Orans, Matter of

• Citation: 24 A.D.2d 217,265 N.Y.S.2d 49
• Parties: Petition of Jerome T. ORANS, Petitioner-Respondent, To Review Chapters 976, 977, 978, 979 and 981 of the Laws of 1964, Apportioning and Districting the Senate and Assembly of the State of New York, Nelson A. ROCKEFELLER, Governor, Louis J. Lefkowitz, Attorney General, Malcolm Wilson, Lieutenant Governor, and Ansley Borkowski, Clerk of the Assembly, Respondents-Appellants, Anthony J. Travia and Joseph Zaretzki, Applicants for Intervention-Respondents. The VILLAGE INDEPENDENT DEMOCRATS, Carol Greitzer, Edward I. Koch, Martin Berger and Lorraine Richman, Petitioners-Respondents, To Review the Constitutionality of Chapters 976, 977, 978, 979 and 981 of the Laws of 1964, apportioning and districting the Senate and the Assembly of the State of New York pursuant to Article III, Section 5 of the Constitution of the State of New York, and pursuant to Chapter 773 of the Law of 1911, Nelson A. ROCKEFELLER, Governor, Louis J. Lefkowitz, Attorney General, Malcolm Wilson, Lieutenant Governor, and Ansley Borkowski, Clerk of the Assembly, Respondents-Appellants, Anthony J. Travia and Joseph Zaretzki, Applicants for Intervention-Respondents.
• Decision Date: 09 December 1965
• Court: New York Supreme Court Appellate Division

Page 49

265 N.Y.S.2d 49

24 A.D.2d 217

Petition of Jerome T. ORANS, Petitioner-Respondent, To Review Chapters 976, 977, 978, 979 and 981 of the Laws of 1964, Apportioning and Districting the Senate and Assembly of the State of New York, Nelson A. ROCKEFELLER, Governor Louis J. Lefkowitz, Attorney General, Malcolm Wilson Lieutenant Governor, and Ansley Borkowski, Clerk of the Assembly, Respondents-Appellants, Anthony J. Travia and Joseph Zaretzki, Applicants for Intervention-Respondents The VILLAGE INDEPENDENT DEMOCRATS, Carol Greitzer, Edward I Koch, Martin Berger and Lorraine Richman, Petitioners-Respondents, To Review the Constitutionality of Chapters 976, 977, 978, 979 and 981 of the Laws of 1964, apportioning and districting the Senate and the Assembly of the State of New York pursuant to Article III, Section 5 of the Constitution of the State of New York, and pursuant to Chapter 773 of the Law of 1911, Nelson A. ROCKEFELLER, Governor, Louis J. Lefkowitz, Attorney General, Malcolm Wilson, Lieutenant Governor, and Ansley Borkowski, Clerk of the Assembly, Respondents-Appellants, Anthony J. Travia and Joseph Zaretzki, Applicants for Intervention-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 9, 1965.

Donald Zimmerman, New York City, of counsel (Daniel M. Cohen and George D. Zuckerman, New York City, on the brief; Louis J. Lefkowitz), for respondents-appellants.

Simon H. Rifkind, New York City, of counsel (Edward N. Costikyan, Jay Greenfield, New York City, and Mark H. Alcott, New York City, on the brief; Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attorneys), for intervention-respondents.

Justin N. Feldman, New York City, of counsel (Richard W. Hulbert, George M. Cohen and Jerome T. Orans, New York City, on the brief), for petitioner-respondent Orans.

Before BREITEL, J. P., and RABIN, McNALLY, STEVENS and EAGER, JJ.

McNALLY, Justice.

This appeal is from an order permitting intervention of Travia and Zaretzki, respectively Speaker of the Assembly and President pro tem of the Senate of the State of New York, and providing that, if on or before February 1, 1966, legislation shall not have been enacted providing for a plan to reapportion the Senate and Assembly in accord with the Fourteenth Amendment of the United States Constitution and the New York State Constitution, the Court will take such steps with respect to the formulation of a reapportionment plan as provided for in said order.

The New York constitutional formulas for and the legislative apportionment thereunder were initially challenged in 1961. An action to vindicate rights under the Civil Rights Act (42 U.S.C. §§ 1983, 1988) was dismissed as nonjusticiable. (WMCA, Inc. v. Simon, D.C., 202 F.Supp. 741.) On appeal the dismissal was vacated and the action remanded to the District Court for determination on the merits (370 U.S. 190). On August 16, 1962 the District Court dismissed the complaint on the merits (WMCA, Inc. v. Simon, D.C., 208 F.Supp. 368). The second appeal to the United States Supreme Court was decided in June, 1964 (WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 LEd.2d 568). The Supreme Court then held the New York State Constitution formulas and legislative provisions for apportionment to be in violation of the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution and remanded the cause to the District Court to decide whether it was desirable to permit the 1964 election of legislators and afford them the opportunity to fashion a valid legislative apportionment or to delay the election in furtherance of petitioners' voting rights.

On July 27, 1964 the District Court directed the election of Assemblymen and Senators on November 3, 1964 for a term expiring December 31, 1965 and required the Legislature to enact not later than April 1, 1965 an apportionment statute complying with the Fourteenth Amendment to be operative in Nobember, 1965 for the term of one year ending December 31, 1966. Thereby were projected three annual elections in 1964, 1965 and 1966 as contrasted with the biennial elections provided for in the New York State Constitution (art. III, § 2). The said order was affirmed in February, 1965 (Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698).

On December 22 and 23, 1964, at a special session, the Legislature enacted the four plans of reapportionment set forth in chapters 976, 977, 978, 979 and 981 of the Laws of 1964.

This proceeding was commenced by order to show cause dated January 20, 1965 to review said reapportionment statutes in the light of the New York State Constitution. Shortly thereafter, by decree dated January 26, 1965, a three-Judge court of the United States District Court for the Southern District of New York decided that chapter 976 (Plan A) complied and that chapters 977, 978, 979 and 981 did not comply with the Fourteenth Amendment. (WMCA, Inc. v. Lomenzo, 238 F.Supp. 916.) The District Court noted the pendency of this proceeding, that it did not raise claims under the Federal Constitution, and said, in part (921-922): '* * * [A]ll the provisions of Article III of the State Constitution * * * are * * * operative. * * * Finally, there is presently pending a proceeding in the New York State courts, in which those attacking the validity of the Reapportionment Compliance Act can obtain an expeditious hearing on their claims under state law. N.Y.Const. Art. III, § 5. This is clearly an appropriate case for abstention by the federal courts.'

In the light of the prior Federal holding that the reapportionment statutes, except Plan A, did not comply with the Fourteenth Amendment, by stipulation of the parties the issues of fact in this proceeding were limited to a consideration of Plan A (Matter of Orans, 45 Misc.2d 616, 619, 257 N.Y.S.2d 839, 842). The order herein entered March 24, 1965, in part, declares Plan A violative of section 2 of article III of the New York State Constitution in that Plan A provides for 165 members of the Assembly whereas the Constitution limits the number to 150. The said order also provides: '14. This Court retains jurisdiction of the above-captioned proceedings for the purpose of entertaining such applications and conducting such further proceedings as any party may request or as may be appropriate in the light of further proceedings in these proceedings or in WMCA, Inc. v. Lomenzo, including (but without limitation) applications for injunctive or other relief as may be appropriate to give effect to this judgment or as justice may require.'

Special Term also found prima facie evidence of the violation of the constitutional mandate that assembly districts be 'of convenient and contiguous territory in as compact form as practicable' (N.Y.Const., art. III, § 5), and that a hearing of the factual issues thereon would have been necessary were it not for the invalidity of Plan A as a matter of law. Following the holding of Special Term, the District Court extended to May 5, 1965 the time of the Legislature to enact a valid apportionment.

On May 24, 1965 the District Court ordered a general election on November 2, 1965 on the basis of Plan A with certain clerical corrections. The District Court then said, in part: 'Accordingly, we have ordered that a legislative election be held under Plan A on November 2, 1965, members so elected to hold office for terms of one year. Because Plan A violates the New York State Constitution, however, we make no order beyond this one. Therefore, we expect the parties to this suit to present to us reasoned proposals by which the citizens of New York State may obtain permanent legislative apportionment which complies with both the Federal and the State Constitutions. We retain jurisdiction to entertain such proposals.'

On direct appeal to the Court of Appeals because the only questions presented concerned the constitutional validity of the statutes (N.Y.Const., art. VI, § 3, subd. b, par. ), the order of Special Term herein entered March 24, 1965 was affirmed (Matter of Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854). The Court of Appeals noticed the issues of fact as to 'the use of the gerrymender' and also found it unnecessary to comment thereon because Plan A was invalid as a matter of law. Thereafter the Secretary of State of the State of New York was enjoined by order of the Supreme Court of the State of New York, Albany County, from proceeding with an election of members of the Legislature at the general election to be held November 2, 1965. The said order was modified by the Appellate Division, Third Department, in Glinski v. Lomenzo, 24 A.D.2d 655, 261 N.Y.S.2d 280, and reinstated by the Court of Appeals (16 N.Y.2d 27, 261 N.Y.S.2d 281, 209 N.E.2d 277).

Glinski held that Plan A violated the State Constitution and the restraint of the proposed election based thereon was proper in the absence of a final order of the United States District Court directing the election. Glinski was decided July 9, 1965. On July 13, 1965 the United States District Court made its further order expressly declaring the direction for a general election on November 2, 1965 on the basis of Plan A to be final and binding.

The order of the United States District Court, 246 F.Supp. 953, made July 13, 1965 was unanimously affirmed by the Supreme Court of the United States. (WMCA, Inc. v. Lomenzo, 86 S.Ct. 24, decided Oct. 11, 1965.) The Supreme Court, Rockefeller v. Orans, 86 S.Ct. 75, on the same day decided the appeal in Matter of Orans (supra) in a per curiam memorandum which, in part, held: 'Insofar as the decision of the Court of Appeals has been superseded by the order of the District Court, the appeal is dismissed. In all other respects, the appeal is dismissed for want of a substantial federal question.' (Rehearing denied Nov. 22, 1965, 86 S.Ct. 311.) Mr. Justice Harlan wrote a concurring opinion applicable to both cases.

We agree with the reasoning of the...