Travia v. Lomenzo, 1218

• Citation: 85 S.Ct. 1582,381 U.S. 431,14 L.Ed.2d 480
• Decision Date: 01 June 1965
• Docket Number: No. 1218,1218
• Parties: Anthony J. TRAVIA et al. v. John C. LOMENZO et al
• Court: U.S. Supreme Court

381 U.S. 431

85 S.Ct. 1582

14 L.Ed.2d 480

Anthony J. TRAVIA et al.

v John C. LOMENZO et al.

No. 1218.

Supreme Court of the United States

June 1, 1965

Simon H. Rifkind and Edward N. Costikyan, for appellants.

Louis J. Lefkowitz, Atty. Gen. of New York, Daniel M. Cohen and and George D. Zuckerman, Asst. Attys. Gen., Donald Zimmerman, Special Asst. Atty. Gen., and Orrin G. Judd, for Lomenzo and others.

Leonard B. Sand and Max Gross, for WMCA, Inc., and others, appellees.

PER CURIAM.

The motion to accelerate the appeal is denied. The application for a stay, addressed to Mr. Justice Harlan as Circuit Justice and referred by him to the Court for consideration under Rule 50(6), is denied.

Mr. Justice HARLAN, dissenting.

An application has been made to me, as Circuit Justice, for a stay pending appeal from an order of a three-judge District Court, dated May 24, 1965, ordering New York to hold a special legislative election on November 2, 1965, under the electoral scheme embodied in reapportionment 'Plan A'¹ passed by the New York Legislature, signed by the Governor, and held unconstitutional under the State Constitution by the New York Court of Appeals. The stay application was accompanied by a motion, addressed to the Court, asking for an acceleration and immediate hearing of the appeal, to which the relief sought from me is incident. Because the stay and acceleration questions were in my opinion inextricably related and involved issues of far-reaching importance, I referred the stay application to the full Court for determination (see Sup.Ct.Rule 50(6)) in conjunction with the motion to accelerate the appeal. The Court now denies both the stay and motion to accelerate, and I respectfully dissent.

'Plan A' was one of four alternative reapportionment plans passed by the New York Legislature under the impact of an order of the District Court, dated July 27, 1964, entered pursuant to this Court's decision in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568, which held New York's then-existing method of legislative apportionment violative of the Fourteenth Amendment. The District Court order provided by way of interim relief that (1) the November 1964 legislative elections could proceed under the invalidated apportionment system, but the legislators would be permitted to serve for only a one-year period, instead of the two-year term provided in the State Constitution; (2) a special November 1965 election must be held under a constitutionally valid apportionment plan to be enacted by the New York Legislature and submitted to the Dis- trict Court for approval not later than April 1, 1965 (later extended to May 5, 1965), the legislators so elected again to serve for only one year; and (3) the regularly scheduled November 1966 election, for a normal two-year term, would be held under the same or some other court-approved reapportionment plan. This Court summarily affirmed the District Court's order. Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698. Two dissenting Justices would have set the case for plenary consideration, and two concurring Justices expressly noted that the Court's action did not foreclose the District Court from modifying its interim order in light of subsequent developments.

In December 1964 the 1964 Legislature, meeting in special session, passed and the Governor signed four alternative reapportionment plans, one of which, 'Plan A,' is involved in the matter now before us. On January 26, 1965, the three-judge District Court found that 'Plan A' satisfied federal constitutional requirements, but that each of the other plans did not. 238 F.Supp. 916. On April 14, 1965, the New York Court of Appeals held all four plans invalid under the State Constitution, in that each provided for an Assembly of more than 150 members, thus exceeding the membership limit prescribed by the New York Constitution, Art. 3, § 2. In re Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854.

Ignoring the New York Court of Appeals' holding that Plan A violated the State Constitution, a majority of the District Court, on May 18, 1965, ordered the November 1965 state legislative election to proceed under that plan. One judge dissented, considering that a more appropriate, though admittedly not wholly satisfactory, 'interim' solution would be to permit the November 1965 election to go forward under the old reapportionment formula, with the legislators thus elected being accorded 'weighted votes' in the legislature based on population.

On May 24, 1965, the State Legislature passed three bills, the substantial effects of which were (1) to adopt the dissenting district judge's weighted voting formula for the 1966 legislative session, without holding an election this fall;² (2) to create a bi-partisan commission to devise a new reapportionment formula for...