WMCA, Inc. v. Lomenzo

• Decision Date: 26 January 1965
• Citation: 238 F. Supp. 916
• Parties: WMCA, INC., R. Peter Straus, Joseph De Maio, Edward Lind, S. Thomas Delaney, Edward C. Brown, James J. McCafferty, Plaintiffs, v. John P. LOMENZO, Secretary of State of the State of New York, Louis J. Lefkowitz, Attorney General of the State of New York, Francis X. O'Rourke, Chairman, Board of Supervisors, Westchester County, and Arthur Cromarty, Chairman, Board of Supervisors, Suffolk County, Defendants, and Paul R. Screvane, President of the City Council of the City of New York, Eugene H. Nickerson, County Executive, Nassau County, Maurice J. O'Rourke, James Power, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Supporting Defendants, and John H. Hughes and Lawrence M. Rulison, Intervening Defendants.
• Court: U.S. District Court — Southern District of New York

238 F. Supp. 916

WMCA, INC., R. Peter Straus, Joseph De Maio, Edward Lind, S. Thomas Delaney, Edward C. Brown, James J. McCafferty, Plaintiffs, v. John P. LOMENZO, Secretary of State of the State of New York, Louis J. Lefkowitz, Attorney General of the State of New York, Francis X. O'Rourke, Chairman, Board of Supervisors, Westchester County, and Arthur Cromarty, Chairman, Board of Supervisors, Suffolk County, Defendants, and Paul R. Screvane, President of the City Council of the City of New York, Eugene H. Nickerson, County Executive, Nassau County, Maurice J. O'Rourke, James Power, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Supporting Defendants, and John H. Hughes and Lawrence M. Rulison, Intervening Defendants.

United States District Court S. D. New York.

Heard January 21, 1965.

Order Filed January 26, 1965.

Opinion Filed February 1, 1965.

Resettled Order Filed February 16, 1965.

COPYRIGHT MATERIAL OMITTED

Robinson, Silverman, Pearce, Aronsohn & Sand, New York City, for plaintiffs, Leonard Sand, and Max Gross, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Orrin G. Judd, and Donald Zimmerman, New York City, of counsel.

Leo A. Larkin, Corp. Counsel of the City of New York, Morris Handel, George H. P. Dwight, and Joel Cohen, New York City, of counsel.

Jack Weinstein, Mineola, N. Y., for Eugene H. Nickerson, County Executive, Nassau County, Seymour S. Ross, Stephen Schlissel, and William D. Siegel, Mineola, N. Y., of counsel.

Gordon Miller, County Atty. of Westchester County, Irving Libenson, Deputy County Atty., Stephen G. Doig, Jr., County Atty. of Rockland County, Arnold Becker, Asst. County Atty., Mackenzie, Smith, Lewis, Mitchel & Hughes, Syracuse, N. Y., for John H. Hughes and Lawrence M. Rulison, Richard S. Scolaro, Syracuse, N. Y., of counsel.

Before WATERMAN, Circuit Judge, and RYAN and LEVET, District Judges.

WATERMAN, Circuit Judge:

Defendants Lomenzo, Lefkowitz, and Francis X. O'Rourke, and intervening defendants Hughes and Rulison, have moved for an order declaring that the New York State Reapportionment Compliance Act, N.Y. Laws 1964, ch. 976, 977, 978, 979, 981, complies with the order of this court dated July 27, 1964. Defendants Lomenzo and Lefkowitz have also moved for an order enjoining proceedings pending in the New York State Supreme Court to test the validity of the Act under Article III of the New York State Constitution. Plaintiffs, supported by defendants Screvane, Nickerson, Maurice J. O'Rourke, and Power, have moved for a contrary order declaring that the Act is in violation of Amendment XIV of the United States Constitution and of Article III of the New York State Constitution. They have also asked that we stay further proceedings in this court pending the outcome of the state court proceedings.

The history of this protracted suit has been fully set forth in WMCA v. Lomenzo, 377 U.S. 633, 635-641, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964), and need not be repeated here. In that decision, rendered June 15, 1964, the United States Supreme Court held that "New York's scheme of legislative apportionment," contained in Article III of the New York State Constitution, was in violation of the Equal Protection Clause of the United States Constitution. The Supreme Court interpreted the Equal Protection Clause to require "that seats in both houses of a bicameral state legislature must be apportioned substantially on a population basis," and it found that "New York's constitutional formulas relating to legislative apportionment demonstrably include a built-in bias against voters living in the State's more populous counties." Id. at 653-654, 84 S.Ct. at 1428.

The case was remanded to this court for further proceedings. Following a hearing, we issued our order, dated July 27, 1964, which decreed in part as follows:

"2. The scheme of legislative apportionment of the State of New York is hereby declared to be unconstitutional and void as being in conflict with the XIV Amendment of the Constitution of the United States;

"3. * * * The 1964 election of Assemblymen and Senators shall be conducted as presently scheduled; provided that the terms of said Members so elected on November 3, 1964, or at any special election to fill vacancies, shall expire on December 31, 1965, and providing further that not later than April 1, 1965, the Legislature shall have enacted into law a valid apportionment scheme that is in compliance with the XIV Amendment of the United States Constitution and which shall be implemented so as to effect the election of Members of the Legislature at the election in November, 1965, Members so elected to hold office for a term of one year ending December 31, 1966.

* * * * * *

"6. This Court retains jurisdiction of this case to conduct further proceedings as may be necessary."

On October 19, 1964, defendants Lomenzo and Lefkowitz (hereinafter called the State) filed a jurisdictional statement asking the Supreme Court to reverse our order insofar as it compelled legislative reapportionment by April 1, 1965 and an election pursuant thereto in November, 1965. Shortly thereafter, intervening defendants Hughes and Rulison (hereinafter called the State Senators) filed a similar jurisdictional statement. We have now been informed that the Supreme Court permitted the State to withdraw its appeal on January 22, 1965, but that the appeal by the State Senators is still pending. The subject matter of the appeal, however, is not at issue in the proceedings now before us for disposition; we are here concerned with matters as to which this court has retained jurisdiction.

Meanwhile, on July 12, 1964, in response to the decision of the Supreme Court, the Governor of the State of New York appointed a Citizens' Committee on Reapportionment to study basic reapportionment problems. As soon as the Citizens' Committee had submitted its report on December 1 (hereinafter cited Cit. Comm. Rep.), the Governor called a special session of the Legislature to meet on December 15 to act on reapportionment. By the time the Legislature convened, it also had before it the report of the Joint Legislative Committee on Reapportionment (hereinafter cited Jt. Leg. Comm. Rep.) proposing a reapportionment statute based in part on the recommendations of the Citizens' Committee. Pursuant to the proposals of the two committees, the Legislature enacted its Reapportionment Compliance Act on December 22 and 23, 1964, to take effect January 1, 1965.

The basic act, N. Y. Laws 1964, ch. 976 (hereinafter Plan A), is the most traditional of the four reapportionment schemes enacted but is the one least preferred by the Legislature. It creates and districts a Senate of 65 members and an Assembly of 165 members. The districts are apportioned on the basis of the 1960 citizen population, which is the 1960 federal census population minus aliens. Each member of both houses has one vote in the Legislature.

Three succeeding amendments to the basic act, N. Y. Laws 1964, ch. 977-78, 979, 981 (hereinafter Plans B, C and D), establish reapportionment schemes increasingly preferred by the Legislature but also increasingly novel. Plan B creates and districts a Senate of 65 members and an Assembly of 180 members. The districts are apportioned, not on the 1960 citizen population, but on the basis of the 1962 vote for Governor, including blank and void ballots. As under Plan A, each member of both houses has one vote.

Plan C creates and districts a Senate of 65 members, each with one vote, and an Assembly of 186 members, casting a total of 165 votes. 147 members of the Assembly have a full vote, and 39 members have fractions of a vote ranging from ¾ to 1/6 according to the population of their districts. As under Plan A, districts are apportioned on the basis of the 1960 citizen population.

Finally, Plan D creates and districts a Senate of 65 members, each with one vote, and an Assembly of 174 members, casting a total of 150 votes. As under Plan C, 127 members of the Assembly have a full vote, and 47 members have fractions of a vote ranging from ¾ to 1/6 . As under Plan B, districts are apportioned on the basis of the 1962 vote for Governor.

According to the report of the Joint Committee, Plan D is intended to be the law of New York State. However, if "Plan D were held to be invalid, Plan C would become operative. If Plan C were held to be invalid, Plan B would become operative. If Plan B were determined to be invalid, Plan A, or so much thereof as a court of competent jurisdiction would determine to be valid, would become operative." Jt. Leg. Comm. Rep. 16.

Each plan provides that if the districts described therein contain minor descriptive errors, the Secretary of State shall correct the errors according to standards set forth in the Act (§ 403). Plans B, C, and D also state that if a court shall invalidate the system of fractional voting or the use of a voter population basis, it is the intent of the Legislature that the remainder of any plan incorporating these provisions shall also be invalid (§ 401).

On December 30, 1964, the State filed notice of a motion asking this court to declare that the Act complies with our order of July 27, 1964. The State Senators and defendant Francis X. O'Rourke subsequently supported the State's motion at a hearing before this court held on January 21, 1965. On December 31, 1964, defendant Nickerson (hereinafter called Nassau County) filed notice of a cross-motion, asking this court to declare that the Act violates the Constitutions of the United States and of New York State, and for appropriate relief. Similar notices were later filed by plaintiffs and by defendants Screvane, Maurice J. O'Rourke, and Power (hereinafter called New York City).

At the hearing on January 21, we were informed that on the previous day a Justice of the New York State Supreme Court had ordered state officials to show cause on January 29 why the Act...