In re Orans

McNally, J. This appeal is from an order permitting intervention of Travia and Zaretzki, respectively, Speaker of the Assembly and President Pro Tern 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 (U. S, Code, tit. 42, §§ 1983,1988) was dismissed as nonjusticiable. (WMCA v. Simon, 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 (208 F. Supp. 368). The second appeal to the United States Supreme Court was decided in June, 1964 (sub nom. WMCA v. Lomenzo, 377 U. S. 633). 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 appor — 220 — tionment 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 November, 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. Ill, § 2). The said order was affirmed in February, 1965 (sub nom. Hughes v. WMCA, 379 U. S. 694). 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 v. Lomenzo, 238 F. Supp. 916.) The District Court noted the pendency of this proceeding, that it did not raise claims under the Fedéral Constitution, and said, in part (pp. 921-922): “ all 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. Ill, § 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 (45 Misc 2d 616, 619). The order herein entered March 24, 1965, in part, declares Plan A violative of section 2 of article ITT 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 — 221 — 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. Ill, § 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. [2]), the order of Special Term herein entered March 24, 1965 was affirmed (15 N Y 2d 339). The Court of Appeals noticed the issues of fact as to “ the use of the gerrymander ” 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) and reinstated by the Court of Appeals (16 N Y 2d 27). Glinshi 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 — 222 — Court directing the election, Glinslci 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 % 1965 on the basis of Plan A to be final and binding, The order of the United States District Court made July 13, 1965 was unanimously affirmed by the Supreme Court of the United States. (WMCA v. Lomenzo, No. 85, decided Oct. 11, 1965,) The Supreme Court 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). Mr. Justice Harlan wrote a concurring opinion applicable to both cases. We agree with the reasoning of the concurring opinion of Mr, Justice Harlan and conclude, as he did, that Plan A is but a temporary measure; the Federal courts have abstained from passing on the validity of the plan under the New York State Constitution and the determination of Matter of Orans (supra) by the Court of Appeals fails to present any substantial Federal question. In sum, the orders of the United States District Court serve only to suspend until the end of 1966 the New York constitutional limitation of the membership of the Assembly to 150, (N. Y, Const., art. Ill, § 2.) The order herein entered March 24, 1965 and affirmed by the Court of Appeals (15 N Y 2d 339) provides in paragraph 14 thereof for the retention of jurisdiction in the broadest terms. Within its ambit is any application “ 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.” Appellants seek to limit the said reservation of jurisdiction to the trial of the factual issues relative to convenience, contiguity and compactness in respect of Assembly Districts mandated by the New York State Constitution (art. Ill, § 3). This contention ignores completely the part of the reservation of jurisdiction related to proceedings in the District Court in WMCA v. Lomenzo. In the final analysis, appellants challenge the said reservation of jurisdiction as beyond the power of the court. We may not at this time entertain the issue of the jurisdiction exercised by ¡Special Term in the light of the affirmance of said order by the Court of Appeals. It is to be noted, how — 223 — ever, that the weight of authority is that judicial review of legislative apportionment includes the power to retain jurisdiction pending corrective legislative action. (People ex rel. Engle v. Kerner, 32 Ill. 2d 212, approved in Scott v. Germano, 381 U. S. 407; Jackman v. Bodine, 43 N. J. 453; Asbury Park Press v. Woolley, 33 N. J. 1; Davis v. McCarty, 388 P. 2d 480 [Okla.]; Butcher v. Bloom, 415 Pa. 438; State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544.) We fail to discern a potential confrontation of power among co-ordinate elements of the government of the State of New York. It is undeniable that the Supremacy Clause of the United States Constitution is operating to compel conformity with the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution and towards that end the New York constitutional formulas for apportionment have been held to be in violation thereof. (WMCA v. Lomenzo, 377 U. S. 633.) Under Federal mandate the 1965 and 1966 Legislatures have been elected in contravention of the New York State Constitution. The Federal court, concerned primarily with vindication of the Equal Protection Clause, nevertheless has afforded several opportunities for the submission of a legislative reapportionment comporting with the applicable Federal and New York constitutional provisions. Moreover, the Federal court has deferred to the New York courts and abstained from passing on New York constitutional reapportionment questions. The District Court nevertheless retains jurisdiction pending a permanent reapportionment satisfying New York and Federal constitutional requirements thereon. In essence, New York State is presently enabled to exercise its sovereignty in respect of reapportionment because of Federal restraint in the application of the Supremacy Clause. The Federal policy is set forth in Scott v. Germano (381 U. S. 407, 409): “ We believe that the District Court should have stayed its hand. The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged. Maryland Committee v. Tawes, 377 U. S. 656, 676 (1964); Scranton v. Drew, 379 U. S. 40 (1964), citing Butcher v. Bloom, 415 Pa. 438, 203 A. 2d 556 (1964); Jackman v. Bodine, 43 N. J. 453, 473, 205 A. 2d 713, 724 (1964). See also Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40 (1956), and discussion thereof in Baker v. Carr, 369 U. S. 186, 235-236 (1962). * * * The case is remanded with directions that the District Court enter an order fixing a reasonable time within which the appropriate — 224 — agencies of the State of Illinois, including its Supreme Court, may validly redistrict the Illinois State Senate; provided that the same he accomplished within ample time to permit such plan to be utilized in the 1966 election of the members of the State Senate, in accordance with the provisions of the Illinois election laws. * * * The District Court shall retain jurisdiction of the case and in the event a valid reapportionment plan for the State Senate is not timely adopted it may enter such orders as it deems appropriate ”. It should be clear that where, as here, the State constitutional formulas and the legislative apportionment based thereon fail to comply with the Fourteenth Amendment to the Federal Constitution there is concurrent Federal and State jurisdiction under Federal aegis to effectuate compliance not only with the Fourteenth Amendment but, in addition, the State constitutional provisions which do not impinge on the Equal Protection Clause of the Fourteenth Amendment. “ The duty to comply with the equal protection clause rests upon the three branches of State Government and upon the people of the State as well. The question is what part must be played by each.” (Jackman v. Bodine, 43 N. J. 453, 473.) There is no doubt that it is the primary obligation of the Legislature to apportion. (Matter of Orans, supra, p. 352.) Manifestly, its failure to respond to its obligation will not preclude reapportionment. It is also the primary obligation of the judiciary to review a legislative apportionment. (N. Y. Const., art. III, § 5.) We may not and do not assume that the 1966 Legislature, although numerically in excess of the constitutional limitation (art. III, § 2) will not discharge its obligation to reapportion in compliance with the final order of the District Court. Nevertheless, the reapportionment must be enacted on or before February 1, 1966, if it is to be reviewed in the light of the applicable provisions of the New York State Constitution. Appellants do not and on this record cannot resist the conclusion of Special Term that legislative and judicial action towards the end of a valid reapportionment in accord with the Federal and New York State Constitutions is not feasible for elections to be held in 1966 unless a legislative reapportionment is initially made on or before February 1,1966. The constitutional obligations of the Legislature and the judiciary in respect of reapportionment are equal and coextensive. That legislative failure to timely apportion may give rise to a Federal reapportionment is abundantly clear on this record. Time is of the essence. u Legislative reapportionment is primarily a matter for legislative consideration and determi — 225 — nation, and * * * judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion (Reynolds v. Sims, 377 U. S. 533, 586.) The fact that reapportionment may be primarily a legislative function does not mean that the courts, in circumstances such as these, must stand by helplessly when such function is not discharged. The judiciary as well as the Legislature of this State is under the duty to preserve its constitutional government. ‘ ‘ The courts of this State and especially our court are part of the government of the State and we have our own obligation to do what we can to keep in existence the necessary elements of State government.” (Matter of Orans, supra, p. 353.) The People of the State of New York are entitled to have a Legislature elected in accordance with both Federal and State constitutional standards. If the State Legislature fails to take action to achieve such result, must the unconstitutional method of apportionment be continued indefinitely or until a Federal court formulates a new plan? We think not. In such case our State courts would be derelict in the performance of their duties were they not to intervene — when requested to do so — and take steps to insure that the People of this State have constitutionally valid representation. To take action in such circumstances does not constitute a usurpation of the legislative function. It is merely the taking of such action to fill a vacuum in an area where none may be permitted to exist. We do not consider the language of the order which provides that the respondents “ shall submit such a plan ” asa direction to the Legislature. Considered in its entirety, the order appealed from merely states that if such action is not taken, the court will take the necessary steps looking toward the formulation of such a plan, thus making provision for filling the vacuum which would then exist. Thus, it does not violate the spirit of the doctrine of separation of powers. For the legislative reapportionment to be effective, it must be timely. No less can be said in the circumstances. There is no arrogation of political power by the judiciary; on the contrary, the Legislature has been and is being afforded every opportunity to exercise its primary obligation to reapportion with the caveat that if it fails to do so timely, the court will then fashion reapportionment to comply with constitutional requirements — State and Federal. The order should be affirmed, without costs.