In re Orans

Breitel, J. P. (dissenting).

The order granting the motion to intervene and purporting indirectly to hold the State Legis*226lature in terrorem unless it propound a valid reapportionment plan by February 1, 1966 should be reversed and the motion denied. The order constitutes an extraordinary and premature reach of power over the two other co-ordinate branches of government, the Legislative and the Executive, a distortion of a procedural remedy, and an unnecessary impulse toward a constitutional conflict and a potential confrontation of power among co-ordinate elements of State government.

Special Term granted a motion to intervene on behalf of the Speaker of the State Assembly and the Temporary President of the State Senate, whose terms as such expire December 31, 1965, a new Legislature having been elected recently to take office in January, 1966. The order also makes directions for the 1966 election of the Legislature and in preparation for it directs respondents to the motion to “ submit ” to Special Term, not later than February 1, 1966, a reapportionment plan or plans valid under the State and Federal Constitutions. The court also directed that the plan should govern primary contests for candidacies for the 1967-1968 Legislature, the nomination of delegates to any future State Constitutional Convention, and any special elections to be held prior to 1969. Having thus disposed of these basic issues, the court, in its order, reserved to itself, in the event respondents to the motion did not proceed with reasonable diligence “so as to permit completion of a valid plan by February 1, 1966 ” the power to itself formulate such a plan and in aid of its efforts to appoint an appropriate number of Referees or jury of experts to assist. The court also reserved the power, evidently without requiring that there be a challenge to any plan, to designate such Referees or experts to assist the court in passing on any plan or plans that might be submitted.

Respondents to the motion are the Governor, the Lieutenant Governor, and the Attorney-General, and the movants are the two majority leaders of the outgoing Legislature, the present Speaker of the Assembly, and the President Pro Tern of the Senate. Respondents to the motion, as such, do not have the power to make or adopt any reapportionment plan. That power, which must be exercised by law, i.e., by the enactment in form of statute, resides with the Legislature and the Governor concurring (N. Y. Const., art. III, § 4; art. IV, § 7; Matter of Koenig v. Flynn, 234 App. Div. 139, affd. 258 N. Y. 292). Nevertheless, it is clear, whether proper parties were before it or not, that Special Term .intended to address its order to those with the power to adopt (albeit the order speaks only of “ submitting”) a reapportionment plan for the State,

*227The proceeding in which the order was entered was one originally brought to review four reapportionment plans enacted by the Legislature and Governor. Such a proceeding was a proper one with proper parties as designated and authorized by chapter 773 of the Laws of 1911. Its object was to declare the plans invalid and enjoin the appropriate State officials from acting under them. The object was initially fulfilled, the plan (Plan A) surviving earlier Federal court action was declared invalid and its use enjoined (Matter of Orans, 15 N Y 2d 339, affg. 45 Misc 2d 616, per Levy, Matthew M., J.). However, the Federal courts subsequently qualifiedly overruled the State courts and directed the use of the stricken plan for the purposes of the 1965 election just passed.

Preliminarily, it should be observed what cannot be gainsaid, namely, that the State of New York is now under a Federal judicial mandate to reapportion its Legislature under applicable rules laid down by the Supreme Court of the United States under the Fourteenth Amendment. Under the 'Supremacy Clause (U. S. Const., art. VI) that mandate is not only primary, indisputable, and irresistible, but is as binding on State Judges as on Federal officials. Nevertheless, this State’s highest court, the Federal District Court, and the Supreme Court have walked a narrow, delicate path between the requirements of the State and Federal Constitutions in order to preserve untouched the mandates of the State Constitution, or so much of them as do not compel a violation of the Federal Constitution, reserving to the State courts the interpretation of the State Constitution (Matter of Orans, 15 N Y 2d 339, 346-347, supra; Reynolds v. Sims, 377 U. S. 533, 581 n. 63, 584; WMCA v. Lomenzo, 238 F. Supp. 916, 921-922, 927, supra).

The preservation of this delicate line has made for the difficulties and the power confrontations between the State and Federal courts this past Summer (Glinski v. Lomenzo, 16 N Y 2d 27; WMCA v. Lomenzo, 246 F. Supp. 953, affd. 282 U. S. 4). But not until the recent order in this case has there been injected in this State, apart from the questions of prematurity and the distortion of a procedural remedy, a conflict and power confrontation among the elements of the State government. And this time there is no Supremacy Clause to resolve the confrontation.

The Federal courts and our highest court have made it patent that the political power to reapportion, as distinct from the judicial power to review, belongs to the Legislature, and that only in default of that power being exercised will the Federal courts intervene (Reynolds v. Sims, 377 U. S. 533, 586, supra; *228Matter of Orans, 15 N Y 2d 339, 352, supra). Thus far, our highest State court has not yet declared that it has the power or would exercise the power to intervene and do what the Legislature has or may fail to do, albeit the occasion was critical and disturbing enough this past Summer. This may yet happen, as it has in other .States, and then perhaps on the theory that the Federal Constitution, as interpreted by the Federal courts, and applying the Supremacy Clause, confers such power on the State courts (see Scott v. Germano, 381 U. S. 407, 409; Maryland Committee v. Tawes, 377 U. S. 656, 676 ; and, e.g., Butcher v. Bloom, 415 Pa. 438; Jackman v. Bodine, 43 N. J. 453, 473 ;* cf. Seaman v. Fedourich, 16 N Y 2d 94,102, involving, however, only a declaration of invalidity, i.e., review, of local districting, and not the judicial imposition of a judicially designed districting plan).

To be sure, the State Constitution has now long contained a provision giving the State Supreme Court the power to review an apportionment made by the Legislature (art. III, § 5, last par.; Matter of Sherrill v. O’Brien, 188 N. Y. 185, 195-198). In this respect, the State courts were never inhibited by the self-imposed political ” bar in reviewing legislative apportionments, which was not removed from the Federal courts until the decision in Baker v. Carr (369 U. S. 186). On the other hand, the New York State Constitution does not confer the power to reapportion on the State courts as distinct from the power to review. The judicial power to review may, of course, not be confused with the political power to adopt an apportionment or districting plan. The statute (L. 1911, ch. 773), implementing the constitutional power to review, obviously, cannot grant to the State Supreme Court any greater power than is conferred by the State Constitution. It does not, in any event. The statutory provision empowering the court to grant “ such other relief as may be proper ” (§ 3), by every rational mode of interpretation, connotes only ancillary implementation of the judicial power to review conferred in chief.

In Matter of Orans (15 N Y 2d 339, supra, this case in its earlier phase) the State Court of Appeals in each of the several *229opinions in that court, carefully abstained from suggesting that the court had the power or would intrude on the legislative power to reapportion. True, reference was made to the Federal courts so acting, and then only “as a last resort ” or “ out of necessity ” (p. 352). The court, however, confined itself to asserting its power of judicial review over the pending reapportionment plan under the State Constitution, to the provisions of which it extended meticulous respect, and limited its order to 'implementing that judicial power. Even the Supreme Court so viewed the exercises of jurisdiction in the past by the State Court of Appeals. Thus, in WMCA v. Lomenzo (377 U. S. 633, 653) the court footnoted: “ Decisions by the New York Court of Appeals indicate that state courts will do no more than determine whether the New York Legislature has properly complied with the state constitutional provisions relating to legislative apportionment in enacting implementing statutory provisions. See, e.g., In re Sherrill, 188 N. Y. 185, 81 N. E. 124 (1907); In re Dowling, 219 N. Y. 44, 113 N. E. 545 (1916); and In re Fay, 291 N. Y. 198, 52 N. E. 2d 97 (1943).”

Under the circumstances, the arrogation by Special Term, of the political power to apportion, albeit conditionally and by means of an in terrorem mechanism, was imprudent and an abuse of discretion. It was unwarranted by any provision of the State Constitution, or in lieu thereof, by any authoritative applicable judicial precedent reading that power into the State Constitution, or by any Federal judicial precedent requiring a State court to exercise such a power by virtue of the Supremacy Clause and to ignore its State Constitution. So it appears, unless by some logical or political legerdemain unconstitutional exercises of judicial power are less invalid than unconstitutional legislative apportionments.

Beyond this fundamental hurdle to State court action, especially lower court action, the order was premature. The Legislature to which it was addressed had not yet been elected and still has not taken office. Moreover, it is a Legislature elected on a reapportionment satisfying Federal constitutional standards, a critical difference for this purpose, when it is compared with a Legislature, many of whose members faced political extinction from any major reapportionment. There is no continuity between separately elected State Legislatures (Matter of Stickney, 110 App. Div. 294, 298-299, affd. 185 N. Y. 107). Consequently, the new Legislature was not represented in the proceeding. So, too, there was and could hardly be any showing that the new Legislature would not do what it was obliged to do by the decree of the Federal court, now that the judicial *230determinations of the past Summer have made it clear that the problem was obviously in its last crisis, if judicial reapportionment by the State‘or the Federal courts were to be avoided.

The effect of the Governor being a party to the proceeding raises additional difficulties because the writ of the court does not run to the chief executive (People ex rel. Broderick v. Morton, 156 N. Y. 136; Gaynor v. Rockefeller, 21 A D 2d 92, 98, affd. 15 N Y 2d 120).

Lastly, the procedural deformity utilized by movants to base the order is self-elevating bootstrapping at its worst. The proceeding in which the motion was made had been brought for an entirely different and proper purpose, namely, to review the questioned reapportionment plan adopted by the Legislature, under a procedure with proper parties provided by the State Constitution and the implementing review statute. That purpose had been fulfilled, and the power reserved by Special Term, at that time (per Matthew M. Levy, J.), related to the ancillary implementation of that judicial review. By no stretch of even a fevered imagination could the proceeding or the statute under which it was brought be extended to comprise the political power to make a new apportionment or to threaten one. Certainly, Mr. Justice Levy’s elaborated opinion provides no suggestion of such an extraordinary presumption (Matter of Orans, 45 Misc 2d 616, supra).

Accordingly, I dissent and vote to reverse the order, on the law, and to deny the motion.

Rabin and Stevens, JJ., concur with McNally, J.; Breitel, J. P., dissents in opinion in which Eager J., concurs.

Order, entered on September 2, 1965, affirmed, without costs and without disbursements.

New Jersey’s Chief Justice Weintraub, although assuming the existence in the court of the power to apportion, aptly stated (Jackman v. Bodine, supra, p. 473): “We think it clear that the judiciary should not itself devise a plan except as a last resort. The reasons, simply stated, are that the prescription of a plan of apportionment is laden with political controversy from whieh the judiciary cannot be too distant, and further, that if the judiciary should devise an interim plan, that plan will likely seem so attractive to some as to impede the search for common agreement.”