Motion to accelerate appeal and application for a stay denied.
Simon H. Rifkind and Edward N. Costikyan for appellants.
Louis J. Lefkowitz, Attorney General of New York. Daniel M. Cohen and George D. Zuckerman, Assistant Attorneys General, Donald Zimmerman, Special Assistant Attorney General, and Orrin G. Judd for Lomenzo et al.; and Leonard B. Sand and Max Gross for WMCA, Inc., et al., appellees.
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 [381 U.S. 431, 432] 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.
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. [381 U.S. 431, 434]
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 the 1966 election, meeting both federal and state constitutional requirements; 3 and (3) to issue a call for a constitutional convention to promulgate a permanent reapportionment plan to govern the 1968 and subsequent elections. 4 The Speaker of the Assembly and the President pro tem of the State Senate (the intervenors-appellants here) thereupon sought leave to intervene in the district court proceedings and to persuade the court to modify the interim relief in accordance with these legislative proposals. Their application for leave to intervene was granted, but the District Court refused to modify its earlier order. These applications for a stay and accelerated appeal followed immediately.
These matters bristle with difficult and important questions that touch the nerve centers of the sound operation of our federal and state judicial and political systems. They involve, among other things, the right of a federal court to order that one house of a state legislature shall temporarily be of greater size than is permitted by the State Constitution. Surely such questions are deserving of plenary consideration and reasoned explication. By denying a stay and refusing to accelerate this appeal, the Court, instead, has in effect decided them not only summarily but also sub silentio. For while the denial of a stay does not technically moot the appeal, it is manifest that such is the practical effect of the Court's action, since [381 U.S. 431, 435] in normal course the appeal will not even be heard until after the presently ordered November election has taken place.
Without prejudging the question, the propriety of a federal court's ordering a state election to proceed under a plan which the highest court of the State has found to violate the State Constitution in respects not claimed to be violative of the Federal Constitution, when a number of alternatives are available, raises what I consider to be very serious federal questions which this Court should at least hear. All parties have shown themselves willing to argue the case promptly. I would set the case for immediate argument, and would have the Court render its decision on the stay promptly thereafter, with opinions on the merits of the controversy to follow in due course. Compare Cooper v. Aaron, 358 U.S. 1 . 5
I am wholly at a loss to understand the Court's casual way of disposing of this matter and I can find no considerations of any kind which justify it. The Court should be willing to face up articulately to these difficult problems which have followed as a not unnatural aftermath of its reapportionment decisions of last Term.
[ Footnote 2 ] New York Assembly Intro. 6051, Print: 7067, vetoed by the Governor on May 27, 1965.
[ Footnote 3 ] New York Assembly Intro. 6050, Print. 7066, vetoed by the Governor on May 27, 1965.
[ Footnote 4 ] New York Assembly Intro. 5695, Print. 5988.
[ Footnote 5 ] The necessity for a prompt disposition is evidenced by the fact that the State's primary machinery must be set in motion today if an election next November is to take place. [381 U.S. 431, 436]