
    Frank J. Glinski, Individually and as State Senator for the 56th Senatorial District of New York, et al., Appellants, v. John P. Lomenzo, Individually and as Secretary of State of the State of New York, Respondent.
    Argued July 8, 1965;
    decided July 9, 1965.
    
      Robert B. Fleming, Andrew M. Pinckney, Daniel R. Idzik and William F. Keenan, in person, for appellants.
    I. The supremacy clause and the Federal court order of May 24, 1965 do not bar injunctive relief to prevent a plan A legislative election in 1965. (Baker v. Carr, 369 U. S. 186; Reynolds v. Sims, 377 U. S. 533; Valenti v. Dempsey, 211 F. Supp. 911; Cooper v. Aaron, 358 U. S. 1; Thomason v. Cooper, 254 F. 2d 808; Butterworth v. Dempsey, 237 F. Supp. 302; League of Nebraska Municipalities v. Marsh, 232 F. Supp. 411; Penn Dairies v. Milk Control Comm., 318 U. S. 261.) II. The supremacy clause and the Federal court order of July 27,1964 do not bar declaratory relief against a plan A election in 1965 and determining that the present Legislature may sit past 1965. (Matter of Sherrill v. O’Brien, 188 N. Y. 185; Hughes v. WMCA, 379 U. S. 694.) III. Neither the supremacy clause nor New York law bars the Supreme Court of New York from reapportioning the State itself, with the aid of a special master or Referee, as need be, to meet both Federal and valid State requirements. (People ex rel. Engle v. Kerner, 32 Ill. 2d 212; WMCA v. Lomenzo, 238 F. Supp. 916, 377 U. S. 633; Baker v. Carr, 369 U. S. 186; State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544.) IV. On all of the facts and circumstances of the case, plaintiffs are entitled to preliminary relief pending the determination of the action.
    
      Louis J. Lefkowitz, Attorney-General (Orin G. Judd, Donald Zimmerman and George W. Zuckerman of counsel), for respondent.
    I. The supremacy clause of the United States Constitution bars granting of the relief requested in the complaint. (Hughes v. WMCA, 379 U. S. 694; Cooper v. Aaron, 358 U. S. 1; Matter of Orans, 15 N Y 2d 339.) II. The adoption by the District Court of plan A as a temporary apportionment measure was a proper exercise of judicial power. (Reynolds v. Sims, 377 U. S. 533; Maryland Committee v. Tawes, 377 U. S. 656; Butterworth v. Dempsey, 237 F. Supp. 302; League of Nebraska Municipalities v. Marsh, 232 F. Supp. 411; Butcher v. Bloom, 415 Pa. 438.) III. The decision in Matter of Orans is not authority for ignoring the requirements of the supremacy clause. IV. The granting of any relief to these respondents would be an improvident exercise of discretionary and equitable power.
   Chief Judge Desmond.

I would modify the order appealed from by reinstating the Special Term’s injunction against a 1965 election of legislators under plan A (and to this reinstatement a majority of this court agrees).

To bring the present difficulties to a prompt end, some of us would add to our mandate these additional directions: first, that a Constitutional Convention be held beginning March, 1966 with delegates to be elected at this Fall’s general election; and, second, that, until an election of legislators under a valid districting plan, the presently sitting legislators shall continue to sit, and to vote under an appropriate system of weighted voting.

As we have not hesitated to do in the past (Matter of Moore v. Walsh, 286 N. Y. 552) we must now perform our sworn duty by preventing the holding of an election which violates our State Constitution. The Moore decision (and Matter of Burke v. Terry, 203 N. Y. 293) is flat and compelling authority for the exercise of such power by us and the unconstitutionality of holding an election of legislators under plan A in 1965 is much clearer than was the alleged infringement acted on in Matter of Moore v. Walsh.

Neither Federal supremacy (U. S. Const., art. VI) nor the rules against interference with Federal courts by State courts (U. S. Const., Analysis and Interpretation, U. S. Print. Office, 1964, pp. 709-727) have any application here. I find no binding Federal court order forbidding us to deal with this problem of State government — indeed, the District Court (twice) and the United States Supreme Court itself has suggested or directed that as to State questions the State courts are still empowered to control State elections (see Reynolds v. Sims, 377 U. S. 533, 584). It is impossible to escape the fact that an election of legislators this Fall would violate in at least two respects the positive provisions of our State Constitution—as to elections every two years and as to the number of Assemblymen (N. Y. Const., art. III, § 2; Matter of Orans, 15 N Y 2d 339). Despite those illegalities of “ Plan A” under which a 1965 election is proposed to be held, we would of course be obliged to respect and follow the Federal courts’ orders for such an election this year if those courts had made final and binding orders therefor. To repeat, I have seen no such order. All the previous Federal decisions were based on the assumption that the 1964 or the 1965 Legislature would—neither did—pass a valid legislative districting statute. The May 24, 1965 decision of the Federal three-man District Court did no more than decline to change its previous orders. Obviously and under settled principles, the subsequent denial of a stay by the United States Supreme Court decided nothing. The appeal to that court still pends.

Basically, the question is: shall we obey the positive directions of our own State Constitution in the absence of a controlling decision' elsewhere commanding that an unconstitutional election be held! I answer: “Yes ”. The injunction prayed for must be granted.

The order should be modified, without costs, in accordance with this opinion.

Burke, J. (concurring).

The time and method of holding an election for State officials are State questions. The United States Supreme Court has directed that the greatest possible deference be paid to State action (Reynolds v. Sims, 377 U. S. 533; Scott v. Germano, 381 U. S. 407). But the 1964 and 1965 Legislatures have failed to provide legitimate legislative apportionment by Constitutional Convention or otherwise to carry on government.

Since both the present legislative apportionments are totally void (WMCA v. Lomenzo, 377 U. S. 633 [1964]; Matter of Orans, 15 N Y 2d 339) and since the United States Supreme Court had directed that an election be held in 1965 only if there is a valid legislative apportionment, the defendant must be enjoined from holding an election under plan A which would place power in the hands of an illegally constituted Legislature (Matter of Orans, supra). Therefore, an election this year can only be held legally by providing that the proper number of legislators be elected at large. Under these circumstances, I would limit the relief sought by the plaintiffs to a reversal of the order of the Appellate Division and the reinstatement of the order and judgment of the Supreme Court, Albany County.

Judges Fuld, Vast Voorhis and Bergan dissent in the following memorandum: In our view, the decision now being handed down serves only to further confound a most unfortunate and confused situation.

The members of the New York State Legislature who are now in office were elected under an apportionment which the Supreme Court of the United States has held to be invalid under the Fourteenth Amendment to the Constitution of the United States. (See WMCA v. Lomenzo, 377 U. S, 633.) The decision of the three-Judge Federal District Court directing an election in 1965 under “Plan A” (Reapportionment Compliance Act, L. 1964, ch. 976) implements the Supreme Court’s holding in the WMCA case (377 U. S. 633, supra). That there should be an election this year, 1965, in order to avoid the consequences of the prior unconstitutional malapportionment was evidently a primary object of the Federal courts in arriving at their conclusion (see, e.g., Hughes v. WMCA, 379 U. S. 694) and, some six weeks ago, the District Court concluded that there was insufficient time to fashion any new apportionment scheme without jeopardizing an election in 1965.

For the courts of this State now to grant injunctive relief, preventing the holding of an election in 1965, would be in direct conflict with the District Court’s decision, a decision which, in view of the Supreme Court’s recent denial of an application for a stay, has that tribunal’s implicit approval. (See Travia v. Lomenzo, 381 U. S. 431.) Such a conflict between Federal and State judicial power — quite apart from the supremacy clause of the Federal Constitution — should be avoided in the interest of the public order and the proper administration of justice. In this litigation, the Federal courts long ago assumed jurisdiction to implement the reapportionment decisions of the United States Supreme Court and, even if our State courts possessed a concurrent jurisdiction, the established rule is that under such circumstances the court first exercising jurisdiction does so to the exclusion of the other. We should not here depart from this rule.

The order appealed from should be affirmed.

Bergan, J. (dissenting).

The direction of the Federal District Court for the election of a Legislature in 1965 in accordance with the terms of the 1964 apportionment statute is in conflict with the New York Constitution, both by the constitutional language itself and by the decision of this court interpreting the New York Constitution and holding the statute invalid (Matter of Orans, 15 N Y 2d 339). Under New York law, then, no election should be held in 1965 or will be valid, if held.

But a direction to hold such an election has been made, nevertheless as an exercise of Federal judicial power, and the United States Supreme Court has not yet interfered with this order made by a District Court, although its attention has been called to the violation of our Constitution and the contrary decision of this court.

To grant a State court injunction against the enforcement of a Federal court order amounts to a confrontation of power which ought to be avoided if possible, in the interest of orderly government within the Federal Union, entirely aside from the question whether the supremacy clause has true relevance to the internal structure of a State government.

The result of the decision now being made is that a court of one sovereign authority has directed the New York Secretary of State to prepare an election in 1965 and the court of another sovereign authority has prohibited him from doing just that.

The legal differences over the exercise of the power of New York to govern itself can be resolved definitively by the Supreme Court of the United States in reviewing the decision of this court, and cannot be resolved adequately by a clash of conflicting orders between the New York Supreme Court and the United States District Court. Because of this, the order appealed from should be affirmed.

Opinion by Chief Judge Desmond in which Judges Dye and Scileppi concur; Judge Burke concurs for modification in a separate opinion; Judges Fuld, Van Voorhis and Bergan dissent and vote to affirm in a memorandum, Judge Bergan in a separate opinion.

Order modified, without costs, by reinstating so much of the order of Special Term as contained an injunction against the holding of an election on November 2, 1965 under plan A, and, as so modified, affirmed.  