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165th New York State Legislature

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165th New York State Legislature
164th 166th
The facade of the New York State Capitol building in bright daylight
JurisdictionNew York, United States
TermJanuary 1, 1945 – December 31, 1946
PresidentLt. Gov. Joe R. Hanley (R)
Temporary PresidentBenjamin F. Feinberg (R)
Party controlRepublican
1945: (35–21)
1946: (36–19)
SpeakerOswald D. Heck (R)
Party controlRepublican
1945: (94–55–1)
1946: (94–54–1)
1stJanuary 3 – March 24, 1945
2ndJanuary 2 – March 26, 1946

The 165th New York State Legislature, consisting of the New York State Senate and the New York State Assembly, met from January 3, 1945, to March 26, 1946, during the third and fourth years of Thomas E. Dewey's governorship, in Albany.

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  • 2018 Hardt Cup Finals
  • The University of Mississippi's 165th Commencement
  • The University of Mississippi's 164th Commencement


Good afternoon, everyone. Good afternoon. My name is Bryan Czako and I'm at a 2L here at Duke Law, and I, along with my fellow Hardt Cup coordinators, Jules Carter, Meredith Compton, and Kyle Nodes want to welcome you to the Championship Round of the 2018 Hardt Cup. Two quick reminders. First, please keep your phone silenced at all times. And second, once the arguments have begun, please remain in your seats throughout the entirety of the competition. The Hardt Cup is our first year moot court tournament, and for many competitors, this is their first experience with oral advocacy. Putting it together required a tremendous amount of effort and could not have been done without the help of faculty, practitioners, the clerkship office, and the entire moot core board. We wanted to thank you all so much for your time, patience, and effort throughout this process. We are honored to welcome our judges today, Justice Eva Guzman, from the Supreme Court of Texas, Judge Raymond Kethledge, from the United States Court of Appeals for the Sixth Circuit, and Judge Joseph Bianco, from the United States District Court for the Eastern District of New York. Arguing today are Melissa Dix, for the petitioner Rowan County and Jack Smith for the respondents. Nancy Lund, Lisa Montag-Siegel, and Robert Volker. Melissa is from Ashland, Ohio, and graduated from Boston College in 2017 with a major in political science. Here at Duke, she is a member of the PILF board. This summer, Melissa all work with the United States Air Force Jag Corps, at the Hickam Air Force Base in Hawaii. Jack is from Worcester, Massachusetts, and graduated from Harvard University in 2015, majoring in sociology. He spent two years before law school as a paralegal with the United States Attorney's Office in Boston. At Duke, Jack is on an active investigations team with the Innocence Project and on the board of the American Constitution Society. He'll be working this summer at the United States Department of Justice in D.C. in the Criminal Fraud section. The case for this year's Hardt Cup centers around the constitutionality of legislator led prayer conducted before official meetings. The Supreme Court has only twice addressed the constitutionality of legislative prayer. It first upheld the practice in Marsh v. Chambers, explaining that the long tradition of legislative prayer, stretching back to the first Congress, demonstrated its validity. In the subsequent case of Town of Greece v. Galloway, the court further clarified that legislative prayers that are sectarian in nature are not, per se unconstitutional, and upheld the Town of Greece's practice of inviting local clergymen to deliver invocations at town board meetings. This year's case focuses on the prayers practice of the Rowan County Board of Commissioners. Before each board meeting one of its five elected commissioners led a prayer to begin the legislative session. Almost 97% of the prayers were Christian in nature, and no one outside of the board members were permitted to deliver the prayer. The respondents in this case, none of whom identify as Christian, filed suit challenging this practice. Thus, the question before the court today is whether this conduct rises to the level of a constitutional violation under the Establishment Clause. With that we hope you enjoy the competition and good luck to the competitors. Thank you. [APPLAUSE] All rise. Oyez. Oyez. Oyez. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near to give their attention, for the Court is now sitting. God save the United States and this Honorable Court. You may be seated. Welcome to the Hardt Cup. If you are the petitioner, if you could just let us know how much time you're going to reserve. All right, very well. Proceed. Mr. Chief Justice, and may it please the Court my name is Melissa Dix, counsel for petitioner Rowan County North Carolina. Your Honors, this is a case about preserving a tradition more entrenched in our nation's history than the Constitution itself. Accordingly, petitioner respectfully requests that this court reverse the Lower Court's decision and hold that Rowan County's prayer practice is not unconstitutional for the following three main reasons. First, allowing the county commissioners to deliver the prayers does not impermissibly discriminate against other community members or other faiths. Second, the setting of a local government meeting does not inher coercion. And third, the content of the prayers does not proselytize or disparage other faiths under any conditions. First, though their prayers were delivered solely by the five county commissioners as opposed to clergymen or laypeople, this factor has to be considered in the totality of the circumstances. This court held in the case of Town of Greece v. Galloway that though that prayer practice was upheld as constitutional because it was a more flexible approach, that did not necessarily hold that a more structured approach, as we have here, is unconstitutional. Town of Greece involved some prayers by non-Christians. Yes, Your Honor. [INAUDIBLE] significant here that the prayers are prepared, controlled, then delivered by the same group. It is important to consider, Your Honor, but it is not dispositive of whether or not this specific prayer practice is constitutional or not. We have to consider how the prayers were actually delivered in the setting. So here, the commissioners were the ones delivering the prayers, but there is nothing to suggest that they would not have been able to give a prayer that was non-Christian, Ecumenical, of whatever faith that they so choose to do so. Now-- But I mean, looking at all the circumstances, in fact, every prayer was an expressly Christian prayer, which is different from Greece, right? Yes, Your Honor. Here 97% of the prayers were admittedly Christian, but this court held in Town of Greece that prayers do not have to be nonsectarian or ecumenical to be constitutional, and we have to consider the prayer scheme as a whole. When we look at the setting of how these prayers were delivered, we see that the prayers were delivered at the beginning of the meetings during what is a largely ceremonial portion of the meetings. They delivered the prayer, then they did the Pledge of Allegiance, and then they moved on to administrative tasks such as approving the previous meeting's minutes, scheduling-- Didn't Justice Kennedy, in Town of Greece, make it a point that the identity of the prayer-giver made a difference? In other words, it was a point where the audience, people present, were invited to the rise and pray. He made it a point in that decision to say, that wasn't the lawmakers, that was, the guest ministers. So, aren't we crossing a new line here in terms of now, with the identity of the prayer givers, the lawmaker, allowing that is this really an extension of his analysis? No Your Honor. While Justice Kennedy did recognize that there we had outside members of the community giving the prayers, that did not necessarily mean that there is no situation in which the legislators could deliver their prayers still within constitutional bounds, which is what we have here. Because the legislators gave their prayers at the beginning of the meeting, and they have this buffer period then, where they move on to administrative tasks, and they schedule future events and, then they open up the meeting to a public comment period where individuals are free to stand and either, there's nothing to suggest that they couldn't deliver a prayer of another faith at that point, or to express their dissent, and then they move on to the more substantive portion of the meeting where they actually adjudicate the claims and issues that the community members-- It doesn't make a difference where the person, even if there's a buffer as you say, this person-- suppose you have a zoning issue and the church is involved in the zoning issue, and then right after-- right before that's going to be decided, the lawmakers are saying, please stand. And let us pray. Don't you think, if you're sitting there, a member of the community, you may think, I better participate in this prayer or this zoning issue I'm having with the church is not going to go my way. Yes, Your Honor, but here we see that there's no evidence in the record that any community members were ever given unfair consideration of the issues that they brought before the legislators. Now we also see that the use of language, such as let us pray, this court recognizes, not necessarily meant to coerce community members to be involved in the prayer practice, but rather it's a way that these types of prayers are commonly began, and so it's meant to be inclusive. Who are the prayers aimed at? The legislators or the audience? , here while we won't necessarily inquire into the subjective intent of the legislators, they were delivering the prayers while facing the constituents of their community, but that does not necessarily mean that they were projecting them at the community members to coerce them into participation or to coerce them into converting their beliefs. What type of evidence would you have to have in the record to suggest that delivering prayers right before the decision-making process on issues impacting those citizens didn't have a chilling effect. They were afraid not to stand or are afraid to leave the room? Your Honor-- What would that record look like? Your honor, we would need at least something more than we have here, and here all we have is offense. We have no evidence that these individuals were not given fair consideration, and we also have no evidence that any of these community members ever requested that another faith be represented in the prayer that was being delivered. They never asked if they could stand up and give the prayer. Well, you know, I mean there's really the content of the prayer issue and there's a separate coercion issue, and in Town of Greece, the plurality opinion said that the analysis would be different if members of the town board directed the audience to participate. Why doesn't that speak directly to this case? They're saying let us pray. Yes, Your Honor, it is relevant to the inquiry, but we have to consider how the prayer practice plays out as a whole. And when we consider either a paid chaplain coming-- I mean the course of the analysis would be different. Yes, Your Honor, and so we have to consider how it's different with these circumstances here. But if we have a chaplain or a minister coming in and being paid or being sought out by the legislators, as in Town of Greece where they sought out clergymen from the community, there's no real difference there in paying an individual to come in and espouse a belief or simply giving the prayer yourself. The individuals are essentially deputized to come in and give those prayer is as agents of the state. Here we have the legislators giving the prayers, but they're acting in their individual capacity and the board as a board as a whole does not review and edit those prayers and make that determination together. Doesn't that lead to a closed universe of prayers? We really don't have anyone coming in with any different ideas other than the members that are rotating these prayers. Your Honor, it does create a closed universe of who is delivering the prayers. However, this court recognized that the Establishment Clause does not create an affirmative duty to accommodate religious diversity. Rather, the Establishment Clause creates a negative duty to not impermissibly discriminate against other faiths and here, by simply making a rule that whoever the five county commissioners are will deliver the prayers, does not impermissibly discriminate against all other religions. It seems to suggest a very intimate government involvement with that universe of prayers. Your Honor, I respectfully disagree. Constitutionally, so. These individuals are offering these prayers in their individual capacity the same way that the ministers and chaplains and clergymen came in and offered those prayers in their individual capacity. This court has never held and this nation has never promised a government entirely separate from religion. But this court has said that you can't preach conversion. You can't proselytize. And would you concede that at least some, at least some of these prayers cross that line? Would you concede that? Yes, Your Honor. Petitioners would concede that some of these prayers may cross the line of proselytization, however this court held in Town of Greece, that a few poor prayers don't necessarily spoil the practice as a whole, and we have to consider the prayers in the aggregate and whether or not over this scheme they denigrate other faiths and proselytize Christianity, and we would contend that these prayers on the whole do not. Rather, they purport to promote a community of tolerance, of diverse views, and diverse opinions so that when they move into the more substantive areas later, and the public comment-- How does a quote like, there's only one way to salvation and that is Jesus Christ, how is that promoting inclusion? Isn't that suggesting the superiority of that faith over all others? Isn't that implicitly denigrating other religions? , again we do contend-- we do recognize that some of the individual prayers may be proselytizing in their individual instances. But when we look at the overall scheme of the prayers, they do not all proselytize Christianity, and do not all denigrate other faiths. What are the limits then on sectarian prayers, particularly when led by the legislature? Yes, Your Honor. The prayers have to be considered as a whole, and if those few individual instances do proselytize, then that does maybe raise a red flag. But that doesn't strike down the practice as a whole immediately. What if they decided to have the Apostles' Creed or pray the rosary at the beginning of the meeting? Would that be OK, or not? Perhaps, Your Honor, but that's where we would look into that practice. Here we don't have the commissioner as asking individuals in the community to do anything more than, please stand and please pray with us. Which they do not demand participation, they do not keep track of who is and is not participating-- How about the person who was booed and jeered when they oppose this practice? Yes, Your Honor, that individual was booed and jeered during the public commentary period, and they were booing jeered by fellow citizens, not by the government. And while the Establishment Clause does seek to protect religious minorities and individuals with other views from that majority control, it's the clause seeks to protect them against that by the government. And the government cannot be held accountable every time that the citizens-- Certainly the government had some role in creating the situation that led to that treatment of those people? , anything that was brought up in the public comment period could have encouraged individuals in the community to boo or jeer someone. The fact that it happened to be the religious prayers here, does not mean that the government itself is necessarily responsible and the legislators-- But what about the fact that those prayers were clearly identified with government officials? They wrote them. They prepared them. They delivered them. They decided which one would deliver them on any particular day. Yes, , but they prepared them and wrote them in their individual capacity, and they prepared them according to their own personal beliefs. The government never contended that these beliefs being espoused were the beliefs and views of the government. They were the views of Commissioner Ford or whatever commissioner was delivering the prayer that day. And that's why they did not review the prayers as a board together to ensure that they were not impermissibly inquiring into the content of their prayers as a practice itself. Now, when we go back to the setting, we've seen situations in which a setting can inherently be coercive, but a local legislative meeting is not one of those. This court recognized in the case of Lee v. Weisman that a high school graduation ceremony, where prayer is delivered, could be inherently coercive because there the situation is closely monitored and supervised, and so the individual students could not avoid the prayer practice by simply leaving or abstaining from the prayers. Isn't this case arguably worse for you than Lee because unlike Lee, the people affected here are in a sense supplicants. They want something from the very people who are asking them to pray. No, Your Honor, though in Lee, that there is more control over the individuals. And so that's why the practice there was coercive based on-- Nobody was-- --setting. But-- I'm sorry go ahead. OK. But here, though these individuals do want to ask the legislators for something, that doesn't necessarily make the practice coercive in itself. Isn't that a factor that makes it potentially more coercive in the totality of the circumstances? Certainly, Your Honor, but here the totality of the circumstances still does not rise to those unconstitutional levels, because they have that buffer period, the language as a whole is meant to promote unity and tolerance, and the individual commissioners are giving the prayers in their individual capacity. And s, this practice-- At what point do they begin to act in their individual capacity? They're there to make decisions in their elected capacity. So at what point do they transition back and forth from an individual to elected? Your Honor, I see I've run out of time, may I briefly answer and conclude? Sure. When-- the commissioners stand up at what is a very ceremonial, administrative part of the meeting, at the beginning. And the individual commissioner stands and says, please pray with me, as acting in their individual capacity. When they move on to the substantive issues where they're adjudicating issues as a board, that's when they move into their collective action. Your Honors, I respectfully request that this court reverse. OK you'll have your rebuttal. Hear from respondent. Mr. Chief Justice, and may it please the Court, my name is Jack Smith, counsel for the respondents Nancy Lund, Lisa Montag-Siegel, and Robert Volker. Your Honors, this case is about honoring the promise of the First Amendment and ensuring that five local legislators in Rowan County cannot use their office to establish their religion above all others. Accordingly, Your Honors, the respondents respectfully request that this court affirm the judgment of the Fourth Circuit for two main reasons. First, prayers given by the legislators themselves are fundamentally different from the minister-led prayers that this court has previously upheld. And second, Your Honors, holistic inquiry into the prayer opportunity here, including its content, its setting, and its audience, reveals that Rowan County impermissibly identified its government with but one religion. Let me ask you on your first point, what significance did Marsh or Town of Greece attach to the identity of the person giving the prayer? Well Your Honor, in Marsh, the identity was with regards to a single minister who had been appointed-- But what significance did the court attach to that aspect of the inquiry? Your Honor, the court was not presented with a particular reason to consider the legislator identity, they only considered ministers in the past, and therefore they've only then reflected on that capacity. So they really aren't-- they really don't help you on that point, do they? Either of those cases? Respectfully, Your Honor, I do disagree, because those past cases indicate that it is the intent of the practice, as well as its effects, and Your Honor, Chief Justice Kethledge pointed out it's both a content inquiry and a setting inquiry with which this court must engage. Its a totality of the circumstances inquiry. And thus, a key difference, such as the identity of the prayer giver must give us pause to re-evaluate circumstances which may have previously been upheld. Why should that give us pause if our jurisprudence say we look to what the founding fathers-- look at historical practices and understanding that you would concede that really is the test that we established? Yes Your Honor In both cases, Marsh and Town of Greece, it's clear at the time of the enactment of the First Amendment, first Congress was appointing chaplains at the same time in the below they note that the South Carolina legislature, in 1775, had the legislatures saying the prayers. Congressional record is replete with individual members of Congress praying. So why doesn't that really end? If we're looking at historical practices, this has been going on for over 200 years. Yes, Your Honor and in the briefs the petitioner did point out a handful of select examples where legislators were allowed to participate. Now Your Honor referred to the very first example, the chief one from Marsh, which is the first Congress appointing a chaplain. Now the first Congress made no mention of legislators themselves praying, but did appoint two ministers of different faiths to rotate between the houses such that there would not actually be one exclusive voice of different-- Well, I mean that certainly wasn't the case in Marsh. I mean. you know we've talked about 97% sectarian prayer here, rotating there. In Marsh, 100% Christian prayer, and apart from a couple of years at the end, basically the same kind of prayer that we have here. Yes, Your Honor, and there are a couple of key distinctions-- It was fine. There are a couple of key distinctions, Your Honor that map up nicely with Justice Bianco's question here, which has to do with what questions the court has considered before. And in Marsh, the court was not presented with this kind of sectarian proselytizing prayer. They were considering only a minister who had been invited to give, in that case, there were nonsectarian prayers at the time. Marsh had-- there was one quote I saw, the power of the cross? I mean there was some pretty sectarian prayers in Marsh, weren't there? Your Honor, I believe you may be referring to the Town of Greece record, but at any rate, the court has previously said that a single sectarian prayer will not spoil the practice. But nonetheless, Your Honors, the minister in Marsh did not have legislative power, and that must be the key distinction. But would you concede that if these prayers were given by a minister, they would be OK? Would you concede that? Under our prior precedent then, under Town of Greece and Marsh, if the minister, some minister from the outside have chosen these prayers himself or herself, and delivered them, we would be fine with that, right? Not quite, Your Honor. Respectfully, there are still distinctions in the totality of the circumstances inquiry. Town of Greece stands for the principle that sectarian prayers are not, per se unconstitutional. A couple of prayers will not spoil a long history, in that case 10 1/2 years of practice. It does not mean that sectarian prayers will always be constitutional and specifically if given from a single voice, and that that voice is one of adjudicatory nature. Here. Your Honors-- So what do you propose? That there be some sort of supervisory role in examining the prayers and that you become the censors? No Your Honor. As this court has previously made clear, it would be perfectly improper for this court to wade into religious censorship once public prayer has been invited into this space. However, what the government cannot do is identify itself exclusively with one religion, which is what has happened in Rowan County. If everybody in the town, within the limits of the town, identified with one religion, then you have to go outside of the town-- So Your Honor-- What does the government have to do? Just go 50 miles out, and say, would you come pray that we can be inclusive? No Your Honor, Town of Greece has answered this question for us pretty clearly, that town need not look outside its borders and get involved in the messy business of selecting which religions to invite. But it must open the practice to allow an inclusive prayer practice different from the one that happened in-- What evidence is in the record that this practice was closed? Your Honor-- --have any evidence of that record that they affirmatively would not allow someone who asks to pray? Your Honor, the petitioner concedes that it was the policy of this County to only allow the commissioners to pray, whether or not that practice was written or whether there were specific objections that it was the policy to only allow them. I mean, that seems like a fortuity. I mean, they had guest ministers in Town of Greece, and here they just, you know, they do it themselves. Why does that matter constitutionally? Well Your Honor, because it goes to the heart of the Establishment Clause with regards to creating political division along religious lines. As the petitioner must readily concede, the only way for a person of a minority faith to get their perspective heard would be to elect someone. And I saw that in the decision we're reviewing, and it seems to me that this sort of political speculation is getting very far afield from the historical analysis that our precedents say we apply specifically to the very type of government activity at issue here. So why-- I mean-- why would we try to be political scientists in deciding this case? Your Honor, it doesn't need to go so far afield as political science, but even in honoring the history and the precedent of the past cases, what this court has made clear is that a practice cannot identify the government with but one religion. And whether that means that they offer nonsectarian prayers or they open the practice to allow others to-- Didn't Justice Kennedy say in Town of Greece that the purpose-- take a step back. The purpose of legislative prayer is not to convert anybody but to allow the lawmakers to identify who they are through their prayers. This is who we are, right? Isn't that the whole purpose of legislative prayer. Your Honor, I submit that that is supposed to be the purpose of legislative prayer. If that is supposed to be the purpose, that's a permissible purpose for them to show who they are. Who Better to show who they are than themselves? If the purpose is to allow them to express who they are, which includes a sectarian prayer. This is who we are. Why make someone else come in and tell everybody who they are? I don't follow the logic of that. Yes, Your Honor. Honoring that. Yes, Your Honor. Historically, that has been the purpose of legislative prayer. However, there are several key distinctions from the practice that occurred in Rowan County that mean that this practice does not adhere to that constitutional purpose. First, Your Honor, remarked on the setting and the audience. If the audience is supposed to be the legislators themselves, and it has a solemn respectful and guiding purpose, that's permissible. That's historically consistent with this court and with the First Congress even. This was solemn, respectful, and guiding wasn't it? Your Honor-- [INAUDIBLE] here. Your Honor, I respectfully disagree. I believe that thanking God for the virgin birth, for the cross and cavalry, and for offering God thanks for the guidance that He has given we the taxpayers of Rowan County, representing that we represent you Lord, and we represent the taxpayers. Placing these on an equal footing in the prayers does far more than is still respectful. It seems to-- I mean, it seems to be precisely the parsing that our precedents say we're not going to-- flatly say we're not going to get into. Your Honor, it's true that a single prayer will need not be parsed, if the practice is otherwise-- These prayers show up over and over in these cases. I mean the Continental Congress prayer. I know there's a prayer from Marsh in here. I know it. That, I mean, it's the exclusivity of Christ as the savior, and in Jesus' name we pray. We see those two things over and over and over again in these cases. I mean, if you're trying to win the case based on the content of the prayer, is hard to see how they're different. Your Honor, it is not purely the content that is the only inquiry here. It's the interaction and the totality of the circumstances. I do submit that the content here is distinguishable from the past cases, both in the severity of the proselytizing. Let me, let me read you a quote from Town of Greece. I pray that we would acknowledge that you are the supreme ruler of all. That's from Town of Greece. Yes, Your Honor. Isn't that very similar to the type of prayer we have here in the Town of-- the power of the cross one, reference to the power of the cross is in Marsh. It is a parsing then. We're going to look at each word. They seem very similar. Yes, Your Honor and the court there did acknowledge that those were proselytizing prayers. And in fact-- But there has to be a pattern though. You're not going to pick one prayer out of years and years of prayer, and say, oh you crossed the line there. We're going to strike this down completely because one person crossed the line on one occasion. So it's correct, Your Honor, that one person, on one occasion would not suffice. However, here in this record, we have than 10% of all the prayers that were offered to this entire opportunity, and each prayer was offered by a person who would have a repeated opportunity, which was not the case in Town of Greece. So don't-- when someone comes in, whether they're paid or otherwise, don't they stand in the footing of the legislators when the prayer is addressed to the same body, and when the historical purpose is the same? Yes, Your Honor-- What does that do to your argument? I actually believe that there's room for very meaningful distinction here, Your Honor. The petitioner made remarks with regards to a buffer zone, something that the Town of Greece also commented on. However, it is easier to distinguish from the public's perspective, the ceremonial and reflective practice when it is offered by someone else who is not doing the adjudicating. In this case, there is no meaningful buffer or distinguishable factor from the private prayers, allegedly private prayers, and the public business of this body. It flows into one, and there is no longer any distinction between privately held beliefs and public action. But if a lawmaker invited his pastor from his church to come in and deliver the exact same prayer, good or not? That would still be a very meaningful distinction, Your Honor, in that that person isn't invited-- I'm going to have my pastor now lead us in prayer? That would be a meaningful distinction. There's a meaningful distinction. That is more similar to what occurred in Town of Greece. That is not the legislator themself. That invited person is not the one deciding on my permits, on my zoning. They are not the person coming before the public and adjudicating matters of significant economic importance to a person's life. In a manner not unlike this one. Well we certainly had-- I mean, that argument sounds like the dissent in Town of Greece. That these people have immediate authority over members of the audience who really want to get some kind of relief or action from those people. It makes all the difference that it's the board member himself or herself that's saying in here, as opposed to them, for example, having their pastor speak the prayer. Your Honor. That makes all the difference in terms of how the audience perceives the endorsements, so to speak? Your Honor, I wouldn't say all the difference. It makes a world of difference. As Your Honor, Chief Justice Kethledge brought up on the petitioner's argument, this case is more similar to Lee v. Weisman than the petition-- On Lee v. Weisman, you're talking about, frankly kids. And we're talking about grownups here. And I think the case law does expect a certain fortitude from adults. I think you see that in Justice Kennedy's plurality opinion. So why isn't that just the distinction right there? It's absolutely true, Your Honor, that there is distinguishing factors with regards to the age and the impressionability. That is not the only factor in Lee v. Weisman, however with regards to the authoritative nature of the people who are directing the practice in that school case, that is much more similar to the authority figures directing the prayer practice here. And as the court in Town of Greece indicated, it is this combination of factors with the setting and the audience, which makes the difference. Didn't the records show that most-- not everybody stood? Only most people stood? So if it's as coercive as you're suggesting, there were some people who felt no obligation to stand notwithstanding this intimate decision making setting. Yes, Your Honor, and I believe-- potentially I misspoke. I'm not suggesting there was any actual coercion here, and that's not in the record. However what the court in Town of Greece directed, the first-- I'm not suggesting it's an actual-- but as a reasonable observer, knowing the tradition of legislative prayer, knowing that this has been going on for 200 years, people some people didn't feel compelled, even in that setting, to stand. That's true, Your Honor. But what is important about the setting, is that it changes the analysis of some of these other factors. The intimacy changes the role of government from what it might be in a state legislature like in Marsh, where there's no interaction-- It was the exact same intimacy in Town of Greece. Right, and the court there suggested that the audience and the setting would be important and crucial. That's why the court in that case went into further inquiry, into the content of the prayers and specific-- Why give-- you're running out of time-- why give the identity of the speaker dispositive weight, when it's, in fact, intensive inquiry? That seems to be what you're arguing. So, Your Honor, to be clear, I'm arguing for totality of the circumstances. It is not one factor alone, but that the identity of the prayer giver changes the analysis of those other factors, as Your Honor is brought up in the petitioner's argument. And it makes them more constitutionally suspect because of that authoritative adjudicative nature. But beyond that Your Honors, it's about identification of the government with the prayer practice, with religion, which is the heart of the Establishment Clause itself. And as, Your Honor-- You can finish your point. Thank you, Your Honor. As the commissioners in this case themselves pointed out, they viewed this practice as one not just of private importance, but of public significance. That their duty was to be God's instrument. And Your Honors-- We went over a moment, so I'm going to indulge one last question. Why, in terms of associating or, you know government endorsement, why is this any worse than having the chaplain for 16 years, or frankly know the Senate chaplain forever? I mean that's the institution itself reaching out and bringing in a Presbyterian minister. Why is that not a problem and this is a problem? Your Honor, simply because it is no part of the business of government to craft and compose prayers themselves as this court announced in Engel v. Vitale, and that is not a problem when we have a third party doing all of the composition and giving up the prayers. But when the legislators themselves are giving it, when they have the-- Did we say this in any case, other than the-- I mean, the Fourth Circuit case says stuff like this but, have we ever said this? That it, yes Your Honor. The Supreme Court? The Supreme Court in Engel v. Vitale and Lee v. Weisman, and again in Town of Greece. OK. OK. All right. Well I'll relent on that point. All right. Thank you very much for your argument. Thank you, Your Honors. And we'll hear rebuttal. May it please the court, Your Honors, counsel for respondent made the point and conceded that here there was no coercion, and I agree. Here, all we have is offense. And as Justice Kethledge pointed out, here we have adults. And this court has recognized that adults, firm in their convictions, can be expected to and perhaps do appreciate a prayer that unites a community in tolerance. If you're the minority in the room, sometimes you feel that you can't speak up. And when everyone in leadership is praying to Jesus invoking the cross, isn't that the subtle form of coercion? If there-- is there anything the record to suggest that people couldn't speak up? No, Your Honor. Other than other community members booing and jeering, there's nothing to suggest that the government itself ever stopped individuals from espousing their own beliefs or dissenting from the beliefs that were portrayed during the prayers in the public comment period. Now, we've also recognized that there's no evidence in the record that this, while the practice is a closed universe of individuals delivering the prayers, it's not a closed universe of views. The commissioners are not barred from espousing other beliefs if they were requested to do so by community members, and no one has ever asked them as the evidence as the record reflects. And in the public comment period, again there's nothing to suggest that the government has stopped individuals from saying what they believe. Have they stop them from praying or invited them to pray? Your Honor, the practice here does not invite individuals outside of the commissioners to pray at the beginning, but there is nothing to suggest that if a individual wanted to deliver a prayer in that public comment period, that they couldn't. No one has simply tried. Now, Justice Bianco you also made the point that why make someone else come in and deliver the prayers if one of the points of legislative prayer is to show what the legislators are about and the beliefs that they hold, and I agree. Why should we have chaplains come in, be paid by the state to deliver prayers-- I see I've run out of time. May I briefly-- You can finish your thought. To pay those individuals to come in and espouse the exact same beliefs that they can-- that the commissioners can just as easily do at the beginning on their own. Thank you. Very good. Thank you both for your arguments. We'll stand in recess. All rise. [APPLAUSE] [SIDE CONVERSATIONS] All rise. You may be seated. In my court, the clerk actually says that. That's why I was sort of like-- [LAUGHTER] Why don't we just sit down. All right. Just to get this part over with it. That was a great argument. I mean, extraordinary that you both are 1Ls, and just really very, very bright futures for both of you. The winner of the competition is Ms Dix. [APPLAUSE] Both of you have been a real credit to your law school here today. All three of us are very impressed. We're going to offer some comments, and I guess I have to go first, I'm told. So, I would say that both of you have a good conversational style at the podium. Appellate argument isn't oratory and it's not a performance. It is a conversation, and and you have conversational styles, and you should stay with those. And, you're both good at listening to the panel. It's very important to really try to get information from the judges' questions to try to get a sense of what is bothering them about your position, what is concerning them. You know, the goal is not to get out of the argument without embarrassing oneself. The goal is to persuade the judges, and so you really have to embrace those concerns and face them, and answer them, rather than try to skirt them. Each of you obviously put a great deal of time into preparing for this. And I think you had anticipated the concerns very well. So you did a great job of that. I guess one other thing I would say is that along the same lines, is to embrace the hardest questions. And I think you each did that. I once argued in front of Ed Carnes in the 11th Circuit. I always said Carnes was the smartest judge I ever argued in front of. I never argued in front of a Supreme Court. But Ed's a really smart guy, a little cranky, frankly, on the bench-- [LAUGHTER] You know, just among us. But, I noticed-- so I was the fourth case up that day, and if you get to argue a case, and I'm sure each of you will, it's good to be lower on the list, because you can size up the panel, and get a sense of the dynamic and you know, whether somebody is going to be cranky if you don't answer the question. And I saw that Judge Carnes, in each case, he would ask one of the lawyers a very specific question, which was, in essence, between the lines, it was, I'm inclined to rule against you for this reason. Explain to me why I'm wrong. And a couple of the lawyers actually evaded that question, which is just like trying to pretend that or-- you know a hand grenade with the pin pulled just really isn't there. [LAUGHTER] And it didn't improve. He wasn't very happy about the evasion itself. So you could see where that plane was going, and he asked me not quite that question, but something that was hard. He asked me about a deposition transcript that nobody cited in the briefs, which tells you about the importance of knowing the record when you come up. But anyway, I felt like I kind of asked you, I think, one of those questions, and you didn't evade anything. I'll tell you that. I mean you come right back with a pretty sometimes formidable answer. Anyway so embrace the hard questions. Really try to understand what's troubling the court or what the court's concerns are, and I certainly wish you both the best of luck in your careers, and now we'll hear from whoever wants to go next. Thank you. Well first of all, thank you all for inviting me to participate today. I've been hearing oral arguments since 2001, so I've had literally hundreds and hundreds of appellate advocates, and every time I come to a moot court, I am so impressed by the quality of the advocacy. So I share the judge's comments on the quality of the advocacy. And I'll share this with you, Justice Sandra Day O'Connor advised lawyers that they should approach oral argument as an opportunity to allay the judge's concerns about the issue, assuming that the judge really wants to rule for you. And what they're asking stems from their concern about a particular area. And I think that you all listened. What's important during oral argument, to listen to the questions, because 90% of the time they do stem from a place of concern about the extension of the rule or about the test that's to be applied, and that sort of thing. I think that you should also pause. Jack, you did a wonderful argument. You were very engaging. But both of you, when you get a question, stop and think about what was asked so that you can have a dialogue, a conversation with the judge. So you want to answer quickly, but you also want to think about your answer. And I think that lawyers often don't do that. They just go on and on and on and on, and you really want the lawyer to have 10 seconds to think about what's about to come out of their mouth. And I think we asked them questions about the record, the prayers here were everything. And so I think that if you have a case where it all hinges on content, you really need to be familiar with content. And so the prayers, I mean, looking at prayers in Town of Greece and the prayers here and being able to really articulate for the justices why they're different or why they were the same and let's see-- I like that you engaged well with questions that were posed, but neither of you seem stumped or particularly puzzled. You had a response, and they were good responses. They were based on existing precedence and I thought you did a good job. First, I also want to thank Duke Law School for inviting me. I'm thrilled to be here. It's a real pleasure. I'm a big fan of the school and to be on a panel with Justice Guzman and Judge Kethledge is really an honor. I hear the oral argument in every case as a district judge. I do a lot of moot court competitions, and this was an amazing event. The fact that you're 1Ls just blows me away. I couldn't even put two sentences together as a 1L. [LAUGHTER] And you are functioning at such a high level of appellate advocacy. Doing so many different things that are really advanced, not just for law students, but for lawyers. Those were the hardest questions I could think of. I mean, I knew right away as both of you got up I didn't have to worry whether you can handle this. I just started firing some fast balls. [LAUGHTER] And so did my colleagues, and you guys do like, as Justice Guzman said, there were no awkward pauses. Immediately, you know, you had an answer. It was responsive. It wasn't just a talking point. And that's very advanced. I also was trying to see what you would concede and not concede. It's a really hard thing to figure out. I was kind of setting a trap, and both of you conceded what you needed to concede. A lot of times, lawyers don't want to concede anything. But in this case, both of you had to concede a little bit, and you both did that. Which I was really surprised that your judgment had told you, OK I can see that and still win today. Don't worry about the next case. I want to win today. Also you pivoted from the question back to what, you know, it's sometimes hard when you get a question. Where do I go next. The pivoting, for both to the facts to a case, it's really, really amazing. And the other advanced thing you did was referencing. Mr. Smith referenced things that happened during the questioning of Ms. Dix, and on rebuttal, you referenced things that were happening. A lot of lawyers or law students don't do that. They have what are their talking points are, and they're not listening to the other side and what the judges are actually asking because that could help you. You could throw something back at the judge that they said two minutes ago. So all of those things were going on at the same time. And the law school should be very proud of both of you. Thanks. Well thank you, and I guess I should say thank you to the law school, too for-- [LAUGHTER] No, it's been great to participate in this. And what a beautiful campus you have here. My goodness. It's really been great to be here. So thank you and good luck. [APPLAUSE] To practice what it's like to be a good thinker, but also a good advoc--



In 1943, the Legislature re-apportioned the Senate and Assembly districts. The total number of state senators was increased to 56. Chautauqua, Dutchess, Monroe, Oneida, Rensselaer, St. Lawrence, Schenectady and Steuben counties lost one Assembly seat each; and New York County lost seven seats. Kings and Westchester counties gained one seat each; Nassau County gained two; Bronx County gained five; and Queens County gained six seats.

Thus, under the provisions of the New York Constitution of 1938, re-apportioned in 1943, 56 Senators and 150 assemblymen were elected in single-seat districts for two-year terms. The senatorial districts consisted either of one or more entire counties; or a contiguous area within a single county. The counties which were divided into more than one senatorial district were Kings (nine districts), New York (six), Bronx (five), Queens (four), Erie (three), Westchester (three), Monroe (two) and Nassau (two). The Assembly districts consisted either of a single entire county (except Hamilton Co.), or of contiguous area within one county.

At this time there were two major political parties: the Republican Party and the Democratic Party. The American Labor Party, the newly organized Liberal Party and the Socialist Labor Party (running under the name of "Industrial Government Party") also nominated tickets.


The New York state election, 1944, was held on November 7. The two statewide elective offices up for election were carried by Democrats with American Labor and Liberal endorsement. The approximate party strength at this election, as expressed by the average vote for U.S. Senator and Judge of the Court of Appeals, was: Republicans 2,913,000; Democrats 2,432,000; American Labor 476,000; Liberals 320,000; and Industrial Government 16,000.

Two of the four women members of the previous legislature—State Senator Rhoda Fox Graves (Rep.), of Gouverneur; and Assemblywoman Mary A. Gillen (Dem.), of Brooklyn—were re-elected. Gladys E. Banks (Rep.), of the Bronx; and Genesta M. Strong (Rep.), of Plandome Heights, were also elected to the Assembly.

The New York state election, 1945, was held on November 6. No statewide elective offices were up for election. Three vacancies in the State Senate and five vacancies in the Assembly were filled.[1]


The Legislature met for the first regular session (the 168th) at the State Capitol in Albany on January 3, 1945; and adjourned on March 24.

Oswald D. Heck (Rep.) was re-elected Speaker.

Benjamin F. Feinberg (Rep.) was re-elected Temporary President of the State Senate.

The Legislature met for the second regular session (the 169th) at the State Capitol in Albany on January 2, 1946; and adjourned on March 26.

State Senate



The asterisk (*) denotes members of the previous Legislature who continued in office as members of this Legislature. John D. Bennett, William S. Hults Jr, Roy H. Rudd, Fred G. Moritt, Louis L. Friedman, Isidore Dollinger and Mortimer A. Cullen changed from the Assembly to the Senate at the beginning of this Legislature. Assemblymen Arthur Wachtel and Fred S. Hollowell were elected to fill vacancies in the Senate.

Note: For brevity, the chairmanships omit the words "...the Committee on (the)..."

District Senator Party Notes
1st Perry B. Duryea Sr.* Republican on April 11, 1945, appointed as Commissioner of Conservation.[2]
W. Kingsland Macy Republican on November 6, 1945, elected to fill vacancy;
on November 5, 1946, elected to the 80th U.S. Congress
2nd John D. Bennett* Republican
3rd William S. Hults, Jr.* Republican
4th Seymour Halpern* Republican
5th Frederic E. Hammer Republican
6th John V. Downey* Dem./Am. Labor
7th William N. Conrad Democrat
8th James J. Crawford* Dem./Lib.
9th Roy H. Rudd* Democrat
10th James A. Corcoran* Democrat
11th Fred G. Moritt* Dem./Am. Labor
12th Samuel L. Greenberg* Dem./Am. Labor
13th William Kirnan* Democrat
14th Joseph E. Parisi Republican
15th Louis L. Friedman* Democrat
16th William Rosenblatt Democrat
17th Robert S. Bainbridge* Republican
18th Elmer F. Quinn* Democrat Minority Leader[3]
19th Francis J. Mahoney* Democrat
20th Frederic R. Coudert, Jr.* Republican on November 5, 1946, elected to the 80th U.S. Congress
21st Gordon I. Novod Democrat
22nd Richard A. DiCostanzo* Rep./Am. Labor
23rd Alexander A. Falk* Dem./Am. Labor
24th Lazarus Joseph* Dem./Am. Labor on November 6, 1945, elected New York City Comptroller
The seat remained vacant throughout the session of 1946
25th Carl Pack* Dem./Am. Labor died on August 7, 1945
Arthur Wachtel* Democrat on November 6, 1945, elected to fill vacancy
26th Isidore Dollinger* Dem./Am. Labor
27th Paul A. Fino Republican
28th Lowell H. Brown Rep./Am. Labor
29th William F. Condon* Republican
30th J. Raymond McGovern Republican
31st Pliny W. Williamson* Republican
32nd Thomas C. Desmond* Republican
33rd Frederic H. Bontecou* Republican
34th Arthur H. Wicks* Republican Chairman of Finance
35th Mortimer A. Cullen* Dem./Am. Labor
36th Gilbert T. Seelye* Republican
37th Thomas F. Campbell Republican
38th Benjamin F. Feinberg* Rep./Am. Labor re-elected Temporary President
39th Rhoda Fox Graves* Republican
40th Fred A. Young* Rep./Dem.
41st Vincent R. Corrou Dem./Am. Labor
42nd Isaac B. Mitchell* Republican
43rd Richard P. Byrne Dem./Am. Labor
44th Walter W. Stokes* Republican
45th Floyd E. Anderson* Republican
46th Chauncey B. Hammond* Republican
47th Henry W. Griffith* Republican
48th Earle S. Warner* Republican on January 22, 1945, appointed to the New York Supreme Court[4]
Fred S. Hollowell* Republican on March 6, 1945, elected to fill vacancy.[5]
49th Austin W. Erwin* Republican
50th Rodney B. Janes* Republican
51st Allen J. Oliver* Republican
52nd William Bewley* Rep./Dem.
53rd Walter J. Mahoney* Republican
54th Stephen J. Wojtkowiak* Dem./Am. Labor died on April 6, 1945
Edmund P. Radwan Republican on November 6, 1945, elected to fill vacancy
55th Charles O. Burney, Jr.* Republican
56th George H. Pierce* Rep./Am. Labor


  • Clerk: William S. King
  • Assistant Clerk: Pat E. Provenzano

State Assembly


Note: For brevity, the chairmanships omit the words "...the Committee on (the)..."

District Assemblymen Party Notes
Albany 1st Charles C. Wallace Dem./Am. labor
2nd George W. Foy* Dem./Am. Labor
3rd James F. Dillon Dem./Am. Labor
Allegany William H. MacKenzie* Rep./Am. Labor
Bronx 1st Patrick J. Fogarty* Dem./Am. Labor
2nd Sidney A. Fine Dem./Am. Labor
3rd Edward T. Galloway Dem./Am. Labor
4th Matthew J. H. McLaughlin* Democrat
5th Arthur Wachtel* Dem./Am. Labor resigned to run for the State Senate
The seat remained vacant throughout the session of 1946
6th Julius J. Gans* Dem./Am. Labor
7th Louis Peck Democrat
8th Louis Bennett* Dem./Am. Labor
9th Francis T. Murphy Democrat
10th John J. DePasquale Republican
11th Gladys E. Banks Republican
12th Nathan A. Lashin Dem./Am. Labor
13th Leo Isacson Am. Labor/Rep.
Broome 1st Richard H. Knauf* Rep./Am. Labor
2nd Orlo M. Brees* Republican
Cattaraugus Leo P. Noonan* Republican
Cayuga James H. Chase* Republican
Chautauqua E. Herman Magnuson* Rep./Am. Labor
Chemung Harry J. Tifft* Republican
Chenango Irving M. Ives* Rep./Dem./A.L. Majority Leader;
on November 5, 1946, elected to the U.S. Senate
Clinton Leslie G. Ryan* Rep./Am. Labor
Columbia Frederick A. Washburn* Republican
Cortland Harold L. Creal* Republican
Delaware Elmer J. Kellam* Republican
Dutchess Ernest I. Hatfield* Republican
Erie 1st Frank A. Gugino* Republican
2nd Justin C. Morgan* Republican
3rd William J. Butler* Republican
4th John P. Quinn* Dem./Am. Labor
5th Philip V. Baczkowski* Dem./Am. Labor
6th George F. Dannebrock Republican
7th Julius Volker Republican
8th John R. Pillion* Republican
Essex Sheldon F. Wickes* Rep./Dem. appointed as County Judge
L. Judson Morhouse Republican on November 6, 1945, elected to fill vacancy
Franklin William L. Doige* Rep./Dem.
Fulton and Hamilton Joseph R. Younglove* Rep./Dem.
Genesee Herbert A. Rapp* Republican
Greene William E. Brady* Republican
Herkimer Leo A. Lawrence* Rep./Dem./A.L.
Jefferson Orin S. Wilcox Republican
Kings 1st Max M. Turshen* Dem./Am. Labor
2nd J. Sidney Levine Dem./Lib.
3rd Mary A. Gillen* Democrat
4th Bernard Austin* Dem./Am. Labor
5th John R. Starkey* Dem./Am. Labor
6th Robert J. Crews* Rep./Am. Labor
7th John F. Furey* Dem./Am. Labor
8th Arthur A. Low Dem./Am. Labor
9th Frank J. McMullen Republican
10th Lewis W. Olliffe* Rep./Am. Labor
11th Eugene F. Bannigan* Dem./Am. Labor
12th James W. Feely* Dem./Am. Labor
13th Lawrence P. Murphy Democrat
14th Harry Gittleson* Dem./Am. Labor
15th John Smolenski* Democrat
16th Frank J. Pino Democrat
17th John J. Walsh Democrat
18th Irwin Steingut* Dem./Am. Labor Minority Leader
19th Philip J. Schupler Dem./Lib.
20th John E. Beck Republican
21st Thomas A. Dwyer* Dem./Am. Labor
22nd Anthony J. Travia* Democrat
23rd Alfred A. Lama* Dem./Am. Labor
24th Philip Blank Democrat
Lewis Benjamin H. Demo* Rep./Dem.
Livingston Joseph W. Ward* Republican
Madison Wheeler Milmoe* Republican
Monroe 1st Frank J. Sellmayer, Jr.* Republican
2nd Abraham Schulman* Republican
3rd George T. Manning* Republican
4th Thomas F. Riley* Republican
Montgomery John F. Bennison* Republican
Nassau 1st Frank J. Becker Republican
2nd Joseph F. Carlino Republican
3rd Genesta M. Strong Republican
4th David S. Hill, Jr. Republican
New York 1st MacNeil Mitchell* Republican
2nd Louis DeSalvio* Democrat
3rd Owen McGivern* Democrat
4th Leonard Farbstein* Democrat
5th Irwin D. Davidson* Dem./Am. Labor
6th Francis X. McGowan* Democrat
7th Patrick H. Sullivan* Dem./Am. Labor
8th Archibald Douglas, Jr. Republican
9th John R. Brook* Republican
10th John P. Morrissey* Democrat
11th William E. Prince Democrat
12th William T. Andrews* Dem./Am. Labor
13th Daniel Flynn* Democrat
14th Hulan E. Jack* Dem./Am. Labor
15th William J. A. Glancy* Democrat
16th Hamlet O. Catenaccio* Rep./Am. Labor
Niagara 1st Jacob E. Hollinger* Rep./Dem.
2nd Harry D. Suitor* Republican died on March 25, 1945
Ernest Curto Rep./Am. Labor on November 6, 1945, elected to fill vacancy
Oneida 1st Harlow E. Bacon Republican
2nd Frank A. Emma* Dem./Am. Labor
Onondaga 1st Leo W. Breed* Republican
2nd Clellan S. Forsythe Republican
3rd Frank J. Costello* Republican on November 6, 1945, elected Mayor of Syracuse
Lawrence M. Rulison Republican on December 18, 1945, elected to fill vacancy
Ontario Harry R. Marble* Republican
Orange 1st Lee B. Mailler* Republican
2nd Wilson C. Van Duzer* Republican
Orleans John S. Thompson* Republican
Oswego Henry D. Coville* Republican
Otsego Paul L. Talbot Republican
Putnam D. Mallory Stephens* Republican Chairman of Ways and Means
Queens 1st Alexander Del Giorno Democrat
2nd William E. Clancy* Dem./Am. Labor
3rd Joseph H. Brinster Republican
4th Charles J. Dalzell* Dem./Am. Labor
5th Thomas F. Hurley Republican
6th William F. Bowe* Dem./Am. Labor
7th George Archinal* Republican
8th Samuel Rabin Republican
9th Fred W. Preller Republican
10th Angelo Graci Republican
11th Thomas Fitzpatrick Dem./Am. Labor
12th John H. Ferril* Dem./Am. Labor died on February 23, 1945
James J. Crisona Dem./Am. Labor on November 6, 1945, elected to fill vacancy
Rensselaer John S. Finch* Republican
Richmond 1st Arthur T. Berge Republican
2nd Edmund P. Radigan Republican
Rockland Robert Walmsley* Republican
St. Lawrence Allan P. Sill* Republican
Saratoga Richard J. Sherman* Republican appointed as County Judge
John L. Ostrander Republican on November 6, 1945, elected to fill vacancy
Schenectady Oswald D. Heck* Republican re-elected Speaker
Schoharie Arthur L. Parsons* Republican
Schuyler Jerry W. Black Republican
Seneca Lawrence W. Van Cleef* Republican
Steuben William M. Stuart* Republican
Suffolk 1st Edmund R. Lupton* Republican
2nd Elisha T. Barrett* Republican
Sullivan James G. Lyons Dem./Am. Labor
Tioga Myron D. Albro* Republican
Tompkins Stanley C. Shaw* Republican
Ulster John F. Wadlin* Republican
Warren Harry A. Reoux* Republican Chairman of Judiciary
Washington Henry Neddo* Republican
Wayne Henry V. Wilson* Republican
Westchester 1st Malcolm Wilson* Republican
2nd Fred A. Graber Republican
3rd P. Raymond Sirignano Republican
4th Frank S. McCullough Republican
5th Christopher H. Lawrence* Republican
6th Theodore Hill, Jr.* Republican
Wyoming Harold C. Ostertag* Republican
Yates Fred S. Hollowell* Republican resigned to run for the State Senate
Vernon W. Blodgett Republican on November 6, 1945, elected to fill vacancy




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