158 A.D.2d 169 | N.Y. App. Div. | 1990
Lead Opinion
The action seeks a declaration as to the constitutionality of Laws of 1989 (ch 773), as amended by Laws of 1990 (ch 17) (herein chapter 773), a special law setting forth a process by which the Borough of Staten Island may be separated from the City of New York and established as a new City of Staten Island. Chapter 773 first provides for a referendum in which only Staten Islanders would vote on whether a commission of only Staten Islanders should be created to draft a proposed charter for a proposed City of Staten Island independent of the City of New York. In the event of a majority affirmative vote, there would then be a period set aside for public hearings on the proposed charter on Staten Island only, to be followed by a second referendum in which only Staten Islanders would vote on whether the proposed charter should be adopted. In the event of a majority affirmative in this second referendum, the charter commission is to prepare "proposed legislation enabling the borough of Staten Island to disengage and separate from the city of New York.” The final step would be enactment of such enabling legislation.
The concurring opinion would declare chapter 773 to be constitutional on the ground that "the Legislature may, after all, choose to present any final enactment for the approval of the entire body politic of the City of New York.” This is to strongly suggest, if not actually to hold, that the Legislature must somewhere along the line, before a secession is actually effected, amend chapter 773 so as to "authorize a method whereby the residents of [the other four boroughs] are accorded the opportunity to express their views on the subject.” We hardly think it appropriate for a court to advise the Legislature as to what it must do with a piece of legislation so as to avoid a future declaration of unconstitutionality; in any event, we see no basis for anticipating, as the concurrers apparently do, a future inclination on the part of the Legislature to obtain input from the residents of the other four boroughs, let alone their consent.
It is clear that chapter 773 was designed primarily to inform the Legislature as to the extent of secessionist sentiment on Staten Island and the manner in which Staten Islanders would govern themselves if permitted to do so; not the least concern is shown for public sentiment in the other four boroughs. There is no reason to suppose that the legisla
Moreover, it is not so that chapter 773 is purely advisory in nature. It is only in the event of affirmative votes in both of the referenda being put to Staten Islanders that further legislation will be required to effect a secession. A negative vote in either referendum will, according to the State, stop the process cold. Staten Islanders are thereby given a veto power over secession denied the residents of the other four boroughs. Surely this raises a question of equal protection ripe for adjudication—why should Staten Islanders be given the franchise to stop secession and other New Yorkers not?
With respect to the merits, plaintiffs argue that chapter 773, contemplating as it does dismemberment of the City of New York on such a large scale, relates to the property, affairs or government of the City of New York, and that a home rule message from either the Mayor or City Council of the City of New York is therefore required under NY Constitution, article IX, §2 (b) (2). As authority, plaintiffs rely principally on City of New York v Village of Lawrence (250 NY 429, 445), which, while holding a home rule message to
Plaintiffs’ equal protection claim invokes a very closely divided California Supreme Court in Fullerton Joint Union High School Dist. v State Bd. of Educ. (32 Cal 3d 779, 654 P2d 168), but, unlike some of the views expressed in that case, we do not read the decisions of the United States Supreme Court
Accordingly, the order of the Supreme Court, New York County (Herman Cahn, J.), entered on or about May 22, 1990, which denied plaintiffs’ motion for summary judgment declaring Laws of 1989 (ch 773), as amended by Laws of 1990 (ch 17), to be unconstitutional, and granted defendant’s cross motion for summary judgment declaring said law to be constitutional, should be affirmed, without costs.
Concurrence Opinion
I concur with the majority only insofar as I agree that Laws of 1989 (ch 773) (herein chapter 773), as written, does not violate either the Federal or State Constitutions. It is unnecessary and, indeed, repugnant to the proper role of the courts to render an advisory opinion where one is not required, particularly when this entails placing the judiciary’s prior stamp of approval on a matter so unsettled and speculative as that involved here. Certainly, it is inappropriate for us to ignore the precedent that has so long guided our courts merely because the parties request a prospective judicial determination. In the final analysis chapter 773, as promulgated, heed not be construed in such a manner as would mandate that it be declared unconstitutional; and it is axiomatic that, whenever possible, a statute should be given an interpretation which avoids constitutional infirmity (People v Epton, 19 NY2d 496, remittitur amended 19 NY2d 1017, cert denied 390 US 29; Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309, appeal dismissed 56 NY2d 645; New York Pub. Interest Research Group v Insurance Information Inst., — AD2d — [1st Dept, May 3,1990]).
By its terms, chapter 773 provides for a referendum in November of 1990 in which only Staten Island residents would vote upon whether they wish to initiate the secession process, to be followed, in the event of an affirmative result, by the creation of a commission dominated by Staten Islanders. This commission would then recommend a charter for a prospective City of Staten Island. Public hearings on Staten Island would
In fact, it is the majority which is engaging in speculation and mind reading as to the intent of the Legislature. Surely, there is no reason to expect the Legislature to act in an unconstitutional manner, and, regardless of the outcome of the vote, the Legislature may decide to do nothing. Accordingly, the challenged law is, in effect, advisory only and does not inexorably lead to the separation of Staten Island from the City of New York. While chapter 773 clearly commences a procedure which may eventually terminate in secession, it does not compel such a consummation. Since the statute, on its face, is not self-implementing and contemplates further legislative initiative, we may not anticipate that the Legislature will not, assuming that the voters of Staten Island have indicated a desire to disengage from the city, authorize a method whereby the residents of Brooklyn, Bronx, Manhattan and Queens, as well as its public officials and citizens groups, are accorded the opportunity to express their views on the subject. Therefore, it is premature for this court to decide whether the State Legislature may constitutionally bypass obtaining the consent of the city and the voters of all of the boroughs prior to effecting the separation of Staten Island; the Legislature may, after all, choose to present any final enactment for the approval of the entire body politic of the City of New York. If and when the Legislature fails to do so will be the proper time for the courts to examine the constitutional implications of its actions.
Order, Supreme Court, New York County, entered on or about May 22, 1990, unanimously affirmed, without costs and without disbursements.