Procaccino v. Board of Elections of City of New York

• Decision Date: 05 March 1973
• Citation: 341 N.Y.S.2d 810,73 Misc.2d 462
• Parties: Mario A. PROCACCINO, Plaintiff, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 810

341 N.Y.S.2d 810

73 Misc.2d 462

Mario A. PROCACCINO, Plaintiff, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Defendant.

Supreme Court, Special Term, New York County, Part I.

March 5, 1973.

Fuchsberg & Fuchsberg, New York City (Irving Lemov, New York City, of counsel), for plaintiff.

Norman Redlich, Corp. Counsel, New York City, for defendant.

Irving Galt and A. Seth Greenwald, New York City, of counsel, for Louis J. Lefkowitz, intervenor.

VINCENT A. LUPIANO, Justice:

In this action for a declaratory judgment declaring Election Law § 131--a unconstitutional as violative of the Fourteenth Amendment to the United States Constitution and of Article I, Section I and Article II, Section I of the New York State Constitution, plaintiff moves for an order granting him summary judgment pursuant to CPLR 3212. Election Law § 131--a provides: 'Any inconsistent provision of law to the contrary notwithstanding, in cities having a population of one million or more, in any case in which no candidate for the office of mayor, city council president or comptroller receives forty percent or more of the votes cast by the members of a political party for such office in a city-wide primary election, the board of elections of such city shall conduct a run-off primary election between the two candidates receiving the greatest number of votes for the same office. In the event such run-off election be required it shall be held on the second Tuesday next succeeding the date on which the initial primary election was held.' Since State and Federal constitutional issues are raised, the Attorney General of New York State has intervened in defense of constitutionality pursuant to Executive Law § 71.

It is initially urged that plaintiff lacks standing to bring this action. Plaintiff, Mario A. Procaccino, is a former Comptroller of the City of New York and in the last mayoralty election in New York City was a candidate for the office of Mayor. In his complaint, plaintiff avers that he is a citizen of the United States, a resident in the State of New York, City of New York; a duly qualified voter and an enrolled Democrat qualified to vote and to run for Mayor, Comptroller or President of the City Council in the Democratic Party Primary Elections to be held during the year 1973. In view of plaintiff's history as a holder of one public office and a candidate for another public office, both embraced within the legislative enactment under consideration and in view of the presumption of continuance (Wilkins v. Earle, 44 N.Y. 172, 192 (1870); See Bender's New York Evidence § 230.06), it appears that plaintiff has the requisite standing. Indeed, the arguments advanced against plaintiff's standing by the Attorney General as intervenor are cursory and couched in such general terms as to belie their merit.

Historically, as the right of suffrage is a political and not a natural right, it is within the legislature's power to prescribe the manner in which such right shall be exercised. This power, subject to constitutional restrictions, extends to the regulation of the manner by which candidates for public office are chosen and elected (See Abrahams' New York Election Law, Chapter I; see also N.Y. State Constitution, Article III, Section 1). However, plaintiff contends that the exercise by the Legislature of this power as embodied in Election Law § 131--a violates Article IX, Section 2(b)(2) of the New York State Constitution. This constitutional provision states that '(s) ubject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature . . . (s)hall have the power to act in relation to the Property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, . . .'. (Emphasis supplied.) It has not been demonstrated that the subject enactment was passed pursuant to the aforementioned constitutional provision. Subdivision (b) of Article IX, Section 2(b)(2) relating to a 'certificate of necessity' has by its own terminology no application to the City of New York.

The general purpose of this constitutional 'home rule' provision was, insofar as the present inquiry is concerned, to secure to the people of the various localities the right to choose their officers without hindrance from the state. An appropriate introduction to an examination of the state-city relation is the observation by Judge Dillon that '(i)t must now be conceded that the great weight of authority denies In toto the existence, in the absence of special constitutional provisions, of Any inherent right of local self-government which is beyond legislative control' (Dillon, Municipal Corporations, 5th Ed. (1911), vol. I, sec. 98).

A brief analysis of the historical development of municipal home rule commencing with the New York amendment of 1923, which revised Article XII of the then New York State Constitution, may be helpful in understanding the complexities of home rule. Section 2 of said Article XII was designed to prevent undue legislative intrusion into municipal affairs, by requiring that laws relating to the 'property, affairs or government of cities' must either apply to all cities alike or be passed by a two-thirds vote of each house of the Legislature upon a message from the Governor declaring that an emergency exists requiring such legislation. This section further defined a special law to cover any one which was 'special or local in its terms or in its effect'. Subsequently in 1927 the Court of Appeals under this provision struck down a statute which was not passed upon an emergency message and by the concurrent action of two-thirds of each house, holding that such act was essentially local in its effect (Matter of Mayor of New York (Elm St.), 246 N.Y. 72, 158 N.E. 24 (1927)). Inquiry, the Court held, was no longer confined as to whether the act was general or special 'in its terms', but must go further and determine whether it was general or local 'in its effect' (Matter of Mayor of New York (Elm St.) Supra p. 76, 158 N.E. p. 25). The emerging test laid down by Chief Justice Cardozo in Matter of Mayor of New York (Elm Street) Supra p. 78, 158 N.E. p. 26 is delineated as follows: 'If the class in its formation is so unnatural and wayward that only by the rarest coincidence can the range of its extension include more than one locality, and at best but two or three, the act so hedged and circumscribed is local in effect. If the same limits are apparent upon the face of the act, unaided by extrinsic evidence, or are so notorious or obvious as to be the subject of judicial notice, it is also local in its terms'.

Two years later the Court of Appeals rendered its decision in Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929), which is still regarded as the key determination in the state-home rule controversy relating to respective fields of power. The origin of the phrase 'property, affairs or government' may be traced to the Constitution of 1894. Article XII, Section 2, provided that with respect to laws relating to the property, affairs or government of cities, special laws could be passed only in conformity with its provisions and would be subject to the so-called suspensive veto which gave the municipality, whose 'property, affairs or government' was affected by special enactment of the Legislature, an opportunity to express approval or disapproval through its mayor (in cities other than those of the first class, through the mayor and the legislative body concurrently). The Home Rule Amendment of 1923 incorporated the identical phrase 'property, affairs or government' which marked the limits of the old suspensive veto power. In Adler the court found that this phrase was taken from the 1894 Constitution by the promulgators of the Home Rule Amendment with the intention of preserving its technical meaning.

With such preservation, a difficulty has arisen which is epitomized by the language of Judge Crane, 'the fact remains that this court gave to these words, 'property, affairs or government of cities,' a special limited meaning, and we would be unfair to the people of this State if we now changed their meaning. When the people put these words in Article 12 of the Constitution, they put them there with a Court of Appeals' definition not that of Webster's Dictionary' (Adler v. Deegan, Supra, p. 473, 167 N.E. p. 707) (Emphasis supplied). Consequently, judicial interpretation of the phrase 'property, affairs or government' before 1924 was regarded as establishing a precedent binding upon the Court (Adler v. Deegan, Supra pp. 471--473, 167 N.E. pp. 706--707). The rationale of Adler may be summed up in the pithy statement that 'matters of State concern' are beyond the purview of home rule. Chief Judge Cardozo, in a concurring opinion, rejected the test of predominance of interest and declared that the yardstick should be 'that, if the subject be in a substantial degree a matter of state concern, the Legislature may act, though intermingled with it are concerns of the locality . . .. I do not say that an affair must be one of city concern exclusively, to bring it within the scope of the powers conferred upon the municipality by section 3 of the Home Rule article and section 11 of the City Home Rule Law in cases when the state has not undertaken to occupy the field. I assume that, if the affair is partly state and partly local, the city is free to act until the state has intervened. As to concerns of this class there is thus concurrent jurisdiction for each in default of action by the other' (Adler v. Deegan, Supra, p. 491, 167 N.E. p. 714).

The constitutional grant of home rule as primarily embodied in Article IX of the present State Constitution is implemented by the Municipal Home Rule Law (which replaced...