Fossella v. Dinkins

• Decision Date: 23 October 1985
• Citation: 494 N.Y.S.2d 1012,130 Misc.2d 52
• Parties: In the Matter of the Application of Frank V. FOSSELLA, et al., Petitioners, v. David DINKINS, City Clerk, and Clerk of the Council, et al., Respondents.
• Court: New York Supreme Court

Page 1012

494 N.Y.S.2d 1012

130 Misc.2d 52

In the Matter of the Application of Frank V. FOSSELLA, et al., Petitioners, v. David DINKINS, City Clerk, and Clerk of the Council, et al Respondents.

Supreme Court, Richmond County.

Oct. 23, 1985.

Anne E. Simon, New York City (Franklin Siegal of counsel), for intervenors DeLuca, Henkel and Mobilization for the Survival of New York, Inc.

Jerry H. Goldfeder, New York City, for intervenor, Campaign for a Nuclear Navyport Referendum.

Robert Allan Muir, Jr., Staten Island, for petitioners.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner, Thomas C. Crane, Steven H. Mosenson of counsel), for municipal respondents.

John J. Marchi, pro se, David Jaffe and Kathryn K. Rooney, Staten Island, for John J. Marchi amicus curiae.

MEMORANDUM DECISION

CHARLES A. KUFFNER, Jr., Justice.

I. INTRODUCTION

By order dated October 2, 1985, the Appellate Division, Second Judicial Department remanded the above matter to this Court with a direction that it be referred to a referee to hear and report concerning the validity of two petitions which seek to place upon the ballot at the next general election a certain referendum to amend the charter of the City of New York. The nature of the referendum in question as well as the history of this matter to date is set forth in the opinion and order of the Appellate Division (App.Div.) 493 N.Y.S.2d 859; N.Y.L.J. 10-4-85, p. 14, col. 6) and the opinion and order of this Court dated September 6, 1985 (N.Y.Sup.) 493 N.Y.S.2d 1947; N.Y.L.J. 9-16-85, p. 16, col. 6).

II. THE CHALLENGE TO THE PETITIONS

The referee has filed her report and the Court has confirmed her finding to the effect that the petitions in question are valid.

On October 21, 1985, the parties and the amicus appeared before this Court. Because of the expedited nature of these proceedings an oral application to confirm the referee's report was made. Petitioner's main objection was that the report was made on the basis of an extrapolation of the petitions reviewed, to date, and not upon a full line by line review of all 35 volumes of petitions containing in excess of 100,000 signatures. The referee in proceeding as she did and the Court in confirming her report were mindful of the decision of the Appellate Division, Second Department in Matter of Ryan v. Sadowski, 71 A.D.2d 938, 419 N.Y.S.2d 757. In that case, the court determined that it was error for Special Term to have terminated a designating petition challenge without full review of all the signatures. Special Term had made its determination utilizing a ratio for the pages not completed to the ratio of valid signatures found on the pages examined.

Significant differences appear, however, in the matter before the Court. In Ryan, the petition in question was one designating a candidate for the office of Judge of the Civil Court of the City of New York and was, obviously, much shorter than the one at issue. Implicit within the Ryan decision was the Court's determination that had Special Term proceeded (utilizing referees) it could, in fact, have completed examination of the petition. The contrary is the case here.

Following the remand of this case from the Appellate Division, this Court directed a line by line examination of the petitions. Five referees worked diligently to complete their task. Their work required the Board of Election offices in five Boroughs to remain open late into the evening. Court reporte were required to work overtime as were employees of the Board of Elections, all at great expense to the taxpayers. Notwithstanding these great efforts, it was apparent to the chief referee that a line by line examination could not be completed by election day let alone at a time before that date sufficient to permit the inevitable appeals to follow this Court's decision. Faced with the option of continuing the examination without regard to the election date or committing even greater judicial and support resources to the effort at hand, with no real expectation of attaining a different result, this Court has opted to accept the referee's report as submitted. The rule of law is fundamentally one of reason tempered by human experience. To mechanically apply the Ryan case to the situation at bar (as petitioners urge) would be to convert the principle of stare decisis to one of judicial paralysis and would, impermissibly, result in petitioners obtaining by delay that which they failed to achieve by a review of the petitions.

The petitions having withstood judicial scrutiny it is now the duty of this Court to pass upon the constitutional objections raised by the petitioners and the amicus.

III. STANDING

Intervenors took the position at oral argument that none of the petitioners have any standing to raise the constitutional issues heretofore raised, since they have never alleged a particularized injury to themselves.

On this issue the Court notes that this issue of standing has never been raised by intervenors in their pleadings until they attempted to include it as an affirmative defense in an amended answer dated October 20, 1985 and served October 21, 1985. Several aspects of this entire proceeding were taken to the Appellate Division, Second Department, which remanded the matter back to this Court on October 2, 1985. At no time therein did intervenors ever raise the issue of standing. An affirmative defense not pleaded in either a responsive pleading or a timely motion to dismiss is waived (CPLR 3018(b), 3211(e); DeLisa v. Amica Insurance Company, 59 A.D.2d 380, 382, 399 N.Y.S.2d 909). The facts underlying this affirmative defense were known, or should have been known, to intervenors at the time they originally answered the petitions and they give no excuse or reason why they should be granted leave to amend at this late stage, when the election is fast approaching.

IV. JUSTICIABILITY

Intervenors also argue that the constitutional issue is not ripe for determination inasmuch as the matter has not yet been placed before the voters. They support their position by stating that any determination of this Court as to the constitutionality of the amendment in advance of enactment would be a prohibited advisory opinion and cite Matter of State Industrial Comm., 224 N.Y. 13, 119 N.E. 1027 and New York Public Research Group v. Carey, 42 N.Y.2d 527, 399 N.Y.S.2d 621, 369 N.E.2d 1155. The Court's ruling might have a prejudicial effect on the right of the voters to exercise their franchise in a free and unfettered manner. Finally, they aver that the need to determine the constitutionality of the proposal would be rendered moot if the referendum is not approved by the voters.

Whatever the merits of these arguments, the Court need not address the issue of ripeness since the law of the case has already been stated by the Appellate Division on October 2, 1985. That Court held that the constitutional issue may be determined when the validity of the signatures on the petitions has been decided, and will be ripe if the petitions withstand judicial scrutiny. As stated hereinabove, based on the report of the referee, the petition has withstood judicial scrutiny and contains a sufficient number of signatures.

V. CONSTITUTIONALITY

It is argued that the proposed referendum conflicts with the authority granted to the Congress (under Art. I. Section 8 of the United States Constitution) to provide for the common defense of the nation.

The intervenors contend that the proposed legislation would do no more than "limit the voluntary assistance ... " of the City of New York in the transferrance of its lands and the use of its monies in the construction and maintenance of a military facility where nuclear weapons may be located.

Intervenors aver that the proposed referendum is nothing more than an attempt to exercise the police powers of the municipality in a fashion designed to protect its citizens from injury to their lives or health. Such authority has been recognized even in the face of a claim of pre-emption by federal legislation or regulation. See, e.g. DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976); Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); Head v. New Mexico Board of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748 (1943).

Closely related to the above claim is the question of what effect such a proposed referendum would have should it be adopted and found to be otherwise lawful. As has been previously stated, intervenors rely upon a line of decisions of the United States Supreme Court which sustained local regulation of various activities which, arguably, were pre-empted by federal action. None of these cases, however, directly address the issue of to what extent such local legislation may be promulgated where its only effect is to place a temporary obstacle in the path of concerted federal action designed to provide for the common defense of the nation.

It is the opinion of the Court that in the face of such activity by the Congress and the Department of Defense, the City of New York may not legislate, by referendum or otherwise, in such fashion as to hinder the effectuation of national security objectives.

We are one people. The United States Constitution vests in the Federal Government the obligation to provide defense to the entire nation and all of its people without regard to their location (See, United States v. McGee, 432 F.Supp. 557, 561 aff'd 611 F.2d 375). A necessary correlative to the duty imposed upon the Federal Government is the right it enjoys to make and effectuate decisions respecting the deployment of defense systems, within the United States, unfettered by local regulation designed to impede its efforts.

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