
    In the Matter of Frank V. Fossella et al., Respondents-Appellants, v David Dinkins et al., Respondents. Campaign for a Nuclear Navyport Referendum et al., Intervenors-Appellants-Respondents.
    Argued October 28, 1985;
    decided October 30, 1985
    
      POINTS OF COUNSEL
    
      Anne E. Simon, Franklin Siegel and Jerry H. Goldfeder for intervenors-appellants-respondents.
    I. The erroneous holding of the court below that the question of the constitutionality of the proposed City Charter amendment is ripe for judicial review is an unprecedented and impermissible judicial encroachment on the legislative process and on individual rights. (Matter of State Indus. Commn., 224 NY 13; New York Public Interest Research Group v Carey, 42 NY2d 527; Matter of McCabe v Voorhis, 243 NY 401; Matter of Board of Educ. v City of New York, 41 NY2d 535; Matter of Cantrell v Hayduk, 45 NY2d 925; Matter of Tierney v Cohen, 268 NY 464; Matter of Reuss v Katz, 43 Misc 2d 921; Matter of Lewis v Klein, 45 NY2d 930.) II. The constitutional issue is not properly before this court. (Matter of Schwartz v Village of Spring Val., 42 Misc 2d 98; Matter of Reuss v Katz, 43 Misc 2d 921, 21 AD2d 968; Matter of Cassese v Katz, 26 AD2d 248, 18 NY2d 694; Matter of Silberman v Katz, 54 Misc 2d 956, 28 AD2d 992; People v Parker, 41 NY2d 21; Thornhill v Alabama, 310 US 88; Singleton v Wulff, 428 US 106; Matter of Urban League v County of Monroe, 49 NY2d 551; Gonzalez v Freeman, 334 F2d 570; ATL, Inc. v United States, 736 F2d 677.) III. Special Term erred in granting summary judgment. (Sillman v Twentieth Century-Fox Corp., 3 NY2d 395; Five Boro Elec. Contrs. Assn. v City of New York, 37 AD2d 807, 33 NY2d 676.) IV. The proposed City Charter amendment, if enacted, would not violate the United States Constitution. (Lighthouse Shores v Town of Islip, 41 NY2d 7; Hirson v United Stores Corp., 263 App Div 646; Childs v Childs, 69 AD2d 406; Euclid v Ambler Co., 272 US 365; Village of Belle Terre v Boraas, 416 US 1; Rice v Williams Co., 458 US 654; Hines v Davidowitz, 312 US 52; Florida Avocado Growers v Paul, 373 US 132; Askew v American Waterways Operators, 411 US 325.) V. The referendum is proper under State statutes. (Matter of Cassese v Katz, 26 AD2d 248, 18 NY2d 694; Matter of Warden [Newburgh Police Dept.], 300 NY 39; Hacker v Common Council, 49 Misc 2d 69; Brooklyn Park Commrs. v Armstrong, 45 NY 234.) VI. The first proceeding herein was not timely filed. (Matter of De Santis v Brown, 37 AD2d 865.)
    
      Robert Allan Muir, Jr., for Frank V. Fossella, respondent-oppellant.
    I. Special circumstances and compelling reasons exist which make the constitutionality issue "ripe” and which mandate immediate judicial action. (Matter of McCabe v Voorhis, 243 NY 401; New York Public Interest Research Group v Carey, 42 NY2d 527; Matter of Cantrell v Hayduk, 45 NY2d 925; Matter of Tierney v Cohen, 268 NY 464; Matter of Mooney v Cohen, 272 NY 33; Matter of Osborn v Cohen, 272 NY 55; Matter of Stoughton v Cohen, 281 NY 343.) II. Circumstances and facts affecting "ripeness” of the constitutional issue have been altered since Special Term’s ruling of September 6,1985. III. The Federal Government is vested with exclusive jurisdiction to provide for the common defense of the United States. (Hauenstein v Lynham, 100 US 483; Hirabayashi v United States, 320 US 81; In re Yamashita, 327 US 1; United States v MacIntosh, 283 US 605; Taylor v Brown, 137 F2d 654; Fernandez v Wiener, 326 US 340; United States v Belmont, 301 US 324; Weinberger v Catholic Action of Hawaii, 454 US 139; Bertelsen v Cooney, 213 F2d 275, 348 US 890; Curry v Secretary of Army, 595 F2d 873.) IV. This referendum is void since under New York law no referendum may be submitted to the electorate unless authorized by State law, with advisory referendums seeking the opinion of the electorate on a particular issue specifically prohibited. (Matter of Astwood v Cohen, 291 NY 484; Matter of Silberman v Katz, 54 Misc 2d 956, 28 AD2d 992.) V. Special Term correctly ruled interveners had waived any objection to standing of petitioners. (De Lisa v Amica Mut. Ins. Co., 59 AD2d 380.) VI. Special Term erred in its confirmation of the report of the referee. (Matter of Ryan v Sadowski, 71 AD2d 938.) VII. The referee and Special Term erred in permitting intervenors to validate signatures previously held to be invalid by the City Clerk. (Matter of Suarez v Sadowski, 48 NY2d 620; Matter of Hutson v Bass, 54 NY2d 772.) VIII. This court should rule alternatively on the issues of number of valid signatures and constitutionality. (Matter of Kashinsky v Board of Elections, 89 AD2d 951.)
    
      Frederick A. O. Schwarz, Jr., Corporation Counsel (Leonard Koerner, Thomas C. Crane and Steven H. Mosenson of counsel), for respondents.
    I. These proceedings seek to strike the proposed City Charter amendment from the November ballot. Under such circumstances the constitutional issue concerning the amendment is ripe for judicial determination. (Matter of Cantrell v Hayduk, 45 NY2d 925; New York Public Interest Research Group v Carey, 42 NY2d 527; Matter of McCabe v Voorhis, 243 NY 401; Matter of Tierney v Cohen, 268 NY 464; Matter of Mooney v Cohen, 272 NY 33; Matter of Osborn v Cohen, 272 NY 55; Johnson v Etkin, 279 NY 1; Matter of Stoughton v Cohen, 281 NY 343.) II. The proposed City Charter amendment, which prohibits the Board of Estimate from taking any action to aid in the development of a military base in New York City which is designed to carry or store nuclear weapons, interferes with the Federal Government’s exclusive power to site military installations and is, therefore, unconstitutional. The referendum is an indirect attempt to influence public opinion on defense policy which would be advisory and proscribed. (Matter of Silberman v Katz, 54 Misc 2d 956, 28 AD2d 992; Fidelity Fed. Sav. & Loan Assn. v De La Cuesta, 458 US 141; Hines v Davidowitz, 312 US 52; Pacific Gas & Elec. v Energy Resources Commn., 461 US 190; United States v McGee, 432 F Supp 557, 611 F2d 375; Stewart & Co. v Sadrakula, 309 US 94; Tarble’s Case, 80 US 397; California Commn. v United States, 355 US 534; Holdridge v United States, 282 F2d 302; City of Los Angeles v United States, 355 F Supp 461.) III. The objection filed by petitioners to the City Clerk’s certification of the referendum petition was timely. (Matter of Rochester Gas & Elec. Corp. v Maltbie, 272 App Div 162.)
    
      John J. Marchi, pro se, David Jaffe and Kathryn K. Rooney for Senator John J. Marchi, amicus curiae.
    
    I. Special circumstances and compelling reasons exist which make the constitutionality issue "ripe” and which mandate immediate judicial action. (Matter of McCabe v Voorhis, 243 NY 401.) II. The Federal Government is vested with exclusive jurisdiction to provide for the common defense of the United States. (Hauenstein v Lynham, 100 US 483; United States v MacIntosh, 283 US 605; Fernandez v Wiener, 326 US 340; United States v Belmont, 301 US 324; Weinberger v Catholic Action of Hawaii, 454 US 139; United States v McGee, 432 F Supp 557, 611 F2d 375; Stewart & Co. v Sadrakula, 309 US 94; Holdridge v United States, 282 F2d 302; Pauling v McElroy, 278 F2d 252.) III. The Federal Government is vested with exclusive jurisdiction over United States foreign policy. (United States v Belmont, 301 US 324; Holdridge v United States, 282 F2d 302; Matter of Silberman v Katz, 54 Misc 2d 956, 28 AD2d 992.) IV. The proposed charter amendment is unconstitutional pursuant to NY Constitution article XII which mandates that the defense of the United States is the obligation of all persons within this State. V. This referendum is void since under New York law no referendum may be submitted to the electorate unless authorized by State law, with advisory referendums seeking the opinion of the electorate on a particular issue specifically prohibited. (Matter of McCabe v Voorhis, 243 NY 401; Matter of Astwood v Cohen, 291 NY 484; Matter of Silberman v Katz, 54 Misc 2d 956.)
    
      Arthur Eisenberg and Steven R. Shapiro for New York Civil Liberties Union, amicus curiae.
    
    The courts below erred in concluding that the proposed referendum would, if adopted, unconstitutionally interfere with the authority of the Federal Government to plan for the national defense. (Paul v United States, 371 US 245; Florida Avocado Growers v Paul, 373 US 132; Southern Pac. Co. v Arizona, 325 US 761; Pacific Gas & Elec. v Energy Resources Commn., 461 US 190; Los Angeles v Lyons, 461 US 95.)
   OPINION OF THE COURT

Per Curiam.

This is a proceeding to have the Board of Elections remove from the ballot a proposed referendum which would amend New York City Charter § 67. Basically the amendment relates to the use of city property and funds in connection with a military installation by the Federal Government any component of which is designed to carry or store nuclear weapons.

The amendment would prohibit the Board of Estimate from approving the sale, lease, exchange, or other disposition of city property for the development of such a facility, and would further prohibit the Board from granting any franchise, permit, license, use, or consent to use city property or streets for such a purpose. The proposed amendment would also prohibit the Board from approving an appropriation of funds which would facilitate the development of this type of military installation.

Special Term found that the proposed amendment would interfere with the Federal Government’s power to provide for the defense of the Nation and thus would be unconstitutional under US Constitution, article I, § 8. The court also found that the amendment called for a citywide opinion poll for which no express authority had been granted by the Legislature.

The Appellate Division unanimously affirmed agreeing with Special Term that the amendment would violate the Federal Constitution. The court also held that the proposed amendment was invalid under State Law § 50 (2).

At the outset we note that this controversy is justiciable. Although it is generally inappropriate for the courts to consider the validity of proposed legislation, they may do so in a case such as this where a proposed referendum sought to be removed from the ballot is in direct conflict with a State statute. Our holding in New York Public Interest Research Group v Carey (42 NY2d 527, 531) was not to the contrary. There we noted (at p 532) that a decision on such a question is not an advisory opinion when "all the expense and human effort involved in the election process would be wasted because of fatal defects in the law”. Here, unlike in the New York Public Interest case the proceedings seek to remove the referendum from the ballot. In such an instance the court may grant the relief sought, the rule being "one of prudence rather than one of power” (Matter of McCabe v Voorhis, 243 NY 401, 412).

On the merits, although we agree with the courts below that the referendum should be stricken from the ballot, we do so solely on State statutory grounds. In our view the statutes and policies of this State are alone sufficient to sustain the decisions reached below. There is no need to reach the Federal constitutional questions or the other issues raised in this proceeding.

The proposed amendment is unquestionably invalid to the extent that it seeks to amend the City Charter to preclude the city from approving "any sale, lease, exchange or other disposition” of city property for a Federal military installation. This is so because State Law § 50 (2) expressly provides, in language nearly identical to the proposed charter amendment that "every * * * city * * * is hereby authorized and empowered to sell, lease, exchange, donate or otherwise dispose of’ city land to the United States for use as a military reservation "notwithstanding the provisions of any charter or any other statute”. Since this portion of the proposed amendment seeks to deprive the city authorities of a right and power which the Legislature has held may not be alienated, by City Charter provisions or otherwise, it is invalid on its face and could have no effect in the event it were enacted. There is no need for us to consider whether any or all of the remaining provisions are valid. The resolution is manifestly invalid in a substantive respect, since the disposition and use of city land is at the core of the controversy. Under those circumstances it would be inappropriate to submit the proposition to the electorate in a redacted and possibly confusing form (see, Matter of McCabe v Voorhis, 243 NY 401, 416, supra).

Finally we note that the intervenors’ challenge to standing was waived because it was not raised as an affirmative defense, or by way of motion to dismiss, at Special Term (CPLR 3018 [b]; 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

Appeals taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (see, Cohen and Karger, Powers of the New York Court of Appeals § 57, at 258-260 [rev ed]). Oral motion by intervenors-respondents Campaign for a Nuclear Navyport Referendum et al. for leave to appeal granted. Order affirmed, without costs.  