
    City of New York et al., Appellants, v State of New York, Respondent.
    Argued August 29,1990;
    decided September 18, 1990
    
      POINTS OF COUNSEL
    
      Victor A. Kovner, Corporation Counsel (Joel Berger, Ronald P. Younkins and Peter Lehner of counsel), for appellants.
    
      
      Robert Abrams, Attorney-General (Dennis J. Saffran, O. Peter Sherwood and Harvey Golubock of counsel), for respondent.
    
      Richard M. Weinberg and Robert T. Perry for members of the Council of the City of New York, amici curiae.
    
    
      
      Asa D. Sokolow, Joseph Zuckerman, David Buchalter, Sanford Hausler and David A. Slossberg for Citizens Union of the City of New York, amicus curiae.
    
    
      Lydia Rocissano Marola for New York State Conference of Mayors and other Municipal Officials, amicus curiae.
    
    
      Raymond A. Fasano for Assemblyman Robert A. Straniere, amicus curiae.
    
   OPINION OF THE COURT

Per Curiam.

At issue on this appeal is the constitutionality of chapter 773 of the Laws of 1989 (as amended by L 1990, ch 17), a special law that prescribes a procedure for determining Staten Islanders’ interest in secession from New York City, and the basis on which they would wish such separation to be accomplished. We conclude that chapter 773 is not an "act in relation to the property, affairs or government” of New York City (NY Const, art IX, §2 [b] [2]) requiring a home rule message under the State Constitution.

Chapter 773 requires that, in the next general election, voters of the Borough of Staten Island, one of New York City’s five boroughs, be asked the following question: "Shall a charter commission to provide for the separation of the borough of Staten Island from the city of New York and for the establishment of the city of Staten Island be created?” If a majority answers yes, a commission composed only of Staten Island residents and legislators will be organized to draft a proposed charter and consider any subject it deems relevant to the organization of a new City of Staten Island. The law further specifies that, within roughly two years, this commission must submit a proposed charter to the Governor, the temporary President of the Senate, the Speaker of the Assembly and the President of the Borough of Staten Island, and must hold public hearings throughout Staten Island for at least six months thereafter.

The charter commission may, in its discretion, then submit to Staten Island voters the question whether to adopt the proposed charter and, if not, whether the commission should continue, in order to redraft a charter proposal. If Staten Island voters answer yes, the charter is "adopted,” and the commission must submit proposed legislation enabling Staten Island to separate from New York City. If they answer no, the commission continues briefly in order to consider an alternative proposed charter for the City of Staten Island; in the event of a second negative vote, the commission is to dissolve.

Chapter 773 further contemplates the appointment of three "advisory committees” with five members each, to study and report on the creation of school districts, civil service rights and retirement benefits, and tax and finance matters. These committees are also charged with responsibility for submitting proposed legislation to implement their recommendations. An additional commission of State legislators from Staten Island is to be organized by the charter commission to apportion any local legislative body established by the proposed charter.

All committees and commissions are to be named without input from the other boroughs of New York City, with a single exception. Appointment of one member of the civil service rights and retirements benefits committee is to be made on the recommendation of the Mayor of the City of New York. Thus, as chapter 773 has been designed and formulated, upon completion of the referenda, hearing and drafting processes, what the Legislature will have is the view of Staten Islanders as to whether they desire separation from New York City, and the basis on which they would see it accomplished.

Significantly, as was made explicit by later amendment to chapter 773, no act or proposal of the various Staten Island committees or commissions can have the force of law. The charter, or alternative charter, for the City of Staten Island can become law only if the Legislature enacts legislation enabling Staten Island to disengage and separate from the City of New York. The law specifically directs that until such time, "the borough of Staten Island shall remain a part of the city of New York.” (L 1990, ch 17.)

Upon New York City’s challenge to the constitutionality of chapter 773, Supreme Court granted the State’s cross motion for summary judgment and declared the special law constitutional, holding that the State has plenary power to change municipal boundaries without home rule constraints (NY Const, art IX, § 2 [a]). The Appellate Division affirmed, agreeing that the State’s plenary power to create and organize local governments makes municipal boundaries a matter of State concern, not subject to home rule. Two concurring Justices upheld the law because it was "advisory only” and therefore, without effect on the property, affairs or government of New York City.

We now affirm, but on different grounds. In particular, we expressly decline to decide as unnecessary and premature whether genuine secession legislation, if ever it were to come before the Legislature, would require a home rule message.

We preface our analysis by noting the familiar proposition that enactments of the Legislature, a co-equal branch of government, are presumed to be constitutional; those who challenge statutes bear a heavy burden of proving unconstitutionality beyond a reasonable doubt (see, e.g., Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489, 495). Appellant, the City of New York, has not satisfied that burden.

The City makes a plausible argument that chapter 773 is not "advisory only.” A State-sponsored referendum merely soliciting the interest of Staten Islanders in secession might, for example, be deemed advisory only, because by definition it has no effect on the property, affairs or government of New York City, and therefore outside the home rule requirement. Chapter 773, however, does more than that. It authorizes the commitment of public funds and other public resources, potentially extending over a period of several years, to conduct studies, hold hearings and submit legislation that would effectuate Staten Island’s separation from the City of New York if the Legislature ever passed such a law and the Governor ever signed it. Chapter 773 is in this respect more than "advisory only,” and is surely ripe for review (compare, Cuomo v Long Is. Light. Co., 71 NY2d 349).

That conclusion does not, however, answer the dispositive question whether the special law is an "act in relation to the property, affairs or government” of New York City requiring a home rule message under article IX, § 2 (b) (2) of the State Constitution. By their very nature, special laws ordinarily will have an effect on the subject locality. However, not every special law in and of itself requires a home rule message, as the effect may be at most incidental, not a direct impact on the property, affairs or government of that entity. "The intent of these provisions of the Constitution was to provide some measure of protection to a city from possible danger of ill-considered interference by the Legislature in its local affairs.” (City of New York v Village of Lawrence, 250 NY 429, 439; see also, Hyman, Home Rule in New York 1941-1965 Retrospect and Prospect, 15 Buffalo L Rev 335, 337-338.)

Here we discern no State interference in New York City property, affairs or government, and we therefore need not reach the next step of determining whether there is any substantial State interest in the matter (see, Adler v Deegan, 251 NY 467, 484 [Cardozo, Ch. J., concurring]). Chapter 773 does not authorize secession; it does not authorize the voters of Staten Island to decide the secession issue; it does not initiate secession, or commit the State to support it; it does not represent any relinquishment by the Legislature of any power it may have with respect to secession; and it in no way circumscribes whatever protections exist in the State Constitution home rule provision with respect to an act formally triggering secession.

Indeed, rather than any direct effect of chapter 773 on the property, affairs or government of New York City, the impact of the law as the City portrays it is either wholly speculative, or simply the anticipated response to Staten Island’s already publicized interest in secession. In the category of speculative, for example, are the City’s references to the loss of population, acreage and investment in Staten Island’s infrastructure, none of which could result from the present legislation. Likewise, any anticipated uncertainties in City planning or financing are not the direct consequence of chapter 773, which commits to no binding law of any sort; Staten Island’s expressed interest in secession after Morris v Board of Estimate (707 F2d 686, affd 489 US 688) itself suggested planning for that contingency even without chapter 773.

Nor does the dissent add any material consideration to the factors relied on by the City (see, dissenting opn, at 489-490). That New York City may choose to incur expense in a desire to track the various Staten Island processes can hardly be deemed the State’s intrusion into New York City’s property, affairs or government; similarly, commission authorization to "request and receive” assistance is not tantamount to license to requisition resources or commandeer City agéncies, and plainly does not constitute "open-ended” or "unbridled” intrusion into City affairs (dissenting opn, at 490).

The City’s equal protection argument is also unavailing. Even in voter classification, a State is not prohibited from recognizing the distinctive interests of the residents of its political subdivisions (see, e.g., Town of Lockport v Citizens for Community Action, 430 US 259, 268-269). The legislative choice to allow Staten Island voters to express their views as to whether, and how, they might wish to separate from New York City — while affording them no unilateral right to do so— is a reasonable classification based on the distinct interest of that subdivision of the State.

Finally, our difference with the dissent may be summarized as follows. First, while fully mindful of the importance of home rule, we are sensitive as well to another fundamental precept of government: that, whether or not we endorse their wisdom, acts of the Legislature are presumptively valid and cannot be overturned unless proved unconstitutional beyond a reasonable doubt. Second, however often repeated, merely saying that chapter 773 "deeply” or "profoundly” intrudes into New York City property, affairs and government does not make it so. The virtual exclusivity of Staten Islanders in the process marks chapter 773 for what it is — not as a procedure aimed at dividing New York City without the voice of its other boroughs but as a procedure that allows Staten Island to explore its publicized interest in secession, stripped of any force without further act of the Legislature.

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

Hancock, Jr., J.

(dissenting). The court today holds that a measure which establishes a detailed process aimed at splitting New York City into two separate cities — while depriving four of its five boroughs from any voice in the process — does not affect its property, affairs or government. I cannot agree.

In concluding that chapter 773* does not violate the home rule provisions of the State Constitution, the court rejects the argument that the legislation can be upheld as merely advisory or preliminary. It does not adopt the rationale of the courts below for upholding the measure — that because the legislation is a matter of State concern, constitutional home rule compliance is unnecessary. Indeed, the court pointedly abstains from addressing that contention.

Instead, it offers as the sole reason for its affirmance the contention that there is no "interference in New York City property, affairs, or government” (majority opn, at 485) — a reason not embraced by the courts below or affirmatively advanced by the parties. But a simple reading of chapter 773 reveals that the process intrudes deeply into city affairs and has a direct and immediate impact on the personnel, finances and administration of the city. For this reason, and because the subject matter of the statute is essentially of local — not State — concern (see, e.g., Wambat Realty Corp. v State of New York, 41 NY2d 490, 494), a home rule message was mandated under NY Constitution, article IX, §2 (b) (2). There was no such message and the legislation, therefore, is invalid.

Realistically, no subject more directly concerns the affairs and government of a city than whether the integrity of its boundaries and of its existing governmental structure should be altered. There can be no question that chapter 773 sets in motion a process that has one purpose: to disengage Staten Island from New York City and establish it as a separate and independent City of Staten Island. Thus, with good reason the court concludes — as did the Appellate Division majority — that the legislation is "more than 'advisory only,’ and is surely ripe for review” (majority opn, at 485). That the voters have not yet approved the referendum does not affect this conclusion. The constitutional invalidity of the referendum — coupled with the inadequacy of a postelection determination of that constitutional issue in preventing the threatened harm — makes the question before us clearly justiciable (see, Matter of Fossella v Dinkins, 66 NY2d 162, 166-167; see also, Matter of Cantrell v Hayduk, 45 NY2d 925, 926; Matter of McCabe v Voorhis, 243 NY 401, 412-413).

The charter commission — the statute’s guiding component— is not a study group charged with investigating and reporting on the advisability of secession; it is the official body created by the Legislature for the purpose of directing the continuing process toward secession. It must support secession, hold hearings, do research, gather information and draft the complex bill that will be necessary to effectuate it. (See, ch 773, § 4 [e], as amended [mandating that within "three months of adoption of the charter by the voters of Staten Island, the commission shall submit * * * proposed legislation enabling the borough of Staten Island to disengage and separate from the city of New York” (emphasis added)].)

All 13 members of the charter commission must come from Staten Island. Each of the five Staten Island legislators, all of whom are on record as favoring the legislation, is automatically a member of the commission. Each legislator is empowered to appoint one member to the commission. The three other commission members — also Staten Island residents — are to be appointed by the Governor, the temporary President of the Senate and the Speaker of the Assembly. The commission members are to be reimbursed by the State for their actual and necessary expenses.

The commission is vested with broad powers and prerogatives for carrying out its function. It may employ and set the compensation for such employees and consultants as it shall require. It is empowered to conduct private hearings, take testimony, subpoena witnesses and require the production of books, papers and records. Significantly, the commission may demand from any State or city department or bureau, commission, office, agency or other instrumentality such facilities, assistance, data and personnel as may be necessary or desirable for the proper execution of its powers and duties (ch 773, § 6 [e]). It must establish advisory committees on the creation of school districts for Staten Island, on civil service rights and retirement benefits for city employees who will become employees of the Staten Island municipal government, and on the various tax and financial problems that will arise.

There can be no doubt that — irrespective of the ultimate possibility of secession — the very pendency of the process and the activities of the commission will have, at least, the following immediate effects:

Uncertainty and Confusion — by creating this secession-aimed legislation, the future makeup of the city’s legislative body, and the configurations of its civil service system, its school system, pension and retirement funds, its entire public debt structure, and its solid waste disposal scheme are put in question. This widespread uncertainty necessarily impairs effective present-day city planning for the future in several governmental areas.

Conscription of Resources and Personnel — from the very beginning of this multiyear process, the city’s resources and personnel are affected. The referendum to poll Staten Island’s interest in secession is to be supervised by the city Board of Election. The Board must prepare the ballots, canvass the results and certify the results to the Senate and Assembly (ch 773, § 2). Although the city’s expenditures are to be reimbursed by the State (§ 3), the city must initially lay out its money, assign its personnel, detail its expenses, and submit them to the State, subject to audit by the Comptroller. Finally and most significantly, the unbridled authorization vested in the commission to "request and receive from any * * * city * * * agency or other instrumentality such facilities, assistance, data and personnel as may be necessary or desirable [to the commission]” (§ 6 [e] [emphasis added]) amounts to an open-ended license for commandeering virtually every agency of city government.

Resultant Costs to the City — that there are direct and indirect costs to the city incident to its compliance with section 6 (e)’s command to assist the charter commission is self-evident. Notably, no provision is made for State reimbursement of these costs. Beyond that, to protect its vital interests, the city — because it is excluded from any participation in the commission’s proceedings — must now create and fund a parallel process in preparation for evaluating and reacting to any Staten Island secession bill emanating from the chapter 773 process.

Once the effect on city affairs, property or government is demonstrated, as it is here, a special act can be passed without a home rule message only where a concern exists "of sufficient importance to the State, transcendent of local or parochial interests” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494, supra). The court’s holding that chapter 773 was properly passed without a home rule message (art IX, § 2 [b] [2]) in the absence of a showing of such State concern contradicts prevailing authority (see, Matter of Town of Islip v Cuomo, 64 NY2d 50, 56-57; Matter of Kelley v McGee, 57 NY2d 522, 538; Wambat Realty Corp. v State of New York, 41 NY2d 490, 494-495, supra; Baldwin v City of Buffalo, 6 NY2d 168, 172-174; New York Steam Corp. v City of New York, 268 NY 137, 143) and ignores the significant enlargement of municipal home rule protections given to municipalities in the new reformatted local governments provisions of article IX, adopted on January 1,1964. (See, Kamhi v Town of Yorktown, 74 NY2d 423, 428-429.)

Without citing to any relevant authority and without addressing the substantial burdens imposed on broad areas of New York City government, the court simply announces that it discerns "no State interference” in city affairs. Significantly, it does not hold that chapter 773 is "of sufficient importance to the State, transcendent of local or parochial interests” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494, supra). Indeed, it never reaches this issue. With no showing of a perceptible State interest, chapter 773 is before us as a measure that is quintessentially local in its effect. Under these circumstances, there can be no question that under governing case law (see, Matter of Town of Islip v Cuomo, supra; Matter of Kelley v McGee, supra; Wambat Realty Corp. v State of New York, supra), a home rule message was mandated by article IX, § 2 (b) (2).

In conclusion, one might well ask: what will "affect” the property, affairs or government of an existing city so as to necessitate home rule compliance, if a statute having the invasive characteristics of chapter 773 does not, even though it establishes a process aimed at the city’s very dissolution? The court’s remarkable holding that such compliance is not called for gives unwelcome credence to the gloom expressed by one commentator for the future of home rule in New York (see, Cole, Constitutional Home Rule in New York: "The Ghost of Home Rule”, 59 St John’s L Rev 713, 749 [1985]). The words of Chief Judge Cardozo — written more than six decades ago— now seem all too prescient: "Home Rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts in applying the new tests shall ignore the new spirit that dictated their adoption. The municipality is to be protected in its autonomy against the inroads of evasion.” (Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72, 76 [emphasis added]; see, Kamhi v Town of Yorktown, 74 NY2d 423, 428, supra; Baldwin v City of Buffalo, 6 NY2d 168, 173, supra).

Chief Judge Wachtler and Judges Simons, Kaye and Bellacosa concur in Per Curiam opinion; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Alexander concurs; Judge Titone taking no part.

Order affirmed, with costs. 
      
      . Citation to the annexation provisions of the State Constitution (NY Const, art IX, § 1 [d]; dissenting opn, at 491) serves only to underscore that were annexation or the actual alteration of boundaries in issue, this would be a different case.
     
      
      . Contrary to the dissent (dissenting opn, at 488), the argument that the legislation is legally immaterial was most assuredly advanced by the State. The fact that the court offers as a sole reason for affirmance that there is no intrusion into New York City property, affairs or government is hardly a criticism: that is the necessary first step in any home rule analysis.
     
      
      . Chapter 773 of the Laws of 1989 was amended by chapter 17 of the Laws of 1990. Unless otherwise noted the statute in its present amended form will be referred to simply as chapter 773.
     
      
      . The Appellate Division majority in affirming the holding of Supreme Court that the measure does not violate article IX, §2 (b) (2) expressly rejected the view of the concurrers that the statute is "purely advisory in nature” (158 AD2d, at 172).
     
      
      . The Assembly memorandum in support of the bill notes the impetus behind the bill was the change in New York City government, which diluted Staten Island’s voice in municipal affairs, resulting from Morris v Board of Estimate (707 F2d 686, affd 489 US 688). Thus the bill was introduced:
      "as one of a series of bills seeking to separate the Borough of Staten Island from the City of New York. All the bills establish the County of Richmond as a New York State county separate and distinct from New York City, with its own local governing unit.”
      (Sponsor’s [Senator Marchi, Assemblywoman Connelly] Mem in support, Bill Jacket, L 1989, ch 773, at 1; see also, Revised Mem in support by Senators Marchi and Connor, Assembly members Connelly, Vitaliano and Straniere, id.).
      
     
      
      
        . The 1964 amendment added a new provision (NY Const, art IX, § 3 [c]) which expressly repudiated the prevailing rule (Dillon’s rule) mandating strict judicial construction of the municipal home rule provision (art IX, § 2 [b] [2]). That amendment also established a "bill of rights for local governments” which included an annexation provision recognizing that the residents of a municipality affected by a boundary change have both a compelling interest in any process by which boundary changes do occur, and a fundamental right to participate in that process (see, NY Const, art IX, § 1 [d]).
     