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The Legality of Staten Island's Attempt to Secede from New York City Jeffrey Underweiser

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The Legality of Staten Island's Attempt to Secede from New York City Jeffrey Underweiser Fordham Urban Law Journal Volume 19 | Number 1 Article 5 1991 The Legality of Staten Island's Attempt to Secede from New York City Jeffrey Underweiser Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the State and Local Government Law Commons Recommended Citation Jeffrey Underweiser, The Legality of Staten Island's Attempt to Secede from New York City, 19 Fordham Urb. L.J. 147 (1991). Available at: https://ir.lawnet.fordham.edu/ulj/vol19/iss1/5 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE LEGALITY OF STATEN ISLAND'S ATTEMPT TO SECEDE FROM NEW YORK CITY I. Introduction Nearly a century ago, in 1898, the City of New York was created in its present form.1 The newly formed City included four counties: New York, Kings, Queens, and Richmond (Staten Island). The Greater New York Charter of 1901 reorganized the City government and altered the composition of the Board of Estimate. The Board of Estimate, the governing City body that controlled all expenditures, had eight members, with each Borough President having one vote re- gardless of population.' In 1981, residents of the most populous bor- ough, Brooklyn, filed a lawsuit challenging the constitutionality of the Board's representation. The United States Supreme Court ruled that the Board's voting scheme was unconstitutional because it violated the principle of one person, one vote.3 The Board of Estimate was abolished as of September 1, 1990, with the majority of its power being transferred to the City Council. Un- like the Board of Estimate, representation on the City Council is ap- portioned according to the City's population. As a direct result of the transfer, Staten Island sustained a severe loss of political power within the City. Rather than accept this new situation, Staten Island state legislators succeeded in having Chapter 773 of the Laws of 1989 (as amended by Chapter 17 of the Laws of 1990) passed by the State Legislature. Chapter 773 provides a process for the borough of Staten Island to secede from New York City, without the residents of the rest of the City having a right to affect the process. Pursuant to Chap- ter 773, Staten Islanders conducted a vote in November of 1990, ask- ing residents of Staten Island if they wanted to form a commission to create a city charter.4 As a result of an affirmative vote, Staten Island- ers formed a commission to create a charter that will eventually be 1. Staten Island and the other four boroughs were joined to form the greater City of New York by Chapter 488 of the Laws of New York of 1896, and Chapter 378 of the Laws of New York of 1897. 2. Record on Appeal at 49-50, City of New York v. State of New York, 76 N.Y.2d 479, 562 N.E.2d 118, 561 N.Y.S.2d 154 (1990). 3. Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1989). 4. Staten Islanders voted overwhelmingly to continue the process for secession: 82 percent of the voters were in favor of taking the next step towards secession, while 18 percent were against it. Alessandra Stanley, Staten Island Votes a Resounding Yes on Taking Step Towards Secession, N.Y. TIMES, Nov. 7, 1990, at B7. FORDHAM URBAN LAW JOURNAL [Vol. XIX presented to the residents of Staten Island for a second vote. If the people of Staten Island ratify the secession plan, then the plan will go before the State Legislature for final approval.5 The possible secession of a borough from the City of New York, over the strenuous objections of the City, implicates two critical fed- eral and state constitutional issues: the Equal Protection Clauses of both constitutions, and the Home Rule Doctrine of the state constitu- tion. Three New York State courts recently ruled that Chapter 773 did not violate either of these provisions.6 The two lower courts each ruled that Chapter 773 was a valid law, and further that the State Legislature had the power to dismember New York City at its discre- tion. In following the concurring opinion of the appellate division, the New York State Court of Appeals affirmed on different grounds.7 The court ruled that Chapter 773 was advisory because the Legisla- ture's permission was needed for a final approval of secession.8 There- fore, the court of appeals declined to comment on whether the Legislature could validly allow Staten Islanders to secede over the ob- jections of the City. This Note argues that according to judicial interpretations of the state and federal constitutions, Staten Island should be allowed to se- cede from New York City regardless of the City's position. Part II of this Note analyzes the background history leading up to this case. The section examines the formation of the City, Staten Island's rea- sons for seceding, the positions of the City and State, and the state courts' decisions concerning Chapter 773. Part III analyzes the issue of equal protection under the Fourteenth Amendment of the United States Constitution and Article I Section 11 of the New York State Constitution. Federal case law on the sub- ject does not refer to any secession cases, but instead points to similar annexation and voting rights cases. All of these cases favor a very strong presumption of constitutionality regarding the state laws, and support the validity of Chapter 773 or any similar law. Part IV discusses the more delicate Home Rule Doctrine of the New York State Constitution. While the concept of Home Rule has existed in the state constitution for almost 100 years, it has almost never invalidated a state law due to a lack of consent by the localities. 5. 1989 N.Y. Laws 773 (amended 1990 N.Y. Laws 17). 6. City of New York v. State of New York, 146 Misc. 2d 488, 556 N.Y.S.2d 823; 158 A.D.2d 169, 557 N.Y.S.2d 914; 76 N.Y.2d 479, 562 N.E.2d 118, 561 N.Y.S.2d 154 (1990). 7. City of New York v. State of New York, 76 N.Y.2d 479, 562 N.E.2d 118, 561 N.Y.S.2d 154 (1990). 8. Id. at 484, 562 N.E.2d at 120, 561 N.Y.S.2d at 156. 1991] STA TEN ISLAND SECESSION Regardless of the numerous changes in the constitution, supposedly increasing the strength of Home Rule, the state courts have consist- ently interpreted the doctrine very narrowly. These rulings lead to the conclusion that the doctrine would not stand in the way of Staten Island's secession. Yet, if the State Legislature can divide a city at its discretion, then it seems that the doctrine of Home Rule no longer exists. Part V concludes that based upon federal and state case law, Staten Island can legally secede from New York City as long as the State Legislature supports the secession. It would take a clear deviation of case law on either the state or federal level to prevent the secession. The Supreme Court's decisions regarding the Equal Protection Clause strongly suggest that the clause would pose no barrier to secession. Rulings by the courts of New York State also support a similar result concerning the Home Rule issue. Such a decision, though, would lead to the unwanted result of a state court's de facto nullification of an article to the state constitution.9 II. Background A. The Creation of New York City "'The sun will rise this morning upon the greatest experiment in municipal government that the world has ever known-the enlarged city.' "1o On January 1, 1898, after a noisy and exuberant New Year's Eve celebration, the greater New York that we know today was formed.1 The consolidation, though, had taken eight years of plan- ning. The movement for a greater New York began in 1890, when the State Legislature passed, and Governor David B. Hill signed, an act which created a commission to investigate the feasibility of consoli- dating the municipalities located in or. near the harbor of New York.I2 Based upon the commission's support of unification, the Legislature in 1894 passed a bill which allowed the citizens of all the affected areas to vote in an advisory referendum on the issue of consolida- tion. a All four counties, New York (which then included the Bronx), 9. The overall risk to New York City is even greater than the possible loss of Staten Island. Civic leaders in Queens, the City's second most populous borough, are also con- sidering secession from New York City. Joe Queen, Civic Leaders Mull Boro Secession Bid, NEWSDAY, Oct. 13, 1991, at 2 (Queens ed.). 10. John A. Krout, Framing the Charter, in THE GREATER CITY NEW YORK, 1898- 1948, 41 (Allan Nevins and John A. Krout eds., 1948) (quoting NEW YORK TRIBUNE, Jan. 1, 1898). 11. Id. 12. Id. at 47. 13. Id. at 48. The referendum included language informing the voters that "Your FORDHAM URBAN LAW JOURNAL [Vol. XIX Kings (Brooklyn), Queens and Richmond (Staten Island), voted for consolidation. Specifically, Staten Islanders voted overwhelmingly for unification by a vote of 5,531 to 1,505.11 At the request of recently elected Governor Levi P.
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