SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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CHRISTOPHER BURKE, CIERAN CANAVAN, JEAN

CANAVAN, ANTHONY BADILLO, and SHARRON
CLEMONS, individually and on behalf of the
approximately 52,000 signers of a petition filed pursuant to
Sections 37 and 24 of the New York State Municipal Home Index No. 09/110779
Rule Law,
Justice Edward H. Lehner
Petitioners,

- against –

MICHAEL McSWEENEY as City Clerk of the City of

New York and Clerk of the City Council of New York and
the BOARD OF ELECTIONS IN THE CITY OF NEW
YORK,

Respondents.

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RESPONDENT MICHAEL MCSWEENEY’S

REPLY MEMORANDUM OF LAW IN
FURTHER SUPPORT OF HIS MOTION TO
DISMISS THE PETITION

Respondent 1 Michael McSweeney, City Clerk and Clerk of the City Council

(hereinafter, the “Clerk” or “McSweeney”), submits this memorandum of law in further support

of his motion to dismiss the petition and in reply to Petitioners’ Memorandum of Law

(“Petitioners’ Memo”). Petitioners’ Memo fails to overcome the arguments set forth in the

Clerk’s opening papers and, in fact, actually highlights many of the very reasons why the

Petition is defective and, therefore, ineligible for placement on the ballot. The Clerk, through

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The Board of Elections in the City of New York, a respondent herein, takes no position on the
merits of this proceeding.
this memorandum will address the deficiencies in petitioners’ arguments, albeit briefly, so as to

not repeat the arguments set forth in his opening papers.

ARGUMENT

PETITIONERS’ MEMO UNDERSCORES AND

HIGHLIGHTS THE VERY DEFICIENCIES IN
THE PETITION POINTED OUT BY THE
CLERK THAT RENDER IT ILLEGAL

A. 9/11 investigations are not a local matter.

Petitioners’ memo undermines their strained effort to discredit the Clerk’s

argument that a primary purpose of the proposed municipal commission will be to review

national security, military, and intelligence matters, all of which are entrusted to the federal

government. Petitioners’ lengthy recitation of the supposed failings of the federal investigation

into the 9/11 attacks highlights the national thrust of this referendum and the Commission’s

mission (Petitioners’ Memo, pp 3 – 12). Because the thrust of the Petition seeks a

national/international investigation and therefore does not primarily serve a municipal purpose, it

is clear that the proposed law exceeds the intended scope of matters of municipal concern under

section 37 of the MHRL. As a result, because the far-ranging investigation would be improper

and beyond the power of the City, placement on the ballot would result in an unlawful advisory

referendum similar to the one on the Vietnam War that was rejected by the Court in Silberman.

Matter of Silberman v. Katz, 54 Misc.2d 956 (Sup. Ct. N.Y. Co. 1967), aff’d, 28 A.D.2d 992 (1st

Dep’t 1967). Petitioners’ other efforts to discredit the Clerk’s other arguments as to why this

subject is beyond the City’s jurisdiction, most of which seek to distinguish the settled case law

on the theory that they did not concern an event that occurred locally, though having profound

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national and international implications, are equally unavailing for the reasons set forth in the

Clerk’s opening papers.

B. The “financing plan” is not a plan.

Petitioners’ contend that the Clerk’s conclusion that the financing plan is legally

deficient rests upon a single, slender reed – that is, that all of the cases cited by and relied upon

by the Clerk involved public financing, whereas the Petition calls for the exclusion of all public

monies. This distinction, too, is without a difference. The “plan” relies on unspecified donors of

unspecified amounts of money. As set forth at length in the Clerk’s opening papers, the

“financing plan” is just too vague to pass muster. Petitioners emphasize that no public monies

shall be accepted, but do not state what would happen if the Commission were to run out of

money. Moreover, the Petition does not state how much money would have to be raised in order

to constitute the “realization of the full funds specified in our anticipated budget.” Petition, ¶ 7.

This is further exacerbated by the proviso that the “Commission shall have the authority to act up

to a maximum of 5 years from the date of their creation . . . unless delayed by legal or

administrative procedure, in which case the investigation shall continue until matters are

resolved.” Petition, ¶ 6. This proviso essentially allows the Commission to exist for an

undefined period of time, thereby making the ultimate budget indeterminable. In sum, because

there is no ability to determine the ultimate budget required by the proposed Commission, there

is no means of ensuring that any funds raised (if they indeed exist) will be made available in

amounts sufficient for an investigation of uncertain scope that will last for an undefined time,

and the existence of the Commission would undoubtedly compel the City to expend its human

capital and other resources to support it, the Petition’s “financing plan” is insufficient as a matter

of law.

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C. The Commissioners would undoubtedly be public officers.

Petitioners claim that because the Petition does not assert that the Commissioners

would be public officers, they would not be. Petitioners’ Memo, p. 25. Petitioners go far afield

in yet another vain attempt to distinguish the long line of cases cited by and relied upon by the

Clerk in rendering his opinion. These cases show that the “public officer” designation attaches

by operation of law when an official exercises functions like those proposed here for the

Commission. Petitioners seek to distinguish these cases by arguing that because the facts were

different, the legal principles are not relevant. For example, petitioners seek to distinguish the

case of Mayor v. Council on the grounds that the court there determined that the law in question

impaired the Mayor’s authority and was therefore a nullity. Petitioners’ Memo, p. 26.

Petitioners miss the point. The impairment arose because the local law there sought to deny the

Mayor the authority to appoint the members of the proposed “Independent Police Investigation

and Audit Board,” whose members would be public officers by virtue of the fact that they could

exercise certain sovereign powers, including that to issue subpoenae. Similar is In re Christey v.

Cochrane, 211 N.Y. 333 (1914), in which the court there determined that the auditor of the City

of Buffalo was a public officer because he could, among other things, issue subpoenae. Id. at

340-42, 344-45. Petitioners contend that Christey was concerned with the Veterans Civil Service

Law, not with whether or not a municipal employee was a public officer. Again, petitioners

completely misread the import of the court’s holding in Christey. The court there determined

that the Auditor was an officer, not a subordinate employee, and therefore the preference

contained in the Veterans Civil Service Law did not apply. Id. Petitioners’ remaining arguments

that the members of the proposed Commission would not be public officers are similarly flawed.

Following from the inescapable conclusion that the Commissioners would be

public officers is the principle the Commissioners would have to be either appointed or elected

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and reside within the City itself. Because the Petition provides for the direct naming of some of

the proposed Commissioners and grants them the authority to name the remaining and

replacement Commissioners, who would be public officers, it violates Article IX(1)(b) of the

state Constitution and therefore may not stand. Similarly, a local law may not authorize a public

officer to reside outside of the City, as such would conflict with superior law, that is, the Public

Officers Law.

D. The plain language of the Petition conflicts with state law.

Petitioners strain to “interpret” the various provisions of the Petition so that they

do not conflict with clear state statutory mandates, even going so far as to invite this Court to

rewrite various provisions of the Petition in an effort to remove the clear conflicts with state law.

Petitioners’ Memo, pp. 35, 37. This, the court may not do. In the event the Court were to

rewrite the Petition, it would no longer reflect the views of the individuals who signed it and

there can be no assurance that they would have signed it as petitioners propose rewriting it.

Petitioners also try to distance themselves from the actual language of the

Petition, including language that would grant the Commission the power to seek indictments.

Petitioners’ Memo, p. 37. Petitioners try to harmonize this language with the County Law by

suggesting that what “seek indictment” really means is to ask the local district attorney to make a

presentation to a grand jury. Petitioners’ attempt to harmonize this clear conflict strains credulity

and places them on the horns of an inescapable dilemma: either the Petition means what it says,

or the voters that signed it were misled to believe that the Commission would have significant

powers and duties that it would not have. Their remaining arguments are similarly strained and

without merit.

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E. The subject matter of the Petition is not a proper amendment to the Charter.

Petitioners suggest that because section 37 of the Municipal Home Rule Law

authorizes the amendment of a charter by voter initiative, “however extensively,” there is no

limitation whatsoever as to what matters may be the subject of an initiative. Petitioners’ Memo,

p. 41. Petitioners are wrong. Petitioners, apparently recognizing that the Petition does not relate,

reasonably or otherwise, to any provision of the City Charter, attempt to claim that it relates to

and would amend provisions concerning the Department of Investigation as the Commission

would be a “temporary adjunct” thereto. Petitioners’ Memo, p. 43. This argument borders on

the absurd as the Commission, by its very terms, is to be independent of other City agencies and

shall neither “request or accept” public funds.

Moreover, petitioners’ argument overlooks the fact that the City’s Charter is a

short-form Charter designed to set out the structure of City government. Court of this state have

interpreted MHRL § 37 to require that an amendment to the New York City Charter be an

amendment in substance – that is, be consistent with the Charter’s structure, which provides a

short-form framework for the operation and functions of City government, while detailed

programs and temporary studies are relegated to the Administrative Code. While the City

Charter includes an agency to conduct investigations, it does not specify particular occurrences

as proper subjects for such inquiries.

Petitioner also contends that all charters/constitutions are subject to amendment

by “inclusion of a provision which in whole or part goes beyond the scope of the existing

provisions.” Petitioners’ Memo, p. 45. In support of this argument, they rely on the United

States Constitution. Contrary to petitioners’ argument, Article V of the United States

Constitution sets forth the process by which that document could be amended. Here, the state

Municipal Home Rule Law sets forth the limits by which a local charter may be amended by

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voter initiative. Because direct democracy is not the norm in New York, the ability to modify

the charter through a voter initiative is quite limited and, as set forth in section 37 of the MHRL,

such initiatives must either amend the charter or propose a new one. Mun. Home Rule L., § 37.

As such, petitioners’ contention is simply without merit.

F. The faulty provisions of the Petition are not subject to severance.

Petitioners argue that the drafters of the Petition would want some part of the

proposal to go to the electorate, whatever must be exscinded should be and allow the remainder

to go to the voters. First, respondent notes, even if a petition (as opposed to ordinary legislation)

could ever be severed in this manner, petitioners are wrong and that the relevant question is:

“would the persons who signed the Petition have signed it with all of the language exscinded?”

While that answer is unknowable, it is worth noting that virtually all of the substantive

provisions, including the power to issue subpoenae and the improper wide-ranging nature of the

investigation, would have to be exscinded, and the defective financial plan and improper

amendment of the Charter cannot in any event be overcome.

Petitioners rely heavily on National Advertising Co. v. Niagara, 942 F.2d 145 (2d

Cir. 1991), to support their claim for severability. The Second Circuit therein stated:

We could close our eyes to these and other

problems of adjusting Niagara’s ordinance to the
demands of the Constitution and give full effect to
the severance clause of the ordinance. Were we
convinced that the remaining structure was capable
of being administered in a fair, coherent, and
equitable manner, we would do so. We are not so
convinced. When we consider how the statute will
function when “the knife is laid to the branch
instead of at the roots,” we conclude that severance
of the invalid sections would create a statute that is
confusing and unworkable. See Alpha Portland,
230 N.Y. at 60, 129 N.E. at 207. Nor do we believe

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 that it is proper for us to restore some provisions
deleted by the district court and to rewrite others so
as to make possible the type of administration that
could resolve satisfactorily the problems the Town
of Niagara now confronts. In short, it is clear to us
that the ordinance must be redrafted and that the
Town of Niagara, not this court, should do it.

942 F.2d at 151. As in Niagara, in order to craft a workable statute out of the Petition’s

framework, the Court would have to strike many provisions of the Petition and significantly

rewrite others. This is not for the Court to do. To the extent that the Petition must be redrafted

(if this is even possible within the law of this state), the Petitioners should do so and then go back

to the voters with the new language in a new petition.

Severance is made even more difficult in that this proposal came by way of a

voter initiative. As held in Matter of Noonan v. O'Leary, 206 Misc. 175 (Sup. Ct. Monroe Cty.

1954), aff’d 284 A.D. 646 (4th Dep’t 1954):

This is not a situation where the invalid portion can

be stricken down and the valid portions, if any, of
the proposed local law preserved because under
section 19-a [predecessor to MHRL § 37] the
proposed local law as “set forth in full” in the
petition must be adopted or submitted to the electors
“without change.” A portion of the proposed local
law, therefore, being invalid, renders the entire
proposal, of which it is a part, invalid.

Id. at 177; see also, Schrader v. Cuevas, 179 Misc. 2d 11 at 20, 686 N.Y.S.2d 251, aff’d 254

A.D.2d 128, 679 N.Y.S.2d 290 (1st Dep’t 1998).

In their final, last-gasp effort to save some portion of the Petition, petitioners ask

this Court to rewrite the Petition in large measure in an attempt to salvage it, thereby turning it

into a new document altogether. This request includes altering the residency requirement,

exscinding the language that conflicts with FOIL and the Open Meetings Law, and to change the

language concerning the Commission being able to “seek indictments” to recommend to the

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relevant prosecutorial authorities that they seek indictments. Petitioners fail to mention how the

Court could solve the intractable problem concerning the selection of Commissioners. The

failings of the Petition, as recognized by petitioners, being as great as they are, makes it clear that

severance is not a workable solution to save the Petition (if severance were proper with regard to

a petition, which it ordinarily is not).

CONCLUSION

As set forth herein and in the Clerk’s opening papers, because the Petition does

not comply with “all requirements of law” as it must pursuant to Section 37 of the Municipal

Home Rule Law, and its deficiencies are so great that it can not be saved by its severability

clause, regardless of the number of valid signatures submitted in support of the Petition,

respondent Michael McSweeney respectfully requests that the Court enter an order declaring the

Petition invalid and therefore ineligible for placement on the ballot and for such other and further

relief as is just and proper.

Dated: New York, New York

September 24, 2009

MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attorney for the Respondents
100 Church Street, Room 2-126
New York, New York 10007
(212) 788-0849

By: s/Stephen Kitzinger

Stephen Kitzinger
Assistant Corporation Counsel