The following is the complete text of the Shelter Reform Action Committee's Memorandum of Law seeking an order to put the Animal Welfare and Shelter Reform initiative on the November 1997 ballot.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of JULIE VAN NESS individually
and on behalf of all signers of a petition filed pursuant to Section 40
of the New York City Charter, and JULIE VAN NESS as Treasurer of SHELTER
REFORM ACTION COMMITTEE, an unincorporated association,
Petitioners,
- against -
CARLOS CUEVAS, as City Clerk of the City of New York,
and the BOARD OF ELECTIONS OF THE CITY OF NEW YORK,
Respondents,
For an Order pursuant to Article 16 of the Election Law, Article 78 of the Civil Practice Law and Rules, and 42 U.S.C § 1983, inter alia, declaring valid the initiative petition submitted by Petitioners.
Index No. 116570/97
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MEMORANDUM OF LAW IN SUPPORT OF
PETITIONERS VERIFIED REQUEST
FOR EMERGENCY RELIEF
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TABLE OF CONTENTS
PRELIMINARY STATEMENT - PAGE 2
BACKGROUND - PAGE 9
ARGUMENT - PAGE 13
I. Respondents' Claim That Less Than 50,000 Signatures are Valid is False, as Their Own Worksheets Reveal / PAGE 13
II. Nothing in Section 40 or the Election Law Gives the Clerk or the Board of Elections Authority Unilaterally to Refuse to Certify the Petition, Except for Facial Deficiencies / PAGE 17
III. The Clerk's Actions Deprive Petitioners of Their Rights to Free Speech and Due Process Under the Federal and New York State Constitutions / PAGE 22
A. The Right to Political Speech Conferred Under Section 40 of the New York City Charter Must Be Dispensed in a Manner Consistent With the Free Speech Protections of the United States Constitution / PAGE 22
B. The Clerk's Effort to Censor Petitioners' Access to the Ballot, Without Providing a Mechanism for Prompt Judicial Review, Violates Petitionersí First Amendment and Due Process Rights / PAGE 26
C. Unilateral Censorship by the Clerk Would Violate the Protections of Free Speech and Due Process Found in the New York State Constitution / PAGE 30
IV. The Subject Matter of the Proposed Amendment Falls Squarely Within the Language and Scope of Section 40 of the Charter / PAGE 31
A. The Proposed Amendment is Appropriate Under Section 40 / PAGE 31
B. The Clerkís ìSubject Matterî Objections are Specious / PAGE 34
V. The Court Should Require Respondents to Place the Proposed Amendment on the Ballot Pending Resolution of this Dispute / PAGE 36
VI. Petitioners are Entitled to Attorneys' Fees Pursuant to 42 U.S.C. 1988 / PAGE 38
CONCLUSION / PAGE 40
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Petitioner Julie Van Ness, individually and on behalf of all signers of a petition filed pursuant to Section 40 of the New York City Charter, and as treasurer of the Shelter Reform Action Committee (collectively, the "petitioners"), respectfully submits this memorandum of law in support of her Verified Petition for Emergency Relief under Article 16 of the Election Law, Article 78 of the Civil Practice Law and Rules, Section 40 of the New York City Charter, and 42 U.S.C. § 1983.
PRELIMINARY STATEMENT
The New York City Charter (the "Charter") provides a mechanism for amendment by popular initiative where (1) at least 50,000 qualified electors of the City file with the City Clerk a petition in favor of the amendment; and (2) the proposed amendment, inter alia, "creat[es] a new office or offices." New York City Charter § 40(2)(b)-(c)(1) (hereinafter "NYCCî).
On September 2, 1997, petitioners ó pursuant to Section 40 of the Charter ó filed with respondent Cuevas (the "Clerkî) a proposed charter amendment supported by 75,214 signatures. The proposed amendment would establish a new Commissioner of Animal Affairs, and an associated city Department of Animal Affairs. The signatures on the petition are true, valid and presented in accordance with the relevant provisions of the Election Law. Van Ness Aff. 15; N.Y. Elec. Law §§ 6-130, 6-132, 6-134 (McKinney 1997); Petitionersí Appendix, Tab B (for sample of petition pages).
Nevertheless, by letter dated September 12, 1997, the Clerk refused to certify the petition, taking the position that (1) only 41,736 signatures were valid (thereby disallowing 33,478 signatures); and (2) the subject matter of the proposed amendment was inappropriate for an initiative under Section 40. (App. Tab A). Although acknowledging that Section 40 permits proposals for "basic structural change to City government,î the Clerk -- without providing any specifics -- wrote that the proposed amendment nevertheless was defective on the grounds that (1) it "represents a set of detailed administrative and programmatic requirements that . . . may [not] be initiated under Chapter 40;" (2) it "proposes new mandates, not currently found in local or State law, requiring the expenditure of City monies;" and (3) it "purports to confer upon the proposed new agency powers that limit certain authority exercised by the Mayor and the Cityís Department of Health under State law." (App. Tab A). As set forth below, the Clerkís claims are without basis, and the petitioners urgently require expedited relief, for at least the following reasons:
First, respondents' assertion that over 33,000 signatures are invalid is false, as their own "worksheets" reveal. In the early evening of last Friday, September 12, respondents turned over to petitioners four boxes of "worksheetsî purporting to reflect the objections, and the bases therefore, for each contested signature. Petitioners spent over two hundred person-hours this weekend reviewing this material, and determined that in fact the Board only objected to 21,557 signatures, thus leaving 53,304 uncontested -- and therefore presumptively valid -- signatures, well above the 50,000 minimum. The Boardís mathematical tabulation of the signatures actually questioned, therefore, was grossly in error. This alone compels an immediate finding that petitioners have secured the requisite number of signatures.
Moreover, despite the fact that the Board refused petitioners access to the voter registration records over the weekend, petitioners were able to determine that, with respect to at least eight subscribing witnesses, the Board wrongly contended that the individuals were not registered. As the affidavits submitted herewith reveal, however, each of these witnesses in fact are registered voters, thus reinstating about 3,500 signatures gathered by these subscribing witnesses. (App. Tabs S, U-Z, AA). In addition to the above-noted errors, the "worksheetsî are replete with mistabulations and other errors and omissions, as described more fully below.
Indeed, the errors that permeate the "worksheetsî should lead the Court to invalidate the challenge in toto. The respondents -- each of which has a responsibility to maintain the public trust -- should not be permitted to produce such slipshod work without fear of consequences. Indeed, this is not the first time the respondents have initially purported to invalidate thousands of petition signatures in ballot initiative situations, only later to admit their inability to substantiate their claims. Just last year Judge Shainswit ordered respondents precluded from challenging petition signatures (in a Section 40 case) when they could not produce proof of their claim that thousands of signatures were invalid. Likewise, respondents were forced to abandon initial claims of signature invalidity in at least two other reported cases. (See cases cited in Section I, infra). One can only wonder whether respondents simply are incompetent or hope to overwhelm ballot initiative proponents with tens of thousands of frivolous "objections.î
Whatever their motivation may be, the Court immediately should order respondents precluded from contesting the validity of the signatures in the instant petition, and the Court should issue an order declaring that petitioners have secured the requisite number of valid signatures.
If the Court elects not to grant petitioners immediate relief on the signatures, at a minimum it should order the Board to grant petitioners access to both the computerized and paper voter registration records on a seven day per week basis (until their review is completed), Monday through Friday until at least 9:00 p.m., and Saturday and Sunday until at least 7:00 p.m. Such relief is routinely granted in such circumstances, and is of particular importance here because the Board is required by law to distribute the first of the absentee ballots -- those directed to military personnel -- on October 3, less than three weeks from now. N.Y. Elec. Law § 10-108 (McKinney 1997).
Second, the Clerk has no authority to evaluate the signatures on a substantive basis (absent an objection by a third party), or unilaterally to censor the subject-matter of the initiative, both of which it seeks to do here. The only authority granted the Clerk under Section 40 is that the Clerk is "authorizedî to receive objections advanced by third parties. Section 40 gives third parties the right to file objections with the City Clerk, and requires that such objections be resolved by the Supreme Court. The Clerk thus is accorded a purely ministerial role in handling Section 40 petitions.
Section 40 also states that the signatures supporting an initiative "shall be authenticated in the manner provided by the Election Law for the authentication of designating petitions.î NYCC § 40(2)(c)(1). But the Election Law accords neither the Clerk nor the Board of Elections authority to conduct a sua sponte review of anything other than the facial validity of signatures in designating petitions (e.g., proper cover sheets, forms, etc.). Rather -- as the Boardís own rules confirm -- the Election Law contemplates that the Board will sit as an administrative tribunal to assess the merits of objections submitted by third parties. No provision of the Election Law gives the Clerk or the Board authority to go beyond the face of the petition, as it has done here, absent third party objection. For example, the Board is prohibited from evaluating claims of fraud or forgery -- such inquiries being better left to the courts.
This logic applies with equal if not greater force in the context of evaluating the subject matter of Section 40 petitions. Such an exercise -- essentially one of statutory interpretation and application - is much more appropriate for the courts. This is especially true here because the Clerk faces an inherent conflict. Section 40, to a large extent, was created to give the citizens of New York an opportunity to bypass entrenched political interests, and make changes to the structure of city government directly. To allow a representative of those entrenched political interests to decide which proposed initiatives are "appropriateî from a subject matter perspective is akin to leaving the fox in charge of the henhouse. Not surprisingly, only the "entrenched political interestsî have objected here, not true third parties.
Third, the Clerkís refusal to certify the initiative under these circumstances constitutes an impermissible prior restraint, which violates the rights of free speech and due process guaranteed by the Federal Constitution as well as the New York State Constitution. Section 40 of the Charter accords all citizens of New York City the right to express themselves politically through charter amendment initiatives; having accorded this right to its citizens, the City is obligated to do so in a manner consistent with the Federal and State Constitutions. By refusing to certify the initiative, the Clerk, without authorization, has set himself up as a censor, and has taken no steps to seek judicial review of his unilateral decision regarding the "appropriatenessî of this initiativeís subject matter. But such unilateral governmental action is offensive to the Constitutions of the United States and this State, under well-settled authority. Accordingly, the Clerk should be ordered to cease and desist his unconstitutional prior restraint.
Fourth, there is no credible argument that the proposed amendment falls outside the subject-matter scope of Section 40. As noted, Section 40 specifically permits amendments "creating a new office or offices.î NYCC § 40(2)(b). The proposed amendment falls squarely within this provision, creating a new city office: Commissioner of Animal Affairs. The Commissioner of Animal Affairs would assume responsibility -- currently held by the Commissioner of Health -- for implementing and maintaining the cityís animal control and shelter system, facilitating dog and horse licensing and other related activities. The proposed amendment is consistent with both the legislative history and the case law concerning the proper scope of Section 40.
Moreover, the Clerkís vaguely stated "objectionsî to the subject matter of the proposed amendment are specious (to the extent they are comprehensible at all), for at least the following reasons. As an initial matter, far from setting forth "a set of detailed administrative and programmatic requirements,î the proposed amendment merely sets up an office and department with a "top-lineî mandate indistinguishable in detail or focus from the mandates found in the Charter for other City departments. Nor does the proposed amendment propose "new mandatesî as the city suggests; instead it merely carries out the mandate embodied in the law of this state, and long ago delegated to the City, to "maintain a shelter or other facility for lost, strayed and homeless animals,î to "issue licenses and renewals,î and, perhaps most importantly, to "prescribe standards . . . for the humane treatment of animals impounded [by the City].î Lost and Strayed Animals Act, ch. 115, N.Y. Consol. Laws of 1894 §§ 8, 10.
Further, there is no prohibition under Section 40 against amendment proposals that, if enacted, would require the expenditure of "City monies,î as the Clerk appears to suggest. Indeed, such a requirement would emasculate Section 40, for it is hard to imagine an amendment that would bring "basic structural changeî to a City government, but would not require the expenditure of at least some City monies. (It should be noted, however, that petitioners do not expect that the proposed amendment will require the expenditure of substantial additional City monies, because the City already funds animal management activities on behalf of the Department of Health). Finally, the proposed amendment hardly can be said to "limitî authority exercised by the Mayor; it merely transfers power that now resides primarily in the Department of Health.
In short, as the Clerk apparently sees it, Section 40 permits only proposals that (1) are broad enough to constitute a "basic structural changeî to the city government; (2) but do not require the expenditure of City monies; and (3) do not "limitî the powers of the mayor or any existing city agency. Such an absurdly narrow construction of Section 40 would quite obviously eviscerate the provision, and therefore cannot be sustained.
Thus, the Clerk should be ordered to take all appropriate steps to place the proposed amendment on the ballot of the next general City election, scheduled for NovemberÝ4, 1997.
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In the alternative, if the Court is not prepared immediately to order respondents to certify the petition for all of the reasons stated above, respondents should be ordered to place the proposed initiative on the ballot -- including any absentee ballots -- pending the final resolution of any asserted objections. Such interim relief is necessary to prevent petitionersí access to this yearís ballot from being lost forever, and has been granted by numerous courts in similar circumstances. E.g., Berg v. City of New York, 97 F.3d 689 (2d Cir. 1996).
BACKGROUND
The Commissioner of Health currently has responsibility for the management and care of animals in the City of New York -- including oversight of the cityís animal shelter system. From 1977 to 1994, the City, through the Department of Health, secured animal-control services -- including the operation of the cityís various animal-control shelters -- through a contract with the American Society for the Prevention of Cruelty to Animals ("ASPCAî). 1997 Staff Report, Dying For Homes: Animal Care and Control in New York City, 1 (hereinafter "Staff Reportî) (App. Tab D). As a result of the ASPCAís 1993 announcement that it would no longer provide animal care and control services to the City, the Department of Health entered into a contract with an entity called the Center for Animal Care and Control ("CACCî) -- a not-for-profit corporation formed by the city specifically to provide animal control services for the city. Staff Report at 2-4. (App. Tab D). (See Mayorís Dec. 9, 1997 Press Release, App. Tab J; Staff Report at 4, App. Tab D; CACC Certificate of Incorporation, App. Tab E). The contract, effective SeptemberÝ1, 1994, expires December 31, 1997. Staff Report at 4 (App. Tab D).
The seven-member Board of Directors of the CACC includes as ex officio members the Commissioner of Health, the Commissioner of Sanitation, and the Police Departmentís Deputy Commissioner for Community Affairs; the remaining four members are appointed by the Mayor. Id.
Although, as noted, the animal control function in the city largely is overseen by the Department of Health, the Departmentís primary responsibility is to safeguard human health. NYCC § 556. Petitioners believe that the Department of Health has its hands full dealing with the multiplicity of issues more directly pertaining to human health, and that a separate city office (and associated department) should be established to be responsible for the humane and responsible management of animals in the city. Ver. Pet., 9. (Show Cause Order, Tab 1).
Petitioners also believe that CACCís management of the cityís animal-control system (since 1994) has been inadequate, and in some instances inhumane. Ver. Pet., 10. (Show Cause Order, Tab 1). For example, in June of this year, the staff of the City Council Committee on Contracts, after an extensive investigation of the CACCís activities, made the following findings, among others:
ï the cityís shelter facilities suffer from major structural problems such as "puddles of water in hallways and rooms, leaking pipes, chipping paint, flies, excessive noise, water damage, an unreliable disinfectant delivery system, and two-tier cages.î Staff Report at 40 (App. Tab D).
ï shelter facilities suffer from blockages in the plumbing system [causing] floor drains to back up, inundating occupied animal wards, resulting in unsanitary conditions. Id. at 41.
ï the shelter facilities are poorly maintained, with empty water bowls, feces and urine in cages, and a lack of matting in cages. Id. at 42.
ï the CACC has poor public and community relations and has failed to adequately inform the public and other City agencies of its services, locations, hours of operation and telephone numbers. Id. at 43.
ï the CACC has a poor adoption rate. Id. at 31.
ï the CACC has failed to implement a comprehensive and effective spay/neuter program. In violation of the contract between the City and the CACC, the CACC releases unspayed/unneutered animals to the public. Id. at 24.
ï the former Executive Director of the CACC (who resigned in February, 1997 ) had no shelter management experience; the CACC has not hired a new Director. Id. at 11.
ï the CACC has failed to implement effective health and grooming protocols. Id. at 29.
ï animals adopted from the CACC suffered from illnesses such as parvo virus, heartworm, and diarrhea as well as severe upper respiratory infection and distemper. Id. at 33.
Petitioners also believe that these problems stem from a structural deficiency in the city government as it relates to animals. Accordingly, petitioner Shelter Reform Action Committee ("SRACî) developed the proposed City Charter amendment for submission pursuant to Section 40 of the Charter. The proposed amendment would establish a new Commissioner of Animal Affairs (and associated Department of Animal Affairs), and would invest it with much of the authority over animal-related issues currently held by the Commissioner (and Department) of Health. (App. Tab C). For example, according to the proposal, the Commissioner of Animal Affairs would have the following powers, inter alia:
. . . to care for lost, stray and injured animals, and implement and maintain an animal control operation and shelter system, facilitate dog and horse licensing, promote humane education, and, except as otherwise provided by law, perform all those functions and operations that relate to the affairs and welfare of animals.
1997 Animal Welfare & Shelter Reform Initiative (App. Tab C).
Between May 5, 1997 and September 1, 1997, representatives of the SRAC secured 75,214 signatures supporting placement of the proposed amendment on the ballot for the upcoming November, 1997 general election. Ver. Pet., 14-15 (Show Cause Order, TabÝ1). Consistent with the requirements of Section 40, petitioners filed the proposed amendment, together with the supporting signatures, with the Clerk on September 2, 1997. NYCC § 40(2)(c)(1). In addition to the widespread support for this initiative reflected by the number of signatures obtained, the amendment has been endorsed by the American Society for the Prevention of Cruelty to Animals (Press Release, App. Tab F ), and by City Council Member Jerome OíDonovan (Newsletter, App. Tab G).
By letter dated September 12, 1997, the Clerk indicated that he would not certify the proposal for inclusion on the ballot for the "reasons" specified earlier. (App. TabÝA). As noted above, the September 12 letter provided no detail as to the alleged basis for the disallowance of the signatures, nor did it provide any specificity as to the portions of the proposal that it contended were inappropriate from a subject-matter perspective.
Immediately upon learning of the Clerkís position on September 12 (last Friday), petitioners requested a report, in form and substance consistent with the Boardís rules concerning objections to designating petitions (App. Tab I), setting forth the bases for the alleged invalidity of each contested signature, together with all supporting material. Milne Aff. 5 (Show Cause Order, Tab 2). Petitioners also requested weekend and after-hours access to the voter registration records (both computerized and paper) maintained by the Board. At about 7:00 p.m. on September 12, the Board produced thousands of pages of so-called "worksheetsî purporting to reflect its analysis of the signatures and purportedly containing notations as to those it contended were invalid. Representatives of the Board represented that those "worksheetsî were everything they had concerning purportedly invalid signatures. Id. at 8. Petitioners devoted over two hundred person hours over the weekend reviewing the "worksheets,î revealing massive systematic errors and overall slipshod work, as discussed further herein. Petitioners were unable to conduct a check of the voting records over the weekend because the City refused to give petitioners access to its offices, unless petitioners secured a court order requiring the Board to do so. Id. at 22.
In light of the pressing time constraints (with the military ballots due to be circulated October 3) and the need to gain access to the voting records on an extended-hour basis, petitioners promptly commenced this action by way of Order to Show Cause, pursuant to §Ý16-100 and §Ý16116 of the Election Law (N.Y. Elec. Law §§ 16-100, 16-116 (McKinney 1997)), Article 78 of the CPLR, and 42 U.S.C. § 1983.
ARGUMENT
Respondentsí Claim That Less Than 50,000Signatures are Valid is False, as Their Own Worksheets Reveal
Despite the inadequate nature of the "backupî provided by the City, and its refusal to grant petitioners access to the voter registration records over the weekend, Petitioners already have detected fatal deficiencies with the Cityís purported invalidation of many of the signatures.
Amazingly, although the Boardís summary sheet asserts that 33,125 signatures were invalidated (App. Tab N), petitionersí careful review of the Boardís worksheets over the weekend revealed only 21,557 signatures as to which objections of any kind were asserted. Milne Aff. Ý13 (Show Cause Order, Tab 2). The Boardís gross mathematical errors thus led to an overstatement of 11,568 alleged invalid signatures. Even accepting arguendo the Boardís claim as to the invalidity of these signatures, 53,304 uncontested signatures remain, well in excess of the 50,000 signature minimum. Thus, on this ground alone, the Court summarily should declare that petitioners have secured the requisite number of signatures.
Moreover, the merits of the objections the Board has advanced are highly questionable. For example, despite the lack of access to the voter registration records over the weekend, petitioners were able to determine that, with respect to at least eight subscribing witnesses, the Board wrongly contended that the individuals were not registered. As the affidavits submitted herewith reveal, each of these witnessed in fact are registered voters, thus reinstating over 3,500 signatures gathered by these witnesses. Milne Aff. Ý20 (Show Cause Order, Tab 2); See Kaskel Aff. (App. Tab X); Podber Aff. (App. Tab Z); A. Diereses Aff. (App. Tab V); Mar Aff. (App. Tab Y); G. Derezeas Aff. (App. Tab U); Bowen Aff. (App. Tab AA); Schwartz Aff. (App. Tab W); Mackey Aff. (App. Tab S).
In addition to the above-noted errors, the "worksheetsî are replete with mistabulations and other errors. For example:
-- In numerous instances, signatures were "invalidated" on the basis of illegibility, but the signatures in question could not be more clear. See App. TabÝP (collecting examples).
-- In many instances, subscribing witnesses were (erroneously) invalidated as "not registered" on certain sheets but not others. See App. Tab Q (collecting examples).
-- Hundreds of pages contain no apparent objection, although petitioners appear to have been given no "credit" by the Board for the valid signatures. See App. Tab R (collecting examples).
-- There appeared to be many instances of missing pages in the worksheets produced by the Board. Milne Aff. 15 (Show Cause Order, Tab 2).
There are various other examples, too numerous to specify here, but which petitioners are prepared to present to the Court at a hearing if necessary.
The Court therefore should hold the respondentsí "worksheetsî so permeated with errors as to invalidate them altogether. The respondents are public agencies responsible to maintain the public trust. They should not be permitted to publish such grossly inept work without fear of punishment or approbation.
This is especially so since this is not the first time the respondents have initially purported to invalidate thousands of petition signatures in a charter amendment initiative, only later to admit their in ability to substantiate their claims. Just last year, Judge Shainswit ordered respondents precluded from challenging the signatures on a SectionÝ40 petition when they could not produce proof of their claim:
On September 16, 1996, the City Clerk rejected the initiative petitions because, inter alia, the Board of Elections had found that they contained an insufficient number of valid signatures. It is undisputed that respondent Board has failed to produce a Clerkís report detailing and supporting its finding. Section 40 of the City Charter provides that each signature of an initiative proceeding be "authenticated in the manner provided by the Election Law for the authentication of designating petitions.î
Due process review of an administrative action includes determining whether the state agency has provided adequate avenues of redress to review and remedy its actions. Cornett v. Sheldon, 894 F. Supp. 715, 727 (S.D.N.Y. 1995). Although the Election Boardís determination of the validity or invalidity of a petitionís signatures is presumptively correct (Maguire v. Bennett, 152 Misc. 2d 265 (Sup. Ct. 1991)), the failure of Respondent Board to produce a Clerkís report effectively deprives petitioner of an opportunity to challenge the Boardís determination.
Juntikka v. Cuevas, N.Y. L. J., Nov. 1, 1996, at 26, col. 1 (N.Y. Sup. Ct.), affíd, 648 N.Y.S.2d 558 (1st Dep't. 1996) (See App. Tab H).
Likewise, respondents were forced to abandon initial claims of signature invalidity in at least two other reported cases. In Sinawski v. Cuevas, 133 Misc. 2d 72, 73, 506 N.Y.S.2d 396, 397 (N.Y. Sup. Ct.), affíd, 123 A.D.2d 548, 506 N.Y.S.2d 711 (1st Depít 1986) -- an initiative proceeding under Section 37 of the Municipal Home Rule Law -- the Clerk initially took the position that the petition failed to contain the required number of valid signatures, but provided no substantiation for the claim. After further proceedings before a special referee, the Clerk finally conceded that the formerly contested signatures were valid. Likewise, in Adams v. Cuevas, 133 Misc. 2d 63, 65, 506 N.Y.S.2d 614, 616 (N.Y. Sup. Ct.), affíd, 123 A.D.2d 526, 506 N.Y.S.2d 501, affíd, 68 N.Y.2d 188, 507 N.Y.S.2d 848 (1986), the Clerk initially certified that a petition submitted pursuant to Section 37 of the Municipal Home Rule Law did not contain the requisite number of valid signatures, but later, during the course of hearings before the Referee, conceded that the petition contained the requisite number of valid signatures.
Although incompetence alone may explain respondentís actions, one can only wonder whether such tactics are designed to overwhelm the resources of small, grass-roots organizations such as the SRAC, which may not have the resources effectively to challenge such massive "claimsî of invalidity. In any event, such tactics must be condemned, and respondents should be precluded from contesting the validity of the signatures.
In the alternative, if the Court is not prepared immediately to hold that petitioners have secured the requisite number of signatures for all of the reasons articulated above, it should order the Board forthwith to grant access to both the computerized and paper voter registration records (maintained by the Board), Monday through Friday, until at least 9:00 p.m., and Saturday and Sunday, at least until 7:00 p.m. Such relief is granted routinely in these types of election law cases. See, e.g., In re Calise, 1 A.D. 2d 492, 151 N.Y.S.2d 33 (lst Dep't 1956) (Board of Elections required to make such provisions for staying open to permit examination of public records as the exigencies may require).
Nothing in Section 40 or the Election LawGives the Clerk or the Board of Elections AuthorityUnilaterally to Refuse to Certify the Petition, Except for Facial Deficiencies
Petitioners submit that the Clerk has no authority unilaterally to challenge the petitionersí signatures, or to censor the initiative based on its subject matter. This is so for at least the following reasons.
As an initial matter, the only reference to the Clerk in Section 40 is to his purely ministerial role, that of receiving objections to proposed initiatives advanced by third parties, "If within ten days after the filing of [a Section 40] petition a written objection thereto be filed with the office of the city clerk, the Supreme Court . . . shall determine any question arising thereunder and make such order as justice may require.î NYCC §Ý40(2)(c)(1) (emphasis added). Nothing in Section 40 even remotely supports giving the Clerk authority unilaterally to refuse to certify a proffered petition. In fact, far from contemplating any role in regulating the substance of amendment proposals, the only other relevant "authorityî granted the Clerk under the Charter is that he is required to prepare an abstract of the amendment proposal for inclusion on the ballot. NYCC § 41. See also NYCC § 48(a) (Clerkís powers generally limited to keeping "all the papers and documents of the City,î including local laws and records of the proceedings of the City Council).
Section 40 also mandates that supporting signatures "be authenticated in the manner provided by the Election Law for the authentication of designating petitions.î NYCC § 40(2)(c)(1). But the Election Law accords neither the Clerk nor the Board of Elections authority to go beyond a ministerial evaluation of the signatures making up a petition.
Thus, the case law makes clear that the Boardís role is limited to purely ministerial assessments of the signatures. For example, in OíConnor v. McGivney, 144 Misc. 2d 396, 397, 544 N.Y.S.2d 973, 974 (N.Y. Sup. Ct. 1989), the Court held that the Board of Electionís "sua sponte review and invalidation of Ö unchallenged designating petitionsî fell outside "the lawful exercise of its powers.î In so ruling, the Court wrote:
A Board of Electionís statutory power extends only to a ministerial examination of the legal sufficiency of a designating petition (citation omitted) "the distinction between ministerial and judicial acts is that where the law prescribes the rule to be followed so as to leave nothing to the exercise of judgment or discretion, the act is a ministerial act, but where the act involves the exercise of judgment or discretion in determining whether the duty exists, the act is judicial.î (citation omitted)
* * *
The procedure followed [in conducting a sua sponte review] is fraught with danger since it is susceptible of selective application Ö. Indeed, the [Boardís] policy is, by definition and application, arbitrary and selective. It violates fundamental due process.
OíConnor , 144 Misc. 2d at 397-399, 544 N.Y.S.2d at 974-975. See In re Smith, 196 Misc. 2d 109, 112, 91 N.Y.S.2d 357, 360 (N.Y. Sup. Ct. 1949) (citing Matter of Bednarsh v. Cohen, 267 A.D. 133, 45 N.YS.2d 1 (1st Dep't. Ct. 1943)); Schwartz v. Heffernan, 304 N.Y. 474, 479, 109 N.E.2d 68, 69 (N.Y. 1952).
The Board thus is prohibited from evaluating claims that signatures were obtained by fraud or are forgeries; the courts are better equipped to resolve such claims. As the Court held in Application of Hanofee, 47 Misc. 2d 787, 789, 263 N.Y.S.2d 235, 238, affíd and modified, 24 A.D.2d 729, 263 N.Y.S.2d 314, affíd sub nom., Hanofee v. Williams, 16 N.Y.2d 885, 212 N.E. 2d 56, 264 N.Y.S.2d 547 (1965):
The Board is limited to pass upon objections filed involving matters that appear on the face of the papers themselves, and to determine the validity of the objections and the sufficiency of the petitions. In other words the Board does no more than scrutinize the face thereof as to compliance with the rules concerning designating petitions.
See also, e.g., In re Frankel, 212 A.D. 664, 671, 208 N.Y.S. 721, 724 (2d Dep't 1925) (holding that Clerk prohibited from assessing charges of "fraud or forgery;î "[the Clerk] may pass on purely ministerial questions, but I do not think that the Legislature intended that [the Clerk] should go behind the face of the papers and determine questions determined by the [C]lerk here.î). See also Board of Elections, Rules for Designating Petitions G7 (providing that Board will not normally decide claims of fraud or forgery because such claims are more appropriately resolved by the courts) (App. Tab I).
Moreover, the Board of Elections does not normally advance sua sponte objections to petition submissions, and instead sits as an administrative tribunal evaluating the merits of objections to petitions asserted by third parties (subject to the above-noted limitations). See, e.g., Board of Elections Rules G6 (requiring objectors to file specific objections, lest Board dismiss them in adjudicative proceeding as "frivolousî); H1-5 (stating that clerk will review submitted objections in advance of hearing before Board); I1-5 (establishing procedure for Board to hear third party objections) (no provisions addressing sua sponte objections) (App. Tab I). Indeed, at least one court has refused to allow a Board of Elections to undertake a sua sponte review of signatures in a petition. E.g., OíConnor , 144 Misc.2d at 398, 544 N.Y.S.2d at 974.
Nor does Section 40, or the Election Law, give either the Clerk or the Board authority to advance subject-matter objections on its own initiative. Section 40 contains no language even remotely conferring such authority. The Election Law is likewise silent. If the Board is ill-equipped to deal with claims of fraud or forgery, it is even less equipped to address subject matter objections, which present issues of statutory interpretation and application which clearly are the province of the courts. The same is true for the Clerk, especially in light of the Clerkís status as an agent of the existing city government. Permitting the Clerk to evaluate the "proprietyî of proposals to change the structure of the existing government (in which the current government has a vested interest) creates an evident conflict of interest. Nor is this conflict cured by the (apparent) fact that the Clerk has received input from the Corporation Counsel. (App. Tab A). The Corporation Counsel itself is part of the "entrenchedî city institutions. In fact, Section 41 of the Charter limits the involvement of the Corporation Counsel in amendment initiatives to advising the Clerk in the preparation of an appropriate, and accurate, abstract of the proposal for inclusion in the ballot. NYCC § 41. If the Charter framers had wanted the Corporation Counsel to play a greater role in the process they surely would have expressly so provided.
Tellingly, the limit of the Clerkís power with respect to Section 40 initiatives is illustrated when compared with the significant power granted the Clerk with respect to initiatives under Section 37 of the Municipal Home Rule Law (hereinafter "MHRLî). MHRL § 37 (McKinney 1997). Section 37 provides a distinct mechanism for all state citizens (including citizens of New York City) to amend city charters through ballot initiatives. Section 37, in sharp contrast to Charter Section 40, specifically requires municipal clerks to evaluate the compliance of submitted petitions with "all the requirements of law." MHRL §Ý37(5) has been in effect for decades. If the Charter framers had wished to expand the powers of the City Clerk with respect to Section 40, they had numerous opportunities to do so. There is a strong presumption therefore that the framers of Section 40 did not intend to grant the Clerk powers similar to those provided in MHRLÝSection 37.
Moreover, as shown below, to permit the Clerk unilaterally to determine, without any procedural safeguards, whether the subject matter of the proposed initiative falls within the statute, would violate decades of relevant U.S. Supreme Court teaching.
The Clerkís Actions Deprive Petitioners of Their Rights to Free Speech and Due Process Under the Federal and New York State Constitutions
A. The Right to Political Speech Conferred Under Section 40 of theNew York City Charter Must Be Dispensed in a Manner ConsistentWith the Free Speech Protections of the United States ConstitutionÝÝ
State action impinging on political speech is subject to the strictest constitutional scrutiny under the federal constitution. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (political speech accorded the "broadestî possible protection under the Federal constitution); First Natíl Bank v. Bellotti, 435 U.S. 765, 786 (1978) ("Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, the State may prevail only upon showing a subordinating interest which is compelling.î). Prior restraints on protected speech, especially political speech, are almost always condemned. E.g., Meyer v. Grant, 486 U.S. 414, 421 (1988) (governmental restrictions on political speech are "well-nigh insurmountableî). As the Supreme Court has warned in case after case, "Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity,î Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (and cases cited therein), and the restriction of even "small incrementsî of speech must be resisted. FEC v. Mass. Citizens for Life, 479 U.S. 238, 264 (1986).
The First Amendment prohibits Congress from, inter alia, "abridging the freedom of speech .Ý.Ý.or the right of people peaceably to assemble, and to petition the government for redress of grievances.î U.S. Const. amend. I. The Fourteenth Amendment makes that prohibition applicable to the State of New York and its subdivisions, including the City of New York. Const. amend. XIV § 1; McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336 (1995).
The right of the people of New York City directly to amend the Charter is a state-conferred rather than a fundamental right. McCabe v. Voorhis, 243 N.Y. 401, 153 N.E. 849 (N.Y. 1926). However, there can be no legitimate dispute that this right involves political expression; indeed the very placement of an initiative on the ballot -- allowing the electorate to consider and discuss its merits -- constitutes a form of political speech. And, the speech ancillary to the placement of an initiative on the ballot (e.g., the interactive discussions involved in securing petition signatures as well as the exchange of views over whether the measure should be supported once it is on the ballot) unquestionably is "core political speech.î See, e.g., Meyer, 486 U.S. at 421; Bellotti, 435 U.S. at 776. Initiative petitions foster the dynamic exchange of ideas concerning issues of the day that is at the heart of the First Amendment's protection. See, e.g., Mills v. Alabama, 384 U.S. 214, 218 (1966) ("[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (proclaiming this countryís "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-openî); Associated Press v. United States, 326 U.S. 1, 20 (1945) (First Amendment designed to secure "the widest possible dissemination of information from diverse and antagonistic sources,î and "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.î).
Likewise, acknowledging the importance of initiative petitions as a form of political expression, the United States Supreme Court quoted with approval the following holding of the Colorado Supreme Court: "[S]tatutes that limit the power of the people to initiate legislation are to be closely scrutinized and narrowly construed.î Meyer , 486 U.S. at 423 (quoting Urevitch v. Woodard, 667 P.2d 760, 763 (1983)). Similarly, the Supreme Court of Maine, also relying on Meyer, recently held that
Although the right to invoke an initiative is a state-created right, it does not follow that the state is free to impose limitations on that right without satisfying the dictates of the first amendmentÖ. Restrictions on the right to undertake an initiative are subject to exacting scrutiny, must be justified by a compelling state interest and be narrowly tailored to serve that interest.
Wyman v. Secretary of State, 625 A.2d 307, 311 (Me. 1993).
The Supreme Court also has warned that, where states "decide[ ] to confer the right [of popular referendum]î on the people, they are "obligated to do so in a manner consistent with the Constitution.î Meyer, 486 U.S. at 420. The Court in Meyer did not consider a direct state restraint on the right of initiative, such as that presented by the Clerkís actions here, but rather considered an indirect restraint on that right, imposed by a Colorado statute that made it a crime to engage professional canvassers to secure signatures under the state voter initiative law. In striking down the statute, as noted above, the court rejected the stateís argument that, because the initiative procedure was a state-conferred right, the State was free to regulate it in whatever manner it saw fit. Id. at 425. The Court held that the interactive exchange of ideas involved in securing signatures was core political speech, and that the limitation on professional canvassers could impermissibly "shrink the size of the audience that could be reachedî by the petitionersí message. Id. at 419 (internal quotation marks omitted). Importantly, the Court also held that the limitation there was unconstitutional because "it makes it less likely that [petitioners] will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter a focus of statewide discussion.î Id. at 423.
Thus, the Supreme Court acknowledged that the "statewide discussionî made possible by the right of initiative itself, albeit a state-conferred right, is subject to constitutional protection. Numerous courts have come to similar conclusions. E.g., Biddulph v. Mortham, 89 F.3d 1491, 1500 (11th Cir. 1996) (citing Meyer v. Grant, 486 U.S. 414 (1988)) (recognizing that, while Floridiansí right to amend the state constitution through voter initiative was state-conferred, nevertheless, content based state limitations on initiative access would be forbidden under the Constitution); Taxpayers United v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (citing Meyer v. Grant, 486 U.S. 414 (1988)) (although holding that "content-neutralî technical checks for evaluating petition signatures did not violate First Amendment, the Court wrote that "[A]lthough the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal constitution. . ."); Georges v. Carney, 691 F.2d 297, 301 (7th Cir. 1982) (state restrictions on access to ballot initiative would be constitutionally invalid if content-based); Wyman, 625 A.2d at 311 (citing Meyer v. Grant, 486 U.S. 414 (1988)) (holding that the "right to undertake an initiativeî is subject to exacting constitutional scrutiny, although state created).
Moreover, the Supreme Court repeatedly has recognized that where, as here, the state opens a forum of expression -- even if it does so on a discretionary basis only -- it is required to grant access to that forum in a manner consistent with the Constitution. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Supreme Court holds that municipality violated First Amendment by prohibiting presentation of controversial musical "Hairî at municipal theater; where municipality elected to open a forum for expression -- the theater -- it was required to grant access to the forum in a manner consistent with the Constitution); Blount v. Rizzi, 400 U.S. 410, 416 (1971) (administrative censorship scheme for Postal Service violated First Amendment since it lacked built-in safeguards against curtailment of protected expression: "The United States may give up the Post Office when it sees fit, but while it carries on the use of the mails is almost as much a part of free speech as the right to use our tongues.î) (internal quotation marks omitted).
In short, there is no doubt that the right to political expression through ballot initiative is an important right, and is subject to significant constitutional protection.
B. The Clerkís Effort to Censor Petitionersí Access to theBallot, Without Providing a Mechanism for Prompt JudicialReview, Violates Petitionersí First Amendment and Due Process Rights
The Supreme Court has made clear that where as here the state sets itself up as a censor (thus imposing prior restraints on speech), it must provide a mechanism for prompt judicial review of its suppression decisions: "We have tolerated [systems of prior restraint] only where [they] operate under judicial superintendence and assure an almost immediate judicial determination of the validity of the restraint.î Bantam Books, 372 U.S. at 70; see also Blount, 400 U.S. at 419 n. 6 (the Constitution demands that "a noncriminal censoring process requires governmentally initiated full judicial participationî); Freedman v. Maryland, 380 U.S. 51, 59ñ60 (1965) (striking down state scheme requiring prior licensing of motion picture exhibitions; court held that even with respect to artistic expression, generally not as highly protected as political expression, "only a judicial determination Öensures the necessary sensitivity to freedom of expression.î); Teitel v. Cusack, 390 U.S. 139 (1968) (same); United States v. Thirty-Seven Photographs, 402 U.S. 363, 367, 371 (1971) (prompt judicial review necessary to ensure that "administrative delay does not in itself become a form of censorshipî; statute can only be saved by reading into it explicit brief time limits for the commencement and completion of judicial review); Blount, 400 U.S. at 429 (statute could not be saved by reading into it explicit time limits for judicial review, where statute not only lacked such time limits, but also lacked any explicit authorization to the administrative agency to seek judicial review of its own actions: "[I]t is for [the legislature], not this Court, to rewrite the statute.î).
The Court also has made clear that, in instances of prior government restraint on expression, the burden is on the government, not on the affected citizen, to seek prompt judicial review. Freedman, 380 U.S. at 58ñ59 (burden is on censor to prove that film is unprotected expression; censor must, within a specified brief period, either issue license or go to court to restrain showing of film; "procedure must also assure prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous [censorship decision]Ö. Without these safeguards, it may prove too burdensome to seek review of the censorís determination.î). See also Bantam Books, 372 U.S. 58 ; Blount, 400 U.S. 414; Teitel, 390 U.S. 139; Thirty-Seven Photographs, 402 U.S. 363. Such a rule is necessary, in part, because requiring citizens to commence legal proceedings to vindicate their First Amendment rights entails costs that may be prohibitive, thus rendering "the [stateís] determination Ö in practice Ö final.î Blount, 400 U.S. at 419. Cf. Thornhill, 310 U.S. at 97 ("It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.î).
In this case, the Clerk has ignored the above-noted teachings of the Supreme Court. The Clerkís refusal to certify the petition on the basis of its subject matter is a form of content-based censorship. In this respect it is no different than the censorship imposed by the postal service or the customs service with respect to alleged obscene material, which the Supreme Court emphatically has stated must be subject to almost immediate judicial review to withstand constitutional scrutiny. E.g., Thirty-Seven Photographs, 402 U.S. 363 (Customs Service); Blount v. Rizzi, 400 U.S. 414 (Postal Service). In both cases, the government is making a determination as to whether the speech is "permissibleî (in the referenced cases, whether it is nonobscene, and here whether it is a "properî subject for charter amendment). Both cases therefore are subject to the constitutional protections required by the Supreme Court. The availability of prompt judicial review is particularly necessary here, for without it there would be no way of knowing whether the Clerkís unilateral refusal to certify was based on inappropriate political opposition to the proposed amendment. Permitting such unilateral discretion would frustrate one of the key purposes of Section 40 -- namely, empowering the people to bypass entrenched political interests in the city government that might otherwise be hostile to change. See, e.g., Shaw 169 (App. Tab L).
By refusing to certify the petition on the basis of subject matter, not only has the Clerk here unilaterally acted to "censorî petitionersí right to an initiative, but he has also done nothing to assure the "prompt judicial reviewî required by the Supreme Court. This is so despite the fact that Section 40 provides that objections (by third parties) be resolved by the courts.
Moreover, as discussed above, by its assertions as to signature invalidity, the Clerk at the very least forces many Section 40 petitioners to litigate simply to establish the Clerkís (and the Boardís) incompetence. These tactics substantially raise the costs of utilizing Section 40, and create a distinct risk -- if not certainty -- of chilling this mode of political expression.
As in the First Amendment context, the fact that the party afflicted by the restraint could sue to vindicate its rights is no excuse for denying appropriate due process in the first place. Speiser v. Randall, 357 U.S. 513, 523 (1958) ("[A]llocation of burden of proof, in an issue concerning freedom of speech, [fell] short of the requirements of due processî where the speaker had the burden of proving protected nature of speech); Freedman, 380 U.S. at 59-60 (film censorship statute violated free speech and due process rights where "once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expressionÖ.); Blount, 400 U.S. at 418 ("fatal flawî of censorship procedure was "in failing to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material;î burden on government to seek review) (quoting Freedman, 380 U.S. at 59-60). Merely requiring that the government seek judicial review at its "discretionî does not save the statute from unconstitutional burden shifting; review must be mandatory. E.g., Blount, 400 U.S. at 430.
Thus, the Clerkís unilateral actions violated petitionersí due process rights (in addition to their First Amendment rights).
C. Unilateral Censorship by the Clerk Would Violate the Protections of Free Speech and Due Process Found in the New York State Constitution
The Constitution of the State of New York provides, inter alia, that "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech . . . .î N.Y. Const. art. I, § 8; and "No person shall be deprived of life, liberty or property without due process of law.î N.Y. Const. art. I, §Ý6. The New York Court of Appeals repeatedly has held that the New York Constitution protects its citizensí rights at least as fully as the federal constitution, and even more fully in the area of individualsí freedom of expression. E.g., New York ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557, 510 N.Y.S.2d 844, 846-847, 503 N.E.2d 492, 494 (N.Y. 1986).
Thus, for the reasons set forth above with respect to the federal constitutional claims, the Clerkís actions also offend the New York State Constitution.
The Subject Matter of the Proposed Amendment FallsSquarely Within the Language and Scope of Section 40 of the Charter
A. The Proposed Amendment is Appropriate Under Section 40
Even if the Court permits the Clerk to "challengeî the petition on the basis of its subject matter, its objection must fail on the merits.
Section 40 of the Charter expressly permits voter-initiated amendments that, inter alia, "creat[e] a new office or offices.î NYCC §Ý40(2)(c)(1). More specifically, Section 40 provides as follows:
Amendments to this charter may be adopted by any of the following methods:
* * *
2. By vote of the electors of the city upon the petition of electors of the city, an amendment may be adopted * * * (b) abolishing any elective office or offices or creating a new office or offices, including if so provided a transfer of powers to the newly created office or offices or a disposition of the powers of any office abolished, but no such amendment shall repeal or change any limitations contained in this charter on any power [,] (c) such amendment may be adopted in the manner following: (1) Not less than fifty thousand qualified electors of the city may file in the office of the city clerk a petition for the submission to the electors of the city at the next general election therein held not less than sixty days after filing of such petition of such a proposed amendment or amendments to the charter to be set forth in full in the petitionÝ.Ý.Ý.Ý.
3. If such proposed amendment or amendments receive the affirmative vote of the majority of the qualified electors of the city voting thereon, it or they shall take effect as prescribed therein.
NYCC § 40(2)(b).
The proposed amendment -- as noted above, creating a new city office, the Commissioner of Animal Affairs -- manifestly falls within the language of Section 40. (App.ÝTab C). Notwithstanding the Clerkís unsupported assertion to the contrary, there is no room for serious dispute on the issue, as both the legislative history and relevant case law make clear.
Section 40 was adopted in 1936 to give the citizens of New York City a vehicle to change the structure of city government on their own initiative. Report of the New York City Charter Revision Commission 41 (1936) (hereinafter "Charter Report") (App. TabÝK). Section 40 armed the cityís electorate with a weapon to bypass entrenched political interests in the various branches of city government that might otherwise be hostile to a proposal to reorganize the structure of city government. Shaw, 169 (App. Tab L). However, the framers made clear that their intent was to limit the types of permissible initiatives under Section 40 to those that would truly be considered appropriate for the Charter, notably revisions to the structure of city government. Thus, in 1936, the New York City Charter Revision Committee wrote as follows regarding the intended scope of Section 40:
This initiative is broad enough to admit of the submission to the people of broad questions of principle in relation to the frame of the government such as may appropriately be submitted to popular vote; but it was not thought wise to permit the initiation of questions of administrative detail that can more deliberately and effectively be dealt with by a legislative body. An initiative petition would require the signatures of 50,000 qualified electors.
Under this system, the people will have the opportunity of themselves initiating and adopting a revision of the structure of the cityís government along broad lines for which there may be a popular demand, while all ordinary amendments will be made by the legislative process of adopting local laws.
Charter Report, 41 (emphasis added) (App. Tab K). The Commission also characterized the initiative provision of the charter as "far-reaching.î Id.
The creation of a new Commissioner of Animal Affairs, together with an associated Department of Animal Affairs, is precisely the type of "revision of the structure of the cityís government along broad linesî contemplated by the drafters of Section 40. Id. Indeed, if such an amendment were found not to be appropriate under Section 40, it is difficult to conceive what type of amendment would be appropriate.
Even a cursory review of the New York City Charter reveals that the proposed amendment is of a piece with the types of provisions found in the Charter. Thus, for example, the Charter establishes the offices, and broadly defines the powers of, the City Commissioners and their departments, e.g., Law (Chpt. 17), Police (Chpt. 18), Fire (Chpt. 19), Education (Chpt. 20), and Health (Chpt. 22). The proposed amendment likewise would establish a new City Commissioner of Animal Affairs and associated department, at the same top-line level as found in the provisions of the Charter establishing the other city agencies. For example, compare Charter Chpt. 22 (Department of Health) with Proposed Amendment.
The cases interpreting Section 40 are consistent with this result. See, e.g., Burke, 287 N.Y.203, 38 N.E.2d 500 (Court of Appeals upheld the validity of an initiative under thenSection 44 of the Charter, establishing new offices of city sheriff and register, transferring the powers from then existing county offices of sheriff and register); Juntikka, N.Y.L.J., Nov. 1, 1996, at 26, col. 1 (App. Tab H) (holding that proposed §Ý40 initiative -- establishing limits on campaign contributions and mandatory debates among political candidates -- was inappropriate, in part, because the Charter already contained a Department of Campaign Finance, and the proposed amendment was not sufficiently "structuralî to warrant inclusion in the Charter; court found initiative more appropriate for addition to city administrative code); Silberman, 54 Misc. 2d at 960, 283 N.Y.S.2d at 899 (holding that proposed §Ý40 initiative -- establishing an "Anti-Vietnam War Coordinatorî for the city -- failed because it bore no relation to the traditional functions of city government; noting that Section 40 intended to "effectuate changes, alterations or modifications of the local governmentís functions. . . .î).
Put simply, the proposed amendment is entirely appropriate under the plain language of Section 40, its legislative history, and relevant case law.
B. The Clerkís "Subject Matterî Objections are Specious
The Clerkís "subject matterî objections -- to the extent they are comprehensible at all -- are without merit.
First, although the Clerk concedes that Section 40 contemplates a "basic structural change to City government,î it nevertheless contends that the proposed amendment "represents a set of detailed administrative and programmatic requirements that are not Charter amendments . . . .î (App. Tab A). But the Clerk does not even attempt to explain how the broad-based mandate contained in the proposed amendment constitutes "detailed administrative and programmatic requirements.î Nor does the Clerk acknowledge the indisputable similarity, noted above, in the level of detail between the new department it seeks to create, and the existing departments in the City Charter.
Second, the proposed amendment does not propose new "mandates,î as the Clerk suggests. Id. Instead it merely carries out the "mandateî embodied in the law of this state, and long ago delegated to the City, to "maintain a shelter or other facility for lost, strayed and homeless animals,î "to issue licenses and renewals and to collect fees therefore,î and to "prescribe standards . . .for the humane treatment of animals impounded pursuant to this act.î Lost and Strayed Animals Act, ch. 115, N.Y. Consol. Laws of 1894 §§ 8-10. Moreover, nothing in Section 40 prohibits amendment initiatives that "create new mandates.î
Third, the Clerk is mistaken in contending that the proposed amendment "limitsî authority exercised by the Mayor. As shown above, the proposed amendment merely transfers power that currently resides primarily in the Department of Health, and reiterates the fundamental tenet of State and City law that animals be treated humanely and responsibly. Id. This hardly can be said to limit any authority held by the Mayor.
Fourth, there is no prohibition under Section 40 -- as the Clerk appears to suggest -- against amendment proposals that would require the expenditure of "City monies.î In fact, in 1936, the Charter Revision Commission specifically considered a proposal to prohibit initiatives that would require the expenditure of additional city funds, but that proposal never was incorporated in the Charter. (App. Tab M). Moreover, such a requirement would emasculate Section 40, for it is hard to imagine an amendment that would effect "basic structural changesî in city government, but would not require the expenditure of City monies.
In short, as the Clerk apparently sees it, Section 40 is a Scylla and Charybdis proposition, that is, "properî amendments must be broad enough to effect "basic structural change,î but narrow enough so that they cost nothing to implement and in no way affect the powers of existing city agencies or officers. Such an interpretation is absurd indeed, and cannot be accepted. Such relief is warranted here.
The Court Should Require Respondents to Place the Proposed Amendment on the Ballot Pending Resolution of this Dispute
If the Court is not prepared immediately to grant petitioners the relief they seek, respondents should be required to include the proposed initiative on the ballot, including the military ballot, pending a final resolution of this matter.
Numerous courts have granted such relief in the context of candidates, requiring the placement of a candidate on the ballot pending final resolution of the dispute over the candidateís eligibility. See, e.g., Rockefeller v. Powers, 78 F.3d 44 (2d Cir. 1996); Hirschfeld v. New York City Bd. of Elections, 984 F.2d 35 (2d Cir. 1993); Brock v. Sands, 924 F. Supp. 409 (E.D.N.Y. 1996); Farrell v. Morgan, 112 A.D.2d 882, 493 N.Y.S. 2d 555 (1st Dep't. 1985). As one court aptly held in ordering a candidate placed on the ballot pending final resolution of a dispute over his designating petitions:
It would be a hollow victory indeed if this court were to deny plaintiffsí motion for a preliminary injunction and later decide, after the primary election, that Mr. Farrell and his supporters had a right to have Mr. Farrellís name on the ballot. To make any permanent relief meaningful, preliminary relief must be granted.
Farrell v. Morgan, 1985 WL 2339 at *4, (S.D.N.Y. Aug. 20 1985).
A preliminary injunction is appropriate where the movant shows "Ýëa probability of success, danger of irreparable injury in the absence of an injunction, and a balance of equities in [the movantís] favor.íî Pyramid Centres and Co. v. Sarwill Assocs., 186 A.D.2d 968, 969, 589 N.Y.S.2d 214,215 (3d Depít 1992). Such relief is warranted here.
First, as shown herein, petitioners have demonstrated a strong likelihood that they will succeed on the merits of their claim.
Second, petitioners will be grievously and irreparably injured if their ability to participate in this yearís election is foreclosed because a final resolution of this case cannot be secured before the printing deadline. This is classic irreparable harm, since each election year is unique and cannot be recreated. Petitioners have toiled for months to reach this point, and now have momentum and focus behind their efforts. Although theirs is a grass-roots effort, petitioners have secured a broad base of public support, significant publicity, and important endorsements (the ASPCA, Council Member OíDonovan). But the shelf life of political sentiment is all too brief and there is no guarantee that all of these propitious factors will still be in place if petitioners prevail on the merits, but are required to wait until next year to place their cause before the electorate. This is especially true since this year is a mayoral election year, which typically creates greater voter interest and participation. Nor can this injury be compensated monetarily; petitioners do not seek personal enrichment, but rather a structural change in the city government which they believe will better the lives of all New Yorkers. Moreover, numerous courts have held that an infringement of First Amendment rights ipso facto constitutes irreparable harm. See, e.g., Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996); Intíl Dairy Foods Assín v. Amestoy, 92 F.3d 67 (2d Cir. 1996); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991).
Third, the burden on respondents to place the petition on the ballot pendente lite will be minimal. If petitioners prevail on the merits, respondents will incur no additional costs. If respondents ultimately prevail on the merits, they face merely the incremental expense of placing one additional item on the extensive ballot materials they must prepare in any event. Thus, the balance of equities tips decidedly in petitionersí favor.
Accordingly, the requested preliminary relief should be granted.
Petitioners are Entitled to Attorneys' Fees Pursuant to 42 U.S.C. 1988
Where, as here, a federal constitutional claim is successfully asserted in state court pursuant to 28 USC § 1983, recovery of attorneyís fees from the state is authorized pursuant to 28 USC § 1988. Section 1988 provides as follows in this regard:
In any action or proceeding to enforce a provision of section[ ] . . . 1983 .Ý.Ý. of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneyís fee as part of the costs . . . .
The Supreme Court has held that prevailing parties in Section 1983 actions "should ordinarily recover an attorney fee unless special circumstances would render an award unjust.î Blanchard v. Bergeron, 489 U.S. 87, 88 (1989) (citing Newman v. Piggie Park Enter. Inc., 390 U.S. 400, 402 (1968)). Recovery of attorneys fees is appropriate in a state case, such as this one, involving pendent federal constitutional claims. Wyman v. Secretary of State, 625 A.2d 307,312 (Me. 1993) (citing Maher v. Gagne, 448 U.S. 122, 132 n. 15 (1980)) (pursuant to Section 1988, an award of attorneys fees is proper where a pendent constitutional claim is involved); Exeter-West Greenwich Reg'l Sch. v. Pontarelli, 788 F.2d 47, 51 (1st Cir. 1986) (proper to award attorneys fees on a state law claim arising from the same set of facts as the constitutional claim).
Accordingly, if the Court rules in petitionersí favor, petitioners should be entitled to reasonable attorneys fees, in an amount to be determined by the Court.
CONCLUSION
The petitioners are entitled to the emergency relief requested in the petition for the reasons stated above.
Dated: New York, New York
September ___, 1997
Respectfully submitted,
DEWEY BALLANTINE
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
Attorneys for Petitioners Julie Van Ness and Shelter Reform Action Committee
Of Counsel:
Wayne A. Cross
Robert A. Milne
Caryn S. Glasser
Petitionersí Appendix hereinafter is cited as "App. Tab ___.î In addition, respondents are sometimes referred to collectively herein as "the City.î
No objection to the form or substance of the proposed initiative has been filed by any third party.
As part of his charter-granted responsibility to safeguard public health, the Commissioner of Health (through the Department of Health), administers and enforces the New York City Public Health Code, including its animal control policies and procedures. NYCC §§ 551-568.
The New York City Law Department incorporated the CACC under Section 402 of the New York State Not-For-Profit Corporation Law. Staff Report at 4. (App. Tab D). The Department of Health contract with the CACC provides the latter with approximately $15 million for operating expenses for the period of September 1, 1994 to December 31, 1997. Id. at 8. The CACC also receives capital funding from the City. Id.
These signatures are entitled to a presumption of validity under the Election Law, N.Y. Elec. Law § 6-154 (McKinney 1997), a presumption that respondents have not rebutted despite having the opportunity to do so.
According to the instructions given to the Board reviewers (App. Tab O), the number of valid signatures was to be noted on the lower left hand corner of each sheet. These sheets contain either a zero, or no number at all.
To the extent the Board intends to assert objections to signatures on any missing pages, it should be precluded from doing so by its failure to produce the pages, and by its representation that it had produced "everything we have.î Juntikka v. Cuevas, N.Y.L.J. , Nov. 1, 1996, at 26, col. 1 (N.Y. Sup. Ct.), affíd, 648 N.Y.S.2d 558 (1st Depít 1996) (See Tab H for a copy of the opinion) (City Clerk precluded from contesting signatures where it failed to produce proof of its objections).
Nor is it credible to argue that the Clerk can function as an "objectorî for these purposes. First, it makes no sense for the Clerk to "fileî objections with himself, as such a reading of Section 40 would require. Moreover, the Clerk has submitted no evidence that he has actually complied with this filing requirement. Second, since a primary purpose of Section 40 is to bypass the entrenched political interests, Frederick Shaw, The History of the New York City Legislature, 169 (1954) (App. Tab L) (hereinafter "Shaw"), it is absurd to construe Section 40 as according a representative of those interests the right to object, particularly where the effect of that objection is to block the proposal altogether (unless the petitioner starts a lawsuit to reverse the objection). Indeed, Section 40 states that objections will be filed with the Clerk, and that such objections "shall [be] determine[d]î by a justice of the Supreme Court. But the Clerk cannot function as an "objector,î and then fail to seek a resolution of the objection by the Supreme Court, as the statute requires. Nor is it sufficient for the Clerk to shift the burden to petitioners to seek judicial review (see detailed analysis of United States Supreme Court case-law, Section III infra). The plain reading of the statute is that the Clerk functions merely as a recipient of objections, which in turn are to be resolved by the Supreme Court.
Thus, citizens of New York City have two alternative mechanisms to amend their City Charter. See Burke v. Kern, 287 N.Y. 203, 211, 38 N.E.2d 500, 503 (1941) (holding that Section 40 and Section 37 are distinct; Section 37 did not overrule or supersede Section 40; citizens can choose to pursue either mechanism for charter amendment).
Three cases -- apparently confusing MHRL Section 37 with Charter Section 40 -- have allowed the Clerk to block Section 40 initiatives based on alleged subject matter deficiencies. Juntikka v. Cuevas, N.Y. L.J., Nov. 1, 1996, at 26, col. 1; Connolly v. Stand, 192 Misc. 872, 83 N.Y.S.2d 445 (N.Y. Sup. Ct.), affíd, 274 A.D. 877, 82 N.Y.S.2d 922 (1st Depít), affíd, 298 N.Y. 658, 82 N.E. 2d 399 (1948); Silberman v. Katz, 54 Misc. 2d 956, 283 N.Y.S. 2d 895 (N.Y. Sup. Ct), affíd, 28 A.D.2d 992, 284 N.Y.S.2d 836 (1st Dep't. 1967). These cases are inapposite, and wrongly decided. First, and most importantly -- although in each case the Clerk functioned as a unilateral "censorî of the petitionís subject matter, in clear violation of U.S. Supreme Court jurisprudence (see infra Section III) -- none of the petitioners in these cases advanced such a constitutional challenge. These cases are not controlling for this reason alone. Second, in the Silberman case the Court initially acknowledged the "validityî of petitionerís argument that the Clerk had exceeded its authority by making substantive objections to the proposed initiative. But the Court immediately reversed itself, holding that the Clerkís objections nevertheless would be entertained because the proposed charter amendment, if enacted, would affect all of the citizens of the city. Silberman, 54 Misc. 2d at 958-59, 283 N.Y.S.2d at 899. But this obviously result oriented "holdingî (accompanied by no citation) (1) ignored the fact that Section 40 gives third parties the right to object, thus empowering any "affectedî citizen to oppose the petitionís inclusion on the ballot (in addition to voting against it); and (2) disregarded the Court of Appealsí instruction that ballot initiatives generally not be excluded from the ballot on the ground that they would be inappropriate, if enacted (such challenges being reserved for when, and if, the measure is passed). McCabe v. Voorhis, 243 N.Y. 401, 411-412, 153 N.E. 849, 851(N.Y. 1926).
Third, the Juntikka court rested its rejection of petitionerís "standingî argument on the contention that it is "well-settledî that the Clerk may refuse to certify proposals that would be "invalid under the provisions of the City Charter.î Juntikka, N.Y.L.J., Nov. 1, 1996, at 26, col. 1. But, like the Silberman Court, this holding ignores the Court of Appealsí ruling in Voorhis (noted above). The only case cited by the Judge for this supposedly "well-settledî proposition was Connolly. But in Connolly the petitioner did not even contest the standing of the Clerk, and the Court merely noted in passing that the Clerk had "dulyî considered the petition. Although the Juntikka case was affirmed, the Appellate Division, in its one sentence opinion, did not addresses the "standingî question, writing only that it agreed with the trial courtís decision on the merits. Juntikka v. Cuevas, 648 N.Y.S.2d 558 (1st Dept. 1996)(Clerk correctly rejected initiatives petitions inasmuch as proposed amendments are not proper subject of a referendum).
Fourth, none of these cases involved anything other than a passing glance at the nature and limitations of the Clerkís power (which, as discussed above, reveal the limits of the Clerkís authority); this Court should avoid that pitfall.
The Supreme Court also teaches that state actions which unduly burden, even if they do not actually prohibit, speech are offensive to the Constitution. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S 546 (1975) (quoting Thornhill v. State of Alabama, 310 U.S. 88, 106 (1940)) (municipality prohibited display of musical "Hairî in municipal-owned theater, but did not prohibit display in privately owned theaters; Court rejected this as a justification: "Even if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint; ë[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.íÝî).
Nor are the Clerk's actions narrowly, or even rationally, related to any legitimate state interest. See, e.g., Buckley, 424 U.S. at 64-65 ("significant encroachments on First Amendment rights Ö cannot be justified by a mere showing of some legitimate governmental interest Ö.[T]he subordinating interests of the State must survive some exacting scrutiny.î); Bellotti, 435 U.S. at 786 (Content-based restrictions merit strict scrutiny, must be justified by a compelling state interest, and must be narrowly tailored to serve that interest). At a minimum, the clerk must demonstrate that his unilateral suppression of this speech is rationally related to a state interest. But he cannot do so here. While it is possible that the City has an interest in preventing frivolous initiatives from being included on the ballot, it has chosen far too blunt an instrument to redress that concern. See, e.g., Speiser, 357 U.S. at 513 ("[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . .The separation of legitimate from illegitimate speech calls for. . .sensitive tools. . . .î) As noted, there is no language in the Statute giving the Clerk authority to make content-based objections to initiative proposals, much less to do so without requiring any judicial review. Such an unlimited mechanism runs the risk of initiatives being blocked based on inappropriate political considerations. Even the perception that such improprieties are possible can undermine public confidence in government, as well as "chillî citizensí resort to Section 40 initiatives. The complete absence here of any identifiable limitations on the Clerkís discretion quite obviously cannot satisfy the requirement of even a rational ñ much less a narrowly-tailored ñ relationship to a legitimate state purpose.
Nor would the proposed amendment "repeal or change any limitations contained in [the existing] charter on any power," as the Clerk seems to suggest. (App. Tab A) To the contrary, as discussed above, the proposed amendment would function to transfer power (over city animal management activities) from the Commissioner of Health to the new Commissioner of Animal Affairs.
Section 44 of the Charter was identical to present Section 40.
It should be noted that the proposed amendment -- at § 3036 -- contains a severability clause, which provides that if any portion of the proposed amendment is deemed to be outside the proper scope of Section 40, the remainder should survive. (App. Tab C) Although the Clerk asserts that the severability Clause cannot "saveî the proposal, it cites no authority to support this proposition, and there is no reason why such a draconian rule should apply.
The Clerk may be confusing the requirements of Section 40 with those of MHRL Section 37. As noted above, Section 37 gives New York City citizens an alternative vehicle to accomplish a voter-initiated Charter amendment. Section 37 requires that, under certain circumstances, amendment proposals calling for the expenditure of city funds contain a financial plan. If the City Charter framers had wished to provide a similar requirement in Section 40, they easily could have done so. Nor is it appropriate to mix and match the requirements of the two statutes. Burke, 287 N.Y. 203, 38 N.E.2d 500 (prohibiting such mixing and matching).
It is worth noting, however, that because the proposed amendment largely transfers powers from the Department of Health to the new department, it is by no means clear that material additional expenditures will be required.
Indeed, the Election Law specifically contemplates instances in which candidates are included on the ballot, subject to the possibility of later invalidation (in which event, the votes for that candidate are not counted). See N.Y. Elec. Law, § 7-122.4 ("-- nothing herein contained shall prevent a board of elections or court of competent jurisdiction from determining at a later date that any such certification . . . is invalid and, in the event of such later determination, no vote cast for any such nominee by any voter shall be counted at the election.")
Indeed, respondents hardly can claim to be materially harmed by such an order since, as noted above, the Election Law specifically contemplates the inclusion of candidates on the ballot, subject to a possibility of later invalidation. N.Y. Elec. Law § 7-122.4.