The following is the complete text of NY State Supreme Court Justice David B. Saxe's ruling disallowing the 1997 Animal Welfare & Shelter Reform ballot initiative to be put before the voters in November 1997.


SUPREME COURT : NEW YORK COUNTY IAS PART 50z

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 CPLR, and 42 USC § 1983, inter alia, declaring valid the initiative petition submitted by Petitioners.

INDEX NO. 116570/97

DAVID B. SAXE, J.:

The petitioners seek to propel to this year's election day ballot, an amendment to the New York City Charter that will, in their view, ensure that the health and safety of all animals in New York City are protected. While few could argue with the goal of their proposed mandate, the extent and scope of the initiative renders the procedural vehicle-- a Section 40 ballot initiative-- an inappropriate mechanism.

Background

In June 1997, the New York City Council Committee on Contracts issued a report entitled "Dying for Homes: Animal Care and Control in New York City. The Committee reported that the responsibility for overseeing animal care and control currently resides with the New York City Department of Health, which subcontracts management and operation of the city's animal shelter system to a contractor, the Center for Animal Care and Control ("CACC"). The report asserts that the City's animal shelters are in poor condition, as are the creatures in them, that the CACC has poor public relations and a poor adoption rate, and that CACC has failed to carry out its obligations to implement the programs and protocols required of it.

In response to this report, the petitioners prepared the proposed amendment to the City Charter, proposing the creation of a Department of Animal Affairs, headed by a Commissioner of Animal Affairs, with very clearly delineated powers and obligations. Signatures in support of the petition were collected, and on September 2, 1997, the petitioners filed the proposed charter amendment with the City Clerk of the City of New York. The proposal was supported by petitions containing 75,214 signatures.

At the request of the City Clerk, the Board of Elections reviewed the petitions to determine whether they contained the requisite number of valid signatures. By a Clerk's report the Board of Elections reported that only 41,736 of the signatures were valid.

By letter dated September 12, 1997, the Clerk refused to certify the petition, taking the position that (1) only 41,736 signatures were valid, and (2) the subject matter of the proposed amendment was inappropriate for an initiative under Section 40 of the New York City Charter.

This proceeding ensued, seeking, inter alia, an order declaring the initiative petition valid, proper, and legally effective for inclusion on the ballot for the November 4, 1997 general election.

Discussion
The Authority of the City Clerk

While the question of whether a sufficient number of valid signatures support the petition can only be addressed at a line-by-line analysis in the context of a hearing, I must first address as threshold issues the questions of whether the Clerk has the authority to pass upon the propriety of the subject matter of a proposed ballot initiative, and if so, whether he was correct in concluding that the subject matter of the petition at issue was inappropriate for a Section 40 ballot initiative.

The procedural provision of Section 40 of the New York City Charter reads as follows.

§ 40. Amendment of charter. Amendments to this charter may be adopted by any of the following methods:

* * *

(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 petition. The petition may be made upon separate sheets and the signatures of each shall be authenticated in the manner provided by the Election Law for the authentication of designated petitions. * * * If within ten days after the filing of such petition a written objection thereto be filed with the office of the city clerk, the Supreme Court or any justice thereof of the first, second or eleventh judicial district shall determine any question arising thereunder and make such order as justice may require.

(emphasis supplied).

Thus, a procedure for challenging such a petition by filing written objections is set forth, and as petitioners point out, Section 40 contains no provision giving the City Clerk the authority to refuse to certify such a proposal, absent filed objections, on the basis of a subject matter deficiency. Petitioners suggest that because Section 40 delimits the manner in which the subject matter of a ballot initiative may be challenged, absent a challenge raised by timely filed objection, there is no right or proper procedure by which to reject the proposal.

Despite the absence of any provision in Section 40 giving the City Clerk any discretion or authority to reject a proposed ballot initiative based on a subject matter deficiency, prior case law has on several occasions approved a City Clerk's rejection of ballot initiative petitions on the basis of their subject matter (see, Matter of Juntikka v Cuevas, 232 AD2d 301, 648 NYS2d 558 [lst Dept 1996]; Matter of Silberman v Katz, 54 Misc 2d 956, affd 28 AD2d 992 [lst Dept 1967]; Connelly v Stand, 192 Misc 872, affd 274 App Div 877, affd 298 NY 658).

Petitioners argue that these cases are both wrongly decided and inapposite in that the arguments raised here were not made in those cases. However, this court is constrained by controlling law to reject the petitioners' suggestion that in the absence of timely filed objections, no further challenge may properly be heard by the court. The Appellate Division, First Department, held in Matter of Juntikka v Cuevas, supra, that

"The County Clerk correctly rejected the initiative petitions inasmuch as the proposed amendments are not the proper subject of a referendum"

(648 NYS2d 559, supra). Implicit in that straightforward statement is the recognition that the City Clerk is authorized to reject initiative petitions which he believes are not the proper subject of a referendum. The addition of a requirement that the City Clerk must himself file objections with his own office, would be an unnecessary elevation of form over substance in view of these prior holdings.

I therefore turn to the more substantive question of whether the City Clerk was correct in his determination that the amendment proposed here is not proper under Section 40.

Subject Matter Appropriate for Charter Amendment

The portions of Section 40 of the City Charter relating to the intended substance of such amendments read as follows:

§ 40. Amendment of charter. Amendments to this charter may be adopted by any of the following methods:

1. By local law adopted in accordance with the provisions of this charter.

2. By vote of the electors of the city upon the petition of electors of the city, an amendment may be adopted.

(a) in relation to the manner of voting for the elective officers of the city or any of them, or

(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.

* * *

(emphasis added).

Obviously, petitioners' proposed Charter amendment purports to fall under provision 2(b), authorizing an initiative "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, . . . ." The question to be answered here is whether the petitioners' proposal, by seeking to create a new Department of Animal Affairs, and by seeking further to dictate the obligations of that department and its Commissioner, falls within the intended framework of petitions authorized by Section 40.

The petitioners' proposed initiative creates a new office, and to some extent can be understood to implicitly provide for a transfer of powers to the newly created office from a previously existing one (the Department of Health). However, in addition to transferring to the new office some powers currently assigned to and exercised by the Department of Health, it assigns to the new proposed office powers and substantial obligations not previously held by any municipal agency.

The petition, in providing for a Department of Animal Affairs, headed by a commissioner of animal affairs to be appointed by the mayor, contains substantial specifications. As to the level of experience to be required of a commissioner, it requires "at least five years' experience either as the executive head or officer of a human organization devoted to animal welfare, such organization having an annual income of at least $150,000, or at least six years' experience as the executive head of a municipal animal care and control system"). It then goes on to list the powers and duties of the commissioner, among them, inter alia:

* to promote and provide humane education programs

* to administer dog and horse licensing and collect fees therefor;

* to provide animal transport for the protection and needs of animals in New York City;

* to provide vehicles that patrol each borough throughout the City, rescuing animals that are lost, strayed, abandoned or in distress and impounding animals designated at large by law, seven days a week;

* to provide mobile emergency medical service that immediately responds to calls about animals at large in distress, twenty-four hours a day, seven days a week;

* to license, regulate and enforce, as the exclusive city agency, the health, safety and well being of horses, including, without limitation, the administration of the Retail Horse Licensing and Protection Law * * *;

* to promulgate standards for the humane treatment of impounded animals;

* to operate, maintain, promote and provide a full-service animal shelter in each borough for lost, strayed, abandoned, injured or dangerous animals, to be open twenty-four hours a day, seven days a week, to provide animals with health screening and medical treatment, provide a preventive disease control program, promote and provide a volunteer program, promote and provide twenty four hour computerized lost and found services that will communicate with other animal facilities; promote and provide animal adoption, with pre- and post-adoption counseling, seven days a week.

The petition further provides for appointment of three deputy commissioners, with responsibility, respectively, for field services, shelter services, and humane education, the latter charged with, among other things, creating and distributing educational materials, maintaining a full resource center, and training K-12 classroom educators. Additionally, it provides for the formation of an 11-member commission of animal affairs within the department, the members to be appointed variously by the commissioner, the borough presidents, the City Council, the Police Commissioner, and other heads of municipal agencies.

The respondents contend that the above includes substantial new obligations, such as programs of community education and provision of emergency services for animals; they also point out that the proposal, to be implemented, would certainly impose a substantial additional financial obligation on the municipal budget. They contend that these problems bring the proposal well outside the bounds of what is authorized by Section 40.

How is the court to determine the bounds of what is proper under Section 40?

At the outset, it is critical to acknowledge that ballot initiatives are a form of direct action by the people. In this jurisdiction, the rule of government by representation is the norm and government by direct action is an exception, infrequently permitted (see, Burke v Kern, 287 NY 203, 211; Matter of McCabe v Voorhis, 243 NY 401, 413). In this respect, this state differs from some other jurisdictions, in which the voters have broad law making powers, through initiative and referendum. For instance, in California the broad power of initiatives gives the voters the final word, and functions as a limitation upon the power of that state's legislature (see, Carlson v Cory, 139 Cal App 3d 724; see also Cal. Const. Art. 11, §§ 8(a), 9(a); see generally, Opinion of Corporation Counsel No. 10-86, 8/1/86). Similarly, broad referendum powers exist in several other states such as Arizona, Massachusetts and Michigan (see, Durbin and Reimer, Initiative, Referendum and Recall: A Resume of State Provisions [1976]). Because New York's Constitution, statutes and case law reflect a policy of limiting the powers of the electorate to initiate or vote on laws to certain stated circumstances (see, Opinion of Corporation Counsel No. 10-86, supra), such initiatives, to be permitted to proceed, must fall squarely and fully within the framework provided by the provision authorizing it (see, Burke v Kern, supra).

The provisions of Section 40 are short and simple. The Section specifically permits the creation of a new office, and does not, as the respondents suggest, specifically limit such creation to situations where another office is concomitantly being abolished. Indeed, the Section includes no further explanation as to the appropriate bounds of creating a new office. In order to shed light on whether any such bounds must be imposed in the context of a Section 40 ballot initiative proposal, I therefore turn to materials which offer some legislative history.

The Report of the New York City Charter Revision Commission from 1936 reflects that when it undertook to formulate the City Charter in the basic form which it still currently possesses, its provision for ballot initiatives was intended to be

"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"

(Tanzer, Report of the New-York City Charter Revision Commission, at 516). It stated that the charter then being newly revised would contain "only the essentials of the organization of each department and, in as general language as possible, its essential powers, leaving to the code the large amount of administrative detail which is contained in the existing charger and other law" (see, Tanzer, Report of the New York City Charter Revision Commission, supra, at 507). The only specific example provided by the Commission's report of a subject amenable to Section 40 amendment was that of a referendum creating a "city manager" form of government, in which the powers of the elected mayor would be transferred to a city manager appointed by the City Council (Id. at 486).

One case further illustrates circumstances in which a ballot initiative was approved as proper in substance (see, Burke v Kern, 287 NY 203). That initiative provided for the abolishment the office of Sheriff and Register in each of the five counties within New York City, and the transfer of their duties and functions to new officers to be called the City Sheriff and City Register, who were to be appointed by the Mayor after competitive civil service examination (with a few remaining duties transferred to the City Department of Correction). That proposal clearly abolished certain elective offices, created new appointive offices, and provided for the transfer of powers from the abolished offices to the newly created offices and to other existing agencies.

Case law reflects that such ballot initiatives must be closely scrutinized, and rejected where they undertake to accomplish more than the change in the structure of City government contemplated by Section 40. For instance, in Matter of Connolly v Stand (192 Misc 872, 3d 274 App Div 877, affd 298 NY 658), the court refused to place before the voters an initiative to create a new Department of Transportation and to reestablish a five-cent transit fare. The court there noted that the amendment would violate a statute giving the Mayor and the Board of Transportation the power to set fares.

Section 40 has also been held inapplicable where a petition, ostensibly seeking to create a new office, in fact creates an entirely new post, with new powers and obligations, and new budget expenditure requirements, in order to forward the proponents' national-political agenda. In Matter of Silberman v Katz (54 Misc 2d 956, affd 28 AD2d 992 [lst Dept 1967]) the court considered an initiative to establish a new municipal office, to be known as the "Anti Vietnam War Coordinator", which provided for the scope of the officer's powers and duties, and for a salary of ten thousand dollars to be obtained from general taxation from real estate. In rejecting the petitioners' position in Silberman, the court held that the formulation of their application as one seeking the establishment of a new City office was merely a "transparent attempt" to avoid case law prohibiting legislative referenda and the use of the municipal electoral processes "for the purposes of obtaining expressions of opinion on matters beyond the effective power of the local body" (Matter of Silberman v Katz, supra at 960).

The proposal at issue here is a far cry from any provisions of the current New York City Charter. The Charter, as it stands now, contains no provisions specifically concerning animals. It simply confers upon the Department of Health and the Board of Health the obligation to promote and protect the health of the people of the City. The City's animal control activities are largely conducted pursuant to the authority of Chapter 115 of the Laws of 1894, as amended (reprinted as a note following McKinney's Agriculture and Markets Law § 107). The law, inter alia, authorizes the city to maintain animal shelters, and provides that the power may be exercised by an agency designated by the mayor. It also provides for the department of health of any city having a population of over two million to prescribe standards for the humane treatment of impounded animals and for regular inspection to ensure compliance with the standards (Id. at § 10).

By removing from the mayor the discretionary power to designate the appropriate agency to maintain shelters, etc., the proposed charter amendment would in effect supercede state law. Such silent alterations of state law are disapproved (see, Fossella v Dinkins, 66 NY2d 162; Matter of Reuss v Katz, 43 Misc 2d 921, 21 AD2d 968).

When the provisions of the City Charter as it now stands are compared with the provisions of the proposed ballot initiative, it is clear that the petitioners' proposal is not intended merely to "revise the structure of the city's government along broad lines." Rather, it seeks to impose a long and detailed set of mandates upon city government in order to ensure the protection of animal health and safety. In its level of detail, the proposal significantly exceeds the Charter's purpose of providing "only the essentials of the organization of each department" (see, Tanzer, Report of the New York City Charter Revision Commission, at 507). Admirable as such goals are, the contents of the proposed amendment go far beyond, and are inconsistent with, the intended purpose of City Charter section 40.

There is a further basis advanced by respondents for the conclusion that the petitioners' proposal falls outside the bounds intended by Section 40. Respondents argue that Section 40 was not intended to cover amendments that would involve new expenditures of public funds. Petitioners respond that in the absence of any direction in the provision requiring a revenue plan for funding the proposal, no such plan is necessary to comply with Section 40. They contend that if the drafters of Section 40 had so desired, they could have included a provision such as is contained in Municipal Home Rule Law § 37, which requires an adequate financing plan to be included with a charter amendment proposal made under that statute.

I conclude that the respondents are correct. The failure to include in Section 40 a direction requiring a ballot initiative to contain provision for financing the proposal, is not because its proponents intended to adopt a procedure by which the voters could institute a large and expensive government program without concern for how to pay for it. Upon consideration of not only the words of the Section, but also the words of the Committee which formulated the Section, it is clear that no provision for a financing plan was included because it was contemplated that any initiative under the Section would be limited to broad, general proposals of structural alterations in the way the city government's obligations were divided up.

Although motivated by the best of intentions, the proposals of the petitioners simply cannot be effectuated by the means they have adopted.

Finally, I reject the contention that the respondents' refusal to certify the initiative constitutes a violation of the petitioners' Constitutional rights to free speech and due process.

Accordingly, the petition is denied and the proceeding is dismissed.

This constitutes the decision and order of the court.

Dated: September 30, 1997

/s/ Justice David B. Saxe
Supreme Court of the State of NY, 1st JD

Attorney for Petitioners:
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019-6092
(212) 259-8000
Of Counsel:
Wayne A. Cross
Robert A. Milne
Caryn S. Glasser

Attorney for Respondents:
Paul A. Crotty
New York City Law Department
100 Church Street
New York, NY 10007
(212) 788-0873
Of Counsel:
Spencer Fisher,
Stephen Ackerman
Masako C. Shiono