The following is the complete text of the Shelter Reform Action Committee's Verified Petition 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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VERIFIED PETITION FOR EMERGENCY RELIEF UNDER ARTICLE 16 OF THE ELECTION LAW, ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES, AND 42 U.S.C. § 1983

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Petitioner JULIE VAN NESS, being duly sworn, deposes and avers as follows:

This special proceeding is brought under Sections 16-100 and 16-116 of the Election Law, Article 78 of the Civil Practice Law and Rules, and 42 U.S.C. Section 1983 to secure an order requiring respondents to comply with Section 40 of the New York City Charter (the "Charter"), to cease and desist from infringing on petitioners' rights of free speech and due process protected under the New York Constitution, and the First and Fourteenth Amendments to the U.S. Constitution, and for various other relief, as further described herein.

THE PARTIES

Petitioner Shelter Action Reform Committee (the "Committee") is an unincorporated association committed to effecting -- through an initiative petition under Section 40 of the New York City Charter (the "proposed amendment") -- a change in the structure of the City government, specifically, to create a new office, and associated department, of Animal Affairs.

Petitioner Julie Van Ness, the treasurer of the petitioner Committee, is a duly registered voter, is a signatory of the subject initiative petition, and is personally knowledgeable of the facts underlying this action. Petitioner brings this action on behalf of all 75,214 signatories of the initiative petition (collectively, the "petitioners.")

Respondent Carlos Cuevas (the "Clerk") is the City Clerk of the City of New York, and is joined in his official capacity. The Clerk is responsible, inter alia, for handling petitions submitted pursuant to Section 40 of the City Charter.

Respondent New York City Board of Elections (the "Board") maintains the voter registration records of the City of New York and is responsible, inter alia, for handling petitions submitted under the Election Law.

Upon information and belief, the Board assists the Clerk with respect to petitions submitted pursuant to Section 40 of the Charter, and provided, or is providing, such assistance in connection with the instant initiative petition.

Upon information and belief, the Board has participated in the evaluation of the Petition, and may possess relevant records in connection with same.

BACKGROUND

According to a report dated June 1997, entitled Dying for Homes: Animal Care and Control in New York City, prepared by the New York City Council Committee on Contracts (hereinafter "Report") (Petitioners' Appendix Tab D):

-- responsibility for overseeing animal "care and control" in the City currently resides in the New York City Department of Health. Staff Report, at 1-2.

-- the Department of Health subcontracts management and operation of the cityís animal shelter system to a third party contractor Center for Animal Care & Control ("CACC"). Id. at 2-4.

-- the city's 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." Id. at 40.

-- 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.

-- 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.

-- 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.

-- the CACC has a poor adoption rate. Id. at 31.

-- 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.

-- 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.

-- the CACC has failed to implement effective health and grooming protocols. Id. at 29.

-- 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.

The Committee believes that the Department of Health is sufficiently burdened in addressing the multiplicity of issues more directly pertaining to human health, and that a separate city office (and associated department) should be established to be charged with overseeing the responsible and humane treatment of animals in the City.

The Committee also believes -- based in part upon the Council Report -- that CACCís management of the Cityís animal control system (since 1994) has been inadequate, and in some instances inhumane.

In light of, inter alia, the issues set forth in the preceding paragraphs, the Committee prepared the proposed amendment to the City Charter that, if enacted, will create a new office -- the Commissioner of Animal Affairs -- to oversee a Department of Animal Affairs. (App. Tab C). The Commissioner, who would be required to have substantial experience in managing an organization committed to the humane treatment of animals, would be responsible for, inter alia: caring for lost, stray and injured animals, implementation and maintenance of an animal control and shelter system, dog and horse licensing, and promotion of humane education. Id.

FACTS COMMON TO ALL COUNTS

Section 40 of the Charter provides that amendments to the Charter may be adopted by "vote of the electors of the city upon the petition of electors of the city." NYCC § 40(2).

Section 40 sets forth the procedure to be followed for placing proposed Charter amendments on the ballot:

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 designating petitions. The several sheets so signed and authenticated when fastened together and offered for filing shall be deemed to constitute one petition. A signature made earlier than one hundred twenty days before the filing of the petition shall not be counted. 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. Such proceedings shall be heard and determined in the manner prescribed by the election law in relation to judicial proceedings thereunder.

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)(c)(1)-(2).

On or about May 5, 1997, the Committee, assisted by numerous supporters, began procuring signatures in support of the Proposed Amendment pursuant to Section 40.

On September 2, 1997, the Committee filed with the Clerk the initiative petition supporting placement of the proposed amendment on the ballot at the next city general election, currently scheduled for November 4, 1997. The initiative petition consisted of 75,214 signatures, well in excess of the 50,000 signature threshold found in Section 40. To the best of petitionersí reasonable belief, these signatures are in full compliance, in form and substance, with the requirements of Section 40.

On August 27, 1997, the American Society for the Prevention of Cruelty to Animals ("ASPCA") endorsed the proposed amendment. (App. Tab F).

On September 4, 1997, City Council Member Jerome X. O'Donovan endorsed the proposed amendment. (App. Tab G).

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 purporting to disallow 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," 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 excised by the Mayor and the City's Department of Health under State law." (App. Tab A).

Under the Election Law, the Board is required to circulate the first of the absentee ballots -- those directed to military personnel -- 32 days in advance of the general election. N.Y. Elec. Law § 10 108 (McKinney 1997). Since the next general election is scheduled for November 4, 1997, the military ballots therefore must be circulated on October 3, 1997.

Logic dictates that the Board will require at least several days in advance of the October 3 deadline to print and prepare the military ballots for circulation. Subtracting 4 days from the October 3 statutory deadline for the military ballots, yields September 29, 1997 as the approximate deadline for the submission of the proposed amendment to the Board.

Upon information and belief, unless the initiative is certified for inclusion on the ballot in sufficient time to be received by the Board on or before the Boardís printing deadline, petitioners will be foreclosed from access to this yearís ballot.

The failure to secure a place on the ballot for the proposed amendment would cause serious irreparable harm to petitioners. For example, perhaps most importantly, petitioners (and the people of New York City) will be denied the opportunity to institute changes that petitioners believe to be urgently required in the city. Also, the critical mass of support (including the endorsements of the ASPCA and Council Member OíDonovan), publicity, and momentum that petitioners have accumulated at present will be lost, and there is no guarantee that they will be reproducible at some point in the future.

Upon information and belief, in rejecting the petition, the Board purported to have conducted a line-by-line analysis of the signatures, and determined that 33,125 signatures were invalid (out of the 75,214 originally submitted) (App. Tab N).

All of the statements in this paragraph are made on information and belief. Upon learning of the Board's action, petitionersí counsel promptly telephoned Mr. Edward F. O'Malley, General Counsel to the Clerk. In that conversation, petitioners' counsel requested immediate access to any and all documentation in the Board's possession reflecting its review of the signatures. Milne Aff. 5 (Show Cause Order, Tab 2). Petitioners' counsel also noted that petitioners believe they are entitled to specifications as to the basis of the objection for each contested signature, consistent in form and substance with the Board's own rules concerning objections to designating petitions. (App. Tab I). Mr. O'Malley directed petitionersí counsel to contact Mr. Daniel De Francesco, Executive Director of the Board, for further information concerning documentation of the Board's review. Milne Aff. 7 (Show Cause Order, Tab 2).

All of the sentences in this paragraph are made on information and belief. Petitioners' counsel promptly contacted Mr. De Francesco on the afternoon of September 12. Mr. De Francesco informed counsel that the Board was copying all of the "worksheets" and related material reflecting its assessment of the signatures. Id. at 8. This material was produced to petitioners at approximately 7:00 p.m. that day. Id.

All of the sentences in this paragraph are made upon information and belief. The material produced by the Board consisted of (1) four large boxes of "worksheets," upon which the Board reviewers noted any "deficiencies" they believed they found with the signatures; (2) reports purporting to tabulate the total number of objections on a per-volume, and grand-total basis (see App. Tab N), for a copy of those reports); and (3) the written instructions given to the Board's reviewers for conducting the review of this petition (see App. Tab O, for the instructions). In a conversation with petitioners' counsel on Sunday, September 14, Mr. De Francesco again stated that the material provided by the Board on Friday represented the sum and substance of the Board's work. Milne Aff. 15 (Show Cause Order, Tab 2).

All of the sentences in this paragraph are made upon information and belief. In order to test the validity of the Board's tabulation of the total number of signatures it claimed were defective (33,125 signatures), several people working under the direction of petitioners' counsel (most volunteers) carefully reviewed each "worksheet" and tabulated each objection actually noted. Milne Aff. 12 (Show Cause Order, Tab 2). (In the case of objection to Subscribing Witnesses, the reviewers counted each signature on that page as contested). Id. The results of the review reveal that the grand total of signatures actually contested by the Board is only 21,557. Id. at 13. This is far less than the 33,125 signatures that the Board's summary sheets contend were objected to. (App. Tab N). Thus, since the Board concedes that 74,861 signatures were submitted, this leaves over 53,304 signatures as to which the Board asserted no objection, well over the 50,000 required by Section 40.

All of the sentences in this paragraph are made upon information and belief. The gross errors and omissions revealed by petitionersí "double check" are apparent from the face of the worksheets. 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. Tab P (collecting several 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 provided by the Board. Milne Aff. 15 (Show Cause Order, Tab 2). (To the extent the Board intended to assert objections to signatures on any missing pages, it is precluded from doing so by its failure to produce the pages.)

All of the sentences in this paragraph are made upon information and belief. In addition, despite not having access to the Board's voter registration records over the weekend, petitioners were able to establish that at least eight of the subscribing witnesses designated as "Not Registered" by the Board, in fact are registered voters. See Kaskel Aff. (App. Tab X); Mar Aff. (App. Tab Y); Podber Aff. (App. Tab Z); A.ÝDerezeas Aff. (App. Tab V); G.ÝDerezeas Aff. (App. Tab U); Bowen Aff. (App. Tab AA); Schwartz Aff. (App. Tab W); Mackey Aff. (App. Tab S). Petitionersí preliminary review indicates that the reinstatement of these subscribing witnesses has the effect of reinstating approximately 3,500 signatures. Milne Aff. 20 (Show Cause Order, Tab 2).

Upon information and belief, petitioners devoted at least 200 person-hours over the weekend (9/13-14) evaluating respondent's "worksheets."

The materials produced by the Board do not comply with the Board's own rules concerning objections to designating petitions. (App. Tab I).

All of the sentences in this paragraph are made upon information and belief. In the course of separate conversations with petitioners' counsel on September 12, both Mr. De Francesco and Mr. O'Malley indicated that the Board would refuse to provide petitioners access to the voter registration records on an extended-hour basis without a court order.

Upon information and belief the Clerk has not "filed" any objection with its office, as required by Section 40.

COUNT I-- SIGNATURE VALIDITY

Petitioner repeats and realleges each of the proceeding paragraphs as if fully set forth herein.

To the best of petitionersí knowledge, the Clerkís contention that over 33,000 signatures are "invalid" is false.

Accordingly, the Clerkís refusal to certify the Petition is in violation of Section 40 of the Charter.

COUNT II -- FAILURE TO PROVIDEADEQUATE BASES FOR ALLEGED SIGNATURE INVALIDITY

Petitioner repeats and realleges each of the preceding paragraphs as if fully set forth herein.

The "documentation" provided by respondents of their signature review is grossly inadequate, under the Board's own rules concerning objections to designating petitions.

Respondents have had ample opportunity to supply petitioners with the requested information concerning the allegedly invalid signatures in the initiative petition.

In refusing to provide petitioners with any documentation supporting its allegations of invalid signatures, respondents violated petitionersí rights to due process under the New York Constitution and the Federal Constitution, as well as Section 40 of the Charter.

COUNT III -- SUBJECT MATTER OF PETITION

Petitioner repeats and realleges each of the preceding paragraphs as if fully set forth herein.

Section 40 specifically authorizes the use of the petition mechanism for amendments: ". . . creating a new [city] office or offices, including if so provided a transfer of powers to the newly created office or offices . . . " N.Y.C.C. § 40(2)(b).

The Proposed Amendment falls within the subject matter of amendments authorized by Section 40.

Respondents' refusal to certify the Petition on the ground that its subject-matter is outside the scope of Section 40 is without basis, and therefore constitutes a violation of Section 40.

COUNT IV -- RESPONDENTS' ACTIONS ARE ULTRA VIRES

Petitioner repeats and realleges each of the preceding paragraphs as if fully set forth herein.

Section 40 speaks only of third party objections: Section 40 states that third party objections should be filed with the Clerk: "If within ten days after the filing of [a Section 40] petition a written objection thereto is 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." NYCC § 40(2)(c)(1).

Respondents are without authority to question anything other than facial deficiencies in the signatures absent a third party objection.

Respondents are without authority unilaterally to oppose the proposed amendment on the basis of its subject matter.

Upon information and belief, no third party has filed an objection with the Clerk.

Respondents' action in refusing to certify the initiative petition on the basis of purportedly "unregistered" signatures was ultra vires, in the absence of third party objections.

Respondents' action in refusing to certify the initiative petition on the basis of its subject matter -- without promptly seeking judicial review of that decision -- was ultra vires and in violation of Section 40.

COUNT V -- NEW YORK STATE CONSTITUTION

Petitioner repeats and realleges each of the preceding paragraphs as if fully set forth herein.

Respondents' refusal to certify the initiative petition violates petitionersí rights of free speech and due process guaranteed by the New York State Constitution.

COUNT VI -- U.S. CONSTITUTION

Petitioner repeats and realleges each of the preceding paragraphs as if fully set forth herein.

Respondents' refusal to certify the initiative petition violates petitionersí rights of free speech and due process guaranteed by the First and Fourteenth Amendment of the United States Constitution.

PRAYER FOR RELIEF

WHEREFORE, Petitioners hereby pray for the following relief:

An order precluding respondents from contesting the validity of the signatures in the initiative petition;

An order declaring the initiative petition valid, proper and legally effective for inclusion on the ballot of the next general election of the City of New York;

An order directing, requiring and commanding respondents to take all appropriate steps to place the initiative petition on the ballot of the next general election of the City of New York, currently scheduled for November 4, 1997;

An order declaring that respondents are without authority unilaterally to oppose the proposed amendment on the basis of its subject matter;

In an order declaring that respondents' refusal to certify the initiative petition on the basis of purportedly "unregistered" signatures was ultra vires and in violation of Section 40 of the Charter.

An order declaring that respondents' refusal to certify the initiative petition violates petitioners' rights of free speech and due process guaranteed by the New York State Constitution, and requiring respondents to cease and desist such violation forthwith;

An order declaring that the respondents' refusal to certify the initiative petition violates petitioners' rights of free speech and due process guaranteed by the First and Fourteenth Amendments of the United States Constitution, and requiring respondents to cease and desist such violation forthwith;

An order requiring respondents to pay petitionersí attorneys fees and costs of litigating this matter; and

Such other relief as the Court deems just and proper.

If this Court elects not to immediately grant petitioners the relief prayed for in the preceding paragraphs, in the alternative, petitioners pray for the following relief:

(a) an order requiring respondents to deliver (by hand),

with respect to the signatures it contends are invalid, a detailed report -- in form and substance consistent with the Board's rules concerning objections to designating petitions, Rule G -- setting forth the bases for the alleged invalidity of each challenged signature, together with all material supporting that report; and

with respect to the subject matter, a detailed written explanation of the bases for the subject-matter objection;

(b) an order

according petitioners the right to take appropriate discovery to rebut the objections;

granting petitioners access to both the computerized and paper voter registration records (maintained by the Board) on a seven day per week basis, Monday through Friday, at least until 9:00 p.m., and on weekends at least until 7:00 p.m.;

scheduling an expedited hearing to resolve the asserted objections (consistent with the completion of necessary discovery);

requiring respondents to include the proposed amendment on the ballot, including absentee ballots, for this yearís general election, pending final resolution of this matter; and

requiring respondents to pay petitioners' attorneys fees and costs of litigating this matter.

Dated: New York, New York
September ___, 1997

/S/ Julie Van Ness

Sworn to before me this
_____ day of ______, 1997.
_____________________
Notary Public

DEWEY BALLANTINE
Attorneys for Petitioner Julie Van Ness
1301 Avenue of the Americas
New York, New York 10019-6092

Petitioners' Appendix hereinafter is referenced as "App. Tab ___."

Petitioners do not concede that 74,861 signatures is the correct total of signatures collected; as noted above the petition is supported by 75,214 signatures, based on my reasonable information and belief.

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.