Lawsuit Update: The Referee’s Report
Motion to Reject Referee’s Report Filed Today after Referee Recommends Against Us
The much-anticipated report from the referee in our case was issued this past Monday.
While rejecting the City’s claim that the petition fails to give voters adequate notice of the petition’s purpose and effect, and also rejecting the City’s attempt to have the case dismissed on a procedural technicality, the referee recommended against us on two other issues, finding that the petition is “merely advisory,” and that the petition’s financing plan is invalid. The report can be read here.
This is by no means the final say. Today we filed a Motion to Reject the Referee’s Report (click here to read it). This puts the case in the hands of New York Supreme Court Justice Paul Wooten, who will likely set a hearing for early next week. We expect Justice Wooten to issue a decision by mid-week, leaving about 9 days before the October 3rd cutoff for either side to appeal.
The Referee’s Report and Our Motion to Reject
The referee stated early in his report: “After reviewing the parties respective papers, the subject Petition, the Verified Petition and the proposed amendment to the Charter, it appears to the Referee that NYCCAN has learned from its failings in the 2009-litigation.” (This is the same referee who handled the past ballot initiative).
But, despite this acknowledgment, the referee ultimately recommended against us on two issues: whether the petition amounts to a “merely advisory” referendum, in other words a symbolic opinion poll, and whether the petition’s financing plan is valid.
We are pleased to report that the referee rejected the City’s main argument for the petition being “merely advisory,” namely that it seeks to reinvestigate the events of 9/11, a matter the City considers to be primarily of national and international concern, which thus, in the City’s opinion, renders the petition “merely advisory.” The referee stated: “The collapse of 7 World Trade Center, unlike [WTC 1 and 2], is a fundamental local concern.
However, the referee then proceeded to find the petition “merely advisory” on two other very questionable grounds.
First, the referee stated that the DOB already has the authority to investigate building collapses; therefore, the charter amendment would not “expand” the DOB’s authority. In truth, there is no standard stating that a charter amendment must “expand” an agency’s authority to avoid being “merely advisory.” The referee erroneously uses this false standard while ignoring the obvious change to the City Charter: the DOB currently has the option to investigate high-rise collapses; the High-Rise Safety Initiative would make such investigations mandatory.
Second, the referee found that an investigation of WTC 7’s collapse would be “materially limited” and “impossible to effectuate” because the initiative’s grant of subpoena power would extend only to City employees. Amazingly, the referee misconstrued the grant of subpoena power, reading it to apply only to City employees, when in fact the language in paragraph 4 of the petition states plainly that it would apply to everyone except non-City public officials, consistent with state law.
Given the power to subpoena anyone other than non-City public officials, and given the wealth of publicly available information that would form the basis of any technical analyses, it is simply absurd to claim that an investigation of WTC 7’s collapse is “impossible to effectuate.”
Both of the referee’s reasons for recommending against us are deeply flawed, and we believe they can be decisively dismantled in court. We encourage you to read our Motion to Reject the Referee’s Report for more information on how we are countering the referee’s findings.
The Fight Will Continue
We want to reiterate that the referee’s report is not the final say. Indeed, there is a long way to go. We remain optimistic of convincing Justice Wooten to reverse the referee’s recommendations against us, and of winning on appeal.
While it is premature to consider seriously at this stage, we have also not ruled out the possibility of mounting another effort for the next general election if we win on the “merely advisory” issue and lose solely on the financing plan.
It is important to note that never in the history of ballot initiatives in New York City has a charter amendment that cost money to implement been found by the courts to have a valid financing plan. Despite the fact that it’s never been done before, we believe that a valid financing plan can be written if our current financing plan is found to be invalid. But right now, we are putting every effort into demonstrating that the current financing plan is valid, and that the proposed charter amendment is by no means “merely advisory.”
As always, we thank you for standing behind us in this vitally important pursuit. We will keep you posted on developments in the coming days.