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Motion to Reject Referee's Report Filed Today after Referee Recommends Against Us
Dear Supporters,
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 NYC CAN 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 opinon, render's the petition "merely advisory." The referee
stated: "The collapse of 7 World Trade Center, unlike [WTC 1 and 2], is a
fundmental local concern."
However, the referee then proceeded to find the petition "merely advisory" on two other very questionable grounds.
Flawed Reasoning
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.
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