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Dear Friends,
We are tremendously
disappointed that Justice Wooten did not reverse the referee's
recommendations, in particular, the referee's poorly reasoned conclusion
that the petition amounts to a "merely advisory" referendum.
Wooten did call the City's
attempt to have the case dismissed on a procedural technicality
"irrational and misplaced, particularly, when the result would be the
voter disenfranchisement of more than 30,000 registered voters, without
due process." But we also expected him to weigh in on the legal issues,
which he did not, instead simply deferring to the referee.
We Have Decided Not to Appeal
Based on the advice of our legal
team, we believe our chances of winning on appeal are slim. Our priority
at this point is to preserve our ability to attempt another ballot
initiative in the future – if, after evaluating the lessons learned from
this effort, we determine that a revised petition has a good chance of
overcoming the seemingly insurmountable legal hurdles. For reasons
discussed below, appealing would only endanger our chances of success in
the future, while offering virtually no chance of success now.
Therefore, after long and careful
consideration, we have decided not to appeal, which therefore brings an
end to the High-Rise Safety Initiative campaign.
We are so deeply grateful to the
thousands of people who contributed financially, and to the thousands
more who promoted and cheered on our efforts. Together we came very
close to giving New York City voters the opportunity to vote for a new
WTC 7 investigation, and to mandate that any future high-rise collapses
be properly investigated. In so doing, we elevated our message in the
eyes of many who previously did not take it seriously, or knew nothing
about WTC 7, and we forced the issue into the public dialogue in a big
way, even if that dialogue continues to be dominated by politicans and
reporters still too clueless or afraid to question what they've been
told about WTC 7.
Today we bring the High-Rise Safety
Initiative to a close knowing that it represents yet another major step
forward in the journey toward truth and accountability.
New York's Ballot Initiative Process Is Not Voter Friendly
As many of you know by now, the
ballot initiative process in New York State is limited and
extraordinarily difficult to navigate successfully. The only form of
citizen-initiated referenda allowed at the local level are those that
amend a city’s charter. As such, a law that would be more appropriate
for a city’s administrative code cannot be proposed through a ballot
initiative.
Furthermore, proposed charter
amendments must be substantially related to an existing provision of the
city charter; they must also include their own revenue source if they
cost money to implement; and they must not be “merely advisory.” Beyond
that they must be consistent with all other state and federal laws. Over
the years, the courts have made it increasingly difficult to meet each
of these requirements.
Most importantly, the process requires voters to go through the work of collecting tens of thousands of signatures prior
to submitting the petition language and having it certified as legally
valid. In almost every other state with an initiative process, the
government certifies the language before the petition can be circulated.
In some places, such as California, the government even assists in
drafting the language. In New York State, it’s the opposite. The law
discourages rather than encourages citizen-initiated referenda.
The result is that only two ballot
initiatives out of the dozen or so that have been attempted in the past
50 years have successfully made it onto the ballot in New York City, and
no initiative that has cost money to implement (and therefore required a
financing plan) has ever made it onto the ballot. Because of the long
odds of success, ballot initiatives are not attempted very often in New
York City, and usually only by groups believing that they have no other
avenue for accomplishing their goals.
With full awareness of this
context, we determined that we had a better chance of achieving our
goals with a local ballot initiative than through any other means. And
so, using the lessons learned from the 2009 ballot initiative, and
working with the most accomplished election attorneys in New York City,
we set out to draft a petition that would give us the best possible
chance of overcoming the customary legal hurdles.
Where We Fell Short; Where We Believe the Court Fell Short
As it turned out, our financing
plan was not bulletproof. While drafting the petition, we and our
attorneys did not anticipate the problems that would eventually become
clear – namely, that the .9% surcharge on construction permit fees could
be construed as a “tax” that the City is not authorized to impose,
rather than a “fee” (which the City can impose without state approval),
and that having a fund to set aside moneys to be used in future years
could be found to violate the balanced budget requirement of the
Financial Emergency Act, which prohibits the City from rolling over
unused funds from year to year.
To be sure, we made credible
arguments on both issues, and on the petition’s severability. However,
the court did not find in our favor. Our decision not to appeal is based
in part on the fact that we are very unlikely to win on the financing
plan at the appellate level.
We do, however, believe that
Referee Crespo and Justice Wooten seriously erred in finding the
petition to be “merely advisory.” Through convoluted and erroneous
reasoning, Referee Crespo somehow concluded that enactment of the
High-Rise Safety Initiative would, in essence, have no material effect
on the City of New York.
To arrive at this conclusion, he ignored the fact that the petition’s obvious effect was to require
the Department of Buildings to investigate the collapse of WTC 7 and
any future high-rise collapses. Under current law, the Department is not
required to conduct these investigations, but has the discretion
to do so. Referee Crespo also concluded, based on an erroneous reading
of the petition’s subpoena power and without factual basis, that an
investigation of WTC 7’s collapse “cannot be effectuated.” Sadly,
Justice Wooten simply went along with the absence of logic and erroneous
findings proffered by the referee.
In short, we believe the “merely
advisory” issue is winnable on appeal. But, given the short timeframe
for that appeal to take place (at most a few days) and the likelihood of
losing on the issue of the financing plan, it is almost inevitable that
the appellate division would simply affirm the lower court’s decision.
This would have the consequence of cementing the court’s finding on the
“merely advisory” issue, thus making it impossible to attempt another
ballot initiative with a revised financing plan in the future. While we
do not know at this time if we will pursue another ballot initiative, we
do not want to make another attempt impossible by appealing now when we
have virtually no chance of winning.
A Monumental Achievement
While we at NYC CAN are of course
very saddened by the court’s decision, we view the campaign as a
monumental achievement that has served to bring ever-greater legitimacy
and attention to our cause. The mainstream press took significant notice
of our campaign, and we grabbed the attention of the New York City
Mayor and City Council leadership. Further, tens if not hundreds of
thousands more citizens are now aware of the collapse of WTC 7. We
believe that what we have achieved will be a steppingstone to greater
accomplishments in the future – whether directly leading the way to a
third, successful ballot initiative, or channeling the support that has
been mobilized toward a new type of effort.
We would like to thank everyone who
supported the High-Rise Safety Initiative along the way. Our
achievements were made possible only because thousands of people came
together to support us. Without you, there would have been nothing.
Thank you very much for being a part of our effort.
Onward!
Ted Walter
Executive Director, NYC CAN
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