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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK------------------------------------------------------------------------xCHRISTOPHER BURKE, CIERAN CANAVAN, JEANCANAVAN, ANTHONY BADILLO, and SHARRONCLEMONS, individually and on behalf of theapproximately 52,000 signers of a petition filed pursuant toSections 37 and 24 of the New York State Municipal HomeRule Law,Petitioners,- against –MICHAEL McSWEENEY as City Clerk of the City of New York and Clerk of the City Council of New York andthe BOARD OF ELECTIONS IN THE CITY OF NEWYORK,Respondents. ------------------------------------------------------------------------xIndex No. 09/110779Justice Edward H. Lehner
RESPONDENT MICHAEL MCSWEENEY’SREPLY MEMORANDUM OF LAW INFURTHER SUPPORT OF HIS MOTION TODISMISS THE PETITION
Respondent
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Michael McSweeney, City Clerk and Clerk of the City Council(hereinafter, the “Clerk” or “McSweeney”), submits this memorandum of law in further supportof his motion to dismiss the petition and in reply to Petitioners’ Memorandum of Law(“Petitioners’ Memo”). Petitioners’ Memo fails to overcome the arguments set forth in theClerk’s opening papers and, in fact, actually highlights many of the very reasons why thePetition is defective and, therefore, ineligible for placement on the ballot. The Clerk, through
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The Board of Elections in the City of New York, a respondent herein, takes no position on themerits of this proceeding.
 
this memorandum will address the deficiencies in petitioners’ arguments, albeit briefly, so as tonot repeat the arguments set forth in his opening papers.
ARGUMENTPETITIONERS’ MEMO UNDERSCORES ANDHIGHLIGHTS THE VERY DEFICIENCIES INTHE PETITION POINTED OUT BY THECLERK THAT RENDER IT ILLEGALA.
 
9/11 investigations are not a local matter.
Petitioners’ memo undermines their strained effort to discredit the Clerk’sargument that a primary purpose of the proposed municipal commission will be to reviewnational security, military, and intelligence matters, all of which are entrusted to the federalgovernment. Petitioners’ lengthy recitation of the supposed failings of the federal investigationinto the 9/11 attacks highlights the national thrust of this referendum and the Commission’smission (Petitioners’ Memo, pp 3 – 12). Because the thrust of the Petition seeks anational/international investigation and therefore does not primarily serve a municipal purpose, itis clear that the proposed law exceeds the intended scope of matters of municipal concern undersection 37 of the MHRL. As a result, because the far-ranging investigation would be improperand beyond the power of the City, placement on the ballot would result in an unlawful advisoryreferendum similar to the one on the Vietnam War that was rejected by the Court in
Silberman
.
 Matter of Silberman v. Katz
, 54 Misc.2d 956 (Sup. Ct. N.Y. Co. 1967),
aff’d 
, 28 A.D.2d 992 (1
st
 Dep’t 1967). Petitioners’ other efforts to discredit the Clerk’s other arguments as to why thissubject is beyond the City’s jurisdiction, most of which seek to distinguish the settled case lawon the theory that they did not concern an event that occurred locally, though having profound
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national and international implications, are equally unavailing for the reasons set forth in theClerk’s opening papers.
B.
 
The “financing plan” is not a plan.
Petitioners’ contend that the Clerk’s conclusion that the financing plan is legallydeficient rests upon a single, slender reed – that is, that all of the cases cited by and relied uponby the Clerk involved public financing, whereas the Petition calls for the exclusion of all publicmonies. This distinction, too, is without a difference. The “plan” relies on unspecified donors of unspecified amounts of money. As set forth at length in the Clerk’s opening papers, the“financing plan” is just too vague to pass muster. Petitioners emphasize that no public moniesshall be accepted, but do not state what would happen if the Commission were to run out of money. Moreover, the Petition does not state how much money would have to be raised in orderto constitute the “realization of the full funds specified in our anticipated budget.” Petition, ¶ 7.This is further exacerbated by the proviso that the “Commission shall have the authority to act upto a maximum of 5 years from the date of their creation . . . unless delayed by legal oradministrative procedure, in which case the investigation shall continue until matters areresolved.” Petition, ¶ 6. This proviso essentially allows the Commission to exist for anundefined period of time, thereby making the ultimate budget indeterminable. In sum, becausethere is no ability to determine the ultimate budget required by the proposed Commission, thereis no means of ensuring that any funds raised (if they indeed exist) will be made available inamounts sufficient for an investigation of uncertain scope that will last for an undefined time,and the existence of the Commission would undoubtedly compel the City to expend its humancapital and other resources to support it, the Petition’s “financing plan” is insufficient as a matterof law.
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