SCANNED ON 8 11 2009

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

PRESENT: LOUIS CRESPO PART 86R
SPECIAL REFEREE

INDE%NO.
CHRISTOPHER BURKE, ET AL.,
MOTION DATE
v - ’. MOTION SEQ. NO.. Interim Otder
MICHAEL McSWEENEY, CITY CLERK OF THE Clr/i
OF NEW YORK, ET AL.,
MOTION CAL. NO. A ,
I

The followlng papem, numbered 1 to were rdad on thls motlon tolfor

Notlce of Motlonl Order to Show Cause -Affldavltp - Exhlblta ...

-
Answerlng Affldavlb Exhlblts

APPEARANCES:
For Plaintiffs For Defendants
Mr.Dennis P. McMahon, Esq.
195 Broadway I Assistant Corporation CouseI
New York, NY 10007 1 Corporation Counsel of the City of New York
(212) 337-4250 100 Church Street
h i s.mm&on@ho mggmeuter8,corq New York, NY 10007
(212) 788-0849
I .
-,hW,nV= - V

By order of the Hon., Alfred Lehner, dated August 3,2008, the issue of validating the
plaintiffs’ petition seeking the placement of a referendum onthe November 2009 General Election
ballot (the “Petition”) was referred to the Special Referee to hear and report. In brief, this is an action
to, among other things, invalidate the determhation by the City Clerk and Clerk of the Council of the
City of New York, Michael McSweeney (the “Clerk”) that not less than 24,664 of the signatures
~ comprising the Petition are invalid. On August 3,2008, the Special Referee conference the matter
with the attorneys to discuss the subject matter of the dispute as well as to schedule a substantive
conference to discuss the scheduling of .a he-by-line, submission of a bill of particulars, and
contemplated legal arguments.

The salient facts giving rise to this action are as follows. The plaintiffs submitted the
Petition to the Clerk for review of the validity of the more than 50,000 signatures obtained and to then
certify the Petition and place the same before the Council of the City of New York (the “Council”) for
considerationand adoption in accordance with section 37 of the New York Municipal.Home Rule Law
(“MHRL,”). In brief, by way of the Petition, the plaintiffs seek to amend the New York City Charter
(the “Charter”) by adding a local law for the creation of a Commission of no more than fifteen (15 )
commissioners to investigate the terrorist attack at the World Trade Center on September 11,2001.
The Petition seeks to create and fund a “NYC Independent Commission with Subpoena Power to
Conduct a Comprehensive and Fact-Driven Investigationof All Relevant Aspects of the Tragic Events
of September 1 1,2001 and Issue a Report” Burke “Verified Petition,” July 29,2009, Exhibit A
[attachment “NYC Initiative Petition To Amend NYC Charter - under 6 37, New York Municipal
Home Rule Law”]). The signatures were gathered by the New York City Coalition for Accountability
(“NYC CAN”).

On or about June 24,2009, NYC Can filed the Petition with the Clerk. On or about

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July 24,2009, the Clerk “certified” to the CoUrjcil and copied one Ted Walter (NYC CAN) his review

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of the Petition, which wqs conducted “by the ard of Elections of the City of New York.” The Clerk
concluded that fhhe Petition contained 26,OO qualified signatures, less than the 30,000 qualified
signatures required pursuant to the MHRL. *TheClerk also concluded that not less than 24,664

$
signatures contained in the Petition were unq ified signatures and that the “primaryreason for such
invalidity was the failure of the signers to be re ‘steredand qualified to vote in the last general election
conducted in the City of New York precediyg the filing of the Petition.” Accordingly, the Clerk
concluded the “failure to meet this threshold, [30,000 qualified signatures] render[ed] the Petition
invalid (Burke “Verified Petition,” July 29,2909, Exhibit A WcSweeney 07/24/09 Letter, p 11).

In addition, the Clerk informed the Council and copied the plaintiffs that the Petition
was invalid for several other reasons:

(1) federal government had jurisdiction over an investigation bto the September 11,

purpose of the petition process of *e L;

2001-attacks and establishing a local mrnission far exceeded the proper scope and

(2) the petition failed to provide adequate financing plan for the Commission as
required under the MHRL;
(3) the method of designating Commissioners did not comply with state laws relating
to election or appointment of public officers as well as residency requirements of
New York City;
(4) the Petition overreaches in its attempt to confer law enforcement and
prosecutorial powers; and
( 5 ) the subject of *e proposed amendment to the Charter does not relate to an
existing Charter provision m required under the MHRL 8 37 (&J 2).

This action then ensued by Order to Show’Cause,dated July 29,2009 (m, Order to
Show Cause, 07/29/09). The plaintiffs seek to validate the Petition and requested the appointment
of a Special Referee to conduct the validation of signatures (3.,
pl ). The plaintiffs, individually and
op behalf of the signors of the Petition, maintain they have gathered mbre than 30,000 valid
signatures required to submit the Petition to the Council of the City ofNew York pursuant td section
37 of the MHRL,. The plaintiffs contend more than 52,000 signatures were obtained (Burke
“Verified Petition,” July 29,2009, p 2,B 3) md upon a review of the Petition, coupled with Board
of Election records (“BQE”), the Court will find that the plaintiffs have met the 30,000 valid
signature threshold. Indeed, plaintiffs contend that 1,333 signatures were not considered by the
Clerk or BOE (id.,p 3 , y lo),
In response to the plaintiffs’ application, the defendants Clerk and BOE contend that
the Petition is invalid for the above noted reasons (ktzinger 08/3/09 Affirm.). Ln addition, the
attorney for defendants affirms that as a result of the Clerk’s review it was determined that the
Petition contains only 50,667 signatures (n.b. disputing the additional 1,333 signatures raised by the
plaintiffs) of which not less than 24,644 were invalid and not more than 26,003 were valida., p 2,
7 3). The attorney also raised the issue of how the signatures were gathered, procedural and
substantive flaws of the Petition as well as a reservation af right to “offer proof that the Petition was
permeated with fraud and therefore invalid” (u., p 3).

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On August 6,2009, the Special Rjeferee and the attorneys for the parties held a second
conference at which time procedural and subst&tive issues were discussed.

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At the conference, the attorney or the City and BOE informed both the Court and
plaintiffs’ attorney of the availability of termi als at three BOE locations: (1) 6 stations at Varick
Street; 5 stations at Broadway; and 8 stations at dams Street (Brooklyn),that would allow plaintiffs
to do a line-by-line review of the copied detition (consisting of more than 50-volumes of
approximately 1,000 signatures on each) to be provided by the defendants at the designated station
requested by plaintiffs.
It was also learned that the Clerk and BOE reviewed more than 50,000 signatures
over a one week period with the assistance of approximately 40 BOE employees and/or temporary
works during a 35-hour period. Accordingly, tt was agreed that the plaintiffs’ attorney would seek
the assistance of 10-volunteers to review thoSie signatures deemed invalid (24,644) and that the
review would commence Monday, August 19, 2009 at the designated stations. The plaintiffs’
attorney agreed to provide notice to the defqndants’ attorney (Mr. Kitzinger) o f the designated
strrtions to be made available no later than 11:PO A.M., Friday, August 7,2009 so that the attorney
.- could have the specific volumes pulled and &livered by close of business August 7,2009 at the
designated stations. The plaintiffs are to coI@encc the line-by-line review of the invalided 29,644
signatures at approximately 9:OO A.M., Monday August 10,2009 (and to closing 5:OO P.M.) and
continue day-to-day for approximately two weeks. The attorneys are to confer with each other
during the line-by-line review and the two shall then conference with the Special Referee no later
than Friday, August 14,2009 (before 4:OO P.M.), as to the status of the line-by-line review.

During the conference, issues itgarding legal arguments as to the Petition were also
raised and discussed. It is agreed that the legd,argwnentscontemplated f i ~the p ies are reserved
pending the line-by-line review, subject to further order of the Special Refere veryshould

- the line -by-line continue in to the second week, then the attorneys shall conference& & s u . . l
wgumtnts as to the validity of the Petitioq dth the Special Referee.

Finally, should plaintiffs’ attorney be substituted

second attorney be retained on their behalf, svch notice of
Referee forthwith and a conference scheduled.

Accordingly, the parties are ORPERED to commence the line-by-line

Monday, 9:30 A.M., August 10,2009; and it is further ORDERED that the plaintiffs’ atto
< designated the stations to conduct the samd no later than 1 1:00 A.M., August 7, 2009; &t it is
further ORDERED that such line-by-line shall go day-to-day and for the period of two we& ,
hereafter unless extended by further Order of the Court; and it is further ORDERED the attorneys
shall conference with the Special Referee as to the status o f the same on Friday, August 14,2009 at
71 Thomas Street, New York, NY no later than 4:OO P.M., or as

This constitutes the interim order of the Court.

Dated: Aualrtt 7.2009
SPECIAL REFERE
Check one: FINAL DISPOSljTION

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