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\ d fl SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: LOUIS CRESPO PART 85R
co SPECIAL REFEREE

INDEX NO. I1077912009

CHRISTOPHER BURKE, ET AL.,
MOTION DATE August 14,2009
-v - MOTION SEQ. NO. Interim Order
MICHAEL McSWEENEY, CITY CLERK OF THE CITY \
OF NEW YORK, ET AL,,
MOTION CAL. NO. NIA

The following papers, numbered Ito

Notice of Motlonl Order to Show Cause -

-
Answerlng Affidavits Exhibits
Repiylng Affidavits

Cross-Motio
APPEARANCES:
For Plaintiffs Yi
For Defen ants
Mr. Dennis P. McMahon, Esq. Mr, Stephen Kitzinger, Esq.,
195 Broadway Assistant Corporation Counsel
New York, NY 10007 Corporation Counsel of the City of New York
(212) 337-4250 100 Church Street
deimis.mcmahoii(u7th9msonreuters.corn New York, NY 10007
(212) 788-0849
$kitzinger@,law.nyc.gov

By order of the Hon., Edward H. Lehner, dated August 3,2008, the issue of validating
the plaintiffs’ petition seeking the placement of a referendum on the November 2009 General Election
ballot (the “Petition”) was referred to the Special Referee to hear and report. The facts giving rise to
this action are set out in the Interim Order of the Special Referee, dated August 3, 2009 and are
incorporated by reference herein. This matter was initially conference with the attorneys on August
3, and a follow up conference took place on Thursday, August 6,2009. Following that conference an
Interim Order was issued directing that the parties commence the line-by-line review of the
approximate 24,644 signatures certified by the defendant Clerk as invalid (on the ground they
signatories were unqualified voters), no later than Monday, 9:30 A.M.,August 10,2009 and that this
review shall continue day-to-day for a two-week period. It was also ordered that the plaintiffs’
attorney designate the stations maintained by the BOE (to conduct the review) no later than 11:OO
A.M., August 7, 2009 and that the attorneys would appear before the Special Referee to discuss the
status of the line-by-line review on Friday, August 14, 2009 at 71 Thomas Street, New York, NY.

On Friday, August 14,2009, the attorneys appeared and the issue of the status of the
line-by-line was discussed as well as the furnishing of a bill of particulars by the plaintiffs with respect
to those signatures they claim are valid signatures and should be counted as they constitute qualified
voters. In addition, an amended verified petition with respect to the defendants’ claims of legal
insufficiencies, service of an answer to the same or motion to dismiss, and plaintiffs’ opposition was
also discussed. Finally, in view of the possibility (no matter how slight) that the 30,000 threshold may
be met by the petitioners, the issue of a substantive line-by-line review of the disputed signatures by
the Special Referee was also conference.

Lastly, there is the issue of time, as understood by the Court, the plaintiffs filed their
petition with the Clerk on Wednesday, June 24,2009 and the Clerk certified the petition was invalid

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for various reasons on July 24, 2009. The plaintiffs (signatories thereon) commenced this action to
validate signatures on Wednesday, July 29,2009. This matter was referred to the Special Referee on
August 3,2009. It appears under the applicable statute (MHRL $5 24 and 37) that the Council of the
City of New York (“Council”) has until August 24, 2009 to act on the petition, that is, propose that
it be placed on the ballot as a referendum in the November 2009-election (the defendants maintain the
proposed petition is a mandatory referendum as it curtails the executive power of the Mayor). No
action is contemplated from the Council and, hence, the plaintiffs must complete their line by line
review, submit their proof, then attend along with the defendants a line-by-line review by the Special
Referee of those signatures they maintain are valid and sufficient to meet the 30,000 threshold. Ln the
interim, as contemplated under the statute, regardless of meeting the 30,000 threshold by September
4,2009, and in the absence of an adoption by the Council, the plaintiffs must file an additional 15,000
new qualified voters signatures by such date with the Clerk of the City of New York. Based on all of
the above the following is the Special Referee’s Interim Order:

(1) it is ORDERED that the plaintiffs shall continue the line-by-line review of the
petition and shall complete the same no later than Friday, August 21,2009 at the close of business
(5:OO P.M.);
(2) it is further ORDERED that the plaintiffs shall file with the Special Referee and
serve the defendants’ attorney with an Amended Verified Petition for the purpose of objecting to the
legal arguments raised in the Clerk’s certification, that is, the five ( 5 ) articulated legal contentions (see,
Burke “Verified Petition,” July 29, 2009, Exhibit A [McSweeney 07/24/09 Letter, p 2 [(I) federal
government had jurisdiction over an investigation into the September 1 1,2001-attacks and establishing
a local commission far exceeded the proper scope and purpose of the petition process of the MHRL;
(ii) the petition failed to provide adequate financing plan for the Commission as required under the
MHRL; (iii) 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; (iv)
the Petition overreaches in its attempt to confer law enforcement and prosecutorial powers; and (v) the
subject of the proposed amendment to the Charter does not relate to an existing Charter provision as
required under the MHRL 5 37]), no later than Friday, August 21, 2009, by 5:OO P.M., by hand
delivery to the Special Referee at 71 Thomas Street, New York, New York;
(3) and it is further ORDERED the plaintiffs shall serve their Bill of Particulars no
later than Friday, August 28,2009, by 5:OO P.M., by hand delivery and in like fashion as noted above;
(4) and it is further ORDERFiD the defendants shallserve their answer to said amended
verified petition or in the alternative a Motion to Dismiss no later than Friday, September 4,2009
by 5:OO P.M., by hand delivery to the Special Referee and plaintiffs counsel;
( 5 ) and it is further ORDERED the issue of scheduling further legal submission shall
be telephone conference on Tuesday, September 8,2009 at 4:OO P.M., with the Special Referee;
(6) and it is further ORDERED that the line-by-line review by the Special Referee
shall commence on Tuesday, September 8, 2009, 9:30 A.M., at the designated BOE office to be
scheduled hereafter and go day-to-day until September 18,2009, unless further ordered by the Court;
(7) and it is further ORDERED that the attorney for the defendants shall obtain the
latest date the BOE can comply with a final determination favorable to the plaintiff.
This constitutes the int

Dated: August 14, 2009

Check one: 0 FINAL xNON-PTNAL DISPOSITION

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