Roth v. Cuevas
| Citation | 158 Misc.2d 238,603 N.Y.S.2d 962 |
| Parties | In the Matter of the Application of Allen H. ROTH, individually and on behalf of all signers of a petition filed pursuant to Section 37 of the Municipal Home Rule Law, and as Secretary of New Yorkers for Term Limits, Inc., Petitioner, v. Carlos CUEVAS, City Clerk of the City of New York, and the Board of Elections of the City of New York, Respondents, For an Order Pursuant to Sections 16-100 and 16-116 of the Election Law and Section 37(5) of the Municipal Home Rule Law declaring valid the initiative petitions submitted by Petitioner. |
| Decision Date | 22 September 1993 |
| Court | United States State Supreme Court (New York) |
O. Peter Sherwood, Corp. Counsel (John Pines, of counsel), New York City, for respondents.
Townley & Updike (Douglas C. Fairhurst, Steven I. Himelstein and Zvi N. Raskin, of counsel), New York City, for petitioner.
Petitioner Allen H. Roth ("Roth"), Secretary of NEW YORKERS FOR TERM LIMITS, INC., moves pursuant to Sections 16-100 and 16-116 of the Election Law and Section 37(5) of the Municipal Home Rule Law, to have this court (i) declare valid, proper and legally effective the initiative petitions filed with the Respondent Carlos Cuevas, City Clerk of the City of New York ("City Clerk"), which seek to amend the New York City Charter to establish a limit on the number of consecutive terms of office that various elected officials can serve; (ii) to direct the City Clerk to transmit to the City Council of the City of New York a certificate that the initiative petitions comply with all the requirements of law; and (iii) to direct the City Clerk to transmit to the Co-Respondent Board of Elections of the City of New York ("Board") the proposed local law. The petition is granted.
Municipal Home Rule Law ("MHRL") § 37 establishes the procedure by which a proposal to amend a city charter made by qualified electors of the city can be placed on the ballot for public referendum.
The first step is the submission to the City Clerk of an initiative petition signed by a minimum of thirty thousand qualified voters. MHRL § 37(2). The Clerk must then certify whether the petition complies with the applicable legal requirements and transmit his findings by certificate to the City Council. MHRL § 37(5). See, MHRL § 24(1).
If the Clerk certifies that the initiative meets all the requirements of law, then the City Council has two months to either adopt the initiative or to submit it to the voters. MHRL § 37(7). If the Council fails to act on the first petition, the initiative may be placed on the ballot by filing an additional petition signed by a minimum of fifteen thousand qualified electors who did not sign the original petition. MHRL § 37(7).
If the additional petition complies with all the requirements of law, the City Clerk must transmit it "to the election officers charged with the duty of publishing the notice of such election, and the legislative body shall provide for suitable publication thereof and publicity thereon for the information of interested voters". MHRL § 37(9).
The City Council is not bound by the certification of the Clerk that the proposed local law is not valid. Adams v. Cuevas, 133 Misc.2d 63, 64, 506 N.Y.S.2d 614 (Sup.Ct., NY Co.), aff'd, 123 A.D.2d 526, 506 N.Y.S.2d 501 (1st Dep't), aff'd on other grounds, 68 N.Y.2d 188, 507 N.Y.S.2d 848, 499 N.E.2d 1246 (1986). However, such certification affects the rights of the initiative's sponsor and may be challenged in a proceeding in this Court. Id. at 64-65, 506 N.Y.S.2d at 616. See MHRL § 37(5).
Following these procedures, on May 18, 1993, Roth filed a petition in the office of the City Clerk, signed by 64,647 individuals, seeking to place on the ballot by public referendum a measure to amend the New York City Charter by imposing limitations on the number of consecutive terms that could be held by the Mayor, Public Advocate, Comptroller, Borough Presidents, and members of the City Council. See, Exhibit A annexed to Verified Amended Petition. If enacted, the local law would prohibit these officials from serving in the same office for more than two full consecutive terms or, in the case of a city council member, more than one four year term, unless at least one full term has elapsed since that person last held that office. Id. Roth's stated purpose in proposing the petition is to "ensure that elected representatives are 'citizen representatives' who are responsive to the needs of the people and are not career politicians." Petitioner's Memorandum of Law at p. 4.
In accordance with MHRL § 37(5), the City Clerk commenced a review of the petition in order to determine whether it complied with "all the requirements of law". On June 17, 1993, the City Clerk certified that the petition did not comply with all requirements of law, on the grounds that there was no statutory authority for the local law proposed in the petition, and that the charter amendment, if enacted, would unconstitutionally infringe on the voters' right to choose candidates of their choice and the right of incumbents to be elected to public office. See, Exhibit C annexed to Verified Amended Petition.
This proceeding was commenced pursuant to MHRL § 37(5) to challenge the City Clerk's certification.
On July 27, 1993, after this proceeding was commenced, and pursuant to MHRL § 37(7), Petitioner filed an additional petition which contained 64,964 new signatures to amend the charter by adding the same language as was proposed in the first petition. See Exhibit B annexed to Verified Amended Petition. On August 26, 1993, the City Clerk indicated, once again, that the subject matter did not comply with "all the requirements of law". See, Exhibit 7 annexed to Amended Verified Answer.
It is not disputed that, upon review by the City Clerk, the number of valid signatures in support of each petition exceeded the minimum required.
Article 9 of the NY Constitution includes a Bill of Rights for local governments and recognizes that "[E]ffective local self-government and intergovernmental cooperation are purposes of the people of the state". NY Const. Art. 9, § 1. Article 9, § 2(a) of the NY Constitution provides:
The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution.
The purpose of home rule provisions of the constitution is to secure the right of cities to choose their officers without hindrance from the state and to preserve their privilege of continuing to administer those powers of self-government which they enjoyed before the adoption of the constitution, provided such powers remain local in nature. People v. Village of Pelham, 215 N.Y. 374, 109 N.E. 513 (1915).
MHRL § 50(1) provides:
It is the intention of the legislature by this chapter to provide for carrying into effect provisions of article nine of the constitution and the statute of local governments and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article. (emphasis supplied)
MHRL § 10(1)(i) provides:
[E]very local government shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government.
Even where local laws do not relate to a city's "property, affairs or government", MHRL § 10(1)(ii)(a)(1) empowers a city to adopt and amend local laws, which are not inconsistent with constitutional or state law, relating to:
[t]he powers, duties, qualifications, number, mode of selection and removal, [and] terms of office ... of its officers and employees ... (emphasis added)
Article 9, § 2(c) of the New York State Constitution contains provisions virtually identical to MHRL § 10(1)(i) and 10(1)(ii)(a)(1).
The Court holds that the term limit legislation proposed here relates to New York City's "affairs" and/or "government" as well as to the "terms of office" of its "officers". This holding is consistent with the purpose of the home rule provisions of the constitution and the legislative intent of the MHRL. See, NY Const. Art. 9, § 1; MHRL § 50(1); People v. Village of Pelham, supra. Therefore, New York City is authorized to enact the term limit legislation proposed in the voter initiative petitions pursuant to the enabling language of both the New York State Constitution and the MHRL.
The proposed term limit law is also a proper subject of public referendum pursuant to MHRL § 37. MHRL § 37(1) permits the enactment of local laws by voter referendum if the local law "amend(s) a city charter (however extensively )" (emphasis supplied). The proposed law, which clearly relates to the "affairs" and/or "government" of the City is an "amendment" within the meaning of MHRL § 37.
Respondents' first defense is that the proposed local law is beyond the local legislative authority granted pursuant to the State Constitution and the MHRL. This defense must fail.
Both the New York Constitution and the MHRL mandate that local government shall have power to adopt and amend local laws provided such laws are:
not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government.
Const. Art. 9, § 2(c); MHRL § 10(1)(i).
The Constitution also provides that "rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed". Const. Art. 9, § 3. Consistent with the constitutional provision requiring a liberal construction of the powers granted to municipalities, MHRL also mandates that its provisions "shall be liberally construed". MHRL § 51; Yonkers Commission on Human Rights v. City of Yonkers, 654 F.Supp....
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