Sinawski v. Cuevas
| Decision Date | 02 July 1986 |
| Citation | 133 Misc.2d 72,506 N.Y.S.2d 396 |
| Parties | In the Matter of Gary SINAWSKI and Janet Weigel, individually and on behalf of all signers of a petition filed with Respondent pursuant to Section 37 of the Municipal Home Rule Law, Petitioners, v. Carlos CUEVAS, Clerk of the City of New York, Respondent, For an order declaring valid, proper and legally effective a petition filed pursuant to Section 37 of Municipal Home Rule Law on |
| Court | New York Supreme Court |
Harry Kresky, New York City, for petitioners.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Elizabeth A. Bryson and Antonia Levine, of counsel), for respondent.
Petitioners have brought this proceeding for an order in the nature of mandamus directing the Clerk of the City of New York (the Clerk) to certify as valid and transmit to the City Council of the City of New York (the City Council) an initiative for a proposed amendment to the Charter of the City of New York (the Charter).
Petitioners are the sponsors of an initiative which seeks to amend chapter 49 of the Charter §§ 1100, et seq.). Chapter 49 is entitled "Officers and Employees" and its provisions relate to the duties of both elected and appointed officials and employees of the City, e.g., the appointment of deputy department heads ( § 1101); restrictions on holding more than one civil office ( § 1115); and forfeiture of office ( § 1116). The proposed local law would amend Chapter 49 by adding a new section, numbered 1126, which would provide for the removal of elected officials from office upon the direct vote of the electorate, i.e., a recall election (the recall initiative).
The procedure for placing an initiative on the ballot is set forth in Section 37 of the Municipal Home Rule Law. As an initial step a sponsor of an initiative must file with the Clerk a petition signed by thirty thousand registered voters. The Clerk then has fifteen (15) days in which to examine the initiative and the petition and to transmit a certification to the legislative body (Municipal Home Rule Law § 24 subd. (1)). In that certification the Clerk must state whether the initiative and petition comply with all the requirements of law. In the event that the Clerk certifies that the initiative and petition fail to comply, subdivision 5 of section 37 requires the Clerk to state specifically in what respect the initiative and petition fail to comply. In the matter at hand the petitioners filed the petition with the Clerk on July 2, 1986. By letter dated July 18, 1986, the Clerk sent his certification to the City Council. In that certification he stated that the petition did not comply with the requirements of law because it failed to contain the required number of valid signatures. Thereafter by letter dated August 1, 1986, the Clerk transmitted a supplemental certification which raised additional objections, viz., the "petition contains illegal and ambiguous provisions and is not a permissible subject for referendum because recall procedures are not authorized by state law."
The factual issue as to the number of valid signatures was referred to a Special Referee to hear and report. During the course of those hearings, the respondent conceded that the petition contained the requisite number of valid signatures. This was so reported by the Referee and his report is hereby confirmed and adopted. The respondent continues to raise two objections in law to the recall initiative: first, that it is not a proper subject for an amendment to the Charter and second, that, as drafted, the proposed local law is illegal, ambiguous, vague and incapable of enforcement if adopted in its present form. Petitioner maintains that the proposed local law complies with all the requirements of law and urges the court to find that by his failure to raise his legal objections in his certification in a timely manner, the Clerk has waived his right to raise those objections in this proceeding.
As indicated, this argument springs from subdivision 1(a) of section 24 of the Municipal Home Rule Law. The relevant sentence is:
"The clerk shall examine each such petition so filed with him and shall, not later than fifteen days after the date of its filing, transmit to the legislative body a certificate that he has examined it and has found that it complies or does not comply, as the case may be, with all the requirements of law."
The issue thus presented is whether this language is mandatory or directory. As a general rule of statutory interpretation a provision which directs an official to do an act within a specific time will be considered directory if the statute does not make time of the essence (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 172). Nothing in Municipal Home Rule Law section 24 (subd. (1)(a)) indicates that the Clerk will be divested of jurisdiction or that his authority to certify the validity of a proposed local law exists only for that fifteen day period. Nor should the failure of the Clerk to raise an objection to the validity of a proposed local law be deemed a waiver which will transform an invalid initiative into a valid one. The Clerk does not have the authority to waive the requirements of the statute (Matter of Reuss v. Katz, 43 Misc.2d 921, 252 N.Y.S.2d 546, affd. 21 A.D.2d 968, 252 N.Y.S.2d 871; Matter of Fossella v. Dinkins, 128 Misc.2d 822, footnote 1 at 823, 493 N.Y.S.2d 947, affd. 114 A.D.2d 340, 493 N.Y.S.2d 859, affd. 66 N.Y.2d 162, 495 N.Y.S.2d 352, 485 N.E.2d 1017, but see, Matter of De Santis v. Brown, 37 A.D.2d 865, 325 N.Y.S.2d 60). In addition subdivision 8 section 37 of the Municipal Home Rule Law permits the Clerk to raise all objections anew when the sponsor submits the second petition of fifteen thousand signatures required by statute. Thus the court is persuaded that this language is directory only and does not preclude the Clerk from raising objections or transmitting a supplemental certification at any time.
The court also notes that if the Clerk were to be precluded from raising legal objections at this time, petitioner would be required to obtain fifteen thousand signatures for the second petition. This would involve considerable time, effort and expense. Several times during the initial hearing before the Referee on the validity of the thirty thousand signatures counsel for petitioner asked the Court for a ruling directing respondent to concede the required number of signatures. On each application petitioners complained of the enormous amount of time and effort being expended by their volunteers. The Court should not ignore this fact and should not...
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