After two long weeks of waiting, New York Supreme Court Justice Paul Wooten finally issued a decision in our case late yesterday afternoon, affirming the court-appointed referee’s report in its entirety, and ruling that the High-Rise Safety Initiative will not appear on the November 4, 2014 ballot.
We are tremendously disappointed that Justice Wooten did not reverse the referee’s recommendations, in particular, the referee’s poorly reasoned conclusion that the petition amounts to a “merely advisory” referendum.
Wooten did call the City’s attempt to have the case dismissed on a procedural technicality “irrational and misplaced, particularly, when the result would be the voter disenfranchisement of more than 30,000 registered voters, without due process.” But we also expected him to weigh in on the legal issues, which he did not, instead simply deferring to the referee.
We Have Decided Not to Appeal
Based on the advice of our legal team, we believe our chances of winning on appeal are slim. Our priority at this point is to preserve our ability to attempt another ballot initiative in the future – if, after evaluating the lessons learned from this effort, we determine that a revised petition has a good chance of overcoming the seemingly insurmountable legal hurdles. For reasons discussed below, appealing would only endanger our chances of success in the future, while offering virtually no chance of success now.
Therefore, after long and careful consideration, we have decided not to appeal, which therefore brings an end to the High-Rise Safety Initiative campaign.
We are so deeply grateful to the thousands of people who contributed financially, and to the thousands more who promoted and cheered on our efforts. Together we came very close to giving New York City voters the opportunity to vote for a new WTC 7 investigation, and to mandate that any future high-rise collapses be properly investigated. In so doing, we elevated our message in the eyes of many who previously did not take it seriously, or knew nothing about WTC 7, and we forced the issue into the public dialogue in a big way, even if that dialogue continues to be dominated by politicans and reporters still too clueless or afraid to question what they’ve been told about WTC 7.
Today we bring the High-Rise Safety Initiative to a close knowing that it represents yet another major step forward in the journey toward truth and accountability.
New York’s Ballot Initiative Process Is Not Voter Friendly
As many of you know by now, the ballot initiative process in New York State is limited and extraordinarily difficult to navigate successfully. The only form of citizen-initiated referenda allowed at the local level are those that amend a city’s charter. As such, a law that would be more appropriate for a city’s administrative code cannot be proposed through a ballot initiative.
Furthermore, proposed charter amendments must be substantially related to an existing provision of the city charter; they must also include their own revenue source if they cost money to implement; and they must not be “merely advisory.” Beyond that they must be consistent with all other state and federal laws. Over the years, the courts have made it increasingly difficult to meet each of these requirements.
Most importantly, the process requires voters to go through the work of collecting tens of thousands of signatures prior to submitting the petition language and having it certified as legally valid. In almost every other state with an initiative process, the government certifies the language before the petition can be circulated. In some places, such as California, the government even assists in drafting the language. In New York State, it’s the opposite. The law discourages rather than encourages citizen-initiated referenda.
The result is that only two ballot initiatives out of the dozen or so that have been attempted in the past 50 years have successfully made it onto the ballot in New York City, and no initiative that has cost money to implement (and therefore required a financing plan) has ever made it onto the ballot. Because of the long odds of success, ballot initiatives are not attempted very often in New York City, and usually only by groups believing that they have no other avenue for accomplishing their goals.
With full awareness of this context, we determined that we had a better chance of achieving our goals with a local ballot initiative than through any other means. And so, using the lessons learned from the 2009 ballot initiative, and working with the most accomplished election attorneys in New York City, we set out to draft a petition that would give us the best possible chance of overcoming the customary legal hurdles.
Where We Fell Short; Where We Believe the Court Fell Short
As it turned out, our financing plan was not bulletproof. While drafting the petition, we and our attorneys did not anticipate the problems that would eventually become clear – namely, that the .9% surcharge on construction permit fees could be construed as a “tax” that the City is not authorized to impose, rather than a “fee” (which the City can impose without state approval), and that having a fund to set aside moneys to be used in future years could be found to violate the balanced budget requirement of the Financial Emergency Act, which prohibits the City from rolling over unused funds from year to year.
To be sure, we made credible arguments on both issues, and on the petition’s severability. However, the court did not find in our favor. Our decision not to appeal is based in part on the fact that we are very unlikely to win on the financing plan at the appellate level.
We do, however, believe that Referee Crespo and Justice Wooten seriously erred in finding the petition to be “merely advisory.” Through convoluted and erroneous reasoning, Referee Crespo somehow concluded that enactment of the High-Rise Safety Initiative would, in essence, have no material effect on the City of New York.
To arrive at this conclusion, he ignored the fact that the petition’s obvious effect was to require the Department of Buildings to investigate the collapse of WTC 7 and any future high-rise collapses. Under current law, the Department is not required to conduct these investigations, but has the discretion to do so. Referee Crespo also concluded, based on an erroneous reading of the petition’s subpoena power and without factual basis, that an investigation of WTC 7’s collapse “cannot be effectuated.” Sadly, Justice Wooten simply went along with the absence of logic and erroneous findings proffered by the referee.
In short, we believe the “merely advisory” issue is winnable on appeal. But, given the short timeframe for that appeal to take place (at most a few days) and the likelihood of losing on the issue of the financing plan, it is almost inevitable that the appellate division would simply affirm the lower court’s decision. This would have the consequence of cementing the court’s finding on the “merely advisory” issue, thus making it impossible to attempt another ballot initiative with a revised financing plan in the future. While we do not know at this time if we will pursue another ballot initiative, we do not want to make another attempt impossible by appealing now when we have virtually no chance of winning.
A Monumental Achievement
While we at NYC CAN are of course very saddened by the court’s decision, we view the campaign as a monumental achievement that has served to bring ever-greater legitimacy and attention to our cause. The mainstream press took significant notice of our campaign, and we grabbed the attention of the New York City Mayor and City Council leadership. Further, tens if not hundreds of thousands more citizens are now aware of the collapse of WTC 7. We believe that what we have achieved will be a steppingstone to greater accomplishments in the future – whether directly leading the way to a third, successful ballot initiative, or channeling the support that has been mobilized toward a new type of effort.
We would like to thank everyone who supported the High-Rise Safety Initiative along the way. Our achievements were made possible only because thousands of people came together to support us. Without you, there would have been nothing. Thank you very much for being a part of our effort.
Executive Director, NYC CAN