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Supreme Court, Appellate Division, First Department, New York.

The COUNCIL OF the CITY OF NEW YORK, et al., Plaintiffs-Respondents, v. Rudolph GIULIANI, etc., et al., Defendants-Appellants.

Decided: October 16, 1998

Before ROSENBERGER, J.P., and NARDELLI, MAZZARELLI, ANDRIAS and SAXE, JJ. Dale C. Christensen, Jr., of counsel (John J. Galban, on the brief, Seward & Kissel and Richard M. Weinberg, attorneys), for plaintiffs-respondents. Timothy J. O'Shaughnessy, of counsel (Leonard Koerner, Jonathan Pines and Kristin M. Helmers, on the brief, Michael D. Hess, attorney), for defendants-appellants. Laurel W. Eisner, General Counsel and Elisa Velazquez, Deputy Counsel, as amicus curiae, on behalf of Mark Green, Public Advocate for the City of New York. Charles N. Brown, First Assistant Corporation Counsel, Douglas H. Astralaga, Corporation Counsel, as amicus curiae, on behalf of the City of Utica. Peter D. Moss, as amicus curiae, Pro Se.

Over the past few months, Mayor Rudolph W. Giuliani (henceforth “the Mayor”) has publicly supported the construction of a new baseball stadium for the New York Yankees in Manhattan.   In April of this year, Peter F. Vallone (henceforth “the Speaker”), the Speaker of the Council of the City of New York (henceforth “the Council”), announced an intent to create a voter referendum that would block the Mayor's plan to relocate the Yankees.   The proposal, Introductory No. 335 (referred to herein as “Int. 335”), which was designed to be placed on the ballot at the November 3, 1998 general election, would prohibit New York City officials from spending public funds on the construction of a new stadium for the Yankees in Manhattan.

Subsequently, the Mayor stated his intention to create a new Charter Revision Commission (henceforth “the Commission”) which would re-examine and possibly amend or replace the City Charter.   The Council and the Mayor had put forward proposals for Charter Revision Commissions during the previous winter but had ultimately deferred consideration of the issue.   The Mayor's decision to revive the Charter revision idea was admittedly motivated in part by a desire to outmaneuver the Council's referendum plan.   Under Municipal Home Rule Law (“MHRL”) § 36(5)(e), the placement on the ballot of a validly derived proposal initiated by a Charter Revision Commission will “bump” any other referendum off the ballot, so that the voters can give their full attention to the important task of reviewing the City Charter.

The Commission announced a broad agenda in June 1998, but this agenda was subsequently narrowed to a single topic.   Originally, the Commission's stated plan was to consider changes to the Charter provisions relating to land use and economic development, procurement of goods and services, budget efficiency, campaign finance, nonpartisan elections for City officials, and a review of the functions of various City offices, as well as other unspecified issues.   Suggested revisions, if any, would be presented to the voters in November.

However, the result of the Commission's first and second public hearings was a decision to defer consideration of all but three issues:  campaign finance reform, nonpartisan elections, and a requirement of full-time rather than part-time service for City Council members.   This decision was adopted at the Commission's first of five public meetings.   After the second public meeting, the Commission further narrowed its agenda to focus solely on campaign finance reform, and accordingly conducted public hearings on this topic.   At the end of their review process in August, the Commission voted to approve its campaign finance proposals for submission to the voters of New York City in November.

The Commission also voted to continue studying the other issues for the 1999 general election.   Although technically the Commission's term of office would expire, pursuant to MHRL § 36(6)(e), on the day of the election for which it submitted a proposal, the Mayor could reappoint the Commission if its work was not complete.

The instant lawsuit arose because the Council and the Speaker (collectively “plaintiffs”) challenge the legitimacy of the process by which the proposals of the Charter Revision Commission were formulated.   MHRL § 36(5)(a) mandates that the Commission “review the entire charter”, and that if the Commission decides to leave any part of the charter unchanged, “it shall make a report to the public, accompanying its proposals, in which it shall refer specifically to such unchanged part and explain its decision to leave such part unchanged.”   It is plaintiffs' contention that the Commission neither undertook nor intended to undertake a complete review of the charter;  rather, plaintiffs claim, the charter review was a charade whose sole purpose was to put some proposal (whatever it might be) on the ballot to displace Int. 335.

The IAS court agreed and granted plaintiffs an injunction barring defendants from placing the Commission's campaign finance reform proposal on the ballot.   Because we find that defendants complied with the requirement of complete review of the charter, as defined by the Court of Appeals in Cruz v. Deierlein, 84 N.Y.2d 890, 620 N.Y.S.2d 791, 644 N.E.2d 1347, we hold that plaintiffs were not entitled to a preliminary injunction.   In light of this conclusion, we need not reach the parties' other arguments.

 A movant's burden of proof on a motion for a preliminary injunction is particularly high.   A preliminary injunction may be issued only where the moving party demonstrates a likelihood of success on the merits, the prospect of irreparable harm if the injunction is not granted, and a balance of equities in the moving party's favor (State of New York v. Fine, 72 N.Y.2d 967, 968-969, 534 N.Y.S.2d 357, 530 N.E.2d 1277).   This standard was not met here.

 Plaintiffs did not show a likelihood of success on the merits.   The sole claim which the IAS court upheld, namely plaintiffs' challenge to the completeness of the Commission's review, is not valid.   Our conclusion on this point is controlled by Cruz, supra, in which the Court of Appeals applied MHRL § 36(5)(a) to circumstances much like those presented herein.   Just as in New York City today, the Mayor and City Council of Yonkers were engaged in a power struggle in which the Mayor appointed a Charter Revision Commission specifically to preempt the City Council's referendum proposal (which would have curtailed certain mayoral powers) from appearing on the ballot.   The Yonkers Commission's report stated that it had examined the entire Charter and decided not to change the balance of the Charter because several topics needed significant further study.   As a result, the Yonkers Commission only proposed two amendments to the existing Charter.   Its report discussed the history and rationales for those provisions in detail (id. at 892-893, 620 N.Y.S.2d 791, 644 N.E.2d 1347).

The Yonkers City Clerk refused to place the Yonkers Commission's proposals on the ballot, alleging that the Commission had not undertaken a complete review of the Charter.   The Court of Appeals, however, found the Yonkers Commission's scope of review to be sufficient (id. at 892, 620 N.Y.S.2d 791, 644 N.E.2d 1347).

The material facts of the instant case are similar to Cruz in many respects.   First, in both cases, the Mayor appointed the Commission partly to curtail the City Council's power to place its referendum before the voters.   This motivation was implicitly deemed legitimate by the Court of Appeals.   Moreover, in Di Prima v. Wagner, 14 A.D.2d 36, 40, 215 N.Y.S.2d 705, affd. 10 N.Y.2d 728, 219 N.Y.S.2d 272, 176 N.E.2d 839, this court upheld the predecessor of MHRL § 36(5)(e), even though that statute raised the real possibility that a politically motivated Mayor might instigate a charter review out of a desire to block local legislation rather than solely out of a “pure” desire to revise the charter.

The IAS court herein wrongly second-guessed the Commission's assertion that it had conducted a thorough review.   It is not a court's place to speculate how much the Commission's action was due to an alleged Mayoral desire to put something on the ballot at all costs, versus the Commission's professed sense that the urgent problem of campaign finance reform required an immediate response even though other Charter sections still remained to be explored.   The latter is plausible because a different campaign finance proposal was pending before the City Council.   The Commission's report here noted that immediate action was necessary since some candidates for municipal office had already begun fund raising for the 2001 elections.   Similarly, in Cruz, the Yonkers Commission focused its review on certain problems because the City Council's proposed Local Laws, if passed, would have codified a different solution to those problems.

Further, under Cruz it is legitimate for the Commission to present only a limited number of amendments and defer the remainder for further study in the hopes that the Commission will be reappointed to continue its work (see, Cruz, supra, at 893, 620 N.Y.S.2d 791, 644 N.E.2d 1347).   It also appears that notwithstanding the seemingly strict language of MHRL § 36(5)(a), the Court of Appeals has concluded that a Commission need not enumerate every single section of the Charter in support of its decision to leave such sections unchanged.

The Commission's report herein, which was more than twice the length of the one in Cruz, enumerates various reasons for its conclusion, including:  the fact that the Charter had already been extensively overhauled in 1989;  concerns voiced at the public hearings that the Commission would need a long time to study many of the proposed issues;  and the aforementioned need to implement a new campaign financing scheme in time for municipal candidates to come into compliance therewith.   As in Cruz, the report discussed the history and reasoning behind the proposed amendments at length.   Additionally, with respect to the other topics that the Commission had initially announced an intent to review, the report detailed the Commission's findings on each issue and buttressed the Commission's conclusion that these topics needed further study.

 We also note that plaintiffs failed to demonstrate irreparable injury.   Even if Int. 335 did not appear on the ballot, the Mayor could not unilaterally decree that public funds should be spent on a new stadium, absent the City Council's budgetary and land-use powers.

Since we find that the Commission's campaign finance proposal was validly derived, pursuant to MHRL § 36(5)(e), it must take precedence over Int. 335, which will thus not appear on the ballot this November.   Accordingly, we dismiss as academic defendants' cross-motion for summary judgment declaring Int. 335 invalid as an illegal exercise of the City Council's powers.

Therefore, the order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about October 6, 1998, granting plaintiffs' motion for a preliminary injunction and denying defendants' cross-motion for summary judgment, should be reversed, on the law, without costs, the plaintiff's motion denied, and the defendants' motion dismissed as academic.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about October 6, 1998, reversed, on the law, without costs, plaintiffs' motion for a preliminary injunction denied and defendants' cross-motion for summary judgment dismissed as academic.   Motion seeking leave to vacate the stay dismissed as moot and motions seeking permission to file Amicus Curiae briefs granted.


All concur.