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Wednesday, January 7, 2009

Term Limits Lawsuit Continues in Court

Attorney Randy Mastro, right, argues for the plaintiffs, while Corporation Counsel Stephen Kitzinger, left, representing the city, listens, Wednesday, Oct. 22, 2008 in New York as Mastro argues to stop a proposed Oct. 23 vote that could alter term limits for some of the city's elected officials, including Mayor Michael Bloomberg. Judge Jacquelyn Silbermann denied the request to block voting on Mayor Bloomberg's proposal to change the term-limits law so he can run for a third term.

January 6, 2009
Term Limits Get Reprise, This Time in Court

A decisive round in the battle over who can run for re-election in New York City in November played out on Monday in a packed courtroom in Brooklyn, where lawyers for the city and for a group challenging an extension of term limits argued their cases before a federal district judge.

Each side tried to make its case, and the judge, Charles P. Sifton, (pictured at right) acknowledged how difficult a decision this might be for him.

“We’re talking about different interests,” said Judge Sifton, whose ruling will essentially decide the makeup of the citywide ballot. “It’s difficult to convert into some common denominator.”

Two months have passed since Mayor Michael R. Bloomberg signed the law allowing him and most other elected city officials to seek third terms, circumventing two plebiscites that set two consecutive four-year terms in public office as the limit for all of them.

One primary issue in the lawsuit filed by the challengers is whether the law extending term limits violated the voters’ constitutional rights to free speech, by annulling a decision they had endorsed at the polls, and their due process, by giving two-term incumbents an unfair advantage over challengers.

Arguing on behalf of the city, Stephen Kitzinger, (above) senior counsel in the city’s Law Department, said the claims “have no merit whatsoever” and added, “This law does not preserve an incumbent’s position for another four years.”

With that, Mr. Kitzinger apparently hoped to discredit some of the lawsuit’s other claims, including one that called it a conflict of interest for politicians to vote on a law expanding their own time in office. When Judge Sifton asked about the salaries and pensions a three-term incumbent might earn, Mr. Kitzinger replied impatiently, “They still have to be re-elected.”

Randy M. Mastro, the lead lawyer for the plaintiffs, squarely disagreed.

“A term-limited mayor and a term-limited City Council majority made a conscious choice out of naked incumbent protection to vote themselves the opportunity for a third term,” Mr. Mastro said.

Overturning the law extending term limits would most likely cause chaos in the city’s political world, compelling politicians who would be forced out of office to come up with new plans and candidates who had given up running against entrenched officeholders to rethink their strategies.

Judge Sifton, who last month denied a city request to have the case moved to Manhattan and combined with another lawsuit challenging the law, did not set a date for his decision. “I’ll issue a written opinion as fast as I can,” he said.

A total of 25 elected officials, aspiring politicians and other people filed the lawsuit on Nov. 10, charging that the term limits extension was unconstitutional.

In a written response submitted late last month, city lawyers scoffed at the notion, calling it a “startling premise” and a “radical proposal” that would essentially undermine the power of legislatures to amend or revoke laws passed by referendum.

The bill sparked one of the most divisive battles in the city’s recent political history, at one point pitting Mr. Bloomberg against some of his top aides, who advised him against a re-election bid. It also sparked countless protests on the steps of City Hall, prompted petition drives and nearly split the City Council in half.

The Council passed the bill on Oct. 23 in a 29-to-22 vote and Mr. Bloomberg signed it into law 11 days later, after sitting through almost five hours of emotional — and often harshly critical — public testimony.

The mayor said that he wanted to run for a third term to give voters the option of choosing a seasoned leader during a period of extraordinary fiscal hardship for the city.

He has also said that a charter revision commission could revert to the two-term limit as early as next year.

November 11, 2008 10:30 AM
Gibson Dunn's Mastro Leads Term Limits Suit Against Bloomberg
Posted by Dimitra Kessenides
From The Am Law Litigation Daily

A diverse group of folks has filed a suit against New York mayor Michael Bloomberg, challenging the constitutionality of the recently passed legislation that will permit him to run for a third term. The coalition suing the mayor includes elected officials, private citizens, and public interest groups. Not surprisingly, one of the group's lawyers is Randy Mastro of Gibson, Dunn & Crutcher, who once served as Rudy Giuliani's deputy mayor. As we reported last month, (see below - Ed.) Mastro first signed on to represent two City Council members who had filed a petition for a temporary restraining order to halt the Council's October 23 vote.

Given his loyalty to Giuliani, Mastro's work on the legal campaign to block Bloomberg's efforts had already raised eyebrows even before he coauthored the coalition's complaint. "If Mastro succeeds in derailing Bloomberg's plan for another four years, he'd embarrass [Bloomberg]," wrote Jacob Gershman in a recent New York magazine story. "Taking Bloomberg down a peg could only help Giuliani, who's positioning himself to mount a comeback by seeking to unseat [New York governor] David Paterson in 2010."

In the same article, one veteran political operative jokingly described Mastro as the "Luca Brasi" of the term limits operation. But Mastro denied that his firm's pro bono work in support of term limits was influenced by his ties to Giuliani. "It has nothing to do with anyone I worked for in the past," Mastro told the magazine.

Mastro sees the term-limits move by Bloomberg and the Council members supporting it as "an assault on our democracy," he told The Am Law Daily last month.

The complaint also lists Gibson attorneys Jim Walden, Richard Bierschbach, and Gabriel Herrmann, and solo practitioner Norman Siegel. Lovells attorney Pieter Van Tol is listed as counsel to the New York Public Interest Group.

Download Term Limits Complaint

Comments (1)

There does not seem to be much difference between what Hitler did to gain power and what Bloomberg is doing. If Mr. Bloomberg thinks with his large ego that he is the only one to save NYC, then why cant he volunteer his services. I am sure that if another person was mayor they would listen to his advice. Or is it the 1st rule of power, which is to keep it. A referendum is the voice of the people, which in the past Mr. Bloomberg was all for. That is until it got in the way of his ambitions. Dictator: a person exercising absolute power, esp. a ruler who has absolute, unrestricted control in a government without hereditary succession. One who imposes or favors absolute obedience to authority. A ruler who is unconstrained by law.
Does it sound familiar Mr. Bloomberg, or should people start calling you mien fuehrer instead of mayor.

Comment By Ogel - November 11, 2008 at 2:44 PM

October 22, 2008 5:44 PM
NYC Judge Green Lights Term Limit Vote
Posted by Rachel Breitman

A New York City judge said Wednesday that a City Council vote on extending term limits can move forward as planned. Earlier in the day, two New York City Council members, represented by Gibson Dunn & Crutcher's Randy Mastro, filed a petition for a temporary restraining order to halt Thursday's scheduled vote.

Mastro, co-chair of Gibson Dunn & Crutcher's litigation practice and crisis management groups, argued that council members who stand to benefit from term extensions have a conflict of interest in voting on the matter. The former deputy mayor under Rudolph Giuliani was tapped to represent Brooklyn council members Bill de Blasio and Letitia James, both outspoken critics of Mayor Michael Bloomberg's plan to extend his term.

"We think some of the council members' personal interests in extending term limits are self-serving," Mastro tells The Am Law Daily. "It's an assault on our democracy," he says. Gibson Dunn is handling the case pro bono.

The suit tried in vain to slow the trajectory of Bloomberg's fast-moving campaign for a third term. Bloomberg announced October 2 that he would seek a change to the term limits rules, and said there wasn't enough time for a citywide vote on the matter.

Mastro previously locked horns with Bloomberg in a lawsuit over the city's controversial West Side Stadium project.

Stephen Kitzinger, senior counsel from the New York City Law Department, represented the rest of council, arguing that the city's legislative body has the power to change the term limits without opening the matter up to the public.

"We are gratified the court ruled in favor of the City's position, thus allowing the council to vote on this critical issue," Kitzinger said in a statement.

Under the current term limits law, passed by a city referendum in 1993, New York City's elected officials can serve only to two four-year terms. Under the current law, two out of three council members will be looking for work once their terms end come 2009, including Speaker Christine Quinn. Quinn supports the vote.

A recent op-ed by Mastro published in the New York Times argued that Bloomberg's only legitimate path to a third term would be through the approval of city residents in a special election referendum.

Barring a reversal by the appellate division Thursday, the council will move forward with a scheduled vote.

October 6, 2008 5:36 PM
Lawyers Debate Legality of Opening Door to a Third Bloomberg Term
Posted by Rachel Breitman

Even before Mayor Michael Bloomberg formally declared his desire to serve a third term last Thursday, lawmakers and lawyers had begun questioning the legality of the plan.

Conceding that there wasn't enough to time to give the public a chance to vote on whether to amend the city's term-limit law, the mayor said the City Council should be allowed to make the decision.

"The [City] Charter allows the Council to change the law - and it doesn't favor one method of adoption over another,” Bloomberg said in a statement. The mayor added that he expected Council Speaker Christine Quinn (pictured at right) --also set to be term-limited out of office next year--to lead the charge on the matter.

But council members, good-government advocates and politicians eyeing higher office expressed skepticism about the validity of using a council vote to undo the 1993 term limit law, which was passed via public referendum and caps at two the number of four-year terms that elected officials may serve. Critics -- some of whom gathered at City Hall on Sunday to protest any move to extend term limts -- note that voters already rejected a move to overturn the limits by defeating a 1996 referendum on the issue.

Opposition to Bloomberg's third-term push could build inside City Hall this week, fueled in part by the efforts of council members with designs on higher office. Queens Councilmember -- and announced comptroller candidate -- David Weprin (pictured above) plans to introduce a bill shortly that would require a public vote in advance of any term-limit changes. Brooklyn Councilmember Bill de Blasio, a borough president hopeful, has teamed up with Councilwoman Letitia James, (pictured at right) whose term runs through 2011, on a bill that would place the question before voters in a special spring referendum.

A term limit bill could also face legal challenges from other mayoral hopefuls, including City Comptroller William Thompson Jr., a Democrat who has labeled Bloomberg's move “an attempt to suspend democracy,” or supermarket magnate John Catsimatidis, a potential GOP candidate.

“The people voted on term limits twice, and the will of the people should stand,” Catsimatidis spokesman Robert Ryan tells The AmLaw Daily.

Norman Siegel, director of the New York Civil Liberties Union from 1985 to 2000, tells The AmLaw Daily that he would be keen to help out with a legal challenge to the mayor. “The people have spoken two times by public referendum,” says Siegel, who is planning a third run for public advocate next year. Siegel has previously challenged the Bloomberg administration over such issues as citywide parade rules and mourners' access to Ground Zero. “The question is whether you can allow a legislative body to undo the people’s will by legislative fiat.”

Siegel downplayed the 1961 court decision in Benzow v. Cooley--often cited by Bloomberg supporters as a powerful precedent---when the New York State Court of Appeals upheld Buffalo city council’s right to overturn term limits. “The Buffalo decision is limited and not controlling in this case,” says Siegel.

The mayor's backers point to a 2003 New York City appeals court decision, which supported the council's power to tweak the 1993 term limits bill for candidates elected during mid-term special elections.

“It is absolutely clear that the city council can change the term limits, and it does not require a referendum,“ Robert Joffe, a partner in Cravath Swaine and Moore's litigation department, who represented the city council in the 2003 case, tells The AmLaw Daily. But he says there will still be debate over what a new term limit law might look like. “The question is, would they abolish term limits outright? Change the limits to three terms for all elections, or just this one because of fiscal emergency?”

Another potential wild card could be cosmetics heir Ronald Lauder, a longtime term-limits proponent and the driving force behind passage of the original law. Lauder says he will only support a one-time extension to the term limits bill, and will actively campaign against any council bill that would permanently change term limit restrictions.

The mayor has, however, won the support of several prominent lawyers, including Candace Beineke, chair of Hughes Hubbard & Reed and Martin Lipton, a founding partner of of Wachtell, Lipton, Rosen & Katz. The two joined 28 corporate executives in an open letter that was published in several New York City newspapers on Thursday supporting a third Bloomberg term.

“I am not an expert on term limits,” Beineke tells The AmLaw Daily. Nonetheless, she believes New Yorkers should see Bloomberg on the ballot next year. “I think the voters ought to have a chance to give Bloomberg a third term because it is the most democratic option.”
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Comments (2)

I wanted to update your readers. After the City Council's introduction of two pieces of legislation relating to this matter yesterday, New York City Comptroller William C. Thompson, Jr. issued the following statement: "Today, the New York City Council introduced two measures, one that would allow the Council and the Mayor to single-handedly grant themselves the ability to run for a third term. The other measure would allow New York City voters to make the decision. The choice is clear: People must come before politics. It is inappropriate for the Mayor and City Council to pass legislation that ignores the will of the voters. A government should serve its people and not itself. New Yorkers deserve nothing less."

Comment By Jeff Simmons - October 8, 2008 at 2:26 PM

Why was the Mayor afraid to put in a referundum before the Sept. 24th deadline....No answer from him. WHY

Comment By james wachowiak - November 3, 2008 at 1:50 AM