Summary
finding that, without express grant of substantive right of recall by direct vote of electorate, court would not expand scope of law permitting initiatives and local laws on selection and removal of officers and that initiative was therefore not a proper subject for an amendment to the city charter
Summary of this case from Marijuana Policy Project v. D.C. Board of Elec. and Eth.Opinion
October 2, 1986
Appeal from the Supreme Court, New York County (Eugene R. Wolin, J.).
By this article 78 proceeding petitioners, sponsors of a referendum petition which would place on the ballot a proposed local law amending New York City Charter, chapter 409, § 1100 et seq., to provide for the recall of elected officials and the election of their successors, seek to compel the Clerk of the City of New York to certify the initiative and petition so that the referendum may be placed on the ballot in the November 4, 1986 general election. The Clerk has objected to the petition on the grounds that it, inter alia, "contains illegal and ambiguous provisions and is not a permissible subject for referendum because recall procedures are not authorized by state law." We need not, as did the Supreme Court, rule on the Clerk's claim that a recall referendum is neither statutorily nor constitutionally authorized, however, since, in any event, we agree with that court's conclusion that the instant recall referendum, by virtue of its blatant ambiguities and illegal provisions, is fatally flawed. In affirming on that limited basis we do so for the reasons stated in support of that conclusion by Justice Eugene R. Wolin in his decision of August 19, 1986. We also agree with the Supreme Court's conclusion, as well as its analysis in support thereof, that the Clerk's failure to comply with the requirement that he transmit his supplemental certification within 15 days after filing of the petition, as required by Municipal Home Rule Law § 24, does not constitute a waiver so as to transform an invalid initiative into a valid one. The Clerk cannot be deprived of his power to transmit a certification to the City Council by his failure to meet the 15-day requirement. (See, Matter of Rochester Gas Elec. Corp. v Maltbie, 272 App. Div. 162, 165-166.) Absent some evidence that the requirement is jurisdictional, a provision directing a public officer to take action within a certain time limit is directory, not mandatory. (See, McKinney's Cons Laws of NY, Book 1, Statutes § 172; see also, Matter of Fossella v Dinkins, 128 Misc.2d 822, affd 114 A.D.2d 340.)
Concur — Sullivan, J.P., Ross, Carro, Milonas and Wallach, JJ.