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Setback for NYC Council in Legal Battle Over Separation of Powers



Last week in a Manhattan court, the New York City Council experienced a setback in its legal battle over the separation of powers as it continually tries to establish its independence from Mayor Bill de Blasio.

In a lawsuit that is challenging the property tax system of the city, there is an issue over five Council members’ ability to file an amicus brief on behalf of the suit’s plaintiffs. According to the New York Times, “The members sought, in their official capacity representing some 800,000 residents, to register their contention that the property tax system discriminates against minorities and is unfair to homeowners and renters alike. The de Blasio administration argued that doing so was not allowed; it contended that the members can only be represented by the Law Department, and the Law Department is already representing the city in the case. Essentially, the city argued, the City Charter prohibits this sort of friend-of-the-court filing, even when the opinion expressed by the city’s legislative branch is directly at odds with that of the executive.”

In Manhattan State Supreme Court, on Wednesday, February 7, a judge sided with the city and blocked the five members from filing their brief. The group of council members at question is diverse with both Democratic and Republican officials from Brooklyn, Queens and the Bronx.

As private individuals they can hire a lawyer from the outside to represent them, but in their official capacity they are not permitted by the City Charter, the judge said.

After the November arguments on the issue, in a four-page decision, Justice Gerald Lebovits wrote, “Because the corporation counsel will not represent them, the movants may not file their proposed amicus brief.”

The five Council Members’ lawyer Noreen Anne Kelly of McGuireWoods said, “We’re obviously disappointed in the result. We are considering an appeal.”

One of the five, Bronx Councilman Ritchie Torres said that he thought the decision was wrong and welcomed an appeal.

He said, “I maintain that I have a right to submit an amicus brief in my capacity as a duly elected official. And the administration’s decision to challenge that right is a gratuitous assault on the independence of the Council.”

The underlying property tax lawsuit that was filed against the city and state in April by Tax Equity Now New York, a group that includes homeowners, renters, real estate developers, the N.A.A.C.P., the Citizens Budget Commission and others, remains unaffected by this decision. The city hopes that the court could be persuaded to dismiss the case altogether.

The move by the city to challenge the Council members’ brief seems to put part of a bigger strategy to drag the proceedings out, said Tax Equity Now New York’s lawyers.

The state’s former chief judge and a partner at the law firm Latham & Watkins, which is representing the plaintiffs, Jonathan Lippman said, “I do absolutely think that this is part of an approach to delay the inevitable: The city has to deal with this inequitable, discriminatory system that had no rhyme or reason to it. This is an issue of fairness, and in every way the city and the state should not be moving even to dismiss the proceeding.”

By Mark Snyder



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