During a joint hearing in front of Supreme Court Justice John Egan, arguments in a lawsuit brought by Tutunjian against Jim Conroy, chairman of the council's review commission, and in a similar lawsuit in-turn brought against Republican Tutunjian's review commission, were presented to the court for the purpose of invalidating each other's city charter proposals and having them removed from the ballot.
In the first proceeding regarding Tutunjian's lawsuit against Conroy, Thomas Spargo, an attorney for Tutunjian's administration, illustrated points that the charter proposal submitted by the Democratic council's charter review commission was not a final draft, that identical ballot questions for both proposals were approved by the county Board of Elections, and that a section of Municipal Home Rule Law seemed to state that a mayor's charter proposal would take precedent over any other once it had been submitted.
Spargo specifically referred to paragraph 5(e) in Section 36 of Municipal Home Rule Law which stated that "...no other question or questions shall be submitted to or voted upon by such electors pursuant to any local law, ordinance, resolution or petition if such commission was created pursuant to subdivision four of this section." Subdivision four of the section addressed the fact that a charter review commission could be created by the mayor of a city.
"Our contention is that there is a priority given to mayoral charter commissions under this law and that no such other questions shall be submitted in the same election year," said Spargo.
Thomas Kenney, Conroy's attorney, stated that the proposal submitted by the council's review commission was in fact a final draft because no additional changes had been proposed to it, that an abstract of the proposal had been submitted in an accompanying letter from Conroy, and that the same paragraph of Municipal Home Rule Law allowed for an exception when another charter commission was in existence.
While paragraph 5(e) is essentially one large run-on sentence, Kenney referred to a portion directly after the part which Spargo had focused on that states, "...and no such other question or questions shall be submitted except by another charter commission if such commission was created otherwise."
"It is our belief that we fit squarely within that exception," said Kenney.
When addressing Spargo, Egan asked whether it would be simpler to instruct the county Board of Elections to label each proposal on the ballot to identify the authors and eliminate confusion among the voters, which would be caused by having identical questions on the ballot.
Spargo responded by saying that Municipal Home Rule Law only seemed to allow the mayor's proposal on the ballot and that he would not advocate submitting a ballot question in different language than what is called for in paragraph 5(b) of the section of the law.
Other issues raised in both lawsuits was the fact that neither charter outlined their changes by using brackets and italics, which neither commission believed they were responsible for because they had created what could be considered new city charters rather than only making amendments to the existing charter.
Spargo said that both charter commissions had seemed to have made enough changes to the original charter that the lack of formatting would not be considered a fatal error in their submittal, while Kenney stated that both proposals were very similar and that if one was wrong, both should be considered wrong in that regard.
Kenney did not add anything further in the second proceeding regarding Conroy's lawsuit against Tutunjian's review commission, stating that most of his issues had already been addressed.
Spargo noted that the only deficiency mentioned in Conroy's lawsuit dealt with the italics and brackets formatting problem which both he and Kenney had already addressed and believed that the case ultimately came down to the fact that the proposal submitted by the council's review commission was missing a proper abstract, a clearly identified "report to the public," and that it had been addressed to the City Council rather than City Clerk Bill McInerney when submitted.
Egan planned to take all arguments under advisement and issue his decision in writing and even offered to have it e-mailed to involved parties so that election materials could be prepared as soon as possible for the fast-approaching Election Day on Nov. 4.
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