Home Blog Articles














Erie County Index No. 2002-8845



James Ostrowski
Amicus Curiae
Attorney at Law
984 Ellicott Square
Buffalo, New York 14203
(716) 854-1440




This brief was filed with State Supreme Court last August when the Mayor’s lawyers were trying to kill the recall effort. Justice Joseph Makowski accepted my brief as amicus curiae. None of these issues was decided because the petitions were dismissed due to a lack of valid signatures. My main concern was that the recall law per se not be invalidated. That goal was accomplished. The law is still on the books. This brief is essentially a point-by point rebuttal of the brief submitted by Connors & Vilardo for the Mayor. My brief was submitted pro bono publico.



This statement of facts is based on matters of common knowledge, facts about which judicial notice can be taken, or facts about which, for the most part, there can be no reasonable dispute.

The City of Buffalo is losing people, jobs and hope. It faces problems too numerous to mention and too obvious to deny. Its citizens are frustrated by these intractable problems, by a perception of failed leadership, and by the complete absence of a competitive election for Mayor in 2001.

Out of this milieu grew a recall petition campaign led by former Mayor James D. Griffin and joined in by numerous other volunteers. Recently, Mayor Griffin filed a recall petition purporting to contain over 20,000 signatures of city voters. The Board of Elections is currently reviewing the petition for sufficiency and has yet to issue a ruling.

Nevertheless, about one week ago, a supporter of Mayor Masiello filed a petition in State Supreme Court to terminate the recall process. Apparently, only four lawyers who oppose the recall law appeared in court. None of the thousands of citizens who support recall were notified or present. Fortunately, Justice Eugene M. Fahey dismissed the petition as premature.

More recently, Mayor Masiello filed the present petition alleging that the recall law is unauthorized, defective as written, and that the petitions themselves are defective for numerous reasons related to the validity of signatures and witnesses. The only party named who supports recall is Mayor Griffin. It is not known at this time whether he plans to appear by counsel in the action. Even if he does so appear, it is unlikely that his counsel will have the time to delve into the complex legal issues raised herein by lawyers for Mayor Masiello who appear to have been working on their brief for many weeks and have access to legal fees from Mayor Masiello's wealthy political action committee. Mayor Griffin’s counsel’s time is likely to be consumed with the issue of the sufficiency of the petition, a matter about which Mayor Masiello’s team has spent thousands of hours. Other counsel likely to appear in this action—the Corporation Counsel, County Attorney, and Attorney General, are either on record against recall, or are likely to have little inclination to defend the recall law. This is particularly unfortunate in the case of the Corporation Counsel who should vigorously represent the people of Buffalo and the people’s Charter in this proceeding. Unless the Court accepts this amicus curiae submission, the Court will be handicapped by being forced to rely on a tendentious presentation of the legal issues. That would be counter to the spirit of Ethical Consideration 7-23:

“The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to the client. Where a lawyer knows of controlling legal authority directly adverse to the position of the client, the lawyer should inform the tribunal of its existence unless the adversary has done so; but, having made such disclosure, the lawyer may challenge its soundness in whole or in part.”

Mayor Masiello presently asks the Court to strike down a recall law that he personally voted for in 1978 in the Common Council, twice. That is, when then-Mayor Griffin vetoed the law, Mayor Masiello voted to overrule the veto. Further, Mayor Masiello now makes some of the same arguments against the recall provision that Mayor Griffin made and Masiello rejected in 1978. Mayor Masiello also urged the citizens of Buffalo to once again approve the recall law in 1999 and they did so.

The author of this brief is a citizen and resident of Buffalo who is disappointed by the above series of events. He is supportive of the recall law in principle and in this specific instance. He is interested in having the Court preserve this law, whether or not this particular petition is found to be sufficient.



This proceeding should be dismissed as the prior one was. The Board of Elections has yet to rule on the matter. It is elementary that the Court should not dispose of the case on constitutional issues if it can do so on other grounds. Thus, the petition should be dismissed without prejudice.


To advance the cause of “Effective local self-government” . . . “every local government shall have power to adopt local laws as provided by this article.” NY Constitution, Article IX, Section 1. Both the state constitution and state statutes grant the right to pass local laws respecting the “removal” of officers. Id. at Section 2(c)(1); Municipal Home Rule Law, Section 10. This right is to be liberally construed. NY Constitution, Art. IX, Section 3(c). The Buffalo City Charter is a “local law” which provides for the “removal” of officials. Since the authority for this law is to be liberally construed, anyone arguing that it is unauthorized has an extremely heavy burden to bear. All such arguments known to this writer are flawed.

A 1985 informal opinion of the Attorney General (No. 85-1) concludes that a local government may not provide for recall of elected official unless such action has been expressly authorized by State statutory authority or by the provisions of the Constitution. This is a short, “informal and unofficial” opinion which is not binding on the court. Its persuasive value is no greater than its cogency, which is slight. The opinion relies on two very old and inapposite Court of Appeals cases. A State Comptroller’s opinion issued in 1989 relies on the same outdated cases.

Mills v. Sweeney, 219 NY 213 (1916) interpreted the Constitution of 1894, no longer in effect. The court held that a City of Buffalo ordinance which allowed submission of questions of public policy to the voters was not authorized by the city charter’s general welfare clause. The court by no means forbade city charters from providing for referenda:

“In the existing charter of the City of Buffalo we find an article entitled, “The Referendum” (sections 31 to 34, inclusive) which provides under certain circumstances for submitting to a vote of the electors of the city the questions whether an ordinance shall be repealed and which prescribes a method whereby any resolution appropriating money other than for the regular payrolls or disposing of any property or rights of the city may be submitted to the electors before becoming effective. I think that the charter provisions prescribing when a referendum may be had are exclusive and by implication prohibit the common council from providing by ordinance for a referendum as to other matters.” Id. at 218.

Though Mills v. Sweeney does not bar recall elections, even if it did, since it interprets documents no longer in effect and substantially different from those now in effect, its precedential value is non-existent.

The Attorney General’s opinion also cites McCabe v. Voorhis, 243 NY 401 (1926), but its holding is much narrower than the informal opinion implies. That case merely held that a proposed referendum to pass a law requiring voter approval to increase subway fares improperly overrides state law which gives that authority to the city’s Board of Estimate. McCabe v. Voorhis does not explicitly or implicitly bar recall of officials authorized by local laws.

Sinawski v. Cuevas, 133 Misc. 2d 72 (Sup. Ct. NY Co. 1986), is a trial-level opinion not binding on this court. The court spends three short paragraphs analyzing whether New York City voters can propose a law by referendum and concludes that they may not. However, instead of analyzing the state constitution and statutes discussed above, the court for some reason cites case law from other states which concludes that recall must be specifically provided for in a state’s constitution. Case law from other states is of no assistance whatsoever unless it interprets language which is identical to New York’s. Even then it is not binding. There is no indication in Sinawski v. Cuevas that this was the case.

The only other authority relied on by the court is Black’s Law Dictionary, truly a last resort for any court and utterly unnecessary here where clearly worded constitutional and statutory provisions point the way. The court’s use of Black’s is also flawed. It purports to use Black’s definition of “removal” to preclude “recall”; however, Black’s definition of “recall” uses the word “removal”. Also, Black’s implies that removal must be by a “superior officer.” This is nonsense. The President of the United States can be removed by the Senate, which is most definitely not the President’s superior officer.

Sinawski v. Cuevas was affirmed on appeal, however, not on the ground that recall is unauthorized: “We need not . . . rule on the Clerk’s claim that a recall referendum is neither statutorily nor constitutionally authorized by state law.” 123 AD2d 548.

Thus, the constitution and state statutes authorize a city to enact a local law providing for removal of officials by recall. Such authority is liberally construed and there is no binding or persuasive authority to the contrary.


Mayor Masiello’s attorneys attack the validity of the Charter provision as written. They list numerous alleged defects which appear, on first glance, to have some merit. Upon detailed and careful review, however, these complaints are either baseless or trivial.

Requiring county officials to perform tasks. Mayor Masiello complains that the recall provision improperly imposes obligations on the Erie County Board of Elections. The Mayor’s lawyers fail to cite to the statute that defines the “applicability” of the Election Law:

“S 1-102. Applicability of chapter. This chapter shall govern the conduct of all elections at which voters of the state of New York may cast a ballot for the purpose of electing an individual to any party position or nominating or electing an individual to any federal, state, county, city, town or village office, or deciding any ballot question submitted to all the voters of the state or the voters of any county or city, or deciding any ballot question submitted to the voters of any town or village at the time of a general election. Where a specific provision of law exists in any other law which is inconsistent with the provisions of this chapter, such provision shall apply unless a provision of this chapter specifies that such provision of this chapter shall apply notwithstanding any other provision of law.” (Emphasis added.)


Similar guidance is provided by another statute not cited by the Mayor’s counsel. The General City Law, Section 8, states:

“The provisions of the election law or any other law relating to the submission of questions at general elections, so far as the same are applicable and not inconsistent with this chapter, shall apply to the conduct of all elections at which questions are submitted to all the voters of a city. Where a specific provision of law exists in any other law which is inconsistent with the provisions of the election law, such provision shall apply unless a provision of the election law specifies that such provision of the election law shall apply notwithstanding any other provision of law.” (Emphasis added.)

Taken together, these statues provide clear authorization for the city charter, a “law” (see, Municipal Home Rule Law, Section 2(6)), to incorporate the Election Law where appropriate and override it when necessary. Thus, State law allows the city to impose duties on a county agency, and it explicitly does so.

Finally, Mayor Masiello lacks standing to raise this issue.

Removal of judges. The City Charter recall provision does not apply to City Court judges because they are not “city officials”, the term used in the caption to Section 23-13. City court judges became state employees on or about April 1, 1978 by virtue of an amendment to the state constitution. A veto of the Charter provision was overridden on July 31, 1978, and the provision was presumably adopted by the voters later that year. Thus, when the recall provision was passed, city judges were no longer city employees. Further, these judges were state employees when the recall provision was re-ratified in 1999. The Charter must be read as a whole. The Charter contains no provision for selecting City Court Judges. Thus, it would be absurd to interpret the Charter’s recall provisions as allowing for the removal of officers not installed by its provisions.

Creating felony liability. The City Charter provision requiring that witnesses be put on notice that false statements may be punished, creates no new crimes. The Penal Law creates the various crimes of perjury defined at Article 210. The Charter merely creates a factual scenario for which the Penal Law imposes liability.

Ambiguity and contradiction. Contrary to the Mayor’s brief, there is no fatal contradiction in the Charter with respect to which list of voters is to be used to evaluate the petition. The Charter refers to removal by the “qualified registered electors”—in the present tense five times at Sections 23-13; 23-13(a); 23-13(c); 23-13(d) (form of petition); 23-13(f). The single reference to the “registration list of the last previous general election” in Section 23-13(f), is anomalous, however, a reading of the Chapter as a whole reveals that all presently registered voters can sign the petition. Even if the Court were to find that the single reference to the “last previous general election” controls, this would merely result in a certain interpretation of the law and not be cause for throwing out the entire recall provision.

Mayor Masiello objects to the recall provision—though he supported it three times—that allows petitions of “like effect and tenor” to be combined. He sees a problem where there is none. This clause refers not to the essence of the petition—the proposal to remove a specific officer—but to the issue of the grounds for removal. Therefore, there is nothing wrong or illogical about allowing petitions which seek the removal of the same officer to be combined if they set forth substantially similar grounds. In any event, this point is academic as there is no allegation that different petitions were combined in the present case.

Order of events. There is no contradiction between the duties of the clerk, board of elections and council. The city clerk’s duties are purely ministerial. The clerk receives the petition and forwards it to the board of elections. The board of elections is to determine the number of valid signatures and return the petition to the clerk for forwarding to the council with a determination of the “sufficiency” of the petition. This determination is binding on the Council. Though the Charter states that the Council “shall thereupon order” an election, the clear intent of the Charter is that they can do so only if the petition is “sufficient.” Otherwise, they would be violating Section 23-13(a). Certainly, the Charter could have been more clearly worded, but its intent is clear.

Standards for evaluating petitions. The Charter does provide standards for determining the validity of the petition. The Board of Elections is directed to ensure that the persons who sign are registered voters and that the witnesses are registered voters as well (or notaries, etc.). The fact that petitioner presents numerous grounds for challenging the petition is proof itself that there are objective standards available for evaluating the petition.

It is alleged that the requirement that the petition state the grounds for recall is unenforceable. If that is true, that was the intent of the Charter: “The sufficiency of such statement shall not be subject to review. . . “. Section 23-13(e). However, the requirement is enforceable. If no grounds are stated, the petition is insufficient.

Summary. All the alleged defects cited by Mayor Masiello's counsel are either not defects at all, or, at worst, are trivial flaws that can be corrected by a reasonable interpretation of the provision as a whole.


The Court should dismiss the petition as premature. Alternatively, if the merits of the petition are reached and the petition is upheld, the Court should find the recall law authorized and proper.

Dated: Buffalo, New York
August 15, 2002

Amicus Curiae
Attorney at Law
984 Ellicott Square
Buffalo, New York 14203
(716) 854-1440

It's More than a book.  It's an Event!