9/29/09

Supreme Court Justice Edward Lehner has begun consideration of NYC CAN’s motion to reject Referee’s Louis Crespo’s recommendation that the NYC CAN 9/11 petition not be submitted to the voters on November 3. The petition would ask whether or not there should be an independent New York City investigation into 9/11.

Responding to a motion brought by NYC CAN attorney Dennis McMahon, a hearing was held Tuesday September 29 at the New York State Supreme Court, and concluded with the understanding that the Court will likely render a decision on the petition’s legality by Friday, October 2.

The City’s previously assumed deadline of September 30—spurred by the printing deadline for military absentee ballots—was brushed away by Judge Lehner as he suggested the printing of absentee ballots would likely not be ordered on Wednesday, September 30, since runoff elections were being held while the Court was in session. Even if the ballots were ordered on Wednesday, Lehner indicated, this should not prevent the referendum from being put before the vast majority of the electorate who would be voting in New York City.

Judge Lehner’s postponement of the supposed deadline came after McMahon had requested that the Judge carefully consider both sides’ arguments, rather than render a rush decision and fail to adequately contemplate NYC CAN’s legal arguments, as the Referee had done.

Initially there was a question as to whether oral arguments would go forward as a clerical mishap resulted in the Judge not being presented with the papers on time. As a result of the snafu, the procedure for the Court to hear arguments was inverted, whereby oral arguments were heard first and served to orient the Judge.

Over the next few days the Judge will go through both sides’ legal memos, as well as the applicable statutes and case law.

Surprisingly, the file forwarded from the Referee to the Judge did not contain NYC CAN’s legal memo, which McMahon told the Court seemed apropos, since the referee had barely considered the Petitioners’ memorandum of law.

The Judge proceeded to invite discourse on why an investigation was needed. When McMahon raised as an example the 9/11 Commission’s omission of the collapse of Building 7 from its final report, the Judge replied in puzzlement, “Building what?”

When asked by the Judge whether or not there has been an investigation into 9/11 by New York City authorities, Steve Kitzinger, the City’s lawyer, replied, “It’s irrelevant”, to which the packed courtroom was loudly disdainful, some openly laughing in disbelief. At which point Mr. Kitzinger prevailed upon Judge Lehner to quiet the crowd, which the Judge did.

With order restored, the Judge again asked Kitzinger if the City had done anything to investigate 9/11. Kitzinger flatly responded, “No.”

“The City never did anything?” retorted the Judge in disbelief. Nothing, Kitzinger admitted.

As part of his unrelenting attack on the NYC CAN petition, Kitzinger repeatedly alluded to the proposed commission’s intention to investigate national security matters beyond its jurisdiction such as “intelligence failures”. A simple reading of the petition shows such assertions to be completely unfounded.

Later, Judge Lehner seemed unimpressed by Kitzinger’s argument pertaining to the limited jurisdiction of New York City to investigate 9/11, on the grounds of inherent limits to a municipality’s subpoena power. “You can investigate anything, can’t you?” the Judge asked rhetorically. “Because somebody may have jurisdiction over certain witnesses doesn’t mean you can’t have a commission.”

On the complicated question of the commission being a privately funded entity but still having subpoena power granted under the auspices of New York City government, the Judge made comments that gave the Petitioners hope for a favorable ruling. “You want a law that says this private commission shall have the right to subpoena people?” To which McMahon assented. Offering similar examples, the Judge noted, “A private lawyer can issue subpoenas… a lawyer issues [subpoenas] in connection with an action [during] litigation in court.”

After the hearing, the consensus among NYC CAN members and supporters in attendance was that Judge Lehner is intrigued by the proposed referendum, and that he will give both sides’ arguments due consideration.

Near the end of the hearing, McMahon stated emphatically, “The citizens are desperate. We want to find out what really happened on 9/11.”
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