It is arguable that term limits is an awful, shortsighted policy because it transfers real power from the public and elected officials to unelected power brokers like government staffers, political bosses, influential lobbysists, union leaders and other special interests.

Term limits also forces some elected officials into perpetual campaign mode and makes them LESS, not more, responsive to public needs. After all, a term-limited Councilmember looking for a job in January 2010 might not act in the best interests of the public, but instead in the best interests of an industry or special interest group that will be the source of their next paycheck. In any case, term limits is with us for the moment.

However, is it legal to, via referendum, bar FUTURE elected officials from ever considering the issue? It doesn't seem logical that the Council could pass a law today that would prevent future Councils from acting. That seems like an impermissible use of authority that would be declared invalid by the courts.

The law is a malleable, evolving thing, isn't it? And if the Council could legislate in an area today, then how could a referendum (or even the Council itself) restrict this legitimate power forever?

Dear Rock,

As an aside, most argue that Mayor Bloomberg can do no wrong, for he is beholden to none. The converse, however, may not be true. That makes him a unique subject for political and historical review.

Having litigated the last Term Limits case (Local Law 27) 5 years ago after joining Randy Mastro as co-counsel at the motion level, the Court held that the City Council has the power to over-rule the public, albeit, it may not be politically smart to do so. That court ruling by the honorable appellate division reversed our win below which said that the "tweaking" of the law, while tweaking was within the city council's power, ran afoul of a mandate in the City Charter that the "term" of office cannot be extended by the City Council, as that singular power to change term-definition is reserved for the people. I even argued that permitting government to change the "term" of office was a means of making the term never end, with lets say a "term" being changed from the current 4-years to 40-years, and hence, become a government of, by and for the politicans. Doing away with term limits all together however, without tampering with the definition of the "term", the Court of Appeals had previously held, was legal. (Of course, you would need the mayor to sign or the city council to override the veto.) Well, history is clear: the City won that fight to permit term limits to be extended against the will of the people.

I think most people want the law, whatever it is, to be followed. That said, no one can really argue that a legislative body, like the city council, isn't a stronger "check and balance" with non-term limited speakers. I can recall Speaker Peter Fortunato Vallone, or looking north to Albany, Speaker Silver and Senate Majority Leader. Our national experience has been that the executive branch, after FDR, alone was term limited. Otherwise, the voters seem to have a 3-term limit for most executives.

However, it is true that voters can term limit anyone they don't like at the ballot box. A question left for historians to answer: Is the public right when it wants terms limits across the board, or is that something that costs the voters great public servants every now and then? The jury is out on that one, while the "music" plays and good people are forced to look for new "chairs" in 2009 in New York City.

Surely, political consultants, media, printers, and all those who love to hate politics all agree that term limits is a good thing; strange bedfellows. Irony, in living color!

Happy Holidays!

Dated: 12/5/07

/s/

Ravi Batra

Current Council Members don't seem to be inclined to "whimsically dissmiss the voter's will." On the contrary, it appears that Christine Quinn has taken the public temperature (via polling or whatever) and found that changing term limits would be at odds with a large portion of the public will.

It matters little if Quinn took a page "out of Hilary Clinton's playbook." The end result is that Quinn is respecting the public on this issue, which is an important leadership quality for an elected official. Contrast Quinn's stance on term limits with Eliot Spitzer's stance on driver's licenses for undocumented immigrants, where he defied the public will for months and paid for it with the loss of credibility and political capital. Nobody's saying anything about Spitzer for President now...

Moreover, the Clinton playbook has its merits. It did propel Clinton to a U.S. Senate seat and now, to frontrunner for the U.S. Presidency. Must be some good plays in there.

But back to term limits. I hope Mr. Batra responds to the question of whether or not a referendum could permanently restrict the Council from legislatively acting on term limits. Although it may become a question for the courts, Mr. Batra's comments lead me to think that the answer is no.

And the 2009 mayoral contenders may want to pay attention, because if a referendum could supercede the Council's legislative power, then the powers of the Executive would also surely be tested in the same way.

Dear Rock,

I am a fan of your talent, tenacity and straightforwardness. I am delighted to have your good wishes; it makes up for the few who believe in the sport of malice.

As to the 2002 Term Limits case that you recall so well, we did appeal to the Court of Appeals, and felt completely dejected that the court of appeals did not grant leave to appeal. That said, however, there was some equitable logic in the loss in that those council members, like the Hon. Gif Miller, who were being shortchanged with the two term limit equaling only 6 years (4+2) rather than 8 years, when one term was a 4-year term and the 2nd was a mere 2-year term. Local Law 27 “tweaked” this inequity, we argued, in an illegal way by combining two 2-year terms to equal one-term (of 4-year). This is what Randy referred to as “funny math,” that it takes two terms to equal one term. Since the court of appeals didn’t grant leave, we actually don’t have the final word from the highest court that that funny math is legal. Of course, in the absence of such court’s word, it is de facto legal. Plus, it was tough not to want to help the likeable Gif Miller, for he was a star in the democratic sky and he was being shortchanged 2 years.

In any event, the larger issue remains: is a referendum legally stronger than a regular law passed by duly elected representatives? The answer, surprisingly, is "No." There are equal. So, a referendum can be overruled by a regular law passed later. However, if an amendment to the City Charter is made, that Amendment is stronger than the local law. However, that requires a Charter Revision Commission to pass a constitutional amendment which is lawfully adopted by the people. So, if a Charter Revision commission had suggested a ballot question similar to Local Law 27 and it was lawfully adopted than all would be legal, for it is up to the people alone to change the definition of a “term.” In the last case, the court accepted the city council’s override of the mayor’s veto to add two terms of 2-years each to make one term of 4-years. We felt that was unlawful, as only the people can do that. To put it another way, if the politicians can do that, why can’t they also change the term from “4 years” to “40 years,” and then we would have a government of, by and for the politicians.

So, if you want to eliminate the possibility of term limits being removed by regular law, then the people have to ask for a charter revision commission, and if that body favors term limits and the people lawfully adopt same, then, and only then, will the city council be barred from doing away with term limits by passing a regular law. Otherwise, a regular law will overcome a people’s referendum-based law, as they are of equal strength and the latest one controls.

As I have said before, I have grave doubts about term limiting the legislative body. That said, whatever the law is, it ought to be followed as we are a nation of laws, not men.

Thank you for the holiday wishes. Lets have lunch in January; call me.

With regards,

Dated: 12/6/07