Supreme Court, Onondaga County, November 1, 2021

Joseph J. Heath for movant.

Tony Pietrafesa and Anthony J. Paris for petitioners.

John DeFrancisco for Columbus Monument Corporation, petitioner.

John G. Powers, Mary L. D'Agostino and Todd Long for respondents.

By notice of motion dated September 9, 2021, Onondaga Nation seeks leave to file an amicus curiae brief in the instant action (see NY St Cts Elec Filing [NYSCEF] Doc No. 98, notice of mot). A conference was held to set a briefing schedule; said schedule was subsequently reduced to writing and approved by the court (NYSCEF Doc No. 106). Petitioners oppose the relief sought (NYSCEF Doc Nos. 108-109). Respondents support the relief sought (NYSCEF Doc No. 110).

Joseph J. Heath, counsel to the Onondaga Nation (the Nation),

"submits that no party can properly represent [Nation's] interests in this matter or present an accurate factual history of [*2]the events which impact the Nation and its citizens. For instance, at a July 16, 2020 rally at Columbus Circle, in an attempt to say that the statue was about 1934 and not 1492, Petitioner Pirro was reported to have said: 'two Onondaga chiefs attended the unveiling ceremony [in 1934], implying that the statue has been a source of unity not division'. The Nation does not need Mr. Pirro or any other party to speak on its behalf" (see NYSCEF Doc No. 99, affirmation ¶¶ 3-4).

The Nation further proffers that its amicus will bring attention to issues the parties may not address or fully present, including but not limited to:

"a. Columbus Circle is located within the boundaries of the Onondaga Nation Reservation which was recognized by the 1794 Treaty of Canandaigua;

"b. Columbus Circle is also located within the original homelands of the Onondaga Nation;

"c. The Onondaga Nation and its citizens have been{**73 Misc 3d at 969} subjected to five centuries of the devastation cause by European colonialism, including but not limited to ethnic cleansing and removal, illegal takings of 99% of its original lands and waters; boarding schools; forced assimilation and attacks on their culture and language;

"d. One of the more harmful impact of these centuries of colonialism has been the historic trauma felt by the Onondaga Nation citizens, which continues to the present. This monument is a significant cause of historic trauma for the Onondaga Nation and its citizens. [sic]

"e. The Nation played an active role in the Mayor's Panel, with five of its citizens as members, with much historic research and with many internal discussions. [sic]

"f. The Nation would strongly support any decision by the City to relocate or move the monument, partially as a step towards addressing the historic damages of colonialism, partially to help heal some of the historic trauma of its citizens and because the Nation supports the Mayor's June 26, 2021 publicly stated goal of the Panel: 'I think that we can come up with a solution that leads to healing for our community, and that's the goal' " (ibid. ¶ 5).

The affirmation goes on to recount the above points in greater detail (ibid. ¶ 6 et seq.).

The Nation also submits in support of its motion a memorandum of law (NYSCEF Doc No. 103). The Nation notes that the CPLR does not set a standard for allowing amicus briefs (ibid. at 5). The Nation notes, "[i]n cases involving questions of important public interest leave is generally granted to file as amicus curiae" (Kruger v Bloomberg, 1 Misc 3d 192, 196 [Sup Ct, NY County 2003]). The Nation notes that in a matter involving the authority of towns to ban fracking, the Third Department has upheld the practice of allowing amicus briefs (see Matter of Norse Energy Corp. USA v Town of Dryden, 108 AD3d 25, 30 [3d Dept 2013]). The Nation further provided examples of previous amicus briefs it and other Haudenosaunee Nations have filed in federal matters (see NYSCEF Doc No. 103, mem of law at 8 et seq.). The Nation notes the decision on whether to allow amicus briefs is within the discretion of the court and urges the court to grant same.

Petitioners oppose the Nation's application to permit the filing of an amicus brief (see NYSCEF Doc No. 108, aff in opp).{**73 Misc 3d at 970} Petitioners allege a procedural defect in that there is no document from the purported applicant, only Mr. Heath as the applicant's attorney (ibid. ¶ 4). Petitioners note the standards for disclosure in the Court of Appeals rules, concede that they do not apply in this instance, but urge the court to consider them as a guide (ibid. ¶ 5). [*3]Petitioners assert that the Nation has no interest in the matter as the Nation does not own property within the City of Syracuse, pays no taxes, nor asserts a right, claim, or other duty owed by the City (ibid. ¶ 7).

In petitioners' memorandum of law, petitioners amplify their arguments (see NYSCEF Doc No. 109, mem of law). Petitioners again note that there is no standard for amicus briefs at the trial court level. Petitioners note that the Appellate Division, Fourth Department relies on 22 NYCRR 1250.4 (f) for amicus briefs, and that rule provides that the application shall include a brief statement of the issues, shall not duplicate any of the issues raised by the parties, and shall state the movant's interests in the matter at hand (see 22 NYCRR 1250.4). Petitioners again note the application is procedurally flawed as it does not include a copy of the proposed brief, and does not have an affidavit or acceptable statement from the Nation, or make any other necessary disclosure (see NYSCEF Doc No. 109, mem of law at 3-4). Petitioners further note that the sole issue before the court is a question of whether the Syracuse City Charter and associated local laws permit the removal of the Columbus statue (ibid. at 4). Petitioners also report that before the Federal Supreme Court, instances of a sovereign nation seeking to submit an amicus brief typically involve a question of international law or that sovereign's own law (see Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va L Rev 289, 312-319 [2016]). Petitioners' final argument in opposition is that the applicant's proffered arguments will distract from the legal issues at hand (see Price v New York City Bd. of Educ., 16 Misc 3d 543, 553-554 [Sup Ct, NY County 2007]). Petitioners oppose the relief sought.

Respondents City of Syracuse and Mayor Walsh support the Nation's application to submit an amicus brief (NYSCEF Doc No. 110). Respondents assert that the Nation has satisfied the "relatively lenient New York common law standard for granting leave to appear as an amicus curiae" (ibid. ¶ 4). Respondents do not explain this conclusory statement. Respondents urge the court to allow the Nation to "present an important viewpoint and perspective" (ibid.).

{**73 Misc 3d at 971}The Nation replies and reiterates its arguments (NYSCEF Doc No. 113 et seq.). The Nation addressed an alleged defect raised by petitioners by including the affidavit of Tadodaho Sidney Hill, a member of the Onondaga Nation Council of Chiefs (see NYSCEF Doc No. 115, Hill aff). Tadodaho Hill states: "The Nation seeks to join this matter, on this limited basis, to clearly express our support for the City's decision to move the Columbus statue, and the cooperative, open, transparent process which the Mayor employed in his efforts to bring the entire community into this decision" (ibid. ¶ 3).

Oral arguments were held on October 27, 2021.

Discussion

The Onondaga Nation seeks permission to appear as an amicus curiae in the instant matter. At the outset it must be made clear that the Nation does not seek to intervene either pursuant to CPLR 1012, 1013, or 7802 (d).

"[T]he function of an 'amicus curiae' is to call the court's attention to law or facts or circumstances in a matter . . . that might otherwise escape its consideration; it is a privilege and not a right; he is not a party, and cannot assume the functions of a party; he must accept the case before the court with issues made by the parties, and may not control the litigation" (see Kruger at 195-196, citing Kemp v Rubin, 187 Misc 707, 708 [Sup Ct, Dutchess County 1946]).

Factors to be considered on whether to permit the filing of amicus curiae briefs include:

"(1) whether the applications were timely; (2) whether each application states the movant's interest in the matter and includes the proposed brief; (3) whether the parties are capable of a full and adequate presentation of the relevant issues and, if not, whether the proposed amici could remedy this deficiency; (4) whether the proposed briefs identify law or arguments that might otherwise escape the court's consideration or would otherwise be of assistance to the court; (5) whether consideration of the proposed amicus briefs would substantially prejudice the parties; and (6) whether the case involves questions of important public interest" (Anschutz Exploration Corp. v Town of Dryden, 35 Misc 3d 450, 454 [Sup Ct, Tompkins County 2012], citing Kruger).

In this instance, there is no question of timeliness raised by{**73 Misc 3d at 972} the parties. However, the granting of this motion would require further adjournment of the matter. The original briefing schedule required all papers submitted in preparation for a hearing on the amended petition on October 27, 2021 (see NYSCEF Doc No. 17, so ordered letter). The parties sought a brief adjournment of certain dates, but maintained the October 27, 2021 hearing date (see NYSCEF Doc No. 28, so ordered letter). In light of the instant motion, the court adjourned those dates to accommodate the hearing of the Nation's request, including the hearing of the amended petition now on December 9, 2021 (see NYSCEF Doc No. 106, so ordered letter). Were the court to grant the relief sought, the court would have no choice but to push the matter out even further. Timeliness is further an issue as the injunctive relief alluded to by the Nation's counsel was already addressed by the parties (see NYSCEF Doc No. 17, so ordered letter ["In addition, by this correspondence, Respondents confirm in writing their oral stipulation made during the conference that they will not undertake any of the presently unperformed formal administrative steps necessary to reach a final administrative determination as to whether . . . remove or replace the Columbus Monument until this Court has rendered a decision on the presently pending Petition, and any associated Motion to Dismiss"]). Timeliness is a concern of the court.

The Nation asserts it has an interest in the matter "due to its impact on the Nation citizens and due to the Nation's involvement in the process which resulted in the challenged decision" (see NYSCEF Doc No. 103, mem of law at 10).

The Nation generally asserts its interests cannot be represented by any other party (ibid. at 3). During the Nation's oral presentation, the Nation's counsel stated that neither party can adequately represent the Nation's position regarding the decision-making process which the respondent Mayor initiated (see tr at 11). This stands in opposition to Tadodaho Hill's statement that the purpose of the Nation's appearance is to support the City's position (see NYSCEF Doc No. 115, Hill aff ¶ 3).

However, items four and five can in no way be answered in the Nation's favor. The Nation's application is a narrative alleging certain historical facts which do not bear any relation to the question at issue, namely whether the respondents' actions are lawful. The prayer for relief as stated in the amended petition seeks to address the question of whether respondents have the right to remove or move the Columbus statue (see NYSCEF Doc No. 18, amended petition at 29-30). The court fails to see what bearing the Treaty of Canandaigua has on whether the{**73 Misc 3d at 973} respondents may remove a statue such as the one at issue from City property. The arguments proffered by the Nation go to a political question, should the City remove the statue, not a judicial one, can the City remove the statue. Further, by the admission of Tadodaho Hill, the purpose of the Nation's application is solely to express support for the City's position. [*5]Related is the question of prejudice. The comments offered by the Nation can only be seen to provide background of their cultural beliefs of this situation instead of offering legal arguments related to the removal of the subject statue. During oral arguments it was stated by attorneys for the Nation and respondents that the petition was filled with historical narrative; therefore the Nation should do so to "balance" the record (see e.g. tr at 18). It cannot be stressed enough, the purported histories of different communities are of no moment. This court is not an arbiter of history. The sole consideration before this court is whether respondents have the authority to remove the statue and directly related legal issues. Further, if as is suggested by Attorney Heath's affirmation, Columbus Circle is "within the boundaries of the Onondaga Nation Reservation which was recognized by the 1794 Treaty of Canandaigua" (see NYSCEF Doc No. 99, affirmation ¶ 5), and the Nation is asserting some sort of an ownership interest in Columbus Circle, then merely appearing as amicus curiae in this matter is not sufficient to claim such rights. This alleged ownership interest was further amplified during the Nation's oral presentation when counsel stated: "In terms of new areas of law and arguments, one of them is that this is Indian country. This is a reservation. And that certainly is a factor that isn't raised by either party" (see tr at 28). In Kruger, the court noted an amicus curiae "must accept the case before the court with issues made by the parties, and may not control the litigation" (Kruger at 195-196). This forum is not appropriate for the Nation to assert an ownership interest of property upon which the Columbus statue is situated. Further, the raising of the ownership issue which is not a proper question before this court would be prejudicial to the rights of the parties. The court further notes that counsel for the respondents asserted that on the legal issues, respondents need no help (see tr at 18). As for the final question, as conceded by the parties, this is a matter of important public interest.

It was also proffered by petitioners that there is no proposed brief which is also a fatal defect. The court does not agree with{**73 Misc 3d at 974} that position, but assuming the accompanying memorandum of law was the operative document, for reasons stated above, the arguments contained therein are unrelated to the questions before the court, and the court finds the memorandum unavailing. Alternatively, as urged in the Nation's reply, the Nation would seek time to submit a brief. As is required by the case law, the papers submitted in support of this motion include a summation of the movant's arguments. There are no unique legal issues raised by movant, which are related to the matter at hand, to support the granting of amicus curiae status. This court needs to get to the merits of this case.

Now, therefore, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it is hereby ordered that the motion brought by the Onondaga Nation seeking leave to appear as amicus curiae is denied.