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Petitioner Seeks Resolution Regardng Time Table for Election Law Cases

It is well recognized that the time table for Election Law cases is extremely tight. Election proceedings have a preference over civil and criminal matters and thus the rules with regard to service are modified to reflect a method of service reasonably calculated to complete service in a timely fashion, but once ordered by the Court there must be strict compliance. In the instant proceeding, an ex-parte application was made to the Special II Justice for “So Ordered” subpoenas to be served on the witnesses and subscribing witnesses to the Respondent Petition, Volume 1, so that Petitioner could proceed with the case on the return date of the Order to Show Cause. Numerous people appeared pursuant to the subpoenas, however they reported to the courtroom of Justice also on the fourth floor, presumably because he had signed the subpoenas. The undersigned’s name appeared below the index number on the subpoena, however Justice’s part clerk apparently mistook the subpoenas as returnable in that part because another election law case is pending there. A call was made by someone in that part to Johnson’s counsel’s office rather than Petitioner’s and the people were told they were free to leave without ever having been referred to the undersigned’s part for the hearing. Both counsels were present before the undersigned during that morning, as the Order to Show Cause was returnable at 9:30 a.m., in this part.

It is conceded that respondent’s counsel brought those responding to the subpoena into a conference room to speak with them. An intern associated with Petitioner’s counsel was present, though no witness testified that he said or did anything. Respondent’s counsel admittedly unilaterally dismissed the people who answered the subpoena, without leave of the Court or authorization from Petitioner’s counsel.

On the record, respondent’s counsel advised the Court that he spoke to four people with regard to the subpoenas. He indicated that they showed him the subpoenas and he advised them that he “would make a motion to quash if they like and represent them for the purpose of the motion to quash because they were clearly not served properly.” At the time he was unaware of the Court Order setting forth the manner in which the subpoenas were to be served.

Pursuant to CPLR §2304, a motion to quash shall be made promptly in the Court in which the subpoena is returnable. “A motion to quash may be made on behalf of a non-party witness by the witness or the witness’ lawyer, or by one of the parties or a party’s lawyer.” A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena on the jurisdiction of the issuer of the subpoena. Clearly, respondent’s counsel was authorized to make a motion to quash on his behalf. The Court will not speculate as to why he did not do so.

Once there has been compliance with a subpoena, a motion to quash is no longer available. Absent a timely objection, a check is a valid medium of tender. Upon oral argument that the tender of a check was rejected by respondent’s counsel, Petitioner’s counsel immediately tendered cash to respondent’s counsel on behalf of the four signatories he allegedly represented, thereby curing any purported defect. The record is not clear what counsel did with regard to the first series of checks or the cash that was tendered, but at least one of the witnesses indicated that he did not receive the cash.

Some signatories did appear on the adjourned date, pursuant to a second subpoena, which was also accompanied by a check and no one raised any objection to the form of payment, thereby waiving that claim. Johnson’s counsel no longer took the position that he was not representing them, nor did he make a motion to quash as to the second round of subpoenas. Inasmuch as the witnesses testified without objection, the motion to quash is no longer available. No basis was set forth to quash the subpoenas, which were served pursuant to the ex-parte order of Justice, and were accompanied by proper tender and which properly sought the testimony of the signatories to the subject petitions as well as that of the subscribing witnesses. For the foregoing reasons, the motion to quash the subpoena is denied.

Respondent’s counsel’s representation to the Court and opposing counsel to the contrary, notwithstanding, the testimony adduced at the hearing called into question whether counsel ever represented the individuals who answered the subpoena.

The motion to disqualify respondent’s counsel is denied. The disqualification of an attorney rests in the sound discretion of the Court. A party is entitled to be represented by counsel of his own choosing. In the highly specialized field of election law, especially in light of the very limited time allotted to such proceedings disqualification would surely have an adverse impact on Johnson and under these circumstances, is not warranted.

On July 22, 2008, plaintiff filed Specific Objections to the Working Families Parties Designating Petitions of respondent for the public office of Member, New York State Senate, 7th Senate District, with the Nassau County Board of Elections. The Petition, filed on July 10, 2008, totaled nine (9) pages and contained thirty five (35) signatures. Plaintiff objected to all thirty five (35) signatures. Seventeen (17) signatures are required for designation.

A proceeding with respect to a petition shall be instituted within fourteen (14) days after the last day to file the petition, or within three (3) business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later. As the Commissioners ruled the petition was valid, the petition and any cross petition had to be served within fourteen (14) days from July 10, 2008, the last day to file the petition or July 24, 2008.

No evidence was proffered at the hearing to establish that any of the signatures were forgeries and the witnesses’ testimony was to the contrary. The objections based upon the alleged forgery are deemed abandoned.

It is well settled that where a person has previously signed the designating petition of another candidate for the same public office the later signature should be stricken as duplicative. The duplicative signatures appeared on Johnson’s designating petitions filed with the Board of Elections on July 10, 2008 and Lilavois designating petition filed on July 10, 2008. Inasmuch as both petitions were filed with the Board of Elections (BOE) (and as stipulated neither has been declared invalid), the later signatures are properly invalidated.

The BOE did not rule on signatures alleged to be invalid because the person signed a prior petition. The Court finds that five of the signatures obtained by Rantz must be invalidated because the person had previously signed another petition. The signature on page 6 line 1 is invalid because the person previously signed a petition for Lilavois on June 14, 2008, at page 2 line 5; page 7 line 1 is disqualified due to an earlier signature for

With regard to those signatures allegedly taken by subscribing witness Yellin, the Court finds that three must be invalidated because the signatories had signed a prior petition for another candidate for the same office. It is noted that the objections listed the “SAP” designation at page 1 line 1 rather than page 1 line 5, which is the signature duplicative of one appearing on the Lilavois petition, page 16, line 1and is properly invalidated, (Venuti v.Westchester County Board of Elections, supra). The following signatures are invalidated: at page 1 line 5 of Johnson’s petition, due to his earlier signature for Lilavois at page 16, line 1 on June 21, 2008.; page 2, line 1 also signed for Craig Johnson on page 5, line 4; page 2 line 2 also appears on a Craig Johnson petition page 5 line 5.

While Petitioner filed a specific objection with regard to the use of a First Name Only on page 1, line 4 of the Petition, the BOE made no ruling on that objection and no testimony or evidence was submitted with regard to that objection. At first blush it appears that the signature consists only of a first name, but upon closer inspection, the surname appears in the residence field. The Court will not invalidate the signature on that basis. That objection is deemed abandoned.

Petitioner specifically objected to the signature at page 9, line 4 on the basis that only the first initial, rather than the full first name was present. A review of the petition supports this objection, however no testimony was offered to substantiate that objection and the signer testified that the signature on the Petition was hers. No evidence was submitted to establish how she signed the registration card with the BOE, nor did the BOE rule on that objection. That objection is deemed abandoned.

There can be no doubt that the right and privilege of our citizens to participate in the election of our representatives goes to the core of what it means to be an American. Too few of our citizens avail themselves of the right to vote and this Court is loathe to discourage anyone from actively participating in the election process. We are however a nation of laws, and while the Election Reform Act of 1992 sought to remove many technical barriers to a proposed candidacy not tainted by fraud or wrongdoing, it did not eliminate all of the requirements established to insure the validity and integrity of the process.

The Court is especially cognizant of the concern that the signatories may become disenfranchised if their candidate of choice is not permitted on the ballot of their chosen party. Many of them came to Court twice, fearful that they had done something wrong. From their testimony, it did appear that they knew they were signing a Petition on behalf of the Working Families Party. In light of the fact that some had signed a prior petition for another candidate, their support for respondent was not as clear cut.

“Disenfranchising” voters is not just a new buzzword or catchall phrase to cover up sloppy petition gathering practices. The requirements of Election Law § 6-132 establishing the procedures for a subscribing witness, distinguishing the requirements for a party member as compared to a notary, are to prevent fraud, deception, confusion and threats to the integrity of the system. Failure by parties to abide by the simple procedures may have the result of a petition being invalidated, but it is their failure to comply, not a mere technicality, that causes such a result. All voters can take comfort in knowing that the process is free from fraud. To turn a blind eye toward the blatant disregard of the process and statutory requirements would divest the voters of the confidence they have in the law and thus would fail to protect the voters in the exercise of his or her franchise.

Lacking the necessary number of signatures, to wit: none have been found valid; the petition is invalidated and the Board of Elections is enjoined, restrained and prohibited from putting the name of the Respondent-Candidate on the official ballots to be used at the September 9, 2008 Working Families Party Primary Election for the public office of Member of the New York State Senate, 7th Senate District of New York.

If you are involved in a similar case, seek for the legal advice of Stephen Bilkis and Associates. Call us now. We have offices throughout New York City to serve you.

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