Albany Debriefing:“D-Team:” No Jurisdiction? Then Court Has It.

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Ten O’Clock All News Final, Filed 2/18/02, 9:45 PM EST: Larry Delgado’s legal team was encouraged by several indications that the Court of Appeals was taking their argument for vindication of Judge Nicolai’s ruling for a remedy, seriously at Court of Appeals Hall in Albany, Thursday.

Jeffrey Binder, Delgado attorney, gave WPCNR his analysis of the historic arguments that unfolded Thursday afternoon. A ruling could come from the Court of Appeals Tuesday afternoon.

JEFFREY BINDER, DELGADO DUELLIST, shown at right, with Larry Delgado, center, and John Ciampoli, left, in a picture of the trio taken last November, asked if he was feeling good about the Court of Appeals reaction to their case Thursday, said, “We are. We’re pleased that the court decided to focus not so much on the procedural flaws as were pointed by Adam, but on the real substantive election law issues, whether the court has the power to remedy a wrong that has been done in an election law context rather than just wait and ask the attorney general.”

Photo by WPCNR

The “quo warranto” Quandry Queried

Asked about the quo warranto procedure that was available to the Delgado team from the outset, that is at the center of the Adam Bradley appeal, Binder said that was true it was available, however, “You don’t even get the right to (go to quo warranto). You have to ask the attorney general. All you get under the present law is the opportunity to get into position to get a remedy.”

We asked why he felt the Appellate Division , Second Department, of the Supreme Court had granted the Felice remedy handed down in 1992,. Binder said, “they feel the courts should have the final word (on jurisdiction). They feel that the present state of the election law, (remember the court is a coequal branch with the legislature, they can make law just as binding as the state legislature).

” I think Mr. Bradley lost sight of the law-making capacity of the Court of Appeals.”

Appellate Division a Trail Blazer

Binder characterized the Appellate Division, Second Department, as “a progressive department which recognizes that the court needs to fashion remedies in circumstances where you have problems with a general election. Why is it not important? Why shouldn’t the court have the final say?”

Observes several judges “very concerned.”

On Friday afternoon, Binder gave WPCNR his obeservations of how the arguments went Thursday:

“Yesterday several of the justices were very concerned that the final say in these matters is had potentially by the attorney general who is a political person. A little too much discretion is placed in his very hands.”

“Judge Kaye, actually felt that the court ought to be an arbiter in these situations. Judge Levine asked, ‘what if the attorney general doesn’t go for a quo warranto, then would there be an access to justice, would there be a common law remedy. Judge Levine was concerned about ‘what if the AG doesn’t go?”

Judge Graffeo Expresses Concern, Too.

Checking his transcript, Binder noted, “Judge Graffeo, the most junior justice, questioned Mr. Bradley whether it was a mandatory obligation of the attorney general to hear these procedings. Bradley had to answer ‘no.’ There’s a screening method, and it’s discretionary.”

Court Weighs Speed of Court vs. Speed of the Attorney General.

“There was a great concern about whether the courts have the capacity to act swiftly in resolving these things, or whether the swiftness lies with the attorney general, or whether it’s swifter to get the courts involved,” Binder reports. “Our argument was, look what happened in our case, it was very swift. Judge Nicolai heard the case very quickly. We had an evidentiary proceeding very quickly to determine what the facts were, and actually had an election scheduled before the end of the year.”

The Binder “take” on Court Position:

Binder, said, “I really don’t have the answer to that, other than that the court generally was concerned that if the court starts to get involved in these matters, whether they have the capacity to provide both sides with evidentiary hearings in a timely fashion.

“The court was less concerned with the outcome in our case, rather than what’s going to happen in the future. Which gave me great comfort. They’re looking towards the future, as if they had made up their mind on the present.”

On the relevance of old cases.

Binder said that, “just because a case is old, doesn’t necessarily mean it’s bad law. Case law ebbs and flows. It changes over the course. That’s why we have the common law doctrine. It’s an evolutionary process.

“Modern times, the growth of elections, the lack, inability of machines to keep pace with the numbers of elections, the kinds of elections, the complexity of elections are causing more and more problems and the law has to adjust.”

Bradley’s Position Towards Court’s Law-Making Abilities “Dangerous.”

WPCNR asked how Binder reconciled Mr. Bradley’s position that the court does not have the right to fashion a remedy. Binder said he felt this was an “aggressive position,” by Mr. Hockley’s counsel:

“You know, he said that to the court, which is a very, very aggressive thing to say to the Court of Appeals that you have no power in this arena, because the legislature hasn’t spoken. Well, excuse me, but the court is a co-equal branch of government to the legislature, and can step in, and should step in when the legislature is silent, or even when the legislature is wrong.

“Maybe up until now we never had a four square set of facts that crystalized the issue so easily and clearly for the court to apply them in this way. It’s very dangerous to say to a law-making body, which the Court of Appeals is, that you have no power.”

Binder said the judges looked “very very disgusted at that remark. A few of the justices sort of scrinched their faces.”

The Issue of the Legislative Statute Disputed.

Binder said they took issue with the narrowest interpretation of the statute, which Bradley is reading, forbids court jurisdiction in general elections:
“The court was very concerned,” Binder said, ” if they step in now, and say the Supreme Court does have jurisdiction with respect to general election matters, which we believe they have had all along, and the case law that developed that said they didn’t was wrong, because the Supreme Court is a court of general jurisdiction.

“So unless you specifically carve out jurisdiction from the Supreme Court, it has it anyway. The fact that the statute was silent on it doesn’t necessarily mean that they have no jurisdiction.

“The fact that the statute specifically conferred jurisdiction to the court with respect to primaries goes to the fact that primaries are essentially private party matters. It’s kind of like private corporate matters.”

Binder said the statute was created to address situations where in primaries, parties acted to prevent certain Americans from voting. The statute specifically wanted to address those types of situations.

“That doesn’t mean that because the statute is silent on it (general election matters), you reason they have no power. That’s why the court of appeals took the case. You now have a body of law developed in the Second Department and a body of law that has developed all around the rest of the state that are in conflict, and the Court of Appeals has to opine and straighten this out for everybody.”

Binder Expects Tuesday Decision.

Binder said he expected a swift decison because of the court concern about how swift justice could occur if the courts were to involve themselves in election matters,

“They were discussing why it took the Appellate Division four weeks to make a decision. They were sort of interested in our opinion as to why it took four weeks.”

Defining moment at the start of the hearing.

Binder said there was one defining moment at the beginning. He said that Mr. Bradley started with his argument about the procedural matters, and after three minutes, “Chief Justice Judith Kaye, told him to ‘hold it,’ and said “could we please get to the underlying relief.’ I’m reading those tea leaves. Remember Justice Kaye’s mantra has been ‘access to justice.’ She is very concerned about the threshold when the courts become involved.”

Binder salutes Bradley’s determination.

In his final comments on the three-month process that reached the height of drama Thursday, Binder complimented his adversary, Adam Bradley.

“Let me just say to Adam’s credit, he did a very good job. He did a thorough job in breaching the issues he thought were relevant to the court. I read his brief. It’s nicely put together. I have to tell you, I admire his doggedness. He’s a solo guy to stand alone and stand against the tide, on matters of principle, and sometimes those guys come out on top. I admire him, I really do. I admire his guts. I think he’s a good writer. From a lawyer’s point of view, I admire his doggedness.”

If the justices do not issue a ruling Tuesday, it is next anticipated by a clerk of the court that the decision will be handed down March 12 or 14.

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Albany Debriefing: Bradley: Constitution Issue. Dead Judge Behind Issue.

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Drivetime Edition, Filed 2/18/02, 4 PM EST: Glen Hockley’s attorney, Adam Bradley focused on the key constitutional question of whether the court has the right to call for a new election in the Hockley-Delgado disputed election for WPCNR Friday. Mr. Bradley spoke to WPCNR at length on his argument before the Court of Appeals Friday. A decision might come Tuesday from the Court of Appeals, or as late as March 12.

ADAM BRADLEY CONFIDENT, after arguing before the state’s highest court Friday afternoon. He told us, “I thought it went well, these were very bright jurists who I believe will set the rule of law in this state and that’s I think, a very important thing. The fact that they took the case, recognized that there were some very serious issues both procedurally and as to the rule of law regarding elections…..very cognizant of procedural problems, and also very cognizant of the point I had raised.”
Photo by WPCNR

End of the Legal Line, Maybe.

Mr. Bradley appealed Judge Nicolai’s ruling (made after a machine was found to be jammed in District 18),for a new election in District 18 between all six council candidates, to the Appellate Division, Second Department of the New York Supreme Court. When the Appellate Court upheld the Nicolai election “remedy,” only expanding it citywide, he appealed their decision, to Court of Appeals.

The case was heard in Albany Thursday afternoon. A decision could come as early as Tuesday, and if not Tuesday, it is expected not to come until March 12 or 14, according to Laurene Tracy, of the Court of Appeals.

Bradley spoke at length with WPCNR Friday about what he considered the most important issue of the case:

“It had nothing for me waiving the right to trial or not. It had to do with the Nicolai trial court conversion to a plenary action, depriving the right to a jury trial. Because Article 16 (of the Election Law) powers don’t give you a right to a jury trial, but also does not give the court the right to adjudicate the election. Which is exactly what this case was plead under. It never mentioned plenary relief at all, it was a straight, “garden variety” petition, for what is really a “garden variety” election law case. We have broken machine cases, probably thousands of them.”

WPCNR asked if this went to the right to inspect the machines. Bradley said, it was beyond that:

Courts Right to Order an Election is the Big Enchilada.

“No, no, no, because inspection is different. This issue is a much larger issue. It goes to what are the rights of courts to do certain things that weren’t provided by statute. It goes to whether the legislature should make a change in the law.

The irony of the whole thing is, the (New York) legislature purposely gave the courts wider opportunities to call new elections in primaries than in a general election. In primaries you don’t have a “quo warranto” right. There’s no right to public office after primaries. They purposely gave rights in primaries that they didn’t give in general elections. What this unheralded Felice Doctrine (basis of the Appellate Division ruling), did was it enlarged courts’ remedies in general elections to be even larger than what the legislature said (we want you to have these rights in primaries) than in general elections.”

WPCNR notes that the Felice case (involving an election in Suffolk County where a voting machine jammed, where a citywide election was called for) was the case Judge Francis Nicolai used to convert the case to a plenary judgment.

The vagaries of quo warranto

Quo warranto was, “originally a writ ordering a person to show by what right he exercises an office, franchise, or privilege. In New York state, it is a legal proceeding undertaken to recover an office from the person in possession, initiated upon an information.”

Quo warranto is initiated by an officer-seeker directly with the attorney general, who has the sole right to open procedings. Larry Delgado’s attorneys, John Ciampoli and Jeffrey Binder, were poised to file a quowarranto action had Glen Hockley been appointed to the Council, or if the Common Council had appointed an interim councilperson.

A quo warranto may still be filed by the Delgado team, Binder said Friday, should the Court of Appeals rule against Mr. Delgado, awarding Mr. Hockley the Council seat.

A thorny issue, not reducible to soundbites

Bradley said, he was uncomfortable going into constitutional issues: “One of the hard parts for me, these are not issues that are easily condensed into sound bites. It’s an injustice to try and do that, because it can’t come out right. I wrote a 70-page brief for the Court of Appeals.”

A good argument in Albany.

Asked how he felt his argument had carried before the seven justices Friday. Bradley said, “It was great. I enjoy arguing before the court of appeals. I enjoyed arguing before the Appellate Division. It’s always a challenge to appear before learned jurists, and certainly those that are on the Court of Appeals are some of the best.”

Expresses optimism that the judges were tuned to his brief

“My interpretation is they are very clear on all the procedural errors that occured here and I think it puts them in a dificult position,” Bradley told WPCNR. “I think the more interesting legal issue is the other one that I raised. I think they were intrigued as am I, by the lengthy analysis that was done.”

“Judging from their comments, they recognized the flaws that Felice created. I also think they are troubled by the fact that the legislature didn’t grant them any equitable rights to do these things. It’s a funny issue. It’s almost a separation of powers issue in some strange way because I think that they recognize they are limited but really want to be able to find a way to do things.

I also think they recognize very clearly my point on this, that if New York was Florida, under the Felice doctrine, we would be having a jury trial for seven months, and we wouldn’t know who the president is.

The problem with the Tarrytown Case.

Bradley’s voice rose passionately as he once again attacked the Felice decision that allowed the new election in Tarrytown:

“The Felice doctrine violates the constitution. Courts have no inherent power. They don’t have any legislative authortity for remedy, and they have no inherent power. Therefore, They have no equitable jurisdiction. As a result, the only jurisdiction they could obtain would be through the legislature who has not given it to them. The legislature, if they were to give it to them, would have to give it to them in a way that would not violate the right to jury trial. (quo warranto).”

Confident the Court of Appeals will see it his way.

Mellowing, Mr. Bradley expressed optimism, “Legally speaking, I don’t think this is a close issue. The procedural issues require dismissal under Frye & Gershel and the lengthy history as I documented, very clearly to the court indicates that there’s no inherent power in the court to order these remedies. That they are restricted, both by both the law of prior precidents, our statutes, and as a result, I would think they would have to 1, dismiss the petition for want of jurisdiction, and 2, eliminate any right to the remedy for lack of subject matter jurisdiction.”

Compares the case to the Florida Presidential situation.

Bradley pointed out that Florida courts weren’t given that power to call a new election,

” Even the Florida supreme court never had the power to call a new election. All the Flordia court could do, which is all ny court could do, would be to look at the ballots the punchcard ballots and determine the legality of the voting of that ballot. They could not call a new election.

The matter of inspection clarified by Mr. Bradley.

Bradley elaborated on what inspection meant: “New York courts are not empowered to call new elections.They are empowered to rule on the legal rulings on paper ballots and correct obvious tabulation errors. There’s no tablulation errors here. The tabulation is correct. The Court is not empowered to call new elections. There are probably 500 to 1000 cases just like this one where the courts acknowledged they did not have this power, despite the fact that they’d like to do it. They can’t. But guess what they said, but you do have a remedy, your remedy is quo warranto.”

Death of a judge in 1937, basis for the Felice decision.

The Felice decision that the Appellate Division, Second Department made in 1992, was based on a case that, in turn had used a case from 1937, to declare a plenary action. Bradley gave us the bizarre details of that case that is the basis of the Nicolai ruling in December.

Bradley unfolded the drama for us:

“The time is 1936. A Democratic candidate for surrogate, Mr. Shields is up by 250 votes in heavily Republican Westchester County. However, that year ’36, was a Roosevelt landslide, and unfortunately for Shields, after paper ballots are counted, Mr. Slater his opponent, takes the lead and wins. Unfortunately for Mr. Shields it looks like he’s lost the election. He waits until Slater takes office, speaks to the attorney general and the AG is about to start the quo warranto process, protesting the paper ballot count.

“But, what should happen at the end of February, 1937? Mr. Slater dies in office, six weeks into his term.

“Now we have a vacancy for surrogate. But guess who appoints the vacancy? Governor Lehman, a Democrat. Governor Lehamn appoints Shields. But he’s not happy.

“Shields had started the quo warranto process. But, the Governor has appointed him. He’s only allowed to carry the term until the next election, which is November, 1937, when he has to run again in a heavily Republican county without the benefit of Franklin Roosevelt on the ballot. If he had won the quo warranto process he would have had a full term until 1944.

Bradley finished the story: “He speaks to the attorney general. The attorney general says, you have no remedy anymore. You’re in office, we can’t do a “quo warranto” proceding to oust yourself. So what did he do? He filed a declaratory action. What did the court do?

The court said, in this unusual circumstance, when there is an absolute unavailability of “quo warranto,” we are going to allow the plenary action. Because of that Shields was able to waive a right to a jury trial, because he had a no adversary. Slater wasn’t going to contest it. That was the fact pattern of the one case where declaratory judgment was used that the Corrigan case was referring to that the Felice doctrine used to suggest it could do what it did.”

Looking at the 1992 Second Department decision.

“The Tarrytown case used Felice in the second department,” Bradley said. “The first, third and fourth department (of the New York Supreme Court), never have wavered from their (legislature’s) position. The second department in 1992, created a doctrine that nobody else is using, and it was not used prior to that. They (the second department), cited a case called the Corrigan case, which was based on a case in the 30s, Shields v. Flynn, which is totally different.

Bradley patiently drove home his point to us that he made to the Court of Appeals:

“The point of Shields vs. Flynn was you can use a declaratory judgment action if a “quo warranto” proceding is absolutely unavailable or impossible, not SOON to be available. (As it is for Mr. Delgado) If this case is dismissed, “quo warranto” would be available for 6 weeks. Shields vs. Flynn is a very unique set of facts. Corrigan said that you may have a right in “quo warranto” or a possible declaratory judgment action, if you can’t have quo warranto. The question is…is it now an available remedy in situations where quo warranto will be available.”

“If that is the case, ” Bradley added, “it goes against the legislative intent when they drafted the election law. The legislature said you have this right for primaries, and you don’t have it for general elections. It’s very specific.”

“Former Chief Judge Cook,” Bradley said, “made very clear in his own decision when he was a trial judge, that the silence of the legislature on our rights in general elections and their explicit granting of that right in primaries makes clear what our limitations are.”

The Court of Appeals will be making the call, perhaps as early as Tuesday.

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Albany Arguments: Court of Appeals Mixes Px for Remedy in Election Law

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Midnight Special Edition, Filed 2/15/02, 12:00 AM EST: Observers of the Court of Appeals arguments on the Delgado-Hockley matter Thursday checking in with WPCNR indicate the Court is taking the dilemma of the Delgado Hockley jammed voting machine in District 18 and mulling how Election Law should provide for remedies to such situations in the future.
Our correspondent at the Court of Appeals Hall in Albany Thursday noted that the panel of seven Court of Appeals Judges were keenly interested in several constitutional issues raised by the Larry Delgado-Glen Hockley jammed voting machine in District 18, which has kept White Plains at a 6-person Common Council for six weeks.

Three justices queried attorneys Adam Bradley and John Ciampoli for approximately one hour. Their focus was on the issue of whether present Election Law even permits a remedy for future cases of this kind where a wrong has been identified.

The Judges, our observer reports spent 25 minutes of time with each attorney. A veteran of these procedings, our correspondent said this was an unusual amount of time for the judges to spend on arguments, and perceived this as evidence of their concern.

The question of procedure (the Delgado failure to purchase a second index number raised in the Hockley appeal), did not raise court concern as much as the conumdrum of a remedy and whether it was possible under current Election Law.

A decision is expected to be reached in a matter of days over the weekend or early next week. From here, one of the justices will report on the case to the rest of the judges, and they will analyze his or her decision.

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“The Planning Man” to Sell White Plains for Nelson-Vrooman

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10 O’Clock All News Final, Filed 2-14-02,10:30 PM EST: Mike Graessle, recently retired Planning Commissioner for the City of White Plains, joined Nelson-Vrooman Associates, Inc., of White Plains, as Senior Associate/Administrative Director Thursday.
Nelson-Vrooman Associates President, Bill Vrooman, in a prepared statement, announced the appointment saying, “Mike Graessle brings an expertise that enables our firm to provide a more expanded level of service to our clients and customers. His knowledge and familiarity with municipal processes and procedures can be of immense help to the customers, clients, and developers or commercial enterprises seeking locations in White Plains and the other Westchester communities we service.”


Photo by WPCNR

Mr. Graessle, interviewed by WPCNR, said that he had passed the New York State real estate sales license examination just last week, taking it with approximately 300 other aspiring real estate agents last week in Manhattan. He said, he looked forward “to selling White Plains, because that’s what I’ve always done.”

Prior to being Planning Commissioner for the City, Graessle was Village Manager of Port Chester, and prior to that was Executive Assistant to Mayor Alfred Del Vecchio for seventeen years. Graessle was involved extensively in the City Urban Renewal Program in the 1970’s and 1980’s. Brought back to White Plains by Mayor Joseph Delfino as Planning Commissioner in 1997, Graessle recently has helped drive the makeover of White Plains for the 21st century. In 2001, his Planning Department reviewed over $600 million of new construction.

Mr. Vrooman’s statement said Graessle’s professional affiliations and vast knowledge of zoning, planning, real estate and traffic in White Plains make him a new resource for the firm’s potential clients: “Mr. Graessle has the knowledge and access to information that is critical to potential home buyers and sellers, and developers.

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Delgado vs. Sunderland Makes Legal History

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DRIVETIME EDITION, Filed 2/14/02, 3:00 PM EST: Adam Bradley and Jeffrey Binder, John Ciampoli, are presenting their arguments before the 7-judge Court of Appeals in Albany Thursday afternoon. It is the final act of the 2002 disputed White Plains election for Common Council between Glen Hockley and Larry Delgado. Mr. Delgado expects a decision early next week.
The action is taking place at the historic Court of Appeals building in Albany at 2 PM before the seven appointed justices of the Court of Appeals: Chief Judge Judith S. Kaye, and Associate Justices, Honorable George Bundy Smith, Honorable Howard A. Levine, Honorable Carmen B. Ciparick, Honorable Richard C. Wesley, Honorable Albert M. Rosenblatt, and Honorable Victoria A. Graffeo.

COURT OF APPEALS HALL, ALBANY: New York State’s highest court is the end of the line for the Delgado-Hockley disputed election. Arguments took place Thursday afternoon in a courtroom that strikes awe and admiration into New York State Lawyers. John Ciampoli, Larry Delgado’s attorney, tells us it is “his favorite courtroom,” and he speaks of the oaken paneled walls, the portraits of justices of the past hanging on its walls. Edward Dunphy, White Plains Corporation Council, is most impressed by a fireplace in the court room, tall enough, “that you can walk into it.” For a New York attorney, arguing at the Court of Appeals is like a ballplayer playing in Yankee Stadium. The exterior front capitals and bases are copies of those of the Temple of Nike Apteros on the Acropolis.

Photo from the Court of Appeals website

Dunphy recalls what it is like arguing before the Court of Appeals

WPCNR interviewed Edward Dunphy, city Corporation Counsel, last Friday, on what it is like for an attorney to argue in the state’s highest court:

< “What happens at the Court of Appeals, there are seven members and the attorneys will argue the case. After the case, what happens is the clerk has already prepared an index card for each case that’s argued that day. The cards are face down when they (the justices) come off the bench and each judge picks up the card, and that’s how the case gets assigned to the judge who’s going to report on it. Then they conference it the next day and make a decision.”

CITY CORPORATION COUNSEL, EDWARD DUNPHY, a man who’s been there, shared his thoughts on arguing before the state’s top court in his past.

Photo by WPCNR

Next, they wait: Dunphy said that being that it was an election matter a decision could come by the weekend, “being that it was an election matter.”

Dunphy said, arguing before the Court of Appeals is an experience: The court of Appeals is very ornate, wood-panelled, old courtroom that is still in style. It’s a majestic courtroom where lawyers like to go to argue, because you have a sense of being in a place where hard decisions are made, and strong legal decisions are made. Strong legal precedents have always come out of the Court of Appeals.”

Dunphy “Not surprised” Court agreed to hear the case. Delgado-Hockley has statewide impact.

WPCNR asked Dunphy if he was surprised the Court of Appeals agreed to hear the Delgado/Hockley matter. He said, “Not at all, because the case, in my opinion, has statewide application, not just for the city of White Plains but for the entire state of New York.

“One of the questions the court has to answer is whether you can do equity like Judge Nicolai did, and the appellate division sustained in an election matter or whether you just have to follow the dictates in the election law as laid out in the books. That’s one of the questions. One of the subsidiary questions the court has to answer, as Mr. Bradley has been saying, is whether the proper procedures have been followed, and thirdly, whether the remedy provided by Judge Nicolai, and modified by the Appellate Division is the correct remedy.”

Inside the chamber:

Dunphy said that the Judge selecting the Delgado-Hockley “Case Card” will report on the case: “He will have to report on the case and the judges will vote. And then they will structure the writings accordingly whether it’s a dissent or not. He makes a report and they all vote on it.”

“They could do a lot of things here. They could reverse it and go with Nicolai. Or they could affirm the Appellate Division, or make their own findings of law. They could say…the election as on November 5 are the results and there should be no other remedy.”

Delgado confident “going in.”

Larry Delgado, appearing at the Council of Neighborhood Associations, said he was “so glad that one way or another, this will be decided.” He said he felt confident, but that you could not tell how the Court of Appeals was going to go. Mr. Delgado and his wife were going up to Albany Thursday morning for the “final arguments.”

Delgado attorney points out Court of Appeals threw out two procedural protests in 2001

John Ciampoli, one of the Delgado attorneys, interviewed by WPCNR last weekend, said the two cases involving election law that the Court of Appeals agreed to hear last year ironically involved procedural matters similar to the arguments in the Delgado-Hockley matter. He said the Court of Appeals upheld lower court decisions overruling procedural requirements in favor of voter franchise.

DELGADO’S ATTORNEY: JOHN CIAMPOLI cites a Court of Appeals trend in recent years to uphold the right to vote over strict adherance to procedures.
Photo by WPCNR

Time stamp case, remarkable parallel.

In one case, Ciampoli said, there was a certificate that had to be filed to put someone on a ballot. A clerk at the Board of Elections in Nassau County did not put a time stamp on a document, and there was a movement to prevent the candidate from going on the ballot because the certificate was not time-stamped. The Court of Appeals ruled “we’re not going to keep someone off of a ballot and deny the voters a choice because someone forgot to put a time stamp on it.”

“And so, if you take that being analogus to this case (the failure to purchase a new index number,” Ciampoli said, “ the worst you can say is, the county clerk forgot to keep a copy of the whole thing and only kept a copy of one page before releasing it to the judge, because it was given to Mr. Delgado to walk to the judge.

In order for Bradley’s argument to have any merit, he is going to have to show a signed order from Judge Perrone or Judge Colabella saying ‘this case (the impoundment order) is closed.’He (Bradley) hasn’t shown me that, he hasn’t shown the courts that. So he loses. What he did manage to do is convince one appellate division judge that his letter that said no further proceedings was necessary concluded the case. When did we give Adam Bradley a black robe with the power to close the case?”

Make-up of Court not in question, according to Delgado attorney

Asked if the political affiliation of the court might make a difference (4 Governor Cuomo appointees, 3 Governor Pataki appointees), Ciampoli said, no.

“I can tell you this much about the Court of Appeals,” Ciampoli said, “I have been before them time and time again, and I haven’t always walked away happy. But I definitely have never walked away from the Court of Appeals without believing that they heard my arguments, gave me a fair hearing and that they understood what was before them, and did what they thought was right.

I know the judges, I’ve been before them for years, and I don’t think a party label makes any difference in the world to them. This is a good bench. Several of the judges have a lot of experience on election law before they got to the bench…I’m comfortable with these guys.”

JUDGES OF THE PAST LOOK DOWN ON HISTORY IN THE MAKING: Lining the courtroom where Adam Bradley and John Ciampoli are arguing their case today are portraits of former Chief Judges and Associate Judges of the Court of Appeals. Pictured here, top, are Benjamin N. Cardozo, the only Chief Judge of the New York Court of Appeals to be nominated to the Supreme Court of the United States, and below, Ward Hunt, the first judge of the Court of Appeals who served from 1873 to 1882. Judge Cardozo was nominated to the Supreme Court in 1932.
Photos from the Court of Appeals Website

As arguments are heard this afternoon, the justices of the past who stare in dignity from the walls of the courtroom will be looking down on a case that will be cited for centuries to come in New York Election Law. You cannot help wandering how they would rule this case.

Mr. Delgado ruefully acknowledged last night that “Delgado vs. Sunderland” will be the part of many an election lawyers’ briefs in the future.

The case will decide whether or not procedure will determine the outcome of an election. Whether disenfranchised voters still need to be heard if a procedural step is missed. Whether a voting machine can be ordered opened as a matter of election law. A host of matters will be adjudicated by the today’s Justices for elections of tomorrow across the state.

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From Michelle Schoenfeld of the City School District: White Plains High School students in the Authentic Science Research
Program competed at the Westchester-Rockland Junior Science and Humanities Symposium Competition at the IBM Research Center in Somers last Saturday, and three earned places in the State competition in April.

Representing the school will be: Kirsten Abraham, who presented her research on “The Psychological Comparison of Stress Levels and Dream Intensity in Adolescent Subjects;” Lara Indrasena, with “The Effect of Salt on the Oviposition and Development of Aedes Japonicus and Aedes Triseriatus;” and Andrew Silverman, with his paper on “Factoring Degree Sequences.”

This represents the fourth consecutive year that students will
compete at the State level.

Timothy Selg advises the students and teaches the ASR Program.

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Retirements Drop Budget Increase to 8.1%.Yanofsky Case for Middle School $$$

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Milkman’s Matinee News, Filed 2/13/02, 2:30 AM EST: The second meeting of the White Plains Annual Budget Committee Tuesday evening revealed the Superintendent’s Cabinet has cut $911,979 out of the proposed School Budget in a week thanks to retirements and BOCES cuts. A case was made for accelerating remedial efforts in the Middle School.
The year to year proposed 2002-03 increase stands at a plus 8.1%, down from 8.8% last week. The Superintendent of Schools made a case for a strong Middle School effort to address underachievement on the assessment tests before they reach high school.

ABC IN ACTION: Dr. Saul Yanofsky, Superintendent of Schools, passionately uses revealing overheads and realities of test scores to make the case for more money to bring Middle School’s underachievers up to speed by high school.
Photo by WPCNR

Good news first.

According to Richard Lasselle, Assistant Superintendent for Business, the fifteen teacher retirements and reduced fringe benefits announced Monday evening lower projected salary outlays by $526,000.

He said BOCES cuts from retaining children within the district next year by instituting the “Passages” program in the elementary schools will save another $231,000, lowering the overall tentative budget-in-process to $128,272,248.

LASSELLE DELIVERS THE GOOD NEWS: Richard Lasselle, Assistant Superintendent for Business making figures crystal clear to the Annual Budget Committee meeting Tuesday night.
Photo by WPCNR

Yanofsky: Increase Middle School Staff to Upgrade Bottom 7%

The 30-member Annual Budget Committee watched soberly as the Superintendent detailed the costs of addressing the new state standards at the middle school level.

Yanofsky said that $845,000 was being allocated to address the consistently lower scoring students in the sixth and seventh grades.

The money is being targeted as follows: To provide 1 new ELA teacher($70,000), 1 new math teacher ($70,000), 3 Special Support Teachers ($210,000) and 2 and ½ Remedial Teachers at the K through 5 levels ($175,000) at the Middle School level to bring up the achievement levels of what he called the “bottom 7%” who are consistently scoring low on the eighth grade assessments.

A total of $129,000 is being earmarked for new textbooks, and $128,000 for Summer School remedial programs. The $845,000 represents 0.73% of the new budget increase.

Another $205,000 is being assigned to hire 3 technical support teachers and to facilitate teachers’ ability to understand and work with students needing help in learning computers in the schools. This represent another 0.7% increase in the budget.

“You see where the money is,” Yanofsky said as he presented the case for the Middle School remediation effort. “The next big challenge is in what it costs to respond to new state mandates.”

Three years of 4th and 8th grade test score comparisons drive strong Middle School Effort.

The Superintendent put up “overheads” of the Achievement Test Scores that figure in the district assigning priority to more academic aid in the Middle School. Though test scores have improved steadily in three years at the White Plains elementary level based on the 4th grade Math and English Language Arts assessments, performance faltered in the Middle School 8th grade achievement tests, Yanofsky’s figures showed.

In the elementary school 4th grade Math tests, which are graded on a 1,2,3,4 basis the last three years, (above “3” is acceptable), the five White Plains elementary schools Math Tests had 74% passing the Acceptable levels(above 3) in 2001, up from 69% in 2000, and 71% in 1999.

In 2001, 26% scored below acceptable, 31% unacceptable in 2000, and 29% in 1999. However, in all three years of the fourth grades tests the level of students scoring at the 1 level pegged consistently at 7% (8% at 1 in 1999, 6% at 1 in 2000, and 7% at the 1 level in 2001.

Looking at the 4th grade English Language Arts Tests, a similar pattern develops: In 2001, 66% scored 3 or better; Up fropm 63% in 2000, and 53% in 1999. The percentage of students in White Plains 4th grades not scoring 3 or better, were 34%, 37% and 47% respectively.

”You can predict test scores by the prices of cars in the parking lot.”

Yanofsky said, “With a heavy dose of remediation, (of incoming students), we have made a tremendous difference. Lower and middle class kids come into the district with issues, and the challenge to help them catch up is staggering. We caanot make up for the time from 2, 3, and 4 years old when we (the school district) didn’t have them.”

Yanofsky said it was not ethnicity that prevented the children from keeping pace, but poverty. “You see the same results in West Virginia which is predominately white. Performance (by income levels) is replicated place after place throughout the nation. One prominent critic of tests said you can predict test scores by the prices of cars in the parking lot (of the school).”

83% of students qualifying for “Free or Reduced Lunch” are English Language Learners.

The combination of poverty combined with a non-English speaking background is a problem the district is moving to address across the grades, and particularly the Middle School.

The only measurement of income levels that the district has, Yanofsky said, is the qualifying standard for free or reduced lunch. Based on the numbers of students qualifying for free or reduced lunch, the district has determined that the following percentages of ethnic groups are on low or moderate incomes: Asian, 19%; Black,65%;Hispanic,79%; White, 9%. A total of 83% of the all those qualifying for free or reduced lunch are English Language Learners, and 35% are English-speaking.

Yanofsky said, “We need to keep talking about this, (the poverty-non-English-speaking population).”

Middle School 8th Grade Tests a Concern.

The 8th grade assessment tests in the same areas have lead the district to concentrate on the lower performing students in Middle School.

In three years of Middle School Assessments in Math and English Language Arts, the progress seen in the elementary tests has not been as steady. In Spring, 2001, 48% scored at passing levels (above 3) in 2001, with 52% below 3, (below level), and of those scoring below passing, 20% performed at the “1” level. In 2000 the figures were at 53% below 3, 47% performing acceptably, and 22% performing at the “1” level. The first year of the achievements, 1999, the levels were 59% below passing,41% above, and 27% at the “1” level.

Yanofsky related the disappointing math scores to poor reading skills, because the eighth grade math assessment demands the ability to read and comprehend problems, as well as computation skills.

A drop in 8th Grade ELA results.

In the 8th grade ELA tests, remediation results showed strong improvements in 2000. However, in 2001, 49% scored above the Acceptable Level (in the 3,4 range), with 51% scoring below, and 7% at the “1” level. This was down from the year before, with 56% in the 3,4 categories and 44% in the “below standard” 1,2 levels with 9% at the “1” level in 2000. In the benchmark year of 1999, 55% scored at acceptable levels (above 3), with 45% below the state standard.

Remedial strategies at High School bring students back.

Yanofsky put it to the audience bluntly, “We know that in White Plains, the Middle School curriculum needs a tremendous amount of help. But, we know the results from high school jump way up, from the 50% level to the 80’s and 90’s. What we have to do is focus on quality of instruction at middle school.”

Yanofsky said that the high school efforts at remediation had been responsible for bring student performance up, and indicated this experience would now be applied in the Middle School. The new personnel requested is an effort to implement this approach, “We seem to be more successful in remediation programs in the high school. We have reason to believe the level of success will continue.”

The superintendent said, “Retention (in Middle School) is not a good solution. Moving up is not a good idea. A self-contained program for students, using a ½ time person (working with the student) is what we suggest.”

He said the Middle School is working on a model of this remedial program.

Yanofsky presents data refuting that bright students’ ability to achieve is compromised.

Two realtors among the Budget Committee expressed concern that potential residents were leary of coming to White Plains because they felt their children who they felt were good students would not be challenged.

The Superintendent took strong issue with that statement, saying, “We have the data to refute that.”
Yanofsky said that in the last three years, the district has awarded 38%, 44% and 45% regents diplomas at the high school, getting the district ready for the time within the next 2 to 3 years when students have to pass 5 Regents examinations to graduate.

He said it was unfair for the media, most notably “Spotlight” magazine to present “aggregate test scores” to rank districts. He also said the County Board of School Superintendents was adapting a policy not to provide data to media insisting on ranking school districts.

White Plains SAT scores for top 20% of students compare with all communities in the county.

A Yanofsky overhead showed that for the top 10% of White Plains students, they averaged 713 on the Verbal and 727 on the Math. The Top 20%, 675 and 693, respectively. These figures, Yanofsky said “compete with all communities in the county.”

The performance of White Plains students on Advanced Placement Tests is outstanding, Yanofsky, said, saying that 69 to 75% of the 240 students taking advanced placement tests succeeded in qualifying for advanced placement in 3 or more subjects. Yanofsky said there is “absolutely no evidence” that the brightest students are held back in performance in White Plains.

Transportation Increase Due to White Plains Bus Company no longer able to afford to serve White Plains.

Richard Lasselle shed light on the transportation increase calculated at about 28% was due to the White Plains Bus Company saying it could not afford to keep its new contract at the Consumer Price Index level, as had their previous contracts been structured. Lasselle said the City School District contract had for a long time been $5,000 to $7,000 less per bus than neighboring districts, and that White Plains Bus had refused to renew their contract.

Debt Service to be retired by 2014.

Lasselle presented an overhead noting that the School District debt was now at $33 million, including the $28 million debt for the high school expansion. It requires $2.5MM in principle and 1.8MM in interest payments in 2002-03. He said they were non-callable bonds, and that the district had looked at restructuring their debt four years ago, and found “no advantage to it.”

City calculates tax assessments to be the same as last year.

The final piece of news delivered by Mr. Lasselle was that the City of White Plains is reported to have told the district that assessments are at the same level as last year. Lasselle added that at the next Annual Budget Committee meeting, he and Dr. Yanofsky said they would be “taking a look” at how the PILOTS of new city projects would affect the budget in the next few years.

Dr. Yanofsky, on cue, rose to ask the committee members to deliver their thoughts on what the community could accept in terms of a tax increase.

Yanofsky showed an overhead of tax chart indicating that at the present level of 8.1%, a tax rate adjustment of 10.20% could be expected. If the budget was lowered to 7.5%, the tax rate would drop to 9.59%, and if cuts were made to 7% this would reduce the Tax Rate to 8.9%. He asked the Committee members for their opinions on whether the public could live with a 10.8% tax rate. Two realtors in the audience could not comment on exactly what that would mean in terms of actual dollars to the average home owner.

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Ochser, Architect of Faculty, Renews Contract.

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11 O’Clock All News Final, Filed 2/11/02 11:30 PM EST Updated 2/12/02 11:20 PM: The Board of Education voted to renew Assistant Superintendent for Human Resources, Dr. Linda Ochser, for three years through September, 2005, Monday evening, retaining the architect of the School District faculty review system during the Saul Yanofsky years.

Dr. Linda Ochser was praised by Dr. Saul Yanofsky Monday evening at the regular February meeting of the Board of Education, as the Board renewed her contract. Yanofsky said she was the senior member of the Superintendent’s Cabinet having served since 1989.

The outgoing Superintendent said that, in her dozen years at the faculty helm, Dr. Ochser had designed the system of committees, involving “stakeholders” of parents, teachers, labor, community and school-based groups that deal with personnel and policy issues in the schools, “bringing definite perspectives.” The Superintendent credited Ochser for having createdd “most thorough processes” for reviewing teachers for tenure, and unique evaluation forms and procedures for that review.

FACULTY “GENERAL MANAGER” INKED FOR ANOTHER THREE YEARS: Dr. Linda Ochser, Assistant Superintendent for Human Resources will be with the City School District for another three years. She is shown in the front row Monday night at Education House, as Dr. Yanofsky announced her retention. Dr. Ochser’s familiarity with District personnel stabilizes the district as it faces “a changing of the guard” in faculty ranks and at the top. On Monday, fifteen teachers representing 500 years of experience were announced as retiring. Dr. Joseph Casbarro, Assistant Superintendent for Pupil Services is also pictured.

Photo by WPCNR

While the retention of Dr. Ochser was good news, the Board accepted the retirement of Dr. Barbara Gruen, Director of Guidance Services for the District effective next October 2, 2002, and the resignation of Karen Kettlewell, Food Service Director effective March 1.

Gruen praised as “Total Guidance Professional.

Dr. Barbara Gruen, Director of Guidance Services until next October, was lauded for her fifteen years as head of the guidance program, which has seen the number of counselors districtwide go from 12 to 18 counselors.

Yanofsky praised her for the “painstaking” way she selectes counselors, her knowledge of colleges, and her ability to work with students and their families, “appropriately and sensitively, linking kids to resources within the community.” He said Dr. Gruen was “a leader within her profession.”

DIRECTOR OF GUIDANCE SERVICES,Dr. Barbara Gruen, listens to Dr. Yanofsky and Dr. Casbarro recognize her contributions to the school district. Gruen will stay in her position through Oct.1, 2002.
Photo by WPCNR

Dr. Joseph Casbarro, Assistant Superintent for Pupil Services, said Ms. Gruen had three charactertistics which distinguished her “body of work,” her compassion, her advocacy, and her professionalism. He said that in the twenty years he’d known her, “she exemplified what it means to be a professional.”

Food Service Director leaves for Directorship of National Food Service Organization

Dr. Yanofsky said Ms. Kettlewell had turned around the District Food Service program since 1993, the year she joined the District. Yanofsky said she turned a program that was running a deficit of $150,000 a year, to a program that now has a $725,000 surplus (built up from 1997).

“Karen has proved you can feed children good food and make money largely by marketing food services to agencies, community groups, camps and nursery schools in the community.”

Richard Lasselle, speaking Tuesday evening, clarified his statement of Monday night, saying $425,000 of this surplus was going to be used to pay for costs of the new food service facility at White Plains High School including kitchen equipment and cafeteria tables.

The Rochelle Group, Ltd., of Congers, New York has been hired to manage the Food Service operation, taking over for Ms. Kettlewell on March 1. The group found Ms. Kettlewell for the district nine years ago, and will conduct a search for viable candidates for the position, Dr. Yanofsky said.

The group will supply an interim director who will intern a week with Ms. Kettlewell before taking over her duties when she leaves. Rochelle Group will be hired at a cost not to exceed $9,100 a month through June 30 of this year. Part of this cost will be paid for by the funds allotted for Ms. Kettlewell’s salary. (The Rochelle Group has a website on White Plains Links. Simply Click on White Plains Links and go to “Schools” to get to their site.)

Superintendent Yanofsky said Ms. Kettlewell tightened up management and had designed a system that will continue in White Plains for “years to come.” He said she also was leaving “a wonderful legacy,” in deigning the new food service facility at the White Plains High School. Dorothy Schere, Board Member, recalled when Ms. Kettewell was hired, “I honestly couldn’t believe she could make money (with the food service).”

District resolves to lobby Albany to repeal Wicks Law.

Richard Lasselle, Assistant Superintendent for Business, explained a resolution the Board of Education passed advocating Albany lawmakers allow School Districts across the state to be able to choose one contractor for construction projects over $50,000.

Currently, the law on the books dating back to 1912, requires districts outside New York City to hire four different contractors: a general contractor, a heating a ventilating system contractor, electrical contractor, and a plumbing contractor.

School superintendents across the state have determined that this arrangement doubles the time it takes to complete major school projects and adds to the expense of the project. The superintendents urge citizens to write Albany by March 1 suggesting repeal of the Wicks Law.

Lasselle said there are often disputes among contractors that prolong the jobs. It happened in White Plains in 2001, when the district lost 17 working days due to wildcat work stoppages.

The two-page resolution asks Albany lawmakers to repeal the Wicks Law, allowing a one-contractor job. Lasselle expressed optimism that this year Albany lawmakers seem receptive to some change.

Fifteen Teachers retire

In a news item that shows the fortunate advantage of the Board of Education retaining Dr. Ochser, the Board of Education announced the retirement of the fifteen teachers. Yanofsky noted these men and women represented 500 years of teaching experience within the district:

Brenda Davis, School Social Worker, George Washington School; Robert DePrato, Foreign Language Teacher, High School; Susan Hirsch, Elementary Education Teacher, Church Street School; Michael Levine, Math, High School; Henry Miller, Physical Education Teacher, Mamaroneck Avenue School; Jeffrey Miller, Physical Education Teacher, MS-Highlands and High School; Beth Post, Learning Facilitator, Post Road School; Patricia Rita-Woodman, Elementary Education Teacher;Nancy Rodriguez, ESOL Teacher, High School; Regina Setikas, Special Education Teacher, MS-Highlands; Thomas Stevens, Elementary Education Teacher, MS-Highlands; Carolyn Tokson, Learning Facilitator, High School; and Steven Toovell, Art Teacher, Mamaroneck Avenue School.

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Free Agent Deadline:Little League Late Registration CLOSES Feb 23.

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From White Plains Little League: Children 5 to 15 wanting to play Little League Baseball must return their personal applications (which you should have received by now), to the Little League, postmarked no later than February 23 in order to play this Spring. Children not knowing whether they will make a middle school team or not, should sign up. Money will be refunded if you choose not to play.

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White Plains News Links Continue to be Added Daily

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White Plains New Links: Aficianados of White Plains CitizeNetReporter should be advised that WPCNR is adding “News Links” daily. By clickingon White Plains Links in the upper left column of this page, you will be taken to our roster of websites that can provide more information for you on the stories we cover. Today for example, we have added WestchesterARC. Last week we added a number of companies involved in negotiations with Louis Cappelli. Use the White Plains Links!

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