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.