High Noon News, Filed 1-24-02, 3:00 PM: Judge Francis Nicolai, Administrative Judge of the Supreme Court, Ninth District, refused to set a new election date to resolve the Larry Delgado-Glen Hockley disputed election Thursday morning.
The Judge adjourned the contending contendates’ entourages until February 7, pending candidate Hockley’s decision as to whether or not to appeal the Appellate Court decision of January 14.
That decision directed a new citywide election be held to decide whether Mr. Hockley or Mr. Delgado will occupy the seventh seat on the Common Council. Mr. Hockley has 30 days dating from January 14 to appeal to the state’s highest court.
Judge Nicolai Heads ‘Em Off at the Pass
With the :usual suspects appearing before him as directed by the Appellate Court in Brooklyn January 14, Judge Francis Nicolai wasted no time in getting to the point.
He asked Glen Hockley attorney, Adam Bradley, if he had made a decision to appeal the Appellate Court decision to the New York State Court of Appeals, and whether or not Mr. Bradley needed more time before an election date was set to consider that decision.
Hockley and Bradley Appreciate the Offer.
Bradley said, “We would appreciate time to make that decision. We are fully entertaining, seriously considering, going forward (appealing).” Bradley told the Judge, “we would like some clarification to when the election would be set.”
Thoughtfully, Judge Nicolai said, “The reluctance I have to set an election day, is we have no idea when and where you will have a decision from the Court of Appeals. You have a certain amount of time (to prepare for an election), and I’m reluctant to put the Board of Elections through the time and expense, and it’s a little bit premature to do that.”
Ciampoli says HOLD ON
John Ciampoli, attorney representing Larry Delgado, told the judge that the Court of Appeals usually decides within 24 hours whether or not they will hear a case. He felt there was no problem in setting an election date, and that the judge “not wait until the completion of the appeal process to do this (set a date).”
Judge Nicolai unconvinced.
He said that a delay was not to mean the Westchester County Board of Elections should not continue their “preliminary planning,” and admonished them to “get your ducks in a row” to hold the new election, as directed.
The Judge stated that “since a motion for a leave to appeal is more likely than not likely, I’m going to adjourn this matter.”
There was agreement between the parties that January 14 was the day the Appellate Court handed down their 3-1 denial of Mr. Hockley’s original appeal of Judge Nicolai’s December decision. That original Nicolai decision called for a new election in District 18 only. Mr. Hockley appealed that ruling on technical errors and the scope of the remedy.
Next, Judge Nicolai set February 7, as next date when the parties would reassemble before him for a possible determination of the election date.
Hockley team has to ask permission for the Court of Appeals to take a look.
Under New York state law, when you have one judge dissenting in the Appellate Court, an appellant must file a motion for a leave of appeal, asking the Court of Appeals to hear the case.
Had Mr. Hockley and Mr. Bradley achieved a 2-2 split from the Brooklyn Appellate team (only one, Judge Kraussman dissented), they would have been automatically entitled to be heard in the Court of Appeals.
Delgado’s attorney thinks his odds are good. He told WPCNR there were fifty cases involving election law before the Court of Appeals last year, which had filed Motions for Leave to Appeal. the Court agreed to hear only 2, according to Ciampoli, Delgado’s attorney.
“Mr. Bradley is entitled to time to decide.”
When Mr. Ciampoli interjected to dissuade Judge Nicolai, the judge said, “ I am not going to set an election date today. Mr. Bradley is entitled to time to decide (whether to appeal).”
Nicolai observed that assuming the Court of Appeals decides quickly, the February 7 date should provide time to hold the election in late March.
Ciampoli Asks When Bradley Will Make the Call.
Bradley said, “If, in fact, we go forward, February 7 is sufficient at that point in time,”(for him to consider and file the Motion for Leave.) I think you will know (our decision) and our filing before February 7.”
Judge Nicolai noted that if the Court of Appeals was still in play on February 7 there was no need for a court appearance, and adjourned the proceeding.
Another Cross Appeal Likely.
John Ciampoli, one of Larry Delgado’s attorney, said that if Mr. Hockley and Mr. Bradley file a motion for leave with the Court of Appeals, he would again, most likely file a cross appeal to “preserve his client’s rights,” as he had filed a cross appeal when the Hockley/Bradley party appealed to the Appellate Division. That cross appeal was a routine procedural, he says, to protect his client’s options.
The actual cross appeal filed in the Appellate Court, Ciampoli said, was to leave the door for the Appellate Court to customize a remedy for the court-identified broken machine in District 18.
Otherwise, Ciampoli said, the Appellate Court would not have been able to disagree with Judge Nicolai’s remedy, let alone adjust it. They would have been forced to throw it out, according to Ciampoli, since they disagreed with it, thus allowing the election night results to stand, ending Mr. Delgado’s hopes, ending the appeal, and, of course, putting Glen Hockley on the council.
Ciampoli pointed out that the cross appeal was an automatic legal tool that allowed the Appellate Court to intervene and adjust the remedy rather than throw it out and automatically give the election to Mr. Hockley.
Bradley praises Judge Nicolai
Bradley told WPCNR, he was pleased at “the understanding of the trial judge that this case does have very complex legal issues. He seems to know that it is a case to go to the Court of Appeals. He (Nicolai) wants to let the highest court render appeal determinations. The trial judge should be complimented for his recognition.”
Delgado despondent, determined..
“Councilman-in-Waiting” Glen Hockley agreed with his attorney’s comments, and refused further comment. However, “Councilman-on-Leave” Larry Delgado was despondent and quietly angry as he stood at the tables in front of Judge Nicolai’s bench taking in what had just happened.
He wondered outloud to everyone in earshot: “how long will the people of White Plains have to wait to cast their vote.” He complained that his opponent was “stalling,” that they have sought to delay the process every step of the process. He said, “Everybody in this room (the court room) knows they (his opponent) sought to prevent the voting machine from being inspected.” then appealed Judge Nicolai’s decision calling for an election that would have ended the matter December 18, “this is just another stall.”
Impoundment never lifted.
Ciampoli, strolling out of the courtroom remarked that technically, if the Hockley contention that a new index number was needed to continue the impoundment action, then the impoundment order is still in effect, and the voting machines cannot technically be reset for a new election until Delgado’s original impoundment order is rescinded.
Delgado team on a mission.
Ciampoli mentioned he was very confident election case law was behind his client. He had a different take on the Kraussman decision than his adversary Adam Bradley.
Ciampoli noted that Judge Robert Kraussman’s dissenting opinion was writting in a way that was “judge code” a “heads up” to the Court of Appeals that they have to take a look at the problem of additional court filing fees in filing procedures (simple fund-raising mechanisms) as being used to deny voter rights.
Board of Elections will continue preparations.
Co-Chairperson of the Westchester County Board of Elections Reginald LaFayette said the Board of Elections would continue preparations, lining up election inspectors for an approximate date, and prepare the machines.