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The Scoop is a new regular column by The CitzeNetReporter, John Bailey. It is not reporting, it is not commentary, it is just the way it is. It’s December 27. Do you know who the sixth Councilperson is going to be? We do not. We do not know when or how the third council seat will be decided. Here’s a look into the future, though this column almost guarantees a decision tomorrow:
As of Thursday, December 27, April Agostino, the Chief Clerk of the Appellate Court of the Second Department in Brooklyn, USA, informs WPCNR there is nothing to report. Appellate Court Judges Krausman, Friedmann, Feuerstein and Schmidt have not ruled on the Adam Bradley, Glen Hockley appeal of Judge Francis Nicolai’s December decision for a new election in District 18.It raises some very interesting questions.
Delgado Attorney Talks
First, we asked Jeffrey Binder of White Plains, Larry Delgado’s attorney, how the four judges received the case. It has been two weeks since the Brooklyn 4 issued a permanent stay of Judge Nicolai’s decision, pending their review of the Hockley appeal.
Binder said the judges followed the track of the Delgado argument for a new election on Friday, December 14, very well. In Binder’s opinion, observing the arguments by David Lewis for Delgado, and Adam Bradley for Hockley, (each had 30 minutes to present to the panel of magistrates) “The judges were very prepared. They knew the briefs. They are (the judges) very much wedded to a notion that a remedy can be conducted. They have no interest in rushing things.”
Binder said Lewis, an attorney experienced in arguing before the Appellate Court, handled the judges “curve balls” very well and handled their questions.
Two weeks and counting.
Well it has been two weeks and still no decision from the judges. Ostensibly, Adam Bradley’s argument for a permanent stay pending appeal, relied on the 30 days notice the electorate is supposed to receive before a new election. Judge Nicolai’s decision called his special canvas of District 18 (previously scheduled for December 18, before the Appellate Judges stayed it), a “continuation” of the election. Anyway, the Appellate Judges did not agree and issued the permanent stay. At the time, Binder said he, John Ciampoli, and Mr. Lewis had expected a decision to be imminent. However, the judges are apparently taking their time because when you look at the case, there are a lot of very significant, precedent-setting issues involved in election law that the Appellate Judges will be ruling upon.
Theory of How the Judges are Reviewing
There was speculation in some quarters that the presiding judge usually writes an opinion and circulates it among the other three judges. In addition, if there is disagreement, they get together and resolve it. However, there is no definite operational procedure as to how the Appellate Judges are review an appeal.
What we think is the Appellate Judges see the implications of the Adam Bradley-Glen Hockley argument that the Election Law does not allow for inspection of a voting machine, and that the election results of November 6 for District 18 should stand.
Should the Judges uphold the Bradley-Hockley appeal, Mr. Hockley would be the winner.
What a finding for Hockley Seems to Say
However, a closer look at what the judges would be saying by declaring that the District 18 results of November 6 should stand, the Appellate Judges, in effect would be saying that if there were a voting irregularity on election night that is just too bad. Election results are election results. This would mean, if not overturned on appeal, that in future elections throughout the state, irregularities would by virtue of this kind of decision, be allowed to stand. A decision like that could support future efforts such as the current appeal, to block irregularities from being investigated.
Delgado action based on Patchogue 1992 jammed voting machine case
The heart of the Delgado argument before the Appellate Court December 14 was based on a 1992 case in the Town of Patchogue, New York, in the matter of Felice vs. Berger & Ihne where Vincent Felice was hooked up in a race for Trustee of the Village of Patchogue, where a voting machine also jammed. The circumstances were similar to November 6, 2001, at George Washington School on the Larry Delgado line.
According to the public record, and WPCNR goes to the case brief here:
Felice received a total of 832 votes, while the top three candidates for the public office of Trustee received 914,898, and 886 votes respectively. Felice alleged that a voting machine in the 20th Election District had “malfunctioned and failed to tabulate votes cast for him on the Democratic Line. Felice also submitted affidavits of 91 voters who stated that they had pulled the lever on the machine in question for Felice on the Democratic line. The machine, which was subsequently tested by the Suffolk County Board of Elections and found to be defective, had record eight votes for Felice, only one of which was cast on the Democratic line. Significantly, the record indicates that the other Democratic candidates each received in excess of 135 votes on the same voting machine and that Felice led all candidates in the aggregate vote total from the other eight election districts.
An eerie sense of deja vu.
This chain of events is virtually identical to the predicament Larry Delgado found himself in on the early morning of Wednesday, November 7. On the Republican and Conservative lines, fellow Republicans Bob Tuck and Mike Amodio received 168 votes and 135 votes respectively, while Mr. Delgado received only 47. Right away Republicans felt there was some error in the voting machine, since Mr. Delgado had been running ahead of Tuck and Amodio in every other city district. This is remarkably similar to the Felice case.
In the Felice matter, Appellate Court Called for a New Election between just the two candidates
What the Delgado attorney team argued before the court was that a similar remedy might be considered to that of the Felice Ihne matter. In Felice vs. Ihne, the Appellate Court ruled, and again we go to the case law:
Since the appellant (Mr. Ihne), has not been certified by the Village Clerk and has not assumed his elected office, a quo warranto action is presently unavailable. We have observed, however, that a court may order a new election in a plenary action for a declaratory judgment, where, as here, the office, in question, has not yet been filed.
The Appellate Court remedy in 1992:
Accordingly, in light of the compelling evidence establishing a faulty vote tally in the 20th Election District (in Patchogue), and its effect upon the outcome of the election results, the election of Ihne must be declared invalid and a new election held between Felice and Ihne.
Form of election in question
The judges if they do not grant the Bradley-Hockley appeal, (effectively saying election results on election night count no matter what), have several options, and probably a few I have not been able to think of yet.
A. Declare a citywide election between Mr. Hockley and Mr. Delgado.
B. Declare Delgado the winner, throwing out District 18 altogether (in which case Delgado outpolls Hockley 6,046 to 5,995.
C. Declare a citywide election between Hockley and Delgado and all other council candidates, perhaps throwing out Nicolai’s certification of Rita Malmud and Tom Roach results, though that is highly unlikely. (Remember Judge Nicolai certified the Roach-Malmud totals, declaring them winners of the first two Council Seats.)
D. Uphold Judge Francis Nicolai’s Supreme Court decision, holding a “Continuation of the Election,” between Hockley, Delgado, Tuck, Amodio, Malmud, and Roach, with just 366 voters in District 18 allowed to vote. Alternatively, the Appellate Judges could adjust this District 18 only decision, making it between Delgado and Hockley only, throwing it open to all voters, perhaps. There may be other options.
E. Declare Hockley the winner, based on results of Election Night.
Common Council majority said to be considering appointing an interim councilperson.
It should be remembered that part of the Appellate Court granting of a permanent stay of the District 18 “continuation” ordered by Judge Nicolai, was that neither Hockley nor Delgado could be appointed or take an oath of office in the meantime.
However, WPCNR has learned that the Democratic council members are considering appointing an interim councilperson, though it has not been ascertained whether they have informed the Mayor whom they want to appoint.
Edward Dunphy, city Corporation Council, told WPCNR that “in the event of a vacancy” on the Common Council, the majority of the council is allowed to appoint someone to serve. However, there has never been a situation where an election has failed to produce a clear-cut winner as it did November 6, thanks to the voting machine jam in District 18.
In the past, John Martin was appointed to the Common Council to fill a vacancy, but this was in the middle of a term.
2002 is different. There is no precedent where the council appointed a councilperson at the beginning of a term due to an inconclusive election.
Delgado camp would take legal action to block an interim appointment.
Jeffrey Binder, Delgado attorney, said that it was their intent to file a quowarranto proceeding to “enjoin” the council from appointing a sixth councilperson until the Delgado-Hockley runoff election (if that option is ordered by the Appellate Court), was decided.
Who would the Democratic majority appoint to the vacant seat? Pauline Oliva let slip during the Common Council meeting of December 20 that she would be willing to vote for the “MacMansion” Zoning Ordinance in January if she were on the council. It appears that Ms. Oliva’s retirement might be very short. Perhaps she’s already missing the power rush of being “on the council.”
What would this mean?
I was having lunch after the regular taping of White Plains Week recently with some reporters, ex-reporters, and legal buffs who love militant legal speculation. We came up with many interesting sidelights to the interim councilperson issue, as well as the prospect of what having a “short council” does to the dynamics of city government and city decisions.
A. One lawyer pal I know, said, “Well does Larry Delgado “holdover?” It’s an interesting question, it’s never come up before.
B. Which council seat is vacant? Is it Pauline Oliva’s seat? Is it Larry Delgado’s Seat? Is it Rita Malmud’s Seat? Our sources tell us, it is Ms. Oliva’s seat. So if she’s reappointed, couldn’t Mr. Delgado be just as likely appointed rather than Ms. Oliva?
C. Does the Common Council have the right to appoint in this situation? It’s never come up before. A Delgado suit could argue the mechanism for vacancies does not apply to seats left vacant by a suspended, incomplete election – and hence Delgado could holdover, or the Mayor might appoint. Law Clerks start your Nexis-Lexus searches!
D. How long is an interim appointment? How long would the appointee serve?
E. If an interim appointee served, would Council decisions during that tenure be legally binding? Might not parties argue that the council was not a legal body and hence any public hearings held were not valid? We think this is a real issue. Consider what the council is considering in January: New York Presbyterian Hospital. The MacMansion zoning. Just two slightly controversial issues.
F. What procedure is in place to remove an appointee once that appointee is on the council? What is the due process? Once again, you law clerks, go to your briefs!
G. Does Council have authority to authorize spending, approve appointments, if it has an unelected member? Do such matters have to wait until a duly elected council is on the scene?
Councilperson of the Week
I am sure you can think of other questions, too. In fact, could we have rotating council members from the past be “designated councilperson” until the Delgado, Hockley thing is decided? How about appointing Mary Ann Keenan for one month, Robert Ruger for February, and perhaps Saul Yanofsky for March. Or, to assure everyone gets a chance, we could try out potential councilpersons, appointing a new councilperson each week.
Some other candidates for “Councilperson of the Week,” are: Bill Waterman, Tom Sheehan, Marc Pollitzer, Allan Teck, Ron Shakeridge, Virginia Falzarano, Jim Benerofe (he’s always wanted to do this), Alex Philippidis, Rafael Vega, Maria Kantha, Ron Jackson, Candyce Corcoran, Scott Brosius, Andy Pettitte and I’m just getting started.
The Scoop by John Bailey will be appearing weekly in 2002.
