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.