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WPCNR For The Record. July 12, 2004: To bring White Plains voters who may be joining us late on the Hockley Delgado issue, WPCNR herewith reprints The Attorney General’s Affirmation in Opposition to (Glen Hockley’s) Motion for Stay Pending Appeal that Hockley was granted last week by an Appellate Division judge in Brooklyn. The text offers a chronology of events in Mr. Hockley’s 27-month fight to keep his seat.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
PEOPLE OF THE STATE OF NEW YORK,
by ELIOT SPITZER, as Attorney General Appellate Division
of the State of New York, Docket No. 2004-5112
Plaintiff-Respondent,
-against- AFFIRMATION IN OPPOSITION
TO MOTION FOR STAY
LARRY DELGADO, PENDING APPEAL
Defendant-Respondent,
and GLENN S. HOCKLEY,
Defendant-Appellant.
DAVID LAWRENCE III, an attorney authorized to practice law before the Courts of the State of New York, states as follows under penalty of perjury:
1. I am an Assistant Solicitor General in the Office of Eliot Spitzer, Attorney General of the State of New York. The Attorney General brought this action on behalf of plaintiff-respondent the People of the State of New York (“the People”). I have been assigned to handle this appeal. Based upon my review of this Office’s file in this case, I am familiar with the matters set forth in this Affirmation.
2. This is an action in quo warranto, pursuant to Executive Law § 63-b, to determine the respective rights of defendant-appellant Glen S. Hockley (“Hockley”) and defendant-respondent Larry Delgado (“Delgado”) to the public office of Member of the Common Council of the City of White Plains. On June 11, 2004, Hockley filed a notice of appeal from Supreme Court’s short form order dated June 3, 2004 (Exhibit A hereto), which ruled that the Attorney General is entitled to summary judgment, and accordingly that Hockley should be removed from office and replaced by Delgado.
3. Hockley now seeks an order: (a) declaring that the automatic stay of CPLR 5519(a)(1) applies to stay all proceedings in this action; or in the alternative (b) granting a stay of all proceedings as an exercise of this Court’s discretion, pending determination of Hockley’s appeal. As demonstrated below, the automatic stay does not apply, because the order appealed from declared Hockley is not entitled to the status which he seeks to utilize to invoke the stay, that is, a Member of the Common Council of the City of White Plains; and Hockley’s filing of a notice of appeal does not negate that declaration. As also demonstrated below, a discretionary stay should likewise be denied because Hockley’s appeal lacks merit, and irreparable harm would result to the voters of the City of White Plains were Hockley, whom Supreme Court found was not elected as a member of the Common Council, to remain in that office.
FACTUAL AND PROCEDURAL BACKGROUND
The Election
4. A general election was held in the City of White Plains on November 6, 2001, to elect three Members of the Common Council. Pursuant to the White Plains City Charter, the council consists of a mayor and six councilmen, who are elected at large. The terms of office are staggered so that every other year, three Members are elected to four-year terms. In each election the top three vote-getters are elected.
5. Six candidates ran for the Common Council in the November 6, 2001 election. Among them were Delgado, running on the Republican and Conservative lines; and Hockley, running on the Democratic and Independence lines. According to election results compiled and reported by the Westchester County Board of Elections, the third and fourth-largest vote-getters were Hockley, with 6,140 votes; and Delgado, with 6,093 votes.
The Prior Action
6. Delgado filed suit pursuant to Election Law article 16 in the Supreme Court, Westchester County, challenging the election results. He alleged that the voting machine in the City of White Plains’ 18th election district jammed early on election day and failed to record scores of votes cast for him.
7. In that action, entitled Matter of Delgado v. Sunderland (Index No. 17851/01), Supreme Court (Nicolai, J.), found that the voting machine in the 18th election district had jammed after recording 39 votes for Delgado on Row A, Column 10 (“Position A10”) and that “the evidence was overwhelming that had not the voting machine in White Plains Election District 18 jammed, Petitioner Delgado would have received substantially more than 39 votes” in that district. Slip op. at 4. The Court thus declared that “the election of . . . Hockley can not be certified” (id. at 5), and ordered a “continued election” to be held solely in the 18th electoral district between Delgado and Hockley. Id. at 6-7.
8. On January 14, 2002, this Court modified that order by substituting a provision directing a new citywide election between Delgado and Hockley, and affirmed the order as modified. See Matter of Delgado v. Sunderland, 290 A.D.2d 440, 443 (2d Dep’t 2002).
9. On March 14, 2002, the Court of Appeals reversed, noting that “Supreme Court found, and it is not disputed, that a voting machine malfunctioned in the 18th Election District,” Matter of Delgado v. Sunderland, 97 N.Y.2d 420, 423 (2002). The Court held, however, that a declaratory judgment action was inappropriate. Instead, only a quo warranto action by the Attorney General, after Hockley took office, could be used to challenge the election results and contest title to the office. Id. at 424. Hockley was sworn in as Member of the Common Council on the day following the Court of Appeals’ decision, i.e., on March 15, 2002.
The Attorney General’s Investigation
10. Thereafter, at Delgado’s request, and pursuant to the power vested in the Attorney General by Executive Law § 63-b, the Attorney General commenced an investigation into the election for the third seat on the Common Council, in the course of which submissions were taken from Delgado and Hockley; interviews were conducted with Westchester County officials, including election commissioners, voting machine technicians and poll workers; and the 18th election district voting machine was examined.
11. The investigation found the following facts, memorialized in a report dated November 14, 2002 (Exhibit B hereto):
(a) The 18th election district used a single voting machine for the election of November 6, 2001.
(b) Delgado’s name appeared on Position A10 of the machine.
(c) At the close of the polls, 39 votes were recorded on Position A10.
(d) Westchester County election officials and Supreme Court thereafter determined that the machine’s counter for Position A10 was stuck between 39 and 40.
(e) The malfunction of the voting machine rendered it incapable of recording any votes on Position A10 after the 39th vote.
(f) One hundred and three registered Republican voters who voted in the election made affidavits stating that they had voted for Delgado on Position A10 of the 18th election district voting machine.
(g) Delgado therefore received at least 6,157 votes in the election, making him the third-highest vote-getter.
The Present Action
12. The Attorney General determined that a quo warranto action was appropriate and filed the present action on December 3, 2002.
13. By an opinion and order dated November 17, 2003, this Court denied an appeal by Hockley, and affirmed Supreme Court’s order denying his motion to dismiss this action based on the statute of limitations. See People v. Delgado, 1 A.D. 3d 72 (2d Dep’t 2003).
14. On January 6, 2004, the Attorney General filed a motion for summary judgment. Hockley opposed the motion, and filed a cross-motion for summary judgment.
15. By decision and judgment dated June 1, 2004, this Court denied Hockley’s CPLR article 78 application for a writ of mandamus to compel Justice Nicolai to reassign this action to another Justice of the Supreme Court, Westchester County. See Hockley v. Nicolai, A.D. 3d , 2004 N.Y. App. Div. LEXIS 7483 (2d Dep’t June 1, 2004).
The Order Under Review
16. In the short form order dated June 3, 2004, Supreme Court granted summary judgment to the People. The order was well grounded in four types of evidence: the Attorney General’s report; a report by two independent voting examiners; Supreme Court’s prior finding that the voting machine had malfunctioned, and the Court of Appeals’ recognition that the occurrence of such malfunction was undisputed; and affidavits of 103 voters.
17. First, Supreme Court noted that the Attorney General’s report found that at least 103 votes were cast for Delgado on Republican Line 10A in election district #18, but only 39 votes were recorded because the voting machine jammed after those votes; and that if these 64 votes (103 minus 39) were added to Delgado’s total, he would have 17 more total votes than Hockley (Exhibit A hereto at 2).
18. Second, the court further found it was:
undisputed that an examination of the machine pursuant to court order (Colabella, J., 11/15/01) was made on November 27, 2001, by two independent voting machine examiners in the presence of the requisite election officials and interested parties, including Delgado and Hockley, and the examiners concluded that the counter for Row 10A on the voting machine in the 18th District “was jammed at #039 and could not be moved back to zero.” The report of the examiners was accepted by both parties in the previous proceedings.
(Exhibit A at 3, citing, e.g., report of the examiners to the Westchester County Board of Elections).
19. Third, Supreme Court noted that the Court of Appeals had held in its decision that “Supreme Court found, and it is not disputed, that a voting machine malfunctioned in the 18th Election District.” (Exhibit A at 3, citing Matter of Delgado v. Sutherland, 97 N.Y. 2d at 423) (emphasis Supreme Court’s). See also Supreme Court’s November 29, 2001, findings of fact in Delgado v. Sutherland, exhibit C hereto; Excerpts of December 4, 2003 Transcript, Exhibit D hereto, at 32 (Justice Nicolai: “During the prior proceedings certain facts as pertained to the voting machine, not who voted or how many votes were cast, but certain facts as to the status of the voting machine were stipulated to by counsel before me”).
20. Fourth, the People had “submit[ted] 103 affidavits obtained by Delgado from registered voters in the 18th Election District who aver that they were registered and eligible to vote in the City of White Plains, and that they voted in the 18th Election District for Mr. Delgado on Row A in the November 6, 2001 election” (Exhibit A at 3). Additionally, the People had “submit[ted] an affidavit of [their] investigator, Ed Elie, who avers that he compared the names and addresses on the affidavits with the voting records, and concluded that the 103 affiants were registered Republicans who did in fact vote in the election in the 18th Election District” (Exhibit A at 4).
21. Based on all this evidence, Supreme Court concluded that the People had met their burden of demonstrating prima facie their entitlement to summary judgment, in that they had:
demonstrated that the voting machine recorded only 39 votes for Delgado on Row 10A, and that the machine malfunctioned in that it jammed at 39 votes and no further votes could be recorded for Delgado on that line. [The People have] also demonstrated, as set forth in the 103 voter affidavits, that 103 votes were cast for Delgado on Row 10A resulting in 64 additional votes for Delgado on Row 10A for a total of 6,157 votes, a margin of 17 votes over Hockley’s total of 6,140 votes.
(Exhibit A at 4).
22. In contrast, Supreme Court found that Hockley had not raised any genuine triable issues of fact based on “his counsel’s speculations and unsupported allegations as to alleged irregularities in obtaining of the affidavits by Delgado’s representatives,” nor based on his “conclusory and speculative assertions set forth in the affidavit of his expert, Mr. Redd, that the jamming of the counting mechanism could have occurred after voting hours” (id.)
23. Supreme Court also found Hockley’s “remaining contentions” to be “without merit.” In particular, “[the facts are not within the exclusive knowledge and control of the movant, as argued by defendant Hockley, and Hockley’s counsel has long ago been provided with the 103 affidavits relied upon by plaintiff” (id.)
24. Accordingly, Supreme Court: (a) granted the People’s motion for summary judgment; (b) denied, as moot, Hockley’s cross-motion for summary judgment; and (c) declared that the People were entitled to an order and judgment:
removing Glenn Hockley as member of the Common Council of the City of White Plains, declaring that Larry Delgado was and is entitled to the office of Member of the Common Council of the City of White Plains, and ordering that Larry Delgado be seated as a member of the Common Council of the City of White Plains immediately upon taking and filing his constitutional oath.
(Id.)
25. Supreme Court thus ordered that the People submit an order and judgment on notice, which shall provide that Hockley be removed from office 5 days after entry of that order and judgment (id.) The People served the notice and proposed order and judgment by mail on June 8, 2004, for settlement on June 18, 2004.
THE AUTOMATIC STAY DOES NOT APPLY
26. Hockley erroneously seeks to invoke the automatic stay of CPLR 5519(a)(1), which expressly applies only where the appellant is, inter alia, an “officer . . . of any political subdivision of the state.” However, in the order under review, Supreme Court found that Hockley is not entitled to hold the office of Member of the Common Council of the City of White Plains. Because the “order appealed from” is an “order of removal itself directed to the very status which is sought to be utilized to invoke the stay,” Hockley may not invoke the stay. Sarisohn v. Dennison, 53 Misc. 2d 1081, 1084 (Sup. Ct. Spec. Term Suffolk Co. 1967). The People’s “motion [for summary judgment] decided by an order does not become undecided and the declaratory provisions of a judgment are not undeclared” by Hockley’s filing of a notice of appeal. Matter of Pokoik v. Dep’t of Health Svcs. of Co. of Suffolk, 220 A.D. 2d 13, 15 (2d Dep’t 1996).
A DISCRETIONARY STAY SHOULD BE DENIED
27. The factors that courts consider in deciding whether to grant a discretionary stay pending appeal “include the apparent merit or lack of merit of the appeal, the harm that might result to the appellant if the stay is denied, and the potential prejudice to the respondent if the stay is granted.” Thomas R. Newman, New York Appellate Practice § 6.04 at 6-12 (2003). Here, these factors indicate that a stay should be denied.
Hockley’s Appeal Lacks Merit
28. Supreme Court properly determined that there was no genuine, triable issue of fact that the voting machine malfunction caused, at a minimum, 64 votes for Delgado not to be counted; when those votes are taken into account, Delgado received 17 more total votes than Hockley.
29. Supreme Court’s ruling was properly based on extensive evidence, including the affidavits of 103 voters[1]; the supporting affidavit of the Attorney General’s investigator (Exhibit F hereto); the report of two independent examiners, made pursuant to court order and in the presence of the requisite election officials, including Delgado and Hockley; and the factual findings made by the same Justice in the prior action; all of which demonstrate that the voting machine malfunctioned, and that when the results of that malfunction are corrected, Delgado is entitled to the disputed third Council seat.
30. Supreme Court also properly found that Hockley’s arguments to the contrary are without merit. First, Hockley argues that the People failed to offer any admissible evidence of the voting-machine malfunction (Affirmation of Thomas J. Abinanti in support of stay motion (“Abinanti Aff.”), at ¶ 48(a)). However, as demonstrated at paragraphs 16-20 supra, there was extensive such evidence.
31. In support of his first argument, Hockley cites to certain pages of a memorandum of law which he filed in Supreme Court and attaches to his affirmation. In that memorandum of law, he argued, inter alia, that: (a) the People “offered no evidence with respect to the alleged voting machine malfunction,” but instead have “chosen to rely on the collateral estoppel effect of findings made by the trial court in Delgado v. Sutherland” (Memorandum of Law at 5; emphasis Hockney’s); and (b) the Court of Appeals’ dismissal of that action rendered those findings “a legal nullity” (id. at 6-8).
32. As an initial matter, in entering summary judgment Justice Nicolai did not rely solely upon his findings of fact in the prior action. Instead, Supreme Court also expressly relied upon extensive other evidence, such as the affidavits of the 103 voters; the report of the Attorney General’s investigation; and the report of the independent examiners.
33. Furthermore and in any event, Hockley’s argument, that collateral estoppel does not apply regarding the findings of fact in the prior action, is irrelevant. That is because Supreme Court did not give collateral estoppel effect to those findings. Instead, Supreme Court simply and properly considered those findings as some of the evidence supporting entry of summary judgment. Since the same Justice had made the findings in the prior action, in which Hockley participated as a party, it would have been absurd for the Justice to fail to take into account his own prior findings. See, e.g., Matter of Terrance L., 276 A.D. 2d 699, 700 (2d Dep’t 2000) (“It was within the court’s power to take such notice of its own prior proceedings”); Matter of Dutchess Co. Dep’t of Soc. Svcs. v. Margaret F., 186 A.D. 2d 254, 255 (2d Dep’t 1992) (court took judicial notice of its previous finding of abuse); People v. Comfort, 278 A.D. 2d 872, 873 (4th Dep’t 2000) (“It is hornbook law that a court may take judicial notice of its own records”) (quoting Casson v. Casson, 107 A.D. 2d 342, 344 (1st Dep’t 1985)).
34. Contrary to Hockley’s contention, the Court of Appeals did not hold that Supreme Court lacked jurisdiction to make those findings in respect to the jammed voting machine (Memorandum of Law at 6). On the contrary, the Court of Appeals recognized that, under Election Law article 16, the statute under which Supreme Court was proceeding when it found the machine had jammed, “Supreme Court has jurisdiction” over allegations of certain serious irregularities in the conduct of a general election, including with respect to voting machines. Delgado v. Sutherland, 97 N.Y. 2d at 423, fn. Only the succeeding step taken by Supreme Court — converting the prior action into a declaratory judgment action and ordering a new election in the 18th election district — was held to have gone beyond the Court’s authority under the Election Law. Id. at 424.
35. Second, Hockley also errs by arguing that the certificate of election awarded to Hockley by the Westchester County Board of Elections is, by itself, sufficient evidence to defeat summary judgment and entitle him to a trial (Abinanti Aff. at ¶48(b); see also id. at ¶54). His memorandum of law provides no case authority holding that such a certificate suffices to defeat summary judgment. In fact, that memorandum quotes a case holding that “[i]n quo warranto the returns and certificates are deemed only prima facie evidence and the parties are permitted to go behind them and show what took place at the election, the number of votes cast and for whom,” People ex rel. Dailey v. Livingston, 79 N.Y. 2d 279, 286 (1879) (emphasis added), as occurred here. Indeed, Hockley’s memorandum of law concedes that the certificate of election is sufficient to defeat summary judgment only if “not negated by evidence offered by” the People (Memorandum of Law at 14), which the People’s evidence here does.
36. Third, Hockley erroneously argues that “a motion for summary judgment must be denied where, as here, the movant relies on alleged facts that are simply not within the knowledge of the non-moving party,” i.e., the affidavits of 103 voters here, so that Delgado “must be permitted to test the movant’s witnesses by cross-examination at trial” (Abinanti Aff., ¶48(c); see also id. at ¶¶55-56). His memorandum of law likewise relies upon the rule that “[i]f a key fact is within the exclusive knowledge of the moving party the motion for summary judgment will be denied . . . Denial of the motion will also result when an important fact is one the opposing party cannot know” (Memorandum of Law at 14-15,quoting Siegel, New York Practice (3d ed. 1999) § 281, at 443) (emphasis Hockley’s).
37. Supreme Court’s order easily and correctly disposed of this argument: “The facts are not within the exclusive knowledge and control of the movant, as argued by defendant Hockley, and Hockley’s counsel has long ago been provided with the 103 affidavits relied upon by plaintiff” (order at 4). Indeed, the case cited by Professor Siegel for denial of summary judgment where “an important fact is one the opposing party cannot know,” i.e., Franklin National Bank of Long Island v. De Giacomo, 20 A.D. 2d 797 (2d Dep’t 1964), involved a plaintiff claiming that it had no knowledge of a bonus paid to its assistant vice president, whereas “defendant is not in a position to know” whether the plaintiff had such knowledge. Id. By contrast here, both the People and Hockley were in an equal position to know the truth of the facts sworn to by the non-party affiants.
38. Fourth, Hockley erroneously argues that “the affidavit of the Board of Elections-qualified machine technician (M. Paul Redd) submitted by Hockley establishes the existence of a triable issue of fact as to whether such alleged malfunction occurred during voting hours on the day of the election in question” (Abinanti Aff., ¶48(d); see also id. at ¶54). Instead, Supreme Court properly rejected that expert’s “conclusory and speculative assertions . . . that the jamming of the counting mechanism could have occurred after voting hours” (order at 4). Redd’s affidavit (attached as exhibit G hereto) was indeed “conclusory,” as it was simply “[b]ased on my experience”; and was “speculative,” as it conjectured that “such a jamming of the counting mechanism could have occurred after voting hours,” either “while the Machine was being transported from the polling site to the warehouse,” or “at the very moment when the technicians ‘cleared’ the machine” (Redd affidavit, § 7; emphasis added).
39. Equally without merit is Hockley’s fifth argument, that the motion for summary judgment “is premature, as Hockley has not had an opportunity to conduct reasonable discovery” (Abinanti Aff., ¶48(e)). In particular, Hockley’s summary judgment papers argued that he should be allowed to depose the 103 voter-affiants. However, the Attorney General’s Office gave Hockley copies of the voters’ affidavits by letter of transmittal dated July 10, 2002, five months before this action was filed. Hockley could and should have interviewed or deposed them at that time, rather than waiting until December 2003 — over two years after the November 2001 election when memories have faded — to seek for the first time to do so. See CPLR § 3102(c) (permitting pre-action discovery for the preservation of testimony). Indeed, it is unrealistic to expect that the voters would have a detailed recollection of casting their votes over two years after the election. In contrast, the voters would undoubtedly have a better recollection at the time they executed the affidavits.<
