DRIVETIME EDITION, Filed 2/14/02, 3:00 PM EST: Adam Bradley and Jeffrey Binder, John Ciampoli, are presenting their arguments before the 7-judge Court of Appeals in Albany Thursday afternoon. It is the final act of the 2002 disputed White Plains election for Common Council between Glen Hockley and Larry Delgado. Mr. Delgado expects a decision early next week.
The action is taking place at the historic Court of Appeals building in Albany at 2 PM before the seven appointed justices of the Court of Appeals: Chief Judge Judith S. Kaye, and Associate Justices, Honorable George Bundy Smith, Honorable Howard A. Levine, Honorable Carmen B. Ciparick, Honorable Richard C. Wesley, Honorable Albert M. Rosenblatt, and Honorable Victoria A. Graffeo.
COURT OF APPEALS HALL, ALBANY: New York State’s highest court is the end of the line for the Delgado-Hockley disputed election. Arguments took place Thursday afternoon in a courtroom that strikes awe and admiration into New York State Lawyers. John Ciampoli, Larry Delgado’s attorney, tells us it is “his favorite courtroom,” and he speaks of the oaken paneled walls, the portraits of justices of the past hanging on its walls. Edward Dunphy, White Plains Corporation Council, is most impressed by a fireplace in the court room, tall enough, “that you can walk into it.” For a New York attorney, arguing at the Court of Appeals is like a ballplayer playing in Yankee Stadium. The exterior front capitals and bases are copies of those of the Temple of Nike Apteros on the Acropolis.
Photo from the Court of Appeals website
Dunphy recalls what it is like arguing before the Court of Appeals
WPCNR interviewed Edward Dunphy, city Corporation Counsel, last Friday, on what it is like for an attorney to argue in the state’s highest court:
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“What happens at the Court of Appeals, there are seven members and the attorneys will argue the case. After the case, what happens is the clerk has already prepared an index card for each case that’s argued that day. The cards are face down when they (the justices) come off the bench and each judge picks up the card, and that’s how the case gets assigned to the judge who’s going to report on it. Then they conference it the next day and make a decision.”
CITY CORPORATION COUNSEL, EDWARD DUNPHY, a man who’s been there, shared his thoughts on arguing before the state’s top court in his past.
Photo by WPCNR
Next, they wait: Dunphy said that being that it was an election matter a decision could come by the weekend, “being that it was an election matter.”
Dunphy said, arguing before the Court of Appeals is an experience: The court of Appeals is very ornate, wood-panelled, old courtroom that is still in style. It’s a majestic courtroom where lawyers like to go to argue, because you have a sense of being in a place where hard decisions are made, and strong legal decisions are made. Strong legal precedents have always come out of the Court of Appeals.”
Dunphy “Not surprised” Court agreed to hear the case. Delgado-Hockley has statewide impact.
WPCNR asked Dunphy if he was surprised the Court of Appeals agreed to hear the Delgado/Hockley matter. He said, “Not at all, because the case, in my opinion, has statewide application, not just for the city of White Plains but for the entire state of New York.
“One of the questions the court has to answer is whether you can do equity like Judge Nicolai did, and the appellate division sustained in an election matter or whether you just have to follow the dictates in the election law as laid out in the books. That’s one of the questions. One of the subsidiary questions the court has to answer, as Mr. Bradley has been saying, is whether the proper procedures have been followed, and thirdly, whether the remedy provided by Judge Nicolai, and modified by the Appellate Division is the correct remedy.”
Inside the chamber:
Dunphy said that the Judge selecting the Delgado-Hockley “Case Card” will report on the case: “He will have to report on the case and the judges will vote. And then they will structure the writings accordingly whether it’s a dissent or not. He makes a report and they all vote on it.”
“They could do a lot of things here. They could reverse it and go with Nicolai. Or they could affirm the Appellate Division, or make their own findings of law. They could say…the election as on November 5 are the results and there should be no other remedy.”
Delgado confident “going in.”
Larry Delgado, appearing at the Council of Neighborhood Associations, said he was “so glad that one way or another, this will be decided.” He said he felt confident, but that you could not tell how the Court of Appeals was going to go. Mr. Delgado and his wife were going up to Albany Thursday morning for the “final arguments.”
Delgado attorney points out Court of Appeals threw out two procedural protests in 2001
John Ciampoli, one of the Delgado attorneys, interviewed by WPCNR last weekend, said the two cases involving election law that the Court of Appeals agreed to hear last year ironically involved procedural matters similar to the arguments in the Delgado-Hockley matter. He said the Court of Appeals upheld lower court decisions overruling procedural requirements in favor of voter franchise.
DELGADO’S ATTORNEY: JOHN CIAMPOLI cites a Court of Appeals trend in recent years to uphold the right to vote over strict adherance to procedures.
Photo by WPCNR
Time stamp case, remarkable parallel.
In one case, Ciampoli said, there was a certificate that had to be filed to put someone on a ballot. A clerk at the Board of Elections in Nassau County did not put a time stamp on a document, and there was a movement to prevent the candidate from going on the ballot because the certificate was not time-stamped. The Court of Appeals ruled “we’re not going to keep someone off of a ballot and deny the voters a choice because someone forgot to put a time stamp on it.”
“And so, if you take that being analogus to this case (the failure to purchase a new index number,” Ciampoli said, “ the worst you can say is, the county clerk forgot to keep a copy of the whole thing and only kept a copy of one page before releasing it to the judge, because it was given to Mr. Delgado to walk to the judge.
In order for Bradley’s argument to have any merit, he is going to have to show a signed order from Judge Perrone or Judge Colabella saying ‘this case (the impoundment order) is closed.’He (Bradley) hasn’t shown me that, he hasn’t shown the courts that. So he loses. What he did manage to do is convince one appellate division judge that his letter that said no further proceedings was necessary concluded the case. When did we give Adam Bradley a black robe with the power to close the case?”
Make-up of Court not in question, according to Delgado attorney
Asked if the political affiliation of the court might make a difference (4 Governor Cuomo appointees, 3 Governor Pataki appointees), Ciampoli said, no.
“I can tell you this much about the Court of Appeals,” Ciampoli said, “I have been before them time and time again, and I haven’t always walked away happy. But I definitely have never walked away from the Court of Appeals without believing that they heard my arguments, gave me a fair hearing and that they understood what was before them, and did what they thought was right.
I know the judges, I’ve been before them for years, and I don’t think a party label makes any difference in the world to them. This is a good bench. Several of the judges have a lot of experience on election law before they got to the bench…I’m comfortable with these guys.”
JUDGES OF THE PAST LOOK DOWN ON HISTORY IN THE MAKING: Lining the courtroom where Adam Bradley and John Ciampoli are arguing their case today are portraits of former Chief Judges and Associate Judges of the Court of Appeals. Pictured here, top, are Benjamin N. Cardozo, the only Chief Judge of the New York Court of Appeals to be nominated to the Supreme Court of the United States, and below, Ward Hunt, the first judge of the Court of Appeals who served from 1873 to 1882. Judge Cardozo was nominated to the Supreme Court in 1932.
Photos from the Court of Appeals Website
As arguments are heard this afternoon, the justices of the past who stare in dignity from the walls of the courtroom will be looking down on a case that will be cited for centuries to come in New York Election Law. You cannot help wandering how they would rule this case.
Mr. Delgado ruefully acknowledged last night that “Delgado vs. Sunderland” will be the part of many an election lawyers’ briefs in the future.
The case will decide whether or not procedure will determine the outcome of an election. Whether disenfranchised voters still need to be heard if a procedural step is missed. Whether a voting machine can be ordered opened as a matter of election law. A host of matters will be adjudicated by the today’s Justices for elections of tomorrow across the state.
