Tag Archives: State Supreme Court

The #ECLeg Downsizing Debacle: In Court Now (Liveblog)

6 Oct
Erie County Hall. Buffalo NY

Image via Wikipedia

I am in State Supreme Court right now for the hearing before Justice Sedita on the Erie County Legislature downsizing “which clerk is the right clerk” debacle.

Currently in the chambers are Legislators Walter, Dixon, Kennedy, Bove, Loughran, and Kozub, as well as County Clerk Kathy Hochul, Clerk of the Legislature Bobby Graber, EC BOE Commissioners Dennis Ward and Ralph Mohr. Rich Grimm III and Ned Perlman are representing members of CE Chris Collins, as well as the following legislators: Mills, Fudoli, Hardwick, Dixon, Rath, Loughran, Bove, Walter, Kennedy, Walter, and Kozub. Mike Perley is representing the BOE. Kevin Gaughan has not yet arrived.

Updates to follow, top to bottom.

UPDATE 10:49: Kevin Gaughan has arrived and the proceedings are beginning, with several items being placed into the record. A few legislators have added their names to the lawsuit today, including Kozub. A majority of the legislature has signed on to the suit.

Judge Sedita notes that Matt Spina’s article in the News yesterday indicates that the BOE has opted not to be represented by the County Attorney (that office agrees that there is a conflict of interest between it and the BOE), but that the County Attorney had rendered an opinion about this issue. He contacted acting County Attorney Wheaton about bringing in those memoranda to make them part of the record.

None of the attorneys object, but the BOE argues that the litigants only should enter materials in the record.

UPDATE 11:09: Judge Sedita notes that it doesn’t matter who transmitted the referendum, is it certified, and is it accurate?  The key is whether or not the referendum to be placed before the voter is accurate; i.e., does it accurately reflect what the legislature passed.

Judge Sedita notes that Kevin Gaughan got very quick service from the court on this matter, and that a decision should be entered later today or tomorrow.  Argument begins with Attorney Timothy Lovallo, representing Mr. Gaughan.

LOVALLO (for petitioner Kevin Gaughan):  The BOE is guilty of nitpicking.  Judge Sedita rebuts that their job is ministerial, and asks LoVallo to address the issue of improper certification of the referendum by the wrong clerk.  LoVallo notes that legislature clerk Robert Graber certified the proposed ballot question, but that no formal reply was received from the BOE – it was instead through the press.  That there is nothing in writing directly from the BOE – the BOE’s attorney Michael Perley notes that a written determination hadn’t been issued, but the BOE “waives” any objection as to ripeness for this argument.  LoVallo argues that Leg Clerk Graber certified the proposed local law in August, and the Election Law section 4-108(1)(b) requires “and a statement of the form in which it is to be submitted”; i.e., an abstract of the referendum – the law doesn’t require the transmittal to the BOE to be certified by anyone.  The Election Law text is:

b. Whenever any proposal, proposition or referendum as provided by law is to be submitted to a vote of the people of a county, city, town, village or special district, at an election conducted by the board of elections, the clerk of such political subdivision, at least thirty-six days prior to the election at which such proposal, proposition or referendum is to be submitted, shall transmit to each board of elections a certified copy of the text of such proposal, proposition or referendum and a statement of the form in which it is to be submitted. If a special election is to be held, such transmittal shall also give the date of such election.

Taken in conjunction with the Municipal Home Rule Law secs. 25 – 27, the clerk of the legislature is authorized to make the necessary certification.

Kevin Gaughan doesn’t add to the argument significantly.  The County Attorney’s memorandum is in support of the plaintiffs’ position.  Ned Perlman clarifies that the BOE will not rely on the affirmative defenses of ripeness or statute of limitations based on the fact that there hasn’t been any written determination from the BOE about whether this proposition shall be on the ballot.  Michael Perley notes that the only formal rejection is the board’s certification of the ballot itself, and that the proposition does not appear on it.

UPDATE 11:30:

PERLMAN (for the governmental Petitioners): Arguing on behalf of the plaintiffs, notes that the municipal home rule law defines certifying clerk as, among others, the clerk of the board of supervisors, which is synonymous with clerk of the legislature.  He reads it in conjunction with §4-108, which contains the “clerk of such political subdivision” language – he argues, that this means city, town, village, county…  Section 28 of the Municipal Home Rule Law holds that, when there’s a disagreement on which clerk does what –

§ 28. Law applicable to conduct of elections at which ballot questions
  are  submitted  to  all  the  voters  of  a  city. The provisions of the
  election law or any other law relating to the submission of questions at
  general  elections,  so  far  as  the  same  are  applicable   and   not
  inconsistent  with  this  article,  shall  apply  to  the conduct of all
  elections at which questions are submitted to all the voters of a  city.
  Where  a  specific  provision  of  law  exists in any other law which is
  inconsistent with the provisions of the  election  law,  such  provision
  shall  apply  unless a provision of the election law specifies that such
  provision of the election law  shall  apply  notwithstanding  any  other
  provision of law.

Perlman argues that §28 of the Municipal Home Rule Law holds that, when there’s a disagreement on which clerk does what, the Municipal Home Rule Law permits the clerk of the legislature to make the necessary certification, because it “shall apply”.

PERLEY (for the BOE):  The Home Rule Law section cited by Mr. Perlman doesn’t apply here because this is a county referendum, not a city referendum.  “The Home Rule Law and the County Charter have at their core a concession that the Election Law shall be the governing law for questions to voters, except where otherwise specified…the relevant parts of the Home Rule Law was enacted in 1963, and the Election Law 4-108(b) was amended in 1985”. So, the legislature knew what they were doing viz. the Home Rule Law.  Thus, §4-108(b) refers specifically to the county clerk as the clerk of the relevant “political subdivision”; i.e., Erie County.

Note: based on his questioning of the attorneys, it would appear that Judge Sedita’s biggest problem is that Kathy Hochul did not certify the proposed referendum as being a true copy of what the county legislature wants to put before the voters.

The plaintiffs concede that they never sought or obtained Hochul’s certification, and the proposal is not legally permitted to be placed on the ballot as a ministerial issue.

Note:  Both Democratic BOE Commissioner Ward and Republican BOE Commissioner Mohr are putting up a united front in this proceeding – they are making the same sotto voce comments in the same way to the same arguments.

The attorneys are arguing what the case of Lenihan v. Blackwell & Mohr from 1994.  Judge Sedita states from the bench that the Lenihan case does not provide him with any guidance in this case – he states that this case before him is a matter of first impression.  (The Lenihan case involved a disagreement among the BOE commissioners, and the fact that the text of the referendum wasn’t clear and complete enough – neither situation is alleged here).

PERLEY (for the BOE):  There are four steps of compliance, and the BOE must have the certified proposition to be submitted, certified by Kathy Hochul.  The proposal in this case was not certified by anybody – not Hochul or Graber. Perley argues that the only document that has been certified – in August by Graber – is the proposed local law that would go into effect if the referendum passes. There is no evidence in the record that the form of the referendum/ballot question was ever approved by the legislature.

Judge Sedita responds: “Where’s the Beef, Mr. Perley?”  The Judge notes that the County Attorney rendered an opinion that the legislature could do exactly what it did.  “Where’s the certification” versus “this is how it’s been done since 2002.”

Finally, Perley argues that Mr. LoVallo’s “substantial compliance” argument won’t wash, but that this requires strict compliance with the text of the law.

UPDATE 12:04:

LOVALLO (for Kevin Gaughan): The court is right to distinguish the Lenihan case, because the issue of certification was tangential.   The only thing there was an affidavit from Comm’r Mohr indicating that nothing had been certified – neither the law nor the abstract of the referendum text.  Mr. Perley is confusing 4-108’s requirement about certification, because the “proposition to be adopted by the voters” must be certified – that is the local law. The ballot question – the abstract – does not need to be certified reading 4-108 strictly.

There should be a presumption of regularity and compliance when the local law is certified by the clerk of the Erie County Legislature.  The BOE’s role should be to presume that everything is in order – and this is “ridiculous and unfair to the taxpayers”.  The proposition itself – the local law – was properly certified.  Ned Perlman stands to echo what LoVallo said. The statute doesn’t say that the clerk of the county must certify the document – just that the document that’s transmitted must be certified.  Judge Sedita counters that 4-108 requires the county clerk to make the certification – Sedita believes that the “clerk of the political subdivision” is Kathy Hochul – he asks Mr. Perlman, “where’s the beef?” Perlman responds, “I don’t have one, your honor”.

PERLEY (for the BOE): The procedure must be strictly followed.  Judge Sedita again brings up the Matt Spina article that it’s been done this way since 2002.  Mohr and Ward can be heard muttering,”not true” from the defense table.

JUSTICE SEDITA: There’s nothing ambiguous here.  This was a 2-year battle in the legislature.  “Why shouldn’t the people of the county have the right to vote up or down on this?  Isn’t there a sense of justice or estoppel” that if it’s been done one way for years, why is a technicality being brought up as a barrier now? The hard-letter law as to the purpose of the law is to ensure that the referendum is what the legislature wanted – “is it an accurate recitation of what the legislature did?” Judge Sedita would answer that question in the affirmative. Perley notes that the law does not countenance estoppel against governmental entities.  Judge Sedita wonders whether it pertains to hypertechnical opposition to referenda.

There is no law of the state of New York on this that the court can find.  There’s nothing in the 4th App Div or the Court of Appeals, and the Lenihan case is not on point, and it’s 16 years old and has to do with the people not  knowing what they’re voting on – a different set of facts.  So, the judge recognizes that his decision and order will make new law. He notes that the legislature asked the County Attorney what to do, and they followed that advice on behalf of the people.  Does the statute really care who certifies it?  The county clerk?  The clerk of the legislature?  Kathy Hochul states that her office would only certify the results of the referendum – not its text ahead of time.  The judge notes that if the issue is accuracy, Graber’s certification is as good as any.

The Judge is preparing to adjourn for the day.  The lawyers will have an opportunity to submit additional papers.

At 2pm, 3pm tomorrow, the Judge will give his decision from the bench.

(Thank you to Justice Sedita for granting me permission to liveblog from his courtroom)