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Snyder v Walsh

Snyder v Walsh

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Published by Nick Reisman

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Published by: Nick Reisman on Oct 16, 2013
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STATE OF NEW YORK ALBANY COUNTYSUPREME COURT _____________________________________________________________________ ERIC J. SNYDER, taxpayer and registered voter,Petitioner/Plaintiff, 
Decision, Order
& Judgment
JAMES A. WALSH and DOUGLASA. KELLNER, Co-Chairmen of the BOARDOF ELECTIONS OF THE STATE OF NEWYORK and their successors in Office,Respondents/Defendants. ___________________________________________________________________ Index No. 5449-13APPEARANCES:E
 Pro Se
598 Fifth StreetBrooklyn, New York 11215P
 New York State Board of Elections40 North Pearl Street, Suite 5Albany, New York 12207
Hon. Richard M. Platkin, A.J.S.C.This is a combined CPLR article 78 proceeding/action that was brought on by Order toShow Cause (Lynch, J.) signed on October 2, 2013 and made returnable on October 11, 2013. Inthe petition/complaint annexed to the Order to Show Cause, petitioner/plaintiff Eric J. Snyder sues respondents/defendants James A. Walsh and Douglas A. Kellner as Co-Chairs of the NewYork State Board of Elections (“SBOE”) seeking the following relief: (1) a declaration anddetermination that the SBOE’s dissemination of a ballot proposal and abstract for a proposedconstitutional amendment to allow casino gambling violates article VII, § 8 of the StateConstitution and Election Law § 4-108; and (2) an injunction restraining the SBOE fromallowing the proposed amendment to be voted upon at the November 5, 2013 general election.On October 7, 2013, the Court (Platkin, J) signed a second Order to Show Causeexpediting petitioner/plaintiff’s application for discovery pursuant to CPLR 408. The next day, petitioner/plaintiff filed and served an amended petition/complaint that adds the SBOE and itstwo other commissioners, Evelyn J. Aquila and Gregory P. Peterson, to the caption and alleges athird cause of action claiming that the ballot proposal and abstract were adopted by the SBOE inviolation of the Open Meetings Law (Public Officers Law art 7).On October 9, 2013, respondents/defendants moved to dismiss the petition/complaint onfour grounds: (1) statute of limitations; (2) laches; (3) failure to state a cause of action; and (4)failure to join necessary parties. They further argued that the petition/complaint could not beamended without leave of court and that petitioner/plaintiff failed to acquire personal jurisdictionover the new parties named for the first time in the amended pleading.Opposition to the motions was received on October 10, 2013, and oral argument was heldon October 11, 2013. This Decision, Order & Judgment follows.2
In 2012, the Governor submitted a concurrent resolution to the State Legislature to amendarticle I, § 9 of the State Constitution to allow for “casino gambling regulated by the state”. Theconcurrent resolution was approved by the Legislature in 2012 and again in 2013. Accordingly, the proposed amendment is to be submitted to voters at the November 5, 2013 general election.On July 29, 2013, the SBOE certified that the proposed amendment will appear on the ballot in the following form:The proposed amendment to section 9 of article 1 of the Constitutionwould allow the Legislature to authorize up to seven casinos in NewYork State for the legislated purposes of promoting job growth,increasing aid to schools, and permitting local governments to lower  property taxes through revenues generated. Should the amendment beapproved?The SBOE also certified the following abstract of the amendment:The purpose of the proposed amendment to section 9 of article 1 of theConstitution is to allow the Legislature to authorize and regulate up toseven casinos in New York State for the legislated purposes of  promoting job growth, increasing aid to schools, and permitting localgovernments to lower property taxes through revenues generated.Petitioner/plaintiff alleges that the language in the ballot proposal and abstract articulatingthe “legislated purposes” of the proposed amendment (“Purposes Language”) was included by theSBOE for “the sole objective of persuading the electorate to vote in favor of the GamblingAmendment”. Based upon the alleged inclusion of advocacy language, petitioner/plaintiff arguesthat the SBOE’s dissemination of the ballot proposal and abstract violates article VII, § 8 of theState Constitution, which prohibits the gift or loan of State funds in aid of any private undertaking.For a second cause of action, the petition/complaint alleges that the SBOE violated ElectionLaw § 4-108 by deviating from the ballot and abstract language supplied by the Attorney General.3

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