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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
_____________________________________________

_____________________________________________


MEMORANDUM OF LAW SUBMITTED IN SUPPORT OF PETITIONERS
ORDER TO SHOW CAUSE AND VERIFIED PETITION

STATEMENT OF FACTS
Petitioner respectfully refers this Court to the Verified Petition of Petitioners, submitted
herewith, for a recitation of the facts.

RICHARD S. CONTI, JAMES M. GAUGHAN,
CHRISTOPHER T. HIGGINS, PAMELA C.
ROBBINS, GLORIA DESOLE, JOHN M.
CLARKSON, CARA J. BROUSSEAU, JEFFREY
KUHN, JUDY L. DOESSCHATE, DALE A.
GETTO, DANIEL W. COFFEY, SUE H. R.
ADLER, MEREDITH BUTLER, and DANIEL C.
CURTIS,

Petitioners,

-against-


MATTHEW J. CLYNE and RACHEL L. BLEDI,
COMMISSIONERS CONSTITUTING THE
ALBANY COUNTY BOARD OF ELECTIONS,

Respondents,

-and-

JOHN H. CUNNINGHAM
as Objector,
Respondent-Objector.






MEMORANDUM
OF LAW


Index No. _________
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ARGUMENT
The issue can be summarized quite concisely. The Respondent Albany County Board of
Elections had and has no authority to consider or rule upon the allegations and questions of fact
and law upon which it based its determination to invalidate the designating petition of
Petitioners, and had and has no lawful authority to invalidate such petitions upon the facts of this
matter. Petitioners are all qualified voters of the Democratic Party eligible to serve in the party
positions of Delegate or Alternate Delegate to the 3
rd
Judicial District Convention, 109
th

Assembly District and timely submitted designating petitions that were proper in all respects
regarding necessary content and proper form, which contained well in excess of the number of
valid signatures needed to designate Petitioners as candidates for the party positions sought. The
form and content of the petitions, and the Petitioners qualifications, were in every respect
sufficient and proper to cause Petitioners to be designated as candidates for the positions sought
and their names to be placed on the ballot for the Primary Election to be held September 9, 2014.
The Petition was accepted by the Albany County Board of Elections as presumptively
valid. No Specifications of Objections alleged deficiencies in the form or content of Petitioners
designating petition, and no objection alleged that such petition lacked sufficient timely and valid
signatures. In short, no objections were filed in relation to the petition or any of the persons
named on the petition as candidates.
The sole basis for the Respondent-Objectors objections and for the Respondent Board of
Elections invalidation of the petition is that the candidates are alleged to be supporters of a
person whom an objector alleges is ineligible to be nominated as a candidate for Supreme Court
Justice.
In improperly, inexcusably, and baselessly invalidating Petitioners designating petition,
Respondents Matthew Clyne and Rachel Bledi committed not only gross, stunning, and
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outrageous malfeasance in the execution of their duties; they committed a serious violation of
Petitioners civil rights under the United States and New York State Constitutions. In effect,
Matthew Clyne and Rachel Bledi, constituting the Albany County Board of Elections, barred
twenty-three citizens of Albany County from exercising their right to seek election to serve as
delegates to the Judicial Convention and participate in the selection of the Justices of the
Supreme Court of this State, for no other reason than because of the views, values, preferences
and points of view that those citizens are alleged to hold and espouse. That is not allowed to
occur in the United States of America.

I. RESPONDENTS CLYNE AND BLEDI, AS THE BOARD OF ELECTIONS, ARE
CONSTRAINED TO MINISTERIAL REVIEW OF A PETITION AND HAVE NO
AUTHORITY TO CONSIDER MATTERS BEYOND THE FACE OF THE
PETITION.

A. Because the determination of the Board of Elections was based upon factors extrinsic
to the petition, the determination was outside the Boards lawful scope of review and
must be annulled.

On the fundamental question of law that alone resolves this matter in favor of the
Petitioners, there is little to add to the very clear and comprehensive directive of the Court of
Appeals in Schwartz v. Heffernan:
It is settled that boards of election have no power to deal with questions of
fact or with objections involving matters not appearing upon the face of the petition,
and that such extrinsic matters, if any, are to be determined in court proceedings
only. (Emphasis added). Matter of McGovern (Olson), 291 N.Y. 104, 108, 51 N.E.2d
666, 667. In other words, the board's power to determine the validity of a nominating
petition extends only to ministerial examination and the board may not go behind a
petition designating candidates for primary election (Abrahams' New York Election
Law, p. 339; see Gassman's Election Law, s 41). It follows that, when plaintiff's petition
was objected to, the board could do no more than scrutinize the face thereof, as to
compliance with the Election Law. If, as plaintiff alleges, such examination showed
compliance with the statute, the board was functus officio. It was bound to go no further,
but to accept the document and put plaintiff's name on the ballot. 304 N.Y. 474 (1952).
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If there is anything more to add, it is only to leave no doubt but that the law on this point
is venerable, consistent, current, and settled. A board of elections has no power upon its own
determination to reject a petition because of facts which do not appear on the face of the petition,
as, for example, facts that are claimed to make the designee ineligible for the office which he or
she seeks. 50 N.Y. Jur. 2d Elections 372. Extrinsic, ancillary, and evidentiary matters not
appearing on the face of the petition are not within the jurisdictional power of the board; this
authority is a judicial function reserved solely for the court. Id.
The Election Commissioners exhausted their powers when they passed on so much of
the objections as pointed to alleged defects on the face of the certificates. They had no power to
deal with objections involving matters not appearing upon the face of the papers. (Matter of
Frankel v Cheshire, 212 App. Div. 664, 671.) Such extrinsic matters could only be determined in
court proceedings. Matter of McGovern, 291 N.Y. 104.
See, also, e.g., Scaturro v. Maloney, 76 A.D.3d 688 (2
nd
Dept, 2010) (It is settled that
boards of election have no power to deal with questions of fact or with objections involving
matters not appearing upon the face of the [designating] petition, and that such extrinsic matters,
if any, are to be determined in court proceedings only (Schwartz v. Heffernan, 304 N.Y. 474,
480, 109 N.E.2d 68). Boards of election are vested only with the authority to perform a
ministerial examination of a designating petition (Schwartz v. Heffernan, 304 N.Y. at 480, 109
N.E.2d 68); Kaplan v. Meisser, 196 Misc. 237 (Sup. Ct., Queens Cty., 1949) (The Board of
Elections had no power upon its own determination to reject the designating petition because of
facts not appearing on the face thereof, which facts are claimed to make the designee respondent
ineligible for the office which he seeks); Application of Smith, 196 Misc. 109 (Sup. Ct. Albany
Cty., 1949) (The law is settled beyond dispute that jurisdiction of board of elections in passing
on sufficiency of designating or nominating petitions is confined strictly to ministerial as
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distinguished from judicial duties. Matter of Bednarsh v. Cohen, 267 App.Div. 133, 45 N.Y.S.2d
1); Pataki v. Hayduk, 87 Misc.2d 1096 (Sup. Ct., Westchester Cty., 1976). (A Board of
Elections exercises the ministerial function of examining the face of the petitions to determine
their compliance with the requirements of the Election Law. Once the Board has completed this
examination and made its determination it is functus officio. It is constrained to go no further);
Fuestel v. Garfinkle, 29 A.D.3d 831 (2
nd
Dept, 2006); Lucariello v. Commissioners of
Chatauqua County Board of Elections, 148 A.D.2d 1012 (4
th
Dept 1989).
There is an overwhelming body of New York law that circumscribes the scope of review
of a Board of Elections. It is ministerial, not judicial. It is facial to the petitions, not extrinsic to
them. Here, neither the Respondent-Objector nor the Respondent Board of Elections even
suggested that the Petitioner-Candidates designating petition was flawed in any way that was
within the lawful scope of the Boards ministerial review. It does not appear that the Board even
undertook a ministerial review. The only evaluation the Board appears to have madeand
certainly the only consideration relied upon to invalidate the petitionwas an extrinsic inquiry
that is precisely the sort of exercise that the Board is prohibited from undertaking.
Finally, to the extent any questions extrinsic to the petition are alleged by Respondents to
exist, Respondents have not commencedand no longer can commencea timely action
presenting such questions to the Court pursuant to Election Law section 102, which would be the
means to have them addressed. These questions are not before the court.
B. Because the Petitions were and are in proper form and bear the requisite number of
signatures, they must be validated by the Board.

The lack of authority to consider matters beyond the petition itself requires the
nullification of the Respondent Boards invalidation of Petitioners designating petition. But the
facts of this matter go further and require the validation of the designating petition and the
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certification of the candidacies of Petitioners and any other persons named as candidates on such
petition.
Petitioners, as well as non-party candidates Catherine Fahey and Regina Treffiletti, are all
qualified voters of the Democratic Party eligible to serve in the party positions of Delegate or
Alternate Delegate to the 3
rd
Judicial District Convention, 109
th
Assembly District and timely
submitted designating petitions that were proper in all respects regarding necessary content and
proper form, which contained well in excess of the number of valid signatures needed to
designate Petitioners as candidates for the party positions sought. The form and content of the
petitions, and the Petitioners qualifications, were in every respect sufficient and proper to cause
Petitioners to be designated as candidates for the positions sought and their names to be placed
on the ballot for the Primary Election to be held September 9, 2014.
Because the Respondent Board of Election must act in accordance with its ministerial
duties, it must act in accordance with these facts and validate the petition. It has no power or
discretion to do otherwise. In fact, the duty to properly carry out the Boards ministerial duties is
so great that the State of New York imposes personal liability upon a Commissioner of Elections
who breaches it. Schwartz v. Heffernan, 304 N.Y.474; 50 N.Y.Jur. 2d Elections 950; Gage v.
Monescalchi, 17 A.D.3d 770 (3
rd
Dept 2005).
II. THE PETITIONER CANDIDATES ARE ENTITLED, AS CITIZENS, TO SEEK
ELECTION TO SERVE AS DELEGATES TO THE 3
RD
DISTRICT JUDICIAL
CONVENTION.

The objector has tried, thorough a convoluted and bizarre argument, to make this a
question about Margaret Walsh. It is not a question about Margaret Walsh. The issue is exactly
what it appears to be: citizens who are qualified to run as candidates to be Delegates or Alternate
Delegates to the 3
rd
District Judicial Convention exercising their prerogative to gather petition
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signatures to be designated to enter a primary and, if successful at that primary, to participate as
delegates at the Judicial Convention. Contrary to the stunningly distorted view of the objectors
and, apparently, the Commissioners, a person cannot be barred from exercising their right to be a
candidate because of what they might desire to do if they are elected. Regardless of for whom a
delegateany delegatemay express support, a person elected to be a delegate to the judicial
convention is, in all legal senses, a free agent. Each delegate ultimately can support whomever he
or she chooses.
It may very well be the case that Petitioners and the additional candidates named on the
designating petition desire to see Margaret Walsh elected to the position of Justice of the
Supreme Court. And why wouldnt they? She has proven herself, as a judge, to be highly
qualified and worthy of such an important position. But it is, in every legal sense, immaterial
what the Petitioners desire or whom they would prefer to nominate. It is immaterial whether a
person they favor is eligible to serve in the position. Each delegate or candidate to be a delegate
is entitled to have his or her opinion as to who would be the best choice for the position of
Justice. If elected as a delegate, each individual delegate may opt to support whomever they
wish. Candidates for any office or position may publicly state their goals, wishes, intentions and
desires. They may identify the policiesand, yes, the personsthat they favor or support. And
whatever their preferences, desires, or intentionswhether practical, viable, or even lawful
they are allowed to have them and to state them without being barred from the ballot by
misguided Elections Commissioners.
If it were indeed the law of this State that a candidate for a position is barred from the
ballot for espousing, as a candidate, a desire to do something upon election that could not in fact
be accomplished once actually elected, it is not too much of a stretch to suggest that such a
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policy might leave the people of New York without a candidate for any office, in any place, at
any time.
The persons at issue here are the Petitioners and the other candidates named on the
designating petition. The rights at issue here are rights of those peoplethose citizens of Albany
County. They have a right to run, and they dont need Matt Clynes blessing to do so. They have
a right to pursue their individual desires to participate in the selection of the Justices of this State.
They have a right to be treated equally under the law. On the facts of this case, they have an
unquestionable right to appear on the ballot at the September 9
th
primary election.

III. MARGARET WALSH IS PERMITTED BY STATUTE TO BE NOMINATED AT
THE JUDICIAL CONVENTION TO BE A CANDIDATE AT THE GENERAL
ELECTION FOR THE POSITION OF JUSTICE OF THE SUPREME
COURT.

While it is clear from Parts I and II of this memorandum that the matter of Margaret
Walshs prospective nomination at the Judicial Convention to be a candidate for the position of
Justice of the Supreme Court is immaterial to resolving the matter currently before the Court, and
discussing Margaret Walsh may distract attention from the only legal issues involved in the
current matterthose issues set out in Parts I and II, supra, it is nevertheless important to refute
the misconception promoted by the Respondents that Margaret Walsh is ineligible to be so
nominated. Subdivision five of section 6-146 of the Election Law specifically authorizes the
scenario that the Respondent-Objector and Respondent Board erroneously allege prevents
Margaret Walsh from being nominated as a candidate for Justice of the Supreme Court. A
person who has been nominated for public office by a partyand who is thereafter nominated
for another office bysuch part[y]may decline such first nominationnot later than the third
day after the filing of the certificate of his nominationfor such other office. Election Law
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6-146(5). See, also, Dent v. Power, 136 N.Y.S.2d 561 (Sup. Ct. Queens Cty.,, 1954) (candidate
nominated at primary for office of U.S. Representative declined such nomination upon
subsequent nomination at party judicial convention for office of Supreme Court Justice (but then
later reversed himself)).
As applied to Margaret Walsh, this provides as follows: A person who has been
nominated for the public off ice of Family Court Judge by the Democratic Party and who is
thereafter nominated for the office of Justice of the Supreme Court by the Democratic Party may
decline the nomination for Family Court Judge not later than the third day after filing the
certificate of her nomination for Justice of the Supreme Court.
Yet, even though this statute describes and authorizes the precise scenario that the
Objector sets out, the Objector and Respondent Board deny its obvious applicability. The
Respondent-Objector has erroneously relied on a number of cases that address a problem that
does not exist here: the prospect that at person could appear on the General Election ballot for
two different offices at the same time, in which case the voters election of the candidate to one
of the offices would be futile. Here, should Margaret Walsh be nominated as a candidate for
Justice of the Supreme Court, her two potential nominations would be sequential, not concurrent,
and she would be permitted, pursuant to Election Law 6-146, to decline one and appear on the
General Election ballot as a candidate for one office only. Election Law 6-146 is very limited
in its applicability, but what it does do is make permissible the precise scenario the Respondents
believe precludes Margaret Walsh from being nominated as a candidate for Justice of the
Supreme Court.
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CONCLUSION
For the reasons set out above, it is plain that the Respondents Matthew J. Clyne and
Rachel L. Bledi, as Commissioners Constituting the Albany County Board of Elections, had no
lawful authority to invalidate the designating petitions bearing the names of the Petitioners and
other candidates. The facts of this case require precisely the opposite: the Respondent Board
must validate the petition and certify the candidacy of each person named on it. Petitioners have
had their fundamental rights to participate in democracy stolen by this shocking and brazen act
of malfeasance by Respondents Matthew Clyne and Rachel Bledi, and we respectfully request
that this Court make right what those Commissioners have so outrageously made wrong.

Dated: Chatham, New York
July 24, 2014
_____________________________
Kenneth J. Dow, Esq.
P.O. Box 25
Chatham, NY 12037
(518)817-7394
Attorney for Petitioners