1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________ MATTHEW PARISH, THOMAS JACCARINO, TOM CONNOLLY, and THE INDEPENDENCE PARTY OF NEW YORK, Plaintiffs, NOTICE OF MOTION -against- 5:17-CV-344 (BKS/DEP) PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections; GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections; DUSTIN M. CZARNY, in his official capacity as Commissioner of the Onondaga County Board of Elections; MICHELE L. SARDO, in her official capacity as Commissioner of the Onondaga County Board of Elections; DIANNE KUFEL, in her official capacity as Clerk of the Village of North Syracuse; MARY ELLEN SIMS, in her official capacity as Clerk of the Village of Liverpool, Defendants. _________________________________________________ Motion By: ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Peter S. Kosinski, Douglas A. Kellner, Andrew J. Spano and Gregory P. Peterson By: Aimee Paquette Assistant Attorney General, of Counsel Bar Roll No. 516178 Time and Place of Hearing: May 18, 2017, at 10:00 a.m. before Judge Brenda K. Sannes to be held at the United Case 5:17-cv-00344-BKS-DEP Document 23 Filed 04/10/17 Page 1 of 3 1 States District Courthouse in Syracuse, New York Relief and Basis: An Order denying Plaintiffs’ motion for a preliminary injunction, or in the alternative, a permanent injunction, and an Order pursuant to Fed. R. Civ. P. 12(b)(6) dismissing Plaintiff’s complaint against Defendants Peter S. Kosinski, Douglas A. Kellner, Andrew J. Spano and Gregory P. Peterson in its entirety, with prejudice and for such other and further relief as the Court deems just and proper. Supporting Papers: Declaration of Aimee Paquette, Esq., with attached Exhibits “A-E” and Defendants’ Memorandum of Law. Dated: Syracuse, New York April 10, 2017 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Kosinski, Kellner, Spano and Peterson 615 Erie Blvd. West, Suite 102 Syracuse, New York 13204 By: ___/s____________ Aimee Paquette Assistant Attorney General, of Counsel Bar Roll No. 516178 Telephone: (315) 448-4800 Fax: (315) 448-4853 Email: aimee.paquette@ag.ny.gov To: Timothy J. Lambrecht Attorney for Plaintiffs Wladis Law Firm, P.C. P.O. Box 245 Syracuse, NY 13214 John E. Heisler , Jr. Attorney for Defendants Michele Sardo and Dustin Czarny Onondaga County Department of Law John H. Mulroy Civic Center Case 5:17-cv-00344-BKS-DEP Document 23 Filed 04/10/17 Page 2 of 3 2 421 Montgomery Street, 10th Floor Syracuse, NY 13202 Elizabeth A. Hoffman Attorney for Defendant Mary Ellen Sims Costello, Cooney Law Firm - Syracuse Office 500 Plum Street - Suite 300 Syracuse, NY 13204 John R. Langey Attorney for Defendant Mary Ellen Sims Costello, Cooney Law Firm - Syracuse Office 500 Plum Street - Suite 300 Syracuse, NY 13204 Case 5:17-cv-00344-BKS-DEP Document 23 Filed 04/10/17 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________ MATTHEW PARISH, THOMAS JACCARINO, TOM CONNOLLY, and THE INDEPENDENCE PARTY OF NEW YORK, Plaintiffs, ATTORNEY DECLARATION -against- 5:17-CV-344 (BKS/DEP) PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections; GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections; DUSTIN M. CZARNY, in his official capacity as Commissioner of the Onondaga County Board of Elections; MICHELE L. SARDO, in her official capacity as Commissioner of the Onondaga County Board of Elections; DIANNE KUFEL, in her official capacity as Clerk of the Village of North Syracuse; MARY ELLEN SIMS, in her official capacity as Clerk of the Village of Liverpool, Defendants. Aimee Paquette, pursuant to § 1746 of Title 28 of the United States Code, declares the following to be true and correct under penalty of perjury under the laws of the United States of America: 1. I am an Assistant Attorney General for the State of New York and appear in this action on behalf of Eric Schneiderman, Attorney General for the State of New York, attorney for Defendants PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Case 5:17-cv-00344-BKS-DEP Document 23-1 Filed 04/10/17 Page 1 of 5 Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections and GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections (“Defendants”), in this action. 2. Being sufficiently familiar with the facts and circumstances of this case, this Declaration is made in opposition to Plaintiffs’ motion for a preliminary injunction or in the alternative, for a permanent injunction, and in support of Defendants’ motion made pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing Plaintiffs’ complaint based on failure to state a claim upon which relief can be granted. RELEVANT PROCEDURAL HISTORY 3. Plaintiffs filed a Summons and Complaint on March 27, 2017, demanding declaratory and injunctive relief and alleging that pursuant to 42 U.S.C. §1983, Defendants violated Plaintiffs’ rights under the First Amendment of the United States Constitution by prohibiting them from acting as witnesses to independent nominating petitions in village elections under New York State Election Laws. (See, Dkt. #1). 4. On March 28, 2017, Plaintiffs filed an “emergency motion” for preliminary injunction by Order to Show Cause. (See, Dkt. 5). 5. However, as no Defendants had appeared in the case, the Court required Plaintiffs to serve the motion on all Defendants and file a Certificate of Service by April 3, 2017. (See, Dkt. 6). 6. Subsequently, Plaintiffs filed a Certificate of Service regarding service of the motion on all Defendants on March 29, 2017. (See, Dkt. 7). 7. Plaintiffs’ summonses were returned executed on Defendants on March 30, 2017. (See, Dkt. 9). Case 5:17-cv-00344-BKS-DEP Document 23-1 Filed 04/10/17 Page 2 of 5 RELEVANT FACTS 8. Plaintiffs’ Complaint challenges N.Y. Elec. Law §§ 6-204(1), 6-206(2) 15-108(3) and 15-108(4) as unconstitutional because they infringe upon Plaintiffs’ First Amendment rights to free speech and freedom of association. (See, Dkt. 1, ¶1). 9. Specifically, Plaintiffs allege that these statutes unconstitutionally require that persons who witness party designating petitions and independent nominating petitions to place candidates for village officers on the ballot must be residents of the village for which the candidate is seeking a village public office. (See, Id. at ¶2). 10. According to Plaintiffs’ Complaint, March 6, 2017 was the first day that individuals could sign a party primary designating petition. (Id. at ¶7, citing N.Y. Elec. Law 15-108(9)). 11. Additionally, Plaintiffs allege that village voters may begin signing independent nominating petitions on April 4, 2017. (See, Id. at ¶5). 12. On April 10, 2017, individuals may begin filing party designating petitions and can do so until April 17, 2017. (See, Id. at ¶7, citing N.Y. Elec. Law 15-108(7)(d)). 13. May 9, 2017 is the first day that independent nominating petitions may be filed with the village clerk and May 16, 2017 is the last day they may be filed with the village clerk. (See, Id. at ¶5). 14. The North Syracuse and Liverpool village elections will take place June 20, 2017. (See, Id. at ¶4). 15. Plaintiffs allege that they all want to serve as a witness for candidate petitions in village elections both within and outside his county. Specifically, Plaintiffs wish to serve as witnesses to both independent nominating petitions and party designating petitions for candidates in the June 20, 2017 elections in the villages of North Syracuse and Liverpool. (See, Id. at ¶¶14-19). Case 5:17-cv-00344-BKS-DEP Document 23-1 Filed 04/10/17 Page 3 of 5 16. Attached as Exhibit “A”1 are the current Rules of the New York State Committee of the Independence Party, publicly filed with the New York State Board of Elections on September 19, 2016. 17. Attached as Exhibit “B”2 are the current rules of the Onondaga County Independence Interim County Organization, publicly filed with the New York State Board of Elections on March 2, 2009. 18. Attached as Exhibits “C”3 and “D,”4 respectively, is a bill passed by both the Senate and Assembly of the New York State Legislature regarding the removal of village residency requirements in the election law (although note that the Senate recently returned the bill to the Assembly after the Senate passed the bill). The Legislature Information regarding that bill is attached as Exhibit “E.”5 19. Therefore, based upon this Declaration and its attached Exhibits and Defendants’ Memorandum of Law, Defendants now move for an order denying Plaintiffs’ motion for preliminary injunction, or in the alternative a permanent injunction, and an order dismissing 1 As a general rule, “[i]n considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 267-68 (S.D.N.Y. 2005)(citing Kramer v. Time Warner, Inc. 937 F.2d 767, 773 (2d Cir.1991)). However, the court may also consider matters of which judicial notice may be taken, even if the corresponding documents are not attached to or incorporated by reference in the complaint. Id. at 268, (citing Thomas v. Westchester Cty. Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002); Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir.1999). In particular, the court may take judicial notice of public records. Id.; see also, Schubert v. City of Rye, 775 F. Supp. 2d 689, 695 (S.D.N.Y. 2011)(matters of public record are the types of materials of which a court may take judicial notice). 2 See, fn. 1. 3 See, fn. 1; see also, http://legislation.nysenate.gov/pdf/bills/2017/S218. 4 See, fn. 1; see also, http://legislation.nysenate.gov/pdf/bills/2017/A567. 5 See, fn. 1. Case 5:17-cv-00344-BKS-DEP Document 23-1 Filed 04/10/17 Page 4 of 5 Plaintiffs’ Complaint pursuant to FRCP 12(b)(6), based on Plaintiffs’ failure to state a claim upon which relief can be granted. Pursuant to Section 1746 of Title 28 of the United States Code, I declare under penalty of perjury that the foregoing is true and correct. Dated: April 10, 2017 ___________s/______________________ Aimee Paquette, Esq. Assistant Corporation Counsel Fed. Bar Roll No. 516178 Case 5:17-cv-00344-BKS-DEP Document 23-1 Filed 04/10/17 Page 5 of 5 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 1 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 2 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 3 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 4 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 5 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 6 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 7 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 8 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 9 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 10 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 11 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 12 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 13 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 14 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-2 Filed 04/10/17 Page 15 of 15 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 1 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 2 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 3 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 4 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 5 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 6 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 7 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 8 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 9 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 10 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 11 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 12 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 13 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 14 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 15 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 16 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 17 of 18 Case 5:17-cv-00344-BKS-DEP Document 23-3 Filed 04/10/17 Page 18 of 18 S T A T E O F N E W Y O R K ________________________________________________________________________ 218 2017-2018 Regular Sessions I N S E N A T E (PREFILED) January 4, 2017 ___________ Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when printed to be committed to the Committee on Elections AN ACT to amend the election law, in relation to requirements of witnesses to a designating petition or independent nominating petition THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivisions 2 and 3 of section 6-132 of the election law, 2 as amended by chapter 447 of the laws of 2006, are amended to read as 3 follows: 4 2. There shall be appended at the bottom of each sheet a signed state- 5 ment of a witness who is a duly qualified voter of the state [and], WHO 6 IS an enrolled voter of the same political party as the voters qualified 7 to sign the petition[, and who is also a resident of the political 8 subdivision in which the office or position is to be voted for. However, 9 in the case of a petition for election to the party position of member 10 of the county committee, residence in the same county shall be suffi- 11 cient] AND WHO HAS NOT PREVIOUSLY SIGNED A PETITION FOR ANOTHER CANDI- 12 DATE FOR THE SAME OFFICE. Such a statement shall be accepted for all 13 purposes as the equivalent of an affidavit, and if it contains a materi- 14 al false statement, shall subject the person signing it to the same 15 penalties as if he or she had been duly sworn. The form of such state- 16 ment shall be substantially as follows: 17 STATEMENT OF WITNESS 18 I,..................... (name of witness) state: I am a duly qualified 19 voter of the State of New York and am an enrolled voter of 20 the....................... party. I now reside at.................... 21 (residence address). 22 Each of the individuals whose names are subscribed to this petition 23 sheet containing................. (fill in number) signatures, 24 subscribed the same in my presence on the dates above indicated and EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03286-01-7 Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 1 of 7 S. 218 2 1 identified himself or herself to be the individual who signed this 2 sheet. 3 I understand that this statement will be accepted for all purposes as 4 the equivalent of an affidavit and, if it contains a material false 5 statement, shall subject me to the same penalties as if I had been duly 6 sworn. 7 Date:....................... .......................... 8 Signature of Witness 9 Witness identification information: The following information must be 10 completed prior to filing with the board of elections in order for this 11 petition sheet to be valid. 12 Town or City County 13 ............ ........ 14 3. In lieu of the signed statement of a witness who is a duly quali- 15 fied voter of the state [qualified to sign the petition], the following 16 statement signed by a notary public or commissioner of deeds shall be 17 accepted: 18 On the dates above indicated before me personally came each of the 19 voters whose signatures appear on this petition sheet containing 20 ............. (fill in number) signatures, who signed same in my pres- 21 ence and who, being by me duly sworn, each for himself or herself, said 22 that the foregoing statement made and subscribed by him or her, was 23 true. 24 Date:.................. 25 ............................. 26 (Signature and official title 27 of officer administering oath) 28 S 2. Paragraph b of subdivision 1 and subdivision 2 of section 6-140 29 of the election law, paragraph b of subdivision 1 as amended by chapter 30 246 of the laws of 2009 and subdivision 2 as amended by chapter 447 of 31 the laws of 2006, is amended to read as follows: 32 b. There shall be appended at the bottom of each sheet a signed state- 33 ment of a witness who is a duly qualified voter of the state AND WHO HAS 34 NOT PREVIOUSLY SIGNED A PETITION FOR ANOTHER CANDIDATE FOR THE SAME 35 OFFICE. Such a statement shall be accepted for all purposes as the 36 equivalent of an affidavit, and if it contains a material false state- 37 ment, shall subject the person signing it to the same penalties as if he 38 or she had been duly sworn. The form of such statement shall be substan- 39 tially as follows: 40 STATEMENT OF WITNESS 41 I, ...................... (name of witness) state: I am a duly quali- 42 fied voter of the State of New York and now reside at 43 ........................................ (residence address). 44 Each of the individuals whose names are subscribed to this petition 45 sheet containing ........ (fill in number) signatures, subscribed the 46 same in my presence on the dates above indicated and identified himself 47 or herself to be the individual who signed this sheet. 48 I understand that this statement will be accepted for all purposes as 49 the equivalent of an affidavit and, if it contains a material false 50 statement, shall subject me to the same penalties as if I had been duly 51 sworn. 52 Date: ................ ......................... Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 2 of 7 S. 218 3 1 Signature of Witness 2 Witness identification information: 3 The following information must be completed prior to filing with the 4 board of elections in order for this petition sheet to be valid. 5 Town or City County 6 ............... ......... 7 2. In lieu of the signed statement of a witness who is a duly quali- 8 fied voter of the state [qualified to sign the petition], the following 9 statement signed by a notary public or commissioner of deeds shall be 10 accepted: 11 On the dates above indicated before me personally came each of the 12 voters whose signatures appear on this petition sheet containing 13 .......... (fill in number) signatures, who signed same in my presence 14 and who, being by me duly sworn, each for himself or herself, said that 15 the foregoing statement made and subscribed by him or her, was true. 16 Date: ...................... 17 ................................ 18 (Signature and official title 19 of officer administering oath) 20 S 3. Subdivision 1 of section 6-204 of the election law, as amended by 21 chapter 447 of the laws of 2006, is amended to read as follows: 22 1. Party designations for elective village offices shall be made on a 23 designating petition containing the signatures in ink of residents of 24 the village who are registered to vote with the appropriate county board 25 of elections at the time of signing and who are enrolled in such poli- 26 tical party. The sheets of such a petition shall be numbered. A signer 27 need not himself or herself fill in the date or residence. Each sheet of 28 such petition must be in substantially the following form and shall 29 contain all the information required therein: 30 PARTY DESIGNATING PETITION 31 I, the undersigned do hereby state that I am a registered voter of the 32 Village of ............. and a duly enrolled voter of the ............. 33 party and entitled to vote at the next primary election of such party, 34 that my place of residence is truly stated opposite my signature hereto, 35 and I hereby designate the following named person (or persons) as a 36 candidate or (candidates) for nomination of such party for the public 37 office or (public offices) to be voted for at the primary election to be 38 held on the ...... day of ............ 20.... as hereinafter specified. 39 Name of Candidate Public Office Term Residence 40 .................... ................. .......... ............ 41 .................... ................. .......... ............ 42 I do hereby appoint (insert names and addresses of at least three 43 persons, all of whom shall be enrolled voters of said party) as a 44 committee to fill vacancies in accordance with the provisions of the 45 election law. 46 In witness whereof, I have hereunto set my hand, the day and year 47 placed opposite my signature. 48 Date Name Residence Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 3 of 7 S. 218 4 1 ............. ............. ............... 2 ............. ............. ............... 3 STATEMENT OF WITNESS 4 I ............... (name of witness) state: I am a duly qualified voter 5 of the State of New York; and an enrolled voter of the ......... party 6 [and now reside in the Village of ......... County of ......... State 7 of New York at ............ (residence address) therein]. I NOW RESIDE 8 AT ..... (RESIDENCE ADDRESS). Each of the persons whose names are 9 subscribed to this petition sheet containing ......... signatures, 10 subscribed his or her name in my presence. 11 I understand that this statement will be accepted for all purposes as 12 the equivalent of an affidavit and, if it contains a material false 13 statement, shall subject me to the same penalties as if I had been duly 14 sworn. 15 ........................ ................................. 16 Date: Signature of witness 17 In lieu of the signed statement of a witness who is a duly qualified 18 voter of the state qualified to sign the petition, the following state- 19 ment signed by a notary public shall be accepted: 20 On the dates above indicated before me personally came each of the 21 voters whose signatures appear on this petition sheet containing 22 ............. (fill in number) signatures, who signed same in my pres- 23 ence and who, being by me duly sworn, each for himself or herself, said 24 that the foregoing statement made and subscribed by him or her, was 25 true. 26 Date.................. 27 ............................... 28 (Signature and official title 29 of officer administering oath) 30 Page No........ 31 S 4. Subdivision 1 of section 6-206 of the election law, as amended by 32 chapter 447 of the laws of 2006, is amended to read as follows: 33 1. Independent nominations for elective village offices shall be made 34 by a petition containing the signatures in ink of residents of the 35 village who are registered with the appropriate county board of 36 elections at the time of signing. The sheets of such a petition shall be 37 numbered. A signer need not himself or herself fill in the date or resi- 38 dence. Each sheet of such petition must be in substantially the follow- 39 ing form and shall contain all the information required therein: 40 VILLAGE INDEPENDENT NOMINATING PETITION 41 I, the undersigned, do hereby state that I am a registered voter of 42 the Village of......., that my present place of residence is truly stat- 43 ed opposite my signature, and I do hereby nominate the following named 44 person (or persons) as a candidate (or as candidates) for election to 45 public office (or public offices) to be voted for at the election to be 46 held on the.....day of........, 20....., and that I select the 47 name........... (fill in name) as the name of the independent body Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 4 of 7 S. 218 5 1 making the nomination (or nominations) and.....(fill in emblem) as the 2 emblem of such body. 3 Name of 4 Candidate Public Office Term Residence 5 ............. .................... .... ............... 6 ............. .................... .... ............... 7 I do hereby appoint (insert names and addresses of at least three 8 persons, all of whom shall be registered voters within such village) as 9 a committee to fill vacancies in accordance with the provisions of the 10 election law. 11 In witness whereof, I have signed this petition on the day and year 12 stated before my signature. 13 Date Signature Residence 14 .......... ................. ................... 15 .......... ................. ................... 16 STATEMENT OF WITNESS 17 I, ..................... state that I am a duly qualified voter [and 18 now reside at ...................... (residence address) in the Village 19 of ................ in the State of New York in the County of 20 .................] OF THE STATE OF NEW YORK. I NOW RESIDE 21 AT ................ (RESIDENCE ADDRESS). Each of the voters whose names 22 are subscribed to this petition sheet containing ................ (fill 23 in number) signatures, subscribed his or her name in my presence. 24 I understand that this statement will be accepted for all purposes as 25 the equivalent of an affidavit and, if it contains a material false 26 statement, shall subject me to the same penalties as if I had been duly 27 sworn. 28 ....................... .............................. 29 Date Signature of witness 30 S 5. Paragraph a of subdivision 3 of section 15-108 of the election 31 law, as amended by chapter 447 of the laws of 2006, is amended to read 32 as follows: 33 a. Party designations for elective village offices shall be made on a 34 designating petition containing the signatures in ink of residents of 35 the village who are registered to vote with the appropriate county board 36 of elections at the time of signing and who are enrolled in such poli- 37 tical party. The sheets of such a petition shall be numbered. Such peti- 38 tion must set forth in each instance the correct date of signing, the 39 name of the signer, and his or her present address, and may set forth a 40 committee to fill vacancies consisting of at least three qualified 41 voters of the village enrolled in such party and their residence within 42 the village. A signer need not himself or herself fill in the date or 43 residence. Each sheet of such petition must be in substantially the 44 following form and shall contain all the information required therein: 45 PARTY DESIGNATING PETITION 46 I, the undersigned do hereby state that I am a registered voter of the 47 Village of ...... and a duly enrolled voter of the ........ party and 48 entitled to vote at the next primary election of such party, that my 49 place of residence is truly stated opposite my signature hereto, and I 50 hereby designate the following named person (or persons) as a candidate Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 5 of 7 S. 218 6 1 (or candidates) for nomination of such party for the public office (or 2 public offices) to be voted for at the primary election to be held on 3 the ...... day of ........... 20.... as hereinafter specified. 4 Name of Candidate Public Office Term Residence 5 .................... ................. ....... ............... 6 .................... ................. ....... ............... 7 I do hereby appoint (insert names and addresses of at least three 8 persons, all of whom shall be enrolled voters of said party) as a 9 committee to fill vacancies in accordance with the provisions of the 10 election law. 11 IN WITNESS WHEREOF, I have hereunto set my hand, the day and year 12 placed opposite my signature. 13 Date Name Residence 14 ............. ............. ............... 15 ............. ............. ............... 16 STATEMENT OF WITNESS 17 I ............... (name of witness) state: I am a duly qualified voter 18 of the State of New York; and an enrolled voter of the ......... party 19 [and now reside in the Village of ......... County of ......... State of 20 New York at ............ (residence address) therein]. I NOW RESIDE 21 AT ..............(RESIDENCE ADDRESS). Each of the persons whose names 22 are subscribed to this petition sheet containing ......... signatures, 23 subscribed his or her name in my presence. 24 I understand that this statement will be accepted for all purposes as 25 the equivalent of an affidavit and, if it contains a material false 26 statement, shall subject me to the same penalties as if I had been duly 27 sworn. 28 S 6. Subdivision 4 of section 15-108 of the election law, as amended 29 by chapter 447 of the laws of 2006, is amended to read as follows: 30 4. Independent nominations for elective village offices shall be made 31 by a petition containing the signatures in ink of residents of the 32 village who are registered with the appropriate county board of 33 elections at the time of signing or who are residents of the village who 34 were on the list of registered voters for the last village election in 35 such village. The sheets of such a petition shall be numbered. Such 36 petition must set forth in each instance the correct date of signing, 37 the name of the signer and his or her present address, and may set forth 38 a committee to fill vacancies consisting of at least three persons qual- 39 ified to vote in the village election and their residence within the 40 village. A signer need not himself or herself fill in the date or resi- 41 dence. Each sheet of such petition must be in substantially the follow- 42 ing form and shall contain all the information required therein except 43 as may otherwise be permitted by law. 44 VILLAGE INDEPENDENT NOMINATING PETITION 45 I, the undersigned, do hereby state that I am a registered voter of 46 the Village of .........., that my present place of residence is truly 47 stated opposite my signature, and I do hereby nominate the following Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 6 of 7 S. 218 7 1 named person (or persons) as a candidate (or as candidates) for election 2 to public office (or public offices) to be voted for at the election to 3 be held on the ..... day of ........, 20....., and that I select the 4 name .............. (fill in name) as the name of the independent body 5 making the nomination (or nominations) and ..... (fill in emblem) as the 6 emblem of such body. 7 Name of Candidate Public Office Term Residence 8 .................... ................. ........ ................. 9 .................... ................. ........ ................. 10 I do hereby appoint _ _ _ _ 11 Name Residence 12 ............................. ................................. 13 ............................. ................................. 14 as a committee to fill vacancies in accordance with the provisions of 15 the election law. 16 IN WITNESS WHEREOF, I have signed this petition on the day and year 17 stated before my signature. 18 Date Signature Residence 19 ............. ................. ............... 20 ............. ................. ............... 21 STATEMENT OF WITNESS 22 I, ............... state that I am a duly qualified voter [and now 23 reside at ............. (residence address) in the Village 24 of ........... in] OF the State of New York [in the County 25 of ........ ]. I NOW RESIDE AT .......... (RESIDENCE ADDRESS). Each of 26 the voters whose names are subscribed to this petition sheet, 27 containing ........ (fill in number) signatures, subscribed his or her 28 name in my presence. 29 I understand that this statement will be accepted for all purposes as 30 the equivalent of an affidavit and, if it contains a material false 31 statement, shall subject me to the same penalties as if I had been duly 32 sworn. 33 Date .................... ........................... 34 Signature of Witness 35 S 7. This act shall take effect on the one hundred twentieth day after 36 it shall have become a law. Effective immediately, the addition, amend- 37 ment and/or repeal of any rules or regulations necessary for the imple- 38 mentation of this act on its effective date are authorized to be made on 39 or before such date. Case 5:17-cv-00344-BKS-DEP Document 23-4 Filed 04/10/17 Page 7 of 7 S T A T E O F N E W Y O R K ________________________________________________________________________ 567 2017-2018 Regular Sessions I N A S S E M B L Y January 9, 2017 ___________ Introduced by M. of A. ABINANTI, PAULIN, BRAUNSTEIN, WEPRIN, JAFFEE, HOOPER, BUCHWALD -- Multi-Sponsored by -- M. of A. GUNTHER, WALKER -- read once and referred to the Committee on Election Law AN ACT to amend the election law, in relation to requirements of witnesses to a designating petition or independent nominating petition THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivisions 2 and 3 of section 6-132 of the election law, 2 as amended by chapter 447 of the laws of 2006, are amended to read as 3 follows: 4 2. There shall be appended at the bottom of each sheet a signed state- 5 ment of a witness who is a duly qualified voter of the state [and], WHO 6 IS an enrolled voter of the same political party as the voters qualified 7 to sign the petition[, and who is also a resident of the political 8 subdivision in which the office or position is to be voted for. However, 9 in the case of a petition for election to the party position of member 10 of the county committee, residence in the same county shall be suffi- 11 cient] AND WHO HAS NOT PREVIOUSLY SIGNED A PETITION FOR ANOTHER CANDI- 12 DATE FOR THE SAME OFFICE. Such a statement shall be accepted for all 13 purposes as the equivalent of an affidavit, and if it contains a materi- 14 al false statement, shall subject the person signing it to the same 15 penalties as if he or she had been duly sworn. The form of such state- 16 ment shall be substantially as follows: 17 STATEMENT OF WITNESS 18 I,..................... (name of witness) state: I am a duly qualified 19 voter of the State of New York and am an enrolled voter of 20 the....................... party. I now reside at.................... 21 (residence address). 22 Each of the individuals whose names are subscribed to this petition 23 sheet containing................. (fill in number) signatures, 24 subscribed the same in my presence on the dates above indicated and EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03286-01-7 Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 1 of 7 A. 567 2 1 identified himself or herself to be the individual who signed this 2 sheet. 3 I understand that this statement will be accepted for all purposes as 4 the equivalent of an affidavit and, if it contains a material false 5 statement, shall subject me to the same penalties as if I had been duly 6 sworn. 7 Date:....................... .......................... 8 Signature of Witness 9 Witness identification information: The following information must be 10 completed prior to filing with the board of elections in order for this 11 petition sheet to be valid. 12 Town or City County 13 ............ ........ 14 3. In lieu of the signed statement of a witness who is a duly quali- 15 fied voter of the state [qualified to sign the petition], the following 16 statement signed by a notary public or commissioner of deeds shall be 17 accepted: 18 On the dates above indicated before me personally came each of the 19 voters whose signatures appear on this petition sheet containing 20 ............. (fill in number) signatures, who signed same in my pres- 21 ence and who, being by me duly sworn, each for himself or herself, said 22 that the foregoing statement made and subscribed by him or her, was 23 true. 24 Date:.................. 25 ............................. 26 (Signature and official title 27 of officer administering oath) 28 S 2. Paragraph b of subdivision 1 and subdivision 2 of section 6-140 29 of the election law, paragraph b of subdivision 1 as amended by chapter 30 246 of the laws of 2009 and subdivision 2 as amended by chapter 447 of 31 the laws of 2006, is amended to read as follows: 32 b. There shall be appended at the bottom of each sheet a signed state- 33 ment of a witness who is a duly qualified voter of the state AND WHO HAS 34 NOT PREVIOUSLY SIGNED A PETITION FOR ANOTHER CANDIDATE FOR THE SAME 35 OFFICE. Such a statement shall be accepted for all purposes as the 36 equivalent of an affidavit, and if it contains a material false state- 37 ment, shall subject the person signing it to the same penalties as if he 38 or she had been duly sworn. The form of such statement shall be substan- 39 tially as follows: 40 STATEMENT OF WITNESS 41 I, ...................... (name of witness) state: I am a duly quali- 42 fied voter of the State of New York and now reside at 43 ........................................ (residence address). 44 Each of the individuals whose names are subscribed to this petition 45 sheet containing ........ (fill in number) signatures, subscribed the 46 same in my presence on the dates above indicated and identified himself 47 or herself to be the individual who signed this sheet. 48 I understand that this statement will be accepted for all purposes as 49 the equivalent of an affidavit and, if it contains a material false 50 statement, shall subject me to the same penalties as if I had been duly 51 sworn. 52 Date: ................ ......................... Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 2 of 7 A. 567 3 1 Signature of Witness 2 Witness identification information: 3 The following information must be completed prior to filing with the 4 board of elections in order for this petition sheet to be valid. 5 Town or City County 6 ............... ......... 7 2. In lieu of the signed statement of a witness who is a duly quali- 8 fied voter of the state [qualified to sign the petition], the following 9 statement signed by a notary public or commissioner of deeds shall be 10 accepted: 11 On the dates above indicated before me personally came each of the 12 voters whose signatures appear on this petition sheet containing 13 .......... (fill in number) signatures, who signed same in my presence 14 and who, being by me duly sworn, each for himself or herself, said that 15 the foregoing statement made and subscribed by him or her, was true. 16 Date: ...................... 17 ................................ 18 (Signature and official title 19 of officer administering oath) 20 S 3. Subdivision 1 of section 6-204 of the election law, as amended by 21 chapter 447 of the laws of 2006, is amended to read as follows: 22 1. Party designations for elective village offices shall be made on a 23 designating petition containing the signatures in ink of residents of 24 the village who are registered to vote with the appropriate county board 25 of elections at the time of signing and who are enrolled in such poli- 26 tical party. The sheets of such a petition shall be numbered. A signer 27 need not himself or herself fill in the date or residence. Each sheet of 28 such petition must be in substantially the following form and shall 29 contain all the information required therein: 30 PARTY DESIGNATING PETITION 31 I, the undersigned do hereby state that I am a registered voter of the 32 Village of ............. and a duly enrolled voter of the ............. 33 party and entitled to vote at the next primary election of such party, 34 that my place of residence is truly stated opposite my signature hereto, 35 and I hereby designate the following named person (or persons) as a 36 candidate or (candidates) for nomination of such party for the public 37 office or (public offices) to be voted for at the primary election to be 38 held on the ...... day of ............ 20.... as hereinafter specified. 39 Name of Candidate Public Office Term Residence 40 .................... ................. .......... ............ 41 .................... ................. .......... ............ 42 I do hereby appoint (insert names and addresses of at least three 43 persons, all of whom shall be enrolled voters of said party) as a 44 committee to fill vacancies in accordance with the provisions of the 45 election law. 46 In witness whereof, I have hereunto set my hand, the day and year 47 placed opposite my signature. 48 Date Name Residence Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 3 of 7 A. 567 4 1 ............. ............. ............... 2 ............. ............. ............... 3 STATEMENT OF WITNESS 4 I ............... (name of witness) state: I am a duly qualified voter 5 of the State of New York; and an enrolled voter of the ......... party 6 [and now reside in the Village of ......... County of ......... State 7 of New York at ............ (residence address) therein]. I NOW RESIDE 8 AT ..... (RESIDENCE ADDRESS). Each of the persons whose names are 9 subscribed to this petition sheet containing ......... signatures, 10 subscribed his or her name in my presence. 11 I understand that this statement will be accepted for all purposes as 12 the equivalent of an affidavit and, if it contains a material false 13 statement, shall subject me to the same penalties as if I had been duly 14 sworn. 15 ........................ ................................. 16 Date: Signature of witness 17 In lieu of the signed statement of a witness who is a duly qualified 18 voter of the state qualified to sign the petition, the following state- 19 ment signed by a notary public shall be accepted: 20 On the dates above indicated before me personally came each of the 21 voters whose signatures appear on this petition sheet containing 22 ............. (fill in number) signatures, who signed same in my pres- 23 ence and who, being by me duly sworn, each for himself or herself, said 24 that the foregoing statement made and subscribed by him or her, was 25 true. 26 Date.................. 27 ............................... 28 (Signature and official title 29 of officer administering oath) 30 Page No........ 31 S 4. Subdivision 1 of section 6-206 of the election law, as amended by 32 chapter 447 of the laws of 2006, is amended to read as follows: 33 1. Independent nominations for elective village offices shall be made 34 by a petition containing the signatures in ink of residents of the 35 village who are registered with the appropriate county board of 36 elections at the time of signing. The sheets of such a petition shall be 37 numbered. A signer need not himself or herself fill in the date or resi- 38 dence. Each sheet of such petition must be in substantially the follow- 39 ing form and shall contain all the information required therein: 40 VILLAGE INDEPENDENT NOMINATING PETITION 41 I, the undersigned, do hereby state that I am a registered voter of 42 the Village of......., that my present place of residence is truly stat- 43 ed opposite my signature, and I do hereby nominate the following named 44 person (or persons) as a candidate (or as candidates) for election to 45 public office (or public offices) to be voted for at the election to be 46 held on the.....day of........, 20....., and that I select the 47 name........... (fill in name) as the name of the independent body Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 4 of 7 A. 567 5 1 making the nomination (or nominations) and.....(fill in emblem) as the 2 emblem of such body. 3 Name of 4 Candidate Public Office Term Residence 5 ............. .................... .... ............... 6 ............. .................... .... ............... 7 I do hereby appoint (insert names and addresses of at least three 8 persons, all of whom shall be registered voters within such village) as 9 a committee to fill vacancies in accordance with the provisions of the 10 election law. 11 In witness whereof, I have signed this petition on the day and year 12 stated before my signature. 13 Date Signature Residence 14 .......... ................. ................... 15 .......... ................. ................... 16 STATEMENT OF WITNESS 17 I, ..................... state that I am a duly qualified voter [and 18 now reside at ...................... (residence address) in the Village 19 of ................ in the State of New York in the County of 20 .................] OF THE STATE OF NEW YORK. I NOW RESIDE 21 AT ................ (RESIDENCE ADDRESS). Each of the voters whose names 22 are subscribed to this petition sheet containing ................ (fill 23 in number) signatures, subscribed his or her name in my presence. 24 I understand that this statement will be accepted for all purposes as 25 the equivalent of an affidavit and, if it contains a material false 26 statement, shall subject me to the same penalties as if I had been duly 27 sworn. 28 ....................... .............................. 29 Date Signature of witness 30 S 5. Paragraph a of subdivision 3 of section 15-108 of the election 31 law, as amended by chapter 447 of the laws of 2006, is amended to read 32 as follows: 33 a. Party designations for elective village offices shall be made on a 34 designating petition containing the signatures in ink of residents of 35 the village who are registered to vote with the appropriate county board 36 of elections at the time of signing and who are enrolled in such poli- 37 tical party. The sheets of such a petition shall be numbered. Such peti- 38 tion must set forth in each instance the correct date of signing, the 39 name of the signer, and his or her present address, and may set forth a 40 committee to fill vacancies consisting of at least three qualified 41 voters of the village enrolled in such party and their residence within 42 the village. A signer need not himself or herself fill in the date or 43 residence. Each sheet of such petition must be in substantially the 44 following form and shall contain all the information required therein: 45 PARTY DESIGNATING PETITION 46 I, the undersigned do hereby state that I am a registered voter of the 47 Village of ...... and a duly enrolled voter of the ........ party and 48 entitled to vote at the next primary election of such party, that my 49 place of residence is truly stated opposite my signature hereto, and I 50 hereby designate the following named person (or persons) as a candidate Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 5 of 7 A. 567 6 1 (or candidates) for nomination of such party for the public office (or 2 public offices) to be voted for at the primary election to be held on 3 the ...... day of ........... 20.... as hereinafter specified. 4 Name of Candidate Public Office Term Residence 5 .................... ................. ....... ............... 6 .................... ................. ....... ............... 7 I do hereby appoint (insert names and addresses of at least three 8 persons, all of whom shall be enrolled voters of said party) as a 9 committee to fill vacancies in accordance with the provisions of the 10 election law. 11 IN WITNESS WHEREOF, I have hereunto set my hand, the day and year 12 placed opposite my signature. 13 Date Name Residence 14 ............. ............. ............... 15 ............. ............. ............... 16 STATEMENT OF WITNESS 17 I ............... (name of witness) state: I am a duly qualified voter 18 of the State of New York; and an enrolled voter of the ......... party 19 [and now reside in the Village of ......... County of ......... State of 20 New York at ............ (residence address) therein]. I NOW RESIDE 21 AT ..............(RESIDENCE ADDRESS). Each of the persons whose names 22 are subscribed to this petition sheet containing ......... signatures, 23 subscribed his or her name in my presence. 24 I understand that this statement will be accepted for all purposes as 25 the equivalent of an affidavit and, if it contains a material false 26 statement, shall subject me to the same penalties as if I had been duly 27 sworn. 28 S 6. Subdivision 4 of section 15-108 of the election law, as amended 29 by chapter 447 of the laws of 2006, is amended to read as follows: 30 4. Independent nominations for elective village offices shall be made 31 by a petition containing the signatures in ink of residents of the 32 village who are registered with the appropriate county board of 33 elections at the time of signing or who are residents of the village who 34 were on the list of registered voters for the last village election in 35 such village. The sheets of such a petition shall be numbered. Such 36 petition must set forth in each instance the correct date of signing, 37 the name of the signer and his or her present address, and may set forth 38 a committee to fill vacancies consisting of at least three persons qual- 39 ified to vote in the village election and their residence within the 40 village. A signer need not himself or herself fill in the date or resi- 41 dence. Each sheet of such petition must be in substantially the follow- 42 ing form and shall contain all the information required therein except 43 as may otherwise be permitted by law. 44 VILLAGE INDEPENDENT NOMINATING PETITION 45 I, the undersigned, do hereby state that I am a registered voter of 46 the Village of .........., that my present place of residence is truly 47 stated opposite my signature, and I do hereby nominate the following Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 6 of 7 A. 567 7 1 named person (or persons) as a candidate (or as candidates) for election 2 to public office (or public offices) to be voted for at the election to 3 be held on the ..... day of ........, 20....., and that I select the 4 name .............. (fill in name) as the name of the independent body 5 making the nomination (or nominations) and ..... (fill in emblem) as the 6 emblem of such body. 7 Name of Candidate Public Office Term Residence 8 .................... ................. ........ ................. 9 .................... ................. ........ ................. 10 I do hereby appoint _ _ _ _ 11 Name Residence 12 ............................. ................................. 13 ............................. ................................. 14 as a committee to fill vacancies in accordance with the provisions of 15 the election law. 16 IN WITNESS WHEREOF, I have signed this petition on the day and year 17 stated before my signature. 18 Date Signature Residence 19 ............. ................. ............... 20 ............. ................. ............... 21 STATEMENT OF WITNESS 22 I, ............... state that I am a duly qualified voter [and now 23 reside at ............. (residence address) in the Village 24 of ........... in] OF the State of New York [in the County 25 of ........ ]. I NOW RESIDE AT .......... (RESIDENCE ADDRESS). Each of 26 the voters whose names are subscribed to this petition sheet, 27 containing ........ (fill in number) signatures, subscribed his or her 28 name in my presence. 29 I understand that this statement will be accepted for all purposes as 30 the equivalent of an affidavit and, if it contains a material false 31 statement, shall subject me to the same penalties as if I had been duly 32 sworn. 33 Date .................... ........................... 34 Signature of Witness 35 S 7. This act shall take effect on the one hundred twentieth day after 36 it shall have become a law. Effective immediately, the addition, amend- 37 ment and/or repeal of any rules or regulations necessary for the imple- 38 mentation of this act on its effective date are authorized to be made on 39 or before such date. Case 5:17-cv-00344-BKS-DEP Document 23-5 Filed 04/10/17 Page 7 of 7 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 1 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 2 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 3 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 4 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 5 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 6 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 7 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 8 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 9 of 10 Case 5:17-cv-00344-BKS-DEP Document 23-6 Filed 04/10/17 Page 10 of 10 i UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________ MATTHEW PARISH, THOMAS JACCARINO, TOM CONNOLLY, and THE INDEPENDENCE PARTY OF NEW YORK, Plaintiffs, -against- 5:17-CV-344 (BKS/DEP) PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections; GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections; DUSTIN M. CZARNY, in his official capacity as Commissioner of the Onondaga County Board of Elections; MICHELE L. SARDO, in her official capacity as Commissioner of the Onondaga County Board of Elections; DIANNE KUFEL, in her official capacity as Clerk of the Village of North Syracuse; MARY ELLEN SIMS, in her official capacity as Clerk of the Village of Liverpool, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION OR IN THE ALTERNATIVE, A PERMANENT INJUNCTION AND IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6) Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 1 of 19 ii ERIC T. SCHNEIDERMAN Attorney General of the State of New York Syracuse Regional Office Attorney for Defendants Kosinski, Kellner, Spano and Peterson 615 Erie Blvd. West, Suite 102 Syracuse, NY 13204 Aimee Paquette Assistant Attorney General, of Counsel Bar Roll No. 516178 Telephone: (315) 448-4800 Fax: (315) 448-4853 E-mail: Aimee.Paquette@ag.ny.gov Date: April 10, 2017 Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 2 of 19 iii TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………..……..iv PRELIMINARY STATEMENT………………………………………………………………...1 STATEMENT OF FACTS………………………………………………………………………1 ARGUMENT I. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, OR IN THE ALTERNATIVE, A PERMANENT INJUNCTION, SHOULD BE DENIED……….2 II. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CAUSE OF ACTION………………9 CONCLUSION………………………………………………………………….……………...11 Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 3 of 19 iv TABLE OF AUTHORITIES Cases Albright v. Oliver, 510 U.S. 266 (1994)…………………………………………………………..10 Ashcroft v. Iqbal, 556 U.S. 662 (2009)………………………………………………………..10, 11 Beal v. Stern, 184 F.3d 117 (2d Cir. 1999)………………………………………………………..4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)………………………………………..10, 11 Chou v. New York State Bd. of Elections, 332 F.Supp.2d 510 (E.D.N.Y. 2004)………………….8 Conservative Party of N.Y. State v. N.Y. State Bd. of Elections, 2010 WL 4455867 (S.D.N.Y. 2010)………………………………………………………………………………………………2 Crookston v. Johnson, 2016 WL 6311623 (6th Cir. 2016)………………………………………..2 Doe v. N.Y. Univ., 666 F.2d 761 (2d Cir. 1981)………………………………………………...4, 8 E.I. Dupont de Nemours & Co. v. Invista B.V., 473 F.3d 44 (2d Cir. 2006)………………………5 Environmental Services, Inc. v. Recycle Green Services, Inc., 7 F. Supp. 3d 260 (E.D.N.Y 2014)...7 FC Online Marketing, Inc. v. Burke’s Martial Arts, LLC, 2015 U.S. Dist. LEXIS 89415 (E.D.N.Y. 2015)………………………………………………………………………………………………7 Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985)………………………………………..……..10 Jackson v. Onondaga County, 549 F.Supp.2d 204 (N.D.N.Y. 2008)…………………………….10 Jaufman v. Levine, 2007 WL 2891987 (N.D.N.Y. 2007)…………………………………………10 JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir.1990)………………………………7 LaBrake v. Dukes, 96 N.Y.2d 913 (2001)………………………………………………………….8 Lerman v. Bd. of Elections, 232 F.3d 135 (2d Cir. 2006)………………………………………….8 McGuire v. Gamache, 5 N.Y.3d 444 (2005)……………………………………………………….8 Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506 (2d Cir. 2005)…………………….3 M.W. v. New York City B’d of Education, 2015 U.S. Dist. LEXIS 112832 (S.D.N.Y. 2015)…..4, 8 Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 4 of 19 v Norbrook Labs. Ltd. v. G.C. Hanford Mfg. Co., 297 F. Supp. 2d 463 (N.D.N.Y. 2003)………….7 People ex.rel. Schneiderman v. Actavis PLLC, 787 F.3d 638 (2d Cir. 2015)………………..3, 4, 8 Pope v. Cnty of Albany, 687 F.3d 567 (2d Cir. 2012)……………………………………………..3 Purcell v. Gonzalez, 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006)……………………………….2 R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.1989)………………………………….5 Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)…………………………..2 Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)……………………………………………………3 Silberberg v. Bd. of Elections of the State of N.Y., 2016 WL 6537691 (S.D.N.Y. 2016)………….2 Stagg P.C. v. U.S. Dep’t of State, 2016 U.S. Dist. LEXIS 8937 (S.D.N.Y. 2016)…………………7 Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27 (2d Cir. 1995)……………………….4 Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964 (2d Cir. 1995)……………………………..7 Valmonte v. Bane, 18 F.3d 992 (2d Cir.1994)…………………………………………………….10 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)………………………………………….3 Statutes 42 U.S.C. §1983…………………………………………………………………………………..1, 9 Federal Rule of Civil Procedure 12(b)(6)………………………………………………………1, 10 N.Y. Elec. Law § 1-104……………………………………………………………………………4 N.Y. Elec. Law §6-140-(1)(b)……………………………………………………………………..8 N.Y. Elec. Law §§6-132(2)………………………………………………………………………..8 N.Y. Elec. Law §§6-144………………………………………………………………………...5, 6 N.Y. Elec. Law §6-154 (1)…………………………………………………………………………6 N.Y. Elec. Law §§6-202…………………………………………………………………………...4 Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 5 of 19 vi N.Y. Elec. Law §§6-204(1)……………………………………………………………………...1, 5 N.Y. Elec. Law 6-206(2)…………………………………………………………………………..1 N.Y. Elec. Law 15-108(3) ………………………………………………………………………1, 5 N.Y. Elec. Law 15-108(9) ………………………………………………………………………...2 N.Y. Elec. Law 15-108(4)…………………………………………………………………………1 U.S. Const. Art. III, § 2……………………………………………………………………………5 Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 6 of 19 1 PRELIMINARY STATEMENT Plaintiffs filed a Summons and Complaint on March 27, 2017, demanding declaratory and injunctive relief and alleging that pursuant to 42 U.S.C. §1983, Defendants violated Plaintiffs’ rights under the First Amendment of the United States Constitution. Specifically, Plaintiffs allege they are prohibited from acting as witnesses to independent nominating petitions in village elections under New York State Election Laws. Plaintiffs’ Complaint challenges N.Y. Elec. Law §§6-204(1), 6- 206(2) 15-108(3) and 15-108(4) as unconstitutional because they infringe upon Plaintiffs’ First Amendment rights to free speech and freedom of association. Specifically, they allege that the portion of these statutes that require that persons who witness party designating petitions and independent nominating petitions to place candidates for village officers on the ballot must be residents of the village for which the candidate is seeking a village public office, should be declared unconstitutional. Based upon the Declaration of Attorney Paquette, and its attached Exhibits “A-E”, and Defendants’ Memorandum of Law, Defendants Peter S. Kosinski, in his official capacity as Co- Chair of the New York State Board of Elections; Douglas A. Kellner, in his official capacity as Co-Chair of the New York State Board of Elections; Andrew J. Spano, in his official capacity as Commissioner of the New York State Board of Elections and Gregory P. Peterson, in his official capacity as Commissioner of the New York State Board of Elections, (“Defendants”) now move for an order denying Plaintiffs’ motion for preliminary injunction, or in the alternative a permanent injunction, and cross-move for an order dismissing Plaintiffs’ Complaint pursuant to Fed R. Civ. P. 12(b)(6), based on Plaintiffs’ failure to state a claim upon which relief can be granted. STATEMENT OF FACTS For a recitation of the relevant procedural history and facts, see Attorney Aimee Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 7 of 19 2 Paquette’s Declaration dated April 10, 2017. ARGUMENT I. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, OR IN THE ALTERNATIVE, A PERMANENT INJUNCTION, SHOULD BE DENIED A. The Court should decline to grant an injunction here because an election is imminent and there is inadequate time to resolve factual disputes As an initial matter, “[w]hen an election is ‘imminent’ and when there is ‘inadequate time to resolve factual disputes' and legal disputes, courts will generally decline to grant an injunction to alter a State's established election procedures.” Silberberg v. Bd. of Elections of the State of N.Y., 2016 WL 6537691, at *6 (S.D.N.Y. 2016)(citing Crookston v. Johnson, 2016 WL 6311623, at *2 (6th Cir. 2016) (quoting Purcell v. Gonzalez, 549 U.S. 1, 5-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam)); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws” and should “endeavor to avoid a disruption of the election process which might result” from the court's decision); Conservative Party of N.Y. State v. N.Y. State Bd. of Elections, 2010 WL 4455867, at *2 (S.D.N.Y. 2010) (denying preliminary injunction where plaintiffs waited until six weeks before an election to file their action citing “the obvious potential for confusion created by a change that would have to be made on such short notice and without adequate training of personnel”). Here, as indicated in Plaintiffs’ Complaint, March 6, 2017, was the first day that individuals could sign a party primary designating petition under N.Y. Elec. Law §15-108(9). See, Dkt. 1, at ¶7. Individuals may begin filing party designating petitions between April 10 and April 17, 2017. Id. The village of North Syracuse and village of Liverpool elections that are the subject of this Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 8 of 19 3 litigation take place on June 20, 2017. Id. at ¶5. Indeed, Plaintiffs waited until the election process was already underway before filing their “emergency motion” seeking relief. Consequently, the subject village elections are clearly “imminent”-in fact the election process has already started- and the Court should decline to grant the injunction sought by Plaintiffs under the case law cited above.1 B. Plaintiffs cannot carry their burden of persuasion for injunctive relief Preliminary injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005). “Where, as here, a party seeks a preliminary injunction against governmental action taken in the public interest pursuant to a statutory scheme, a moving party must demonstrate that (1) he is likely to succeed on the merits of the underlying claim, (2) he will suffer irreparable harm absent injunctive relief, and (3) the public interest weighs in favor of granting the injunction.” Pope v. Cnty of Albany, 687 F.3d 567, 570 (2d Cir. 2012). The Supreme Court has also required the plaintiff to show a fourth factor, that the balance of equities tips in his favor. Id. n. 3, (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); accord Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010). Significantly, the Second Circuit has held the movant to a heightened standard where: (i) an injunction is "mandatory," or (ii) the injunction "will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits." People ex.rel. Schneiderman v. Actavis PLLC, 787 F.3d 638, 650 (2d Cir. 2015)(citing Tom 1 It should be noted that a bill that seeks to remove the challenged witness residency requirement language from the contested N.Y. Elec. Law statutes cited above was presented to, and passed by, both the Assembly and the Senate in the New York State legislature. See, Paquette Dec., Exs. C, D and E. The Governor’s subsequent approval of this bill will render this entire action moot. Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 9 of 19 4 Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). When either condition is met, the movant must show a "clear" or "substantial" likelihood of success on the merits, Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999), and make a "strong showing" of irreparable harm, Doe v. N.Y. Univ., 666 F.2d 761, 773 (2d Cir. 1981), in addition to showing that the preliminary injunction is in the public interest. Actavis, 787 F.3d at 650; M.W. v. New York City B’d of Education, 2015 U.S. Dist. LEXIS 112832, *7 (S.D.N.Y. 2015). 1. Plaintiffs are unlikely to succeed on the merits of the underlying claims Notwithstanding Plaintiffs’ inexcusable delay in filing the instant matter and this motion for preliminary injunctive relief, Plaintiffs cannot show a “clear” or “substantial” likelihood of success on the merits. In their Complaint, Plaintiffs assert that as Independence Party members, they wish to serve as a witness to independent nominating petitions and party designating petitions for candidates in the upcoming June 20, 2017 elections in the villages of North Syracuse and Liverpool. Pursuant to Article 15 and §6-202 of the N.Y. Elec. Law, if a party does not provide for petitioning or primary for a village election, the party nominates a candidate via caucus. A “caucus” is defined as “an open meeting held in a political subdivision to nominate the candidates of a political party for public office to be elected in such subdivision at which all the enrolled voters of such party residing in such subdivision are eligible to vote.” N.Y. Elec. Law § 1-104 (McKinney). The Rules of the New York State Committee of the Independence Party (“Party Rules”) have no provision that allows for individuals to petition for the designation of a candidate or primary for village elections. (See, Paquette Dec., Ex. A, Article 6). Similarly, the Rules of the Onondaga County Independence Interim County Organization (“Onondaga County Rules”) do not provide for petitioning or primaries for village elections. (See, Paquette Dec., Ex. B, Section VII). Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 10 of 19 5 Accordingly, under the above cited N.Y. Elec. Law, the Party Rules and the Onondaga County Rules, the party must nominate a candidate by caucus-not via collection of petition signatures. Accordingly, “[f]ederal judicial power extends only to actual cases and controversies; federal courts are without jurisdiction to decide abstract or hypothetical questions law.” E.I. Dupont de Nemours & Co. v. Invista B.V., 473 F.3d 44, 46-47 (2d Cir. 2006)(citing U.S. Const. Art. III, § 2); see also, R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 105-06 (2d Cir.1989). Here, there is no actual case or controversy for this Court to decide because under the very rules of the Party, Plaintiffs could not witness designating petitions for the Independence Party even if the witness residency requirements did not exist. Stated another way, under the current Party Rules and Onondaga County Rules, there is no basis for Plaintiffs to oppose N.Y. Elec. Law §§6-204 (1) or 15-108 (3) because there are no designating petitions that could under any circumstances be eligible to be circulated for the Independence Party for those contests. Indeed, for designating petitioning to be available for these village contests, the Independence Party would actually need to modify its own rules. Moreover, while Plaintiffs allege that Defendants “have prevented Plaintiffs from exercising their ‘core political speech’ rights guaranteed under the First Amendment” (Dkt. 1, ¶75), Plaintiffs fail to set forth any evidence in their Complaint that these particular Defendants have ever, or will in the future, actually seek to enforce any witness residency requirements under the existing N.Y. Elec. Law. Indeed, the New York State Board of Elections (i.e. the Commissioners) does not receive for filing any village petition and therefore does not rule on their validity, as that function is reserved to either the local board of election or the village clerk who receives the petitions. Indeed, under N.Y. Elec. Law §6-144, petitions and certificates of nomination are filed, unless an exception applies, “in the office of the board of elections of the Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 11 of 19 6 county” (emphasis added). See, N.Y. Elec. Law §6-144. For a village with an election conducted by the board of elections, this rule applies. Accordingly, nominating documents for the Village of North Syracuse would be filed with the Onondaga County Board of Elections. For the Village of Liverpool, which conducts its own elections, the statute provides an exception -- petitions and certificates are filed with the clerk of the village. Id. A ballot access document so filed are “presumptively valid if it is in the proper form and appears to bear the requisite number of signatures…” N.Y. Elec. Law §6-154 (1). Significantly, if an objection is brought, it must be “filed with the officer or board with whom the original petition or certificate is filed.” Id. “Each such officer or board is hereby empowered to make rules in reference to the filing and disposition of such petition, certificate, objections and specifications.” Id. The board of elections or the officer with whom the petition is filed rules on the validity of the document, and if a party is aggrieved by the determination, they may bring a proceeding in state Supreme Court. See, e.g., Election Law §§16-100 et seq. Ultimately, there is no intervening administrative ballot access remedy whereby a determination of a local board of elections or officer (Village Clerk) is reviewed by the State Board of Elections. The local board or officer’s determination is the final administrative determination and is only reviewable in a court proceeding. Consequently, having no role to play in determining the validity of any signature on village nominating or designating petition, the New York State Board of Elections is not a proper party to the litigation. 2. Plaintiffs have not demonstrated they will suffer irreparable harm Firstly, Plaintiffs’ undue delay in bringing suit weakens their claim of irreparable harm. “Delay in seeking a preliminary injunction can weaken a claim of irreparable harm because ‘the failure to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 12 of 19 7 preliminary relief.’” Environmental Services, Inc. v. Recycle Green Services, Inc., 7 F. Supp. 3d 260, 279 (E.D.N.Y 2014) (quoting Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995); see also, FC Online Marketing, Inc. v. Burke’s Martial Arts, LLC, 2015 U.S. Dist. LEXIS 89415, at *82 (E.D.N.Y. 2015) (“In assessing irreparable harm, courts should generally consider any undue delay by the plaintiff in seeking the preliminary injunction”)(collecting cases). Here, Plaintiffs undue delay in moving for injunctive relief-and the disruption such relief would cause to the election process already underway-are important factors in the weighing of the equities among the parties and the public interest. If those factors favor Defendants, as they do here, preliminary injunctive relief must be denied, notwithstanding irreparable harm or even likelihood of ultimate success. See, Stagg P.C. v. U.S. Dep’t of State, 2016 U.S. Dist. LEXIS 8937, at *11-12 (S.D.N.Y. 2016) (despite demonstrated irreparable harm from First Amendment violation, and even assuming a substantial likelihood of success, “the balance of the equities and the public interest both require denial of this preliminary injunction”). Regardless of Plaintiffs’ undue delay in bringing the instant motion, Plaintiffs have not even identified any specific candidates whose petitions they seek to witness. When demonstrating the irreparable harm prong, “[t]he mere possibility of harm is not sufficient as the harm must be imminent and the movant must show that he is likely to suffer irreparable harm if equitable relief is denied.” Norbrook Labs. Ltd. v. G.C. Hanford Mfg. Co., 297 F. Supp. 2d 463, 492 (N.D.N.Y. 2003), aff'd, 126 F. App'x 507 (2d Cir. 2005)(citing JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990). The mere possibility that Plaintiffs’ First Amendment rights would be infringed upon by the subject N.Y. Elec. Law statutes, if they attempt to witness presently unknown candidates’ petitions at some point in time, is simply not sufficient to demonstrate irreparable harm. Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 13 of 19 8 Nevertheless, as discussed above, because neither the Party Rules nor the Onondaga County rules provide for petitioning for a village election, the Independence Party must nominate candidates by caucus. Therefore, there is no likelihood of any harm to Plaintiffs and they certainly have not demonstrated a “strong showing” of irreparable harm if their preliminary injunction is not granted, as required by Doe, supra; Actavis, supra; and M.W. v. New York City B’d of Education, supra. Lastly, Plaintiffs have not and cannot show they will be subjected to “irreparable harm” by the New York State Board of Elections’ Defendants themselves for the reasons stated above, i.e. the New York State Board of Elections Defendants have no role to play in determining the validity of any signature on village nominating or designating petition. As an aside, Plaintiffs cite case law in their Complaint and in their motion for injunctive relief that they contend are applicable to the instant matter and mandate that the N.Y. Elec. Law provisions at issue in this case be deemed unconstitutional. For example, Plaintiffs argue that similar to the instant matter, in Lerman v. Bd. of Elections, 232 F.3d 135 (2d Cir. 2006), N.Y. Elec. Law §6-132(2) was declared unconstitutional; in Chou v. New York State Bd. of Elections, 332 F.Supp.2d 510 (E.D.N.Y. 2004), the Court declared unconstitutional N.Y. Elec. Law §6-140- (1)(b); in LaBrake v. Dukes, 96 N.Y.2d 913 (2001), the Court of Appeals held that the witness residency requirement of N.Y. Elec. Law §6-132(2) violated First Amendment free speech rights; in McGuire v. Gamache, 5 N.Y.3d 444 (2005), the Court of Appeals held that N.Y. Elec. Law §6- 140(1)(b) violated Plaintiffs’ First Amendment rights based on its witness residency requirement. However, these cases are easily distinguishable from the instant matter. In fact, in both Lerman and its progeny cited above, the Plaintiffs that sought declaratory and injunctive relief under the First Amendment were either candidates themselves who commenced the action or witnesses who named a specific candidate whose petitions they wished to witness in an upcoming Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 14 of 19 9 election. Here, Plaintiffs are neither candidates themselves nor have they identified a specific candidate whose petitions they seek to witness. Regardless, it is clear from the case law cited above and the bill approved by both the New York State Assembly and Senate, that the New York State Legislature has recognized that such witness residency requirements are unenforceable. 3. Public interest does not favor granting the injunction Here, Plaintiffs have not and cannot show that the public interest favors granting the requested injunctive relief. Indeed, as discussed above, because neither the Party Rules nor the Onondaga County rules provide for petitioning for a village election, the Independence Party must nominate candidates by caucus, making the necessity for Plaintiffs to witness any petitions for the village elections moot. Consequently, no public interest is served by granting the injunction. 4. The balance of equities does not tip in Plaintiffs’ favor For the reasons stated above, the balance of equities simply does not tip in Plaintiffs’ favor. Plaintiffs’ lack of a case or controversy to even be heard by this Court and the complete lack of the mere possibility of any demonstrable irreparable harm certainly weighs in favor of Defendants. Based on the reasons stated above, Plaintiffs’ motion for preliminary injunction, or in the alternative, a permanent injunction, should be denied. II. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CAUSE OF ACTION Plaintiffs’ Complaint alleges that pursuant to 42 U.S.C. §1983, their First Amendment rights are violated as a result of the subject N.Y. Elec. Law statutes that prohibit Plaintiffs from witnessing independent nominating petitions and party designating petitions in village elections. Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 15 of 19 10 Specifically, Plaintiffs allege that their right to free speech and association is abridged by the witness residency requirements of those statutes. Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Jackson v. Onondaga County, 549 F.Supp.2d 204, 211 (N.D.N.Y. 2008); Fed.R.Civ.P. 12(b)(6). When addressing a motion to dismiss under this Rule, the Court accepts as true all of the factual allegations in the complaint and draws inferences from those allegations in the light most favorable to the plaintiff. Jaufman v. Levine, 2007 WL 2891987, at *5 (N.D.N.Y. 2007)(citing Albright v. Oliver, 510 U.S. 266, 268 (1994)). Dismissal is proper only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., (citing Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994)). “The court’s function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). In order “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 16 of 19 11 between possibility and plausibility of “entitlement to relief.”’ Id. (quoting Twombly, 550 U.S. at 557). Here, for the same reasons discussed above in opposition to Plaintiffs’ motion for a preliminary injunction, or in the alternative a permanent injunction, Plaintiffs’ Complaint should be dismissed in its entirety, with prejudice, for failure to state a claim for which relief may be granted. CONCLUSION WHEREFORE, based upon the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’ motion for a preliminary injunction, or in the alternative a permanent injunction and grant their motion to dismiss Plaintiffs’ Complaint in its entirety, with prejudice, and for other and further relief as the Court deems just and proper. Dated: April 10, 2017 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Kosinski, Kellner, Spano and Peterson 615 Erie Blvd. West, Suite 102 Syracuse, New York 13204 By: ___/s__________ Aimee Paquette, Esq. Assistant Attorney General Bar Roll No. 516178 Telephone: (315) 448-4800 Fax: (315) 448-4853 Email: aimee.paquette@ag.ny.gov Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 17 of 19 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________ MATTHEW PARISH, THOMAS JACCARINO, TOM CONNOLLY, and THE INDEPENDENCE PARTY OF NEW YORK, Plaintiffs, -against- 5:17-CV-344 (BKS/DEP) PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections; GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections; DUSTIN M. CZARNY, in his official capacity as Commissioner of the Onondaga County Board of Elections; MICHELE L. SARDO, in her official capacity as Commissioner of the Onondaga County Board of Elections; DIANNE KUFEL, in her official capacity as Clerk of the Village of North Syracuse; MARY ELLEN SIMS, in her official capacity as Clerk of the Village of Liverpool, Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that on April 10, 2017, she filed Defendants PETER S. KOSINSKI, in his official capacity as Co-Chair of the New York State Board of Elections; DOUGLAS A. KELLNER, in his official capacity as Co-Chair of the New York State Board of Elections; ANDREW J. SPANO, in his official capacity as Commissioner of the New York State Board of Elections and GREGORY P. PETERSON, in his official capacity as Commissioner of the New York State Board of Elections (“Defendants”) Notice of Motion; Attorney Declaration, with attached Exhibits “A-E”; and Memorandum of Law, by electronically filing with the Clerk of the Court herein, which is understood to have sent notification of such filing electronically to the following: Timothy J. Lambrecht Attorney for Plaintiffs Wladis Law Firm, P.C. Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 18 of 19 13 P.O. Box 245 Syracuse, NY 13214 John E. Heisler , Jr. Attorney for Defendants Michele Sardo and Dustin Czarny Onondaga County Department of Law John H. Mulroy Civic Center 421 Montgomery Street, 10th Floor Syracuse, NY 13202 Elizabeth A. Hoffman Attorney for Defendant Mary Ellen Sims Costello, Cooney Law Firm - Syracuse Office 500 Plum Street - Suite 300 Syracuse, NY 13204 John R. Langey Attorney for Defendant Mary Ellen Sims Costello, Cooney Law Firm - Syracuse Office 500 Plum Street - Suite 300 Syracuse, NY 13204 Dated: April 10, 2017 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Kosinski, Kellner, Spano and Peterson 615 Erie Blvd. West, Suite 102 Syracuse, New York 13204 By: ___/s______________ Aimee Paquette, Esq. Assistant Attorney General Bar Roll No. 516178 Telephone: (315) 448-4800 Fax: (315) 448-4853 Email: aimee.paquette@ag.ny.gov Case 5:17-cv-00344-BKS-DEP Document 23-7 Filed 04/10/17 Page 19 of 19
