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8/4/2019 Board of Elections suit
1/23
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF DUTCHESS-----------------------------------------------------------------------------XIn the Matter of an Article 78 Proceeding
FRANCES A. KNAPP, ORDER TO SHOW CAUSEAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.
-against-
ERIK J. HAIGHT,As Dutchess County Republican Elections Commissioner
Respondent.----------------------------------------------------------------------------X
Upon reading and filing the attached Petition of Frances A. Knapp, the Dutchess County
Democratic Elections Commissioner, verified on the 30 th day of September, 2011, the
Affirmation of Gilbert J. West Sr, Esq. sworn to on the 30th day of September, 2011, and all
proceedings heretofore had herein, all of which are attached hereto,
LET THE RESPONDENT herein show cause before the Term of this Court to be held
in and for the County of Dutchess at the Courthouse located at 10 Market Street, Poughkeepsie,
New York on the _______ day of _______________, 2011 at ______ oclock in the
_____noon of that day or as soon thereafter as counsel may be heard, why a judgment should not
be made directing the Respondent Erik J. Haight be permanently restrained, whether through
individual action and through directives to staff members under his control, and through
directives to others as the Dutchess County Republican Elections Commissioner, Unilateral
action including but not limited to:
A. Sending mailing to voters on his own stationary, advising permanent absentee votersthat they were required to fill out a new application for such ballot,
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B. Taking addresses where multiple people are registered, allegedly working inconjunction with the Dutchess County Republican County Committee and
Republican County Committee people to challenge the voter registrations. Then
having members of the Republican Staff prepare challenges to the registered voters.
Then having republicans alone challenge the voter registration, rather than bringing it
to a bipartisan challenge of a democrat and a republican and obtaining majority vote
to proceed on such inquiry,
C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being challenged,
and that a Sheriff may come to their door,
D. Unilaterally spending over $1,100 of county tax dollars on postage to carry out hisactions,
E. Taking original absentee applications into his private office under his control withouta bi-partisan presence and marking notations on voters original applications not
agreed by the Democratic Commissioner,
F. Refusing to provide the Democratic Commissioner with all copies of any voterletters, forms, correspondence to the county sheriffs office related to his unilateral
actions,
G. Requiring absentee applicants to show Identification.together with paying the Petitioners attorney fees and costs and with such other and further relief
as to this Court may seems just and proper, it is further
ORDERED, that pending a hearing on this matter that Erik J. Haight, whether through
individual action and through directives to staff members under his control, and through
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directives to others as the Dutchess County Republican Elections Commissioner, be temporarily
restrained from: Unilateral action including but not limited to:
A. Sending mailing to voters on his own stationary, advising permanent absentee votersthat they were required to fill out a new application for such ballot,
B. Taking addresses where multiple people are registered, allegedly working inconjunction with the Dutchess County Republican County Committee and
Republican County Committee people to challenge the voter registrations. Then
having members of the Republican Staff prepare challenges to the registered voters.
Then having republicans alone challenge the voter registration, rather than bringing it
to a bipartisan challenge of a democrat and a republican and obtaining majority vote
to proceed on such inquiry,
C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being challenged,
and that a Sheriff may come to their door,
D. Unilaterally spending over $1,100 of county tax dollars on postage to carry out hisactions,
E. Taking original absentee applications into his private office under his control withouta bi-partisan presence and marking notations on voters original applications not
agreed by the Democratic Commissioner,
F. Refusing to provide the Democratic Commissioner with all copies of any voterletters, forms, correspondence to the county sheriffs office related to his unilateral
actions,
G. Requiring absentee applicants to show Identification.
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ORDERED, that sufficient cause appearing therefore, let service of a copy of this Order
together with supporting papers upon the Respondent above named by delivering a copy of the
same addressed to Erik J. Haight at his office deliverable to himself or any republican staff
member currently working, located at the Dutchess County Board of Elections located at 47
Cannon Street, Poughkeepsie, NY 12601, on or before the _____day of ________, 2011 be
deemed sufficient service thereof, and it is further
ORDERED, that answering affidavits, if any, must be submitted by the Respondent to
the attorney for the Petitioner on or before the _____ day of ___________, 2011 and reply
affidavits replying to any answering affidavits must be submitted by the attorney for the
Petitioner to the answering Respondent or Respondents attorney on or before the ____ day of
_________, 2011.
DATED:________________ E N T E R
_______________________J.S.C.
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF DUTCHESS-----------------------------------------------------------------------------XIn the Matter of an Article 78 Proceeding
FRANCES A. KNAPP, VERIFIED PETITIONAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.
-against-
ERIK J. HAIGHT,As Dutchess County Republican Elections Commissioner
Respondent.----------------------------------------------------------------------------X
The Verified Petition of FRANCES A. KNAPP, on personal knowledge or information
and belief affirms the following to be true, under the penalties of perjury, and respectfully shows
to the Court the following:
INTRODUCTION
1. This is an Article 78 Proceeding brought to challenge the illegal, unilateral acts ofDutchess County Republican Elections Commissioner, Erik J. Haight, by which he in his role of
Republic Elections Commissioner sent mailing to voters on his own stationary, advising
permanent absentee voters that they were required to fill out a new application for such ballot.
This letter was sent out on Dutchess County Board of Elections stationary, with only
Respondents name and signature. Such letter failed to have Petitioners name, nor was it done
with Petitioners knowledge, consent nor legally required majority action.
2. Additionally, Republican Elections Commissioner is acting in an illegal unilateral
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fashion by taking addresses where multiple people are registered, allegedly working in
conjunction with the Republican County Committee members to challenge voter registrations.
Commissioner Haight is next unilaterally having members of the Republican Staff prepare
challenges to the registered voters. Next Commissioner Haight has republicans alone challenge
the voter registration, rather than bringing it to a bipartisan challenge of a democrat and a
republican.
3. Next Commissioner Haight had the Republican town of Washington Committee sendout a unilateral letter to advise the voters, that their voter registration was being challenged, and
that a Sheriff may come to their door, to not be alarmed. Consequently, Commissioner Haight
through the Sheriffs office, generated reports that significantly cast doubt as to whether ornot
these individuals will be able to vote. There is a serious risk of voter purging should these
unilateral actions continue. Additionally, Commissioner Haight fails to provide the Democratic
Commissioner with all copies of any voter letters, forms, correspondence to the county sheriffs
office related to his unilateral actions.
4. Additionally, Commissioner Haight is egregiously misusing Board of Electionsmoney, and consequently tax payers money. The unilateral actions as just described, required
Commissioner Haight to spend over $1,100 of postage to send out such unilateral, non bi-
partisan mailings. Court intervention is required to halt such misappropriation of tax payers
dollars.
5. Lastly, Commissioner Haight is acting unilaterally in review of absentee applications.When one arrives into the Dutchess County Board of Elections he takes it into his office without
a bi-partisan presence, marking it with notations on the voters original application not agreed to
by the Democratic Commissioner. Additionally, if Respondent or his Deputy are not in, then the
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Voter must wait until he returns for fear of application denial. Under New York State Election
Law, such unilateral action cannot stand. One commissioner, when there are two within the
Board, cannot reject an absentee application. A majority vote can only invalidate an application,
as New York sides with the voter in that instance. Additionally, voters that come in for an
absentee application, Commissioner Haight requires them to show Identification, which is a
unilateral act, and invalid on its own under Election Law.
PARTIES
6. Petitioner, Frances A. Knapp, is the Dutchess County Democratic ElectionsCommissioner.
7. Respondent, Erik J. Haight, is the Dutchess County Republican ElectionsCommissioner.
JURISDICTION
8. This Court has jurisdiction over the proceeding pursuant to Civil Practice Laws andRules 7803.
BACKGROUND
9. Petitioner, Frances A. Knapp, is the Dutchess County Democratic ElectionsCommissioner. Erik J. Haight, is the Dutchess County Republican Elections Commissioner.
Jointly, they are tasked with the responsibility of making documents and information
conveniently available. They additionally, are tasked with the responsibility of ensuring each and
every vote is counted, the legitimacy of the ability to vote, and subsequent voting results.
10.Inherent in a democratic form of government, that truly lets the voice of the people be
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heard is a checks and balance system. This ensures a voice, a vote and equality to all registered
voters in Dutchess County. Hence, the Elections Commissioners are held to the requirement of
Subdivision 2 of section 3-212 of the Election Law in that: All actions of the board shall require
a majority vote of the commissioners prescribed by law for such board.
11.For too long, Commissioner Haight has unilaterally acted, putting the future voiceand vote of the people at risk. For too long Commissioner Haight has displayed a pattern of
secrecy, when the law requires transparency. For too long Commissioner Haight has unilaterally
targeted valid voters and directed his staff members in a non bi-partisan format to challenge such
voters. If his actions dont stop, such valid voters run the risk of being silenced. For too long,
Commissioner Haight has misused Board of Election funds, to pay for postage, to further his
unilateral acts. These unilateral acts cannot continue.
12.Frances A. Knapp, has pursued every action possible, to prevent litigation, but herattempts have been futile. Commissioner Haight will not cease his unilateral ways. Court action
is the only means necessary for Commissioner Knapp to ensure, Commissioner Haights
unilateral ways cease, and the voters of Dutchess County keep their constitutionally protected
voice. The two Memos Commissioner Knapp has sent to Commissioner Haight, were
disregarded and not responded to.
THE RESPONDENTS ACTIONS ARE ILLEGAL
13. Subdivision 2 of section 3-212 of the Election Law provides: All actions of theboard shall require a majority vote of the commissioners prescribed by law for such board.
14.On or about August 2011, Petitioner was advised by her staff that mail was beingreturned to the Dutchess County Board of Elections. Upon opening of one of such letters,
Petitioner was shocked to see that Commissioner Haight unilaterally was mailing letters to
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permanent absentee voters, on his own advising that they needed to update their absentee ballot
application. (See Exhibit 1). The fact that Commissioner Haight sent this letter out violated 3-
212(2). In addition Commissioner Haight violated Election Law, as permanent absentee ballots
are not required to be updated. It is clear that Commissioner Haight is hopeful that an absentee
voter, accidentally fills out the form incorrectly, making the voter ineligible to vote.
Commissioner Haight is acting unilaterally illegally with a secondary goal of suppressing votes.
15.On or about August 2011, Petitioner discovered that Commissioner Haight was actingin violation of 3-212(2) by unilaterally directing investigation and subsequent challengers to
voters in Millbrook, N.Y. (See Exhibit 2) Additionally, Commissioner Haight acted as a
Witness, as well as an additional republican staff member and City of Beacon Republican Chair,
Andrew Forman. Such challenge does not have the legally required bi-partisan witnessing.
Legally required would be a party member of both Republican and Democrat affiliation to
review, initial and sign off on such voter challenge. In all of these 34 challenges the challenger
was Republican, and both witnesses were Republican, one of which was the Respondent. Such
action in having all republicans, and no democrats witness such post registration challenge
affidavit, violates 3-212(2) of New York State Election Law. Such act required a majority,
which it failed to do, and such action was unilateral and illegal in nature.
16.On or about August 2011, Petitioner discovered that Commissioner Haight was actingin violation of 3-212(2) by unilaterally directing investigation and subsequent challengers to
voters in Poughkeepsie, N.Y., at the Family Partnership center. (See Exhibit 3). The Family
Partnership center, typically is utilized for the homeless and those in need of services. Homeless
people, have a constitutional right to vote. Additionally, Commissioner Haight acted as Witness,
as well as an additional republican Catherine F. Durland, who happens to be the Town of Union
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Vale Republican Chair. Such challenge does not have the legally required bi-partisan witnessing.
Legally required would be a party member of both Republican and Democrat affiliation to
review, initial and sign off on such voter challenge. In all of these nearly 70 challenges the
challenger was Republican, and both witnesses were Republican, one of which was the
Respondent. Such action in having all republicans, and no democrats witness such post
registration challenge affidavit, violates 3-212(2) of New York State Election Law. Such act
required a majority, which it failed to do, and such action was unilateral and illegal in nature.
17.The unilateral action in witnessing voter challenges doesnt stop there. Egregiously itcontinued, when Petitioner on or about August 2011 discovered Respondents involvement in
challenges to 270 Main Street, Poughkeepsie, N.Y. As seen in (Exhibit 4), a Dutchess County
Board of Elections, summary voter master list was generated. Such list was generated as shown
in the top left corner on August 18, 2011 at 6:38 p.m. Such time is well after the Board of
Elections closed. Upon information and belief Petitioner believes the handwriting to be that of
the Deputy to the Respondent. The very next day a Republican Anita Cillo a City of
Poughkeepsie Republican Committee woman entered the Board of Election and filed a voter
challenge.
18.Such voter challenge by Anita Cillo is yet another example of Commissioner Haightacting in violation of 3-212(2) by unilaterally directing investigation and subsequent challenges
to voters in Poughkeepsie, N.Y., at the 270 Main Street, Poughkeepsie, New York address.
Commissioner Haight acting as Witness, as well as an additional republican Catherine F.
Durland, the Town of Union Vale Republican Chair, does not have the legally required bi-
partisan witnessing. Legally required would be a party member of both Republican and
Democrat affiliation to review, initial and sign off on such voter challenge. In all of these nearly
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30 challenges the challenger was Republican, and both witnesses were Republican, one of which
was the Respondent. Such action in having all republicans, and no democrats witness such post
registration challenge affidavit, violates 3-212(2) of New York State Election Law. Such act
required a majority, which it failed to do, and such action was unilateral and illegal in nature.
19.Additionally Respondent is in violation of New York State Election Law 3-212(2)when an absentee voter application comes into the Board of Elections Respondent takes such
application into his office and reviews it behind closed doors, without a Democratic staff
member or the Democratic Commissioners consent. Additionally, when Respondent or his
deputy are not at the Board of Elections Respondent has advised his staff members to not issue
an application. Both actions are impressible unilateral action. A bi-partisan review is required by
election law. Such review by Respondent violates that provision. Additionally, Respondent is
impermissibly acting under the directive that he and his staff can reject an absentee application.
Election law clearly sides with the voter in absentee challenges in that 1 commissioner cannot
reject an absentee application, two commissioners or a majority in this case are required to reject
such absentee application. Respondents unwillingness to conduct a bi-partisan review, directive
to see Identification for an absentee application, and directive to not issue an application unless
he is present, are all illegal unilateral actions, that if not stopped will result in voter suppression.
20.Petitioner has in her possession (See Exhibit 5), receipts of exorbitant postage fees,paid by the Dutchess County Board of Elections, that were used by Respondent to facilitate his
unilateral actions. Such postage fees on illegal activities must cease in order to safeguard Board
of Elections budget, and taxpayers money.
21.Petitioner has attempted to cure the Respondents actions by sending
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Memorandums to the Respondent. (See Exhibit 6). Because Respondent failed to cure his
behavior, and failed to respond to such Memorandum, Petitioner has no other alternative but to
institute legal action.
22.That the Petitioner has no other remedy at law or in equity, and no previousapplication for the relief herein sought or similar relief has been made.
23. WHEREFORE, Petitioner respectfully request that this Court issue an orderdirecting that the Respondent Erik J. Haight, Dutchess County Republican Elections
Commissioner be permanently restrained from: Unilateral action including but not limited to:
A.
Sending mailing to voters on his own stationary, advising permanent absentee
voters that they were required to fill out a new application for such ballot,
B. Taking addresses where multiple people are registered, allegedly working inconjunction with the Dutchess County Republican County Committee and
Republican County Committee people to challenge the voter registrations. Then
having members of the Republican Staff prepare challenges to the registered voters.
Then having republicans alone challenge the voter registration, rather than bringing
it to a bipartisan challenge of a democrat and a republican and obtaining majority
vote to proceed on such inquiry,
C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being
challenged, and that a Sheriff may come to their door,
D. Unilaterally spending over $1,100 of county tax dollars on postage to carry out hisactions,
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E. Taking original absentee applications into his private office under his controlwithout a bi-partisan presence and marking notations on voters original
applications not agreed by the Democratic Commissioner,
F. Refusing to provide the Democratic Commissioner with all copies of any voterletters, forms, correspondence to the county sheriffs office related to his unilateral
actions,
G. Requiring absentee applicants to show Identification. And,the payment of Petitioners attorney fees and further relief as this Court may seem just and
proper, including but not limited to continued jurisdiction over this matter for a timeframe to be
determined by the court in the event the Respondent refuses to cease his unilateral actions.
Dated: September ____, 2011Poughkeepsie, NY
_________________________________Frances A. KnappDutchess County Elections Commissioner
Sworn before me this ____ day of September 2011
______________________Notary Public
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF DUTCHESS-----------------------------------------------------------------------------XIn the Matter of an Article 78 Proceeding
FRANCES A. KNAPP, ATTORNEY AFFIRMATIONAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.
-against-
ERIK J. HAIGHT,As Dutchess County Republican Elections Commissioner
Respondent.----------------------------------------------------------------------------X
Gilbert J. West, Sr. an attorney duly licensed to practice law before the courts of the State
of New York, hereby affirms the following to be true under the penalties of perjury and says:
1. I am the attorney for Petitioner, Frances A. Knapp, and as such I am fully familiar withthe facts and circumstances of this case.
2. The dispute arises as a result of the Respondent engaging in a pattern of unilateralactivities. Such unilateral activities include: Sending mailing to voters on his own stationary,
advising permanent absentee voters that they were required to fill out a new application for such
ballot. Additionally, Respondent engaged in taking addresses where multiple people are
registered, and worked in conjunction with the Republican County Committee Members to
challenge voter registrations. Respondent allegedly had republicans alone challenge the voter
registration, rather than bringing it to a bipartisan challenge of a democrat and a republican all
without a majority vote to pursue such investigation.
3. Additionally, Respondent had a Republican Town of Washington Committee member
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and Republican staff members send out a unilateral letter to advise the voters, that their voter
registration was being challenged, and that a Sheriff may come to their door. Respondent refused
to provide the Democratic Commissioner with all copies of any voter letters, forms,
correspondence to the county sheriffs office related to his unilateral actions. Respondent also
spent excessive postage to send out such unilateral, non bi-partisan mailings. Respondent, has
also been unilaterally requiring absentee applicants to show identification when requesting an
application, and requiring himself or his deputy be present when submitting such application.
4. The instant Article 78 Proceeding seeks a Court order permanently enjoining theRespondent, from individually or through directives as the Dutchess County Republican
Elections Commissioner from illegally engaging in unilateral actions. Election law clearly
prohibits unilateral actions an Elections Commissioner, when there are two present in the Board
of Elections. When there are two Elections Commissioners, a majority vote is required to take
action. Commissioner Haights unilateral acts are illegal on their face, and if not stopped could
lead to the secondary consequence of voter suppression.
PETITIONER HAS CAPACITY AND STANDING TO BRING SUIT
5. Capacity concerns a litigants power to appear and bring its grievance before the court.Silver v. Pataki, 730 N.Y.S. 2d 482 (2001). Capacity to sue may be expressly granted in enabling
legislation or it may be inferred from review of the entitys statutory functions or responsibilities.
Graziano v. County of Albany, 3 N.Y. 3d 475, 479 (NY Court of Appeals, 2004).
6. Standing involves a determination of whether the party seeking relief has a sufficientlycognizable stake in the outcome so as to cast the dispute in a form traditionally capable of
judicial resolution. Manhattan v. Schaffer, 84 N.Y.2d 148 (1994). A plaintiff must show injury in
fact, that the plaintiff will actually be harmed by the challenged action. Next, the plaintiff must
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fall within the zone of interests or concerns sought to be promoted or protected by the statutory
provision under which the agency has acted. Nurse Anesthetists v. Novello, 2 N.Y. 3d 207
(2004).
7. Pursuant to Election Law 3-204, Elections Commissioners are appointed by the countylegislative body based on certificates of party recommendation filed by the chairman or secretary
of the county committee of the appropriate political party. Such commissioner performs two
distinct statutory functions, he assists his co-commissioner in the administration of the Board and
he safeguards the equal representation rights of his party. Graziano at 480.
8.
A Commissioner while suing to safeguard the equal representation rights of his party has
capacity to sue. Supra. Petitioners capacity to sue to vindicate political interests grounded in the
language of the Constitution and the Election Law is inherent in petitioners unique role as
guardian of the rights of his party and must be implied from the constitutional and statutory
requirement of equal representation. Supra. This right ensures an appropriate balance required
for a fair administration of elections.
9. When a bipartisan balance is not maintained, the public interest is affected. A concreteinjury is suffered by the political party. When a commissioner files a claim to assure equal
representation on behalf of his or her political party, Election Law 3-212(2) is not implicated. Id.
at 481. Allowing unilateral action by Respondent would result in unequal representation on the
Board, by not having a bi-partisan review of petitions, ballots, letters and challenges. These
injuries are representative of a created unequal political representation, stating an injury in fact
that satisfies the standing prong.
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RESPONDENT MUST BE TEMPORARILY RESTRAINED FROM UNILATERAL
ACTIVITY
10.To be entitled to a preliminary injunction, the moving party has the burden ofdemonstrating (1) a likelihood of success on the merits, (2) irreparable injury absent granting the
preliminary injunction, and (3) a balancing of the equities in the movant's favor(see CPLR 6301;
Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Coinmach Corp. v Alley Pond Owners Corp., 25
AD3d 642, 643). The purpose of a preliminary injunction is to maintain the status quo and
prevent the dissipation of property that could render a judgment ineffectual. Ruiz v. Meloney, 26
AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604.
11.Petitioner will adequately show in the paragraphs to follow, that there is a strong chanceof likelihood on the merits, given the clear multiple violations of Election Law 3-212(2).
Additionally, Respondent failing to cease such unilateral activities could potentially subject to
large amounts of voter suppression, if his unilateral challenges, and secrecy arent immediately
stopped. Lastly, Respondent will not be harmed if his unilateral actions are ordered to stop,
pending the litigation of this matter. Should the Court deny the ultimate application of the
Petitioner, Respondent has sufficient time prior to the General Election for further investigation.
RESPONDENTS UNILATERAL ACTIONS VIOLATE ELECTION LAW
12.The object of elections is to ascertain the popular will and not to thwart it. The object ofelection laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory
regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical
obstructions to make the right of voting insecure and difficult. Hirsh v. Wood, 148 NY 142.
13.The intent that Boards of Elections shall be bipartisan and when composed of two
http://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_01476.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_01476.htmhttp://www.nycourts.gov/reporter/3dseries/2004/2004_06490.htmhttp://www.nycourts.gov/reporter/3dseries/2004/2004_06490.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_01476.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_01476.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htmhttp://www.nycourts.gov/reporter/3dseries/2006/2006_00469.htm8/4/2019 Board of Elections suit
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persons one shall be designated from each of the two most popular political parties, is revealed
by the Constitution and legislation under N.Y. Const., art II, 8; Election Law 30 subd.1.,
Conlin v. Kisiel, 35 A.D. 2d 423.
14.The court will intervene at times to settle a controversy at the Board of Elections, as thecourt will determine the controversy to prevent a complete breakdown of the public service
performed by the Board of Elections, and the consequent disfranchisement of the voters. Ahern
v. Board of Supervisors, 7 A.D. 2d 538.
15.All Board actions require a majority vote, Election Law 3-212(2), Matter of Bridghamv. Tutunjian, 84 AD2d 853, Lenihan v. Blackwell, 209 A.D. 2d 1048, Edwards v. Paterson, 715
F. Supp. 2d 431 (2010). Accordingly, a county board of elections, that has only two election
commissioners, requires unanimity to take any action. Buhlmann v. Wilson, 96 Misc. 2d 616
(1978).
14. Sending mailing to voters on his own stationary, advising permanent absentee voters that
they were required to fill out a new application for such ballot, is clearly an action by the Board.
Commissioner Haight failed to obtain majority vote, and approval making such conduct an
impermissible unilateral action. Such unilateral action has in fact caused responding voters, fear
that their vote will be suppressed. (See Exhibit 7).
15. It is constitutionally permissible for a board of elections to subject categories of people
likely to include transients to an additional level of inquiry pursuant to Election Law Section 5-
104(2). Section 5-104 does not require boards of elections to administer such additional
inquiries. The statute merely lists a number of factors which a board may consider. In order for
a board to initiate an additional form of inquiry, it must affirmatively decide to do so by majority
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vote of the commissioners. Williams v. Salerno, 792 F.2d 323, 329 (US Court of Appeals, 2nd
Circuit 1986.)
15. Williams v. Salerno, clears dictates that the actions performed by Respondent in the
Town of Millbrook, The Family Partnership Center, and at the Address referred to as the Thrifty
cash checking center shall be declared an abuse of power. Election Law 5-104(2), suggests an
additional inquiry may be considered by the Board. This additional inquiry is not required,
therefore ordering such inquiry would constitute an Action by the Board. Clearly stated in
Election Law 312-2(2), any Board action requires majority vote. Commissioner Haight acted
unilaterally in such additional inquiry by either proceeding with such action without
Commissioner Knapps consent, or knowledge. Such action must be declared invalid by this
honorable court as it violates the law.
16. Respondent sending mailing to voters on his own stationary, advising permanent
absentee voters that they were required to fill out a new application for such ballot is egregious
unilateral action, violating Election Law 3-212(2). Such action not only is unilateral, but
deceptive as well. Such action was not authorized through a majority vote, in fact such letters
were not even provided for the Democratic Commissioner to review.
17. Taking addresses where multiple people are registered, working in conjunction with
the Dutchess County Republican County Committee and Republican County Committee people
to challenge the voter registrations and having members of the Republican Staff prepare
challenges to the registered voters, then having republicans alone challenge the voter registration,
rather than bringing it to a bipartisan challenge of a democrat and a republican and obtaining
majority vote to proceed on such inquiry all violate Election Law 3-212(2). Such unilateral
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actions by the Respondent, failed to seek and obtain a majority vote. Without a majority,
Respondent was not authorized to act.
18. Having a Republican Town of Washington Committee or any Republican staff
member, or Republican County committee member send out a unilateral letter to advise the
voters, that their voter registration was being challenged, and that a Sheriff may come to their
door violate Election Law 3-212(2). Such challenges are actions by the Board, requiring
Majority vote. Making matters worse the Respondent refused to provide the Democratic
Commissioner with all copies of any voter letters, forms, and correspondence to the county
Sherriffs office. All attempts to hide his unilateral activities.
19. Unilaterally spending over $1,100 of county tax dollars on postage in violation
Election Law 3-212(2), to carry out his actions is an egregious abuse of power by the
Respondent and must be stopped by this Honorable Court to preserve tax payer money.
Additionally, this Honorable Court shall direct that the County not pay these bills for mailing, as
it is the Respondents responsibility.
20. Equally disturbing is the Respondent taking original absentee applications into his
private office under his control without a bi-partisan presence and marking notations on voters
original applications not agreed by the Democratic Commissioner, and requiring absentee
applicants to show identification, both of which are actions, requiring a majority vote, and
without one violate Election Law 3-212(2).
COURT SHALL DIRECT THE PAYING OF PETITIONERS ATTORNEY FEES
21. The Second Department has consistently upheld awards of attorney fees in election
law proceedings brought by a commissioner(s) and against commissioner(s). Matter of Board of
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Elections of the County of Westchester v. ORourke, 210 A.D. 2d 402 (2ndDept 1994). Such
case law dictates that an award of counsel fees is appropriate when the county attorney cannot
represent the Board of Elections and the lawsuit is a result of a commissioner acting within his or
her official duties. This was also addressed in Hill v. County of Sullivan, 14 A.D.3d 744 (3rd
Dept 2005). This Court noted counsel fees are appropriate when outside counsel is hired to
represent one election commissioner. Specifically, the criteria for an award of attorney fees is
triggered when a commissioner, as a municipal officer is acting within his implied authority to
employ counsel in the good faith prosecution or defense of an action undertaken in the public
interest, and in conjunction with his official duties where the municipal attorney refused to act,
or was incapable of or was disqualified from, acting. Id at 746, quoting Cahn v. Town of
Huntington, 29 N.Y.2d 451. Additionally, the court noted that a lack of success on the merits
does not necessarily preclude an award of fees.
22. It is clear that the County Attorney of Dutchess County, the normal Attorney to
represent a member of the Board of Elections, cannot represent an Elections Commissioner
against another Elections Commissioner as it would present an impermissible conflict. Petitioner
was required to hire outside counsel. The undersigned petitions the court for the payment of
attorney fees by the County of Dutchess, pending a fee application, detailing services provided,
and approved by this honorable Court.
WHEREFORE, Petitioner respectfully request that this Court issue an order
directing that the Respondent Erik J. Haight, Dutchess County Republican Elections
Commissioner be permanently restrained from: Unilateral action including but not limited to:
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A. Sending mailing to voters on his own stationary, advising permanent absenteevoters that they were required to fill out a new application for such ballot,
B. Taking addresses where multiple people are registered, allegedly working inconjunction with the Dutchess County Republican County Committee and
Republican County Committee people to challenge the voter registrations. Then
having members of the Republican Staff prepare challenges to the registered voters.
Then having republicans alone challenge the voter registration, rather than bringing
it to a bipartisan challenge of a democrat and a republican and obtaining majority
vote to proceed on such inquiry,
C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being
challenged, and that a Sheriff may come to their door,
D. Unilaterally spending over $1,100 of county tax dollars on postage to carry out hisactions,
E. Taking original absentee applications into his private office under his controlwithout a bi-partisan presence and marking notations on voters original
applications not agreed by the Democratic Commissioner,
F. Refusing to provide the Democratic Commissioner with all copies of any voterletters, forms, correspondence to the county sheriffs office related to his unilateral
actions,
G. Requiring absentee applicants to show Identification. And,
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the payment of Petitioners attorney fees and further relief as this Court may seem just and
proper, including but not limited to continued jurisdiction over this matter for a timeframe to be
determined by the court in the event the Respondent refuses to cease his unilateral actions.
Dated: September ____, 2011Poughkeepsie, NY
_________________________________GILBERT J. WEST SR.ATTORNEY FOR PETITIONERP.O. BOX 284249 MAIN STREETPOUGHKEEPSIE, N.Y. 12602845-452-5100