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January 24, 1978

CALVIN WILLIAMS, GILBERTO GERENA VALENTIN, SALVADOR CARTAGENA, MIDGE BROWN, FELIX BERRIOS, and ANTONIO MARTINEZ, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
SALVATORE SCLAFANI, HERBERT J. FEUER, ALICE SACHS, CHARLES A. AVARELLO, ELRICH A. EASTMAN, ELIZABETH A. CASSIDY, MATTEO LUMINA, JOSEPH J. PREVITE, ANTHONY SADOWSKI, and JAMES BASS, Commissioners of the Board of Elections in the City of New York, as Members of, and constituting, the said Board of Elections, Defendants, STATE OF NEW YORK, RAMON S. VELEZ, STEPHEN KAUFMAN, and HON. MARY PINKETT, Intervenor-Defendants

The opinion of the court was delivered by: WARD

WARD, District Judge.

 On November 18, 1977, a three-judge court granted summary judgment for defendants on the Voting Rights Act claim of plaintiffs Gilberto Gerena Valentin ("Valentin") and Felix Berrios ("Berrios") and granted plaintiffs leave to file a second amended complaint adding a § 1983 claim and another plaintiff, Antonio Martinez ("Martinez"). Plaintiffs Valentin, Berrios and Martinez and intervenor-defendant Ramon S. Velez ("Velez") now cross-move for summary judgment on the § 1983 claim. For the reasons hereinafter stated, plaintiffs' motion for summary judgment is granted and Velez' cross-motion is denied.


 When this action was commenced, intervenor-defendant Velez was the Democratic incumbent New York City Councilman representing the 11th Councilmanic District in the South Bronx. He and plaintiff Valentin vied for the Democratic nomination for that position on the November 8, 1977 ballot by running in the primary election held on September 8, 1977. As a prerequisite to placement on the primary ballot, the candidates had to make a minimum showing of voter support. The showing required in this case was 1500 signatures on designating petitions. The period for collecting these signatures was June 7, 1977 to July 7, 1977.

 Sometime prior to the signature-gathering period, plaintiff Valentin communicated with the Board of Elections in the City of New York ("the City Board of Elections" or "City Board") to inquire whether persons registering on the street pursuant to New York's recently enacted mail registration statute, New York Election Law § 153 (McKinney Supp. 1976), could simultaneously sign his designating petitions. It is undisputed that he was informed by Ms. Betty Dolan, Executive Director of the City Board of Elections, that street registrants could validly sign a designating petition so long as the registration was stamped in at the City Board of Elections on or before receipt of the designating petition at the City Board. There is also no dispute that Ms. Dolan was convinced that she was giving the correct interpretation of what was permissible under the new mail registration statute and, accordingly, she consistently gave this advice to whoever inquired about petition-gathering. *fn2" This advice was also given to candidates, including Valentin, by Ms. Beatrice Berger, Chief Clerk of the Bronx Office of the City Board of Elections. *fn3"

 Valentin followed the instructions of the City Board of Elections with respect to simultaneous signing of mail registrations and designating petitions, collected more than the required 1500 signatures, and submitted the designating petitions to the City Board. On August 1, 1977, the City Board by formal resolution validated Valentin's designating petitions over the objection of Velez that the 343 signatures of street registrants should be invalidated because they "signed before registration" ("SBR's").

 A number of suits were thereupon commenced in New York State Supreme Court by various candidates challenging inter alia the validity of SBR's. On or about August 5, 1977 the City Board of Elections changed its position on the validity of SBR's after being advised by the State Board of Elections that its earlier position was erroneous. *fn4" Thereafter, on August 22, 1977, a Justice of the State Supreme Court invalidated the 343 SBR's on Valentin's designating petitions. Velez v. Board of Elections and Valentin, Index No. 14399/77 (Sup. Ct., Bx. Co.). That brought Valentin below the 1500 required signatures; the State Court therefore directed that Valentin's name be removed from the primary ballot. *fn5"

 The State Court's decision regarding the SBR's was based on its adoption of the report of Special Referee Lloyd I. Paperno. That report had concluded that the interpretation of the mail registration statute which Dolan and Berger had been publicly disseminating "would not be binding upon the court in any event inasmuch as they pertain to the interpretation of the statute." *fn6" Similarly, in the related case of Cartagena v. Board of Elections, Index No. 14489/77 (Sup. Ct., Bx. Co.), Justice William P. McCooe concluded, in a decision dated August 22, 1977, that the oral opinion of the Executive Director of the City Board of Elections was of no force and effect for two reasons. First, he concluded that the oral advice was inconsistent with Sections 153(7) *fn7" and 135 *fn8" of the New York Election Law which he construed to require that the signatory actually be enrolled as a voter at the time of signing the designating petition. Second, he concluded that the oral advice, in addition to being wrong, was unauthorized because only the State Board of Elections is authorized to make regulations *fn9" and such regulations have force and effect only when written and filed with the Secretary of State. *fn10"

 On August 25, 1977, the Appellate Division, First Department, unanimously affirmed without opinion the Supreme Court determination. The New York Court of Appeals denied leave to appeal on August 30, 1977. Valentin has filed a notice of appeal to the United States Supreme Court.

 On September 2, 1977, this Court signed a temporary restraining order requiring the City Board to reinstate Valentin on the ballot pending a determination of plaintiffs' motion for a preliminary injunction under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Pursuant to 28 U.S.C. § 2284(b)(3), the temporary restraining order remained in effect until the Voting Rights Act claim was disposed of by the November 18, 1977 three-judge court decision. On November 4, 1977 Velez brought on an order to show cause why the November 8th election should not be stayed pending the disposition by the three-judge court. Believing that the probabilities of success and the equities favored plaintiffs, the Court denied the stay in accordance with an oral decision rendered that date. Four days later, on November 8, 1977, Valentin was elected to the City Council by a landslide. He assumed office on January 1, 1978.


 It is well settled that voting is a fundamental right, Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964), which includes the right to vote in a primary election, Smith v. Allwright, 321 U.S. 649, 660-62, 88 L. Ed. 987, 64 S. Ct. 757 (1944); United States v. Classic, 313 U.S. 299, 318, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941); cf. Bullock v. Carter, 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972), and to have that vote counted, Gray v. Sanders, 372 U.S. 368, 380, 9 L. Ed. 2d 821, 83 S. Ct. 801 (1963); United States v. Classic, supra; cf. Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 25 L. Ed. 2d 45, 90 S. Ct. 791 (1970). A voter has standing to sue for deprivation of that right. Gray v. Sanders, supra 372 U.S. at 375; Griffin v. Burns, 431 F. Supp. 1361, 1363 (D.R.I. 1977) (implied).

 Likewise, the first amendment rights of freedom to associate and to petition for redress of grievances and the concept of liberty in the due process clause of the fourteenth amendment provide candidates with a limited right of access to the ballot. See Smith v. Cherry, 489 F.2d 1098, 1100 (7th Cir. 1973), cert. denied, 417 U.S. 910, 41 L. Ed. 2d 214, 94 S. Ct. 2607 (1974); Briscoe v. Kusper, 435 F.2d 1046, 1052-54 (7th Cir. 1970). Thus, the right to appear on the ballot is integral to the right to vote and must be measured by the same test of constitutionality. See Williams v. Rhodes, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968). Candidates have standing to assert this right. See Smith v. Cherry, supra and Briscoe v. Kusper, supra (implied in both cases).

 Here plaintiffs allege in their second amended complaint that these rights of voters and candidates were abridged without due process in that Valentin justifiably relied on the advice of the City Board of Elections and as a result was affirmatively misled into following an unauthorized method of signature gathering. He was not given notice of the appropriate procedure until after the petition-gathering period had ended. Consequently, he was unconstitutionally denied access to the ballot, and, in turn, the ...

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