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HIRSCHFELD v. SPANAKOS

December 20, 1994

ABRAHAM HIRSCHFELD, et ano., Plaintiffs, against GEORGE SPANAKOS, et al., individually and in their capacity as members of the Board of Elections of the City of New York, et. ano., Defendants.


The opinion of the court was delivered by: LEWIS A. KAPLAN

 KAPLAN, District Judge.

 This Section 1983 action has its genesis in plaintiff Abe Hirschfeld's unsuccessful 1992 campaign for election to the U.S. House of Representatives. Mr. Hirschfeld at that time prevailed in a Section 1983 suit against the Board of Elections and thus required that his name be placed on the ballot. He now sues again, seeking to recover damages for the Board's 1992 actions as well as attorneys' fees for the prior litigation. The matter is before this Court on defendants' motion to dismiss the complaint.

 Facts

 The facts pertinent to this dispute are largely set out in Judge Knapp's opinion granting Mr. Hirschfeld judgment in the prior action and in the opinion of the Court of Appeals affirming that judgment and imposing sanctions on the Board for a frivolous motion in the Court of Appeals. Hirschfeld v. Board of Elections in the City of New York, 799 F. Supp. 394 (S.D.N.Y. 1992), aff'd, 984 F.2d 35 (2d Cir. 1993) ("Hirschfeld I"). We summarize only those facts essential to determination of this motion.

 In August 1992, Mr. Hirschfeld filed independent nominating petitions for his candidacy for the House from the Fourteenth Congressional District for the November 1992 general election. Before leaving the Board's office, he was told that no further formalities were expected of him. On August 28, however, the Board of Elections, pursuant to N.Y. Elec. L. § 6-144 (McKinney 1978), mailed him a notice informing him that the last day to accept or decline the nomination was August 31. Mr. Hirschfeld received the notice on September 1. The Board invalidated his petitions for failure to file the necessary certificate of acceptance by August 31.

 Mr. Hirschfeld thereupon brought suit in this Court under 42 U.S.C. § 1983 against the Board of Elections of the City of New York and its members solely in their official capacities. In an amended complaint, Mr. William Van Luvender, a prospective voter, was added as a plaintiff. Plaintiffs asserted that the Board's action had violated their rights under the First and Fourteenth Amendments. On September 21, Judge Knapp granted their motion to compel the Board to accept the filing of Mr. Hirschfeld's certificate of acceptance nunc pro tunc as of August 31, holding that the Election Law as applied in this instance unconstitutionally burdened Mr. Hirschfeld's access to the ballot. Upon agreement of all parties, final judgment was entered on September 30, 1992.

 The campaign went forward in the ensuing weeks, and the Board allegedly led Mr. Hirschfeld to believe that his name would appear on the ballot. However, on October 28, six days before the general election, the Board filed a notice of appeal and moved in the Second Circuit to stay the order pending appeal. The Court of Appeals denied the motion two days later by summary order.

 Mr. Hirschfeld's name appeared on the general election ballot. He received 2,970 votes out of the total of 227,013 cast, or about one percent of the vote.

 The Complaint

 Despite the fact that Mr. Hirschfeld was the prevailing party in Hirschfeld I, no application for attorneys' fees was made in that action. Instead, he filed this new action sixteen months after the election and nearly fourteen months after the Second Circuit issued its opinion imposing sanctions on the Board.

 The parties named in this complaint overlap, but are not entirely the same as, the parties to the prior action. The plaintiffs here are Mr. Hirschfeld and the Hirschfeld for Congress Citizens Committee. The defendants are the Board of Elections of the City of New York, its current members (who are sued in both their official and individual capacities) and the City of New York. Four of the individual defendants -- Seymore [sic ] Sheldon, Weyman A. Carey, Douglas A. Kellman [sic ], and Paul Meijas -- were not named in Hirschfeld I; they appear to have been appointed to the Board of Elections after the events that gave rise to that action. *fn1"

 The complaint contains eight causes of action. The first and second causes of action contend that the Board's 1992 actions violated defendants' rights under the First and Fourteenth Amendments and the Privileges and Immunities Clause. The third cause of action is for abuse of process. The fourth cause of action seeks to recover Mr. Hirschfeld's attorneys' fees in the prior litigation, as well as unspecified campaign expenses, as compensatory damages on his Section 1983 claim. The fifth cause of action seeks a declaration that the defendants are estopped to relitigate the constitutional issues actually and necessarily decided against them in the prior litigation. The sixth and seventh causes of action both seek recovery of counsel fees from the prior action, the sixth pursuant to 42 U.S.C. § 1988 and the seventh on unspecified and apparently duplicative grounds. The eighth ...


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