The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
In 1992, plaintiff Abe Hirschfeld, a familiar if perennially unsuccessful figure on the New York political scene, ran for Congress against both Democratic and Republican opponents. He secured a place on the ballot in consequence of an injunction issued by this Court against the Board of Elections. The Board of Elections appealed at the eleventh hour, and its motion for a stay pending appeal was denied by the Court of Appeals, which imposed sanctions on the defendants because they had proceeded in disregard of FED. R. App. P. 8(a) and because the Court of Appeals viewed the application as baseless and a bad faith effort to keep Hirschfeld off the ballot. Hirschfeld v. Board of Elections in the City of New York, 799 F. Supp. 394 (S.D.N.Y. 1992) (Knapp, J.), stay denied, 984 F.2d 35 (2d Cir. 1993) ("Hirschfeld I"). Nearly two years later, Hirschfeld and his campaign committee brought this action against individual members of the Board of Elections and the City of New York. The Court already has dismissed much of the complaint in a decision familiarity with which is assumed. Hirschfeld v. Spanakos, 871 F. Supp. 190 (S.D.N.Y. 1994) ("Hirschfeld II"). The matter now is before the Court on the defendants' motion for summary judgment dismissing plaintiffs' remaining claim, that the Board of Elections' motion for a stay of Judge Knapp's injunction was an unconstitutional abuse of process that gives rise to a claim for damages under 42 U.S.C. § 1983 and State law.
At the outset, the Court notes that the papers submitted in support of and in opposition to this motion are ships passing in the night, and each utterly ignores the key issue with which it must deal. The defendants seek dismissal on the basis that (1) the appeal from Judge Knapp's order raised appropriate questions and (2) the individual defendants in any case are protected by qualified immunity. They do not even mention the motion for the stay of the injunction, which is the specific action that the Court of Appeals found objectionable and that is the primary focus of this case. The plaintiffs, for their part, do not even mention the defendants' qualified immunity argument. They simply argue that the Court of Appeals' decision imposing sanctions conclusively establishes, according to principles of former adjudication, the wrongfulness of the defendants' actions. The Court proceeds to the motion.
By way of clearing the underbrush, the defendants move to dismiss as to defendants Meijas, Kellner (sued herein as Kellman), Carey and Sheldon on the ground that they were not members of the Board of Elections at the time complained of and therefore cannot be liable in any event. Plaintiffs do not even respond to defendants' motion on this point. In consequence, defendants Meijas, Kellner, Carey and Sheldon are entitled to summary judgment dismissing the complaint insofar as they are sued in their individual capacities.
This Court previously ruled that the complaint, insofar as it addressed the events after September 30, 1992--the appeal and the motion for a stay--stated a claim upon which relief might be granted because it alleged in substance that the Board's actions were objectively baseless and taken for the improper purpose of interfering with Hirschfeld's campaign. 871 F. Supp. at 195. The defendants now assert that they are entitled to summary judgment because the appeal was not objectively baseless. As noted, they do not address plaintiffs' argument that the stay motion independently violated their rights.
As Hirschfeld I relates, the dispute between Hirschfeld and the Board was sparked by the latter's invalidation of Hirschfeld's nominating petitions because Hirschfeld did not file a certificate of acceptance within the time provided by State law. Judge Knapp subsequently held that the Board's action violated the First Amendment.
The test of whether the Board's appeal, as distinguished from the stay motion, was objectively baseless is whether "no reasonable litigant could realistically expect success on the merits..." Hirschfeld II, 871 F. Supp. at 195 (quoting Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961)). Here, it cannot be said that the appeal itself was objectively baseless. The pertinent State statute clearly voided Hirschfeld's nomination absent timely filing of a certificate of acceptance. N.Y. ELECTION L. § 6-146 (McKinney 1978 & Supp. 1995). The Second Circuit previously had upheld a strict application of this provision. Unity Party v. Wallace, 707 F.2d 59 (2d Cir. 1983). In view of Unity Party, it is impossible to say that the appeal in Hirschfeld I was objectively baseless. In consequence, defendants are entitled to summary judgment dismissing so much of plaintiffs' remaining claim as rests on the appeal itself.
This of course does not dispose of the matter because the principal focus of plaintiffs' remaining claim is the stay motion. As defendants have not even addressed that aspect of the case, and as the Court of Appeals' opinion in Hirschfeld I amply indicates why a trier of fact could find that the stay motion was objectively baseless, that aspect of the motion cannot be granted on the merits.
The remaining individual defendants contend that they are entitled to summary judgment on the ground of qualified immunity insofar as they are sued in their individual capacities. In view of Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), and related cases, they are entitled to dismissal if it was objectively reasonable for them to believe that their alleged action in authorizing the stay motion did not violate Hirschfeld's clearly established rights.