Court and opposing counsel on June 18, 2002 at 9:00 a.m. for the
purpose of scheduling a date for the trial of this action.
IT IS SO ORDERED.
*fn2 Specifically, Plaintiffs seek an order establishing that all of
them were entitled to vote in the May 18, 1999, June 2, 1999, and May
16, 2000 elections and that, additionally, Plaintiff Mullens was entitled
to vote in the March 28, 2001 and May 15, 2001 elections and in all
future elections. In addition, Plaintiffs seek an order enjoining
Defendants from further preventing Plaintiff Mullens from voting.
*fn3 Although § 2037 provides that the Commissioner's decision is
final, case law indicates that a petitioner may appeal an adverse
decision of the Commissioner to a court for a determination of whether
the Commissioner's actions were arbitrary or without rational basis. Cf.
Application of Colson, 285 A.D. 797, 798 (3d Dep't 1955).
*fn4 The Taylor case is particularly significant because it involves the
very same elections as those at issue here.
*fn5 In the case of Plaintiff Mullins, there is also an issue as to
whether he was a resident of the District for the thirty days immediately
preceding the March 28 and May 15, 2001 District elections.
*fn6 In 2001, the circumstances of five of the six Plaintiffs changed.
The Dills sent a letter to the Board of Registration, stating that they
now had a STAR exemption on their property in Lake Pleasant. In response
to that letter, the Board of Registration confirmed with the Lake
Pleasant assessor that the Dills, in fact, obtained a STAR exemption on
their Lake Pleasant property. The Board of Registration then determined
that the Dills had provided proof of residency in the District and
reinstated them to the District's voter registration books. Similarly,
the Borlands provided the Board of Registration with a copy of their
school tax bill indicating that they had a STAR exemption on their Lake
Pleasant property for the fiscal year July 1, 2000 through June 30,
2001. Thereafter, the Board of Registration reinstated the Borlands to
the District's voter registration books. Since they were reinstated,
Robert Dill, Susan Dill, Leslie Borland, Jr., and Judith Borland cast
absentee ballots in the March 28, 2001 District referendum related to the
new school building. Lauren Dill received an absentee ballot but did not
correctly complete it. She is, however, currently a qualified voter in
*fn7 In their Reply Memorandum of Law, Defendants assert that after the
Dills' qualifications were challenged in May 1999, the Board of
Registration sent them a request for documentation of their residency.
Lauren Dill did not respond. Robert and Susan Dill submitted the
following documentation: a copy of one vehicle registration with an
address in the District, copies of their Hamilton County Board of
Election cards, Susan Dill's pistol permit with an address in the
District, Robert Dill's driver's license with an address in the
District, and Susan Dill's driver's license with an address outside the
District. The Dills admitted that they filed their tax returns from Mount
Similarly, on May 17, 2000, following the challenge of the Dills'
affidavit ballots, the Board of Registration sent a letter to the Dills
requesting that they provide the Board of Registration with proof the
their residency in the District by May 23, 2000. Since the Dills did not
submit any information to the Board of Registration before the May 23,
2000 deadline, the challenges were sustained.
After the Borlands' qualifications to vote were challenged at the June
2, 1999 election, the Board of Registration sent them a request for
documentation of their residency. In response, the Borlands sent the
following documentation: a copy of a notification from the Hamilton
County Board of Elections that their voter enrollment had been approved
and a copy of their drivers' licenses with a Lake Placid address
scratched out and a Lake Pleasant address hand-written in. They also
provided a copy of a letter to the Lake Placid and Lake Pleasant Assessors
regarding their desire to change their STAR and Alternative Veterans' tax
exemptions for the year 2000. There was also information that as of May
5, 1999, Judith Borland's STAR and Alternative Veterans' tax exemptions
were on her Lake Placid property.
On May 17, 2000, following the challenge to the Borlands' affidavit
ballots, the Board of Registration sent a letter to the Borlands
requesting that they provide the Board of Registration with proof of
their residency in the District by May 23, 2000. In response, the
Borlands mailed a derogatory and sarcastic letter and provided a copy of
the same Hamilton County Board of Elections notice they had previously
submitted. Accordingly, the challenges to their ballots were sustained.
John Mullens never submitted any information to the Board of Registration
to establish his residency in the District. The only information
available to the Board of Registration when it made its determination
relative to Mr. Mullens' absentee ballot application and affidavit ballot
was the absentee ballot application itself, which stated that Mr. Mullens
resided in Clifton Partk, the STAR exemption he took in Clifton Park, and
the personal observations of Mrs. Morrison who, in addition to being a
member of the Board of Registration, was a neighbor of Mr. Mullen in Lake
*fn8 In response to Defendants' motion for summary judgment, each
Plaintiff submitted an affidavit setting forth, among other things,
information that they contend demonstrates that they were residents of
the District in 1999. However, they do not assert that the Board of
Registration possessed all of this information at the time it determined
that they were not qualified to vote in the District.
*fn9 As Judge Kaufman explained in Powell,
Were we to embrace plaintiffs' theory [that willful or
knowing conduct is not required to state a claim under
§ 1983], this court would henceforth be thrust into
the details of virtually every election, tinkering with
the state's election machinery, reviewing petitions,
registration cards, vote tallies, and certificates of
election for all manner of error and insufficiency under
state and federal law. Absent a clear and unambiguous
mandate from Congress, we are not inclined to undertake
such a wholesale expansion of our jurisdiction into an
area which, with certain narrow and well defined
exceptions, has been in the exclusive cognizance of the
Powell, 436 F.2d at 86 (footnote omitted) (quoted in Gold, 101 F.3d at