The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Plaintiffs William M. Hoblock, candidate for Albany County
Legislator for the 26th District, and Lee R. Carman,
candidate for Albany County Legislator for the 29th District,
and seven named voters representing other voters similarly
situated, brought this action pursuant to 42 U.S.C. § 1983,
alleging a violation of their Fourteenth Amendment rights by
Defendant Albany County Board of Elections' ("Board") refusal to
tally their absentee ballots. Plaintiffs are moving for a
preliminary injunction to prevent the Board from tallying the
ballots and certifying the winners of the elections without
including the contested absentee ballots. The November 4, 2003 elections for members of the Albany County
Legislature were enjoined by the District Court because the
legislative districts violated the voting rights of the minority
population. Arbor Hill Concerned Citizens Neighborhood Ass'n v.
County of Albany, 281 F. Supp. 2d 436 (N.D.N.Y. 2003) (Mordue,
J.). Pursuant to the Second Circuit's decision in Arbor Hill
Concerned Citizens v. County of Albany, 357 F.3d 260 (2d Cir.
2004), which ordered a special primary and general election, on
remand the District Court outlined the procedures to be used in
those elections. The District Court's order required the Board,
inter alia, to send absentee ballots for the special primary
election to any voter who had filed an application for an
absentee ballot for either the 2003 primary or general election.
The order also stated that the process for obtaining and counting
absentee ballots for the special general election would be in
accordance with Article 8 of the New York Election Law. However,
Article 8 requires a voter to file an application requesting an
absentee ballot to qualify to cast an absentee vote. In a
bipartisan decision, the Board interpreted the District Court's
order to allow it to issue absentee ballots for the special
general election to all voters who had filed an application for
an absentee ballot for the cancelled November 4, 2003 election.
There was no objection to this decision until after the special
general election on April 27, 2004.
Twenty-seven voters, including the seven named Plaintiff voters
in this case, were issued absentee ballots by the Board, which
they used to vote in the April 2004 election and which were
subsequently invalidated.*fn2 Each absentee ballot requires
that the voter reaffirm that he or she continues to be qualified
to vote in the district by absentee ballot. The elections in the 26th and 29th County Legislative
Districts were very close; without tallying the disputed ballots,
fewer than 5 votes separated the candidates in each contest. On
May 5, 2004, the Board convened to count the absentee and paper
ballots, in the presence of counsel for the four candidates.
Counsel for the candidates objected to various absentee ballots
(including the 27 at issue in this action), and the Board agreed
not to open the absentee ballots until the state court could rule
on them. The candidates then filed cross-motions in the New York
State Supreme Court. The Plaintiff voters were not a party to
that action. The Supreme Court, while noting that there was no
allegation of fraud or intentional misconduct, ruled that the
Board's actions resulted from a misinterpretation of the District
Court's order, and therefore the absentee ballots at issue were
not in compliance and should not be tallied. The Appellate
Division and the New York Court of Appeals affirmed the decision.
The Court of Appeals (also noting the lack of fraud or
intentional misconduct) determined that the District Court order
required compliance with Article 8 of New York State election
law, and that automatically sending absentee ballots to those who
had not filed a separate application for the April 27, 2004
special general election was in violation of Article 8. The Court
of Appeals did not address any federal constitutional issues in
The Plaintiffs filed this action on October 19, 2004, alleging
that by not tallying the absentee ballots, the Board has violated
the Plaintiffs' Fourteenth Amendment rights of Due Process and
Equal Protection. Because the Board was prepared to certify a
winner and destroy the absentee ballots without tallying them at
10:00 AM on Wednesday, October 20, 2004, Plaintiffs
simultaneously filed a motion for a temporary restraining order
("T.R.O.") and preliminary injunction. The Court granted the
request for a T.R.O., prohibiting destruction of the ballots and
certification of the winners, until the time when a hearing could
be held on the request for a preliminary injunction. In their motion for a preliminary
injunction, Plaintiffs seek to enjoin the Board from tallying any
ballots or certifying any winner in the elections for Albany
County Legislator for the 26th and 29th Districts,
pending a judgment by this Court.
A. Subject Matter Jurisdiction
Although Defendants do not raise this issue, the Court must
first determine whether it has subject matter jurisdiction over
the claims in this action. The Rooker-Feldman doctrine holds
that lower federal courts "lack subject matter jurisdiction `over
cases that effectively seek review of judgments of state courts
and that federal review, if any, can occur only by way of
certiori petition to the Supreme Court.'" Phifer v. City of New
York, 289 F.3d 49, 55 (2d Cir. 2002) (citing Moccio v. New York
State Office of Court Admin., 95 F.3d 195, 198 (2d Cir. 1996)).
In Rooker, the Supreme Court held that "no federal court, other
than the Supreme Court, can consider a claim to reverse or modify
a state court judgment." Phifer, 289 F.3d at 55 (citing Rooker
v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)). Further, if a
plaintiff's claims are "`inextricably intertwined' with the state
court's determination, the district court [does] not have
jurisdiction to entertain those claims." Phifer, 289 F.3d at 55
(citing District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983)).
The Second Circuit has instructed that the Rooker-Feldman
doctrine does not bar claims that "were never presented in the
state court proceedings" and in which "the plaintiff did not have
an opportunity to present the claims in those proceedings."
Phifer, 289 F.3d at 55-56 (citing Moccio, 95 F.3d at 198-99).
The Second Circuit explained in Moccio that "inextricably
intertwined" means that "where a federal plaintiff had an
opportunity to litigate a claim in a state proceeding, . . . subsequent litigation will be barred under the Rooker-Feldman
doctrine if it would be barred under the principles of
preclusion." Phifer, 289 F.3d at 56 (citing Moccio,
95 F.3d at 199-200). Therefore, two categories of preclusion, collateral
estoppel and res judicata, must be considered. Phifer,
289 F.3d at 56.
Collateral estoppel only applies if "`(1) the issue in question
was actually and necessarily decided in a prior proceeding, and
(2) the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the first
proceeding.'" Phifer, 289 F.3d at 56 (citing Moccio,
95 F.3d at 200). The first requirement for the application of collateral
estoppel is not satisfied. The issue of whether the invalidation
of the absentee ballots would violate the Fourteenth Amendment
was not addressed by the Court of Appeals. Further, the Plaintiff
voters clearly did not have a full and fair opportunity to
litigate any issue in the state court proceeding as they were not
parties to that action. Therefore, collateral estoppel would not
act as a bar to Plaintiffs in this case.
Res judicata bars "parties and their privies from relitigating
issues that were or could have been raised in that action."
Storey v. Cello Holdings, LLC, 347 F.3d 370, 380 (2d Cir. 2003)
(citations omitted). Defendants assert that the rights of the
voters were fully addressed in the action before the Court of
Appeals. However, the Plaintiff voters were not parties to the
action, nor were they privies. Though the candidates, who were
parties in the state action, have an interest in having the
absentee ballots counted, that interest is insufficient to create
privity. "Candidates' rights, though related to voters' rights,
are said to be distinct from them." Griffin v. Burns,
570 F.2d 1065, 1072 (1st Cir. 1978) (citing Bullock v. Carter,
405 U.S. 134, 142-43 (1972)). Because they were not parties nor in
privity to any party in the state court action, res judicata
cannot apply to bar the Plaintiff voters' § 1983 action.
Therefore, this Court has subject matter jurisdiction over the
cause of action by the Plaintiff voters.
The Plaintiff candidates, however, were parties to the state
court action, and they are asserting claims here that they could
have asserted in state court. Further, the Plaintiff candidates'
federal cause of action arises from the Board's refusal to count
the absentee ballots, which is the same factual basis underlying
the state court proceedings. Therefore, the federal cause of
action arises from the same transaction or series of transactions
at issue in the state court proceedings, which causes it to be
barred by res judicata. See, e.g., Cieszkowska v. Gray Line
New York, 295 F.3d 204, 205 (2d Cir. 2002) ("[e]ven claims based
upon different legal theories are barred provided they arise from
the same transaction or occurrence").
Finally, the Plaintiff candidates contend that because they
reserved their federal rights in the state court proceeding, that
Rooker-Feldman should not apply, citing England v. L.A. State
Bd. of Med. Exam'rs, 375 U.S. 411 (1964). In England, the
Supreme Court allowed plaintiffs to reserve their federal claims
in a state court action and avoid preclusion when the federal
court abstained pursuant to R.R. Comm'n v. Pullman Co.,
312 U.S. 496 (1941). However, the Second Circuit has limited the
holding of England to Pullman abstention cases. See,
e.g., Temple of Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 182
(2d Cir. 1991). In Temple of Lost Sheep, the Second Circuit
reasoned that the decision in England "is a direct result of
the purposes behind Pullman abstention" which is merely to
postpone jurisdiction when the federal claim is brought to
federal court in the first instance. Id. (citing Allen v.
McCurry, 449 U.S. 90, 101-02 (1980)). The purposes behind
Pullman abstention are not present in this case, and therefore
England is inapposite.
Therefore, the action against Defendants by Plaintiff
candidates Hoblock and Carman is dismissed for lack of subject matter jurisdiction.*fn3 Any
claims they may have must be addressed directly to the United
States Supreme Court, pursuant to 28 ...