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Douglas v. Niagara County Board of Elections

October 16, 2007

NORTON J. DOUGLAS, PLAINTIFF,
v.
NIAGARA COUNTY BOARD OF ELECTIONS, SCOTT P. KIEDROWSKI, NANCY SMITH. INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS COMMISSIONERS OF THE NIAGARA COUNTY BOARD OF ELECTIONS MICHAEL W. RIMMEN , DEFENDANTS.



The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

DECISION AND ORDER

INTRODUCTION

Plaintiff Norton J. Douglas filed a Democratic designation petition to be placed on the primary ballot for the office of Mayor of the City of Niagara Falls, New York. On August 16, 2007, the Niagara County Board of Elections ("BOE") invalidated his petition upon finding an insufficient number of valid signatures. Plaintiff commenced a special proceeding in New York State Supreme Court which was later dismissed on procedural grounds. Plaintiff then commenced this proceeding in federal court against the BOE, Commissioners Scott P. Kiedrowski and Nancy Smith, and Michael W. Rimmen, Chair of the Niagara County Democratic Party, alleging that his due process rights were violated when the BOE failed to provide him with notice and an opportunity to be heard before ruling his petition invalid. Along with the complaint, plaintiff filed a motion for a preliminary injunction seeking either a re-run of the Democratic primary election or placement on the general ballot on November 6, 2007.

The defendants filed a motion to dismiss the complaint. On October 5 and 6, 2007, the Court held a hearing on the plaintiff's motion for injunctive relief. Upon hearing testimony and upon review of the pleadings and briefs in this case, the Court denies the plaintiff's motion for injunctive relief and grants the motion to dismiss. The Court finds that the plaintiff lacks a property or liberty interest in his candidacy for Mayor of Niagara Falls. Further, even if a property or liberty interest existed, the availability of an expedited special proceeding in New York State Court to challenge the BOE's determination provided the plaintiff with sufficient opportunity to be heard before he was denied the opportunity to be placed on the primary ballot on September 18, 2007.

FINDINGS OF FACTS

The following constitutes the Court's findings of fact based upon the testimony at the hearing. Plaintiff sought to obtain the Democratic Party nomination for Mayor of the City of Niagara Falls, New York. Plaintiff filed a designation petition seeking to be placed on the September 18, 2007 Democratic primary ballot. The petition was received by the BOE on July 23, 2007. Under New York State Election Law, any voter registered to vote for the office sought has three days from the day the petition is filed to make objections. See NYS Elec. Law § 6-154(2). On July 25, 2007, defendant Michael Rimmen, a registered voter and Chair of the Niagara County Democratic Party, filed timely objections to the plaintiff's petition. Under that same statute, Rimmen then had six days to file "specifications" to those objections (i.e., identify the specific reasons for each objection). Id. Rimmen timely filed his specifications on July 31, 2007.

On August 2, 2007, plaintiff received notice from the BOE that objections had been filed to his petition. The notice did not include the specifications or identify the name of the objecting party. The notice did not state when the objections would be considered or provide the plaintiff with any information as to how he could respond to the objections.

On August 16, 2007, the BOE held a hearing on the objections to determine their validity. Defendant Rimman, the objector, attended the hearing but the plaintiff did not. Rimman testified that he had learned of the hearing date by contacting the BOE in advance. Plaintiff made no effort to contact the BOE before August 16, 2007 and therefore was unaware of the hearing date. At the hearing, the BOE determined that 294 of the challenged signatures were invalid, leaving plaintiff eight signatures short of the number required to be placed on the ballot.

Plaintiff received notice of the BOE's determination on Friday, August 17, 2007. He contacted the BOE that day at approximately 4:30 p.m. to obtain a copy of the objections and specifications. Plaintiff spoke with BOE employee Lori Allen and requested a copy, but when it was determined that the plaintiff could not get to the BOE office before closing at 5:00 p.m., Allen advised plaintiff that a copy would be available for him to pick up first thing Monday morning. Plaintiff arrived at the BOE office on Monday, August 20th and received a copy of the objections and specifications.

On August 21, 2001, plaintiff sought to "cure" the problems with his petition by providing the BOE with eight additional signatures. That same day, plaintiff, acting pro se, commenced a proceeding in New York State Supreme Court pursuant to NYS Elec. Law § 6-102(2). The following day, August 22, 2007, the plaintiff provided the BOE with four more signatures in a further effort to "cure" his petition. Plaintiff served notice of the special proceeding on the BOE on August 23, 2007.

The BOE moved to dismiss the special proceeding on the ground that the proceeding was not properly commenced and because plaintiff had failed to name a necessary party (Rimmen -- the objector). On September 4, 2007, a hearing was held in New York State Supreme Court. Plaintiff was represented by counsel at the hearing. New York State Supreme Court Justice Frank Caruso ruled that the special proceeding was defective for failure to name objector Rimmen as a necessary party and issued an order of dismissal following the hearing. Plaintiff was served with that order before leaving the courtroom.

Plaintiff did not appeal from the dismissal of his special proceeding. Instead, plaintiff waited approximately two weeks before commencing this action on September 17, 2007. The next day, September 18th (and the date of the primary election), plaintiff moved for injunctive relief seeking to have his name placed on the September 18th ballot. Recognizing that such relief was impracticable due to the timing of his request, plaintiff alternatively sought an order from this Court either mandating a re-run of the primary election, or placing his name on the ballot for the general election on November 6, 2007.

An expedited hearing was held on October 4 and 5, 2007. Upon the Court's request, supplemental briefing was filed on October 9, 2007. The Court heard argument from counsel on October 11, ...


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