Board of Elections suit

8/4/2019 Board of Elections suit

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF DUTCHESS-----------------------------------------------------------------------------XIn the Matter of an Article 78 Proceeding

FRANCES A. KNAPP, ORDER TO SHOW CAUSEAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.

-against-

ERIK J. HAIGHT,As Dutchess County Republican Elections Commissioner

Respondent.----------------------------------------------------------------------------X

Upon reading and filing the attached Petition of Frances A. Knapp, the Dutchess County

Democratic Elections Commissioner, verified on the 30 th day of September, 2011, the

Affirmation of Gilbert J. West Sr, Esq. sworn to on the 30th day of September, 2011, and all

proceedings heretofore had herein, all of which are attached hereto,

LET THE RESPONDENT herein show cause before the Term of this Court to be held

in and for the County of Dutchess at the Courthouse located at 10 Market Street, Poughkeepsie,

New York on the _______ day of _______________, 2011 at ______ oclock in the

_____noon of that day or as soon thereafter as counsel may be heard, why a judgment should not

be made directing the Respondent Erik J. Haight be permanently restrained, whether through

individual action and through directives to staff members under his control, and through

directives to others as the Dutchess County Republican Elections Commissioner, Unilateral

action including but not limited to:

A. Sending mailing to voters on his own stationary, advising permanent absentee votersthat they were required to fill out a new application for such ballot,


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B. Taking addresses where multiple people are registered, allegedly working inconjunction with the Dutchess County Republican County Committee and

Republican County Committee people to challenge the voter registrations. Then

having members of the Republican Staff prepare challenges to the registered voters.

Then having republicans alone challenge the voter registration, rather than bringing it

to a bipartisan challenge of a democrat and a republican and obtaining majority vote

to proceed on such inquiry,

C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being challenged,

and that a Sheriff may come to their door,

D. Unilaterally spending over $1,100 of county tax dollars on postage to carry out hisactions,

E. Taking original absentee applications into his private office under his control withouta bi-partisan presence and marking notations on voters original applications not

agreed by the Democratic Commissioner,

F. Refusing to provide the Democratic Commissioner with all copies of any voterletters, forms, correspondence to the county sheriffs office related to his unilateral

actions,

G. Requiring absentee applicants to show Identification.together with paying the Petitioners attorney fees and costs and with such other and further relief

as to this Court may seems just and proper, it is further

ORDERED, that pending a hearing on this matter that Erik J. Haight, whether through

individual action and through directives to staff members under his control, and through


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directives to others as the Dutchess County Republican Elections Commissioner, be temporarily

restrained from: Unilateral action including but not limited to:

A. Sending mailing to voters on his own stationary, advising permanent absentee votersthat they were required to fill out a new application for such ballot,




Then having republicans alone challenge the voter registration, rather than bringing it

to a bipartisan challenge of a democrat and a republican and obtaining majority vote

to proceed on such inquiry,

C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being challenged,

and that a Sheriff may come to their door,


E. Taking original absentee applications into his private office under his control withouta bi-partisan presence and marking notations on voters original applications not

agreed by the Democratic Commissioner,


actions,

G. Requiring absentee applicants to show Identification.


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ORDERED, that sufficient cause appearing therefore, let service of a copy of this Order

together with supporting papers upon the Respondent above named by delivering a copy of the

same addressed to Erik J. Haight at his office deliverable to himself or any republican staff

member currently working, located at the Dutchess County Board of Elections located at 47

Cannon Street, Poughkeepsie, NY 12601, on or before the _____day of ________, 2011 be

deemed sufficient service thereof, and it is further

ORDERED, that answering affidavits, if any, must be submitted by the Respondent to

the attorney for the Petitioner on or before the _____ day of ___________, 2011 and reply

affidavits replying to any answering affidavits must be submitted by the attorney for the

Petitioner to the answering Respondent or Respondents attorney on or before the ____ day of

_________, 2011.

DATED:________________ E N T E R

_______________________J.S.C.


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FRANCES A. KNAPP, VERIFIED PETITIONAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.

-against-


Respondent.----------------------------------------------------------------------------X

The Verified Petition of FRANCES A. KNAPP, on personal knowledge or information

and belief affirms the following to be true, under the penalties of perjury, and respectfully shows

to the Court the following:

INTRODUCTION

1. This is an Article 78 Proceeding brought to challenge the illegal, unilateral acts ofDutchess County Republican Elections Commissioner, Erik J. Haight, by which he in his role of

Republic Elections Commissioner sent mailing to voters on his own stationary, advising

permanent absentee voters that they were required to fill out a new application for such ballot.

This letter was sent out on Dutchess County Board of Elections stationary, with only

Respondents name and signature. Such letter failed to have Petitioners name, nor was it done

with Petitioners knowledge, consent nor legally required majority action.

2. Additionally, Republican Elections Commissioner is acting in an illegal unilateral


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fashion by taking addresses where multiple people are registered, allegedly working in

conjunction with the Republican County Committee members to challenge voter registrations.

Commissioner Haight is next unilaterally having members of the Republican Staff prepare

challenges to the registered voters. Next Commissioner Haight has republicans alone challenge

the voter registration, rather than bringing it to a bipartisan challenge of a democrat and a

republican.

3. Next Commissioner Haight had the Republican town of Washington Committee sendout a unilateral letter to advise the voters, that their voter registration was being challenged, and

that a Sheriff may come to their door, to not be alarmed. Consequently, Commissioner Haight

through the Sheriffs office, generated reports that significantly cast doubt as to whether ornot

these individuals will be able to vote. There is a serious risk of voter purging should these

unilateral actions continue. Additionally, Commissioner Haight fails to provide the Democratic

Commissioner with all copies of any voter letters, forms, correspondence to the county sheriffs

office related to his unilateral actions.

4. Additionally, Commissioner Haight is egregiously misusing Board of Electionsmoney, and consequently tax payers money. The unilateral actions as just described, required

Commissioner Haight to spend over $1,100 of postage to send out such unilateral, non bi-

partisan mailings. Court intervention is required to halt such misappropriation of tax payers

dollars.

5. Lastly, Commissioner Haight is acting unilaterally in review of absentee applications.When one arrives into the Dutchess County Board of Elections he takes it into his office without

a bi-partisan presence, marking it with notations on the voters original application not agreed to

by the Democratic Commissioner. Additionally, if Respondent or his Deputy are not in, then the


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Voter must wait until he returns for fear of application denial. Under New York State Election

Law, such unilateral action cannot stand. One commissioner, when there are two within the

Board, cannot reject an absentee application. A majority vote can only invalidate an application,

as New York sides with the voter in that instance. Additionally, voters that come in for an

absentee application, Commissioner Haight requires them to show Identification, which is a

unilateral act, and invalid on its own under Election Law.

PARTIES

6. Petitioner, Frances A. Knapp, is the Dutchess County Democratic ElectionsCommissioner.

7. Respondent, Erik J. Haight, is the Dutchess County Republican ElectionsCommissioner.

JURISDICTION

8. This Court has jurisdiction over the proceeding pursuant to Civil Practice Laws andRules 7803.

BACKGROUND

9. Petitioner, Frances A. Knapp, is the Dutchess County Democratic ElectionsCommissioner. Erik J. Haight, is the Dutchess County Republican Elections Commissioner.

Jointly, they are tasked with the responsibility of making documents and information

conveniently available. They additionally, are tasked with the responsibility of ensuring each and

every vote is counted, the legitimacy of the ability to vote, and subsequent voting results.

10.Inherent in a democratic form of government, that truly lets the voice of the people be


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heard is a checks and balance system. This ensures a voice, a vote and equality to all registered

voters in Dutchess County. Hence, the Elections Commissioners are held to the requirement of

Subdivision 2 of section 3-212 of the Election Law in that: All actions of the board shall require

a majority vote of the commissioners prescribed by law for such board.

11.For too long, Commissioner Haight has unilaterally acted, putting the future voiceand vote of the people at risk. For too long Commissioner Haight has displayed a pattern of

secrecy, when the law requires transparency. For too long Commissioner Haight has unilaterally

targeted valid voters and directed his staff members in a non bi-partisan format to challenge such

voters. If his actions dont stop, such valid voters run the risk of being silenced. For too long,

Commissioner Haight has misused Board of Election funds, to pay for postage, to further his

unilateral acts. These unilateral acts cannot continue.

12.Frances A. Knapp, has pursued every action possible, to prevent litigation, but herattempts have been futile. Commissioner Haight will not cease his unilateral ways. Court action

is the only means necessary for Commissioner Knapp to ensure, Commissioner Haights

unilateral ways cease, and the voters of Dutchess County keep their constitutionally protected

voice. The two Memos Commissioner Knapp has sent to Commissioner Haight, were

disregarded and not responded to.

THE RESPONDENTS ACTIONS ARE ILLEGAL

13. Subdivision 2 of section 3-212 of the Election Law provides: All actions of theboard shall require a majority vote of the commissioners prescribed by law for such board.

14.On or about August 2011, Petitioner was advised by her staff that mail was beingreturned to the Dutchess County Board of Elections. Upon opening of one of such letters,

Petitioner was shocked to see that Commissioner Haight unilaterally was mailing letters to


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permanent absentee voters, on his own advising that they needed to update their absentee ballot

application. (See Exhibit 1). The fact that Commissioner Haight sent this letter out violated 3-

212(2). In addition Commissioner Haight violated Election Law, as permanent absentee ballots

are not required to be updated. It is clear that Commissioner Haight is hopeful that an absentee

voter, accidentally fills out the form incorrectly, making the voter ineligible to vote.

Commissioner Haight is acting unilaterally illegally with a secondary goal of suppressing votes.

15.On or about August 2011, Petitioner discovered that Commissioner Haight was actingin violation of 3-212(2) by unilaterally directing investigation and subsequent challengers to

voters in Millbrook, N.Y. (See Exhibit 2) Additionally, Commissioner Haight acted as a

Witness, as well as an additional republican staff member and City of Beacon Republican Chair,

Andrew Forman. Such challenge does not have the legally required bi-partisan witnessing.

Legally required would be a party member of both Republican and Democrat affiliation to

review, initial and sign off on such voter challenge. In all of these 34 challenges the challenger

was Republican, and both witnesses were Republican, one of which was the Respondent. Such

action in having all republicans, and no democrats witness such post registration challenge

affidavit, violates 3-212(2) of New York State Election Law. Such act required a majority,

which it failed to do, and such action was unilateral and illegal in nature.

16.On or about August 2011, Petitioner discovered that Commissioner Haight was actingin violation of 3-212(2) by unilaterally directing investigation and subsequent challengers to

voters in Poughkeepsie, N.Y., at the Family Partnership center. (See Exhibit 3). The Family

Partnership center, typically is utilized for the homeless and those in need of services. Homeless

people, have a constitutional right to vote. Additionally, Commissioner Haight acted as Witness,

as well as an additional republican Catherine F. Durland, who happens to be the Town of Union


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Vale Republican Chair. Such challenge does not have the legally required bi-partisan witnessing.

Legally required would be a party member of both Republican and Democrat affiliation to

review, initial and sign off on such voter challenge. In all of these nearly 70 challenges the

challenger was Republican, and both witnesses were Republican, one of which was the

Respondent. Such action in having all republicans, and no democrats witness such post

registration challenge affidavit, violates 3-212(2) of New York State Election Law. Such act

required a majority, which it failed to do, and such action was unilateral and illegal in nature.

17.The unilateral action in witnessing voter challenges doesnt stop there. Egregiously itcontinued, when Petitioner on or about August 2011 discovered Respondents involvement in

challenges to 270 Main Street, Poughkeepsie, N.Y. As seen in (Exhibit 4), a Dutchess County

Board of Elections, summary voter master list was generated. Such list was generated as shown

in the top left corner on August 18, 2011 at 6:38 p.m. Such time is well after the Board of

Elections closed. Upon information and belief Petitioner believes the handwriting to be that of

the Deputy to the Respondent. The very next day a Republican Anita Cillo a City of

Poughkeepsie Republican Committee woman entered the Board of Election and filed a voter

challenge.

18.Such voter challenge by Anita Cillo is yet another example of Commissioner Haightacting in violation of 3-212(2) by unilaterally directing investigation and subsequent challenges

to voters in Poughkeepsie, N.Y., at the 270 Main Street, Poughkeepsie, New York address.

Commissioner Haight acting as Witness, as well as an additional republican Catherine F.

Durland, the Town of Union Vale Republican Chair, does not have the legally required bi-

partisan witnessing. Legally required would be a party member of both Republican and

Democrat affiliation to review, initial and sign off on such voter challenge. In all of these nearly


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30 challenges the challenger was Republican, and both witnesses were Republican, one of which

was the Respondent. Such action in having all republicans, and no democrats witness such post

registration challenge affidavit, violates 3-212(2) of New York State Election Law. Such act

required a majority, which it failed to do, and such action was unilateral and illegal in nature.

19.Additionally Respondent is in violation of New York State Election Law 3-212(2)when an absentee voter application comes into the Board of Elections Respondent takes such

application into his office and reviews it behind closed doors, without a Democratic staff

member or the Democratic Commissioners consent. Additionally, when Respondent or his

deputy are not at the Board of Elections Respondent has advised his staff members to not issue

an application. Both actions are impressible unilateral action. A bi-partisan review is required by

election law. Such review by Respondent violates that provision. Additionally, Respondent is

impermissibly acting under the directive that he and his staff can reject an absentee application.

Election law clearly sides with the voter in absentee challenges in that 1 commissioner cannot

reject an absentee application, two commissioners or a majority in this case are required to reject

such absentee application. Respondents unwillingness to conduct a bi-partisan review, directive

to see Identification for an absentee application, and directive to not issue an application unless

he is present, are all illegal unilateral actions, that if not stopped will result in voter suppression.

20.Petitioner has in her possession (See Exhibit 5), receipts of exorbitant postage fees,paid by the Dutchess County Board of Elections, that were used by Respondent to facilitate his

unilateral actions. Such postage fees on illegal activities must cease in order to safeguard Board

of Elections budget, and taxpayers money.

21.Petitioner has attempted to cure the Respondents actions by sending


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Memorandums to the Respondent. (See Exhibit 6). Because Respondent failed to cure his

behavior, and failed to respond to such Memorandum, Petitioner has no other alternative but to

institute legal action.

22.That the Petitioner has no other remedy at law or in equity, and no previousapplication for the relief herein sought or similar relief has been made.

23. WHEREFORE, Petitioner respectfully request that this Court issue an orderdirecting that the Respondent Erik J. Haight, Dutchess County Republican Elections

Commissioner be permanently restrained from: Unilateral action including but not limited to:

A.

Sending mailing to voters on his own stationary, advising permanent absentee

voters that they were required to fill out a new application for such ballot,




Then having republicans alone challenge the voter registration, rather than bringing

it to a bipartisan challenge of a democrat and a republican and obtaining majority

vote to proceed on such inquiry,

C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being

challenged, and that a Sheriff may come to their door,



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E. Taking original absentee applications into his private office under his controlwithout a bi-partisan presence and marking notations on voters original

applications not agreed by the Democratic Commissioner,


actions,

G. Requiring absentee applicants to show Identification. And,the payment of Petitioners attorney fees and further relief as this Court may seem just and

proper, including but not limited to continued jurisdiction over this matter for a timeframe to be

determined by the court in the event the Respondent refuses to cease his unilateral actions.

Dated: September ____, 2011Poughkeepsie, NY

_________________________________Frances A. KnappDutchess County Elections Commissioner

Sworn before me this ____ day of September 2011

______________________Notary Public


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FRANCES A. KNAPP, ATTORNEY AFFIRMATIONAs Dutchess County Democratic Elections CommissionerPetitioner, Index No.

-against-


Respondent.----------------------------------------------------------------------------X

Gilbert J. West, Sr. an attorney duly licensed to practice law before the courts of the State

of New York, hereby affirms the following to be true under the penalties of perjury and says:

1. I am the attorney for Petitioner, Frances A. Knapp, and as such I am fully familiar withthe facts and circumstances of this case.

2. The dispute arises as a result of the Respondent engaging in a pattern of unilateralactivities. Such unilateral activities include: Sending mailing to voters on his own stationary,

advising permanent absentee voters that they were required to fill out a new application for such

ballot. Additionally, Respondent engaged in taking addresses where multiple people are

registered, and worked in conjunction with the Republican County Committee Members to

challenge voter registrations. Respondent allegedly had republicans alone challenge the voter

registration, rather than bringing it to a bipartisan challenge of a democrat and a republican all

without a majority vote to pursue such investigation.

3. Additionally, Respondent had a Republican Town of Washington Committee member


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and Republican staff members send out a unilateral letter to advise the voters, that their voter

registration was being challenged, and that a Sheriff may come to their door. Respondent refused

to provide the Democratic Commissioner with all copies of any voter letters, forms,

correspondence to the county sheriffs office related to his unilateral actions. Respondent also

spent excessive postage to send out such unilateral, non bi-partisan mailings. Respondent, has

also been unilaterally requiring absentee applicants to show identification when requesting an

application, and requiring himself or his deputy be present when submitting such application.

4. The instant Article 78 Proceeding seeks a Court order permanently enjoining theRespondent, from individually or through directives as the Dutchess County Republican

Elections Commissioner from illegally engaging in unilateral actions. Election law clearly

prohibits unilateral actions an Elections Commissioner, when there are two present in the Board

of Elections. When there are two Elections Commissioners, a majority vote is required to take

action. Commissioner Haights unilateral acts are illegal on their face, and if not stopped could

lead to the secondary consequence of voter suppression.

PETITIONER HAS CAPACITY AND STANDING TO BRING SUIT

5. Capacity concerns a litigants power to appear and bring its grievance before the court.Silver v. Pataki, 730 N.Y.S. 2d 482 (2001). Capacity to sue may be expressly granted in enabling

legislation or it may be inferred from review of the entitys statutory functions or responsibilities.

Graziano v. County of Albany, 3 N.Y. 3d 475, 479 (NY Court of Appeals, 2004).

6. Standing involves a determination of whether the party seeking relief has a sufficientlycognizable stake in the outcome so as to cast the dispute in a form traditionally capable of

judicial resolution. Manhattan v. Schaffer, 84 N.Y.2d 148 (1994). A plaintiff must show injury in

fact, that the plaintiff will actually be harmed by the challenged action. Next, the plaintiff must


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fall within the zone of interests or concerns sought to be promoted or protected by the statutory

provision under which the agency has acted. Nurse Anesthetists v. Novello, 2 N.Y. 3d 207

(2004).

7. Pursuant to Election Law 3-204, Elections Commissioners are appointed by the countylegislative body based on certificates of party recommendation filed by the chairman or secretary

of the county committee of the appropriate political party. Such commissioner performs two

distinct statutory functions, he assists his co-commissioner in the administration of the Board and

he safeguards the equal representation rights of his party. Graziano at 480.

8.

A Commissioner while suing to safeguard the equal representation rights of his party has

capacity to sue. Supra. Petitioners capacity to sue to vindicate political interests grounded in the

language of the Constitution and the Election Law is inherent in petitioners unique role as

guardian of the rights of his party and must be implied from the constitutional and statutory

requirement of equal representation. Supra. This right ensures an appropriate balance required

for a fair administration of elections.

9. When a bipartisan balance is not maintained, the public interest is affected. A concreteinjury is suffered by the political party. When a commissioner files a claim to assure equal

representation on behalf of his or her political party, Election Law 3-212(2) is not implicated. Id.

at 481. Allowing unilateral action by Respondent would result in unequal representation on the

Board, by not having a bi-partisan review of petitions, ballots, letters and challenges. These

injuries are representative of a created unequal political representation, stating an injury in fact

that satisfies the standing prong.


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RESPONDENT MUST BE TEMPORARILY RESTRAINED FROM UNILATERAL

ACTIVITY

10.To be entitled to a preliminary injunction, the moving party has the burden ofdemonstrating (1) a likelihood of success on the merits, (2) irreparable injury absent granting the

preliminary injunction, and (3) a balancing of the equities in the movant's favor(see CPLR 6301;

Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Coinmach Corp. v Alley Pond Owners Corp., 25

AD3d 642, 643). The purpose of a preliminary injunction is to maintain the status quo and

prevent the dissipation of property that could render a judgment ineffectual. Ruiz v. Meloney, 26

AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604.

11.Petitioner will adequately show in the paragraphs to follow, that there is a strong chanceof likelihood on the merits, given the clear multiple violations of Election Law 3-212(2).

Additionally, Respondent failing to cease such unilateral activities could potentially subject to

large amounts of voter suppression, if his unilateral challenges, and secrecy arent immediately

stopped. Lastly, Respondent will not be harmed if his unilateral actions are ordered to stop,

pending the litigation of this matter. Should the Court deny the ultimate application of the

Petitioner, Respondent has sufficient time prior to the General Election for further investigation.

RESPONDENTS UNILATERAL ACTIONS VIOLATE ELECTION LAW

12.The object of elections is to ascertain the popular will and not to thwart it. The object ofelection laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory

regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical

obstructions to make the right of voting insecure and difficult. Hirsh v. Wood, 148 NY 142.

13.The intent that Boards of Elections shall be bipartisan and when composed of two
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persons one shall be designated from each of the two most popular political parties, is revealed

by the Constitution and legislation under N.Y. Const., art II, 8; Election Law 30 subd.1.,

Conlin v. Kisiel, 35 A.D. 2d 423.

14.The court will intervene at times to settle a controversy at the Board of Elections, as thecourt will determine the controversy to prevent a complete breakdown of the public service

performed by the Board of Elections, and the consequent disfranchisement of the voters. Ahern

v. Board of Supervisors, 7 A.D. 2d 538.

15.All Board actions require a majority vote, Election Law 3-212(2), Matter of Bridghamv. Tutunjian, 84 AD2d 853, Lenihan v. Blackwell, 209 A.D. 2d 1048, Edwards v. Paterson, 715

F. Supp. 2d 431 (2010). Accordingly, a county board of elections, that has only two election

commissioners, requires unanimity to take any action. Buhlmann v. Wilson, 96 Misc. 2d 616

(1978).

14. Sending mailing to voters on his own stationary, advising permanent absentee voters that

they were required to fill out a new application for such ballot, is clearly an action by the Board.

Commissioner Haight failed to obtain majority vote, and approval making such conduct an

impermissible unilateral action. Such unilateral action has in fact caused responding voters, fear

that their vote will be suppressed. (See Exhibit 7).

15. It is constitutionally permissible for a board of elections to subject categories of people

likely to include transients to an additional level of inquiry pursuant to Election Law Section 5-

104(2). Section 5-104 does not require boards of elections to administer such additional

inquiries. The statute merely lists a number of factors which a board may consider. In order for

a board to initiate an additional form of inquiry, it must affirmatively decide to do so by majority


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vote of the commissioners. Williams v. Salerno, 792 F.2d 323, 329 (US Court of Appeals, 2nd

Circuit 1986.)

15. Williams v. Salerno, clears dictates that the actions performed by Respondent in the

Town of Millbrook, The Family Partnership Center, and at the Address referred to as the Thrifty

cash checking center shall be declared an abuse of power. Election Law 5-104(2), suggests an

additional inquiry may be considered by the Board. This additional inquiry is not required,

therefore ordering such inquiry would constitute an Action by the Board. Clearly stated in

Election Law 312-2(2), any Board action requires majority vote. Commissioner Haight acted

unilaterally in such additional inquiry by either proceeding with such action without

Commissioner Knapps consent, or knowledge. Such action must be declared invalid by this

honorable court as it violates the law.

16. Respondent sending mailing to voters on his own stationary, advising permanent

absentee voters that they were required to fill out a new application for such ballot is egregious

unilateral action, violating Election Law 3-212(2). Such action not only is unilateral, but

deceptive as well. Such action was not authorized through a majority vote, in fact such letters

were not even provided for the Democratic Commissioner to review.

17. Taking addresses where multiple people are registered, working in conjunction with

the Dutchess County Republican County Committee and Republican County Committee people

to challenge the voter registrations and having members of the Republican Staff prepare

challenges to the registered voters, then having republicans alone challenge the voter registration,

rather than bringing it to a bipartisan challenge of a democrat and a republican and obtaining

majority vote to proceed on such inquiry all violate Election Law 3-212(2). Such unilateral


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actions by the Respondent, failed to seek and obtain a majority vote. Without a majority,

Respondent was not authorized to act.

18. Having a Republican Town of Washington Committee or any Republican staff

member, or Republican County committee member send out a unilateral letter to advise the

voters, that their voter registration was being challenged, and that a Sheriff may come to their

door violate Election Law 3-212(2). Such challenges are actions by the Board, requiring

Majority vote. Making matters worse the Respondent refused to provide the Democratic

Commissioner with all copies of any voter letters, forms, and correspondence to the county

Sherriffs office. All attempts to hide his unilateral activities.

19. Unilaterally spending over $1,100 of county tax dollars on postage in violation

Election Law 3-212(2), to carry out his actions is an egregious abuse of power by the

Respondent and must be stopped by this Honorable Court to preserve tax payer money.

Additionally, this Honorable Court shall direct that the County not pay these bills for mailing, as

it is the Respondents responsibility.

20. Equally disturbing is the Respondent taking original absentee applications into his

private office under his control without a bi-partisan presence and marking notations on voters

original applications not agreed by the Democratic Commissioner, and requiring absentee

applicants to show identification, both of which are actions, requiring a majority vote, and

without one violate Election Law 3-212(2).

COURT SHALL DIRECT THE PAYING OF PETITIONERS ATTORNEY FEES

21. The Second Department has consistently upheld awards of attorney fees in election

law proceedings brought by a commissioner(s) and against commissioner(s). Matter of Board of


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Elections of the County of Westchester v. ORourke, 210 A.D. 2d 402 (2ndDept 1994). Such

case law dictates that an award of counsel fees is appropriate when the county attorney cannot

represent the Board of Elections and the lawsuit is a result of a commissioner acting within his or

her official duties. This was also addressed in Hill v. County of Sullivan, 14 A.D.3d 744 (3rd

Dept 2005). This Court noted counsel fees are appropriate when outside counsel is hired to

represent one election commissioner. Specifically, the criteria for an award of attorney fees is

triggered when a commissioner, as a municipal officer is acting within his implied authority to

employ counsel in the good faith prosecution or defense of an action undertaken in the public

interest, and in conjunction with his official duties where the municipal attorney refused to act,

or was incapable of or was disqualified from, acting. Id at 746, quoting Cahn v. Town of

Huntington, 29 N.Y.2d 451. Additionally, the court noted that a lack of success on the merits

does not necessarily preclude an award of fees.

22. It is clear that the County Attorney of Dutchess County, the normal Attorney to

represent a member of the Board of Elections, cannot represent an Elections Commissioner

against another Elections Commissioner as it would present an impermissible conflict. Petitioner

was required to hire outside counsel. The undersigned petitions the court for the payment of

attorney fees by the County of Dutchess, pending a fee application, detailing services provided,

and approved by this honorable Court.

WHEREFORE, Petitioner respectfully request that this Court issue an order

directing that the Respondent Erik J. Haight, Dutchess County Republican Elections

Commissioner be permanently restrained from: Unilateral action including but not limited to:


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A. Sending mailing to voters on his own stationary, advising permanent absenteevoters that they were required to fill out a new application for such ballot,




Then having republicans alone challenge the voter registration, rather than bringing

it to a bipartisan challenge of a democrat and a republican and obtaining majority

vote to proceed on such inquiry,

C. Having a Republican town Committee or any Republican staff member send out aunilateral letter to advise the voters, that their voter registration was being

challenged, and that a Sheriff may come to their door,


E. Taking original absentee applications into his private office under his controlwithout a bi-partisan presence and marking notations on voters original

applications not agreed by the Democratic Commissioner,


actions,

G. Requiring absentee applicants to show Identification. And,


23/23

the payment of Petitioners attorney fees and further relief as this Court may seem just and

proper, including but not limited to continued jurisdiction over this matter for a timeframe to be

determined by the court in the event the Respondent refuses to cease his unilateral actions.

Dated: September ____, 2011Poughkeepsie, NY

_________________________________GILBERT J. WEST SR.ATTORNEY FOR PETITIONERP.O. BOX 284249 MAIN STREETPOUGHKEEPSIE, N.Y. 12602845-452-5100

Board of Elections suit

Documents

Transcript of Board of Elections suit