Amedure v. State

• Docket Number: Index No. 2022-2145
• Decision Date: 21 October 2022
• Citation: 176 N.Y.S.3d 457
• Parties: In the Matter of Rich AMEDURE, Robert Smullen, William Fitzpatrick, Nick Langworthy the New York State Republican Party Gerard Kassar, the New York State Conservative Party, Carl Zeilman, the Saratoga County Republican Party, Ralph M. Mohr, and Erik Haight, Petitioners/Plaintiffs, v. STATE of New York, Board of Elections of the State of New York, Governor of the State of New York, Senate of the State of New York, Majority Leader and President Pro Tempore of the Senate of the State of New York, Minority Leader of the Senate of the State of New York, Assembly of the State of New York, Majority Leader of the Assembly of the State of New York, Minority Leader of the Assembly of the State of New York, Speaker of the Assembly of the State of New York, Respondents/Defendants.
• Court: New York Supreme Court

176 N.Y.S.3d 457

In the Matter of Rich AMEDURE, Robert Smullen, William Fitzpatrick, Nick Langworthy the New York State Republican Party Gerard Kassar, the New York State Conservative Party, Carl Zeilman, the Saratoga County Republican Party, Ralph M. Mohr, and Erik Haight, Petitioners/Plaintiffs,
v.
STATE of New York, Board of Elections of the State of New York, Governor of the State of New York, Senate of the State of New York, Majority Leader and President Pro Tempore of the Senate of the State of New York, Minority Leader of the Senate of the State of New York, Assembly of the State of New York, Majority Leader of the Assembly of the State of New York, Minority Leader of the Assembly of the State of New York, Speaker of the Assembly of the State of New York, Respondents/Defendants.

Index No. 2022-2145

Supreme Court, New York, Saratoga County.

Decided on October 21, 2022

John Ciampoli, Esq., Messina, Perillo & Hill, LLP Attorney for Petitioners/Plaintiffs, 285 West Main Street, Suite 203, Sayville, New York 11782

Adam Fusco, Esq., Fusco Law Office, Attorney for Petitioners/Plaintiffs, P.O. Box 7114, Albany, New York 12224

Assistant Attorney General Lauren Eversley, Esq., NYS Attorney General Letitia James, Appearing on behalf of the Respondents State of NY & Governor Hochul, The Capitol, Albany, NY 12224-0341

Brian Quail, Esq., Appearing on behalf of the Respondent NYS BOE (Democratic Commissioners), 40 Pearl Street, Suite 5, Albany, New York 12207

Kevin Murphy, Esq., Appearing on behalf of the Respondents NYS BOE (Republican Commissioners), 40 Pearl Street, Suite 5, Albany, New York 12207

James Knox, Esq., E. Stewart Jones Hacker Murphy, LLP, Attorneys for Respondents NYS Senate & Senate Majority Leader, Pres. Pro Tempore, 28 Second Street, Troy, New York 12180

Paul DerOhannesian, Esq., Jillian Groshans, Esq., DerOhannesian & DerOhannesian, Attorneys for Respondents NYS Senate Minority Leader & Assembly Minority Leader, 159 Wolf Road, Suite 305, Albany, New York 12207

Christopher Massaroni, Esq., Hodgson Russ, LLP, Attorneys for Respondents NYS Assembly; NYS Assembly Majority Leader & Speaker, 677 Broadway, Suite 401, Albany, New York 12207

Dianne N. Freestone, J.

Petitioners Richard Amedure, Robert Smullen, William Fitzpatrick, Nick Langworthy, the New York State Republican Party, Gerard Kassar, the New York State Conservative Party, Carl Zeilman, the Saratoga County Republican Party, Ralph M. Mohr and Erik Haight (hereinafter referred to as the "Petitioners") commenced the within hybrid proceeding pursuant to Article 16 of the New York State Election Law and declaratory judgment action pursuant to Section 3001 of the New York

176 N.Y.S.3d 460

State Civil Practice Law and Rules on September 27, 2022 by filing a verified petition/complaint with the Saratoga County Clerk's Office and sought expedited intervention of the Court by Order to Show Cause which was signed and dated by the Court on September 29, 2022.¹

In its September 29, 2022 Order to Show Cause (OTSC) and accompanying Verified Petition of the same date (later amended to include appropriate pagination on October 4, 2022), the Petitioners sought certain declaratory and injunctive relief related to the constitutionality of Chapter 763 of the Laws of 2021 and New York State Election Law § 8-400. This action was commenced against the State of New York and the Governor of the State of New York Kathy Hochul (hereinafter Respondent NYS), the Board of Elections of the State of New York (parenthetically and hereinafter referred to as Respondent NYS BOE (D) and Respondent NYS BOE (R)), the Senate of the State of New York and the Majority Leader and President Pro Tempore of the Senate of the State of New York (hereinafter Respondent NYS Senate), the Assembly of the State of New York and the Majority Leader of the Assembly of the State of New York and the Speaker of the Assembly of the State of New York (hereinafter Respondent NYS Assembly), the Minority Leader of the Senate of the State of New York (hereinafter Respondent NYS Senate Minority) and the Minority Leader of the Assembly of the State of New York (hereinafter Respondent NYS Assembly Minority) in their respective capacities as governing bodies of the State of New York.

The Court originally made the instant Order to Show Cause returnable on October 13, 2022, but this proceeding has statutory preference (see , NYS Election Law Section 16-116 ) over all matters on the Court's calendar given the statute of limitations associated therewith. Therefore, by letter dated September 29, 2022 the Court advised counsel for the Plaintiff that the return date for the instant Order to Show Cause had been rescheduled for Wednesday, October 5, 2022 and directed that a copy of the rescheduling notice be provided along with service of the Order to Show Cause. On or about September 29, 2022, copies of the Order to Show Cause, Verified Petition and September 29, 2022 Scheduling Letter were served by representatives of the Plaintiffs upon representatives of the individual Respondents/Defendants, respectively. The matter thus was scheduled for an initial appearance and return on the Plaintiffs’ Order to Show Cause for October 5, 2022 at 1:00 p.m.

As it relates to the parties in this action, the Court notes that two (2) separate applications had been made for leave to intervene as named parties. On October 4, 2022, the Court was contacted by representatives of the New York Civil Liberties Union (NYCLU) and the Democratic Congressional Campaign Committee (DCCC) and was advised that both would be filing Motions to Intervene and likewise attending the October 5, 2022 appearance. By Notice of Motion (NYSCEF Doc. No. 105), Order to Show Cause (NYSCEF Doc. No. 118) and Memorandum of Law (NYSCEF Doc. No. 106) with accompanying Attorney Affirmation (NYSCEF Doc. No. 81) and Exhibits and Affidavits (NYSCEF Doc. Nos. 82, 110-116) along with Memo of Law in Opposition to Petition (NYSCEF Doc. No. 117) and Supplemental Memo in Support

176 N.Y.S.3d 461

of Intervention (NYSCEF Doc. No. 80) and Supplemental Attorney Affirmation (NYSCEF Doc. No. 81) filed on October 5, 2022 and October 11, 2022 (respectively) with the Saratoga County Clerk's Office the NYCLU, Common Cause New York, Katharine Bodde, Deborah Porder and Tiffany Goodin (hereinafter NYCLU) sought leave to intervene as named parties in the instant action. By Notice of Motion (NYSCEF Doc. No. 9) Order to Show Cause for Expedited Leave to Intervene as Respondents (NYSCEF Doc. No. 15) and Memorandum of Law (NYSCEF Doc. No. 17) with accompanying Attorney Affirmation (NYSCEF Doc. No. 16), Accompany Affidavits (NYSCEF Doc. Nos. 57-66) and Verified Answer of Proposed Intervenors (NYSCEF Doc. No. 18) along with Memoranda of Law in Support of Intervention (NYSCEF Doc. No. 70) and in Opposition to OTSC (NYSCEF Doc. No. 67) and Affirmation in Opposition to Petitioner's OTSC (NYSCEF Doc. No. 48) and accompanying Exhibits and Affidavits (NYSCEF Doc. Nos. 49-66) filed on October 5, 2022 and October 7, 2022 (respectively) with the Saratoga County Clerk's Office the Democratic Congressional Campaign Committee (DCCC), Jackie Gordon, the New York State Democratic Party, New York State Democratic Committee Chair Jay Jacobs, the Wyoming County Democratic Committee, Wyoming County Democratic Committee Chair Cynthia Appleton, Declan Taintor, Harris Brown, Christine Walkowicz, (hereinafter "Intervenor DCCC") sought leave to intervene as named parties in the instant action and answer the Petitioners’ OTSC. The Court permitted the NYCLU and DCCC to appear on the October 5, 2022 return on the OTSC, file papers in support of their respective motions to intervene and in opposition to the relief requested by the Petitioners and likewise appear in the October 12, 2022 Hearing on the pending motions.

At the Petitioners’ Order to Show Cause (OTSC) return date of October 5, 2022, appearances were made by all the named Respondents and the proposed intervenors. To begin, the Court acknowledged its full awareness of the gravity of the issues and that Election Law matters take precedence over everything on the Court's calendar. The Court recognized that many of the Respondents had only recently been served and retained counsel, and that an appropriate amount of time would be given to file papers addressing the substantive issues. Petitioners made an oral application, in light of the timelines associated not only with the instant matter but of the election calendar dates relating to absentee ballots being returned, that a preservation order be issued preserving all collected absentee ballots pending the Court's determination on the instant challenges. Respondent NYS BOE (D), Respondent NYS, Respondent Assembly, Respondent Senate and the NYCLU objected to the Petitioners’ oral motion. The Court reserved on the Petitioners’ oral motion for a preservation order and on the Motions to Intervene filed by the NYCLU and DCCC. At the close of the October 5, 2022, the Court directed that all responsive papers from the Respondents were to be submitted by the close of business on Friday, October 7, 2022. The Court further directed that any additional replies and supplemental papers were to be submitted before Noon on Tuesday, October 11, 2022 (the Court being closed on Monday, October 10, 2022 in observance of Columbus...