Hirschfeld v. Board of Elections in City of New York

• Decision Date: 21 January 1993
• Docket Number: Docket No. 92-9190
• Citation: 984 F.2d 35
• Parties: Abraham J. HIRSCHFELD and William M. Van Luvender, Plaintiffs-Appellees, v. The BOARD OF ELECTIONS IN the CITY OF NEW YORK and Kathleen M. Wagner, Jeannette Gadson, Vincent J. Cuttita, Maria Echaveste, Ferdinand C. Marchi, Alice Sachs, Anthony Sadowski, George M. Spanakos, Gertrude Strohm, Vincent J. Velella, as Commissioners of the Board of Elections in the City of New York, as Members of, and Constituting the Said Board of Elections, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 35

984 F.2d 35

24 Fed.R.Serv.3d 1139

Abraham J. HIRSCHFELD and William M. Van Luvender, Plaintiffs-Appellees, v. The BOARD OF ELECTIONS IN the CITY OF NEW YORK and Kathleen

M. Wagner, Jeannette Gadson, Vincent J. Cuttita, Maria

Echaveste, Ferdinand C. Marchi, Alice Sachs, Anthony

Sadowski, George M. Spanakos, Gertrude Strohm, Vincent J.

Velella, as Commissioners of the Board of Elections in the

City of New York, as Members of, and Constituting the Said

Board of Elections, Defendants-Appellants.

Docket No. 92-9190.

United States Court of Appeals, Second Circuit.

Argued Oct. 30, 1992.

Decided Oct. 30, 1992.

Opinion Filed Jan. 21, 1993.

Paul Marks, Asst. Corp. Counsel, New York City (O. Peter Sherwood, Corp. Counsel, City of New York, of counsel), for appellants.

Herbert Rubin, New York City (Herzfeld & Rubin, of counsel), for appellees.

Before: MESKILL, Chief Judge, WINTER, Circuit Judge, and RESTANI, ^* Judge.

MESKILL, Chief Judge:

This case involves motions for a stay and for an expedited appeal of an order and judgment of the United States District Court for the Southern District of New York, Knapp, J., directing defendant-appellant Board of Elections in the City of New York (Board of Elections) to deem valid the independent nominating petitions of plaintiff-appellee Abraham J. Hirschfeld, a candidate for the House of Representatives of the United States Congress. Hirschfeld claimed in the district court that the Board of Elections, by invalidating his nominating petitions and refusing to put his name on the ballot, had violated his civil rights under 42 U.S.C. § 1983 and his rights to due process and equal protection under the First and Fourteenth Amendments to the United States Constitution. William M. Van Luvender, who had signed Hirschfeld's nominating petition, similarly claimed a violation of his civil rights under 42 U.S.C. § 1983 and his rights to due process and equal protection under the First and

                Fourteenth Amendments.   The district court granted Hirschfeld's requested relief on September 21, 1992, and judgment was entered on September 30, 1992.   On October 28, 1992, six days before election day, the Board of Elections filed its notice of appeal and motions for a stay of the order pending appeal and for an expedited appeal.   On October 30, 1992, we denied both motions by summary order and now sanction defendant-appellant Board of Elections for misuse of the judicial process
                

BACKGROUND

On August 27, 1992, at approximately 11:40 p.m., Hirschfeld filed independent nominating petitions for his candidacy for United States Representative from the 14th Congressional District in the November 3, 1992 General Election. Before leaving the Board of Elections office, Hirschfeld asked the accepting clerk whether there were any further formalities expected of him, and he was told that there were none. On August 28, 1992, the Board of Elections mailed Hirschfeld a notice informing him that the last day to accept or decline the nomination was August 31, 1992. New York Election Law § 6-144 requires that Boards of Elections notify a candidate by mail forthwith of the last day to decline a nomination. New York Election Law § 1-106(1) provides that a candidate's failure to file timely a nomination acceptance is a "fatal defect." On September 1, 1992, Hirschfeld received the letter from the Board of Elections and on September 2, 1992, he filed an acceptance certificate.

The Board of Elections immediately ruled that Hirschfeld's nominating petitions were invalid because of his failure to file timely an acceptance. On September 4, 1992, Hirschfeld commenced a suit in the United States District Court for the Southern District of New York against the Board of Elections claiming that his civil rights under 42 U.S.C. § 1983 and his rights to due process and equal protection under the First and Fourteenth Amendments to the United States Constitution had been violated by the Board of Elections' invalidation of his petitions. The Board of Elections moved on September 15, 1992 to dismiss the complaint for failure to state a claim upon which relief could be granted.

On September 21, 1992, the district court denied the motion to dismiss, conducted an evidentiary hearing, and granted the relief sought in Hirschfeld's complaint, directing the Board of Elections to place Hirschfeld on the November 3, 1992 ballot. The district court held that the application in this instance of the New York Election Law requirement of a certificate of acceptance for independent nominations for office was an unconstitutional burden on Hirschfeld's access to the ballot because he was not given an appropriate opportunity to file the certificate of acceptance. Hirschfeld v. Board of Elections, 799 F.Supp. 394, 395 (S.D.N.Y.1992). Judgment was entered by the district court on September 30, 1992.

For the next four weeks, Hirschfeld spent money and time moving forward with his campaign, and the Board of Elections corresponded by letter with Hirschfeld concerning such matters as the spelling of his name on the ballot, all as if the September 30, 1992 judgment was to be the final disposition of the matter. On October 8, 1992, Hirschfeld's attorneys mailed a letter to the Board of Elections granting them permission to shorten Hirschfeld's name if necessary to fit it on the ballot. On October 9, 1992, Kathy King, general counsel to the Board of Elections, wrote back confirming the authorization to shorten Hirschfeld's name, stating:

It is further acknowledged that, even though the Independent Nominating Petitions which placed Mr. Hirschfeld on the ballot were circulated under the name of "ABRAHAM J. HIRSCHFELD", Mr. Hirschfeld's petitions and/or candidacy will not be invalidated in the event that the name ABE HIRSCHFELD is used because of the aforementioned reasons.

On October 26, 1992, Hirschfeld's attorneys again corresponded with the Board of Elections, and in a letter dated October 27, 1992, the day before the Board of Elections filed its notice of appeal, King assured Hirschfeld's attorneys that "[t]he name of On October 28, 1992, five weeks after the district court rendered its decision, nearly a month after the district court entered judgment and six days before the General Election, the Board of Elections filed a notice of appeal and a notice of motion seeking a stay of the order pending appeal and an expedited appeal.

your client, Abraham J. Hirschfeld, will appear as 'ABRAHAM J. HIRSCHFELD' on the ballot for the General Election to be held on November 3, 1992, for the office of Representative in Congress from the 14th Congressional District."

Responding papers were received by us on October 29, 1992, and on October 30, 1992 we heard oral argument on the motions for stay and expedited appeal. After hearing from counsel for the Board of Elections, we denied the motions by summary order informing the parties that a published opinion would follow.

DISCUSSION

I

Rule 8(a) of the Federal Rules of Appellate Procedure specifies that an application for a stay of a judgment or order must generally be made first to the district court:

Application for a stay of the judgment or order of a district court pending appeal ... must ordinarily be made in the first instance in the district court. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action.

Fed.R.App.P. 8(a). The Board of Elections' motion papers give no explanation why the instant motion for a stay pending appeal was made in the first instance to this Court. No showing of impracticability of bringing such a motion in the district court was offered in briefs or oral argument. The Board of Elections has clearly made no effort to follow proper appellate procedure in their motion for a stay.

In addition to disregarding Rule 8, the Board of Elections waited until the Wednesday before the Tuesday of the General Election to file a notice of appeal, after having allowed the judgment below to stand for four weeks. This move was misleading at best. For a month the Board of Elections fostered Hirschfeld's expectation that the judgment would be the final determination of the matter by sending him letters confirming how his name would appear on the ballot, during which time Hirschfeld continued putting time and money into his campaign. At the time of the Board of Elections' motions, voting machines carrying Hirschfeld's name were being delivered or had already been delivered to the respective polling places, and absentee ballots had already been printed and distributed.

The Board of Elections' timing of the appeal and motion for a stay suggests that the Board was more interested in a delay that would keep Hirschfeld off the November 3 ballot than in a determination of the correctness of Judge Knapp's decision. ¹ We received motion papers on Wednesday, October 28, received responding papers the next day, and heard argument on Friday, October 30. The General Election was two business days later. This is a misuse of the judicial process. Given the Board of Elections' willful disregard of Rule 8, the intervening communications of the parties and the misuse of the judicial process, the instant motions were denied without even examining this Court's standard for the granting of a stay. In the interest of completeness we will show why the Board of Elections was not entitled to a stay even if it had complied with Rule 8.

In this Circuit, four factors are considered before staying the actions of a lower court: (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated...