Schulz v. Williams
| Decision Date | 27 December 1994 |
| Docket Number | D,No. 1144,1144 |
| Citation | 44 F.3d 48 |
| Parties | Robert L. SCHULZ; Dorothy-Louise H. Brokaw; William Van Allen; Lloyd Wright; Libertarian Party of New York, Plaintiffs-Appellees, Carol Berman; Owen T. Smith; Evelyn J. Aquila; Helena M. Donohue, each individually and in their capacities as Commissioners of the New York State Board of Elections, Defendants-Appellees, v. Jerry WILLIAMS; Michael R. Long, Chairman, Conservative Party of the State of New York, Intervenors-Defendants-Appellants. ocket 94-9088. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert L. Schulz, pro se plaintiff-appellee.
Dorothy-Louise H. Brokaw, pro se plaintiff-appellee.
William Van Allen, pro se plaintiff-appellee.
Lloyd Wright, pro se plaintiff-appellee.
Lewis B. Oliver, Oliver & Oliver, Albany, NY, for Libertarian Party of New York, plaintiff-appellee.
Peter S. Kosinski, New York State Board of Elections, Albany, NY, for Carol Berman, Owen T. Smith, Evelyn J. Aquila, Helena M. Donahue, individually and in their capacities as Commissioners of the New York State Board of Elections, defendants-appellees.
John F. O'Mara, Davidson & O'Mara, Elmira, NY, for Michael R. Long, Chairman of the Conservative Party of New York, intervenor-defendant-appellant.
David L. Gruenberg, Troy, NY, for Jerry Williams, intervenor-defendant-appellant.
Before: MINER, McLAUGHLIN, and CABRANES, Circuit Judges.
This appeal from a judgment of the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge ) concerns the constitutionality of two provisions of New York State's Election Law: N.Y.Elec.Law Sec. 5-602 and Sec. 6-140 (McKinney's 1978 & Supp.1995). Section 5-602 requires that two copies of the lists of registered voters published by county boards of elections be sent to the county chairman of each political "party." Under N.Y.Elec.Law Sec. 1-104(3), a "party" is a political organization whose gubernatorial candidate received at least 50,000 votes in the preceding election. The term does not include an "independent body," Sec. 1-104(12), such as the Libertarian Party, one of the plaintiffs. 1
Section 6-140 requires that petitions for independent nominations indicate the signer's election district ("ED"), assembly district ("AD") (applicable in New York City and the towns of Nassau County) and ward ("W") (if any).
The constitutional challenge to these provisions was brought pursuant to 42 U.S.C. Sec. 1983 (1988) by the Libertarian Party, its gubernatorial candidate, and three voters, after the New York State Board of Elections ("Board") declared invalid a petition to nominate five Libertarian candidates for statewide offices. The district court declared that both provisions of the Election Law were unconstitutional and granted injunctive relief. Its injunction was appealed to this court on an expedited basis, about one week before the November 1994 election. We affirmed on November 2, 1994, but because of the time constraints, did not then issue an opinion.
The procedural history of this accelerated litigation is complex and has not yet been fully recounted. We do so here.
On August 23, 1994, an independent nominating petition purporting to contain 17,234 signatures was filed with the New York State Board of Elections on behalf of five Libertarian candidates for statewide office. Under N.Y.Elec.L. Sec. 6-142, 15,000 valid signatures are required for a candidate's name to be placed on the ballot. The petition was presumptively valid until it was challenged by Jerry Williams, a registered voter, as permitted by section 6-154. 2 On September 12, 1994, eleven days after Williams filed specifications to his objections to the petition, the Board determined that the petition had only 10,305 valid signatures and was invalid. Among the reasons for its conclusion were that 1,028 signatures contained the wrong election district, 204 contained no election district, 20 contained no assembly district, and 9 contained the wrong assembly district. The number was also reduced on grounds that the original total overstated the number of actual signatures.
Immediately thereafter, the five Libertarian Party candidates sought an order in the New York Supreme Court, Albany County, declaring their nominating petition valid. They argued only that the Board lacked jurisdiction On September 16, 1994, Robert L. Schulz, the Libertarian candidate for governor, along with the Libertarian Party and three voters (Dorothy-Louise H. Brokaw, William Van Allen and Lloyd F. Wright), also brought the instant action in the United States District Court for the Northern District of New York.
to hear Williams' challenge because of a defect in the service of the specifications to his objections. An order to show cause in that proceeding entered on September 13, 1994, setting a date of September 23, 1994, for a hearing on whether the court should enter an order declaring the independent nominating petition of the Libertarian Party sufficient and valid.
In a ruling dated September 28, 1994, Judge Cholakis enjoined the Board from enforcing its September 12 determination, on the ground that the plaintiffs had made the showing necessary for preliminary injunctive relief. He found that the plaintiffs had demonstrated irreparable harm, a sufficiently serious question going to the merits, and a balance of hardships tipping in their favor. See Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122 (2d Cir.1994) (); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam) (same). Judge Cholakis crafted a provisional remedy whereby the plaintiffs were given three additional days to produce valid signatures to demonstrate that they had the support statutorily required by section 6-142, but he waived the requirement of the provision of the ED, AD, and W numbers for those signatures. In Judge Cholakis's view, three days represented the "lost time" that the plaintiffs had had to spend processing ED, AD, and W numbers for the original petition. The Board was then to determine the validity of any newly submitted signatures and report back to the court, which would then fashion a final remedy.
On September 29, 1994, the New York State Supreme Court dismissed the candidates' petition challenging the jurisdiction of the Board to consider the objections and denied all relief sought.
On October 5, 1994, the district court granted motions to intervene by Jerry Williams, who had submitted to the Board the objections to the petition, and by Michael Long, Chairman of the Conservative Party of the State of New York. The court granted the motions under Rule 24(b) of the Federal Rules of Civil Procedure, which provides for permissive intervention. In so doing, the court noted that the Board at that time had chosen not to appeal from the grant of preliminary injunctive relief, but that such an appeal would be possible by the intervenors under 28 U.S.C. Sec. 1292(a)(1) (1988), which provides for interlocutory appeals of injunctive orders. In the course of this ruling on the intervention motion, Judge Cholakis also "clarif[ied]" his September 28 decision as to both his legal conclusions and the three-day validation procedure set forth as a remedy.
The intervenors then appealed to this court, without the Board, from the order entering the preliminary injunction. At oral argument, Peter Kosinski, counsel for the Board, represented that the Board consisted of two members of the Democratic Party and two members of the Republican Party. He reported that two of the Board members did not support an appeal, thereby leaving the Board without the requisite majority to authorize an appeal. The New York Civil Liberties Union submitted a brief as amicus curiae in support of the plaintiffs-appellees' position.
On October 21, 1994, this court vacated the preliminary injunction and remanded on the grounds that no hearing had been held on contested evidence that might have been determinative of the application for the preliminary injunction. Schulz v. Williams, 38 F.3d 657 (2d Cir.1994).
From October 24 through October 26, Judge Cholakis held an evidentiary hearing, in which the Board participated as defendant, and on October 27, he reinstated his previous injunction. On October 28, the intervenors appealed, again without the Board. At oral argument, which was held on November 1, 1994, both parties agreed that the October 27 order, which followed a full trial on the merits, was a permanent injunction. On November 2, 1994, we affirmed in a summary order,
noting that an opinion would follow. On November 8, 1994, the Libertarian candidates appeared on the ballot in the general election.
At the outset, the court must address the question of its subject matter jurisdiction. Although neither the district court nor the parties raised the issue below, it is well established that federal appellate courts have "an independent obligation to examine their own jurisdiction." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990). The unusual procedural posture of this case--intervention after the grant of a preliminary injunction for purposes of appeal after the state decided not to appeal--warrants careful examination of the question of jurisdiction.
The Supreme Court has made clear that "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986). In deciding whether the intervenors meet the Article III requirements, we take special note of the fact that the intervenors, but not the state, attempt to...
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