Brief filed in the Appellate Division - Second Department against the Independence Party

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
________________________________________________

SAMUEL H. SLOAN,

Petitioner- Appellant,

Index No. 25230/2004
2004-07081

-against-

CHARLES E. KNAPP, GARY SINAWSKI, ROBERT CONROY, KING'S COUNTY INDEPENDENCE PARTY, DIANE HASLETT RUDIANO and against NERO GRAHAM, FREDERIC M. UMANE, WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, DOUGLAS A. KELLNER, TERRENCE C. O'CONNOR, NANCY MOTTOLA-SCHACHER, STEPHAN H. WEINER, Commissioners of Elections of the City of New York, constituting the Board of Elections in the City of New York,

Respondents-Respondents.
_____________________________________________________________

BRIEF OF THE PETITIONER-APPELLANT
_____________________________________________________________

Samuel H. Sloan
920 Belmont Avenue
Brooklyn NY 11208

(718) 277-6957

samsloan@samsloan.com

http://www.samsloan.com/vindpet.htm

Time Requested:

15 Minutes to Argue

CASES

Blonstein v. Bauer (1995 3d Dept.) 218 AD 2d 912, 630 NYS 2d 814

Burton v. Coveney, 346 NYS 2d 269

Dioguardi v. Donohue (1994 3rd Dept.) 207 AD 2d 922, 615 NYS2d 948

Independence Party vs. Berman, 294 F. Supp 2d 518 (SDNY 2003)

Isabella v. Hotaling, 615 NYS 2d 945 (3d Dept. 1994)

SEC vs. Samuel H. Sloan, 436 US 103 (1978)

Sloan vs. Conroy, No. 04 Civ. 2946 (DGT) (EDNY)

Sloan vs. Rudiano, No. 04 Civ. 2791 (DGT) (EDNY)

Matter of Squitieri v. Power, 303 NYS 2d 663

Tashjian v. Independence Party of Connecticut, 479 U.S. 208 (1986)

Thompson v. New York State Board of Elections, 387 NYS 2d 657 (Court of Appeals, 1976)

Werbel v. Gernstein, 78 NYS 2d 440 (1948)

Zuckman v. Donahue, 80 NYS 2d 698 (1948)


SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION-SECOND DEPARTMENT
_______________________________________________________________

SAMUEL H. SLOAN,

Petitioner-Appellant,

Index No. 25230/2004

-against-

CHARLES E. KNAPP, GARY SINAWSKI, ROBERT CONROY, KING'S COUNTY INDEPENDENCE PARTY, DIANE HASLETT RUDIANO and against NERO GRAHAM, FREDERIC M. UMANE, WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, DOUGLAS A. KELLNER, TERRENCE C. O'CONNOR, NANCY MOTTOLA-SCHACHER, STEPHAN H. WEINER, Commissioners of Elections of the City of New York, constituting the Board of Elections in the City of New York,

Respondents-Respondents.

________________________________________________________________________

APPELLANT'S BRIEF

________________________________________________________________________

TO THE SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

Samuel H. Sloan, the Petitioner herein, is a candidate for election to the United States Congress from the Tenth Congressional District. The incumbent is Edolphus Towns. Petitioner is a duly qualified voter residing at 920 Belmont Avenue, Brooklyn NY 11208, which is within the Tenth Congressional District.

Designating Petitions naming Petitioner as a candidate for United States Congress were filed with the New York City Board of Elections on July 15, 2004. On August 4, 2004, Petitioner was ruled off the ballot. By statute, Petitioner had three business days to file a validating petition with the Supreme Court of the State of New York. Thus, Monday, August 9, 2004, was the last day to file.

This proceeding was commenced on August 9, 2004. An Order to Show Cause was signed late in the afternoon of the same day. Petitioner waited in the courthouse for several hours while this process was taking place. Finally, after 5 minutes before 5:00 PM, as most of the regular court personnel was streaming out of their office on their way home, the clerks office gave petitioner a copy of the signed order to show cause. Petitioner first caught the subway and took the train to the New York City Board of Elections at 32 Broadway. Petitioner did this in great haste because Petitioner feared that they would close at 5:00 PM and Petitioner would not be able to serve the petition. Fortunately, when Petitioner got there, they were still working. Petitioner gave them the order to show cause and they time stamped it at 5:05 PM and gave Petitioner a copy. Please note the time stamp on the front page of the Order to Show Cause which is annexed as an exhibit.

Petitioner then went to Staples where Petitioner made more copies of the Order to Show Cause to serve on the other parties.

Petitioner called Gary Sinawski, Counsel of Record for the Independence Party, and Theodore Alatsas, Counsel of Record for the Kingfs County Republican Party. Since neither of them were still in their respective offices, this being at about 5:30 PM, Petitioner left messages on their respective machines notifying them of the Order to Show Cause and the time and place for the hearing scheduled for the following morning.

Having made sufficient copies of the Order to Show Cause, Petitioner then spent the next several hours going to addresses in Manhattan and Brooklyn personally serving the respective parties.

Petitioner arrived at the Office of Gary Sinawski at 250 West 57th Street, Room 2017, Brooklyn NY at about 5:45 PM. When Petitioner arrived there, there was one lawyer in his office, an elderly man, but he was just leaving and walking out the door. He told Petitioner that he had no connection with Mr. Sinawski, even though they both worked in the same office. He told Petitioner to leave the papers on his secretaryfs desk, which Petitioner did. Petitioner then went back to Brooklyn where Petitioner served the offices of Hy Singer and the Kingfs County Republican Party at 26 Court Street and Petitioner went to the Kingfs County Board of Elections at 345 Adams Street, which is also the Office of Diane Haslett Rudiano, and served the papers there. Please note the time stamp from the Kingfs County Board of Elections on an exhibit.

Petitioner then served Charles Knapp, the respondent-objector in this proceeding, at his residence at 458 State Street. Petitioner rang his doorbell and he came down and took the papers without any problem at all.

Finally, Petitioner took the long Q-Train ride with my baby down to Avenue U where Petitioner served Theodore Alatsas by leaving a copy of the order to show cause on his door at 2115 Avenue U.

Petitioner then went home, arriving at about 11:00 PM. Then, early in the morning, sent all parties plus the Board of Elections copies of the Order to Show Cause and the Petition by e-mail and Petitioner posted them on the Internet.

The hearing was set for 9:30 AM. There were 42 cases on the calendar. Petitionerfs two cases were the last. When Petitionerfs case was called, all parties were present. Robert Conroy, Chairman of the Kingfs County Independence Party, was sitting in the audience. After three opposing attorneys had noted their appearances on the record, the court almost immediately dismissed the petitions saying that Petitioner had not filed an affidavit of service.

Petitioner believe that this was wrong and should not have been done. There was no issue about an affidavit of service because all parties were present. An affidavit of service is only needed if someone fails to appear and a party requests a default judgment. Here, there was no such issue. All parties were present in the courtroom.

Fran Miller, who said that she was appearing for the law firm of Harry Kresky, complained that she had not been served with the papers. She said that she had only received them by Fax. Apparently, the court failed to notice something wrong with this. What was wrong was that Fran Miller was not on the service list. She is not a defendant nor does she represent any party nor had she appeared before the Board of Elections. The Court said that Petitioner was required to file the affidavits of service by 9:30 AM according to the court rules which Petitioner should have read. A clerk handed Petitioner a copy of a notice published in the New York Law Journal, which is annexed. Petitioner pointed out that Petitioner is not a lawyer and Petitioner does not read the Law Journal. The court replied that he cannot bend the rules for non-lawyers and the rules required Petitioner to file the affidavit of service by 9:30 AM. However, the Court was wrong. The notice in the Law Journal merely states that the affidavit of service must be filed in the part. It does not say when. Petitioner did in fact file affidavits of service later in the day. Copies of the affidavits of service are annexed hereto along with a stamp showing that they were filed in the Clerks Office on August 10, 2004. (Incidentally, Petitioner also had to attend a long hearing at the Board of Elections at 42 Broadway the same day.)

Petitioner also pointed out to the court that it was physically impossible for Petitioner to serve all the papers and prepare and file affidavits of service by 9:30 AM. Petitioner was given the order to show cause at 4:55 PM. Petitioner had to go all over Manhattan and Brooklyn with his baby serving papers until late in the night and then sleep and get up the next morning to make it to the court on time. It is impossible to find a notary public to notarize an affidavit of service late at night and difficult to find one early in the morning or at any other time. Petitioner is a notary public but Petitioner cannot notarize his own signature.

In hearing the other cases as they were called, Petitioner observed that in every other contested case, the court questioned the affidavit of service. In one case, the court complained that the moving party had used a 14-year-old Bloomberg Form. In another case, which was apparently continued from the previous day, the court complained that the affidavit of service had been brought to the court by the process server at 9:45 AM whereas the court had ordered it to be filed by 9:30 AM.

One of these petitions was dismissed, that one being for the 15 minute lateness, while another was continued for a hearing the next day.

In the case where the complaint was that an old Bloomberg Form had been used, the attorney was saying that his adversary was present in court. Petitioner certainly cannot claim that the court was singling Petitioner out for discrimination. Every petitioner was having difficultly complying with the unusual requirements by the court regarding affidavits of service.

It is important to note that every petitioner in this group of cases is in court because he was ruled off the ballot by the Board of Elections. Because of this, Petitioner questions whether there should even be such a strict requirement for service of process. One petitioner claimed that his objector had barricaded herself in her apartment and called security guards and finally the police to keep the process server away from her front door. The process server had waited for six hours outside her door trying to serve her and could hear her voice inside. Petitioner questions whether in such cases of a person who is obviously evading service of process the court should dismiss the proceeding, as it did, instead of proceeding to the merits. These cases are essentially appeals. Every petitioner here was the losing party before the Board of Elections. A respondent to an appeal cannot be allowed to defeat the appeal merely by evading service of process. Service by overnight mail should be sufficient.

In a normal lawsuit, the process server has an advantage, to the extent that the defendant usually does not know that a lawsuit is about to be filed and will not know that a process server is coming to serve him and therefore often will not evade service. However, in the special proceedings before this court, the respondents know the exact last day to file and will know that simply by evading service or absenting from the jurisdiction for a few hours, the respondent can defeat the petitionerfs right to be heard. This cannot be allowed.

In one of the other cases argued on August 10, 2004, the opposing attorney said that he had not been retained to represent anybody and if he is retained he is not prepared to reveal who might retain him. In short, he was arguing in behalf of an anonymous client. The court should never have allowed him to stand up before the court and argue if he was not prepared to state who he was representing. Not only did the court to allow him to argue but it allowed him to prevail. The court ordered the name of the candidate, Anthony Solaris (phonetic spelling), to be stricken from the ballot. The end result was that ALL 42 PETITIONS ON THE CALENDAR WERE DISMISSED, most frequently because of claimed defects in the affidavit of service. ALL CANDIDATES WERE ORDERED STRICKEN FROM THE BALLOT.

Petitioner then moved for a rehearing by order to show cause. The Order to Show Cause was signed on the afternoon on August 11, 2004. This time, Petitioner was given until Midnight the following day to serve the papers and the hearing was set for 9:30 AM Friday, the Thirteenth, August 2004.

Because this time Petitioner had a somewhat reasonable time to serve, he was able to serve all the parties without much difficulty. Petitioner actually served most of the parties twice and made two affidavits of service for most of the parties for fear of another complaint about affidavits of service. In the case of Gary Sinawski, who is listed as the contact person for the objector, Charles E. Knapp, Petitioner found him in his office at 5:05 PM on August 10, 2004 and was able to serve him there. Petitioner served the New York City Board of Elections and the Kingfs County Board of Elections and obtained time-stamped receipts from both offices. (Note the overkill. Service was not required on both, only on one of them.)

This time, because Petitioner knew about the judgefs personal rule that affidavits of service must be filed before 9:30 AM, petitioner filed them at 9:20 AM. (Petitioner tried to file them earlier than that, but the court clerk would not take them.)

When the case was called, the court immediately questioned the affidavits of service, even though opposing counsel Harry Kresky (who had substituted for Gary Sinawski) did not raise this issue and did not claim that he had not been served. The court, Judge Levine, picked through the six proofs of service filed by Petitioner one-by-one trying to find some defect in them. He also asked the counsel for the New York City Board of Elections whether Petitioner had served them. Counsel for the BOE acknowledged that they had received service.

Finally, not being able to find anything wrong with any of the affidavits of service, Judge Levine dismissed both petitions anyway, saying that petitioner had improperly served the petitions and the orders to show cause himself, rather than through a process server.

Because Judge Levine dismissed the proceedings solely on the grounds of affidavits of service, he did not reach the merits. However, Petitioner believes that this court should reach the merits, which are as follows:

Prior to any of this happening, for the past more than three months, Petitioner has been seeking the Independence Party line in his campaign for US Congress from the 10th Congressional District, which is entirely in Brooklyn. He is a registered blank, meaning that he has no party registration.

On June 5, 2003, the State Committee of the Independence Party of New York and Frank MacKay, its chairman, filed a lawsuit in the United States District Court for the Southern District of New York entitled State Committee of the Independence Party of New York, Frank MacKay, et al vs. Berman, et al, 03 Civ 4123. In its complaint, the plaintiffs demanded that the defendants "Open Independence Party Primary Elections for statewide offices to participation by voters who are not members of any political party."

This complaint resulted in a judgment in their favor reported as Independence Party vs. Berman, 294 F. Supp 2d 518 (SDNY 2003). That decision relied upon Tashjian v. Independence Party of Connecticut, 479 U.S. 208 (1986).

The Petitioner herein, Samuel H. Sloan, wishes to take advantage of and enforce the rights obtained as a result of the aforementioned decisions by running as a candidate in the primary election of the Independence Party of New York and, if he prevails, by running in the general election in November as a candidate of the Independence Party. However, the Independence Party claims, wrongly, that they have opened a one-way street and that they are only allowing non-enrolled voters to vote for their selected candidates. They claim that non-enrolled voters may not run against the candidates they have selected. In short, they claim that they have opened a one-way street and that they have the right to associate with the non-enrolled voters but that the non-enrolled voters have no rights to associate with them.

As a second cause of action, Plaintiff has discovered that many enrolled members of the Independence Party enrolled essentially by mistake. On the form provided by the New York City Board of Elections, they checked the box labeled "INDEPENDENCE PARTY" and not the box labeled "I DO NOT WISH TO ENROLL IN A PARTY" because they wished to register as an independent voter, not as a member of any political party. They were surprised which they started receiving mail from the Independence Party. It is now apparent that the Independence Party is committing a fraud upon the voters. The Independence Party claims to be the third largest political party in New York State and to have 300,000 members, but the party has gotten many of the voters because of mistakes arising from their misleading name. The Independence Party should be required to change their name, if it continues to refuse to allow a truly independent candidate such as Plaintiff to run. The Independence Party insiders currently tend to be dominated by Marxists-Leninists, including Lenora Fulani, a former presidential candidate and black nationalist Marxist. The leadership is mostly from the International Workers Party, a Marxist organization. This is a relatively new development, as this group took control of the party in 2002. The party is now considering running Peter Camejo, an avowed Communist who has been a member of numerous organizations including the Young Communist League and the W.E.B. Du Bois Club, as its candidate for Vice-President of the United States. The Independence Party should not be allowed to keep its present name if it continues to mislead the voters by pretending to represent independent voters such as Plaintiff, when it does not.

On April 3, 2004, Plaintiff was put in contact with Robert Conroy, the Chairman of the King's County Independence Party. Plaintiff declared his candidacy and Mr. Conroy agreed to schedule his appearance before their screening committee. Later, Mr. Conroy invited Plaintiff to a candidate's screening to be held on Saturday Morning, May 22, 2004 at 10:15 AM at The Brooklyn Social Therapy office located at 121 Prospect Place, #1 (by Flatbush Avenue). The meeting place was arranged by Lenora Fulani.

Plaintiff appeared at 121 Prospect Place at 10:15 AM on May 22, 2004 but the place was empty. Neither Lenora Fulani nor Robert Conroy nor anybody else was there. Plaintiff thereafter reached Robert Conroy by telephone. Mr. Conroy told Plaintiff that the candidate's screening would have to be postponed but he was invited to a fundraiser at 3:00 PM the same day at the Magnetic Field Cocktail Lounge at 97 Atlantic Avenue, Brooklyn Heights, New York. Mr. Conroy requested a donation of $250.

Plaintiff attended the fundraiser at 97 Atlantic Avenue with his wife and baby. However, Plaintiff did not have $250, and so only donated $20. At that fund raiser, Plaintiff met Robert Conroy, Frank MacKay, possibly Lenora Fulani and many other Independence Party Activists, plus other Candidates and Naderites.

Some of the other candidates informed Plaintiff that there had been a candidate's screening that day, but at a different location than 121 Prospect Place.

Plaintiff was next told that the candidate's screening would take place on Friday May 28 or Saturday May 29. However, that screening later was cancelled for those dates as well.

Finally, Robert Conroy informed plaintiff that he could not have a candidate's screening in person, but only by conference telephone call. The conference call took place on the weekend of June 5. The only persons on the call were Robert Conroy, Fran Miller and Pam Texada.

The questions they asked were surprising. The committee kept asking Plaintiff how much in the way of "resources", by which they obviously meant money, could he or his family provide for the campaign and for the party. They also wanted to know if there were any neighborhood political groups that could provide money for the campaign, or a list of names that they could call to ask for donations. Essentially, they wanted to sell their endorsement. They also wanted to know if Plaintiff was willing to make his number one campaign issue the right of Ralph Nader to participate in the presidential debates against Bush and Kerry. On this last point, Plaintiff said that he was certainly willing to make this an issue but he felt that the voters in the 10th Congressional District were more concerned with other issues such as the War in Iraq. They said that they did not want Plaintiff to collect signatures to get on the ballot and that the party itself would obtain the signatures on the petitions.

Petitioner has since learned that all potential candidates of the Independence Party have been asked to provide money in substantial amounts in return for the ballot line. The Independence Party of New York is selling its ballot line, in violation of state and federal law. If the candidate does not have enough money, in the alternative the candidate is asked to provide a list of names and telephone numbers of associates of the candidate who will then be called and asked to contribute money to the campaign.

On Saturday, June 12, 2004, well after the petitioning process had already started, Robert Conroy called to tell Plaintiff that he had been rejected by his committee. Robert Conroy stated that the main reason that they rejected Plaintiff was that Plaintiff said that he is going to try to win the election and to be elected to Congress. Robert Conroy said that the Independence Party does not want candidates who are trying to win. He said that Plaintiff was rejected even though they do not have another candidate who wants to run in the Tenth Congressional District. He said that Plaintiff was denied a "Wilson-Pakula".

Because of the near impossibility of obtaining the 3500 signatures which a non-party member is required to obtain to get on the ballot, Plaintiff has sought the nomination of various political parties, including the Independence Party, because the Independence Party advertises itself as the party of the non-enrolled voters. In leaflets and literature distributed by the Independence Party, they have consistently characterized themselves as the party of the non-enrolled voters. They also filed a case in this court, Independence Party vs. Berman, 03 Civ. 4123 (SDNY) in which they stated that they are the party of the non-enrolled voters and that therefore all non-enrolled voters were entitled to vote in their primary elections.

Plaintiff maintains that if non-enrolled voters are entitled to vote, they are also entitled to run. For example, any person entitled to vote in a Democratic Party Primary can also run in that primary. Similarly, any person entitled to vote in a Independence Party Primary can also run for election in that primary. The Independence Party is not allowed to create a new special class of voters who are allowed to vote but are not allowed to run. Since the rules of the Independence Party and the decisions of the courts give the Plaintiff the right to vote in an Independence Party Primary, therefore Plaintiff is also allowed to run in that primary.

The respondents Robert Conroy, Gary Sinowski, King's County Independence Party, State Committee of the Independence Party of New York, are engaged in a plan or conspiracy to defraud the voters of New York State including the Plaintiff in violation of 1983 and 42 USC 1985 (3) and the Voting Rights Acts and all that jazz by claiming to be the party of independent voters whereas in reality the leadership of the Independence Party in New York City consists primarily of left-wingers including Communists, Socialists, Marxist-Leninists, Leninist-Marxists, Naderites, Trotskyites, and various other red political persuasions. Since they know that the voters of New York State would never vote for them if they knew what they really were, they have embarked on a plan or conspiracy to gain political power by pretending to be Independent, much as many Socialists groups have been able to mislead the voters by calling themselves "The People's Party". Rulings of the New York Board of Elections prohibit them from using the name People's Party, so they call themselves the Independence Party instead.

Plaintiff is a victim of this fraud and conspiracy because he solicited the nomination of the Independence Party because he did not know what they really were. In contrast, by way of example, the Working Families Party is openly left-wing and therefore Plaintiff did not solicit their nomination.

The respondents Robert Conroy, Gary Sinowski, King's County Independence Party, and State Committee of the Independence Party of New York have violated various provisions of the Voting Rights Acts by selling or offering to sell their ballot line and by purporting to create a special class of voters who can vote but cannot run. They claim to have created a class of voters who can vote but cannot run, which includes the plaintiff, and they also claim to have created a class of voters who can vote in the state wide primary elections such as the current election for US Senate where Charles Schumer is the Independence Party candidate but not in non-state wide elections such as elections for US Congress. The creation of these special classes is a violation of the Constitution and Laws of the United States. Once the camel has been invited to stick his nose into the tent, the rest of him cannot be kept out. The rights of the Plaintiff have been violated because they have prevented him from running as a candidate for US Congress in part by claiming that their primaries are only for state-wide candidates.

Diane Haslett-Rudiano is the chief clerk of the King's County Board of Elections. She has embarked on an elaborate partisan campaign to stop Plaintiff from becoming a candidate for US Congress in her dual capacity of also being the Secretary of the King's County Republican Party.

In furtherance of the scheme or conspiracy to stop Plaintiff from running for and being elected to US Congress, although Plaintiff informed Robert Conroy on April 3, 2004 that he wanted to be the Independence Party Candidate, Robert Conroy repeatedly put off the Plaintiff, did not show up for the screening, postponed the screening and when the screening was held he never got to meet the screeners face-to-face and only two other party members were present on the telephone call which did not constitute a quorum and therefore lacked the authority to grant Plaintiff a Wilson-Pakula. Then, Robert Conroy waited until well after the petitioning period had started to inform Plaintiff that he had been rejected as a candidate.

All of the above acts constituted violations of New York Election Law and the Constitutional and Statutory Rights of the Plaintiff as well as the by-laws of the Independence Party.

Robert Conroy has repeatedly told Plaintiff that if he is accepted as a candidate he is not to be circulating his own petitions to be on the ballot. Robert Conroy has explained that the Independence Party has its own stable list of petition signers and therefore will contact them and obtain their signatures without interference from the Plaintiff. Plaintiff believes that in view of the aforementioned circumstances including the fact that the petitioning period is now half passed, Robert Conroy should be ordered to produce the signatures he claims to be able to produce.

The Independence Party started off in 1992 as the Party of H. Ross Perot and later of Tom Golisano. However, Petitioner is informed that in just the last two years since 2002 the party or at least the New York City chapters of the party have been taken over by Marxists led by Lenora Fulani. Many of them are members of a so-called "Social Therapy" cult. They have come in from the New Alliance Party and the International Workers Party. They tend to live together in communes. They are patterned to some extent after the Lyndon La Rouche Group. They are in no way the representative of the non-enrolled voters that they claim to be. They are engaging in a conspiracy to perpetrate a fraud upon me and upon all of the voters of New York State.

ARGUMENT

The first point that must be noted is that the court below is wrong on the law. The fact that petitioner served the papers personally does not deprive the Supreme Court of Jurisdiction. Petitioner has researched the law on this and found that IN NO REPORTED CASE has a proceeding been dismissed solely because the petitioner served the papers himself. It is true that it is customary for an affidavit of service to state that the deponent gis not a party to this actionh, but that is not legally required. Petitioner has argued orally before the United States Supreme Court, the only non-lawyer in more than 40 years to do, SEC vs. Samuel H. Sloan, 436 US 103 (1978), and in that entire litigation all the way from the lowest court to the United States Supreme Court petitioner served all the papers himself. No objection was made by anybody to this and ultimately petitioner won the case 9-0.

Judge Levine clearly knew that petitioner was serving the papers himself, because the affidavits of service he filed on August 10, 2004 said so. More than that, it would have been IMPOSSIBLE for petitioner to obtain the services of a process server at 4:55 PM, with service being required to be made all the way down to the Coney Island area by Midnight the same night. Another petitioner before Judge Levine, Anthony Solaris (phonetic spelling) tried to do that and his case was dismissed because his process server did not bring the affidavit of service to court until 9:45 AM, whereas Judge Levine had told him that it had to be filed before 9:30 AM. This fifteen minute lateness means that voters in his district will be deprived of the right and the opportunity to vote at all, because there will be only one candidate.

The Board of Elections gave no reason for kicking Petitioner off the ballot and the record is silent on this point. Therefore, petitioner should be restored to the ballot. Dioguardi v. Donohue (1994 3rd Dept.) 207 AD 2d 922, 615 NYS2d 948. In addition, the Respondent, Independence Party, while it did file a two page affirmation (as opposed to the Republican Party in the parallel case which filed nothing at all) made no statement as to the reasons for kicking petitioner off the ballot, and for that reason petitionerfs ballot status must be restored. Isabella v. Hotaling, 615 NYS 2d 945 (3d Dept. 1994)

Next, it must be noted that the only objection to this petition comes from the Independence Party, through their attorneys, Gary Sinawski and Harry Kresky. (Please note that Mr. Sinawski and Mr. Kresky share the same office together and they both represent the Independence Party, but it appears that they are not exactly law partners).

Thus, if Petitioner can establish that they and the Independence Party have acted improperly, illegally or fraudulently, Petitioner should be restored to the ballot, since they are the only objectors.

It is also important to note that the Respondents have no other candidate. There is no other Independence Party candidate. Except for Petitioner, the incumbent, Ed Towns, is running unopposed. (The Republican Party has offered straw-man candidates, Mariana Blume and Harry Clarke, just to keep Petitioner off the ballot, but they have no intention of campaigning seriously.) In fact, the Independence Party has never run a candidate for US Congress in the Tenth Congressional District and the Republican Party has never run a candidate in that district in more than a decade.

Thus, if Petitioner is kept off the ballot, there will be no candidate by the Independence Party. This means that members of that party will not have the opportunity to vote in a primary election and will not have the opportunity to vote for an Independence Party candidate in the November General Election.

In short, it is not merely that the petitioner herein is not being allowed to appear on the ballot but, more importantly, the voters are not being allowed to vote at all.

What we have here in the Tenth Congressional District and in many if not most of the state assembly and senatorial districts in New York City and State is that there is only one candidate and the candidate has been selected by the party bosses. This is not unlike the Old Soviet Union. Everybody had the right to vote, but they were only allowed to vote for the one candidate which had been selected by the one party, which was the Communist Party. The candidate always got 99% of the vote, just as candidates in New York City often get, because there is only one candidate to vote for.

The present system seems to be designed to insure that the party bosses control all the power to decide who gets to run, which means that they can control the candidate and the issues he runs on. The end result is that the party bosses control the entire legislative branch of New York State and the voters have almost no say-so in how things are run.

The courts should examine this situation and make changes. The first change to make would be to allow the petitioner here, Samuel H. Sloan, to run for election, which in itself would upset the applecart of the political bosses of New York City sand State.

In the case presented here, the initial Order to Show Cause was not signed by Judge Joseph Levine. It was signed by Judge Ariel E. Belen. Being late Friday afternoon, Judge Levine had gone for the day, for obvious reasons. The importance of this is that at the hearing the following day, Judge Levine said that Petitioner should have known about his special rules, which were published in the New York Law Journal. However, Petitioner is not a lawyer and does not read the Law Journal and had not read those rules. Moreover, even if he had read the law journal, he would have read Judge Belenfs rules, not Judge Levinefs rules, because it was Judge Belen who had signed the order. Petitioner had no way of knowing who the judge would be the following day. More importantly that that, the ruling by Judge Levine was unreasonable. Petitioner received the signed order to show cause at 4:55 PM. He then had to make copies and go all over Manhattan and Brooklyn, serving the various respondents. He went as far up as 250 West 57th Street and as far down as 2115 Avenue U in Brooklyn, near Coney Island, arriving home at 11:00 PM.

Most of the Respondents did not get the petition in time that way, because most of them had gone for the day. However, Petitioner also called them on the telephone and sent a copy of the Order to Show Cause to all of the Respondents by email. In addition, Petitioner submitted the Order to Show Cause to the Internet email group of the Independence Party, which is ipny@yahoogroups.com , and both Mr. Sinawsky and Mr. Kresky and Mr. Charles Knapp, the objector here, are members of that group. Finally, Fran Miller, who appeared in court for these respondents, said that she had received the Order to Show Cause by FAX.

There is a line of cases which state that the petition in Election Cases must be served within the three day time period allowed for filing a petition. However, these cases are old. The most recent one was 1976. Also, all are summary short-form orders. No explanation is provided. There has apparently never been a contested case related to this issue. These cases are Thompson v. New York State Board of Elections, 387 NYS 2d 657 (Court of Appeals, 1976), citing Burton v. Coveney, 346 NYS 2d 269, Matter of Squitieri v. Power, 303 NYS 2d 663.

These pre-1976 decisions came before email was invented, before there was a World Wide Web, and even before there were FAX machines. There is no reported case on this issue which reflects modern technology.

What would have been reasonable is for Judge Levine to require service by mail by Express Overnight Delivery or by Federal Express. This would have provided tracking numbers which would have enabled the petitioner to prove that he sent the documents on time and to prove more importantly that the Respondents either received them or did not receive them because they were refused or because Respondents were not available or out of town. Then, the respondents could not have evaded service.

The instant cases are not really original proceedings. These cases are essentially appeals from the order of an administrative agency, in this case the Board of Elections. Petitioner did not start these proceedings. The respondent-objectors did. The respondent objectors were required merely to serve the petitioner by mailing by certified mail. The petitioner on the other have was required to search out and locate the respondents and serve them personally. This is obviously an unfair and unequal situation. More than that, the address and whereabouts of the petitioner is known because he is a candidate for election. The respondents, who are the objectors below, can be anybody. Any registered voter can object. The objector could even be a fake person using a fake name. Such cases are not uncommon. The attorney for the objector in the Anthony Solaris case refused even to reveal who his client was. He should be disbarred.

In the parallel case here, the Republican Party objector, Bibi S. Khan, is registered to vote at a fake address. She does not live at 100 Hill Street, Brooklyn NY 11208. Petitioner is prepared to prove this at a fact hearing. In addition, Diane Haslett Rudiano, who is the Secretary of the Kingfs County Republican Party, is also the Chief Clerk of the Kingfs County Board of Elections, and she is also registered to vote at a false and fraudulent address, which is 258 Schenck Avenue. Petitioner is prepared to prove this at a fact a hearing., a hearing which could not be held because Judge Levine dismissed the petition. Because Diane Haslett Rudiano is registered to vote at a false address, this means that she is not registered to vote at all. Blonstein v. Bauer (1995 3d Dept.) 218 AD 2d 912, 630 NYS 2d 814. This means that she is illegally occupying the position of Chief Clerk of the Kings County Board of Elections, because one must be registered to vote in Brooklyn to hold that position. She is guilty of numerous election frauds and should be criminally prosecuted. This means that her certificate stating that Petitionerfs petitions were improper is invalid. Petitioner intends to prove all this at a hearing, if one is ever held.

Please note that even before any of this happened, Petitioner had filed two lawsuits in federal court against Diane Haslett Rudiano over this same issue. These cases are now pending. They are Sloan vs. Rudiano, No. 04 Civ. 2791 (DGT) (EDNY) and Sloan vs. Conroy, No. 04 Civ. 2946 (DGT) (EDNY). In view of these two pending lawsuits, both filed around the first of July, Diane Rudiano was required under conflict of interest rules to disqualify herself from being the referee to Petitionerfs petitions. However, she did not disqualify herself and instead judged the petitions and signed the certificate thereto. Since her involvement in this case was improper, Petitioner should be restored to the ballot.

Another issue concerns the fact that in the last two years, the Independence Party in Brooklyn and Manhattan has been taken over by a left-wing group. Most of the original founders of the Independence Party have been thrown out. Petitioner has lots of witnesses who are prepared to testify to this.

It has been held that the gpurpose of [a section of Election Law] is to protect the integrity of political parties and prevent invasion or capture of control of parties by persons not in sympathy with their principles.h Werbel v. Gernstein, 78 NYS 2d 440 (1948), Zuckman v. Donahue, 80 NYS 2d 698 (1948). The present Independence Party has in fact been invaded and captured by persons not in sympathy with their principles, and petitioner intends to prove this at a hearing, as a result of which Petitioner should be restored to the ballot.

On this last point, Wilson-Pakula Law, Election Law Section 6-120 (4) provides:

"4. This section shall not apply to a political party designating or nominating candidates for the first Timeh.

The Independence Party has never had a candidate for US Congress for the Tenth Congressional District and Petitioner should be restored to the ballot for that reason as well.

CONCLUSION

For all of the Reasons set forth above, the decision of the court below should be reversed and this court should order the name of the petitioner to be restored to the ballot.

Respectfully Submitted,

Samuel H. Sloan


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