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In the Matter of the Application of JULIE VAN NESS individually and on behalf of all signers of a petition filed pursuant to Section 40 of the New York City Charter, and JULIE VAN NESS as Treasurer of SHELTER REFORM ACTION COMMITTEE, an unincorporated association,
Petitioners,
-against-
CARLOS CUEVAS, as City Clerk of the City of New York, and the BOARD OF ELECTIONS OF THE CITY OF NEW YORK,
Respondents,
For an Order pursuant to Article 16 of the Election Law, Article 78 of the Civil Practice Law and Rules, and 42 U.S.C § 1983, inter alia, declaring valid the initiative petition submitted by Petitioners.
Index No. 116570/97
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AFFIDAVIT OF ROBERT A. MILNE
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STATE OF NEW YORK)
)ss.:
COUNTY OF NEW YORK )
ROBERT A. MILNE, being duly sworn, deposes and says:
I am counsel to the petitioners in the above-captioned matter, and I make this affidavit in support of petitioners' Verified Request for Emergency Relief.
On September 12, 1997, a Friday, I was informed that the City Clerk had rejected the Section 40 Charter Amendment initiative recently submitted by petitioners.
According to the letter I received that day from the Clerk (and a number of conversations I had that day with Edward F. O'Malley, General Counsel to the Clerk), the initiative petition was rejected because the Board of Elections (the "Board") had (at the Clerk's direction) "determined" that only 41,736 signatures were "valid," short of the 50,000 signatures required under Section 40, and because of certain vaguely stated objections to the substance of the petition.
The Board purported to have conducted a line-by-line analysis of the signatures contained in the petition, and determined that 33,478 signatures were invalid (out of the 75,214 originally submitted).
In a conversation with Mr. O'Malley on September 12, I requested immediate access to any and all documentation in the Boardís possession reflecting its review of the signatures. I also noted that I believed petitioners were entitled to specifications as to the basis of the objection to each contested signature, consistent in form and substance with the Board's own rules concerning objections to designating petitions.
I also informed Mr. O'Malley that petitioners do not concede that the Clerk, or the Board, has authority to question the substantive validity of signatures or the subject-matter of the petition, in the absence of a third-party objection.
With respect to documentation concerning the Board's review of the signatures, Mr. O'Malley directed me to Mr. Daniel De Francesco, Executive Director of the Board.
I promptly contacted Mr. De Francesco on the afternoon of September 12. In the course of the telephone call on September 12, Mr. De Francesco informed me that the Board was copying all of the ìworksheetsî and related materials in the Boardís possession reflecting its assessment of the signatures. This material was produced to petitioners at approximately 7:00 p.m. on Friday evening, September 12.
The material produced consisted of (1) four large boxes of ìworksheets,î upon which the Board reviewers noted any ìdeficienciesî they believed they found with the signatures, (2) reports purporting to tabulate the total objections on a per-volume, and grand-total basis (see Petitionersí Appendix, Tab N for a copy of these reports), and (3) instructions given to the Boardís reviewers for conducting the review of this petition. (See App. Tab O, for the instructions). In a telephone conversation I initiated on Sunday, September 14, Mr. De Francesco again stated that the material provided by the Board on Friday represented that it had produced ìeverything we haveî with respect to the evaluation of the petition. Indeed, he stated that the materials provided were better than the "specification sheets" the Board usually requires of third party objectors.
The instructions are set forth in full below:
1. Use Red Pencil Only.
2. Check Subscribing Witness First. Please note that the ED/AD is not required ó See Election Law Section 6-134 repealing this requirement.
3. If the Subscribing Witness is Not Valid, indicate the reason why, mark the sheet "SWNV" and mark ì0î valid on the lower left corner of the Page.
4. If the Subscribing Witness is valid, do a line-by-line; place a check mark next to any valid signature.
5. If a voterís status is ìXî, do not count the signature and treat as ëNRí.
6. If any signature is not valid, mark next to the non-valid signature one of the following symbols:
NR - Name and address of signator does not match a registered voter in New York City.
ILL - Name and/or address can not be determined to search for a voter in New York City.
OJ - Address of the signator is outside New York City.
TE - If the signature is dated before May 5, 1997 (120 days before September 2, 1997) mark "TE".
7. Write the total number of valid signatures on the lower left corner of the page.
8. Take extreme care not to knock out a signature twice ó once for "SWNV" and one for "NR".
9. The total number of valid signatures of each volume should be calculated and written on the lower left hand corner of the volume cover.
10. First Day to Circulate Petition -- May 5, 1997.
(App. Tab O).
Thus, according to the instructions, all actually-asserted objections would appear next to the signatures themselves or, in the case of an alleged invalid Subscribing Witness, a notation so indicating somewhere on the page.
In order to test the validity of the Board's assertion that approximately 33,000 signatures in fact had been contested by the Board, several people working under my direction carefully reviewed each ìworksheet,î and tabulated each objection actually noted. (In the case of objections to Subscribing Witnesses, my reviewers counted each signature on that page as contested).
The results of that review reveal that the grand total of signatures actually contested by the Board is only 21,557. This is far less than the 33,125 signatures that the Board purports to have objected to. (See Clerkís Reports, App. Tab N).
Thus, since the Board concedes that 74,861 signatures were submitted, this leaves over 53,304 signatures as to which the Board asserted no objection, well in excess of the 50,000 required by Section 40.
In conducting their review of the ìworksheets,î my reviewers noticed several blocks of missing pages.
Petitioners devoted at least 200 person-hours over the weekend (9/13-14) on evaluating respondentsí ìworksheets.î
In addition, despite not having access to the Boardís voter registration records over the weekend, petitioners were able to establish that at least eight of the subscribing witnesses designated as ìNot Registeredî by the Board, in fact are registered voters. See Kaskel Aff. (App. Tab X); Mar Aff. (App. Tab Y); Podber Aff. (App. Tab Z); A. Derezeas Aff. (App. Tab V); G.Derezeas Aff. (App. Tab U); Bowen Aff. (App. Tab AA); Schwartz Aff. (App. Tab W); Mackey Aff. (App. Tab S). The reviewers preliminarily estimated that approximately 3,500 signatures were disallowed as a result of the unfounded objections to these subscribing witnesses.
Moreover, although Mr. De Francesco represented that the materials provided by the Board represent the full extent of the Boardís ìbackupî for its evaluation of the Signatures, this material is not even close to compliant with the Boardís own rules concerning objections to designating petitions. (App. Tab I).
In addition, in the course of separate conversations on September 12, both Mr. De Francesco and Mr. OíMalley indicated that the Board would refuse to provide petitioners access to the Boardís voter registration records on an extended-hour basis without a court order.
/s/ Robert A. Milne
Sworn to me this _____ day
of September, 1996.
______________________
Notary Public
Petitioners' appendix hereinafter is referenced at "App. Tab ___."
Petitioners do not concede that the 74,861 in fact is the total number of signatures submitted; as noted elsewhere, petitioners believe 75,214 is the number submitted.
In the Matter of the Application of JULIE VAN NESS individually and on behalf of all signers of a petition filed pursuant to Section 40 of the New York City Charter, and JULIE VAN NESS as Treasurer of SHELTER REFORM ACTION COMMITTEE, an unincorporated association,
Petitioners,
-against-
CARLOS CUEVAS, as City Clerk of the City of New York, and the BOARD OF ELECTIONS OF THE CITY OF NEW YORK,
Respondents,
For an Order pursuant to Article 16 of the Election Law, Article 78 of the Civil Practice Law and Rules, and 42 U.S.C § 1983, inter alia, declaring valid the initiative petition submitted by Petitioners.
Index No. 116570/97
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AFFIDAVIT OF ROBERT A. MILNE
------------------------------------------------------------------
STATE OF NEW YORK)
)ss.:
COUNTY OF NEW YORK )
ROBERT A. MILNE, being duly sworn, deposes and says:
I am counsel to the petitioners in the above-captioned matter, and I make this affidavit in support of petitioners' Verified Request for Emergency Relief.
On September 12, 1997, a Friday, I was informed that the City Clerk had rejected the Section 40 Charter Amendment initiative recently submitted by petitioners.
According to the letter I received that day from the Clerk (and a number of conversations I had that day with Edward F. O'Malley, General Counsel to the Clerk), the initiative petition was rejected because the Board of Elections (the "Board") had (at the Clerk's direction) "determined" that only 41,736 signatures were "valid," short of the 50,000 signatures required under Section 40, and because of certain vaguely stated objections to the substance of the petition.
The Board purported to have conducted a line-by-line analysis of the signatures contained in the petition, and determined that 33,478 signatures were invalid (out of the 75,214 originally submitted).
In a conversation with Mr. O'Malley on September 12, I requested immediate access to any and all documentation in the Boardís possession reflecting its review of the signatures. I also noted that I believed petitioners were entitled to specifications as to the basis of the objection to each contested signature, consistent in form and substance with the Board's own rules concerning objections to designating petitions.
I also informed Mr. O'Malley that petitioners do not concede that the Clerk, or the Board, has authority to question the substantive validity of signatures or the subject-matter of the petition, in the absence of a third-party objection.
With respect to documentation concerning the Board's review of the signatures, Mr. O'Malley directed me to Mr. Daniel De Francesco, Executive Director of the Board.
I promptly contacted Mr. De Francesco on the afternoon of September 12. In the course of the telephone call on September 12, Mr. De Francesco informed me that the Board was copying all of the ìworksheetsî and related materials in the Boardís possession reflecting its assessment of the signatures. This material was produced to petitioners at approximately 7:00 p.m. on Friday evening, September 12.
The material produced consisted of (1) four large boxes of ìworksheets,î upon which the Board reviewers noted any ìdeficienciesî they believed they found with the signatures, (2) reports purporting to tabulate the total objections on a per-volume, and grand-total basis (see Petitionersí Appendix, Tab N for a copy of these reports), and (3) instructions given to the Boardís reviewers for conducting the review of this petition. (See App. Tab O, for the instructions). In a telephone conversation I initiated on Sunday, September 14, Mr. De Francesco again stated that the material provided by the Board on Friday represented that it had produced ìeverything we haveî with respect to the evaluation of the petition. Indeed, he stated that the materials provided were better than the "specification sheets" the Board usually requires of third party objectors.
The instructions are set forth in full below:
1. Use Red Pencil Only.
2. Check Subscribing Witness First. Please note that the ED/AD is not required ó See Election Law Section 6-134 repealing this requirement.
3. If the Subscribing Witness is Not Valid, indicate the reason why, mark the sheet "SWNV" and mark ì0î valid on the lower left corner of the Page.
4. If the Subscribing Witness is valid, do a line-by-line; place a check mark next to any valid signature.
5. If a voterís status is ìXî, do not count the signature and treat as ëNRí.
6. If any signature is not valid, mark next to the non-valid signature one of the following symbols:
NR - Name and address of signator does not match a registered voter in New York City.
ILL - Name and/or address can not be determined to search for a voter in New York City.
OJ - Address of the signator is outside New York City.
TE - If the signature is dated before May 5, 1997 (120 days before September 2, 1997) mark "TE".
7. Write the total number of valid signatures on the lower left corner of the page.
8. Take extreme care not to knock out a signature twice ó once for "SWNV" and one for "NR".
9. The total number of valid signatures of each volume should be calculated and written on the lower left hand corner of the volume cover.
10. First Day to Circulate Petition -- May 5, 1997.
(App. Tab O).
Thus, according to the instructions, all actually-asserted objections would appear next to the signatures themselves or, in the case of an alleged invalid Subscribing Witness, a notation so indicating somewhere on the page.
In order to test the validity of the Board's assertion that approximately 33,000 signatures in fact had been contested by the Board, several people working under my direction carefully reviewed each ìworksheet,î and tabulated each objection actually noted. (In the case of objections to Subscribing Witnesses, my reviewers counted each signature on that page as contested).
The results of that review reveal that the grand total of signatures actually contested by the Board is only 21,557. This is far less than the 33,125 signatures that the Board purports to have objected to. (See Clerkís Reports, App. Tab N).
Thus, since the Board concedes that 74,861 signatures were submitted, this leaves over 53,304 signatures as to which the Board asserted no objection, well in excess of the 50,000 required by Section 40.
In conducting their review of the ìworksheets,î my reviewers noticed several blocks of missing pages.
Petitioners devoted at least 200 person-hours over the weekend (9/13-14) on evaluating respondentsí ìworksheets.î
In addition, despite not having access to the Boardís voter registration records over the weekend, petitioners were able to establish that at least eight of the subscribing witnesses designated as ìNot Registeredî by the Board, in fact are registered voters. See Kaskel Aff. (App. Tab X); Mar Aff. (App. Tab Y); Podber Aff. (App. Tab Z); A. Derezeas Aff. (App. Tab V); G.Derezeas Aff. (App. Tab U); Bowen Aff. (App. Tab AA); Schwartz Aff. (App. Tab W); Mackey Aff. (App. Tab S). The reviewers preliminarily estimated that approximately 3,500 signatures were disallowed as a result of the unfounded objections to these subscribing witnesses.
Moreover, although Mr. De Francesco represented that the materials provided by the Board represent the full extent of the Boardís ìbackupî for its evaluation of the Signatures, this material is not even close to compliant with the Boardís own rules concerning objections to designating petitions. (App. Tab I).
In addition, in the course of separate conversations on September 12, both Mr. De Francesco and Mr. OíMalley indicated that the Board would refuse to provide petitioners access to the Boardís voter registration records on an extended-hour basis without a court order.
/s/ Robert A. Milne
Sworn to me this _____ day
of September, 1996.
______________________
Notary Public
Petitioners' appendix hereinafter is referenced at "App. Tab ___."
Petitioners do not concede that the 74,861 in fact is the total number of signatures submitted; as noted elsewhere, petitioners believe 75,214 is the number submitted.
