2013-12-15 01:56:09 UTC
SOUTHERN DISTRICT OF NEW YORK
Thomas R. Stevens,
13 CIV 6104 (AJN)
Salvatore G. Caruso,
Daniel S. Szalkiewicz,
Board of Elections in the City of New York,
Eric Schneiderman Attorney General of New York
AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS
STATE OF NEW YORK :
COUNTY OF NEW YORK :
Samuel H. Sloan, being duly sworn, deposes and says
1. I make this affidavit in opposition to the motion to dismiss filed by the Board of Elections in the City of New York. The Board of Elections makes numerous factual statements in their extremely brief memorandum and ignores the serious factual issues in this case. For example, the memorandum states that Sal Caruso timely filed general objections and then timely filed specific objections. However, this asserts facts not in evidence and these facts are strongly disputed.
2. As I pointed out in my first pleadings and at every step along the way, the General and Specific Objections were not TIMELY filed. If you will look at the New York State Election Law, it governs the time within which these objections are to be filed. I waited at the front door to the New York City Board of Elections on the last days to file both the General and the Specific objections. When no objection had showed up by 7:30 PM, I went home. I waited until 8:00 PM on the last day. The objector had six days to file. Six days had already passed. Thus I saw no reason to wait longer.
3. I subsequently learned that Daniel S. Szalkiewicz had brought in objections at some later time about 9:00 PM that night. Even giving him the benefit of an extra day because the sixth day was a Sunday, he still was required to file the specific objections by 5:30 PM as the General Objections had been filed at 5:30 PM on the last day. Thus Daniel S. Szalkiewicz was three hours late in filing, as he filed at around 9:00 PM. It is being said that the New York State Law does not apply because by local rule in New York City filings are allowed up until midnight. I demand to see this local rule that says that New York State Law does not apply and the authority of the city to adopt rules in variance of state law.
4. New York State Election Law Section 6-154 Provides:
When such an objection is filed, specifications of the grounds of the objections shall be filed within six days thereafter with the same officer or board and if specifications are not timely filed, the objection shall be null and void. http://codes.lp.findlaw.com/nycode/ELN/6/6-154
5. In a very recent case involving Westchester County I believe, an objection was declared invalid because the objector had filed a few hours late. They seem to be claiming that the law in Westchester County does not apply to New York City. I would like to see the law on that.
6. The memorandum of the Board of Elections states that Sal Caruso filed these general and specific objections. How do they know this? Sal Caruso is a mystery man. He has never appeared before the New York City Board of Elections, nor at any of the hearings in this court case. Nobody knows what he looks like or that he even exists. There is no evidence that he is a citizen entitled to vote. The signatures on the Specific Objections are almost completely different from the signatures on the buff card and the general objections. It is obvious that the signatures are forgeries and the forger is none other than Daniel S. Szalkiewicz or somebody known to him.
7. I am demanding discovery and the right to take depositions of Sal Caruso and Daniel S. Szalkiewicz. I am sure that they will not show up at the depositions because the forgery is obvious.
8. The one person who has seen Sal Caruso is my process server, who served him with the order in this case. Recently, the Chairman of the Bronx Republican Party, John M. Greaney, had dinner in Throng's Neck with my process server in an attempt to influence the outcome of this court case. This dinner established what I had long suspected, that the real objector was not Sal Caruso but the Bronx Republican Party leadership. Mr. John Greaney berated my process server for serving the summons on Caruso. John Greaney also complained about the high legal fees they were having to pay to defend this case. This establishes that the Bronx Republican Party is paying Daniel S. Szalkiewicz to appear in this case. I have long been demanding from the beginning to know who is paying the legal fees of Daniel S. Szalkiewicz. Now we know.
9. In addition, the owner of the restaurant where this meeting and conversation took place also participated in the meeting with John M. Greaney and informed me of the contents, so I have two witnesses to this. This is a matter which should be investigated by the City and State Board of Elections and the Campaign Finance Boards. Any money paid by the Republican Party to Daniel S. Szalkiewicz to act as a hit man to knock me off the ballot is a campaign expenditure and must be reported. So far, it has not been reported. It is probably illegal for them to do this. All of the above arguments and contentions were made at the Hearing before the Board of Elections on July 30, 2013 and at the hearing before Judge Wooten on August 5, 2013. They were all summarily dismissed and were not taken seriously.
10. The transcript of the hearing on August 5, 2013 has been made and served on all of the parties, including the US Attorney. There are no other transcripts as there was no hearing of any kind in any other court. The transcript shows that when the petitioner objected to the fact that Salvatore Caruso was obviously a front man and the attorney appearing should be required to disclose who the real clients and objectors were, the court responded as follows (See Transcript Pages 2-3):
1. MR. SLOAN: But one thing I do object to is it's obvious that Mr. Caruso is a front man and I would like to know who's paying Mr. Szalkiewicz's legal fees because he's obviously got some others behind him who are doing this.
2. THE COURT: That's a request by you, sir?
3. MR. SLOAN: Yes, it is.
4. THE COURT: Your application is denied. We've never done that. In 30 years on the bench we've never, never -- I'm sorry. In five years on the bench and 27 years as an election law attorney, we've never had a case where that application's been granted. You have an exception, sir.
11. With all due respect, although it has never been done in the past, it should be done now. Candidates are required to disclose everything about their campaigns. They are required to disclose the names and addresses of their contributors and how much each one gave. If they advertise in the media, on radio, on TV or in the newspapers, they must provide copies of their ad material. In short, they are heavily regulated. Now that this case is in court I have the right to take depositions to discover these matters and to have a trial or hearing on this.
12. On the day after the submission date for these purported specific objections, a clerk by the name of “Jimmy” who works at the front desk of the board of Elections at 32 Broadway 7th Floor and who apparently been present on the evening in question told me that “no specs have been filed” meaning that no specific objections had been filed, meaning that the objections purportedly filed by Daniel S. Szalkiewicz were deemed invalid. Over the next few days, as I inquired, they went back and forth on this, apparently not able to make up their minds as to whether the objections were valid or not. I do not know what was troubling them, but I also found irregularities in the Specific Objections. For one thing, all 500 pages of the specific objections were essentially photocopies of each other. Daniel S. Szalkiewicz simply made one, ran it through the copier, printed 500 sheets and then marked each one with a different page number and made other markings so that they looked a little different from each other. He obviously never checked the buff cards on file with the Board of Elections. We know this because his objections claimed that none of my petitioners were registered to vote, whereas in reality all of them are registered to vote in New York State and had he checked the buff cards he would have known that.
13. I went to the Bronx Board of Elections and spoke to Kevin Foire who was the supervisor given the job of checking the objections. He showed me the specific objections that had been filed by Daniel S. Szalkiewicz. The signature page was obviously a photocopy, and therefore was invalid. I raised this issue at a subsequent hearing before the New York City Board of Elections and I was informed by the chairman that the signature page cannot be a photocopy. It must be an original manual signature. Thus, the specific objections should have been ruled invalid. This should be the subject of a hearing before this court.
14. The memorandum filed by the Board of Elections here says nothing other than to cite one case, which is Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011). However, that case is distinguishable from the case here, in many respects. The Maslow case was a hypothetical case for declaratory relief. The courts should have dismissed it for lack of standing, as Maslow has never run for election and has never been kicked off the ballot. The court in that case stated: “The Constitutional Rights of These Plaintiffs have not been violated”. I agree with the Maslow decision. The constitutional rights of Those Plaintiffs were not violated, because they never ran for election. What they were claiming was that Lori Maslow had the constitutional right to Associate with the Republican Party even though she had never joined that party. Her claim was that if her husband Aaron Maslow wants to run for election as a Republican she should be allowed to circulate petitions for him as a Democrat. However, she never actually did this. Thus, the case was purely hypothetical.
15. I have already presented my arguments on this point in the Appellant's Brief I filed in the Second Circuit Court of Appeals. Rather than repeat myself here I am attaching a copy of my Appellant's brief to this affidavit.
16. There is a fundamentally corrupt practice which should be addressed by the court in this case. The Republican and Democratic Parties have control over the board of elections. All paid positions with the Board of Elections are divided equally between the Republicans and the Democrats. There are thousands of jobs in the New York City Board of Elections alone. These jobs are split between the Republicans and the Democrats. For every Democratic job there must be one Republican Job. Other parties such as Green, Conservative, Working Families and Independence do not get any jobs.
17. As part of their jobs, all the Democrats who are employed by the Board of Elections must go out and collect signatures for the Democratic Candidates and campaign for them and all the Republicans who work for the Board of Elections must collect signatures for the Republican Party Candidates who have been designated by the leadership, if they want to keep their paid jobs.
18. The Republican Party Candidates who are elected as judges must decide the court cases the way their party tells them to decide, if they want to be nominated and to run in the next election. Indeed, the case of Lopez-Torres III or N.Y. State Board of Elections v. Lopez-Torres, 552 U.S. 196, 128 S.Ct. 791, 798, 169 L.Ed.2d 665 (2008) involved a person who was elected as a judge one time but who was not re-nominated and could not run again because she had not decided cases or voted the way her leadership had told her to.
19. All this explains why the Republican Party leadership would send a hit man like Daniel S. Szalkiewicz to knock me and my slate of candidates off the ballot, not because they considered us to be a threat but because we were not nominated by them and thus we were a threat to their control of the party and all the money and jobs that this control brings them.
20. The memorandum filed by the Board of Elections makes a number of statements about what the Objector, Mr. Caruso, said. Actually neither Mr. Caruso nor Daniel S. Szalkiewicz said any of those things. Those were what the Board of Elections said. Mr. Caruso said nothing as we have not seen nor heard from him. Mr. Daniel S. Szalkiewicz said a lot however. I have the tape audio of what he said and can play it for the court. Daniel S. Szalkiewicz said that all the signatures were bad, none of the witnesses were registered to vote, everything was fraudulent, all signatures were forgeries, nothing was done right. In short, he was throwing dirt at a wall and hoping that something sticks. I believe that once the Board of Elections should have realized what he was doing and thereby shifting the burden of proof, requiring me and the board of elections to prove that the petitions were valid, his objections should have been thrown out and the names of my slate of candidates should have been allowed to appear on the ballot.
21. In short and in summary, the motion to dismiss should be denied and this case should proceed to trial on all of these factual and legal issues.
22. I was a candidate for Mayor of the City of New York. Richard Bozulich was a candidate for Comptroller of the City of New York. Thomas R. Stevens is a candidate for Public Advocate of the City of New York. We are all registered Republicans and thus seek to be on the ballot as Republican party candidates although none of us are members of any insider clique or group within the Republican Party. We are outsiders as far as the Republican Party is concerned.
23. Designating petitions were circulated in accordance with New York Election Law nominating us as candidates for the above mentioned offices. These petitions were filed with the Board of Elections in the City of New York at 11:50 PM on July 11, 2013. Under the new rules, it is required that petitions with 3750 or more valid signatures be filed. More than enough of the required number of signatures were filed.
24. On July 15, 2013 at 5:35 PM an objector named Sal Caruso filed a “General Objection” with the New York City Board of Elections. These objections were filed one day late as New York Election Law requires that they be filed within three days (not within three business days) of the filing of the petitions. A copy of this General Objection is annexed hereto and Marked Exhibit A.
25. On July 22, 2013, Sal Caruso filed “Specific Objections” with the Board of Elections in the City of New York. These objections were filed one day late as New York Election Law requires that they be filed within six days after the General Objections were filed (not within six business days). A copy of the cover sheet of these Specific Objections is annexed hereto and Marked Exhibit B.
26. The Sal Caruso who filed these General Objections and Specific Objections was and is represented by attorney Daniel S. Szalkiewicz, PC, 280 Riverside Drive, New York, NY 10025.
27. These Objections were facially and obviously invalid for numerous reasons and thus should not have been considered by the Board of Elections in the City of New York.
28. Rather than provide line-by-line specific objections, the objectors claimed that there were 4269 signatures but only 69 were deemed good and the other 4200 were false. They simply marked virtually all of the approximately 500 pages of petition sheets with SWNR, SWNE and marked virtually all of the lines with NR, NE. SWNR means Subscribing Witness not Registered. SWNE means Subscribing Witness not Enrolled.
29. It was quickly established that this was not true. All of the Subscribing witnesses are and were registered to vote in the State of New York. Once this was established, it should have been evident that the Specific Objections were spurious and frivolous and the objectors had never bothered to look up the actual signature cards on file with the Board of Elections. The objectors simply sought to require the Board of Elections and the candidates to do all the work to prove the validity of the petitions. This shifting of the Burden of Proof was improper and should not have been allowed.
30. Nevertheless, the Board of Elections went ahead with validating the petitions, expending considerable time and effort and resources to do so. The end result was that only 112 of the signers were found to be not registered to vote and only 59 of the more than 4000 signers were found to be not registered as Republicans. These numbers were completely different from the numbers claimed by the objectors.
31. However, the Board of Elections found that in the cases of 3905 of the signatures, although the signers were registered Republicans, the subscribing witnesses were not registered Republicans.
32. It is an interpretation of New York Election although not specifically stated in the law that the witness to the petition must also be in the same political party as the signers. The petitioners here were not aware of this interpretation at the time of circulating these petitions. Petitioners also believe that this is not strictly speaking what the law says and in any case is Constitutionally invalid in that it deprives the signers and the candidates of the Constitutional Right to Freedom of Association and has no rational basis. It deprives the signers of the petitioners the right to nominate candidates of their own choosing.
33. The Specific Objections are not valid because they contain a forgery. What purports to be the signature of Salvatore Caruso at the bottom of the Specific Objections is plainly and obviously not the signature of the person who signed the General Objection, nor it is the signature of the person who signed the Voter Registration Card of Sal Caruso. Other than the initial letter S there is no similarity between the signatures.
34. There can be little doubt that the person who forged the signature of Sal Caruso is the attorney who filed the objections, Daniel S. Szalkiewicz, PC, 280 Riverside Drive, New York, NY 10025.
35. Accordingly, petitioner suggests that this matter be referred to the DA regarding this forgery. Respondents Daniel S. Szalkiewicz and Salvatore G. Caruso should be required to appear and submit their signatures for handwriting analysis and be required to testify as to whom signed these general and specific objections.
36. An article in the New York Daily News dated July 22, 2013 stated that 20 pages of signature petitions for Republican Party Candidate for Comptroller John Burnett were “accidentally” shredded by workers at the Board of Elections but that the candidate was allowed to reconstruct these 20 pages so that his name will appear on the ballot. According to this article, this shredding pf the signatures was related to a turf war between GOP insiders Chairman Craig Eaton and State Senator Martin Golden and that the appointment of Board of Elections Commissioner Simon Shamoun was the result of a “power grab” by a faction of the Republican Party. This same person was among those who voted at a Board of Elections hearing on July 29, 2013 not to allow the names of above petitioners Sloan, Bozulich and Stevens to appear on the Citywide ballot. In view of these obvious irregularities and the obvious conflicts iof interest. This court should order that the names of Sloan, Bozulich and Stevens to appear on the ballot to allow the Republican general electorate decide these issues especially since Sloan, Bozulich and Stevens are complete outsiders and not part of any Republican insider clique or group. A copy of the Daily News Article is annexed hereto as an exhibit.
37. Section 132 (2) of New York Election law provides the following:
2. There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for. However, in the case of a petition for election to the party position of member of the county committee, residence in the same county shall be sufficient. Such a statement shall be accepted for all purposes as the equivalent of an affidavit, and if it contains a material false statement, shall subject the person signing it to the same penalties as if he or she had been duly sworn. The form of such statement shall be substantially as follows:
STATEMENT OF WITNESS
I,..................... (name of witness) state: I am a duly qualified voter of the State of New York and am an enrolled voter of the....................... party. I now reside at....................
38. It is apparently the interpretation of the Board of Elections in the City of New York that the above provision implies that the party of the subscribing witness must be the same as the party of the signer of the petition. However, the above provision does not actually say that. It merely suggests but does not require that the subscribing witness disclose the name of any political party he belongs to, which may be Democrat, Republican, Socialist, Communist, Blank or any other. Nowhere in this provision or anywhere else in New York Law is there a requirement that the mere witness to the signing of a petition be a member of any particular political party. If there were such a provision it would be constitutionally invalid as depriving the right of Freedom of Association and depriving the general membership of the right to chose the candidates they want to run for election.
39. Petitioners are new candidates who have never appeared on the ballot before in any election. We have never circulated Designating Petitions for any party or election previously. Politics in general in New York City and politics in the Republican Party in particular are long dominated by machine politics and by insiders who do not allow outsiders in unless they buy their way in as for example did the current mayor and one of the leading Republican Party candidates. At the same time the Republican Party has been demolished in every recent election and cannot get anybody elected. Nevertheless, they jealously guard the right to control who gets their nomination to insure that only their insider losers get on the ballot. This should not be allowed and the courts should start the opening up of the election process by allowing these three candidates on the ballot.
WHEREFORE, for all of the reasons set forth above, this motion to dismiss should be denied.
Samuel H. Sloan
Sworn to Before me this 13th
Day of December 2013
Samuel H. Sloan
1664 Davidson Avenue, Apt. 1B
Bronx NY 10453
STATE OF NEW YORK )
COUNTY OF NEW YORK )
I, the undersigned, the petitioner named in the foregoing petition, being duly sworn, says:
I have read the foregoing petition subscribed by me and know the contents thereof and the same is true of my own knowledge, except as to those matters herein stated to be alleged upon information and belief and as to those matters I believe it to be true.
Signature of Petitioner
On the 13th Day of December, 2013 before me personally came Samuel H. Sloan to me known to be the person described herein and who executed the foregoing instrument. Such person duly swore to such instrument before me and duly acknowledged that he executed the same.
Affirmation of Service
I hereby affirm that on December 13 7, 2013 I served the within Opposition to the Motion to Dismissin Sloan vs. Caruso, Case No. 13-3328 by mailing to the following
Daniel S. Szalkiewicz
Attorney for Self and Salvatore Caruso
7 Dey Street, Suite 900B
New York NY 10007
New York City Law Department
100 Church Street
New York NY 10007
Stephen H. Richman
Board of Elections in the City of New York
32 Broadway, 7th Floor
New York NY 1004
Richard P. Dearing
Deputy Solicitor General
Attorney General of New York
New York NY 10005
In addition, I served the within brief in both text and PDF format to the following email addresses:: "Kitzinger Stephen (Law)" <***@law.nyc.gov>, "Dolgow Pamela (Law)" <***@law.nyc.gov>, "Koerner Leonard (Law)" <***@law.nyc.gov>, "Natrella Elizabeth (Law)" <***@law.nyc.gov>, and to the Solicitor General at the New York Attorney General's Office at Richard Dearing <***@ag.ny.gov>, <***@ag.ny.gov> and David Lawrence III <***@ag.ny.gov>, and to defendants Salvatore Caruso and Daniel S. Szalkiewicz, by email to Daniel S. Szalkiewicz <***@lawdss.com>.
Samuel H. Sloan