Opinion
0700010/2008.
August 15, 2008.
Upon the foregoing, petitioners Dawn Robinson, Anna M. Robinson and Annette M. Robinson, move by order to show cause, for an order invalidating a petition purporting to designate respondent-candidate Cenceria P. Edwards (Edwards or the candidate) for the public office of Member of the Assembly from the 56th Assembly District and the party position of Female Member of the Democratic State Committee in the 56th Assembly District in the Democratic Party Primary Election to be held on September 9, 2008. Petitioners argued on the court's initial return date that Ms. Edwards failed to interpose an answer by 9:30 AM as required by the rules of the court. Upon an oral application, the court gave Ms. Edwards until August 1, 2008 to submit an answer to the petition, which she did, thereby preserving her opposition to the invalidating petition. Counsel for Ms. Edwards subsequently moved to dismiss petitioners' bill of particulars and offer of proof arguing that they lacked specificity. The court denied this motion on the record upon finding that petitioners' bill of particulars and offer of proof were sufficiently specific and in compliance with the court's rules, especially considering the severe time constraints concerning election law proceedings.
Petitioners seek to invalidate the designating petition of respondent candidate on various grounds. They make several allegations in this regard in their bill of particulars, including but not limited to the following: (i) that several of the subscribing witnesses who purportedly witnessed various sheets did not see each and every signatory sign the designating petition and committed and/or permitted acts of forgery; (ii) that in certain instances subscribing witnesses misrepresented the nature of the document to persons to induce them to sign the petition; (iii) that Ms. Edwards' immediate family members were so closely involved in obtaining the signatures in an improper manner that the candidate should be charged with knowledge of the fraud and/or wrongdoing; (iv) that the campaign coordinator(s), the candidate and close family members asked people to witness signatures not actually collected by them; and pervasively failed to give proper instruction or purposely gave faulty instruction to subscribing witnesses to obtain a sufficient number of signatures.
Background Facts
A designating petition containing a sufficient number of signatures was timely filed on or about July 10, 2008 with respondent Board of Elections in the City of New York (the Board) on behalf of Ms. Edwards. Petitioners-objectors Dawn Robinson and Anna Robinson filed general objections, followed by specifications of objections on or about July 21, 2008, to Ms. Edwards' designating petition. Five hundred valid signatures are required to place the candidate on the ballot for both of the positions she seeks. The Board found that Ms. Edwards' petition contained 628 valid signatures, or 128 more than the number required. Special referees appointed by the court conducted a line-by-line review of the specifications of objections and invalidated an additional 15 signatures, thus reducing the number of valid signatures to 613. Ms. Edwards still had a sufficient number of valid signatures to be placed on the ballot.
The court notes that all references in this decision to the number of signatures on any particular petition page are to the validated signatures after the line-by-line review conducted by the court.
Trial
Based upon a review of the credible evidence during the hearing, establishing various unexplained and unrebutted irregularities pertaining to certain petition pages, the court finds that the signatures taken by subscribing witnesses Gail Campbell, Mary Jackson, Davette Reid, Chy Sprauve, Rosa Edwards, the candidate's mother and Deon Jones, the candidate's daughter, must be invalidated.
Subscribing Witnesses Who Appeared
Gail Campbell
Gail Campbell, an activities' coordinator at a nursing home located in the 56th Assembly District, testified that she was approached by Deon Jones, and asked if she could circulate the petition among the residents at the nursing home. Ms. Campbell is listed as the subscribing witness on petition pages 27, 28, 29, 30 and 31. Notably, Ms. Campbell admitted that she did not actually witness all of the signatures that appeared on at least one of the pages. Indeed, Ms. Campbell testified that it was her practice to leave the petition sheets with residents of the nursing home and collect said sheets at the end of the day. Additionally, although Ms. Campbell claimed that she did in fact sign the subscribing witness section of each of these five pages, she testified that she did not fill in the words: "Brooklyn, New York" in the address section of the subscribing witness statement. Further, she unequivocally stated that such information was not filled in by another, in her presence, prior to her signing said sheets. Moreover, Ms. Campbell testified that the initials "GC" that appeared on her petition sheets were not in fact written by her.
Mary Jackson
Mary Jackson testified that she volunteered to help Ms. Edwards get signatures and that Deon Jones dropped the blank petition sheets at her home. Ms. Jackson is listed as the subscribing witness on pages 32, 33 and 35 of the petition. She testified that it was her signature in the subscribing witness statement, but that she did not write in the words: "Brooklyn, New York." Ms. Jackson further testified that she did not insert the number 9 in the number of signatures section on page 32 prior to signing the witness statement. Nor did she recall seeing Ms. Jones insert the information in her presence. Moreover, the addition of this information subsequent to her signing the witness statement was not initialed by Ms. Jackson.
Ms. Jackson also testified that she had signed her own signature on page 32, a point that Ms. Jones noticed, and that Ms. Jones instructed her to cross it out and initial it, explaining that she could not witness her own signature. According to Ms. Jackson, Ms. Jones then gave her page 42 of the petition to sign. Ms. Jackson claimed that Ms. Jones was the only person present when she signed the petition. The court took judicial notice of the fact that the subscribing witness on page 42 was Rosa Edwards, the candidate's mother, not Ms. Jones, the candidate's daughter.
Election Law § 6-134 (9) provides that "[a] person other than the subscribing witness may insert the information required by the subscribing witness statement, provided that all subscribing witness information required above the subscribing witness' signature is inserted either before such subscribing witness signs the statement or in the presence of such subscribing witness." Here, the credible testimony by Ms. Campbell and Ms. Jackson, revealed that neither had inserted the words "Brooklyn, New York" on the petition sheets that they witnessed prior to signing those sheets, and that such information was clearly inserted by another outside of their presence. The Court of Appeals has held that "[t]he addition of this information subsequent to the signature of the subscribing witness by another in the witness' absence is a nullity, rendering the witnessed signatures invalid" ( Sheldon v Sperber, 45 NY2d 788, 789; see Liepshutz v Palmateer, 65 NY2d 965, 966-967). Accordingly, the remaining valid signatures on the pages witnessed by Ms. Campbell and Ms. Jackson, which amount to 33 signatures in total must be invalidated.
The court notes that after a line-by-line review of the specifications of objections to the pages witnessed by Campbell and Jackson there were 17 valid signatures remaining on the pages witnessed by Campbell and 16 valid signatures remaining on the pages witnessed by Jackson.
Subscribing Witnesses Who Failed to Appear
Adverse inference
It is well settled in election cases that the failure of certain witnesses to appear, in response to subpoenas, justifies the court's conclusion that their testimony would have supported petitioners' contentions ( see Haas v Costigan, 14 AD2d 809, 810 [holding that courts should not favor or reward prospective candidates who seek to stultify the administration of justice by refusing to produce witnesses subject to their control], affd 10 NY2d 889; Haskell v Gargiulo, 51 NY2d 747, 748 [court upheld in concluding based on the factual determinations and the inferences expressly drawn therefrom that all the petitions with signatures gathered by the subscribing witnesses involved in such fraud and irregularities were tainted and should be invalidated]; Martinez v Olmedo, 153 AD2d 720; Bennett v Phillips, 175 AD2d 934 [holding that Supreme Court was correct in drawing an adverse inference from appellant's failure to produce numerous subscribing witnesses]; Adams v Klapper, 182 Misc 2d 51, 53, affd 264 AD2d 696; Martinez v Olmedo, 153 AD2d 720, lv denied 74 NY2d 609).
Davette Reid
Wayne Slater and his wife, Joyce Slater, are both signatories on sheet No. 53 of the Edwards' petition which lists Davette Reid as the subscribing witness. The Slaters both testified that Mr. Ray Haskins, a close friend of theirs, came to their home, unaccompanied by anyone else, to procure their signatures, and that Mr. Haskins was the only person who witnessed their signatures to the petition, and not Ms. Reid. Ms. Reid's failure to appear to rebut the Slater's testimony causes the court to infer that her testimony would have been adverse to Ms. Edward's position and to thus invalidate the remaining 14 valid signatures witnessed by Ms. Reid on pages 50, 51, 52 and 53 of the petition.
Chy Sprauve
The court casts a similar adverse inference with respect to the actions of the subscribing witness, Chy Sprauve. Ms. Yolond Owes, a neighbor of Ms. Edwards, is a signatory on page 99 of the petition. Ms. Owes testified that Ms. Edwards, accompanied by her younger daughter and other unidentified individuals, approached her to sign the petition and that she signed her name on the petition. In addition, she admitted against her own interest, that she signed her mother's name, Renee Williams, on the page as well. Chy Sprauve is the subscribing witness on the bottom of this page, page 99, and represented, by signing the subscribing witness statement, that each person who signed the page did so in her presence and identified himself or herself to be the individual who signed. Crediting the testimony of Ms. Owes about her signing her mother's name, it is clear that the purported signature of Renee Williams was a forgery. Indeed, Ms. Owes' signature, and the purported signature of her mother are written in the same handwriting and Ms. Edwards has not disputed this point. Absent a plausible explanation on behalf of Ms. Sprauve regarding the circumstances surrounding the forged signature, it would appear prima facie that Ms. Sprauve had participated in the irregularity, thereby invalidating all signatures taken by her. Thus, as Chy Sprauve failed to appear and rebut this testimony, despite being subpoenaed and served with an order to show cause seeking to hold her in contempt, the court must infer that her testimony would have been adverse to Ms. Edwards' position ( see Haskell, 51 NY2d at 748; Bennett, 175 AD2d 934; Haas, 14 AD2d at 810). The court thus must invalidate the 43 valid signatures taken by Chy Sprauve.
Rosa Edwards
With respect to Rosa Edwards, the subscribing witness on pages 42 and 43 of the petition, the court credits the testimony of Mary Jackson that Deon Jones witnessed her signature, not Rosa Edwards, who was listed as the subscribing witness to that page. The court notes that Rosa Edwards, the candidate's mother, did not appear to testify even though subpoenaed to appear and served with an order to show cause seeking to hold her in contempt. As Rosa Edwards did not appear to rebut Ms. Jackson's testimony, the court must infer that Deon Jones, and not Rosa Edwards, witnessed Ms. Jackson's signature ( see Martinez, 153 AD2d at 720). The court thus invalidates the remaining 11 valid signatures taken by Rosa Edwards.
Deon Jones
Lastly, based upon the credible evidence presented at trial, the court must invalidate the signatures taken by the candidate's daughter Deon Jones, who is a subscribing witness on several petition pages. James Blackwell, a signatory whose name appeared twice on the petition (pages 9 and 127) testified unequivocally and repeatedly during the trial that the signature on page 127, at line 9, purporting to be his, was not in fact his signature. Deon Jones is listed as the subscribing witness on this page. In addition, Mary Jackson testified that it was Deon Jones who procured her signature, yet Rosa Edwards is listed as the subscribing witness to Jackson's signature. Moreover, both Campbell and Jackson testified that they did not place the words "Brooklyn, New York" in the subscribing witness statement prior to signing them and giving them to Deon Jones.
The court notes that the testimony presented revealed that Ms. Jones and Ms. Edwards live in the same building and speak on a daily basis. Moreover, the testimony demonstrated that Ms. Jones played an integral role in the petitioning process including acting as the de facto petition coordinator and participating in the line-by-line review of the specifications of objections to Ms. Edwards' petition. Accordingly, it was incumbent on Ms. Jones to appear and refute the testimony regarding irregularities contained on various petition sheets where she acted as a subscribing witness and others which contained the insertion of information after signed by the subscribing witness and given to Ms. Jones. As Deon Jones, a witness clearly under the control of Ms. Edwards, failed to appear, despite being subpoenaed and served with an order to show cause seeking to hold her in contempt, the court must infer that she would have testified adverse to the Ms. Edwards' position ( see Martinez, 153 AD2d at 720 [adverse inference drawn where several subscribing witnesses under the control of the appellant who were subpoenaed did not appear at the hearing]; see also Haskell, 51 NY2d at 748; Bennett, 175 AD2d 934; Matter of Haas, 14 AD2d at 810 [holding that even in the absence of a subpoena it becomes the moral and legal duty of respondent to produce a subscribing witness under their control to refute irregularities contained on petition sheets where they acted as a subscribing witness]). Furthermore, Ms. Edwards did not explain under oath why her daughter Deon Jones was outside her control, nor did she provide an adequate explanation regarding whether she spoke to her daughter regarding the subpoena and order to show cause served upon her. The court thus invalidates the 139 valid signatures taken by Deon Jones.
Conclusion
The credible testimony of James Blackwell, Gail Campbell, Mary Jackson, Yolond Owes and Wayne and Joyce Slater revealing various irregularities pertaining to the signature collecting process involving several subscribing witnesses required Ms. Edwards to rebut this showing. Her failure to produce the needed witnesses allows the court in these circumstances to draw the adverse inferences discussed above.
The court further notes that the application of this adverse inference is especially pertinent in this case inasmuch as some of the subscribing witnesses were Ms. Edwards' immediate family members and presumably under her control. Moreover a majority of the subscribing witnesses failed to appear despite being served with a subpoena and an order to show cause seeking to hold them in contempt. In addition, contrary to Ms. Edwards' contention, the petitioners need not establish their case by clear and convincing evidence before any adverse inference can be drawn. Rather, once evidence has been presented calling into question the veracity of a subscribing witness, and said subscribing witness fails to answer a subpoena or order to show cause seeking contempt, an adverse inference may be drawn and the adverse inference may serve to aid in establishing petitioners' clear and convincing evidentiary burden.
Special referees appointed by the court, as previously noted, conducted a line-by-line review of the specifications of objections. The referees found that the Edwards' petition contained 613 valid signatures. However, based upon the various unrefuted irregularities discussed above, the court must invalidate the 17 signatures collected by Gail Campbell, the 16 signatures collected by Mary Jackson, the 11 signatures collected by Rosa Edwards, the 14 signatures collected by Davette Reid; the 43 signatures collected by Chy Sprauve and the 139 signatures collected by Deon Jones. This results in the invalidation of a total of 240 signatures, leaving only 373 valid signatures remaining, which is below the 500 valid signatures needed for the positions Edwards seeks ( see Liepshutz v Palmateer, 65 NY2d 965, 966-967 [court struck 253 of the designating petition's 528 signatures, leaving an insufficient number of signatures to validate the petition]; Harfmann v Sachs, 138 AD2d 550, 550-551).
Edwards' Validating Proceeding
The court also notes regarding Ms. Edwards' validating petition that an issue was raised concerning the allegedly defective nature of the petition verification. This court has considered the arguments made by counsel for all parties on this issue and hereby concludes that Ms. Edwards has presented a defectively verified petition. It is well settled that an attorney may not verify a petition "where the attorney is a party or person beneficially interested in the proceeding" ( In re Herkimer Republican Party, 119 Misc. 2d 801, 807; see CPLR 2106 ; Schutzer v Suss-Kolyer, 57 AD2d 613; Matter of Flaton v Caso, 86 Misc 2d 695, mod on other grounds 54 AD2d 752; Fitzgerald v Willes, 83 Misc 2d 853). Thus, since the validating proceeding has not been brought by a properly verified petition, it is procedurally defective and must be dismissed ( see Tenneriello v Board of Elections of City of New York, 63 NY2d 700, 701; Goodman v Hayduk, 45 NY2d 804; Frisa v O'Grady, 297 AD2d 394).
CPLR 2106 provides: [t]he statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.
Even assuming that the validating petition was not procedurally defective, Ms. Edwards, in any event, would still not have a sufficient number of valid signatures to place her name upon the ballot. The court notes in this regard that a line-by-line review by court referees of the objections that the Board had ruled "as specified" resulted in a finding of only 51 additional valid signatures. Since this court has determined that Ms. Edwards has 373 valid signatures remaining, the addition of 51 more signatures, resulting in 424 valid signatures, is still 76 signatures fewer than the number required.
It is therefore ORDERED that the petition to invalidate is granted, and the petition to validate is dismissed.
It is further ORDERED that the respondent Board of Elections of the City of New York shall remove from the ballot for the September 9, 2008 primary election the name of Cenceria P. Edwards for the public office of Member of the New York State Assembly from the 56th Assembly District and the party position of Female Member of the Democratic State Committee from the 56th Assembly District.