(CITE AS: 444 F.SUPP. 906)
Calvin WILLIAMS, Gilberto Gerena Valentin, Salvador Cartagena,
Midge Brown, Felix Berrios, and Antonio Martinez, on their own
behalf and on behalf of all others similarly situated,
Salvatore SCLAFANI, Herbert J. Feuer, Alice Sachs, Charles A.
Avarello, Elrich A. Eastman, Elizabeth A. Cassidy, Matteo Lumina,
Joseph J. Previte, Anthony Sadowski, and James Bass, Commission
ers of the Board of Elections in the City of New York, as Members
of, and constituting, the said Board of Elections,
State of New York, Ramon S. Velez, Stephen Kaufman, and Hon.
No. 77 Civ. 4355.
United States District Court, S. D. New York.
Jan. 24, 1978.
JOHN C. KLOTZ, New York City, for plaintiffs Gilberto Gerena
Valentin, Felix Berrios and Antonio Martinez; Michael R. Lanzar
one, New York City, Robert Schmukler, Brooklyn, N. Y., of coun
W. Bernard Richland, Corp. Counsel, New York City, for Bd. of
Elections in the City of New York; Gary R. Tarnoff, Leonard
Koerner, Patrick F. X. Mulhearn, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, New
York City, for intervenor-defendant State of New York; Francis
R. Angelino, George D. Zuckerman, New York City, of counsel.
Bleifer & Yalkut, P. C., New York City, for intervenor-defend
ant Ramon S. Velez; Paul E. Bleifer, Theodore E. Teah, New York
City, of counsel.
ROBERT J. WARD, District Judge.
On November 18, 1977, a three-judge court granted summary
judgment for defendants on the Voting Rights Act claim of plain
tiffs Gilberto Gerena Valentin ("Valentin") and Felix Berrios
("Berrios") and granted plaintiffs leave to file a second amend
ed complaint adding a '1983 claim and another plaintiff, Antonio
Martinez ("Martinez"). Plaintiffs Valentin, Berrios and Marti
nez and intervenor-defendant Ramon S. Velez ("Velez") now cross-
move for summary judgment on the '1983 claim. For the reasons
hereinafter stated, plaintiffs' motion for summary judgment is
granted and Velez' cross-motion is denied.
FACTUAL BACKGROUND [FN1]
When this action was commenced, intervenor-defendant Velez was
the Democratic incumbent New York City Councilman representing
the 11th Councilmanic District in the South Bronx. He and
plaintiff Valentin vied for the Democratic nomination for that
position on the November 8, 1977 ballot by running in the prim
ary election held on September 8, 1977. As a prerequisite to
placement on the primary ballot, the candidates had to make a
minimum showing of voter support. The showing required in this
case was 1500 signatures on designating petitions. The period
for collecting these signatures was June 7, 1977 to July 7,
Sometime prior to the signature-gathering period, plaintiff
Valentin communicated with the Board of Elections in the City of
New York ("the City Board of Elections" or "City Board") to
inquire whether persons registering on the street pursuant to
New York's recently enacted mail registration statute, New York
Election Law '153 (McKinney Supp.1976), could simultaneously sign
his designating petitions. It is undisputed that he was in
formed by Ms. Betty Dolen, Executive Director of the City Board
of Elections, that street registrants could validly sign a
designating petition so long as the registration was stamped in
at the City Board of Elections on or before receipt of the
designating petition at the City Board. There is also no dispute
that Ms. Dolen was convinced that she was giving the correct
interpretation of what was permissible under the new mail regis
tration statute and, accordingly, she consistently gave this
advice to whoever inquired about petition-gathering. [FN2]
This advice was also given to candidates, including Valentin, by
Ms. Beatrice Berger, Chief Clerk of the Bronx Office of the
City Board of Elections.[FN3]
Valentin followed the instructions of the City Board of Elec
tions with respect to simultaneous signing of mail registrations
and designating petitions, collected more than the required 1500
signatures, and submitted the designating petitions to the City
Board. On August 1, 1977, the City Board by formal resolution
validated Valentin's designating petitions over the objection of
Velez that the 343 signatures of street registrants should be
invalidated because they "signed before registration" ("SBR's").
A number of suits were thereupon commenced in New York State
Supreme Court by various candidates challenging inter alia the
validity of SBR's. On or about August 5, 1977 the City Board of
Elections changed its position on the validity of SBR's after
being advised by the State Board of Elections that its earlier
position was erroneous.[FN4] Thereafter, on August 22, 1977, a
Justice of the State Supreme Court invalidated the 343 SBR's on
Valentin's designating petitions. Velez v. Board of Elections
and Valentin, Index No. 14399/77 (Sup.Ct., Bx. Co.). That
brought Valentin below the 1500 required signatures; the State
Court therefore directed that Valentin's name be removed from
the primary ballot.[FN5]
The State Court's decision regarding the SBR's was based on its
adoption of the report of Special Referee Lloyd I. Paperno.
That report had concluded that the interpretation of the mail
registration statute which Dolen and Berger had been publicly
disseminating "would not be binding upon the court in any event
inasmuch as they pertain to the interpretation of the statute."
[FN6] Similarly, in the related case of Cartagena v. Board of
Elections, Index No. 14489/77 (Sup.Ct., Bx. Co.), Justice
William P. McCooe concluded, in a decision dated August 22,
1977, that the oral opinion of the Executive Director of the
City Board of Elections was of no force and effect for two rea
sons. First, he concluded that the oral advice was inconsistent
with Sections 153(7) [FN7] and 135 [FN8] of the New York Elec
tion Law which he construed to require that the signatory actu
ally be enrolled as a voter at the time of signing the designat
ing petition. Second, he concluded that the oral advice, in
addition to being wrong, was unauthorized because only the State
Board of Elections is authorized to make regulations [FN9] and
such regulations have force and effect only when written and
filed with the Secretary of State.[FN10]
On August 25, 1977, the Appellate Division, First Department,
unanimously affirmed without opinion the Supreme Court determi
nation. The New York Court of Appeals denied leave to appeal on
August 30, 1977. Valentin has filed a notice of appeal to the
United States Supreme Court.
On September 2, 1977, this Court signed a temporary restraining
order requiring the City Board to reinstate Valentin on the
ballot pending a determination of plaintiffs' motion for a
preliminary injunction under '5 of the Voting Rights Act, 42
U.S.C. '1973c. Pursuant to 28 U.S.C. ' 2284(b)(3), the temporary
restraining order remained in effect until the Voting Rights Act
claim was disposed of by the November 18, 1977 three-judge court
decision. On November 4, 1977 Velez brought on an order to show
cause why the November 8th election should not be stayed pending
the disposition by the three-judge court. Believing that the
probabilities of success and the equities favored plaintiffs,
the court denied the stay in accordance with an oral decision
rendered that date. Four days later, on November 8, 1977,
Valentin was elected to the City Council by a landslide. He
assumed office on January 1, 1978.
SECTION 1983 CLAIM
It is well settled that voting is a fundamental right, Reynolds
v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964),
which includes the right to vote in a primary election, Smith v.
Allwright, 321 U.S. 649, 660- 62, 64 S.Ct. 757, 88 L.Ed. 987
(1944); United States v. Classic,313 U.S. 299, 318, 61 S.Ct.
1031, 85 L.Ed. 1368 (1941); cf. Bullock v. Carter, 405 U.S. 134,
92 S.Ct. 849, 31 L.Ed.2d 92 (1972), and to have that vote count
ed, Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d
821 (1963); United States v. Classic, supra; cf. Hadley v.
Junior College District of Metropolitan Kansas City, 397 U.S.
50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). A voter has standing to
sue for deprivation of that right. Gray v. Sanders, supra,
372 U.S. at 375, 83 S.Ct. 801; Griffin v. Burns, 431 F.Supp.
1361, 1363 (D.R.I.1977) (implied).
Likewise, the first amendment rights of freedom to associate
and to petition for redress of grievances and the concept of
liberty in the due process clause of the fourteenth amendment
provide candidates with a limited right of access to the ballot.
See Smith v. Cherry, 489 F.2d 1098, 1100 (7th Cir. 1973), cert.
denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974);
Briscoe v. Kusper, 435 F.2d 1046, 1052-54 (7th Cir. 1970). Thus,
the right to appear on the ballot is integral to the right to
vote and must be measured by the same test of constitutionality.
See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24
(1968). Candidates have standing to assert this right. See
Smith v. Cherry, supra and Briscoe v. Kusper, supra (implied in
Here plaintiffs allege in their second amended complaint that
these rights of voters and candidates were abridged without due
process in that Valentin justifiably relied on the advice of the
City Board of Elections and as a result was affirmatively misled
into following an unauthorized method of signature gathering.
He was not given notice of the appropriate procedure until after
the petition-gathering period had ended. Consequently, he was
unconstitutionally denied access to the ballot, and, in turn, the
voters were unconstitutionally denied the right to vote for
In support of their legal theory, plaintiffs rely primarily on
Briscoe v. Kusper, supra, and Griffin v. Burns, supra. In
Briscoe, the governing statute provided that " 'Each voter
signing a nomination paper . . . may subscribe to one nomina
tion . . . and no more. . . .' " Id. at 1054 (emphasis added).
Nonetheless, the Board of Elections had followed a custom of
permitting voters to sign more than one nominating petition. "In
1967, seemingly for the first time, the Board voted 2-1 to
change its position and sustain objections to signatures on the
duplication ground" without giving prior warning to potential
candidates. Id. at 1055. The Seventh Circuit held
(r)egardless of whether the more restrictive position of the
Board was statutorily or constitutionally valid, the application
of the new anti- duplication rule to nullify previously accept
able signatures without prior notice was unfair and violated due
process. . . . An agency may be bound by its own established
custom and practice as well as by its formal regulations. The
Board may not deviate from such prior rules of decision on the
applicability of a fundamental directive without announcing in
advance its change in policy. This is especially true where, as
here, fundamental, constitutionally protected liberties are
adversely affected, and those interested require certain knowl
edge of what is expected of them by the state. Until such time
as the Board makes public its new determination, it is constitu
tionally prohibited from imposing that rule on unsuspecting
Briscoe resembles this case since here too the City Board of
Elections had adopted a custom not in literal compliance with
the governing statute and thereby induced the uncontroverted
reliance of potential candidates. [FN13] Velez would have this
Court bypass the dispositive issue of the potential candidates'
reliance and instead look to the reliance vel non of the voters.
To that end he submitted form affidavits from some of Valentin's
SBR's in an attempt to prove that a critical percentage of the
SBR's did not intend to rely on the oral advice of the City
Board of Elections. The voters' rights were abridged, however,
not by their individual or collective acts of reliance, but by
the reliance of Valentin, which resulted in the infringement of
Valentin's rights and, in turn, the rights of those voters who
wished to support him.[FN14] Accordingly, the affidavits sub
mitted by Velez will not be considered.
Reliance having been established, the Court finds the reliance
to have been justifiable inasmuch as the City Board of Elections
by virtue of its position had apparent authority to speak,
notwithstanding its lack of actual authority to do so, and its
advice was not so patently erroneous as to put the inquirer on
notice that he should not follow the advice. Thus, even though
the advice was erroneous and unauthorized, this Court believes
that, as in Briscoe, there was a custom or practice, which
induced justifiable reliance, and could not be departed from
without giving prior notice to potential candidates. Unlike
Briscoe, however, the change in procedure in this case apparently
was an immediate consequence of judicial invalidation of an
administrative practice, rather than a direct result of a change
within the administrative agency itself. That is not to say,
however, that Briscoe is inapposite and the City Board's conduct
immune from attack. On the contrary, although a judicial deci
sion was the immediate cause of Valentin's removal from the
ballot, the City Board of Elections was directly responsible for
this result. In the wake of a new mail registration statute
designed to facilitate greater enrollments, it was entirely
reasonable for candidates to call the City Board of Elections to
try to determine whether the petition-gathering procedure had
been affected by the new registration procedures. It was the
duty of the Executive Director of the City Board of Elections to
obtain a correct interpretation of the statute and not dissemi
nate interpretations that were incorrect. It was the duty of
the Executive Director of the City Board of Elections to know and
follow proper rule-making procedures, to know the limits of her
authority and not to hold herself out as having authority she
lacked. The burden was on the Board, not the potential can
didate, to look into these matters further or at least to warn
inquirers that they could not rely on advice given them. When
the Board breached these duties it set the stage for the invali
dation, after the time for signature-gathering had closed, of
petition signatures garnered on its advice. But for the conduct
of the City of Board of Elections, Valentin undoubtedly would
not have followed this improper procedure, would not have had
the 343 SBR's invalidated, and would not have had his candidacy
invalidated. In addition, but for the City Board's reckless
ness, those who signed his petitions, including the non-SBR's
would not have been disenfranchised and those 4800 people who
voted for him in the primary on September 8th would not have
been faced with the threat of disenfranchisement by this Court
now. Accordingly, the Court believes that Briscoe is applicable.
This Court is not alone in so holding. Griffin v. Burns,
supra, which is on all fours with this case, reached the same
result. In Griffin, "(p)ursuant to a custom reaching back for
at least seven years, and in accordance with its understanding
of the requirements of state law . . . the Board of Canvassers
issued applications to qualified voters to obtain absentee or
shut-in ballots." Id. at 1363. The Board validated the absen
tee and shut-in ballots cast and as a result candidate Griffin
won the primary by 15 votes. The losing candidate sued in state
court on the ground that state law permitted absentee and shut-
in ballots only in general elections. The court agreed, holding
that there was no constitutional or statutory basis for the
Board's permitting absentee and shut-in votes in primary elec
tions. The court therefore quashed the Board's certification of
Griffin. Thereafter, the class of voters whose absentee and
shut-in votes had been invalidated brought a ' 1983 suit against
the Secretary of State, three members of the Board of Canvassers
and one of candidate Griffin's opponents.
As in the instant case, there was no evidence that defendants
had any discriminatory intent and the court found that defend
ants had acted in good faith in issuing and counting the absen
tee and shut-in ballots. Id. at 1364. [FN15] Nonetheless,
following Briscoe, the Court found a '1983 violation, reasoning
In this case, plaintiffs who attempted in good faith to exer
cise that right find through no fault of their own, and in
reliance on the representations of state officials that they
have somehow "lost" that right. As the Court noted in its May 2
Order, "something fundamentally unfair has taken place." It is
hard to see how this sudden loss of the franchise after it has
been exercised by voters unquestionably qualified to exercise it
comports either with the right to an undiluted vote, Reynolds v.
Sims, 377 U.S. 533, 562-68, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9
L.Ed.2d 821 (1963), or with due process of law.
In this case, state officials have in effect presented the
plaintiff class with "illegal ballots" and then have refused to
count their votes. The right to vote has clearly been in
fringed. In this context of significant disenfranchisement of
an identifiable group at the direction of state officials, the
lack of evil intent on the defendants' part is not dispositive.
Toney v. White, 488 F.2d 310 (5th Cir. 1973); Coalition for
Education, District One v. Board of Elections, 370 F.Supp. 42
(S.D.N.Y.1974), aff'd 495 F.2d 1090 (2nd Cir. 1974); Ury v.
Santee, 303 F.Supp. 119 (N.D.Ill.1969). Id. at 1366.
Plaintiffs' proof brings them within the ambit of Briscoe and
Griffin. Velez' opposition does not raise a genuine issue of
material fact as to the existence of an administrative "prac
tice," albeit an unauthorized one, the potential candidates'
justifiable reliance thereon, and the resultant infringement of
the rights of candidates and voters. Accordingly, absent some
legal objection, summary judgment in plaintiffs' favor would be
in order. The Court now turns to the legal objections raised by
Velez' primary objection, and the basis for his cross-motion
for summary judgment, is that res judicata, collateral estoppel
and full faith and credit bar plaintiffs from pursuing their
'1983 claim.[FN16] This Court disagrees.
Res judicata applies in '1983 cases only when the claims as
serted in the civil rights suit are identical to those raised in
the state court proceedings. E. g., Graves v. Olgiati, 550 F.2d
1327 (2d Cir. 1977) (Kaufman, C. J.) (not identical no res
judicata); Newman v. Board of Education, 508 F.2d 277 (2d Cir.)
(per curiam), cert. denied, 420 U.S. 1004, 95 S.Ct. 1447, 43
L.Ed.2d 762 (1975) (same claim raised, but not developed, in
state courts no res judicata); Thistlethwaite v. City of New
York, 497 F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093, 95
S.Ct. 686, 42 L.Ed.2d 686 (1974) (identical res judicata);
Perrotta v. Irizarry, 430 F.Supp. 1274, 1277-78 (S.D.N.Y.),
aff'd on the opinion below, No. 77-7254 (2d Cir. Dec. 19, 1977)
(not identical no res judicata); DeLuca v. Starck, 414 F.Supp.
18 (E.D.Wis.1976) (not identical no res judicata). In the in
stant case, however, the constitutional claim raised by Valentin
in the State courts is not identical to the constitutional claim
at bar. Although Salvador Cartagena [FN17] orally argued re
liance/due process before State Supreme Court Justice
McCooe,[FN18] Valentin did not allege or argue a denial of due
process. [FN19] Rather, the sole constitutional claim made by
Valentin in the State courts was that '136 of the Election Law
would be unconstitutional unless there were a compelling state
interest for interpreting it as the lower court had done; and
there could be no compelling state interest inasmuch as a less
restrictive interpretation was permitted in Community School
Board Elections. It is unnecessary for this Court to decide
whether Valentin can be charged with having joined in the "due
process claim" asserted by Cartagena, because Cartagena's
"claim" was not adjudicated by the state courts; therefore, there
is no res judicata. Olson v. Board of Education, 250 F.Supp.
1000, 1005 (E.D.N.Y.), appeal dismissed per curiam as moot, 367
F.2d 565 (2d Cir. 1966); see Morpurgo v. Board of Higher Educa
tion, 423 F.Supp. 704, 710 (S.D.N.Y.1976) (Weinfeld, J.) (plain
tiff "is barred from renewing only those claims specifically
raised and passed upon by the state courts.") (emphasis added;
Nor is Valentin precluded from seeking relief in federal court
because he did not raise the instant due process claim in the
state court proceedings. In this Circuit, res judicata does not
apply in ' 1983 suits with respect to claims that could have been
but were not raised in the prior state suit. Lombard v. Board
of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420
U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); accord, Newman
v. Board of Education, supra; Morpurgo v. Board of Higher Educa
tion, supra. This exception to the res judicata doctrine in
civil rights suits is based in part on the policy that '1983
relief was intended to be supplemental to state relief and that
plaintiffs should be able to utilize both federal and state
forums when one cause of action gives rise to state and federal
claims. Lombard, supra at 635-36. Similarly, to effectuate this
policy, civil rights plaintiffs are not required to exhaust their
state judicial remedies. McNeese v. Board of Education, 373
U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape,
365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Lombard,
supra at 635-36.[FN20] Therefore, plaintiffs are not barred by
their failure to raise the instant claim in state court.
As to collateral estoppel, this applies only when an issue
raised in the second action was actually litigated and was
necessary to the determination in the first action. Lombard,
supra at 637; 1B J. Moore, Federal Practice P 0.405(1) (2d ed.
1965); see Note, Developments in the Law Section 1983 and Feder
alism, 90 Harv.L.Rev. 1133, 1333 (1977). Thus, if the validity
of the SBR's under state law were an issue here, there would be
collateral estoppel on that issue; however, the state court
determination that the SBR's were invalid is not relevant to the
instant question of whether or not the City Board of Elections'
erroneous advice and ultra vires conduct led to a denial of due
process. Similarly, if the state courts had found, or if the
determinations necessarily implied a finding, that there had been
no justifiable reliance by the candidates and voters, then there
would be collateral estoppel on that issue; however, contrary to
Velez' repeated assertion, the state courts neither expressly
nor impliedly determined that issue.[FN21] Therefore, there is
no collateral estoppel as to any of the plaintiffs on the re
Likewise, the Court does not believe that full faith and credit
is due under 28 U.S.C. '1738. This statute requires federal
courts to give whatever credit the state would give to the state
court decision. However, "(o)ther well-defined federal po
licies, statutory or constitutional, may compete with those
policies underlying section 1738." American Mannex Corp. v.
Rozands, 462 F.2d 688, 690 (5th Cir.), cert. denied, 409 U.S.
1040, 93 S.Ct. 524, 34 L.Ed.2d 489 (1972); accord, Mitchell v.
NBC, 553 F.2d 265, 274 (2d Cir. 1977); Red Fox v. Red Fox, 564
F.2d 361, 365 n.3 (9th Cir. 1977); Batiste v. Furnco Construc
tion Corp., 503 F.2d 447, 450 (7th Cir. 1974), cert. denied,
420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975); Cullen v.
New York State Civil Service Commission, 435 F.Supp. 546, 555-56
n.5 (E.D.N.Y.1977); Wageed v. Schenuit Industries Inc., 406
F.Supp. 217 (D.Md.1975); Porter v. Nossen, 360 F.Supp. 527
(M.D.Pa.1973), aff'd without opinion, 511 F.2d 1395 (3d Cir.
1975). It would appear that the same policies which favor a
relaxed principle of res judicata in '1983 suits, see Lombard,
supra, would also militate against giving full faith and credit
here.[FN23] See Cullen v. New York State Civil Service Commis
sion, supra, at n.5; Note, Developments in the Law Section 1983
and Federalism, supra at 1335 et seq.
That is not to say, however, that there is no issue of comity
in this case. Although Velez' reliance on the Anti-Injunction
Act, 28 U.S.C. '2283, is misplaced, Gibson v. Berryhill, 411
U.S. 564, 573, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Mitchum v.
Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), it
is still necessary to determine whether Younger v. Harris, 401
U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, e.
g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52
L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct.
1211, 51 L.Ed.2d 376 (1977) and Huffman v. Pursue, Ltd., 420
U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), require federal
What these recent cases have in common is that lower federal
courts enjoined the enforcement of a state statute and in so
doing disrupted a prior ongoing state proceeding, initiated by
the state, and in which the state court defendant had refused to
litigate the constitutionality of the state statutes. This
bypass of the state forum denied the state courts the opportunity
to give a narrower reading to their own statutes.
However, unlike the situations involved in those cases, the
instant suit does not disrupt an ongoing state court proceeding.
Moreover, unlike those cases the federal plaintiffs here did not
completely avoid the state forum or refuse to appeal; rather,
they appeared and vigorously litigated throughout the state
court system. Thus, there was no avoidance or interruption by
which the state courts' ability to address the matter was ob
structed or impugned. Furthermore, it is particularly signifi
cant that the bypass in Huffman, Juidice and Trainor denied
those state courts the opportunity to construe their respective
statutes consistently with the Constitution. This Court, howev
er, has not been called upon to condemn or construe state sta
tutes; nor does it question the statutory construction of the
state courts in this case. Thus, the important state judicial
function which Huffman, Juidice and Trainor seek to protect is
not involved here.
Furthermore, in considering the important state interests which
are involved here, this Court cannot overlook the compelling
federal interest in protecting the fundamental right to vote.
Those who signed Valentin's petitions, including non-SBR's, and
those who would have voted for Valentin in the primary were
deprived of this right when Valentin was removed from the primary
ballot. These voters, who include a majority of those voting in
the Democratic primary, would have remained disenfranchised but
for the intervention of this Court. Should this Court abstain
now, they would be disenfranchised anew. Accordingly, this
Court, though reluctant to interfere, feels compelled to act to
prevent the deprivation of such a fundamental federal right.
In addition, although the state and federal proceedings may
appear to be at cross-purposes, it is important to remember that
both forums in fact share common purposes, namely to protect the
integrity of this election and the rights of voters and candi
Lastly, as the defendant City Board of Elections argued in the
memorandum it submitted on the Voting Rights Act claim, it is
important to keep in mind that the very purpose of the require
ment of 1500 signatures is to ensure that all candidates placed
on the ballot have a minimum number of supporters and therefore
are serious contenders. Certainly, now that Valentin has defeat
ed Velez in the primary, polling far in excess of 1500 votes,
and handily won the general election on November 8th, it would
exalt form over substance to permit the invalidation of his
candidacy on the basis of a technical violation which impaired
his showing of preliminary support.
For the foregoing reasons, the Court believes that the inter
ests at stake and the posture of this case warrant this Court's
intervention. Having found none of Velez' objections persua
sive, summary judgment is granted in plaintiffs' favor.
The Court believes that the relief that is most equitable and
will preserve the integrity of the election and the people's
faith in it is to leave undisturbed the results of the September
8th primary and the November 8th general election. This entails
entering a permanent injunction against removing Valentin's name
from the ballot.
Velez objects to this relief, proposing instead that this Court
avoid the problem of inconsistent state and federal court de
crees by simply ordering a new primary with Velez as the unop
posed candidate and Valentin as a write-in candidate. This
Court would readily grant less intrusive relief if it would
provide a fair and adequate remedy. However, it should be obvi
ous that the remedy Velez proposes does not protect plaintiffs'
rights to have Valentin on the ballot, would frustrate the
rights of the majority who voted for Valentin on primary day,
and would undermine the integrity of the primary and general
Velez counters that the relief he proposes will protect the
rights of certain voters who did not have the opportunity to
vote for either candidate on primary day due to the City Board
of Elections' inability to respond in every case to this Court's
directive. As unfortunate as that "disenfranchisement" is, the
fact is that in terms of numbers, in terms of inability to prove
who these voters would have voted for [FN25] and in terms of the
excusable conduct which led to those irregularities, cf. Hen
nings v. Grafton, supra, the extent of that "disenfranchisement"
is minimal in comparison to that faced by those who voted for
Valentin. In fact, it has been found immaterial by the state
Having rejected Velez' proposal, the only other possible remedy
would be to order a new primary and a new petition-gathering
period in conformity with the New York courts' authoritative
construction of ss 153(7) and 135 of the Election Law. The
Court rejects this alternative, however, because it would appear
to be quite expensive and burdensome to the City and candidates
and it does not accomplish the objective of avoiding inconsist
ent court decrees. In addition, as the Court observed when it
granted the temporary restraining order, there is only one
"September 8th." It realized then that the circumstances on any
given election day are unique. A new primary now could not
duplicate the turnout and other circumstances that occurred on
September 8, 1977. Thus, it would be unfair to subject the
September 8th victor to another challenge when the most preju
dice Velez can claim is that from August 30 until September 2nd
or 3rd he thought he would be unopposed on the primary ballot.
Until that time he had had to conduct a campaign and presumably
continued to do so after that brief hiatus; and he was the
Thus, the only appropriate remedy is the granting of a perma
nent injunction against removing Valentin's name from the bal
It is so ordered.
FN1. The only factual matter in dispute is as to what issues and
claims were raised and adjudicated in the state courts. See the
9(g) statements submitted by the parties.
For a fuller development of the facts, see the November 18, 1977
decision of the three-judge court. The parties submitted numerous
briefs and affidavits throughout this action, all of which were
considered in connection with the present motions.
FN2. See August 12, 1977 Testimony of Betty Dolen before Referees
Paperno and Stackell in connection with Salman v. Board of
Elections and Klotz, Index No. 14421/77 (Sup.Ct., Bx. Co.);
e.g., Affidavit of Frank Baraff, dated October 7, 1977. Ms.
Dolen's conviction was based on an "impression" formed on
the basis of a telephone conversation she allegedly had a year
earlier with someone from the State Board of Elections. She
could not recall specifically with whom she had spoken other
than that it would have been somebody who normally explained
Board rulings and might have been "the Executive Director or
the Deputy Executive Director, or counsel . . . ." Id. at
Stanley Zalen, Deputy Counsel for the New York State Board
of Elections, in an affidavit dated September 17, 1977,
states that "(t)he only instructions given by the New York
State Board of Elections to be officially relied upon are
issued in the form of written rules and regulations, written
opinions, or written advisories. No official communications
are ever given orally."
FN3. See Report of Special Referee Lloyd I. Paperno, dated
August 22, 1977, in connection with Salman v. Board of
Elections, supra at 8-9; Affidavit of Valentin, dated Sep
tember 11, 1977.
FN4. Testimony of Betty Dolen, supra at 28, 31.
FN5. Velez has argued that even if this Court concludes
that for due process reasons the SBR's must be counted,
Valentin should be denied relief because some of those
signatures were allegedly tainted by fraud. In furtherance
of this argument, Velez has submitted form affidavits from some
SBR's to the effect that when they signed the designating peti
tions they did not do so with the intention of putting
Valentin on the ballot. One of the implications of these
affidavits is that there was some deceit involved in Valen
tin's procurement of the signatures of these SBR's. This non-
federal issue was raised in the state courts and will not be
reconsidered here. Similarly, the Court will not consider
the affidavits attacking the residency of a handful of SBR's
as that is clearly a state court issue.
FN6. The Paperno Report was also adopted by Justice William
P. McCooe in the related case of Salmon v. Board of Elec
tions and Klotz, supra.
FN7. Section 153(7)(a) of the Election Law (McKinney
Supp.1976) provides: "The voter registration, enrollment and
transfer of registration, shall be complete upon receipt of
the application by the appropriate county board of
elections . . . ."
FN8. Section 135(2) of the Election Law (McKinney
Supp.1976) requires a signatory of a designating petition to
swear that he is a "duly enrolled voter."
FN9. See Election Law ss 469 and 470 (McKinney Supp.1976).
FN10. See Executive Law '102 (McKinney 1972 and 1976
FN11. See PP 14, 16-20, 47-50 of the Second Amended Com
FN12. In accordance with the reasoning in Briscoe, this
Court, too, finds Snowden v. Hughes, 321 U.S. 1, 64 S.Ct.
397, 88 L.Ed. 497 (1944), inapplicable and Velez' reliance
thereon misplaced inasmuch as plaintiffs' grievance involves
the loss of constitutionally-protected, not state- created,
FN13. In opposition to Valentin's affidavit regarding
reliance, Velez argues that Valentin himself did not rely
since he did not personally collect signatures. Points and
Authorities of Defendant Velez in Opposition to Summary
Judgment in Favor of Plaintiffs, And in Support of Summary
Judgment in Favor of Defendant Velez at 16. This argument is
FN14. Similarly, the Court regards as collateral whether
each of the SBR's voted in both the primary and the election
and, if so, for whom they voted. It is clear that Valen
tin's campaign relied on the advice given, and thereby
obtained a sufficient number of signatures to qualify for the
primary ballot, and as a result, won the primary with 4800 voters
casting their ballots for him. It is the bottom line that
counts, not the state of mind of each SBR on the day he or
she signed the designating petition, on primary day and on
election day. Consequently, the affidavits of Cesar Nieves
and Ada Torres and the opposing affidavit of Peter Vera are
irrelevant. Moreover, if the issues raised by these affidavits
were relevant, it would seem that better evidence could be
obtained than affidavits from unidentified affiants.
FN15. Plaintiffs need not prove that defendants acted with
specific intent to deprive them of their constitutional
rights. See Wood v. Strickland, 420 U.S. 308, 321-22, 95
S.Ct. 992, 43 L.Ed.2d 214 (1975); Monroe v. Pape, 365 U.S.
167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Hennings v.
Grafton, 523 F.2d 861, 865 (7th Cir. 1975) ("lack of intent to
violate plaintiffs' constitutional rights would not neces
sarily be a defense if the defendants should have known that
their conduct would have that effect"); Coalition for Educa
tion in District One v. Board of Education, 370 F.Supp. 42,
55 (S.D.N.Y.), aff'd per curiam, 495 F.2d 1090 (2d Cir.
Velez suggests that the defendants are not "persons" within
the meaning of '1983 and that the Justices of the State
Courts are necessary parties and therefore should have been
joined. Inasmuch as the members of the City Board of Elec
tions are sued individually and as an entity there is no
problem as to whether plaintiffs have sued a "person" within the
meaning of '1983. Cf. Monell v. Dep't of Social Services of
the City of New York, 532 F.2d 259, 263-64 (2d Cir. 1976),
cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789
(1977). Similarly, whether the intervenor- defendant State
of New York is immune is irrelevant since the relief runs
against the members of the City Board of Elections. Likewise,
the Court finds unpersuasive Velez' suggestion that the
Justices of the New York courts are necessary parties. It
is not the State courts' action which is at issue here.
Moreover, as in Griffin, the State's interest has been
commendably represented by the Attorney General.
FN16. Velez also argues that due to alleged voting irregu
larities on primary day other voters were disenfranchised.
These alleged voting irregularities are in no way relevant
to the issue at hand. Velez does not claim that he too was
denied due process; nor can he under the facts he alleges.
See Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975).
Rather, these irregularities are purely a matter for the state
courts, where they in fact were litigated and decided ad
versely to Velez: the state courts denied Velez' petition to
set aside the official canvass of the City Board of Elec
tions on grounds of alleged voter irregularities on primary
day. Velez v. Sclafani, --- N.Y.S.2d --- Index No. 15510/77
(Sup.Ct., Bx. Co., 1977), adopting Report of Special Referee
William K. Broudy, dated October 21, 1977, unanimously
affirmed without opinion, --- N.Y.S.2d ---, No. 1211
(App.Div., 1st Dep't, 1977).
FN17. Cartagena was another City Council candidate who was
removed from the ballot by the state courts when his SBR's
were invalidated. He was a plaintiff in this action and was
reinstated on the ballot by this Court's temporary restrain
ing order, but his interest was mooted by his defeat in the
September 8th primary.
FN18. See pp. 11-14 of Transcript of the August 22, 1977
argument of Louis C. Benza on behalf of Cartagena, before
Justice McCooe, in Cartagena v. Board of Elections, Index
FN19. See Transcript of the August 22, 1977 argument of
JOHN C. KLOTZ on behalf of Valentin, before Justice McCooe,
in Velez v. Board of Elections, Index No. 14399/77.
FN20. Huffman v. Pursue, Ltd., 420 U.S. 592, 609 n.21, 95
S.Ct. 1200, 43 L.Ed.2d 482 (1975), expressly is not to the
FN21. Velez cites as evidence of a finding on reliance the
language of Justice McCooe in Cartagena v. Board of Elec
tions, Index No. 14489/77 (Sup.Ct., Bx. Co., Aug. 22, 1977),
that the oral opinion of the Executive Director of the City
Board of Elections was of no force and effect. It is clear,
however, that Justice McCooe was passing only on the legal valid
ity of the practice under New York law and was not making a
finding concerning reliance; nor is a finding concerning
reliance necessarily implied in Justice McCooe's holding,
inasmuch as reliance was not relevant to the statutory
validity of the City Board's conduct under New York law.
Nor is such a finding necessarily implied in the fact that Jus
tice McCooe may have implicitly rejected applying equitable
estoppel, not because of lack of reliance, but apparently
because he believed that equitable estoppel is still not
available against the government. See pp. 26-27 of Tran
script of the August 22, 1977 argument of John Klotz on behalf of
Valentin, before Justice McCooe, in Velez v. Board of Elections,
Index No. 14399/77. On the question of equitable estoppel
see K. Davis, Administrative Law of the Seventies ss 17.01
and 17.06 (1976); e. g., LaPorto v. Village of Philmont, 39
N.Y.2d 7, 382 N.Y.S.2d 703, 346 N.E.2d 503 (1976); Bender v.
New York City Health & Hospitals Corp., 38 N.Y.2d 662, 382
N.Y.S.2d 18, 345 N.E.2d 561 (1976); Planet Construction
Corp. v. Board of Education, 7 N.Y.2d 381, 198 N.Y.S.2d 68, 165
N.E.2d 758 (1960).
Lastly, in an attempt to demonstrate that the New York
courts disposed of the issue of reliance Velez submits an
affidavit from his attorney who states that he "specifically
recalls that at the Appellate Division one of the Justices
inquired of Mr. Klotz, attorney for VALENTIN, as to whether he
could submit any authority for the proposition that one could
rely upon the oral opinion of a representative of the Board
of Elections and that oral opinions could be binding when,
in fact, they contradicted the then existing statutory law."
Affidavit of Paul E. Bleifer, dated November 12, 1977. At
oral argument before this Court on November 29, 1977, Mr.
Bleifer's co-counsel, Theodore Teah, recollected the Appellate
Division Justice's inquiry this way: "The point that was
made, I believe, I may be wrong, was something to the effect
are you saying we should allow people to rely upon the
advice of a clerk?" (Tr. 40-41) Even apart from the fact
that counsels' assertions are based on unrecorded recollection,
the Court does not believe that such an inquiry of one of the
Justices can be treated as a finding of non-reliance or unjusti
fied reliance. In '1983 suits, "if a reasonable doubt as to
applicability of the estoppel exists, it must be resolved
against precluding litigation of the issue." Clark v. Lutcher,
436 F.Supp. 1266, 1272 (M.D.Pa.1977).
FN22. Velez contends that there should be collateral estop
pel against the voters even though they were not parties and,
according to Velez, were not entitled to be parties to a state
suit brought under '330 of the Election Law. The reason the
voters should be barred, contends Velez, is because their
interest supposedly was protected, first, by a group known as the
Committee on Vacancies, and second, by Valentin himself.
Although Velez asserts that the Committee on Vacancies was a
group named by Valentin's supporters to act on their behalf, he
does not establish or even suggest that the Committee was author
ized by the signatories or anyone else to defend Valentin's
candidacy against state court challenges. Rather, Velez asserts
that the Committee was authorized to act on behalf of the signa
tories "in naming a candidate if the original candidate through
death, declination or disqualification is unable to run. . . ."
Points and Authorities of Defendant Velez in Opposition to Sum
mary Judgment in Favor of Plaintiffs, and in Support of Summary
Judgment in Favor of Defendant Velez at 10-11 (emphasis added).
Moreover, while Velez states that the Committee was named and
served in the state court action, id. at 11, he does not assert
that the Committee actually appeared and defended the signato
ries' interests. Indeed, the Court notes that the Committee on
Vacancies is not listed in any caption contained on any of the
state court documents submitted in this action. Thus, the Com
mittee presumably declined the opportunity to defend Valentin.
This would not bar the voters now. Cf. Show-World Center, Inc.
v. Walsh, 438 F.Supp. 642, 648 (S.D.N.Y.1977). In sum, inasmuch
as there has been no proof that the interest of the Committee on
Vacancies was identical to that of the signatories and voters, or
that it was authorized to represent the interests of the signato
ries and voters, or that it in fact represented the interests of
the signatories and voters, the Court believes that it would be
contrary to the interests of justice to estop the voters now.
See Jeter v. Kerr, 429 F.Supp. 435, 438 n.3 (S.D.N.Y.1977); Olson
v. Board of Education, 250 F.Supp. 1000, 1004 (E.D.N.Y.),
appeal dismissed per curiam as moot, 367 F.2d 565 (2d Cir. 1966);
cf. Ellentuck v. Klein, --- F.2d ---- at ---- (2d Cir. 1978).
Second, Velez contends that the voters should be collateral
ly estopped because under New York law voters and candidates
purportedly are "united in interest" and therefore Valentin was
representing the voters' interest. Assuming that whether they are
united in interest is in fact the test for whether they are
privies for purposes of collateral estoppel, if their interests
are so united, why does '145 of the Election Law give voters the
right to file objections and '330 of the Election Law apparently
give those who have previously filed objections a right of ac
tion? This separate right of action seems to imply that the
state recognizes that the voters' interest may not always be
protected by the candidates. In the absence of a more persuasive
showing that the voters have actually had their day in court,
this Court is not inclined to collaterally estop them.
FN23. The Court notes that at the present time the state
court judgments are not even admissible inasmuch as they lack
"the attestation of the clerk and seal of the court annexed, if a
seal exists, together with a certificate of a judge of the court
that the said attestation is in proper form." 28 U.S.C. '1738.
FN24. See Memorandum of Law on Behalf of the New York City
Board of Elections submitted in relation to the Voting Rights Act
FN25. See Report of Special Referee William K. Broudy,
dated October 21, 1977, adopted in Velez v. Sclafani, ---
N.Y.S.2d ---, Index No. 15510/77 (Sup.Ct. Bx. Co., 1977), aff'd
without opinion, --- N.Y.S.2d ---, No. 1211 (App.Div. 1st Dep't,