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(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. 
Mary Pinkett,

                                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 
both cases).

  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' Objections

  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; 
footnote omitted).

  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
liance issue.[FN22]

  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 
court abstention.

  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  
courts. [FN26]

  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 
No. 14489/77.

      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, 

FN26. Id.

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