Rules For the Special Election Part – July 9, 2018
Proceedings brought by Orders to Show Cause to validate or to invalidate designating petitions for the Thursday, September 13, 2018 State and Local Offices Primary Election, required to be commenced on or before Thursday, July 26, 2018, or within three (3) business days after a petition is invalidated by the Board of Elections in the City of New York, shall be initially returnable before the Honorable Carol R. Edmead, Justice of the Supreme Court on Tuesday, July 31, 2018, at 10:00 a.m., in IA Part 35, Courtroom 438, located at 60 Centre Street, New York, NY 10007. The calendar call must be answered either by counsel or by the self-represented litigant(s) if not represented by an attorney, who must be ready for assignment on the return date. Non-lawyer "Representatives" of the parties are not permitted to answer the calendar. The parties must comply with the filing requirements of CPLR 304.
On the return date, all counsel and parties appearing self-represented shall advise either the Clerk of the Part, or the Special Referee, of their addresses and telephone numbers. Proof of Service of the Order to Show Cause, as well as any interposed Counterclaims or Answers, shall be filed either with the Clerk of the Part or the Special Referee (not the County Clerk) on that date.
Specifications of objections to a designating or a nominating petition previously served and filed, pursuant to the Rules of the Board of Elections, need not be filed with the Clerk of the Part.
Specifications of objections not previously served and filed with the Board of Elections shall be served upon all opposing parties and filed with the Clerk of the Part, no later than 10:00 a.m., on Wednesday August 1, 2018. Failure to serve and file any such specifications of objections shall be considered and deemed a waiver, and further proof or evidence of such specifications shall be precluded.
In any proceeding by an aggrieved candidate to invalidate a designating or nominating petition, a bill of particulars as to the specifications of objections shall be served upon all opposing parties and filed with the Clerk of the Part, no later than 10:00 a.m., on Wednesday, August 1, 2018. Failure to serve and file a bill of particulars shall be considered and deemed a waiver, and further proof or evidence of the specifications shall be precluded.
In any proceeding or matter alleging a question of residency of a candidate, a complete written offer of proof shall be served upon all opposing parties and filed with the Clerk of the Part or the Special Referee on the return date. The written offer of proof shall specify: [I] the reasons the petitioner believes the address where the candidate actually resides, or that the candidate does not reside at the address stated in the designating/nominating petition; and [ii] the names of any witnesses which the party intends to call to testify regarding the residency issue. Failure to serve and file this offer of proof shall be considered and deemed a waiver, and further proof or evidence of residency shall be precluded.
A complete written offer of proof, in all matters alleging a question of fraud, including a statement as to the number of witnesses expected to be called, the identification of each such witness (by name, address, volume, page and line) and the status of each such witness (e.g., candidate, signatory, subscribing witness, notary public, etc.), shall be served upon all opposing parties and filed with the Clerk of the Part no later than 10:00 a.m., on Wednesday, August 1, 2018. Failure to serve and file such offer of proof shall be considered and deemed a waiver, and further proof or evidence of fraud shall be precluded.
Proceedings brought by Order to Show Cause to validate a designating or nominating petition, required to be commenced within three (3) business days of a determination of its invalidity by the Board of Elections, shall be returnable either on Wednesday August 8, 2018, at 10:00 a.m. in IA Part 35, Courtroom 438, located at 60 Centre Street, New York, NY 10007, or at such other time and place as required by the date on which the Board of Elections made its final determination.
In preparing their proposed Order to Show Cause, petitioners are directed to refrain from drafting proposed language directing the Board of Elections to produce in court, on the return date, all of the petition volumes, specifications of objections, and prima facie findings. Rather, petitioners are directed to draft proposed language calling for the Board of Elections to produce in court, on the return date, only the necessary documents. The balance of the Board of Elections documents can be produced at a later stage of the litigation.
The Appellate Division, First Department, has scheduled and reserved Tuesday, August 21, 2018, and if necessary, Wednesday, August 22, 2018, to consider appeals related to the Thursday, September 13, 2018 primary election.