*UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
____________________________________ X
SAM SLOAN
RICHARD BOZULICH
THOMAS R. STEVENS
VERIFIED COMPLAINT
-against-
Salvatore G. Caruso,
Daniel S. Szalkiewicz,
Board of Elections in the City of New York,
____________________________________ X
STATE OF NEW YORK :
: SS
COUNTY OF NEW YORK :
Samuel H. Sloan, being duly sworn, deposes and says
1. This proceeding is brought under the First and Fourteenth Amendments to
the Constitution of the United States including especially the First
Amendment Right “to petition the Government” and under New York Election
Law Sections 16-100 and 16-102 and other provisions of New York Election
Law.
2. Sam Sloan is a candidate for Mayor of the City of New York. Richard
Bozulich is a candidate for Comptroller of the City of New York. Thomas R.
Stevens is a candidate for Public Advocate of the City of New York.
3. Salvatore G. Caruso is a front man or nominal objector to the
candidacies of the above three candidates. Nothing is known about Salvatore
G. Caruso as to whether he is a real person or a fake name, whether he is a
US Citizen entitled to vote, or whether he is even aware of the litigation
taking place under his name to remove or disqualify the petitioners from
the ballot or the legal consequences thereof. While there is a person at
540 Ellsworth Avenue, Apartment C-1, in the Throng's Neck Section of the
Bronx, New York who answers to the name of “Sal”, it is not known whether
he is the real objector or just a front man for the real undisclosed real
objectors.
4. Daniel S. Szalkiewicz is an attorney. Although he lists himself as at
“The Law Office of Daniel S. Szalkiewicz”, 280 Riverside Drive, New York NY
10025, there is no law office at that address or an office of any kind
there. 280 Riverside Drive is an apartment building with 41 apartments. The
name of Daniel S. Szalkiewicz is not listed on the building directory or on
any of the mail boxes. The various directories of New York Lawyers do not
provide either the apartment number or the room or suite number for Daniel
S. Szalkiewicz there or at any other place. Thus, it is impossible to serve
him with legal papers. This is in violation of the rules for New York
Lawyers which provide that a licensed lawyer must provide a real address
and be there most of the time and be amenable to service of process of
legal papers.
5. Although Daniel S. Szalkiewicz claims to be the lawyer for Salvatore G.
Caruso, petitioners believe and therefore allege that Salvatore G. Caruso
is a mere front man and the real objectors are undisclosed Republican Party
Bosses. Petitioners therefore demand that Daniel S. Szalkiewicz be
compelled to testify and disclose as to whom his real clients are and who
is paying his legal fees.
6. Designating petitions were circulated in accordance with New York
Election Law nominating Sam Sloan as Republican Party candidate for Mayor
of the City of New York, Richard Bozulich as Republican Party candidate for
Comptroller of the City of New York and Thomas R. Stevens as Republican
Party candidate for Public Advocate of the City of New York. These
petitions were filed with the Board of Elections in the City of New York at
11:50 PM on July 11, 2013. Under the rules, it is required that petitions
with 3750 or more valid signatures be filed. More than enough of the
required number of signatures were filed. There were no errors or mistakes
in these petitions or in the cover sheet.
7. On July 15, 2013 at 5:35 PM Daniel S. Szalkiewicz purporting to
represent an objector named Sal Caruso filed a “General Objection” with the
New York City Board of Elections. A copy of this General Objection is
annexed hereto and Marked Exhibit A.
8. On July 22, 2013 at 9:56 PM, Daniel S. Szalkiewicz purporting to
represent an objector named Sal Caruso filed “Specific Objections” with the
Board of Elections in the City of New York. A copy of the cover sheet of
these Specific Objections is annexed hereto and Marked Exhibit B.
9. These Objections were facially and obviously invalid for numerous
reasons and thus should not have been considered by the Board of Elections
in the City of New York. The Specific Objections were not original
documents but were mere photocopies. The cover sheet and signature page on
the Specific Objections was a photocopy and did not contain an original
signature and thus was not a valid legal document.
10. Rather than provide line-by-line specific objections, the objectors
claimed that there were 4269 signatures but only 69 were good and the other
4200 were false. They simply marked virtually all of the approximately 500
pages of petition sheets with SWNR, SWNE and marked virtually all of the
lines with NR, NE. SWNR means Subscribing Witness not Registered. SWNE
means Subscribing Witness not Enrolled.
11. It was quickly established that this was not true. All of the
Subscribing witnesses are and were registered to vote in the State of New
York. Once this was established, it should have been evident that the
Specific Objections were spurious and frivolous and the objectors had never
bothered to look up the actual signature cards on file with the Board of
Elections. The objectors simply sought to require the Board of Elections
and the candidates to do all the work to prove the validity of the
petitions. This shifting of the Burden of Proof was improper and should not
have been allowed.
12. Nevertheless, the Board of Elections went ahead with validating the
petitions. Kevin Fiori of the Bronx Board of Elections was assigned the
task of validating the petitions. Because of the improper way in which the
specific objections were bundled, Mr. Fiori was required to break open the
bundle and reorganize the petitions into ten volumes. He then assigned ten
teams of part-time employees of the Board of Elections to go through the
petitions over an entire three-day weekend. The end result was that only
112 of the signers were found to be not registered to vote and only 59 of
the more than 4000 signers were found to be not registered as Republicans.
These numbers were completely different from the numbers claimed by the
objectors.
13. The Board of Elections found that in the cases of 3905 of the
signatures, although the signers were registered Republicans, the
subscribing witnesses were not registered Republicans.
14. It is an interpretation of New York Election although not specifically
and clearly stated in the law that the witness to the petition must also be
in the same political party as the signers. The petitioners here were not
aware of this interpretation at the time of circulating these petitions.
Petitioners also believe that this is not strictly speaking what the law
says and in any case is Constitutionally invalid in that it deprives the
signers and the candidates of the Constitutional Right to Petition the
Government and has no rational basis. It deprives the signers of the
petitioners the right to nominate candidates of their own choosing.
15. The Specific Objections are not valid because they contain an obvious
forgery. What purports to be the signature of Salvatore Caruso at the
bottom of the Specific Objections is plainly and obviously not the
signature of the person who signed the General Objection, nor it is the
signature of the person who signed the Voter Registration Card of Sal
Caruso. Other than the initial letters S and C, there is no similarity
between the signatures.
16. Although the signature on the buff card bears similarity to the
signature on the General Objection, both are definitely different from the
signature on the Specific Objections, and thus at least one of them is a
forgery. It appears that the signature on the Specific Objections bears
similarity to the signature of Daniel S. Szalkiewicz and thus he is likely
the forger.
17. Here is what purports to be the signature of Sal Caruso on the Specific
Objections:
18. Here is what purports to be the signature of Sal Caruso on the General
Objection:
19. Here is what purports to be the signature of Sal Caruso on the Voter
Registration Card or Buff Card:
20. Accordingly, petitioner demands that this matter be referred to a
handwriting expert and to the DA regarding this forgery. Respondents Daniel
S. Szalkiewicz and Salvatore G. Caruso should be required to appear and
submit their signatures for handwriting analysis and be required to testify
as to whom signed these general and specific objections.
21. An article in the New York Daily News dated July 22, 2013 stated that
20 pages of signature petitions for Republican Party Candidate for
Comptroller John Burnett were “accidentally” shredded by workers at the
Board of Elections but that the candidate was allowed to reconstruct these
20 pages so that his name will appear on the ballot. According to this
article, this shredding pf the signatures was related to a turf war between
GOP insiders Chairman Craig Eaton and State Senator Martin Golden and that
the appointment of Board of Elections Commissioner Simon Shamoun was the
result of a “power grab” by a faction of the Republican Party. This same
person was among those who voted at a Board of Elections hearing on July
29, 2013 not to allow the names of above petitioners Sloan, Bozulich and
Stevens to appear on the Citywide ballot. In view of these obvious
irregularities and the obvious conflicts iof interest. This court should
order that the names of Sloan, Bozulich and Stevens to appear on the ballot
to allow the Republican general electorate decide these issues especially
since Sloan, Bozulich and Stevens are complete outsiders and not part of
any Republican insider clique or group. A copy of the Daily News Article is
annexed hereto as an exhibit.
22. Section 132 (2) of New York Election law provides the following:
2. There shall be appended at the bottom of each sheet a signed statement
of a witness who is a duly qualified voter of the state and an enrolled
voter of the same political party as the voters qualified to sign the
petition, and who is also a resident of the political subdivision in which
the office or position is to be voted for. However, in the case of a
petition for election to the party position of member of the county
committee, residence in the same county shall be sufficient. Such a
statement shall be accepted for all purposes as the equivalent of an
affidavit, and if it contains a material false statement, shall subject the
person signing it to the same penalties as if he or she had been duly
sworn. The form of such statement shall be substantially as follows:
STATEMENT OF WITNESS
I,..................... (name of witness) state: I am a duly qualified
voter of the State of New York and am an enrolled voter of
the....................... party. I now reside at....................
(residence address).
23. It is apparently the interpretation of the Board of Elections in the
City of New York that the above provision implies that the party of the
subscribing witness must be the same as the party of the signer of the
petition. However, the above provision does not actually say that. It
merely suggests but does not require that the subscribing witness disclose
the name of any political party he belongs to, which may be Democrat,
Republican, Socialist, Communist, Blank or any other. Nowhere in this
provision or anywhere else in New York Law is there a requirement that the
mere witness to the signing of a petition be a member of any particular
political party. If there is such a provision it is constitutionally
invalid as infringing on the right to Petition the Government and depriving
the general membership of the right to chose the candidates they want to
run for election.
24. Supporters of the candidates circulated petitions and the requisite
number of signatures were obtained to get on the ballot. The signed
petitions were timely submitted to the Board of Elections in the City of
New York. The Petitions complied in every respect with the election rules,
including cover sheets and wording of the petitions. There were enough
signatures, the cover sheet was done properly and the wording of the
petition was correct.
25. However, on July 31, 2013, all three of these candidates were thrown
off the ballot after a hearing by the New York City Board of Elections for
one reason only, which was that these were designating petitions for the
Republican Party Primary, and the subscribing witnesses (not the signators)
were not registered as Republicans with the New York City Board of
Elections.
26. The candidates had not been previously aware that there was any rule
requiring that the mere witnesses to a petition be members of any political
party. Had they known about this rule they might have been able to take
appropriate action on time (although this would have been difficult as
there are few Republicans willing to perform this task of witnessing
signatures which may expose them to civil liability).
27. The statute which under the interpretation by the Board of Elections
requires the mere witnesses to be Republicans is Section 132 (2) of New
York Election law states:
There shall be appended at the bottom of each sheet a signed statement of a
witness who is a duly qualified voter of the state and an enrolled voter of
the same political party as the voters qualified to sign the petition, and
who is also a resident of the political subdivision in which the office or
position is to be voted for.
28. This provision was declared unconstitutional in the case Lerman v. Bd.
of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000). This is explained
in Dekom vs. New York, 12-CV-1318 (JS)(ARL). However, counsel for the Board
of Elections and the Department of Law has suggested that the Lerner
decision has been overruled by the Maslow case, which is Maslow v. Board of
Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011).
29. Petitioner-Candidates contend that the Maslow case has nothing to do
with the instant case because the Maslow Case was a test case for
declaratory relief, not an actual case, whereas in the instant the
petitioners have been trying hard to get on the ballot and have spent
considerable money to do so, yet have been thwarted by an unwritten rule
they had no way to know about.
30. The First Amendment to the Constitution provides:
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.”
31. Here the law clearly infringes the Constitutional Right “to petition
the government”. There have been several cases on this subject, but all of
them have been federal cases.
32. The subscribing witness rule was found unconstitutional in Kaloshi v.
New York City Board of Elections, 02 CV 4762, 2002 WL 31051530 (E.D.N.Y.
Sept. 6, 2002). This is a lengthy and reasoned opinion that declared the
specific statute in question to be unconstitutional. This is the only
reported case that deals directly with this statute.
33. On appeal, the Kalosi decision was vacated on other grounds not
considered by the lower court. However, the logic and reasoning of the
Kalosi decision has not been disputed or overturned.
34. The main operative fact is it is undisputed that the petitioners
collected 3905 valid signatures whereas only 3750 are required, except that
these 3905 signatures were declared invalid because the signatures were not
witnessed by Republicans. While there have been several federal cases
related to this issue, there has never been a reported state case directly
on this issue.
35. A hearing was held before the Board of Elections in the City of New
York on July 30, 2013. At that hearing, Petitioner Sam Sloan raised all of
the above objections including the obvious forgery on the cover sheet and
improprieties in the Specific Objections. Salvatore G. Caruso did not
appear at that hearing but Daniel S. Szalkiewicz appeared claiming to
represent Caruso. The Board of Elections said that it could not address the
question of forgery on the Specific Objections as it is not qualified to do
so. An audio of that hearing has been made by the Board of Elections and is
available and can be played by this court. The end result was the Board of
Elections threw the three petitioner-candidates off the ballot by decision
dated July 31, 2013.
36. The next day, on August 1, 2013, Petitioner Sam Sloan filed a
validating petition in New York Supreme Court, New York County. All of
these same issues were raised. However, Judge Paul Wooten refused to
consider them. Regarding the objection that Sal Caruso is a front man and
the demand by the Petitioner that the identity of the true Objectors be
revealed, Judge Wooten said, “Your application is denied. We've never done
that. In 30 years on the bench we've never, never -- I'm sorry. In five
years on the bench and 27 years as an election law attorney, we've never
had a case where that application's been granted. You have an exception,
sir.” Similarly Judge Wooten refused to consider any of the other
objections raised by petitioners. The end result was that the petition was
dismissed without opinion on August 9, 2013. A transcript of this hearing
has been made and is available.
37. Petitioner appealed to the Appellate Division, First Department. Again,
petitioner raised all of these same issues. On August 14, 2013, the
Appellate Division affirmed the decision “for the reasons given by Judge
Wooten” even though Judge Wooten had not given any reasons. There was no
opinion.
38. Petitioner filed a motion for Leave to appeal to the Court of appeals.
Again, all of these same issues were raised. The Court of Appeals denied
this motion without opinion.
39. In all of these court filings and appeals, all of these issues have
been raised but there has been no opinion by any court or any judge. Sal
Caruso, the nominal objector, has not appeared at any of these hearings so
it is not known whether he is even aware of these proceedings.
40. Petitioners are new candidates who have never appeared on the
ballot before in any election. They have never circulated Designating
Petitions for any party or election previously. Politics in general in New
York City and politics in the Republican Party in particular are long
dominated by machine politics and by insiders who do not allow outsiders in
unless they buy their way in as for example did the current mayor and one
of the leading Republican Party candidates. At the same time the Republican
Party has been demolished in every recent election and cannot get anybody
elected. Nevertheless, they jealously guard the right to control who gets
their nomination to insure that only their insider losers get on the
ballot. This should not be allowed and the courts should start the opening
up of the election process by allowing these three candidates on the ballot.
41. New York Election Law Section 6-132 (2) requires petitioners and
witnesses to sign a statement and “Such a statement shall be accepted for
all purposes as the equivalent of an affidavit, and if it contains a
material false statement, shall subject the person signing it to the same
penalties as if he or she had been duly sworn.” Candidates to independent
nominating petitions must sign a statement before a notary public either
accepting or declining the nomination. However, Objectors have no such
requirement. Objectors such as Sal Caruso here do not have to appear
anywhere, do not have to provide photo ID, do not have to prove that they
are citizens, do not have to appear before the Board or Elections or in
court and yet can cause ballot petitions signed by thousands of voters to
be thrown out. This is fundamentally unfair and thus unconstitutional and
thus this law should be declared unconstitutional.
WHEREFORE, for all of the reasons set forth above, Petitioner prays:
1. That Salvatore G. Caruso be compelled to appear in court, prove his
identity and questioned regarding whether he voluntarily signed the
Specific Objections and understood the legal consequences thereof.
2. That an order be entered reinstating Sam Sloan, Richard Bozulich and
Thomas R. Stevens as candidates on the ballot in the coming elections
3. That this matter be referred to the District Attorney's and US
Attorney's offices to investigate the apparent and obvious forgery of the
signature of Salvatore G. Caruso on the Specific Objections.