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> IN THE SUPREME COURT OF THE UNITED STATES
>
> OCTOBER TERM 2004
>
> ____________________
>
> SAMUEL H. SLOAN - PETITIONER
>
> vs.
>
> NERO GRAHAM, FREDERIC M. UMANE, WEYMAN A. CAREY, MICHAEL J. CILMI,
> MARK B. HERMAN, DOUGLAS A. KELLNER, TERRENCE C. O'CONNOR,
> NANCY MOTTOLA-SCHACHER, STEPHAN H. WEINER, Commissioners of Elections
> of the City of New York, constituting the Board of Elections in the
> City of New York and BIBI S. KHAN, THEODORE ALATSAS, KHOURSHED
> CHOWDHURY, DIANE HASLETT RUDIANO, GLADYS PEMBERTON, AARON MASLOW, LORI
> MASLOW, HY SINGER, HARVEY R. CLARKE, KING'S COUNTY REPUBLICAN PARTY,
>
>
> - RESPONDENTS -
>
> ____________________
>
> ON PETITION FOR A WRIT OF CERTIORARI TO SUPREME COURT OF THE STATE OF
> NEW YORK - APPELLATE DIVISION - SECOND DEPARTMENT
> ____________________
>
> PETITION FOR A WRIT OF CERTIORARI
> ____________________
>
> Samuel H. Sloan
> 920 Belmont Avenue
> Brooklyn NY 11208
> (718) 327-3669
>
> E-Mail: samsloan@samsloan.com
>
> Web Address: http://www.samsloan.com/candidates.htm
>
> QUESTIONS PRESENTED
>
> 1. To what extent may state governments set requirements for US
> Congress beyond those enumerated in the Constitution, which are only
> that the person must be 25 years old and have been a citizen for seven
> years and reside in the state?
>
> 2. Under what circumstances may a state or city or county Board of
> Elections kick a candidate for US Congress off the ballot, as has
> happened here?
>
> Petitioner is a Candidate for Election to the United States Congress
> for the Tenth Congressional District of New York. The incumbent is
> Edolphus Towns, a Democrat, who has not faced a Republican Opponent
> for 14 years since 1990. Petitioner was approved as a Republican Party
> Candidate at a meeting of the Executive Committee of the Kings County
> Republican Party in Brooklyn on May 5, 2004. Subsequently, Diane
> Rudiano, who is both secretary of the Kings County Republican Party
> and Chief Clerk of the Kings County Board of Elections took a
> disliking to the petitioner and decided that she did not want his name
> on the ballot. She has ever since conducted a campaign against
> petitioner, using her full powers as both an election official and a
> party official.
>
> I petitioned three days later to the Kings County Supreme
> Court. That court signed an order to show cause but gave me only seven
> hours to serve it. I did so, but that court, the judge of which is a
> retired Democratic state assemblyman, dismissed my petition the next
> day because I had not filed the affidavits of service by 9:30 AM the
> following morning.
>
> I appealed up to the Court of Appeals of New York without
> success.
>
> An Emergency Hearing is required on this matter because the
> Election will be held on November 2, 2004, which is only five days
> from today.
>
> In New York State, perhaps more than any other state, the
> candidates are controlled by the party officials. Almost all elections
> are uncontested. In addition, as this case demonstrates, the rules
> and procedures are completely ignored. Petitioner maintains that the
> entire procedure is unconstitutional. This case has demonstrated that
> it is not merely difficult but impossible to run against a party
> machine controlled by a handful of officials in New York State.
> Petitioner requests review of the entire election procedure, for
> reasons more fully explained in the attached motions which were filed
> in the US District Court and in the US Court of Appeals.
>
> JURISDICTION
>
> The Decision of the Appellate Division Second Department was dated
> August 19, 2004.
> http://www.courts.state.ny.us/repor.../2004_06407.htm
> Subsequently, a petition for rehearing was denied and leave to appeal
> to the New York Court of Appeals was denied. Petitioner has 90 days to
> file this petition. There are no reported decisions except that the
> decision of the Appellate Division is reported at 2004 NYSlipOp 06407
> .
>
>
> STATEMENT OF THE CASE
>
> POINT I
>
> CPLR 2103 (a) DOES NOT APPLY AND CPLR 2103 (b) APPLIES
>
> The decision of this court cited CPLR 2103 (a). However, CPLR 2103 (a)
> was not cited by the court below. Rather, the court below cited only
> 308(1). I was caught off guard by the reference to CPLR 2103 (a) and
> had not looked it up.
>
> I believe that the decision by this court was erroneous for a number
> of reasons, the most important of which was that the decision cited
> the wrong provision of CPLR. The decision cited CPLR 2103 (a). However
> the applicable provision is CPLR 2103 (b). This is because the Order
> to Show Cause required service on Theodore Alatsas and Gary Sinawski
> and both Theodore Alatsas and Gary Sinawski are attorneys at law and
> members of the New York Bar.
>
> CPLR 2103 (b), unlike CPLR 2103 (a), does not require service by a
> person �gnot a party" to this proceeding. CPLR 2103 (b) does not
> require personal service. It allows for service on the office of the
> attorney, by leaving it with his secretary or if the secretary is not
> present by leaving it in his mail slot.
>
> This is what petitioner did. In addition, if the Order to Show Cause
> required personal service, that was impossible because the petitioner
> did not receive a copy of the Order to Show Cause until 4:55 PM on the
> last day to file and the Order to Show Cause required him to serve
> papers by Midnight the same night. This the petitioner did by leaving
> a copy of the order to show cause on the desk of the secretary of Gary
> Sinawski, because Gary Sinawski was gone for the day, and by leaving a
> copy of the order to show cause and the papers upon which it was based
> on the doorknob of Theodore Alatsas, all before Midnight the same
> night.
>
> Petitioner later moved for a rehearing. The second order to show cause
> was signed on August 11, 2004. This time, the court gave the
> petitioner the more reasonable time of Midnight the following day to
> serve papers. Petitioner did this double, serving the office of
> Theodore Alatsas twice, the second time finding Mr. Alatsas in his
> office. Mr. Alatsas personally signed for the papers.
>
> CPLR 2103 provides, in pertinent part:
>
> Rule 2103. Service of papers. (a) Who can serve. Except where
> otherwise prescribed by law or order of court, papers may be served by
> any person not a party of the age of eighteen years or over.
> (b) Upon an attorney. Except where otherwise prescribed by law or
> order of court, papers to be served upon a party in a pending action
> shall be served upon the party's attorney. Where the same attorney
> appears for two or more parties, only one copy need be served upon the
> attorney. Such service upon an attorney shall be made:
> 1. by delivering the paper to the attorney personally; or
> 2. by mailing the paper to the attorney at the address designated by
> that attorney for that purpose or, if none is designated, at the
> attorney's last known address; service by mail shall be complete upon
> mailing; where a period of time prescribed by law is measured from the
> service of a paper and service is by mail, five days shall be added to
> the prescribed period; or
> 3. if the attorney's office is open, by leaving the paper with a
> person in charge, or if no person is in charge, by leaving it in a
> conspicuous place; or if the attorney's office is not open, by
> depositing the paper, enclosed in a sealed wrapper directed to the
> attorney, in the attorney's office letter drop or box; or
> 4. by leaving it at the attorney's residence within the state with a
> person of suitable age and discretion. Service upon an attorney shall
> not be made at the attorney's residence unless service at the
> attorney's
> office cannot be made; or
>
> It is noteworthy that when this case was presented to the Appellate
> Division, the Appellate Division did not require personal service of
> the brief on the attorneys. Service by e-mail was sufficient.
>
> The case presented here is essentially an appeal of an administrative
> order of the New York Board of Elections which removed the name of the
> petitioner from the ballot. The objector in the Graham and Republican
> Party Case was Bibi S. Khan. However, on the form for general and
> specific objections, Bibi S. Khan listed as her contact person
> Theodore Alatsas. Thus, it was not necessary for the petitioner to
> serve Bibi S. Khan. Service on Theodore Alatsas was sufficient. At the
> same time, it is important to point out that the whereabouts of Bibi
> S. Khan are unknown. Her address of record is 100 Hill Street,
> Brooklyn NY 11208. However, Petitioner has been to that address many
> times and has established from talking to the people who reside at
> that address that Bibi S. Khan does not live there and has not lived
> there since 1997. Petitioner does not know where Bibi S. Khan lives
> now and when asked this direct question during argument of this case
> before Judge Levine in the Supreme Court, Theodore Alatsas did not
> answer the direct questions of where Bibi Khan lives.
>
> A requirement that Petitioner serve the objector directly is unfair
> and unconstitutional when the objector�fs counsel refuses to reveal
> where she lives.
>
> There were three other appeals filed at the same time as Petitioner�fs
> appeal and all of them touch on related issues. In the appeal of Towns
> vs. Joseph from a decision of the Appellate Division - Second
> Department dated August 19, 2004, the fact pattern was the same as
> that of all cases from the King�fs County Supreme Court. There were 42
> cases on the calendar there and in all 42 cases Judge Joseph Levine
> sua sponte questioned the affidavits of service. The case of Towns vs.
> Joseph had exactly the same facts as the case of Andre Soleil. The
> only difference is that Mr. Towns having one million dollars in
> campaign contributions every time he runs in an uncontested race for
> Congress, has a lot of money to pay for an appeal, whereas Mr. Soleil
> does not. Take a look at http://www.fec.gov/2000/nyhse99.htm which
> shows that Ed Towns raised and spent $1,148,894 in the uncontested
> 2000 election.
>
> In the Supreme Court, Judge Levine did not dismiss the original
> petition because Petitioner served the order to show cause himself,
> but rather because Petitioner failed to file the affidavits of service
> BEFORE 9:30 AM. Judge Levine dismissed several other petitions for the
> same reason. Those others have apparently not appealed, but they could
> still appeal, as their statutory time has not yet run.
>
> The two Nassau County cases which are also on appeal to this court
> involve Nassau County judges who ruled in EXACTLY THE OPPOSITE WAY
> from Judge Levine in the instant case, and yet the Second Department
> affirmed those two decisions. Although a different panel of the
> Appellate Division was sitting and the affirmance was on different
> grounds, Petitioner submits that differing decisions by two different
> panels of the same appellate division constitutes ground for this
> Court of Appeals to hear this appeal.
>
> The court in "Matter of Flores v. Kapsis", decided on appeal on August
> 19, 2004, Justice Stack ruled:
>
>
> Respondents' Application to Dismiss
>
> Respondents moved for dismissal of petitioners' application for lack
> of jurisdiction on the grounds of defective service. Respondents
> alleged that pursuant to CPLR §2103 "papers may be served by any
> person not a party [to the action]". They submitted that Michael S.
> Peregine, a respondent, had served the order to show cause and
> accompanying documents. This service was made, as ordered, by
> "delivering a copy thereof to . . . the United States Postal Service .
> . . waiving the requirement of a receipt signature, to each said
>
> respondent's home . . . ." Order to Show Cause, ¶ 4. The same
> direction for service existed for all respondents.
>
> Evidence presented at the hearing demonstrated that counsel for
> petitioners accompanied by respondent Michael S. Peragine, traveled to
> the Hicksville Post Office where the express mail envelopes were
> deposited. Each envelope bore the return address of respondent Michael
> S. Peragine and, in the space provided to waive the receipt signature,
> he placed his initials.
>
> While it is correct that any envelope not delivered would have been
> returned to the respondent's home address and equally correct that he
> controlled the waiver of signature, these factors do not equate with
> "service by a party." The intent of the statute was clearly to avoid
> personal service by one party on another. Further, CPLR §312-a states
> in pertinent part, "As an alternative to methods of personal service .
> . . a notice of petition and petition may be served by the plaintiff
>
> or any other person by mailing to the person . . . to be served."
> Mckinney's Consolidated Laws, CPLR, Article 3
>
> The cases cited by counsel are inapposite in that they refer to
> personal service by one party on the other which service resulted in a
> dismissal of the action. This court does not find respondents'
> argument persuasive in this regard. Accordingly, respondents'
> application to dismiss for lack of jurisdiction is denied.
>
>
> Here it can be seen that the Nassau County Judge decided that the fact
> that petitioner Peragine served the papers himself was not fatal.
>
> In addition, the requirement by Judge Levine that the papers be served
> personally, and only seven hours given to do so, was not in conformity
> with the statute. In his order to show cause, Petitioner copied the
> exact words of a standard form in the book entitled "Election Law
> Forms" page 38. A copy of that page is annexed hereto. The order to
> show cause prepared by Petitioner said:
>
> and that personal service of the Order to Show Cause together with a
> copy of the papers upon which it is granted upon the individual
> respondents-objectors BIBI S. KHAN, THEODORE ALATSAS, KHOURSHED
> CHOWDHURY, DIANE HASLETT RUDIANO, GLADYS PEMBERTON, AARON MASLOW, LORI
> MASLOW, HY SINGER, HARVEY R. CLARKE and KING'S COUNTY REPUBLICAN PARTY
> designated as objectors be dispensed with, and that service of a copy
> of this order upon said respondent-objectors be made by enclosing the
> same in a securely sealed and duly postpaid wrapper addressed and
> mailed to each of the said respondent-objectors on or before the _____
> day of August, 2004 be deemed good and sufficient service thereof.
>
> As can be seen, that is word for word exactly the same language that
> is used in the book "Election Law Forms". The same or very similar
> language is also used in Bender�fs Forms, McKinney�fs Forms and every
> other book of forms dealing with New York Election Law. Thus, Judge
> Levine made his own special rules, rules which have not been made by
> any other New York Supreme Court Judge.
>
> The end result was that on August 9, 2004 there were 42 cases on Judge
> Levine�fs Election Law calendar and in each and every one of those 42
> cases Judge Levine sua sponte raised the issue of affidavit if
> service, even though in almost every case the opposing party was
> present in court and was not contesting service. In all but one of
> those 42 cases, Judge Levine dismissed the petition on affidavit of
> service grounds. In the remaining case, Judge Levine dismissed the
> petition on a different grounds. In is important to note that in
> almost all of those 42 cases, the petitioner was represented by highly
> paid and highly qualified counsel. It is a remarkable fact that in 42
> cases (not counting Petitioner�fs two cases) none of those 40
> attorneys could seem to put together a simple affidavit of service
> that would satisfy Judge Levine.
>
> The end result of the present cases now on appeal is not merely that
> the voters in the Tenth Congressional District are deprived of the
> right to vote for Petitioner. Rather, they are deprived of the right
> to vote AT ALL.
>
> As a result of these two contradictory decisions, the September 14,
> 2004 primary will be uncontested and the November 2, 2004 General
> Election will also be uncontested. Mr. Towns will have been re-elected
> without facing an opponent. This raises a Constitutional question.
>
> It is noteworthy that Mr. Towns has never faced a seriously contested
> election since 1990, when Barry Ford last ran. One wonders how many
> other times Mr. Towns has succeeded in having ALL of his opponents
> thrown off the ballot. One also wonders what Mr. Towns does with the
> ONE MILLION DOLLARS he reports to the Federal Election Commission that
> he has received in campaign contributions every two years to fight
> these uncontested races. Again, take a look at
> http://www.fec.gov/2000/nyhse99.htm which shows that Ed Towns raised
> and spent $1,148,894 in the uncontested 2000 election.
>
> Another appeal to this court, also involving Nassau County, but
> decided by a different judge, also pertains to an issue in this case.
> In Fischer v. Peragine, Justice De Maro held:
>
> "The only issue remaining for the Court to address is the avowed
> policy of respondents, Chairman, Peragine and Vice Chair Bonnie Green,
> to add a substantial number of candidate names for Committee members,
> to nominating petitions, without the permission of such candidate.
> Where the names of persons are put on the ballot as candidates without
> their consent there is a "fraud" committed on the voters of the same
> party. Richardson v. Luizzo, 64 AD2d 942 affd. 45 NY2d 789."
>
> In conclusion, the court found the respondents guilty of this fraud
> and barred them from holding party office.
>
> In the petition here, Petitioner alleges the exact same fraud.
> Petitioner alleges that he, Sam Sloan, is the real Republican Party
> Candidate for US Congress. At a candidate�fs meeting in Bay Ridge
> Manor on May 5, 2004, Petitioner was grantee a Wilson-Pakula by a
> majority vote of those present and was nominated as a candidate for US
> Congress. However, eight days later the Party had petitions printed
> listing Adrienne Britton as the candidate, even though Adrinne had not
> been informed of this nor had she consented to have her name on the
> petitions. After Adrienne Britton protested, her name was removed and
> instead the name of Isabelle Jefferson was put on the petitions.
> Isabelle Jefferson was not informed of this either and in fact had
> gone to Charleston, South Carolina for three months to stay with her
> family there. By the time Isabelle Jefferson returned to New York,
> signatures had already been collected and she was on the ballot. She
> immediately objected. Then, her name was taken off and the name of
> Harvey Clarke, a newly registered voter, was put on.
>
> All this was obviously a conspiracy to stop Sam Sloan from being the
> candidate.
>
> Thus, the Republican Party Officials are ALL GUILTY OF FRAUD by
> putting first the name of Adrienne Britton and then the name of
> Isabelle Jefferson on the nominating petitions without informing
> either of them of this.
>
> This case should be remanded for hearings on these issues.
>
> It is noteworthy that the local press has commented on this situation.
> For example, Flatbush Life for August 23, 2004, page 10 and at
> http://www.lidbrooklyn.org/bp082304.htm states:
>
> "Sloan�fs effort was an example of how impossible it can be for a
> non-lawyer to run for office and navigate the legal system on his
> own."
>
> Similarly, an article dated July 19, 2004 appearing in Bay News, page
> 10 and at http://www.lidbrooklyn.org/bp071904.htm states the
> following:
>
> "A federal judge said he was inclined to agree with Sam Sloan's
> argument that Sloan received a valid Wilson-Pakula from the Republican
> Party, qualifying him to seek ballot access on the Republican line.
> Unfortunately for Sloan, the case was heard just a week before the
> petition deadline, leaving him with the impossible task of getting
> valid signatures from 886 registered Republicans in the 11th
> Congressional District by midnight on July 15."
>
> Please note the repeated use of the word IMPOSSIBLE to describe
> Petitioner�fs situation. This raises issues of Constitutional
> proportions.
>
> POINT II
>
> THE ACTUAL OBJECTOR TO THIS PETITION IS THE CHAIRMAN OF A PARTY
> COMMITTEE, WHO IS BARRED BY STATUTE FROM OBJECTING.
>
> It is completely clear that the law specifically prohibits the
> Chairman of a Party Committee, any party, even a different party, from
> objecting to a petition when that objection would result in a primary
> election being cancelled.
>
> Election Law Section 16-102 states:
>
> S 16-102. Proceedings as to designations and nominations, primary
> elections, etc. 1. The nomination or designation of any candidate for
> any public office or party position or any independent nomination, or
> the holding of an uncontested primary election, by reason of a
> petition for an opportunity to ballot having been filed, or the
> election of any person to any party position may be contested in a
> proceeding instituted in the supreme court by any aggrieved candidate,
> or by the chairman of any party committee or by a person who shall
> have filed objections, as provided in this chapter, except that the
> chairman of a party committee may not bring a proceeding with respect
> to a designation or the holding of an otherwise uncontested primary.
>
> The operative words in the above paragraph are: "except that the
> chairman of a party committee may not bring a proceeding with respect
> to a designation or the holding of an otherwise uncontested primary."
>
> In Soda v. Dahlke, decided August 18, 2004,
> http://www.courts.state.ny.us/repor.../2004_06380.htm ,
> the Appellate Division - Fourth Department ruled that the Chairman of
> the Democratic Party could not object to a petition with respect to a
> candidate in the Independence Party.
>
> In each of my cases, the objector was not an opposing candidate, since
> there was no opposing candidate except for Ed Towns who did not
> object, but rather the Chairman of the party through the Party
> Counsel. Mr. Theodore Alatsas representing the Republican Party
> objected to my Republican Party petition and Mr. Gary Sinawski
> representing the King's County Independence Party objected to my
> Independence Party Petition.
>
> In the case presented here, the nominal objector did not appear. Only
> the General Counsel to the Kings County Republican Party appeared. Who
> paid the fees of this attorney? Did the nominal objector pay? I doubt
> it, since the nominal objector did not come to the hearing. If the
> Republican Party paid, this may constitute a criminal offense of
> misuse of party funds.
>
> The nominal objector is just a front. She is not a candidate and has
> no reason to object. However, the Chairman wants to keep control of
> his party by making sure that only the persons he designates gets on
> the ballot and no primary election is held. It is precisely because
> the Chairman of a Party would want to keep the party under his
> personal control to the exclusion of the voters and the other members
> of his party that New York State Law prohibits the Chairman of any
> Party Committee from objecting to a Petition, if the result is that
> there is no primary election. The relevant case law is: Davis v.
> Dutchess County Board of Elections 153 AD 2d 716, 544 NYS 2d 683 (1989
> 2d Dept.), Matter of Crawley v Board of Elections of County of
> Rensselaer, 218 AD2d 914, 915, lv denied 86 NY2d 704; Matter of
> Maltese v Anderson, 264 AD2d 457; Matter of Grogan v Conservative
> Party of N.Y. State, 77 AD2d 736, 736-737), Soda v. Dahlke, decided
> August 18, 2004,
> http://www.courts.state.ny.us/repor.../2004_06380.htm In
> short, this Bibi Khan, who is an employee of the party, is obviously a
> front. The actual objector is the Party Chairman. The Party Chairman
> and his counsel have committed a fraud on the other members of his
> party, on the Board of Elections and ultimately on the voters by
> putting up this front person to play the role of objector, when the
> Chairman, who is barred from this activity, is the real objector.
>
> POINT III
>
> ON THE MERITS, PETITIONER MUST PREVAIL
>
> Here and in the court below and in the parallel federal case, opposing
> counsel has cited Montano v. Lefkowitz, 575 F.2d 378 (2d Cir. 1978).
> However, Federal Judge David Trager, who has already heard argument on
> this issue, has rejected the contention of the Republican Party.
>
> Montano v. Lefkowitz presented almost the opposite situation. There,
> the Executive Committee of the Bronx County Republican Party appointed
> a candidate to fill a vacancy. However, the vacancy was in a
> predominantly Black Congressional District. Most of the committee
> members who voted resided outside the district and were White. A Group
> of Black voters petitioned the court to invalidate the choice made by
> the White guys as to who would represent the Black Congressional
> District.
>
> In the case presented here, however, I am the outsider and the
> respondents are the insiders. They nominated me as their candidate.
> Subsequently, they changed their minds. Now, they do not want me any
> more. However, they did not re-vote the issue, because they realize
> that I have substantial support within the party and would win a
> revote, so they seek to invalidate the election of me by claiming that
> they did not follow their own rules.
>
> Their contention is that some of the people at the Executive Committee
> meeting who voted for me do not reside in my Congressional District
> and therefore the vote was invalid. However, Judge David Trager ruled
> that provided I can establish at a hearing that even excluding all
> those votes by non-residents of the Tenth Congressional District I
> still have a majority, then I win anyway. Since the number of votes
> against me was very small and the vote in my favor was overwhelming, I
> am confident I can prevail on this issue. The Republicans are not even
> disputing this point.
>
> CONCLUSION
>
> For all of the reasons set forth above, this writ must be granted and
> this court must issue a temporary restraining order and a preliminary
> and permanent injunction granting the following:
>
> 1. A preliminary and permanent injunction requiring that the name of
> the Petitioner be placed on the ballot as a candidate for Congress for
> the Tenth Congressional District.
>
> 2. A preliminary and permanent injunction requiring that the name of
> the Petitioner be placed on the ballot in the General Election in
> November as a candidate for Congress from the 10th Congressional
> District.
>
> 3. An Order declaring valid, proper and legally effective the
> designating petitions heretofore filed in the office of the Board of
> Elections of the City of New York designating the petitioner herein,
> Samuel H. Sloan, as a candidate in the Republican to be held on
> September 14, 2004 for election to the Office of Congressman in the
> United States Congress representing the 10th Congressional District of
> Brooklyn New York; and
>
> 4. An Order directing, requiring and commanding the Board of Elections
> in the City of New York to place and print the name of the petitioner
> herein on the ballot as a candidate for election to the United States
> Congress from the Tenth Congressional District in the Republican to be
> held on September 14, 2004; and
>
> 5. An order enjoining and restraining the said Board of Elections in
> the City of New York from printing, issuing or distributing for use
> during said Election in the Tenth Congressional District any official
> ballot upon which the name of the petitioner does not appear as a
> candidate for election to the United States Congress.
>
> 6. Such other and further relief as may be just and equitable.
>
> Dated: October 28, 2004
>
> Respectfully
> Submitted,
>
>
>
>
> Samuel H. Sloan
>