Reese v. Erie County Board of Elections Oral Argument

STATE OF NEW YORK COUNTY OF ERIE
SUPREME COURT PART 19
************************************X
In the Matter of the Application of

LYNN M. DEARMYER-LEE
Petitioner,
ORDER TO SHOW CAUSE
-vs- INDEX NO. 2019-00060
PETER A. REESE
ERIE COUNTY BOARD OF ELECTIONS

JEREMY ZELLNER and RALPH MOHR,
Commissioners of and Constituting
the Erie County Board of Elections
Respondents.
************************************X
Matter of PETER A. REESE
Petitioner,
ORDER TO SHOW CAUSE

-vs- INDEX NO. 2019-00071
ERIE COUNTY BOARD OF ELECTIONS

JEREMY ZELLNER, as Commissioner of the
Erie County Board of Elections and
RALPH MOHR, as Commissioner of
the Erie County Board of Elections
LYNN M. DEARMYER-LEE, Objector
Respondents.
************************************X
25 Delaware Avenue,
Buffalo, New York 14202
May 2, 2019
HELD BEFORE: HONORABLE CHRISTOPHER J. BURNS
SUPREME COURT JUSTICE
APPEARANCES: JESSICA KULPIT, ESQ.

BRITTANYLEE PENBERTHY, ESQ.
Appearing for Petitioner/Respondent
Lynn M. Dearmyer-Lee.
PETER A. REESE, ESQ., Pro Se

JAMES OSTROWSKI, ESQ., Of Counsel
Appearing for Respondent/Petitioner
Peter A. Reese
MICHAEL A. SIRAGUSA, ESQ.

ERIE COUNTY ATTORNEY
JEREMY C. TOTH, ESQ.
Second Assistant County Attorney
Appearing for the Erie County
Board of Elections
KIM M. BUCK
SUPREME COURT REPORTER
3
OTSC - Dearmyer-Lee - Reese - Board of Elections
1 THE COURT: Miss Kulpit.
2 MS. KULPIT: Good morning, Your Honor.
3 Jessica Kulpit on behalf of Miss Dearmyer-Lee. We are
4 here today on an election law civil proceeding that
5 commenced with the assignment of Your Honor on Order to
6 Show Cause Index Number 2019-60. Lynn Dearmyer-Lee
7 versus Peter Reese and Erie County Board of Elections.
8 I, along with Miss Brittany Penberthy, represent
9 Miss Dearmyer-Lee. Subsequent to the filing of the
10 Order to Show Cause, because we had not yet had a Board
11 ruling, Mr. Reese did file a Order to Show Cause
12 2019-71 thereby making him a petitioner and the Erie
13 County Board of Elections and Miss Dearmyer-Lee the
14 respondents. All responses have been filed, and if the
15 Court would like me to continue, I certainly can.
16 THE COURT: All right. Are there -- are
17 there parts of this that can be dealt with in a shorter
18 manner than others, specifically Mr. Toth's, or are
19 you --
20 MS. KULPIT: I have a suggestion, Judge.
21 THE COURT: -- are you confident in the order
22 of things here?
23 MS. KULPIT: Judge, we would leave it to the
24 sound discretion of how the Court would like to proceed
25 in this matter. Because at the time we filed our Order

4
1 to Show Cause Index Number 60 we didn't have the
2 Board's findings.
3 THE COURT: Okay.
4 MS. KULPIT: I believe it would make the most
5 sense, and to be economical of the Court's time and
6 resources, if we handled Mr. Reese's petition or Order
7 to Show Cause first --
8 THE COURT: Okay.
9 MS. KULPIT: -- as the Board found him
10 delinquent with respect to signatures.
11 THE COURT: That's fine.
12 MR. REESE: Your Honor, with respect to that,
13 we're not really sure, we believe that the first
14 petition filed is now moot in view of the fact that the
15 Board invalidated the petition. It was filed as an
16 anticipatory in order for them to mark time on the
17 clock with a fourteen-day statute of limitations and we
18 believe that issue is now moot. It was filed on the
19 contingency that the Board would validate, the Board
20 did not. So I don't know that that matter is even
21 before the Court at this point in time or that it
22 should be.
23 THE COURT: What say you, is there any relief
24 that's available with regard to that issue?
25 MS. KULPIT: As that matter was still pending

5
1 and we consented to the adjournment because Mr. Reese
2 indicated he would be filing a validation, I do not
3 believe it's a moot issue. If the Court were to hear
4 Mr. Reese's petition, and we certainly have reasons we
5 think the Court does not need to take witness or
6 testimony this morning, and find that there are a valid
7 number of signatures, absolutely the Order to Show
8 Cause is valid, specifically with the fraud allegations
9 that have been set forth as the Board will not
10 determine those. That has to be done in front of Your
11 Honor.
12 MR. TOTH: Your Honor, and I'll confirm that.
13 The Board makes no determination based on fraud with
14 respect to the invalidation proceeding and/or the
15 validation proceeding. I brought over, pursuant to
16 Your Honor's various orders, all of the original
17 documents including Mr. Reese's designating petition
18 and the objections that were reviewed. There are only
19 a handful of objections where my clients split, meaning
20 that Ralph Mohr reached one conclusion, Jeremy Zellner
21 reached another. I'm not particularly interested in
22 defending those splits or -- I mean, however Your Honor
23 wants to proceed on that, but these documents are here
24 in anticipation of Miss Kulpit's allegations on fraud.
25 THE COURT: Okay. Thank you.

6
1 MR. REESE: Your Honor, if I may be heard on
2 the fraud. We want to move to dismiss any of the fraud
3 allegations as we state clearly in our papers it's a
4 very small number of fraud allegations. There's not
5 enough to make a difference with respect to this case
6 and under the law we need to get that out of the way.
7 It's just irrelevant at this point in time.
8 MS. KULPIT: Judge, absolutely not. I can't
9 disagree with Mr. Reese more. Although we specified
10 many of the fraud allegations giving them people's
11 names and addresses, and then cc'd as properly
12 indicated by the CPLR to Mr. Reese those subpoenas that
13 were sent. There are numerous fraud allegations that
14 are preserved, added and included in the petition from
15 the specific objections. So while we specified
16 multiple persons, and it absolutely can make a
17 difference if the Court were to somehow, and I do
18 not -- do not believe that you should, but somehow were
19 to find Mr. Reese have the valid number of signatures,
20 the fraud, even if it was line by line and with respect
21 to these specific witnesses, is so permeated throughout
22 it should --
23 THE COURT: Well, let's go back to the first
24 point for a minute. If signatures -- if a sufficient
25 number of signatures were disqualified, that really

7
1 makes that argument irrelevant.
2 MS. KULPIT: Absolutely.
3 THE COURT: Now, and what your point is, I
4 think, that if for some reason the Court finds
5 differently then you would want that to regenerate and
6 be able to argue it.
7 MS. KULPIT: Which is why we have not
8 withdrawn the petition.
9 THE COURT: Okay. But right now I'm going to
10 just set that aside because for our purposes at quarter
11 to 10:00 it's not relevant.
12 MR. REESE: Understood. We accept that, Your
13 Honor. We would like to reserve opportunity for
14 further argument should it become relevant.
15 THE COURT: Sure. Fine.
16 MR. REESE: Understood.
17 THE COURT: Okay.
18 MS. KULPIT: Judge, then if the Court is
19 proceeding in the manner as I suggest and we would
20 defer to the Court, I would turn to index number
21 2017-71 which is Mr. Reese's Order to Show Cause. I
22 could certainly respond with why I believe the Court
23 should uphold the findings of the Board, reject the
24 other arguments, but if Mr. Reese wants to be heard
25 first as it is his order.

8
1 THE COURT: Okay. Mr. Reese?
2 MR. REESE: Your Honor, with respect to Index
3 Number 71, which is our action to validate, at this
4 point in time I want to move for a default judgment
5 against the Board due to a defective verification. I
6 have a letter for the Court. This was delivered to
7 Mr. Toth via email and in court today. Mr. Toth has
8 failed to state why the verification is not being done
9 by a party as required by CPLR 3021. Mr. Toth made the
10 verification without being, quote, acquainted with the
11 facts per CPLR -- per the CPLR, Your Honor. Mr. Toth
12 purports to verify on information and belief based on
13 review of Board records that are not specified.
14 However, there are not factual allegations made on
15 information and belief so it -- the -- the verification
16 makes no sense. Mr. Toth can't possibly know the facts
17 that he alleges. For instance, he claims that none of
18 these objections were propounded at the Board. He's
19 not at the Board. He's with the county attorney's
20 office on the sixteenth floor as far as I know. I was
21 rather stunned to have him make the verification as a
22 non-party. I believe that his answer in this, his
23 verified answer is defective as a matter of law and we
24 received nothing so far that would correct that in any
25 manner, shape or form.

9
1 MR. TOTH: Your Honor, I did receive
2 Mr. Reese's letter. 3020(d)2 allows verification by
3 anybody who's acquainted with the facts if the
4 respondent is a government official. In this case,
5 obviously where a government official is standard
6 practice in Article 78s for attorneys representing the
7 various agency to sign the verification. I don't think
8 Mr. Reese's argument has any merit, but if Your Honor
9 would, you know, would prefer a verification from
10 someone else, I can spend the day trying to figure out
11 who's most appropriate. I think the reason the CPLR
12 allows attorneys to verify on behalf of government
13 agencies is because often times the allegations are so
14 far afield and so widespread that it's difficult to
15 find one particular person who has all of the necessary
16 facts. I think that's why it says a person acquainted
17 with. And I am acquainted with it, because I have all
18 of the original documents right here. My answer is
19 based on these documents and then the other parts of my
20 answer are based on the law.
21 THE COURT: All right. I'm ruling that the
22 verification is sufficient.
23 MR. REESE: Your Honor, I'd also like to move
24 at this point for a summary judgment against both the
25 objector and the Board based on the implied admission

10
1 that the purported specific objections which were made,
2 were made without examining actual records of the Board
3 which is a violation of the intent of the election law.
4 In addition to that, Your Honor, they have failed to
5 deny paragraphs twenty-eight, twenty-nine and thirty of
6 our petition which basically indicates that objections
7 made without access to Board records are intrinsically
8 defective. It makes no sense. If you object to
9 someone's signature without looking at it, all you're
10 doing is burdening the people and whoever is a
11 candidate with doing your job for you. And we'll get
12 into this further, but we literally had a snowstorm of
13 objections here, many of which we'll demonstrate via
14 sample and a witness are essentially frivolous. There
15 was no problem whatsoever finding these people. You
16 have a petition with a signature and an address by it.
17 Just because you can't read the squiggle signature of
18 someone doesn't mean that's not their signature. And
19 we'll show you a number of such, you know, signatures.
20 And there were situations where four, five and six
21 objections were filed to this and we found those voters
22 almost instantaneously, and the Board did too.
23 Furthermore, to make them without -- to make such
24 objections is essentially turning the statutory scheme
25 upside down. Our signatures are valid. I submitted

11
1 twenty-one sixty-four. If there were no objections,
2 there were no objector, I'm on the ballot. Each and
3 every one of my signatures is presumed valid. It's up
4 to them to prove that they're not good, not me.
5 They're essentially attempting to reverse the burden of
6 proof here. This is totally unacceptable. It makes no
7 sense whatsoever. It puts an undue burden on me as
8 well as the people to clean up this junk and shovel
9 through stuff that as far as we know could have been
10 generated by a random number generator.
11 THE COURT: All right. Hang on. Response so
12 far.
13 MS. KULPIT: Judge, we believe that the
14 petition, our verified response is absolutely
15 sufficient. There's nothing in the CPLR or the
16 election law that requires somebody to go and review
17 Board signatures. We don't think that --
18 THE COURT: Well, your -- part of your
19 objection is that the signature on the petition doesn't
20 match the one that's registered, right?
21 MS. KULPIT: Correct, Your Honor.
22 THE COURT: Okay. So I think we can all
23 agree sometimes someone's signature is essentially a
24 horizontal line.
25 MS. KULPIT: Sure.

12
1 THE COURT: All right. And we can all agree
2 that sometimes people print their signatures.
3 MS. KULPIT: And I would submit that printing
4 is not acceptable in this particular arena, but as a
5 general statement, Judge, I agree.
6 THE COURT: Okay. So how do you know if you
7 don't compare the two?
8 MS. KULPIT: One, Judge, if it's
9 unrecognizable and we can't figure out who it is or
10 what it is, then we certainly meet the objection.
11 THE COURT: Well, there's a printed name and
12 a signature, correct?
13 MS. KULPIT: No, there is no print. If you
14 look at the --
15 THE COURT: Some don't?
16 MS. KULPIT: There is no printed name ever on
17 a petition that should be considered by the Court and
18 it's certainly not print and then signed. But, Judge,
19 just to speed up the process, parties have access to
20 what's called VAN which is a paid subscription to have
21 the most recent voter info. It is absolutely a legal
22 process to use during campaigns and then it doesn't
23 require you to go to the Board. So the argument that
24 Mr. Reese is making is twofold. One, we were just
25 making it up, or two, we must have been, for lack of a

13
1 better word, cheating or doing something unscrupulous.
2 THE COURT: Well, hang on.
3 MS. KULPIT: Neither occurred.
4 MR. REESE: Your Honor, that's not in the
5 pleadings.
6 THE COURT: Hold on. I misspoke. I didn't
7 mean to suggest that they're printed and signed. You
8 have an address, so you match up that --
9 MS. KULPIT: Right.
10 THE COURT: -- with whatever records you
11 have.
12 MS. KULPIT: Correct. And we didn't plead it
13 because we don't believe Mr. Reese has even made an
14 argument why the signatures should go back on. His
15 argument here today of burden shifting is inaccurate.
16 We made specific objections. If you go through,
17 there's a hundred and forty-four pages, two thousand,
18 one hundred and sixty-four signatures were scrupulously
19 reviewed.
20 THE COURT: I looked at every one of them
21 actually.
22 MS. KULPIT: And so you can see, Your Honor,
23 we made specific objections. We didn't take line one
24 through twenty or page one through sixty and put down
25 all twenty-five acceptable objections. We did it line

14
1 by line, modifying, agreeing on many of the pages. Not
2 objecting to each and every one of them.
3 THE COURT: Mr. Reese, doesn't it come down
4 to showing a hundred and sixty-seven valid signatures?
5 MR. REESE: Actually, Your Honor, our main
6 thrust in our papers is that the objections are not
7 that valid in any manner. In fact, what we -- what we
8 have pled is that there is no objection here,
9 therefore, we have twenty-one sixty-four valid. That's
10 the thrust of our case, excuse me. And I -- I hasten
11 to add that the VAN system has never shown up in this
12 proceeding. It didn't show up at the Board of
13 Elections. It hasn't showed up in their pleadings.
14 Now suddenly we have the VAN system. If she believes
15 that the VAN system would enable them to actually
16 verify the statements they made in their papers, at one
17 point I believe they say, oh, four hundred and
18 eighty-seven signatures didn't match the voter
19 registration cards. Not four hundred and eighty-six,
20 not four hundred and eighty-eight. Four hundred and
21 eighty-seven. That's a verified petition of the
22 petitioner in the first action, the 60 action, the
23 petition to invalidate. If that's true, let them
24 demonstrate that they actually did that and that they
25 did something. That's why we've subpoenaed the

15
1 objector. We need to find out just how this did get
2 done, because it looked like black magic to us. No one
3 went to the Board of Elections to look up anything as
4 we were required to. And they've never -- this is the
5 first time right now that this has been brought up.
6 MS. KULPIT: Absolutely not, Judge. I am
7 under no obligation, nor is the objector or anybody
8 else to tell another party how something is done. We
9 went into the Board, the Board made the determination.
10 We're asking the Court to uphold that determination and
11 we're here today because Mr. Reese is deficient of a
12 hundred and sixty-seven signatures. There's nothing in
13 the CPLR or the election law that says tell your
14 opponent how you did it, and that's what he's
15 suggesting here.
16 THE COURT: Mr. Toth?
17 MR. TOTH: Your Honor, just I have also
18 brought with me various other documents, original
19 documents that were part of your subpoena. This is
20 the -- these are the FOIL records that were pulled that
21 on their face appear to have something to do with
22 Mr. Reese's allegations. Thinking that we may have
23 missed some, because they're not all clear, I brought
24 over every FOIL request that we received for the last,
25 I think it began in mid March.

16
1 THE COURT: Okay.
2 MR. TOTH: So I believe, though I don't know,
3 but I believe perhaps the answers are in here, but we
4 don't require people to tell us why it is they want
5 something. We're not allowed to, really. We just give
6 them the documents. So it's entirely possible,
7 probably even likely that the conspiracy theory where
8 the Board helped Miss Kulpit's client is actually
9 probably somehow answerable by one of these pieces of
10 paper.
11 THE COURT: Okay.
12 MR. REESE: Your Honor, again, it's burden
13 shifting here. If they -- if they felt that their
14 objections were good, the burden is on them to
15 demonstrate it, not me.
16 MR. TOTH: Your Honor, if I could just say
17 one more thing on that and I meant to say it, is that
18 this is a validation proceeding so the burden actually
19 is on Mr. Reese, not on anybody else.
20 THE COURT: Hm-hm.
21 MR. REESE: Your Honor, finally, if I may, to
22 continue on.
23 THE COURT: Well, let me ask you a quick
24 question. I think you made the point that, let's say
25 there were multiple objections to one particular

17
1 signature and you found that to be improper somehow I
2 think.
3 MR. REESE: Well, Your Honor, it's just
4 essentially throwing darts at a board. And we can give
5 you examples of that where -- I mean, it was very easy
6 to find a signature. It's hard to believe that anyone
7 who had access to signatures or addresses of these
8 people could not find them, and we will give you some
9 illustrations of that. We may need access to --
10 THE COURT: Well, it's in your papers. I
11 guess my point is, it's perfectly possible, is it not,
12 to have one, two and maybe three objections to any
13 particular line?
14 MR. REESE: Well, they could well be, Your
15 Honor, but we, in many cases we ran into the situation
16 where there were multiple objections, four, five and
17 six and none of them held true. We found the person
18 right away. And of course many of these multiple, you
19 know, objection signatures were rejected by the Board
20 itself. Hundreds and hundreds of them. I mean, I
21 think this is a demonstration as to just -- just what a
22 dartboard approach this was.
23 THE COURT: Okay. Miss Kulpit?
24 MS. KULPIT: Judge, in response to that, I
25 would just reiterate that we're here because Mr. Reese

18
1 has the burden to prove that he has a valid number of
2 signatures, not because I need to say that what the
3 Board did below was proper, and we submit it was. But,
4 two, Mr. Reese has not pled in his Order to Show Cause
5 or asked this Court to review line by line this
6 petition or revalidate any of the signatures.
7 THE COURT: Okay. Well, that -- that
8 revisits my prior question. Are there a hundred and
9 sixty-seven valid signatures?
10 MR. REESE: Your Honor, we have not pled
11 that, because we don't think the objection is good.
12 We've not asked the Court to do that, because we
13 believe our argument is good on the law and the facts
14 with respect to the objections. We are not going to
15 ask this Court to do a line-by-line review.
16 THE COURT: Okay.
17 MS. KULPIT: We'd ask the Court uphold the
18 Board's finding. The petitioner has not brought any
19 specific or sufficient evidence before Your Honor to
20 indicate the allegations he's making today and there is
21 no further need for testimony or witnesses.
22 THE COURT: Any further issues?
23 MR. REESE: Your Honor, I haven't -- I
24 haven't completed my summary judgment argument for the
25 record here.
19
1 THE COURT: Go ahead.
2 MR. REESE: I would also like to point out in
3 our petition, paragraph thirty, we lay out categories
4 of objections that cannot be made without access to
5 Board records or some other system which they seem to
6 have magically brought up here that could give us this
7 information. This would include, for instance, a 5(a)
8 objection of persons whose signatures are not
9 identifiable. I won't read them all, but another one
10 is 8(a) of persons whose names are hand printed. For
11 the record, the Board was accepting hand printed names
12 when the printing on the full voter registration card
13 seemed to match the signatures that were, you know,
14 seemed to match the printing on the petition. Easier
15 to demonstrate this than anything else.
16 THE COURT: Well, that was my previous
17 question. There are different signature styles,
18 correct?
19 MR. REESE: Well, correct, but --
20 THE COURT: Correct?
21 MS. KULPIT: Sure.
22 THE COURT: And it may or may not match the
23 registration that the Board has.
24 MR. REESE: Your Honor, the Board
25 registration card, and if you'll give me a second I

20
1 could demonstrate that or perhaps we can get into it
2 further in other testimony. The Board registration
3 card, generally people print their name, their address,
4 whatever else they put down on it and then they sign
5 their name at the bottom. Now, if they print their
6 name at the bottom in the signature line, that's their
7 signature. Obviously a person's signature is whatever
8 they say it is. Typically people sign in script at the
9 bottom. But the Board, in the review of this petition
10 and from what I can see review of other petition
11 processes this year, was effectively saying, well,
12 let's see the full registration card.
13 Let me add one other thing. What we can see at
14 the user work stations at the Board is different from
15 what the Board employees can see, all right, that's a
16 major point. I can't see the full voter registration
17 card at the user work stations, what's available to me.
18 That's only available to Board employees. And at the
19 hearing of the matter, the Board employees could pull
20 up an image of the full registration card. At the work
21 stations all I can see is a clipped image at the bottom
22 of the person's signature. None of the other
23 information is available. So if I'm working at a work
24 station and I see a script signature and something's
25 printed, it's not possible for me to verify that that

21
1 was their signature until I get access to the Board
2 system. Now, we had access to the Board system at the
3 hearing in this matter, which took place over the
4 course of two days, and at that point in time many
5 signatures were validated by the Board because the
6 printing on the card obviously matched what the printed
7 signature was. And, again, people don't sign their
8 name the same way ever. I've never signed my name
9 twice. I'm not a machine. I can't do it. And many
10 people's signatures just aren't recognizable. That's
11 all there is to it. Mine tends to be but many people's
12 aren't. We have one witness who essentially did a
13 starburst, and, you know, there's no way you can say,
14 oh, that's a bad -- that's a bad signature without
15 looking at a record somewhere to see what that person's
16 actual signature is, unless you're just going in the
17 dark and say I can't recognize it so it can't be their
18 signature. That's not good enough for a specific
19 objection.
20 THE COURT: Let Miss Kulpit respond.
21 MS. KULPIT: Your Honor, I think we're going
22 round and round here making two separate arguments. I
23 think Mr. Reese has just demonstrated the time and
24 consideration that the Board gave each and every line
25 of this hundred and forty-four pages of every single

22
1 two thousand, one hundred and sixty-four signatures.
2 He has put on the record how they have scrupulously
3 went through each and every one of them. Again, I
4 would reiterate my argument that it's not my burden, it
5 is not required under the CPLR, the election law, or
6 this Order to Show Cause to tell you how I did it. The
7 objections are specific. They have not pointed to
8 anything within the law that in conclusory allegations
9 that we didn't do it right and they're too broad. He
10 did get back some of those signatures at the Board over
11 our objection.
12 THE COURT: Okay. So it brings us full
13 circle then, because you've already had a proceeding at
14 the Board, you've already gone through the signatures
15 and they have determined that you're short. So where
16 are the valid signatures that puts you over the top?
17 MR. REESE: Your Honor, if we throw the
18 objection out I'm on the ballot. There was one case
19 for the school board --
20 THE COURT: What if we don't?
21 MR. REESE: Well, if we don't, then I'm done
22 and we can think about appealing, Your Honor. We have
23 to make our legal arguments and bring in witnesses and
24 have a record here.
25 THE COURT: But do you have any specifics as

23
1 to how many signatures you claim besides the couple
2 thousand?
3 MR. REESE: Twenty-one sixty-four I claim,
4 Your Honor.
5 THE COURT: Okay.
6 MR. REESE: I mean, that's -- that's
7 essentially our allegation. If there were no objection
8 we'd have twenty-one sixty-four. Now, Your Honor --
9 THE COURT: Let's presume there are
10 objections and you need a hundred and sixty-seven
11 signatures. Let's presume that for a second.
12 MR. REESE: Well, Your Honor, I would like to
13 respond to Miss Kulpit. First off, they laid a burden
14 on the Board to shovel through all of this and find
15 things that is not appropriate. The objections have to
16 be specific. I believe this is a case of first
17 impression in terms of definitions. And if we want to
18 talk about definitions of what's specific, probably not
19 a bad idea to go somewhere -- and I apologize for my
20 froggy throat. We can look in the dictionary or we can
21 look at Black's Law. But specific essentially is
22 defined as particular, specified, certain, fixed, set,
23 determined, distinct, separate, definite, precise.
24 Under Black's Law -- that's the general dictionary.
25 Under Black's Law, precisely formulated or restricted,

24
1 definite, explicit, of an exact or particular nature.
2 That's essentially what Black's Law tells us. We don't
3 have any other guidance because we have no case law.
4 What does it take to make somebody a specific
5 objection. And as far as I'm concerned it's not just
6 darts thrown at a board. Now, the mechanics of this
7 are different also. I get served with specific
8 objections and we went down and did a random sample of
9 ten and thought that most of it was sewage. We did not
10 have the resources to go through and shovel all of this
11 nonsense out of the way. We had to wait for the Board.
12 And when they gave us worksheets that actually told us
13 how many they could find, we didn't need to go get
14 those, and we then could concentrate on the things that
15 the Board could not find, and we found many of those.
16 So there is no reason why I or the Board should have
17 the burden of shoveling through the nonsense that they
18 filed here. What we're saying is that this was not a
19 specific objection within the meaning of the law or the
20 meaning of words.
21 THE COURT: I understand your position.
22 Mr. Toth?
23 MR. TOTH: Your Honor, on behalf of the Board
24 this is exactly how objections have always been done.
25 A signature of somebody who lives outside of the

25
1 district that we're talking about, who is not
2 registered in the party that we're talking about, and
3 maybe isn't registered at all, that would generate
4 three objections. And the smart objector, not wanting
5 to lose jurisdiction in a Court like this, raises all
6 three objections to preserve any Court action. There's
7 no case law supporting anything that Mr. Reese is
8 saying. There's no case law that --
9 THE COURT: Now, it's possible that two out
10 of the three objections are disallowed. That doesn't
11 make it a scattergun approach necessarily.
12 MR. REESE: I think we can demonstrate that
13 it is a scattergun approach, Your Honor. And what
14 Mr. Toth just said, that's why we're here. Yes, it has
15 been going on for years. The machine always attacks
16 people who are challenging it with boatloads of
17 objections of this variety. That's what's been going
18 on, it's been happening for years and we believe it's
19 time for it to stop. That's why we're here arguing
20 this today.
21 If I might, just -- we have another motion for
22 summary against objector and Board based on objector's
23 admissions of using Board records unavailable to the
24 public. Now, when we made out these notes reviewing
25 their responses yesterday, we thought that was true.

26
1 This may or may not be true at this point in time
2 because suddenly we're being told they have a magic
3 system.
4 MS. KULPIT: And if I may respond, Your
5 Honor.
6 MR. REESE: Yes, and by the way, the
7 existence of that system, if Miss Kulpit wants to be
8 sworn and give testimony with respect to it, we'll be
9 only too happy to do that, but, you know, this is a
10 mystery to us, okay. We do not see how this could
11 happen without having had access to Board records. And
12 I would like to note that they have failed to deny,
13 both the objector and the Board, paragraphs forty-two,
14 forty-three, forty-four, forty-five, forty-six and
15 forty-eight of our verified petition. And they do not
16 even have a general objection, or excuse me, a general
17 denial here in their papers. They're basically
18 pointing to this, that and the other thing and saying
19 oh, no, I don't have -- there's no iota of proof that
20 shows that I have fifteen hundred signatures. There
21 doesn't have to be an iota of proof. The iota of proof
22 is that I filed twenty-one sixty-four. It's up to them
23 to demonstrate on what we wish to challenge here today
24 is the validity of their objections compounded by
25 someone, purportedly an objector who filed them, and

27
1 that's what we expect to get testimony on and evidence
2 from on witnesses, Your Honor.
3 THE COURT: All right. I'm going to let
4 Miss Kulpit and Mr. Toth respond.
5 MS. KULPIT: Judge, I'll be brief unless the
6 Court would like a lengthy response.
7 THE COURT: I don't penalize for brevity, you
8 know that.
9 MS. KULPIT: The thing that Mr. Reese just
10 put on the record is the problem with his petitions.
11 We thought. We assumed. You have to file an Order to
12 Show Cause with some credible reasonable evidence to be
13 heard in this Court. He said, well, we're just going
14 to make it up and then we're going to waste the Court's
15 time and effort and put on witnesses so that we can
16 follow any theory we would like. Again, I am under no
17 obligation to tell him how we did it. The objector --
18 and I just would draw the Court's attention to the
19 specificity of the objection argument. If you look at
20 our first Order to Show Cause and go to Exhibit C, page
21 one, he has twenty signatures. We only objected to
22 five. That is how slow and meticulous and scrupulous
23 we went through.
24 THE COURT: Mr. Toth, do you want to add
25 anything?
28
1 MR. TOTH: Our papers, unless you have any
2 other questions, Your Honor, we ask that the validation
3 proceeding be dismissed. I do want to say for the
4 record, and I failed to mention this, that also we
5 brought over the original documents of who signed out
6 the public computers at the Board of Elections. Again,
7 not knowing which ones may or may not apply, we brought
8 the entire -- the entire record. And I'd also like to
9 point out that both commissioners are here pursuant to
10 Your Honor's subpoena.
11 THE COURT: Mr. Reese, Mr. Ostrowski?
12 MR. OSTROWSKI: Judge, if I could just pick
13 up, because we've been tag-teaming this --
14 THE COURT: Yes.
15 MR. OSTROWSKI: -- all along. And
16 continuing, I just have to say, I'm co-counsel. I
17 don't know what the VAN system is. I don't even know
18 what that word means. Am I pronouncing it correctly,
19 the VAN system? I don't know what we're talking about
20 here. This is all new.
21 MR. TOTH: Just so the record's clear and
22 then Mr. Ostrowski, the VAN System is not a public
23 system. So I don't have any specific -- I mean, I kind
24 of know what it is, but it's not a public system.
25 THE COURT: Internal mechanism at the Board?

29
1 MS. KULPIT: It has nothing to do with the
2 Board, Judge.
3 THE COURT: It's an outside vendor?
4 MS. KULPIT: It's a private vendor that you
5 pay for.
6 THE COURT: Okay.
7 MR. OSTROWSKI: This is all -- this is all
8 unsworn testimony by counsel supplementing pleadings.
9 I just want to point that out.
10 So continuing the motion for summary judgment,
11 the -- the objections, and again, just to be super
12 clear with the Court, no case has ever defined specific
13 objections in the State of New York. And this, the
14 specific objections are used to object to candidacies
15 throughout the state, is done every year. We all know
16 this, you've had many election law cases and we have
17 too. This is a statewide system that has been going on
18 from time immemorial and no Court has ever defined what
19 a specific objection is. So to break that down, as I
20 understand our adversaries' position here, I think
21 they're saying that part of the definition of a
22 specific objection in the election law allows you to
23 make objections without looking at Board records. Now,
24 just as somebody who's been doing election law work
25 many years, before I even went to law school, I've

30
1 never heard of this. I think it's preposterous. I
2 think it's nuts as the general said in World War II. I
3 can't believe that they're asking the Court to say a
4 specific objection to a signature on a petition, and
5 you don't even have to look at the actual records, you
6 can use some sort of a computer list.
7 Now, furthermore, Your Honor, to break it down
8 further, I think that -- this is what I'm hearing our
9 adversaries asking the Court to say, that when somebody
10 files, and hundreds -- and we have it in the petition,
11 we'll get into more specifics if we have the
12 opportunity -- hundreds of multiple objections were
13 denied by the Board. And I think it's fair to say some
14 of them with minimal effort. So, what does that mean?
15 That I think every time you have a signature where
16 there was multiple objections where either the Board or
17 our -- or Mr. Reese's staff was able to fairly easily
18 say, well, this is a good objection; those are totally
19 frivolous objections. So I think what they're asking
20 the Court to say is that in filing multiple objections
21 to a signature and doing this for hundreds and hundreds
22 of signatures, that's okay. There's no consequence to
23 that. There's no cost to that. And, therefore -- as
24 Mr. Reese was chatting in the car this morning, as an
25 engineer he said something that was really interesting

31
1 to me; that he could do a random generation of
2 objections and just randomly file objections. And as I
3 understand counsel's position, counsel's asking the
4 Court to say that's okay. I think that's outrageous.
5 And this is what's -- this is one of the reasons why
6 New York State has a lack of competitive elections.
7 This is statewide and been doing it for decades.
8 So I just want to make -- so part of our point is,
9 it's not a specific objection. And if you look at the
10 record I think there's really no dispute about this, we
11 counted fourteen hundred and ninety-five net
12 objections, in other words, how many signatures are you
13 objecting to. Gross means total number of objections
14 and so on. The Board rejected six hundred and
15 sixty-three of these. So that's not -- that's not
16 specific when they're making hundreds of objections
17 which are easily through -- but it takes taxpayer
18 money, and as Mr. Reese said we're shifting the burden
19 of proof. Those aren't specific. It's not -- it's not
20 rocket science, Your Honor. You're familiar with
21 election law cases, I am, Mr. Reese is. It's not all
22 that hard to look at a signature and say this is valid
23 or it's not valid. Time consuming, yes.
24 Intellectually difficult, no. So if there's hundreds
25 of signatures where there's multiple objections, easily

32
1 from an intellectual mental process point of view, not
2 that hard. That's not specific, Your Honor, that's
3 general. General means Mr. Reese is running for county
4 executive.
5 So, again, we have the figures of -- I don't have
6 the -- our figure in the petition, fifty-three -- five
7 thousand, three hundred and ninety-eight, like, gross
8 objections, hundreds if not thousands, we don't have
9 the exact number of those that were rejected, but we
10 can supply that. And, again, the answers of both
11 counsel, I'm not familiar, I've been practicing law
12 for, I don't know, thirty-five years, maybe thirty six,
13 I don't understand their pleading. I've got -- what I
14 go on is old reliable CPLR 3018 that says that you
15 got -- basically says you got to deny specific
16 paragraphs and if you don't deny it it's admitted. So
17 this is really important what we've gone through,
18 Mr. Reese and I continuing, there's no denial of
19 paragraphs twenty-six and twenty-seven which I won't
20 bother to read them, the Court has them. They're
21 absolutely vital to our case, and there's no denial
22 and, therefore, the Court shouldn't waste any further
23 judicial resources and should grant summary judgment
24 because they're not denying our facts. The Court just
25 has to make a legal ruling. So I think that pretty

33
1 much completes our motions for summary judgment at this
2 point.
3 THE COURT: Okay.
4 MS. KULPIT: Judge, would you like a
5 response? Just with respect to that we didn't
6 specifically deny paragraphs, I draw the Court's
7 attention to subsection four, twenty-one through
8 twenty-three. If you say things four different ways,
9 we can use a single sentence to deny it. The
10 respondent-objector Lynn Dearmyer-Lee was never
11 improperly aided by the Board. It goes to every
12 assertion they're making, the same response. We have
13 sufficiently denied each and every objection.
14 THE COURT: Okay.
15 MR. OSTROWSKI: On that, that's not one of
16 the points that we said that they failed to deny, but I
17 think we did say they failed to deny the section
18 where -- in their original petition where they appear
19 to admit that they had access to Board records. And
20 now their position seems to be we don't have to have
21 access to any records, we can do anything we want. So
22 there is that contradiction there that I think the
23 Court has to grapple with in hearing two different
24 things from the same party in two different pleadings.
25 THE COURT: Next issue. Anything else?

34
1 MS. KULPIT: Judge, we would ask you to deny
2 the petitioner's petition and Index Number 71 as he has
3 failed to set any sufficient basis that would indicate
4 he has the valid number of signatures. And further has
5 indicated through argument here this morning, all of
6 the time and effort the Board of Elections spent in
7 reviewing each and every one of these signatures over
8 two days, providing him access to any information he
9 needed, we'd ask the Court to uphold the Board's
10 finding that Mr. Reese was insufficient with
11 signatures.
12 THE COURT: Any concluding remarks?
13 MR. OSTROWSKI: Judge, that just -- that's
14 our argument. I always enjoy when the other side makes
15 our argument. Our argument is that these frivolous
16 general objections, which are not within the
17 contemplation of the election law, it is done every
18 year and it's kind of a secret handshake thing that we
19 finally are trying to expose it here in the courts and
20 get a ruling. They've shifted the burden of proof.
21 There's no doubt that the taxpayers of Erie County
22 spent a lot of money and hired a lot of people and paid
23 their benefits so they could go over and go through
24 these sloppy general objections and actually get down
25 to a more realistic number of signatures. So they're

35
1 making our argument, Your Honor.
2 THE COURT: Okay. I'm going to write on this
3 and I'll get a decision to you quickly.
4 MS. KULPIT: Judge, and we are requesting if
5 the Court were to deny Mr. Reese's petition, that it
6 prohibits him from appearing on the ballot in the
7 primary on June 25th.
8 MR. REESE: Your Honor, we have a number of
9 witnesses today. How would you suggest we proceed with
10 that?
11 THE COURT: All right.
12 MR. OSTROWSKI: I just have a related
13 question, Your Honor. I don't know how the Court's
14 going to rule, but can we have an opportunity to make
15 an offer of proof if the Court is going to deny?
16 THE COURT: Yes, of course. Of course.
17 MR. OSTROWSKI: And at what point would that
18 be appropriate after the Court's --
19 THE COURT: As soon as you can.
20 MR. OSTROWSKI: Do you want us to do that
21 right now, Your Honor?
22 THE COURT: No.
23 MR. OSTROWSKI: Because I don't know what the
24 Court's going to do.
25 THE COURT: Well, I don't either yet. So I'm

36
1 going to give you the opportunity to put forth whatever
2 you think is relevant.
3 MR. OSTROWSKI: After the Court's decision?
4 THE COURT: If you want to do it now, go
5 ahead. I mean, it's up to you. If you -- you know,
6 before I make a final decision certainly I need to know
7 everything you want to say.
8 MR. OSTROWSKI: Would the Court suggest that
9 we do that with testimony, because I -- we were
10 prepared to put on testimony, but I just -- I don't
11 know what the Court's wishes are, or we could do an
12 oral offer of proof.
13 THE COURT: Seems to me an offer of proof
14 would make more sense, more efficient, but I'll leave
15 it to you.
16 MR. OSTROWSKI: Could we just have a moment
17 outside to consult?
18 THE COURT: Sure. Sure.
19 (Whereupon, a discussion off the
20 record was held)
21 THE COURT: With regard to the commissioners,
22 thank you for being here. I don't know whether you can
23 add anything to this. I appreciate you being here, but
24 if your role is simply as observers here, then I'll
25 leave it to the parties, but I have no objection if you

37
1 get back to work.
2 MR. TOTH: Your Honor, I mean, it's your
3 subpoena. They're here because of your subpoena so if
4 you're releasing them --
5 THE COURT: I know that.
6 MR. TOTH: Okay.
7 THE COURT: That's my point.
8 MR. TOTH: Okay.
9 THE COURT: I want to make sure that no one
10 has any extraneous issues that I might have to address
11 to you, but if not, I certainly would release you.
12 MR. TOTH: Okay.
13 THE COURT: We'll take a short recess.
14 (Whereupon, a brief recess was held)
15 MR. REESE: Your Honor?
17 MR. REESE: With respect to offer of proof, I
18 was able to speak to an expert on the phone who
19 informed me, this is a person who is familiar with the
20 VAN system, he's not available today obviously, that I
21 could bring him as an expert witness, and he indicates
22 to me that the VAN system does not have voter
23 signatures in it, which gets me back to paragraph
24 thirty, the six things that you can't object to based
25 on not seeing signatures. So this -- this private

38
1 system that this individual is familiar with does not
2 have those signatures. I've got voter lists on my
3 computer right here that won't enable me, it's just,
4 you know, digital -- this is this person, this is their
5 name, their address, their age, their date of birth,
6 when they voted.
7 THE COURT: Your main point is the entire
8 process is -- is not valid because they're wholesale
9 objections that are general objections that may or may
10 not have any validity, and the whole process should be
11 disallowed, therefore, your signatures should be
12 validated?
13 MR. REESE: Well, yes, Your Honor. We want
14 to throw out the objection as general and not specific
15 in any way under the law. But as an offer of proof, if
16 Your Honor's willing to adjourn, perhaps I can bring
17 this expert in, because now we're -- now -- I mean, the
18 VAN system, which Miss Kulpit has testified to here
19 today for the first time, never showed up in their
20 papers, suddenly is the source of all the information
21 they didn't get from the Board because they never got
22 it from the Board. That's what the record shows. And
23 if that magical system, the VAN system, doesn't contain
24 this information that they're supposed to have, my
25 guess is the VAN system's got the same thing that you
39
1 and I can get from the Board. And for us to get copies
2 of printed signatures, as far as I know you have to
3 FOIL them. That's twenty-five cents apiece. That's a
4 lot.
5 THE COURT: Mr. Toth brought information --
6 MR. TOTH: As I explained earlier and --
7 THE COURT: -- pursuant to the FOIL request.
8 MR. TOTH: -- Mr. Ostrowski has just reviewed
9 it quickly. This is every FOIL request that we
10 received over the last, I don't know, five or six
11 weeks. I suspect, though, you know, I can't say with
12 certainty, but I suspect that the answer that Mr. Reese
13 is asking for is one of these people probably FOIL-ed
14 some signature cards. And that's it. And, you know, I
15 don't know how to prove that and I don't know why it's
16 our burden --
17 THE COURT: I understand.
18 MR. TOTH: -- to prove that.
19 MR. REESE: Your Honor, that just -- that's
20 categorically not true. What we saw, we FOIL-ed the
21 FOIL logs and what was actually supposedly received.
22 There was seven dollars and seventy-five cents paid by
23 the Erie County Democratic Committee for signatures,
24 that would add up to thirty-one signatures, and my
25 guess is, and it's only a guess without having witness

40
1 testimony, that was the signatures of perhaps
2 thirty-one witnesses who appeared on my petition.
3 That's not enough to do line by lines on the voters.
4 And most of the analyses that we've done, and we've
5 come up with substantial tables, et cetera, are
6 numbers -- our number of fifty-three ninety-eight
7 objections actually made are to the line by lines, that
8 isn't even to the witness statements.
9 THE COURT: It's in the papers.
10 MR. REESE: There's no way in the world that
11 they FOIL-ed the signatures of twenty-one hundred and
12 sixty-four people. It just didn't happen. And that's
13 not available anywhere in the real world outside the
14 Board of Elections as far as we know. And it's
15 certainly not in the magical VAN system.
16 THE COURT: Miss Kulpit, do you want to
17 respond at all?
18 MS. KULPIT: Judge, this is a validation
19 proceeding. It should be limited to the hundred and
20 sixty-seven signatures. He's making -- everything
21 Mr. Reese is saying has absolutely no proof attached.
22 THE COURT: Are there a hundred and
23 sixty-seven valid signatures?
24 MR. REESE: I don't know at this time, Your
25 Honor, all right, but that is not our intention. It's

41
1 been very clear --
2 THE COURT: I know it's not your argument.
3 I'm just asking if you're prepared to tell me that you
4 have a hundred and sixty-seven valid signatures.
5 MR. REESE: No, I can't at this time tell you
6 that, Your Honor.
7 THE COURT: Okay.
8 MR. REESE: However -- well, if you're done,
9 Your Honor, one thing we do need to do is move a bunch
10 of things into evidence.
12 MR. REESE: We would like to move into
13 evidence all of the pleadings from the Index Number 60
14 as well as 71, my petition, the objection -- specific
15 objections from the Board, the Board worksheets, all of
16 the FOIL materials including the logs of who FOIL-ed
17 and what they received.
18 THE COURT: Any objection to any of that?
19 MR. TOTH: No, although it's always -- it's
20 always a little tricky to get the original stuff to the
21 Fourth Department, but I'm happy to do that. I don't
22 know --
23 THE COURT: I will personally guarantee it
24 will be safeguarded and returned forthwith.
25 MR. TOTH: Okay.

42
1 MS. KULPIT: No objection. Most of what
2 Mr. Reese has requested is clearly --
3 THE COURT: Okay.
4 MR. TOTH: I will say, Your Honor, I had
5 another matter earlier this week. Judge Bannister,
6 which is also probably going up on appeal, just
7 stipulated that those documents were in the record and
8 they are still in my possession. I don't know if one
9 process is right or wrong. That's just the way she did
10 it.
11 THE COURT: Well, let me have them and if I
12 find in a short period of time that I don't need them
13 anymore I will return them to your custody and if I
14 need them back I can always get them.
15 MR. TOTH: Okay.
16 MR. REESE: Your Honor, with respect to -- so
17 I -- are those admitted into evidence?
18 THE COURT: Yes.
19 MR. REESE: With respect to our offer of
20 proof, I would like to put on the record that we are
21 prepared to put Mr. Ricchiazzi on the stand. He has
22 worked with us in examining these petitions and we went
23 over yesterday and went through a number in the first
24 twenty pages as an example of what we believe were
25 clearly frivolous objections, multiple -- multiple --

43
1 THE COURT: Can't I determine that?
2 MR. REESE: Hm?
3 THE COURT: Can't I determine that? It's in
4 your papers.
5 MR. REESE: Well, we just -- we just want to
6 offer this as an example.
7 THE COURT: Can you just give me an offer of
8 proof?
9 MR. REESE: No, I can't do it without Board
10 records. In fact, the Court probably needs to go to
11 the work stations to see what one can see and how easy
12 it can be done. All right. What I'm saying, Your
13 Honor, as part of my offer of proof would be a visit to
14 the Board to work on the work stations and show you --
15 THE COURT: I'm not going to the Board.
16 MR. REESE: -- how easy it is to find these.
17 THE COURT: I'm not going to the Board.
18 MR. REESE: Well, that is part of my offer of
19 proof, Your Honor. In addition to that, Mr. Ricchiazzi
20 and I worked on a database whereby we essentially for
21 every page and line worked out the number of
22 objections. This is what we've gotten our totals from.
23 We've got a five-page document here that details this.
24 This is only the line by lines. This is a scattershot.
25 This is something we would have offered into evidence

44
1 if -- or could offer into evidence if the Court wants
2 us to do this, and this is the document that I
3 described to Mr. Ostrowski as something that I could
4 generate at random and next year we can file an
5 objection to someone's petition with a random number
6 generator saying how many objections we're going to
7 have to what line and page of a petition. And I could
8 generate a thousand different --
9 THE COURT: How is that possibly relevant to
10 what we're talking about?
11 MR. REESE: Well, Your Honor, what I'm saying
12 is that effectively what we have is something that
13 could have been generated by a machine just throwing
14 darts at a board.
15 THE COURT: I get that argument. I'll decide
16 whether it's valid or not. I don't see why you need
17 testimony.
18 MR. REESE: Well, I think it would be
19 instructive for the Court to see what the process is
20 and the difference between what is available to Board
21 personnel in terms of seeing the full voter card as
22 opposed to us just seeing the signature card.
23 THE COURT: Did you see the full card at the
24 proceeding with the Board?
25 MR. REESE: When we -- when it was

45
1 appropriate we were allowed to see them.
2 THE COURT: Okay.
3 MR. REESE: However, the people who
4 propounded the objections could not have unless they
5 were working on the Board side of the aisle. That's
6 our point.
7 THE COURT: Do you want to --
8 MS. KULPIT: Judge, we don't believe
9 testimony is necessary. We'd object to the document as
10 just stated on the record by Mr. Reese.
11 THE COURT: Right. I don't think testimony
12 is necessary. Do you have any other submissions, you
13 can do that, otherwise I'll look at this and issue a
14 decision.
15 MR. TOTH: Thank you, Your Honor.
16 MR. REESE: Thank you, Your Honor.
17 MS. KULPIT: Judge, just as a last point, we
18 would ask, there's several people subpoenaed here
19 today. There's subpoenas that we served and then we
20 properly also served to the other side, indicate that
21 if the Court were to reconvene these people would still
22 be under the same subpoena and we'd ask that you allow
23 that.
24 THE COURT: Those are continuing.
25 MS. KULPIT: Thank you.

46
1 MR. OSTROWSKI: With respect to our
2 witnesses, too, Your Honor?
3 THE COURT: Yes.
4 MR. OSTROWSKI: I think of which was only
5 three.
6 THE COURT: Yes.
7 MS. KULPIT: Judge, and I would object,
8 because under CPLR 2 --
9 THE COURT: Look. Look. All the subpoenas
10 are in force. If we're going to do it for you, I'm
11 going to do it for you, and I don't see it happening
12 anyway.
13 MS. KULPIT: We would just ask if they serve
14 subpoenas, under the CPLR it requires the other party
15 to know and that has yet to be done in this case.
16 THE COURT: Well, if they are reactivated I
17 would --
18 MR. REESE: We'll give you copies of
19 subpoenas.
20 THE COURT: All right. Make sure you give
21 notice if for some reason they're reactivated.
22 MS. KULPIT: Thank you, Judge.
23 MR. TOTH: Thank you, Your Honor.
24 THE COURT: Okay.
25
47
1 (Whereupon, records were marked as Court's Exhibit
2 1 for identification and received in evidence.)
4 * * * * *
5 I hereby certify that the foregoing 47 pages are a true
6 and accurate transcription of the stenographic notes taken
7 by me in the above captioned matters on May 2, 2019, held
8 before the HONORABLE CHRISTOPHER J. BURNS.
9 _______________________
10 KIM M. BUCK
OFFICIAL COURT REPORTER
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Reese v. Erie County Board of Elections Oral Argument

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Reese v. Erie County Board of Elections Oral Argument

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STATE OF NEW YORK COUNTY OF ERIE

SUPREME COURT PART 19

In the Matter of the Application of

ERIE COUNTY BOARD OF ELECTIONS

Matter of PETER A. REESE

ORDER TO SHOW CAUSE

ERIE COUNTY BOARD OF ELECTIONS

LYNN M. DEARMYER-LEE, Objector

APPEARANCES: JESSICA KULPIT, ESQ.

PETER A. REESE, ESQ., Pro Se

MICHAEL A. SIRAGUSA, ESQ.

OTSC - Dearmyer-Lee - Reese - Board of Elections

1 THE COURT: Miss Kulpit.

2 MS. KULPIT: Good morning, Your Honor.

3 Jessica Kulpit on behalf of Miss Dearmyer-Lee. We are

4 here today on an election law civil proceeding that

5 commenced with the assignment of Your Honor on Order to

6 Show Cause Index Number 2019-60. Lynn Dearmyer-Lee

7 versus Peter Reese and Erie County Board of Elections.

8 I, along with Miss Brittany Penberthy, represent

9 Miss Dearmyer-Lee. Subsequent to the filing of the

10 Order to Show Cause, because we had not yet had a Board

11 ruling, Mr. Reese did file a Order to Show Cause

12 2019-71 thereby making him a petitioner and the Erie

13 County Board of Elections and Miss Dearmyer-Lee the

14 respondents. All responses have been filed, and if the

15 Court would like me to continue, I certainly can.

16 THE COURT: All right. Are there -- are

17 there parts of this that can be dealt with in a shorter

18 manner than others, specifically Mr. Toth's, or are

20 MS. KULPIT: I have a suggestion, Judge.

21 THE COURT: -- are you confident in the order

23 MS. KULPIT: Judge, we would leave it to the

24 sound discretion of how the Court would like to proceed

25 in this matter. Because at the time we filed our Order

OTSC - Dearmyer-Lee - Reese - Board of Elections

1 to Show Cause Index Number 60 we didn't have the

3 THE COURT: Okay.

4 MS. KULPIT: I believe it would make the most

5 sense, and to be economical of the Court's time and

6 resources, if we handled Mr. Reese's petition or Order

7 to Show Cause first --

8 THE COURT: Okay.

9 MS. KULPIT: -- as the Board found him

10 delinquent with respect to signatures.

11 THE COURT: That's fine.

12 MR. REESE: Your Honor, with respect to that,

13 we're not really sure, we believe that the first

14 petition filed is now moot in view of the fact that the

15 Board invalidated the petition. It was filed as an

16 anticipatory in order for them to mark time on the

17 clock with a fourteen-day statute of limitations and we

18 believe that issue is now moot. It was filed on the

19 contingency that the Board would validate, the Board

20 did not. So I don't know that that matter is even

21 before the Court at this point in time or that it

23 THE COURT: What say you, is there any relief

24 that's available with regard to that issue?

25 MS. KULPIT: As that matter was still pending

OTSC - Dearmyer-Lee - Reese - Board of Elections

1 and we consented to the adjournment because Mr. Reese

2 indicated he would be filing a validation, I do not

3 believe it's a moot issue. If the Court were to hear

4 Mr. Reese's petition, and we certainly have reasons we