West Seneca Democrat Asks Lenihan to Let Rank and File Choose Assembly Candidate
by Geoff Kelly - posted 5:44 pm, January 14, 2012
The special election to fill the vacant 145th District Assembly seat has been set for March 20, and because there is no primary, each political party’s leadership can choose a candidate to put on the ballot.
Lately, the Erie County Democratic Party’s executive committee has selected candidates in situations like this, though in the past those choices have been made by the party’s committee men and women within the relevant district, as provided in the party’s bylaws.
It has been expected that the executive committee would choose the Democratic candidate for the 145th District seat, too. Indeed, the executive committee is scheduled to meet on Tuesday, January 17, at party headquarters in the Ellicott Square Building, and the main agenda item is the 145th District vacancy. The two leading candidates are South District Councilman Mickey Kearns and Chris Fahey, an aide to Congressman Brian Higgins, with former Lackawanna mayor Norm Polanski and former Erie County Legislator Tina Bove the dark horses.
But now a West Seneca Democratic Party committee man, Robert D. Krautsack, has gone to the courts to demand that the party’s county chairman, Len Lenihan, call a meeting of the 145th District’s committee people, so that they, rather than the executive committee , can choose a candidate for the special election.
Here’s the show cause order and petition, which will be argued in NYS Supreme Court Justice Tracey Bannister’s court on Tuesday morning. Representing Krautsack is Democratic Party activist Peter A. Reese. In a nutshell, Reese’s argument is that the party’s laws empower the district committee members, not the executive committee, to select Assembly candidates.
What follows is a series of emails Reese sent on Saturday morning to the election law attorney and libertarian activist Jim Ostrowski, copying a handful of Democratic Party insiders:
One of the problems I have with the oral argument of this case which is scheduled to be heard Tuesday, January 17, 2012 at 9:00 AM in front of Judge Bannister (Show Cause Order w/Petition attached) is that it will force me to publicly air a strategy which could be very harmful to the Democratic Party. For instance, let’s say that a more experienced candidate other than party choice Chris Fahey, such as Mickey Kearns or Tina Bove were to overhear me say that an alternate strategy would be to have one or both of them seek the Republican or other minor party nomination in the 145th AD and/or circulate petitions for an independent ballot line. Even if we lose Krautsack v. Lenihan, they could then get another lawyer to bring a separate action challenging the Fahey nomination and voiding the Democratic line. If they were to team up with the powerful West Seneca and/or Cheektowaga Democratic Committees or even Mayor Brown’s team, it would be a simple matter to obtain the 1500 valid signatures necessary to qualify for an independent ballot line by the January 23, 2012, filing deadline. As I remember, you were intimately involved with successfully establishing the DiPietro Tea Party Senate independent line in the SS-59 election in 2010. Wasn’t that case reported at: http://law.justia.com/cases/new-york/other-courts/2010/2010-20435.html ? Weren’t you also involved in Jack Davis’ independent nomination in the recent congressional race. I seem to recall that New York lawyer character, Henry Berger, Esq. also had something to do with the Davis race. Wait a minute, now I remember. I was involved too and I incorporated his campaign finance committee.
I don’t think another candidate would be collaterally estopped from bringing an action against the Democratic nominee, even if Judge Bannister should err and rule against us. It is truly sad that, as Mr. Krautsack states in his Petition, Chairman Lenihan’s “flaunting of his own party rules violates the rights of the petitioner and threatens to leave the Democratic line vacant in a heavily Democratic district that has not elected a Republican in living memory.”
What do you think, Jim, can I leave this out of oral argument without failing in my ethical responsibility to zealously represent my client? I see no way around it.
On second thought, since the issue has already been raised in a publicly filed document, I guess the harm is already done. Never mind.
Just one more thing. Is it true that this matter is being brought pursuant to Election Law Section 6-114 (attached) which essentially elevates the party rules to the level of a statute, overriding all of the other statutory provisions dealing with party nominations? Can you think of any instance, other than a special election, where the party rules could come into play regarding the nomination of a candidate? Isn’t it in fact true that the party never really gets to even designate anyone as a candidate, that being done by way of the petitioning process with nominations conferred by the party voters in primary elections? Isn’t it also true that the party endorsements, normally granted by district committeemen, are merely recommendations which carry no legal force whatsoever? I even seem to recall that the party itself is prohibited from directly expending resources on behalf of endorsed candidates in party primary elections. Maybe this is it?
“§ 2–126. Party funds; restrictions on expenditures No contributions of money, or the equivalent thereof, made, directly or indirectly, to any party, or to any party committee or to any person representing or acting on behalf of a party or party committee, or any moneys in the treasury of any party, or party committee, shall be expended in aid of the designation or nomination of any person to be voted for at a primary election either as a candidate for nomination for public office, or for any party position. (L.1976, c. 233, § 1. Amended L.1978, c. 373, § 18.)”
Just one last thing, can you think of any reason why Democratic Party Secretary Dennis Ward would rebuke Judge Bannister’s attempts to bring this matter on expeditiously yesterday, rather than delaying the matter until Tuesday morning. As you will recall, should the Judge decide in our favor that would leave only approximately 62 hours to convene 400 plus committeemen, nominate the candidate, have the candidate accept the nomination and mail the results to the Board of Elections. Remember that we informed the Judge that under the normal 96 hour mailed notice of such meetings should have gone out on Sunday (tomorrow). Wasn’t it strange that Mr. Ward acted in such an abusive, uncooperative and unprofessional manner to a sitting Supreme Court Judge? I also found it surprising that later yesterday at approximately 12:07 PM, Mr. Ward refused personal service of Judge Bannister’s Show Cause Order at the Board of Elections, even though he was in his office. Instead, Ward sent out errand boy Darien Pratchett, Chairman of the Zone Chairman’s Association of the City of Buffalo, and Board of Elections public employee to accept the papers. Wasn’t it funny how frightened and confused Mr. Pratchett became when I informed him that the Order did not involve Board of Elections business? I thought I observed a little trail of pee running down his leg.
Just on last, final thing. I have reviewed the attached campaign promises made by Chairman Lenihan when he ran for County Chairman in 2002. As you will recall, that was the year he banished the Evil Black Prince, G. Steven Pigeon, from the Chairmanship. Do you believe that his present actions, as complained of by Petitioner Krautsack, are consistent with his 2002 promise to “Operate at all times in strict accordance with the Election Law and our Party rules” (page 9)?
A cautionary note: I think we should do our best to keep all our e-mails under wraps. If any of this gets out, it could wreck Tonawanda City Chairperson Gayle Syposs’ efforts to keep Leonard Lenihan as County Chairman. See the attached documents. I am somewhat surprised that I was not asked to sign that document, as I have always been one of Leonard’s staunchest supporters.