Van Allen vs. NYS Board Of Elections dismissed

Posted by By GeorgeM at 12 July, at 20 : 28 PM Print

At least the state failed in its bid to impose sanctions.

Attorney/Firm For Plaintiff:
H. William Van Allen SRL	Attorney Type: Pro se	Atty. Status: Active



Attorney/Firm For Defendant:
NYS Board Of Elections	Attorney Type: Attorney Of Record	Atty. Status: Active
40 Steuben Street Albany, NY 12207
(518)474-8100

Hon. Eric T. Schneiderman AG	Attorney Type: Attorney Of Record	Atty. Status: Active
The Capitol-Dept Of Law Albany, NY 12224
(518)474-4441

Douglas J. Goglia AAG	Attorney Type: Attorney Of Record	Atty. Status: Active
The Capitol-Dept Of Law Albany, NY 12224
(518)474-6800

WebCivil Supreme – Appearance Detail

Court:	Albany Civil Supreme
Index Number:	001787/2012
Case Name:	Van Allen vs. NYS Board Of Elections
Case Type:	Spec Proceed-Election
Track:	Standard

Appearance Information:

Appearance Date	Time	On For	Appearance Outcome	Justice / Part	Comments	Motion Seq
07/10/2012		Motion	Motion Decided	RICHARD M. PLATKIN PLATKIN (Motion Part)		002
07/10/2012		Motion	Motion Decided	RICHARD M. PLATKIN PLATKIN (Motion Part)		001
07/10/2012		Disposed	Pre-Dismissed	RICHARD M. PLATKIN PLATKIN (Court Activity)
06/29/2012		Motion	Return/Submit	RICHARD M. PLATKIN PLATKIN (Motion Part)		002
06/29/2012		Motion	Return/Submit	RICHARD M. PLATKIN PLATKIN (Motion Part)		001
06/20/2012		Motion	Motion Filed	RICHARD M. PLATKIN PLATKIN (Motion Part)		002
05/30/2012		Motion	Motion Filed	RICHARD M. PLATKIN PLATKIN (Motion Part)		001

WebCivil Supreme – Motion Detail

Court:		Albany Civil Supreme
Index Number:		001787/2012
Case Name:		Van Allen vs. NYS Board Of Elections
Case Type:		Spec Proceed-Election
Track:		Standard

Motion Information:

Motion Number	Date Filed	Filed By	Relief Sought	Submit Date	Answer Demanded	Status	Decision	Order Signed Date
002		DEF	Dimsiss Petition,Award Costs &	06/29/2012	No	Decided: 10-JUL-12 Granted Before Justice: PLATKIN
001		PLAINT	Writ Of Mandamus W/Tro & Injun	06/29/2012	No	Decided: 10-JUL-12 Denied Before Justice: PLATKIN

STATE OF NEW YORK
SUPREME COURT
ALBANY COUNTY
H. William Van Allen in esse,
Petitioner,
-against-
NEW YORK STATE BOARD OF ELECTIONS,
Respondent.
Decision, Order
& Judgment
Index No. 1787-12
APPEARANCES:
H. WILLIAM VAN ALLEN
Self- Represented Petitioner
351 North Road
Hurley, New York 12443
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL
Attorney for Respondent
(Douglas 1. Goglia, of counsel)
The Capitol
Albany, New York 12224
Hon. Richard M. Platkin, A.J.S.C.
This is a special proceeding brought by petitioner H. William VanAllen pursuant to
CPLR article 78 seeking a writ of mandamus, emergency injunctive relief and declaratory relief.
Respondent New York State Board of Elections (“SBOE”) moves to dismiss the petition and also
seeks the imposition of monetary and non-monetary sanctions upon petitioner.
The United States Constitution provides that “[n]o person except a natural born Citizen
… shall be eligible to the Office of President” (US Const, art II, § 1, clause 5 ["Natural Born
Citizen Clause"]). Petitioner alleges that eligibility instructions on the SBOE internet web site
erroneously advise that a candidate for the Office of President need only be “born a citizen” of
the United States, rather than a “natural born Citizen”, as required by the text of the Constitution.
In particular, petitioner objects to the “ballot access of [President] Obama as it is wrongfully
facilitated by the [SBOE's] arbitrary use of the instruction ‘Born a Citizen”‘. Among other
things, petitioner seeks an order: (a) enjoining the SBOE from using the term “Born a Citizen”
with respect to the eligibility of presidential candidates; and (b) requiring each presidential
candidate on the 2012 general election ballot to establish that he or she is a “Natural Born
Citizen” of the United States in order to remain on the ballot.
The standing of a party to institute or maintain a judicial proceeding is a threshold issue
that must be determined by the Court at the outset of litigation (see Matter of Dairylea Coop. v
Walkley, 38 NY2d 6 [1975]). To establish standing to challenge an administrative action in a
proceeding brought pursuant to CPLR article 78, petitioner must show that he would suffer an
injury in fact “that is in some way different from that of the public at large” (Society of Plastics
Indus. v County afSuffolk (77 NY2d 761, 773-774 [1991]). In other words, petitioner must show
that he actually will suffer a concrete and particularized harm as a result of the challenged action
2
(id.; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Matter of
Hassig v New York State Dept. of Health, 5 AD3d 846 [3d Dept 2004]).
In opposing respondent’s motion to dismiss, petitioner maintains that he brings this
proceeding “to protect[] his personal intangible vote property in this 2012 election cycle”
‘(Petitioner’s Response in Opposition, ~ 23). However, the allegedly faulty instruction given by
the SBOE regarding the Natural Born Citizen Clause in no way denies petitioner his right to vote
in the 2012 general election. Petitioner, who is not an enrolled member of the Democratic party,
remains free to support and vote for a candidate of his choosing (see Berg v Obama, 586 F3d
234,239-240 [3d Cir 2009]; Hollander v Me/lain, 566 F Supp2d 63,69-70 [D NH 2008]; see
also Crist v Comm ‘n on Presidential Debates, 262 F3d 193, 195 [2d Cir 2001]). And it is clear
that petitioner’s interest in compelling the SBOE to adopt his interpretation of the Natural Born
Citizen Clause and to use his preferred terminology in its publications is in no “way different
from that of the public at large” (Society of Plastics, 77 NY2d at 773-774). As such, petitioner’s
interest is far too generalized and unparticularized to support standing under the facts and
circumstances of this case (see Berg at 240 [collecting authorities]).
In view of petitioner’s lack of standing to maintain the instant proceeding, there is no
reason to consider respondent’s additional contentions that this proceeding is barred by principles
of res judicata and collateral estoppel based upon prior litigation undertaken by Christopher-Earl
Strunk, an alleged privy of petitioner, and that the petition is non-justiciable insofar as the
Electoral College is the sole and exclusive forum in which objections to the selection of a
President may be determined.
3
Finally, the branch of respondent’s motion seeking the imposition of monetary and nonmonetary
sanctions is denied. While respondent’s counsel refers to “repetitive” and “numerous
vexatious and harassing lawsuits” commenced by petitioner, nothing in the record confirms this
assertion. And the mere fact that a trial court of coordinate jurisdiction rejected similar claims
advanced by an alleged privy of petitioner does not render the instant petition frivolous within
the meaning of Part 130 of the Rules of the Chief Administrative Judge.
Accordingly, it is
ORDERED that the branch of respondent’s motion seeking dismissal of the petition is
granted; and it is further
ORDERED and ADJUDGED that the petition is dismissed in all respects; and finally it is
ORDERED that the branch of respondent’s motion seeking the imposition of monetary and
non-monetary sanctions is denied.
This Decision, Order & Judgment is being transmitted to the counsel for respondent and all
other papers are being transmitted to the Albany County Clerk for filing. The signing of this
Decision, Order & Judgment shall not constitute entry or filing under CPLR § 2220. Counsel are
not relieved from the applicable provisions of that section respecting filing, entry and notice of
entry.
Dated: Albany, New York
July 9, 2012
~
RlCHARD M. PLATKIN
A.J.S.C.
4
Papers Considered:
Notice of Petition, dated May 30, 2012;
Verified Petition, sworn to May 30,2012, with attached exhibits A-H;
Notice of Motion, dated June 18,2012;
Respondent’s Memorandum of Law, dated June 18,2012;
Petitioner’s Response, sworn to June 27, 2012, with attached exhibits A-G;
Affirmation of Douglas J. Goglia, Esq., dated June 28,2012, with attached exhibits A-B.