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UNASSIGNED
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MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt #

Book Page

Return To: No. Pages: 23

CATHLEEN A. KOSHYKAR
42 Hilltop Drive Instrument: MISCELLANEOUS DOCUMENT
Pittsford, NY 14534
Control #: Unrecorded #8080388
Index #: Unassigned-1440590

Date:

Coffee, Nicholas Time:

Iannone, Kathleen
Plonczynski-Figueroa, Anthony J.
Slade, Michael L.
Garretson, David L.

Barnhart, Rachel
Bauroth, Joshua
Baynes, John
Felder, Vincent
Flagler-Mitchell, Ernest

Total Fees Paid: $0.00

Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE

WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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STATE OF NEW YORK

SUPREME COURT COUNTY OF MONROE

Members of the Executive Committee of the Monroe County

Democratic Committee Nicholas Coffee, Kathleen Iannone,
Anthony J. Plonczynski-Figueroa, and Michael L. Slade;
Member of the Monroe County Democratic Committee David L.
Garretson;
And Candidate for the position of Monroe County Board of
Elections Democratic Commissioner Saul A. Maneiro,
ORDER TO SHOW
Petitioners, CAUSE FOR
- vs - PRELIMINARY
INJUNCTION WITH
Monroe County Democratic Legislators Rachel Barnhart, Joshua TEMPORARY
Bauroth, John Baynes, Vincent Felder, Ernest Flagler-Mitchell, RESTRAINING ORDER
Linda Hasman, Frank Keophetlasy, Sabrina LaMar, Calvin Lee,
Howard Maffucci, Joseph Morelle, Jr., Justin Wilcox, Yversha Index No. _________
Roman, and Michael Yudelson;
Brittaney Wells, Chairperson of the Monroe County Democratic
Committee;
Nate Van Loon, Counsel to the Monroe County Democratic
Committee;
and the Monroe County Democratic Committee,

Respondents.

Upon the annexed Affirmation of Cathleen A. Koshykar, affirmed on May 18, 2020,

together with the exhibits annexed thereto; the Affidavit of Nicholas Coffee, sworn to on May

18, 2020; the Affidavit of Kathleen Iannone, sworn to on May 18, 2020; the Affidavit of

Anthony J. Plonczynski-Figueroa, sworn to May 18, 2020; the Affidavit of Michael L. Slade,

sworn to on May 18, 2020; the Affidavit of David L. Garretson, sworn to on May 18, 2020; the

Affidavit of Saul A. Maneiro, sworn to on May 18, 2020; and the Affidavit of Kendra Evans,

sworn to on May 18, 2020; and all other pleadings and proceedings heretofore had herein, and

sufficient cause being shown, it is hereby:

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ORDERED that Respondents show cause at a hearing before this Court to be held at

__:00 a.m./p.m. on ______________ __, 2020, Hall of Justice, 99 Exchange Boulevard,

Rochester, NY 14614, or as soon thereafter as counsel can be heard, why an order should not be

granted pursuant to CPLR Articles 63 and 78:

1. Temporarily, preliminarily, and/or permanently enjoining and restraining

Respondents and Respondents’ officers, directors, attorneys, agents, employees,
servants, affiliates, partners or entities that are controlled by or acting on such
Respondents’ behalf from directly or indirectly engaging in any acts or actions
aimed at interviewing or appointing any candidate(s) for the office of Monroe
County Democratic Commissioner of Elections.

2. Awarding Petitioners such other and further relief as this Court deems just and
proper; and it is hereby

ORDERED that service of a copy of this Order to Show Cause and supporting papers

shall be made upon Respondent Democratic Monroe County Legislature Members either by

delivery to County Attorney John Bringewatt, at the Monroe County Office Building, 39 W.

Main Street, Rochester, NY 14614, via electronic mail or hand-delivery, or by delivery to any

Respondent Democratic Monroe County Legislator, via electronic mail or hand-delivery, on or

before May __, 2020, and such service shall be deemed good and sufficient service of this Order

to Show Cause and the papers upon which the same is granted; and it is further

ORDERED that service of a copy of this Order to Show Cause and supporting papers

shall be made upon Respondent Monroe County Democratic Committee, Chairperson Brittaney

Wells and Respondent Monroe County Democratic Committee Counsel, Nathan Van Loon,

either by electronic delivery to Ms. Wells or Mr. Van Loon, or hand-delivery to Monroe County

Democratic Committee Offices located at 1150 University Ave., Rochester, NY 14607, on or

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before May __, 2020, and such service shall be deemed good and sufficient service; and it is

further

ORDERED, that Respondents shall file and serve any answering or opposition papers, if

any, on or before _________ __, 2020, by filing and service via NYSCEF; and it is further

ORDERED, that Plaintiffs shall file and serve any reply papers via NYSCEF, in further

support of their application on or before _________ __, 2020.

Dated: May __, 2020

______________________________
Hon.

ENTER:

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STATE OF NEW YORK

SUPREME COURT COUNTY OF MONROE

Members of the Executive Committee of the Monroe County

Democratic Committee Nicholas Coffee, Kathleen Iannone,
Anthony J. Plonczynski-Figueroa, and Michael L. Slade;
Member of the Monroe County Democratic Committee David L.
Garretson;
And Candidate for the position of Monroe County Board of
Elections Democratic Commissioner Saul A. Maneiro,

Petitioners,
- vs -
AFFIRMATION
Monroe County Democratic Legislators Rachel Barnhart, Joshua
Index No. _________
Bauroth, John Baynes, Vincent Felder, Ernest Flagler-Mitchell,
Linda Hasman, Frank Keophetlasy, Sabrina LaMar, Calvin Lee,
Howard Maffucci, Joseph Morelle, Jr., Justin Wilcox, Yversha
Roman, and Michael Yudelson;
Brittaney Wells, Chairperson of the Monroe County Democratic
Committee;
Nate Van Loon, Counsel to the Monroe County Democratic
Committee;
and the Monroe County Democratic Committee,

Respondents.

Cathleen A. Koshykar, Esq., an attorney admitted to practice in the State of New York, affirms
under penalty of perjury that this Affirmation, prepared by counsel on behalf of Petitioners, seeks
an order to show cause why the procedures of the Democratic Caucus of the Monroe County
Legislature should not be stayed, and why the leadership of the Monroe County Democratic
Committee should not be compelled to comply with the legal procedures relating to the election,
certification, and appointment of the Monroe County Democratic Commissioner to the Board of
Elections.

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FACTUAL ALLEGATIONS
1. A description of the parties to this action is set forth in the section titled “Parties,”
below.

THE ANNOUNCEMENT OF A VACANCY

2. On February 19, 2020 Colleen Anderson, the Monroe County Democratic

Commissioner to the Board of Elections, announced her resignation, effective March 4, 2020.

INITIAL PROCEDURES BASED ON IMPROPER GUIDANCE AND ADVICE FROM

MCDC CHAIR AND COUNSEL

3. One day later, on February 20, 2020, Monroe County Democratic Committee
(“MCDC”) Chairperson Brittaney Wells (“Chair Wells”) and MCDC Counsel Nate Van Loon
(“Van Loon”) advised the MCDC Executive Committee (“EC”) that they had formulated a plan
to replace the Commissioner by having the EC vote on the recommendation for the
Commissioner. Van Loon did not advise the EC that this plan was not consistent with New York
State Law Section 3-204. Van Loon claimed he had spoken with the state Board of Elections
and that they agreed this plan was acceptable. The members of the EC are not attorneys and
relied upon his legal counsel, believing this was the manner in which MCDC could lawfully
proceed. Based on the advice of Van Loon acting as legal counsel to MCDC, the EC voted to
commence a search committee, with a plan to vote on a recommendation to the Democratic
Caucus of the Monroe County Legislature on March 7, 2020.
4. Members of the community and MCDC objected to this process. Chair Wells
then claimed that Van Loon had sought advice from the New York State Democratic Committee
(“NYSDC”). Jay Jacobs, Chair of the NYSDC, indicated in an email that the process sought by
Chair Wells would be acceptable, without citing law or precedent in support of his conclusion.
Outgoing Commissioner Colleen Anderson also sought advice as to whether the proposed
process would be legal. In an email, also dated February 24, 2020, Brian Quail of the New York
State Board of Elections stated that an executive committee cannot make a recommendation
unless the full county committee has delegated such authority to the executive committee. This
has not happened in Monroe County. He further stated that any action inconsistent with the law

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would be “subject to judicial interpretation for sufficiency.” (A copy of the email addressing that
matter is attached as Petitioner’s Exhibit A.)
5. On March 4, 2020 Colleen Anderson’s resignation became effective, and LaShana
Boose, who had been Deputy to Ms. Anderson, became Acting Commissioner. Based on the
effective date of Ms. Anderson’s resignation, the first date upon which an election could have
been held under New York Election Law was March 5, 2020.

EFFORTS BY MEMBERS OF THE EXECUTIVE COMMITTEE TO COMPLY WITH

ELECTION LAW WERE THWARTED

6. On March 7, 2020, the EC met to discuss the process to be used to select a

Democratic Commissioner. A number of members expressed concern about moving forward
with the EC selection process proposed by Chair Wells and Van Loon based on the advice of the
New York State Board of Elections. At that meeting the following motion was passed by the
EC:
We affirm the process of filling the partial term vacancy in the Monroe County
Democratic Election Commissioner, since by default we follow NYS Election Law
section 3-204 #4 and #5, via a full Monroe County Democratic Committee meeting to be
held sometime between April 1 and April 6, 2020. As per the Election Law 3-204 #2 the
winner will be by a sufficient number of ballots to achieve a majority vote, given a
quorum present of individuals and proxies.

7. The election mandated by law would involve the participation of the entire
Monroe County Democratic Committee, a group numbering over 1700 people.

THE PANDEMIC CAUSES A SHUTDOWN

8. As March advanced, the COVID-19 pandemic began to affect institutions and

individuals throughout New York. Although there had been efforts to reach Chair Wells to
address the necessity of somehow moving forward with an election, Chair Wells refused to
respond to EC members and others reaching out to her.
9. On March 18, 2020 Chair Wells sent an email to EC members announcing MCDC
would close, with plans to reopen on March 30.

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10. Between March 24, 2020 and April 22, 2020, Chair Wells did not hold any EC
meetings, in person or remotely. She made no announcements and engaged in no efforts to act in
furtherance of her obligations with respect to the Commissioner vacancy.
11. On March 20, 2020, Governor Cuomo announced the New York State “PAUSE.”
12. On March 22, 2020, all large gatherings were banned by Governor Cuomo in
Executive Order 202.8.
13. On March 24, 2020 Chair Wells informally communicated by email with EC
members, ostensibly updating members on the status of MCDC events. This update included a
reference to the Commissioner process, stating, "the likelihood of holding a meeting of our size
is slim and it's truly important to put the safety of our staff, boe staff and committee members
first. Alternative methods are not provided in our bylaws so at this time we will have to wait.”
Upon information and belief, she did not reach out to the New York State Board of Elections, the
Governor’s Office, or any other individual or organization for guidance as to how to proceed.
14. On April 17, 2020 Saul A. Maneiro sent an email to Chair Wells to inquire about
the status of the selection/election process. Chair Wells responded in an email dated April 17,
2020:
I hope all is well. So the executive committee voted to have a convention to select the
BOE Commissioner which would have likely happened had it not been for Covid-19.
Currently the Governor has an executive order prohibiting political caucus
meetings, so we will not be able to move forward until things have gone back to
normal (Emphasis added). We were also supposed to have our state caucus meeting this
month and it was canceled until further notice.
I apologize for the inconvenience this has caused and thank you for your patience.

15. On April 23, 2020, Kendra Evans, Leader of the Pittsford Democratic Committee
and member of the EC, sent an email to the EC, which included Chair Wells, advising them that
she had received questions at the Pittsford Democratic Committee meeting, and asking leaders
for an update. She scheduled an informal meeting of leaders via Zoom.

DESPITE THE “PAUSE,” MCDC LEADERSHIP AND THE LEGISLATURE CLAIM

THE TIME FOR AN ELECTION HAS PASSED

16. Despite her absence, her failure to hold any EC meetings, and her lack of any
effort to either confirm that the time in which to hold the election had been tolled, or any effort to

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move forward with an election if it had not, Chair Wells was apparently counting the forty-five
days before the Committee would be divested of its authority to act under normal circumstances.
On April 23, 2020, approximately forty-nine (49) days after the creation of the vacancy, without
notifying the EC or requesting input from the EC, and without regard to the law, Chair Wells
sent a letter to Respondent Monroe County Legislature Minority Leader Vince Felder advising
him that the forty-five (45) day statutory period in which an election had to be held by the
Committee had elapsed, and advising him that the Monroe County Legislature’s Democratic
Caucus should act to fill the position.
17. On April 25, 2020, Democratic Leaders and EC members met to discuss the
independent and unapproved actions of Chair Wells. Chair Wells did not attend this meeting.
Instead, the EC was addressed by Mayor Lovely Warren, a vocal supporter of LaShana Boose’s
candidacy for Commissioner, who informed them that Chair Wells had sent a letter to Minority
Leader Felder two days earlier. She advised the EC that the letter called on the County
Legislature to Act to appoint a Commissioner. Although there was disagreement around the
Legislature’s legal ability to act, Minority Leader Felder committed to a transparent process.
Petitioners note that his later actions indicate an apparent change to this position (see Paragraphs
24-26).
18. On April 27, 2020, Monroe County Attorney John Bringewatt, Esq., legal counsel
to the Democratic Caucus, responded to an inquiry of a Legislator, agreeing that the time for the
Committee to vote had not passed. In his opinion, attached as Petitioner’s Exhibit B, he stated,
Pursuant to Executive Order 202.16, MCDC’s time to recommend an appointment as
Election Commissioner has not yet expired. It would thus be premature for the
Democratic Members of the County Legislature to make an appointment. The
Democratic Members of the County Legislature could make an appointment if MCDC
does not act in a timely manner once it is able to do so.

19. On April 30, 2020, Chair Wells hosted an unofficial EC meeting remotely via
Zoom. All EC members were invited and forty-three (43) EC members participated. There were
three primary agenda items: (a) the Board of Elections Update, (b) the Chair Report, and (c) an
opportunity for Van Loon to speak. Van Loon explained that the time in which the Committee
could vote for the Commissioner had passed, that MCDC had not designated a candidate, and
that MCDC had therefore deferred to the Legislators. The EC had not been previously notified of

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this conclusion and had never been given an opportunity by Chair Wells to attempt to hold an
election or toll the election. Members spoke for an hour. During this meeting, Minority Leader
Felder publicly and forcefully supported the selection of Acting Commissioner Boose, although
other candidates for the position had not been solicited, invited to apply, or interviewed. Many
members became concerned that Chair Wells’ inaction and failure to hold an election or honor
the NYS PAUSE, Van Loon’s incorrect legal advice, Minority Leader Felder’s taking over of the
process, and Mayor Warren’s involvement were all intended to prevent a full and fair selection
process, instead ushering in one preferred candidate, Ms. Boose. Others addressed the multiple
Legal opinions, including the opinion from Monroe County Attorney John Bringewatt, that the
NYS PAUSE had tolled all political meetings until June 1, 2020, giving MCDC the window to
act. Chair Wells ended the meeting, agreeing to hear any suggestions on choosing a new
Commissioner.

EXECUTIVE COMMITTEE MEMBERS CONTINUE TO FIGHT FOR A LAWFUL

PROCESS

20. On May 1, 2020, based on (a) the fact that every process in New York had been
tolled and (b) County Attorney Bringewatt’s opinion that the meetings had been paused until
June 1, 2020, Kendra Evans, in an effort to move forward with an election process consistent
with the law, shared with EC members a voting option she had drafted which would have
permitted the full Committee to vote. Much like other elections now conducted by Absentee
Voting, Leader Evans detailed a mail-in voting process that would have been executed between
May 4, 2020 and May 22, 2020.
21. On May 2, 2020, Stephen DeVay, Leader of the 23rd Legislative District, shared
a summary of four possible voting options with other members of the EC. Details were provided
for all these options, including attendance, voting, and other items. All four of these options had
the goal of giving every Committee member the option to vote. These included a mail-in option,
an absentee voting option, an online convention option and a designation style voting drive-thru
convention.
22. As an example of how absentee ballots are being implemented, pursuant to
Executive Order 202.16, which permitted use of absentee ballots in school board elections, all

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school boards across the state are conducting their elections via absentee ballot. (A copy of
information related to the procedures is attached as Exhibit C.)
23. On May 1, 2020 through May 3, 2020, there was continued email communication
between EC members, with some weighing in on the options available to the EC.

MONROE COUNTY LEGISLATURE MINORITY LEADER VINCE FELDER,

WITHOUT NOTICE TO THE DEMOCRATIC CAUCUS, UNLAWFULLY TAKES
OVER THE PROCESS

24. On Friday, May 8, 2020 Minority Leader Felder issued a press release stating the
Democratic Caucus would move forward with the selection. Upon information and belief, other
members of the Caucus had not been notified before the press release was issued. Adopting an
unusual and limiting approach to recruiting, Minority Leader Felder set the deadline for
submission of all applications as the following Monday, allowing for ZERO (0) full business
days for submissions.
25. In response to the press release by Minority Leader Felder, three Democratic
Caucus members, Respondents Roman, Hasman, and Barnhart, issued a press release stating
their surprise about the process announced by Minority Leader Felder, and that this process had
not been shared with or agreed to by the full Caucus.
26. Following the response described in Paragraph 25, above, Minority Leader Felder
extended the time for submission of applications by just two days, to Wednesday, May 13, 2020.
Upon information and belief, eight individuals have applied. We do not know how many
applicants would have applied if the position were advertised to a wider audience or extended
further. On Friday, May 15, 2020 Monroe County Legislature Democratic Staff Director Dennis
O’Brien sent an email to applicants indicating that interviews would be held beginning May 18,
2020, without specifying dates or times. Upon information and belief, Minority Leader
Felder communicated to Legislators that he will hold the last applicant interview on
Friday, May 22, 2020.
27. The vote of the EC on February 20, 2020 was never rescinded. In furtherance
thereof, the EC has created an election process and has begun to execute the process by seeking
applicants, setting deadlines, and creating a system for voting.

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LAW

ELECTION LAW 3-204 IS CLEAR THAT THE FULL COMMITTEE MEMBERSHIP

HAS THE RIGHT TO ELECT THE COMMITTEE’S NOMINEE FOR THE BOARD OF
ELECTIONS COMMISSIONER POSITION

28. Election Law Section 3-204 states, in pertinent part:

1. At least thirty days before the first day of January of any year in which a
commissioner of elections is to be appointed, the chairman or secretary of the appropriate
party county committee shall file a certificate of party recommendation with the clerk of
the appropriate local legislative body.

2. Party recommendations for election commissioner shall be made by the county

committee or by such other committee as the rules of the party may provide, by a
majority of the votes cast at a meeting of the members of such committee at which a
quorum is present. If at any time a vacancy occurs in the office of any election
commissioner other than by expiration of term of office, party recommendations to fill
such vacancy shall be made by the county committee or by such other committee as
the rules of the party may provide, by a majority of the votes cast at a meeting of the
members of such committee at which a quorum is present. (Emphasis added.)

3. The certificate filed shall be in such form and contain such information as shall be
prescribed by the state board of elections.

4. Commissioners of election shall be appointed by the county legislative body, or in

the city of New York, by the city council. Provided, however, that if a legislative body
shall fail to appoint any person recommended by a party for appointment as a
commissioner pursuant to this section, within thirty days after the filing of a certificate of
recommendation with such legislative body, then the members of such legislative body
who are members of the political party which filed such certificate may appoint such
person. And further provided, if there are no members of the legislative body who are
members of the political party which filed such certificate, the appointment shall take
effect upon the expiration of thirty days from the date that the certificate was filed. If
none of the persons named in any of the certificates filed by a party are so appointed
within sixty days after the filing of any such certificate, then such party may file another
certificate within thirty days after the expiration of any such sixty day period
recommending a different person for such appointment. If a party fails to file a
certificate within the time prescribed by this section, the members of the legislative body
who are members of such party may appoint any eligible person to such office.

5. If at any time a vacancy occurs in the office of any election commissioner other than
by expiration of term of office, such vacancy shall be filled as herein provided for the

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regular appointment of a commissioner except that a person who fills a vacancy shall
hold such office during the remainder of the term of the commissioner in whose place he
shall serve. Certificates of party recommendation to fill such vacancy shall be filed not
later than forty-five days after the creation of the vacancy.

29. In Ryan v. Albany County Democratic Committee, 68 AD2d 1014 (1979), the
Third Department reviewed a claim by plaintiffs that the appointment of the Democratic Election
Commissioner by the legislature was unlawful. The Court recognized that the recommendation
of the Albany Democratic Count Committee was deemed by the courts to be null and void
because the executive committee, and not the county committee, made the recommendation to
the legislature. (Ultimately, in that case, the county legislature appointed the same individual
based on its own authority within the statute.)
30. In Matter of Wood v. County of Cortland, 72 AD3d 1447 (2010), the Third
Department, though not reviewing an action of an executive committee, again recognized the
requirement that the procedures be followed in selecting a commissioner.
31. In Matthews v. Zwirn, 170 AD2d 708, (1991) the Second Department noted that
in all but two counties in New York State, “the power to recommend an Elections Commissioner
lies with the County Committee, acting by majority vote (cite omitted). In Nassau and Suffolk
Counties, this power resides in the Chair of the County Committee (cites omitted).” This Court
recognized what the statute plainly states; that the rules of the state as to appointment of Board of
Elections must be followed unless a county has its own specific, separate rules.
32. In Eisberg v. Dutchess County Legislature 37 F. Supp. 2d 283 (1999), the
plaintiffs sought to compel the local legislature to appoint their party’s selected candidate for
commissioner. The United States District court for the Southern District of New York reviewed
the statutory scheme contained in Elections Law 3-204, again, confirming the interpretation of
the statute set forth above.

GOVERNOR CUOMO’S EXECUTIVE ORDERS TOLLED THE TIME FOR THE

ELECTION

33. In mid-March of 2020, the COVID-19 pandemic became the focus of every
government in our country – national, state, and local. Hundreds were dying from the

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extraordinarily contagious and deadly disease. In response to the health emergency, Governor
Cuomo issued numerous executive orders, beginning on March 12, 2020.
34. On March 12, 2020, in the first of the executive orders, Executive Order 202.1,
Governor Cuomo suspended all large meetings, stating, “IN ADDITION, by virtue of the
authority vested in me by Section 29-a of Article 2-B of the Executive Law to issue any directive
during a disaster emergency necessary to cope with the disaster, I hereby issue the following
directives for the period from the date of Executive Order through April 11, 2020: …Any large
gathering or event for which attendance is anticipated to be in excess of five hundred people
shall be cancelled or postponed for a minimum of thirty days.”
35. The Monroe County Democratic Committee is comprised of over 1700 members.
Thus, a meeting of its membership would have been unable to hold the statutorily required
meeting. To have held the meeting would have been to have violated the Executive Order.
36. Governor Cuomo issued a third executive order on March 14, 2020, Executive
Order 202.2, addressing aspects of elections. With a clear intent to avoid endangering voters, he
suspended many procedures relating to voting, stating:
Suspension of laws and regulations:

Section 8-400 of the Election Law (absentee ballot law) is temporarily suspended and
otherwise altered to provide that due to the prevalence and community spread of COVID-
19, temporary illness for the purpose of this section shall include the potential for
contraction of the COVID-19 virus for any election held on or before April 1, 2020;

Solely for any election held on or before April 1, 2020, Section 8-400 of the Election
Law is hereby further modified to allow for electronic application, with no requirement
for in-person signature or appearance to be able to access an absentee ballot; and
deadlines to apply for such ballot are hereby modified to no later than March 23, 2020
and such ballots once voted shall be postmarked no later than March 24, 2020 or may be
delivered in person to any board of elections; and

Article 6 of the Election Law is modified to the extent necessary to reduce required
number of signatures on petitions pursuant to Section 6-136 of such law to 1.5% of the
enrolled voters required, or 30% of the stated threshold, whichever is less. Further such
provisions are modified to require that gathering of signatures shall be suspended
effective Tuesday, March 17, 2020 at 5 p.m.

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37. Although the election of a Commissioner for the Board of Elections by a county
committee to fill a vacancy was not among the contemplated at the time of the signing of the
March 14th order, the intent to allow for alternative procedures under the Election Law was
clear.
38. After the first executive orders, a series followed, each narrowing the
opportunities for public gatherings and increasingly limiting the ability of individuals to
participate in public and group events. They covered numerous state and local agencies, and a
wide variety of business and other interactions, ultimately restricting employment, schools,
medical contacts and every aspect of life in New York.
39. On March 16, 2020, Executive Order 202.3 was issued, stating, inter alia, “The
directive requiring large gatherings and events to be cancelled or postponed if they had
anticipated attendance in excess of 500 people by virtue of Executive Order 202.1 dated March
12, 2020, is hereby amended and modified to require that any large gathering or event (concert,
conference, worship service, performance before a large audience, etc.) shall be cancelled or
postponed if more than fifty persons are expected in attendance, at any location in New York
State until further notice.” That order also suspended village elections, stating “Any village
election to be held March 17, 2020 shall be postponed and any elected official holding such
position shall remain in office until such time as a new election is held.” On March 18, 2020,
other village elections were suspended in Executive Order 202.5. On March 18th, the Governor
began to implement the NYS PAUSE, distinguishing between essential and non-essential
employees, and setting forth numerous restrictions and recommendations as to employment.
40. In Executive Order 202.7 signed on March 19, 2020, employment restrictions
were expanded. On March 20, 2020 the Governor ordered the following in Executive Order
202.8:
In accordance with the directive of the Chief Judge of the State to limit court operations
to essential matters during the pendency of the COVID-19 health crisis, any specific
time limit for the commencement, filing, or service of any legal action, notice, motion, or
other process or proceeding, as prescribed by the procedural laws of the state, including
but not limited to the criminal procedure law, the family court act, the civil practice law
and rules, the court of claims act, the surrogate’s court procedure act, and the uniform
court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part
thereof, is hereby tolled from the date of this executive order until April 19, 2020;

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Executive Order 202.8 also tolled evictions, tax bills, and numerous other obligations.
Notably, this Order suspended the rights of those imprisoned to have their cases tested before a
judge at a preliminary hearing, or a grand jury. Thus, even individuals’ due process rights with
respect to liberty were tolled. As noted below in Paragraphs 47 and 48, Executive Order
202.8 was relied upon by Ms. Boose in Matter of Sheppard v. Monroe County Board of
Elections, et. al., a recent case that did not address matters specifically addressed in a
PAUSE-related Executive Order. Ms. Boose and the Court acknowledged that the oath of
office deadline, although not specifically addressed in Executive Order 202.8, was
nevertheless tolled by Executive Order 202.8. Executive Order 202.8 was read sensibly and
broadly in that case, as it must be read in this case.
41. On March 28, 2020, Executive Order 202.12 delayed numerous elections, stating,
Any presidential primary to be held on April 28, 2020, shall be postponed and
rescheduled for June 23, 2020.
Any special election to be held on April 28, 2020, including for the Twenty-Seventh
Congressional District, the Twelfth Assembly District, the Thirty-First Assembly District,
the One Hundred and Thirty-Sixth Assembly District, and the Fiftieth Senate District
shall be postponed and rescheduled for June 23, 2020, and the ballots shall remain the
same.

42. On March 29, 2020, pursuant to Executive Order 202.13, the Governor suspended
numerous other elections and election related matters, including the following:

Circulation, filing, and collection of any designating petitions, or independent nominating

petitions for any office that would otherwise be circulated or filed pursuant to the
Election Law, Education Law or any other consolidated law for any office commencing
March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or
May of 2020 is hereby postponed until at least June 1, 2020, and subject to further
directive as to the timing, location, or manner of voting for such elections.

43. On April 9, 2020, Executive Order 202.15 suspended public hearings, tolling the
periods in which they were required to be held as follows:
Any local official, state official or local government or school, which, by virtue of any
law has a public hearing scheduled or otherwise required to take place in April or May of
2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing

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may continue if the convening public body or official is able to hold the public hearing
remotely, through use of telephone conference, video conference, and/or other similar
service.

44. On April 12, 2020, Executive Order 202.16 included a suspension of caucuses,
stating:

Any political party, political party authority or political party official, which, by
virtue of any law has a caucus scheduled or otherwise required to take place in
April or May of 2020, shall be postponed until June 1, 2020, without prejudice,
however such caucus may continue if the caucus is able to be held remotely, through use
of telephone conference, video conference, and/or other similar service, and provided that
notice for any party caucus to be held remotely shall be deemed satisfied if such notice
includes specific information on remote participation and has been filed with the clerk
and board of elections at least five days preceding the day of the caucus and published
either by newspaper publication thereof once within the village, or on the party 's
website, or through electronic mail to any previous caucus participant for which the party
has an electronic mail address. (Emphasis added)

45. The combination of (a) the preface to the executive orders, (b) the tolling of time
and suspension of periods for all manner of elections, caucuses, licenses, school, rent, tax bills,
and all court and statutory activities, including the tolling of procedures that tested whether
individuals had the right to be released from custody, (c) the precedent of the Court in , (d) and
the explicit acknowledgement of Acting Commissioner Boose and the Monroe County Legal
Department that Executive Order 202.8 tolled deadlines not expressly addressed in the text of
such Executive Order illustrate clearly that this one election for Commissioner was among the
activities for which a deadline was tolled. In other words, it is extremely unlikely that the
Governor specifically concluded that the Monroe County Board of Elections Democratic
Commissioner’s Election was the one election, among all statewide, that had to go forward in the
middle of a pandemic because it was deemed so critical to proceed, while every other New York
process was stayed.
46. Chair Wells’ email to Mr. Maneiro dated April 17, 2020, acknowledged the Board
of Elections Commissioner election process was delayed until June 1, 2020 based on Executive
Order 202.16 (see Paragraph 14 above). This use of Executive Order 202.16 by Ms. Wells to
avoid holding an election was an acknowledgement that the forty-five day period deadline for

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MCDC to hold an election pursuant to Election Law 3-204 was tolled. Her current position is
inexplicably inconsistent.
47. In a recent proceeding involving Ms. Boose as Acting Commissioner, Matter of
Sheppard v. Monroe County Board of Elections, et. al., relating to the review of the designating
petitions of Natalie Sheppard, Ms. Boose argued that, although the deadline for her oath of office
was not expressly addressed by Executive Order, it was nevertheless tolled. Specifically, with
respect to the fact that Ms. Boose had failed to take an oath before acting as Commissioner, Ms.
Boose argued that she was unable to do so due to the delays caused by the pandemic. In the
Memorandum of Law in support of Ms. Boose’s petition, the Assistant County Attorney stated,
Furthermore, and as explained in Respondents’ affidavit, Respondent Boose was only
appointed a short while before Executive Order 202.8 extended the time limit for all non-
essential filings. Although the executive orders do not specifically refer to oaths of office
pursuant to the Public Officers Law, it is respectfully submitted that since the actions of
the Acting Commissioner are considered valid anyway, the oath of office should be
considered non-essential and the time to file it should be considered tolled due to
Executive Order 202.8. (Emphasis added)

48. In his decision, Justice Odorisi agreed with the reasoning, stating,
First, the Oath of Office complaint against Respondent Lashanna [sic] D. Boose
(“Boose”) cannot succeed. Petitioner is correct that an Oath of Office is required by
Public Officers Law (“POL”) § 10, but Boose’s time to file the same was extended by
the Governor’s Executive Orders [Docket # 20, Ex. #’s 8-9]. (Emphasis added)

49. On April 27, 2020, County Attorney Bringewatt, as legal counsel to the
Democratic Caucus, responded to an inquiry of a Legislator, agreeing that the time for the
Committee to vote had not passed. In his opinion, attached as Petitioner’s Exhibit B, he stated,
Pursuant to Executive Order 202.16, MCDC’s time to recommend an appointment
as Election Commissioner has not yet expired. It would thus be premature for the
Democratic Members of the County Legislature to make an appointment. The
Democratic Members of the County Legislature could make an appointment if
MCDC does not act in a timely manner once it is able to do so. (Emphasis added)

THE MUNICIPAL HOME RULE LAW BARS THE LEGISLATURE FROM

CREATING PROCEDURES INCONSISTENT WITH STATE LAW

50. The County Legislature may not alter the rules for selection of a Commissioner for two
reasons. First, the state law reserves that right to the county committee (see above). Second, a

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county legislature may not pass a law that overrides the state law. This principle is set forth both
in the New York Constitution and in case law. For a detailed discussion of the history and
requisite process, see Martin v. Reuning, 194 Misc. 2d 201 (Sup. Court Allegany County, 2003).
51. Section 34 of the Municipal Home Rule Law states, in pertinent part:
3. Except in accordance with provisions of this chapter or with other laws enacted by the
legislature, a county charter or charter law shall not supersede any general or special law
enacted by the legislature:
…g. In this chapter or in the civil service law, eminent domain procedure law,
environmental conservation law, election law, executive law, judiciary law, labor law,
local finance law, multiple dwelling law, multiple residence law, public authorities law,
public housing law, public service law, railroad law, retirement and social security law,
state finance law, volunteer firefighters’ benefit law, volunteer ambulance workers’
benefit law, or workers’ compensation law.

51. Thus, it is clear that the County Legislature cannot supersede the state law.
52. In Matter of Monahan v. Murphy, 71 AD2d 92, aff’d 51 NY2d 807, the Third
Department, in a decision affirmed by the Court of Appeals, addressed the applicability of the
Home Rule Law to the Election law in the context of a county’s effort to modify an Election
Commissioner’s salary, stating,
Section 34 (subd 3, par g) of the Municipal Home Rule Law governs the relationship
between the Election Law and the Rensselaer County Charter. It provides that no county
charter or charter law shall supersede the Election Law…. Reference to the definitional
section of the [***6] Municipal Home Rule Law ( § 2, subd 7) mandated the
employment of the definition of a legislative body as “[the] board of supervisors * * * or
other elective governing board * * * vested by state statute * * * with jurisdiction to
initiate and adopt local laws or ordinances, whether or not such local laws or ordinances
require the approval of the elective chief executive officer” (emphasis added). Here
however, we are not concerned with a State statute, as in Wiley, that requires resort to the
general provisions of the Municipal Home Rule Law for guidance with respect to the
operations of a local legislative body. Rather, we are dealing with a State statute, the
Election Law, which reflects an intensive legislative approach to component procedures
comprising the electoral process to the end that a structured, systematic scheme is created
embodying the essential principles guaranteeing the expression of the will of the
electorate. To further that purpose and to insure that boards or bodies with legislative
powers be precisely defined, the Election Law provides in subdivision 16 of section 1-
104 that “[the] term ‘county legislative body’ shall mean the elected governing body of a
county” (emphasis added). Therefore, when the command of section 3-208 of the
Election Law to the effect that “[each] election commissioner shall receive an annual
salary to be fixed by the county legislative body” (emphasis added) is juxtaposed to the

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only permissible definition of such body (Election Law, § 1-104, subd 16), it inexorably
follows that such fixation of salaries is not subject to executive veto.

Matter of Monahan v Murphy, 71 AD2d 92, 94-95 [3d Dept 1979]

53. As emphasized in Matter of Baker v. Kalil, 182 AD2d 895, (Third Dept., 1992) if
a county committee is within the period in which it can provide a certification, the legislature has
no legal authority to proceed with its own decision. Given the tolling of all statutes in New
York, the time has not run for the Committee to elect the Commissioner.

THE PARTIES

PETITIONERS

54. Petitioners Nicholas Coffee, Kathleen Iannone, Anthony J. Plonczynski-Figueroa,

and Michael L. Slade are members of the Monroe County Democratic Committee Executive
Committee. Each member of the Executive Committee is a member of leadership of the Monroe
County Democratic Committee and a member of the Monroe County Democratic Committee.
As members of the Monroe County Democratic Committee each of these Petitioners would be
entitled to vote in an election for the Democratic Commissioner of the Board of Elections.
55. David L. Garretson is a member of the Monroe County Democratic Committee
and former Chair of the Monroe County Democratic Committee. As a Committee member, he
would be entitled to vote in an election for the Democratic Commissioner of the Board of
Elections.
56. Saul A. Maneiro is an applicant for the position of Monroe County Board of
Elections Democratic Commissioner.

RESPONDENTS

57. The following respondents are Monroe County Democratic Legislators, and
members of the Democratic Caucus: Rachel Barnhart, Joshua Bauroth, John Baynes, Vincent
Felder, Ernest Flagler-Mitchell, Linda Hasman, Frank Keophetlasy, Sabrina LaMar, Calvin Lee,
Howard Maffucci, Joseph Morelle, Jr., Justin Wilcox, Yversha Roman, and Michael Yudelson.
58. Brittaney Wells is the Chairperson of the Monroe County Democratic Committee.

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59. Nate Van Loon is Counsel to the Monroe County Democratic Committee.
60. The Monroe County Democratic Committee is the county party committee of the
Democrats, and the organization referenced in Election Law 3-204.

THE NECESSITY OF A PRELIMINARY INJUNCTION

IRREPARABLE HARM

61. A stolen election always results in irreparable harm. Impropriety and the
appearance of impropriety erode our community’s faith in our leaders and, more importantly, the
democratic process itself. Practically speaking, if an appointment is made for a Board of
Elections Commissioner and the appointment is subsequently overturned as unlawful, there will
be several irreparable, adverse effects that can and must be prevented. This is a presidential
election year, and there are numerous significant elections proceeding in the near future. To
reverse the illegal appointment of a Commissioner and start over with the legal process (i.e. a
vote of the members of the MCDC) will waste the precious limited time needed to prepare for
these significant elections. Moreover, allowing the illegal appointment process to move forward
would only serve to reward Chair Wells and Van Loon for their foot-dragging and resistance to
the proper and historically accepted process. All parties agree the additional passage of time will
cause irreparable harm to the election process in Monroe County. Furthermore, if a person is
illegally appointed by the legislature, each qualified applicant who is entitled to be considered by
the full committee is irreparably harmed. In fact, if the applicant selected by the legislature is
not appointed using a legal process and/or is not adequately qualified, it will irreparably damage
campaigns, candidates, and voters’ rights in the coming months.

LIKELIHOOD OF PREVAILING ON THE MERITS

62. It is clear that New York State Election Law reserves the right to select a party’s
commissioner to the party’s Committee membership in the first instance. While in normal times,
this would be required to occur in forty-five (45) days, these are far from normal times, and the
entirety of New York state was “put on pause.” The election for Commissioner was not an
exception to the requirement that everyone stay home and nearly every process, except essential

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services, stop. All elections were delayed, as they were not “essential services.” This was no
different. There is an extreme likelihood that Petitioners will prevail on appeal. Petitioners note
that the Legislature’s own lawyer, County Attorney Bringewatt, fully concurs with Petitioners on
this point of law. This Court must not allow a small cadre of the Respondents to conduct an end-
run around rules that do not allow them to reach their objective: the appointment of their favored
person against the will of the members of the MCDC. Respondents’ foot-dragging and claims of
inconvenience simply do not stand the test of the law.

THESE ISSUES CANNOT BE RESOLVED IN AN ACTION FOR MONEY DAMAGES

63. Petitioners are not seeking monetary damages. Instead, they are seeking this
Court to ensure that Respondents to not wrongfully take away the right of MCDC members to
vote, the right of applicants to be ensured a lawful process and legitimacy of the successful
applicant’s position, and that legislators not be compelled to be in a position that pits them
against their constituents.

NO OTHER REQUEST FOR SIMILAR RELIEF HAS BEEN PREVIOUSLY MADE

64. Neither this relief, nor any similar relief, including a request for any other
provisional remedy, has been previously sought.

WHEREFORE, by this Petition-Affirmation it is respectfully requested that this Court grant an

Order:

A. Barring Respondents from the Monroe County Legislature from holding any
interviews and making any appointment of the Democratic Board of Elections
Commissioner;

B. Requiring that Respondents Brittaney Wells, Nate Van Loon and the Monroe
County Democratic Committee diligently develop and execute a process for
holding an election to select the person to be certified by the Monroe County
Democratic Committee as the nominee for the Monroe County Board of Elections

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