Amended complaint, filed 12-14-07
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORKIndex No. 115399/2007
AMENDED VERIFIED COMPLAINT
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MITCHEL COHEN, ROBERT GOLDBERG, ALEX STEINBERG, PATTY HEFFLEY, FRANK LeFEVER, JAMES ROSS, GAIL BLASIE, LINDA ZISES and SIDNEY SMITH, Plaintiffs,
--against--
PACIFICA FOUNDATION, a California corporation, d/b/a WBAI RADIO, CASEY PETERS and DALE RATNER, Defendants.
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Plaintiffs MITCHEL COHEN, ROBERT GOLDBERG, ALEX STEINBERG, PATTY HEFFLEY, FRANK LeFEVER, JAMES ROSS, GAIL BLASIE, LINDA ZISES and SIDNEY SMITH, as and for an amended complaint in this action, allege as follows:
OVERVIEW
1. This is a hybrid action/proceeding seeking inter alia (a) a declaratory judgment and injunctive relief in the nature of a delay of the closing of voting and the counting of ballots in a corporate “delegate” election so that (1) qualified voters who notified defendants before the close of the election that they had not received ballots are provided with a ballot and are afforded a reasonable opportunity to cast them, and (2) certain other ballots cast by persons not qualified to vote or that were cast late are disqualified and not counted; (b) a declaration that any actions taken by any improperly constituted entity or organ of the corporation during the pendency of this action are null and void; and (c) an order requiring the defendant corporation to provide the membership list as of August 31, 2007 to plaintiff James Ross.
AS AND FOR A FIRST CAUSE OF ACTION
PARTIES
2. Plaintiff MITCHEL COHEN is a resident of the State of New York, County of Kings, and is presently a Delegate sitting on the WBAI Local Station Board (hereinafter “WBAI-LSB”).
3. Plaintiff ROBERT GOLDBERG is a resident of the State of New York, County of Nassau.
4. Plaintiff ALEX STEINBERG is a resident of the State of New York, County of Kings, and is presently a Delegate sitting on the WBAI-LSB.
5. Plaintiff PATTY HEFFLEY is a resident of the State of New York, County of New York, and is presently a Delegate sitting on the WBAI-LSB.
6. Plaintiff FRANK LeFEVER is a resident of the State of New York, County of New York.
7. Plaintiff JAMES ROSS is a resident of the State of New York, County of Rockland, and is presently a Delegate sitting on the WBAI-LSB and is a candidate in the current election of Delegates to the WBAI-LSB (hereinafter “2007 WBAI Delegate Election”).
8. Plaintiff GAIL BLASIE is a resident of the State of New York, County of Nassau.
9. Plaintiff LINDA ZISES is a resident of the State of New York, County of Kings.
10. Plaintiff SIDNEY SMITH is a resident of the State of New York, County of Kings.
11. Defendant PACIFICA FOUNDATION (hereinafter “PACIFICA”) is a California non-profit corporation doing business in New York as WBAI RADIO (hereinafter “WBAI”) with its principal business offices and broadcast studios in the State of New York located at 120 Wall Street, 10th Floor, New York, New York 10005.
12. Defendant CASEY PETERS (“PETERS”) is a resident of the State of California, the National Elections Supervisor for PACIFICA.
13. Defendant DALE RATNER (“RATNER”) is a resident of the State of New York, and the Local Elections Supervisor for PACIFICA and WBAI supervising the 2007 WBAI Delegate Election.
THE RELATIONSHIP OF THE PARTIES
14. A true and complete copy of the restated certificate of incorporation of PACIFICA is annexed hereto and made a part hereof as Exhibit 1.
15. A true and complete copy of the bylaws of PACIFICA are annexed hereto and made a part hereof as Exhibit 2.
16. Plaintiffs MITCHEL COHEN, ROBERT GOLDBERG, ALEX STEINBERG, PATTY HEFFLEY, FRANK LeFEVER, JAMES ROSS and GAIL BLASIE are “Listener-Sponsor Members” in good standing of WBAI and PACIFICA, by reason of having contributed $25 or more or volunteered 3 hours or more to WBAI in the 12-month period which ended August 31, 2007, pursuant to the Pacifica Foundation Bylaws, Article Three, Section 1.A., “Listener-Sponsor Members.” v 17. Plaintiffs LINDA ZISES and SIDNEY SMITH are “Staff Members” in good standing of WBAI and PACIFICA by reason of being non-management paid staff or members of the WBAI unpaid staff organization recognized by WBAI management on August 31, 2007, pursuant to the Pacifica Foundation Bylaws, Article Three, Section 1.B., “Staff Members.”
18. PETERS, in his capacity as the National Elections Supervisor for PACIFICA, is supervising the current election of Delegates regionally at the five Pacifica Radio stations, including the 2007 WBAI Delegate Election, which elects Delegates to be seated in December as members of the WBAI-LSB, and will meet in January 2008 to elect Directors of PACIFICA.
19. PETERS, in his capacity as National Elections Supervisor, supervises RATNER, in his capacity as Local Elections Supervisor.
20. PACIFICA holds broadcast licenses from the Federal Communications Commission for five (5) radio stations across the country, including WBAI-FM in New York.
THE FACTS GIVING RISE TO THIS ACTION
21. On October 23, 2007, defendants caused to be mailed to some Members the first ballots delivered in the 2007 WBAI Delegate Election.
22. Defendants currently are conducting the 2007 WBAI Delegate Election and the Delegates elected thereby will be seated in December 2007 and will serve for three years on the WBAI-LSB and will meet in January 2008, together with the WBAI Delegates elected in 2006 (“the 2008 WBAI Delegate Assembly”), to elect four (4) Directors to represent the WBAI membership on the Pacifica Foundation Board of Directors. Half the Delegate seats on the WBAI-LSB are currently up for election, with the approximately 15,519 Listener-Sponsor Members electing nine (9) Delegates, and the approximately 240 Staff Members electing three (3) Delegates.
23. By November 15, 2007, plaintiffs, and many persons similarly situated to plaintiffs, requested replacement ballots from defendants.
24. As of 11:59 P.M. on November 15, 2007, none of the plaintiffs received ballots, original, replacement, or otherwise.
25. On or about November 13, 2007, RATNER sent a memo to the candidates and the Delegates sitting on the WBAI-LSB stating that he and PETERS would collect the ballots from the Post Office on November 17, 2007, and that they would count the ballots on that same day.
26. In the aforesaid memo, RATNER stated that qualified voters who had not received ballots could come in person to WBAI on Friday, November 16, 2007, between Noon and Midnight, and that they would be given provisional ballots that they could cast at that time.
27. On or about November 13, 2007, a WBAI staff member assisted RATNER in making a cart containing RATNER’s voice (“the First Ratner Cart”).
28. The First Ratner Cart announced that qualified voters could obtain ballots and cast them at the Radio Station on November 16, 2007 between Noon and Midnight.
29. Upon information and belief, at the time defendants announced the extension of the 2007 WBAI Delegate Election to allow in-person voting at the Radio Station on November 16, 2007, many other qualified voters besides the plaintiffs had received neither original ballots nor replacement ballots, and the aforesaid memo was not distributed in a manner calculated to likely give all qualified voters who did not receive ballots actual or sufficient notice of how they could obtain provisional ballots so that they could cast a ballot in the 2007 WBAI Delegate Election.
30. By requiring qualified voters who had not received a ballot to appear at 120 Wall Street, 10th Floor, New York, New York 10005 on Friday, November 16, 2007 if they desired to cast a ballot, defendants placed a significant hardship and additional condition for the exercise of voting rights on all qualified voters who did not receive a ballot, such hardship and condition that was not imposed on qualified voters who received a ballot in the U.S. Mail.
31. Upon information and belief, the procedure for issuing provisional ballots is that either the National Elections Supervisor or the Local Elections Supervisor checks various documents which collectively and allegedly constitute the membership list to make sure that the person requesting a ballot is qualified to vote, then checks to see whether a ballot has previously been issued to that qualified voter, and invalidates the previously issued ballot by invalidating the “PIN” number associated with that ballot so that it will not be counted by the electronic machine used to count the ballots. Then a new “provisional ballot” is issued to the qualified voter and the “PIN” number associated with that ballot is validated so that the electronic ballot counting machine will count one and only one ballot cast by that member.
32. Plaintiffs are personally aware of at least 30 WBAI Listener-Sponsor Members and at least 25 WBAI Staff Members who did not receive a ballot by November 15, 2007 and who either did not know that they could obtain provisional ballots and vote in person at WBAI on November 16, 2007, or who were unable to go to WBAI’s offices at 120 Wall Street, New York, New York on November 16, 2007 in order to vote due to many reasons, including handicaps, other employment, long distances that must be traveled, etc.
33. The WBAI membership mailing list that was supplied to PETERS in order to mail the ballots is maintained by and under the control of WBAI Staff Members and others who are political opponents of virtually all of the qualified voters known to Plaintiffs who have not received their ballots. While some of the ballots may have been lost in the mail through Post Office errors, it is highly unlikely that such a large number of known political opponents of the Staff Members in charge of maintaining the mailing list would not receive their ballots, or their replacement ballots, since they do receive other mailings from WBAI. It would be easy for the Staff Members and others in control of or having access to the mailing list database to have changed the zip code or otherwise altered the addresses of qualified voters whom they knew to be their political opponents so that their ballots could not be delivered by the Post Office, in order to change the outcome of the WBAI Delegate Election.
34. Upon information and belief, many other qualified voters are similarly situated to the plaintiffs.
35. On Friday, November 16, 2007, this Court ordered defendants to impound all ballots, and place them in a sealed box.
36. Notwithstanding that Dale Ratner was served with the order at 5:30 P.M. on November 16, 2007, he did not take custody of and impound the ballots until Monday, November 19, 2007 at 11:00 AM, allowing ballots to be added by the Postal Service on both Saturday, November 17, 2007, and Monday, November 19, 2007 to the ballots already in the post office box and which were ordered impounded by the Court.
37. Rather than providing ballots and a reasonable opportunity to cast them to all persons who notified defendants by November 15, 2007 that they had not received ballots, defendants announced that the election would remain open and they enlarged the period of time for all persons to cast ballots, most notably all persons who received ballots well before November 15, 2007 and who were given a reasonable opportunity to cast them and failed to do so.
38. Certain qualified voters who never requested replacement ballots had their original ballot cancelled, were mailed provisional ballots, and were informed by defendants that they must vote a second time if their vote is to be counted.
39. Certain qualified voters who never requested replacement ballots by November 15, 2007 were issued replacement ballots and have been given an opportunity to cast them.
40. Even if since the time of the filing of the complaint in this action, some of the plaintiffs and persons similarly situated now have been given ballots, they are still in need of a reasonable opportunity to cast them and are lacking adequate instructions as to how they may do so.
41. Upon information and belief, in 2007 the Waivers Committee of the WBAI-LSB approved so-called “hardship” waivers of the minimum monetary contribution and minimum volunteer time requirements for membership to many persons seeking such waivers despite that such persons had no bona fide hardship and/or no sincere interest in WBAI membership.
42. Upon information and belief, many, if not all, hardship waivers granted by the Waivers Committee of the WBAI-LSB in 2007 were granted after August 31, 2007.
43. Upon information and belief, the membership list used by Casey Peters and Dale Ratner to determine whether a person is qualified to vote in the 2007 WBAI Delegate Election, was tampered with and many persons who are entitled to vote are not listed on the membership list and were denied an opportunity to cast a ballot and many persons not entitled to vote are listed on the membership list and have cast ballots.
44. Since November 19, 2007 when it was emptied out pursuant to the November 16, 2007 order of this Court, ballots cast by mail after November 15, 2007 are accumulating in the post office box.
45. Subsequent to 11:59 PM on November 16, 2007, defendants publicly announced for the first time that the WBAI Delegate Election was extended for all voting to November 23, 2007.
46. When after November 15, 2007 defendants mailed out replacement ballots to members requesting them, including several of the plaintiffs, they contained instructions leaving blank the date by which the ballot must be received by defendants in order to be counted.
47. Upon information and belief, the post office box now contains both original ballots cast by persons who originally received ballots well before November 15, 2007, had a reasonable opportunity to cast them, and failed to cast them prior to November 15, 2007, and provisional ballots issued to persons who did not receive original ballots, notified defendants prior to November 15, 2007 that they had not received a ballot, were mailed a provisional ballot, and cast it by mail.
48. On November 29, 2007, the parties stipulated to an adjournment of the return date of plaintiff’s motion for a preliminary injunction to January 24, 2008 to provide defendants with another opportunity to provide this Court with affidavits in opposition to plaintiff’s motion for a preliminary injunction, and the temporary restraining order issued by the Court on November 16, 2007 continued in effect by its own terms.
49. Subsequently, PETERS announced that all WBAI Delegates whose terms expired on or about December 1, 2007 and all Directors elected by the WBAI Delegates whose terms will be expiring in late January 2008 shall remain in office during the pendency of this action.
50. A meeting of the WBAI-LSB is scheduled for December 27, 2007 to conduct business.
51. Upon information and belief, an assembly of all WBAI Delegates will be held in early January 2008 for the sole purpose of electing Directors.
52. Upon information and belief, on January 28, 2008, the board of directors of PACIFICA will meet and the WBAI Station Representative Directors elected in early January 2008 at the WBAI Delegate Assembly will be seated and commence serving their terms.
53. If large numbers of qualified voters are disenfranchised in this election and large numbers of ineligible persons are permitted to vote, it is quite likely that the outcome of the WBAI Delegate Election will be swayed in favor of the political allies of those Staff Members who were in control of the mailing list, and that control of the WBAI-LSB and the PACIFICA Board of Directors will also remain under the control of the political allies of those Staff Members. On the other hand, if Plaintiffs and all persons similarly situated to plaintiffs who have not received ballots are able to vote and the ballots cast by ineligible persons are disqualified, then it is quite likely that majority control of the WBAI-LSB and the Pacifica Board of Directors will change.
54. In the absence of a proper order, plaintiffs, and a great number of similarly situated individuals, will be deprived of their rights under the bylaws to vote in the 2007 WBAI Delegate Election, to choose WBAI Delegates, and to elect WBAI Delegates who will select candidates the members desire to serve as Directors.
55. Plaintiffs have no adequate remedy at law.
AS AND FOR A SECOND CAUSE OF ACTION
56. On November 29, 2007, plaintiff JAMES ROSS caused to be delivered to PACIFICA a letter dated November 25, 2007 demanding the corporation’s membership list.
57. A true and complete copy of the November 25, 2007 letter of James Ross is annexed hereto and made a part hereof as Exhibit 3.
58. The purpose for which ROSS seeks inspection and copying of the membership list is to ascertain the extent of irregularities with regard to the mailing of ballots to members eligible to vote in the WBAI Local Station Board election held between October 15, 2007, and on or about November 15, 2007, by comparing the membership list to the list of persons claiming not to have received ballots and who are known to plaintiffs to be members qualified to receive a ballot.
59. ROSS will not sell the list or use it to solicit money or property; will not use it for any purpose which he does not reasonably and in good faith believe will benefit the corporation; and will not use it for any commercial purpose or purpose in competition with Pacifica Foundation.
60. More than ten (10) business days have elapsed since PACIFICA’s receipt of ROSS’ letter demanding inspection and copying of the membership list and PACIFICA has neither provided ROSS with an opportunity to inspect and copy the membership list nor with a reasonable alternative to an opportunity to inspect and copy the list that will fulfill the purposes for which the inspection is sought.
61. Because the purpose of the inspection of the list is to obtain the names, addresses of all persons entitled to receive a ballot in the WBAI Delegate Election, there is no reasonable alternative to an inspection of the membership list.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request the following relief:
a. A declaration that the WBAI Delegate Election as conducted and/or supervised by the defendants violates PACIFICA’s bylaws by denying ballots to persons entitled to receive and cast them in the WBAI Delegate Election and granting a right to cast ballots in the WBAI Delegate Election to persons who are not qualified to vote in said election;
b. A declaration that all actions of WBAI authorized, approved, or ratified by a vote of the WBAI-LSB only because WBAI Delegates whose terms expired on December 1, 2007 were permitted to vote thereon are null and void;
c. A declaration that all actions of Pacifica Foundation authorized, approved, or ratified by a vote of the directors of the board of Pacifica Foundation only because Directors elected at an improperly constituted 2008 WBAI Delegates Assembly were permitted to vote thereon are null and void;
d. A declaration that the WBAI Delegate Election will be unfair to plaintiffs, persons similarly situated to plaintiffs, and all other qualified voters, if the balloting is permanently closed on November 16, 2007 and the ballots of plaintiffs and all persons similarly situated are not counted, if the balloting is extended for all persons beyond November 16, 2007, or if the ballots cast by the large numbers of persons who are not qualified to vote are not cancelled;
e. A declaration that plaintiffs and all persons similarly situated to plaintiffs - in that they are members of Pacifica affiliated with WBAI as of August 31, 2007 who notified defendants by November 15, 2007 that they did not receive ballots for the 2007 WBAI Delegate Election - are qualified to vote in the election;
f. A declaration that all waivers of the membership requirements granted by the Waivers Committee of the WBAI-LSB after August 31, 2007 are ineffective to entitle the beneficiaries of those waivers to vote in the 2007 WBAI Delegate Election;
g. A declaration that all waivers of the membership requirements granted to persons who did not demonstrate an inability to pay $25 or contribute three hours of volunteer time to WBAI since September 1, 2006 are null and void;
h. A declaration identifying the persons who are WBAI Delegates, officers of the WBAI-LSB, and WBAI Station Representative directors.
i. An order directing PETERS and/or RATNER, within five (5) days of service upon them of a copy of such order, to send by first class mail replacement ballots to all qualified voters who notified defendants prior to November 15, 2007 that they did not receive a ballot in the U.S. Mail;
j. An order directing PETERS and/or RATNER to provide to all plaintiffs and persons similarly situated to plaintiffs, a replacement ballot and a reasonable opportunity to cast it, including clear and concise directions how to do so, and the statements of the candidates running in the 2007 WBAI Delegate Election;
k. An order directing PETERS and RATNER to disqualify the ballots of all persons granted waivers by the Waivers Committee of the WBAI-LSB after August 31, 2007;
l. An order directing PETERS and RATNER to disqualify the ballots of all persons granted waivers by the Waivers Committee of the WBAI-LSB who did not show that paying the minimum monetary contribution or volunteering at least three hours to the radio station between September 1, 2006 and August 31, 2007 would work a hardship on them;
m. An order directing that ten (10) business days after service of said order, that RATNER collect from the Post Office the ballots that have been returned by mail between November 19, 2007 and that time, that he check the PIN numbers associated with each ballot to determine if it was a replacement ballot issued to a qualified voter who notified defendants by November 15, 2007 that they had not received a ballot, and if so, that such ballot be integrated with the ballots in the box this Court ordered sealed on November 16, 2007, and that all such proper replacement ballots together with the ballots in the aforesaid sealed box be counted on that date under the supervision of the Court, and if such ballot is not a replacement ballot issued to a qualified voter who notified defendants by November 15, 2007 that they had not received a ballot, that such ballots be set aside, disqualified, and not counted.
n. An order directing defendants to provide plaintiffs with a list of the names and addresses of all persons who notified defendants by November 15, 2007 that they had not received ballots and the record showing the giving of such notice by such persons to defendants;
o. An order directing Pacifica Foundation to provide James Ross with a data file and/or other medium by which information may be compiled providing an alphabetical list of all members of the corporation qualified to vote in the 2007 WBAI Delegate Election segregated into two lists based upon the two classes of membership;
p. An order barring PACIFICA from seating on the board of directors of Pacifica Foundation any WBAI Station Representative Director elected at a WBAI Delegate Assembly wherein any WBAI Delegate whose term of office expired on or about December 1, 2007 is permitted to cast a vote;
q. An order barring WBAI from seating any WBAI Delegate whose term of office expired on or about December 1, 2007 on the WBAI-LSB or at the 2008 WBAI Delegate Assembly;
r. An order, in such detail or manner as the Court deems proper, requiring WBAI to broadcast at frequent intervals information about the remedies provided by any court order and information concerning the rights of all Members to receive a ballot and cast it in the 2007 WBAI Delegate Election;
s. The costs and disbursements of this proceeding;
t. A reasonable attorney's fee;
u. Any such other and further relief that to this Court seems just and proper.
Dated: Jamaica, New York
December 14, 2007
(Signed) Thomas J. Hillgardner, Esq.
Attorney for Plaintiffs
82-63 170th Street
Jamaica, New York 11432