16 November 2007 - Cohen et al Complaint Against Pacifica

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Index No.
----x

VERIFIED COMPLAINT

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.

-------------------------------------------------------------------x Plaintiffs MITCHEL COHEN, ROBERT GOLDBERG, ALEX STEINBERG, PATTY HEFFLEY, FRANK LeFEVER, JAMES ROSS, GAIL BLASIE, LINDA ZISES and SIDNEY SMITH, as and for a complaint in this action, allege as follows:

OVERVIEW

1. This is an action for a declaratory judgment and injunctive relief brought by the plaintiffs, who are qualified voters who have been denied ballots in an election for Delegates to elect directors of a nonprofit corporation, against the nonprofit corporation, its appointed National Elections Supervisor, and its Local Elections Supervisor, and seeking a delay of the closing of voting for qualified voters who have not received ballots and the counting of ballots in the election until plaintiffs receive ballots and are afforded a reasonable opportunity to cast them.

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.

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 Local Station Board.

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 Local Station Board.

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 Local Station Board and is a candidate in the current 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, 10 th 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, and, upon information and belief, he will be physically present in the State of New York, County of New York, on November 17, 2007.

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 election of Delegates by the WBAI Membership.

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,” and accordingly are qualified to vote in the WBAI Delegate election.

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,” and accordingly are qualified to vote in the WBAI Delegate election.

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 election of Delegates by the Membership of WBAI, which Delegates will be seated in December as members of the WBAI Local Station Board, 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. WBAI is currently conducting an election of WBAI Delegates to be seated in December 2007 who will serve for three years on the WBAI Local Station Board and who will meet in January 2008, together with the WBAI Delegates elected in 2006, to elect four (4) Directors to represent the WBAI membership on the Pacifica Foundation Board of Directors. Half the Delegate seats 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.

22. The Pacifica bylaws require that ballots for WBAI Delegate elections be mailed to qualified voters on October 15 th and be returned by November 15th.

23. By November 15, 2007, plaintiffs requested replacement ballots from defendants.

24. As of November 16, 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 Local Station Board that he and PETERS would collect the ballots from the Post Office on November 17, 2007, and that they will count the ballots on that same day.

26. In the aforesaid memo, RATNER stated that qualified voters who have not received ballots may come in person to WBAI on Friday, November 16, 2007, between Noon and Midnight, and that they will be given provisional ballots that they may cast at that time.

27. Upon information and belief, many other qualified voters besides the plaintiffs have received neither original ballots nor replacement ballots, and the aforesaid memo has not been distributed in a manner calculated to give all qualified voters who have not received ballots actual or sufficient notice of how they can obtain provisional ballots so that they can cast a ballot in the WBAI Delegate election.

28. By requiring qualified voters who have not received a ballot to appear at 120 Wall Street, 10 th Floor, New York, New York 10005 on Friday, November 16, 2007 if they desire to cast a ballot, PACIFICA, PETERS and RATNER are placing a significant hardship and additional condition for the exercise of their voting rights on all qualified voters who have not received a ballot, such hardship and condition that was not imposed on qualified voters who received a ballot in the U.S. Mail.

29. Upon information and belief, the procedure for issuing provisional ballots is that either the National Elections Supervisor or the Local Elections Supervisor checks 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.

30. Plaintiffs are personally aware of at least 30 WBAI Listener-Sponsor Members and at least 25 WBAI Staff Members who have not received their ballots and who either do not know that they can obtain provisional ballots and vote in person at WBAI today, or who are unable on such short notice to go to WBAI offices at 120 Wall Street, New York, New York today in order to vote due to many reasons, including handicaps, other employment, long distances that must be traveled, etc.

31. The WBAI membership mailing list that was supplied to the National Elections Supervisor in order to mail the ballots is maintained by and under the control of WBAI staff members 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 in control of the mailing list 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 election.

32. If such a large number of qualified voters are disenfranchised in this election, it is quite likely that the outcome of the 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 Local Station Board 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 others known to them who have not received ballots are able to vote, then it is quite likely that majority control of the WBAI Local Station Board and the Pacifica Board of Directors will change.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

a. A declaration that the election as conducted and/or supervised by PACIFICA, PETERS, and RATNER violates PACIFICA’s bylaws;

b. A declaration that if the opening and counting of ballots is allowed to go forward notwithstanding the failure to provide ballots to staff and listener members entitled to vote and other violations of the PACIFICA bylaws, the election will be unfair to plaintiffs and all other qualified voters who will be disenfranchised if the balloting is permanently closed on November 16, 2007 and the ballots are counted on November 17, 2007;

c. An order directing defendants to provide plaintiffs with a list of the names and addresses of all qualified voters who notified them that they did not receive ballots;

d. An order directing PETERS and/or RATNER, within five (5) days of service upon them of a copy of such order, to (1) send by U.S. Express Mail replacement ballots to all qualified voters who notified PACIFICA, PETERS or RATNER prior to November 15, 2007 that they did not receive a ballot in the U.S. Mail; (2) accept and integrate such replacement ballots into all of the other ballots received prior to the “Election Close Date” and to count all such ballots cast and that are received by them within fifteen (15) days of service upon them of said order;

e. An order directing that the ballots that have been returned by qualified voters by mail by November 15, 2007 be collected from the Post Office on November 17, 2007 and placed in a securely taped and sealed box with three signatures across the tape including the signatures of PETERS or RATNER, or both of them, and that said box shall
be deposited with this Court for safekeeping by 10:00 A.M. on Monday, November 19, 2007.

f. An order directing that on the fifteenth day after service of said order, or the first regular business day thereafter, that the replacement ballots that have been returned by mail be collected from the Post Office, and that the PIN numbers associated with the replacement ballots that have been returned by mail be checked to ascertain whether they are replacement ballots requested before November 15, 2007 by qualified voters, and that were express mailed to the qualified voters who notified defendants that they did not receive a ballot, and if so, that they be integrated with the ballots deposited with the Court for safekeeping, and that all such proper replacement ballots together with the ballots previously deposited with this Court be counted on that date under the supervision of the Court, and if not, that they be set aside and not be counted.

g. The costs and disbursements of this proceeding;

h. A reasonable attorney's fee; and

i. Any such other and further relief that to this Court seems just and proper.

Date: Jamaica, New York
November 16, 2007

Signed: Thomas J. Hillgardner, Esq.
Attorney for Plaintiffs