Undaunted, Eric Snyder plans to forge on, and seek emergency relief from the appellate courts after State Supreme Court Justice Richard Platkin tossed his challenge to the advocacy language on the casino referendum ballot. [Update: He changed his mind.]
He has a little problem though, the way I see it. The suit was simply filed too late. Even as Judge Platkin conceded in his decision that the Board of Elections snuck it onto their website [well, that's my characterization] four days after the deadline to sue, he noted:
But even if the law permitted the statute of limitations to be tolled during this period of delay and the 14-day period in which to bring suit began to run on August 23, 2013, the petition/complaint would still be untimely.Uh oh. Seems to me that's game/set/match. The state gets away with their deception on this technicality, in part because the language wasn't reported in the press until mid-September. However, to be honest, even if the law permitted the statute of limitations to be toiled until that time, Snyder still didn't file within 14 days.
So, quite unfortunately, the Court did not even consider the question of whether the language constitutes improper use of funds to advance government advocacy. That's the main substantive issue, and it's one which neither the Board nor the government officials involved have ever even attempted to dispute. The one substantive issue that Judge Platkin did rule on was the one involving Snyder's contention that the Board violated the Open Meetings law, and that's what he will base his appeal on.
“I was shocked that the judge dismissed the claim that the (Board of Elections) meeting was in secret when that claim wasn’t even in front of him....The board didn’t move to even dismiss that claim. So I’m going to seek an immediate appeal on that issue alone.” [Pressconnects]With all due respect to His Honor, I vehemently disagree with his decision that the "documentary evidence" of the July 29 public meeting of the Board of Elections shows that the language was discussed. As I feared in this post, he asserted that when it was discussed at that public meeting that there would be words added "to review the legislative purposes in the underlying statute," it was clear that that "clearly represented a description of the Purposes Language." (Except that I feared that the state would argue that. One of Snyder's points is that the judge dismissed his claim on those grounds even though the Board didn't move that he should.) I find Judge Platkin's assertion here to be especially specious (if I may use a judicial term myself) considering that this so-called "legislative purpose" (to promote job growth, increase aid to schools, and lower property taxes) is not even included in the actual legislation.
However, no matter how solid the legal arguments and the common sense behind Snyder's arguments may be (and we are a nation of laws and principles, not a nation of common sense, otherwise military-style assault weapons would not be permitted in the streets, the Ku Klux Klan would not be allowed to march down Main Street, and Governor Cuomo would not be allowed to advocate for his favored amendments inside the polling place), it is hard to see how any appeal is going to get past the fact that the suit was filed too late.
Having said that and as futile as it may be, the longer Snyder carries on, the longer the question is before the public and - hopefully - in the press. Because, if this audience in Syracuse last night is any indication, a fair and two-sided debate on the topic is good for the casino opponents. Unfortunately, once we get to November 5, the language that voters will see is anything but fair and is decidedly one-sided.