Judge Napierski raises issues but fails to halt Dem caucus

The Enterprise — Elizabeth Floyd Mair 
Courthouse steps: Guilderland supervisor and attorney Peter Barber, foreground, leaves the federal courthouse in Albany after a hearing in which he represented Gregory Wier in a lawsuit seeking to stop a caucus from being held on July 26. At right middleground is another defendant, Bryan Clenahan. In the background are two attorneys at left and, at right, Jacob Crawford, chairman of the Guilderland Democratic Committee. 

ALBANY — Federal court Judge Glenn T. Suddaby ruled on Tuesday at about 4:30 p.m. that the Guilderland Democratic caucus can go on as planned Thursday night, but with a number of conditions intended to ensure voter access for all.

Guilderland town Justice Christine Napierski along with her father and law-firm partner, Eugene, had filed a suit in federal court on July 19 to stop the Democratic caucus scheduled for July 26. Napierski was appointed to the post in April and wants to keep it although the Guilderland Democratic Committee has backed Bryan Clenahan.

Clenahan was one of 14 candidates who applied to fill the post after Richard Sherwood resigned, having been arrested in February on felony fraud charges to which he later pleaded guilty. The town board unanimously chose Napierski.

A four-and-a-half-hour hearing Monday afternoon sought a temporary injunction to stop the Thursday night caucus at Tawasentha Park. The hearing ended long after regular courthouse hours, at 6:30 p.m., without a decision.

The suit questions the Democrats’ choice of using a caucus to select candidates and alleges that Democrats told Christine Napierski that she would never be elected to public office in Guilderland in the future if she did not withdraw her candidacy.

The Napierskis’ complaint also says that Tawasentha Park’s large pavilion does not comply with the Americans with Disabilities Act and will be difficult, if not impossible, to access for those who are frail or have limited mobility, including Eugene Napierski, who suffers from a neurological disorder.

The conditions imposed by the judge on Tuesday include that monitors will be placed at the entrance to the park and that the caucus will not begin until everyone is at the pavilion; that the parking lot adjacent to the large pavilion, where the caucus will be held, will be reserved for those with disabilities and that “any person who feels unsafe” may cast his vote from the vehicle.

Further, Suddaby stipulates that a beveled device must be installed at the bathroom threshold so wheelchairs may enter, and a portable handicapped-accessible bathroom must be provided.

Monitors throughout the park must ensure that all would-be voters are at the pavilion before the caucus begins and golf carts or other shuttle vehicles could be used to help struggling walkers; and, finally, a monitor must keep the walkway “open and free of obstruction to ensure that all attending can vote safely, including managing any possible overflow of the crowd to outside the Large Pavilion,” the judge ruled.

Suddaby ruled only on the access issue raised by the Napierskis’ suit, without addressing their claims that the Democrats attempted to coerce Christine Napierski to back Clenahan, or that the Democrats exploited the caucus method.

Ultimatums from party higher-ups

On the stand during Monday’s hearing, Christine Napierski outlined orders and ultimatums she said she had received from various members of the Democratic Party, some of whom were never named.

Napierski said that, after she had applied for the judgeship, following sherwood’s resignation, and been interviewed and was waiting to hear about the decision, she ran into Peter Barber, Guilderland’s supervisor, at Stuyvesant Plaza. He told her, she said, that she would be offered the position, but asked her to keep it confidential until the board could notify the other candidates that they would not be given the job.

Before any public announcement was made, she began shadowing the two other judges “and preparing to be a judge,” she said.

She had let the Guilderland Democratic Committee know from the start that she was very interested in being the candidate in November’s election, she testified.

She had sent Jacob Crawford, the committee’s chairman, an email to that effect, she said on the stand. The two of them had met at Starbucks in Guilderland, where she gave him her résumé, and they talked about her experience. It was an informal interview, she said.

Later she was told to make a formal application to the committee, she said, so she sent the committee a “lengthy list” of her achievements and went in for an interview on May 10 at Tesoros Restaurant in Guilderland. “It was very informal,” she said on the stand. The event “appeared to be quite social,” she said.

At that interview, she was asked questions about other campaigns she had run and her experience with criminal law, but not really geared toward learning about her professional experience, she said.

About a week later, she said, she got a call from Crawford saying that the committee would be endorsing Clenahan. She was quite shocked, she recalled in the courtroom. She told him she would still run for the post.

In response to allegations that Eugene Napierski made in a paid Enterprise ad that his daughter was told, if she refused to support Clenahan’s nomination “her career as a judge would be over,” Crawford had told The Enterprise, “That statement is not accurate plain and simple.”

“I was told that that would make people very angry,” Christine Napierski testified. “They would not support me in my candidacy or any other candidacy if I opposed the party and ran against Clenahan.”

She noted, later, on the stand, that Barber had encouraged her to attend the Conservative Party dinner, because, she described him as saying, “We need the Conservative Party endorsement.” Barber was being helpful at that point, she said, noting that he had come to her chambers one night before court was in session to talk about it.

It was the morning after the Conservative Party dinner, she said, that Crawford telephoned her to let her know that Clenahan was the pick.

Napierski said she called an “old family friend who is very active in the Albany County Democratic Party.” She never named this friend, and the attorneys for the other side never asked who he was.

“This gentleman told me,” Napierski said, “I was done, it was over, there was no way forward for me.” He told her that she must write a letter endorsing Clenahan and withdraw her candidacy.

She then contacted another committee member because, she said, she was upset about what the family friend had said on the phone.

This second person told her, she testified, that the message had come from Crawford. The second committee member told Napierski he was proud of the other member for being so forthright about stating Crawford’s position. He was very sorry, the second man said, “but it was not going to change.”

Napierski said that her sister, Michelle Napierski-Prancl, had written a letter to The Altamont Enterprise in June, saying that a quote from Peter Barber in another Enterprise article belittled her sister’s qualifications.

After her sister’s letter was published, Christine Napierski received a call, she said in court, saying that the letter had made the party upset, and they had been working on a campaign to have Clenahan become judge next year — “when Bailey retires,” she said, referring to Guilderland judge John Bailey  — but that now Clenahan’s campaign was “very angry” at her and that “that deal was never going to happen.”

Guilderland has three judges, all Democrats: Napierski, Bailey, and Denise Randall — Clenahan’s mother-in-law. Clenahan has worked for the Randall Law Firm, owned by Denise Randall and her husband, Robert.

Napierski added, during her testimony, referring to the Civil Service Employees’ Association, “I was told CSEA was going to march against me and crush me.”

Caucuses lack oversight

While state Election Law allows for either holding a primary or holding a caucus as a way of selecting a party’s candidate, the only party in Guilderland that holds a caucus is the Democratic Party.

The Napierskis’ complaint argues that the Guilderland Democratic Committee has “exploited the caucus method to ensure that the candidate it has hand-selected coasts through to nomination without any meaningful opposition or challenges.”

The planned location — Tawasentha Park’s large pavilion — has a maximum capacity of 200, whereas the town has over 9,000 registered Democratic voters; in other words, it holds about 2.1 percent of the total registered Democrats in the town, the complaint says.

Andrew S. Holland, attorney for the plaintiffs, argued in court that the Democratic committee actually expects no more than 100 participants, since it rented the pavilion for $150. The rental fee is $150 for that smaller number of people, and $210 for a crowd of more that 100. Holland compared this to the roughly 1,700 Guilderland Democrats he said took part in a 2015 primary in which Daniel Egan challenged Daniel McCoy for the post of county executive.

Holland told The Enterprise on Tuesday that he chose this primary because it was relatively low-interest, and he wanted to avoid the more inflated numbers that would have voted in, say, past presidential primaries.

Republican Commissioner of the Albany County Board of Elections Rachel Bledi testified that no other parties in Guilderland decide their candidates by caucus; all others gather signatures on petitions and, if there is more than one candidate, hold a primary.

She said some of the smaller towns in Albany County hold caucuses, mentioning specifically the Hilltowns.

Bledi also said the board of elections had no oversight over caucuses, but just received the results.

In the case of a primary, Bledi said, the board of elections chooses the polling places, and oversees every aspect of the election. It keeps control of the voting machines and absentee ballots; it trains and sometimes uses poll inspectors; it counts the votes.

Asked by Holland if the process in place for primary elections is to ensure the integrity of the votes cast, Bledi said yes.

The Napierskis’ complaint points out that primaries allow for secret ballots, whereas voting at a caucus is public. Their attorney argued that open balloting promotes conformity to the the party line and that going against the committee could bring retaliation at the time of the next election.

Committee members come up for reelection every two years, committee Chairman Crawford said in response to a question from Holland.

Accessibility issues  

Witness for the plaintiffs Richard Akullian said he has been a registered voter in Guilderland for 34 years and that he has voted in all local elections, except four years ago: he had one leg amputated that October, and was unable to vote in November.

Akullian’s regular voting place, he said, is the McKownville firehouse, a one-story building accessible to the handicapped.

Akullian has one prosthetic leg and uses a cane. He can’t stand too long in one place, and is able to walk on uneven ground only with “great difficulty,” he said. He once tripped over a ledge angled up a quarter-inch and “almost put my head through a plate-glass window,” he told the courtroom.

He cannot drive at night, and his wife does not drive and never has, he said.

If a caucus were to be held in Tawasentha Park, would he be able to take part, Holland, an attorney for the Napierskis, asked him.

“No, they might as well have it on the moon,” Akullian replied.

Eugene Napierski, who is also a registered Democrat in Guilderland, said he will have difficulty navigating Tawasentha Park to get to the venue to vote for his daughter.

Napierski testified that he has a neurological disorder known as progressive supranuclear palsy and suffers from mobility problems including “freezing of gait” and issues with balance. He continues to drive, he told the courtroom; after he arrives, he holds onto the luggage rack at the top of his SUV and pulls himself to the back of the vehicle to take out his 42-pound collapsible motorized scooter.

The pathway leading to the pavilion from the parking lot is at a “treacherous” pitch, Napierski said, with no handrail. The area around the pavilion is paved but has “all kinds of rough surfaces,” Napierski testified. Asked by his attorney if he has fallen before while using his scooter, and if uneven surfaces contributed, Napierski said yes.

Napierski joked on the stand, “Maybe I’ll get there the night before and sleep over, so I can get one of the two available handicapped spots.”

The caucus will begin selecting a chairman to head the caucus and will do other business starting at 6 p.m. and then will hold a vote soon after that, the courtroom heard, so any Democrats wishing to vote must be there in person. There will be no absentee ballots, military ballots, or other polling places, and no other times of day when votes can be cast.

The courtroom heard from Democratic Chairman Crawford that no decision has been made about how the vote will be taken at the caucus — whether by standing, raising hands, or by a “voice vote,” an estimate of the volume of voices on either side.

Crawford testified that the caucus would wait for any voters currently signing in at the pavilion, but that there had been no provision made for, for instance, would-be voters to be able to call a telephone number to say that they were held up in traffic in another part of the park.

The court heard from architect Christopher Dennis that there are several problems with accessibility around the large pavilion: deficiencies in the bathroom facilities, parking lot, and ramps to the pavilion, but no problems within the pavilion itself.

There are 30 parking spots at the lot adjacent to the pavilion, with just one marked for use by the handicapped, the complaint says. There is no marked unloading zone, for people with assistive devices to unload, Dennis told the court

The pathway leading from the parking lot to the pavilion itself is sloped at a greater pitch than allowed by ADA requirements and has no handrail, Dennis said in court. Entering the bathroom outside the pavilion requires navigating, first, a pitch that is greater than allowed by ADA regulations, with no handrail, and then a one-inch-high vertical threshold where the maximum allowed would be a quarter-inch, he testified.

There needs to be a bevel to any vertical threshold higher than a quarter-inch, Dennis testified.

Much of the loop through the park is one-way and one-lane. If the adjacent parking lot were full, or if traffic through the park were to be slow and heavy or a vehicle were to break down, one of the only options would be to park further away and then walk across unpaved, natural terrain such as the playground area to get to the pavilion, the court heard in testimony by Christine Napierski and Gregory Wier.

Wier is the former head of Guilderland’s parks and recreation department, and in April was appointed the town’s highway superintendent; he is the committee’s choice for Democratic candidate for highway superintendent in the upcoming caucus. He is also a defendant in this suit.

The only other way to access the pavilion from a different part of the park would be by traveling the loop roadway, which is, for the most part, steeply sloped, and which has no shoulders or sidewalks anywhere, Wier confirmed.

Wier’s response to the complaint says that many organizations serving the disabled have held events at the large pavilion. It lists as “frequent and regular” visitors “clients of Capital District Center for Disabilities, Wildwood Schools, Living Resources, Brain Injury Awareness, Albany Med Kids, and families with disabled adults.”

The Enterprise was unable to reach these organizations and disability advocates before press time to confirm whether they consider the park accessible.  

Town supervisor in court as attorney

Supervisor Barber took part in the hearing as an attorney, representing Wier. In his closing statement, Barber called the lawsuit “borderline frivolous.”

Barber told the court, “What irritates me most about this case is we are less than 72 hours before the start of this caucus.”

He said that the Napierskis have known about the committee’s choice of Clenahan for more than a month-and-a-half and that Christine Napierski has been campaigning to have people come to the caucus on July 26.

He said that defendants Clenahan and Wier have also been campaigning — “playing by the rules” and would be harmed by a change in the planned caucus at this late date.

Attorney for the plaintiffs Holland — an associate from the firm of Napierski, VanDenburgh, Napierski & O’Connor — addressed this issue in court, saying that the town is obligated to post public notice of the caucus just 10 days before. For that reason, he said, it was necessary to wait until after notice had been posted.

Holland told The Enterprise on Tuesday, “You need to have something to sue about. If we were to bring the action too early, they would argue that there was no caucus to sue over.”

Barber told The Enterprise after the hearing that town officials were served with papers on Friday evening and needed to prepare from that point for Monday’s hearing. He said he could not reach the town’s attorney, James Melita, right away on Friday night and decided to work with Wier himself to prepare a response, since Melita has young children and Barber did not want to “ruin his weekend.”

Barber added in an email that he has extensive experience in handling claims of constitutional violations in federal court. He wrote that he is glad his days of working on litigation are mostly behind him. But, he said, “I don’t mind coming out of retirement on rare occasions to protect the interests of a friend and also defend a town park in the same proceeding.”

Wier’s response to the complaint says that the town plans to implement changes including the following, for the caucus, in response to the complaint:  

— The town has already added an additional handicapped parking space, with a sign, as suggested by the plaintiff, the response says;

— The town will reserve the entire 30-car lot adjacent to the large pavilion for handicapped people and drop-offs;

— The town will place a sandwich board at the entrance to the large pavilion’s parking lot, restricting usage to vehicles with handicapped stickers or drop-offs;

— The town will install an additional temporary ADA-compliant bathroom a day or two before the scheduled event;

— The town will allow the Democratic committee, at its cost, to install a tent adjacent to the large pavilion; and

— Town police have been notified to direct traffic into the park and work with volunteers to direct patrons to additional parking spaces.

Barber said on Tuesday that the town also plans to paint in hatching for an area for unloading assistive devices. The work would have been done Monday, he said, if not for the rain.

Named in the suit were, besides the Guilderland Democratic Committee, the committee’s chairman, Jacob Crawford; Chairman of the Albany County Democratic Committee Jack Flynn; Democratic and Republican commissioners of the Albany County Board of Elections Matthew Clyne and Rachel Bledi; Bryan Clenahan, the Guilderland committee’s choice for Democratic justice candidate in November; and Gregory Wier, the Guilderland committee’s choice for Guilderland Town Highway Superintendent.

Republican chairman weighs in

Napierski wrote a letter to The Enterprise on July 12 stating that her driver’s license had been suspended for several months after she failed to address a speeding ticket received in November. Her license was suspended in March and reinstated in June.

Her father told The Enterprise that she did not drive while her license was suspended, but got rides from relatives. Napierski herself did not answer the question of whether she had driven when her license was suspended.

Guilderland Republican Committee Chairman Douglas Breakell was asked by The Enterprise if he thought that the reason the Democrats were backing Clenahan instead of Napierski was fear that, if news of her scofflaw came out, she would not be able to win against the Republican candidate, attorney Stephen Chesley.

Breakell said he thought it was “nasty politics,” and said that it was especially nasty, “especially with why we’re having to replace a sitting judge.”

He said he thought Napierski was “fully qualified,” as is Clenahan, but said that Chesley is a “great candidate” and he looks forward to voters learning more about him as the campaign moves forward.

One reason Chesley was selected, Breakell said, was his approach to problems related to drug addiction; his approach, Breakell said, involves focusing on rehabilitation, rather than incarceration.


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