NEWFANE — A judge suspended the discovery process for three individuals accused of voter fraud in controversial school closure votes in the town of Windham last year.
Judge Michael Kainen made the decision regarding the process of exchanging information between parties about witnesses and evidence to be presented at trial during a hearing Tuesday morning in Windham County Superior Court, Civil Division. He is allowing an attorney representing three citizens accused of voting illegally, because they were not living in Windham at the time, to file a motion for summary judgement.
The defendants — Lisa Beshay, Alex Beshay and Christopher Strecker — are “non-residents” who all live in the same household in Peru, claim residency in Peru and supported an effort to keep the elementary school open, states the complaint filed by Erin Kehoe and Crystal Corriveau in November 2021.
A vote in September 2021 was held on whether to close the school and provide school choice for elementary students. The article passed by two votes, then a petition resulted in a revote Nov. 2 and it failed by three votes.
Attorney Merrill Bent, who represents the three individuals in the case, said her clients have opted to temporarily remove their names from the voter checklist in Windham “not because they don’t believe they have a right to vote but because they can’t return to their home” in the town until some time in 2023.
“And frankly, they would rather forfeit their right to vote anywhere than continue to have this rather invasive case against them,” Bent said, explaining how questions in discovery involve their personal circumstances and financial situations. “Part of the reason that they had to relocate temporarily is because of the mold remediation issue with their house, their ability to pay for that remediation.”
Bent said she does not believe the court has any jurisdiction in the case.
“My concern is that ... this appears to be a way to continue to delay this case,” said attorney Deborah Bucknam, who represents the plaintiffs. “I think the law is quite clear that the defendants withdrawing their names from the voter checklist does not make this case moot at all.”
Bucknam said the defendants say they can put their name on the checklist and believe they are eligible to vote in Windham, therefore the issue is not moot.
“This is quite frustrating because this was supposed to be an expeditious proceeding under the statute,” she said. “And this is, I believe, the third time the defendants have tried to be dismissed from this case. And as a result, there’s been a lot of delay.”
Bucknam argued that the defendants should provide documents in discovery while the issue is litigated. However, Bent said they are following the court’s recommendation to file a motion for summary judgment, referring to a decision issued by Judge Katherine Hayes on a motion to dismiss.
The plaintiffs are seeking for the November 2021 vote to be rendered void. Bucknam called issues related to whether the defendants were residents at the time and legally able to vote “relevant to that claim for relief.”
“We need that information from the defendants,” Bucknam said, noting the plaintiffs can object to requests made in discovery.
The town of Windham also is a defendant in the case. Town Attorney Bob Fisher said he has met with town officials and they have prepared various documents requested by the plaintiffs.
Fisher anticipates the town will make motions for summary judgement.
“We would most likely be renewing our argument, the town’s argument, as to mootness based on the procedures for removing any voter from the voter checklist,” he said. “Because even if you take everything to be true, once the town knew of that declaration of residency that the plaintiff’s counsel had set forth in the complaint, the town clerk set a Board of Civil Authority meeting at which the board voted to send challenge letters to attorney Bent’s clients. And as a result of that, there would be no way to have removed them from the voter checklist by the time of that second vote.”
Kainen said he would suspend discovery with respect to the Beshays and Strecker.