Judge rejects request from Sauerbrey to delay case

January 08, 1995|By Michael James | Michael James,Sun Staff Writer Sun staff writer William F. Zorzi Jr. contributed to this article.

Ellen R. Sauerbrey's unprecedented gubernatorial election challenge must begin tomorrow as scheduled, not a day later as she had requested, despite a last-minute switch in her team of lawyers, a judge ruled yesterday.

The unusual weekend hearing in Anne Arundel County Circuit Court was ordered Friday after Mrs. Sauerbrey's lawyers, Lee T. Ellis and Richard J. Leon, abruptly asked to withdraw from the case because of differences with the Sauerbrey camp.

Judge Raymond G. Thieme Jr. allowed the two sides to part ways yesterday but flatly denied a request for more time by Mrs. Sauerbrey's new attorneys, who wanted an extra day to go over thousands of pages of case material.

"I recognize the time sensitivity of this case. . . . However, I would request an extra day," said Byron L. Warnken, a University of Baltimore law professor who joined Mrs. Sauerbrey's legal team Friday night.

But the judge extended no sympathy and said the case will begin on schedule. "The change of counsel is [Mrs. Sauerbrey's] choice," Judge Thieme said, refusing to delay the trial because her new attorneys "have arrived at the last hour." He also ordered Mrs. Sauerbrey's attorneys to turn over all evidence gathered to date -- including a list of "dead voters" who supposedly cast votes in the Nov. 8 election.

Afterward, Mr. Warnken said he did not believe the quality of Mrs. Sauerbrey's case has been compromised by the switch in attorneys or the judge's refusal to grant a delay. Mrs. Sauerbrey said in a statement Friday that the attorneys left after being "at great variance" with her and members of her team.

"The evidence has not gotten weaker or stronger because [Mr. Ellis and Mr. Leon] have left," Mr. Warnken said. "As for the ruling on the extra day, all that influences is how much sleep we'll be getting."

Mrs. Sauerbrey, a Republican, lost the election to Democratic Gov.-elect Parris N. Glendening by 5,993 votes out of 1.4 million cast. Her attempt to overturn the election hinges on a lawsuit she filed that alleges Mr. Glendening's victory was the result of errors, possible fraud and ineligible voters.

Mr. Glendening is scheduled to be inaugurated Jan. 18.

Deputy Attorney General Ralph S. Tyler III, who is representing various state election officials in the lawsuit, said at the hearing that Mrs. Sauerbrey's lawyers had not turned over their finalized lists of supposed fraudulent voters, despite many requests that they do so as part of the court discovery process.

"The persistent and heated request has been, 'Give us that list.' But that hasn't happened," Mr. Tyler said. "Where is the list? We would like it by today so that we can investigate."

Judge Thieme ordered Mrs. Sauerbrey's legal team to produce the records of contested votes by 5 p.m. yesterday. But as of 6 p.m., only a few items had been turned over, said Glendening attorney Bruce L. Marcus.

"We haven't received a lot of stuff at this point," Mr. Marcus said.

Attorneys for both sides were expected to be behind closed doors yesterday and today for depositions as the final stages of preparation are set for tomorrow's historic trial, the first in Maryland challenging a gubernatorial election.

Mrs. Sauerbrey and her running mate, Paul H. Rappaport, were being questioned in depositions last night, said Mr. Marcus, who characterized the line of questioning as "a general inquiry into some of the statements that have been made publicly and their support for them."

Most of the paperwork in question consists of scores of documents collected by a team of Sauerbrey investigators led by John M. Carbone, an attorney and election specialist from New Jersey. Chief among those documents are lists of voters who Mrs. Sauerbrey alleges were dead, in prison, or improperly registered to vote in the election. In her lawsuit, Mrs. Sauerbrey alleged that more than 50,000 potentially illegal votes were cast, primarily by people who moved but had not changed their voter registration as required.

In the past several days, Mrs. Sauerbrey's election challenge has been tarnished by voters who she claimed had died but who are alive. At least four such people said they voted, including two for her.

Mr. Carbone conceded yesterday that the number of contested votes is now much lower than 50,000, but said he was unable to provide an exact count. "The figures are constantly changing," he said.

Also at yesterday's hearing was Lynne A. Battaglia, U.S. attorney for Maryland, who attended to inquire about Sauerbrey investigators' use of the U.S. Postal Service's National Change of Address (NCOA) system as a way of verifying voter registration lists.

Based on NCOA information, Mrs. Sauerbrey's lawsuit claims that 40,183 residents of Baltimore City and Prince George's and Montgomery counties -- the only three of 24 jurisdictions in the state that Mr. Glendening carried -- either moved from or did not reside in their voting district at the time they voted.

Ms. Battaglia, who represents the postal service, said she was concerned that federal privacy laws may be violated if the NCOA information is used for anything other than mail delivery.

"These people filed the change of address form thinking that it would only be used for mailing purposes. It is now attempting to be used for litigation purposes," Ms. Battaglia said.

Ms. Battaglia sought a federal injunction late Friday night from U.S. District Senior Judge Edward S. Northrup limiting the use of names from the list in a public forum. Judge Northrup agreed to hear arguments for the injunction at his Baltimore home -- in the living room.

The federal judge, however, told Ms. Battaglia to take the matter before the state court hearing the case. Judge Thieme allowed the use of the information.

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