Opinion
Index No. 034755/2024
08-26-2024
LAWRENCE GARVEY, as Chair of the Rockland County Republican Committee, Lawrence Garvey individually as a qualified voter in the Town of Clarkstown, and: Darren Epstein Candidate Aggrieved Petitioners, v. LINDA ZEBROWSKI, MONIC A FERGUSON and EMILY KING, as Presiding Officers of the Clarkstown Democratic Committee, and: KEITH BRAUNFOTEL, Purported Democratic Candidate for Clarkstown Town Justice. Respondents, THE ROCKLAND COUNTY BOARD OF ELECTIONS Respondents, Foran Order Pursuant to Sections 16-100, 16-102, 4-106 and 16-116 of the Election Law, declaring invalid the Certificate of Nomination purporting to nominate Respondent- Candidate for the Public Office of Town Justice in the general election to be held on November 5, 2024 and Restraining the BOARD OF ELECTIONS from Printing and Placing the Name of Said Candidate Upon the Official Ballots of Such General Election.
Unpublished Opinion
DECISION AND ORDER MX#1 AND PETITION
HON. HAL B. GREENWALD, J.S.C.
The Court has read and or reviewed the following NYSCEF documents in reaching the within Decision and Order. NYSCEF Docs: 1-18.
Further counsel for the parties had the opportunity to conduct oral argument in Court on August 7, 2024, on the Petition and Order to Show Cause, and a certified copy of the transcript was received by the Court on August 13, 2024 and read/reviewed.
The instant proceeding was commenced by the filing of a Petition and Order to Show Cause on August 1, 2024. The Petitioners are LAWRENCE GARVEY (Garvey) and DARREN EPSTEIN (Candidate. Aggrieved). The Respondents are LINDA ZEBROWSKI, MONICA FERGUSON and EMILY KING (Respondents) as Presiding Officers of the Clarkstown Democratic Committee and KEITH BRAUNFOTEL (Candidate) the Purported Candidate for Clarkstown Town Justice and THE ROCKLAND COUNTY BOARD OF ELECTIONS (RCBOE). Petitioners are seeking an Order "Pursuant to Sections 16-100, 16-102, 4-106 and 16-116 of the Election Law, declaring invalid the Certificate of Nomination purporting to nominate Respondent-Candidate for the Public Office of Town Justice in the general election to be held on November 5, 2024, and Restraining the BOARD OF ELECTIONS from Printing and Placing the Name of Said Candidate Upon the Official Ballots of Such General Election. "
In simple terms the basis for the suit is the claim by petitioners that when the Democratic Committee of the Town of Clarkstown (DCTC) held a convention and nominated KEITH BRAUNFOTEL for the office of Town Justice on July 17, 2024, there was no such vacancy. (Emphasis added) Paragraph 7 subparagraphs a through h of the Petition (NYSCEF 1) sets forth the specific reasons why the Court should grant the Petition. Most of the aforesaid sub paragraphs are premised upon alleged violations of the Rules and Regulation of the DCTC and not the relevant Election Law statutes.
THE TIMELINE
THE RESIGNATION LETTER
By letter dated June 21, 2024, (resignation letter) Clarkstown Town Justice David M. Ascher notified the Town Clerk of Clarkstown (also the Chief Administrative Judge Hon. Joseph Zayas and the Clarkstown Town Supervisor George Hoehmann and others) that he was resigning asTown Justice "...effective immediately." (NYSCEF 11) Black's Law Dictionary, Special Deluxe Fifth Edition defines immediately as "Without interval of time, without delay, straightaway, or without any delay or lapse in time. Judge Ascher's resignation was effective June 21, 2024, and a vacancy was created. Unlike Montal v Koplen and Town of Ramapo 220 A.D.3d 824 (2nd Dept, 2023) where a third Town Justice seat was abolished by the Town, Judge Ascher's seat was a true vacancy of an existing position as Town Justice that could be filled at the next General Election. Upon delivery of a resignation of a proper officer, the resignation takes effect immediately and ipso facto creates vacancy in that office. Cassedy v Wilkins 137 Mise. 748 (1930); There is no provision requiring an acceptance of a resignation to make it effective, as it is complete when presented. See Gelson v New York 237 A.D. 889 (2nd Dept, 1933).
The governing statute as to resignations, Public Officers Law 31 states in relevant part:
McKinney's Public Officers Law § 31
§ 31. Resignations
Currentness
1. Public officers may resign their offices as follows:
g. Every town officer, to the town clerk',
2. Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the
effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing; ... (Emphasis added)
3. A resignation addressed to an officer shall be delivered to him at his place of business or filed in his office.
By reason of all the foregoing Judge Ascher's resignation as a Clarkstown Justice was effective June 21, 2024, immediately, when it was sent to the Town Clerk. Notwithstanding that, for some unexplained reason, the Clarkstown Town Clerk did not acknowledge receipt of Judge Ascher's resignation until an email acknowledgment dated July 2, 2024. There was no explanation offered as to the delay. In any event the subject resignation and resultant vacancy occurred on June 21, 2024, or July 2, 2024, well before the TCDC's meeting on July 17, 2024.
TIMELINE CONTINUED
There is no dispute that the Primary Elections took place on June 25, 2024.
On July 17, 2024, the DCTC met and nominated Keith Braunfotel as the DCTC candidate for Clarkstown Town Justice for the general election to be held on November 5, 2024. The relevant statute as to the timing of a party nomination is Election Law 6-116 which states:
McKinney's Election Law §6-116 § 6-116.
Party nominations; election to fill a vacancy
Currentness
A party nomination of a candidate for election to fill a vacancy in an elective office required to be filled at the next general election, occurring after seven days before the last day for circulating designating petitions or after the holding of the meeting or convention to nominate or designate candidates for such, shall be made, after the day of the primary election, by a majority vote of a quorum of the state committee if the vacancy occurs in an office to be filled by all voters of the state, and otherwise by a majority vote of a quorum of the members of a county committee or committees last elected in the political subdivision in which such vacancy is to be filled, or by a majority of such other committee as the rules of the party may provide. A certificate of nomination shall he filed as provided for herein.
The portions of Election Law 6-116 that are applicable to the case at hand are that the subject nomination was a party nomination for a position (Town Justice) that is required to be filled at the next general election, November 5, 2024. The subject nomination herein was made after a majority vote of a quorum of the members of the local political committee (DCTC). Lastly, there is no time requirement in Election Law 6-116 as to when the "certificate of nomination" shall be filed. That requirement is left to another section of the Election Law (see below Election Law 6-158(6)). Petitioners would have this Court believe that the DCTC nomination of Braunfotel on July 17, was premature. The Court differs. There was a proper resignation effective June 21, 2024, which resulted in a vacancy for the position of Town Justice, Town of Clarkstown for the general election set tor November 5, 2024. The filing of a certificate of nomination would have to be filed on or before 30 days after the Primary Election (June 25, 2024) or July 25, 2024. This requirement was met as shown below.
Even if the July 17, 2024, Democratic Town Committee meeting was premature, and the Court disagrees that it was, the key issue is when was the certificate of nomination filed. If the certificate of nomination had been filed prematurely, that would be a fatal error, (see Pierce v Breen 86 N.Y.2d 455 (1995). However, even where the timing of a nomination (not the filing of certificate of nomination) was premature, it has been found in Williams v McDonough 44 A.D.3d 1087 (3rd Dept, 2007) that the premature timing of the committee was found to "...be an inconsequential violation which does not raise the implication of fraud or require invalidation of the nomination ".
THE FILING OF THE CERTIFICATE OF NOMINATION
The relevant portion of Election Law 158(6) will be reviewed as follows:
Effective: December 31, 2023
McKinney's Election Law § 6-158
§ 6-158. Nominating and designating petitions and certificates, conventions; times for filing and holding
6. [Eff until Dec. 31, 2024, pursuant to L.2023, c. 474, § 18. See, also, subd. 6 below.] (a) A certificate of a party nomination made other than at the primary election for an office to be filled at the time of a general election shall be filed not later than thirty days after the June primary election, (b) except that a certificate of nomination for an office which becomes vacant after the seventh day preceding such primary election shall be filed not later than thirty days after the June primary election or ten days after the creation of such vacancy, whichever is later...
As stated above, the Preliminary Election was held on June 25, 2024, so the certificate of nomination had to be filed before July 25, 2024. The Clarkstown Town Clerk having acknowledged the resignation of Judge Ascher on July 2, 2024. Yet it took three (3) additional weeks, on July 23,2024, for the Clarkstown Town Clerk to file a certificate confirming the vacancy and the position which is to be filled at the next General Election to be held on November 5, 2024. (the Notice of Vacancy) to the RCBOE Election Commissioners. That left only July 24, 2024, for the date when the certificate of nomination for Braunfotel had to be filed with the RCBOE; And that is when it was filed as evidenced by the "Stamp" from the RCBOE dated July 24, 2024 (NYSCEF 15)
REMAINING ARGUMENTS CONCERN THE JULY 17, 2024, TCDC MEETING
The arguments put forth in the underlying Petition at paragraph 7 (a) through (h) have been successfully dealt with either by this Court or by the Respondents.
Subp. a: The nomination took place on July 17, 2024. The certificate confirming the vacancy (filed July 23, 2024) was required to be filed pursuant to Election Law 4-106 as a prerequisite to the filing of the certificate of nomination. (Filed July 24, 2024). The relevant elections laws were timely complied with.
Subpb: The nomination took place on July 17, 2024. As stated in the Notice of Vacancy (NYSCEF 14) the subject resignation was "...dated June 21, 2024, and received via email July 2, 2024). The subject vacancy was either June 21, 2024, or July 2, 2024.
The Court agrees with the respondents that the petitioners appear to have standing to challenge compliance with the relevant Election Law statutes concerning the certificate of nomination.
However, the petitioners may not have standing to challenge the itemized "objections" (paragraph 7 c-h) that relate to the inner working of the TCDC. (see Matter of Cox v Spoth 165 A.D.3d 1648 (41h Dept, 2018); Matter of Ciccotti v Havel 186 A.D.2d 979 (4th Dept, \992f Matter of Liepshutz vPahnateer, 112 A.D.2d 1098 (3rd Dept, 1985).
In Matter of Nicolai v Kellerher 45 A.D.3d 960 (3rd Dept, 2007) the issues concerned the Conservative Party nomination for election to the Supreme Court in the 9th Judicial District of New York. The Appellate Court affirmed the trial court's decision to dismiss the petition on the grounds that the petitioners did not have standing. One petitioner was a Democratic Party candidate for the same position as respondents. Among the many points made by the 3rd Department in finding the petitioners did not have standing to challenge the Conservative Party's nomination were:
"A candidate of one party has no standing to challenge the internal affairs and operating functions of another political party in its designation of candidates";
"... where the challenge is directed to the manner in or methods by which a given party committee votes on or designates a particular candidate, a nonparty candidate will not be deemed aggrieved, as he or she has no interest in whether the formalities of that process have been followed"
"...in the absence of any claim that the nomination that resulted does not represent the will of the party that conducted the convention.
The Court found that the petitioner did not have standing to challenge the Conservative party's method of nominating candidates and dismissed the petition.
In Matter of Gross v Hoblock 6 A.D.3d 933 (3rd Dept, 2004) a petitioner who was a non-party member challenged a designating petition of another party's candidate based upon the failure to file a Wilson-Pakula authorization. One issue was standing, and the Court holding was "...whether the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates or, rather, to a legislatively mandated requirement of the Election Law." If the challenge is to a requirement of Election Law there would be standing, but not "...where the challenge is directed to the manner in or methods by which a given party committee votes on or designates a particular candidate..." The Wilson-Pakula challenge is s fatal defect under Election law and gives standing to that portion of the challenge relating to Election law not how the other party designates a candidate.
Lastly, in Koppell v Garcia 275 A.D.2d 587 (3rd Dept, 2000) similarly, nonparty members who challenge the inner workings of the other political party, "...without a claim that the designation did not represent the will of the issuing party committee", do not have standing.
As a consequence of all the foregoing, the allegations continued in the Petition at said paragraph 7 (a- h) have all been successfully refuted by the Respondents' Opposition with supporting Exhibits caselaw and statutes.
By reason of all the foregoing it is
ORDERED, that the Petitioners' Order to Show Cause to Invalidate the Certificate of Nomination filed with the Rockland County Board of Elections designating KEITH BRAUNFOTEL as a candidate for the Public Office of Town Justice for the Town of Clarkstown in the General Election to be held on November 5, 2024, is DENIED; and it is further, ORDERED, that the Petitioners' Order to Show Cause, which seeks an Order enjoining, restraining, and prohibiting ROCKLAND COUNTY BOARD OF ELECTIONS from printing and placing the name of said Respondent KEITH BRAUNFOTEL on the official ballots to be used at the General Election to be held on November 5, 2024, is DENIED; and it is further
ORDERED that the Verified Petition filed August 1, 2024, on behalf of the Petitioners is DISMISSED WITH PREJUDICE; and it is further, ORDERED, that any relief not specifically granted herein is DENIED.
The foregoing constitutes the Decision and Order of the Court.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that where the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.