Opinion
903484-20
05-06-2020
In the Matter of the Application of Ola HAWATMEH, candidate aggrieved, Petitioner, v. The NEW YORK STATE BOARD OF ELECTIONS, Peter Kosinski, Andrew Spano and Douglas Kellner, Commissioners Constituting the Board, and James Goblet, Benjamin Cooper and Michael Marmorato, Objectors, Respondents.
Joseph T. Burns, Esq., Attorney for James Goblet, Benjamin Cooper and Michael Marmorato, 1811 Northwood Drive, Williamsville, New York 14221 Sinnreich Kosakoff & Messina, LLP, Attorneys for Petitioner (John Ciampoli, of counsel), 267 Carleton Avenue, Suite 301, Central Islip, New York 11722 Kimberly Galvin, Co-Counsel New York State Board of Elections, Attorney for New York State Board of Elections and its Commissioners, 40 North Pearl Street, 5th Floor, Albany, New York 12207
Joseph T. Burns, Esq., Attorney for James Goblet, Benjamin Cooper and Michael Marmorato, 1811 Northwood Drive, Williamsville, New York 14221
Sinnreich Kosakoff & Messina, LLP, Attorneys for Petitioner (John Ciampoli, of counsel), 267 Carleton Avenue, Suite 301, Central Islip, New York 11722
Kimberly Galvin, Co-Counsel New York State Board of Elections, Attorney for New York State Board of Elections and its Commissioners, 40 North Pearl Street, 5th Floor, Albany, New York 12207
Richard M. Platkin, J. Petitioner Ola Hawatmeh brings this special proceeding pursuant to Election Law § 16-102 (1), CPLR article 78 and CPLR 3001, seeking an order validating her designation as a candidate of the Conservative Party for the public office of member of the United States House of Representatives, 19th Congressional District of New York ("Office"). Respondents James Goblet, Benjamin Cooper and Michael Marmorato, who filed objections to petitioner's designating petition, oppose the requested relief. Respondent New York State Board of Elections ("SBOE") has appeared in response to the Petition but takes no position on the merits.
BACKGROUND
On March 14, 2020, Governor Andrew M. Cuomo responded to a global pandemic by altering the requirements for candidates to qualify for New York's June 23, 2020 primary ballot. As is relevant here, the Governor modified the application of Election Law article 6, which governs the designation of candidates for public office, by (1) reducing the number of signatures required to obtain ballot access and (2) suspending the collection of signatures as of 5 p.m. on March 17, 2020 (see Executive Order [Cuomo] No. 202.2 ["EO 202.2"] ). Prior to the Governor's order, candidates had until April 2, 2020 to collect signatures and file their designating petitions (see Election Law § 6-158 [1] ).
On March 18, 2020, the Legislature enacted, and the Governor approved, a law requiring candidates to file their designating petitions no later than March 20, 2020 (see L 2020, ch 24 ["Chapter 24"], § 1). Chapter 24 further provided that "the political calendar with respect to objections, acceptances, authorizations, declinations, substitutions and the last day to commence an election law article 16 proceeding shall be adjusted accordingly" (id. ).
Petitioner alleges that a petition designating her as a Conservative Party candidate for the Office was timely filed with the SBOE (see NYSCEF Doc Nos. 1, 5 ["Petition"], ¶ 8) and that the petition is "proper, sufficient and otherwise compliant with the Election Law" (id. , ¶ 10). Respondents James Goblet, Benjamin Cooper and Michael Marmorato (collectively, "Objectors") filed general and specific objections to the designating petition (see id. , ¶ 12).
On April 27, 2020, the SBOE determined that the designating petition is invalid because petitioner failed to file a certificate of acceptance by March 24, 2020 (see id. , ¶ 13), the fourth day following the new deadline for the filing of petitions (see Election Law § 6-158 [2] ; see also NYSCEF Doc No. 11). Petitioner explains that her certificate of acceptance would have been timely under the original political calendar published by the SBOE (see Petition, ¶ 21), and her late acceptance was "occasioned by a last minute change in the statute by the Legislature which significantly shortened the time within which to file petitions, authorizations and acceptances" (id. , ¶ 22).
Petitioner further alleges that, "[d]uring the relevant time, [she] was absent from New York getting Medical treatment in St. Louis" (id. , ¶ 23). "Petitioner did return to New York and did file an acceptance when she was belatedly informed of the new filing schedule that had been enacted just days earlier, and which had not been published by the [SBOE] on [its] web site until after the fact" (id. , ¶ 24). Petitioner maintains that her failure to timely accept the designation "was directly related to the current pandemic and the revision of statute that followed. It is no fault of the Petitioner" (id. , ¶ 26).
According to petitioner, "in light of the pandemic and related circumstances, the Courts of this state have validated late filings under similar circumstances" (id. , ¶ 27). Petitioner further alleges that the Petition implicates the constitutionality of Chapter 24, insofar as the new statute operates to deprive "Petitioner of her rights to free speech and association under the New York State Constitution" (id. , ¶¶ 28-29).
Petitioner commenced the instant validation proceeding on April 30, 2020, the last day to do so (see Election Law § 16-102 [2] ), and the Petition was made returnable on May 4, 2020. The SBOE responded to the Petition by producing the pertinent election records. The Objectors appeared through counsel on the return of the Petition to orally oppose the application on the ground that petitioner's failure to timely file her certificate of acceptance constitutes a fatal defect.
At the conclusion of oral argument, and with the consent of all counsel, the Court granted petitioner leave to submit: (1) an affidavit amplifying the allegations of paragraphs 22 and 23 of the Petition; and (2) case law supporting the requested relief. These submissions were filed on or about May 5, 2020, and this Decision, Order & Judgment follows.
The affirmation of petitioner's counsel includes legal argument and a new request for relief (see NYSCEF Doc No. 20, ¶¶ 8-30). As the Court did not authorize additional briefing or provide the Objectors with an opportunity to respond, the Court declines to consider the affirmation of counsel, except as a vehicle for presenting the case authority discussed at oral argument (see id. , ¶¶ 3-4).
ANALYSIS
A. Untimeliness of Petitioner's Filing
Election Law § 6-158 (1) provides, in relevant part, that "[a] designating petition shall be filed ... not later than the twelfth Thursday preceding the primary election." "A certificate of acceptance ... of a designation shall be filed not later than the fourth day after the last day to file such designation" (id. , [2] ).
Thus, the political calendar for 2020 originally contemplated that designating petitions for the June 23, 2020 primary election would be filed by April 2, 2020, and certificates evidencing the acceptance of such designations would be filed by April 6, 2020.
As a result of the modifications and amendments of the Election Law effected by EO 202.2 and Chapter 24, the deadline for filing designating petitions was accelerated to March 20, 2020, thereby making March 24, 2020 the last day to file a certificate of acceptance.
The record shows that a petition purporting to designate petitioner as a Conservative Party candidate for the Office timely was filed with the SBOE on March 20, 2020 (see NYSCEF Doc No. 8), and the Conservative Party timely authorized petitioner's candidacy on March 23, 2020 (see NYSCEF Doc No. 9; see also Election Law § 6-120 [3] ).
Petitioner then accepted the designation by executing an acknowledged certificate of acceptance ("Certificate") on March 24, 2020 (see NYSCEF Doc No. 10). The Certificate was mailed for overnight delivery via Priority Mail Express on March 25, 2020 and was received by the SBOE on March 26, 2020 (see id. ).
Election Law § 6-158 (2), as amended and modified in response to the COVID-19 emergency, required petitioner to file her Certificate by March 24, 2020. Petitioner did, in fact, execute the Certificate on March 24, 2020, but it was not mailed to the SBOE until March 25, 2020. Further, since the Certificate was not "sent by mail in an envelope postmarked prior to midnight of the last day of filing," petitioner cannot avail herself of the statutory provision that deems papers to be "timely filed ... if sent by mail or overnight delivery service ... and received no later than two business days after the last day to file" ( Election Law § 1-106 [1] ).
The Court therefore concludes that the Certificate was not timely filed, which constitutes a fatal defect under the plain language of Election Law § 1-106 (2).
B. The Equities
Petitioner contends that the Court should exercise its equitable powers to deem her Certificate timely filed. In this regard, she cites the fact that she was in St. Louis receiving medical treatment from March 14, 2020 to March 24, 2020 (see NYSCEF Doc No. 18 ["Hawatmeh Aff."], ¶¶ 3-4). Petitioner purposefully scheduled these medical appointments to accommodate the political calendar published by the SBOE (see id. , ¶ 6).
Petitioner did not learn that the political calendar had been changed until March 22, 2020 (see id. , ¶ 7). After unsuccessfully attempting to find a notary in St. Louis, she returned to New York (see id. , ¶¶ 8-9). While petitioner was able to execute the Certificate in the presence of a notary on the evening of March 24, 2020, the post offices were closed at that time, and her first opportunity to mail the Certificate was not until March 25, 2020 (see id. , ¶¶ 10-11). Petitioner and her counsel make a persuasive case that the equities favor the relief requested in the Petition. Petitioner executed the Certificate prior to the deadline; the SBOE received the Certificate by mail within two days of the deadline (see Election Law § 1-106 [1] ); petitioner was out-of-state for medical reasons for much of the relevant period; her trip was planned in reliance on the original political calendar; and there is no claim that respondents or anyone else would be prejudiced by excusing the brief delay in mailing the Certificate.
Nonetheless, the Legislature has declared that "[t]he failure to file any ... certificate relating to the designation ... of a candidate for ... public office ... within the time prescribed by the provisions of [the Election Law] shall be a fatal defect" (id. , [2] ). Since "a certificate of authorization is an integral part of a valid designating petition" ( Matter of Stampf v. Hill , 218 A.D.2d 919, 920, 630 N.Y.S.2d 813 [3d Dept. 1995] ), a failure to timely file the certificate renders "the petition ... void" ( Matter of Plunkett v. Mahoney , 76 N.Y.2d 848, 850, 560 N.Y.S.2d 276, 560 N.E.2d 575 [1990] ). Thus, "[i]t is now well established that the time limitations of the statute are mandatory and that the judiciary is foreclosed from fashioning exceptions, however reasonable they might be made to appear" ( Matter of Sheehan v. Aylward , 84 A.D.2d 602, 603, 444 N.Y.S.2d 260 [3d Dept. 1981], affd 54 N.Y.2d 934, 445 N.Y.S.2d 138, 429 N.E.2d 816 [1981] ; see also Matter of Gallo v. Turco , 131 A.D.3d 785, 786, 14 N.Y.S.3d 832 [3d Dept. 2015] ; Matter of Dixon v. Clyne , 87 A.D.3d 812, 813, 928 N.Y.S.2d 483 [3d Dept. 2011], appeal dismissed 17 N.Y.3d 824, 929 N.Y.S.2d 788, 954 N.E.2d 77 [2011] ).
There is nothing in Chapter 24 that altered this well-settled rule. Rather, the statute simply established a new deadline for the filing of designating petitions and provided that all other dates flowing from the new filing deadline "shall be adjusted accordingly" (§ 1). In enacting the statute, the Legislature presumably was aware that acceleration of the filing deadlines would create hardships for some candidates, but it did nothing to modify the statutory provisions and decades of established precedent that foreclose courts from excusing a candidate's failure to comply with mandatory filing deadlines.
In concluding that the equitable relief sought by petitioner is unavailable, the Court has reviewed the March 27, 2020 decision of Supreme Court, Westchester County in Jasikoff v. Commissioners of the Westchester County Board of Elections , the principal authority relied upon by petitioner (see NYSCEF Doc No. 23). In a well-intentioned effort to avoid "gross[ ] unfair[ness]," the Jasikoff court, sitting "[a]s a Court of Equity," validated a designating petition that was not filed within the accelerated deadline established by Chapter 24 (id. , p. 3). However, this Court finds that the precedents of the Court of Appeals and Appellate Division, Third Department cited above foreclose the granting of equitable relief in this case.
Based on the foregoing, the Court is constrained to reject petitioner's prayer for equitable relief.
In light of this conclusion, petitioner's belated request for the "equitable remedy of opportunity to ballot" cannot be granted (Matter of Maurer v. Monescalchi , 264 A.D.2d 542, 543, 694 N.Y.S.2d 251 [3d Dept. 1999], lv denied 93 N.Y.2d 816, 697 N.Y.S.2d 563, 719 N.E.2d 924 [1999] ). Relatedly, the Court observes that Chapter 24 provides that "there shall be no option to file an opportunity to ballot petition in the June 2020 primary election" (§ 2).
C. Constitutionality
The Court rejects petitioner's contention that Chapter 24 is facially unconstitutional or that it offends her rights to political association, equal protection and/or due process under the facts of this case. The Governor and Legislature responded to an unprecedented public health emergency by adopting nondiscriminatory measures intended to reduce the transmission of COVID-19 through the direct person-to-person interactions associated with collecting signatures, while maintaining the existing statutory and regulatory framework for objections, acceptances, authorizations, declinations and substitution to the greatest extent practicable.
Moreover, this is not a case where the Governor, Legislature or SBOE misled petitioner about her obligations as a candidate. Rather, the Governor and Legislature were compelled to take emergency action to respond to an evolving and growing public health crisis, and the SBOE attempted to disseminate information concerning the new political calendar as promptly as it could. As a candidate for public office, petitioner had an obligation to stay abreast of developments affecting her candidacy, and she and her campaign are chargeable with knowledge of the Governor and Legislature's emergency modifications to the Election Law.
While petitioner avers that she did not learn of the changes to the petitioning process until March 22, 2020 (see Hawatmeh Aff., ¶ 7), the Governor issued EO 202.2 on March 14, 2020, the Legislature enacted Chapter 24 on March 18, 2020, and petitioner's designating petition was timely filed with the SBOE on March 20, 2020.
Finally, the Court is mindful that the last-minute changes to the petitioning process adopted by the Governor and Legislature worked a hardship on candidates like petitioner who acted in reliance on the pre-pandemic election calendar. But petitioner has failed to demonstrate that the burdens attendant to the acceleration of the political calendar outweigh the State's compelling interest in responding to an unprecedented global health crisis through reasonable, nondiscriminatory measures intended to "flatten the curve" and limit the spread of COVID-19, while, at the same time, safeguarding the integrity of the electoral process by, among other things, requiring the prompt filing of petitions and certificates following the suspension of signature collection (see Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 [1997] ; Unity Party v. Wallace , 707 F.2d 59, 63 [2d Cir. 1983] ; Matter of Dixon , 87 A.D.3d at 813, 928 N.Y.S.2d 483 ).
CONCLUSION
The Court has considered the parties' remaining arguments and contentions but finds them unavailing or unnecessary to reach given the disposition ordered herein.
ORDERED that petitioner's application to validate her designating petition is denied; and it is further
ADJUDGED and DECLARED that Chapter 24 is facially constitutional and does not violate petitioner's constitutional rights on the facts of this case; and finally it is
ADJUDGED that the Verified Petition is dismissed in all respects.
This constitutes the Decision, Order & Judgment of the Court.