Opinion
70034/10.
Decided September 17, 2010.
Steven G. Leventhal, Roslyn, NY, Petitioners.
Martin Connor, Brooklyn, Respondents.
Kathy B Huang, NY, NY, Assistant County Attorney for the County of Suffolk, Rudolph M Baptiste, Respondents.
The petition to cancel the enrollment of 633 respondents from membership in the Conservative Party of Suffolk County is dismissed for the reasons set forth on the record. This Court was assigned this matter pursuant to an Administrative Transfer Order dated September 10, 2010 by Deputy Chief Administrative Judges Coccoma and Fisher. This action was filed in the Tenth Judicial District as required by New York Election Law § 16-110. However, transfer was required to the Second Judicial District because of multiple recusals in the Tenth Judicial District.
The petitioner alleges a "conspiracy" by the Suffolk County Police Benevolent Association ("Suffolk PBA") to "perpetuate a scheme of a large scale fraudulent enrollment of police officers" in the Conservative Party. Election Law § 16-110 (2) provides as follows:
The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon written complaint by an enrolled member of such party in such county and after hearing held by him or by a sub-committee appointed by him upon at least two days' notice to the voter, personally or by mail, determine that the voter is not in sympathy with the principles of such party. The Supreme Court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party at least ten days before a primary election, shall direct the enrollment of such voter to be cancelled if it appears from the proceeding before such chairman or sub-committee, and other proofs, if any, presented, that such determination is just.
The Court of Appeals described the application of Election Law § 16-110 (2) as follows:
Election Law § 16-110 (2) assigns the task of determining whether a voter "is * * * in sympathy with the principles" of his or her political party to a leader of that party — the County Committee Chair and limits courts to deciding whether this determination is "just." This division of responsibility reflects a legislative choice not to involve courts in determining party "principles." Thus the courts role is to ensure that the County Committee Chair reaches a decision on the basis of sufficient evidence and does not consider inappropriate factors.
In ensuring that the County Chair reaches a decision on the basis of sufficient evidence, the proceeding of Election Law § 16-110 "must be strictly adhered to." ( MacKay v Conroy, 13 Misc 3d 1214 (a) [Sup Ct Kings County 2006]. ( Greenberg v Cohen, 173 Misc 405 [Sup Ct NY County [1940]). It is clear that petitioners have failed to comply strictly with the requirements of Election Law § 16-110. The clear language of the statute requires a "written complaint" by an enrolled member of the party that "the voter is not in sympathy with the principles of the party." The "written complaint" upon which the proceedings instituted by the chair of the party are based is deficient. The letter of Mr. Nohs to the Chairman of the Suffolk County Conservative Party, dated August 4, 2010 (Exhibit 4) fails to identify the specific enrolled voter or voters that were challenged. Instead, the complaint requests the chair "to investigate and where appropriate, move to cancel the enrollment of each and every re-enrolled individual who was removed from the party . . . and or any new enrollees into the party that is determined by you not to be in sympathy, with the principles of the Conservative Party." The complaint fails to list the name of any voter or attach a list of any of the voters suspected of not being in sympathy with the party. Instead, the evidence adduced at trial established that the chair of the subcommittee undertook an investigation of every new voter found to have enrolled in the Conservative Party when the Board of Elections opened the "lock box" of new enrollees in late 2009. This procedure does not comport with the statutory scheme which envisions a proceeding against "a voter" based on a complaint that the voter was not sympathy with the principles of the party. The notice to the enrolled voters (Respondents) (Exhibits 7 through 590) attaches a copy of the complaint made by Mr. Nohs to the chairman which as indicated does not specify the claims against the individual voter receiving the notice.
The most important component that ensures that a person has been given due process is notice. If a citizen has not received notice of a proceeding, all other procedural safeguards are meaningless. Notice is the sine qua non of due process. ( Quinn v Lane, 36 Misc 2d 2 [Sup Ct Albany County 1962]).
Here, there has been a total failure of proof that the notices advising the enrolled voters of a scheduled hearing were actually mailed. There is no affidavit of service, affirmation of service or certificate of mailing presented to establish a mailing. The sole testimony was of an attorney Mr. Johannesen, the chairman of the subcommittee who conducted the hearing; Mr. Johannesen testified that he observed his paralegal preparing some of the 633 notices and putting some of the prepared letters in a white box in his office. Mr. Johannesen did not identify with any specificity the process or procedure that his paralegal followed in ensuring that the identified respondents each were mailed notice. The paralegal who was alleged to have prepared the notices and mailed them was not called as a witness, even thought she was in the control of the Chair of the Subcommittee, Mr. Johannesen.
The order entered on September 10, 2010 directing the Suffolk County Board of Elections to prepare to have respondents vote by affidavit ballot is vacated. The Petition to cancel the enrollment of respondents is dismissed with prejudice and all respondents are to be permitted to exercise their vote by normal process, i.e. voting machine.
The foregoing constitutes the decision and Order of the Court.