Opinion
Index EF2022904
05-02-2022
WILLIAM H. MCGAHAY, III and SHEILA A. RIVERS, Petitioners, v. SARATOGA COUNTY BOARD OF ELECTIONS, Respondent, and ROBERT D. ZORDAN, Respondent-Objector.
Joseph T. Burns, Esq., attorney for Petitioners Greenberg Traurig, LLP (Robert M. Harding, Esq. And Joshua L. Oppenheimer, Esq.) for Respondent-Objector, Robert D. Zoran Saratoga County Attorney {Michele Granger, Esq.) for Respondent Saratoga County Board of Elections
Unpublished Opinion
For an Order, pursuant to Article 16 of the Election Law, declaring valid the Conservative Party designating petitions of William H. McGahay, III and Sheila A. Rivers, as candidate for Judicial Delegate and/or Alternate Delegate for Assembly District 108, 4 Judicial District and compelling and requiring that the Saratoga County Board of Elections accept the designating petitions as timely and place and certify the names of the Petitioners on the June 28, 2022 primary ballot as candidates of the Conservative Party for the party position of Judicial Delegate for the 108 Assembly District, 4 Judicial District.
Assembly District based upon non-residency.
Dep't, 1978)
Although the Appellate Division, Fourth Department had an opportunity to revisit this rule as recently as 2014, it declined to do so based upon prematurity of the challenge.
Even assuming, arguendo, that a candidate for the position of delegate to a judicial district convention must reside within the geographic boundaries of the assembly district that he or she seeks to represent (see Election Law §6-124; cf. Matter of Corbin v. Goldstein, 64 A.D.2d 935, 936, 408 N.Y.S.2d 140, Iv. denied 45 N.Y.2d 707, 409 N.Y.S.2d 1025, 381 N.E.2d 167), such requirement would not become operative until "the time of commencement of the term" of the position (§ 6-122[3]; see Matter of Weidman v. Starkweather, 80 N.Y.2d 955, 956, 590 N.Y.S.2d 873, 605 N.E.2d 360; Matter of Biamonte v. Savinetti, 87 A.D.3d 950, 954-955, 929 N.YS.2d 173; Matter of Keith v. King, 220 A.D.2d 471, 471-472, 632 N.Y.S.2d 582). In this case, that date is September 9, the date of the primary election. Petitioners' challenge is therefore premature (see generally Weidman, 80 N.Y.2d at 956, 590 N.Y.S.2d 873, 605 N.E.2d 360).Locke v. Walsh, 120 A.D.3d 997, 997 (4
Dep't, 2014)
While this Court may question the legal interpretation of the statutory language by the Court in Corbin, it is nonetheless bound to follow it as precedent established by one of the Appellate Divisions in the absence of other appellate precedent to the contrary. Therefore, Zordan's second argument and presumably, the Board's only other basis for rejecting the Petition, must also fail.
While Petitioner argued that Zordan's Objections and "Specific Objections" should not be considered because Zordan was not a qualified objector, the Court need not rule on that issue since Zordan raised only the two objections treated above and the Board's decision implicitly adopted the same reasons for determining that the petition failed on prima facie review since it stated no other basis in its letter determination. If the Board intended to disqualify the petition for some other, unstated reason, it would be in violation of 6215.7 of the Rules of the State Board of Elections for failure to advise the Petitioners for the basis of its determination. In addition, the neither Zordan or the Board offered any other basis or argument for disqualifying the petition either in their submissions to the Court or on oral argument.
C. Conclusion
This Court finds that the Petitioners' Petition is valid and the name of William H. McGahay, III shall appear on the Primary Election ballot for the Conservative Party Primary to be held June 28, 2022 as a candidate for the office of Delegate, 4th Judicial Nominating Convention, in the 108th Assembly District and the name of Sheilah A. Rivers shall appear likewise as an Alternate Delegate.
THE COURT'S RULING
ORDERED, that Petitioners' Petition is hereby in all respects GRANTED; and it is further
ORDERED, that Petitioners' Designating Petition be and hereby is validated; and it is further
ORDERED, that the Saratoga County Board of Elections be and hereby is directed to accept Petitioners; Designating Petition as timely and valid; and it is further
ORDERED, that the Saratoga County Board of Elections be and hereby is directed to place the names of William H. McGahay, III and Sheilah A. Rivers on the ballot for the Conservative Party Primary Election to be held June 28, 2022, as candidates for the offices of Delegate, 4th Judicial Nominating Convention, in the 108th Assembly District and Alternate Delegate, 4th Judicial Nominating Convention, in the 108th Assembly District, respectively; and it is further
ORDERED, that this constitutes the Decision and Order of the Court.
Joseph T. Burns, Esq., attorney for Petitioners
Greenberg Traurig, LLP (Robert M. Harding, Esq. And Joshua L. Oppenheimer, Esq.) for Respondent-Objector, Robert D. Zoran
Saratoga County Attorney {Michele Granger, Esq.) for Respondent Saratoga County Board of Elections
DECISION AND ORDER
Michael R. Cuevas, Judge
INTRODUCTION
Petitioners, William H. McGahay, III (hereinafter referred to as "McGahay") and Sheilah A. Rivers (hereinafter "Rivers"), instituted this proceeding pursuant to Election Law Article 16 by filing a Verified Petition and Exhibits, an Emergency Affirmation of Counsel and a proposed Order to Show Cause with the Saratoga County Clerk on April 18, 2022. Due to the recusals by other Justices, this proceeding was assigned to this Court on April 20, 2022. An Order to Show Cause was then issued directing the manner of service, the dates for filing and service of further pleadings and setting the date for hearing. Respondent-Objector Robert D. Zordan (hereinafter "Zordan") filed a Verified Answer and Objections in Point of Law on April 26, 2022. Respondent Saratoga County Board of Elections (hereinafter "the Board") filed a certification and copies of its records relevant to this proceeding. On April 29, 2022, Petitioner filed a Reply with additional exhibits.
On the return date, counsel stipulated that there was no dispute as to the material facts in this proceeding and that ail exhibits (both those submitted by Petitioners and those submitted by the Board) could be received into evidence on consent. The stipulation included the affidavit of McGahay, sworn to April 28, 2022. As Counsel agreed the issues were strictly legal in nature, the Court heard oral argument only.
FACTUAL BACKGROUND
A. Background
Petitioner McGahay is a registered voter, enrolled in the Conservative Party. McGahay resides in Lake Placid, (Essex County) New York which is in the 4 Judicial District. NYSCEF Document 1, Petition. ¶2. Petitioner Rivers is a registered voter, enrolled in the Conservative Party. Rivers resides in Wilmington, (Essex County) New York which is in the 4 Judicial District. NYSCEF Document 1, Petition ¶3. Petitioners filed a designating petition with the Saratoga County Board of Elections, which purports to designate them as candidates for the positions of Delegate (McGahay) and Alternate Delegate (Rivers) to the Conservative Party 4 Judicial District Nominating Convention from the 108 Assembly District. NYSCEF Document 1, Petition, ¶2, 3, NYSCEF Document 6, Ex. C. The Fourth Judicial District in New York consists of the entirety of eleven counties: Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, Saratoga, Schenectady, St. Lawrence, Warren and Washington. The 108 Assembly District is comprised of portions of Saratoga County.
The New York State Board of Elections' Political Calendar (NYSCEF Document 5) established April 7, 2022 as the last day to file designating petitions. On April 7, 2022, McGahay brought the Petition to a Federal Express store located at 110 Wolf Road in the Town of Colonie (Albany County), New York and arranged for FedEx Priority Overnight service. NYSCEF Document 24, McGahay Aff. ¶2. McGahay was informed that his package would bear a label indicating a "ship date" of April 8, 2022, as the last pickup for April 7, 2022 had already occurred but that his receipt would reflect the date and time the package was tendered (April 7, 2022). NYSCEF Document 24, McGahay Aff. ¶2; NYSCEF Document 10. McGahay placed his receipt in the FedEx package containing the Petition. NYSCEF Document 24, McGahay Aff. ¶7; NYSCEF Document 9. The FedEx package was delivered to the Board on Monday, April 11, 2022. NYSCEF Document 10.
On April 13, 2022, Zordan filed a General Objection to the Petition with the Board. NYSCEF Document 7. Zordan then filed "Specific Objections" on April 18, 2022. NYSCEF Document 8. The Board advised Petitioners by letters dated April 18, 2022, "After careful review of the specifications, the Commissioners have agreed that the objections are disqualifying; therefore the petition is invalid. Additionally, the petition failed on prima facie review by the Board of Elections." NYSCEF Document 20, pages 1 and 2. McGahay states that he was never given the opportunity to be heard on the objection or specific objections. NYSCEF Document 24, paragraph 10.
THE LAW AND DISCUSSION
A. ZORDAN'S OBJECTIONS IN POINT OF LAW
Petitioners aver that they have served Respondents in accord with the terms of the Order to Show Cause and Respondents have offered no evidence or argument to the contrary. Therefore, Zordan's First Objection in Point of Law is rejected.
Zordan's Second Objection in Point of Law relates to Petitioner's burden in this proceeding, which is more fully discussed below.
Under Election Law 16-102(2), a proceeding with respect to a designating petition must be filed within fourteen days of the last day to file a petition, or three days after the Board of Elections makes a final determination of invalidity of the petition, whichever is later. The instant proceeding is clearly timely as it was commenced the same day as the Board's determination of invalidity and within fourteen days of the last day to file the designating petition. Additionally, Zordan has offered no evidence or argument in support of his objection that Petitioners' claims are barred by laches, waiver, unclean hands ore estoppel. Therefore, Zordan's Third Objection in Point of Law is also rejected.
Petitioners seek a legal remedy under the Election Law in bringing this proceeding; therefore, Zordan's Fourth Objection in Point of Law is inapplicable and dismissed.
B. PETITIONERS' BURDEN IN A VALIDATION PROCEEDING.
In the instant proceeding, Petitioners have the burden of going forward and the initial burden of establishing a prima facie case to establish the validity of the designating petition. However, once Petitioners have met that burden, the burden shifts to Respondents.
Since defendants are the ones who assert that the subscribing witnesses are guilty of fraud or perjury, the burden of going forward-once the petitions were introduced in evidence, and received generally-rested on them (see Miles v. Loomis, 75 N.Y. 288, 291-292; Hoffman v. Hoffman, 6 App.Div. 84, 85, 39 N.Y.S. 494; Abbott's Civil Jury Trials [5th ed.] 412). Of course, the burden of proof on the whole case never shifted from plaintiff who, on these pleadings, must ultimately establish that his petition was valid and entitled him to be on the ballot (see Schwartz v. Heffernan, supra, 304 N.Y. at page 481, 109 N.E.2d at page 70).Schwartz v. De Sapio, 9 A.D.2d 756, 756, (1 Dep't, 1959)
Findings by the board of elections as to the invalidity or validity of petitions or the signatures on them are presumptively correct. The burden of proving the validity or invalidity is on the person who questions the action of the board in rejecting or accepting the petition.22 Carmody-Wait 2d § 137:53; Pataki v. Hayduk, 87 Misc.2d 1095, (Sup W76), judgment aff'd, 55 A.D.2d 861, (2d Dep't 1976). See also, Warsoff v. Cohen, 264 A.D. 953, (2d Dep't, 1942.), aff'd, 289 N.Y. 108 (1942); Matter of McDonnell v. Cohen, 252 AD 277, aff'd 275 N.Y. 644.
Here, the Petition (NYSCEF Document No. 6) in question was received into evidence on consent. The Petition appears to be in a form in substantial compliance with Election Law 6-132 in that it: (1) identifies the political party; (2) provides the name, office sought and address for each candidate; (3) names the correct number of candidates (one each for Delegate and Alternate Delegate; (4) the signatures of the signers, their addresses and town of residence appear complete; (5) the Statement of Witness section appears complete; and each page is numbered. Since it is only a two-page petition, no cover sheet is necessary, and none was provided. The dispute arises with respect the issues listed below.
1. Timeliness of the Filing of the Petition.
Zordan's primary argument is that the Petition was not timely filed. In support of this claim he argued that while Election Law §1-106 permits petitions to be filed by use of an private (express) delivery service ("PDS") designated by Internal Revenue Code section 7502, U.S. Internal Revenue Service Notice 97-26 required that the date treated as the postmark date for Federal Express packages was the date marked on the label. Here, it is undisputed that the date listed on Petitioner's Federal Express package label was a "ship date" of April 8, 2022, one day after the last day to timely file a petition.
Petitioners argue that since it was also undisputed that they delivered the package containing their petition to Federal Express before midnight on April 7, 2022 and supplied proof in the form of a Federal Express receipt, the filing was timely.
After the hearing, Zordan submitted copies of U.S. Internal Revenue Service Notices 97-26, 2015-38 and 2016-30. While Notice 97-26 supports Zordan's argument, the 2015 and 2016 Notices no longer treat the FedEx label date as the postmark date. Notice 2015-38 states,
"For each PDS designated in this notice, the delivery service records electronically the date on which an item was given to it for delivery, which is treated as the postmark date for purposes of section 7502."
Notice 2016-30 continues the 2015 rule that the date an item is given to the PDS is the effective postmark . Therefore, Zordan's argument and the Board's determination, based upon the "label postmark" must fail as Petitioners' electronic record of the date their petition package was given to FedEX for delivery was April 7, 2022. Therefore, the petition must be deemed timely filed with the Board.
2. McGahay and Rivers do not qualify for the positions of Delegate and Alternate Delegate from the 108
The rule as to whether a person seeking designation as a candidate for the office of Delegate or Alternate Delegate to a Judicial Nominating Convention was decided by the Second Department forty-four years ago.
The designating petitions are challenged on the ground that some of the nominees for delegate and alternate delegate to the Second District Democratic Judicial Convention do not reside in the assembly districts from which they seek to be elected. However, these nominees do reside within the Second Judicial District, which embraces the pertinent assembly districts. Section 6-124 of the Election Law provides, in pertinent part, that delegates to a judicial district convention shall be elected "from each assembly district". In our opinion, this language does not mandate that a delegate reside in the assembly district from which he seeks to be elected. Since party nominations for the office of Justice of the Supreme Court are made by the judicial district convention and Justices are chosen by the electors of the judicial district in which they are to serve, it is sufficient that delegates and alternate delegates to a judicial district convention reside in that judicial district.Corbin v. Goldstein, 64 A.D.2d 935, 936 (2