Opinion
Index No. E179722/2023
05-09-2023
In the Matter of Application Cathy Cattanzio, Petitioner-Objector, v. Willard L. (Will) Schulmeister, Jr., Respondent-Candidate, and NIAGARA COUNTY BOARD OF ELECTIONS, By LORA ALLEN and JENNIFER SANDONATO, CONSTITUTING COMMISSIONERS, Respondents.
JOSEPH T. BURNS, ESQ., Appearing for the Petitioner-Objector JOSHUA RAMOS, ESQ., Appearing for the Respondent-Candidate CLAUDE JOERG, ESQ., Appearing for Niagara County Board of Elections, by Commissioners, Respondents.
Unpublished Opinion
JOSEPH T. BURNS, ESQ., Appearing for the Petitioner-Objector
JOSHUA RAMOS, ESQ., Appearing for the Respondent-Candidate
CLAUDE JOERG, ESQ., Appearing for Niagara County Board of Elections, by Commissioners, Respondents.
Edward A. Pace, J.
A proceeding was brought pursuant to Section 16-102 of the Election Law, by order to show cause, for this Court to issue an order:
(1) invalidating the Republican Party Designating Petitions filed with the Board of Elections of Niagara County purporting to designate and/or nominate Willard L. (Will) Schulmeister, Jr. as a candidate for the purported Public Office of Alderman - Ward 2, City of North Tonawanda, State of New York in the Primary Election to be held on June 27, 2023; and
(2) Enjoining, restraining, and prohibiting the Board of Elections of Niagara County from executing or allowing the Name of Willard L. (Will) Schulmeister, Jr. to be printed or placed on the official ballots to be used either at the June 27, 2023, Primary Election or November 7, 2023, General Election for the Public Office of Alderman - Ward 2, City of North Tonawanda, State of New York on the Republican Party line; or that of any other candidate purporting to fill the vacancy occurring by reason of his disqualification upon the official ballots of said June 27, 2023, Primary Election and November 7, 2023, General Election.
This Court holds that granting such relief under the facts and circumstances of this case would be contrary to the intent of state and local legislatures and therefore denies the motion. That, in the absence of allegations of fraud substantial compliance with the Election Law is sufficient. No fraud is alleged here. The designating petition filed with the Board of Elections should be validated. This Court hereby issues the following Decision and Order denying the petition for an order invalidating the designating petition and other relief requested.
FACTS
A petition designating designate and/or nominate Willard L. (Will) Schulmeister, Jr. as a candidate for the purported Public Office of Alderman - Ward 2, City of North Tonawanda, State of New York (Niagara County), in the Primary Election to be held on June 27, 2023, was filed with the Niagara County Board of Elections on April 10, 2023 [NYCEF Doc. No. 10 "DESIGNATING PETITION OF RESPONDENT CANDIDATE"] (Designating Petition). Objections were timely filed April 11, 2023 [NYSCEF No. 11 "GENERAL AND SPECIFIC OBJECTIONS TO THE PETITION OF RESPONDENT-CANDIDATE], (Objections).
On April 20, 2023, Petitioner here filed the subject motion by way Order to Show Cause [NYCEF Doc. Nos. 1-4], supplementing same with the affidavit of Lockport Alderman Luke Kantor [NYCEF Doc. No. 8] outlining the procedure of City of Lockport when appointing commissioners of deeds.
Respondent-Candidate (Respondent) filed, by attorney affirmation of Joshua I Ramos, Esq. [NYSCEF No. 14] multiple oppositions to the Petition.
The crux of Petitioner's first argument is that pages six and seven of the Designating Petition were witnessed by a commissioner of deeds, Gail Tylec (Tylec), who signed those petition pages but did not also state on two of her three submitted pages, her "official title," as contemplated in Election Law Section 6-132(3).
Petitioner's second argument is that Tylec was never duly appointed commissioner of deeds, in a manner provided for in the Executive Law.
Either argument, if determined to be valid, will result in striking signatures in an amount more than numerically sufficient to invalidate the entire designating petition of Respondent-Candidate.
Respondent-Candidate contends that the petition is flawed, and not validly before this Court in that the petitioner's name is not on the voter roll for that election ward or that the petitioner's name is misspelled, and that the petitioner has not moved to amend the petition or otherwise cure the defect. Respondent further contends that the contested designating petitions suffer, at most, a defect which should be considered by the court as merely a technical defect and not one of substance, sufficient to invalidate those petitions.
Respondent-Niagara County Board of Elections Commissioners are split on the validity of pages six and seven and take respective the positions: Republican Elections Commissioner Jennifer Sandonato's position is that pages six and seven of the Designating Petition are invalid as the witness did not state, on those two pages, her "official title," of either a notary public or commissioner of deeds. The Democratic Elections Commissioner, Lora Allen's position is that the witness stated her "official title" of commissioner of deeds on page eight of the Designating Petition, sufficient to validate the preceding petition pages six and seven and would validate the Designating Petition of Respondent-Candidate.
DISCUSSION
This Court is required to review the Designating Petitions de novo, but only those designating petitions as have been properly objected to and before the Court. Here, the Court will review pages six, seven and eight of the Designating Petition (Ex. 3). If these signatures are invalidated, the number of valid signatures falls short of the majority needed pursuant to Election Law Sec. 6-136(2).
The burden of proving the signatures invalid rests on the party attacking the validity of the designating petition (Matter of Civilette v. Caccamise, 42 A.D.2d 1026, 349 N.Y.S.2d 238, affd. 33 N.Y.2d 730, 349 N.Y.S.2d 997, 304 N.E.2d 566).
The statutory framework for the taking of signatures on designating petitions by notaries and commissioners of deeds is rooted in Section 6-132 of the Election Law. The Legislature has expressly allowed qualified public officers to administer oaths in connection with the taking of signatures on designating petitions. Further, the notary or commissioner of deeds is required to make and subscribe the following statement, "On the dates above indicated before me personally came each of the voters whose signature appears on this petition sheet containing _____ (fill in number) signatures, who signed same in my presence and who, being by me duly sworn, each for himself, said that the foregoing statement made and subscribed by him was true." Election Law Sec.6-132 (3).
Another statutory directive comes from the CPLR, where an oath must be communicated in a form "calculated to awaken the conscience and impress the mind of a person taking it in accordance with his religious and ethical beliefs", CPLR 2309(b), emphasis added.
Petitioner does not argue that the oath, as required to be administered was deficient, and very little proof of same was elicited at the proceeding. Rather, petitioner argues that the designating petition, on pages six and seven, lacked the statement of the commissioner witness, below her signature, of her "official title" as a commissioner of deeds, per Election Law Sec. 6-132 (3), citing Fuentes v. Lopez, 264 A.D.2d 490 (2nd Dept. 1999).
Petitioner argues that by failing to fully perform her duties as a commissioner of deeds, Gail Tylec altogether defeated the purpose of Election Law § 6-132, which authorizes a commissioner of deeds to take signatures on a designating petition in lieu of a subscribing witness, who must be a voter qualified to sign the petition. Because, ostensibly, Gail Tylec is not a member of the Republican Party she was not qualified to sign the petition. Therefore, she was authorized to take the signatures only because she is a qualified public officer.
Petitioner's Exhibit No. 3 was admitted into evidence, and includes pages six, seven and eight of the Designating Petition, witnessed by Gail Tylek. The contested pages-six and seven-each appropriately contain the number of signatures witnessed by Gail Tylec, the signature of Gail Tylec, the date signed and the expiration of her commission, to wit, "12-31-23." Pages six and seven, however, do not indicate her office (i.e., notary public or commissioner of deeds).
However, page 8 of Exhibit 3, contains the number of signatures witnessed by Gail Tylec, the signature of Gail Tylec, the date signed, the expiration of her commission, and also her "official title," commissioner of deeds.
In Matter of Marchionda v. Casella, 153 A.D.3d 1133, 1134 (4th Dept 2017), the Appellate Division found that the failure of notary witness to identify himself as such "constituted a mere technical defect, [inasmuch] as [he] stated[his] identification number* * * and the expiration date of [his] office* * * as notar[y] public on the designating petitions". This Court sees the facts elicited at our proceeding as more closely aligning with the facts stated in the Marchionda decision cited by Respondent, than the Fuentes decision cited by Petitioner.
When read together with page eight, the other two pertinent pages of Exhibit 3-pages six and seven-are sufficient to correctly identify Gail Tylec's office, on the Designating Petition, as commissioner of deeds.
Petitioner also argues that Ex. 3, pages 6, 7 and 8 must be invalidated in their entirety because the witness to these three pages - purported commissioner of deeds for the City of Lockport Gail Tylec - was never duly appointed as a commissioner of deeds by the Lockport Common Council. Executive Law Sec. 139 states that commissioners of deeds "shall be appointed by the common councils" in cities outside of the City of New York, and such directive may not be superseded.
The Court agrees that Executive Law Sec. 139 may not be superseded by the actions or traditions of a city council or mayor.
Ms. Tylec testified that she is the signatory of Ex. 3, pages six, seven and eight. That she is a registered voter, living in North Tonawanda (Niagara County), and that she was "sworn in as a Commissioner of Deeds" at the Niagara County Courthouse, paid her $10.00 or $20.00 fee and later received "my card as Commissioner of Deeds," [Respondent's Ex. "B."] Ms. Tylec further testified that she was unaware of the provisions of the Executive Law or the policies and actions of the City of Lockport Common Council or Mayor as it pertained generally to the appointments of commissioners of deeds, or to her own appointment. Nor was she ever apprised of the alleged invalidity of her commission until this lawsuit was filed. Further, when she witnessed the signatures and signed her name to the subject designating petitions, she believed she was a duly authorized commissioner of deeds.
Nor was there evidence produced at the hearing that the Respondent-Candidate or any of his staff knew anything about the practice of the City of Lockport in making these appointments, or that they were informed that there was an actual or apparent problem with the appointment process.
Such defects in the acts of the commissioners are excusable pursuant to Executive Law § 142-a (2), which provides, in relevant part that "the official certificates * * * of * * * commissioners of deeds * * * shall not be deemed invalid, impaired or in any manner defective, so far as they may be affected, impaired or questioned by reason of," among other defects, "ineligibility of the * * * commissioner of deeds to be appointed or commissioned as such" (§ 142-a [1], [2][a]). Executive Law § 142 a further provides in relevant part, however, that, "[n]o person shall be entitled to assert the effect of this section to overcome a defect described in subdivision two if he knew of the defect or if the defect was apparent on the face of the certificate of the * * * commissioner of deeds" (§142-a [3]).
The actions of the Lockport Common Council or Mayor in apparent violation of the specific language of Executive Law Sec. 139, and unbeknownst to witness Gail Tylec, or the Respondent-Candidate should not work to disenfranchise any of the voters who signed any of Respondent-Candidate's designating petitions, including pages six, seven and eight, nor should it work to penalize a candidate for innocent violations of the Election Law that have no bearing on its underlying purpose to prevent fraud, (see, Parks v. Leahey & Johnson, 180 A.D.2d 479, 579 N.Y.S.2d 672, mod. 81 N.Y.2d 161, 597 N.Y.S.2d 278, 613 N.E.2d 153).
It is hereby
ORDERED, that the motion brought by petitioner Cathy Cattanzio, seeking to invalidate the designating petitions of Respondent-Candidate Willard L. (Will) Schulmesiter, is DENIED.
ORDERED, that THE NIAGARA COUNTY BOARD OF ELECTIONS, JENNIFER SANDONATO and LORA ALLEN, Commissioners, place the name of WILLARD L. (WILL) SCHULMEISTER, JR., for the Public Office of Alderman, Ward 2, City of North Tonawanda, on any and all Republican primary election ballots pertaining to the June 27, 2023, primary election.