Opinion
Index No. 157708/2021
08-26-2021
John CLINTON, Petitioner, v. The BOARD OF ELECTIONS OF the CITY OF NEW YORK, Ronald Castorina Jr., Paul Marrone Jr., Republican Committee of Richmond County, Anthony Reinhart, John Cilmi, Jessica Rios, Respondent.
For the Petitioner: STANLEY K. SCHLEIN, 481 King Avenue, Bronx, New York; For the Respondents: JOSEPH T. BURNS, 1811 Northwood Drive, Williamsville, New York.
For the Petitioner: STANLEY K. SCHLEIN, 481 King Avenue, Bronx, New York;
For the Respondents: JOSEPH T. BURNS, 1811 Northwood Drive, Williamsville, New York.
Carol R. Edmead, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 7, 9, 10, 14, 15, 16 were read on this motion to/for ELECTION LAW.
Upon the foregoing documents, and in accordance with the "So-Ordered" Transcript August 25, 2021 (Terry Ann Volberg, Court Reporter), it is hereby
ORDERED that the Petition of John Clinton (Index No. 156842/2021) seeking an order: (i) invalidating and declaring null and void the "Certificate to Fill Vacancies in Party Position(s) Republican Party Delegates to the Republican Judicial Convention Thirteenth Judicial District General Election - November 2, 2021" filed by Respondents Anthony Reinhart and Jessica Rios; and (ii) enjoining and restraining Respondent Board of Elections of the City of New York from compiling and certifying the roll of the 2021 Republican Judicial Convention of the 13th Judicial District from the 61st, 62nd, 63rd and 64th Assembly Districts of the State of New York, (Motion Seqs. 001 and 002) are dismissed; it is further
ORDERED that the motion of Respondents Anthony Reinhart and Jessica Rios seeking an order dismissing this petition on procedural grounds pursuant to CPLR 3211(a)(3) and 3211(a)(10) (Motion Seq. 003) is granted; and it is further
ORDERED that were the Court to reach the substantive issues raised in the Petition (Index No. 156842/2021), Petitioner's application for relief as set forth above would be granted; and it is further
ORDERED that Petition of John Clinton (Index No. 157708/2021) seeking an order: (i) invalidating and declaring null and void the Certificate of Nomination and of the Committee to Fill Vacancies purporting to nominate Ronald Castorina Jr. and Paul Marrone Jr. as Republican Party Candidates for the Public Office of Justice of the Supreme Court of the State of New York, 13th Judicial District, Richmond County, Acceptances of Nomination of such candidates and Official Call of the 13th Judicial District Republican Convention filed with the City BOE; (ii) declaring inconsequential, irrelevant and moot those certain minutes of the 2021 13th Judicial District Republican Convention and New York Republican State Committee list of Convenors of the 2021 Judicial Conventions; and (iii) enjoining and restraining the City BOE from printing and placing the Respondent Candidates’ names upon the official ballots and voting machines to be used in the upcoming General Election to be held on November 2, 2021 (Motion Seq. 001) is dismissed; and it is further
ORDERED that were the Court to reach the substantive issues raised in the Petition (Index No. 157708/2021), Petitioner's application for relief as set forth above would be granted; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that the counsel for Respondent Officials shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on all parties.
MEMORANDUM DECISION
On July 22, 2021, Petitioner John Clinton commenced this proceeding by Order to Show Cause (Index No. 156842/2021, "Action 1," Motion Seq. 001, NYSCEF doc No. 1) seeking an order: (i) invalidating and declaring null and void the "Certificate to Fill Vacancies in Party Position(s) Republican Party Delegates to the Republican Judicial Convention Thirteenth Judicial District General Election - November 2, 2021" (the "Certificate to Fill Vacancies") filed by Respondents Anthony Reinhart and Jessica Rios (the "Respondent Officials"); and (ii) enjoining and restraining Respondent Board of Elections of the City of New York (the "City BOE") from compiling and certifying the roll of the 2021 Republican Judicial Convention of the 13th Judicial District from the 61st, 62nd, 63rd and 64th Assembly Districts of the State of New York (NYSCEF doc No. 13).
On July 27, 2021, Respondent Officials answered (Action 1, NYSCEF doc No. 20). On August 3, 2021, Respondent Officials moved (Mot. Seq 003, NYSCEF doc No. 27 ), pursuant to CPLR 3211 (a)(1) and (3), for an order dismissing Action 1 on the grounds that that this Court should not proceed in the absence of persons who should be parties and that Petitioner lacks standing to sue.
A similar motion to dismiss, with an earlier return date of August 4, 2021, was filed by Respondent Officials and was marked as Mot. Seq. 002. In a letter dated August 3, 2021, counsel for Respondent Officials advised this Court that Respondent Officials are withdrawing said motion and filing a new one with a return date of August 24, 2021 (see NYSCEF doc No. 25).
On August 18, 2021, Petitioner separately filed a Petition (Index No. 157708/2021, "Action 2," Motion Seq. 001, NYSCEF doc No. 1), by order to show cause, seeking an order: (i) invalidating and declaring null and void the Certificate of Nomination and of the Committee to Fill Vacancies purporting to nominate Ronald Castorina Jr. and Paul Marrone Jr. (the "Respondent Candidates") as Republican Party Candidates for the Public Office of Justice of the Supreme Court of the State of New York, 13th Judicial District, Richmond County, Acceptances of Nomination of such candidates and Official Call of the 13th Judicial District Republican Convention (collectively, the "Nominating Documents") filed with the City BOE; (ii) declaring inconsequential, irrelevant and moot those certain minutes of the 2021 13th Judicial District Republican Convention and New York Republican State Committee list of Convenors of the 2021 Judicial Conventions; and (iii) enjoining and restraining the City BOE from printing and placing the Respondent Candidates’ names upon the official ballots and voting machines to be used in the upcoming General Election to be held on November 2, 2021.
On August 22, 2021, Respondents in Action 2 answered (Action 2, NYSCEF doc No. 12). In said document, Respondents state that "[t]he Answer serves as Notice to the Petitioner that [Respondents] seek validation of the Certificate in question, by this honorable Court." (¶31) To date, no cross-petition for validating the Nominating Documents, nor a motion to dismiss Action 2, has been filed.
On August 23, 2021, Respondent Officials in Action 1 and Respondents in Action 2 filed, through the same counsel, an identical Memorandum of Law (Action 1, NYSCEF doc No. 43; Action 2, NYSCEF doc No. 13).
A related action, Reinhart v New York State Board of Elections et al. (Index No. 906219/2021) was commenced on July 22, 2021 in the Supreme Court of Albany County. Respondent therein, John Clinton, filed an answer and a demand to change venue, asserting that venue should be transferred to New York County where the City Board of Elections has its principal place of business. By order dated July 29, 2019, the Supreme Court of Albany County (J. Ryba) granted a change in venue and directed that all papers in the Reinhart action be transferred to the New York County Clerk (Action 1, NYSCEF doc No. 33). To consolidate the Reinhart action with the action before this Court, the parties are required to obtain a new Index No. and a RJI. No such action has been taken to date.
Thus, only Actions 1 and 2 are consolidated for joint decision. ,
In an email dated August 19, 2021, Mr. Stephen Kitzinger, counsel for the Board of Elections, advised this Court that "[t]he Board of Elections will not be filing any submissions in connection with this matter."
Respondent Officials in Action 1 and Respondents in Action 2 will both be referred as "Respondents," unless particular facts and/or holdings apply only to one or the other.
BACKGROUND FACTS
On March 22, 2021, petitions designating candidates for the position of delegates for the Republican Judicial Convention of the 13th Judicial District were filed with the City BOE (Action 1, NYSCEF doc Nos. 6 and 41). The petitions were, however, invalidated for failure to file a Cover Sheet (Action 1, NYSCEF doc No. 41).
On June 22, 2021, the primary elections in the State of New York were held. No Republican candidates for the position of delegates for the Republican Judicial Convention of the 13th Judicial District appeared on the ballots.
The Certificate to Fill Vacancies
On June 29, 2021, former Governor Cuomo signed into law Chapter 188 of the Laws of 2021, which increased the number of Supreme Court justices in several judicial districts throughout the State of New York. Two seats were created for the 13th Judicial District of the State of New York.
In view of this development, on July 13, 2021, the Richmond County Republican Committee of New York (the "Richmond County Republican Committee") held a meeting to fill 28 "Delegate" positions to the Republican Judicial Convention ("Republican Delegates"), including 4 from the 61st Assembly District, 11 from the 62nd Assembly District, 7 from the 63rd Assembly District and 6 from the 64th Assembly (see Action 1, NYSCEF doc No. 27, pp.6-7).
On July 16, 2021, Respondent Officials filed with the City BOE the Certificate to Fill Vacancies containing the list of the Republican Delegates selected during the July 13, 2021 meeting. Respondent Officials were among said delegates.
On July 19, 2021, Petitioner filed with the City BOE his General Objections to the Certificate to Fill Vacancies (Action 1, NYSCEF doc No. 3)
On August 3, 2021, the City BOE Commissioners, in a 4-3 vote, declined to adopt a motion "for [the Candidate Records Unit] to be directed to promulgate and compile a list of delegates for the Richmond County Republican Judicial Convention, pursuant to Sections 9-200 and 9-202 of the Election Law, based on the Certificate [to Fill Vacancies]." (Action 1, NYSCEF doc No. 41) Based on the minutes of the August 3, 2021 meeting, the "objection was deemed [by the City BOE Commissioners] moot [as] th[e] matter will be determined in court." (id. , at p. 5)
The Certificate of Nominations
Petitioner alleges that on August 11, 2021, the Nominating Documents supporting Respondent Candidates’ bid for the public office of Supreme Court Justice of the 13th Judicial District of New York were filed with the City BOE.
On August 16, 2021, Petitioner filed his General Objection and Specifications of Objections to the Nominating Documents.
On August 24, 2021, the City BOE Commissioners declined to adopt a motion to declare the Nominating Documents invalid.
Action 1
On July 22, 2021, Petitioner commenced Action 1 to invalidate the Certificate to Fill Vacancies. In support, he argues that the Election Law requires that all judicial delegates be elected and certified. As no primary elections for the position of delegates for the Republican Judicial Convention of the 13th Judicial District occurred, in light of the City BOE's invalidation of the petitions designating candidates for said position, it is Petitioner's view that no "vacancy" was created; there was only a "void created by a complete failure of the elective process as mandated by statute." (Action 1, NYSCEF doc No. 38 ¶15).
On July 27, 2021, Respondent Officials answered and raised affirmative defenses (Action 1, NYSCEF doc No. 20). On August 3, 2021, Respondent Officials filed a motion to dismiss Action 1 on grounds that Petitioner failed to join necessary parties and lacks standing (Action 1, NYSCEF doc No. 27).
Action 2
On August 18, 2021, Petitioner initiated Action 2 to invalidate the Nominating Documents. In support, he avers that the Nominating Documents were a product of a "rogue" Judicial Convention held by judicial delegates who were not elected and certified by the City BOE at the preceding primary elections (Action 2, NYSCEF doc No. 1, ¶13).
On August 22, 2021, Respondents answered and raised affirmative defenses sounding in lack of jurisdiction and non-joinder of necessary parties (Action 2, NYSCEF doc No. 12).
On August 24, 2021, the City BOE took no action on Petitioner's General Objection and Specifications of Objections to the Nominating Documents.
On August 25, 2021, the Court held a Teams Conference to hear the parties in both Actions 1 and 2.
PROCEDURAL DISCUSSION
This Court is constrained to first address the procedural roadblocks that Petitioner must overcome before this Court can turn to the substantive issues raised in this proceeding.
A. Necessary Parties
Pursuant to CPLR § 1001, to obtain complete relief in an action before the courts, all necessary parties who might be inequitably affected by any judgment in the action must be named or joined in the case, thus:
"1001. Necessary joinder of Parties.
Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant."
In the case of Matter of Morgan v De Blasio (29 NY3d 559 [2017] ), petitioners brought a proceeding pursuant to Election Law 16-102, to invalidate the Working Families Party's designation of Bill de Blasio as candidate in its primary election for Mayor of the City of New York. The Supreme Court dismissed the proceeding based on petitioner's failure to name a necessary party, the Executive Board of the Working Families Party. The Appellate Division, Second Department affirmed. On appeal, the Court of Appeals agreed with the courts below, holding that "where petitioners assert that the Executive Board's certificate of authorization was invalid [ ], the Executive Board of the Working Families Party was a necessary party because a judgment on this issue could inequitably affect its interests."
A search of First Department caselaw revealed none involving dismissal of petitions filed pursuant to Election Law 16-102 for failure to join necessary parties. However, other appellate court decisions are insightful (see e.g. , Matter of Santos v Board of Elections in the City of New York, 154 AD3d 908 [2d Dept 2017] [Second Department upheld Supreme court's dismissal of the branch of petition seeking to investigate the canvassing of ballots for the nomination of the candidate of the Reform Party on the ground that the petitioner failed to join the candidate who won that nomination as a necessary party to the proceeding.]; Fulani v Smith , 181 AD2d 940 [3d Dept, 1992] [Third Department found dismissal of proceedings to declare invalid designating petitions naming respondents as Democratic Party candidates for office of President proper based on failure to join Congressional district delegate candidates who were pledged to support respondents. The Third Department held that the "district delegate candidates and the alternate would be ‘inequitably affected’ if the relief requested by petitioners was granted and that they were therefore necessary parties; the failure to join them thus requires dismissal of the proceedings."]); Plochoki v Onondaga County Bd. of Elections , 21 AD3d 710 [4th Dept 2005] [Fourth Department upheld dismissal of petition filed pursuant to Election Law 16-102 for petitioner's failure to name and serve a necessary party, the objector to his designating petition.])
Since an Election Law 16-102 proceeding is governed by a 10-day limitation period, joinder of necessary parties after the lapse of said time period is an impossibility and, therefore, is a fatal defect requiring dismissal. Thus, in Marin v Board of Elections (67 NY2d 634 [1986] ), the Court of Appeals held that "failure to join all of the persons elected to party office at the [ ] organizational meeting of the Liberal Party State Committee within the time required by Election Law § 16-102 (2) was a defect that could not be cured by amendment pursuant to CPLR 1003 after the expiration of the limitation period." (see also Jenkins v Board of Elections , 270 AD2d 436 [2d Dept 2000] [Second Department held that timely joinder of necessary parties was no longer possible as the 10-day limitation period under Election Law 16-102 had already passed.]; Buckley v Board of Elections , 265 AD2d 866 [Fourth Department held that failure to join all necessary parties "within the time required by Election Law § 16-102 (2) was a defect that could no longer be cured"]; Castracan v Colavita , 173 AD2d 924 [3d Dept 1991] [Third Department found that petitioners failed to join necessary parties, as petitioners named as parties only three of the judicial candidates named on the challenged certificates of nomination even though petitioners object in terms which indicate that they are challenging the certificates in their entirety and are requesting new judicial conventions. Third Department dismissed the petition, reasoning that "[t]he law is clear that failure to join necessary parties in a proceeding pursuant to the Election Law prior to the time prescribed for initiating such a proceeding requires dismissal of the petition."])
Action 1
Respondent Officials argue that the Petition in Action 1 fails to name all of the Republican Delegates named on the Certificate to Fill Vacancies who are allegedly necessary parties in this case. As the time for commencement of an action to invalidate has already expired, Respondent Officials submit that Petitioner's failure to join all necessary parties is a fatal defect, impossible to cure (Action 1, NYSCEF doc No. 27, ¶¶25-26).
In opposition, Petitioner maintains that Action 1 was commenced to challenge the action taken by Respondent Officials, as leaders of the Richmond County Republican Committee, in executing the Certificate to Fill Vacancies. Thus, Petitioner submits that there is "no necessity under these circumstances to join any other parties to this proceeding." (Action 1, NYSCEF doc No. 38, ¶16)
This Court finds that the rights of the omitted Republican Delegates not named as parties here would be inequitably affected, directly and indirectly, by the ultimate relief sought by Petitioner in Action 1. Thus, they should have been joined pursuant to CPLR § 1001.
The Petition in Action 1 seeks the following relief:
"(a) invalidating and declaring null and void the "Certificate to Fill Vacancies in Party Position(s) Republican Party Delegates to the Republican Judicial Convention Thirteenth Judicial District General Election - November 2, 2021" filed by Respondents Anthony Reinhart and Jessica Rios; and enjoining and restraining Respondent Board of Elections of the City of New York from compiling and certifying the roll of the 2021 Republican Judicial Convention of the 13th Judicial District from the 61st, 62nd, 63rd and 64th Assembly Districts of the State of New York."
While Petitioner insists that he is only challenging Respondent Officials’ act of executing the Certificate to Fill Vacancies, the invalidation of said certificate, as requested in (a) above, indirectly affects the rights of the persons named thereon as it effectively eliminates the basis for which they are currently acting as "delegates." The impact on them is clearer and more direct if this Court were to grant the relief requested in (b) as it would deprive the Republican Delegates named on the Certificate to Fill Vacancies from legitimizing their status through the City BOE certification under Section 9-200 and 9-202 of the Election Law.
As each and every Republican Delegate named on the Certificate to Fill Vacancies would be aggrieved by an unfavorable judgement in Action 1, they should be given an opportunity to be heard. Unfortunately, since the last day to commence an action pursuant to Election Law 16-102 has already passed , Petitioner's failure to join all the Republican Delegates is a fatal defect which requires this Court to dismiss the Petition (see e.g. , Sparrow v Riddick , 303 AD2d 429 [2d Dept 2003], (citing Marin v Board of Elections , 67 NY2d 634 [1986] ); see also Buckley v Board of Elections , 265 AD2d 866 [4th Dept 1999] ).
Section 16-102 (2), in part, provides that "[a] proceeding with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within ten days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee."
Petitioner himself concedes that "[u]pon information and belief, July 26, 2021 is the last day to institute this proceeding." (Action 2, NYSCEF doc No. 1, § 5)
Action 2
In Action 2, Respondents identify three categories of necessary parties that Petitioner failed to name as additional respondents:
The New York State Board of Elections ("the State BOE") and/or the Commissioners of the State BOE;
The New York Republican State Committee and/or its Chairman; and Each and every Republican Delegate named on the Certificate to Fill Vacancies.
With respect to Category (1), Respondents argue that the State BOE and/or the Commissioners are necessary parties as they issue roll calls to be used in conducting judicial nominating conventions, including the judicial nominating conventions that take place in the City of New York such as the convention at issue here.
With respect to Category (2), Respondents argue that the New York Republican State Committee and/or its Chairman are necessary parties as invalidation of the method of selection of its delegates to the Judicial District Convention would inequitably affect the Committee's interest (see Regan v New York State Board of Elections, 207 AD3d 647 [3rd Dept 1994]).
With respect to Category (3), Respondents argue that the rights of the Judicial Delegates named in the Certificate to Fill Vacancies are inextricably interwoven with those of the parties named in Action 2, and therefore, they should have been named as necessary parties pursuant to CPLR 1001, which provides that a person shall be made a party to an action where they may be inequitably affected by a judgment.
In response to the argument advanced by Respondents under Category (1), Petitioner submitted an affirmation by Brian Quail , attorney for State BOE Commissioners Douglas A. Kellner and Andrew J. Spano (NYSCEF doc No. 15). Mr. Quail advises that the State BOE had no legal obligation to publish the roll of delegates from the Thirteenth Judicial District as the "legally relevant compilation is, exclusively, the [City Board of Elections] compilation. [The State BOE]’s rolls are nothing more than a reflection of that, and in this instance, gratuitously complied." (id. at ¶ 3)
The affirmation of Mr. Quail was submitted under the Reinhart action in Albany County (Index No. 906219/2021) While not submitted as part of either Action 1 or 2, it is permissive for this Court to take judicial notice thereof.
Mr. Quail further noted that in the calendar year 2021, the State Board did not compile a list of Republican Party Judicial Delegates from the Thirteenth Judicial District as none were elected or deemed elected at the June 22, 2021 primary election. Mr. Quail also references an affirmation filed by Respondents’ counsel under the Reinhart action (Index No. 906219/2021, NYSCEF doc No. No. 25) that reflects no compilation of names on the State Board Republican Roll Call Report as no delegate or alternate candidates were certified for the Republican judicial convention by the New York City Board of Elections.
In response to the argument advanced by Respondents under Category (2), Petitioner maintains that the New York Republican State Committee and/or its chairman are not necessary parties as the Nominating Documents challenged in this proceeding were executed by the chairperson and secretary of the Richmond County Republican Committee in a convention held under its auspices.
Finally, responding to the argument advanced by Respondents under Category (3), Petitioner argues that the only necessary parties here are the two judicial candidates whose candidacies are being challenged, and the people who authored their nominations, i.e. , the Richmond County Republican Committee and its chairperson.
The Court finds that neither the State BOE nor the New York Republican State Committee and/or its chairman are necessary parties here. However, the Court finds merit in Respondent's position that the each and every Judicial Delegate named on the Certificate to Fill Vacancies are.
As pointed out by Mr. Quail in his affidavit, Election Law 9-200(2) exempts the 13th Judicial District from those judicial district delegates that must be certified to the State BOE. Similarly, Election Law 9-202 provides the State BOE shall compile the roll of each convention from the certified statements of the votes for delegates and alternates elected to a state or judicial district convention of any party "other than a judicial district convention in the [ ] thirteenth judicial district[ ]." Therefore, the State BOE is not a necessary party pursuant to Election Law 9-200(2) and 9-202.
Election Law 9-200 states the following in part:
"The board forthwith upon the completion of the canvass for members of a state committee and delegates and alternates to a national, state or judicial district convention, shall transmit to the state board of elections a certificate stating the name and residence of each member of a state committee and delegate and alternate elected from a district wholly within the jurisdiction of such board, except that, in respect to a judicial district convention in the first, second, eleventh, twelfth and thirteenth judicial districts , the board of elections, instead of transmitting such certificate, shall compile the roll of the convention and transmit it to the chairman or secretary of the committee which, by party rules, is empowered to fix the time and place of the convention." (Emphasis added)
The participation of the New York Republican State Committee and/or its chairman is likewise not necessary. It is clear from the facts that said committee and/or its chairman had no participation or involvement in the action being challenged in this proceeding, i.e. , the execution and filing of the Nominating Documents which were carried out by the Richmond County Republican Committee. While Respondents argue that the New York Republican State Committee designated the convenor of the convention in question, Petitioner correctly pointed out that the convenor himself is a member of the Richmond County Republican Committee.
However, the Court finds that, in light of the relief sought and the arguments put forward by Petitioner, each and every Republican Delegate are necessary parties in Action 2.
In Action 2, Petitioner seeks the following:
"(a) Invalidating and declaring null and void that certain Certificate of Nomination and of the Committee to Fill Vacancies purporting to nominate Ronald Castorina Jr. and Paul Marrone Jr. as Republican Party Candidates for the Public Office of Justice of the Supreme Court of the State of New York, Thirteenth Judicial District, Richmond County, and Acceptances of Nomination of such candidates and Official Call of the Thirteenth Judicial District Republican Convention, all of which documents were filed with the Board of Elections;
(b) Declaring inconsequential, irrelevant and moot those certain Minutes of the 2021 Thirteenth Judicial District Republican Convention and New York Republican State Committee list of Convenors of the 2021 Judicial Conventions;
(c) Enjoining and restraining the Board of Elections in the City of New York from printing and placing the Respondent Candidates’ names upon the official ballots and voting machines to be used in the upcoming General Election to be held on November 2, 2021."
It is clear from the relief requested in (a) above that Petitioner is seeking not just the invalidation of the Certificates of Nomination of Respondent Candidates, but also the invalidation of the Certificate to Fill Vacancies — the very same relief he seeks in Action 1. Thus, the discussion in Action 1 on why the Republican Delegates are necessary parties to an action granting this relief applies here.
Even if this Court limits the relief sought by Petitioner in Action 2 to the invalidation of the Nomination Documents, the Court finds that to grant this relief necessarily calls for the invalidation of the Certificate to Fill Vacancies as Petitioner's arguments on why the Nomination Documents are invalid are bottomed on the alleged invalidity of the Certificate to Fill Vacancies.
In Action 2, Petitioner alleges that the Nominating Documents are "invalid and without force and effect in that no valid Republican Party Judicial Convention was and could have been convened given the facts and applicable law herein." (Action 2, NYSCEF doc No. 5, ¶2) In support of this position, Petitioner reiterates his argument in Action 1 that the Election Law requires that a judicial convention be "constituted by the election at the preceding primary of delegates and alternate delegates" Petitioner repeats his view that no such delegates were elected and certified here and, thus, the delegates selected and named on the Certificate to Fill Vacancies had "no legal authority to conduct a Republican Party Judicial Convention" (Action 2, NYSCEF doc No. 5, ¶12).
Therefore, in seeking to invalidate the Nominating Documents, Petitioner is implicitly but necessarily asking this Court to make a determination on whether the Republican Party Judicial Convention was validly constituted. This, in turn, requires a determination on whether the Republican Delegates are validly holding their seats as such — the exact same issue presented in Action 1. Given Petitioner's line of argument, the Court cannot proceed to invalidate the Nominating Documents without ultimately invalidating the status of the delegates who held the convention where Respondent Candidates were nominated. Therefore, a judgment in Action 2 would also affect the interests of the Republican Delegates who were joined as parties to neither action Unfortunately, the last day to commence an action pursuant to invalidate the Nominating Documents pursuant to Election Law 16-102 was August 21, 2021. Thus, Petitioner's failure to join all the Republican Delegates is a fatal defect, impossible to cure.
Petitioner alleges that he "[was] informed by counsel and believes that the last day to institute [the] proceeding is August 21, 2021." (Action 2, NYSCEF doc No. 1, ¶9)
B. Standing
The Court next turns to the procedural issue of standing.
Respondent Officials in Action 1 contend that Petitioner, who is only a registered voter and enrolled Republican in Assembly District 64, lacks standing to challenge the Certificate to Fill Vacancies and the Nominating Documents insofar as they pertain to Assembly Districts 61, 62 and 63 (Action 1, NYSCEF doc Nos. 27, ¶¶30-33; 43, ¶¶63-66; Action 2, NYSCEF doc No. 13, ¶¶63-66).
Petitioner failed to address this issue in his papers. However, during the August 25, 2021 Teams Conference, Petitioner orally argued that his challenge is against the execution of the Certificate to Fill Vacancies, and not against the delegates named on said certificate. Petitioner orally acknowledged that if his challenge were directed against the delegates, he would have no standing insofar as his petition pertains to Assembly Districts 61, 62 and 63.
"A condition precedent to commencing a proceeding as an objector pursuant to Election Law § 16-102 is compliance with the requirements of section 6-154, including that the objector be a "voter registered to vote for such public office." ( Matter of Augustino v Bernstein , 172 AD3d 1946 [4th Dept 2019] ) Thus, a petition is dismissed when the petitioner is not enrolled to vote in the same election district as any of the candidates (see e.g. , Matter of Luthmann v Gulino , 131 AD3d 636 [2d Dept 2015] [Second Department upheld dismissal, holding that "[t]he petitioner was not enrolled to vote in the election district in which candidate resided and, in fact, was not enrolled to vote in the same assembly district. Therefore, [petitioner] lacked standing to challenge the designating petition."]); Matter of Dekom v Trani , 109 AD3d 769 [2d Dept 2013] [The Second Department held that "the appellant lacked standing to challenge the designating petitions with respect to all of the challenged candidates except the two candidates from the same election district in which the appellant was enrolled to vote."]).
The Court rejects Petitioner's argument that he has standing because his challenge is not against the Republican Delegates. As explained in Part I. A (Necessary Parties), invalidating the Certificate to Fill Vacancies necessarily invalidates the status of the all the Republican Delegates named thereon, including those from Assembly Districts 61, 62 and 63.
As Petitioner resides at 544 Riga Street, Staten Island, New York, which is located within the 64th Assembly District, Petitioner is not qualified to vote in Assembly Districts 61, 62 and 63. Therefore, his Petition is dismissible insofar as it pertains to Assembly Districts 61, 62 and 63.
Counsel for Respondents in Action 2 confirmed at the August 25, 2021 Teams Conference that they are not seeking to dismiss Action 2 on the ground that Petitioner lacks standing.
Based on the foregoing, the Court concludes that Action 1 must be dismissed for Petitioner's failure to join the Republican Delegates as necessary parties and Petitioner's lack of standing to challenge the Certificate to Fill Vacancies as it pertains to delegates from the 61st, 62nd and 63rd Assembly Districts. Action 2 must also be dismissed for Petitioner's failure to join the Republican Delegates as necessary parties whose interests would necessarily be affected with the invalidation of the Nominating Documents.
Notwithstanding the fact that the Court finds that the petitions in Actions 1 and 2 are dismissible on procedural grounds, the Court is cognizant that Election Law cases are under stringent time restrictions and, therefore, the Court is inclined to address the substantive issues presented here. The Court does so aware of the fact that advisory opinions are frowned upon. During the August 25, 2021 Teams Conference, counsel for the City BOE directed the Court's attention to the case of Parascando v. Monheit (183 AD3d 671, 673 [2nd Dept 2020] ) in which the Second Department "castigated" the Supreme Court for not having addressed all issues raised in the petition. The Court then inquired as to whether either parties object to the Court addressing the substantive issues presented in Actions 1 and 2; neither side voiced any objections. Thus, the Court now turns to the merits of the petitions.
SUBSTANTIVE DISCUSSION
A. Action 1
In Action 1, Petitioner seeks an order:
"(a) invalidating and declaring null and void the "Certificate to Fill Vacancies in Party Position(s) Republican Party Delegates to the Republican Judicial Convention Thirteenth Judicial District General Election - November 2, 2021" filed by Respondents Anthony Reinhart and Jessica Rios; and
(b) enjoining and restraining Respondent Board of Elections of the City of New York from compiling and certifying the roll of the 2021 Republican Judicial Convention of the 13th Judicial District from the 61st, 62nd, 63rd and 64th Assembly Districts of the State of New York."
Petitioner argues that the Certificate to Fill Vacancies should be invalidated as it is not authorized by the New York State Election Law and is in fact in direct contravention of said Election Law, which requires Judicial Delegates/Alternate Delegates to be elected at a primary election but does not authorize a Certificate to Fill Vacancies if there was no election in the first place. Petitioner argues that as no Judicial Delegates/Alternate Delegates were elected in the June 22, 2021 primary election, no vacancy exists in those positions that would allow the filing of the Certificate to Fill Vacancies.
In opposition, Respondent Officials argue that the Certificate to Fill Vacancies is presumptively valid given that it was filed with the City BOE and thus can only be invalided by an affirmative act of the City BOE or this Court. Respondent Officials argue that as the City BOE has accepted the Certificate to Fill Vacancies, the fully constituted slate of Judicial Delegates named in said Certificate have a reasonable expectation that the City BOE has complied with its responsibilities under Election Law 9-200 and 9-202 to promulgate and compile delegates. Respondent Officials also note that at the August 3, 2021 Public Meeting of the City BOE, the City BOE accepted the filing of the Certificate of Vacancies. The Certificate was subject to objections at the August 3 meeting, but no motion for the same was made, nor was any action taken by the City BOE with respect to invalidating the Certificate. Respondent Officials thus conclude that the Judicial Delegates named in the Certificate to Fill Vacancies are indeed the Party-chosen, duly constituted Judicial Delegates in and for the Republican Party in the 13th Judicial District.
B. Action 2
In Action 2, Petitioner seeks an order:
"(a) Invalidating and declaring null and void that certain Certificate of Nomination and of the Committee to Fill Vacancies purporting to nominate Ronald Castorina Jr. and Paul Marrone Jr. as Republican Party Candidates for the Public Office of Justice of the Supreme Court of the State of New York, Thirteenth Judicial District, Richmond County, and Acceptances of Nomination of such candidates and Official Call of the Thirteenth Judicial District Republican Convention, all of which documents were filed with the Board of Elections;
(b) Declaring inconsequential, irrelevant and moot those certain Minutes of the 2021 Thirteenth Judicial District Republican Convention and New York Republican State Committee list of Convenors of the 2021 Judicial Conventions;
(c) Enjoining and restraining the Board of Elections in the City of New York from printing and placing the Respondent Candidates’ names upon the official ballots and voting machines to be used in the upcoming General Election to be held on 3 November 2, 2021."
Petitioner argues that the Certificate of Nomination and the appurtenant documents are invalid and without force and effect as no valid Republican Party Judicial Convention could have properly been convened under the Election Law. Petitioner argues that a list of proposed delegates to the Republican Party Judicial Convention, Thirteenth Judicial District, was not compiled pursuant to the Election Law 6-124 and 6-126 and thus there was no legal authority to conduct a Judicial Convention in 2021. However, the Republican Party nevertheless proceeded to hold a Judicial Convention wherein it purportedly nominated the Respondent Candidates for election. Petitioner thus concludes that said Respondent Candidates nominating documents are the product of a "rouge" Judicial Convention. Petitioner further argues that the nominating documents contained numerous prima facie defects, including a missing cover sheet, and thus are void ab initio.
In opposition, Respondents argue that the Election Law 6-124 and 6-126 provide for more than one way to constitute delegates to a Judicial Convention, and thus the failure to elect judicial delegates/alternate delegates at the June 2021 primary election was not fatal to the Republican Party's ability to constitute delegates at the Convention. Respondents also argue that the prima facie defects that Petitioner identified in the nominating documents are not fatal as the candidates herein are nominees for internal "Party Positions," not candidates for public office, and therefore the strict requirements under the Election Law regarding defects in nominating papers are inapplicable. Respondents conclude that this is an "internal Political Party matter" and therefore should not be subject to Court intervention.
Election Law 6-124 provides, in part, as follows:
A judicial district convention shall be constituted by the election at the preceding primary of delegates and alternate delegates, if any, from each assembly district or, if an assembly district shall contain all or part of two or more counties and if the rules of the party shall so provide, separately from the part of such assembly district contained within each such county. The delegates certified to have been elected as such , in the manner provided in this chapter, shall be conclusively entitled to their seats, rights and votes as delegates to such convention. When a duly elected delegate does not attend the convention, his place shall be taken by one of the alternates, if any, to be substituted in his place, in the order of the vote received by each such alternate as such vote appears upon the certified list and if an equal number of votes were cast for two or more such alternates; the order in which such alternates shall be substituted shall be determined by lot forthwith upon the convening of the convention. If there shall have been no contested election for alternate, substitution shall be in the order in which the name of such alternate appears upon the certified list, and if no alternates shall have been elected or if no alternates appear at such convention, then the delegates present from the same district shall elect a person to fill the vacancy." (emphasis added)
With respect to both actions, the Court finds that it cannot validate a procedure created by a political party outside the strictures of the Election Law. The Court cannot override the express language and guidelines of the Election Law.
Although ancient, a case decided 44 years ago, Wager v New York State Board of Elections (59AD2d 729 [2d Dept 1977], aff'd 42 NY2d 1100 [1977] ).), is on point and instructive. Wager interpreted the then-controlling Election Law 132, subsequently supplanted by Election Law 6-124.
In Wager , no designating petitions were filed with the Suffolk County Board of Elections for Conservative Party delegates to the Conservative Party Judicial Convention in the Tenth Judicial District. Thus, the Suffolk County Board of Elections’ letter certifying to the State Board of Elections the names of persons for all public offices included no names for delegates or alternates to the Conservative Party Judicial Convention in the Tenth Judicial District. Accordingly, no names for delegates to any judicial convention appeared on the ballots in the Suffolk County primary elections.
Despite this, the New York State Conservative Party purportedly "authorized" a list of delegates to the Tenth Judicial District Conservative Party Convention, which list was certified by the Suffolk County Board of Elections. Thereafter, a Conservative Party Judicial Convention for the Tenth Judicial District was held wherein five party candidates for the office of Justice of the Supreme Court for the Tenth Judicial District were nominated. Wager filed his objections and sought invalidation of the nominations in court. Supreme Court Suffolk County dismissed Wager's petition, but the Appellate Division, Second Department reversed. In holding the nominations invalid, the Second Department reasoned as follows:
"Subdivision 2 of section 132 of the Election Law provides that a judicial district convention shall be constituted by the election of delegates at the proceeding primary . We construe such language to mean, in this case, the primary election held on September 8, 1977. Since no designating petitions were filed by the Conservative Party for delegates to the Judicial Convention from Suffolk County, no such delegates could be duly elected during the primary. We find no authority, nor is there any supplied by the respondents, to convince us that certification by the Suffolk County Board of Elections of the approved nominees for delegates by the executive director of the New York State Conservative Party would be a valid alternative procedure for acquiring delegates."
(emphasis added).
The Second Department rejected Respondents’ argument that the Election Law allows substitution of delegates by certified alternates or, in the absence of alternates, by persons selected by delegates to fill said vacancies. According to the Second Department, the provision on substitution and/or filling of vacancies is "applicable only in a situation where there are vacancies of duly elected delegates" but, in that case, "[t]here were no elected Conservative Party delegates from Suffolk County to the Tenth Judicial District Convention." Consequently, the Second Department declared the 18 certified delegates from Suffolk County to have no authority to act as such.
Similar to Wager , here it is undisputed that no candidates for the position of delegates for the Republican Judicial Convention of the 13th Judicial District appeared on the ballots on the June 22, 2021 primary elections. This resulted from the City BOE's invalidation of the designating petitions filed by the Richmond County Republican Committee for its failure to file a Cover Sheet. Like the New York State Conservative Party in Wager, the Richmond County Republican Committee here created a procedure outside of the Election Law to name "unelected" delegates to its Judicial Convention.
Therefore, guided by Wager , this Court finds that the Richmond County Republican Committee had no authority to name judicial delegates who were never elected at the June 22, 2021 primary elections. "Unelected" persons cannot constitute delegates to a judicial convention under the clear wording of Election Law 6-124. Accordingly, the Certificate to Fill Vacancies is invalid and cannot form as basis for the Republican Delegates named thereon to act as such.
In more recent times, the Court of Appeals has reaffirmed that the rules promulgated by the Election Law generally require strict compliance. In Matter of Seawright v The Board of Elections in the City of New York (35 NY3d 227 ), the Court of Appeals stated:
"Strict compliance with the Election Law, we have held, "reduces the likelihood of unequal enforcement," emphasizing that "[t]he sanctity of the election process can be best guaranteed through uniform application of the law" (Matter of Gross v Albany County Bd. of Elections , 3 NY3d 251,258 ... [2004] [internal quotation marks omitted]). Moreover, the provisions of the Election Law "make it crystal clear that the time limitations for filing are mandatory" and "foreclose the judiciary from fashioning exceptions, however reasonable they might" appear to be (Matter of Baker , 42 NY2d at 107 4 [internal quotation marks omitted]).
(id. at 232-233).
In the instant case, Seawright guides this Court in determining that the actions taken by the Richmond County Republican Committee were outside the bounds of the Election Law and therefore cannot be validated.
Seawright is further instructive regarding Petitioner's argument that the failure of Respondent Officials or those acting on their behalf to file a Cover Sheet with the designating petitions of the Judicial Candidates was a fatal flaw that may not be excused by this Court.
Respondents argue that Seawright is inapplicable to the circumstances herein given that Seawright involved a candidate for public office, not a candidate for an internal party position. Respondents thus conclude that failure to file a cover sheet was not fatal and has no impact upon the party's self determination of its own Party Positions.
In making this argument, Respondents overlook the plain language of Election Law 1-602, which the Court of Appeals directly quoted when issuing its holding:
"The failure to file any petition or certificate relating to the designation or nomination of a candidate for party position or public office or to the acceptance or declination of such designation or nomination within the time prescribed by the provisions of this chapter shall be a fatal defect"
(emphasis added).
In applying Election Law 1-602, the Court of Appeals deemed that the word "petition" also encompasses papers that are required in connection with a petition, including a cover sheet ("[W]e have repeatedly held that the failure to timely file required papers in connection with a designating petition, including a cover sheet or certificate of acceptance, is a ‘fatal defect’ that cannot be excused") ( 35 NY3d at 232 [citations omitted]).
The Court thus finds Respondents’ argument that Seawright is not controlling to be unpersuasive and unsupported. Similarly without merit is Respondents’ argument that they had the authority to name delegates pursuant to its own party rules and that the Court should not interfere with the internal workings of a political party (Action 1, NYSCEF doc No. 27, ¶15). The Court rejects this argument as party rules cannot prevail over clear directives of the Election Law (see e.g. , Kahler v McNab , 48 NY2d 625 [1979] [The Court appeals held that duly adopted rules of a political party should be given effect only in the absence of inconsistent statutory directive.]). It is one thing for a political party to create its own rules, but it is another thing to ask the City BOE and this Court to recognize such rules in the face of conflicting provisions of the Election Law.
CONCLUSION
Based on the foregoing, and in accordance with the "So-Ordered" Transcript August 25, 2021 (Terry Ann Volberg, Court Reporter), it is hereby
ORDERED that the Petition of John Clinton (Index No. 156842/2021) seeking an order: (i) invalidating and declaring null and void the "Certificate to Fill Vacancies in Party Position(s) Republican Party Delegates to the Republican Judicial Convention Thirteenth Judicial District General Election - November 2, 2021" filed by Respondents Anthony Reinhart and Jessica Rios; and (ii) enjoining and restraining Respondent Board of Elections of the City of New York from compiling and certifying the roll of the 2021 Republican Judicial Convention of the 13th Judicial District from the 61st, 62nd, 63rd and 64th Assembly Districts of the State of New York, (Motion Seqs. 001 and 002) are dismissed; it is further
ORDERED that the motion of Respondents Anthony Reinhart and Jessica Rios seeking an order dismissing this petition on procedural grounds pursuant to CPLR 3211(a)(3) and 3211(a)(10) (Motion Seq. 003) is granted; and it is further
ORDERED that were the Court to reach the substantive issues raised in the Petition (Index No. 156842/2021), Petitioner's application for relief as set forth above would be granted; and it is further
ORDERED that Petition of John Clinton (Index No. 157708/2021) seeking an order: (i) invalidating and declaring null and void the Certificate of Nomination and of the Committee to Fill Vacancies purporting to nominate Ronald Castorina Jr. and Paul Marrone Jr. as Republican Party Candidates for the Public Office of Justice of the Supreme Court of the State of New York, 13th Judicial District, Richmond County, Acceptances of Nomination of such candidates and Official Call of the 13th Judicial District Republican Convention filed with the City BOE; (ii) declaring inconsequential, irrelevant and moot those certain minutes of the 2021 13th Judicial District Republican Convention and New York Republican State Committee list of Convenors of the 2021 Judicial Conventions; and (iii) enjoining and restraining the City BOE from printing and placing the Respondent Candidates’ names upon the official ballots and voting machines to be used in the upcoming General Election to be held on November 2, 2021 (Motion Seq. 001) is dismissed; and it is further
ORDERED that were the Court to reach the substantive issues raised in the Petition (Index No. 157708/2021), Petitioner's application for relief as set forth above would be granted; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that the counsel for Respondent Officials shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on all parties.