Opinion
2005-2153.
Decided October 5, 2005.
James E. Walsh, Schenectady, New York, Attorney for Petitioner.
John Joseph N. Ciampoli, Albany, New York, Attorney for Objectors.
Mark M. Rider, Saratoga County Attorney, Saratoga County Municipal Center, Ballston Spa, New York, Attorney for Respondents.
In this proceeding petitioner, Thomas J. Curley, seeks judgment validating a petition for his nomination as the candidate of the Safe City Party for the Office of Commissioner of Public Safety of the City of Saratoga Springs at the general election to be held on November 8, 2005.
On August 23, 2005, petitioner filed with the Saratoga County Board of Elections (hereafter Board) an independent nominating petition with 88 sheets containing 588 signatures. On August 26, 2005, respondents, Rose Zacek, Matthew Hogan, and Jennifer Hogan, filed with the Board written objections to the petition and later, on September 1, 2005, filed specifications. On September 2, 2005, the Board sustained respondents' objections to 154 signatures leaving 434 signatures in the count, 46 short of the 480 minimum needed, and thus the Board invalidated the nominating petition.
In his petition under Section 16-102 of the Election Law, petitioner challenged the propriety of the Board's invalidation of all 154 signatures, but impliedly conceding the correctness of the Board's invalidation of 87 signatures, petitioner at trial limited his proof to 67 signatures which he sought to have included in the count. These signatures can be divided into two categories: the first, 60 signatures contained on sheets which the Board believed had fatal defects in their subscribing witness statements, and the second, 7 signatures of individuals who the Board believed were either not registered to vote or whose residences addresses differed from the addresses in the Board's voter registration records.
As an initial matter, the Election Reform Act of 1992 (L 1992, Ch. 79) and the Ballot Access Law of 1996 (L 1996, Ch. 79) manifested the Legislature's intent to remove technical barriers to a proposed candidacy not tainted by fraud or wrongdoing. The use, in the not too distant past, of "inflexible rules" and "hypertechnical requirements" to inflict fatal blows to designating or nominating petitions, which though not perfect, are not tainted by misdeed, is now disfavored by both statute and case law. see Matter of Etkin v. Thalmann, 287 AD2d 775 (3rd Dept 2001); Matter of DiStefano v. Kiggins, 254 AD2d 688 (4th Dept 1988); Matter of Collins v. Kelly, 253 AD2d 541 (3rd Dept 1998); Matter of Cozzolino v. Columbia County Bd. of Elections, 218 AD2d 921 (3rd Dept 1995), lv denied 86 NY2d 704 (1995); Matter of Hogan v. Goodspeed, 196 AD2d 675 (3rd Dept 1993), affd in part, dismissed in part 82 NY2d 710 (1993).
First addressed are the sheets which were rejected in their entirety.
The Board disqualified the 20 signatures on sheets 4, 66, and 78 because there were inserted the words, "The Town of Gansevoort", in the WITNESS IDENTIFICATION INFORMATION section, and the Board disqualified 10 signatures on sheet 5 because there were inserted the words, "City of Saratoga Springs", in the WITNESS IDENTIFICATION INFORMATION section, on the ground that the subscribing witness to each sheet resided neither in the Town of Gansevoort (there is no such municipality in Saratoga County) nor in the City of Saratoga Springs.
The failure to insert the correct town or city of the witness's residence in the WITNESS IDENTIFICATION INFORMATION section constitutes a technical violation of Election Law § 6-140 insufficient, in and of itself, to justify invalidation of the four sheets particularly if, as here, the complete and accurate residence address of the subscribing witness appears in the body of the STATEMENT OF WITNESS located above the witness's signature, and there is no hint of fraud or other wrongdoing affecting the integrity of the sheets see Matter of Berkowitz v. Harrington, 307 AD2d 1002 (2nd Dept 2003) [designating petition — town or city in witness identification information section left blank — not fatal]; Matter of Hurst v. Board of Elections of Broome County, 265 AD2d 590 (3rd Dept 1999) [nominating petition — town or city in witness identification information section left blank — not fatal]. While, here, an incorrect town or city, rather than no town or city, was placed on the four sheets in the WITNESS IDENTIFICATION INFORMATION section, the STATEMENT OF WITNESS in all sheets contained sufficient information to readily and easily identify the witness and to determine that he was a voter duly registered in New York and that he resided in the Town of Wilton within the Gansevoort 12831 zip code area and that he was otherwise qualified to be a witness. see Matter of Pulver v. Allen, 242 AD2d 398 (3rd Dept 1997), lv denied 90 NY2d 805 (1997). The 30 signatures contained on sheets 4, 5, 66, and 78 should have been included in the count.
The Board disqualified the 9 signatures on sheet 10 and the 1 signature on sheet 46 on the ground that the respective subscribing witnesses did not initial alterations made in the STATEMENT OF WITNESS. The witness to sheet 10 crossed out the handwritten name and address of her sister and wrote in her own name and address in the STATEMENT OF WITNESS. At trial, the witness to sheet 10 testified that she had run out of sheets and took a sheet from her sister who had already written in her name and address. The witness testified credibly that she made these alterations before collecting the 9 signatures on the sheet and before she signed the STATEMENT OF WITNESS but did not initial the alteration. At trial, the witness to sheet 46 testified that she crossed out the zero from the number "10" in the box in the STATEMENT OF WITNESS. She testified credibly that she caught the mistake before she signed the petition, crossed out the zero so that the correct number "1" was left in the box, but forgot to initial the alteration.
As a general rule, alterations made to a STATEMENT OF WITNESS will invalidate all signatures on the sheet unless the alterations were initialed and the reasons for them explained. Jonas v. Velez, 65 NY2d 954 (1985); Magee v. Camp, 253 AD2d 573 (3rd Dept 1998). On sheets 10 and 46, none of the changes was initialed. However, at the trial, each witness testified convincingly about how and the reasons why the changes were made. Respondents' contend that the 10 signatures on these 2 sheets should nonetheless not be counted. Respondents wrongly contend that the witness's failure to have initialed alterations precludes that witness from later testifying in court to explain the alterations. Otherwise, the right, clearly available to an aggrieved candidate, to have a witness explain in court the reasons why he or she made alterations could never be pursued, and petitions with uninitialed changes could never be validated. Such is simply not the state of the law. Gartner v. Salerno, 74 AD2d 958 (3rd Dept 1980), lv denied 49 NY2d 704 (1980) approved a lower court's reliance on mere affidavits, as opposed to in-court testimony from witnesses to a designating petition in which they explained alterations which had not been initialed. Quindar v. Pierce, 254 AD2d 690 (4th Dept 1998), in which a designating petition was invalidated because "alterations [to a witness] statement [were] neither initialed nor explained by the subscribing witness" is not to the contrary. Once again, the witnesses to sheets 10 and 46 offered satisfactory and credible explanations, devoid any suggestion of fraud or wrongdoing, for the alterations. The 9 signatures on sheet 10 and the 1 signature on sheet 46 should have been included in the count.
The Board invalidated the 10 signatures on sheet 71 and the 3 signatures on sheet 76 on the ground that the respective witness's address listed in the STATEMENT OF WITNESS did not match the address at which each is registered to vote. To be a witness to a nominating petition, a person need only be registered to vote in the state and not otherwise be disqualified. It is now well-established that a witness need not even reside in the political unit in which the office is to be voted for. Lerman v. Board of Elections in City of New York, 232 F3d 135 (2nd Cir 2000), cert denied 533 US 915; Matter of LaBrake v. Dukes, 96 NY2d 913 (2001), affg 286 AD2d 554 (3rd Dept 2001). Here, both witnesses listed in the STATEMENT OF WITNESS their residence addresses, both within the City of Saratoga Springs, and the Board conceded that the two witnesses were registered voters. The ground cited to disqualify them as witnesses, that their residence addresses did not match their addresses on file with the Board, would add a further qualification not established by statute or case law. cf. Robelotto v. Burch, 242 AD2d 397 (3rd Dept 1997); Bray v. Marsolais, AD3d, 2005 WL 2171206 (3rd Dept 2005). The 10 signatures on sheet 71 and the 3 signatures on sheet 76 should have been included in the count.
The 8 signatures on sheet 88 were correctly invalidated because the STATEMENT OF WITNESS was not dated. The date is a matter of prescribed content, strict compliance is required, and its omission is not a technical violation that can be overlooked. Matter of DeBerardinis v. Sunderland, 277 AD2d 187 (1st Dept 2000).
The second prong of petitioner's proof at trial dealt with 7 individual signatures scattered throughout the petition. The Board properly invalidated the signature on sheet 38, line 1, on the ground that the signatory was not registered to vote because he did not register to vote until after he had signed the petition. The Board also disqualified the 6 signatures at sheet 27 line 3; sheet 45 line 8; sheet 50 line 4; sheet 70 line 8; sheet 85 line 8; and sheet 86 line 2 on the ground that the residence addresses of the signatories did not match their addresses on file with the Board. It is well-established that this difference does not disqualify people, who are registered to vote, from signing a designating or nominating petition. Robelotto, supra; Bray, supra. While these signatories did not testify at trial and affidavits, objected to at trial, were not admitted into evidence, the Board's records, consisting of voter registration cards which were admitted into evidence, establish that these 6 signatories were duly registered to vote in the City of Saratoga Springs. Their 6 signatures should have been included in the count.
To recapitulate, the following 59 signatures should have been included in the count:
Sheet/Line Number
410
510
109
461
666
7110
763
784
27/31
45/81
50/41
70/81
85/81
86/21
The validation of these 59 signatures increases to 493 the number valid signatures, more than the 480 required.
The petition is granted to the extent indicated and otherwise denied, without costs, and the independent nominating petition of Thomas J. Curley as the candidate of the Safe City Party for the Office of Commissioner of Public Safety of the City of Saratoga Springs is declared valid, and the Saratoga County Board of Elections is directed to place Thomas J. Curley as the candidate of that party for that office on the ballot for the general election on November 8, 2005.
This memorandum shall constitute the decision, order and judgment of the court. All papers, including this decision, order and judgment, are being returned to petitioner's counsel. The signing of this decision, order and judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
So Ordered and Adjudged.