Opinion
88018
05-03-2019
In the Matter of the Application of William J. GABLER, Petitioner v. CATTARAUGUS COUNTY BOARD OF ELECTIONS, Kevin C. Burleson in his official capacity a Democratic Commissioner and Cortney L. Spittler, in her official capacity a Republican Deputy Commissioner, Respondent, and James K. Johnston. Respondent.
Lippes Mathias Wexler Friedman, LLP, Dennis C. Vacco Esq., Buffalo & Stacey L. Moar, Esq., of counsel, Attorneys for William J. Gabler, Petitioner-Candidate Jerome D. Schad, Esq., Attorney for Commissioner Kevin C. Burleson and Deputy Commissioner Cortney L. Spittler, Constituting the Cattaraugus County Board of Elections, Respondent James J. Johnston, Respondent-Objector pro se
Lippes Mathias Wexler Friedman, LLP, Dennis C. Vacco Esq., Buffalo & Stacey L. Moar, Esq., of counsel, Attorneys for William J. Gabler, Petitioner-Candidate
Jerome D. Schad, Esq., Attorney for Commissioner Kevin C. Burleson and Deputy Commissioner Cortney L. Spittler, Constituting the Cattaraugus County Board of Elections, Respondent
James J. Johnston, Respondent-Objector pro se
Dennis E. Ward, J.
DECISION AND JUDGMENT
BACKGROUND
The Petitioner-Candidate William J. Gabler, in this proceeding pursuant to Election Law § 16-102, seeks to validate his Republican Party designating petition for the public office of Salamanca City Court Judge. Such document was timely filed with the Respondent Cattaraugus County Board of Elections (hereinafter, "Board").
Pursuant to Election Law § 6-154(2), the Respondent James K. Johnston timely filed general and specific objections against such designating petition.
At a meeting held on Wednesday April 17, 2019, the Board unanimously determined that the subject designating petition contained an insufficient number of valid signatures, as required by Election Law § 6-136(2). The Board determined that the designating petition was therefore invalid, thereby denying Gabler a position on the Republican party ballot for the June 25, 2019 primary election.
Thereafter, Gabler commenced the validation proceeding by the filing of the original Verified Petition on April 23, 2019 in the office of the Cattaraugus County Clerk. After assignment to this court by the 8th Judicial District Administrative Judge, counsel for Gabler obtained the original, signed Order to Show Cause which directed the service of a copy of the Order to Show Cause and Petition upon the Board and the Objector to be completed by April 23, 2019 and set the return date for May 3, 2019.
The Board appeared by counsel whose answering paper included a motion to dismiss on the grounds that it was not timely commenced within the statute of limitations imposed by Election Law § 16-102(2). Respondent Objector Johnston appeared pro se and submitted a Verified Answer. He did not, however, appear by counsel or personally at the return date hereof.
This case presents an excellent guide to the proper roles of the boards of elections and the courts in determining election matters under Article 16 of the Election Law. The Board operates as an administrative body with ministerial authority to enforce the sometime complex technical requirements of the Election Law. The complicated discussion of the limitation on the Board's power to decide issues on documents filed has a long history.
The distinction between ministerial acts (by the board of elections) and judicial acts (by the court) has been discussed extensively through the years ( Matter of Frankel v. Cheshire , 212 App Div 664 [2nd Dept. 1925] ; see also Matter of Wicksel v. Cohen , 262 NY 446 [1933] ; Schwartz v. Heffernan , 304 NY 474 [1952] ; Matter of Lindgren , 232 NY 59 [1921] ).
The issue is often complicated by a different level of inquiry that applies when the Board examines a document when objections are filed as provided by statute under Election Law § 6-154 compared to such examination by the Board "on the face" of the document, in the absence of any objections (see, e.g. , Matter of Krupczak v. Mancini , 153 A. D.2d 785 [3rd Dept. 1989] ; Matter of O'Connor v. McGivney , 144 Misc 2d. 396 [Sup Ct. Rensselaer County, 1989] ).
The discussion generally focuses on the limitations on what a Board has the authority to do and whether it has exceeded its authority ( Matter of Lucariello v. Commissioner of Chautauqua County Bd. of Elections , 148 AD2d 1012 [4th Dept. 1989] ; Matter of Diamondstone v. Connor , 12 Misc 3d 1196 (A) [Sup Ct. Kings Co., 2006]; but see, Matter of Adamczyk v. Mohr , 87 AD3d. 833 [4th Dept. 2011], lv denied 17 NY3d 706 ).
In this case, Petitioner Gabler requests that the court review and overturn a number of rulings made by the Board which was exercising its heightened level of scrutiny in response to properly filed objections. In reviewing the Board's decision in the present case, it is this court's opinion that the Board correctly ruled on every matter before it and which the Petitioner now seeks to have the court review. In exercising its ministerial duty to enforce the Election Law, the Board's function is to enforce the technical requirements of the Election Law as stated, without the authority to exercise discretion.
It is the role of the court with its authority to exercise judgment or discretion to interpret a statute and apply it appropriately to a given set of facts. The candidate properly requests the court to exercise that authority to overturn the Board's ministerial enforcement of the Election Law.
1. Three Business Day Exception:
The first issue before the court is to determine when the three business day exception to the 14 day statute of limitations under Election Law § 16-102(2) starts, in order to determine whether the present proceeding was timely commenced.
The invalidation of Gabler's designating petition took place at a meeting of the Board on Wednesday, April 17, 2019. Candidate Gabler was not present at that meeting. It is undisputed that Commissioner Burleson unsuccessfully called Gabler before 5 p.m. that day to inform him of the results. Gabler did eventually speak to Commissioner Burleson sometime after 5 p.m.
The Board's written determination of the petition's invalidity was prepared and signed by Commissioner Spittler on the afternoon of the April 17th meeting. However, it was not signed by Commissioner Burleson until Thursday, April 18, 2019, after which the official written notice was e-mailed to Gabler that same day.
The notice of the Board's determination is to be sent to the candidate (and objector) "forthwith by mail". Election Law § 6-154(3). Contrary to the Petitioner's position that the three days starts upon receipt of such notice sent by regular mail, when the Board has been provided with a party's email address, notification by e-mail is properly deemed in compliance with such a mailing requirement. This is consistent with the enunciated policy of the State of New York of the importance of the use of technology by government, the private sector and citizens. (See, generally , State Technology Law, Appendix for Electronic Records and Signatures Act, § 540.1 et seq , McKinney's Cons. Laws of NY, Book 57A § 540.1).
The Appellate Division, Fourth Department has held that the three business day exception, under Election Law § 16-102(2) begins upon "receipt" of the Board's determination (Matter of Schultz v. Niagara County Bd. of Elections , 76 A. D.3d 798 [4th Dept. 2010] ). The notification by a phone call from one commissioner after business hours does not constitute such notice which then begins the running of the three day period (Matter of Richardson v. Britt , 242 AD2d 857 [4th Dept. 1997], lv denied 90 NY2d 805 ). But under the facts of this case, a copy of the Board's original determination signed by both commissioners and sent to to the candidate at an e-mail address that has been provided by the candidate to the Board, does comply with the statute's notice by mailing requirement. Therefore, candidate Gabler is deemed to have received the notice of the Board's determination on Thursday April 18, 2019.
2. Good Friday as a Holiday:
It is undisputed that although it was open for business on Good Friday, April 19, 2019, the Board's office closed at 1 PM. Its regular business day is 9 a.m. to 5 p.m. Since a half day holiday is considered as a Sunday and not a business day, that date cannot be counted in determining the three business days. ( Public Officers Law, § 62 ).
The three business days within which the Petitioner could commence his validation proceeding thus began on Monday, April 22, 2019. Since he filed the Petition and effected service as provided for in the Order to Show Cause by Tuesday, April 23, 2019, this proceeding was timely commenced within the required three business days.
3. Printed Signature:
The Board properly invalidated a printed name on the designating petition when the voter's registration form in the Board's records contains script for his signature (Matter of Lord v. New York State Bd. of Elections , 98 AD3d 622 [3rd Dept. 2012] ; Matter of Rabadi v. Galen , 307 AD2d. 1014 [2nd Dept. 2003] ). It is not the Board's function to determine whether the individual who printed the name intended it to be a signature.
In the court proceeding, however, since the parties agree that the voter was available and would testify that he in fact affixed his printed name on the petition as his signature, the proponent of the designating petition has met his burden. The court may and in this case will properly validate it as a signature (Matter of Romaine v. Suffolk County Bd. of Elections , 65 AD3d 993 [2nd Dept. 2009] ).
4. Signer with Incorrect Street Number:
The signer on page 7 had a listed address of "48 Liberty Street" rather than the correct street address of "49 Liberty Street". Such information needs to be accurate for the Board to determine the qualifications of signatures.
As reasonable as it may seem to excuse a slight inaccuracy such as this, it is a slippery slope for the exercise of discretion. It is clearly not the Board's burden or its proper role to be making discretionary determinations, as the obvious pitfall is where will the line be drawn.
Under the circumstances of the case, there is no basis to overturn the Board's ruling on the invalidity of the signature due to incorrect information of the signer. The Election Law's mandates for strict compliance as to content remain the law (Matter of Stoppenbach v. Sweeney , 98 NY2d 431 [2002] ). The fact that the subscribing witness, here the candidate, inserted the incorrect street number and then testified as to the circumstances does not matter (Matter of Tischler v. Hikind , 98 AD3d 926 [2nd Dept. 2012] ). If an erroneous street address number is not corrected before the petition is filed with the Board, the law does not permit it to be rehabilitated in court by testimony (Matter of Canary v. New York State Bd. of Elections , 131 AD3d 792 [3rd Dept. 2015] ). For that reason, the signature with the incorrect street number in the street address is invalid.
5. Changes in Signature Number:
Two pages of the designating petition contained an issue in the statement of witness in the number of signatures on the page. On page 4 and 6, the witness (who was also the candidate) had apparently determined that not all the signers were enrolled Republican voters who were qualified to sign the Republican designating petition.
In completing the information in the Statement of Witness, he inserted two numbers - one for the total number of signatures, one followed by another number and the words "Reps" all in parenthesis. He had also printed on the left margin next to the signatures, notations indicating the particular signers' ineligibility. Based upon the objection that such entries amounted to an uninitialed and unexplained alteration, the Board invalidated all signatures on both pages.
Contrary to Petitioner's position, the Board did not error by invalidating those sheets of the designating petition. As noted above, it is not the Board's function to interpret the meaning of any obvious change in the number of signatures contained in the statement of witness.
It has long been the law in New York State that an uninitialed and unexplained alteration in the portion of the statement of witness which contains the number of signatures will invalidate the entire page of signatures (Matter of Jonas v. Velez , 65 NY2d 954 [1985] ; Matter of McGuire v. Gamache , 5 NY3d 444 [2005] ).
In its duties as an administrative agency, whose responsibility it is to review petitions, it is not the Board's function to interpret or exercise discretion as to the meaning of the alterations in the number. When changes are uninitialed or unexplained, the court will sustain such a determination by the Board (Matter of Abraham v. Ward , 43 AD3d 1271 [4th Dept. 2007] ); Matter of Shoemaker v. Longo, 186 AD2d 979 [4th Dept. 1992] ). The party seeking to validate it has the burden of proving why the Board's ruling should be overturned. It is, however, within the province of court to determine if a particular alteration is insufficient to constitute a fatal flaw requiring invalidation (Matter of Buley v. Tutunjian , 153 AD2d 784 [3rd Dept. 1989] ).
The exception to the rule is when the alteration is either initialed or explained. Initialing any alteration allows the Board to accept the altered petition. But in the absence of such an initial, the Board must invalidate it due to the alteration.
In a court proceeding, however, the witness may explain by testimony the alteration, including why the alteration was made, when it was made, and by whom it was made. Such testimony may give the court a basis to then validate such a sheet. The proponent of the petition must be given an opportunity to call a witness to explain the alteration by testimony (Matter of Oberman v. Romanowski , 65 AD3d 992 [2nd Dept. 2009] ). The testimony of any such witness must, however, be credible and worthy of belief by the court (Matter of Merrill v. Fritz , 120 AD3d 689 [2nd Dept. 2014] ).
Some courts have relied upon affidavits submitted to the court in lieu of testimony, though it appears those have been uncontroverted (Matter of VanSavage v. Jones , 120 AD3d 887 (3rd Dept. 2014], lv den 24 NY3d 901 ). Generally, however, such affidavits should be treated as hearsay and, unless stipulated to, disallowed as required under the ordinary rules of evidence Matter of Curley v. Zacek , 9 Misc 3d 1120 (A), affd , 22 AD3d 954 [3rd Dept. 2005], lv denied , 5 NY3d 714.
In the present case, candidate Gabler's testimony was credible and logical in explaining his intent to clarify the number of valid, eligible signers on the two sheets. He was trying to note that he recognized that certain signatures were not valid. The sheets and the net valid signatures on them are therefore properly restored as valid.
CONCLUSION AND RELIEF :
For the reasons stated as the basis for the restoration of the signatures validated herein, the Republican Party designating petition of the Petitioner William Gabler contains more than the required minimum number of valid signatures and is therefore valid.
The Board of Elections shall place his name on all ballots for the Republican primary election on June 25, 2019. This shall be the Decision and Judgment of the court.
Papers considered in this decision:
1) Order to Show Cause and Verified Petition 4/17/19 (signed and filed)
2) Petitioner's Affidavits of Service 4/25/19
3) Respondent Board of Elections Answer and Objections 4/23/19
Witnesses who testified :
1) Petitioner William J. Gabler