Opinion
2018-34005 Index 52715/18
09-18-2018
ERIK HAIGHT, Republican Commissioner of Elections, Dutchess County, Petitioner, v. MARCO CAVIGLIA, Democratic Commissioner of Elections, Dutchess County, DUTCHESS COUNTY BOARD OF ELECTIONS, Respondent-Board, COLEEN E. SNOW, Purported Candidate for Councilmember in the Town of Pawling, Respondent. For an Order Pursuant to CPLR Article 78 and Section 3001.
Bouvier Law LLP Treybich Law, P.C. Marco Caviglia, Esq. James M. Fedorchak, Esq.
Unpublished Opinion
Bouvier Law LLP
Treybich Law, P.C.
Marco Caviglia, Esq.
James M. Fedorchak, Esq.
DECISION, ORDER AND JUDGMENT
MARIA G. ROSA, J.S.C.
The following papers were read on this proceeding to remove a candidate from the 2018 General Election ballot.
AMENDED ORDER TO SHOW CAUSE VERIFIED PETITION EXHIBITS A - E
VERIFIED ANSWER MEMORANDUM OF LAW EXHIBITS A -G
VERIFIED ANSWER
REPLY AFFIRMATION
Petitioner, the Republican Commissioner of Elections for Dutchess County, commenced this proceeding by order to show cause seeking a judgment requiring the removal of candidate Coleen E. Snow from the 2018 General Election ballot as the candidate of the Women's Equality Party for the office of Pawling Town Councilmember Designating petitions nominating Snow as the Women's Equality Party candidate for the office were filed with the Dutchess County Board of Elections on July 10, 2018. On that same date, the President of the New York State Women's Equality Party filed with the Board of Elections a certificate of nomination pursuant to Election Law 96-120 authorizing the nomination of Snow for that office. Petitioner alleges that respondent Marco Caviglia, the Democratic Commissioner of Elections for Dutchess County, reviewed the designating petition on July 11, 2018 and found it valid. Petitioner maintains the designating petition is not valid because the Womenss Equality Party failed to establish and/or organize a county committee under Article 2 of the Election Law and thus there was no lawful authority for Snow's nomination either by caucus or primary election. Petitioner asserts that Election Law 96-108 establishes the sole process and procedures for party nominations for town offices in New York. He maintains that under that statute party nominations in Dutchess County, because it has fewer than 750, 000 inhabitants, "shall be made by caucus or primary election, as the rules of the county committee shall provide...." As the Womenss Equality Party does not have a county committee, petitioner contends that there was no lawful basis for it to hold a caucus or primary under Election Law 96-108, thereby precluding it from nominating Snow as the Womenss Equality Party candidate.
Respondent Snow opposes the petition and asserts a counter-claim and cross-claim for an order requiring the Dutchess County Board of Elections to validate a ballot containing her name on the Womenss Equality Party line. Snow further seeks attorney's fees and costs alleging this is a frivolous proceeding.
Election Law 916-102(1) confers upon this court jurisdiction over proceedings to contest the nomination or designation of any candidate for public office. Petitioner's challenge to Snow appearing as the Womenss Equality Party candidate for the office of Town of Pawling Council member constitutes a challenge or contest to the designation or nomination of a candidate for public office. While petitioner denominates this proceeding as seeking relief under CPLR Article 78 and 93001, it is in reality a proceeding under Election Law 916-102(1). See Scaringe v. Ackerman, 119 A.D.2d 327 (3rd Dept 1986). Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law 916-102(2). See Ciotti v. Westchester Cty Bd. of Elections, 109 A.D.3d 988, 989 (2nd Dept 2013). It is undisputed that petitioner did not commence the proceeding within fourteen days after the last day to file the designating petitions at issue as required under Election Law 916-102(2). Accordingly, respondent Snow correctly asserts that the proceeding was not timely filed. See Haight v. Knann, 88 A.D.3d 921 (2nd Dept 2013).
Petitioner further lacks capacity and standing to maintain this proceeding. As the County Board of Elections is a creature of statute, it has neither an inherent nor a common-law right to bring an action. See Graziano v. Cty. of Abany, 3 N.Y.3d 475, 478-79 (2004). There is no enabling legislation or other statutory predicate authorizing petitioner to maintain this suit in his capacity as a Commissioner of Elections. See Scannameco v. Riley, 132 A.D.3d705 (2nDept2015). Moreover, he further lacks standing to commence this proceeding in that capacity pursuant to Election Law Article 16. Id. The nomination or designation of a candidate for public office by reason of a filed petition may be contested in this court "by any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections...." Election Law S16-102. Petitioner does not fall under any of these categories and thus lacks standing. Based upon the foregoing, it is
Dept 2011)], his substantive claims are not frivolous to the extent that the imposition of sanctions is warranted.
ORDERED that the petition is dismissed as time-barred and for lack of capacity and standing. In light of the foregoing, the court declines to address the remaining grounds upon which respondent Snow seeks dismissal. It is further
ORDERED that respondent Snow's cross-motion is granted and the Dutchess County Board of Elections shall certify a ballot for the November 6, 2018 General Election that contains the name of Coleen E. Snow as the Womenss Equality Party candidate for the office of Town of Pawling Councilmember. Although there is no Dutchess County Womenss Equality Party, there is a state party the rules for which were filed with the Dutchess County Board of Elections. Those rules provide, and case law holds, that where no duly organized county committee exists, the state party may validly nominate candidates for town office. Cooke v. Donohue.37 N.Y.2d 835 [1975]). It is further
ORDERED that respondent Snow's cross-motion for attorney's fees and costs is denied. While there were clear procedural impediments to petitioner maintaining this proceeding of which he should have been aware based upon his commencement of a prior proceeding dismissed on similar grounds [See Haight v. Knapp, 88 A.D.3d 921 (2
The foregoing constitutes the decision, order and judgment of the Court.