Opinion
13539/08.
Decided August 8, 2008.
Attorney for Petitioner John Ciampoli, Esq., Albany, NY.
Attorney for Plaintiff Co-Counsel, Bee, Ready, Fishbein Kenneth A. Gray, Mineola, NY.
Attorney for Defendant Johnson, Jaspan Schlesinger Hoffman Steven R. Schlesinger, Esq., Garden City, NY.
Attorney for Nassau Board of Elections, Gerald C. Waters, Jr., Deputy County Atty, Mineola, NY.
A hearing of the instant Petition was held before this Court on July 30, 2008 and August 1, 2008.
Motion to Quash
It is well recognized that the time table for Election Law cases is extremely tight. Election proceedings have a preference over civil and criminal matters and thus the rules with regard to service are modified to reflect a method of service reasonably calculated to complete service in a timely fashion, but once ordered by the Court there must be strict compliance. In the instant proceeding, an ex-parte application was made to the Special II Justice for "So Ordered" subpoenas to be served on the witnesses and subscribing witnesses to the Respondent Craig M. Johnson (hereinafter "Johnson") Petition, Volume 1, so that Petitioner could proceed with the case on the return date of the Order to Show Cause. Numerous people appeared pursuant to the subpoenas, however they reported to the courtroom of Justice La Marca, also on the fourth floor, presumably because he had signed the subpoenas. The undersigned's name appeared below the index number on the subpoena, however Justice LaMarca's part clerk apparently mistook the subpoenas as returnable in that part because another election law case is pending there. A call was made by someone in that part to Johnson's counsel's office rather than Petitioner's and the people were told they were free to leave without ever having been referred to the undersigned's part for the hearing. Both counsel were present before the undersigned during that morning, as the Order to Show Cause was returnable at 9:30 a.m., in this part.
It is conceded that Johnson's counsel brought those responding to the subpoena into a conference room to speak with them. An intern associated with Petitioner's counsel was present, though no witness testified that he said or did anything. Johnson's counsel admittedly unilaterally dismissed the people who answered the subpoena, without leave of the Court or authorization from Petitioner's counsel.
On the record, Johnson's counsel advised the Court that he spoke to four people with regard to the subpoenas; Kenneth Paresi, Blanca Fabian, Devanand Lackraj and Rhina Debichardo. He indicated that they showed him the subpoenas and he advised them that he "would make a motion to quash if they like and represent them for the purpose of the motion to quash because they were clearly not served properly." At the time he was unaware of the Court Order setting forth the manner in which the subpoenas were to be served.
Pursuant to CPLR § 2304, a motion to quash shall be made promptly in the Court in which the subpoena is returnable.
"A motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer." ( McDaid v. Semegran , 16 Misc 3d 1102(A), 841 NYS2d 826 (Sup. Ct., Nassau Co, Phelan J., 6/15/07). "A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena on the jurisdiction of the issuer of the subpoena (citations omitted)". ( Ayubo v. Eastman Kodak Co. Inc. , 158 AD2d 641, 551 NYS2d 944 (2d Dept., 1990); Matter of Brunswick Hosp. Ctr. v. Hynes , 52 NY2d 333, 420 NE2d 51, 438 NYS2d 253).
Clearly, Johnson's counsel was authorized to make a motion to quash on his behalf. The Court will not speculate as to why he did not do so.
Once there has been compliance with a subpoena, a motion to quash is no longer available. ( Matter of Brunswick Hosp.Ctr. v. Hynes, id.) Absent a timely objection, a check is a valid medium of tender. ( Matter of Dertinger , 90 Misc 2d 789, 395 NYS2d 957 [Surr. Ct., Nassau Co., 1977]). Upon oral argument that the tender of a check was rejected by Johnson's counsel, Petitioner's counsel immediately tendered cash to Johnson's counsel on behalf of the four signatories he allegedly represented, thereby curing any purported defect. The record is not clear what counsel did with regard to the first series of checks or the cash that was tendered, but at least one of the witnesses indicated that he did not receive the cash. (Transcript, hereinafter "Tr.", 8/1/08 p. 76)
Some signatories did appear on the adjourned date, pursuant to a second subpoena, which was also accompanied by a check and no one raised any objection to the form of payment, thereby waiving that claim. Johnson's counsel no longer took the position that he was representing them, nor did he make a motion to quash as to the second round of subpoenas. Inasmuch as the witnesses testified without objection, the motion to quash is no longer available. No basis was set forth to quash the subpoenas, which were served pursuant to the ex-parte order of Justice La Marca, and were accompanied by proper tender and which properly sought the testimony of the signatories to the subject petitions as well as that of the subscribing witnesses. For the foregoing reasons, the motion to quash the subpoena is denied.
Disqualification of Johnson's Counsel
Johnson's counsel's representation to the Court and opposing counsel to the contrary, notwithstanding, the testimony adduced at the hearing called into question whether counsel ever represented the individuals who answered the subpoena. Kenneth Paresi acknowledged giving counsel the subpoena and check but denied authorizing counsel to appear on his behalf. He did remember Johnson's counsel saying that the witness fee should have been paid in cash. (Tr. 8/1/08 p. 75 lines 12-13) Blanca Fabian did not recall counsel mentioning cash, but stated that she gave him the subpoena and asked him to handle it. (Tr. 8/1/08 p. 104 lines 15-17) Vincenzo Carnabuci testified (Tr. 8/1/08, p. 94 lines 20-22) that he called Johnson's counsel at 9:00 a.m. to tell him that he (Carnabuci) was at the courthouse and was advised to go upstairs and wait for Johnson's counsel. On cross examination Carnabuci stated that Johnson's counsel, suggested meeting in the lobby, but that he was "nervous about the time, and I didn't want to get in trouble for not being in Court at 9:30." They had no further conversation that day and ultimately, Carnabuci and seven other people were sent home after sitting in Justice LaMarca's courtroom for about an hour and a half. (Tr. 8/1/08 p. 94 lines 7-15) Blanca Fabian testified (Tr. 8/1/08 pp. 103-105) that "Steven, I forgot his last name" didn't tell her anything, but that he would handle the subpoena. She gave him the subpoena and check and asked him to handle it for her. Rhina Debichardo similarly testified "Mr. Steve" asked "who was in for the petition," and that she and the others who appeared pursuant to the subpoena went to a conference room where Johnson's counsel asked "what happened, if we sign it, if we remember everything . . . and then he asked us for the papers . . . and he said I will take care of everything, you can go home. . . ." (Tr. 8/1/08 pp. 111-112). Arelis Hernandez-Dilone testified that she was in Justice LaMarca's courtroom until about 10:45 when the clerk advised those answering the subpoena "that the lawyer had called and we could leave." Devanand Lackraj testified that he answered the subpoena on Wednesday and pointed out Johnson's counsel as the person who told him to leave the Court. (Tr. 8/1/08 p. 122 lines 6-7). He further testified that he did not authorize any lawyer to appear before Court on his behalf nor did he ask a lawyer to assist him. He did not give the subpoena to Johnson's counsel. He said counsel told him that he was not properly served and was free to leave.
Clearly, none of the witnesses believed that they had retained counsel nor did they authorize anyone to appear on their behalf. I do not find that the evidence supports Johnson's counsel representation that he represented the non-party signatories for the limited purpose of the motion to quash or for any purpose. Thus no conflict of interest was created by the alleged dual representation, which has been proven to be unfounded (but see 22 NYCRR § 1200.24 [DR5-105]).
The motion to disqualify Johnson's counsel is denied. The disqualification of an attorney rests in the sound discretion of the Court. A party is entitled to be represented by counsel of his own choosing. ( Olmoz v. Town of Fishkill , 258 AD2d 447, 684 NYS2d 611 [2d Dept., 1999]). In the highly specialized field of election law, especially in light of the very limited time allotted to such proceedings disqualification would surely have an adverse impact on Johnson and under these circumstances, is not warranted.
Objections
On July 22, 2008, Christine A. Imrie (hereinafter Imrie) filed Specific Objections to the Working Families Parties Designating Petitions of Craig M. Johnson for the public office of Member, New York State Senate, 7th Senate District, with the Nassau County Board of
Elections. The Petition, filed on July 10, 2008, totaled nine (9) pages and contained thirty five (35) signatures. Imrie objected to all thirty five (35) signatures. Seventeen (17) signatures are required for designation. (See Court Exhibit VI)
Page one of the Petition contains five signatures, which were allegedly notarized by David Yellin (hereinafter Yellin). The signatures were allegedly obtained on June 24, 2008 and June 25, 2008. The statement of Yellin, dated July 5, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 5 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie's specific objections to this page were as follows: Imrie objected to all signatures on page 1 based on forgery and no oath being given. In addition, as to Line 1, she objected in that the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 16, line 1 on June 21, 2008. With respect to Line 4, she additionally objected to this signature based on the listing of a first name only and forgery. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page two of the Petition contains four signatures that were allegedly notarized by Yellin. The signatures were allegedly obtained on June 25, 2008. The statement of Yellin, dated July 5, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 4 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie objected to all signatures on page 2 based on no oath being given and forgery. With respect to the signature at line one, she additionally objected that it was a duplicate with page 5 line 4. As to the signature at line 2, she additionally objected that it was a duplicate with page 5 line 5. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page three of the Petition contains two signatures that were allegedly notarized by Yellin. The signatures were allegedly obtained on July 7, 2008. The statement of Yellin, dated July 8, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 2 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie objected to all signatures on page 3 based on no oath being given and forgery. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page four of the Petition contains two signatures, which were allegedly witnessed by Abdul Kahim, a member of the Working Families Party. They were allegedly obtained on July 7, 2008.The witness statement was signed on July 7, 2008. Imrie objected to the Witness Statement in that it did not indicate the town in the witness identification information and omitted the number of signatures.
Page five of the Petition contains five signatures that were allegedly witnessed by Abdul Kahim, a member of the Working Families Party. They were allegedly obtained on July 6, 2008.The witness statement was signed on July 6, 2008. Imrie objected to the Witness Statement in that it did not indicate the town in the witness identification information and omitted the number of signatures. In addition, with respect to the signature at line 4, Imrie objected in that it was a duplicate of page 2 line 1. With respect to the signature at line 5, Imrie objected in that it was a duplicate of page 2 line 2.
Page six of the Petition contains two signatures that were allegedly notarized by Kevin Rantz (hereinafter Rantz). The signatures were allegedly obtained on June 30, 2008. The statement of Rantz, dated June 30, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 2 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie's specific objections to this page were as follows: Imrie objected to all signatures on page 6 based on forgery and no oath being given. In addition, as to Line 1, she objected in that the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 2, line 5 on June 21, 2008. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page seven of the Petition contains five signatures, which were allegedly notarized by Rantz. The signatures were allegedly obtained on July 2, 2008. The statement of Rantz, dated July 2, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 2 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie's specific objections to this page were as follows: Imrie objected to all signatures on page 7 based on forgery and no oath being given. In addition, as to Line 1, she objected in that the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 7, line 2 on June 25, 2008. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page eight of the Petition contains five signatures that were allegedly notarized by Rantz. The signatures were allegedly obtained on July 2, 2008. The statement of Rantz, dated July 2, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 5 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie's specific objections to this page were as follows: Imrie objected to all signatures on page 8 based on forgery and no oath being given. In addition, as to Line 5, she objected that the name was printed and not signed. As to the Witness Statement, she objected to it as a forgery, a material false statement.
Page nine of the Petition contains five signatures, which were allegedly notarized by Rantz. The signatures were allegedly obtained on June 30, 2008. The statement of Rantz, dated June 30, 2008, contains the statement that "On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing (fill in number) 5 signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her was true." Imrie's specific objections to this page were as follows: Imrie objected to all signatures on page 9 based on forgery and no oath being given. In addition, as to Line 1, she objected that the name was printed and not signed and the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 8, line 2 on June 7, 2008 or June 17, 2008. With respect to the signature at line 2, she further objected that the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 5, line 1 on June 10, 2008. She further objected to the signature at line 2 in that there was no first name or the first name was so abbreviated that it cannot be identified. As to the signature at line 4, she objected that there was no first name or the first name was so abbreviated that it cannot be identified. With respect to the signature at line 5, she further objected that the individual signed another petition for the same office on the same or prior date designating another candidate at petition volume 1, page 12, line 1 on June 29, 2008. As to the Witness Statement, she objected to it as a forgery, a material false statement.
On July 28, 2008, a meeting of the Commissioners of The Board of Elections was held to rule on Imrie's specific objections to the petition. The Commissioners for both the Democratic and Republican parties agreed that 7 signatures were invalid because the witness statement did not list the number of signatures on the page (Page 4 containing 2 signatures and page 5 containing 5 signatures). In addition the Commissioners agreed that the name at page 8, line 4 was printed, not signed and therefore invalid. The Republican Commissioner found six additional signatures invalid because the signatories signed another petition for the same office on an earlier date. (Page 1 line 1, Page 6 line 1, Page 7 line 1, Page 9 lines 1, 2 and 5). The Democratic Commissioner found this to be an invalid objection as the candidate on the prior petitions, Patrick Lilavois, had filed a Certificate of Declination of that petition.
The Commissioners cannot rule on fraud, forgery or the failure to administer an oath by a notary. The Commissioners ruled that of the 35 signatures submitted, 8 were invalid, leaving 27 valid signatures, with 17 required. Therefore they ruled the petition was valid on July 28, 2008.
Cross Petition
A proceeding with respect to a petition shall be instituted within fourteen (14) days after the last day to file the petition, or within three (3) business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later. ( Election Law § 16-102[2 ]). As the Commissioners ruled the petition was valid, the petition and any cross petition had to be served within fourteen (14) days from July 10, 2008, the last day to file the petition or July 24, 2008. The initial Petition by Christine A. Imrie was filed on July 23, 2008, and was therefore timely. The Answer and Cross Petition filed by Craig M. Johnson, was filed on July 29, 2008, the return date of the order to show cause for the instant Petition, beyond the statutory period. The three day extension provided for in § 16-102 is inapplicable, as this period applies only in cases where a nominating petition is invalidated by the body charged with ruling on it. ( Melillo v. DeGrace , Index No. 8374/03 Sup. Ct. Nassau Co., Roberto, J. (6/9/03); J. Goldfeder, Goldfeder's Modern Election Law p. 56 [1st Ed., 2007]). The failure to file within the statutory period is a fatal jurisdictional defect, which must result in a dismissal of the proceeding as untimely. ( White v. Bilal , 21 AD3d 573, 800 NYS2d 596 (2d Dept., 2005); app. dism. 5 NY3d 824, 837 NE2d 736, 804 NYS2d 37 (2005); Riley v. Owasco , 21 AD3d 708 , 800 NYS2d 258 (4th Dept., 2005) lv. app.den. 5 NY3d 707, 835 NE2d 660, 801 NYS2d 800 (2005); Eckart v. Edelstein , 185 AD2d 955, 586 NYS2d 832 (2d Dept., 1992) ; Matter of Moss v. D'Apice , 138 AD2d 436, 526 NYS2d 9 [2d Dept., 1988]). In addition, pursuant to CPLR § 402, the pleadings in a special proceeding, such as the instant cross petition, are limited to a petition, an answer, and a reply to any counterclaim asserted. A cross claim is not permitted without leave of court. ( White v. Bilal, supra; Koplen v. Austin , 5 AD3d 515, 772 NYS2d 829 [2d Dept., 2004]). No such leave was sought or granted. The Cross-Petition to validate the Petition is therefore dismissed.
In any event, this Court has reviewed Petition pages 4 and 5 invalidated by the Commissioners and finds that these pages did not contain the number of signatures. Such exclusion requires invalidation of those signatures. ( Matter of Zunno v. Fein , 175 AD2d 935, 573 NYS2d 527 [2d Dept., 1991]). In addition, these pages failed to list, any where, the town or city where the witness resides. Such a total failure is cause to invalidate these pages of the Petition. ( Matter of Barrett v. Brodsky , 196 AD2d 603, 602 NYS2d 397 [2d Dept., 1993]). Further, the testimony of the individual whose name appeared on page 8 line 4 establishes that the marking was not her signature. This Court reviewed page 8 line 4 and finds that the name is printed, not signed and is therefore invalidated.
Forgeries
No evidence was proffered at the hearing to establish that any of the signatures were forgeries and the witnesses' testimony was to the contrary. The objections based upon the alleged forgery are deemed abandoned.
Notaries Failure to Administer an Appropriate Oath
Turning to the specific objection that pages one, two, three, six, seven, eight and nine of the petition should be invalidated because the notaries did not administer an appropriate oath, a review of the hearing testimony is required.
According to the sworn testimony of Rantz, an employee of the Nassau County Board of Elections, he is not a registered member of the Working Families Party. He carried a petition for Johnson in his capacity as a notary. Rantz testified that he would bang on a door and ask for an individual. His general procedure would be "if this is the individual, I would usually point to the you have a list of the registered voter where it has the names and addresses and I would point, do you attest, are you this individual, and if they say yes, I let them sign the petition." (Tr. 7/30/08 p. 46, lines 1-5). The procedure Rantz employed when circulating Democratic petitions, as a member of that party, differed only to the extent that he would "just ask for the individual and let them sign." (Tr. 7/30/08 p. 46, lines 22-23) He did not administer an oath similar to the one he took prior to testifying in this proceeding to anyone. He did not ask them to swear or affirm to anything, but rather asked them to attest that they are the person he was speaking with. Of all the petitions he circulated, he did not swear in any of the individuals who signed. With respect to whether or not he identified himself as a notary, Rantz testified that he could not recall which of the people, "if I did state I was a notary or didn't." (Tr. 7/30/08 p. 53, lines 25-24, p. 54, lines 1-2) He testified at first that he didn't recall which people he had attest to their name, but on cross examination testified that he used the word attest with each person. While Rantz testified that he asked for the signers to attest as to their name, he did not obtain a statement from any of the signatories as to the truth of the matter to which they subscribed their names. Even if this Court were to credit Rantz's testimony, which contradicts a number of the signatories, which will be discussed below, a failure to take an oath or obtain a statement from the signatories as to the truth of their statements, requires the invalidation of all signatures obtained by Rantz. ( Merrill v. Adler , 253 AD2d 505, 676 NYS2d 869 (2d Dept., 1998); Brown v. Suffolk County Board of Elections , 264 AD2d 489, 694 NYS2d 167 (2d Dept., 1999); Matter of Zunno, supra ; Boyle v. New York City Board of Elections , 185 AD2d 953, 587 NYS2d 23 (2d Dept., 1992); O'Dea v. Bell , 242 AD2d 349, 661 NYS2d 265 [2d Dept., 1997]). This Court is not satisfied that merely stating do you attest to your identity is an oath in the form calculated to awaken the conscience and impress the mind of a person taking it in accordance with his or her religious or ethical beliefs.( CPLR § 2309[b ]).This is particularly true where the only difference, as testified to by Rantz, between obtaining a signature from a Democratic party member and acting as a notary is asking do you attest this is your name.
A number of the signatories on Rantz's petition gave sworn testimony at the hearing concerning the administration of an oath. The individual who signed on page 9 at line 4 in her sworn testimony stated "No, absolutely no, I am sure" (Tr. 7/30/08 p. 29 line 2), that the person who took her signature did not indicate that he was a notary public. She further testified that he did not administer an oath and did not ask her to raise her right hand or to swear. When asked whether at the time she signed the petition did she say to anyone that you swear or affirm, this signatory stated "No, I never heard those types of words or anything like that, nothing like that." (Tr. 7/30/08 p. 31 line 25, page 32 line1). While unable to remember every word that was spoken this signatory recalled the content of the conversations. When asked how many oaths or affirmations she took on June 30, 2008, she stated none.
The individual who signed on page nine at line 2 gave sworn testimony that although she did not recall everything that was said when she signed the petition, on the date she signed the petition she did not take an oath or swear to anything. She further testified that the person who presented the petition did not identify himself as a notary public. She testified that the person who took her signature did not ask her to do anything other than sign the petition and at the time of the signing she didn't say or do anything other than sign her name.
The individual who signed on page 9 at line 3 testified under oath that she did not recall any of the details of what was said when she signed the petition other than that someone asked her to do so.
The individual who signed on page 1 at line 2 testified under oath that she was not clear on the question "Can you tell us what party you're a member of?" (Tr. 8/1/08 p. 130 lines 16-17). She did testify however that she was not a member of the Working Families Party. This would be a sufficient basis to invalidate her signature. However, this Court finds that at the very least, the witness does not know whether or not she is a member of the Working Families Party. Although she did not recall all of the details surrounding her signing the petition, the witness testified that she did not appear before a notary public and did not recall taking an oath. She did however indicate that she was asked to affirm or attest to the extent that she was asked, "He asked well, he didn't really ask me to attest to anything. He just asked me am I for the working family and I said yes." (Tr. 8/1/08 p. 132 line16-18). She further testified that in the past she has had her signature sworn by a notary and when asked "Did anything like when you swore your signature occur at the time you signed" answered "No." (Tr. 8/1/08 p. 132 line 25, p. 133 lines 3-5).
The witness who signed on page 3 at line 1 testified under oath that she did not recall the exact language used at the time she signed the petition, but testified that she did not believe that anyone asked her if the document she signed was true. She also did not think that anyone asked her to raise her hand and take an oath.
The individual who signed on page eight at line 1 testified under oath that during the course of the day when she signed the petition, including the time of the signing, she was never asked to raise her right hand and swear to anything. She further testified that she was never asked to attest to anything or to take an oath or affirmation.
The testimony of the witness who signed on page 1 at line 4 contains more than a first name. The last name appears in the residence box above the signer's address. As to the substance of his testimony, the Court does not find that the witness understood enough of the proceedings to credit his testimony.
The individual who signed at page eight line 4 had her signature invalidated by the Commissioners because it was printed not signed. Although she did not recall everything that was said at the time she wrote on the petition, she did testify that she never appeared before a notary public and does not recall being asked to take an oath or to swear to anything. She did however indicate that she was asked to attest to her name.
The individual who signed on page seven at line 2 testified that although he did not remember every word that was spoken, on the day of signing the petition he never appeared before a notary public and was never asked to raise his right hand and swear an oath or attest or affirm or aver to anything.
The individual who signed on page seven at line 3 testified that at no time did he swear an oath on the day he signed the petition. He was not certain whether or not the person who took his signature was a notary or asked him to attest to anything.
The individual who signed on page seven at line 5 testified that on the day he signed the petition, the man who asked him to sign the petition did not identify himself as a notary, did not swear him in or administer an oath, did not ask him to raise his right hand, did not ask him to swear or attest to anything and did not ask him if the statement he was making was true. The witness further testified that he was never asked to attest to his identity.
While no specific words must be used when a notary acts as a subscribing witness, something must awaken the conscience and impress the mind of the signatory. Without exception, it is clear that no oath, formal or otherwise heightened the awareness of these signatories. This Court credits the testimony of these witnesses, which further supports this Court's finding that no oath was given to them by Rantz. Without such, the petition sheets are invalid. ( Matter of Leahy v. O'Rourke , 307 AD2d 1008, 763 NYS2d 508 [2d Dept., 2003]).
Rantz obtained a total of seventeen signatures, the two signatures on page six, the five signatures on page seven, the five signatures on page eight and the five signatures on page nine. The invalidation of these 17 signatures brings the number of signatories down to 11, insufficient for the Petition, one of the 17 having already been invalidated by the BOE. On this basis alone the Petition is invalidated.
Turning next to the signatures, which were allegedly obtained by Yellin, the individual who signed at page 3 line 2 of the petition testified that he is a registered Republican and not a member of the Working Families Party. This fact alone, undisputed by Respondents, is cause to invalidate the signature. In addition, he testified that although he could not recall the conversation word for word, on the day he signed the petition he did not take an oath, did not appear before anyone identifying themselves as a notary and was not told anything at the time he signed the petition that heightened his attention that he was signing a notarized document. The signature is therefore invalidated.
The individual who signed at page 1 line 5 testified that although he could not recall every word that was said to him when he was presented with the petition, on the day he signed the petition, he was approached and asked who he was. He was not asked for identification. At no time during the conversation did the person use the term swear or attest or affirm. He did not appear at any time on that day before a Notary Public. At no time did he recall being told anything that heightened his sensitivity to the document that he was signing to make it seem different from signing any other piece of paper. The signature is therefore invalidated.
The individual who signed on page 2 at line 2 did not have a strong recollection of the events on the day she signed the petition. However, when asked whether or not she recalled on the day she signed the petition anyone asking her to attest to anything, she answered no. (Tr. 8/1/08 p. 102 line 12-14).
This Court is troubled by Yellin's failure to appear and testify despite having been served with a So Ordered subpoena. To begin with, Yellin is a Notary Public of this state, charged with a duty of administering oaths to witnesses. This is a responsibility that should not be taken lightly and that ensures the integrity and validity of highly important documents such as designating and nominating petitions of candidates for public office. Yellin should have a heightened awareness of the importance of his testimony at these proceedings, lest the requirement of a notarized petition be nothing more than a rubber stamp with the potential for fraud. In fact, a notary public who practices any fraud or deceit in the exercise of their powers or performance of their duties shall be guilty of a misdemeanor. ( Executive Law § 135-a); Election Law § 17-122(7) and [8 ]).
The Affidavits of Service submitted to the Court establish that Yellin was properly served with subpoenas to appear on July 30, 2008 and August 1, 2008. There is nothing before this Court to excuse Yellin's failure to appear, or to establish he appeared, other than a letter purported to have been authored by Yellin, addressed to counsel for Petitioner and produced in court by counsel for Johnson. (See Resp. Exh. 1). There is no way to authenticate the signature or establish who authored the letter. It is interesting to note that it is not an affidavit or even notarized. The letter is in inadmissible form and will not, therefore, be considered by this Court.
While counsel for Johnson argues that no negative inference should be drawn from Yellin's failure to appear, as he is not under Johnson's control, this Court disagrees. While Johnson testified that he has no relationship with Yellin and that he is not in his employ or in the employ of his campaign committee, there is no question that Yellin was circulating designating petitions in candidate Johnson's behalf as a subscribing witness. As such, he is presumed to be under his control. ( Haas v. Costigan , 14 AD2d 809, 221 NYS2d 138 (2d Dept., 1961), aff'd 10 NY2d 889, 179 NE2d 513, 223 NYS2d 511). While candidate Johnson appeared, through his testimony, unclear or at the very least unfamiliar with whether or not he was receiving support from the North Hempstead Democratic Committee or the Nassau County Democratic Committee, he did acknowledge contributions were made to his campaign by the North Hempstead Democratic Committee. Payments were also made by the same committee to Yellin, and those transactions were confirmed by the certified records from the New York State Board of Elections received by this Court on August 7, 2008.
Said records further reveal numerous exchanges, i.e., expenditures and contributions by and between Johnson, the North Hempstead Democratic Housekeeping Account, North Hempstead Democratic Committee and Yellin. In fact, Yellin contributed to Johnson's last campaign. (Ct. Ex. X) Johnson also paid significant sums to the Working Families Party ($110,875.00) for various purposes. While there is nothing untoward in making such contributions, these financial transactions lend credence to Petitioner's position that Yellin is no stranger to Johnson and that he was not merely a volunteer for the Working Families Party.
Further, the Court notes that Yellin is the purported notary on the Lilavois declination, which cleared the way for Johnson to become the Working Families Party candidate.
Candidate Johnson's counsel argues that they were under no obligation to produce Yellin pursuant to the original order to show cause because he was a notary and not a subscribing witness to these petition pages. This Court and Appellate Division Second Department disagrees. ( Hudson v. Board of Elections of City of New York , 207 AD2d 508, 616 NYS2d 62 [2d Dept., 1994]). Moreover, Election Law § 6-132 under the heading STATEMENT OF WITNESS' provides for the signed statement of a witness who is a member of the party for which the petition is being circulated or in lieu of a voter qualified to sign the petition, a statement signed by a notary public. There is no limitation on the taking of signatures, only the oath, which must be administered if the witness is not a member of the designating party.
This Court finds Yellin's failure to appear pursuant to subpoena and pursuant to the order to show cause, taken together with the pattern of irregularities demonstrated by Petitioner's witnesses and throughout these proceedings, warrants a negative inference as to the manner in which the signatures were obtained. This Court concludes therefore that all signatures gathered on Johnson's petition by Yellin should be invalidated.
Signed Another Petition
It is well settled that where a person has previously signed the designating petition of another candidate for the same public office the later signature should be stricken as duplicative. ( Venuti v. Westchester County Board of Elections , 43 AD3d 482 , 842 NYS2d 30 (2d Dept., 2007); Keenan v. Chemung County Board of Elections , 43 AD3d 623 , 841 NYS2d 187 (3rd Dept., 2007); Lavelle v. Gonzalez , 93 AD2d 896, 461 NYS2d 433 (2d Dept., 1983) aff'd 59 NY2d 670, 450 NE2d 218, 463 NYS2d 412. The duplicative signatures appeared on Johnson's designating petitions filed with the Board of Elections on July 10, 2008 and Lilavois designating petition filed on July 10, 2008. Inasmuch as both petitions were filed with the Board of Elections (BOE) (and as stipulated neither has been declared invalid), the later signatures are properly invalidated. ( Ferraro v. McNab , 60 NY2d 601, 454 NE2d 533, 467 NYS2d 193 (1983).
The BOE did not rule on signatures alleged to be invalid because the person signed a prior petition. The Court finds that five of the signatures obtained by Rantz must be invalidated because the person had previously signed another petition. The signature on page 6 line 1 is invalid because the person previously signed a petition for Lilavois on June 14, 2008, at page 2 line 5; page 7 line 1 is disqualified due to an earlier signature for Lilavois on June 25, 2008, at page 7 line 2; the signature on page 9, line 1 is invalidated due to her earlier signature for Lilavois on June 17 at page 8, line 2; the signature on page 9, line 5 of Johnson's petition is invalid due to her earlier signature for Lalavois on June 29 at page 12 line 1. Additionally, it is noted that the signature on page 9 line 2 is invalid due to a prior signature on the Lilavois petition, on June 10, 2008 at page 5 line 1.
With regard to those signatures allegedly taken by subscribing witness Yellin, the Court finds that three must be invalidated because the signatories had signed a prior petition for another candidate for the same office. It is noted that the objections listed the "SAP" designation at page 1 line 1 rather than page 1 line 5, which is the signature duplicative of one appearing on the Lilavois petition, page 16, line 1and is properly invalidated, ( Venuti v.Westchester County Board of Elections, supra ). The following signatures are invalidated: at page 1 line 5 of Johnson's petition, due to his earlier signature for Lilavois at page 16, line 1 on June 21, 2008.; page 2, line 1 also signed for Craig Johnson on page 5, line 4; page 2 line 2 also appears on a Craig Johnson petition page 5 line 5.
A total of eight signatures must be invalidated because the person signed a prior petition for the same office.
First Name Only
While Petitioner filed a specific objection with regard to the use of a First Name Only on page 1, line 4 of the Petition, the BOE made no ruling on that objection and no testimony or evidence was submitted with regard to that objection. At first blush it appears that the signature consists only of a first name, but upon closer inspection, the surname appears in the residence field. The Court will not invalidate the signature on that basis. (But see Matter of Fusco v. Miele , 275 AD2d 426, 712 NYS2d 628 [2d Dept., 2000]). That objection is deemed abandoned.
No First Name
Petitioner specifically objected to the signature at page 9, line 4 on the basis that only the first initial, rather than the full first name was present. A review of the petition supports this objection, however no testimony was offered to substantiate that objection and the signer testified that the signature on the Petition was hers. ( Jaffee v. Kelly , 32 AD3d 485, 819 NYS2d 485 [2d Dept., 2006]). No evidence was submitted to establish how she signed the registration card with the BOE, nor did the BOE rule on that objection. That objection is deemed abandoned.
Conclusion
There can be no doubt that the right and privilege of our citizens to participate in the election of our representatives goes to the core of what it means to be an American. Too few of our citizens avail themselves of the right to vote and this Court is loathe to discourage anyone from actively participating in the election process. We are however a nation of laws, and while the Election Reform Act of 1992 sought to remove many technical barriers to a proposed candidacy not tainted by fraud or wrongdoing, it did not eliminate all of the requirements established to insure the validity and integrity of the process.
The Court is especially cognizant of the concern that the signatories may become disenfranchised if their candidate of choice is not permitted on the ballot of their chosen party. Many of them came to Court twice, fearful that they had done something wrong. From their testimony, it did appear that they knew they were signing a Petition on behalf of the Working Families Party. In light of the fact that some had signed a prior petition for another candidate, their support for Craig Johnson was not as clear cut.
"Disenfranchising" voters is not just a new buzzword or catchall phrase to cover up sloppy petition gathering practices. The requirements of Election Law § 6-132 establishing the procedures for a subscribing witness, distinguishing the requirements for a party member as compared to a notary, are to prevent fraud, deception, confusion and threats to the integrity of the system. Failure by parties to abide by the simple procedures may have the result of a petition being invalidated, but it is their failure to comply, not a mere technicality, that causes such a result. All voters can take comfort in knowing that the process is free from fraud. To turn a blind eye toward the blatant disregard of the process and statutory requirements would divest the voters of the confidence they have in the law and thus would fail to protect the voters in the exercise of his or her franchise.
Lacking the necessary number of signatures, to wit: none have been found valid; the petition is invalidated and the Board of Elections is enjoined, restrained and prohibited from putting the name of the Respondent-Candidate, Craig Johnson on the official ballots to be used at the September 9, 2008 Working Families Party Primary Election for the public office of Member of the New York State Senate, 7th Senate District of New York.
The foregoing constitutes the Order of this Court.