Opinion
38963.
Decided January 31, 2005.
James J. Baranello, ESQ., Cortland, New York, Attorney for Petitioner.
John L. Bardsley, Esq., County of Cortland, Cortland, New York, Cortland County Attorney.
In this proceeding, seeking to set aside the Cortland County Legislature's appointment of an election commissioner, the relevant facts are essentially undisputed. On December 1, 2004, petitioner William Wood, Chairman of the "Cortland County Democratic Committee," filed with the Clerk of the County Legislature two documents, each conveying the Committee's recommendation that Richard C. Van Donsel be appointed election commissioner (Petition, Exhibits A, B). The first document was in letter form, dated December 1, 2004 and signed by Wood. It set forth the fact that the Committee had met on November 30, 2004, with a quorum present, and "by a majority of the votes cast" had selected Van Donsel "for recommendation as Cortland County Democrat Elections Commissioner for the term commencing January 1, 2005" (Petition, Exhibit A).
The second document is a form, entitled "Election Commissioner Certification," that was evidently created by the State Board of Elections to be used for this purpose. As completed, the form sets forth, in addition to the details of the meeting noted above, Van Donsel's address, and his status as "a registered voter of the County of Cortland and a duly enrolled member of the Democratic Party" (Petition, Exhibit B). In completing the form, however, an error was apparently made, in that the beginning date of the term for which Van Donsel was to be recommended is identified as "January 1, 2004 " [emphasis added], rather than January 1, 2005. Like the letter recommendation, the form was also dated December 1, 2004, and signed by Wood.
After an individual tendered written "objections" to these filings (noting several purported deficiencies in each, including the improper date in the second certification), an "Amended" certification form was filed on December 8, 2004. That form (again, signed by Wood) included all of the other particulars set forth in the form filed a week earlier, with the exception of the beginning date of the term, which had been corrected to January 1, 2005.
On December 9, 2004, the Cortland County Legislature adopted a resolution finding, inter alia, that the first letter recommendation was invalid, as it was not in the proper form and did not contain all of the information prescribed by the State Board of Elections; that the second recommendation filed on December 1, 2004 was invalid, as it "fails to state a proper term of office and is not in the form prescribed by the State Board of Elections"; and that the "Amended" certificate filed on December 8, 2004 was "untimely and unauthorized" (Petition, Exhibit D). Concluding that the "Democratic Party Committee" had "failed to file a valid Election Commissioner Certificate within the time prescribed by law," the resolution then "referred" the appointment of an election commissioner to the Democrat members of the Legislature, citing Election Law § 3-204 (4). Those members thereafter voted to appoint a different person to the post of election commissioner, and this proceeding, challenging that appointment, ensued.
That section provides that "[i]f a party fails to file a certificate within the time prescribed by this section, the members of the legislative body who are members of such party may appoint any eligible person to such office."
Election Law § 3-204 sets forth the procedure to be followed for the appointment of election commissioners. "At least thirty days before the first day of January of any year in which a commissioner of elections is to be appointed, the chairman or secretary of the appropriate party county committee shall file a certificate of party recommendation with the clerk of the appropriate local legislative body" (Election Law § 3-204). "The certificate filed shall be in such form and contain such information as shall be prescribed by the state board of elections" (Election Law § 3-204). Neither party has provided, nor has the court's own research revealed, any written rules or regulations of the State Board of Elections purporting to establish what "information" must be contained in such a certificate. In the absence of any other source of guidance, then, the paper form furnished by the Board must be presumed to dictate both the "form" that must be used for a certificate, and the "information" that must be provided therein. Inasmuch as the initial letter recommendation did not contain all of the information that would have been furnished by a properly completed form (it did not, for example, state that Van Donsel was a registered voter, and a member of the Democrat party), it was not, alone, sufficient to constitute a valid "certificate of party recommendation" as required by the governing statute.
Moreover, respondent is correct in noting that the statute does not contemplate the filing of an "amended" certificate, or any certificate, after December 2nd of the year for which the appointment is to be made, unless an initial recommendation, timely filed, is not acted upon by the local legislative body (and thereafter by its members who belong to the political party making the recommendation), in which case another certificate may then be filed, recommending a different person (Election Law § 3-204). The "amended" certificate filed on December 8, 2004 cannot, therefore, be considered, as it was untimely.
Respondent rejected both of those filings (the letter filed on December 1 and the form filed on December 8), and futher concluded that the second filing made on December 1, 2004 was invalid, because, inter alia, it "fail[ed] to state a proper term of office". In the court's view, this strict reading of what was obviously — given all of the surrounding circumstances — a scrivener's error, cannot be sustained. Even if there had been no other filing made on that day, it would still have been abundantly clear, given the time of filing (in December 2004), the date when the relevant meeting was stated to have taken place (in November 2004), and the fact that an election commissioner is only appointed upon recommendation of the Democrat Party for two-year terms beginning in odd years ( see, Petition, ¶ 17 [admitted by respondent in its "Reply," ¶ 1]), that the reference to "January 2004" was merely an error, of a type that is commonly made by those who have become accustomed to writing one year, when it gives way to another. In view of the contemporaneous and timely filing of another document — on the same day, by the same individual, on behalf of the same party committee, recounting the results of the same meeting, and recommending the same person for the same position — that set forth the correct date, there certainly could have been no reasonable doubt as to what was intended by Wood when completing the form certificate.
In reaching this conclusion, the court is mindful of the decisions holding that, in the context of the Election Law, even what would otherwise be deemed minor defects can be sufficient to render certain documents invalid. Those decisions generally deal with matters that are more closely related to the actual casting of ballots, or the steps that must be taken by candidates to earn a place on the ballot, such as the completion and filing of designating or nominating petitions. In such matters, it is of the utmost importance to ensure that any semblance of fraud or the appearance of impropriety is avoided, to safeguard the integrity of the electoral process.
In other areas, however, errors — even of substance — that can be readily identified as errors, may be excused, when it is apparent that there could be no real confusion, fraud or deception. See, for example, Matter of Ferguson v. Lomenzo ( 57 Misc 2d 1041, affd 30 AD2d 982 [Sup. Ct., Albany Co., 1968]), in which a candidate's acceptance of an independent nomination was deemed valid, despite the fact that it purported to accept a nomination to the office of "Congressman," when he had in fact been nominated to stand for election as a United States Senator ( see also, Matter of Moncayo v. Withers, 154 AD2d 598, 598-599, lv denied 74 NY2d 614).
Moreover, since the enactment of the Election Reform Act of 1992, courts have more often refused to invalidate petitions because of technical errors that have no "reasonable probability" of causing confusion or masking fraud, recognizing that to do so would be contrary to the expressed intent of the State Legislature ( see, Matter of Cozzolino v. Columbia Co. Bd. of Elections, 218 AD2d 921, 922-923, lv denied 86 NY2d 704; cf., Matter of Etkin v. Thalmann, 287 AD2d 775, 776-777; Matter of Sternberg v. Hill, 269 AD2d 730, 731; Matter of Hudson v. Bd. of Elections of City of New York, 207 AD2d 508, 509; Matter of Ciccotti v. Havel, 186 AD2d 979, lv denied 80 NY2d 754).
Here, the legislative history of the governing statute, section 3-204 of the Election Law, demonstrates a continuing effort on the part of the State Legislature to promote and encourage the appointment of individuals recommended by the party committee. Prior to 1984, the statute provided that if the full local legislative body failed to appoint the recommended person within 30 days, "the commissioner [would] be appointed by" the members of the local legislative body from the same political party (Election Law former § 3-204). No limitation was placed on who could be appointed by those members, and no provision was made for any further recommendation by the party committee ( id.).
In 1984, the statute was amended (L 1984, ch 455, § 1). As modified, it now allows the same-party legislators to appoint only the individual recommended by their party committee (if a valid recommendation is made and the recommended person is not appointed by the legislative body), and if they do not, it provides another opportunity for the committee to recommend "a different person" (Election Law § 3-204). This change by the State Legislature demonstrates a strong preference for appointment of an individual recommended by the party committee, if at all possible. Adoption of an unduly strict approach toward minor errors in certificates of party recommendation — which would result in the voiding of certificates, and thus permit the appointment of other individuals, even where a party committee has, in fact, clearly expressed its choice by majority vote (albeit with some technical defect in the presentation of that choice to the local legislative body) — would thwart the State Legislature's manifest intention to have commissioners appointed on recommendation whenever possible.
In sum, the court finds no authority that mandates absolutely strict compliance with the requirements of form or content established by the State Board of Elections, pursuant to Election Law § 3-204 (3), where, as here, a purported "defect" is obviously a scrivener's error, with no likelihood of causing confusion or deception, or perpetrating a fraud. The second document filed on December 1, 2004 (Petition, Exhibit B) was therefore a sufficiently clear and complete expression of the recommendation of the "Democratic Party Committee" for an appointment as election commissioner, to constitute a valid "certificate" within the meaning of Election Law § 3-204 (4). That being so, it is incumbent upon the Cortland County Legislature to either appoint the individual named therein or decline to do so, thereby authorizing the Democrat members of its body to then appoint the person, or refrain from doing so.
For the purposes of calculating the time periods set forth in Elections Law § 3-204 (3), the date of this Decision, Order and Judgment shall be deemed the "date of filing" of the valid certificate. Thus, should Mr. Van Donsel not be appointed by the County Legislature within 30 days of the date of this Decision, or by its Democrat members within 60 days of the date of this Decision, the "Democratic Party Committee" may file another certificate, recommending a different person. Presumably, the full legislature, and if necessary its Democrat members, would then have the opportunity to appoint that person.
This may be implied from the overall statutory scheme. The statute does not, however, speak to what must transpire if the second person recommended is not appointed, nor is the court aware of any case law addressing that issue.
The petition is granted. This decision shall constitute the order and judgment of the court.