Opinion
6033-05.
Decided on October 13, 2005.
John J. Kelleher, Esq., Attorney for Petitioner, Albany, NY.
Todd D. Valentine, Esq., Attorney for Respondent New York State Board of Elections, Albany, NY.
Robert A. Smith, Esq., Attorney for Respondent Rensselaer County Board of Elections, Troy, NY.
Dietrich Werner, Pro se, Rosendale, NY.
L. Michael Mackey, Esq., Attorney for Respondent Paul E. Caputo, Albany, NY.
Thomas. S. Connolly, Jr., Pro se, Wynantskill, NY.
Richard P. Walsh, Jr. Esq., Attorney for Respondent, Hon. Chris F. Hummel, Albany, NY.
John W. Tabner, Esq., Attorney for Respondent, Thomas Marcelle, Albany, NY.
William J. Doyle and Thomas D. Spain, Esqs., Attorney for Respondent, Hon. Edward Spain, Troy, NY.
Clemente J. Parente, Esq., Attorney for Respondent, Michael Lynch, Albany, NY.
Petitioner Cindy Hill is a duly qualified voter in the Third Judicial District and a member of the Independence Party. Hill commenced this special proceeding, pursuant to Article 16 of the Election Law, to challenge the substitution of Michael Lynch as the candidate of the Independence Party for the office of Justice of the Supreme Court for the Third Judicial District. Petitioner contends that respondents Thomas Connolly, Jr., Hon. Chris Hummel (Hummel) and Michael Lynch entered into a conspiracy to fraudulently and illegally manipulate Hummel's declination of the Independence Party nomination and the subsequent substitution by the respondent Committee to Fill Vacancies, whose members were: respondents Thomas Connolly, Jr., Paul Caputo and Deitrich Werner. Michael Lynch was named by the Committee to Fill Vacancies to fill the vacancy that occurred upon the declination of Hummel.
The Court held an evidentiary hearing on October 12, 2005 and provided all the parties an opportunity to be heard. The petitioner called Connolly, Caputo, Werner and Jim Long, Esq., to the stand, and attempted to call Rensselaer County Republican Party Leader and Chairman, Jack Casey. Although subpoenaed, neither Casey nor his counsel appeared before the Court. After a failed attempt by the petitioner to locate Casey, both parties rested and were given the opportunity to prepare and submit post hearing memorandums. Based upon the foregoing, the Court now makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
On September 21, 2005, the Independence Party held a judicial convention to nominate candidates for the office of Justice of the Supreme Court for the Third Judicial District. At said convention, respondents Hon. Edward Spain (Spain), Hummel and Hon. John Egan (Egan) were nominated. On September 23, 2005, the Democrat Party and Republican Party held judicial conventions to nominate candidates for the office of Justice of the Supreme Court for the Third Judicial District. The Democrat Party nominated Spain, Michael Lynch and Egan as candidates and, the Republican Party nominated respondent Thomas Marcelle, Spain and Paul Gruner as candidates. Following the conventions, all nominated candidates filed the appropriate acceptances with the State Board of Elections.
According to Connolly, sometime after Hummel failed to secure the Republican nomination, he considered the possibility that Hummel would withdraw from the election and decline the nomination. With that in mind, Connolly arranged a meeting of the Committee to Fill Vacancies and invited Michael Lynch and Jim Long, Esq., a mutual friend of both Connolly and Lynch, and scheduled the meeting for noon on September 30, 2005 at Lombardo's Restaurant in the City of Albany. The meeting was changed to September 29, 2005 due to Hummel's schedule and Connolly's desire to hold the meeting late in the week.
The following events occurred on September 29, 2005: sometime before noon, Long provided Connolly with two Certificates of Substitution, one with Michael Lynch's name and the other blank; at approximately 11:15 a.m., Hummel executed the declination form for the Independence Party and gave it to Rensselaer County Republican Party Leader and Chairman, Jack Casey, to immediately file; during this time period Casey spoke with Connolly more than seven times by telephone; at noon, Connolly, Werner, Caputo, Michael Lynch, Peter Lynch and Long convened at Lombardo's Restaurant; at 12:20 p.m., Casey filed Hummel's declination with the State Board of Elections; shortly thereafter, Casey informed Connolly by telephone that the declination was filed; at approximately 12:25 p.m., The Certificate of Substitution was signed by the members of the Committee to Fill Vacancies and Lynch then signed the Certificate of Acceptance; sometime thereafter, Rensselaer County Republican Party Leader and Chairman Casey arrived at Lombardo's to congratulate Democrat Michael Lynch on his Independence Party nomination; at approximately 1:27 p.m., Long filed the Certificate of Substitution with the State Board of Elections.
CONCLUSIONS OF LAW
Petitioner asserts that the Certificate of Substitution is void and defective because it was a product of fraud and a conspiracy in violation of Article 17 of the Election Law in that, Connolly, Lynch, Hummel, and other persons agreed to file Hummel's declination only if the Committee to Fill Vacancies met prior to the filing of the declination and assured Hummel that the Committee to Fill Vacancies would fill the vacancy with Democrat candidate Michael Lynch. Petitioner further asserts, among other things, that the Certificate of Substitution is void because it fails to state a date when the Committee to Fill Vacancies acted and filled the alleged vacancy.
With respect to petitioner's first argument, it is well settled that a declination and Certificate of Substitution procured by fraud and conspiracy are illegal and in violation of Article 17 of the Election Law. Election Law § 17-102, which is entitled "[m]isdemeanors at, or in connection with, primary elections, caucuses, enrollment in political parties, committees, and conventions" specifically delineates unlawful conduct during the convention and election process. Election Law § 17-102 specifically provides, in relevant part, that: any person who "[f]raudulently or wrongfully does any act tending to affect the result of any . . . convention" is guilty of a misdemeanor. Election Law § 17-102 provides, in relevant part, that: any person who "[d]irectly, or indirectly, by himself or through any other person, pays, or offers to pay, money or other valuable thing, or promises a place or position, or offers any other consideration or makes any other promise, to any person, to induce any voter to vote, or refrain from voting, at a . . . convention, for or against any particular person" is guilty of a misdemeanor. Election Law Election Law § 17-102 provides, in relevant part, that: any person who "[b]y menace or other unlawful or corrupt means, directly or indirectly, influences or attempts to influence, the vote of any person entitled to vote at a . . . convention" is guilty of a misdemeanor. In addition, Election Law § 17-158 provides, in relevant part, that any person who
"[w]hile holding public office, or being nominated or seeking a nomination therefor, corruptly uses or promises to use, directly, or indirectly, any official authority or influence possessed or anticipated, in the way of conferring upon any person, or in order to secure, or aid any person in securing, any office of public employment, or any nomination, confirmation, promotion or increase in salary, upon consideration that the vote or political influence or action of the person so to be benefited or of any other person, shall be given or used in behalf of any candidate, office or party or upon any other corrupt condition or consideration" is guilty of a felony ( see Election Law § 17-158 [1]).
Here, the evidence fails to support petitioner's contention that Hummel conditioned his declination on the substitution of Michael Lynch. All of the four witnesses who testified denied knowledge of this information and Hummel, in his affidavit, asserts that his decision to decline the nomination was the product of a myriad of factors, none of which were tied to or conditioned on any particular candidate replacing him. Hummel further asserts that, as a result of his failure to obtain a major party nomination, he weighed his chances of winning against the cost and expense of campaigning, and decided to withdraw. Hummel admits that, during this time, the issue of who would replace him if he declined the nomination did come up but he "never conditioned [his] eventual declination for either Independence or Conservative Party line on any particular individual replacing him." Accordingly, the petitioner has failed to establish by clear and convincing evidence that there was a plan or scheme of fraud in violation of the Election Law ( see Matter of Mahoney v May, 40 NY2d 906).
The Court rejects petitioner's argument that the failure to include the date on the Certificate of Substitution mandates invalidation. The Certificate of Substitution which names Michael Lynch as the new candidate is a one page document divided into three sections. The top section states that a vacancy exists due to the declination of Chris. F. Hummel and names Michael Lynch as the new candidate. This section is signed by the Committee to Fill Vacancies and is dated September 2005. The middle section of the certificate is an affidavit signed by the Committee to Fill Vacancies attesting that the statements contained in the certificate are true. This section is notarized and dated September 29, 2005. The bottom section of the certificate entitled "Consent By Substitution" is signed by Michael Lynch, notarized and dated September 29, 2005.
The Court cannot agree with the petitioner that the failure to include a complete date in the top section of the certificate is a fatal defect. In support of this argument, petitioner cites three Appellate Division cases that are distinguishable from the facts here: Matter of Vassos v New York City Board of Elections, ( 286 AD2d 263), Matter of McKay v Cochran ( 264 AD2d 699) and Matter of Flach v DeBenedictus ( 265 AD2d 670). Vassos and McKay, address designating petitions and the requirements of Election Law § 6-132. In contrast, Election Law § 6-148 governs the requirements for filling a certificate to fill a vacancy. Matter of Flach v DeBenedictus ( 265 AD2d 670), which addresses Election Law § 6-148, holds that the certificate designating a person to fill a vacancy must sign the consent form. The consent requirement, unlike the issue presented here, is specifically addressed in Election Law § 6-148. Election Law § 6-148 (5), states that a certificate to fill a vacancy shall have appended thereto the substituted candidate's "written consent to be so designated or nominated, duly acknowledged." In any event, all four witnesses testified that the Certificate of Substitution was signed on September 29, 2005 at Lombardo's Restaurant, curing any alleged defect with respect to the date of the Certificate of Substitution. Accordingly, it is
ORDERED that the petitioner's application is denied and the petition is hereby dismissed; it is further
ORDERED that respondents New York State Board of Elections, the Albany, Rensselaer, Ulster, Sullivan, Columbia, Greene and Schoharie County Boards of Elections are no longer restrained from certifying or allowing the printing and distributing any ballot for the November 8, 2005 election which contains the name of Michael C. Lynch as the Independence Party Candidate for the office of Justice of the Supreme Court for the Third Judicial District.
All papers, including this decision and order, are being returned to the petitioner. The signing of this decision and order 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.
This constitutes both the decision and order of the Court.
IT IS SO ORDERED.