Opinion
010939/11
08-08-2011
Howard J. Kopel, an Aggrieved Candidate, Petitioner, v. The Nassau County Board of Elections and ADAM H. MOSER, Respondents.
Appearances of Counsel: Counsel for the Petitioner: Bee Ready Fishbein Hatter & Donovan, LLP Kenneth A. Gray, Esq. Counsel for the Respondent Moser: Jaspan Schlesinger LLP Hale Yazicioglu, Esq. Counsel for the Respondent Nassau County Board of Elections: Office of the Nassau County Attorney Alpa J. Sanghvi, Esq. Deputy County Attorney One West Street
Appearances of Counsel:
Counsel for the Petitioner:
Bee Ready Fishbein Hatter & Donovan, LLP
Kenneth A. Gray, Esq.
Counsel for the Respondent Moser:
Jaspan Schlesinger LLP
Hale Yazicioglu, Esq.
Counsel for the Respondent Nassau County Board of Elections:
Office of the Nassau County Attorney
Alpa J. Sanghvi, Esq.
Deputy County Attorney
One West Street
Randy Sue Marber, J.
Papers Submitted:
Order to Show Cause...................................x
Verified Answer with Cross-Petition...........x
Notice of Motion..........................................x
Memorandum of Law...................................x
Affirmation in Opposition............................x
Voter Affidavits............................................x
This election proceeding, brought pursuant to Election Law § 16-102, was commenced by the Petitioner, HOWARD J. KOPEL (hereinafter "KOPEL") seeking an Order: (1) declaring invalid, improper, insufficient and legally ineffective the purported Independence and Working Families Parties (hereinafter WFP) Designating Petitions to designate the Respondent, ADAM H. MOSER (hereinafter "MOSER") for the nomination as County Legislator in the 7th Legislative District of Nassau County; (2) directing, requiring and commanding the Commissioners of the Respondent, NASSAU COUNTY BOARD OF ELECTIONS, (hereinafter "NCBOE") not to place the name of the Respondent, MOSER, on the official ballot as the nominee of the Independence or WFP parties; and (3) declaring the petitions to be a legal nullity, and reversing any contrary determination of the Respondent, NCBOE, which may have been made.
The Petitioner alleges in his verified petition that he is an "aggrieved candidate" within the meaning of the Election Law § 16-102 (1), in that he received the designation of the Republican Party for the office of County Legislator in the 7th Legislative District.
The Petitioner alleges that the Respondent, MOSER, is not an enrolled member of the Independence Party or of the WFP. He further alleges that "no valid timely Certificate of Authorization (a/k/a "Wilson/Pakula" Certificate) has been executed and/or filed with the Nassau County Board of Elections by either the Independence Party or Working Families Party which would allow this non-enrollee to act as its designee or nominee, thus rendering the Petitions invalid". (Petition at ¶ 2)
The Petitioner further alleges that the Respondent, MOSER, is a "substituted candidate" for the original designee, Tikvah Diamond, who was not an enrolled member of the Independence Party or WFP nor the subject of a Certificate of Authorization from either party. As such, the Petitioner alleges that the Respondent, MOSER, is ineligible to act as a substituted candidate even if he obtained a valid and timely Certificate of Authorization.
Finally, the Petitioner alleges that his objections to the designating petitions, specifically, "that they are unaccompanied by any Certificate of Authorization for the purported designee/nominee, who is not an enrolled member of either the Independence or Working Families Party, and who, in the case of the Independence Party, is a substituted candidate for another non-enrolled and authorized purported designee" are valid and proper objections, thereby rendering him an aggrieved candidate.
The Respondent, MOSER, opposes the Petition and submits a motion to dismiss the Petition (Mot. Seq. 02). The Respondent, MOSER, seeks dismissal of the Petition alleging that service of the Petition was defective; that the Petitioner did not have standing to commence the instant proceeding; and that the Petitioner failed to join necessary parties. Alternatively, the Respondent, MOSER, requests the opportunity to ballot for the nomination of the WFP.
The Respondent, NCBOE has taken no position with regard to the instant Petition.
Service :
Preliminarily, the Court will address the Respondent, MOSER's argument in his Motion to Dismiss that the Petition should be dismissed due to the Petitioner's failure to affix the index number and date of filing to the Petition which was served as required by the Order to Show Cause. Counsel for the Respondent, MOSER, argues that said failure is jurisdictional in nature, and, thus, fatal to the Petition. However, it has been held that in a proceeding to invalidate a petition designating a candidate in a primary election, the failure of the petitioner to affix an index number and filing date to the petition served on the candidate, as specified in the order to show cause, is not a jurisdictional defect and is excusable, where the petitioner purchased an index number, filed a signed Order to Show Cause and served the candidate in accordance with the terms of the Order to Show Cause within the applicable statute of limitations period. Harris v. Williams, 264 AD2d 453 (2d Dept. 1999); see also Matter of City of Amsterdam v. Board of Assessors of Town of Providence, 237 AD2d 63 (3d Dept. 1998).
In the instant matter, the record reveals that the Petitioner purchased an index number, filed a signed Order to Show Cause and served the signed Order to Show Cause and Petition, together with supporting papers, by delivering a true copy of same to a recognized overnight delivery carrier for delivery upon the office of Steven R. Schlesinger, Jaspan, Schlesinger, LLP, who agreed to accept such service pursuant to the service clause contained in the Order to Show Cause. (See Affidavit of Service, dated July 26, 2011). Accordingly, the Petitioner's failure to affix the index number and date of filing to the petition is excusable under the circumstances.
Standing :
The Respondent, MOSER, argues that the Petition should be dismissed in its entirety as the Petitioner lacks standing to challenge the Certificate of Authorization issued to him by the WFP as the Petitioner is not an enrolled member of the WFP. The Respondent, MOSER, asserts that the claims raised by the Petitioner "are to the Certificate of Substitution and the Certificate of Authorization issued by the Working Families Party". He further asserts that the Petitioner is seeking to "look behind" the Certificate of Authorization to challenge its issuance to him claiming that even if a timely Certificate of Authorization was filed, his designation and authorization should be declared invalid. This, the Respondent argues, is an underlying challenge to the internal affairs and operating functions of the WFP in its designation of the Respondent, MOSER, as a substituted candidate and its issuance of the Certificate of Authorization. The Respondent concludes that "Insomuch as Petitioner is not an enrolled member of the Working Families Party, he lacks standing to challenge the validity of the Certificate of Substitution and the Certificate of Authorization issued by the Working Families Party to Respondent-Candidate".
In opposition to the Respondent, MOSER's attack on the Petitioner's standing, the Petitioner's counsel asserts that the Petitioner's challenge is "predicated in the WFP's failure to timely file with the NCBOE a Wilson-Pakula certificate, which is a statutory mandate". The Petitioner's counsel alleges that the WFP never filed with the NCBOE a Certificate of Authorization naming the Respondent, MOSER. However, the Petitioner's counsel does acknowledge that the Respondent submits a copy of Certificate of Authorization, date stamped by the NCBOE on July 27, 2011 . This, he argues, "is insufficient to resurrect the underlying designating petition for Tikvah Diamond, who declined to be a candidate, which designating petition is deemed void as a result of the failure to timely file a Wilson-Pakula certificate with the NCBOE". The Petitioner's counsel further asserts that "the failure to file a Wilson-Pakula authorization constitutes a "fatal defect" in derogation of the legislatively mandated requirements of section 6-120(3) of the Election Law". The Petitioner's counsel additionally asserts that the "WFP's belated filing of a certificate of authorization with the NCBOE naming the Respondent fails to cure the infirmity of having already failed to timely file it".
The Court notes that a copy of the envelope it was sent in to the NCBOE was postmarked on July 26, 2011 and thus the Certificate of Authorization would be deemed timely filed within four (4) days of the date of the filing of the Certificate of Substitution pursuant to Election Law § 1-106.
Citing Gross v. Hoblock, 6 AD3d 933 (3d Dept. 2004), the Petitioner's counsel asserts that because the Petitioner's challenge arises from a failure to comply with a statutory requirement, rather than an internal party process, the Petitioner has standing to challenge the WFP's failure to timely file a Wilson-Pakula Certificate with the NCBOE, naming the Respondent, MOSER.
Clearly, both the Petitioner and the Respondent agree that standing is to be determined based upon whether the Petitioner's challenge is based upon the alleged lack of compliance with Election Law § 6-120 and other provisions of the Election Law "which have as their intended purpose the regulation of the internal affairs of a political party". See Kopell v. Garcia, 275 AD2d 587 (3d Dept. 2000). Should the Court determine that the Petitioner's challenge is to the internal affairs and/or operating functions of the WFP, then the Petitioner, not being an enrolled member of the WFP, would not be deemed aggrieved as he would have no interest in whether the formalities of that process were adhered to. However, if the Court were to determine that the Petitioner's challenge is to a legislatively mandated requirement of the Election Law, the interests of the Petitioner would transcend the mere regulation of the affairs of the WFP and standing will lie. See Hunter v. New York State Board of Elections, 32 AD3d 662 (3d Dept. 2006); Goodell v. Parment, 76 AD3d 1169 (4th Dept. 2010).
The Petitioner herein is not challenging the authority of the WFP to designate a candidate nor is the Petitioner challenging the "internal affairs" of the WFP. Clearly, what the Petitioner is challenging is whether there was adherence with the legislatively mandated requirement of Election Law § 6-120 (3).
The Petitioner specifically challenges the validity of the Declination of Tikvah Diamond as she never received a Certificate of Authorization from the WFP prior to her submission of her Certificate of Declination dated July 14, 2011 and date stamped by the NCBOE on July 15, 2011 at 3:19 p.m. This challenge is a challenge to the adherence with a legislatively mandated requirement of the Election Law, not to the internal affairs of the WFP.
The Petitioner also specifically challenges the validity of the substitution of the Respondent, MOSER, alleging that a vacancy was never created since Tikvah Diamond was never an authorized candidate of the WFP, and, thus, could not properly decline the nomination. The Petitioner's challenge to the substitution is likewise a challenge to the adherence with a legislatively mandated requirement of the Election Law.
Finally, the Petitioner challenges the timing of the filing of the Certificate of Authorization for the Respondent, MOSER. Once again, the Petitioner's challenge to the timing of the filing of the Certificate of Authorization for the Respondent, MOSER, is a challenge to the adherence with the legislatively mandated requirements of the Election Law, not to the internal affairs of the WFP.
Accordingly, this Court finds that the Petitioner is an "aggrieved candidate" pursuant to Election Law § 16-102 and thus, has standing to object to the Certificates of Substitution and Authorization based upon the Respondent's alleged failure to comply with mandated requirements of the Election Law.
Necessary Parties :
The Respondent, MOSER, moves to dismiss the Petition on the further ground that the Petition fails to name all necessary parties. Specifically, the Respondent asserts that the Committee to Fill Vacancies and the Executive Board of the WFP were necessary parties. The Respondent argues that the failure to name and serve them is a fatal defect that warrants dismissal of the Petition.
The Respondent avers that a proceeding to challenge the validity of a Certificate of Authorization pursuant to Election Law § 16-102 requires the joinder of the executive committee who issued the authorization. The failure to name the Committee to Fill Vacancies and the Executive Board of the WFP, is, according to the Respondent, a fatal defect that mandates dismissal.
In opposition to the Respondent, MOSER's claim that the Petitioner failed to name necessary parties, the Petitioner's counsel argues that since the Petition does not challenge how the WFP arrived at the decision to select the Respondent as a candidate, but rather "challenges the subsequent failure to timely file a certificate of authorization with the NCBOE naming the Respondent", it is not a challenge to the internal party workings of the WFP.
As stated above, the validity of the Declination of Tikvah Diamond, the validity of the substitution of the Respondent, MOSER, and the timing of the filing of the Certificate of Authorization for the Respondent, MOSER are the challenges being submitted by the Petitioner. These are challenges to the Respondent's failure to adhere with the legislatively mandated requirements of the Election Law, not to the internal affairs of the WFP.
Accordingly, this Court finds that the Petitioner's failure to name the Committee to Fill Vacancies and the Executive Board of the WFP as necessary parties is not a fatal defect that mandates dismissal of the Petition.
Merits of the Petition :
The Court having considered the Respondent, MOSER's Motion to Dismiss, it shall now decide the merits of the Petition.
The Petitioner alleges that the Declination of Tikvah Diamond was a nullity in that she never received a Certificate of Authorization for the WFP. The Respondent contends that neither Election Law § 6-120 (3) nor any "binding authority" mandates that an "intermediate" Certificate of Authorization be filed between the time that the nominating petition and the Certificate of Declination is filed. Specifically, the Respondent contends that a Certificate of Authorization for Tikvah Diamond was not required and that with respect to the Respondent, MOSER, the Certificate of Authorization was filed within the four (4) days following the filing of the Certificate of Substitution.
The Petitioner's counsel, in his Affirmation submitted in opposition to the Respondent's Motion to Dismiss, argues that the Certificate of Authorization filed by the WFP, bearing the NCBOE's date stamp of July 27, 2011, is insufficient to "resurrect the underlying designating petition for Tikvah Diamond, who declined to be a candidate, which designating petition is deemed void as a result of the failure to timely file a Wilson-Pakula certificate with the NCBOE". (Affirmation of Kenneth A. Gray, Esq., dated 8/3/11 at ¶ 7) Furthermore, he avers, that the failure to file a Wilson-Pakula authorization constitutes a "fatal defect" in derogation of the legislatively mandated requirements of Election Law § 6-120 (3).
There is no question that a candidate may be substituted when a designated candidate has declined the designation. It this matter, however, there is a dispute as to whether the original candidate, Tikvah Diamond, was a designated candidate for the WFP. The designating petition of a person not enrolled in the party is not valid unless a Wilson-Pakula authorization has been filed. "In the absence of a valid designating petition, a declination does not create a vacancy within the meaning of the Election Law". See Matter of Hunter v. New York State Bd. Of Elections, 32 AD3d 662 (3d Dept. 2006); Matter of Terranova v. Fudoli, 66 AD3d 1530 (4th Dept. 2009). As in Hunter and Terranova, in the instant matter, because a Wilson-Pakula authorization for Tikvah Diamond's designation was never filed, her designating petition was not valid at the time of her Declination. Therefore, no vacancy was created and the substitution of MOSER for Diamond was invalid.
Accordingly, the substitution of the Respondent, MOSER, as a candidate for the WFP is invalid.
Inasmuch as there is no proof offered that either Tikvah Diamond or the Respondent, MOSER, received a Wilson-Pakula certificate from the Independence Party, the Respondent, MOSER's name shall not be on the official ballot for the Independence Party.
Opportunity to Ballot :
The Respondent, in the alternative, requests the equitable remedy of an opportunity to ballot to be granted to the WFP. The Petitioner does not address the Respondent's request in the Affirmation in Opposition submitted by his counsel.
The "Opportunity to Ballot" remedy was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. See Harden v. Board of Elections, 74 NY2d 796 (1989). This remedy was first articulated by the Court of Appeals in Hunting v. Power, 20 NY2d 680 (1967), to ensure that the voters enrolled in a given party be given an opportunity to choose a candidate, as "justice required".
Here, the Court is without the benefit of knowing why the WFP did not file a Wilson-Pakula certificate for Tikvah Diamond. The WFP was not made a party to this action. Nor is the Court aware of whether the WFP intended to file a Wilson-Pakula certificate for Tikvah Diamond, as there still was time to do so. In that regard, the record establishes that Tikvah Diamond's Declination was acknowledged on July 14, 2011 and filed the next day on July 15, 2011 at 3:19 p.m. As such, the WFP, technically, still had an opportunity to file the Wilson-Pakula Certificate on behalf of Tikvah Diamond within the statutory time period.
In the instant matter, the filed petitions clearly reflect the intention of the requisite number of qualified voters of the WFP (there is no challenge submitted as to the authenticity of the signatures in the designating petitions) to designate "some" candidate for the elective office. The submission of the Certificate of Substitution and Wilson-Pakula Certificate from the WFP designating the Respondent, MOSER, as a candidate, clearly reflects the intention of the Party for there to be "some" candidate for the elective office from the WFP.
Under these circumstances, the Court concludes that justice requires that the WFP be afforded an opportunity to ballot.
Accordingly, it is hereby
ORDERED, that the designating petitions for Tikvah Diamond and the Respondent, ADAM H. MOSER, for the Independence Party and the Working Families Party are declared invalid; and it is further
ORDERED, that the Respondent, Nassau County Board of Elections is directed to afford the members of the Working Families Party an opportunity to ballot for the public office of County Legislator for the 7th Legislative District at the primary election scheduled to be held on September 13, 2011.
This constitutes the Decision, Order and Judgment of the Court.
DATED:Mineola, New York
___________________________
Hon. Randy Sue Marber, J.S.C.
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