Opinion
K1-2004-96.
Decided May 10, 2004.
JOHN GULLO, II, ESQ., Attorney for Petitioner.
CHAUTAUQUA COUNTY ATTORNEY'S OFFICE SCOTT F. HARLEY, ESQ., Attorney for Respondents.
FACTS
On September 4, 2003 petitioner, along with five other qualified electors, filed a petition with the Town Clerk of the Town of Mina, pursuant to § 141 of the Alcoholic Beverage Control Law, requesting that two (2) questions be placed before the voters of the Town of Mina at the next general election to be held on November 4, 2003. The questions were as follows:
QUESTION 1. SELLING ALCOHOLIC BEVERAGES TO BE CONSUMED ON THE PREMISES WHERE SOLD.
Shall any person be authorized to sell alcoholic beverages at retail to be consumed on premises licensed pursuant to the provision of Section Sixty-Four of this Chapter?
(Shall restaurants be allowed to sell serve alcoholic beverages?) [emphasis in original]
QUESTION 2.SELLING ALCOHOLIC BEVERAGES NOT TO BE CONSUMED ON THE PREMISES WHERE SOLD.
Shall any person be authorized to sell alcoholic beverages at retail not to be consumed on the premises where sold in the Town of Mina?
(Shall store take-out sales be allowed?) [emphasis in original]
The sufficiency of the petition was not questioned and is not at issue here. On September 5, 2003 the Town Clerk, in compliance with § 141(3) of the Alcoholic Beverage Control Law and § 4-108(1)b of the Election Law, transmitted to the Chautauqua County Board of Elections, a certified copy of the petition containing the text of the proposition to be submitted to the voters. Thereafter, on or before October 15, 2003, the Board of Elections prepared an official ballot which contained the text of the two submitted propositions, except that the parenthetical language in each question was omitted. In fact, the final language appearing on the ballot mirrors the language found in Questions 1. and 3. of group A, § 141 of the Alcoholic Beverage Control Law. It is not disputed that the parenthetical language was added to the two questions by the petitioner in an attempt to clarify to the voters the questions on which they would be voting. And it is agreed that the omission of the parenthetical language was unintentional.
It is unclear as to the exact date that the County Board of Elections determined the questions that would appear on the November 4, 2003 ballot. Election Law § 4-114 requires a County Board of Elections to make that determination not later than the thirty-fifth (35) day before the general election. However, the challenge before the Court is not as to when the Board of Elections determined the questions to be on the ballot, but instead, goes to the language that ultimately appeared on the ballot.
On October 29, 2003 the Board of Elections published a copy of the ballot in two newspapers of general circulation in Chautauqua County.
There was no evidence that the Board of Elections posted a notice in four public places in the Town of Mina, publishing the fact that the local questions would be voted on at the next general election. See § 141(3) Alcoholic Beverage Control Law. But again, this issue is not before the Court.
At the general election held on November 4, 2003, both ballot propositions were defeated.
On January 27, 2004 petitioner Luce filed a Notice of Petition pursuant to Article 78 of the CPLR which requests that the Town Clerk of the Town of Mina and the Chautauqua County Board of Elections accept for re-filing the 2003 petitions and, furthermore, that the Board of Elections be directed to place both questions (including the parenthetical language) on the ballot for the 2004 general election. In the alternative, petitioner requests that the Court waive the three year waiting period contained in § 147 of the Alcoholic Beverage Control Law, thereby permitting a new Petition to be circulated and filed with the Town Clerk.
For the reasons stated below, the Petition must be dismissed.
DISCUSSION
Pursuant to CPLR § 7803(1), petitioner has raised the question as to whether the Chautauqua County Board of Elections "failed to perform a duty enjoined upon it by law". Respondent, Board of Elections, claims that this action should be barred by the applicable Statute of Limitations, that being the 14 day limit appearing in § 16-104(3) of the Election Law. That section provides that a proceeding to contest the wording of any proposed proposition "must be instituted with 14 days after the last day to certify the meaning of any such abstract or form of submission". Election Law § 16-104(3). However, it is the Town Clerk who transmits a copy of the Petition to the County Board of Elections and certifies the text of the proposition to be included on the ballot for the November election. See Election Law § 4-108, Alcoholic Beverage Control Law § 141(3). See also, Lenihan v. Blackwell, 209 A.D.2d 1048 [4th Dept. 1994]. Any proceeding to challenge the language certified by the Town Clerk must be brought within fourteen (14) days after the certification of that language to the Board of Elections. However, it is not the language certified to the Board of Elections that is being challenged by the petitioner herein. It is the language that was ultimately placed on the ballot by the County Board of Elections which is at issue.
But the question of timeliness of this proceeding does not end there. The ballot which failed to contain the parenthetical language was prepared by the Board of Elections on or before October 15, 2003 and thereafter mailed out to absentee voters. The ballot was then published in two newspapers. The petitioner herein was free to inspect the ballot well before the general election was held, but failed to do so. Had he done so and discovered that certain language was omitted from the two propositions, he could have sought relief pursuant to CPLR Article 78 and requested that the Court direct the Board of Elections to include the omitted language on the ballot. Instead, the petitioner "slept on his rights", allowing the ballot proposition to go forward. Flake v. Board of Elections, 122 AD2d 94 [2nd Dept. 1986]. Once the election is held, it is too late to lodge a complaint as to the form of the ballot. People Ex Rel Williams v. Board of Canvassers, 105 A.D.197 [3rd Dept. 1905]. In the case of In Re Hall, 157 Misc. 768, the Court refused to void the results of an election at which questions similar to those at hand were decided. See also Wall v. Great Atlantic Pacific Tea Co., 162 Misc. 635.
It is true that petitioner is not asking this Court to void the results of the election, but rather, is asking the Court to use it's equity powers to waive the three year duration period for the determination made by the voters as provided for in § 147(1) of the Alcoholic Beverage Control Law. But to do so, as a result of an innocent mistake on the part of the Chautauqua County Board of Elections, would be tantamount to thwarting the will of the Legislature and would result in the disenfranchisement of those voters who cast their votes against the propositions. People Ex Rel. Hirsh v. Wood, 148 NY142 [1985]. Also see In Re Merow, 112 App Div 562 [4th Dept. 1906]. It is also noted that the Legislature could have provided for the relief requested by petitioner in the event of any ballot irregularity, but has chosen not to do so.
Finally, the language on the ballot is the exact language required under § 141 of the Alcoholic Beverage Control Law. While the Court does not find it necessary to hold that the statutory language is mandatory, it would certainly appear to be so. The parenthetical language included in the Petition filed with the Town Clerk may be helpful in some respects to some people, but there was no showing on the part of the petitioner that the absence of such language resulted in confusion or any voter being misled.
Based upon the foregoing, the petition is dismissed in its entirety.
This Decision shall constitute the Judgment of the Court.