Opinion
88007
05-06-2019
Norman L MARSH, Petitioner, v. John W. HALE, Respondent-Candidate, Cortney Spittler and Kevin C. Burleson Commissioners Constituting the Cattaraugus County Board of Elections. Respondents.
Eric Firkel, Esq., Attorney for Petitioner Norman L. Marsh Edward A. Sundquist, Esq., Attorney for Respondent John W. Hale Jeffrey T. Bochiechio, Esq., Attorney for (Acting) Commissioner Courtney Spittler Jerome D. Schad, Esq., Attorney for Commissioner Kevin Burleson
Eric Firkel, Esq., Attorney for Petitioner Norman L. Marsh
Edward A. Sundquist, Esq., Attorney for Respondent John W. Hale
Jeffrey T. Bochiechio, Esq., Attorney for (Acting) Commissioner Courtney Spittler
Jerome D. Schad, Esq., Attorney for Commissioner Kevin Burleson
Dennis E. Ward, J.
DECISION & JUDGMENT
This proceeding under Election Law § 16 -102 was commenced by the Petitioner, Norman L. Marsh, a Republican candidate for the Cattaraugus County Legislature, in the 4th District. Petitioner seeks to invalidate two Democratic Party designating petitions of Respondent John W. Hale, one naming him as a candidate for the Randolph Town Council, and the other naming his as a candidate for the County Legislature, also for the 4th District. This matter was returnable on April 25, 2019, at which time counsel for all parties appeared. After hearing argument on the papers and exhibits submitted, the court reserved decision for a summary determination of the issues ( Election Law § 16-116 ).
Ruling on All Issues :
The time period is relatively short within which Election Law cases need to be decided. Such cases are given a top priority over all other cases on the court's civil calendar. 22 NYCRR § 202.64.
It is also preferable that the trial court rule on all issues raised by the parties in order to ensure full appellate review of all such issues, without the possible need for remand for additional rulings on undecided issues, even if they may be deemed moot by the trial court's decision. Matter of Farrell v. Sunderland , 173 Misc 2d 787 (Sup. Ct. Westchester Co. 1997) ; see, also Matter of Halloway v. Blakely , 77 AD2d. 932 (2nd Dept. 1980) ; Matter of Fotopoulos v. Board of Elections of City of NY , 64 AD2d 878 (1st Dept. 1978, dissent of J. Silverman), aff'd, 45 NY2d 807 ; Matter of Stampf v. Hill , 218 AD2d 919 (3rd Dept. 1995).
I. Jurisdiction
1. Timeliness of the Service of Papers :
In order to properly and timely commence such an invalidation proceeding under Election Law § 16-102, the Petition must be filed in the office of the County Clerk and service must be completed before the expiration of the statute of limitations. All parties agree that date was April 18, 2019.
The Petitioner's affidavit of service indicates that service was made in compliance with the service provision of the Order to Show Cause by both leaving a copy of the Order to Show Cause and Petition affixed to the Respondent Hale's residence door (on April 18, 2019) and using FEDEX Delivery Service for next day (April 19, 2019) delivery.
Consistent with the holding of Matter of Angletti v. Morreale , 25 NY3d 794 (2015), if a copy of the papers is affixed to the door of the Respondent's dwelling before the expiration of the statute of limitations, the fact that the delivery of another copy was not actually accomplished until the next day, does not constitute late delivery. See, also, Matter of Lapp v. Smolinski , 131 AD3d 805 (4th Dept. 2015). The paperwork served upon the Respondent Hale was therefore timely served within the 14 day statute of limitations under Election Law § 16-102.
2. Filing of the Papers :
The proper commencement of a special proceeding, such as the present one under Election Law § 16-102, is provided for in CPLR 304. The general rule is that the original verified petition must be filed first, before service of process can properly be made. And, of course, the filing of the original petition in the office of County Clerk and subsequent service of a copy thereof together with a copy of the order to cause must be accomplished before the expiration of the statute of limitations - here, acknowledged to be April 18, 2019.
Respondent Commissioner Burleson moves for the dismissal of the entire proceeding due to a failure of the Petitioner to file the original Order to Show Cause first (although he did file the Verified Petition).
A single Commissioner from a split Respondent Board of Elections may properly appear but is a party with limitations on his/her capacity to act. Because a single Commissioner is not the "Board" (s)he does not possess the legal capacity to take actions on behalf of the Board ( Election Law § 3-212 [2] ). Matter of Graziano v. County of Albany , 3 NY3d 475 (2006) ; Matter of Scannapieco v. Riley , 132 AD3d 705 (2nd Dept. 2015). Matter of Terranova v. Fudoli , 66 AD3d 1530 (4th Dept. 2009) ; Matter of Sheldon v. Jaroszynski ; 142 AD3d 762 (4th Dept. 2016).
However, being a party who is participating in an ongoing legal proceeding, he is permitted to make motions on certain matters affecting her/his interests within such a proceeding. See, e.g. , Matter of McCormack v. Jablonski , 132 AD3d 921 (2nd Dept. 2015) ; Matter of Connolly v. Chenot , 275 AD2d at 585.
The law in New York had always previously required the filing of both the original Order to Show Cause and the original Petition before service in order to timely commence an election proceeding. Matter of Zicari v. Stewart , 207 AD2d 951 (4th Dept. 1994).
However, in 2001, CPLR 304 was amended to permit a special proceeding to be commenced by the filing of the original verified petition alone. Matter of Mendon Ponds Neighborhood Ass'n v. Dehm , 98 NY2d 745 (see, fn. 1) ; Matter of Antoine v. Boyland, 21 Misc 3d 298 (Sup. Ct., Kings County, 2008).
The proper procedure now for most special proceedings, including Election Law matters, allows a petitioner to first file only the original petition in the office of the County Clerk (usually with an unsigned copy of the proposed order to show cause). Thereafter, the petitioner is assigned a judge who then signs the original order to show cause with service instructions and a return date. Proper and timely service of copies thereof must then be made before the expiration of the statute of limitations imposed by the applicable section of Article 16 of the Election Law. Matter of Conti v. Clyne, 120 AD3d 884 (3rd Dept. 2014).
In the present case, the original Petition was timely filed by the Petitioner before the expiration of the statute of limitations on April 18, 2019. Service of the papers (copies of both the original Order to Show Cause and the original Petition) was then effected upon both the Board of Elections and the Respondent candidate Hale by that date as well. The original Order to Show Cause was thereafter filed in the office of the County Clerk on April 25, 2019, the return date for the Petition to be heard.
Although a copy of the original Order to Show Cause was served before the original was filed in the County Clerk's office, the filing of the Petition alone was sufficient to timely commence the proceeding. The court therefore has jurisdiction to consider the Petition and the relief sought therein.
II. Standing :
The relief sought by the Petitioner is the:
1) Invalidation of Hale's designating petition for county legislator.
2) Invalidation of Hale's designating petition for town councilman.
3) Implicitly, invalidation of the Hale certificate of declination of the councilman position, dated and filed with the Board of Elections on April 10, 2019.
Neither the Petitioner nor any other qualified voter filed objections against either of Mr. Hale's designating petitions for councilman or county legislator as provided for by Election Law § 6-154(2). Likewise, neither Petitioner nor any other qualified voter ever filed objections against the Hale certificate of declination (of the councilman designation), dated April 10, 2019 and filed with the Board of Elections.
Without objector status, the only basis upon which the Petitioner has to seek such invalidations under Election Law § 16-102 is as an "aggrieved candidate". He admittedly has such status against the county legislator petition since he is a candidate for that same office. Matter of Martin v. Tutunjian , 89 AD2d 1034 (3rd Dept. 1982). However, since Petitioner is not himself a candidate for Randolph Town Council, he does not have "aggrieved candidate" status as to that office. Therefore, the court does not have jurisdiction to entertain his invalidation proceeding as to that office.
If both of the Hale designating petitions had been on a single document, the court would arguably have had jurisdiction to proceed against both. See, Matter of Hardwick v. Ward , 109 AD3d 1223 (4th Dept. 2013). Alternatively, had there been a qualified objector for each petition or an aggrieved candidate for each petition, such a jurisdictional issue would not be presented.
However, the Petitioner has no standing to seek the invalidation of the Hale designating petition for Randolph Town Council being on a separate document. Matter of Levine v. Turco, 43 AD3d 618 (3rd Dept. 2007) . Therefore, this proceeding, insofar as it seeks to invalidate the councilman petition, must be dismissed on that ground.
It should also be noted that because no objections were filed to Hale's certificate of declination of the Councilman designation, the Board of Elections must accept it on its face, as it is presumptively valid. Matter of Lavell v. Baker , 153 AD3d 1135 (4th Dept. 2017). Although the date is two days later than the likely final day for the filing of most declinations, there are circumstances where a later date is acceptable. See, e.g. , Election Law, § 6-158(3). Without a specific objection as to its validity, the Board is bound to accept it as facially valid. Matter of Kryzan v. New York State Board of Elections , 55 AD3d 1217 (3rd Dept.2008).
The declination is therefore valid on its face and the committee to fill vacancies named in the underlying designating petition should be given an opportunity to fill such vacancy as soon as practicable. Election Law § 6-158(13).
III. Only One Petition Before the Court :
The Petitioner therefore only has standing to maintain an invalidation proceeding under Election Law 16-102 against the Respondent Hale's county legislator candidacy. However, since the town council candidacy of Hale has ceased due to the declination, there is now no conflict with Hale being a candidate for two different incompatible offices. The Petition must therefore be dismissed as to the Hale county legislator candidacy, as well.
IV. Substantive Law :
The law in New York State is that a person may not simultaneously circulate a petition and seek election to two different public offices which are incompatible. Matter of Burns v. Wiltse , 303 NY 319 (1951) ; Matter of Lawrence v. Spelman , 264 AD2d 455 (2nd Dept. 1999). But see , Matter of D'Angelo v. Maloney , 164 AD3d 1078 (3rd Dept. 2018).
There is nothing in the record to indicate that Cattaraugus County has enacted a local law, pursuant to Municipal Home Rule Law § 10(1)(a)(13)(b), which would permit town officials to simultaneously hold the office of county legislator, and, as relevant here, the office of Town of Randolph councilman. See also , Cattaraugus County Local Law 6 -1968 (Section 5). Therefore, the standard prohibition against such dual office holding as contained in County Law, § 411, is applicable to Cattaraugus County.
V. Invalidation Not the Proper Remedy :
Were the court to reach the issue of two designating petitions filed for two different public offices that are incompatible, the requested remedy of invalidation is improper. See, Matter of Lawrence v. Spelman , 264 AD2d at 455.
The court in Lawrence , relying upon the authority of Matter of Owens v. Sharpton , 45 NY2d 794 (1978), held that such a violation did not invalidate the underlying designating petitions themselves but merely disqualified the named candidate from running on each such petition. See also , Matter of Fotopoulos v. Board of Elections of City of NY, 45 NY2d 807 (1978).
If, as here, each such petition had a committee to fill vacancies, and in the absence of any fraud, each committee would then be permitted to select a substituted candidate for any candidacy so disqualified. See , Election Law, § 6-148 ; and see generally , Matter of Hensley v. Efman , 192 Misc 2d 782 (Sup. Ct. Nassau Co. 2002). There is no evidence of any fraud or fraudulent intent in the record before the court.
Such committee(s) would then be afforded a reasonable period of time after the entry of the court's judgment to substitute a new candidate for each office. See, e.g., Matter of Parete v. Hunt , 287 AD2d 777 (3rd Dept. 2001).
Conclusion :
For the procedural and substantive reasons stated, the Petition seeking invalidation of both designating petitions of the Respondent candidate Hale, is in all respects denied. In order to practically rectify the circumstances facing the Board of Elections, the court hereby directs the Board to accept the Hale declination for Randolph Town Council and notify the committee to fill vacancies on that designating petition of the vacancy to be filled ( CPLR 3017 [a] ).
This decision shall constitute the judgment of the court.
Papers considered in this decision:
1) Order to Show Cause and Petition dated April 17, 2019.
2) Affirmation in Support and Verified Answer (Commissioner Spittler) dated April 23 2019.
3) Answer (Commissioner Burleson), dated April 23, 2019.
4) Answer of Respondent John W. Hale, dated April 24, 2019.
5) Petitioner's Memorandum of Law, dated April 23, 2019.