Opinion
October 1, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered September 23, 1970, declaring null and void the Conservative Party certificate of nomination of John L. Larkin as a candidate for the office of Justice of the Supreme Court for the Third Judicial District. The Third Judicial District contains five assembly districts situate wholly therein and portions of four assembly districts partially therein. Seven delegates were certified for the Conservative Party to the judicial district convention and on September 12, 1970 these seven delegates met in convention and nominated Larkin for said office. The issue for determination is whether the seven constituted a quorum as required by subdivisions 2 and 3 of section 132 of the Election Law. Subdivision 2 of section 132 provides that such a convention "shall be constituted by the election at the preceding primary * * * outside the city of New York from each unit of representation, of delegates and of any alternate delegates provided for by party rules." It is then stated that "The number of delegates and alternates, if any, * * * outside the city of New York from each unit of representation shall be determined by party rules" (emphasis supplied), this being explicitly limited by the clause: "but the number of delegates from each such unit shall be substantially in accordance with the ratio which the number of votes cast for the party candidate for governor on the line or column of the party at the last preceding general state election in such unit bears to the total vote cast at such election for such candidate on such line or column in the entire state". This limitation was derived from the former subdivision 1 of said section which was enacted into law as a part of the Reapportionment Compliance Act (L. 1964, ch. 976, § 7), indicating the Legislature's desire for proportional representation. The rules of the Conservative Party governing such conventions provide for the election of "one delegate and one alternate delegate from each assembly district in the judicial district, and from that portion of any assembly district partially within the Judicial District, for each nine hundred (900) votes or major fraction thereof cast in such assembly district or portion, for the party candidate for governor under the party emblem in the last preceding gubernatorial election. In no event, however, shall any assembly district be entitled to less than one delegate and one alternate delegate" (emphasis supplied). Respondent contends that the judicial district convention for the Third Judicial District should be constituted by the election of 14 delegates and a like number of alternate delegates and appellant urges that the correct total is 11. The dispute centers on the portions of the 104th, 106th and 107th assembly districts within the Third Judicial District which respectively had 247, 166 and 139 votes for the Conservative Party candidate for Governor in the last preceding gubernatorial election. To grant to each of these units of representation one delegate and one alternate delegate would violate the statute which expressly limits the number to one "substantially in accordance with the ratio" specified. For example, the total gubernatorial votes cast by these three units was less than half of that in the 101st assembly district which is alloted but one delegate and alternate. Furthermore, it would be contrary to the Conservative Party rules since, thereunder, one delegate and one alternate delegate is apportioned for each 900 votes or major fraction thereof. Significantly, these rules have been amended so as to now include a "portion of any assembly district partially within the Judicial District" but no change was made so as to include such a portion in the sentence thereof reading "In no event, however, shall any assembly district be entitled to less than one delegate and one alternate delegate." In Matter of Johnson v. Lomenzo ( 28 A.D.2d 965, affd. without opn. 20 N.Y.2d 783), it was stipulated that under the party rules the convention should be constituted by 39 delegates and 39 alternate delegates and it was held that 20 of these would constitute a quorum. That was the pivotal question. The number of votes cast in the prior gubernatorial election in the assembly districts or portions thereof was not in issue. In any event, the effect of the predecessor of the present second sentence of subdivision 2 of section 132 and whether the party rule then existing violated it were not raised or considered. Judgment reversed, on the law and the facts, and petition dismissed, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur.