Opinion
Index No.: E2021004429
06-09-2021
DONALD MAZZULLO, as an enrolled Conservative Party member, registered voter residing in Monroe County, and as Chairman of the Monroe County Conservative Party and the MONROE COUNTY CONSERVATIVE PARTY, Petitioners , v. TED BARNETT, CHRISTINE BROWN, CURRAN BROWN, EVELYN CHAFFER, EMMA FERRANTE, ANNA FIORUCCI, ERIK GYSEL, LORI GYSEL, POLLY HANNA, BRUCE HELLMAN, LINDA HELLMAN, YONG BOM KIM-FREDELL, PATRICIA KRAUS, ROBERT KRAUS, CAMILLE LAVECCHIA, BRENDAN RAYMOND, ERIC SMUTZ, LESLIE SMUTZ, KYLE TRACY, RYAN TRAVERS, JAMES CHAIZE, the MONROE COUNTY BOARD OF ELECTIONS, and the NEW YORK STATE BOARD OF ELECTIONS, Respondents. For an Order, pursuant to Article 16 of the Election Law, Election Law sections 16-100, 16-102, 16-110, and 16-116, CPLR Article 78, and CPLR sec. 3001 ordering, declaring and/or adjudging as just determination that Respondent voters are not in sympathy with the Conservative Party and ordering the disenrollment of Respondent voters as Conservative Party members.
NYSCEF DOC. NO. 13
Decision and Judgment
Daniel J. Doyle, J.
Donald Mazzullo, the Chairman of the Monroe County Conservative Party (hereinafter "Mazzulo") brought a Verified Petition pursuant to Election Law § 16-110 (2) seeking an Order directing the New York State Board of Elections and the Monroe County Board of Elections to cancel each Respondents' enrollment in the Conservative Party.
Election Law § 16-110 (2) states:
2. The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon a written complaint by an enrolled member of such party in such county and after a hearing held by him or by a sub-committee appointed by him upon at least two days' notice to the voter, personally or by mail, determine that the voter is not in sympathy with the principles of such party. The Supreme Court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party at least ten days before a primary election, shall direct the enrollment of such voter to be cancelled if it appears from the proceedings before such chairman or sub-committee, and other proofs, if any, presented, that such determination is just.
This Petition was filed on May 19, 2021 by way of Order to Show Cause, and the Court signed the Order the same day directing service upon the Respondents by May 25th and directing a return date of June 8th. All Respondents, with the exception of Respondent Camille Lavecchia, appeared by counsel with the filing of a Verified Answer. Respondent Lavecchia has failed to appear or respond in any way.
The following facts are established by the verified pleadings and are uncontested:
1. Petitioner Mazzullo is the Chairman of the Monroe County Conservative Party and is a duly enrolled voter for the periods relevant to this proceeding.
2. On April 26, 2021, Mazzullo received a written complaint from Jennifer McLaren (hereinafter "McLaren"), an enrolled Conservative Party member and registered voter. In her letter McLaren advises Mazzullo of her concern that a group of individuals in the Town of Rush, NY have recently registered in the Conservative Party in what she believes is a disingenuous effort to use the Conservative Party to elect individuals who didn't truly share the belief of the Conservative Party. The letter indicates that 21 residents of Rush recently registered in the Conservative Party, that none of these individuals were members of the Conservative Party previously and that these newly filed registrations were filed near the State deadline for changes in registration. These 21 residents referred to in the McLaren letter are the Respondents in this proceeding. Among the 21 new registrants are Respondents Ted Barnett (hereinafter "Barnett"), Evelyn Chaffer (hereinafter "Chaffer"), and
Anna Fiorucci (hereinafter "Fiorucci"). Barnett switched his registration from the Democrat Party to the Conservative Party on January 5, 2021, Chaffer switched her registration from the Republican Party to the Conservative Party on December 21, 2020, and Fiorucci switched her registration from the Democrat Party to the Conservative Party on December 30, 2020. Thereafter Barnett, Chaffer and Fiorucci appeared on petitions as Conservative Party candidates for political office in the Town of Rush. Barnett, who also was listed by the Rush Democrat Committee as a committee member, appeared as a Conservative Party candidate for Town Supervisor and Chaffer and Fiorucci appeared as candidates for Town Council. These petitions were signed by Respondents Christine Brown, Curran Brown, Evelyn Chaffer, Anna Fiorucci, Erik Gysel, Lori Gysel, Polly Hanna, Bruce Hellman, Yong Bom Kim-Fredeil, Patricia Kraus, Robert Kraus, Eric Smutz, Leslie Smutz and Kyle Tracy. Yong Bom Kim-Fredell switched registration from the Democrat Party to the Conservative Party on October 28, 2020, Kyle Tracy switched registration from the Democrat Party to the Conservative Party on December 16, 2020, and James Chaize switched registration from the Democrat Party to the Conservative Party on February 7, 2021. The letter to Mazzullo also noted that Debra Kusse, the Public Notary who notarized some of the Respondents' petitions was listed as a committee member of the Democrat Party. Additionally, on the cover sheet filed with the Respondents' petitions, an agent is identified who is to be contacted in the event there are any deficiencies with the petitions. The individual identified as agent is Donald Scheg, who is also identified as the Leader and Chair of the Town of Rush Democrat Committee.
3. Following receipt of the letter, on April 30, 2021, Mazzullo sends a notice to each of the 21 Respondents informing them that pursuant to Election Law § 16-110 he will be conducting a hearing for the purpose of determining whether the Respondents are in sympathy with the principles of the Conservative Party. The Respondents are notified to appear at the Scottsville Fire Department Pavillion, on May 6, 2021 at 4:00 p.m.. Mazzullo also advises the Respondents that a court reporter will be present for the hearing and that COVID related safety protocols will be followed. All but one of the Notices were delivered by the United States Postal Service on May 1, 2021. Mazzullo was notified by the United States Postal Service that notice sent to Respondent Ryan Travers was undeliverable because Travers had moved and there was no forwarding address.
4. On May 6, 2021, Mazzullo received affidavits from most of the Respondents. Although Mazzullo claims he received 14 affidavits, there are 15 affidavits attached to Respondents' Verified Answer. The affidavits are from Respondents Ted Barnett, Christine Brown, Curran Brown, Evelyn Chaffer, Anna Fiorucci, Erik Gysel, Polly Hanna, Bruce Hellman, Yong Bom Kim-Fredell, Patricia Kraus, Robert Kraus, Eric Smutz, Leslie Smutz and Kyle Tracy. All of the affidavits are very similar in appearance and content. Each affidavit contains a statement that acknowledges they understand they are being requested to attend a hearing to determine whether
they are sympathetic to the principles of the Conservative Party. Each affidavit contains a statement that they will not be attending the hearing. And each affidavit provides some statements that the affiant proposes establishes their adherence to Conservative principles. None of the affidavits seek an adjournment or any type of accommodation. 13 of the affidavits are notarized by the same Notary Public, Paul Corbin. Mr. Corbin is a member of the Monroe County Democrat Committee and is also the spouse of Amber Corbin, a Democrat elected official in the Town of Rush who is seeking re-election. The affidavits of Ted Barnett and Polly Hanna, although similar in form and appearance, are notarized by different Notary Publics.
5. None of the Respondents appeared for the hearing. None of the Respondents request an adjournment of the hearing or any other type of accommodation.
6. On May 12, 2021, Mazzullo issues a written determination that the 21 Respondents are not in sympathy with the principles of the Conservative Party and that they should be disenrolled.
7. The Court takes Judicial Notice that New York's Primary Election begins with early voting on June 12 through June 20, 2021. Primary Election Day is June 22, 2021.
The Court finds that the Petitioner has complied with all of the procedural requirements of Election Law § 16-110 (2). Mazzullo received a written complaint from McLaren, an enrolled Conservative Party member. McLaren complained that the Respondents had changed enrollment to the Conservative Party for improper reasons and that the Respondents were not sympathetic to the ideals of the Conservative Party. McLaren's letter provids more than sufficient information for Mazzullo to form a reasonable suspicion that the Respondents had switched their registration to the Conservative Party not because of Conservative beliefs, but rather to infiltrate the party improperly for the benefit of Barnett, Chaffer and Fiorucci. The Court also finds that there was a reasonable basis for Mazzullo to suspect that members of the Rush Democrat Committee were part of a concerted effort to infiltrate the Conservative Party in advance of the 2021 Primary Election and 2021 General Election.
Based upon this information and pursuant to Election Law § 16-110 (2), Mazzullo had statutory authority to notice and conduct a hearing to determine whether the Respondents were "in sympathy with the principles" of the Conservative Party. It is uncontested that Mazzullo's Notice was sufficient and properly served upon each Respondent. All of the Respondents were afforded a fair opportunity to appear at the hearing. Respondents Ted Barnett, Christine Brown, Curran Brown, Evelyn Chaffer, Anna Fiorucci, Erik Gysel, Polly Hanna, Bruce Hellman, Yong Bom Kim-Fredell, Patricia Kraus, Robert Kraus, Eric Smutz, Leslie Smutz and Kyle Tracy submitted affidavits to Mazzullo that could reasonably be interpreted by Mazzullo as a refusal to appear.
The Court's role in this proceeding is limited. The Court must determine whether the Chairperson reached their determination on the basis of sufficient evidence and is just (see Farrell v. Morrissey, 32 AD3d 1362 [4th Dept. 2006], Walsh v. Abramowitz, 78 AD3d 852 [2nd Dept. 2010]). The Court finds that there is sufficient evidence and that the decision of Mazzullo is just under the circumstances.
The Court notes that none of the facts listed above were contested by the Respondents. In their opposition to the petition the Respondents present legal arguments in support of their position that the Petitioner should be denied the requested relief. Their arguments can be summarized to stand for the proposition that because of the Party's previous endorsements and apparent inconsistent positions, there is no clear set of principles by which to fairly evaluate the Respondents and, accordingly, any conclusion that the Respondents lack appropriate sympathies must fail. The Respondents have failed to provide any caselaw to support this argument and the Court finds their arguments unpersuasive. Whether the Conservative Party previously endorsed candidates and whether those candidates perfectly embodied Conservative principals after endorsement is immaterial to whether the Conservative Party has base principles that was the purpose of the party's creation and continuation. Similarly, to the extent that the Conservative Party has appeared to be inconsistent in its support of particular positions is not material to an application under Election Law § 16-110 (2). Further, the Court notes that the failure and/or refusal of Respondents to appear is appropriately held against them for the purpose of this Petition (see Zuckman v. Donohue, 298 NY 627 [1948]; Farrell v. Morrissey, 32 AD3d 1362 [4th Dept. 2006], Walsh v. Abramowitz, 78 AD3d 852 [2nd Dept. 2010]). If the Respondents sought to challenge any potential finding that they lacked sympathy to the principles of the Conservative Party, they needed first to appear for the hearing set by Mazzullo and afford Mazzullo the opportunity to ask questions.
Respondents' also request the Court to accept the affidavits submitted in lieu of appearing at the hearing as prima facie evidence of the Respondents' appropriate sympathies to the Conservative Party. The Court declines to do so. The Election identifies the procedure for this process and specifically provides that the Chairman of a Party may determine that an enrolled member of the Party is not in sympathy with the principles of the Party "after a hearing." When presented with an issue of statutory interpretation, the court's primary consideration "is to ascertain and give effect to the intention of the Legislature" (Riley v. County of Broome, 95 NY2d 455, 463 2000] [internal quotation marks and citation omitted]). Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences (see People v. Santi, 3 NY3d 234, 242 [2004]; Matter of ATM One v. Landaverde, 2 NY3d 472, 477 [2004]; McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 141, 143). The Court finds that the Petitioner has a statutory right to a hearing and that the failure of Respondents to appear and testify is appropriately held against the Respondents. Particularly in this case where the Respondents submitted self-serving affidavits in lieu of testifying and those affidavits clearly stated that Respondents would not appear at any hearing (Farrell v Morrissey, 32 AD3d 1362 [4th Dept. 2006], Walsh v. Abramowitz, 78 AD3d 852 [2nd Dept. 2010]).
Based upon the foregoing, it is hereby
ORDERED that the Petition is granted; and it is further
ORDERED, ADJUDGED, AND DECREED that Ted Barnett, Christine Brown, Curran Brown, Evelyn Chaffer, Emma Ferrante, Anna Fiorucci, Erik Gysel, Lori Gysel, Polly Hanna, Bruce Hellman, Linda Hellman, Yong Bom Kim-fredell, Patricia Kraus, Robert Kraus, Camille Lavecchia, Brendan Raymond, Eric Smutz, Leslie Smutz, Kyle Tracy, Ryan Travers and James Chaize are not in sympathy with the Conservative Party, and it is further
ORDERED ADJUDGED AND DECREED that Respondents Monroe County Board of Elections and the New York State Board of Elections are hereby directed to disenroll Ted Barnett, Christine Brown, Curran Brown, Evelyn Chaffer, Emma Ferrante, Anna Fiorucci, Erik Gysel, Lori Gysel, Polly Hanna, Bruce Hellman, Linda Hellman, Yong Bom Kim-fredell, Patricia Kraus, Robert Kraus, Camille Lavecchia, Brendan Raymond, Eric Smutz, Leslie Smutz, Kyle Tracy, Ryan Travers and James Chaize from the Conservative Party. Dated: June 9, 2021
/s/_________
The Honorable Daniel J. Doyle, J.S.C.