Opinion
8179-07.
Decided October 22, 2007.
THOMAS J. ABINANTI, ESQ., Attorney for Petitioners, White Plains, New York.
PAUL M. COLLINS, ESQ., Attorney for Respondents Kelleher, Kellner, Aquila and Donohue, Albany, New York.
JOHN CIAMPOLI, ESQ., Attorney for Respondents Killian, Natrella, Bellantoni and Sherwood, Albany, New York.
VINCENT J. MESSINA, JR., ESQ., Attorney for Respondents Killian, Natrella, Bellantoni and Sherwood, Central Islip, New York.
A. JOSHUA EHRLICH, ESQ., Attorney for Respondents Bellantoni and Slobod, Albany, New York.
BACKGROUND
By Order to Show Cause (Tolbert, J.) dated October 5, 2007, petitioners Francis A. Nicolai, Eleanor McDonald and James Maxwell challenge the nominations delineated in the Certificate of Nomination filed with the respondent New York State Board of Elections, which nominated respondent-candidates Rory J. Bellantoni, William Sherwood and Elaine Slobod for the public office of Supreme Court Justice for the Ninth Judicial District in the State of New York for the general election to be held on November 6, 2007. Respondents oppose this challenge.
In their responsive papers, respondents Killian, Natrella, Bellantoni and Sherwood raised a number of procedural and jurisdictional defects in the Order to Show Cause that are the subject of these proceedings. Respondents Kelleher, Kellner, Aquila, and Donohue also alleged certain procedural defects that were more fully explored and stated at the hearing on October 19, 2007. Based upon the complexity of the objections and responses by the respondents, this Court requested oral argument by the parties at a hearing on October 19, 2007, and invited the parties to make further submissions after the completion of the oral argument so that the procedural and jurisdictional issues could be addressed. This Decision and Order addresses those procedural and jurisdictional arguments raised by respondents and upon which the Court heard oral argument by both sides.
DISCUSSION A. STANDING
The Court's analysis in this case must necessarily begin with consideration of whether petitioners have standing to bring this special proceeding. Petitioner Nicolai alleges standing in this proceeding as an "aggrieved candidate" under the Election Law, as a Democratic Party candidate, and as a candidate nominated at the subject Ninth Judicial District Judicial Convention for the Conservative Party. Petitioners McDonald and Maxwell allege standing as registered members of the Conservative Party and as voting delegates at the subject Judicial Convention for the Conservative Party. Respondents contend that none of the petitioners have standing to bring the instant proceeding on the ground that the petition fails to allege sufficient facts to establish their standing.
Petitioner Nicolai
The seminal case in restricting the opportunity of an aggrieved candidate to challenge a nomination is the Matter of Wydler v. Cristenfeld ( 35 NY2d 719). In that case, the Court of Appeals held that the party authorization process adopted by the Democratic Party for the substitution of a congressional candidate was immune from challenge by the opposing Republican candidate. Specifically, the Court stated that "[the authorization] provision has as its purpose the regulation of the affairs of a political party and is intended to have as its beneficiaries, only members of that political party or one who asserts that he [or she] was entitled to the authorization thereunder. It is of no interest to others that formalities have not been followed, so long as the purpose of [the statute] is not frustrated" ( Matter of Wydler v. Cristenfeld, 35 NY2d at 720 [emphasis added]).
In the Matter of Gross v. Hoblock ( 6 AD3d 933 ), the Third Department addressed standing in the context of a challenge to a party nomination by an opponent based upon a failure to file a certificate of authorization as required by the Election Law. In that case, the court summarized its view of standing by stating:
"[T]he standing issue ultimately turns upon whether the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates, or rather, to a legislatively mandated requirement of the Election Law. . . . Thus, where the challenge is directed to the manner in or methods by which a given party . . . votes on or designates a particular candidate, a nonparty candidate will not be deemed aggrieved, as he or she has no interest in whether the formalities of that process have been followed. . . . Where, however, the challenge is to a legislatively mandated requirement of the Election Law . . ., the interests involved . . . transcend the mere regulation of the affairs of a political party . . . and standing will lie" ( Matter of Gross v. Hoblock, 6 AD3d at 935-936 [citations and internal quotations omitted]; see Matter of Stempel v. Albany County Bd. of Elections, 97 AD2d 647, 648 [3d Dep't 1983], aff'd 60 NY2d 801 [1983]; Matter of Koppell v. Garcia, 275 AD2d 587, 588 [3d Dep't 2000]; Matter of Martin v. Tutunjian, 89 AD2d 1034 [3d Dep't 1982]; Matter of Liepshutz v. Palmateer, 112 AD2d 1098, 1100 [3d Dep't 1985]; Matter of Rowles v. Orsini, 309 AD2d 1307, 1308 [4th Dep't 2003]); Matter of Breslin v. Conners, 4 Misc 3d 952, 958-959 [Sup. Ct. Albany County 2004]).
Here, petitioner Nicolai is not a member of the Conservative Party and he has not alleged that he is a member of the Conservative Party ( Matter of Wydler v. Cristenfeld, supra; see Nemoyer v. New York State Bd. of Elections, 125 Misc 2d 1054, 1055-1056 [Sup. Ct. Albany County 1984]). Furthermore, petitioner Nicolai has not alleged, either in his papers or at the hearing of this matter, that he is entitled to the nomination of the Conservative Party ( see id.; Matter of Rowles v. Orsini, supra; Matter of Stempel v. Albany County Bd. of Elections, supra; Matter of Wydler v. Cristenfeld, supra), or that there has been fraud or irregularity such that it is impossible to determine who was rightfully nominated. Moreover, there is no proof in petitioner's papers, offered at the hearing of this matter, or in the record before the Court that the nominations made at the convention did not represent the will of the Conservative Party ( see Matter of Koppell v. Garcia, supra, citing Matter of Wydler v. Cristenfeld, supra). Finally, notwithstanding petitioner's contentions to the contrary, the challenge in this proceeding is to the internal affairs and operating functions of the Conservative Party in its nomination of candidates for the public office of Supreme Court Justice in the Ninth Judicial District, and not to legislatively mandated requirements of the Election Law ( see Matter of Koppell v. Garcia, supra; Matter of Stempel v. Albany County Bd. of Elections, supra; Matter of Wydler v. Cristenfeld, supra; cf. Matter of Martin v. Tutunjian, supra Matter of Liepshutz v. Palmateer, supra).
Under these circumstances, petitioner Nicolai is not an "aggrieved candidate" under Section 16-102 of the Election Law, and lacks stacks standing to challenge the validity of the Conservative Party's Certificate of Nomination, nominating respondent-candidates Bellantoni, Sherwood and Slobod for the public office of Justice of the Supreme Court of the State of New York, Ninth Judicial District in the November 6, 2007 general election.
Petitioners McDonald and Maxwell
While petitioners McDonald and Maxwell are registered members of the Conservative Party and were voting delegates at the subject Judicial Convention for the Conservative Party, they too lack standing under Election Law § 16-102 to challenge the validity of the Conservative Party's Certificate of Nomination, nominating respondent-candidates Bellantoni, Sherwood and Slobod for the public office of Justice of the Supreme Court of the State of New York, Ninth Judicial District in the November 6, 2007 general election.
It is well-settled that the issue of standing concerns whether a party is a proper party to request the adjudication of a particular issue. When raised, it must be considered at the outset of the litigation as lack of standing is an impediment to bringing an action ( see Rudder v. Pataki, 246 AD2d 183, 185 [3d Dep't 1998]; see also Gilman v. Abagnale, 235 AD2d 989, 990 [3d Dep't 1997]). It requires a showing that the party has suffered an injury in fact, that the injury is the result of the challenged action, and that the injury is likely to be redressed by a favorable decision ( see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-181).
In the instant case, petitioners McDonald and Maxwell have failed to meet their burden. They have failed to allege any irregularity or fraud in the voting procedures undertaken by the convention, which had any adverse impact on their votes or any other votes cast. They make no claim that they were deprived of their right to vote or that the right to vote of any other person in attendance at such convention was adversely affected, and they fail to assert that their rights or any other person's rights were abridged in any way during the convention.
Additionally, petitioners McDonald and Maxwell do not assert that they made any objections or entered any protests during the convention. The record before the Court establishes that no protest or objection was made by either petitioner McDonald or petitioner Maxwell to the actions and procedures undertaken at the convention. The record does show, however, that petitioners had an opportunity to vote, that their vote was counted, and that they voted in accordance with procedures that were adopted during the meeting.
It has been held that "[w]here available objections are not pressed . . . and it appears that parties are prepared to abide by the results, subsequent resort to such objections . . . are not looked upon with favor" ( Matter of McGuinness v. DeSapio, 9 AD2d 65, 74 [1st Dep't 1959]; Matter of McDonough v. Purcell, 44 Misc 2d 23, 26 [Sup. Ct. Rensselaer County 1964]). Here, by not entering any objection or protest to the actions or procedures at the convention, petitioners McDonald and Maxwell are deemed to have waived any claimed irregularities in the nomination process ( see id.; see e.g. Matter of Aurrichio v. Natrella, 304 AD2d 660, 661 [2d Dep't 2003]). As such, they lack standing to challenge the validity of the Conservative Party's Certificate of Nomination, nominating respondent-candidates Bellantoni, Sherwood and Slobod for the public office of Justice of the Supreme Court of the State of New York, 9th Judicial District in the November 6, 2007 general election.
For these reasons, the Court grants respondents' motion to dismiss the petition.
B.NECESSARY PARTIES
Petitioners have challenged the nominations that were the result of the Ninth Judicial District Judicial Convention for the Conservative Party. This challenge is based upon the actions taken by the Conservative Party to constitute the convention, as well as the actions taken at the convention by the delegates. Petitioners have requested that this Court nullify the actions taken by the party delegates at the convention by preventing the names of the nominees for Supreme Court Justice on behalf of the Conservative Party from appearing on the ballot at the general election on November 6, 2007. The net result of the relief requested would be to prevent the Conservative Party from nominating candidates for this office.
In the Order to Show Cause, the petitioner failed to name the state Conservative Party, the Executive Committee of the state Conservative Party, the Chairman of the state Conservative Party or any of the relevant local Conservative Party committees. Since petitioner directly challenges the actions of the party in constituting the convention as well as the actions taken by the delegates at the convention, the Conservative Party and its relevant committees are directly and inequitably affected by this challenge and are necessary parties to this special proceeding ( see CPLR § 1001; Matter of Michaels v. New York State Bd. of Elections, 154 AD2d 873, 874 [3d Dep't 1989]). This failure to name parties necessary to this action renders the proceeding defective and must result in the dismissal of the petition. Thus, this Court grants respondents' motion to dismiss the petition based upon the failure of the petitioner to name necessary parties to the proceeding.
C.SERVICE OF PROCESS
Respondents have alleged that service was defective in several ways in this case, thus creating a jurisdictional defect. This Court is unpersuaded by those arguments, except in the case of respondent Natrella. The Court finds that service was effected via overnight delivery by Federal Express with regard to all other respondents, except for Natrella. The Federal Express documentation submitted by petitioner establishes that the Order to Show Cause was shipped on October 5, 2007 to all respondents, other than Natrella, and was delivered to all respondents, other than Natrella, on either October 8, 2007 or October 9, 2007. This method of service and time of delivery is in compliance with the terms of the Order to Show Cause.
With regard to respondent Natrella, the absence of an address on the certificate of nomination renders that method of service impossible to complete. While the Court will not engage in an analysis of the absurd proposals presented at the hearing in this matter regarding this issue, it is clear that the terms of service contained in the Order to Show Cause, as drafted by petitioner, were impossible to carry out. Failure of petitioner to ascertain the availability of an address on the certificate of nomination does not excuse the lack of compliance with the specific terms contained in the Order to Show Cause ( see Matter of Bruno v. Ackerson, 51 AD2d 1051 [3d Dep't 1976]). As a result, the only mode of service available to the petitioner in this case was personal service, which has not been accomplished according to the information presented by petitioner. As such, respondents' motion to dismiss this petition as to respondent Natrella is granted.
The remaining issues raised by the parties need not be addressed in light of the foregoing.
Accordingly, it is hereby
ORDERED, that respondents' motion to dismiss the petition is granted for the reasons stated herein.
This memorandum shall constitute the Decision and Order of the Court. All papers, including this Decision and Order, are being returned to the attorneys for respondents Killian, Natrella, Bellantoni and Sherwood. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
SO ORDERED.