Opinion
2011/4989
08-08-2011
In the Matter of the Application of, Rachael Rancourt and Barbara Zulauf, Petitioner-Objectors, and Ezio Battaglini, BARBARA ZULAUF, RACHAEL RANCOURT, MICHAEL MORAN, DONALD EMERY, JOHN GARITO, ROBERT FERRIS, GERALD HUTCHINGS, Aggrieved Candidates, v. Matthew Kennedy, PETER ZIELENSKI, JOANNE AMBROSINI, ANTHONY COVIELLO, BETH GIBSON, BILL ANSHEN, MATTHEW HANSON, MELINDA MAGILL, Respondent-Candidates, and Erik Haight AND FRAN KNAPP, COMMISSIONERS CONSTITUTING THE DUTCHESS COUNTY BOARD OF ELECTIONS, Respondents.
James Walsh, Esq. Counsel for Petitioners-Objectors Matthew D. Kennedy, Esq.
James Walsh, Esq.
Counsel for Petitioners-Objectors
Matthew D. Kennedy, Esq.
Charles D. Wood, J.
In this proceeding to invalidate petitions designating respondent-candidates as the Independence Party candidates in the primary election to be held on September 13, 2011, the petitioners-objectors correctly note that the subscribing witness statements overstate the number of signatures contained on each petition page. More specifically, the pre-printed portion of each petition page is missing signature line number six (6). The subscribing witnesses have all offered affidavits stating that they inadvertently attested to an additional signature when, in fact, each page contained one less signature than listed. It is noteworthy that the petitioner has not advanced any claim of fraud or deception due to the overstatements.
Matthew Kennedy is the nominee for Beekman Town Supervisor. Peter Zielenski is the nominee for Beekman Town Council. Joanne Ambrosini is the nominee for Beekman Town Council. Anthony Coviello is the nominee for Beekman Town Highway Superintendent. Beth Gibson is the nominee for Beekman Town Justice. Bill Ashen is the nominee for Beekman Town Justice. Matthew Hanson is the nominee for Dutchess County Legislature, District 22. Melinda Magill is the nominee for Beekman Town Clerk.
The verified petition does contain charges of fraud. However, at the appearance on August 2, 2011, the petitioners stated that they are not alleging fraud.
In order to gain ballot access, a candidate must collect signatures from five percent (5%) of the enrolled Independence Party voters within the political unit in which the office or position is to be voted for (see Election Law § 6-136 [2]; see O'Connor v Curtin, 21 AD3d 507 [2d Dep't 2005]). In this case, the respondent-candidates were required to procure 28 signatures. After applying the corrected numbers, it is uncontroverted that the respondent candidates collected 126 signatures, almost five times the number required. Petitioner-objectors, however, claim that the inaccurate attestation of the number of signatures is a gross irregularity justifying invalidation of the petitions. The respondent-candidates counter that any irregularity was entirely inadvertent, innocent and de minimis, carrying no potential for abuse or fraud. The Dutchess County Board of Elections, and its commissioners Haight and Knapp take no position on the application. Election Law § 6-132 governs the form of designating petitions. Among other things, the statute requires a subscribing witness to set forth the total number of signatures on a sheet of a designating petition. This requirement has been deemed essential to the integrity of the petition process (Matter of Jonas v Velez, 65 NY2d 954, 955 [1985]; Cronk v Ferencsik, 181 AD2d 754 [2d Dep't 1992]), since the "purposes of the requirements imposed by the Election Law include avoiding fraudulent practices, confusion, and threats to the integrity of the system " (Fromson v Lefever, 112 AD2d 1064, 1066 [2d Dep't 1985] affd sub nom. Matter of Barrett v Scaringe, 65 NY2d 946 [1985]).
The following papers were considered: Order to Show Cause, Verified Petition; Verified Answer, Affirmation in Opposition, with Exhibits A-I; Reply Memorandum of Law of Matthew D. Kennedy, Esq., Reply of James E. Walsh, Esq. This matter was originally assigned to the Hon. James V. Brands, Supreme Court of the State of New York, Dutchess County. By decision and order dated August 3, 2011, the matter was reassigned to this part.
However, "when dealing with the technical requirements of a designating petition—the intention of the Legislature obviously being the avoidance of fraud, abuse or irregularities—an error so insignificant in proportion as to be totally inconsequential should not be the basis for the elimination of the right to vie for public office" (Staber v Fidler, 110 AD2d 38, 39 [2d Dep't 1985] affd 65 NY2d 529 [1985]). While laxity may invite mischief, strict construction may also lead to injustice (Gross v Albany County Bd. of Elections, 3 NY3d 251, 265 [2004, Rosenblatt, J., dissenting]).
An overstatement in the number of signatures will not always invalidate a petition sheet. For example, in Matter of Krueger v Richards (93 AD2d 898 [2d Dep't 1983], affd 59 NY2d 680 [1983]), the Appellate Division, Second Department found that the lower court improperly invalidated all of the signatures on the sheet of a designating petition where "the subscribing witness had inadvertently attested that the sheet contained 15 signatures, when, in fact it contained only 14 signatures" (id. at 898-899). In Matter of Brown v Sachs (57 AD2d 583 [2d Dep't 1977]), the "petitioner's designating petitions were challenged because the subscribing witness on two sheets inadvertently attested that there were 15 names thereon when there were actually 14." The court went on to observe that if the "valid signatures on the said sheets were counted, petitioner would have more than 200 signatures needed for her name to be placed upon the ballot." Noting substantial compliance with the provisions of the Election Law and an absence of fraud, the court found the mistake inconsequential and validated the petition (id.). In Matter of Ramos v Lawson (298 AD2d 610 [2d Dep't 2002]), the court held that an overstatement, in the absence of gross irregularity or fraudulent practice, will not invalidate all of the signatures on a petition sheet (id. at 611; J. Goldfeder, Goldfeder's Modern Election Law, at 28 [2d ed]).
In a publication prepared by the Office of Special Counsel of the New York State Board of Elections, Matter of Krueger is erroneously cited as supporting the proposition that an overstatement by a subscribing witness will invalidate an entire petition (Carr and Collins, Election Law Update 2008, at 14 [2008]).
The petitioner-objectors contend that the repetition of the error on every page of the petition submitted lends support to their argument that the mistake is a gross irregularity. However, the simple fact that the same mistake was made on all pages of the petition tends to reinforce respondent-candidates' argument that the subscribing witnesses all made an inadvertent, honest error in relying on the numbering of the signature lines. Further, there is no allegation of fraud. In fact, in all other respects there was substantial compliance with the Election Law. The involved overstatements are not substantial by any estimate. The respondent-candidates still submitted almost five times the required signatures needed. All of these facts support this court's determination that the discrepancies are inconsequential and do not "implicate any of the underlying policy considerations" discussed earlier (Stabler v Fidler, 65 NY2d 529, 535 [1985]). As the court is loathe to end a candidacy and disenfranchise voters, the petition is dismissed.
The court's dismissal of the petition is not without deep concern for the potential for future abuse. As the law stands currently, Election Law § 6-134 (11) only addresses a subscribing witness' understatement of signatures on a petition, not overstatement. While the facts of the instant case do not in any way raise issues of fraud, the court is troubled that the legislature's failure to address the issue of overstatement offers no incentive whatsoever to attesting witnesses to actually review their petitions and get them right. If you lose credit for understating the number of signatures, but suffer no penalty for overstating the number, the logical thing to do is to always claim the maximum number of signatures that could be on the page. Counsel for the petitioners rightly warns that the door is now open for candidates to circulate petition forms that pre-print the maximum number of signatures, and they can always explain the innocence of the "error" later. These results invite fraud, confusion, sloppiness, and undermining of the integrity of our system.
All matters not herein decided are denied. This constitutes the Decision and Order of the court.
Poughkeepsie, New York
_________________________________
Hon. Charles D. Wood
Justice of the Supreme Court
To:James Walsh, Esq.
Matthew D. Kennedy, Esq.