Opinion
Index No. 908095-23
09-11-2023
In the Matter of the Application of Donald F. MINICHINO, Theresa A. Sheehan, Linda J. Cebrian, and Marie Minichino, Petitioners, v. Hugh FOX, Jr. & Evelyn Kahlow, Presiding Officer and Secretary of the 9th Judicial District Convention of the Conservative Party, and Francesca Connolly, Larry J. Schwartz, Rolf M. Thorson & Charley Wood candidates, and John A. Sarcone, III, Karen Ostberg, Susan M. Sullivan-Bisceglia, & John Ciampoli, candidates, and the Board of Elections of the State of New York, and the commissioners thereof, constituting the board, Respondents.
DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian, Esq.) for Petitioners Daniel Szalkiewicz & Associates, New York (Daniel S. Szalkiewicz, Esq.) for Respondents Hugh Fox Jr. and Evelyn Kahlow Law Office of Jeffrey W. Gasbarro, Ossining (Jeffrey W.H. Gasbarro, Esq.) for Respondents Francesca Connolly, Larry J. Schwartz, Rolf M. Thorson, and Charley Wood John A. Sarcone III, Esq., Respondent, pro se Karen Ostberg, Esq., Respondent, pro se Susan M. Sullivan-Bisceglia, Esq., Respondent, pro se John Joseph N. Ciampoli, Esq., Respondent, pro se Counsel to the New York State Board of Elections, Albany (Kevin G. Murphy, Deputy Counsel) for Respondent the New York State Board of Elections
DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian, Esq.) for Petitioners
Daniel Szalkiewicz & Associates, New York (Daniel S. Szalkiewicz, Esq.) for Respondents Hugh Fox Jr. and Evelyn Kahlow
Law Office of Jeffrey W. Gasbarro, Ossining (Jeffrey W.H. Gasbarro, Esq.) for Respondents Francesca Connolly, Larry J. Schwartz, Rolf M. Thorson, and Charley Wood
John A. Sarcone III, Esq., Respondent, pro se
Karen Ostberg, Esq., Respondent, pro se
Susan M. Sullivan-Bisceglia, Esq., Respondent, pro se
John Joseph N. Ciampoli, Esq., Respondent, pro se
Counsel to the New York State Board of Elections, Albany (Kevin G. Murphy, Deputy Counsel) for Respondent the New York State Board of Elections
Thomas Marcelle, J.
On August 13, 2023, delegates of the Conservative Party assembled for a judicial convention for the Ninth Judicial District ("convention"). Four slots for Supreme Court Justice were available. However, eight candidates contested the party's endorsement. The convention was not only contested; it was contentious. And what exactly happened at the convention is a matter of some dispute. Therefore, the court held a trial and finds the relevant facts, based upon the credible evidence and the fair inferences made therefrom, as follows:
It is important to note that the court paid careful attention to the witnesses’ facial expressions, the rising and falling volume of his voice along with its tone and timbre. These non-verbal cues were significant to the court's factual inferences and conclusions. In particular, the court finds the testimony of Evelyn Kahlow to be incredible and unreliable. Ms. Kahlow was unable to provide straightforward answers to the most basic questions; she evaded the inquiries of opposing counsel, offered contradictory testimony, and routinely provided unresponsive answers. Therefore, the court disregards her testimony. The comprehensible portion of her testimony were scripted lines that had been spoon fed to her and then regurgitated on the stand. The court credits none of it—her testimony was not from a recollection of events.
The convenor gaveled the convention to order and called the roll of delegates. After certain alternates were elevated to delegate, the total number of delegates present was thirty-six. This number was sufficient to conduct the convention. No notes or records were produced of the roll call and no records were made of which alternates were elevated nor were such names reflected in the minutes of the convention.
Having established the existence of a quorum, the delegates elected Hugh Fox ("Fox") permanent chair and presiding officer and Evelyn Kahlow as permanent secretary. After that, the first scrum of the convention ensued—the question was whether candidates should be permitted to address the delegates. The vote deadlocked (18-18) twice. Petitioner Donald Minichino ("Minichino") rose to make the point that under Robert's Rules of Order (which were the rules that governed the convention), the deadlock meant that the motion was defeated. Fox ignored the procedure and unilaterally broke the deadlock by fiat and let all candidates speak.
Thereafter, Fox opened the floor to nominations for the position of Justice of the Supreme Court. Normally, candidates would be nominated for each of the four seats in turn—starting with seat one. After seat one nominations closed, the delegates would vote on the nominees and select one candidate as the party's choice for seat one. After the first seat was finalized, the convention would advance to the second seat, seeking nominations for that position and ultimately selecting a candidate for the second seat and so forth until the fourth seat was settled.
But this convention operated somewhat differently. Fox opened the floor to nominations, but not for a particular seat. Then, a delegate, upon a second, would nominate a candidate. Next, the delegates would vote on the nomination of the candidate, and if a majority of delegates casting votes support the candidate, the candidate would be considered nominated.
As best as the court can tell, a majority vote nominated the candidate for all four seats simultaneously. This is because according to Fox, the delegates could nominate more than four candidates. If the delegates did this, then procedures become murky. However, in the event that there are more than four nominees, there would be some sort of further election by the delegates, or so Fox testified. The method of this post nomination election is unclear.
In total, eight candidate names were placed before the delegation for nomination: Francesca Connolly, Larry J. Schwartz, Rolf M. Thorson, Charley Wood, John Sarcone, III, Karen Ostberg, Susan M. Sullivan-Bisceglia, and John Ciampoli. The nominations and votes were conducted in the same manner: a delegate made a nomination, the nomination was seconded, and a vote was taken on the nominee by a show of hands. Fox counted the hands and then announced the results of the vote to the convention. Fox testified that his count of the hand vote for each candidate resulted in a majority of votes for Connolly, Schwartz, Thorson, and Wood, while Sarcone, Ostberg, Sullivan-Bisceglia, and Ciampoli fell short of a majority.
This voting method left much to be desired from an accuracy standpoint. The room where the convention took place was very small, given the number of people present, and there was a lot of commotion and noise throughout the proceeding. The disorganized, mottled way the people were flung about the room made it impossible for the rank-and-file delegates to observe and ascertain the actual vote count for any of the candidates.
Moreover, the vote counting was confused. Exchanges between Fox and the delegates about whose hands were raised or not raised added to the disarray. On at least one occasion more votes were tallied then there were eligible delegates.
To ameliorate this uncertainty, delegate Phil Polizzatto requested, in front of the rest of the convention, that the votes for each nominee be taken by roll call. Fox unilaterally refused this request, stating that he did not have enough time to take a vote by roll call. The ruling of the chair went unchallenged.
Moreover, during the convention, no delegate made a proper motion objecting to the procedure to select the party's judicial candidates, the manner in which the vote was taken, the vote count, or any other procedure of the convention. Delegates did not like the outcome, but it was clear the delegates did not challenge the process employed by Fox.
Ultimately, the nominations were closed, and the convention adjourned—what happened between the closing of nominations and the adjourning of the convention is in dispute. The dispute revolves around the committee to fill vacancies. Fox claims that there was a motion, a second and a voice vote that properly established a committee to fill vacancies. The accuracy and the truthfulness of Fox's testimony is contested.
Before resolving the issue, the court needs to address its view of Fox's credibility. Fox's testimony seemed tailored, scripted, rote, and insincere—it also conflicted with his previous statements. Moreover, the testimony at trial established that Fox improperly exercised the power of the chair on multiple occasions. From this fact, the court infers Fox's motive was to reach a desired result and not to have a fair process at the convention. Fox was in the myopic pursuit of a political objective. Thus. proper procedure (and maybe the truth) was an obstacle to be overcome. Fox's testimony comes tainted with insincerity and deception and the court resolves all conflicting testimony and potential inferences against him. Back to the committee to fill vacancies—here is the court's estimation of what transpired at the end of the convention. According to all, after the last candidate was nominated, hard feelings metastasized and general tumult engulfed the convention. In all the excitement to mint his victory and end the convention without a full-blown incident, Fox rushed to adjourn the convention. Indeed, every witness, other than Fox, testified that there was no discussion of a committee on vacancies, let alone a motion made to appoint such a committee.
The court will note that Fox, in an effort to sway the court, submitted the affidavit of Samuel Milshtein. Milshtein swore that he was present at the convention and swore he was a duly elected alternate delegate—not true.
The most revealing episode on this issue was recounted by delegate Michael Grady. After the convention ended, Fox approached delegate John Delessio, in the presence of Grady, and asked Delessio if he would be willing to serve on a committee to fill vacancies—an odd request if Delessio had already been appointed. The court finds that the convention never voted on a committee to fill vacancies. Rather, Fox took it upon himself, post-convention, to insert into the minutes and the certificate of nomination a fabrication that the convention properly created a committee to fill vacancies.
On August 24, petitioners commenced this proceeding to challenge the voting method that occurred, the certificate of nomination and the minutes of the convention. All parties were served in accordance with the Order on August 25. Chief among petitioners’ complaints was the lack of roll call voting.
Petitioners argued, inter alia, that a roll vote was required by Election Law § 6-126. The purpose of such a vote is that in the event of a questionable outcome at a convention (which is the case here), a roll call can be produced to ensure both the accuracy (the count) and reliability (qualified delegates voted) of the vote. The convention's voting procedure, it was thus asserted, defeated the purpose of a roll call vote and abrogated the Election Law in a contested and contentious judicial convention. Therefore, petitioners urged that the convention be voided.
In addition, petitioners also had numerous problems with the accuracy of the minutes. Besides the committee to fill vacancies, the minutes stated candidates were nominated by voice vote, which never happened. The minutes do not reflect the nominations of all eight candidates placed in nomination contesting four positions. Such omissions have a profound effect because if a candidate's name is not placed in the minutes, he or she lacks standing prima facie to contest the convention before the Supreme Court. The nominations of eight candidates for four positions and the fact that all 36 delegates were permitted to vote eight times were concealed from the public. Defects which petitioners claim invalidate the minutes which in turn invalidate the convention.
The mentioning of certain claims are not intended to slight other claims that were raised in the Petition. Indeed, this opinion considers all claims pleaded and all claims that conformed to the proof presented at trial (CPLR 3025 [c] ).
Respondents interpose a defense of the statute of limitations. This is a rather strong defense. Election Law § 16-102 (2), the section under which this case is brought, dictates a strict time limit. The statute provides, in pertinent part, "A proceeding with respect to convention, ... shall be instituted within ten days after the holding of such ... convention ...."
Respondents, in addition to the chair and secretary of the convention, included both the winning and the losing candidates. For the purposes of this opinion, when the court refers to the respondents it is referring to the chair and secretary of the convention and the winning candidates.
Respondents also alleged that not all parties necessary to this proceeding were made part of this action. Thus, Respondents seek dismissal on this basis. The court views this defense without merit.
Respondents’ defense hinges on the meaning of "hold a convention." There are one of two possible meanings. Petitioner argues that the filing of the convention minutes should start the statute of limitations. Respondents assert that the statute of limitations begins with the conclusion of the convention. Both positions have merit.
As always, the judiciary should construe laws to animate the intent of the legislature. The starting point for discerning that intent is the language of the statute ( Yatauro v. Mangano, 17 N.Y.3d 420, 426, 931 N.Y.S.2d 36, 955 N.E.2d 343 [2011] ). The words of the statute and what those words convey, in context, is what the statute means.
Here, Election Law § 16-102 (2) says that the action must be commenced "within ten days after the holding of such [ ] convention." "In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning" ( Smith v. United States , 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 [1993] ). The ordinary meaning of "hold" is "to assemble for and carry on the activity of" (see Merriam Webster [defining "hold" and giving the example of this meaning in context as "held a convention"]). In this context, a judicial convention is held for the purpose of selecting nominees. A convention of this type begins with the roll call and ends with a motion to adjourn. Once business is closed, the convention has been held (see Matter of Stack v. Fisher, 121 A.D.3d 1280, 995 N.Y.S.2d 266 [3d Dept. 2014] [finding that "the claim accrued when the convention occurred "] [emphasis added]; see also Matter of Foley v. Grasso, 114 A.D.2d 585, 494 N.Y.S.2d 45 [3d Dept. 1985] [finding the statute of limitations under 6-102 (2) to have run on September 30th when the convention was held September 20]). Thus, the court finds that the when the convention adjourned, the clock began to run.
Further explanation of Stack is warranted here. Respondent bases much of their argument on a single phrase from this case: "the claim accrued when the convention occurred ". Petitioner asserts that this phrase is essentially irrelevant: they do not contest that if an action is filed ten days after the convention occurred, it is timely. Interestingly, an exploration into the briefing of Stack sheds some light on the issue currently before the court. There, petitioner argued his action was timely because he filed within ten days of the actual convention, whereas the Stack respondent asserted that petitioner had to wait until the filing with the board of elections to confirm his injury. But the Stack court rejected that contention and found that the petitioner was correct. Thus, it was the events of the convention and not the filing that started the statute of limitations.
Petitioners do not seem to contest this plain meaning. Rather, they assert that when read as a whole, Section 16-102 (2) allows them to file this action 10 days after the minutes and certificates have been filed. Petitioners’ basic premise is correct: courts do not read words in a vacuum. Their interpretation of the plain text must also be guided by context. Indeed, meaning is often "confirmed by the commonsense canon of noscitur a sociis , which counsels that a word is given more precise content by the neighboring words with which it is associated" ( Freeman v. Quicken Loans, Inc. , 566 U.S. 624, 634-35, 132 S.Ct. 2034, 182 L.Ed.2d 955 [2012] [cleaned up]).
As relevant here, following the language commanding an action be commenced "within ten days after the holding of such primary or convention," the statute states "or the filing of the certificate of nomination made at such caucus or meeting of a party committee" ( Election Law § 16-102 [2] ). Petitioners assert that this "filing of the certificate of nominations" applies to conventions. In essence, petitioners read the second clause of the statute to modify the first: they can either file within 10 days of the convention occurring or 10 days after the certificate is filed. Petitioners overread this language—this language does not modify the limits for challenging conventions; rather, it lays out the procedure for challenging party meeting and caucus proceedings. Notably, the section begins by laying out four different types of proceedings: (1) primary, (2) convention, (3) meeting of a party committee, and (4) caucus ( Election Law § 16-102 [2] ). The statute then lays out two different procedures: one for conventions and primaries and another for party meetings and caucuses (Id. ). The critical language here is "or." The ten-day period for conventions and primaries begins to run upon the "holding" of these events. Conversely, the ten-day statute of limitations relating to a "meeting of a party committee" or a "caucus" begins to run upon "the filing of the certificate of nominations" (Id. ). Reading "the filing of the certificate of nominations" to apply to "conventions" would render a substantial portion of this section superfluous. Indeed, such a reading would render every word following the "or" (i.e., "filing of the certificate of nominations made at such caucus or meeting of a party committee") meaningless. But "words cannot be meaningless, else they would not have been used" ( United States v. Butler , 297 U.S. 1, 65, 56 S.Ct. 312, 80 L.Ed. 477 [1936] ). Had the legislature intended for the statute of limitations for proceedings pertaining to conventions to accrue upon the filings of certificates of nominations, it would not have separated the words "such primary or convention" from the words "such caucus or meeting of a party committee." To hold otherwise would be to obliviate the difference between these types of proceedings.
Finally, the remainder of the election law code confirms the court's interpretation of the phrase. Here, the court relies on the consistent usage canon. This canon dictates that the same words used across the statute are presumed to have the same meaning (see Scalia and Garner, Reading Law: The Interpretation of Legal Texts § 25, p 172 [West Pub. Co. 2012] [noting that the "[t]he presumption of consistent usage also applies when different sections of an act or code are at issue"]). Here, Section 6-158 (6) (d) of the Election Law further illuminates the meaning of "hold a convention." As Section 6-158 (6) (d) dictates "a certificate of party nomination made at a judicial district convention shall be filed not later than the day after the last day to hold such convention and the minutes of such convention ... shall be filed within seventy-two hours after adjournment of the convention." Clear from this provision is the distinct nature of the convention itself from the filing of the minutes and certificate of nomination. Indeed, minutes cannot be filed until and unless the convention has been held. Thus, the court finds that the 10-day statute of limitations period expired on August 23, 2023—ten days after the convention adjourned. This action was commenced on August 25.
Here, petitioners brought two types of claims: a challenge to what happened at the convention (the failure to use the proper voting method) and a challenge to what is recorded in the minutes. Beginning with what occurred at the convention itself, it is clear from the record that petitioners were aware of the problem with the voting method then and there. Thus, petitioner was on notice that this injury had occurred—and the statute of limitations began to run (see Levy v. Nassau County Bd. of Elections , 162 Misc.2d 861, 867, 618 N.Y.S.2d 510 [Sup. Ct., Nassau County 1994] [finding that where petitioner knew the closeness of a primary, he did not have to wait for the Board of Elections official decision to commence his action]).
Petitioners assert that the minutes injury is different than the conduct of the convention. They claim they could not be injured until the minutes were actually filed. The court is sympathetic to this point. Indeed, CPLR 203 provides that the statute of limitations runs from when the injury happens—unless otherwise governed by statute. But as noted, the plain language of Section 16-102 (2) controls and the filing of the minutes is baked into the ten-day period. Thus, all of petitioners’ causes of action are barred by the ten-day time limit.
Here, petitioners, find themselves two days late—although perhaps not a dollar short. Petitioners are in need of an exception. And equity may provide petitioners some relief.
Equity cannot stand trickery. And here, the filing of the minutes and the certificate were infected by chicanery. Fox knowingly filed minutes and a certificate that were materially fraudulent. The court cannot quite ignore Fox's fraud and bless his actions. If the court countenances Fox's deceptive practice, it would in essence allow Respondent Fox to truncate the statute of limitations. That is, since the fraud could not have been discovered until it was perpetrated (which was at filing), Fox shortened an already cramped timeframe.
Generally speaking, a party cannot benefit or gain an advantage from its own misdeeds (cf Hanover Fire Ins. Co. v. Morse Dry Dock & Repair Co. , 152 Misc. 111, 116, 272 N.Y.S. 792 [Sup. Ct., New York County 1934] ). Here, Fox has unclean hands. Unclean hands is an equitable doctrine. The doctrine has three prerequisites before it can be employed: (1) a party is guilty of immoral, unconscionable conduct; (2) the conduct is directly related to the subject matter in litigation; and (3) the party seeking to invoke the doctrine was injured by such conduct ( Kopsidas v. Krokos , 294 A.D.2d 406, 407, 742 N.Y.S.2d 342 [2d Dept. 2002] ).
The court has no trouble finding all three elements present here: Fox's submission of fraudulent minutes is immoral conduct; it relates to this litigation; and it reduced petitioners’ filing period, causing them injury. Therefore, since Fox presents with uncleans hands, the court will not let him interpose a defense of the statute of limitations as it relates to the convention minutes and the certificate of nomination.
Now of course, the question becomes what effect Fox's fraud has on the minutes and the certificate. In particular, should the entire minutes be rejected as defective (which would sink the entire convention), or should just the fraudulent portion of the documents (i.e., the fabrication concerning the establishment of a committee to fill vacancies) be stricken?
Before adopting a final resolution, the court needs to say this much about the convention: The internecine warfare between conservative factions cast a pall over the convention. In such circumstances, all the more reason exists for minutes to be detailed and acutely accurate. While the court is deeply troubled and disturbed by the irregularities accompanying the convention and the filing of fraudulent documents, since the committee to fill vacancies was invalidly created, the remedy should be to invalidate only that committee. Therefore, the court will strike the committee to fill vacancies and render the purported creation and establishment of such a committee void.
Moreover, since a committee to fill vacancies is not required by the Election Law (see, e.g. , Matter of Pascazi v. New York State Bd. of Elections , 207 A.D.2d 650, 616 N.Y.S.2d 107 [3d Dept. 1994] ), such invalidation should have no bearing on the validity of the nominations.
The foregoing shall constitute the Decision, Order, and Judgment of the Court.