Opinion
Index No.: 2013-5019 RJI No.: 33-13-3714
2013-09-25
In the Matter of the Application of MELINDA SHIMER, as Chair of the Town of Lysander Democratic Committee, KEVIN A. RODE, FRANCIS J. O'DONNELL, MICHAEL ROCKDASHILL and GERALD PARSONS, as Candidates for the Town of Lysander Offices of Town Clerk, Town Councilor, Town Councilor and Highway Superintendent, Petitioners, For a Judgment under Article 78 of the CPLR v. THE ONONDAGA COUNTY BOARD OF ELECTIONS by and through HELEN KIGGINS WALSH, as one of the Commissioners of the Onondaga County Board of Elections, and DUSTIN M. CZARNY, as one of the Commissioners of the Onondaga County Board of Elections, Respondents.
APPEARANCES: TOM BUCKEL, JR., ESQ., OF HANCOCK & ESTABROOK, LLP For Petitioners JOANNA GOZZI, ESQ., OF COUNSEL TO GORDON J. CUFFY, ONONDAGA COUNTY ATTORNEY For Respondents
At a Motion Term of the Supreme Court of the State of New York, held in and for the County of Onondaga on September 24, 2013. PRESENT: HON.
Supreme Court Justice
DECISION AND ORDER
ON PETITION
APPEARANCES:
TOM BUCKEL, JR., ESQ., OF HANCOCK & ESTABROOK, LLP
For Petitioners
JOANNA GOZZI, ESQ., OF COUNSEL TO GORDON J. CUFFY,
ONONDAGA COUNTY ATTORNEY
For Respondents
This special proceeding was commenced by the petitioners pursuant to an Order to Show Cause signed on September 20, 2013. The verified petition seeks relief pursuant to Article 16 of the Election Law, CPLR Article 78 and CPLR §3001 challenging the determination of the respondent Onondaga County Board of Elections and its Commissioners that the Democratic Certificate of Nomination for the Town of Lysander is invalid. This Court has jurisdiction to "summarily determine any question of law or fact arising as to any subject set forth" in Article 16 of the Election Law. See, Election Law §16-100. Pursuant to Election Law §16-102, "[t]he nomination or designation of any candidate for any public office or party position...or the election of any person to any party position may be contested in a proceeding instituted in Supreme Court by any aggrieved candidate or by the chairman of any party committee or by a person who shall have filed objections..." Election Law §16-102(1).
Petitioner Shimer is the Chair of the Town of Lysander Democratic Committee and the remaining petitioners are aggrieved candidates for certain Town offices. The petitioners seek an order directing the respondents to certify the ballot for general election as stated on the Democratic Certificate of Nomination for the Town of Lysander filed on September 10, 2013. On that date the respondents determined that the subject certificate of nomination was invalid in that a caucus notice was not posted within the Onondaga County Board of Elections at least ten days proceeding the day of caucus, as required by Election Law §6-108(3). The statute provides as follows:
A notice of any party caucus held for making party nominations of candidates for town offices shall be given by proper party authorities by posting such notice in the public areas at the offices of the Town Clerk and the Board of Elections and filing a copy of such notice with such clerk and such board at least ten days proceeding the day of the caucus, and either by newspaper publication thereof once within the town at least one week and not more than two weeks proceeding the caucus or by posting in ten public places in the town at least ten days proceeding the day of the caucus. The notice shall specify the time and place or places and the purpose of the caucus...
Election Law §6-108(3).
The petition alleges that the Town of Lysander Democratic Committee acting through Tina Winkler, then the Town Democratic Committee Chairperson, issued a Notice of Caucus for making party nominations candidates for the Town offices at a meeting to be held on August 28, 2013. Winkler forwarded a Notice of Caucus to various members of the Town Democratic Committee and individual residents/voters in the Town who were interested in seeking nominations and directed certain individuals to post the notices in the Town Clerk's Office and ten other public locations in the Town as required by Election Law §6-108. According to the petition, on August 16, 2013 at 4:30 p.m. John Salisbury, as a resident of the Town and registered Democrat, acting along with petitioner O'Donnell, posted the Notice of Caucus in the offices of the Town Clerk and filed a copy of the Notice with the Lysander Town Clerk as required by the statute. It is further alleged that on August 15th and 16th the Notice of Caucus was posted in ten public locations.
Attached to the petitioner's submissions is a copy of an email, dated August 2, 2013, from Winkler to John Salisbury, Lysander Democratic Party authority, and others which indicated "[a]ttached is a Lysander Caucus Notice. I dated it for August 12th so you wouldn't have to post it until the very last moment. I will be in Belize and appreciate your help in posting these in the Town Clerk's Office and ten other places in town. I will forward to KK at BOE." The petition indicates that "KK" refers to Board of Elections employee Kathleen Kimball. Petitioners claim "upon information and belief", that the accepted practice undertaken by the Town Democratic Committee in posting prior caucus notices with the Board of Elections was to forward a notice by email to Kathleen Kimball and that the Board of Elections has a practice of accepting Notices of Caucus by email for both posting and filing. According to petitioners, instead of sending the e-mail with the attached Notice to the Board at that time, Winkler waited four days until August 16, 2013, until she was out of the country on vacation and that she used a computer maintained by the Captain Morgan's Retreat in Belize. However, a copy of the email is not provided with the petition. Winkler states that she sent the email from an email account of the hotel through a Microsoft Outlook email program that was available for use by guests in the hotel. Although she claims that she could not access her own email account at that time, she alleges that she had access to the Notice of Caucus which she attached thereto.
The petition alleges that by making the determination that the Notice of Caucus was not posted with the Board of Elections at least ten days preceding the day of caucus, the Board failed to account for the emailing of the Notice of Caucus by Winkler and failed to credit its prior practice of accepting such notice from the Town by email as both posting and filing with the Board. The petition seeks to have this Court declare that the Certificate of Nomination was valid and directs the Board of Elections to certify the ballot for the general election in accordance with the Certificate of Nomination.
The respondents have interposed a verified answer, a joint affidavit from both Kiggins Walsh and Czarny, as well as an affidavit from Kathleen Kimball, the Board of Elections employee, all of whom indicate that a Notice of Caucus was not received by Kimball herself at her work email address or any other representative of the Onondaga County Board of Elections, and note that petitioners fail to provide any documentation in support of the claim that such notice was in fact sent. Neither party requested that this Court hold an evidentiary hearing either in their submissions or at oral argument. Both agreed that the submissions before the Court were sufficient to allow it to render a determination on this matter.
The petitioners argued both in their papers and at oral argument that this Court's jurisdiction to summarily determine any question of fact or law is to be construed liberally. See, Election Law §16-100. The statute, however, refers to Article 16 of the Election Law and in this case, specifically section 16-102, which vests this Court with jurisdiction to hear this proceeding. See, Election Law §16-102. However, the law is clear and well settled that the provisions of Election Law §6-108, which are-at issue here and contained in a different article of the Election Law, are strictly construed. The provisions of that section are mandatory and the lack of compliance with the requirements of the statute renders the caucus and consequently the Certificate of Nomination invalid. See, Freed v. Hill, 176 AD2d 1065 (3rd Dept. 1991); see also, Gage v. Hammond, 309 AD2d 1061 (3rd Dept. 2003); see also, Chevere v. Sunderland, 303 AD2d 428 (2d Dept. 2003); see also, Matter of Scanlon v. Turco, 264 AD2d 863 (3rd Dept. 1999); see also, Matter of Beckley v. Kinley, 176 AD2d 1062 (3rd Dept. 1991); see also, Matter of Densmore v. Westall, 280 AD 939 (2d Dept. 1952). The law is consistent in this area whether it is a failure to comply with the publication requirements of the statute (see, Freed, supra, where the court determined that a delay of only one day of the publication requirement rendered the caucus and purported nominations invalid), the requirement for the description of the location where the caucus will be held (see, Beckley, supra) or as in this case, a posting or filing of the Notice of Caucus with the County Board of Elections. See, Gage, supra.; see also, Chevere, supra. This Court therefore is required to strictly construe the statutory requirements here. The respondent Board has established through the joint affidavit of both the Republican and Democratic Commissioners as well as the Kimball affidavit that the Notice of Caucus was not received by the Board. Even assuming that the facts contained in Winkler's affidavit are true, there is no dispute that the Notice was not received and not timely posted and filed in compliance with the statute. The petitioners are attempting to impose an obligation upon the Board that does not exist in the law and the decision to satisfy the statutory requirement by sending an e-mail with the Notice was made at petitioners' own peril. Based upon the specific facts of this case, petitioners have failed to establish their compliance with the statute and therefore failed to establish that the respondents made an improper determination. The burden is on the petitioners in this Election Law proceeding to establish that the respondents made an improper determination. See, Henry v. Mahoney, 105 AD2d 1159 (4th Dept. 1984); see also, Goldstein v. Carlsen, 59 AD2d 642 (4th Dept. 1977). The petitioners also argue that the respondents' alleged improper determination will deny the Town of Lysander voters choice in selecting their elected representatives in that there will be no Democratic Party candidates on the ballot if the Board of Elections determination is not overturned. This Court, however, has no equity powers in Election Law matters. Nor does it have any inherent power to extend judicial review of Election Law matters beyond that provided in statute. See, Narel v. Kerr, 22 AD2d 979 (3rd Dept. 1964); see also, Halldow v. Wykle, 68 Misc.2d 155 (1971); see also, Kranis v. Monserrat, 63 Misc.2d 119 (1970). As such, the petitioners are not entitled to the relief sought in the petition pursuant to Election Law §16-102.
Likewise, with respect to the petitioners' request for Article 78 relief, this Court's review of the respondent Board's determination is limited to whether the action is arbitrary and capricious or lacks a rational basis. See, Ward v. Mohr, 109 AD3d 694 (4th Dept. 2013); see also, Greenthumb Lawn Care, Inc. v. Iwanowicz, 107 AD3d 1402 (4th Dept. 2013). The petitioners have failed to make a showing that the respondents lacked a rational basis for the determination of lack of compliance with the statute since they have offered no proof that the Notice of Caucus was properly posted with the Board of Elections. The statute places the burden of posting and filing on the "proper party authorities" and not upon the Board of Elections. By the two election commissioners jointly concurring that no posting or filing occurred, the Board had a rational basis for its determination. Consequently, the petitioners have failed to establish their entitlement to declaratory relief that the respondents' determination was improper. See, CPLR §3001.
NOW, therefore, for the foregoing reasons, it is
ORDERED, the relief sought in the petition is denied in its entirety.
ENTER Dated: September 25, 2013
Syracuse, New York
DONALD A. GREENWOOD
Supreme Court Justice
Papers Considered: 1. Order to Show Cause, dated September 20, 2013; 2. Verified Petition, dated September 20, 2013, and attached exhibits; 3. Affidavit of Tina Winkler, dated September 20, 2013, and attached exhibits; 4. Verified Answer to Petition, dated September 23, 2013; 5. Affidavit of Kathleen Kimball, dated September 23, 2013; 6. Affidavit of Helen Kiggins Walsh and Dustin M. Czarny, dated September 23, 2013; and 7. Reply Affidavit of Thomas C. Buckel, dated September 23, 2013, and attached exhibit.