Opinion
No. CV-24-1509
10-24-2024
Montgomery Blair Sibley, Appellant, v. Kristen Zebrowski Stavisky, as Co-Executive Director of the New York State Board of Elections and Chief Election Official, Respondent.
Montgomery Blair Sibley, Odessa, appellant pro se. Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Calendar Date: October 18, 2024
Montgomery Blair Sibley, Odessa, appellant pro se.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Ceresia, Powers and Mackey, JJ.
PER CURIAM.
Appeals (1) from an order of the Supreme Court (Christopher P. Baker, J.), entered August 20, 2024 in Schuyler County, which, among other things, dismissed the complaint for lack of jurisdiction, and (2) from an order of said court, entered August 29, 2024 in Schuyler County, which denied plaintiff's motion to vacate the prior order.
Plaintiff commenced this action for declaratory judgment against defendant, as the chief election official who oversees the placement of names of candidates on New York election ballots. Plaintiff seeks a declaration that defendant would violate her duty and oath of office and deprive him of the right to vote for a President of the United States who is a natural born citizen as required by the U.S. Constitution were she to permit Kamala Harris, the Democratic Party nominee for the office of President of the United States in the November 5, 2024 general election, to appear on the New York ballot. In support of his contention, plaintiff alleges that Harris is not a natural born citizen of the United States because her parents were not United States citizens at the time of her birth and that she is thus ineligible under the Qualifications Clause of the U.S. Constitution from appearing on the ballot as a candidate for the office of President (see U.S. Const, art II, § 1 [5]; Election Law § 6-122). Plaintiff also moved for an expedited scheduling order, seeking, among other things, to shorten the statutory time period for defendant to file an answer. Supreme Court denied plaintiff's motion and, sua sponte, dismissed the complaint for failure to comply with the procedural requirements set forth in Election Law § 16-116 for ballot access challenges. Plaintiff's subsequent motion to vacate the court's order was denied. Plaintiff appeals from both orders. We affirm.
We note that Kamala Harris is not a party to this action.
Regardless of plaintiff commencing this as an action for declaratory judgment and characterizing the issue as a federal challenge that purportedly supersedes any state law, the effect of the relief sought by plaintiff is judicial intervention in the election process to remove Harris from the ballot based upon allegations that she does not meet the substantive requirements to hold the office of President of the United States. "It is well settled that a court's jurisdiction to intervene in election matters is limited to the powers expressly conferred by statute" (Matter of Scaringe v Ackerman, 119 A.D.2d 327, 328 [3d Dept 1986] [internal quotation marks and citations omitted], affd 68 N.Y.2d 885 [1986]; accord Matter of Korman v New York State Bd. of Elections, 137 A.D.3d 1474, 1475 [3d Dept 2016], lv denied 27 N.Y.3d 903 [2016]). Consistent with our prior holdings, "the exclusive remedy for seeking to remove a candidate from the ballot is a proceeding pursuant to the Election Law" (Matter of Ferguson v Cheeseman, 138 A.D.2d 852, 853 [3d Dept 1988]; see Matter of Scaringe v Ackerman, 119 A.D.2d at 328-329). As this action is clearly an attempt by plaintiff to remove Harris from the ballot, plaintiff was required to pursue his challenge by way of a special proceeding pursuant to the Election Law, which requires commencement by verified petition or order to show cause and a directive by Supreme Court as to the manner of service (see Election Law § 16-116; Matter of Wallace v Bujanow, 176 A.D.3d 1307, 1308-1309 [3d Dept 2019]; Matter of Millar v Tolly, 252 A.D.2d 872, 873 [3d Dept 1998]). As plaintiff failed to avail himself of the applicable statutory procedures under the Election Law, Supreme Court properly determined that jurisdiction was lacking (see Matter of Wallace v Bujanow, 176 A.D.3d at 1309; Matter of Millar v Tolly, 252 A.D.2d at 873). Accordingly, the court's dismissal of the complaint will not be disturbed. Plaintiff's remaining contentions are unpersuasive and without merit.
ORDERED that the orders are affirmed, without costs.
Egan Jr., J.P., Clark, Ceresia, Powers and Mackey, JJ., concur.