Opinion
No. 31670–09.
2009-09-18
In the Matter of the application of Edward M. WALSH, Jr., individually and as Chair of the Suffolk County Committee of the Conservative Party, Petitioners, v. Franklin R. ABRAMOWITZ, James K. Accardi and Patrick J. Ahearn, enrollees in the Conservative Party and 1497 other enrollees in the Conservative Party identified and set forth on a schedule attached hereto and made part hereof, the Suffolk County Committee of the Conservative Party of New York State, Richard Johannesen, Kenneth Auerbach, Michael A. Gajdos, John Andrew Kay, James W. Malone, James A. Saladino and Frank Tinari, as members of and constituting a sub-committee appointed pursuant to Election Law Sec. 16–110, Nick Macris, a duly enrolled voter of the Conservative Party, and Anita S. Katz and Cathy L. Richter Geier, as Commissioner of and constituting the Suffolk County Board of Elections, Respondents.
Leventhal & Sliney, LLP, Roslyn, for Petitioners. Herbert A. Smith, Jr., Esq., Huntington, for 462 Respondents/Enrollees.
Leventhal & Sliney, LLP, Roslyn, for Petitioners. Herbert A. Smith, Jr., Esq., Huntington, for 462 Respondents/Enrollees.
Louis J. Petrizzo, Esq., Babylon, for 220 Respondents/Enrollees.
Gail M. Lolis, Deputy County Atty., Hauppauge, for Board of Elections.
THOMAS F. WHELAN, J.
Upon the following papers numbered 1 to 18 read on this Election law proceeding and motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1–5; 10–11; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 12–13; Replying Affidavits and supporting papers; Other 6–7 (verified answer); 8–9 (respondents' return); 14–15 (verified answer); 16–22 (court exhibits); 17 (Petitioner's exhibits 1–688); 18 (Respondents' exhibits A–P); and after hearing counsel in support of and in opposition to these motions, it is
ORDERED that this special proceeding (# 001) pursuant to Election Law § 16–110 for a judgment directing the enrollments in the Conservative Party of the remaining 682 individual respondents be cancelled is granted; and it is further
ORDERED that the respondent Board of Elections and the Commissioners thereof are directed to immediately cancel the enrollment in the Conservative Party of the individual respondents set forth on the attached Exhibit A; and it is further
ORDERED that the respondent Board of Elections and the Commissioners thereof are permanently enjoined from opening any affidavit ballots and/or any absentee ballots cast by said respondents-enrollees at the Conservative Party Primary on September 15, 2009; and it is further
ORDERED that the motion (# 002) by the respondents for an order dismissing these proceedings was denied in part on the record and in all other respects, is herein denied.
The central issue in this special proceeding is whether an intentional and organized effort by an outside organization, in this case, the Suffolk County Police Benevolent Association, to cause massive enrollment changes of its members, their families and friends, into a political party, in this case, the Conservative Party, for an ulterior motive that has little if anything to do with the principles of the party, can be the subject of a removal proceeding under the Election Law. This Court finds that statutory scheme set forth by the State Legislature is designed to protect minor parties from just such injurious activities and grants the application of the petitioner/Chairman, Edward M. Walsh, Jr. to strike the enrollments of the remaining 682 respondents from the rolls of the Conservative Party.
Ever since 1911, with the adoption of the state's first comprehensive primary law, New York has had a closed system of primary elections, whereby only enrolled members of a political party may vote in that party's primary. Various safeguards have been adopted to protect the integrity of the electoral process and to inhibit party raiding. For instance, under the Election Law, a candidate for public office must be an enrolled member of the political party ( seeElection Law § 6–120[1], [2] ). If, a political party wishes to designate or nominate a person not enrolled as a party member, it must follow the provisions set forth in Election Law § 6–120(3), also known as the Wilson–Pakula Law. As noted by the Court of Appeals in Matter of Master v. Pohanka, 10 NY3d 620, 626, 861 N.Y.S.2d 252 (2008), the purpose of the Wilson–Pakula Law:
was to prevent the invasion or takeover of the party by outsiders. As one court recognized, the Wilson–Pakula Law was designed “to protect the integrity of political parties and to prevent the invasion into or the capture of control of political parties by persons not in sympathy with the principles of such political parties” (Matter of Werbel v. Gernstein, 191 Misc. 275, 277, 78 N.Y.S.2d 440 [Sup Ct, Kings County 1948], affd273 App.Div. 917, 78 N.Y.S.2d 926 [2d Dept 1948]; other citation omitted).
An additional protection is New York's delayed-enrollment scheme whereby a voter is required to enroll in the party of his or her choice at least 30 days before the general election in November in order to vote in the next subsequent party primary ( seeElection Law § 5–304). If a voter fails to meet this deadline, he or she cannot participate in a party primary until after the following general election. The Supreme Court of the United States, in Rosario v. Rockefeller, 410 U.S. 752, 760–1, 93 SCt 1245, 1251, 36 L.Ed.2d 1 (1973), acknowledged the purpose of the delayed-enrollment scheme as an important protect against party raiding, and agreed with the Court of Appeals that “[b]ecause of the statute, it is all but impossible for any group to engage in raiding” (458 F.2d 649, 653).
And yet, over the years, with the human propensity to seek to overcome whatever obstacles that are raised to the attainment of a desired goal, New York caselaw is peppered with instances of party raiding, particularly involving minor parties, by those not in sympathy with the principles of the party. The State Legislature provided one more protection to such party raiding, that is, Election Law § 16–110. That section allows for the cancellation of the enrollment of a member of a political party after a finding that the party enrollee is not in sympathy with party principles. Before the enrollment of a voter as a member of any political party can be stricken on the ground that he or she is not in sympathy with the principles of the party, a hearing must be held by the chairman of the county committee of the party or by a subcommittee appointed by him on notice to the voter ( seeElection Law § 16–110; see also Brennan v. Grabowski, 47 A.D.2d 653, 364 N.Y.S.2d 30 [2d Dept 1975] ).
It should be noted that Supreme Court in Rosario v. Rockefeller, 410 U.S. 752, 762, at FN10, found the statute to be too cumbersome and virtually ineffectual in the face of a large-scale raiding, since “every challenge to a would-be raider requires a full administrative and judicial inquiry; proof that the challenge voter is not in sympathy with the party's principles demands inquiry into the voter's mind; and even if the challenge is successful, it strikes from the enrollment books only one name at a time.”
Beginning in the months of September and October 2008, the Suffolk County Conservative Party, based upon media reports and filings with the Suffolk County Board of Election, believed itself to be the focus of just such a conspiracy to perpetrate a scheme of large-scale fraudulent enrollment in the party. The origins of the take-over attempt begin with the Suffolk PBA's conflict with Suffolk County Executive Steve Levy over the reassignment of the Suffolk County Police highway patrols of the Long Island Expressway and Sunrise Highway, which were given over to Deputy Sheriffs, after the State of New York refused to pay the cost of policing these Highways. The State Police do patrol the Northern and Southern State Parkways. The Suffolk County Sheriff, Vincent DeMarco, is a registered Conservative and in the eyes of the Suffolk PBA and its affiliated police unions, he was cooperating in the County Executive's downsizing of the Suffolk County Police Department. E-mails from the Suffolk PBA and postings on its web site, are replete with announcements directing the enrollment drive into the Conservative Party, with directions on how to become eligible and the deadline for registration in the party.
The e-mails, web postings, and mails to union members make it clear that the intention was to have a large-scale impact on the selection of candidates and, in particular, the Conservative Party primary for Suffolk County Sheriff. More importantly, the massive enrollments were undertaken in an effort to reverse the reassignment of the Highway Patrols. Cooperation was forthcoming from the Suffolk County Police Superior Officers Association, Suffolk County Detectives Association, and the Nassau PBA. Records from the Suffolk County Board of Elections detail the collection of numerous voter registration forms by these agencies and the delivery of hundreds of registration forms, all with change of enrollment to the Conservative Party. Batch reports from the Board of Elections disclose nearly 1,000 new enrollees that were submitted directly from police agencies. Records reveal that upon the opening of the “lock box,” that is, the sealed enrollment box of delayed enrollments, there was a ten-fold increase in Conservative Party enrollment compared to previous years. At the court hearing, the petitioner testified that his belief was confirmed; his party was “under siege” by those not in sympathy with the party but motivated solely for a special interest.
In keeping with Election Law § 16–110, a complaint letter, dated January 14, 2009, from a registered member of the Conservative Party, was filed with the Conservative Party Chairman ( see Pet. Ex.1). The Chairman, by letter dated January 27, 2009 formed a sub-committee to investigate the allegations ( see Pet. Ex. 2). By a Report, dated July 29, 2009 ( see Pet. Ex. 3), the sub-committed detailed its findings, with a recommendation that 1,500 enrollees be stricken from the rolls of the Conservative Party. The Report notes that 1,504 hearings were conducted after due notice and before a legal stenographer, at a central location, over a three month period. Only five individuals appeared at the hearings. Counsel for the Suffolk PBA, Herbert A. Smith, Jr., Esq., appeared on behalf of 305 individuals and counsel for the Suffolk Superior Officers Association, Louis J. Petrizzo, Esq., appeared on behalf of 107 individuals, by submitting objection letters to the hearings and by attempting to submit boilerplate affidavits for an undisclosed number of enrollees. These individuals, along with the 1,087 who defaulted at the hearings, refused to fill out a Questionnaire ( see Resp. Ex. C) prepared by the sub-committee as part of its investigation.
With the advent of the hearings, the Suffolk PBA web site began running notices to its members concerning the hearings and noted that it “has retained election law counsel to assist any member that wants to respond to these notices ... a lack of response may cause you to lose your rights to remain an enrolled party member” (Pet. Ex. 3 at Ex. 15). The County Chairman adopted the Report of the sub-committee and instituted this special proceeding by Order to Show Cause dated August 24, 2009 (Garguilo, JSC), seeking to cancel the enrollments of 1,500 individuals. On the return date, August 31, 2009, this Court granted their oral application, on the record, to declare the default of all the respondents who failed to appear either in person or by counsel and severed the proceeding as against the remaining respondents. Also at that time, the petitioner voluntarily discontinued as against 40 respondents and noted that there existed 39 duplications of names of respondents. The Court signed a written default order to that effect on September 9, 2009. A hearing before the Court was conducted on August 31, September 1, 3, 9, 10, 14, 15, and 16.
Before the Court begins its analysis of the claims set forth in the verified petition, there are certain guiding principles that must be kept in mind. One such principle is found in Matter of Master v. Pohanka, 10 NY3d 620, 624,supra:
Generally, courts will not interfere with the internal affairs of a political party ( see Bloom v. Notaro, 67 N.Y.2d 1048, 1049, 504 N.Y.S.2d 90, 495 N.E.2d 353 [1986] ). Indeed, the United States Supreme Court noted that a political party has “discretion in how to organize itself, conduct its affairs, and select its leaders” (Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 230, 109 SCt 1013, 103 L.Ed.2d 271 [1989] ).
Moreover, as stated in Mendelson v. Walpin, 197 Misc. 993, 995, 99 N.Y.S.2d 438 (Sup Ct, Bronx County 1950, affd277 AD 947, 98 N.Y.S.2d 1022, (2d Dept 1950), affd301 N.Y. 670 (1950), “[a]t the outset it may be well to state that a voter may not, without limitation, enroll as a member of any political party in which he chooses to enroll.” “A condition of membership in a political party is the sympathy with its principles and the purpose of fostering and effectuating them” (Werbel v. Gernstein, 191 Misc. 275, 277, 78 N.Y.S.2d 440 [Sup Ct, Kings County 1948]; affd 272 AD 917, 78 N.Y.S.2d 926 [1948] ). As stressed in nearly every case that has examined the issue over the years, “the conception or notion that a person has a right to enroll in any party which he sees fit ... is a mistaken one. There are limitations on the right to enroll which do not exist with reference to voting at a general election” (Zuckman v. Donahue, 191 Misc. 399, 79 N.Y.S.2d 169 [Sup Ct, Albany County 1948], modified274 AD 216, 80 N.Y.S.2d 698 [3d Dept 1948], affd298 N.Y. 627 [1948] ).
Finally, the Court's role in this proceeding is limited to determining whether the County Committee Chairmen's determination was “just” (Election Law § 16–110[2] ) and to ensure that said decision was based on sufficient evidence and not upon inappropriate factors ( see Rivera v. Espada, 98 N.Y.2d 422, 428–9, 748 N.Y.S.2d 343 [2002] ). As noted by the Court of Appeals, the statutory provision assigns the task of determining whether a voter “is ... in sympathy with the principles” of the party to the County Chairman. “This division of responsibility reflects a legislative choice not to involve courts in determining party principles' “ (Rivera v. Espada, 98 N.Y.2d 422, 428–9,supra ).
With those guiding principles in mind, the Court makes the following findings. A hearing according to law and party rules and regulations was conducted by the Conservative Party after due notice to respondents and a finding was made by a duly appointed sub-committee that the respondents are not in sympathy with the principles of the party and that their enrollments should be cancelled as prescribed by law. The petitioner, the County Chairman, has adopted that finding and has instituted this proceeding. The preliminary requirements of the law have been complied with. The hearings held by the Conservative Party were in accordance with the applicable provisions of the statute.
I find from a review of the record and all the evidence adduced at the hearing before the Court, that the determination of the Chairman with regard to the remaining 682 individual respondents is just and accordingly direct that the enrollments of the remaining individual respondents be canceled. Taken separately, the actions of the respondents may not appear to be sinister, but when considered with the actions of others, the endeavor in which all were engaged, and what was sought to be accomplished, leads to the inevitable conclusion that there existed a common plan and scheme to take over the Conservative Party for a separate and distinct benefit, outside the principles of the Party.
Here, the actions of the individual respondents are instructive. Each failed to appear at the administrative hearing conducted before the sub-committee. Such action leads to a presumption of lack of sympathy ( see Matter of Farrell v. Morrissey, 32 AD3d 1362, 821 N.Y.S.2d 731 [4th Dept 2006]; Matter of Zuckman v. Donahue, 274 AD 216, 218,supra, affd298 N.Y. 627 [1948];cf Warren County Conservative Party v. Girard, 78 Misc.2d 964, 359 N.Y.S.2d 93 [Sup Ct, Warren County 1974] [five first-time enrollees upon reaching age of majority] ). The Appellate Division in Zuckman offered other factors to be considered, apart from the presumption of lack of sympathy, including answers to questions posed in the questionnaire, previous party affiliation, date of enrollments in the party, and their political activities thereafter (274 AD at 218,supra ). Here, by failing to appear before the sub-committee, each refused to fill out the questionnaire ( see Resp. Ex. C) designed to elicit information as to the sympathies of the new enrollee. By failing to appear, the sub-committee was further precluded from inquiring into the “Suggested Hearing Questions” ( see Sample set forth in Pet. Ex. 416), which were designed to assist in the hearing process.
The Court finds itself in agreement with the trial court in the Zuckman case (191 Misc. at 402), which noted:
Moreover, it is a serious question as to whether or not, the parties complained of had the right to refuse to submit to the taking of an oath as to the truth of the answers to the inquires put to them in the questionnaire.
Additionally, each had some relationship to a police union, and each was represented by an attorney hired by a police union. The representation of such a large group by one attorney is an indicator that one is not in sympathy with the principles of the party. So to is the fact that a large group of enrollees have a common link, in this case, their association with the police unions. Additionally, each enrolled in the Conservative Party in a short span of time, namely, September or October of 2008, after direct solicitation from that common link.
Testimony was also offered concerning the scripted nature of the testimony of two, non-respondent, individuals who did appear before the sub-committee. Apparently, as testified to by Richard Johannesen, Esq., the Chairman of the sub-committee, they appeared with a script that was printed upon PBA letterhead. As explained by the Chairman and John Andrew Kay, Esq., one of the sub-committee members, it was anticipated that large numbers of the enrollees would show up and testify at the hearings. In light of the controlling caselaw, the failure to do so proved harmful to respondents.
The fact that objection letters were filed, or attempted to be filed, by the two attorneys provided by the police unions cannot be utilized as the basis to avoid the presumption that is clearly set forth by the above-mentioned appellate caselaw. As noted, at the 1504 hearings, Mr. Smith appeared for 305 enrollees and Mr. Petrizzo for 107 enrollees. However, in this special proceeding, while Mr. Smith now represents 462 enrollees and Mr. Petrizzo represents 220 enrollees, upon a review of the 682 separate hearing transcripts, these attorneys only represented approximately 1/3 of those enrollees at the sub-committee hearings. No attempt was made at the Court hearing to show on behalf of which enrollees objection letters or boilerplate affidavits ( see Pet. Ex. 18 for sample affidavit) were submitted.
In any event, the Court of Appeals has clearly delineated the respective roles of the County Chairman and the court. It is the responsibility of the County Chairman, under the statute, to determine whether a voter “is ... in sympathy with the principles” of the party, and such can only be accomplished, as numerous cases demonstrate, by the appearance at a hearing where appropriate questions can probe into the sympathies of the enrollee. Courts are not to become embroiled in determining party principles' “ (Rivera v. Espada, 98 N.Y.2d 422, 428–9,supra ). This is particularly so with the party at issue herein, the Conservative Party, which is a platform-driven, principles-guided political party. Here, as clearly reflected in the testimony of the seven respondents who did testify in court, a decision was made by the two attorneys hired by the police unions to not permit their respective enrollees to attend the hearings before the sub-committee. In fact, none did. It is disingenuous to now argue that the Court can hear testimony about the party sympathies of an enrollee.
As for the testimony of the seven enrollees who did appear in court, they testified in a very forthright and honest manner. Each expressed well-articulated views concerning the issues of today and should be proud of their individual achievements and their strong desire to be active participants in our democracy.
But, in actuality, their testimony supported the claim advanced by the petitioner. Each knew, by prior e-mail solicitation from the PBA, about the effort to enroll in the party. Enrollment forms were obtained, for the most part, from the PBA office or union delegate. The hearing notices were turned over to the PBA office or union delegate. Each failed to attend the hearings after discussions with counsel retained by the PBA. The Fed Ex mailings, containing the Order to Show Cause initiating this litigation, were turned over to the PBA. Evidence was also adduced that before testifying in court, a questionnaire supplied by the PBA was filled out by a couple of the witness and given to the PBA attorney. These forms detailed the witnesses testimony on issues and appeared to be a vetting of the testimony.
As noted, the County Chairman was the person to be convinced as to an enrollees sympathy with the principles of the party. With regard to the seven enrollees who appeared before the Court and sought to enter into a discussion of the political philosophy of the Conservative Party, it was anticipated that they would say that they were in sympathy with the principles as set forth in the party platform, otherwise there would be no need for taking further testimony. It is expected that one who is part of an effort to raid into a party, would say that he or she wants to stay in that party. Self-serving declarations are not enough. As explained in Werbel v. Gernstein, 191 Misc. 275, 278,supra:
Examination may not be made into the hearts and minds of people to ascertain their thoughts and sympathies. Deceit often indicates that words do not truly disclose true thoughts and sentiments. But actions often belie words. In this case, it is more the actions of the respondents rather that their words which indicate their true political sympathies.
Here, the actions of the enrollees, in fulfillment of the express desire of the police unions to enroll in a large-scale organized effort, warrants a finding by the Court that the determination of the County Chairman was just.
Moreover, aside from attorney speculation, no testimony was offered that the two-day statutory time frame for notice was violated. While one enrollee though that he had only one day notice, he originally testified that he had just returned from vacation. In any event, he immediately turned the papers over to the PBA attorney. To the contrary, Mr. Johannesen testified that this law office personnel carefully complied with the notice requirement. While annoyance or surprise was certainly expressed by the enrollees concerning the hearing notice and two, without explanation, found the notice to be threatening, each enrollee testified that the notice was turned over to the PBA attorney and that they did not attend the scheduled hearing after consultation with counsel. No evidence was offered that the hearing location was inappropriate, only argument from counsel. The hearing officers had to travel to the same location for each hearing. Aside from one request to adjourn a scheduled hearing, which was granted but never rescheduled by the counsel who requested same, there was no testimony offered that enrollees sought an adjournment of the hearings in order to attend at a more convenient time.
Additional argument by counsel for the enrollees with regard to generalized due process concerns and the lack of a fair and impartial decision-maker are without merit. As noted above, when ascertaining an enrollees sympathy with the principles of a party, there can be no one more biased that the County Chairman, particularly when investigating a claimed raid or take-over attempt of that party. Yet, the Legislature, for good reason, has entrusted that responsibility to the County Chairman. Contrary to the argument that the statute was violated by the original complainant, Nick Macris, the procedures that were followed tracked the statute. A written complaint by an enrolled voter was submitted to the County Chairman and a hearing was held by a sub-committee appointed by him, upon notice to the voter. The written complaint incorporated by reference the voters who eventually received notice. Under the circumstances of this proceeding, such was appropriate and satisfied the statutory requirements..
Argument to the effect that unions often encourage members to join the Democratic Party and thereby obtain a benefit for doing so is irrelevant and without merit. There is a difference when a major party encourages enrollment by those who are in sympathy with the principles of the party. Such is not the case here. Interestingly, there was no explanation offered during the court proceedings as to the intention of the police unions and no denial as to the charge of an attempted take-over of the party.
In that light, this Court is cognizant of the fact that the statute at issue was enacted to protect minor political parties, such as the ideologically based Conservative Party, from raids and potential takeovers by those not in sympathy with the party ( see Matter of Zuckman v. Donahue, 274 AD 216, 218,supra, affd298 N.Y. 627 [1948] ). “If the Legislature were powerless to protect party enrollments, then minority parties in particular would be subject to the fraudulent domination of persons who might wish to use them for selfish or ulterior purposes” ( In re Newkirk, 144 Misc. 765, 770, 259 NYS434 [Sup Ct, Oneida County 1931] ).
The Court is reminded of the conclusion reached in Mendelson v. Walpin, 197 Misc. at 1000,supra, which held “where, as I think it has been conclusively shown here, a man is not in reality in sympathy with the principles of a party he is not entitled to enroll in order to further his ulterior motives.”
All of the foregoing circumstances can lead to only one conclusion. That through a well organized scheme, the individual respondents were participants in an attempted take-over of the Conservative Party for a surreptitious purpose. The uniformity of the entire process was not a mere coincidence. The enrollments into the Conservative Party in such numbers at the same time is either miraculous or highly suspicious. Here, control of the Conservative Party was sought for pure personal and pecuniary gain, the reassignment of Suffolk PBA members back to the Highway Patrol. Such is simply not in keeping with the principles of the party, as expressed in detail by the County Chairman during his testimony. “To hold otherwise would be to ignore the realities and would be repugnant to common sense” ( Mendelson v. Walpin, 197 Misc. at 1000,supra ).
As a final thought, the Court finds itself in agreement with the footnote in Rosario v. Rockefeller, wherein the Supreme Court expressed its opinion that the statute “is clearly too cumbersome” in the face of large-scale raiding (410 U.S. at 762, FN10). Testimony from the County Chairman indicated a cost of $30,000 to print and serve the special proceeding to the initial 1,500 respondents and a cost of $100,000 for stenographer and transcript fees for the underlying hearings. Such costs could easily become prohibitive to a minor party. Political parties are entitled to function free from unwarranted interference and are entitled to the equal protection of the laws. The right of freedom of association can be obliterated if one has to expend such a large price to protect it. The State Legislature should consider enacting suitable remedies for such exceptional situations.
Accordingly, the Court finds that, under these circumstances, the determination of the Chairman was just. The cumulative evidence is overwhelming and the conclusion reached is inescapable. This Court cannot countenance the attempted destruction of a minor political party for ulterior gain. The application is granted against all remaining individual respondents, as set forth on the annexed Schedule “A.” The portions of the motion to dismiss (# 002) that were reserved by the Court, on the record on August 31, 2009, are denied, based upon the holdings set forth herein. In keeping with this Court's Order dated September 10, 2009, the respondent Board of Elections and the Commissioners thereof are permanently enjoined from opening any affidavit ballots and/or any absentee ballots cast by said respondents-enrollees at the Conservative Party Primary on September 15, 2009. This constitutes the short form order and judgment of the Court.