Matter of Gerke v Taddeo

[*1] Matter of Gerke v Taddeo 2004 NY Slip Op 51353(U) Decided on October 25, 2004 Supreme Court, Albany County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2004
Supreme Court, Albany County

In the Matter of the Application of STEVEN M. GERKE, CHARLES D. SCANIO, and THOMAS A. STANDER, Objectors, Petitioners,

against

ANN MARIE TADDEO and FRANK P. GERACI, JR., Candidates, the NEW YORK STATE BOARD OF ELECTIONS, NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY, FRANK M. MACKAY, Chairperson, KATHLEEN F. MULLALY, GARY A. TEMPLE, DONALD PORTO, MONROE COUNTY BOARD OF ELECTIONS, CAYUGA COUNTY BOARD OF ELECTIONS, WAYNE COUNTY BOARD OF ELECTIONS, ONTARIO COUNTY BOARD OF ELECTIONS, SENECA COUNTY BOARD OF ELECTIONS, LIVINGSTON COUNTY BOARD OF ELECTIONS, STEUBEN COUNTY BOARD OF ELECTIONS, and YATES COUNTY BOARD OF ELECTIONS, Respondents.



6319-04



Feeney, Centi & Mackey, Esqs.

Attorneys for Petitioners

(Daniel J. Centi, Esq., of Counsel)

116 Great Oaks Boulevard

Albany, New York 12203

James D. Doyle, Esq.

Attorney for the Colons

2358 West Ridge Road

Rochester, New York 14626

Joseph A. Taddeo, Jr., Esq.

Attorney for Respondent Ann Marie Taddeo 19 West Main Street, Suite 700

Rochester, New York 14614

James E. Long, Esq.

Attorney for Respondent Frank P. Geraci, Jr.

668 Central Avenue

Albany, New York 12206

John Ciampoli, Esq.

Attorney for Respondent Donald Porto

99 Washington Avenue

Suite 702

Albany, New York 12210

Gary A. Temple

Respondent Pro Se

33 Wadsworth Street

Auburn, New York 13021

New York State Board of Elections

Attorneys for NYS Board of Elections

(Todd Valentine, Esq., of Counsel)

40 Steuben Street

Albany, New York 12207

David O'Connor, Esq.

Cayuga County Attorney

Attorney for Cayuga County Board of Elections

160 Genesee Street, 6th Floor

Auburn, New York 13021

Daniel M. Delaus, Jr.

Monroe County Attorney

Attorney for Monroe County Board of Elections

39 West Main Street, room 307

Rochester, New York 14614

David J. Morris, Esq.

Livingston County Attorney

Attorney for Livingston County Board of Elections

6 Court Street

Genesco, New York 14454 Barry D. McFadden, Esq.

Assistant County Attorney

Attorney for Ontario County Board of Elections

27 North main Street, 4th Floor

Canandaigua, New York 14424

Steven J. Getman, Esq.

Seneca County Attorney

Attorney for Seneca County Board of Elections

1 DiPronio Drive, P.O. Box 690

Waterloo, New York 13165-0690

Frederick H. Ahrens, Jr., Esq.

Steuben County Attorney

Attorney for Steuben County Board of Elections

3 East Pulteney Square

Bath, New York 14810-1578

Daniel Wyner, Esq.

Wayne County Attorney

Attorney for Wayne County Board of Elections

Wayne County Courthouse

26 Church Street

Lyons, New York 14489

Bernetta A. Bourcy, Esq.

Yates County Attorney

Attorney for Yates County Board of Elections

P.O. Box 635

Penn Yan, New York 14527

Bernard J. Malone, J.

The petition to declare null and void the certificates of nomination and the nominations made by the Judicial Nominating Convention of the Independence Party for the Seventh Judicial District, which named Ann Marie Taddeo and Frank P. Geraci, Jr. as the candidates of the Independence Party for the Office of Supreme Court Justice for the Seventh Judicial District in the general election to be held November 2, 2004, due to irregularities occurring at the Convention is granted. The oral application of Rafael and Blanca Colon made at the hearing held on October 20 to be added as petitioners in this proceeding is denied because their separate Election Law proceeding (Albany County, Index No. 6353-04) attacking this same Convention and Certificate of Nomination has been dismissed by this Court simultaneously [*2]herewith as not timely commenced.

The meeting of the Seventh Judicial District Convention of the Independence Party was convened on September 27, 2004. Three candidates were nominated for the two available positions - Thomas A. Stander, Ann Marie Taddeo and Frank P. Geraci, Jr. The minutes of the Convention disclose that sixteen delegates were seated and that two additional delegates certified by the New York State Board of Elections, Rafael and Blanca Colon, were ruled to be ineligible as delegates by the Convener of the Convention, respondent Donald Porto. Election Law section 6-124 states in pertinent part as follows: "The delegates certified to have been elected as such *** shall be conclusively entitled to their seats, rights and votes as delegates to such convention."

Accordingly, for the reasons set forth below, this Court finds that the Colons were legally required to be seated as duly elected delegates at the Convention.

Nonetheless, the sixteen seated delegates proceeded to vote upon the two available Supreme Court positions. The rules of the Independence Party provide that "all nominations at any convention shall be made by a majority of the delegates present and voting and, if the majority of the delegates present and voting shall vote not to nominate any candidate to fill a vacancy, then no candidate shall be nominated to fill that vacancy." A delegate moved that a vote be taken on the first Supreme Court vacancy separately and that motion was carried. The roll call vote for that first seat was eight votes for Ms. Taddeo, eight votes for Mr. Geraci and no votes for Mr. Stander. Since none of the candidates had received a majority vote, no nomination was made.

A motion was then made to change the method of voting to allow each eligible delegate to cast a vote for the two seats at the same time. The motion was carried and the result of that roll call vote was nine votes for Mr. Geraci, eight votes for Ms. Taddeo, and seven votes for Mr. Stander. The chairperson of the convention, respondent Gary A. Temple, testified that he concluded that again no candidate received a majority. A motion was then made to drop the candidate with the fewest votes, Mr. Stander, from consideration and on a voice vote that motion was passed. It was then determined to take a single voice vote on the two remaining candidates and the minutes of the Convention state that Mr. Geraci and Ms. Taddeo each received the unanimous vote of approval from all of the delegates. This Election Law proceeding ensued.

The petitioners contend that the Convention was illegal due both to the failure to accept the Colons as delegates and to the manner in which the voting was conducted. The Court agrees with those contentions. On the first roll call vote, none of the candidates received a vote of a majority of the delegates present and voting as required by the Election Law and the rules of the Independence Party. On the second vote, although Mr. Geraci received a majority of the votes of the seated delegates, he did not receive a majority of the votes of the delegates who would have been eligible to vote had Mr. and Mrs. Colon been included. Although this Court at a hearing held on October 20, 2004 allowed testimony by Mr. Colon that he would have voted for Mr. Geraci and Mr. Stander, the Court holds that such testimony neither constitutes his actual vote nor is legally sufficient to substitute for or constitute a legally cast vote. Furthermore, had he been seated as a convention delegate, as he should have been, he might have been persuaded not to vote for either Mr. Geraci or Mr. Stander. [*3]

Notwithstanding Mr. Geraci having received a vote of a bare majority of the seated delegates, the Chairperson testified that he wrongfully believed that Mr. Geraci did not have the required majority of votes, and, according to that October 20, 2004 hearing testimony, he was persuaded by the Convention Convener, a person more experienced in participating in judicial conventions, to go to a voice vote. The chairperson also testified that he is a contractor by profession and had not expected to be elected chairperson of the Convention. He testified that this course of action to take a voice vote was taken because it was now after 11:30 p.m. and that by law he believed that they had to select the candidates before midnight - the Convention being held on the last day allowed by the Election Law.

There were two voice votes at the end of the meeting. The first voice vote motion was to exclude Mr. Stander as a candidate in the balloting. The second voice vote motion was to approve a slate of the two remaining candidates. The Chairperson testified that two voice votes were taken on those two motions and that he could not tell how many voices spoke at once in favor of each motion, but that no voices were heard by him in opposition to the two motions.

This Court will first address the refusal to seat Rafael and Blanca Colon as delegates at the convention. The law is settled that when a "purported convention *** was not lawfully convoked *** the action of this group is without force or effect" (Kaplan v Cohen, 260 App Div 396, 398). Election Law section 6-124 provides that: "the delegates certified to have been elected as such, in the manner provided in this chapter, shall be conclusively entitled to their seats, rights and votes as delegates to such convention." Mr. and Mrs. Colon were duly elected as delegates to the Judicial Nominating Convention of the Independence Party for the Seventh Judicial District and were so certified by the State Board of Elections. As such, they were legally "entitled to their seats, rights and votes as delegates to such convention." They were denied their statutory rights, and the voters that supported them had their actions nullified, when the Convener ruled that they were not entitled to be seated as delegates. In view of the inconclusive roll call votes cast for three nominated candidates this irregularity resulted in the convention not being lawfully convened and all subsequent actions at the Convention are therefore without legal force or effect.

As to the manner of voting permitted at a judicial convention, subdivision (2) of section 6-126 of the Election Law clearly requires, in pertinent part, as follows: "Where only one candidate is placed in nomination for any office, the vote may be taken viva voce. When more than one candidate is placed in nomination for an office the roll of the delegates shall be called and each delegate when his name is called shall arise in his place and announce his choice"

Here, there was more than one candidate nominated for the office of Supreme Court Justice. There were three nominations for two vacancies. Therefore, a viva voce vote was not legally permissible. There is neither statutory authority nor a party rule allowing such a voice vote as occurred here. Furthermore, there is no legal authority to drop the candidate with the fewest votes, so this Court finds that after that illegal vote to drop the candidate receiving the least number of votes there were still three nominated candidates. Thus, there is no legal authority to conduct a voice vote on a slate of two candidates (Matter of DiRoberto v Napoli, 247 AD2d 645). Therefore, even if the convention had been lawfully [*4]convened, the method of voting that resulted in the two candidates being named in the Certificate of Nomination was illegal. Accordingly, the certificates of nomination filed on behalf of Ann Marie Taddeo and Frank B. Geraci, Jr. are hereby invalidated. The Court notes that subdivision (3) of section 16-102 of the Election Law authorizes this Court to direct the reassembling of the Convention upon its finding of irregularity. However, because the election is only eight days away, that remedy is not reasonably available (see Matter of Casey v Lomenzo, 58 Misc 2d 234 at 237).

All papers, including this decision and order, are being returned to the attorneys for respondent New York State Board of Elections, to be filed and served immediately. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

This memorandum shall constitute both the decision and the order of the Court.

IT IS SO ORDERED.

DATED: ALBANY, NEW YORK

OCTOBER 25, 2004

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BERNARD J. MALONE, JR., J.S.C.