Wolken v Smith

[*1] Wolken v Smith 2005 NY Slip Op 51018(U) Decided on May 18, 2005 Supreme Court, Onondaga County Centra, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2005
Supreme Court, Onondaga County

Randy Wolken, ROBERT GARDINO, EDWARD McLAUGHLIN, CHRIS VAUGHN, KRISTEN ROUNDS, JOHN FEGLEY, VINCE LUMIA, AND WILLIAM HURLEY WEST, on their own behalf and on behalf of all those similarly situated, Petitioners,

against

Robert Smith, in his capacity as Chairman of the Onondaga County Republican Party, and JOANIE MAHONEY, as a candidate for the City of Syracuse Republican Committee designee for the Office of Mayor, Respondents.



05-2059



KENNETH M. MOYNIHAN, ESQ.

Attorney for Petitioners

120 E. Washington St., Suite 927

Syracuse, NY 13202

NICHOLAS J. DeMARTINO, ESQ.

COSTELLO, COONEY & FEARON, PLLC

Attorneys for Respondents

and Cross Lake Farms, Inc.

205 South Salina Street

Syracuse, NY 13202-1327

John V. Centra, J.

Petitioner Randy Wolken seeks the candidacy of the Republican Party to run for the Office of Mayor of the City of [*2]Syracuse (hereinafter "City"). The remaining Petitioners are members of the City of Syracuse Republican Committee (hereinafter "City Committee").

Pursuant to Election Law §6-132, on July 12, 2004, Timothy Stapleton filed with the Onondaga County Republican Committee (hereinafter "County Committee") a Designating Petition to become a member of the County Committee. During the period of time between October 6, 1993 and until at least April 6, 2005, Timothy Stapleton was a resident of the 119th Assembly District and the 49th Senate District. At the time that he signed his Petition, he indicated that he resided at 1119 Westcott Street, Syracuse, New York.

On April 6, 2005, Petitioner Robert Gardino, in his capacity as City Committee Chair, convened a duly noticed meeting of the City Committee for the purpose of designating a Republican Candidate for the Office of Mayor for the City of Syracuse. At the meeting of April 6, 2005, votes were cast (both in person and by absentee ballot) by the City Committee members. Prior to the meeting date, on April 1, 2005, Timothy Stapleton cast his 77 weighted votes by absentee ballot in favor of Petitioner Randy Wolken.

At the conclusion of the April 6, 2005 meeting, the votes were tallied and the majority of the weighted votes went to Wolken. On April 7, 2005, County Committee Chair Robert Smith, Respondent herein, ordered a recount of the votes. The recount confirmed that Wolken won a majority of the weighted votes. After the recount, Gardino and Smith pronounced Wolken the winner and the Committee Designee.

On April 12, 2005, Smith invalidated the 77 votes cast by Stapleton and announced Respondent Joanie Mahoney the winner by two votes. According to Petitioners, Smith stated that Stapleton had incorrectly denoted his address on his Designating Petition, and, as a consequence, Smith removed Stapleton as a Committee member and invalidated his votes.

Petitioners have brought this Article 78 Petition seeking to nullify Smith's decision. Petitioners claim that Smith failed to perform a duty enjoined on him by law, proceeded without and in excess of his jurisdictional capacity, violated lawful procedures, committed errors of law, was arbitrary and capricious [*3]and abused his discretion [FN1].

In response, Smith contends that on April 4, 2005, Mahoney, one of the two City Committee candidates, raised concerns regarding the validity of Stapleton's votes based on his residency. Smith made an attempt to verify Stapleton's residency information. On the day of the convention, Smith advised both Wolken and Mahoney that there appeared to be a problem with Stapleton's votes due to a possible false statement concerning his residency and that if the tally was within 77 votes, a decision would be made regarding the validity of Stapleton's votes. Neither candidate objected to this procedure. Accordingly, the court finds an implicit waiver of any objections to the delay, until after the ballots were counted, of the determination as to whether Stapleton's residency was correctly stated on his Designating Petition.

The tally was within 77 votes, specifically Wolken had a 75 vote lead. Accordingly, Smith explored the issue of Stapleton's eligibility to vote. Smith determined Stapleton had not lived at 1119 Westcott Street since May or June of 2004 and appeared to have no legitimate attachment to that location on the date of his Petition in July 2004. As a result of the discovery that Stapleton had made false statements on his Petition, Smith removed Stapleton from the City Committee and invalidated his votes.

"Internal issues arising within political parties are best resolved within the party organization itself and judicial involvement should only be undertaken as a last resort". Bachmann v. Coyne, 99 AD2d 742 (2d Dep't 1984). Petitioners in this case, however, have demonstrated that there are grounds for judicial intervention. Cf. Bloom v. Notaro, 67 NY2d 1048 (1986).

Rule II(A)(8) of the bylaws of the County Committee provides that: A member of the County Committee may be removed after notice and hearing upon written charges to be heard by the Executive Committee. Such removal will be effected by a majority vote of such committee. Removal shall be limited to disloyalty to the Republican Party and/or corruption in [*4]office. Disloyalty shall be deemed to include, but not limited to:

a.Refusal to carry Petitions of all designated Republican candidates

b.Support of Non-Republican opposition candidates c.Failing to perform the additional duties as [previously] described.

Petitioners contend that Stapleton's removal was improper because there was neither notice nor a hearing upon written charges prior to said removal. Further, there was no vote of the Executive Committee as required. They argue that if the removal was done pursuant to this provision, then the removal was arbitrary and capricious.

However, in their answering papers, Respondents argue that the foregoing section relating to removal of a Committee member is not exclusive. They contend that Smith relied on Rule II(B)(2)(e) which contemplates appointment and/or removal of committee members by the County Chair. They claim that the County Chair can remove members for other causes that are not enumerated in the aforementioned section.

Rule II(B)(2)(e) provides that the County Chair can appoint or remove "all officials and committee not otherwise specified by this (sic) rules, with the advice of the Executive Committee." Pursuant to this rule, removal can only be accomplished "with the advice of the Executive Committee". In this case, there is no proof that the Executive Committee was contacted for advice. Thus, in relying on Rule II(B)(2)(e) for Stapleton's removal as a Committee member but failing to seek the advice of the Executive Committee, Smith's actions were violative of lawful procedure and an abuse of discretion.

Petitioners argue that the removal was also improper on the ground that only the City Chair had the authority to disapprove the ballot of Timothy Stapleton, pursuant to the aforementioned Rules. Rule VII(B)(f) states that "in the event an absentee ballot is requested . . . , the City Chair shall be substituted for the County Chair and County Committee . . . ." However, this section is irrelevant to the facts at bar. This is not a situation in which the request for an absentee ballot is being disputed. Rather, it is a situation in which there is a dispute as to whether the absentee votes that were cast were proper due to an issue with the member's legitimacy as a member of the Committee. The rule only refers to substitution of the City Chair for the County Chair where a ruling must be made determining whether or not an absentee ballot should be allowed [*5]pursuant to the permitted reasons, i.e., "at the discretion of the Chair due to employment, illness, or other reasonable excuse". Therefore, the court has not granted the Petition on this ground.

In accordance with the above-stated decision, this court grants the Petition. Although Smith provided notice to both candidates of his concern regarding Stapleton's residency, Smith's decision to declare Stapleton's nominating petition and to remove the 77 votes was improper and invalid because it did not comport with Rule II(B)(2)(e).

As previously stated, political parties are best suited to resolve their internal issues themselves rather than resorting to court intervention. Accordingly, this court hereby returns this matter to the County Committee for Smith to determine, within fourteen days, Stapleton's eligibility after seeking the advice of the Executive Committee pursuant to Rule II(B)(2)(e).

Petitioners are to submit an Order on notice.

JOHN V. CENTRA

Supreme Court Justice

Dated: May 18, 2005

Syracuse, New York Footnotes

Footnote 1: One of the arguments that Petitioners raise is that Election Law §6-154 was violated. However, Election Law §6-154 is not relevant to the facts of this case. Respondents did not file an objection to Stapleton's petition. Rather, Smith has stated that the decision to remove Stapleton from the County Committee was based on the fact that Stapleton made false statements on his petition rather than the fact that his residency was incorrect.