Matter of Pohanka v Working Families Party of NY State
Annotate this CaseDecided on June 8, 2006
Supreme Court, Suffolk County
In The Matter Of The Application Of Charles J. Pohanka III and Joan Fotinatos For A Judgment Pursuant To Article 78 Of The Civil Practice Laws and Rules, Petitioners,
against
Working Families Party of New York State, the Executive Committee of the Working Families Party of New York State, Bertha Lewis, Robert Master and James Duncan as Co-Chairs of the Working Families Party of New York State, Jonathan Kest as Secretary of the Working Families Party of New York State and the New York State Board of Elections, Respondents.
2006-02925
ohn J. Leo, Esq.
Attorney For Petitioners
191 New York Avenue
Huntington NY 11743
Henry T. Berger, Esq.
Attorney For Respondents
127 West 77th Street
New York NY 10024
Jeffrey Arlen Spinner, J.
The Petitioners have commenced this proceeding pursuant to CPLR Article 78 by Order [*2]To Show Cause granted on February 9, 2006 (Pines, J.) wherein they seek an Order enjoining the enforcement of a certain by-law of the WORKING FAMILIES PARTY OF NEW YORK STATE adopted on February 4, 2006 which by-law vested the State Committee with the authority to designate candidates for town and village elections pursuant to Election Law § 6-120 despite the presence of a duly constituted County Committee. The Respondents, appearing through counsel, vigorously oppose the Petitioners' application.
The Co-Petitioner CHARLES J. POHANKA III ("POHANKA") is the Chair of the Working Families Party County Committee Of Suffolk County ("COUNTY COMMITTEE") and Co-Petitioner JOAN FOTINATOS ("FOTINATOS") is the State Committeeperson of the Working Families Party Of New York State from the Tenth Assembly District. The named individual Respondents are officers of the Respondent WORKING FAMILIES PARTY OF NEW YORK STATE ("WFP"). The Respondent THE NEW YORK STATE BOARD OF ELECTIONS has neither appeared nor answered in this matter.
According to the Verified Petition filed herein, the Petitioners assert that the Respondent JONATHAN KEST ("KEST"), acting in his capacity as Secretary of WFP, caused to be served upon all State Committee Members a Notice Of Special Meeting, the same to be convened in Albany, New York on February 4, 2006 at 4:00 p.m. The stated purpose of the Special Meeting was to consider amending the Rules of the Working Families Party, specifically Article V, Paragraph I thereof, and a draft of the proposed change was incorporated into the body of the Notice. Distilled to its essence, the amendment, if approved, would deprive the COUNTY COMMITTEE of the power to designate candidates, who are not enrolled members of the Working Families Party, for town and village offices (commonly designated as issuance of "Wilson-Pakula" certificates) and instead would vest the same in the State Committee. Petitioners aver that such action by WFP is violative of both the Election Law and recent case law. In addition to the Verified Petition, the applicant has submitted an Affidavit executed by one Candace J. Wetherell which further illuminates and illustrates the claim of the Petitioners.
In opposition, the Respondents have submitted the Affirmation of Henry T. Berger Esq. which includes a copy of the Rules as adopted on February 4, 2006 together with the Affidavits of Herbert D. Biblo and Michele Lynch. The Biblo and Lynch Affidavits assert that both affiants are County Committeepersons of WFP and, in the case of affiant Lynch, she is also a State Committeeperson of WFP. Although both Affidavits are coherent and focused, they effectively fail to address the merits of the Petition. Instead, they both set forth claims that the Petitioners are part of what could best be described as a cabal of "government employees" and "political operatives" who intend to take control of the County Committee solely to maintain their current political or municipal employment. These assertions are just that, bare and without evidentiary support.
Counsel's Affirmation in Opposition is both articulate and candid, asserting that the amendment at issue was ratified in response to the ruling in Matter of Martin v. Alverez, 21 AD3d 572, 799 NYS2d 921 (2nd Dept. 2005). In that proceeding, the Appellate Division, 2nd Dept. affirmed a thoughtful and well-reasoned opinion rendered by Hon. Thomas J. Whelan on August 10, 2005. In that decision, Mr. Justice Whelan set forth an in-depth exposition of the legislative history of Election Law § 6-120 and discussed the legislative intent behind the statute [*3](the so-called "Wilson-Pakula" law, named after the progenitors of the legislation, Senators Malcolm Wilson and Irwin Pakula). In view of Mr. Justice Whelan's exposition, this Court finds it to be unnecessary to visit the matter anew, but instead incorporates the same herein by reference.
A fair reading of counsel's Affirmation in Opposition together with the language in Mr. Justice Whelan's opinion indicates that counsel's affirmation espouses virtually identical arguments in this matter to those proffered in the Martin matter.
The County Committee of a political party is a creature of statute (Election Law § 2-104) as is the State Committee of a party (Election Law § 2-102). As such, the provisions of the Election Law are applicable to the manner in which such committees are both constituted and operated. Such committees may not act in a manner inconsistent with the governing statutes and any action taken in violation of the statute will not be accorded legal effect.
Here, the Respondents have drafted and passed an amendment to the Rules in order to deliberately and effectively deprive the Petitioners of their statutory rights as conferred upon the County Committee by Election Law § 6-120. By doing so, they have acted in a manner that is expressly proscribed by statute.
The Affidavit of Candace Wetherell, submitted by Petitioners, is most instructive in this matter. It states verbatim in Paragraph 5 thereof as follows, referencing the February 4, 2006 Special Meeting:
"I, and the rest of the attendees, were advised by Kevin Finnegan, General Counsel for the WORKING FAMILIES PARTY OF NEW YORK STATE, as follows:
The rule is to clarify the rules, so that the Executive Committee retains that power that they intended that the Executive Committee had originally. The challenge was made in Suffolk County, and it is designed and intended to clear up the confusion that may have existed in Suffolk County, and to ensure that the Wilson-Pakula authorizations in Suffolk County belong to the Executive Committee and not the County Committee, and will apply everywhere else.'" [emphasis so in original].
From a fair reading of the plain language of the foregoing it is apparent that the Respondents have promulgated the change in the rules solely to make an "end run" around the statutory scheme, thereby emasculating the County Committee by improperly wresting the Wilson-Pakula power from them. It appears to the Court that this action was taken in direct response to the Matter of Martin v. Alverez matter, supra . Under these unique circumstances, the Court finds that the promulgation and approval of the amendment at issue were ex post facto acts that must be denied legal effect. The Court is constrained to find that the amendment at issue is void ab initio.
Even affording the benefit of every inference to the Respondents, a fair reading of all of the foregoing leads this Court to the inescapable conclusion that the Petitioners are entitled, in toto, to all of the relief which they seek in this proceeding. [*4]
It is, therefore, ORDERED, ADJUDGED and DECREED that the application by the Petitioners shall be and is hereby granted in its entirety; and it is further ORDERED, ADJUDGED and DECREED that the Amendment at issue herein which was approved by the State Committee of WORKING FAMILIES PARTY OF NEW YORK STATE on February 4, 2006 and which deprived the COUNTY COMMITTEE of its authority to issue Wilson-Pakula certificates, shall be and is hereby declared to be null, void and of no force and effect nunc pro tunc as of February 4, 2006.
This shall constitute the decision, judgment and order of this Court.
DatedJune 8th, 2006
Riverhead, New York
E N T E R:
_____________________________________
JEFFREY ARLEN SPINNER, J.S.C.
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