MacKay v Conroy

[*1] MacKay v Conroy 2006 NY Slip Op 51824(U) [13 Misc 3d 1214(A)] Decided on August 11, 2006 Supreme Court, Kings County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2006
Supreme Court, Kings County

Frank MacKay, State Chairman Independence Party of State of New York, Michael Niebauer and Thomas Connolly, Petitioners,

against

Robert Conroy Et. al.,, Respondents



20384/06

Joseph S. Levine, J.

petitioners move, by way of an order to show cause, for an order pursuant to Election Law §16-110 (2) cancelling the enrollment in the Independence Party of New York of the named respondents. Respondents oppose such application and [*2]have moved for an order dismissing this proceeding. In opposition to respondents' motion to dismiss, petitioners seek to disqualify respondents' attorneys.

Background and Procedural History

Petitioner Frank MacKay (MacKay) is the State Chairman and Thomas Connolly (Connolly) is the Vice Chair of the New York State Independence Party. Petitioner Michael Niebauer (Niebauer) is a member of said party. Respondents are all enrolled members of the Independence Party of the State of New York in either Kings or Richmond County.

On February 4, 2006, the State Committee of the Independence Party held a meeting at which it adopted a resolution calling for the investigation of what they deemed the practice of hatred policies by some members of the Independence Party including racism, anti-Semitism as well as disloyalty to party philosophy. Thereafter, on June 8, 2006, Niebauer filed a complaint with MacKay alleging that respondents are followers of Dr. Fred Newman and Dr. Lenora Fulani and are associated with an organization known as the New Alliance Party. In his complaint, Niebauer contended that respondents have attempted to usurp control of the Independence Party and that "their views are repugnant and denigrate various religious and ethnic groups." Niebauer pointed to various anti-Semitic statements attributed to Drs. Fulani and Newman and stated that the named respondents are not in sympathy with the principles of the Independence Party, are members of a cult, and should thus be dis-enrolled.

On or about June 10, 2006, William Bogardt, as Vice Chairman of the Independence Party, mailed each of the respondents a copy of Niebauer's complaint along with a notice of hearing to be held regarding said allegations set forth therein. MacKay appointed Vice Chair Connolly as a hearing officer to hear and determine the veracity of Niebauer's allegations. A hearing was held on June 27, 2006 in Kings County. At that hearing, although none of the respondents appeared, a representative of attorneys Harry Kresky and Gary Sinawski presented a statement (the Kresky-Sinawski statement) that declared: 1) that they were representing all of the above named respondents with the exception of Yvonne Murray, Michele Senbetrand, Faigie Grunwald and Michael Tannenbaum; and 2) that the hearing lacked any proper legal basis because it had not been commenced by any county chairman of the Independence Party. As support for this position, the statement alleged that because Mr. Niebauer, on information and belief, is a resident of Queens County, a complaint from him could be acted on only by the Chairman of the Queens County Committee, and then only regarding those enrolled in Queens County. Concluding that there was a clear lack of personal jurisdiction or other legal basis for the instant proceedings, the statement indicated that respondents did not intend to participate in the hearing other than submitting this statement. Additionally, the statement responded to the specific charges raised in Niebauer's complaint as follows:

The above persons are not members of a cult. The New Alliance Party dissolved in 1994 and has not existed since then and some of the respondents were once members of it while others never even heard of it. The above persons joined the Independence Party at [*3]various times and some are founding members of the party. Some of the people worked with Fulani and Newman for many years, some know them through the Independence Party, while others never heard of them. As for the statements referred to in Niebauer's complaint; some of the above persons agree with them; others do not agree with them; others do not agree with them but do not consider then anti-Semitic; others who are familiar with them have a variety of opinions about them; others are not familiar with them at all.

At the hearing, Niebauer and his attorney, A. Joshua Ehrlich, testified and produced evidence purportedly supporting the allegations raised in the complaint. This evidence included several newspaper and magazine articles as well as television programs, which demonstrated various anti-Semitic statements uttered by Drs. Newman and Fulani and discussed their links to the Independence Party. During the hearing, Mr. Ehrlich stated that "this small group infringes on the rights of the whole membership of the party by spewing this racism and anti-Semitism while identifying themselves as leaders of the Independence Party."

On July 3, 2006, Connolly rendered his report which found that Niebauer's complaint had been substantiated. Connolly found that the Fulani and Newman statements were racist and anti-Semitic and do great harm to the Independence Party of New York. Connolly further stated that "[b]y not participating in the hearings, it is impossible to discern which of these members, if any, are in disagreement with these statements by Drs. Fulani and Newman. Furthermore, by retaining the same lawyers and adopting the same strategy of non-participation, these members have absolutely grouped themselves together and necessarily need to be dealt with as one entity."

Petitioner's Motion

In this proceeding petitioners seek an order, pursuant to Election Law §16-110 (2), directing the New York City Board of Elections to cancel the enrollment in the New York State Independence Party of the above named respondents.

As is relevant, Election Law §16-110 (2) provides as follows:

The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon a written complaint by an enrolled member of such party in such county and after a hearing held by him or by a sub-committee appointed by him upon at least two days' notice to the voter, personally or by mail, determine that the voter is not in sympathy with the principles of such party. The Supreme Court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party at least ten days before a primary election, shall direct the enrollment of such voter to be cancelled if it appears from the proceedings before such chairman or sub-committee, and other proofs, if any, presented, that such determination is just.

By seeking the instant relief, petitioners are asking this court to render an order declaring that their determination to dis-enroll respondents was just. [*4]

The Court of Appeals in Rivera v Espada, (98 NY2d 422, 428-429 [2002]) held that

Election Law § 16-110 (2) assigns the task of determining whether a voter "is . . . in sympathy with the principles" of his or her political party to a leader of that partythe County Committee Chairand limits courts to deciding whether this determination is "just." This division of responsibility reflects a legislative choice not to involve courts in determining party "principles." Thus, the court's role is to ensure that the County Committee Chair reaches a decision on the basis of sufficient evidence and does not consider inappropriate factors.

Consistent with this policy, the court in Zuckman v Donohue, (191 Misc. 399, 407-408 [1948]) observed the following:

Political parties are voluntary associations of persons, who are in substantial accord on certain principles and policies. Through the medium of political parties, the persons who voluntarily join them, because of their common beliefs, advocate the adoption of their beliefs or principles by the general public by their votes on election day. No one is compelled to join any political party. Action in joining a political party is entirely voluntary. If one believes in the principles of a party he joins it, if he wishes to. If one does not believe in a party, obviously the correct thing is to refrain from joining it

Respondents' Motion to Dismiss

Respondents' move for an order dismissing this proceeding with prejudice on the grounds of lack of subject matter jurisdiction, lack of personal jurisdiction and for failure to state a cause of action. In opposition to respondents' motion, petitioners seek the disqualification of respondents counsel, Mr. Kresky and Mr. Sinawski. Initially the court will address the disqualification issue.

Petitioners argue that disqualification is mandated due to the fact that Kresky and Sinawski have, in the past, represented the interest of the Independence Party in various matters. Therefore, petitioners maintain that the representation of respondents in the instant action by Kresky and Sinawski violates various provisions of the Code of Professional Responsibility which prohibit an attorney from disclosing a former clients' confidence or using such confidence to the disadvantage of the former client (see Model Code of Professional Responsibility EC-4-1; EC-4-5; EC-4-6; DR-4-101). Additionally, petitioners argue that disqualification is mandated because Model Code of Professional Responsibility DR 5-108 [§1200.27] (B) is violated. The Court of Appeals in Jamaica Pub. Serv. Co. v AIU Ins. Co., (92 NY2d 631, 636 [1998])

held that

A party seeking disqualification of its adversary's lawyer pursuant to DR 5-108 (A) (1) must prove that there was an attorney-client relationship between the moving party and opposing counsel, that the matters involved in both representations are substantially related, and that the interests of the present client and former client are materially adverse. Only [*5]"where the movant satisfies all three inquiries does the irrebuttable presumption of disqualification arise" (citing Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 132, rearg denied 89 NY2d 917 [1996]).

It is well settled that "[a] party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Campolongo v Campolongo, 2 AD3d 476 [2003]; see Olmoz v Town of Fishkill, 258 AD2d 447 [1999]), and the movant bears the burden on the motion (see Tekni-Plex, Inc., 89 NY2d at 131; Solow v Grace & Co., 83 NY2d 303, 308 [1994]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445 [1987]). Here, although petitioners maintain that Kresky and Sinawski have represented the Independence Party in the past, they have failed to demonstrate that the matters involved were substantially related to the instant dis-enrollment proceeding. As such, petitioners' request for disqualification of Kresky and Sinawski as counsel for respondents is denied.

The court now turns to the substance of respondents' motion to dismiss. Respondents argue that petitioners lacked jurisdiction to commence the dis-enrollment process and that the dis-enrollment hearing lacked any proper legal basis. In this regard, respondents rely upon the plain language of Election Law §16-110 (2) which requires that a dis-enrollment proceeding be commenced by the chairman of a county committee, upon the written complaint of an enrolled member of such party in such county (emphasis added). Respondents first argue that the dis-enrollment process was not commenced by the Kings County chairman of the Independence Party as required under Election Law §16-110 (2). Moreover, respondents reason that because Mr. Niebauer is a resident of Queens County, a complaint from him could be acted upon only by the Chairman of the Queens County Committee of the Independence Party, and then regarding only those members enrolled in Queens County. Thus, respondents maintain that there was a clear lack of personal jurisdiction or other legal basis for the dis-enrollment proceeding.

In the instant case, it is undisputed that the action was commenced by MacKay, the State Chairman and not by an individual county chairperson. Petitioners maintain that this was necessary because in Kings County there is no longer any county chairman/person since the Interim County Organizations [FN1] of the Independence Party in Kings, Queens and Bronx counties were disbanded pursuant to a resolution of the State Committee adopted and ratified on February 4, 2006.[FN2] [*6]

However, petitioners fail to explain, or even address, the fact that the written complaint upon which the dis-enrollment process was initiated was lodged by Niebauer, a Queens resident, and not by an enrolled member of the Independence Party from Kings County as specifically required under Election Law §16-110 (2).

Petitioners' oppose respondents' motion to dismiss, arguing that Election Law §16-110 (2) codifies a political party's guaranteed First Amendment right to exclude persons not in sympathy with its principles and that the Constitutional right to freedom of association would prove empty if political parties could not limit membership to those in sympathy with the party's principles and point to several cases in support. The court is quite cognizant of the rights of a political party to limit its membership to those persons who share its philosophy. However, once a person is an enrolled member of a political party in New York State, the process whereby such membership is to be terminated through a dis-enrollment proceeding is codified in Election Law §16-110 (2) and must be strictly adhered to.

Based upon the foregoing, the court finds that petitioners' determination to dis-enroll respondents from membership in the New York State Independence Party was not just, as it was not rendered following compliance with the strictures of Election Law §16-110 (2) which mandates that the complaint be lodged by "an enrolled member of such party in such county." Accordingly petitioners' motion is denied and respondents' motion to dismiss is granted.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Under Independence Party rules, in those New York State counties which are unable to establish a full county committee under Article 2 of the Election Law, the duly elected state committee members who reside in the county comprise an Interim County Organization.

Footnote 2: This court, in a decision dated April 20, 2006, found that resolution disbanding the Interim County Organizations in Kings, Queens and Bronx counties was an internal legislative act of the Independence Party not subject to the court's review.