McCarthy v Conroy

[*1] McCarthy v Conroy 2006 NY Slip Op 51834(U) [13 Misc 3d 1215(A)] Decided on September 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2006
Supreme Court, Kings County

Stephen McCarthy, et al., Petitioners,

against

Robert Conroy, et. al., Respondents.



26041/06

Joseph S. Levine, J.

Upon the foregoing papers, petitioners move, by way of an order to show cause, for an order pursuant to Election Law §16-110 (2) cancelling respondents' enrollment in the Independence Party of New York. Respondents cross-move for an order dismissing this proceeding.

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. Petitioners Stephen McCarthy and Frank Morano are enrolled members of said party in Kings and Richmond counties respectively. 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 the practice of hatred policies by members of the Independence Party. Thereafter a complaint was lodged by Michael Niebauer, an enrolled member of the Independence Party from Queens county, 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. A copy of Niebauer's complaint and a notice of a hearing to be held regarding the allegations set forth therein was mailed to the respondents. MacKay appointed Vice Chair Connolly as a hearing officer to hear and determine Niebauer's allegations. A hearing was held on June 27, 2006 in Kings County. At that hearing, although none of the respondents appeared, their attorneys presented a [*2]statement indicating that they would not be participating in the hearing because it lacked any proper legal basis.

On July 3, 2006, Connolly rendered his report which found that Niebauer's complaint had been substantiated. Petitioners then moved this court for an order directing the New York City Board of Elections to cancel respondents' enrollment and respondents moved to dismiss said action. This court, in a decision dated August 11, 2006, found "that petitioners' determination to dis-enroll respondents from membership in the New York State Independence Party was not "just" as required by Election Law §16-110 (2), as it was not rendered following compliance with the strictures of §16-110 (2) which mandates that the complaint be lodged by an enrolled member of such party in such county'".

Thereafter, on August 13, 2006 petitioner McCarthy, a Kings County resident, and Morano, a Staten Island resident, submitted complaints to McKay which mirrored Niebauer's complaint charging that respondents are not in sympathy with the principles of the Independence Party and urging the disenrollment of respondents.[FN1] Respondents were mailed a copy of the complaint and a notice of a hearing on the allegations contained therein. A hearing was held on August 21, 2006 in Kings County. Again, respondents did not appear but a statement was presented on their behalf by their attorneys. At the conclusion of the hearing, Thomas Connolly reported that the complaint had been substantiated and recommended that respondents' enrollment in the Independence Party be revoked. The instant motion and cross -motion then ensued.

Petitioner's Motion

Petitioners seek an order, pursuant to Election Law §16-110 (2), directing the New York City Board of Elections to cancel respondents' enrollment in the New York State Independence Party. 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. [*3]

Petitioners are asking this court to render an order declaring that their determination to disenroll respondents was just. 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.

Importantly it has been held that "[w]hat constitutes sympathy with or belief in the principles of any political party is something which must be liberally construed, particularly when the respective umbrellas of our major political parties are sufficiently broad to encompass members with divergent political views" (In the Matter of Rivera, 2002 NY Slip Op 50449U; Warren County Conservative Party v Girard, 78 Misc 2d 964 [1974]). In fact, in Zuckman v Donahue (274 AD 216, 218 [1948]) a case involving an attempt to purge many enrollees who it was believed were attempting to seize control of a party for ulterior motives, the court found that whether or not a particular individual is out of sympathy with the principles of a political party is an individual and not a group matter, and must be considered as such.

In the instant case, the complaint against respondents alleges that respondents have attempted to usurp control of the Independence Party and perpetuate their "cult". The complaint cites anti-Semitic statements uttered by Drs. Fulani and Newman in 1989 and 1986, respectively. In addition, various news articles are attached to the complaint that feature statements and positions attributable to Fulani and Newman. However, there is not one scintilla of evidence of a recent statement or action, or any statement or action for that matter, that could be attributed to any of the respondents that demonstrate that they are out of sympathy with the ideals of the Independence Party. Accordingly, the court finds that hearing officer Connolly's findings that the complaint had been substantiated and that respondents' enrollment in the Independence Party should be revoked was not a "just" determination. It is clear from the record presented to this court that insufficient evidence was presented to demonstrate respondents' lack of party sympathy. Moreover, it appears that the hearing office considered inappropriate factors, namely 17 and 20-year-old statements uttered by two individuals that are not even respondents in this action. Therefore, petitioners' motion seeking an order declaring that their determination to disenroll respondents was "just" is denied and respondents' cross 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:McCarthy's complaint even included Niebauer's zip code in Queens rather than McCarthy's Brooklyn zip code.