Farrell v Morrissey

[*1] Farrell v Morrissey 2006 NY Slip Op 51968(U) [13 Misc 3d 1224(A)] Decided on September 1, 2006 Supreme Court, Cayuga County Corning, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2006
Supreme Court, Cayuga County

Frederick J. Farrell, Petitioner,

against

James Morrissey, JOHN J. MORRISSEY III, KATHLEEN HOLM, MICHAEL A. HOLM, MICHAEL S. HOLM, NICHOLAS HOLM, SUSAN REILLY, PATRICIA MORRISSEY, BRIAN O'HORA, ROBIN O'HORA, GREGORY FINCH, NICOLE FINCH, RENE BLATCHLEY, THOMAS SHORT, ROBERT FITZMAURICE, MARK MURRAY, MARTIN MOLL, MICHAEL SHAW, PATRICIA SHAW, ALBERT BIELOWICZ, LYNETTE BIELOWICZ, JOSEPH MUSSO, NANCY MUSSO, BRIAN MacDAVITT, KATHERINE MacDAVITT, ROBERT F. HENDERSON, MICHAEL ITALIANO, TONI ITALIANO, JEAN TARLETON, JOHN WALTERS, ANGELO ERVOLINA, CYNTHIA ERVOLINA, LINDA WABY, DAVID WABY, KATHLEEN WABY, MICHAEL WABY, and JASON WABY, , Respondents.



06-806



MR. FREDERICK J. FARRELL,

Petitioner, Pro se

5394 West Lake Road

Auburn, NY 13021

CHRISTOPHER F. GRIMALDI, ESQ.

Attorney for Respondents

111 Washington Avenue, Suite 606

Albany, NY 12210

Peter E. Corning, J.

BACKGROUND

This is a proceeding brought pursuant to Election Law Section 16-110(2) by the Chairman of the Cayuga County Independence Party ("Party") to cancel the enrollment of the respondents as members of the Party. It is alleged that the 37 respondents engaged in a concerted and organized effort to "raid" the Party and take it over; it is alleged that they are not in sympathy with the principles of the Party.

Prior to the commencement of this action, the petitioner had received a letter dated August 10, 2006 from one Peter Kotzer, a member of the Party, complaining of the respondents as Republican "party raiders who have descended upon the Independence Party in an organized effort to seize control of, and to destroy it." The letter goes on to detail the claimed lack of sympathy of the respondents for the purposes and ideals of the Party.

Upon receipt of the Kotzer letter, the petitioner appointed a sub-committee of three local Party members (Gary Temple, Chairman of the sub-committee, John Kinney and Michael Lonsky) to conduct a hearing to review the claims made and to determine whether or not the respondents were in sympathy with the principles of the Party.

On or about August 11, 2006, Mr. Temple mailed a letter to the respondents (in the case of Thomas Short, by personal service) notifying them of the complaints filed against them and advising them of the date, place and time of a hearing scheduled to consider the charges. The respondents were invited to attend the hearing. The hearings were held but none of the respondents attended. Upon considering the charges against each respondent the sub-committee concluded that they had joined the Party as part of a concerted effort at party-raiding and that none of them were in sympathy with the principles of the Party. The sub-committee did find that five other persons named in the Kotzer letter either were or might be in sympathy with the Party's principles and were not named as respondents in this action.

The petitioner adopted the sub-committee's findings and commenced this proceeding to cancel the respondents' enrollment as members of the Party.

HEARING

The Court held a hearing on this matter on September 1, 2006, at which time testimony was taken from Mr. Gary Temple, Chairman of the sub-committee referred to above. A summary of the salient points of his testimony in connection with the respondents is as follows: the respondents all enrolled during the middle to latter part of 2005; that they were almost all former members of the Republican Party; that almost all had a professional or familial relationship with one James Morrissey, the alleged organizer of the party-raid; that some had [*2]strong Republican Party ties that cast doubt upon the sincerity of their conversion to the Independence Party; that they had joined the Party not because they were in sympathy with its principles but for the purpose of becoming committeemen and seize control; that they had refused to carry petitions, most would not sign petitions or assist the candidacy of any Party members other than each other; that no respondents contested each other for committee positions within the same district; and, generally, joined the Party solely to engage in party-raiding and for no other purpose.

The respondents claim that: the County Committee is not properly constituted and therefore petitioner is not empowered to bring this proceeding and that the evidence to strip the respondents of their enrollment was insufficient and therefore unjust.

THE LAW

The Court's role in these proceedings is limited to determining whether the petitioner's determination was "just", Election Law, Section 16-110(2)), and to ensure that the County Committee Chair's decision was based on sufficient evidence and not upon inappropriate factors. Rivera v. Espada, 98 NY2d 422, 428-29 (2002). Where it is conclusively shown that a person "is not in reality in sympathy with the principles of a party he is not entitled to enroll in order to further his ulterior motives." In Matter of Mendelsohn v. Walpin, 197 Misc. 993, 1000 (Sup.Ct. Bronx Co.) aff'd 277 AD 947 (2d Dept.), aff'd 301 NY 670 (1950). "Enrollment and attempted seizure of party machinery for the purpose of advancing the fortunes of another political party will not be tolerated." Matter of Zuckman v. Donahue, 274 AD 216, 218 (3rd Dept.) aff'd 298 NY 627 (1948). The Appellate Division in Zuckman stated at p. 218 that failure to attend a hearing before the Party's county chairman leads to a presumption of lack of sympathy for the Party. That Court further held that factors to consider in determining sympathy for a party or lack thereof, are: answers to questions posed; previous party affiliation; date of enrollments in the party; and their political activities after enrollment. Id, 218.

TESTIMONY

A fair summary of the testimony of Mr. Temple is: all of the respondents failed to attend the hearing to inquire into their sympathy for the Party's principles; that most but not all of the respondents were former members of the Republican Party; that a large majority had some connection or nexus with James Morrissey; that all respondents enrolled in the Party within a relatively short period of time, with most enrolling within a week in October of 2005; that upon enrollment the respondents all petitioned to be committeemen; that respondents had no interest in the Party's operations other than seeking to be committeemen, i.e., they failed or refused to sign or circulate petitions for candidates other than for each other.

DETERMINATION

Based upon the testimony and the applicable law, I find that the Party County Chairman's determination to strip the respondents of their enrollment in the Independence Party was just. [*3]The respondents were afforded an opportunity to appear before the sub-committee but failed to do so, leading to a presumption of lack of sympathy. Likewise, none of the respondents testified at this hearing. The facts relating to their dates of enrollment, connection to James Morrissey, lack of interest in the Party's functions (other than attempting to serve as committeemen), all indicate a lack of support for the general principles of the Party and indicate an attempt at party-raiding.

The respondents' claim that the Party failed to file its rules with the State and County Boards of Election is without merit and the Court finds that the Party Secretary filed the appropriate rules with the County Board of Elections and mailed a copy to the New York State Board of Elections. Further, respondents' claim that this Court ruled on identical issues a year earlier favorably to respondents position herein (Morgan v. Heary, Index No. 05-0628, August 10, 2005) is irrelevant, as the uncontradicted testimony now demonstrates proper filing of a list of officers with the Cayuga County Board of Elections. Likewise, respondents' claim of lack of authority for petitioner to maintain this action is without merit based upon a plain reading of the statute; Section 16-110(2) of the Election Law authorizes any enrolled member of the Party to commence an action thereunder. I find no requirement under the relevant statute that the State Independence Party be made a party to these proceedings and respondents' reliance on Matter of Flores v. Kapsis, 10 AD3rd 432 (2d Dept. 2004) misplaced . All other claims of respondents are denied as without merit.

Accordingly, the relief prayed for in the petition be and the same hereby is granted and the respondents' enrollment as members of the Independence Party shall be forthwith cancelled by the Cayuga County Board of Elections.

IT IS SO ORDERED.

Dated: September 1, 2006

Auburn, New York

________________________________________

HON. PETER E. CORNING

Acting Supreme Court Justice