Matter of Ruck v Greene County Bd. of Elections

[*1] Matter of Ruck v Greene County Bd. of Elections 2009 NY Slip Op 51707(U) [24 Misc 3d 1232(A)] Decided on August 6, 2009 Supreme Court, Greene County Platkin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2009
Supreme Court, Greene County

In the Matter of the Application of Patricia J. Ruck, as Citizen Objector and FOREST COTTEN, as Aggrieved Candidate, Petitioners,

against

Greene County Board of Elections, THOMAS J. BURKE, Commissioner of the Greene County Board of Elections and CAROL ENGELMANN, Acting Commissioner of the Greene County Board of Elections, together constituting the GREENE COUNTY BOARD OF ELECTIONS, and KEITH W. VALENTINE, KAREN A. DEYO, JOSEPH F. IZZO and LINDA L. OVERBAUGH, Respondents.



09-1181



Kathleen O'Keefe, Esq.

Attorney for Petitioners

65 Anthony Drive

Earlton, NY 12058

Thomas J. Spargo, Esq.

Attorney for Respondent-Candidates Keith W. Valentine, Karen A. Deyo, Joseph F. Izzo and Linda L. Overbaugh

363 Joslyn School Road

East Berne, NY 12059

Office of the Greene County Attorney

Attorneys for Greene County Board of Elections

(Carol D. Stevens, County Attorney) 411 Main Street, Suite 443

Catskill, New York 12414

Clayton Rivet, Esq.

Attorney for Respondent Thomas J. Burke

1 Lester Drive

Orangeburg, New York 10962

Richard M. Platkin, J.

Petitioners Patricia J. Ruck and Forest Cotten move for an order: (1) declaring fraudulent, invalid, null and void both the Republican Party and Conservative Party designating petitions filed with the Greene County Board of Elections ("BOE") purporting to designate Keith W. Valentine, Karen A. Deyo, Joseph F. Izzo and Linda L. Overbaugh (collectively "the respondent-candidates") as candidates in the September 15, 2009 primary election for the Greene County Legislature for the First Legislative District; (2) enjoining the BOE from certifying these designating petitions; and (3) restraining the BOE from printing and placing the names of the respondent-candidates on the ballot at the primary election. The respondent-candidates oppose the Verified Petition through an answer. Respondent Thomas J. Burke, as Democratic Commissioner of the BOE, filed an answer in support of the Verified Petition. The BOE has not filed an answer and takes no position on the application.

BACKGROUND

Linda H. Overbaugh of 5606 Cauterskill Road, Catskill, New York is an announced Republican candidate for Greene County Legislator for the First Legislative District, a four-member at-large legislative district. The Republican Party and Conservative Party nominating petitions filed with the BOE set forth the names of four candidates. One of those candidates is identified as Linda L. Overbaugh of 8 Willis Avenue, Catskill, New York, a retiree who is an enrolled member of the Republican Party but has no political aspirations. It is the apparent confusion of these two Republican women named Linda Overbaugh from Catskill, New York that lies at the heart of this unusual case.

This application was brought on by Order to Show Cause signed by this Court (Teresi, J.) on July 27, 2009. The Verified Petition was made returnable on July 31, 2009. However, prior to the return date, Commissioner Burke sought the opportunity to obtain independent counsel to represent his legal position and protect the interests of his political party. Pursuant to a revised briefing schedule agreed to by the parties, the application was made returnable on August 4, 2009. At a telephone conference held on August 4, 2009, all parties agreed that the issues raised by the Verified Petition could be decided on the basis of the parties' written submissions without the need for an evidentiary hearing. This Decision, Order & Judgment followed.

Petitioner Patricia J. Ruck alleges that she is a duly qualified and registered voter in the State of New York who is eligible to vote for the public office of Greene County Legislator for [*2]the First Legislative District ("the Office") at the primary election to be held on September 15, 2009. She claims standing to maintain this proceeding as a citizen-objector. Petitioner Forest Cotten sues as an aggrieved candidate, alleging that he has filed petitions with the BOE designating him as the Democratic Party, Independence Party and Working Families Party candidate for the Office.

Respondents Thomas J. Burke and Carol Engelmann are the Commissioners of the Greene County Board of Elections. The respondent-candidates are enrolled members of the Republican Party whose names appear on the designating petitions at issue on this application.

Petitioners allege that on or about July 14, 2009, a petition designating the respondent-candidates as Conservative Party candidates for the Office was filed with the BOE. The same day, the local Conservative Party filed a document with the BOE authorizing the candidacy of Respondent Linda L. Overbaugh ("Respondent Overbaugh") on its ballot line. On or about July 16, 2009, a petition designating the respondent-candidates as the Republican Party candidates for the Office was filed with the BOE.

Petitioner Ruck alleges that she timely filed general objections and specifications of objections to both petitions. On July 29, 2009, the BOE declined to invalidate the Republican Party petition in a determination stating as follows: "The commissioners failed to reach an agreement and therefore the petition remains valid."[FN1]

The Verified Petition raises two principal objections to the purported designations made by the Conservative Party and Republican Party petitions. First, petitioners allege that Respondent Linda L. Overbaugh's failure to file a certificate of acceptance of the Conservative Party designation precludes her from appearing on that party's ballot line. Second, petitioners contend that the Conservative Party and Republican Party designating petitions should be rejected in their entirety as fraudulent and the four candidate designations made therein declared null and void. This claim of pervasive fraud is based on petitioners' allegations that (1) Respondent Overbaugh never agreed or consented to run for the Office and (2) party members who signed the petitions were misled into believing that Respondent Overbaugh was running as part of a slate with the other three respondent-candidates.

The respondent-candidates raise several affirmative defenses, including lack of standing and the failure to join a necessary party. As to the merits, they contend that under the unusual circumstances of this case — which involve an unintentional error regarding the declared candidate's middle initial and home address resulting from the fact that two unrelated, registered Republicans named Linda Overbaugh reside in the same community — there is no basis to invalidate the designations of the other three respondent-candidates as fraudulent.

STANDING

For their first affirmative defense, the respondent-candidates claim that the general objection filed by petitioner Ruck to the Conservative Party petition is untimely.[FN2] Pursuant to [*3]Election Law § 6-154 (2), such an "objection[] shall be filed with the [BOE] within three days after the filing of the petition or certificate to which objection is made, or within three days after the last day to file such a certificate, if no such certificate is filed."

Petitioners allege that the Conservative Party petition was filed on July 14, 2009 and that petitioner Ruck's general objection was filed on July 20, 2009 (Verified Petition ¶¶ 12, 14). While the respondent-candidates correctly observe that a general objection to the contents of the petition was required to be filed on or before July 17, 2009, within three days of the petition having been filed with the BOE, the specification filed by petitioner Ruck establishes that her sole objection is directed at Respondent Overbaugh's alleged failure to file a certificate of acceptance. The last day to file a designating petition was July 16, 2009 (Election Law § 6-158 [1]), the last day to file a certificate of acceptance was July 20, 2009 (id. [2]), and the last day to object to the failure to file a certificate of acceptance was July 23, 2009 (Election Law § 6-154 [2]). Under these circumstances, the Court concludes that petitioner Ruck's general objection was timely filed on July 20, 2009.

The respondent-candidates also contend, as a second affirmative defense, that since petitioner Cotten did not seek the Conservative Party nomination, he lacks standing to sue as an aggrieved candidate.[FN3] Election Law § 16-102 (1) provides that the "designation of any candidate for any public office . . . may be contested in a proceeding instituted in the supreme court by any aggrieved candidate."

In general, persons who are not members of the political party whose designating petitions are being challenged lack standing to object to the candidacies set forth therein (Matter of Stempel v. Albany County Bd. of Elections, 60 NY2d 801, 803 [1983], aff'g 97 AD2d 647 [3d Dept]). While this rule applies "where the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates," standing has been found where the claim is directed at "a legislatively mandated requirement of the Election Law" (Matter of Breslin v. Conners, 10 AD3d 471, 473 [3d Dept 2004]). But "even where noncompliance with specific provisions of the Election Law is alleged, a nonparty candidate will not have standing to assert such violations if the intended purpose of those statutes is the regulation of the internal affairs of a political party" (Matter of Nicolai v. Kelleher, 45 AD3d 960, 962 [3d Dept 2007]).

It is apparent that Respondent Overbaugh's alleged failure to file the required certificate of acceptance of the Conservative Party designation is "not confined to the internal affairs of the [Conservative] Party or the manner or method by which it nominates its candidates" (id.). Rather, it represents a legislatively mandated requirement, non-compliance with which constitutes a fatal defect to a designation (Election Law §§ 6-146 [4] [non-filing], 1-106 [2] [untimely filing]).

As to the branch of the Verified Petition premised on Respondent Overbaugh's lack of consent to be named on the designating petitions, the respondent-candidates can plausibly [*4]maintain that these claims represent a "challenge . . . to the operating function of a political party in its designation of candidates and not to the contents of the basic instrument which the Legislature has required to be in strict conformity with requirements of law" (Stempel, 97 AD2d at 648; see also Matter of Gross v. Hoblock, 6 AD3d 933, 935 [3d Dept 2004] ["where the challenge is directed to the manner in or methods by which a given party committee votes on or designates a particular candidate, a nonparty candidate will not be deemed aggrieved, as he or she has no interest in whether the formalities of that process have been followed"]). However, allegations of fraud go well beyond a mere challenge to the formalities of the designating process utilized by political parties and implicate the broader public interest in maintaining the integrity of the electoral process (see Fischer v. Peragine, 10 AD3d 620 [2d Dept 2004]). Accordingly, the Court is satisfied that petitioner Cotten has standing to challenge the entire Conservative Party petition on the ground of fraud (see Matter of Levine v. Turco, 43 AD3d 618 [3d Dept 2007]; Matter of Colaiacovo v. Aberle, 10 AD3d 464 [3d Dept 2004]).[FN4]

NECESSARY PARTY

For their third affirmative defense, the respondent-candidates contend that Linda H. Overbaugh ("Ms. Overbaugh") is a necessary party to this proceeding and that the Court is without jurisdiction to adjudicate the Verified Petition in her absence. The respondent-candidates allege that the time to join Ms. Linda H. Overbaugh as a party to this proceeding expired on July 30, 2009, and that any adverse ruling as to the validity of the designating petitions would be prejudicial to her.

A person "who might be inequitably affected by a judgment in the action" is considered a necessary party (CPLR 1001 [a]). If a necessary party has not been joined "and is subject to the jurisdiction of the court, the court shall order h[er] summoned" (id. [b]).[FN5]

Respondents have failed to demonstrate that Ms. Linda H. Overbaugh is a person who might be affected, much less inequitably affected, by a judgment in this matter. Whatever the intentions of Ms, Overbaugh and the organizers of the petitioning effort, the fact remains that the name of Linda H. Overbaugh does not appear on the designating petitions. Nor has there been a certificate of authorization filed to allow Ms. Linda H. Overbaugh to appear on the Conservative Party ballot line. Further, her time to seek affirmative judicial relief based on any claimed right to appear on the ballot has passed. Moreover, the respondent-candidates have failed to establish how a ruling in favor of petitioners might affect Ms. Overbaugh's alleged interest in appearing on the primary ballot as a candidate for the Office.

Moreover, even if Ms. Overbaugh might be affected by a judgment adverse to the [*5]respondent-candidates, there has been no showing that she would be "inequitably affected". The language of the CPLR clearly does not require (or allow) the joinder of all persons who might feel some effect or impact from a judgment; rather, the Legislature limited participation in lawsuits to those who might be affected "inequitably." Merely because an outcome may be "adverse" does not render it "inequitable" (compare Matter of Dyno v Rose, 260 AD2d 694 [3d Dept 1999] and Matter of Tecler v Lake George Park Commn., 261 AD2d 690 [3d Dept 1999] with Matter of Harper v New York State Bd. of Elections, 34 AD3d 919 [3d Dept 2006] and Matter of Marland v Ambach, 79 AD2d 48 [3d Dept 1981]). The record demonstrates that Ms. Linda H. Overbaugh has been on notice of the errors in the designating petitions since June 30, 2009, thus giving her more than ample time to take measures to protect her legal and political interests. And the fact that Ms. Overbaugh's alleged interest "stands and falls" with the respondent-candidates further counsels against a finding of necessary party status (see Country Vil. Towers Corp. v Preston Communications, 289 AD2d 363 [2d Dept 2001], quoting Matter of Doner v Comptroller of the State of NY, 262 AD2d 750, 751 [3d Dept 1999]; see also Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 AD2d 715, 716 [3d Dept 1990], aff'd 78 NY2d 935 [1991]).

CERTIFICATE OF ACCEPTANCE

Turning to the merits, petitioners first contend that Respondent Overbaugh's failure to file a certificate of acceptance is fatal to her designation on the Conservative Party ballot line. "[A] person so nominated for public office by a party of which he is not a duly enrolled member, must decline or accept such nomination, otherwise such nomination shall be null and void. Such declinations or acceptances must be filed not later than five days after the mailing of notification of such nomination by such officer or board" (Election Law § 6-146 [4]; id. § 1-106 [2] [failure to timely file certificate is "fatal defect"]).

The Conservative Party petition was filed on July 14, 2009, and a certificate of authorization was issued by the local party on the same date. However, Respondent Overbaugh has not filed a certificate of acceptance of this designation. Accordingly, her designation as a Conservative Party candidate is null and void.

FRAUD

Petitioners also contend that the Republican Party and Conservative Party designating petitions are invalid due to pervasive fraud. As explained previously, this claim is based on the allegations that Respondent Linda L. Overbaugh never agreed or consented to run for the Office, did not authorize the collection of signatures on her behalf, and was not aware that petitions were being circulated on her behalf. In addition, petitioners allege that signatures continued to be collected even after Linda H. Overbaugh advised the local Republican Party chair that her middle initial and address had been incorrectly set forth on the designating petitions. Petitioners therefore allege that a fraud was committed upon the members of the Republican and Conservative parties because the petitions falsely suggested that Respondent Linda L. Overbaugh was running on a slate with the other three named respondent-candidates.

The respondent-candidates do not dispute Respondent Linda L. Overbaugh's lack of [*6]consent to be named on the petitions,[FN6] but argue that this case involves nothing more than an unintentional error regarding the declared candidate's middle initial and home address resulting from the highly unusual circumstance of two unrelated women with the same first name, last name and political party affiliation residing in close proximity. The respondent-candidates further contend that there is no legal basis for invalidating the designations of the other three candidates named in the petitions, particularly in the absence of proof from petitioners demonstrating that the designations of these candidates were the product of voter confusion rather than the will of local party members.[FN7]

In support of their contention that a candidate's lack of consent to appear on a multi-candidate designating petition constitutes a fraud against party members who sign the petition, petitioners cite a variety of judicial decisions (see e.g. Matter of Richardson v. Luizzo (64 AD2d 942, 943 [2d Dept 1978], aff'd 45 NY2d 789 [1978] for reasons stated below; Matter of Green v. McNab, 96 AD2d 918 [2d Dept 1983], aff'd for reasons stated below 60 NY2d 600 [1983]; Matter of Hunt v. Payton, 218 AD2d 774, 775 [2d Dept 1995]; Matter of DeAngelo v. DiFilippo, 196 AD2d 608 [2d Dept 1993]). The cited cases provide some measure of support for petitioners' contention that Respondent Overbaugh's lack of consent to be named on the petitions is fatal to the designations of all four respondent-candidates. However, a careful examination of the relevant statutory scheme, pertinent decisions of the Court of Appeals, and the analytical underpinnings upon which the cases cited by petitioners are based compels a contrary conclusion under the unusual facts and circumstances of this case.

The petitioning process by which a candidate is designated for party nomination at a primary election is detailed in Article 6 of the Election Law. Nothing in Article 6, however, expressly requires a person whose name is set forth as a candidate on a designating petition to give prior authorization or consent. Instead, Article 6 establishes a process for declination or acceptance of designations following the circulation of petitions. A party member designated as candidate "may, in a certificate signed and acknowledged by him, and filed as provided in this article, decline the designation" (Election Law § 6-146 [1]). A non-party member must affirmatively accept a designation for it to be effective (id. [4]; see supra).

Despite the absence of any statutory requirement that a candidate provide prior authorization or consent before being named on a designating petition, courts have recognized that the designation of a "sham" candidate who has no intention of serving may be stricken as a fraud upon the voters if done to circumvent the designating process set forth in the Election Law.

One type of fraud addressed by the courts concerns the use of a sham candidate for the purpose of allowing a committee on vacancies to later name a substitute candidate. Thus, in Matter of Farbstein v. Suchman (26 NY2d 564, 566-67 [1970]), the Court of Appeals stated that a party committee may not control a nomination by using a stand-in candidate who does not intend to serve: "A plan to utilize a stand-in candidate who intends to decline in order to permit a [*7]Committee to Fill Vacancies to control a designation, if sufficiently established as a means of circumventing the policy of the Election Law, may be held invalid" (id. at 567). However, the Court in Farbstein held that plaintiffs had failed to state a claim for election fraud — despite the candidate's informal "announcement" that he would not accept the designation while petitions still were being circulated — because there was no showing that he was named on the petition with an intent to later decline the designation (id.; see also Matter of Shaw v. Board of Elections of City of NY, 32 NY2d 833 [1973] [deliberate attempt at circumvention]).

Another line of authority concerns the inclusion of sham or non-consenting candidates on a multi-candidate petition, where one or more such individuals may be named for the purpose of attracting signatures for the remainder of the slate. In Matter of Richardson v. Luizzo, supra, a designating petition was declared invalid on the ground that "[a] fraud was committed on the enrolled voters of the party when the names of various candidates were placed on the designating petition without their consent." The designating petition "was misleading in that it suggested that the various candidates listed together intended to run together" (id.; see Matter of Green, supra).

Applying these authorities with due consideration of the legal principles upon which they are grounded, the Court is not persuaded that Respondent Linda L. Overbaugh's lack of consent to have her name appear on the petitions requires the invalidation of the designations of the other three named candidates. The authorities relied upon by petitioners, which derive from the common-law proscription against deliberate efforts to circumvent the legislatively established designation process, are distinguishable in several important respects.

First, there is no proof in the record of any intentional effort to circumvent the designating process set forth in the Election Law or to mislead or confuse party members. Petitioners have not shown that the "fraud" they allege is anything more than a clerical error regarding a declared candidate's middle initial and home address based on the coincidence of having two unrelated Republican women with the same first and last names residing in the same community: one active in local civic affairs who publicly announced her intention to pursue the Office, the other a politically inactive retiree.

While certain of the authorities relied upon by petitioners may appear to be framed solely in terms of lack of candidate consent, the Court observes that lack of consent often provides circumstantial proof of intent, an essential element of fraud. After all, if a party leader does not obtain the consent of a candidate and otherwise lacks a good faith basis to believe that the individual is willing to run for public office, it may be inferred that (1) the individual was named with the intention that he or she would later decline the designation and (2) the naming of the non-consenting candidate was done to allow the committee on vacancies to control the designation, to garner signatures for other members of the candidate slate, or for some other improper purpose.

Further, the Court of Appeals' decision in Farbstein strongly supports the proposition that fraud will not be found where the organizers of a petitioning effort begin the collection of signatures with a good-faith belief that a candidate has consented to appear on the designating petition (Farbstein, 26 NY2d at 566-567). For this reason, the fact that the chairman of the local Republican Party committee may have been advised of the mistake involving the two Linda [*8]Overbaughs after petitions already were in circulation is of no moment.

Second, there is no proof that the designations of Keith W. Valentine, Karen A. Deyo and Joseph F. Izzo resulted from voters having been deceived or confused. The only proof in the record regarding actual voter confusion comes from Respondent Linda L. Overbaugh, who avers that she signed the Republican Party petition under the misapprehension that it named Ms. Linda H. Overbaugh as candidate. This runs directly counter to petitioners' theory of deception, which alleges that voters were deceived into believing that Respondent Linda L. Overbaugh was running on a slate with the other three named respondent-candidates.[FN8]

Moreover, there is nothing in the record to suggest that party members would have declined to sign the petitions for the other three candidates in the absence of Linda Overbaugh's name. While some of the authorities cited by petitioners appear to rely upon a presumption of deception where a candidate has not consented to appear on a multi-candidate petition, the Court finds that the particular circumstances of this case are insufficient to trigger this presumption or, in the alternative, provide ample proof that the presumption has been rebutted. And even if the voters who signed the petition had a legitimate expectation that the four respondent-candidates would appear together as a slate on the primary ballot, these expectations must necessarily be tempered by the prospect that one or more of the named candidate may later decide to decline the designation or be removed from the ballot as a result of a legal challenge.

Based on the foregoing, the Court concludes that with respect to the designations of Keith W. Valentine, Karen A. Deyo and Joseph F. Izzo, petitioners have, under the unique facts and circumstances of this case, failed to meet their burden of overcoming the presumption of validity that attaches to designating petitions (Election Law § 6-154 [1]) and have failed to establish their claim of fraud by clear and convincing evidence (see Matter of Kraham v. Rabbitt, 11 AD3d 808 [3d Dept 2004]).

CONCLUSION

Accordingly, it is

ORDERED and ADJUDGED that the designations of Linda L. Overbaugh on the Republican Party and Conservative Party petitions filed with the Greene County Board of Elections as a candidate for the Greene County Legislature for the First Legislative District at the September 15, 2009 primary election are declared invalid, null and void; and it is further

ORDERED that the Greene County Board of Elections is restrained from printing and placing the name of Linda L. Overbaugh on the ballot at the September 15, 2009 primary election for the Greene County Legislature for the First Legislative District; and it is further

ORDERED, ADJUDGED and DECREED that the Verified Petition is granted to the limited extent expressly set forth herein and denied in all other respects.

This constitutes the Decision, Order & Judgment of the Court. All papers including this Decision and Order are returned to counsel for petitioners. The signing of this Decision, Order & Judgment shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved [*9]from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Catskill, New York

August 6, 2009

RICHARD M. PLATKIN

A.J.S.C. Footnotes

Footnote 1: The record does not disclose the BOE's disposition of Ms. Ruck's objection to the Conservative Party petition.

Footnote 2: The respondent-candidates do not challenge petitioner Ruck's standing as to the Republican Party petition.

Footnote 3: The respondent-candidates make no similar allegation with respect to the Republican Party petition. In any event, the Court would reject such a claim for the reasons that follow.

Footnote 4: Given the Court's disposition on the merits, a contrary conclusion as to this issue would not alter the Court's judgment in any respect.

Footnote 5: Contrary to the suggestion of respondent-candidates, Ms. Linda H. Overbaugh is subject to the jurisdiction of this Court (Windy Ridge Farm v. Assessor of Town of Shandaken, 11 NY3d 725 [2008]). "A statute of limitations does not deprive a court of jurisdiction nor even a litigant of a substantive right, but is merely a defense which may, if properly asserted, deprive a plaintiff of any remedy from a defendant" (Matter of Romeo v. New York State Dept. of Educ., 41 AD3d 1102, 1104 [3d Dept 2007]).

Footnote 6: In any event, an affidavit from Respondent Overbaugh provides confirmation of petitioners' allegation (see Affidavit of Linda L. Overbaugh, sworn to July 29, 2009).

Footnote 7: The respondent-candidates fail to offer any basis for allowing Respondent Linda L. Overbaugh to remain on the ballot. Accordingly, that branch of the petition is granted upon consent.

Footnote 8: Indeed, it appears highly likely that other signers of the petitions believed that they were designating the publicly announced candidate for the Office, rather than a politically inactive retiree with the same first and last name. And this confusion would have resulted even if Respondent Linda L. Overbaugh had consented to appear on the petitions as a candidate.