Hensley v Mattews
Annotate this Case
Download PDF
Hensley v Mattews 2014 NY Slip Op 32742(U) October 24, 2014 Sup Ct, Suffolk County Docket Number: 20602/14 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] DECISION AND ORDER FILED & ENTERED /O I ;J<j /1 4 To commence the statutory period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this Order , with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK IAS PART, SUFFOLK COUNTY Present: HON. MARY H. SMITH Supreme Court Justice -------------~------------~-----~-----------------------~----------~--~->< PAUL M. HENSLEY, Candidate-Agg rleved, MOTION DATE: 10/23/14 INDEX NO.: 20602/14 -againstJAMES F. MATTHEWS, STEVE HACKELING, PATRICIA GRANT FLYNN, WALTER D. LONG and PAUL H. SENZER, Respondents-Candidates, -andANITA S. KATZ and WAYNE T. ROGERS, Commissioners Constituting the Suffolk County Board of Elections, . Resp onden~ . ------------------~----------------------~-~~~------------~-~~~---------)( The following papers numbered 1 to 17 were read on this petition by Candidate Aggrieved Hensley for judgment declaring that the form of the ballot prepared for the public office of Suffolk County District Cou rt Judge, 3 rd District, improperly fails to comply with section 7-104 of the Election Law, etc., and on this motion by Respondent-Candidate Hackeling for an Order pursuant to CPLR 3211, subdivision (a), paragraph (a), subdivisions 1 and 7, dismissing the petition, and on this purported motion by Respondents Commissioners constituting the Suffolk County Board of Elections for an Order pursuant -1- [* 2] to CPLR 3211 , subdivision (a), paragraph (a), subdivisions 1 and 7 , dism issing the petition. 1 Papers Number~q Order to Show Cause - Petition - Affirmation (Schlesinger) - Ballot ............... ... ..... ..... 1-4 Notice of Motion - Affirmation (Messina) .............. ........... ....... .................. · ·· · · ·· · ·· ··· ·· · ··· 5-6 Answering Affirmation (Lolis) - Affidavit (Katz, Rogers) - Return - Exhs ......... ............. 7-10 Answer (Long ) .. .. ..................................................... .............. ........ ·· · .. · · · ·· · ·· · · ·· ·· · ·· · .. ·· ·· 11 Answer (Matthews) ........ ............... ............................... ....... ............ ... .................. ........ 12 Letter Response (Board of Elections) - Exh ......................... ... .... .. .. .. .......... ............. ... 13-1 4 Answering Affirmation (Bagnuola) - Exhs. (A-B) ........................ ...... .... .. ....... ........... 15-16 Answer (Flynn) ......... ... .... ... ...... ... ... .......... ... ..... ..... ... .. . ...... . .. ... . . ... . .. . .. . . ... ... . . .. .... .. ... . 17 Upon the foregoing papers, and this Court's having entertained two hour oral arg ument on the record by telephone conference, attended by all interested parties other than respondent Senzer who appears to be in default, it is hereby Ordered and adjudged that this petition and d ismissal motions are disposed of as follows 2 : This is a special proceeding pursuant to the Election Law section 16-104, subdivision (1), 3 wherein a candidate for the position of District Court Judge, District No. 3, Paul M. Hensley ("petitioner"), seeks judgment declaring that the form of the ballot that 1 The Court finds that respondents Commissioners constituting the Suffolk County Board of Elections has not properly moved for dismissal of this proceeding. This proceeding, commenced on October 20, 2014, had been returnable before the undersigned at 10:30 a.m., on October 23, 2014, at which time all parties had presented their respective arguments and positions. Contrary to what this Court reca lls had been the representation made by counsel for the Board, the latter, at that time , had neither filed and served a Notice of Motion, nor had obtained a signed Order to Show Cause. See CPLR 2214. Nevertheless, in the absence of any objection based thereon, and given that all parties have had a full opportunity to argue the ir positions, including the Board's having argued that it is entitled to dismissal, the Court will entertain the Board 's belated motion for dismissal. 1 The undersigned had been assigned this matter in the afternoon of October 22, 2014, by Order of Hon. Randall T. Eng, Presiding Justice, Second Appellate Division. 3 The Court notes that petitioner himself has not identified the Election Law provision supporting his relief requests. -2- [* 3] has been prepared by respondent Board of Election and certified for the election to be held, on November 4 , 2014, is violative of Election Law section 7-104 in that it (1) fails to minimize the number of columns on the ballot for the Office of District Court Judge, 3rd District, Suffolk County; (2) fails to limit the number of columns on the ballot for the Office of District Court Judge, 3rd District, Suffolk County, equal to the number of candidates to be elected to that office; and (3) improperly segregates by the inclusion of blank spaces on the ballot the names of the candidates for the Office of District Court Judge, 3rd District, Suffolk County. Additionally, petitioner seeks an Order directing respondent Board of Elections "to cause to be prepared and furnished to the proper officials ballots for the general election to be held on November 4 , 2014, for the public office of District Court Judge, 3rdDistrict, Suffolk County, in a form and manner that, inter alia, cures the defect(s)" above described. According to petitioner, his petition is timely because the Board of Elections (the "Board") had mailed its Thursday, October 9, 2014, letter to him, which letter had not been received by petitioner until Wednesday, October·14, 2014, the delay attributable to the intervening weekend and Federal Columbus Day holiday, inviting him pursuant to Election Law §7-130, to view and inspect the voting machines between 9:30 a .m . and 4 :00 p.m .. on October 20 through October 24, 2014, prior to their being shipped out to polling sites , and further stating that sample ballots would also be available at that time , upon request. Petitioner states that, in accordance with the foregoing , he had arrived at the Board of Elections on October 20, 2012, whereat for the first time he saw the official ballot herein being challenged. The instant Order to Show Cause promptly had been brought that same day. (Behar, J .). -3- [* 4] Petitioner also maintains that his petition has substantive merit because Election Law section 7-104, subdivision 4, paragraph (c), states that "[e]ach office shall occupy as many columns or rows on the machine as the number of candidates to be elected to that office," and here, while only three candidates are to be elected District Court Judge for District 6, the official ballot unnecessarily includes four columns . Moreover, petitioner contends that case law requires that the candidate's names appear on the ballot in columnar spaces immediately after one another, "with no blank spaces intervening," citing Hardwood v. Dodd, 78 A.D.2d 644 (2°d Dept. 1980), and that here the official ballot improperly includes blank spaces. Respondents Hackeling and the Board oppose the petition and each is moving to dismiss same, both arguing that this proceeding has been commenced "far too late" and that it is untimely because it now is ''impossible" to render any meaningful relief to petitioner given that it in fact cannot effectuate any change to the ballot in time for the November 4th election. Respondents state that all of the voting machines having been programmed and tested, the Board having represented that it would take approximately four weeks to reprogram a software change into the voting machines whereas there now is only nine days before Election Day, that ballots throughout the County already have been printed, that absentee and m ilitary ballots already have been mailed to qualifying voters , and that voting machines already have begun to be transported to the 1053 election districts. Respondents Comm issioners Katz and Rogers aver in their joint affidavit that the new electronic voting systems use election software programs which interrelate all aspects of the process so that any change in the ballot adding or, as here proposed, moving a candidate in any race, in any election district, will require that the entire process start anew, -4- [* 5] including ordering new ballots for the County, erasing and re-programming all of the voting machines' memory cards, re-testing all of the machines, and re-mailing military and absentee ballots. Respondents rely upon several Court decisions, including one only weeks old, holding that petitions for relief under the Election Law properly should be dismissed where, as here, if the Court were to entertain the merits of the petition, it would be impossible "to render meaningful relief in compliance with the Election Law." Matter of Hunter v. Orange County Board of Elections, 11 N.Y.3d 813 (2008); see. also Matter o~ Semple v. Laine, _ A.D.3d _, 2014 WL 5003885 (2"d Dept. 2014); Matter of King v. Board of Elections in City of N.Y., 65 A.D .3d 1060 (2°d Dept. 2009). Moreover, respondent Board claims that its r:nailed October 9, 2014, letter to petitioner and others inviting them, pursuant to Election Law §7-130, to view and inspect the voting machines between 9:30 a.m. and 4:00 p.rn., on October 20 through October 24, 2014, prior to their being shipped out to polling sites, and stating that sample ballots will also be available at that time, enables compliance with the time requirement set forth in Election Law section 16-104, subdivision 4, notwithstanding the Assistant County Attorney's candid admission during the Court's conference that th is time period makes it extremely difficult, if not impossible, for any candidate to thereafter viably challenge the ballot given the complexities and approximate four week time-requirements of making any changes to an electronic ballot. Nevertheless, it is respondents' urged positions that petitioner has self-created his problem of timeliness since petitioner has known through earlier litigation that this has been a vigorously challenged campaign, that he would be in third ballot position pursuant to his party's nominating petition, and that he could have requested as early as October4, 2014, -5 - [* 6] to have seen the prepared ballot, which then was being mailed to military personnel, but that he had failed to do so. In any event, aside from the alleged untimeliness, respondents further contend that the petition challenging the ballot substantively is without merit because the extant ballot complies with the Election Law and is valid in all respects. Citing Election Law section 7116, subdivision (2), respondent Board argues that the Commissioners of the Board of Elections are charged with the responsibility of creating tlhe ballot and establishing the order in which the candidates appear. They note, as supported by the Commissioners' submitted joint affidavit, that the Commissioners have agreed as to the form of the ballot Respondents claim that it is the long established "custom and practice" of the Suffolk County Board of Elections to place cand idates on the ballot in the order that they appear on the nominating petitions, as here has been done, that petitioner has acknowledged that he properly is in third party position based upon the nominating petitions, which the challenged ballot reflects, that overlapping minor party endorsements have necessitated the form of the subject ballot, and that not only does case law not hold that blank spaces on ballots must be eliminated, as argued by petitioner, cf. Harwood v. Dodd, supr<:!. but that there has been prior judicial approval of a ballot such as that at bar which includes four columns for three vacancies ·and blank spaces. See Brown v. Degrace, 193 Misc.2d 391 (Sup. Ct. Nass. Co. 2002), affd. 298 A.D.2d 536 (2"d Dept. 2002) . After long and deliberate thought, this Court is constrained under the rule of precedent to grant respondents' motions seeking dismissal of this petition, finding that the unrefuted evidence at bar demonstrates that, while the petition itself is not jurisdictionally untimely, upon consideration of the merits of same, it would be impossible to render -6- [* 7] petitioner any meaningful relief given that Election Day now is just eleven days away. See Matter of Hunter v. Orange County Board of Elections, supra, 11 N.Y .3d 813; Matter of Semple v. Laine, supra; Matter of King v. Board of Elections in City of N.Y., supra. The petition accordingly is hereby dismissed. Nevertheless, this Court makes the following observations. Firstly, irrespective of petitioner's argument that he had no duty to check the official ballot prior to October 20, 2014, as well as irrespective of whether petitioner could and should prudently have been more pro-active in his ~arlier seeking out review of the official ballot, the Board's mailing of its invitation to petitioner, on October 9, 2014, for him to inspect the voting machines and the ballot, commencing October 201n, while timely and in accordance with the requirements of Election Law section 7-130, as claimed by respondent Board, nevertheless, time wise. does not comport with the requirements of enabling proper judicial review of any proceed ing that may have been desired to be brought challenging said ballot insofar as Election Law section 16-104, subdivision 4 , requires that a final Court Order addressing the contents of a ballot pursuant to a brought proceeding "shall be made, if possible, at least five weeks before the date of the election." Applying this statutory 5-week time requirement, ths Court should have entered its final Order on any formal challenge to the ballot five weeks prior to the scheduled election date, to wit, on or before September 30, 2014. Obviously, the instant matter, having been commenced on October 20, 2014, and made returnable on October 23, 2014, results in a gross departure from the time requirements set forth in section 16-104 , subdivision 4 . The Court's second observation is that it is entirely inadequate to merely afford candidates the theoretical right to challenge a ballot's form while at the same time - 7- [* 8] necessarily denying any actual and meaningful way in which to obtain that review given the impossibility of granting any such relief in light of the actual demands of effective any changes to an electronic ballot. It is clear that current Election Law statutes need to be revisited and functional time periods must be implemented to afford candidates the right to challenge ballots in any meaningful way. Finally, the Court notes that petitioner, pursuant to this Court's request, has proffered what appears to be a workable ballot which further adheres to Election Law section 7-104, subdivision (c)'s requirement that "[e]ach office shall occupy as many columns or rows on the machine as the number of candidates to be elected to that office," in this case three, as well as which further respects the custom and practice of placing candidates on the ballot in accordance with the nominating petitions. Wh ile the Commissioners' job of creating a ballot is merely ministerial, no one seriously can dispute that one's position on the ballot more times than not has a very real and pronounced effect on an election 's outcome. With that in mind, the Commissioners always should endeavor to perform their duty, not simply to create what arguably is a legal ballot, but also a ballot which is fair to all candidates and not prejudicially configured. In closing , the Court extends its gratitude to the parties for their professionalism and skill in presenting their respective arguments, having extended courtesies with respect to practice procedures and timely having addressed the Court's requests for further submissions. - 8- [* 9] Dated: October 24, 201 4 White Plains, New York J.S .C. Japan Schlesinger LLP Attys. For Pet. 300 Garden City Plaza Garden City, New York 11530-3324 Sinnrecih Losakoff & Messina, LLP Attys . For Resp. Hackeling Courthouse Plaza 267 Carleton Avenue, 3rd fl. Central Islip, New York 11722 Dennis M. Brown Suffolk County Attorney's Office Attys . For Resp. Board of Elections H. Lee Dennison Building 100 Veterans Memorial H~ghway P. 0 . Box 6100 Hauppauge, New York 11788-0099 Walter 0. Long, Jr., Esq. Pro Se Resp . 490 Wheeler Road, Suite 165K Hauppauge, New York 11788 -9- [* 10] Law Offices of Stuart P. Besen Attys. For Resp. Matthews 825 East Gate Boulevard, Suite 202 Garden City, New York 11530 Harris Beach PLLC Attys. For Resp . Flynn 333 Earle Ovington Blvd .. Suite 901 Uniondale, New York 11553 -10 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
