Matter of Rustin v Bugbee

[*1] Matter of Rustin v Bugbee 2015 NY Slip Op 51423(U) Decided on October 1, 2015 Supreme Court, Rensselaer County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2015
Supreme Court, Rensselaer County

In the Matter of the Application of John Rustin, as Chairman of the Rensselaer County Republican Committee, and Richard M. Crist, Harry Tutunjian, Darcie Casey, Todd Jojo, Jessica Charette, Melissa LaFortune, Michael Angley and Virginia Bott, Aggrieved Objectors, Petitioners,

against

Larry Bugbee and Edward McDonough, Commissioners Constituting the Rensselaer County Board of Elections, and Jennifer Gill Sober, Tracey Lee Rex, Linda Underwood, Susan J.W. Steele, Lynne M. Kopka, Wayne P. D'Arcy, Carole Claren-Weaver, Cary Dresher, Patrick Madden, Edward F. Dyer, M. Bridget Fritz, Antoinette L. Murphy, Andrea Smyth, Peter M. Stenson, William C. Jennings, and George B. Burke, III, Purported Candidates, and Barbara Fiala, Rachel Gold, Kathleen Joy, and Diane Dimeo, and the Purported Women's Equality Party, Respondents.



251142



David L. Gruenberg, Esq.

Attorneys For Petitioners

54 Second Street

Troy, New York 12180

Thomas V. Kenney, Jr., Esq.

Attorney for Respondents Edward McDonough and Jennifer Gill Sober

65 Second Street

Troy, New York 12180

Greenberg Traurig, LLP

Attorneys for Respondents Rachel Gold and Kathleen Joy

Steven C. Russo, Esq., of counsel

54 State Street

Albany, New York 12207
Henry F. Zwack, J.

Petitioners filed this Verified Petition seeking to invalidate the nominating petitions of all of the named respondents, arguing that the Certificates of Nomination of the Women's Equality Party of the State of New York ("WEP") are "insufficient, ineffective, false, fraudulent, and invalid, do not conform to the provisions of the Election Law and other laws of the State of New York, and are null and void by reasons of the facts and allegations set forth herein." As their authority, petitioners cite to a case in Niagara County where the WEP was enjoined from appearing on the general ballot, DeLabio v Allen, Index No. 156792, September 15, 2015, Caruso, J.[FN1] In that decision, according to petitioners, respondents Gold and Joy were enjoined from issuing nominations as their "purported committee" failed to meet the requirements of Election Law 6-128(4). Although the Rensselaer County Board of Elections ("BOE") has not made a determination on this issue, petitioners argue that a determination validating the certificates of nomination would be contrary to the law and arbitrary and capricious. The petition therefore seeks to restrain the BOE from placing these names on the on the official ballots during the upcoming General Election.

Petitioners also argue that the Certificates of Nomination on behalf of each of the respondent-candidates are insufficient, ineffective, false, fraudulent and invalid and do not conform to the provisions of the Election Law.

Respondents Edward McDonough and Jennifer Gill Sober submitted a Verified Answer in which they raised six affirmative defenses, all but one, "the proceeding lacks a [*2]necessary party," were subsequently withdrawn. These respondents argue that because the New York State Board of Elections was not named as a party in this proceeding, the petition must be dismissed, as complete relief cannot be given. The law firm of GreenbergTraurig (Steven C. Russo, Esq., of counsel) on behalf of WEP and Rachel Gold and Kathleen Joy, has submitted opposition to the petition, however, no formal answer was submitted. Nor did the firm appear on the return date of the Order to Show Cause.

Petitioners are registered voters who allege they are qualified to vote in the general election in Rensselaer County. They allege they filed "General and Specific Objections" to the Certificate of Nomination on September 17, 2015 with the Rensselaer County Board of Elections. They allege that the WEP's nomination of the individual candidates are invalid as a result of invalid party rules, and that the certificate of nominations themselves are invalid.

In order to discuss the argument regarding the invalidity of the rules under which the candidates were nominated, a bit of a background is necessary. Election Law 6-128 (4) requires that before a set of rules can be recognized as valid, a "majority of the statewide candidates who ran on that line must agree." The record shows that several candidates for public office in New York circulated independent nominating petitions in 2014 to run on a ballot line entitled "Women's Equality Party". The four statewide elected officials currently in office (Andrew Cuomo, Eric Schneiderman, Kathleen Hochul and Thomas DiNapoli) were all candidates on that ballot line—at that time the WEP was an "independent body" under the Election Law. An independent body is an "organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a [political] party" (Election Law 1-104 [12]). After more than 50,000 votes were cast for Governor Andrew Cuomo on that line, the WEP became a political party by operation of Election Law 1-104 (3). On July 2, 2015, rules of the WEP were filed with the State BOE. They established certain interim committees and named interim officers-Barbara Fiala, Kathleen Joy and Rachel Gold. Certificates were included in the filing reflecting approval by Cuomo and Hochul.

At the present time, there are two additional separate groups who have filed purported rules of the WEP with the State Board of Elections, and as a result, there is a question as to which set is controlling. Tamburlin and Tkaczyk head the respective groups, and the rules filed by these groups are not supported by any certification of the statewide candidates.

The issues before this Court have largely been determined by other courts in recent weeks. In the case cited by petitioners, DeLabio v Allen, September 14, 2015, Niagara County Supreme Court (Caruso, J), in dealing with nominating petitions from the Tamburlin group, the Court held that it did not have a majority of the statewide candidates endorsing its rules—it in fact had none— and went further to state that none of the three groups had a "majority" of the statewide candidates. On appeal, the Appellate Division, Fourth department upheld the Court's determination that the Tamburlin group [*3]was invalid, but found that the Court went too far in holding that none of the groups were valid.

In Smith v Thane, September 28, 2015, Montgomery County Supreme Court, (Sise, J) the Court adopted and followed the Fourth Department in concluding that Election Law 6-128 (4) recognizes only the rules of the WEP that are certified by at least one candidate of the WEP from the statewide election, which precludes the Tamburlin and Tkaczyk groups, because they do not have certification of any of the four statewide candidates. The Court found those groups to be a "nullity", and upheld the nominating petition of Ann Thane for mayor of Gloversville under the Gold WEP rules.

In Van Savage v Fiala, September 29, 2015, Albany County Supreme Court (Platkin, J) the Court found that the Tkaczyk's group's rules would be invalid for exactly the same reason as set forth in DeLabio, although no nominating certificates had as yet been filed by that group.

Justice Platkin went on to discuss that the absence of the certification of a majority of the statewide candidates did not render invalid the rules of the Gold group. He did, however, dismiss the Gold nominating petitions because they did not comply with Election Law 6-128 (1)(g), which requires that a certificate of nomination include an "affidavit containing a statement by the presiding officer and secretary of the committee that they are officers and the statements in the certificate are true [emphasis added]." This Court agrees with the legal reasoning set forth in Justice Platkin's order, which found that the certificate of nomination filed herein is not sufficient to meet the requirements of the Election Law. The requirement that a certificate of nomination include an affidavit from the presiding officer is a legislatively mandated element of the certificate of nomination. The omission of the affidavit is fatal (Matter of Alamo v Black, 51 NY2d 716 [1980]). Here, the certificate nominating the respondent candidates does not comply with Election Law 6-128 (1)(g), as there is no jurat or representation that Gold and Joy swore to the truth of the statements therein (Bonner v Negron, 87 AD3d 737 [2d Dept 2011]). Simply stated, there must be a showing that an oath was administered pursuant to CPLR 2309(b) in a form "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious and ethical beliefs" (Quintyne v Canary, 104 AD2d 473 [2nd Dept 1984]).

Finally, with respect to respondents' position that the petition must be dismissed because the State Board of Elections has not been made a party, the Court finds that for the purposes of this proceeding, involving only elections for various public offices in towns and city within Rensselaer County, the State Board of Elections is simply not a necessary party. Clearly, it is the Rensselaer County Board of Elections which is charged with determining the instant objections, and the body which will certify and place respondents name on the respective County town and/or city ballot, as the relevant governing body, and the State Board of Elections role, if any, would simply be ministerial (Sparrow v Riddick, 2003 WL 728778 [Sup Ct 2003]; Dioguardi v Donohue, 207 AD2d [*4]922 [3d Dept 1994]).

Given the defect in the Certificates of Nomination, the petition must be granted, and the Board of Elections is directed to remove the purported WEP candidates from the ballot for the November 3, 2015 election.

Accordingly, it is

ORDERED, that the petition granted.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorney for the Petitioners. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: October 1, 2015

Troy, New York

___________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

1. Order to Show Cause dated September 22, 2015; Verified Petition dated September 22, 2015; Exhibits "A" through "D"

2. Verified Answer of Respondents McDonough and Sober dated September 25, 2015.

3. Affirmation of Steven C. Russo in Opposition, dated September 25, 2015, together with Exhibits "A" through "D";

4. Letter from Thomas V. Kenney, Jr. dated September 28, 2015 in opposition to the petition.

5. Letter from David Gruenberg, Esq., in further support of the petition, together with Certified Copy of Rules of the New York State Committee of the Women's Equality Party, Organizational Meeting, Party Emblem, Letter from Steven C. Russo, Meeting held on September 18, 2015.

6. The following additional Decisions, Orders and Judgments: Van Savage v Fiala, Index No. 4596-15, Albany County Supreme Court, September 29, 2015; Smith v Thane, Index No 2015-0730, Montgomery County Supreme Court, September 28, 2015. Footnotes

Footnote 1:That case was reversed on appeal, the 4th Department concluding that the Court went too far in finding that all three factions of the WEP were invalid under the requirements of Election Law 6-128(4).