Matter of Lavell v Jaeger

[*1] Matter of Lavell v Jaeger 2017 NY Slip Op 51043(U) Decided on August 10, 2017 Supreme Court, Erie County Colaiacovo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2017
Supreme Court, Erie County

In the Matter of the Application of Patricia Lavell, Petitioner-Objector,

against

Marjory H. Jaeger , Respondent-Candidate.



I-2017-000091



Attorney for Petitioner-Objector:

Jerome D. Schad, Esq.

Attorney for Respondent-Candidate:

Joseph T. Burns, Esq.

Attorneys for Erie County Board of Elections, Commissioners Jeremy J. Zellner and Ralph M. Mohr:

Michael A. Siragusa, Esq.

Jeremy C. Toth, Esq.

Erie County Attorney's Office
Emilio Colaiacovo, J.

The Petition before the Court was filed pursuant to Election Law §§ 6 and 16 seeking to invalidate certain nominating petitions that were filed designating the Respondent-Candidate, Marjory H. Jaeger (hereinafter "Respondent-Candidate"), to be a candidate for the public office [*2]of Supervisor of the Town of Amherst. Petitioner, Patricia Lavell (hereinafter "Petitioner"), asserts that Respondent-Candidate is ineligible to run for this position because of a local town ordinance that provides for term limits (hereinafter "Term Limits Law"). Respondent-Candidate, the incumbent Town Clerk, maintains that the Term Limits Law does not apply and that she is eligible to run for the office of Town Supervisor. The Erie County Board of Elections and its commissioners took no position on the relief requested.

PAPERS SUBMITTED

The following papers were submitted for the Court's consideration:

1. Order to Show Cause filed July 20, 2017 and Verified Petition dated July 20, 2017 (Exhibits: "A" Amherst Local Town Ordinance Chapter 55 "Term Limits"; "B" General and Specific Objections to Designating Petitions filed pursuant to Election Law §6-154);

2. Affirmation of Service filed July 27, 2017;

3. Verified Answer dated July 27, 2017;

4. Attorney Affirmation of J. Matthew Plunkett, Esq., dated July 27, 2017;

5. Petitioner's Memorandum of Law dated July 31, 2017;

6. Erie County Board of Elections File, marked as "Court's Exhibit 1" on August 1, 2017;

7. Attorney's Affirmation of J. Matthew Plunkett, Esq., dated August 2, 2017;

8. Attorney's Affirmation of E. Thomas Jones, Esq., dated August 2, 2017; and

9. Affirmation Objecting to Respondent-Candidate's Supplemental Affirmations of Jerome D. Schad, Esq., dated August 4, 2017.

PROCEDURAL HISTORY AND FACTS

In 2006, the Town of Amherst, New York enacted Local Law No. 10-2006, which was entitled "Term Limits Law". According to the section entitled "Legislative intent", the Town of Amherst intended to expand participation in the electoral process and bring new ideas to town governance. The Term Limits Law, which applies to all elected town offices except for town justice, states, in relevant part:

§55-3 Term limits established: No elective public officer of the Town of Amherst shall have more than two consecutive terms of four years each in the same public office. For the purposes of this chapter, "same public office" shall mean any and all public offices that are the same as the office that the elective public officer last held. Any terms of office held prior to November 6, 2007, [sic] general election shall not be counted for term limitation purposes.§55-5 Other elective office: Nothing contained in this chapter shall prohibit an elective public officer from seeking, being elected to, or holding another and different public office in the Town of Amherst at the conclusion of a term of public office as required by this chapter.

The Respondent-Candidate was elected to the public office of Town Clerk in Amherst in 2011 and began her term of office on January 1, 2012. She was re-elected to another term as Clerk in 2015 and began that term on January 1, 2016. She has not completed her second term of office as Clerk.

Recently, the Respondent-Candidate circulated Designating Petitions for Amherst Town Supervisor, a public office which will appear on the November 2017 ballot. The Designating Petitions filed were for the Republican, Conservative, Independence, and Reform political parties.

Petitioner filed General and Specific Objections to the aforementioned Designating [*3]Petitions on July 17, 2017 pursuant to Election Law §6-154. The Petitioner filed her Petition and Order to Show Cause on July 20, 2017 in anticipation of the Erie County Board of Elections rendering its administrative determination on her objections. On July 31, 2017, the Erie County Board of Elections unanimously qualified the petitions of the Respondent-Candidate. See Court's Exhibit 1. Thereafter, this Court heard oral argument on the Order to Show Cause and Petition on August 1, 2017.

ARGUMENT

Petitioner

Petitioner maintains that the Term Limits Law effectively prohibits the Respondent-Candidate from running for Town Supervisor. In particular, Petitioner acknowledges that the Term Limit Law prevents current public officials from having "more than two consecutive terms of four years each in the same public office." See Term Limit Law §55-3. Petitioner argues, however, that the Term Limits Law requires a break in service from one's current position before seeking election to another office. Because the Respondent-Candidate has not yet completed her second term as Town Clerk, the Petitioner maintains that the Respondent-Candidate would have to either complete her term and take a two-year break from service before running for another elected office or resign from her current office prior to being designated on petitions to seek another public office within the Town of Amherst.

Petitioner believes that the Respondent-Candidate's candidacy for Town Supervisor is an affront to the legislative intent of the Term Limits Law, which was designed to "expand participation in the electoral process and bring new ideas to governance of the Town." See Term Limit Law §55-2. Petitioner asserts that the Court should not resort to construction or interpretation, but instead abide by the Term Limit Law's legislative intent. People ex. Rel. New York Cent. & H.R.R. v. Woodbury, 208 NY 421 (1913); City of Buffalo v. Lawley, 6 AD2d 66 (4th Dept. 1958). Further, Petitioner maintains that the language of the statute is clear and that the text is the controlling factor when analyzing the merits of her argument. Majewski v. Broadalbin-Perth Central School District, 91 NY2d 577 (1998).

Lastly, Petitioner asserts that the Term Limits Law is enforceable and supersedes any general law to the contrary. Canzano v. Town of Gates, 85 AD2d 878 (4th Dept. 1981). It should be noted that there has been no challenge to the Term Limits Law that is the subject of this petition.

Respondent-Candidate

Like the Petitioner, Respondent-Candidate maintains that the text is controlling. However, Respondent-Candidate adopts an alternate conclusion. Respondent-Candidate asserts that §55-3 is clear and does not stand for the proposition as alleged by the Petitioner. Instead, Ms. Jaeger argues that the Term Limits Law is designed to prevent a Town of Amherst elected official from serving "more than two consecutive terms of four years each in the same public office." See Term Limits Law §55-3. As such, Respondent-Candidate holds that there is no limit or restriction on her candidacy for Town Supervisor as advanced by the Petitioner because she is running for a different office.

Ms. Jaeger asserts that Petitioner is suggesting that the statute stands for something that it does not. Respondent-Candidate submitted two affidavits from J. Matthew Plunkett, Esq., and E. Thomas Jones, Esq., who were Deputy Town Attorney and Town Attorney in Amherst at the time the ordinance was drafted, debated, and adopted. Both maintain that Petitioner is misrepresenting the intent of the Term Limits Law. In particular, both argue that the Term [*4]Limits Law applies only where an individual is term-limited in an existing office and that "the term limitation in one office in no way prohibits that individual from seeking another, different, town office." See Affirmation of J. Matthew Plunkett, Esq., dated July 27, 2017. Further, both Town Attorneys state that the Term Limits Law only applies to people who held two consecutive terms in the same office and does not bar current office-holders from, as is the case here, seeking a separate and different town office. Indeed, Respondent-Candidate insists that the Term Limits Law in no way requires a sitting office-holder complete one existing term before seeking a different town office.

In his affirmation, E. Thomas Jones states that the Town, in adopting the Term Limits Law, did not intend to bar officials from seeking or holding other town offices. Further, Mr. Jones held there was never any discussion for there to be a mandatory "time-out" before seeking another, different office. In addition, Mr. Jones identified two instances where an existing town elected official, in the middle of their term, sought another office. Deborah Bucki, while a sitting Town Board member, ran and was elected to the Office of Town Clerk. In the last election for Town Supervisor, in the middle of his term, Town Board member Mark Manna ran for Town Supervisor.

Further, Respondent-Candidate argues that Petitioner's argument is not ripe. Inasmuch as the date of commencement of the term for the office in question has not arrived yet, Respondent-Candidate argues that the relief requested is premature. Locke v. Walsh, 120 AD3d 997 (4th Dept. 2014). Because the argument is not ripe for review, Ms. Jaeger contends the petition must be dismissed.

In response to the Respondent-Candidate's Answer, Petitioner disagrees that the issue is premature as suggested. Relying on Election Law §6-122, Petitioner maintains that a candidate shall not be designated if they are ineligible to be elected for such office. Believing the Respondent-Candidate cannot run for the office of Town Supervisor in light of the Term Limits Law, Petitioner insists Ms. Jaeger is ineligible and thus the relief requested is ripe for determination.

Lastly, the Respondent-Candidate maintains that the Petitioner's interpretation of the Term Limit Law runs afoul of the Municipal Home Rule Law in that it seeks to impose a "resign to run" provision that otherwise appears nowhere in the actual law. If accurate, this would frustrate the purpose of the Municipal Home Rule Law, which exists to prevent concealment and surprise to the public. See Municipal Home Rule Law §20(3).

DECISION

Procedural Objection

Counsel for Petitioner objects to the inclusion of the affirmations of J. Matthew Plunkett, Esq., and E. Thomas Jones, Esq., which were submitted after the hearing date. In particular, Mr. Schad opposes the Court's consideration of these affirmations as they are not a responsive memorandum. Ms. Schad believes that any further submissions were to be limited to a reply memorandum to his previously submitted memorandum of law.

The Court consulted the transcript of the proceedings, which provided the following:

THE COURT: And I don't think we need to memorialize this in writing at all, but any type of submissions will be due Friday at nine.MR. SCHAD: Okay.

(Transcript, Page 22)

It is clear that the Court set no such restriction on what type of papers were to be submitted.

Nevertheless, it is well settled that trial courts have broad discretion to accept or reject supplemental briefings as part of their inherent authority to regulate motion practice before them. Pena-Vazquez v. Beharry, 82 AD3d 649 (1st Dept. 2011). In fact, every court is vested with powers that permit them to do things necessary for the administration of justice including, but not limited to, accepting late papers, sur-reply papers or otherwise regulate proceedings before it. Liotti v. Peace, 959 N.Y.S.2d 90 (Sup. Ct. Nassau Co. 2003); Gabrelian v. Gabrelian, 108 AD2d 445 (2nd Dept. 1985). This Court believes that the additional affirmations submitted are reasonably related to and appropriate for a proper determination of the Petition. Proctor v. ALCOA, Inc., 2015 NY Misc. LEXIS 63 (NY Sup. Ct. 2015). As such, the Court will consider the Affirmations, for what they are worth, and apply the appropriate weight to them when rendering its decision.

Term Limits Law

Towns and local municipalities are empowered by the New York State Constitution (Article IX, §2[c]) to adopt and amend local laws that are not inconsistent with the Constitution or any general laws relating to its "property, affairs or government." It especially refers to "powers, duties, qualifications, number, mode of selection and removal, [and] terms of office of its officers and employees." NY Const. art IX. §2 [c] [ii] [1].This specific grant of power to localities is conferred by Municipal Home Rule Law §51.

Town and Village governments have referred to the Municipal Home Rule Law when enacting term limit legislation, such as the one in controversy here. Roth v. Cuevas, 603 N.Y.S.2d 962, aff'd 82 NY2d 791 (1993). It has been concluded that term limit laws fall within the "affairs" and "government" of a local municipality. As such, it is clear that term limit laws are "encompassed by the grant of authority to municipalities pursuant to the State Constitution and the Municipal Home Rule Law." Id. at 967. See also Spota v. County of Suffolk, 2012 Slip. Op. 32473(U); Hoerger v. Spota, 109 AD3d 564 (2nd Dept. 2013); McDonald v. New York City Campaign Finance Board, et al., 965 N.Y.S.2d 811 (Sup. Ct., New York County 2013).

Petitioner alleges that Respondent-Candidate is not eligible because of the Term Limit Law. Election Law §6-122(2) provides, inter alia, that a person shall not be designated or nominated for a public office who is "ineligible to be elected to such office or position." Inasmuch as neither party is challenging or questioning the constitutionality or validity of the Term Limit Law here, the determination turns to qualifications and eligibility.

"A statute must be construed according to the ordinary meaning of its words and resort to extrinsic matter, such as the legislative history, is inappropriate when the statutory language is unambiguous and the meaning unequivocal." In re Daniel C., 99 AD2d 35 (2nd Dept. 1984). While a Court cannot ignore the legislative intent of a statute, if a law is clear on its face, the text must control the Court's decision. Generally, in construing a statute, a court must ascertain and give effect to the intention of the Legislature and, where the language of the statute is clear and unambiguous, there is no reason to resort to interpretation. See Baker v. Kalil, 182 AD2d (3rd Dept. 1992). At the same time, the rules of statutory interpretation require a court to interpret in a constitutionally permissible manner and to effectuate the purpose, spirit, and object of the statute under scrutiny. See Martin v. Reuning, 194 Misc 2d 701, 701 (NY Sup. Ct., 2003).

Section 55-3 of the Term Limit Law provides that "no elective officer shall have more than two consecutive terms of four years in the same public office." It appears from the plain text of the statute that this provision aims to prevent an elected official from serving more than two terms in the same office. For example, this law would prevent Respondent-Candidate from [*5]running for a third term as Town Clerk, the office she currently holds. While the affirmations of the Town Attorneys clearly support this, most importantly, the statute itself controls the very issue that is the subject of this petition. Section 55-5 of the Term Limit Law states "nothing contained in this chapter shall prohibit an elective public officer from seeking, being elected to, or holding another and different elective public office in the Town of Amherst at the conclusion of a term of public office " The Term Limits Law makes no reference to any requirement suggested by Petitioner that Respondent-Candidate resign first before running or take a respite of two years before seeking another public office. Though sometimes statutes are vague, imprecise, and require the Court to search for their meaning, the Term Limits Law contains no such ambiguity. As such, this Court finds that the arguments advanced by the Petitioner have no merit and the Respondent-Candidate is eligible to run for the office she currently seeks.

It is clear from the plain and unambiguous language of the Term Limits Law that it has not and does not prohibit a sitting elected official from seeking a different town office from the one they currently hold. Instead, the Term Limits Law applies only to an individual who is term limited in their current office and does not prohibit that individual from seeking another office in the Town of Amherst. This Court finds nothing that prohibits a sitting town elected official from seeking a different office, even those facing term limits for their current post. To suggest any other type of construction not only flouts the clear meaning of the text of the statue, but ignores past practice. Consequently, the statute does not prohibit or preclude the Respondent-Candidate from seeking the office of Supervisor for the Town of Amherst.

Inasmuch as the Court has found that the Term Limits Law does not prohibit the candidacy of the Respondent-Candidate, she is eligible for the office of Town Supervisor and thus the argument that the matter is not ripe is moot. See generally Locke v. Walsh, 120 AD3d 997 (4th Dept. 2014); Weidman v. Starkweather, 80 NY2d 955 (1992). Additionally, because the Court has held the Term Limits Law inapplicable to the circumstances herein, the Court need not address the Respondent-Candidate's remaining contentions regarding the application of the Municipal Home Rule Law.

Accordingly, because the relief requested is inconsistent with the plain meaning and unambiguous language of the Term Limits Law, the Petition is hereby DENIED and DISMISSED with prejudice.

Dated: August 10, 2017

Hon. Emilio Colaiacovo, J.S.C.