Cohen v NYC Bd. of Elections

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Cohen v NYC Bd. of Elections 2003 NY Slip Op 30244(U) July 2, 2003 Supreme Court, Kings County Docket Number: 22806/03 Judge: Joseph S. Levine Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] At a Special Election Part I of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 2nd day of July, 2003 P R E S E N T: HON. JOSEPH S. LEVINE, Petitioners, - against - Index No. 22806/03 NYC BOARD OF ELECTIONS, ET AL., The folllowina paDers numbered 1 to 3 read on this motion: PaDers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 Opposing Affidavits (Affirmations) 2 Reply Aff rdavits (Affirmations) 3 Midavit (Affirmation) Other Pa3ers Upon the foregoing papers, petitioners move, by order to show cause, for various relief, the most significant of which is an order declaring respondent-candidate Noach Dear ineligible and unqualified to be elected or to serve in the public office of Member of the New York City Council from the 4 ' Council District for the term of office which commences 4h January i , 2004; and permanently enjoining Noach Dear and others from circulating [* 2] designating petitions on behalf of his candidacy. Respondent Dear, at oral argument and upon a subsequent written submission,seeks an adjournment of the matter. In the alternative, respondelit Dear urges the court to dismiss the petition. Respondent s application for an adjournment is denied. Of paramount consideration is the express provision of the Election Law that this is a summary proceeding. This is as it should be, because the time schedule expressly stated in the law is so short that no deliberately conducted or lengthy court proceedir ;gs are either contemplated or possible (see generally, Matter of Sinicropi, 135 NYS2d 77, afld 284 App Div 893). The court notes that despite having been served with the petition on Friday, June 27,2003, counsel for respondent Dear was well-prepared to advance his client s cause and submitted thorough and cogent responsive papers within hours of oral argument. TI e record reveals that respondent Dear intends to run for the office of City Council Member 5-0, the 44 h Council District of the City of New York. To this end, designating petitions n support of his candidacy in the September 9,2003 Democratic Primary Election are being circulated. Petitioners arLgue respondent Dear i s not eligible to be elected or that serve as i New York City Council Member for the two-year term commencing on January 1,2004, m d thus should not be permitted to continue to circulate petitions. This argument is advanced on the strength of a recent amendment to the New York City Charter s term limits law enacted by the New York City Council in 2002. 2 [* 3] Section 1 138 of the New York City Charter provides that a person that has previously served as a council member for two or more consecutive terms is not eligible to be elected or serve unless and until one full term or more has elapsed. Charter $25 (a), as amended by Local LaYx 27 of 2002, states that a single two-year term does not constitute a full tcim for purposes of fj 1138 of the Charter. The court notes that the validity of Local Law 27 of 2002 was recently upheld by the Second Department in Golden v New York City Council ( ), 2003 N Y App. Div. LEXIS 566 appeal denied 2003 NY Lexis 1364. Petitioners AD2d argue thar: since respondent Dear, who was elected to serve as a council member for two four-year terms commencing on January 1, 1994 and January 1, 1998, respectively, is not eligible tc I serve as a council member for the term commencing on January 1,2004, because only one two-year term has elapsed since he left office on December 31, 2001, and is therefore ineligible to circulate petitions. In response, respondent Dear argues that petitioners application is premature, in that the proper procedural vehicle in which to challenge his qualificatiodeligibility to serve in nfiice iq !twemed hy the procedures set forth in Electinn T . , w 6 16-10? in a proceeding challengi ig the designating petition of a potential candidate. It is well settled that a court sjurisdiction to intervene in election matters is limited to the po vers expressly conferred by statute (Matter of Scaringe v Ackerman, 119 AD2d 327,328, a f d . 68 NY2d 885, citing Matter of MansJield v Epstein, 5 NY2d 70,74; Matter Tie statute is applicable to terms commencing on or after January 1, 1994. 3 [* 4] o Lisa v 1:oardo Elections, 54 AD2d 746). While section 16-100 of the Election Law vests f f the Supreme Court with the broad power to determine any question of law or fact arising under article 16 of the Election Law, section 16-102(2) expressly provides that [a] proceedir:g with respect to a petition shall be instituted within 14 days after the last day to file petitikm . . . 99 Ncjtwithstanding petitioners contention that this application falls outside the procedurrs set forth in Election Law tj 16-102 because it is a challenge to respondent Dear s substantive qualifications for the office (Election Law tj 6-122) * and not the sufficiency of his desigi lating petition, the court finds that [ilrrespective of how [petitioners] frame their claim, thtir attempt to have [respondent s] name removed from the ballot constitutes a contest to the designation or nomination of a candidate for public office pursuant to Election Law tj 1(b-102 and a challenge to a ballot content pursuant to Election Law tj 16-104... (Matter o Olma v Dale, -AD2d f 3 2003 NY App. Div. LEXIS 6784; see Matter of Scaringe, 119 AD2d 327, a f d [for reasons set forth in Appellate Division] 68 NY2d 885). Election Law 16-122 provides: A person shall not be designated or nominated for a public office or party PO ition who (1) is not a citizen of the state of New York; (2) is ineligible to be elezted to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or sta ;utory qualifications thereof or, with respect to judicial office, who will not mc et such qualifications within thirty days of the commencement of the term of such office. 4 [* 5] In Matter o Scaringe, petitioner sought to prohibit the New York State Board of f Elections from placing respondent s name on the ballot for the public office of Member of the New York State Assembly, alleging that respondent was not qualified to hold the office on residciicy grounds pursuant to the New York State Constitution (art. 111, 0 7) and the Election Law (0 6-122). The court held that: Irrespective of the label given to the proceeding or the words used to describe the issue, the relief sought by petitioners seeks judicial intervention in the election process to remove a candidate from the ballot ...[and] clearly constitutes a challenge or contest to the designation or nomination of a candidate for public office. Since Election Law 0 16-102 (1) provides a remedy for the relief sought by petitioners, they cannot avoid the time requirement of the statute... B sed upon the foregoing, the court concludes that the within proceeding seeking a z declaratic I that respondent Dear is ineligible and unqualified to hold office as a council n member, and therefore cannot be a candidate pursuant to Election Law commenc ed in accordance with the requirements of Election Law 0 9 6-122, niust be 16-102 (Matter o f Scaringe, 1 19 AD2d at 329). As such, this proceeding is premature. Tf e court notes that, in any event, petitioners have failed to establish their entitlement to injunc live relief. It is well settled that injunctive relief is a drastic remedy and will only be grantcd if the movants establish a clear right to such relief under the law and the undisputcd facts found in the moving papers (see Anastasi v Majopon Realty Corp., 181 AD2d 706, 707). The movants must establish: (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that 5 [* 6] a balancir b of equities favors the movants position (see Grant Co., v Srogi, 52 NY2d 496, g 5 17). As to plaintiffs request for an injunction enjoining and restraining respondent Dear from coni inuing the circulation of petitions, the court finds that petitioners have failed to sufficientlydemonstrate essentialpredicates for such relief. While the court finds compelling petitioners argument that it appears that respondent Dear may indeed be ineligible to serve as a Mem tier of the New York City Council under the newly enacted amendment to the New York Ciq Charter, and the Golden case affirming the propriety of the enactment appears on its face to apply to respondent Dear, petitioners have not adequately alleged that they would be harmej by the continued circulation of designating petitions unimpeded by this court. Respondtmt Dear contends, and petitioners do not dispute, that there are some 36,000 registerec,Democrats in the 44 hCouncil District eligible to sign petitions, and that only 900 valid sign Litures are required for placement on the ballot. However, only three instances of signatoric s to respondent Dear s designating petitions were cited by petitioners. In any event, peitioner may renew their application before this court on the return date for all election r iatters on August 4,2003. Accordingly, the relief requested in the petition is denied in its entirety; respondent Dear s n-otion to dismiss is granted and the petition is dismissed without prejudice. F J S. C. 6

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