Tulin v Wade

[*1] Tulin v Wade 2006 NY Slip Op 51725(U) [13 Misc 3d 1207(A)] Decided on August 22, 2006 Supreme Court, Saratoga County Hummel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2006
Supreme Court, Saratoga County

Peter A. Tulin, Romeo J. Naples, Donald J. Brady, Sr. and Donna Krug as Objectors To the Certificate Purporting to Authorize a Candidate of the Democratic Party for the Public Office of State Senator for the 43rd Senatorial District Of the State of New York at the Primary Election to Be Held on September 12, 2006 And the General Election to Be Held on November 7, 2006, Petitioners/Objectors.

against

Thomas W. Wade and Susan Steele as the Purported Presiding Officer and Secretary of the Meeting Purporting to Authorize a Democratic Candidate for The Public Office of State Senator for The 43rd Senatorial District of the State Of New York at the Primary Election to Be Held on September 12, 2006 and the General Election to Be Held on November 7, 2007 And the Committee of the Democratic Party Purporting to Authorize a Democratic Candidate for the Public Office of State Senator for the 43rd Senatorial District of the State of New York at the Primary Election to Be Held on September 12, 2006 and the General Election to Be Held on November 7, 2006 and the Rensselaer County Democratic Committee, Respondents,



In the Matter of Brian D. Premo and Thomas W. Wade, Petitioners, against

against

Peter a Tulin, Rome J. Naples, Donald J. Brady, Sr., and Donna Krug, Objectors; Joseph Bruno as the Republican Nominee For New York State Senate 43rd District; Neil Kelleher, Douglas A. Kellner, Helena Moses Donohue and Evelyn J. Acquila as Commissioners of and Constituting the New York State Board of Elections, Respondents, For a Judgment Pursuant to Article 16 Of the New York State Election Law Ordering That a Determination of Respondent Board Made August 2, 2006 Determining That a Certificate of Authorization Authorizing Petitioner Premo to Be the Designee/nominee of The Democratic Party for the New York State Senate, 43rd District to Be Null And Void Be Overturned and That the Certificate Be Declared Valid and Proper.



2006-1739



PETER A. TULIN, ESQ.

125 High Rock Avenue

Saratoga Springs, New York12866

Attorney for Peter A. Tulin, Romeo J. Naples,

Donald J. Brady, Sr. and Donna Krug

THOMAS V. KENNEY, JR., ESQ.

65 Second Street

Troy, New York 12180

Attorney for Thomas W. Wade, Brian Premo

and Susan Steele

MICHAEL A. AVELLA, ESQ.

JOHN CIAMPOLI, ESQ.

23 Charles Boulevard

Delmar, New York 12054

Attorneys for Joseph L. Bruno

TODD D. VALENTINE, ESQ.

40 Steuben Street

Albany, New York 12207

Attorney for the New York State

Board of Elections

Christian F. Hummel, J.

Before the Court are two petitions brought under Election Law Article 16. These were consolidated on consent by Order dated August 17, 2006 (Hummel, AJSC). The proceeding entitled Tulin et al. v Wade et al., originally filed in Saratoga County, sought to prevent the acceptance by respondent New York State Board of Elections of a Certificate of Authorization which would allow respondent Brian D. Premo to appear on the ballot on November 7, 2006 as the Democratic candidate for State Senate in the 43rd Senatorial District.[FN1] The second proceeding, entitled Premo and Wade v Tulin, et al. was filed in Supreme Court, Rensselaer [*2]County. This latter proceeding seeks to challenge a determination made by respondent New York State Board of Elections on August 2, 2006 which held that the Certificate of Authorization purportedly allowing respondent Premo to run as a Democratic candidate was invalid.

This Court conducted an evidentiary hearing on August 17, 2006 in order to determine the disputed factual issues relevant to the instant petitions. At that hearing seven witnesses gave testimony: petitioner Brian Premo; William Reinhardt, Flora Fasoldt and Virginia O'Brien, members of the Rensselaer County Democratic Committee; Edward McDonough, Democratic Election Commissioner of Rensselaer County; petitioner Thomas Wade, co-Chair of the Rensselaer County Democratic Committee; and M. Lynne Mahoney, the other co-Chair of that Committee. Based upon the credible testimony adduced at the hearing, the various documentary exhibits admitted into evidence and the prior papers and proceedings in this case, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

In the spring of 2006 petitioner Brian Premo began actively seeking the Democratic nomination for New York State Senate in the 43rd Senatorial District, which encompasses all of Rensselaer County and approximately one-half of Saratoga County. Petitioner Premo was not formally enrolled as a member of the Democratic Party, however. As a result, he needed not only the party's nomination but also the formal authorization of the party leadership in order to run as the candidate of the Democratic Party.

On the evening of May 24, 2006 petitioner Premo appeared before the Saratoga County Democratic Committee to speak as a potential candidate. Present at that meeting was Larry Bulman, Chair of the Committee. Toward the end of the meeting, the Executive Committee took a vote and decided unanimously not to endorse petitioner Premo as their candidate.

On the evening of June 3, 2006 petitioner Premo appeared before the Rensselaer County Democratic Committee. That meeting was chaired by petitioner Wade, who had invited petitioner Premo to address the Committee. The Co-Chair of the Committee, M. Lynne Mahoney, was also present. Larry Bulman, the Saratoga County Democratic Chair, had not been given notice of the meeting and was not in attendance.

The meeting was called to order by petitioner Wade. A motion was made, seconded and passed on a voice vote to determine that a quorum of committee members was present, though no formal roll call was made and no numerical count of attendees was recorded. Petitioner Wade was then elected to preside over the meeting, and Susan Steele was chosen to act as secretary.

On the agenda for that evening was the designation of candidates for several offices, including delegates to the Judicial Nominating Convention, State Senator for the 43rd District and Assemblyman for the 108th Assembly District. Petitioner Premo was given the opportunity to address the Committee, as were the potential candidates for the Assembly seat. A formal motion was made and seconded to designate petitioner Premo as the candidate for the Senate seat. The vote was unanimous in favor of his candidacy, with no members abstaining. With regard to the question of the Assembly seat, after some debate it was determined that there was not a quorum of committee members for the Assembly District present, and so no designation of a candidate was made. This left the competing candidates for that position responsible for circulating their own nominating petitions.

At no time did the Chairs of the Saratoga and Rensselaer County Democratic Committees meet to decide the question of whether to authorize the candidacy of petitioner Premo as an individual not enrolled in the Democratic Party. Petitioner Wade determined that, since the number of enrolled Democratic voters in Rensselaer County exceeds that of the portion of Saratoga County [*3]situated in the 43rd Senatorial District, no such meeting would be necessary.

On July 14, 2006 petitioner Wade and Susan Steele signed a Certificate of Authorization under § 6-120 of the Election Law (Respondent's Exhibit A in Evidence). This certificate recites that petitioner Premo, a "candidate who is not enrolled in the Democratic Party," was authorized for designation and nomination at the June 3, 2006 meeting of the Rensselaer County Democratic Committee. This Certificate of Authorization was filed with the New York State Board of Elections on July 17, 2006. Co-chair Mahoney was not aware that this document had been executed, had taken no part in its execution and had not voted to approve it.

On July 19, 2006 Peter A. Tulin, Romeo J. Naples, Donald J. Brady, Sr. and Donna Krug filed general objections with the New York State Board of Elections pursuant to Election Law § 6-154. On July 24, 2006 these same individuals filed specifications to the objections with the Board. On August 2, 2006 the Board issued its determination that the authorization of petitioner Premo was invalid.

CONCLUSIONS OF LAW [FN2]Election Law § 6-120 (2) states:

Except as provided in subdivisions three and four of this section, no party designation or nomination shall be valid unless the person so designated or nominated shall be an enrolled member of the political party referred to in the certificate of designation or nomination at the time of filing of such certificate.

Thus, ab initio, petitioner Premo was not qualified to run as a Democratic candidate for the 43rd District Senate seat. Only by operation of Election Law § 6-120 (3) could this impediment to his candidacy be removed. That statutory provision states, in pertinent part:

The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, unless the rules of the party provide for another committee . . . may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party as provided in this section . . . (emphasis added).

The Party Rules of the New York State Democratic Committee (Respondent's Exhibit G in Evidence) provide, at Art 2 § 3 (a) (ii):

If a political subdivision consists of more than one county, then the district or party committee for such subdivision shall be composed of the Chair[s] of the County Committees of the various counties, or parts of counties, situated within the political subdivisions.

Under the clear language of these provisions, petitioner Premo's candidacy needed the authorization of the party committee representing the 43rd Senatorial District. That party committee consists of Thomas Wade, Lynne Mahoney and Larry Bulman as the Chairs of the County Committees of Rensselaer and Saratoga Counties. This committee needed to meet, a quorum needed to be present [*4]and a vote needed to be taken in order to authorize petitioner Premo as a candidate for State Senate.

The record of these proceedings shows that no meeting of this committee was ever scheduled; no notice of any meeting was ever given to the members of this committee; no meeting of this committee ever took place; and no vote of this committee was ever taken or recorded. Thus, the fundamental statutory prerequisite to petitioner Premo's authorization to be designated or nominated is lacking.

This case is factually and legally indistinguishable from Matter of Silano v Oxford (10 Ad3d 466 [3d Dept 2004], affirming 4 Misc 3d 1016[A] [Sup Ct, Albany Cty][Spargo, J.]). In that case, there was no formal meeting held of the party committee for the 42nd Senatorial District to authorize the candidacy of an individual who was not enrolled in the Democratic Party, even though two of the county chairs had come together informally to execute a Certificate of Authorization. The Appellate Division held that "[t]he failure to comply with [the] express statutory requirements [of Election Law § 6-120(3)] will result in the invalidation of the certificate of authorization and, consequently, the underlying candidacy" (10 AD3d at 467 [citations omitted]). In the instant case, there was no meeting of the party committee for the 43rd Senatorial District to authorize the candidacy of petitioner Premo. As a result, this Court finds that the respondent New York State Board of Elections acted appropriately in invalidating the Certificate of Authorization.

Petitioner Wade contends throughout his papers that a meeting of the three County Chairs would have been a futile exercise, as the votes taken the May 24th and June 3rd meetings of the County Committees had already demonstrated that Larry Bulman and his entire Saratoga County Democratic Committee had rejected petitioner Premo as a candidate, while petitioner Wade and his co-chair, Lynne Maloney, had cast their votes in petitioner Premo's favor at the meeting of the Rensselaer County Democratic Committee. Thus, petitioner Wade argues, the weighted vote of any quorum of the three chairs would have been in favor of authorizing Premo's candidacy and that, therefore, a formal meeting was unnecessary. This analysis is flawed, however, in light of the rationale of Silano v Oxford, supra. The stipulated facts in that case demonstrated that all four chairs of the various County Democratic Committees comprising the party committee for the 42nd Senatorial District favored authorizing the candidate in question. Nonetheless, despite the apparent fact that any meeting of that committee would have ratified the authorization of the candidate, the Appellate Division held that strict compliance with the statutory mandate was required.

The only contrary authority is a dictum in English v Wollner, (206 Misc 709 [Sup Ct Montgomery Cty 1954][Aulisi, J.]). That case held that the failure to have filed a Certificate of Authorization was fatal to the Republican candidate's ability to appear on the ballot of the Democratic Party in the election for the 38th Senatorial District in 1954. In passing, the Court opined that the agreement of the chairs of the two counties in question, expressed as it was in a telephone conversation, could have satisfied the statutory requirement of a meeting to authorize the candidacy. While there is a certain practical logic to the reasoning in English, the case has no authority as precedent. Not only are the comments regarding the informal telephone "meeting" irrelevant to the holding in the case, the decision emanates from a court of coordinate jurisdiction to this Court. On the other hand, the holding of Silano v Oxford, supra, is binding precedent from the Appellate Division in this Judicial Department. This Court's determination is thus mandated by the authority of Silano v Oxford.

Based upon the above analysis, it is hereby

ORDERED, ADJUDGED AND DECREED that the petition in the proceeding entitled Tulin et al. v Wade et al. is dismissed as moot; and it is further [*5]

ORDERED, ADJUDGED AND DECREED that the petition in the proceeding entitled Premo and Wade v Tulin et al. is dismissed.

DATED: AUGUST 22, 2006

ENTER,

CHRISTIAN F. HUMMEL

ACTING SUPREME COURT JUSTICE Footnotes

Footnote 1:This first petition was brought prior to the respondent Board's August 2, 2006 determination. Insofar as the petitioners in this proceeding have since received the relief they had sought from the respondent Board, their petition is now moot.

Footnote 2:As a threshold matter, this Court notes that respondents raise a jurisdictional objection predicated upon petitioners' failure to have named the 43rd District Democratic Committee and its members as necessary parties. This objection lacks merit, as it is the action of the respondent New York State Board of Elections, and not the action of the 43rd District Democratic Committee, that is challenged in the instant petition.