Matter of Keane v Clark
Annotate this CaseDecided on August 15, 2007
Supreme Court, Erie County
In the Matter of the Application of James P. Keane, Aggrieved Candidate, Kurt J. Heffle, Objector; Independence Party Member, Ford Beckwith, Objector, Independence Party Member, Louis P. Corrigan, Objector, Independence Party Member, Petitioners,
against
Paul T. Clark, Candidate, and Dennis E. Ward and Ralph M. Mohr, Commissioners of Elections, Constituting the Erie County Board of Elections, Respondents.
2007-7550
Gary J. Wojtan, Esq.
Attorney for Petitioner, Keane
2956 Union Road
Buffalo, NY 14227
Joseph A. Ables, Jr., Esq.
Attorney for Petitioner, Keane
37 Franklin Street, Suite 1110
Buffalo, NY 14202
Timothy R. LoVallo, Esq.
Attorney for Petitioners Heffle, Beckwith and Corrigan
295 Main Street, Suite 1088
Buffalo, NY 14203-2478
Matthew P. Pynn, Esq.
Attorney for Respondent Clark
272 East Avenue Lockport, NY 14094
Laurence K. Rubin, Erie County Attorney
James L. Tuppen, Assistant Erie County Attorney
Attorneys for Respondents Ward, Mohr and Erie County Board of Elections
69 Delaware Avenue, Suite 300
Buffalo, NY 14202
Joseph G. Makowski, J.
Petitioner, James P. Keane (hereinafter referred to as "Keane"), is the designated candidate of the Erie County Democratic Committee for Erie County Executive. Keane maintains that he is an aggrieved candidate under Election Law § 16-102(1). Petitioners, Kurt J. Heffle, Ford Beckwith and Louis P. Corrigan (hereinafter referred to as "Heffle," "Beckwith," and "Corrigan" respectively), are members of the Erie County Independence Party (hereinafter referred to as the "Independence Party") and have filed general and specific objections to two (2) of the Certificates of Authorizations at issue in this special proceeding; to wit: March 25, 2007 and July 23, 2007. At certain times relevant hereto, Petitioner, Corrigan, was the Secretary of the Independence Party.
Respondent, Clark, is a candidate in the Democratic primary for Erie County Executive. Respondent, Clark, has been designated by the Independence Party as its nominee for Erie County Executive. Respondents, Dennis E. Ward (hereinafter referred to as "Ward") and Ralph M. Mohr (hereinafter referred to as "Mohr") are Commissioners of Elections of the Erie County Board of Elections (hereinafter referred to as the "Board"). Respondents, Ward and Mohr, as Board Commissioners, are charged with passing on the sufficiency of Respondent, Clark's, designating Petitions and the three (3) Certificates of Authorization issued by the Independence Party which were filed with the Board on March 26, 2007, April 3, 2007, and July 23, 2007 designating Clark as the Independence Party candidate for Erie County Executive.
The Record Before the Court
The record before the Court consists of the following filings:
Papers
1.Petitioners' Order to Show Cause granted August 2, 2007, including the Petition dated August 2, 2007 and Exhibits A through J annexed thereto.
2.The Notice of Motion filed by Respondent, Clark, on August 6, 2007 for an Order dismissing the special proceeding pursuant to CPLR § 3211(5).
3.Petitioners' Memorandum of Law In Opposition to Respondents' Motion to [*2]Dismiss.
4.Respondent, Clark's, Answer to the Petition dated August 9, 2007.
5.Petitioner, Corrigan's, Affidavit dated August 10, 2007.
6.Petitioner, Beckwith's, Affidavit dated August 10, 2007.
7.Petitioners' Reply to Respondent, Clark's, Answer dated August 10, 2007.
8.Petitioners' Memorandum of Law filed with the Court on August 11, 2007 and August 13, 2007.
Court Exhibits
9.Court Exhibits 1 through 11, comprising documents offered by Petitioners' counsel and/or counsel for the Erie County Board of Elections on the August 7, 2007 return date of Petitioners' Order to Show Cause.
Court Exhibit 1Affidavit of Service on August 2, 2007 of Respondent Keane.
Court Exhibit 2Affidavit of Mailing on Respondent Clark.
Court Exhibit 3Affidavit of Service on Respondent County of Erie.
Court ExhibitsGeneral and Specific Objections to Acceptance of
4 and 4ANomination and Acceptance filed with Erie County
Board of Elections via mail postmarked July 26, 2007
and filed with the Board on July 30, 2007.
Court Exhibit 5Certified Mail Receipt upon Thomas N. Clabeaux,
Presiding Officer, Independence Party meeting of March 25, 2007.
Court Exhibit 6Certified Mail Receipt upon Paul T. Clark postmarked
July 26, 2007.
Court Exhibit 7Certified Mail Receipt upon Judith A. Orsini postmarked
July 26, 2007, Meeting Secretary, Executive Committee of
the Independence Party on March 25, 2007.
Court Exhibit 8Corrected Certificate of Authorization of Executive
Committee of the Erie County Independence Committee
dated July 23, 2007 filed with Respondent Erie County
Board of Elections on July 25, 2007.
Court Exhibit 9Certificate of Acceptance of Respondent Clark dated
July 23, 2007, together with mailing envelope postmarked
July 23, 2007 filed by Erie County Board of Elections on
July 25, 2007.
Court Exhibit 10Notice of Determination of Board of Elections, County of
Erie, State of New York, dated April 5, 2007, Qualified
March 25, 2007 Certificate of Authorization and [*3]
designating Paul T. Clark as candidate of the Erie County
Independence Committee for Erie County Executive.
Court Exhibit 11Notice of Determination of Board of Elections, County of
Erie, State of New York, dated August 3, 2007, including
findings issued in connection therewith.
Background
Petitioners seek an Order pursuant to Article 78 of the Civil Practice Law and Rules and New York Elections Law § 6-120(3) seeking to invalidate and declare null and void as legally insufficient three (3) separate Certificates of Authorization issued by the Independence Party designating Respondent, Clark, as its nominee for Erie County Executive.
Petitioners maintain that three (3) separate Certificates of Authorization issued by the Independence Party on March 25, 2007, April 2, 2007, and July 23, 2007, which were filed with the Erie County Board of Elections are null and void and legally insufficient under Elections Law § 6-120(3). Of the three (3) Certificates of Authorization, only two (2) (those of March 25, 2007 and July 23, 2007) were accepted by Respondent, Clark, and filed with the Erie County Board of Elections.
Petitioners base their claim on two (2) separate contentions. Initially, Petitioners contend that at the biennial meeting of the Independence Party held on October 9, 2006, a quorum of members was not present as required under the rules of the Independence Party. Petitioners advance the argument that in the absence of a quorum of members, there was no valid biennial election; therefore, members could not select an Executive Committee to designate candidates for public office, including Respondent, Clark. Petitioners' second contention concerns the legal sufficiency under Election Law § 6-120(3) of the three (3) certificates of authorization issued by the Independence Party designating Respondent, Clark, as its nominee for Erie County Executive.
Respondent, Clark, maintains he has been properly designated by the Independence Party as its nominee for Erie County Executive. Respondent, Clark, maintains that Petitioners' claims are either time barred, procedurally defective and/or without merit. Respondents, Ward and Mohr, while appearing in the proceeding have not interposed an Answer. Respondents, Ward and Mohr, stand on their Determinations of April 5, 2007 and August 3, 2007. Court Exhibits 10 and 11.
Statement of Facts
On September 29, 2006, the Hon. Frederick J. Marshall, J.S.C., upon Stipulation, entered an Order in the proceeding of Erie County Independence Party, et. al. v. Louis P. Corrigan, Secretary of the Erie County Independence Party, designed to resolve procedural issues for the Independence Party to conduct its biennial meeting. Petitioners' Order to Show Cause, Exhibit A. Consistent with the terms of the September 29, 2006 Order of Justice Marshall, the Erie [*4]County Independence Party conducted its biennial meeting on October 9, 2006.
As part of the claims in this special proceeding, Petitioners contend a quorum of members of the Independence Party was not present at the October 9, 2006 biennial meeting. See Corrigan Affidavit of August 10, 2007. In this special proceeding, Petitioners contend that in the absence of quorum of members at the October 9, 2006 meeting, the Independence Party was not legally constituted; thereby negating the appointment of the members of Executive Committee under Party rules. See Petition, paragraphs 21 and 22.
Petitioners further maintain that in the absence of a meeting quorum on October 9, 2006, subsequent actions of the Independence Party, including the appointment of the Executive Committee and designation of Respondent, Clark, as its candidate for Erie County Executive, are null and void. Petitioners' allegations are contained in paragraph 22 of the Petition, which recites: As a consequence of the foregoing, there are no validly or duly elected officers of the Independence Party, and there is no interim committee established by the New York State Independence Party pursuant to the Rules of the Erie County Independence Party and the New York State Independence Party. Inasmuch, there are no officers who can validly execute and file a certificate of authority for non-party members to be a candidate for public office for the Independence Party.
Independent of Petitioners' claims in this special proceeding, no previous legal challenge has been raised to the sufficiency of the quorum at the October 9, 2006 biennial meeting of the Independence Party. Similarly, no previous legal challenge has been raised to any actions taken by either the Executive Committee or the Independence Party to endorse or designate candidates for the 2007 primary elections.
Petitioners have not named the Independence Party, its Executive Committee, the Presiding Officer and Secretary at the March 25, 2007 Executive Committee meeting, nor the New York State Independence Party as Respondents in this special proceeding.
In substance, Petitioners' second contention is that the three separate (3) Certificates of Authorization filed by the Independence Party designating Respondent, Clark, as its nominee for Erie County Executive are fatally defective and null and void for the reasons described below.
The March 25, 2007 Certificate of Authorization
On March 25, 2007, at a special meeting of the Executive Committee of the Independence Party, Respondent, Clark, (an enrolled democrat) was designated for Erie County Executive in the primary election to be held on September 11, 2007 and general election to be held on November 6, 2007. See Order to Show Cause, Exhibit B. In designating Respondent, Clark, the Independence Party on March 26, 2007 filed a Certificate of Authorization with the Erie County Board of Elections. Election Law § 6-120(3).
On page 1 of the March 25, 2007 Certificate of Authorization, Thomas N. Clabeaux is certified as the Presiding Officer of the meeting and Judith A. Orsini as the Secretary. However, on page 2 of the March 25, 2007 Certificate of Authorization, Thomas N. Clabeaux and Judith A. Orsini acknowledge under oath that Thomas N. Orsini was the Presiding Officer at the
[*5]
meeting. On March 26, 2007, Respondent, Clark, executed an Acceptance to the Certificate of Authorization. This Certificate of Acceptance was filed with the Board on March 26, 2007.
On March 28, 2007, Respondent, Beckwith, filed special objections with the Board in connection with the March 25, 2007 Certificate of Authorization. Order to Show Cause, Exhibit D. On March 29, 2007, Respondent, Corrigan, filed general and special objections with the Board to the March 25, 2007 Certificate of Authorization. Order to Show Cause, Exhibit E.
The April 2, 2007 Corrected Certificate of Authorization
In apparent response to the objections of Petitioners Beckwith and Corrigan, the Independence Party prepared a Corrected Certificate of Authorization dated April 2, 2007 concerning the Clark designation. The April 2, 2007 Corrected Certificate of Authorization was filed with the Board on April 3, 2007. See Petitioners' Order to Show Cause, Exhibit F. The Corrected Certificate of Authorization filed by the Independence Party with the Board on April 3, 2007 corrects the inconsistency contained in the March 25, 2007 Certificate of Authorization with respect to the identification of the Presiding Officer at the March 25, 2007 special meeting. The April 2, 2007 Corrected Certificate of Authorization identifies Thomas N. Clabeaux as the Presiding Officer instead of Thomas N. Orsini. No Certificate of Acceptance was filed by Respondent, Clark, with the Board in connection with the April 2, 2007 Corrected Certificate of Authorization filed by the Independence Party on April 3, 2007.
No objections were filed by any Petitioner in connection with the April 2, 2007 Corrected Certificate of Authorization filed with the Board on April 3, 2007.
The Board Determination of April 5, 2007
On April 5, 2007, Respondents, Ward and Mohr, issued a Notice of Determination on behalf of the Board. Court Exhibit 10. The Notice of Determination references the date objections filed:
Date Objections Filed:3/28/07 - BOE
3/29/07 - P Clark
Respondents, Ward and Mohr, issued a Determination that the Certificate of Authorization was qualified. In the April 5, 2007 Notice of Determination, Respondents, Ward and Mohr, do not reference the April 2, 2007 Corrected Certificate of Authorization filed with the Board on April 3, 2007. In light of the reference to the date objections were filed, the Court finds that Respondents, Ward and Mohr, were issuing the Determination with respect to the March 25, 2007 Certificates of Authorization and Acceptance.
The July 23, 2007 Corrected Certificate of Authorization
On July 23, 2007, the Independence Party filed a Corrected Certificate of Authorization in connection with the Clark candidacy. The July 23, 2007 Corrected Certificate of Authorization was filed with the Board by mail postmarked dated July 23, 2007 and received and time stamped by the Board on July 25, 2007. Order to Show Cause, Exhibit G.
On July 23, 2007, Respondent, Clark, filed a Certificate of Acceptance to the July 23, 2007 Corrected Certificate of Authorization. Respondent, Clark, filed the July 23, 2007 [*6]Certificate of Acceptance by mail to the Board postmarked July 23, 2007. Respondent, Clark's, Certificate of Acceptance was time stamped received by the Board on July 25, 2007. Order to Show Cause, Exhibits 8 and 9. In examining the July 23, 2007 Corrected Certificate of Authorization, the Court expressly notes the failure of the certificate to state the candidate's name, the public office, and the candidate's address. The July 23, 2007 Corrected Certificate of Authorization fails to designate or nominate a candidate for the public office of Erie County Executive. Election Law § 6-120(3).
On July 26, 2007, Petitioner, Heffle, filed specific and general objections to the July 23, 2007 Certificate of Authorization and Acceptance. See Order to Show Cause, Exhibit I and Court Exhibits 4 and 4A. In Petitioner, Heffle's, objections, he recites:
It is hereby specified as grounds for said objection that: no valid certificate of authorization has been filed by the Independence Party, permitting Paul T. Clark to seek designation of nomination for any public office by the Independence Party. Absence of authorization, the acceptance form submitted by candidate Clark is null and void, as is any Independence Party petition filed on his behalf.
The Board Determination of August 3, 2007
On August 3, 2007, Respondents Ward and Mohr, issued a Notice of Determination on behalf of the Board. Court Exhibit 11. The Notice of Determination notes a date of hearing of August 1, 2007. In the Notice of Determination, Respondents, Ward and Mohr, issue the following findings:
Findings of Other Objections Raised: Candidate's petition is qualified based upon Board ruling of April 5, 2007 qualifying authorization and acceptance. Therefore the Board determines the second Authorization and second Acceptance filed with respect to this candidacy to be superfluous.
The Board Determination of August 3, 2007 confirms that the Board ruling of April 5, 2007 which qualified the March 26, 2007 Certificates of Authorization and Acceptance. The Findings fail to expressly address the Corrected Certificate of Authorization filed with the Board on April 3, 2007 to which no Certificate of Acceptance was filed by Respondent, Clark. Respondents', Ward and Mohr, reference to the second Authorization and second Acceptance (there was no acceptance to the April 3, 2007 Certificate of Authorization) addresses the July 23, 2007 Corrected Certificates of Authorization and Acceptance which they determined to be "superfluous."
The 2007 Political Calendar
Due to its relevance, the Court hereby takes judicial notice of the 2007 political calendar published by the New York State Board of Elections on May 30, 2007. In relevant part, page 2 of the 2007 political calendar recites:
BECOMING A CANDIDATE
PARTY DESIGNATIONS
[*7]
. . .
DESIGNATING PETITIONSSecs. 6-132 & 6-134
June 12First day for signing designating petitions.
Sec. 6-134(4)
July 16 -Dates for filing designating petitions.
July 19Sec. 6-158(1)
July 23Last day to authorize designations.
Sec. 6-120(3)
July 23Last day to accept or decline a designation.
Sec. 6-158(2)
. . .
Statute of Limitations
Petitioners' Proceeding is Not Time Barred
This special proceeding was initiated by Order to Show Cause executed by the Court on August 2, 2007. Petitioners filed the action with the Erie County Clerk late afternoon on August 2, 2007. Respondent, Clark, was served on August 2, 2007 by service of a copy of the Order to Show Cause and Petition upon his wife with mailing thereof. See Court Exhibits 1 and 2. The Court deems such service satisfactory. May v. Daly, et.al., 254 AD2d 688, 678 NYS2d 415 (4th Dept. 1998). Petitioners served Respondents, Ward and Mohr, on August 3, 2007. CourtExhibit 3. On August 7 and 13, 2007, the Court heard oral argument on Respondent, Clark's, Motion to Dismiss pursuant to CPLR § 3211(a)(5). As reflected in his motion papers, the substance of Respondent, Clark's, motion is that Petitioners' proceeding is governed by the fourteen (14) day statute. Election Law § 16-102(2) Respondent, Clark, advances the argument that the statute commenced on July 19, 2007, the last day to file petitions, and Petitioners' failure to serve Respondents, Ward and Mohr, until August 3, 2007 rendered the Petition time barred. Ehle v. Wallace, et. al., 195 AD2d 1086, 602 NYS2d 563 (4th Dept. 1993); Stampf v. Hill, et. al., 218 AD2d 919; 630 NYS2d 813 (3rd Dept. 1995).
In opposition to Respondents' Motion, Petitioners maintain that the action was commenced on August 2, 2007 and service upon the Board on August 3, 2007 was properly effectuated. Harris v. Niagara Falls Board of Education, et.al., 6 NY3d 155, 844 NE2d 753, 811 NYS2d 299 (2006). At oral argument, the Court noted the saving provision recited in CPLR § 306(b) was inapplicable to election law cases.
Since Respondent, Clark, was served on August 2, 2007, he filed the Motion to Dismiss on behalf of the Erie County Board of Elections. The Board has not interposed an Answer. On the record, the Board neither joined or opposed the Clark Motion to Dismiss. Since Petitioners have not objected to the standing of Respondent, Clark, to bring the Motion to Dismiss, the Court addresses it on the merits.
At oral argument on August 7, 2007, the Court initially rejected both Petitioners' and [*8]Respondents' arguments and, pursuant to Pierce v. Breen, et.al., 86 NY2d 455, 634 NYS2d 21 (1995), held that Petitioners' proceeding was governed by the ten (10) day provision defined in Election Law § 16-102(2) which recites:
§ 16-102. Proceedings as to designations and nominations, primary elects, etc.
. . .
2. A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later; except that a proceeding with respect to a petition for a village election or an independent nomination for a special election shall be instituted within seven days after the last day to file the petition for such village election or independent nomination or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later. A proceeding with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within ten days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee.
See O'Brien v. Seneca County Board of Elections, et.al., 22 AD3d 1036, 803 NYS2d 830 (4th Dept. 2005).
In selecting the ten (10) day limitation period, the Court viewed the term "certificate of nomination" as synonymous to "certificate of authorization" for limitation purposes. The Court is compelled to abandon its initial determination and holds that the fourteen (14) day limitation period set forth in Election Law § 16-102(2) governs this proceeding. Stampf v. Hill, et. al., 218 AD2d 919; 630 NYS2d 813 (3rd Dept. 1995); Naples, et. al. v. Swiatek, et. al., 286 AD2d 567 (4th Dept. 2001). However, for the reasons recited below, the Court determines this proceeding is not time barred because the fourteen (14) day limitation period did not commence on July 19, 2007, but on July 23, 2007 when the July 23, 2007 Corrected Certificates of Authorization and Acceptance were filed by the Independence Party with the Erie County Board of Elections. Election Law §§ 1-104, 6-120(3), 6-154(2). Pierce v. Breen, et.al., supra .
Analysis
On the record before the Court, Petitioners have made no specific challenge to the designating petitions filed by Respondent, Clark. Instead, the focus of Petitioners' challenges is to the authority of the Executive Committee of the Independence Party to nominate Respondent, Clark, and to the legal sufficiency of the three (3) Certificates of Authorization and two (2) Certificates of Acceptance thereof.
In addressing the statute of limitations argument, the Court focuses its attention on the fact that on July 23, 2007, the Independence Party, within the statutory window period prescribed in Election Law § 6-120(3), filed a Corrected Certificate of Authorization with the Board which was Accepted by Respondent Clark. Election Law § 6-158(2). The July 23, 2007 Corrected Certificates of Authorization and Acceptance were mailed to the Board on that day and received and time stamped by the Board on July 25, 2007. See Court Exhibits 8 and 9.
On July 26, 2007, Petitioner, Heffle, filed general and specific objections with the Board. See Court Exhibit 4. The Court determines Petitioner, Heffle's, general and specific objections [*9]were timely filed within the statutory period prescribed in Election Law § 6-154(2). Petitioner, Keane, maintaining standing as an aggrieved candidate, asserts no obligation to file general and specific objections. Magee v. Camp, et. al., 253 AD2d 573, 677 NYS2d 192 (3rd Dept. 1998).
In relevant part, Election Law § 6-154(2) provides:
§ 6-154. Nominations and designations; objections to
...
2. Written objections to ... a certificate of authorization, ... may be filed by any voter registered to vote for such public office and to a designating petition or a petition for opportunity to ballot for party position or a certificate of substitution, a certificate of acceptance ... by any voter enrolled to vote for such party position. Such objections shall be filed with the officer or board with whom the original petition or certificate is filed within three days after the filing of the petition or certificate to which objection is made, or within three days after the last day to file such a certificate, if no such certificate is filed ... When an objection is filed, specifications of the grounds of the objections shall be filed within six days thereafter with the same officer or board and if specifications are not timely filed, the objection shall be null and void. (Italics added.)
Election Law § 6-154(2) does not require two (2) separate filings both of general objections and specific objections as long as the offered objection sufficiently set forth the basis for the objection. Van Stockum v. Castine, 218 AD2d 915, 630 NYS2d 811 (3rd Dept. 1995).
In Pierce v. Breen, et. al., 86 NY2d 455, 634 NYS2d 21 (1995), the Court of Appeals addressed a statute of limitations argument that petitioners objections on September 22, 1995 to a certificate of nomination filed with the Schoharie County board of elections on August 11, 1995 was time barred. In Pierce, the Court of Appeals stated:
Breen argues that pursuant to Election Law § 6-154 (2), objections to any certificate of nomination must be filed within three days filing and a proceeding must be commenced within the time limits provided under Election Law § 16-102 (2), i.e., within 10 days after the filing of the certificate, and therefore petitioner's challenge, commenced six weeks from the date of filing, renders this proceeding untimely. ... Petitioner counters that the objections and petition were timely filed; that this is not the type of case the Election Law Reform Act of 1992 (L 1992, ch 79, § 33) was designed to avoid; that this is a timetable case and failure to adhere to the statutorily prescribed window mandates granting the petition, invalidation of the nomination certificate and an affirmance herein. We agree. Election Law § 6-154(2) provides that objections shall be filed ... within three days after the filing of the ... certificate to which objection is made, or within three days after the last day to file of such a certificate, if no such certificate is filed ."Here, the filing of the objections occurred on September 22, 1995, three days after the last day to file the certificate of nomination, and we find they were properly taken and this action was timely commenced.
The Court of Appeals' analysis in Pierce, governs the issue of commencement of the fourteen (14) day limitation period. The Court is of the view, in light of Pierce, that pursuant to Election Law § 16-154(2), the operative date of the event at issue (i.e., the of filing of the July 23, 2007 Corrected Certificates) to which objections are filed, governs commencement of the Election Law § 16-102(2) limitations period. Petitioner, Heffle's, objections were filed via mail [*10]on July 26, 2007, so the proceeding was timely commenced within the fourteen (14) day limitation period of Election Law § 16-102(2).
In Naples, et. al. v. Swiatek, et. al, 286 AD2d 567 (4th Dept. 2001), the Court determined the fourteen (14) day period set forth in Elections Law § 16-102 governed proceedings with respect to the validity of a nominating petition where there was a claim of alleged lack of valid signatures on the designated petition.
In Stampf v. Hill, et.al., 218 AD2d 919, 630 NYS2d 813 (3rd Dept. 1995), the Court applied the fourteen (14) day limitation period set forth in Election Law § 16-102(2) in a challenge to a candidate's designating petitions and certificate of authorization which were both filed on July 13, 1995. The court stated:
In our view, the provision of Election Law § 16-102 [***3] upon which Supreme Court relied applies only where a meeting of a party committee results in the nomination of a candidate. Here, Trotta could only be nominated at a primary election (Election Law §§ 6-110, 6-118) and the only document emanating from the subject committee meeting was a certificate of authorization. We note that the Election Law does not equate a certificate of nomination with a certificate of authorization and does not use the terms interchangeably (see, Election Law§§ 6-156, 6-158 [13]). Thus, since a certificate of authorization is an integral part of a valid designating petition (see, Matter of Plunkett v Mahoney, 76 NY2d 848, modfg on dissenting mem below 164 AD2d 976; Matter of Hanofee v Board of Elections, 16 NY2d 885; Matter of Van Stockum v Castine, 218 AD2d 915 [decided herewith]), we find that the 14-day Statute of Limitations applies and the dismissal of this proceeding was in error.
Stampf holds that the certificate of authorization is an integral part of a valid designating petition. Pursuant to Election Law § 6-120(3), a certificate of authorization must be filed within four (4) days of the last day to file the designating petition. The Court is of the view that Stampf establishes the construct of an additional four (4) day window period for limitations purposes to commence a proceeding under Election Law § 16-102(2). See Election Law § 6-154(2).
While Stampf holds that the fourteen (14) day limitation period governs a challenge to a petition and certificate of authorization filed on the same date, the case is factually and analytically distinguishable. Initially, the Court notes in this proceeding there is no challenge to the legal sufficiency of Respondent, Clark's, designating petitions. Election Law § 6-134. In this proceeding, Respondent, Clark's, Petition was filed on or before July 19, 2007, but his Corrected Certificates of Authorization and Acceptance were mailed to the Erie County Board of Elections on July 23, 2007 and accepted for filing on July 25, 2007. See Election Law §§ 1-106; 6-120(3); 6-154(2); 6-158(2).
While Stampf stands for the proposition that the fourteen (14) day limitation period set forth in § 16-102(1) governs a proceeding challenging a petition and certificate of authorization filed on the same date, its construct and holding supports but does not address the issue raised by the facts of this case as to whether the Statute of Limitations commences on the last day to file petitions (i.e., July 19, 2007) or July 23, 2007, the date when the Certificates of Authorization and Acceptance were actually filed. Election Law §§ 6-120(3) and 6-158(2). The issue appears to be one of first impression requiring construction of Election Law § 16-102(2).
Principles of Statutory Construction
McKinney's Statutes § 315 states that a short statute of limitations is penal in nature and should receive a strict construction. [*11]
McKinney's Statutes § 315 further provides:
Such statutes should not be applied to cases not clearly
within their provisions, and they are not to
be extended by construction.
McKinney's Statute § 59 further states that statutes of limitation will not be given retroactive effect unless the legislative intent is clearly shown:
It follows that statute of limitations ordinarily
are to be given prospective construction and
application. Id. at 129.
Given the fourteen (14) day time period of Election Law § 16-102(2), the Court construes the statute as penal in nature and subject to the rule of strict construction. While Election Law§ 16-102(2) governs this proceeding, construction and application which commences the statute on July 19, 2007 when the subject certificates were filed on July 23, 2007 would effectively constitute retroactive construction and application of the statute. The statute must be given prospective construction and application and be deemed to commence on July 23, 2007.
The Court determines the fourteen (14) day limitation period set forth in Election Law§ 16-102(2) governs this proceeding, but the statute did not commence on July 19, 2007, the last day to file petitions, but instead on July 23, 2007, the date the Corrected Certificates of Authorization and Acceptance were filed with the Erie County Board of Elections. Election Law §§ 1-104, 6-120(3), 6-154(2), 6-158(2). Pierce v. Breen, supra . at 455.
In the Court's view, no other reasonable statutory interpretation is possible unless it is determined that the fourteen (14) day Statute of Limitation period began to run on July 19, 2007, four (4) days prior to the execution and filing of the July 23, 2007 Corrected Certificates of Authorization and Acceptance with the Board. McKinney's Statutes §§ 59 and 315.
For statute of limitation purposes, this Court determines a statutory distinction exists between a petition challenge under Election Law §§ 6-134 and a challenge to a certificate of authorization and acceptance which may effect the ability of a designee to become a candidate for public office. See Election Law §§ 6-118, 6-120(3), 6-154(2), and 6-158(2).
In Quinn v. Power, et.al., 28 AD2d 687, 281 NYS2d 379, (2nd Dept. 1967) aff'd 20 NY2d 682, 282 NYS2d 550 (1967) the Court noted that a nominee receiving a Wilson-Pakula authorization needs a proper designating petition, certificate of authorization and certificate of acceptance to become a designated candidate for public office. Each of these documents are legally distinct and have separate statutory purposes and effect. To avoid these statutory distinctions in construing the statute would create a legal fiction which ignores the statutory provisions of Election Law §§ 6-120(2)(3), 6-154(2), and 6-158(2).
This special proceeding was commenced and service effectuated within fourteen (14) days of July 23, 2007. This special proceeding is not time barred.
Petitioners' Non-Joinder of the Independence Party
Petitioners make two (2) distinct claims in this special proceeding. Initially, Petitioners maintain that due to an absence of a quorum of members at the biennial meeting of the [*12]Independence Party, on October 9, 2006, there was no valid election. Therefore, Petitioners maintain the Executive Committee was improperly constituted and could not nominate Respondent, Clark. The objections interposed by Petitioners, Beckwith and Corrigan, with respect to the March 25, 2007 Certificates of Authorization and Acceptance are specifically limited to challenges arising out of the alleged deficiencies at its biennial meeting. Petitioners' Order to Show Cause, Exhibits D and E. This aspect of Petitioners' claim raise challenges to the biennial meeting and the internal workings of the Independence Party and the authority of the Executive Committee to issue a certificate of authorization on March 25, 2007.Koppell v. Garcia, et.al., 275 AD2d 587, 712 NYS2d 697 (3rd Dept. 2000); Gross v. Hoblock, et. al., 6 AD3d 933, 775 NYS2d 421 (3rd Dept. 2004).
Petitioners, Keane and Heffle, challenge the validity of actions of the Executive Committee on March 25, 2007 and its subsequent issuance of Corrected Certificates of Authorization on April 2, 2007 and July 25, 2007. Petitioners, Keane and Corrigan, object to the legal sufficiency of said Certificates of Authorization and Acceptance. Election Law§§ 6-120(3); 6-154(2).
Petitioners have not named the Erie County Independence Party, the New York State Independence Party, the Executive Committee of the Independence Party of Erie County, Thomas N. Clabeaux or Judith A. Orsini as respondents in this proceeding. While the issue of non-joinder affecting a party has historically resulted in dismissal of the petition without prejudice, recent Court of Appeals cases have resulted in the need for a more refined judicial analysis as to whether the proceeding need be dismissed for non-joinder of a person who ought to be a party. See Civil Practice Law and Rules §§ 1001(a)(b); 1003; Saratoga County Chamber of Commerce, Inc., et. al. v. Pataki, et.al., 100 NY2d 801, 766 NYS2d 654 (2003); In the Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Board of Standards and Appeals, et.al., 5 NY3d 452, 805 NYS2d 525 (2005); In the Matter of Michael P. O'Brien v. Seneca County Board of Elections, et.al., 22 AD3rd 1036, 803 NYS2d 830 (4th Dept. 2005).In Red Hook, supra at 801, 819, the Court of Appeals allowed an action to proceed concerning the authority of then Governor Mario Cuomo to enter into agreements with Indian tribes to permit gaming casinos on Indian reservations absent jurisdiction of the Indian Nation. Utilizing the five (5) factor provisions of CPLR § 1001(b), the Court determined the matter could proceed absent the Tribe. In Red Hook, supra . at 452, the Court of Appeals emphasized the need for a court, in an absence of a party to seriously evaluate statutory options available under CPLR § 1001(a) and (b) prior to making a determination as to whether to dismiss an action. Red Hook emphasizes the broad discretion of the Court in issuing its determination.
In reviewing the five (5) statutory factors recited in CPLR § 1001(b), the Court is of the view that:
1.The Court cannot properly adjudicate resolution of Petitioners' contentions with respect to alleged deficiencies in the biennial meeting and subsequent actions of the Executive Committee absent joinder of the Chairman of the Erie County Independence Party and New York State Independence Party. In reaching this determination, Petitioners' have an effective remedy in this proceeding in terms of judicial review of the legal sufficiency of the Certificates of Authorization and Acceptance.
2.Prejudice will occur to the Erie County Independence Party and the New York State Independence Party should the court proceed in their absence.
3.The prejudice to the Erie County Independence Party and New York State [*13]Independence Party could have been avoided by Petitioners' joining them in this proceeding.
4.The Court determines it is not feasible to issue a protective provision in any order issued by the Court in connection with this issue.
5.The Court determines that with respect to Petitioners' claims concerning the lack of quorum at a biennial meeting, and related issues, an effective judgment may not be rendered in the absence of representatives of the Erie County Independence Party, and New York State Independence Party.
Petitioners, Beckwith and Corrigan, have raised substantial questions whether a quorum of members of the Independence Party was present on the evening of October 9, 2006 at the Party biennial meeting. See August 10, 2007 Affidavit of Louis P. Corrigan and Affidavit of Ford Beckwith.
The Court notes that Petitioner, Corrigan, was Secretary of the biennial meeting. As Independence Party Secretary Petitioner, Corrigan, was charged with the determination of whether a quorum of members was present at the meeting. Section 3, Article 5 of the Rules of the Erie County Independence Party. See Petition, Exhibit D.
On October 12, 2006, Petitioner, Corrigan, wrote a letter to the New York State Board of Elections, Erie County Board of Elections, and Frank McKay, Chairman of the New York State Independence Party which recites, in relevant part:
On that meeting date, as County Secretary, and as found by the court, I determined that there were to (sic) few county committee members present (in person and by proxy) to constitute a quorum. And, after announcing that decision, left the premises.
Petition, Exhibit D.
The Court would further note that attached to the August 10, 2007 Affidavit of Petitioner, Corrigan, as Exhibit B, purports to be a recording of the October 9, 2006 biennial meeting of the Erie County Independence Party. The Affidavits of Petitioners, Beckwith and Corrigan, raise substantial questions as to whether the Erie County Independence Party had a quorum present at its biennial meeting of October 9, 2006 and whether the election was in compliance with the mandates of Election Law § 2-106. In relevant part, Election Law § 2-106 provides:
§ 2-106. State and County committees; election of members
1. Members of the state and county committees shall be elected at the primary election as herein provided.
. . .
3. Members of county committees shall be elected biennially, . . .
In Steward v. Fossella, et. al, 174 Misc 2d 620, 655 NYS2d 819, aff'd 243 AD2d 715, 663 NYS2d 634 , leave to appeal denied 91 NY2d 807, 669 NYS2d 260, the Court held that once party status has been achieved, a political organization must timely act to organize and do business. The court further held that a political party's failure to elect a state committee at an organizational meeting through such committee as required by the Election Law, rendered party's purported nomination of a candidate representative in Congress invalid, despite a party rule authorizing the party chair to nominate candidates until such time as the party elected the state committee.
The substance of Petitioners' claims with respect to a lack of a quorum of members at the Erie County Independence Party organizational meeting on October 9, 2006, necessitates that the [*14]Erie County Independence Party and New York State Independence Party be joined in this action. CPLR §§ 1001(a)(b); 1003.
In the Matter of Red Hook, supra . at 458-459, the court stated:
. . . Indeed, bringing necessary parties into the litigation whenever possible has been the common thread of New York's joinder statutes.
Joinder rules serve an important policy interest in guaranteeing that absent parties at risk of prejudice will not be embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard' (citation omitted). They also protect against multiple lawsuits and inconsistent judgments (citation omitted). When enacted in 1963, the CPLR eliminated the Civil Practice Act's distinction between indispensable' and conditionally necessary' parties, affording the courts greater discretion in permitting cases to go forward after weighing the interests of the litigants, the absent party and the public (citation omitted). Indeed, in its present incarnation, the joinder provision is to be employed to avoid dismissal (3 Weinstein-Korn-Miller, NY Civ Prac ¶ 1001.08 [2d ed]).
While a court . . . The statute directs that a party subject to the court's jurisdiction shall be summoned, while continuance of the action . . .
On the present record, it is evident the Court may not proceed in the adjudication of that portion of Petitioners' claims relating to the alleged absence of a quorum of members at the Independence Party biennial meeting of October 9, 2006.
On the record before the Court, Petitioners' allegations are directed to more than the "mere internal workings of the Erie County Independence Party." In substance, Petitioners maintain that the Erie County Independence Party has not complied with the mandates of Election Law § 2-106; Steward, supra at 620. On the present record, in the absence of the Independence Party, the Court is unable to ascertain as a matter of law whether such claim is time barred or constitutes a continuing violation for limitation purposes. Matter of Flynn v. Olma, et. al., 286 AD2d 568; 730 NYS2d 592 (2001). In the view of the Court, resolution of this issue requires a more fully developed record.
In relevant part, the CPLR § 1001(b) recites:
§ 1001(b) Necessary joinder of parties
. . .
(b) When joinder executed. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned.
Representatives of the Erie County Independence Party and New York State Independence Party are presumably subject to the jurisdiction of New York State Supreme Court. In light of the Court of Appeals' holding in Red/Hook, supra , the Court pursuant to CPLR§ 1001(b), hereby directs Petitioners to join the Chairman of the Erie County Independence Party and New York Independence Party, together with any other persons who ought to be parties.
Petitioners are directed to effectuate joinder within twenty (20) days of the date of this Memorandum Decision and Order. Should Petitioners not timely effectuate joinder, the Court [*15]will avail itself of the dismissal remedy afforded under CPLR § 1003. Pursuant to the provisions of CPLR § 1003, the Court hereby severs Petitioners' claim arising out of or relating to their allegations concerning the lack of a quorum at the Erie County Independence Party biennial meeting of October 9, 2006 from those claims which relate solely to alleged legal deficiencies in the Erie County Independence County Certificates of Authorization dated March 25, 2007, April 2, 2007, and July 23, 2007. The Court now proceeds with an analysis of those claims.
The Court May Proceed with Adjudication of Petitioners' Claims
Concerning the Certificates of Authorization
The Court recognizes it is obligated to determine whether it may proceed to adjudicate Petitioners' claims solely related to the legal sufficiency of the Certificates of Authorization in light of the absence of the Chairman of the Independence Party, the Executive Committee, and New York State Independence Party as respondents. Red Hook, supra at 452; O'Brien v. Seneca County Board of Elections, et. al., 23 AD3d 1036 (4th Dept. 2005); CPLR §§ 1001(a)(b) and 1003. The Court further recognizes that, in light of the absence of the Chairman of the Erie County Independence Party, the Executive Committee, and New York State Independence Party, it is required to perform the five (5) factor analysis cited in CPLR § 1001(b). See CPLR § 1001 Commentary. The Court now turns its attention to the five (5) factor analysis required under CPLR § 1001(b).
In light of the Court's severance of Petitioners' claims concerning the Independence Party biennial October 9, 2006 meeting, Petitioners will have no effective remedy if the Petition is dismissed on account of non-joinder. The Court further determines that no prejudice will accrue from the non-joinder since the matter to be addressed involves the determination of the legal sufficiency of the Certificates of Authorization and Acceptances which are publicly filed
documents. The Court further determines that no prejudice will accrue to either the Erie County Independence Party or the New York State Independence Party by Court adjudication of claims limited to review of the legal sufficiency of the three (3) Certificates of Authorization. Such certificates were prepared by the Erie County Independence Party and filed with the Board. The Erie County Independence Party had ample opportunity to comply with the relevant provisions of
Election Law § 6-118, 6-120(3), 6-158(2) concerning the Certificates of Authorization. The Court is merely reviewing whether the three (3) Certificates of Authorization comply with statutory mandates.
Independent of the action taken by the Court to sever Petitioners' claims concerning lack of a quorum of members at the October 9, 2006 biennial meeting of the Independence Party, the Court sees no need for any further protective provision by Order of the Court. Finally, the Court determines that it can craft an effective judgment in the absence of either the Erie County Independence Party or New York State Independence Party concerning the Certificates of Authorization. See Saratoga Chamber of Commerce, Inc., et.al. v. Pataki, et.al., 100 NY2d 801, 766 NYS2d 654 (2003); Huron Group, et. al. v. Pataki, et. al., 5 Misc 3d 648, 785 NYS2d 827, aff'd 23 AD3d 1051, 803 NYS2d 465 (4th Dept. 2005).
In substance, Petitioners maintain the three (3) Certificates of Authorization dated March 25, 2007, April 2, 2007 and July 23, 2007 filed with the Erie County Board of Elections are legally deficient under Election Law § 6-102(3). In substance, the adjudication of Petitioners' claim involves a legal determination whether the Independence Party's three (3) Certificates of [*16]Authorization and Respondent, Clark's, two (2) Acceptances thereof, comply with New York Election Law § 6-118, 6-120(3) and 6-158(2).
For the foregoing reasons, the Court determines that it may proceed with the adjudication of Petitioners' claims against Respondents concerning the alleged legal insufficiency of the three (3) Certificates of Authorization. The Court now turns its attention to the issue of standing of Petitioners, Keane and Heffle, in this proceeding.
Keane Standing
The Court raised the issue of Petitioner, Keane, as an aggrieved candidate under Election Law § 16-102(1) on the return date of Respondent, Clark's, Motion to Dismiss. The Court notes that in the Answer and Objections filed by Respondent, Clark, dated August 9, 2007, no objection is made to Petitioner, Keane's, standing as an aggrieved candidate. Respondents, Ward and Mohr, and the Board, have not filed an Answer in this proceeding. It is the Court's understanding that Respondents, Ward and Mohr, have chosen to abide the event. The failure of Respondents to object to Petitioner, Keane's, standing as an aggrieved candidate constitutes a waiver of the issue as a matter of law. Klein, et.al. v. Garfinkle, et. al., 12 AD3d 604; 786 NYS2d 77 (2nd Dept. 2004).
However, the Court deems it necessary to address the standing issue of Petitioner, Keane, because of a body of case law which addresses the standing of candidates who are non-party members attacking the validity of a Wilson-Pakula authorization granted to an opponent. Case law binding upon this Court mandates that a candidate of one party will be denied standing to commence a proceeding to invalidate the designation of a candidate of the opposing party where the underlying challenge is merely to internal affairs or operating function of a political party rather than to a legislatively-mandated requirement of the Election Law. Koppell v. Garcia, et al, 275 AD2d 587, 712 NYS2d 697 (3rd Dept. 2000); DiStefano v. Kiggins, et. al., 254 AD2d 688, 678 NYS2d 416 (1998); Sullivan v. Longo, et. al., 286 AD2d 1002, 730 NYS2d 889 (4th Dept. 2001); Gross v. Hoblock, et.al., 6 AD3d 933, 775 NYS2d 421 (3rd Dept. 2004); Breslin v. Conners II, et. al., 10 AD3d 471, 781 NYS2d 225 (3rd Dept. 2004).
Cases which have addressed the standing of a candidate as an "aggrieved candidate" under Election Law § 16-102 are careful to denote a distinction between whether the aggrieved candidate is asserting a process challenge affecting the internal affairs of a political party or whether the challenge is to the legislatively-mandated requirements of the Election Law. Under the former, no standing is conferred to a candidate. See Sullivan v. Longo, et. al., supra . at 1002, leave denied 97 NY2d 601 (2001). Under the later, standing is granted. See Gross v. Hoblock, et.al., supra . at 935. In Gross, supra . at 935, the court recites:
... To be sure, this Court previously has held that a candidate of one party has no standing to challenge the designating petition of another party's candidate where such challenge is founded upon a lack of compliance with Election Law § 6-120 (citations omitted). A careful review of these and other cases, however, reveals that the standing issue ultimately turns upon whether the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates or, rather, to a legislatively mandated requirement of the Election Law (see Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647, 648 [1983], affd 60 NY2d 801 [1983]. Thus, where the challenge is directed to the manner in or methods by which a given party committee votes on or designates a particular candidate, a nonparty candidate will not be deemed aggrieved, as he or she has no interest in whether the [*17]formalities of that process have been followed (citations omitted). Where, however, the challenge is to a legislatively mandated requirement of the Election Law, such as the content of a designating petition (citations omitted), the interests involved . . . transcend the mere regulation of the affairs of a political party' (citation omitted) and standing will lie.
In Breslin v. Conners, 10 AD3d 471, 781 NYS2d 225 (3rd Dept. 2004), the Court recites:
... A candidate of one party will be denied standing to commence a proceeding seeking to invalidate the designation of a candidate of an opposing party where the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates . . . rather [than] to a legislatively mandated requirement of the Election Law' (citations omitted). Standing has routinely been denied where the challenge is based on the lack of compliance with Election Law § 6-120, which has as its intended purpose the regulation of the internal affairs of a political party (citations omitted). The challenges at issue in the instant proceeding, however, are not confined to the internal affairs of the Republican Party or the manner or method by which it nominates it candidates (citations omitted). Rather, they concern the statutory authorization for filing a certificate of declination after acceptance and the time requirements governing the filing of a certificate of declination. . . . Consequently, we are of the view that such matters are legislatively mandated requirements of the Election Law which transcend the mere regulation of the affairs of a political party' (Matter of Martin v Tutunjian, 89 AD2d 1034, 1034 [1982], and that petitioner therefore has standing to maintain this proceeding (see Matter of Gross v Hoblock, supra at 936).
Procedurally, the Court, pursuant to CPLR § 1003, has severed Petitioners' claims concerning the internal affairs of the Independence Party arising out of its alleged failure to have a quorum of members present at its 2006 biennial meeting, the subsequent appointment of the Executive Committee, as well as its authority to issue the subject Wilson-Pakula authorizations.After reviewing Petitioner, Keane's, allegation, this Court determines that his claims relate not merely to the internal affairs of the Erie County Independence Party but instead to whether the subject Certificates of Authorization and Acceptances comply with the requirements of Election Law §§ 6-118, 6-120(3), 6-158(2).
The Court's analysis of the issues raised by Petitioners, Keane and Heffle, include:
1.Whether Election § 6-120(3) mandates the filing by a political party of a Certificate of Authorization within the four (4) day window period described in Election Law § 6-120(3).
2.Whether a designee or nominee of a party must file a Certificate of Acceptance within the statutory period prescribed by Election Law § 6-158(2).
3.Whether any of the three (3) Certificates of Authorization at issue in this proceeding comply with the mandates of Election Law § 6-120(3).
For the foregoing reasons, independent of Respondents' waiver of the issue, the Court determines that Petitioner, Keane, has standing as an aggrieved candidate under Election Law§ 16-102(1).
Heffle Standing
The Court has reviewed the objections filed by Petitioner, Heffle, to the July 23, 2007 Certificates of Authorization and Acceptance. The Court has reviewed the mandates of Election Law § 6-154(2). The Court determines the general and specific objections were timely filed by [*18]Petitioner, Heffle, in accordance with provisions of Election Law §§ 1-106 and 6-154(2). The Court further determines that the objections constitute general and specific objections which warrant judicial review. Van Stockum v. Castine, 218 AD2d 915, 630 NYS2d 811 (3rd Dept. 1995). The Court determines Petitioner, Heffle, has standing as an objector to the July 23, 2007 Certificate of Authorization and acceptance thereof. Prior to addressing the merits, the Court now addresses the issue of standard of review covering this proceeding.
The Standard of Review Governing this Proceeding
The standard of review governing the Court's role in this proceeding is set forth in a series of cases. Gross v. Albany County Brd. of Elections, 3 NY2d 251, 819 NE2d 197 (2004); Matter of Hutson, et.al. v. Bass, et.al., 54 NY2d 772, 426 NE2d 749, 433 NYS2d 57 (1981);
Gross v. Hoblock, et.al., 6 AD3d 933, 775 NYS2d 421 (2004); DiStefano v. Kiggins, et.al., 254
AD2d 688, 678 NYS2d 416 (4th Dept. 1998); and Hazell v. Board of Elections of the State of New York, et.al., 224 AD2d 806, 637 NYS2d 530 (3rd Dept. 1996).
In Gross v. Albany County Board of Elections, 3 NY3d 251 (2004) at 258, the court, in addressing the statutory scheme governing New York Election Law, recited:
. . . The primary objective of this comprehensive statutory scheme is to ensure fair elections by protecting the integrity of the ballot. We have previously recognized in the context of the Election Law that where, as here, the Legislature erects a rigid framework of regulation, detailing . . . specific particulars,' there is no invitation for the courts to exercise flexibility in statutory interpretation (citation omitted). Rather, when elective processes are at issue, the role of the legislative branch must be recognized as paramount' . . . Broad policy considerations weigh in favor of requiring strict compliance with the Election Law . . . [for] a too-liberal construction . . . has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process' (Matter of Staber v Fidler, 65 NY2d 529, 534, 482 NE2d 1204, 493 NYS2d 288 [1985]). Strict compliance also reduces the likelihood of unequal enforcement' . . . . The sanctity of the election process can best be guaranteed through uniform application of the law.
In Hutson, et. al., v. Bass, et. al. 54 NY2d 772 at 774 (1981), the Court of Appeals, in addressing the doctrine of substantial compliance within the context of an Election Law statute, stated:
While substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content (cf. Matter of Higby v Mahoney, 48 NY2d 15). We cannot say here, as we have elsewhere, that there has been compliance with the requirements of * * * the Election Law as to content and substantial compliance with the requirements of that [law] as to form' (Matter of Ruiz v Sachs, 43 NY2d 894, 895). It is wholly immaterial that the courts might reasonably conclude that what they perceive as the ultimate legislative objectives might better be achieved by more flexible prescriptions, prescriptions which might be judged by some to be more equitable. Whatever may be our view, the Legislature has erected a rigid framework of regulation, detailing as it does throughout specific particulars' (citation omitted). We can take some solace in the awareness that There is nothing to indicate that strict compliance with the precise requirements of this statute as interpreted is not readily accomplished on the great bulk of designating petitions. It is only the careless or inadvertent failure to follow the mandate of statute and case law which gives rise to the complaints that come before us' . . .
In issues addressing the form of certificates of authorization prescribed by Election Law §§ 6-120(3), courts have adopted a substantial compliance standard noting that the error must constitute a defect invalidating the certificate or constitute a matter presenting an opportunity for prejudice or possibility of fraud (citations omitted). See Hazell v. Board of Education of the State of New York, et.al., supra at 806; DiStefano v. Kiggins, supra at 688. Other courts which have considered the question of the standard of review governing violations of Election Law§ 6-120(3) require that the defect constitutes a fatal defect rather than a mere technicality. Maurer, et. al. v. Monescalchi, et. al., 264 AD2d 542, 694 NYS2d 251 (3rd Dept. 1999). In Maurer, supra at 542, the court held that failure to file a timely certificate of authorization, as required under Election Law, constitutes a fatal defect rather than a mere technicality. With these principles of judicial review in mind, the Court now turns its attention to the merits of this special proceeding.
The Merits
In addressing Respondents' Motion to Dismiss on August 7, 2007, this Court implicitly, but not expressly, ruled upon the question of whether the March 25, 2007 and April 2, 2007 Certificates of Authorization could be passed upon by the Court in this proceeding. For the reasons recited below, the Court now determines that it may pass upon the legal sufficiency of the March 23, 2007 and April 2, 2007 Certificates of Authorization.
The Legal Effect of Filing the March 25, 2007 and April 2, 2007
Corrected Certificates of Authorization
On the record before the Court, it is uncontroverted that the March 25, 2007 Certificate of Authorization filed by the Independence Party with the Board contained a significant discrepancy as to whether Thomas N. Clabeaux or Thomas N. Orsini was the Presiding Officer of the meeting. In the face of objections filed by Petitioners, Beckwith and Corrigan, the Independence Party filed a Corrected Certificate of Authorization with the Board on April 3, 2007. No acceptance to this Corrected Certificate of Authorization was filed by Respondent, Clark. On July 23, 2007, during the statutory window period prescribed by Election Law §§ 6-120(3) and 6-158(2), the Independence Party filed a second Corrected Certificate of Authorization which was accepted by Respondent, Clark.
In reviewing the Independence Party Corrected Certificate of Authorizations filed on April 3, 2007 and July 23, 2007, the Court's attention was drawn to the use of the word "Corrected" on each Certificate. Dictionary.com defines the term "correct" as a verb, which means:
1.to set or make true, accurate or right; remove the errors or faults from;
2.to point out or mark the errors in;
3.to scold, rebuke or punish in order to improve;
4.to counteract the operation or effect of something
hurtful or undesirable;
5.to make a correction or corrections;
6.conforming to fact or truth; free from error, accurate;
7.in accordance with an acknowledged or accepted standard; proper.
[*19]
Dictionary.com defines the term "correction" as a noun which means:
1.something that is substituted or proposed for what is wrong or
inaccurate; emendation; (Italics added.)
2.the act of correction.
See also Merriam-Webster online and Webster's - online dictionary.com
The Court determines the legal effect of the filing of the April 2, 2007 Corrected Certificate of Authorization on April 3, 2007 was to substitute it for the March 25, 2007 Certificate of Authorization. The Court further determines that the legal effect of the filing of the July 23, 2007 Corrected Certificate of Authorization was to substitute it for the April 3, 2007 Corrected Certificate of Authorization.
On the record before the Court, it is uncontroverted that the Independence Party substituted the March 25, 2007 Certificate of Authorization with the filings of the April 3, 2007 and July 23, 2007 Corrected Certificates of Authorization. Accordingly, the Court determines the only operative Certificate of Authorization requiring judicial review is the July 23, 2007 Corrected Certificate of Authorization.
The Statutory Framework of the Election Law Mandate
Strict Compliance with Content, Timing and Filing Requirements
The statutory framework of New York Election Law governing candidate nomination, filing of designating petitions, and challenges thereto, is replete with strict filing and timing deadlines. See Election Law § 1-106, 6-102, 6-120, 6-154, and 6-158. The Courts of Appeals, in its interpretation of the statutory filing and timing requirements has been uniform in strictly construing the statutory provisions concerning matters of content, timing, and filing
requirements. See Hutson, et. al., v. Bass, et. al., 54 NY2d 772 at 774 (1981); Gross, et. al. v. Albany County Board of Elections, 3 NY3d 251 at 258 (2004).
Election Law §§ 6-118, 6-120(3) and 6-158(3) Mandate the Time for Filing
a Certificate of Authorization and Acceptance Must be Within
the Mandatory Statutory Window Period
Election Law § 1-104(7)(11) provides:
7. The term "designation" means any method in accordance with the provisions of this chapter by which candidates for party nomination for public office or for election to party position may be named for the purpose of any primary election. (Italics added.)
11. The term "nomination" means the selection in accordance with the provisions of this chapter of a candidate for an office authorized to be filled at an election. (Italics added.)
In the case In Re King, 130 NYS 914 (4th Dept. 1913) the Court held: "the term nomination' has an entirely different meaning from the term designation,' which is used exclusively to the method by which candidates for party nominations or for the election as party committeemen or delegates may be named in order that they may be placed upon the official ballot for any official primary election."
In relevant part, the provisions of Election Law §§ 6-118 and 6-120(1)(3) and 6-158(3) [*20]recite:
§ 6-118. Designation and nomination by petition
Except as otherwise provided by this article, the designation of a candidate for party nomination at a primary election ... shall be by designating petition.
Election Law § 6-120(1)(3) provide:
§ 6-120. Designation and nomination; restrictions
1. A petition, except as otherwise herein provided, for the purpose of designating any person as a candidate for party nomination at a primary election shall be valid only if the person so designated is an enrolled member of the party referred to in said designating petition at the time of the filing of the petition. (Italics added.)
. . .
3. The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, may . . . authorize the designation or nomination of a person as candidate . . .
§ 6-158. Nominating and designating petitions and certificates, conventions; times for filing and holding
...
2. A certificate of acceptance .. shall be filed not later than the fourth day after the last day to file such designation.
On March 26, 2007 and April 3, 2007, Respondent, Clark, had yet to file any designation petitions. In Breslin v. Conners, et. al., 10 AD3d 471, 781 NYS2d 255 (3rd Dept. 2004), the court construed the word "designation" in Election Law § 6-158(2) to mean designating petition. Election Law § 6-120(1) begins with "A petition." Election Law § 6-120(3) recites "the political committee may authorize the designation." Under the statutory scheme of Election Law§ 6-120(3), a political party may not designate a nominee until there has been a designating petition.
In Quinn v. Power, et.al., 28 AD2d 687, 281 NYS2d 379 (2nd Dept. 1967); aff'd 20 NY2d 682, in addressing validation of a designation petition the Court held:
In our opinion, the order of Special Term validating the designating petition was improper because (1) a designating petition is not valid unless, in addition to the timely filing of a certificate of authorization by the party, there is also a timely filing of a certificate of acceptance by a candidate; ...
Thus the Court in Quinn denoted three (3) distinct elements in the validation of a designating petition: (1) a valid designating petition; (2) a certificate of authorization; and (3) a certificate of acceptance by the person. The Quinn case is instructive in articulating the legal basis upon which a person secures a designation for public office in New York State Law.
In analyzing the language of Election Law §§ 6-120( 3) and 6-158(2), the Court notes that both provisions provide that the respective certificates shall be filed "not later than four days" after the events described in each statute. This supports a statutory construction that a [*21]certificate of authorization should not be filed earlier than the "triggering event" of filing a designating petition under Election Law § 6-134.The statutory scheme set forth in Election Law§§ 1-104(7)(11), 6-118, 6-120(3), 6-134, 6-154(2), 6-158(2) mandate the filing of the certificates of authorization and acceptance within the four (4) day statutory window period, not earlier as occurred in this case.
The Concerns Presented by Early Filing
of the Certificate of Authorization
On April 5, 2007, Respondents, Ward and Mohr, issued a Determination accepting the March 25, 2007 Certificates of Authorization and Acceptance. On August 3, 2007, Respondent, Board, validated Respondent, Clark's, petition and per its decision of April 5, 2007, validated the March 23, 2007 Certificate of Authorization and Acceptance. Respondents, Ward and Mohr, deemed the July 23, 2007 Certificate of Authorization and Acceptance "superfluous." For the reasons recited below, this Court disagrees with the determination of Respondents, Ward and Mohr. The Court would note the term "superfluous" is neither an "acceptance" or "rejection" of the July 23, 2007 Corrected Certificate of Authorization. See Court Exhibits 10 and 11. Respondents, Ward and Mohr, have however passed upon the issue as a factual and legal matter.
The specific issue before the Court is whether Election Law §§ 6-118, 6-120(3) and 6-158(2) permit a political party to file a Wilson-Pakula authorization on behalf of a designee earlier than the window period prescribed in the statute. In Pierce v. Breen, et. al., supra , the Court of Appeals answered this issue in the negative in connection with the premature filing of a certificate of nomination in violation of Election Law §§ 6-116 and 6-158(6). The statutory provisions addressed by the Court of Appeals in Pierce may be argued to be factually distinguishable from Election Law §§ 6-118, 6-120(3) and 6-158(2). However, the issues raised by the court in Pierce concerning the failure to adhere to the framework of the statutory filing and timing requirements of the Election Law are present here. These concerns were also reviewed in Bristol v. Chiavaroli, et. al, 54 AD2d 72, 392 NYS2d 342 (1976) in construing the provisions of prior Election Law § 143(12).
Assuming that Election Law §§ 6-120(3) and 6-158(2) do not constitute a "statutory window mandate" under Breen, and a political party is free to file a Wilson-Pakula authorization prior to the date of filing designating petitions, such action ignores the statutory and legal effect of Election Law §§ 6-118, 6-120(3), 6-154(2), 6-158(2), and 16-102(1)(2).
Conceptual and legal difficulties with an early filing of a Certificate of Authorization and Acceptance raises significant issues, including:
1.How early may a political party file a certificate of authorization?
2.Assuming a political party files an early certificate of authorization, how long does a candidate have to accept?
3.If a certificate of authorization and acceptance is filed early, is there a "case or controversy" in a court challenge in the absence of filed designating petitions?
4.If a certificate of authorization and acceptance is filed early, and objections are filed, when does the statute of limitations commence?
5.If a certificate of authorization and acceptance are filed early, which statute of limitations period governs a proceeding concerning such filing?
6.Does an early filing of a certificate of authorization and acceptance toll the running of the statute of limitations under Election Law §§ 6-154(2) and [*22]16-102(2)?
7.If a certificate of authorization and acceptance is filed early, when does a candidate become an "aggrieved candidate" for purposes of Election Law
§ 16-102(1)?
8.If a court determined a certificate of authorization failed to comply with Election Law § 6-120(3), would the political party be entitled to merely re-file the certificates until it got it right?
In light of Pierce v. Breen et. al., supra at 455, the Court determines that the provisions of Election Law §§ 6-120(3) and 6-158(2) constitute a "statutory window mandate" which requires strict compliance by a political party and candidate in the timing and filing of a certificate of authorization and acceptance through uniform application of law. Gross v. Albany County Board of Elections, et. al., 3 NY3d 251 (2004). The Court determines that the actions of the Independence Party in filing Certificates of Authorization on March 26, 2007 and April 3, 2007 were premature and are null and void under Election Law §§ 6-120(3) and 6-158(2). The Court further determines that the actions of Respondents, Ward and Mohr, in qualifying said March 26, 2007 Certificates of Authorization and Acceptance on April 5, 2007 was premature and are also null and void.
All Three (3) Certificates of Acceptance are Fatally Defective
For the reasons cited below, the Court determines that the March 26, 2007, April 2, 2007 and July 23, 2007 Erie County Independence Party Certificates of Authorization designating Respondent, Clark, as a candidate for Erie County Executive are all fatally defective under Election Law §§ 6-118, 6-120(3), 6-158(2). Pierce v. Breen, et.al., supra . The Court now addresses the fatal deficiency of each of the Certificates of Authorization.
The March 25, 2007 Certificate of Authorization
The Court determines the March 25, 2007 Certificate of Authorization to be fatally defective for the following reasons:
1.The March 25, 2007 Certificate of Authorization was filed prematurely in violation of Election Law § 6-120(3);
2.The March 25, 2007 Certificate of Acceptance was filed prematurely in violation of Election Law § 6-158(2).
3.The March 25, 2007 Certificate of Authorization fails to correctly identify the presiding officer at the special meeting.
4.The March 25, 2007 Certificate of Authorization and Acceptance were substituted by the Independence Party in its filing of the April 2, 2007 Certificate of Authorization.
For the reasons recited in the Court of Appeals in Pierce v. Breen, et.al., supra at 455, and Gross v. Hoblock, et al., supra . at 933, the statutory scheme of Election Law §§ 6-118, 6-120(3), and 6-158(2) do not allow for premature filings of either a certificate of authorization or acceptance. Neither petition is in compliance with the timing requirements set forth in the foregoing statutes. For the reasons previously recited, the Court determines, as a matter of law, that the Erie County Independence Party was compelled to file the Certificate of Authorization within the mandated statutory window period of July 19, 2007 through July 23, 2007. Election Law § 6-120(3); Pierce v. Breen, et. al., supra at 455, Gross v. Albany County Board of Elections, supra , at 251. Similarly, Respondent, Clark, was compelled to file his Certificate of [*23]Acceptance in the same statutory window mandate period. See Election Law §§ 6-118, 6-120(3), and 6-158(2).
Assuming the validity of the March 25, 2007 Certificate of Authorization and Acceptance, the Independence Party filing of the April 2, 2007 Corrected Certificate of Authorization on April 3, 2007 was substituted for the March 25, 2007 Certificate of Authorization and Acceptance.
In reviewing the Independence Party Corrected Certificate of Authorization (filed on April 3, 2007), the Court's attention was drawn to the word "Corrected." Dictionary.com defines the term "correct" as a verb, which means:
1.to set or make true, accurate or right; remove the errors or faults from;
2.to point out or mark the errors in;
3.to scold, rebuke or punish in order to improve;
4.to counteract the operation or effect of something hurtful or undesirable;
5.to make a correction or corrections;
6.conforming to fact or truth; free from error, accurate;
7.in accordance with an acknowledged or accepted standard; proper.
Dictionary.com defines the term "correction" as a noun which means:
1.something that is substituted or proposed for what is wrong or inaccurate; emendation;
2.the act of correction.
See also Merriam-Webster on line and Webster's online.com.
The Court determines that the March 25, 2007 Certificate of Authorization and Acceptance were withdrawn by the Independence Party when it substituted and filed the April 2, 2007 Corrected Certificate of Authorization.
As previously noted, the March 25, 2007 Certificate of Authorization contains a significant irregularity in the acknowledgment as to who served as the presiding officer of the meeting of the Executive Committee which designated Respondent, Clark, as the Independent Party designee for Erie County Executive. Order to Show Cause, Exhibit B. This is a fatal error in both content and form under Gross, Hutson, Hazel and DiStefano.
For the foregoing reasons, the Court vacates and nullifies the March 25, 2007 Certificate of Authorization and Acceptance.
The April 3, 2007 Corrected Certificate of Authorization
On April 3, 2007, the Independence Party filed the April 2, 2007 Corrected Certificate of Authorization with the Board concerning the Clark nomination. Respondent, Clark, did not file a Certificate of Acceptance in connection with the Corrected Certificate of Authorization. The Court determines the April 2, 2007 Corrected Certificate of Authorization fatally deficient for two distinct reasons. Initially, the Court adheres to is previous determination that the Independence Party was compelled to file the Corrected Certificate of Authorization within the statutory window mandate prescribed in Election Law § 6-120(3). Pierce v. Breen, et.al., supra . at 455. Secondly, the Court determines that Respondent, Clark's, failure to file a Certificate of Acceptance to said Corrected Certificate of Authorization constitutes a fatal defect under the Election Law. Irvin v. Sachs, et.al., 129 AD2d 827, 514 NYS2d 747 (2nd Dept. 1987).
The Court determines that even if the Independence Party could prematurely file the March 25, 2007 Certificate of Authorization (which was accepted by Respondent, Clark, on [*24]March 26, 2007), it could not unilaterally file the Corrected Certificate of Authorization without a companion Certificate of Acceptance. To do so, violates the statutory scheme of Election Law §§ 6-120(3) and 6-158(2) which mandate the filing of both documents. Quinn v. Power, et. al., 28 AD2d 687, 281 NYS2d 379 (2nd Dept. 1967); aff'd 20 NY2d 682, 282 NYS2d 550 (1967).
For the reasons cited herein, the Court vacates and nullifies the April 2, 2007 Certificate of Authorization.
The July 23, 2007 Corrected Certificate of Authorization
The July 23, 2007 Corrected Certificate of Authorization filed by the Independence Party is a substitute for the April 2, 2007 Corrected Certificate of Authorization. Accordingly, the Court determines the April 2, 2007 Corrected Certificate of Authorization was no longer in force or effect.
The July 23, 2007 Corrected Certificate of Authorization fails to identify the name of any candidate, public office or residence. The failure of the July 23, 2007 Corrected Certificate of Authorization to name a candidate, public office, and address is not a mere technicality, but goes to deficiency of content and the substance of the nomination process under the statute. Gross v. Albany County Board of Elections, supra at 251; Election Law § 6-120(3). From the face of the July 23, 2007 Corrected Certificate of Authorization, there is simply no way of knowing what candidate or office was intended to be designated in the authorization. The error does not constitute an innocent violation of some technical requirement having no logical bearing upon the underlying purpose of preventing fraud. The error constitutes a fatal defect invalidating the July 23, 2007 Corrected Certificate, as a matter of law, in both content and form. Matter of Hutson v. Bass, et.al., supra at 251; Gross v. Albany County Board of Elections, et.al., supra at 251; DiStefano v. Kiggins, et. al., supra at 688; Matter of Hazell v. Board of Elections of the State of New York, et.al., supra at 806. The Court hereby vacates and nullifies the July 23, 2007 Corrected Certificate of Authorization and Acceptance thereof.
For the reasons recited herein, the Court determines all three (3) Certificates of Authorization are fatally defective. The Court further determines due to the nature of each defect, the Certificates of Authorization cannot be cured by fitting or piecing together any combination of the certificates to find substantial compliance with Election Law § 6-120(3).
Respondents, Ward and Mohr, Determinations
In light of the Court's determination invalidating the three (3) Certificates of Authorization, the April 5, 2007 and August 3, 2007 Determinations of Respondents, Ward and Mohr, concerning the March 23, 2007 and July 23, 2007 Certificates of Authorization and Acceptances are declared invalid, null and void, set aside and vacated.
Relief
In light of the foregoing determination, the Court grants Petitioners the following relief:
1. Petitioners' claims arising out of or relating the alleged lack of a quorum of members of the Erie County Independence Party at its biennial meeting of October 9, 2006, are hereby severed pursuant to CPLR § 1003. Petitioners are directed to join the Chairs of the Erie County Independence Party, and New York State Independence Party, together with any other persons
who ought to be a party to this special proceeding within twenty (20) days of the date of this Memorandum Decision and Order.
2. The claims of Petitioners, Keane and Heffle, concerning the legal insufficiency of the [*25]Erie County Independence Party Certificates of Authorization of March 25, 2007, April 2, 2007 and July 23, 2007 which seeks to invalidate and declare null and void the aforementioned Certificates of Authorization designating Paul T. Clark as the Erie County Independence Party nominee for Erie County Executive in the September 18, 2007 primary and November 6, 2007 general election be and the same is hereby in all respects granted.
3. The Court hereby invalidates, declares null and void, sets aside and vacates the Erie County Independence Party Certificates of Authorization dated March 25, 2007, and Corrected Certificates of Authorization dated April 2, 2007 and July 23, 2007 filed with the Erie County Board of Elections designating Respondent, Paul T. Clark, as the Independence Party designee for the public office of Erie County Executive.
4. The Court hereby invalidates, declares null and void, vacates and sets aside the March 26, 2007 and July 23, 2007 Certificates of Acceptance thereof filed by Respondent, Clark, with the Erie County Board of Elections.
5. The Court hereby invalidates, declares null and void, sets aside and vacates the April 5, 2007 Determination of Respondents, Ward and Mohr, as Commissioners of the Board of Elections of Erie County which validated the March 25, 2007 Certificate of Authorization and
Certificate of Acceptance concerning the designation of Respondent, Clark, as a nominee of the Erie County Independence Party for the public office of Erie County Executive.
6. The Court hereby invalidates, declares null and void, sets aside and vacates so much of the August 3, 2007 Determination of Respondents, Ward and Mohr, as Commissioners of the
Board of Elections of Erie County which confirms their Determination of April 5, 2007 qualifying the aforementioned March 25, 2007 Certificates of Authorization and Acceptance.
7. The Court hereby invalidates, declares null and void, sets aside and vacates so much of the August 3, 2007 Determination of Respondents, Ward and Mohr, as Commissioners of the Board of Elections of Erie County which determined the July 23, 2007 Certificates of Authorization and Acceptance filed by the Erie County Independence Party to be superfluous.
8. The name of Respondent, Paul T. Clark, is hereby stricken from any absentee ballot, electronic ballot, facsimile ballot, paper ballot, prototype ballot, replica ballot, or any voting machine ballot located in Erie County, New York, as a designee, nominee, or candidate of the Erie County Independence Party for the public office of Erie County Executive in the September 18, 2007 primary and November 6, 2007 general election.
9. Respondents, Dennis E. Ward and Ralph E. Mohr, as Commissioners of the Erie County Board of Elections, together with the Erie County Board of Elections be and the same are hereby restrained and enjoined from declaring, disseminating, placing, printing, or publishing the name of Respondent, Paul T. Clark, on any absentee ballot, electronic ballot, facsimile ballot, paper ballot, prototype ballot, replica ballot, or any voting machine ballot located in Erie County, New York, as a designee, nominee, or candidate of the Erie County Independence Party for the public office of Erie County Executive in the September 18, 2007 primary and November 6, 2007 general election.
ORDER OF THE COURT
This Memorandum Decision shall constitute the Order of this Court. In light of the time exigencies presented to perfect an appeal from this Memorandum Decision and Order to the Appellate Division, Fourth Judicial Department, the Court deems service of this Memorandum Decision and Order upon counsel for the parties in open court on the record on August 15, 2007
to constitute good and sufficient service hereof. The Court hereby directs the Clerk of the Court [*26]to immediately file this Memorandum Decision and Order and the underlying papers on which it is based with the Clerk of Erie County.
_________________________________________
Hon. Joseph G. Makowski, J.S.C.
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.
