Thomas v New York State Bd. of Elections

[*1] Thomas v New York State Bd. of Elections 2007 NY Slip Op 52029(U) [17 Misc 3d 1116(A)] Decided on October 15, 2007 Supreme Court, Albany County Platkin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 15, 2007
Supreme Court, Albany County

Charissa Thomas and Mary Clark, as Chair and Secretary of the 6th Judicial District Convention of the Working Families Party, Robert Master, Chair of the Executive Committee of the Working Families Party and the Executive Committee of the Working Families Party, Petitioners,

against

New York State Board of Elections, Douglas A. Kellner, Commissioner of the New York State Board of Elections, Neil J. Kelleher, Commissioner of the New York State Board of Elections, Evelyn J. Aquila, Commissioner of the New York State Board of Elections and Helena Moses Donohue, Commissioner of the New York State Board of Elections, together constituting the New York State Board of Elections., Respondents,



8007-07



Kathleen O'Keefe, Esq.

Attorney for Petitioners

65 Anthony Drive

Earlton, NY 12058

Todd D. Valentine, Esq.

Attorney for Respondents

New York State Board of Elections

40 Steuben Street

Albany, NY 12207

Richard M. Platkin, J.

In this proceeding brought pursuant to Article 16 of the Election Law, petitioners seek an order: (1) declaring valid the nominating certificate filed with respondent State Board of Elections, purporting to nominate Richard Rich and Molly Reynolds Fitzgerald as candidates of the Working Families Party for the office of Justice of the Supreme Court for the Sixth Judicial District at the general election to be held on November 6, 2007; (2) directing the State Board of Elections to place and print the names of Richard Rich and Molly Reynolds Fitzgerald on the ballot as candidates of the Working Families Party for such office at such election; and (3) enjoining and restraining the State Board of Elections from printing, issuing or distributing official ballots for use at such election upon which the names of Richard Rich and Molly Reynolds Fitzgerald do not appear as Working Families Party candidates for such office. Respondents oppose the petition through an answer.

BACKGROUND

Petitioners Charissa Thomas and Mary Clark were the Chair and Secretary, respectively, of the Sixth Judicial District Convention of the Working Families Party, which was held on September 24, 2007. Petitioner Robert Master is the chair of petitioner Executive Committee of the Working Families Party.

Respondents Douglas A. Kellner, Neil J. Kelleher, Evelyn J. Aquila and Helena Moses Donohue are commissioners of respondent State Board of Elections ("SBOE").

According to petitioners, the Working Families Party held a judicial convention on the evening of September 24, 2007 (hereinafter "Convention") for the purpose of nominating candidates for the office of Justice of the Supreme Court for the Sixth Judicial District at the November 6, 2007 general election. The Convention nominated Richard Rich and Molly Reynolds Fitzgerald as candidates for such office.

According to the affidavit of notary public Jean Gregor, submitted in support of the petition, she was present immediately following the Convention (Gregor Aff. of October 12, 2007, ¶ 3). The Convention ended after 8:00 p.m. on Monday, September 24, 2007, and Ms. Gregor witnessed the signing of the necessary nomination papers, including the minutes of the convention (id. ¶¶ 4-5). At about 5:30 p.m. on Thursday, September 27, 2007, she "received word from Working Families official Eileen Hamlin advising [her] to mail the paperwork" (id. ¶ 6). Shortly thereafter, she left her home and drove to Endicott's main Post Office, approximately two miles away (id. ¶ 7). Upon her arrival, the Post Office was closed, and the outside mailbox indicated that the last pick up was at 5:45 p.m. (id. ¶¶ 8-9). At approximately 5:45 p.m., she placed an envelope addressed to the SBOE containing the minutes and nominating certificate into the mail container at such Post Office (id. ¶ 10).

The envelope received a postmark of September 28, 2007. On October 2, 2007, respondent SBOE determined that the certificate of nomination purporting to nominate Richard Rich and Molly Reynolds Fitzgerald as Working Families Party candidates for Supreme Court in the Sixth Judicial District was invalid because the minutes of the judicial convention were not timely filed.[FN1]

In this proceeding, brought on by Order to Show Cause returnable on October 12, 2007, petitioners contend that mailing the Convention minutes within 72 hours of the convention [*2]constitutes timely filing. Petitioners further argue that any non-compliance with the statutory filing deadline should be excused because "the delay in filing was brief and did not prejudice the integrity of the electoral process or disrupt the electoral machinery" (Petition ¶ 17, quoting Matter of Murphy v. Acito, 65 AD2d 661, 662 [3rd Dept 1978]).

The State Board of Elections contends that the Convention minutes were not timely filed because the envelope in which they were mailed was not "postmarked prior to midnight of the last day of filing" (Election Law § 1-106 [1]). The SBOE further contends the Court lacks discretion to excuse petitioners' late filing and, in any event, should decline to do so based on disruption to the electoral process.

TIMELINESS OF FILING

In support of their argument that depositing the minutes of a judicial convention in a mailbox within 72 hours of the convention constitutes timely filing, petitioners rely on Election Law § 6-158 [6], which provides that the minutes of a judicial nominating convention, "duly certified by the chairman and secretary, shall be filed within seventy-two hours after adjournment of the convention." Petitioners assert that deadlines in the Election Law generally are prescribed in periods of days, and the Legislature's use of a 72-hour deadline for the filing of judicial convention minutes evinces an intent to treat these filings in a different manner. On that basis, petitioners go on to argue that certain requirements of Election Law § 1-106 [1] the statute that generally governs the filing of documents with boards of election are inapplicable to judicial convention minutes.

Pursuant to Election Law § 1-106 [1], "[a]ll papers required to be filed pursuant to the [Election Law] shall, unless otherwise provided, be filed between the hours of nine A.M. and five P.M." (id. [emphasis added]). One such proviso governs the filing of papers with the SBOE by mail. "All papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received . . ." (id.). Thus, even if the SBOE has not received a document prior to the expiration of a filing deadline, the Legislature has directed the SBOE to accept the filing if postmarked within the statutory time period. Concededly lacking a timely postmark, petitioners argue that Election Law § 6-158 [6] establishes a different rule for filing one that simply requires an envelope containing the minutes to be deposited in a mail box within 72 hours to be deemed timely filed with the SBOE.

Even if petitioners were correct in their contention that the Legislature's use of "72 hours" rather than "three days" manifests an intent to take cognizance of fractions of days a construction at odds with usual legislative practice,[FN2] and which raises substantial issues of election administration and enforcement the fundamental flaw in this argument is that nothing in the text of Election Law § 6-158 [6] evinces any intention to establish unique filing procedures for judicial convention minutes. Rather, the relevant statutory language merely calls for the filing of convention minutes within the specified 72 hour period. That this filing period may be further limited in a practical sense by the business hours of the State Board of Elections or a local Post Office does not operate to waive the statutory requirement of a timely postmark an objective and verifiable measure of timeliness that promotes integrity in the electoral process. [*3]

The only action taken by petitioners to comply with the filing requirement within the 72-hour statutory period was to place the envelope containing the minutes in a mailbox. There is no basis in the Election Law to conclude that this action constitutes filing with the SBOE. DISCRETION TO EXCUSE LATE FILING

In the alternative, petitioners argue that the failure to timely file the Convention minutes is not a fatal defect and should be excused by the Court. Petitioners direct the Court's attention to Matter of Murphy v. Acito (65 AD2d 661, 662 [3rd Dept 1978]), in which the Appellate Division, Third Department held as follows:

[W]e find that, even though the minutes of the convention were not timely filed, the delay in filing was brief and did not prejudice the integrity of the electoral process or disrupt the electoral machinery. Accordingly, Special Term properly exercised its discretion and excused the late filing.

The State Board of Elections responds that the failure to timely file a document required as part of the nominating procedure set forth in the Election Law is a fatal defect that cannot be excused by a court.

While Election Law § 1-106 [2] provides that "[t]he failure to file any petition or certificate relating to the . . . nomination of a candidate for . . . public office . . . within the time prescribed by the [Election Law] shall be a fatal defect," the Legislature has not established a similar mandatory provision governing judicial convention minutes. Indeed, following enactment of Election Law § 1-106 [2] ,[FN3] the Third Department has permitted the late filing of judicial convention minutes (Matter of Murphy, 65 AD2d at 662) and stated, albeit in dicta, that the failure to timely file convention minutes is not necessarily fatal (see Matter of Hurd v. Stout, 97 AD2d 616, 617 [3rd Dept 1983], aff'd for reasons stated below 60 NY2d 787 [1983]).

Based on the foregoing authorities, the Court concludes that the late filing of judicial convention minutes may be excused by a court in appropriate cases. Nonetheless, under the facts and circumstances presented by this application, the Court further concludes that excusing petitioners' untimely filing would represent an improvident exercise of judicial discretion.

In Matter of Murphy, the Third Department upheld Special Term's discretionary determination to excuse the late filing of judicial convention minutes based upon a finding that the delay "did not prejudice the integrity of the electoral process or disrupt the electoral machinery" (65 AD2d at 662).[FN4] Here, the State Board of Elections the bi-partisan state agency charged with election administration in New York asserts that excusing petitioners' late filing would disrupt the electoral process (Memorandum of Law in Response to the Petition, p 4 n 1). The SBOE explains that due to the change in date of the 2007 primary election (see Chapter 49 of the Laws of 2007), the time between the primary and general elections has been reduced, thus [*4]increasing the importance of finalizing the general election ballot as soon as practicable. The State Board of Elections expressed particular concern that voters who rely on absentee or military ballots could be adversely affected (see e.g. Election Law 10-108 [1] ["Ballots for military voters shall be mailed or otherwise distributed by the board of elections thirty-two days before a primary or general election."].

Indeed, counsel to the State Board of Elections has represented to the Court that thousands of ballots have already been printed and mailed to registered voters in the ten counties that comprise the Sixth Judicial District. Thus, to alter the ballot at this late stage of the electoral process may result in certain voters having executed and returned military and absentee ballots that do not accurately reflect the final ballot. Similarly, delays in the distribution of revised ballots may make it difficult for certain voters, such as members of the military stationed abroad, to cast and return their ballots within the statutory deadlines to which they are subject.

Pursuant to Election Law § 16-102 [4], "[a] final order in any proceeding involving the names of candidates on ballots . . . shall be made, if possible, at least five weeks before the day of the election . . . , or if such proceeding is commenced within five weeks of such election, no later than the day following the day on which the case is heard." Despite issuance of this Decision & Order on October 15, 2007 the day following the return of petitioners' application there remains only three weeks and one day until the general election. Further, given that the aggrieved party may seek review by the Appellate Division, the final resolution of this matter likely will be even closer to Election Day. Thus, as a result of petitioners' failure to comply with the statutory filing deadline, 10 of New York's 62 counties, and the voters thereof, face continued uncertainty and the potential for disruption of the electoral process.

To be sure, courts can and do issue orders affecting the ballot in the days and weeks before an election. And if this were a case where election officials erroneously had denied the putative candidates their rightful place on the ballot, the Court would be compelled to grant relief, despite disruption to the electoral process. But this is not such a case. Petitioners seek discretionary judicial relief to excuse their failure to comply with a well-established and minimally burdensome filing provision. Under these circumstances, the Court concludes that the discretionary relief sought by petitioners should be reserved only for compelling circumstances a standard that petitioners do not even come close to meeting.

Indeed, petitioners have not provided the Court with any justifiable excuse for their failure to comply with the filing requirements of the Election Law. A careful review of the affidavit of Jean Gregor indicates that she had the relevant documents in her possession on and after the evening of Monday, September 24, 2007, and that she took no steps to file the documents until receiving a call from an official of the Working Families Party at 5:30 p.m. on Thursday, September, 27, 2007 at the close of regular business hours on the last day for filing the minutes with the SBOE. The record contains no explanation or excuse for the filing delay nor discloses any facts establishing responsibility (cf. In re Darling, 189 NY 570, 571 [1907]).[FN5] Accordingly, the Court concludes that petitioners have failed to meet their burden of establishing [*5]an entitlement to the discretionary relief they seek.

CONCLUSION

The Court concludes that the State Board of Elections correctly determined that the certificate of nomination purporting to nominate Richard Rich and Molly Reynolds Fitzgerald as Working Families Party candidates for Supreme Court in the Sixth Judicial District is invalid because the minutes of the judicial convention were not timely filed. While the Court recognizes its discretion to excuse the untimely filing of the Convention minutes, it nonetheless concludes that, under the facts and circumstances presented by this application, it would be inappropriate to do so, based on disruption to the electoral process and the lack of any excuse or explanation for non-compliance with the Election Law's filing requirements.

The Court has considered the parties' remaining contentions and finds them to be unnecessary to the disposition of this application or without merit.

Accordingly, it is

ORDERED that the petition is dismissed.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for petitioners. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

October 15, 2007

Richard M. Platkin

A.J.S.C. Footnotes

Footnote 1: It is undisputed that the certificate of nomination was timely filed.

Footnote 2:In general, "the law takes no notice of fractions of a day" (Goon v. Fu Manchu's Restaurant, Inc., 253 AD 531, 535 [1st Dept 1938]).

Footnote 3: The Legislature enacted the predecessor of Election Law § 1-106 [2] in 1969 to make the failure to timely file a certificate of nomination a fatal defect, thereby overruling judicial decisions holding to the contrary (see Matter of Carr v. New York State Bd. of Elections, 40 NY2d 556, 558 [1976]).

Footnote 4: The Court in Matter of Murphy also relied upon the brief period of delay. There is no dispute that the period of delay at issue here similarly was brief.

Footnote 5: Indeed, given that Ms. Gregor held the nomination documents for three days pending direction from a party official, the record does not foreclose the possibility that the delay was not the product of mistake or inadvertence.