Matter of Consuello v McGrath

[*1] Matter of Consuello v McGrath 2008 NY Slip Op 52057(U) [21 Misc 3d 1112(A)] Decided on October 6, 2008 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 27, 2008; it will not be published in the printed Official Reports.

Decided on October 6, 2008
Supreme Court, Albany County

In the Matter of the Application of Christopher N. Consuello, Luigi G. Lengua, and Jory Cummins, Objectors, Petitioners,

against

Patrick J. McGrath, Candidate, STEVEN K. REDLER and MICHAEL J. IANNONE, as Presiding Officer and Secretary, Respectively, of the Working Families Party Judicial District, THE NEW YORK STATE BOARD OF ELECTIONS, Respondents,



8127-08



APPEARANCES:

THOMAS J. SPARGO, ESQ.

Attorney for Petitioners

363 Joslyn School Road

East Berne, New York 12059

JAMES E. LONG, ESQ.

Attorney for Respondent Patrick J. McGrath

668 Central Avenue Albany, New York 12206

LEVY RATNER, P.C.

(Kevin A. Finnegan, Esq., of Counsel

Attorney for Respondents Redler and Iannone

80 Eighth Avenue

New York, New York 10011-5126

KIMBERLY A. GALVIN, ESQ.

Special Counsel

Attorney for Respondents NYS Board of Elections

40 Steuben Street

Albany, New York 12207

Michael C. Lynch, J.

On September 21, 2008, the Working Families Party (hereinafter WFP) at a judicial nominating convention, nominated respondent Patrick J. McGrath (hereinafter respondent) as its candidate for the office of Justice of the Supreme Court for the Third Judicial District. Petitioners commenced the instant proceeding pursuant to Election Law §16-102 seeking to invalidate the nomination on the grounds there was an insufficient number of delegates present at the convention to constitute a quorum (see Election Law §6-134; §6-136). Petitioners filed both general and specific objections with the State Board of Elections, which Board split 2-2 on the objections raised. Oral argument was held before the Court on October 2, 2008, at which proceeding the parties stipulated into evidence the underlying documents filed with the State Board, identified as petitioners' Exhibits "1" - "6".

Resolution of this dispute centers on determining whether the WFP nominating convention was legally constituted pursuant to Election Law §6-124, for there is no dispute that nine delegates were elected and that all nine delegates and one alternate were present at the convention. The submissions confirm that only respondent's name was placed in nomination and he received all nine delegate votes.

Petitioner's thesis is that the total number of eligible delegates as determined under the party rules is nineteen, and that the nine delegates elected and present at the convention failed to constitute the necessary statutory quorum (Election Law §§6-124, §6-126).

Election Law §6-124 provides as follows: [*2]

"The number of delegates and alternates, if any, shall be

determined by party rules, but the number of delegates shall be

substantially in accordance with the ratio, which the number of

votes cast for the party candidate for the office of governor, on

the line or column of the party at the last preceding election for

such office, in any unit of representation, bears to the total vote

cast at such election for such candidate on such line or column

in the entire state."

The WFP rules provide for the selection of delegates and alternate delegates as follows:

"Each Assembly District or part of an Assembly District

contained within the subject Judicial District shall elect one

delegate and one alternate and one additional delegate and one

additional alternate delegate for every 1,000 votes or major

fraction thereof cast on the Working Families Party line or

column in the last preceding general election for Governor in

that portion of the subject Assembly District contained within

the subject in that judicial district."

(see Petitioners' Exhibit "2" Rules of the Working Families Party of New York State, at Article VIII[3][a]).

Applying the numerical party definition to the 2006 gubernatorial voting results , this Court agrees with petitioners' calculations under the party rules that the total number of delegates computes to nineteen (see Petitioners' Exhibit "5", Specifications of Objections Exhibit "A", p. 2). However, the WFP's 2008 call, which is the statement of party positions to be filled, tabulated this number at seventeen delegates (see Petitioners' Exhibit "4" at pages 8-9). Upon close scrutiny, the discrepancy is explained by the Party's assignment of only one delegate to assembly districts 101 and 109, where by virtue of the vote tally in each district (1,376 votes in 101; and 659 votes in 109) each district was eligible for two delegates under the party rules definitions quoted above (see Petitioners' Exhibit "5", Specification of Objections Exhibit "A", p. 2; Petitioners' Exhibit "6", NYS Board of Elections Nov. 7, 2006 Governors Vote by Assembly District).

We thus have a situation where the party call (seventeen delegates) was less than the number of eligible delegates as calculated under the party rules (nineteen delegates). The record confirms, further, that nine delegates were elected, as follows:

A similar situation was presented in Matter of Azria v. Salerno (124 AD2d

298, rev'd 68 NY2d 887 [2006]). In Azria, the total number of delegates eligible

under the Liberal Party's rules would have been eleven, one for each assembly

district, except the 119th district which would have received two [FN1]. The Liberal

Party call, however, only provided for one delegate from the eight assembly districts situate entirely within the 5th Judicial District. The State Board of Elections certified one delegate from five of the eight designated districts specified in the call. The candidate was unanimously nominated by the five delegates present at the convention. Under this scenario, the Court of Appeals observed "that the party chose a proper number of delegates and that a sufficient number of delegates was available to provide a quorum" (Matter of Azria, supra, 68 NY2d 887, 889).

Here, the NYS Board of Elections "Roll Call" documents that nine delegates were elected in the September, 2008 primary (see Petitioners' Exhibit "3"). Only the delegates certified to be elected were entitled to attend and vote as delegates to the convention (Election Law §6-124). The submissions demonstrate, and the parties do not dispute, that all nine delegates attended the judicial convention and unanimously nominated respondent McGrath (see Affidavit of Steven Redler, dated 10/2/08, at paragraph 6).

The lesson of Azria is that in calculating the total number of eligible delegates under Election Law §6-134, the statute's requirement for proportional

representation takes precedence over the party's rules. Moreover, the statute

does not compel strict compliance "but more generally provides that delegates be chosen substantially in accordance with the ratio'." (Matter of Azria, supra, 68 NY2d at 889).

As set forth in respondent's Verified Answer, the nine delegates from the 104th, 106th, 108th, 109th and 112th assembly districts who attended the convention represented 62.6% of the WFP 2006 gubernatorial vote in the 3rd Judicial District [*3](see Respondent McGrath's Verified Answer at paragraphs 10 and 11; Petitioners' Exhibit "6"). Not to be overlooked here is that Election Law §6-126, which sets forth the rules for holding the convention, specifies that the convention may proceed where "a majority of the delegates...named in the official roll" are present. Here, all nine delegates named in the "official roll" attended the convention.

Accordingly, the Court is satisfied, as in Azria, that "most districts were properly represented in proportion to their voting strength" (Id). Thus, the WFP convention was legally constituted and a quorum was established (cf. Matter of Meader v. Barasch, 133 AD2d 925, app den 70 NY2d 611 [1987]; Matter of Johnson v. Lomenzo, 28 AD2d 965, aff'd 20 NY2d 783 [1967]; compare, Matter of Bruno v. New York State Bd. of Elections, 208 AD2d 877 [1994] [despite the presence of a quorum of nine delegates, convention not legally constituted where the eleven delegates elected from sixteen assembly districts "did not substantially comply with proportional representation" because the delegates elected only represented about 53% of the total votes cast at the last election.])

Accordingly, the petition is hereby dismissed, without costs.

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

SO ORDERED

ENTER

Dated: Albany, New York

October 6, 2008

Michael C. Lynch

Justice of the Supreme Court Footnotes

Footnote 1:The Liberal Party rules definition for calculating delegates is similar to the WFP'srule definitions, for each district is entitled to a minimum of one, and is eligible for additional delegatesfor each 600 votes or major fraction thereof (see Matter of Azria, supra 124 AD2d at pp. 298-299).