Matter of Fehrman v New York State Bd. of Elections

[*1] Matter of Fehrman v New York State Bd. of Elections 2008 NY Slip Op 52694(U) [25 Misc 3d 1204(A)] Decided on February 15, 2008 Supreme Court, Albany County Devine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2008
Supreme Court, Albany County

In the Matter of the Application of Robert "Bob" Fehrman, Citizen Objector Aggrieved, and WILL BARCLAY, Candidate Aggrieved, Petitioners,

against

The New York State Board of Elections, Neil Kelleher, Helena Moses Donohue, Evelyn Aquilla, And Douglas Kellner, Commissioners of the Constituting Board, and THE OSWEGO COUNTY BOARD OF ELECTIONS, William W. Scriber and Donald M. Wart, Commissioners constituting the Board, and THE ST. LAWRENCE COUNTY BOARD OF ELECTIONS, Robin M. St. Andrews and Deborah J. Pahler, Commissioners constituting the Board, and THE JEFFERSON COUNTY BOARD OF ELECTIONS, Keith F. Crimmins and James Fitzpatrick, Commissioners constituting the Board, and THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY OF NEW YORK, FRANK MACKAY, Chairman, WILLIAM BOGARDT, Secretary, and THE OSWEGO COUNTY INDEPENDENCE PARTY INTERIM COUNTY ORGANIZATION, ROBERT C. GRAY, JR., Chairman, CALEB SWEET, Secretary, and THE JEFFERSON COUNTY INDEPENDENCE PARTY COUNTY COMMITTEE and EXECUTIVE COMMITTEE, JOHN L. RICE, Chairman, DALE JONES, Secretary and DARREL AUBERTINE, Candidate, Respondents.



In the Matter of DARREL AUBERTINE, Candidate Aggrieved, Petitioner

against

THE OSWEGO COUNTY INDEPENDENCE PARTY INTERIM COUNTY ORGANIZATION, ROBERT C. GRAY, JR., Chairman, CALEB SWEET, Secretary, and THE JEFFERSON COUNTY INDEPENDENCE PARTY COUNTY COMMITTEE and EXECUTIVE COMMITTEE, JOHN L. RICE, Chairman, DALE JONES, Secretary and THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY OF NEW YORK, FRANK MACKAY, Chairman, WILLIAM BOGARDT, Secretary, and THE NEW YORK STATE BOARD OF ELECTIONS, Neil Kelleher, Helena Moses Donohue, Evelyn Aquilla, And Douglas Kellner, Commissions of the Constituting Board, and THE OSWEGO COUNTY BOARD OF ELECTIONS, William W. Scriber and Donald M. Wart, Commissioners constituting the Board, and THE ST. LAWRENCE COUNTY BOARD OF ELECTIONS, Robin M. St. Andrews and Deborah J. Pahler, Commissioners constituting the Board, and THE JEFFERSON COUNTY BOARD OF ELECTIONS, Keith F. Crimmins and James Fitzpatrick, Commissioners constituting the Board, and WILL BARCLAY, Candidate, 48th Senate District, Respondents.



1040/08



APPEARANCES:John Ciampoli, Esq.

677 Broadway, Suite 202

Albany, New York 12207

Attorney for the Messrs. Fehrman and Barclay

Martin E. Connor

61 Pierrepont Street, Suite 71

Brooklyn, New York 11201

Attorney for Mr. Aubertine

Christopher T. Higgins, Esq.

88 Dove Street

Albany, New York 12210

Co-Counsel for Mr. Aubertine

William J. McCann, Esq.

40 Steuben Street

Albany, New York 12207

Attorney for the Respondent New York State Board of Elections and Commissioners

A. Joshua Ehrlich, Esq.

P.O. Box 7273, Capitol Station

Albany, New York 12224

Attorney for the Respondents New York State Independence Party, Frank MacKay and William Bogardt

Michael O'Leary, Esq.

10 Maplewood Street

Albany, New York 12208

Attorney for Respondent Jefferson County Independence Party

Joseph T. Burns, Esq.

217 Maple Road

Syracuse, New York 13219

Attorney for the Respondents Oswego County Independence Party Interim County Organization, Robert Gray and Caleb Sweet

Eugene P. Devine, J.

Petitioners Fehrman and Barclay (hereinafter Mr. Barclay) commenced the first action by order to show cause seeking to declare invalid the certificate of nomination and authorization issued by the Jefferson County Independence Party filed with the New York State Board of Elections (hereinafter the State Board). Mr. Barclay also moves this Court for an order enjoining the Respondent State Board and the three named County Boards of Elections from placing Darrel Aubertine's name on the official ballot to be used at a special election to be held on [*2]February 26, 2008 for the Office of State Senator of the 48th Senate District.

In the first action (index no. 1040-08) any issues regarding service and the filing of specifications and objections had been stipulated to be withdrawn and therefore are waived.

This Court held oral arguments in the first action (index number 1040-08) upon the return date of February 11, 2008.

Petitioner Aubertine (hereinafter referred to as Mr. Aubertine) commenced the second action by order to show cause on February 13, 2008, and prior to any decision or order in the first action. Mr. Aubertine moves this Court for an order invalidating certificate of nomination of Will Barclay and for an order enjoining the State Board from placing Mr. Barclay's name on the ballot as a candidate of the Independence Party for the office of State Senate, 48th Senate District, in the same special election.This Court heard oral arguments upon the return date on February 14, 2008.

At oral argument of the second action, on February 14, 2008, Mr. Aubertine moved to consolidate the two actions. "When consolidation is proposed, the burden today is on the resisting party to show that it would prejudice him."[FN1] These two actions involve almost entirely the same parties, same special election and same issues. The Court has not yet rendered a decision in the first action.[FN2] Additionally, Mr. Barclay has failed to show how he would be prejudiced by the consolidation of these two actions, therefore in the interest of judicial economy this Court granted the motion from the bench and as such the actions are hereby consolidated.

On a related issue, Mr. Barclay's counsel argues that the doctrine of judicial estoppel is applicable to the arguments made by Mr. Aubertine. "Judicial estoppel generally is applied where a party to an action has secured a judgment in its favor by adopting a certain position and then seeks to take a contrary position in the same action or in another action arising from the judgment."[FN3] As the first action has not resulted in a judgment, the doctrine is inapplicable.

Mr. Barclay's counsel asserted at oral argument that his client was not properly served in the second action commenced by Mr. Aubertine. This Court was presented with an affidavit of service by Martin Connor, attorney for Mr. Aubertine, attesting to service pursuant to the order to show cause, this is prima facie proof of service and as such this Court considers all parties properly served.

After consolidation, this Court is essentially faced with two petitions to invalidate the Independence Party nominating certificate of their respective opponents.

The 48th Senate district encompasses St. Lawrence, Jefferson and Oswego counties. In preparation for the special election the Jefferson County Independence Party (hereinafter Jefferson County Party) filed with the State Board a Certificate of Nomination on February 1, 2008 nominating Darrel J. Aubertine, a registered Democrat, for the position of state senator. On February 4, 2008, the Oswego County Independence Party Interim County Organization [*3](hereinafter Oswego County Party) filed a Certificate of Nomination, nominating Will Barclay, a registered Republican, for the position of state senate. It is undisputed that St. Lawrence County does not have an organized Independence Party.

The election law states, in relevant part:

"Party nominations for an office to be filled at a special election shall be made in the manner prescribed by the rules of the party."[FN4]

"The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, unless the rules of the party provide for another committee, in which case the members of such other committee, and except as hereinafter in this subdivision provided with respect to certain offices in the city of New York, may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party as provided in this section . . . The certificate of authorization shall be filed not later than four days after the last day to file the designating petition, certificate of nomination or certificate of substitution to which such authorization relates. The certificate of authorization shall be signed and acknowledged by the presiding officer and the secretary of the meeting at which such authorization was given."[FN5] (emphasis added)

In this case, the Court is faced with an election district that spans three counties and two counties have formed county Independence Party organizations and each of these duly formed committees have nominated different candidates for the same office. Therefore, resolution of this issue will involve an interpretation of The New York State Committee of the Independence Party rules (hereinafter the State Party). That party's rule state:

"Nominations for public office to be filled at a special election shall be made by the state executive committee; provided, however, that if such elective office shall fall within a county which has elected an Independence Party county committee pursuant to the Election Law or formed an interim county organization pursuant to Article X of these rules, and if the rules of said county committee or interim county organization make provision for the filling of said vacancy, the vacancy shall be filled in accordance with that provision; and provided further that if such elective office shall fall within more than one county, each of which has elected an Independence Party county committee pursuant to the Election Law or formed an interim county organization pursuant to Article X of these rules, and if the rules of all of those county committees or interim county organizations include the same provisions for the filling of said vacancy, the vacancy shall be filled in accordance with that provision ..."[FN6] (emphasis added)

The above rule essentially states that the "the executive committee of the State Independence Party Committee makes nominations for special elections unless a described [*4]exception applies."[FN7] The first exception is where the public office falls within a county that has an Independence Party county committee and that committee has rules for filling vacancies. This first exception does not apply, as two of the three counties have organized parties and therefore the elected office does not "fall within" one county as was found in DiCaprio v. Kosiur.[FN8]

Before either county committee, and not the State Party Executive Committee, may nominate this Court must then look to whether the second exception applies. It states "where the public office falls within more than one county and each county has an Independence Party county committee with rules for filling vacancies, all of which are the same."[FN9] (Emphasis supplied) If this exception were to apply, the State Party rules provide that the county with the most weighted vote, according to the last gubernatorial race, would file the certificate of nomination.[FN10]

In the case before this Court, the district does fall within more than one county (Jefferson and Oswego) and each county committee has rules for filling vacancies. The ultimate analysis then becomes whether the two counties' rules for filling vacancies are the same. If the rules are not the same, neither county committee may act and the choice of candidate falls to the State Party. None of the parties assert that the State Party ever took the steps necessary to nominate a candidate in this case. Therefore, if the rules are not the same there is no validly nominated Independence Party candidate.

Jefferson County's rules state that the entire county committee is to handle the designation, nomination or substitution of a candidate when the elected office extends beyond the county, however in its absence the Executive Committee may act.[FN11] In contrast, Oswego County's rules state that the power of nomination or authorization pursuant to Election Law §6-120 "shall be exercised by the Executive Committee."[FN12] (emphasis added)

Mr. Barclay's affidavit of Thomas Connolly ( the Vice Chairman of the State Party) asserts that "the same" is interpreted as "resembling in every relevant respect."[FN13] Mr. Connolly asserts that the rules resemble each other in that both committees nominate by executive committee. Although this may have been how each committee nominated their candidates in this situation, this is not the test. This Court must examine whether the rules are the same and not whether, under the facts of this case, their implementation happened to be the same.

Here the applicable rule of the State Party requires that nominations for a public office to [*5]be filled at a special election shall be made by the state executive committee unless the elective office shall fall within more than one county, each of which has elected an Independence Party county committee or a formed interim county organization, and if the rules of all of those county committees or interim county organizations include the same provisions for the filling of said vacancy, the vacancy shall be filled in accordance with that provision.[FN14] This rule does not say that the county rules have to resemble each other, but rather it says the provisions for filing the vacancy must be "the same." In fact, petitioners' acknowledge that the rules of Oswego and Jefferson counties are different,[FN15] and the affidavit of Thomas Connolly discusses how the rules resemble each other.[FN16] If the rules were the same there would be no need to discuss their resemblance. That word in and of itself implies a difference exists.

In addition to the fact that the county party rules differ as to who has authority to choose the candidate, the parties' relevant rules also differ as to the use of proxy voting [FN17] and quorum requirements.[FN18] Specifically, Jefferson County's rules allow for proxy voting for all committee actions, while Oswego County's rules do not allow proxy voting when nominating a candidate. Jefferson County's rules require a quorum of twenty-five percent, and in contrast, Oswego County's rules require a quorum of at least fifty percent (but no less than three individuals). Another notable difference in these two county parties' rules is that Jefferson County's rules state that an action of the executive committee can be revoked by the actions of the full county committee [FN19] while the party rules of Oswego County do not contain such a mechanism.

Counsel for Mr. Aubertine argues that the rules of the State Party must be construed to mean that the rules of Oswego County and Jefferson County must be the same or the State Party executive committee must choose the candidate, while counsel for Mr. Barclay argues that whether the rules are the same or different, the more heavily weighted county wins.[FN20] In the alternative, counsel for Mr. Barclay also argues that the rules are in fact the same, as discussed above.

Following the interpretation of Mr. Barclay's counsel would render the State Party Rules, Article VI §2 meaningless since the county with the greater weighted vote would always choose the candidate in a district that crosses county lines. This interpretation is contrary to the rules which state that the authority to nominate a nonparty candidate falls to the executive committee [*6]of the State Party unless the counties have committees with rules and they are the same. In other words, under Mr. Barclay's interpretation the rule at issue, the second exception set forth in Article VI § 2, would in fact not be an exception but would rather be the general rule.

When examining an exception to a general rule, the exceptions must be examined to "extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception."[FN21]

Mr. Barclay's assertion is interpreted by this Court to mean that in a multi-county district where only one county acts, DiCaprio v. Kosiur [FN22] would apply and that county would choose the candidate, and in a multi-county district where two or more counties act the county with the most weighted vote would choose the candidate regardless of whether or not they have same rules pertaining to nominations. This however is not the rule, the rule states that the authority to choose the candidate falls to the State Party Executive Committee unless the exceptions apply and when construing exception to a rule this court must resolve any doubts in favor of the general provision rather than the exception.[FN23]

Therefore, this Court holds that the rules of the Jefferson County Independence Party and those of the Oswego County Independence Party are not the same. The difference is not just in format or semantics, but rather in the process. Jefferson County's Independence Party nomination could have been handled by their County Committee, a much larger body than the executive committee (which consists of six members),[FN24] while Oswego County's rules provide that authorizations under Election Law § 6-120 must be done by the executive committee which is to include the chairman, treasurer and secretary.[FN25] Although in this case, the Oswego Executive Committee and the Interim County Committee, are comprised of the same three individuals,[FN26] the rules must be compared based on their content, and not on their application in this particular instance. Since this Court finds that the rules of the two local county committees are not the same the second exception to the Independence Party Rules, Article VI §2 does not apply. Accordingly, neither Jefferson nor Oswego County can file a valid certificate of nomination, the nomination for the Independence Party candidate for this special election had to have come from the Executive Committee of the State Independence Party. It did not. As the time frame in which to nominate has passed,[FN27] no authorized body has nominated a candidate for [*7]Independence Party line in the special election for the 48th Senate District.

As Mr. Aubertine has paid the appropriate fee at the Albany County Clerk, Mr. Barclays' objections as to this issue are found to be without merit.

Mr. Barclay's objections to the counterclaim being unverified are rendered moot, as Mr. Aubertine has brought his own timely petition.

Mr. Barclay and the State Party's arguments regarding disenfranchising the Independence Party voters are also found to be without merit. Courts have held that disenfranchising voters occurs when there is a "total foreclosure of the rights of certain of the enrolled electorate to express their choice at the polls."[FN28] The ballot for the special election still contains an actual contest between candidates Barclay and Aubertine. Although, the members of the Independence Party will have to vote under the heading of another party, they may still express their choice.

This Court also notes that Mr. Barclay argues that Mr. Aubertine does not have standing to bring his petition, however, this Court disagrees. Mr. Aubertine was nominated by the Jefferson County Party on February 1, 2008 and if no other county had acted, he would have been the candidate under the holding of DiCaprio v. Kosiur,[FN29] therefore, he is an aggrieved candidate.

This Court also notes that following oral arguments and on consent of all the parties, this Court ordered the military and absentee ballots to be certified without a candidate listed on the Independence Party line so as to facilitate their distribution to those who requested such ballots.

In conclusion, the State Party rules provide for their executive committee to choose a candidate in a multi-county district, unless one of two exceptions apply. In this case, exception one does not apply. When examining whether exception two applies, the Court must narrowly construe the rule to favor the general rule, not the exception. The exception states that the provisions for filing a vacancy need to be the same and the Court has examined these provisions and finds them different in both form and substance. Therefore, exception two does not apply and the general rule must be applied. The State Independence Party Executive Committee was the only entity with the authority to choose the candidate for the special election to be held in the 58th Senate District.

Accordingly, it is

ORDERED that Mr. Barclay's petition seeking to declare invalid the certificate of nomination and authorization issued by the Jefferson County Independence Party is granted; and further it is

ORDERED that the State Board and County Boards of Elections are enjoined from placing Darrel Aubertine's name on the official ballot to be used at a special election; and further it is

ORDERED that Mr. Aubertine's petition seeking to declare invalid the certificate of nomination issued by the Oswego County Independence Party Interim County Organization is granted; and it is further

ORDERED that the State Board and County Boards of Elections are enjoined from placing Will Barclay' s name on the official ballot to be used at a special election; and it further [*8]

ORDERED that the State Board is hereby directed to certify the ballot for the Special Election in the 48th Senate District without a candidate listed on the Independence Party Line.

Those arguments not specifically addressed herein are found to be without merit.This Memorandum shall constitute both the Decision and Order of the Court. The Court will fax a copy of this DECISION/ORDER to all parties. The original DECISION/ORDER and the papers considered herein will be available in Chambers for the attorney for Mr. Barclay. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section with respect to filing, entry and notice of entry.

SO ORDERED

ENTER

Dated:Albany, New York

February 15, 2008____________________________________

EUGENE P. DEVINE, J.S.C. Footnotes

Footnote 1: Seigel, NY Prac § 128 at page 221, citing Vigo S.S. Corp., v. Marship Corp., 26 NY2d 157 (1970).

Footnote 2: see CPLR 602.

Footnote 3: Moore v. County of Clinton 219 A D 2d 131 (3d Dept.,1996) citing Horn v Bennett, 253 A D 630 (1938).

Footnote 4: Election Law §6-114.

Footnote 5: Election Law §6-120.

Footnote 6: 1st Amended Petition, exhibit C, Independence Party Rules, Article VI §2.

Footnote 7: DiCaprio v. Kosiur 42 AD3d 867, 869 (3d Dept. 2007).

Footnote 8: DiCaprio v. Kosiur 42 AD3d 867 (3d Dept. 2007).

Footnote 9: Id.

Footnote 10: 1st Amended Petition, exhibit C, Independence Party Rules, Article VI §10, (a) and (b).

Footnote 11: Jefferson County Independence Party Rules, Exhibit 3, Article V § 6.

Footnote 12: Oswego County Independence Party Rule, Exhibit 2, Article VIII § 2

Footnote 13: Affidavit of Thomas Connolly, dated February 11, 2008 at ¶8.

Footnote 14: See Independence Party Rules, Article VI §2.

Footnote 15: 1st Amended Petitioner ¶32

Footnote 16: Affidavit of Thomas Connolly ¶9.

Footnote 17: Jefferson County Independence Party Rules exhibit 3, Article IV §5 and Oswego County Independence Party, Exhibit 2, Article VII §4.

Footnote 18:Jefferson County Independence Party Rules exhibit 3, Article IV §5 and Oswego County Independence Party, Exhibit 2, Article VII §6.

Footnote 19:Jefferson County Independence Party Rules exhibit 3, Article V §1.

Footnote 20: Affidavit of Thomas Connolly, dated February 11, 2008 at ¶6.

Footnote 21: McKinney's Cons. Laws of NY, Book 1, Statutes § 213, at 372.

Footnote 22: DiCaprio v. Kosiur 42 AD3d 867 (3d Dept. 2007).

Footnote 23: McKinney's Cons. Laws of NY, Book 1, Statutes § 213, at 372.

Footnote 24: Jefferson County Independence Party Rules exhibit 3, Article III §1.

Footnote 25: The rules also allow for a vice-chair and at-large members, see Oswego County Rules, Exhibit 2 Article II §1.

Footnote 26: See Affidavit of Thomas Connolly ¶11

Footnote 27: The last day to authorize nominations pursuant to § 6-120(3) was February 8, 2008, see Official Special Election Calendar available at www.elections.state.ny.us.

Footnote 28: Matter of Purtell v. Kuczek, 112 AD2d 1092, 1094, (3d Dept. 1985).

Footnote 29: DiCaprio v. Kosiur 42 AD3d 867 (3d Dept. 2007).