Matter of Clapp v Wochensky
Annotate this CaseDecided on August 6, 2018
Supreme Court, Albany County
In the Matter of the Application of James Clapp, MINDY CLAPP, JOHN CLAPP, Petitioners-Objectors, DAVID DIPIETRO, Candidate-Aggrieved, Petitioner-Objector,
against
Luke E. Wochensky, Respondent-Candidate, and NEW YORK STATE BOARD OF ELECTIONS, by PETER KOSINSKI, DOUGLASS A. KELLNER, ANDREW SPANO and GREGORY P. PETERSON, CONSTITUTING COMMISSIONERS, Respondents.
4746-18
James E. Long, Esq.
Attorney for Respondent-Candidate
668 Central Avenue Albany, New York 12206
Law Offices of James E. Walsh
Attorneys for Petitioners
(James E. Walsh, of counsel)
20 Church Avenue
Ballston Spa, New York 12020
Kimberly A. Galvin, Counsel
Attorney for New York State Board of Elections
40 North Pearl Street, 5th Floor
Albany, New York 12207
Richard M. Platkin, J.
Petitioners James Clapp, Mindy Clapp, John Clapp and David DiPietro bring this special proceeding pursuant to Election Law § 16-102, seeking an order: (1) declaring invalid the designating petition filed with the New York State Board of Elections ("SBOE") purporting to designate respondent-candidate Luke E. Wochensky as a candidate of the Democratic, Reform and Working Families parties in the September 13, 2018 primary election for the public office of Member of Assembly for the 147th Assembly District ("Office"); and (2) restraining the SBOE from printing and placing the name of the respondent-candidate on the ballot for such election.
The Order to Show Cause bringing on the Verified Petition ("Petition") was made returnable on July 31, 2018. The respondent-candidate filed a Verified Answer ("Answer") to which he annexed a four-page affidavit concerning his residency. The SBOE produced its file, but takes no position on the merits of the Petition.
The sole issue before the Court is whether the respondent-candidate meets the residency requirements of the New York Constitution (see NY Const, art III, § 7). An evidentiary hearing was held on the return of the Petition.[FN1] The respondent-candidate was the only witness to testify, and petitioners stipulated his affidavit into evidence (see Ans., Ex. A ["Affidavit"]). In addition, petitioners submitted subpoenaed records from the Erie County Board of Elections, including the respondent-candidate's applications for absentee ballots in 2012 and 2016 (see Ex. 1). On the basis of the credible testimony and documentary evidence adduced at the hearing, the Court finds and concludes as follows.
ANALYSIS
A. Legal Standard
Under the New York Constitution, "[n]o person shall serve as a member of the legislature [*2]unless he or she . . . has been a resident of the state of New York for five years, and . . . of the assembly . . . district for the twelve months immediately preceding his or her election" (NY Const, art III, § 7; see Matter of Bourges v LeBlanc, 98 NY2d 418, 420 [2002]). The Election Law defines "residence" as "that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return" (Election Law § 1-104 [22]; see Matter of Glickman v Laffin, 27 NY3d 810, 814 [2016]). Thus, drawing upon "traditional notions of domicile," courts examining the issue of electoral residency look to physical presence coupled "with the intent to remain for a time" (People v O'Hara, 96 NY2d 378, 384 [2001]).
"An individual can have more than one residence and, for Election Law purposes, may choose one to which he or she has legitimate, significant and continuing attachments" (Matter of Glickman, 27 NY3d at 815 [internal quotation marks, brackets and citations omitted]). "As the courts of this state have repeatedly explained, the Election Law does not preclude a person from having two residences and choosing one for election purposes" (Matter of Maas v Gaebel, 129 AD3d 178, 180 [3d Dept 2015] [internal quotation marks and citations omitted]).
"Residency is generally a factual question, dependent upon the particular circumstances presented" (Matter of Glickman, 27 NY3d at 815 [citation omitted]). Courts must look to the individual's "expressed intent and conduct" (O'Hara, 96 NY2d at 384), including whether the individual has "legitimate, significant and continuing attachments" to his or her claimed residence (Matter of Maas, 129 AD3d at 180 [internal quotation marks and citations omitted]). "The party bringing the challenge has the burden of establishing the failure to meet the constitutional residency requirements by clear and convincing evidence" (Matter of Glickman, 27 NY3d at 815 [citation omitted]).
B. Pertinent Facts
The respondent-candidate currently resides at 115 S. Grove St. in the Village of East Aurora ("Grove Residence"), which is located within the 147th Assembly District. He took title to this residence on September 22, 2017, and he has voted from the residence in the November 2017 general election, the March 2018 village election and the May 2018 school district election.
Before taking up residence on Grove Street, the respondent-candidate had been registered to vote at 9233 Heath Road in the Town of Colden ("Heath Residence"), which also is located in the 147th Assembly District. The respondent-candidate had been registered to vote at the Heath Residence since 1998, with the exception of several years during which he was registered to vote in the State of Ohio while attending graduate school at Ohio State University.[FN2] The respondent-candidate voted from the Heath Residence several times in 2016 and 2017, but he does not recall voting in 2014 and 2015.
There are two other properties within the 147th Assembly District with which the respondent-candidate has been associated at pertinent times. He rented an apartment at 61 Paine Street, East Aurora ("Paine Premises") from November 2016 through August 2017. While he stayed at the Paine Premises from time to time during this period, the respondent-candidate considered the Heath Residence to be his permanent residence and domicile, and he continued to use it for his passport, driver's license, bank accounts, retirement accounts, student loans and [*3]credit cards. The respondent-candidate also testified that he continued to spend time at the Heath Residence during this period, including overnights, and kept personal belongings there.
The respondent-candidate also purchased a home at 9663 Crump Road in the Town of Concord ("Crump Premises") from a family estate in August 2014. While the respondent-candidate intended to make this home a residence, he ultimately demolished the structure due to the presence of black mold. He still owns the land, however.
During the five years preceding this application, the respondent-candidate was employed by Eversheds Sutherland, LLC ("Eversheds"), which is incorporated in St. Petersburg, Russia. The respondent-candidate testified that his employer is a subsidiary of Eversheds Sutherland, a global law firm with 2,400 lawyers in 66 offices across 32 countries (see https://www.eversheds-sutherland.com/global/en/who/about-us/index.page). His work for Eversheds involves (1) the defense of Americans and Europeans in arbitrations calling for the application of Russian law, and (2) anti-corruption investigations in Russia. The respondent-candidate is not admitted to the New York bar, but is an "advocate" under Russian law.
The respondent-candidate's work for Eversheds calls for him to spend considerable periods of time in Russia. However, the respondent-candidate avers that all his trips to Russia have been on a business or work visa. His longest stay in Russia was a few months, but most of his trips were for shorter periods. The respondent-candidate did not rent or own any property in Russia; rather, Eversheds supplied him with rental housing or hotel accommodations as needed.
In maintaining that the respondent-candidate has not been a resident of the State for the five years preceding the November 2018 election, petitioners relied at the hearing on records subpoenaed from the Erie County Board of Elections, particularly the respondent-candidate's application for an absentee ballot in 2016.
On February 21, 2016, the respondent-candidate filed a "Voter Registration and Absentee Ballot Request, Federal Post Card Application (FPCA)" (Ex. 1, p. 4 ["2016 Application"]). The first question on the 2016 Application, entitled "Classification," directed the applicant to select one of five possible bases for the issuance of a ballot, and the respondent-candidate checked the box affirming: "I am a U.S. citizen residing outside the United States, and I intend to return" (id.). The respondent-candidate identified his "[v]oting residence address" as the Heath Residence, and he requested that his ballot be sent to the Eversheds office in Moscow, Russia (id.). Finally, in the "[a]dditional requirements" box, the respondent-candidate requested that the board of elections send him absentee ballots for all 2016 elections, including primaries, general and special elections (id.).
The respondent-candidate had filled out a similar, but not identical, form in 2012 (see Ex. 1, p. 3 ["2012 Application"]). In so doing, the respondent-candidate affirmed that he was a "U.S. citizen residing outside the U.S. [who] intend[s] to return," he identified the Heath Residence as his voting address, and he indicated that his ballot should be mailed to the Eversheds office in St. Petersburg, which he was working out of at the time (id.).
On the basis of these affirmed documents, petitioners argue that the respondent-candidate has admitted that he was a resident of Russia in 2012 and 2016, thereby establishing that he was not a New York resident at such times. Petitioners further contend that the respondent-candidate's Federal Post Card Applications ("Applications") for absentee ballots, which allegedly permitted him to cast votes only for federal offices, establish that the respondent-candidate did [*4]not maintain a voting residence in New York when he filed the Applications.
Petitioners also elicited testimony at the hearing that the respondent-candidate has been married twice, both to Russian nationals. In 2012, he married his current wife in Greece, with the marriage certificate having been issued in Russia. The respondent-candidate's first wife was Russian, and he was divorced pursuant to a Russian divorce decree.
On cross-examination, the respondent-candidate testified that he did not consider himself a resident of Russia as a result of his business travels for Eversheds. The respondent-candidate explained that, when filling out the 2012 and 2016 Applications, he selected the box on the preprinted form that most closely resembled his situation: a U.S. citizen outside of the country who intends to return. In this regard, the respondent-candidate testified that he is not an expert in the Election Law, or even an admitted attorney in New York, but he merely wished to avail himself of the opportunity to vote while working abroad. Thus, he was unaware that he may have requested a special federal ballot, rather than an ordinary absentee ballot. The respondent-candidate further testified that he voted in person in New York State in the 2016 general election through an affidavit ballot that allowed him to cast votes for federal, state and local offices.
On redirect, the respondent-candidate was asked whether he paid New York State income taxes. He testified that he did not pay State income taxes in 2014 and 2015, and he was unsure whether he filed State income tax returns for those years.[FN3] According to the respondent-candidate, his accountant advised him that he did not need to pay State income taxes because his "income [came] from outside of New York State," and he did not maintain "New York State tax residency status" pursuant to "certain rules." This changed in 2016, "due to some reason," and the respondent-candidate did file State tax returns for 2016 and 2017.
Finally, the respondent-candidate testified that it was always his intent to return to the Heath Residence from his temporary stays in Russia, and he did, in fact, so return.
C. Analysis
The Court concludes that petitioners have failed to meet their burden of demonstrating by clear and convincing evidence that the respondent-candidate was not a resident of the State for the five years preceding the upcoming general election or a resident of the 147th Assembly District for one year preceding such election.
The uncontroverted proof shows that at all pertinent times prior to September 2017, the respondent-candidate maintained legitimate, significant and continuing attachments to the Heath Residence. He voted from this residence; he spent the majority of overnights in the Health residence when he was not traveling on business; and he used the Heath Residence on his official government documents and financial accounts. The Heath Residence was the respondent-candidate's principal home and the place where he intended to return from his temporary stays in Russia. And from September 2017 onward, the respondent-candidate made the Grove Residence his residence and domicile.
While petitioners emphasize the respondent-candidate's affirmed statements to the Erie County Board of Elections that he was "residing outside the U.S." in 2012 and 2016 (Ex. 1, pp. 4-5), the Court finds that this evidence is insufficient, either in its own right or together with all [*5]other record evidence, to establish the respondent-candidate's lack of New York residency for electoral purposes.
Even assuming that the respondent-candidate had taken up residence in Russia during his temporary stays there for business, a point that has not been convincingly established, it is well settled that an individual may maintain multiple residences and "choose one to which he or she has legitimate, significant and continuing attachments" for electoral purposes (Matter of Glickman, 27 NY3d at 815 [internal quotation marks, brackets and citations omitted]). As stated above, the respondent-candidate maintained legitimate, significant and continuing ties to the Heath Residence when the 2012 and 2016 Applications were filed, and it is apparent that the Heath Residence was, at such times, his "fixed, permanent and principal home and to which he, wherever temporarily located, . . . intend[ed] to return" (Election Law § 1-104 [22]).[FN4]
In this connection, the Court credits the respondent-candidate's testimony that he did not intend his Applications for absentee ballots to be construed as an abandonment of the Heath Residence as his voting residence, and the Court does not believe that the Applications should be construed as such, particularly given the apparent confusion surrounding the issuance of absentee ballot to overseas voters.[FN5] Moreover, the respondent-candidate's casting of an in-person affidavit ballot in the 2016 general election is inconsistent with the intention alleged by petitioners.
With respect to the payment of income taxes, petitioners correctly observe that a New York domiciliary is a resident of the State for income tax purposes and is subject to taxation on his or her worldwide income (see Tax Law § 605 [b] [1] [A]). As petitioners further observe, the "548-day rule" of Tax Law § 605 (b) (1) (A) (ii) provides that such a person will not be deemed a resident of the State for income tax purposes if: (1) he or she was in a foreign country for at least 450 days during any period of 548 consecutive days; (2) such person's spouse and minor children, if any, spent 90 days or less in the State during the 548-day period; and (3) the person was present in the State for less than the number of days permitted by application of a certain formula.[FN6]
From the foregoing, petitioners "deduce" that either the respondent-candidate did not maintain a domicile or permanent place of residence in the State in 2014 and 2015, or he took advantage of the 548-day rule, "therefore rescinding [his] status as a New York State resident" (Petitioners' Memo of Law, p. 4).
As stated above, the Court finds that the respondent-candidate maintained residency for Election Law purposes at the Heath Residence and then the Grove Residence during the constitutional five-year period, and petitioners have failed to come forward with proof that he acquired any other domicile, permanent place of abode, or fixed, permanent and principal home to which he always intended to return during such period. Thus, the respondent-candidate plainly was a resident of the State for income tax purposes in 2014 and 2015, unless he was entitled to the benefit of the 548-day rule.
Even assuming, however, that the respondent-candidate's non-payment of taxes for 2014 and 2015 was based upon application of the 548-day rule, a point that has not been established,[FN7] the Court is not persuaded that the assertion of non-residency status for State income tax purposes under the limited exception authorized by Tax Law § 605 (b) (1) (A) (ii) necessarily is inconsistent with a claim of electoral residency. The 548-day rule calls for application of a tripartite test that looks solely to the physical presence of the taxpayer and his or her immediate family during a 548-day period, whereas electoral residency is drawn from "traditional notions of domicile" (O'Hara, 96 NY2d at 384; see State of New York v Collins, 78 AD2d 295, 296-297 [3d Dept 1981] ["a proper construction of the term resident depends on the particular subject matter and the context in which it is used"]; see also Torrico v International Bus. Machines Corp., 213 F Supp 2d 390, 407-408 [SD NY 2002]). Moreover, the 548-day rule applies, by its terms, only to individuals who are "domiciled in this state" (Tax Law § 605 [b] [1] [A]).
Thus, a New York domiciliary may be deemed a non-resident for State income tax purposes, even though the individual maintains a fixed, permanent and principal home in New York State to which he or she has legitimate, significant and continuing attachments and to which he or she always intends to return. Accordingly, petitioners have failed to demonstrate that invocation of the 548-day rule necessarily operates to "rescind[ the individual's] status as a New York State resident" for electoral purposes (Petitioners' Memo of Law, p. 4).
Under the circumstances, the respondent-candidate's admission that he did not pay New York State income taxes for 2014 or 2015 is insufficient to demonstrate that the respondent-candidate was not a resident of the State for electoral purposes at such times.
Finally, the Court has considered the other evidence relied upon by petitioners, including the respondent-candidate's testimony regarding domestic relations and his bar admission status, but finds that this evidence, even together with all of the other proof adduced by petitioners, including the 2016 Application and the respondent-candidate's non-payment of State income taxes in 2014 and 2015, is insufficient to clearly and convincingly demonstrate that the respondent-candidate does not meet the constitutional residency requirements.
CONCLUSION
On the basis of all of the record evidence, the Court finds and determines that the proof adduced by petitioners is too equivocal for them to sustain their burden of demonstrating by clear and convincing evidence that the respondent-candidate does not meet the constitutional residency requirements for the Office.
Accordingly, it is
ORDERED and ADJUDGED that the relief sought in the Verified Petition is denied in all respects, and the Verified Petition is dismissed in all respects.
This constitutes the Decision, Order & Judgment of the Court, the original of which is being transmitted to counsel for the respondent-candidate for filing and entry; all other papers are being returned to the Albany County Clerk. The signing of this Decision, Order & Judgment shall not constitute entry or filing under CPLR 2220, and counsel is not relieved from the applicable provisions of that section respecting filing, entry and Notice of Entry.
Dated: August 6, 2018
Albany, New York
RICHARD M. PLATKIN
A.J.S.C.
Papers Considered:
Order to Show Cause to Invalidate Designating Petitions, dated July 24, 2018;
Verified Petition, dated July 24, 2018, with attached Exhibit 1;
Verified Answer of Respondent-Candidate Luke E. Wochensky, sworn to July 30, 2018, with attached Exhibit A;
Affirmation in Support of Order to Show Cause, dated July 31, 2018, with attached Attachment 1;
Notice of Motion for Summary Judgment Dismissal of the Petition, dated July 30, 2018; Affirmation in Support of Motion for Summary Judgment Dismissal of the Petition, dated July 30, 2018, with attached Exhibit A;
Board of Elections - Court Exhibit 1- Business Record Certification with accompanying records;
Petitioners' Memo of Law, dated August 2, 2018; and
Letter from James E. Long, Esq., dated August 2, 2018, with attachments. Footnotes
Footnote 1:At the hearing, petitioners abandoned the other grounds for invalidation alleged in the Petition, and the respondent-candidate abandoned the other defenses alleged in his Answer. In any event, the Court has considered the respondent-candidate's remaining defenses to the Petition, including his contention that petitioner David DiPietro, a Republican candidate for the same Office, is not an aggrieved candidate within the meaning of Election Law § 16-102 (1) with respect to the claimed noncompliance with constitutional and statutory mandates, but finds these defenses to be lacking in merit.
Footnote 2:The respondent-candidate was purged from the Ohio voting rolls in 2004.
Footnote 3:The respondent-candidate explained that he may have filed State tax returns "with a zero number" for 2014 and 2015.
Footnote 4:This is not a case where the respondent-candidate has been shown to have acquired a second electoral residence (cf. Matter of Glickman, 27 NY3d at 816).
Footnote 5:In his post-hearing submission, the respondent-candidate submits updated guidance and a new regulation from the SBOE regarding the issuance of absentee ballots to New Yorkers who, like the respondent-candidate, were outside of the country with the intent to return. The new rule, which became effective on March 28, 2018, makes clear to local boards of elections that, when such voters submit a Federal Post Card Application for an absentee ballot, the voters are "entitled to the state and local ballot" so long as they are "duly registered to vote pursuant to Article 5 of the Election Law" (9 NYCRR 6219.1).
Footnote 6:Specifically, the third element of the 548-day rule calls for determination of whether during the nonresident portion of the tax year in which the 548-day period begins, and during the nonresident portion of the tax year in which the 548-day period ends, the person was present in New York State for no more than the number of days which bears the same ratio to 90 as the number of days in such portion of the tax year bears to 548.
Footnote 7:Petitioners did not elicit any testimony confirming that the respondent-candidate's non-payment of State income taxes in 2014 and 2015 was based on application of the 548-day rule. Nor did petitioners elicit testimony quantifying the allocation of the respondent-candidate's time (and that of his family) between New York and Russia or whether he paid income taxes to any foreign jurisdiction. Thus, the record is insufficiently developed to reach any firm conclusion about application of the 548-day rule. Further, it is entirely possible that the respondent-candidate failed to pay State income taxes in 2014 and 2015 based on erroneous advice from his accountant or for some other reason. The Court reiterates that the only issue before it is petitioners' allegation that the respondent-candidate does not meet the constitutional residency requirement of the Office, and the Court considers the income taxation issue solely in that context.
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