Cox v Spoth

[*1] Cox v Spoth 2018 NY Slip Op 51977(U) Decided on October 12, 2018 Supreme Court, Erie County Wojtaszek, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2018
Supreme Court, Erie County

Edward F. Cox, Petitioner-Party Chairman, Jeffrey C. Zeplowitz, Petitioner-Aggrieved Candidate,

against

Francina J. Spoth, Respondent-Candidate, ERIE COUNTY DEMOCRATIC PARTY, Respondent-Political Party, RALPH M. MOHR and JEREMY J. ZELLNER, Commissioners constituting the ERIE COUNTY BOARD OF ELECTIONS, Respondent-County Board of Elections, PETER KOSINSKI, DOUGLAS A. KELLNER, GREGORY PETERSON and ANDREW J. SPANO, Commissioners constituting the NEW YORK STATE BOARD OF ELECTIONS, Respondent(s)-State Board of Elections, For an Order, pursuant to Article 16 of the Election Law, declaring invalid the Certificate of Nomination to nominate Francina J. Spoth as a candidate for the public office of Town Clerk of the Town of Amherst and an Order restraining the Erie County Board of Elections from placing the name of Francina J. Spoth upon official ballots as a designee of the Democratic Party to be used at the general election to be held on November 6, 2018.



2018-000092



Petitioners Joseph P. Heins, Esq. and Joseph Burns, Esq.; Answering Respondents Jerome D. Schad, Esq.; and Board of Elections Jeremy Toth, Esq.
Paul B. Wojtaszek, J.

The Petitioners, EDWARD F. COX and JEFFERY C. ZEPLOWITZ (hereinafter "the petitioners"), commenced this proceeding by filing a verified petition and Order to Show Cause seeking an Order declaring invalid and/or null and void the certificate of nomination filed on September 19, 2018 nominating respondent-candidate Francina J. Spoth (hereinafter "Spoth") as a candidate for public office of the Town Clerk of the Town of Amherst, to be voted upon at the general election to be held on November 6, 2018, to fill an unexpired term; and restraining the Commissioners of the respondent-Erie County Board of Elections (hereinafter "the Board of Elections") from placing the name of Spoth as a designee of the Democratic Party on the official ballots to be used in the election for Amherst Town Clerk in the general election to be held on November 6, 2018.[FN1]

Procedural Posture:

This proceeding was commenced by the filing of an Order to Show Cause in the Erie County Clerk's Office on September 28, 2018 that was supported by the verified petition of the petitioners sworn to by Jeffery C. Zeplowitz on September 28, 2018 (hereinafter "the verified petition").

In opposition to the verified petition, the respondents Spoth, the Erie County Democratic Party, and Jeremy Zellner (hereinafter collectively referred to as "the answering respondents") filed a verified answer, sworn to on October 7, 2018, and signed by Jerome D. Schad, Esq. on October 7, 2018 (hereinafter the "verified answer"). The verified answer opposed the relief sought in the Order to Show Cause and requested that the verified petition be dismissed in its entirety. The answering respondents also submitted a memorandum of law signed by Mr. Schad on October 9, 2018 seeking a dismissal of the verified petition.

On October 9, 2018 oral argument of the Order to Show Cause proceeded. Petitioners were represented by Joseph P. Heins, Esq. The answering respondents were represented by Mr. Schad. The Board of Elections was represented by Jeremy Toth, Esq. No other appearances were made, and no other papers than those set forth above were submitted to this Court (other than affidavits of service as addressed below).

The jurisdictional and procedural points of law, in addition to the substantive matter of law, will be addressed individually below.

Jurisdictional and Procedural Points of Law:

First, this Court reviewed several original affidavits of service handed up during the course of oral argument and all named respondents were duly and properly served with process pursuant to the service requirements set forth in the Order to Show Cause, therefore the answering respondents' first objection in point of law and affirmative defense fails to require dismissal of the verified petition (see verified answer, at ¶ 23).

Second, the answering respondents asserted that the Erie County Democratic Committee's Executive Committee is a necessary and indispensable party, and the failure to join this party requires a dismissal of the verified petition. The answering respondents relied on Morgan v de Blasio (29 NY3d 559 [2017]) for the proposition that because the Erie County Democratic Committee's Executive Committee is the body being challenged, this makes it a necessary and indispensable party to the proceeding (see verified answer, at ¶¶ 24 — 28). Petitioners' contended that it was futile to name the existing Executive Committee as a party because it was functus officio, without power to act upon substantial matters such as nominations. This contention is persuasive. The 2016 Executive Committee did not have the power to act, and the 2018 Executive Committee was not yet constituted, although its members were elected. There was no body in existence to join, and commencing a proceeding against the Erie County Democratic Party was sufficient. Therefore, the assertion that the petitioners failed to name a necessary party does not require dismissal of the verified petition.

Third, the answering respondents argued that because petitioners are not members of the Democratic Party, and are not aggrieved parties, they lack standing to challenge an alleged infirmity relating to the Erie County Democratic Committee's Executive Committee (see verified answer, at ¶¶ 34 — 41). Unlike Swarts v Mahoney (123 AD2d 520 [4th Dept 1986]) cited by the answering respondents, this Court finds that the petitioners' challenge was based upon the alleged failure to comply with the legislative mandates of the Election Law, most prominently Election Law §§ 6-116 and 6-158(6), therefore the petitioners have standing.

Fourth, in addition to the standing arguments above, with respect to petitioner Cox the answering respondents further argued, among other things, that the verified petition must be dismissed because petitioner Cox failed to verify the petition (see verified answer, at ¶¶ 29 — 33). Verification by one of the petitioners was sufficient, therefore this jurisdictional defense fails (McKinney v Relin, 197 AD2d 839 [4th Dept 1993]).

Fifth, the answering respondents asserted the verified petition fails to state a claim on which relief may be granted (see verified answer, at ¶¶ 42 — 43). This Court must construe the verified petition liberally, accept the facts as alleged as true, accord petitioners the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]) (internal citations omitted). In so doing, this Court finds the verified petition sufficiently states a claim on which relief may be granted.

Having determined that the procedural and jurisdictional defenses do not require dismissal of the verified petition, this Court next turns to the substantive legal issues impacting the certificate of nomination.

Substantive Law on the Certificate of Nomination:

At the center of the substantive dispute in this proceeding, the petitioners argued that Settineri v DiCarlo (82 NY2d 813 [1993]) stands for the proposition that unless "effectively [*2]impossible," a previously elected committee cannot act to file a certificate of nomination (see verified petition, at ¶ 10(f)), and that in the present case it was not effectively impossible, therefore the certificate of nomination should be invalidated. (Emphasis added). The answering respondents argued that Settineri applies to the present case because it was "effectively impossible" for the Erie County Democratic Party to re-constitute the Executive Committee for the 2018-2020 term within 14 days of the vacancy, therefore the out-going Executive Committee, elected in 2016, was obligated to act and file the certificate of nomination (see verified answer, at ¶ 53). (Emphasis added).

The petitioners argued that 14 days was more than sufficient time to canvass and certify newly elected committee members, convene an organizational meeting, elect a chairperson, and file a certificate of nomination and, therefore, the out-going Executive Committee's certificate of nomination is invalid (see verified petition, at ¶ 10; Election Law §§ 6-116 and 158(6)). Conversely, the answering respondents argued that as of September 19, 2018, 14 days was and is insufficient time within which to re-constitute the Erie County Democratic Party's Executive Committee for the 2018-2020 term (see verified answer, at ¶ 53).

This Court has reviewed Settineri at length, importantly the compelling dissent that cites to Torchin v Cohen (286 NY 544 [1941]) and McDonald v Heffernan (300 NY 488 [1949]), and finds that it was improper for an executive committee of a political party to choose a candidate for public office after the election of its successors (see Torchin, 286 NY at 548). It is uncontested in this case that the 2016 Executive Committee filed the certificate even though its successors had been elected. Further, notwithstanding the answering respondents' arguments that the expansive and far-reaching composition of its Executive Committee (54 total members) made it effectively impossible to timely constitute the new Executive Committee, this Court finds this argument to be conclusory, unsupported by any objective data, and insufficient to insulate the answering respondents from their obligation to comply with the Election Law mandates. There was sufficient time to comply with the Election Law, therefore the certificate of nomination is invalid.

For all of these reasons, it is hereby

ORDERED, that the petitioners' verified petition is granted in its entirety, and it is further

ORDERED, that the certificate of nomination filed on September 19, 2018 purporting to nominate Francina J. Spoth as a candidate for the public office of the Town Clerk of the Town of Amherst is hereby declared invalid and null and void, and it is hereby

ORDERED, that the Commissioners of the Erie County Board of Elections are hereby restrained from placing the name of Francina J. Spoth as a designee of the Democratic Party on the official ballots to be used in the election for public office for the office of Town Clerk of the Town of Amherst in the general election of November 6, 2018, and it is hereby

ORDERED, that this shall constitute the Decision and Order of the Court. The delivery of a copy of this Decision and Order shall not constitute notice of entry.

DATED: October 12, 2018

Buffalo, New York

HON. PAUL B. WOJTASZEK

Justice of the Supreme Court Footnotes

Footnote 1: When the Order to Show Cause was filed, the petitioners did not know what the Erie County Board of Elections' determination was regarding Spoth's certificate of nomination. It was learned in Court during oral argument on October 9, 2018, that on or about October 8, 2018 the Erie County Board of Elections certified the certificate of nomination.