Matter of Bothwell v Bernstein

[*1] Matter of Bothwell v Bernstein 2019 NY Slip Op 50966(U) Decided on May 9, 2019 Supreme Court, Cattaraugus County Ward, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2019
Supreme Court, Cattaraugus County

In the Matter of the Application of William Bothwell, Petitioner-Objector,

against

Alan Bernstein, Howie T. VanRensselaer, M. Andrew Burr, Richard L. Klancer, Richard F. Helmich Jr., Joseph F. Boberg, Michael M. Brisky, Ginger D. Schroder, Howard V. VanRensselaer, Norman L. Marsh, Laurie A. Hunt, Robert A. Parker, R. Donald Benson Jr., Eric M. Firkel, Kip A. Morrow, Kelly J. Andreano, Brian J. George, Frank H. Higgins, Jason M. Panus, Kevin M. Dougherty, Nate D. Smith, Reed H. McElfresh, James C. Hitchcock, Craig J. Maguire, Andrew A. Cooper, John M. Moshier, John A. Pfeffer, Patricia R. Dashnaw, Richard A. Bernstein, Tim A. Engels, Angie M. Mardino-Miller, Jake Hansen-Ivett, Paul M. Luce, Thomas J. Chupa, Sidney L. Barber, Francis Pete Lounsbury Jr., Bridget Holmes, Mark H. Heberling, Barry D. Tingue, Donna M. Vickman, Mindy M. Holland, John S. Hill, Geoffrey G. Milks, Jeffrey M. VanDeCar, Ann L. Carr, Michael N. Gilliland, Gerald P. Maerten, Theodore Mascho, Jeffrey S. Goodyear, Kelle J. Brisky, Thomas P. Delaney, Harrite E. Emmons, Richard M. Michael Jr., Julie A. McConnaughey-Goodyear, Peter E. Wrona, Susan J. Koch, David A. Shinners, Phillip J. Gross, Thomas J. Crouse, Pamela N. Boehmer, Frank E. Bork, Timothy J. Byroads, Daniel T. Martonis, John B. Adams, Jennifer Dabolt, Tamara A. Utley, Dennis K. Parker, Michael H. Becker, Daniel V. Stang, John T. Walgus, Denise M. Trumpore, Dale S. Senn, Robert W. Learn, Cody L. Uhl, Marcia J. Spencer, Bradley W. Regan, Teresa Hewitt, Christopher B. Lexer, Robert Breton, Timothy A. Forrester, Respondent-Candidates, CATTARAUGUS COUNTY CONSERVATIVE PARTY Jay W. Frantz, in his capacity as Chairman and Alan P. Nephew, in his capacity as Secretary of the Cattaraugus County Conservative Party, Respondent, CATTARAUGUS COUNTY BOARD OF ELECTIONS, Kevin C. Burleson and Cortney Spittler (Acting), Commissioners of and Constituting the Cattaraugus County Board of Elections, Respondent



88003



Edward A. Sundquist, Esq.

Attorney for Petitioner-Objector, William Bothwell

Ginger D. Schroder, Esq. and Eric M. Firkel, Esq.

Attorneys for Respondent Candidates Alan Bernstein, et al

Jeffrey T. Bochiechio, Esq.

Attorney for (Acting) Commissioner Cortney Spittler

Jerome D. Schad, Esq.

Attorney for Commissioner Kevin C. Burleson
Dennis E. Ward, J.

BACKGROUND

The Petitioner in this proceeding pursuant to Election Law §16-102 seeks to invalidate a multi-candidate Certificate of Authorization (hereinafter "Certificate") and the underlying designations of all the candidates included on such document filed with the Respondent Cattaraugus County Board of Elections (hereinafter, "Board"). Such Certificate was filed as required by Election Law §6-120, by the Cattaraugus County Conservative Party (hereinafter, "Party"). It purports to include the names of non-party candidates for local public office throughout Cattaraugus County, all of whom supposedly received the party's authorization to be a designated candidate for the Conservative Party nomination at a meeting held on March 2, 2019.

Pursuant to Election Law §6-154(2), the Petitioner timely filed general and specific objections against two of the candidates listed on such Certificate - Donna M. Vickman (hereinafter, "Vickman"), candidate for Farmersville Town Council (to fill an unexpired term) and Frank H. Higgins (a candidate for county legislator in District 8). Respondents conceded in court that the petitioner had the proper residential qualification of residing within the political subdivision to file against the Higgins candidacy (notwithstanding the representation to the contrary in the jurisdiction portion of the Answers of the Candidates and Commissioner Spittler) but not as to the Vickman candidacy.

The Board acted upon such objections at its April 17, 2019 meeting. Commissioner Burleson's position was that, since the allegations were as to fraud, the Board has no jurisdiction to hear such matters. Commissioner Spittler's position was that since the Board had no jurisdiction to handle fraud allegations, the Board should approve the Authorization as to its content. Having received no Board determination on his objections as to fraud, the Petitioner properly and timely commenced this anticipatory invalidation proceeding as required by the strict statute of limitations provisions of Election Law §16-102(2).

On the return date of Thursday April, 25, 2019, the individual Commissioners each separately appeared by different counsel who (properly) submitted individual answering papers on behalf of each Commissioner. Matter of Elgin v. Smith, 10 AD3d 483 (4th Dept. 2004).

The Respondent candidates (all those named on the Certificate plus a few others) appeared by co-counsel on all their behalf. No answering papers nor any appearance in person was made on behalf of the Party, its chair and presiding officer of the authorization meeting, Jay Frantz, or the secretary of the party and of the authorization meeting, Alan Nephew. Likewise, no affidavits or other documents from them were submitted, and they were not present at the court proceeding on the return date.

The individual Commissioners verified their own pleadings. The candidates' pleadings [*2]were ostensibly verified by a single person, Michael Brisky (hereinafter, "Brisky"), under the "unity of interest" theory under CPLR 3020(d) and was also signed by counsel. One of the Respondent candidate parties, on whose behalf the verification was made and whom co-counsel claimed to be representing, was candidate Donna M.Vickman.

No motions were filed by any of the Respondents, but a number of general objections to various parts of the Petitioner's case were raised as affirmative defenses without detailed explanation, other than on the issue of the Petitioner's standing to bring such a proceeding. After argument began, Respondents withdrew their claim that the Petitioner lacked standing (because of a lack of proper residency to object) to the authorization/designation of candidate Higgins. They continued their position that because he did not have standing against the other candidates on the Certificate, and because he had no standing as to them, the Petition was fatally defective.

The names on the Certificate of Authorization that are germane to this case include:

1. Robert Breton - Legislative District 3 (2 to be elected)(Note: Candidate Breton declined on April 8, 2019, the last date to do so. Election Law, Section 6-158(2). Michael Brisky was substituted as a replacement candidate in District 3 but was not authorized at the March 2, 2019 meeting and is not on the Certificate of Authorization at issue here)2. Frank H. Higgins - Legislative District 8 (3 to be elected)3. Donna M. Vickman - Farmersville Council (to fill an unexpired term)

Pertinent to the Petitioner's claim of fraud permeating the entire Certificate, he states that at such meeting on March 2, 2019:

1) In Legislative District 8, Frank H. Higgins was not authorized at such meeting but rather candidate John Crawford was.

2) No vacancy had yet even occurred in the Farmersville Town Council position (for the two year unexpired term) as of the March 2, 2019 date of the Conservative Party Authorization meeting. Petitioner claims that only when the then-sitting town council member, Andrew Warner, resigned in the middle of his 4 year term on March 18, 2019 did such vacancy become available for candidate Vickman to even seek it. As to whether candidate Vickman was authorized at a subsequent different authorization meeting, it was unclear whether there was such an actual formal meeting held thereafter. However, clearly no other subsequent "certificate of authorization" containing her name was ever filed with the Board.

As for Legislative District 3, candidate Breton declined the Conservative Party designation after his designating petition had been filed with the Board. He had also been authorized at the March 2, 2019 meeting. Thereafter, the committee to fill vacancies on the Breton designating petition substituted Michael Brisky as a Conservative Party designated candidate. Up until then, Brisky had been the Republican Commissioner of Elections. Such a substituted non-party candidate is still subject to the statutory requirement for a party approved authorization. Election Law §6-120(3). There was some confusion as to whether he had thereafter ever been authorized as a non-party candidate at a later authorization meeting of the Conservative Party. There was apparently no separate authorization for any meeting other than the March 2, 2019 meeting that was ever filed with the Board.

However, it is unquestioned that he was not authorized at the March 2, 2019 meeting and [*3]was not included on the Authorization document upon which all the other Respondent candidates were included and which document is the subject of this proceeding.

What action (or failure to act) the Board has taken as to the Brisky candidacy for the Conservative Party designation is unclear. It apparently did not officially come into existence until April 12, 2019 (from his testimony) which was after the Certificate of Authorization at issue here was filed with the Board. Exactly when the Brisky authorization by the Party could have taken place remains unclear, as well.

An additional complicating factor has to do with the restrictions on any candidacy of a sitting elections commissioner imposed by Election Law §3-200(6). The issue of its validity is not directly before the court. It does not appear that any objection was ever filed against it. Its relevance here is only as to the verification of the pleadings by Mr. Brisky on behalf of all the other Respondent candidates under the unity of interest theory, and that issue is addressed below.

I. GENERAL DENIALS IN ANSWERS OF RESPONDENTS:

The Answers submitted by Respondent Commissioner Spittler and the Respondent candidates were simply general denials of all 39 paragraphs of the Petition and which the court deems essentially non-responsive to the allegations in the Petition. Some of the allegations that were denied (including by a Commissioner of the County Board of Elections) include:

1) that Petitioner Bothwell is a registered voter and an enrolled member of the Conservative Party.2) that the Board of Elections is:(1) where the challenged authorization was filed,(2) where records on voters are kept,(3) a necessary party to such litigation.

It is also denied, as to this legal proceeding:

(1) all the parties reside in Cattaraugus County,(2) that this court lacks jurisdiction to handle this case,(3) that Cattaraugus County is the proper venue.

Further, the pleadings were submitted by counsel claiming to represent all the candidates named in the invalidation proceeding - including candidate Vickman. A general denial was entered to the allegation that candidate Vickman was not authorized at the March 2, 2019 meeting, as well as the claims surrounding the after-occurring vacancy for which she became a candidate. Counsel and their clients are to be held to a high standard as to their denial of allegations being made that they know are true but nonetheless deny.

These were not denials made upon information and belief but plain, complete denials. Responsibility rests upon the attorneys, the candidates, and here, the individual verifying the Answer, to be truthful to opposing parties, counsel and the court. Those claiming to verify on her behalf or to represent candidate Vickman personally still maintain the responsibility to submit pleadings accurate to the best of their knowledge to the court.

Parties are also held to a high standard of specificity in their pleadings in Election Law proceedings. Matter of Lacorte v. Cytryn, 109 AD3d 544, affd, 21 NY3d 1022 (2013); Matter of Levitt v. Mahoney, 133 AD2d 516 (4th Dept. 1987); Matter of Murray v. Suffolk County Bd. of Elections, 98 AD3d 624 (2nd Dept. 2012). While the rule is generally enforced against a petitioner [*4]initiating a proceeding, the same standard is to be applied to respondents in their responsive pleadings. Matter of Krueger v. Richards, 59 NY2d 680 (1983).

Being presented with unspecified claims for the first time in court denies such party their due process right to be on notice. Matter of Vogel v. Blackwell, 225 AD2d 1091 (4th Dept. 1996); Matter of Suarez v. Sadowski, 48 NY2d 620 (1979).

That requirement's purpose is to prevent either party from being surprised and unable to prepare a response. CPLR 3018. The Answers did present information on the issue of standing based upon the claim of the Petitioner's ineligibility to be a valid objector at the Board (though it was withdrawn in court as to candidate Higgins) but no other information was given as to the other claims of the Respondents' case in their responses.

Being a special proceeding governed by the rules of pleading under Article 4 of the CPLR, proper answering papers are due upon the return date of the proceeding. CPLR 409(a).

The general denial of every single paragraph of the Petition is partially untruthful and totally unresponsive to material elements of the case. Such pleadings run afoul of the need for due process notice to a litigant (here, the Petitioner) in these very truncated Election Law proceedings. A litigant and his/her counsel has the obligation to submit a somewhat detailed pleading as well as the responsibility to be truthful. Simply stated, the court deems such answering pleadings on behalf of the Respondent candidates and Commissioner Spittler, for this reason alone, as non-pleadings and a nullity.

II. CANDIDATE BRISKY HAS NO UNITY OF INTEREST:

On or around April 12, 2019, candidate Brisky was substituted into a vacancy in a Conservative Party designation for County Legislator by the committee to fill vacancies. That vacancy was created by the former candidate's (Robert Breton) declination. Candidate Breton was authorized at the March 2, 2019 meeting prior to the filing of his designating petition and his subsequent declination.

Brisky, who verified the Answer submitted on behalf of all the Respondent candidates herein, was not authorized at the March 2, 2019 authorization meeting. In fact, although he was substituted in as a candidate, he may never have been legally authorized at all. A substituted candidate who is not a party member is still required to be authorized by the proper political party committee. Election Law §6-120(2).

There was apparently no objection filed with the Board against Brisky's designation by substitution for the lack of a valid authorization from the Conservative Party. Without timely objections under Election Law §6-154(2) or a timely invalidation proceeding under Election Law §16-102, his presumptively valid designation is beyond attack. Matter of Kryzan v. New York State Bd. of Elections, 55 AD3d 1217 (3rd Dept. 2008).

However, such substituted candidate status does not give him an "interest" in the validity of the Certificate of Authorization from a meeting at which he was not authorized. In fact, regardless of the outcome of this proceeding, his candidacy is in no jeopardy. For that reason, his verification on behalf of all Respondent candidates in this case under the "unity of interest" theory is invalid. CPLR 3020. Under the circumstances of this case, and particularly because of the questions about the lack of truthfulness as to the allegations about candidate Vickman, such an improperly verified Answer should therefore be treated as a nullity for that reason as well.

III. STANDING:

Respondent Commissioner Spittler and the Respondent candidates both raise in their pleadings that the Petitioner as an objector at the Board failed to comply with the Board's rule for filing objections. The Board has adopted the State Board of Elections rule (9 NYCRR, 6204.1) which provides in part:

"(b) No specification of objection to any petition (emphasis added) will be considered by the Board unless the objector.... (serves) a duplicate copy of the specification to each candidate for public office named on the petition".

The failure of an objector to follow the Board's rules in the objection procedure will deprive the Board and a reviewing court of jurisdiction to rule on such objections. Matter of Zalocha v. Donovan, 120 AD3d 994 (4th Dept. 2014).

Both the Respondent Commissioner Spittler and Respondent Candidate now argue in this proceeding, for the first time, that the Board's rule was not complied with by the Petitioner objector. The argument is based upon the fact that when the Petitioner filed his general and specific objection, he served only the two candidates (Donna M. Vickman and Frank H. Higgins) before filing the original copy of the objections with the Board. There has been no issue raised as to its timeliness or its content.

Election Law §6-154(3) empowers a board of elections to make rules as to the "filing and disposition of petition and certificate objection and specifications". That section of the law specifically references petitions and certificates separately.

Logically, if the Board rule to serve all candidates named in a designating or nominating petition was meant to apply to documents other than a "petition", the rule would similarly so specify by reciting them separately, as well. Election Law § 6-154(3) also speaks specifically of notice of the Board's actions being required to be given by mail "to each name in the petition or certificate" (emphasis added).

Any Board rule made pursuant to §6-154(2) should certainly use the same wording as the statute uses if the objector is expected to serve all the candidates named in a document other than a petition.

As noted below, the Board waived any such alleged failure to follow its rules or residency requirement when it addressed the objection issue at its April 17, 2019 meeting. To the extent that it is argued that the Petitioner's objections at the Board were invalid for failure to comply with the Board's rule, that is denied.

1. Position of the Commissioners:

The Board addressed the objections at its meeting on April 17, 2019. At that time neither commissioner nor anyone present raised any issue as to the objector's alleged failure to follow the Board's rules.

In fact, Commissioner Spittler voted on the substance of the objection to validate the two candidates' Conservative Party authorizations (and designations) because the Board lacked jurisdiction to address the fraud issues. While such a ruling was correct, if the objector had failed to follow the Board's rules, that would have been the jurisdictional issue to be handled first [*5]- a prerequisite to holding the hearing on the objections. By her ruling, she ruled on the objection and thus implicitly found no violation of the Board's rules, either as to residency or service of objections on the other candidates.

Likewise, Commissioner Burleson never rejected the objection due to a residency issue or the failure to serve copies of the objections upon other candidates named in the certificate, but simply passed on ruling on the issue of fraud as beyond the Board's jurisdiction.

2. Doctrine Against Inconsistent Positions:

The doctrine against inconsistent positions (sometimes known as " judicial estoppel") bars a party from taking a position in a court proceeding which is contrary to a prior legal position taken.

Generally this applies to a position taken in a prior legal proceeding. Secured Equities Invs. v. McFarland, 300 AD2d 1137 (4th Dept. 2002). Such a prior proceeding can be in an arbitration, Matter of Peck v. Board of Educ. of City of Buffalo, 66 AD2d 1005 (4th Dept. 1978), or when a tax return is submitted to a federal or state agency. Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 422 (2009).

The Board was unanimous in accepting the objections as served by the Petitioner objector without any jurisdictional ruling against the objector, as reflected in the minutes of the Board's meeting on April 17, 2019. Neither the Board nor an individual Commissioner thereof can now assert an inconsistent position in court. They are estopped from taking a different position in litigation that the objector had failed to comply with the Board rules as to the service of copies on other candidates or residency when they did not so hold at the Board hearing.

3. Respondent Candidates Have No Invalidation Proceeding:

The only valid proceeding before this court is the Petitioner's invalidation proceeding. The Respondent candidates have only (ostensibly) answered in that proceeding. They do not have a separate validation proceeding commenced in which they could contest the Board's ruling that the objector's specific objections could be ruled upon.

Their argument on the validity of the Petitioner's objection procedure at the Board (both his qualification by reason of residency and a claimed failure to serve all candidates named in the subject Certificate) would need to be raised in their own validation proceeding. They are actually seeking to overturn that part of the Board's decision not to refuse to hear the objections on a procedural basis for either the failure to comply with the Board rules or with a statutory requirement of residing in order to validly object. Election Law §6-154(2).

Such relief cannot be granted on the basis of responding papers only. To have that issue properly before the court, a timely cross-petition to validate would be required. Matter of Krueger v. Richards, 59 NY2d 680 (1983); Matter of Suarez v. Sadowski, 48 NY2d 620 (1979). The claim of an underlying flaw in the Petitioner's objector status at the Board is not properly before this court.

4. Petitioner is a Qualified Objector:

As for the substance of the argument that the Petitioner was not qualified to object at the [*6]Board, Petitioner William Bothwell is an enrolled member of the Conservative Party who resides in Legislative District 8 (City of Olean). He duly filed objections with the Board against candidate Vickman (Town of Farmersville) and Frank H. Higgins (City of Olean). Although he may lack the proper residency qualification to object to candidate Vickman, he does have such residency qualification to object to candidate Higgins. Lucariello v. Niebel, 72 NY2d 927 (1988).

Petitioner is therefore qualified as a proper objector against one of the Respondent candidates on the multi-candidate Certificate of Authorization. He then has standing against such candidate to seek invalidation under Election Law §16-102. Having established such standing against one candidate, Petitioner may then seek invalidation of the entire certificate (and all the designations of the candidates thereon). Matter of Hardwick v. Ward, 109 AD3d 1223 (4th Dept. 2013).

IV. PROCEDURAL ISSUES:

1. Capacity of Individual Commissioners:

In this proceeding, the objections filed by the Petitioner were met with a split Board, meaning there was no Board action taken. Election Law §3-212(2). In the absence of a Board decision or court determination to the contrary, a split decision by the Board means the document is entitled to a presumption of validity. Election Law, § 6-154(1). Matter of Lavell v. Baker, 153 AD3d 1135 (4th Dept. 2017).

Although the two commissioners seemed to disagree as to what the Board's proper action on the objections should be, they were both technically correct and their "action" on the objection was correct. Because the objection filed by the Petitioner Bothwell is grounded in fraud, the decision of Commissioner Spittler was that it should deny the objection because the Board possesses only ministerial powers as to the content of the certificate, which is the only authority the Board possesses.

Commissioner Burleson noted that he would not rule on the objection because the substance of its fraud allegations was beyond the scope of the Board's powers and can only be determined by a court of competent jurisdiction.

The Board's decision, though from two separate Commissioners' perspectives, highlights the Board's lack of interest in a court determination as to fraud. The Board, and the Commissioners thereof, have a distinct interest in compliance with the mechanics of and the statutory mandate as to content under the provisions of the Election Law, as it relates to documents filed with it. Any case where such statutory requirements are at issue is of legal interest to a Board, and to the individual Commissioners thereof. See, e.g., Elgin, 10 AD3d at 488.

When properly included as a party, a board of elections or an individual commissioner thereof, has the right to participate in an Election Law court proceeding to which they have been named, including making procedural motions, as to matters in which they have an interest. But, as the Court of Appeals has said:

Boards of Elections may adopt a neutral stance or be limited in the arguments they may [*7]address to the Special Term on questions involving ministerial supervision of petitions. They should not be relied on solely to carry the litigation burden. Such a policy would also offer rich opportunities for collusion.

Matter of Butler v. Hayduk, 37 NY2d 497.

However, as both Commissioners here acknowledge, in matters dealing strictly with allegations of fraud, the Board and its individual commissioners have no direct legal interest in the outcome. They are proper parties and likely necessary parties. However, while they can participate, they are limited in their authority to take certain affirmative actions. See, e.g. Matter of Terranova v. Fudoli, 66 AD3d 1530 (4th Dept. 2009); Matter of Graziano v. County of Albany 3 NY3d 475 (2004).

Therefore, although Commissioner Burleson's responding papers do not suffer from the same specificity deficiency as those of Commissioner Spittler's, he (as well as Commissioner Spittler) lacks the capacity to make the motion to dismiss and raise affirmative defenses, where the sole basis of the Petition is on the allegation of fraud. Neither the Board, nor either Commissioner thereof, generally has any legal interest in the outcome of a proceeding based solely on fraud. Thus, an individual Commissioner has no capacity to make such a motion to dismiss in this case. The same prohibition extends to individual Commissioner Spittler, though her pleadings are also deficient on the lack of specificity basis as noted above.

For that additional reason, the requested dismissal by either Commissioner on any grounds is therefore properly denied.

2. Failure to Name Respondent Candidates/Failure to Timely Serve:

A proceeding to invalidate the designations of candidates on a certificate of authorization generally must join all the named candidates as parties . Matter of Masich v. Ward, 65 AD3d 817 (4th Dept. 2009) . However, an objection to this failure to acquire jurisdiction is personal to the candidate and can be waived.

This court has determined to treat the Answer on behalf of the candidates as a nullity for alternative reasons of the lack of proper verification and the lack of specificity in responding to the allegations in the Petition. Without a proper and timely answer before the court, the objection as to the unnamed candidates (David Forster, Joseph M. Noll, Robert K. Green, Jr. Stephen J. Cornwall, Theresa A. Girome, Seth H. Howard and Daniel Ackley) even if valid in this proceeding is deemed waived.

Notwithstanding such a claim, if any relief is to be granted in a fraud proceeding, it would generally only be granted against parties actually named anyway. Matter of Buchanan v. Espada, 88 NY2d 973 (1996); Matter of Mandell v. Board of Elections in City of NY, 88 NY2d 976 (1996); Matter of Wohl v. Miller, 63 NY2d 687 (1984).

Because this is an invalidation proceeding based upon alleged fraud, the relief granted would be limited to those Respondent candidates properly named and served. Matter of Fischer v. Peragine, 10 AD3d 620 (2nd Dept. 2004). It should also be noted that in Masich, the allegations were claims of statutory and party rules violations and not allegations of fraud, as in this case.

3. Candidate Donna M. Vickman:

The late submissions to the court of a second more specific Answer by Respondents raises the issue of the Petitioner's mailing of the court papers to candidate Vickman at her residence address and not to her post office box. This is also a defense personal to candidate Vickman.

Initially, this court deems that defense is waived by the Respondent candidates because of their failure to submit proper answering papers by the return date. Moreover, although documentation of the omission is noted in the mailing receipts in Petitioner's affidavit of service, there is no proof in the record that candidate Vickman did not receive delivery at her home of the USPS Overnight Delivery. Under these circumstances, the method of service provided for in the Order to Show Cause was reasonably calculated to be received within the April 18, 2019 statute of limitations. Matter of Contessa v. McCarthy, 40 NY2d 890 (1976). The objection to jurisdiction as to candidate Vickman is therefore denied on these alternate grounds as well.

4. Incorrect Street Address of Board of Election:

The Respondents' claim that the Petitioner's use of the incorrect street address for the Board (210 Rock City Street rather than the correct address 207 Rock City Street) is inconsequential, in that there is no indication that the submission was not received. To the extent it might be relevant, it is likewise a defense personal to the Board (or one of its commissioners perhaps) and has not been raised by such parties. It is therefore deemed waived.

5. Inclusion of a Party Not Named in Certificate:

The name of Michael Gilliland, a candidate for Hinsdale Town Justice, was included as a party but was not named in the Certificate of Authorization. It appears that he may have been "endorsed" by the Conservative Party - likely at the same March 2, 2019 meeting where authorizations were made.

Judicial candidates (who are not members of the political party) are specifically exempted from the requirement of a party authorization in seeking a designation for the primary or a nomination for the general election. Election Law § 6-120(4). His inclusion is apparently inadvertent and of no consequence to the other Respondents.

6. Alleged Deficiencies in Mailing Addresses:

Once a Petitioner has complied with the service provisions of the Order to Show Cause and if they are deemed reasonably calculated to effect service within the statute of limitations, the issue of actual receipt need not be proven.

Other than the oral representation by co-counsel for the Respondent candidates, Ginger D. Schroeder, Esq., herself one of the Respondent candidates, no testimony or other proof was produced to prove a lack of receipt within the statute of limitations (even assuming that were the sole test). Matter of Contessa, 40 NY2d at 890. However, given the scope of the relief granted by the court in this proceeding, such issues are nonetheless moot.

V. SUBSTANTIVE ISSUES:

The substance of the Petitioner's allegations of fraud in the preparation and filing of the [*8]Conservative Party's multi-candidate Certificate of Authorization fit into two categories:

1) Town Council - Farmersville (to fill 2 year unexpired term):

In that public office, the incumbent councilman Andrew Warner was then serving a four year term which was not scheduled to be on the ballot in 2019. On March 18, 2019, he resigned, thereby creating a new vacancy which would then be filled at the 2019 general election. The Certificate of Authorization included Respondent candidate Vickman as the party's authorized candidate, saying it had been approved at the March 2, 2019 meeting.

A notarized statement was filed with the Board, as required by Election Law, §6-120, signed by the Cattaraugus County Conservative Party chair Jay W. Frantz and the party secretary, Alan Nephew. As the presiding officer and secretary of the March 2, 2019 meeting, they stated, inter alia, that the candidate Vickman had been authorized at that meeting - which, of course, pre-dated the vacancy. Such a statement was obviously questionable as to its veracity and raised the specter of fraudulent conduct.

2) County Legislator in District 8 (City of Olean - three to be elected):

There were no questions raised as to the authorization of candidates Brian George and Kelly Andreano in District 8. The issue was which candidate was actually authorized for the third position. Apparently based upon the account of George Schneider, Jr., one of the six voting party committee members in attendance at the March 2, 2019 meeting, Petitioner believed that the third candidate with the majority of votes was John Crawford. However, the certificate included the name of Frank H. Higgins instead. (Mr. Schneider did testify in this proceeding).

Based upon these allegations, Petitioner sought to invalidate the authorizations (and the accompanying designations) of every candidate included on the Certificate of Authorization due to a permeation of fraud.

One of the problems with the deficient responsive pleadings submitted by the Respondent candidates (and Elections Commissioner Spittler) is that they were simply a general denial of every one of the 39 paragraphs in the Verified Petition. In fact, the allegations relative to the purported Vickman authorization (outlined in paragraphs 29, 30 and 31) were denied (not upon information and belief) in their entirety - when in fact they were all true.

As the court noted, on the return date no appearance was entered nor were any responsive pleadings submitted on behalf of the Conservative Party, its chair or its secretary. These were the individuals with the personal knowledge of the claimed inaccuracies in the Certificate. That is one reason why in such matters, the party and/or the presiding officer and secretary of the meeting in question are necessary parties to any court proceeding.

They are the ones with both an interest and the firsthand knowledge of the matter in dispute. They failed to appear or to submit answering papers to inform the court as to the truth of why the inaccurate document was filed. Worse perhaps, they allowed their candidates and an Elections Commissioner to submit misleading responsive pleadings to the court and opposing counsel. It truly strains credibility that they were not or could not have been communicating with the candidates or their attorneys about the matter - especially since they were all named parties and were served papers.

It is disturbing that there was no attempt by the party officials to provide information until the court scheduled a full hearing on the issues four days after the first appearance on the return date of the Order to Show Cause. Suddenly, the party secretary was available to testify and there [*9]was also time to submit responsive pleadings on behalf of the party officials and to be represented by the same counsel as the candidates.

Party secretary Alan Nephew testified or the minutes of the meeting show that :

1) candidate Vickman had not been voted on and authorized at the March 2, 2019 meeting.2) Proxy votes were held and voted at that meeting by Chairman Jay Frantz (9 proxy votes) and Secretary Alan Nephew (17 proxy votes).

3) Four other committee members, including George Schneider, Jr (who also testified in Court) were actually present at the meeting.

4) Frank H. Higgins apparently did receive what appeared to be every vote (except one) of those committee members at the meeting. The exception being Mr. Nephew who, when using his proxy votes plus his own vote, voted a total of 18 votes for Mr. Higgins.5) The margin in the vote for the third position in Legislative District 8 was 18 (Frank H. Higgins) to 14 (John J. Crawford) as recorded in the meeting minutes.6) The Committee voted to delegate the authority to give party authorizations for "late nominations for vacancies and substitution" to the party chair and the secretary.7) Mr. Nephew believed that he and Chairman Frantz may have discussed or voted upon an authorization for candidate Vickman sometime thereafter. But he nonetheless included her name in the Certificate for the March 2, 2019 meeting.8) No other separate Certificate of Authorization for candidate Vickman from a later party meeting was ever filed with the Board.

Conservative Party committee member George Schneider, Jr. testified to having attended the meeting and that the voting of those (6) committee members resulted in Mr. Crawford being authorized. In fact, Mr. Schneider's testimony indicated he apparently did not know about the majority of votes by proxy possessed and voted by Mr. Nephew.

The testimony of candidate John Crawford indicated he also had been led to believe he had been authorized. He saw Conservative Party designating petitions with his name (along with two other authorized District 8 candidates: Kelly J. Andreano and Brian J. George) during the designating petition period. However, he began to learn something was wrong when he was shown a petition with candidate Higgins' name rather than his. While such apparent lack of integrity in the process may be distasteful, it does not constitute fraud in the legal sense.

The court does not find that the proof in this case rises to the high standard of "clear and convincing evidence" for a finding that the entire Authorization document was permeated with fraud. Matter of McRae v. Jennings, 307 AD2d 1012 (2nd Dept. 2003) (and cases cited therein). Perhaps Mr. Nephew's very recent involvement in party affairs since October 2018 can excuse his not knowing that:

1) no delegation of the committee's authority under §6-120 would likely be legal; and,2) including the supposed Vickman authorization by the Chair and Secretary at some non-meeting, in the Certificate from the March 2, 2019 meeting (which was a proper meeting) was not legal.

It is also readily understandable that party member Schneider did not know about the use of proxy voting as being provided for in the party rules, let alone whether it was permitted by Election Law §6-120.

What is more disturbing to this court is that another minor political party - the Cattaraugus County Independence Party - supposedly held its Authorization meeting on the same day (March 2, 2019) and authorized candidates very closely tracking those of the Conservative Party. As unbelievable as it may be, the identical mistake as to including candidate Vickman on the Certificate of Authorization from its March 2, 2019 meeting is present there - and, of course, before the vacancy occurred for the Town of Farmersville Council position. Finally, and not without irony, the Certificate for the Independence Party is nearly identical in design and wording to the Certificate in this case. (That Certificate is the subject of another companion proceeding, Augostini v. Bernstein, et al. which was heard and to be decided simultaneously with this case).

A Petitioner can request the relief of total invalidation of all names listed on a single document which is deemed permeated with fraud, even when some candidates are not joined or even properly before the court. Matter of Buchanan v. Espada, 88 NY2d at 973. However, this court deems that drastic remedy inappropriate under the circumstances of this case.Alternatively, in matters such as this, where the integrity of the document is at issue, relief can be granted against some, but not all the parties named in the document. Matter of Fischer v. Peragine, 10 AD3d 620 (2nd Dept. 2004).

The court cannot see imposing the harsh penalty of the invalidation of the Conservative Party authorizations for numerous innocent candidates in light of the testimony and evidence adduced at the trial. They appear to have been properly authorized at a meeting actually held on March 2, 2019 and had nothing to do with what occurred.

The Conservative Party authorization (and the underlying designation) of the Vickman candidacy must, however, be invalidated. With the admittedly invalid authorization from the March 2, 2019 meeting, there is no legal basis under Election Law §6-120 for her designation to stand anyway. Therefore, the whole Vickman candidacy on the Conservative Party line must be stricken as fraudulent. When the candidate has constructive notice of the fraud, invalidation is appropriate. Matter of Hennessey v. DiCarlo, 21 AD3d 505 (2nd Dept. 2005).

The testimony of Mr. Nephew satisfactorily explains the readily understandable assumption of Mr. Schneider that the Certificate incorrectly included the name of Mr. Higgins rather than Mr. Crawford. Since the issue of proxy voting was not before this court, that is a matter to be resolved internally by the party members themselves. That issue as to the alleged fraud in the Legislative District 8, is therefore explained.

CONCLUSION AND RELIEF:

As stated above, the relief requested by the Petitioner for a finding of the permeation of fraud of the entire Conservative Party authorization with the invalidation of all the candidate designations included thereon is denied.

However, the Petition insofar as it seeks to invalidate the Conservative Party authorization and designation of Donna M. Vickman for Farmersville Town Council (to fill an unexpired term) is granted. The Cattaraugus County Board of Elections shall remove her name from the primary and/or general election ballots for the Conservative Party.

Dated: May 9, 2019

Little Valley, New York

_______________________________________

Dennis E. Ward

Justice of the Supreme Court

County of Cattaraugus

Papers considered in this decision:

1) Order to Show Cause and Petition 4/17/19 (signed and filed)

2) Petitioner's Affidavits of Service 4/25/19

3) Respondent Burleson's Answer and Objections 4/23/19

4) Respondent Spittler's Answer and Objections 4/23/19

5) Respondent Candidates' Answer and Objections 4/24/19

Papers received late and not considered:

1) Respondent Conservative Party's Answer and Objections 4/29/19

2) Respondent Candidates' Revised Answer and Objections 4/29/19

3) R Candidates' Affirmation of Counsel/Candidate Ginger D. Schroder, Esq. 4/29/19

Witnesses who testified:

1) John Crawford

2) Michael Brisky

3) Alan Nephew

4) George Schneider, Jr.