Nadel v Goroff

[*1] Nadel v Goroff 2020 NY Slip Op 51179(U) Decided on September 24, 2020 Supreme Court, Onondaga County DelConte, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2020
Supreme Court, Onondaga County

Joseph Nadel, Objector; and LAWRENCE GARVEY, Party Chairman, Petitioners,

against

Nancy Goroff, 1st Congressional District Candidate; ELIJAH REICHLIN-MELNICK, 38th State Senate District Candidate; THE NEW YORK STATE BOARD OF ELECTIONS; THE SUFFOLK COUNTY BOARD OF ELECTIONS; THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK; JOSHUA GOLDFEIN, 1st Congressional District Declining Candidate; JUSTIN SWEET, 38th State Senate District Declining Candidate; JOHN SHANKS, Objector; JOHN HAGGERTY, JR., Objector; VALERIE M. CARTRIGHT, Judicial Office Candidate; BOB COHEN, Judicial Office Candidate; JUDITH GOLDLINER, Judicial Office Candidate; KENNETH SCHAEFFER, Judicial Office Candidate; STEVEN WILLIAMS, Judicial Office Candidate; and AFUA ATTA-MENSAH, Judicial Office Candidate, Respondents.



005876/2020



John Ciampoli, Esq., for Petitioners and Respondent/Cross-Petitioner John Shanks

Lawrence H. Silverman, Esq., for Respondent Nancy Goroff

James E. Long, Esq., for Respondents Justin Sweet and Elijah Reichlin-Melnick

Alexander Rabb, Esq., Levy Ratner P.C., for Respondents Valerie M. Cartright, Bob Cohen, Judith Goldliner, Kenneth Schaeffer and Afua Atta-Mensah

Alyssa Garone, Esq., for Respondent Suffolk County Board of Elections

William McCann, Esq., and Brian Quail, Esq., for Respondent NYS Board of Elections
Scott J. DelConte, J.

This is a special proceeding pursuant to Election Law § 16-102. Petitioners Joseph Nadel and Lawrence Garvey, joined by Respondent/Cross-Petitioner John Shanks, challenge Respondents Justin Sweet and Joshua Goldfein's certificates of declination, along with the subsequent certificates of substitution of Respondents Elijah Reichlin-Melnick and Nancy Goroff, as Working Families Party's candidates for State Senate and Congress, respectively. [*2]Petitioners argue that the declinations are invalid because the judicial convention that nominated Sweet and Goldfein as candidates for Justice of the Supreme Court was not properly constituted, and that the entire judicial nomination process was a political sham. Respondents move to dismiss the Petition arguing, inter alia, that the Court has no jurisdiction to address the merits because this proceeding was not commenced within the statutory period. For the reasons set forth below, the relief requested in the Verified Petition is DENIED, and the Petition and Cross-Petition are DISMISSED.

I.

On August 10, 2020, the 11th Judicial District Convention of the Working Families Party filed a certificate of nomination with Respondent New York City Board of Elections that purportedly nominated Respondents Joshua Goldfein, Justin Sweet, Valerie Cartright, Bob Cohen, Judith Goldliner, Kenneth Schaeffer, Steven Williams and Afua Atta-Mensah as candidates for Justice of the Supreme Court in the November 3, 2020 general election (NYSCEF Doc. 2). The Working Families Party had previously designated Goldfein as its candidate for New York's 1st Congressional District, and Sweet as its candidate for New York's 38th State Senate District in the 2020 general election (NYSCEF Doc. 2). Goldfein and Sweet accepted the judicial nominations, and filed certificates of declination with Respondents Suffolk County and New York State Boards of Elections for the Congressional and State Senate offices (NYSCEF Doc. 2, 10).

The State Executive Board of the Working Families Party met on August 14, 2020, in response to the vacancies created by Sweet and Goldfein's declinations, and on August 17, 2020, filed certificates of substitution designating Respondents Nancy Goroff and Elijah Reichlin-Melnick as the party's candidates for the 1st Congressional District and 38th State Senate District, respectively (NYSCEF Doc. 2, 11).

By Decision and Judgment dated September 9, 2020, in a separate Onondaga County election proceeding, Dooher v Williams, this Court found that, "with respect to Respondent Williams only," the 11th Judicial District nominating convention of the Working Families Party was not lawfully constituted because the delegates elected to that convention were not substantially in compliance with the proportional representation requirement of Election Law § 6-124 (NYSCEF Doc. 41 under Index No. 005089/2020). The Court then invalidated Williams' certificate of declination in the 24th Congressional District and, in a Decision and Judgment filed that same day in a companion Onondaga County action, Dadey v Balter, invalidated the subsequent substitution of Dana Balter to that vacancy (NYSCEF Doc. 20 under Index No. 005259/2020).

On September 17, 2020, Petitioners Joseph Nadel and Lawrence Garvey commenced this special proceeding pursuant to Election Law § 16-102, asserting — along with Respondent/Cross-Petitioner John Shanks — that this Court's finding in Dooher v Williams that the Working Families Party's 11th Judicial District nominating convention was not properly constituted should be applied to all eight candidates nominated at that convention, and that the subsequent declinations and substitutions of Respondents Goldfein, Sweet, Goroff and Reichlin-Melnick should therefore be invalidated. This Court executed an Order to Show Cause, and set a return date on the special proceeding for September 23, 2020.

Respondents Goroff, Sweet, Reichlin-Melnick, Cartright, Cohen, Goldliner, Schaeffer, and Atta-Mensah oppose the requested relief and move to dismiss the Petition, asserting that Petitioner Nadel has no standing, that the proceeding was not timely commenced, and that Petitioners failed to join all necessary parties. The Suffolk County and New York State Boards of Elections take no position with respect to the requested relief. There were no appearances by Respondents Steven Williams, Joshua Goldfein, John Haggerty or the City of New York Board of Elections (although the City of New York Board of Elections did file election records as directed in the Order to Show Cause).

II.

A Court presiding over a special proceeding under Article 16 of the Election Law must resolve all potentially dispositive procedural objections before addressing the underlying merits of the action (Castracan v Colavita, 173 AD2d 924, 925 [3d Dept 1991]). Here, Respondents move to dismiss the Petition and Cross-Petition based upon several potentially dispositive procedural defenses, including timeliness under the statute of limitations, standing of petitioner Nadel, and the failure to join necessary parties.

With respect to timeliness, Respondents Cartright, Cohen, Goldliner, Schaeffer, Atta-Mensah, Goroff, Sweet and Reichlin-Melnick argue that the Petition and Cross-Petition must be dismissed because they were not filed, and the proceedings were not fully instituted, within the strict 10-day statute of limitations under Election Law § 16-102(2). Petitioners contend that this Court is not constrained by that statute, and may exercise jurisdiction and grant a declaratory judgment or relief under CPLR Article 78. However, the authority of a court to preside over election law matters "is limited to the powers expressly conferred by statute" (Scaringe v Ackerman, 119 AD2d 327, 328 [3d Dept 1986] affd 68 NY2d 885 [1986]). Accordingly, "[w]hen a party seeks judicial intervention in the election process characterization of the proceeding or relief as pursuant to CPLR Article 78 will not enable intervention in the election process when it would not otherwise be available under the Election Law" (New York State Comm. of the Independence Party v New York State Bd. of Elections, 87 AD3d 806, 810 [3d Dept 2011]).

Here, Petitioners ask the Court to invalidate Goldfein and Sweet's certificates of nomination, filed on August 10, 2020 (NYSCEF Doc. 1, ¶¶ 72, 73), as well as their subsequent declinations, and direct the respective Boards of Elections to remove Sweet and Goldfein as candidates for judicial office and name them, instead, as candidates for State Senate and Congress (NYSCEF Doc. 1, ¶ 78). The basis for the Petitioners' request is that the Working Families' Party's judicial nominating convention was not properly constituted, which is, as Respondents argue, a direct challenge to the judicial nominating convention (see e.g. Thomas v Turco, 43 AD3d 617 [3d Dept 2007]). Election Law § 16-102(2) requires that all challenges to a judicial convention be commenced within 10 days of the filing of the certificate of nomination (see Murray v Lord, 46 AD2d 721 [4th Dept 1974] [applying prior Election Law § 330, the predecessor to Election Law § 16-102]) affd 35 NY2d 737 [1974]; Scaringe, 119 AD2d 327).

While Petitioners attempt to characterize this proceeding as seeking a declaratory judgment or Article 78 relief, they are actually asking for a ruling on the validity of certificates of nomination, declination and substitution, and an order directing that certain candidates be added [*3]and removed from ballots, which are without question election law matters. As such, this Court must analyze the Petition and Cross-Petition under the strict time requirements of Article 16 of the Election Law. Accordingly, since all of the proceedings in this action were commenced more than 10 days after the certificate of nomination was filed, the claims in the Petition and Cross-Petition are barred by the statute of limitations prescribed in Election Law § 16-102.[FN1]

III.

Petitioners also characterize the judicial convention and the cascading ballot line substitutions as a political sham, urging this Court to intervene and prevent post-primary maneuvers in various contested elections across the state. Under the Election Law, a candidate for a public office may decline a party's designation after a primary election (thus creating a ballot line vacancy to be filled by the party) only in certain limited circumstances, such as the candidate's subsequent nomination for another public office (Election Law § 6-146[4]). Since judicial nominating conventions are held after primary elections, they offer an opportunity for strategic post-primary planning. It is now common for political parties to name attorneys admitted to practice law in New York as placeholder candidates in non-judicial races where a contested primary is anticipated, in order to later nominate the placeholders as candidates to the State Supreme Court, creating a vacancy that can then be filled by primary contest winners. Consequently, these placeholding attorneys are routinely nominated at judicial conventions — often in judicial districts far from their homes and law offices — with absolutely no intention of either campaigning for judicial office or serving the voters of the district in which their name will appear on the ballot.

While this process may erode public confidence in the independence of the judiciary and the integrity of judicial elections, as well as potentially mislead voters as to whom is actually running for judicial office in general elections, it is widely used by political parties to maneuver candidates and realign general election ballots across the state based on the outcome of the preceding primaries. Over 40 years ago, the Court of Appeals held that absent clear and convincing evidence of a scheme to deceive voters or members of the involved party, which has not been presented here, these practices must be tolerated by this and all other courts, until the Legislature takes action (Mahoney v May, 40 NY2d 906 [1976]; CPLR 3016[B]). As such, this Court is limited in its jurisdictional reach, constrained to its analysis under Article 16 of the Election Law, above, and the Petition and Cross-Petition must be dismissed.

IV.

Accordingly, after consideration of all of the papers filed in this action and the argument [*4]of counsel for the parties, and upon due deliberation, it is hereby

ORDERED that Respondents Justin Sweet and Elijah Reichlan-Melnick's motion to dismiss the Petition (NYSCEF Motion No. 3) is GRANTED, in its entirety; and it is further

ORDERED that Respondents Valerie M. Cartright, Bob Cohen, Judith Goldliner, Kenneth Schaeffer and Afua Atta-Mensah's motion to dismiss the Petition (NYSCEF Motion No. 4) is GRANTED, in its entirety; and it is further

ORDERED that Respondent Nancy Goroff's motion to dismiss the Petition (NYSCEF Motion No. 5) is GRANTED, in its entirety; and it is further

ORDERED and ADJUDGED that the Petition (NYSCEF Motion No. 1) is DISMISSED, in its entirety and as against all Respondents, with prejudice; and it is further

ORDERED and ADJUDGED that the Cross-Petition (NYSCEF Motion No. 2) is DISMISSED, in its entirety and as against all Petitioners and Respondents, with prejudice.

ENTER.

Dated: September 24, 2020

HON. SCOTT J. DELCONTE, J.S.C. Footnotes

Footnote 1: In addition to this proceeding being untimely under Election Law § 16-102, Respondents also correctly argue in support of their motions to dismiss that Petitioner Nadel lacks standing as an objector. Nadel's objection was not filed with the Suffolk County Board of Elections until September 14, 2020, long after the deadline to object to the certificates of nomination, declination and substitution had passed (Election Law § 6-154[2]). Furthermore, as advanced by Respondents, the Petition fails to name the chair and secretary of the Working Families Party 11th Judicial District judicial nominating convention, necessary parties in an action challenging a judicial convention (Snell v Young, 88 AD3d 1149, 1150 [3d Dept 2011]).