Green v County of Chautauqua

[*1] Green v County of Chautauqua 2021 NY Slip Op 21145 Decided on April 26, 2021 Supreme Court, Chautauqua County Keane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 26, 2021
Supreme Court, Chautauqua County

Norman P. Green LUZ TORRES, Petitioners,

against

County of Chautauqua, CHAUTAUQUA COUNTY LEGISLATURE, KATHERINE K. TAMPIO, CHARLES C. NAZZARO, ROBERT K. BANKOSKI, ROBERT W. WHITNEY, PAUL D. WHITFORD, CHRISTINE STARKS, LOREN T. KENT, Respondents.



EK1 2021 000447



Sean E. Cooney, Esq., Dolce Firm, Attorney for Petitioner, Brittany L. Penberthy, Esq., VanDette Penberthy LLP, Attorney for Petitioner, Stephen M. Abdella, Esq., Chautauqua County Attorney, Attorney for Chautauqua County Respondents and Loren T. Kent, Pro Se Respondent.
Lynn W. Keane, J.

FACTS AND PROCEDURAL HISTORY

Petitioners Norman P. Green and Luz Torres filed a petition under Article 78 of the CPLR seeking to prevent the Chautauqua County Legislature and its Democratic Caucus from appointing to the office of Elections Commissioner someone other than an individual recommended by the Chautauqua County Democratic Committee pursuant to Election Law §3-204.

In addition to the County of Chautauqua and the Chautauqua County Legislature, Petitioners named as Respondents the following: Katherine K. Tampio, the Clerk of the Legislature; and the members of the Democratic Caucus of the Chautauqua County Legislature; Charles C. Nazzaro, Robert K. Bankoski, Robert W. Whitney, Paul D. Whitford, and Christine Starks. Finally, Petitioners also named Loren T. Kent, the candidate for Elections Commissioner submitted by the Democratic Caucus of the Chautauqua County Legislature.

On April 27, 2016, Petitioner Norman P. Green ("Green") was reappointed Democratic Elections Commissioner by the Chautauqua County Legislature (hereinafter "County Legislature") for a four-year term commencing January 1, 2017 and ending on December 31, 2020.

On October 6, 2020, the Chautauqua County Democratic Committee (hereinafter "County Committee") filed a certificate of recommendation ("certificate") with the clerk of the County Legislature pursuant to Election Law § 3-204(1). The certificate recommended Petitioner Luz Torres ("Torres"), as Democratic Elections Commissioner for the term beginning January 1, 2021.

After the County Legislature failed to appoint Torres within sixty days of the filing of the certificate, on December 30, 2020 and again on January 4, 2021, the County Committee filed another certificate recommending Green as a different person for appointment to the position of Elections Commissioner.*

With the filing of the certificate on January 4, 2021, another sixty-period passed on March 5, 2021 with the County Legislature still having not made an appointment of a Democratic Elections Commissioner.

Prior to the County Legislature's regular meeting on March 24, 2021, the Democratic Caucus sponsored a resolution to appoint Respondent Loren T. Kent ("Kent") as Democratic Elections Commissioner. Petitioners filed a Show Cause Order resulting in this court temporarily enjoining and restraining the Respondents from filing a certificate of appointment of Election Commissioner pursuant to Election Law §3-201.

On March 29, 2021, the County Committee filed with the County Clerk an additional certificate which recommended Doris Parment ("Parment") as the Democratic Elections Commissioner.

On April 21, 2021, Petitioner Green resigned as Democratic Elections Commissioner and soon thereafter, announced his candidacy for elective office.

ISSUE

At issue is whether a County Legislature may, pursuant to Election Law §3-204, appoint an individual as Elections Commissioner where that person was not named in a timely and validly filed certificate of recommendation from the County Committee of a political party, which in fact named a different person; and where the legislative members of the same party repeatedly decline to appoint any of the individuals recommended by the County Committee.

Election Law §3-204, entitled "Elections Commissioners: appointment," in

pertinent part, reads as follows: "1. At least thirty days before the first day of January of any year in which a commissioner of elections is to be appointed, the chairman or secretary of the appropriate party county committee shall file a certificate of party recommendation with the clerk of the appropriate legislative party.*At oral argument, counsel for petitioners explained that a second certificate was filed out of concern that the certificate filed on behalf of Green on December 30, 20 may have contained a defect. No claim has been raised with regard to the timeliness or validity of any certificate."2. Party recommendations for election commissioner shall be made by the county committee or by such other committee as the rules of the party may provide, by a majority of the votes cast at a meeting of the members of such committee at which a quorum is present

"3. The certificate filed shall be in such form and contain such information as shall be prescribed by the state board of elections.

"4. Commissioners of election shall be appointed by the county legislative body Provided, however, that if a legislative body shall fail to appoint any person recommended by a party for appointment as a commissioner pursuant to this section, within thirty days after filing of a certificate of recommendation with such legislative body, then the members of such legislative body who are members of the political party which filed such certificate may appoint such person. If none of the persons named in any of the certificates filed by a party are so appointed within sixty days after the filing of any such certificate, then such party may file another certificate within thirty days after the expiration of any such sixty day period recommending a different person for such appointment. If a party fails to file a certificate within the time prescribed by this section, the members of the legislative body who are members of such party may appoint any eligible person to such office."

The parties agree that §3-204 of the Election Law is the controlling statutory provision. Yet, the parties sharply disagree on the outcome required when this standard is applied to the facts in the record, even though most, if not all, facts are not contested.

The following undisputed facts are controlling: (1) the County Committee fully and properly complied with §3-204 by timely filing a certificate recommending Luz Torres for the position of Elections Commissioner, (2) as of December 5, 2020, neither the County Legislature nor the Democratic Caucus had appointed Torres as Elections Commissioner, (3) the County Committee fully and properly complied with §3-204 by timely filing a certificate recommending Norman P. Green for the position of Elections Commissioner, (4) as of March 5, 2021, neither the County Legislature nor the Democratic Caucus had appointed Green as Elections Commissioner, (5) on March 24, 2021, the Democratic Caucus sponsored a resolution to appoint [*2]Loren T. Kent as Democratic Elections Commissioner, and the County Legislature adopted a resolution to appoint Loren T. Kent as Democratic Elections Commissioner, (6) on April 1, 2021, Green resigned as Elections Commissioner and soon thereafter announced his candidacy for elective office, and (7) on March 29, 2021, the County Committee filed with the Clerk of the County Legislature a certificate recommending Doris Parment for the position of Elections Commissioner.

In seeking to appoint Kent as Elections Commissioner, the Respondents reason that, after the two recommendations from the Democratic County Committee were not appointed, then the Chautauqua County Legislature and its Democratic Caucus have "joint authority" to appoint the Democratic Elections Commissioner. The Petitioners, however, contend that the authority of members of a party caucus to appoint any eligible person as Elections Commissioner, i.e., not a candidate certified by the County Committee, is limited to those instances where the County Committee has failed to timely or properly nominate a candidate as Elections Commissioner.

There is a dearth of relevant cases interpreting §3-204 of the Election Law. The cases cited by the parties are not controlling and none are directly on point.

Respondents urge the court to adopt the holding in Wood v County of Cortland, 72 AD3d 1447 (Third Dept. 2010), arguing that the facts there presented the exact same scenario as here. While it is true that in Woods, the County Legislature had members of the same party as the County Committee, and that the County Committee had made two separate recommendations for Elections Commissioner, there are still stark differences. Unlike the facts in this case, in Woods, the County Committee attempted to file an untimely and invalid third certificate on December 17, 2008, long after the legislature took no action on the second certificate filed on August 29, 2008. By any reading of the statute, and its default provisions, the County Committee's failure to submit a candidate within the time proscribed in the statute permitted the members of the legislative body who were members of the same party to "appoint any eligible person" to the office and the legislature did so on December 11, 2008. The County Legislature gained the statutory authority to appoint because the County Committee failed to comply with the provisions of §3-204.

In Martin v Reuning, 194 Misc 2d 701 (Sup. Ct., Alleghany County), the court applied the provisions of Election Law §3-204 to a uniquely different set of facts. There, the Democratic County Committee filed the names of two candidates for the position of Elections Commissioner in a timely and proper fashion. The County Legislature took no action on the recommendations. Finding it relevant that there were no members of the Democratic Party on the legislature, the court determined that there was no need for the County Committee to make repetitive submissions. The court deemed the process to be complete under §3-204 upon the filing of two certificates of recommendation and directed the legislature to choose between the two candidates recommended by the County Committee. The court noted the wording of the default provisions was in the singular when it referenced "person" and a "different person" with nothing to indicate a repetitive process. The court held that "[w}ere the law to be interpreted to allow for repetitive submissions it would be ignoring the constitutional requirement of article II, §8 and obviating the clear legislative intent of the statute." Id. at 707.

In Manning, the court engaged in a lengthy and instructive history of Election Law §3-204, the appointing statute. Any discussion of its history begins with article II, §8 of the New York Constitution (1894) which reads in part: "All laws creating, regulating, or affecting [Election Boards] shall secure equal representation of the two political parties All such boards and officers shall be appointed or elected in such manner, and upon the nomination of the representatives of said parties respectively, as the legislature may direct." (Emphasis supplied.) Bi-partisan supervision and control over the conduct of the Election Boards with the selection of an independent, responsible, and concerned representative designated by the party itself is a constitutional requirement. (See Matter of Northrup v Kirwan, 88 Misc 2d 255, 261-262, aff'd 57 AD2d 699)

Following a constitutional convention, the NYS legislature enacted Election Law §§30 and 31 in 1922 which remained in effect until 1971. Election Law formerly §31 provided for the recommendation of commissioners by "the respective chairmen of the county committees." In Matter of Ahern v Board of Supervisors of Suffolk County (17 Misc 2d 164, 168, 184 NYS2d 894) (Sup. Ct., Nassau County), rev'd on other grounds, 7 AD2d 538, 185 NYS 2d, 669, aff'd 6 NY2d 376, 189 NYS 2d 888, 160 NE2d 640 [1959]), Justice Meyer held that under the statute, the local legislature cannot be required to appoint a particular person, but cannot make an appointment that is not recommended to it on nomination by a party chairman involved. Justice Meyer went on to state (at 168), "The framers of the Constitution and the Legislature have thus wisely provided for bi-partisan supervision over the election machinery and in order to assure that a Board of Supervisors controlled by one party not be able to appoint a friendly member of the opposing party to do its bidding have given the party chairman alone or together with his executive committee the authority to nominate his party's representative on the board."

In 1971, (L 1971, ch. 389, §1), the NYS Legislature amended the statute to provide in pertinent part, "if such county legislative body shall fail or refuse to appoint any person recommended for appointment then the commissioners shall be appointed by the members who are of the same political party as is the committee chairman who made and filed such recommendation." Election Law former §30 [1].)

In 1976, §§30 and 31 of the Election Law were combined into §3-204. The newly created statute continued the requirement for appointment of the commissioner by members of the legislative body who are members of that person's party.

There was an initial amendment, former §3-204, which provided a default mechanism. If a party recommendation was not filed or if a recommendation was rejected, and there were no legislative members of the defaulting party, then the right to appoint any qualified and enrolled member of the defaulting party was granted to the legislative body as a whole, i.e., the representatives of the opposing party. Recognizing the potential problems that might result from this grant of power, the NYS Legislature almost immediately repealed the default mechanism. (L 1976, ch 234, §9).

In 1984, Election Law §3-204 was amended again (L 1984, ch 455, §1) to provide for the default mechanisms which remain in effect today and are relevant here. Under the statute, if the [*3]local legislative body shall fail to appoint any person recommended for appointment as a commissioner, the members of the legislative body who are members of the political party which filed the certificate may appoint "such person." Thus, the only person who may be appointed is the one recommended by the political party. However, if none of the persons named in any of the certificates filed by a party are appointed in 60 days, then the party may file "another certificate" within 30 days "recommending 'a different person' for such appointment." The procedure set forth in the statute again is clear: if one of the first persons recommended by the party is not appointed either by the full legislative body or by members of the party who are members of the local legislative body, then the party may submit "another certificate" designating "a different person." If the party committee does not timely submit any recommendation, the members of the legislative body who are members of such party may appoint any eligible person to the office.

Here, one or more of the Respondents, are attempting to champion the failure of the County Legislature to appoint either of the candidates recommended by the County Committee as grounds to trigger the default provision of §3-204, thereby permitting legislative members of the same party to appoint any eligible person. Such a result would be contrary to the legislative intent of the NYS Legislature and cannot be countenanced.

Contrary to Respondents' arguments, there appears to be no statutory or decisional authority allowing the County Legislature, or its Democratic Party Caucus, to appoint Mr. Kent as Elections Commissioner, where the County Committee has fully and properly complied with §3-204 by timely recommending Luz Torres, Norman P. Green, and Doris Parment. This is not a situation where the party's County Committee has failed to timely submit a recommendation. Had there been such a failure, then the "default provision" would have been triggered, allowing the County Legislature, and its Democratic Party Caucus members, to disregard the certificates of recommendation and appoint any eligible person to the office.

The framers of the NYS Constitution established, and the NYS Legislature codified, a concept for bi-partisan supervision over the election machinery and gave the party chairperson, alone or together with his or her executive committee, the authority to nominate their party's representative on the board.

In drafting the provisions of §3-204, the NYS Legislature carefully spelled out the method by which the County Committee, and not members of the County Legislature, would submit certificates of recommendations of candidates for Elections Commissioner. The statute recognized that an initial candidate might not be deemed suitable for appointment by the County Legislature and included language that would allow the County Committee to file another certificate recommending a different person. There is nothing in the NYS legislative history to § 3-204 to permit a scenario where the County Legislature could ignore, or at least, fail to act upon, timely and validly filed certificates of recommendation from the County Committee of a political party, and relying upon their own inaction, then proceed with nominating their own chosen candidate for Elections Commissioner. Their failure to act could actually become a success or a win because they would be able to appoint anyone they wanted.

It is horn book law that the rules of statutory interpretation require this court to interpret [*4]in a constitutionally permissible manner and to effectuate the purpose, spirit, and object of the statute under scrutiny. As evidenced by the history of Election Law §3-204, bi-partisan supervision and control over the conduct of the Election Boards with the selection of an independent, responsible, and concerned representative designated by the party itself is a constitutional requirement. Martin v Reuning at 707.

Therefore, this court determines and holds that under the facts of this case, Election Law §3-204 does not limit a County Committee to the submission of only two certificates of recommendation. This court does not adopt the holding in Martin v Reuning, finding that the facts in that case were unique and its holding is limited. In Martin, the County Legislature contained not a single member of the Democratic party and it served no purpose to require the Democratic County Committee to continue to file additional certificates. Here, there are members of the same party on the County Legislature, and the constitutional and statutory process is better served by allowing the County Committee to submit additional names of candidates in the hope that one might be deemed acceptable by the County Legislature. Deeming the process to be completed after only two names have been submitted does not allow for the unavailability of a candidate due to death, illness, or another change in circumstances.

Unless and until the NYS Legislature mandates a different result, this Court does not find it exceedingly onerous on the part of the County Committee to submit repeated certificates for review and approval by the legislature's caucus members. It has been said that reasonable minds can differ, and there is no better example of a healthy democracy than a system of checks and balances that rewards compromise.

Further, this court determines and holds that under the facts of this case, and in order to accomplish both the constitutional and legislative intent requiring that Elections Commissioners be appointed "upon the nomination of such representatives of said parties respectively," the County Legislature may only choose at its next regular legislative session as Democratic Commissioner of the Board of Elections any individual on whose behalf the County Committee has fully and properly complied with §3-204 by timely filing a certificate of recommendation. Should the County Legislature not select a candidate, then the County Committee is free to submit additional names of candidates in accordance with the provisions of Election Law §3-204.

Further, the court dismisses the petition against Mr. Kent in light of the parties havingstipulated that Mr. Kent is not a necessary person to these proceedings in his individual capacity, and the parties having agreed that the ruling of this court will not be affected if Mr. Kent is no longer a named Respondent.

In rendering this decision, this court is not addressing whether Green is disqualified under Election Law §3-200(6). The court has confined its inquiry to the application of Election Law §3-204.

ORDERED, that the Petitioners' Petition is GRANTED, in that Respondents are restrained and enjoined from appointing Kent, or any other person, to the position of [*5]Democratic Elections Commissioner in Chautauqua County, if that individual is not a person recommended by the Chautauqua County Democratic Committee in a certificate of recommendation that has been fully, properly, and timely filed under Election Law §3-204.

DATED: April 26, 2021

*submitted electronically

HON. LYNN W. KEANE, J.S.C.