Matter of Smith v Joseph

[*1] Matter of Smith v Joseph 2023 NY Slip Op 23134 Decided on April 28, 2023 Supreme Court, Albany County Hartman, 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 28, 2023
Supreme Court, Albany County

In the Matter of Christopher H. Smith, Petitioner,

against

Hebert Joseph and the ALBANY COUNTY BOARD OF ELECTIONS, Respondents. (Proceeding No. 1.)



In the Matter of CHRISTOPHER H. SMITH, Petitioner,

against

HEBERT JOSEPH and the ALBANY COUNTY BOARD OF ELECTIONS, Respondents. (Proceeding No. 2.)



Index No. 903342-23


Matthew J. Clyne, Esq.
Attorney for Petitioner 34-A Beacon Road
Glenmont, New York 12077

Coffey Law PLLC
Daniel W. Coffey, Esq.
Attorneys for Respondent Hebert Joseph
17 Elk Street
Albany, New York 12207

Greenberg Traurig
Robert M. Harding, Esq.
Joshua L. Oppenheimer, Esq.
Attorneys for Kathleen A. Donovan, Democratic Commissioner of Respondent Albany County Board of Elections
54 State Street, 6th Floor
Albany, New York 12207

Fusco Law Office
Adam Fusco, Esq.
Attorneys for Rachel Bledi, Republican Commissioner of Respondent Albany County Board of Elections
P.O. Box 7114
Albany, New York 12224 Denise A. Hartman, J.

Petitioner Christopher H. Smith is a designated candidate for nomination by the Republican Party and Conservative Party for Member of the Albany County Legislature, 39th Legislative District. Smith commenced these proceedings pursuant to Election Law § 16-102 seeking to invalidate the designating petition of respondent Hebert Joseph nominating him as the Democratic Party candidate for the same public office. For the reasons that follow, Joseph's designating petition is invalidated.

Background

On April 4, 2023, Joseph filed with respondent Albany County Board of Elections a designating petition containing signatures purporting to support his candidacy for the public office of Member of the Albany County Legislature, 39th Legislative District. Joseph's one-volume designating petition begins with a cover page displaying his name and address and identifying him as a candidate for that position. Thirty-three numbered signature sheets follow, each of which is titled "Democratic Party Designating Petition" with space for up to 10 signers. By the Court's count, 280 individuals signed the petition. Twenty-five sheets of the petition specify that the 225 signers to support Joseph's nomination by the Democratic Party to the Albany County Legislature.[FN1] But individuals who signed five sheets of the petition support the [*2]Democratic Party nomination of slates of candidates, including petitioner, for the positions of Delegate and Alternate Delegate to the 3rd Judicial District Convention (102nd Assembly District),[FN2] and those who signed three sheets support a slate of candidates for Democratic Party nomination to various public offices—Joseph is not included on that slate.[FN3]

On the day Joseph submitted his petition to the Board, Kathleen A. Donovan, the Democratic Commissioner of the Board, partially completed a prima facie review form indicating that the petition appeared "in compliance." No corresponding form was completed by Rachel Bledi, Republican Commissioner of the Board. By affidavit, Commissioner Bledi affirms that she discussed with Commissioner Donovan her concerns about irregularities in Joseph's petition. So concerning were these irregularities, Commissioner Bledi says, that she made known at an April 18, 2023 Board meeting her position was to invalidate Joseph's petition. But as the record reveals, the Board took no formal vote to validate Joseph's petition.

Smith commenced these two proceedings by orders to show cause seeking to invalidate Joseph's designating petition (see Election Law § 16-102 [1]). In proceeding No. 1 (index No. 903342-23), Smith contends that, because Joseph's petition for the legislative election improperly included signature sheets for other candidacies that must be filed in different offices, the entire petition is invalid (see id. § 6-134 [1]). In proceeding No. 2 (index No. 903529-23), Smith argues that Joseph's petition is invalid because it contains sheets bearing two executed witness statements in violation of Election Law § 6-132.

The Court held a hearing on April 24, 2023, during which the parties stipulated to consolidating these two proceedings and declined to offer testimony and evidence. Respondents joined issue, and the Board supplied a certified copy of its record, which consists of Joseph's designating petition and Commissioner Donovan's prima facie review form.[FN4]

Analysis

Sheets pertaining to other public offices are invalid; but they do not wholly invalidate Joseph's petition for legislative office.

Joseph's submission of eight sheets unrelated to his candidacy for the Albany County Legislature does not compel invalidation of his entire petition. To be sure, a petition that combines candidacies for multiple offices in an impermissible way is invalid in its entirety (see Election Law § 6-134 [1]; Matter of Moskaluk v Simpkins, 54 AD3d 533, 536-537 [3d Dept 2008], lv denied 11 NY3d 701 [2008]). But here, and unlike in Matter of Moskaluk v Simpkins (54 AD3d 533), the cover sheet indicates Joseph's petition supports only his candidacy for the Albany County Legislature and no other candidacy. And there is no dispute that a petition for that election is properly filed only with the Albany County Board of Elections (see Election Law § 6-134 [1]). In light of the cover sheet, the petition "does not intend to hide, bury or otherwise seek to designate additional candidates or combinations of candidates" other than Joseph, who is listed thereon (Matter of Potiker v Bohlke, 205 AD3d 1203, 1206 [3d Dept 2022]; compare [*3]Matter of Saunders v Egriu, 183 AD3d 1292, 1294 [4th Dept 2020], lv denied 35 NY3d 905 [2020]). As such, the Court will strike the eight nonconforming sheets from the petition, to wit, sheet Nos. 2, 3, 4, 6, 7, 25, 26, and 27 (see Matter of Potiker v Bohlke, 205 AD3d at 1207), but the designating petition itself is not invalid on this ground.

All signature sheets bearing two witness statements are invalid, leaving Joseph with an insufficient number of signatures to qualify for election.

All but three of the remaining 25 signature sheets bear two executed witness statements. Those sheets must be invalidated, for the Election Law does not permit two witnesses to authenticate the same signature sheet of a petition.

Election Law § 6-132 (2) mandates that each signature sheet of a party designating petition must include "a signed statement of a witness who is a duly qualified voter of the state, who is an enrolled voter of the same political party as the voters qualified to sign the petition" (hereinafter a party-voter witness). By executing the statement, the party-voter witness affirms that the signers subscribed to the statement on that form in that witness's presence and each signer identified himself or herself to the witness (see Election Law § 6-132 [2]). The statement also requires the party-voter witness to fill in the number of signatures on the form (see Election Law § 6-132 [2]).

The statute also provides that, "[i]n lieu of" the party-voter witness's statement, a notary public or commissioner of deeds (hereinafter a notary witness) may attest that each of the signers subscribed the sheet under oath and in the presence of the notary witness. That phrase in lieu of means "[i]nstead of or in place of; in exchange or return for" (Black's Law Dictionary [11th ed 2019], in lieu of; see Merriam-Webster.com Dictionary, lieu [https:// www .merriam-webster .com /dictionary /lieu] [defining "in lieu of" as "in the place of" or "instead of"]). It does not mean "in addition to." Thus, contrary to the position staked out by Joseph, the statute on its face authorizes use of only one of the prescribed authentication methods on the same sheet—not both.

Election Law § 6-132's one-witness command is a matter of content, not form, and it is well settled that " 'there must be strict compliance with statutory commands as to matters of prescribed content' " (Matter of McCrae v Forte, 208 AD3d 1290, 1292 [2d Dept 2022], quoting Matter of Hutson v Bass, 54 NY2d 772, 774 [1981]). And Joseph's petition presents many of the confusing irregularities wrought by not heeding those commands. For example, on sheet No. 10, the party-voter witness claims to have observed the ten signers who subscribed the sheet whereas the later-in-time notary witness affirms observing only nine. Then, on sheet No. 31 of the petition, the party-voter witness claims to have observed seven signatures—the actual number of signatures on that page—but the notary witness claims to have observed ten signatures. Further, on sheet Nos. 15, 16, and 22, the party-voter witnesses attested to observing all of the signatures on each of their respective sheets—even signatures dated after those witnesses' own attestations. Those sheets were also then executed by notary witnesses after the dates of the later-in-time signatures. But those notary witnesses also attested to observing (and swearing-in) every signer on their sheets, necessarily including the earlier-in-time signers that the respective party-voter witnesses had apparently already authenticated.

Simply invalidating signatures or excising pages with these between-witness facial discrepancies is not an option. As the Court of Appeals put it, "The substantive requirements of [Election Law §] 6-132 are designed to facilitate the discovery of irregularities or fraud in designation petitions" (Matter of Alamo v Black, 51 NY2d 716, 717 [1980] [internal quotation marks and citation omitted]). That design includes the one-witness command baked into the [*4]requirements of Election Law § 6-132 (3). And "deviation from [those] requirements in this case . . . would be taking the first step toward unraveling the carefully conceived legislative scheme" (id.). This the Court cannot do, and so it must decline Joseph's invitation to hold that "so long as either attestation is valid, the sheet has been properly authenticated."

Therefore, applying Election Law § 6-132 (3) to the circumstances of this case, all of the sheets bearing the signature of a party-voter witness and notary witness are invalid as a matter of law and must be struck from Joseph's designating petition (cf. Matter of Mills v New York State Bd. of Elections, 207 AD3d 943, 945 [3d Dept 2022]).[FN5]

Respondents' arguments in opposition are unavailing, starting with Joseph's correct observation that invalidating the entire petition is not warranted because Smith has not proved by clear and convincing evidence that the petition is a product of fraud or that Joseph is chargeable with knowledge of fraudulent activity (see Matter of Fatata v Phillips, 140 AD3d 1295, 1296-1297 [3d Dept 2016]; Matter of VanSavage v Jones, 120 AD3d 887, 888 [3d Dept 2014], lv denied 24 NY3d 901 [2014]). But Smith has not pleaded a claim of fraud, and, at the hearing, he expressly limited his challenge to legal questions. So, the issue of fraud is not before the Court.

Because there is no claim of fraud, Joseph's reliance on Matter of Vincent v Sira (131 AD3d 787 [3d Dept 2015], lv denied 25 NY3d 914 [2015]) is misplaced. There, the Third Department rejected a fraud claim for inadequate proof and declined to invalidate an entire petition when a candidate executed certain sheets as a notary witness rather than a party-voter witness (see id. at 788-789). But the candidate conceded that the 307 signatures on the improperly authenticated sheets were invalid. And indeed, Matter of Vincent v Sira augers in favor of the outcome here, for the Third Department went on to invalidate additional sheets based on nonfraudulent, material changes made to those sheets after they were executed by a witness (see id. at 789).

Nor must the Court presume the validity of Joseph's petition pursuant to Election Law § 6-154. Under the plain meaning of Election Law § 6-132, the sheets in Joseph's petition executed by a party-voter witness and notary witness are not "authenticated in a manner prescribed" by statute (Election Law § 6-154 [1]). Therefore, the presumption does not obtain (compare Lavell v Baker, 153 AD3d 1135, 1137 [4th Dept 2017], lv denied 29 NY3d 1100 [2017]).

Conclusion

By the Court's count, only 24 signatures remain on the three valid signature sheets left standing. This number falls far short of the 118 signatures that the parties do not dispute are [*5]required to qualify for the legislative election. Without the requisite number of qualifying signatures, the designating petition is invalid (see Election Law § 6-154 [1]).

Accordingly, it is

Ordered these two above-captioned proceedings are consolidated under index No. 903529-23, and the consolidated proceeding shall bear the following caption:

In the Matter of CHRISTOPHER H. SMITH,

Petitioner,

-against-

HEBERT JOSEPH and the ALBANY COUNTY BOARD OF ELECTIONS,

Respondents.

And it is

Ordered that the pleadings in the proceedings hereby consolidated shall stand as the pleadings in the consolidated proceeding; and it is

Adjudged that the petitions in the consolidated proceeding are granted; and it is

Adjudged that the designating petition of respondent Hebert Joseph for nomination by the Democratic Party for the public office of Member of the Albany County Legislature, 39th Legislative District, is invalidated.

This constitutes the Decision, Order, and Judgment of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for petitioner shall promptly serve notice of entry on all other parties entitled to such notice.

Albany, New York
April 28, 2023
Hon. Denise A. Hartman
Acting Justice of the Supreme Court

Papers Considered
Index No. 923342-23: NYSCEF Doc Nos. 1-13
Index No. 923529-23: NYSCEF Doc Nos. 1-15 Footnotes

Footnote 1:Sheet Nos. 1, 5, 8 through 24, and 28 through 33. Joseph avers that there are 226 signatures on these sheets. The difference between the Court's count and Joseph's count appears to stem from crossed-out names on sheet No. 10. Because the Court concludes that Joseph's petition is short of the 118 signatures required to qualify, the one-signature discrepancy is immaterial.

Footnote 2:Sheet Nos. 3, 4, 7, 26, and 27.

Footnote 3:Sheet Nos. 2, 6, and 25.

Footnote 4:Commissioner Donovan oppose Smith's petition; Commissioner Bledi supports it.

Footnote 5:In other contexts, unexplained witness statement irregularities in violation of Election Law § 6-132 compel invalidation of the offending signature sheets unless, among other things, the subscribing witness supplies an explanatory affidavit (see e.g. Matter of Mills v New York State Bd. of Elections, 207 AD3d at 945; Matter of Salka v Magee, 164 AD3d 1084, 1086, 1086-1087 & n [3d Dept 2018], lv denied 31 NY3d 914 [2018]; Matter of VanSavage v Jones, 120 AD3d 887, 888-889 [3d Dept 2014], lv denied 24 NY3d 901 [2014]). Although Joseph posits that the dual authentication here is innocent "belt and suspenders" surplusage, he has provided no affidavits or testimony supporting that proposition. The Court need not and does not reach the issue of whether dual authentication is similarly curable.