Opinion
No. 013109–10.
2010-08-9
Elizabeth BERNEY, Petitioner, v. Philip RAGUSA (individually and as Chairman of the Queens County Republican Committee (Ragusa Group) and the Queens County Republican Executive Committee (Ragusa Group); The Queens County Republican Committee (Ragusa Group), The Queens County Republican Executive Committee (Ragusa Group); The New York State Board of Elections; and James Milano, Respondents.
Vitor M. Serby, Esq., for Plaintiff. Joseph Dubowski, Esq., for Defendant Ragusa.
Vitor M. Serby, Esq., for Plaintiff. Joseph Dubowski, Esq., for Defendant Ragusa.
Darryl Fox, Esq., for Defendant Milano.
TIMOTHY S. DRISCOLL, J.
This matter is before the Court for decision on 1) the Order to Show Cause filed by Petitioner Elizabeth Berney (“Petitioner” or “Berney”) (Motion Sequence No. 1) on July 9, 2010, and 2) the Motion filed by Respondent James Milano (“Milano”) (Motion Sequence No. 2) on July 27, 2010, both of which were submitted on July 28, 2010. Petitioner's Order to Show Cause seeks to invalidate the designating petitions (“Designating Petitions”) filed with the Nassau County Board of Elections (“BOE”) designating Respondent Milano as a candidate for the Republican nomination for the Fifth Congressional District of New York in the primary election to be held on September 14, 2010. Milano's motion seeks dismissal of Petitioner's Order to Show Cause on the following grounds: 1) documentary evidence, 2) the statute of limitations and statute of frauds, 3) failure to state a cause of action, 4) lack of personal jurisdiction, 5) failure to join a necessary party, and 6) Election Law § 16–102. Based on the foregoing papers, as well as the oral arguments that were presented to the Court, the Court orders that Respondent Milano's motion is granted, and thus Petitioner's Order to Show Cause is denied, and the Petition is dismissed. A. Relief Sought
Petitioner moves for an Order 1) enjoining Respondents Philip Ragusa (“Ragusa”), the Queens County Republican Committee (Ragusa Group), the Queens County Republican Executive Committee (Ragusa Group) and Milano from taking any steps to vote for, provide, authorize, hold a meeting to authorize, issue, or file with the New York State BOE a special dispensation known as a “Wilson–Pakula” certificate, pursuant to § 6–120(3) of the New York State Election Law, on behalf of Milano, a registered Democrat, for the Republican primary (“Primary”) for Representative from the 5th Congressional District of New York (“District”), to be held on September 14, 2010; 2) declaring invalid, improper, insufficient, legally ineffective and in breach of agreement any purported Wilson–Pakula certificate purporting to designate Milano as a Republican candidate for Congress in the District for the Primary; 3) enjoining the New York State BOE from accepting and/or giving legal effect to any purported Wilson–Pakula certificate purporting to designate Milano as a Republican candidate for Congress in the District for the Primary; 4) requiring Ragusa, the Queens County Republican Committee (Ragusa Group) and the Queens County Republican Executive Committee (Ragusa Group) to specifically perform their agreed-to obligation to endorse and support Petitioner, and to cease supporting and endorsing Milano; and 5) permitting Petitioner to supplement her Petition with further grounds for a) invalidating any purported Wilson–Pakula certificate designating Milano as a Republican candidate for Congress in the District; and b) invalidating any Republican Designating Petitions naming Milano as a Republican candidate for Congress in the District.
1. Allegations in the Petition
a. Elizabeth Berney
In her Verified Petition (Petition”), Berney alleges, inter alia, as follows:
Berney is a candidate for Congress in the District, which is located partly in Nassau County and partly in Queens County. Petitioner is a registered Republican living in the District. The Nassau County Republican Committee and Nassau County Republican Executive Committee (“Nassau Republican Party”), whose chairman is Joseph Mondello (“Mondello”), have unanimously endorsed Berney's 2010 candidacy for Congress.
There are currently two (2) factions of the Queens County Republican Committee and Queens County Republican Executive Committee, one of which is charged by Chairman Bart Haggerty (“Haggerty”), the other of which is charged by Respondent Ragusa. Berney refers to these factions as the Haggerty and Ragusa Groups, respectively. The Haggerty Group unanimously endorsed Berney to run for Congress in 2010.
The Petition includes an outline of events in 2008 at which time, Berney alleges, Ragusa and the Ragusa Group made promises to her regarding their future support for her candidacy for Congress in 2010. The Petition also sets forth the manner in which Respondents violated those alleged promises. In light of the Court's conclusion, discussed infra, that any such promises are unenforceable, the Court will focus on the factual allegations related to Petitioner's other claims.
According to Berney, on May 19, 2010, the Nassau County Republican Committee and Nassau County Republican Executive Committee and Convention unanimously nominated and endorsed Berney to run for Congress in the District. On May 30, 2010, the Queens County Republican Party, Executive Committee, of which Haggerty is the chairman, unanimously endorsed Berney to run for Congress in the District.
Berney alleges that Ragusa and the Ragusa Group endorsed the candidacy of Milano, who lives outside of the District and is a registered member of the Democratic Party. As a registered Democrat, Milano may not run as a Republican without a Wilson–Pakula special dispensation (“Wilson–Pakula”). Berney alleges that Ragusa and the Ragusa Group have called a meeting (“Meeting”) at which they intend to provide Milano with a Wilson–Pakula. Berney asks the Court to enjoin any such dispensation, and declare any such Wilson–Pakula certificate to be invalid.
Berney alleges that she is entitled to relief because Haggerty did not receive the required notice of the Meeting and, had he received such notice, he would have voted against issuing a Wilson–Pakula to Milano. Berney also alleges that Milano collected Republican signatures on election petitions under false pretenses by falsely portraying himself as a Republican living in the District. b. Affidavit of Bart Haggerty
In his Affidavit in Support, Haggerty alleges that he was elected as Chairman of the Queens County Republican Committee at a meeting held on or about October 3, 2009. In addition, he states he was elected as Chairman of the Queens County Republican Executive Committee at a meeting held on or about October 8, 2009. On or about October 6, 2009, a certificate of election of officers was filed with the New York City and New York State BOEs naming Haggerty as the Chairman of the Queens County Republican Committee. On or about October 13, 2009, a certificate of election of officers was filed with the New York City and New York State BOEs naming Haggerty as the Chairman of the Queens County Republican Executive Committee. No challenge was made to that election.
On May 31, 2010, Haggerty claims to have presided at a meeting of the Queens County Republican Executive Committee at which time the Queens County Republican Executive Committee unanimously endorsed Berney to run for Congress in the District. The Nassau County Republican Committee and the Nassau County Republican Executive Committee, of which Mondello is chairman, also unanimously endorsed Berney's 2010 candidacy for Congress. Haggerty affirms that he did not receive formal notice of Ragusa's Meeting, that he was entitled to such notice and, had he received such notice, he would have voted against the issuance of a Wilson–Pakula to Milano.
2. Opposition of Philip Ragusa
a. Affidavit of Philip Ragusa
In his Affidavit in Opposition, Ragusa submits, inter alia, that 1) the Petition is defective because it failed to name necessary parties, specifically a) the Nassau County Republican Committee and its Chairman, Mondello, and b) the New York State Republican Committee and its Chairman, Edward Cox; and 2) Petitioner has failed to exhaust her administrative remedies.
Ragusa submits, further, that Petitioner has failed to allege any cause of action against Respondents Ragusa, the Queens County Republican Committee or the Queens County Republican Executive Committee. In support of that argument, Ragusa affirms that 1) as reflected by the Affidavit of David C. Previte (“Previte”), Counsel to the New York State Republican Committee/Party, which is attached to Ragusa's papers, Ragusa is the only recognized Chairman of the Republican Party in Queens County; 2) Ragusa was re-elected as County Chairman on October 3, 2009 and has served as Chairman to date; 3) Ragusa attended the State Republican Convention where he was recognized as the Queens Chairman, “[c]redentialed” (Ragusa Aff. at ¶ 14) as the only Queens Chairman and voted as the Queens Chairman; 4) in accordance with the practice of the Queens County Republican Party, a screening committee was established and interviewed potential candidates, including Berney, for the District election; 5) the screening committee recommended Milano as the proposed candidate and the County Executive Committee unanimously voted to endorse Milano; 6) in accordance with law and Republican Party rules, the Meeting was noticed and held on July 9, 2010 to nominate a candidate for the District election; 7) the Meeting was attended by Ragusa, members of the Queens County Executive Board and representatives of Mondello, who carried his proxy (Ex. B to Ragusa Aff.); 8) a vote was taken and Milano received the majority of those votes; and 9) an authorization was issued to Milano and filed with the BOE in Albany. Ragusa also denies making any promises to Berney regarding her candidacy in 2010.
Ragusa also affirms, upon information and belief, that Berney has obtained and filed sufficient petitions to position herself as a Republican candidate for the District election. Ragusa suggests that Berney's true motivation in filing this Petition is to avoid facing Milano in the Primary election. Ragusa submits that Berney is intimately familiar with the process, as she received a Certificate of Authorization in 2008 (Ex. C to Ragusa Aff.) to run for Congress in the District in 2008. b. Affidavit of David Previte
Previte affirms as follows in his Affidavit:
Previte is counsel to the New York State Republican Committee/Party. On information and belief, on or about October 3, 2009, at a biennial reorganization meeting, Ragusa was re-elected as Chairman of the Queens County Republican Party. The results of this election were communicated to the leadership of the New York State Republican Party, and filed as required under New York State Election Law. The New York State Republican Party has recognized Ragusa, and no one else, as Chairman and leader of the Queens Republican Party. Notably, at the Republican Party's State Convention, where candidates were nominated and endorsed, party rules were adopted and party matters were debated, Ragusa was solely recognized as Chairman of the Queens County Republican Party. Ragusa participated at the Convention in his capacity as Chairman, was recognized as Chairman, and no objection was made to his acting in that capacity.
Pursuant to Election Law § 6–120 and the rules of the New York State Republican Party, the Chairman of the New York State Republican Committee notified Mondello and Ragusa of the Meeting. On information and belief, the Meeting was convened and held pursuant to that notice and a certificate of authorization was issued authorizing Milano to enter the Republican Primary in 2010.
3. Additional Papers Submitted by Berney
In her Affidavit in Further Support, Berney submits that there was fraud involved in obtaining signatures for Milano's petition that provides grounds for invalidating the Wilson–Pakula and Milano's Designating Petitions. Berney affirms that, on information and belief, prospective signers were misinformed regarding Milano's residence and affiliation. Berney contends that a hearing is appropriate on these issues. Berney also alleges that Milano supporters have made false claims about her.
In her Affidavit in Opposition to Milano's motion to dismiss, Berney reaffirms her claims regarding alleged misrepresentations made to petition signers regarding Milano. Berney provides Affidavits of Yonatan Ginor, Elizabeth Wachen and Harry Wachen setting forth alleged improprieties in petitions signed on behalf of Milano. Berney also provides copies of Milano's petitions filed with the BOE, the objections thereto and, in her accompanying memorandum, documentation supporting her claim of improprieties in connection with Milano's petitions. B. The Parties' Positions
Petitioner submits, inter alia, that 1) the New York State Republican Party, Haggerty, the Queens County Republican Committee (Haggerty Group), the Queens County Republican Executive Committee (Haggerty Group), the Nassau County Republican Committee and the Nassau County Republican Executive Committee are not necessary parties within the meaning of CPLR § 1001; 2) assuming, arguendo, that the Court decides that these entities are necessary parties, Petitioner is prepared immediately to bring them into this case, and Haggerty and the Haggerty Group would consent to appear if the Court should so rule; 3) Ragusa's alleged promise to endorse Berney in the 2010 election does not violate the Statute of Frauds; 4) the Court should conduct a hearing in light of Petitioner's claims of fraud which include allegations of a) misrepresentations regarding Milano's residency b) possibly improper payments made by Milano at or about the time of the Wilson–Pakula authorization, and c) improper signatures on petitions; and 5) the Wilson–Pakula certificate is invalid because Haggerty, the ostensible Chairman of the Queens County Republican Committee and Queens County Republican Executive Committee, did not receive notice or the opportunity to vote at the Meeting.
The Board of Elections, as noted in its letter to the Court dated July 12, 2010, takes no position in this matter.
Milano submits that the Court should dismiss the Petition on the following grounds: 1) the Court should refrain from involving itself in the administration of a political party's administration; 2) Petitioner failed to name, serve and join necessary parties including a) the State Chair of the New York State Republication Party, who, upon information and belief, called the Meeting, b) the New York State Republican Party, whose rules Petitioner alleges have not been followed, and c) the members of the Party Committee who were authorized to issue the Certificate of Authorization that Petitioner now challenges; 3) the time to join those necessary parties has elapsed; 4) Petitioner has failed to specify the alleged irregularities of the signatures on Milano's petitions; and 5) Petitioner's claim that Respondents breached a prior agreement to endorse her in a future election is not actionable because any such promise or agreement is unlawful.
Finally, as noted above, Ragusa opposes the relief sought in the petition based on various grounds, including similar grounds to those set forth by Milano.
RULING OF THE COURT
1. The Petition Fails to Join Necessary Parties
CPLR § 1001, titled “Necessary joinder of parties,” provides as follows:
(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant. (b) When joinder excused. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider: 1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder; 2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined; 3. whether and by whom prejudice might have been avoided or may in the future be avoided; 4. the feasibility of a protective provision by order of the court or in the judgment; and 5. whether an effective judgment may be rendered in the absence of the person who is not joined.
Thus, the first question is whether necessary parties are absent from this case. Because Petitioner challenges whether the rules of the New York State Republican Party were followed, that entity, as well as the specific committee person(s) who acted under the rules, must appear as parties. See Jenkins v. BOE, 270 A.D.2d 436, 705 N.Y.S.2d 64 (2d Dept.2000). Fusco v. Spano, 275 A.D.2d 427, 713 N.Y.S.2d 126 (2d Dept.2000), app. den.,95 N.Y.2d 759, 714 N.Y.S.2d 709, 737 N.E.2d 951 (2000). Accordingly, the Court holds that the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula at issue here are necessary parties.
Jenkins involved petitioner Jenkins' application to validate her nomination as the Independence Party's senatorial candidate and to invalidate the nomination of another individual, Younger, for the same office. Younger appealed from that portion of the trial court's judgment that granted the branch of the petition seeking to invalidate Younger's nomination as the candidate and directed the BOE of the City of New York not to include Younger's name on the ballot. Id. at 437, 705 N.Y.S.2d 64. Concluding that the petition sought to challenge the actions of the Queens Interim County Organization of the Independence Party and the Executive Committee of the State Committee of the Independence Party, the Second Department held that those entities were necessary parties who should have been, but were not joined in the proceeding. Id. The Second Department held, further, that the proceeding was governed by the 10–day limitation period of Election Law § 16–102. Id. Thus, timely joinder of these entities as respondents in the proceedings was not possible, and the Second Department dismissed those branches of the petition seeking to validate the nomination of Jenkins and invalidate the nomination of Younger. Id.
Similar logic was applied in Fusco. There, the Second Department held that the trial court correctly dismissed the proceeding because petitioner failed to join the Interim County Organization/Steering Committee of the Westchester Independence County Committee, the entity whose actions and authority he sought to challenge. Id.
Guided by the principles set forth above, the Court concludes that the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula, whose actions Petitioner challenges, are necessary parties who should have been joined in this proceeding. Moreover, timely joinder of these entities is not possible, as the applicable statute of limitations expired, at the latest, on July 29, 2010.
2. This Action may not Proceed Without the Necessary Parties and must be Dismissed
The second question is whether, in light of the legal impossibility of joining these parties, the action may nonetheless proceed. In answering this question, the Court is guided by the five factors set forth in CPLR § 1001(b). As outlined below, these factors weigh heavily in favor of dismissal: A. Whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder
While it is true that denial of the Petition will result in Berney's inability to challenge Milano's presence on the primary ballot, Berney is not without the ability to become her party's nominee for the office she seeks. Thus, her ultimate “remedy”—election—is still readily available. B. The prejudice which may accrue from the nonjoinder to the defendant or to the person not joined
There is significant potential prejudice from Berney's failure to join the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula at issue here. Indeed, Berney challenges the fundamental process by which Milano secured a position on the primary ballot, but fails to name the very group and individuals intimately involved in that process who would be directly affected by a substantive decision by the Court in this matter. C. Whether and by whom prejudice might have been avoided or may in the future be avoided
Berney could have avoided this prejudice by naming the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula at issue here. Moreover, she clearly was on notice of both her ability and the potential necessity to do so, at the very latest, on July 15, 2010 which was the initial return date on the Petition. On that date, both the Court and Ragusa raised the issue of whether necessary parties were absent from this case. Berney took no action thereafter to join any other party, much less the parties that the Court deems are necessary to the relief that she seeks. D. The feasibility of a protective provision by order of the court or in the judgment
The Court concludes that the absence of the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula at issue here cannot be cured by a protective provision, as it would be inappropriate for the Court to issue such a provision in the absence of input from that party and those members, whose fundamental processes are at issue here. E. Whether an effective judgment may be rendered in the absence of the person who is not joined
Similar to the inappropriateness of a protective provision, the Court concludes that an effective judgment may not be rendered in the absence of the New York State Republican Party and members of that party's committee who issued the Wilson–Pakula at issue here. The Court believes it inadvisable to issue such a judgment in the absence of input from that party and those members, whose fundamental processes are at issue here.
3. Even if all Necessary Parties were Present or Otherwise Excused under CPLR 1001(b), the Petition Must be Dismissed Because it is an Attempt to Make an Untimely Challenge to the Election of the Queens County Republican Chairman
Pursuant to Election Law § 2–112, “every county committee shall within twenty days after its election ... meet and organize by electing a chairman, a secretary, a treasurer and such other officers as they may by their rules provide.” In turn, Election Law § 16–102, provides, inter alia, that a legal challenge with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within ten days from the “filing of the certificate of nominations made at such caucus or meeting of a party committee.”
The selection of the party committee is, of course, central to the ultimate selection of candidates to run for political office. Election Law § 6–120(3) provides for the process by which a potential candidate who is not a member of a party may nevertheless receive that party's designation as a candidate for office:
The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, unless the rules of the party provide for another committee, in which case the members of such other committee ... may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party as provided in this section.
Here, Ragusa asserts that he is chairman of the Queens County Republican Party, and asserts by affidavit of David Previte, counsel to the New York State Republican Party, that he was reelected to this position on or about October 3, 2009 at the Queens County Republican Party's biennial reorganization meeting. Haggerty makes a similar claim with respect to himself, asserting that he was elected chairman of the Queens County Republican Committee on October 3, 2009.
Petitioner's claim that Ragusa should not have been permitted to issue a Wilson–Pakula certificate would necessarily require the Court to determine that Ragusa is not authorized to provide such a certificate. This, in turn, would necessitate the Court determining whether Ragusa is in fact the chairman of the Queens County Republican Party. The time for Petitioner to initiate the proceeding that would result in that determination, however, has long passed as it is undoubtedly more than 10 days since the election of the Queens County Republican chairman.
Moreover, other than Haggerty's obviously self-serving affidavit, petitioner has failed to adduce competent written proof that Haggerty is the chairman of the Queens Republican Party, or that Ragusa is not the chairman. Such written proof is clearly required for a chairman to be duly recognized; Election Law § 2–112 requires that “[w]ithin three days after their meetings all state and county committees shall file in the office of the state board of elections a certificate stating the names and post office addresses of such officers.” In sum, the Petition, which relies on a time-barred challenge to Ragusa's purported election as chairman, itself fails to establish, by objective evidence, the validity of Haggerty's claim to the chairmanship. By contrast, Respondent Ragusa, who has no burden to prove the legitimacy of his claim to the chairmanship, has provided the affidavit of Previte which provides further evidence of Ragusa's chairmanship.
Without a determination of who is the chairman of the Queens County Republican Party, which is now time barred, the Petitioner cannot make a prima facie showing of the allegations central to her petition, namely, that the rules of the Republican Party were somehow violated by the granting of a Wilson–Pakula to Milano at a meeting attended by both Ragusa and Nassau County Republican Chairman Joseph Mondello.
4. The Alleged Promise Underlying Petitioner's Claims is Unenforceable
The Court rejects Petitioner's argument that any Wilson–Pakula certificate provided to Milano somehow violates a prior agreement by Ragusa in 2008 to support and endorse Milano in 2010. At the outset, the Court views any promise that Ragusa made in 2008 that could only be fulfilled in 2010 as unenforceable under the Statute of Frauds, as codified in General Obligations Law (“GOL”) § 5–701(a)(1), which requires that an agreement which by its terms is not to be performed within one year from the making thereof must be in writing. In addition, as pointed out by Respondent, such a promise could well violate the prohibition contained in Election Law § 17–102(9) that a person may not “[d]irectly or indirectly, by himself or through another person, receive [ ] money or other valuable thing, or a promise of a place of position, before, at, or after any primary election or caucus, or convention, for voting or refraining from voting for or against any person.” In short, it appears that Ragusa and Petitioner may have had conversations in 2008 regarding Petitioner's potential candidacy in 2010. Those discussions are not the basis of a legally cognizable cause of action regarding Petitioner's 2010 candidacy.
In light of the foregoing, the Court 1) denies Petitioner's Order to Show Cause; and 2) grants Respondent's motion to dismiss the Petition in its entirety. All matters not decided herein are hereby denied.
This constitutes the Decision and Order of the Court.