Opinion
E2019003570
05-02-2019
In the Matter of the Application of Stephen CORRYN, Matthew Scarfia, Cheryl Dinolfo, Gregory J. Devlin, Petitioners, v. Adam BELLO, Joseph D. Morelle, Jr., Frank MacKay as Chairman of the New York State Committee of the Independence Party, William Bogardt as Secretary of the Executive Committee of the New York State Committee of the Independence Party, and the New York State Board of Elections, et al., Respondents. In the Matter of the Application of New York State Committee of the Independence Party, Executive Committee of the Independence Party, Frank M. McKay as Chairman of the New York State Committee of the Independence Party, William Bogardt as Secretary of the New York State Committee of the Independence Party, Adam J. Bello, Jessica L. Leary, Joseph D. Morelle, Jr., and Joseph L. D'Angelo, et al., Petitioners, v. New York State Board of Elections, Douglas E. French and Thomas Ferrarese as Commissioners of the Monroe County Board of Elections, Stephen Corryn as Chairman of the Monroe County Committee of the Independence Party, Lynellen P. Corryn as Secretary of the Monroe County Committee of the Independence Party, Cheryl Dinolfo, Gregory J. Devlin, and the Monroe County Independence Party, et al., Respondents.
Glennon Law Firm (Peter John Glennon, Esq. and Laura Figueras, Esq.) for Petitioner-Respondents Stephen Corryn, Matthew Scarfia, Cheryl Dinolfo, and Gregory J. Devlin; Greenberg Traurig, LLP (Robert M. Harding, Esq., Joshua L. Oppenheimer, Esq., and Cynthia L. Neidl, Esq.) for Petitioner-Respondents Adam J. Bello, Jessica L. Leary, Joseph D. Morelle, Jr., Frank McKay as Chairman of the New York State Independence Party, Frank MacKay and William Bogardt as Presiding Officers for the New York State Independence Party Executive Committee, and Joseph L. D'Angelo; Monroe County Law Department (Charles G. Johnson, Esq., of counsel) for Respondents Douglas E. French, Thomas Ferrarese, the Monroe County Board of Elections.
Glennon Law Firm (Peter John Glennon, Esq. and Laura Figueras, Esq.) for Petitioner-Respondents Stephen Corryn, Matthew Scarfia, Cheryl Dinolfo, and Gregory J. Devlin;
Greenberg Traurig, LLP (Robert M. Harding, Esq., Joshua L. Oppenheimer, Esq., and Cynthia L. Neidl, Esq.) for Petitioner-Respondents Adam J. Bello, Jessica L. Leary, Joseph D. Morelle, Jr., Frank McKay as Chairman of the New York State Independence Party, Frank MacKay and William Bogardt as Presiding Officers for the New York State Independence Party Executive Committee, and Joseph L. D'Angelo;
Monroe County Law Department (Charles G. Johnson, Esq., of counsel) for Respondents Douglas E. French, Thomas Ferrarese, the Monroe County Board of Elections.
John J. Ark, J.
I. Introduction
This case again pits the State Committee of the New York Independence Party against a county committee of the Independence Party over the designation of candidates running for strictly local political offices. This decision specifically addresses the implementation of Independence Party Rule Article III(4) which allows the State Executive Committee to take over the Monroe County Committee's "power to make a nomination, authorization ... for elections to public office."
Marafito v. McDonough , 153 AD3d 1123, 1123—26, 62 N.Y.S.3d 546, 547—549 (3rd Dept. 2017).
As detailed below, each candidate for the 2019 election of Monroe County Executive and County Legislator for the 17th District has been issued a presumptively valid Wilson-Pakula certificate of authorization by either the Monroe County (on February 15, 2019) or the State Executive (on April 6, 2019) Committees of the Independence Party. The dueling filed Wilson-Pakula designation petitions for Monroe County Executive presented 1,239 signatures for Bello and 1,559 for Dinolfo. The number needed to qualify was 773. This totals to nearly 2,800 registered Independence Party voters in Monroe County. Should any candidate prevail in his or her challenge to the opposing candidate's Wilson-Pakula authorization, there will not be an Independence Party primary for the Monroe County Executive and/or County Legislature's 17th District on June 25, 2019.
Regardless, there are going to be Independence Party primaries for two Monroe County Court positions.
II. Facts
On Friday, February 15, 2019, the Monroe County Committee for the Independence Party issued two separate certificates of authorization designating Cheryl Dinolfo and Gregory Devlin as Independence Party candidates for the public offices of Monroe County Executive and Monroe County Legislature for the 17th District, respectively, in the primary election to be held on June 25, 2019. The presiding officer for these certificates was Monroe County Independence Party Chairman Stephen P. Corryn.
On Saturday, February 16, 2019 — the day after the Monroe County Committee issued its certificates to Dinolfo and Devlin — the State Committee for the Independence Party ("State Committee") mailed to its members a "Notice of Winter State Committee Meeting" to occur four days later on Wednesday, February 20, 2019. That notice provided, in relevant part, "Purpose: To do party business." Chairman Corryn received this Notice in the mail on Thursday, February 21, 2019.
On Wednesday, February 20, 2019 — five days after the Monroe County Committee issued its certificates on behalf of Dinolfo and Devlin — the State Committee conducted a meeting in Albany County. At that meeting, the State Committee adopted a resolution ("Resolution") stripping the Monroe County Committee of its Wilson-Pakula powers and delegating that authority instead to the State Executive Committee. The full text of the Resolution stated:
Be it RESOLVED, that the State Committee pursuant to Article VI, section 11(b) delegates to the State Executive Committee the power to make nominations, authorizations, substitutions, or cross endorsements of candidate(s) for election to public office(s) in Monroe County. Be it further RESOLVED, that the Secretary transmit copies of this resolution to the State Board of Elections and the Monroe County Board of Elections.
The Resolution neither stated that it applied retroactively nor attempted to revoke actions already taken by the Monroe County Committee. The Resolution passed pursuant to Article VI, Section 11(b) of the Rules of the New York State Committee of the Independence Party ("Party Rules").
On April 6, 2019, the State Executive Committee issued a certificate of authorization designating Adam Bello and Joseph Morelle, Jr. as Independence Party candidates for the public offices of Monroe County Executive and Monroe County Legislature for the 17th District, respectively, for the primary election to be held June 25, 2019. Frank MacKay, the Chairman for the State Independence Party Committee, was the presiding officer for this certificate. The certificate took the form of a single-page certificate of authorization incorporating by reference a five-page list of numerous designees for various offices throughout Monroe County. The only differences between the names listed on the State Committee's new certificate and the certificates previously executed by the Monroe County Committee were the names of the candidates at issue in the present matter, to wit; Adam Bello replaced Cheryl Dinolfo and Joseph Morrele, Jr. replaced Gregory Devlin. Otherwise, the State Committee's new certificate duplicated the Monroe County Committee's previous certificates. The State's certificate lacked any reference to the pre-existing Monroe County Committee's certificates.
The parties agree that the last day to commence the present proceeding was April 18, 2019. Petitioner Corryn et al. filed his Verified Petition and unsigned order to show cause with this Court on April 17, 2019. On April 18, 2019 at approximately 9:30 AM, those documents were served upon Respondent Bello et al.
III. Procedural History
a. Procedural History and Summary of Parties' Contentions
Before the Court are two cross-petitions. Respondent-Petitioner Bello et al. 's petition was originally filed in Albany County Supreme Court. However, Petitioner-Respondent Corryn et al. moved for a change of venue to Monroe County, and Acting Supreme Court Justice Denise Hartman granted the motion. Bello et al. 's petition requests that this Court issue a declaratory judgment stating:
Respondent-Petitioner Bello et al. initially filed a cross-petition before this Court but voluntarily discontinued that petition pursuant to CPLR § 3217.
The State Committee's February 20, 2019 Resolution valid and binding.
The State Committee's April 6, 2019 certificates of authorization are valid and binding, and therefore the Monroe County Committee's competing February 15, 2019 certificates of authorization are invalid and not binding.
The Monroe County Board of Elections shall reject as invalid the Monroe County Committee's certificates of authorization.
The Monroe County Board of Elections shall recognize as binding the State Committee's certifications of authorization.
Respondent-Petitioner Bello argues that the Monroe County Committee's certificates of authorization are void because the Monroe County Committee lacked authority to issue them. The State Committee enacted a Resolution revoking the Monroe County Committee's power to issue Wilson-Pakula certificates, instead delegating that authority to the State Executive Committee. Because the Monroe County Committee's certificates of authorization on behalf of Dinolfo and Devlin are invalid, so too are the designating petitions, and the State-issued certificates favoring Bello and Morelle are therefore controlling.
Petitioner-Respondent Corryn et al. 's petition requests that this Court issue a declaratory judgment stating the following:
The certificates of authorization and corresponding designating petitions issued by the State Committee in favor of Bello and Morelle are invalid and not binding.
The Monroe County Board of Elections shall not recognize the State-issued certificates favoring Bello and Morelle.
The Monroe County Board of Elections shall not place Bello and Morelle's names on the ballots for the Independence Party in the upcoming primary election.
Article VI, Section 11(b) of the Rules of the New York State Committee of the Independence Party is invalid.
The State Committee's February 20, 2019 meeting and Resolution are invalid.
Petitioner-Respondent Corryn et al. claim that this case involves an illicit attempt by the State Committee to surreptitiously transfer the authorization power of Election Law Section 6-120(3) from the Monroe County Committee to the State Executive Committee. He claims that the April 8, 2019 certificate of authorization on behalf of candidates Bello and Morelle is invalid because the State Committee lacked authority to issue it.
The State Committee's authority to issue its April 6, 2019 certification derived from the Resolution adopted by the State Committee on February 20, 2019. Prior to that Resolution, the State Committee never issued a Wilson-Pakula certificate for a public office wholly within Monroe County, as all such certificates were issued by the Monroe County Committee. The reason for this is because, pursuant to Election Law Section 6-120(3), no other committee was designated by the party to issue certificates for Monroe County offices.
Petitioner-Respondent Corryn argues that the State Committee did not provide the requisite notice of the February 20, 2019 meeting per Election Law Section 2-114, which governs how parties may amend their rules. Section 2-114 requires five days' advanced notice of any proposed amendment to the rules of the party. Petitioner- Respondent Corryn asserts that Article VI, Section 11(b) of the Party Rules violates Section 2-114 because Section 11(b) contains no notice requirement. Because the State Committee violated this notice provision when passing the Resolution, the resulting certifications on behalf of Bello and Morelle are invalid.
Additionally, Petitioner-Respondent Corryn claims that the State Committee's certificates are invalid because the State Party violated Article III(4) of the Party Rules when it failed to provide ten days' notice of the February 20, 2019 meeting. The Notice of Winter Meeting was postmarked on February 16, 2019, and the meeting occurred four days later on February 20, 2019. Finally, Petitioner-Respondent Corryn submits that the State Committee's certificates are invalid because the State Party violated Article III(4) of the Party Rules when it conducted the meeting two days after President's Day (February 18, 2019). For these reasons, Petitioner-Respondent Corryn asserts that the State Committee's certificates of authorization for Bello and Morelle are invalid and, therefore, the designations are also invalid.
IV. Legal Analysis
a. Petitioner-Respondent Corryn et al. 's challenge to Adam Bello and Joseph Morelle, Jr.'s certificates of authorization and associated designation is not time-barred.
Respondent-Petitioner Bello et al. filed a motion to dismiss for lack of jurisdiction claiming this matter is time-barred under Election Law 16-102(2). The parties agree that the last day to timely commence this proceeding was April 18, 2019. At oral argument, Respondent-Petitioner Bello did not dispute that Petitioner-Respondent Corryn filed his verified petition and unsigned order to show cause with this Court on April 17, 2019 and placed the same documents in the mail to Respondent Bello et al. for delivery the next day. Respondent-Petitioner Bello did not dispute that those documents were delivered to Respondent-Petitioner Bello et al. at approximately 9:30 AM on April 18, 2019.
Despite agreeing that April 18, 2019 (the fourteenth day of the statutory time period) was the last day to commence the present action, Respondent-Petitioner Bello nevertheless argues that the challenge to the Resolution was time-barred under Section 16-102(2)'s ten-day statute of limitations. The Court agrees with this assertion.
Election Law § 16-102(2) provides, in relevant part: "A proceeding with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within ten days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee."
Respondent-Petitioner Bello also argues that this petition is time-barred under the Election Law's fourteen-day time limit ( Election Law § 16-102 ; Keane v. Clark , 43 AD3d 639, 640 [4th Dept. 2007] [challenge to designating petition and certificate of authorization must be instituted "within fourteen days after the last day to file the petition"]; Naples v. Swiatek , 286 AD2d 567, 567 [4th Dept. 2001] ). That argument is similarly without merit because Petitioner-Respondent Corryn commenced this action by delivering a verified petition and unsigned order to show cause to Respondent-Petitioner Bello et al. The hearing evidence established that those documents were physically delivered to Respondent Bello et al. at approximately 9:30 AM on the morning of April 18th, the same day on which this Court executed the order to Show Cause, before the statute of limitations expired. The executed order to Show Cause was mailed to respondents on April 18, 2019 and received the following day. Respondent-Petitioner Bello did not dispute these facts at the oral argument. Thus, the matter is not time-barred ( Notaro v. Lawley , 39 AD2d 1013 [4th Dept. 1972] ; Election Law § 16-116 ; Matter of Rumsey v. Niebel , 286 AD2d 564, 565 [4th Dept. 2001], citing CPLR § 304 ["a special proceeding is commenced by filing a petition"]; Matter of Angletti v. Morreale , 131 AD3d 808 [4th Dept. 2015] [sufficient service completed where petitioner effected physical delivery of verified petition to respondent within statutory time frame], aff'd 25 NY3d 794 [NY 2015] ).
Election Law § 16-102(2) provides, in relevant part: "A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later."
The Fourth Department has repeatedly interpreted the notice requirement of Election Law § 16—116 to " ‘call [ ] for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced’ " (Matter of Angletti v. Morreale, 25 NY3d 794, 797 [4th Dept. 2015] ).
Except as stated otherwise below, this Court finds that Petitioner-Respondent Corryn et al. timely commenced the present matter. Accordingly, this Court has jurisdiction to examine this case on the merits, and the Court sua sponte joins the two matters.
b. Both sets of Wilson-Pakula certificates are valid.
Jurisprudence cautions judicial restraint regarding internal issues of political parties. "Generally, courts will not interfere with the internal affairs of a political party" ( Master v. Pohanka , 10 NY3d 620, 624 [4th Dept. 2008] ). However, where there is "a clear showing that a party or its leaders have violated the Election Law or the party's own rules," then judicial action is appropriate ( Nitti v. Reilich , 153 AD3d 1131, 1132 [4th Dept. 2017], lv app. den. 29 NY3d 915 [NY 2017] ; Valin v. Adamczyk , 286 AD2d 566, 566 [4th Dept. 2001] ).
Election Law Section 6-120 governs the issuance of Wilson-Pakula certificates of authorization:
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 person as candidate for any office who is not enrolled as a member of such party as provided in this section ( Election Law § 6-120[3] ).
By default, Wilson-Pakula power rests with the local political committee ( Master v. Pohanka , 10 NY3d 620, 625 [NY 2008] ; see also Bankoski v. Green , 109 AD3d 690, 691 [4th Dept. 2013] ).
i. The Monroe County Committee's Wilson-Pakula certificates naming Dinolfo and Devlin are valid because they pre-dated the State Committee's Resolution.
The Monroe County Committee's certificates for Dinolfo and Devlin issued on February 15, 2019. The State Committee did not divest the Monroe County Committee of Wilson-Pakula authority until February 20, 2019. Therefore, at that time the Monroe County Committee's certificates issued, the Monroe County Committee retained full Wilson-Pakula authority under Election Law 6-120(3). The State Committee failed to timely challenge the Monroe County Committee's certificates ( Election Law Section 16-102[2] ; Stampf v. Hill , 218 AD2d 919 [3rd Dept. 1995] ). Thus, the Monroe County Committee- issued certificates are valid and binding.
ii. The State Executive Committee's Wilson-Pakula certificate naming Bello and Morelle is valid because the State Committee had authority to issue it.
Just as the Monroe County Committee's certificates of authorization are valid, so too are the State-issued certificates of authorization. The State's certificates for Bello and Morelle issued on April 6, 2019. Several weeks before that, on February 20, 2019, the State Committee passed the Resolution transferring Wilson-Pakula powers from the Monroe County Committee to the State Executive Committee. As a general legal proposition, the State Committee was entitled to take over the Monroe County Committee's Wilson-Pakula authority ( Election Law Section 6-120[3] ; Master v. Pohanka , 10 NY3d 620, 625 [NY 2008] ; see also Matter of Peluso v. Erie County Independence Party , 66 AD3d 1329, 1330-1331 [4th Dept. 2009] ; Matter of NYS Comm. Of the Independence Party et al. v. NYS Board of Elections et al. , 87 AD3d 806, 807 [3rd Dept. 2011], lv app. den. 17 NY3d 706 [2011] ; Conroy v. State Comm. of Indep. Party of New York , 10 NY3d 896, 898 [NY 2008] ; Lavell v. Baker , 153 AD3d 1135, 1136, 60 N.Y.S.3d 736, 738 [4th Dept. 2017].)
While the State Committee could theoretically assume the Monroe County Committee's powers, the State Committee violated Article III(4) of its own party rules when it failed to provide ten days' notice of the February 20, 2019 meeting (Matter of Marafito v. McDonough , 153 AD3d 1123 [3rd Dept. 2017] [where Executive Committee of State Independence Party violated its own rules by providing insufficient notice of a meeting, the resulting resolution and certificates of authorization were invalid] ). However, the Resolution nevertheless stands because the petitioners Corryn et al. did not challenge the meeting and Resolution within the ten-day statute of limitations (see Election Law § 16-102 ; Lehrer v. Cavallo , 43 AD3d 1059, 1061 [2nd Dept. 2007], lv app. dismissed and den. 9 NY3d 101 [NY 2007]). Given the lack of timely challenge to the February 20, 2019 Resolution, the State Executive Committee was therefore legally entitled to issue certificates of authorization as it did on April 6, 2019.
Independence Party Rule Article III(4) requires that "notice of the time and place of every meeting other than the organizational meeting shall be served by mailing a notice to each member not less than ten (10) nor more than thirty (30) days before such a meeting" (Rules of the New York State Independence Party , Article III[4] ).
iii. The State Committee's certificate did not nullify the pre-existing Monroe County Committee's certificates because the Resolution had no effect upon the Monroe County's certificates.
The Resolution occurred on February 20, 2019, after the Monroe County Committee's certificates issued, and the Resolution gave no indication that it applied any way but prospectively. It made no claim that it applied retroactively to past certifications the Monroe County Committee had already completed. Unlike the resolution adopted by the exact same political body (State Executive Committee of the New York Independence Party) in Marafito , the Resolution here made no attempt to revoke or rescind the preexisting Monroe County Committee certifications. Instead, the State Committee opted merely to file its own certificate, which was a valid exercise of its powers. The State Committee never timely challenged, per Election Law § 16-102(2), the Monroe County Committee's action of Wilson-Pakula certification of Dinolfo and Devlin. Nor did the Monroe County Committee take timely action against the State Committee's Resolution. Thus, the Court is left with two sets of certificates that are equally valid actions of the same political party. Accordingly, the sole remaining question is what occurs now that there exist two sets of valid certificates of authorization?
c. Both sets of candidates will appear on the primary ballot.
It is clear that the Monroe County Committee had authority to issue its Wilson-Pakula certificates on behalf of Dinolfo and Devlin when it did, as did the State Committee have authority to issue its Wilson-Pakula certificates on behalf of Bello and Morelle. If either party's request to invalidate the opposing candidate's certificate is granted, it will necessarily disenfranchise the nearly 2,800 total registered Monroe County Independence Party voters who have given clear, unchallenged expressions of their support for either Dinolfo and Devlin or Bello and Morelle. Since "the principal objective of the Election Law is to give the electorate a full and fair opportunity to express its choice among the candidates presented" (Matter of Reda v. Mehile , 197 AD2d 723, 724 [2nd Dept. 1993] [internal quotations and citations omitted] ), this Court would be "hard pressed to discern how invalidating" designated candidates for public office to compete in a primary "would accomplish that objective" (see Matter of Limpert v. Brandt , 165 AD3d 1469, 1471-1472 [3rd Dept. 2018] ).
At oral argument the Monroe County Election Commissioners established that it is permissible to have multiple Wilson-Pakula certificates for the same office, which this Court finds is the most equitable resolution in the present situation.
Thus, this Court finds that Bello, Morelle, Dinolfo, and Devlin are to be placed on the ballots as Independence Party candidates for the respective offices each seeks in the upcoming Independence Party primary election to be held on June 25, 2019.
Petitioner-Respondent Corryn et al. 's petition is hereby DENIED in its entirety.
Respondent-Petitioner Bello et al. 's motion to dismiss and petition are GRANTED in part and DENIED in part as follows:
GRANTED as to dismissing as untimely those portions of Petitioner-Respondent Corryn et al. 's petition that seeks invalidation of the State Committee's February 20, 2019 meeting and Resolution and Article VI(11)(b) of the Rules of the New York State Independence Party;
GRANTED as to declaring that the State Committee's February 20, 2019 Resolution is valid and enforceable;
GRANTED as to declaring that the State Committee's certificates of authorization (and designations) for Adam Bello and Joseph D. Morelle, Jr. to be candidates of the Independence Party for the offices of Monroe County Executive and Monroe County Legislature, 17th District, respectively, in the primary election to be held June 25, 2019 are valid;
DENIED as to declaring that the Monroe County Committee's certificates of authorization (and designations) for Cheryl Dinolfo and Gregory J. Devlin to be candidates for the Independence Party for the offices of Monroe County Executive and Monroe County Legislature, 17th District, respectively, in the primary election to be held June 25, 2019 are invalid;
DENIED as to enjoining the Monroe County Board of Elections from giving force and effect to the Monroe County Committee's certificate of authorization and the associated designation of Cheryl Dinolfo and Gregory J. Devlin as candidates for the Independence Party for the offices of Monroe County Executive and Monroe County Legislature, 17th District, respectively, in the primary election to be held June 25, 2019;
DENIED as to directing Commissioners of the Monroe County Board of Elections to accept the designations of Adam Bello and Joseph D. Morelle, Jr. as the sole candidates for the Independence Party for the offices of Monroe County Executive and Monroe County Legislature, 17th District, respectively, in the primary election to be held June 25, 2019;
Any requested relief inconsistent with this decision is hereby denied and any requested relief necessary to implement this decision is granted.
So ordered.