Opinion
4697-18
08-09-2018
In the Matter of the Application of Floyd D'ANGELO, Joseph M. Malichio, Theresa M. Hoffman, Kelly K. Primavera, Colin C. Mitchell, Cindy M. Trimble, and James D. O'Donnell, aggrieved candidate for Congress, Petitioners, v. Sean Patrick MALONEY, Candidate, and Gregory Peterson, Peter Kosinski, Douglas Kellner and Andrew Spano, Commissioners Constituting the New York State Board of Elections, Respondents
JOHN CIAMPOLI, ESQ., Attorney for Petitioners 1196 Bernard Street, Valley Stream, New York 11580 MARTIN E. CONNOR, Attorney for Candidate Respondent Maloney 61 Pierrepont Street, No. 71 Brooklyn, New York 11201 BRIAN L. QUAIL, KIMBERLY A. GALVIN, Counsel for Respondent New York State Board of Elections 40 North Pearl Street, 5th FloorAlbany, New York 12207-2729
JOHN CIAMPOLI, ESQ., Attorney for Petitioners 1196 Bernard Street, Valley Stream, New York 11580
MARTIN E. CONNOR, Attorney for Candidate Respondent Maloney 61 Pierrepont Street, No. 71 Brooklyn, New York 11201
BRIAN L. QUAIL, KIMBERLY A. GALVIN, Counsel for Respondent New York State Board of Elections 40 North Pearl Street, 5th FloorAlbany, New York 12207-2729
Denise A. Hartman, J.
Petitioner James D. O'Donnell has been nominated by the Republican, Conservative, and Reform parties as a candidate for Member of the United States House of Representatives for the 18th Congressional District. Petitioners Joseph M. Malichio, Theresa M. Hoffman, Kelly K. Primavera, Colin C. Mitchell, and Cindy M. Trimble allege that they are qualified to vote in the 18th Congressional District and New York Attorney General elections. Respondent Sean Patrick Maloney is a candidate for Member of the House of Representatives in the 18th Congressional District, having won the nomination of the Democratic Party, Women's Equality Party, Independence Party, and Working Families Party. Mr. Maloney has also submitted a designating petition for the Democratic primary for the office of New York Attorney General.
Petitioners seek to invalidate Mr. Maloney's Congressional designating petitions and nominations. Initially, petitioners also sought to invalidate the New York Attorney General designating petition. By stipulation dated August 7, 2018, the parties agreed that petitioners "withdraw, with prejudice, so much of their Petition as seeks to invalidate the designating petition naming Respondent Sean Patrick Maloney as a candidate for Attorney General of the State of New York" In his answer, Mr. Maloney asserted untimeliness as an affirmative defense. Pursuant to the August 7, 2018 stipulation, the parties agreed that Mr. Maloney did not waive that defense.
The Court held a hearing and oral argument on August 7, 2018. The Court received into evidence certified Board of Election records. Counsel for the Board of Elections represented that the Board had certified Mr. Maloney's nominations for the 18th Congressional District on July 19, 2018. The Board's counsel confirmed that it takes no position on the merits of the proceeding. Petitioners introduced into evidence eight exhibits without objection. No party presented witnesses.
The petition alleges that Mr. Maloney's nominations for candidate for the 18th Congressional District were certified on July 12, 2018.
Petitioners argue that the offices of Member of Congress and New York Attorney General are incompatible because one cannot fulfill the obligations of both offices. Petitioners further argue that public policy forbids a candidate from running for two incompatible offices simultaneously. Mr. Maloney contends that the petition is untimely. He contends in the alternative that Election Law § 6-164 (5) provides a procedure by which he may, if he secures the Democratic nomination, decline the Congressional nominations. Petitioners argue in rebuttal that Election Law § 6-164 (5) was not meant to cover the situation before the Court, and that the statute did not affect precedent that forbids a candidate from campaigning for two incompatible offices.
Mr. Maloney has not demonstrated that petitioners’ main contention that he is unlawfully running for two incompatible offices is untimely. On the merits, however, petitioners have provided no authority that would allow for the relief they seek — invalidation of only the Congressional nominations. In any event, the plain language of Election Law § 16-164 (5), which provides a mechanism for declining a successive nomination, requires denial of the petition.
Background
On or before the April 12, 2018 deadline for filing petitions to be on the ballot for the June 26, 2018 18th Congressional District federal primary election, petitions were filed naming Mr. Maloney as a candidate for the nominations of the Democratic, Women's Equality, Independence, and Working Families Parties. Mr. Maloney did not decline any of the nominations before April 16, 2018, the statutory deadline for declining (see Election Law§ 6-158 [2] ). No other candidates filed designating petitions that would have entitled them to appear on the ballot for the June 26, 2018 primary election. This rendered unnecessary an election for these parties’ nominations, and Mr. Maloney became the parties’ candidate. Respondent the Board of Elections certified his nominations to run for Congressional office on July 19, 2018.
Meanwhile, former Attorney General Eric T. Schneiderman resigned on May 7, 2018. On or about June 4, 2018, Mr. Maloney announced that he would seek the Democratic nomination for Attorney General. On July 14, 2018, Mr. Maloney filed a designating petition to compete in the September 13, 2018, Democratic Party primary for the office of New York Attorney General. Petitioners filed objections with the Board on July 18, 2018, and commenced this proceeding on July 23, 2018.
Respondent Has Not Demonstrated That the Petition Is Untimely
Respondent argues that the petition before the Court is untimely because petitioners did not commence this proceeding within 14 days of the last day to file designating petitions for the Congressional nominations (April 26, 2018) as required by Election Law § 16-102 (2). Because petitioners’ essential claim is that Mr. Maloney is unlawfully running for two offices at once—a claim that arose after he filed his designating petition for the office of Attorney General—the Court is unpersuaded by respondent's argument.
"A proceeding with respect to a [designating] petition shall be instituted within fourteen days after the last day to file the petition" ( Election Law§ 16-102 ). The time limitations for filing of nominating petitions set forth in the Election Law must be strictly construed (see Matter of Baker v Monahan , 42 NY2d 1074 [1977] ). Such time limitations are "absolute and not a matter subject to the exercise of discretion by the courts" (Matter of Carr v New York State Bd. of Elections , 40 NY2d 556, 559 [1976] [internal quotation marks omitted]). Likewise, "[f]ailure to comply with the statutory time period [for commencing a proceeding to invalidate designating petitions] is a jurisdictional defect" (Matter of Loucky v Buchanan , 49 AD2d 797, 797 [4th Dept 1975] ; see Matter of Miller v Canary , 133 AD2d 199, 200 [2d Dept 1987] ).
Here, the designating petitions for party nominations for Member of the House of Representatives were filed on April 12, 2018. Petitioners did not file their objections with the Board until July 18, 2018, and commenced this proceeding on July 23, 2018. Thus, to the extent that the petition seeks to invalidate the Congressional designating petitions, it is untimely.
At oral argument, Mr. Maloney's counsel conceded that the proceeding was timely to the extent that it challenged his designating petition for New York Attorney General. But petitioners have withdrawn so much of the petition as seeks to invalidate the New York Attorney General designating petition.
But petitioners’ essential claim is not that the Congressional designating petitions were invalid when filed, but that, when Mr. Maloney began to run for two incompatible offices simultaneously, the Congressional nominations were rendered invalid. Respondent has presented no authority for the proposition that a challenge to the ultimate party nomination based on incompatibility of offices is bound by Election Law § 16-102. Indeed, facts giving rise to the challenge here did not exist until well after the expiration of the § 16-102 limitation period (cf. Matter of Burns v Wiltse , 303 NY 319, 322 [1951] [candidate not required to file written objections when he could not have done so because the certificate of nomination had not been filed]). The petition designating Mr. Maloney as a candidate for the New York Attorney General primary election were filed with the Board on July 14, 2018. And Mr. Maloney was not certified as party candidate for the 18th Congressional District general election until July 19, 2018. This proceeding was commenced four days later. Thus, the Court rejects respondent's argument that the petition must be dismissed pursuant to Election Law § 16-102 (2).
Arguably, petitioners’ dual candidacy challenge is premature because Mr. Maloney is not at this time seeking to run for two offices on the same ballot on the same election date. Mr. Maloney is not guaranteed to secure the Democratic nomination for Attorney General. If he does secure the nomination, as discussed below, he can decline his Congressional nominations pursuant to Election Law § 6-146 (5). Petitioners’ counsel conceded at oral argument that no provision of the Election Law authorizes Mr. Maloney to decline his Congressional nominations after Mr. Schneiderman's resignation on May 7, 2018, but before he receives the Democratic nomination for Attorney General (see Election Law §§ 6-158 [1], [2], 1-106 [2] ; Wiltse , 303 NY at 322 ; Matter of Ward v Mohr , 109 AD3d 694, 696-697 [4th Dept 2013] ).
Prohibition Against Simultaneously Running for Incompatible Offices
Petitioners rest their argument on longstanding decisions proscribing candidates from running for two incompatible offices at the same time. In its foundational decision, Matter of Burns v Wiltse , the Court of Appeals held that a candidate who had been nominated to run for the office of Jefferson County District Attorney could not be nominated to stand for election for the office of County Judge ( 303 NY 319 [1951] ). According to the Court, a dual nomination where the candidate would be ineligible to hold both offices would disenfranchise voters (see id. at 325 ). "An election under such circumstances would be illusory and sham if not an actual fraud upon the electorate and should not be permitted" ( id. at 326 ). And because the candidate had not declined the nomination for district attorney within the time prescribed by the Election Law, "[h]e may not relieve himself of the obligation to run for the office of District Attorney ... he must run" ( id. at 323 ).
The Court confronted a similar issue in Matter of Lufty v Gangemi , in which a candidate had submitted petitions designating him as a candidate in all 25 election districts "when he knew he could only serve as an elected County Committeeman from one district" ( 45 AD2d 939 [2d Dept 1974] [Shapiro, Benjamin, JJ, Dissenting], revd 35 NY2d 179 [1974] ). The Court of Appeals reasoned that "absent acceptable excuse or justification, the voters who signed the offending petitions must be assumed to have been misled as to the candidates’ intentions to serve as their representatives if designated and subsequently elected at the primary" ( Lufty , 35 NY2d at 182 ). Overruling state Supreme Court precedent that had allowed such candidates to continue to run in one election district rather than invalidating all petitions, the Court held that "the petitions must be considered to have been permeated with the defect intentionally introduced into them by the circulators and those candidates who participated in the circulation" (id.; see also Matter of Lawrence v Spelman , 264 AD2d 455, 456 [2d Dept 1999], lv denied 93 NY2d 813 [1999] ).
Lufty , however, does not stand for the proposition that when a candidate submits designating petitions for incompatible offices, all petitions must be invalidated. While the Court overruled two trial court decisions, it did not question the holding or result of Wiltse that allowed the first nomination to stand under the circumstances of that case.
Indeed, the Appellate Division rejected the argument that simultaneous candidacies for incompatible offices mandate invalidation of both candidacies in Matter of Phillips v Suffolk County Bd. of Elections (21 AD3d 509, 510 [2d Dept 2005], lv denied 5 NY3d 706 [2005] ). In that case, a candidate simultaneously submitted two sets of designating petitions: one for county legislator and a second for State Assembly Member. Four days after submitting the petitions, the candidate filed declinations for the county office (see id. at 510 ). The Appellate Division found that the candidate's "decision to run for the Assembly seat, and the subsequent overlap in circulating designating petitions, occurred as a result of [an] unexpected vacancy, not as a result of fraud" ( id. at 510 ). Because the candidate had not intentionally defrauded voters, invalidation of all designating petitions was unwarranted (id. ).
Election Law § 6-146 (5)Mr. Maloney rests his argument on Election Law § 6-146 (5). In 1976, more than two decades after Wiltse was decided, the Legislature re-codified the Election Law. In so doing, it replaced former § 139 with § 6-146 (see L. 1976, ch. 233, § 1). Subsection 5 of § 6-146 provides:
"A person who has been nominated for public office by a party or parties and who is thereafter nominated for another office by one or more of such parties, or who is thereafter nominated by the party to fill a vacancy caused by such nomination or nominations to fill a vacancy by the party, may decline such first nomination or nominations not later than the third day after the filing of the certificate of his nomination or nominations for such other office, but such a declination shall not be effective if such other nomination or nominations by the party is duly declined."
At a minimum, the parties agree, this statutory provision applies to the facts of Wiltse , where the candidate secured a party nomination and was then nominated by party committee for judicial office.
An attempted declination under Election Law § 6-146 was central to the analysis in Matter of Harper v New York State Bd. of Elections (34 AD3d 919 [3d Dept 2006] ). There, pursuant to Election Law § 6-146 (5), the candidate could have declined his earlier nomination for State Assembly after receiving the nominations of the Republican and Conservative parties for a Supreme Court Justice election (34 AD3d at 920 ). But, because the candidate's certificates of declination were not timely filed pursuant to Election Law § 6-146 (5), the court held that candidate's name was to remain on the ballot for State Assembly (see Harper , 34 AD3d at 920 ; cf. Matter of Faso v Hevesi , 298 AD2d 701, 701 [3d Dept 2012] [allowing party to nominate candidate to fill vacancy before vacating candidate files formal declination]).
Petitioners Are Not Entitled to the Only Relief They Seek
Having abandoned by stipulation their request to invalidate Mr. Maloney's New York Attorney General designating petition, petitioners seek only the invalidation of Mr. Maloney's Congressional nominations. But the caselaw on which petitioners rely does not support the relief they seek.
In Wiltse , a case involving successive nominations, the Court compelled the candidate to remain on the ballot for District Attorney — the first nomination — and invalidated his second County Judge nomination, reasoning that under the facts of that case, the electorate's interests were best protected by such a result ( 303 NY at 323 ). On the other hand, Lufty and Lawrence involved designating petitions for incompatible offices submitted at the same time under circumstances indicative of fraud, resulting in invalidation of both sets of designating petitions (see Lufty , 35 NY2d at 182 ; Lawrence , 264 AD2d 455 ; compare Phillips , 21 AD3d at 510 ). Thus, under Wiltse , the only result petitioners could achieve would be invalidation of Mr. Maloney's Attorney General designating petition. And under Lufty , the only result they could achieve is invalidation of both candidacies.
The Court rejects any argument that, if the law required invalidation of both the Congressional nominations and Attorney General validating petition, the Court could invalidate only the Congressional nomination based on the parties’ stipulation. According to the stipulation, "the fact that [petitioners] have withdrawn their claims against [Mr. Maloney's] Attorney General designation will not be a basis for the denial of their claims concerning the Congressional designation/nomination." Where a court finds that a candidate is improperly running for incompatible offices, whether one or both candidacies must be invalidated is a legal question for the court. If the decisional law requires invalidation of one or both candidacies, the litigant challenging the dual candidacy may not choose which nomination the court should invalidate. Even if petitioners had not withdrawn their challenge to Mr. Maloney's Attorney General designating petition, they would not have been entitled to invalidation of both candidacies. The situation here is analogous to Wiltse and Phillips , not Lufty and Lawrence . As in Wiltse , Mr. Maloney's nominations would not be simultaneous, but successive. As in Phillips , Mr. Maloney's "decision to run for" the Democratic nomination for Attorney General "and the subsequent overlap" with his submission of designating petitions for the Congressional elections and nomination thereon, "occurred as a result of [an] unexpected vacancy, not as a result of fraud" (id. ). Mr. Maloney filed his Congressional designating petitions on April 12, 2018. Mr. Schneiderman resigned on May 7, 2018.
In sum, caselaw does not provide for the invalidation of the latter of successive nominations. And while fraud can lead to the invalidation of all nominations or designating petitions, petitioners do not seek such relief. In any event, the facts of this case do not warrant invalidation of both the Congressional nominations and New York Attorney General designating petitions.
Successive Nominations Are Contemplated by the Election Law
Even if Wiltse , Lufty , and their progeny authorized the Court to invalidate Mr. Maloney's Congressional nominations only, the petition must fail because Election Law § 6-146 (5) contemplates that a candidate may receive a successive nomination and provides for declination of the initial nominations if done in a timely manner. Thus, while the parties agree that the offices of Congressional Representative and New York Attorney General are incompatible, Mr. Maloney's pursuit of the Democratic nomination for Attorney General does not now require invalidation of his existing Congressional nominations.
"A person who has been nominated for public office by a party or parties and who is thereafter nominated for another office by one or more of such parties ... may decline such first nomination or nominations not later than the third day after the filing of the certificate of his nomination or nominations for such other office" ( Election Law § 6-146 [5] ). The statute's language is broad. It does not limit its applicability to a particular method of party nomination or a particular office. If Mr. Maloney obtains the Democratic nomination for New York Attorney General, the statute on its face would allow him to decline the earlier nominations for Congress (see Harper , 34 AD3d at 920 ).
At the time Wiltse was decided, no statutory mechanism existed to allow the candidate to decline his initial nomination for District Attorney after he was later nominated by county committee for County Judge. The latter nomination would cause him to appear on the same ballot for two incompatible offices, thus rendering the election a "sham if not an actual fraud" ( 303 NY at 325 ). The Court therefore disqualified him from the latter judicial nomination and required him to remain on the ballot for District Attorney ( id. at 323 ).
But here, Mr. Maloney has not received the nomination that would place him on the same ballot for two incompatible offices. If he does receive the Democratic nomination to run for Attorney General, a statutory mechanism exists to allow him to decline the Congressional nominations in favor of the Attorney General nomination (compare Lufty , 35 NY2d at 182 ; compare also Lawrence , 264 AD2d at 456 ; Phillips , 21 AD3d at 510 ). In other words, a statutory release valve exists to avoid the sham of Mr. Maloney presenting himself on one ballot for two incompatible offices (cf. Harper , 34 AD3d at 920 ). Petitioners acknowledge that Election Law § 6-146 (5) provides a procedural mechanism for a candidate who has been nominated by a party to run for an office to decline that nomination outside the timeframes specified by Election Law § 6-158 when that candidate is later nominated by the party as its candidate for a different office. They argue, though, that the Legislature did not intend it to apply to the facts here where the federal and state primaries are now held on separate days only by virtue of federal court order (see United States v New York , 2012 US Dist LEXIS 10101 [ND NY Jan. 27, 2012, No. 1:10-cv-1214 (GLS/RFT)]). According to petitioners, because the Congressional and New York Attorney General primaries were held the same day when the Legislature enacted Election Law § 6-146 (5), and a candidate thus would have been precluded from simultaneously appearing on the ballot for both offices, Election Law § 146 (5) is inapplicable to successive elective nominations arising from sequential federal and state primaries. In the words of petitioner's counsel, the District Court changed the calendar, not the law. But the calendar change created a situation where there could be successive primary nominations for federal and state offices. Such successive primary nominations fall within the plain meaning of § 6-146 (5) (see Majewski v Broadalbin-Perth Cent. Sch. Dist. , 91 NY2d 577, 583 [1998] ), which contemplates successive nominations "for public office" and allows for timely declination. That the Legislature did not envision this precise scenario is not determinative — it could have specified the limited scenarios that would allow a candidate to decline a nomination under § 6-146 [5], but instead chose language that covered multiple successive nomination scenarios.
Finally, the Court is not insensitive to the electoral interests of the individuals who signed Mr. Maloney's designating petitions for Congressional office. The Legislature weighed such interests when it permitted declination of a nomination upon successive nominations. A timely declination would protect the electoral interests of party members because the ensuing vacancy for the initial nomination can be filled by party committee.
Accordingly, it is ORDERED that, to the extent the petition seeks to invalidate the designating petitions for the office of House Member for the 18th Congressional District, it is dismissed;
ORDERED that the petition is otherwise denied. This constitutes the decision and judgment of the Court. The original decision and judgment is being transmitted to Mr. Maloney's counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this decision and order does not constitute entry or filing under CPLR 2220 or 5016 and counsel is not relieved from the applicable provisions of those rules respecting filing and service.
Papers Considered
Order to Show Cause Dated July 23, 2018
Verified Petition
Verified Answer
Court's Exhibit 1 (Stipulation of Counsel Dated August 7, 2018)
Petitioners’ Exhibits 1—8
Respondent Board of Elections’ Exhibit A
Petitioner's Memorandum of Law
Respondent Maloney's Trial Memorandum of Law in Opposition