Opinion
005089/2020
09-04-2020
George DOOHER, Objector; John F. Haggerty, Jr., Objector; and Thomas V. Dadey, Jr., Chair of Party Committee, Petitioners, v. Steven WILLIAMS, Working Families Party Candidate for Member of Congress, 24th District of New York State, and Purported Working Families Party Candidate for Supreme Court Justice, 11th Judicial District of New York State; New York State Board of Elections ; New York City Board of Elections; Bright Limm, Secretary, Working Families Party 11th Judicial District Nominating Convention; and Julissa Bisono, Chair/Presiding Officer, Working Families Party 11th Judicial District Nominating Convention, Respondents.
Joseph T. Burns, Esq., for Petitioners George Dooher, John F. Haggerty, Jr., and Thomas V. Dadey, Jr. Alexander Rabb, Esq., Levy Ratner P.C., for Respondents Steven Williams, Bright Limm and Julissa Bisono William J. McCann, Esq. and Brian L. Quail, Esq., for Respondent New York State Board of Elections Stephen Kitzinger, Esq., Assistant Corporation Counsel for the City of New York, for Respondent New York City Board of Elections
Joseph T. Burns, Esq., for Petitioners George Dooher, John F. Haggerty, Jr., and Thomas V. Dadey, Jr.
Alexander Rabb, Esq., Levy Ratner P.C., for Respondents Steven Williams, Bright Limm and Julissa Bisono
William J. McCann, Esq. and Brian L. Quail, Esq., for Respondent New York State Board of Elections
Stephen Kitzinger, Esq., Assistant Corporation Counsel for the City of New York, for Respondent New York City Board of Elections
Scott J. DelConte, J. This is a special proceeding pursuant to Election Law § 16-102. Petitioner John F. Haggerty, Jr., seeks to strike Respondent Steven Williams' nomination as one of the Working Families Party's candidates for Supreme Court Justice in the 11th Judicial District (Queens County). Haggerty argues that the party did not elect delegates to its judicial convention in substantial compliance with the proportional representation requirement under the Election Law (only 12 of the party's 25 called delegates were actually elected), and that the elected delegates could not constitute a quorum. Joining Haggerty, Petitioners George Dooher and Thomas V. Dadey, Jr., seek to strike Williams' subsequent declination of the Working Families Party's earlier designation as its candidate for congress in New York's 24th District (Cayuga, Onondaga, Wayne and part of Oswego Counties). They argue, similarly, that the judicial convention was a legal nullity and, therefore, Williams' declination was invalid. For the reasons set forth below, including Williams' waiver of defenses relating to non-joinder of necessary parties and standing, the relief requested in the Verified Petition is GRANTED . I.
On August 10, 2020, the 11th Judicial District Convention of the Working Families Party filed a certificate of nomination that purported to nominate Respondent Williams and seven others as the party's candidates for the public office of Justice of the Supreme Court in the 2020 general election (NYSCEF Doc. 2). The Working Families Party had previously designated Williams as its candidate for congress in the 24th Congressional District. Williams accepted the judicial nomination and, on August 12, filed a certificate declining the congressional designation (NYSCEF Doc. 4). In response to the purported vacancy created by Williams' declination, the State Executive Board of the Working Families Party filed a certificate of substitution designating Dana Balter as the party's candidate in the 24th Congressional District.
Petitioners collectively challenge the certificates of nomination, declination and substitution in this and a related proceeding (Dadey et al. v. Balter et al. , Onondaga County Index No. 005259/2020), asserting that the underlying judicial nominating convention was not lawfully constituted and, therefore, any action taken by the convention delegates in support of Williams as a candidate for judicial office is a nullity. Petitioners further argue that since Williams' judicial nomination is without effect, his declination of the congressional designation is invalid, and no vacancy was created in the 24th Congressional District for which a substitution could be made.
II.
New York State Election Law § 6-124 governs the election, and composition, of delegates to a political party's judicial nominating convention. The statute provides that the delegates shall be elected by voters residing in the assembly districts within a judicial district, and specifically directs that:
The number of delegates and alternates, if any, shall be determined by party rules, but the number of delegates shall be substantially in accordance with the ratio, which the number of votes cast for the party candidate for the office of governor, on the line or column of the party at the last preceding election for such office, in any unit of representation, bears to the total vote cast at such election for such candidate on such line or column in the entire state.
Here, in its amended filing with the State Board of Elections, the State Committee of the Working Families Party called for 25 delegates and 25 alternates be elected by the enrolled members of the Working Families Party in the 18 assembly districts of the 11th Judicial District (NYSCEF Doc. 6). That call complied with the party's rule that each assembly district, or portion of an assembly district contained within the judicial district, shall elect one delegate and one alternate, with one additional delegate and one additional alternate delegate for every 1,000 votes or major fraction thereof cast on the Working Families Party line in the last preceding general election for governor in that portion of the assembly district contained within the judicial district (NYSCEF Doc. 6).
However, as certified by the State Board of Elections in the Working Families Party's official delegate roll (NYSCEF Doc. 7), only 12 of the 25 called delegates were actually elected, leaving two of the 18 assembly districts (the first and fifth largest districts measured by party voting strength) underrepresented, and nine of the 18 assembly districts (including the third largest district measured by party voting strength) completely unrepresented, with no convention delegates. Nevertheless, on August 6, 2020, delegates to 11th Judicial District Convention of the Working Families Party assembled remotely to nominate candidates for eight supreme court vacancies (NYSCEF Doc. 2). A single slate of eight candidates, including Williams, was approved; and, on August 10, 2020, the Working Families Party's certificate of nomination was filed with Respondent New York City Board of Elections (NYSCEF Doc. 2).
Upon stipulation of all participating parties on the record in open Court, the Court accepts as true that only seven of the elected delegates attended the virtual convention, with the minutes reflecting only that a majority of delegates were present (NYSCEF Doc. 2).
Petitioner Haggerty timely filed general objections and specifications to the certificate of nomination, asserting that the convention delegates did not constitute a quorum and, further, that the elected delegates did not satisfy the proportional representation requirement of Election Law § 6-124 (NYSCEF Docs. 33 — 34). The City Board of Elections did not sustain his objections (NYSCEF Doc. 40). Additionally, Petitioner Dooher timely filed general objections and specifications to William's certificate declining the Working Families Party's designation as its candidate for the 24th Congressional District, asserting that the declination was invalid because Williams' purported nomination as candidate for Supreme Court Justice was a legal nullity (NYSCEF Docs. 16 — 17). The Court is not aware of a ruling on Dooher's objection.
On August 17, 2020, Haggerty, Dooher and Dadey (as Chair of the Onondaga County Republican Committee) jointly commenced this special proceeding by Order to Show Cause seeking to invalidate Williams' judicial nomination and, accordingly, strike his declination of the congressional designation. Then, on August 22, 2020, Dooher and Dadey commenced a second proceeding (Dadey v. Balter , Onondaga County Index No. 005259/2020) by Order to Show Cause, naming Balter as a respondent and arguing that her substitution for Williams as the Working Families Party's congressional candidate in the 24th Congressional District is void because the party's 11th Judicial District convention was a nullity and, therefore, Williams' declination of the designation for the 24th Congressional District is invalid.
The Court granted both Orders to Show Cause, and set a briefing schedule and a consolidated hearing on September 2, 2020. Respondents Williams, Limm and Bisono answered, and opposed the requested relief. The New York State Board of Elections submitted an Answer but took no position on the requested relief. The New York City Board of Elections did not file an Answer and, aside from an unavailing objection to the Court's directives in its Order to Show Cause, is in default. Prior to the hearing, counsel for Petitioners and Respondent Williams were directed by the Court to file supplemental legal memoranda specifically addressing Petitioners' standing and the effect that the requested relief would have on the other judicial candidates identified in the challenged certificate of nomination.
Petitioners and, similarly, all Respondents are represented by the same counsel in both proceedings (except the New York City Board of Elections, which is a party only in this proceeding).
III.
Before considering the merits of Petitioners' challenges, all potentially dispositive procedural objections must be resolved ( Castracan v. Colavita , 173 A.D.2d 924, 925, 569 N.Y.S.2d 792 [3d Dept. 1991] ). Specifically, the Answer filed by Respondents Williams, Limm and Bisono raises two substantive affirmative defenses: lack of subject matter jurisdiction due to improper service, and lack of standing under Election Law § 16-102. In addition, the Court raised the issue of possible non-joinder of necessary parties under CPLR 1001(a).
With respect to the jurisdictional defense, the affidavit of service filed by Petitioners (NYSCEF Doc. 13) establishes prima facie that the required papers were served on all parties in compliance with the Order to Show Cause's directives, and Respondents offer no evidence to overcome this presumption ( Nunziato v. Messano , 87 A.D.3d 647, 647, 928 N.Y.S.2d 585 [2d Dept. 2011] ; Caci v. State , 107 A.D.3d 1121, 1123, 967 N.Y.S.2d 440 [3d Dept. 2013] ). Accordingly, this proceeding was properly and timely commenced by service and, therefore, the Court has jurisdiction.
Turning to standing, Dooher, Haggerty and Dadey filed a consolidated Petition challenging both the certificate of nomination for the 11th Judicial District and the certificate of declination for the 24th Congressional District. Haggerty claims standing to challenge the certificate of nomination as an objector enrolled to vote in the 11th Judicial District. Dooher and Dadey claim standing to challenge the certificate of declination as an objector enrolled to vote in the 24th Congressional District and as chair of a county committee in the 24th Congressional District, respectively (see e.g. Nicolai v. Kelleher , 45 A.D.3d 960, 961-62, 844 N.Y.S.2d 504 [3d Dept. 2007] ). At the hearing on September 2, 2020, counsel for the participating parties stipulated on the record in open court that the Petitioners, as consolidated here, have standing to challenge the actions of the nominating convention and the related internal affairs of the Working Families Party. The Court is therefore bound by this stipulation ( In re Petition of New York, L. & W.R. Co. , 98 N.Y. (53 Sickels) 447, 453 [1885] ) and, accordingly, Respondents Williams, Limm and Bisono's affirmative defense relative to the Petitioners' standing is deemed waived.
Finally, the Court raised, sua sponte , the issue of joinder of potential necessary parties since the certificate of nomination that Petitioners allege is a nullity nominates eight judicial candidates, seven of whom are not named as parties in this proceeding (see e.g. Manupella v. Troy City Zoning Bd. of Appeals , 272 A.D.2d 761, 763, 707 N.Y.S.2d 707 [3d Dept. 2000] ["Supreme Court also was within its discretion in dismissing the petition sua sponte for their failure to join that necessary party."] ). Joinder was raised in advance of the hearing, and the Court directed (NYSCEF Doc. 39) the parties to submit supplemental briefs addressing whether the rights of the seven other candidates would be inequitably affected by the ultimate relief requested by Petitioners, which would require their joinder pursuant to CPLR 1001(a) ( Fulani v. Smith , 181 A.D.2d 940, 941, 581 N.Y.S.2d 452 [3d Dept. 1992] ). Respondents Williams, Limm and Bisono did not submit a supplemental brief, but stipulated on the record in open court that the positions taken by Petitioners in their supplemental brief (NYSCEF Doc. 40) with respect to the rights of the non-parties were correct, waiving any objections to the non-joinder of necessary parties.
Specifically, Petitioners request, as amplified in their supplemental brief, a declaration that the judicial convention is a nullity, an order removing only Williams from the general election ballot as the Working Families Party candidate for Supreme Court Justice in the 11th Judicial District and, finally, an order invalidating Williams' certificate of declination as the Working Families Party candidate for 24th Congressional District. Petitioners do not request that the Court remove any of the seven other candidates nominated at the convention from the November ballot, nor does any party request that the Court direct a new convention pursuant to Election Law § 16-102(3), as was the case in Castracan, 173 A.D.2d 924, 569 N.Y.S.2d 792 [finding all parties on the certificate of nomination to be necessary parties] ) and Sahler v. Callahan, 92 A.D.2d 976, 460 N.Y.S.2d 643 [3d Dept. 1983] [finding all parties on the certificate of nomination to be necessary parties] ).
Here, all parties participating in this proceeding stipulated on the record in open court that the requested relief would affect only Williams' candidacy, and would not result in the entire certificate of nomination being declared void. Given the circumstances here and the course of litigation as charted by the parties, the Court is therefore satisfied that it may consider this particular certificate of nomination "as unique to each candidate for a particular public office or party position, [and as such] no other additional parties were necessary to these proceedings" (see Buchanan v. Espada , 88 N.Y.2d 973, 975, 648 N.Y.S.2d 426, 671 N.E.2d 538 [1996] [affirming the invalidation of a designating petition] ).
The remaining procedural issues raised by the Respondents in their papers have either been waived or are unavailing and, consequently, the Court may properly consider the merits of Petitioners' claims. IV.
Petitioners advance two arguments in support of their substantive position in this and the related proceeding. First, Petitioners assert that the judicial convention was not lawfully constituted because the delegates elected to the convention were not substantially in compliance with the proportional representation requirement of Election Law § 6-124 (see Diamond v. DeJoseph , 121 A.D.3d 1283, 1284, 995 N.Y.S.2d 263 [3d Dept. 2014] ). Second, Petitioners argue that the assembled delegates could not conduct any business because a majority of the maximum number of eligible delegates did not attend the convention as required by Election Law § 6-126(1) (see Meader v. Barasch , 133 A.D.2d 925, 521 N.Y.S.2d 113 [3d Dept. 1987] ).
Taking Petitioners' proportionality argument first, as counsel for Williams advocates, Election Law § 6-124 requires that the number of delegates from each assembly district (or portion of an assembly district) elected to a judicial nominating convention be "substantially in accordance with the ratio" of the number of votes cast in that assembly district for that party's gubernatorial candidate in the last preceding election relative to the total number of votes cast in that judicial district for that party's gubernatorial candidate in the last preceding election ( Diamond , 121 A.D.3d at 1284, 995 N.Y.S.2d 263 ). The purpose of this requirement is to ensure that the voters in each assembly district (or portion of an assembly district) are "properly represented in proportion to their voting strength" ( Azria v. Salerno , 68 N.Y.2d 887, 889, 508 N.Y.S.2d 933, 501 N.E.2d 582 [1986] ).
Here, while the Working Families Party Call (NYSCEF Doc. 6) directed that 25 delegates be elected in the 11th Judicial District across 18 assembly districts, only 12 delegates from nine assembly districts were actually elected and certified by the State Board of Elections (NYSCEF Doc. 7). The table below compares the Working Families Party Call, the State Board of Elections' official delegate roll, and the 2018 gubernatorial election results submitted to the Court (NYSCEF Doc. 8, which all parties relied upon in this proceeding, without objection, in their arguments regarding proportional representation). As reflected in the table, nine assembly districts (23, 28, 29, 32, 33, 35, 38, 39 and 40) were entirely unrepresented; and two assembly districts (34 and 26) were significantly underrepresented. In total, only voters residing in seven of the 18 assembly districts, comprising less than 42% of all voters (subject to rounding), were proportionately represented by the 12 elected delegates.
| Assembly District | Party Call | Elected Delegates | 2018 WFP Votes | % of Total 2018 WFP Votes | % of Voters Proportionately represented | % of Voters Unrepresented or Underrepresented | |
|---|---|---|---|---|---|---|---|
| 1 | AD 23 | 1 | 0 | 388 | 3.9 | 3.9 | |
| 2 | AD 24 | 1 | 1 | 334 | 3.4 | 3.4 | |
| 3 | AD 25 | 1 | 1 | 343 | 3.5 | 3.5 | |
| 4 | AD 26 | 2 | 2 | 535 | 5.4 | 5.4 | |
| 5 | AD 27 | 1 | 1 | 478 | 4.8 | 4.8 | |
| 6 | AD 28 | 2 | 0 | 865 | 8.7 | 8.7 | |
| 7 | AD 29 | 1 | 0 | 307 | 3.1 | 3.1 | |
| 8 | AD 30 | 2 | 2 | 775 | 7.8 | 7.8 | |
| 9 | AD 31 | 1 | 1 | 261 | 2.6 | 2.6 | |
| 10 | AD 32 | 1 | 0 | 294 | 2.9 | 2.9 | |
| 11 | AD 33 | 1 | 0 | 418 | 4.2 | 4.2 | |
| 12 | AD 34 | 2 | 1 (under) | 604 | 6.1 | 6.1 | |
| 13 | AD 35 | 1 | 0 | 258 | 2.6 | 2.6 | |
| 14 | AD 36 | 2 | 1 (under) | 1,439 | 14.5 | 14.5 | |
| 15 | AD 37 | 2 | 2 | 1,365 | 13.8 | 13.8 | |
| AD 38 | 2 | 0 | 534 | 5.4 | 5.4 | ||
| 17 | AD 39 | 1 | 0 | 453 | 4.6 | 4.6 | |
| 18 | AD 40 | 1 | 0 | 246 | 2.5 | 2.5 | |
| Total: | 25 | 12 | 9,897 | 99.8% | 41.3% | 58.5% |
Substantial compliance with Election Law § 6-124's proportional representation requirement means that "most [assembly] districts were properly represented in proportion to their voting strength" ( Azria , 68 N.Y.2d at 889, 508 N.Y.S.2d 933, 501 N.E.2d 582 ). Here, the evidence before the Court establishes that a minority (only seven) of the 18 assembly districts, comprising a minority (less than 42%) of the total number of voters, were properly represented in proportion to their voting strength. While no Appellate Court has prescribed a bright-line rule or established a specific threshold to determine how many assembly districts comprising a total minimum percentage of voters are necessary to meet the proportional representation requirement, substantial compliance requires, at the very least, that the proportionally represented assembly districts cumulatively comprise more than a majority of the total number of voters in the judicial district (see Bruno v. New York State Bd. of Elections , 208 A.D.2d 877, 618 N.Y.S.2d 75 [2d Dept. 1994] [assembly districts comprising "about 53%" of the total number of voters did not constitute most of the assembly districts]; Consuello v. McGrath , 21 Misc. 3d 1112[A], 873 N.Y.S.2d 510 [Sup. Ct., Albany Cty. 2008] [assembly districts comprising "62.6%" of the total number of voters did constitute most of the assembly districts] affd for reasons stated below 55 A.D.3d 1453, 864 N.Y.S.2d 925 [3d Dept. 2008] ).
Here, the Working Families Party's 12 delegates elected to convene as a judicial nominating convention did not proportionately represent assembly districts comprising more than a majority of the total number of the party's voters. Further, nine of the 18 assembly districts (including the third largest district measured by party voting strength) were completely unrepresented, and the first and fifth largest assembly districts (measured by party voting strength) were substantially underrepresented. Therefore, applying the rule set forth in Azria , most of the assembly districts in the 11th Judicial District were not proportionately represented.
By including voters from the two underrepresented assembly districts, counsel for Williams argues that a slim majority of voters (54.7%) in the 11th Judicial District were represented by the 12 delegates. That argument is unavailing since the substantial compliance analysis is primarily concerned with proportionality, and all of the voters in those two assembly districts were not proportionately represented. Further, in Bruno the Appellate Division affirmed Special term's holding that a judicial convention was not in substantial compliance with the proportionality requirement where the assembly districts proportionately represented by delegates comprised "about 53%" of the total number of voters.
Accordingly, this Court is constrained to find that, with respect to Respondent Williams only, the 11th Judicial District Convention of the Working Families Party was not properly constituted as required under the Election Law, and the certificate of nomination with respect to Williams is a legal nullity.
Because the Court finds that the judicial nominating convention was not properly constituted, it does not reach the second issue raised by the Petitioners, namely, whether a majority of the maximum number of those eligible delegates in the official roll as certified by the State Board of Elections attended the convention (Consuello , 21 Misc. 3d 1112[A], 873 N.Y.S.2d 510 ), as required by Election Law § 6-126(1) in order for the Judicial Convention to convene. However, the minutes of the Judicial Convention (NYSCEF Doc. 2) affirm that a majority of those delegates were present, and the participating parties stipulated on the record in open court that at least seven of the 12 delegates on the certified roll were in attendance. Accordingly, were the Court to reach the question of whether a quorum had been present at the judicial nominating convention, it would find that it had, based upon the parties' binding stipulation.
V.
Since the 11th Judicial District Convention of the Working Families Party was not properly constituted, and its certificate of nomination is a legal nullity, Williams was not nominated as a candidate for Supreme Court Justice. Accordingly, Williams was not permitted under Election Law § 6-146(4) to file a certificate of declination as the Working Families Party's congressional candidate for the 24th Congressional District, and his purported certificate of declination is void.
VI.
Accordingly, after due deliberation, it is hereby
ORDERED that the Petition is GRANTED as Ordered below; and it is further
ORDERED AND ADJUDGED that Respondent New York City Board of Elections remove Respondent Steven Williams from the November 3, 2020 ballot as a Working Families Party candidate for the public office of Justice of the Supreme Court, 11th Judicial District; and it is further
ORDERED AND DECLARED that Respondent Steven Williams' certificate of declination as the Working Families Party candidate for the public office of Member of Congress, 24th Congressional District is void and of no legal effect; and it is further
ORDERED AND ADJUDGED that Respondent New York State Board of Elections restore and name Respondent Steven Williams to the November 3, 2020 ballot as the Working Families Party candidate for the public office of Member of Congress, 24th Congressional District.