Opinion
03091/2019
08-20-2019
EH FUSION PARTY, Bonnie Brady, Elizabeth A. Bambrick, Dell R. Cullum, Richard P. Drew II, David Gruber, Michael Havens, Simon V. Kinsella, Rona S. Klopman, Stephen M. Lester, Fallon Nigro, David Talmage, and Susan M. Vorpahl, Petitioners, v. SUFFOLK COUNTY BOARD OF ELECTIONS, Commissioner Anita S. Katz and Commissioner Nick LaLota, Defendants.
RATCHSKO WALLACE PLLC, Attorneys for Petitioners, By: Jonathan Wallace, Esq., 30 Broad Street-14th Floor, New York, NY 10004 DENNIS BROWN, SUFFOLK COUNTY ATTORNEY, Attorneys for Respondents, By: Daniel E. Furshpan, Esq., 100 Veterans Memorial Hwy, P.O. Box 6100, Hauppauge, NY 11788-0099
RATCHSKO WALLACE PLLC, Attorneys for Petitioners, By: Jonathan Wallace, Esq., 30 Broad Street-14th Floor, New York, NY 10004
DENNIS BROWN, SUFFOLK COUNTY ATTORNEY, Attorneys for Respondents, By: Daniel E. Furshpan, Esq., 100 Veterans Memorial Hwy, P.O. Box 6100, Hauppauge, NY 11788-0099
Robert F. Quinlan, J.
The following papers numbered 1 - 72 were read on this petition:
Papers Numbered
Notice of Petition, Verified Petition, Affidavit of Davit Gruber with Exhibits A - D 1-25
Respondents' Affirmation in Opposition to Petition 26-28
Respondents' Verified Answer and Return 29-44
Respondents' Memorandum of Law in Opposition to the Petition 45-60
Affidavit of Rona Klopman 61-62
Petitioners' Reply Memorandum of Law 63-72
In this proceeding brought pursuant to Article 16 of the Election Law petitioners EH Fusion Party, Bonnie Brady, Elizabeth A. Bambrick, Dell R. Cullum, Richard P. Drew II, David Gruber, Michael Havens, Simon V. Kinsella, Rona S. Klopman, Stephen M. Lester, Fallon Nigro, David Talmage, and Susan M. Vorpahl ("petitioners") seek an order mandating and directing respondents validate their respective nominating petitions and place them on the general election ballot or in the alternative mandating and directing respondents accept petitioners nominations by the filing of Certificate of Substitution by Committee to Fill Vacancies and for declaratory judgment that imposing the Certificate of Acceptance requirement and/or any application of the remedy for ballot disqualification of Substitution by Committee to Fill Vacancy on political associations differentially violates Art. 1, Sec. 11 of the Constitution of the State of New York by denying equal protection of the laws.
The East Hampton Fusion Party is an independent body established to run candidates for various Town of East Hampton elective offices in the November 5, 2019 general election. Independent nominating petitions for sixteen EH Fusion Party candidates were timely filed with respondent Suffolk County Board of Elections ("the Board") on May 21, 2019 and May 28, 2019. Pursuant to EL § 6-146 the candidates were required to file with the Board a duly signed and acknowledged Certificate of Acceptance ("acceptance") no later than May 31, 2019. The Board sent each candidate a letter, dated May 21, 2019, notifying them of the deadline.
Petitioners Brady, Bambrick, Cullum, Drew, Gruber, Havens, Klopman, Lester, Nigro, Talmage, and Vorpahl failed to file an acceptance with the Board, and although petitioner Kinsella timely filed an acceptance, it was deemed defective by the Board as it failed to include the statutorily required acknowledgment. At a meeting on June 5, 2019 the Board unanimously ruled that the nominating petitions for all twelve candidates were invalid due to their failure to timely file and/or properly file their acceptances. That same day the Board sent notices to each candidate informing them that their petitions were invalidated. Thereafter each petitioner filed a Certificate of Substitution to Fill Vacancies ("substitution") (EL § 6-148) to substitute themselves as a candidate for the EH Fusion Party for the same offices for which they were originally named on the petition that was invalidated by the Board on June 5, 2019. On June 13, 2019 the Board ruled that all substitutions were invalid on the ground that no vacancy was created by reason of the Board's June 5, 2019 invalidation of the candidates' petitions and, assuming arguendo a vacancy was created, the Committee to Fill Vacancies could not name the same candidate in the substitution who had been named in the original invalidated petition.
Of the four remaining EH Fusion candidates the two assessor candidates timely filed their acceptances, the supervisor of highways candidate filed a declination, and the judicial candidate was exempt from the requirement pursuant to statute.
--------
The petition (Seq. #001) was marked fully submitted on June 27, 2019. On that date petitioner filed a second application by order to show cause (Seq. #002) to stay this action since petitioners had commenced a second action on June 14, 2019 against the same respondents, in the United States District Court for the Eastern District of New York, EH Fusion Party, et al. v. The Suffolk County Board of Elections (Civil Action No. 19-cv-03511-KAM-SJB) ("the federal action"). The order to show cause (Seq. #002) was signed on June 27, 2019 and the court set a return date of July 11, 2019 at which time the stay motion was marked fully submitted. Based on the parties submissions on the stay motion (Seq. #002) it was clear that a hearing was held in the federal action on June 26, 2019 before the Honorable Kiyo A. Matsumoto, an expedited discovery schedule was set, and counsel were directed to submit a letter to that court by June 28, 2019 outlining the schedule for summary judgment motions. On July 29, 2019 counsel participated in a conference call with the court's principal law clerk at which time this court was advised that summary judgment motions in the federal action were to be submitted August 1, 2019 and oral argument was scheduled for August 12, 2019. By order dated July 29, 2019 this action was stayed pending a conference set for August 19, 2019. In the interim this court conducted a conference with counsel in chambers on August 5, 2019 to further discuss scheduling and on August 13, 2019 Judge Matsumoto issued a decision denying defendants' motion for a stay and/or abstention, granting defendants' motion for summary judgment and denying plaintiffs' motion for summary judgment and dismissed the federal action. In light of Judge Matsumoto's decision dismissing the federal action the court denied petitioners' stay motion (Seq. #002) on the record at the August 19, 2019 conference, and in a written order issued that day.
In their first, second, and third causes of action petitioners argue that the certificate of acceptance requirement (EL § 6-146) does not apply to them and/or that their failure to file acceptances has been remedied by filing Certificates of Substitution by Committee to Fill Vacancies; that respondents are estopped from asserting the requirement that petitioners file a certificate of acceptance because of purported statements made by respondents employees; and that petitioners Bambrick, Brady, Gruber and Klopman have satisfied the Certificate of Acceptance requirement by obtaining their own signatures on nominating petitions on which they were witnesses. In opposition respondents argue the Board correctly invalidated the petitions for failure to file duly acknowledged acceptances, the filing of Certificates of Substitution by Committee to Fill Vacancies does not cure petitioners fatal error of not filing certificates of acceptance and that petitioners' estoppel claim is without merit.
Article 6 of the Election Law governs the nomination of candidates who seek to have their names placed on the general election ballot on behalf of independent bodies. Following the filing of nominating petitions each candidate must accept or decline the independent nomination in accordance with EL § 6-146[1] which states in relevant part that a person "... designated or nominated for a public office ... by an independent body alone, such person shall, in a certificate signed and acknowledged by him, and filed as provided in this article, accept the designation or nomination as a candidate of each such party or independent body other than that of the party of which he is an enrolled member, otherwise such designation or nomination shall be null and void." The failure to file the acceptance is a fatal defect (EL § 1-106[2] ). It is undisputed that on May 21, 2019 respondents mailed notifications to each petitioner informing them of the deadline. It is also undisputed that each of the petitioners failed to timely file and/or properly file an acceptance.
The Court of Appeals, in Rhodes v. Salerno , 57 NY2d 885 [1982], held that the acknowledgment requirement of EL § 6-146[1] is to be strictly construed:
[S]ection 6—146 of the Election Law requires a candidate nominated by a political party other than of a party of which he is an enrolled member to accept or decline that nomination "in a certificate signed and acknowledged by him." The statute further provides that failure to comply will render the nomination null and void. We have repeatedly said that statutory commands as to matters of content must be strictly complied with (citations omitted). The courts enjoy no discretion to allow candidates to deviate from these legislative mandates (emphasis supplied).
Courts have repeatedly held that a failure to timely file the certificate of acceptance required by EL § 6-146[1] renders a designation null and void (see Carnahan v. Ward , 44 AD3d 1249 [4th Dept. 2007] ); Hockley v. Westchester County Bd. of Elections , 66 AD3d 898 [2d Dept. 2009] ; lv. denied 13 NY3d 710 [2009] ; Dixon v. Clyne , 87 AD3d 812 [3rd Dept. 2011], appeal dismissed, 17 NY3d 824 [2011] ).
Faced with this fact petitioners now argue that the acceptance requirement does not apply to them, or in the alternative, that by each of them filing a Certificate of Substitution by Committee to Fill Vacancies their failure to comply with EL § 6-146[1] has been remedied. This court finds petitioners' arguments unavailing.
The argument raised by petitioners Bambrick, Brady, Gruber and Klopman, that the acceptance requirement did not apply to them because they obtained their own signatures and filed nominating petitions on which they were witnesses "under penalty of perjury" is without merit. This very argument was raised in Hockley v. Westchester Cty. Bd. of Elections , 66 AD3d 898 (2d Dept. 2009) by petitioners who personally solicited and witnessed signatures on the nominating petitions. That argument was rejected by the court which held the failure to file the certificate of acceptance constituted a "fatal defect" (EL§ 1—106[2] ), and "the judiciary is foreclosed from fashioning any exceptions to this requirement, however reasonable they might appear" (citations omitted).
Petitioners next argue that their failure to file acceptances has been remedied by filing Certificates of Substitution by Committee to Fill Vacancies, however the filing of substitutions does not cure their fatal defect in failing to file their acceptances. Pursuant to EL § 6-148 a valid designating petition is a prerequisite to the creation of a vacancy (see Testa v. Ravitz , 84 NY2d 893 [1994] ). Here since respondents petitions were invalidated by the Board no vacancies were created which the Committee Authorized to Fill Vacancies was authorized to fill (see Matter of Turdik v. Bernstien , 87 AD3d 748 [2d Dept. 2011] ). Further, even if a vacancy had been created, petitioners attempts to name the same persons in the Certificates of Substitution, who were originally named in the designating petitions which were deemed invalid, fails as "Election Law plainly contemplates that the candidate designated to fill a vacancy shall be a person other than the person originally named" (Matter of Turdik v. Bernstein , supra , quoting Matter of Nestler v. Cohen , 242 App. Div. 726 [1st Dept. 1934] ; see Matter of Proud v. Relin , 176 AD2d 1197 [4th Dept. 1991] ).
Petitioners argument that they were mislead by Board staff into believing no additional paperwork was required when they filed the designating petitions is also without merit. Notwithstanding what may or may not have been said by Board employees when the petitions were filed, upon the facts presented it is undisputed that the Board mailed each petitioner a letter advising them of the May 31, 2019 deadline by which to accept or decline the nomination yet each petitioner failed to file an acceptance by that date. Equitable estoppel is applied against a municipality performing governmental functions only in the rarest of cases and "erroneous advice by a governmental employee will not give rise to an exception to the general rule" ( Wilson v. Neighborhood Restore Housing , 129 AD3d 948 [2d Dept. 2015] citing Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi] , 77 AD3d 1146 [3d Dept. 2010] ; see also Atlantic States Legal Foundation, Inc. v. New York State Dept. of Environmental Conservation , 119 AD3d 1172 [3d Dept. 2014] ). Petitioners failure to file their acceptances on behalf of the EH Fusion Party nominations is all the more curious since upon the papers submitted on petitioners' stay application (Seq. #002), it is clear that each petitioner in this action actually timely filed certificates of acceptance for the 2019 general election to accept nominations of other political parties of which they were not members (including the Independence Party, Republican Party, Working Families Party and Conservative Party) (see Exhibit A to Respondents' Affirmation in Opposition [Seq. #002] ). Here having complied with the requirement to accept nominations of other political parties in the same election weakens any argument that petitioners were mislead by Board staff.
Petitioners' first, second, and third causes of action are dismissed.
The court turns next to petitioners' fourth, fifth and sixth causes of action which challenge the acceptance requirement of EL § 6-146[1] under the New York State Constitution and United States Constitution. At the outset petitioners argument that respondents apply Election Law § 6-146 selectively and discriminate against political associations that are not "political parties" is without merit since the law as written applies to a person designated or nominated for public office by a party, as well as those designated by an independent body, such as petitioners. Further contrary to petitioners' arguments, the acceptance requirement of EL § 6—146(1) has been deemed facially constitutional (see Dixon v. Clyne , 87 AD3d 812 [3rd Dept. 2011] ) ("contrary to petitioner's argument, we are unpersuaded that it offends his rights to due process or equal protection"); Carnahan v. Ward , 44 AD3d 1249 [4th Dept. 2007] )("Contrary to the contention of petitioner, Election Law § 6—146(1) does not violate his constitutional right to equal protection. The requirement that a candidate nominated by an independent body file a certificate of acceptance imposes only a minimal burden on independent candidates and small political parties and is rationally related to the State's interest in "preventing election fraud" [ Unity Party v. Wallace , 707 F2d 59, 63 (2d Cir. 1983) ] ).
Finally this court is unconvinced by petitioners argument that Unity Party v. Wallace , supra , is no longer good law. In Unity Party v. Wallace , supra , the Second Circuit ruled that the acceptance requirement of EL § 6—146(1) is constitutional and the requirement reflects the legislative purpose of preventing election fraud. Further, as noted previously, in the present case each petitioner actually filed certificates of acceptance for the 2019 general election to accept nominations of other political parties of which they were not members, and three of the EH Fusion Party candidates timely filed an acceptance/declination. As stated by the court in Unity Party v. Wallace , supra , "New York did not erect some sort of ponderous portcullis barring access to the ballot that triggers heightened scrutiny to justify it. Instead, the restriction is no more than a flimsy wicket kind of bar - an insignificant hurdle" ( 707 F2d 59, 62 [2d Cir. 1983] ). Rather than barring access it appears in this instance that carelessness, or simply oversight, contributed to the predicament in which petitioners currently find themselves. The court finds that petitioners claims that EL § 6—146(1) are in violation of the New York State Constitution and the United States Constitution are without merit and petitioners' fourth, fifth and sixth causes of action are dismissed and their seventh cause of action requesting declaratory relief denied.
Accordingly it is hereby
ORDERED and ADJUDGED that the petition is denied and the proceeding dismissed.