Opinion
Index No. 20-1777
08-18-2020
In re Petition to Allow Nomination Michael A. KRAIZA, Petitioner, v. ULSTER COUNTY BOARD OF ELECTIONS, Respondent.
Bruce C. Dunn, Sr., Esq., Attorney for Petitioner, 67 South Plank Road, Newburgh, New York 12550 County Attorney Ulster County, Attorney for Respondent, P.O. Box 1800, Kingston, New York 12401, By: Jennifer J. Clark, Esq., Assistant County Attorney
Bruce C. Dunn, Sr., Esq., Attorney for Petitioner, 67 South Plank Road, Newburgh, New York 12550
County Attorney Ulster County, Attorney for Respondent, P.O. Box 1800, Kingston, New York 12401, By: Jennifer J. Clark, Esq., Assistant County Attorney
Julian D. Schreibman, J. This is a proceeding under Election Law § 16-102. Petitioner is an aggrieved candidate having been denied a place on the ballot as Republican candidate for Justice of the Town of Marlborough by Respondent Ulster County Board of Elections (the "Board"). In addition to reviewing the Petition and opposition papers submitted by the Board, the Court conducted oral argument and received witness testimony on August 3, 2020, and received limited post-hearing briefing from the parties. For the reasons set forth below, the Petition is GRANTED, to the limited extent of ordering the Board to accept for filing, no later than September 11, 2020, the nomination of candidates at a new Town of Marlborough Republican party caucus conducted otherwise in compliance with all legal requirements set forth in the Election Law.
The Court left the hearing record open to permit the parties to consider whether they required additional witness testimony. Neither party having requested such testimony, the record is closed.
The parties agree as to what the Board did with respect to the Petitioner's candidacy and why. It is undisputed that for the results of a party caucus to be valid, a caucus notice must be filed with the Board within the time period provided by law. The Board maintains that it did not receive any such notice. Therefore, after Petitioner filed his Certificate of Nomination and Certificate of Authorization, the Board ruled that he would not be placed on the ballot.
In support of his Petition, Petitioner submits the Affidavit of Arlette M. Porpiglia, the Chairwoman of the Marlborough Republican Committee ("MRC"). Ms. Porpiglia swears that she mailed the Caucus Notice to the Board on June 8, 2020 — in plenty of time for it to be received more than ten days in advance of the caucus that had been noticed for June 24, 2020. Attached to the Petition is a copy of the Caucus Notice that was executed and notarized on June 8, 2020 and bears a "Received" stamp from the Marlborough Town Clerk on the same date. The Court considers this circumstantial evidence in support of Ms. Porpiglia's claim to have mailed a copy of the Caucus Notice to the Board on that date.
The Court also accepts, however, the Board's evidence that the Caucus Notice was not received. Ultimately, it is the responsibility of those charged with conducting a caucus to ensure that all the legal requirements are satisfied. In the present case, Ms. Porpiglia could have contacted the Board to ensure that the Caucus Notice had been received sufficiently in advance of the deadline to cure its disappearance. Accordingly, the Court finds that the Board's conduct in rejecting the caucus results complied with the law and the Petitioner's request to overturn that decision and place him on the ballot is denied. In ordinary times, this would end the matter. But these are not ordinary times.
The Court finds that in the unique set of facts present in this case, the Petitioner is entitled to some relief. There is no question that the Petitioner was not responsible for filing the Caucus Notice. Petitioner himself did nothing wrong. Indeed, apparently no one at the June 24 caucus — party leadership, Petitioner, or party members who attended — knew that they were participating in a legal nullity. The Court also notes that the filing requirement for caucus notices is dependent entirely on the date of mailing and such a notice received even after the caucus occurs is deemed timely under the statute even though it could not possibly serve its statutory notice purpose. ( Election Law 1-106(1) ). Accordingly, the specific failure present here cannot be conclusively found to have had any effect whatsoever on actual notice of or attendance at the caucus.
As of early June 2020, businesses and government offices were only just beginning to reopen as the State emerged from the worst (to date) of the COVID-19 public health crisis. The Court acknowledges Ms. Porpiglia's testimony that she mailed the Caucus Notice rather than deliver it in person in deference to public health guidance to limit personal contact with others. The Court will not fault her for doing so. The Court also notes that at precisely the same time, the Board was consumed with the sudden and unplanned changes to the conduct of the federal primary election — including by sending out and then receiving applications for absentee ballots. It is undoubtedly more possible that election-related mail could go missing under these unusual circumstances — notwithstanding the Board's good faith best efforts.
While the applicable provisions of the Election Law must be strictly construed, and the Court is without authority to consider equities in their application, ( Gage v. Hammond , 309 A.D.2d 1061, 1062, 766 N.Y.S.2d 399 [3rd Dept. 2003] ; Shimer v. Onondaga County Bd of Elections , 41 Misc. 3d 1206(A), 980 N.Y.S.2d 278, 2013 WL 5476271, *2 [Sup. Ct. Onondaga Cty. 2013] ), the Court must also consider the critical purpose of the Election Law and be mindful that its enforcement serve those purposes. ( Scaringe v. Ackerman , 119 A.D.2d 327, 506 N.Y.S.2d 918 [3rd Dept. 1986] ). Here, there are no suggestions of fraud or irregularities, such as lack of a quorum, in the conduct of the caucus. ( Marzullo v. DelConte , 165 A.D.3d 1466, 1468, 85 N.Y.S.3d 274 [3rd Dept. 2018] ; Cozzolino v. Columbia County Bd. of Elections , 218 A.D.2d 921, 923, 631 N.Y.S.2d 82 [3rd Dept. 1995] ; Hogan v. Goodspeed , 196 A.D.2d 675, 677-78, 601 N.Y.S.2d 356 [3rd Dept. 1993] ). As noted above, a caucus notice may be timely filed even if it is received by the Board after the caucus is conducted. If the Petitioner is omitted from the ballot the voters who participated in the caucus in good faith will have their voices negated and voters in the general election may have their choices significantly altered. Meanwhile, permitting the MRC to reconvene its caucus will not cause collateral harm. The prior caucus has already been effectively voided, properly, by the Board. No other candidates were nominated other than the Petitioner and no other office is up for election except that which Petitioner seeks.
The Board objects that the MRC is a necessary party and the relief requested cannot be ordered without its participation. The Court disagrees. The Court is not ordering the MRC to do anything. The MRC is under no obligation to conduct a new caucus. At such a new caucus, if held, the MRC is under no obligation to nominate the Petitioner. And the Board is not disempowered from ensuring that any new caucus is conducted in full compliance with legal requirements as to notice, quorum, etc.; rather, the only thing the Board is prohibited from doing under this Order is rejecting the caucus results for having been conducted after the statutory deadline (so long as the results are filed with the Board by the deadline set by this Order).
The Court acknowledges that this ruling is philosophically inconsistent with the Second Department's holding regarding a village caucus in Fitzpatrick v. Ciamarra, 27 A.D.3d 594, 811 N.Y.S.2d 767 [2nd Dept. 2006]. The Court takes judicial notice that many components of the 2020 elections conducted so far this year have been altered to deal with the challenges of the COVID-19 crisis. The Court emphasizes that the holding in this case is based upon its unique circumstances and context and should not be considered precedential.
This shall constitute the Decision and Order of the Court.