Opinion
Index No. 031727/2023
04-28-2023
In the Matter of the Application of Rosalind Jacobson and Justin Sweet, Petitioners, v. George A. Hoehmann, Respondent-Candidate, And the Rockland County Board of Elections, Respondent.
Unpublished Opinion
HON. AMY S. PUERTO, Justice.
On April 19, 2023, ROSALIND JACOBSON and JUSTIN SWEET ("Petitioners") filed an order to show cause, requesting that the Court issue an order finding that the designating petition for the Republican Party, filed with the ROCKLAND COUNTY BOARD OF ELECTIONS ("Board") on April 10, 2023, by GEORGE A. HOEHMANN ("Respondent-Candidate") be deemed null and void.
The Court instructed the parties to appear on April 24, 2023. Brief oral arguments were presented, and the parties advised they would be submitting letters in support. On April 26, 2023, the Respondent-Candidate filed a motion to dismiss the Petitioner's order to show cause and petition seeking to invalidate the Respondent-Candidate's designating petition. During that appearance, the Petitioners withdrew the specific objections to the designating petition, leaving only the claim that the Respondent-Candidate should be removed from the ballot because he is an ineligible candidate.
Background
On March 15, 2023, this Court issued a decision on a challenge to the validity of Chapter 263 of the Clarkstown Town Code (Index No. 035405/2022). Chapter 263 imposes term limits on certain elected officials in the Town of Clarkstown. On March 15, 2023, the Court dismissed the challenges to the term limit legislation, finding the statute of limitations to make such a challenge expired more than seven years prior. In addition, this Court found that Chapter 263's requirement of "the majority plus one" vote in order to repeal the legislation, was a valid requirement.
Chapter 263 provides: The term of any elected Clarkstown official elected in a regular election after January 1, 2015, shall not exceed eight consecutive years.
An additional challenge to Chapter 263 arose when the Town Board passed Local Law 1 of 2023, repealing Chapter 263, by a majority vote only. On March 31, 2023, the Court issued an order declaring Local Law 1 of 2023 invalid because repealing Chapter 263 required a "majority plus one" vote, not simply a majority vote. The Court enjoined the repealing of Chapter 263 of the Town Code by way of Local Law 1 of 2023 (Index No. 031181/2023).
On April 10, 2023, the Rockland County Board of Elections received a designating petition from the Respondent-Candidate for the June 27, 2023, Republican primary election. While the Petitioners filed an objection with the Board challenging the Respondent-Candidate's designating petition, the Board had yet to make ruling on this challenge as of the date the Parties appeared before this Court.
Current Application
In the instant application, the Petitioners request that the Court enjoin and restrain the Board from printing the name of the Respondent-Candidate on the official ballots of this primary election, alleging that his designating petition is null and void. Specifically, the Petitioners assert that "the Respondent-Candidate was ineligible to be elected to such office or position" (NYSCEF 1 at ¶ 22).
The Respondent-Candidate's motion to dismiss argues that because his challenges to this Court's prior decisions relating to the validity of the Clarkstown Town Code term limits are still pending before the Appellate Division, Second Department, this action is premature and prejudicial, and cites Parietti v. Town of Ramapo, 129 A.D.3d 1088, 1090 (2d Dept. 2015), in support. That case is factually distinguishable. In Parietti, a trial court's order invalidated a special town election before the election officials had made any determinations about the special election. The Second Department concluded the trial court's action was premature. In this case, however, a determination on the term-limit legislation was made on March 15, 2023 by this Court. That the Respondent-Candidate has filed an appeal with the Second Department does not mean the term-limit legislation is still in question and a determination has not been made, as was the case in Parietti. It merely means the Respondent-Candidate is unsatisfied with the Court's decision and hoping for a different outcome on appeal.
Moreover, the Court advised the parties at the last appearance that by deciding this matter expeditiously, the Respondent-Candidate will have the opportunity to incorporate this decision in his appeal before the Second Department. The appellate court will have time to review and issue decisions on these challenges well before the primary election. At this time, however, in accordance with the Court's prior rulings relating to the validity of Chapter 263, the Court finds the Respondent-Candidate ineligible to be elected to the position he seeks.
Finally, in oral argument before the Court, the Respondent-Candidate asserted that he gathered the requisite signatures for the primary designating petition prior to this Court's ruling on the validity of Chapter 263 and therefore, the Court's decision on the validity of Chapter 263 did not preclude his submitting the designating petition. This is wholly unsupported, and the Court finds it is a distinction without a difference. The timing of the gathering of these signatures has no bearing on the question of whether the Respondent-Candidate is a term-limited candidate.
Accordingly, the Petitioner's petition is GRANTED and the Respondent's motion to dismiss is DENIED and it is hereby
ORDERED that the Board refrain and is enjoined from printing the Respondent-Candidate's name on the ballots for the June 27, 2023, Primary Election, insofar as Chapter 263 of the Town Code, renders him an ineligible candidate.