Opinion
003260/2021
04-30-2021
Dave KNAPP; Mark Olson; Joe Carni; Colleen Gunnip; James Rowley; Deb Cody; John McBride; and Cody Kelly, Petitioners, v. Christopher HESS; Maxwell Ruckdeschel; Sarah Klee Hood; Ed Michalenko; Marcia Ferguson; William Stowell ; John Deer; Katelyn Kriesel; Sara Bollinger; William Nicholson; Tammy Sayre; Heather Waters ; Ryan Suser; Sunny Aslam; Shanelle Benson Reid; Joseph Bennett ; Vernon Williams; Linda Ervin; Jay Snyder ; Matthew Johnson; Stephon Williams; Jana Rogers; Mary Kuhn ; Christopher Ryan; Rasheada Caldwell; Shakayla Johnson; Helen Hudson ; Cherylene Billue; Karen Cordano; Dustin Czarny, Commissioner of the Onondaga County Board of Elections ; Michele Sardo, Commissioner of the Onondaga County Board of Elections ; the Working Families Party; the Executive Board of the Working Families Party; Jonathan Westin ; and Daniel Langenbucher, Respondents.
DerOhannesian and DerOhannesian by Paul DerOhannesian, Esq., Law Office of Joseph T. Burns, PLLC by Joseph T. Burns, Esq., Messina, Perillo and Hill, LLP by John Ciampoli, Esq. on behalf of Petitioners Bousquet Holstein PLLC by Ryan S. Suser, Esq. and Kavitha Janardhan, Esq., on behalf of Respondent-Candidates Jan Snyder Ryan Suser, Stephon Williams, Jana Rogers, Mary Kuhn, Heather Waters, Sunny Aslam, Shanelle Benson Reid, Christopher Hess, Max Ruckdeschel, Sarah Klee Hood, Ed Michalenko, Marcia Ferguson, William Stowell, John Deer, Katelyn Kriesel, Sara Bollinger, William Nicholson, Tammy Sayre, Joseph Bennett, Vernon Williams, Linda Ervin, Matthew Johnson, Chris Ryan, Rasheada Caldwell, Shakayla Johnson, Helen Hudson, Cherylene Billue, and Karen Cordano Onondaga County Attorney's Office by Benjamin Yaus, Esq., on behalf of Respondents Dustin Czarny and Michele Sardo, Commissioners of the Onondaga County Board of Elections Levy Ratner PC by Alexander C. Rabb, Esq., on behalf of Respondents the Working Families Party, The Executive Board of the Working Families Party, Jonathan Westin and Daniel Langenbucher
DerOhannesian and DerOhannesian by Paul DerOhannesian, Esq., Law Office of Joseph T. Burns, PLLC by Joseph T. Burns, Esq., Messina, Perillo and Hill, LLP by John Ciampoli, Esq. on behalf of Petitioners
Bousquet Holstein PLLC by Ryan S. Suser, Esq. and Kavitha Janardhan, Esq., on behalf of Respondent-Candidates Jan Snyder Ryan Suser, Stephon Williams, Jana Rogers, Mary Kuhn, Heather Waters, Sunny Aslam, Shanelle Benson Reid, Christopher Hess, Max Ruckdeschel, Sarah Klee Hood, Ed Michalenko, Marcia Ferguson, William Stowell, John Deer, Katelyn Kriesel, Sara Bollinger, William Nicholson, Tammy Sayre, Joseph Bennett, Vernon Williams, Linda Ervin, Matthew Johnson, Chris Ryan, Rasheada Caldwell, Shakayla Johnson, Helen Hudson, Cherylene Billue, and Karen Cordano
Onondaga County Attorney's Office by Benjamin Yaus, Esq., on behalf of Respondents Dustin Czarny and Michele Sardo, Commissioners of the Onondaga County Board of Elections
Levy Ratner PC by Alexander C. Rabb, Esq., on behalf of Respondents the Working Families Party, The Executive Board of the Working Families Party, Jonathan Westin and Daniel Langenbucher
Scott J. DelConte, J.
This is a special proceeding pursuant to Election Law § 16-102(1) challenging the Working Families Party's designated candidates for elected offices in Onondaga County. Petitioners allege that the designations are invalid because the county-wide certificate of authorization (commonly known as a Wilson-Pakula authorization) filed with the Board of Elections is a legal nullity since it was signed electronically (and not by hand) and acknowledged remotely by video conference. In response, the Working Families Party ("WFP") and the Respondent candidates contend that Petitioners lack standing to challenge the designating petitions for 21 of the Respondent candidates, and that the Wilson-Pakula authorization is effective because it was properly signed in accordance with the Electronic Signatures and Records Act and lawfully acknowledged pursuant to the Governor's emergency pandemic directives under Executive Order 202.7. For the reasons set forth below, the relief requested in the Verified Petition is DENIED , and the Petition is DISMISSED , with prejudice.
I.
Under New York's fusion voting system, candidates can, if properly authorized, run for elected office on multiple party lines. Political parties have the power to control their ballot lines, and a nonmember cannot be designated as a party candidate without first receiving, and timely filing, a proper Wilson-Pakula authorization issued by the party ( Election Law § 6-120[3] ). Here, since the Respondent candidates are not registered members of the Working Families Party, they were required to timely file a Wilson-Pakula authorization along with their WFP designating petitions to gain access to the WFP's ballot line. For the authorization to be effective, it had to "be signed and acknowledged by the presiding officer and the secretary of the meeting at which such authorization was given," and then filed with the Board of Elections "not later than four days after the last date to file the designating petition" (Elections Law §§ 6-106; 6-120[3]).
As the record establishes, on March 25, 2021, the Executive Board of the Working Families Party of New York State met remotely via Zoom video conference in accordance with Executive Order 202.93 to authorize candidates in the 2021 local elections across the state. Later that day, Jonathan Westin (the Presiding Officer of the authorizing meeting and Working Families Party Co-Chair) and Daniel Langenbucher (Working Families Party Assistant Secretary) met again remotely with William Sacks (a notary public) by Zoom video conference to complete the cross-endorsement process and issue the Wilson-Pakula authorization designating 31 candidates for public office in Onondaga County.
At the beginning of this meeting, Westin and Langenbucher (who were physically in their Kings County homes) held up and showed Sacks (who was physically in his New York County office) their driver's licenses. Sacks watched remotely, through Zoom, as the party officers separately signed their names by hand on blank pieces of paper. Westin and Langenbucher then photographed their signatures using their cell phones, and uploaded the digital images to their individual computers. Next, Westin and Langenbucher personally affixed the digital images of their hand-written signatures to the digital version of the Wilson-Pakula authorizations (which Langenbucher had earlier prepared and shared at the virtual meeting on Google Drive) by electronically "cutting-and-pasting" the downloaded image into the appropriate signature blocks on the certificates. Westin and Langenbucher viewed, and signed, the authorizations county by county in alphabetical order. With the use of available technology, all of this was observed, over many hours, by Sacks in real time.
For his part, Sacks — having verified Westin and Langenbucher's identity and watched them personally place their digital signatures on the digital certificates — printed the Wilson-Pakula authorizations on paper, notarized them by hand, scanned the completed documents, and then electronically transmitted them to Langenbucher. Finally, Langenbucher printed the completed digital version of the certificates of authorization, and sent the appropriate one to the Onondaga Board of Elections by regular and overnight mail. This same procedure was followed with the substitute Wilson-Pakula authorizations that were subsequently executed by Westin and Langenbucher (before different notary publics) on March 29, 2021 and March 31, 2021.
On April 5, 2021, Petitioners — purporting to be both objectors and aggrieved candidates — commenced this special proceeding in Onondaga Supreme Court challenging the Respondent candidates’ designating petitions on the grounds that the Wilson-Pakula authorization was invalid or, worse, fraudulent, because the paper document filed with the Board of Elections did not contain original signatures. The Court granted the Order to Show Cause on April 7, 2021 (NYSCEF Doc. 5). On April 22, 2021, Chief Administrative Judge Lawrence Marks issued Administrative Order 124/2021 (amended by AO/124a/2021), transferring 13 related actions challenging Working Families Party certificates of authorization filed with other County Boards of Elections from across the State to this Court (NYSCEF Doc. 20).
On April 23, 2021, a consolidated briefing, hearing and argument schedule was issued for all 14 actions (NYSCEF Doc. 22). On April 27, 2021, Respondents Westin and Langenbucher, along with non-party witness Sacks, testified at a consolidated virtual hearing with respect to the signing and acknowledgement of the challenged certificates of authorization. On April 28, 2021, argument was held on the Petitions, virtually, in all related actions.
II.
A Court presiding over a special proceeding under Article 16 of the Election Law must resolve all potentially dispositive procedural objections before addressing the underlying merits of the action ( Castracan v Colavita , 173 AD2d 924, 925 [3d Dept 1991] ). Here, Respondents argue that: (1) this is a special proceeding under the Election Law and, therefore, Petitioners have no basis to seek declaratory or affirmative relief under CPLR 3001 or Article 78; (2) that Petitioners lack standing to challenge the designating petitions for 21 of the Respondent candidates; and (3) that any claims of fraud were not pled with the specificity required by CPLR 3016 and must be dismissed (NYSCEF Docs. 11, 23).
Beginning with the nature of the relief requested in this action, although Petitioners are attacking the validity of the Working Families Party's Wilson-Pakula authorization, the ultimate relief that they seek is to void the Respondent candidates’ designating petitions pursuant to Election Law § 16-102 (see e.g. NY State Comm. of the Independence Party v NY State Bd. of Elections , 87 AD3d 806, 809 [3d Dept 2011] ; NYSCEF Doc. 1). Accordingly, the jurisdiction of this Court is strictly limited by the express provisions of the Election Law ( Scaringe v Ackerman , 119 AD2d 327, 328 [3d Dept 1986]affd 68 NY2d 885 [1986] ), and this Court cannot grant relief pursuant to CPLR 3001 or Article 78 except as otherwise available in an Election Law proceeding ( NY State Comm. of the Independence Party , 87 AD3d at 810 ). To the extent that Petitioners seek any relief beyond the express provisions of the Election Law, such claims are dismissed.
With respect to standing, in order to have standing to invalidate a candidate's designating petition, a petitioner must be either: (1) the chairman of a party committee (for any political party); (2) a member of the subject political party who has timely filed general and specific objections against that candidate's designating petition — i.e. an objector; or (3) an aggrieved candidate running for the same public office as the respondent, who is either a member of the subject political or otherwise arguably entitled to its cross-endorsement ( Election Law § 16-102[1] ; Cane , 40 NY2d at 820 [1976] ; Keenan v Moss , 153 AD2d 778, 780 [3d Dept 1989] ). This is a different standard than what is necessary for a petitioner to have standing to challenge a Wilson-Pakula authorization, which can result in situations where, as here, a candidate has been sued in an action as a necessary party because she was named on the challenged certificate of authorization, but for whom no petitioner has standing to challenge her designating petition.
In such a situation, because standing is an affirmative defense that may be waived if not specifically raised as a defense ( Cipriano v Graves , 87 AD3d 636, 637 [2d Dept 2011] ), a candidate for whom no one has standing to challenge their designating petition may decide to either remain in an action and defend her certificate of authorization, or move to dismiss the challenge to her designating petition and remain on the ballot regardless of the ultimate outcome of the remainder of the action. As Respondent candidates Christopher Hess, Max Ruckdeschel, Sarah Klee Hood, Ed Michalenko, Marcia Ferguson, William Stowell, John Deer, Katelyn Kriesel, Sara Bollinger, William Nicholson, Tammy Sayre, Joseph Bennett, Vernon Williams, Linda Ervin, Matthew Johnson, Chris Ryan, Rasheada Caldwell, Shakayla Johnson, Helen Hudson, Cherylene Billue and Karen Cordano have moved to dismiss the claims against based upon a lack of standing, their motion is granted and those claims are hereby dismissed.
Finally, with respect to any claims of fraud, while the Petition in this action contains generalized allegations of fraud, it fails to plead any fraudulent conduct on behalf of any party with the specificity required under CPLR 3016. Furthermore, counsel for Petitioners has acknowledged (following the testimony of the signatories to the certificate of authorization) that there are no remaining allegations of fraud with respect to the conduct at issue here. Accordingly, to the extent that any claims of fraud were raised in this proceeding, such claims are dismissed, with prejudice ( Eurycleia Partners, LP v Seward & Kissell , LLP, 12 NY3d 553, 559 [2009] ). 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.
III.
Turning to the merits, Petitioners claim that the Wilson-Pakula authorization filed by the Working Families Party is invalid because the signatures of the Presiding Officer and Secretary are not hand-affixed and "wet" ink original signatures. However, there is no statutory mandate that a Wilson-Pakula authorization must contain hand-affixed and "wet" original signatures in order to be filed. To the contrary, the Legislature has specifically authorized electronic signatures on election-related and other documents through the Electronic Signatures and Records Act ("ESRA"; State Tech. Law §§ 301 — 309 ). In particular, State Technology Law § 304(2) provides that:
Unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.
Critically important here is that the Election Law sets forth only four specific documents that must be signed by hand in ink: (1) designating petitions ( Election Law § 6-132 ); (2) independent nominations ( Election Law § 6-140 ); (3) party designations for elective village offices ( Election Law § 15-108[3] ); and (4) independent nominations for elective village offices ( Election Law § 15-108[4] ). For sound and obvious reasons, these documents are only valid if presented to the Board of Elections for filing with hand-affixed "wet" original signatures. However, under the ESRA, all other election-related documents, including Wilson-Pakula authorizations ( Election Law § 6-120 ), may be signed electronically ( State Tech. Law § 307 ).
Moreover, the statutory definition of what constitutes an "electronic signature" is extremely broad under the ESRA, and includes any "electronic sound, symbol or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" ( State Tech. Law § 302[a] ). Under the plain meaning of this definition, the "cutting-and-pasting" of a digital photograph of a signature onto a digital version of a document is — without question — a valid electronic signature under the ESRA. Indeed, the rules governing the New York State Court Electronic Filing system (which all attorneys appearing in this action are utilizing) explicitly recognizes such an act as one of the acceptable means of electronically signing a Court document under the ESRA ( 22 NYCRR § 202.5-b [e][1][ii]).
Here, there is no dispute that the WFP's Presiding Officer and Secretary personally signed the Wilson-Pakula authorization electronically before a notary public, who acknowledged the certificate, and thereafter scanned and returned a digital version to the party's officers for filing. The completed digital version of the certificate was printed, and timely filed with the Board of Elections. Accordingly, Petitioners’ allegation that the WFP's officers copied and pasted digital photographs of their signatures onto the Wilson-Pakula authorization fails to state a cause of action.
Petitioner's reliance on Gentner v Albany County Board of Elections, 309 AD2d 962 (3d Dept 2003) and New York Attorney General Opinion 2016-1 for a contrary result is misplaced. Gentner concerns the filing of election-related documents under Election Law § 1-106, not the signing of those documents. There is no claim here that the Wilson-Pakula authorization was filed by any improper method. In addition, the certificate of acceptance challenged in Gentner was not electronically signed as allowed under the ESRA; rather, the candidate's signature was affixed by hand and then the certificate was improperly faxed to the board of elections. The ESRA, therefore, simply did not apply. Similarly inapplicable is Attorney General Opinion 2016-1, which merely concluded that there was no need to resort to the ESRA because the Election Law already permitted the use of electronic signatures for voter registration. Neither of these citations support Petitioners’ claim that the Election Law excepts certificates of authorization from the electronic signature provisions of the ESRA.
IV.
Moving on to the acknowledgements on the Wilson-Paula authorization, in March of 2020, as the Covid-19 pandemic began spreading through New York, the Legislature amended Executive Law §§ 20 and 29-a to allow the Governor to, by executive order, suspend any law or issue any directive he determined to be necessary to respond to the emergency, provided such suspension of directive was in the interest of the health or welfare or the public and reasonably necessary to aid in the disaster effort. Pursuant to this authority, on March 19, 2020, Executive Order 202.7 was issued (subsequently extended by Executive Order 202.97), which permits the remote notarization of documents during the pandemic as follows:
Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided the following conditions are met:
• The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
• The person must affirmatively represent that he or she is physically situated in the State of New York;
• The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
• The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
• The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.
Under its plain and unambiguous language, Executive Order 202.7 applies to all notarial acts required by State law, which by definition includes acknowledgements under the Election Law. Importantly, the New York State Board of Elections alerted all County Boards of Elections of the applicability of Executive Order 202.7 to election-related documents. In a March 23, 2020 bipartisan email, the State Board of Elections advised that "[a]ny acceptance or declination (EL 6-146(1)), authorization (EL 6-120), consent of a substitution (EL 6-148(5)) may utilize the video notary process as set out in Executive Order 202.7" (NYSCEF Doc. 28). This guidance was reaffirmed in the New York State Board of Elections’ 2020 Election Law Update which instructs that "[c]ertificates of designation or nomination, minutes, authorizations and/or acceptances may be executed in separate acts by the signatories thereto and where acknowledgements or oaths are required, they may be performed or administered remotely and pursuant to executive order 202.7 allowing notarizations to be performed using communication technology." Accordingly, a printout of the digital version of the certificate that is scanned and electronically transmitted back to the signer by the notary public after acknowledgment may then be filed with the Board of Elections (NYSCEF Doc. 28).
https://www.elections.ny.gov/NYSBOE/download/law/2020ElectionLawUpdate.pdf (at page 56).
There is simply no support for Petitioners’ argument that Executive Order 202.7 does not apply to election-related documents. Indeed, such an argument is logically incompatible given Executive Order 202.93, which explicitly permits a party committee to meet to issue a Wilson-Pakula authorization remotely during the pandemic "by telephone or video conferencing means." Clearly, if a party's executive committee may meet and authorize a certificate remotely, then that certificate may also be acknowledged using remote technology. Likewise, Petitioners’ argument that Executive Order 202.7 does not apply to electronically signed documents is unavailing. State Technology Law § 304(2) clearly states that "[t]he use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." Accordingly, as the Department of State advised in its March 31, 2020 Guidance to Notaries Concerning Executive Order 202.7, "[t]he signatory may use an electronic signature, provided the document can be signed electronically under the Electronic Signatures and Records Act (Article 3 of the State Technology Law). If the signer uses an electronic signature, the notary must witness the electronic signature being applied to the document, as required under Executive Order 202.7" (NYSCEF Doc. 27). Accordingly, Petitioners’ allegation that the notary public acknowledged the WFP's officers’ signatures remotely with virtual technology fails to state a cause of action.
V.
Simply put, Petitioners fail to allege any fatal errors or defects in the WFP's Wilson-Pakula authorization. Even if they had alleged such errors, however, that certificate would still be presumptively valid because of the acknowledgments contained on it. All documents acknowledged by a notary public are presumed to have been properly signed and notarized in accordance with the law ( Dwyer v Pellegrino , 164 AD3d 1088, 1089 [3d Dept 2018] ; O'Dea v Bell , 242 AD2d 349, 350 [2d Dept 1997] ). Indeed, this presumption of regularity is one of the primary purposes that documents are required to be notarized in the first place. And Petitioners have submitted no evidence rebutting the presumption that the acknowledged Wilson-Pakula authorization is valid.
Accordingly, although a factual hearing was held in this action on April 28, 2021 in order to establish the record for the parties, there are no issues of fact for the Court, and its ruling is based solely upon the pleadings and paper submissions only. Had the Petitioners submitted evidence rebutting the presumption of regularity of the acknowledged certificate of authorization, though, this Court would have found — based upon the thorough and credible testimony of the party and non-party witnesses — that the Wilson-Pakula authorization was properly signed and acknowledged in accordance with the ESRA and Executive Order 202.7.
VI.
Finally, as a matter of law, the Wilson-Pakula authorization that was mailed to and filed with the Onondaga Board of Elections is the original version of that document, properly signed and acknowledged in accordance with the provisions of the ESRA and Executive Order 202.7; and it is therefore valid. However, even if there had been a defect in the execution or filing of the WFP's Wilson-Pakula authorization, this Court would be without authority to invalidate the certificate if it substantially complies with the requirements of the Election Law. As the Second Department admonished in Farrell v Reid (131 AD3d 628 [2015] ), the "primary purpose of Election Law § 6-120(3) is to ‘safeguard the integrity of the electoral process and not to defeat elections’ " and, as such, it is of " ‘paramount importance that the will of the party committee of the political subdivision involved is expressed’ " ( Id. at 629 ).
With the exception of the statutory timing deadlines (see Seawright v Board of Elections , 35 NY3d 227 [2020] ), Courts have "recognized that a procedural defect need not be fatal where, as here, the defect alleged did not constitute a ‘substantive deficiency’ implicating the integrity of the electoral process ( Marzullo v DelConte , 165 AD3d 1466, 1468 [3d Dept 2018] ). The will of the Working Families Party to cross-endorse the candidates that are named on its Wilson-Pakula authorization is perfectly clear, and an improperly affixed signature or an incorrectly applied acknowledgment does not change that fact. Minor subscribing errors do not rise to the level of a substantive deficiency warranting invalidation ( Hazell v Board of Elections of the State of New York , 224 AD2d 806, 807 [3d Dept 1996] ).
VII.
Accordingly, after consideration of all of the papers filed in this action and the argument of counsel for the parties, and upon due deliberation, it is hereby
ORDERED that the motion of Respondents Christopher Hess, Max Ruckdeschel, Sarah Klee Hood, Ed Michalenko, Marcia Ferguson, William Stowell, John Deer, Katelyn Kriesel, Sara Bollinger, William Nicholson, Tammy Sayre, Joseph Bennett, Vernon Williams, Linda Ervin, Matthew Johnson, Chris Ryan, Rasheada Caldwell, Shakayla Johnson, Helen Hudson, Cherylene Billue and Karen Cordano to dismiss the claims against them based upon lack of standing is GRANTED , and those claims are severed from this application and DISMISSED , with prejudice; and it is further
ORDERED that that remaining relief requested in the Petition is DENIED, and the Petition is DISMISSED , with prejudice and on the merits; and it is further
ORDERED that counsel for the Respondent Onondaga County Board of Elections shall contact the Court's Chambers to make arrangements for the return of the original documents submitted pursuant to the Court's April 23, 2021 Scheduling Order.
PAPERS CONSIDERED:
1. Verified Petition, sworn to April 5, 2021 (NYSCEF Doc. 1);
2. Order to Show Cause of the Hon. Scott J. DelConte, J.S.C., entered April 6, 2021 (NYSCEF Doc. 5);
3. Verified Answer of Respondents Czarny and Sardo, sworn to April 19, 2021, with Exhibits 1 and 2, attached (NYSCEF Docs. 8 to 10);
4. Verified Answer of Respondent Candidates, sworn to April 16, 2021 (NYSCEF Doc. 11);
5. Notice of Cross-Motion to Dismiss of Unchallenged Respondent Candidates, dated April 20, 2021 (NYSCEF Doc. 12);
6. Administrative Order 124-2021 (NYSCEF Doc. 20);
7. Verified Answer of Working Families Party Respondents, sworn to April 26, 2021 (NYSCEF Doc. 23);
8. Affirmation of Alexander Rabb, Esq., in Support of Respondents’ Verified Answer in Opposition to Petitioners’ Verified Petition, Affirmed April 26, 2021, with Exhibits 1 through 4, attached (NYSCEF Docs. 24 to 28); and
9. Original Certificate of Authorization (NYSCEF Doc. 35).