Opinion
3543-08.
August 11, 2008.
The following papers read on this motion:
Notice of Motion/ Order to Show Cause .......... 1-9 Notice of Motion ............................... 10-11 Notice of Motion ............................... 12-15 Verified Answer ................................ 16-19 Answering Affidavits ........................... 20,21 Replying Affidavits ............................ 22-26 Briefs: ........................................ 25Upon the foregoing papers, it is ordered that this motion by petitioner to contest the designating petition of Craig M. Johnson is granted. Motion by petitioners to dismiss counterclaims of respondent Craig M. Johnson is granted. Motion by respondents Kapsis and Camardi to dismiss the petition is denied.
This is a special proceeding pursuant to § 16-102 of the Election Law to contest the petitions designating Craig M. Johnson as a candidate for the Independence Party nomination for New York State Senator, 7th District at the primary election to be held on September 9, 2008. Petitioner Frank MacKay is the Chairman of the New York State Independence Party. Petitioner Ray Trujillo is a member of the Independence Party and a qualified voter who resides in the 7th State Senate District.
While Christine Imre is also named as a petitioner, there is no allegation as to her party affiliation, voter qualification, or district of residence.
Respondents James Kapsis and Michael Camardi are dissident members of the Independence Party, who purport to be members of its Nassau County Committee. Respondents John DeGrace and William Biamonte are the Commissioners of the Nassau County Board of Elections. Respondents Gregory Peterson, James Walsh, Evelyn Aquila, and Douglas Kellner are the Commissioners of the New York State Board of Elections.
The State Board of Elections appears to take no position with regard to this matter. See respondents Kapsis and Carmardi's Ex. C.
This case represents another chapter in an ongoing dispute between the New York State Independence Party and a group led by Kapsis and Camardi concerning the establishment of the Nassau County Independence Party Committee. By order dated April 19, 2006, Justice LaCava invalidated the Nassau County Committee which had been elected for the 2004-2006 term and ordered a new organizational meeting. At an organizational meeting held on September 15, 2006, respondent Bobby Kumar Kalotee was elected the Chairperson of the County Committee for the 2006-2008 term.
Nevertheless, on September 26, 2006, Kapsis, Camardi, and certain other members of the Independence Party purported to hold a Nassau County organizational meeting. At the meeting, Kapsis and Camardi also purported to adopt certain rules and regulations governing the Nassau County Committee. By letter dated December 21, 2006, the Nassau County Board of Elections determined, based upon the Independence Party Rules, that the rules and regulations adopted by Kapsis and Camardi were of "no legal force and effect."
The State Committee of the Independence Party subsequently brought an action to enjoin Kapsis and Camardi from interfering in the business and affairs of the Nassau County Committee or holding themselves out as officers of the party. ( Independence Party State Committee v. Kellner, Nassau County Index. No. 23002/07). A temporary restraining order was issued by Justice Diamond on March 24, 2008. Although respondents attempted to remove that action to the Eastern District, Judge Spatt remanded the case to the state court.
Affirmation of John Ciampoli, Esq. dated August 3, 2008 at ¶ 9.
Kapsis and Camardi, in turn, brought a proceeding against the Kalotee group, seeking, among other relief, to enjoin the Kalotee group from taking any action on behalf of the Nassau County Committee of the Independence Party and an accounting for party funds. ( Kapsis v. Independence Party State Committee, Nassau County Index No. 2917/08.) By order dated July 2, 2008, Justice Diamond dismissed the petition on the ground that the New York State Independence Party recognized the group led by Kumar Kalotee as the legitimate Nassau County Committee, and Kapsis and Camardi lacked capacity to sue on behalf of the Committee.
Meanwhile on June 28, 2008, the New York State Committee of the Independence Party adopted an amendment to its rules, authorizing the State Committee to delegate to the State Executive Committee the power to nominate, substitute, and fill vacancies for party candidates for all elective offices "falling entirely within a county in all counties having a population exceeding 750,000." On the same day, the State Committee empowered the Executive Committee to issue and file certificates of authorization "for all offices in the Counties" of Nassau, Suffolk, Westchester, and Erie. Election Law § 6-120(3), known as the Wilson-Pakula Law, provides that the rules of a political party may provide for a committee to authorize the designation or nomination of a person as a candidate for any office who is not enrolled as a member of such party. See Master v. Pohanka, 10 NY3d 620 (2008). The committee need not represent the political subdivision of the office for which the designation or nomination is to be made(Election Law § 6-120). The only requirements are that the committee act by majority vote and a quorum be present(Id). The resolution of the Independence Party State Committee, empowering the Executive Committee to issue certificates of authorization, purports to be adopted pursuant to this Election Law provision.
The term "designation" means any method in accordance with the Election Law "by which candidates for party nomination for public office or for election to any party position may be named for the purpose of any primary election." (Election Law § 1-104[7]).
On July 14, 2008, the Executive Committee filed with the board of elections a certificate of authorization designating and nominating Barbara Donno as the candidate of the Independence Party for State Senator in the 7th District. Donno is not an enrolled member of the Independence Party. Although Nicole Gadaleta had initially been designated by the Independence Party as a candidate for the position, Donno was substituted after Gadaleta declined the nomination on July 11, 2008.
Barbara Donno was named as a respondent in the order to show cause commencing this proceeding.
Meanwhile, on July 10, 2008, Kapsis and Camardi had filed petitions with the Board of Elections purporting to designate Craig M. Johnson as a candidate for the Independence Party nomination for New York State Senator for the 7th District at the primary election to be held on September 9, 2008. On July 15, 2008, Kapsis and Camardi filed with the Board a certificate of authorization, purporting to designate Craig Johnson as a candidate for nomination by the Independence Party for State Senator in the 7th District at the primary election on September 9, 2008 and the general election to be held on November 4, 2008.
On July 17, 2008, Colleen Dundon filed with the Board of Elections a general objection to the certificate of authorization designating Johnson. In her "specifications of objections" filed on July 23, 2008, Dundon objected to Johnson's designating petition on the ground that his authorization had not been issued by the State Executive Committee. The Board of Elections declared the authorization designating Craig Johnson as a candidate for nomination invalid on July 28, 2008.
Although the petition alleges that Coleen Dundon is a qualified voter in the 7th Senate District, Dundon is not named as a petitioner in the caption of the proceeding.
This petition seeking to contest Johnson's designating petition was filed on July 23, 2008. Petitioners assert that Johnson's designating petition is invalid because it contains numerous irregularities and a valid certificate of authorization has not been filed. In his answer, respondent Craig Johnson counterclaims that the substitution of Donno for Gadaleta was a fraud on the Independence Party members. Johnson also asserts a counterclaim, denominated a cross claim, against the Nassau County Independence Party Committee, claiming that their designating petitions for party positions are "permeated with fraud."
To the extent that the petition seeks a declaration of nullity as to the authorization already declared invalid by the Board of Elections, it is dismissed as moot. See Gregory v. Bd. of Elections, 93 AD2d 894 [2d Dep't 1983][Titone, J. concurring]).
Respondents Kapsis and Camardi move to dismiss the petition pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction and pursuant to CPLR 3211(a)(10) on the ground of failure to join a necessary party. Respondents also assert that the petition is "fatally defective" in that Chairman Mackay lacks standing to bring the proceeding, Coleen Dundon is not named as a petitioner, and petitioners' challenge is barred by the statute of limitations. Petitioners move to dismiss Johnson's counterclaim and cross claim on a variety of grounds, including improper interposition of a cross claim, lack of specificity as to pleading, untimeliness, and lack of standing.
Election Law § 16-102(1) provides that, "The nomination or designation of any candidate for any public office. . ., or the holding of an uncontested primary election, by reason of a petition for an opportunity to ballot having been filed, . . . may be contested in a proceeding instituted in the supreme court by any aggrieved candidate, or by the chairman of any party committee, or by a person who shall have filed objections, as provided in this chapter." However, the section further provides that the chairman of a party committee may not bring a proceeding "with respect to a designation or the holding of an otherwise uncontested primary." § 16-102(1) prohibits a chairman of a party committee from commencing a proceeding to invalidate a designating petition, regardless of whether a designating petition on behalf of another candidate has been filed ( D'Alvia v. DiGiacomo, 175 AD2d 891 [2d Dep't 1991]). Accordingly, Chairman MacKay does not have standing to bring this proceeding.
Election Law § 6-154(2) provides that written objections to a designating petition may be filed by any voter registered to vote for such public office. Such objections shall be filed with the officer or board with whom the original petition is filed within three days after the filing of the petition(Id). When such an objection is filed, specifications of the ground of the objections shall be filed within six days thereafter(Id). In order to have standing to contest a designating petition, an objector must comply with these statutory time requirements ( Bennet v. Justin, 77 AD2d 960 [3d Dep't 1980]).
Because Coleen Dundon did not file an objection to Johnson's designating petition within three days of the filing of the petition, Dundon is without standing to bring this proceeding. As a result, there is no point in adding her as a petitioner. However, in order to secure the just and speedy determination of this proceeding, the court deems the caption amended to show Barbara Donno, the Independence Party candidate, as a petitioner rather than a respondent. See CPLR 104. As an aggrieved candidate, Donno has standing to contest Johnson's designating petition. Accordingly, respondents Kapsis and Camardi's motion to dismiss the petition for lack of standing is denied.
Election Law § 16-102(2) provides that a proceeding with respect to a petition shall be instituted within 14 days after the last day to file the petition. Pursuant to Election Law § 6-158(1), a designating petition shall be filed not later than the ninth Thursday preceding the primary election. The ninth Thursday preceding the primary election was July 10, 2008. Since this proceeding was instituted by July 24, 2008, it is timely. Contrary to respondents' position, the ten day statute of limitations provided by Election Law § 16-102(2), which applies to a proceeding with respect to a meeting of a party committee, has no application to this proceeding.
Respondents argue that the petition must be dismissed because petitioners have not served all of the members of the Nassau County Committee of the Independence Party. CPLR § 1001 provides that persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment shall be made plaintiffs or defendants. The court notes that Justice Diamond held that the group led by Kapsis and Camardi are not the legitimate Nassau County Committee. Pursuant to the doctrine of collateral estoppel, a party may be precluded from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity ( Buechel v. Bain, 97 NY2d 295, 303). The issue of the status of respondents' group as the legitimate Nassau County Committee was necessarily decided against them in the prior proceeding before Justice Diamond. As respondents are collaterally estopped from asserting that their group is the legitimate Nassau County Committee, any unnamed members of respondents' purported committee cannot be necessary parties to this proceeding. Moreover, respondents Kapsis, Camardi and Johnson were served with the order to show cause and supporting papers in this proceeding. Accordingly, respondents Kapsis and Camardi's motion to dismiss the proceeding for failure to join a necessary party or lack of personal jurisdiction is denied.
Generally, courts will not interfere with the internal affairs of a political party ( Master v. Pohanka, supra,10 NY3d 620). As the U.S. Supreme Court and our Court of Appeals have noted, a political party has "discretion in how to organize itself, conduct its affairs, and select its leaders"(Id). The resolutions of the State Committee of the Independence Party might have been more artfully drafted. However, it is clear that their intention was to empower the Executive Committee to authorize the designation or nomination of nonparty members as candidates for Congress, the State Senate, and the Assembly, where the corresponding legislative districts lie within Nassau, Suffolk, Erie, or Westchester County.
The purpose of Election Law § 6-120(3) is to "protect the integrity of political parties and to prevent the invasion into or capture of control of political parties by persons not in sympathy with the principles of such political parties" (Master v. Pohanka, supra,10 NY3d 620). If a political party's rules permit authorizations to be issued only by the State Executive Committee, a certificate of authorization issued by a county committee is invalid(Id). Similarly, if a candidate who is not a party member does not possess a valid Wilson-Pakula authorization, he is prohibited from filing a designating petition(Election Law § 6-120; Hunter v. Bd of Elections, 32 AD3d 662 [3d Dep't 2006]).
Accordingly, the petition contesting the designating petition of Craig M. Johnson is granted. The Nassau County Board of Elections is directed not to place Craig M. Johnson on the ballot as a candidate of the Independence Party for the position of State Senator, 7th District at the primary election to be held on September 9, 2008 or the general election to be held on November 4, 2008.
Petitioners correctly note that a cross claim may not be asserted in a special proceeding without leave of court(CPLR 402; White v. Bilal, 21 AD3d 573 [2dDep't2005]). However, because the official Independence Party candidate, Barbara Donno, and the legitimate Nassau County Committee are adverse to Johnson, the court construes Johnson's claims as counterclaims which were properly interposed.
Because Johnson does not allege that he filed timely objections to Donno's authorization, he lacks standing as citizen objector(Election Law § 16-102). The court notes however that Johnson is the Democratic candidate for State Senate in the 7th District. A candidate of one party will be denied standing to commence a proceeding to invalidate the designation of a candidate of an opposing party where the challenge is to the opposing party's "internal affairs and/or operating functions" ( Breslin v. Conners, 10 AD3d 471 [3d Dep't 2004]). Standing is routinely denied where the challenge is based on an invalid authorization pursuant to Election Law § 6-120(Id). Johnson's claims of fraud with respect to the substitution of Donno as a candidate and the organization of the Nassau County Committee are clearly challenges to the internal affairs of the Independence Party. Since Johnson lacks standing to assert these claims, the court need not decide whether the fraud claims have been plead with sufficient detail as required by CPLR 3016(b) or whether the claims are timely. Petitioners' motion to dismiss respondent Johnson's counterclaims is granted. This shall constitute the decision and order of the court.
Johnson's counterclaims were interposed when his answer was served on July 24, 2008. CPLR § 203(d). Although Election Law § 16-102(2) provides that a proceeding with respect to a petition shall be instituted within 14 days after the last day to file the petition, it does not specify a time period in which to institute a proceeding to challenge an authorization. Arguably the applicable period is the 10 day period in which to challenge a "meeting of a party committee." Since Donno's certificate of substitution is dated July 12, 2008, Johnson's challenge to Donno's authorization is untimely unless it may be deemed to arise from the "transactions or occurrences" asserted in the petition and CPLR § 203(d) is applicable to special proceedings. A similar analysis applies to Johnson's challenge with respect to the designating petitions of the Nassau County Committee.