Summary
In Matter of Johnson v. Lomenzo (28 A.D.2d 965, affd. without opn. 20 N.Y.2d 783), it was stipulated that under the party rules the convention should be constituted by 39 delegates and 39 alternate delegates and it was held that 20 of these would constitute a quorum.
Summary of this case from Matter of Fogarty v. LomenzoOpinion
September 25, 1967
Appeal from a judgment of Special Term, Albany County, annulling a determination of the Secretary of State which sustained the objections filed by the Liberal party candidate for the office of Justice of the Supreme Court for the Eighth Judicial District to the Conservative party certificate of nomination of Rudolph U. Johnson and John S. Marsh as candidates for the office of Justice of the Supreme Court for the Eighth Judicial District. The Eighth Judicial District contains 16 assembly districts or parts of assembly districts. It is conceded that only 13 delegates were certified for the Conservative party to the judicial district convention who represented only 4 of the 16 assembly districts in the Eighth Judicial District. On September 8, 1967, 12 of the 13 elected delegates met in convention and nominated two candidates for the office of Justice of the Supreme Court. Appellant contends that the 12 delegates did not constitute a quorum to hold a judicial convention as required by subdivisions 2 and 3 of section 132 of the Election Law. Subdivision 2 of section 132 provides that such a convention " shall be constituted by the election at the preceding fall primary, from each assembly district wholly within a judicial district and from that portion of an assembly district partially within such district, of delegates and of any alternate delegates provided for by party rules." (Italics supplied.) The rules of the Conservative party governing judicial district conventions provide for the election of "one delegate and one alternate delegate from each assembly district in the judicial district for each 900 votes or major fraction thereof cast in such assembly districts for the party candidate for governor under the party emblem in the last preceding gubernatorial election. In no event, however, shall any assembly district be entitled to less than one delegate and one alternate delegate." It is sitpulated by the parties that under the party rules the judicial district convention for the Eighth Judicial District should be constituted by the election of 39 delegates and 39 alternate delegates. Of these, 20 would constitute a quorum (Election Law, § 132, subd. 3). Since both the statute and the party rules mandated the election of delegates for each assembly district or part thereof, the election of delegates from only 4 out of 16 assembly districts did not meet the requirements of the statute and rules. The statute controls in any event ( Matter of Scully v. Lomenzo, 18 N.Y.2d 595). No judicial convention was legally constituted and the purported nominations were null and void. Judgment reversed, on the law and the facts, and petition dismissed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.