Opinion
Argued August 26, 1985
Decided August 28, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Irving J. Fudeman, J.
Dennis E. Ward for appellant.
H. Kenneth Schroeder, Jr., and Thomas J. Szymanski for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the judgment of Special Term, Erie County, invalidating respondents' joint designating petition reinstated.
Respondents, Stanley M. Bolas and Richard J. Arcara, together with Alfreda Slominski, submitted a joint designating petition for the Conservative Party nominations for Erie County Sheriff, District Attorney and Comptroller. Volume 1 indicated on its cover sheet that it consisted of one volume containing 87 pages and 1,006 signatures, and that it contained pages 1 through 87. Volume 2, filed two days later, has been disavowed by the candidates. As found by Special Term, respondents' cover sheet does not set forth the number of signatures for each of the candidates; it understates the total number of signatures; several sheets of an unrelated designating petition are intermingled with the pages of respondents' petition; the pages of the petition are not consecutively numbered, some being out of order and one unnumbered; and the statement of one subscribing witness is illegible.
Although the statute permits petitions of several candidates to be joined, each candidate's petition is a petition for a separate office, and if the joint petition consists of more than 10 sheets the cover sheet must set forth the total number of signatures designating the candidate for each office and the pages on which they may be found ( see, Election Law § 6-134; Matter of Delle Cese v Black, 63 N.Y.2d 694). This requirement is not a mere formalism. Unless the data supporting each candidacy is supplied and identified, the notice and informational purposes of the statute are completely frustrated. The figures supplied on the cover sheets of these volumes identified only the total number of signatures contained without identifying those supporting the individual candidates. Faced with this lack of specificity, election officials and interested parties had no choice except to search through the volumes page by page to determine the sheets designating each candidate and the validity of the signatures contained on them.
Nor can the several additional defects found in respondents' petition, when considered in the aggregate, be dismissed as inconsequential. While "there is room for judicious decision-making within the confines marked" by Matter of Hargett v Jefferson ( 63 N.Y.2d 696) and Matter of Jonas v Black ( 63 N.Y.2d 685, affg 104 A.D.2d 466) ( Matter of Staber v Fidler, 65 N.Y.2d 529), that process cannot nullify the requirements of the Election Law ( see, Matter of Sheehan v Scaringe, 60 N.Y.2d 795, 796).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and TITONE concur; Judge JASEN dissents and votes to affirm in an opinion in which Judge MEYER concurs.
Order reversed, without costs, and judgment of Supreme Court, Erie County, reinstated in a memorandum.
Because in my view the decision reached today exalts hypertechnical form over substantive merit and exacts a draconian penalty wholly disproportionate to the supposed mistake on respondents' designating petition, I respectfully dissent.
The designating petition in question named respondents Slominski, Arcara and Bolas as candidates for the Conservative Party nominations for Erie County Comptroller, Erie County District Attorney and Erie County Sheriff, respectively. The cover sheet stated the public office sought by each respondent, their names and addresses, the total number of pages in the attached volume, the number of the first and last pages of the volume, and the number of signatures contained therein.
Although respondents actually submitted two separate volumes, the first volume alone is deemed by the court to be respondents' designating petition and, consequently, only the cover sheet attached to that volume is at issue.
The majority deems the designating petitions invalid and, thereby, removes respondents from the primary election ballot as candidates for the Conservative Party nomination, on the seemingly incongruous ground that the very same number of signatures contained within the petition was not repeated three separate times — once for each respondent. Such a ruling is neither supported by statute nor is it mandated by the decisional law of this court. Moreover, the disqualification of respondents' candidacies on this rigidly formalistic and entirely unnecessary ground effectuates an arbitrary and far too drastic interference with respondents' and their supporters' fundamental 1st Amendment rights.
The statutory provision in question, Election Law § 6-134, sets forth in relevant part the following pertinent rules governing designating petitions:
"1. A designating petition may designate candidates for nomination for one or more public offices or for nomination for election to one or more party positions, or both, but designations or nominations for which the petitions are required to be filed in different offices, may not be combined in the same petition.
"2. Sheets of a designating petition shall be bound together in one or more volumes. The sheets in each volume shall be numbered consecutively at the foot of each sheet, beginning with number one. There shall be a cover sheet attached to each petition consisting of ten or more sheets and each volume thereof. Each cover sheet shall indicate the office for which each designation and nomination is being made, the name and residence address of each candidate, the total number of pages comprising the petition, and the total number of signatures contained in such petition. If the petition is filed in two or more volumes, the cover sheet for each volume shall also contain the following additional information: the number of the volume, the total number of pages in the volume, the total number of signatures contained in the volume, and the numbers of the first and last pages contained therein.
* * *
"8. A signer need only place his signature upon the petition, and need not himself fill in the other required information." (Emphasis added.)
As is clear from a reading of the statute, one petition may serve to designate more than one candidate, each running for a different office (subd 1). As is just as clear, the cover sheet of the signed petition must state the office being sought by each candidate, their respective names and addresses, and the total number of pages and the total number of signatures contained in that single petition (subd 2). The statute says absolutely nothing about additional requirements regarding the total number of signatures when the same petition designates more than one candidate. There is certainly no requirement that the same number of total signatures contained in the same petition be recited several different times on the same cover sheet whenever more than one candidate is named on a single petition. Indeed, this is made increasingly clear from the identical provision contained in the same statutory subdivision regarding the total number of signatures in each volume. Likewise, it would be entirely unwarranted to require that the same number of signatures for the same volume be repeated once for each candidate on the same cover sheet. ( See, Matter of Delle Cese v Black, 63 N.Y.2d 694, 695 [Meyer, J., dissenting in part].)
The majority can point to no language in the statute which mandates such a requirement. Rather, authority is derived solely from an unwarranted extension of the holding in Matter of Delle Cese v Black ( 63 N.Y.2d 694). ( See, discussion infra.)
So here, it seems entirely unreasonable and unnecessary to require that respondents state the total number of signatures in their one-volume designating petition three different times on the same cover sheet. The requirement adds no information, prevents no fraud or mistake, creates no differentiation among the signatures, and, indeed, serves none of the policy purposes legitimately underlying the Election Law. Certainly, enforcement of such a mechanically formalistic requirement does not warrant invalidation of the designating petition and removal from the ballot.
Matter of Delle Cese v Black ( 63 N.Y.2d 694, supra) upon which the majority rely, is distinguishable. In Delle Cese, candidates for the public positions of judicial delegate and party positions of Bronx County Committee submitted a joint designating petition. In that case, there existed differing minimum signature requirements necessary to qualify candidates for public and party positions. Here, in contrast, the public positions of Erie County District Attorney, Erie County Sheriff and Erie County Comptroller have identical minimum signature requirements. In view of this "unity of interest" among the candidates for public positions in Erie County, and the lack of any realistic risk of administrative confusion ( Matter of Staber v Fidler, 65 N.Y.2d 529) the single recitation of the total number of signatures satisfied the statutory requirement. ( See, Matter of Seda v Richards, 89 A.D.2d 952, affd 57 N.Y.2d 737; Matter of Castillo v Maclara, 63 N.Y.2d 682; Matter of Grancio v Coveney, 60 N.Y.2d 608.)
The other minor discrepancies in respondent's petition, noted by the majority, whether viewed individually or collectively, are, as found by the Appellate Division, insignificant and inconsequential. This is particularly true here where it is conceded that the designating petition contains nearly three times the required number of signatures. To invalidate the entire designating petition containing 1,049 valid signatures, where only 367 are required, does not effectuate the policy of avoiding the risk of confusion and deception in our electoral process. ( See, Matter of Staber v Fidler, 65 N.Y.2d 529, supra.)
For all these reasons, I would affirm the order of the Appellate Division.