Opinion
Index EF2022892
05-06-2022
BENJAMIN J. POTIKER, Petitioner, v. RALPH BOHLKE, MARK LAVIOLETTE, LINDA BOHLKE, MARK KIRKER, RACHEL RISSETTO And RAUL RISSETTO, purported Conservative Party Judicial Delegate and/or Alternate Judicial Delegate candidates for the 112th Assembly District, 4th Judicial District of New York State, and NEW YORK STATE BOARD OF ELECTIONS, Respondents.
Joseph T. Burns, Esq., attorney for Petitioner-Objector Greenberg Traurig, LLP (Robert M. Harding, Esq. And Joshua L. Oppenheimer, Esq.) for Respondent-candidates Aaron Suggs, Esq. for Respondent New York State Board of Elections
Unpublished Opinion
Joseph T. Burns, Esq., attorney for Petitioner-Objector
Greenberg Traurig, LLP (Robert M. Harding, Esq. And Joshua L. Oppenheimer, Esq.) for Respondent-candidates
Aaron Suggs, Esq. for Respondent New York State Board of Elections
DECISION AND ORDER
HON. MICHAEL R. CUEVAS JUSTICE
INTRODUCTION
Petitioner, Benjamin J. Potiker (hereinafter referred to as "Potiker" or "Petitioner"), instituted this proceeding pursuant to Election Law Article 16 by filing a Verified Petition and Exhibits, an Emergency Affirmation of Counsel and a proposed Order to Show Cause with the Saratoga County Clerk on April 17, 2022. Due to the recusals by other Justices, this proceeding was assigned to this Court on April 20, 2022. An Order to Show Cause was then issued directing the manner of service, the dates for filing and service of further pleadings and setting the date for hearing. Respondent-candidates (Ralph Bohlke, Mark Laviolette, Linda Bohlke and Mark Kirker) (hereinafter "Responding Candidates"), filed a Verified Answer and Objections in Point of Law on April 26, 2022. Respondent-candidates, Rachel Rissetto and Paul Rissetto, did not answer or appear. Respondent New York State Board of Elections (hereinafter "the Board") filed an Answer, taking no position and also filed copies of its records relevant to this proceeding, as directed by the Order to Show Cause. On April 28, 2022, Petitioner filed a Reply with additional exhibits.
On the return date, counsel stipulated that there was no dispute as to the material facts in this proceeding and that all exhibits (both those submitted by Petitioners and those submitted by the Board) could be received into evidence on consent. As Counsel agreed the issues were strictly legal in nature, the Court heard oral argument only. The Court adjourned the proceeding as the New York State Board of Elections was to make a final determination on objections on May 2, 2022. On the adjourned date, counsel stipulated that the proceeding was fully submitted for the Court to decide the legal issues regarding the cover sheet, frustration of the statutes and over designation issues.
FACTUAL BACKGROUND
A. Background
Petitioner Potiker is a registered voter, enrolled in the Conservative Party. Potiker resides in the 112th Assembly District which is in the 4th Judicial District. NYSCEF Document 1, Petition. ¶2. Respondent-candidates are all registered voters, enrolled in the Conservative Party and residents of the 112th Assembly District. NYSCEF Document 1, ¶¶ 3 - 8. On or about April 4, 2022, a Conservative Party designating petition, with a Cover Sheet indicating it was Volume 1 of 1, was filed with the Board which purported to designate the Responding Candidates for the party position of Delegate and/or Alternate Delegate to the Conservative Party 4th Judicial District Nominating Convention. NYSCEF Document 4. On or about April 7, 2022, another Conservative Party designating petition was filed with the Board on behalf of Responding Candidates, along with a Cover Sheet indicating that it was Volume 2 of 2. NYSCEF Document 5. On April 8, 2022, an Amended Cover Sheet was filed for Volume 1, on April 8, 2022, stating it was Volume 1 of 2. NYSCEF Document 4.
There is no evidence in the record as to whether this was filed in response to a Notice to Cure or whether the April 8, 2022 filing date was significant.
Pages 1 -3, 5, 6, 8, 10 -12, 14, 15, 18 -20, 25 and 26 of Volume 1 listed Ralph F. Bohlke and Mark Laviolette as candidates for the party position of Delegate with Linda F. Bohlke and Mark Kirker as candidates for the position of Alternate Delegate.
Pages 4 and 7 of Volume 1 list Rachel M. Rissetto and Mark Laviolette as candidates for the position of Delegate and Raul J. Rissetto and Mark Kirker as candidates for Alternate Delegate. On these last two pages, Mark Kirker address is listed as "138 Birch Ln., Glenville, NY 12302". Whereas on the other pages of Volume 1, Kirker's address is listed as "12 Ralmar Drive, Glenville, NY 12302".
Pages 9, 13, 16, 17, 21, 22, 23 and 24 of Volume 1 name Rachel Rissetto, Mark Laviolette, Raul Rissetto and Mark Kirker as candidates for the position of Delegate, with no candidates listed for the position of Alternate Delegate.
Petitioner filed a General Objection on April 7, 2022 and Specific Objections on April 13, 2022 with the New York State Board of Elections against Respondent-candidates' Conservative designating petitions. NYSCEF Document 6. According to the NYS Voter Signature Requirements by Assembly District (NYSCEF Document 8), a Conservative Party designating petition for the 112th Assembly District must contain a minimum of 101 valid signatures. According to the Conservative Party Call (NYSCEF Document 7), there are two Judicial Delegate positions available in the 112th Assembly District.
The Fourth Judicial District in New York consists of the entirety of eleven counties: Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, Saratoga, Schenectady, St. Lawrence, Warren and Washington. The 108th Assembly District is comprised of portions of Saratoga County.
The New York State Board of Elections' Political Calendar (NYSCEF Document 5) established April 7, 2022 as the last day to file designating petitions.
On May 2, 2022, the Board issued a Determination finding that the two-volume petition was filed on April 7, 2022 and contained a total of 276 signatures. Of the signatures submitted, the Board found 104 to be invalid, leaving 172 valid signatures and determined the "petition contains the requisite number of signatures required for the designation sought, and is valid."
THE LAW AND DISCUSSION
A. OVER DESIGNATION
Election Law §6-134 (3) states:
3. If a voter shall sign any petition or petitions designating a greater number of candidates for public office or party position than the number of persons to be elected thereto his signatures, if they bear the same date, shall not be counted upon any petition, and if they bear different dates shall be counted in the order of their priority of date, for only so many designees as there are persons to be elected.
In applying this section, the Fourth Department, in Matter of Elgin v. Smith, 10 A.D.3d 483 (4th Dept, 2004), found,
Here, each voter signature at issue designated on the same date a greater number of candidates for public office or party position than the number of persons to be elected. Thus, the designating petition is invalid in its entirety (see Matter of DeCicco v. Chemung County Board of Elections, 93 N.Y.2d 1008, 1009-1010 [1999]}.
The Elgin case was a clear case of over designation because all of the pages of the designating petition purported to designate five candidates each for election to the positions of Delegate and Alternate Delegate to the Independence Party Judicial Nominating Convention from the 138th Assembly District, Eighth Judicial District when only three Delegate and Alternate Delegate positions were up for election. The issue on appeal was not whether the purported candidates were to be stricken from the primary election ballot, but whether a Committee on Vacancies could fill the three Delegate and Alternate Delegate positions. The Appellate Division held that since the designating petition was invalidated in its entirety, the Committee on Vacancies could not act.
More recently, the Appellate Division, Second Department, affirmed Supreme Court's dismissal of a petition to validate designating petitions for the party positions of Delegate and Alternate Delegate to the Republican Judicial District Convention for the 11th Judicial District on the grounds of over designation. Here too, the case was clear, the petition purported to designate two candidates for each position when only one was authorized. The Court cited the language of Election Law §6-134 (3) finding:
Here, the designating petitions over-designated the number of candidates eligible for the positions of Delegate and Alternate Delegate to the Republican Judicial District Convention for the 11th Judicial District, by designating two candidates rather than the requisite one candidate for each position. Although the Supreme Court properly upheld the Board's determination invalidating the designating petitions insofar as they related to the candidates for those positions pursuant to Election Law § 6-134(3) (see Matter of DeCicco v. Chemung County Bd. of Elections, 93 N.Y.2d at 1010, 697 N.Y.S.2d 245, 719 N.E.2d 526; see also Matter of Elgin v. Smith, 10 A.D.3d at 484, 781 N.Y.S.2d 182), ...Murray v. Simon, 194 A.D.3d 894, 896, 145 N.Y.S.3d 610, 612, leave to appeal denied, 36 N.Y.3d 913, 169 N.E.3d 247 (2021).
If it weren't abundantly clear from the language of Election Law §6-134, the Elgin and Murray cases clarify that it is the signers of designating petitions who over designate when they sign petitions that purport to designate more candidates than there are petitions. In the instant case, only the signers of Petition Pages 9, 13, 16, 17, 21, 22, 23 and 24 of Volume 1 over designated. Curiously, the Board did not invalidate all of the signatures on those pages. This Court finds that the signatures that the Board counted as valid signatures in Volume I on page 16 (4 signatures), page 21 (4 signatures), page 22 (2 signatures), page 23 (10 signatures) and page 24 (1 signature) are invalid due to over designation of four candidates for the Delegate position when only two positions are available. This Court finds these additional 21 signatures invalid, as all signers on those pages over designated and all signatures on those pages should have been invalidated.
In addition, the Board counted as valid the following four signatures in Volume 1, page 7 where the petition page purported to designate a different slate of candidates (Rachel Rissetto and Mark Laviolette for Delegate and Raul J. Rissetto and Mark Kirker for Alternate Delegate) than was indicated on the cover page of the petition and most of the other pages. Therefore, these 4 signatures are found to be invalid.
This Court's invalidation of the above signatures reduces the number of potentially valid signatures in Volume 1 to 83, and in the petition to 147, subject to Petitioner's other legal arguments.
Potiker's more cogent argument for invalidity of the entire petition rests on a determination of whether there has one petition filed or three separate petitions and, if the latter, whether the discrepancies in the cover sheets, taken either separately or in conjunction with the other errors in the petition sheets submitted, frustrate the notice an informational purposes of the statute to such a degree as to invalidate the entire petition.
The Board treated the two volumes submitted as one petition. We agree with that treatment as each volume contained a Conservative Party Designating Petition Cover Sheet listing the names of Ralph Bohlke and Mark Laviolette for the position of Delegate and the names of Linda Bohlke and Mark Kirker for the position of Alternate Delegate.
In the Saunders case cited by Petitioner, the initial problem addressed by the Court was that the cover sheet to Volume 1 of 3 was a Libertarian Party cover sheet whereas Volumes 2 and 3 where Democratic Party cover sheets. The Court found,
The errors in the originally-filed cover sheets here, however, were not mere violations "of some technical requirement having no logical bearing upon the underlying purpose of preventing fraud" (Matter of Hogan v. Goodspeed, 196 A.D.2d 675, 678, 601 N.Y.S.2d 356 [3d Dept. 1993], affd in part and appeal dismissed in part 82 N.Y.2d 710, 602 N.Y.S.2d 793, 622 N.E.2d 293 [1993]). The cover sheets identified one petition only, and the cover sheet to the first volume labeled it a petition for the Libertarian Party. To permit respondent to submit amended cover sheets after the deadline for filing designating petitions in order to separate volumes two and three of the originally-filed petition into a new petition for the Democratic Party "would undermine procedural safeguards against both fraud and confusion" inasmuch as the original filing would lead interested parties to conclude that no separate Democratic Party designating petition had been filed (Matter of Balberg v Board of Elections in the City of N.Y., 109 AD.3d 910, 912, 972 N.Y.S.2d 271 [2d Dept. 2013]). Thus, contrary to respondent's contention, because the errors in the original cover sheets could "serve to frustrate the filing of general objections pursuant to Election Law § 6-154," they were not technical violations subject to cure (Matter of Armwood v. McCloy, 109 A.D.3d 558, 560, 970 N.Y.S.2d 802 [2d Dept. 2013], Iv denied 21 N.Y.3d 861, 2013 WL 4437170 [2013]), and the court therefore properly granted the petition.
Saunders v. Egriu, 183 A.D.3d 1292, 1293-94, 123 N.Y.S.3d 789, 791, leave to appeal denied, 35 N.Y.3d 905, 149 N.E.3d 52 (2020)
Here, we are only dealing with a designating petition of one party as reflected on the cover pages to both volumes. Hence, we do not have the same concern that the Saunders court did that potential party objectors might miss the opportunity to file objections due to the misstatement on the Volume 1 cover page as to the party and/or number of volumes. Also here, the Respondents are not seeking to carve out any other petitions designating different candidates or candidates for a different party. The objectors here were not in a substantially different position from any objectors who examine petition pages and signatures for evidence of invalidity.
While Matter of Pecoraro v. Mahoney, 65 N.Y.2d 1026 (1985) found the failure to list the number of signatures for each candidate for different offices contained within the petition fatal as "not a mere formalism" and frustrating the notice and informational purpose of the statute, it is inapplicable to the circumstances here where respondents are not seeking in their designation petition cover sheet to claim designation of any candidates other than Ralph Bohlke and Mark Laviolette for Delegate and Linda Bohlke and Mark Kirker for Alternate Delegate. For substantially, the same reasoning, Ruiz v. Saez, 68 N.Y.2d 154 (1986) is factually distinguishable here.
The issue of the two different addresses listed for Alternate Delegate candidate Mark Kirker is raised as potentially confusing regarding the cover sheet and petition for the entire slate of candidates. The Court finds that the issue is whether the petition is valid as to candidate Mark Kirker, separately. It raises the question of whether he failed to list his actual residence, at least on some of the petition pages. In providing two different addresses, without explanation, particularly if there were insufficient signatures to constitute a valid petition for the Mark Kirker residing at 12 Ralmar Drive, Glenville, NY 12302, it could raise the question as to whether there are sufficient valid signatures to qualify Mark Kirker for designation the party position sought. See, Winn v. Washington County Bd. Of Bee, 196 A.D.2d 674 (3d Dept, 1993). Since this specific issue was not raised in the specific objections, pleadings or argument, the Court does not decide this issue.
The Court also notes that while Responding Candidates initially raised an Objection in Point of Law claiming that the Petition was not verified, that issue was resolved by a review of pages 16 and 17 of the Verified Petition and denied by the Court. NYSCEF Document No. 1. The other Objections in Point of Law not having been pursued and being without factual basis, are denied
B. Conclusion
This Court finds that the Responding Candidates' Petition is valid and therefore, the names of Ralph Bohlke and Mark Laviolette shall appear on the Primary Election ballot for the Conservative Party Primary to be held June 28, 2022, as candidates for the office of Delegate, 4th Judicial Nominating Convention, in the 112th Assembly District and the names of Linda Bohlke and Mark Kirker shall appear likewise as candidates for Alternate Delegate.
THE COURT'S RULING
For the reasons stated above, it is hereby
ORDERED, that Petition is hereby in all respects DENIED; and it is further
ORDERED, that Responding Candidates Designating Petition be and hereby is found to be valid; and it is further
ORDERED, that the New York State Board of Elections be and hereby is directed to accept Responding Candidates' Designating Petition as timely and valid; and it is further
ORDERED, that the New York State Board of Elections be and hereby is directed to place the names of Ralph Bohlke and Mark Laviolette on the ballot for the Conservative Party Primary Election to be held June 28, 2022, as candidates for the party positions of Delegate, 4th Judicial Nominating Convention, in the 112th Assembly District and the names of Linda Bohlke and Mark Kirker as candidates for the party positions of Alternate Delegate, 4th Judicial Nominating Convention, in the 112th Assembly District, respectively; and it is further
ORDERED, that this constitutes the Decision and Order of the Court.