Opinion
09-10-2021
In the Matter of the Application of Sarah A. Salem, Aggrieved Candidate, and VINCENT PEDI, Objector, Petitioners, v. Christopher D. Petsas and JENNA A. LIGUORI, Respondent-Candidates, and MICHAEL MCCORMACK and THERESA HOFFMAN, Respondents, THE DUTCHESS COUNTY BOARD OF ELECTIONS, and HANNAH BLACK AND ERIK HAIGHT, Commissioners of Elections, Respondents
The Petitioners are represented by: Michael Treybich, Esq. Respondent Haight is represented by: John Ciampoli, Esq. The Democratic BOE Commissioner (Hannah Black) is represented by Daniel Miller, Esq.
The Petitioners are represented by: Michael Treybich, Esq.
Respondent Haight is represented by: John Ciampoli, Esq.
The Democratic BOE Commissioner (Hannah Black) is represented by Daniel Miller, Esq.
Michael G. Hayes, J.
The Court read and considered the following documents in this proceeding:
PAPERS NUMBERED
ORDER TO SHOW CAUSE 1
VERIFIED PETITION 2
EXHIBITS 3
ANSWER (HANNAH BLACK) 4
MEMORANDUM OF LAW 5
ANSWER AND CROSS-PETITION (ERIK HAIGHT) 8
EXHIBITS 9
STIPULATED EXHIBITS (1-7) 10
BACKGROUND
Sarah Salem is a member of the Democratic Party, and the incumbent City of Poughkeepsie Council Member At-Large. Christopher Petsas is also a member of the Democratic Party, and is the incumbent City of Poughkeepsie First Ward Council Member.
Earlier this year, Petsas challenged Salem in the Democratic Party Primary for the Council Member at Large nomination. Salem won that primary election, and will be on the ballot in the November general election as the Democratic candidate.
Jenna Liguori was duly nominated and designated as the Republican candidate for City of Poughkeepsie Council Member at Large. However, Liguori has signed documents disqualifying herself as a candidate because she has moved out of the City of Poughkeepsie, and will be unable to satisfy the qualifications of that office if she is elected.
The Republican Party has filed a Certificate of Substitution by Party Committee After Disqualification with the Dutchess County Board of Elections ("DCBOE"). The Certificate of Substitution nominates and designates Petsas as the Republican candidate for Council Member at Large, to fill the vacancy created by Liguori's disqualification.
The Certificate of Substitution has been signed by Michael McCormack and Theresa Hoffman, as Presiding Officer and Secretary of the Republican Committee. The Certificate of Substitution is accompanied by a Consent by Substituted Candidate, signed by Petsas and accepting the Republican nomination for Council Member at Large.
Vincent Pedi is a registered voter in the City of Poughkeepsie who, along with Salem, has filed general and specific objections to the Certificate of Substitution and Consent. By their Petition, Salem and Pedi now seek a judicial declaration that there is a vacancy in the Republican nomination/designation for Council Member at Large by reason of Liguori's disqualification. Petitioners also seek a judicial declaration that the Certificate of Substitution and Consent by Substituted Candidate are null and void because they were not filed with the DCBOE within 10 days of Liguori's disqualification as required by Election Law § 6-158(8). Finally, Petitioners seek a judicial declaration that the Certificate of Substitution and Consent are null and void because McCormack and Hoffman also failed to timely file a certificate authorizing the nomination or designation of Petsas (a non-Republican) as the Republican candidate for Council Member at Large, as required by Election Law § 6-120(3).
The Court signed an Order to Show Cause on August 27, 2021, directing Petitioners to serve the respondents by August 30, 2021, and directing the parties to appear for a hearing on September 3, 2021. Petitioners subsequently filed affidavits of service establishing prima facie compliance with these service requirements. By request and consent of the parties, the September 3 hearing was adjourned to September 8, 2021. The parties also agreed that all responsive papers to the Petition would be filed no later than September 7, 2021.
Hannah Black is the Democratic Commissioner of the DCBOE. On September 7, 2021, Black's counsel filed a Verified Answer and Memorandum of Law supporting the Petition.
Erik Haight is the Republican Commissioner of the DCBOE. On September 7, 2021, Haight's counsel filed a combined Verified Answer and Cross-Petition. The Answer opposed the Petition, and asserted four Affirmative Defenses, Objections, and Motions to Dismiss seeking dismissal of the Petition. By that same document, Haight sought leave to proceed with the Cross-Petition, which seeks an Order compelling the Commissioners of the DCBOE to meet and to certify that there is a vacancy in the Republican nomination for Council Member at Large.
The hearing was conducted on September 8, 2021. Haight and Black attended the hearing, and were represented by counsel. Salem and Pedi did not attend the hearing, but were represented by counsel. McCormack and Petsas attended the hearing, but were not represented by counsel. Liguori and Hoffman did not attend the hearing.
During the hearing, I granted Haight's request for leave to proceed with the Cross- Petition. I also granted the requests of McCormack and Petsas for permission to join in the Cross-Petition. Given the time-sensitive nature of this proceeding, I also dispensed with any further written submissions, and instead provided Petitioners' counsel and Black's counsel with the opportunity to respond to the Cross-Petition during the hearing.
Counsel and the unrepresented parties who attended the hearing agreed to proceed based upon a series of Stipulated Exhibits and Stipulated Facts. At Petitioners' request, I also took judicial notice of the City of Poughkeepsie Charter. And at Haight's request, I took judicial notice of the 2021 Official Political Calendar published by the New York State Board of Elections. Finally, I heard oral arguments in support of, and in opposition to, the Petition and Cross-Petition.
The following constitutes the Decision, Order and Judgment of the Court based upon the stipulated evidence and the applicable law, and giving thoughtful consideration to the arguments advanced by the parties.
DISCUSSION
A person shall not be designated or nominated for public office who, if elected, will not meet the constitutional or statutory qualifications of that office. (Election Law § 6-122[3]). Under state law, this means that a nominated candidate for city office must be a resident of that city at the time of the general election (Public Officers Law § 3[1]). There is no requirement that the candidate be a resident at the time of nomination, nor any requirement that the candidate be a resident during the campaign leading up to the general election. Rather, to meet the state law qualifications, the candidate must only satisfy this residency requirement at the time of the general election. (Matter of Keith v King, 220 A.D.2d 471 [2d Dept. 1995]; Matter of Clark v McCoy, 196 A.D.2d 607 [2d Dept. 1993]).
The City of Poughkeepsie Charter imposes an additional qualification on Council Members, including the Council Member at Large. Specifically, Section 2.01 of the Charter states, in pertinent part: "At the time of his or her nomination and election, and throughout his or her term of office... the council member elected at-large shall be and remain a qualified elector of the city." Section 1.04(y) of the Charter defines a "qualified elector" as "a person qualified to cast a ballot in a city election."
Petitioners assert that the City was authorized to impose this additional qualification on the office of Council Member by Municipal Home Rule Law § 10[1][ii][a][1]. Respondents dispute this assertion, and argue that the City exceeded its statutory and constitutional authority when it imposed this additional restriction. Because this issue will not have any impact on the final outcome of this case, I decline to reach it.
It is undisputed that Liguori was duly nominated as the Republican candidate for Council Member at Large in the general election. It is also undisputed that Liguori was both a resident and an elector of the City of Poughkeepsie at the time of her nomination. There is also no question that the period of time to challenge that nomination has long since expired [Elections Law § 16-102[2]).
Petitioners argue that, while Liguori was capable of meeting the qualifications of this office at the time of her nomination, she no longer meets them because she has moved out of the area. Specifically, Petitioners argue that Liguori has moved to Monroe County, that she has registered to vote there, and that she has been purged from the voting rolls in Dutchess County. Therefore, Petitioners argue that Liguori is disqualified as a candidate for Council Member at Large because she will not be able to meet the qualifications of that office at the time of the general election.
Respondents do not dispute that Liguori moved out of the area at some point after the time to challenge her nominating petitions had expired. And given the disqualification documents and substitution documents that Respondents have filed with the DCBOE (Stipulated Exhibits 4-7), no plausible grounds can be articulated to dispute Liguori's disqualification at this point.
A vacancy in a nomination caused by a candidate's disqualification may be filled by the filing of a Certificate of Substitution and Consent (Election Law § 6-148). While Petitioners assert that the Certificate of Substitution and Consent were not timely filed in this case, they do not challenge the facial sufficiency of those documents.
Accordingly, the legal dispute surrounding Liguori's disqualification centers on the ten (10) day period provided by law for the filing of a Certificate of Substitution and Consent upon the disqualification of a nominated candidate. Specifically, under the time limits imposed by law, "a certificate to fill a vacancy in a nomination caused by death or disqualification shall be filed not later than ten days after such death or disqualification." (Election Law § 6-158[8]).
Petitioners argue that this ten-day period began to run on the day that Liguori moved to Monroe County (alleged, but not proven, to be June 13, 2021). In the alternative, Petitioners argue that this ten-day period began to run on the date that she electronically changed her voter registration to Monroe County through the Department of Motor Vehicles (alleged, but not proven, to be June 29, 2021). Or the date that the Monroe County Board of Elections added her to its voter rolls (July 3, 2021, as reflected in Stipulated Exhibit 2). Or the date that the DCBOE purged her from its voter rolls (July 8, 2021, as reflected in Stipulated Exhibit 3). Or the date that Liguori submitted an updated voter registration application through the DMV reflecting her new residence and mailing address in Monroe County (July 28, 2021, as reflected in Stipulated Exhibit 2). Ultimately, Petitioners argue that Liguori was disqualified no later than July 28, 2021, and that the corresponding ten-day deadline to file a Certificate of Substitution and Consent expired no later than August 7, 2021.
August 7, 2021 was a Saturday. If the ten-day statutory filing period ended on that date, it would automatically be extended to Monday, August 9, 2021 by operation of law.
By Cross-Petition, Respondents argue that the ten-day period provided by Election Law § 6-158[8] has not yet started to run, and that it will not start to run until the DCBOE issues a certificate of vacancy pursuant to Election Law § 4-106 (¶¶10-14). Alternatively, Respondents argue that the first day that this ten-day period could have started to run was August 20, 2021 - i.e., the date that Liguori sought to disqualify herself by filing documents with the DCBOE presenting a legal basis for her disqualification (¶15).
There is no merit to the Cross-Petition. Election Law § 4-106 deals exclusively with vacancies in office. It has no bearing on a vacancy in nomination.
Specifically, Election Law § 4-106(4) states that when a vacancy occurs in an elected City office, the City Clerk (or City Chamberlain, as that office is known in Poughkeepsie) shall file a certificate of vacancy with the County Board of Elections. And while the Second Department has ruled that a certificate of vacancy in office must be filed with the Board of Elections before a prospective candidate can begin circulating nominating petitions (Matter of Vitaliano v. D'Emic, 243 A.D.2d 662 [2d Dept. 1997]), the Second Department has never applied § 4-106(4) to a vacancy in a nomination. And for good reason, since the procedures for filling a vacancy in nomination are the exclusive domain of Article 6 of the Election Law.
Here, there is no vacancy in the office of Council Member at Large. Salem is the incumbent, the office is occupied. The status of Liguori's nomination is immaterial to the status of the occupied office. As such, the procedures for filling the vacancy in nomination created by Liguori's disqualification are laid out in Article 6 of the Election Law, and any reliance on the certificate of vacancy in office described in Election Law § 4-106(4) is misplaced. Accordingly, the Cross-Petition is denied.
Turning to the controlling statute, Election Law § 6-158(8) states that the Certificate of Substitution and Consent seeking to replace a disqualified candidate must be filed "not later than ten days after such... disqualification." While the statute does not identify the specific moment or act that will trigger this ten-day period, substantial guidance can be gleaned from the caselaw that has developed concerning the legal basis for candidate disqualifications.
It is now well-settled that "A nominated candidate who seeks to disqualify himself or herself must present a legal basis for doing so." (Matter of Justice v. Gamache, 45 A.D.3d 508, 510 [2d Dept. 2007]. See also Matter of Ward v. Mohr, 109 A.D.3d 694, 697 [4th Dept. 2013]; Matter of Biamonte v. Savinetti, 87 A.D.3d 950, 954 [2d Dept. 2011]; Matter of Kryzan v. New York State Board of Elections, 55 A.D.3d 1217, 1220 [3d Dept. 2008]). "One such basis may be that the candidate will not satisfy the residency requirement at the time of the general election." (Id.). Once that legal basis has been presented to the Board of Elections, the committee charged with filling that vacancy will have the opportunity to file a Certificate of Substitution, and aggrieved parties will have the opportunity to file objections and to pursue any available legal challenges.
By its very essence, the affirmative act of "presentation" is an indispensable part of the requirement that nominated candidates "present a legal basis" for such disqualification. Marking the date that nominated candidates file their legal basis for disqualification with the Board of Elections as both the date of presentation and as the trigger for the § 6-158(8) ten-day period provides clarity and stability for candidates, committees charged with filling vacancies, and aggrieved parties alike. And once the legal basis for disqualification has been filed, these same goals of providing clarity and stability in the election will be promoted by adherence to the tight time frames imposed by the Election Law for filing certificates, filing objections, and commencing legal proceedings.
By comparison, adopting the position advanced by Petitioners would invite chaos and create confusion, which would inevitably lead to lengthy, fact-intensive litigation and evidentiary hearings seeking to identify the earliest possible moment that a nominated candidate might have possessed a legal basis for disqualification. The Petition illustrates these pitfalls amply. It does not pretend to identify the single, precise date of Liguori's disqualification. Instead, it offers a potpouri of dates and events that might suffice to trigger the ten-day deadline. Perhaps it was the day Liguori is alleged to have moved. Perhaps it was the day she allegedly changed her voter registration through the DMV. Perhaps it was the day that the Monroe County BOE added her to its voter rolls. Perhaps it was the day that the DCBOE purged her from its rolls. Perhaps it was the day that the Monroe County BOE further updated its voter rolls.
The Court declines to adopt this amorphous, guessing-game approach, and instead finds that, once the period of time to challenge a candidate's nomination has expired (Elections Law § 16-102[2]), the date of disqualification for purposes of Election Law § 6-158(8) is the date that a nominated candidate files disqualification papers with the Board of Elections. This result adheres to the well-settled law that a nominated candidate seeking disqualification must present a legal basis to do so. It also provides all necessary and aggrieved parties with a clear benchmark for the triggering of the strict deadlines imposed by the Election Law, and reduces the risk that voters will be needlessly deprived of a meaningful choice at the general election by virtue of a missed deadline that was incapable of ready determination.
On August 20, 2021, Liguori caused two disqualification documents to be filed with the DCBOE: a letter dated August 9, 2021, and a certificate of disqualification dated August 14, 2021. These documents, taken together, present her legal basis for seeking disqualification. I find that the filing of these documents triggered the ten-day substitution deadline contained in Election Law § 6-158(8), and that the last day to file a Certificate of Substitution and Consent was August 30, 2021.
Petitioners have argued that there is no such thing as a certificate of disqualification under the Election Law, and that it was "photo-shopped" in an attempt to create a later disqualification date. (¶30). As a preliminary matter, while Election Law §§ 6-148 and 6-158 do not mandate, or even mention, the use of a certificate of disqualification, Election Law § 1-106(1) expressly recognizes the existence of certificates of disqualification. And the Second Department has also recognized that a certificate of disqualification may serve as a mechanism for a nominated candidate to present a legal basis for disqualification (Matter of Justice v. Gamache, 45 A.D.3d 508 [2d Dept. 2007]). This is not to suggest that a certificate of disqualification is the only available filing mechanism. A detailed letter to the Board of Elections has also been deemed a satisfactory predicate for disqualification. (Matter of Kryzan v. New York State Board of Elections, 55 A.D.3d 1217 [3d Dept. 2008]).
The Certificate of Substitution and Consent were filed with the DCBOE on August 20, 2021. These documents were filed within the relevant ten-day period, and prior to the August 30 deadline. And there is no legal prohibition to filing a Certificate of Substitution and Consent simultaneously with disqualification documents (see Matter of O'Donohue v. Withers, 153 A.D.2d 722 [2d Dept. 1989] [certificate of declination filed simultaneously with certificate of substitution]). Accordingly, since the Certificate of Substitution and Consent were timely filed, and there has been no challenge to the facial sufficiency of those documents, the Verified Petition is denied to the extent that it seeks a declaration that the Certificate of Substitution and Consent are null and void and invalid pursuant to Election Law § 6-158.
However, despite my finding that the Certificate of Substitution and Consent were timely filed, they are nonetheless null and void because no Certificate of Authorization was filed with the DCBOE by September 3, 2021.
Pursuant to Election Law § 6-120(3), the members of a party committee may "authorize the designation or nomination of a person as a candidate for any office who is not enrolled as a member of such party." When that designation or nomination is made, the Presiding Officer and Secretary must sign and acknowledge a Certificate of Authorization.
Election Law § 6-120(3) clearly and unequivocally mandates the filing of the Certificate of Authorization no later than four days after the last date to file the Certificate of Substitution. Here, the last day to file a Certificate of Substitution was August 30, 2021. Accordingly, the last possible day to file a Certificate of Authorization was September 3, 2021.
It is undisputed that Petsas is not a member of the Republican Party. And the stipulated facts in evidence conclusively establish that no Certificate of Authorization was filed with the DCBOE by September 3, 2021, or at any other time up to and including the September 8, 2021 hearing. When a political party nominates or designates a candidate who does not belong to that party, filing of a Certificate of Substitution without filing a timely Certificate of Authorization is a fatal defect. (Matter of Terranova v. Fudoli, 66 A.D.3d 1530 [4th Dept. 2009]). Respondents seek to evade the grasp of Election Law § 6-120(3) by arguing that "The deadlines set by the Election Law for filing nominations have recently been declared unconstitutional by both the State Supreme Court and the Federal District Court for the Western District of New York" (¶38). As a result, Respondents assert that "In essence, the filing of nomination documents no longer has a deadline under this decisional law." (¶39).
This is a gross misstatement of these recent trial court decisions, both of which addressed an independent nominating petition that the incumbent Mayor of Buffalo filed after he lost a Democratic primary (Brown v. Erie County Board of Elections, New York Supreme Court, Erie County, Index No. 811973/2021 and Meadors v. Erie County Board of Elections, United States District Court, Western District of New York, Docket No. 21-CV-00982-JLS). Both decisions dealt exclusively with the constitutionality of the time period for filing an independent nominating petition under Election Law § 6-158(9).
The proceeding pending before this Court has nothing to do with independent nominating petitions, or the filing deadline for independent nominating petitions established by Election Law § 6-158(9). Likewise, neither of the Erie County trial court decisions has anything to do with Certificates of Authorization, or with the deadline to file a Certificate of Authorization imposed by Election Law § 6-120(3). Most assuredly, neither of the Erie County trial court decisions made any sort of bold pronouncement eliminating all nomination deadlines under the Election Law or finding that every nomination filing deadline in the Election Law is unconstitutional. Rather, the Erie County trial court decisions are limited to the filing deadline for independent nominating petitions, an entirely different deadline for an entirely different type of nomination.
Finally, the Court notes that the Erie County trial court decisions were based upon a finding that the filing deadline contained in Election Law § 6-158(9) placed a severe burden on independent nominating petitions, which had the effect of excluding or virtually excluding independent candidates from the political arena.
Respondents cannot make the same argument. The Certificate of Authorization could have been filed at any time between August 20 and September 3, 2021. There was no burden, other than the burden of filing a routine document within that two-week notice. This ministerial burden is a far cry from the type of constitutionally impermissible burdens that have been struck down under other circumstances pursuant to Anderson v. Celebrese, 460 U.S. 780 (1983).
Indeed, Respondents were alerted to this potentially fatal defect no later than August 26, 2021, when Petitioners filed their Specific Objections to the Certificate of Substitution and Consent, and expressly raised this issue. On August 30, 2021, Respondents were again reminded of this potentially fatal defect when the Petition was served on the DCBOE. Inexplicably, despite receiving at least two advance warnings, Respondents failed to cure this defect by simply filing a Certificate of Authorization before the September 3, 2021 deadline. There is simply no basis to assert that the Election Law § 6-120(3) deadline poses an unconstitutional burden under these circumstances. It is therefore
ORDERED, ADJUDGED AND DECREED, that the application by Respondents Haight, McCormack and Petsas for leave to file the Cross-Petition dated September 7, 2021 is granted; and it is further
ORDERED, ADJUDGED AND DECREED, that the Cross-Petition is denied; and it is further
ORDERED, ADJUDGED AND DECREED, that the Affirmative Defenses and Objections asserted in Respondent Haight's Answer are dismissed, and that the Motions to Dismiss asserted in Respondent Haight's Answer are denied; and it is further
ORDERED, ADJUDGED AND DECREED, that the date of Jenna Liguori's disqualification for purposes of Election Law § 6-158(8) is August 20, 2021 (i.e., the date that she filed documents with the DCBOE presenting a legal basis for her disqualification); and it is further
ORDERED, ADJUDGED AND DECREED, that there having been no objection to the legal basis for her disqualification, the Verified Petition is granted to the extent that it seeks a declaration that there is a vacancy in the position of Republican candidate for Council Member at Large by reason of the disqualification of Jenna Liguori; and it is further
ORDERED, ADJUDGED AND DECREED, that the Dutchess County Board of Elections is enjoined from placing the name of Jenna Liguori on the ballot for the November general election as the Republican candidate for City of Poughkeepsie Council Member at Large, by reason of her disqualification; and it is further
ORDERED, ADJUDGED AND DECREED, that the ten (10) day period to file a Certificate of Substitution and Consent provided by Election Law § 6-158(8) started to run on August 20, 2021, and the last day for such filing was August 30, 2021; and it is further
ORDERED, ADJUDGED AND DECREED, that the Certificate of Substitution and Consent were timely filed with the DCBOE on August 20, 2021, in compliance with Election Law § 6-158(8); and it is further
ORDERED, ADJUDGED AND DECREED, that the Verified Petition is denied to the extent that it seeks a declaration that the Certificate of Substitution and Consent are null and void and invalid pursuant to Election Law § 6-158; and it is further
ORDERED, ADJUDGED AND DECREED, that pursuant to Election Law § 6-120(3), the deadline to file a Certificate of Authorization with the Dutchess County Board of Elections was September 3, 2021 (i.e., four days after the last day to file the Certificate of Substitution and Consent); and it is further
ORDERED, ADJUDGED AND DECREED, that no Certificate of Authorization was filed with the DCBOE by September 3, 2021; and it is further
ORDERED, ADJUDGED AND DECREED, that the Petition is granted to the extent that it seeks a declaration that the Certificate of Substitution seeking to nominate and designate Christopher Petsas as the Republican candidate for the City of Poughkeepsie Council Member At Large, and the Consent by Substituted Candidate signed by Christopher Petsas, are null and void and invalid, because the Presiding Officer and Secretary of the Republican Committee failed to file a Certificate of Authorization with the Dutchess County Board of Elections by September 3, 2021, as required by Election Law § 6-120(3); and it is further
ORDERED, ADJUDGED AND DECREED, that the Dutchess County Board of Elections is enjoined from placing the name of Christopher Petsas on the ballot for the November general election as the Republican candidate for City of Poughkeepsie Council Member At-Large.
The foregoing constitutes the Decision, Order and Judgment of this Court.