Opinion
No. 03709.
07-31-2015
In the Matter of the Application of Louise K. SIRA, Petitioner–Candidate Aggrieved, v. Michael W. SMRTIC, as a Candidate for the Public Office of Fulton County Court and Surrogate Judge, Respondent–Candidate, and Fulton County Board of Elections, and Lynne M. Rubscha and Lee Hollenbeck as Commissioners thereof, Respondents, For Judgment Pursuant to Election Law. In the Matter of the Application of Melissa Vincent, Petitioner–Objector, v. Louise K. Sira, Respondent–Candidate, and Lee Hollenbeck and Lynne Rubscha, Commissioners Constituting the Fulton County Board of Elections, Respondents, For an Order Pursuant to Sections 16–100, 16–102 and 16–116 of the Election Law, Declaring Invalid the Designating Petitions Purporting to designate the Republican and Conservative Party Candidate for the Public Office of Fulton County Court and Surrogate, Fulton County, New York, in the Republican Party Primary Election to be held September 10, 2015, and to Restrain the said Board of Elections from Printing Louise K. Sira as a Candidate for the Republican and Conservative Parties Upon the Official Ballots of Such Primary Election and/or General Election.
James E. Long, Esq., Albany, for Louise K. Sira, petitioner-candidate aggrieved in proceeding No. 1 and respondent-candidate in proceeding No. 2. James E. Walsh, Esq., Law Offices of James E. Walsh, Ballston Spa, for Michael W. Smrtic, respondent-candidate in proceeding No. 1, and Melissa Vincent, petitioner-objector in proceeding No. 2. Jason Brott, Esq., Johnstown, for the Fulton County Board of Elections, respondent in proceeding Nos. 1 and 2.
James E. Long, Esq., Albany, for Louise K. Sira, petitioner-candidate aggrieved in proceeding No. 1 and respondent-candidate in proceeding No. 2.
James E. Walsh, Esq., Law Offices of James E. Walsh, Ballston Spa, for Michael W. Smrtic, respondent-candidate in proceeding No. 1, and Melissa Vincent, petitioner-objector in proceeding No. 2.
Jason Brott, Esq., Johnstown, for the Fulton County Board of Elections, respondent in proceeding Nos. 1 and 2.
ROBERT J. MULLER, J.
Louise K. Sira and Michael W. Smrtic are running for the public office of Fulton County Court and Surrogate Judge. Sira filed designating petitions with the Fulton County Board of Elections seeking the Republican and Conservative Party nominations in the September 10, 2015 primary election. Smrtic filed a designating petition seeking the Conservative Party nomination. Presently before the Court are two proceedings pursuant to Election Law § 16–102. In proceeding No. 1, Sira seeks to invalidate Smrtic's designating petition. In proceeding No. 2, Melissa Vincent—a citizen objector—seeks to invalidate both of Sira's designating petitions. Smrtic has filed an answer in proceeding No. 1, while Sira has filed both an answer and motion to dismiss in proceeding No. 2.
Smrtic also filed a designating petition seeking the Republican Party nomination, but this petition has not been challenged.
The parties appeared on July 30, 2015, at which time oral argument was heard on the motion and the Court reserved. A hearing then ensued and the issues raised in proceeding No. 1 were resolved. Smrtic admitted that his designating petition seeking the Conservative Party nomination is invalid, as neither he nor any of the other notaries public or commissioners of deeds who witnessed the 51 signatures obtained from the signatories an affirmation or acknowledgment as to the truthfulness of their statements (see Election Law § 6–132[3] ; Matter of LeBron v. Clyne, 65 A.D.3d 801, 802 [2009] ; Matter of Liebler v. Friedman, 54 A.D.3d 697, 697–698 [2008] ; Matter of Imre v. Johnson, 54 A.D.3d 427, 428 [2008] ). The relief requested in proceeding No. 1 is therefore granted and the Board of Elections prohibited from placing Smrtic's name on the ballot as a Conservative Party candidate for Fulton County Court and Surrogate Judge.
The parties also resolved the issues raised in proceeding No. 2 relative to Sira's designating petition seeking the Conservative Party nomination. Sira admitted that the designating petition is invalid, as she witnessed 41 of the 62 signatures as a notary public and failed to obtain from the signatories an affirmation or acknowledgment as to the truthfulness of their statements (see Election Law § 6–132[3] ; Matter of LeBron v. Clyne, 65 A.D.3d at 802, 883 N.Y.S.2d 833 ; Matter of Liebler v. Friedman, 54 A.D.3d at 697–698, 863 N.Y.S.2d 719 ; Matter of Imre v. Johnson, 54 A.D.3d at 428, 863 N.Y.S.2d 473 ). To that end, the petition now has less than the required number of valid signatures—namely, 27 (see Election Law § 6–136[2] ). The relief requested in proceeding No. 2 is therefore granted to the extent that the Board of Elections is prohibited from placing Sira's name on the ballot as a Conservative Party candidate for Fulton County Court and Surrogate Judge.
Sira also admitted that 308 signatures on her designating petition seeking the Republican Party nomination are invalid as a result of her failure to obtain an affirmation or acknowledgment of truthfulness from the signatories. With that said, however, this designating petition has a total of 2,437 signatures and only 500 are required (see Election Law § 6–136[2] ). It is therefore undisputed that a sufficient number of signatures remain so as to prevent invalidation on these grounds alone.
All that remains before the Court for disposition is that aspect of proceeding No. 2 which seeks the invalidation of Sira's designating petition for the Republican Party nomination. According to Vincent, this designating petition must be invalidated based upon fraud. The Court will address Sira's motion to dismiss before proceeding to a consideration of the merits.
With that said, Sira first contends that the proceeding must be dismissed because Vincent failed to exhaust her administrative remedies under 9 NYCRR 6204.1(a). The Court, however, is not persuaded. 9 NYCRR 6204.1(a) provides as follows:
"All ... specifications [of objections] shall substantially comply with the following requirements:
"(1) the volume number, page number, and line number of any signature objected to on any petition shall be set forth in detail. In addition, any portion of any petition or any signature line or witness statement objected to shall be specifically identified and reasons given for any such objection;
"(2) the total number of signatures objected to shall be set forth and all objections relating to a single signature line should be grouped together; and
"(3) symbols and/or abbreviations may be used to set forth objections, provided that a sheet explaining the meaning of any such symbols and/or abbreviations is attached to the specifications."
Here, the specifications of objections attached to the designating petition is erroneously labeled "SPECIFICATIONS OF OBJECTIONS TO INDEPENDENCE PARTY DESIGNATING PETITION FOR THE OFFICE OF FULTON COUNTY and SURROGATE COURT JUDGE, DUTCHESS COUNTY, STATE OF NEW YOUR [sic] SUMMARY OF ENCLOSURES." According to Sira, because the Republican Party is not listed, she was not given adequate notice of the objections to her designating petition. Sira further notes that only 36 of the 167 pages of the designating petition are listed in the specifications of objections.
Notwithstanding the careless errors made, the Court nonetheless finds that the specifications of objections "substantially comply" with 9 NYCRR 6204.1(a). While the specifications erroneously reference the "Independence Party" and the public office of "Surrogate Court Judge, Dutchess County," the cover page immediately preceding them clearly references the "Republican Party" and the public office of "Fulton County Court Judge and Surrogate." Further, Appendix A to the specifications of objections provides a line-by-line listing of Vincent's objections to all 167 pages of the designating petition. Under these circumstances, the Court declines to dismiss the proceeding for failure to exhaust administrative remedies (see Matter of Radda v. Acito, 54 A.D.2d 531 [1976] ).
Sira next contends that the proceeding must be dismissed because Vincent failed to plead her claim of fraud with specificity. In this regard, CPLR 3016(b) provides that "[w]here a cause of action ... is based upon ... fraud, ... the circumstances constituting the wrong shall be stated in detail." Insofar as special proceedings under the Election Law are concerned, " CPLR 3016(b) does not require the pleadings to provide unassailable proof of fraud, [but they] must ... allege sufficient facts to allow the judge to infer a candidate's participation [in] or knowledge of fraudulent conduct" (Thomas v. Eugene, 41 Misc.3d 418, 422, 973 N.Y.S.2d 529 [Sup Ct, Kings County 2013] ; see Pludeman v. Northern Leasing Sys., Inc. ., 10 N.Y.3d 486, 491 [2008] ; Polonetsky v. Better Homes Depot, 97 N.Y.2d 46, 55 [2001] ; Matter of Robinson v. Edwards, 54 A.D.3d at 683, 865 N.Y.S.2d 223 ).
Here, Vincent sets forth four separate fraud allegations. First, Vincent alleges that Sira committed fraud with respect to the designating petition "when she affirmatively stated that she swore each signer she witness[ed] when in fact she had not." In essence, Vincent is alleging that Sira failed to comply with Election Law § 6–132(3) —which Sira admitted. With that said, the Court declines to find that this failure—which has been deemed a "technical irregularity" (Matter of Caruso v. Casciola, 27 N.Y.2d 657 [1970] ; see Matter of Hall v. Dussault, 109 A.D.3d 679, 680 [2013, 970 N.Y.S.2d 840 )—constitutes fraudulent conduct (see Matter of Nolin v. McNally, 87 A.D.3d 804, 805 [2011] ).
Election Law § 6–132(3) provides as follows:
"In lieu of the signed statement of a witness who is a duly qualified voter of the state qualified to sign the petition, the following statement signed by a notary public or commissioner of deeds shall be accepted:
"On the dates above indicated before me personally came each of the voters whose signatures appear on this petition sheet containing ............. (fill in number) signatures, who signed same in my presence and who, being by me duly sworn, each for himself or herself, said that the foregoing statement made and subscribed by him or her, was true.
Vincent next alleges that Sira committed fraud with respect to the designating petition by obtaining signatures from individuals who were not enrolled voters in the Republican Party. Significantly, however, Vincent has offered no facts in support of this allegation. Moreover, Vincent has failed to allege that Sira obtained any such signatures knowingly. The Court declines to find that this conclusory allegation that Sira unknowingly obtained signatures from individuals who were not enrolled voters in the Republican Party is sufficient to infer her participation in or knowledge of fraudulent conduct.
Third, Vincent claims that Sira committed fraud because she added the words "and Surrogate" to certain pages of the petition after signatures were collected thereon. Sira in fact admits that she added "and Surrogate" to these pages of the petition after they were signed, but contends that the "correction [was] not a material alteration sufficient to be construed as fraud." The Court concurs. Unlike other, more populous counties in the State of New York—wherein the public offices of County Court Judge and Surrogate Judge are separate and distinct—County Court and Surrogate Judge is and always has been one public office in Fulton County. The Court therefore finds that adding the words "and Surrogate" to "Fulton County Court Judge" did not constitute a material alteration. Further—and more significantly—there are no factual allegations to suggest that Sira was attempting to perpetrate a fraud when she added the words "and Surrogate" to these pages of the designating petition. While the Court does not condone Sira's addition of words to these pages that were already signed, it is clear that she was merely trying to correct a mistake. Therefore, the facts alleged do not allow the Court to infer her participation in or knowledge of fraudulent conduct (see Matter of Staber v. Fidler, 65 N.Y.2d 529, 534 [1985] ; Matter of Kraham v. Rabbitt, 11 A.D.3d 808, 809 [2004] ; Matter of Pulver v. Allen, 242 A.D.2d 398 [1997], lv denied 90 N.Y.2d 805 [1997] ).
Finally, Vincent alleges that members of the Fulton County District Attorney's office improperly collected signatures on the petition. In support of this allegation, Vincent has submitted the 2012 "Ethical Guidelines for Prosecutors" (hereinafter Ethical Guidelines), published by the District Attorneys Association of the State of New York. These Ethical Guidelines provide, in pertinent part:
"Prosecutors generally may not speak at political functions, publicize their attendance at such functions, or act in a manner that could be interpreted as lending the prestige and weight of their office to a political party or function. Of course, a prosecutor who is running for election or re-election is permitted to campaign on his or her own behalf. District Attorneys and their assistants may not endorse political candidates, except that in some counties assistants may be permitted to engage in political activity in support of the re-election of the District Attorney by whom they are employed."
According to Sira, notwithstanding the Ethical Guidelines, there is nothing fraudulent about Assistant District Attorneys in Fulton County collecting signatures on her designating petition. Indeed, inasmuch as Vincent has made no allegations that the Assistant District Attorneys used their position to influence potential signatories of the designating petition in any way, the Court finds that the facts alleged do not constitute fraudulent conduct.
Based upon the foregoing, the Court concludes that Vincent failed to allege sufficient facts to allow the Court to infer Sira's participation in or knowledge of fraudulent conduct. Significantly, this conclusion is reached irrespective of whether the Court considers each allegation of fraud separately or the "totality" of the alleged fraud, as urged by counsel for Vincent. Sira's motion to dismiss the remaining aspect of proceeding No. 2 seeking to invalidate her designating petition for the Republican Party nomination is therefore granted.
Briefly, even if this Court were to overlook the deficiencies in the pleadings and consider the proof presented at the hearing, the same conclusion would be reached. "[T]he burden is upon the party challenging the designating petition to demonstrate the existence of fraud by clear and convincing evidence" (Matter of Nolin v. McNally, 87 A.D.3d at 805, 928 N.Y.S.2d 615 ; see Matter of Harris v. Duran, 76 A.D.3d 658, 659 [2010] ; Matter of Robinson v. Edwards, 54 A.D.3d 682, 683 [2008] ; Matter of Kraham v. Rabbitt, 11 A.D.3d at 809, 783 N.Y.S.2d 141 ) and here, Vincent failed to offer any clear and convincing proof to demonstrate the existence of fraud (compare Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 1057–1058 [2011] ; Matter of Tapper v. Sampel, 54 A.D.3d 435, 436 [2008], lv denied 11 NY3d 701 [2008] ).
Therefore, having considered with respect to proceeding No. 1 the Petition of Louise K. Sira with exhibits attached thereto, verified July 20, 2015; and the Answer of Michael W. Smrtic with exhibit attached thereto, verified July 26, 2015; and having considered with respect to proceeding No. 2 the Petition of Melissa Vincent with exhibits attached thereto, verified July 21, 2015; the Answer/Objections in Point of Law of Louise K. Sira, verified July 26, 2015; the Affidavit of James E. Long, Esq., sworn to July 27, 2015, submitted in support of the motion to dismiss; and the Affirmation of James E. Walsh, Esq., sworn to July 30, 2015, submitted in opposition to the motion to dismiss; and the parties having appeared before the Court on July 30, 2015 with respect to proceeding Nos. 1 and 2; it is hereby
ORDERED AND ADJUDGED that the relief requested in proceeding No. 1 is granted in its entirety and the designating petition of Michael W. Smrtic seeking the Conservative Party nomination for the public office of Fulton County Court and Surrogate Judge deemed invalid; and it is further
ORDERED AND ADJUDGED that the Fulton County Board of Elections is prohibited from placing Michael W. Smrtic's name on the ballot as a Conservative Party candidate for Fulton County Court and Surrogate Judge; and it is further
ORDERED AND ADJUDGED that proceeding No. 2 is granted to the extent that the designating petition of Louise K. Sira seeking the Conservative Party nomination for the public office of Fulton County Court and Surrogate Judge is deemed invalid; and it is further
ORDERED AND ADJUDGED that the Fulton County Board of Elections is prohibited from placing Louise K. Sira's name on the ballot as a Conservative Party candidate for Fulton County Court and Surrogate Judge; and it is further
ORDERED AND ADJUDGED that Louise K. Sira's motion to dismiss the remaining relief requested in proceeding No. 2–namely the invalidation of her designating petition seeking the Republican Party nomination-is granted; and it is further
ORDERED AND ADJUDGED that the Fulton County Board of Elections shall place Louise K. Sira's name on the ballot as a Republican Party candidate for Fulton County Court and Surrogate Judge.
The original of this Decision and Order is returned to counsel for Louise K. Sira for filing and service with notice of entry, with service to be effectuated on or before 5:00 P.M. on August 5, 2015. The Orders to Show Cause in proceedings No. 1 and 2, respectively, and the Notice of Motion in proceeding No. 2, have been filed by the Court together with the above-referenced submissions.