Opinion
Index No. E2023004481
05-04-2023
In the Matter of the Application of DAWN VOGLEWEDE and TRACY DIFLORIO, Petitioners-Objectors, v. MARVIN L. STEPHERSON, Respondent-Candidate, and MONROE COUNTY BOARD OF ELECTIONS, by JACKIE ORTIZ and LISA NICOLAY CONSTITUTING COMMISSIONERS, Respondents. For an Order Pursuant to Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, And CPLR Section 3001, Declaring Invalid the Democratic Party Designating Petitions Purporting to Nominate Marvin L. Stepherson as Candidate for the Public Office of County Legislator, 3rd Legislative District, County of Monroe, in the Primary Election to be held June 27, 2023, and to Restrain the Monroe County Board of Elections from Printing and Placing the Name Marvin L. Stepherson Upon the Official Ballots of Such Primary and/or General Election.
Jared P. Hirt, Esq., Evans Fox LLP for Petitioners-Objectors Bridget A. O'Toole, Esq., HEATH & O'TOOLE, PLLC, for Respondent-Candidate John P. Bringewatt, Esq., Monroe County Attorney, Robert P. Shoemaker, Esq., of counsel, attorneys for Respondents
Unpublished Opinion
Jared P. Hirt, Esq., Evans Fox LLP for Petitioners-Objectors
Bridget A. O'Toole, Esq., HEATH & O'TOOLE, PLLC, for Respondent-Candidate John P. Bringewatt, Esq., Monroe County Attorney, Robert P. Shoemaker, Esq., of counsel, attorneys for Respondents
DECISION, ORDER AND JUDGMENT
Daniel J. Doyle, J.
In this proceeding pursuant to New York Election Law article 16 Petitioners-Objectors Dawn Voglewede and Tracy DiFlorio (hereinafter "petitioners") seek to invalidate signatures on designating petitions to designate Respondent-Candidate Marvin L. Stepherson (hereinafter "Stepherson") as the nominee for the Democratic Party in the primary and general election for the position of county legislator in the 3rd legislative district in the County of Monroe, and a declaration that the candidate failed to file a Petition with the requisite number of signatures to place him on the ballot for the primary and general elections.
Petitioners initiated the action on May i, 2023. The Court, recognizing that "[e]lection Law proceedings are subject to severe time constraints, and they require immediate action (see Matter of Tenneriello v. Board of Elections in City of N.Y., 104 A.D.2d 467, 468, 479 N.Y.S.2d 72)" (Master v. Pohanka, 44 A.3d 1050,1052 [2nd Dept. 2007J) ordered the parties to appear for a hearing on May 3, 2023. On that date a fact-finding hearing was conducted. The Court directed the parties to submit any post-hearing submissions by May 4th at 10:00 a.m.
Pursuant to Election Law § 4-114, the Monroe County Board of Elections must certify the ballot for the primary election on May 4, 2023. "The county board of elections, not later
For the reasons that follow, the Court determines that the Petitioners have failed to establish that Stepherson's Designating Petition contains an insufficient number of signatures of enrolled voters of the Democratic Party. The Petition is therefore dismissed.
Findings of Fact
On April 10, 2023, Marvin L. Stepherson filed a Designating Petition, consisting of 26 pages containing 332 signatures of persons enrolled in the Democratic Party and who lived in the 3rd Legislative District in Monroe County, as the Democratic Party candidate for the position of Monroe County Legislature in than the fifty-fourth day before the day of a primary or general election, the fifty-third day before a special election, or twenty-four days before a special election held pursuant to paragraph b of subdivision three of section forty-two of the public officers law, shall determine the candidates duly nominated for public office and the questions that shall appear on the ballot within the jurisdiction of that board of elections." (Elec. Law § 4-114.) Additionally, the deadline for Monroe County Board of Elections to transmit ballots to eligible military voters is May 12th. (See Elec. Law § 10-108[1][a]: "[b]alJots for military voters shall be mailed or otherwise distributed by the board of elections, in accordance with the preferred method of transmission designated by the voter pursuant to section 10-107 of this article, as soon as practicable but in any event not later than forty-six days before a primary or general election. . . ") Additionally, Elec. Law § 16-102(4] states: "A final order including the resolution of any appeals in any proceeding involving the names of candidates on ballots or voting machines shall be made, if possible, at least five weeks before the day of the election at which such ballots or voting machines are to be used, or if such proceeding is commenced within five weeks of such election, no later than the day following the day on which the case is heard." the 3rd Legislative District. To be placed on the ballot, Stepherson's Designating Petition must contain at least 320 valid signatures.
See Elec. Law § 6-136(2): "All other petitions must be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit in which the office or position is to be voted for (excluding voters in inactive status). . . ".
The Designating Petition contains twenty-six (26) pages and three hundred and thirty-two (332) signatures. Stepherson was the subscribing witness on pages 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 24, and 26. There are two hundred and eighty-one (281) signatures on those pages. Five other people "collected" the remaining fifty-one (51) signatures.
On April 17, 2023 (having filed a general objection on April 10, 2023, to the Designating Petition), Petitioner Vogelwede filed specific objections to twenty-three signatures contained in the Designating Petition. The objections filed were to the following signatures:
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Respondents Monroe County Board of Elections Commissioners (hereinafter "BOE") conducted a hearing on April 28, 2023, to determine the validity of the Designating Petition and the specific objections made by Petitioners. They ruled as follows:
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Petitioners make four general claims: (i) one of the subscribing witnesses (Nicholas Coffee) incorrectly listed his address as "Rochester" when he was required to state "Gates" and this invalidates the six signatures on that page (was denied by BOE due to split decision); (2) identified signatures do not match the signature on file with the BOE, and one person signed for two people (was denied by the BOE as "not subject to administrative review"); (3) several signatures are invalid as duplicate signatures or listed an incorrect or incomplete address (some of which were sustained by BOE); and (4) the Designating Petition is "permeated with fraud" requiring invalidation.
At the fact-finding hearing, in addition to stipulating to the admission of the Designating Petition, the general objection, the specific objections, Stepherson's letter to the BOE dated April 26, 2023, the notification of the BOE hearing sent to the parties, and the BOE hearing decision on the specific objections, the parties stipulated to the following facts:
Exhibit 1.
Exhibit 2.
Exhibit 3.
Exhibit 4.
Exhibits 6 and 7.
1. Nicholas Coffee, the subscribing witness to page 23 of the Designating Petition, resides at 19 Twin Circle Drive in the Town of Gates.
2. That Stepherson's Designating Petition must contain at least 320 valid signatures of voters enrolled in the Democratic Party within the 3rd Legislative District to be valid.
3. That Stepherson's Designating Petition contains 332 signatures.
4. The contents of Stepherson's April 26, 2023 letter to the BOE concerning Roy Taylor signing for Mary H. Taylor are deemed admitted.
5. That all specific objections sustained by the BOE are deemed to be invalid signatures (page 12, line 4; page 16, line 9; page 19, line 10; page 21, line 5; page 26, lines 11,12, and 13).
6. That the following contested signatures are valid: page 13, line 3 and pages 13, line 4.
7. That the following contested signatures are not valid: page 7, line 6 and page 8, line 2.
Exhibit 8, the "walk sheets" Election District 28 were admitted showing Mary Taylor was not at home when the petition page was signed by Roy Taylor.
The Court reviewed the remaining challenged signatures in the Designating Petition and compared those signatures to the registration records for the listed signor.
Exhibits 1; 9, 10, 11, 12, 13, 14, 15, and 17.
At the hearing, Stepherson testified as to what occurred as he was collecting signatures. The Court determined Stepherson to be credible, and his relevant testimony is as follows.
Mr. Stepherson was formerly a sergeant with the Rochester Police Department, having retired after twenty-five years of service. He had previously been a candidate for Monroe County Legislature and had "collected" signatures as part of that process. When Stepherson was challenged about a signor who had signed for another person (Roy Taylor signing for Mary Taylor), he testified that "I didn't see that Roy put Maiy Taylor on there" and when he attested to observing all signatories, it was truthful as he did not discover Roy had placed Mary's name on the petition.
He specifically denied observing one signor sign more than one name.
Conclusions of Law
Nicholas Coffee's Error Does Not Mandate Invalidating Page 23 of the Designating Petition
One of the subscribing witnesses, Nicholas Coffee, listed his address as "19 Twin Circle Drive Rochester" and the "Town or City Where Witness Resides" as "Rochester" in the "Statement of Witness" provision at the bottom of page 23 of the Designating Petition. The Town where Mr. Coffee resides is the Town of Gates, New York. Petitioner argues that this defect requires invalidating the six (6) signatures that appear on that page.
Mr. Coffee correctly completed the Statement of Witness provision by listing his town of residence as "Gates" on page 21 of the Designating Petition.
There is no question that Mr. Coffee resides at 19 Twin Circle Drive and that his residence is in the Town of Gates. "The requirements that a subscribing witness disclose his or her current address and reside in the state protects the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition (see Election Law § 6-132 [2]; Matter of La Brake v. Dukes, 96 N.Y.2d 913, 914-915, 733 N.Y.S.2d 133, 758 N.E.2d 1110, citing Lerman v. Board of Elections, 232 F.3d 135, 150; Molinari v. Powers, 82 F.Supp.2d 57, 73)." (Pisani v. Kane, 87 A.D.3d 650, 651-52 [2nd Dept. 2011].) As Mr. Coffee provided an address where he could be found and be subject to service of process, and the parties stipulated that Mr. Coffee did live at this address, this was sufficient to satisfy the requirements of the Election Law.
"Where, as here, the Election Law violation does not involve the "substantive requirements of witness eligibility" and "there is no implication of fraud, resort to strict construction should be avoided if it would lead to injustice in the electoral process or the public perception of it" (Matter of Pulver v. Allen, 242 A.D.2d 398, 400, 661 N.Y.S.2d 836, Iv. denied 90 N.Y.2d 805, 662 N.Y.S.2d 431, 685 N.E.2d 212, citing Matter of Staber v. Fidler, 65 N.Y.2d 529, 534, 493 N.Y.S.2d 288, 482 N.E.2d 1204)." (McManus v. Relin, 286 A.D.2d 855, 855 [4th Dept. 2001].)
Thus, Petitioners failed to establish, by clear and convincing evidence, that the signatures on Page 23 of the Designating Petition are invalid. (Dalton v. Wayne County Board of Elections, 65 A.D.3d 817 [4th Dept. 2009]; McManus v. Relin, supra; Goldstein v. Ross, 196 A.D.2d 615 [2nd Dept. 1993].)
The Designating Petition Contains 321 Valid Signatures
The Court reviewed the challenged signatures on the Designating Petition that were not resolved by stipulation of the parties. In doing so, the Court examined the signature on the Designating Petition and compared it to the signature on the registration records to determine if the signature that appears on the Designating Petition is invalid. (See LaMarca v. Quirk, no A.D.3d 808, 810 [2nd Dept. 2013]: "Voters' signatures on designating or independent nominating petitions that do not meaningfully compare with the signatures on the same voters' registration forms should be invalidated (see Matter of Quercia v. Bernstein, 87 A.0.3d 652, 653, 928 N.Y.S.2d 346; Matter of Rabadi v. Galan, 307 A.D.2d 1014, 763 N.Y.S.2d 503).)
"It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatoiy's registration form" (Matter of Toles v. Quintana, 183 A.D.3d 1290, 1292, 123 N.Y.S.3d 786 [4th Dept. 2020], Iv denied 35 N.Y.3d 905, 2020 WL 2529764 [2020] [internal quotation marks omitted]; see Matter of Lord v. New York State Bd. of Elections, 98 A.D.3d 622, 623, 949 N.Y.S.3d 507 [2d Dept. 2012]; Matter of Henry v. Trotto, 54 A.0.3d 424, 426, 862 N.Y.S.3d 605 [2d Dept. 2008])." (Maclay v. Dipasquale, 197 A.D.3d 1502, 1053 [4th Dept. 2021].)
After this review, the Court concluded that the signatures on page 9, line 9 and on page 9, line 4 (challenged by Petitioners) were not valid. Stepherson did not submit any evidence establishing the validity of these signatures, so they must be stricken.
Although this signature was not challenged by a specific objection, Stepherson had sufficient notice that it was in issue as Petitioners' specific objections noted an objection to page 9, line 3 arguing the "same person signed twice". Line 3 was signed by "Sam McCutchen" and line 4 was purportedly signed by "Yvonne McCutchen". Both were listed as living at the same address. This provided sufficient notice to Stepherson that the signature on line 4 was subject to challenge. "Those specific objections identified the specific challenged signatures set forth on the independent nominating petition." (LaMarca v. Quirk, no A.D.3d 808, 810 [2nd Dept. 2013].)
The remaining signatures were determined to be valid?
Page 8, line 1; Page 8, line 3; Page 9, line 3; page 9, line 10.
After this review, and upon consideration of the stipulations, the Court determines that eleven (n) signatures are not valid? In examining all the invalidated signatures, the Court concludes that the most reasonable inference is that the valid signor signed for an additional voter in the same household?
Page 7, line 6; page 8, line 2; page 9, line 4; page 9, line 9, page 12, line 4, page 16, line 9; page 19, line 10, page 21, line 5; page 26, lines 11, 12, and 13.
Compare Exhibits 9 and 10; 11 with 14 and 15; 13; 12 and 17.
As the Designating Petition contains 321 valid signatures, it has a sufficient number of signatures to designate Stepherson as a candidate for County Legislator in the 3rd Legislative District.
Stepherson's Designating Petition is not "Permeated with Fraud"
Petitioners argue that as Stepherson was the subscribing witness on the pages in which eleven (11) signatures have been invalidated (out of 281 total signatures), the Designating Petition is permeated with fraud and must be declared invalid. "Where a challenging party establishes by clear and convincing evidence that a candidate participated in fraudulent activity, the entire designating petition will be invalidated (see Matter of Mattice v. Hammond, 131 A.D.3d 790, 791, 15 N.Y.S.3d 866 [2015]; Matter of Valenti v. Bugbee, 88 A.D.gd 1056, 1057, 930 N.Y.S.2d 319 [2011]; Matter of Bynoe v. Board of Elections of City of N.Y., 164 A.D.2d 929, 929-930, 559 N.Y.S.2d 588 [1990], Iv denied 76 N.Y.2d 705, 560 N.Y.S.2d 128, 559 N.E.2d 1287 [1990])." (Burman v. Subedi, 172 A.D.3d 1882,1883 [3rd Dept. 2019], emphasis added.)
The Court recognizes that candidates for office are held to a higher standard (see Burman v. Subedi, supra) and that Petitioner need not prove a "nefarious motive" (id.). However, Petitioner must still establish - by clear and convincing evidence- the existence of fraud in the obtaining of signatures, and that Stepherson participated in such fraudulent activity or was aware of same. Petitioners did not meet this heavy burden.
Certainly, the fact that signatures were declared invalid is not sufficient, in itself, to determine that Stepherson engaged in fraudulent activity. There must be some showing that Stepherson engaged in fraudulent activity in the production of the signatures. (See Kogan v. D'Angelo, 54 N.Y.2d 781 [1981]: Stipulation that 45 of 58 signatures on designating petition did not match signatures on registration cards resulting in the striking of the signatures did not by itself establish such gross irregularity or fraudulent practice bring into play the permeation principle to strike remaining 13 signatures, despite the fact that same subscribing witness had obtained all the disputed signatures, since no finding was made by trial court that signatures were fraudulently obtained.) (Compare also Tapper v. Sampel, 54 A.D.3d 435 [2nd Dept. 2008].)
Based upon the evidence adduced at the hearing, the Court finds Mr. Stepherson was inattentive, careless, and possibly irresponsible, by failing to ensure that he only received signatures from those persons with whom he interacted. Nonetheless the Court does not find that his behavior supports a conclusion that the entire Designating Petition was permeated by fraud, or that Stepherson engaged in fraud. The Court credits the testimony of Stepherson that those signatures added to the Designating Petition and deemed invalid to be the actions of the signor without any knowledge of Stepherson. Although Stepherson may have been careless in ensuring that the valid signor did not sign for another member of their household, his carelessness does not meet the high burden of showing that the entire Designating Petition was permeated with fraud, or that he knowingly allowed a signor to sign for a third party, or that he fraudulently signed the witness verification (knowing that the Designating Petition contained a signature that he did not observe).
In comparing what occurred here with cases in which a court determined that the designating petition was "permeated with fraud", Stepherson's conduct was not sufficient to determine by clear and convincing evidence that he committed fraud. For instance, in McHale v. Smolinski (133 ADad 520 [4th Dept. 1987]) the Fourth Department held that where "[n]ine different sheets contain the signatures of at least 17 persons who testified that someone other than the subscribing witness witnessed their signatures [and] .... two of the subscribing witnesses . . . collected 160 and 101 signatures, respectively, in a period of a few hours in one evening, [and] at least nine clearly forged signatures [, and where the], undisputed testimony shows that the candidate and those closely connected to her (her mother and father) participated in this fraudulent signature collecting process" that was sufficient to find fraud.
In Buttenschon v. Salatino (164 A.D.3d 1588 [4th Dept. 2018]), cited by Petitioners, the candidate "attested falsely that they had witnessed certain signatures on the designating petition inasmuch as they had allowed third-parties to sign the petition on behalf of the person named as the signatory on the designating petition (see Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 1058, 930 N.Y.S.2d 319 [3d Dept. 2011]), and that respondent attested to certain signatures although he was not "in the presence of the signatories when [they] signed the [designating] petition" (Matter of McHale v. Smolinski, 133 A.D.2d 520, 520, 519 N.Y.S.2d 890 [4th Dept. 1987]; see Election Law § 6-132[2]; Matter of Tani v. Luddy, 32 Misc.2d 53, 55, 221 N.Y.S.2d 314 [Sup. Ct., Westchester County 1961]). (Id. at 1589, emphasis added,) Here, the Court finds that Stepherson did not have any knowledge that the signors had added the signature of another person, and that when he signed the witness statement stating he was in the presence of the signatories, he did so believing it to be true.
Similarly, in Mattice v. Hammond (131 A.D.3d 790 [3rd Dept. 2015]), cited by Petitioners, the Third Department invalidated a designating petition due to candidate fraud. In that case the candidate allowed a signor to sign for their spouse, and the candidate "admitted that he falsely attested in the witness statement that each individual signed his or her name in his presence and that he also filed his designating petition knowing that three of the signatures were not signed by the individuals to whom they were attributed". (Id. at 791.) Here, Petitioners failed to establish Stepherson was aware of the invalid signatures and signed the attestation falsely.
Absent proof that Stepherson was aware that signors were adding additional signatories, it cannot be said that he committed fraud. As the Petitioners have the burden in establishing, by clear and convincing evidence, the existence of fraud (either fraud committed by Stepherson, or fraud "permeating" the Designating Petition) and the Court finds that they did not meet this burden, the Petition must be dismissed.
Based upon the forgoing, upon the papers herein, and the evidence adduced at the fact-finding hearing, it is hereby
Verified Petition with exhibits (NYSCEF Docket # 1; 2-7).
ORDERED ADJUDGED AND DECREED that the Petition, seeking to invalidate the Designating Petition filed by Marvin L. Stepherson for the position of County Legislator in the 3rd Legislative District, is DISMISSED.