Opinion
No. 12/8373.
2012-08-22
In the Matter of the Application of Ruth Brooks WARD, Objector, Petitioner, v. Jose A. CRUZ and John F. Lightfoot, Candidates for the New York State Assembly, 137th Assembly District Monroe County Board of Elections, Respondents.
Nixon Peabody LLP, Chtristopher D. Thomas, of counsel, for Petitioner. Van Henri White, for Respondents, Jose A. Cruz and John F. Lightfoot.
Nixon Peabody LLP, Chtristopher D. Thomas, of counsel, for Petitioner. Van Henri White, for Respondents, Jose A. Cruz and John F. Lightfoot.
Monroe County Attorney William K. Taylor and Deputy Monroe County Attorney Brian E. Marianetti, for Respondent Monroe County Board of Elections.
JOHN J. ARK, J.
In July 2010, respondents John F. Lightfoot and Jose A. Cruz individually filed designating petitions with respondent Monroe County Board of Elections seeking to be named the Democratic Party candidate for the office of Member of the State Assembly for the 137th Assembly District in the September 13, 2012 primary election. Objections to the designating petitions were filed and, when they were not invalidated by the Board, petitioner commenced this proceeding pursuant to Election Law § 16–102 and claims as follows (in bold):
Jose A. Cruz
1. Cruz's nominating petitions are invalid because his cover sheets were fatally flawed and were not corrected within the mandatory five day window.
Election Law § 6–134(2) states in part: “... When a determination is made that a designating petition does not comply with such regulations, the candidate shall have three business days from the date of such determination to cure the violation.” Cruz was notified of a first cover sheet violation on July 10, 2012 which he corrected on July 10, 2012. Cruz was notified of a second cover sheet violation on July 20, 2012 which he corrected on July 23, 2012.
Petitioner has not cited any authority that any and all violations must be corrected within the mandatory five day window irrespective of when the Board of Elections notifies the candidate of the violation. Attached to and incorporated in this decision and order is the August 8, 2012 letter from the New York State Board of Elections which addresses Mr. Cruz's twice corrected cover sheet. “Cover sheets may be amended at any time, as they only serve to channel petitions through the board of elections' various internal processes-the cover sheets do not interact' with the voters at the time the petitions are signed.”
2. Computer evidence must be preserved and testimony taken on the question of the addition of “Member of Assembly” to sheets 113–126.
Petitioner has conceded that, other than as evidence of fraud, a “line-by-line” hearing is unnecessary since the number of signatures on the petition which were not challenged before the Board of Elections exceeded the number required for designation on the primary ballot. However, petitioner claims that Cruz may have inserted “Member of Assembly” on sheets 113–126 at some date after the sheets were signed which would result in sufficient fraud to permeate and invalidate the entire designating petition. The court has reviewed sheets 113–126 which are for one public office and read
137TH NYS Assembly District
Member of Assembly
and are distinguishable from sheets 1 through 68 and 70 through 112 which are for one public office and one party position and read
MEMBER OF ASSEMBLY 137th DISTRICT
STATE COMMITTEE 137th AD MALE.
The court finds nothing prima facie fraudulent in sheets 113–126 presentation which would result in either their or sheets 1 through 68 and 70 through 112 invalidation.
The remaining contentions, including petitioner's argument that the designating petition should be invalidated on the basis of fraud, have been examined and are found to be unpersuasive.
John F. Lightfoot
1. Mr. Lightfoot's designating petition is invalid because it identifies only a geographic area and makes no mention of the public office Mr. Lightfoot is seeking.
Petitioner claims that the designating petition description of the office as
New York State Assembly
137th District
denotes not a public office, but a geographic territory, and is therefore invalid. Since neither the Court of Appeals nor the Fourth Department have addressed this issue, this court must follow the Third Department which, in a situation remarkably similar to the instant matter, held in Matter of Hicks v. Walsh, 76 AD3d 773, 774 [2010] ):
“Election Law § 6–132(1) requires that each sheet of the designating petition state the public office or party position sought by the candidate” (Matter of Dunlea v. New York State Bd. of Elections, 275 A.D.2d 589, 590, 713 N.Y.S.2d 89 [2000] ). In this case, McGrath's designating petition describes the public office as “New York State Assembly—122nd District.” Petitioners argue that this description is incomplete inasmuch as it does not specify that the office sought is “Member of Assembly.” They further contend that this insufficiency requires invalidation of the designating petition.
“We do not agree. While the suggested terminology may be more precise, we note that a lack of technical precision is not determinative where the description is “sufficiently informative under [Election Law § 6–132] ... so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections” ( Matter of Donnelly v. McNab, 83 A.D.2d 896, 442 N.Y.S.2d 532 [1981], lv. denied 54 N.Y.2d 603, 445 N.Y.S.2d 1025, 426 N.E.2d 1185 [1981]; see Matter of Levine v. Turco, 43 AD3d 618, 621, 841 N.Y.S.2d 388 [2007], lv. denied 9 NY3d 804, 842 N.Y.S.2d 780, 874 N.E.2d 747 [2007];Matter of Dipple v. Devine, 218 A.D.2d 918, 918, 630 N.Y.S.2d 808 [1995], lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608, 655 N.E.2d 705 [1995] ). In our view, the description “New York State Assembly,” which appears directly below the heading “Public Office” on each sheet of the designating petition, sufficiently informs the signers and any other interested parties that McGrath is seeking election as a member of that body. Under the circumstances presented, there is no reasonable probability that the absence of the specific language suggested by petitioners will cause confusion.”
The Lightfoot description is sufficient and the designating petition should not be invalidated on that basis.
2. Lightfoot has fewer than the required 500 valid signatures.
Respondent Monroe County Board of Elections has ruled that 184 of Lightfoot's 784 collected signatures were invalid, leaving Lightfoot with 100 more signatures than the necessary 500. Petitioner has submitted 118 signatures which she claims are either technically flawed or fraudulent and must be ruled upon by the court to determine their validity. The court has done so and finds 64 of the 118 challenged signatures to be valid.
The remaining contentions, including petitioner's argument that the designating petition should be invalidated on the basis of fraud, have been examined and are found to be unpersuasive.
Other than determining that only 64 of the 118 challenged Lightfoot signatures are valid, the petition including all matters not herein decided is denied. This constitutes the Decision and Order of the Court.