Opinion
Index No.: 190/16 Index No.: 643-16
01-19-2016
In the matter of the Application of RICHARD W. YASTRZEMSKI, Candidate Aggrieved, Petitioner, v. JULIE R. LOFTAD, as candidate of the Conservative Party for the Public Office of Councilman, Town of Southampton, and EDWARD M. WALSH, JR. and MICHAEL E. TORRES, as Presiding Officer and Secretary, respectively, of the Suffolk County Conservative Party Executive Committee, and EDWARD M. WALSH JR. and MICHAEL TORRES and FRANK A. TINARI, as members of a committee to fill vacancies set forth in a Conservative Party Certificates of Nomination and Authorization purporting to nominate JULIE R. LOFSTAD, and NICK LALOTA and ANITA KATZ, Commissioners constituting the Suffolk County Board of Elections, and SUFFOLK COUNTY BOARD OF ELECTIONS, Respondent(s), For an order pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, Declaring Invalid the Certificate of Nomination purporting to designate JULIE R. LOFSTAD as the Conservative Party candidate for the public office of Councilman, Town of Southampton, for the January 26, 2015 Special Election, and Restraining said Board from placing the name of JULIE R. LOFSTAD on the ballot as candidate for Councilman, of the Town of Southampton, as the designee of the Conservative And In the Matter of the Application of NICHOLAS J. LALOTA, in his official capacity as Republican Commissioner of the Suffolk County Board of Elections, Petitioner, v. ANITA S. KATZ, in her official capacity as Democratic Commissioner of the Suffolk County Board of Elections, THE EXECUTIVE COMMITTEE OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE, -and- THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE, -and- EDWARD M. WALSH, JR., and MICHAEL E. TORRES, as Presiding Officer and Secretary, respectively, of the Executive Committee of the Suffolk County Conservative Party of New York State, -and- EDWARD M. WALSH, JR., REGINA DUFFY and MICHAEL E. TORRES, as Chairman, Treasurer and Secretary, respectively, of the Suffolk County Conservative Party, -and- EDWARD M. WALSH, JR., MICHAEL E. TORRES, and FRANK A. TINARI, as members of the committee to fill vacancies, -and- RICHARD W. YASTRZEMSKI, candidate of the Republican Party for the Public Office of Councilman, Town of Southampton and Candidate Aggrieved, JULIE R. LOFSTAD, purported candidate of the Conservative Party for the Public Office of Councilman, Town of Southampton, -and- EDWARD M. WALSH, JR., RICHARD JOHANNESEN, MICHAEL E. TORRES, DON NOHS, REGINA DUFFY, KENNETH A. AUERBACH, JAMES J. DUFFY, JOHN E. FLYNN, NICK MACRIS, JAMES W. MALONE, WILLIAM R. MENENDEZ, THOMAS MONTIGLIO, SR., JOSEPH J. MONTOURI, JR., DONALD H. NOHS, FRANK J. PROFETA , MICHAEL RANDO, FRANK A. TINARI, MICHAEL E. TORRES, DENNIS J. BARRAVECCHIO, CHRISTINE M. BELROSE, JOHN C. BENNET, ROGER BALCKMORE, ROBERT J. BROWN, RICHARD J. CLARK, 111, TODD M. COBE, JOHN CONDON, JOHN J. COUGHLIN, DANIEL A. DEL VALLE, RICHARD A. DIAZ, MICHAEL DIFEDE, FRANK R. ENDEE, THOMAS A. GARGIULO, PETER S. GUNTHER, THOMAS J. HENNESSEY, JAMES J. KEVINS, JR., JAMES E. MCELHONE, JOHN P. MEYERRICKS, JR., THOMAS P. MOLNAR, CATHERINE M. MORGAN, MARIANNE PASTORESSA, RICKY PORTERA, DEBORAH POULOS, VINCENT PULEO, RONALD C. SCHULE, ANTHONY S. SENFT, JR., RANDOLPH W. SPELMAN, DANIEL J. SULLNAN, PATRICIA A. WALSH, MICHAEL G. WALSH, JOHN M. LORENZO, CHRISTOPHER LAMBER, JEREMY D. BRANDT, Members Constituting the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State and/or Members Constituting the Suffolk County Committee of the Conservative Party of New York State, -and- SUFFOLK COUNTY BOARD OF ELECTIONS, Respondents, For an Order Pursuant to the Election Law, and Article 78 of the CP1.R. Declaring Invalid the Respondent Candidate's, Julie R. Lofstad's, Purported Conservative Party Nomination, and to Restrain the said Board of Elections from Placing the Name of said Candidate, Julie R. Lofstad, Upon the Official Ballots of the Special Election to be held on January 26, 2016 for the public office of Councilman, Town of Southampton.
The above two proceedings each relate to the special election scheduled for January 26, 2016 for the public office of Councilman in the Town of Southampton. In the Yastrzemski v. Lofstad et al (index# 00190/2016) ("Yastrzemski Action") one of the candidates Richard Yastrzemski seeks to invalidate the candidacy of his opponent Julie Loftad. In the La Lota v. Katz (index3642/2016) ("La Lota Action"), Nicholas La Lota in his capacity as a Commissioner of the Suffolk County Board of Elections seeks to force fellow Commissioner Anita Katz to declare the Loftad candidacy invalid. The Court has heard these cases together due to the limited time between these matters coming before it, and the date of the election. In addition, the Court allowed respondents to serve and file answers and counterclaims by e-mail to the Court by 5pm on Sunday January 17, 2016. This was also the date for simultaneous exchange of papers by the attorneys. The attorneys were directed to file originals on Tuesday January 19, 2016 when the Court reopens after the Martin Luther King Holiday. The Court in the La Lota Action deemed all the individual members of the Executive County Committee of the Conservative Party as well as its treasurer not to be necessary parties, who need not be served. In the La Lota action, the Court ordered service on Yastrzemski through his attorney by e-mail but the Court does not deem him a necessary party in that proceeding.
FACTS
Julie R. Lofstad ("Lofstad"), a respondent in both the Yastrzemski and La Lota actions, is seeking election to the public office of Councilman, Town of Southampton in the imminent January 26, 2016 Special Election as a candidate of the Democratic Party, the Independence Party and the Conservative Party.
Richard W. Yastrzemski ("Yastrzemski"), the petitioner in the Yastrzemski Action is a candidate for the public office of Councilman, Town of Southampton, on the Republican Party Line. The Suffolk County Board of Elections, which is a respondent in both actions, was and is charged with the responsibility of the supervision of the conduct of official elections held in the Town of Southampton, County of Suffolk, including the duties of placing a candidate's name on the ballot as a designee of the Conservative Party for the office of Councilman, Town of Southampton, at the January 26, 2016 Special Election; including the review and determination of objections and specification of objections to Certificates of Nomination and Authorization for the Conservative Party for the public office of Councilman of Southampton in the said Special Election; notification of a determination of non-compliance, maintaining the official voter registration list and official maps for Suffolk County election districts within the Town of Southampton and the preparation and certification of official Special Election ballots for use in the Town of Southampton. Special Election ballots for use in the Town of Southampton.
On December 10, 2015, there were filed with the Suffolk County Board of Elections certain papers allegedly constituting a Certificate of Nomination and a Certificate of Authorization of the Conservative Party, naming Lofstad as a candidate for the public office of Southampton Town Councilman, at the January 26, 2016 Special Election. The Certificate of Nomination and Certificate of Authorization purporting to nominate Julie R. Lofstad were authorized and voted on at a meeting of the Suffolk County Conservative Party Executive Committee that was duly convened and held at 320 Carleton Avenue, Central Islip, NY 11722 on the 9th day of December, 2015 for the purpose of nominating a candidate for the Public Office of Councilman, Town of Southampton.
By notice from the Suffolk County Board of Elections dated December 10, 2015, bearing the names of both the Petitioner Commissioner La Lota and the Respondent Commissioner Katz, Respondent-Candidate was notified of the filing and of her nomination by the Conservative Party, and further, that her "name shall appear as it appears in this notice on any and all ballots," subject only to "challenge pursuant to article 6 of the Election law." Nothing in the "December 10, 2015 Notice of Filing," from the Suffolk County Board of Elections and its two Commissioners indicated that Respondent Lofstad's nomination by the Conservative Party or the filing of the papers nominating her were somehow conditional pending further review of those papers or any vote thereon.
Yastrzemski filed or caused to be filed certain genera! objections and specifications of objections with respect to the Certificate of Nomination and Authorization seeking to place the name of the Lofstad herein on aforesaid alleged Certificate of Nomination and Certificate of Authorization filed by, or on behalf of, Lofstad is insufficient, ineffective, and invalid, does not conform to the provisions of the Election Law and other Laws of the State of New York, and the Rules and Regulations of the Suffolk County Committee of the Conservative Party of New York State, and the Suffolk County and New York State Board of Elections, and is null and void.
Thereafter Commissioner La Lota and Commissioner Katz met and voted on the Objections. Commissioner La Lota made a motion to invalidate the Certificate of the Nomination, Commissioner Katz voted against invalidation. The motion to invalidate failed, thus the minutes state the Certificate of Nomination was decreed valid as follows: "Motion failed by split decision. Therefore the Nominating Certificate is Valid." Both Commissioners signed the minutes as they did the backup worksheet.
PROCEDURAL HISTORY OF YASTRZEMSKI AND LALOTA ACTIONS
On January 7, 2016 Yastrzemski instituted by filing an order to show cause and a petition as a candidate aggrieved, based on allegations that the Certificate of Nomination and Certificate of Authorization filed by, or on behalf of, Lofstad is invalid, does not conform to the provisions of the Election Law and other Laws of the State of New York, and the Rules and Regulations of the Suffolk County Committee of the Conservative Party of New York State, and the Suffolk County and New York State Board of Elections and thus is null and void. Yastrzemski alleges that the meeting at which Lofstad was nominated to be the Conservative Party candidate for Councilman, was solely noticed electronically, by e-mail, one day prior to the meeting, at "11:55 a.m." on December 8, 2015, in violation of Article IV, Section 3 of the Conservative Party Rules. Those party rules require that "Notice of meetings of the Executive Committee and all other committees, be given by mail at least five (5) days" before such meeting. Moreover, even for County Committee meeting "[n]otice of the time and place of all meetings of the County Committee must be mailed to each member not less than five (5) days before such meeting, and notice of all adjourned meetings must be mailed to each member at least two (2) days prior thereto.
On January 14, 2016 the attorneys representing the parties in the Yastrzemski action appeared before this Court. At that time the Court questioned the attorneys regarding their client's positions in this case. Questions of standing, lack of necessary parties, timeliness as well as other issues were discussed. The Court asked specifically about the timeliness of the filing of the La Lota proceeding. There was no dispute that the Certificate of Authorization and Certificate of Nomination were filed December 10, 2016 and the La Lota proceeding was commenced on January 7, 2016, more than 10 days after filling of said Certificate of Authorization and Certificate of Nomination. The Court also inquired about the seeming failure to name certain necessary parties, specifically the absence of the Executive Committee of the Suffolk County Conservative Party as a named party. The Court a!so queried the issue of Standing, since Yastrzemski, asserting aggrieved candidate status, was not a member of the Conservative party. Yet Yastrzemski set forth in his petition, an attack on the internal affairs of the Conservative Party, who had not been named a necessary party.
An on the record argument and discussion ensued regarding the applicability of Election Law 3-212 and the validity of a split decision by the Commissioners. The Court set up a briefing schedule for the attorneys to submit briefs by 5PM Friday January 15, 2016 via e-mail so the Court would endeavor to render a decision by the end of the three day weekend (Martin Luther King Day was on January 18, 2016).
On Friday January 15 at about 3:00 p.m. the Court received a call from the County Clerk's office in Riverhead informing it that a new order to show cause regarding the Special Election on January 26th was being filed. The Court directed that the "new" Order to Show Cause be sent to it in Central Islip and that all the attorneys be notified to appear before it at 4:30 p.m.. The Court arranged for court personnel to be available and for the court to remain open after normal hours.
On January 16, 2016 a Hybrid Proceeding commenced under the provisions of the Election Law (Articles 16 and 6 and other applicable provisions) and Article 78 of the C.P.L.R. was commenced by La Lota, in his official capacity as the Republican Commissioner of the Suffolk County Board of Elections. This new action included parties not named in the original Yastrzemski proceeding, most notably the Executive Committee of the Suffolk County Conservative Party and the Suffolk County Conservative Committee.
In the La Lota action, Commissioner La Lota asks the Court to (1) declare the purported Nomination of Respondent Candidate, Julie R. Lofstad, as designated by the Conservative Party, to be insufficient, defective, invalid, null and void and (2) to direct Commissioner Katz to certify and sign an official ballot for the January 26, 2016 Special Election which does not contain Lofstad as the Conservative Party candidate. Petitioner's posits that the Certificate should be deemed invalid because the vote on the Certificate of Nomination was a split vote by the Commissioners. This vote was taken on December 22, 2015, more than 10 days from when the certificates were filed.
At the court appearance, after normal court hours on Friday, January 15, 2016 special arrangements were made for the Court to be open with staff to have a hearing on the La Lota action on the following morning, Saturday January 16, 2016. On that day, La Lota did not appear but instead submitted an affidavit dated January 16, 2016 the same day as the hearing was set. There was no explanation as to why La Lota did not appear, except that Commissioner La Lota's attorney maintained that all of the questions were answered in the affidavit. The primary purpose of the hearing was to hear from Commissioner La Lota as to what documents he relied on in commencing his action, whether he could rely on documents other than the Certificate itself, whether he is permitted to engage in fact finding and whether he had standing to commence the action. It is noted that at the January 15, 2016 court appearance, when the Court was asked by Commissioner's La Lota attorney whether Petitioner was being ordered to appear, the Court did not direct the same but stated that it wanted to hear from him. In La Lota's January 16, 2016 affidavit he states his reason for instituting the action to have the Court declare the Certificate invalid was that after he reviewed the "Certificate of Nomination, the Objections and Specifications of Objections and the Rules and Regulations of the Suffolk County Committee of the Conservative Party of New York State, all of which are on file with the Board, I determined that the Conservative Party Nominating Certificate, naming Julie R. Lofstad for the public office of Councilman, Town of Southampton is invalid." The Court notes that all of the information referenced in La Lota's affidavit was available to him on December 21, 2015 when specifications were filed. Commissioner La Lota further states in his affidavit: "Notwithstanding the disagreement by the Commissioners, by reason of a split vote the Nominating Certificate was deemed valid.
On or about January 8, 2016, I was notified that a lawsuit was commenced against me in connection with the aforementioned ruling. In response thereto, I elected to retain my own counsel.
Based on my conversations with my counsel, I realized that the Certificate of Nomination should not have been deemed valid by reason of a split vote.
As such, I commenced this action to, inter alia, correct the aforementioned error of law made by the Board."
Commissioner La Lota did not, nor did his attorney, give any reason why he did not appear other than that the affidavit answers the questions. It was clear to the attorneys present on January 15, that in order for the Court to hear from and inquire of Petitioner, the Court was undertaking unusual steps to arrange for the Court to be open and staff to come in. The decision to arrange for a Saturday court appearance in the face of budgetary constraints facing the court system was prompted by the exigency of an impending election on January 26, 2016. The court staff, attorneys and this Judge appeared, but the person whose application was being considered did not. The Court further notes that at the January 15, 2016 court appearance, Mr. Stafford, the attorney for Yastrzemski, though notified of the action, did not appear but initalyy indicated that he could not attend on January 15th. Following the January 15, 2016 court appearance the Court became aware of a facsimile sent by Mr. Stafford indicating that he could not appear on the La Lota action because he was out-state. The communication from Mr. Stafford further indicated that he did not oppose in any way, the relief sought in the La Lota action.
FORM OF PROCEEDING
La Lota institutes a hybrid proceeding pursuant to Article 78 and the Election Law and in doing so tries to remove himself from the strictures of the election law. The Court notes that this proceeding was only instituted after a conference and argument on the record on January 14, 2016 at which the Court indicated the infirmity in the Yastrzemski Action as to timeliness, necessary parties, standing and other issues. Commissioner La Lota commenced his proceeding based on facts, which were well within his knowledge since December 22, 2015 and veils his concern by stating it was a matter of interpretation of what a split decision means. He did not come to testify on how long he had this concern, how he applied this knowledge in past decisions, or how he distinguishes determinations on split decisions on counting ballots post-election in which a split decision would result in counting the ballot. To this iast point, Petitioner's attorney stated on the record and did not dispute upon questioning from the Court, that in a post-election review of ballots a split decision renders the ballot valid. Similarly, La Lota failed to enlighten the court as to why his position in his petition differs from what was done historically or how past practice established that a split decision resulted in a determination of invalidity. Election Law sets a process and procedure to assert a challenge that was not adhered to here.
La Lota maintains that his application is akin to an action under CPLR Article 78 in that it challenges an action of his own Board. This argument is without basis given the facts and law. A litigant cannot attempt to avoid the statute of limitations established in the Election Law set up to bring a quick resolution to matters involving the electoral process by attempting to bring an Article 78 proceeding.
"Notwithstanding the characterization of this proceeding as one, pursuant to CPLR article 78, the petitioners seek to exclude candidates from the ballot based on their alleged failure to comply with the nomination and designation procedures of Election Law article 6 ... Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law 16-102(2)."Ciotti v. Westchester County Board of Elections, 109 A.D.3d 972 (2nd Dept.2013); see also: Crell v. O'Rourke, 88 A.D.2d 83(2nd Dept. 1982); New York State Committee of Independence Party v. New York State Board of Elections, 87 A.D.3d 806(3rd Dept. 2011). Petitioners' challenge to the certificate of authorization is in essence a challenge to designations." When a party seeks judicial intervention in the election process, the court's jurisdiction is limited to that expressly conferred by the Election Law, and characterization of the proceeding or relief as pursuant to CPLR article 78 will not enable intervention in the election process when it would not otherwise be available under the Election Law"(internal citations omitted); Ferguson v. Chesseman, 138 A.D.2d 852 (3rd Dept. 1988)( we have consistently held that the exclusive remedy for seeking to remove a candidate from the ballot is a proceeding pursuant to the Election Law , Matter of Scaringe v. Ackerman, 119 AD 2d 327,328-329. aff. 68 NY2d 885 ;Matter of Garrow v.Mitchell, 112 AD 2d 1104, 1105, lv denied 65 NY2d 607. Having failed to take advantage of the right given to him as an aggrieved candidate to judicially challenge the designating petition at issue herein by way of a proceeding pursuant to Election Law § 16-102, petitioner "cannot avoid the time requirement of the statute by initiating a new and different proceeding having no statutory basis" Matter of Scaringe v. Ackerman, supra., at 329.
In Checchia v. Tioga County Board of Elections, 169 Misc.2d 732 (Sup. Ct. Tioga Co. 1996) aff. 233A.D.2d 752(3rd Dept.1996) the Tioga Court held that "Petitioner's attempt to avoid his time limitation by utilizing an article 78 proceeding and by arguing that Respondent Board exceeded its authority in reviewing invalid objections in unpersuasive." That Court went on to state that even if the court were to consider estopping respondents from relying upon the applicable statute of limitations, such equitable relief would not be available to petitioners because they do not come before the court with clean hands and if there was a genuine concern that improper objections were being upheld by that Board of Election, they should have applied for judicial review as soon as they learned of the Board's action. This is the situation in the present case, in which La Lota knew and participated in of the Suffolk Board of Election's action, in fact, he made the motion and signed off on the Board's decision, then waited until January 15, 2016 to file his Petition challenging the action he had had knowledge of, signed off on and under which at oral argument the Court was informed that military and absentee ballots were sent out. (Along with other issues not addressed in his affidavit, the issue of military and absentee ballots being sent out could have been addressed by Commissioner La Lota if he appeared in Court on January 16, 2016).
TIMELINESS
Section 16-102(2) of the Election Law provides, in pertinent part, that:
". . . A proceeding with respect to a primary, convention, meeting of a party committee or caucus shall be instituted within ten days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee."
The statute of limitations for instituting this Election Law challenge action was ten days from the filing of the certificate of nomination or certificate of authorization. The failure to abide by the time constraints in Election Law matters is jurisdictional. Buhlmann v. LeFever, 54 N.Y.2d 775. A court cannot extend the statute of limitations for an Election Law proceeding. Loucky v. Buchanan. 49 A.D.2d 797, 373 N.Y.S.2d 414 (4th Dept. 1975); McDonough v. Scannapieco. 65 A.D.3d 647, B83 N.Y.S.2d 906 (2nd Dept. 2009); Kurth v. Orange County Board of Elections. 65 A.D.3d 642, 883 N.Y.S.2d 908 (2nd Dept. 2009). Here the Executive Committee meeting was December 9, 2015 and both the Certificate of Nomination and Certificate of Authorization were filed with the Suffolk County Board of Election on December 10, 2015. To be timely both proceedings would have to have been commenced by filing and completion of service by December 20, 2015. Neither the Yastrzemski Action nor the La Lota Action was instituted by that date.
Election Law of the State of New York sets forth the manner and method for submitting petitions, Certificates of Nomination, Certificates of Authorizations and other documents to Boards of Elections and a process for challenging the same. These procedures set forth a stringent time frame so that such challenges may receive timely review by the New York State courts without disrupting the election process.
La Lota seeks to avoid these time strictures by invoking Article 78 of the CPLR. The courts have been uniform in holding that despite such attempts at circumvention, the provisions of the Election Law apply. As the Second Department wrote in Lewis v. Garfinkle, 32 A.D.3d 548 (2d Dept. 2006): "The gravamen of this proceeding pursuant to CPLR article 78 is that certain candidates were improperly placed on the ballot in Suffolk County due to the allegedly illegal issuance of Wilson- Pakula certificates by the Committee. As the proceeding seeks to remove candidates from the ballot based on the nomination and designation procedures of Election Law article 6, it is governed by the statute of limitations set forth in Election Law § 16-102 (2).see Matter of Scarinse v. Ackerman, 119 AD2d 327 (1986). affd 68, NY2d 885 (1986), pursuant to Election Law § 16-102 (2), July 27,2006, was the deadline to commence judicial proceedings with respect to petitions designating persons as candidates for public office. Accordingly, this proceeding, commenced on August 11, 2006, was untimely." Thus, both the Yastrzemski Action and La Lota actions are untimely.
THIS DISPUTE INVOLVES THE INTERNAL AFFAIRS OF A PARTY
Courts generally do not interfere with the internal affairs of a political party. Matter of Kahler v. McNab, 48 N.Y.2d 625, 421 N.Y.S.2d 53 (1979); Matter of Natrella v. Terenzi, 236 A.D.2d 569 (2nd Dept., 1997) lv. denied 89 N.Y.2d 810; Matter of Stewart v. Natrella, 217 A.D.2d 599 (3rd Dept.1995) lv. denied 86 N.Y.2d 704. As non-members of the Conservative Party, Yastrzemski and La Lota are prohibited from asserting objections or a challenge to the Conservative Party's nomination of any other candidate, including Lofstad, based upon the internal operations, including the application of the adopted rules, of the Conservative Party. See Matter of Fehrman v. New York State Board of Elections. 10 N.Y.3d 759 (2008); Nicolai v. Kelleher. 45 AD3d 960 (3d Dept. 2007); Matter of Stempel v. Albany County Bd. of Elections. 60 N.Y.2d 801, 469 N.Y.S.2d 687,457 N.E.2d 793 (1983); Matter of Wvdler v. Cristenfeld. 35 N.Y.2d 719,361 N.Y.S.2d 647,320 N.E.2d 278(1974). This is the corollary of the well-settled rule that "courts will not interfere with the internal affairs of a political party," Matter of Master v. Pohanka. 10 N.Y.3d 320 (2008); see also Matter of Liepshutz v. Palmateer, 112 A.D.2d 1098, 1099-1100. affd 65 N.Y.2d 963. New York State courts have consistently held that internal issues arising within political parties are best resolved within the party organization itself and that judicial involvement should be avoided. Wong v Cook, 87 A.D.3d 659, 928 N.Y.S.2d 365 (2nd Dep't. 2011); Bachman v. Covney, 99 A.D.2d 742,471 N.Y.S.2d 648 (2nd Dept. 984).
LACK OF STANDING
Non-party members may not attack the validity of a Certificate of Authorization or Nomination granted to a candidate where the underlying challenge is merely to internal affairs, conduct of a meeting or operating function of a political party, rather than a legislatively mandated requirement of the Election Law. Matter of Wydler v. Cristenfeld. 35 N.Y.2d 719,361 N.Y.S.2d 647,320 N.E.2d 278(1974); Koppel v. Garcia, 275 A.D.2d 587, 712 N.Y.S.2d 697(3rd Dept.2000). In the instant matters neither Yastrzemski nor La Lota assert they are enrolled members of the Conservative Party. A fact ignored in La Lota's petition and affidavit and which could have been resolved if he appeared in Court, is whether or not La Lota is a registered member of the Conservative Party. In Porretta v. Costantino, 133 Misc. 2d 436, 507 N.Y.S.2d 136(Richmond Cty.1986), the court stated who has standing as an aggrieved party to file objections. The Porretta court explained that "a voter enrolled in the Democratic Party, for example, would have no interest or concern in the nomination of a candidate of the Republican, Conservative or Liberal Party for public office. The issue of who will represent the party in the general election is purely an internal party matter, to be decided by its enrolled members.
Neither Yastrzemski nor La Lota have demonstrated they are members of the Conservative Party, thus both are prohibited from asserting objections to the Conservative Party's nomination of any other candidate, including Lofstad, based upon the internal operations, including the application of the adopted rules of the Conservative Party. See Matter of Fehrman v. New York State Board of Elections. 10 N.Y.3d 759 (2008); Nicolai v. Kelleher. 45 AD3d 960 (3d Dept. 2007); Matter of Stempel v. Albany County Bd. of Elections. 60 N.Y.2d 801, 469 N.Y.S.2d 687,457 N.E.2d 793(1983); Matter of Wvdler v. Cristenfeld. 35 N.Y.2d 719,361 N.Y.S.2d 647,320 N.E.2d 278(1974). It is the corollary of the well-settled rule that "courts will not interfere with the internal affairs of a political party," Matter of Master v. Pohanka. 10 NY3d 320 (2008); Matter of Liepshutz v. Palmateer, 112 AD2d 1098, 1099-1100(3rdDept.l985) affd. 65 NY2d 963(1985). Moreover, in challenges brought by members of the same political party, courts have held that internal issues arising within political parties are best resolved within the party organization itself and that judicial involvement should be avoided. Wong v Cook, 87 A.D.3d 659, 928 N.Y.S.2d 365 (2nd Dept. 2011); Bachman v. Coyne, 99 A.D.2d 742,471 N.Y.S.2d 648 (2nd Dept. 1984).
Where the challenge involves party rules or the internal affairs of a political party, a candidate from another party lacks standing to bring suit as an aggrieved candidate. Matter of Wydler v. Cristenfeld, 35 N.Y.2d 719, 720; Matter of Stempel v. Albany County Bd. Of Elec., 97 A.D.2d 647, 648, (1983), aff'd 6 N.Y.2d 801 (1983); Matter of Friedman v. Lefever, 122 A.D.2d 903, 904 (2ndDeptl986); Matter of Swarts v. Mahoney, 123 A.D.2d 520(4thDept. 1986).
With specific regard to the standing of Petitioner La Lota, it is clear that La Lota does not claim that he is an aggrieved candidate, a party chairman, or even a voter eligible to vote in the Special Election. As such Petitioner La Lota does not meet the requirements for initiating a proceeding under Article 6 or 16 of the Election Law and is not authorized to do so. The Court must therefore conclude that Petitioner La Lota's action is an improper and baseless attempt to insert himself into the electoral process and to circumvent the procedures and requirements of Election Law . Such a litigation maneuver will not survive the scrutiny of this Court.
La Lota seemingly relies on an exception for instances in which a commissioner has been permitted to sue in order to resolve otherwise irresolvable disputes concerning the proper wording of ballot resolutions. There is no authority permitting a single commissioner to unilaterally to seek to remove a candidate for public office from the ballot. Article 6 and 16 of the Election Law provides ample avenues for candidate challenges. This must be compared with actions other than those regarding political imbalance or equal representation as opposed to those that affect the whole Board of Elections. See: Graziano v. County of Albany, 3 N.Y.3d 475 (2004) and County of Nassau v. State, 100 A.D.3rd1052 (3rd Dept. 2012).
Based upon the foregoing facts and applicable law, neither La Lota nor Yastrzemski has standing to bring the subject actions.
FAILURE TO NAME A NECESSARY PARTY
Even if it is assumed this Court were to find that Yastrzemski Action is timely and that he had standing, Yastrzemski failed to name, and join, necessary parties, to wit: the Executive Committee of the Suffolk County Conservative Party and Suffolk County Conservative Party. In Miller v. Lapine, 43 AD3d 480 (2d Dept. 2007) the petitioner's failure to name the Executive Committee of the Suffolk County Conservative Party in challenging its actions and authority was jurisdictionally fatal). Similarly, in Dixon v. Reynolds, 65 AD3d 819 (4th Dept. 2009), a proceeding seeking a determination interpreting the political party's rules, the petitioner was required to name and serve the party.
Yastrzemski's Action cannot challenge the actions and authority of an Executive Committee of the Suffolk County Conservative Committee without naming its Executive Committee as a party in this litigation. Rizzo v. Withers. 153 A.D.2d 497, 551 N.Y.S.2d 71 (2nd Dep't. 1990); Curcio v. Wolf. 133 A.D.2d 188, 518 N.Y.S.2d 694 (2nd Dep't. 1987); Miller v. Lapine. 43 A.D.3d 480, 844 N.Y.S.2d 313 (2nd Dep't. 2007); Fritz v. Esposito. 2014 NY Slip Op. 51188(U) (Sup. Ct. Suffolk Co. 2014).
Yastrzemski also failed to name the Suffolk County Conservative Committee as a party, thus making his action defective. Miller v. Lapine, 43 AD3d 480 (2d Dept. 2007), Dixon v. Reynolds, 65 AD3d 819 (4th Dept. 2009); Fusco v. Spano, 275 A.D.2d 427(2ndDept. 2000); Jenkins v. BOE, 270 A.D. 436(2ndDept. 2000)
SPLIT DECISION
In Scaturro v. Maloney. 7 6 A.D.3d 688, 690 (2d Dept. 2010), the court ruled upon the authority of a Board of Elections to look beyond a designating petition that was filed with it, in determining that the Board of Elections has no such authority, the court wrote as follows:
"It is settled that boards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the [designating] petition, and that such extrinsic matters, if any, are to be determined in court proceedings only" Schwartz v Heffeman , 304 N.Y. 474.480 (1952). Boards of election are vested only with the authority to perform a "ministerial examination" of a designating petition Schwartz v Heffeman, 304 N.Y. at 480; Matter of Feustel v. Garfinkle, 29 A.D.3d 831.831-832 (2ndDept.2006); Matter of Sullivan v New York City Bd. of Elections, 224 A.D.2d 565(2nd Dept.1996); Matter of Bednarsh v. Cohen, 267 App. Div. 133, 135(1st Dept.1943): Matter of Waters v. Cohen, 248 App. Div. 830(2nd Dept1936). Thus, it is not within the power of a board of elections to make determinations respecting issues of fact (see Matter of Feustel v. Garfinkle, 29 A.D.3d at 831-832 ; Matter of Bednarsh v Cohen. 267 App. Div. at 135; Matter of Waters v. Cohen, 248 App.Div. at 830).
The Court of Appeals in Schwartz v. Heffeman. 304 N.Y. 474,480, 109 N.E.2d 68 held that a board of elections may not consider questions of fact or objections not appearing on the face of the petition; it may only ministerially examine the face of petition to determine its compliance with the Election Law, having done so, the board is functus officio, and if such examination shows compliance, it is bound to go no further, accept the document and place the name on the ballot. Schwartz v. Heffeman, 304 N.Y.474, 480, 109 N.E.2d 68, 70. No less of a rule applies here and Commissioner La Lota's protestations to the contrary have no basis as what he did in this case is exactly what the Court Appeals instructed not to do. He looked beyond the face of both certificates for reasons yet unexplained to this Court's satisfaction, though given the opportunity to do so.
In Lepke v. Harris, 141 Misc.2d 765,766 (Sullivan County 1988), the Court held in a dispute involving various certificates of nomination: "At the outset the court finds that it is beyond question that a filed and accepted certificate of nomination is presumptively valid until properly and successfully challenged." See also: Snell v. Young, 88 A.D.3d 1149 (3rd Dept. 2011).
As to determining the validity of a Nominating Certificate the Court Appeals in Application of Lindgren. 232 N.Y. 59 (1921) stated "For the purpose of filing the certificates of nomination and placing the names of nominees upon the official ballot, the board of elections acts ministerially. If, for any reason not appearing upon the papers, the certificate is insufficient, illegal, or invalid, and the names of the nominees should not be placed upon the official ballot, a direction to this effect should first be made by the Supreme Court or the county judge. Matter of Murphy, 189 App. Div. 135, 178 N. Y. Supp. 236; Matter of McGrath, 189 App. Div. 140,178 N. Y. Supp. 231; Saxas' Manual of Elections, p. 220".
This presumption of validity continues when there is a split vote among commissioners. Acito v. McCarthy, 88 Misc. 2d 55(Albany Cty.1976); see also Rose v. Smith, 220 A.D. 2d 922 (3rd Dept.1995)
The split vote of the Commissioners of Election on December 22, 2015, failed to sustain Commissioner La Lota's motion to invalidate the Certificates of Nomination and Authorization means that both certificates were valid. Moreover, since the filed documents are presumptively valid any change in that presumption would require a majority vote by the Commissioners.
SANCTIONS AS TO LA LOTA
A Court has wide discretion in the imposition of sanctions which this Court does not impose lightly, nor upon judicial whim. However, where it may be established a party has acted in bad faith or brought frivolous litigation sanctions may be considered or requested. Certain of the attorneys for the Respondent Parties make such a request in writing or on the record. Rule 130-l.l(c) of the Rules of the Chief Administrator sets forth in relevant part that conduct is frivolous if
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;
This Court is urged by certain of the Parties' attorneys that each of the above considerations is present in this case. First, it is alleged that the Petition brought by Commissioner La Lota was time barred and that he lacked standing to bring the Petition. Second, the timing of the Petition evinces it was "undertaken primarily to delay or prolong the resolution of the litigation and to harass or maliciously injure another" to wit: Lofstad.
Second it is alleged, the Court made clear to Commissioner La Lota's counsel that it would be advisable to have Commissioner La Lota available to take the stand in support of the allegations in his petition on the following day when the matter was made returnable through the Court's having gone to great lengths to accommodate this matter by opening the Court on a Saturday so that the matter could be heard. It is further urged to the Court that Commissioner La Lota chose to absent himself from the proceedings and instead Petitioner's counsel provided a self-serving hearsay affidavit of Petitioner which was utterly insufficient to meet the Petitioner's burden.
Rule 130-l.l (c) further states that "Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the:
(1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and
(2) Whether or not the conduct was continued when its lack of legal of factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party."
In the case at bar, certain of the Parties attorneys allege that the lack of clear legal or factual basis and merit was apparent, and was brought to the attention of Petitioner's counsel during the argument on the Order to Show Cause on Friday January 15th. An attorney for one of the parties alleges that despite the fact that "the Petition was frivolous afi initio", when Petitioner failed to show up at the hearing on Saturday January 16th, it merely compounded the bad faith shown on Petitioner's part.
Petitioner could have withdrawn his application on the return date; he chose not to do so.
Finally, it urged to this Court, that this is not the first time that Commissioner La Lota has engaged in actions and conduct to delay or prolong the resolution of the litigation, or to harass or maliciously injure another in an Election Law matter The Court is informed that in La Lota v. Katz, 2015 WL 618041 (U) Commissioner La Lota engaged in similar activity, which it is alleged, demonstrates a pattern of bad faith and if left unsanctioned will most likely re-occur. However, the Court at this time cannot consider such sanctions without a hearing before the Court to determine the need for, the purpose of, and the amount of sanctions, if any, to be imposed.
Based upon the foregoing the Court has determined, and it is
ORDERED, that the La Lota action is dismissed; and it is further
ORDERED, that Yastrzemski Action is dismissed; and it is further
ORDERED, the Suffolk County Board of Elections, its Commissioners and each of its employees is directed to immediately certify and sign Official Ballots for the Special Election to be held on January 26, 2016, such ballots shall contain the name of Julie R. Lofstad as candidate of the Conservative Party for the public office of Councilman, Town of Southampton, as well as a candidate of the Democratic, and Independence Parties for the public office of Councilman, Town of Southampton, and to take all necessary steps to prepare voting machines, print and distribute ballots and to perform all other related and necessary steps for the January 26, 2016 Special Election in Southampton, New York; and it is further
ORDERED that Nicholas La Lota is to personally appear before this Court on January 25, 2016 for a hearing to determine whether this Court should impose sanctions upon him and if such sanctions are to be imposed, the amount of such sanctions.
The foregoing constitutes the Decision and Order of this Court. Dated: January 19, 2016
Central Islip, New York
/s/ _________
HON. JOHN J. LEO, J.S.C.