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UGELL SHOULD NOT HAVE BEEN DISQUALIFIED AS A CANDIDATE FOR TOWN SUPERVISOR; THE FACT THAT UGELL IS A TOWN JUSTICE IS NOT DISQUALIFYING; ELECTION FRAUD MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, LACKING HERE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined Ugell, a town justice, should not have been disqualified as a candidate for town supervisor. The fact that Ugell is a town justice was not disqualifying. There was no clear and convincing evidence of election fraud:

The petitioners presented no basis to disqualify Ugell under Election Law § 6-122. The fact that Ugell is subject to the Rules Governing Judicial Conduct (22 NYCRR) part 100 as a Town Justice does not disqualify him from running for the office of Town Supervisor … .

“The proper evidentiary standard for proving fraud in an Election Law proceeding is clear and convincing evidence” … . “[A]s a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud” … . “The inclusion of a candidate’s name on a designating petition, without his or her consent, may constitute fraud”… . Here, in light of the conflicting and, in part, incredible testimony, the Supreme Court erred in determining that the petitioners established, by clear and convincing evidence, fraud so as to warrant invalidating the designating petition … . Moreover, the petitioners failed to establish, by clear and convincing evidence, “actual deception of the voters or members of the party involved” … . Matter of King v Ugell, 2023 NY Slip Op 02601, Second Dept 5-11-23

Practice Point: The fact that Ugell was a town justice did not disqualify him from running for town supervisor. Election fraud must be proven by clear and convincing evidence, lacking here.

 

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