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Registered Voter Could Not Intervene In Suit to Determine Constitutionality of Local Term-Limit Law

The Second Department affirmed Supreme Court’s denial of a “registered voter’s” [Nichol’s] motion to intervene in an action to determine the constitutionality of a local law concerning term limits for public offices.  The court explained:

Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, “the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (CPLR 1012[a][2]…). Additionally, the court, in its discretion, may permit a person to intervene, inter alia, “when the person’s claim or defense and the main action have a common question of law or fact” (CPLR 1013). ” However, it has been held under liberal rules of construction that whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013 is of little practical significance [and that] intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings'” … .

Here, contrary to Nichols’s contention, the Supreme Court properly denied his motion for leave to intervene in the action as a defendant. Although Nichols, who describes himself as a “registered voter in the County of Suffolk and an active supporter of [his] constitutional right to pass and enforce term limit legislation,” may indeed be interested in defending the local law in question, he failed to demonstrate that he has a “real and substantial interest” in the action … . Moreover, as the Supreme Court appropriately noted, he failed to show that any interest he did have would not be adequately represented by the defendant … . Accordingly, the court properly denied Nichols’s motion for leave to intervene. Spota v County of Suffolk, 2013 NY Slip Op 06558, 2nd Dept 10-9-13

 

14-Day Election Law Statute of Limitations, Not Article 78 Statute of Limitations, Applied

The Second Department determined that a putative Article 78 proceeding seeking to exclude candidates from the ballot based upon alleged violations of the Election Law was governed by the Election Law, not the Article 78, statute of limitations:

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, as supplemented by the general provisions of Election Law § 1-106. Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law § 16-102(2) … . Since it is undisputed that this proceeding was not commenced within 14 days after the last day to file the designating and opportunity-to-ballot petitions at issue, as required by Election Law § 16-102(2), the Supreme Court properly dismissed the proceeding as untimely.  Matter of Ciotti v Westchester County Bd of Elections, 2013 NY Slip Op 06000, 2nd Dept 9-25-13

 

Failure to Check Box on Cover Sheet Fatal to Designating Petitions

The Second Department affirmed Supreme Court’s determination that the designating petitions were properly rejected because the box on the cover sheet indicating that the required number of signatures were included was not checked:

The Supreme Court properly denied the petition and dismissed the proceeding. Although the provisions of the Election Law “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” (Election Law § 6-134[10]; see 9 NYCRR 6215.6[a]), this matter does not involve a mere technical defect subject to cure pursuant to Election Law § 6-134(2) … . Rather, the express terms of the cover sheet drafted and submitted by the petitioners directed the Board to disregard the designating petitions as void and not accept them for filing. To hold that the designating petitions were nonetheless filed would undermine procedural safeguards against both fraud and confusion, as election officials and interested parties could not have understood the designating petitions actually to have been filed (cf. Election Law § 6-134[10]; 9 NYCRR 6215.1, 6215.6…).  Matter of Balberg v Board of Elections in the City of NY, 2013 NY Slip Op 05897, 2nd Dept, 9-18-13

 

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County Law Setting Term Limits for District Attorney Preempted by State Law

The Court of Appeals affirmed the Appellate Division’s ruling that the county law limiting the terms of the district attorney is preempted by state law:

The office of district attorney is plainly subject to comprehensive regulation by state law, leaving the counties without authority to legislate in that respect. In this light, we view the limitation on the length of time a district attorney can hold office to be an improper imposition of an additional qualification for the position … .

Permitting county legislators to impose term limits on the office of district attorney would have the potential to impair the independence of that office because it would empower a local legislative body to effectively end the tenure of an incumbent district attorney whose investigatory or prosecutorial actions were unpopular or contrary to the interests of county legislators. The state has a fundamental and overriding interest in ensuring the integrity and independence of the office of district attorney. Matter of Hoerger v Spota, 237, CtApp 8-22-13

 

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Local Law Purporting to Limit Term of County District Attorney Preempted by New York Constitution and State Law

The Second Department determined that the local law which limited the term of the county district attorney to 12 years was preempted by the New York Constitution and state law, thereby allowing the sitting district attorney (who had served for 12 years) to run for another term.  The court reasoned:

…[T]he County’s attempt to place a term limit on the office of District Attorney is impermissible. Since the office of District Attorney is not a local office falling within the ambit of NY Const, article IX, § 2(c)(1) or Municipal Home Rule Law § 10 (1)(ii)(a), the County had no authority to place restrictions on the District Attorney’s terms of office. Further, even if the District Attorney is a local office falling within NY Const, article IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a), the New York Constitution and state law, together, so expansively and comprehensively regulate the office, that a county government’s ability to place restrictions on a District Attorney’s terms of office has been preempted. *  *  *

Pursuant to the maxim of statutory construction “expressio unius est exclusio alterius,” “where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Here, in light of the fact that the New York Constitution and state law speak to the duration and term of office of the District Attorney, there is an irrefutable inference that the imposition of any limit on the duration of that office was intended to be omitted or excluded (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Indeed, regarding County Court judges, the New York Constitution provides for a 10-year term (see NY Const, art VI, § 10[b]) and a maximum duration to age 70 (see NY Const, art VI, § 25[b]). That the Constitution imposed a durational limit on County Court judges, but not on District Attorneys, who are also “constitutional officers,” indicates that the omission was intentional and that it was intended that there be no durational limit on District Attorneys. Matter of Hoerger v Spota, 2013 NY slip Op 05661, 2nd Dept 8-16-13

 

Candidate’s Failure to File Certificate of Declination Re: His Accepted Candidacy for Town Councilman Precluded His Running for County Legislator

The Fourth Department, over a substantial dissent, reversed Supreme Court and determined a candidate (Irish) for town council was disqualified from running for county legislator.  Irish was first designated a candidate for town council but later was designated a candidate for the county legislature when a vacancy opened up. No certificate of declination of for the town council position was filed by Irish. The Fourth Department explained its role in overseeing election matters and the appropriate review under Article 78.  The court wrote:

It is firmly settled that we “cannot interfere unless there is no rational basis for [respondent’s] exercise of discretion or the action complained of is arbitrary and capricious” …and, here, we conclude that respondent had a rational basis for voting to certify a ballot naming Irish as a candidate for Town Councilman.  We note, first, that the failure of Irish to file a declination of the designation as a candidate for Town Councilman within the time prescribed by Election Law § 6-158 (2), is a “fatal defect” (Election Law § 1-106 [2]..,.).  Thus, his name must remain on the ballot as a candidate for that position … . Second, contrary to petitioner’s contention and the view of our dissenting colleague, we conclude that Irish was not disqualified from the designation for Town Councilman by virtue of his subsequent designation for County Legislator.  Indeed, “[a] candidate who ‘seeks to disqualify himself or herself . . . must present a legal basis for doing so’ ” … and Irish has presented no such legal basis here.  Moreover, petitioner has presented no authority for his position that the subsequent designation of Irish as a candidate for County Legislator disqualified him from being designated as a candidate for Town Councilman.  Rather, we conclude that, based on the designation of Irish as a candidate for Town Councilman, he was ineligible to be designated by the Committee as a candidate for County Legislator (see § 6-122; see generally County Law § 411).  We agree with the [2nd] Department’s conclusion … that, “[d]espite the unique circumstances of this case, ‘the judiciary is foreclosed from fashioning any exceptions to th[at] requirement, however reasonable they might appear’ ” … .  We conclude that there was a rational basis for respondent’s refusal to certify the ballot naming Irish as a candidate for County Legislator, and that such action was not arbitrary and capricious … . Matter of Ward v Mohr, 821, 4th Dept 8-16-13

 

Rules Prohibited Interim County Organization of Erie County Independence Party from Authorizing the Designation of Candidates

The Fourth Department determined the applicable rules stripped the power to authorize the designation of candidates from the Interim County Organization (ICO) of the Erie County Independence Party:

Election Law § 6-120 permits a county committee to exercise the powers of nomination and designation “unless the rules of the party provide for another committee” (§ 6-120 [3]…).  Here, inasmuch as the Executive Committee is vested “with the authority to issue authorizations in Erie County,” we agree …that the ICO is “thereby stripp[ed] .. . of that authority”… .  Matter of NYS Committee of the Indepence Party v Mohr, 822, 4th Dept 8-15-13

 

Conservative Party’s Executive Committee Had Authority to Designate Candidates for County Executive and County Clerk in Chautauqua County

The Fourth Department rejected the argument that the Conservative Party’s Executive Committee did not have the authority to designate candidates for county executive and county clerk in Chautauqua County:

It is undisputed that, pursuant to the Election Law, the County Committee is the default “party committee” empowered to issue … certificates for the county offices at issue (Election Law § 6-120 [3]…) .  Petitioner, however, contends that the rules and regulations of the County Committee of the Conservative Party (County Committee rules) did not effectively delegate that authority to the Executive Committee and thus that the Executive Committee lacked the power to issue the …certificates.  We reject that contention and conclude that, under these circumstances, the County Committee rules delegated to the Executive Committee the power to authorize the designation of the Unenrolled Candidates as candidates for the relevant county offices in the upcoming Conservative Party primary election… . Matter of Bankoski v Green, 820, 4th Dept 8-15-13

 

Misspellings Did Not Render Signatures Invalid

The Third Department affirmed Supreme Court’s ruling that misspellings in the petition did not create confusion about the party and person referred to and, therefore, the relevant signatures were valid:

…[T]he term “Democratic” appears on various sheets of the petition as “Demoratic,” “Demotatic” and “Demacatic.”  These minor misspellings, however, would not tend to confuse the signatories as to the political party involved and nothing in the record indicates an intent to do so … .  Similarly, although petitioner’s last name is spelled on one sheet of the petition as “Mannaurino” and on another as “Mannano,” there has been no showing of any intention to mislead or confuse, nor is there any evidence that the inaccuracy would or did tend to mislead signatories as to the identity of the candidate… .  Matter of Mannarino v Goodbee, 517215, 3rd Dept 8-15-13

 

Opportunity to Ballot Should Not Have Been Allowed—Criteria Explained

The Third Department reversed Supreme Court’s granting of the opportunity to ballot where the designating petition did not have the required number of valid signatures and there was no evidence of the reason(s) some of the signatures were deemed invalid (no hearing was held).  The Third Department explained the procedure for determining whether the opportunity to ballot should be granted:

“The ‘opportunity to ballot’ remedy . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office”… .  The case law makes clear, however, that this discretionary remedy …”was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law” … .  Accordingly, a court should grant an opportunity to ballot “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” ….  Such a determination, in turn, typically occurs following a hearing, at which the specific reasons for invalidating the affected signatures may be established … .  Notably, a challenge directed to an individual’s eligibility to sign a candidate’s designating petition in th e first instance implicates a substantive – as opposed to technical – defect … .  Matter of Roberts v Work…, 517208, 3rd Dept 8-15-13

 

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