Transcript
To comm@ncethestatutorytlmeperiodforappeals
as of rig hi (CPLR 5513[al), you are advised l(l serve
a copy Oflhis order. with notice of entry, upon all parties
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------,------------------------------------------------------------------)(
In the Matter of the Application
of
DANIEL F. DONOVAN, JR., Chairman of the Nassau County
Conservative Party Committee,
-andH. ARTHUR ANDERSON III, DAVID L. ZATLIN, JOHN M.
HANNA, JEFFREY L. FARRELL, EDWARD F. GRIFFIN JR.,
JAMES J. COLLINS JR., PETER .1. CANIGIANI, ELIZABETH
TOWERS, MICHELLE IMBROTO, ELLA STEVENS,
PATRICIA KARAMSINGH, RICHARD HAYES, PAULINA
MONTALVO, DIANE OSTENDORF, FRANK A. FORTIS,
MATTHEW J. KEIRNAN, Objectors Aggrieved.
•
Petitioners,
DECISION
& ORDER
Index No. 15-8449
-againstSYLVIA CABANA, EVE LUPENKO, MICHAEL ZANGARI,
TAMMIE S. WILLIAMS, MICHAEL REID, ANTHONY
ERAMO, KAREN ADAMO, LEONICO TORRES, N. SCOTT
BANKS, TAMMY SCHWITZ ROBBINS, MADELINE
SING AS, LINDA KELLY MEJIAS, AYESHA K. BRANTLEY,
MICHAEL D. SIFF, DELIA DERIGGI WHITTON, EILEEN M.
NAPOLITANO, MATTHEW MALIN, JUDITH A. JACOBS,
DEAN EVAN HART, CLAUDIA BORECKY, SIELA BYNOE,
KEITH S. LEBOWITZ, LAURA CURRAN, JAMES E.
PAYMAR, TOVA SUZANNE PLAUT, CARL GERRATO,
MALLORY NATHAN, ANGELA G. IANNACCI, PETER
ZUCKERMAN, ANNA KAPLAN, EMILY BEYS, ROBERT
K. FREIER, JOSEPH ANTHONY STUFANO, SR., CHARLES
BERMAN, RITA KESTENBAUM, JUDI BOSWORTH, JOHN
MANGELLI, MILAGROS VICENTE, DINO G. AMOROSO,
Purported candidate(s) of the WOMEN'S EQUALITY PARTY
for various public offices located within Nassau County,
.
-andDAVID J. GUGERTY AND LOUIS G. SAVINETTI,
Commissioners constituting the
NASSAU COUNTY BOARD OF ELECTIONS,
-andPETER KOSINSKI, DOUGLAS KELLNER, ANDREW
SPANO AND GREGORY PETERSON, Commissioners
constituting the NEW YORK STATE BOARD OF ELECTIONS
-andThe purported WOMEN'S EQUALITY PARTY, and its
purported committees and BARBARA FIALA/RACHEL
GOLD, its purPorted chair/acting chair,
-andThe purported WOMEN'S EQUALITY PARTY, and its
purported committees and MARY JO TAMBURLIN,
its purported chair/acting chair,
-andThe purported WOMEN'S EQUALITY PARTY, and its
purported committees and CECILIA TCKACZYK,
its purported chair/acting chair,
Respondents.
For an Order Pursuant to the Election Law, and Article 78
of the CPLR Declaring Invalid the Respondent Candidates'
Purported Women's Equality Party Nominations, and to
Restrain the said Board of Elections from Placing the Name of.
said Candidates Upon the Official Ballots of the General Election.
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WOOD,J.
The following papers numbered 1-45 were considered by the court on petitioners' application
brought by order to show cause and Women's Equality Party/Gold/Fiala Respondents' motion to
dismiss:
Petitioners' Order to Show Cause, Verified Petition, Affidavit of Service, Emergency
1-18
Affirmation, Affirmation in Opposition with Exhibits A-L, Memorandum of Law in
2
Opposition to Dismiss, Federal Express printout.
Respondents WEP/Gold/Fiala's Notice of Motion to Dismiss. Russo's Affirmation
19-39
with Exhibits A-I, Russo's Supplemental Affirmation with E~hibits A-H, Nassau Courity'
Certificate of Nomination.
Respondent Candidates' Verified Answer with Exhibit A, Corbett's Affirmation,
40-45
Williams' Affidavit with Exhibits A-B.
The instant special proceeding arises from the formationof
eWEP"),
the Women's Equality Party
which obtained its status as a party under Election Law SI-104(3), after Governor
Andrew M. Cuomo ("Cuomo") received in excess of 50,000 votes on its line in the general
election in November 2014.
Certificates of nomination for 39 candidates were filed with the
respondent Nassau County Board of Election by WEP.
Three factions claim to be WEP:
Barabara Fiala and Rachel Gold ("WEP Fiala/Gold"), Mary 10 Tamburlin eWEP Tamburlin")
and Cecilia Tckaczyk ("WEP Tckaczyk").
.filed with the State Board of Election.
I
Four sets of rules and purported officers have been
Multiple other proceedings have been decided, or are
currently being litigated, and some have already been appealed to the various Appellate
Divisions. Petitioners, consisting of the Chairman of the Nassau County Conservative Party and
citizen objectors, claim, inter alia, that the certificates of nomination at issue here are invalid
under Election Law S6-128( 4), because no WEP faction--specifically
the Gold/Fiala, faction that
filed certificates of nomination in Nassau County--has the authorization
of a majority of the
candidates of the party that ran statewide in 2014.
Initially, respondent-candidates
they raise in their verified petition.
claim that the petitioners are limited to the objections that
The court agrees.
The amended verified petition of
petitioners, dated October 6, 2015, has not been considered in this decision and order. However,
I
Gold/Fiala filed 2 sets.
contrary to the view of the respondent-candidates,
the verified petition does sufficiently allege
and apprise them of the primary issue, which is petitioners' contention that the WEP/FialaiGold
respondents failed to properly adopt its rules pursuant to Election Law 96-128(4), by inter alia,
failing to obtain consent ofa majority of the 4 statewide candidates that ran on their line2
Also, respondent candidate Tammie S. Williams has submitted an affidavit that she did
not receive the order to show cause and papers upon which this proceeding is based. The service
provision of the order to show cause signed by Justice Brown on September 22, 2015 permitted
service by several methods, including overnight mail. The petitioners in their affidavit of service
have stated that the service was effectuated via Federal Express overnight mail to all of the
named respondent candidates, of which Williams was the third on the list. Petitioners have also
produced a copy of the Federal Express receipt evidencing delivery to the address given for
Williams on the certificate of nomination3
The court is satisfied that Williams was properly
served in accordance with the service provision of the order to show cause.
Relevant Procedural
History
On July 2, 2015, the New York State Board of Election ("SBOE") received from the
WEP/FialaiGold respondents "Rules of the Women's Equality Party of the State of New York"
. which named Officers of the Interim State Committee to be Barbara Fiala as Chair, Kathy Joy as
Interestingly, respondent candidates argue that because the DeLabio v Allen decision of
September 14,2015 from Niagara County was reversed, that the petitioners cannot challenge the
WEP/Gold/Fiala rules. However, the petitioners subsequently won again at the trial level in
DeLabio on reargument, based on the lack of the jurat on the WEP Gold/Fiala' affidavit filed with
its rules.
. 2
3 The Reply affirmation of petitioners was not considered by the court. However, it arrived at
chambers at the same time that the parties were about to be emailed from chambers directing
petitioners to provide the FedEx mailing receipt. The court's secretary noted the presence of the
FedEx printout, and alerted the court. The court has not read the Reply affirmation, and has
4
Secretary, Rachel Gold as Member of the Executive Committee, and Vice-Chair and Treasurer
were "TBD,,4
Together with the rules, was attached a "Certification
Officers/Members
of Election of Interim
of the Interim State Committee and Adoption of Rules of the Women's
Equality Party of New York State" signed by Andrew M. Cuomo, Governor, notarized on June
25,2015, and also by Kathleen C. Hochul, Lieutenant Governor on June 25, 2015. On July 14,
2015, SBOE received "Rules of the Women's Equality Party of the State of New York" which
named Officers of the Interim State Committee to be Barbara Fiala as Chair, Kathy Joy as
Secretary, Rachel Gold as Treasurer, and a Vice-Chair was "TBD" (presumed to mean "to be
determined"). Together with this second set of rules, was attached a "Certification. of Election of
Interim Officers/Members
of the Interim State Committee and Adoption
of Rules of the
Women's Equality Party of New York State" signed by Andrew M. Cuomo, Governor, notarized
on July 13,2015, and also by Kathleen C. HochuI, Lieutenant Governor, on July 13,2015.
Then, on August 28, 2015 and August 30, 2015, SBOE received two other sets of "Rules
of the New York State Committee of the Women's Equality Party" (from respondents WEP
Tkaczyk and WEp. Tamberlin,
respectively),
neither of which had certification
from any
statewide candidate that ran on the WEP line, of either the election of interim officers or
adoption ofmles.
Litigation ensued in over a dozen counties across New York State.
On September 10,2015, the WEP Fiala/Gold respondents filed certificates of nomination
for all of the respondent candidates herein with SBOE, attaching their second set of rules that
was received by SBOE on July 14, 2015. The same were :fiIed with Nassau County Board of
considered onl y the FedEx printout.
The court presumes this to mean "to be determined".
4
Elections ("NBOE")
on September
14, 2015.
Petitioners
commenced
this proceeding to
invalidate the certificates of nomination by order to show cause on September 22,2015.
Discussion
To decide this matter, this court does not need to compare the multiple WEP factions, nor
to decide who, if anyone is the true torchbearer for the WEP. The outcome of this matter rests
squarely upon whether or not the actions taken by the WEP Fiala/Gold respondents
satisfy the
,
Election Law, specifically 96-128.
Respondents argue initially, that 96-128(3) makes it clear
that no board or officer shall receive for filing any certificate of nomination unless it fulfills "the
above requirements." Therefore, 96-128(1) and (2) must be the subject of examination by the
Board of Elections, but there is no need to look to subsection (4) in the first instance.
The court agrees with this point.
The plain text of the statute, in relevant part, is as
follows:
A certificate of such nominations shall contain:
(a) the name of the party filing the nomination;
(b) the title of the office for which the nominations is made and the name
and residence address of the person so nominated;
(c) the names of the members of the committee, if any, appointed to fill
vacancies in nominations;
(d) a description and representation of the party's emblem;
(e) the name of the committee making the nomination;
(f) a certified copy of the party rules describing the rule-making body
and nomination process; and
(g) an affidavit containing a statement by the presiding officer and
secretary of the committee that they are such officers and the statements
in the certificate are true (Election Law S6-128[1]).
Election Law S6-128(2) states where and when the certificate of nomination is to be filed.
128(3) refers back to 96-128( I) and 96-128(2). Election Law 96-128(4) states:
6
96-
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"If there is any question or conflict relating to the rules or the rulemaking body, rules which a majority of the candidates of such party who
were nominated by petition for offices voted for by all the voters of the
state at the general election at which the independent body became a
party certify were duly adopted by a properly authorized body shall be
deemed to be the rules. The certificate of such candidates describing the
rule-making body shall be controlling. Election LawS6-128(4)
Thus, without a question or conflict, in order to determine the validity of the nominations, the
cOUl1'sanalysis should rest solely upon the actions of the WEP Fiala/Gold respondents, which
the Nassau County Board of Elections (NBOE) would examine pursuant to S6-128(3), to see if
said nominations meet the criteria set forth in Election Law S6-128( I) and (2).
Petitioners argue that the court should apply Election Law S6-128(4), based upon the
filing of competing and conflicting rules by WEP Tkaczyk and WEP Tamberlin.
Petitioners
claim that these filings create a "question or conflict. relating to the rules or the rule-making
body" as contemplated by Election Law S6-128( 4). The respondents argue that this opens the
door to anyone, .whether associated with the original WEP efforts or not, to file rules and
certificates of nomination, effectively allowing them to "hijack" the party.
This court disagrees.
To prevent such a "hijacking" from happening, the Legislature
outlined a simple process that determines which group (if any) can claim control of the party in
S6-128(4). The First Department summarized this process and the statute, stating that S6-128(4)
"recognizes as the only identifiable body of individuals affiliated with a new party its slate of
Statewide candidates and grants to a majority of that body the authority to adopt and certify
rules" (Independence Party of New York v Bd. of Elections in City of New York, 213 AD2d 209
[I st Dept. 1995]). Thus, a majority of the candidates of WEP who were nominated by petition
for offices voted for by all the voters of the State at the eneral election at which WEP was
transformed into a party (November 20] 4) is required to decide who the rightful stewards are to
this independent body that has earned party status under Election Law 91-104(3).
Here, the
Governor, Lieutenant Governor, Comptroller, and Attorney General, all were beneficiaries of
WEP independent nominating petitions in 20]4.
For reasons that were not presented to this
court, only two of four of these statewide candidates signed certifications of the WEP FialaJGold
respondents.
In this case, all four of the candidates happen to be Democrats, and they are split
equally, 2-2. Had two Democrats and two Republicans run on the line, such a stalemate would
certainl: be predictable, and within the Legislature's contemplation.
Reasonable minds might
conclude that the Legislature dominated by the two major parties, felt that a stalemate was an
appropriate outcome, to paralyze and render powerless the nascent party.
In any event,
legislative intent is not the law. The words of the statute that the Legislature passed are the law.
As petitioner's counsel correctly states, two is not a majority of four, which leaves the WEP
FialaJGold respondents on equal footing with the other WEP factions--unabie
to establish that
they represent WEP.
Notably, even if this court were to embrace the judicial yoga-like contortions that would
allow it to discount the WEP Tkaczyk and WEP Tamberlin filings and rule.s as "cynical" and
"bogus" attempts to invade the party as respondents view them, and not apply Election Law 96128(4), the certificates of nomination are invalid for a second reason. As recited above, the WEP
FialaJGold respondents filed two different sets of rules all by themselves.
This, in and of itself,
creates a "question or conflict relating to the rules or the rule-making body" as outlined in 96128(4). Both sets of rules are labeled exactly the same. The second set of rules is not noted as
"Amended" nor does either set have an actual date (other than the stamp from SBOE). At first
8
glance, the differences between them appear to be a simple matter of whether Rachel Gold is a
Member of the Executive Committee or.the Treasurer. However, there is also an extraordinarily
instructive change that was made to Article II, paragraph 2 ("Officers").
The first set of rules
adopted and certified on June 25, 2015 by Cuomo and Hochul, states specifically:
a. The Officers of the Interim State Committee shall be a State Chair,
Vice Chair, Secretary, and Treasurer. Consistent with New Yark
State Election Law. 96-128, these initial officers of the Interim State
Committee shall be elected by majority vote of the state wide
candidates of the WEP at the General Election during which the
WEP obtained "party status," and identified on Exhibit A of these
Rules.
Therefore, the very rules themselves, filed by the WEP/Gold/Fiala respondents, mandate ("shall
be") that the Interim State Committee mUst consist of four specifically enumerated officers. The
WEP Fiala/Gold respondents named three officers, leaving two of the mandated offices empty.
Next, the rules received July 2, 2015 from WEP Fiala/Gold very clearly state that the Interim
State Committee must be elected using the method stated in Election Law 96-128(4) that this
court has agreed otherwise would not have applied in the absence of the filings by WEP Tkaczyk
and WEP Tamberlin. However, given the fact that the party rules filed on July 2, 2015 require a
standard above that of the Election Law, that standard must be applied, as the duly adopted rules
of a political party should be given effect (Master v Pohanka, 10 NY3d 620 [2008]; McAuliffe v
Senn, 97 AD2d 745 [2d Dept 1983]).
Apparently, the WEP Fiala/Gold respondents recognized this problem rather quickly
thereafter, after failing to obtain the signature on certifications of rules from either of the other
two statewide candidates from the 2014 election that had the WEP line. A second set of rules
was filed with SBOE on July 14,2015, which was completely different from the initial July 2,
2015 rules with respect to the election of officers (Article II, section 2),
The reference to
Election Law 96-128 was deleted, and reference to "Article 11,section I of these Rules" was also
deleted.
The conclusion is inescapable.
The WEP Fiala/Gold respondents
created rules, and
Cuomo and Hochul certified their agreement with them on June 25, 2015. If Election Law 96128(4) on its own--and in the absence of a competing set of rules or rule-making body--requires
a majority of four-as
discussed, this court does not believe it does (supra)--then those two
certifications are not enough.
Or, if this court is correct, and Election Law 96-128(4) does not
apply in the first instance, then the WEP Fiala/Gold rules themselves require a majority of four,
and likewise, the two certifications are not enough, and by their own rules, the WEP Fiala/Gold
rules are invalid.
The next problem is that both sets of WEP Fiala/Gold rules have an identical Article II,
section I, which sets forth very specific requirements for the interim committee to be formed at
the first organizational meeting of the WEP:
a.
Until a State committee is duly elected by the enrolled voters
of WEP in accordance with Article 2 of the New York State
Election Law and these Rules, an Interim Committee consisting of
at least thirteen (13) individuals, but no more than fifteen (15)
individuals, shall exercise all of the powers of the State
Committee as set forth herein and by applicable law (Emphasis
added).
.
Even if the court were to get past Election Law 96-128, and the July 2, 2015 rules' requirement
for applying the Election Law 96-128 majority of statewide candidates, the organization meeting
and Interim State Committee failed to abide by either set of rules offered by the WEP/Gold/Fiala
10
respondents.
The Interim Committee certified on July 23, 2015 by Barbara Gold and Kathleen
Joy consists of only ten (10) interim officers. Just as two is not a majority of four, neither is ten
equal to thirteen. Forthis additional reason, the nominations by the WEP Fiala/Gold respondents
are invalid, null, and void.
In conclusion, based upon the facts presented, and in accordance with Election Law 96128, the WEP Fiala/Gold respondents are unable to meet the minimum threshold that they need
to perform any operations of the Women's Equality Party, which would include the issuance of
certificates of nomination.
The WEP Fiala/Gold respondents have not met the requirements of
Election Law 96-128(4), which applies to them: based upon the filings of the WEP Tamburlin,
and WEP Tckaczyk rules; based upon multiple WEP Fiala/Gold rules filings; and based upon
the rules filed with SBOE on July 2,2015.
The WEP Fiala/Gold respondents also failed in
multiple other ways to abide by the rules that they proffer as the basis for their actions. The
Certificate of Nomination for the respondent candidates herein is invalid, null, and void, as it was
issued by an interim committee consisting of less than the number of members required by the
party rules. Election Law 96-128(1) clearly states that "nominations shall be made by the rules
of such party." The nominations at issue here were not made in accordance with the rules of
WEP Fiala/Gold even ifthey were found to be in effect.
In light of the decision herein, this court has not reached the question of whether. WEP
Fiala/Gold respondents' certificate of nomination is invalid pursuant to 96-1 28(1)(g), because the
issue is deemed moot.
Accordingly, for the stated reasons, it is hereby
ORDERED, that the petition is granted; and it is further
ORDERED, that the Nassau County Board of Elections and/or State Board of Elections is
directed, restrained, and enjoined from placing the names of the respondent candidates upon the
official ballots of the November, 2015 General Election as candidates of the Women's Equality
Party; and it is further
ORDERED, that petitioners are directed to serve a copy of this Decision and Order, with
notice of entry, upon the attorneys for all parties within 10 days of such entry and file proof of
service within five (5) days of service; and it is further
ORDERED, that all other applications and/or branches of relief not herein decided are
denied and/or deemed moot as a result of this decision.
This constitutes the Decision and Order of the court.
Dated:
October 16,2015
White Plains, New York
HO '.CHARLES D. WOOD
Justice of the Supreme Court
To:
Bee Ready Fishbein Hatter & Donovan, LLP
John Ciampo]i, Of Counsel
Stephen L. Martir, Esq.
Attorneys for Petitioners
] 70 Old Country Road, Ste 200
Mineola, NY ] 150]
GreenbergTraurig, LLP
Steven C. Russo, Esq.
Counsel for Respondents WEP, GoldlFialaiJoy
200 Park Ave
New York, NY 10166
•
]2
Harris Beach, PLLC
Keith M. Corbett, Esq.
Attorneys for Respondent Candidates
333 Earle Ovington Blvd., Ste 901
Uniondale, NY 11553
Office of the Nassau County Attorney,
Alpa Sanghvi, Esq.
Counsel for Nassau County Board of Elections
One West Street
Mineola, NY I 150 J
Kimberly Galvin, Esq.
-Counsel for NYS Board of Elections
40 N. Pearl St., Ste 5
Albany, New York 12207
