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IN RE: the Application of George SCARINGE & Michelle Dipiazza, Citizen Objectors Aggrieved, Petitioners, v. David GREEN and Jessica Mahar, candidates, and Albany County Board of Elections, Respondents.
Petitioners George Scaringe and Michelle DiPiazza, suing as citizen-objectors, bring this special proceeding pursuant to Election Law § 16-102, seeking an order invalidating petitions filed with respondent Albany County Board of Elections (“BOE”) purporting to designate respondent David Green as a candidate of the Democratic Party, Working Families Party and Conservative Party for the office of Town Justice of the Town of Colonie (“Town Justice”) at the June 22, 2021 primary election (“Primary Election”). Petitioners also seek to invalidate the designation of respondent Jessica Mahar, who was substituted as a candidate following Green's declination of the Democratic Party designation to the office of Town Councilman.
Respondents Green and Mahar oppose the Verified Petition (see NYSCEF Doc No. 1 [“Petition”]) through separate verified answers (see NYSCEF Doc Nos. 6 [“Green Answer”], 9 [“Mahar Answer”]). The proceeding was brought on by order to show cause (“OTSC”) dated April 7, 2020 (Lynch, J.),1 which made the Petition returnable on April 16, 2021.
The BOE responded to the OTSC by producing the pertinent election records (see NYSCEF Doc Nos. 13-19). The two commissioners of the BOE also appeared, with the Republican commissioner, Rachel Bledi, serving an answer in support of the relief sought by petitioners (see NYSCEF Doc No. 12), and the Democratic commissioner, Kathleen A. Donovan, serving an answer in opposition to such relief (see NYSCEF Doc No. 20).
Remote oral argument was held on the return of the Petition. The parties agreed that the issues raised by the Petition could be decided based on the election records produced by the BOE, together with a small number of stipulated facts. A Stipulation of Facts, signed by or on behalf of all counsel, was filed on April 20, 2021 (see NYSCEF Doc No. 23 [“Stipulation”]).
David Green was a Town Councilman prior to the events giving rise to this proceeding. He intended to run for re-election, and, in that connection, his name appeared on designating petitions circulated on behalf of a slate of eight candidates seeking the Democratic Party nomination to various local offices (see NYSCEF Doc No. 17).
On March 4, 2021, there was an unexpected vacancy in the office of Town Justice, and on March 11, 2021, the Town Board appointed Green to fill the interim vacancy, effective April 12, 2021 (see Petition, ¶ 20; NYSCEF Doc No. 21, Ex. A). At that point, Green began circulating designating petitions for the office of Town Justice (see Petition, ¶ 24) with the intention of resigning the office of Town Councilman and declining designation to that office.
Petitions then were filed with the BOE purporting to designate Green as a candidate for two different public offices. One set of petitions, filed on March 24, 2021, designated Green as a candidate of the Democratic Party for the office of Town Councilman as part of an eight-candidate slate (see id., ¶ 6; NYSCEF Doc No. 17). The other set of petitions, filed on March 24 and 25, 2021, designated Green as a candidate of the Democratic Party, Working Families Party and Conservative Party for Town Justice (see Petition, ¶ 5; NYSCEF Doc Nos. 16, 18-19).
On March 25, 2021, the Town Board voted to accelerate the effective date of Green's interim appointment (see NYSCEF Doc No. 21, Ex. B). After the amendment was passed, Green resigned the office of Town Councilman and took the judicial oath of office (see Stipulation, ¶¶ 5, 7).
Green declined the designation to the office of Town Councilman on March 28, 2021, and the Committee to Fill Vacancies named on the petitions issued a certificate on April 1, 2021 substituting Jessica Mahar in Green's place (see id., ¶¶ 3-4).
The Petition alleges that the offices of Town Justice and Town Councilman are incompatible (see Petition, ¶¶ 9-12) and, as a matter of law, “circulating and filing petitions for incompatible offices results in the invalidation of both petitions” (id., ¶ 15). Petitioners therefore contend that Green acted contrary to law in collecting signatures on petitions designating him for Town Justice while knowing that petitions designating him for Town Councilman still were being circulated (see id., ¶ 19). “[Green] did nothing to prevent petitions naming him for [Town Councilman] from being circulated and filed” (id., ¶ 24).
Petitioners argue that, under the Appellate Division, Second Department's decision in (Matter of Lawrence v. Spelman, 264 A.D.2d 455, 694 N.Y.S.2d 143 [2d Dept. 1999], lv denied 93 N.Y.2d 813, 695 N.Y.S.2d 743, 717 N.E.2d 1080 ), Green's name must be removed from the Primary Election ballot. Petitioners also rely upon Matter of Burns v. Wiltse, 303 N.Y. 319, 102 N.E.2d 569 (1953) for the proposition that both sets of designating petitions, and the resulting substitution of Mahar, are invalid (see Petition, ¶¶ 29-30).
Green filed a Verified Answer that denies the pertinent allegations of the Petition and alleges that the Petition fails to state a claim for relief (see Green Answer, ¶¶ 1-6).2
Mahar's Answer similarly denies the pertinent allegations of the Petition and raises several objections in point of law. Mahar asserts that she is not a proper party to this proceeding, because petitioners sue as citizen-objectors (see Petition, ¶ 2), and they did not object to her certificate of substitution (see Mahar Answer, ¶ 7). Mahar further alleges that there is no incompatibility between the petitions designating Green as a candidate for Town Justice and Town Councilman, because Green timely declined designation to the latter office due to the unanticipated judicial vacancy (see id., ¶¶ 11-12).
Rachel Bledi, the Republican Commissioner of the BOE, served an answer referring to her vote on April 9, 2021 to sustain the specification of objections interposed by petitioners “on the basis that competing petitions were filed for two public offices” (NYSCEF Doc No. 12, ¶¶ 2-3 & Ex. A). Her Democratic counterparty, Kathleen Donovan, who voted to overrule petitioners’ objections, served an answer denying the pertinent allegations of the Petition (see NYSCEF Doc No. 20).
In Burns, the Court of Appeals held that a candidate who had been nominated to run for District Attorney could not be nominated for County Judge (see 303 N.Y. at 323, 102 N.E.2d 569). The Court of Appeals explained that a successive nomination where the candidate was ineligible to hold both offices would disenfranchise voters (see id. at 325, 102 N.E.2d 569). Such an election “would be illusory and sham if not an actual fraud upon the electorate and should not be permitted” (id. at 326, 102 N.E.2d 569).
The Court of Appeals confronted a similar issue in Matter of Lutfy v. Gangemi, where the respondent-candidates sought to appear on the primary election ballot in multiple election districts when they knew that each of the candidates could hold office in only one district (see 35 N.Y.2d 179, 359 N.Y.S.2d 273, 316 N.E.2d 710 , revg 45 A.D.2d 939, 359 N.Y.S.2d 319 [2d Dept. 1974] [Shapiro, Benjamin, JJ., dissenting]). “[A]bsent acceptable excuse or justification, the voters who signed the [designating] petitions must be assumed to have been misled as to the candidates’ intentions to serve as their representatives if designated and subsequently elected at the primary” (id. at 182, 359 N.Y.S.2d 273, 316 N.E.2d 710). Overruling lower court precedent that allowed candidates to decline all but one of the incompatible designations, the Court of Appeals held that “the petitions must be considered to have been permeated with the defect intentionally introduced into them by the circulators and those candidates who participated in the circulation” (id.).
Petitioners argue that this case is controlled by Burns and the Second Department's 1999 decision in Lawrence. In Lawrence, two sets of designating petitions were challenged: one designating the respondent as a candidate in a primary election for party position, and the other designating her as a candidate for judicial office (see 264 A.D.2d at 455-456, 694 N.Y.S.2d 143). While conceding that the two offices were incompatible, the respondent-candidate argued that she should be permitted to run for both offices and serve in the party position unless and until it became necessary for her to resign in favor of a judicial role (see id. at 456, 694 N.Y.S.2d 143).
The Second Department rejected the respondent-candidate's arguments in Lawrence, and ruled that she was precluded from appearing on the primary election ballot for either office:
It is well settled that one may not simultaneously run for two public offices where one would be precluded from holding both offices at the same time (see, Matter of Burns v. Wiltse, 303 N.Y. 319 [102 N.E.2d 569]; ․ Matter of Lufty [Lutfy] [sic] v. Gangemi, 35 N.Y.2d 179 [359 N.Y.S.2d 273, 316 N.E.2d 710]). Such a prohibition allows electors to “know that, when the choice is made and legally declared, the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will ․ from becoming effective” (Matter of Burns ․). An election involving the situation presented here, “would be illusory and sham if not an actual fraud upon the electorate and should not be permitted” (Matter of Burns ․).
The fact that the appellant could resign from her [party] position ․ does not mitigate the policy concerns specified by the Court of Appeals. It is for this reason that the appellant's name should be stricken from the primary ballots as a candidate for public office of District Court Judge and as a candidate for the party office of Member of the County Committee (id. at 456, 694 N.Y.S.2d 143).
However, in its 2005 decision in (Matter of Phillips v. Suffolk County Bd. of Elections, 21 A.D.3d 509, 800 N.Y.S.2d 225 [2d Dept. 2005], lv denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 ), the Second Department articulated and applied an important limitation on the doctrine of incompatible candidacies recognized by the Court of Appeals in Lutfy.
The candidate in Phillips was an incumbent local legislator who circulated designating petitions for re-election (see id. at 510, 800 N.Y.S.2d 225). While signatures were being collected, the office of Member of the Assembly became vacant, and the candidate began circulating designating petitions for that office (see id.). Both sets of designating petitions were filed simultaneously (see id.).
The Phillips Court began its analysis by quoting Lawrence for the proposition “that one may not simultaneously run for two public offices where one would be precluded from holding both offices at the same time” (id., quoting Lawrence, 264 A.D.2d at 456, 694 N.Y.S.2d 143). Nonetheless, the Second Department limited application of that rule to situations where the candidate lacks an “acceptable excuse or justification” for pursuing multiple offices (id., citing Lutfy, 35 N.Y.2d at 182, 359 N.Y.S.2d 273, 316 N.E.2d 710).
Distinguishing the facts of Lutfy, where there was no acceptable excuse or justification for the “multiplicity of inconsistent candidacies,” thus giving rise to an inference of fraudulent intent (35 N.Y.2d at 182, 359 N.Y.S.2d 273, 316 N.E.2d 710), the Second Department ruled in Phillips that the candidate's “decision to run for the Assembly seat, and the subsequent overlap in designating petitions, occurred as a result of the unexpected vacancy, not as a result of fraud” (21 A.D.3d at 510, 800 N.Y.S.2d 225). “Also, given the late date on which the vacancy was certified, the parties had little time to circulate designating petitions for a new candidate for Suffolk County Legislator and voters might have been disenfranchised if [the candidate] was required to stop circulating the designating petitions for that office” (id. at 510-511, 800 N.Y.S.2d 225, citing Matter of Farbstein v. Suchman, 26 N.Y.2d 564, 312 N.Y.S.2d 196, 260 N.E.2d 817 ).
In its 2018 decision in Matter of D'Angelo v. Maloney, the Third Department further restricted application of the doctrine of incompatible candidacies (see 164 A.D.3d 1078, 84 N.Y.S.3d 276 , lv denied 31 N.Y.3d 914, 2018 WL 4102363 ). That case concerned a candidate nominated for U.S. Congress who later filed petitions seeking to run in a primary election for the office of Attorney General (see id. at 1078-1079, 84 N.Y.S.3d 276). In allowing the successive candidacies to go forward, the Court reasoned that the respondent-candidate could not be deemed to be running for incompatible offices unless and until he received the party nomination for Attorney General, at which point he could decline the Congressional nomination (see id. at 1080, 84 N.Y.S.3d 276). In the Third Department's view, “one becomes a designated ‘candidate,’ as opposed to a designee, upon being nominated and filing his or her certificate of nomination to run in an election for public office” (id. at n. 2).
Even assuming that petitioners’ claims are not entirely foreclosed by the definition of the term “candidate” adopted by the Third Department in D'Angelo,3 the Court concludes that this case is distinguishable from the Second Department's decision in Lawrence and instead is controlled by Phillips.
As in Phillips, Green's “decision to run for the [Town Justice] seat, and the subsequent overlap in circulating designating petitions, occurred as a result of the unexpected vacancy, not as a result of fraud” (21 A.D.3d at 510, 800 N.Y.S.2d 225). “Also, given the late date on which [Green was appointed as the interim Town Justice], the parties had little time to circulate designating petitions for a new candidate for [Town Councilman] and voters might have been disenfranchised if [Green] was required to stop circulating the designating petitions for that office” (id. at 510-511, 800 N.Y.S.2d 225).4 In contrast, the candidate in Lawrence offered no excuse or justification for her dual candidacies, other than a desire to hold party office until she became a Judge (see 264 A.D.2d at 456, 694 N.Y.S.2d 143; cf. D'Angelo, 164 A.D.3d at 1078-1079, 84 N.Y.S.3d 276 [unexpected resignation of Attorney General following candidate's nomination to Congress]).
Further, the Court is unpersuaded by petitioners’ attempt to distinguish Phillips on the ground that the candidate was not pursuing judicial office, unlike the candidate in Lawrence and respondent Green here. Neither Lawrence, Phillips nor the Court of Appeals authority relied upon by the Second Department attached any special significance to whether one of the incompatible offices was a judicial office; rather, the cases turned on whether the candidates had a legitimate excuse or justification for pursuing incompatible offices (see generally Matter of Lutfy, 35 N.Y.2d at 182, 359 N.Y.S.2d 273, 316 N.E.2d 710).5
Finally, having concluded that Green tendered an acceptable justification for his dual candidacies, the challenge to Mahar's substitution must be rejected. In any event, it is by now well settled that an improper dual candidacy does “not invalidate the underlying designating petitions themselves, but merely disqualifie[s] the named candidate from running on each such petition” (Marsh, 2019 N.Y. Slip Op. 50903(U), *3). “To the extent that the petitions designated committees to fill vacancies, they should not [be] invalidated” (Lawrence, 264 A.D.2d at 456, 694 N.Y.S.2d 143; see also Burns, 303 N.Y. at 323, 102 N.E.2d 569).
Accordingly,6 it is
ORDERED and ADJUDGED that the Petition is denied in all respects, and this proceeding is dismissed.
This constitutes the Decision, Order & Judgment of the Court.
1. The proceeding was reassigned to the undersigned following Justice Lynch's recusal on April 13, 2021 (see NYSCEF Doc No. 11).
2. Green's answer also raises an objection in point of law, alleging that petitioners’ failure to file an affidavit of service deprives the Court of jurisdiction (see Green Answer, ¶ 7). However, petitioners did file an affidavit of service on April 12, 2021 (see NYSCEF Doc No. 7).
3. It is difficult to reconcile the Third Department's cramped reading of the term “candidate” with the appellate precedents discussed previously. In particular, the Court of Appeals’ decision in Lutfy concerned petitions designating a candidate for the primary election ballot (see 35 N.Y.2d at 182, 359 N.Y.S.2d 273, 316 N.E.2d 710 [“the voters who signed the offending petitions must be assumed to have been misled as to the candidates’ intentions to serve as their representatives if designated and subsequently elected at the primary”]). The same is true of the Second Department's decisions in Lawrence and Phillips (see 21 A.D.3d at 510, 800 N.Y.S.2d 225; 264 A.D.2d at 455-456, 694 N.Y.S.2d 143; accord Marsh v. Hale, 63 Misc. 3d 1236(A), 2019 N.Y. Slip Op. 50903(U) *3, 2019 WL 2424526 [Sup. Ct., Cattaraugus County 2019] [“The law in New York State is that a person may not simultaneously circulate a petition and seek election to two different public offices which are incompatible.”], affd on opn below 172 A.D.3d 1943, 99 N.Y.S.3d 728 [4th Dept. 2019]).
4. Review of Supreme Court's decision in Phillips (Sup Ct, Suffolk County, Aug. 4, 2005, Baisley, Jr., J., slip op at 2) shows that certification of the Assembly vacancy occurred at roughly the same stage of the petitioning process as Green's interim judicial appointment here. Moreover, it remains unclear how Green could have caused his name to be removed from the multi-candidate designating petitions without jeopardizing the validity of those petitions as to the other named candidates.
5. As petitioners observe (see NYSCEF Doc No. 22), it is improper for a sitting Judge to be a candidate for any nonjudicial office (see NY Const, art VI, § 20; 22 NYCRR 100.0 [A], 100.5 [B]). However, all public officers, including “every judicial officer of the unified court system,” shall take and file the oath of office before he or she “shall be entitled to enter upon the discharge of any ․ official duties” (Public Officers Law § 10). The oath generally may be taken and filed within thirty days following the appointment to office (see id. § 30 [h]). Thus, Green did not become a sitting Judge until March 25, 2021. And insofar as petitioners complain about Green's conduct during the period between Green taking the oath of judicial office and his March 28, 2021 declination of the Town Councilman designation, the issue is not one that goes to the validity of the designating petitions challenged via this Election Law proceeding.
6. The Court has considered the parties’ remaining arguments and contentions but finds them unavailing or unnecessary to reach given the disposition ordered herein.
Richard M. Platkin, J.
Response sent, thank you
Docket No: 903015-21
Decided: April 21, 2021
Court: Supreme Court, Albany County, New York.
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