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IN RE: the Application of Darlene MACLAY, Petitioner, v. Jay DIPASQUALE, et al., Respondent-Candidates, Erie County Board of Elections, Respondents.
Facts and Procedural History
The Petition before the Court was filed on June 7, 2021 wherein Petitioner, pursuant to Election Law articles 6 and 16, sought to invalidate certain signatures found on the “United for Amherst” independent nominating petitions. The independent nominating petition, which sought to create the “United for Amherst” line that would appear on the general election ballot, purported to designate JAY DIPASQUALE, RAY HERMAN, DAN RIDER and KATHY WEPPNER (hereinafter “Respondent-Candidates”) as candidates of the “United for Amherst” party for the public offices of Town Supervisor, Town Councilman and Town Justice, respectively. In particular, the Petitioner challenged line-by-line signatures that were “hand-printed”, certain petitions that contained “ditto marks”, and other hand-written modifications that were “unexplained and uninitialed.” See Petition, ¶37. (NYSCEF Doc. #1) Further, the Petitioner alleged that the petitions filed were permeated with fraud.
Prior to the commencement of this action, pursuant to Election Law § 6-154, the Petitioner filed general and specific objections with the Erie County Board of Elections (hereinafter “Board of Elections”) challenging the independent nominating petitions. Of the 1,045 signatures contained in the independent nominating petitions, the Petitioner alleged that 835 were invalid signatures. If found to be invalid, this would place the number of valid signatures below the 750 minimum signature requirements. Thereafter, the Board of Elections conducted its administrative review but did not release its results prior to the commencement of this action.
The Respondent-Candidates filed a Verified Answer to the Petition, seeking the dismissal of the Petition. On the initial return date of the Petition, a hearing was scheduled.
A hearing was held on July 27, 2021. Prior to the hearing, both Petitioner and Respondent-Candidates filed motions. Respondent-Candidates filed a motion to dismiss the petition individually against candidate KATHY WEPPNER. In their motion, Respondent-Candidates argued for dismissal as to KATHY WEPPNER as she no longer was a candidate for the public office of Town Justice. The Petitioner opposed the motion and the Court reserved. Petitioner filed a motion to bifurcate the hearing. In her motion, the Petitioner sought to defer a hearing on the issues of fraud. Instead, Petitioner argued “a determination of the line-by-line objections may very well moot the necessity of any hearing on the issue of fraud, underscoring the judicial economies of bifurcating these line-by-line objections.” See Affirmation of Jessica Kulpit, Esq. and Brittany Lee Penberthy, Esq., ¶51. (NYSCEF Doc. #14) The Respondent-Candidates did not object to the motion and the Court granted the motion to bifurcate the hearing, considering only the line-by-objections and not the fraud allegations.
At the hearing, three exhibits were received into evidence. These were:
Petitioners 1:Erie County Board of Elections File
Petitioners 2:Erie County Board of Election Signature Cards
Petitioners 3:Erie County Board of Election Signature Cards (ditto-mark entries)
Only Justin Rooney, an office manager at the Erie County Board of Elections, testified at the hearing. Justin Rooney testified about the process the Board of Elections employs in reviewing line-by-line objections. The first grouping of objections were to the “hand-printed” signatures, of which there were 47. Rooney testified Board of Elections employees review the line-by-line objections, compare them with the registration card on file with the Board of Elections (Exhibit #2), and make a recommendation as to whether the signature is valid or invalid. Of the 47 objections to hand-printed signatures, the employees recommended that all 47 be struck. According to Rooney, the two (2) Commissioners then review the determination of the employees and make their own ruling. If they agree with the employees’ recommendations, the signatures would be struck. According to Rooney, if the Commissioners split in their ruling, the objected signature is restored and presumed valid. Here, the Commissioners agreed with the employees 23 times. As such, 23 of the 47 challenged signatures were struck. Conversely, according to Rooney, the Commissioners issued split rulings on 24 of the challenged hand-printed signatures. As a result, those 24 signatures were restored as valid.
Regarding the “ditto mark” petitions, Petitioner alleged that instead of writing their full address on the petition, the voter instead used “ditto marks” to correspond with a street address that was found elsewhere on the petition. Rooney testified that there were 3 instances where “ditto marks” were found. The Board of Election employees that reviewed the line-by-line objections recommended that the 3 signatures be struck. Upon review, the Commissioners issued a split ruling and the 3 signatures were restored. Rooney offered no other testimony other than his recitation of the line-by-line explanation of each challenged signatures. No other evidence or testimony was received or heard.
Thereafter, oral argument was held on Respondent-Candidates’ motion to dismiss. Respondent-Candidates presented 21 “curative affidavits” that were signed by those who signed the independent nominating petition but hand-printed their signature. In the affidavits, the deponents noted that they did sign the petition on a particular date and why they hand-printed their signature. Respondent-Candidates presented 1 “curative affidavit” for “ditto marked” addresses. In her affidavit, Kathleen Hannon noted that the independent nominating petition indicated her correct and lawful address and requested that her signature “not be struck” and requested that the “Court uphold her First Amendment under the Constitution of the United States protecting my free speech and expression in this form.” See Affidavit of Kathleen B. Hannon, ¶5. (NYSCEF Doc. #20, 23). Also, Respondent-Candidates submitted two (2) curative affidavit for changes that were made to the petition where the witness failed to initial the changes. See Affidavit of Mary Jo Carroll, ¶4; Affidavit of Kathleen Weppner, ¶4. (NYSCEF Doc. #20, 23). Petitioner maintains that that the affidavits submitted by Respondent-Candidates should not be considered not only because they were untimely, but because they contained inadmissible hearsay. Upon the conclusion of the hearing, the Court reserved its decision.
The Court is mindful that the Legislature intended Article 16 of the Election Law to be construed liberally so as to maintain the fairness and integrity of the electoral process. See Election Law § 16-100 ; Matter of Jones v. Gallo, 37 A.D.2d 793, 324 N.Y.S.2d 850 (4th Dept. 1971); Cullinan v. Ahern, 212 A.D.2d 103, 628 N.Y.S.2d 895 (4th Dept. 1995). Here, Petitioner seeks to invalidate signatures and an independent nominating petition based on technical violations of the election law, namely that hand-printed signatures should not be permitted.
Petitioner makes much of the Fourth Department's decision in Toles v. Quintana, 183 A.D.3d 1290, 123 N.Y.S.3d 786 (4th Dept. 2020). As the author of the underlying Toles decision, this Court previously recognized that “it is generally understood that a printed signature should be ruled invalid unless the voter's signature is similarly printed on the voter registration card.” In the Matter of Toles v. Quintana, 2020 NY Misc. LEXIS 15084 (Sup. Crt. Erie County, 2020); citing Matter of Hall v. Heffernan, 185 Misc. 742, 744, 59 N.Y.S.2d 229 (Sup. Ct. Richmond County 1945), aff'd 269 A.D. 953, 59 N.Y.S.2d 271 (2d Dept. 1945), aff'd 295 N.Y. 599, 64 N.E.2d 291 (1945); Matter of Henry v. Trotto, 54 A.D.3d 424, 862 N.Y.S.2d 605 (2d Dept. 2008); Edelstein v. Matuszwski, 2009 NY Misc. LEXIS 4196 (Whelan J., Suffolk County, 2009). However, the Appellate Division's subsequent decision modifying the initial decision is not the panacea Petitioner argues it is. In Toles, the Fourth Department held that Petitioner failed to meet its burden in seeking to invalidate hand-printed signatures. It never invalidated hand-printed signatures. Nevertheless, the broad principle is certainly acknowledged.
Respondent-Candidates offer multiple affidavits of those who printed, rather than signed, their names on the independent nominating petitions. Those affidavits were offered to “cure” whatever defects that were objected to by Petitioner. More specifically, Respondent-Candidates offered the affidavits for the “ ‘limited purpose’ of verifying signatures in these expedited election proceedings.” See Affidavit of Michael Cimasi, Esq., ¶7. (NYSCEF Doc. #22). Petitioner argues that the affidavits should not be considered because they were untimely and cannot be cross-examined. See Affidavit of Jessica Kulpit, Esq. and Brittany Lee Penberthy, Esq., ¶18. (NYSCEF Doc. #23).
It is well settled that trial courts have broad discretion to accept or reject supplemental briefings as part of their inherent authority to regulate motion practice before them. Pena-Vazquez v. Beharry, 82 A.D.3d 649, 919 N.Y.S.2d 336 (1st Dept. 2011). In fact, every court is vested with powers that permit them to do things necessary for the administration of justice including, but not limited to, accepting late papers, sur-reply papers, or otherwise regulate proceedings before it. Liotti v. Peace, 959 N.Y.S.2d 90 (Sup. Ct. Nassau Co. 2003); Gabrelian v. Gabrelian, 108 A.D.2d 445, 489 N.Y.S.2d 914 (2nd Dept. 1985). This Court believes that the additional affirmations submitted are reasonably related to and appropriate for a proper determination of the Petition. Proctor v. ALCOA, Inc., 2015 NY Misc. LEXIS 63 (NY Sup. Ct. 2015). As such, the Court will consider the Affirmations and give the appropriate weight to them when rendering its decision.
Citing to Matter of Schultz v. Farkas, Petitioner suggests that while affidavits can be considered to explain alterations to a petition, they are not to create a sweeping exception. 36 Misc. 3d 1231(A), 959 N.Y.S.2d 92, 2012 N.Y. Slip Op. 51571(U) (Sup. Ct., Albany Co. 2012); citing Matter of Curley v. Zacek, 22 A.D.3d 954, 803 N.Y.S.2d 221 (3rd Dept. 2005). However, there is no sweeping limiting nature of the Court's authority to consider them either. Affidavits, such as the ones submitted by Respondent-Candidates, can be relied on to cure signature defects, such as the ones alleged herein. Matter of Hennessy v. Board of Elections of County of Oneida, 175 A.D.3d 1777, 109 N.Y.S.3d 525 (4th Dept. 2019). In Hennessy, the Fourth Department held,
“Contrary to the respondents further contention, the court properly validated the signatures at line 8 of page 6, line 5 of page 29, line 8 of page 90, and line 11 of page 91, which the Board had invalidated because the signatures were printed rather than in script and did not match the signatures on file with the Board.”
See generally, Matter of Jaffee v. Kelly, 32 A.D.3d 485, 819 N.Y.S.2d 485 (2nd Dept. 2006); Matter of Henry v. Trotto, 54 A.D.3d 424, 862 N.Y.S.2d 605 (2nd Dept. 2008). While the Court acknowledges that these cases reference actual testimony, the Court finds this to be a distinction without a difference. A duly sworn affidavit identifying the basis for the cure and acknowledging that the hand-printed signature was theirs is admissible and acceptable for the Court to consider. These affidavits constitute evidence that prove the signatures are valid. As such, the Court cannot simply ignore them.
Much has been said and written about recent efforts taken to disenfranchise or disqualify voters. While not wishing to engage in the hyperbole that has gripped this issue, this Court cannot lend its name to a proposition that a hand-printed signature, subsequently verified by a curative affidavit, is invalid and should not be considered. Here, Petitioner simply wants to adopt a broad-based, irrebuttable presumption that a hand-printed signature is per se invalid. Doing this would set a dangerous precedent. The susceptibility to exclude voters, simply because they printed their signature, would result in unfairly excluding voters from the democratic process. This Court cannot sanction a result such as this.
Further, Petitioner here has failed to meet its burden of proof when attempting to invalidate signatures. The testimony of the Board's Office Manager, an employee who was not involved in any part of the actual process other than in a marginally supervisory role, should not be the basis to satisfy the high burden to invalidate a signature that otherwise precludes voters from participating in the electoral process. See Matter of Salka v. Magee, 164 A.D.3d 1084, 83 N.Y.S.3d 720 (3rd Dept. 2018); Matter of LaMendola v. Mahoney, 49 A.D.2d 798, 373 N.Y.S.2d 234 (4th Dept. 1975); Matter of Toles v. Quintana, 183 A.D.3d 1290, 123 N.Y.S.3d 786 (4th Dept. 2020).
As such, the request to invalidate the hand-printed signatures is hereby DENIED. Since these disputed signatures are found to be otherwise valid, the Court need not address the “ditto mark” category of objections as there are not enough challenges to alter the result. Similarly, the Court need not address the “uninitialed changes” category for the same reason. However, the Court does note that it has been held that where there are alterations on a designating petition that are material in nature and not initialed, the corresponding signatures must be invalidated. See Matter of White v. McNab, 40 N.Y.2d 912, 389 N.Y.S.2d 359, 357 N.E.2d 1014 (1976).
As such, for the reasons herein, the Petition is hereby DENIED, insofar as it relates to the line-by-line objections. Further, the Court GRANTS Respondent-Candidates’ motion to dismiss the petition in its entirety as it relates to Respondent Kathy Weppner. The Court hereby schedules a conference for August 19, 2021 at 2:00 p.m. via Microsoft Teams to address the question of fraud, which was previously the subject of bifurcation.
This shall constitute the Decision and Order of the Court.
Emilio Colaiacovo, J.
Response sent, thank you
Docket No: 807440/2021
Decided: August 13, 2021
Court: Supreme Court, Erie County, New York.
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