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Supreme Court, Appellate Division, Third Department, New York.

IN RE: INDEPENDENCE PARTY STATE COMMITTEE et al., Respondents, v. NEW YORK STATE BOARD OF ELECTIONS et al., Respondents, Alan Hevesi, Appellant.

Decided: August 22, 2002

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and KANE, JJ. Martin E. Connor, New York City (A. Joshua Ehrlich of counsel), for appellant. Gary Sinawaki and Harry Kresky, New York City, for Independence Party State Committee and others, respondents. Jeffrey T. Buley and Michael A. Avella, Albany, for Mary O. Donohue and another, respondents.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 21, 2002 in Albany County, which granted petitioners' application, in a proceeding pursuant to Election Law § 16-102, to enjoin respondent State Board of Elections from certifying any candidate for the Independence Party primary election on September 10, 2002 for the office of Comptroller who was not an enrolled member of the Independence Party and has not been duly authorized by the State Committee of such party.

This appeal involves the interplay between Election Law § 6-104(2) and § 6-120(3), commonly known as the Wilson-Pakula Law, as they relate to a political party's designation of a candidate for statewide office who is not an enrolled member of that party.   Under Election Law § 6-104(2), all of those receiving 25% or more of the vote cast on any ballot of the party's State Committee shall have the right to make written demand to respondent State Board of Elections (hereinafter the Board) that their names appear on the primary ballot as candidates for nomination.   At the same time, Election Law § 6-120 prohibits a party designation or nomination of a candidate who is not an enrolled member of the party except upon authorization by a majority vote of the members of the party committee (see Election Law § 6-120[3] ).

The rules of the Independence Party, which are implicated in this proceeding, accommodate both statutory requirements by providing that, following a roll call vote for each statewide office, a candidate receiving at least one more vote than 50% of the weighted vote of those present and voting would be the party's designee and a candidate receiving at least 25% could request that the Board place his or her name on the primary ballot.   In addition, at the conclusion of the voting for each office, the Independence Party State Committee would be asked to vote a certificate of authorization to any candidate with at least 25% of the weighted vote who is not an enrolled member of the Independence Party.

At the 2002 Independence Party State designating meeting, respondent Alan Hevesi (hereinafter respondent), an enrolled Democratic Party member, and petitioner John J. Faso, an enrolled Republican Party member, each received over 25% of the weighted vote for the office of Comptroller.   On the ensuing vote for a certificate of authorization, however, only Faso received more than 50% of the weighted vote.   Respondent therefore did not receive a certificate of authorization.   Respondent presented a certificate of consent and acceptance of the Independence Party designation to the Board and demanded that his name be placed on the ballot for the September 10, 2002 primary election.   The Independence Party State Committee and some of its officers, as well as Faso and another aggrieved candidate whose claim is no longer at issue, commenced this proceeding to enjoin the Board from placing respondent's name on the primary ballot.   Supreme Court granted petitioner's application and enjoined the Board from placing the names of any candidate for the nomination of the Independence Party on the ballot who is not a member of the party and has not been authorized by the party.   Respondent appeals.

 We are unpersuaded by respondent's central claim that the legislative intent behind the current statutory scheme was to allow all candidates approved by at least 25% of the weighted vote of a state committee to run in the primary;  we accordingly affirm.   It is well settled that “a statute is to be construed according to the ordinary meaning of its words and resort to extrinsic matter is inappropriate when the statutory language is unambiguous and the meaning unequivocal” (Sega v. State of New York, 60 N.Y.2d 183, 190-191, 469 N.Y.S.2d 51, 456 N.E.2d 1174 [citations omitted] ).  “Generally, a statute is not deemed impliedly modified by a later enactment ‘unless the two are in such conflict that both cannot be given effect.   If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction should be adopted’ ” (Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 N.Y.2d 186, 195, 524 N.Y.S.2d 409, 519 N.E.2d 320, quoting People v. Newman, 32 N.Y.2d 379, 390, 345 N.Y.S.2d 502, 298 N.E.2d 651, cert. denied 414 U.S. 1163, 94 S.Ct. 927, 39 L.Ed.2d 116 [internal quotation marks omitted] ).   Further, “statutes relating to the same subject matter * * * must be read together and applied harmoniously and consistently” (Alweis v. Evans, 69 N.Y.2d 199, 204, 513 N.Y.S.2d 95, 505 N.E.2d 605;  see Iazzetti v. City of New York, 94 N.Y.2d 183, 701 N.Y.S.2d 332, 723 N.E.2d 81;  Matter of Consolidated Edison Co. of N.Y. v. Department of Envtl. Conservation, supra at 195, 524 N.Y.S.2d 409, 519 N.E.2d 320).

 In our view, there is no facial inconsistency between Election Law § 6-104(2) and § 6-120(3).   To the contrary, one statute governs the means by which party members and nonmembers can gain access to a party's primary ballot and the other requires nonparty members to go through the additional process of obtaining party authorization.   Both statutory requirements can be accommodated without conflict, as has been done in the applicable rules of the Independence Party.   Further, even if we were to resort to legislative history, we see nothing in the 1967 amendments to the predecessor of Election Law § 6-104 (see L. 1967, ch. 716, § 2) warranting the conclusion reached by respondent.   To the contrary, the legislative history of the Wilson-Pakula Law can be seen to evince the Legislature's intent to maintain the requirement that nonparty members obtain party authorization in order to appear on the party's primary ballot.   In fact, the 1967 legislation cited by respondent reiterated the judicial candidate exception to the restriction that party nominees or designees be party members, but did not modify the nonparty member authorization requirements in any way (see L. 1967, ch. 716).

Respondent's additional contentions have been considered and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.


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