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DI ROSA v. DODD

May 5, 1981

Anthony DI ROSA, an enrolled member of the Right to Life Party of the State of New York, on behalf of himself and all others similarly situated, and Thomas Schiliro, an aggrieved candidate, Plaintiffs,
v.
Isabel R. DODD and Stanley Harwood, as Commissioners of the Nassau County Board of Elections, The Committee to Elect Guy Mazza, The Committee to Elect Joseph Curran, Mary Jane Tobin, Individually and as Chairperson of the Right To Life Party of the State of New York, Robert Abrams, as Attorney General of the State of New York, Defendants



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

This action arises from a Special Election held on April 7, 1981 to fill a vacant assembly seat in the Thirteenth Assembly District in Nassau County, New York. It is the plaintiffs' position that the nominating procedures of the Right to Life Party of the State of New York are constitutionally defective and give rise to claim under 42 U.S.C. § 1983 in that the State Chairperson of the Right to Life Party can, under certain circumstances, nominate a non-party candidate without any prior consultation with party members in the electoral district where the election is to be held. Plaintiffs maintain that the failure to allow Right to Life Party members residing in the Thirteenth Assembly District to participate in the selection of a candidate was a denial of the right to a "one-man, one-vote" election.

Before proceeding with the facts of this case, a brief description of the two plaintiffs is in order: Anthony Di Rosa ("Di Rosa"), who is acting on behalf of himself and all others similarly situated, is a duly qualified and enrolled member of the Right to Life Party of the State of New York, residing in Kings County, New York; and the other plaintiff, Thomas Schiliro ("Schiliro"), is an aggrieved Democratic candidate of the Special Election, residing in the Thirteenth Assembly District, Nassau County, New York.

 The plaintiffs have moved for a preliminary injunction to restrain the Nassau County Board of Elections from certifying Guy Mazza ("Mazza"), as the winner of the Special Election. The defendant Committee to Elect Mazza has cross-moved to dismiss the action on the grounds that one, the nomination rules of the Right to Life Party are constitutionally valid, and two, that the court is without jurisdiction to entertain the suit since the claims herein have been fully litigated before the New York State courts and are thus barred by the doctrine of res judicata. Moreover, the defendant Mary Jane Tobin ("Tobin"), Chairperson of the New York State Right to Life Party, has challenged Di Rosa's standing before this court since he is a resident of the Thirty-ninth Assembly District in Kings County, New York, and thus, has no personal stake in the outcome of the case. In addition, Tobin also takes issue with Schiliro's standing in that Schiliro is a Democrat, and consequently, has no standing to challenge the Party rules of the Right to Life Party. For reasons set forth below, the defendants' motions to dismiss are granted in all respects.

 BACKGROUND

 On March 3, 1981, Governor Hugh L. Carey issued a proclamation directing that a Special Election be held on April 7, 1981 to fill a vacant assembly seat in the Thirteenth Assembly District, Nassau County. For that election, the plaintiff Schiliro was nominated by the Democratic Party; Joseph Curran was nominated by the Conservative Party; and Mazza, a Republican, was nominated by both the Republican Party and the Right to Life Party. The official vote of the Board of Canvassers determined that Mazza was the winner *fn1" with the margin of victory being those votes received under the Right to Life designation.

 The focus of the dispute in this proceeding is directed toward the nomination or selection of Mazza to run on the Right to Life ticket as a non-party candidate. Thus, the balance of the facts will be dedicated to this aspect of the election and the procedures used by the Right to Life Party to nominate Mr. Mazza.

 Section 6-114 of New York Election Law ("Election Law") provides that "(party) nominations for an office to be filled at a special elections shall be made in the manner prescribed by the rules of the party." In addition, section 6-120(3) of the Election Law provides that a non-party candidate must receive the authorization of a party committee for a political subdivision or from "such other committee as the rules of the party may provide" to run for office under that party's banner. Since the Right to Life Party has no county, town, or village committee within Nassau County and since the State Committee of the Right to Life Party was not in session at the time nominations for the Special Election were to be submitted, Article V, Section 8 of the Party rules of the Right to Life Party authorized Tobin as State Chairperson of the Party to make the nomination. *fn2"

 Accordingly, on March 13, 1981, a Certificate of Nomination purporting to nominate Mazza as the Right to Life candidate was filed in the office of the Board of Elections for Nassau County with the nomination certificate signed solely by Tobin as Chairperson of the Right to Life Party. Thereafter, Suzanne Bartczak ("Bartczak") filed an objection to the nomination of Mazza, and on March 23, 1981 at a meeting of the Nassau County Board of Elections, two members of the Board voted to decide whether the Certificate of Nomination complied with Section 6-120 of the Election Law. They split their vote, and consequently, the contested Certificate of Nomination of Mazza was presumed valid.

 Schiliro and Bartczak then commenced an action in Supreme Court, Nassau County to invalidate the Certificate of Nomination of Mazza as the Right to Life candidate. In dismissing the action, Judge Delin of the Supreme Court, Nassau County, ruled that the nomination of Mazza was carried out in compliance with both the New York Election Law and the Rules and Regulations of the Right to Life Party. This holding was affirmed by the New York State Supreme Court, Appellate Division, Second Department, and on April 3, 1981, the decision was affirmed by the New York State Court of Appeals.

 The plaintiffs are now before this court on the basis of 42 U.S.C. § 1983. In response to any defense of res judicata or collateral estoppel, plaintiffs maintain that the state courts never addressed the question of the constitutionality of the nomination procedures of the Right to Life Party, and thus, these doctrines are inapplicable in the case at bar. Before addressing the applicability of any res judicata theory and before focusing on the plaintiffs' standing problems, the court will set forth the plaintiffs' constitutional arguments as this will allow the balance of the opinion to follow logically.

 PLAINTIFFS' ARGUMENT

 Plaintiffs contend that it is a denial of a constitutional right to "one-man, one-vote", Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); see Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), to allow one person, in this case the State Chairperson of the Right to Life Party, to nominate a candidate for office. Plaintiffs argue that the Election Law statutes, specifically Election Law §§ 6-114 and 120(3), require nominating procedures of party organizations to operate through committees. Nonetheless, under certain circumstances, the Right to Life Party Chairperson, alone, is authorized to make nominations throughout the State without any in-put from local party members. Plaintiffs maintain that no party who invokes the authority of the state by placing a person on the ballot should be allowed to dilute or remove the right of a party member in an area to have some input in the nomination process.

 There is support in this circuit for plaintiffs' position. More specifically, in Seergy v. Kings County Republican Committee, 459 F.2d 308 (2d Cir. 1972), the Court of Appeals noted that "(in) those rare instances where committeemen perform public electional functions (e.g., the nomination of candidates to fill vacancies ... ) ..., the ... committee is required ... to apply the one-man, one-vote principle." Id. at 314. In an expanded application of this holding, the Second Circuit in Montano v. Lefkowitz, 575 F.2d 378 (2d Cir. 1978) considered a situation similar to the one at bar. In Montano, a Special Election was called to fill a Congressional seat in Bronx County. Pursuant to Election Law § 6-114 and the rules of the Democratic, Republican, Conservative, and Liberal parties, the parties' executive committees for the counties in which the electoral district was located were authorized to nominate a candidate. Many delegates to the executive committees, however, were elected by electoral districts with no relationship to the Congressional district where the election was to be held. Under this arrangement, delegates from ...


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