January 6, 2009
MICHAEL SELLERS, IN HIS CAPACITY AS MAYOR, ON BEHALF OF THE VILLAGE OF COBLESKILL, NEW YORK, ALEXANDER MACKAY, IN HIS CAPACITY AS A RESIDENT TAXPAYER, PLAINTIFFS/, PETITIONERS,
ROBERT LAPIETRA, SCHOHARIE COUNTY BOARD OF ELECTIONS, LEWIS L. WILSON, IN HIS CAPACITY AS COMMISSIONER OF THE SCHOHARIE COUNTY BOARD OF ELECTIONS, AND CLIFFORD C. HAY, IN HIS CAPACITY AS COMMISSIONER OF THE SCHOHARIE COUNTY BOARD OF ELECTIONS, DEFENDANTS/, RESPONDENTS.
The opinion of the court was delivered by: John C. Egan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiffs/petitioners, Michael Sellers and Alexander MacKay (petitioners), commenced this proceeding by Order to Show Cause, seeking a preliminary injunction, 1) enjoining the defendants/respondents Schoharie County Board of Elections, Lewis L. Wilson and Clifford C. Hay (hereinafter "the County respondents) from certifying the results of the November 4, 2008 election in the Village of Cobleskill, New York for the position of Trustee as to the defendant/respondent Robert Lapietra (Mr. Lapietra); 2) declaring that Mr. Lapietra is not a resident of the Village of Cobleskill for purposes of the New York State Public Officer's Law §3(1) and §30*fn1; 3) declaring that Mr. Lapietra is not qualified to serve as Trustee in the Village of Cobleskill; and 4) declaring that a vacancy exists in that position.
Petitioners assert that on November 4, 2008, Mr. Lapietra was a candidate for office on the ballot for one of two open seats for the position of Village Trustee in the Village of Cobleskill. As a result of the general election, Mr. Lapietra was elected into one of the open seats for Village Trustee. Yet, petitioners argue, Mr. Lapietra was not a resident of the Village of Cobleskill before, on or after November 4, 2008, and is, therefore, not eligible to serve as a Village Trustee.
The respondents oppose the relief sought by petitioners. Furthermore, in his answer, Mr. Lapietra claims that he has "at all times relevant" been a resident of the Village of Cobleskill. On December 8, 2008 and December 16, 2008, a hearing was held with respect to the petitioners' application for preliminary relief. As a preliminary matter, both the County respondents and Mr. Lapietra argue that this Court has no subject matter jurisdiction in a summary proceeding to remove a successful candidate from public office.*fn2 The Court fill first address the issue of subject matter jurisdiction.
In support of their position that this Court lacks subject matter jurisdiction, the respondents argue that, since the Village of Cobleskill's elections are handled by the Schoharie County Board of Elections, Election Law §16-100 applies to this case.*fn3 The respondents point to Delgado v. Sunderland 97 NY2d 420, 423 (2002) for the proposition that any action Supreme Court takes with respect to a general election challenge "must find authorization and support in the express provisions of the [Election Law] statute".*fn4 The respondents assert that this Court has no jurisdiction in a summary proceeding to remove a successful candidate from office or to order a new election. The respondents contend that, where, as here, the successful candidate has assumed office and there is a disputed issue of fact (Mr. Lapietra's residence) the relief sought by petitioners could only be granted in a plenary action, i.e quo warrantor.
In opposition to the respondents' affirmative defense of lack of subject matter jurisdiction, by correspondence dated December 16, 2008, the petitioners assert that this action was properly commenced as a declaratory judgment and Article 78 proceeding. Petitioners argue that this proceeding was not commenced pursuant to Article 16 of the Election Law, but pursuant to the Public Officer's Law, the purpose of which is preserve the integrity of governance in the Village of Cobleskill. Petitioners cite to Marino v. Board of Election, 199 AD2d 505 (2nd Dept. 1993). In Marino, a "purported proceeding" was commenced pursuant to the Election Law seeking a determination that a candidate was ineligible to serve as a member of the Yonkers City Council based on the allegation that he was not a resident of the appropriate district. The Appellate Division, Second Department held that a plenary action in the nature of quo warrantor was not necessary since the office was not yet occupied. Accordingly, the Court in Marino held that the issue could be addressed in an action for a declaratory judgment.*fn5
At the outset, I note that this Court has no inherent power to expand judicial review of election matters beyond that provided by statute. It has only such powers as are given by statute. Corrigan v. Board of Elections, 38 AD2d 825 (2nd Dept.1972). Any action the Court takes with respect to a general election challenge "must find authorization and support in the express provisions of the [Election Law] statute" Delgado v. Sunderland 97 NY2d 420, 423 (2002)(citing Schieffelin v. Komfort, 212 NY 520, 535 (1914)).
The Public Officers Law and the Election Law address the situation at hand. As a matter of basic qualification, one must be a resident of a town to hold office therein. Public Officers Law §3(1). Prospective candidates for public office must themselves meet the basic qualifications for that office. Election Law §6-122 provides:
A person shall not be designated or nominated for public office or party position who (1) is not a citizen of the State of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications thereof....
The Election Law specifically recognizes the possibility that questions may arise as to the basic qualifications of a candidate for public office by providing an immediate, pre-election process to challenge a candidate's qualifications.
Election Law §16-102(1) provides that
The nomination or designation of any candidate for any public office or party position or any independent nomination, or the holding of an uncontested primary election, by reason of a petition for an opportunity to ballot having been filed, or the election of any person to any party position may be contested in a proceeding instituted in the supreme court by any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections, as provided in this chapter, except that the chairman of a party committee may not bring a proceeding with respect to a designation or the holding of an otherwise uncontested primary.
This action to remove a candidate from the ballot based upon allegations that the candidate does not meet the basic requirements to hold office must be commenced in accordance with the requirements of Election Law §16-102. Scaringe v. Ackerman,119 AD2d 327 (3d Dept. 1986). The Election Law imposes a very short time period in which to commence such a proceeding - it must be "instituted within fourteen days after the last day to file [a] petition, or within three business days after * * * a determination of invalidity". Election Law §16-102(2).*fn6 The reason for this short time limit is obvious - to provide for an expedited ruling so that, if the challenge is successful, a replacement candidate can be placed on the ballot. The Affidavit of Michael Sellers submitted in support of the petition contains a copy of the Certificate of Mr. Lapietra's Acceptance of the designation/nomination as a candidate for the office of Village Trustee, together with the "Independent Nominating Petitions", alleged to have been filed with the Schoharie County Board of Elections on August 19, 2008. There is no evidence in this record that at any time prior to the November 4, 2008 General Election, petitioners commenced a pre-election action in this Court challenging Mr. Lapietra's residency, as provided for by Election Law §6-154 and §16-102, and that failure to act is a fatal defect. "Since Election Law article 6 contains the provisions which govern the nomination and designation of candidates for election to public office (see, Election Law §6-100), and since Election Law §16-102(1) authorizes the court to entertain proceedings to contest the nomination or designation of any candidate for public office, it follows that any proceeding to remove a candidate from the ballot for an alleged failure to comply with a requirement of Election Law article 6 must be brought under Election Law § 16-102(1) and is subject to the time restrictions of § 16-102(2)." Scaringe,119 AD2d at 333. Petitioners have simply failed to bring a challenge to the nomination of Mr. LaPietra within the time allowed by the Election Law.*fn7 To permit petitioners to make those challenges now would open the door to innumerable suits by any person unhappy with the election results and those who would seek to set aside the majority will of the electors. Seavey v. Van Hatten 276 AD 260, 262 (4th Dept.1949).
This Court determines that it lacks subject matter jurisdiction over the petitioners' claims as either an Article 78 or declaratory judgment action. Furthermore, this Court is unable to summarily cancel, set aside or annul a general election.*fn8 The relief sought by petitioners (declaring that Mr. Lapietra is not qualified to serve as trustee and that a vacancy exists in the position that he now holds) is tantamount to setting aside the general election. Petitioners had ample opportunity before the General Election to contest Mr. Lapietra's residency, as provided for by Election Law §6-154 and §16-102, yet failed to do so. See also Scaringe v. Ackerman, 119 AD2d 327 (3rd Dept. 1986), aff'd, 68 NY2d 885(1986)(court denied plaintiffs' challenge to candidate's residency as untimely because "[t]he only remedy available to contest Ackerman's designation or nomination on the ground that he did not meet the qualifications necessary to hold office ... is a judicial proceeding pursuant to Election Law § 16-102(1)" and "petitioners failed to commence this proceeding within the time limits prescribed by Election Law § 16-102(2)" ); Ferguson v. Cheeseman 138 AD2d 852, 854 (3rd Dept.,1988).
In rendering this decision, I make no findings as to the residency of Mr. LaPietra and his qualifications to serve as village trustee, but petitioners, notwithstanding their failure to bring a timely proceeding prior to his election, are not without recourse.
Executive Law § 63-b(1) provides that the Attorney General, upon his own information or upon the complaint of a private person, may maintain an action "against a person who usurps, intrudes into, or unlawfully holds or exercises within the state a franchise or a public office, civil or military, or an office in a domestic corporation." As a general rule, this type of action, known as quo warrantor, is the proper and exclusive remedy to try title to public office.*fn9See People ex rel. McLaughlin v. Board of Police Commissioners of City of Yonkers, 174 NY 450 (1903); Delgado, 97 NY2d at 423-424. "[T]he proper vehicle for challenging the results and contesting title to the public office of the purported winner is a quo warrantor action, now codified in Executive Law § 63-b." Delgado, 97 NY2d at 423- 424. "The power to commence a quo warrantor action is vested in the Attorney General, to be used only after the alleged "usurper" has taken office .... In exercising this power, the Attorney General performs an investigative and screening function on such challenges....and is presumed to afford a claimant a full opportunity to assert a legal right, if any exists....The exclusivity of quo warrantor in these circumstances also avoids the risk of leaving the contested office vacant for possibly a protracted period while the election result is being litigated through the courts to a final conclusion." Id. (citations omitted). Quo warrantor is a proper proceeding where there are disputed fact issues respecting the right to office. Delgado, 97 NY2d at 423-424; Sheehy v. Town of Hamburg, 134 Misc. 762 (S.Ct. Erie County 1928).
The exclusivity of quo warrantor also serves the public interest in having the Attorney General perform a protective 'screening function' on such challenges. Morris v. Cahill, 96 AD2d 88, 91 (3rd Dep't 1983). While an Article 78 proceeding will lie to compel election officials to perform their ministerial duties, an Article 78 proceeding is not available as a substitute for an action in the nature of quo warrantor, which is the remedy for contesting an election and determining the right of title to public office. Smith v. Wenzel, 171 AD 123, 125 (4th Dept.1915); Ginsberg v. Heffernan, 186 Misc. 1029, 1036 (S.Ct. Bronx County, 1945); Jones v. Town Bd. of Town of Petersburg, 35 Misc 2d 688 (S.Ct. Rensselaer County,.1962). An Article 78 proceeding is not proper in lieu of quo warrantor if the public office is occupied. Brescia v. Mugridge, 52 Misc 2d 859 (S.Ct. Suffolk County, 1967); Smith v. Dillon, 267 A.D. 39 (3rd Dept.1943). Whether to initiate such an action is solely within the province of the Attorney General.
The petition is dismissed. The Court does not reach the merits of and expresses no opinion as to whether Mr. Lapietra is qualified to hold public office under Section 3 of the Public Officers Law.
This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to the attorney for the defendant Lapietra. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
IT IS SO ORDERED.