In the Matter of the Application of James Earl McMILLAN, III a/k/a Jimmy McMillan, Petitioners,
COMMISSIONERS OF ELECTIONS OF the CITY OF NEW YORK, Board of Election In the City of New York, Respondents. No. 101243/13.
This decision has been referenced in a table in the New York Supplement.
Imbesi Christensen, New York, attorney for the petitioner.
Corporation Counsel of the City Of New York, New York, attorney for the respondents.
PAUL L. WOOTEN, J.
Motion Sequences 001 and 002 are hereby consolidated for purposes of disposition.
James Earl McMillan, III a/k/a Jimmy McMillan (petitioner), brought this proceeding pursuant to Election Law § 16-102(1), to validate his independent nominating petition from the Rent is 2 Damn High Party as a candidate for the public office of Mayor of the City of New York, for the General Election to be held on November 5, 2013 (motion sequence 001). Also before the Court is a motion by Commissioners of Elections of the City of New York and the Board of Elections in the City of New York (Board) (collectively, respondents) to dismiss the proceeding, pursuant to CPLR 3211(a)(2), for lack of subject matter jurisdiction (motion sequence 002).
BACKGROUND AND FACTS
On August 20, 2013, petitioner filed an independent nominating petition from the Rent is 2 Damn High Party as a candidate for the public office of Mayor of the City of New York, for the General Election to be held on November 5, 2013. The independent party nominating petition cover sheet indicated that the petition contained fifteen volumes, with volume numbers: NY1301485, NY1301486, NY1301487, NY1301488, N.Y. 1301489, NY1301490, NY1301491, NY1301492, NY1301493, NY1301298, KG1301549, KG1301550, KG1301551, KG1301565 and KG1301566. The cover sheet indicates that " the petition contains the number, or in excess of the number, of valid signatures required by the Election Law" (Order to Show Cause [OSC], exhibit 1). The cover sheet also indicates the name, address, and phone number of the petitioner as the contact person to correct any cover sheet deficiencies ( id.; petitioner's one in evidence). The Board did not receive any General Objections within three days, as required by the Board Rules, or subsequent legal objections to petitioner's independent nominating petition.
By letter dated August 23, 2013, the Board sent a notice of non-compliance letter (NCN Letter) by United States Postal Service (USPS) Guaranteed Overnight Express Mail, to the petitioner. The NCN Letter stated that the petitioner's independent nominating petition " failed to comply with the New York State Board of Elections Regulations, 9 NYCRR § 6215 of the Board Rules ... adopted on June 3, 2013" because (1) the " [c]andidate claims [petition] volumes which was never filed" ; and (2) " [c]andidate claims entirety of Volume Identification Number NY1301298 but does not appear on every page" (OSC, exhibit 2). The NCN Letter also indicated that " [t]his defect may be cured within (3) business days of the date of this letter by the filing of an amended cover sheet ... Failure to amend the cover sheet within the three (3) day period shall be a FATAL DEFECT " ( id.; see also petitioner's two in evidence).
On August 26, 2013, the petitioner timely filed an amended independent party nominating petition cover sheet. The amended petition cover sheet indicated that the petition is comprised of thirteen volumes, with volume numbers: NY1301485, NY1301486, NY1301487, NY1301488, N.Y. 1301498, NY1301490, NY1301491, NY1301492, NY1301493, KG1301550, KG1301551, KG1301565 and KG1301566 (OSC, exhibit 3). The thirteen volumes comprise a total of 10,253  valid signatures for the public office that requires only 3,750 valid signatures ( id. ). The amended cover sheet also states under the list of petition identification numbers, that " [c]andidate does not claim [volumes] NY1301298, KG1301549" ( id.; petitioner's three in evidence).
At a public hearing on September 3, 2013, the Board invalidated petitioner's independent nominating petition. The Board mailed correspondence to petitioner that same day, dated September 3, 2013, by first class mail notifying him of their determination. The correspondence stated that the Board found, pursuant to a meeting of the Commissioners, that the amended cover sheet was not in substantial compliance with the Board's Rules governing same, and invalidated it on the grounds that it " claims petition volumes on which the candidate does not appear" (OSC, exhibit 4; Petitioner's four in evidence).
The Herein Proceeding
On September 6, 2013, petitioner filed and timely commenced this special proceeding by OSC to validate his independent nominating petition, pursuant to Election Law § 16-102(1), on the last day to commence such a proceeding. Petitioner filed the unsigned OSC with the Clerk of the Court, along with an Affidavit of petitioner in support, which incorporated various exhibits, and an attorney's affirmation in support, which referenced and incorporated the same exhibits. Pursuant to the OSC, the parties appeared before the Court on Monday, September 9, 2013, the next business day after the OSC was brought by the petitioner. The respondents requested additional time to review petitioner's submissions and such request was granted. The matter was adjourned until September 11, 2013.
On September 11, 2013, respondents served in Court a demand for a Bill of Particulars (BP), as well as a motion to dismiss the petition, pursuant to CPLR 3211(a)(2), on the basis that the Court lacks subject matter jurisdiction over the proceeding as the petitioner failed to file a verified petition with his application, as required by Election Law § 16-116. The matter was then adjourned until September 16, 2013, for petitioner to review respondents' motion to dismiss and submit papers in opposition. On September 13, 2013, petitioner served the Court with his Verified BP and his opposition to respondents' motion.
Subsequently, on September 16, 2013, the Court held a hearing on the record, wherein it took testimony from the petitioner as well as heard oral argument on the matters pending before the Court. The following documents were entered into evidence during the hearing: (1) petitioner's independent nominating petition cover sheet, filed on August 20, 2013; (2) the Board's NCN Letter dated August 23, 2013; (3) petitioner's independent nominating petition amended cover sheet, filed on August 26, 2013; (4) the Board's determination invalidating the petitioner's amended cover sheet, which was time-stamped " NOT VALID CURE" on September 3, 2013; (5) the Board's determination letter, dated September 3, 2013, sent to the petitioner on that same date by ...