IN THE MATTER OF JONATHAN A. LAVELL, JACQUALINE G. BERGER, SHAWN A. LAVIN, BRIAN J. KULPA AND THOMAS A. LOUGHRAN, PETITIONERS-APPELLANTS,
ERIN K. BAKER, JOSEPH A. SPINO, JR., MARJORY H. JAEGER, GUY R. MARLETTE, MICHAEL P. KEARNS, TIMOTHY B. HOWARD, STEPHAN I. MYCHALJLIW, JR., RALPH M. MOHR, NEW YORK STATE BOARD OF ELECTIONS, NEW YORK STATE COMMITTEE OF INDEPENDENCE PARTY, EXECUTIVE COMMITTEE OF NEW YORK STATE COMMITTEE OF INDEPENDENCE PARTY, FRANK MACKAY, CHAIRMAN OF INDEPENDENCE PARTY OF STATE OF NEW YORK, WILLIAM BOGARDT, SECRETARY AT JULY 15, 2017 MEETING OF EXECUTIVE COMMITTEE OF STATE COMMITTEE OF INDEPENDENCE PARTY OF NEW YORK, RESPONDENTS-RESPONDENTS, ERIE COUNTY BOARD OF ELECTIONS, RESPONDENT-APPELLANT, ET AL., RESPONDENT.
D. SCHAD, WILLIAMSVILLE, FOR PETITIONERS-APPELLANTS.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH
OF COUNSEL), FOR RESPONDENT-APPELLANT.
T. BURNS, WILLIAMSVILLE, AND RUPP BAASE PFALZGRAF CUNNINGHAM
LLC, BUFFALO (SEAN W. COSTELLO OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS ERIN K. BAKER, JOSEPH A. SPINO, JR.,
MARJORY H. JAEGER, GUY R. MARLETTE, MICHAEL P. KEARNS,
TIMOTHY B. HOWARD, STEPHAN I. MYCHALJLIW, JR. AND FRANK
MACKAY, CHAIRMAN OF INDEPENDENCE PARTY OF STATE OF NEW YORK.
M. MOHR, BUFFALO, RESPONDENT-RESPONDENT PRO SE.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND
from an order of the Supreme Court, Erie County (Timothy J.
Walker, A.J.), entered August 10, 2017 in a proceeding
pursuant to Election Law article 16. The order, inter alia,
denied and dismissed the petition seeking to invalidate a
certificate of authorization.
hereby ORDERED that said appeal by respondent Erie County
Board of Elections is dismissed and the order is affirmed
Petitioners commenced this proceeding pursuant to Election
Law article 16 seeking, inter alia, to invalidate the
Wilson-Pakula certificate of authorization (authorization)
filed by respondent Executive Committee of the New York State
Committee of the Independence Party (Executive Committee)
authorizing certain respondents to be designated as
candidates on the ballot for public offices in Erie County or
subdivisions thereof. Petitioner-objector, Jonathan A.
Lavell, filed objections to the designation with respondent
Erie County Board of Elections (Board). The Board's two
commissioners split on the validity of the authorization. In
their petition, petitioners claimed that the authorization
should have been made by respondent New York State Committee
of the Independence Party (State Committee), not the
Executive Committee. Supreme Court, inter alia, dismissed the
petition, and petitioners and the Board now appeal. We
dismiss the appeal by the Board inasmuch as it is not an
aggrieved party (see CPLR 5511; Matter of
Sheldon v Jaroszynski, 142 A.D.3d 762, 762).
agree with Supreme Court that petitioner-objector has
standing to commence this proceeding inasmuch as he is a
registered member of the Independence Party and filed
objections to the designation (see Election Law
§ 16-102 ). We further agree with the court that the
remaining petitioners (petitioner-candidates), who allege
that they are aggrieved candidates, lack standing.
"[O]rdinarily, a candidate of one party has no standing
to challenge the internal affairs and operating functions of
another political party in its designation of
candidates" (Matter of Nicolai v Kelleher, 45
A.D.3d 960, 962). Here, petitioner-candidates claim that the
authorization did not comply with the Independence
Party's own rules. As nonparty members,
petitioner-candidates lack standing to raise that claim
(see Matter of Breslin v Conners, 10 A.D.3d 471,
473, lv denied 3 N.Y.3d 603).
to the contention of petitioner-objector, Supreme Court
properly dismissed the petition. The State Committee adopted
resolutions in 2008, 2011, and 2013 delegating the authority
to issue authorizations to the Executive Committee (see
Matter of New York State Comm. of the Independence Party v
New York State Bd. of Elections, 87 A.D.3d 806, 811-812,
lv denied 17 N.Y.3d 706). The filing of new rules of
the Independence Party in 2016 did not explicitly or
impliedly rescind or revoke those prior adopted resolutions.
Thus, as the court properly determined, the resolutions
remained in effect, and the authorization issued here was
valid. We respectfully disagree with our dissenting colleague
that the fact that resolutions were issued in 2008, 2011, and
2013 shows that the resolutions expired each year. The 2008
resolution encompassed Erie County, while the 2011 resolution
encompassed both Erie and Nassau Counties. Therefore, there
was indeed a reason for the State Committee to issue the
different resolutions, and the fact that resolutions were
issued in those years does not demonstrate that the
resolutions ever expired. The resolutions themselves contain
no language of expiration.
reject the further contention of petitioner-objector that the
presumption of validity set forth in Election Law §
6-154 (1) did not apply. Petitioner-objector's challenge
to the authorization was a challenge to the designating
petition (see New York State Comm. of the Independence
Party, 87 A.D.3d at 809-810). Such a petition is
presumed valid provided, inter alia, that it is "in
proper form" (§ 6-154 ). Where, as here, the
presumption applies, action by the Board of Elections is
required to invalidate the designation. Because "[a]ll
actions of the board shall require a majority vote of the
commissioners prescribed by law for such board" (§
3-212 ), the Board of Elections "cannot act"
when there is "a split vote among the two
Commissioners" (Matter of Elgin v Smith, 10
A.D.3d 483, 484), as occurred here.
concur except Troutman, J., who dissents in part and votes to
modify in accordance with the following memorandum: I agree
with the majority in dismissing the appeal by respondent Erie
County Board of Elections, but in my view Supreme Court
should have granted the petition. I therefore respectfully
dissent in part.
I agree with the majority with respect to the issues of
standing and the presumption of validity, I conclude that
respondent New York State Committee of the Independence Party
(State Committee) did not delegate authority to issue the
Wilson-Pakula certificate of authorization (authorization) to
respondent Executive Committee of the New York State
Committee of the Independence Party (Executive Committee) in
accordance with the Independence Party rules. Those rules
state that delegation may be made "pursuant to a
resolution adopted by the State Committee prior to the
deadline to file authorization certificates." That
deadline is a date that occurs annually and is reset
annually. Thus, contrary to the majority, I do not read the
rules to allow a delegation to remain perpetually in effect,
regardless of whether the resolutions themselves contain
express language of expiration.
the Independence Party's past practice is inconsistent
with the majority's reading inasmuch as the party
repeatedly issued resolutions for Erie County in 2008, 2011,
and 2013. Had the 2008 resolution been effective unless
explicitly revoked, there would have been no reason for the
State Committee to issue redundant resolutions for Erie
County in 2011 and 2013. Contrary to the view of the
majority, I conclude that the inclusion of Nassau County in
the 2011 resolution does not explain the need for issuing a
redundant resolution for Erie County, particularly in light
of the fact that the 2008 and 2013 resolutions both related
to Erie County only. Indeed, the State Committee did not
merely issue a resolution in 2011, but it even litigated the
validity of that resolution for Erie County in Matter of
New York State Comm. of the Independence Party v New York
State Bd. of Elections (87 A.D.3d 806, lv
denied17 N.Y.3d 706). In that case, the State Committee
does not appear to have argued that its 2011 delegation to
the Executive Committee was valid based on the perpetual
existence of the 2008 resolution (see id. at
809-812), notwithstanding that the 2008 ...