8/24/13 Hardwick v. Ward decision by Judge Henry Nowak

7/22/2019 8/24/13 Hardwick v. Ward decision by Judge Henry Nowak

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At a Term of the Supreme Court of New York, Part25, held in and for the County of Erie at 25Delaware Avenue, Buffalo, New York on the 12 th

day of August, 2013

PRESENT: HON. HENRY NOWAK, J.S.C.Justice Presiding

STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE

_____________________________________

KEVIN R. HARDWICK, EDWARD A. RATHLEONARD K. PERO, JEFFREY W. GIER,CHRISTOPHER K. ARONICA, RAYMOND A.

BILLICA, JAMES B. TOMKINS, JAMES MAYROSE,

Petitioners DECISION AND ORDER vs.

INDEX NO. I-2013-002178

DENNIS E. WARD and RALPH M. MOHR, AsCommissioners of and constituting THE ERIECOUNTY BOARD OF ELECTIONS;NEW YORK STATE BOARD OF ELECTIONS;and ERIE COUNTY DEMOCRATIC COMMITTEE;and EXECUTIVE COMMITTEE OF THE ERIECOUNTY DEMOCRATIC COMMITTEE; andJEREMY J. ZELLNER, Chair of the Erie CountyDemocratic Committee and Presiding Officer of aPurported Authorization Meeting; andDENNIS E. WARD, Secretary of the Erie CountyDemocratic Committee and Secretary of aPurported Authorization Meeting; and

Respondents,

WILLIAM CONRAD III, ALAN K. GETTER,COLLEEN M. SIENER, DAVID M. GUNNER,DONALD L. CLARK, PAULETTE R. RENALDO,JAMES P. DePASQUALE, DAVID J. ARCARA,PAUL J. CLARKSON, DAWN M. SPIRES, LYNN

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M. KRAJIC, PEVERLY A. KINNERY, SARAH E.TOLLNER, WILLIAM M. STANLEY, LEON E.BERNER, JULIE L. LATHROP, ERIK M.POLKOWSKI, MICHAEL J. SHERY

Respondent-Candidates.

A proceeding brought pursuant to New York StateElection Law 1-106. 16-102, 16-116 and 6-120 for the purpose of invalidating certainauthorizations purportedly issued by the ErieCounty Democratic Committee and the ExecutiveCommittee of the Erie County DemocraticCommittee.

_____________________________________

Petitioners move for an order invalidating a Democratic Party certificate of authorization

as well as the underlying designating petitions for the Respondent-Candidates, which would then

remove them as Democratic Party candidates for the September 10, 2013 primary election and

November 4, 2013 general election for various public offices. Petitioners also seek that this

court direct the Respondent, Erie County Board of Elections, to remove the Respondent-

Candidates names from the ballots for such elections.

Respondents move for summary judgment dismissing the petition. First, respondents

allege that petitioners lack standing against ten of the eighteen Respondent-Candidates. Second,

respondents claim that without jurisdiction over those ten, the court must dismiss the petition to

invalidate the certificate of authorization for lack of necessary parties. They further seek

summary judgment because the certificate of authorization was personally delivered to an

employee of the United States Postal Service on July 15, 2013, and thus was timely filed under

the Election Law.

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In deciding the instant motions, the court considered the following:

- July 23, 2013 Order to Show Cause granted by Hon. Joseph R. Glownia, J.S.C.;

- July 23, 2013 Verified Petition, with exhibits annexed thereto;

- August 2, 2013 Notice of Motion for Summary Judgment by Respondents ErieCounty Democratic Committee, Executive Committee of the Erie CountyDemocratic Committee, Jeremy J. Zellner, and Respondent-Candidates WilliamConrad III, Alan K. Getter, Donald L. Clark, Paulette R. Renaldo, Peverly A.Kinney, Sarah E. Tollner, William M. Stanley, and Erik M. Polkowski;

- Affidavit of Erich S. Weyant, sworn to on August 1, 2013, and exhibits attachedthereto;

- August 2, 2013 Verified Answer to the Petition by Respondents Erie County

Democratic Committee, Executive Committee of the Erie County DemocraticCommittee, Jeremy J. Zellner, and Respondent-Candidates William Conrad III,Alan K. Getter, Donald L. Clark, Paulette R. Renaldo, Peverly A. Kinney, SarahE. Tollner, William M. Stanley, and Erik M. Polkowski;

- August 2, 2013 Verified Answer of Dennis E. Ward, as Commissioner of the ErieCounty Board of Elections;

- Answering Affidavit of Ralph M. Mohr, sworn to on August 6, 2013;

- Affidavit of Edward A. Rath, sworn to on August 6, 2013

- Affidavit in Opposition to the Motions for Summary Judgment and Dismissal, andin reply to Respondents answer, by Emilio Colaiacovo, Esq., sworn to on August7, 2013, and exhibits attached thereto;

- August 8, 2013 Notice of Motion by Dennis E. Ward, Esq., as Secretary of theErie County Democratic Committee seeking dismissal of the invalidation

proceeding, summary judgment and other declaratory relief;

- Affidavit of Dennis E. Ward, Esq., sworn to on August 8, 2013, and exhibitsattached thereto, in support of that motion;

- August 8, 2013 Supplemental Notice of Motion for Summary Judgment byRespondents Erie County Democratic Committee, Executive Committee of theErie County Democratic Committee, Jeremy J. Zellner, and Respondent-Candidates William Conrad III, Alan K. Getter, Donald L. Clark, Paulette R.

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Renaldo, Peverly A. Kinney, Sarah E. Tollner, William M. Stanley, and Erik M.Polkowski;

- Supplemental Affidavit of Erich S. Weyant, sworn to on August 8, 2013 insupport of such motion;

- Supplemental Affidavit of Jeffrey Sheridan, sworn to on August 8, 2013, insupport of such motion;

- Affidavit of Martin R. Siminski, sworn to on August 8, 2013, and exhibit attachedthereto, in support of such motion;

- Notice of Motion to Dismiss by Respondent-Candidates Colleen M. Siener, DavidM. Gunner, James P. DePasquale, David J. Arcara, Paul J. Clarkson, Dawn M.Spires, Lynn M. Krajacic, Leon E. Berner, Julie L. Lathrop and Michael J. Sherry;

- August 8, 2013 Affirmation of Sean E. Cooney, Esq., in support of such motion;

- Reply Affidavit of Emilio Colaiacovo, Esq., sworn to on August 9, 2013;

- Oral argument by Emilio Colaiacovo, Esq., Dennis Ward, Esq., Jerome D. Schad,Esq., and Jonathan M. Gorski, Esq., held on August 12, 2013; and

- Petitioners Exhibit 1, accepted into evidence on August 12, 2013.

FACTUAL SUMMARY

On July 13, 2013, the Executive Committee of the Erie County Democratic Committee

convened and authorized candidates for the nomination of Democratic party for various public

offices. 1 The authorization nominating these candidates was signed by respondent, Jeremy J.

Zellner, Chair of the Erie County Democratic Committee, and Dennis E. Ward, Secretary of the

1 Eighteen candidates were authorized for the following offices: Erie CountyLegislator (4 th Legislative District), Erie County Legislator (6 th Legislative District), Town of Aurora Town Clerk, Town of Aurora Highway Superintendent, Town of Brant Supervisor, Townof Brant Board Member, Town of Colden Supervisor, Town of Colden Councilman, Town of Colden Highway Superintendent, Town of Evans Town Clerk, Town of Grand IslandCouncilman (2 seats), Town of Grand Island Highway Superintendent, Town of MarillaSupervisor, Town of Marilla Councilman, Town of Newstead Councilman, Town of OrchardPark Councilman.

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Erie County Democratic Committee, on July 15, 2013. No one filed an objection with the Erie

County Board of Elections objecting to the Erie County Democratic Committees Certificate of

Authorization.

Respondents allege that on July 15, 2013, Jeffrey Sheridan, Executive Director of the Erie

County Democratic Committee, and Erich S. Weyant, staff member of that same committee,

prepared and assembled sixteen large manilla envelopes and one white business envelope for

mailing that evening. The white business envelope included the certificate of authorization at

issue. Mr. Sheridan placed first class postage on the envelope and addressed it to the Erie

County Board of Elections. Mr. Weyant left the offices of the Erie County Democratic

Committee at approximately 8:45 p.m. and arrived at the United States Postal Service mail

facility on Cayuga Road in the Town of Cheektowaga shortly after 9:00 p.m. that evening.

Mr Weyant asserts that he carried the seventeen envelopes in for mailing, and was

ultimately assisted by a postal clerk with whom he was familiar. At that time, the postal clerk

took all seventeen envelopes, including the white business envelope that held the certificate of

authorization, from Mr. Weyant. Mr. Weyant advised the postal clerk that he was required to

have the white business envelope hand stamped that day, and that the other sixteen envelopes

were to be sent by certified mail. The clerk began processing certified mail postage which was

required for the sixteen manilla envelopes. Mr. Weyant was not required to purchase postage for

the white business envelope at issue, as it already had a first class postage stamp on it, but

obtained a receipt for the certified mail on the other envelopes dated July 15, 2013 at 9:32 p.m.

Mr. Weyant then left all seventeen envelopes with the postal clerk, assuming that he had hand

stamped the white business envelope at issue.

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The Erie County Board of Elections received the white envelope including the Erie

County Democratic Committees Certificate of Authorization on July 17, 2013. The envelope

was postmarked on July 16, 2013, not July 15, 2013. Subsequent to the date, Dennis E. Ward,

Esq., who also serves as Commissioner of the Erie County Board of Elections, received a July

18, 2013 letter from Martin R. Siminski, (A) Postmaster for the United States Postal Service in

Buffalo, New York. The letter, which was verified and incorporated into an affidavit by Mr.

Siminski, requested the Erie County Board of Elections to accept the white envelope and its

contents as mailed on July 15, 2013. Mr Siminski claimed that the postal clerk who assisted Mr.

Weyant was in fact requested to stamp the envelope with a ring date on July 15, 2013 but

failed to do so. Instead, the envelope was processed the following day, resulting in the July 16,

2013 stamp. Mr. Siminski admits that it was clerk error that he did not hand cancel the

envelope on July 15, 2013.

The petition seeking to invalidate the Certificate of Authorization was signed on July 23,

2013. Petitioners are candidates for eight of the eighteen public offices addressed in the

certificate of authorization, and therefore, the authorizations purportedly designate opponents for

the offices sought by each petitioner. However, ten of the candidates listed on the certificate of

authorization have no corresponding petitioners seeking the same offices.

I. THE ISSUE OF STANDING AND NECESSARY PARTIES

Under Election Law 16-102 (1), a certificate of authorization may be challenged only by

only 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. Petitioners do not include any party

chairmen or objectors; instead, they only have standing as aggrieved candidates. Further, it is

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undisputed that petitioners could only be considered as aggrieved candidates against eight of the

candidates listed in the Certificate of Authorization, and none of them are aggrieved candidates

against the other ten.

Respondents claim that by failing to have aggrieved candidate status against ten of the

eighteen candidates listed on the certificate of authorization, petitioners lack standing as to those

ten Respondent-Candidates. In Dixon v Reynolds , Sup Ct, Erie County, July 30, 2009, Devlin, J.,

index No. 2009/7941, affd on other grounds 65 AD3d 819 (4th Dept 2009), the court found that

the petitioner in that matter had no standing to challenge a certificate of authorization listing

three other candidates, where the petitioner was arguably an aggrieved candidate against only

one. Respondents therefore contend that the ten Respondent-Candidates without corresponding

petitioners running against them are not properly before the court, regardless of whether they

were joined as parties and served with the instant petition. If those Respondent-Candidates are

not properly before the court, then the challenge against the Certificate of Authorization must be

dismissed for failure to include necessary parties, pursuant to Masich v Ward , Sup Ct, Erie

County, August 11, 2009, Devlin, J., index No. 2009/7941, affd 65 AD3d 817 (4th Dept 2009),

lv denied 13 NY3d 701 (2009).

The practical effect of respondents two-part argument is that if aggrieved candidates

challenge a certificate of authorization based solely upon their status as aggrieved candidates

(and not as objectors or party chairmen), then there must be a petitioner-candidate opposing each

respondent-candidate on the certificate of authorization. Petitioners respond to that argument by

contending that the notion of requiring correlative petitioners is simply an imaginary

requirement and that there is no authority that requires the same number of petitioners are

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respondents. Petitioners allege that only one aggrieved candidate is sufficient to challenge a

Certificate of Authorization. Respondents, however, claim the opposite - that for petitioners to

have standing to invalidate this Certificate of Authorization, they must have standing as either

aggrieved candidates, objectors, or a party chairman or for each and every candidate listed on the

certificate of authorization.

Notwithstanding a statement made by counsel for petitioners in an affidavit that

[p]etitioners only seek judgment against the corresponding candidates for those political office

(Affidavit of Emilio Colaiacovo, sworn to on August 7, 2013, 29), the parties agree that a

certificate of authorization is a single document that is either valid or invalid, and cannot be

modified by the court. That being said, prejudice to each side seems to increase with the number

of candidates listed on the certificate of authorization. If far more than eighteen candidates are

included on a certificate of authorization, how difficult would it be to assemble the same number

of petitioners? By the same token, why should one aggrieved candidate be able to strike many

other candidates against whom he or she has no interest?

Respondents contend that the disenfranchising relief sought by petitioners should never

be entertained unless no procedural defenses exist and the court can properly have jurisdiction

over all candidates listed on the certificate of authorization. Furthermore, respondents point out

that eighteen petitioners were not required to challenge the certificate of authorization in this

case; any registered voter who filed objections to the Certificate of Authorization pursuant to

Election Law 6-154 could have done so individually.

This court agrees. Election Law 16-102 (1) provides three different categories of

individuals who have standing to challenge a certificate of authorization. Any registered voter

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may file objections to have such standing. If individuals petition the court claiming only

aggrieved candidate status, then a sufficient number of petitioners with such status are

necessary to challenge each of the candidates listed on the certificate of authorization.

Accordingly, this court grants summary judgment to Respondent-Candidates Colleen M. Siener,

David M. Gunner, James P. DePasquale, David J. Arcara, Paul J. Clarkson, Dawn M. Spires,

Lynn M. Krajacic, Leon E. Berner, Julie L. Lathrop and Michael J. Sherry, as none of the

petitioners have standing against them. The court then grants summary judgment to the

remaining respondents, as the ten Respondent-Candidates listed above are necessary parties who

would be inequitable affected by invalidating the certificate of authorization ( Masich v Ward ,

65 AD3d 817 [4th Dept 2009]).

THE FILING OF THE CERTIFICATE OF AUTHORIZATION

6-120 (3) of the Election Law states that a Certificate of Authorization shall be filed not

later than four days after the last day to file a designating petition. There is no dispute that in

2013, the last day to file designating petitions was July 11, 2013, and the last day to file a

certificate of authorization was July 15, 2013. Pursuant to Election Law 1-106 (1), all papers

sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed

timely filed and acceptance for filing when received.

Had petitioners had standing to bring the instant petition against all respondents, this

court would grant summary judgment to respondents based upon the timely filing of the

certificate of authorization. While counsel for petitioners expresses disbelief as to particular

details included in Mr. Weyants affidavits, petitioners fail to raise any issues of fact to contradict

the sworn statements of Mr. Weyant, Mr. Sheridan, and particularly, Postmaster Martin R.

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Siminski. Accordingly, there is no basis on which to conduct a hearing to resolve disputed issues

of fact. Respondents established by undisputed evidence that the certificate of authorization was

placed in the care of the United States Postal Service on July 15, 2013, that a postmark was not

placed on the envelope bearing that date only due to clerk error, and that petitioners complied

with Election Law 1-106 (2) by filing the certificate of authorization within the time prescribed.

Compliance with Election Law 1-106 (1) is an opportunity to obtain presumptive

validity, not the exclusive means to establish timely mailing. The plain language of the statute as

well as relevant case law support that timely mailing can be demonstrated absent a timely

postmark ( see e.g., Fink v Salerno , 105 AD2d 489 [3d Dept 1984]; Valentino v Kelleher , Sup

Ct, Albany County, September 24, 2001, Teresi, J., index No. 5185-01; Hartley v Porpiglia , Sup

Ct, Chautauqua County, August 4, 1988, Mattina, J., index Nos. G-11951, G-11958, affd 143

AD2d 502 [4th Dept 1988], lv denied 72 NY2d 805 [1988]). The facts of Hartley v Porpiglia ,

supra , are particularly analogous to the instant matter the papers were handed to a postal clerk

on the last day for filing, a hand stamp was not placed upon the envelope as requested due to

clerk error, and the resulting postmark was for the following day. The court held that party filing

the papers fully complied with the full letter and spirit of the law ( id . at p. 5).

In each case cited by petitioners, there was no dispute that the particular papers were

mailed after the particular deadline ( see e.g., Amo v. Orange County Board of Elections , 286

AD2d 454 [2d Dept 2001]; Plunkett v Mahoney , 76 NY2d 848 [1990]; Hicks v. Eagan , 166

AD2d 735 [2d Dept 1990]). Consequently, they are distinguishable from the instant action.

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For the above-stated reasons, respondents motion to dismiss the instant petition is

granted. This decision constitutes the order of this court.

ENTER:

____________________________________ HENRY NOWAK, J.S.C.

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8/24/13 Hardwick v. Ward decision by Judge Henry Nowak

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