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Staber v. Fidler

65 N.Y. 529 Court N.Y. Decision date 1985-08-28 English

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p. 529
In the Matter of Annabelle Staber, Appellant, v Lewis A. Fidler et al., Respondents. (And Another Proceeding.) In the Matter of Nydia M. Velazquez, Respondent, v Daisey B. Parrilla, Appellant. (And Another Proceeding.) In the Matter of Dora M. Garrett, Appellant, v Susan D. Alter et al., Respondents. (And Another Proceeding.)
Argued August 26, 1985;
decided August 28, 1985
p. 530
POINTS OF COUNSEL
Aaron D. Maslow and Debra Silber for appellant in the first above-entitled proceeding.
I. The Fidler petition is invalid for noncompliance with the Election Law’s mandatory requirements concerning petition cover sheets, in that each cover sheet overstates the total number of signatures actually contained in the petition and the total number of signatures actually contained in each volume of the petition. (Matter of Hargett v Jefferson, 63 NY2d 696 ; Jefferson v Abrams, 747 F2d 94 ; Matter of Jonas v Black, 104 AD2d 466 , 63 NY2d 685 ; Matter of Higby v Mahoney, 48 NY2d 15 ; Matter of Morris v Hayduk, 45 NY2d 793 ; Matter of Brace v Scaringe, 96 AD2d 1012 ; Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Smith v Mahoney, 60 NY2d 596 ; Matter of Golata v Mahoney, 60 NY2d 597 ; Matter of Hutson v Bass, 54 NY2d 772 .) II. The requirement of Election Law § 6-134 (2) that a designating petition cover sheet shall indicate “the total number of signatures contained in such petition” is constitutional. (Oregon v Mitchell, 400 US 112 ; Jenness v Forison, 403
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US 431 ; Williams v Rhodes, 393 US 23 ; Valenti v Rockefeller, 292 F Supp 851 , 393 US 405 , 1124; New York State Democratic Party v Lomenzo, 460 F2d 250 ; American Party v White, 415 US 767 ; Unity Party v Wallace, 707 F2d 59 ; Gammerman v Board of Elections, 550 F Supp 1031 ; Moldonado v Rodriguez, 523 F Supp 177 ; Gangemi v Sclafani, 506 F2d 570 .)
Michael Freedman and Melvin B. Berfond for Lewis A. Fidler, respondent in the first above-entitled proceeding.
I. The total of signatures set forth in the cover sheet fully complies with the provisions of the Election Law. (Matter of Hargett v Jefferson, 63 NY2d 696 ; Matter of King v Van Wart, 67 Misc 2d 592 , 37 AD2d 773 ; Matter of O'Brien v Meisser, 14 AD2d 600 , 10 NY2d 799 ; Matter of Bernhardt v Sachs, 57 AD2d 598 ; Matter of Esse v Chiavaroli, 71 AD2d 1046 ; Matter of Krueger v Richards, 93 AD2d 898 ; Matter of Alamo v Black, 51 NY2d 716 .) II. Respondent’s petition for council member is valid in that there was substantial compliance with the Election Law. (Matter of Kantrowitz v Goldin, 47 Misc 2d 658 ; Matter of Rosen v McNab, 25 NY2d 798 ; Matter of Golata v Mahoney, 60 NY2d 597 ; Matter of Hutson v Bass, 54 NY2d 772 ; Ruiz v Sachs, 43 NY2d 894 ; Matter of Jonas v Black, 104 AD2d 466 , 63 NY2d 685 ; Matter of Amalfitano v Sadowski, 51 NY2d 719 ; Matter of Cairo v Hardwood, 42 NY2d 1098 ; Matter of Sheehan v Scaringe, 60 NY2d 795 .) III. The remedy for an incorrect number of signatures stated in a subscribing witness statement is the invalidation of that incorrect sheet only. (Matter of Livreri v Garguilo, 49 NY2d 832 ; Matter of Klemann v Acito, 45 NY2d 796 ; Matter of White v McNab, 40 NY2d 912 ; Matter of O'Brien v Meisser, 14 AD2d 600 , 10 NY2d 799 ; Matter of Hall v Heffeman, 185 Misc 742 , 269 App Div 953 , 295 NY 599 ; Matter of Sullivan, 259 App Div 752 ; Matter of Berger v Acito, 64 AD2d 949 ; Matter of King v Van Wart, 67 Misc 2d 592 , 37 AD2d 773 ; Matter of Esse v Chiavaroli, 71 AD2d 1046 .) IV. Denial of ballot access for a trivial reason violates the 1st and 14th Amendment rights of respondent. (Moldonado v Rodriguez, 423 F Supp 177 ; Gammerman v Board of Elections, 550 F Supp 1031 ; Unity Party v Wallace, 707 F2d 59 .)
William J. Garry and Francis J. Aquila for appellant in the second above-entitled proceeding.
The Velazquez petition for council member is invalid for noncompliance with the Election Law’s mandatory requirements concerning petition cover sheets in that there was a failure to set forth the total number of signatures actually contained in the petition and a failure to set forth the total number of signatures actually contained in each
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volume of the petition. (Matter of Hargett v Jefferson, 63 NY2d 696 ; Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Smith v Mahoney, 60 NY2d 596 ; Matter of Golata v Mahoney, 60 NY2d 597 ; Matter of Engert v McNab, 60 NY2d 607 ; Matter of Hutson v Bass, 54 NY2d 772 ; Matter of Brosnan v Black, 104 AD2d 469 , 63 NY2d 692 ; Matter of Contessa v McCarthy, 40 NY2d 629 ; Matter of Brace v Scaringe, 96 AD2d 1012 .)
Emmett Haines Pritchard, Herman Badillo, Esmeralda Simmons and Paul Wooten for respondent in the second above-entitled proceeding.
I. Appellant Parrilla is precluded from raising the new cover sheet challenge since she did not specify an objection on this ground in her pleadings. (Matter of Brosnan v Black, 104 AD2d 469 , 63 NY2d 692 ; Matter of Belak v Rossi, 96 AD2d 1011 ; Matter of Suarez v Sadowski, 48 NY2d 620 .) II. Hargett should not apply to the Velazquez petition because the facts are clearly different. (Matter of Hargett v Jefferson, 63 NY2d 696 .) III. The trial court erred in not allowing testimony from the subscribing witnesses on the challenged sheets.
John M. Leventhal for appellant in the third above-entitled proceeding.
The Alter petition for council member is invalid for noncompliance with the Election Law’s mandatory requirements concerning petition cover sheets in that there was a failure to set forth the total number of signatures actually contained in the petition and a failure to set forth the total number of signatures actually contained in each volume of the petition. (Matter of Hargett v Jefferson, 63 NY2d 696 ; Jefferson v Abrams, 747 F2d 94 ; Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Smith v Mahoney, 60 NY2d 596 ; Matter of Golata v Mahoney, 60 NY2d 597 ; Matter of Engert v McNab, 60 NY2d 607 ; Matter of Hutson v Bass, 54 NY2d 772 ; Matter of Brosnan v Black, 104 AD2d 469 , 63 NY2d 692 ; Matter of Contessa v McCarthy, 40 NY2d 629 ; Matter of Brace v Scaringe, 96 AD2d 1012 .)
Anthony J. Genovesi for Susan D. Alter, respondent in the third above-entitled proceeding.
I. Respondent adopts the conclusions of law contained in petitioner’s memorandum of law submitted in the Matter of Staber v Fidler. II. Petitioner’s argument in the case at bar is contradictory to his position in the Matter of Staber v Fidler. III. Respondent Alter’s cover sheet discrepancy is distinguished from Fidler’s cover sheet discrepancy. (M atter of Jonas v Black, 104 AD2d 466 , 63 NY2d 685 ; Matter of Hargett v Jefferson, 63 NY2d 696 .)
p. 533
OPINION OF THE COURT

These proceedings, like others before us today, involve minor discrepancies between the numbers of signatures indicated on cover sheets and the actual numbers of signatures contained in the designating petitions themselves. Each of the three candidates seeks a place on the New York City Democratic primary ballot for the public office of council member from his or her respective district. The designating petition of Lewis A. Fidler contains either 4,659 or 4,660 signatures, which his cover sheets overstated as 4,669. Nydia M. Velazquez’s designating petition contains 2,420 signatures, overstated on her cover sheet by four. Susan D. Alter’s designating petition contains 4,643 signatures, which her cover sheets understate by three. In each case, a place on the primary ballot requires 1,500 valid signatures.

Upon cross applications to validate and invalidate, Special Term found the cover sheet overstatements in the designating petitions of Fidler and Velazquez inconsequential violations of Election Law § 6-134 (2).[1] Nonetheless, interpreting our decision in Matter of Hargett v Jefferson ( 63 NY2d 696 ) to require “ ‘strict’ compliance” in every case of cover sheet overstatements, the court “most reluctantly” granted the applications to invalidate and denied the applications to validate in the Fidler and Velazquez proceedings. In the Alter proceeding, the court denied the application to invalidate and granted the application to validate, reading our decision in Matter of Jonas v Black ( 63 NY2d 685 , affg 104 AD2d 466 ) as requiring only “ ‘substantial’ compliance” in cases of cover sheet understatements.

The Appellate Division modified, on the law and the facts, by reversing Special Term’s determinations in Fidler and Ve lazquez, granting their applications to validate, denying the applications to invalidate and ordering that their names be placed on the appropriate ballots.[2] It expressed the view, in which we concur, that “Matter of Hargett v Jefferson (supra) has

1 Election Law § 6-134 (2) provides in pertinent part: “There shall be a cover sheet attached to each petition consisting of ten or more sheets and each volume thereof. Each cover sheet shall indicate *** the total number of signatures contained in such petition. If the petition is filed in two or more volumes, the cover sheet for each volume shall also contain the following additional information: * * * the total number of signatures contained in the volume”.

2 That court affirmed the determination in Matter of Garrett v Alter, and the appeal is here by our leave ( 65 NY2d 607 ).

p. 534
been misconstrued by those who rely upon it to attack designating petitions where the overstatement or understatement of the numbers of signatures is extremely minor”, and that Hargett was not intended to abrogate the doctrine that the law will not bother with trifles. This is so, even within the context of the heightened scrutiny with which courts must determine compliance with the technical requirements of the Election Law.

This is not to say that all cover sheet discrepancies may be ignored. Broad policy considerations weigh in favor of requiring strict compliance with the Election Law in these cases. One of the purposes of the statutory requirements is to facilitate the discovery of fraud and irregularity in designating petitions (Matter of Rutter v Coveney, 38 NY2d 993 , 994). Overstatements of the number of signatures in designating petitions may deter potential challengers, who believe they could more profitably spend their time and energy challenging designating petitions whose cover sheets indicate a number of signatures closer to the required minimum. Conversely, understatements, especially substantial ones, could attract challenges which would otherwise be deemed unwarranted and a waste of judicial and other resources when they are most in demand. Another benefit of strict construction of the Election Law is that it reduces the likelihood of unequal enforcement (Matter of Carr v State Bd. of Elections, 40 NY2d 556 , 558). Both the actual operation and public perception of the electoral process as one that seeks regularity and evenhanded application must not be distorted. The Election Law must have a neutral application unaffected by party affiliation, policy, position, incumbency, race, sex, or any other criterion irrelevant to a determination of whether its requirements have been met. In short, a too-liberal construction of the Election Law has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process.

On the other hand, a strictness of construction beyond that necessary for the effectuation of those policies can also lead to injustice (Matter of Carr v State Bd. of Elections, supra, at p 559). We implicitly recognized this in Matter of Jonas v Black (supra), where an inconsequential understatement was not fatal to the validity of the designating petition. We did not hold to the contrary in Matter of Hargett v Jefferson (supra), which involved overstatements that were substantial by any estimate (one cover sheet claimed 5,074 signatures though the designating petition to which it related only contained 3,831; the other claimed 3,325 though its designating petition contained 2,083).

p. 535
Even though laboring under the severe time constraints of election cases, of which we are painfully aware (see, Matter of Reiter v Black, 63 NY2d 689 ), it should be apparent from a reading of our precedents, informed by the underlying policies they are intended to serve, that there is room for judicious decision-making within the confines marked by Matter of Hargett v Jefferson (supra), and Matter of Jonas v Black (supra), without offending the policy of stare decisis. As this court announced many years ago, “No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association” (Dougherty v Equitable Life Assur. Socy., 266 NY 71 , 88, rearg denied 266 NY 615 ).

In the present cases, we agree with the Appellate Division that the discrepancies in the designating petitions of all three candidates were inconsequential and did not implicate any of the underlying policy considerations discussed above, and no potential for fraud has been alleged or is apparent. Accordingly, we affirm its order.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

In each case: Order, insofar as appealed from, affirmed, without costs.

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