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Ruiz v. Saez

68 N.Y.2d 154 Court N.Y. Decision date 1986-08-28 English

Decision Majority — Per Curiam. · Dissent — Simons, J.

Contents

Majority

p. 154
In the Matter of Israel Ruiz, Jr., Respondent, v Carmelo Saez, Appellant. (And Other Proceedings.) In the Matter of Ruth A. Potter, Respondent, v Gregory J. Dudek et al., Appellants, et al., Respondent, and Edward Mahoney et al., as Commissioners of Elections and Constituting the Erie County Board of Elections, Appellants. In the Matter of Anthony R. DePaolo, Respondent, v Edward Mahoney et al., as Commissioners of Elections and Constituting the Erie County Board of Elections, Respondents, and Charles W. Termini, Appellant.
Argued August 27, 1986;
decided August 28, 1986
p. 156
POINTS OF COUNSEL
Lucindo Suarez for appellants in the first above-entitled proceedings.
I. A designating petition is rendered invalid if accompanied by an improper cover sheet, which does not separately set out information as to each candidate sought to be designated. (Matter of Pecoraro v Mahoney, 65 NY2d 1026 .) II. Pecoraro requires the application of the standard of strict compliance in that the information required to be supplied by Election Law § 6-134 (2) are matters of prescribed content. (Matter of Hutson v Bass, 4 NY2d 772 ; Matter of Hargett v Jefferson, 63 NY2d 696 .)
Andrew M. Schnier for respondents in the first above-enti
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tied proceedings.
I. Respondents’ cover sheets comply with the requirements of Election Law § 6-134 (2). (Matter of Pecoraro v Mahoney, 65 NY2d 1026 .) II. The facts in these cases are materially distinguishable from those in Matter of Pecoraro v Mahoney. (Matter of Pilat v Sachs, 59 AD2d 515 , 42 NY2d 984 ; Matter of Staber v Fidler, 65 NY2d 529 .) III. Respondents’ cover sheets comply with the "designating petition rules” promulgated by the New York City Board of Elections. (Matter of Pecoraro v Mahoney, 65 NY2d 1026 .)
James C. Brylinski for Gregory J. Dudek and another, appellants in the second above-entitled proceeding.
I. The cover sheet of Dudek/Burns Republican Party designating petition contains all four informational requirements of Election Law § 6-134 (2). II. Matter of Pecoraro v Mahoney ( 65 NY2d 1026 ) is clearly distinguishable from the instant case because in Pecoraro no statement was made as to the number of signatures that applied to each candidate. (Matter of Delle Cese v Black, 63 NY2d 694 .) III. The Court of Appeals in Pecoraro and Delle Cese sets forth informational requirements for a cover sheet but did not require this information to be set forth in any particular language or form. IV. The cover sheet of the Dudek/Burns Republican Party designating petition is in strict compliance with statutory commands as to matters of prescribed content of Election Law § 6-134 (2). (Matter of Hutson v Bass, 83 AD2d 920 , 54 NY2d 772 ; Matter of Staber v Fidler, 65 NY2d 529 ; Brinkerhoff v Mahoney, 97 AD2d 981 , 60 NY2d 558 ; Matter of Fromson v Lefever, 112 AD2d 1064 , 65 NY2d 946 ; Matter of Barrett v Scaringe, 112 AD2d 1095 , 65 NY2d 946 ; Matter of Erazo v Ruis, 112 AD2d 909 ; Matter of McLeod v Del Toro, 112 AD2d 908 .) V. Matter of Pecoraro v Mahoney is clearly distinguishable from the instant case because in Pecoraro numerous additional defects considered in the aggregate led to the invalidation of the petition. VI. The election commissioners unanimously qualified the instant designating petition and the Board should not be overruled absent a finding that it acted in an- arbitrary and capricious manner. VII. Considerations of equity and justice require validation of the instant designating petition. VIII. The lower court’s ruling violates First Amendment rights of appellants and voters. (Lubin v Panish, 415 US 709 ; Kusper v Pontikes, 414 US 51 ; Georges v Carney, 546 F Supp 469 ; North Carolina Socialist Workers Party v North Carolina State Bd. of Elections, 538 F Supp 864 .)
p. 158
Roger D. Avent, County Attorney (Judith Bapst-Bobrowski of counsel), for Edward Mahoney and another, appellants in the second above-entitled proceeding.
The Republican Party designating petition cover sheet of candidates Burns and Dudek complies with the requirements of the Election Law. (Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Pecoraro v Mahoney, 65 NY2d 1026 ; Matter of Sheehan v Scaringe, 60 NY2d 795 ; Matter of Staber v Fidler, 65 NY2d 529 ; Matter of Hutson v Bass, 54 NY2d 772 ; Matter of Ruiz v Sachs, 43 NY2d 894 ; Matter of Donnelly v McNab, 83 AD2d 896 ; Matter of Jacobson v Schermerhorn, 104 AD2d 534 ; Matter of Caffery v Lawley, 21 AD2d 749 .)
Mark Matthew Jasen for Ruth A. Potter, respondent in the second above-entitled proceeding.
I. The cover sheet of the designating petition failed to correctly set forth the information as required by Election Law § 6-134 (2). (Matter of Pecoraro v Mahoney, 65 NY2d 1026 ; Matter of Staber v Fidler, 65 NY2d 529 .) II. The lower court properly applied a strict compliance standard to appellants’ cover sheet. (Matter of Hutson v Bass, 54 NY2d 772 .) III. The majority decision in Pecoraro established State-wide, simple, strict, uniform and evenhanded criteria for compliance with Election Law § 6-134 (2). (Matter of Rutter v Coveney, 38 NY2d 993 .) IV. Appellants’ joint cover sheet is not in substantial compliance with Election Law § 6-134 (2). (Matter of Staber v Fidler, 65 NY2d 529 .) V. The Erie County Board of Elections is not an "aggrieved party”.
Patrick J. Quinlivan for Mark G. Giangreco, respondent in the second above-entitled proceeding.
The cover sheet of the designating petitions failed to set forth the requisite information with specificity required by Election Law § 6-134 (2) and Matter of Pecoraro v Mahoney ( 65 NY2d 1026 [1985].)
James C. Brylinski for appellant in the third above-entitled proceeding.
I. The cover sheet of the Termini Democratic Party designating petition contains all four informational requirements of Election Law § 6-134 (2). II. The cover sheet of the Termini Democratic Party designating petition is in strict compliance with statutory commands as to matters of prescribed content of Election Law § 6-134 (2). (Matter of Hutson v Bass, 83 AD2d 920 , 54 NY2d 772 ; Brinkerhoffv Mahoney, 97 AD2d 981 , 60 NY2d 558 ; Matter of Fromson v Lefever, 112 AD2d 1064 , 65 NY2d 946 ; Matter of Barrett v Scaringe, 112
p. 159
AD2d 1095 , 65 NY2d 946 ; Matter of Erazo v Ruiz, 112 AD2d 909 ; Matter of McLeod v Del Toro, 112 AD2d 908 .) III. Matter of Pecoraro v Mahoney ( 65 NY2d 1026 ) is clearly distinguishable from the instant case because in Pecoraro numerous defects considered in the aggregate led to the invalidation of the petition. (Matter of Quintyne v Canary, 104 AD2d 473 .) IV. Considerations of equity and justice require validation of the instant designating petition. V. The lower court’s ruling violates First Amendment rights of appellant and voters. (Lubin v Panish, 415 US 709 ; Kusper v Pontikes, 414 US 51 ; Georges v Carney, 546 F Supp 469 ; North Carolina Socialist Workers Party v North Carolina State Bd. of Elections, 538 F Supp 864 .) VI. Objector DePaolo lacks standing since he failed to comply with filing requirements for objections in a timely fashion.
Howard S. Rosenhoch for Anthony R. DePaolo, respondent in the third above-entitled proceeding.
I. Termini’s petitions are invalid because the cover sheet fails to provide the information required by law. (Matter of Pecoraro v Mahoney, 65 NY2d 1026 ; D’Amico v Mahoney, 115 AD2d 348 ; Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Hutson v Bass, 54 NY2d 772 ; Matter of Higby v Mahoney, 48 NY2d 15 ; Matter of Alamo v Black, 51 NY2d 716 .) II. The Board properly exercised its ministerial authority in rejecting Termini’s petitions which are invalid on their face. (Matter of Booth, 119 Misc 243 ; Matter of Casler v Board of Elections, 131 Misc 744 ; Matter of Pataki v Hayduk, 87 Misc 2d 1095 ; Matter of McGough v Todd, 51 Misc 2d 255 ; Matter of Veteran v Tarry-town Citizens’ Party, 13 Misc 2d 664 ; Matter of Wicksel v Cohen, 262 NY 446 .) III. DePaolo’s objections were not untimely filed. IV. Termini’s appeal, as limited by his preargument statement, should be dismissed. (Matter of Kaplan v Rohan, 7 NY2d 884 ; Jerry v Blair, 62 App Div 590 .)
Roger D. Avent, County Attorney (Judith Bapst-Bobrowski of counsel), for Edward Mahoney and another, respondents in the third above-entitled proceeding.
I. The number of signatures and pages applicable to each office or candidacy on a designating petition cover sheet is required information. (Matter of Delle Cese v Black, 63 NY2d 694 ; Matter of Pecoraro v Mahoney, 65 NY2d 1026 ; Scoville v Cicoria, 65 NY2d 972 ; Matter of Hutson v Bass, 54 NY2d 772 ; Matter of Quintyne v Canary, 104 AD2d 473 ; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556 ; Matter of Rutter v Coveney, 38
p. 160
NY2d 993 .) II. The Board of Elections acted within its authority in invalidating the petition on its face. (Matter of Bednarsh v Cohen, 267 App Div 133 ; Matter of McGovern [Olson], 291 NY 104 ; Matter of Frankel v Cheshire, 212 App Div 664 ; Matter of McGrath, 189 App Div 140 ; Matter of Wicksel v Cohen, 262 NY 446 .)

OPINION OF THE COURT

These appeals involve the application of Matter of Pecoraro v Mahoney ( 65 NY2d 1026 ) to a range of factual settings. Pecoraro requires that data concerning the number of sheets and number of signatures designating a candidate be indicated on the cover sheet but does not mandate that it be in any particular form, provided the notice and informational purposes specified in the statute (Election Law § 6-134 [2], [3]) are satisfied.

The statutory requirement is not a mere technicality but is designed to provide those seeking to determine the adequacy of the petition with a summary of each volume submitted. It is unreasonable and impractical, within the time constraints afforded by this election process, to require interested parties seeking to ascertain facial validity to count each signature on each page of each volume for every candidate. In order to carry out that purpose the cover sheet must clearly state the number of signatures for each candidate with respect to the particular office.

Matter of Ruiz v Saez

Involved in these proceedings are petitions for public office and party positions on the Democratic primary ballot of September 9, 1986 set forth in volumes 59 (73rd Assembly District), 60 and 61 (76th Assembly District) and 64 (74th Assembly District). Although the cover sheets for volumes 59, 60 and 61 set forth after the name of each of the candidates for Senate, Assembly and Civil Court data showing the volume number, number of pages and number of signatures, no such individual data was set forth on the cover sheet of volume 64 for the Assembly candidate, there being only one block of data for her and for the other 20 candidates whose names appeared on that cover sheet. Nor was such individual data set forth on the cover sheet for volumes 59, 60 and 61 for the 10 candidates for party positions and delegates to the judicial conven

p. 161
tian sought to be designated by each of those volumes, there being only one block of data for all 10 candidates. Thus, as to those candidates the data supporting each candidacy has not been supplied and identified as required by Matter of Pecoraro v Mahoney ( 65 NY2d 1026 , supra).

Respondents argue that the use of similar blocks following the names of the Senate, Assembly and Civil Court Judge candidates on the cover sheets for volumes 59, 60 and 61 constituted a graphic or pictorial representation that the data following the names of party position candidates was intended to apply to all of them, that Pecoraro is distinguishable because there invalidation was predicated on other grounds in addition to the cover sheet error, and that the petitions in the present case conformed to Board of Elections rule.

The Board’s rule cannot change the requirements of the governing statute, however (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451 ) and, as the Pecoraro memorandum makes clear, the petitions there involved would have been invalidated had there been no "additional defects.” (65 NY2d, at p 1028.)

Respondents’ graphic representation argument is inapplicable to volume 64 the cover sheet of which contained but one block of data. Nor does it save the candidacies sought to be designated by the other three petitions, for the alleged graphic presentation does not convey the data required by the statute. While no particular form is mandated, that data must be set forth in a manner reasonably calculated to give the requisite notice and information to the reader (compare, Matter of Potter v Dudek, 68 NY2d 154, with Matter of Keane v State Bd. of Elections, 122 AD2d 966 , lv denied 68 NY2d 605 ["(a)ll of the above pages and signatures apply to all of the designated candidates”]; and Matter of Swift v Lefever, 122 AD2d 922 , lv denied 68 NY2d 605 [stating the total number of signatures and pages and adding opposite the name of each candidate the same total number of signatures] [all decided herewith]).

Matter of Potter v Dudek

A joint petition was filed designating appellants, Christopher Burns and Gregory Dudek, as candidates for the offices of County Court Judge and Family Court Judge. The cover sheet recited these facts, specified that the petition contained "in the aggregate 1,036 pages and 18,560 signatures,” and concluded: "The petition contains 18,560 signatures and 1,036

p. 162
pages for the above mentioned candidates.” Special Term granted respondents’ invalidation petition on authority of Pecoraro and ordered the Board of Elections to remove appellants from the ballot, and a divided Appellate Division affirmed.

Pecoraro does not require invalidation of the petition. There, a petition was filed on behalf of candidates for three offices, and we held that in such a situation failure to reflect the signature totals for each candidate frustrates a primary purpose of the Election Law to facilitate the discovery of fraud and irregularity (see, Election Law § 6-134 [2]; see also, Matter of Staber v Fidler, 65 NY2d 529 , 534). Here, the statement that the signatures contained in the petition were for both candidates satisfied the statutory purpose. We decline respondent’s invitation to read the cover sheet statement microscopically so as to uncover an ambiguity in order to invalidate candidacies. Unquestionably a cover sheet statement such as that contained in Matter of Keane v State Bd. of Elections (supra) is preferred. However, the statement before us in the circumstances conveys the same import and should not precipitate the invalidation of appellants’ candidacies.

Matter of DePaolo v Mahoney

For much the same reason, appellant Charles Termini should be restored to the ballot.

A joint designating petition was filed on behalf of the candidacy of appellant, Charles Termini, for two local offices: Member of the Assembly and Member of the State Committee for the same district. The cover sheet set forth this information and stated that the petition consisted of 231 pages and 3,155 signatures. The Appellate Division, affirming Special Term, invalidated the petition on the authority of Matter of Pecoraro v Mahoney ( 65 NY2d 1026 , supra).

The present case, however, involves only one individual. While in Pecoraro there was little reason to believe that a person signing the petition on behalf of one candidate necessarily supported the candidacy of the other two, here, by contrast, the presumption is overwhelming that a person endorsing appellant for one local office also endorsed him for the other.

Accordingly, in Matter of Ruiz v Saez the order of the Appellate Division should be reversed, without costs, and judgment granted invalidating the petitions for public office

Dissent

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and party positions and directing that the Board of Elections remove from the Democratic primary ballot of September 9, 1986 the names of the candidates for those positions set forth in Bronx volumes 59 (73rd Assembly District), 60 and 61 (76th Assembly District) and 64 (74th Assembly District).

In Matter of Potter v Dudek the order of the Appellate Division should be reversed, without costs, and the petition to invalidate appellants’ joint designating petition denied.

In Matter of DePaolo v Mahoney the order of the Appellate Division should be reversed, without costs, and the petition to validate appellant’s joint designating petition granted.

(dissenting in Matter of Potter v Dudek). I would affirm. The statement on the face sheet that "[t]he petition contains 18,560 signatures and 1,036 pages for the above mentioned candidates” is inherently ambiguous because the reader cannot determine whether it is claimed that the petitions contain 18,560 signatures and 1,036 pages for each of the candidates or both of them together and, if for both together, how many signatures support each candidacy. Conceivably, the petition could contain well under the required number of signatures for one of the candidates and well over the required number for the other. The statement contains no hint of that and, even worse, may mislead, thereby frustrating the provisions and purpose of Election Law § 6-134 (2). Faced with the ambiguity "election officials and interested parties [have] no choice except to search through the volumes page by page to determine the sheets designating each candidate and the validity of the signatures contained on them” (Matter of Pecoraro v Mahoney, 65 NY2d 1026 , 1028).

Matter of Ruiz v Saez: Order reversed, without costs, and judgment granted in accordance with the opinion herein.

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

In Matter of Potter v Dudek: Order reversed, without costs, and petition to invalidate appellants’ designating petition denied.

Chief Judge Wachtler and Judges Meyer, Kaye, Titone and Hancock, Jr., concur in Per Curiam opinion; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Alexander concurs.

In Matter of DePaolo v Mahoney: Order reversed, without

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costs, and petition to validate appellant’s designating petition granted.

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

Cases cited

Statutes and regulations cited