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Bourges v. LeBlanc

98 N.Y.2d 418 Court N.Y. Decision date 2002-08-30 English

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p. 418
[777 NE2d 239, 748 NYS2d 347]
In the Matter of Phyllis Bourges et al., Respondents, v Kenneth P. LeBlanc, Appellant, et al., Respondents.
Argued August 28, 2002;
decided August 30, 2002
p. 419
POINTS OF COUNSEL
Victor G. Grossman, Carmel, for appellant.
I. The court below properly vacated respondent’s default where respondent did not have actual notice of the hearing despite petitioners’ compliance with service requirements. (Matter of Breitenstein v Turco, 254 AD2d 566 ; Jones v New York City Tr. Auth., 293 AD2d 322 ; Meyer v Fisher & Sons Dental Lab., 90 AD2d 889 ; Concepcion v Talon Realty Corp., 258 AD2d 494 ; Zombek v Williams, 124 AD2d 524 ; Matter of Twin Towers Assoc., Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705 ; Matter of Fulani v Barasch, 166 AD2d 741 ; Matter of Contessa v McCarthy, 40 NY2d 890 ; Matter of Elston v Mahoney, 122 AD2d 969 ; Matter of Kaplan v Bucha, 207 AD2d 509 , 84 NY2d 821 .) II. Respondent LeBlanc meets the constitutional qualifications to seek elective office as a member of the Assembly of the State of New York for the 99th District. (Galbraith v New York Conservative Party, 155 AD2d 183 ; Matter of Meehan v Lomenzo, 63 Misc 2d 490 , 34 AD2d 1024 , 27 NY2d 600 ; Matter of Robertson v Foster, 185 AD2d 963 ; Matter of Bradley v Brody, 230 AD2d 871 .)
John Ciampoli, Albany, Marc D. Craw and Kevin J. Engel for respondents.
I. Service was reasonably calculated to provide notice to respondent. (Matter of Fulani v Barasch, 166 AD2d 741 ; Matter of Contessa v McCarthy, 40 NY2d 890 ; Matter of Hervey v Greene County Bd. of Elections, 166 AD2d 743 .) II. Respondent candidate does not meet constitutional residency requirements; the Supreme Court was bound by the decisional law of the Second Department. (Matter of Robertson v Foster, 185 AD2d 963 ; Matter of Bradley v Brody, 230 AD2d 871 ; Matter of Thompson v Hayduk, 45 AD2d 955 , 34 NY2d 980 .)

OPINION OF THE COURT

Petitioners brought this proceeding pursuant to Election Law § 16-102 to declare invalid the designating petitions naming respondent Kenneth P. LeBlanc as the Independence Party

p. 420
and. Democratic Party candidate for the public office of Member of New York State Assembly, 99th Assembly District. Petitioners alleged that, because respondent lived continuously in California from 1987 until 1999, he failed to satisfy the New York residency requirements of article III (§ 7) of the State Constitution.

Section 7 provides that: “No person shall serve as a member of the legislature unless he or she is a citizen of the United States and has been a resident of the state of New York for five years, and, except as hereinafter otherwise prescribed, of the assembly or senate district for the twelve months immediately preceding his or her election” (emphasis supplied).[1]

Supreme Court concluded that article III (§ 7) requires that only the 12-month district residency period — and not the five-year state residency period — immediately precede the election. In that court’s view, any five years of residency satisfies the requirements of the Constitution. The Appellate Division disagreed, holding that article III (§ 7) requires members of the State Legislature to reside in New York for a period of five years immediately preceding their election. We agree with the Appellate Division and affirm.

Although the constitutional language is susceptible of both interpretations, review of the record of the Constitutional Convention of 1938, which added the five-year residency requirement, reveals that both the sponsors and opponents of the provision understood that the period must immediately precede the election (see 3 Revised Rec, 1938 NY Constitutional Convention, at 2387-2391). To read the constitutional provision in the manner urged by respondent would frustrate the Convention’s objective of ensuring that legislative representatives have contemporaneous familiarity and involvement with the issues facing the state and the community they represent. As the sponsor argued, “if a man lives in the State for 20 years and he moves out to San Francisco and stays there for five years, I still contend that being away for five years, he loses close touch with the local situation, and he should live here another five years, if he wants to be a legislator in the State” (see id. at 2390).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

* Upon the provision’s adoption, the published version read: “has been a resident of the state of New York for five years, and of the assembly or senate district for the twelve months immediately preceding his or her election” (see NY Const of 1938, art III, § 7).

p. 421
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in per curiam opinion.

Order affirmed, without costs.

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