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Stoppenbach v. Sweeney

98 N.Y.2d 431 Court I. The court should reject Decision date 2002-08-30 English

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[778 NE2d 1040, 749 NYS2d 210]
In the Matter of Franz N. Stoppenbach, Jr., Respondent-Appellant, v John E. Sweeney, Appellant-Respondent, et al., Respondents.
Argued August 28, 2002;
decided August 30, 2002
POINTS OF COUNSEL
Michael A. Avella, Albany, Jeffrey T. Buley and Christopher F. Grimaldi for appellant-respondent.
I. The court should reject
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petitioner’s objections made for the failure to strictly comply with the “town or city” requirement as hypertechnical as the court witnessed first hand the speed and positive verification of the proper registration of each and every signer. (Molinari v Powers, 82 F Supp 2d 57 ; Matter of Zobel v New York State Bd. of Elections, 254 AD2d 520 ; Matter of Hurst v Board of Elections of Broome County, 265 AD2d 590 ; Matter of Pulver v Allen, 242 AD2d 398 , 90 NY2d 805 .) II. The court must reduce the signature requirements for respondent candidate due to the shortened time frame for circulating petitions. (Lerman v Board of Elections in City of N.Y., 232 F3d 135 ; Burdick v Takushi, 504 US 428 ; Kimble v County of Niagara, 826 F Supp 664 ; Blomquist v Thomson, 739 F2d 525 ; Rockefeller v Powers, 917 F Supp 155 .)
Paul M. Whitaker, Albany, for respondent-appellant.
I. All signatures identified by an incorrect town or city of the signer’s residence are invalid. (Matter of Liepshutz v Palmateer, 112 AD2d 1101 , 65 NY2d 965 ; Matter of Zobel v New York State Bd. of Elections, 178 Misc 2d 439 , 254 AD2d 520 ; Matter of Ligammari v Norris, 275 AD2d 884 ; Matter of Hurst v Board of Elections of Broome County, 265 AD2d 590 ; Matter of Pulver v Allen, 242 AD2d 398 , 90 NY2d 805 ; D’Amico v Mahoney, 115 AD2d 348 ; Matter of Finneran v Hayduk, 64 AD2d 938 , 45 NY2d 797 ; Matter of Frome v Board of Elections of Nassau County, 57 NY2d 741 ; Matter of Verity v Cristenfeld, 70 Misc 2d 310 ; Matter of Higby v Mahoney, 48 NY2d 15 .) II. Supreme Court erred in refusing to consider new or additional objections not contained in the original specifications filed with the Board of Elections. (Matter of Mazza v Board of Elections of County of Albany, 196 AD2d 679 ; Matter of Cohen v Moss, 97 AD2d 644 , 60 NY2d 558 ; Matter of Starr v Board of Elections of City of N.Y., 89 AD2d 978 ; Matter of Maguire v Bennett, 152 Misc 2d 265 ; Matter of Halloway v Blakely, 77 AD2d 932 ; Matter of Flowers v Wells, 57 AD2d 636 ; Matter of Strong v Chmielewski, 77 AD2d 943 ; Matter of Burgess v D’Apice, 112 AD2d 1058 ; Matter of Klemann v Acito, 64 AD2d 954 , 45 NY2d 796 ; Daverso v Romeo, 89 AD2d 1054 .) III. Respondent is not entitled to a reduction of the signature requirement. (Blomquist v Thomson, 739 F2d 525 .)

OPINION OF THE COURT

Objector commenced this proceeding challenging the sufficiency of the petition designating John Sweeney as the Inde

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pendence Party candidate for the House of Representatives for the 20th Congressional District. Supreme Court invalidated the petition, excluding 48 signatures for failure of the signers to accurately designate a town or city, leaving an insufficient number of valid signatures (see Election Law §§ 6-130, 6-136). The Appellate Division affirmed with two Justices dissenting. Candidate appeals as of right based on the two-Justice dissent on a question of law (CPLR 5601 [a]). Objector cross-appeals.

Section 6-130 of the Election Law provides that “a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed.” Because, in a number of instances, the petition signers did not accurately set forth the town, the candidate did not have sufficient signatures. We adhere to our precedent in Matter of Frome v Board of Elections of Nassau County ( 57 NY2d 741 , 742-743 [1982]; see also Matter of Zobel v New York State Bd. of Elections, 254 AD2d 520 [1998]) that compliance with the statute is required, as it constitutes a matter of substance and not of form. An amendment of the statute such as candidate seeks is for the Legislature to make. Moreover, in 1996, the Legislature amended section 6-130 by, among other things, eliminating the requirement of designating wards, election districts and assembly districts. Significantly, it left intact the provision requiring the designation of towns and cities (L 1996, ch 709, § 1-a).

This case is distinguishable from Molinari v Powers ( 82 F Supp 2d 57 [ED NY 2000]). There, a Federal District Court held that Election Law § 6-132 was unconstitutional in requiring a signer of a primary petition to list towns. In Molinari, however, the parties stipulated, and the record reflected, that “provisions of the New York State Election Law at issue herein impose an undue burden on access to ballot in connection with the 2000 New York State Republican Presidential Primary” ( 82 F Supp 2d at 71 ). Here the parties neither raised similar constitutional issues before the trial court nor sought to develop record evidence in support of constitutional violations, and we, therefore, have no basis for passing on constitutional issues.

Accordingly, the order of the Appellate Division should be affirmed, without costs. Objector’s cross appeal should be dismissed for lack of aggrievement.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur in per curiam opinion; Judge Graffeo taking no part.

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On appeal by appellant-respondent, order affirmed, without costs. Appeal by respondent-appellant dismissed, without costs, for lack of aggrievement.

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