Farley v. Mahoney
| Citation | 130 Misc.2d 455,496 N.Y.S.2d 607 |
| Parties | In the Matter of the Application of Victor N. FARLEY, Mary Rita Miller and Philip D. Smolinski, members of the Committee to Fill Vacancies for the Republican Party pursuant to the provisions of Section 6-148 of the Election Law, and Victor N. Farley, Chairman of the Erie County Republican Party Committee and as agent for George L. Clarke, Jr., New York State Republican Chairman, and Rosemarie LoTempio, Petitioners, v. Edward J. MAHONEY and Philip D. Smolinski, Commissioners of Elections, constituting the Board of Elections in the City of Buffalo, County of Erie and State of New York, and Archie Amos, Aggrieved Candidate, Respondents. |
| Decision Date | 23 October 1985 |
| Court | United States State Supreme Court (New York) |
Godinho & Hargesheimer, Elbert Hargesheimer, III, Hamburg, of counsel, for petitioners.
Eugene F. Pigott, Jr., Erie County Atty., by Roger D. Avent, Buffalo, for respondent Bd. of Elections.
Burd & McCarthy, Timothy A. McCarthy, Buffalo, of counsel, for aggrieved candidate Archie Amos.
This action was commenced by the above mentioned Petitioners pursuant to the authority of Article 16 of the Election Law, seeking to compel the Respondent, Erie County Board of Elections to validate a Certificate of Nomination and Acceptance filed by the Petitioner, Rosemarie LoTempio, as the candidate of the Republican Party for the public office of council member, in the University Ward of the City of Buffalo, for the November 5, 1985 general election.
The essential facts are not in dispute. Republican designating petitions were not filed with the Erie County Board of Elections for the Republican nomination to the councilmanic position in the University Ward. Similarly, no petition was filed requesting an opportunity to write in a name for the Republican nomination to the position. Therefore, as no candidate was so designated, the primary election of September 10, 1985 resulted in the absence of a nominated candidate for the Republican Party.
Thereafter, on or about the 17th day of September, 1985, a majority of the Committee to Fill Vacancies for the New York State Republican Party filed a certificate with the Erie County Board of Elections pursuant to the provisions of Section 6-148 of the Election Law, purporting to nominate Petitioner LoTempio as the Republican candidate for council member in the City of Buffalo University Ward. Petitioner LoTempio filed an acceptance of said nomination as the Republican candidate. It should be noted that Respondent Amos contends that the acceptance is invalid, in any event.
Petitioners claim that they acted under the authority of Rule 20 of the New York State Republican Committee which provides, in part:
" In the event that there shall exist a vacancy in any designation or nomination by the Republican Party for any public office, or in any party position, the Chairman of the New York Republican State Committee upon the request of the appropriate County Chairman or Chairmen is authorized and empowered to fill such vacancy and to file a certification thereof in accordance with this Rule, notwithstanding that there may be an alternative method whereby such vacancy might otherwise be filled."
On the return date of Petitioners' Order to Show Cause relating to the above mentioned petition, Timothy McCarthy, Esq., attorney on behalf of Archie Amos, the candidate of the Democratic Party for council member in the University Ward, appeared before this Court seeking to be joined as a party to the action, and thereafter, opposing the relief requested by the Petitioner on various grounds. This Court, after arguments of counsel on the issue of joinder, entered an Order dated October 21, 1985 granting the motion of the applicant, Archie Amos, under the permissive joinder provision of the Civil Practice Laws and Rules, Section 1002.
As mentioned above, the essential facts in these proceedings are not an issue and, therefore, the necessity for testimony of any of the parties or other witnesses was obviated. The issues presented in this Court involve questions of law, statutory interpretation and precedential case law and the Court has reviewed all documentary evidence, cases and memoranda of law provided by the counsel for the respective parties.
Petitioners argue that no nomination was made in the primary election for the Republican endorsement for the office of council member in the University Ward in the City of Buffalo and that Section 6-156 of the Election Law provides for nominations other than by way of the primary election, as follows:
" 'Certificates of nominations, made otherwise than at a primary, shall contain the name of the political party making the nomination, the title of the office for which such person is nominated, the name and residence of the nominee, the committee, if any, appointed to fill vacancies in the nominations, and shall be signed by the presiding officer and a secretary of the body making the nomination.' "
Counsel for the Petitioner further argues that in accordance with rules of the Republican State Committee, the Chairman may make a nomination where a vacancy exists in a public office and that in accordance with its own rules, the New York State Republican Committee prepared this "Certificate of Nomination for the City of Buffalo, University Ward", filed same with the Board of Elections and that Rosemarie LoTempio accepted her "acceptance of designation". Further, the Erie County Board of Elections received a duly executed "Certificate of Authorization" from New York State Republican Committee. Petitioner contends that no objections have been filed and no challenge has been made to the validity of these documents. Further, it is contended that Petitioner Rosemarie LoTempio is the duly qualified, and aggrieved candidate, pursuant to Section 16-102 of the Election Law. Therefore, Petitioner requests an order of this Court validating the Certificate of Nomination and Acceptance of Petitioner LoTempio as the Republican candidate, and for further judgment directing the Board of Elections to place the name of Rosemarie LoTempio upon the offical ballots and voting machines. Respondents argue that the Petitioners have failed to state a cause of action since neither Section 6-148, nor any other provision of the Election Law of the State of New York permits a party to file a Certificate of Nomination pursuant to the provisions of the Election Law in such a case. Further, it is argued that Section 6-148 is inapplicable to the instant case since that section describes filling of vacancies in a designation or nomination caused only by specific events--i.e.: death, disqualification, or a tie vote at the primary election.
The facts in the instant case do not qualify for this treatment since none of these events are present, and no vacancy occurs in the absence of these specific events. In anticipation of Respondents' arguments, Petitioners' counsel ably but erroneously attempts to distinguish the facts in this case from the authority of Dyte v. Lawley, 31 Misc.2d 182, 220 N.Y.S.2d 165, (aff'd.) 14 A.D.2d 827, 218 N.Y.S.2d 533 (4th Dept.) which held that there was no vacancy under the ...
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