Amedure v. State
| Decision Date | 01 November 2022 |
| Docket Number | CV–22–1955 |
| Parties | In the Matter of Rich AMEDURE et al., Respondents—Appellants, v. STATE of New York et al., Appellants—Respondents, and Minority Leader of the Senate of the State of New York et al., Respondents—Appellants, and New York State Board of Elections, Respondent. New York Civil Liberties Union et al., Proposed Intervenors—Appellants—Respondents. |
| Court | New York Supreme Court — Appellate Division |
210 A.D.3d 1134
178 N.Y.S.3d 220
In the Matter of Rich AMEDURE et al., Respondents—Appellants,
v.
STATE of New York et al., Appellants—Respondents,
and
Minority Leader of the Senate of the State of New York et al., Respondents—Appellants,
and
New York State Board of Elections, Respondent.
New York Civil Liberties Union et al., Proposed Intervenors—Appellants—Respondents.
CV–22–1955
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 1, 2022
Decided and Entered: November 1, 2022
Letitia James, Attorney General, Albany (Sarah L. Rosenbluth of counsel), for State of New York and another, appellants-respondents.
E. Stewart Jones Hacker Murphy, LLP, Troy (Benjamin F. Neidl of counsel), for Senate of the State of New York and others, appellants-respondents.
Hodgson Russ LLP, Albany (Christopher Massaroni of counsel), for Assembly of the State of New York and others, appellants-respondents.
Messina, Perillo & Hill, LLP, Sayville (John Ciampoli of counsel) and Fusco Law Office, Albany (Adam Fusco of counsel), for Rich Amedure and others, respondents-appellants.
DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel), for Minority Leader of the Senate of the State of New York and another, respondents-appellants.
New York State Board of Elections, Albany (Brian L. Quail of counsel), for New York State Board of Elections, Democratic Election Commissioners, respondents.
New York State Board of Elections, Albany (Kevin G. Murphy of counsel), for New York State Board of Elections, Republican Election Commissioners, respondents.
New York Civil Liberties Union Foundation, New York City (Perry Grossman of counsel), for New York Civil Liberties Union and others, proposed intervenors-appellants-respondents.
Elias Law Group LLP, Washington, DC (Aria C. Branch of counsel, admitted pro hac vice) and Dreyer Boyajian LLP, Albany (James R. Peluso of counsel), for DCCC and others, proposed intervenors-appellants-respondents.
New York State United Teachers, Latham (Robert T. Reilly of counsel), for New York State United Teachers, amicus curiae.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Fisher, JJ.
MEMORANDUM AND ORDER
Per Curiam.
(1) Appeal from two orders of the Supreme Court (Dianne N. Freestone, J.),
entered October 17, 2022 in Saratoga County, which, in a combined proceeding pursuant to Election Law article 16 and action for declaratory judgment, denied proposed intervenors' motions to intervene, (2) cross appeals from an order of said court, entered October 21, 2022 in Saratoga County, which, among other things, granted petitioners' application to declare that Laws of 2021, chapter 763 is unconstitutional and dismissed petitioners' application to declare that Laws of 2022, chapter 2 (which amended L 2020, ch 139, as codified in Election Law § 8–400 ) to be unconstitutional, (3) appeal from an amended order of said court, entered October 25, 2022 in Saratoga County, which granted petitioners' motion for a preservation order, and (4) nine motions for various relief.
Petitioners – the New York State Republican Party and its chair, the New York State Conservative Party and its chair, the chair of the Saratoga County Republican Party, the Saratoga County Republican Committee, two commissioners of local boards of elections, a member of the New York State Assembly, a candidate for the State Senate and a registered voter – commenced this hybrid action/proceeding against respondents seeking, among other things, a declaration that Laws of 2021, chapter 763, which amended the process upon which absentee ballots are canvassed and counted pursuant to Election Law § 9–209, is unconstitutional. Petitioners also sought a declaration that Laws of 2022, chapter 2 (which amended L 2020, ch 139, as codified in Election Law § 8–400 ) is unconstitutional. The amendment in Laws of 2020, chapter 139 expanded the definition of illness for purposes of applying for an absentee ballot to include the situation where a voter is unable to appear
at the polling place because there is a risk of contracting or spreading a communicable disease. The amendment's original sunset clause of January 1, 2022 was extended to December 31, 2022 (L 2022, ch 2, § 1). Petitioners also requested injunctive relief enjoining the enforcement of the challenged statutory provisions.
Respondents State of New York, Governor of the State of New York, New York State Board of Elections, Senate of the State of New York, Majority Leader and President Pro Tempore of the Senate, Assembly of the State of New York and Speaker of the Assembly (hereinafter collectively referred to as respondents) moved to dismiss on several grounds, including that petitioners lacked standing and that the proceeding/action is barred by the doctrine of laches.
Two groups of proposed intervenors – the DCCC, a candidate for Congress, the New York State Democratic Committee and its chair, the Wyoming County Democratic Committee and its chair and four registered voters who have applied for absentee ballots, and the New York Civil Liberties Union, Common Cause New York and three registered voters – moved to intervene. In two orders entered October 17, 2022, Supreme Court denied both motions to intervene, but permitted the proposed intervenors to participate as amici curiae. The proposed intervenors appeal from those orders.
In an order entered October 21, 2022, Supreme Court partially granted petitioners' requested relief as to Laws of 2021, chapter 763, declaring it unconstitutional. The court, however, granted respondents' motion to dismiss petitioners' causes of action as to Election Law § 8–400(1)(b), finding that it was constrained to follow a recent Fourth Department decision that found that Election Law § 8–400 was constitutional ( Ross v. State of New York, 198 A.D.3d 1384, 152 N.Y.S.3d 864 [4th Dept. 2021] ). Finally, in an amended order entered
October 25, 2022, the court granted petitioners' motion for a preservation order, ordering that the State Board of Elections direct all local boards of elections to preserve and hold inviolate all absentee, military, special, special federal and affidavit ballots, as well as all voting records and election materials, until the date upon which a post-election day canvass is scheduled. Respondents and the proposed intervenors appeal from that part of the October 21, 2022 order that denied the motion to dismiss the petition/complaint and granted petitioners' request for a declaration that Laws of 2021, chapter 763 is unconstitutional, as
well as the preservation order. Petitioners and respondents Minority Leaders of the Senate and Assembly cross-appeal from the order entered October 21, 2022.
Initially, we find that the motions to intervene should have been granted.1 "Intervention is liberally allowed by courts, permitting persons to intervene in actions where they have a bona fide interest in an issue involved in that action" ( Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 [1st Dept. 2010] [citation omitted]; accord Matter of Jermain, 122 A.D.3d 1175, 1177, 997 N.Y.S.2d 783 [3d Dept. 2014] ). We agree with...
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Shiroff v. N.Y.S. Bd. of Elections
...of an election in a more expedited manner and to ensure that every valid vote by a qualified voter is counted" ( Amedure v. State, 210 A.D.3d 1134, 178 N.Y.S.3d 220 [3d Dept. 2022] quoting Sponsor's Mem, Bill Jacket, L 2021, ch 763; Laws 2021, Chapter 763). Pursuant to the amendments, all a......