Hurley v. Pub. Campaign Fin. & Election Comm'n
| Decision Date | 12 March 2020 |
| Docket Number | E169547/2019 |
| Citation | 129 N.Y.S.3d 243,69 Misc.3d 254 |
| Parties | Linda HURLEY and Rev. Rex Stewart, Duly Registered Voters in the State of New York; David Buchwald, Robert Carroll, Harvey Epstein, Robert Jackson, Walter Mosley, and Phil Steck, Individually and as Qualified Candidates for Public Office Under the Laws of the State of New York; Anita Thayer and Jonathan Westin, Individually and as Co-Chairs of the New York State Committee of the Working Families Party and Members of the Executive Board of the New York State Committee of the Working Families Party; the New York State Committee of the Working Families Party; and the Executive Board of the New York State Committee of the Working Families Party, Plaintiffs, v. The PUBLIC CAMPAIGN FINANCING AND ELECTION COMMISSION; Mylan Denerstein, Jay Jacobs, DeNora Getachew, John Nonna, Rosanna Vargas, Crystal Rodriguez, Henry Berger, David Previte, and Kimberly Galvin, as Commissioners of the Public Campaign Financing and Election Commission; the State Of New York; the Board of Elections of the State of New York; Peter S. Kosinski, Douglas A. Kellner, Andrew J. Spano, and Gregory P. Peterson, as Commissioners of the Board of Elections of the State of New York; the Governor of the State of New York; the Assembly of the State of New York; the Speaker of the Assembly; the Minority Leader of the Assembly; the Senate of the State of New York; the Majority Leader of the Senate; and the Minority Leader of the Senate , Defendants. |
| Court | New York Supreme Court |
Richard L. Brodsky, Esq., Attorney for the Plaintiffs, 2121 Saw Mill River Road, White Plains, New York 10607
Craig R. Bucki, Esq., Kenneth A. Manning, Esq., Samuel S. Borbor-Sawyer, Esq., Phillips Lytle, LLP, Attorneys for Defendants The Assembly of the State of New York and the Speaker of the Assembly of the State of New York, Hon. Carl E. Heastie, One Canalside, 125 Main Street, Buffalo, New York 14203
Eric J. Hecker, Esq., John R. Cuti, Esq., Cuti Hecker Wang, LLP, Attorneys for Defendants The New York State Senate and the Senate Majority Leader Hon. Andrea Stewart-Cousins, 305 Broadway, Suite 607, New York, New York 10007
James M. McGuire, Esq., Daniel M. Horowitz, Esq., Holwell Schuster & Goldberg, LLP, Attorney for Defendants The Public Campaign Financing and Election Commission and Mylan Denerstein, Jay Jacobs, Denora Getachew, John Nonna, Rosanna Vargas, Crystal Rodriguez, Henry Berger as Commissioners of the Public Campaign Financing and Election Commission of the State of New York, 425 Lexington Ave., 14th floor, New York, New York 10017
Hon. Letitia James, Attorney General of the State of New York by: Chris Liberati-Conant, Esq., Assistant Attorney General, Attorneys for Defendant The State of New York, The Capitol, Albany, New York 12224
Brittany L. Penberthy, Esq., Vandette Penberthy, LLP, Attorneys for Defendants Douglas A. Kellner and Andrew J. Spano as Commissioners of the Board of Elections of the State of New York 227 Niagara Street, Buffalo, New York 14201
Michael Y. Hawrylchak, Esq., Cornelius D. Murray, Esq., O'Connell & Aronowitz, Attorneys for Defendants Kimberly Galvin as Commissioner of the Public Campaign Financing and Election Commission of the State of New York and Assembly Minority Leader, Hon. William A. Barclay (replacing Brian Kolb) 54 State Street, Albany, New York 12207
Jeffrey T. Buley, Esq., Brown Weinraub, Attorneys for Defendants David Previte as Commissioner of the Public Campaign Financing and Election Commission of the State of New York and Senate Minority Leader, Hon. John J. Flanagan, 50 State Street, Fourth Floor, Albany, New York 12207
James P. Domagalski, Esq., Barclay Damon, LLP, Attorneys for Defendants Peter S. Kosinski and Gregory P. Peterson as Commissioners of the Board of Elections of the State of New York, The Avant Building, 200 Delaware Avenue, Buffalo, New York 14202
Cameron J. Macdonald, Esq., Government Justice Center, Amicus Curiae, 30 S. Pearl Street, Suite 1210, Albany, New York 12054
DECISION & ORDER
By Notice of Motion, Defendants The Assembly of the State of New York; the Speaker of the Assembly of the State of New York Hon. Carl E. Heastie; The New York State Senate, the Senate Majority Leader Hon. Andrea Stewart-Cousins; The Public Campaign Financing and Election Commission; Mylan Denerstein, Jay Jacobs, Denora Getachew, John Nonna, Rosanna Vargas, Crystal Rodriguez, Henry Berger as Commissioners of the Public Campaign Financing and Election Commission; The State of New York; and Douglas A. Kellner and Andrew J. Spano as Commissioners of the Board of Elections of the State of New York (hereinafter and collectively, the "Moving Defendants") moved to dismiss the Plaintiffs' Complaint pursuant to various provisions of CPLR § 3211. In response, Defendants David Previte and Kimberly Galvin as Commissioners of the Public Campaign Financing and Election Commission, Assembly Minority Leader Hon. William A. Barclay (replacing Brian Kolb) and Senate Minority Leader Hon. John J. Flanagan (hereinafter and collectively, the "Minority Defendants") have cross-moved for Summary Judgment on their Cross-Claims which was adopted and joined in by Defendants Peter S. Kosinski and Gregory P. Peterson as Commissioners of the Board of Elections of the State of New York and Plaintiffs herein seeking a declaratory judgment, as a matter of law, that Part XXX of the Laws of 2019, Chapter 59 (hereinafter, the "Statute") is unconstitutional in all respects. In addition, the Court granted the Government Justice Center, Inc.'s application for leave to participate in this proceeding as amicus curiae on December 10, 2019.
Previously, this case was originally assigned to the Hon. Richard C. Kloch, Sr. Judge Kloch held a preliminary conference on September 9, 2019 and a Scheduling Order was issued. Pursuant to the Scheduling Order, six (6) Defendants filed Answers. The Minority Defendants filed Answers with Cross Claims. The Defendants, the New York State Senate and the Majority Leader of the Senate and the Assembly of the State of New York and the Speaker of the Assembly, in lieu of Answers to the Complaint, filed Motions to Dismiss pursuant to CPLR § 3211. The case was reassigned to this Court on October 1, 2019. On November 12, 2019, at the request of the Plaintiffs and after notice to all parties was given, the Court converted the Motions to Dismiss to Motions for Summary Judgment pursuant to CPLR § 3211(c). Further, the prior Scheduling Order was amended to give the parties an opportunity to submit additional papers to develop an appropriate record. The parties submitted additional papers in support of their position but no pleadings were amended by the Plaintiffs nor did the Moving Defendants submit verified Answers. The oral argument on the motions was rescheduled from November 12, 2019 to December 12, 2019.
Initially, the Court finds that The Public Campaign Financing and Election Commission of the State of New York (hereinafter, the "Commission") lacks the capacity to be sued and therefore, must be dismissed from this suit (see , Cmty. Bd. 7 v. Schaffer , 84 N.Y.2d 148, 615 N.Y.S.2d 644, 639 N.E.2d 1 [1994] ). Further, the Court finds that Kimberly Glavin and David Previte from the Commission as well as New York State Board of Election Commissioners Peter S. Kosinski and Gregory P. Peterson lack capacity and standing to assert their Cross-Claims in this action (see , Cmty. Bd. 7 v. Schaffer , supra ; Pooler v. Public Service Com ., 43 N.Y.2d 750, 401 N.Y.S.2d 1009, 372 N.E.2d 797 [1977] ; Matter of State Univ. of NY v. Town of Amherst , 81 A.D.3d 1476, 916 N.Y.S.2d 872 [4th Dept. 2011] ). Further, Assembly Minority Leader Hon. William A. Barclay and Senate Minority Leader Hon. John J. Flanagan failed to establish that there was nullification of their votes or usurpation of their power and thus, they also lack standing to sue (see , Silver v. Pataki , 96 N.Y.2d 532, 730 N.Y.S.2d 482, 755 N.E.2d 842 [2001] ; Matter of Colton v. Town Bd. of Town of Amherst , 72 A.D.3d 1638, 899 N.Y.S.2d 498 [4th Dept. 2010] ). As result, the Court must dismiss, as a matter of law, the Cross-Claims asserted by the Minority Defendants (joined in by the New York State Board of Election Commissioners Peter S. Kosinski and Gregory P. Peterson as well as the Plaintiffs).
The record reflects that on April 1, 2019, the New York State Legislature (hereinafter, "Legislature") approved a budget that included the passage of the Statute which established the Commission. Thereafter, on July 3, 2019, the Governor announced the appointment of nine (9) commissioners. The Commission consisted of two members appointed by the Governor; two members appointed by the Senate Majority Leader; two members appointed by the Speaker of the Assembly; one member appointed by the Senate Minority Leader; one member appointed by the Assembly Minority Leader; and the final appointment was jointly made by the Governor, the Senate Majority Leader and the Speaker of the Assembly. The qualifications and affiliations of each of the members of the Commission are set forth on pages 1 and 2 of the Commission's report.
The Commission was tasked with making recommendations which have the force of law and which would supersede existing law. The Statute empowered the Commission to "examine, evaluate and make recommendations for new laws with respect to how the State should implement...a system of voluntary public financing for state legislature and statewide public offices...". In addition, the Commission was empowered to review and recommend changes to certain aspects of the State Election Law and the State Public Finance Law. Such recommendations by the Commission would become law unless modified or abrogated by statute prior to December 22, 2019 by the Legislature. The Commission issued its report on December 1, 2019 and no part of the report was modified or abrogated by statute nor by any other legislative...
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