Johnson v. Boylston

• Decision Date: 08 April 1986
• Citation: 501 N.Y.S.2d 574,131 Misc.2d 717
• Parties: , 31 Ed. Law Rep. 1238 In the Matter of the Application of Charlie L. JOHNSON, Petitioner, v. Frances M. BOYLSTON, et al., Respondents, etc. In the Matter of the Application of Julius LIBLICK, Petitioner v. Charlie L. JOHNSON, Alleged Candidate, and Matteo Lumetta, et al., Respondents, etc.
• Court: New York Supreme Court

Page 574

501 N.Y.S.2d 574

131 Misc.2d 717, 31 Ed. Law Rep. 1238

In the Matter of the Application of Charlie L. JOHNSON, Petitioner, v. Frances M. BOYLSTON, et al., Respondents, etc.

In the Matter of the Application of Julius LIBLICK, Petitioner v. Charlie L. JOHNSON, Alleged Candidate, and Matteo Lumetta, et al., Respondents, etc.

Supreme Court, Special Term Kings County, Part A.

April 8, 1986.

Robert Allan Muir, Jr., Staten Island, for Charlie L. Johnson.

Michael D. Benjamin, New York City (Richard Runis, of counsel), for Julius Liblick.

SLAVIN, Justice.

The first proceeding captioned above was instituted by Charlie L. Johnson, to validate his candidacy for Member of Community School Board, District 19, and the second proceeding was instituted by a citizen objector to invalidate the nominating petition of the said Charlie L. Johnson.

Both attorneys have stipulated that the report of the clerks of the Board of Elections, as will be referred to below, is to be adopted by the court and no further line-by-line proceeding will take place, either to revalidate signatures or to invalidate other signatures. The matter is submitted on a question of law as to whether or not an objector must be present at all hearings conducted by the Board of Elections.

The objector cites Matter of Dallinger (In re Bossi), 169 Misc. 150, aff'd 255 A.D. 721, 6 N.Y.S.2d 749). That 1938 case holds that an objector must be present at all hearings as a prerequisite to having the Board pass on the merits of the objections. It follows that if the objections are dismissed by the Board for failure to comply with appearance, time and service restrictions (as distinguished from a line-by-line count), the objector has no standing to institute the proceeding under Section 6-116 of the Election Law.

From an examination of the papers filed with the Board of Elections in the City of New York and from records as maintained under the supervision of Betty Dolin, Executive Director, the "facts" involving this controversy are as follows:

The candidate, Charlie L. Johnson, duly filed a nominating petition seeking to be a candidate for Member of Community School Board, 19th District. Thereafter, timely objections thereto were filed by one Julius Liblick.

Following the normal procedure, specifications of objections were timely served and filed by the objector. The clerks of the Board of Elections (Brooklyn office) thereafter conducted their line-by-line review of the nominating petition and found that the nominating petition contained 240 signatures, of which 94 were invalid (79 not registered, 9 out of district and 6 subscribing witnesses not registered), leaving a net number of valid signatures of 146, which is less than the required 200 signatures.

Complying with the Board's procedure, the clerks prepared a report dated March 10, 1986, which was presented to the Commissioners of the Board of Elections at its en banc hearing on March 14, 1986. At that time, the objector did not appear, either in person or by attorney. The candidate was represented by his attorney, Mr. Robert Allan Muir, Jr., who called for the production of proof of service of the specifications of objections. It was at this point that problems arose.

There is no question that the proof of service had been filed with the Board of Elections; however, the clerk of the Board, Mr. Michael Sternlieb, in charge of Brooklyn papers, did not hear this matter being called and, accordingly, did not then present the proof of service. The Board therefore dismissed the objections for "No Proof of Service" and declared the candidacy valid. Evidently, on Monday, March 17th, this failure by the Board's clerk was called to the attention of the Board, which scheduled a second hearing on March 18, 1986. Again, only Mr. Muir, representing the candidate, was present. On this second hearing, the Board reversed its prior decision and adopted the clerk's report and invalidated the nominating petition. The basis for this action was that the proof of service had been timely...