Palla v. Suffolk County Bd. of Elections

• Decision Date: 13 December 1971
• Citation: 38 A.D.2d 84,327 N.Y.S.2d 739
• Parties: James PALLA et al., Respondents, v. SUFFOLK COUNTY BOARD OF ELECTIONS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 739

327 N.Y.S.2d 739

38 A.D.2d 84

James PALLA et al., Respondents, v. SUFFOLK COUNTY BOARD OF ELECTIONS et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 13, 1971.

George W. Percy, Jr., County Atty. (Melvyn Tanenbaum, Huntington, of counsel), for appellants.

Burt Neuborne, and Bruce J. Ennis, New York City, for respondents.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hershowitz and A. Seth Greenwald, New York City, of counsel), appearing pursuant to section 71 of the Executive Law and as amicus curiae.

Before HOPKINS, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.

BENJAMIN, Justice.

The Board of Elections of Suffolk County and its Commissioners of Election appeal from that portion of an order of the Supreme Court, Suffolk County, which granted relief on the petition, as to 64 of a total of 81 petitioners, directing that they be allowed to register and vote in the November 2, 1971 general election. The proceeding was brought under section 331 of the Election Law. These 64 petitioners are all students at the Stony Brook campus of the State University residing in dormitories in Election District No. 1 of the Town of Brookhaven in Suffolk County.

This proceeding is the sequel to a prior similar proceeding against the appellants, instituted also in the Supreme Court, Suffolk County, on a petition dated October 7, 1971. That proceeding was entitled 'Blumenthal v. Suffolk County Board of Elections'. Attached to the petition therein were affidavits of eight of the petitioners and affirmations of 168 other petitioners, all student dormitory residents who had been enrolled as such at Stony Brook for from one to four years, claiming wrongful denial of voting registration by the appellants. There were other representations of fact and stipulations to the effect that all the petitioners were citizens of the United States and were over the age of 18 years or would be before November 2, 1971; were living on the Stony Brook campus and had lived there for at least three months or will have by November 2, 1971; considered themselves residents of Suffolk County; intended upon graduation to establish a residence apart from their parents; had not been physically present on the campus during the summer of 1971; had no dormitory accommodations set aside for their use during that period; and had been refused registration by the appellants when they attempted to register on October 1 or 2, 1971 to vote in Suffolk County.

The prior proceeding came before Mr. Justice D. Ormond Ritchie, who ruled on it on October 22, 1971. Finding that each of the 176 petitioners before him had been denied registration by the appellants under section 151 of the Election Law, which the appellants interpreted as barring a student at any institution of learning from gaining or losing residence while in that status, Justice Ritchie stated that that section does not impose ineligibility to register or vote because of student status solely and ruled that the Board of Elections had erred when it summarily rejected the petitioners' applications. He directed that the rejected 176 applicants reapply for registration as voters on October 26, 27, 28 and 29, 1971, and that they be required at that time to answer a questionnaire containing 22 questions propounded by him and to swear to the truth of their answers. He directed also that, in the case of any applicant who was a citizen of the United States, over 18 years of age, and had resided for a period of three months or more at the State University at Stony Brook, he or she was potentially eligible for registration as a voter in Election District No. 1 of Brookhaven; and that the answers to the questions propounded to each applicant should determine his or her eligibility. Eighty-three of the petitioners submitted filled-out questionnaires with sworn answers to the Board of Elections. The Board accepted for registration only two of the eighty-three, a married couple living in the Stony Brook dormitory, and rejected the remaining eighty-one.

The rejected eighty-one then sought supplemental relief by way of the instant proceeding. This proceeding bears a different caption from the original proceeding, though all the petitioners herein were participants in the original proceeding. This proceeding came before Mr. Justice Frank P. DeLuca, who found, without taking testimony, that the sworn affidavits of the petitioners who claimed Stony Brook as their place of residence qualified such of them who had not registered elsewhere to vote in Election District No. 1; and directed that the 64 petitioners who had not registered to vote elsewhere should be registered and allowed to vote in that district in the November 2 election. It is from this portion of Justice DeLuca's order that the appeal has been taken.

Although the 1971 election is now a matter of history, there still remains the meaningful issue of the successful petitioners' right to register to vote in Election District No. 1 of Brookhaven for succeeding elections. While the petitioners and the appellants and the Attorney General appearing as Amicus address themselves in their arguments to issues of the constitutionality of section 151 of the Election Law and its basis in section 4 of article II of the State Constitution, it appears that the sole issue in the case raised by the pleadings before the Special Term and the decision there which is the basis for this appeal is whether the Board of Elections ruled properly when it rejected the petitioners' applications for registration to vote on the basis of the Board's finding of nonresidency in fact in the district in question, despite the sworn affidavits submitted by the students.

Section 151 of the Election Law provides that for the purpose of registering and voting no person shall be deemed to have...