Salem v. Petsas
| Decision Date | 10 September 2021 |
| Docket Number | 2021-53689 |
| Parties | In the Matter of the Application of Sarah A. SALEM, Aggrieved Candidate, and Vincent Pedi, Objector, Petitioners, v. Christopher D. PETSAS and Jenna A. Liguori, Respondent-Candidates, and Michael McCormack and Theresa Hoffman, Respondents, The Dutchess County Board of Elections, and Hannah Black and Erik Haight, Commissioners of Elections, Respondents |
| Court | New York Supreme Court |
The Petitioners are represented by: Michael Treybich, Esq., 420 Lexington Avenue, Room 300, NY, NY 10170, (212) 390-1755
Respondent Haight is represented by: John Ciampoli, Esq., 285 West Main Street, Suite 203, Sayville, NY 11782, (631) 582-9422
Respondent Democratic BOE Commissioner (Hannah Black) is represented by: Daniel Miller, Esq., PO Box 259, Fishkill, NY 12524, (845) 440-6497
Sarah Salem is a member of the Democratic Party, and the incumbent City of Poughkeepsie Council Member At-Large. Christopher Petsas is also a member of the Democratic Party, and is the incumbent City of Poughkeepsie First Ward Council Member.
Earlier this year, Petsas challenged Salem in the Democratic Party Primary for the Council Member at Large nomination. Salem won that primary election, and will be on the ballot in the November general election as the Democratic candidate.
Jenna Liguori was duly nominated and designated as the Republican candidate for City of Poughkeepsie Council Member at Large. However, Liguori has signed documents disqualifying herself as a candidate because she has moved out of the City of Poughkeepsie, and will be unable to satisfy the qualifications of that office if she is elected.
The Republican Party has filed a Certificate of Substitution by Party Committee After Disqualification with the Dutchess County Board of Elections ("DCBOE"). The Certificate of Substitution nominates and designates Petsas as the Republican candidate for Council Member at Large, to fill the vacancy created by Liguori's disqualification.
The Certificate of Substitution has been signed by Michael McCormack and Theresa Hoffman, as Presiding Officer and Secretary of the Republican Committee. The Certificate of Substitution is accompanied by a Consent by Substituted Candidate, signed by Petsas and accepting the Republican nomination for Council Member at Large.
Vincent Pedi is a registered voter in the City of Poughkeepsie who, along with Salem, has filed general and specific objections to the Certificate of Substitution and Consent. By their Petition, Salem and Pedi now seek a judicial declaration that there is a vacancy in the Republican nomination/designation for Council Member at Large by reason of Liguori's disqualification. Petitioners also seek a judicial declaration that the Certificate of Substitution and Consent by Substituted Candidate are null and void because they were not filed with the DCBOE within 10 days of Liguori's disqualification as required by Election Law § 6-158(8). Finally, Petitioners seek a judicial declaration that the Certificate of Substitution and Consent are null and void because McCormack and Hoffman also failed to timely file a certificate authorizing the nomination or designation of Petsas (a non-Republican) as the Republican candidate for Council Member at Large, as required by Election Law § 6-120(3).
The Court signed an Order to Show Cause on August 27, 2021, directing Petitioners to serve the respondents by August 30, 2021, and directing the parties to appear for a hearing on September 3, 2021. Petitioners subsequently filed affidavits of service establishing prima facie compliance with these service requirements. By request and consent of the parties, the September 3 hearing was adjourned to September 8, 2021. The parties also agreed that all responsive papers to the Petition would be filed no later than September 7, 2021.
Hannah Black is the Democratic Commissioner of the DCBOE. On September 7, 2021, Black's counsel filed a Verified Answer and Memorandum of Law supporting the Petition.
Erik Haight is the Republican Commissioner of the DCBOE. On September 7, 2021, Haight's counsel filed a combined Verified Answer and Cross-Petition. The Answer opposed the Petition, and asserted four Affirmative Defenses, Objections, and Motions to Dismiss seeking dismissal of the Petition. By that same document, Haight sought leave to proceed with the Cross-Petition, which seeks an Order compelling the Commissioners of the DCBOE to meet and to certify that there is a vacancy in the Republican nomination for Council Member at Large.
The hearing was conducted on September 8, 2021. Haight and Black attended the hearing, and were represented by counsel. Salem and Pedi did not attend the hearing, but were represented by counsel. McCormack and Petsas attended the hearing, but were not represented by counsel. Liguori and Hoffman did not attend the hearing.
During the hearing, I granted Haight's request for leave to proceed with the Cross-Petition. I also granted the requests of McCormack and Petsas for permission to join in the Cross-Petition. Given the time-sensitive nature of this proceeding, I also dispensed with any further written submissions, and instead provided Petitioners’ counsel and Black's counsel with the opportunity to respond to the Cross-Petition during the hearing.
Counsel and the unrepresented parties who attended the hearing agreed to proceed based upon a series of Stipulated Exhibits and Stipulated Facts. At Petitioners’ request, I also took judicial notice of the City of Poughkeepsie Charter. And at Haight's request, I took judicial notice of the 2021 Official Political Calendar published by the New York State Board of Elections. Finally, I heard oral arguments in support of, and in opposition to, the Petition and Cross-Petition.
The following constitutes the Decision, Order and Judgment of the Court based upon the stipulated evidence and the applicable law, and giving thoughtful consideration to the arguments advanced by the parties.
A person shall not be designated or nominated for public office who, if elected, will not meet the constitutional or statutory qualifications of that office. ( Election Law § 6-122[3] ). Under state law, this means that a nominated candidate for city office must be a resident of that city at the time of the general election ( Public Officers Law § 3[1] ). There is no requirement that the candidate be a resident at the time of nomination, nor any requirement that the candidate be a resident during the campaign leading up to the general election. Rather, to meet the state law qualifications, the candidate must only satisfy this residency requirement at the time of the general election. ( Matter of Keith v. King , 220 A.D.2d 471, 632 N.Y.S.2d 582 [2d Dept. 1995] ; Matter of Clark v. McCoy , 196 A.D.2d 607, 601 N.Y.S.2d 190 [2d Dept. 1993] ).
The City of Poughkeepsie Charter imposes an additional qualification on Council Members, including the Council Member at Large. Specifically, Section 2.01 of the Charter states, in pertinent part: "At the time of his or her nomination and election, and throughout his or her term of office ... the council member elected at-large shall be and remain a qualified elector of the city." Section 1.04(y) of the Charter defines a "qualified elector" as "a person qualified to cast a ballot in a city election."1
It is undisputed that Liguori was duly nominated as the Republican candidate for Council Member at Large in the general election. It is also undisputed that Liguori was both a resident and an elector of the City of Poughkeepsie at the time of her nomination. There is also no question that the period of time to challenge that nomination has long since expired (Elections Law § 16-102[2] ).
Petitioners argue that, while Liguori was capable of meeting the qualifications of this office at the time of her nomination, she no longer meets them because she has moved out of the area. Specifically, Petitioners argue that Liguori has moved to Monroe County, that she has registered to vote there, and that she has been purged from the voting rolls in Dutchess County. Therefore, Petitioners argue that Liguori is disqualified as a candidate for Council Member at Large because she will not be able to meet the qualifications of that office at the time of the general election.
Respondents do not dispute that Liguori moved out of the area at some point after the time to challenge her nominating petitions had expired. And given the disqualification documents and substitution documents that Respondents have filed with the DCBOE (Stipulated Exhibits 4-7), no plausible grounds can be articulated to dispute Liguori's disqualification at this point.
A vacancy in a nomination caused by a candidate's disqualification may be filled by the filing of a Certificate of Substitution and Consent ( Election Law § 6-148 ). While Petitioners assert that the Certificate of Substitution and Consent were not timely filed in this case, they do not challenge the facial sufficiency of those documents.
Accordingly, the legal dispute surrounding Liguori's disqualification centers on the ten (10) day period provided by law for the filing of a Certificate of Substitution and Consent upon the disqualification of a nominated candidate. Specifically, under the time limits imposed by law, "a certificate to fill a vacancy in a nomination caused by death or disqualification shall be filed not later than ten days after such death or disqualification." ( Election Law § 6-158[8] ).
Petitioners argue that this ten-day period began to run on the day that Liguori moved to Monroe County (alleged, but not proven, to be June 13, 2021). In the alternative, Petitioners argue that this ten-day period began to run on the date that she electronically changed her voter registration to Monroe County through the Department of Motor Vehicles (alleged, but not proven, to be June 29, 2021). Or the date that the Monroe...
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