In re Doyle

72 Misc.3d 489

149 N.Y.S.3d 762

In the MATTER OF the application of John W. DOYLE and Melissa D. Schlosberg, citizen-objectors, Petitioners, For an Order, pursuant to the provisions of the Election Law of the State of New York, declaring invalid the Democratic Party Certificate of Nomination and the Democratic Party Designating Petition for the Public Office of Suffolk County Legislator, 3rd Legislative District, filed by, caused to be filed by, or on behalf of Kate M. Browning as Candidate for the Public Office of Suffolk County Legislator, 3rd Legislative District, Nick Lalota and Anita S. Katz, as Commissioners constituting the Suffolk County Board of Elections, and the County of Suffolk, Respondents.

605822/2021

Supreme Court, Suffolk County, New York.

Decided on April 23, 2021

STEVEN E. LOSQUADRO, P.C., Attorney for Respondent Nick LaLota, 649 Route 25A, Rocky Point, NY 11778

VINCENT MESSINA, JR. ESQ., Attorney for Plaintiff, 285 West Main Street, Suite 203, Sayville, NY 11782

LAWRENCE H. SILVERMAN, ESQ., Attorney for Respondent Anita S. Katz 350 Veterans Mem. Hwy., Commack, NY 11725, DENNIS M. COHEN, Suffolk County Attorney, By: Alyssa L. Garrone, Esq., 100 Veterans Memorial Highway, PO B Box 6100, PO Box 6100, Hauppauge, NY 11788

ANTHONY LaPINTA, ESQ., Attorney for the Democratic Party, 200 Vanderbilt Motor Pkwy, Suite C-17, Hauppauge, NY 11788, HARRIS BEACH, PLLC, By: Thomas J. Garry, Esq., For Respondent Kate M. Browning, 333 Earle Ovington Blvd., Suite 901, Uniondale, NY 11553

James Hudson, J.

On this motion to Annul the Candidacy of Respondent Kate Browning it is

ORDERED, ADJUDGED AND DECREED that the Verified Article 78 Consolidated

Petition and Complaint dated April 12th, 2021 is granted and the determination of the Respondents Commissioners LaLota and Katz, constituting the Suffolk County Board of Elections, in accepting the designation of the Respondent Ms. Kate Browning as a candidate for the post of County Legislator for the 3rd Legislative District for the Special Election of May 25th, 2021 is hereby annulled. Respondents are directed to remove Ms. Browning's name from any Ballots prepared heretofore. It is further

ORDERED, ADJUDGED AND DECREED that determination of the Respondents Commissioners LaLota and Katz, constituting the Suffolk County Board of Elections, in accepting the designation of the Respondent Ms. Kate Browning as a candidate for the post of County Legislator for the 3rd Legislative District for the Special Election of June 22nd 2021, is hereby annulled. It is further

ORDERED, ADJUDGED AND DECREED that the Respondent Board of Elections is prohibited from placing the Respondent Ms. Kate M. Browning on the June 22nd, 2021 Democratic Party Primary Election for the 3rd Legislative District. Respondents are directed to remove Ms. Browning's name from any designating Petitions prepared heretofore; and it is further

ORDERED, ADJUDGED AND DECREED that the Respondent Ms. Kate M. Browning is declared to be ineligible to serve as a Suffolk County Legislator (N.Y.S Elec. Law § 6-122 ; Suffolk County Charter, Art. II § C2-5[B]).

This matter pertains to what was originally Index Numbers 605822/2021 and 606538/2021. On April 16th, 2021 the Court (with the Parties' Stipulation) consolidated both cases under Index No.: 605822/2021. A motion and cross-motion by the Respondents for dismissal under CPLR 3211(a)(7) was denied. That aspect of the cross-motion for dismissal pursuant to CPLR 3211(a)(10) was also denied. The Court, however, exercising its prerogative under CPLR 1001(b), directed that the Democratic Executive Committee be joined as a Party Respondent. The Court signed an Order to Show Cause directing the inclusion of the Executive Committee which was returnable on April 21st, 2021. All Parties appeared by Counsel on that date and all issues were found to be fully submitted.

The consolidated Petition seeks the following relief: an Order barring Ms. Browning for standing in the May 25th, 2021 Special Election and the June 22nd, 2021 Democratic Primary for the 3rd Legislative District of Suffolk County. As to the Board of Elections, the Petitioners request: (1) a declaration that Ms. Browning's designating Petition is invalid; (2) an Order directing her removal from the Primary Election Ballot; and (3) an Order enjoining the Suffolk County Board of Elections from printing Ms. Browning's name on the Primary Election Ballot. The Respondents have filed their Answers with objections in point of Law.

The gravamen of Petitioners' claim is that Article II of the Suffolk County Charter, § C2-5(B) (amended in 1993 by Local Law No.27-1993) prohibits a candidate from running for County Legislator if he/she previously served for a total of twelve (12) years in that Office [Petition at ¶ 11(a)].

Since, they argue, Ms. Browning falls within that category, she is precluded from seeking that Office again. The Respondents contend that the aforementioned Statute permits her candidacy.

N.Y.S Elec. Law § 6-122 provides: "A person shall not be designated or nominated for a public office or party position who (2) is ineligible to be elected to such office or position ..."

In turn, Suffolk County Charter Article II § C2-5 states in relevant part: "No person shall serve as a County Legislator for more than twelve consecutive years." The interpretation of this part of the County Charter is the subject of this Opinion.

The Verified Pleading alleges that the Respondent Ms. Browning held Office as a Legislator for twelve (12) years. Mr. Silverman points out that the Petition does not say "Consecutive" years but in the Court's Decision of April 16th, 2021 denying the cross-motion to Dismiss, the Court found that the supporting documentation provided by Petitioners remedied this omission under the rule in ( Carlson v. American Inter. Group, Inc. , 30 N.Y.3d 288, 298, 67 N.Y.S.3d 100, 103, 89 N.E.3d 490 [2017] ).

Prior to its analysis of the Arguments, Statutes and Case Law, the Court wishes to thank Petitioners' and Respondents' Counsel for their exceptional advocacy on behalf of their respective clients, in the best traditions of the Bar.

It must be noted that the jurisdiction of the Court to hear this case is unchallenged ( Hoerger v. Spota , 109 A.D.3d 564, 565, 970 N.Y.S.2d 592, 593—94, aff'd , 21 N.Y.3d 549, 975 N.Y.S.2d 377, 997 N.E.2d 1229 [2nd Dept. 2013] ). Likewise, the propriety of the County's enactment of the Term Limit Statute and its power to promulgate such a Law is not questioned at this juncture ( Roth v. Cuevas , 158 Misc. 2d 238, 248, 603 N.Y.S.2d 962, 969 [Sup. Ct. N.Y. Co.1993], aff'd , 197 A.D.2d 369, 603 N.Y.S.2d 736 [1993], aff'd , 82 N.Y.2d 791, 604 N.Y.S.2d 551, 624 N.E.2d 689 [1993] ; see Haskell v. Pattison , 2001 WL 1155004, at *1 [Sup. Ct. Rensselaer Co.2001] ).

In his Brief contending that Ms. Browning is precluded from running for the County Legislature, Mr. Messina asks the Court to consider the guidance found in McKinney's Cons. Laws of NY, Book 1, Statutes § 92[a], at 176 and § 120, at 242 which is discussed in ( Tutunjian v. Conroy , 55 A.D.3d 1128, 865 N.Y.S.2d 768 [3rd Dept. 2008] ).

Based on the language in the Referendum, other documentation submitted and the Law itself, Petitioners posit that the manifest intent of Charter § 2-5(B) is that once a Legislator has served twelve (12) consecutive years, they are barred for life from that Office.

In addition to the Charter itself, Petitioners have submitted documentary proof, including the November 2nd, 1993 Referendum Ballot which contained the following description of the Law before us. It states:

"YES	NO
BALLOT PROPOSAL	#6
COUNTY PROPOSITION	#3

Shall Resolution No. 580-1993, Adopting a Charter Law to Restrict the Influence of Special Interest by Limiting Terms of Office of County Legislators and County-wide Elected Officials to Twelve (12) Successive Years, Be Approved? (Petitioners' Exhibit "A" NYSCEF 46 under old Index No.: 606538/2021)."

We agree with Respondents' Counsel that the use of the term "successive" as opposed to "consecutive" in the Referendum for Local Law 27-1993 is a difference without a linguistic distinction. In any event, if there was a qualitative discrepancy between the Referendum and ultimate County Charter revision, it is beyond recall at this point (see Election Law § 16-104[2] ; Marcoccia v. Suffolk County Bd. of Elections , 309 A.D.2d 958, 959, 766 N.Y.S.2d 567 [2d Dept. 2003] ; Assn. for a Better Long Is. v. County of Suffolk , 243 A.D.2d 560, 561, 663 N.Y.S.2d 226 [2d Dept. 1997] ).

The Respondents submit a contradictory view of the Charter § 2-5(B) and the other evidence before the Court.

In his Memorandum of Law, Mr. Garry argues:

"Petitioners' proposed interpretation of the statutory language-a twelve-year limit on years in office-would eliminate any meaning from the word "consecutive" from the statutory language. This violates the well-established rule of statutory construction that to avoid a construction that renders a word or phrase superfluous."

In support of this position, he asks the Court to Review Term limit Laws from other municipalities in Suffolk County.

The Town of Brookhaven's companion Statute to the County's Term limit Law is Town Code § 20-62 which provides that a Councilperson "may serve up to three (3) four- (4) year Terms regardless of whether said terms are served consecutively or nonconsecutively."

The Islip Township Law states: "No member of the Town Board shall serve more than a total of three terms of office, regardless of whether those terms are served consecutively." (Town Code § 49A-2).

In the Town of Southampton, Town Code § 64-2 describes that "Any person who has served as a Councilman or a Councilwoman for the Town of Southampton for a total of eight years shall be ineligible to serve as a Councilman or-woman for any future term."

We find reliance on the Term Limit Statutes of these other local governments to be chimerical. The fact that these ordinances set forth a prohibition at great length...