Lavell v. Jaeger

65 N.Y.S.3d 492 (Table)

In the Matter of the Application of Patricia LAVELL, Petitioner–Objector,

v.Marjory H. JAEGER, Respondent–Candidate.

No. I–2017–000091.

Supreme Court, Erie County, New York.

Aug. 10, 2017.

Jerome D. Schad, Esq., Attorney for Petitioner–Objector.

Joseph T. Burns, Esq., Attorney for Respondent–Candidate.

Michael A. Siragusa, Esq., Jeremy C. Toth, Esq., Erie County Attorney's Office, Attorneys for Erie County Board of Elections, Commissioners Jeremy J. Zellner and Ralph M. Mohr.

EMILIO COLAIACOVO, J.

The Petition before the Court was filed pursuant to Election Law §§ 6 and 16 seeking to invalidate certain nominating petitions that were filed designating the Respondent–Candidate, Marjory H. Jaeger (hereinafter "Respondent–Candidate"), to be a candidate for the public office of Supervisor of the Town of Amherst. Petitioner, Patricia Lavell (hereinafter "Petitioner"), asserts that Respondent–Candidate is ineligible to run for this position because of a local town ordinance that provides for term limits (hereinafter "Term Limits Law"). Respondent–Candidate, the incumbent Town Clerk, maintains that the Term Limits Law does not apply and that she is eligible to run for the office of Town Supervisor. The Erie County Board of Elections and its commissioners took no position on the relief requested.

PAPERS SUBMITTED

The following papers were submitted for the Court's consideration:

1. Order to Show Cause filed July 20, 2017 and Verified Petition dated July 20, 2017 (Exhibits:"A" Amherst Local Town Ordinance Chapter 55 "Term Limits"; "B" General and Specific Objections to Designating Petitions filed pursuant to Election Law § 6–154 );

2. Affirmation of Service filed July 27, 2017;

3. Verified Answer dated July 27, 2017;

4. Attorney Affirmation of J. Matthew Plunkett, Esq., dated July 27, 2017;

5. Petitioner's Memorandum of Law dated July 31, 2017;

6. Erie County Board of Elections File, marked as "Court's Exhibit 1" on August 1, 2017;

7. Attorney's Affirmation of J. Matthew Plunkett, Esq., dated August 2, 2017;

8. Attorney's Affirmation of E. Thomas Jones, Esq., dated August 2, 2017; and

9. Affirmation Objecting to Respondent–Candidate's Supplemental Affirmations of Jerome D. Schad, Esq., dated August 4, 2017.

PROCEDURAL HISTORY AND FACTS

In 2006, the Town of Amherst, New York enacted Local Law No. 10–2006, which was entitled "Term Limits Law". According to the section entitled "Legislative intent", the Town of Amherst intended to expand participation in the electoral process and bring new ideas to town governance. The Term Limits Law, which applies to all elected town offices except for town justice, states, in relevant part:

§ 55–3 Term limits established: No elective public officer of the Town of Amherst shall have more than two consecutive terms of four years each in the same public office. For the purposes of this chapter, "same public office" shall mean any and all public offices that are the same as the office that the elective public officer last held. Any terms of office held prior to November 6, 2007, [sic] general election shall not be counted for term limitation purposes.

§ 55–5 Other elective office: Nothing contained in this chapter shall prohibit an elective public officer from seeking, being elected to, or holding another and different public office in the Town of Amherst at the conclusion of a term of public office as required by this chapter.

The Respondent–Candidate was elected to the public office of Town Clerk in Amherst in 2011 and began her term of office on January 1, 2012. She was re-elected to another term as Clerk in 2015 and began that term on January 1, 2016. She has not completed her second term of office as Clerk.

Recently, the Respondent–Candidate circulated Designating Petitions for Amherst Town Supervisor, a public office which will appear on the November 2017 ballot. The Designating Petitions filed were for the Republican, Conservative, Independence, and Reform political parties.

Petitioner filed General and Specific Objections to the aforementioned Designating Petitions on July 17, 2017 pursuant to Election Law § 6–154. The Petitioner filed her Petition and Order to Show Cause on July 20, 2017 in anticipation of the Erie County Board of Elections rendering its administrative determination on her objections. On July 31, 2017, the Erie County Board of Elections unanimously qualified the petitions of the Respondent–Candidate. See Court's Exhibit 1. Thereafter, this Court heard oral argument on the Order to Show Cause and Petition on August 1, 2017.

ARGUMENT

Petitioner

Petitioner maintains that the Term Limits Law effectively prohibits the Respondent–Candidate from running for Town Supervisor. In particular, Petitioner acknowledges that the Term Limit Law prevents current public officials from having "more than two consecutive terms of four years each in the same public office." See Term Limit Law § 55–3. Petitioner argues, however, that the Term Limits Law requires a break in service from one's current position before seeking election to another office. Because the Respondent–Candidate has not yet completed her second term as Town Clerk, the Petitioner maintains that the Respondent–Candidate would have to either complete her term and take a two-year break from service before running for another elected office or resign from her current office prior to being designated on petitions to seek another public office within the Town of Amherst.

Petitioner believes that the Respondent–Candidate's candidacy for Town Supervisor is an affront to the legislative intent of the Term Limits Law, which was designed to "expand participation in the electoral process and bring new ideas to governance of the Town." See Term Limit Law § 55–2. Petitioner asserts that the Court should not resort to construction or interpretation, but instead abide by the Term Limit Law's legislative intent. People ex. Rel. New York Cent. & H.R.R. v. Woodbury, 208 N.Y. 421 (1913) ; City of Buffalo v. Lawley, 6 A.D.2d 66 (4th Dept.1958). Further, Petitioner maintains that the language of the statute is clear and that the text is the controlling factor when analyzing the merits of her argument. Majewski v. Broadalbin–Perth Central School District, 91 N.Y.2d 577 (1998).

Lastly, Petitioner asserts that the Term Limits Law is enforceable and supersedes any general law to the contrary. Canzano v. Town of Gates, 85 A.D.2d 878 (4th Dept.1981). It should be noted that there has been no challenge to the Term Limits Law that is the subject of this petition.

Respondent–Candidate

Like the Petitioner, Respondent–Candidate maintains that the text is controlling. However, Respondent–Candidate adopts an alternate conclusion. Respondent–Candidate asserts that § 55–3 is clear and does not stand for the proposition as alleged by the Petitioner. Instead, Ms. Jaeger argues that the Term Limits Law is designed to prevent a Town of Amherst elected official from serving "more than two consecutive terms of four years each in the same public office." See Term Limits Law § 55–3. As such, Respondent–Candidate holds that there is no limit or restriction on her candidacy for Town Supervisor as advanced by the Petitioner because she is running for a different office.

Ms. Jaeger asserts that Petitioner is suggesting that the statute stands for something that it does not. Respondent–Candidate submitted two affidavits from J. Matthew Plunkett, Esq., and E. Thomas Jones, Esq., who were Deputy Town Attorney and Town Attorney in Amherst at the time the ordinance was drafted, debated, and adopted. Both maintain that Petitioner is misrepresenting the intent of the Term Limits Law. In particular, both argue that the Term Limits Law applies only where an individual is term-limited in an existing office and that "the term limitation in one office in no way prohibits that individual from seeking another, different, town office." See Affirmation of J. Matthew Plunkett, Esq., dated July 27, 2017. Further, both Town Attorneys state that the Term Limits Law only applies to people who held two consecutive terms in the same office and does not bar current office-holders from, as is the case here, seeking a separate and different town office. Indeed, Respondent–Candidate insists that the Term Limits Law in no way requires a sitting office-holder complete one existing term before seeking a different town office.

In his affirmation, E. Thomas Jones states that the Town, in adopting the Term Limits Law, did not intend to bar officials from seeking or holding other town offices. Further, Mr. Jones held there was never any discussion for there to be a mandatory "time-out" before seeking another, different office. In addition, Mr. Jones identified two instances where an existing town elected official, in the middle of their term, sought another office. Deborah Bucki, while a sitting Town Board member, ran and was elected to the Office of Town Clerk. In the last election for Town Supervisor, in the middle of his term, Town Board member Mark Manna ran for Town Supervisor.

Further, Respondent–Candidate argues that Petitioner's argument is not ripe. Inasmuch as the date of commencement of the term for the office in question has not arrived yet, Respondent–Candidate argues that the relief requested is premature. Locke v. Walsh, 120 AD3d 997 (4th Dept.2014). Because the argument is not ripe for review, Ms. Jaeger contends the petition must be dismissed.

In response to the Respondent–Candidate's Answer, Petitioner disagrees that the issue is premature as suggested. Relying on Election Law § 6–122, Petitioner maintains that a candidate shall not be designated if they are ineligible to be elected for such office. Believing the Respondent–Candidate cannot run for the office of Town Supervisor in light of the Term Limits Law, Petitioner insists Ms. Jaeger is ineligible and thus the relief requested is ripe for determination.

Lastly, the Respondent–Candidate maintains that the Petitioner's...