Potiker v. Bohlke

2022 NY Slip Op 31250(U)

BENJAMIN J. POTIKER, Petitioner, v. RALPH BOHLKE, MARK LAVIOLETTE, LINDA BOHLKE, MARK KIRKER, RACHEL RISSETTO And RAUL RISSETTO, purported Conservative Party Judicial Delegate and/or Alternate Judicial Delegate candidates for the 112th Assembly District, 4th Judicial District of New York State, and NEW YORK STATE BOARD OF ELECTIONS, Respondents.

Index No. EF2022892

Supreme Court, Saratoga County

May 6, 2022

Unpublished Opinion

Joseph T. Burns, Esq., attorney for Petitioner-Objector

Greenberg Traurig, LLP (Robert M. Harding, Esq. And Joshua L Oppenheimer, Esq.) for Respondent-candidates

Aaron Suggs, Esq. for Respondent New York State Board of Elections

DECISION AND ORDER

HON MICHAEL R. CUEVAS JUSTICE

INTRODUCTION

Petitioner Benjamin J. Potiker (hereinafter referred to as "Potiker" or "Petitioner"), instituted this proceeding pursuant to Election Law Article 16 by filing a Verified Petition and Exhibits, an Emergency Affirmation of Counsel and a proposed Order to Show Cause with the Saratoga County Clerk on April 17, 2022. Due to the recusals by other Justices, this proceeding was assigned to this Court on April 20, 2022. An Order to Show Cause was then issued directing the manner of service, the dates for filing and service of further pleadings and setting the date for hearing. Respondent-candidates (Ralph Bohlke, Mark Laviolette, Linda Bohlke and Mark Kirker) (hereinafter "Responding Candidates"), filed a Verified Answer and Objections in Point of Law on April 26, 2022. Respondent-candidates, Rachel Rissetto and Paul Rissetto, did not answer or appear. Respondent New York State Board of Elections (hereinafter "the Board") filed an Answer, taking no position and also filed copies of its records relevant to this proceeding, as directed by the Order to Show Cause. On April 28, 2022, Petitioner filed a Reply with additional exhibits.

On the return date, counsel stipulated that there was no dispute as to the material facts in this proceeding and that all exhibits (both those submitted by Petitioners and those submitted by the Board) could be received into evidence on consent. As Counsel agreed the issues were strictly legal in nature, the Court heard oral argument only. The Court adjourned the proceeding as the New York State Board of Elections was to make a final determination on objections on May 2, 2022. On the adjourned date, counsel stipulated that the proceeding was fully submitted for the Court to decide the legal issues regarding the cover sheet, frustration of the statutes and over designation issues.

FACTUAL BACKGROUND

A. Background

Petitioner Potiker is a registered voter, enrolled in the Conservative Party. Potiker resides in the 112^th Assembly District which is in the 4^th Judicial District. NYSCEF Document 1, Petition. ¶2. Respondent-candidates are all registered voters, enrolled in the Conservative Party and residents of the 112^th Assembly District. NYSCEF Document 1, ¶¶ 3 - 8. On or about April 4, 2022, a Conservative Party designating petition, with a Cover Sheet indicating it was Volume 1 of 1, was filed with the Board which purported to designate the Responding Candidates for the party position of Delegate and/or Alternate Delegate to the Conservative Party 4^th Judicial District Nominating Convention. NYSCEF Document 4. On or about April 7, 2022, another Conservative Party designating petition was filed with the Board on behalf of Responding Candidates, along with a Cover Sheet indicating that it was Volume 2 of 2. NYSCEF Document 5. On April 8, 2022, an Amended Cover Sheet was filed for Volume 1, on April 8, 2022^[1], stating it was Volume 1 of 2. NYSCEF Document 4.

Pages 1 -3, 5, 6, 8, 10 -12, 14, 15, 18 -20, 25 and 26 of Volume 1 listed Ralph F. Bohlke and Mark Laviolette as candidates for the party position of Delegate with Linda F. Bohlke and Mark Kirker as candidates for the position of Alternate Delegate.

Pages 4 and 7 of Volume 1 list Rachel M. Rissetto and Mark Laviolette as candidates for the position of Delegate and Raul J. Rissetto and Mark Kirker as candidates for Alternate Delegate. On these last two pages, Mark Kirker address is listed as "138 Birch Ln., Glenville, NY 12302". Whereas on the other pages of Volume 1, Kirker's address is listed as "12 Ralmar Drive, Glenville, NY 12302".

Pages 9, 13, 16, 17, 21, 22, 23 and 24 of Volume 1 name Rachel Rissetto, Mark Laviolette, Raul Rissetto and Mark Kirker as candidates for the position of Delegate, with no candidates listed for the position of Alternate Delegate.

Petitioner filed a General Objection on April 7, 2022 and Specific Objections on April 13, 2022 with the New York State Board of Elections against Respondent-candidates' Conservative designating petitions. NYSCEF Document 6. According to the NYS Voter Signature Requirements by Assembly District (NYSCEF Document 8), a Conservative Party designating petition for the 112^th Assembly District must contain a minimum of 101 valid signatures. According to the Conservative Party Call (NYSCEF Document 7), there are two Judicial Delegate positions available in the 112^th Assembly District.

The Fourth Judicial District in New York consists of the entirety of eleven counties: Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, Saratoga, Schenectady, St. Lawrence, Warren and Washington. The 108^th Assembly District is comprised of portions of Saratoga County.

The New York State Board of Elections' Political Calendar (NYSCEF Document 5) established April 7, 2022 as the last day to file designating petitions.

On May 2, 2022, the Board issued a Determination finding that the two-volume petition was filed on April 7, 2022 and contained a total of 276 signatures. Of the signatures submitted, the Board found 104 to be invalid, leaving 172 valid signatures and determined the "petition contains the requisite number of signatures required for the designation sought, and is valid."

THE LAW AND DISCUSSION

A. OVER DESIGNATION

Election Law §6-134 (3) states:

3. If a voter shall sign any petition or petitions designating a greater number of candidates for public office or party position than the number of persons to be elected thereto his signatures, if they bear the same date, shall not be counted upon any petition, and if they bear different dates shall be counted in the order of their priority of date, for only so many designees as there are persons to be elected.

In applying this section, the Fourth Department, in Matter of Elgin v. Smith, 10 A.D.3d 483 (4^th Dept, 2004), found,

Here, each voter signature at issue designated on the same date a greater number of candidates for public office or party position than the number of persons to be elected. Thus, the designating petition is invalid in its entirety (see Matter of DeCicco v. Chemung County Board of Elections, 93 N.Y.2d 1008, 1009-1010 [1999]}.

The Elgin case was a clear case of over designation because all of the pages of the designating petition purported to designate five candidates each for election to the positions of Delegate and Alternate Delegate to the Independence Party Judicial Nominating Convention from the 138^th Assembly District, Eighth Judicial District when only three Delegate and Alternate Delegate positions were up for election. The issue on appeal was not whether the purported candidates were to be stricken from the primary election ballot, but whether a Committee on Vacancies could fill the three Delegate and Alternate Delegate positions. The Appellate Division held that since the designating petition was invalidated in its entirety, the Committee on Vacancies could not act.

More recently, the Appellate Division, Second Department, affirmed Supreme Court's dismissal of a petition to validate designating petitions for the party positions of Delegate and Alternate Delegate to the Republican Judicial District Convention for the 11^th Judicial District on the grounds of over designation. Here too, the case was clear, the petition purported to designate two candidates for each position when only one was authorized. The Court cited the language of Election Law §6-134 (3) finding:

Here, the designating petitions over-designated the number of candidates eligible for the positions of Delegate and Alternate Delegate to the Republican Judicial District Convention for the 11th Judicial District, by designating two candidates rather than the requisite one candidate for each position. Although the Supreme Court properly upheld the Board's determination invalidating the designating petitions insofar as they related to the candidates for those positions pursuant to Election Law § 6-134(3) (see Matter of DeCicco v. Chemung County Bd. of Elections, 93 N.Y.2d at 1010, 697 N.Y.S.2d 245, 719 N.E.2d 526; see also Matter of Elgin v. Smith, 10 A.D.3d at 484, 781 N.Y.S.2d 182), ...

Murray v. Simon, 194 A.D.3d 894, 896, 145 N.Y.S.3d 610, 612, leave to appeal denied, 36 N.Y.3d 913, 169 N.E.3d 247 (2021).

If it weren't abundantly clear from the language of Election Law §6-134, the Elgin and Murray cases clarify that it is the signers of designating petitions who over designate when they sign petitions that purport to designate more candidates than there are petitions. In the instant case, only the signers of Petition Pages 9, 13, 16 17, 21, 22, 23 and 24 of Volume 1 over designated. Curiously, the Board did not invalidate all of the signatures on those pages. This Court finds that the signatures that the Board counted as valid signatures in Volume I on page 16 (4 signatures), page 21 (4 signatures), page 22 (2 signatures), page 23 (10 signatures) and page 24 (1 signature) are invalid due to over designation of four candidates for the Delegate position when only two positions are available. This Court...