Voglewede v. Stepherson

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2023 NY Slip Op 31723(U)

In the Matter of the Application of DAWN VOGLEWEDE and TRACY DIFLORIO, Petitioners-Objectors, v. MARVIN L. STEPHERSON, Respondent-Candidate, and MONROE COUNTY BOARD OF ELECTIONS, by JACKIE ORTIZ and LISA NICOLAY CONSTITUTING COMMISSIONERS, Respondents. For an Order Pursuant to Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, And CPLR Section 3001, Declaring Invalid the Democratic Party Designating Petitions Purporting to Nominate Marvin L. Stepherson as Candidate for the Public Office of County Legislator, 3rd Legislative District, County of Monroe, in the Primary Election to be held June 27, 2023, and to Restrain the Monroe County Board of Elections from Printing and Placing the Name Marvin L. Stepherson Upon the Official Ballots of Such Primary and/or General Election.

Index No. E2023004481

Supreme Court, Monroe County

May 4, 2023

Unpublished Opinion

Jared P. Hirt, Esq., Evans Fox LLP for Petitioners-Objectors

Bridget A. O'Toole, Esq., HEATH & O'TOOLE, PLLC for Respondent-Candidate John P. Bringewatt, Esq., Monroe County Attorney, Robert P. Shoemaker, Esq., of counsel attorneys for Respondents

DECISION, ORDER AND JUDGMENT

Daniel J. Doyle, J.

In this proceeding pursuant to New York Election Law article 16 Petitioners-Objectors Dawn Voglewede and Tracy DiFlorio (hereinafter "petitioners") seek to invalidate signatures on designating petitions to designate Respondent-Candidate Marvin L. Stepherson (hereinafter "Stepherson") as the nominee for the Democratic Party in the primary and general election for the position of county legislator in the 3^rd legislative district in the County of Monroe, and a declaration that the candidate failed to file a Petition with the requisite number of signatures to place him on the ballot for the primary and general elections.

Petitioners initiated the action on May i, 2023. The Court, recognizing that "[e]lection Law proceedings are subject to severe time constraints, and they require immediate action (see Matter of Tenneriello v. Board of Elections in City of N.Y., 104 A.D.2d 467, 468, 479 N.Y.S.2d 72)" (Master v. Pohanka, 44 A.3d 1050,1052 [2^nd Dept. 2007J) ordered the parties to appear for a hearing on May 3, 2023.^[1] On that date a fact-finding hearing was conducted. The Court directed the parties to submit any post-hearing submissions by May 4^th at 10:00 a.m.

For the reasons that follow, the Court determines that the Petitioners have failed to establish that Stepherson's Designating Petition contains an insufficient number of signatures of enrolled voters of the Democratic Party. The Petition is therefore dismissed.

Findings of Fact

On April 10, 2023, Marvin L. Stepherson filed a Designating Petition, consisting of 26 pages containing 332 signatures of persons enrolled in the Democratic Party and who lived in the 3^rd Legislative District in Monroe County, as the Democratic Party candidate for the position of Monroe County Legislature in than the fifty-fourth day before the day of a primary or general election, the fifty-third day before a special election, or twenty-four days before a special election held pursuant to paragraph b of subdivision three of section forty-two of the public officers law, shall determine the candidates duly nominated for public office and the questions that shall appear on the ballot within the jurisdiction of that board of elections." (Elec. Law § 4-114.) Additionally, the deadline for Monroe County Board of Elections to transmit ballots to eligible military voters is May 12^th. (See Elec. Law § 10-108[1][a]: "[b]alJots for military voters shall be mailed or otherwise distributed by the board of elections, in accordance with the preferred method of transmission designated by the voter pursuant to section 10-107 of this article, as soon as practicable but in any event not later than forty-six days before a primary or general election. . . ") Additionally, Elec. Law § 16-102(4] states: "A final order including the resolution of any appeals in any proceeding involving the names of candidates on ballots or voting machines shall be made, if possible, at least five weeks before the day of the election at which such ballots or voting machines are to be used, or if such proceeding is commenced within five weeks of such election, no later than the day following the day on which the case is heard." the 3^rd Legislative District. To be placed on the ballot, Stepherson's Designating Petition must contain at least 320 valid signatures.^[2]

The Designating Petition contains twenty-six (26) pages and three hundred and thirty-two (332) signatures. Stepherson was the subscribing witness on pages 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 24, and 26. There are two hundred and eighty-one (281) signatures on those pages. Five other people "collected" the remaining fifty-one (51) signatures.

On April 17, 2023 (having filed a general objection on April 10, 2023, to the Designating Petition), Petitioner Vogelwede filed specific objections to twenty-three signatures contained in the Designating Petition. The objections filed were to the following signatures:

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Respondents Monroe County Board of Elections Commissioners (hereinafter "BOE") conducted a hearing on April 28, 2023, to determine the validity of the Designating Petition and the specific objections made by Petitioners. They ruled as follows:

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Petitioners make four general claims: (i) one of the subscribing witnesses (Nicholas Coffee) incorrectly listed his address as "Rochester" when he was required to state "Gates" and this invalidates the six signatures on that page (was denied by BOE due to split decision); (2) identified signatures do not match the signature on file with the BOE, and one person signed for two people (was denied by the BOE as "not subject to administrative review"); (3) several signatures are invalid as duplicate signatures or listed an incorrect or incomplete address (some of which were sustained by BOE); and (4) the Designating Petition is "permeated with fraud" requiring invalidation.

At the fact-finding hearing, in addition to stipulating to the admission of the Designating Petition^[3], the general objection^[4], the specific objections^[5], Stepherson's letter to the BOE dated April 26, 2023^[6], the notification of the BOE hearing sent to the parties, and the BOE hearing decision on the specific objections^[7], the parties stipulated to the following facts:

1. Nicholas Coffee, the subscribing witness to page 23 of the Designating Petition, resides at 19 Twin Circle Drive in the Town of Gates.

2. That Stepherson's Designating Petition must contain at least 320 valid signatures of voters enrolled in the Democratic Party within the 3^rd Legislative District to be valid.

3. That Stepherson's Designating Petition contains 332 signatures.

4. The contents of Stepherson's April 26, 2023 letter to the BOE concerning Roy Taylor signing for Mary H. Taylor are deemed admitted.^[8]

5. That all specific objections sustained by the BOE are deemed to be invalid signatures (page 12, line 4; page 16, line 9; page 19, line 10; page 21, line 5; page 26, lines 11,12, and 13).

6. That the following contested signatures are valid: page 13, line 3 and pages 13, line 4.

7. That the following contested signatures are not valid: page 7, line 6 and page 8, line 2.

The Court reviewed the remaining challenged signatures in the Designating Petition and compared those signatures to the registration records for the listed signor.^[9]

At the hearing, Stepherson testified as to what occurred as he was collecting signatures. The Court determined Stepherson to be credible, and his relevant testimony is as follows.

Mr. Stepherson was formerly a sergeant with the Rochester Police Department, having retired after twenty-five years of service. He had previously been a candidate for Monroe County Legislature and had "collected" signatures as part of that process. When Stepherson was challenged about a signor who had signed for another person (Roy Taylor signing for Mary Taylor), he testified that "I didn't see that Roy put Maiy Taylor on there" and when he attested to observing all signatories, it was truthful as he did not discover Roy had placed Mary's name on the petition.

He specifically denied observing one signor sign more than one name.

Conclusions of Law

Nicholas Coffee's Error Does Not Mandate Invalidating Page 23 of the Designating Petition

One of the subscribing witnesses, Nicholas Coffee, listed his address as "19 Twin Circle Drive Rochester" and the "Town or City Where Witness Resides" as "Rochester" in the "Statement of Witness" provision at the bottom of page 23 of the Designating Petition. The Town where Mr. Coffee resides is the Town of Gates, New York.^[10] Petitioner argues that this defect requires invalidating the six (6) signatures that appear on that page.

There is no question that Mr. Coffee resides at 19 Twin Circle Drive and that his residence is in the Town of Gates. "The requirements that a subscribing witness disclose his or her current address and reside in the state protects the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition (see Election Law § 6-132 [2]; Matter of La Brake v. Dukes, 96 N.Y.2d 913, 914-915, 733 N.Y.S.2d 133, 758 N.E.2d 1110, citing Lerman v. Board of Elections, 232 F.3d 135, 150; Molinari v. Powers, 82 F.Supp.2d 57, 73)." (Pisani v. Kane, 87 A.D.3d 650, 651-52 [2^nd Dept. 2011].) As Mr. Coffee provided an address where he could be found and be subject to service of process, and the parties stipulated that Mr. Coffee did live at this address, this was sufficient to satisfy the...