wep nassau decision

8/20/2019 WEP Nassau Decision

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Tocomm@ncethestatutorytlmeperiodforappeals

as of righi (CPLR 5513[al), you are advised l(l serve

a copy Oflhis order. with notice of entry, upon all parties

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

- - - - - - - - - - - - - , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ) (In the Matter of the Application of

DANIEL F. DONOVAN, JR., Chairman of the Nassau County

Conservative Party Committee,

-and-

H. ARTHUR ANDERSON III, DAVID L. ZATLIN, JOHN M.

HANNA, JEFFREY L. FARRELL, EDWARD F. GRIFFIN JR.,

JAMES J. COLLINS JR., PETER .1. CANIGIANI, ELIZABETH

TOWERS, MICHELLE IMBROTO, ELLA STEVENS,

PATRICIA KARAMSINGH, RICHARD HAYES, PAULINA

MONTALVO, DIANE OSTENDORF, FRANK A. FORTIS,MATTHEW J. KEIRNAN, Objectors Aggrieved.

Petitioners,

-against-

SYLVIA CABANA, EVE LUPENKO, MICHAEL ZANGARI,

TAMMIE S. WILLIAMS, MICHAEL REID, ANTHONY

ERAMO, KAREN ADAMO, LEONICO TORRES, N. SCOTT

BANKS, TAMMY SCHWITZ ROBBINS, MADELINE

SING AS, LINDA KELLY MEJIAS, AYESHA K. BRANTLEY,

MICHAEL D. SIFF, DELIA DERIGGI WHITTON, EILEEN M.

NAPOLITANO, MATTHEW MALIN, JUDITH A. JACOBS,

DEAN EVAN HART, CLAUDIA BORECKY, SIELA BYNOE,

KEITH S. LEBOWITZ, LAURA CURRAN, JAMES E.

PAYMAR, TOVA SUZANNE PLAUT, CARL GERRATO,

MALLORY NATHAN, ANGELA G. IANNACCI, PETER

ZUCKERMAN, ANNA KAPLAN, EMILY BEYS, ROBERT

K. FREIER, JOSEPH ANTHONY STUFANO, SR., CHARLES

BERMAN, RITA KESTENBAUM, JUDI BOSWORTH, JOHN

MANGELLI, MILAGROS VICENTE, DINO G. AMOROSO,

Purported candidate(s) of the WOMEN'S EQUALITY PARTY

for various public offices located within Nassau County, .

DECISION & ORDER

Index No. 15-8449

•


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-and-

DAVID J. GUGERTY AND LOUIS G. SAVINETTI,

Commissioners constituting the

NASSAU COUNTY BOARD OF ELECTIONS,

-and-

PETER KOSINSKI, DOUGLAS KELLNER, ANDREW

SPANO AND GREGORY PETERSON, Commissionersconstituting the NEW YORK STATE BOARD OF ELECTIONS

-and-

The purported WOMEN'S EQUALITY PARTY, and its

purported committees and BARBARA FIALA/RACHEL

GOLD, its purPorted chair/acting chair,

-and-


purported committees and MARY JO TAMBURLIN,

its purported chair/acting chair,

-and-


purported committees and CECILIA TCKACZYK,

its purported chair/acting chair,

Respondents.

For an Order Pursuant to the Election Law, and Article 78

of the CPLR Declaring Invalid the Respondent Candidates'Purported Women's Equality Party Nominations, and to

Restrain the said Board of Elections from Placing the Name of.

said Candidates Upon the Official Ballots of the General Election.

- - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ) (WOOD,J.

The following papers numbered 1-45 were considered by the court on petitioners' application

brought by order to show cause and Women's Equality Party/Gold/Fiala Respondents' motion todismiss:

Petitioners' Order to Show Cause, Verified Petition, Affidavit of Service, Emergency 1-18

Affirmation, Affirmation in Opposition with Exhibits A-L, Memorandum of Law in

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Opposition to Dismiss, Federal Express printout.

Respondents WEP/Gold/Fiala's Notice of Motion to Dismiss. Russo's Affirmation 19-39

with Exhibits A-I, Russo's Supplemental Affirmation with E~hibits A-H, Nassau Courity'Certificate of Nomination.

Respondent Candidates' Verified Answer with Exhibit A, Corbett's Affirmation, 40-45

Williams' Affidavit with Exhibits A-B.

The instant special proceeding arises from the formationof the Women's Equality Party

eWEP"), which obtained its status as a party under Election Law SI-104(3), after Governor

Andrew M. Cuomo ("Cuomo") received in excess of 50,000 votes on its line in the general

election in November 2014. Certificates of nomination for 39 candidates were filed with the

respondent Nassau County Board of Election by WEP. Three factions claim to be WEP:

Barabara Fiala and Rachel Gold ("WEP Fiala/Gold"), Mary 10 Tamburlin eWEP Tamburlin")

and Cecilia Tckaczyk ("WEP Tckaczyk"). Four sets of rules and purported officers have been

.filed with the State Board of Election. I Multiple other proceedings have been decided, or are

currently being litigated, and some have already been appealed to the various Appellate

Divisions. Petitioners, consisting of the Chairman of the Nassau County Conservative Party and

citizen objectors, claim, inter alia, that the certificates of nomination at issue here are invalid

under Election Law S6-128( 4), because no WEP faction--specifically the Gold/Fiala, faction that

filed certificates of nomination in Nassau County--has the authorization of a majority of the

candidates of the party that ran statewide in 2014.

Initially, respondent-candidates claim that the petitioners are limited to the objections that

they raise in their verified petition. The court agrees. The amended verified petition of

petitioners, dated October 6, 2015, has not been considered in this decision and order. However,

IGold/Fiala filed 2 sets.


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contrary to the view of the respondent-candidates, the verified petition does sufficiently allege

and apprise them of the primary issue, which is petitioners' contention that the WEP/FialaiGold

respondents failed to properly adopt its rules pursuant to Election Law 96-128(4), by inter alia,

failing to obtain consent ofa majority of the 4 statewide candidates that ran on their line2

Also, respondent candidate Tammie S. Williams has submitted an affidavit that she did

not receive the order to show cause and papers upon which this proceeding is based. The service

provision of the order to show cause signed by Justice Brown on September 22, 2015 permitted

service by several methods, including overnight mail. The petitioners in their affidavit of service

have stated that the service was effectuated via Federal Express overnight mail to all of the

named respondent candidates, of which Williams was the third on the list. Petitioners have also

produced a copy of the Federal Express receipt evidencing delivery to the address given for

Williams on the certificate of nomination3 The court is satisfied that Williams was properly

served in accordance with the service provision of the order to show cause.

Relevant Procedural History

On July 2, 2015, the New York State Board of Election ("SBOE") received from the

WEP/FialaiGold respondents "Rules of the Women's Equality Party of the State of New York"

. which named Officers of the Interim State Committee to be Barbara Fiala as Chair, Kathy Joy as

. 2 Interestingly, respondent candidates argue that because the DeLabio v Allen decision of

September 14,2015 from Niagara County was reversed, that the petitioners cannot challenge the

WEP/Gold/Fiala rules. However, the petitioners subsequently won again at the trial level in

DeLabio on reargument, based on the lack of the jurat on the WEP Gold/Fiala' affidavit filed with

its rules.

3 The Reply affirmation of petitioners was not considered by the court. However, it arrived atchambers at the same time that the parties were about to be emailed from chambers directing

petitioners to provide the FedEx mailing receipt. The court's secretary noted the presence of the

FedEx printout, and alerted the court. The court has not read the Reply affirmation, and has

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Secretary, Rachel Gold as Member of the Executive Committee, and Vice-Chair and Treasurer

were "TBD,,4 Together with the rules, was attached a "Certification of Election of Interim

Officers/Members of the Interim State Committee and Adoption of Rules of the Women's

Equality Party of New York State" signed by Andrew M. Cuomo, Governor, notarized on June

25,2015, and also by Kathleen C. Hochul, Lieutenant Governor on June 25, 2015. On July 14,

2015, SBOE received "Rules of the Women's Equality Party of the State of New York" which

named Officers of the Interim State Committee to be Barbara Fiala as Chair, Kathy Joy as

Secretary, Rachel Gold as Treasurer, and a Vice-Chair was "TBD" (presumed to mean "to be

determined"). Together with this second set of rules, was attached a "Certification. of Election of

Interim Officers/Members of the Interim State Committee and Adoption of Rules of the

Women's Equality Party of New York State" signed by Andrew M. Cuomo, Governor, notarized

on July 13,2015, and also by Kathleen C. HochuI, Lieutenant Governor, on July 13,2015.

Then, on August 28, 2015 and August 30, 2015, SBOE received two other sets of "Rules

of the New York State Committee of the Women's Equality Party" (from respondents WEP

Tkaczyk and WEp. Tamberlin, respectively), neither of which had certification from any

statewide candidate that ran on the WEP line, of either the election of interim officers or

adoption ofmles. Litigation ensued in over a dozen counties across New York State.

On September 10,2015, the WEP Fiala/Gold respondents filed certificates of nomination

for all of the respondent candidates herein with SBOE, attaching their second set of rules that

was received by SBOE on July 14, 2015. The same were :fiIed with Nassau County Board of

considered only the FedEx printout.

4 The court resumes this to mean "to be determined".


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Elections ("NBOE") on September 14, 2015. Petitioners commenced this proceeding to

invalidate the certificates of nomination by order to show cause on September 22,2015.

Discussion

To decide this matter, this court does not need to compare the multiple WEP factions, nor

to decide who, if anyone is the true torchbearer for the WEP. The outcome of this matter rests

squarely upon whether or not the actions taken by the WEP Fiala/Gold respondents satisfy the,

Election Law, specifically 96-128. Respondents argue initially, that 96-128(3) makes it clear

that no board or officer shall receive for filing any certificate of nomination unless it fulfills "the

above requirements." Therefore, 96-128(1) and (2) must be the subject of examination by the

Board of Elections, but there is no need to look to subsection (4) in the first instance.

The court agrees with this point. The plain text of the statute, in relevant part, is as

follows:

A certificate of such nominations shall contain:

(a) the name of the party filing the nomination;

(b) the title of the office for which the nominations is made and the name

and residence address of the person so nominated;

(c) the names of the members of the committee, if any, appointed to fill

vacancies in nominations;

(d) a description and representation of the party's emblem;

(e) the name of the committee making the nomination;

(f) a certified copy of the party rules describing the rule-making body

and nomination process; and

(g) an affidavit containing a statement by the presiding officer and

secretary of the committee that they are such officers and the statements

in the certificate are true (Election Law S6-128[1]).

Election Law S6-128(2) states where and when the certificate of nomination is to be filed. 96

-

128(3) refers back to 96-128( I) and 96-128(2). Election Law 96-128(4) states:

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--------

-- --------

"If there is any question or conflict relating to the rules or the rule-

making body, rules which a majority of the candidates of such party who

were nominated by petition for offices voted for by all the voters of thestate at the general election at which the independent body became a

party certify were duly adopted by a properly authorized body shall be

deemed to be the rules. The certificate of such candidates describing the

rule-making body shall be controlling. Election LawS6-128(4)

Thus, without a question or conflict, in order to determine the validity of the nominations, the

cOUl1'sanalysis should rest solely upon the actions of the WEP Fiala/Gold respondents, which

the Nassau County Board of Elections (NBOE) would examine pursuant to S6-128(3), to see if

said nominations meet the criteria set forth in Election Law S6-128( I) and (2).

Petitioners argue that the court should apply Election Law S6-128(4), based upon the

filing of competing and conflicting rules by WEP Tkaczyk and WEP Tamberlin. Petitioners

claim that these filings create a "question or conflict. relating to the rules or the rule-making

body" as contemplated by Election Law S6-128( 4). The respondents argue that this opens the

door to anyone, .whether associated with the original WEP efforts or not, to file rules and

certificates of nomination, effectively allowing them to "hijack" the party.

This court disagrees. To prevent such a "hijacking" from happening, the Legislature

outlined a simple process that determines which group (if any) can claim control of the party in

S6-128(4). The First Department summarized this process and the statute, stating that S6-128(4)

"recognizes as the only identifiable body of individuals affiliated with a new party its slate of

Statewide candidates and grants to a majority of that body the authority to adopt and certify

rules" (Independence Party of New York v Bd. of Elections in City of New York, 213 AD2d 209

[I st Dept. 1995]). Thus, a majority of the candidates of WEP who were nominated by petition

for offices voted for by all the voters of the State at the eneral election at which WEP was


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transformed into a party (November 20] 4) is required to decide who the rightful stewards are to

this independent body that has earned party status under Election Law 91-104(3). Here, the

Governor, Lieutenant Governor, Comptroller, and Attorney General, all were beneficiaries of

WEP independent nominating petitions in 20]4. For reasons that were not presented to this

court, only two of four of these statewide candidates signed certifications of the WEP FialaJGold

respondents. In this case, all four of the candidates happen to be Democrats, and they are split

equally, 2-2. Had two Democrats and two Republicans run on the line, such a stalemate would

certainl: be predictable, and within the Legislature's contemplation. Reasonable minds might

conclude that the Legislature dominated by the two major parties, felt that a stalemate was an

appropriate outcome, to paralyze and render powerless the nascent party. In any event,

legislative intent is not the law. The words of the statute that the Legislature passed are the law.

As petitioner's counsel correctly states, two is not a majority of four, which leaves the WEP

FialaJGold respondents on equal footing with the other WEP factions--unabie to establish that

they represent WEP.

Notably, even if this court were to embrace the judicial yoga-like contortions that would

allow it to discount the WEP Tkaczyk and WEP Tamberlin filings and rule.s as "cynical" and

"bogus" attempts to invade the party as respondents view them, and not apply Election Law 96-

128(4), the certificates of nomination are invalid for a second reason. As recited above, the WEP

FialaJGold respondents filed two different sets of rules all by themselves. This, in and of itself,

creates a "question or conflict relating to the rules or the rule-making body" as outlined in 96-

128(4). Both sets of rules are labeled exactly the same. The second set of rules is not noted as

"Amended" nor does either set have an actual date (other than the stamp from SBOE). At first

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glance, the differences between them appear to be a simple matter of whether Rachel Gold is a

Member of the Executive Committee or.the Treasurer. However, there is also an extraordinarily

instructive change that was made to Article II, paragraph 2 ("Officers"). The first set of rules

adopted and certified on June 25, 2015 by Cuomo and Hochul, states specifically:

a. The Officers of the Interim State Committee shall be a State Chair,

Vice Chair, Secretary, and Treasurer. Consistent with New Yark State Election Law. 96-128, these initial officers of the Interim State

Committee shall be elected by majority vote of the state wide

candidates of the WEP at the General Election during which the

WEP obtained "party status," and identified on Exhibit A of these

Rules.

Therefore, the very rules themselves, filed by the WEP/Gold/Fiala respondents, mandate ("shall

be") that the Interim State Committee mUst consist of four specifically enumerated officers. The

WEP Fiala/Gold respondents named three officers, leaving two of the mandated offices empty.

Next, the rules received July 2, 2015 from WEP Fiala/Gold very clearly state that the Interim

State Committee must be elected using the method stated in Election Law 96-128(4) that this

court has agreed otherwise would not have applied in the absence of the filings by WEP Tkaczyk

and WEP Tamberlin. However, given the fact that the party rules filed on July 2, 2015 require a

standard above that of the Election Law, that standard must be applied, as the duly adopted rules

of a political party should be given effect (Master v Pohanka, 10 NY3d 620 [2008]; McAuliffe v

Senn, 97 AD2d 745 [2d Dept 1983]).

Apparently, the WEP Fiala/Gold respondents recognized this problem rather quickly

thereafter, after failing to obtain the signature on certifications of rules from either of the other

two statewide candidates from the 2014 election that had the WEP line. A second set of rules

was filed with SBOE on July 14,2015, which was completely different from the initial July 2,


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2015 rules with respect to the election of officers (Article II, section 2), The reference to

Election Law 96-128 was deleted, and reference to "Article 11,section I of these Rules" was also

deleted.

The conclusion is inescapable. The WEP Fiala/Gold respondents created rules, and

Cuomo and Hochul certified their agreement with them on June 25, 2015. If Election Law 96-

128(4) on its own--and in the absence of a competing set of rules or rule-making body--requires

a majority of four-as discussed, this court does not believe it does (supra)--then those two

certifications are not enough. Or, if this court is correct, and Election Law 96-128(4) does not

apply in the first instance, then the WEP Fiala/Gold rules themselves require a majority of four,

and likewise, the two certifications are not enough, and by their own rules, the WEP Fiala/Gold

rules are invalid.

The next problem is that both sets of WEP Fiala/Gold rules have an identical Article II,

section I, which sets forth very specific requirements for the interim committee to be formed at

the first organizational meeting of the WEP:

a. Until a State committee is duly elected by the enrolled voters

of WEP in accordance with Article 2 of the New York State

Election Law and these Rules, an Interim Committee consisting of

at least thirteen (13) individuals, but no more than fifteen (15)individuals, shall exercise all of the powers of the State

Committee as set forth herein and by applicable law (Emphasis

added). .

Even if the court were to get past Election Law 96-128, and the July 2, 2015 rules' requirement

for applying the Election Law 96-128 majority of statewide candidates, the organization meeting

and Interim State Committee failed to abide by either set of rules offered by the WEP/Gold/Fiala

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respondents. The Interim Committee certified on July 23, 2015 by Barbara Gold and Kathleen

Joy consists of only ten (10) interim officers. Just as two is not a majority of four, neither is ten

equal to thirteen. Forthis additional reason, the nominations by the WEP Fiala/Gold respondents

are invalid, null, and void.

In conclusion, based upon the facts presented, and in accordance with Election Law 96-

128, the WEP Fiala/Gold respondents are unable to meet the minimum threshold that they need

to perform any operations of the Women's Equality Party, which would include the issuance of

certificates of nomination. The WEP Fiala/Gold respondents have not met the requirements of

Election Law 96-128(4), which applies to them: based upon the filings of the WEP Tamburlin,

and WEP Tckaczyk rules; based upon multiple WEP Fiala/Gold rules filings; and based upon

the rules filed with SBOE on July 2,2015. The WEP Fiala/Gold respondents also failed in

multiple other ways to abide by the rules that they proffer as the basis for their actions. The

Certificate of Nomination for the respondent candidates herein is invalid, null, and void, as it was

issued by an interim committee consisting of less than the number of members required by the

party rules. Election Law 96-128(1) clearly states that "nominations shall be made by the rules

of such party." The nominations at issue here were not made in accordance with the rules of

WEP Fiala/Gold even ifthey were found to be in effect.

In light of the decision herein, this court has not reached the question of whether. WEP

Fiala/Gold respondents' certificate of nomination is invalid pursuant to 96-1 28(1)(g), because the

issue is deemed moot.

Accordingly, for the stated reasons, it is hereby

ORDERED, that the petition is granted; and it is further


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ORDERED, that the Nassau County Board of Elections and/or State Board of Elections is

directed, restrained, and enjoined from placing the names of the respondent candidates upon the

official ballots of the November, 2015 General Election as candidates of the Women's Equality

Party; and it is further

ORDERED, that petitioners are directed to serve a copy of this Decision and Order, with

notice of entry, upon the attorneys for all parties within 10 days of such entry and file proof of

service within five (5) days of service; and it is further

ORDERED, that all other applications and/or branches of relief not herein decided are

denied and/or deemed moot as a result of this decision.

This constitutes the Decision and Order of the court.

Dated: October 16,2015

White Plains, New York

HO '.CHARLES D. WOOD

Justice of the Supreme Court

To: Bee Ready Fishbein Hatter & Donovan, LLP

John Ciampo]i, Of Counsel

Stephen L. Martir, Esq.

Attorneys for Petitioners

] 70 Old Country Road, Ste 200

Mineola, NY ] 150]

GreenbergTraurig, LLP•

Steven C. Russo, Esq.Counsel for Respondents WEP, GoldlFialaiJoy

200 Park Ave

New York, NY 10166

] 2


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Harris Beach, PLLC

Keith M. Corbett, Esq.Attorneys for Respondent Candidates

333 Earle Ovington Blvd., Ste 901

Uniondale, NY 11553

Office of the Nassau County Attorney,

Alpa Sanghvi, Esq.

Counsel for Nassau County Board of Elections

One West StreetMineola, NY I 150 J

Kimberly Galvin, Esq.

-Counsel for NYS Board of Elections

40 N. Pearl St., Ste 5

Albany, New York 12207

wep nassau decision

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