Matter of Korman v. New York State Board of Elections , 28 N.Y.S.3d 149 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 24, 2016 522647
________________________________
In the Matter of BARRY KORMAN
et al.,
Appellants,
v
NEW YORK STATE BOARD OF MEMORANDUM AND ORDER
ELECTIONS,
Respondent,
and
RAFAEL EDWARD ("TED") CRUZ,
Respondent.
________________________________
Calendar Date: March 23, 2016
Before: Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.
__________
Roger J. Bernstein, New York City, and Eisner & Associates,
PC, New York City (Benjamin N. Dictor of counsel), for
appellants.
Daniel M. Sullivan, New York City, and Lally & Misir, LLP,
Mineola (Grant M. Lally of counsel), for Rafael Edward ("Ted")
Cruz, respondent.
__________
Per Curiam.
Appeal from an order of the Supreme Court (Weinstein, J.),
entered March 7, 2016 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to Election
Law § 16-102, to declare invalid the certificate of designation
naming respondent Rafael Edward ("Ted") Cruz as a Republican
Party candidate for the office of President of the United States
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in the April 19, 2016 presidential primary election.
On January 26, 2016, respondent Rafael Edward ("Ted") Cruz
filed three letters with respondent New York State Board of
Elections, which the Board deemed to constitute a certificate of
designation, seeking to have his name placed on the ballot for
the April 19, 2016 presidential primary election as a Republican
Party candidate for the office of President of the United States
(see Election Law § 2-122-b [3] [b]). Three weeks later,
petitioners each filed a general objection and specifications to
Cruz's certificate of designation, asserting that Cruz is not
eligible to be a candidate for the office of President of the
United States because he is not a natural born citizen of the
United States as required by the US Constitution (see US Const,
art II, § 1 [5]; Election Law § 6-122). Thereafter, on February
26, 2016, petitioners commenced this proceeding pursuant to
Election Law § 16-102 seeking to declare invalid Cruz's
certificate of designation on the basis that Cruz is a natural
born citizen of Canada and not the United States.1 In the
interim, the Board determined that petitioners' objections were
invalid, reasoning, as is relevant herein, that the objections
raised issues that were beyond the ministerial purview of the
Board and that they were not timely filed (see Election Law
§ 6-154 [2]). Respondents each answered the petition and
asserted, among other defenses, that petitioners lacked standing
to maintain this proceeding – with the Board asserting that
petitioners' lack of standing was due to their failure to file
timely objections. Supreme Court dismissed the petition,
finding, among other things, that petitioners failed to file
their objections in a timely manner and that such failure
deprived the court of jurisdiction over the proceeding.
Petitioners appeal.
1
This proceeding was originally commenced in New York
County, but it was transferred to Albany County. In addition,
the initial petition only named the Board as a respondent;
however, petitioners amended the petition, with Supreme Court's
permission, to name Cruz as an additional respondent.
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We affirm. "It is well settled that a court's jurisdiction
to intervene in election matters is limited to the powers
expressly conferred by statute" (Matter of Scaringe v Ackerman,
119 AD2d 327, 328 [1986], affd on op below 68 NY2d 885 [1986]
[internal quotation marks and citations omitted]; accord Matter
of Hoerger v Spota, 109 AD3d 564, 565 [2013], affd 21 NY3d 549
[2013]; Matter of New York State Comm. of the Independence Party
v New York State Bd. of Elections, 87 AD3d 806, 809 [2011], lv
denied 17 NY3d 706 [2011]). Election Law § 16-102 confers
standing to contest a certificate of designation by way of a
judicial proceeding on, among others, "a person who shall have
filed objections, as provided in" the applicable provision of the
Election Law (Election Law § 16-102 [1] [emphasis added]).
Election Law § 6-154 – the provision by which petitioners filed
their objections to Cruz's certificate of designation – provides,
in pertinent part, that written objections to a certificate of
designation can be filed by any voter registered to vote for such
public office and requires that general objections "shall be
filed . . . within three days after the filing" of the
certificate of designation (Election Law § 6-154 [2]). After the
filing of general objections within the prescribed time period,
Election Law § 6-154 mandates that "specifications of the grounds
of the objections shall be filed within six days thereafter" and
dictates that, if such specifications are not timely filed, "the
objection shall be null and void" (Election Law § 6-154 [2]).
Failure to comply with these constraints deprives a petitioner of
standing to maintain a proceeding pursuant to Election Law §
16-102 (1) (see Matter of Bennett v Justin, 77 AD2d 960, 961
[1980], affd on op below 51 NY2d 722 [1980]; Mackay v Johnson, 20
Misc 3d 1136[A], 2008 NY Slip Op 51748[U], *4 [Sup Ct, Nassau
County 2008], affd 54 AD3d 428 [2008]; Matter of Village of
Herkimer Republican Party, 119 Misc 2d 801, 806 [Sup Ct, Herkimer
County 1983]; see also Matter of Green v Mahr, 231 AD2d 480, 480
[1996]).
Here, with Cruz having filed his certificate of designation
on January 26, 2016, petitioners had until January 29, 2016 to
file their general objections and until February 4, 2016 to file
their specifications (see Election Law § 6-154 [2]; see also
Election Law § 1-106 [1]). It is undisputed that petitioners did
not file their general objections and specifications until
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February 17, 2016, thus failing to comply with the prescribed
time frame set forth in Election Law § 6-154 (2). As a result,
petitioners have failed to meet a condition precedent to standing
– namely, that they file objections in compliance with Election
Law § 6-154 (2) (see Election Law § 16-102 [1]; Matter of Bennett
v Justin, 77 AD2d at 961; see also Matter of Bush v Salerno, 51
NY2d 95, 97-98 [1980]; Matter of Breitenstein v Turco, 254 AD2d
566, 567 [1998]). Under these circumstances, we are simply
unable to relax the mandatory filing requirements of Election Law
§ 6-154 (2) or excuse petitioners' noncompliance therewith.
Accordingly, we find no reason to disturb Supreme Court's
determination. Our holding renders petitioners' remaining
contentions academic.
Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.,
concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court