MatterofSloanvKellner ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 21, 2014 519493
________________________________
In the Matter of SAM SLOAN, as
Candidate for Governor of
the State of New York,
et al.,
Appellants,
v MEMORANDUM AND ORDER
DOUGLAS A. KELLNER et al., as
Commissioners Constituting
the New York State Board of
Elections, et al.,
Respondents,
et al.,
Respondent.
________________________________
Calendar Date: August 21, 2014
Before: McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.
__________
Neil Grimaldi, New York City, for appellants.
Kathleen O'Keefe, New York State Board of Elections,
Albany, for Douglas A. Kellner and others, respondents.
__________
Per Curiam.
Appeal from an order and judgment of the Supreme Court
(Ceresia, J.), entered August 15, 2014 in Albany County, which
dismissed petitioners' application, in a proceeding pursuant to
Election Law § 16–102, to declare valid the designating petition
naming petitioners Sam Sloan, Nenad Bach and Geeta Rankoth as
Democratic Party candidates for certain statewide public offices
in the September 9, 2014 primary election.
-2- 519493
Petitioners, Sam Sloan, Nenad Bach and Geeta Rankoth, filed
a designating petition nominating them as Democratic Party
candidates for the respective public offices of Governor,
Lieutenant Governor and Comptroller of the State of New York.
The designating petition further nominates a nonparty, Neil V.
Grimaldi, as Democratic Party candidate for the public office of
Attorney General of the State of New York.1 Objections were
filed with regard to the candidacy of Rankoth and asserted, among
other things, that the petition contained fewer than one third of
the 15,000 signatures required for any of the four candidacies
(see Election Law § 6-136 [1]). The New York State Board of
Elections agreed and invalidated the designating petition in its
entirety. Petitioners thereafter commenced this proceeding
seeking a declaration that the State Board's composition is
unconstitutional and an order directing that they be included on
the primary ballot. Supreme Court dismissed the petition, and
petitioners appeal.
We affirm. As Supreme Court properly found, the present
proceeding is jurisdictionally defective due to the "failure to
name and serve all those who filed objections to the designating
petition" (Matter of Gadsen v Board of Elections of City of N.Y.,
57 NY2d 751, 752 [1982]; see Matter of Biscone v Scaringe, 59
AD2d 794, 794 [1977], affd 42 NY2d 1075 [1977]).
Assuming without deciding that the above jurisdictional
defect only applies to Rankoth – against whose candidacy
objections were filed – petitioners also argue that the
composition of the State Board does not give equal weight to each
voter as required by the Equal Protection Clause of the 14th
Amendment to the US Constitution (see Reynolds v Sims, 377 US
533, 560-561 [1964]). They are incorrect, as the underlying
principle of one vote per person does not apply to an appointive
board, especially where it is charged with administrative duties
(see Rosenthal v Board of Educ. of Cent. School Dist. No. 3 of
Town of Hempstead, 497 F2d 726, 729 [2d Cir 1974]; see also
Hadley v Junior College Dist. of Metropolitan Kansas City, 397 US
1Grimaldi's application to be added as a petitioner was
denied by Supreme Court as untimely.
-3- 519493
50, 54 [1970]; Sailors v Board of Educ. of County of Kent, 387 US
105, 111 [1967]; compare Board of Estimate of City of N.Y. v
Morris, 489 US 688, 694-696 [1989]). The State Board was thus
properly constituted, and was free to hold that the designating
petition, which lacked the necessary number of signatures to
support any of petitioners' candidacies, was facially defective
and invalid in its entirety (see Election Law § 6-154 [1]; Matter
of Hunting v Power, 54 Misc 2d 120, 122 [1967], affd 28 AD2d 826
[1967], affd 20 NY2d 680 [1967]).
Petitioners' remaining arguments have been considered and
found to lack merit.
McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.,
concur.
ORDERED that the order and judgment is affirmed, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court