Moskaluk v. Simpkins , 862 N.Y.S.2d 669 ( 2008 )

Cardona, P.J.

Appeal from a judgment of the Supreme Court (Hummel, J.), entered August 11, 2008 in Columbia County, which, among other things, dismissed petitioners’ application, in a proceeding pursuant to Election Law § 16-102, to declare valid the designating petition naming petitioners Thomas E. Reilly and Deborah A. Simonsmeier as (1) the Independence Party candidates for the position of delegate and alternate delegate, respectively, to the Independence Party Judicial District Convention, Third Judicial District, from the 108th Assembly District, and (2) the Independence Party candidates for the position of member of the Independence Party State Committee from the 108th Assembly District in the September 9, 2008 primary election.

On July 14, 2008, petitioners Thomas E. Reilly and Deborah A. Simonsmeier (hereinafter collectively referred to as petitioners) filed a designating petition nominating them as the Independence Party candidates for the position of delegate and alternate delegate, respectively, to the Independence Party Judicial District Convention, Third Judicial District, from the 108th Assembly District and, further, as the Independence Party candidates for the position of member of the Independence Party State Committee from the 108th Assembly District. Respondent Gary Simpkins, a registered voter in the Independence Party in the Town of Kinderhook, 108th Assembly District, filed objections contending, insofar as is relevant to this appeal, that the foregoing petition was improperly filed with the Columbia County Board of Elections (hereinafter the Board). The Board sustained that objection and invalidated the petition, finding that Election Law § 6-134 (1) precluded the filing of a combined petition under the circumstances presented here. Thereafter, petitioners, among others, commenced this proceeding pursuant to Election Law § 16-102 seeking to validate the combined petition only as it pertained to their nominations to the Independence Party State Committee. Supreme Court, among other things, dismissed petitioners’ application, prompting this appeal.^*

The sole issue here is whether Supreme Court properly dismissed petitioners’ application to validate that portion of the designating petition nominating them for the position of member of the Independence Party State Committee from the 108th Assembly District. In that regard, Election Law § 6-134 (1) provides, in relevant part, as follows: “A designating petition may designate candidates for nomination for one or more public offices or for nomination for election to one or more party positions or both, but designations or nominations for which the petitions are required to be filed in different offices may not be combined in the same petition” (emphasis added). As the 108th Assembly District is not wholly contained within a single county, a designating petition seeking to nominate a candidate from that district for the position of delegate to the Independence Party Judicial District Convention must be filed with the State Board of Elections (see Election Law § 6-144; Matter of Michaels v New York State Bd. of Elections, 154 AD2d 873, 874-875 [1989]). In contrast, membership in the Independence Party State Committee is determined on a county-by-county basis; consequently, a designating petition nominating a candidate for such position must be filed with the relevant county board of elections (see Election Law § 6-144).

Although petitioners concede that the combined designating petition, insofar as it pertains to the judicial delegate positions, was improperly filed, they nonetheless urge this Court to, in effect, excise or sever the offending portion of the petition and deem the balance thereof—nominating petitioners as the Independence Party candidates for the position of member of the Independence Party State Committee—as valid and properly filed with the Board. The plain language of Election Law § 6-134 (1) does not permit such relief (see Matter of McGough v Todd, 51 Misc 2d 255, 256 [1966, Simons, J.] [petition deemed void on its face “because it improperly combined candidacies requiring filing in different offices, which is prohibited by statute”]). Because the candidacies should not have been combined in the same petition in the first instance, we must hold that the designating petition was invalid at the outset and cannot thereafter be separated as requested by petitioners.

To the extent that petitioners argue that this interpretation of Election Law § 6-134 (1) is contrary to public policy and, further, that the statute should be construed in light of amendments to the Election Law designed to facilitate ballot access (see generally Election Law § 6-134 [10]), we note that the subject provision of the statute is clear and unambiguous on its face and the failure to conform with its requirements constitutes a fundamental flaw in the petition, which cannot be cured by the application of Election Law § 6-134 (10). Accordingly, we find petitioners’ various arguments to be unpersuasive.

Spain, Lahtinen and Malone Jr., JJ., concur.

* We note that although Simpkins successfully challenged before the Board six designating petitions nominating Independence Party candidates for various positions, Supreme Court ultimately determined that Simpkins had standing to challenge only the combined petition before us. No cross appeal from that judgment was filed.