Rudmann v. Scaringe

83 A.D.2d 913, 442 N.Y.S.2d 667, 1981 N.Y. App. Div. LEXIS 15342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 1981
• Status: Published

Opinions

Cross appeals from a judgment of the Supreme Court at Special Term (Cobb, J.), entered August 27,1981 in Albany County, which, inter alia, granted petitioner’s application, in a proceeding pursuant to section 16-102 of the Election Law to vacate and annul a certificate designating candidates for the Conservative Party nominations for the party offices of Delegate and Alternate Delegate from the 103rd Assembly District to the Third Judicial District convention. Pursuant to a rule of the Albany County Conservative Committee, the executive committee of that body designated respondents Patricia H. Hennessey, James J. Hennessey and others, as candidates for the Conservative Party nominations for the party offices of Delegate and Alternate Delegate from the 103rd Assembly District to the Third Judicial District convention. A certificate of designation nominating these candidates was filed with the respondent board of elections and petitioner thereafter filed objections and specifications of objections to the certificate. A hearing before the commissioners of election resulted in a split decision and the instant proceeding was commenced. In essence, petitioner contended that the certificate of designation should be invalidated since section 6-118 of the Election Law requires that nomination of a candidate for election to a party position to be elected at a primary shall be by designating petition. Citing its decision of the same date in Matter of Rudmann v Scaringe, a companion proceeding in which petitioner challenged the same executive committee’s designation of two candidates for certain county offices, Special Term granted the petition and vacated and annulled the certificate. In addition, pursuant to Matter of Brown v Ulster County Bd. of Elections (48 NY2d 614), the court directed the respondent board “to provide an opportunity at the primary election to write in the names of the Conservative Party nominees for said party offices”. Petitioner now appeals from Special Term’s judgment on the ground the court improperly directed a write-in primary. Respondents Patricia H. Hennessey and J ames J. Hennessey cross-appeal from so much of the judgment as vacated and annulled the certificate. Addressing ourselves first to the cross appeal, we conclude that respondents Hennessey, by merely noting that the Election Law provides for different processes by which candidates may obtain a party nomination, have failed to sustain their heavy burden of establishing that the statute deprives them of equal protection of law or is otherwise constitutionally infirm by imposing upon them a more burdensome task (see, e.g., Jenness v Fortson, 403 US 431). In this case, section 6-118 of the Election Law requires that the nomination of candidates to the party offices in question “shall be by designating petition”. Respondents neither deny that the statute requires petitions for lawful nomination nor do they explain why compliance with the law would have been discriminatory or would have made it more onerous for them to obtain their party’s nomination. Accordingly, the cross appeal must fail and we affirm so much of Special Term’s judgment as vacated the certificate of designation. We reach a different conclusion, however, with respect to Special Term’s direction that an opportunity be provided for write-in balloting at the primary election. In this case, other candidates for these offices have been duly nominated by petition in accordance with section 6-118 of the Election Law. Therefore, the instant situation is readily distinguishable from that in Matter of Brown v Ulster County Bd. of Elections (48 NY2d 614, supra) where, because of the failure of all pending designations for an office, the members of the political party were without a designated candidate for that office. The granting of an opportunity to ballot in this case would be tantamount to condoning a clear failure of compliance with the Election Law and, therefore, was an improper exercise of the discretion possessed by Special Term under that statute. Judgment modified, on the law and the facts, by reversing so much thereof as directed that an opportunity for write-in balloting be provided at the primary election, and, as so modified, affirmed, without costs. Sweeney, Kane and Casey, JJ., concur.