Scaringe v. Ackerman

119 A.D.2d 327, 506 N.Y.S.2d 918, 1986 N.Y. App. Div. LEXIS 60628

Opinions

OPINION OF THE COURT

Casey, J.

We hold that this proceeding, seeking to prohibit respondent State Board of Elections from placing respondent F. Stanton Ackerman’s name on the ballot in the November 4, 1986 general election as the Democratic Party candidate from the 103rd Assembly District, is subject to the 14-day period of limitations provided for in Election Law § 16-102 (2). Special Term’s judgment granting the petition must, therefore, be reversed and the petition dismissed.

Petitioners contend that Ackerman cannot meet the constitutional requirement that he be a resident of the Assembly District for the 12 months immediately preceding his election (NY Const, art III, §7). Conceding that they failed to commence this proceeding within the 14-day period prescribed by Election Law § 16-102 (2), petitioners argue that this is a CPLR article 78 proceeding, not a judicial proceeding under Election Law article 16. The basis for this argument, according to petitioners, is that the underlying issue relates to Ackerman’s substantive qualifications, not to the sufficiency of his designating petition. We reject this argument.

Irrespective of the label given to the proceeding or the words used to describe the issue, the relief sought by petitioners seeks judicial intervention in the election process to remove a candidate from the ballot. As we said in Matter of Garrow v Mitchell (112 AD2d 1104, 1105), "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 Mansfield v Epstein, 5 NY2d 70, 74; Matter of Lisa v Board of Elections, 54 AD2d 746).” Election Law § 16-102 (1) expressly confers upon Supreme Court jurisdiction over proceedings to contest the nomination or designation of any candidate for any public office. Petitioners’ attempt to have Ackerman’s name removed from the ballot as the Democratic Party candidate from the 103rd Assembly District clearly constitutes a challenge or contest to the designation or nomination of a candidate for public office. Since Election Law § 16-102 (1) provides a remedy for the relief sought by petitioners, they cannot avoid the time requirement of the statute by initiating a new and different proceeding having no statutory basis (see, Matter of Garrow v Mitchell, supra, p 1106).

We find unpersuasive petitioners’ highly technical argument that this proceeding falls outside the ambit of Election Law § 16-102 since the issue concerns Ackerman’s substantive qualifications and not the sufficiency of his designating petition. The constitutional provision relied upon by petitioners (NY Const, art III, § 7) does not prescribe any substantive qualification applicable to those in the election process. Rather, it prohibits a person from serving as a member of the Legislature unless certain residency requirements have been met. The substantive qualifications for candidates in the election process are found in Election Law § 6-122.

Footnotes

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* Since Election Law article 6 contains the provisions which govern the nomination and designation of candidates for election to public office (see, Election Law § 6-100), and since Election Law § 16-102 (1) authorizes the court to entertain proceedings to contest the nomination or designation of any candidate for public office, it follows that any proceeding to remove a candidate from the ballot for an alleged failure to comply with a requirement of Election Law article 6 must be brought under Election Law § 16-102 (1) and is subject to the time restrictions of § 16-102 (2) (see, e.g., Matter of Baird v Ness, 109 AD2d 975). Accordingly, we conclude that a proceeding to remove a candidate from the ballot, based upon allegations that the candidate does not meet certain constitutional residence requirements to hold office and, therefore, cannot be a candidate pursuant to Election Law § 6-122 (3), must be commenced in accordance with the requirements of Election Law § 16-102.

If we were to accept petitioners’ claim that there is a distinction between a challenge to a candidate’s designation or nomination based upon the candidate’s substantive qualifications and a challenge based upon other deficiencies under Election Law article 6, we would nevertheless dismiss the petition. The Constitution gives each house of the Legislature the exclusive power to “be the judge of the * * * qualifications of its own members” (NY Const, art III, §9). This authority has been delegated to the judiciary in proceedings brought pursuant to Election Law article 16, but outside the context of such proceedings a determination by the courts as to whether a person meets the qualifications necessary to be a member of the Assembly infringes on the power of the Assembly to be the judge of its members’ qualifications (see, Matter of Harwood v Meisser, 41 AD2d 531, affd 31 NY2d 1000).

The only remedy available to contest Ackerman’s designation or nomination on the ground that he did not meet the qualifications necessary to hold office as a member of the Assembly is a judicial proceeding pursuant to Election Law § 16-102 (1), and since petitioners failed to commence this proceeding within the time limits prescribed by Election Law § 16-102 (2), the motion to dismiss the petition must be granted.

Election Law § 6-122 provides: "A person shall not be designated or nominated for a public office or party position who (1) is not a citizen of the state of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications thereof.”