Willkie v. Delaware County Board of Elections

55 A.D.3d 1088, 865 N.Y.S.2d 739
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 23, 2008
StatusPublished
Cited by16 cases

This text of 55 A.D.3d 1088 (Willkie v. Delaware County Board of Elections) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willkie v. Delaware County Board of Elections, 55 A.D.3d 1088, 865 N.Y.S.2d 739 (N.Y. Ct. App. 2008).

Opinion

Spain, J.

Appeal from an order of the Supreme Court (Dowd, J.), entered November 1, 2007 in Otsego County, which, among other things, granted petitioners’ application, in a combined proceeding pursuant to Election Law § 16-108 and action for declaratory judgment, to reinstate their voter registrations.

Following the passage of a zoning ordinance in the Town of Bovina, Delaware County, which was publicly supported by each petitioner, an opponent of the ordinance filed affidavits with respondent challenging the voter registrations of each petitioner on the basis that he or she was not a resident of Bovina within the meaning of the Election Law (see Election Law § 5-220). In response, petitioners provided documentary evidence of their respective ties to Bovina. After reviewing this evidence, together with investigations conducted by the Delaware County Sheriff’s Department (see Election Law § 5-702) which revealed that petitioners’ Bovina homes were not used full time, respondent determined that petitioners Hall F. Willkie, Juliet F. Lauricella, Thomas A. Lauricella, David Hendricks and Stephen Robbins did not reside in Bovina and, consequently, were not qualified to vote there. Additionally, respondent placed the registrations of petitioners Julianne Bond-Shapiro, David Spry and Maria Spry [1089]*1089in inactive status after correspondence sent to their respective residences in Bovina was returned as unclaimed (see Election Law § 5-213).

Petitioners subsequently commenced this proceeding seeking an order directing respondent to reinstate their voter registrations in Bovina, and a declaration that the “eligibility of dual residents to register and vote at a given residence [should] be determined by considering the resident’s expressed intent, his or her renunciation of the right to vote elsewhere, and whether or not such person has legitimate, significant and continuing attachments to his or her voting residence of choice.” Petitioners also requested an injunction enjoining respondent from employing any standard other than that elucidated above. Supreme Court granted petitioners’ application in its entirety and respondent now appeals.

For voting purposes, we conclude that petitioners are, indeed, residents of Bovina. Ordinarily, respondent’s factual determinations are presumptive evidence of a petitioner’s voting residence (see Election Law § 5-104 [2]; Matter of Bressler v Holt-Harris, 37 AD2d 898, 898 [1971], affd 30 NY2d 529 [1972]). Here, however, no presumption arose because respondent did not apply the correct rule of law in determining the issue. Election Law § 1-104 (22) defines a residence as “that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return.” Although the plain language of the statute—and opinions expressed in dissent over the years (see People v O’Hara, 96 NY2d 378, 386-390 [2001, Rosenblatt, J., dissenting]; Matter of Bressler v Holt-Harris, 30 NY2d 529, 530-532 [1972, Jasen, J., dissenting]; Matter of Gallagher v Dinkins, 41 AD2d 946, 947-948 [1973, Martuscello, J., dissenting], affd 32 NY2d 839 [1973]; Matter of Gladwin v Power, 21 AD2d 665 [1964, Steuer, J., dissenting])—would support respondent’s interpretation of “residence” as the equivalent of domicile, requiring a finding that the individual has more significant contacts to that place than any other, the Court of Appeals has not interpreted the statute so narrowly. Indeed, it is clear that the Election Law “does not preclude a person from having two residences and choosing one for election purposes provided he or she has ‘legitimate, significant and continuing attachments’ to that residence” (Matter of Isabella v Hotaling, 207 AD2d 648, 650 [1994], lv denied 84 NY2d 801 [1994], quoting Matter of Ferguson v McNab, 60 NY2d 598, 600 [1983]; see People v O’Hara, 96 NY2d at 385).

“The crucial determination whether a particular residence [1090]*1090complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham’ ” (People v O’Hara, 96 NY2d at 385, quoting Matter of Gallagher v Dinkins, 41 AD2d at 947; see Matter of Shafer v Dorsey, 43 AD3d 621, 622 [2007], lv denied 9 NY3d 804 [2007]). Election Law § 5-104 (2) provides that, “[i]n determining a voter’s qualification to register and vote, the board [of elections should] consider, in addition to the [voter’s] expressed intent, his [or her] conduct and all attendant surrounding circumstances relating thereto,” including, among other things, “business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, . . . sites of personal and real property . . . , motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary.”

We find that each petitioner herein has demonstrated significant and genuine contacts with Bovina such that his or her choice of Bovina as his or her residence for voting purposes should have been honored. Six of the eight petitioners established that they have a home in Bovina and, although they live and work in New York City during the week, they spend most weekends and vacations in Bovina. Further, these petitioners demonstrated that their ties to Bovina were not a sham for voting purposes, but genuine, long-term contacts created out of a true desire to become part of the Bovina community. For example, Willkie has owned his home in Bovina since 1985 and lists his Bovina address on two separate bank accounts. Hendricks and his life partner purchased their home in Bovina in 1994 and Hendricks has been registered to vote in Bovina since 1996. Bond-Shapiro maintains a home in Bovina Center, having lived with her boyfriend in his family home since 2002.

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Bluebook (online)
55 A.D.3d 1088, 865 N.Y.S.2d 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willkie-v-delaware-county-board-of-elections-nyappdiv-2008.