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Decision & Order
-agalnst Index No.: 19-f 549




Supreme Court. U lster County

Motion Retum Date: May 17,2019
RJINo.: 55-19-00722

Present: Julian D. Schreibman, JSC


Timothy Bunch
Michael C. Malarczyk
Jaime E. Roxby
Self-Represented Petitioners
P.O. Box 200
Accord, New Y ork 12404

Lanny E. Walter, Esq.

Attomey for Respondentsi
Greta Baker and Sam ZurofskY
301 Van Vlierden Road
Saugerties, New York 12477

Schreibman, J.:

This is a special proceeding under the New York State Election Law. Petitioners seek to

invalidate the results of the April 28, 2019 Town of Rochester Democratic caucus on the grounds

that the caucus improperly barred candidates lbr public office from being nominated unless they

were physically present at the caucus. Respondents acknowledge that such a rule was imposed

but defend its propriety. Respondents also challenge petitioners' standing.

The Court has received and reviewed petitioners' Order to Show Cause and supporting

materials, respondents' Verified Answer, and supporting materials, and petitioners' reply affidavit.

The Court conducted oral argument on the moming of May 17,2019. Petitioners and respondents

agreed that a fact-finding hearing was unnecessary to the adjudication ofthe petition.

The Court concludes that the petition must be dismissed due to petitioners' failure to name

necessary parties. Because of the need to address and potentially review Election Law cases

expeditiously, the Court is setting forth its findings on the other issues raised by the parties in the

event that its determination regarding necessary parties is found to be erroneous. In particular, the

Court finds that (l) petitioners do have standing but (2) the petition is not meritorious.

Petitioners Failed to Join Necessary Parties

In this case, petitioners challenge the procedure by which the caucus nominated candidates

for Rochester Town Council and Rochester Superintendent of Highways. As set forth on the

Certificate of Nomination prepared at the conclusion of the caucus (Petitioners' Exhibit B), the

successfully nominated candidates for these positions were Jeffrey Frey (Superintendent), Erin

Enoven (Town Council) and Adam Paddach (Town Councit).r If the relief sought by petitioners

I The names of the candidates are hand-wdtten. The spelling of these names is not entirely clear
and may be incorrect.

is granted, the certificate of nomination ofthese candidates will be invalidated and they will have

to contend as candidates at a new caucus. It is well-established law that candidates such as these

are necessary parties to a proceeding challenging their nomination:

[W]hen a certificate of nomination that covered a number of

candidates is challenged in a proceeding that sought to invalidate
the certificate and require a new party caucus, all the nominees
on the certificate must be joined since, if the petition is granted,
they would all be disqualified as candidates and would run the
risk of not being nominated at the new caucus. (.Castracan v
Colavita, 173 AD2d 924,925 [3'd Dept. 1991]).

None of Mr. Frey, Ms. Enoven or Mr. Paddach are named as respondents in this petition.

The only named respondents are Greta Baker, who served as Chair ofthe caucus; Sam Zurofsky,

who served as Secretary ofthe caucus; and, the Republican and Democratic Commissioners ofthe

Ulster County Board of Elections. The failure to name the successful candidates is a fatal

procedural defect. "The law is clear that failure to join necessary parties in a proceeding pursuant

to the Election Law prior to the time prescribed for initiating such a proceeding requires dismissal

of the petition. Since petitioners' failure to join necessary parties in this proceeding is apparent,

this proceeding is fatally defective." (Castracan,lT3 AD2d. al926 (internal quotations and citation

omitted); see also Sahler v Callahan, 92 AD2d,976,977 [3'd Dept. 1983]). Here, the failure to

name as parties the three successful candidates in the challenged elections compels the same result:

the coufi must dismiss the petition.

Petitioners Have Standins and Were Not Required to File Obiections with thc laard d Elcqlaru

Petitioner Bunch is the Chairman of the Town of Rochester Republican Committee.

Petitioner Jaime Roxby is an effolled Republican in the Town of Rochester who was nominated

and present at the Democratic caucus but was not chosen as a candidate. Petitioner Malarczyk

attended the caucus and observed the alleged violations.

Election Law $ 16-102 provides that the nomination ol "any candidate fbr any public

ofIce. . . may be contested in a proceeding instituted in the supreme court[.]" The statute goes on

to identily three categories of persons who may institute such proceedings: (l) any aggrieved

candidate, (2) the chairman of any party committee, or (3) "a person who shall have filed

objections, as provided in this chapter."

In the petition, petitioner Bunch identified himself as the "Town of Rochester Chair."

Respondents contend that this is facially def'ective because petitioner Bunch is not identified as the

chairman of a "party committee." The Court rejects this objection. Petitioner Bunch appeared in

court as a self-represented Iitigant and identified himself as the Chairman ofthe Town ofRochester

Republican Committee. Respondents have raised no basis to doubt this representation. The

omission of the word "Republican" from the petition is plainly a typographical error. (The position

of "Town of Rochester Chair" does not exist.) Petitioner Bunch falls plainly within the scope of

persons authorized by law to bring such a petition.

The Court finds no support for respondents' contention that a political party chairman has

standing in such cases only where the challenged misconduct can be seen as an injury to that party,

as when a caucus illegally bars members of another party from being nominated. No such

limitation is expressed in the statute nor is the Court aware of any caselaw circumscribing the

standing ofa party chairman. To the contrary, in Scanlan v Turco, the Third Department upheld

the standing of a political party chairman where the alleged defect merely concerned whether a

caucus had been properly noticed. (264 AD2d 863, 863 [3'd Dept. 1999]). Accordingly, petitioner

Bunch has standing to sue.

Because petitioner Bunch has standing, any defect in the standing of the other petitioners

is moot. Nonetheless, the Court also observes that it accepts petitioners' characterization of

petitioner Roxby as an aggrieved candidate with standing to sue, at least as to the election for Town

Council. Although not a Democrat, petitioner Roxby was eligible to be nominated as a candidate

of the Democratic party at the caucus and her name was duly put forward by enrolled Democrats.

The parties agree that the caucus nominated two candidates lor Town Council via a single ballot

in which eligible caucus attendees could vote for up to two candidates. The two highest vote

recipients would be deemed nominated by the caucus for the general election. Ms. Roxby was

nominated, was present, and caucus aftendees could vote for her, along with the other nominated

candidates. However, another Republican, Fallon Wynkoop, was put in nomination but was not

present. The caucus chair ruled her ineligible to be nominated by application of the attendance

rule and caucus attendees could not vote for her. The disqualification of Ms. Wynkoop necessarily

impacted the balloting for the Town Council nomination. As another candidate for Town Council

on the same vote, Ms. Roxby is an aggrieved candidate with standing to sue.

Respondents also argue that petitioners were obligated to file fbrmal objections with the

Ulster County Board ofElections before bringing this lawsuit and that their failure to do so requires

dismissal of the petition. Respondents' objection is incorrect. As set tbrth above, both political

party chairmen and aggrieved candidates are statutorily authorized, without further qualification,

to commence a proceeding challenging these nominations. The obligation to first file objections

is limited to any other person not specifically authorized to bring suit.

A Party May Adopt a Rule Requiring Prospective Candidates to be Present at the Caucus

"Party caucuses should be the fair, full, and free expression of the party will, and such

expression should not be thwarted by sharp practice, or throttled by force or fraud." (ln re Broat,

6 Misc. 445, 452 [Sup.Ct. Albany Cty. 1894]). This caucus adopted a set of rules that included

the following provision: "Only individuals who are physically present to answer questions and to

confirm their acceptance oithe nomination are eligible to be nominated." Petitioners contend in

the first instance that respondents may not impose such a restriction. Neither side has cited, and

the Court has not found, any case addressing such an attendance rule. The Courl finds no support

in the law for petitioners' contention.

Petitioners have not identified a specific prohibition in the law nor a general prohibition

that could be read to encompass this rule. Moreover, as petitioners themselves point out, the

Election Law plainly prohibits the adoption ofa rule barring the nomination ofpersons other than

members of the caucusing party. (Election Law $ 6-120[4]; Burlolit v Olson,87 AD3d 1264 l4th

Dept. 2011]). By operation of the venerable principle of expressio unius est exclusio alterius the

fact that the legislature explicitly barred one type ofrestriction implies that it has not barred others.

The Legislature knows how to enact limitations on a party's authority to impose qualifications on

its candidates and, as to an attendance requirement for caucuses, has not done so.

There is also no reason to suspect this rule of being a subterfuge to a prohibited end, such

as blocking the nomination of Republicans. As respondents point out, the law extends broad

deference to political parties to govem themselves and establish rules for decision making,

including at a caucus. (See, e.g. Engel v Tutunjian, 129 Misc.2d 987, 988 [Sup.Ct. Renss. Cty.

19851). This deference is, of course, not unlimited or judicial review would be meaningless.

"[U]nder our form of govemment the primaries, caucuses, and conventions of parties should be

sunounded by all the safeguards, and be conducted with the same conformity to law, that our

regular elections should be; and whether they have been so conducted is to be determined by the

courts[.]" (ln re Broat,6 Misc. at 448).

In the present case, the two-fbld reasons for the rule are set forth in its text: to ensure that

persons nominated at the caucus may be subjected to questions regarding their candidacy and to

ensure that candidates chosen by the caucus will accept the nomination. These are bona./ide

objectives ofa party caucus. Furthermore, it is undisputed that this caucus accepted and voted on

the nomination of another Republican - petitioner Roxby who was present, in confbrmity with
the rule. Accordingly, the Court sees no legal reason that the caucus could not adopt and enforce

the contested rule.

Petitioners raise two additional arguments in the event that the rule is not per se invalid.

First, they argue that, by statute, any person nominated and seconded must be given a vote. They

argue that this statutory obligation trumps any party rule. The court finds this argument

unpersuasive. As petitioners concede there are undoubtedly persons who a caucus attendee might

put forward but who are ineligible - the most obvious being someone who does not meet the legal

residency requirement for Town office. Clearly it would be pointless to conduct batloting

involving an ineligible candidate. The same rationale applies to the caucus rules and does not

elevate the rule over the statute. lt appears in this case that after each of the absent candidates was

nominated and seconded the caucus chair then sought to ascertain his or her presence. This was

an entirely appropriate time to assess compliance with the attendance rule. It makes no sense to

conclude that the caucus chair could enforce the rule before a second is made but not after.

Finally, while petitioners accept that the rule was properly adopted at the commencement

of the caucus, they argue that the caucus chair shoutd have given the body the opportunity to

suspend or change the attendance rule upon the recognition that a candidate, duly nominated and

seconded, was not present in the room. Procedurally, this would have required a motion to be

made and seconded and a vote ofthe caucus taken. Petitioners argue that the objections raised by

one or more attendees at the time should have been construed as such a motion.

''[F]air play and good faith should prevail, and a substantial compliance with the party and

state law [shall] be compelled" in the conduct of caucuses. (ln re Broat,6 Misc. at 452).

Nonetheless, "it is not to be expected that political caucuses will be conducted with the order and

decorum ofa church meeting or Sunday school[.]" (1d). Here, while the caucus chair might have

guided an attendee in the procedural method to challenge the rule, she was not obligated to do so.

Indeed, it is clear lrom the caucus agenda submitted by respondents that the caucus was organized

to comply fastidiously with applicable procedural rules. Had a proper motion to suspend the rule

been made, the caucus would have been obligated to decide it. In the absence of objectors

observing correct procedure, the caucus chair here was not obligated to derail the orderly conduct

of the caucus to assist them.

In sum, the Town ofRochester Democratic caucus, conducted on April 28,2019, properly

adopted a rule requiring candidates to attend the caucus in order to be nominated for public office.

Such a rule does not violate New York State Election Law. Petitioners have not shown any

impropriety in the application ofthe rule at this specific caucus.

At oral argument, respondents asked that this Court order an accelerated time period for

the filing of any appeal in this matter. The Court is not aware of any lawful authority it has to alter

the statutorily prescribed time periods nor, obviously, does it have any say in the administration of

a superior court. Therefore, respondents' request is denied.

Based upon the foregoing, it is hereby

ORDERED, that the petition is dismissed.

This shall constitute the Decision and Order of the Court. The original Decision and Order

and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster

County Clerk lor filing. The signing of this Decision and Order shall not constitute entry or filing

under CPLR g2220. Counsel is not relieved from the applicable provisions ofthat rule regarding

notice of entry.


Dared: flA.,.J J( , )o t I
Kinglton, New York



Papers considered: Order to Show Cause dated 8, 2019, with attached Affidavits and Exhibits
A-F; Verified Answer by Lanny E. Walter, Esq. dated May 13, 2019, with attached Exhibit A; and
Reply Affidavit of Timothy Bunch swom to on May 17, 2019.