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Judgment against nominees upheld

By: Denise M. Champagne//October 25, 2011

Judgment against nominees upheld

By: Denise M. Champagne//October 25, 2011//

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It is likely there will be no Independence Party candidates for supreme court in the Fifth Judicial District.

The Appellate Division, Third Department, has ruled that the party’s Sept. 25 judicial convention lacked an adequate number of delegates. By law, supreme court justice candidates, who hold statewide office, are selected through a judicial convention process.

The appellate division upheld the Oct. 17 judgment of Albany County Acting Supreme Court Justice Thomas J. McNamara who declared invalid the Independence nominating certificates of candidates Michael F. Young, Erin P. Gall, James P. McClusky and Prescott E. Klosner. All four are Republicans who will appear on that party’s line in the Nov. 8 general election.

Maleta Snell of Onondaga County, an Independence Party member, challenged their nominations, claiming the convention results violated state Election Law.

“They just have to learn they have to run delegates according to the ratio of votes for governor,” said Albany attorney James E. Long, who represents Snell. “If this continues, they’re never going to a candidate in the Fifth District.”

Specifically, Snell maintained the composition of the delegates elected to the nomination convention were unproportional as set forth in Election Law 6-124.

Schenectady attorney James E. Walsh said Tuesday morning he had not spoken to all of his clients yet so a decision had not been made regarding a possible further appeal. He expected a decision would be made no later than today.

According to the law, the number of delegates and alternates, if any, is determined by party rules in accordance with a ratio of the number of votes cast by party members in the preceding gubernatorial election. Independence Party rules provide for one delegate and one alternate from each Assembly district in the judicial district for each 750 votes.

The Fifth Judicial District includes 12 Assembly districts. Applying the ratio, the party allows for a total of 18 delegates, although the supreme court determined the appropriate number would be 20. Only 12 delegates were selected, which the appellate Division ruled was insufficient compliance with the statutory requirement of substantial proportionality.

The appellate division specifically notes the four largest Assembly districts had a combined total of 6,762 votes in the 2010 gubernatorial election, or 56 percent of the total 11,897 votes cast in the Fifth Judicial District. Four delegates, or 30 percent of the 12 elected delegates, represented the 56 percent of voters at the judicial convention.

In contrast, the four-judge panel notes, two of the smallest Assembly districts constituted 3 percent of the total 2010 votes, yet had one delegate each, the same number given to the larger districts. For example, there were 207 and 166 votes, respectively in the 111th and 129th Assembly districts, compared with 2,022 votes in the 121st and 1,873 in the 124th, two districts that include a large portion of Onondaga County.

“While there is no question that the statute does not require strict proportional representation, we simply cannot say that, in this case, ‘most districts were properly represented in proportion to their voting strength,’” the panel ruled, citing Matter of Azria v. Salerno, 68 NY2d 887, 889 [1986]. “Accordingly, we are constrained to conclude that the petition was properly granted.”

The higher court rejected arguments that the matter should have been dismissed because Snell did not name the executive committee of the state Independence Party in the suit. She did enjoin the party’s State Committee, which both courts ruled consist of the same officers. Since she did name the permanent chair and secretary, the appellate division ruled the interests of the executive committee were “adequately represented,” Matter of New York State Comm. Of the Independence Party v. New York State Bd. Of Elections, 87 AD3d 806, 811 (2011).

“We are similarly unpersuaded that petitioner lacked standing to bring this proceeding,” stated the decision, authored by Justice Thomas E. Mercure, presiding; and joined by Justices Karen K. Peters, E. Michael Kavanagh and Leslie E. Stein. “Petitioner is a duly-registered member of the Independence Party who filed objections to the nominations,” according to Election Law 16-102.

“I think that the appellate division was inaccurate as to the status of the law,” Walsh said. “I don’t believe the average voter has the standing to attack the actions of the convention.”

He said by allowing Snell to challenge the convention, the court allowed politics to enter into the selection of supreme court judicial candidates. He said the convention process is supposed to insulate judges and remove them from the political process.

Long said he had a case that raised a similar objection in 2008, In the Matter of Wayne E. Brouillette v. Thomas J. Cerio.

“You can’t have a convention where only 60 percent of the electorate in the Fifth Judicial District is represented at a convention,” Long said. “That’s not substantial.”

He pointed out another irony: That the statute was set up to avoid having Onondaga County be the only one to elect delegates and it ended up with the same number of delegates as the smaller counties. He said there are four Assembly districts in the county. Of those, Long said one district was entitled to three delegates and another two, but each had one.

As for a further appeal, Long said the Court of Appeals would likely frown on a petition seeking leave that was not filed immediately after the decision, noting it should have been filed Monday and that the election is only two weeks away.

He said the other option would be to go to federal court, claiming disenfranchisement, but that no federal issues were preserved.

Also running for four available seats are Democrats Charles Merrell, Patrick MacRae, David Magnarelli and Thomas Buckel. A ninth candidate, John Stone, is running solely on the Conservative line; along with Merrell, MacRae and McClusky. Magnarelli and Buckel are also endorsed by the Working Families Party.

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