STATE OF NEW YORK ALBANY COUNTY SUPREME COURT _____________________________________________________________________ ERIC J.

SNYDER, taxpayer and registered voter, Petitioner/Plaintiff, -againstJAMES A. WALSH and DOUGLAS A. KELLNER, Co-Chairmen of the BOARD OF ELECTIONS OF THE STATE OF NEW YORK and their successors in Office, Respondents/Defendants. ___________________________________________________________________ Index No. 5449-13 APPEARANCES: ERIC J. SNYDER, ESQ. Petitioner/Plaintiff Pro Se 598 Fifth Street Brooklyn, New York 11215 PAUL M. COLLINS, DEPUTY SPECIAL COUNSEL New York State Board of Elections 40 North Pearl Street, Suite 5 Albany, New York 12207

Decision, Order & Judgment

Hon. Richard M. Platkin, A.J.S.C. This is a combined CPLR article 78 proceeding/action that was brought on by Order to Show Cause (Lynch, J.) signed on October 2, 2013 and made returnable on October 11, 2013. In the petition/complaint annexed to the Order to Show Cause, petitioner/plaintiff Eric J. Snyder sues respondents/defendants James A. Walsh and Douglas A. Kellner as Co-Chairs of the New York State Board of Elections (SBOE) seeking the following relief: (1) a declaration and determination that the SBOEs dissemination of a ballot proposal and abstract for a proposed constitutional amendment to allow casino gambling violates article VII, 8 of the State Constitution and Election Law 4-108; and (2) an injunction restraining the SBOE from allowing the proposed amendment to be voted upon at the November 5, 2013 general election. On October 7, 2013, the Court (Platkin, J) signed a second Order to Show Cause expediting petitioner/plaintiffs application for discovery pursuant to CPLR 408. The next day, petitioner/plaintiff filed and served an amended petition/complaint that adds the SBOE and its two other commissioners, Evelyn J. Aquila and Gregory P. Peterson, to the caption and alleges a third cause of action claiming that the ballot proposal and abstract were adopted by the SBOE in violation of the Open Meetings Law (Public Officers Law art 7). On October 9, 2013, respondents/defendants moved to dismiss the petition/complaint on four grounds: (1) statute of limitations; (2) laches; (3) failure to state a cause of action; and (4) failure to join necessary parties. They further argued that the petition/complaint could not be amended without leave of court and that petitioner/plaintiff failed to acquire personal jurisdiction over the new parties named for the first time in the amended pleading. Opposition to the motions was received on October 10, 2013, and oral argument was held on October 11, 2013. This Decision, Order & Judgment follows. 2

BACKGROUND In 2012, the Governor submitted a concurrent resolution to the State Legislature to amend article I, 9 of the State Constitution to allow for casino gambling regulated by the state. The concurrent resolution was approved by the Legislature in 2012 and again in 2013. Accordingly, the proposed amendment is to be submitted to voters at the November 5, 2013 general election. On July 29, 2013, the SBOE certified that the proposed amendment will appear on the ballot in the following form: The proposed amendment to section 9 of article 1 of the Constitution would allow the Legislature to authorize up to seven casinos in New York State for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated. Should the amendment be approved? The SBOE also certified the following abstract of the amendment: The purpose of the proposed amendment to section 9 of article 1 of the Constitution is to allow the Legislature to authorize and regulate up to seven casinos in New York State for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated. Petitioner/plaintiff alleges that the language in the ballot proposal and abstract articulating the legislated purposes of the proposed amendment (Purposes Language) was included by the SBOE for the sole objective of persuading the electorate to vote in favor of the Gambling Amendment. Based upon the alleged inclusion of advocacy language, petitioner/plaintiff argues that the SBOEs dissemination of the ballot proposal and abstract violates article VII, 8 of the State Constitution, which prohibits the gift or loan of State funds in aid of any private undertaking. For a second cause of action, the petition/complaint alleges that the SBOE violated Election Law 4-108 by deviating from the ballot and abstract language supplied by the Attorney General.

Pursuant to Election Law 4-108 (3), the Attorney General shall advise in the preparation of the ballot proposition and abstract. According to the petition/complaint, the Purposes Language did not appear in the Attorney Generals proposals, and the SBOE therefore lacked the legal authority to include the language. The amended petition/complaint adds a third cause of action, alleging that the SBOE failed to comply with the Open Meetings Law. Petitioner/plaintiff claims that the SBOE did not approve the specific wording of the ballot proposal or abstract at its July 29, 2013 public meeting, and that any approval of the same that included the Purposes Language was subsequent to [the public meeting] in violation of the Open Meetings Law. ANALYSIS A. Necessary Parties Petitioner/plaintiffs failure to join the SBOE and its four commissioners when he commenced this suit and his attempt to remedy that defect through service of an amended petition/complaint give rise to a number of threshold procedural issues. As petitioner/plaintiff concedes, the new parties were not served with a notice of petition, order to show cause, summons or any form of supplemental process that would bring them within the Courts jurisdiction (see CPLR 305 [a], 403). Further, while petitioner/plaintiff invokes CPLR 1003 and 3025 (a) in arguing that the amended pleading naming new parties was served as right, CPLR 401 expressly provides that no party shall be joined [in a special proceeding] . . . , except by leave of court. And any service of process made prior to the granting of such leave is a nullity (Perez v Paramount Communications, 92 NY2d 749 [1999]). Respondents/defendants therefore contend that the case must be dismissed under CPLR 1003 due to the non-joinder of the SBOE, the agency that certified and disseminated the challenged 4

ballot and abstract language, and the full complement of SBOE commissioners, the concurrence of at least three of whom is necessary for agency action (see Election Law 3-100 [3]). Petitioner/plaintiff does not dispute that the SBOE and its commissioners are [p]ersons who ought to be parties if complete relief is to be accorded . . . or who might be inequitably affected by a judgment in the action (CPLR 1001 [a]), but he does argue that the absent parties are subject to the Courts jurisdiction and should be ordered summoned. Relatedly, he maintains that if the case were dismissed under CPLR 1003, a new suit could be recommenced against the proper parties. In reply, respondents/defendants argue that dismissal is required (and recommencement would be futile) because the claims sought to be asserted against the necessary parties are barred by the statute of limitations and/or the equitable doctrine of laches. The Court of Appeals has held that where a necessary party is subject to the jurisdiction of the court, CPLR 1001 (b) requires the party to be ordered summoned (Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 727 [2008]). This is true even if the claims sought to be asserted against the necessary party are barred by the statute of limitations or other affirmative defenses (id; see Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102 [3d Dept 2007]). However, this Court is not aware of any cases applying Windy Ridge in the context of a proceeding authorized by Election Law article 16, and its applicability therein remains unclear (see Matter of Myers v Baisley, 65 AD3d 649, 650 [2d Dept 2009], affd 13 NY3d 727). Ultimately, there is no need to delve too deeply into these procedural issues. Even accepting respondents/defendants view of CPLR 1003, the Court would be required to consider the other threshold defenses raised in their motion to dismiss to determine the proper remedy for the non-joinder. And consideration of the other defenses establishes that all of the claims in the petition/complaint and the amended petition/complaint are subject to dismissal as a matter of law. 5

Given the dispositive nature of the other legal defenses and the need for expedition in resolving challenges to the election ballot (see infra), it would be improvident under the facts and circumstances of this case to entertain the branch of respondents/defendants motion seeking dismissal without prejudice pursuant to CPLR 1003. B. Statute of Limitations Following second passage of a proposed constitutional amendment, it shall be the duty of the legislature to submit [the] proposed amendment . . . to the people for approval in such manner and at such times as the legislature shall prescribe (NY Const, art XIX, 1). Through the enactment of the Election Law, the Legislature has charged the SBOE with determining the form of the ballot proposal and preparing an abstract of the amendment. At least three months prior to the general election, the SBOE shall transmit to each county board of elections . . . a statement of the form in which [the proposed amendment] is to be submitted (Election Law 4-108 [1] [a]). The transmittal must also include an abstract of such proposed amendment . . . concisely stating the purpose and effect thereof in a clear and coherent manner using words with common and everyday meanings (id. [1] [d]). The attorney general shall advise in the preparation of such abstract and such form of submission (id. [3]). The Election Law also establishes a process for judicial review. The wording of the abstract or form of submission of any proposed amendment . . . may be contested in a proceeding instituted by any person eligible to vote on such amendment (Election Law 16-104 [2]). In such a proceeding, the ballot proposal or abstract may be challenged as misleading, ambiguous, illegal, or inconsistent with existing law (Matter of Gaughan v Mohr, 77 AD3d 1475, 1476-77 [4th Dept 2010]). But suit must be instituted within fourteen days after the last day to certify the wording of any such abstract or form of submission (id. [3]). 6

The proposed constitutional amendment to allow casino gambling is to be presented to voters at the November 5, 2013 general election. The SBOE therefore was required to approve the form of the ballot proposal and the wording of the abstract by August 5, 2013 (Election Law 4108 [1] [a], [d]). Accordingly, the last day to initiate a legal challenge was August 19, 2013 (id. 16-104 [2], [3]). As this proceeding was commenced at least 44 days after the expiration of the statutory deadline fixed by the Legislature, the causes of action alleged in the petition/complaint must be dismissed as time barred.1 In reaching this conclusion, the Court recognizes that petitioner/plaintiff does not invoke Election Law 16-104 (2) as the source of authority for this proceeding/action. Rather, he relies principally upon CPLR article 78 and argues for application of the four-month limitations period generally accorded to such proceedings (CPLR 217 [1]). However, the limitations period invoked by petitioner/plaintiff is subject to any shorter time [to sue] provided in the law authorizing the proceeding (id.), and it is well established that a litigant cannot avoid the strict deadlines of Election Law article 16 by bringing the challenge in the form of a CPLR article 78 proceeding (see Matter of Lewis v Garfinkle, 32 AD3d 548, 549 [2d Dept 2006]; see also Matter of Ciotti v Westchester County Bd. of Elections, 2013 NY Slip Op 6000 [2d Dept]; Matter of Haight v Knapp, 88 AD3d 921, 923 [2d Dept 2011]; Matter of Independence Party of Orange County v New York State Bd. of Elections, 32 AD3d 804, 805 [2d Dept 2006]). The petition/complaint is premised on the overarching contention that the Purposes Language should not appear in the ballot proposal and abstract. The first cause of action argues that the language represents improper governmental advocacy, thereby rendering the

At oral argument, respondents/defendants disclaimed any contention that the Open Meetings Law claim raised in the amended petition/complaint is untimely. 7

SBOEs dissemination of the ballot proposal and abstract an unlawful use of State funds. The second cause of action claims that inclusion of the Purposes Language is improper because it did not appear in the proposals supplied by the Attorney General. As both claims necessarily implicate a challenge to the legality of the form of submission and the wording of the abstract, they were subject to review in a proceeding brought pursuant to Election Law 16-104 (2) (see Matter of Gaughan, 77 AD3d at1476-1477; Matter of Association for a Better Long Is. v County of Suffolk, 243 AD2d 560, 561 [2d Dept 1997]; Matter of Lenihan v Blackwell, 209 AD2d 1048, 1050 [4th Dept 1994]). Moreover, the principal form of relief sought in the petition/complaint is an injunction preventing the casino amendment from appearing on the election ballot. Under the circumstances, the limitations period of Election Law 16-104 (3) is controlling. Further, [t]he simple expedient of denominating the [first cause of] action [as] one for declaratory relief and characterizing the matter as one of constitutional . . . dimension does not cure [petitioner/plaintiffs] failure to comply with Election Law 16-104 (3) (Spinney at Pond View, LLC v Town Bd. of The Town of Schodack, 99 AD3d 1088, 1089 [3d Dept 2012] [internal quotation omitted]). Where, as here, the [constitutional] rights the parties are seeking to have adjudicated in a declaratory judgment action could have been raised in a proceeding having a statutorily prescribed limitation period, then that specific limitations period will govern (Marsh v New York State & Local Employees Retirement Sys., 291 AD2d 713, 714 [3d Dept 2002]). Additionally, a litigant cannot collaterally attack an administrative determination for which the statute of limitations has expired by recasting the complaint as a challenge to the use of State funds to implement the allegedly unlawful determination. In opposing the motion to dismiss, petitioner/plaintiff further asserts that the SBOE failed to publish the certified ballot and abstract language on its Internet web site until August 23, 2013, 8

four days after the expiration of the statute of limitations. But even if the law permitted the statute of limitations to be tolled during this period of delay and the 14-day period in which to bring suit began to run on August 23, 2013, the petition/complaint would still be untimely.2 Finally, a brief review of the posture of this case relative to the election calendar confirms that the concerns underlying Election Law 16-104 (3) are implicated here. Despite the diligent efforts of all involved since the commencement of this suit just two weeks ago, this decision comes only twenty days prior to the general election. Additional time in this Court would have been required if any of the claims withstood the motion to dismiss.3 And regardless of the disposition ordered in Supreme Court, an aggrieved party has a right to appeal to the Appellate Division and potentially the Court of Appeals. In the meantime, election ballots have been certified (Election Law 4-114), military ballots were mailed to members of our armed forces (id. 10-108 [1] [a]) and the process of distributing absentee ballots is well underway (id. 8-400, 8-406). Further, the printing of paper ballots, the dissemination of abstracts and other preparations for the November 5, 2013 general election are nearing their final stages. Based on the foregoing, the Court concludes that the petition/complaint must be dismissed pursuant to Election Law 16-104 (3). C. Legal Sufficiency Respondents/defendants seek dismissal of the second cause of action alleged in the petition/complaint on the independent ground of failure to state a claim for relief (see CPLR 404

For this reason, petitioner/plaintiff emphasizes the SBOEs delay primarily in opposing the laches defense, an issue that the Court need not reach. At a minimum, the petition/complaint would have to be answered, renoticed for hearing and a decision rendered by the Court. Additional time might also have been needed to summon necessary parties, entertain motions to dismiss by the new parties and for discovery if permitted. 9
3

[a], 3211 [a] [7], 7804 [f]). Additionally, respondents/defendants argue that the Open Meetings claim alleged in the amended petition/complaint is subject to dismissal for failure to state a cause of action and as conclusively barred by documentary evidence.4 The cause of action alleging that the SBOE acted outside of its legal authority in deviating from the ballot and abstract language recommended by the Attorney General lacks merit as a matter of law. The State Legislature charged the SBOE with determining the form of the ballot proposal and the wording of the abstract, with the role of the Attorney General limited to advis[ing] in their preparation (Election Law 4-108 [1], [3]). Accordingly, the SBOE must exercise its own independent judgment and discretion, and it is under no legal duty to accept the advice of the Attorney General. Further, the Open Meetings Law claim is conclusively defeated by the documentary evidence annexed to the amended petition/complaint and otherwise fails to state a cause of action (see CPLR 3211 [a] [1], [7], 404 [a]). The transcript of the July 29, 2013 public meeting of the SBOE (Ex. B) demonstrates that the four commissioners were presented with copies of the ballot proposition and abstract and advised that language regarding the legislative purposes . . . included in the underlying statute had been added to the Attorney Generals proposals. The commissioners then unanimously voted to approve the ballot proposal and abstract as so revised. The record also includes a copy of the SBOEs certification of the ballot proposal and abstract, which was executed by respondents/defendants on the date of the public meeting (Ex. C). Moreover, review of the
4

In the motion to dismiss, respondents/defendants argued that the amended petition/complaint is not properly before the Court due to petitioner/plaintiffs failure to obtain leave of court for the amendment and to re-notice the amended pleading for hearing. However, respondents/defendants cite no authority squarely holding CPLR 3025 (a) inapplicable to this proceeding/action, and the legal sufficiency of the new Open Meetings claim was addressed in the parties written submissions and discussed at length during oral argument. Accordingly, the Court considers the new claim to be properly before it. 10

archived video webcast of the meeting (http://www.youtube.com/watch?v=MJaObF-cK24), which was made part of the present record by stipulation, shows respondents/defendants signing the certificate. Insofar as the cause of action is premised upon the contention that the Open Meetings Law prohibited the commissioners from considering and acting upon the Purposes Language in written form or obliged them to read the added language aloud for the benefit of remote viewers, the claim is without legal merit. Public Officers Law 103 (e) expressly contemplates that an agency may receive, review and act upon written proposals at a public meeting. Further, the discussion at the meeting of the legislative purposes . . . included in the underlying statute clearly represented a description of the Purposes Language and could not reasonably be understood as a verbatim recitation of its specific wording. Finally, petitioner/plaintiffs unsupported speculation that agency staff may have added the Purposes Language after the public meeting is flatly refuted by the same documentary evidence cited above.5 And even if it were not, the Legislature has not prescribed any particular process by which the SBOE must approve a ballot proposal or abstract, nothing in the Open Meetings Law prohibits an agency from sub-delegating statutory authority to its executive staff pursuant to a vote taken at a public meeting, and settled principles of administrative law hold that an agency may lawfully sub-delegate authority where, as here, it retains sufficient control over the process (Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613, 620 [1979]; Matter of Grant v N.Y. State Continuing Legal Educ. Bd., 292 AD2d 193 [1st Dept 2002]).

In addition to approving the form of the ballot proposal and wording of the abstract, the same SBOE vote authorized the agencys co-executive directors to make further revisions to the approved text prior to the statutory deadline in telephonic consultation with the commissioners. 11

CONCLUSION Based on the foregoing, the Court concludes that the claim of improper advocacy is barred by the statute of limitations,6 the claim that the SBOE exceeded its authority in deviating from the Attorney Generals proposed ballot and abstract language is both untimely and lacking in legal merit, and the Open Meetings claim is conclusively defeated by documentary evidence and otherwise fails to state a viable cause of action. Accordingly, the motion to dismiss the petition/complaint and amended petition/complaint is granted, and the motion for disclosure denied as academic It is therefore ORDERED that respondents/defendants motion to dismiss is granted in accordance with the foregoing; and it is further ORDERED that petitioner/plaintiffs motion seeking leave to engage in disclosure is denied as academic; and finally it is ORDERED and ADJUDGED that the petition/complaint and the amended petition/complaint are dismissed in all respects. This Decision, Order & Judgment is being transmitted to the counsel for respondents/defendants and all other papers are being transmitted to the Albany County Clerk for filing. The signing of this Decision, Order & Judgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

As respondents/defendants do not challenge the legal sufficiency of the improper advocacy/spending claim, the Court expresses no view on its merits. 12

Dated: Albany, New York October 16, 2013 /s/ RICHARD M. PLATKIN A.J.S.C.

Papers Considered: Order to Show Cause, dated October 2, 2013; Order to Show Cause, dated October 7, 2013, with attached exhibit A; Petition/Complaint, dated September 30, 2013, with attached exhibits A-D; Petitioner/Plaintiffs Memorandum of Law, dated September 30, 2013; Amended Petition/Complaint, dated October 7, 2013, with attached exhibits A-E; Petitioner/Plaintiffs Supplemental Memorandum of Law, dated October 7, 2013, with attached exhibit A; Notice of Motion, dated October 9, 2013; Affirmation of Paul M. Collins, Esq., dated October 9, 2013; Respondents/Defendants Memorandum of Law, dated October 9, 2013, with attached appendices A-C; Affidavit of Eric J. Snyder, Esq., sworn to October 10, 2013, with attached exhibits A-E; Petitioner/Plaintiffs Memorandum of Law, dated October 10, 2013; Affirmation of Paul M. Collins, Esq., dated October 10, 2013, with attached exhibits A-B.

13