STATE OF NEW YORK ALBANY COUNTY SUPREME COURT In the Matter of the Application of JOHN HERRICK, Chairman of the Saratoga County Republican Party Committee, DECISION, ORDER Petitioner, & JUDGMENT -against- JULIE GARCIA, MARK BLANCHFIELD, Purported candidates of the WOMEN’S EQUALITY PARTY for the public office of NEW YORK STATE SUPREME COURT JUSTICE, FOURTH JUDICIAL DISTRICT, MARTHA LEVY LUFT, Purported candidate of the WOMEN’S EQUALITY PARTY for the public office of NEW YORK STATE SUPREME COURT JUSTICE, TENTH JUDICIAL DISTRICT, and Gregory Peterson, Douglas Kellner, Andrew Spano and Peter Kosinski, Commissioners Constituting the NEW YORK STATE BOARD OF ELECTIONS, and ‘THE PURPORTED WOMEN’S EQUALITY PARTY, and its purported committees, Rachel Gold, purported acting chair, and Kathleen Joy, purported secretary, Respondents. For an Order pursuant to the Election Law, and Article 78 CPLR, Declaring Invalid the Respondent Candidates’ Purported Women’s Equality Party Nominations, and to Restrain the said Board of Elections from Placing the Name of said Candidates Upon the Official Ballots of the General Election. Index No. 4711-15APPEARANCES: LAW OFFICES OF JAMES WALSH Attomeys for Petitioner (James Walsh and Bryon McKim, of counsel) 514 State Street Schenectady, New York 12205 BRIAN L. QualL, Esq. Attomey for Respondent New York State Board of Elections New York State Board of Elections 40 North Pearl Street, Suite 5 Albany, New York 12207 LAW OFFICE OF JAMES E. LONG Attorney for Respondent-Candidates Julie Garcia and Mark Blanchfield (ames E. Long, of counsel) 668 Central Avenue Albany, New York 12206 GREENBERG TRAURIG, LLP Attomeys for the Women’s Equality Party (Steven C. Russo and Joshua Oppenheimer, of counsel) 54 State Street, 6” Floor Albany, New York 12207Hon. Richard M. Platkin, A.J.S.C. This is a special proceeding brought pursuant to Election Law articles 6 and 16 and CPLR article 78 seeking an order: (1) declaring invalid the certificates of nomination purporting to nominate the respondent-candidates for public office as candidates of the Women's Equality Party; (2) enjoining respondent New York State Board of Elections (“SBOE”) from printing and placing the name of the respondent-candidates on the November 3, 2015 general election ballot as candidates of the Women’s Equality Party; and (3) directing the SBOE to comply with the order of Supreme Court, Niagara County, in Matter of DeLabio v Allen (Index No. 156792). BACKGROUND As alleged in the Verified Petition (“petition”), petitioner John Herrick is the chair of the Saratoga County Republican Party Committee, a political committee located within the Fourth Judicial District. On or about September 14, 2015, a certificate of nomination was filed with the SBOE naming the three respondent-candidates as candidates of the Women’s Equality Party WEP”) for the public office of Justice of the Supreme Court, The certificate of nomination was signed by respondents Rachel Gold, as acting party chair and presiding officer of the nominating meeting, and Kathleen Joy, as secretary of the party and of the nominating meeting. The filing was accompanied by a copy of the “Rules of the Women’s Equality Party of the State of New York” and minutes of a September 8, 2015 party meeting. Petitioner raises two principal challenges to the certificate of nomination: (1) the invalidity of the party rules pursuant to which the respondent-candidates were nominated; and (2) the absence of an affidavit accompanying the certificate of nomination containing a swom statement by the presiding officer and secretary of the nominating committee that they are such officers and the statements made in the certificate are true.With respect to the branch of the petition alleging the invalidity of the rules under which the respondent-candidates were nominated, the record shows that several candidates for public office in New York State circulated independent nominating petitions in 2014 to run on a ballot line entitled “Women’s Equality Party”. The four statewide elected officials currently in office all were candidates on the ballot line, At the time, the Women's Equality Party was an “Independent body” under the Election Law: an “organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a [political] party” (Election Law § 1-104 [12]). After more than 50,000 votes were cast for Governor Andrew M. Cuomo on the new ballot line, the WEP became a political “party” by operation of Election Law § 1-104 (3), On July 2, 2015, rules of the Women’s Equality Party were filed with the SBOE. These rules established certain interim committees and named Barbara Fiala, Joy and Gold as the Party's interim officers. Included with the filing were certificates approving the rules and the election of interim officers signed by Governor Cuomo and Lieutenant Governor Kathleen Hochul in their capacity as statewide candidates of the WEP at the 2014 general election. An amended version of the rules was filed with the SBOE on July 14, 2015, accompanied by new certificates from the Govemor and the Lieutenant Governor. The Women’s Equality Party held its inaugural organizational meeting on July 20, 2015, The interim officers elected members of the interim state committee pursuant to the rules previously adopted. The interim state committee, in tum, elected Fiala, Joy and Gold as its chair, secretary and treasurer, respectively, and ratified the party rules filed on July 14, 2015, A Certificate summarizing these actions was filed with the SBOE on July 24, 2015.Meanwhile, in July 2015, Mary Jo Tamburlin and another individual commenced a proceeding in Supreme Court, Niagara County, seeking to invalidate the WEP rules filed on July 14, 2015 by Fiala, Joy and Gold (“Gold group”) under Election Law § 6-128 (4).! That proceeding was dismissed on August 12, 2015 for lack of jurisdiction. (On or about August 31, 2015, Tamburlin and others (collectively “Tamburlin group") filed a second set of WEP rules with the SBOE. This filing was not accompanied by a certificate of authorization from any of the statewide candidates who appeared on the WEP ballot line in 2014. A third set of rules was filed by Cecilia Tkaczyk and others (collectively “Tkaczyk group”), which were also unsupported by the certification of any of statewide candidates. This proceeding was commenced by Order to Show Cause dated September 23, 2015 (McDonough, J.), which was made returnable on September 29, 2015. The Gold group has moved for dismissal of the petition,? and respondent-candidates Julie Garcia and Mark Blanchfield (collectively “respondent-candidates”) have filed and served an answer to the Petition that denies the allegations of invalidity and raises the affirmative defense of improper service upon respondent Garcia,’ Oral argument was heard on the return, and this Decision, Order & Judgment follows. * Ina meeting held on September 8, 2015, Fiala resigned as chair of the interim state committee, and Gold was selected as acting chair. ® Given the exigencies of the electoral calendar, counsel to the Gold group recognized at oral argument that if the motion to dismiss were denied, the matter should be promptly decided on the basis of the record compiled at the hearing, with the Gold group’s motion, which fully addresses all of the allegations of the petition, effectively constituting an answer. * Respondent-candidate Martha Levy Luft did not appear in this proceeding, and petition has provided proof of proper service upon here.ANALYSIS A. Jurisdiction Over Respondent Gareia ‘The respondent-candidates claim that the petition must be dismissed because jurisdiction ‘was not obtained over Garcia. Through counsel, Garcia claims that the “Order to Show Cause was left hidden by a garage at her residence... in a place not likely to be found by [her)”. “Under Election Law § 16-116, a petitioner is required to provide notice ‘as the court or Justice shall direet"” (Matter of Anglett v Morreale, 2015 NY Slip Op 06647 [Ct of Appeals, Aug, 26, 2015}). There is no dispute here that petitioner complied with the service directives of the OTSC by “enclosing [the pleadings] in a securely sealed and duly prepaid wrapper, addressed ‘0 [Garcia] atthe address set forth in [her] nominating certificate{] and/or [her] voter registration], and by depositing the same . . on or before the 23" day of September 2014” with FedEx for overnight delivery. Further, there is no dispute that FedEx delivered the pleadings to Garcia’s residence on September 24, 2015 The prescribed method of service was reasonably calculated to effectuate actual delivery of the pleadings to Garcia within the applicable statute of limitations period (see Anglett, supra, citing Matter of King v Cohen, 203 NY 435 [1944]). Therefore, “proof of actual receipt of the ‘mailing is not required” for service upon her to be deemed valid (Matter of Contessa v MeCarthy, 40 NY2d 890 [1976]; see Matter of Hervey v Greene County Bd. of Elections, 166 AD2d 743 [3d Dept 1990]). Given the undisputed proof that petitioner complied with the service directives of the OTSC (and the pleadings actually were delivered to Garcia's residence within the limitations period), the Court finds this affirmative defense to be lacking in merit,B. Validity of the Gold Group’s Rules Petitioner alleges that the party rules and organizational documents pursuant to which the respondent-candidates were nominated are invalid. Petitioner refers to a Decision & Order issued on September 14, 2015 by Supreme Court (Frank Caruso, J.) in Niagara County in Mater of DeLabio v Allen (Index No. 156792) (“DeLabio” ot “Niagara Decision”). The Niagara Decision was issued in response to a Verified Petition requesting a judicial determination of, among other things, the “validity of the rules of the various groups claiming to be the interim committees of the Women’s Equality Party” (id., p 1). In granting the petition, Supreme Court held that none of the three groups claiming to be the rightful organizers of the party “can be declared to be vested with any rights found under the election law with respect to the nomination of candidates” (id., p 6). This determination was based on Election Law § 6-128, which governs nominations made by a new party in its first year. Subdivision (4) of this statute reads as follows: If there is any question or conflict relating to the rules or the rule-making body, rules which a majority of the candidates of such party who were nominated by petition for offices voted for by all the voters of the state at the general election at which the independent body became a party certify were duly adopted by a properly authorized body shall be deemed to be the rules. The certificate of such candidates describing the rule-making body shall be controlling. Based upon the failure of any of the three groups to obtain certification by a majority of the statewide elected officials who ran on the WEP ballot line in 2014, the court declared a nomination made by the Tamburlin group invalid and further held that, “as a conflict exists requiring a majority of candidates for the WEP from 2014 to determine what set of rules are Valid, and no such majority exists, . .. all groups are enjoined from issuing any certification of‘nomination in the name of the Women’s Equality Party unless and until a proper majority of said candidates certifies a set of rules” (id.).* On appeal, the Appellate Division, Fourth Department, upheld Supreme Court's determination that the certificate of nomination issued by the Tamburlin group was invalid. The appellate court determined, however, that Supreme Court should not have passed on the validity of the rules of the Gold and Tkaezyk groups, reasoning that the issue “would be decided more appropriately in the context of a challenge to a certificate of nomination filed . . . pursuant to their rules” (2015 NY Slip Op 06954, p 3 [September 24, 2015]). In deciding the invalidity of the Tamburlin rules “without reaching the issue whether [the Gold group’s] rules are valid”, the Fourth Department held as follows: Respondents contend, inter alia, that there is no “question or conflict relating to therules or the rule-making body” for purposes of Election Law § 6-128 (4). Even assuming, arguendo, that there is a “question ‘or conflict” for purposes of section 6-128 (4), there is no dispute that the Tamburlin group's rules, pursuant to which [the subject] certificate of nomination was filed, may not be “deemed to be the rules” of the WEP for purposes of the statute, because no statewide candidate in the 2014 general election has certified those rules (id., p 23), As a result of the Fourth Department's binding precedent in DeLabio,' this Court must conclude that presently there is no “question o conflict relating to the rules or the rule-making “Ina related proceeding commenced in this Court on September 8, 2015, the Gold group sought & ruling declaring that it was the only group authorized to act on behalf of the Women’s Equality Party and an order directing the SBOE to act accordingly. In a Decision & Order dated September 17, 2015, the Court dismissed the petition as barred by the doctrine of collateral estoppel based upon the Niagara Decision (Matter of Women's Equality Party v Tamburlin, Albany County Index No. 4454-15). * As the Third Department has not yet spoken to the issues raised by the cause of action, this Court is bound by the precedent of the other Departments of the Appellate Division (see generally Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984)). The Tamburlin group is further bound by DeLabio under the doctrines of res judicata and collateral estoppel, 6body” of the Women’s Equality Party that implicates the dispute resolution process of Election Law -128 (4) (Matter of Van Savage v Fiala, Sup Ct, Albany County, Index No. 4596-15 [September 29, 2015}; see also Matter of Smith v Thane, Sup Ct, Montgomery County, Index No. 2015-0730, Joseph M. Sise, J. [September 28, 2015]). When DeLabio was commenced on September 5, 2015, there were three groups claiming to be the rightful organizers of the Women’s Equality Party, cach with its own competing set of paity rules. But the Fourth Department's ruling leaves the rules of the Tamburlin group without force or effect due to the absence of any statewide candidate support. And the rules filed by the Tkaczyk group must be considered invalid for exactly the same reason.* The Court also rejects the somewhat circular contention that petitioner, as the chair of a party committee, has raised a “question or conflict” regarding the Gold group's rules under Election Law § 6-128 (4). An objection to the rules of a new party based upon the absence of certification by a majority of the statewide candidates cannot itself serve to create a “question or conflict relating to the rules” of the party as to trigger the very certification requirement that allegedly was violated, In any event, even if the adoption of competing rules by persons apparently unaffiliated with the “independent body [that] bec{ame] a party at a general election by qualifying under the Tequitements set by law” could be said to create a “question or conflict” within the meaning of “ The validity of the interim rules of the Tkaczyk group cannot be tested in a proceeding brought pursuant to Election Law § 16-102 because the group has not made any nominations — a factual development that may not have been part of the record in DeZabio. (The deadline for nominations had not yet passed when the trial court issued its decision). Given the absence of an alternative remedy for testing the validity of interim rules of an organization that has not made nominations, the Court considers this issue to be properly before it, at least for the limited purpose of determining whether there remains any legitimate question or conflict relating to the validity of the Gold group’s rules. 7Election Law § 6-128 (4), the Court is unconvinced that the absence of certification by a majority of the statewide candidates renders invalid the rules of the Gold group. There is nothing in the Election Law that makes candidate certification a condition precedent to the validity of interim party rules. An “independent body” becomes a “party” at a general election by qualifying under the requirements established by law (Election Law § 1-104 (3], [12)), thereby entitling the organizers to adopt rules and nominate candidates (Election Law §§ 2-108, 6-128 [1]. Ifa question or conflict arises within the party, Election Law § 6-128 (4) makes the certification of a ‘majority of the statewide candidates controlling, but the statute does not expressly foreclose ‘competing claims from being determined by less conclusive means, The rules adopted by the Gold group are supported by two of the four statewide ‘candidates who ran on the WEP ballot line in 2014, the only identifiable individuals affiliated with the new party (see Matter of Independence Party of N.Y. v Board of Elections in City of N.Y.,213 AD2d 209 [1st Dept 1995], appeal dismissed 85 NY2d 867 [1995]}.” The other two statewide candidates have chosen not to certify any competing rules or object to the rules adopted by the Gold group.’ Further, the Gold group was the first to adopt rules and organize the Women’s Equality Party, with competing rules coming only after an unsuccessful legal challenge by the Tamburlin group (see Matter of Tamburlin v Peterson, Sup Ct, Niagara County, Index No. 156326 [August 12, 2015]). " The Gold group's support includes that of the Govemnor, whose vote total on the WEP ballot line in November 2014 had the effect of establishing the new party (sce Election Law § 1-104 [3], (12). * While these individuals legitimately may choose not to act with respect to the organization of the new party, the Court is hesitant to adopt a construction of Election Law § 6-128 that would, in effect, allow them a “pocket veto” of the substantial rights conferred on a new political party, the creation of which was a direct and anticipated consequence of the WEP independent nomination effort in 2014, 8Giving Election Law § 6-128 (4) the reasonable construction intended by the Legislature, and considering all the relevant facts and circumstances, including the binding precedent of the Appellate Division, Fourth Department, foreclosing the validity of party rules that lack any statewide candidate support, petitioner has failed to establish the invalidity of the rules of the ‘Women’s Equality Party adopted by the Gold group. C. Affidavit Requirement of Election Law § 6-128 (1) (g) Petitioner additionally alleges that the certificate of nomination does not comply with Election Law § 6-128 (1) (g), which requires such certificate to include “[aJn affidavit containing a statement by the presiding officer and secretary of the committee that they are such officers and the statements in the certificate are true”. Review of the certified records produced by the SBOE confirms that respondent-candidates’ certificate of nomination did not include an affidavit, In opposing this claim, the Gold group and respondent-candidates argue that the affidavit requirement is satisfied because the certificate of nomination allegedly contain[s] all of the requirements, including statements that the individuals who executed the document before a notary public were the presiding officer and secretary of the meeting at which the Acting Chair and Secretary of the Gold WEP were directed to execute the certificate of nomination, as well as a statement that the document which included the WEP rules which were attached and incorporated into the certificate was ‘accurate and complete” (Affirmation of Steven C. Russo, dated September 24, 2015, | 49).” ‘Thus, respondents contend, “[t]he statements included in the certificate are substantially equivalent to the language of” the statute (id. $50). ® The affirmation of Joshua L. Oppenheimer dated September 28, 2015 expressly incorporates ‘and attaches as an exhibit the Russo affirmation, which was submitted to the Court in the related Van Savage case.Election Law § 6-128 prescribes the process by which a new party shall nominate candidates in its first year. A certificate of nomination issued by the new party “shall contain” seven elements, including the above-quoted affidavit requirement (Election Law § 6-128 [1] [a g]). “The certificate of nomination, with all required information contained therein, shall be filed” with the board of elections (id, (2]). “After examination, no [board of elections] shall receive for filing any such certificate of nomination unless the above requirements have been fulfilled” (id. (3)). ‘The requirement thet a certificate of nomination include an affidavit from the presiding officer and secretary is a legislatively prescribed element of a certificate of nomination. Accordingly, a defect in, or the omission of, such an affidavit is a fatal, “substantive departure from the mandates of the statute and not a mere error in form” that can be excused by substantial compliance (Matter of Alamo v Black, 51 NY24 716, 717 [1980]; see Matter of Griffin v Torres, 131 AD3d 631 [2d Dept 2015] [construing similar affidavit requirement for certificates of substitution]). Settled law holds that “‘there must be strict compliance with statutory commands as to matters of prescribed content” (Matter of Landry v Mansion, 65 AD3d 803, 805 [3d Dept 2009), quoting Matter of Hutson v Bass, $4 NY2d 772, 774 [1981]; compare Hannigan Elec. Contrs. v Awerbuch, 114 AD2d 740 [3d Dept 1985] [excusing “imprecise adherence” to verification requirements under statute that “mandates a liberal construction”]). Where “an affidavit is... required it may be sworn to before any officer authorized by law to take the acknowledgment of deeds in this state” (General Construction Law § 12), including a notary public (Executive Law § 135). While no specific form of oath or affirmation is required, it must be “in a form calculated to awaken the conscience and impress the mind of 10the person taking it in accordance with his (or her] religious or ethical beliefs” (CPLR 2309 [b]; see General Construction Law § 36 [“attesting the truth of that which is stated”), The Court concludes that the certificate nominating the respondent-candidates does not comply with Election Law § 6-128 (1) (g). The certificate was acknowledged before a notary Public, but there is no jurat or representation that Gold and Joy swore to the truth of the statements made therein (see Furtow'y Jenstro Emters., Inc, 75 AD3d 494, 495 [2d Dept 2010] Gurat and statement that affiant was “duly swom"]; Sparaco v Sparaco, 309 AD2d 1029, 1030 [3d Dept 2003] [notarized statement reciting that affiant had “befen] swom"]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1st Dept 1994] [jurat and statement that affidavit was “true, factual and voluntarily given”; compare People v Zimmer, 112 AD2A 500 [3d Dept 1985] (where substantial compliance was sufficient, unsigned jurat could be cured by subsequent testimony). Asa result, the notarized certificate of nomination establishes only that Gold and Joy appeared before a notary public and acknowledged execution of the document (see People v Abrams, 73 AD3d 1225, 1228 [3d Dept 2010] (“Although the statement bore a notary’s stamp and signature, there was no jurat or other indicator that the [signer] had been swom before signing it."], affd 17 NY3d 760 [2011]; see also Matter of Hazell v Board of Elections of the State of N.¥.,224 AD24 806, 807 [3d Dept 1996] [swearing is “an element which is not required for a notary public to correctly and properly take an acknowledgment”). Simply put, an acknowledged statement is not the legal equivalent of a swom statement. In the absence of a swom statement from Gold and Joy “that they are [WEP] officers and the statements in the certificate [of nomination] are true”, the certificate is invalid under Election nLaw § 6-128, and the SBOE was not authorized to receive the certificate for filing (i. [3]). CONCLUSION Accordingly,” it is ORDERED that the petition is granted in part and denied in part, in accordance with the foregoing; and itis further ORDERED that the Gold group’s motion to dismiss the petition is denied in part and granted in part, in accordance with the foregoing; and it is ADJUDGED that the certificate of nomination purporting to nominate the respondent- candidates for the office of Justice of the Supreme Court as candidates of the Women’s Equality Party is declared invalid and of no legal force or effect; and it is further ORDERED that the New York State Board of Elections is enjoined from printing and Placing the name of the three respondent-candidates on the November 3, 2015 general election ballot as candidates for the office of Justice of the Supreme Court on the Women’s Equality Party line, This Decision, Order & Judgment is being transmitted to the counsel for petitioner, 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 is not relieved from the applicable provisions ofthat section respecting filing, entry and notice of entry '° The Court has considered petitioner's two remaining causes of action and respondents* remaining affirmative defenses, but finds them to be lacking factual support or otherwise without merit. 12Dated: Albany, New York September 30, 2015 RICHARD M. PLATKIN AIS.C. Papers Considered: Order to Show Cause, dated September 23, 2015; Verified Petition, dated September 23, 2015; Emergency Affirmation of James Walsh, Esq., dated September 23, 2015, with attachment: Attomey’s Affirmation of Service (service on Gold group and respondent-candidates), dated September 28, 2015; Notice of Motion to Dismiss (Gold group), dated September 28, 2015; Affirmation of Joshua L. Oppenheimer, Esq., dated September 28, 2015, with attached Exhibits A-B; Verified Answer (Garcia and Blanchfield), dated September 29, 2015, with attachments; Certified Copies of Documents from Respondent New York State Board of Elections, 1B