| Matter of LeBron v Clyne |
| 2009 NY Slip Op 06278 [65 AD3d 801] |
| August 20, 2009 |
| Appellate Division, Third Department |
| In the Matter of Nathan LeBron, Respondent, v Matthew J. Clyneet al., as Commissioners of the Albany County Board of Elections, Respondents, and Gerald D.Jennings et al., Appellants. |
—[*1] Thomas J. Marcelle, Albany, for Betty Barnette and another, appellants. Cooper, Erving & Savage, L.L.P., Albany (Phillip G. Steck of counsel), for Leif C. Engstromand another, appellants. Feeney, Centi and Mackey, Albany (L. Michael Mackey of counsel), for Albany CountyIndependence Committee, appellant. John Ciampoli, Albany, for Nathan LeBron, respondent.
Per Curiam. Appeal from a judgment of the Supreme Court (Connolly, J.), entered August 7,2009 in Albany County, which granted petitioner's application, in a proceeding pursuant toElection Law § 16-102, to declare invalid the designating petitions naming respondentsGerald D. Jennings, Betty Barnette, Leif C. Engstrom and Carolyn McLaughlin as IndependenceParty candidates for certain public offices in the City of Albany at the September 15, 2009primary election.[*2]
Respondents Gerald D. Jennings, Betty Barnette, Leif C.Engstrom and Carolyn McLaughlin (hereinafter collectively referred to as respondents) areDemocratic Party candidates seeking election to the respective public offices of Mayor,Treasurer, Chief Auditor and Common Council President in the City of Albany. Their namesappeared on joint designating petitions purporting to nominate them as Independence Partycandidates for the aforesaid city offices at the September 15, 2009 primary election. A number ofthese petitions were not circulated by members of the Independence Party, but rather by notariespublic or commissioners of deeds as authorized by Election Law § 6-132 (3). Petitioner, acitizen objector and aggrieved candidate for the office of Mayor, filed objections to thedesignating petitions with the Albany County Board of Elections. He subsequently commencedthis proceeding pursuant to Election Law § 16-102 seeking to invalidate the designatingpetitions on the basis, among others, that the signatures of the persons signing the petitions in thepresence of a notary public or commissioner of deeds were not obtained in accordance with therequirements of Election Law § 6-132 (3). Respondent Ellen Donovan, an IndependenceParty member and signatory to one of the designating petitions, and respondent Albany CountyIndependence Committee (hereinafter collectively referred to as intervenors), intervened in thisproceeding. Following joinder of issue, Supreme Court invalidated the subject petitions fornoncompliance with the requirements of Election Law § 6-132 (3) and enjoined theAlbany County Board of Elections from placing respondents' names on the ballot asIndependence Party candidates at the primary election. Respondents and intervenors now appeal.
As stipulated by the parties, the signatories were not sworn, questioned about the statementscontained in the petition or asked to affirm the truth of the information set forth therein. Nor didthe notaries public and commissioners of deeds make any effort to obtain from the signatorieseither an affirmation or acknowledgment as to the truthfulness of their statements (seeElection Law § 6-132 [3]; Matterof Liebler v Friedman, 54 AD3d 697, 697-698 [2008]; Matter of Imre v Johnson, 54 AD3d427, 428 [2008]). Thus, Supreme Court properly invalidated the petitions.
Nor do we find that Election Law § 6-132 (3) unconstitutionally burdens intervenors'First Amendment rights of political expression and free association.[FN*]The oath or affirmation requirement at issue here is applicable only where a nonparty member,who is either a notary public or a commissioner of deeds, circulates a designating petition(see Election Law § 6-132 [3]). Rather than burdening the process for candidatesseeking the nomination of a political party in which they are not enrolled, the provisionpermitting circulation of petitions by notaries public or commissioners of deeds who are notparty members is an additional avenue which expands access to the ballot, while safeguardingthe integrity of the election process. Inasmuch as Election Law § 6-132 (3) is narrowlytailored to achieve this goal, we find no First Amendment violation.
Spain, J.P., Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: The Attorney General's officewas notified of the constitutional challenge, as required by Executive Law § 71 and CPLR1012 (b), and has declined to intervene.