Summary
The New York Appellate Division, Fourth Department affirmed an order directing the Niagara County Board of Elections to remove Marcus Morreale from the ballot. The court held that a committee to fill vacancies could not designate as a substitute candidate the person whose own declination created the vacancy. It also rejected challenges concerning verification and timeliness of service under Election Law article 16.
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Practice areas
Questions Presented
- Whether verification of the Election Law article 16 petition by petitioner's attorney constituted a jurisdictional defect.
- Whether the petitioner timely served the commencement papers when the papers were affixed to respondent's residence door before the limitations deadline and mailed on the deadline.
- Whether a committee to fill vacancies may designate as a substitute candidate the person whose own declination created the vacancy.
- Whether the order directing the Board of Elections to strike Morreale's name from the ballot should be affirmed.
Holdings
- Any defect in the attorney's verification was not a jurisdictional defect warranting dismissal, particularly because respondent failed to demonstrate substantial prejudice.
- Service was timely because the petitioner strictly complied with the court's service directions and actual delivery occurred when the commencement papers were affixed to respondent's residence door before the limitations deadline.
- A committee to fill vacancies may not designate as the substitute candidate the person whose own declination created the vacancy for that position.
Key quotations
“In a proceeding under article 16 of the Election Law, the petitioner must satisfy two distinct service requirements.” (811)
“The Election Law plainly contemplates that the candidate designated to fill a vacancy shall be a person other than the person originally named” (812)
Factual background
A designating petition was filed designating Marcus Morreale as a Democratic candidate for Niagara County Legislator, Eighth District. Morreale declined the designation, and a committee to fill vacancies subsequently designated him as the substitute candidate for the vacancy created by his own declination. The petitioner objected to the substitution, and the commencement papers were nailed to Morreale's residence door on July 22, 2015 and mailed by Express Mail on July 23, 2015, the last day to commence the proceeding.
Procedural history
A designating petition named Marcus Morreale as a Democratic candidate for Niagara County Legislator, but Morreale initially declined the designation. A committee to fill vacancies later designated him as the substitute candidate for the vacancy created by his declination. After the Board of Elections rejected Angletti's objection, Angletti commenced a proceeding under Election Law § 16-102. Supreme Court, Niagara County, granted the petition and invalidated the substitution; the Appellate Division affirmed.