Rudmann v. Scaringe

¶1Mahoney, P.J., and Weiss, J. (concurring in part and dissenting in part). While we concur with the majority’s holding that Special Term properly vacated and annulled the certificate of designation, we respectfully dissent from that portion of their statement which denies the right *915of enrolled Conservative Party members to vote on primary day for the positions of Delegate and Alternate Delegate to the Third Judicial District convention. The factual circumstances herein should compel the extention of the rationale of Matter of Brown v Ulster County Bd. of Elections (48 NY2d 614) to this case. For an untold number of years, the Albany County Conservative Party has selected its delegates to the judicial convention by utilizing the designations of its executive committee. Historically, neither the Albany County Board of Elections nor the New York State Board of Elections rejected or questioned this process. While the majority adheres to strict compliance with section 6-118 of the Election Law, equal consideration must be given section 16-100,by which the right of the executive committee, as well as the rank and file members of the Albany County Conservative Party, to vote for candidates of their choice should be preserved. Further, the majority’s view that those party members who would have the right to vote for delegates to their party’s judicial convention, pursuant to the determination below, are not prejudiced because they had the opportunity to designate delegates by petitions and failed to do so, overlooks the fact that these party enrollees were relying on the long-standing practice of their party committee to nominate by certificate rather than petition. Section 16-100 of the Election Law, which confers on the Supreme Court the power to summarily determine all questions of law and fact pertaining to election matters and, further, empowers that court to construe the Election Law liberally to achieve that end, embodies the legislative intent that openness and fairness should govern intraparty affairs. Here, primary day is election day and in the absence of the opportunity to vote by the large majority of enrolled Conservative Party members, the designees for convention delegate will be elected without opposition. Accordingly, we hold that Special Term was vested with the requisite power to fashion a remedy, given the factual pattern herein, that affords the Conservative Party members an opportunity to choose both their candidates for public office and their delegates to this judicial convention (Election Law, § 16-100; Matter of Brown v Ulster County Bd. of Elections, supra).The judgment should be affirmed in its entirety.