To be Argued by:

CARMEN BEAUCHAMP CIPARICK

(Time Requested: 10 Minutes)
Case No. 521767

New York Supreme Court

Appellate Division Third Department

MIKE GRASSO, CITIZEN OBJECTOR AGGRIEVED

Petitioner,
against
LARRY CLEVELAND, Candidate, CLAUDIA K. BRAYMER, Candidate,
JENNIFER S. SWITZER, Candidate, RICHARD F. GARRANO, JR., Candidate,
MARY BETH CASE and BETH McLAUGHLIN, Commissioners Constituting the
Warren County Board of Elections, GREGORY PETERSON, DOUGLAS
KELLNER, ANDREW SPANO and PETER KOSINSKI, Commissioners
Constituting the New York State Board of Elections
Respondent,
-andTHE WOMENS EQUALITY PARTY, RACHEL GOLD and KATHLEEN JOY,
Respondent-Appellant.

OPENING BRIEF FOR RESPONDENT-APPELLANT

GREENBERG TRAURIG, LLP

Steven C. Russo
Joshua L. Oppenheimer
Carmen Beauchamp Ciparick
Meghan Newcomer
200 Park Avenue
New York, New York 10166
Telephone: (212) 801-9200
Facsimile: (212) 801-6400
Attorneys for Respondent-Appellant

Warren County Clerk Index No. 62008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION, THIRD DEPARTMENT
------------------------------------------ X
:
In the Matter of the Application of
:
:
MIKE GRASSO, Chairman of the Warren County :
Republican Party Committee, and Mike Grasso, Objectors :
Aggrieved
:
:
Petitioner,
:
:
-against:
:
LARRY CLEVELAND, Purported candidate of the :
WOMENS EQUALITY PARTY for the public office of :
WARREN COUNTY SHERIFF
:
:
and
:
:
CLAUDIA K. BRAYMER, Purported candidate of the :
WOMENS EQUALITY PARTY for the public office of :
the WARREN COUNTY SUPERVISOR WARD 3
:
:
and
:
:
JENNIFER S. SWITZER, Purported candidate of the :
WOMENS EQUALITY PARTY for the public office of :
TOWN COUNCIL, TOWN OF QUEENSBURY WARD 4 :
:
and
:
:
RICHARD F. GARRANO, JR., Purported candidate of the :
WOMENS EQUALITY PARTY for the public office of :
TOWN COUNCIL, TOWN OF QUEENSBURY WARD 3 :
:
and
:
:
Mary
Beth
Casey
and
Beth
McLaughlin, :
COMMISSIONERS CONSTITUTING THE WARREN :
COUNTY BOARD OF ELECTIONS
:
:
and
:
:
Gregory Peterson, Douglas Kellner, Andrew Spano and :

Index No.: 521767

STATEMENT
PURSUANT TO CPLR
5531

Peter Kosinski, Commissioners Constituting the NEW

YORK STATE BOARD OF ELECTIONS,
and
The PURPORTED WOMENS EQUALITY PARTY, and
its purported committees, Rachel Gold, purported acting
chair, and Kathleen Joy, purported secretary
For an Order Pursuant to the Election Law, and Article 78
CPLR Declaring Invalid the Respondent Candidates
Purported Womens 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

:
:
:
:
:
:
:
:
:
:
:
:
:
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:

------------------------------------------ X

STATEMENT PURSUANT TO CPLR 5531

1.

The Warren County index number for this case is 62008.

2.

The full names of the original parties are set forth above. There have been
no changes.

3.

The underlying action was commenced in the Supreme Court of the State of
New York for Warren County.

4.

The underlying action was commenced by Mike Grasso, Citizen Objector

Aggrieved on September 23, 2015. The Order to Show Cause and
accompanying Petition were served on September 23, 2015. The Womens
Equality Party, Rachel Gold, and Kathleen Joy (collectively, the Gold
WEP) timely filed their answer on September 26, 2015.

5.

This is an action through which Petitioner seeks to invalidate the nomination

of Respondent-Candidates Larry Cleveland, Claudia K. Braymer, Jennifer S.
Switzer, and Richard F. Garrano, Jr. and to enjoin Respondent Board of
Elections from placing the Womens Equality Party line on the ballot

6.

This appeal is from a Decision and Order of the Hon. Justice Krogmann, of
the Supreme Court for Warren County, dated September 29, 2015, and

served with Notice of Entry on September 29, 2015 (the Order). The
Order invalidated the Womens Equality Party nominations of RespondentCandidates and enjoined Respondent Board of Elections from placing their
names on the ballot.
7.

This appeal is being perfected with the use of a Reproduced Full Record.

TABLE OF CONTENTS
QUESTIONS PRESENTED .................................................................................... 1
NATURE OF THE CASE ........................................................................................ 1
STATEMENT OF FACTS ....................................................................................... 2
SUMMARY OF ARGUMENT .............................................................................. 10
ARGUMENT .......................................................................................................... 13
I.

THE COURT IGNORED THE FOURTH DEPARTMENTS

RULING IN DELABIO IN FINDING THAT THE RULES
SUBMITTED BY THE UNAUTHORIZED WEP GROUPS
CREATED A CONFLICT UNDER SECTION 6-128(4) OF
THE ELECTION LAW ..................................................................... 13

II.

THE COURT ERRED IN IGNORING THE GOLD WEPS

PARTY RAIDING ARGUMENT ..................................................... 21

III.

EVEN ASSUMING THAT THE COMPETING WEP RULES

ARE DEEMED TO CREATE A CONFLICT OR QUESTION
UNDER ELECTION LAW 6-128(4), SUCH SECTION DOES
NOT CONTEMPLATE OR SANCTION THE HOLDING OF
THE TRIAL COURT PREVENTING THE ORGANIZATION
OF A VALID PARTY AS DEFINED IN THE ELECTION ......... 23

CONCLUSION....................................................................................................... 27

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TABLE OF AUTHORITIES
Federal Cases
Rosario v. Rockefeller,
410 U.S. 752 [1973] .......................................................................................... 23
State Cases
City of Buffalo v. Lawley,
6 A.D.2d 66 [4th Dept 1958]............................................................................ 19
Dadey v. Czarny,
slip op. 1273-2015 [Sup. Ct., Onondaga Cnty., Sept. 28, 2015] ....................... 12
DeLabio v. Allen,
2015 NY Slip Op 06954 [4th Dept 2015] ................................................. passim
In Re Independence Party of New York v. Board of Elections in the
City of New York,
213 A.D.2d 209 [1st Dept 1995] ...................................................................... 18
Smith v. Thane,
slip op. 2015-0730 [N.Y. Sup. Ct., Montgomery Cnty., Sept. 28,
2015] .......................................................................................................... passim
In Re Steward v. Fossella,
174 Misc.2d 620 [N.Y. Sup. Ct., Kings Cnty 1997] ................................... 16, 17
Tamburlin v. Peterson,
No. 156326 [N.Y. Sup. Ct., Niagara Cnty., Aug. 17, 2015]................................ 6
Van Savage v. Fiala,
slip op. 4596-15 [N.Y. Sup. Ct., Albany Cnty., Sept. 29, 2015]
.................................................................................................................... passim
In Re: Walsh v. Abramowitz,
100 Misc.2d 940 [N.Y. Sup. Ct., Suffolk Cnty. 2009], affd 78
A.D.3d 852 (2d Dept 2010) .............................................................................. 23
State Statutes
N.Y. Elec. Law 1-104(3) ........................................................................... 2, 12, 24
N.Y. Elec. Law 2-108 ............................................................................................ 2
N.Y. Elec. Law 2-114 ............................................................................................ 3

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N.Y. Elec. Law 6-120 .......................................................................................... 21

N.Y. Elec. Law 6-120(1) ..................................................................................... 21
N.Y. Elec. Law 6-120(3) ..................................................................................... 21
N.Y. Elec. Law 6-128 .......................................................................................... 18
N.Y. Elec. Law 6-128(1) ....................................................................................... 3
N.Y. Elec. Law 6-128(4) ............................................................................. passim

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QUESTIONS PRESENTED
1.

Did the trial court err in failing to treat purported new party rules as a nullity

in accordance with the Fourth Departments recent holding in DeLabio v. Allen

(2015 NY Slip Op 06954 [4th Dept 2015]) and in holding that the Gold WEP was
not the properly constituted and authorized WEP, even though it was the only
entity that filed rules that had been authorized by statewide candidates and the
other purported WEP rules had not been authorized by any statewide WEP
candidate and thus should not have been deemed to create a question or conflict
as contemplated by Section 6-128(4) of the Election Law? The Supreme Court
ignored the DeLabio reasoning and invalidated the nominations of the Gold WEP
because it found that a question or conflict existed due to the failure of the
Gold WEP to have its rules authorized by a majority of the statewide candidates.
NATURE OF THE CASE
This appeal challenges the Order of Justice Krogmann, entered September
29, 2015 in the Supreme Court of the State of New York, Warren County,
invalidating the nomination of candidate-Respondents Larry Cleveland, Claudia K.
Braymer, Jennifer S. Switzer, and Richard F. Garrano, Jr. (the Warren WEP
candidates). On September 23, 2015, Petitioner-Respondent filed an Order to
Show Cause and Verified Petition seeking to invalidate the nomination of the
Warren WEP candidates. The Gold WEP respondents timely filed an Opposition

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to the Verified Petition on September 25, 2015, asking the trial court to deny the
relief requested. Justice Krogmann of the Supreme Court, Warren County heard
argument on both the request for an injunction and the opposition to the injunction
on September 28, 2015. On September 29, 2015, Justice Krogmann entered an
order invalidating the nomination of the Warren WEP candidates. The Gold WEP
now appeals that order.
STATEMENT OF FACTS
The 2014 General Election Enabling the Creation of WEP
New York State Election Law 1-104(3) defines the term party as any
political organization which at the last preceding election for governor polled at
least fifty thousand votes for its candidate for governor. At the November 2014
General Election, four candidates for statewide office, Andrew Cuomo, Kathleen
Hochul, Eric Schneiderman and Thomas DiNapoli, circulated petitions to run as
candidates for office on a ballot line for the Womens Equality Party, and
ultimately ran as WEP candidates. (R. 170 22.)
The WEP attained party status, as that term is defined in Article 1 of the
New York State Election Law, at that election, when its candidate for Governor,
Andrew Cuomo, received 53,802 votes. (R. 170 22; R. 10.) New York State
Election Law 2-108 provides that a state committee . . . of a new political party,
which meet[s] prior to the first primary for which members of such party shall

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have become enrolled, shall be formed as provided by the rules of such party.
Rules for political party committees will not be considered to be in effect unless
first filed with the relevant board or boards of elections. (R. 170 23.) New York
State Election Law 2-114, for example, states that
[w]ithin ten days after the adoption of any rule or amendment thereto
a certified copy thereof shall be filed by the state committee in the
office of the state board of elections, and by the county committee in
the office of the state board of elections, and in the office of the board
of elections of the county. . . . No rule or amendment thereof shall be
effective until the filing thereof in the office of the state board of
elections. Such rules shall continue to be the rules for the committee
until they are amended or new rules adopted.
Similarly, New York State Election Law 6-128(1) states [w]hen an
independent body becomes a party at a general election by qualifying under the
requirements set by law, nominations shall, prior to and including the first general
election thereafter, be made as provided by the rules of such party. The same
section further provides that such certificates of nomination must include, among
other things, [a] certified copy of the party rules describing the rule-making body
and nomination process.

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The WEP Files Rules and Becomes a Duly Organized Party

On July 2, 2015, the WEP duly filed a copy of the rules for the WEP (the
Initial WEP Rules) with the New York State Board of Elections. (R. 122-129.)
The Initial WEP Rules, among other things, named Barbara Fiala and Respondents
Rachel Gold and Kathleen Joy as the initial officers of the Interim State
Committee. (R. 128). The rules also established a process by which the WEP
organizational meeting could occur, as well as the process by which the WEP
could nominate candidates for the 2015 elections. (R. 122-129.) An amended
version of these rules was filed with the NYSBOE on July 14, 2015 that, by its
terms, superseded the Initial WEP Rules (the Amended WEP Rules). (R. 63-72;
R. 196-200.)
The WEP held its inaugural organizational meeting on July 20, 2015. (R.
203; R. 177 38.) At the organizational meeting, among other things: (i) the
Interim Officers of the WEP unanimously elected members of the Interim State
Committee pursuant to Article II, section 1 of the Amended WEP Rules; (ii) a
majority of members of the Interim State Committee duly elected Barbara Fiala,
Rachel Gold, and Kathleen Joy to respectively serve as Chair, Secretary, and
Treasurer of the WEP Interim State Committee and the Executive Committee
thereof, pursuant to Article II, section 2 of the WEP Rules; and (iii) a majority of
the Interim State Committee voted to ratify the version of the amended WEP Rules

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filed with the NYSBOE on July 14, 2015 as the WEP Rules. (R. 167 12; R. 196200.)
Prior Challenge to WEPs Formation
On July 13, 2015 and July 23, 2015, a group of registered voters (the
Tamburlin Objectors) commenced a legal action in Supreme Court, Niagara
County which sought to invalidate the formation of the WEP and the election of
Fiala, Joy, and Gold as Chair, Secretary, and Treasurer of that partys committees.
(R. 186) The grounds for the challenge were primarily based on the contention
that WEP was not properly formed because its formation did not comply with
Section 6-128(4) of the Election Law, which provides that when there is a question
or conflict as to party rules, the State Board shall look to the rules certified by a
majority of the candidates of such party who were nominated by petition for
offices voted for by all the voters of the state, and that [t]he certificate of such
candidates describing the rule-making body shall be controlling. (Election Law
6-128(4); R. 166 4.)
WEP sought to dismiss the challenge for lack of jurisdiction and standing, as
well as on the substantive ground that the WEP rules had been authorized by
Cuomo and Hochul two of the statewide WEP candidates and no conflicting
rules had been filed by the other statewide WEP candidates or anyone else. (R.
185.) WEP argued that in the absence of any conflict, Section 6-128(4) was

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inapplicable and did not serve as a baseline requirement for party organizing rules
to be valid. (R. 185.)
On August 12, 2015, the Supreme Court, Niagara County dismissed the
Tamburlin challenge for lack of jurisdiction, finding that the court did not have
jurisdiction to litigate the validity of party rules filed in accordance with the
Election Law in the absence of the Gold WEP having filed nominations pursuant to
those rules. (Tamburlin v. Peterson, No. 156326 [N.Y. Sup. Ct., Niagara Cnty.,
Aug. 17, 2015]; R. 182-187.) The Court did not reach the substance of whether
Election Law 6-128(4) requires that a party have the authorization of a majority of
statewide candidates. (Id.)
The Tamburlin Objectors Attempt to Create
a Bogus Conflict with Regard To WEP
Failing to successfully invalidate the formation of the WEP through the prior
proceeding, in an attempt to circumvent the Niagara County Supreme Courts
ruling, the Tamburlin Objectors filed with the State Board a document asserting to
be rules of the Womens Equality Party and purportedly naming themselves as
Chairman, Secretary, and Treasurer of the WEP (the Tamburlin group WEP). (R.
173-174 31; R. 211-223.)

Contemporaneously, the Tamburlin Objectors

executed and filed with the Niagara Board of Elections and State Board of
Elections a document purported to be a certificate of nomination by the WEP,

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nominating someone as the WEP candidate for a Niagara County public office. (R.
208-210.)
The Tamburlin Objectors were all enrolled members of the Republican Party
who alleged no involvement or connection whatsoever with WEP (which
supported the statewide slate of the Democratic Party in the 2014 general election),
except for their prior attempt to invalidate its formation. (R. 167-168 11.) The
filing was nothing more than a transparent attempt to conjure a conflict in WEP
party rules where none existed and to issue a designation pursuant to 16-102 in
order to induce the trial court to reverse the course taken in its prior determination
and rule on the sufficiency of the Gold WEP rules. (Id.) Despite that attempt, the
Gold WEP rules authorized by WEP statewide candidates Cuomo and Hochul
remain the only rules filed with the State Board by statewide candidates nominated
by WEP. (Id.) The remaining WEP statewide candidates, Thomas DiNapoli and
Eric Schneiderman, have not endorsed any WEP rules or other party formation
documents filed with the State Board. (Id.)
The Tamburlin Group Orchestrates a Collusive
And Faux Challenge To Its Own Nomination
A second proceeding seeking to invalidate the Gold WEP filing was
commenced by a citizen objector, Joey DeLabio.

DeLabio challenged the

nomination of the Tamburlin group WEP as improper pursuant to Section 6128(4), and also joined the Gold WEP and another unauthorized WEP that had
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filed rules that were not authorized by any statewide WEP candidate (the Tkaczyk
group) as parties to the proceeding. (Id.) The petition did not seek to challenge
nominations by either the Gold WEP or the Tkaczyk group as neither party had
issued or filed nominations at that time. Despite that fact, DeLabio requested that
the Supreme Court enjoin all of the parties that had filed WEP rules from issuing
nominations in the name of WEP. (Id.)
On September 8, 2015, the Gold WEP met and issued nominations. (R. 168
15; R. 261-262.) Six days later, Justice Frank Caruso issued a Decision and
Order that invalidated the nomination issued by the Tamburlin group WEP and
held that authorization by a majority of the statewide WEP slate was required.
(Id.) Justice Caruso enjoined the Gold WEP (and the other WEPs) from issuing
certificates of nomination in the name of the Womens Equality Party until a
majority of candidates certified a set of rules. (Id.)
Significantly, neither the Tamburlin group nor the Tkaczyk group appealed
Justice Carusos Decision and Order. The Gold WEP did appeal, but only to the
extent the Order had held that the Gold WEP was improperly constituted and
enjoined from issuing further nominations. At oral argument on the appeal, both
the Tamburlin group and the Tkaczyk group opposed the Gold WEP appeal and,
essentially arguing against their own legality, urged that a party could only be
properly constituted if authorized by a majority of its statewide candidate slate.

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The Fourth Department, after granting the Gold WEPs request for an
expedited appeal,

reversed the trial court, holding that the court abused its

discretion in granting injunctive relief against . . . [the Gold WEP] inasmuch as

Election Law 16-102 provided petitioner an adequate remedy to challenge the
Tamburlin group WEP nomination. (DeLabio v. Allen, 2015 NY Slip Op 06954
[4th Dept 2015].) The Fourth Department reasoned that the issue of whether that
particular nomination was valid could be decided without reference to the validity
of the Gold WEP rules because there is no dispute that the Tamburlin groups
rules . . . may not be deemed to be the rules of the WEP for the purposes of the
statute, because no statewide candidate in the 2014 general election has certified
those rules. (DeLabio, NY Slip Op 06954, *1 [emphasis added].) In essence, the
Fourth Department found that because the WEP rules of the Tamburlin group WEP
were not authorized by any WEP statewide candidate they were a nullity. (Id.)
After Justice Carusos Decision and Order had been issued, but prior to the
Fourth Department reversal, Petitioners commenced the instant proceeding. This
proceeding challenges the nomination by the Gold WEP of the Warren WEP
candidates on the grounds that such nominations are invalid in the absence of the
Gold WEP party rules being authorized by a majority (three of four) of the WEP
statewide candidates.

In a Decision and Order issued from the bench on

September 29, 2015, and filed the same day, Justice Krogmann concluded that the

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unauthorized rules filed by the Tamburlin group and Tkaczyk group that had been
found invalid by Justice Caruso (with such finding not reversed on appeal) created
a conflict between the three filed sets of rules and that the lack of an endorsement
of the majority of candidates as clearly required by statute, which apparently is
beyond the group's control, leaves no room for interpretation. He further held that
absent the certification of the majority of the statewide candidates who ran on the
line in 2014 of the proposed Rules, the WEP exists as a political party but does not
have the ability to nominate candidates at this time. (R. 15.)
SUMMARY OF ARGUMENT
The Decision and Order invalidating the nominations of the Gold WEP
should be reversed because the trial court ignored the Fourth Departments recent
ruling in DeLabio v. Allen and impermissibly re-wrote Election Law Section 6128(4) when it held that the statute requires that valid party rules require the
authorization of a majority of statewide candidates who ran on the WEP line to be
effective. The statute provides for no such requirement, but rather simply states
that in the event of a question or conflict as to new party rules, the rule-making
body authorized by a majority of the candidates of such party who were
nominated by petition for offices voted for by all the voters of the state . . . shall be
controlling. Election Law 6-128(4). The Supreme Court misinterpreted what
constitutes a conflict under Section 6-128(4) when it held that the rules filed by

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the Tamburlin group and separate rules filed by the Tkaczyk group neither of
which had been authorized by any WEP statewide candidate created a conflict
within the meaning of Section 6-128(4). As a threshold matter, at the time the trial
court made its determination, the Tamburlin and Tkaczyk rules had been
invalidated by Justice Caruso and those groups did not appeal that ruling. Thus, at
the time the trial court ruled, there were no other operative rules other than the
rules of the Gold WEP.
Further, the Fourth Department found in DeLabio v. Allen that rules that are
unauthorized by any statewide candidate are void on their face and nominations
pursuant to such rules are invalid without reference to any competing rules.
(DeLabio, 2015 NY Slip Op 06954, *1.)

The import of that decision is that

unauthorized rules (such as were issued by the Tamburlin and Tkaczyk groups) are
a nullity and thus cannot be deemed to create a conflict or question within the
meaning of Election Law 6-128(4). That is the precise logic followed by the
Supreme Courts in both Albany and Montgomery counties, in decisions upholding
the Gold WEP rules that were issued following the Fourth Departments DeLabio
ruling. (Van Savage v. Fiala, slip op. 4596-15 [N.Y. Sup. Ct., Albany Cnty., Sept.
29, 2015]; Smith v. Thane, slip op. 2015-0730 [N.Y. Sup. Ct., Montgomery Cnty.,

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Sept. 28, 2015]) (For the Courts convenience copies of these decisions are
annexed hereto as Appendix A).1
Even assuming, arguendo, that unauthorized rules could somehow be
deemed to conflict with the Gold WEP rules (which they cannot), Election Law
6-128(4) does not contemplate or sanction the holding of the trial court essentially
preventing the organization of a new political party that received 50,000 plus votes
in the 2014 general election and preventing it from issuing nominations. Election
Law Section 1-104(3) defines the term party as any political organization
which at the last preceding election for governor polled at least fifty thousand votes
for its candidate for governor. Under that definition, as the trial court conceded,
WEP is a political party. Section 6-128(4) provides one simple mechanism to
decide a conflict among rules filed by competing factions within a party,
mandating that the State Board should recognize the rules authorized by a majority
of statewide candidates.

In such circumstances, the court must look at the

competing rules and determine which one has the greatest nexus to the effort that
resulted in the independent body gaining party status. On this record, that is
clearly the Gold WEP, the only party authorized by WEP statewide candidates.

One additional case, Dadey v. Czarny (slip op. 1273-2015 [N.Y. Sup. Ct., Onondaga Cnty.,
Sept. 28, 2015]), reached this issue by following reasoning similar to that employed by the
trial court in this proceeding. Respondent-Appellants have appealed that decision, with oral
argument scheduled for October 19, 2015 in the Fourth Department.

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ARGUMENT
I.

THE COURT IGNORED THE FOURTH DEPARTMENTS

RULING IN DELABIO IN FINDING THAT THE RULES
SUBMITTED BY THE UNAUTHORIZED WEP GROUPS
CREATED A CONFLICT UNDER SECTION 6-128(4) OF THE
ELECTION LAW
The Supreme Court misinterpreted Section 6-128(4) when it held that there

was no room for interpretation that this section of the Election Law required that a
new partys rules demonstrate affirmative support by a majority of the partys slate
of statewide candidates. Section 6-128(4) does not provide for that result, as
contrary to the trial courts misreading of that provision, its plain language does
not require a majority authorization to create valid rules. Rather, it states that
where a question or conflict exists as to which rules govern, the State Board shall
look to the rules certified by a majority of the candidates of such party who were
nominated by petition for offices voted for by all the voters of the state, and that
[t]he certificate of such candidates describing the rule-making body shall be
controlling. (Election Law 6-128(4).) The clear intent of that provision is to
empower the slate of statewide candidates of a new political party as the only
individuals with power to authorize rules of a new political party, thus preventing
the takeover of that new party by individuals not authorized by such candidates.
The Fourth Department in DeLabio v. Allen recognized this principle when
it held that the Tamburlin group could not issue nominations pursuant to purported

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WEP rules that were unauthorized by any statewide WEP candidate without
reference to the existence of any competing party rules. (DeLabio, 2015 NY Slip
Op 06954.) The Fourth Department reversed the decision of the trial court, which

held that a determination of the validity of the Tamburlin groups WEP

nomination required an analysis of all WEP rules filed with the State Board to
determine if a question or conflict under Election Law Section 6-128(4)
existed. In reversing the trial court, the Fourth Department reasoned that the issue
of whether the Tamburlin group nomination was valid could be decided without
reference to the validity of the Gold WEP rules because there is no dispute that
the Tamburlin groups rules . . . may not be deemed to be the rules of the WEP
for the purposes of the statute, because no statewide candidate in the 2014 general
election has certified those rules. (DeLabio, 2015 NY Slip Op 06954 [emphasis
added].) The logic of that ruling is that the rules of the Tamburlin group must be
treated as a nullity on their face. If they are a nullity, then those purported rules
(as well as the unauthorized Tkaczyk purported rules) cannot be deemed to create
a conflict or question under Section 6-128(4).
That is the precise interpretation adopted by the Justice Joseph M. Sise of
the Supreme Court, Montgomery County, in Smith v. Thane (slip op. 2015-0730.)
In that case, which followed the Fourth Departments decision in DeLabio, the
trial court found DeLabio controlling, stating that the 4th Department analyzing

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the issue found that the Tamburlin rules did not constitute rules of the Womens
Equality Party because no Statewide candidate in the 2014 election has certified
those rules. (Id. at 10.) The trial court further noted that, the 4th Department has
set the threshold for recognition of party rules as certification of those rules of at
least one candidate and need not be the majority. (Id. at 11.) Thus, the trial court
found that logically, Election Law Section 6-128(4) recognizes only those rules
certified by at least one candidate of the Womens Equality Party and the
competing rules of the Tamburlin and Tkaczyk groups were a nullity. (Id. at 13.)
Shortly after Smith v. Thane was issued, Justice Richard Platkin of the
Supreme Court, Albany County, reached the same result based on similar
reasoning in Van Savage v. Fiala, slip op. 4596-15. In Van Savage, the court
relied on language from the Fourth Departments DeLabio ruling stating that the
Tamburlin group WEP rules may not be deemed to be the rules of the WEP for
purposes of the statute, because no statewide candidate . . . [sic] in the 2014
general election has certified those rules. (Id. at 6 [citing DeLabio at 2-3]). In
light of that holding, the Albany trial court held that it must conclude that
presently there is no question or conflict relating to the rules or the rule-making
body of the Womens Equality Party that implicates the dispute resolution
process of Election Law 6-128(4). (Id.) As the Supreme Court observed in
Van Savage, the Fourth Departments ruling leaves the rules of the Tamburlin

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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. (Id.)
The trial court in the instant appeal ignored the clear import of the Fourth
Departments DeLabio ruling, which held that the Tamburlin groups rules were,
as noted by Justice Platkin, without force or effect due to the absence of
statewide candidate support. It similarly ignored that the Tkaczyk rules suffered
from the same infirmity when it found, in conclusory fashion, that a question or
conflict existed at the time it reached its decision. It further ignored that neither
the Tamburlin group nor the Tkaczyk group had appealed the decision of Justice
Caruso invalidating their party rules, and had actually argued in favor of such
invalidation before the Fourth Department in DeLabio.
Even putting aside the failure by the Tamburlin and Tkaczyk groups to
appeal Justice Carusos ruling invalidating their rules, the other reported cases
interpreting Section 6-128(4), while involving very different factual situations, also
support treating those rules as nullities that cannot create a conflict with the Gold
WEP rules. In In Re Steward v. Fossella, the New York Supreme Court found that
6-128(4) recognizes as the only identifiable body of individuals affiliated with a
new party its slate of Statewide candidates and grants to a majority of that body
and it alone the authority to adopt and certify rules. (174 Misc.2d 620 [N.Y. Sup.

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Ct., Kings Cnty 1997].) In Steward, the court held that an individual purporting to
act on behalf of the newly established Tax Cut Now Party by filing rules,
changing the party name, and nominating candidates under the new party name of
Freedom Party, lacked the authority to do so. (Id. at 623-624.) The individual
acting as the chair of the party did so without the party ever formally organizing.
There was no organizational meeting and, to the extent that there were rules filed,
they appeared to be in the name of the committee on vacancies from the
nominating petition filed by the Tax Cut Now party with the State Board of
Elections [prior to the election], but the committee on vacancies went out of
business long before the new party attempted to file documents with the Board of
Elections. (Id.)
The language in Steward confirms the intent of the Election Law to
empower a new partys slate of statewide candidates as the only identifiable body
of individuals affiliated with a new party. (See also Smith v. Thane, supra at 12
(a strong argument has been made that the parties in interest, the four candidates,
those who underwent the arduous task of creating an independent body by
garnering the thousands of signatures by petition to get their candidates on the
Statewide ballot and then overcoming the hurdle of obtaining more than 50,000
votes . . . are those recognized by the Election Law and should be recognized by

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the Fourth Department who have the ability to set and establish the rules of the
newly formed Party.).)
The trial court relied on In Re Independence Party of New York v. Board of
Elections in the City of New York, 213 A.D.2d 209, 209 [1st Dept 1995], as
support for its erroneous interpretation of Section 6-128(4). (R. 15.) However,
that case similarly confirms the sole authority of statewide candidates of a new
party the power to adopt and certify rules.

(Id. at 209.)

While the First

Department, in dicta, summarized Election Law Section 6-128(4) as recognizing

the only identifiable body of individuals affiliated with a new party its slate of
statewide candidates and grants to a majority of that body the authority to adopt
and certify rules, the courts casual and imprecise summary of that section was
not relevant to its holding that Section 6-128(4) was constitutional, facially and
as well as applied [t]herein. (Id.) In reaching its decision, that court was not
faced with the facts at issue here, and did not squarely hold that the rules of a new
party needed to be certified by a majority of the statewide candidates in order to
be valid. Rather, it held that Election Law Section 6-128 was constitutional
facially, and as applied to the facts in that case.
In this proceeding, the trial court should have found that the Gold WEP
filing was the only legitimate filing by WEP under the Election Law, as it is the
only set of rules that were authorized by any of the new partys statewide

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candidates. The Tamurlain groups purported rules declared invalid in DeLabio.

Similarly, there is no evidence in the record that the filing of the Tkaczyk WEP
was authorized by any of the slate of statewide WEP candidates, and thus, under
the reasoning from DeLabio, cannot be viewed to have created a conflict as
contemplated by section 6-128(4). Likewise, the Tamburlin group WEPs actions
were not authorized by any of the WEP statewide candidates. (R. 167-168 11.)
Neither group included with their filing any authorization by any candidate
whatsoever who ran as a WEP candidate in 2014. As the Fourth Department held,
the rules of the Tamburlin group WEP may not be deemed to be the rules of the
WEP because no statewide candidate in the 2014 general election has certified
those rules. (DeLabio at 2-3.) As such, those rules cannot create a question or
conflict with regard to WEP rules or the authority of its executive committee.
The Tkaczyk group rules suffer from the same lack of authorization as the
Tamburlin group rules and thus are similarly invalid.
Moreover, it is long accepted that where the plain meaning of a statute is
clear, the court should not rely on other means of interpretation. (See, e.g., City of
Buffalo v. Lawley, 6 A.D.2d 66, 68-69 [4th Dept 1958].) A plain reading of
Section 6-128(4) leads to the unmistakable conclusion that the paragraph speaks
to a particular situation when the Board receives more than one set of
legitimately authorized rules for a new party that the Board treat the rules with

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the imprimatur of the majority of the statewide candidates as the prevailing

documents. (See Election Law 6-128(4).) It does not hold, as the trial court
mistakenly concluded, that in order to organize, a new party must be authorized
by a majority of its statewide candidates. (Van Savage, supra at 7 [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].)
Accordingly, because the Gold WEPs rules are the only rules authorized by
any of the WEPs slate of statewide candidates, as well as the only rules that have
not been adjudicated invalid, the trial court erred in finding that a conflict or
question existed pursuant to Election Law 6-128(4) and that the Gold WEP
certificates of nomination were invalid because its rules were not certified by a
majority of the WEP statewide candidates. The Supreme Courts re-writing of the
Election Law to require that valid WEP rules must be authorized by a majority
of the partys slate of statewide candidates adds language to the statute which does
not exist, and strays from the precedent from the Fourth Department and
elsewhere that a new partys slate of statewide candidates are the only identifiable
body of individuals affiliated with a new party, and thus the only individuals who
can authorize rules on behalf of that party. The Decision and Order of the trial
court should be reversed.

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II.

THE COURT ERRED IN IGNORING THE GOLD WEPS PARTY

RAIDING ARGUMENT
The Supreme Court erred in treating the Gold WEP rules as invalid and

refusing to consider the motives of both competing WEP groups in filing their
unauthorized WEP rules. New York has long sought to prohibit the exact type of
party raiding attempted by these groups, and the Courts refusal to consider the
groups motives in reaching its determination further militates in favor of reversal
of the courts ruling.
An example of New Yorks intent to prevent party raiding is provided in
Election Law Section 6-120, which generally requires that [a] petition . . . for the
purpose of designating any person as a candidate for party nomination at a primary
election shall be valid only if the person so designated is an enrolled member of the
party referred to in said designating petition at the time of the filing of the
petition, unless the candidate has been authorized by the other political party and
that political party, after a vote by the partys committee, issues an authorization
certificate. (Election Law 6-120(1), (3).) This section is commonly referred to
as the Wilson-Pakula law, and provides explicit mechanisms to ensure that
members of one of the two major parties cannot raid other established parties. This
section of law is the cornerstone that affords established political parties with
independence and sanctity.

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Without these protections, major parties would have long been able to thwart
the independent action of third parties in the State by running its candidates as
third-party candidates over the objection of the party leadership. Third parties
have been responsible for the election of candidates for many major offices in New
York, including a United States Senator, the Mayor of the City of New York, and
members of the New York State Legislature. The Wilson-Pakula law is drafted in
such a way that a non-party member may only run in a primary if the party wishes
to let that individual run in its primary, in order to ensure that the non-party
member is not able to raid the other political party. Simply because there is no
primary required for the WEP this year due to it being the first year of the partys
existence, the competing WEP groups unauthorized by any WEP statewide
candidate -- should not be permitted to raid (and seek to destroy) the organization
through the filing of purported rules to create a bogus conflict under 6-128(4).
Following the lead of the Fourth Department in DeLabio, such rules should not be
given any effect under the Election Law, including as a vehicle to create a
question or conflict under Section 6-128(4). The Supreme Courts finding that
the competing WEP rules are entitled to the same consideration as the Gold WEPs
rules undermines the intent to prohibit party raiding embedded in provisions such
as the Wilson-Pakula law and Section 6-128(4), and gives anyone unfettered rights
to tamper with the rules of a validly organized party.

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Courts have often also held that party raiding is disfavored and contrary to
the intent of the New York Election Law. (See, e.g., Rosario v. Rockefeller, 410
U.S. 752 [1973] (holding that preservation of the integrity of the electoral process
is a legitimate and valid state goal, as such, New York State had a legitimate
interest in enacting statutes to prevent party raiding, and therefore New York was
permitted to restrict when individuals were permitted to enroll in parties); see also
In Re: Walsh v. Abramowitz, 100 Misc.2d 940 [N.Y. Sup. Ct., Suffolk Cnty. 2009]
(explaining statutory scheme set forth by the State Legislature is designed to
protect minor parties from just such injurious activities), affd 78 A.D.3d 852 (2d
Dept 2010).)
In light of the statutory requirements and the history of New York precedent
protecting political parties from party raiding, the court below should have
considered the motives of the competing WEP groups (who did not even seek to
overturn the Fourth Department holding invalidating their rules) and in rejecting
their demand for injunctive relief against the Gold WEP.
III.

EVEN ASSUMING THAT THE COMPETING WEP RULES ARE

DEEMED TO CREATE A CONFLICT OR QUESTION UNDER
ELECTION LAW 6-128(4), SUCH SECTION DOES NOT
CONTEMPLATE OR SANCTION THE HOLDING OF THE TRIAL
COURT PREVENTING THE ORGANIZATION OF A VALID
PARTY AS DEFINED IN THE ELECTION
Even assuming, arguendo, that unauthorized rules could somehow be

deemed to conflict with the Gold WEP rules (which they cannot), Election Law
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6-128(4) does not authorize the relief issued by the trial court that prevents a duly
constituted political party from organizing.

Election Law Section 1-104(3)

defines the term party as any political organization which at the last preceding
election for governor polled at least fifty thousand votes for its candidate for
governor. There is no dispute that WEP received the requisite 50,000 votes at the
2014 general election. (R. 10.) Thus, under the applicable definition, WEP is a
political party.
Justice Platkin recognized precisely this point in Van Savage, concluding
that there is nothing in the Election Law that makes candidate certification a
condition precedent to the validity of interim party rules. (Van Savage, supra at
7; Smith v. Thane, supra at 12.) If a question or conflict arises within the new
party, Section 6-128(4) provides one particular tool to resolve such conflict,
mandating that the State Board should recognize the rules authorized by a majority
of statewide candidates.

However, the statute does not expressly foreclose

competing claims from being determined by less conclusive means. (Van Savage,
supra at 7.)
Here, the default in the Election Law to resolve a question or conflict among
new party rules is of no utility because no party rules are authorized by a majority
of the slate of statewide candidates. The remedy, however, is not to prevent an
independent body that has achieved lawful party status from organizing itself

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and issuing nominations. To do so would, as Justice Sise recognized in Smith v.

Thane, frustrate a nascent partys ability to act. (Smith v. Thane, supra at 12.)
Rather, where a question or conflict is found to exist but no party rules are
authorized by a majority of the statewide slate, the court must look at the various
competing rules and determine which one has the greatest nexus to the effort that
resulted in the independent body gaining party status to determine which group
should be entitled to organize the party, with authorization of the statewide
candidates the most significant factor in that analysis. (See Van Savage, supra at
7-8.)
On this record, it is clear that the rules of the Gold WEP, the first group to
adopt rules and organize the Womens Equality Party and the only party authorized
by any of the WEP statewide candidates, should govern the operation of this new
party. As noted previously, the Fourth Department in DeLabio (as well as the
court in Smith v. Thane) recognized that it is the slate of candidates who are
recognized by the Election Law as the persons empowered to set and establish
rules of a newly formed party. The Gold WEP rules are the only WEP rules
authorized by WEP statewide candidates. On the other hand, besides the lack of
statewide candidate authorization, there is nothing in the record that shows any
connection between the Tamburlin and Tkaczyk groups and the effort to elect the
WEP slate in the 2014 general election.

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Accordingly, even if the Fourth Department deemed that a conflict or

question under 6-128(4) exists, it should nevertheless hold that under the facts
reflected in this record the Gold WEP rules are properly deemed the controlling
rules of the newly formed WEP.
In summary, this Court should reverse the Supreme Courts decision
because:
1. The is no question or conflict that exists to trigger the operation of 6128(4) of the election law
2. Without a questior or conflict, the only set of documents that can be
deemed rules of the WEP is the Gold WEP Rules; and
3. Even if this court were to find that a confict exists, to give any validity
to the Tamburlin or Tzacyk groups documents would allow for party
raiding and would be contrary to New York public policy

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CONCLUSION
For all the foregoing reasons, Respondent-Appellant respectfully requests
that the Court reverse the Decision and Order of the Supreme Court.
Dated:

October 2, 2015
New York, New York
GREENBERG TRAURIG LLP
By:
Steven C. Russo
200 Park Avenue
New York NY 10166
Telephone: (212) 801-9200
Facsimile: (212) 801-6400
Attorneys for Respondent-Appellants

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CERTIFICATE OF COMPLIANCE
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