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December 12, 2016 ‘Albany, New York 12206 Re: Matthew J. Clyne v John J. Flynn, as Chairman ofthe Atbany County Enclosures STATE OF NEW YORK OURT COUNTY OF ALBANY In the Matter of the Application of MATTHEW J, CLYNE, DECISION AND Petitioner, JUDGMENT -against- JOHN J. FLYNN, as Chairman of the Albany County Democratic Committee, Respondent, Index No. 0719-16 (RII No, 01-16-122965) APPEARANCES: MarrrHew J. CLYNE, ESQ. Petitioner pro 82 North Russell Road Albany, New York 12206 PAUL M. COLLINS, ESQ, Attorney for Respondent 181 South Main Avenue Albany, New York 12208 Hartman, J, Petitioner Matthew J. Clyne commenced this CPLR Article 78 proceeding to (1) compel respondent John J. Flynn to file with the Albany County Legislature a certificate of the party recommendation of the Albany County Democratic Committee designating petitioner as the Committee's candidate for the public office of Albany County Democratic Elections Commissioner, and (2) prohibit respondent from “conducting proceedings to rescind the vote” that resulted in his nomination. Because respondent's duty tofile the certificate of party recommendation is purely ministerial, mandamus to compel is granted. Prohibition is denied. Legal Background Statutory Process for Selecting Commissioner of Elections lection Law § 3-204 (1) states that [alt least thirty days before the first ymissioner of elections is to be day of January of any year in which a co appointed, the chairman or secretary of the appropriate party county a certificate of party recommendation with the clerk of the committee shall appropriate local legislative body.” That recommendation is to be made by the county committee, “by a majority of the votes cast at a meoting of the members of such committee at which @ quorum is present.” Once the chair or secretary files the certificate of party recommendation, the county legislature (or the members of the appropriate political party where the body as a whole fails to 2 act within 30 days of the filing of the certificate of recommendation) appoints the commissioner of elections (Election Law § 3-204 (4). If the county legislature or party caucus fails to appoint any “of the persons named in any of the certificates filed by a party” within 60 days of filing of the certificate, the county party committee “may file another certificate ...” (id.). If a party fails to timely file a certificate, the members of that party in the Legislature may appoint the commissioner of elections (id.) Weighted Voting When a county party committee is constituted of two members from each election district, each committee member's voting power is proportional to the party vote in the last gubernatorial or assembly election, or to party enrollment, depending on the circumstances (Election Law § 2-104). The Blection Law mandates weighted voting “without excepting any category or subject matter” (Davis v Sullivan County Democratic Comm., 58 AD2d 169, 171 [3d Dept 1977], aff 43 NY2d 964 [1978]; see Cunningham v Commisso, Sup Ct, Albany County, December 21, 2006, McNamara, J., index No. 6800-06I, at *4). A proceeding to challenge a party committee vote for violation of the weighted voting requirement must be commenced within 10 days after the meeting or caucus at which the vote was taken (Election Law § 16-102 [2]). Factual Background On September 29, 2016, the Albany County Democratic Committee (Committee) voted to “recommend Mr. Clyne for the position of Democratic Elections Commissioner . . . by a vate of 153-38" (Higgins Affidavit, 4 11). The vote was taken by rising vote (also called a “standing vote"), and not by roll call. Proxies were not counted. Mr. Clyne affirms that no objection was raised to the form of the vote. Mr. Clyne further affirms that Mr. Flynn himself was elected Chair earlier in that same meeting by rising vote (a fact conceded by Mr. Flynn's counsel at oral argument), and that Mr. Flynn presided over the rising vote for Mr. Clyne. Prior to the recommendation vote, the Committee considered a “motion to tablefindefinitely postpone” the recommendation vote (id. at { §) Christopher Higgins, a member of the Committee, avers that, as the vote on the motion to table was being counted, he and other members of the Committee asked why the vote was not weighted and why proxies were not considered. Mr. Higgins does not allege that he or other members of the Committee objected to the form of the recommendation vote, After the recommendation vote was taken, Mr. Flynn did not file a certificate of party recommendation with the County Legislature. Instead, he called for a new vote to take place on November 28, 2016, by giving “notice of, a meeting of the County Committee for the purpose of adopting a lawful 4 Resolution recommending a qualified individual as Democratic Elections Commissioner by reason of the legal infirmity of the September 29, 2016 vote’ (Answer, 4). Mr. Flynn also “convened the Candidate Review and Executive Committees of the party for the purposes of a recommendation to the full County Committee” (id. Mr. Clyne commenced this proceeding by order to show cause and verified petition on November 28, 2016, The order to show cause executed by the Court “restrained and enjoined [Mr. Flynn] from conducting proceedings for the selection of a Democratic elections commissioner pending resolution of this proceeding.”! Arguments of the Parties In the petition, Mr. Clyne argued, among other things, that his election was ‘in all respects valid and sufficient, and that [Mr. Flynn] was and is obligated to forward a certificate of party recommendation to the Clerk of the Albany County Legislature, in accordance with Election Law § 9-204" (Petition, 1 10). Petitioner also argued that the Committee's rules forbade it from voting again on a recommendation for the Democratic Elections (On November 28, 2016, at the order to show causo appearance, the Court offered to set a tight briefing schedule and have the matior assigned to a judge immediately so that the Committee could mest before its December 2, 2016 deadline for filing. the certificate Nevertheless, respondent requested until the close of business on December 2 to file its opposition and petitioner consented to this request. Petitioner's reply papers were due December 5, 2016, The Court held oral argument on December 7, 2016 Commissioner because, under Robert's Rules of Order, election results are final and bindi Mr. Flynn argued in opposition that (1) Mr. Clyne had failed to join necessary parties; (2) Mr. Clyne had in an earlier proceeding argued that the Committee was required to use weighted voting and was thus judicially estopped from arguing that weighted voting was not required for the recommendation vote; (8) the recommendation vote was a void from its inception and a nullity because it did not comply with the weighted voting requirement of Blection Law § 2-104; (4) petitioner should have simply placed his name before the Committee on the contemplated weighted recommendation vote; (5) Mr. Flynn does not have a duty to file the certificate of recommendation with the County Legislature because such filing would be ‘unlawful; and (6) mandamus to compel does not lie because Election Law § 3-204 contemplates the possibility that the Committee may not file a recommendation with the Legislature. In reply, Mr. Clyne argued that a rising vote was proper because no one hhad called for a weighted roll call vote, that Mr. Flynn had waived objection to the procedure of the recommendation vote because he had presided over and participated in it without objection, and that the 10-day statute of limitations set forth in Election Law § 16-102 for challenging the vote had passed. Analysis Petitioner requests an order compelling respondent to submit the certificate of party recommendation to the County Legislature and an order prohibiting respondent from presiding over a re-vote on his recommendation. Petitioner is entitled to mandamus to compel because the filing of the certificate of party recommendation is a mandatory act. Petitioner has not demonstrated entitlement to prohibition. Mandamus to Compel ‘Mandamus to compel . .. is an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” (Matter of Thornton v Saugerties Cont. Sch. Dist., __AD3d__, 2016 NY Slip Op 08139, *1 [2016] internal quotation marks omitted]). The chair of a party committee performs a purely ministerial act when he files a certificate of party recommendation (see Election Law § 3-204 [1] [*the chairman . . . ofthe appropriate party county committee shall file a certificate of party recommendation’; see Matter of Mariani v Van Lengen, 25 AD2d 716 [4th Dept 1966). Here, the Albany County Democratic Committee voted to recommend Mr. Clyne for the position of elections commissioner. Mr. Flynn, as the Committee's chair, did not possess any discretion in filing the certificate of recommendation—he was required by statute. to do so (see Blection Law 7 § 8-204 [1]; of. Lichtman v Bd. of Elections, 27 NY24 62, 65 [1970] (‘Board of Elections does not have the authority, after the election, to withhold certification of a duly elected candidate”) Contrary to Mr. Flynn's contention, Election Law § 3-204 (4) does not render his duty discretionary. That section provides a contingency for when the “party fails to file a certificate.” It does not speak to the party chait’s duty to file a certificate when the Committee has voted in favor of a recommendation, which is governed by Election Law § 3-204 (1). Mr. Flynn argues that the vote to recommend Mr. Clyne was void from its inception, and that to grant mandamus to compel would require him to undertake an illegal act, Had Mr. Flynn wished to obtain a ruling that the recommendation vote was illegal and void, he should have brought a proceeding pursuant to Election Law § 16-102 within ten days of the vote. Neither he nor anyone else did so, and the 10-day statute of limitations has long since run. Absent judicial invalidation of the vote, he was required to perform his ministerial duty and file the certificate of party recommendation, ‘The Court rejects Mr. Flynn’s argument that, because he is not seeking judicial invalidation of the vote, Election Law § 16-102 is inapplicable here, ‘The statute of limitations imposed by the Election Law reflects public policy favoring finality of votes taken in “a. . . meeting of a party committee, or caucus” (Election Law § 16-102 [2]; see Matter of Korman v N.Y. State Ba. of 8 Elections, 137 AD3d 1474, 1475 [3d Dept 2016] [citing Matter of Herkimer Republican Party, 119 Misc 2d 801, 804 (Sup Ct, Herkimer County 1983)), tv denied 27 NY3d 903 [2016}). To allow, at this late date, Mr. Flynn to declare the recommendation vote void would invite mischief and throw into doubt the finality of Committee votes (cf. Lichtman, 27 NY2d at 66 [explaining “public policy of finality in elections"). If respondent’s assertion that the recommendation vote was void from its inception were correct, he and the Committee could revisit any unweighted vote, without regard to the limitations period of Election Law § 16-102 (2), no matter how distant in time, simply by declaring it void from its inception. Such a result would be antithetical to the publie policy favoring finality in these matters. Aside from the failure to bring any timely proceeding pursuant to Election Law § 16-102, respondent waived his objections to the form of the recommendation vote. Mr. Flynn himself presided over the recommendation vote. He participated in the vote. And he raised no objection to the form of the vote. Nor has he submitted evidence that any other member of the Committee objected—either formally or informally—to the recommendation vote! Moreover, Mr. Flynn did not schedule a new vote until November 28, 2016, two ts logical conclusion, every past unweighted vote from ite snowption, This would appear to include ‘lect Mr, Flynn as Chair, as he concedes that he was elected by rising vote months later, on the eve of the filing deadline, Mr. Flynn cannot now be heard to raise an objection to a voting procedure over which he presided and to which he and the Committee failed to object (see Matter of Jarose v Spano, 65 AD34 19]; Matter of Gosline, 127 AD2d 1010 [4th Dept 1987} 991, 992 [2d Dept Nicolai v Kelleher, 2007 NY Slip Op 52580(U}, *9 [Sup Ct, Albany County 2007], afd 45 ADSd 964 [3d Dept 2007). Writ of Prohibition ‘A writ of prohibition is only available where a body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction and there is a clear legal right to such relief" (Matter of Koziol v Hood, 92 AD3d 1161, 1162 [3d Dept 2012] [internal quotation marks omitted), app dismissed 19 NYd 886 [2012)). Here, petitioner has not demonstrated that any body or officer is about to proceed in excess of jurisdiction. The Court's mandamus order compels Mr. Flynn to file the certificate of party recommendation, rendering prohibition academic.4 Respondent's Remaining Arguments The Committee is not 2 necessary party to this proceeding. Complete relief has been accorded to petitioner, and the Committee will not be inequitably affected by this Court's order inasmuch as it has no more right Court declines to address what actions the Committee may take once Mr. Flynn files for review. 10 are not than the Chair to prevent him from filing the certificate (see CPLR 1001). The Court also holds respondent's standing and estoppel arguments meritless. For the reasons stated above, it is ORDERED that the petition is granted in part as specified below; it is ORDERED that respondent is directed to file the certificate of party yner as candidate for the public office of recommendation recommending petit Albany County Democratic Elections Commissioner with the clerk of the Albany County Legislature within three days of service of this decision with notice of entry; it is ORDERED that the petition is otherwise denied. This constitutes the Decision and Judgment of the Court. The original Decision and Order is being transmitted to petitioner's counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this Decision and Judgment does not constitute entry or filing under CPLR 2220 ieved from the applicable provisions of those rules and counsel is not 1 respecting filing and service. Dated: Albany, New York December 12, 2016 Bemsex GQ - Watria Denise A. Hartman Acting Supreme Court Justice u Papers Considered 1 2. eropay Order to Show Cause and Verified Petition, with Exhibits A-B ‘Transcript of November 28, 2016 Order to Show Cause Appearance Verified Answer, with E Affirmation of Paul M. Collins in Support of Objections in Point of Law Memorandum of Law in Support of Objections in Point of Law Affidavit of John Flynn in Support of Objections in Point of Law Affidavit of Christopher Higgins Letter of Paul M. Collins Dated December 5, 2016 (Received December 9, 2016) Reply Affirmation and Memorandum of Law 12