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,

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THE 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

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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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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 Respondent-Candidates 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.

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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. 196-

200.)

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 6-

128(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 6-

128(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.

1 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

-18-

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

-19-

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

-20-

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.

-21-

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.

-22-

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.

-23-

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

-24-

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

-25-

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.

-26-

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 6-

128(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

-27-

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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