In this Election Law proceeding, petitioners are candidates on a ballot seeking the Working Families Party (WFP)'s nomination for public offices in the September 18, 2007 primary election in the City of Troy. After being given notice of a hearing to be conducted on September 1, 2007, and then adjourned to September 4, 2007, the subject of which was whether or not petitioners were in sympathy with the principles of the WFP, petitioners commenced the present proceeding.

The petition seeks to have proceedings commenced by respondent Patricia Pafundi (Pafundi), Chairperson of the Rensselaer County WFP, to invalidate the enrollment of petitioners in the WFP, declared untimely and jurisdictionally defective as seeking to invalidate the candidacy of each of the petitioners. Petitioners also assert that they were given insufficient notice of the hearing held on September 4, 2007. Petitioners assert that the conduct complained of in the petition violates their First Amendment rights of freedom of speech and freedom of association, their Fourteenth Amendment right to due process, and Election Law §§ 17-102(5) and(8), and 17-152.

Respondent Pafundi has filed a Verified Answer, Counterclaim and Cross-Claim. Pafundi asserts that the petition should be dismissed for failure to state a claim and requests that her counterclaim, seeking to cancel petitioners' enrollment in the WFP, and her cross-claim, seeking to have the Board of Elections directed to remove petitioners' names from the ballot in the primary election, be granted.

Respondent Harriet Warnock-Graham (Warnock-Graham) has filed a Verified Answer, Counterclaim and Cross-Claim, seeking identical relief as that sought by Pafundi.

Respondent Andrew Cuomo, Attorney General of the State of New York, requested that the Attorney General's office be dismissed from this proceeding on the basis that the alleged constitutional issues concern only challenges to the laws as they were applied to petitioners and do not directly challenge the constitutionality of any laws. On consent of petitioners, the Attorney General's office was dismissed from this proceeding.

This matter was returnable on September 12, 2007, at which time counsel for petitioners, Pafundi and Warnock-Graham appeared on the record for oral argument and also entered a stipulation on the record. No party called witnesses and a hearing was not conducted. The stipulation of the parties was as follows: the primary election relevant to this proceeding will be held on September 18, 2007; petitioners constitute one slate of candidates in the primary election; there is another slate of candidates opposing petitioners in the primary election; and there is a WFP Certificate of Authorization, dated July 19, 2007, in the record (Reply of Petitioners, Exhibit B).

Regarding the relevant background facts which are not in dispute, on August 27, 2007, Warnock-Graham sent a letter to Pafundi, requesting a hearing pursuant to Election Law § 16-110(2). Her letter concerned each of the seven petitioners and stated in relevant part: [*2]

Pursuant to Section 16-110(2) of the Election law I would like to file a complaint against the following people who have entered the Working Families Party primary in 2007 on the grounds that such people are not in sympathy with the principles of the Working Families Party as required by law, but rather are surrogates of Robert Mirch, an officer of the Conservative Party, who is attempting to seize control of the Working Families Party in Rensselaer County.

. . . . .

I believe that the enrollment of such people in the Working Families Party should be cancelled and their participation in the Working Families Party primary should be discontinued.

(Petition, Exhibit A).

Pafundi then served a letter on each of the seven petitioners, scheduling a hearing pursuant to Election Law § 16-110(2), and indicating that she "received a complaint . . . indicating that [each petitioner is] not in sympathy with the principles of the Working Families Party." The hearing was initially scheduled for September 1, 2007 (Saturday of Labor Day weekend) at Troy Public Library in Troy. It was then rescheduled for September 4, 2007 (Tuesday following Labor Day weekend) at the headquarters of the Capital District Chapter of the WFP in Albany.

The hearing was conducted on September 4, 2007, at the conclusion of which Pafundi issued a decision that the seven petitioners were not in sympathy with the principles of the WFP. A notice was provided by petitioners' attorney that none of the seven petitioners would be attending the September 4, 2007 hearing. The notice further provided in relevant part as follows:

An application is being made to the New York State Supreme Court in Rensselaer County at 9:00 am on Tuesday, September 4, 2007 to stay and restrain any hearing from being held or conducted by the Rensselaer County Committee of the Working Families Party.

The failure of the individuals to appear may not be construed as a lack of cooperation or lack of sympathy with the principles of the WFP.

(Pafundi Answer, Exhibit 4).

An Order to Show Cause was signed on September 4, 2007, however the injunctive relief requested in the form of restraining the hearing from being held or conducted by the WFP was not granted.

The minutes of the hearing held on September 4, 2007 are part of the record of this proceeding, along with the written decision of Pafundi, finding that petitioners' enrollment in the WFP should be cancelled (Warnock-Graham Answer, attached Exhibits). The hearing minutes reflect that Pafundi noted the absence of petitioners and also acknowledged their attorney's notice that they would not be appearing. The minutes reflect that the following exhibits, annexed to the Answers of Pafundi and [*3]Warnock-Graham, were marked and considered at the hearing:

Exhibit 3 - unsworn statement by petitioner John R. Scott (Scott), attesting that he was not aware that a petition naming him as candidate was created, circulated or submitted until after the deadline for declining the candidacy had passed, and also stating that he does not share the principles of the WFP and has no interest or intention of cooperating with the WFP regarding his current candidacy.

Exhibit 5 - Affidavit of Steven Downs - regarding conversation with petitioner Consuello in which Consuello indicated that he was asked to run by Robert Mirch (Mirch) and that he could not sign a statement that he supported the WFP's principles without first checking with Mirch.

Exhibit 6 - Affidavit of James Welch - containing an unsworn statement by petitioner Fortuin indicating that she wishes to disassociate herself from the WFP and does not share their principles.

Exhibit 7 - designating petitions of petitioners - notarized by Mirch

As part of the exhibits at the September 4, 2007 hearing, the affidavits of service of the hearing notice are part of Exhibit 3 (annexed to Warnock-Graham Answer). The affidavits of service reflect service by mail, and in some instances personal service, on each petitioner on either August 30 or 31, 2007. Election Law § 16-110(2) requires that two days' notice of the hearing be provided, by either personal or mail service. To the extent the petition asserts that notice was insufficient, the Court finds that this argument is without merit.

The written decision of Pafundi notes the following evidence relating to the following petitioners:

Scott: signed statement that he did not share principles of WFP; signed statement that he was not aware that a petition naming him as candidate had been submitted

Fortuin: signed statement that she did not share principles of WFP

Consuello: in conversation with Stephen Downs, stated that Mirch asked him to run as candidate in WFP primary and that he would have to first check with Mirch before signing statement that he supported WFP's principles; he is employee of Mirch in Troy Public Works Department

All Petitioners Generally: Mirch notarized the designating petitions for all petitioners; all petitions designate the same three individuals (petitioners Consuello, Morine, Coalts) as a committee to fill vacancies

The written decision of Pafundi also detailed information relating to Mirch as follows:

Finally, it is important to note that Robert Mirch is the Constituent Liaison to Republican Senator Joseph Bruno the Republican majority leader of the State Senate. Mr. Mirch is also a registered Conservative Party member and the Republican Majority Leader for the Rensselaer County Legislature. Furthermore, Mr. Mirch is the Commissioner of Public Works for the City of Troy appointed by the Republican Mayor of Troy. Thus Mr. Mirch's credentials as a Conservative and a Republican are well established and he is clearly not in sympathy with the principles of the WFP which are progressive. There [*4]would be no reason for Mr. Mirch to be running candidates in the WFP primaries except to substitute candidates who are not in sympathy with the principles of the Working Families Party. Marlene Fortuin and John Scott are prime examples of this. [*5]

The written decision of Pafundi concludes by finding that all seven petitioners "are

not in sympathy with the principles of the WFP and that their enrollment in the WFP should be cancelled."

In support of their respective pleadings, the parties have submitted multiple affidavits in support of their positions.

In support of the petition, an affidavit of Robert Mirch was provided. Mirch attests that he shares certain views of the WFP and that petitioners are not his surrogates.

In support of her answer, counterclaim and cross-claim, respondent Pafundi has submitted an affidavit. She asserts that Mirch is not in sympathy with the WFP and that he has a history of running candidates under his control in the WFP primary and of trying to take over control of the Rensselaer County Committee of the WFP. She notes that she considered the evidence at the September 4, 2007 hearing regarding petitioners, as detailed above. She also affirms in her affidavit that none of the seven petitioners filed questionnaires or appeared for interviews with the WFP, as all other candidates did who sought the WFP endorsement. The Court is not aware of any requirement of the Election Law, or by-law of the WFP, that requires members of a party to file questionnaires or appear for interviews as a condition of party membership, and notes a distinction between conditions for party membership and for party endorsement of a candidacy.

In their reply papers, petitioners submit the affidavits of petitioners Fortuin, Coalts, and Consuello. Fortuin attests in her affidavit that she is 21 years old, is aware she is a candidate for the WFP, that she wants to be a candidate and that she wants to continue to be enrolled in the WFP. She attests that a couple of weeks ago people came to her door, talked about the WFP, and that she signed a document, which she did not read, after being told it would take her off a "calling list." She attests that she wants her name to remain on the ballot and that although she knows Mirch, she is not his surrogate.

Coalts attests in his affidavit that he is 29 years old and asserts that he wants to continue to be enrolled in the WFP and as a candidate for the election this year. He notes that he was a candidate of the WFP for the Assembly last year. He notes that he knows Mirch, but is not his surrogate. He asserts that he believes he is in sympathy with the goals of the WFP and requests that the Court decline to cancel his enrollment in the WFP or to remove him from the ballot.

Consuello attests in his affidavit that he is 21 years old and has been enrolled in the WFP since he was first registered to vote. He asserts that he shares the goals of the WFP and notes that last year he ran as a candidate for Assembly. He acknowledges working for Mirch and discussing his candidacy with Mirch. He asserts that he wants to remain enrolled in the WFP and does not want to be removed as a candidate for office in this year's election. He also notes that two men came to his door approximately two weeks ago, talked about the WFP, and then asked him to sign a document, which he refused to sign.

Concerning the merits of the proceeding before the Court, first a procedural issue must be addressed. To the extent that leave of court is required to file a counterclaim or [*6]cross-claim in this proceeding, the Court grants Pafundi and Warnock-Graham such leave (see CPLR 402; Ambro v Coveney, 20 NY2d 850 [1967]). The Court notes the absence of any objection by petitioners and the fact that the counterclaims and cross-claims were filed within the time to commence an action on such claims. The Court also notes that to the extent respondents filed counterclaims or cross-claims pursuant to Election Law § 16-110(2), petitioners conceded at oral argument that such claims were timely filed on September 7, 2007. Petitioners' argument is that respondents' counterclaims and cross-claims are claims properly brought under Election Law § 16-102, relating to challenge of a designating petition, and that respondents are attempting to circumvent the requirement to bring such claims pursuant to Election Law§ 16-102, for which it is undisputed the statute of limitations was expired on September 7, 2007.

The essence of the dispute between the parties in this case centers around whether, subsequent to the last date to challenge a designating petition, it is possible for Pafundi to cancel the enrollment of voters, and then have those voters struck as candidates in the primary election, on the basis that they are no longer enrolled in the party (or authorized pursuant to Election Law § 6-120[3]), as required to be a candidate. Petitioners assert that Pafundi's challenge is in fact a challenge to the designating petitions of petitioners, for which the statute of limitations has expired pursuant to Election Law § 16-102. Respondents Pafundi and Warnock-Graham assert that a proceeding was timely commenced pursuant to Election Law § 16-110(2) against petitioners. They further assert that the evidence establishes that Pafundi's cancellation of the enrollment of petitioners was just, and should therefore be upheld by this Court. They next assert that in light of that cancellation of enrollment, this Court should order the Board of Elections to remove petitioners' names from the ballot. The parties acknowledge that this is a case of first impression on the issue of the interplay between Election Law §§ 16-102 and 16-110 and they have not cited any authority directly on point, nor has this Court found any, involving a case where as here, subsequent to the last date to challenge a designating petition, a voter's cancelled enrollment then resulted in that voter being ordered removed by a Court from the ballot in a primary election.

The Court finds that the proper analysis of this case involves consideration of the counterclaims and cross-claims, which are then determinative of the outcome of the petition. Pursuant to Election Law § 16-110, Pafundi followed the required procedures for holding a hearing on the issue of whether petitioners were in sympathy with the principles of the WFP (Election Law § 16-110[2]). The first issue to be considered in this proceeding is whether Pafundi's determination to cancel the enrollment of petitioners was just.

The Court notes that legislation relevant to this case was enacted with the purpose of preventing raids on minor political parties by those who are not in sympathy with their principles (see Zuckman v Donahue, 274 AD 216, 218 [3d Dept 1948], aff'd, 298 NY 627 [1948]).

The present legislative pattern is clearly designed to safeguard the integrity of minor [*7]parties and to prevent raids thereon by those who are out of sympathy with their principles and motives.

. . . . .

Enrollment and attempted seizure of party machinery for the purpose of advancing fortunes of another political party will not be tolerated.

(Zuckman, 274 AD at 218; see also In re Mendelsohn, 197 Misc 993, 995 [Sup Ct Bronx Co 1950] [". . . a voter may not, without limitation, enroll as a member of any political party in which he chooses to enroll"], aff'd, 277 AD 947 [2d Dept 1950], aff'd, 301 NY 670 [1950]; Zuckman v Donahue, 191 Misc 399, 407 [Sup Ct Albany Co 1948] ["There are limits on the right to enroll which do not exist with reference to voting at a general election."]; Werbel v Gernstein, 191 Misc 275, 277 [Sup Ct Kings Co 1948] ["A condition of membership in a political party is the sympathy with its principles and the purpose of fostering and effectuating them."]). The Court also notes that Election Law § 16-110(2) is not limited in scope or purpose to only preventing party raids (see Rivera v Espada, 98 NY2d 422, 428 [2002]).

The Court is also mindful of the rights of petitioners as set forth in their petition and the fact that party enrollment should not be cancelled without sufficient evidence of lack of sympathy with the party's principles, as set forth below.

Election Law § 16-110(2) sets forth the standard for the Court's review of Pafundi's determination that the enrollment of petitioners should be cancelled:

The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon a written complaint by an enrolled member of such party in such county and after a hearing held by him or by a sub-committee appointed by him upon at least two days' notice to the voter, personally or by mail, determine that the voter is not in sympathy with the principles of such party. The Supreme Court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party at least ten days before a primary election, shall direct the enrollment of such voter to be cancelled if it appears from the proceedings before such chairman or sub-committee, and other proofs, if any, presented, that such determination is just.

As set forth above, the court's role is to decide whether the County Committee Chairperson's determination was "just" (Election Law § 16-110[2]; Rivera, 98 NY2d at 428).

This division of responsibility reflects a legislative choice not to involve courts in determining party "principles." Thus, the court's role is to ensure that the County Committee Chair reaches a decision on the basis of sufficient evidence and does not consider inappropriate factors.

(Rivera, 98 NY2d at 428-29).

The Court notes that the determination of whether a voter is in sympathy with the principles of a political party "is an individual and not a group matter, and must be considered as such." (Zuckman, 274 AD at 218). While case law sets some guidelines for [*8]when determinations to cancel enrollment of voters will be found just, it is clear from a review of the case law that the ultimate decision of whether the determination was just must be based upon all the unique factors and circumstances presented in each individual case (id.)

The failure of a voter to appear at the hearing called by the chairperson of the county committee of a party pursuant to Election Law § 16-110(2) does not necessarily constitute sufficient evidence to support a determination that the voter is not in sympathy with the principles of the party (see, e.g., Warren Co. Conservative Party v Girard, 78 Misc 2d 964 [Sup Ct Warren Co 1974]).

When a voter submits an affidavit to the court in a proceeding pursuant to Election Law § 16-110(2), "the Court must accept their declarations at face value, unless there is affirmative proof to the contrary" (Girard, 78 Misc 2d at 965 ["[w]hat constitutes sympathy with or belief in the principles of any political party is something which must be liberally construed. . ."]).

It is the opinion of this Court that where voters have expressed their choice by enrolling in a party, their political philosophy should not be the subject of speculation, and the Court must accept their declarations at face value, unless there is affirmative proof to the contrary.

(Girard, 78 Misc 2d at 965).

Additionally, testifying in court in a proceeding pursuant to Election Law § 16-110(2) can establish prima facie evidence of sympathy with the principles of a party ( see Zuckman, 274 AD at 218 [failure to attend hearing or answer questionnaire is rectified by testifying in court on their own behalf in Election Law § 16-110 proceeding]).

Based upon the statements of petitioner Scott, asserting that he is not in sympathy with the WFP and did not know he was listed as a candidate, the Court finds that the cancellation of the voter enrollment of petitioner Scott by Pafundi was just. In making this finding, the Court also notes that Scott has not submitted any affidavit or made any other personal appearance.

The Court also finds that the affidavits submitted by petitioners Consuello, Fortuin and Coalts, as detailed above, are sufficient to establish that their voter enrollments in the WFP should not be cancelled (see Zuckman, 274 AD at 218; Girard, 78 Misc 2d at 965). The Court takes these affidavits at face value and finds that they constitute sufficient proof to establish that the voter enrollments of these individuals should not be cancelled in light of the averments contained therein.

Regarding petitioners Lengua, Morine, and Rivera, the Court finds that the evidence considered by Pafundi at the September 4, 2007 hearing was not sufficient to warrant her determination that said parties were not in sympathy with the WFP. Other than the fact that Mirch had notarized their designating petitions, along with those of the other petitioners, and that their committees to fill vacancies had the same individuals as other petitioners, there was no proof that Pafundi relied on in finding that these individuals were not in sympathy with the WFP. These two facts are simply not sufficient to find that [*9]Mirch was attempting to conduct a party raid and that these individuals were a part of that process. While Pafundi apparently believed that they must have a connection to Mirch, the proof connecting these individuals to Mirch, and also the proof that Mirch is necessarily unsympathetic to the principles of the WFP was lacking in the record before the Court (cf., Farrell v Morrissey, 32 AD3d 1362 [4th Dept 2006]). Notably, while their lack of appearance at the September 4, 2007 hearing was noted by Pafundi, she also noted that their attorney had provided a notice that they would not be appearing in light of the fact that they were filing a legal proceeding and would be seeking to have the hearing restrained. In light of these facts, the Court does not find that her determination that said parties' voter enrollments in the WFP should be cancelled is just. The Court is required to find that sufficient evidence supported Pafundi's determination (Election Law § 16-110[2]; Rivera, supra) and this Court finds that the mere speculation and conjecture in the record is wholly insufficient and that the facts and circumstances do not support Pafundi's finding with respect to these individuals. The voter enrollments of Lengua, Morine and Rivera are therefore not cancelled.

The Court notes that in Stephen Downs' conversation with petitioner Consuello, as memorialized in the Downs Affidavit, there is a reference that candidates who did not go through interview process were being asked to sign a statement that they would support the goals and platform of the WFP. To the extent that the interview process or signing of a statement is being attempted to be used by respondent Pafundi for party membership purposes, the Court notes that while this may be permissible for party endorsement purposes, it cannot be used as a condition for enrollment. This is akin to requiring an impermissible oath to be on designating petition, which cannot be a requirement pursuant to the Election Law (see Election Law § 6-122).

The next question for the Court to consider is the effect of the cancellation of enrollment, and whether it can have the effect of striking a candidate from the ballot of the primary election. Petitioners suggest that to allow cancellation of a candidate's voter registration this close to the primary election would be permitting an untimely proceeding to strike a designating petition, pursuant to Election Law § 16-102. Respondents Pafundi and Warnock-Graham assert that enrollment of a candidate is a necessary prerequisite in this case in light of the fact that the deadline for obtaining Wilson-Pakula authorization has passed (Election Law § 6-120[3]). Respondent Pafundi argued at oral argument that authority exists for the Board of Elections to take a candidate off a ballot and for this Court to order the Board of Elections to strike a candidate from a ballot, despite the fact that the time for contesting designating petitions has passed. As previously noted, petitioners argue that such result would permit an untimely challenge to a designating petition.

Regarding respondents Pafundi and Warnock-Graham's request to strike petitioners from the ballot or to order the Board of Elections to strike petitioners from the ballot, the Court declines to grant such relief. Respondents Pafundi and Warnock-Graham acknowledge that this would be a case of first impression if the Court were to grant such relief. The [*10]Court notes that New York's Election Law is generally strictly construed and does not permit deviation from the statutory procedures and remedies (see, e.g., Liepshutz v Palmateer, 112 AD2d 1101, 1104 [3d Dept 1985], aff'd, 65 NY2d 965 [1985]; McGoey v Black, 123 Misc 2d 508, 511 [Sup Ct Queens Co 1984], aff'd as modified, 100 AD2d 635 [2d Dept 1984]).

Therefore, while holding that respondent Pafundi's finding that the voter enrollment of petitioner John R. Scott in the WFP was just, this Court will not go beyond this point and will not grant the relief sought by respondents Pafundi and Warnock-Graham. The relief sought is akin to a challenge to a designating petition, for which the statutory deadline has passed, and no authority has been presented to this Court supporting its ability to order a candidate removed from a ballot under the facts and timing of the present proceeding.

Regarding the potential for abuse were this Court to grant the relief requested, the Court also notes that the committee on vacancies could not fill a vacancy created by death or disqualification at this time (see Election Law § 6-152). The Party Chairperson would be able to fill the vacancy (id.).

The Court notes the case of Walpin v Heffernan, which addresses the appropriate sequence and interplay between the Election Law statutes that are at issue in the present case (197 Misc 446 [Sup Ct Bronx Co 1950]). In Walpin, a voter enrollment was struck and then the designating petition was subsequently challenged on that basis. The reverse sequence is not contemplated by the timelines set forth in the Election Law and this is further authority for this Court's finding that the relief requested by respondents Pafundi and Warnock-Graham is not contemplated by the Election Law and therefore cannot be authorized by this Court.

The Court notes that Pafundi and Warnock-Graham took strong steps to protect the integrity of their political party and to prevent invasion by persons perceived to not be in sympathy with the WFP principles, which are two purposes for which legislation is in place to support. However, to the extent that this Court has found the determinations of Pafundi to be just, it cannot authorize the broad relief sought by Pafundi and Warnock-Graham beyond that finding. To allow such other and further relief, in the form of striking a candidate from the ballot, would be patently unfair and unjust. If the legislature had intended for the possibility of such a harsh remedy as a result of an enrollment challenge, subsequent to the last date to challenge a designating petition, they could have so stated.

Lastly, the Court notes that it declines to find that respondents Pafundi and Warnock-Graham engaged in actions rising to the level of conduct prohibited by Election Law §§ 17-102 and 17-152, as asserted by petitioners.

Accordingly, it is

ORDERED that the petition is granted to the extent that challenges to the designation and qualifications of petitioners to appear on the primary election ballot on September 18, 2007 are declared invalid; and it is further [*11]

ORDERED that the petition is denied to the extent that challenges to the enrollment of petitioners are properly considered by this Court pursuant to Election Law 6-110, as set forth above; and it is further

ORDERED that respondent Pafundi and Warnock-Graham's counterclaims and cross-claims are granted in part, to the extent that this Court finds that respondent Pafundi's determination to cancel the enrollment of petitioner John R. Scott was just, and are otherwise denied.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for petitioners, who is directed to enter this Decision/Order without notice and to serve all parties to this proceeding with a copy of this Decision/Order with notice of entry.

Dated:September, 2007

Troy, New York

______________________________________

Henry F. Zwack

Acting Supreme Court Justice