Supreme Court, Suffolk County, April 23, 2021

Vincent Messina, Jr., Sayville, for petitioners.

Steven E. Losquadro, P.C., Rocky Point, for Nick LaLota, respondent.

Lawrence H. Silverman, Commack, for Anita S. Katz, respondent.

Dennis M. Cohen, County Attorney, Hauppauge (Alyssa L. Garrone of counsel), for County of Suffolk, respondent.

Anthony LaPinta, Hauppauge, for Democratic Party.

Harris Beach, PLLC, Uniondale (Thomas J. Garry of counsel), for Kate M. Browning, respondent.

On this motion to annul the candidacy of respondent Kate Browning, it is ordered, adjudged and decreed that the verified CPLR article 78 consolidated petition and complaint dated April 12, 2021, is granted and the determination of the respondents Commissioners LaLota and Katz, constituting the Suffolk County Board of Elections, in accepting the designation of the respondent Ms. Kate Browning as a candidate for the post of County Legislator for the 3rd Legislative District for the special election of May 25, 2021, is hereby annulled. Respondents are directed to remove Ms. Browning's name from any ballots prepared heretofore. It is further ordered, adjudged and decreed that the determination of the respondents Commissioners{**72 Misc 3d at 491} LaLota and Katz, constituting the Suffolk County Board of Elections, in accepting the designation of the respondent Ms. Kate Browning as a candidate for the post of County Legislator for the 3rd Legislative District for the primary election of June 22, 2021, is hereby annulled. It is further ordered, adjudged and decreed that the respondent Board of Elections is prohibited from placing the respondent Ms. Kate M. Browning on the June 22, 2021 Democratic Party primary election ballot for the 3rd Legislative District. Respondents are directed to remove Ms. Browning's name from any designating petitions prepared heretofore; and it is further ordered, adjudged and decreed that the respondent Ms. Kate M. Browning is declared to be ineligible to serve as a Suffolk County Legislator (Election Law § 6-122; Suffolk County Charter, art II, § C2-5 [B]).

This matter pertains to what was originally index Nos. 605822/2021 and 606538/2021. [*2]On April 16, 2021, the court (with the parties' stipulation) consolidated both cases under index No. 605822/2021. A motion and cross motion by the respondents for dismissal under CPLR 3211 (a) (7) was denied. That aspect of the cross motion for dismissal pursuant to CPLR 3211 (a) (10) was also denied. The court, however, exercising its prerogative under CPLR 1001 (b), directed that the Democratic Executive Committee be joined as a party respondent. The court signed an order to show cause directing the inclusion of the Executive Committee which was returnable on April 21, 2021. All parties appeared by counsel on that date and all issues were found to be fully submitted.

The consolidated petition seeks the following relief: an order barring Ms. Browning from standing in the May 25, 2021 special election and the June 22, 2021 Democratic primary for the 3rd Legislative District of Suffolk County. As to the Board of Elections, the petitioners request: (1) a declaration that Ms. Browning's designating petition is invalid; (2) an order directing her removal from the primary election ballot; and (3) an order enjoining the Suffolk County Board of Elections from printing Ms. Browning's name on the primary election ballot. The respondents have filed their answers with objections in point of law.

The gravamen of petitioners' claim is that article II of the Suffolk County Charter, section C2-5 (B) (amended in 1993 by Local Law No. 27-1993 of the County of Suffolk), prohibits a candidate from running for County Legislator if he/she previously served for a total of 12 years in that office (petition ¶ 11 {**72 Misc 3d at 492}[a]). Since, they argue, Ms. Browning falls within that category, she is precluded from seeking that office again. The respondents contend that the aforementioned statute permits her candidacy.

Election Law § 6-122 provides: "A person shall not be designated or nominated for a public office or party position who . . . (2) is ineligible to be elected to such office or position."

In turn, Suffolk County Charter, article II, § C2-5 (B) states in relevant part: "No person shall serve as a County Legislator for more than 12 consecutive years." The interpretation of this part of the County Charter is the subject of this opinion.

The verified pleading alleges that the respondent Ms. Browning held office as a Legislator for 12 years. Mr. Silverman points out that the petition does not say "consecutive" years but in the court's decision of April 16, 2021, denying the cross motion to dismiss, the court found that the supporting documentation provided by petitioners remedied this omission under the rule in Carlson v American Intl. Group, Inc. (30 NY3d 288, 298 [2017]).

Prior to its analysis of the arguments, statutes and case law, the court wishes to thank petitioners' and respondents' counsel for their exceptional advocacy on behalf of their respective clients, in the best traditions of the bar.

It must be noted that the jurisdiction of the court to hear this case is unchallenged (Matter of Hoerger v Spota, 109 AD3d 564, 565 [2d Dept 2013], affd 21 NY3d 549 [2013]). Likewise, the propriety of the County's enactment of the term limit statute and its power to promulgate such a law is not questioned at this juncture (Matter of Roth v Cuevas, 158 Misc 2d 238, 248 [Sup Ct, NY County 1993], affd 197 AD2d 369 [1st Dept 1993], affd 82 NY2d 791 [1993]; see Matter of Haskell v Pattison, 2001 NY Slip Op 40134[U], *1 [Sup Ct, Rensselaer County 2001]).

In his brief contending that Ms. Browning is precluded from running for the County Legislature, Mr. Messina asks the court to consider the guidance found in McKinney's Consolidated Laws of NY, Book 1, Statutes §§ 92 (a), at 176, and 120, at 242, which are discussed in Matter of Tutunjian v Conroy (55 AD3d 1128 [3d Dept 2008]).

Based on the language in the referendum, other documentation submitted and the law itself, petitioners posit that the manifest intent of Charter § C2-5 (B) is that once a Legislator {**72 Misc 3d at 493}has served 12 consecutive years, they are barred for life from that office.

In addition to the charter itself, petitioners have submitted documentary proof, including the November 2, 1993 referendum ballot which contained the following description of the law before us. It states:

"YES                            NO

"BALLOT PROPOSAL #6

"COUNTY PROPOSITION #3

"Shall Resolution No. 580-1993, Adopting a Charter Law to Restrict the Influence of Special Interests by Limiting Terms of Office of County Legislators and County-wide Elected Officials to Twelve (12) Successive Years, Be Approved?" (NY St Cts Elec Filing [NYSCEF] Doc No. 46, petitioners' affirmation, exhibit A, in Matter of Doyle [Browning], Sup Ct, Suffolk County, index No. 606538/2021.)

We agree with respondents' counsel that the use of the term "successive" as opposed to "consecutive" in the referendum for Local Law 27-1993 is a difference without a linguistic distinction. In any event, if there was a qualitative discrepancy between the referendum and ultimate county charter revision, it is beyond recall at this point (see Election Law § 16-104 [2]; Matter of Marcoccia v Suffolk County Bd. of Elections, 309 AD2d 958, 959 [2d Dept 2003]; Matter of Association for Better Long Is. v County of Suffolk, 243 AD2d 560, 561 [2d Dept 1997]).

The respondents submit a contradictory view of Charter § C2-5 (B) and the other evidence before the court.

In his memorandum of law, Mr. Garry argues: "Petitioners' proposed interpretation of the statutory language—a twelve-year limit on years in office—would eliminate any meaning from the word 'consecutive' from the statutory language. This violates the well-established rule of statutory construction . . . to avoid a construction that renders a word or phrase superfluous."

In support of this position, he asks the court to review term limit laws from other municipalities in Suffolk County.

The Town of Brookhaven's companion statute to the county's term limit law is Town Code § 20-62 (B) which provides that a councilperson "may serve up to three four-year terms regardless of whether said terms are served consecutively or nonconsecutively."

{**72 Misc 3d at 494}The Islip Town Code states: "No member of the Town Board shall serve more than a total of three terms of office, regardless of whether those terms are served consecutively" (Town Code § 49A-2).

In the Town of Southampton, Town Code § 64-2 describes that "[a]ny person who has served as a Councilman or a Councilwoman for the Town of Southampton for a total of eight years shall be ineligible to serve as a Councilman or -woman for any future term."

We find reliance on the term limit statutes of these other local governments to be chimerical. The fact that these ordinances set forth a prohibition at great length does not preclude a shorter statute from having the same effect.

In addition to these comparable statutes, respondents rely on case law which will be discussed ad seriatim.

The respondents cite to Citizens for Legislative Choice v Miller (144 F3d 916, 918 [6th Cir 1998]) which interpreted Michigan Constitution, article 4, § 54. This section reads: "No person shall be elected to the office of state representative more than three times." The court held that notwithstanding the absence of such language, "[s]ection 54 imposes 'lifetime' term limits as opposed to 'consecutive' term limits." (Id. at 918.) The court then stated that "[l]ifetime term limits forever bar officials from serving more than a set number of terms, whereas consecutive term limits allow them to serve an indefinite number of terms so long as they periodically leave office." (Id.) This court does not discount this statement simply because it is from another jurisdiction. Persuasive authority can guide this court regardless of its place of origin so long as the relied upon decision demonstrates either profound reasoning or cites to authority so that this court may feel its logic compels emulation. In the Miller case, however, the "lifetime"-"consecutive" dichotomy of the court appears without citation, reference or discussion. Since it appears to be at a variance with this court's understanding of statutory construction, we respectfully decline to follow this aspect of Judge Siler's otherwise eloquent and edifying opinion.

Mr. Garry also cites to the case of Vandersteel v Marcus, an unreported decision from the Circuit Court of the 15th Judicial Circuit, Palm Beach County, Florida (June 22, 2020, Kelley, J., case No. 2020CA005748). A copy of the decision was annexed to the responding papers as exhibit N (NYSCEF Doc No. 67 in Matter of Doyle [Browning], Sup Ct, Suffolk County, index No.{**72 Misc 3d at 495} 606538/2021). The specific statutory language addressed by that court was: "No person may appear on the ballot for reelection to the office of commissioner, if by the end of the current term in office, the person will have served (or, but for resignation would have served) as a county commissioner for eight (8) consecutive years." (Palm Beach County Charter, art II, § 2.2.) The plaintiff in that case argued that the respondent Marcus had served eight years and was therefore prevented from running for the same office. The court held that the aforementioned charter provision only prevented a third consecutive term and did not stand as an obstacle for a non-sequential candidacy. To hold otherwise, reasoned the court, "would render the term 'consecutive' meaningless and mere surplusage." (NYSCEF Doc No. 67 at 5.) Although this court acknowledges the Vandersteel holding, we decline to follow it. The statutory language is different from the matter sub judice and our Floridian colleague did not utilize the case law and statutes which guide us herein.

Mr. Silverman brings the court's attention to the holding in Conde v City of San Diego (134 Cal App 4th 346, 350, 36 Cal Rptr 3d 54, 56 [Ct App, 4th Dist, Div 1, 2005]) which interpreted a San Diego Charter provision that stated:

"Notwithstanding any other provision of this Charter and commencing with elections held in 1992, no person shall serve more than two consecutive four-year terms as a Council member from any particular district. If for any reason a person serves a partial term as Councilmember from a particular district in excess of two (2) years, that partial term shall be considered a full term for purposes of this term limit provision." (134 Cal App 4th at 350, 36 Cal Rptr 3d at 56.)

The California court held that this language did not serve to prevent the candidacy of a person who had held two previous consecutive terms because there had been a hiatus between their last term and the new vacancy of office (134 Cal App 4th at 350-351, 36 Cal Rptr 3d at 56-57).

This court finds reliance on the Conde decision to be misplaced. In contrast to the matter at hand, the plaintiff in Conde specifically conceded that the San Diego Charter did not impose a lifetime ban, thus removing that issue from discussion. Moreover, the holding in Conde was distinguished in Arntz v Superior Ct. (187 Cal App 4th 1082, 1092, 114 Cal Rptr 3d 561, 568 [Ct App, 1st Dist, Div 2, 2010]) wherein that court{**72 Misc 3d at 496} reviewed the term limits imposed by the San Francisco Charter. The operative language was:

"No person elected or appointed as a Supervisor may serve as such for more than two successive four-year terms. Any person appointed to the office of Supervisor to complete in excess of two years of a four-year term shall be deemed, for the purpose of this section, to have served one full term. No person having served two successive four-year terms may serve as a Supervisor, either by election or appointment, until at least four years after the expiration of the second successive term in office." (187 Cal App 4th at 1086, 114 Cal Rptr 3d at 564.)

The Arntz court, therefore, was presented with a statute that specifically allowed the return of a former office holder.

We also draw counsel's attention to the holding in Dear v Board of Elections in City of New York (2003 WL 22077679, *1, 2003 US Dist LEXIS 15460, *1 [ED NY, Aug. 25, 2003, No. 03-CV-3739 (ERK), Korman, Ch. J.]). In Dear, the term limit at issue (NY City Charter § 1138) barred from elected positions those who had held office for more than two consecutive terms. The ordinance then went on, however, to permit a previously excluded candidate to run and hold office once "one full term or more has elapsed." (2003 WL 22077679, *1, 2003 US Dist LEXIS 15460, *1.)

This court observes that both the Arntz and Dear courts were presented with term limit laws that contained permissive language detailing how an elected official who has reached the limits of the years and manner of service may once again run for office.

The Suffolk County law is conspicuous by the absence of this language. Indeed, to accept the respondents' interpretation would require the court to hold that the county law specifically allows non-sequential terms of office when the statute is silent on that subject.

This court also found the holding in Matter of Lavell v Jaeger (56 Misc 3d 1216[A], 2017 NY Slip Op 51043[U] [Sup Ct, Erie County 2017]) to be instructive. In Lavell, the court was obliged to apply a statute that is similar to Suffolk County's. The statute in that instance was a town ordinance which read: "§ 55-3 Term limits established: No elective public officer of the Town of Amherst shall have more than two consecutive terms of four years each in the same public office." (Lavell, 2017 NY{**72 Misc 3d at 497} Slip Op 51043[U], *2.) The court held that the ordinance was subject to the following interpretation:

"It appears from the plain text of the statute that this provision aims to prevent an elected official from serving more than two terms in the same office. For example, this law would prevent Respondent-Candidate from running for a third term as Town Clerk, the office she currently holds." (Id. at *4-5.)

The statute in Lavell is more analogous to the instant case than the ordinances and charters brought before the court by the respondents.

In addition to the statutes of various municipalities located both within and without our state, as well as the case law discussed in this opinion, petitioners and respondents submit an affirmation, an affidavit and a legislative memorandum from Mr. Paul Sabatino, II, the former counsel to the Suffolk County Legislature. Both sides in this case have attempted to persuade the court that Mr. Sabatino's statements favor their cause.

In his affirmation dated March 31, 2021, and affidavit dated April 15, 2021, Mr. Sabatino relates that the intent of the legislature was to impose a lifetime ban once 12 years of consecutive service had been obtained. Respondents, however, point to older documents that he authored.

The rules of the Suffolk County Legislature require that prior to the introduction of legislation, the counsel to the legislature must provide "a memorandum as to form and legal significance of the proposed Local Law." (See Suffolk County Legislature Resolution No. 2-2020, Rule 20.) This is known as a rule 28 memorandum of law (Suffolk County Charter, art II, § C2-18).

In 1993, at the time the legislature was contemplating enacting a term limit law, three proposed bills were brought forward, differing in the offices to be encompassed by the new statute. They were designated IR1458-93, IR1460-93 and IR1621-93.

In a rule 28 memorandum regarding IR1460-93 dated May 20, 1993, provided by respondents, Mr. Sabatino advised the legislature:

"It should be noted that a Legislator could serve twelve (12) consecutive years, not serve for a year or more as a County Legislator, and then be{**72 Misc 3d at 498} reelected and serve another twelve (12) consecutive years. The only caveat is that there be an interruption in County service. This provision tends to be more equitable than lifetime bans on legislative service once the operative threshold period is hit."

This passage is also included in the rule 28 memorandum attached to IR1621-93. Interestingly, this language is not found in the rule 28 memorandum attached to the bill that ultimately became the law in question—IR1458-93. The respondents' position is that the court should use this memorandum to divine the legislative intent behind the existing statute. The petitioners contend that the omission of this language from the specific bill renders the memorandum a nullity.

Ultimately, the court is cutting the Gordian knot on the differing statements attributed to Mr. Sabatino by not considering any of them. This is not a slight directed at a respected attorney who prepared the documents 27 years ago as well as the affirmation and affidavit of more recent vintage. It is simply the recognition of the guiding principle which obliges us to look at the language of the statute and no further, unless necessary. As set forth in Matter of Daniel C. (99 AD2d 35, 41 [2d Dept1984], affd 63 NY2d 927 [1984]):

"Regardless of the contents of any memorandum written by a drafter of legislation, the legislation stands for what its words manifest and not the inner thoughts of a draftsman (see People v Graham, 55 NY2d 144, 151; McKinney's Cons Laws of NY, Book 1, Statutes, § 76). This is especially true because ' "there is no necessary correlation between what the draftsman of the text of a bill understands it to mean and what members of the enacting legislature understand" ' (People v Graham, supra, p 151, citing 2A Sutherland, Statutory Construction [4th ed], §§ 48.09, 48.12)."

It is beyond cavil that when interpreting a statute, it's incumbent on the court to implement the intent of the legislature (People v Badji, 36 NY3d 393 [2021]; see State of New York v Patricia II., 6 NY3d 160, 162 [2006]; Matter of Hummel, 20 Misc 3d 879, 880-881 [Sup Ct, Albany County 2008]).

"[T]he legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear" (Riley v County of Broome, 95 NY2d 455, 463 [2000] [citation and internal quotation marks omitted]; People v Badji at 399). To assist in this regard, the court turns to the entirety of the charter provision under review.{**72 Misc 3d at 499}

Suffolk County Charter, article II, § C2-5 (B) is also designated Local Law No. 27-1993. In that [*5]portion of the law which reads "Section 1. Legislative Intent" it is stated:

"This Legislature hereby finds and determines that public dissatisfaction with elected officials holding office for extended periods of time has reached a fever pitch because of a public perception that elected officials are able to entrench themselves in public office at the taxpayers' expense.

"This Legislature further finds and determines that the public believes that such elected officials become insulated and isolated from the needs and demands of their constituents, as recently expressed in referendums in the States of Oklahoma, Colorado, and California and the cities of San Antonio, Texas, Jacksonville, Florida, Wichita, Kansas, Kansas City, Missouri, Cincinnati, Ohio, and Houston, Texas, by their ability to use the perquisites of office in running for reelection.

"This Legislature further finds and determines that referenda in fourteen (14) additional states ranging from Florida, Nebraska, Ohio, Arizona, Missouri, Michigan, North Dakota, Arkansas, California, Montana, Oregon, South Dakota, and Washington, to Wyoming were approved on November 3, 1992, for the purpose of imposing twelve- (12)-year term limits on members of the United States Congress, each by an overwhelming preponderance of the popular vote.

"This Legislature also finds and determines that special interests are able to wield greater influence on the governmental process when there is no limit on the terms of office of elected officials because incentives are created for everyone to perpetuate the status quo; special relationships inimical to the interests of the public may develop; and elected officials become insulated from the true needs and wishes of the public.

"Therefore, the purpose of this law is to prospectively impose a twelve- (12)-year limit on consecutive service by Suffolk County Legislators and a twelve- (12)-year limit on consecutive service by elected County-wide officials, all subject to public referendum, and, thus, reform County government by reducing or diminishing the influence of special{**72 Misc 3d at 500} interests on the governmental process."

This language fails to provide the succor that the respondents desire. The concerns expressed in section 1 of Local Law No. 27-1993 are not served by adopting the respondents' interpretation of the term limit law and allowing an elected official who has served the maximum years to then return to their former public office after a brief absence.

After considering the sage counsel of petitioners' and respondents' attorneys, however, this court finds that it is unnecessary to utilize anything more than the words found in section 2 of Local Law No. 27-1993 in making a determination on the merits of the petition and answers.

In the case of Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y. (86 NY2d 198 [1995]), Judge Titone, of happy memory, wrote:

"Where the terms of a statute are clear and unambiguous, 'the court should construe it so as to give effect to the plain meaning of the words used' (Patrolmen's Benevolent Assn. of City of New York, 41 NY2d 205, 208). Resort to legislative history will be countenanced only where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 674-675)." (Id. at 204.)

The court is under a duty to give as much effect as possible to all the words in the statute and read them in harmony with each other (Loehr v New York State Unified Ct. Sys., 150 AD3d 716, 720 [2d Dept 2017]). Applying this standard, the court cannot focus on [*6]the single word "consecutive" to the exclusion of the others in the law, lest we offend the maxim noscitur a sociis ("a word is known by the company it keeps"—Statutes § 239 [a]; Gallina v Wilkinson, 988 F3d 137, 146 [2d Cir 2021]). This rule cautions us "to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words" (Gustafson v Alloyd Co., 513 US 561, 575 [1995]).

We return finally to the words of the county charter that are subject to review: "No person shall serve as a County Legislator for more than 12 consecutive years." To endorse the respondents' position would essentially nullify that portion of the charter which states: "No person shall serve . . . more than . . . ."

{**72 Misc 3d at 501}The only way in which to balance these terms is to view "consecutive" as a word of limitation and not as an invitation to run for office in the future. As demonstrated in Arntz and Dear, it is the legislature's prerogative to craft such language, not the court.

Accordingly, the petition will be granted.