Ata term of Supreme Court held in and for the County of Jefferson, in the City of Watertown, New York on the 29" day of September, 2017 PRESENT: HONORABLE JAMES P. McCLUSKY Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON In the Matter of the Application of RENE RILEY, Citizen Objector, Petitioner, MEMORANDUM -vs- JANTHONY M. NEDDO, Candidate for Watertown AND: ICity Court Judge upon Independent ORDER Nominating Petitions for the Law and Order IParty filed August 16, 2017, and JUDE R. SEYMOUR and BABETTE M. HALL Index No. 2017-1753 Commissioners of and constituting |The Jefferson County Board of Elections RJINO. 22-17-0740 Respondents, For an Order pursuant to Sections, 16-100, 16-102 land 16-104(1) of the Election Law, declaring void id independent nominating petitions, and respondent [Board of Elections’ August 24, 2017 }etermination regarding said independent }ominating petitions. Ms. Riley has brought a petition seeking to overturn the decision of the Jefferson) County Board of Elections concerning Anthony M. Neddo’s petition to appear on the Lay land Order Party Line in the upcoming election for City of Watertown Judge. Her petition| lis based on several theories. The first theory is that Jefferson County Election Commissioner Jude Seymou Jassed petitions for Mr. Neddo and also sat in deciding that Mr. Neddo’s petitions were|lid. This Court could not find any rule or case which indicates that this is improper. At jany rate, this proceeding resolves that issue as the Court reviews the matter de novo. The second issue is that the Jefferson County Board of Elections scheduled and lheld a hearing without giving notice to Ms. Riley (or Mr. Neddo). There is no statutory| lequirement for a hearing (see, Election Law § 6-154). The question of whether Mr. Neddo ould pass petitions and the validity of signatures, which were the objections at issue! before the Board, could be decided with reference to documents on file with the Board [The issue of fraud are outside the purview of the Board of Elections and must be| laddressed by Supreme Court. Additionally, while petitioner may not have had an pportunity to make an oral or written appearance before the Board, she has a statutory| process for judicial review which she, in fact, took advantage of. Meader v. Barasch, 133A.D.2d925. As the next issue Ms. Riley claims 117 signatures should be invalidated for various reasons - mainly that the signator had previously signed another petition. Mr. Neddo does not agree that these signatures should be voided. All parties do agree that if this portion the petition is granted, Mr. Neddo would still have 293 valid signatures and the petitions jould be valid. The next issue raised by Ms. Riley is that of the 390 signatures Mr. Neddo had {collected on his Law and Order Party petitions, some were also personally collected by him jon the Republican petitions he passed. The Court will note that he collected 321 ignatures on the Republican line. Ms. Riley initially alleged that 11 signatures were fluplicate signatures obtained by Mr. Neddo and the Court should dismiss the petitions on the grounds that as such they either cause the entire process to be permeated with fraud r that the candidate participated in the fraud. Ms. Riley has the burden to prove the fraud. Ms. Riley was given an opportunity to amend her petition to name the 11 individuals in 2lquestion. The amended petition decreases the number of claimed duplicates to 10. In Mr. Neddo’'s answer he demonstrated that of those 10 signatures someone other than himself btained 9 of them on his Republican petitions. Additionally, the answer claims that two lof those 9 signatures are not duplicate signatures and represent two separate and distinct voters in the same household. Thus the Court is left with one signature that Mr. Neddo| btained on the Republican Party line that he also obtained on the Law and Order Party| ine, The Court can not fathom how this can be considered fraud. (Even if it was the |eleven signatures petitioner first alleged as opposed the one signature that turned out to| lbe a duplicate). The Court will frst point out the plain language of Election Law 6-138 does| jnot label this as fraud. The law states “The name of a person signing such a petition for an election for which voters are required to be registered shall not be counted if the name of a person who has signed such a petition appears upon another valid land effective petition designating or nominating the same or a different person for |the same office.” It is clear the legislature anticipated people signing more than one petition and in such a case the second signature simply would not be counted. Fraud is deceiving or misrepresenting. No evidence has been presented that any {deceit or misrepresentation took place, no evidence that this was anything but an honest Imistake. A mistake that results in the second signature not being counted as required by [Election Law 6-138, It was alleged by Ms. Riley that “it seems inconceivable someone with espondent Neddo's background, training and education...” would not know this was limproper. Itis the Court's experience that many individuals just sign the petition presented| lo be polite, to get the person on their way, or because they knew they signed a petition but can’t remember if it was this one or another. In addition the person who collects over [700 signatures probably went to over 2000 homes. To expect one to remember who isigned 8 weeks earlier, in this situation, is not conceivable. 3Fraud, in addition to the elements of deceiving and or misrepresenting, require: feliance and harm, or a benefit. Her opponent obtaining 11 extra signatures does no! reate a harm to Judge Palermo or the nominating process or confer a benefit for Mr. Neddo. He had 179 extra signatures (discounting the single duplicate). The harm would) jcome from an improper designating petition being allowed to stand not from an otherwise, \valid designating petition having 11 extra invalid signatures. The Court will not ascribe this as fraud, and likewise, the Court will not assume thal |Ms. Riley or her attorney committed fraud by alleging that 10 signatures were fraudulent! jcollected by Mr. Neddo when in fact he did not even collect 9 of these signatures. Ever] hough one could argue an attorney with the background, training and education as Ms. RRiley’s should have known better and not made this argument to the Court. The last theory is the fact that Mr. Neddo passed petitions for the Law and Order Party line after signing a petition for himself to run on the Republican Party line. If the| petitions he witnessed are disallowed he would not have sufficient signatures for the La and Order petitions to be valid. Itis undisputed that Election Law 6-138 invalidates a signature if the signatory had) pre sly signed another petition. In addition Election Law 6-140 used to require that to itness an independent petition you had to be eligible to sign the petition. As a result of Feading those two sections together there is case law that says if you sign a Republican petition you can not carry an independent petition for the same position. In 2000 a federal [court decision ruled it was unconstitutional to geographically restrict who may carry al lesignating petition, Lermon v NYC BOE, 232 F.3d 135. In 2009 the legislature changed) lElection Law 6-140, pursuant to the legislative notes it was done to comply with the] JLermen case, Election Law 6-140(1) now reads a witness fo an independent designating 4petition must state “I am a duly qualified voter of the State of New York’. If the plain janguage of the law is clear the Court is not allowed to and is not required to look at] legislative intent. In this case the language of the lawis very clear. The prior case law that felied on the old Election Law 6-140(1 is no longer controlling, Alll those cases interpreting] he statute that has now been changed are meaningless. The petitioner is asking the| Court to read the fact that Election Law 6-140(2), which is the rule for a notary witnessing] lsignatures, was not changed and still requires a notary to be otherwise qualified to sign the| petition, and the cases holding it is constitutional to restrict prior signers from carrying| petitions, requires me to assume the legislature only intended to change the residency] fequirement in Election Law 6-140. But the legislature is free to make the laws as they see| it, and the Court's role is not to legislate or to try to guess what the legislature would do, Jor figure out why they have different rules, A Court can not assume the legislature, in| ying to comply with the Lermon case did not also want to remove the other restrictions, If they did not want to remove other restrictions they could have and should have limited the language they used Petitioner argued that the Court can not rely on the fact some senate staffer and the |Courtin DiPietro v NYS BOE 30 Misc. 3d 449, said that the change in Election Law 6-140] how means “itis clear that the only requirement now for a witness to a nominating petition| Is to b ea duly qualified voter of the state”. The Court is not relying on statements ot thers. The Court is relying on it's interpretation of the law as it now exists. The Cour nds the words in Election Law 6-140 to be clear. “Where words of a statute are free| rom ambiguity and express plainly, clearly and distinctly the legislative intent, resort may) jnot be had to other means of interpretation." DiPietro, supra, citing McKinney's Cons| lLaws of NY, Book 1, Statutes §76. The words of Election Law 6-140 only requires the| itness to aver that they are a registered voter in New York State. The Court repeatedl lasked petitioner to explain what section of law prevents Mr. Neddo from signing his own| Republican petition and then later passing an the Law and Order party petition. Petitioner 5ited Rue v. Hill, 287 A.D.2d 781. That case came after the Courts had ruled that the part] f Election Law 6-140 which restricted by geography who could pass a designating] petition, as unconstitutional. The Rue Court upheld the standard that one could not sign kz prior valid petition and then carry a petition for another candidate. The Rue Court held (o rule otherwise “ignores the plain language of Election Law §§ 6-140 and 6-138.” Clearly] hat Court relied on Election Law 6-140, which has now been changed so this Court can} Inot rely on the Rue decision Itis clear from the reading of the statutes and relevant case law that Mr. Neddo was| free to carry his Law and Order Party petitions after he signed his own Republican Party| petition. Itis therefore ORDERED that the petition is dismissed and the Jefferson County Board of [Elections shall place Anthony M. Neddo on the November ballot under the Law and Order| Party designation for the position of Watertown City Court Judge. bated: September27_, 2017 Watertown, New York ENTER 1 JAMES, oa Suprefne Court Justice