*1 114, 689] [821 NE2d NYS2d A. as Commissioner Matter Graziano, John and Member of the Board Albany County Albany, Appellant, Elections Albany al., et Respondents. 13, 2004;
Argued October decided November
477 OF COUNSEL POINTS (Paul DerOhannesian, DerOhanne- Albany & DerOhannesian of laws County Albany’s I. counsel), II of for appellant. sian of representation” the “equal and actions violate (Matter § 3-300. and Election Law York Constitution the New of Cohen, v 275 NY Kern, 375; Matter v 280 NY Fugazy of O’Keeffe County Employees’ v Chautauqua 550; County Chautauqua of Assn., AD2d Serv. Employees’ Local 807 Civ. Unit 6300 of O’Rourke, 402; AD2d Elections v 1052; Matter Board of 712, AD2d Meisser, 2d 67 Misc Matter Starr v 748.) to chal has Commissioner Graziano II. York State of the New violation Albany’s lenge (Matter Dairylea Law 3-300. and Election Constitution Plastics Indus. v 6; Society Walkley, v 38 NY2d Coop, York Assn. Conve 761; Matter New 77 NY2d Suffolk, Pataki, Urbach, 96 NY2d 338; 230 AD2d Silver nience Stores v *3 Carr, York, Baker v 369 417; US 532; Clinton v New City of 361.) III. The Appel 186; v Boryszewski Brydges, US (Mat acts. and ministerial discretionary late Division confused Colascione, 153 Cohen, 446; v Gagliardo v 262 NY ter Wicksel 853; Mat 84 AD2d 710; Tutunjian, v of Bridgham AD2d Matter 1048.) Blackwell, AD2d ter Lenihan I. for Albany, respondents. Lynch, County Attorney, Michael C. for lack dismissed the properly petition The § and 3-300. § Election Law 3-212 accord with “hiring subject The Board of Elections to the II. must personnel freeze” and thus the Board’s appointments Fill Committee to Vacancies. County preapproved by THE OPINION OF COURT J. Graffeo, commissioner election single is whether appeal issue allegedly impair actions that bring challenge suit
may in the major political parties the equal representation conclude that of elections. We of a local board staffing and statu- in the constitutional implicit such a claim is pursue on local partisan representation of balanced tory requirement of elections. boards com- consists two Board of Elections County
The Albany (see one from each of [2]), Election Law 3-200 missioners Graziano, John Petitioner major political parties. declara- combined commissioner, commenced this Republican contest- 78 proceeding and CPLR article action tory judgment ing County Albany relating actions to Board staff- funding. sought judgment declaring Petitioner enjoyed independent appoint the Board discretion both to spend appropriation dismiss staff and to funds within its statutory obligations. sought furtherance of its He also an order enjoining County interfering appointments. with Board Michael Monescalchi, the Democratic commissioner, did not au- litigation, join thorize the nor did he the suit. petition allegations raising contains two distinct claims. alleges County applied hiring
Petitioner that the had freeze in impaired a manner that Board functions and had failed to au- spending training employees thorize to obtain for Board that he proper functioning claimed was essential to the of the Board. In delayed addition, asserted that the had interfered with Board decisions a manner that resulted staffing multiple imbalance in on the Board on occa- two-year period sions over a party. to the detriment of his response petition, to the moved to dismiss the proceeding relying (2), requires on Election Law 3-212 which supported by that all actions of local boards of elections be “a County argued vote of the commissioners.” The that, Albany County’s as a commissioner on two-commissioner authority Elections, Board of lacked the supported by majority lawsuit was not vote of the Board.
Supreme provid- Court denied the motion to dismiss. Without *4 ing County opportunity Supreme an answer, to Court ad- determining enjoyed dressed the merits, the Board complete authority appoint personnel to and that the principally imposition actions, freeze, a had improperly authority. undermined Board Appellate judgment
The Division reversed the and dismissed petition, finding that as a sole commissioner of a two- elections, commissioner board of could not modify judgment by claim. We of the reinstating petitioner’s part remitting claim in and this matter Supreme proceedings. to Court for further County’s challenge petitioner’s ability bring
The to suit capacity standing. “Capacity raises the related issues of conceptually sue a with, is threshold matter allied but distinct question standing. general capacity from, the As a matter,
479 bring grievance power appear litigant’s its concerns before [citation and internal court” (Silver quotation v Pataki, marks 96 omitted]). NY2d 532, The issue 537 [2001] brought by governmental capacity entities often suits arises (see e.g. Community Borough v Schaffer, Bd. 7 Manhattan [1994]). “Being statute, such 148 artificial creatures NY2d right an inherent nor a common-law entities neither all, if exists at must be derived sue, sue. Rather their it enabling legislation other or concrete from the relevant some (id. 155-156). may statutory predicate” Capacity at to sue be may granted legislation expressly enabling inferred or it be entity’s statutory responsibili- or review of the functions ties.
Standing party “the a determination of whether seek- involves sufficiently cognizable ing so has a stake the outcome relief traditionally capable judicial cast[ ] dispute in a as to form (id. [internal quotation at 155 marks and citations resolution” omitted]). designed two-part inquiry is party bringing proper suit is a determine whether who request adjudication dispute, as follows: ‘injury plaintiff “First, fact,’ mean must show plaintiff by actually will be harmed chal implies, lenged . . . action. As the term itself conjectural. Second, more than must be injury plaintiff fall asserts must within zone of sought promoted interests or or concerns statutory provision protected under which (New agency York Assn. has acted” State Novello, Nurse Anesthetists [2004] [citations omitted]). authority standing, capacity lacks
Without both sue. dispute case, that the Board
In this did governmental entity, to commence Elections, has the argued petitioner—a litigation. election Rather, it authority 3- Election Law such commissioner—lacked require “[a]ll requires shall actions of the board prescribed for such law vote of the commissioners attempt petition as an therefore viewed the board.” *5 requisite of the vote to act on behalf of the Board absent other election commissioner. capacity petitioner agree lacked
We with County’s predicated pursue part of his claim alleged interference with Board functions as a whole. Petitioner County’s imposition that the of a freeze and its refusal to expenditure training impaired authorize the of funds for ability properly prepare upcoming Board staff to for elec- aspect functioning tions. This of the claim addressed the broad of the A affecting Board. lawsuit that raises concerns the staff political parties requiring approval both is an “action” of a § (2), of the commissioners under Election 3-212 Law in this case both and the Democratic commissioner. approval, petitioner capacity Absent such lacked those complaints against County. petitioner’s
The same is not true of other claim—that actions resulted intermittent imbalance on Albany County implicates Board of Elections. This assertion § New York Constitution, II, 8, article which mandates that all affecting laws “shall administration of boards of elections equal representation political parties secure of the two which highest highest . . . cast the and the next number of votes.” similarly requires “equal representation Law 3-300 major political parties” of the requirement on boards of elections. The bipartisanship on local boards of elections is important component process purpose of our democratic for its is to ensure fair elections. appointed by county
Election commissioners are legislative body party based on certificates of recommendation secretary filed the chairman or of the committee of (Election 3-204). appropriate political party Law Thus, statutory inherent in the scheme that each repre election commissioner be chosen his or her sent its interests on the board of elections. As an individual performs election commissioner, therefore statutory distinct the functions—he assists his cocommissioner in safeguards equal administration of the Board he representation rights party. fulfilling of When the latter petitioner may challenge function, we conclude that act alone to County. of the actions Petitioner’s to sue to grounded language vindicate interests in of the petitioner’s Constitution and the Election Law is inherent unique guardian rights role as of his and must be implied statutory requirement from the constitutional and equal representation. Recognition of such a ensures that attempts disrupt required the delicate balance for the fair judicial administration of elections are not insulated from review. *6 (2)’s £<[a]ll of that actions Law 3-212
Election majority require require not a dif vote” does the board shall statutory equal represen ferent result. The constitutional encourages application guarantee the of even-handed tation bipartisan main is not Election Law and when this balance injury public concrete is interest is affected. But a tained, polit of elections a whole—it is not suffered board injury. Thus, actionable when ical that has sustained an representation equal on claim commissioner files a to assure political party, Law 3-212 is behalf of his or her implicated political of the initiation imbalance simply requires not board action that vote. lawsuit contrary dissent, conclude, We also that standing alleged pursue in fact sufficient to confer objection petitioner’s author his claim. Because the ity bring pre-answer dismiss, made in a motion to suit was allegations petitioner’s truth afford we must assume the petitioner of (see every favorable inference 511 W. benefit Realty Corp. Co., 151- 232nd Owners 98 NY2d Jennifer [2002]). cogniz Applying petition standard, this states a County’s actions—particularly repeated claim able delays that authorizing requests in without reasonable basis— unequal political representation in resulted Board multiple two-year period. over a occasions asserting delayed generally that
In addition to had appointments political approving causing a imbalance in Board staffing, petitioner specific pattern “delay, detailed a interfer- rejection” resulting appointments, in some ence Board positions being up in to five months. cases left vacant for comparison particular of the dates that Petitioner charted County eventually positions against were the dates the vacated illustrating payroll, approved appointees new on the that vacan- frequently persisted periods ranging five for one to cies pairs, in cannot Since did not occur we months. the vacancies presume Republican every position was vacated time a vacancy staff. there was a simultaneous the Democratic petition alleges prolonged Rather, vacancies seg- political periods the two resulted imbalance between employees. Petitioner, course, has no stand- ments of Board ing complain political the Democratic suffered disadvantage party—but he contest does may party. suf- also have That the other his own periods unequal representation not rob fered does his County unreasonably delayed approving hiring requests the detriment party. alleged
Petitioner periods imbalance were result of intentional not a failure of delay, the Board to find suitable manner. For employees timely example, petitioner noted that departed where one on December employee *7 5, 2002, the Board had selected another—Jessica Gaul—to start the However, next the did day. join not allow Gaul to the 12, 2003, until payroll the February delaying appointment for two months. Petitioner stated that was a Gaul Republican and asserted this of delay that instance caused imbal- political ance in Board the staffing period position the remained during vacant. This indicates that the example were short- Republicans staffed for In sum, two months. his to assuming be allegations true, petitioner has alleged fact his that in kind different or from that degree suffered the Board or the public large. at
As we of claim, have affirmed the dismissal of part petitioner’s it is evident that we the that agree with dissent’s conclusion some of did petitioner’s allegations not involve imbal- political ance and therefore were insufficient his claim support against the However, County. unequal representation allegations detailed above were allege injury fact sufficient adequate to survive motion to dismiss. The has failed as- dissent of sume truth these allegations effectively require would of his claim in order prove merits to withstand But, the motion to dismiss. given of this procedural posture case, obligated we are the benefit of give petitioner every do Thus, favorable inference. we not find state- petitioner’s ments the County’s actions caused of periods imbalance to be see them factual conclusory—we allegations that must be to be true for presumed resolving purposes motion to dismiss.
We hold that has and is Therefore, entitled to resolution imbalance claim. motion to been with dismiss should have denied to this respect only, County should answered held complaint hearing should have been to resolve factual issues, whether interfered with including hiring within the Board’s personnel budget appropriation manner that resulted in alloca- staff periods unequal political tion. on the Supreme analysis Because Court’s merits focused cause of Board functions—the impairment general allegations po- than the have been dismissed—rather of action should claim, matter must be returned this litical further Court for proceedings. Supreme Division should order of the
Accordingly, fur- Court for modified, costs, by remitting Supreme without and, mod- as so in accordance with opinion ther proceedings ified, affirmed. plain language J. (dissenting part). Rosenblatt, “majority” Law of board provides 3-212 Appel- authorize action the board. The any elections must this concluded unanimously provision
late commissioner suit behalf prohibits bringing for adopting No one can fault that Court board elections. indeed, any difficult read the statute it is interpretation; this way. other however, that, Con- majority, concludes State boards equal partisan representation
stitution mandates *8 to court elections, go Commissioner Graziano is authorized I on his insufficient claims of imbalance. dissent only based allege because Graziano has failed to an unequal representa- In an elections commissioner has my view, aggrieved capac- tion. an sue, allege but a commissioner does not actionable ity who grievance has no to do so. in single
I in a a commis- agree case—one which proper a alleges partisan equilibri- sioner threat board’s properly um—the should and the commis- language yield statute’s plain of elections sioner should have to sue. When board lines because along party practice becomes unbalanced it entity, on an outside imposed by governmental applying § Election 3-212 would impair facial command of Law Law and scheme set forth statutory constitutional Constitution, II, article 8. The thresh- and York 3-300 New meet. when suit, however, Even easy old for should not I think it unac- constitutional justified by compelling purpose, aon an command based legislative to cast aside ceptable explicit short, In Gra- us. as the one before claim so bereft of substance ziano lacks standing. Indus., Inc. v Society Plastics
As this Court observed (77 [1991]), we require 772-773 County of Suffolk in fact ensure an injury review to seeking allege the party action concrete interest prosecuting it “has some dispute traditionally capable which ‘in casts the a form judicial injury resolution.’ fact for stand- ing purposes closely aligned policy with our to render ad- (citations omitted). visory opinions” This interest all becomes pressing beyond plain when, here, more we look read- duly implied of a enacted statute to find an cause of action recognizing capacity remedy in our State Constitution. an disequilibrium elections, unconstitutional on board of we standing jurisprudence. should not relax our well-established majority insists that we fail both assume the truth allegations give every Graziano’s and him benefit favor- contrary, assumption able inference. On the no amount inadequate pleadings. Although inference can validate it has industriously pleadings, mined has not identi- injury Republicans fied a claim Graziano of an to the arising plumbed out of the Board. We have every any record for Graziano, inferences favorable to wanting. found it County’s argument
In his effort rebut the that he lacked standing, County’s hiring poli- fails to Graziano claim that political party’s representation cies diminished his Board. petition, genetically In his Graziano maintains that the “usurped authority proper has the Board’s ... maintain a major positions parties.” balance of staff between argues County’s policies Elsewhere, he “caused ‘equal representation political par- imbalance in the of the two constitutionally required ties’ Board is to maintain composition.” its conclusory arguments
These do not amount to a Republicans. to the Graziano’s submissions include lit- any concerning allegations delays hir- and obstructions in *9 staff, which, maintains, Board he resulted in Board. he imbalances But the claims articulates—and at great length—fall delays Alleging repeated far short of the mark. authorizing spell political disequilib- out a new hires does not political party. itself, rium detrimental to one’s own and of delay political party does not one more than the other. disserve county claiming hiring Further, with dif- interference Board is alleging injury unique Republicans ferent from an detailing hiring Board. Graziano includes chart effects of a generalized freeze, but a freeze and even a workforce shortage political party. Likewise, do not harm constitute to his allegation shortages alternately an both interim affect County’s practices parties claim that does not state disadvantage. consequential placed Rather, at a Graziano’s suggest impairments Board as whole. an such catalogue alleged griev- supplies this Court with Graziano pleadings, presents do address that, in his ances as he them accept representation. unequal Republican I could the issue hiring. given a claim Board But that the obstructed as readily distinguishable county from a suit interference uniquely disadvantaged claiming Gra- interference County’s standing political party. chal- To ziano’s rebut jump pleadings lenge, only shortest needed Graziano unique complaint alleging injury straightforward hurdles, with a party. not. to his He does nothing more than done, all is Graziano offers
When said ap- to block the the hollow assertion that the decision pointment specialists—one Democratic and one election two political equilibrium Republican—upsets on the Board staff. equal represen- face, however, its these vacancies reflect On (or diminution), impermissible equal opposed tation partisan against party.
tilt thus advances Graziano’s Graziano partisan suggesting, let without his claim even alleging, that his was the least bit short- alone own legally cognizable injury changed. Having allege failed properly party, Graziano lacks and his claim was dismissed. part, respectfully and would affirm
I therefore dissent petition. dismissing the order of the Judge Judges Ciparick, Read and R.S. Smith concur with Judge part af- and votes to dissents Graffeo; Rosenblatt Judge Kaye separate Judge opinion in a in which Chief firm Smith concur. G.B. modified, etc.
Order