149 Misc. 298 | N.Y. Sup. Ct. | 1933
This is an application for a peremptory mandamus directed to the board of elections to compel the elimination of candidates nominated by independent groups for the position of justice of the Supreme Court in the First Judicial District, under the name and emblem of the Recovery party. The application is made by a candidate for the Supreme Court whose name appears on the ticket under the names and emblems of- the Republican and of the City Fusion parties. His objection is made pursuant to section 330 of the Election Law, which gives the Supreme Court power to make such order as justice may require in respect to: “ 1. The designation of any candidate, in a proceeding instituted by any candidate aggrieved or by a person who shall have filed objections pursuant to section one hundred and forty-two.” The application for a mandamus has been made by a. candidate pursuant to this statute without the prefiminary filing of objections. The law authorizes this procedure, and, therefore, the petitioner has brought his application within the jurisdiction of the court.
A cross petition, which may be consolidated with this application for a mandamus, is made by the executive committee of the Recovery party under objections filed with the board of elections to the petitions made by the bodies which have brought about the independent nominations of Dennis O’Leary Cohalan and Moses H. Grossman. It is to be observed that the committees and groups which sponsored their nominations are different. Both, however, agree in claiming the right to the name of the Recovery party and the emblem of the emblazoned key. The four other nominees are also sponsored by distinct groups of committees and nominators, each proceeding by separate petition and each claiming the name of City Recovery party and the emblem of the key.
The executive committee of the Recovery party, by resolution adopted on Friday, October 13, 1933, has approved and indorsed the nominations of four of the six independent nominees for the judicial ticket, namely, Messrs. McCook, Rosenman, McLaughlin and Koch, and disapproved the nominations of Messrs. Cohalan and Grossman; and objections were simultaneously filed with
As pointed out in Matter of Franklin (212 App. Div. 664), objections of the nature mentioned must be considered by the Supreme Court in the first instance and may not be passed upon by the board of elections. The jurisdiction of the latter to pass upon the objections is limited to ministerial matters. In this respect the procedure varies from that existing prior to the passage of the amendment of 1911 as embodied in chapter 649 of the laws of that year. The board of elections has recognized the fact that the situation is such as to devolve upon this court the duty of passing upon these objections. It is neutral in the matter, and only seeks instructions on one very important point, namely, there being only five vacancies for the position of Supreme Court justice in the First Judicial District and six nominees having been presented with the emblem of the Recovery party, which ones, if any, shall be recognized by the board of elections as duly designated candidates under the name and emblem of the Recovery party. The executive committee has taken the simple stand of indorsing four
Since the initiation of these proceedings, Mr. Cohalan has signified his intention to withdraw from his place on the Recovery ticket. While the time to. decline the nomination is beyond the limit provided by law, nevertheless, the court may consider the candidate’s disinclinations as a controlling element in deciding between the claims of his nominators and the rival claims of another in a situation like the present one, where there are two nominations for one place. The petitioner takes the position that none of the five nominees is entitled to a place on the Recovery ticket. The executive committee of the Recovery party, as I have observed, has. indorsed four of the candidates and has specifically objected to giving the fifth place to Mr. Grossman, who, with the withdrawal of Mr. Cohalan, is the only one whose claim can be considered for that place.
The papers in their present form concededly present no issues of fact, but only questions of law: First, the right of the executive committee of the Recovery party to ratify the nominations of Justices McCook, McLaughlin, Rosenman and Koch; and, second, the right of Mr. Grossman to a place on the Recovery ticket over the objection of the executive committee. Certain decisions which seem to be decisive upon the questions have been challenged by reason of the fact that they were based up,on a former statute dealing with the status and name and emblem of an independent party. It becomes necessary at. the outset, therefore, to inquire into the nature .of an independent ^party and its method of functioning as defined by the Election Law of 1909 under which many important precedents were created, and the extent to which the provisions of the present law have made these precedents obsolete. The Election Law in effect at the time of the decision in Matter of O’Brien (152 App. Div. 856; affd., 206 N. Y. 694), to which constant reference has been made in the briefs, contains this definition of an independent body: “ § 2,
In Matter of O’Brien (supra) it appeared there was a voluntary association known as the National Progressive Party, Incorporated, which assumed jurisdiction over the National Progressive party, an independent organization which had not yet ripened into a regular political party. The party itself had nominated its full State ticket by petition and a more or less full ticket in judicial, congressional, senatorial and assembly districts and counties. A committee representing the Third Judicial District decided that no nomination should be made by members of the Progressive party for justice of the Supreme Court of that district. Notwithstanding such determination, a petition was presented by a sufficient number of electors for nomination for justice of the Supreme Court upon the ticket of the National Progressive party. Assuming that the petition was signed by persons who were in fact members of the National Progressive party, the court held that the objection on the part of the committee to any nomination was not sufficient to deprive the members of the party from making a nomination if they saw fit, the Appellate Division basing its reasoning upon the following statement: “ The members of any party are greater than its committees, for the committees are but mere creatures of the body of the party itself.” The Appellate Division further held (at p. 861) that it was not necessary for the same electors who signed, the nominations for State offices or for any of. the local offices within the Third Judicial District, also to sign the petition for nomination for justice of the- Supreme Court for that district. The reasoning of the Appellate Division was upheld by the Court of . Appeals by a vote of four to three, with a strong dissenting opinion of Chief Judge Cullen. While in my personal views I am inclined to agree with the reasoning in the dissenting opinion, I am bound by the majority rule as laid down in that case.
Assuming that the O’Brien case, while based upon repealed sections of the Election Law, is still the rule, how does it fit the present situation as regards Mr. Grossman, the sympathy of whose
I realize the great practical difficulties which might arise by reason of the possibility that numerous independent groups might rush to take advantage of the prestige of the name and the emblem of the main group. That is why I was much impressed with the reasoning of the dissenting opinion of Chief Judge Cullen in the O’Brien case. At the same time, if rival claims arise, they must be disposed of on the facts existing at the time, regardless of the unpleasantness and the difficulty of the situation.
All this is on the assumption that the O’Brien case is consistent with the present status of the Election Law.
As to the petitions for the other four judges, the views in Matter of O’Brien and Matter of Folks (supra) are, a fortiori, decisive. I cannot accept the view of the petitioner that the ratification by the executive committee must occur before the final date for filing independent nominations. The deadline for filing such nominations was October 10, 1933, at midnight. On that day or night there
It might be suspected from the reading of the decisions in the O’Brien, Folks and Wechsler cases that committees of the independent bodies, apart from those named to fill vacancies due to declinations, are established by the old law, while absent from the present statute. This, however, is not the fact. The decisions in the older cases, in giving recognition to committees for purposes of giving approval to other bodies, indicate the practical necessity of extending the scope of an independent body beyond the mere
While the original committee has the power of approval, it cannot be said categorically that it has the absolute veto power to bar members of an independent group, whose names may not be identical with those on the original petition for the head of the ticket, to nominate for a place originally left vacant by the committee. Here it is not disputed that the signers for Mr. Gross-man are in sympathy with the principles of the Recovery party. Shall we say that they must be barred because the committee has adopted as a platform that only sitting judges shall be voted for? If five sitting judges had been indorsed by the original committee, Mr. Grossman’s petition would have had to be rejected under the rule in Matter of Folks (supra); but only four of the persons indorsed being sitting judges, the question is whether the admission of Mr. Grossman’s petition does violence to the platform of the Recovery party and is prejudicial to the head of the ticket. I do not see how such a conclusion can be reached. It is the duty of every voter in this election to vote for five judges. If he votes for only four, he is not doing his full duty. The original committee of the Recovery party is virtually telling its adherents, “ We only recommend four judges but you are free to select a fifth judge from one of the other nominees.” A qualified number of members of the Recovery party do not like this procedure and they feel that the interests of the party will be promoted by selecting a definite name for the vacancy, with the recommendation under the party name and emblem to the suffrage of the body of voters at large. Why should they be prevented from doing that? Under the O’Brien decision this cannot be done.
There are two other considerations which support the conclusion as to the admission of the Grossman petition. One is the recent origin of the Recovery party and the wisdom of viewing its first resolution not to nominate candidates for the Supreme Court, and its second resolution to indorse as candidates only sitting judges, as not being expressions of permanent party policy. The second consideration is the fact that the nomination in question is for an office for the selection of which principles of non-partisanship are frequently applied. The selection or indorsement of a judicial candidate cannot influence or . impair the policy of a body
What shall we say of the point so greatly emphasized by the petitioner, namely, that the head of the ticket previously expressed the desire not to have any nominations for the Supreme Court, and, therefore, his determination was evidence of the principles of the Recovery party not to nominate any candidates for the judiciary? That reasoning is without weight. It is the electors who nominate the candidate or the committee designated to fill vacancies, which has sole power to act. The candidate's voice ordinarily is of no moment, save perhaps in exceptional and doubtful cases. The candidate may even be a non-adherent of the independent party, indorsed by that body although belonging to a different political faith. It is the desire and wish of the original committee which is of practical moment — not the desire of a candidate, no matter how prominent he may be, and notwithstanding the fact that he may even be the head of the ticket.
The consolidated motions are disposed of by directing the board of "elections to place in the row of the Recovery party the names of Messrs. McCook, Rosenman, McLaughlin, Koch and Grossman, in the spaces under the columns of candidates for justices of the Supreme Court, in such order as may be provided by law.
Settle order forthwith.