State of New York
Supreme Court : County of Monroe

ELEANORE E. DiFEDE,

Petitioner,

For a judgment under Election Law Article 16

- against -

Index No. 97/1718

Respondent.

_______________________________

ANDREW V. SIRACUSE, J.

On January 15, 1997, the Town Board of the Town of Henrietta approved a resolution to lease the water system it owned to the Monroe County Water Authority, under § 198.12 of the Town Law, which governs the authority of Towns with respect to water districts. As the lease would result in increased water bills for Henrietta residents, in the short term at least, a petition campaign was launched by respondent and several others to require a referendum on the question. Petitions with in excess of 1100 names were presented to the Town Clerk on February 14, 1997.

The present action, which under Town Law 91 and Election Law Art. 16 is a special proceeding, is before the court pursuant to an index number and RJI purchased on February 19, 1997, and an order to show cause signed by this court on February 20 and made returnable February 27. Oral argument was held on that date, with submissions by both parties, and numerous substantial arguments have been raised by both the objector and the respondent.

The court finds that the jurisdictional issue to which respondent appeals is dispositive, but for the parties' benefit all of the arguments will be addressed in turn.

JURISDICTIONAL ISSUES

All special proceedings must be commenced by the filing of a notice of petition or order to show cause and a petition (CPLR 304). Town Law § 91 requires that "a verified petition setting forth the objections be presented * * * to the supreme court" within five days after the filing of the petition for the referendum. The section goes on to incorporate the hearing procedure of Election Law § 16-116, but refers to no other specific sections of the Election Law.

Section 16-116 sets out no time limits for commencing actions; these are found in other sections within Article 16. The court finds that these sections are too specific to apply to proceedings like the present one, and that the five-day period in which one must present the petition to Supreme Court is the period in which one must commence the special proceeding. It should be noted that there is no requirement that these proceedings be brought on by order to show cause, and that the mere filing of a notice of petition would be sufficient to commence one.

It is not contested that petitioner here made no such filing within the five days allowed for the commencement of this proceeding, and as of this date no petition, notice of petition, or order to show cause has been filed with the county clerk.¹ There is thus nothing pending before this court, as the order to show cause itself did not permit any late filing of the papers.

For this reason alone the proceeding here is a nullity. Without filing there can be no valid service, and without either there is nothing justiciable before the court (see, Zicari v Stewart, 207 AD2d 951). Since the limitations period has elapsed, the petitioner may not recommence the proceeding.

Respondent also argues that petitioner failed to meet the five-day limit on presenting the petition to Supreme Court. As noted above, the order to show cause was signed on February 20, but the index number was purchased and the order to show cause was delivered to the Assignment Office on February 19. Personal service on an individual justice is neither required nor possible; litigants address the Supreme Court by presentation of papers to the appropriate clerk. Had the notice of petition or order to show cause been filed on the 19th, the requirement of submission to the court within five days would have been met.

OBJECTIONS TO THE FORM OF THE PETITION

The jurisdictional failure to file the initiatory papers is fatal to this proceeding. However, in the event of an appeal, and for the benefit of the parties, this memorandum will discuss the remaining issues raised.

The petitioner first claims that the referendum petition does not specifically oppose a decision of the Town Board, merely requesting a public vote on the decision to lease Henrietta's water system to the County Water Authority. Because of this omission, the signatories may have been misled into believing that they were asking for no more than a confirmatory vote.

This objection, along with the closely related one that the petition fails to request a vote on "approval or disapproval" of the resolution, are both without merit. The petition form states:

We the undersigned, duly qualified electors of the Town of Henrietta, respectfully petition that the following resolution #346-97 entitled "Authorization for the Supervisor to Sign Lease with the Monroe County Water Authority" duly adopted by the Town Board on January 15, 1997, be submitted to a vote of the duly qualified electors of the Town for their approval as provided by law.

Petitioner's objection is that the text does not specifically oppose the resolution. Nonetheless, the purport of the language is clear; it could hardly be construed as a request that the matter be referred for confirmation by the electors. Moreover, a vote on approval necessarily implies the option to disapprove, unless one lives in a one-party state. The right of the people to petition is an important one, and the words of Town Law 91 are not a shibboleth (see, Morabito v Campbell, 59 AD2d 703). The petition more than adequately conveys the issue to be presented, and it is hard to say how much more specific it could be.

The cases cited by petitioner are not to the point. In Application of McComb (232 NYS2d 861, affd 18 AD2d 662) several of the petition sheets were without any statement of purpose, and these were invalidated. That issue does not arise here. In Town of Mount Pleasant (82 Misc 2d 869) the petition opposed the siting of the town hall at a particular intersection, and the court ruled, "An objection to a particular location may not be construed as an objection to the whole idea nor transformed into a request that the voters be given an opportunity to vote upon the concept" (82 Misc 2d, at 871). Here, on the contrary, it is perfectly clear what the electors/signatories are objecting to.

The third objection made by petitioner to the text of the petition itself is that the petition "refers only to the undersigned electors and does not identify them as property owners." But the petition refers to the signatories as "duly qualified electors", which means -- under the Town Law -- those who have real property subject to taxation. The petition uses the term of art which conveys the meaning here denied to them.

OBJECTIONS UNDER ELECTION LAW § 6-132

Petitioner next objects that the statement of acknowledgment signed by a commissioner of deeds or notary public is not in proper form. That text is omitted in the petitions, in fact, but it was not required; the signatures were witnessed by an elector, and the omitted text is only a substitute for the statement of a subscribing witness; Election Law § 6-132 states, "in lieu of the signed statement of a witness who is a duly qualified voter *** the following statement signed by a notary public or commissioner of deeds shall be accepted."

The next argument made by petitioner is that the petitions are invalid because the petitions were neither fastened together nor consecutively numbered. However, the Town Law provides that the petition may be made upon separate sheets which "when fastened together and offered for filing shall be deemed to constitute one petition." This has been held to authorize the acceptance of a petition filed in four separate sections at different times (Matter of Cohalan v Olmo, 41 AD2d 840). There is no reason why the Town should not accept the stack of petitions that were filed, especially as nothing in the Town Law requires that the petition sheets be serially numbered. Furthermore, it is precisely the fastening and numbering requirements of the Election Law that have been relaxed by recent amendments.

At oral argument petitioner's counsel, for the first time, argued that the petitions were invalid because the signatories did not identify the electoral districts where they lived. Had there been no controlling precedent this court would have been inclined to consider this requirement inapplicable to referendum petitions. However, two Second Department cases, one of them affirmed for reasons stated by the Court of Appeals, compel a different result; "Section 6-130 of the Election Law, which requires inclusion of the election district, applies to referendum petitions governed by Section 91 of the Town Law" (Matter of Lindley v Babylon Town Clerk, 80 AD2d 879, affd for reasons stated, 53 NY2d 683; see also, Gomberg v Gorman, 117 AD2d 583; accord, Graham v City Clerk of City of Ogdensburg, 104 AD2d 703 [3d Dept]). Had this issue been reached, then, the court would have granted the petition and invalidated the petitions seeking the referendum.

OBJECTIONS TO SPECIFIC SIGNATURES

Petitioner then turns to the signatures themselves, relying on the provisions of Town Law § 91 that require five percent of the electors to have signed the petitions for a referendum. As respondent notes, however, this proceeding is governed by Town Law § 198.12, because it is the lease of the water district, and a referendum under that section may be had upon the signature of 100 electors. Since petitioner's objections, even if all correctly taken, would result in 497 valid signatures, the petitions would have been sufficient in number if the signatories had supplied electoral districts.

The petitioner's major issue regarding individual signatures is an unusual one. The subscribing witness's statement as required by the Election Law refers to the signatories as him/her and himself/herself. The subscribing witnesses here erroneously thought that these terms referred to themselves and not to the signatories, and crossed out the term that did not apply to their sex. Petitioner wants to invalidate nearly half the signatures -- the women whose signatures were witnessed by a man and vice versa.

This was a clear clerical error of no substance, and it is impossible to conclude that the subscribing witnesses in any way intended a fraud or anything improper. In addition, General Construction Law § 22 states that male terms are to refer to male and female, as will female terms. Had the printed text used one gender rather than both all signatures would be valid; thus, the changes made by the subscribing witnesses have no effect anyway.

Petitioner counted on this objection to strike 498 signatures, raising additional objections to only 178 more. If the challenge to these 498 is improper, the referendum would go forward even if all of the other objections were properly based. For completeness' sake, however, those remaining objections will be discussed.

On four pages the witness signed the petition, thus witnessing his/her own signature. Petitioner wants the entire pages thrown out; but in the absence of any pattern of fraud the witness's signature only is excluded; see Application of Foote, (175 Misc 60, 22 NYS2d 885, 889): "The objection that 6 of the signers witnessed their own signatures, and consequently should not be counted is well taken. Those signatures are obviously invalid and may be rejected by the town clerk."

There are 29 signatures that were crossed out but, according to petitioner, were not initialed. However, the sheets show that the subscribing witness did not list the struck-out signatories when adding up the number of signatures on the sheet. These were not counted in the first place and thus should not be excluded. There were approximately twelve cases where the subscribing witness crossed out a signature erroneously placed in the subscribing witness's block and wrote in his/her own. Since the signatory's mark in that block was meaningless, no error is caused by the strikeout's remaining uninitialed.

According to petitioner, 66 of the signatories are not property owners. In the absence of evidence that the assessment roll submitted is inaccurate, the court must accept this contention.

Twenty-three names were printed instead of signed in cursive. Following 1953 Op St Compt file #6331, however, the court would find these valid:

In determining the sufficiency of these petitions, the rather strict requirements of the Election Law,§ 135 require the "full name" of the signer. However, the Town Law,§ 91 requires the petitions to be "subscribed." Thus the definition of "signature" under the General Construction Law, § 46 would be applicable:

"The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing."

Petitioner states that three pages show in incorrect count of signatures. The court finds that only one of these is incorrect, page 100, where two people signed as a couple and were incorrectly counted. The four signatures on that sheet are invalid.

Sheet 131 and 136 are bad because they lack a date in the subscribing witness's statement and an address therein, respectively. Together these amount to nine invalid signatures.

The total number of excludable signatures is 83. This leaves over one thousand valid signatures, again without reference to the omission of electoral districts.

CONCLUSION

The petition to invalidate respondent's petitions is dismissed as a nullity, without costs or disbursements. Respondent may prepare an order, upon notice to petitioner, as expeditiously as possible.

February 27, 1997

Andrew V. Siracuse, J.S.C.

Note 1. Under a recent amendment to CPLR 304 filing is defined as "delivery of the ***order to show cause to the clerk of the court *** together with any fee required *** for filing. At such time of filing, the original and a copy of such papers shall be date stamped by a court clerk who shall file the original and maintain a record of the date of the filing and who shall immediately return the copy ***." The Monroe County Clerk is the clerk of Supreme Court and submission to the Supreme Court Assignment Office neither comports with the above procedure nor qualifies as filing.

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