|Matter of County of Nassau v State of New York|
|2012 NY Slip Op 07236 [100 AD3d 1052]|
|November 1, 2012|
|Appellate Division, Third Department|
|Published by New York State Law Reporting Bureaupursuant to Judiciary Law § 431.|
In the Matter of County of Nassau et al., Respondents-Appellants,et al., Petitioners,
State of New York et al., Respondents, and New York State Boardof Elections et al., Appellants-Respondents.
—[*1] John Ciampoli, County Attorney, Mineola, for respondents-appellants. Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), for State ofNew York, respondent. Davidoff, Malito & Hutcher, LLP, Garden City (Daniel J. Fischer of Koley Jessen, PC, LLO,Omaha, Nebraska, pro hac vice), for Election Systems & Software, respondent.
John Ciampoli, County Attorney, Mineola, for respondents-appellants.
Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), for State ofNew York, respondent.
Davidoff, Malito & Hutcher, LLP, Garden City (Daniel J. Fischer of Koley Jessen, PC, LLO,Omaha, Nebraska, pro hac vice), for Election Systems & Software, respondent.
Peters, P.J. Appeals (1) (transferred to this Court by order of the Appellate Division, SecondDepartment) from that part of an order of the Supreme Court (Woodard, J.), entered July 23,2010 in Nassau County, which, in a combined proceeding pursuant to CPLR article 78 and actionfor declaratory judgment, granted petitioners' motion for immediate discovery, (2) (transferred tothis Court by order of the Appellate Division, Second Department) from an order of said court,entered October 14, 2010 in Nassau County, which, in a combined proceeding pursuant to CPLRarticle 78 and action for declaratory judgment, granted a motion by respondent Election Systems& Software for an order of confidentiality, and (3) from a judgment of the Supreme Court(Lynch, J.), entered June 24, 2011 in Albany County, which, in a combined proceeding pursuantto CPLR article 78 and action for declaratory judgment, granted certain respondents' motions todismiss the petition.
In 2002, in order to improve the accessibility of voting systems to disabled voters, Congressenacted the Federal Help America Vote Act (hereinafter HAVA) (see 42 USC §15301 et seq.). In an effort to comply with HAVA, the Legislature enacted the ElectionReform and Modernization Act of 2005 (hereinafter ERMA) (see L 2005, ch 181),which, as later amended, requires the replacement of lever voting machines with electronicoptical scan voting systems (see L 2007, ch 506, § 1; Election Law § 7-202).Petitioners, believing that electronic voting systems are vulnerable to "hacking, tampering,manipulation and malfunction," resisted efforts by respondent State Board of Elections(hereinafter SBOE) and respondent State of New York to replace lever voting machines with anelectronic system manufactured by respondent Election Systems & Software (hereinafter ESS).
Due, in part, to such resistance, the United States Department of Justice commenced anaction against the SBOE and the State in 2006 seeking an injunction requiring compliance withHAVA. The parties to that action reached an agreement, and the District Court for the NorthernDistrict of New York (Sharpe, J.) issued a remedial order placing the State and the SBOE undervarious conditions, including a timeline for compliance. The deadline for compliance wasextended twice but, by March 2010, the State and the SBOE were still not in compliance withHAVA due to petitioners' continued failure to implement the new voting machines. Shortlythereafter, the State and the SBOE applied for and were granted an injunction directingpetitioners to cease their interference with efforts to comply with the District Court's previousorders and to take actions necessary to implement the new voting machines.[FN1][*2]
Around that same time, petitioners commenced thiscombined proceeding pursuant to CPLR article 78 and action for declaratory judgment inSupreme Court, Nassau County, seeking, among other things, a declaration that ERMA isunconstitutional, claiming that electronic voting systems are susceptible to tampering and thuscreate the risk of "disenfranchisement and subversion of the democratic process." Petitionersthereafter sought an order expediting discovery with respect to various documents, software,access codes and other materials associated with the electronic voting systems which theyclaimed were necessary to "reveal[ ] the weaknesses and vulnerabilities of the new machines."Supreme Court (Woodard, J.) granted the motion, and the State and the SBOE appeal from theorder. Subsequently, ESS was granted intervenor status for the limited purpose of protecting itsintellectual property and trade secrets and successfully moved for a confidentiality order.Petitioners appeal from that order.
While those appeals were pending, the State and the SBOE each moved to dismiss thepetition contending, among other things, that petitioners lacked legal capacity to challenge theconstitutionality of ERMA. After venue of the proceeding was transferred to AlbanyCounty,[FN2]Supreme Court (Lynch, J.) determined that petitioners lacked capacity to pursue their claims and,accordingly, dismissed the petition. Petitioners County of Nassau and John A. DeGrace, in hiscapacity as Nassau County Republican Commissioner of Elections, appeal from that order.
We first address the appeal from Supreme Court's judgment dismissing the petition based onpetitioners' lack of capacity to sue. As petitioners Nassau County Board of Elections (hereinafterNCBOE) and William T. Biamonte, the Nassau County Democratic Commissioner of Elections,have not joined in the appeal from that order, we consider only the issue of capacity with respectto the County and DeGrace (see Hecht v City of New York, 60 NY2d 57, 62 ; Matter of Sanders v Slater, 53 AD3d716, 717 n 1 ). We find that DeGrace lacks the capacity to unilaterally maintain theinstant appeal. Election Law § 3-212 (2) requires that all actions of local boards ofelections be approved by a majority vote of the commissioners. As the claims in this proceedingraise issues affecting the NCBOE as a whole, as opposed to those alleging a political imbalanceon the NCBOE or otherwise relating to the representational rights of the political parties thereon,the pursuit of the instant appeal is an "action" of the NCBOE requiring approval of a majority ofthe commissioners (see Matter ofGraziano v County of Albany, 3 NY3d 475, 480 ). In the absence of any proofthat such approval has been given, DeGrace lacks the capacity to maintain the present appeal onbehalf of the NCBOE (see id. at 480; Matter of Mohr v Schroeder, 86 NY2d 786,788 , revg 216 AD2d 926 , for the reasons stated in 162 Misc 2d584 ; Gagliardo v Colascione, 153 AD2d 710, 710 , lv denied 74NY2d 609 ). As such, his appeal must be dismissed (see Matter of Bridgham vTutunjian, 84 AD2d 853, 853 ).[*3]
The only issue that remains, therefore, is whether theCounty has capacity to challenge the constitutionality of ERMA.[FN3]We hold that it does not. "[C]apacity concerns a litigant's power to appear and bring its grievancebefore the court" (Matter of Graziano v County of Albany, 3 NY3d at 478-479 [internalquotation marks and citation omitted]; see Matter of Town of Riverhead v New York State Bd. of Real Prop.Servs., 5 NY3d 36, 41 ). As purely creatures of the State, municipal entitiesgenerally "cannot have the right to contest the actions of their principal or creator affecting themin their governmental capacity or as representatives of their inhabitants" (City of New York vState of New York, 86 NY2d 286, 290 ; see County of Albany v Hooker, 204NY 1, 10 ; Matter of County ofOswego v Travis, 16 AD3d 733, 735 ). Thus, municipalities and other localgovernment entities lack capacity to attack actions by the State and the Legislature onconstitutional grounds unless they properly invoke one of the four recognized exceptions to therule (see City of New York v State of New York, 86 NY2d at 289-293; Matter of New York Blue Line Council,Inc. v Adirondack Park Agency, 86 AD3d 756, 758 , appeal dismissed subnom. Matter of Clinton County v Adirondack Park Agency, 17 NY3d 947 , lvdenied sub nom. Matter of Clinton County v Adirondack Park Agency, 18 NY3d 806 ;New York State Assn. of Small CitySchool Dists., Inc. v State of New York, 42 AD3d 648, 649 ). Here, the Countyasserts " 'that if [it is] obliged to comply with the State statute [it] will by that very compliance beforced to violate a constitutional proscription' " (City of New York v State of New York,86 NY2d at 292, quoting Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283,287 ; see Matter of County of Oswego v Travis, 16 AD3d at 735), thereby comingwithin an exception.[FN4]
However, the County cannot claim that, by complying with ERMA, it will be forcedto violate a constitutional prohibition, because it is the NCBOE—not theCounty—that is responsible for the implementation of the requirements of ERMA. Indeed,nowhere is it alleged in the petition/complaint that the County plays any role in theadministration of ERMA or the [*4]selection of votingmachines.[FN5] Rather, the petition/complaint specifically alleges that it is the NCBOE that "is responsible forcarrying out the elections in Nassau County," which responsibility includes, among other things,"[s]electing new voting systems approved by the [SBOE] and ERMA." And, the Election Lawconfirms that it is the local board of elections that is charged with the selection andimplementation of voting systems and machines (see Election Law §§3-226, 7-200 ; 7-208). Notably, in this regard, the NCBOE does not act on behalf of theCounty, but is rather an independent political body separate and distinct from the County (seeMatter of Reynolds, 202 NY 430, 441 ; Matter of Daly v Board of Elections ofCity of N.Y., 254 App Div 914, 914 , affd 279 NY 743 ). Inasmuch asthe County has neither alleged nor demonstrated that it plays any role in implementing the statuteit seeks to challenge, it cannot be said that the County itself will be forced to violate aconstitutional proscription if obliged to comply with the statute. Thus, having failed to bring itsclaims within any recognized exception to the general rule that municipalities lack capacity tosue the State, the action on behalf of the County was properly dismissed (see City of NewYork v State of New York, 86 NY2d at 295).
With respect to the appeals from the two intermediate discovery orders, those appeals mustbe dismissed. "[T]he right to appeal from a nonfinal order terminates upon the entry of a finaljudgment" (State of New York vJoseph, 29 AD3d 1233, 1234 n , lv denied 7 NY3d 711 ; seeMatter of Aho, 39 NY2d 241, 248 ; Cunningham v Anderson, 85 AD3d 1370, 1371 , lvdismissed and denied 17 NY3d 948 ). Furthermore, as the interlocutory orders do not"necessarily affect[ ]" the final judgment, the appeal from the final judgment does not bring themup for review (CPLR 5501 [a] ; see generally Matter of Cicardi v Cicardi, 263 AD2d686, 686 ).
Rose, Spain and McCarthy, JJ., concur. Ordered that the appeals from the orders entered July23, 2010 and October 14, 2010 are dismissed, without costs. Ordered that the judgment isaffirmed, without costs. [Prior Case History: 2010 NY Slip Op 31420(U).]
Footnote 1: The order granting the SBOEpreliminary relief was affirmed by the Second Circuit Court of Appeals (United States v NewYork State Bd. of Elections, 312 Fed Appx 353 [2d Cir 2008]).
Footnote 2: As a result of venue beingtransferred to Albany County, the Second Department transferred the appeals from the expediteddiscovery order and confidentiality order to this Court.
Footnote 3: The petition also challenged theSBOE's 2009 certification of the electronic voting system as arbitrary and capricious, claimingthat the voting system disregards voter intent by not counting the vote where the voter"overvotes" or "undervotes," and that it would be nearly impossible to install the machines priorto the fall 2010 election. However, the fall 2010 election has long since passed, and the votingsystem that is the subject of these claims is no longer in use and a new version has since beencertified. As such, these claims are now moot (see Matter of Hearst Corp. v Clyne, 50NY2d 707, 714 ).
Footnote 4: Petitioners do not claim theapplicability of any of the other exceptions to the rule.
Footnote 5: In fact, with respect to theconstitutional claims raised in the petition, the only specific mention of the County—asopposed to the NCBOE—is that it is a municipal corporation organized under the laws ofNew York.