In the Matter of Penny Mintz,, Appellant,v.The Board of Elections in the City of New York, Respondent, Rachel Lavine, Intervenor-Respondent.BriefN.Y.August 29, 2018RECEIVED AU6 2 4 2018 COURT OF APPEALSN.Y.S.•l*2Sv THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 Jane L. Gordon Phone: (212)356-0846 jgordon@law.nyc.gov ZACHARY W. CARTER Corporation Counsel August 23, 2018 John P. Asiello Clerk, New York Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Mintz v. Board of Elections First Department Index No. 157145/2018 Dear Mr. Asiello: Respondent-Respondent Board of Elections in the City of New York (the “Board”) submits this letter in opposition to petitioner-appellant’s asserted appeal as of right arising out of the two-justice dissent in the Appellate Division, First Department. This appeal, taken by notice of appeal, should be dismissed at the threshold because petitioner has no appeal as of right. If the Court reaches the merits, it should affirm because the courts below correctly applied well- established law to these particular facts. Statutory and Procedural Background The Rules of the Democratic Party of the State of New York, Art. II, § l(c)(iii)(a) (Pet’r’s App’x 132) ( see Election Law § 2-114(1)) provide that “[i]n all cases in which provision is made in this Section for the election of two members, one shall be a male and the other a female.” Accordingly, the 2018 State Democratic Party Call - State Committee Positions and the Statement and Call of the Democratic Party of New York County (Pet’r’s App’x 152) (see Election Law §§ 2-120(1) and (2)), which set forth the party positions to be filled at the 2018 Primary Election, each provide for the election of a male and female member. Here, petitioner filed a designating petition purporting to designate her as a candidate for election to the party position of Member of the Democratic Party State Committee from the 66lh Assembly District. The Board determined that the designating petition was invalid because it failed to specify, as required, the title of the party position-specifically, it failed to state whether or not petitioner was seeking to be elected to the male or female position. Petitioner then commenced this proceeding for a declaration that her petition was valid because her first name was by definition female and thus was sufficiently informative and would A. John P. Asiello Re: Mintz v. Board of Elections First Department Index No. 157145/2018 August 23, 2018 Page 2 cause no cause no confusion or deception. New York Supreme Court (Edmead, J.), bound by this Court’s decision in Bosco v. Smith, 63 N.Y.698 (1984), aff'gfor reasons stated at 104 A.D.2d 462 that strict compliance with this statutory command is mandatory, granted the Board’s motion to dismiss the petition. For the reasons stated in that opinion, the Appellate Division, First Department, majority affirmed. B. Petitioner has no appeal as of right Presumably, petitioner relies on C.P.L.R. 5601(a) as a basis for this Court’s jurisdiction, but that subsection applies only where a two-justice dissent was “on a question of law.” Here, while the majority affirmed on a question of law, the dissent rested entirely on the underlying facts and the inferences to be drawn therefrom— that is, because the dissent believed that only the Female Member party position was to be filled at the Primary Election therefore the designating petition was sufficiently informative. In fact, both the Male and Female Members of the State Committee in the 66Ih Assembly District will be elected in the September 13, 2018 Primary Election. The dissent raises fact-based issues that are inappropriate for this Court’s review. See Quinones v. Bass, 45 N.Y.2d 811, 814 (1978) (noting jurisdictional constraint on considering arguments about “factual issues” surrounding designating petition and “inferences” rejected below); Roman v. Sharpe, 42 N.Y.2d 986, 987 (1977) (concluding no appeal as of right where majority and dissent disagreed as to “factual determination” on change dates). C. Supreme Court lacked subject-matter jurisdiction over this proceeding As set forth more fully in the Board’s brief to the Appellate Division, Supreme Court lacked jurisdiction over the special proceeding because the petition commencing the instant proceeding was not properly verified. Contrary to court rules, this case was filed through the New York State Courts Electronic Filing System (“NYSCEF”).1 In a special proceeding brought pursuant to Article 16 of the Election Law, the failure to have a properly verified petition is a jurisdictional defect mandating dismissal of the proceeding. N.Y. Election L. § 16-116; Matter of Goodman v. Hayduk, 45 N.Y.2d 804 (1978); Niebauer v. Bd. of Elec, in the City of N.Y., 76 A.D3d 660, 660-61 (2nd Dep’t 2010). A verification is made by affidavit. C.P.L.R. Rule 3021. But here, rather than affixing her signature to the verification, someone typed an “/s/” in it its place (Interv-Resp’s App’x RA007). Section 202.5-b(e) of the Uniform Rules for the Trial Courts [9 N.Y.C.R.R. § 200, et seq.~\ sets 1 Pursuant to Administrative Order 192/2018 of the Chief Administrative Judge of the Courts, Election Law matters are precluded from being electronically filed. See AO 192/18, Appendix A, p. 8 (available at https://www.nvcourts.gov/rules/efiling/PDF/AQ%20-192-18.pdf, last visited August 22, 2018). John P. Asiello Re: Mintz v. Board of Elections First Department Index No. 157145/2018 August 23, 2018 Page 3 forth the circumstances an electronically filed document will be considered to have been signed. No provision of Rule 202.5-b authorized the use of an “/s/” in lieu of petitioner’s signature. As such, the petition was not properly verified and Supreme Court, New York County lacked jurisdiction to determine the claims. The dissent never reached this purely legal alternative ground for affirmance, expressing at oral argument that it was not properly before the Appellate Division because the Board did not notice a cross-appeal. But the Board could not have cross-appealed because it was not aggrieved by Supreme Court’s judgment; after all, the court denied petitioner’s application and dismissed the petition in its entirety (Pet’r’s App’x 13). Still, nothing foreclosed the Board from raising alternative grounds for affirmance. See Parochial Bus Sys., Inc. v. Bd. ofEduc., 60 N.Y.2d. 539, 545-56 (1983). D. Bosco is controlling on the merits In Bosco, this Court decided that there must be “strict compliance” with the requirements of subdivision 4 of section 2-102 of the Election Law, which requires that designating petitions and primary ballots “shall” list candidates “separately by sexes.” In that case the petitions for both candidates failed to “state anywhere” that candidate Imogene R. Mayer was female and candidate F. Wilson Smith was male, and this Court found that this was fatal. The dissent here tried to distinguish Bosco, mistakenly finding it dispositive that the male candidate in Bosco used only an initial and that only the female candidate was up for election this year. In fact, the candidates in Bosco were listed on the petition as “F. Wilson Smith” and “Imogene Mayer,” And this Court found that both had to include their gender on the petitions, even though many might assume that Imogene, like Penny, is strictly a female name. The record here is clear that both the male and female committee positions are to be filled at the 2018 Primary Election and that the title of the party position in question included the gender of the committee member, which is the only manner of distinction between the two members of the state committee from the 66th Assembly District. That aside, the dissent failed to acknowledge that this Court has held that matters of content are subject to strict compliance, Hutson v. Bass, 54 N.Y.2d 772, 774 (1981) (citations omitted), and that the gender of a candidate for member of a party committee is a matter of content. Bosco v. Smith, 104 A.D.2d 462 (2nd Dep’t 1984) (“[F. Wilson] Smith and [Imogene] Mayer failed to designate their respective sexes anywhere on the designating petitions. Thus, unlike the case of Matter of Goldblum v Power, 5 NY2d 749 (1958), this is not merely a matter of form, where the requisite information is contained in the designating petition. Rather, the necessary information is completely omitted. Consequently, the application to invalidate should have been granted.”) aff’d 63 N.Y.2d 698 (1984). John P. Asiello Re: Mintz v. Board of Elections First Department Index No. 157145/2018 August 23, 2018 Page 4 For the foregoing reasons, and the reasons stated in our brief filed in the Appellate Division, the Board of Elections in the City of New York respectfully requests that this Court determine that petitioner-appellant may not appeal as of right and, in the event the Court considers this appeal, affirm the determination of the Appellate Division. Respectfully yours, Jane L. Gordon .Stephen Kitzinger Assistant Corporation Counsel COURT OF APPEALS STATE OF NEW YORK -x PENNY MINTZ, Petitioners-Appellants, AFFIRMATION OF SERVICE -against- BOARD F ELECTIONS OF THE CITY OF NEW YORK, New York County Clerk’s Index No. 157145/18Respondent-Respondent, -and- RACHEL LAVINE, Intervenor-Respondent. -x STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) Jane L. Gordon, an attorney admitted to practice before the Courts of the State of New York, affirms pursuant to Rule 2106 of the Civil Practice Laws and Rules: 1 . I am an attorney in the office of Zachary W. Carter, Corporation Counsel of the City of New York, attorney for Respondent Board of Election of the City of New York in the above-entitled proceeding. 2. On August 23, 2018, I served a copy of the annexed Letter brief upon the following people: Roberta A. Kaplan Kaplan Hecker & Fink LLP 350 Fifth Avenue, Suite 7110 New York, NY 10118 Attorneys for Intervenor-Respondent RECEIVED AUG 2 4 2018 N.Y.S. COURT OF APPEALS Arthur Z. Schwartz Advocates for Justice Chartered Attorneys 225 Broadway, Suite 1902 New York, NY 10007 Attorneys for Petitioner-Appellant By mailing the paper to the person at the address designated by him or her for that purpose by depositing the same in a drop-off location for UPS overnight service under the exclusive care and custody of UPS within the State of New York pursuant to CPLR 2103 (b)(2). A J&nfL. Gordon Dated: New York, New York August 23, 2018 -2-