The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 20, 2015 521521
________________________________
In the Matter of BRIAN SCAVO,
Appellant,
v MEMORANDUM AND ORDER
ALBANY COUNTY BOARD OF
ELECTIONS,
Respondent.
________________________________
Calendar Date: August 20, 2015
Before: Lahtinen, J.P., McCarthy, Garry and Clark, JJ.
__________
Brian Scavo, Albany, appellant pro se.
Thomas Marcelle, County Attorney, Albany (D. Steve Rahmas
of counsel), for respondent.
__________
Per Curiam.
Appeal from a judgment of the Supreme Court (R. Sise, J.),
entered August 7, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to Election
Law § 16-102, to, among other things, declare valid the
designating petition naming petitioner as the Democratic Party
candidate for the public office of Albany County Legislator for
the 9th Legislative District in the September 10, 2015 primary
election.
Petitioner filed a designating petition with respondent
seeking to be nominated as the Democratic Party candidate for the
public office of Albany County Legislator for the 9th Legislative
District in the September 10, 2015 primary election. By letter
dated July 21, 2015, respondent determined that the designating
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petition was insufficient due to petitioner's failure to comply
with the durational residency requirement of Albany County
Charter § 202. Petitioner commenced this proceeding pursuant to
Election Law § 16-102 to, among other things, declare valid his
designating petition.1 Following a hearing, Supreme Court found
that, among other things, petitioner did not meet the residency
requirements and dismissed the application. This appeal ensued.
Pursuant to Albany County Charter § 202, "[e]ach County
Legislator shall be a resident elector of the Legislative
District he or she represents for at least one (1) year preceding
the election and throughout the term of office." On his
designating petition for the 9th Legislative District, petitioner
listed an address that, undisputedly, is not located within the
9th Legislative District, and he later conceded at the hearing
that he had moved out of the 9th Legislative District and into
the 8th Legislative District about 11 months earlier.
Initially, we are unpersuaded by petitioner's claim that
respondent lacked the authority to determine the validity of his
designating petition. In that regard, respondent's determination
that the residential address that petitioner listed on the
designating petition is not within the 9th Legislative District
and that petitioner, therefore, did not satisfy the applicable
durational residency requirements is a matter that "appear[s]
upon the face of the petition" and, as such, concerns a
ministerial objection within the power of respondent to review
(Schwartz v Heffernan, 304 NY 474, 480 [1952]; see Matter of
Wicksel v Cohen, 262 NY 446, 448-449 [1933]; Matter of Adamczyk v
Mohr, 87 AD3d 833, 835 [2011], lv denied 17 NY3d 706 [2011];
compare Matter of Conti v Clyne, 120 AD3d 884, 886 [2014], lv
denied 23 NY3d 908 [2014]; Matter of Scaturro v Maloney, 76 AD3d
688, 690 [2010]). Moreover, by conceding that the address listed
on his designating petition is outside the 9th Legislative
District and that he did not, in fact, live in that district,
petitioner failed to demonstrate that he satisfied the residency
1
While the pro se petition indicates that it was filed
under CPLR article 78, Supreme Court converted it to a proceeding
pursuant to Election Law § 16-102 (see CPLR 103 [c]).
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requirements and, consequently, did not meet his burden of
demonstrating the validity of his designating petition (see
Matter of Schneeberg v New York State Bd. of Elections, 51 NY2d
814, 815 [1980]; Matter of Adamczyk v Mohr, 87 AD3d at 835).
Turning to petitioner's claim that his right to equal
protection was violated, we find that the one-year durational
residency requirement imposes a reasonable, nondiscriminatory
restriction on prospective candidates and voters that is
supported by a rational basis (see Matter of Adamczyk v Mohr, 87
AD3d at 834; see generally Matter of Dusch v Davis, 387 US 112,
115 [1967]; Matter of Walsh v Katz, 17 NY3d 336, 342-346 [2011];
Galbraith v New York Conservative Party, 155 AD2d 183, 185-186
[1990]). As a legislative enactment, the Albany County Charter
enjoys a strong presumption of constitutionality (see
Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20
NY3d 586, 593 [2013], cert denied ___ US ___, 134 S Ct 682
[2013]; LaValle v Hayden, 98 NY2d 155, 161 [2002]; Worthington v
London Guar. & Acc. Co., 164 NY 81, 84 [1900]), and petitioner
has not established that it violates his right to equal
protection. Further, the fact that the legislative districts
were redrawn in 2015 does not exempt petitioner from the
residency requirement (see Matter of Adamczyk v Mohr, 87 AD3d at
834-835; Matter of Reid v Richards, 89 AD2d 939, 939 [1982]).
Also unavailing is his related claim that it is improper that
only incumbents receive preferential treatment under Albany
County Charter § 202 following reapportionment in that they are
only required to become a resident of a newly drawn district
"prior to taking office" in certain circumstances where
redistricting impacted their respective residencies. Petitioner
has not shown that the redistricting had any impact on his
ability to satisfy the durational residency requirement. Thus,
his arguments have no bearing on the determination of the
validity of his designating petition. Petitioner's remaining
claims are also without merit.
Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court