
    In the Matter of Marie B. Bush, Respondent, v George D. Salerno et al., Respondents, and George R. Arney, Appellant.
    Argued September 3,1980;
    decided September 5,1980
    
      POINTS OF COUNSEL
    
      John M. Owens for appellant.
    I. The court lacked jurisdiction since the specifications were not filed within six days of the general objections. (Matter of Reis v Cohen, 240 App Div 854, 262 NY 705; Matter of Richter v Thaler, 33 Misc 2d 290; Matter of Margolis v Larkin, 39 AD2d 951, 30 NY2d 876.) II. Petitioner’s expert witness was erroneously permitted to render an opinion absent the court’s proper determination of his qualifications. (Anderson v Rome, Watertown & Ogdensburgh R. R. Co., 54 NY 334.) III. The testimony from the examination before trial should not have been admitted. (Adamo v Kirsch Beverages, 80 Misc 2d 369; Nicholas v Island Ind. Park 
      
      of Patchogue, 46 AD2d 804.) IV. The court below erred in shifting the burden of proof to respondent to establish that certain petition sheets were valid. (Matter of Civilette v Caccamise, 42 AD2d 1026; Schwartz v De Sapio, 9 AD2d 756; Matter of Burns; 199 Misc 1005, 278 App Div 1023.) V. The court should have allowed respondent to validate certain signatures which had been invalidated by the State Board of Elections. (Matter of Suarez v Sadowski, 48 NY2d 620.) VI. The petition sheets on which there was no evidence of irregularity should not have been invalidated. (Matter of Martano v Verdi, 32 NY2d 838; Matter of Quinones v Bass, 45 NY2d 811.)
    
      Thomas J. Spargo for Marie Bush, respondent.
    I. The objections and specifications of objections were timely filed with the State Board of Elections. II. The testimony of certain witnesses taken at an examination before trial was properly introduced into evidence. III. Appellant made no specific pleading in his answer to validate any signatures invalidated by the State Board of Elections. (Matter of Suarez v Sadowski, 48 NY2d 620.) IV. Petitioner established by a fair preponderance of the evidence that the questioned sheets were not properly authenticated and had been routinely and systematically altered after being submitted by the witnesses directly or indirectly to Donna Chittenden or Barbara Whitehead. (Matter of Perfetto v Doering, 28 AD2d 810; Matter of White v McNab, 40 NY2d 912; Matter of Marcatante v Lundy, 4 AD2d 883, 3 NY2d 913.)
   OPINION OF THE COURT

Per Curiam.

The courts below were without jurisdiction to pass upon the petition to invalidate the petition designating George R. Arney as a candidate for the Republican Party nomination for the office of State Senator, 52nd Senatorial District, because the specifications of objection to the petition were not filed within six days after the general objection was filed. The order of the Appellate Division should, therefore, be reversed and the proceeding dismissed and the State Board of Elections directed to place appellant’s name on the appropriate ballots.

The papers before us establish that Marie Bush by letter dated July 28, 1980, mailed to the State Board of Elections in an envelope postmarked July 28, 1980 and received by the board on July 31, 1980, objected generally to the Arney designating petition, and that by letter dated August 4, 1980, mailed in an envelope postmarked August 5, 1980 and received by the board on August 7, 1980, specifications of the objections were filed by Ms. Bush. While we have no transcript of the proceeding before the Trial Judge, there not being time for transcription, the parties have stipulated on argument before us that an objection to jurisdiction on the ground that the specifications had not been timely filed was made and was overruled by the Trial Judge. The Appellate Division briefs show that the point was argued there as well: We conclude that in failing to dismiss on jurisdictional grounds the courts below erred.

There can be no question that the failure to file specifications within six days after the filing of general objections is jurisdictionally fatal. Subdivision 2 of section 6-154 of the Election Law, both before and after the amendments effective December 1, 1978, expressly provided: "When such an objection is filed, specifications of the grounds of the objections shall be filed within six days thereafter * * * and if specifications are not timely filed, the objection shall be null and void.” Moreover, we have held under prior versions of the Election Law that the failure is jurisdictional (Matter of Maneiro v Northrup, 34 NY2d 963, 964; see Matter of Kavesh, 247 App Div 175; 18 NY Jur, Elections, §§ 375, 385).

Determination of when the six-day period begins to run thus turns on when the general objection is filed. Subdivision 1 of section 1-106 of the Election Law provides that "All papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received” and also that "If the last day for filing shall fall on a Saturday, Sunday or legal holiday, the next business day shall become the last day for filing.” Petitioner argues that the words "accepted for filing when received” require the conclusion that her objections were filed on July 31 when received rather than on July 28 when mailed. The history of the first quoted sentence shows the contrary. Prior to the revision of the Election Law by chapter 233 of the Laws of 1976 the first quoted sentence read "All papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be accepted for filing when received,” the words "deemed timely filed and” being inserted after "shall be” by chapter 233. Thus, prior to the 1976 amendment the sentence required acceptance when received as filed prior to the last day for filing, provided the envelope bore the required postmark. The use of the words "deemed timely filed” (italics supplied) in the 1976 amendment makes doubly clear that the filing referred to is on the postmarked date prior to the last day for filing, for if the actual receipt constituted the date for filing there would be no need to "deem” the filing timely; it would be timely because the statute expressly permitted late filing not because its filing was related back to the last day for filing by "deeming” it timely filed.

The rule for which petitioner contends would result in a multiplicity of filing deadlines and render meaningless the requirement of subdivision 2 of section 6-154 that specifications be filed within six days after objections. By the simple process of mailing his general objection the objector could extend his time to file specifications by the number of days between the mailing to and the receipt by the board of his general objection. Yet there is no need for such an extension, for an objector knows when he filed his general objection, and thus when his time to file specifications begins to run. Petitioner’s construction of the filing requirement could conceivably more than double the time for filing specifications depending on what the delay in mail delivery in a particular case happened to be.

That such was not the legislative intent is clear from the legislative history discussed in our decision in Matter of Carr v New York State Bd. of Elections (40 NY2d 556). In that case certificates of nomination for judicial office were filed 10 hours late. We reversed the Appellate Division’s order affirming the judgment of Special Term requiring the board to accept the certificate and dismissed the petition. In doing so we noted the prior judicial practice of permitting such errors to be corrected notwithstanding the mandatory language of the sentence in question, then part of section 143 of the Election Law. We then quoted from the Department of State memorandum concerning the 1969 amendment to the subdivision (NY Legis Ann, 1969, pp 249-250) the following language:

"The purpose of the election time-table is to establish an orderly progression of events culminating in the election of candidates to public office or party position. The mandatory nature of the provisions of the Election Law relating to the time for filing establishes the rules of the game, which should be applied to all with equal effect.
"The Legislature, in making the time limitations for filing mandatory, intended that such provisions be construed strictly. A liberal construction of such provisions would diminish their effect, resulting in confusion and inequality.
"The purpose of this bill is to overcome the trend of recent court decisions which have had the effect of impairing the mandatory nature of the time-table.
* * *
"It is therefore of paramount importance that it be made crystal clear that the time limitations for filing are mandatory”

and concluded that (40 NY2d, at p 559): "Section 330 of the Election Law vests jurisdiction in the Supreme Court to summarily determine any question of law Or fact arising in respect to the nomination of any candidate, same to be construed liberally and with a direction to courts to make such order as justice may require. These provisions, however, do not permit a court to ignore the statutory mandate of subdivision 12 of section 143 of the Election Law, since the explicit language of the later statute control over the general words of the earlier enactment (Gwynne v Board of Educ., 259 NY 191, 197; East End Trust Co. v Otten, 255 NY 283, 286), this being especially so in this instance where it is apparent that the Legislature enacted the later statute to make 'the time limitations provided therefor absolute and not a matter subject to the exercise of discretion by the courts.’ ”

Petitioner argues further that to hold that filing occurs on the date of mailing rather than the date of receipt may make it possible to forestall objection by simply filing a petition by mail in the hope that the three days in which to file a general objection will have run before the petition is received by the board. The short answer is that that situation is not before us. Moreover, Matter of Pell v Coveney (37 NY2d 494) suggests a remedy where it appears that the late receipt by the board of the petition has made it impossible for an objector to file his general objection within the required three-day period after filing, and, of course, the Legislature, if it sees fit to do so, may obviate the problem by amending either or both of the subdivisions in question. Whatever the solution to that problem may be, it constitutes no reason to ignore the specific legislative direction in section 6-154 as now worded that the grounds of objection be filed within six days after the general objection.

Since petitioner’s time to file her specifications began to run on July 28, 1980 when her general objection was mailed, her six days to file specifications expired on August 3, 1980. That, however, having been a Sunday, her time to file was extended by the second sentence quoted above to the next business day, August 4. In fact, however, as noted above, she mailed her specifications on August 5 and they were received August 7.

The specifications not having been timely received, the general objection was "null and void” (Election Law, § 6-154, subd 2) and the court was without jurisdiction to entertain the petition. It follows that the order of the Appellate Division should be reversed and the petition should be dismissed, with directions to the State Board of Elections as above noted.

Gabrielli, Jones and Wachtler, JJ.

(dissenting). We dissent and vote to affirm the order of the Appellate Division which determined that George R. Arney is not qualified to be a candidate for the primary election upon the ground that he has filed an insufficient number of valid signatures to permit him to be on the ballot. Special Term’s findings have been affirmed by an unanimous Appellate Division; and both courts below have determined that appellant Arney has an insufficient number of untainted signatures to qualify him as a candidate in the primary election to be held September 9, 1980. In effect, the majority holds that the State Board of Elections was without jurisdiction to entertain the objections to the Arney petitions, upon the ground that the specifications mailed and filed pursuant to law by the objector arrived at the Board of Elections on the seventh day following receipt by the board of the original objections.

Although the question of lack of jurisdiction was unanimously rejected by both courts below and, further, although the jurisdiction question was not fully briefed the majority has, nevertheless, reversed on this ground. In doing this they have validated petitions which although accepted by the Board of Elections were found by the lower courts, also with unanimity, to be tainted by "a general scheme or method of operation” which resulted in changes being made on the petitions after the subscribing witnesses had executed their statements.

The objector, in bringing these irregularities to the attention of the Board of Elections, was following a procedure which, as we have been advised by counsel, has long been accepted by the Board of Elections. Indeed, in this very case, the board advised the objector by mail to follow this procedure. Unfortunately, the critical issue has not been briefed as fully as would have been desirable and was reluctantly pursued by the parties and in the twilight hours shortly before the primary election.

More important they have invalidated a procedure long followed, as we are advised, by the Board of Elections heedless of the consequences and without allowing sufficient time to consider the consequences or to hear from the agency whose responsibility it is to administer the Election Law throughout the State. This is jurisprudentially unsound.

We cannot concur in the disposition reached by the court today. Based upon solid jurisprudential authority and procedure, we would prefer to follow the precedent established in another election case in somewhat similar circumstances, namely, on reconsideration to recall our determination of September 2, 1980 and deny the application for leave to appeal (cf. Matter of Taylor v McNab, 40 NY2d 821). Stare decisis and sound judicial policy ought to require such a disposition. In that connection and dealing with an election law matter just one year ago, we took pains to elevate stare decisis to the position which it deserves (Matter of Higby v Mahoney, 48 NY2d 15). The principle is no less valid today.

The majority disposes of this case on a jurisdictional ground involving the interpretation of a statute of broad application throughout the entire field of election law, with potentially far-reaching ramifications. Although it is true that the proposition which the majority today adopts was advanced in both courts below, it was rejected without any writing at nisi prius and was not addressed by the Appellate Division. As stated, what has proved to be the determinative issue was not fully developed before our court.

On such argument we were informed that it has been the uniform practice of the State Board of Elections to interpret that sentence of subdivision 1 of section 1-106 of the Election Law which reads in part that "[a]ll papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received” as prescribing that the date of . receipt of the mailing shall be the date of filing for purposes of computing periods of time thereafter within which related action under the Election Law is required to be taken. The record in this case discloses that on July 31, 1980 the Executive Director of the State Board of Elections advised Mary Bush, the objector in this case, that her objection to the designating petition of George R. Arney was received on July 31, 1980 and that "Specifications setting forth in detail the grounds of objections to said designation are required to be filed in this office no later than August 6, 1980.”

It may be that opportunity for deliberative consideration of the legislative history of this statutory provision, of the basis on which the State Board of Elections predicates its interpretation of the statute and of the practical consequences which may attend the court’s reading of the statute might possibly result in a varying interpretation. We are obliged to conclude, however, that the submission so far made to us provides the court with an insufficient jurisprudential basis on which to ground a considered determination, which is the obligation of this court. We are particularly handicapped by the circumstance that the State agency charged with responsibility for administration of the Election Law, a nominal party to the proceeding, has not furnished us with any expression of its views (cf. Matter of Howard v Wyman, 28 NY2d 434, 438). We are unwilling to overturn the interpretation placed on subdivision 1 of section 1-106 by the board upon the analysis tendered by the majority and without the benefit of such an expression by the board.

Nonetheless, and in view of the holding by the majority, we are required to proceed with what we each perceive to be the legal conclusions to be reached based upon the relevant statute and the papers submitted to us.

It is not and, indeed, cannot be disputed that objections were properly posted and mailed on July 28, 1980; that in accordance with the provisions of subdivision 2 of section 6-154 of the Election Law, these objections were accepted for filing on July 31, the date when they were received by the Board of Elections; that the required specifications were duly mailed by the objector on August 5 and were received by the Board of Elections on August 7.

No persuasive authority or precedent is cited to sustain the analysis offered by the majority. Indeed, none is available to them for the statutes governing these procedures and, indeed, the directive of the State Board of Elections to the objector unmistakenly and clearly provided that specifications were "required to be filed * * * no later than August 6, 1980”.

Section 1-106 of the Election Law provides, in pertinent part, that all papers required to be filed which are "sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received” (emphasis added). Put another way, papers are timely filed if postmarked prior to the expiration of the appropriate time period, but they are deemed to be actually filed for purposes of triggering time periods for subsequent filings on the date they are received, as clearly stated in the statute. Here the specifications were timely filed within the period prescribed by section 6-154 of the Election Law, they having been postmarked on August 5, but five days after the filing of objections on July 31.

Parenthetically, if section 1-106, applicable to all filings under the Election Law, is read to hold that papers are deemed actually filed on the day they are postmarked and then if the mail is delayed in delivery, the majority’s holding would or could well require that objections may have to be filed before the petitions are even seen by a potential objector. For example, section 6-154 requires that objections must be filed within three days of the "filing” of the petitions, and specifications must be filed within six days of the filing of objections. Upon the analysis of the majority, if the mail is delayed beyond three days, then objections would be required to be filed before the objector had any opportunity to view the material he was objecting to. Obviously, the Legislature could not have intended and indeed did not intend that an objector be expected to specify grounds for invalidating a petition before he was even given an opportunity to see the petition. This is precisely the problem the Legislature intended to prevent in its use of the words "when received” in section 1-106.

Section 1-106 of the Election Law also provides for filing of objections to petitions and/or specifications for the City of New York. We take pains to point out that the statute, for papers to be filed in New York City, specifically requires that papers "must be actually received by such city board of elections on or before the last day to file any such petition, certificate or objection”. It must be, and indeed is evident that had the Legislature intended that in the areas outside of the city specifications be actually received within six days of the filing of objections, the statute would have clearly so stated. The Legislature, for good and valid reasons, determined that the filing requirements for rural and up-State areas be governed by the quoted provisions of section 1-106 declaring that these documents, when filed as in this case, "be deemed timely filed and accepted for filing when received”.

The correct interpretation of section 1-106 and the appropriate time constraints in section 6-154 is vividly explained and documented by the directive of the State Board of Elections, sent to the objector in this case — your specifications must be filed within six days after our receipt of your objections.

The State Board of Elections is the agency (Election Law, § 3-100) which by statute is mandated and delegated to supervise the filings of all petitions, objections and specifications (Election Law, § 3-102, subd 1). Subdivision 1 of section 3-102 empowers the board to "issue instructions *' * * relating to the administration of the election process”. The clear interpretation by the board as noted in the directive and instructions in the above-quoted letter comports with legislative intent as previously noted. Importantly, not only is this directive by the board a correct interpretation of time limitations but, even if it were not we must also recognize that this explicit official notification led, or could have led, the objector to file the papers as she did in this case.

The majority unrealistically dismisses the problem of objections and specifications becoming due before the petition leaves the mailman’s hands. They suggest that the problem need not be considered because it is not before us today and because the Legislature could obviate the problem. We believe this could create a dangerous precedent. As the dissenter in another case suggested, the increasing demands upon a legislator’s time, the fact that a majority within a Legislature may have no opinion, and the realities of the legislative process militate against our relying on the Legislature to correct by piecemeal amendment an "erroneous decisional interpretation of an isolated section” (see Matter of Higby v Mahoney, 48 NY2d 15, dissenting opn, at p 28, supra).

For all the foregoing reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Fuchsberg and Meyer concur in Per Curiam opinion; Judges Gabrielli, Jones and Wachtler dissent and vote to affirm in a memorandum.

Order reversed, without costs, the petition** dismissed and the State Board of Elections directed to place appellant’s name on the appropriate ballots. 
      
       The dissent requires that we observe (1) that Matter of Taylor v McNab (40 NY2d 821) has no bearing on a jurisdictional question, (2) that the State Board of Elections is a party to this proceeding, but has not seen fit to appear and argue (cf. Matter of Butler v Hayduk, 37 NY2d 497, 499), (3) that the court in Matter of Higby v Mahoney (48 NY2d 15, 21, n 3) explicitly rejected the “novel proposition” that the need for “deliberative” consideration distinguished election cases from cases of other types as precedents, (4) that the parties have stipulated that the Trial Judge ruled on the jurisdictional objection from the bench, and (5) that the Board of Election’s error in its letter of July 31, 1980 is simply irrelevant since it cannot by interpretation expand the command of the statute. Matter of Farrell v Morton (268 NY 622) is exactly in point on the last observation.
     