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An Appeals Panel Tossed Out Three Rulings By The Lower Court Along With Clarkstown’s Term Limit Law
By Tina Traster
Unless the New York Court of Appeals overturns a decision posted today by the Second Department, Supervisor George Hoehmann will be on the ballot in November. An appellate panel in the Second Department overturned three lower court rulings that had upheld the Town of Clarkstown’s term limit law. The term limit law barred Hoehmann from running for Town Supervisor in November.
The decision entered late Monday evening has already been appealed to New York’s highest court, the New York State Court of Appeals in Albany, but the Court of Appeals has no obligation to hear the case.
The stunning decision essentially said that the failure to hold a mandatory referendum back in 2014 rendered the term limit law invalid.
“Where a referendum is required, but is not held, the local law is invalid,” according to the ruling by the appellate panel. “Here, the intervenors do not dispute that the enactment of Chapter 263 was subject to a mandatory referendum.”
In 2014, the Clarkstown town council voted to adopt a term limit law, restricting elected officials to eight consecutive years in office. However, the appellate court said this law should have been subjected to a public referendum. Further, the panel said, “the inclusion of a provision requiring a supermajority to repeal the law curtails the power of elective officers.” Such a provision, binding the hands of future lawmakers and limiting their ability to repeal the law by a simple majority supported invalidating the law.
This was one of the arguments Robert Spolzino had brought before Justice Amy Puerto in Rockland County Supreme Court. Puerto three times ruled that the term limits law was valid, and that a challenge to it was time-barred because any defect in its passage was procedural in nature.
But the appellate court disagreed and viewed the issue as a substantive one and not limited by the statute of limitations.
“Chapter 263 is substantively invalid on its face because the supermajority requirement continually curtails the power of a local officer to act,” said the appellate court opinion. This refers to the town council’s ability to repeal local laws by simple majorities.
In the oral argument, it became clear that the appeals panel was focused on the rights of voters and the harm caused by the statute, rather than how it was passed. Though they pondered Intervenor Attorney Daniel Szalkiewicz’ argument that existing precedent required affirming Puerto’s orders, the court distinguished that precedent, and said the precedent he relied on involved issues other than the substantive right to vote.
In a dissenting opinion, Justice Cheryl Chambers argued for affirming Judge Puerto’s rulings, cautioning the Court not to confuse procedural errors in how a law is passed with the substantial or significant harm the law may cause later on. She also said that there was nothing about the supermajority that ran afoul of the law that required “at least” a majority of the council to pass a local law.
“This case affects the rights of the future town board and the public and the sanctity of the right to vote,” the majority opinion says.
In April, Hoehmann filed a nominating petition to run for Town Supervisor in the upcoming June 27 primary.
Puerto had previously upheld the validity of Clarktown’s term limits law. In the first case filed by Hoehmann, the judge dismissed his petition challenging term limits. In the second case that Puerto ruled on in early April, she invalidated the town’s repeal of term limits because the Town did not have a four-vote super-majority as required by the code. In a third case, she ruled Hoehmann ineligible to run and had his name struck from the ballot.
Order Dismissing Ugell/Garvey Petition Reversed On Appeal
In yet another case that will impact the Clarkstown race, the appellate court last week overruled Justice Paul Marx’s order to invalidate the petition filed by Town Justice Scott Ugell, that would have allowed Republican County Chairman Lawrence Garvey to run in the June primary in Ugell’s stead. Garvey’s place on the ballot was a backup to insure there was a Republican candidate in the event that Hoehmann lost his appeal.
The panel rejected Marx’s ruling that Ugell was ineligible to run for supervisor as a sitting justice and said that there was a lack of evidence to show fraud had been committed. Ugell had declined the ballot spot for supervisor before the court case had been filed by two Democrats.
In what is certainly going to be known as the whiplash election season in Clarkstown’s, Clarkstown Democrat Justin Sweet, the town clerk, will now likely not run unopposed for Town Supervisor in November.