This claim challenges the fact that claimant and other similarly situated
voters who are not enrolled in a political party are not permitted to vote in
primary elections. Election Law §8-302 provides that only enrolled
members of a party may vote in that party's primary elections. Defendant has
moved to dismiss the claim on the grounds that this Court does not have
jurisdiction to hear it and, in addition, that the claim was not properly served
on the Attorney General. Since the procedural issue could be dispositive, it
will be considered first.
In the claim, claimant alleges that the cause of action accrued on April 29,
2002 at 4:24 p.m. at the Ulster County Board of Elections (claim, ¶¶ 3
and 4). He does not describe what event occurred at that time to trigger the
accrual of a claim against the State, but there is no other date identified that
could be an alternative date of accrual. The following day, on April 30, 2002,
the Office of the Attorney General was personally served with a document
captioned "Notice of Intent To File A Claim" (Arnold affirmation, Exhibit A).
This document indicated that claimant was represented by the law firm of Galvin
& Morgan. A month later, on May 3, 2002, a duplicate copy of this document
was faxed to the Attorney General (id.
In early June of that year, defense
counsel spoke with claimant's attorney and was told that the document was
intended to be a notice of intention to file a claim, not a claim (id.
Exhibit C [confirming letter]). It was not until October 29, 2002 that claimant
filed a claim with the Court of Claims. The document filed with the Clerk of the
Court appears to be identical to the ones served on and faxed to the Attorney
General, with the exception that the name of the law firm representing claimant
has been removed and the statement "case is being transferred to new law firm"
inserted in its stead.
The gravamen of the claim is that the provision of the Election Law cited above
is unconstitutional, relying on a United States Supreme Court decision,
Tashjian v Republican Party of Connecticut (479 US 208 ), which
held that a state statute preventing the political parties from opening their
elections to unaffiliated voters was unconstitutional; see also, State
Comm. of the Independence Party of New York v Berman, 294 F Supp 2d 518
[SDNY 2003][similar holding] ). Since such a claim would not be an action
for appropriation, wrongful death, negligence/unintentional tort, or intentional
tort, the applicable time limitation found in section 10 of the Court of Claims
Act would be subsection (4), which governs contract claims and "any other claim
not otherwise provided for by this section." That subsection requires that the
claimant file and serve a claim or serve a notice of intention within six months
after accrual of the claim and, if a notice of intention is employed, to file
and serve the claim within two years after the accrual.
Dismissal is required, however, on defendant's alternative ground. The Court
notes that, as a general proposition, the Court of Claims does not have
jurisdiction over challenges to the constitutionality of statutes, even if such
a determination is necessary to resolve a claim for money damages against the
State (Matter of Markham v Comstock, 272 AD2d 971 [4th Dept 2000],
appeal dismissed 95 NY2d 886, cert denied 531 US 1079; Shields
v Katz, 143 AD2d 743 [2d Dept 1988]; Zimmerman v State of New York,
116 Misc 2d 521 [Ct Cl 1982]). Here, there is not even a necessarily related
demand for money damages associated with the claim; the monetary amounts that
claimant seeks are in the form of a penalty to be imposed "until all of
approximately 2.2 million registered independent non-enrolled voters are
individually contacted and informed that registered independent non-enrolled
voters do in fact have the legal and constitutional right to be invited to vote
in any primary election of a party" (claim, ¶5). Claimant is actually
seeking equitable relief, consisting of a direction to State officials to
perform some actions. Such relief may be obtained only by an article 78
proceeding commenced in Supreme Court (Safety Group No. 194 v State of New
York, 2001 WL 939747 [Ct Cl 2001], aff'd 298 AD2d 785 [3d Dept
Defendant's motion is granted, and Claim No. 106847 is dismissed.
1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, Esq.,
AAG, with annexed Exhibits;
2. Affidavit in Opposition of H. William Van Allen, Pro Se;
Filed papers: Claim