The Matter of Steven Glickman v. Zackary Laffin , 27 N.Y.3d 810 ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 187
In the Matter of Steven Glickman,
Respondent,
v.
Zackary Laffin et al.,
Appellants,
et al.,
Respondents.
(Proceeding No. 1.)
(And Another Related Proceeding.)
---------------------------------
In the Matter of Zackary Laffin
et al.,
Appellants,
v.
Steven Glickman,
Respondent,
et al.,
Respondents.
(Proceeding No. 3.)
John J. Ciampoli, for appellants.
Kamran F. Hashmi, for respondent Glickman.
PER CURIAM:
The primary issue presented by this appeal is whether
Steven Glickman, a candidate for the office of State Senator,
satisfies the State Constitution's five-year residency
requirement pertaining to candidates for legislative office. We
conclude that Glickman's 2014 registration to vote in Washington,
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D.C. precludes him, as a matter of law, from establishing
continuous residency in New York within the meaning of the
Constitution, and therefore reverse.
In these proceedings, Glickman seeks an order
validating designating petitions naming him as a candidate for
New York State Senator for the 55th Senate District in the
Working Families and Democratic Parties in the September 13, 2016
Primary Election. Objectors -- Zackary Laffin, John D. Moffit,
Jr. and Silvio Palermo -- seek to invalidate the same designating
petitions. In particular, objectors maintained that Glickman
failed to meet both the five-year New York State residency
requirement and the one-year Senate District residency
requirement for Senate candidates (see NY Const, art III, § 7).
Supreme Court held an evidentiary hearing, at which the
parties presented evidence that Glickman had resided at his
father's house in Tonawanda, New York prior to leaving for
Maryland in 2007, where he attended college and graduate school.
During the time period in question, he returned to his father's
house multiple times each year. Glickman continued to use the
Tonawanda address on his driver's license, kept personal
belongings at his father's house and received bills at that
address. He also stored his vehicle in the garage at his
father's home. Glickman maintained his membership in his New
York synagogue during this time, and kept his New York doctor and
dentist.
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In October 2013, Glickman moved to Washington, D.C.,
where he lived in a "community organizer's house." He obtained
employment on a yearly contract basis with a consulting firm and
as a part-time high school teacher. In November 2014, Glickman
registered to vote in Washington, D.C. Shortly thereafter, in
March 2015, he moved back to his father's home in Tonawanda,
where he registered to vote in May 2015. Glickman moved to
Milburn Street in Rochester, located within the 55th Senate
District, in October 2015. At the hearing, he produced two
consecutive leases, as well as cable and utility bills, asserting
that he lives at that location.
In October 2015, Glickman registered to vote at the
Milburn Street address. The following month, he filed a voter
registration form stating that his residential address was
Loderdale Road in Rochester. The Loderdale Road address, which
is apparently his father's girlfriend's home, is not within the
55th Senate District. In January 2016, Glickman filed yet
another voter registration form, changing his residential address
back to Milburn Street.
Supreme Court granted the objectors' petition seeking
an order invalidating the designating petitions, denied
Glickman's petitions seeking an order validating the designating
petitions and invalidated the petitions. The court concluded
that Glickman's 2014 registration to vote in Washington, D.C.,
and his attempt to cast a vote in that jurisdiction, prevented
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him from meeting New York's five-year constitutional residency
requirement as a matter of law. However, the court went on to
hold that, in the event the Washington, D.C. voter registration
was not conclusive on the issue of residency, objectors had
failed to establish that Glickman lacked a bona fide New York
residence for the mandatory five years.
Supreme Court also determined that objectors failed to
establish that Glickman did not reside within the Senate District
for the 12-month period preceding the election. The court
credited Glickman's testimony that he did not intentionally
change his voter registration to Loderdale Road. The court
further observed that Glickman never attempted to vote at the
Loderdale Road address and that he had changed his registration
back to Milburn Street as soon as he discovered the error.
The Appellate Division reversed, on the law and the
facts, and validated the petitions (__ AD3d __, 2016 NY Slip Op
05841 [3d Dept 2016]).1 The court held that the mere act of
registering to vote in another jurisdiction did not, as a matter
of law, preclude Glickman from selecting New York as his
electoral residence. The court concluded that, based on all of
the facts and circumstances, Glickman had legitimate and
1
The Appellate Division dismissed objectors' cross appeal
for lack of aggrievement and reviewed their arguments in support
of affirmance on the candidate's appeal to that court. Objectors
do not challenge the dismissal of their cross appeal, but raise
those arguments on their appeal to this Court from the Appellate
Division order of reversal.
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continuing attachments to this State and that the objectors
failed to establish by clear and convincing evidence that
Glickman did not meet the constitutional residency requirement.
The court also addressed the one-year residency requirement and
concluded that objectors had failed to establish that Glickman
had resided outside of the Senate District at any point after
October 2015. The court deemed Glickman's testimony, that the
change in registration had been inadvertent, credible.
Two Justices dissented and would have affirmed. The
dissent concluded that the act of registering to vote in
Washington, D.C. demonstrated Glickman's choice to use that
jurisdiction and severed any claim of continuous residency in New
York for electoral purposes. The dissent further observed that,
even if the act of registration was insufficient on its own,
there was clear and convincing evidence that Glickman did not
satisfy the five-year residency requirement.
Objectors appeal and the appeal lies as of right
pursuant to CPLR 5601 (a).
According to the State Constitution, "[n]o person shall
serve as a member of the legislature unless he or she is a
citizen of the United States and has been a resident of the state
of New York for five years, and . . . of the assembly or senate
district for the twelve months immediately preceding his or her
election" (NY Const, art III, § 7). One's "residence" is defined
by the Election Law as "that place where a person maintains a
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fixed, permanent and principal home and to which he [or she],
wherever temporarily located, always intends to return" (Election
Law § 1-104 [22]).
Residency is generally a factual question, dependent
upon the particular circumstances presented (see Matter of
Newcomb, 192 NY 238, 250 [1908]). The party bringing the
challenge has the burden of establishing the failure to meet the
constitutional residency requirements by clear and convincing
evidence (see Matter of Weiss v Teachout, 120 AD3d 701, 702 [2d
Dept 2014]).
An individual can have more than one residence and, for
Election Law purposes, "may choose one to which [he or] she has
'legitimate, significant and continuing attachments'" (People v
O'Hara, 96 NY2d 378, 385 [2001], quoting Matter of Ferguson v
McNab, 60 NY2d 598, 600 [1983]). The "crucial determination" for
electoral residency purposes "is that the individual must
manifest an intent, coupled with physical presence 'without any
aura of sham'" (O'Hara, 96 NY2d at 385, quoting Matter of
Gallagher v Dinkins, 41 AD2d 946, 947 [2d Dept 1973], affd 32
NY2d 839 [1973]). "Generally, where there is no reason to assume
that a residence has been asserted merely for the purposes of
voting, where no fraud or deception has been practiced and where
there is a history of the residence employed, the courts have
upheld a fact-finder's determination of residency" (O'Hara, 96
NY2d at 385).
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We have previously held that, in order to satisfy the
constitutional residency requirement, the candidate must reside
in this State for the five years immediately prior to the
election (see Matter of Bourges v LeBlanc, 98 NY2d 418, 420
[2002]).2 The issue in Bourges was whether the five years of New
York residency had to be continuous. We held that it did,
observing that, according to the record of the 1938
Constitutional Convention, the intent behind the residency
requirement was to "ensur[e] that legislative representatives
have contemporaneous familiarity and involvement with the issues
facing the state and the community they represent" (98 NY2d at
420).
In Matter of Thompson v Hayduk (45 AD2d 955 [2d Dept
1974], affd without opn 34 NY2d 980 [1974]), we upheld the
invalidation of a designating petition based on the candidate's
failure to meet the constitutional 12-month residency
requirement. The Appellate Division observed that the candidate
established that he had registered to vote and had voted in Bronx
County. The Court then concluded that the candidate "may not now
be heard to claim that he was actually a resident of Westchester
County[, where he sought election,] during that period" (45 AD2d
at 956).
2
As noted by Supreme Court, the parties have stipulated
that the five-year residency requirement should be measured from
when the term of office will begin, while the one-year residency
requirement should be measured from when the vote is held.
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Applying these principles, and based on the particular
circumstances of this case, we conclude that Glickman lacked the
requisite intent to establish residency for the five years
required by our Constitution. A person is permitted to have more
than one residence, but is not permitted to have more than one
electoral residence. Under the Washington, D.C. law, a
"qualified elector" is defined, in part, as one who attests that
he or she "[h]as maintained a residence in the District for at
least 30 days preceding the next election and does not claim
voting residence or right to vote in any state or territory" (DC
Code §§ 1-1001.02 [2] [C]; 1-1001.07 [a] [2]). Thus, when
Glickman registered to vote in Washington, D.C., he was required
to attest that Washington, D.C. was his sole electoral residence
and that he did not maintain voting residence in any other state.
These factors clearly demonstrate that Glickman broke the chain
of New York electoral residency which did not recommence until he
registered to vote in New York in 2015. Thus, he cannot claim
New York residency for the past five years as required by the
State Constitution, and Supreme Court properly invalidated the
designating petitions on that basis.
In light of this determination, it is unnecessary to
address objectors' remaining contention.
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be reversed, without costs, and
the order of Supreme Court reinstated.
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* * * * * * * * * * * * * * * * *
Order insofar as appealed from reversed, without costs, and order
of Supreme Court, Albany County, reinstated. Opinion Per Curiam.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam,
Stein, Fahey and Garcia concur.
Decided August 23, 2016
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