The following e-filed papers read herein: NYSCEF Docket No.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1, 3, 14, 15-16 Opposing Affidavits (Affirmations) Reply Affidavits (Affirmations) 22-23, 27-28 Petitioners Phyllis Ellington, Janice Henderson, Jorge Muniz-Reyes, Ernestina Monteiro, David Stein, Aaron Ouyang, Naomi Rabeeya, David Goldberg, Eric Kun, Elana Ehrenberg, and William Vega (collectively petitioners) move, by way of an order to show cause and verified petition, seeking, in addition to other injunctive and declaratory relief, a declaration that Respondent Kings County Democratic County Committee’s (“KCDCC”) newly adopted amendment to Article III of the Rules of Government of the KCDCC conflicts with Election Law§2-112 and is null and void. KCDCC cross-moves for an order: (1) dismissing the verified petition pursuant to CPLR 3001 and 3017(b); CPLR 3211(a)(1), (2), (7), (8) and (10); and CPLR 1001. Petitioners are elected members of the KCDCC, having been elected at the Democratic Primary Election held on June 23, 2020. The KCDCC is comprised of members elected biennially in even numbered years from each Election District within Kings County. It is responsible for conducting all affairs of the Democratic Party organization of Kings County and exercises general authority over all committees within its jurisdiction.1 As a result of the COVID-19 pandemic, Governor Andrew M. Cuomo has issued multiple Executive Orders related to setting limits on in-person gatherings. These include, but are not limited to, Executive Order 202.1, issued on March 12, 2020, which limited any gathering or event anticipated to be fewer than five hundred people to 50 percent occupancy and Executive Order 202.3, issued on March 16, 2020, which modified Executive Order 202.1 to provide that “any large gathering or event…shall be cancelled or postponed if more than fifty persons are expected in attendance, at any location in New York State until further notice.” On July 3, 2020, Governor Cuomo issued Executive Order 202.47, which as relevant to the instant matter, states as follows: Notwithstanding any provision of law or a party’s rules to the contrary, any party caucus, party meeting or party convention held pursuant to the Election Law in the year two thousand twenty may be held by telephonic or video conferencing means in whole or in part at the discretion of the chairperson calling such meeting; provided, however, that any required notice shall include instructions to participants as to how to access such video teleconference. On September 29, 2020, the KCDCC Executive Committee2adopted an amendment (hereinafter, the amendment) to the Rules for the Government of the Kings County Democratic County Committee (“the Rules”). Specifically, Article III was amended to add a new section (§7), entitled “Emergency Provisions during COVID-19 Pandemic.” The amendment relates to the process for holding the KCDCC’s organizational meeting and any subsequent meetings, as well as the process for casting votes at said meetings. As pertinent to this action, the amendment included the following provisions: D…. The Chair [of the Executive Committee] shall not convene any meeting of the County Committee, in which the voting may occur, via teleconference or video teleconference to prevent the disenfranchisement of members of limited economic means and/or without access to the internet or smart phone technology. E. While the Election Law directs that the County Committee organization take place on or before October 7, 2020, such meeting shall be called by the Chair of the Executive Committee to be held in a public physical setting within 45 days after the Governor or the Mayor of the City of New York authorize public gatherings in excess of 500 persons. H. Until authorized to conduct a physical meeting to organize pursuant to [Election Law] §2-112(b) and this section, the members of the County Committee elected or deemed elected at the primary election held on June 23, 2020 shall be deemed seated and authorized to act as of the date of such organization or at midnight, October 7, 2020, whichever first occurs. I. This section shall expire upon the earlier of the public declaration that the COVID-19 pandemic has ended or the legal authorization for public meetings in excess of two thousand (2000) attendees to be convened within the City of New York. The stated purpose of this amendment was to: enable the organization and operation of the Kings County Democratic County Committee while achieving the greatest degree of social distancing, complying with state and local laws and orders limiting the size of public gatherings, sheltering in place and reducing exposure to mail depositories and mail carriers, while maintaining the integrity of its voting processes with transparency and public disclosure… The amendment specifies that these amended provisions “supercede the provisions of each and every rule set forth within these Rules and the corollary provisions of the Election Law.” Petitioners commenced the instant action arguing that the amendment of the Rules and cancellation of the County Committee organizational meeting is a violation of Election Law §2-112 (1) (b). Petitioners also sought a temporary restraining order, which was denied by this court on October 2, 2020, and seek permanent injunctive relief prohibiting and enjoining the KCDCC from adding any rules which create automatic proxy votes of County Committee members given to their District Leaders. Finally, petitioners seek a declaratory judgment pursuant to CPLR §3001, declaring: (1) that the KCDCC must hold an organizational meeting of the County Committee pursuant to Election Law §2-112 allowing for participation by all members virtually through video conference and telephonic conference, no later than October 30, 2020, with at least 5 days notice to all County Committee members of such meeting with instructions on how to participate through video conference and telephone conference; (2) that the elected members of the KCDCC are not considered “seated” unless an organizational meeting of the County Committee is held; (3) that the officer positions of the KCDCC have not been filled for the next term of the County Committee unless an organizational meeting of the County Committee is held and members of the County Committee vote for such officers; and (4) the amendment to Article III of the Rules with its addition of §7 is null and void in its entirety. KCDCC states, in its opposition and in support of its cross motion, that KCDCC’s amended rules comply with both the Executive’s Orders issued by Governor Cuomo and the Election Law. KCDCC seeks to dismiss the action on various grounds. Discussion The court initially finds that the KCDCC’s procedural arguments are without merit. Contrary to KCDCC’s assertion, the petition presents a justiciable controversy over which the court has subject matter jurisdiction. Petitioners’ requested relief is not limited to ensuring that they are seated, or limited to seeking the ability to change the KCDCC’s rule relating to sex parity for the members of the County Committee. Rather, petitioners seek the rights attendant to participating in an organizational meeting. Pursuant to the Election Law and KCDCC’s own Rules, this meeting is where the County Committee’s officers are elected, rules are adopted, vacancies are filled, and other such business is conducted (Election Law §2-112 [1]; Rules, Article III, §1). The court has subject matter jurisdiction over the controversy in that the holding of the organizational meeting is specifically required by Election Law §2-112 (1), and the failure to hold such a meeting, as discussed below, constitutes an irregularity within the meaning of Election Law §16-102 (see Matter of Ryan v. Grimm, 15 NY2d 921, 922-923 [1965]; Matter of Crawford v. Cohen, 291 NY 98, 102-103 [1943]; Matter of Auerbach v. Suffolk County Comm. of the Conservative Party, 171 AD3d 731, 737 [2d Dept 2019] [court will act to protect the rights of committee persons to be present and vote at meetings of the committee]; Matter of Klein v. Garfinkle, 12 AD3d 604, 605 [2d Dept 2004]; Matter of Mazur v. Kelly, 170 AD2d 1037, 1038 [4th Dept 1991]; see also Matter of Cox v. Spoth, 165 AD3d 1648, 1649 [4th Dept 2018]; Election Law 16-102 [2], [3]).3 KCDCC’s contention that the requested injunctive relief renders this special proceeding (CPLR Art. 4; Election Law §16-116) in some way defective because an injunction may only be requested in an “action” (see CPLR 6301) is without merit as the definition of an action encompasses a special proceeding (see CPLR 103 [b], 105 [b]). Moreover, to the extent that this proceeding was brought in an improper form, this court has the authority, in the interest of justice, to convert this special proceeding into an action (see CPLR 103 [c]; Matter of Quinn v. Cuomo, 183 AD3d 928, 930 [2d Dept 2020]). Indeed, as the requested declaratory relief is only cognizable in an action, the court exercises this authority, and converts the special proceeding into an action for a declaratory judgment and injunctive relief, and deems the order to show cause to be a summons, the petition to be the complaint and a motion for summary judgment on the complaint, and the opposition papers to be an answer and a cross motion for summary judgment dismissing the complaint and declaring the Executive Committee’s amendment to KCDCC’s rules valid (see Matter of Quinn, 183 AD3d at 930; Matter of Baba Makhan Shah Lobana Sikh Ctr., Inc. v. Singh, 115 AD3d 948, 950 [2d Dept 2014]). The court also finds that dismissal is not required by the failure to join the Executive Committee as a party. Under the rules of the KCDCC, the Executive Committee is an arm of the KCDCC, and, under the circumstances here, the interests of the Executive Committee are adequately represented by joining the KCDCC (see Matter of New York State Comm. of the Independence Party v. New York State Bd. of Elections, 87 AD3d 806, 811 [3d Dept 2011]; see also Matter of Cox, 165 AD3d at 1649; Matter of Marafito v. McDonough, 153 AD3d 1123, 1125 [3d Dept 2017]; Matter of Snell v. Young, 88 AD3d 1149, 1150 [3d Dept 2011]; cf. Matter of Master v. Pohanka, 44 AD3d 1050, 1052-1053 [2d Dept 2007]).4 Contrary to the KCDCC’s contention, the petition is also not barred by laches. In this respect, the amendment to the rules at issue was adopted by the Executive Committee on September 29, 2020, this proceeding was commenced only two days later, on October 1, 2020, and the KCDCC has failed to articulate how it has been prejudiced by any delay in instituting this proceeding (see Matter of Barabash, 31 NY2d 76, 81-82 [1972]; Selective Ins. Co. of Am. v. State of N.Y. Workers’ Compensation Bd., 102 AD3d 72, 76-77 [3d Dept 2012]; cf. Dao Yin v. Cuomo, 183 AD3d 926, 928 [2d Dept 2020]; Matter of Quinn v. Cuomo, 183 AD3d 928, 930-931 [2d Dept 2020]). The court now turns to that branch of petitioners’ order to show cause seeking to invalidate the rule amendment on grounds that it is unlawful and in violation of the Election Law. As noted above, the Executive Committee amended Article III of the Rules by adding a new section: “§7 Emergency Provisions During COVID-19 Pandemic” which states, as pertinent to this proceeding, that there shall be no County Committee meeting held via video teleconferencing or telephone conference. Petitioners argue that since a series of Executive Orders limit large in-person gatherings due to COVID-19 related health concerns, this new rule, which forbids a County Committee meeting from being held via video and/or telephonic conferencing, effectively cancelled/suspended the statutorily required organizational meeting of the County Committee in violation of Election Law §2-112 (1)(b). Petitioners further note that KCDCC’s cancellation of the County Committee meeting prevents the County Committee members from making nominations and electing new officers, and from proposing and passing new rules. Noting that the KCDCC has approximately 2,500 members, petitioners acknowledge the health risks posed by COVID-19 and that Executive Order 202.3 limiting large public gatherings prevents any live in-person County Committee meetings of more than 50 persons. However, petitioners argue that there is no justification for prohibiting a virtual meeting in whole or in part. In this regard, petitioners contend that the language of Executive Order 202.47, which gives the party chair “discretion,” pertains to whether the County Committee meeting would be “in whole or in part” in a virtual format, and does not empower the party chair to completely usurp Election Law §2-112 by cancelling/postponing the meeting. In addition, petitioners point out that other neighboring county committees, such as the Democratic County Committees in Queens and the Bronx, appear to have implemented some form of a video and/or teleconferencing platform to facilitate holding their respective organizational meetings. Therefore, petitioners argue that KCDCC’s rule amendment should be annulled in that it violates the Election Law and stifles the democratic process. In opposition, and in support of its cross motion to dismiss the petition, KCDCC argues that the Executive Orders issued by Governor Cuomo, which specifically limit the size of large in-person gatherings, authorizes its postponement of the County Committee meeting until further notice. In this regard, KCDCC points to Executive Order 202.1 [ordering the 30-day postponement or cancellation of "large gathering or event for which attendance is anticipated to be in excess of five hundred people"] (see EO 202.1); Executive Order 202.3 [modifying the large gathering order in Executive Order 202.1 to gatherings where "more than fifty persons are expected in attendance"] (see EO 202.3); and Executive Order 202.68, recently issued on October 6, 2020, in response to a spike in COVID-19 cases in certain areas of New York State, which, as relevant here, postpones or cancels any non-essential gatherings in certain areas delineated “red zones”5, limits non-essential gatherings in areas delineated “orange zones” to 10 people, and limits non-essential gatherings in areas delineated “yellow zones” to 25 people (see EO 202.68). KCDCC contends that its organizational meeting has merely been “postponed” temporarily, and that its amendment is in compliance with the Executive Orders limiting large in-person gatherings. KCDCC additionally argues that the amendment conforms with the legislative intent of Election Law §2-112. It also expresses its concern that conducting the County Committee meeting in a virtual format would prevent some members from meaningful participation due to lack of internet and/or smart phone devices. KCDCC further contends that there is no virtual platform that can accommodate these meetings in a meaningful way in accordance with democratic principles. “[I]t is firmly established that except where expressly governed by legislation, the internal organization and authority of a political party is governed by the party rules” (Matter of Donnelly v. Curcio, 284 AD2d 460, 460 [2d Dept 2001]; see In the Matter of Independence Party State Committee of the State of New York, v. Berman, 28 AD3d 556, 558 [2d Dept 2006]; Matter of Bachmann v. DeFronzo, 164 AD2d 926, 928 [2d Dept 1990]; Election Law §2-114). In addition, courts have consistently held that “[i]nternal issues arising within political parties are best resolved within the party organization itself and judicial involvement should only be undertaken as a last resort” (Matter of Bachmann v. Coyne, 99 AD2d 742, 742 [2d Dept1984]; see Bloom v. Notaro, 67 NY2d 1048, 1049 [1986]). However, while political parties are afforded wide latitude in adopting rules for party governance, such rules cannot conflict with statutory directives (see Matter of Kahler v. McNab, 48 NY2d 625, 626 [1979]; Matter of Independence Party State Comm. of the State of New York, 28 AD3d at 558; Keukelaar v. Monroe County Bd. of Elections, 307 AD2d 1073, 1074 [4th Dept 2003]; Matter of Bachmann v. DeFronzo, 164 AD2d at 928]). Article Two of the Election Law provides the time frames and mechanisms required for party organization. Election Law §2-104 provides for the creation of a county committee by election, and Election Law §2-106 provides for the election of county committee members at a primary election. Pursuant to the Election Law, once elected, the county committee must meet and organize for the purpose of adopting rules and electing officers (see Election Law §§2-112, 2-114). Specifically, Election Law §2-112 (1) (b) provides, in relevant part, that “[e]very county committee shall meet no earlier than September seventeenth and no later than October sixth following the June primary. Until such organization meeting, the existing county committee shall exercise all legal authority. Upon the conclusion of such organization meeting, the new county committee shall assume all legal authority vested in the previously organized county committee.” (Emphasis supplied) Thus, pursuant to this provision, after the June 23, 2020 primary election, KCDCC was required to hold an organizational county committee meeting, at the earliest, on September 17, 2020, but no later than October 6, 2020. No such meeting took place. Instead, on September 29, 2020, seven days before the statutory deadline to hold a meeting, the Executive Committee amended the KCDCC Rules, as relevant here, by prohibiting any meetings held via video teleconferencing or telephone conference. The court finds that this amendment conflicts with Election Law §2-112 (1)(b) in that its prohibition against holding meetings via video and teleconference effectively prevents KCDCC from holding any committee meeting given the current COVID-19 related restrictions on large in-person gatherings. KCDCC’s contention that the meeting is merely postponed temporarily until the COVID-19 restrictions on large public gatherings are lifted is unpersuasive. While COVID-19 and all the related health/safety precautions/restrictions may have initially appeared to be a temporary interruption, the reality is that this pandemic is now in its ninth month, with no readily discernable time frame as to when it will end. Under these circumstances, KCDCC’s contention that its postponement of the meeting is only temporary is pure speculation, and, in fact, belied by current COVID-19 medical/scientific data.6 Thus, in light of the COVID-19 restrictions in place with respect to large gatherings, the court finds that KCDCC’s amendment barring video and teleconferencing effectively thwarts the ability to hold any county committee meeting indefinitely, which clearly conflicts with Election Law §2-112 (1) (b) (see Grancio v. Coveney, 60 NY2d 603, 605 [1983] [Conservative Party rule held invalid where it was more restrictive than Election Law §6-120]; Conroy v. State Comm. of Indep. Party of New York, 43 AD3d 832, 833 [2d Dept 2007] [court upheld annulment of amendment to state committee rules which directly contravened Election Law §2-116]; Terenzi v. Westchester Cty. Comm. of the Conservative Party of New York State, 171 Misc. 2d 93, 96 [Sup. Ct. Westchester County 1996] [court annulled amendments which added qualifications for party offices in contravention of Election Law §2-112]; Matter of Hammer v. Curran, 203 Misc 417, 422 [Sup Ct, Albany County 1952] [holding that a rule adopted by a County Committee "imposing upon the eligibility of candidates for membership limitations more restrictive than the statutory provision is invalid"]). Nor does the court interpret Executive Orders 202.1, 202.3, and 202.68, which specifically limit the size of in-person gatherings, as authorizing KCDCC’s indefinite suspension of the County Committee meeting required under Election Law §2-112 (1) (b). Article 2-B of New York’s Executive Law gives a governor the authority to, inter alia, suspend and/or modify local and state laws (see Executive Law §29-a [1]). In order to do so, however, a governor is required to “specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension” (Executive Law §29-a [2] [c]; see Seawright v. Bd. of Elections in City of New York, 35 NY3d 227, 234 [2020]; Matter of Council v. Zapata, 183 AD3d 678, 681-682 [2d Dept 2020], lv denied 35 NY3d 904 [2020]). Although various restrictions related to the COVID-19 pandemic have clearly impacted the way in which Election Law matters are conducted (see e.g. Executive Order 202.2 [March 14, 2020] reducing the number of signatures required for designating petitions]; Executive Order 202.7 [March 19, 2020] [notaries permitted to use "audio-video technology"]; Executive Order 202.58 [August 24, 2020] [allowing the potential for contraction of the COVID-19 virus as an illness for purposes of request or receipt of an absentee ballot]), none of the above-referenced Executive Orders (EO 202.1, 202.3, and 202.68) specify that the dictates of Election Law §2-112 are suspended (see Matter of Council, 183 AD3d at 681-682). Rather, the Executive Orders restricting large gatherings, when read in conjunction with Executive Order 202.47, which permits “telephonic or video conferencing” as a means for holding such party meetings, clearly demonstrate that such measures were intended to merely modify the means of complying with Election Law §2-112 in response to the unique and difficult circumstances presented by COVID-19. Further, contrary to KCDCC’s contention, the plain language of Executive Order 202.47 gives the chairperson calling the meeting the discretion to choose amongst alternative means of holding such meeting, including the electronic means provided therein. This language does not give the chairperson the broader discretion to postpone the meeting. KCDCC cannot simply postpone/suspend holding the committee meeting indefinitely when there are other viable means in which they could conduct such meeting.7 Additionally, KCDCC’s contention that the amendment is necessary to prevent disenfranchising members who may lack internet access or smart phone technology is somewhat disingenuous. While the court recognizes the need to protect and safeguard those members who face technological challenges, the amendment in fact has the contrary impact of disenfranchising all of KCDCC’s members, a vast majority of which probably do have internet access and would be able to participate in a virtual committee meeting. Public policy weighs in favor of ensuring that the majority of KCDCC’s members are afforded the opportunity to meet and organize. In addition, the court notes that other remedies could be fashioned to address the inequalities which may exist in proceeding with a meeting via a virtual format (in whole or in part). In this court’s view, KCDCC’s purported justification for postponing the committee meeting indefinitely is merely a ruse for the leadership of the Executive Committee to retain their authority, and is insufficient to insulate KCDCC from its obligation to comply with the Election Law mandate of holding such meeting (see Election Law §2-112[1][b]). Indeed, the ability of a democracy to function at the local level lies in the power of the county committee members being afforded the opportunity to meet and organize for the purpose of electing officers, adopting rules and changing its leadership. Conclusion Based upon the foregoing, it is hereby ORDERED that the petition is granted to the extent that the court declares that the amendment to Article III of the Rules, §7 is hereby annulled to the extent that it conflicts with Election Law §2-112; and it is further ORDERED that an organizational meeting of the County Committee of the KCDCC shall be conducted by any of the means authorized by Executive Order 202.47 within 45 days of service of a copy of this order with notice of entry; and it is further ORDERED that KCDCC’s cross motion is denied. This constitutes the decision, order and judgment of the court.
