DiCaprio v. Kosiur

Mercure, J. (dissenting).

We respectfully dissent. The rule at issue—article VI, section 2 of the Rules of the New York State Committee of the Independence Party—grants the state executive committee of that party the power to make nominations for public office to be filled at a special election. It contains two separate proviso clauses permitting nomination to be made at the county level—first, where the elective office “fall[s] within a county” that has an Independence Party county committee and that committee has rules for filling vacancies; and second, where the public office falls within more than one county and each county has an Independence Party county committee with rules for filling vacancies and those rules are the same. While we agree with the majority that the second proviso clause is inapplicable here, it must be noted that the provisos operate as exceptions to the general rule—they do not modify each other (see McKinney’s Cons Laws of NY, Book 1, Statutes § 212, at 371 [“The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it and does not, in the absence of a manifestly shown intent, extend to or qualify other sections or portions of the statute”]). Thus, it is simply irrelevant to an analysis of the first proviso clause to note—as the majority and respondents do—that the second clause does not apply here; the inapplicability of the second clause does not automatically render the first clause applicable.

In our view, the critical point to be emphasized is that the proviso clauses are exceptions to the general rule. As such, they “must be strictly construed . . . [to] extend only so far as their language fairly warrants, and all doubts should be resolved in *871favor of the general provision rather than the exception” (McKinney’s Cons Laws of NY, Book 1, Statutes § 213, at 372-373). The majority does just the opposite. Relying on the fact that the first proviso clause uses the phrase “falls within a county,” rather than “falls wholly or exclusively within a county,” the majority interprets the first proviso clause broadly to conclude that it must apply here. The rule, however, does not contain the phrase “falls partially within a county” either—a phrase that the majority effectively reads into the rule in finding the first exception applicable here. This interpretation both violates the rules of construction noted above and improperly renders the second proviso clause superfluous (see McKinney’s Cons Laws of NY, Book 1, Statutes § 231; see also Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998])—any time an elective office falls within two counties that have both elected committees, it will “fall [partially] within a county which has elected an Independence Party county committee.” If the majority’s interpretation were correct, there would simply be no need for the second exception to the general rule.

We would limit the rule to its terms. The elective office at issue here does not “fall within a county,” as the rule requires on its face; rather, it falls within two counties. Construing the first proviso clause narrowly, the exception contained therein is thus inapplicable here. Such a result is not only consistent with principles of statutory interpretation, but also prevents absurd results. For example, if Montgomery County did have a county committee with different rules from that of the Schenectady County Committee, the second exception would not apply. In such circumstance, under the majority’s interpretation of the rule, nothing would prevent either committee from arguing that the first exception applied, thus raising the possibility of different county committees nominating different candidates for the same office. Moreover, while the procedural posture of this case would result in the nullification of the nomination made by the Schenectady County Committee without providing Montgomery County Independence Party members a greater opportunity to participate if petitioners’ interpretation is adopted, that interpretation also prevents the Schenectady County Committee from imposing its will upon Montgomery County Independence Party members simply because the members in the latter county have not chosen to elect a county committee.

In short, because neither exception to the general rule is applicable here, we would vote to reverse and grant the petition.

Carpinello, J., concurs. Ordered that the order is affirmed, without costs..