A State Supreme Court Justice yesterday ruled in favor of the Suffolk County Board of Elections in a lawsuit challenging the board’s decision to invalidate the designating petitions of Republican assembly candidate Mike Yacubich.
Gary Donoyan, attorney for Yacubich, said today he is already working on an appeal of the trial court’s decision.
Justice John Leo found in favor of the Board of Elections on one of three claims made by Yacubich — enough to keep the candidate off the ballot in the Sept. 13 primary election.
Leo ruled that Yacubich failed to prove that his use of the nickname “Mike” did not confuse people signing his petitions or the Board of Elections itself.
Yacubich and his son are both named Michael and both are registered to vote as Michael — though with different middle initials — at the same address in Shoreham.
“A designating petition is not invalid because a candidate uses a familiar form of a proper name … unless it would mislead the voters or lead to confusion of the BOE,” Leo wrote. But the burden is on the person challenging the board’s decision to invalidate petitions to establish that there was no confusion, he wrote. The standard of proof is by “clear and convincing evidence,” Leo wrote. “Documentary evidence alone is not sufficient.”
Yacubich did not present testimony of any of the signers on his petitions to show that they were not confused. While Yacubich said he is known in the community as “Mike” and his son is known as “Michael,” four of the six witnesses to his petitions testified that they called Yacubich’s son “Mike” or “Mickey,” according to the court. Yacubich’s “witnesses lent support to the premise that confusion existed,” the court ruled.
Yacubich did not communicate to the Board of Elections that he wished to use the name “Mike” on the ballot, the court said.
Commissioner of Elections Nick LaLota testified that he was confused by Yacubich’s petitions. LaLota is the Republican commissioner of elections; he serves with his Democratic counterpart Commissioner Anita Katz.
The court ruled in favor of Yakubich on two other claims he raised challenging the Board of Elections decision invalidating his petitions.
First, the court ruled that Yacubich adequately described the office being sought.
Second, the court ruled that the verifications of the candidate’s petitions were sufficient.
The court did not rule on Yacubich’s claim that the Board of Elections violated the Open Meetings Law in its conduct of the Aug. 3 meeting at which it invalidated his petitions. It set an Oct. 1 scheduling hearing on that claim.
Meanwhile, attorney Donoyan is preparing an appeal to the Supreme Court’s Appellate Division. It will be heard by an appellate division panel on an expedited basis.
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