Board of Ed. of Tuxedo Union Free School Dist. No. 3 of Towns of Tuxedo and Warwick v. State Division of Human Rights

• Decision Date: 11 February 1972
• Citation: 68 Misc.2d 1035,330 N.Y.S.2d 274
• Parties: , 4 Fair Empl.Prac.Cas. (BNA) 752, 4 Empl. Prac. Dec. P 7883 The BOARD OF EDUCATION OF the TUXEDO UNION FREE SCHOOL DISTRICT NO. 3 OF the TOWNS OF TUXEDO AND WARWICK et al., Plaintiffs, v. The STATE DIVISION OF HUMAN RIGHTS et al., Defendants.
• Court: New York Supreme Court

Page 274

330 N.Y.S.2d 274

68 Misc.2d 1035, 4 Fair Empl.Prac.Cas. (BNA) 752,

4 Empl. Prac. Dec. P 7883

The BOARD OF EDUCATION OF the TUXEDO UNION FREE SCHOOL DISTRICT NO. 3 OF the TOWNS OF TUXEDO AND WARWICK et al., Plaintiffs, v. The STATE DIVISION OF HUMAN RIGHTS et al., Defendants.

Supreme Court, Westchester County.

Feb. 11, 1972.

[68 Misc.2d 1036] David H. Moses, Suffern, for plaintiffs.

Henry Spitz and Elaine Berger, Great Neck, of counsel, Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, by Dominick J. Tuminaro, Asst. Atty. Gen., for defendants.

MORRIE SLIFKIN, Justice.

In an action for: (1) an injunction permanently restraining defendants from conducting a statutory hearing into charges of racial discrimination, (2) a declaratory judgment adjudging so much of the Human Rights Law (Executive Law §§ 290--301), as complained of, unconstitutional, and vacating a finding of probable cause made by the defendant Harry Anderson as Regional Director of the State Division of Human Rights (3) a judicial declaration of the scope and effect of the Human Rights Law, and (4) such other relief as the court deems appropriate, plaintiffs move for a preliminary injunction pursuant to CPLR 6311. The motion is denied.

The Attorney General of the State of New York, appearing at the arguments heard on the motions before this court, applied for and has been granted leave to intervene in support of the constitutionality of the challenged provisions of the Human Rights Law (CPLR 1012, subd. (b)).

Defendants' cross-motion to dismiss the complaint is granted upon grounds hereinafter expressed.

FACTS

By her verified complaint dated May 14, 1971, Mrs. Joan C. Johnson, a black teacher of language and music arts provisionally employed by the respondent school district, charged respondents with unlawful discriminatory practices relating to her employment solely becuase of her race and color. On that date she had not been officially notified that the school district would not renew her contract for the forthcoming year. Thereafter, by resolutions adopted by the school board on June 29, 1971, the contracts of Mrs. Johnson and four other probationary teachers (who are white) were not renewed.

An investigation of Mrs. Johnson's complaint was undertaken by the defendant Anderson who, in his capacity as Regional Director of the State Division of Human Rights, determined that (1) the Division had jurisdiction in the matter, and (2) there was probable cause to believe the respondents (plaintiffs here) engaged in discriminatory practices as complained. This determination, dated July 27, 1971, further ordered a public hearing into the matter at a time to be scheduled by notice.

Plaintiffs commenced the present action challenging the Division's jurisdiction on procedural grounds and specifically alleging bigotry

and bias on defendant Anderson's part in determining the existence of probable cause (complaint annexed to plaintiffs' moving papers, paragraphs 12, 13, 17, 18, 21, 23, 25, 28, 29). It is claimed that plaintiffs have been damaged in the performance of their professional duties by the allegedly unfounded finding of probable cause (complaint, paragraphs 22a--e inclusive) and that the absence of a statutory procedure to refute or obtain review of that finding violates both the federal and state constitutions as a denial of due process (complaint, paragraph 26).

DISPOSITION

It is the declared policy of this State to afford every individual 'an equal opportunity to enjoy a full and productive life' free of discrimination and intolerance (Executive Law § 290; Matter of Bd. of Higher Education v. Carter, 14 N.Y.2d 138, 145, 250 N.Y.S.2d 33, 34, 199 N.E.2d 141, 142).

In furtherance of that objective the Legislature created the Division of Human Rights and provided it with the statutory powers enumerated in section 295 of the Executive Law. Section 297 thereof sets forth the procedure to be followed by persons who claim any grievance due to unlawful discriminatory practices.

After a complaint is filed with the Division, it must determine whether it has jurisdiction and whether probable cause exists warranting a hearing on the complaint. ¹

At this juncture a determination of probable cause is not intended, nor could it be considered as a final adjudication of the complaint's merit. Probable cause, as the phrase is used in the Executive Law, is a phrase of art whose meaning is perhaps more appreciated by lawyers than laymen. It exists only where there is a reasonable ground for Suspicion founded on 'facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated' (People v. Marshall, 13 N.Y.2d 28, 34, 241 N.Y.S.2d 417, 421, 191 N.E.2d 798, 801). Again, a finding of probable cause 'is nothing more than a determination by an investigator that there should be a formal hearing on the matter' (Salmon v. State Commission for Human Rights, N.Y.L.J., 6/25/69, p. 16, c. 7 (Sup.Ct. Richmond County)). It is plain that no violation of procedural due process can be spelled out of a statutory scheme which requires notice and affords a plenary opportunity to be heard on the subject matter of the complaint. In this regard, plaintiffs' reliance upon Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct 624, 95 L.Ed. 817, as dispositive of their due process argument must fail. In that case the plaintiff-Committee was designated as a Communist agency on a list prepared by the U.S. Attorney General for governmental administrative use only. The Committee was not merely the subject of an accusation--one simply suspected--rather, it was designated as a party whose guilt was established Ex parte without affording it any opportunity to be heard on the subject. That determination, as it affected the Committee, was as final as though made by judge and jury. Mr. Justice Frankfurter, in his concurring opinion in McGrath, aptly summed up the point in a telling paragraph, wherein he wrote: (341 U.S. at 164, 71 S.Ct. at 644)

'It is noteworthy that procedural safeguards constitute the major portion of our Bill of Rights. And so, no one now doubts that in the criminal law a 'person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense--a right to his day in court--are basic in our system of jurisprudence.' (citing case) . . . Nor is there doubt that notice and hearing are prerequisite to due process in civil proceedings (citing case).'

It may be seen that plaintiffs are, so to speak, in the middle of...