Community School Bd. 26, Queens v. Macchiarola

• Decision Date: 25 April 1979
• Citation: 415 N.Y.S.2d 776,99 Misc.2d 219
• Parties: COMMUNITY SCHOOL BOARD 26, QUEENS, et al. v. Dr. Frank J. MACCHIAROLA, etc., et al.
• Court: New York Supreme Court

Page 776

415 N.Y.S.2d 776

99 Misc.2d 219

COMMUNITY SCHOOL BOARD 26, QUEENS, et al. v. Dr. Frank J. MACCHIAROLA, etc., et al.

Supreme Court, Special Term, Queens County, Part I.

April 25, 1979.

Allen G. Schwartz, Corp. Counsel of City of New York, New York City, David M. Wirtz, Sp. Asst. Corp. Counsel, Brooklyn, for respondents

Harold F. Hay, New York City, for petitioners.

MEMORANDUM

HAROLD HYMAN, Justice.

By this special proceeding petitioner seeks to declare the provisions of section 2590-L of the Education Law unconstitutional and to restrain respondent Macchiarola from suspending or removing petitioner Community School Board.

The instant proceeding arises out of a dispute between petitioner school board and respondents city educational authorities relating to the collection and supplying of ethnic data about the pupil and staff population for petitioner's district. This dispute has persisted for a number of years. Petitioner, along with other community boards, has commenced an action for declaratory judgment in the Federal District Court, Eastern District of New York, to declare that the gathering of such data is unconstitutional. Apparently, it is the intention of the respondents to use such data in connection with certain policies arranged between the City Board of Education and the Federal Office of Civil Rights. Petitioner community board refused to deliver such data during the 1977-78 school year. In March of 1978, the Chancellor, acting under his authority pursuant to section 2590-L of the Education Law, removed the board and collected the data through his designated trustee. Appeals were taken from that decision, but before any determination, the board was restored to its position. The petitioner community board has again refused to provide that data from the 1978-79 school year. It has apparently been directed to do so by the Chancellor and a conciliation meeting has been scheduled in that regard. Petitioner further alleges that it believes that it is the Chancellor's intention to suspend the board if it should persist in its refusal.

In reply to this application, respondent Chancellor and City Board of Education move to dismiss, claiming that petitioners lack standing to bring this application, fail to state a cause of action, and have no basis for proceeding under CPLR 7803.

In view of the undisputed fact that the Chancellor has taken steps preparatory to removal of the board and the further fact that similar action was taken earlier with regard to the same dispute, it cannot be said that the board, if not the individual petitioners, lacks standing to question the validity of the statutes under which respondents purport to act (see Bd. of Educ. v. Allen, 20 N.Y.2d 109, 115 n.1, 118-9, 281 N.Y.S.2d 799, 803 n.1, 805-806, 228 N.E.2d 791, 793 n.1, 795-796, affd. 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060). Respondent's contention that petitioner has no basis for this proceeding under CPLR 7803 does not warrant dismissal. Where a jurisdicable issue is pleaded and all the necessary parties are before the court, questions as to the form of action or proceeding under which the issue is before the court cannot provide a basis for dismissal of the issue (CPLR 103(c); Matter of Kovarsky v. Housing and Dev. Admin., 31 N.Y.2d 184, 191-92, 335 N.Y.S.2d 383, 387-388, 286 N.E.2d 882, 885-886). Thus, whether the issue is cognizable under an Article 78 or under an action for declaratory judgment, this court must reach the merits of petitioner's application.

At the heart of the dispute presently before the court are the provisions of section 2590-L of the Education Law, which provide in pertinent part that:

"(I)f, in the judgment of the chancellor any community board fails to comply with any applicable provisions of law, by-laws, rules or regulations, Directives and agreements * * * he may issue an order requiring the community board to cease its improper conduct * * * (and) may enforce that order by the use of appropriate means including: (a) supersession of the community board * * * and (b) suspension or removal of the community board * * *." (Emphasis added)

It is petitioner's first contention that such legislation permitting an appointed official to remove an elected board is an improper constitutional authorization akin to a Bill of Attainder. Bills of Attainder and the parallel Bill of Pains and Penalties barred by the Federal Constitution (U.S.Const. art. I, § 10) are legislative acts which apply to either named or easily identifiable individuals which inflict punishment upon such individuals without judicial trial (United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484; Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 18 L.Ed. 356). While the legislation here at issue is aimed at readily identifiable recalcitrant boards, it cannot be said to impose punishment of a kind found in the unconstitutional Bills of Attainder (Lanza v. Wagner, 11 N.Y.2d 317, 324-25, 229 N.Y.S.2d 380, 385-386, 183 N.E.2d 670, 673-674).

Petitioner also alleges that the provisions of section 2590-L are unconstitutional in that they fail to provide procedural due process in the manner of removal. Particularly, they contend that no notice is required, no formal hearing, no unbiased tribunal, no required fact finding, no legislative criteria or standards are delineated and no limitation on the length or duration of the period of removal is specified. In this regard, the court doubts that the general constitutional standards of procedural due process must apply to disputes between governmental agencies (Matter of Ocean Hill-Brownsville Governing Bd. v. Bd. of Educ., 23 N.Y.2d 483, 487-88, 297 N.Y.S.2d 568, 571-572, 245 N.E.2d 219, 221-222; see Komyathy v. Bd. of Educ., 75 Misc.2d 859, 863-64, 348 N.Y.S.2d 28, 34-35).

Unquestionably, control of educational policies in this state rests with the Legislature and the state commissioner (N.Y.Const. art. XI, § 1; Matter of Ocean Hill-Brownsville Governing Bd. v. Bd. of Educ., supra, 23 N.Y.2d p. 485, 297 N.Y.S.2d p. 570, 245 N.E.2d p. 220). The issue thus is substantially one of administrative law and the proper delegation of authority by the Legislature to a governmental agency. Substantially the same issues as raised...