Cullen v. Fliegner
| Decision Date | 28 February 1994 |
| Docket Number | D,No. 3440,3440 |
| Citation | 18 F.3d 96 |
| Parties | 89 Ed. Law Rep. 1086 Brian CULLEN, Plaintiff-Appellee, v. Dr. Herbert FLIEGNER, Joseph Ribando, Robert Quinn, Keld Alstrup, Bernard Modder, Constance Jones Phelps, Michael Santoianni, and the Tuxedo Union Free School District, Defendants-Appellants. ocket 93-7685. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen A. Perelson, New York City, for appellants.
Robert N. Isseks, Goshen, New York, for appellee.
Before: KEARSE, JACOBS, Circuit Judges, and CARTER, District Judge. *
This is a challenge to the method adopted by the Tuxedo Union Free School District to enforce New York State Education Law Sec. 2031-a ("Sec. 2031-a"). Section 2031-a prohibits electioneering within 100 feet of a polling place during a school board election, and obligates the inspector of elections to place distance markers containing notice of the electioneering prohibition at a distance 100 feet from the polling place. 1 In the district court, Appellee did not challenge that portion of Sec. 2031-a establishing the 100-foot, or "campaign free," zone. Rather, he attacked the means employed by the School District to enforce the statute on the grounds that the method chosen was not the least restrictive alternative for enforcing the statute, and thereby violated the First and Fourteenth Amendments. The district court agreed with Appellee, and so do we.
Appellee, Brian Cullen, is a tenured high school science teacher who has been employed by the Tuxedo Union Free School District (the "School District") for the past 18 years. The School District, along with its superintendent, Dr. Herbert Fliegner (the "Superintendent"), and the six members of the School District's Board of Education, are Appellants in this appeal.
On February 15, 1990, the School District filed disciplinary charges alleging that Cullen 1) in violation of previous directives, took a group of students during the weekend on an unauthorized field trip in an aircraft to conduct a scientific experiment and 2) encouraged students to expose themselves, or "moon" him, in one of his classes. There had been no previous disciplinary charges filed against Cullen. The disciplinary panel dismissed the second charge as being "of no significance," but found Cullen guilty of the first and fined him $1250. The panel indicated, however, that Cullen "is clearly a very fine teacher."
On February 13, 1992, a new disciplinary charge was filed against Cullen alleging that, despite prior directives not to do so, he ignited the aerosol spray of Binaca Breath Spray in the presence of elementary grade school students in the school cafeteria where he was serving as a cafeteria lunch supervisor. After finding Cullen guilty of this charge, the disciplinary panel suspended him for four months without pay, despite the School District's argument that Cullen should be terminated. The School District is appealing the panel's penalty decision, currently pending before the New York State Commissioner of Education.
On May 6, 1992, at the George F. Baker High School, the School District held an election for candidates for its Board of Education and for a vote on the annual budget. The Superintendent and the District Clerk, Ms. Nancy Bourke, were responsible for the conduct of these proceedings.
The School District did not place distance markers 100 feet (or at any distance) from the entrance to the High School during the course of the May 6, 1992 election. No written notice was posted advising the public of the electioneering prohibition, nor did anyone physically determine where the 100-foot campaign free zone actually ended. In the previous nine years (through 10 elections), the School District did not use distance markers--and indeed did not possess any such markers--in any of these elections.
At about 3:30 p.m. on May 6th, after his work day had ended (in accordance with the terms of the teachers' collective bargaining agreement), Appellee began to distribute copies of a flier protesting the fairness of the ongoing election and encouraging voters to vote "no" for the two incumbent Board of Education members, who were running unopposed. Appellee was positioned approximately 41 feet from the entrance door of the High School. At about the same time, a member of the School District staff advised the Superintendent of what Cullen was doing.
The Superintendent approached Appellee and requested that he remove himself from the steps of the High School because the law required that he be at least 100 feet from the entrance to the High School if he wanted to engage in any electioneering. Appellee replied that he was doing nothing wrong, that it was after school hours and the Superintendent could not tell him to do anything, and that he would not move unless instructed to do so by a police officer. The Superintendent repeated his order to move, and on Appellee's failure to do so called the Chief of Police, asking him to send an officer to the High School to instruct Appellee to move to an appropriate distance from the polling place.
At about 3:40 p.m., while the Superintendent was calling the police, Joseph Zanetti, the School District's Business Administrator, observed Appellee handing out fliers. Zanetti advised Appellee that he was not outside the required statutory distance and that he must cease distributing fliers there and remove himself. As he had done with the Superintendent, Cullen refused to move unless the police asked him to. At this point, the Superintendent returned, requested that Zanetti remain as a witness, and, in Zanetti's presence, instructed Cullen to remove himself to 100 feet from the front door of the High School. Appellee again refused to move unless ordered to do so by the police.
Police officer John J. Kelly arrived at the High School shortly thereafter, and found Appellee still handing out fliers less than 100 feet from the front of the High School. The police officer told Appellee that he could not distribute the fliers within 100 feet of the High School, and that doing so violated state law. Appellee indicated to the police officer that he was not aware of the state law and that he would move. The police officer then indicated a spot where Appellee could stand that would be "well outside" the 100 foot zone.
The Superintendent observed Appellee at this new location for approximately 15 or 20 minutes until 4:15 p.m., at which time the Superintendent left the High School. Prior to leaving, the Superintendent told the District Clerk that there had been trouble with Appellee electioneering within the campaign free zone, and instructed her to call the police if she had any further problems.
At approximately 4:30 p.m., the District Clerk observed Appellee handing out fliers within 100 feet of the High School's front doors. After phoning the police, she advised Appellee that he could not hand out fliers within 100 feet of the entrance to the High School.
A second police officer soon arrived and gave Appellee a copy of New York State Election Law Sec. 8-104, which sets forth an electioneering prohibition similar to the one contained in Sec. 2031-a. Appellee agreed that the 100 foot prohibition extended from the front door of the High School, and the police officer then escorted Appellee to a point that they both agreed was beyond the 100 foot zone.
Nothing in the record establishes Appellee's whereabouts or activities, or if any prohibited electioneering occurred, between 4:30 p.m. and 8:30 p.m. At about 8:30 p.m., the Superintendent returned to the High School. While he was standing inside, one or more voters came into the High School carrying Appellee's flier and told the Superintendent that one of the teachers was handing them out at the front of the steps of the High School. The Superintendent, the District Clerk, the Business Administrator and several members of the Board of Education then went outside, and Appellee was again advised that he was violating state law and was asked to move. Appellee did not move, and the Superintendent went to call the police. It is uncertain whether a police officer came to the High School this third time.
Between 8:50 p.m. and the close of the polls at 9:00 p.m., Appellee continued to hand out the fliers at the front of the steps of the High School. The Business Administrator approached Appellee and told him that what he was doing was illegal and directed him to leave. Appellee replied that he was beyond the 100-foot radius.
On February 26, 1993, a disciplinary panel established pursuant to New York State Education Law Sec. 3020-a (the "Sec. 3020-a panel") heard charges that Appellee had violated Sec. 2031-a on three separate occasions on May 6, 1992. After the presentation of the School District's case and over the objection of the School District's counsel, Appellee's counsel stated that Appellee had a right to seek a preliminary injunction staying the disciplinary proceeding because a First Amendment issue was involved, but that counsel would instead seek to submit to the Sec. 3020-a panel a motion to dismiss based upon this First Amendment issue.
Ultimately, the School District's counsel agreed, and the Sec. 3020-a panel agreed to hear the motion to dismiss based upon the constitutional claims only. Both sides briefed the issue, and Appellee's motion was denied.
After learning of the Sec. 3020-a panel's denial of his motion, Appellee commenced this action in the district court for the Southern District of New York seeking to enjoin the disciplinary proceeding against him. Following the parties' stipulation to the relevant facts and oral argument, the district court rendered a decision from the bench. The court found that Appellants' prosecution of the charges and the commencement of the disciplinary proceeding violated Appellee's First Amendment free speech rights, and so permanently enjoined Appellants from...
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