DeHond v. Nyquist
| Decision Date | 29 January 1971 |
| Citation | 65 Misc.2d 526,318 N.Y.S.2d 650 |
| Parties | In the Matter of Gordon J. DeHOND, Petitioner, v. Ewald B. NYQUIST, as Commissioner of Education of the State of New York and William J. Towler, III and Mary Anna Towler, for Judgment under CPLR Article 78, Respondents. |
| Court | New York Supreme Court |
Wiser, Shaw, Freeman, Van Graafeiland, Harter & Secrest, Rochester (James A. Locke, Long Island City, of counsel), for petitioner.
Robert D. Stone and John P. Jehu, Albany, for respondent, Commissioner of Education.
Stephen M. Jacobstein, Rochester, for respondents William J. Towler, III and Mary Anna Towler.
In this article 78 proceeding the petitioner seeks an order prohibiting the Commissioner of Education (hereinafter 'Commissioner') from determining an appeal which challenges petitioner's right to serve as a member of the Board of Education of the City School District of the City of Rochester.
On November 4, 1969, at a municipal election of the City of Rochester, the petitioner was elected to the Board of Education. He filed his oath of office on December 31, 1969 and on January 2, 1970 he attended his first meeting of the board. Shortly thereafter the respondents, William J. Towler, III, and Mary Anna Towler, residents of the City of Rochester, took an appeal to the Commissioner to have petitioner declared ineligible to serve as a member of the Board of Education on the ground that he had not been a resident of the City of Rochester for three years preceding the date of his election, as required by subdivision 1 of section 2553 of the Education Law.
The issue raised by this prohibition proceeding is whether the Commissioner has jurisdiction to entertain and determine this appeal.
The appeal in question does not challenge the validity of the election at which the petitioner was elected. Therefore, sections 2037 and 2038 of the Education Law, which relate to the Commissioner's authority to determine election disputes, are not applicable to this appeal.
The authority of the Commissioner to entertain and determine this appeal is conferred by section 310 of the Education Law. Under the language of this section the Commissioner has been vested with broad jurisdiction to review educational matters. The Court of Appeals has said 'that section 310 was intended to confer a wide sweep of power upon the Commissioner (see Bullock v. Cooley, 225 N.Y. 566, 576--577, 122 N.E. 630, 633, supra)' (Matter of Board of Educ. of City of New York v. Allen, 6 N.Y.2d 127, 137, 188 N.Y.S.2d 515, 521, 160 N.E.2d 60, 65). The section itself reads, in part as follows:
.
Since the petitioner has taken his seat on the school board and is performing the duties of his office, it seems clear that the question of whether or not he is eligible to hold that office under subdivision 1 of section 2553 is a matter within the purview of subdivision 7 of section 310.
In addition to this prohibition proceeding, the petitioner seeks a judgment of this court declaring that the three-year residency requirement contained in subdivision 1 of section 2553 of the Education Law is unconstitutional because it violates certain provisions of the New York Constitution, namely, section 1 of article XIII, that no other test be required for public office than the constitutionally provided oath of office; section 1 of article I, '(that) no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof * * *'; and section 11 of article I, as well as the Fourteenth Amendment of the United States Constitution, that no person shall be denied equal protection of the law.
Subdivision 1 of section 2553 of the Education Law provides, in relevant part:
'No person shall be eligible to the office of member of a board of education who is not a citizen of the United States and who, in the case of the city school districts of the cities of * * * Rochester * * * has not been a resident of the city school district for which he is chosen for a period of at least three years immediately preceding the date of his election * * *'.
The petitioner contends (1) that the statute arbitrarily discriminates and distinguishes between residents of the city who have not satisfied the three-year residency requirement and those other residents who have resided within the city for three years and are therefore eligible to hold office as a member of the board of education; and (2) that the statute dilutes the franchise by improperly restricting the number of persons from which the electorate can choose.
In support of these contentions, the petitioner relies on Landes v. Town of North Hempstead, 20 N.Y.2d 417, 284 N.Y.S.2d 441, 231 N.E.2d 120, which held that a statute requiring the holder of an elective town office to be an owner of real property was unconstitutional. The petitioner would have this court extend the reasoning of Landes to the residency qualification provided for in the challenged statute. In Landes, the court found that the ownership of land as a prerequisite to holding elective town office was an 'invidious discrimination' against nonlandowners and constituted a denial of equal protection from the viewpoint of the nonlandowner seeking town office and a 'dilution' or 'debasement' of the franchise from the viewpoint of the voter. The court stated that '(o)wnership of real property does not render one more interested in, or devoted to, the concerns of the town' and concluded that '(a) ll in all, we suggest that it is impossible today to find any rational connection between qualifications for administering town affairs and ownership of real property'. In the course of its opinion, however, the court left open the question of whether residency qualifications for public office were constitutional, stating that '(q)ualifications for office must have a rational basis, such as age, integrity, training or, perhaps, residence'.
It is settled law in this State that qualifications for public office may be established by the Legislature so long as these qualifications do not work arbitrary exclusions from office. (Matter of Callahan, 200 N.Y. 59, 61, 93 N.E. 262, 263; People ex rel. Devery v. Coler, 173 N.Y. 103, 118, 65 N.E. 956, 960; Rogers v. Common Council of Buffalo, 123 N.Y. 173, 188, 25 N.E. 274, 278.)
Where a classification is used by the Legislature in prescribing qualifications for public office there must be a reasonable relationship between the classification and the...
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