N.Y.S. Bd. of Regents v. State Univ. of N.Y., 527050

• Decision Date: 17 October 2019
• Docket Number: 527050
• Citation: 178 A.D.3d 11,111 N.Y.S.3d 724
• Parties: In the Matter of NEW YORK STATE BOARD OF REGENTS et al., Respondents, v. STATE UNIVERSITY OF NEW YORK et al., Appellants, et al., Respondent. (Proceeding No. 1.) In the Matter of New York State United Teachers, by its President Andrew Pallotta, et al., Respondents, v. State of New York, Respondent, and State University of New York et al., Appellants. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 11
111 N.Y.S.3d 724

In the Matter of NEW YORK STATE BOARD OF REGENTS et al., Respondents,
v.
STATE UNIVERSITY OF NEW YORK et al., Appellants, et al., Respondent.

(Proceeding No. 1.)

In the Matter of New York State United Teachers, by its President Andrew Pallotta, et al., Respondents,
v.
State of New York, Respondent,
and
State University of New York et al., Appellants.

(Proceeding No. 2.)

527050

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 6, 2019
Decided and Entered: October 17, 2019

111 N.Y.S.3d 726

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success (Matthew F. Didora of counsel), for State University of New York and others, appellants.

Robert L. Dunn, New York City (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for Success Academy Charter Schools – NYC, appellant.

Greenberg Traurig, LLP, Albany (Henry M. Greenberg of counsel), for New York State Board of Regents and others, respondents.

Robert T. Reilly Jr., General Counsel, Latham (Michael J. Del Piano of counsel), Stroock & Stroock & Lavan LLP, New York City, and Beth A. Norton, New York City, for New York State United Teachers and others, respondents.

Jay Worona, Latham, for New York State School Boards Association, Inc. and another, amici curiae.

Before: Garry, P.J., Egan Jr., Lynch and Pritzker, JJ.

OPINION AND ORDER

Garry, P.J.

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178 A.D.3d 15

Appeal from a judgment of the Supreme Court (Young, J.), entered June 20, 2018 in Albany County, which granted petitioners' applications, in two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment, to annul certain regulations promulgated by respondent State University of New York Board of Trustees' Charter Schools Committee.

In October 2017, respondent State University of New York Board of Trustees' Charter School Committee (hereinafter the Committee) promulgated regulations (see 8 NYCRR part 700 [hereinafter the regulations] ) that purported to establish an independent licensure process for teachers in certain charter schools as a substitute for the teacher certification system established by petitioners State Education Department and State Board of Regents. The Committee asserts that the independent licensure process is necessary to alleviate a teacher shortage. Respondents Success Academy Charter Schools – NYC (hereinafter SACS) and Bronx Charter School for Better Learning submitted plans for independent licensure programs pursuant to the regulations, and the Committee approved them. Thereafter, these two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment were commenced seeking to, among other things, annul the regulations on the grounds that they are in excess of the Committee's authority under Education Law § 355(2–a), conflict with Education Law article 56 (hereinafter the Charter Schools Act) and other provisions of the Education Law, violate the separation of powers doctrine and were not promulgated in accordance with the State Administrative Procedure Act (hereinafter SAPA).¹ Petitioners in proceeding No. 1 are the Board of Regents, the Education Department, the Chancellor of the Board of Regents, the University of the State of New York, and the Commissioner of Education. Petitioners in proceeding No. 2 are the New York State United Teachers (hereinafter NYSUT), the United Federation of Teachers, Local 2 (hereinafter UFT), the National Association for the Advancement of Colored People, New York State Conference, Robert Hunter Schoenfeld (a teacher), Edwin K. Bradley (a teacher), and Felicia Grace (a parent).

Before joining issue, petitioners in proceeding No. 1 moved for a temporary restraining

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order and preliminary injunction to, among other things, enjoin the implementation of the

178 A.D.3d 16

regulations. In response, the Committee and respondents State University of New York (hereinafter SUNY), the SUNY Board of Trustees, the Chancellor of SUNY, the Chair of the SUNY Board of Trustees, the SUNY Charter Schools Institute and the Chair of the Committee (hereinafter collectively referred to as the SUNY respondents) moved in proceeding No. 2 and cross-moved in proceeding No. 1 for an order dismissing the amended petitions/complaints. The SUNY respondents asserted that petitioners in both proceedings lacked standing to challenge the regulations and that petitioners in proceeding No. 1 lacked the capacity to sue. Following oral argument, Supreme Court granted the amended petitions/complaints, vacated the regulations and enjoined their implementation. The court found, among other things, that the Education Department and the Commissioner have standing, that Education Law § 355(2–a) does not authorize the Committee to promulgate regulations that alter minimum teacher certification requirements, and that the regulations were not promulgated in accordance with SAPA.² The SUNY respondents and SACS (hereinafter collectively referred to as respondents) appeal.

We turn first to the issues of capacity and standing. "Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing. As a general matter, capacity ‘concerns a litigant's power to appear and bring its grievance before the court’ " ( Silver v. Pataki , 96 N.Y.2d 532, 537, 730 N.Y.S.2d 482, 755 N.E.2d 842 [2001], quoting Community Bd. 7 of Borough of Manhattan v. Schaffer , 84 N.Y.2d 148, 155, 615 N.Y.S.2d 644, 639 N.E.2d 1 [1994] ). Governmental entities such as petitioners in proceeding No. 1 have capacity to sue only when it is based upon a "concrete statutory predicate. Capacity to sue may be expressly granted in enabling legislation or it may be inferred from review of the entity's statutory functions or responsibilities" ( Matter of Graziano v. County of Albany , 3 N.Y.3d 475, 479, 787 N.Y.S.2d 689, 821 N.E.2d 114 [2004] [internal quotation marks and citation omitted] ). Pursuant to the Education Law, the Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the [B]oard of [R]egents" ( Education Law § 305[1] ). Further,

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Education Law § 308 provides that the Commissioner has the power and the duty "to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in [the Education Law] or in any other general or special law pertaining to the school system of the state or any part thereof or to any school district or city." Accordingly, the Commissioner, acting in her roles as the chief executive officer of the Education Department and the Board of Regents, has both express and implied capacity to bring proceeding No. 1 (see Education Law § 305[1] ; Hodgkins v. Central School Dist. No. 1 , 48 A.D.2d 302, 304–305, 368 N.Y.S.2d 891 [1975], lv. denied 42 N.Y.2d 807, 398 N.Y.S.2d 1029, 368 N.E.2d 45 [1977] ).

To establish standing, a petitioner must show that it "ha[s] something truly at stake in a genuine controversy" (

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Matter of Animal Legal Defense Fund, Inc. v. Aubertine , 119 A.D.3d 1202, 1203, 991 N.Y.S.2d 482 [2014] [internal quotation marks and citation omitted] ). To do so, it must "establish[ ] both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" ( Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation , 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188 [2014] ; see Society of Plastics Indus. v. County of Suffolk , 77 N.Y.2d 761, 772–773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ). Petitioners in proceeding No. 1 assert that the Commissioner has exclusive statutory authority to promulgate regulations governing the certification of public school teachers, to certify qualified individuals to teach in public schools, and to register teacher preparation programs in this state (see Education Law §§ 207, 3004 ; 8 NYCRR part 80). They further assert that the regulations conflict with Education Law §§ 2854(3)(a–1) and 3602–ee, which require teachers employed in charter schools and charter school pre-kindergarten programs to be certified according to the same requirements that apply to other public school teachers, with certain limited exceptions. The Commissioner averred by affidavit that the regulations usurp the Commissioner's authority, contravene the purposes and...