Spencer v. Board of Ed. of City of Schenectady
| Decision Date | 09 June 1972 |
| Citation | 69 Misc.2d 1091,333 N.Y.S.2d 308 |
| Parties | Application of SUSAN SPENCER, an infant, by Donald Spencer, her Natural Parent, Petitioner, For a Judgment Pursuant to Article 78 CPLR v. The BOARD OF EDUCATION OF the CITY OF SCHENECTADY, Respondent. |
| Court | New York Supreme Court |
Boyle & Lynch, Schenectady, for petitioner; Robert E. Lynch, Schenectady, of counsel.
Simeo J. Gallo, Schenectady, for respondent.
Louis J. Lefkowitz, Atty. Gen. of the State of New York.
Ruth Kessler Toch, Sol. Gen. of the State of New York; Jean M. Coon and Grace Banoff, Albany, of counsel.
The Petitioner has brought an Article 78 Proceeding to set aside the action of the Board of Education as being arbitrary and capricious and upon the further ground that the Respondent's action in locking Petitioner's name off the ballot violated the Petitioner's constitutional rights under the due process clause of the Fourteehth Amendment and that further the same violated the Petitioner's constitutional rights under the Twenty-Sixth Amendment of the United States Constitution.
The facts are not disputed. The Petitioner, Susan Spencer, is eighteen years of age. It appears that the Petitioner, Susan Spencer, filed petitions pursuant to Section 2608 of the Education of Law containing a sufficient number of signatures to be designated as a candidate for election to the Board of Education for the City of Schenectady. She was a resident of said city and has been so for over a period in excess of three years. The petitions were filed with the Clerk of the said Respondent Board of April 12, 1972 and were accepted by the said Clerk. Her name was placed on the ballot for the election which was to be held on May 2, 1972. On April 28, 1972, the Attorney General of the State of New York issued an opinion which declared that pursuant to Section 3 of the Public Officers Law no person may hold the office of a member of a Board of Education who has not attained the age of twenty-one years. On the eve of election, namely, on May 1, 1972, the said Board of Education met and voted that the voting key below the Petitioner's name on the ballot would be locked so that no eligible voter appearing at the polling place on the day of election would be able to vote for the Petitioner. The Petitioner, Susan Spencer, was notified on May 2, 1972 of this decision.
The Respondent Board of Education has opposed the application on the ground that the Court is without jurisdiction to hear and determine the issues involved. The Respondent cites Section 2037 of the Education Law in support of its position that the dispute must be referred to the Commissioner of Education, and that his jurisdiction is exclusive and his determination is final.
The Court here determines that it has jurisdiction of the subject matter since the questions raised by the pleadings concern the interpretation of statutes and as well as the constitutional rights of the Petitioner herein. Questions involving the right of candidacy are properly before the Court. See Ferraro v. City School District of Schenectady, Supreme Court decision April 24, 1972, 69 Misc.2d 800, 331 N.Y.S.2d 490, affirmed Appellate Division, Third Department, April 28, 1972, 39 A.D.2d 645; Matter of O'Connor v. Emerson, 196 App.Div. 807, 188 N.Y.S. 236; Board of Education v. Rickard, 32 A.D.2d 135, 300 N.Y.S.2d 472; Primps v. Board of Education, 63 Misc.2d 931, 314 N.Y.S.2d 106.
The Board of Education further takes the position that it acted properly in accordance with Section 2608 subdivision 2 of the Education Law which specifically provides as follows:
'The board of education shall cause to be printed official ballots containing the names of all candidates as above provided, except that the board may refuse to have the names of ineligible candidates placed on such ballots.'
The Board of Education pursuant to said Section is thus claimed to have an unrestricted and unlimited power to eliminate or remove a candidate from the ballot. It must be noted here that at the time the Board of Education acted the printed official ballots were already in existence and it was not a case of refusing to have the name of the Petitioner placed upon the official ballot in the first instance. What the Board of Education did here was to have the name blocked off and the lever locked after the name had been placed and printed on the so-called official ballot. The action of the Board was taken at the last possible moment without any notice or any hearing being afforded to the aggrieved candidate, namely, the Petitioner herein.
The Petitioner contends that the procedural requirements of Section 145 of the Election Law must be followed when a Board of Education refuses to place the name of a candidate on a ballot. Section 2609 of the Education Law, subdivision 1, mandates that elections for the Board of Education shall be conducted in accordance with the provisions of the Election Law, relative to general elections, except as otherwise provided therein.
The Education Law, Article 53, provides for school elections in City School Districts of a city which has less than one hundred twenty-five thousand inhabitants. Briefly, Section 2603 provides for and covers the Qualifications of voters; Section 2605, Notice of election; Section 2606, Registration of voters; Section 2607, Inspectors of election; organization; Section 2608, Nomination and ballot; and Section 2609, Conduct of election; challenges. 'Challenges' as referred to in Section 2609 relates to the challenging of a voter and not the eligibility of a candidate for the office of a member of the Board of Education. The Petitioner has not been able to cite any case nor has the Court on its own initiative found any case setting forth that Section 145 of the Election Law is required to be followed in the present case. The statute and cases are silent. Thus a novel question of law is presented here which requires close analysis. Section 145 of the Election Law sets forth the procedures to be followed in objecting to the nomination of a person for any public office. Such an objection must be in writing and filed with the officer of the Board with whom the original petition is filed within three days after the filing of said petition. The Election Law also makes provision for prompt determination of such objection and review of such determination by the Courts. See Section 330 Election Law. Section 2608, subdivision 2, which permits a Board of Education to refuse to have the names of ineligible candidates placed on the printed official ballot provides for no notice, no procedure to be followed in objecting to the nomination of a person, and no opportunity to be heard. Under such circumstances, the summary removal of a candidate from a ballot at the last moment on the alleged grounds that he or she is ineligible certainly can be said to be subject to attack for failure to meet the due process requirements of the Fourteenth Amendment. Compare Section 2553, subdivision 9, par. j and 11, par. j, of the Education Law which is applicable to the Cities of Albany and Rochester and provides that the Election Law shall apply to independent nominating petitions, for example.
The Respondent-Board takes the position that Section 2608, subdivision 2, gives it unlimited power in that no notice or opportunity to be heard need be accorded a candidate and that Section 2609 of the Education Law, subdivision 1, which makes the provisions of the Election Law applicable to School Board elections (except as otherwise provided) relates solely to registration and the process of voting--not to the power of the Board to determine who shall be on the ballot.
This interpretation placed upon the Education Law by the Respondent Board, that is, that Section 2608, subdivision 2 thereof, is the exclusive authority in this regard renders its action under the facts in this case a violation of the due process clause of the Fourteenth Amendment of the Constitution.
Assuming (and there is no dispute on this point) that a member of a Board of Education is a public officer, the requirements of due process can only be met by this Court's concluding that Section 145 of the Election Law providing for objections, notice and a hearing within defined time limits is applicable in this instance by virtue of Section 2609, subdivision 1, of the Education Law.
The provisions of Section 145 of the Election Law were not followed by the Respondent Board and consequently this Court must declare that the action of the said Board was without proper authority, unreasonable, unfair in effect, and in violation of the rights of the Petitioner herein. In view of the last minute receipt of the Attorney General's opinion, and the complex problem thus presented, no adverse reflection on the motives of the Board is intended in the above statement.
However, the participation of the members of the Board of Education who were themselves candidates for the same office does raise some question as to their direct interest in the outcome of the election and the determination that rendered the Petitioner an ineligible candidate. The Board of Education, by virtue of the Education Law is placed in the unusual position of also being its own Board of Elections. Indeed, no other public elective office can be filled under such conditions. The constitution of the Board of Education under such circumstances may also be subject to legal challenge.
Should the above points be considered as insufficient to determine the respective rights of the parties, we come to the following considerations:
The main issue presented upon this proceeding is the right of candidacy of the Petitioner who is eighteen years of age. The Petitioner as an eighteen year old was enfranchised with the right to vote by the Twenty-Sixth Amendment to the United States Constitution. On June 30, 1971, Ohio became the thirty-eighth state to ratify the...
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