Welcher v. Sobol

• Decision Date: 28 December 1995
• Citation: 222 A.D.2d 1001,636 N.Y.S.2d 421
• Parties: , 106 Ed. Law Rep. 306 Robert S. WELCHER, Appellant, v. Thomas SOBOL, as New York State Commissioner of Education, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 421

636 N.Y.S.2d 421

222 A.D.2d 1001, 106 Ed. Law Rep. 306

Robert S. WELCHER, Appellant, v. Thomas SOBOL, as New York State Commissioner of Education, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 28, 1995.

Boyle & Boyle (Earl P. Boyle, of counsel), Syracuse, for appellant.

Dennis C. Vacco, Attorney-General (John McConnell, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, PETERS and SPAIN, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court (Hughes, J.), entered August 31, 1994 in Albany County, which, inter alia, denied plaintiff's motion for a preliminary injunction.

Plaintiff was awarded permanent certification as a nursery, kindergarten and elementary school teacher in 1966. Further, in 1971 he was granted permanent certification as a school administrator and supervisor and, in 1973 he was granted permanent certification as a school district administrator. After teaching elementary school for five years, he became an administrator in the Liverpool Central School District in Onondaga County, serving there as an assistant principal and as an elementary principal from 1971 through November 29, 1993.

On March 27, 1992 defendant issued a "notice of substantial question as to moral character" to plaintiff, which alleged that he had sexually molested his two nieces between 1969 (when they were between four and five years of age) and 1980. Plaintiff was thereupon placed on leave with pay pending disposition of the allegations. Following a hearing held pursuant to 8 NYCRR 83.4, a three-member panel, with one member dissenting, issued a decision finding that plaintiff committed 25 incidents of sexual abuse or misconduct against his nieces and recommended that his teaching and administrative certificates be revoked. On October 22, 1993 plaintiff appealed the Hearing Panel's decision to defendant. On November 29, 1993 defendant issued a decision dismissing plaintiff's appeal and revoking all of plaintiff's certifications pursuant to the authority of Education Law § 305(7), vesting defendant with the power to revoke teaching certificates.

Plaintiff then commenced this action for a declaratory judgment, claiming, inter alia, that Education Law § 305(7) was an unconstitutional delegation of legislative power in that it failed to provide any standards or guidance for exercising the power granted. Plaintiff also moved for a preliminary injunction staying enforcement of defendant's order revoking his licenses. At the same time, plaintiff commenced a CPLR article 78 proceeding to review defendant's determination. Defendant then moved to dismiss both the declaratory judgment action and the CPLR article 78 proceeding or, in the alternative, for consolidation.

Supreme Court concluded that it was unlikely that plaintiff would prevail on the merits and denied plaintiff's motion for a preliminary injunction. The court further denied defendant's motion to dismiss and stayed the declaratory judgment action pending decision of the CPLR article 78 proceeding.

We reject plaintiff's argument that Supreme Court erred in denying his motion for a preliminary injunction because Education Law § 305(7) is an unconstitutional delegation of power in that it fails to provide standards or guidance for defendant. In our view the statutory provision sets forth an adequate standard and sufficient guidance to defendant to meet constitutional requirements.

Initially, we note that a party seeking a preliminary injunction must show (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is not granted, and (3) a balance of equities tipping in favor of the moving party (see, Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272; Clark v. Cuomo, 103 A.D.2d 244, 245, 480 N.Y.S.2d 61, affd. 63 N.Y.2d 96, 479 N.Y.S.2d 971, 468 N.E.2d 1108). It is a drastic remedy and should be used sparingly (see, Clark v. Cuomo, supra, at 246, 480 N.Y.S.2d 61) and appellate review is limited to determining whether the trial court exceeded or, as a matter of law, abused its discretion (id., at 246, 480 N.Y.S.2d 61; see, Doe v. Axelrod, supra, at 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272).

Education Law § 305(7) provides that defendant "may annul upon cause shown to his satisfaction any certificate of qualification granted to a teacher by any authority". There is a strong presumption that a legislative enactment is constitutional (Tompkins County Bd. of Health v. Whetzel, 173 A.D.2d 1050, 570 N.Y.S.2d 387) and the legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits (Boreali v. Axelrod, 71 N.Y.2d 1, 9, 523 N.Y.S.2d 464, 517 N.E.2d 1350). Some broad grants of authority have been held not to violate the nondelegation principle (see, Matter of Levine v. Whalen, 39 N.Y.2d 510, 515, 384 N.Y.S.2d 721, 349 N.E.2d 820; Matter of Sullivan County Harness Racing Assn. v. Glasser, 30 N.Y.2d 269, 277, 332 N.Y.S.2d 622, 283 N.E.2d 603; Mandel v. Board of Regents of Univ. of State of N.Y., 250 N.Y. 173, 175, 164 N.E. 895). Where there has been no direction given to the administrative body, the legislation has been held to be unconstitutional (see, Packer Collegiate Inst. v. University of State of N.Y., 298 N.Y. 184, 192, 81 N.E.2d 80; Matter of Redfield v. Melton, 57 A.D.2d 491, 495, 395 N.Y.S.2d 725; City of Tonawanda v. Tonawanda Theater Corp., 29 A.D.2d 217, 218, 287 N.Y.S.2d 273).

In the instant case, the limiting words "upon cause shown to his satisfaction" provide an adequate standard. Defendant must have "cause", a term that has meaning and definition. Consequently, defendant cannot revoke a license for "capricious or whimsical" reasons (see, City of Tonawanda v. Tonawanda Theater Corp., supra, at 219, 287 N.Y.S.2d 273). Thus, plaintiff has not demonstrated that there is a likelihood of success on the merits and plaintiff's motion for a preliminary injunction was correctly denied.

Plaintiff, however, has shown that the second criterion for issuance of a preliminary injunction, irreparable harm if the injunction is not issued, has been met. The School District, in terminating plaintiff's employment, was acting lawfully since plaintiff cannot teach without a...