Matter of Johnson v Section V of the N.Y. State Pub. High Sch. Athletic Assn. (2013 NY Slip Op 52200(U))

[*1]

Matter of Johnson v Section V of the N.Y. State Pub. High Sch. Athletic Assn.

2013 NY Slip Op 52200(U) [42 Misc 3d 1204(A)]

Decided on October 24, 2013

Supreme Court, Monroe County

Stander, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2013

Supreme Court, Monroe County

In the Matter of the Application of Rodney and Donnarae Johnson, as Parents and Natural Guardians of DIONA JOHNSON, A MINOR, Petitioners, For a judgment under Article 78 of the Civil Practice Law and Rules

against

Section V of the New York State Public High School Athletic Association and NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC ASSOCIATION, Respondents.

2013/09901

Attorney for Petitioners:

Paul F. Keneally, Esq.

David H. Fitch, Esq.

Underberg & Kessler, LLP

300 Bausch & Lomb Place

Rochester, New York14604

Attorney for Respondent,

New York State Public High School Athletic Association:

Renee L. James, Esq.

6216 Turnwood Drive

Jamesville, New York 13078

Attorney for Respondent,

Section V of the New York State High School Athletic Association:

Maureen Pilato Lamb, Esq.

Lamb Law Offices

One East Main Street

510 Wilder Building

Rochester, New York 14614

Thomas A. Stander, J.

The Petitioners, Rodney and Donnarae Johnson, as parents and natural guardians of Diona Johnson, a minor, ("Johnson") for a judgment pursuant to CPLR Article 78 annulling and vacating the August 12, 2013 Decision of Respondents, New York State Public High School Athletic Association ("NYSPHSAA"), which denied Petitioner's appeal seeking athletic eligibility for Diona Johnson for the 2013-2014 school year, ordering that Diona Johnson have such athletic eligibility and granting such other and further relief as the Court deems just and proper.

FACTS

The Petitioners are the parents of Diona Johnson, a minor, who is a senior at Gates Chili Central School District ("Gates-Chili"). Diona Johnson repeated eighth grade, attending eighth grade at Churchville-Chili School District ("Churchville-Chili") in 2008-2009 and then attending eighth grade again at Aquinas Institute, 2009-2010. While in eighth grade at Churchville-Chili, during 2008-2009, Diona Johnson was selectively classified to play junior varsity and varsity basketball. A selectively classified eighth grader is entitled to five consecutive years of eligibility, pursuant to the Commissioner of Education's Duration of Competition Regulation. However, in January 2013 the athletic director at Gates-Chili requested Section V of New York State Public High School Athletic Association ("Section V") grant Diona Johnson a sixth year of eligibility to play high school basketball in the 2013-2014 school year. By e-mail of January 22, 2013 the Executive Director of Section V, Ed Stores, advised Petitioners that the eligibility of Diona Johnson ends at the conclusion of the 2012-2013 school year.

Gates-Chili then submitted a formal "Application for Extension of Eligibility" requesting an extension of Diona Johnson's eligibility to play basketball for the 2013-2014 school year. Pursuant to the Petition, a full hearing was held on April 17, 2013. By letter of May 3, 2013 Ed Stores, Executive Director of Section V, advised that the Executive Committee of Section V denied the appeal of the decision not to grant an extra year of eligibility to Diona Johnson. The Executive Committee advised as follows: [*2]

The Executive Committee does not feel we can change the interpretation of an SED regulation that had the effect of beginning her eligibility when she was selectively classified at Churchville-Chili CSD during her first year as an eight grader. We also believe that the parents were made aware of her eligibility status when they decided to repeat her in the eighth grade at Aquinas.

(May 3, 2013 letter of Ed Stores, Exec. Dir. Section V). This letter advised that the decision could be appealed to the NYSPHSAA by calling the Executive Director. Petitioners appealed the Section V Decision.

The Appeal Panel of the New York State Public High School Athletic Association, Inc., convened on August 5, 2013 to consider the appeal of Gates-Chili challenging the determination of the Section V Executive Committee to deny a sixth year of eligibility to Diona Johnson for the 2013-2014 basketball season. Gates-Chili appealed on the basis that the decision of the Section V Executive Committee is contrary to the evidence. The arguments of Gates-Chili and the Section V Executive Director were submitted. The Appeal Panel considered the arguments of the parties, including that representations were made to the parents about eligibility and the parents decision to have the student repeat 8th grade. The August 12, 2013 Decision of the Appeal Panel of NYSPHSAA ("Decision") found that the decision of the Section V Executive Committee was not contrary to the evidence; the student does not qualify for an extension under the Commissioner's Duration of Competition Regulation; and that Section V and the Appeal Panel are bound by the parameters of the Commissioner's Regulation. The Appeal Panel concluded that the student was not entitled to an additional year of eligibility. The Appeal Panel denied the appeal by Gates-Chili, and upheld the decision of the Section V Committee which had denied the request of Diona Johnson for an extension of her eligibility for an additional year.

ARTICLE 78

The Petitioners seek a judgment annulling and vacating the August 12, 2013 Decision of Respondent, NYSPHSAA, which denied Petitioners' appeal seeking athletic eligibility for Diona Johnson for the 2013-2014 school year. In addition Petitioners seek a judgment ordering that Diona Johnson have such athletic eligibility. Petitioners assert that this Decision should be annulled and vacated based upon the Decision being arbitrary and capricious, unreasonable, and wholly unsupported by the facts and the law.

Petitioners submit that Diona Johnson's actual age, when she selectively classified, was that of a 7th grader. Petitioners argue that she gains no competitive advantage by playing an extra year as she would be the same age as other seniors. The decision of her parents to have her placed in the age-appropriate grade level by retaking eighth grade when at Aquinas in 2009-2010 is argued to be within the "similar circumstances" exception set forth in the Commissioner's Regulations. It is also [*3]posited that misrepresentations made by Churchville-Chili district personnel and the athletic director at Aquinas Institute constitute unique or exceptional circumstances to justify an additional year of eligibility. Petitioners argue that had they known of the eligibility rules (and/or the difficulty of gaining an exception to them) they would not have chosen a path that would have caused Diona to lose her senior year of eligibility.

Further Petitioners argue for the first time in this Article 78 proceeding that it is significant (if not controlling) that a parental permission form required by the Commissioner's Regulations to be signed and kept on file for a student who is selectively classified is not submitted and appears to be missing.

A.Law

In this Article 78 proceeding the standard is well established. "[W]hen the issue concerns the exercise of discretion by the administrative tribunal: The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is "arbitrary and capricious" (citations omitted)" (Pell v Bd of Education of Union Free School Dist No. 1 of the Towns of Scarsdale and Mamaroneck, 34 NY2d 222, 230-31 [1974]; see Wooley v New York State Dept. of Correctional Svcs., 15 NY3d 275,280 [2010]). The test has been defined as follows:

the arbitrary or capricious test chiefly "relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact." (citation omitted)

(Pell at 231). The Court may not impose its own judgment upon the decision making of the tribunal.

In the realm of high school athletics, the Fourth Department has stated the well-settled principle:

[T]he courts should not interfere with the internal affairs, proceedings, rules and orders of a high school athletic association unless there is evidence of acts which are arbitrary, capricious or an abuse of discretion [citations omitted]. Whether the acts are arbitrary and capricious "relates to whether * * * the committees' actions have a sound basis in reason and have a foundation in fact [citation omitted]. The test is whether there is a rational basis."

(Gerard v Section III of the New York State Public High School Athletic Assoc., Inc., 210 Ad2d 938,939-40 [4th Dept. 1994]; see Pratt v New York State Public High School Athletic Assoc., Inc., 133 Misc 2d 679 [Sup. Ct., Nassau Cty 2986]). A determination denying an extension of eligibility has a rational basis and is not arbitrary and capricious when the record establishes that a student had [*4]four years of eligibility at the school he attended; and no evidence was submitted to grant an extension of eligibility (Gerard at 940).

B.Analysis

The Appeal Panel found that the decision of the Section V Executive Committee to deny the request for a one year extension of eligibility to Diona Johnson was not contrary to the evidence presented; that the student does not qualify for an extension under the Commissioner's Duration of Competition Regulations; and that the Section V Executive Committee and the Appeal Panel are bound by the parameters of the Commissioner's Regulations. The Decision concludes that Diona Johnson is not entitled to an additional year of eligibility; denies the appeal; and upholds the decision of the Section V Executive Committee.

This Court must review the Decision of the Appeal Panel to determine whether it is arbitrary and capricious, or without foundation in fact. Based upon the documentation presented on this Article 78 petition, it is demonstrated that the Appeal Panel and the Section V Executive Committee assessed and considered the application of the Commissioner's Regulations, the number of years Diona Johnson had played basketball, and whether the parents were advised of the eligibility restrictions imposed when a student is selectively classified.^[FN1]In reaching their decisions both the Appeal Panel and the Section V Executive Committee viewed the Duration of Competition Regulation imposing a limit on an eighth grader, who is selectively classified, of five consecutive seasons of a sport commencing with the pupil's entry into the eighth grade (8 NYCRR §135.4[c][7][ii][b][1]). The Appeal Panel determined that the Section V Executive Committee properly found that the exceptions in the regulations to extend eligibility for competition when a student's "failure to enter competition during one or more seasons of a sport was caused by illness, accident, or similar circumstances beyond the control of the student . . ." did not apply (8 NYCRR §135.4[c][7][ii][b][1][I]).

The Appeal Panel improperly states that the phrase "other similar circumstances beyond the control of the student . . ." means "similar circumstances related to an illness or an accident." A prior Court determined that this is an improper limitation that is not stated in the Education Commissioner's Regulation and this Court agrees (Pena v New York State Public High School Athletic Assoc., Index #2013-1322 (Onondaga Cty, J.Murphy [3/25/2013]). Although the Appeal Panel misinterprets that portion of the regulation, that error is harmless as the issue of whether there [*5]were "other similar circumstances beyond the control of the student . . ." is not, and could not, be reached by the Appeal Panel because the student did not miss a year of competition.

The facts presented show that Diona Johnson did not "fail to enter the sport of basketball" during an eligible season due to illness or accident or similar circumstances. Diona Johnson played five consecutive seasons of basketball commencing with her entry into eighth grade in 2008-2009. Petitioner does not meet the threshold of missing a season of competition for application of the exception to the Regulation. In addition, if Diona Johnson had missed a basketball season ( and she did not) then the exception to the Duration of Competition Regulation requires that the reason a season was missed be circumstances "beyond the control of the student."

Petitioner's request for a sixth year of eligibility through the 2013-2014 season is based on the parents voluntarily having the student retake eighth grade. There is no evidence of the circumstances being "beyond the control of the student". Instead retaking eighth grade was a planned circumstance based on a voluntary decision (see Pratt v New York State Public High School Athletic Assoc., Inc., 133 Misc 2d 679 [Sup Ct. Nassau Cty 1986]). Further, the Appeal Panel and Section V Executive Committee considered the parents' claim that they were not informed, were misled, or were misinformed concerning the Duration of Competition Regulations as applied to Diona Johnson. However, based upon the proffered evidence, and the Appeal Panel's conclusion that the parents were aware of the expiration of eligibility prior to her senior year, the Appeal Panel held that there was no basis to entitle the student to an extension of eligibility.

Based on the evidence presented, the Appeal Panel determined that the decision of the Section V Executive Committee that Diona Johnson does not qualify for an extension of eligibility under the Duration of Competition Regulation is correct. This determination of the Appeal Panel has a foundation in fact and is justified. Their determination has a rational basis and this Court may not interfere (see Gerard at 939-40).

Upon review of the facts presented on this Article 78 Petition, the August 12, 2013 Decision of the Appeal Panel of NYSPHSAA is not arbitrary and capricious, has a rational basis set forth, and the action taken to deny the appeal is justified. There is no basis presented in this Article 78 proceeding to annul and vacate the August 12, 2013 Decision of the Respondent, NYSPHSAA.

Pursuant to CPLR §7806 the Article 78 Petition of Petitioners, Rodney and Donnarae Johnson, as parents and natural guardians of Diona Johnson, for a judgment annulling and vacating the August 12, 2013 Decision of Respondents, New York State Public High School Athletic Association, which denied Petitioner's appeal seeking athletic eligibility for Diona Johnson for the 2013-2014 school year, and ordering that Diona Johnson have such athletic eligibility, is DISMISSED. The determination of the Respondents, New York State Public High School Athletic Association, in its Decision of August 12, 2013 is CONFIRMED. [*6]

SUBMIT ORDER

Counsel for the Respondents, NYSPHSAA, shall submit an Order, with this original Decision attached, upon approval of all Counsel.

Dated:October 24, 2013

Rochester, New York

_________________________________________

Thomas A. Stander

Supreme Court Justice

Footnotes

Footnote 1: Although argued on this Article 78 Petition, neither the decision of the Section V Executive Committee nor the Appeal Panel Decision indicate that Petitioners raised any issue about the parental consent forms being signed or maintained by Churchville-Chili. This Court is bound to review only those matters raised before the Appeal panel and the Section V Executive Committee. However, even if this issue had been previously raised, a record-keeping violation does not change the Duration of Competition Regulation.