Supreme Court, Monroe County, August 2, 2019

Alison K.L. Moyer for petitioners.

Patrick Beath and Timothy R. Curtin for City of Rochester and others, respondents.

Pending before this court is a hybrid Civil Practice Law and Rules article 78 and declaratory judgment special proceeding, accompanied by a permanent injunction request.

This court hereby grants the verified petition and denies the City respondents' counterclaim—both for the reasons set forth hereinafter.

The court is compelled to begin by acknowledging the great challenges facing the Rochester City School District, and the utmost importance a sound education is in the lives of our children. The City respondents' proactive proposals for remedying the situation are admirable, but not legally permissible, as will be explained hereinafter.

Petitioners' Legitimate Standing

A threshold matter to tackle is the City respondents' standing defense, which falters. (See e.g. Matter of Elefante v Hanna, 54 AD2d 822, 823 [4th Dept 1976] [the petitioner had standing{**65 Misc 3d at 1095} to attack, by means of article 78, administrative action done pursuant to an allegedly invalid law, and was entitled to seek declaratory relief with respect to the impending submission of the proposed new city charter to the Utica electorate], mod on other grounds 40 NY2d 908 [1976] [dismissed due to laches, not lack of standing].) As in Elefante, the present petitioners also have standing to assail the impending referendum seeking to negate the Board of Education positions and those members' salaries.

[1] The City respondents' interpretation of the standing principle is too narrow. As the appellate courts have articulated: "In [a] matter of significant municipal concern to the citizens . . . involving the actions of municipal officials . . . [a] petitioner has standing to bring [an] article 78 proceeding even though he does not show a personal grievance or a personal interest in the outcome." (Matter of Andrews v Nagourney, 41 AD2d 778, 778 [2d Dept 1973] [emphasis added], affd 32 NY2d 784 [1973]; see also Matter of Julian v La Salle, 22 AD3d 1033, 1034 [4th Dept 2005] [a petitioner's standing is afforded where "the case involves a 'matter of significant municipal concern' "], citing Andrews.)

This broad standing rule has been applied in the educational context to permit boards of education to sue under article 78 "as part of the school board's duty and responsibility to provide a system of public education." (Matter of Board of Educ. of Roosevelt Union Free School Dist. v Board of Trustees of State Univ. of N.Y., 282 AD2d 166, 171 [3d Dept 2001]; Board of Educ. of Liverpool Cent. School Dist. v Ambach, 108 Misc 2d 632, 633-634 [Sup Ct, Albany County 1981] [rejecting the defendant's standing objection].)

As framed by the City respondents, the present issue is of paramount public concern, and that is precisely why they seek the public's input to chart a course of action. That proffered course is the temporary removal of the Board of Education and the elimination or reduction of [*2]those members' salaries. With that overtly articulated objective in mind, saying that the Board of Education, and the directly impacted School District, have no voice to complain is simply untenable. Further, the City respondents' conceded salary removal/reduction effort, all on its own, serves as an adequate injury to the Board of Education members to afford standing to contest the referendum as that is a concrete financial harm. Contrary to the City respondents' suggestion, petitioners' standing does not rise and fall on{**65 Misc 3d at 1096} the ultimate success of their advisory referendum contention, but rather the real effects should they lose. Stated differently, a party need not be right on the law to gain access to the courthouse. (See Matter of Colella v Board of Assessors of County of Nassau, 95 NY2d 401, 410 [2000] ["the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny"].)

In all, petitioners have the right to prosecute this proceeding.^[FN1]

Article 78 and Declaratory Judgment Standards

To begin, article 78 "is an appropriate method of collaterally attacking an administrative action threatened or taken pursuant to an allegedly invalid law." (Belle v Town Bd. of Town of Onondaga, 61 AD2d 352, 355 [4th Dept 1978].) As clarified at oral argument, petitioners seek varied forms of article 78 relief—two of which this court deems meritorious.

First, a writ of prohibition restrains an official who acts without, or in excess of, his or her jurisdiction. (See CPLR 7803 [2]; Matter of Van Wie v Kirk, 244 AD2d 13, 24 [4th Dept 1998].) The granting of prohibition relief is appropriate when a petitioner shows a clear legal right thereto. (See Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]; Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887 [4th Dept 2002].) A writ of prohibition may be issued "in the sound discretion of the court." (Matter of Soares v Herrick, 20 NY3d 139, 145 [2012].)

Second, mandamus to review relief is set forth in CPLR 7803 (3) which permits a determination to be set aside if "made in violation of lawful procedure [or] was affected by an error of law." (See also New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 205 [1994] [an alleged error of law most often involves an allegation that the agency improperly interpreted or applied a statute or regulation].)

Besides article 78 relief, and separate and distinct therefrom, petitioners—and also the City respondents—seek the issuance {**65 Misc 3d at 1097}of a favorable declaratory judgment. Declaratory judgment relief is set forth in CPLR 3001, which provides that "[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed." (See also CPLR 3017 [b].)

"[A] declaratory judgment is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies." (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147 [1983] [internal quotation marks omitted].) It is available in a wider range of circumstances than CPLR article 78 relief. (See Matter of Morgenthau v Roberts, 65 NY2d 749 [1985].) As the Court of Appeals has decreed about declaratory judgments:

"The use of a declaratory judgment, while discretionary with the court, is nevertheless dependent upon facts and circumstances rendering it useful and necessary. The discretion must be exercised judicially and with care. It is usually unnecessary where a full and adequate remedy is already provided by another well-known form of action. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations." (James v Alderton Dock Yards, 256 NY 298, 305 [1931] [emphasis added and citation omitted].)

The foregoing legal standards will next be applied to each side's claims before this court.

Purely Advisory Referendum

Petitioners are entitled to all forms of CPLR relief to invalidate the proposed referendum (see e.g. Matter of Doorley v DeMarco, 106 AD3d 27 [4th Dept 2013] [granting both article 78 prohibition relief, as well as a declaratory judgment]), as well as the corresponding permanent injunction. (See CPLR 7806 [in awarding article 78 relief, a court may "prohibit specified action by the respondent"].)

In "the absence of express statutory authority, an advisory referendum by a city is not authorized." (Matter of Kupferman v Katz, 19 AD2d 824, 824 [1st Dept 1963], affd 13 NY2d 932 [1963]; see also Matter of Brucia v County of Suffolk, 90 AD2d 762 [2d Dept 1982].) This is so because a municipality cannot{**65 Misc 3d at 1098} "avoid governmental responsibility and shift the burden of decision [regarding police services] to a public poll." (Matter of Woodburn v Village of Owego, 151 AD3d 1216, 1220 [3d Dept 2017]; Matter of Silberman v Katz, 54 Misc 2d 956, 959 [Sup Ct, NY County 1967] [a vote on public policy issues is infirm], affd 28 AD2d 992 [1st Dept 1967].) An impermissible advisory popular vote is one which has "no legal effect or consequences." (Mills v Sweeney, 219 NY 213, 217 [1916].)

One way that a referendum vote would be inconsequential is if it would be preempted by a higher law, such as a state law. (See generally Matter of Brucia v County of Suffolk, 90 AD2d 762, 762-763 [2d Dept 1982].) On the preemption doctrine, the Court of Appeals has decreed that

"[it] represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies 'the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern.' Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field.

"Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute. Such local laws, 'were they permitted to operate in a field preempted by State law, would tend to inhibit the [*3]operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns.' Moreover, the Legislature need not express its intent to preempt. That intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area. A comprehensive, detailed statutory scheme, for example, may evidence an intent to preempt." (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989] [deciding that local legislation was preempted] [emphasis added and citations omitted]; see also Eric M. Berman, P.C. v City of New York, 25 NY3d {**65 Misc 3d at 1099}684, 693 [2015]; Matter of Haskell v Pattison, 2001 NY Slip Op 40134[U] [Sup Ct, Rensselear County, Sept. 7, 2001].)

Here, and contrary to the City respondents' position at oral argument, this court finds that the State unequivocally occupies the entire field of public education; therefore, a direct conflict between laws is unnecessary to trigger preemption. Even silence of the City Charter by removal of certain provisions, as the City respondents advocate, is fatal in the face of an already occupied field.

The guiding legal instrument to start the court's preemption analysis must be the State Constitution which provides that

"(a) [e]xcept as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to:

"(1) [t]he maintenance, support or administration of the public school system, as required or provided by article XI of this constitution" (NY Const, art IX, § 3 [emphasis added]).

"The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." (NY Const, art XI, § 1.)

[2] Per the Constitution, the state legislature has exclusive authority to oversee the educational scheme in New York. In an exercise of that power, the Education Law was enacted to create and manage the boards of education as "separate corporate bodies representing the state." (Matter of Divisich v Marshall, 281 NY 170, 173 [1939] [emphasis added]; see also Education Law §§ 2551, 2553; Matter of Board of Educ., City of Buffalo v City of Buffalo, 32 AD2d 98, 100 [4th Dept 1969] ["the State has reserved unto itself the control over and the authority to regulate all school matters"].) The Charter of the City of Rochester has long expressly acknowledged section 2553's governance (§ 2-1 n 3; see NY St Cts Elec Filing [NYSCEF] Doc No. 25).^[FN2]

Besides the foregoing Constitution, statute, and charter, the State's primary responsibility for public schools is also documented in case law.

As the Court of Appeals has decreed:

"it has long been settled that the administration of{**65 Misc 3d at 1100} public education is a State function [*4]to be kept separate and apart from all other local or municipal functions. Although members of a Board of Education in a city perform tasks generally regarded as connected with local government, they are officers of an independent corporation separate and distinct from the city, created by the State for the purpose of carrying out a purely State function and are not city officers within the compass of the Constitution's home rule provisions. 'If there be one public policy well-established in this State' . . . 'it is that public education shall be beyond control by municipalities and politics.' " (Lanza v Wagner, 11 NY2d 317, 326 [1962] [emphasis added and citations omitted]; see also Matter of Board of Educ. of City School Dist. of City of N.Y. v City of New York, 41 NY2d 535 [1977]; Board of Educ. of City of Syracuse v King, 280 App Div 458, 463 [4th Dept 1952] ["The policy of the State has been to place public education beyond the control of municipalities"; therefore, "(a) board of education is not a department of a city but is an independent corporate body"].)

Lanza and Board of Educ. of City of Syracuse could not be more clear in their resounding condemnation of local interference with boards of education, and the corresponding inviolate independence of those entities from municipal control under the guise of the Municipal Home Rule Law—the proffered legal predicate for the subject referendum. (See also Matter of Board of Educ. of Yonkers City School Dist. v De Santis, 136 Misc 2d 636, 640 [Sup Ct, Westchester County 1987], affd as mod 133 AD2d 402 [2d Dept 1987].) To this precise point, the Fourth Department has recognized that the petitioner Rochester City School District "is a separate legal entity from the . . . [C]ity [of Rochester]." (Hedman v City of Rochester, 64 AD2d 817, 818 [4th Dept 1978], affd 47 NY2d 933 [1979]; see also Board of Educ. of Union Free School Dist. No. 4 of Town of Greece v Board of Educ. of City of Rochester, 43 Misc 2d 803, 806 [Sup Ct, Monroe County 1964], affd 23 AD2d 805 [4th Dept 1965], lv denied sub nom. May v Board of Educ. of City of Rochester, 15 NY2d 487 [1965].) It is this separation and independence that exempts boards of education from the Municipal Home Rule Law. (See Lanza, 11 NY2d at 326.)

Without the Municipal Home Rule Law the crux of the City respondents' whole referendum justification falls apart. More{**65 Misc 3d at 1101} specifically, Municipal Home Rule Law § 23 (2) (e)'s provision covering the removal of an elected official, or the adjustment of their pay, is inapplicable as the Board of Education, i.e., the Commissioners of Schools, is not a traditional city official contemplated by that section, but rather a state agent. (See Matter of Ithaca City School Dist. v City of Ithaca, 82 AD3d 1316, 1317-1318 [3d Dept 2011]; Matter of Fossella v Dinkins, 130 Misc 2d 52, 60 [Sup Ct, Richmond County 1985] [ruling that the proposed amendment was not subject to mandatory referendum as defined in section 23].) As explained in Fossella, a "court cannot presume a construction of the referendum that would impute to the electorate a desire to promulgate ultimately meaningless legislation." (Id. at 58.) By removing section 23 (2) (e), the advisory referendum loses statutory support, and in turn, fails.^[FN3] (See Matter of Astwood v Cohen, 291 NY 484, 491 [1944].) This is by every definition meaningless, and [*5]thus gives rise to an improper advisory referendum. (See e.g. Matter of Citizens for Orderly Energy Policy [COEP] v County of Suffolk, 90 AD2d 522 [2d Dept 1982] [adjudicating that the county legislature was without authority to place the proposed referendum on the general election ballot].)

In sum and substance, and what the whole preceding legal discussion boils down to, is that the City respondents' actions—although unquestionably well intended—are matters reserved for State consideration. It is the state legislature's prerogative to entertain and commence the appropriate mechanisms to gain direct control over the City School District, as was done in Lanza—a case the City respondents acknowledged was "relevant."^[FN4] This critical decision must be made from the top down, and after which the revised Education Law will usurp—by {**65 Misc 3d at 1102}simple operation of law—any non-compliant, and stale, City Charter provisions. (See Matter of Aetna Cas. & Sur. Co. v County of Nassau, 221 AD2d 107, 118 [2d Dept 1996] [preemption prevented conversion of charter].)^[FN5]

In all, petitioners are awarded the totality of their requested relief concerning the referendum. (See e.g. Matter of Green v DeMarco, 87 AD3d 15, 20 [4th Dept 2011] [concluding that both prohibition and declaratory judgment relief were warranted].)

Flawed Advocacy Letter

Petitioners' final argument surrounds the propriety of the City's July mailing. As with petitioners' other assertions, their claim against the letter likewise succeeds. (See e.g. Matter of Phillips v Maurer, 67 NY2d 672, 674 [1986] [school budget advertisement exceeded the publication of information "reasonably necessary" to educate the public]; Matter of Schulz v McCall, 220 AD2d 984, 985 [3d Dept 1995] [news article struck down].) Per Phillips and Schulz, the instant letter must also be deemed improper.

As cautioned by the Court of Appeals, a political faction cannot

"disseminate information, at the taxpayers' expense, patently designed to exhort the electorate to cast their ballots in support of a particular position . . . It has been stated in a different context that '[t]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by [the] agency of any issue, worthy as it may be' " (Phillips, 67 NY2d at 674 [emphasis added and citation omitted]).

The Phillips Court cited Stern v Kramarsky (84 Misc 2d 447 [Sup Ct, NY County 1975]) which had a much more exhaustive analysis as follows:

"The spectacle of . . . agencies campaigning for or against propositions . . . to be voted on by the public, albeit perhaps well-motivated, can only demean the democratic process. As [an] agency supported by{**65 Misc 3d at 1103} public funds they cannot advocate their favored position on any issue . . . [T]hey must maintain a position of neutrality and impartiality.

"It would be establishing a dangerous and untenable precedent to permit the government or any agency thereof, to use public funds to disseminate propaganda in favor of or against any issue or candidate. This may be done by totalitarian, dictatorial or autocratic governments but cannot be tolerated, directly or indirectly, in these democratic United States of America. This is true even if the position advocated is believed to be in the best interests of our country . . .

"Public funds are trust funds and as such are sacred and are to be used only for the operation of government. For government agencies to attempt to influence public opinion on such matters inhibits the democratic process through the misuse of government funds and prestige. Improper expenditure of funds, whether directly through promotional and advertising activities or indirectly through the use of government employees or facilities cannot be countenanced. People of all shades of opinion and belief contribute these funds from one source or another. No agency may misuse any such funds for promoting its own opinions, whims or beliefs, irrespective of the high ideals or worthy cause it espouses, promotes or promulgates." (Stern, 84 Misc 2d at 452 [granting injunction restraining the defendants from campaigning to achieve the passage of an amendment] [emphasis added and citation omitted]; see also Town of Roxbury v Rodrigues, 277 AD2d 866, 867 [3d Dept 2000] [noting restrictions which prevent municipal governments from exhorting the electorate to vote for particular propositions which they support].)

With the above rationale in mind, the court carefully examined the July 12th letter and found that it runs afoul of the same (NYSCEF Doc No. 10; see e.g. Matter of Schulz v State of New York, 86 NY2d 225, 236 [1995] [deciding that subject newsletter went "well beyond simply conveying information on a political issue and urging voters to participate in the democratic process"]).

As stated at the start, this court does not question the sincerity of the City respondents' intentions to better the School{**65 Misc 3d at 1104} District. However, that good faith does not salvage the letter from judicial critique. The letter's message is a loud and clear endorsement of the referendum, and strongly suggests that the voter should be too. Although the letter does not squarely tell the residents what their vote should be, i.e., yes or no, it nevertheless conveys that same recommendation. From the letter's phrasing, the author's position is evident. In fact, the letter's ending asks the reader to "join with me and vote." In isolation, this could appear innocuous, but construed with the entirety of the letter, it smacks of prohibited advocacy.

Moreover, the City respondents' focus on the factual/statistical content of the letter does not salvage it given its overall implication. (See Schulz v State, 86 NY2d at 235.) As stated in Schulz v State,[*6]"[a]lthough the newsletter contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support on that issue, the paper undisputably ' "convey[ed] . . . partisanship, partiality . . . [and] disapproval by [an] agency of [an] issue." ' " (Id.; see also Schulz v McCall, 220 AD2d at 986 ["the mere existence of some factual information 'that, standing alone, would be considered a proper attempt to educate the public' . . . will not rectify the constitutional violation"].) As a consequence of this ruling, the taxpayer money should not have been spent. Despite the violation, petitioners do not request any form of monetary penalty, so they are content with the moral victory.

The City Respondents' Counterclaim

The very last item for this court's consideration is the counterclaim, which is properly before this court (see CPLR 402, 7804 [d]), but which cannot prevail.

In their counterclaim, which seemingly concedes the referendum issue, the City respondents ask this court to "blue-line" and convert, via a declaratory judgment, Local Law No. 4 from a legislative act intended for implementation via only a successful majority public vote (NYSCEF Doc No. 9 at 4, § 5), to one already in force and effect. Based upon the requested conversion, the City respondents further seek disgorgement of the Board of Education members' salaries since July 8th.^[FN6] This court declines to do so. (See e.g. City of New York v Patrolmen's {**65 Misc 3d at 1105}Benevolent Assn. of City of N.Y., 89 NY2d 380, 394 [1996] [rejecting alternative application to uphold only part of subject law]; Haskell, 2001 NY Slip Op 40134[U] [local law not in need of a mandatory referendum would not be severed to allow it to stand without the offending provision]; Matter of Noonan v O'Leary, 206 Misc 175 [Sup Ct, Monroe County 1954] [concluding that the invalid portion of City of Rochester local law rendered the entire proposal invalid], affd 284 App Div 646 [4th Dept 1954].)

What is being sought of the court is application of the severability doctrine. (See generally Alaska Airlines, Inc. v Brock, 480 US 678 [1987]; Parker v Town of Alexandria, 163 AD3d 55, 58 [4th Dept 2018].) The Court of Appeals set forth the doctrine as follows:

" 'The question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots.'

"This exercise

" 'requires first an examination of the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to [*7]decide which measure would have been enacted if partial invalidity of the statute had been foreseen' " (CWM Chem. Servs., L.L.C. v Roth, 6 NY3d 410, 423 [2006] [citations omitted]).

In assessing severability, the Court of Appeals has warned against court actions that "invalidate the dog, while preserving the tail." (Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39, 48 [1992].){**65 Misc 3d at 1106}

In this case, there is inadequate evidence of legislative intent from which to glean the City Council's wishes in regard to an immediately effective local law, not contingent on a public vote. (See e.g. Parker v Town of Alexandria, 138 AD3d 1467, 1468 [4th Dept 2016] [refusing to adjudicate severability contentions in the absence of clear legislative intent]; Mayor of City of N.Y. v Council of City of N.Y., 235 AD2d 230, 231 [1st Dept 1997] [declining to sever any portion of a local law without proof that the legislators wished a partial version of the law to be enforced].) The Local Law does not even have a severability clause, from which some legislative intent to save the remaining portions thereof could be inferred. (Cf. St. Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139, 146 [4th Dept 2007] [severability clause permitted valid portions of the law to still be upheld as it was a presumption of legislative intent to keep the legal parts in place].)

More importantly, it is not for this court to legislate—that would be a grave violation of the separation of powers between the coequal branches of government. Rather, the legislative matter must go back before City Council for a new vote consistent with this decision, order, and judgment. This is the legally mandated course of action, as well as the prudent one. The importance of this issue cannot be overstated, and as such, necessitates the City Council's meticulous reevaluation.

Based upon all of the foregoing, it is ordered, adjudged, and decreed that the verified petition is granted (see CPLR 7803 [2], [3]); and it is further ordered, adjudged, and decreed that a declaratory judgment is issued in petitioners' favor indicating that Local Law No. 4 is invalid, and the ensuing referendum is a void advisory referendum (see CPLR 3001, 3017 [b]); and it is further ordered, adjudged, and decreed that a permanent injunction is issued barring the advisory referendum from being included on the ballot for the November general election (see CPLR 7806); and it is further ordered, adjudged, and decreed that the City respondents' counterclaim is denied, and a declaratory judgment is issued against implementing a materially revised version of Local Law No. 4.