54 A.D.2d 779 | N.Y. App. Div. | 1976
Appeal from a judgment of the Supreme Court, entered September 29, 1976 in Albany County, which granted petitioner’s application, in a proceeding pursuant to section 330 of the Election Law, to declare invalid the petition designating appellant, Eileen Gallagher, as a candidate for the public office of Member of the Board of Education of the City School District of Albany, New York, in the general election to be held on November 2, 1976. On September 13, 1976 appellant, Eileen Gallagher, was nominated, by petition, as a candidate in the November 2 general election for the public office of Member of the Board of Education of the City School District of the City of Albany (Education Law, § 2502, subd 9). Petitioner, Simon Rosenstock, a voter of the City of Albany, commenced the present proceeding challenging appellant’s candidacy on the ground that she was ineligible to serve as a member of the board of education because her husband, James Gallagher, with whom she resides, is currently a member of the same board. (Education Law, § 2103, subd 3). Special Term sustained petitioner’s challenge and the present appeal ensued. Subdivision 3 of section 2103 of the Education Law provides that no more than one member of a family can be a member of the same board of education in any school district. Contrary to appellant’s contentions, we find that this provision is applicable to the City School District of the City of Albany and that appellant falls precisely within the scope of its prohibition. Appellant also contends that this provision of the Education Law constitutes an unconstitutional infringement of both the electorate’s right to vote and her personal right to seek public office under the due process and equal protection clauses of the Federal and State Constitutions (US Const, 14th Arndt, § 1; NY Const, art, I, §§ 1, 6,11). It is established that where the Legislature excludes a certain class of citizens from eligibility to hold public office, the electorate’s right to vote is thereby infringed (Landes v Town of North Hempstead, 20 NY2d 417, 421-422). The right to vote is a " 'fundamental political right, because preservative of all rights’ ” (Harper v Virginia Bd. of Elections, 383 US 663, 667). Where State legislation directly infringes upon that right, as where certain classes of citizens are denied the right to vote, the State has the burden of demonstrating that the legislation is necessary to promote a compelling State interest before the legislation can be upheld as constitutional (Dunn v Blumstein, 405 US 330, 335, 336; Kramer v Union School Dist., 395 US 621, 626; Harper v Virginia Bd. of Elections, supra; see, also, Alevy v Downstate Med. Center of State of N. Y, 39 NY2d 326). We are of the opinion, however, that where, as here, the legislation in question does not directly infringe upon the right to vote, but only indirectly infringes upon that right by excluding a certain class of citizens from eligibility to seek public office, the less strict standard of judicial review is applicable to test the constitutionality of that legislation. Accordingly, the legislation here in issue is entitled to the traditional presumption of constitutionality and the appellant has the burden of overcoming this presumption beyond a reasonable doubt (Wiggins v Town of
