39 A.D.2d 399 | N.Y. App. Div. | 1972
Lead Opinion
This is an appeal from a judgment of the Supreme Court at Special Term, entered June 15, 1972 in Schenectady County, in a proceeding pursuant to article 78 of the CPLB, which granted respondent’s request for an order requiring appellant to conduct a new election.
Bespondent, aged 18, filed a petition for nomination as a candidate for election to fill a seat on the Schenectady Board of Education. The petition was accepted as sufficient and timely filed and her name was thereupon placed on the ballot by the appellant board for the election to be held on May 2, 1972. Because of an opinion of the Attorney-General, received by appellant on May 1, 1972, which declared that no person may hold the office of member of a board of education who has not attained the age of 21 years, appellant ordered that the lever over the name of respondent on the ballot be locked. This decision was not reached by the board until the early hours of May 2,1972 and respondent was immediately notified by phone. Subsequent to the day of the election respondent instituted this article 78 proceeding seeking to have the election invalidated and a new one ordered.
Special Term concluded, among other things, that subdivision 2 of section 2608 of the Education Law failed to meet the due process requirements of the Fourteenth Amendment of the United States Constitution; that subdivision 1 of section 2609 of such law makes section 145 of the Election Law applicable
Simply stated, the primary issue to be resolved is whether respondent was eligible to sit on the Schenectady Board of Education as the law existed on May 2,-1972. The pertinent fact is respondent’s age which is conceded to be 18. None of the safeguards required by the Fourteenth Amendment could alter this fact. “ The extent to which procedural due process must be afforded * * * is influenced by the extent to which [one] may be ' condemned to suffer grievous loss,’ ” (Goldberg v. Kelly, 397 U. S. 254, 262-263). The “ right ” of respondent which stood to be lost involved only a question of law, i.e., her eligibility to hold the particular office. A hearing could produce nothing to change .the basic and controlling fact of respondent’s age. Consequently, under the circumstances, we find no denial of due process for failure to afford notice and an opportunity to be heard.
We disagree also with Special Term’s conclusion that section 145 of the Election Law is applicable. That statute deals with the sufficiency of nominating petitions and certificates of designation, and has no application to a candidate’s substantive qualifications to hold office.
By the Twenty-Sixth Amendment to the Federal Constitution, 18-year-olds were granted the right to vote. At the time of the passage of this amendment, and at the present .time, subdivision 7 of section 2502 of the Education Law provided: “ No person shall be eligible to the office of member of the board of education who is not a qualified voter ”. Subdivision 2 of section 2603 of such law provided that one has to be 21 years of age to be entitled to vote at a school election. There is no doubt that this latter' statutory provision has been superseded by the Twenty-Sixth Amendment. However, since members of the board of education are public officers (see Metzger v. Swift, 258 N. Y. 440), it is also necessary to examine section 3 of the Public Officers Law which governs the qualifications for public officers and provides: “No person shall be capable of holding a civil office who shall not, at the time he shall be chosen thereto, have attained the age of twenty-one years ”. We recognize that there was a conflict at the time of the election between the Education
The judgment should be reversed, on the law and the facts, and petition dismissed.
Dissenting Opinion
The school board election should be invalidated and a new one ordered. A serious question is raised by the board ordering respondent’s name off the ballot late in
The Board of Education does not deny knowledge of the age of respondent at the time she filed her petitions. A good deal of newspaper publicity attended her candidacy as well as at least one other in the capital district area. The failure of the board to reckon with the age qualification of respondent at the time she filed the petition, or very soon thereafter, induced the change of position of the respondent and her supporters who, on the eve of .the election, would be deprived of their popular will by the unilateral action of the board. The board’s reliance upon an opinion of the Attorney-General does not change the effect of the board’s action since that opinion merely held .that any person under the age of 21 could not be a member of a Board of Education. This permitted of .the fair and more logical approach of keeping respondent’s name on the ballot and after the election raising the qualification issue, if she won the election. A quo warranto proceeding would be .the proper remedy subsequent to the orderly elective process and, if removed, the candidate receiving .the next highest votes would be entitled to the position.
Another consideration is one of due process to respondent herself. Notwithstanding the concession of her age, the acceptance of her candidacy on April 12 demonstrated that the Twenty-Sixth Amendment had created a real issue as to the concomitant lowering of the age to hold public office. Although
The judgment should be modified to invalidate the election or order a new election.
Gbeenblott, J. P., Sweeney and Simons, JJ., concur in Per Curiam opinion; Kane, J., dissents and votes to modify in a separate opinion; Cooke, J., not voting.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.