Appeal of ANN and JAMES F. RYAN from action of the Board of Education of the Westport Central School District regarding voter eligibility.

Appeal of JAMES STARBUCK from action of the Board of Education of the Westport Central School District regarding voter eligibility.

Appeal of MARY FRANCES and GEORGE L. TOOMEY from action of the Board of Education of the Westport Central School District regarding voter eligibility.

Decision No. 16,202

(February 17, 2011)

Stafford, Piller, Murnane, Plimpton, Kelleher & Trombley, PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

STEINER, Commissioner.--In three separate appeals, petitioners challenge the determination of the Westport Central School District (“respondent”) to reject their applications for absentee ballots for the district’s “next and succeeding” elections.  Because the appeals present similar issues of fact and law, they have been consolidated for decision.  The appeals must be dismissed.

Petitioners all own at least one home within respondent’s district, but admit that such homes are “not [their] primary residence[s] for Federal and Statewide election purposes.”  In October and November 2010, petitioners requested absentee ballots for the district’s “next and succeeding” elections.  By letters dated November 15, 2010, the district clerk informed petitioners that, at its November 9, 2010 meeting, respondent rejected their applications for absentee ballots.  These appeals ensued.

Petitioners contend that respondent’s denial of their requests for absentee ballots violates Education Law §2012, which they contend “speaks only in terms of resident, not primary resident.”  Petitioners also maintain that, should Education Law §2012 be “deemed or applied to exclude” individuals whose “primary residence is outside the school district in which they wish to vote,” such provision violates the Fourteenth Amendment to the United States Constitution.  Petitioners ask that I direct respondent to permit “[p]etitioners who are taxpaying-homeowner residents ... and others who are similarly situated” to vote at all school elections “irrespective of the location of their primary residence.”

Respondent argues that the appeals must be dismissed for failure to state a claim upon which relief may be granted.  Respondent maintains that its decisions to deny petitioners’ requests for absentee ballots were neither arbitrary nor capricious and argues that I lack jurisdiction over petitioners’ constitutional claims.

I must first address several procedural matters.  Petitioners have all submitted the same October 24, 2010 newspaper article to support their positions.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such article for the veracity of its content.

To the extent that petitioners seek relief on behalf of “others who are similarly situated,” I note that an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Other than their assertion that “there are some two to four hundred similarly situated taxpaying-homeowner residents” in respondent’s district and “significantly greater” numbers of such individuals Statewide, petitioners’ pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, their request for class status is denied.

Turning to the merits, Education Law §2012 governs the qualifications of voters at school meetings and elections.  To qualify to vote in a school district election, a person must be a citizen of the United States, at least 18 years old, a resident of the district for a period of at least 30 days preceding the election, and not otherwise disqualified as incompetent or ineligible pursuant to Election Law §5-106 (Education Law §2012).

For purposes of Education Law §2012, a person may have only one legal residence or domicile, and that is the place where such a person intends to have his or her permanent residence (Appeal of Klein, 47 Ed Dept Rep 409, Decision No. 15,738; Appeal of Taylor, 39 id. 712, Decision No. 14,357; Matter of the Appeal of Nelson Beck, 74 St Dept Rep 78; 1934 Atty Gen [Inf Ops], 51 id. 123).  Dual homeownership does not confer upon the property owner the right to designate residency for the purpose of participating in school district elections (Appeal of Klein, 47 Ed Dept Rep 409, Decision No. 15,738; Appeal of Taylor, 39 id. 712, Decision No. 14,357; 1934 Atty Gen [Inf Ops], 51 St Dept Rep 123).  Rather, residency is dependent on the intent and conduct of the owner (Appeal of Klein, 47 Ed Dept Rep 409, Decision No. 15,738; Appeal of Taylor, 39 id. 712, Decision No. 14,357; 1934 Atty Gen [Inf Ops], 51 St Dept Rep 123).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioners have failed to establish that they intend their in-district homes to be their permanent residences and that they are therefore qualified to vote in district elections.  For example, in their October 18, 2010 letter requesting absentee ballots, the Ryan petitioners state that they are not registered to vote in Westport, but rather are “registered to vote in another State since that is [our] ‘primary residence’ for National and Statewide election purposes.”  Likewise, the Toomey petitioners admit that they are “registered to vote in another State (or elsewhere in New York) since that is [our] ‘primary residence’ for National and Statewide election purposes.”  In his October 27, 2010 request, petitioner Starbuck states that he owns two properties in Westport, but admits that “New York is not my residence.”  In his petition, Starbuck explains that he operates a business in Vermont and “resides in Westport and Vermont from time to time and for varying periods of time.”  As a result, based on the record before me, I find that respondent’s decision to deny petitioners’ requests for absentee ballots was reasonable.

Finally, to the extent that petitioners claim that Education Law §2012 and its application under the circumstances presented in this appeal violate the Fourteenth Amendment to the United States Constitution, such claims must be dismissed.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

THE APPEALS ARE DISMISSED.

END OF FILE.