Decision No. 13,537

(January 23, 1996)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for

respondents, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the voter registration and election procedures used by the Board of Education of the Valley Central School District and school officials ("respondents") in May and June 1995. The appeal must be dismissed.

Petitioner challenges respondents' voter registration system for school board elections held on May 17 and June 21, 1995. She contends that respondents improperly permitted high school students to register to vote in school rather than appearing personally before the district's board of registration on registration day in violation of Education Law '2014(2). Petitioner further contends that on May 17, 1995, respondents allowed an unknown number of illegally registered people to vote in the school district election.

Petitioner also contends that respondents' policy of allowing people whose names appear on the county voter registration list to vote is improper. Petitioner further alleges that respondents failed to prepare a yearly register of qualified voters pursuant to Education Law '2014. Petitioner seeks an order directing respondents to prepare a true register of qualified voters, to stop registering high school voters and to cease allowing voters on the county registration list to vote in the school district election. Petitioner's request for interim relief pending a determination on the merits was denied on June 20, 1995.

Respondents contend that petitioner has not proven that any individual who voted in the May 17 or June 21, 1995 elections was not qualified to vote. Respondents also contend that Election Law '5-612(2) allows any qualified voter under that provision to vote in the school district elections. Respondents claim that since petitioner does not challenge the results of those two elections and they have already been held, the issue is moot. Finally, respondents object to petitioner's reply.

Before addressing the merits, I will address the procedural issues raised by respondents. Respondents object to the scope of petitioner's reply and contend that the reply sets forth new issues and material which were not contained in the petition. My review of the record supports respondents' contention. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition. Therefore, I will not consider the material belatedly added in petitioner's reply.

Respondents also contend that since petitioner does not contest the results of the elections and those elections have already taken place, the issue is moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on facts which no longer exist or which subsequent events have laid to rest (Appeal of Diaz, 35 Ed Dept Rep 52; Appeal of a Student with a Disability, 34 id. 204; Appeal of Lewis, 33 id. 520). The record indicates that petitioner objects to the voter registration process for the elections held on May 17 and June 21, 1995, and those elections have already taken place. Therefore, the appeal is moot.

In light of the foregoing disposition on procedural grounds, I will not reach the merits of the appeal. I have already addressed petitioner's allegation that respondents have improperly allowed voters whose names were not recorded on the district's list of registered voters to vote illegally in the school district election. As set forth in a related appeal, Appeal of Greening, 35 Ed Dept Rep 122, it is not improper for respondents to permit district residents who registered to vote with the county board of election to vote in the school district election. Furthermore, I have reviewed petitioner's allegation that respondents are illegally registering high school voters. The record indicates that respondents have registered parents of newly enrolled children and distributed New York State voter registration forms to high school students who are 18 years of age or older as part of the social studies curriculum. Accordingly, respondents did not act improperly with regard to this matter.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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