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Decision No. 14,357

Appeal of THEODORE S. TAYLOR from action of the Board of Education of the Lake Pleasant Central School District regarding voter eligibility.

Decision No. 14,357

(May 8, 2000)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Registration of the Lake Pleasant Central School District that petitioner is not a district resident and its removal of his name from the district’s registration rolls. The appeal must be dismissed.

Petitioner owns a home in the Lake Pleasant Central School District ("the district") that, by his own admission, he occupies for only approximately 90 days per year. During the remainder of the year, petitioner apparently resides in New Jersey with his wife and children and is employed as the police chief in Haddon Heights, New Jersey. The Lake Pleasant Central School District is situated in the Adirondack Mountains, several hours by car from the New Jersey border.

During summer 1998, the district’s Board of Education ("respondent") voted to provide for the personal registration of voters at district elections. In accordance with Education Law "2014, respondent established a four-person Board of Registration to prepare the district’s registration books for the May 18, 1999 annual election using the Hamilton County Board of Elections' registration list. The Board of Registration found a number of inaccuracies in the county’s list, and so notified the County Board of Elections. The Board of Registration also filed challenge forms with the County Board of Elections against seven registered voters, including petitioner, on the grounds that they were not residents of the county or district, but owned only seasonal homes in the district.

Before the polls opened on election day, the district’s Assistant Superintendent, Ernest D. Virgil, filed a voter challenge form with the district alleging that petitioner was not a qualified voter. Virgil alleged that petitioner’s children attend school in New Jersey and that he had not seen anyone in petitioner’s home during the school year.

Petitioner was, nevertheless, permitted to vote at the May 18, 1999 election after signing a declaration, in accordance with Education Law "2019, attesting that he was a district resident. After the election, in anticipation of the district’s June 2, 1999 building project referendum, the Board of Registration investigated the twenty-three voting qualification challenges received by the district during the May 18, 1999 election, including the challenge regarding petitioner.

By letter dated May 20, 1999, Bobbi Lynne Hoover, chairperson of respondent’s Board of Registration, notified petitioner that the district was investigating his voter qualifications based on the challenge filed at the May 18, 1999 district election. The letter informed petitioner that the challenge was based on the allegation that he was not a district resident, and requested that he supply proof of residency to the Board of Registration no later than May 28, 1999. The letter was mailed to petitioner at both his New Jersey and district address on May 20, 1999.

Although petitioner apparently did not receive the letter until May 28, 1999, he transmitted documentation supporting his claim of residency by facsimile to the Board of Registration that day in time for the board to consider it at its meeting that evening. Petitioner supplied a copy of his New York State driver’s license, Hamilton County voter registration card, 1998-99 district property tax bill, 1999 town property tax bill, and an electric and telephone bill for his district home.

After reviewing petitioner’s documentation and considering evidence submitted by Assistant Superintendent Virgil to the effect that petitioner’s house remained unoccupied for substantial portions of the year, the Board of Registration determined that petitioner was not a district resident. Ms. Hoover attempted unsuccessfully to contact petitioner over the holiday weekend to advise him of this determination. When petitioner appeared to vote at the June 2, 1999 building referendum, he was advised that his name had been removed from the district’s voter registration books and he was not permitted to vote. This appeal ensued.

Petitioner contends, among other things, that the Board of Registration overzealously investigated his residency and improperly removed his name from the voter registration rolls. He also claims that he was denied due process by the short timeframe he was afforded to provide proof of residency. For relief, petitioner requests, among other things, that he be restored to the district’s voter registration roll and that I "reprimand" respondent for its actions. Petitioner names only the Board of Education of the Lake Pleasant Central School District as a respondent.

Respondent raises a number of procedural defenses, contending that petitioner has failed to name the proper parties to this appeal, that I lack jurisdiction to entertain petitioner’s constitutional claims, and that the petition fails to state a cause of action against respondent. As to the merits, respondent contends the Board of Registration properly investigated petitioner’s residency and determined that petitioner is not a district resident.

Preliminarily, I note that respondent objects to petitioner’s reply on the ground that petitioner has added new facts and allegations that are not responsive to the affirmative defenses raised by respondent. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Brousseau, 39 Ed Dept Rep 132, Decision No. 14,193; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Accordingly, I will not consider those portions of petitioner’s reply that contain new information or materials which are not responsive to new material or affirmative defenses set forth in the answer.

A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Petitioner challenges the decision of the Board of Registration to remove his name from the voter registration rolls, as well as the manner in which the board investigated his residency. Petitioner seeks, among other things, reinstatement to the district’s voter registration rolls.

Pursuant to Education Law "2014, the Board of Registration is responsible for preparing the district’s register and removing from it the name of any person who is not qualified as a school district elector. The Board of Registration is a necessary party to this proceeding because it is the body whose actions petitioner challenges and that has authority to restore petitioner’s name to the register. Petitioner’s failure to join the Board of Registration warrants dismissal of this appeal (see, Matter of Davis v. Union Free School District No. 7, 39 Misc 2d 671). In addition, the petition must be dismissed because it is devoid of allegations of wrongdoing by respondent and therefore fails to state a claim against it.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. To qualify to vote in a school district election, a voter must be a citizen of the United States, at least 18 years old, and a resident of the district for a period of at least 30 days preceding the election (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 or home (Appeal of Kuleszo, 30 Ed Dept Rep 465, Decision No. 12,537; Op Atty Gen, 1934, 51 St Dept Rep 123, Matter of the Appeal of Nelson Beck, 74 St. Dept Rep 78). Dual home ownership does not confer upon the property owner the right to designate residency for the purpose of participating in school district elections. Rather, residency is dependent on the intent and conduct of the owner (Op. Atty. Gen., 1932, 45 St. Dept. 128).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioner has failed to establish that he is a resident of respondent’s district and therefore qualified to vote in district elections. Although petitioner’s documentation establishes that petitioner owns a home in respondent’s district, it does not establish that petitioner intends this home to be his permanent residence. To the contrary, the record supports the conclusion that petitioner maintains his permanent residence in the state of New Jersey.

Because petitioner has failed to controvert respondent’s allegations that he is employed as the chief of police in Haddon Heights, New Jersey, and lives in New Jersey with his wife and children these allegations are deemed admitted. The fact that petitioner’s home in respondent’s district is located several hours from the state of New Jersey where petitioner is employed militates against the conclusion that petitioner is a district resident. Likewise, petitioner’s failure to supply proof that he filed a New York State tax return also supports the conclusion that petitioner is not a district resident. I do not find persuasive petitioner’s claim that privacy concerns prevented him from submitting a copy of his tax returns. Petitioner could have redacted his tax returns, as he did with his telephone and electric bills. In short, petitioner has failed to demonstrate that he is a resident of respondent’s district. Accordingly, I find no basis to disturb the Board of Registration’s conclusion that petitioner is not a district resident and its removal of him from the registration rolls.

In light of this disposition, I need not address the parties’ remaining contentions.