1146500.2

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------------- x LISA STEGLICH, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian of HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Petitioners,

-against-

THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of the City School District of the City of New York, Respondents,

-and-

SUCCESS ACADEMY CHARTER SCHOOL a/k/a UPPER WEST SUCCESS ACADEMY, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, et al., Intervenor-Respondents.

: : : : : : : : : : : : : : :

-------------------------------------------------------------------------------- x

Index No. 104300/11 IAS Part 12 (Feinman, J.)

PETITIONERS’ MEMORANDUM OF

LAW IN OPPOSITION TO INTERVENORS’

MOTION TO DISMISS

Jon Schuyler Brooks Marc Andrew Landis Meagan A. Zapotocky PHILLIPS NIZER LLP 666 Fifth Avenue New York, NY 10103 (212) 977-9700 Attorney for Petitioners

i 1146500.2

TABLE OF CONTENTS

Page

Preliminary Statement..................................................................................................................... 1

Statement of Facts........................................................................................................................... 2

ARGUMENT.................................................................................................................................. 2

I. Petitioners May Challenge the Pep Vote in This Court ...................................................... 2

A. The Commissioner Does Not Have Exclusive or Primary Jurisdiction Over this Matter .. 3

1. Education Law §§ 310 and 2853 Do Not Confer The Commissioner With Exclusive Original Jurisdiction Over this Matter................................................... 3

2. The Commissioner Does Not Have Primary Jurisdiction Over this Matter ........... 4

B. The 2010 Amendment Did Not Mandate An Appeal to the Commissioner....................... 6

C. The Commissioner Lacks Jurisdiction Over Non-Education Law Questions .................. 12

D. The Commissioner Lacks Authority to Issue a Stay......................................................... 13

CONCLUSION............................................................................................................................. 14

ii 1146500.2

TABLE OF AUTHORITIES

CASES Botwin v. Bd. of Educ., 114 Misc.2d 291 (Sup. Ct. Suffolk Co. 1982) ...........................................5 Buffalo Audio v. Union Free School Dist., 29 Misc.2d 871, 208 N.Y.S.2d 760 (Sup. Ct. Erie Co. 1960), aff'd, 15 A.D.2d 991, 226 N.Y.S.2d 1024 (4th Dep't 1962)...................................6 County Dollar Corp. v. Douglas, 161 A.D.2d 370, 556 N.Y.S.2d 533 (1st Dep't 1990) ................3 Custom Topsoil, Inc. v. City of Buffalo, 81 A.D.3d 1363, 916 N.Y.S.2d 446 (4th Dept 2011) ..............................................................................................................................10 Delaware & Hudson Railway Co. v. McDonald, 126 A.D.2d 29, 512 N.Y.S.2d 726 (3d Dep't), appeal dismissed, 70 N.Y.2d 693, 518 N.Y.S.2d 1029 (1987) ...................................12 Donato v. Bd. of Educ., 286 A.D.2d 388, 729 N.Y.S.2d 187 (2d Dep't 2001) ................................4 Hessney v. Bd. of Educ., 228 A.D.2d 954, 644 N.Y.S.2d 826 (3d Dep't)........................................5 James v. Bd. of Educ., 42 N.Y.2d 357, 397 N.Y.S.2d 934 (1977) ..............................................8, 9 Langston v. Iroquois Cent. Sch. Dist., 291 A.D.2d 845, 736 N.Y.S.2d 815 (4th Dep't 2002) ...............................................................................................................................5 Lezette v. Bd. of Educ., 35 N.Y.2d 272, 360 N.Y.S.2d 869 (1974) .................................................5 Markow-Brown v. Board of Educ. of Port Jefferson Pub. Schs., 301 A.D.2d 653, 754 N.Y.S.2d 326 (2d Dep't 2003) ..................................................................................................5 Mulgrew v. Bd. of Educ., 28 Misc. 3d 204, 902 N.Y.S.2d 882 (Sup. Ct. N.Y. Co.), aff'd, 75 A.D.3d 412, 906 N.Y.S.2d 9 (1st Dep't 2010) ..............................................................4, 6, 8, 11 O'Connor v. Emerson, 196 A.D. 807, 188 N.Y.S. 236 (4th Dep't), aff'd, 232 N.Y. 561 (1921) ...............................................................................................................5 People v. Schonfeld, 74 N.Y.2d 324 (1989) ....................................................................................9 Podolsky v. Daniels, 21 A.D.3d 559, 799 N.Y.S.2d 917 (2d Dep't 2005).......................................9 Purr Fect World, Inc. v. City of Cortland, 57 A.D.3d 1254, 869 N.Y.S.2d 698 (3d Dep't 2008) ................................................................................................................................9 Schiavone/Shea/Frontier-Kemper v. New York City Dep't of Environmental Protection, 274 A.D.2d 586, 712 N.Y.S.2d 393 (2d Dep't 2000).......................................................................9

iii 1146500.2

Schulz v. Galgano, 224 A.D.2d 535, 637 N.Y.S.2d 797 (2d Dep't), appeal dismissed, 88 N.Y.2d 1015 (1996) ....................................................................................................................4 Triomphe Disc Corp. v. Chilean Line, 93 A.D.2d 228, 461 N.Y.S.2d 325 (1st Dep't 1983) ........11 United States v. Western Pac. R. R. Co., 352 U.S. 59 (1956)..........................................................4

STATUTES Education Law § 310 ...........................................................................................................1, 2, 3, 4 Education Law § 2037 .................................................................................................................3, 4 Education Law § 2590-h..................................................................................................................4 Education Law § 2853 .........................................................................................................1, 2, 3, 4

OTHER New York State Legislative Annual 2010, Governor’s Program Memorandum #269................7, 8 Assembly Debate Transcript, 2010 Chap. 101 ......................................................................7, 8, 11 Senate Debate Transcript, 2010 Chap. 101..................................................................................7, 8 Assembly Bill No. 11310.......................................................................................................7, 8, 11 Assembly Memorandum in Support of Legislation for A. 11310 ...................................................7

1146500.2

1

Petitioners, by their attorney Phillips Nizer LLP, submit this memorandum of law in

opposition to the motion filed by intervenors Success Academy Charter School (“SACS”),

individuals Mathew Morey, Martin Aares, Gabriel Baez, Lisbeth Delossantos, Elana Kilkenny,

Elissa Klein, Rebecca Kuhar, Latisha Singletary, Michael Suchanek, and David Turnoff (the

“Parents”), and infants Thomas Morey, Claire Morey, Sabine Ballou-Aares, Christopher Baez,

Miyah Muzo, Liam Kilkenny, Ava Klein, Robert Maxwell Kuhar, Raniyah Garrett-Wells, Sally

Suchanek, Amelia Suchanek, and Hunter Kim-Turnoff, by their respective parents and natural

guardians (the “Infants”) (collectively, the “Intervenors”) to dismiss the Verified Petition (the

“Motion to Dismiss”).

PRELIMINARY STATEMENT

Petitioners challenge the PEP vote approving the co-location of SACS on the Brandeis

Educational Campus because the Chancellor, DOE and/or PEP failed to comply with statutory

requirements established by the Education Law.

Parroting Respondents, the Intervenors argue Petitioners were required to bring their

challenge to the co-location of SACS in the Brandeis Campus to the State Commissioner of

Education (the “Commissioner”), thus Petitioners are in the “wrong forum” and this Court lacks

jurisdiction to hear Petitioners’ claims. Intervenors’ arguments, however, are based on the false

premise that “may appeal” means “shall appeal” as used in Education Law §§ 310 and 2853.

The legislative history and applicable case law support a construction that “may” is permissive,

not mandatory. As a result, the Legislature did not grant the Commissioner exclusive original or

primary jurisdiction over co-location matters, nor were Petitioners required to exhaust their

administrative remedies prior to bringing this action.1

1 Petitioners do not address the Intervenors’ arguments that the EIS and BUP issued by Respondents in connection with the co-location proposal comply with the statutory requirements,

1146500.2

2

Petitioners’ action is properly before the Court.

STATEMENT OF FACTS

On February 2, 2011, the Panel for Education Policy (“PEP”) approved the New York

City Department of Education’s (“DOE”) proposal to co-locate SACS in the Brandeis Education

Campus. The PEP vote was based upon a flawed process and failure to comply with the

Education Law and Chancellor’s Regulations.

Petitioners filed this Article 78 proceeding challenging the approval of the co-location on

April 8, 2011 against three Respondents: the Board of Education of the City School District of

the City of New York (now referred to as PEP), the Chancellor of the City School District of the

City of New York (the “Chancellor”), and the DOE.

On April 19, 2011, the Intervenors filed the Motion to Intervene to participate as

respondents. On April 25, 2011, the Intervenors, although not yet a party to the proceeding, filed

their Motion to Dismiss.

On May 11, 2011, the Court granted the Intervenors’ motion for leave to intervene in this

proceeding. Now that Intervenors are parties to this action, Petitioners oppose their motion to

dismiss.

ARGUMENT

POINT I

PETITIONERS MAY CHALLENGE THE PEP VOTE IN THIS COURT

Intervenors argue this Court lacks jurisdiction over the issues raised in the proceeding

because Petitioners failed to exhaust their administrative remedies. Intervenors are wrong.

Intervenors argue that the language in Education Law §§ 310 and 2853 that a party “may appeal”

as Respondents issued a new EIS and BUP on June 6, 2011, thus rendering the initial EIS and BUP moot.

1146500.2

3

to the Commissioner of Education is mandatory and directive, rather than permissive and

authorizing. Intervenors’ interpretation of the statutory language is refuted by the legislative

history and controlling case law.

A. The Commissioner Does Not Have Exclusive or Primary Jurisdiction Over this Matter

1. Education Law §§ 310 and 2853 Do Not Confer The Commissioner With

Exclusive Original Jurisdiction Over this Matter Section § 2853(3)(a-5) provides that “the determination to …co-locate a charter school

within a public school building … that has been approved by the board of education …may be

appealed to the Commissioner” pursuant to § 310 of the Education Law. Section 310 provides

“[a]ny party considering himself aggrieved by may appeal by petition to the commissioner of

education.” Intervenors argue these provisions confer exclusive original jurisdiction upon the

Commissioner over this matter. The very language of the statutes belie Intervenors’ argument.

“Unless the Legislature has expressed an explicit intention to vest exclusive original

jurisdiction in the administrative agency, the court will be held to have concurrent jurisdiction.”

County Dollar Corp. v. Douglas, 161 A.D.2d 370, 371, 556 N.Y.S.2d 533, 533 (1st Dep’t 1990).

The statutes’ permissive language here cannot be read as an “explicit intention” to vest exclusive

original jurisdiction with the Commissioner. For example, in Education Law § 2037, the

Legislature’s intent to confer exclusive original jurisdiction of disputes concerning the validity of

school district meetings and elections to the Commissioner is made clear by the following

statutory language:

All disputes concerning the validity of any district meeting or election or of any of the acts of the officers of such meeting or election shall be referred to the commissioner of education for determination and his decisions in the matter shall be final and not subject to review.

1146500.2

4

Education Law § 2037 (emphasis added). See Schulz v. Galgano, 224 A.D.2d 535, 536, 637

N.Y.S.2d 797, 798 (2d Dep’t), appeal dismissed, 88 N.Y.2d 1015 (1996) (“The language of

Education Law § 2037 is mandatory in nature and precludes recourse to the court, until review

by the Commissioner is complete”). Education Law §§ 310 and 2853 do not include the

mandatory language of §2037, nor do sections 310 and 2853 specifically preclude recourse to the

court. The Legislature’s use of “may” in Education Law §§ 310 and 2853, compared with its use

of “shall” in § 2037, makes clear that the statutes at issue in this proceeding do not include an

“explicit intention” to confer exclusive original jurisdiction on the Commissioner concerning co-

location matters.

2. The Commissioner Does Not Have Primary Jurisdiction Over this Matter

Intervenors further, and in the alternative, argue that the Commissioner has primary

jurisdiction because “[t]he Commissioner of Education has specialized expertise in matters

concerning education law.” Intervenors’ Mem. at 21. Intervenors’ sweeping conclusion

misstates the law. The doctrine of primary jurisdiction “applies where a claim is originally

cognizable in the courts, and comes into play whenever enforcement of the claim requires the

resolution of issues which, under a regulatory scheme, have been placed within the special

competence of an administrative body.” Donato v. Bd. of Educ., 286 A.D.2d 388, 388, 729

N.Y.S.2d 187, 187 (2d Dep’t 2001) (citing United States v. Western Pac. R. R. Co., 352 U.S. 59,

64 (1956) (quotations omitted)). Here, there is no reason to assume that the Commissioner has

particular expertise in co-location matters. To the contrary, the issue of whether the Respondents

complied with their statutory obligations under Education Law § 2590-h (which governs both

school closings and co-locations) was decided by both the Supreme Court and the First

Department just last year in Mulgrew v. Bd. of Educ. See 28 Misc. 3d 204, 902 N.Y.S.2d 882

(N.Y. Co.), aff’d, 75 A.D.3d 412, 906 N.Y.S.2d 9 (1st Dep’t 2010).

1146500.2

5

As made clear by the cases cited by Intervenors, the Commissioner of Education has been

found to have specialized expertise in factual issues generally concerning, for example, whether

a student or teacher was properly suspended or whether teaching positions and/or duties are

similar. Intervenors’ Mem. at 22 (citing Markow-Brown v. Board of Educ. of Port Jefferson

Pub. Schs., 301 A.D.2d 653, 754 N.Y.S.2d 326 (2d Dep’t 2003); Langston v. Iroquois Cent. Sch.

Dist., 291 A.D.2d 845, 736 N.Y.S.2d 815 (4th Dep’t 2002); and Hessney v. Bd. of Educ., 228

A.D.2d 954, 644 N.Y.S.2d 826 (3d Dep’t)), lv. denied, 89 N.Y.2d 801, 653 N.Y.S.2d 278

(1996).2 Unlike the cases cited by Intervenors, this action concerns the issue of whether the

Respondents complied with their statutory notice and disclosure obligations relating to the co-

location proposal, legal issues which courts have routinely held are within their jurisdiction.

It is well settled that the court has jurisdiction over matters concerning questions of law,

including matters involving the issue of whether school officials have acted in violation of a

statute. See Lezette v. Bd. of Educ., 35 N.Y.2d 272, 278, 360 N.Y.S.2d 869, 873 (1974) (direct

resort to the courts is proper when the “issue is whether school officials have acted in violation

of statute”); O’Connor v. Emerson, 196 A.D. 807, 810, 188 N.Y.S. 236, 236 (4th Dep’t), aff’d,

232 N.Y. 561 (1921) (where the right of a party depends upon the interpretation of a statute and

it is claimed that a school board or official has violated the statute, the courts “will not be ousted

of jurisdiction to determine the matter, notwithstanding another method of settling the

controversy has been provided.”); see also Botwin v. Bd. of Educ., 114 Misc.2d 291, 295 (Sup.

Ct. Suffolk Co. 1982) (court has jurisdiction to decide issue where “lawsuit depends upon

interpretation of several statues of the Education Law” and it is claimed that respondent board of

2 Markow-Brown concerned the “factual issue of whether the petitioner’s former full-time position and the two new half-time positions are equal within the meaning of Education Law §3013 (3)(a)).” 301 A.D.2d at 654. Langston concerned the factual issue of whether a student’s suspension from high school was proper. 291 A.D.2d at 845. Hessney concerned the “factual issue of whether the duties of the subject teaching positions are similar.” 228 A.D.2d at 955.

1146500.2

6

education ‘has proceeded to act in violation of an express statute’”); Buffalo Audio v. Union Free

School Dist., 29 Misc.2d 871, 874, 208 N.Y.S.2d 760, 764 (Sup. Ct. Erie Co. 1960), aff’d, 15

A.D.2d 991, 226 N.Y.S.2d 1024 (4th Dep’t 1962) (“We find in the case at bar that since the basic

question presented is whether or not the Board of Education complied with the statutory

provisions relating to competitive bidding, petitioner is properly before this court”). This

proceeding involves only such questions, and raises precisely that issue.

B. The 2010 Amendment Did Not Mandate An Appeal to the Commissioner3

Petitioners challenge the PEP vote approving the co-location because the Chancellor,

DOE and/or PEP failed to comply with statutory requirements established by the Education Law.

Historically, and without objection from the Chancellor, DOE or PEP, this Court has heard and

decided such challenges to PEP votes. See Mulgrew v. Bd. of Educ., 28 Misc. 3d 204, 902

N.Y.S.2d 882 (Sup. Ct. N.Y. Co.), aff’d, 75 A.D.3d 412, 906 N.Y.S.2d 9 (1st Dep’t 2010).

Intervenors argue (as did Respondents) an amendment to the Education Law enacted

subsequent to Mulgrew (the “2010 Amendment”) stripped this Court of its jurisdiction over such

challenges, vested exclusive original jurisdiction in the Commissioner, and required Petitioners

to exhaust their administrative remedies prior to commencing this Article 78 proceeding.

Intervenors’ Mem. at 13, 17-19. This argument derives not from a specific legislative mandate

set forth in the 2010 Amendment, but from a self-serving interpretation of its language that is

wholly unsupported by the legislative history of the 2010 Amendment.

The 2010 Amendment originated as Assembly Bill No. 11310 (“A.11310”). It was

“introduced, passed and signed in one day.” New York State Legislative Annual 2010,

Governor’s Program Memorandum #269 n.1. It was driven primarily by New York State’s effort

3 The arguments set forth in sub-points B through D are substantially similar to those asserted in Petitioners’ Memorandum of Law in Reply to Respondents’ Verified Answer, dated May 10, 2011. For the Court’s convenience, those arguments are repeated herein.

1146500.2

7

to “win” dollars from the federal “Race to the Top” program.” See generally, Assembly Debate

Transcripts, 2010 Chap. 101 (“Assembly Tr.”); Senate Debate Transcripts, 2010 Chap. 101

(“Senate Tr.”).4

Admittedly, the 2010 Amendment includes the following language:

Notwithstanding any provision to the contrary, in a city school district in a city having a population of one million or more inhabitants, the determination to locate or co-locate a charter school within a public school building and the implementation of and compliance with the building usage plan … may be appealed to the commissioner pursuant to section three hundred ten of this chapter.

A.11310 § 15 at p.9:33-43 (emphasis added).

Intervenors argue that “may” does not mean “may”; that “may” really means “must”; and

that this Court, in effect, should rewrite the language of the statute so that may be appealed only

to the commissioner. Intervenors’ Mem. at 14-17. No support exists in the legislative history for

such a construction. To the contrary, the legislative history supports a construction that “may” is

permissive, not mandatory.

For example, the Assembly Memorandum in Support of Legislation for A.11310 (the

“Assembly Memo”) includes the following statement: “An expedited appeal may be made

regarding the determination to locate or co-locate a charter school in a public school building and

the implementation of and compliance with a building utilization plan.” Assembly Memo at 2

(emphasis added); accord, Governor’s Program Memorandum #269.5

4 For the convenience of the Court, a true and correct copy of each of the following documents is submitted herewith: A.11310; the Assembly Memorandum in Support of Legislation; the 2010 Legislative Annual relating to Chapter 101 of 2010; the Assembly Debate Transcripts; and the Senate Debate Transcripts. 5 The exact same language appears also in the Senate Memo.

1146500.2

8

In the legislative debate on the 2010 Amendment, neither a single Member of the

Assembly nor a single State Senator suggested – let alone stated – that the language clarifying

that a co-location determination by PEP may be appealed to the commissioner divested the

courts of jurisdiction to hear challenges to such determinations through an Article 78 proceeding.

See generally, Assembly Transcripts and Senate Transcripts. Such silence is especially

instructive given that the Legislature was well aware of the Mulgrew decision, and recognized

the critical role the courts play in ensuring that these Respondents comply with the letter and

purpose of the Education Law.

Past behavior is a pretty good indicator of future behavior[,] and the attempt, the very noble attempt, to put in place a process that would force a public process [with] more transparency in the co-location is reminiscent, to me, of the same type of process that was put in place in our school governance around the issue of school closures. Communities indicated that there were 19 schools that were being closed without any real process. The Department of Education said, “Oh, no, no, no. We followed every step, we had these hearings.” [PEP, the DOE, and the Chancellor] were taken to court, and the [Mulgrew] court rejected as a sham – as an outright sham – the process that was engaged in by the Department of Education and voided those closures.

I believe we are likely to see the same [with] forced co-

locations.

Assembly Tr. at 106 (Remarks of Member of Assembly Glick).

Apparently aware they lack any support in the 2010 Amendment’s legislative history,

Intervenors ignore it completely and instead offer their interpretation of the Education Law and

rely on inapplicable cases, arguing that principles of statutory construction allow this Court to re-

interpret “may” to mean “must.” Intervenors’ Mem. 14-17.

The Intervenors rely on James v. Bd. of Educ., 42 N.Y.2d 357, 397 N.Y.S.2d 934 (1977)

to support their argument that the “may appeal” language has been interpreted to mean “shall.”

In James, however, the court did not decide the issue of whether an appeal to the Commissioner

1146500.2

9

was required based upon the permissive language, as the plaintiffs in that case had, in fact,

appealed to the Commissioner. Id. at 362. Moreover, the court specifically noted “[h]owever, it

is not contended, nor could it be, that, in the absence of some explicit statutory or constitutional

violation, any of these decisions, reflective of educational policy judgments, would be

cognizable in the courts. To be sure, where a statutory or constitutional provision is at root of

a dispute, the courts may offer the definitive resolution of these issues of law.” Id. at 365

(emphasis added). In other words, where, as here, the issue is whether an educational authority

has violated some explicit statutory requirement, challenges to such decision are cognizable in

court.

Purr Fect World, Inc. v. City of Cortland, 57 A.D.3d 1254, 869 N.Y.S.2d 698 (3d Dep’t

2008) is also readily distinguishable. In Purr Fect World, the zoning ordinance at issue provided

that the zoning ordinances shall be administered by the zoning officer and that a party aggrieved

by the zoning officer may appeal to the Zoning Board of Appeals. Id. at 1255. Statutes

including both “shall” and “may” will be interpreted by the courts as mandatory. See People v.

Schonfeld, 74 N.Y.2d 324, 328 (1989) (interpreting statute including both “shall” and “may” as

mandatory where “[s]uch a juxtaposition of seemingly mandatory and permissive terms within

the same subdivision governing enforcement strongly suggests that the Legislature did not intend

to give the People the open ended discretion to proceed against the sureties that they now seek.”).

In this action, “shall” and “may” are not juxtaposed in Education Law §§ 301 or 2853, thus the

logical legislative intent is that appeals to the Commissioner are permissive.6

6 Podolsky v. Daniels, 21 A.D.3d 559, 799 N.Y.S.2d 917 (2d Dep’t 2005) and Schiavone/Shea/Frontier-Kemper v. New York City Dep’t of Environmental Protection, 274 A.D.2d 586, 712 N.Y.S.2d 393 (2d Dep’t 2000), also relied upon by Intervenors to support their argument that may means must, offer no discussion on the statutes at issue in those cases.

1146500.2

10

Intervenors conveniently ignore the cases more on point that hold “may” is permissive

and means “may.” For example, exactly three months ago, the Fourth Department addressed

whether the Supreme Court lacked jurisdiction over an Article 78 proceeding where, as here, the

petitioner filed that proceeding without first pursuing an administrative appeal. The municipal

respondents in that case argued that the “may appeal administratively” language of the governing

statute was mandatory, and that petitioner thus failed to exhaust its administrative remedies.

The Fourth Department rejected both contentions.

Contrary to the further contention of respondent, the court properly denied its motion to dismiss the petition on the ground that petitioners failed to exhaust their administrative remedies. Buffalo City Code § 511-125(B), which pertains to the Zoning Board of Appeals, provides: “In case it is alleged by an appellant that there is error of misinterpretation in any order, requirement, decision, grant or refusal made by … [an] administrative official having authority to issue licenses or permits in the carrying out or enforcement of the provisions of … chapter [511], an appeal may be filed in the manner hereinbefore specified and a decision shall be made by the [Zoning] Board of Appeals” (emphasis added). Because the language of that provision is permissive rather than mandatory, petitioners were not required to file such an appeal [with the ZBA].

Custom Topsoil, Inc. v. City of Buffalo, 81 A.D.3d 1363, 1365, 916 N.Y.S.2d 446, 448 (4th Dept

2011)(ellipses, brackets, and standard italics in original; bold italics added).

The First Department rejected similar contentions, along with the “primary jurisdiction”

argument, almost two decades ago.

Even though administrative action is often desirable, resort to such action is not a prerequisite to litigation in court. The statute is clearly couched in permissive terms, providing in pertinent part that any person “may file” with the commission a complaint setting forth alleged violations of the Shipping Act (US Code, tit 46, § 821, subd [a]). Exhaustion of administrative remedies is thus not a prerequisite to this action. This is especially true where, as here, the questions involved are generally legal ones …. Where the technical expertise and special discretion of the commission are not otherwise required, a court is competent to

1146500.2

11

make a determination of a nontechnical nature based on an uncomplicated set of facts. This renders inapplicable the doctrine of primary administrative jurisdiction.

Triomphe Disc Corp. v. Chilean Line, 93 A.D.2d 228, 231, 461 N.Y.S.2d 325, 327 (1st Dep’t

1983) (emphasis added).

In advancing their “may means must” construction, Intervenors also ignore the first

clause of the “may appeal” language: “Notwithstanding any provision to the contrary ….”

A.11310 § 15 at p.9:33. In other words, prior to the 2010 Amendment, there apparently was

either a concern or belief that PEP determinations regarding co-locations could not be appealed

to the commissioner pursuant to Education Law § 310. The 2010 Amendment provided that

alternative.

Rather than view an appeal to the Commissioner as an alternative, however, Intervenors

argue the 2010 Amendment made it the exclusive means to challenge a PEP determination

regarding co-locations of charter schools. Intervenors’ Mem. at 17. Intervenors are wrong.

The “co-location process” imposed upon the Respondents by the 2010 Amendment was

intended to enhance parental and community involvement in the co-location determination.

“This legislation creates, we think, enough of a plan, a building plan and a consultation process

with parents, that it will make this kind of transition smoother and easier and allow for true

parental involvement ….” Assembly Tr. at 73 (Remarks of Member of Assembly Nolan). That

process must include the ability to challenge its outcome, as demonstrated by Mulgrew. The

process, therefore, shows the remedial nature of the applicable portions of the 2010 Amendment.

[A] remedial statute [] is to be liberally construed in favor of affording judicial review (see, Matter of Great E. Mall v. Condon, 36 N.Y.2d 544, 548; Matter of Lieberman v. Johnson, 60 A.D.2d 933, 934). Therefore, we should not read into the Purcell Act by implication any legislative intent to remove the traditional jurisdiction of Supreme Court to review real property tax assessments under Real Property Tax Law article 7.

1146500.2

12

Delaware & Hudson Railway Co. v. McDonald, 126 A.D.2d 29, 34, 512 N.Y.S.2d 726, 729 (3d

Dep’t), appeal dismissed, 70 N.Y.2d 693, 518 N.Y.S.2d 1029 (1987)(emphases added)(reversing

dismissal of petition for lack of subject matter jurisdiction). As in Delaware & Hudson, this

Court should not read into the 2010 Amendment “by implication [a] legislative intent to remove

the traditional jurisdiction of [the] Supreme Court.”

Finally, the construction urged by the Intervenors implicates serious issues of due process

and equal protection. The “may appeal to the commissioner” language applies only to those co-

location determinations made by PEP and affecting the City School District. In other words, co-

location determinations made by any other school board in the State of New York may be

challenged in Supreme Court by an Article 78 proceeding. This Court cannot construe the 2010

Amendment as preserving judicial review for some New Yorkers, but denying it to those who

live with the City of New York.

C. The Commissioner Lacks Jurisdiction Over Non-Education Law Questions

Moreover, one of the questions of law raised by the Verified Petition is whether

Respondents complied with the State and City Environmental Quality Review Act (respectively,

“SEQRA” and “CEQRA”). The Commissioner admits he lacks jurisdiction to hear and decide

challenges that go beyond issues of compliance with the Education Law.

Are there some grievances the Commissioner will not decide? Yes, the Commissioner will not decide certain disputes. For example, the Commissioner has no authority to decide alleged violations of the Open Meetings Law or Freedom of Information Law. Thus, the Commissioner will not decide claims that a school district failed to hold an open meeting or wrongfully refused a request for documents. Such claims must instead be brought before a court. Moreover, the Commissioner has no authority to award money damages.

1146500.2

13

Frequently Asked Questions Concerning Appeals to the Commissioner of Education (“FAQ”),

Question No. 14 (emphasis added), available at http://www.counsel.nysed.gov/appeals/faqs.htm.

Because this Article 78 proceeding raises issues outside the purview of the

Commissioner, i.e., unrelated to the Education Law, Petitioners would be prejudiced if they were

required to sever certain claims over which Commissioner lacked authority to hear.

D. The Commissioner Lacks Authority to Issue a Stay

The Commissioner admits he lacks authority to issue a stay in appeals involving PEP

determinations to co-locate a charter school in a public school building.

Can I request temporary relief while my appeal is pending? Except for appeals involving New York City charter school location/co-location and building usage plans (see Question 3), a petitioner may request a stay order in the petition. Please refer to Part 276 of the Commissioner’s regulations. The Commissioner, in his discretion, determines whether or not a stay order should be issued.

FAQ, Q. No. 17 (emphasis added), available at http://www.counsel.nysed.gov/appeals/faqs.htm.

Petitioners have sought preliminary injunctive relief to prevent Respondents from

performing any construction at the Brandeis Campus to accommodate the co-location of SACS.

In connection with that application, the Court granted Petitioners’ application for a temporary

restraining order to prevent Respondents from moving forward with construction in the Brandeis

Campus specifically related to and for the benefit of SACS. Given that the Commissioner

concedes he has no authority to grant such a stay, had the Petitioners appealed to the

Commissioner, they would be before this Court in any event.

* * * *

1146500.2

14

Accordingly, for any or all of the foregoing reasons, Petitioners were not required to

challenge PEP’s determination to co-locate SACS in the Brandeis Campus through an appeal to

the Commissioner; were not required to exhaust their administrative remedies prior to

commencing this Article 78 proceeding; and properly invoked the jurisdiction of this Court.

CONCLUSION For the foregoing reasons, Petitioners respectfully request that the Court deny the

Intervenors’ Motion to Dismiss in its entirety.

Dated: New York, New York June 9, 2011

PHILLIPS NIZER LLP

By: /s/ Marc Landis Marc Andrew Landis Jon Schuyler Brooks

Meagan A. Zapotocky Attorneys for Petitioners 666 Fifth Avenue New York, New York 10103-0084 (212) 977-9700