Opinion
4449-18
01-16-2019
In the Matter of the Application of Robert LUJAN, Petitioner, For Relief Under Article 78 of the Civil Practice Law and Rules, v. Richard A. CARRANZA, Chancellor of the New York City Department of Education, and Maryellen Elia, Commissioner of the New York State Education Department, Respondents.
MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., (Philip M. Genty, Esq.), Attorneys for the Petitioner ZACHARY W. CARTER, Corporation Counsel for the City of New York, (Agnetha E. Jacob, of Counsel), Attorneys for Richard A. Carranza, Chancellor of the New York City Department of Education HON. LETITIA JAMES, Attorney General for the State of New York, (Ryan W. Hickey, of Counsel), Attorneys for MaryEllen Elia, Commissioner of the New York State Education Department
MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., (Philip M. Genty, Esq.), Attorneys for the Petitioner
ZACHARY W. CARTER, Corporation Counsel for the City of New York, (Agnetha E. Jacob, of Counsel), Attorneys for Richard A. Carranza, Chancellor of the New York City Department of Education
HON. LETITIA JAMES, Attorney General for the State of New York, (Ryan W. Hickey, of Counsel), Attorneys for MaryEllen Elia, Commissioner of the New York State Education Department
Patrick J. McGrath, J. Petitioner brings this special proceeding pursuant to CPLR 78 challenging the determination of the New York City Department of Education, which restricted petitioner's access to his son's school, as well as the determination of the Commissioner of the New York State Education Department, which dismissed petitioner's administrative appeal. Petitioner seeks to annul these determinations, and also seeks an order directing respondents to grant petitioner access to his son's school. Both respondents oppose the petition, and petitioner has submitted a Reply. The Court also heard oral argument on October 25, 2018.
Factual Background and Procedural History
In 1988, petitioner was convicted of Rape in the First Degree. Petitioner's victim was a fourteen year old girl, and the rape was committed with a deadly weapon. Based on this conviction, petitioner has been adjudicated a Level III sex offender. Petitioner was released from prison and discharged from parole supervision in 1998.
Petitioner is the father and sole caretaker for his son, "X." During the 2015-2016 school year, "X" attended Yorkville Community School, PS 151 in New York City. On November 20, 2015, the Principal of that school sent a letter to petitioner, informing him that the school was placing restrictions on his access to the school based on his Level III sex offender status and because his victim was under the age of 18. Those restrictions prevented him from coming within 1000 feet of school grounds. If petitioner needed to pick up his son on an emergency basis, he would have to contact the school to make arrangements.
In a letter dated April 12, 2016, petitioner demanded that the New York City Department of Education (hereinafter, NYCDOE) remove the restrictions. In a letter dated May 3, 2016, Counsel for NYCDOE responded that petitioner's risk level indicated the highest risk of recidivism. Further, that the DOE had a policy prohibiting Level III sex offenders who had committed crimes against minors from entering school grounds based on its in loco parentis responsibility to the children in its care. Petitioner was advised that he could contact school personnel regarding his son's progress, and could try to make arrangements with the principal if he wanted to attend a specific event with supervision. Petitioner notes that the May 3, 2016 letter does not reference a specific school but rather, he claims that letter addresses a city-wide policy.
On May 10, 2016, petitioner appealed the May 3, 2016 determination to the Commissioner of Education (hereinafter NYSED). Educ. L. 310. Petitioner claimed that the NYCDOE's policy, if one in fact existed, was in conflict with New York State law and policy. Specifically, petitioner noted that NYSED policy allows Level I, II and III offenders to attend a "child's school event." Additionally, that while Penal Law 65.10(4-a)(a) and Executive Law 259-c(14) require that petitioner's supervisory release was subject to the mandatory condition set forth in the Sexual Assault Reform Act (SARA) prohibiting him from residing within 1,000 feet of school grounds, Petitioner had been off parole for 18 years , and therefore, there was no basis for a blanket prohibition from his son's school.
Petitioner had been off parole for 18 years as of the time of the May 10, 2016 appeal. The Court acknowledges it has now been over twenty years.
On July 27, 2016, the NYCDOE submitted an Answer, noting that the school was within its authority to restrict petitioner's access, and its decision was rational because petitioner is a Level III sex offender. The school noted its common law duty to protect students in its care. Petitioner was restricted from picking up and dropping off his son, at a time when numerous students would be present and the school could not prevent him from "negatively engaging" with one of them. Moreover, after school events also had less supervision available. The school noted that nothing in the statutory law or common law required the DOE to expose its students to this type of risk.
On August 9, 2016, petitioner replied, arguing that his crime "took place long ago" and there was no rational connection between the facts underlying his conviction and the restrictions placed on him.
In 2017, "X" graduated from Yorkville Community School and started attending Wagner Middle School.
On February 26, 2018, petitioner received a letter from the Middle School principal. The letter indicated that the school was placing restrictions on petitioner's access to the school grounds, which were somewhat more lenient than the elementary school's restrictions. If petitioner wanted to meet with school staff during school hours or attend a school event, he had to give prior notice and be accompanied by a school safety agent. Pick ups and drops off were not permitted.
On March 26, 2018, the Commissioner rendered a decision, dismissing petitioner's administrative appeal as moot because "X" no longer attended Yorkville Community School. However, in dicta, the Commissioner urged respondent and its counsel to review Penal Law 65.10(4-a), "which no longer appl[ies] once the period of probation or conditional discharge [or parole] has ended."
In April 23, 2018, pursuant to 8 NYCRR 276.8 , petitioner applied to reopen the Commissioner's decision. Petitioner argued that the decision was rendered under the factual misapprehension that his appeal was limited to Yorkville Community School, when it in fact it challenged the city-wide policy the NYCDOE used to deny him entry to all schools his son may attend. Petitioner attached the letter he received from the Middle School principal, as well as a copy of his Reply brief, which indicated his appeal was addressed to the City's policy, and therefore, his appeal was not moot. The NYCDOE responded that petitioner was attempting to "extract a decision regarding a new appeal, while circumventing the proper procedures for challenging DOE's decision to restrict [petitioner's] access to Wagner Middle School," and that petitioner was required to commence a new appeal.
"Any party to an appeal may, within 30 days after the date of a decision thereon, apply by petition to the commissioner for a reopening of said decision. Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made."8 NYCRR 276.8.
On July 5, 2018, the Commissioner denied the application to reopen the prior decision, holding that the Middle School letter constituted a "new determination as to petitioner's ability to access school property" which only enforced the Commissioner's prior determination that the appeal was moot. With regard to petitioner's concern that a new appeal of the Middle School determination will likely be rendered moot by the time a decision is rendered, the Commissioner held that the prior appeal was still moot. Further, that if petitioner wanted an "expeditious decision", he could have sought a stay in the underlying appeal or commenced an appeal of the Middle School decision.
On or about July 10, 2018, petitioner commenced the instant special proceeding to challenge both the determination wherein NYCDOE restricted petitioner's access to his son's school and the NYSED's dismissal of his administrative appeal.
Standards of Review
When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious. See CPLR 7803(3) ; Matter of Jefferson v. New York City Bd. of Educ. , 146 A.D.3d 779, 780, 44 N.Y.S.3d 535 (2d Dept. 2017) ; Matter of Gottlieb v. City of New York , 129 A.D.3d 724, 725, 10 N.Y.S.3d 542 (2d Dept. 2015). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts. See Matter of Wooley v. New York State Dept. of Correctional Servs. , 15 N.Y.3d 275, 280, 907 N.Y.S.2d 741, 934 N.E.2d 310 (2010) ; Pell v. Bd. of Educ. , 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974).
In a proceeding for mandamus to compel, a petitioner must establish a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief. See CPLR 7803 [1 ]; Matter of Crain Communications v. Hughes , 74 N.Y.2d 626, 541 N.Y.S.2d 971, 539 N.E.2d 1099 (1989) ; Matter of Kupersmith v. Public Health Council , 63 N.Y.2d 904, 483 N.Y.S.2d 211, 472 N.E.2d 1039 (1984) ; Matter of City of Newburgh v. Public Employment Relations Bd. , 63 N.Y.2d 793, 481 N.Y.S.2d 327, 471 N.E.2d 140 (1984) ; see also, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7801:4, at 31.
Discussion
The Commissioner's determination that petitioner's appeal was moot was not arbitrary, capricious, or affected by an error of law. The appeal before the Commissioner was limited to the underlying facts and record at that time, and the only school that had placed restrictions on petitioner's access was the elementary school. While petitioner's reply papers attempted to expand the scope of the appeal, after he received a letter restricting his access to his son's Middle School, nothing in his initial papers challenged a city wide policy. The appeal was clearly, facially, directed to the restrictions placed on him by the elementary school, which differed from those placed on him by the middle school. Significantly, the elementary school restrictions were more severe in that petitioner could not come on school grounds except for an emergency pick up situation. The middle school permitted petitioner on school grounds, but with prior notice and while accompanied by a school safety officer. These were two different decisions, from two different schools with two different access policies. Petitioner cannot bootstrap the middle school decision into his appeal of the elementary school decision.
Even if the appeal was moot, petitioner argues that the Court should pass on his case because it meets the exceptions to the mootness doctrine. However, the Court need not consider this issue, because it can address the petition as it pertains to the middle school. As noted by the Commissioner, petitioner has not appealed the middle school determination but the "issue is now before the Court, and it is an issue over which both the Commissioner and the Court may exercise jurisdiction." The Commissioner has no objection to the Court resolving petitioner's claims regarding Wagner Middle School on the merits in this proceeding. The Court agrees, noting that Education Law 310 states in part that "any person conceiving himself aggrieved may appeal by petition to the commissioner of education ...." (emphasis added). The language is permissive, not mandatory, and therefore, a claimant is not required to pursue such avenues of relief prior to seeking court intervention. Rather than analyze whether this case fits the narrow exception to mootness, the Court can address a live controversy with respect to the middle school, which essentially mirrors petitioner's claims as stated with respect to the elementary school.
Petitioner argues that the middle school's determination limiting his access to his son's school is irrational because he is no longer under parole or other supervisory release conditions. Petitioner cites Penal Law 65.10(4-a)(a) and Executive Law 259-c(14) in support of his claim that neither statute prevents him from being on or near school grounds. Petitioner notes that both of these statutes permit a person under parole or probation supervision to apply for permission to enter school grounds if that person "has a family member enrolled in such facility." Therefore, petitioner argues that there is no basis for a blanket prohibition for parents who have been designated as sex offenders.
Respondents argues that "[i]t cannot be disputed that the State has a public policy in favor of protecting children, and that a school has a duty to ensure the safety of its students in its physical custody or orbit of authority." Matter of Santer v. Board of Educ. of E. Meadow Union Free Sch. Dist. , 23 N.Y.3d 251, 265, 990 N.Y.S.2d 442, 13 N.E.3d 1028 (2014) ; see also Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ["(T)eachers ... stand in loco parentis over the children entrusted to them."); People v. Jackson , 65 Misc.2d 909, 319 N.Y.S.2d 731 (App. Term, 1st Dept. 1971) ("A school official, standing in loco parentis to the children entrusted to his care, has, inter alia , the long-honored obligation to protect them while in his charge, so far as possible, from harmful and dangerous influences."). Further, respondent cites the "long-standing deference afforded local school boards to exercise ultimate authority for access to students, school buildings and school property." Lloyd v. Grella , 83 N.Y.2d 537, 547, 611 N.Y.S.2d 799, 634 N.E.2d 171 (1994). Respondent argues that because the decision petitioner challenges here is a discretionary one, it is not subject to a mandamus to compel.
The Court finds that petitioner's arguments demonstrate a fundamental misunderstanding of Penal Law 65.10(4-a)(a) and Executive Law 259-c(14) in that neither create any affirmative rights for the petitioner. Penal Law 65.10(4-a)(a) states that when a court imposes a sentence of probation or conditional discharge on a person convicted of a sexual offense and the victim was under the age of eighteen or such person has been designated a level three sex offender, the Court must impose "as a mandatory condition of such sentence, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds." If petitioner were to violate that condition, he would be subject to a violation of probation or a condition of sentence, which could result in revocation and possible incarceration. See CPL 410.40 ; 410.50; 410.70. More to the point in this case, Executive Law 259-c(14) requires the board of parole to impose the same condition on parolees serving a sentence for a sexual offense with a victim under the age of eighteen, or such person has been designated a level three sex offender. "A person who fails to comply with the terms of his release may be declared delinquent and may thereafter be returned to an appropriate correctional facility. A person on parole ... may be returned for a period equal to the unexpired portion of the maximum term of imprisonment as of the date of delinquency." 9 NYCRR 8004.1.
When petitioner was discharged from parole, he no longer was subject to 9 NYCRR 8004.1. However, relief from parole's jurisdiction does not correspondingly divest schools of their traditional duties to protect students, nor can it be conflated with conferring an affirmative right on petitioner to enter school grounds.
As noted by the respondents, petitioner is a Level III sex offender. As the Risk Assessment Guidelines and Commentary (see Board of Sex Examiners, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Jan. 1996] ) makes clear, SORA was passed to protect society from the threat posed by a sex offender who is about to be released into the community. The magnitude of the threat depends upon two considerations: the defendant's likelihood of re-offense, and the harm that would be inflicted if that defendant did re-offend. Risk Assessment Guidelines and Commentary, Commentary, op. cit., at 2. A defendant's risk category is dictated by the number of points scored on the Risk Assessment Guidelines; 110 points or more results in a classification as a level three offender, that is, an offender with a high risk of recidivism who poses a threat to public safety. See Correction Law 168-l [6 ] [c].
At oral argument in this matter, counsel for both parties discussed the parameters of the actual limitations placed on petitioner. Petitioner stated that he was challenging the city wide policy that constitutes a "blanket prohibition" on parents who are designated as sex offenders. Petitioner states that he is not seeking "unfettered access" as characterized by the respondents, but is merely seeking the same access as any other parent. The NYCDOE argued that the Department's policy was not a "blanket prohibition" because petitioner could access the school, albeit with prior notice and adequate supervision. The letter sent by the middle school principal establishes the latter to be true. Petitioner is not under a "blanket prohibition" from entering his son's school; he can do so under certain restrictions. Further, petitioner is not like all other parents. He has been adjudicated as a Level III sex offender which means he poses the highest possible risk to re-offend. His prior crime was committed against a girl of Middle School age. In light of these facts, the school's determination to place supervisory restrictions on the petitioner has a sound basis in fact. Petitioner notes that he often attended his son's elementary school without restriction and without incident, and that is to his credit. However, at oral argument, counsel for the petitioner conceded that a school has the right to take "precautionary measures" to address "particular concerns." As noted above, schools stands in loco parentis to their students and have a duty to protect them. The precautionary measures and restrictions here address the particular concerns petitioner presents and are rationally related to the school's in loco parentis duty.
The Court finds that the respondents' determinations were not made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious. Nor has petitioner established a clear legal right to the relief demanded.
In accordance herewith, it is hereby
ORDERED and ADJUDGED that the petition is denied and dismissed.
This shall constitute the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is being returned to the attorneys for the Commissioner of the New York State Education Department. The Court will forward all original supporting documentation with the County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Respondent is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.