# Cullen v. Fliegner

> Court of Appeals for the Second Circuit · February 28, 1994 · 18 F.3d 96

URL: https://www.frixlaw.com/law-library/cases/6929958

## Case

- **Full name:** Brian CULLEN v. Dr. Herbert FLIEGNER, Joseph Ribando, Robert Quinn, Keld Alstrup, Bernard Modder, Constance Jones Phelps, Michael Santoianni, and the Tuxedo Union Free School District
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 28, 1994
- **Citations:** 18 F.3d 96; 1994 WL 59923
- **Precedential status:** Published
- **Opinion:** Dissent by Kearse
- **Judges:** Carter, Jacobs, Kearse
- **Cited by:** 100 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6929958

## How later opinions describe it (automated extraction)

- affirming fee award including some fees related to “discrete portion” of pre-litigation administrative proceeding based on finding that there was a “particular nexus between the work in the disciplinary proceeding for which fees were requested and the demands of the district c…
- affirming the district court’s injunction and holding that the district court’s findings of a “past history of personal conflict” between Cullen and the school board, and the “strictly ad homi-nem ” manner in which the school board had disciplined him were sufficient to establ…
- concluding that abstention was inappropriate where the proceedings were instituted due to personal conflicts and animus
- noting that “a state cannot have a legitimate interest in discouraging the exercise of constitutional rights”

## Opinion text

KEARSE, Circuit Judge,
dissenting:
I respectfully dissent.
Leaving aside my disagreement with the majority’s hypothesis of possible selective enforcement of the prohibition against electioneering within 100 feet of the High School, a matter that is purely speculative since the plaintiff apparently has never claimed even to have seen anyone else who might have been electioneering in the area where he was, I think the majority is far wide of the mark in holding that the defendants violated the plaintiffs constitutional rights by seeking to hold him responsible for violating N.Y. Education Law § 2031 -a (McKinney 1988).
First, I disagree with the majority’s view that the plaintiff in this case “did not violate § 2031-a because the School District did not provide the notice required by that statute.” Majority opinion ante at 103. Section 2031-a(2) provides that “no person shall do any electioneering within the polling place, or within one hundred feet therefrom....” Though § 2031-a(l) requires the posting of notices, the prohibition in § 2031-a(2) is not conditioned on the posting of notices. Compare § 2031-a with N.Y. Education Law § 2609 (4-a)(b) (McKinney 1981) (“Where such markers are so placed and the polls are open, no person shall do any electioneering within the polling place, or within one hundred feet therefrom....” (emphasis added; emphasized language does not appear in § 2031-a(2))).
Further, even assuming that the plaintiff was ignorant of the law that forbade him to engage in electioneering activities within 100 feet of the school, and that his ignorance of the law gave him an excuse initially for electioneering activities within that range, he plainly knew of the prohibition after a policeman was called and removed him from the 100-foot area.
Finally, even accepting the proposition that without physical signs demarking the area 100 feet from the High School, this plaintiff did not know just how far away from the High School 100 feet extended, I cannot accept the proposition that he did not know that the High School steps were within 100 feet of the school.
As the majority concedes, “irrespective of where the 100 foot boundary was located, Appellee was well aware that he was inside it when he continued electioneering on the High School steps after speaking with the Superintendent and the police.” Ante at 102. I do not agree with the majority that the failure of the school board to post markers showing the plaintiff where to stand in order to be “just” 100 feet away, ante at 102 (emphasis in original), gave him license to stand 0 feet away in the guise of lack of notice and to hold defendants liable for allegedly violat *107 ing his right to campaign exactly 100 feet away.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6929958. Public record. Not legal advice.