Opposition Brief — Tuxedo Union Free School District v. Cullen

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No. 93-1906 7

IN THE wT 1 ">

Supreme Court of the United. States...

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October Term, 1994

THE TUXEDO UNION FREE SCHOOL DISTRICT, er ai.,

Petitioners,

against

BRIAN CULLEN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

ROBERT N. ISSEKS

(Counsel of Record)

40 Park Place

Goshen, NY 10924

(914) 294-7292

Attorney for Respondent

Of Counsel:

ALEX SMITH

THE REPORTER COMPANY, INC.—Walton, NY 13856—800-252-7181

Syracuse Office, University Building, Syracuse, NY 13202—315-426-1235

NYC Office—30 Vesey St., New York, NY 10007—212-732-6978—800-800-4264

(4447—1994)

Printed on Recycled Paper

BEST AVAIL ARIF COPY Aaa

Questions Presented

1. Does the enforcement of an otherwise valid state stat-

ute that prohibits electioneering within 100 feet of a polling

place violate the free speech clause of the First Amendment

in the absence of statutorily required distance markers, or

their functional equivalent, defining the boundaries of the

no-electioneering zone where the public is given absolutely

no notice from monitors or anyone else that there is a

prohibited zone and where enforcement of the statute is

directed toward a single person only?

2. Does the ‘‘bad faith’’ exception to the abstention doc-

trine enunciated in Younger v Harris, 401 U.S. 37 (1971),

permit a federal district court to enjoin a pending state

administrative proceeding, initiated to determine the valid-

ity of disciplinary charges against a tenured high school

teacher, based upon a finding by the district court that the

charges were brought by a school district (a) acting with an

‘“‘animus”’ toward that teacher, (b) attempting to enforce a

Statute narrowly restricting political speech against that

teacher in a strictly ad hominem manner, and (c) where the

school district itself had violated that very same statute by

not advising the public in any way that there was a prohibi-

tion against political speech in a certain zone?

ii.

Table of Contents

Pare

Questions Presented... svankaneee eee ieseieians i

Table of Authorities ..:0siisca sauavesenuseusb anes iii

Summary of the Argument ................... POO a

Staternent of the COGS oo secsnsadssacestseeseess 5

Reasons for Denying the Writ ....cccccssccccccses 8

I. Petitioner’s Arbitrary and Selective Infringe-

ment upon Respondent’s Right to Free Political

Speech did Nothing to Advance the Compelling

State Interest in Maintaining the Integrity of the

Electoral PreGee@.oe sc sasccedetsasesesveess 8

II. Petitioners’ Method of Enforcing Education

Law 2031-A was not Narrowly Tailored Be-

cause it Failed to Provide Either Objective or

Uniform Notice of the Content-Based Restric-

tion on the Right to Free Political Speech..... 13

Ill. Petitioners’ Retaliatory and Ad Hominem

Enforcement of the Electioneering Prohibition

Falls Squarely within the Bad Faith Exception to

the Younger Abstention Doctrine ............ 20

COMORIIOM oo vinccncnsndansdsseneeeesehieesiaes 26

ili.

TABLE OF AUTHORITIES

Page

CASES:

Bethel Sch. Dist. No. 403 v Fraser, 478 U.S. 675

LS A en ee ee 9

Boos v Barry, 485 U.S. 312 (1988) ...........5.0-- 13

Brown v Louisiana, 383 U.S. 131 (1966) ........... 18

Burson v Freeman, 112 S.Ct. 1846 (1992)....... passim

City of Houston v Hill, 482 U.S. 451 (1987)... 19, 21, 22

Cox v Louisiana, 379 U.S. 536 (1965) .........44.- 19

Fitzgerald v Peck, 636 F.2d 943 (5th Cir. 1981), cert

dem 452 U.S. 916 (1981)... ccccccccccccccees 21

Grayned v City of Rockford, 408 U.S. 104

UR cha bea he oak 0.006 40eee9 15, 16, 18

Harman v Forssenius, 380 U.S. 528 (1965)......... 21

Hefner v Alexander, 779 F.2d 277 (Sth Cir. 1985).... 23

Intern. Soc. for Krishna Consciousness v Eaves, 601

F.2d 809 (Sth Cir. 1979) ........ccccecceceees 16

iv.

Page

Kreimer v Bureau of Police for Town of Morrisville,

Fee Fo. TRE GT as TOPE 6c nec ckvueaes 18

Kugler v Helfant, 421 U.S. 117 (1978)............. 21

Lewellen v Roff, 843 F.2d 1103 (8th Cir. 1988), cert den

eS et. Se en ee er 21

Middlesex County Ethics Comm. v Garden State Bar

Aad &., 457 UB. SEF FEE) 0 ks eens ccsanadcces 21

Papachristou v City of Jacksonville, 405 U.S. 156

Le: Peer ay Pree re ree err row res 20

Poulos v State of New Hampshire, 73 S.Ct. 760 ..... 20

Pue v Sillas, 632 F.2d 74 (9th Cir. 1980) ........... 23

Reuters Ltd. v United Press Intern., Inc., 903 2d 904

vit S| MT eerer rier errrre rrr ere Teer 23

Schirmer v Edwards, 2 F.3d 117 (Sth Cir. 1993) Tere 17

Williams v Red Bank Bd. of Ed., 662 F.2d 1008 (3rd Cir.

SGA D 0 dv ivecddadansededavasdwisathant asus ym

Wilson v Thompson, 593 F.2d 1375 (Sth Cir. 1979)... 21

Winchert v Walter, 606 F.Supp. 1516 (D.N.J.

rrr re rere ree ty ai, 3

Page

Younger v Harris, 401 U.S. 37 (1971). oo ccvesees passim

STATUTES:

N.Y. Educ. Law §2031-a (McKinney’s 1988)..... passim

N.Y. Educ. Law §3020-a (McKinney’s 1981)...-. passim

BRIEF IN OPPOSITION TO PETITION

SUMMARY OF THE ARGUMENT

Contrary to the assertions made by petitioners on the very first

page of their petition to this Court, the decision below neither

“conflicts with the applicable decisions of this Court”’ nor ‘“‘calls

into question the constitutionality’”’ of any election law of any

state. Rather, this case involves a flagrant violation of basic and

well established free speech and due process principles. Nor is

the decision below a “dramatic departure”’ from the principles of

abstention. Petitioners’ ad hominem enforcement of New York’s

statutory restriction of political speech, directed solely toward

respondent’s expressions of criticism of the School District ad-

ministration, coupled with the School District’s indifference to

the integrity of their polling place, falls squarely within the bad

faith exception to the Younger doctrine.

This case is a perfect illustration of the sort of abusive, un-

checked censorship that can result when the holding in Burson v

Freeman, 112 S.Ct. 1846 (1992) is applied in an unprincipled and

retaliatory manner. Petitioners are attempting to terminate re-

spondent, who has been teaching for the School District for 18

years, because respondent was electioneering within 100 feet of

the entrance to the School District polling place on the day of the

School Board elections, May 6, 1992. Petitioners complain that

respondent violated New York State Education Law §2031-a, the

very same statute that petitioners themselves violated throughout

that election day.!

Petitioners decided not to mention to this Court that the School

District not only failed to place markers or post notice of the

1The complete statute reads as follows:

Electioneering within one hundred feet of polling place

prohibited; distance markers.

(Footnote continued on next page.)

2

electioneering prohibition, but had no one monitoring the en-

trance to the polling place to make sure that there was no elec-

tioneering within the 100-foot area.? Petitioners decided not to

inform this Court that they had no one on site to advise the public

that there was any restriction at all on their right to political

(Footnote continued.)

1. At every election held for the office of trustee or

member of a board of education anc at every vote upon any

proposition or issue in a school district where the election or

vote is held at a different time from, and not during, the annual

meeting of the district, there shall be conspicuously placed, by

the inspectors of election, distance markers at a distance of one

hundred feet from the polling place. Such distance markers

shall indicate the prohibition contained herein and shall be so

placed at least one-half hour before the opening of the polls

and shall remain until the polls are closed.

2. At such elections or voting held at a different time

from, and not during, the annual meeting of the district, while

the polls are open no person shall do any electioneering within

the polling place, or within one hundred feet therefrom in any

public street, or within such distance in any place in a public

manner and no banner, poster or placard on behalf of or in

opposition to any candidate or issue to be voted upon shall be

allowed in or upon the polling place or within one hundred feet

therefrom during the election. For the purposes of this section,

the one hundred foot distance shall be deemed to include a one

hundred foot radial measured from the entrances, designated

by the inspectors of election, to a building where such election

is being held. This section shall not be deemed to prohibit the

board of trustees or board of education from displaying within

any polling place a copy or copies of any budget or proposition

to be voted upon.

N.Y. Education Law 2031-a (McKinney’s 1988).

2The conspicuous and less than candid absence of any mention of

the lack of monitoring in petitioner’s submission to this Court is

troubling. (6-9) (Unless otherwise indicated, all numerals refer to the

petition submitted to this Court by petitioners)

3

speech and that respondent was the only person to whom peti-

tioners ever gave notice that day.3

There is no issue concerning petitioners’ noncompliance with

Education Law §2031-a. There is no dispute that petitioners

failed to place any markers or post any other type of sign any-

where, even though Superintendent Fliegner knew about the 100-

foot prohibition during the morning of the election. But just as

important as petitioners’ noncompliance with Education Law

§2031-a is petitioners’ failure to designate someone to monitor

the school’s entrance throughout the day to enforce the 100-foot

prohibition. The consequence of having no one continuously

watching the entrance, coupled with petitioners’ failure to place

the statutory markers or to post any other type of sign, was that

citizens who were in the area were never given notice of the

restriction on their right to free political speech. Respondent was

the only one so notified.

Rather than making any attempt to comply with the statute’s

express and precise mandates or to otherwise place the public on

notice of the statute’s prohibition, petitioners decided to enforce

the 100-foot restriction according to their own selective personal

discretion. It is this subjective and arbitrary element in peti-

tioners’ method of enforcing the prohibition that makes it consti-

tutionally repugnant. Petitioners’ sparse and selective attention to

the 100-foot radius was not only in direct contravention of the

Statutory requirement that the markers be conspicuously and

continuously placed throughout the day; it undermined the com-

pelling state interest enunciated by this Court in Burson in main-

taining the integrity of the electoral process.

3This omission allows petitioners to make totally inappropriate

interpretive statements such as, ‘‘In essence, the panel majority con-

cluded that, because the School District failed to post distance markers

at 100 feet from the polling place, Cullen was privileged—even after he

received actual notice of the electioneering prohibition—to continue to

electioneer at locations he knew were inside the 100-foot zone.’’(12)

4

Petitioners’ restriction upon respondent’s political speech

within the 100-foot zone, without paying any attention to whether

anyone else expressed political speech within that zone at any

other times during that day, constituted a purely arbitrary method

of restricting a fundamental First Amendment right. If this Court

were to permit election officials to leave unposted and un-

monitored the area which is supposed to be restricted and to

enforce the political speech prohibition whenever and against

whomever they choose, this Court would in effect be granting

these officials the unreviewable discretion to determine which

electioneering would be tolerated within the restricted zone and

which would be prohibited. This constitutionally repugnant dis-

cretion is precisely what petitioners gave themselves on May 6,

1992.

It matters not for First and Fourteenth Amendment analysis

whether anyone other than respondent electioneered within the

restricted zone on the day of the election. Petitioners’

enforcement of the restriction would be nonetheless arbitrary

because they never did anything to make sure that there was no

other electioneering going on within the zone that day. Petitioners

cannot argue that their restriction of respondent’s political speech

furthered any legitimate state interest for the simple reason that

petitioners have no idea whether anyone else might have been

electioneering within the restricted zone. Such is the essential

arbitrariness of petitioners’ restriction upon respondent’s First

Amendment right. This very restriction served only to undermine

the integrity of the polling place. When the compelling state

interest is integrity (unlike interests such as security or public

safety) it can never be advanced, as a matter of law and logic, by a

restriction that is enforced arbitrarily.

As will be more fully explained below, petitioners’ discretion-

ary, ad hominem method of enforcing Education Law §2031-a

cannot pass constitutional scrutiny because (1) it completely

failed to advance the compelling state interest in (and sole pur-

wy

5

pose of) the 100-foot restriction—to protect the integrity of the

electoral process, (2) it was not narrowly tailored to advance that

compelling state interest, and (3) it amounted to an abusive, bad

faith exercise of unbridled censorship power, used by petitioners

to punish an outspoken teacher they do not like and who they had

been trying to get rid of.

Statement of the Case

1. Background.

Respondent has been a high school science teacher for peti-

tioners’ school district for approximately 18 years. Since Febru-

ary, 1990, petitioners have commenced and prosecuted three

separate sets of disciplinary charges against respondent pursuant

to New York Education Law §3020-a. Prior to this time respond-

ent had never been the subject of any disciplinary proceeding. It

is the third set of petitioners’ disciplinary charges against re-

spondent that forms the basis of this lawsuit.

Petitioners’ first §3020-a proceeding against respondent con-

sisted of two charges. The first complained that respondent took

certain students on an unauthorized field trip in an airplane one

Saturday to conduct physics experiments. Respondent admitted

to the three-member §3020-a hearing panel that he did in fact take

his students on this field trip. Petitioners’ second charge alleged

that respondent ‘“‘was ‘mooned’ by (exposed to the buttocks of)

six (6) students in his Physics Class... followed by an invitation

by (him) for the students to do so....” (86a-87a) Respondent

denied this charge and the hearing panel dismissed it as “‘trivial,

inconsequential, of no significance.” (92a) In setting its penalty

on the first charge, a fine of $1,250.00, the panel stated that “the

fine should not be punitive” because respondent “‘is clearly a fine

teacher”’ and that “‘such teachers should be encouraged and even

cosseted.” (94a)

6

In their second set of §3020-a charges petitioners complained

about a scientific experiment that respondent conducted in the

school cafeteria in the presence of upper elementary grade level

students. Petitioners alleged that they told respondent not to

perform the particular experiment, which consisted of spraying

‘“‘Binaca” mouthspray and igniting it to demonstrate its effect,

and that respondent was insubordinate in doing so. Respondent

admitted to the hearing panel that he performed the experiment

but denied that he was insubordinate or that the experiment was

in any way dangerous. The panel sustained the charge and sus-

pended respondent for four months without pay. (107a, 112a)

Petitioners, however, were not satisfied with this punishment

fixed by the panel and they appealed to the New York State

Commissioner of Education arguing that this science teacher of

18 years experience deserved to be terminated.* (32a)

2. Petitioners’ third Education Law 3020-a proceeding

against respondent.

After school hours on May 6, 1992, the day of petitioners’

School Board election, respondent was passing out a flier in front

of the high school entrance. The flier complained that the election

process was unjust in that the two incumbents running for re-

election were running unopposed while the three challengers

were running against each other for the remaining seat on the

board. (78a)

That election day, Fliegner, who was responsible for the con-

duct of the election, knew about the 100-foot prohibition of

Education Law §2031-a because someone had just inquired about

that very subject and he, Fliegner, researched the requirement in a

handbook. (33a, 38a) Nevertheless, neither Fliegner nor anyone

else did anything to make sure that the 100-foot prohibition was

being enforced before 3:30 that afternoon. Up to that point, no

4Although the result of this appeal is not part of the record below,

petitioners chose to insert it in their petition and appendix.

7

markers had been emplaced as required by §2031-a(1), nor had

petitioners bothered to designate anyone to monitor the entrance,

in lieu of the markers, to make sure that there was no electioneer-

ing going on in the restricted zone. (22a-23a, 38a) Petiticners

hadn’t even bothered to measure the 100-foot radius or to post

any sign giving notice of the prohibition. (8a-9a,38a)

What first interrupted petitioners’ insoucience concerning the

protection of their polling place was when, at about 3:30 p.m., a

member of the staff went inside the building and advised Fliegner

that respondent was distributing a flier on the front steps of the

school—a flier that was critical of the School District administra-

tion. (34a) Now, for the first time that day, Fliegner took action to

make sure that there wasn’t any electioneering in the area:

Fliegner went out to confront respondent and to inform him that

he was not to distribute his flier within the 100-foot radius. (34a)

Respondent protested, saying that it was after school hours,5 he

had a right to be there and that he was not doing anything wrong.

(34a) When Fliegner continued to insist that respondent remove

himself, respondent replied, ‘“‘You make up the rules as you go

along.” (34a-35a)

On several occasions later that day and evening, petitioners

observed respondent in the subject area and took measures to

remove him, including calling the police. (34a-38a) Significantly,

however, petitioners still never took any steps to place the public

on notice of the 100-foot prohibition.® (8a-9a, 22a-23a, 33a, 38a)

SAccording to the teachers’ contract that was in effect on May 6,

1992, 3:30 p.m. was after hours for respondent (33a).

°For example, at about 4:00 p.m., when Fliegner was finished with

his confrontation with respondent, he told Nancy Bourke, the District

Clerk, that he was leaving, that there had been some trouble with

respondent regarding electioneering, and that if Bourke had any prob-

lems she should call the police. Fliegner did not instruct Bourke to

make sure the restricted area remained clear, and Bourke didn’t bother

to check on the entrance until one half hour later. (36a-37a)

8

Their focus was upon respondent exclusively, as they still never

bothered to post any sign or designate anyone to monitor the area.

(8a-9a) Throughout the entire election, right up to when the polls

closed, petitioners made no effort to provide uniform notice or

uniform enforcement of the content-based free speech restriction.

(8a-9a)

Four months later, petitioner’s School Board voted to bring this

third set of §3020-a disciplinary charges against respondent for

“illegal” electioneering. Robert Quinn and Michael Santoianni,

the incumbents who were the subjects of criticism in respondent’s

flier, were two of the Board members who voted in favor of

punishing respondent. (39a)

REASONS FOR DENYING THE WRIT

POINT I

Petitioners’ arbitrary and selective infringement upon

respondent’s right to free political speech did nothing to

advance the compelling state interest in maintaining the

integrity of the electoral process.

In Burson v Freeman, 112 S.Ct. 1846 (1992), this Court made

it clear that N.Y. Education Law §2031-a is facially valid because

a 100-foot prohibition of political speech around a polling place

advances the compelling state interest in maintaining the integrity

of the electoral process. While Burson stands for the proposition

that the government may prohibit electioneering within 100 feet

of a polling place, it does not endorse the view that this prohibi-

tion may be enforced by any available means. This Court was

quite explicit that its decision did not address ‘‘as applied”

challenges and that such challenges should be made by an indi-

vidual prosecuted for conduct allegedly violative of the statute.

Burson, 112 S.Ct. at 1857, n 13. This Court noted that, if success-

<8 nS nk dai. ie ~

9

ful, such challenges ‘‘would call for a limiting construction rather

than a facial invalidation.” Jd.

The question that is presented in this case is whether peti-

tioners did in fact advance that compelling state interest when

they restricted respondent’s political speech without making any

attempt to provide uniform notice or enforcement of the statute’s

prohibition respecting the citizenry at large. Petitioners’ actual

notice argument misses this point entirely and Bethel Sch. Dist.

No. 403 v Fraser, 478 U.S. 675 (1986), relied upon so heavily by

petitioners, has nothing to do with this case. Respondent has

never argued that he personally did not receive notice; the issue

of adequacy of notice to respondent has never been raised.7

Respondent maintains that petitioners’ failure to make sure that

all persons in the area (not just respondent) knew of the restric-

tion on their right to free political speech, coupled with peti-

tioners’ failure to make sure that no person in the area (not just

respondent) electioneered within the 100-foot radius, utterly

failed to advance—and effectively destroyed—that very integrity

of the electoral process which the statutory restriction was in-

tended to protect and which this Court in Burson held to be its

constitutional justification.

Petitioners had no reason to restrict respondent’s free political

speech after they had paid absolutely no attention to the 100-foot

radius from the time the polls opened that morning until 3:30 that

afternoon. As stated succinctly in the Burson dissenting opinion:

“Especially when we deal with the First Amendment, when the

reason for a restriction disappears, the restriction should as

well.” Burson, 112 S.Ct. at 1864.

7This is why the dissent below completely misses the mark when it

mischaracterizes the majority opinion below as basing respondent’s

rights as to where to electioneer under “‘the guise of lack of notice’.

(18a)

10

A. The nature of the Burson compelling state interest.

In Burson, this Court upheld the constitutionality of a Tennes-

see statute prohibiting solicitation of votes and display of cam-

paign materials within one hundred feet of a polling place.® After

an examination of the evolution of election reform, both in this

country and abroad, this Court concluded that a restricted area

around polling places was necessary.? Burson, 112 S.Ct. at

1852-56. First, the Court found that ‘‘a State has a compelling

interest in protecting voters from confusion and undue influ-

ence.” Burson, 112 S.Ct. at 1851. Second, this Court recognized

that ‘‘a State ‘indisputably has a compelling interest in preserving

the integrity [and reliability] of its election process itself.” Bur-

son, 112 S.Ct. at 1852 (citations omitted). This Court found that

because these asserted interests involved the right to vote and the

preservation of the “purity of elections” they justified the stat-

ute’s infringement upon political speech in a public forum. /d.

B. Petitioners’ demonstrated indifference to the integrity of their

electoral process.

As the district court correctly observed, petitioners “made no

effort whatever to police the area or send an agent out there to

remain throughout the voting period or see whether other people

were possibly electioneering.”(26a) If petitioners had any concern

8Burson does not address the specific issue of narrow tailoring

raised in this case. Burson involved a facial challenge to a statute.

Similar to Education Law §2031-a, the Tennessee statute under scrutiny

in Burson required objective “boundary signs” to be placed at the one

hundred foot distance. See Tenn. Code. Ann §2-7-111(a) (1991). There

was no evidence of non-compliance by election officials. Therefore,

Burson did not address the issue of the method of enforcing the

prohibition.

9Of course, the “restricted area” around the polling place which

this Court held in Burson “‘was necessary,” never existed at petitioner's

polling place. There can be no “restricted area” if the public was never

informed of the restriction.

11

for the integrity of their polling place, they would have made some

effort to comply with Education Law §2031-a. At the very least,

they would have made sure that no one, not just respondent, at no

time during the day, electioneered within the prohibited area. But

they didn’t. Instead, Fliegner simply directed respondent to remove

himself, called the police to remove him, and later went home for

dinner. Neither Fliegner nor anyone on his behalf ever bothered to

make sure that the public was being put on notice of the restriction

on their right to free political speech.

Not having bothered to comply with the mandates of §2031-a, and

not having bothered to place the public on notice of that statute’s

prohibition, petitioners are now unable to state to this Court whether

anyone other than respondent knew of the 100-foot prohibition on

the day of the election. With no person monitoring the entrance,

petitioners are now unable to state whether anyone other than

respondent electioneered within the restricted area. With no markers

and with no signs, petitioners haven’t even a reasonable ground for

presuming that no one other than respondent electioneered within

the restricted area. Thus petitioners may not now claim that their

electoral process on May 6, 1992, ever had any of the “integrity”

which formed the cornerstone of this Court’s Burson decision.

Petitioners, in other words, may not now argue that they in any way

advanced the compelling state interest which is the constitutional

prerequisite to the infringement upon the content-based political

speech engaged in by respondent.

The dissent in the Court of Appeals is simply wrong to assert that

the majority’s selective enforcement rationale was “purely specula-

tive since the [respondent] apparently has never claimed even to

have seen anyone else who might have been electioneering in the

area where he was.”(17a) First, the majority’s rationale deals not

just with selective enforcement, but with selective notice, as well.

Second, it was not up to respondent to make sure that the area was

monitored from the time the polls opened early that morning until he

arrived at the school entrance at “3:30 p.m., after his workday” (6),

a span of some nine hours or so. This was the School District's

responsibility—a responsibility imposed not only by Education Law

12

Section 2031-a, but by the reasoning of this Court in Burson—and a

responsibility which petitioners chose to completely ignore. As

noted by the majority below, “the School District’s ability to docu-

ment [respondent’s] activities is in dramatic contrast to the virtual

absence of information about the activities of others.’’(10a)

The suspicions expressed by the dissent notwithstanding, the fact

that respondent did not claim he saw anyone else electioneering is

certainly no basis for inferring that no one else was, especially when

respondent was teaching for most of the day and was therefore not

even at the site. As the majority below observed, ““A government

body charged with enforcing a law that seeks to preserve the delicate

balance between the exercise of First Amendment rights and the

promotion of fair and honest elections should not be permitted to

ignore safeguards designed to preserve that balance, and then, at

day’s end, be able to report only on the activities of a single

individual with whom bad blood already existed.” (10a-11a) Peti-

tioners and, apparently, the dissent below, are insensitive to that

“delicate balance.”

Because the 100-foot prohibition is constitutional only by virtue

of its advancement of the compelling state interest found by this

Court in Burson, and because petitioners’ method of enforcement

did nothing to insure the integrity of their polling place (since it

restricted only respondent’s electioneering and did nothing to put

the public on notice), petitioners’ method of enforcement was not

even reasonable, let alone the least restrictive means.

The issue therefore is not one of state statutory construction.

Petitioners are mistaken when they assert to this Court that the

construction of Section 203 1-a “‘divided the court below.”’(4) Rather

than “constructing” Section 2031-a, the majority below was con-

cerned with the arbitrary method by which petitioners chose to

enforce 203 1-a:

Its method of enforcement provided no notice of either the

parameters of the campaign-free zone or the nature of the

electioneering prohibition itself. Nothing was used in lieu of

13

the distance markers, nor was any one person assigned the

responsibility of monitoring the campaign free zone for

electioneering violations.

+ é

(8a) The majority concluded that petitioners’ “efforts would

appear to have focused exclusively on the activities of [respond-

ent], someone with whom the School district ‘had a past history

of personal conflict.’’’ (10a)

Although the dissent below was interested in whether the New

York State Legislature intended that the 100-foot prohibition be

conditioned upon the placing of the prescribed markers, the

majority accurately saw this question as irrelevant. Rather, the

majority correctly perceived the issue as one of federal constitu-

tional dimension: whether the prohibition contained in Education

Law §2031-a may be enforced by a method which does nothing to

protect the integrity of the electoral process and which involves

an arbitrary and ad hominem focus upon a single dissenting

individual.

POINT II

Petitioners’ method of enforcing Education Law 2031-a

was not narrowly tailored because it failed to provide

either objective or uniform notice of the content-based

restriction on the right to free political speech.

Because Education Law §2031-a is a content-based regulation

of political speech in a public forum, it is not enough that the

restriction on its face serves the compelling state interest in

protecting the integrity of the electoral process. Petitioners must

show that their method of enforcing the restriction was narrowly

tailored to advance that interest. See Burson, 112 S.Ct. at 1851.

The only means by which an infringement of content-based polit-

ical speech may be regulated is the “‘least restrictive means.”’

Boos v Barry, 485 U.S. 312, 329 (1988). In the context of a

14

content-based regulation on speech, a government regulation is

not “narrowly tailored”’ if less intrusive means than those em-

ployed are available. /d.

Obviously hoping to catch this Court’s attention, petitioners

trumpet a false alarm that the opinion below has facially invali-

dated “the election laws of dozens of other states."’(14) Respond-

ent never challenged the facial validity of any election law that

lacks a requirement to post markers. The reason is that, in this

case, (1) there was neither objective nor uniform notice to the

public of any kind and (2) there was a bad faith, strictly ad

hominem enforcement of the electioneering prohibition. Hence

there is no occasion in this case to determine whether the markers

required by Education Law §2031-a constitute the only accept-

able means of providing objective and continuous notice of an

electioneering prohibition.

As respondent argued to the courts below, Education Law

§2031-a assures that the infringement upon the First Amendment

right is enforced in a narrowly tailored manner and therefore

provides a model of the least restrictive means.'° This is because

the emplacement of markers serves to protect two important,

indeed fundamental, constitutional principles. First, the markers

clearly and objectively indicate the forbidden area, enabling citi-

zens to conform their conduct according to the law. Second,

because the school districts are required to place the markers “‘at

least one-half hour before the opening of the polls and shall

remain until the polls are closed” [Education Law §2031-a(1)],

all members of the public who are in the area are put on contin-

uous and uniform notice of the prohibition. This is not to say,

however, that these two principles can only be served by emplac-

1\ORespondent submits that the least restrictive means of infringing

upon the First Amendment rights at issue are provided for in Education

Law §2031-a. But this particular proposition need not be decided in this

case because of petitioners’ remarkable failure to provide any uniform

notice to the public.

oe

15

ing markers. Respondent has consistently argued to the courts

below that it was the failure to emplace markers or their func-

tional equivalent—such as a designated monitor throughout the

day—which violated his rights to free speech and due process.

Respondent has made no contention—nor did the court below

impose any requirement—that a state election statute must con-

tain one specific method of enforcement in order to be constitu-

tionally valid. It must be presumed that officials in other states

are not going to engage in the kind of bad faith, ad hominem

enforcement of their electioneering prohibition that has marred

this case.

Respondent contends that the emplacement of markers, or their

functional equivalent, ensures equal enforcement of the statute by

those entrusted with prosecuting violators. It also lets each and

every citizen know that he is not being singled out, since it will be

apparent to him that the prohibition applies to everyone, equally,

without regard to the content of his electioneering speech. Only

by satisfying these two fundamental constitutional requirements

can the electioneering prohibition be said to advance its intended

goal—protection of the integrity of the electoral process.

A. The due process function of an objective notice requirement.

Because we assume that persons are “free to steer between

lawful and unlawful conduct, we insist that laws give the person

of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that they may act accordingly.’ Grayned v City of

Rockford, 408 U.S. 104, 108 (1972). The emplacement of

markers or its functional equivalent would provide notice to those

who wish to electioneer, thus providing a concise and accurate

means of infringing upon the right of free speech. As this Court

has noted, “‘[wJhere First Amendment interests are affected, a

precise statute ‘evincing a legislative judgment that certain spe-

cific conduct be . . . proscribed,” . . . assures us that the legislature

has focused on the First Amendment interests and determined

16

that other governmental policies compel regulation.”’ Grayned,

408 U.S. at 109 n 5.

By ignoring the requirements of Education Law §2031-a and

by enforcing the prohibition according to their own unauthorized

personal discretion, the school officials here entirely undermined

the due process interests served by the objective markers. There

was no clear line distinguishing between lawful and unlawful

conduct, thus increasing the likelihood of arbitrary and capricious

enforcement of the prohibition.'! This, as this Court has empha-

sized, has a chilling effect on the exercise of constitutionally

protected rights. Where an uncertain law “‘abuts upon sensitive

areas of basic First Amendment freedoms it operates to inhibit the

exercise of those freedoms. Uncertain meanings inevitably lead

citizens to ‘steer far wider of the unlawful zone’ . . . than if the

boundaries of the forbidden area were clearly marked.’’ Grayned,

408 U.S. at 104.

““[V]ague measures regulating first amendment freedoms en-

able low-level administrative officials to act as censors, deciding

for themselves which expressive activities to permit. The very

existence of this censorial power, regardless of how or whether it

is exercised, is unacceptable.” Intern. Soc. for Krishna Con-

sciousness v Eaves, 601 F.2d 809, 823 (Sth Cir. 1979).

Petitioners raise a non-issue when they dwell upon whether the

distance of 100 feet is the maximum radius which may be re-

stricted under the First Amendment. Respondent never made the

frivolous argument that any distance greater than 100 feet would

‘This was especially true since no one ever bothered to measure

the 100-foot radius and point out that distance to respondent. Not even

an attempt was made to distinguish lawful and unlawful conduct during

most of the day when no school official was outside delineating the

forbidden zone. During the period of time when no school official was

outside indicating the forbidden zone, this purpose of the statute was

completely undermined.

17

be violative of his right to free political speech. Petitioner’s submis-

sion is misleading in its suggestion that such an argument was made.

When the majority below made the point about respondent’s not

being able to stand “just 100 feet away” (18a), it was not implying

that any restriction greater than 100 feet would be violative of the

First Amendment. Rather, the point was made to illustrate the

problem which arises when an objective delineation of the restricted

zone is lacking. Because the statute proscribes electioneering within

100 feet, the members of the public are entitled to know where their

speech is prohibited and where it is not. They should not be forced to

guess and they should be confident that everyone else is being

subjected to precisely the same prohibition. It is the complete lack of

objectivity in petitioners’ method of enforcement which respondent

challenged and which the decision below addressed. Respondent

never argued that a statutory restriction greater than 100 feet would

be unconstitutional.

Petitioner’s use of Schirmer v Edwards, 2 F.3rd 117 (Sth Cir.

1993), like their adequacy-of-notice argument, serves only to distort

the issues decided below. When the issue at bar is properly stated—

whether the Constitution requires objectivity in the prohibition’s

enforcement—the Fifth Circuit’s reasoning in Schirmer is readily

seen to be in harmony with the Second Circuit opinion below. In

Schirmer the appellants argued, inter alia, that Louisiana did not

have a compelling interest in banning non-ballot political activity

nor passive political speech around the polls. Rejecting this argu-

ment, the Fifth Circuit approved the view that “an across-the-board

ban on politicking was necessary to protect voters’ rights because

any exceptions to the total ban on political speech would necessarily

create the need for on the spot enforcement . . . [and] that to allow

any politicking in the campaign-free zone would open the door to

subterfuge.” Schirmer, 2 F.3d at 122. The Schirmer Court concluded

that “problems with on the spot decision making and varying de-

grees of enforcement would result in uneven application of the

statute.” Schirmer, 2 F.3d at 122. This is precisely why there must be

objectivity in the enforcement of the prohibition and this is precisely

the point grasped by the majority below.

18

In the absence of a clearly marked forbidden zone, petitioners

created a condition which operated to inhibit the exercise of First

Amendment freedoms. Clearly petitioners’ method was not the

“least restrictive means” of achieving the compelling state interest.

Instead, petitioners’ method risked causing citizens to “steer far

wider of the unlawful zone”’ than necessary! thereby inhibiting the

lawful exercise of the fundamental First Amendment right to ex-

press political speech.

B. The equal protection function of a continuous and uniform notice

requirement.

As stated above, petitioners’ method of enforcing Education

Law §2031-a, in addition to failing to provide well-delineated

objective notice, also increased the likelihood of arbitrary and

selective enforcement.!3 While the government may infringe

upon constitutional guarantees under limited circumstances, “‘it

must do so in a reasonable and nondiscriminatory manner,

equally applicable to all and administered with equality to all. It

may not do so as to some and not to all... .”” Brown v Louisiana,

383 U.S. 131, 143 (1966).!4

12This is exactly what happened when Officer Kelly walked re-

spondent “‘well outside the 100 feet.”’ (36a)

13This Court has cautioned that “if arbitrary and discriminatory

enforcement is to be prevented, laws raust provide explicit standards for

those who apply them. A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for resolution on an ad

hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory application.”” Grayned, 408 U.S. at 108.

14The government may not impinge “upon [First Amendment

rights] . . . in an arbitrary and discriminatory manner without cause,

justification, or reason.”” Kreimer v. Bureau of Police for Town of

Morrisville, 765 F. Supp. 181, 195 (D.N.J. 1991). “It is beyond dispute

that the government may not penalize or afford different, discrimina-

tory treatment to a disfavored, disliked individual or class of individ-

uals.”” Jd.

19

Before and after respondent was told to cease his electioneer-

ing, when the officials were either inside the building or eating

dinner in their homes, there was nothing in place, and no one

stationed in the area, to prohibit persons from expressing other

views (perhaps in support of the unopposed candidates), to pro-

hibit persons from passing out their own fliers unimpeded, or to

prohibit persons from engaging in some other form of

electioneering.

The dangers inherent in petitioners’ random and haphazard

method of “‘protecting the integrity of the electoral process”’ are

obvious. “It is clearly unconstitutional to enable a public official

to determine which expressions of view will be permitted and

which will not or to engage in invidious discrimination among

persons or groups. . . by selective enforcement of an extremely

broad prohibitory statute.”” Cox v Louisiana, 379 U.S. 536,

557-58 (1965). The discretion in public officials to determine

which views will be permitted “sanctions a device for the sup-

pression of the communication of ideas and permits the official to

act as a censor.”’ /d. Petitioners’ arbitrary method of enforcement

“effectively grant[ed] . . . [the School District] the discretion to .

. . [punish] selectively on the basis of the content of speech.”’ City

of Houston v Hill, 482 U.S. 451, 465 n 15 (1987).

Petitioners essentially assumed discretionary censorship

powers and authorized themselves to decide when it was appro-

priate to keep the 100-foot radius clear and when they didn’t have

to pay any attention to it at all.

What petitioners want this Court to ignore is tiat their utiliza-

tion of verbal notice in this case amounted to giving notice only

to respondent without ever bothering to make sure that everyone

else in the area received the same notice. By fixating upon the

fact that other states do not have marker requirements similar to

New York’s, petitioners attempt to divert attention away from the

fact that their method of verbal notice on May 6, 1992 was purely

20

arbitrary. Perhaps verbal notice could withstand constitutional

scrutiny if there were someone continuously monitoring the area

to make sure that no one violated the prohibition. But that issue is

not presented in this case. Rather, petitioners want this Court to

hold that verbal notice of the infringement upon the right to free

political speech may be given whenever they please and to

whomever they please. This is precisely why respondent was

justified in saying to Fliegner, ‘“‘You’re making the rules up as

you go along.”

In sum, petitioners’ method of enforcing the prohibition opens

wide the opportunity for abuse. It provides neither objective

notice nor uniform notice. The result is unbridled, discretionary

censorship power over content-based political speech.!> As stated

above, a restriction on political speech must be narrowly tailored

to serve a compelling state interest. In this case, petitioners’

method of enforcement, rather than advancing the compelling

state interest, actually undermined it, and thus cannot be deemed

in any way to be narrowly tailored.

POINT Ill

Petitioners’ retaliatory and ad hominem enforcement of

the electioneering prohibition falls squarely within the

bad faith exception to the Younger abstention doctrine

Younger v Harris, 401 U.S. 37, 53 (1971) and its progeny are

clear that a federal court should intervene if bad faith prosecution

15Just as in the case of vague statutes, petitioners’ discretionary, ad

hominem method of enforcing Education Law §2031-a is “unaccept-

able” because it ‘encourages arbitrary and erratic arrests and convic-

tions.” Papachristou v City of Jacksonville, 405 U.S. 156, 162, (1972);

see also, Poulos v State of New Hampshire, 73 S.Ct. 760, 767, where

this Court reiterated the well-settled principle that a regulation of First

Amendment protected activity is invalid if it is left in the “uncontrolled

discretion” of those entrusted with its enforcement.

21

or harassment or other “‘extraordinary circumstances” are pres-

ent. See, e.g., Middlesex County Ethics Comm. v Garden State

Bar Ass’n., 457 U.S. 423, 435 (1982). It is difficult to imagine a

stronger indication of bad faith prosecution than when govern-

ment officials attempt to punish a person for violating a law

which those officials knowingly violated themselves.

In the context of the Younger doctrine, ‘‘bad faith” generally

means that a prosecution has been brought without a reasonable

expectation of obtaining a valid conviction. Kugler v Helfant, 421

U.S. 117, 126 n 6 (1978). However, a showing that a prosecution

was brought in retaliation for, or to discourage, constitutional

rights “will justify an injunction regardless of whether valid

convictions conceivably could be obtained.”’ Lewellen v Roff, 843

F.2d 1103 (8th Cir. 1988), cert den 489 U.S. 1033 (1989); see

also, Fitzgerald v Peck, 636 F.2d 943 (Sth Cir. 1981), cert den

452 U.S. 916; Wilson v Thompson, 593 F.2d 1375, 1377 (Sth Cir.

1979). In First Amendment cases the strength of the constitu-

tional claim, while not establishing bad faith as a matter of law,

strongly corroborates the allegation of the defendant’s improper

motive. Winchert v Walter, 606 F. Supp. 1516, 1522 (D.N.J.

1985).

Even though this case does not involve a First Amendment

challenge to the facial validity of a state statute, abstention is

inappropriate for the reasons stated by this Court in City of

Houston v Hill, 482 U.S. at 467-471. Petitioners’ bad faith,

selective enforcement of a state statute which requires a delicate

balance between a legitimate state interest of polling place integ-

rity and the citizen’s right to freedom of political speech presents

a serious constitutional question that the courts below correctly

entertained. As in Hill, petitioners’arbitrary method of

enforcement is not “‘fairly subject to an interpretation which will

render unnecessary or substantially modify the federal constitu-

tional question.” Hill, 482 U.S. at 468, quoting Harman v For-

ssenius, 380 U.S. 528, 534-535 (1965). Regardless of any state

22

court interpretation of Section 2031-a, the federal constitutional

question at bar remains. As Hill makes clear, where resolution of

the federal claim is not dependent upon a question of state law, it

is immaterial that state courts have never interpreted the subject

statute. Hill, 482 U.S. at 469-470.

The district court found that petitioners acted in bad faith by

commencing and maintaining the disciplinary charges. In addi-

tion to a specific finding that the petitioners’ actions rose to a

level of ‘“‘animus,” the district court also found that “no discipli-

nary charges would have been brought except for the content of

the pamphlet.’’(26a) The district court continued:

Therefore, the Court finds the disciplinary charges were

brought in bad faith and maintained and continued in bad

faith and constitute an ongoing violation of the plaintiffs

First Amendment rights to be free in his speech and not to

be harassed or prosecuted in any way for his expressions

or based on the content of his expressions since he could

not be found to have violated the law because no markers

were there.

(26a)

Respondent had been a teacher for petitioners’ school district

for about eighteen years. As of the day of the election, petitioners

had prosecuted two then recent sets of §3020-a charges against

respondent and were actively trying to get him fired. Their sec-

ond set of charges was then still pending and had not yet been

determined by the hearing panel when petitioners voted to com-

mence a whole new set of charges aimed at disciplining respond-

ent for violating the same statute that they themselves had vio-

lated. Before 3:30 in the afternoon of the day of the election, the

school officials in the building had paid no attention to the

school’s entrance. It was not until a staff member came inside and

brought to Fliegner’s attention that “‘Mr. Cullen” was outside

Reattenial

23

passing out a flier (a flier that was critical of the School District

administration) that Fliegner showed any concern about the 100-

foot zone. Fliegner’s conduct was transparently motivated by his

animus against respondent, not by his concern for the integrity of

the electoral process. The same is true for the subsequent conduct

of the remaining petitioners when they voted to bring these

disciplinary charges, as determined by the district court.

There is ample basis in this record for the district court to have

drawn the inference that petitioners were acting in bad faith. Such

an inference is not only reasonable, it is compelling in view of the

significant First Amendment violation involved. See Winchert,

606 F. Supp. at 1522.

In essence, petitioners are asking this Court to substitute its

own conclusion on the issue of bad faith for the conclusion

reached by the district court. It is well established, however, that

such de novo review is inappropriate. Because the decision

whether to abstain ‘involves a discretionary exercise of a court’s

equity powers” the test applied “in reviewing district court

abstention decisions is whether there has been an abuse of discre-

tion.” Pue v Sillas, 632 F.2d 74, 78 (9th Cir. 1980) (court review-

ing district court’s ruling regarding Pullman abstention); see

also, Hefner v Alexander, 779 F.2d 277, 280 (Sth Cir. 1985)

(applying “clearly erroneous” standard in review of alleged facts

that constitute bad faith harassment under Younger doctrine).

“An abuse of discretion exists when the district court has made

an error of law or of fact.”” Reuters Ltd. v United Press Intern.,

Inc., 903 F.2d 904, 907 (2d Cir. 1990). A trial court’s discretion is

exceeded “‘when the decision reached is not within the range of

decisionmaking authority a reviewing court determines is accept-

able for a given set of facts.” Id.

It was readily apparent to the district court that when peti-

tioners commenced their third 3020-a disciplinary proceeding

against respondent they were not motivated by a good faith belief

24

that such charges were necessary in order to protect the integrity

of their polling place. It was obvious to the district court that

petitioners seized upon respondent’s electioneering as an oppor-

tunity to bolster their then ongoing efforts to get respondent

fired.'!© The majority below was correct in holding that the spe-

cific findings in the district court’s opinion provided the basis for

its conclusion that petitioners “‘sought Cullen’s termination and

that the charges that Cullen violated Section 2031-a were brought

in retaliation for the exercise of Cullen’s First Amendment right

to protest the school board elections.”(13a) As the majority

below properly held, “‘Because the State of New York cannot

have a legitimate interest in the disciplinary proceeding, permit-

ting it to continue would not serve the purposes of the Younger

doctrine...”” (13a-14a)

Petitioners’ abstention argument, therefore, fails for essentially

the same reason their First Amendment argument fails: peti-

tioners refuse to come to terms with the district court’s basic

finding that the School District engaged in a blatantly ad homi-

nem restriction of respondent’s fundamental right of political

speech. The district court found that petitioners demonstrated a

complete indifference to the integrity of their polling place (the

sole justification for restricting respondent’s speech in the first

place). Petitioners abused the limited power accorded them to

restrict political speech in their single minded effort to have

respondent terminated. This demonstrated indifference to the

integrity of their electoral process, coupled with the ongoing

16Petitioners’ second set of 3020-a charges against respondent

were filed in February, 1992. The third set of 3020-a charges arising out

of respondent’s electioneering were filed in September, 1992. The

hearing panel’s penalty decision on the second set of charges was not

rendered until October, 1992. When the panel authorized only a penalty

of suspension on the second set of charges, petitioners appealed to the

State Commissioner, hoping to get respondent terminated.

a ree Se whe

-" in,

25

** grudge fight”’ which the district court found rose to the “level

of a animus”, provided ample basis for the finding of bad faith.!7

In all likelihood this incident never would have occurred if

petitioners had complied with the mandates of Education Law

§2031-a and set up the required markers. If the markers, or their

functional equivalent, had been in place, respondent would have

had no cause to say to Fliegner, “‘ You make up the rules as you go

along. You use your position, your authority to get your way.”

Since the markers were not in place, and since there was no other

indication to respondent that petitioners were applying the law to

anyone other than himself, he was justified in believing that he

was being discriminated against and unfairly censored. Peti-

tioners opportunistically decided to try to fire respondent by

taking advantage of their own violation of the law. This is blatant

bad faith.

In light of the underlying facts and circumstances of this case it

cannot be said that the district court abused its discretion by

finding that petitioners acted in bad faith by commencing and

maintaining the §3021-a disciplinary charges. There is ample

proof in the record to support this finding and it should not be

disturbed.

17Williams v Red Bank Bd. of Ed., 662 F.2d 1008 (3rd Cir. 1981),

relied upon by petitioners, is clearly distinguishable since the plaintiff's

complaint in that case did not allege bad faith or any facts similar, in

quality or degree, that would provide the basis for inferring bad faith.

Williams does not provide a factual scenario where the disciplinary

body failed to comply with the very same law they were attempting to

enforce, or where the court made a specific finding of animus, or where

the defendants were engaged in an ongoing struggle to fire plaintiff, or

where disciplinary charges went directly to the exercise of constitu-

tionally protected political speech.

26

Conclusion

The First Amendment requires that the element of subjectivity

be removed from the enforcement of any restriction upon con-

tent-based political speech. Because petitioners’ arbitrary method

of enforcing the 100-foot prohibition was pervasively subjective,

it invited abuse and uneven application and actually undermined

the “‘compelling state interest” in maintaining the integrity and

reliability of petitioners’ electoral process. Because petitioners

were obviously not concerned with electioneering within the

restricted zone, per se, but only with taking the opportunity to

discipline respondent, their §3020-a proceeding was commenced

and maintained in bad faith and was properly enjoined by the

district court.

This Court should deny certiorari.

Dated: Goshen, New York

October 4, 1994

Respectfully submitted by:

ROBERT N. ISSEKS

(Counsel of Record)

40 Park Place

Goshen, NY 10924

(914) 294-7292

Attorney for Respondent

Of Counsel:

ALEX SMITH