Papers Considered: Notice of Petition, Verified Petition of Philip G. Ryan, Lanny Earl Walter, Esq., dated April 29, 2020 with Exhibits 1-4; Answer of Tracy Melinda Kellogg, Esq., dated June 8, 2020; Reply to Counterclaim, dated June 9, 2020 with Exhibits 5-6 and Memorandum of Law of Lanny Earl Walter, Esq., dated June 11, 2020. Petitioner Marbletown Democratic Committee (Committee), in this Article 78 proceeding, challenges the action of Respondent Richard Parete, Supervisor of the Town of Marbletown (Supervisor) barring its use of the Rondout Municipal Center (Center), seeks an order permitting such use for its regular meetings when the Center reopens and for attorney’s fees and costs. The Supervisor opposes and seeks attorney’s fees and costs. Background Since 2015, and at all pertinent times thereafter, Rondout Valley Central School District (District) leased the Center to the Town of Rosendale and the Town of Marbletown (Town). The lease provides the premises are to be used “as and for Lessee’s Town governmental offices and other uses,” excepting use as a K through 12 school. At all pertinent times hereinafter, Richard Parete acted in his capacity as the Supervisor of the Town. The Committee used the Center for its meetings from 2016 until January 3, 2020, at which time the Supervisor advised, in an email, that such use would no longer be permitted, complaining that the Committee had attempted to expel 2 Town Board members and that a taxpayer-owned building should not be used for such hateful purpose. In addition, he advised that he was instituting a Town policy prohibiting “political parties from having meetings on town-owned property.” In a second email the Supervisor advised the Committee that its use of the premises was prohibited by Ed. Law §414(1) and that the Center’s maintenance staff had been so-advised.1 A copy of the lease was produced in response to the Committee’s Freedom of Information Law Request for documentation of the agreement between the Town, Town of Rosendale and the District regarding the Center’s use. Parties’ Contentions The Committee claims, in its three causes of action, that the Supervisor’s action violates their First Amendment rights and is, therefore, affected by an error of law; that his action was ultra vires, since it had not been authorized by the Town; and, arbitrary and capricious, as contrary to past practice, respectively. It maintains, inter alia, that the Supervisor was motivated by bias against the Committee following his removal therefrom, subsequent to his run for Town office on the Republican line after losing the Democratic primary. Further, it avers that the lease does not restrict the Committee’s use and that the premises have been used routinely by it and other civic organizations. In support, the Committee offers the lease and 3 emails from the Supervisor. In the third, dated after this proceeding commenced, the Supervisor states that the January 2020 email should not have been sent, that his comments were wrong and that he had been upset that the Committee filed disloyalty charges against 2 Town officials. In opposition, the Supervisor submits an unverified answer admitting authorship of the first 2 emails and otherwise stating a general denial or denial of knowledge sufficient to respond. Discussion/First Amendment Here, the Supervisor’s content-based reasons for restricting the Committee’s speech, to wit, his disagreement with the Committee’s decision to expel disloyal members, renders it an unconstitutional limitation on the latter’s exercise of its First Amendment rights. People v. Griswold, 13 Misc 3d 560, 563-64 [NY City Ct 2006] (a speech restriction is content-based when it is “due to a disagreement with the message it conveys”), citing Ward v. Rock Against Racism, 491 US 781, 791 [1989] (government may impose reasonable restrictions on time, place, or manner of protected speech, even in a public forum, if they are justified without reference to content and narrowly tailored to serve a significant governmental interest); People v. Marquan M., 24 NY3d 1, 7 [2014] (“government generally has no power to restrict expression because of its message or content”); New York State Senate Republican Campaign Comm. v. Sugarman, 165 AD3d 1536 [3d Dept 2018]; see also, Nicolai v. Kelleher, 45 AD3d 960, 962 [3d Dept 2007] (candidate of one party has no standing to challenge the internal affairs and operating functions of another political party). Moreover, even if the Center were operated as a school, thereby subjecting speech restrictions to lesser scrutiny, same may only be based upon reasonable distinctions that are viewpoint neutral. Bronx Household of Faith v. Community School Dist. No. 10, 127 F3d 207, 211-12 [2d Cir 1997]. By contrast, the Supervisor’s restriction is patently unreasonable as it seeks “to suppress expression merely because [a] public official[ ] oppose[s] the speaker’s view.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 US 788, 800 [1985] (internal citations omitted). Further, it is unconstitutional for a government entity “to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place.” Widmar v. Vincent, 454 US at 267-68. Here, the Committee’s substantiation of its claim that the Supervisor acted under color of law to deprive it of its federal constitutional First Amendment rights, Fields v. Vil. of Sag Harbor, 92 AD3d 718 [2d Dept 2012] (municipal policy can be shown by establishing that an official who is a final policy-maker directly committed or commanded the violation of the plaintiff’s rights) requires consideration of an attorney-fee award. 42 US §§1983, 1988; Rahmey v. Blum, 95 AD2d 294, 296 [2d Dept 1983] (prevailing party [pursuant to 42 USC §§1983, 1988] entitled to fee award “unless special circumstances would render same unjust” and burden is on respondent to establish such circumstances). Arbitrary and Capricious Review An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. Resto v. State, Dept. of Motor Vehicles, 135 AD3d 772, 773 [2d Dept 2016]. Ed. Law §414(1) states that schoolhouses and grounds are under the control and supervision of the district board of education and that it may “adopt reasonable regulations” for their use “when not in use for school purposes “. Political meetings are permitted but “no meetings sponsored by political organizations shall be permitted unless authorized by a vote of a district meeting.” Ed. Law §414(1)(e). Here, when the District leased the premises for “Town governmental offices and other uses,” and precluded its use as a K through 12 school, it no longer operated as a school, thereby ceding authority to the lessees as to other uses. Indeed, the Supervisor cites no statute, rule, law or lease provision providing a rational basis for barring the assembly of a political organization of Town residents for its regular business on Town premises, as had been the practice for 3 years, and actually concedes his improper motive. Widmar v. Vincent, 454 US 263, 267-68 [1981]. Further, the Supervisor’s failure to present evidence or argument in support of his unverified answer and his admitted bias clearly establish the arbitrary and capricious nature of his extemporaneous Town policy banning political meetings at the Center. Accordingly, the petition is granted to the extent of annulling the Supervisor’s challenged action as based upon an error of law in violation of the Committee’s First Amendment rights and as arbitrary and capricious under the 1st and 3rd causes of action, respectively, with costs to the Committee, pursuant to CPLR §8101, and an attorney-fee award upon submission of proof of reasonable fees expended by the Committee herein on notice to the Supervisor by September 25, 2020. Any remaining contentions hereby are rendered academic. This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to the Committee, which is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers have been E-filed. Dated: September 10, 2020
