
    Board of Education of Belmont Central School District et al., Appellants, v Margery Gootnick et al., Respondents.
    Argued March 24, 1980;
    decided April 24, 1980
    
      POINTS OF COUNSEL
    
      Harvey Mandelkern, Bernard T. McGivern, Norman H. Gross and Henry F. Sobota for appellants.
    I. Section 3020-a, as amended by chapter 82 of the Laws óf 1977, is in violation of the Constitution of the State of New York in that á portion of it is a private law adding an additional subject not embraced in its title. (People ex rel. Lee v Board of Supervisors of County of Chautauqua, 43 NY 10.) II. Section 3020-a, as amended by chapter 82 of the Laws of 1977, violates section 17 of article III of the New York State Constitution to the extent that it grants an exclusive privilege and franchise to the American Arbitration Association. (Matter of Bott v Board of Educ., 41 NY2d 265; City of Amsterdam v Helsby, 37 NY2d 19; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493; Fox v Mohawk & Hudson Riv. Humane Soc., 165 NY 517; Economic Power & Constr. Co. v City of Buffalo, 195 NY 286; Matter of Mayor of N. Y. [Elm St], 246 NY 72; Thousand Is. Park Assn. v Tucker, 173 NY 203.) III. Section 3020-a of the Education Law, as amended by chapter 82 of the Laws of 1977, denies boards of education, their employees, taxpayers and students due process and equal protection of law. (Kinsella v Board of Educ., 378 F Supp 54, 402 F Supp 1155, 542 F2d 1165; Matter of Kinsella v Board of Educ., 64 AD2d 738; Hodgkins v Central School Dist. No. 1, 48 AD2d 302, 42 NY2d 807; Matter of Hodgkins v Central School Dist. No. 1, 50 AD2d 73, 41 NY2d 962; Matter of Polskin v Board of Educ., 49 AD2d 968, 40 NY2d 804; Figliomeni v Board of Educ., 38 NY2d 178; San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Levy, 38 NY2d 653; West Coast Hotel Co. v Parrish, 300 US 379;. Montgomery v Daniels, 38 NY2d 41; Board of Educ. v Nyquist, 94 Misc 2d 466.)
    
      Robert D. Clearfield and Paul E. Klein for respondents.
    I. Section 3020-a, as amended by chapter 82 of the Laws of 1977, does not violate section 15 of article III of the New York State Constitution in that it in no way constitutes a private or local bill. (Kerrigan v Force, 68 NY 381; People v O’Brien, 38 NY 193; Schuyler v South Mall Constructors, 32 AD2d 454; People ex rel. Lee v Board of Supervisors of County of Chautauqua, 43 NY 10.) II. The selection of the impartial chairman from the lists of the American Arbitration Association is not an exclusive franchise or privilege within the meaning of section 17 of article III. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Nassau Ins. Co. v McMorris, 41 NY2d 701; City of Amsterdam v Helsby, 37 NY2d 19; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493.) III. The amendments (L 1977, ch 82) to section 3020-a of the Education Law are not in any way violative of due process or equal protection. (Wiggins v Town of Somers, 4 NY2d 215; People v Scott, 26 NY2d 286; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Board of Regents v Roth, 408 US 564; Robinson v Hanrahan, 409 US 38; Bell v Burson, 402 US 535; Willner v Committee on Character, 373 US 96; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493.)
    
      Robert Abrams, Attorney-General (Shirley Adelson Siegel and John Q. Driscoll of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. In amending section 3020-a of the Education. Law to provide for binding arbitration of disciplinary charges against tenured teachers, the Legislature did not deprive appellants of any inherent right or authority under the Constitution of the State of New York or of the United States. (Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Matter of Harris v Mechanicville Cent. School Dist., 86 Misc 2d 144, 57 AD2d 231, 45 NY2d 279; Matter of Jerry v Board of Educ., 35 NY2d 534; Laird v Tatum, 408 US 1; United States v Raines, 362 US 17; Williams v Mayor, 289 US 36; Trenton v New Jersey, 262 US 182; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Cohoes City School Dist. v Cohoes Teachers’ Assn., 40 NY2d 774; Matter of Boyd v Collins, 11 NY2d 228.) II. The reference in the statute to a list of arbitrators maintained by the American Arbitration Association does not constitute an exclusive privilege or franchise. (Farrington v Pinckney, 1 NY2d 74; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Lanza v Wagner, 11 NY2d 317; Economic Power & Constr. Co. v City of Buffalo, 195 NY 286.)
   OPINION OF THE COURT

Per Curiam.

The issue in this case is the constitutionality of section 3020-a of the Education Law as amended by chapter 82 of the Laws of 1977. That amendment requires that the chairman of a panel hearing charges against a tenured person be chosen from a list furnished by the American Arbitration Association. Petitioners predicate their constitutional challenge on the contentions that the amendment to the bill which became chapter 82 embraced more than one. subject and was a private bill granting an exclusive franchise.

It has been settled since at least Matter of Lakeland Water Dist. v Onondaga County Water Auth. (24 NY2d 400) that an article 78 proceeding may not be used to test the constitutionality of a legislative enactment, as distinct from the constitutionality of its application (accord Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184). The matter should have been converted to a declaratory judgment action, therefore, all necessary parties, including the Attorney-General, being before the court. We now convert it.

Equally well settled is it that the factual data on which, a claim of unconstitutionality is based is to be presented as evidence to the trial court not as addenda to the briefs submitted in this court, the more particularly not in a reply brief which respondent then has no opportunity to refute. While judicial notice may be taken of some official documents by appellate courts, it is simply improper to make wholesale presentation of factual data through the medium of addenda to a brief. However, the only improper factual material essential to petitioners’ arguments is that the American Arbitration Association receives some pay for what it does under the statute under attack. Rather than remit for trial, with consequent waste of judicial resources, we deal with the constitutionality issues as though the facts relating to payment were properly before us.

Preliminarily we note that, contrary to the Attorney-General’s argument, the individual petitioners (plaintiffs), though not the board, have standing to sue because, if in fact the statute is unconstitutional, they can be removed for knowingly participating in an arbitration before a panel unconstitutionally selected (Board of Educ. v Allen, 20 NY2d 109, 115, n 1, 118).

Coming then to the merits of the appeal, we note our agreement with the reasoning upon which the Appellate Division concluded that there is no substance to the equal protection and due process challenges, and limit our discussion to the contentions that section 3020-a violates the prohibitions of the New York State Constitution against a private bill embracing more than one subject (art III, § 15) and against a private bill granting "any exclusive privilege, immunity or franchise whatever” (art III, § 17).

Both arguments were deemed inconsequential by the Appellate Division, which did not, however, state its reasons for that conclusion. Simply put, the reason petitioners’ attack cannot succeed is that chapter 82 of the Laws of 1977, which enacted section 3020-a, was not a private bill. As its title indicated it was "An Act to amend the education law, in relation to hearing procedures for certain teachers.” What it did was to revise the procedure for the hearing of charges against a person enjoying the benefits of tenure, a procedure applicable to school districts and teachers throughout the State. It was, therefore, quite clearly a general law, not a private or local law (see Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358).

The section establishes a tripartite hearing panel, one to be chosen by the employee and one to be chosen by the employing board from a list maintained for that purpose ■ by the Commissioner of Education. The third member is then chosen, from a list supplied by the American Arbitration Association, by mutual agreement of the two appointed members or, if they cannot agree, by the Commissioner of Education.

Thus the only part played by the Arbitration Association is to prepare a list of qualified persons from which a panel chairman can be selected by others than the association. That, as petitioners’ "evidence” shows, the association has received reimbursement of $500 for its administrative expenses in preparing the list, or that a person from its list is to be compensated at the rates usually paid him for his services as an arbiter for the association does not make the law the grant of an exclusive franchise to the association or a private bill. The commissioner’s list from which the employee and employer members are drawn is composed of professionals in teaching or members of school boards, who cannot be expected to be experienced at running panel hearings. The Arbitration Association list, on the other hand, will be by reason of its source composed of persons with such experience.

Thus, rather than granting the association an exclusive franchise, the association prepares, as a service to the Department of Education for which it is reimbursed only for its administrative expenses, a list of nominees. Appointment from that list, however, is not by the association, but by the employer and employee panel members, or by the commissioner.

To paraphrase what we said in Lanza v Wagner (11 NY2d 317, 333) we perceive no constitutional bar to the legislative designation of the association as a nominating body, who can reasonably be expected to present to the commissioner, on an objective and nonpartisan basis, the names of individuals exceptionally qualified by prior service in the field of adversarial hearings for service as chairman of a hearing panel under section 3020-a.

For the foregoing reasons, the judgment of the Appellate Division should be modified to convert so much of the article 78 proceeding as sought a declaration of unconstitutionality to a declaratory judgment action and remitted for the entry of judgment declaring section 3020-a of the Education Law constitutional, and, as so modified, should be affirmed. As to the board the action should be dismissed for lack of standing.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Judgment modified, with costs to respondents, and the matter remitted to Supreme Court, Allegany County, for the entry of judgment in accordance with the opinion herein and, as so modified, affirmed.  