Appellate Court Hears Kemper Case

by Joan R. Simon

(November 30, 2005) The two sides of the Kemper Memorial Park controversy met in the Appellate Division of the State Supreme Court in Brooklyn on Monday, November 28 to present their cases in the continuing legal battle between the Mamaroneck School District and the Kemper family and its supporters, many of whom came by bus and train to attend the hearing. This is the latest chapter in the long-running debate between the school district, which wants to move a portion of the Richard M. Kemper Memorial Park to make way for an additional athletic field, and the Kemper family and their supporters, who want to maintain the park as a World War II memorial in its current location and configuration. (See: School Board Will Appeal Over Right to Modify Kemper Park.)

In January 2005, NY Supreme Court Justice Orazio R. Bellantoni ruled that the Mamaroneck School District was prohibited from implementing the proposed move and reconfiguration of the memorial park. The decree also granted legal standing to Richard Cantor, grandson of Adolph and Helen Kemper, who donated the park to the school district. (See: Judge Rules: Kemper Park Changes Prohibited)

The current appeal, which was filed by the school district following Justice Bellantoni’s decision, was supported by the New York Attorney General, who is the “statutory representative of ultimate charitable beneficiaries” under New York State law. As they did in the initial law suit, the Attorney General’s office questioned Richard Cantor’s legal standing in the case and also supported the school district’s interpretation of the deed.

Jan Northrup, president of the Kemper Memorial Park Preservation Fund, expressed disappointment in the Attorney General’s position at the hearing. "Frankly, I was appalled at the Attorney General's office," she remarked. "It claims that it is the only one that has standing on this issue, yet it is also saying that the school district's proposal is okay and the donor's intent is being met." She added, "In 1945 and 1946, the donor and the School Board agreed in writing that the school district would be the 'guardian angel' of the Memorial Park. Likewise, the Attorney General's office is the 'protector of donations.' Both have completely reneged on their responsibilities and by so doing have put all donations at risk."

The Mamaroneck Board of Education issued a statement following the hearing which said: “We appreciate that the New York State Attorney General, who is charged with enforcing charitable donations, supports the district's right to make these changes.” School Board Vice President Cecilia Absher, who attended the    appellate hearing along with other board members, commented, “We were pleased with how our case was presented and  felt the judges asked thoughtful questions   showing they understood the issues well.” She observed that the court focused a number of their questions on the issue of whether Richard Cantor had legal standing to bring the case and what uses of the property would serve as a memorial.

Several local news channels and radio stations were on hand to cover the story and record the reaction of those at the hearing, including many who showed up on two buses rented by Kemper supporters. Ms. Northrup noted, “the veterans coming out of the court house were mad as hornets” after hearing the Attorney General’s position on the case.

Paul Rooney, a lawyer at Reed Smith LLP who argued the case for the Kemper family, described the questions as “tough,” but said “you can’t really read into questions” how the judges will decide. If the 4-member panel splits its vote, the Kemper side will win because of the lower court’s earlier decision in their favor. Regardless of the outcome, it is likely that the case will be appealed to the next level, the Court of Appeals, which is the highest court in New York State. While there is no set date for a ruling, a decision is expected within the next few months.

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