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The Biggerstaff Law
Firm, L.L.P.
Robert E.
Biggerstaff, Partner March 10, 2006 Via Facsimile and Mail (518-581-0270) Re: NYS Association of Small City School Districts v. State of New York Index No. 1711-05 Dear Judge McNamara: The following is a letter brief responding to issues raised in the Attorney General’s Reply Memorandum of Law and Attorney’s Affirmation submitted in connection with its Motion to Dismiss. Attorney General’s Reply Memorandum of Law 1. Contrary to the assertions of the Attorney General on page 2 in the Preliminary Statement, the Amended Complaint does not make only ‘substantively insignificant changes.’ The Amended Complaint contains detailed allegations of educational inadequacies, which are identical to those asserted by the plaintiffs and sustained by the Court of Appeals in Campaign for Fiscal Equity, 86 N.Y.2d 307 (1995). Moreover, ¶¶ 33 through 36 of the Amended Complaint contain 24 separate allegations of inadequate educational inputs and outputs and are asserted on behalf of each of the 18 of the small city school districts involved in this action. The Attorney General is attempting to raise an issue which elevates form over substance. Satisfaction of this objection would require unnecessary repetition and would result in an Amended Complaint with 72 separate paragraphs instead of 4 and 432 separate assertions of inadequacies instead of 24.
2. Contrary to the assertions of the Attorney General in Point I, citizens are not stripped of their right to sue the State as citizen-taxpayers under State Finance Law Section 123(b) when they become members of boards of education. The quote from City of New York v. State of New York, [86 N.Y.2d 286 (1995), citing Black Riv. Regulating Dist. v. Adirondack League Club, 307 N.Y. 475, at 489 ( 1954)] has been taken out of context and, as such, has been misinterpreted. The Court of Appeals said, in introducing the quote used by the Attorney General, “Municipal officials and members of municipal administrative or legislative boards suffer the same lack of capacity to sue the State as the municipal corporate bodies they represent (City of New York, supra at 291).” This preamble shows that the Court was referring to officials or members of boards in their public or official capacity, not as persons suing under the State Finance Law in their private status as citizen-taxpayers. We respectfully submit that Citizens for Yonkers is in error as it misconstrues the holding in City of New York, as discussed above. Furthermore, the Court’s decision in Citizens for Yonkers does not enter into a discussion of the issue of whether a person who is also a member of a board of education has the capacity to sue the State in his or her status as a private citizen, but merely cites City of New York for the Court’s bald conclusion. (Citizens for Yonkers, et al. v. State of New York, Index No. 08850/05, decision of Lefkowitz, J., Sup. Ct. Westchester Co. dated October 25, 2005, attached to Attorney General’s Attorney’s Affirmation as Exhibit 2).
3. The Reply Memorandum of Law, Point I, also misstates the issue of the Association of Small City School Districts’ capacity to sue. The cases cited deal with standing, not capacity to sue, thus the cases are not applicable. Although they are related concepts, standing and capacity are distinct issues. In fact, the capacity of corporations to sue and be sued is enshrined in the State Constitution and should not be in question here (N.Y.S. Constitution Art. X, § 4). Moreover, even if objections to standing were properly raised, which they are not, the Association clearly meets the three part test (one or more members of the association have standing, the interests asserted are germane to the association’s purposes, and the claim and the requested relief do not require participation of the members). Soc'y of Plastics Indus. v. County of Suffolk, 77 N.Y. 2d 761, 775 (1991).
4. As to Point II of the Reply Memorandum, we agree that State Finance Law Article 7-A provides for standing, not a cause of action for citizen-taxpayers. The citizen-taxpayer plaintiffs at bar have a cause of action independent of State Finance Law: the State’s violation of Article XI, ¶ 1 of the New York State Constitution. Additionally, the cases cited in the Reply Memorandum of Law do not support the argument that State Finance Law Article 7-A cannot be used to provide standing in this case. The quote taken from Fisher v. Biderman, 154 A.D.2d 155,159 (1st Dept.1990), lv. denied, 76 N.Y.2d 702 (1990), is a discussion of General Municipal Law § 51, which has not been raised here. The other case cited, Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003), cert. denied 540 U.S. 1017 (2203), does not state that standing will be denied when a requested relief involves an increase in budgetary appropriations. The Court in that case said “plaintiff’s claims must have a ‘sufficient nexus to fiscal activities of the State’ in order to confer standing.” The claim asserted by plaintiffs is not merely that “State funds are not being spent wisely” but that the State’s educational spending scheme violates a constitutional mandate. In Saratoga County Chamber of Commerce, the Court, in granting standing, explicitly gave weight to the existence of important constitutional issues. Id. See also, Schultz v. N.Y. State Executive et al., 92 N.Y.2d 1 (1998).
5. Point III of the Reply Memorandum of Law asserts that the N.Y.S. Constitution places the responsibility for maintaining a system of free common schools upon the Legislature. Nevertheless, the Attorney General makes the apparently anomalous statement that the Legislators are immune from being sued for legislative determinations and that this includes the Governor. Apparently, under the Attorney General’s theory no one is responsible for violations of the Education Article of the State Constitution. It should be noted, however, that the cases cited by the Attorney General relate to Legislators and to the Governor only in exercise of their legislative duties. Warden v. Pataki, 35 F.Supp.2d 354 (SDNY 1999), is inapposite here because it relates to an obscure administrative issue of appointment of members of NYC Common Board members over which the Governor has no responsibilities. Matter of Sierra Club v. Palisades Interstate Park Comm., 99 A.D.2d 548 (2d Dept. 1984) app. den. 63 N.y.2d 604 (1984) is also inapposite in that this case involves a gross pleading error and failure to assert some cause of action other than violation of State Finance law §123, which is not the case here. Therefore, it is clear that the Attorney General, in effect, concedes that the Governor is not immune to suits based upon his role as chief executive of State Government (see, infra paragraph 6).
6. Likewise, Point IV is in error in asserting that the Commissioner of the Department of Taxation and Finance is not a proper party to this action. Under the State Constitution and the Tax Law, the Commissioner is the joint custodian of the State Treasury into and out of which all state, local and federal revenues flow, including the more than $15 billion in state education aid given to public school districts each year (State Finance L.§ 7 and Tax Law ¶ 171 (14th and 25th)). The Commissioner is, in effect, the custodian of the State’s checkbook and is a most appropriate party to be joined in this case. Moreover, the Governor is responsible for the State Board of Equalization and Assessment and the Office of Real Property Services (ORPS), agencies which provide numerous services to school districts including establishment of equalization rates which are an essential element to the levying of the more than $15 billion in local school taxes (Real Property Tax L.§§200 and 201). The Governor, through ORPS, also administers the STAR program which returns over $3 billion in state aid to local school tax payers as school tax relief and which, in effect, is a form of school aid (Real Property Tax L.§ 425). The Commissioner, and the Governor who appoints the Commissioner and at whose pleasure he/she serves, are appropriate parties to this action. In fact the Attorney General’s original Memorandum of Law filed with the notice of motion commanded that the Governor and the Commissioner must be joined as parties (see, AG Memo of Law, dated June 16, 2005, fn. 3, p. 6).
7. Point V of the Reply Memorandum of Law asserts that plaintiffs’ Amended Complaint is defective in that it alleges and is based upon unequal treatment and therefore raises an Equal Protection claim, which claim has already been denied under Levittown Union Free School District v. Nyquist, 57 N.Y.2d 27 (1982). The Attorney General repeatedly has made this assertion and bases it upon statements made in the Amended Complaint comparing plaintiffs’ districts to the average district or to non-city districts. First, it is clear upon even a cursory reading of the Amended Complaint that it does not make an Equal Protection claim but instead makes a claim founded on Article XI, §1 of the State Constitution (see, Am. Com. §§2-4, 29-36, 45-48, 50, 52, 55, 58, 60 and Prayer for Relief §§1-3 ). Second , it is also clear that the definition of a ‘sound basic education’ cannot be determined in the abstract, but requires a reference point or bench mark against which to measure educational inputs and outputs at plaintiffs’ districts. The Levittown case makes this evident by its reference to ‘gross and glaring inadequacy’ which is necessary to sustain an Article XI claim (see, Levittown, supra at 48). Moreover, the Amended Complaint refers not only to the average district but also to the New York City School District, which has been determined in Campaign for Fiscal Equity v. State of New York, 100 N.Y.2d 893 (2003) to be in violation of Article XI and is in effect a benchmark for the meaning of a sound basic education (see, Am. Com.§§4, 35b and 36i). Additionally, discussion of relative state funding of school districts is necessary to show that this violation has been caused by the State’s defective educational funding scheme. Finally, it should be noted that the allegations of the Amended Complaint are very similar to those of the complaint sustained as sufficient by the Court of Appeals in Campaign for Fiscal Equity (supra, 100 N.Y. 2d 893).
8. Under Point V, the Attorney General also states that the Amended Complaint fails to state a cause of action by virtue of its failure to satisfy the ‘rigorous pleading’ required by the Court of Appeals. In response to this the Court is respectfully referred to paragraph 1, above. In addition, neither Paynter v. State of New York, 100 N.Y.2d 434 (2003) nor NYCLU v. State of New York, 4 N.Y.3d 175 (2005), cases cited by the Attorney General, are relevant here. The plaintiffs in the Paynter case did not allege a failure of educational funding. That case was based upon the claim that racial isolation was the cause of low educational performance. The Court of Appeals held that such a claim was not sustainable under Article XI. The plaintiffs in the NYCLU case were unsuccessful because they failed to assert district-wide failure and failed to be specific about the relief requested. Neither case is helpful here. The Attorney General asserts at page 11 of its Memorandum of Law that plaintiffs here have avoided pleading specific educational deficiencies by claiming that the State should undertake an evaluation of whether all children receive a sound basic education and cites the Amended Complaint, ¶2. The Attorney General has completely misstated the meaning of paragraph 2 which simply sets forth the template established by the Court of Appeals in its two Campaign for Fiscal Equity decisions. The Attorney General also has completely ignored the very detailed and specific allegations of educational deficiencies made in ¶¶ 33-36 of the Amended Complaint and the very clear and explicit linkage between those deficiencies and inadequate State funding made in ¶¶ 45-60 of the Amended Complaint. There is, therefore, no basis for attempting to apply the decision in the NYCLU case to this motion. The Amended Complaint clearly alleges the lack of adequate educational inputs and outputs in each of the plaintiffs’ 18 districts, is detailed about what those inadequacies are and links those inadequacies directly to the lack of sufficient State funding. The Amended Complaint faithfully follows the path set by the Court of Appeals in Campaign for Fiscal Equity and leaves no doubt about the remedy needed to correct those inadequacies.
For the reasons set forth herein and in the Plaintiffs’ Memorandum of Law and Affirmation in Opposition, the Attorney General’s Motion to Dismiss should be denied in its entirety.
Respectfully submitted,
Robert E. Biggerstaff
Cc: Jane Conrad, esq. via facsimile and mail (585-327-3242) |
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