July 2006 Vol. XX, No. 7

LITIGATION UPDATE - DECISION ON MOTION TO DISMISS

We are in receipt of the decision of Judge McNamara granting the State's motion to dismiss the complaint. The decision grants the State's motion primarily on two bases, both of which are procedural in nature and do not deal with the merits of the case. In our opinion, the Court has incorrectly decided this motion and has failed to understand the applicable law and to interpret the pleadings correctly.

First, the Judge has determined that the members of the boards of education do not have the standing or capacity to sue as board members on behalf of their districts or, individually, as taxpayers.

Second, the Judge found that the prior Court of Appeals decisions, the NYCLU case and the Paynter case, require district by district allegations of educational deficits. The first basis for the decision is founded upon an overly technical reading of the State Finance Law governing taxpayer suits. The second basis is also founded upon an interpretation of recent Court of Appeals cases that is without precedent and would require us to expand the 35 separate allegations of educational failures already contained in the complaint into 630 allegations. This decision elevates 'form above substance' and reaches conclusions the Court of Appeals never intended.

The decision also found that the Association had neither standing nor capacity to sue and was not a proper party to the action. This, we believe, was based upon the Court's apparent confusion between the concepts of standing to sue and capacity to sue. Standing to sue is based upon whether the party has been actually injured. Capacity to sue is based upon a party having been granted authority to sue, for example, by statute. They are separate and distinct legal concepts and the Court misapplied the cases it cited in support.

We believe we have good grounds for appeal. While an appeal on these procedural issues would give the State what it is seeking, i.e. as much delay as possible to avoid reaching the substantive issues in the case, we do believe that the issues raised are significant and that delay caused by the appellate process (appeal to the Appellate Division and, perhaps, to the Court of Appeals) would extend the case well into next year, when a change in the administration, among other things, may bring a changed and more receptive environment in Albany.  

The CFE case was subject to numerous motions and appeals throughout the last decade before it obtained a trial on the merits. Given the State's strategy of delay, it is no surprise that this case is taking a tortuous path. 

NOTES FROM THE LITIGATION STEERING COMMITTEE

The Association’s Litigation Steering Committee met by phone on Tuesday, July 11^th  to discuss Judge McNamara’s decision and to decide what steps to take next. The following was agreed upon:

1. the decision should be appealed and that the appeal should be prosecuted as expeditiously as possible;
   
    
2. work on amending the complaint should begin so that we will be in a position to re-file the case if needed. PLEASE NOTE: amending the complaint will require the addition of students and parents as plaintiffs for districts other than Albany, Beacon, Newburgh and Jamestown. It will also require completion of the litigation survey for those districts which did not submit the survey last year. We will be in touch with those districts to coordinate this effort;
   
    
3. a press release should be issued immediately – PLEASE NOTE: our office issued the press release on July 11^th. You may be contacted by your local media. Call us if you have any questions about how to respond See the press release included below;   .
    
4. the Association would collaborate with Alliance for Quality Education (AQE) on several statewide/simultaneous press conferences in September, publicizing the small city school district case and the need for statewide education finance reform; 
   
    
5. litigation dues for 2006-07 would be kept at last year's level of $5,000 for plaintiff districts and $1,000 for supporting districts. PLEASE NOTE: This level of funding should cover the appeal to the Appellate Division, Third Department, of Judge McNamara's decision, work to amend the complaint and a study of the eighteen plaintiff districts necessary to support our case;
    
6. and, the Steering Committee would meet again on November 27, 2006 at 10:00 am, before the regular Board meeting and meeting with Commissioner Mills scheduled on the same day, for the purpose of reviewing litigation status and any additional funding that may be necessary.

Thanks to the committee for an excellent meeting.

July 11, 2006
PRESS RELEASE

Below is the press release issued by the Association on July 11^th regarding the recent decision by Judge McNamara on the State’s Motion to Dismiss the Association’s suit.

END OF SESSION LEGISLATIVE HIGHLIGHTS

Below is a list of bills of interest for the Association. Please note that those bills that read either “returned to Assembly” or “returned to Senate” mean that the bill was passed in both Houses. Also note that action reported in ALL CAPS indicate movement in the Senate and action reported in all lower case indicate movement in the Assembly.

Please feel free to contact our office with any questions or concerns.

UPCOMING
EVENTS

October 27, 2006
7:30am – 9:00am
Breakfast
NYSSBA Conference
NYC

November 2006
TBA
Seminar: Positioning Your District Budget for Contingency (tentative)

November 27, 2006
Time TBD
Litigation Steering Committee Meeting
Fort Orange Club
Albany

November 27, 2006
10:30 am – 12:00 pm
Board of Directors Meeting
Fort Orange Club
Albany

November 27, 2006
1:00 pm
Meeting with Commissioner Richard Mills
SED

January 21, 2007
Time TBA
Board of Directors Meeting
Desmond Hotel at NYSCOSS mid winter meeting