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By E.J. McMahon
LAST week's appeals-court ruling in the Campaign for Fiscal Equity (CFE) case leaves a murky picture even murkier. This is what happens when courts meddle where they don't belong.
Nearly three years ago, after a decade of CFE litigation, New York state's highest court embraced the fanciful notion that more spending will assure a "sound, basic education" for every kid in New York City schools, that legal proceedings can reveal the magical sum that will satisfy the state constitution on this point - and that CFE trial judge Leland DeGrasse is just the guy to make sure it all happens. Yet the court also said it had "neither the authority, nor the ability, nor the will, to micromanage education financing."
Justice DeGrasse isn't nearly so reluctant to dictate details. Last year, he basically rubber-stamped the plaintiffs' demands, ruling that city schools should receive a budget-busting $5.63 billion in operating aid over four years and $9.2 billion for capital projects over five year. And Gov. Pataki surprised no one when he appealed, on the sensible grounds that DeGrasse had been needlessly excessive.
All of which culminated last week in a 3-2 Appellate Division decision so poorly drafted, so mind-blowingly muddled, that it left both sides declaring victory.
In his majority opinion, Presiding Justice John Buckley tacitly agreed with DeGrasse's capital-spending target - a downpayment on which the Legislature is about to approve anyway. But when it came to operating expenditures, the Appellate Division refused to join the trial judge in dictating a specific number. Rather, the court said a range of $4.7 billion to $5.6 billion in increased funding would be constitutionally acceptable.
Not by coincidence, $4.7 billion happens to be precisely the value of the package Pataki rolled out two years ago. The 2005-06 budget fully funded the first year of that plan, while the second stage is included in the governor's proposed budget for 2006-07, which the Legislature is already in the process of vastly inflating.
And (despite claims to the contrary by CFE, parroted in much of the next-day news coverage) the court did not order the state to immediately raise operating aid to city schools by at least $4.7 billion. Rather Buckley said the added operating funds should be "phased in over four years" - right on Pataki's current schedule.
This explains why Pataki's reaction to the ruling was positive. So why are the CFE forces calling it a win? Their hopes ultimately rest on the second full sentence of Buckley's opinion: "We hold that the State, in enacting a budget for the fiscal year commencing April 1, 2006, must appropriate the constitutionally required funding for the New York City schools."
Interpreted very broadly, this seemingly goes well beyond DeGrasse's original ruling to imply that Albany must supply the entire operating aid increase - since the state can only "appropriate" its own funds. Seizing on this point at a sensitive time in election-year budget negotiations, CFE obviously hopes to stampede the Legislature and public opinion into misreading the ruling as a full-blown ratification of DeGrasse's original order.
Yet the order can also be interpreted to mean that the state simply should provide a share of that funding, as Pataki and the Legislature have always assumed. After all, the original Court of Appeals decision on which this case is based explicitly stated that the distribution of the cost burden is a matter "for the Legislature" to determine.
More confusion comes from the tortuously worded wrapup to Buckley's opinion, which said DeGrasse's order "should be modified" to "direct" the governor and the Legislature to "consider" adding between $4.7 billion and $5.6 billion to the operating budget for city schools, "and that they appropriate such amount . . . [and] implement a capital-improvement plan that expends $9.179 billion over the next five years or otherwise satisfies the City schools' constitutionally recognized capital needs."
Buckley's assumption that the court can or should "direct" the Legislature on a budgetary matter represents a potentially radical shift in the balance of power between the judiciary and the other two branches of state government. As Professor David Schoenbrod of New York Law School points out, "only the Legislature can appropriate money" under the state Constitution. "The legislators cannot be made parties to the case because of legislative immunity," Schoenbrod wrote last year in an analysis for the Empire Center. "In other words, [the courts] cannot enforce their order against the state Legislature."
As dissenting judges at earlier stages in this case have pointed out, the CFE lawsuit is designed to spawn "limitless litigation" by subjecting New York's statewide school-aid formula to perpetual second-guessing by the courts. That goal is now well within the plaintiffs' reach. With his gift for ambiguity, Judge Buckley has done his part to ensure that all the lawyers involved in this case will be busy for years to come.
E.J. McMahon is director of the Manhattan Institute's Empire Center for New York State Policy.
©2006 New York Post
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