SUPREME COURT STATE OF NEW YORK

COUNTY OF ALBANY

NEW YORK STATE UNITED TEACHERS by its President RICHARD IANNUZZI, NAOMI AVERY, SETH COHEN, TIMOTHY MICHAEL EHLERS, KATHLEEN TOBIN FLUSSER, MICHAEL LILLIS, ROBERT PEARL as a Parent, Individually and on behalf of his children KYLEIGH PEARL, MICHAELA PEARL AVA PEARL, and NOLAN PEARL, BRIAN PICKFORD, HILARY STRONG as a Parent, Individually and on behalf of her child KEVIN STRONG, Plaintiffs, -againstThe STATE OF NEW YORK, ANDREW M. CUOMO as Governor of the State of New York, THOMAS P. DiNAPOLI as Comptroller of the State of New York, and JOHN B. KING, JR., as Commissioner of the New York State Education Department, Defendants,

Index No. 963-13

_______________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7)

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants State of New York, Andrew M. Cuomo, Thomas P. DiNapoli, and John B. King The Capitol Albany, New York 12224 Stephen M. Kerwin Michael G. McCartin Laura Sprague Assistant Attorneys General, Of Counsel

TABLE OF CONTENTS

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. THE COMPLAINT IN THIS DECLARATORY JUDGMENT ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. THE PARTIES TOTHIS DECLARATORY JUDGMENT ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. THE ALLEGATIONS IN THE COMPLAINT. . . . . . . . . . . 5 3. PROCEDURAL POSTURE. . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. CPLR 3211(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. PLAINTIFFS' BURDEN OF PROOF. . . . . . . . . . . . . . . . . . 6 POINT I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PLAINTIFF'S LACK STANDING TO RAISE ALL CLAIMS, EXCEPT TO THE EXTENT THAT THE INDIVIDUAL PLAINTIFFS HAVE ALLEGED ISSUES OF VOTE DILUTION IN THEIR CAPACITY AS VOTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STANDING: GENERAL REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . CITIZEN/TAXPAYER STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . VOTER STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TEACHER STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ASSOCIATIONAL/ORGANIZATIONAL STANDING . . . . . . . . . . . . PARENTS' STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PARENTS' STANDING-ON THEIR OWN BEHALF. . . . . . . . . . . . . . PARENTS' STANDING-ON BEHALF OF STUDENTS. . . . . . . . . . . . STANDING TO ASSERT "RIGHTS OF SCHOOL BOARDS". . . . . . 10 11 14 16 16 18 18 19 19

ARTICLE XI CLAIMS IN PLAINTIFFS FIRST AND SECOND CAUSES OF ACTION

POINT II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 PLAINTIFFS' EDUCATION ARTICLE CLAIMS ARE WITHOUT LEGAL FOUNDATION AND SHOULD BE DISMISSED . . . . . . . . . 21 1. ARTICLE XI 1 DOES NOT CREATE A RIGHT OF ACTION SEEKING EQUAL RESOURCES, NOR DOES IT CREATE A RIGHT OF ACTION TO CHALLENGE STATE LAWS GOVERNING THE NATURE, EXTENT, AND MANNER IN WHICH LOCAL SCHOOL DISTRICTS CAN FUND AND DELIVER EDUCATIONAL SERVICES IN ITS PUBLIC SCHOOLS.. . . . . . . ..22 2. EVEN ASSUMING THERE IS A CONSTITUTIONAL INTEREST IN LOCAL CONTROL OF EDUCTION, THE PLAINTIFFS HAVE NOT DEMONSTRATED THAT IT HAS BEEN VIOLATED BY THE TAX CAP LAW. . . . . . . 27 (i) PLAINTIFFS' ASSERTION THAT EDUCATION LAW 2023-a LOCKS IN AND EXPANDS EXISTING FUNDING DISPARTIES BETWEEN DISTRICTS BASED ON THE WEALTH OF THOSE DISTRICTS IS INACCURATE. . . 28 (ii) EDUCATION LAW 2023-a's BALLOT NOTICE DOES NOT PREVENT LOCAL BOARDS AND TAX PAYERS FROM SEEKING TAX LEVIES IN EXCESS OF THE STATUTE'S THRESHOLD. . . . . . . . . . . . . . . . . . . . . . . . . . 29 (iii) EDUCATION LAW 2023-a's REQUIREMENT THAT THAT A BUDGET SEEKING TO EXCEED THE STATUTE'S THRESHOLD BE APPROVED BY 60% OF VOTERS DOES NOT SIGNIFICANTLY DIMINISH LOCAL CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 (iv) PLAINTIFFS' CLAIM THAT EDUCATION LAW 2023-a IMPOSES ADVERSE CONSEQUENCES ON ON A DISTRICT WHICH TRIES AND FAILS TO EXCEED THE STATUTE'S THRESHOLD IS UNFOUNDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3. EDUCATION LAW SECTION 2023-a ENCOMPASSES MANY EXCLUSIONS AND AMELIORATIVE FEATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

ii

EQUAL PROTECTION CLAIMS IN PLAINTIFFS' FIRST, THIRD FOURTH AND SIXTH CAUSES OF ACTION
POINT III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 THE EQUAL PROTECTION CLAIMS IN THE FIRST AND THIRD CAUSES OF ACTION MERITLESS AND SHOULD BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 A. THE FIRST CAUSE OF ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . 36 B. THE THIRD CASUE OF ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . 37 POINT IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 PLAINTIFFS' EQUAL PROTECTION CLAIMS IN THEIR FOURTH AND SIXTH CAUSES OF ACTION FAIL AS A MATTER OF LAW BECAUSE SUCH CLAIMS WERE PREVIOUSLY REJECTED BY THE U.S. SUPREME COURT IN GORDON V. LANCE, 403 U.S. 1 (1971), AND BRENNER V. SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, 403 U.S. 913 (1971). . . . . . . . . . . . . . . . .39

RIGHT TO VOTE AND RIGHT TO FREE EXPRESSION IN PLAINTIFF'S FIFTH AND SEVENTH CAUSES OF ACTION
POINT V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

PLAINTIFFS' FIFTH CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE EDUCATION LAW 2023-a DOES NOT VIOLATE PLAINTIFFS' RIGHT TO VOTE. . . . . . . . . . . . . . . . . . . . . . .49 POINT VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 SINCE THE BALLOT STATEMENT REQUIRED BY EDUCATION LAW 2023-a [6](b) ADVANCES THE STATE'S LEGITIMATE GOAL OF FOSTERING AN INFORMED ELECTORATE, AND SINCE THE SUPERMAJORITY REQUIREMENT DOES NOT VIOLATE PLAINTIFFS' RIGHT TO FREEDOM OF EXPRESSION, PLAINTIFFS' SEVENTH CAUSE OF ACTION MUST BE DISMISSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

iii

POINT VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64

THE GOVERNOR, COMPTROLLER AND EDUCATION COMMISSIONER ARE NOT PROPER DEFENDANTS AND THE COMPLAINT SHOULD BE DISMISSED AS TO THEM..64 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

iv

PRELIMINARY STATEMENT Property taxes in New York have exploded in recent years, more than quadrupling from 1982 to 2009.1 Outside of New York City such taxes have risen from $6.78 billion to $29.97 billion in that period.2 The States concern over the dampening effect that this ever-mounting tax burden has on business activity in the State is beyond dispute. Also beyond dispute is the deleterious effect this tax burden has on property owners in the State, some of whom face the prospect of being unable to afford to live in their own homes any longer. In the face of this crisis the New York Legislature passed, and the Governor signed into law, Chapter 97 of the Laws of 2011 (referred to in the Complaint as the tax cap). By this law, which applies to all counties (except those within New York City), cities (except New York City), towns, villages and fire districts, certain special districts, and all schools districts (except those in New York City, Buffalo, Rochester, Syracuse and Yonkers which are dependent on the cities for their revenue), governmental entities seeking to levy taxes in excess of the allowable tax levy limit must obtain the approval of at least 60% of a local governments governing body or, in the case of a school district, the district voters. Although often referred to as a tax cap, the law actually establishes a threshold beyond which the entity must engage in certain procedures to adopt a budget that will require a tax levy that exceeds the allowable tax levy limit. In the case of a school district, in order to adopt a budget that exceeds the tax levy limit, it must give notice to the voters that the proposed budget requires a tax levy that exceeds the tax cap, it must receive approval of at least 60% of the voters, and, in the event that the school districts proposed budget is not approved by the voters, it may be required to adopt a budget that requires

1
2

See http://www.tax.ny.gov/pit/property/learn/proptax.htm. Id.

a tax levy no greater than the tax that was levied for the prior school year. Chapter 97 does not prevent increases in tax levies above the allowable tax levy limit. It provides for additional steps to be taken in order to do so. In this declaratory judgment action, Education Law 2023-a, which codifies these procedural requirements when school districts seek to raise taxes above the tax cap, is challenged by a teachers union, and individuals who are residents, voters, taxpayers, and parents of school-aged children, and some of whom are teachers in school districts covered by the law. They contend that the law violates the Education Article (Article XI) of the State Constitution, as well as the Equal Protection clauses of the Federal and State Constitutions, the rights to free speech, and to vote, under both Constitutions. They sue the State of New York, its Governor, its Comptroller, and the Commissioner of Education (the latter three inappropriately), seeking a declaration that Education Law 2023-a is unconstitutional. To do so, they must first establish that they have standing to bring this challenge. In the unlikely event that they surmount that hurdle, they must establish beyond a reasonable doubt that the statute violates the Constitutions. In their effort, they must overcome the presumption of constitutionality afforded to all legislative enactments; and, above all, they must distinguish their cause from numerous legal precedents which support the constitutionality of the statute. Because the plaintiffs cannot overcome these obstacles, the defendants ask the Court to dismiss this action in its entirety, and to declare the statute constitutional. STATEMENT OF FACTS Education Law 2023-a was enacted as part of Chapter 97 of the Laws of 2011. In pertinent part, that chapter amended the Education Law by adding 2023-a, and the General Municipal Law by adding 3-c. Both statutes create procedures by which local governments

and school districts3 can increase their annual tax levies in excess of the allowable tax levy limit. Education Law 2023-a[1], [2][a] and [i], and [3]; and General Municipal Law 3-c[1], [2][a], [g], [3]. Both statutes include exclusions from tax levies,4 thus decreasing the possibility that the new procedures will apply. Education Law 2023-a[2][i]; and General Municipal Law 3c[2][g]. The statutes also include carry-over provisions: to the extent that the tax levy for the prior fiscal or school year was less than that allowed by the statutes, the amount of the difference, within limits, can be added to the succeeding fiscal or school years tax levy limit. Education Law 2023-a [2][b] and [3][a][7]; and General Municipal Law 3-c[2][b] and [3][c][vii]. Both statutes also take into account property improvements and expansions in the governmental entities to which they apply, which can increase, but not decrease, the tax levy limit. Education Law 2023-a[2-a], and [3][a][2]; and General Municipal Law 3-c[3][b], [c][ii]. Both statutes allow the governmental entities to which they apply to enact budgets which exceed the tax levy limit threshold. Education Law 2023-a[6]; and General Municipal Law 3-c[5]. Both statutes permit this if, in the case of a local government, the governing body or, in the case of a school district, the district voters approve exceeding the tax levy limit by a 60% or greater supermajority. Id.; see also Education Law 1608, 1716, 1804, 1906 and 2601-a; see http://www.osc.state.ny.us/localgov/pubs/releases/LocalBudgetGuide2010.pdf, page 3. When a school district seeks to enact a budget which exceeds the statutes threshold, the ballot presenting the budget must bear the following statement:

Excluding New York City and its constituent counties (Gen. Muni. Law 3-c [1]), and school districts in New York City, Buffalo, Yonkers, Rochester and Syracuse ( Education Law 2023-a [2][h]). 4 E.g., a tax levy necessary for expenditures resulting from court orders or judgments arising out of tort actions for any amount that exceeds 5% of the prior fiscal or school year tax levy; a tax levy necessary for expenditures for retirement system contributions increases in excess of 2 percentage points; and, in the case of school districts, a tax levy necessary to support capital local expenditures.

Adoption of this budget requires a tax levy increase of ___ which exceeds the statutory tax levy increase limit of ___ for this school fiscal year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting. Education Law 2023-a[6][b]. There is no similar provision in General Municipal Law 3-c. A. The Complaint In This Declaratory Judgment Action. Because a complete copy of the Summons and Complaint is before the Court as exhibit A to the accompanying March 31, 2013 affirmation of Stephen M. Kerwin, Assistant Attorney General (cited herein as Ver. Comp.), only the salient aspects of the Complaint are presented here. For the purpose of this motion, the factual allegations in the Complaint are assumed true. 1. The Parties to this Declaratory Judgment Action.

This action is brought by a union representing public and private sector employees and retirees, including persons employed by, or retired from, local public school districts, colleges and universities, hospitals, libraries, municipal governments, and centers for the developmentally disabled. Ver. Comp. 38. The majority of the unions members reside in New York, are qualified to vote in their school district elections, and, in some cases, have children who attend New Yorks public schools. Id. The union is joined as the plaintiff in this action by eight individuals who are variously state residents and taxpayers, parents of children who attend public schools, and voters in their local school elections. Ver. Comp. 13-37. In addition, two of the individuals (Pearl and Strong) also sue on behalf of their children who are alleged to be public school students, and four (Avery, Ehlers, Pearl, Pickford) claim to be teachers in state public schools. Id. All eight individual plaintiffs claim to have voted in favor of local school budgets (id.) that included a tax levy in excess of the tax levy limit and failed to garner the 60% vote

necessary for passage. Ver. Comp. 121-125.5 None of the individual plaintiffs is a school board member, though one, Flusser, was once a board member but is no longer. Ver. Comp. 19. The defendants are the State of New York, and its Governor, Comptroller and the Commissioner of Education, all sued in their official capacities. Ver. Comp. 41-43. 2. The Allegations In the Complaint. Plaintiffs attack Education Law 2023-a as violating the Education Article (Article XI) of the New York State Constitution (First and Second Causes of Action), the Equal Protection clauses of the United States and New York Constitutions (First, Third, Fourth and Sixth Causes of Action), the right to vote under the State and Federal Constitutions (Fifth Cause of Action), and the right to free expression under the Federal and New York Constitutions (Seventh Cause of Action). For relief, plaintiffs seek: (1) a declaration that Education Law 2023-a is null and void as it violates the New York and United States Constitutions; (2) a permanent injunction against continuation of the tax levy threshold as it applies to school districts; (3) an award of costs, disbursements, and attorneys fees to plaintiffs; and (4) such different relief which the Court finds appropriate. Ver. Comp. page 50. At bottom, the plaintiffs seek to have declared unconstitutional Education Law 2023-a. 3. Procedural Posture.

The Summonses and Complaints were served on or about February 20, 2013. By stipulation of counsel, the time for the defendants to respond was extended to April 1, 2013.

Note however that of the ten school districts mentioned in these paragraphs, only five have an individual plaintiff as a resident.

Kerwin Affirmation, exhibit B. The defendants have not answered but instead now move to dismiss the Complaint pursuant to CPLR 3211(a)(7). ARGUMENT Standard of Review. 1. CPLR 3211(a)(7).

On a defendant's motion to dismiss for failure to state a cause of action, a plaintiff's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true. See CPLR 3026; 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002); see also Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); State of New York v. Shaw Contract Flooring Servs., Inc., 49 A.D.3d 1078, 1079 (3d Dept. 2008). Where, as here, a motion is premised upon plaintiff's failure to state a claim (see CPLR 3211[a][7]), the dispositive inquiry is whether the plaintiff has a cause of action, and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); accord Nonnon, 9 N.Y.3d at 827. Affidavits and other evidentiary material may be considered to establish conclusively that [the] plaintiff has no cause of action. Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636 (1976); see Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 268-269 (1st Dept. 2005). A motion based on plaintiffs' failure to state a cause of action can be made at any time. CPLR 3211(e); Carpenter v. Plattsburgh Wholesale Homes, Inc., 83 A.D.3d 1175, n. 1 (3d Dept. 2011). 2. Plaintiffs' Burden of Proof.

Since [l]egislative enactments enjoy a strong presumption of constitutionality ... parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity

beyond a reasonable doubt. LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002) [internal citations omitted]); McKinney's Cons. Laws of New York, Book 1, Statutes 150, p. 320321. Moreover, courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional. Id. "Only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality. Schultz Management v. Board of Standards and Appeals of City of New York, 103 A.D.2d 687, 689 (1st Dept. 1984), citing Sgaglione v. Levitt, 37 N.Y.2d 507, 515 (1975). Thus, where an act is susceptible of two constructions, one of which will make it constitutional and the other unconstitutional, the former will be adopted. McKinney's Cons. Laws of New York, Book 1, Statutes 150, p. 324. Plaintiffs present a facial challenge to the constitutionality of Education Law 2023-a. Ver. Comp 8.6 As stated by the United States Supreme Court in Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), a facial challenge to a statute's constitutionality is disfavored. [A] plaintiff can only succeed in a facial challenge by establish[ing] that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications. Id. at 449, quoting United States v. Salerno, 481 U.S. 739, 745 (1987). New York's rule is similar. Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448 (2003); Cohen v. State of New York, 94 N.Y.2d 1, 8 (1999); Amazon.com LLC v. New York State Department of Taxation and Finance, 81 A.D.3d 183, 194 (1st Dept. 2010). In maintaining a facial challenge to a properly enacted statute, plaintiffs bear a heavy burden of negating every conceivable circumstance under which the statute may be constitutional, in addition to having to prove their claim of unconstitutionality beyond a reasonable doubt.

While plaintiffs assert that they present both types of challenges, they do not differentiate which of their causes of action is a facial challenge, and which, if any, is an as-applied challenge.

POINT I PLAINTIFFS LACK STANDING TO RAISE ALL CLAIMS, EXCEPT TO THE EXTENT THAT THE INDIVIDUAL PLAINTIFFS HAVE ALLEGED ISSUES OF VOTE DILUTION IN THEIR CAPACITY AS VOTERS. Standing must be proven by the plaintiffs. The defendants only obligation at this juncture is to raise the defense as part of their motion to dismiss. Once raised, the plaintiffs must present their proof demonstrating their right to assert the claims alleged. For the following reasons, the defendants maintain that, with one narrow exception, the plaintiffs will be unable to sustain their burden on this issue. Plaintiffs in this case are NYSUT, defined in the Complaint as a labor organization which is the statewide affiliate for local unions representing "over 600,000 public and private sector employees and retirees, including employees of school districts, colleges and universities, hospitals, centers for the developmentally disabled, libraries and local governments" (Ver. Comp., 38), parents, taxpayers, and voters. Some of the plaintiffs are, in addition, teachers in New York State school districts. With respect to NYSUT, it should be noted that the employees of "local governments" and "school districts" and the nature of their employment are unidentified in the Complaint other than the reference quoted above. Similarly, none of the individual plaintiffs have represented themselves as acting as a member of or on behalf of a Board of Education or other local government. With respect to the parent plaintiffs, only two have filed suit on behalf of their children: plaintiffs Strong and Pearl. (Ver. Comp., Caption). The remaining parent plaintiffs have sued only on their own behalf. The harm alleged by the plaintiffs, as specified in the Complaint, involves the "tax cap only as it applies to school districts." (Ver. Comp., 47). Plaintiffs make

no allegations that, as a result of the tax cap, the State is providing inadequate support for its public schools. (Ver. Comp., 7-8). The plaintiffs do not have standing to assert any of the claims raised in the Verified Complaint, except to the extent that the individual plaintiffs, as voters, allege that the tax cap has the effect of diluting their voting power as alleged in their Fifth Cause of Action. Accordingly, defendants respectfully request that all causes of action, except for the Fifth, be dismissed for lack of standing.7 Defendants further request that all claims asserted by NYSUT, as well as all claims asserted by the individual plaintiffs in any capacity other than that of voters, be dismissed as well. It is worth noting at the outset that the plaintiffs attempt to assert a cause of action under the Education Article which does not exist and which ought to be dismissed. See Point II, infra. Their claim regarding State interference with local control over education is unlike any other previously asserted under Article XI of the New York State Constitution. See, e.g., Campaign for Fiscal Equity, Inc. v. State of New York, [CFE I] 162 Misc. 2d 493 (N.Y. Co. Sup. Ct. 1994) modified 205 A.D.2d 272 (1st Dept. 1994) modified and affirmed 86 N.Y.2d 307, 316 (1995)(standing by parents, among others, to maintain challenge, inter alia, under Article XI 1 alleging that the State was not providing funding adequate to support a system of public schools where student could obtain a sound basic education); NYS Association of Small City School Districts v. State of New York, 42 A.D.3d 648 (parent and students plaintiffs had standing to maintain CFE I-like action while school district association did not). Defendants argue that Article XI, 1 does not create a private right of action against the State or its officials for allegedly interfering with local control of education funding. See Point II, infra. To the extent

As to the Fifth Cause of Action and grounds for its dismissal on other than standing, see Point VI, infra, at page 49.

such a claim exists, plaintiffs have not sufficiently established that any named Plaintiff in this case has standing to bring such a claim. Standing: general requirements. Standing is a threshold issue which must be determined at the outset of any litigation since without it the plaintiffs may not seek judicial review. Rudder v. Pataki, 246 A.D.2d 183, 185 (3d Dept.1998) aff'd 93 N.Y.2d 273 (1999). The burden of establishing standing rests on the plaintiffs as the parties seeking review, and not with the defendants. Id. Standing may be conferred by statute or established under the common law. Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 769 (1991). In order to meet the constitutional test for standing, the plaintiff must show that he or she has sustained or is in immediate danger of sustaining some direct, distinct and palpable injury as a result of the illegal conduct. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Moreover, for future injury to confer standing, its threat must be "real and immediate" not "conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). The plaintiff must then show that there is a "fairly traceable" causal connection between the claimed injury and the challenged conduct, and that the injury "'is likely to be redressed by a favorable decision.'" Valley Forge Christian College, 454 U.S. at 472 (quoting Simon, 426 U.S. at 41).

Mount Sinai Union Free Sch. Dist. v. Board of Educ., 836 F. Supp. 95, 100 (E.D.N.Y. 1993). In order to establish standing to sue under traditional common law principles, the party seeking relief must demonstrate that it will suffer direct harm or an injury in fact that is different in some way from that of the public at large. Transactive Corp. v. New York State Dept. of Social Services, 92 N.Y.2d 579, 587 (1998); Rudder, 246 A.D.2d at 185. Put another way, a court is without power to right a wrong where civil, property or personal rights are not affected. Transactive Corp., 92 N.Y.2d at 587. A party may not maintain what is otherwise a generalized

10

grievance despite the fact that the issue raised may be one of wide public concern. Rudder, 246 A.D.2d at 186. Moreover, plaintiffs must demonstrate that the injury they claim falls within the zone of interests to be protected by the statute challenged. Transactive Corp., 92 N.Y.2d at 587. This prerequisite ensures that a group or an individual whose interests are only marginally related to, or even inconsistent with, the purposes of the statute cannot use the courts to further their own purposes at the expense of the statutory purposes. Id. Citizen/Taxpayer standing. The Verified Complaint defines the plaintiffs as district taxpayers, not state taxpayers. Ver. Comp., 1. Presuming that the plaintiffs also pay state taxes, however, it is well settled that state taxpayers do not have standing to challenge the actions of state government simply because they pay taxes to the state. Board of Educ. v. New York State Teachers Retirement Sys., 60 F.3d 106, 110 (2d Cir. 1995). The Legislature, in State Finance Law 123, has granted individual taxpayers an interest in the proper disposition of all state funds and properties, however, and this statutory section offers an alternative ground for taxpayer standing. Transactive Corp., 92 N.Y.2d at 588-89. A citizen taxpayer may challenge "a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or property without demonstrating actual or specific aggrievement." State Finance Law 123-b. As most governmental activities are somehow related to expenditures, the statute must not be read too broadly, and instead must be narrowly construed. Transactive Corp., 92 N.Y.2d at 589; Humane Soc. of U.S. v. Empire State Development Corp., 53 A.D.3d 1013, 1016-1017 (3d Dept. 2008). In order to properly assert taxpayer standing plaintiffs must establish a sufficient nexus between their claim and the fiscal activities of the state to allow standing. Rudder, 93 N.Y.2d at 281.

11

The harm alleged by the plaintiffs, with respect to taxpayers, is that Education Law 2023-a "arbitrarily and unequally [limits] the right and ability of local school boards and school district taxpayers to address existing funding inequalities, and to provide enhanced educational opportunities," and "deprive[s] school districts and district taxpayers of local control of education funding." Ver. Comp., 216-217. Plaintiffs further allege that the law "places a chilling effect on the free expression and voting rights of taxpayers who wish to increase school funding." Ver. Comp., 254. These allegations are clearly insufficient to satisfy a threshold showing for taxpayer standing, as there is no demonstrated connection between the disposition of state funds and the causes of action alleged. See, e.g., Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003). As such, the plaintiffs have failed to allege any injury in fact, as taxpayers, related to the statutes effect on local taxes. Although plaintiffs allege that the law has the effect of depriving taxpayers and school districts of local control of education funding, the link between the law which is designed to alleviate the burden of excessive local property taxes, and the control of education funding is attenuated. Plaintiffs do not allege that decisions regarding the distribution of local funds are made by taxpayers, nor have plaintiffs asserted any action against a local government entity for failing to appropriately distribute local funds. No allegations have been made that would suggest that plaintiffs are prohibited, as individual taxpayers, from paying additional money to their local government for the purpose of school funding, or from contributing to their local school district directly. The link between the challenged law and any cause of action asserted on behalf of a taxpayer is simply unexplained. Similarly, allegations regarding the "chilling effect on free expression" of the voting rights of taxpayers clearly relates to the issue of voter standing, as opposed to taxpayer standing, and is discussed in connection with that issue, infra. As such, the plaintiffs have failed to allege a

12

nexus between their status as taxpayers and the challenged state action, and have thus failed to allege a specific injury in fact that would not be suffered by the community in general. See New York State Assn. of Small City School Dists., Inc. v. State of New York, 42 A.D.3d 648, 651 (3d Dept. 2007); Riverhead v. N.Y. State Bd. of Real Prop. Servs., 7 A.D.3d 934, 936 (3d Dept. 2004). As the statutory test for taxpayer standing in New York State is now the general rule for determining whether standing exists, common law standing beyond the parameters of the statutory test will only be found where "failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action." Boryszewski v. Brydges, 37 N.Y.2d 361, 364 (1975). Plaintiffs have neither alleged nor demonstrated an "impenetrable barrier to judicial scrutiny". Id. In fact, it is clear that issues relating to school funding are reviewable, depending on how they are framed and by whom they are asserted. See, e.g., New York State Assn. of Small City School Dists., Inc., supra, at 651 (parents and students have standing to challenge funding to school districts). The limited exception offered in Boryszewski is not available when the claims may be addressed if presented in the proper forum by the proper individuals. New York State Assn. of Small City School Dists., Inc., supra, at 651 (declining to find taxpayer standing for underfunding of school districts); MFY Legal Services, Inc. v. Dudley, 67 N.Y.2d 706, 708 (1986)(no "impenetrable barrier" found where issues raised on appeal could be presented on a motion to vacate default judgment); Weimer v. Board of Education, 52 N.Y.2d 148, 155 (1981)(no "impenetrable barrier" when there are other plaintiffs who would be qualified to maintain the lawsuit); Matter of Feminists Choosing Life of N.Y., Inc. v. Empire State Stem Cell Bd., 87 A.D.3d 47, 50 (3d Dept. 2011). Accordingly, none of the

13

individual plaintiffs have standing to bring this action, as framed, solely by virtue of their status as citizen taxpayers. Voter Standing. The plaintiffs have also filed this action as "school district voters". Ver. Comp., 1. Voter standing has been found only when a direct impact to a constitutionally-protected voting right has been alleged. See, e.g., Schulz v. State, 81 N.Y.2d 336, 347 (N.Y. 1993) (the right to vote on a debt referendum pursuant to Article VII, 11 provides standing to challenge constitutionality of state action that effectively circumvents the referendum requirement); Rudder v. Pataki, 93 N.Y.2d 273, 281 (1999)(no voter standing where plaintiffs failed to point to a specific constitutional provision at play and no statute even tangentially related to the right to vote); Saratoga County Chamber of Commerce Inc. v. Pataki, 275 A.D.2d 145, 156 (3d Dept. 2000)(voter standing arises when the right to vote is eliminated or votes are diluted). As voters, plaintiffs allege that Education Law 2023-a has impaired the following: 1) the right of voters, secured by Article XI of the New York State Constitution, "to make their own decisions with regard to their school district's local share of school funding" (Ver. Comp., 223225); 2) the right of voters to provide funding for the education of their school children through taxation (Ver. Comp., 226-230; 231-236); 3) the fundamental right to vote, by diluting the voting power of those who vote in favor of cap-exceeding funding (Ver. Comp., 237-241; 242-245); and 4) the "free expression" of voters, protected by the First Amendment, by requiring the notice to voters required by Education Law 2023-a(6)(b). Ver. Comp. 246-248. Other than by alleging vote dilution, however, the plaintiffs have failed to establish voter standing for any of the claims raised in this matter.8

As to plaintiffs vote dilution claim, it ought to be dismissed for the reasons set forth Point VI, infra at pages 48-50.

14

Plaintiffs do not link their claims to any impairment of the right to vote. In fact, the plaintiffs have the right to vote and have, in fact, voted on these issues. The real issue asserted under the guise of an impact on "voting rights" is the sufficient funding of schools, a claim they specifically disavow asserting in this action. Complaint, 7-8. Plaintiffs' assertion of issues related to education funding under the guise of voting right impacts fails to demonstrate a nexus between these two disparate rights and fails to suggest any concrete link between the statute and the actual failure to provide a sound basic education. As the "irreducible constitutional minimum of standing" requires injury in fact, the plaintiffs fail to adequately demonstrate a basis for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). With respect to the allegation that standing exists because statements intended to sway votes impair the right to vote, this argument has been considered and rejected in other cases, and cannot form a basis for standing in this one. Dalton Farms Assocs. v. Baker, 704 F. Supp. 460, 464-465 (S.D.N.Y. 1989)("We believe that the parameters of voter standing cannot be expanded to include generalized interference with the political process. Extension of the concept of voter standing to encompass governmental influences in the arena of political speech and participation finds basis in neither law nor logic."). Furthermore, none of the plaintiffs allege that they were swayed by, or dissuaded from voting because of the required ballot statement. In fact, all plaintiff-voters indicated that they voted in favor of a budget that needed a 60% approval. Ver. Comp. 15, 17, 20, 23, 25, 30, 32, 37. Thus, the plaintiffs have failed to allege an injury in fact with respect to this cause of action as well, and impermissibly attempt to assert the generalized rights of third parties. See New York v. Ferber, 458 U.S. 747, 767 (1982)(may not assert the rights of others in constitutional litigation). As such, all claims alleged by the individual

15

plaintiffs in their capacity as voters must be dismissed on standing grounds except the Fifth Cause of Action, which alleges vote dilution and which is addressed in Point VI, infra. Teacher standing. Similarly, none of the individual plaintiffs have demonstrated standing by virtue of their status as teachers in the school districts, as they fail to allege any injury in fact within the zone of interests sought to be promoted by the statute. The Complaint contains no allegations of harm to the plaintiffs identified as teachers specific to that identification, except for some generalized allegations that teaching positions are or will be lost in certain districts due to budget cuts. See, e.g., Ver. Comp. at 133(b). These allegations fall far short of those required to establish standing. Port Wash. Teachers' Ass'n v. Bd. of Educ., 478 F.3d 494, 499-500 (2d Cir. 2007)(conclusory allegations of potential harm non-specific to plaintiffs insufficient to establish standing); Mount Sinai Union Free Sch. Dist. v. Board of Educ., 836 F. Supp. 95, 101 (E.D.N.Y. 1993)(injury alleged must be specific to plaintiffs). Therefore, the plaintiffs do not have standing, by virtue of their status as teachers, to assert any of the claims in the instant action. Associational/organizational standing. NYSUT, a statewide affiliate for local teachers unions, has sued solely on behalf of its members, some of whom are teachers and other employees of schools and related entities. Ver. Comp., 38. NYSUT further alleges that its members are voters and parents of school children. Id. To establish associational or organizational standing, "an organizational plaintiffmust show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members." N.Y. State Ass'n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004). "The standing of an organization to maintain an action on behalf of its members

16

requires that some or all of the members themselves have standing to sue, for standing which does not otherwise exist cannot be supplied by the mere multiplication of potential plaintiffs." Matter of Dental Socy. of State of N.Y. v. Carey, 61 N.Y.2d 330, 333 (1984); see also Wyman v. Braman, 298 A.D.2d 787, 789 (3d Dept. 2002). NYSUT fails to make even the barest of allegations that would entitle it to maintain this action on behalf of its members, and must be dismissed as a plaintiff. Since the plaintiff teachers (and by extension, other staff members of the schools) do not have individual standing with respect to the claims asserted in this action as addressed supra, NYSUT may not claim associational standing based on their members in their professional capacities. Matter of New York State Psychiatric Assn., Inc. v. Mills, 29 A.D.3d 1058, 1059 (3d Dept. 2006)(first prong of associational standing test requires injury in fact to one or more members that is within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted). Although NYSUT references members who are employees of Boards of Education or school districts, no specific information about those members is provided and there are no allegations that any individual plaintiffs or NYSUT brings this suit in a representational capacity on behalf of a school district or Board of Education. Moreover, to the extent that NYSUT seeks to assert a claim on behalf of its members as parents and voters, there is no showing that such a claim is related to its organizational purposes as a teachers union. NYSUT alleges, at best, only a tenuous link between its representational status and the harms alleged. Id.; see also New York State Ass'n of Crim. Defense Lawyers v. Kaye, 269 A.D.2d 14, 17 (3d Dept. 2000). Thus, NYSUT must be dismissed as a plaintiff in this action.

17

Parents' standing. The individual plaintiffs have sued on their own behalf, and in two cases on behalf of their children, who are alleged to be students in two different school districts in New York State. The sole cause of action asserted on behalf of the parents, which is really that of their children, is the First Cause of Action (Ver. Comp., p. 41), which alleges a violation of the Education Article of the State Constitution. Plaintiffs claim the challenged statute deprives districts of local control and limits their ability to raise funds to address economic disparities. In Point II, infra, Defendants argue that such a cause of action under the Education Article does not exist. In any event, the plaintiffs have not established standing to raise these issues, either on their own behalf or on behalf of their children, and any causes of action raised by the plaintiffs as parents must therefore be dismissed for much the same reason as plaintiffs claims as taxpayers. See pages 10-13, supra. Parents' standing - on their own behalf To the extent that the individual plaintiffs allege that they have standing as parents to address the effect of Education Law 2023-a on local control of educational funding in their districts, this argument mirrors that relating to taxpayer status and must be dismissed for the same reasons. Plaintiffs fail to allege any specific harm to themselves, as parents, that stems from the tax cap, and may not assert standing on this basis. Plaintiffs have not alleged or demonstrated any right that inheres to them, solely as parents, with respect to this lawsuit, and therefore the claims of those parents who have not sued on behalf of their children must be dismissed.

18

Parents' standing - on behalf of students While a parent, on behalf of a student, might be able to raise issues related to inadequate school funding on behalf of their children (New York State Assn. of Small City School Dists., Inc., supra), this has not been alleged in the instant case (see pages 20-21, infra) and the plaintiff parents therefore fail to demonstrate that they have standing to raise the claims in their First Cause of Action. When parents sue on behalf of their children, the relevant inquiry is whether the children would have standing to assert the claims pled. See McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 284 (2d Cir. N.Y. 2004). From this standpoint, plaintiffs have disavowed (and, to the extent they have not so disavowed, improperly pled) any claims related to adequate school funding. Ver. Comp., 7-8. Plaintiffs have likewise failed to allege that their children have suffered any particular adversity related to the tax cap. To the extent that the claims in the First Cause of Action are deemed to relate to local control of educational funding and voting limitations, there is no allegation that school children would be in a position to raise those claims. McCormick, supra at 284-285. Standing to Assert Rights of School Boards In their Complaint, plaintiffs assert that the rights of School Boards have been violated by Education Law 2023-a. See Ver. Comp. 79, 210, 225, heading for Second (The Tax Cap Violates the Education Article By Impairing the Right of Plaintiff Taxpayers, and of School Boards, To Substantially Control Their District Finances) and Third (The Tax Cap Violates Plaintiffs Right to Equal Protection of Law Because It Arbitrarily and Discriminatorily Impairs the Right of Local School Boards and Their Voters to Provide Educational Funding) Causes of Action.

19

First, the plaintiffs do not have standing to assert the rights of others. Generally the law prohibits "one litigant raising the legal rights of another." Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773 (1991). No individual plaintiff is a current member of a school board; plaintiff Flusser was once a board member but left that office on June 30, 2012. Ver. Comp 18. Thus, insofar as the plaintiffs assert the rights of school boards, they are without standing to do so. Second, even if they did have standing, they seek to assert claims of entities that do not themselves have the capacity to sue the named respondents. City of New York v. State of New York, 86 N.Y.2d 286 (1995)(municipal entities lack capacity to bring suit against the state or its officials as to the constitutionality of state statutes; municipal officers and members of municipal administrative or legislative bodies suffer from the same lack of capacity); New York State Association of Small City School Districts, Inc. v. State of New York et al. 42 A.D.3d 648, 650 (3d Dept. 2007) (Initially, we concur with Supreme Court's conclusion that the Association lacks standing to bring this action. Unquestionably, the Association's individual member school districts lack capacity, inasmuch as the State shares the traditional principle throughout the United States that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation quoting City of New York, 86 N.Y.2d at 289). Accordingly any claim asserted by the plaintiffs on behalf of school boards should be dismissed. Based on the foregoing, plaintiffs simply cannot demonstrate that they have standing to raise the claims asserted in this lawsuit in the manner in which they have been pled. Defendants therefore request dismissal for lack of standing of all claims except those relating to vote dilution that have been asserted by the individual plaintiffs.

20

ARTICLE XI CLAIMS IN PLAINTIFFS FIRST AND SECOND CAUSES OF ACTION

POINT II PLAINTIFFS EDUCATION ARTICLE CLAIMS ARE WITHOUT LEGAL FOUNDATION AND SHOULD BE DISMISSED. At the outset, plaintiffs disavow any intention on their part to assert in this action a claim for violation of Article XIs requirement that the State provide funding adequate to support a system of public schools where students can obtain a sound basic education (see Campaign for Fiscal Equity, Inc. v. State of New York, [CFE I] 86 N.Y.2d 307, 316 [1995]). See Ver. Comp. 7 (Plaintiffs in this litigation do not seek a judicially-ordered increase in the tax levy of any school district, nor do plaintiffs seek a court-ordered increase in State education aid), and 8 (Plaintiffs also do not seek to establish any specific district-wide failure to provide a sound basic education.plaintiffs in this litigation assert only that the tax cap, on its face and as applied is unconstitutional). Indeed, their Complaint is devoid of allegations addressing the necessary elements of such a claim: inadequate State funding, district-wide academic failure leading to the deprivation of a sound basic education, and causation by the State. New York Civil Liberties Union v. State of New York (NYCLU), 4 N.Y.3d 175, 178-179 (2005); CFE I, 86 N.Y.2d at 318; see also Paynter v. State of New York, 100 N.Y.2d 434, 440, 441 (2003); Board of Education, Levittown Free School District v. Nyquist (Levittown), 57 N.Y.2d 27, 47, 48 (1982). Furthermore, to state a claim under Article XI, plaintiffs must clearly articulate the asserted failings of the State, sufficient for the State to know what it will be expected to do should the plaintiffs prevail. NYCLU, 4 N.Y.3d at 180. Taken together, plaintiffs explicit

21

disavowal, and the allegations appearing, and not appearing, in their pleading make clear that no funding inadequacy claim is asserted herein. Plaintiffs Education Article claims in their first two Causes of Action argue that by enacting Education Law 2023-a, the State deprived school districts of local control of education funding. Ver. Comp. 217 and 224. According to plaintiffs, this right of local control is the right to make basic decisions on funding and operating local schools, and to fund educational opportunities beyond the minimum sound basic education. Id. at 211. Plaintiffs allege that as currently structured, educational funding in New York allows some districts to spend substantially more on education than other districts. Id. at 212-213. 1. Article XI 1 Does Not Create a Right of Action Seeking Equal Resources, Nor Does It Create A Right Of Action To Challenge State Laws Governing The Nature, Extent, And Manner In Which Local School Districts Can Fund And Deliver Educational Services In Its Public Schools. At the threshold, Article XI, 1 does not create a right of action against the State or its officials seeking equal resources, nor does it create a right of action to challenge State laws governing the nature, extent, and manner in which local school districts can fund and deliver educational services in its public schools. That section of the Constitution reads in total: The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. N.Y. Constitution, Article XI, 1. To be sure, the Court of Appeals has stated that the Education Article enshrined in the Constitution the tradition of a state and local partnership in which "people with a community of interest and a tradition of acting together to govern themselves" make the "basic decisions on funding and operating their own schools" (quoting Levittown, 57 N.Y.2d at 46). The aim of the Article "was to constitutionalize the established system of common schools rather than to alter its

22

substance." Paynter, 100 N.Y.2d at 442, quoting Reform Educ. Fin. Inequities Today [REFIT] v. Cuomo, 86 N.Y.2d 279, 284(1995); see also NYCLU, 4 N.Y.3d at 181-182. While Article XI, 1 may provide for a right of action against the State for failing to provide adequate funding to support of a system of free common schools ( see CFE I, 86 N.Y.2d 307), it does not provide for a right of action seeking equal resources, nor does it create a right of action to challenge State laws governing the nature, extent, and manner in which local school districts can fund and deliver educational services in its public schools. First, the Court of Appeals has squarely rejected the argument that Article XI section 1 requires a system of free common schools in which the education to be made available be equal or substantially equal in every district. As laudable as that notion may be, it simply is not within the scope of Article XI, 1. Levittown, 57 N.Y.2d at 47-49. Thus plaintiffs allegation that the tax cap legislation will result in greater disparities does not give rise to a claim under the Education Article. Disparities derived from wealth differentials in local school districts simply do not violate the Education Article of the State Constitution. Id. Similarly, while the Court of Appeals has recognized New Yorks education system is a State and local partnership, the notion that there is an unfettered right to local control of school district funding is not supported by the text of Article XI, 1. This position is supported by the history of the Education Article, which was intended to impose on the State the duty to assure a system which provides a minimum level of education (a sound basic education) in the thenexisting common schools of the State. While Courts have recognized the tradition of local participation in the governance of their own schools, Article XI, 1 does not constitutionalize a right of local control of education funding upon which a resident, taxpayer, parent, teacher, child, voter or teachers union may sue the State or its officials based on impingement of local

23

control alone. Cf. Levittown, supra; Paynter, supra; NYCLU, supra. No such cause of action has been recognized in any published court decision in the State of New York. Like other efforts to expand the kinds of claims that can be brought under Article XI, 1 which have been rejected by the Court of Appeals (Levittown, Paynter, NYCLU), plaintiffs novel claim of a right to local control is not a viable claim. Further, the State is ultimately the controlling partner in the education system partnership with local school districts. This was recognized in part in City of New York v. State of New York, 86 N.Y.2d 286 (1995), in which the Court of Appeals affirmed the dismissal of the action because of the municipal entities lack of capacity to sue. the traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies-counties, towns and school districts--are merely subdivisions of the State, created by the State for the convenient carrying out of the State's governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants. 86 N.Y.2d at 289-290. The States power with respect to education may best be illustrated by the authority vested in its Education Commissioner to lay out new central school districts. When the Education Article was ratified in 1896, there were 11,000 school districts in the State. Paynter, 100 N.Y.2d at 470. A little more than a century later, these 11,000 have been consolidated into about 700 districts. Id. Education Law 1801 empowers the Commissioner of Education "to lay out central school districts and to fix, determine and define the boundaries" thereof.

24

Subdivision 2 of that section empowers him to lay out territory in new central school districts or to annex to existing central school district territory not contained within a city school district. Subdivision 3 provides for notice to each school district, the "territory of which is affected" by the Commissioners order. The Commissioners power to create new districts by combining fully, or taking part of, other districts has been confirmed by the New York courts. Board of Education v. Wilson, 303 N.Y. 107 (1951)(school district had no standing to question the act of the commissioner in incorporating its territory into the new central school district; the statutes grant power to the commissioner to include all or part of an existing district within a central school district laid out by him); Board of Education v. Allen, 6 A.D.2d 316 (3d Dept. 1958), affd. 6 N.Y.2d 871 (1959)(upholding commissioners order for the creation of one central school district by combining three existing school districts in challenge by board and taxpayers who argued that any scheme which permitted a tax district to be cast in with another, larger district against its will and under circumstances where it will lose the autonomy and right of fiscal decision is a deprivation of the right of self-determination and violates the constitutional rights of its taxpayer); In re Soergel, 10 A.D.2d 767 (3d Dept. 1960), affd. 9 N.Y.2d 633, amend. 9 N.Y.2d 825 (1961), cert. denied sub nom. Soergel v. Allen 368 U.S. 2 (1961)(authority of Education Commissioner to lay out central school district upheld). While maintaining the State-local partnership, the State has consistently exercised control and oversight of the overall management of school districts for the delivery of educational services. The Board of Regents is constitutionally empowered to exercise legislative and policymaking functions with respect to the State's educational system (N.Y. Const., Article XI, 2; Education Law 207). Statewide regulations are promulgated by the Commissioner of Education upon approval by the Board of Regents (Education Law 207). Those regulations set

25

forth minimum educational standards for elementary and secondary schools in areas such as teacher certification (8 NYCRR Part 80 et seq.); elementary and secondary education program requirements, including graduation requirements, summer school and guidance programs (8 NYCRR Part 100); school libraries (8 NYCRR Part 91) and suitable building facilities (8 NYCRR Part 155). All such requirements have an impact to a greater or lesser extent on local control of education funding. Yet all are a valid exercise of the States responsibility to provide for a system of free common schools. CFE II, 100 N.Y.2d 893. The State has also established a number of specific requirements governing local education funding. By way of examples in a not-nearly-exhaustive list: - Districts which lose resident students to charter schools are required by Education Law 2856 to forward to the charter schools per-pupil funding for each of their students the charters enroll; - BOCES superintendents salaries are capped by Education Law 1950 (4)(a)(2); - The Triborough Amendment (Civil Service Law 209-a (1)(e)) requires school districts to pay step salary increases to employees under a labor contract, even after expiration of the contract; - Local school districts are responsible for the cost of placing their resident students in the State schools for the blind and deaf under Education Law 4204-b; and - School districts must transport private school students to and from their private schools and provide textbooks for their use. Education Law 701, 3635. Finally, special legislation has been enacted which gave the State the authority to take over functions in a failing local school district. Pursuant to its authority under Chapter 33 of the Laws of 2002 (as amended by Chapter 72 of the Laws of 2002), the State removed the Board of Education of the Roosevelt Union Free School District and an interim board was appointed by the Board of Regents. That legislation also expanded the powers of the Education Commissioner

26

to restructure the districts finances and to appoint a fiscal administrator. See Kerwin Affirmation, exhibits C (Laws of 2002, Chapter 33), D (bill jacket for Chapter 33 of the Laws of 2002), E (Laws of 2002, Chapter 72) and F (bill jacket of Chapter 72 of the Laws of 2002). If the Court were to recognize a private cause of action under the Education Article based solely upon state impingement of local control of education, it would call into question all of the foregoing (and many other) longstanding elements of the State education system. Plaintiffs unique claim should be rejected, and insofar as the plaintiffs seek vindication of a constitutional right to local control of education funding, they fail to state a cause of action. CPLR 3211(a)(7). 2. Even Assuming There is a Constitutional Interest in Local Control of Education, the Plaintiffs Have Not Demonstrated That It Has Been Violated By the Tax Cap Law. Even assuming that there is a constitutional interest in local control of education funding, plaintiffs claim must be dismissed because the challenged legislation does not deprive school districts of local control. Plaintiffs claim that Education Law 2023-a deprives school districts and district voters of local control in four ways: (i) by locking in and expanding existing funding disparities between districts based on the wealth of those districts; (ii) by deterring local boards and taxpayers from even seeking tax levies in excess of the cap by requiring a ballot notice highlighting the effort to exceed the cap; (iii) by mandating that a budget seeking to exceed the cap be approved by 60% of voters; and (iv) by imposing adverse consequences on a district which tries and fails to exceed the cap. Id. at 217. Each of these fails to establish an infringement of local control in violation of the Constitution.

27

(i) Plaintiffs assertion that Education Law 2023-a locks in and expands existing funding disparities between districts based on the wealth of those districts is inaccurate. Plaintiffs claim that the tax cap allows some districts to spend substantially more on education than other districts is inaccurate. What allows some districts to spend more is not the cap, but the disparity in property values among districts. For the property poor, local control of education is more illusory than real, for it cannot be utilized to produce the educational output local authorities perceive as appropriate, but only what a limited local tax base will permit. Levittown v. Nyquist, 83 A.D.2d 217, 243 (2d Dept. 1981), modified 57 N.Y2d 27 (1982), appeal dismiss. 459 U.S. 1138 (1983). Under Levittown, 57 N.Y2d 27, disparities based on wealth or ability to provide local funding do not violate the Education Article. The challenged statute is consistent with prior Court precedent which permitted such disparities in recognition of the long tradition of State and local partnership in delivering education; the statute continues this partnership while also addressing the staggering increase in local property taxes. Succinctly stated, it is the gravamen of the complaint of the original plaintiffs that property-rich districts have an ability to raise greater local tax revenue enabling them to provide enriched educational programs beyond the fiscal ability of the property-poor districts. Both [original plaintiffs and intervenors] then assert that State aid as presently granted serves to perpetuate, and even to exacerbate, these disparities. 57 N.Y.2d at 36. The Court rejected these contentions, ruling that It is significant that this constitutional language -- adopted in 1894 at a time when there were more than 11,000 local school districts in the State, with varying amounts of property wealth offering disparate educational opportunities -- makes no reference to any requirement that the education to be made available be equal or substantially equivalent in every district. Nor is there any provision either that districts choosing to provide opportunities beyond those that other districts might

28

elect or be able to offer be foreclosed from doing so, or that local control of education, to the extent that a more extensive program were locally desired and provided, be abolished. What appears to have been contemplated when the education article was adopted at the 1894 Constitutional Convention was a Statewide system assuring minimal acceptable facilities and services in contrast to the unsystematized delivery of instruction then in existence within the State. Nothing in the contemporaneous documentary evidence compels the conclusion that what was intended was a system assuring that all educational facilities and services would be equal throughout the State. The enactment mandated only that the Legislature provide for maintenance and support of a system of free schools in order that an education might be available to all the State's children. 57 N.Y.2d at 47-48. Plaintiffs essentially make the same claim here-- that the new statute perpetuates and exacerbates these disparities -- a claim that Levittown rejected, and which should be rejected here. (ii) Education Law 2023-as ballot notice does not prevent local boards and tax payers from seeking tax levies in excess of the statutes threshold. Education Law 2023-a [6][b] provides that the following notice be posted on a ballot for the passage of a budget greater than the threshold established in the statute: Adoption of this budget requires a tax levy increase of ___ which exceeds the statutory tax levy increase limit of ___ for this school fiscal year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting. Plaintiffs overstate the effect of this notice provision. Contrary to their assertion, the notice does not unreasonably deter school boards, much less taxpayers, from seeking a tax levy in excess of the statutes threshold. First of all, not all taxpayers would favor a tax hike which exceeds the statutes threshold, nor, likely, would every school board member. But if a board or a member believes that its district needs to raise revenue in excess of that permitted under the cap, the district is not prevented from doing so merely by having to place the foregoing statement on the ballot, which statement is factually correct and merely constitutes voter education. Understanding what is required to approve a proposed cap-exceeding budget might influence the

29

way a voter votes, but only in an unpredictable way; some may be inspired to make sure the budget passes, and vote in favor; others may be inclined to vote against simply because the budget seems excessive. Here, the challenged provision merely requires that a valid statement of the law be included in the budget proposition; plaintiffs cannot show that such a requirement is actionable. Moreover, there is no penalty under Education Law 2023-a for proposing a budget with a tax levy in excess of a districts cap. Even if defeated in the first effort to pass such a budget, a school district can re-submit the same budget, or a revised budget, to district voters. Education Law 2023-a [7]. If the levy in either is also in excess of the districts annual cap, the ballot on the resubmitted or revised proposed budget would also be required to carry the statement provided by Education Law 2023-a [6][b]. Only after two defeats does Education Law 2023a limit the boards options, and require adoption of a budget with the same tax as was levied in the prior school year. Education Law 2023-a [8]. Thus the statute allows a school district two chances to pass a budget with a levy less than, equal to, or in excess of the tax cap. If unsuccessful in both efforts, the district is permitted to adopt a budget supported by a tax levy up to last years tax levy. (iii) Education Law 2023-as requirement that a budget seeking to exceed the statutes threshold be approved by 60% of voters does not diminish local control.9 Requiring that a proposed budget in excess of the statutes threshold be approved by sixty per cent of voters does not diminish local control of education funding. Rather, this supermajority provision keeps control in the hands of local voters. The sixty percent requirement is merely a measure designed to insure that a greater majority of local voters are

This subpoint also addresses the Article XI claim asserted in the Second Cause of Action wherein plaintiffs assert that The intent and practical effect of the tax cap law is to arbitrarily impair local control of education funding decisions. Complaint, 224.

30

aware of the impact that an over-sized budget may have on local property taxes which affect all property owners, not just those who vote in favor of the budget. Since the burden of such a budget is spread over all taxable property within a district, the sixty percent requirement leaves control in local hands; it merely alters the proportion of votes needed to be successful in the effort to exceed the threshold. The flaw in plaintiffs argument is that they fail to see that a budget turned down by district voters is still an exercise of local control. Local control encompasses both favorable and unfavorable consideration of a school districts budget, while plaintiffs appear to equate local control with budget approval. The vote itself connotes local control. Stated differently, local control is still served if a cap exceeding budget is disapproved by a districts voters. (iv) Plaintiffs claim that Education Law 2023-a imposes adverse consequences on a district which tries and fails to exceed the statutes threshold is unfounded. Since the plaintiffs do not identify the alleged adverse budget consequences imposed on school districts which try unsuccessfully to exceed the threshold established by Education Law 2023-a, defendants are left to speculate as to that allegation. Perhaps plaintiffs concerns arise in connection with the statutes provision concerning contingency or austerity budgets. Education Law 2023-a [8]. The statute merely changes in degree the limit imposed upon a district which is unsuccessful in having its voters approve a budget. Compare Education Law 2023 [4][a] prior to its 2011 amendment(contingency budget limited to an increase of the lesser of 120% of the rate of increase of the consumer price index or 4 %) with Education Law 2023-a [8] (contingency budget limited to amount of tax levy levied for the prior school year, a 0% increase). Of course, if the old provision applied under the challenged law with its 2% or rate of inflation limit on budget growth, districts could easily evade those limits. By structuring their

31

budget proposals they could be assured of utilizing the contingent budget mechanism which could result in a budget with positive growth in excess of the 2023-as limit. That would defeat the Legislatures effort to curb the out-of-control growth in property taxes that inspired passage of the law. Again, the fallback budget under 2023-a is the tax levy most recently approved by district voters. 3. Education Law Section 2023-a Encompasses Many Exclusions and Ameliorative Features. Education Law 2023-a is not a hard cap, i.e., one that is absolute and unyielding in its application. Most importantly, there is no cap at all if a districts budget obtains at least a 60% voter approval. Beyond that, the statute contains several modifications and exclusions from the tax levy limit, including: - a tax levy necessary for expenditures resulting from court orders or judgments against the school district arising out of tort actions for any amount that exceeds five percent of the total tax levied in the prior school year; - in years in which the retirement system average actuarial contribution rate increases by more than two percentage points from the previous year, a tax levy necessary for expenditures for the coming fiscal year for school district employer contributions to the retirement system caused by growth in the system average actuarial contribution rate minus two percentage points; - in years in which the normal contribution rate of the state teachers' retirement system increases by more than two percentage points from the previous year, a tax levy necessary for expenditures for the coming fiscal year for school district employer contributions to the state teachers' retirement system caused by growth in the normal contribution rate minus two percentage points; and - a capital tax levy. Education Law 2023-a [2][i] (i)-(iv). Furthermore, the statute accommodates for growth in the tax base based upon qualitative and quantitative changes to the districts real property. Education Law 2023-a [2-a], [3][a][2].

32

Education Law 2023-a also permits a carry-over on a year-to-year basis; i.e., the amount by which the tax levy for the prior school year was below the applicable tax levy limit for such school year, if any, but no more than an amount that equals one and one-half percent of the tax levy limit for such school year. Education Law 2023-a [2][b] and [3][a][7]. For the foregoing reasons, the threshold created by Education Law 2023-a does not violate Article XI, 1 of the State Constitution and the plaintiffs fail to state a cause of action for relief under Article XI in their First and Second Causes of Action.

EQUAL PROTECTION CLAIMS IN PLAINTIFFS FIRST, THIRD FOURTH AND SIXTH CAUSES OF ACTION.
Plaintiffs assert several causes of action alleging violations of the Federal and New York State Constitutions Equal Protection Clauses. For the reasons that follow, plaintiffs Equal Protection arguments are meritless and should be dismissed in their entirety. New Yorks Equal Protection Clause states: No person shall be denied the equal protection of the laws of this state or any subdivision thereof. New York Constitution Article I, 11. The Equal Protection Clauses in the Federal and New York State Constitutions are protective of the same rights. See Hernandez v. Robles, 7 N.Y.3d 338, 362 (2006). The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631 (2004); City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985); see also Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). The Equal Protection Clause does not forbid classifications. It simply keeps governmental decision-makers from treating differently persons who are in all relevant respects alike. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Accordingly,

33

[t]o prove an equal protection violation, claimants must prove purposeful discrimination . . . directed at an identifiable or suspect class. Giano, 54 F.3d at 1057 (internal citation omitted). Generally, legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. City of Cleburne, Texas, 473 U.S. at 440; see also Federal Communications Commn. v. Beach Communications, Inc., 508 U.S. 307, 314 (1993)(noting that the presumption of validity is strong). Undeniably, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. Federal Communications Commn., 508 U.S. at 313. Indeed, [i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Id. Where a plausible reason exists for the legislatures action, a courts inquiry is at an end. Id. at 313-314 (quotation marks and quoted case omitted); see also Nordlinger, 505 U.S. at 11. Therefore, a party attacking the rationality of the legislative classification ha[s] the burden to negative every conceivable basis which might support it. Federal Communications Commn., 508 U.S. at 315 (quotation marks and quoted case omitted)[emphasis added]; see also Matter of Wolpoff, 80 N.Y.2d at 78 (a court will upset the balance struck by the Legislature and declare [a redistricting] plan unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law and that reconciliation of the statute with the Constitution is impossible [quotation marks and quoted case omitted]); Iannucci v. Board of Supervisors of County of Washington, 20 N.Y.2d 244, 253 (1967) (legislation should not be declared unconstitutional unless it clearly appears to be so;

34

all doubts should be resolved in favor of the constitutionality of an act [quotation marks and quoted case omitted]). POINT III THE EQUAL PROTECTION CLAIMS IN THE FIRST AND THIRD CAUSES OF ACTION ARE MERITLESS AND SHOULD BE DISMISSED Plaintiffs maintain that the right to a sound basic education is or should be a fundamental right (Ver. Comp. 66 [The opportunity to receive a sound basic education so as to function as a productive citizen should be deemed a fundamental right under Article XI 1.], 209 [same], and 211 [School children have a fundamental right to learn and benefit from any enhanced educational opportunities that are provided through local control of education.]). If correct, this would require the application of strict scrutiny in assessing whether the statute under examination violates equal protection. Defendants maintain that the less-demanding rational-basis test applies to plaintiffs equal protection causes of action, and that Education Law 2023-a passes constitutional muster under that test. This issue has been decided by the United States Supreme Court (San Antonio School District v. Rodriguez, 411 U.S. 1 [1973], rehearing denied 411 U.S. 959 [1973]) and the New York Court of Appeals (Levittown, 57 N.Y.2d at 43) in cases determining that education is not a fundamental right, and that rational basis was the proper test to apply to an equal protection challenge on education issues: we have made clear that the State educational financing system will be upheld if it is supported by a rational basis. REFIT, 86 N.Y.2d at 285 (citing CFE I and Levittown). Rational basis analysis is appropriate in this case because Education Law 2023-a does not classify any person by race, alienage, national origin, gender, illegitimacy, or any other

35

suspect classification. See City of Cleburne, Texas, 473 U.S. at 440-441. Similarly, it does not impinge on any rights protected by the Federal Constitution. See id. at 440. Accordingly, the rational basis test is the appropriate standard to apply in this case. Under that test, any conceivable rational basis is sufficient to sustain the statutes constitutionality. The rational basis test "does not pass judgment upon the wisdom, fairness, or logic of legislative decisions; it turns on whether there are 'plausible' reasons for [the Legislatures] choices." Weinstein v. Albright, 261 F.3d 127, 140 (2d Cir. 2001) (citation omitted). See also Brown v. Board of Education Whitesboro C. S. D., 88 A.D.2d 184, 186-187 (3d Dept. 1982): Any question regarding the applicable standard of review, when as here the issue is not denial of a sound basic public education, has now been laid to rest by the Court of Appeals in Board of Educ. v. Nyquist (57 NY2d 27). There the court made it abundantly clear that when the claimed discrimination relates to the State's system of financing local school districts, the rational basis test is the proper standard to be applied. Under the rational basis test, plaintiffs bear the burden, which they have not carried, of demonstrating that the questioned classification has no rational relationship to a legitimate legislative goal (Vance v. Bradley, 440 U.S. 93). 88 A.D.2d at 186 [footnote omitted]. A. The First Cause of Action. Plaintiffs contend that their equal protection rights have been violated by Education Law 2023-a in that the tax cap law arbitrarily and unequally limits the right and ability of local school boards and school district taxpayers to address existing funding inequalities and to provide enhanced educational opportunities if they so choose.10 Ver. Comp 216.

10

The First Cause of Action also uses language indicative of a due process claim (This is a liberty interest protected by the Fourteenth Amendment. Ver. Comp. 211). However, there is no allegation that the due process rights of any plaintiff have been denied.

36

In enacting section 2023-a it is at least conceivable that the Legislature was mindful of the explosion in property taxes in New York State over the past 25 or more years. See, for example, http://www.tax.ny.gov/pit/property/learn/proptax.htm, showing that real property tax levies outside of New York City increased from $6.78 billion in the 1981-82 fiscal year, to $29.97 billion in fiscal year 2008-09.11 Between 1992-93 and 2008-09, real property tax levies outside of New York City doubled, from $14.67 billion to $29.97 billion. Id. Likewise, it is at least conceivable that the Legislature believed that this alarming increase in real property taxes was driving business and jobs from New York State to less taxing jurisdictions, and dampening economic activity in the State. Enacting legislation aimed at curtailing the growth of real property taxes in the State is certainly a rational reaction to the growing tax problem. B. The Third Cause of Action.

Plaintiffs allege in their Third Cause of Action that the tax cap, without any rational or compelling basis, imposes an arbitrary limit on tax levy increases for educational funding. Ver. Comp. 227. They also allege that within this arbitrary limit, wealthier districts can raise more revenue to provide enhanced educational opportunities than can less wealthy districts. Id. at 228. This, the plaintiffs claim, arbitrarily classifies and limits the ability of districts and voters to raise revenue and provide educational opportunity according to their existing taxable wealth, causing a discriminatory, adverse impact on the poorest districts and pupils. Id. at 229. In conclusion, the plaintiffs allege that this arbitrary classification impairs the right of school boards and voters to provide educational opportunity to school children and violates their right to equal

11

See People v. Eden, 95 A.D.3d 1446, 1447 fn 1 (3d Dep't 2012) (citing Matter of LaSonde v. Seabrook, 89 A.D.3d 132, 137 fn 8 (1st Dep't 2011) ("This Court has discretion to take judicial notice of material derived from official government Web sites such as those generated by the New York State Department of State.").

37

protection. Id. at 230. This claim should be dismissed as a matter of law for the following reasons. First, as argued above (pages 19-20), the plaintiffs do not have standing to assert the rights of school boards which are not, and could not be, parties to this action. Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773 (1991); City of New York v. State of New York, 86 N.Y.2d 286 (1995); New York State Association of Small City School Districts, Inc. v. State of New York et al. 42 A.D.3d 648, 650 (3d Dept. 2007). Second, compelling state interest analysis is inapplicable to plaintiffs equal protection claims based upon the judicial determinations that education is not a fundamental right. San Antonio School District, 411 U.S. 1; Levittown, 57 N.Y.2d 27, 43; REFIT, 86 N.Y.2d 279, 285. Third, a conceivable rational basis for the challenged law - to stem the sky-rocketing increase in property taxes in the State -- has already been posited by the defendants even though it is the plaintiffs burden to negate every conceivable rational basis for the law. Affronti v. Crosson, 95 N.Y.2d 713, 719 (2001), cert denied sub nom. Affronti v. Lippman, 534 U.S. 826 (2001). Finally, plaintiffs argument that the law discriminates against poorer districts, and favors wealthier ones (Ver. Comp. 228, 229) is simply a rehash of arguments made and rejected in Levittown, 57 N.Y.2d 27, 40-47 and in REFIT, 86 N.Y.2d 279, 285.

38

POINT IV PLAINTIFFS' EQUAL PROTECTION CLAIMS IN THEIR FOURTH AND SIXTH CAUSES OF ACTION FAIL AS A MATTER OF LAW BECAUSE SUCH CLAIMS WERE PREVIOUSLY REJECTED BY THE U.S. SUPREME COURT IN GORDON V. LANCE, 403 U.S. 1 (1971), AND BRENNER V. SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, 403 U.S. 913 (1971). A common thread weaves through plaintiffs' Fourth, Fifth and Sixth Causes of Action: the allegation that the tax cap's 60% supermajority requirement violates the equal-protection provisions of the U.S. Constitution and the New York State Constitution. Specifically, in their Fourth Cause of Action, plaintiffs allege that the 60% supermajority requirement "does not apply equally to all local government budgets" and that it "arbitrarily and discriminatorily places a higher burden on school district voters" in violation of the equal protection provisions of the U.S. Constitution and the New York State Constitution. Ver. Comp., 236. In their Fifth Cause of Action, plaintiffs allege that the 60% supermajority requirement "undemocratically dilutes the voting power of voters who favor a proposal to exceed the tax cap" and that this in turn also "violates the principle of one person, one vote" in contravention of New York State Constitution, Article I, 812 and Article II, 113, as well as the First Amendment to the U.S. Constitution. Ver. Comp., 238, 240. Likewise, in their Sixth Cause of Action, plaintiffs challenge the 60% supermajority requirement on equal protection grounds asserting that the "votes of those who favor exceeding the tax cap are given 2/3 the weight of those who oppose exceeding the cap."

N.Y. Const. Art. I, 8 states in relevant part: "Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. [omits criminal libel provisions]." N.Y. Const. Art. II, 1 states: "Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election."
13

12

39

Ver. Comp., 244, 245. However, the case law from the U.S. Supreme Court and New York courts shows that there is no legal basis to any of these claims. In their Fourth Cause of Action, plaintiffs claim that since New York's tax cap affects town boards and other local governments differently than it affects school districts, it causes an equal protection violation. More specifically, using an example of a town board that consists of five members, plaintiffs assert that a tax increase exceeding the tax cap that gathers only three votes from the five-member board is at once both a supermajority (60%) and a simple majority (3-2), yet a mere majority would never also constitute a supermajority for those voting on a school district budget, since, presumably, there are hundreds or thousands who would vote on such matter. Ver. Comp., 234-235. So, according to plaintiffs' line of reasoning, the different way that the tax cap's supermajority provision impacts these two groups "arbitrarily and discriminatorily places a higher hurdle on school district voters". Id., 236. This claim is meritless. A violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Matter of Matter of State of New York v. Myron P., 20 N.Y.3d 206, 211 (2012) (omits internal quotations) (emphasis added). Plaintiffs cannot meet either prong of this test and therefore their Fourth Cause of Action fails at the outset. Concerning the first prong, plaintiffs' claim fails as a matter of law because entities like town boards, on the one hand, and those who vote on school district budgets, on the other hand, are not similarly situated in all respects. This is critical because "'[t]he Constitution does not

40

require things which are different in fact or opinion to be treated in law as though they were the same'". Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). Town board members are elected officials voting on behalf of their constituents, while school district voters are individuals voting on behalf of themselves. The number of town board members are limited in number by New York State statute, see Town Law 20, 29 and 60, while any qualified voter in the district can vote on a school district budget. See Education Law 2012, 2022. Thus, in important and obvious respects, the comparison that plaintiffs seek to make in their Fourth Cause of Action is between apples and oranges. This is fatal to plaintiffs' claim since "[t]he Equal Protection Clause does not forbid classifications. It simply keeps governmental decision-makers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added). The two groups at issue in plaintiffs' Fourth Cause of Action -- town board members and school-budget voters -- are simply not alike in all relevant respects, thus, plaintiffs' equal protection claim founders on the shoals of the obvious dissimilarities between these two groups. See Matter of DaimlerChrysler Co., LLC v. Billet, 51 A.D.3d 1284, 1288 (3d Dept. 2008) (rejecting an equal-protection claim because "[i]n several key and obvious respects" the two groups being compared were "not 'alike' or similarly situated"). Additionally, town board members and school budget voters are not even treated differently under the statute. Rather, the tax cap's supermajority requirement applies to both, a point that plaintiffs are actually forced to concede because the statute is plain on its face. Ver. Comp., 48 (citing Education Law 2023-a[6]). As the U.S. Supreme Court has held, "[g]enerally speaking, laws that apply evenhandedly to all unquestionably comply with the Equal

41

Protection Clause." Vacco v. Quill, 521 U.S. 793, 800 (1997) (omits internal quotation). Since the tax cap laws supermajority provisions (Education Law 2023-a [6][a] and General Municipal Law 3-c [5]) apply to both local government governing boards voting to exceed the tax cap and to those who are voting on a school district proposed budget that would exceed the tax cap, plaintiffs' equal protection claim fails, as the gravamen of such a claim is treatment that is actually different, something that plaintiffs simply cannot establish here. See Casciani v. Nesbitt, 392 Fed. Appx. 887, 889 (2d Cir. 2010) (dismissing plaintiff's equal-protection claim since plaintiff was "not treated differently because the challenged ordinance was generally applicable"); Platt v. Inc. Vill. of Southampton, 391 Fed. Appx. 62, 65 (2d Cir. 2010) (rejecting an equal protection claim since the General Order complained of "applied to all officers", thus plaintiff "has not, and cannot, allege that he was 'treated differently than others similarly situated'"). Furthermore, even assuming for the purposes of argument that local government governing bodies and school tax voters are sufficiently similar for purposes of equal-protection analysis, plaintiffs' argument regarding the different effects that the super-majority requirement has on these two groups fails because the U.S. Supreme Court has held that "uneven effects" resulting from a statute do not cause a constitutional violation as long as there is a rational basis for combining the two groups into one class: Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. . . . The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 271-272 (1979). Here, it would be entirely rational for the State Legislature to treat the votes by a local governing body and school district

42

voters as falling into one classification since both can be categorized as involving budget approval. See Education Law 2023-a(6) and General Municipal Law 3-c (5). Thus, the fact that the tax cap's supermajority provisions may have some "uneven effects" on "particular groups within [that] class" is "of no constitutional concern." Id.; see also Silberman v. Biderman, 735 F. Supp. 1138, 1148 (E.D.N.Y. 1990) ("the test is not whether a classification generates a harsh result for an individual or group within a class, but rather the evenhandedness of treatment of the class itself"). Because the tax cap law's supermajority provisions unquestionably apply to local budget approval evenhandedly, they easily pass constitutional muster. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) ("[T]he State need not articulate its reasoning [for the classification] at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification.") (omit internal quotations). Moreover, plaintiffs cannot establish the second prong of their equal protection claim because they do not even allege that the State Legislature's intent in implementing the supermajority requirement of the tax-cap was based on impermissible considerations such as race, religion, alienage or gender. See generally, Ver. Comp. Rather, plaintiffs allege that the challenged provision interferes with a "fundamental liberty" related to voting. See, e.g., id., 237. The law, however, is otherwise. Although "[v]oting is of the most fundamental significance under our constitutional structure", the right to vote "in any manner and the right to associate for political purposes through the ballot are not absolute." Matter of Walsh v. Katz, 17 N.Y.3d 336, 343 (2011) (omits internal quotations). Rather, "'[s]tates play an active role in structuring and regulating their own elections.'" Id. (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986)). This

43

includes the ability of States to impose supermajority requirements for certain types of voting, including those related to school-budgets. In fact, the U. S. Supreme Court has addressed that exact issue on two occasions. In Gordon v. Lance, 403 U.S. 1 (1971), citing the federal Constitution's supermajority requirements,14 the U. S. Supreme Court rejected a challenge to a 60% affirmative vote requirement in a school tax and bond election. The crux of the holding in Gordon was that, because the supermajority requirement did not single out a "'discrete and insular minority' for special treatment" it did not violate the Equal Protection Clause. Gordon, 403 U.S. at 6. Thus, in Gordon, the Supreme Court held that it simply did not matter that the supermajority requirement caused the majority's voting power to be diluted because nothing "requires that a majority always prevail on every issue", and this specifically includes when making decisions about levying school taxes. Id. The high court held: Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. 403 U.S. at 5-6. One week after it decided the Gordon case, the U.S. Supreme Court held similarly in a summary affirmance in Brenner v. School District of Kansas City, Missouri, 403 U.S. 913 (1971). There the high court reviewed a three-judge federal panel's decision in Brenner v. School District of Kansas City, Missouri, 315 F. Supp. 627 (W.D.Mo. 1970). That lower court

14

For instance, the high court cited to "the provisions on impeachment and ratification of treaties" as examples of supermajority requirements that are built into the U.S. Constitution. Gordon, 403 U.S. at 6. It should also be noted here that Article VIII, 4 of the New York State Constitution requires a supermajority vote where a city school district in a city having a population of less than 125,000 inhabitants seeks to contract indebtedness above certain limits (see also Local Finance Law 104.00). These provisions are discussed fully in Point VI.

44

had addressed Missouri's constitutional and statutory provisions which required two-thirds voter approval for elections concerning school taxes and bond issues. At one election a school-tax proposal obtained a majority but fell short of the required two-thirds vote,15 and at another election a school-bond proposal suffered the same result. Brenner, 315 F. Supp. at 627-28. After an action was filed in federal district court to invalidate both measures on the ground that the two-thirds voter approval requirement violated the Equal Protection Clause and the "oneperson, one-vote" protection afforded by the U.S. Constitution, the three-judge federal panel dismissed the action and ruled that Missouri's supermajority voter approval requirements were constitutional. The three-judge court's reasoning foreshadowed the Supreme Court's Gordon decision in important ways. Like the Gordon court, the panel in Brenner distinguished prior U.S. Supreme Court voting cases on the ground that they dealt with statutes invidiously discriminating against classes of voters that were defined by their preexisting status (e.g., race, religion, poverty, place of residence), Brenner, 315 F. Supp. at 635-36, whereas "[t]he extraordinary two thirds majority requirement" related to Missouri's school-tax levies "obviously involves no possible classification until after all votes are cast and counted because no one can know who may have voted 'yes' or 'no' until that time. And even then, no one is supposed to know who voted which way." Id., 315 F. Supp. at 635, fn. 10. The U.S. Supreme Court obviously found that this reasoning complied with its Gordon decision since, when the high court summarily affirmed the Brenner holding, it simply cited back to Gordon. Brenner, 403 U.S. 913. Although no New York State court has ever addressed this supermajority voting issue, the same analysis used by the Brenner court has been adopted by other state courts. For instance,
Except for the fact that the super-majority requirement involved in this case is less stringent, i.e., 60%, Brenner involves the same factual scenario alleged regarding the school budgets that form the basis of this action. See Ver. Comp., 124.
15

45

an Arizona court properly noted that "an attack on a high-margin vote requirement is essentially an attack on a procedure or method of government -- a method which places a high premium on stability and consensus. The Equal Protection Clause, on the other hand, is vitally aimed at invidious discrimination against people, and groups of people. . . . There is no hint of invidious discrimination here [because to] . . . the extent that the idea of classification is relevant at all to this kind of weighted voting, the voter classifies himself, and only after he votes. A myriad of factors may have gone into his decision to vote yea or nay." In re Contest of Certain Special Election, 135 Ariz. 149, 153 (Ariz. Ct. App. 1982) (emphasis added). California's highest court has ruled similarly: "Because persons who vote in favor of tax measures may not be deemed to represent a definite, identifiable class, equal protection principles do not forbid 'debasing' their vote by requiring a two-thirds approval of such measures." Santa Clara County Local Transportation Authority v. Guardino, 11 Cal. 4th 220, 255 (Cal. Sup. Ct. 1995) (omits internal quotations). See also Walker v. Exeter Region Coop. Sch. Dist., 284 F.3d 42, 46 (1st Cir. 2002) ("[s]uper-majorities are not inherently unlawful for referenda").16 This exact same analysis applies directly to plaintiffs' Fifth and Sixth Causes of Action. There plaintiffs challenge the tax-cap's supermajority requirement on equal protection grounds because plaintiffs' votes are supposedly "undemocratically dilut[ed]" by being given only "2/3 the weight of those who oppose exceeding the cap." Ver. Comp., 240, 244. But these claims

The Washington State Supreme Court recently issued a decision involving a statute that required a supermajority when the state legislature voted on tax legislation; there the court held that the statute was unconstitutional under the state's constitution. See League of Educ. Voters v. State, 2013 Wash. LEXIS 150 (Wash. Feb. 28, 2013). But that decision can be readily distinguished from the line of cases relied upon by defendants here because was it based entirely upon a special provision of the Washington State Constitution that imposed a majority-only requirement for all legislation voted upon in the state legislature. League of Educ. Voters, 2013 Wash. LEXIS 150 at *2-*3, *16, *28. Here, as concerns voting on school taxes, no similar provision can be found in the New York State Constitution; thus, this Washington State case certainly does not impact the U.S. Supreme Court's decisions in Gordon and Brenner permitting supermajority requirements for school-tax referendums. See also Schulz v. Horseheads Cent. Sch. Dist. Bd. of Educ., 222 A.D.2d 819, 820 (3d Dep't 1995) (holding that pursuant to the New York State Constitution "petitioners do not have a constitutional right to vote on school district budgets").

16

46

fail because "'[t]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes'". Cheeseman v. Bellacosa, 130 A.D.2d 920, 922 (3d Dept. 1987) (emphasis added) (quoting San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 60-61 (1973) (Stewart, J., concurring)). Yet people of color, poor people, and people in different parts of any particular school district can be -- and most certainly will be -- on different sides of any particular school budget vote; thus, there is no discrete and objectively identifiable class of protected voters that are impacted by the tax cap's supermajority provision. Brenner, 315 F. Supp. at 635, fn. 10. In fact, the mandated secrecy of every school district ballot will make it absolutely impossible for plaintiffs to even identify the actual class of voters that was impacted by the supermajority provision. Id. Consequently, plaintiffs simply will not be able prove their equal-protection claims, and, for these reasons alone, their Fifth and Sixth Causes of Action must be dismissed as a matter of law. Brenner, 403 U.S. 913. Finally, turning back to the U.S. Supreme Court's decision in Brenner, the lower court's decision that was summarily affirmed is also important for another critical reason. That decision highlights that there is an entirely rational basis for the supermajority requirement in New York's tax-cap statute. On this point, it is well-established that when courts make this type of an equalprotection analysis, it is not something that is subject to a trial: "'A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.'" Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284, 291 (1999) (quoting Heller v Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted). With that noted, in Brenner, the court concluded that Missouri's supermajority provision was entirely rational because, at bottom, it only sought to ensure that a broad consensus would exist when school taxes were raised: "Missouri's two-third majority requirement reflects its choice of

47

decisional rule for a limited purpose election which is calculated to require that a strong consensus of all citizens be demonstrated before school bond and school levies are to receive approval." Brenner, 315 F. Supp. at p. 633. When the Second Circuit Court of Appeals addressed a requirement that a certain voter threshold must be met before a referendum could overturn a decision of a town's elected officials, it mirrored the analysis of the Brenner court decision by holding: "In Gordon, the 60% majority requirement served [the State's] rational, nondiscriminatory purpose of ensuring that tax increases . . . have extra public support." Gray v. Darien, 927 F.2d 69, 72 (2d Cir. 1991) (emphasis added). See also Adams v. Ft. Madison Community School Dist., 182 N.W.2d 132, 141 (Sup. Ct. Iowa 1970) (state's highest court found that a "rational and compelling bases exists" for a supermajority requirement that ensured that school-related referendums "rest on widespread consent rather than teetering on the knife-edge of a transient 51 per cent") (omits internal quotations). Moreover, courts have also recognized that supermajority requirements are entirely rational because they can be a proper fiscal tool for legislatures to use to keep costs in their states under control. See, e.g., id. ("The extra majority requirement, if a legislature chooses to employ it, is an effective tool for keeping fiscal affairs in hand."). Both of these reasons are entirely rational and apply equally well to New York's own tax cap supermajority provision. Not only does the provision in question ensure broad-based support for property tax increases above a certain level, but it also can be seen as an effective tool to limit property taxes that have increased by substantial margins in New York State in recent years. Indeed, it is entirely reasonable to conclude that the New York State Legislature was concerned that, between 1992 and 2009, statewide property tax levies doubled, with levies increasing 46% in the seven years prior to 2009. See New York State Department of Taxation and Finance,

48

Report on Property Taxes, located at http://www.tax.ny.gov/pit/property/learn/proptax.htm (last visited Mar. 15, 2013). Thus, since "a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification", Wing, 94 N.Y.2d at 290 (omits internal quotations), the statute at issue is constitutional and plaintiffs' federal and State equal-protection claims fail as a matter of law. In sum, the statute passes rational-basis review because, as the U.S. Supreme Court noted when it rejected another equal protection claim, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The U.S. Supreme Court's decisions in Gordon and Brenner addressing supermajority requirements, establish without doubt that, as concerns plaintiffs' Fourth, Fifth and Sixth Causes of Action, no fundamental right has been infringed upon and no suspect class has been unfairly treated. Consequently, these three Causes of Action must be dismissed.

RIGHT TO VOTE AND RIGHT TO FREE EXPRESSION IN PLAINTIFFS FIFTH AND SEVENTH CAUSES OF ACTION
POINT V PLAINTIFFS FIFTH CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE EDUCATION LAW 2023-a DOES NOT VIOLATE PLAINTIFFS RIGHT TO VOTE. . The three-judge panel in Brenner also addressed a claim similar to that asserted by plaintiffs in their Fifth Cause of Action, i.e., their "one-person, one-vote" claim. See, e.g., Ver. Comp., 240. Importantly, in Brenner, the federal court stated that the "one-person, one-vote" principle simply did not apply to school-tax levy referendums that necessitated supermajority approval:

49

The reapportionment cases ultimately speak to the issue of equality of representation, not equality of vote. . . . In the case of a . . . referendum . . ., the principle is inapposite, since the voters are deciding only whether they should tax themselves; full and effective participation already is guaranteed because the voters are exercising the franchise directly, rather than through representatives casting vicarious votes in the legislature. Since the consequences of electing a representative differ significantly from those of a . . . referendum, what is necessary to guarantee fairness in one should not be applied automatically to the other. . . . [Thus] the Supreme Court's articulation of the 'one-[person], one-vote' apportionment principle does not carry with it, either implicitly or explicitly, a federal Constitutional command that all State school bond and tax levy elections must be decided by a simple majority vote of the voters participating in such an election. Brenner, 315 F. Supp. at 635 (omits internal citations and quotations) (emphasis added). Plaintiffs Fifth claim fails, not only because the U.S. Supreme Court summarily affirmed the district court decision in Brenner, 403 U.S. 913, but because this same exact reasoning was later used by the high court in Lockport v. Citizens for Community Action at Local Level, Inc., 430 U.S. 259 (1977). There the U.S. Supreme Court stated that the "one-person, one-vote" analysis was simply inapplicable to what it called "'single-shot' referendum[s]": The equal protection principles applicable in gauging the fairness of an election involving the choice of legislative representatives are of limited relevance . . . in analyzing the propriety of recognizing distinctive voter interests in a "single-shot" referendum. In a referendum, the expression of voter will is direct, and there is no need to assure that the voters' views will be adequately represented through their representatives in the legislature. The policy impact of a referendum is also different in kind from the impact of choosing representatives -- instead of sending legislators off to the state capitol to vote on a multitude of issues, the referendum puts one discrete issue to the voters. Lockport, 430 U.S. at 266. The school district budget votes at issue in this action are precisely the type of "'single-shot' referendum[s]" that the high court was referring to in Lockport. Therefore, plaintiffs' "one-person, one-vote" claim fails as a matter of law. Id.17

17

The U.S. Supreme Court's decision in Lockport is still current law. See, e.g., Tigrett v. Cooper, 855 F. Supp. 2d 733, 756 (W.D. Tenn. 2012) ("[T]he Supreme Court recognized that the one person, one vote principle differs in cases involving referendum votes and those involving representative elections. . . . This Court declines Plaintiffs'

50

Similarly, insofar as plaintiffs' Fifth Cause of Action rests upon Article II, 1 of the New York State Constitution (see Ver. Comp., 238), this State claim falls under the weight of the Third Department's holding in Schulz v. Horseheads Cent. Sch. Dist. Bd. of Educ., 222 A.D.2d 819 (3d Dept. 1995). There, registered voters and taxpayers sought a declaratory judgment finding that an austerity budget adopted pursuant to Education Law 2023 violated Article II, 1 of the New York State Constitution, among other provisions. But the Third Department pointedly rejected that claim and held that Article II, 1 "was not intended to regulate the mode of elections, but rather the qualifications of voters" and that it was in fact "inapplicable to school district elections." Schulz, 222 A.D.2d at 820 (citing Matter of Blaikie v. Power, 13 N.Y.2d 134, 140 (1963); Turco v. Union Free School Dist. No. Four, 43 Misc. 2d 367 (Sup. Ct. Nassau Co. 1964), aff'd. 22 A.D.2d 1018 (2d Dept. 1964), lv. denied 16 N.Y.2d 483 (1965)). In fact, in Schulz, the Third Department went so far as to hold that "petitioners do not have a constitutional right to vote on school district budgets." Schulz, 222 A.D.2d at 820 (emphasis added). This authoritative precedent from the Third Department readily defeats plaintiffs' Article II, 1 claim in their Fifth Cause of Action, as well as any other school-voting claims based upon the New York State Constitution. In fact, plaintiffs' claim that the supermajority requirement of the Education Law 2023-a violates the N.Y. Constitution fails because the N.Y. Constitution itself contains a similar supermajority provision directly related to school districts. Specifically, Article VIII, 4 places limits on the ability of certain school districts to contract indebtedness. A court has described the general purpose of Article VIII, 4 as being a way to place limits on "borrowing and extravagance." People ex rel. Guar. Trust Co. v. Cook, 18 N.Y.S.2d 965, 968 (Nassau Co.

implicit invitation to overrule established Supreme Court precedent and will instead adhere to the principles articulated in Town of Lockport.").

51

Sup. Ct. 1940). However, under Article VIII, 4, a city school district in a city having a population of less than 125,000 is permitted to exceed the fixed limit on indebtedness imposed by that provision if, among other things, the school-district's voters approve the increase by a 60% supermajority. That provision states in relevant part: Except as otherwise provided in this constitution, no . . . school district described in this section shall be allowed to contract indebtedness for any purpose or in any manner which, including existing indebtedness, shall exceed an amount equal to the following percentages of the average full valuation of taxable real estate of such . . . school district: (h) any school district which is coterminous with, or partly within, or wholly within, a city having less than one hundred twenty-five thousand inhabitants according to the latest federal census, for education purposes, five per centum; provided, however, that such limitation may be increased in relation to indebtedness for specified objects or purposes with (1) the approving vote of sixty per centum or more of the duly qualified voters of such school district voting on a proposition therefor submitted at a general or special election, (2) the consent of The Regents of the University of the State of New York and (3) the consent of the state comptroller. The legislature shall prescribe by law the qualifications for voting at any such election. N.Y. Const., Art. VIII, 4. So there is a 60% supermajority provision -- one directly related to the fiscal affairs of school districts -- written right into the N.Y. Constitution itself. This fact puts the lie to plaintiffs' claim that the supermajority provision of the tax cap law violates the N.Y. Constitution. In fact, to sustain plaintiffs' claim would require this Court to reach the illogical conclusion that a provision in N.Y. Constitution is itself unconstitutional. Further, Local Finance Law 104.00[b][8], consistent with N.Y. Const., Art. VIII, 4., also provides that city school districts are limited in the amount of indebtedness they can incur: 5% of the average full valuation of the real property in the district. The law allows city school districts to exceed the statutory limit on indebtedness only with the approval of at least 60% of qualified voters in the districts: Notwithstanding the provisions of paragraph b of this section any school district in a city may issue bonds, bond anticipation notes or capital notes for a specific object or purpose, and, where authorized by this chapter, for a class of objects or

52

purposes, in an amount which, including existing indebtedness, shall exceed an amount equal to five per centum of the average full valuation of such school district, provided: 1. The tax voted to be collected in installments in relation thereto, or the proposition for the approval of a bond resolution or capital note resolution in relation thereto, shall have been voted or approved, as the case may be, by at least a sixty per centum vote of the qualified voters voting thereon in person at the meeting or election called for such purpose; ************* Local Finance 104.00 [c][1]. That statute also requires that consent to indebtedness in excess of the 5% limit also be obtained from the Board of Regents and the State Comptroller, further illustrating the States ascendant role in its education partnership with local school districts. See Point II, 1 supra. See also Local Finance Law 104.00[d] for similar provision addressing noncity school districts. Hence, plaintiffs' Fifth Cause of Action must be dismissed as being without merit. Oneperson-one-vote analysis is inapplicable to school districts referendums and elections; and the New York Constitution includes a similar supermajority requirement as does the States Local Finance Law concerning school district indebtedness. POINT VI SINCE THE BALLOT STATEMENT REQUIRED BY EDUCATION LAW 2023-a[6](b) ADVANCES THE STATE'S LEGITIMATE GOAL OF FOSTERING AN INFORMED ELECTORATE, AND SINCE THE SUPERMAJORITY REQUIREMENT DOES NOT VIOLATE PLAINTIFFS' RIGHT TO FREEDOM OF EXPRESSION, PLAINTIFFS' SEVENTH CAUSE OF ACTION MUST BE DISMISSED. Plaintiffs' Seventh Cause of Action alleges that the tax cap statute violates the First Amendment of the U.S. Constitution and Article I, 8 of the New York State Constitution. Specifically, plaintiffs challenge the portion of Education Law 2023-a[6](b) that requires that the following statement be printed on the ballot when the voters are being asked to vote on a

53

school district proposed budget that includes a tax levy that would exceed the tax cap: "Adoption of this budget requires a tax levy increase of ____ which exceeds that statutory tax levy increase limit of ____ for this school year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting." Ver. Comp., 248 (quoting Education Law 2023-a[6](b)). In essence, plaintiffs assert that this statement "is not viewpoint neutral and is meant to discourage voters from approving a proposal to exceed the tax cap." Ver. Comp., 249. Plaintiffs also seek to challenge the supermajority requirement of the tax cap on First Amendment grounds by claiming that it has "adverse funding consequences where a supermajority is not achieved" making it a "poison pill" that discourages "attempts to exceed the tax cap" and thus has a "chilling effect on [their] free expression and voting rights". Id., 25254. Plaintiffs Seventh Cause of Action is also without merit. Plaintiffs' challenge to the ballot language required by Education Law 2023-a(6)(b) fails because the State of New York has a valid reason for supporting the language: it provides a shorthand way to educate school-district voters about the budget proposal that is pending before them. In Matter of Avella v. Batt, 33 A.D.3d 77 (3d Dept. 2006), the Third Department noted that "the United States Supreme Court has repeatedly stated that 'it is beyond question' 'that [s]tates may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election -- and campaign -- related disorder'". Matter of Avella, 33 A.D.3d at 82-83 (emphasis added) (quoting Clingman v. Beaver, 544 U.S. 581, 593 (2005), quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). "Thus, when state electoral regulations . . . 'place[] no heavy burden on' First Amendment rights, ''a [s]tate's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions'". Id. (quoting Clingman, 544 U.S. at 593) (citation omitted). Thus when this Court examines the

54

ballot language required by Education Law 2023-a(6)(b), First Amendment strict scrutiny does not apply; rather, it must "weigh the 'character and magnitude' of the burden the State's rule imposes on [plaintiffs' First Amendment] rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary." Timmons, 520 U.S. at 358; see also Clingman, 544 U.S. at 593 (explaining that subjecting ordinary electoral regulations to strict scrutiny would "hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes").18 Preliminarily, defendants assert that plaintiffs' viewpoint-neutrality claim does not even apply here because the ballot is not considered to be a public forum. Timmons, 520 U.S. at 363 ("Ballots serve primarily to elect candidates, not as fora for political expression."); see also Rogers v. N.Y. City Transit Auth., 89 N.Y.2d 692, 699 (N.Y. 1997) ("'[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse'") (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (1985)). Indeed, as the Ninth Circuit has pithily noted, "[a] ballot is a ballot, not a bumper sticker." Rubin v. City of Santa Monica, 308 F.3d 1008, 1016 (9th Cir. 2002). So the brief and factual ballot statement that Education Law 2023a(6)(b) calls for does not violate the dictates of the First Amendment of the U.S. Constitution or Article I, 8 of the New York State Constitution because the statement is on a ballot which is not a public forum. This leads directly to the next crucial point: the ballot statement required by Education Law 2023-a[6](b) governs the ballot process; it does not regulate in any way the political

18

The U.S. Supreme Court generally applies heightened scrutiny in election-related cases only when "pure speech" is at issue, such as when a statute prohibits the payment of petition circulators, see Meyer v. Grant, 486 U.S. 414 (1988), or in the case of a ban on the distribution of anonymous campaign literature, see McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). These cases, however, are plainly inapposite to the ballot language at issue here.

55

speech of plaintiffs, so there is absolutely no "chilling effect" on the free expression of ideas. Indeed, irrespective of the statute, plaintiffs are free to engage in a vast assortment of fullthroated campaign activities favoring whatever school-tax measures they choose. They can speak out in public forums, including at school-board meetings, they can canvass neighborhoods with pamphlets favoring property-tax increases exceeding the tax cap, and they can purchase newspaper, radio and television advertising advancing their views. This is critically important because election-related statutes that only regulate what a State places on a ballot, while leaving open traditional channels of communication, are not subject to demanding justifications. See, e.g., Burdick v. Takushi, 504 U.S. 428, 439 (1992) (holding that the burden imposed on a State to justify banning write-in ballots was "slight" and therefore "the State need not establish a compelling interest to tip the constitutional scales in its direction"); and Timmons, 520 U.S. at 362-63 (holding that a State's ban on a person appearing on the ballot as the candidate of more than one party could prevent a party from "using the ballot to communicate to the public it supports a particular candidate who is already another party's candidate" but nonetheless a party had no right "to use the ballot itself to send a particularized message"). Indeed, the U.S. Supreme Court has even recognized that "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally." Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 191 (1999) (emphasis added). Along these same lines, the U.S. Supreme Court has also held that legislatures "should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights." Burson v. Freeman, 504 U.S. 191, 209 (1992) (omits internal

56

quotation). And "because a government has such a compelling interest in securing the right to vote freely and effectively," the U.S. Supreme Court "never has held a State 'to the burden of demonstrating empirically the objective effects on political stability that [are] produced' by the voting regulation in question." Burson, 504 U.S. at 208-209 (emphasis added) (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986)). Moreover, the U.S. Supreme Court has repeatedly held that "[t]here can be no question about the legitimacy of the State's interest in fostering informed and educated expressions of the popular will in a general election." Anderson v. Celebrezze, 460 U.S. 780, 796 (1983). Elsewhere, the high court has plainly stated that "the State has a legitimate interest in fostering an informed electorate". Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 228 (1989). Similarly, the court has further held that "a State has a compelling interest in protecting voters from confusion." Burson v. Freeman, 504 U.S. 191, 199 (1992). In the case at bar, these holdings are not only paramount -- they are absolutely determinative -- since fostering an informed electorate and protecting school-budget voters from confusion are entirely sufficient and rational justifications for the ballot language that is required by Education Law 2023a(6)(b). In fact, in Caruso v. Yamhill County, 422 F.3d 848 (9th Cir. 2005) cert. denied 547 U.S. 1071 (2006), the Ninth Circuit Court of Appeals approved a provision that is quite similar to the ballot language at issue in Education Law 2023-a[6](b). There, the plaintiff challenged an Oregon statute that required what was called a "three-percent warning" on ballot initiatives proposing to increase local property taxes. Whenever such an initiative impacting property taxes was placed on a ballot for voter approval, the Oregon statute under review required that the following language appear on the ballot along with the initiative: "This measure may cause

57

property taxes to increase more than three percent." Caruso, 422 F.3d at 851 (quoting Or. Rev. Stat. 280.070(4)(a)). Similar to plaintiffs' claim in their Seventh Cause of Action here, the plaintiff in Caruso alleged that this language resulted in a First Amendment violation. But after conducting a scholarly review of the U.S. Supreme Court's First Amendment law concerning elections and balloting, the Ninth Circuit dismissed the claim. First, the Ninth Circuit noted that "strict scrutiny" was not applicable to the plaintiff's claim and that rather a "'more flexible' standard" applied to this type of election law because "'common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.'" Caruso, 422 F.3d at 855 (quoting Burdick, 504 U.S. at 433). Second, the court noted that the Oregon statute passed constitutional muster because it regulated "the political process more than it [did] political speech" since the provision regulated "only what was said through the ballot itself." Caruso, 422 F.3d at 856 (citing Timmons, 520 U.S. at 362-63); Rubin, 308 F.3d at 1015 ("Courts will strike down state election laws as severe speech restrictions only when they significantly impair access to the ballot, stifle core political speech, or dictate electoral outcomes."). Third, the court noted that "[a]ll other means of communication, including the 'interactive' discussions for which First Amendment protection is 'at its zenith,'" fell outside the scope of the Oregon law. Caruso, 422 F.3d at 856. Finally, referring to the "three-percent warning" language as merely an "accurate reminder" to voters, id., 422 F.3d at 859, the appellate court then went on to hold that the law served the important State interest of informing the electorate of the tax-related impact of initiatives: The Supreme Court has consistently acknowledged states' legitimate interest in "fostering informed and educated expressions of the popular will." Anderson, 460 U.S. at 796; see, e.g., Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 228, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989); Jenness v. Fortson, 403 U.S. 431, 442, 29 L. Ed. 2d 554, 91 S. Ct. 1970 (1971). By requiring inclusion of the three-percent warning as a "shorthand designation" of an initiative's potential tax

58

consequences, [the Oregon statute] "plays a role in the process by which voters inform themselves for the exercise of the franchise." Cf. Tashjian v. Republican Party, 479 U.S. 208, 220, 93 L. Ed. 2d 514, 107 S. Ct. 544 (1986) (observing that "party labels provide a shorthand designation of the views of party candidates on matters of public concern") . . . Caruso, 422 F.3d at 861. Thus, the Ninth Circuit held that mandatory ballot language that warned voters of the "potential tax consequences" of a measure that could increase their property taxes by 3% did not encroach upon the First Amendment rights of those who favored such an increase. Id. Although the plaintiff in Caruso sought review before the U.S. Supreme Court, the high court found no reason to hear the case. Caruso, 547 U.S. 1071.19 Caruso is certainly instructive here. As in that case, Education Law 2023-a[6](b) in this case merely provides the State of New York with a reasonable means to present voters with an "accurate reminder" that an increase in their property taxes, exceeding a certain level, could result if they were to approve the school budget proposal pending before them. The notice also provides an "accurate reminder" to the public that the proposal before the voters needs at least 60% approval to pass. Fairly stated, the language required by Education Law 2023-a(6)(b) merely gives the facts and only the facts: "Adoption of this budget requires a tax levy increase of ____ which exceeds that statutory tax levy increase limit of ____ for this school year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting." Education Law 2023-a(6)(b). This single-sentence notice is the epitome
To the extent that the plaintiffs in this action will attempt to rely upon one of the cases cited to by the plaintiff in Caruso, i.e., the U.S. Supreme Court's decision in Cook v. Gralike, 531 U.S. 510 (2001), that reliance would fail here as it did in Caruso. In Cook, the Supreme Court addressed Missouri's requirement that, if a candidate for the U.S. Congress failed to support congressional term limits, a statement had to be placed on the ballot next to the candidate's name, i.e., "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS". Id., 531 U.S. at 514. But Cook simply does not apply here because when the Supreme Court found that this requirement was unconstitutional, it addressed the matter under the Tenth Amendment and the Elections Clause of the U.S. Constitution, not the First Amendment. Id., 531 U.S. at 527 n.20. Furthermore, the Supreme Court noted that the label could fairly be described as "pejorative," "negative," "derogatory," "'intentionally intimidating,'" "particularly harmful," "politically damaging," "a serious sanction," "a penalty," "official denunciation", and "the Scarlet Letter." Id., at 524-25. As the Ninth Circuit properly held in Caruso, none of these descriptions applied to a case of the same type now before this Court. See Caruso, 422 F.3d at 861.
19

59

of viewpoint neutrality: it briefly and truthfully states information relevant to the budget vote in a neutral manner; thus, even if the viewpoint-neutrality-in-a-public-forum rubric applied here, plaintiffs' claim would fail. Caruso is instructive here for added reasons. That decision explains why the State of New York, which has a significant and legitimate interest in keeping its voters well informed (see Eu, 489 U.S. at 228) must be permitted to respond to "the electoral process with foresight rather than reactively," Burson, 504 U.S. at 209, and this means that it must also be permitted to use the statement provided for in Education Law 2023-a[6](b) just as the State of Oregon did in Caruso: as a "'shorthand designation' of an initiative's potential tax consequences". Id., 422 F.3d at 861. And, as the Ninth Circuit held, this exact type of ballot language "neither restricts information nor handicaps initiatives." Id. For these same reasons, plaintiffs' claim that Education Law 2023-a[6](b) is not "viewpoint neutral" and supposedly has a "chilling effect" on their free-expression rights, see Ver. Comp., 249, 254, must fail as a matter of law. In their Seventh Cause of Action, plaintiffs also seek to challenge the supermajority requirement of the tax cap on First Amendment grounds by claiming that it has "adverse funding consequences where a supermajority is not achieved" making it a "poison pill" that discourages "attempts to exceed the tax cap" and thus has a "chilling effect on [their] free expression and voting rights". Ver. Comp., 252-54. These claims fare no better, as an en banc decision out of the Tenth Circuit Court of Appeals shows. In Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006),20 advocacy groups, politicians, and individuals sued state officials because Utah's State Constitution required

20

Although there was a divide on the en banc court on the issue of standing, ten of the eleven judges agreed on the merits of the First Amendment issue presented. Initiative, 450 F.3d at 1106 (dissenting opinion of three judges stating that they concur with the majority opinion that the supermajority requirement does not violate the First Amendment).

60

that wildlife initiatives obtain supermajority approval for passage. Similar to this action, plaintiffs there argued that this constituted "impermissible content discrimination" and imposed a "chilling effect" on the exercise of their First Amendment rights because it made it more difficult to pass such initiatives. The Tenth Circuit rejected that claim: "The Plaintiffs contend that Utah's supermajority requirement deters them from exercising their speech rights by making wildlife initiatives less likely to succeed. . . . We disagree . . . and affirm the district court's conclusion that the supermajority requirement does not implicate the First Amendment at all." Initiative, 450 F.3d at 1098-99. In so holding, the court refused plaintiffs' request to apply a "strict scrutiny" test. Id., 450 F.3d at 1099. Importantly, it also noted that there is "a crucial difference between a law that has the 'inevitable effect' of reducing speech because it restricts or regulates speech, and a law that has the 'inevitable effect' of reducing speech because it makes particular speech less likely to succeed." Id., 450 F.3d at 1100. The court found that the former implicated the First Amendment while the latter did not. Id. The heart of the court's holding, though, came when it examined the vast number of supermajority requirements that are enshrined into law across the United States, and it found that they do not impinge upon free expression because the First Amendment "ensures that all points of view may be heard; it does not ensure that all points of view are equally likely to prevail": Under the Plaintiffs' theory, every structural feature of government that makes some political outcomes less likely than others -- and thereby discourages some speakers from engaging in protected speech -- violates the First Amendment. Constitutions and rules of procedure routinely make legislation, and thus advocacy, on certain subjects more difficult by requiring a supermajority vote to enact bills on certain subjects. . . . [The court then cited numerous examples from around the Nation.] These provisions presumably have the "inevitable effect" of reducing the total "quantum of speech" by discouraging advocates of nuclear power plants, general banking laws, or unauthorized state flags from bothering to seek legislation or initiatives embodying their views. Yet if it violates the First Amendment to remove certain issues from the vicissitudes of ordinary democratic politics, constitutions themselves are unconstitutional. Indeed, the Plaintiffs'

61

theory would have the ironic effect of rendering the relief they seek in this litigation unconstitutional under the First Amendment: if it is unconstitutional to amend the Utah constitution to require a supermajority to approve a wildlife initiative, those who favor such an amendment would be less likely to engage in advocacy in its favor. No doubt the Plaintiffs are sincere in their many sworn statements that they find the heightened threshold for wildlife initiatives dispiriting, and feel "marginalized" or "silenced" in the wake of Proposition 5. Their constitutional claim begins, however, from a basic misunderstanding. The First Amendment ensures that all points of view may be heard; it does not ensure that all points of view are equally likely to prevail. Id., 450 F.3d at 1100-01(internal citations omitted) (emphasis added). This analysis is directly on point here and requires dismissal of plaintiffs' Seventh Cause of Action. A case from the Second Circuit Court of Appeals makes this conclusion even more compelling. Molinari v. Bloomberg, 564 F.3d 587 (2d Cir. 2009) is a First Amendment case in which the plaintiffs challenged the enactment of a local law that amended the New York City Charter to extend term limits for some officials beyond the limits imposed by a 1993 referendum. There the Second Circuit carefully reviewed the Tenth Circuit's analysis in Initiative and stated: "We believe that the Tenth Circuit's analysis is sound and equally applicable here." Molinari, 564 F.3d at 600. In a holding that definitively defeats the plaintiffs' last claim here, the Second Circuit quoted a portion of the Tenth Circuit's en banc decision with approval, a holding that recognized the important distinction between laws that stifled communication and laws that make passing legislation more difficult: Although the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise. . . . The distinction is between laws that regulate or restrict the communicative conduct of persons advocating a position in a referendum, which warrant strict scrutiny, and laws that determine the process by which legislation is enacted, which do not. Molinari, 564 F.3d at 599 (quoting Initiative, 564 F.3d at 1099-1100) (citation omitted).

62

Thus, the Second Circuit held that what matters is not whether a statute makes it more difficult for advocacy groups to eventually succeed in making their positions law, but whether or not "the communication of [their] ideas" is thwarted by the statute: Even if plaintiffs are correct that the enactment of Local Law 51 will make it more difficult for plaintiffs to organize voter initiatives and referenda in the future, "the difficulty of the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the [referendum process] is not affected." Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), cert. denied, 523 U.S. 1005, 118 S. Ct. 1188, 140 L. Ed. 2d 319 (1998). Molinari, 564 F.3d at 602. As noted above, the plaintiffs in the case at bar can participate in a full-throated campaign to raise school-tax levies above the tax cap. In fact, nothing stops them from using all forms of communication to advocate their positions all across the State. This is what matters because this is what the First Amendment protects. In sum, the First Amendment protects the right to speak, but it does not protect the right to speak effectively and successfully. See Smith v. Ark. State Highway Employees, 441 U.S. 463 (1979) (per curiam) ("The First Amendment right to associate and to advocate 'provides no guarantee that a speech will persuade or that advocacy will be effective.'") (quoting Hanover Township Fed'n of Teachers v. Hanover Cmty. Sch. Corp., 457 F.2d 456, 461 (7th Cir. 1972)). Thus, even if Education Law 2023-a(6)(b) in particular, and even if the supermajority requirement of the tax cap in general, makes it more difficult for plaintiffs' positions to succeed, this is irrelevant under a First Amendment analysis, since there is nothing stopping the plaintiffs from making their case to the voting public in whatever ways they might choose. Consequently, plaintiffs' Seventh Cause of Action must be dismissed.

63

POINT VII THE GOVERNOR, COMPTROLLER AND EDUCATION COMMISSIONER ARE NOT PROPER DEFENDANTS AND THE COMPLAINT SHOULD BE DISMISSED AS TO THEM. The plaintiffs have sued in their official capacities the Governor, the State Comptroller, and the State Education Commissioner in this declaratory action. Ver. Comp., caption, and 40-43. None of them is a proper defendant in this action. Caprio v New York State Dept. of Taxation & Fin., 37 Misc. 3d 964, 987-988 (Sup. Ct. N.Y. Co. 2012), appeal transferred 2013 N.Y. LEXIS 194, 2013 NY Slip Op 64324)(The sole basis offered by plaintiffs for naming Governor Cuomo as a party pertains to his duty under Article 4, section 3 of the New York State Constitution, which, in relevant part, provides that the Governor ...shall take care that the laws are faithfully executed .... Because plaintiffs have not set forth any allegations connecting Governor Cuomo to the claims raised in their complaint other than his general duty to enforce the laws of New York, the branch of defendants' motion seeking summary judgment dismissing the claims against Governor Cuomo is granted.). See also Patterson v. Carey, 83 Misc. 2d 372, 376 (Sup. Ct. Albany Co. 1975), affd. 52 A.D.2d 171 (3d Dept. 1976), modif. 41 N.Y.2d 714 (1977); Gaynor v. Rockefeller, 21 A.D.2d 92, 98-99 (1st Dept. 1964), affd. 15 N.Y.2d 120 (1965); cf. Cass v. State, 58 N.Y.2d 460, 463 (1983) (It is settled, however, that a declaratory judgment action in the Supreme Court is an appropriate vehicle for challenging the constitutionality of a statute [citation omitted]). In addition, the State is a proper party to such an action because of its obvious interest in and right to be heard on matters concerning the constitutionality of its statutes (CPLR 1012; cf. Weissman v Evans, 56 NY2d 458).). [I]n the context of governmental policies and programs which inevitably entail the involvement of numerous agencies, departments and officials, only those governmental entities

64

that are primarily responsible for the challenged policy are necessary parties. Joanne S. v Carey, 115 A.D.2d 4 (1st Dept. 1986); Brodsky v Selden Sanitary Corp., 78 A.D.2d 866 (2d Dept. 1980); see also Koss v. Regan, 149 A.D.2d 785 (3rd Dept. 1989). The Complaint lacks any allegations regarding the State Comptroller. This absence is unsurprising as the Comptroller lacks any enforcement authority under the challenged law. Therefore, the Comptroller is not a necessary party to this action, complete relief can be granted without his inclusion, and action as to the Comptroller should be dismissed. Cheevers v. State, 2002 N.Y. Slip Op. 50265(U) (Sup. Ct. Albany Co. 2002). Furthermore, the Comptroller and Education Commissioner are similarly situated to the Governor. There are no allegations in the Complaint linking either of them to Education Law 2023-a, except for very general references to their statutory duties, including the tax cap. Ver. Comp. 41-42. Plaintiffs fail to articulate any basis for treating them differently from the manner in which the Governor is treated under Caprio. All three officials should be dismissed from this action. CONCLUSION All of plaintiffs claims should be dismissed as a matter of law. Upon judicial review, legislative enactments enjoy a strong presumption of constitutionality as the products of a coordinate and co-equal branch of the government. For this reason, plaintiffs must establish their claim of unconstitutionality "beyond a reasonable doubt," the highest burden of proof that the American system of justice imposes on a party. See supra, pp. 6-7. In addition, to the extent that plaintiffs present a facial challenge to Education Law 2023-a, such challenges are disfavored by the courts. To succeed, plaintiffs must negate every

65

reasonable basis that supports the statute at issue. Faced with these combined requirements, plaintiffs cannot succeed and their Complaint should be dismissed as a matter of law. Article XI, 1 of the New York Constitution does not establish a cause of action for infringement of a supposed right to local control of education funding. XI claims should be dismissed as a matter of law. Plaintiffs equal protection claims should be dismissed based upon the applicable standard of review: rational basis. That standard is extremely deferential to legislative enactments such that plaintiffs can prevail only if they negate every conceivable state of facts which would support the statutes constitutionality. Merely stating that test demonstrates that the plaintiffs burden is a crushing one under which they can not possibly succeed. The rapid growth of property taxes in the State provides more than sufficient basis upon which the statute could be upheld. The ballot statement required by Education Law 2023-a serves a legitimate State interest in providing for an informed electorate. The supermajority requirement of the statute does not single out a discrete and insular minority for special treatment, and thus it does not violate the Equal Protection Clause. Plaintiffs claims of violation of the right to vote and to free expression fare no better. The "one-person, one-vote" principle simply does not apply to school district budget votes that necessitate supermajority approval. Furthermore, Article II, 1 of the New York Constitution was not intended to regulate the mode of elections, but rather the qualifications of voters and it is, in fact, inapplicable to school district elections. These considerations need bother the Court only if it finds that the plaintiffs have standing to present their various challenges. Defendants have established that - save for a single Thus, plaintiffs Article

66

claim for vote dilution based upon the statutes supermajority provision - plaintiffs do not have standing. But that claim, as are all others asserted, is dismissible under the substantive law presented herein. Dated: Albany, New York April 1, 2013 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The State of New York, Andrew M. Cuomo as Governor of the State of New York, Thomas P. DiNapoli as Comptroller of the State of New York, and John B. King, Jr., as Commissioner of the New York State Education Department The Capitol Albany, New York 12224-0341 By: ___

___________________

Stephen M. Kerwin Michael G. McCartin Laura Sprague Assistant Attorneys General, of Counsel Telephone: (518) 473-7184 Fax: (518) 402-2221 (Not for service of papers)

67