                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521358
________________________________

NEW YORK STATE UNITED TEACHERS,
   by its President, KAREN E.
   MAGEE, et al.,
                    Appellants,
      v                                     OPINION AND ORDER

STATE OF NEW YORK et al.,
                    Respondents.
________________________________


Calendar Date:   January 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Richard E. Casagrande, New York State United Teachers,
Latham, for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondents.

                             __________


Devine, J.

      Appeals (1) from an order of the Supreme Court (McGrath,
J.), entered October 3, 2014 in Albany County, which, among other
things, granted defendants' motion to dismiss the amended
complaint, and (2) from an order of said court, entered March 24,
2015 in Albany County, which, among other things, granted
defendants' motion to dismiss the second amended complaint.

      In 2011, the Legislature enacted "a comprehensive property
tax cap [to] help end the devastating impact of property taxes on
homeowners throughout New York" (Senate Introducer's Mem in
Support, Bill Jacket, L 2011, ch 97, at 16). Education Law
§ 2023-a was enacted as part of that legislation and provides
                               -2-                521358

that, "[u]nless otherwise provided by law, the amount of taxes
that may be levied by or on behalf of any school district, other
than a city school district of a city with [125,000] inhabitants
or more, shall not exceed" a tax levy limit as defined in that
section (Education Law § 2023-a [1]). The statute provides an
exception where a school district proposes a budget requiring a
property tax levy exceeding the limit, and that budget is
subsequently approved by a supermajority of at least 60% of
voters casting ballots (see Education Law §§ 2022, 2023-a [6]).

      Plaintiffs commenced this action in 2013, seeking a
declaration that the tax cap imposed by Education Law § 2023-a
was unconstitutional. In lieu of serving an answer, defendants
moved to dismiss the first amended complaint. The Legislature
created a real property tax freeze credit while that motion was
pending (see L 2014, ch 59, part FF), the purpose of which was to
provide a two-year income tax credit to eligible homeowners who
had paid real property taxes to school and municipal
jurisdictions that abided by the property tax cap and took
further steps to improve efficiency (see Education Law § 2023-b;
Tax Law § 606 [bbb]). Plaintiffs thereafter sought leave to
serve a second amended complaint that, among other things,
challenged the constitutionality of the tax freeze as well as the
tax cap.

      In an order entered in October 2014, Supreme Court
dismissed the first amended complaint and granted plaintiffs
leave to serve the second amended complaint. Following service
of the second amended complaint, defendants moved to dismiss it
for failure to state a cause of action. Supreme Court thereafter
issued an order in March 2015 that, among other things, granted
that motion. In so doing, Supreme Court rejected defendants'
contention that plaintiffs lacked standing to bring this action,
but determined that their claims uniformly failed to state a
cause of action. Plaintiffs now appeal from the October 2014 and
March 2015 orders.1


     1
        Any issues relating to the dismissal of the first amended
complaint are academic, as that "complaint was superseded by the
[second] amended complaint" (Gotlin v City of New York, 90 AD3d
                              -3-                521358

      Defendants argue as an alternative ground for affirmance
that plaintiffs lacked standing to bring suit. With regard to
the challenges to Education Law § 2023-a, the second amended
complaint alleges that the individual plaintiffs are all
taxpayers and that they voted for school district budgets in 2012
requiring property tax levies that exceeded the tax levy limit,
budgets that were supported by a simple majority of voters but
failed to achieve the supermajority required by Education Law
§ 2023-a (6). Plaintiffs accordingly claim that Education Law
§ 2023-a has impaired their constitutional rights, including the
"right to participate in the governance of their own schools,"
and has degraded their ability to provide school funding as they
see fit (Paynter v State of New York, 100 NY2d 434, 442 [2003]).
Applying the common-law standard for standing articulated in
Boryszewski v Brydges (37 NY2d 361, 364 [1975]), we agree with
Supreme Court that these allegations "gain [the individual
plaintiffs] standing to challenge the constitutionality of"
Education Law § 2023-a (Board of Educ., Shoreham-Wading Riv.
Cent. School Dist. v State of New York, 111 AD2d 505, 507 [1985],
lvs dismissed 66 NY2d 603, 854 [1985]; see Matter of Schulz v
State of New York, 81 NY2d 336, 344-345 [1993]; compare New York
State Assn. of Small City School Dists., Inc. v State of New
York, 42 AD3d 648, 651 [2007] [noting that "the parents and
students of individual school districts can challenge the
constitutionality of their school's funding"]). The individual
plaintiffs further allege that the tax freeze legislation
authorized "a wrongful expenditure, misappropriation,
misapplication, or . . . illegal or unconstitutional disbursement
of state funds" due to its allocation of those funds for a tax
credit, and such allegation affords them standing to challenge it
(State Finance Law § 123-b [1]; see Schulz v Silver, 134 AD3d
1139, 1371-1372 [2015], appeal dismissed 27 NY3d 939 [2016]).
Inasmuch as the individual plaintiffs have standing, we need not
go further and decide whether plaintiff New York State United
Teachers has organizational standing (see Saratoga County Chamber


605, 608 [2011]; see Chalasani v Neuman, 64 NY2d 879, 880
[1985]). We therefore focus our attention upon the dismissal of
the second amended complaint accomplished by the March 2015
order.
                              -4-                521358

of Commerce v Pataki, 100 NY2d 801, 813 [2003], cert denied 540
US 1017 [2003]).

      Turning to the arguments advanced by plaintiffs, in the
context of a motion to dismiss for failure to state a cause of
action, "[w]e accept the facts as alleged in the complaint as
true, accord plaintiffs the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit
within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,
87-88 [1994]; see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21
NY3d 324, 334 [2013]). Legislative acts nevertheless "enjoy a
strong presumption of constitutionality[, and] . . . parties
challenging a duly enacted statute face the initial burden of
demonstrating the statute's invalidity beyond a reasonable doubt"
(LaValle v Hayden, 98 NY2d 155, 161 [2002] [internal quotation
marks and citations omitted]; see Schulz v State of N.Y. Exec.,
134 AD3d 52, 55 [2015], appeal dismissed 26 NY3d 1139 [2016]).

      Plaintiffs allege that Education Law § 2023-a and the tax
freeze legislation run afoul of NY Constitution, article XI, § 1
(hereinafter the Education Article), which directs the
Legislature to "provide for the maintenance and support of a
system of free common schools, wherein all the children of this
state may be educated." The Education Article does not require
that equal educational offerings be provided to every student,
but does mandate defendant State of New York "to offer all
children the opportunity of a sound basic education" (Campaign
for Fiscal Equity v State of New York, 86 NY2d 307, 316 [1995];
see Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d 279, 283 [1995]; Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d 27, 47-48 [1982], appeals dismissed 459
US 1138, 1139 [1983]). As a result, even "gross educational
inequities" will not give rise to a claim under the Education
Article, and a plaintiff must allege "the deprivation of a sound
basic education, and causes attributable to the State" in order
to state a claim (New York Civ. Liberties Union v State of New
York, 4 NY3d 175, 178-179 [2005]).

      Plaintiffs acknowledge in their second amended complaint
that they are not "seek[ing] to establish any specific . . .
failure to provide a sound basic education" as a result of the
                              -5-                521358

challenged legislative acts. They nevertheless suggest that
their claim is viable because the Education Article acknowledges
that "a system of local school districts exists and will continue
to do so because the residents of such districts have the right
to participate in the governance of their own schools" (New York
Civ. Liberties Union v State of New York, 4 NY3d at 181 [internal
quotation marks and citation omitted]; accord Paynter v State of
New York, 100 NY2d at 442). It is true that "the Education
Article enshrined in the Constitution a state-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'" (Paynter v State of
New York, 100 NY2d at 442, quoting Board of Educ., Levittown
Union Free School Dist. v Nyquist, 57 NY2d at 46). That being
said, the provision is intended to ensure that education is "a
responsibility of the State" (New York Civ. Liberties Union v
State of New York, 4 NY3d at 182), and fundamentally protects
against failures by the State to provide "adequate instruction
and facilities" commensurate with that responsibility (Paynter v
State of New York, 100 NY2d at 442; see Campaign for Fiscal
Equity v State of New York, 100 NY2d at 922). Plaintiffs
therefore state a viable Education Article claim only if they
allege that the challenged legislation so impaired local
financing ability that it implicated the State's "duty . . . to
provide funding sufficient to bring the educational inputs
locally available up to a minimum standard" (Paynter v State of
New York, 100 NY2d at 442; see New York Civ. Liberties Union v
State of New York, 4 NY3d at 182; Campaign for Fiscal Equity,
Inc. v State of New York, 100 NY2d at 922; Reform Educ. Fin.
Inequities Today [R.E.F.I.T.] v Cuomo, 86 NY2d at 283-284). They
have made no effort to do so and, as such, their Education
Article claim fails.

      Plaintiffs next assert that Education Law § 2023-a and the
tax freeze legislation deprive school children of their right to
equal protection under the law. Education is not a fundamental
right under either the Federal or State Constitutions and, absent
any allegation that the challenged legislation discriminates
against a suspect class, binding precedent establishes that "the
rational basis test [is] the appropriate standard" (Campaign for
Fiscal Equity v State of New York, 86 NY2d at 320; see San
                              -6-                521358

Antonio Independent School Dist. v Rodriguez, 411 US 1, 40-44
[1973]; Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo,
86 NY2d at 285). The rational basis test is not demanding, and a
statute will pass muster under it unless a challenger meets "the
tremendous burden of demonstrating that no facts can reasonably
be conceived to show the existence of a rational basis in support
of some legitimate state interest in drawing the distinction"
(Sullivan v Paterson, 80 AD3d 1051, 1053 [2011]; see People v
Knox, 12 NY3d 60, 69 [2009], cert denied 558 US 1011 [2009]).
The burden further rests on the challenger to rebut the
presumption of validity and "negative every conceivable basis
which might support [the challenged legislation] . . . whether or
not the basis has a foundation in the record" (Affronti v
Crosson, 95 NY2d 713, 719 [2001] [internal quotation marks,
emphasis and citations omitted]; see Sullivan v Paterson, 80 AD3d
at 1053).

      Defendants suggest, and plaintiffs do not dispute, that
Education Law § 2023-a and the tax freeze legislation were
designed with the legitimate goal in mind of restraining onerous
property tax increases that were believed to be depressing
economic activity in the State (see e.g. Senate Introducer's Mem
in Support, Bill Jacket, L 2011, ch 97, at 16). Plaintiffs
suggest that it is irrational to achieve this legitimate aim in a
manner that impairs local control of schools and deters poorer
school districts that would otherwise seek a property tax
increase over the tax cap to keep pace with educational needs.
It suffices to say that, while Education Law § 2023-a and the tax
freeze legislation incentivize districts and their residents to
avoid property tax increases over the tax cap, neither prevents
such increases if sufficient community support exists for them
(see Education Law § 2023-a [6]). The differences in the
services offered by various school districts accordingly result
from a permissible consequence of local control over schools,
namely, the variable "willingness of the taxpayers of [different]
districts to pay for and to provide enriched educational services
and facilities beyond what the basic per pupil expenditure
figures will permit" (Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d at 45). Inasmuch as there is nothing
irrational in this, plaintiffs' equal protection claims fail (see
San Antonio Independent School Dist. v Rodriguez, 411 US at 54-
                              -7-                521358

55; Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d at 284-285; Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d at 44-47).

      Plaintiffs lastly argue that Education Law § 2023-a and the
tax freeze legislation offend the guarantee of due process
afforded by the State and Federal Constitutions (see US Const
5th, 14th Amends; NY Const, art I, § 6). "Protection for certain
fundamental rights is implicit within" those guarantees, and "[a]
law that impinges upon a fundamental right is subject to strict
scrutiny, whereas one that does not 'burden a fundamental right
. . . is valid if it bears a rational relationship to [a
legitimate governmental] interest'" (Samuels v New York State
Dept. of Health, 29 AD3d 9, 13 [2006], affd sub nom. Hernandez v
Robles, 7 NY3d 338 [2006], quoting Hope v Perales, 83 NY2d 563,
575 [1994]; see Washington v Glucksberg, 521 US 702, 719-721
[1997]). Plaintiffs point to two fundamental rights that are
purportedly implicated here, the right to vote and the right to
free speech.

      Plaintiffs assert that the fundamental right to vote is
impaired by the supermajority requirement imposed by Education
Law § 2023-a (6), but they are incorrect (see Golden v Clark, 76
NY2d 618, 624 [1990]). A supermajority requirement passes
constitutional muster unless it "discriminate[s] against or
authorize[s] discrimination against any identifiable class," and
nothing of the sort is alleged here (Gordon v Lance, 403 US 1, 7
[1971]; see Gray v Town of Darien, 927 F2d 69, 72 [2d Cir 1991],
cert denied 502 US 856 [1991]). Plaintiffs further argue that
the right to free speech is implicated by the tax freeze
legislation, which will only grant an income tax credit to
individuals in school districts that have enacted budgets
complying with the tax cap imposed by Education Law § 2023-a
(see Education Law § 2023-b [2]). Plaintiffs point out that
"[t]o deny an exemption [or credit] to [individuals] who engage
in certain forms of speech is in effect to penalize them for such
speech" (Speiser v Randall, 357 US 513, 518 [1958]; see Rumsfeld
v Forum for Academic and Institutional Rights, Inc., 547 US 47,
59 [2006]), but taxpayers remain free to vote as they wish in
school budget elections, and their individual vote (or nonvote)
will have no direct role in deciding their access to the tax
                              -8-                521358

credit here. Under these circumstances, taxpayers in school
districts where budgets with tax levies exceeding the property
tax cap are proposed and adopted "are not being denied a tax
[credit] because they engage in constitutionally protected
activities, but are simply being required to pay for [school
property taxes] entirely out of their own pockets" rather than
receiving a subsidy to offset those costs (Cammarano v United
States, 358 US 498, 513 [1959] [emphasis added]; see Leathers v
Medlock, 499 US 439, 450-453 [1991]; Regan v Taxation with
Representation of Washington, 461 US 540, 546 [1983]). Given
that no fundamental rights are implicated by Education Law
§ 2023-a and the tax freeze legislation – and both are rationally
related to the legitimate government interest of restraining
crippling property tax increases – plaintiffs' substantive due
process claims were properly dismissed.

      Plaintiffs' remaining contentions, to the extent that they
are properly before us, have been examined and rejected.

     McCarthy, J.P., Garry and Clark, JJ., concur.


Lynch, J. (concurring in part and dissenting in part).

      I respectfully dissent from that part of the majority that
dismissed plaintiffs' claims under NY Constitution, article XI, §
1 (hereinafter the Education Article) and the Equal Protection
Clause. As plaintiffs candidly concede in their brief, a claim
seeking additional state funding must allege that defendant State
of New York has failed to provide the funding necessary for a
sound basic education (see Board of Educ., Levittown Union Free
School Dist. v Nyquist, 57 NY2d 27 [1982], appeals dismissed 459
US 1138, 1139 [1983] [hereinafter Levittown]). No such claim is
being made here. Instead, plaintiffs maintain that the tax cap
and tax freeze credit enacted under Education Law §§ 2023-a and
2023-b unconstitutionally compromise their rights to local
control over education funding. This is, as plaintiffs concede,
a novel argument. Keeping in mind the procedural posture of this
case, it is my view that plaintiffs have stated viable claims.

     Under the challenged legislation, a school district may not
                              -9-                521358

adopt a budget above a statutory "cap" – generally the lesser of
2% or the rate of inflation – without the approval of a
supermajority of 60% of the voters (see Education Law § 2023-a).
For a school district that adopts budgets within the tax cap, its
taxpayers are eligible for a tax freeze credit (see Education Law
§ 2023-b). When a school district endeavors to adopt a budget in
excess of the cap but fails, even upon resubmission to the
voters, the district must levy a tax no greater than the tax
levied in the prior school year (see Education Law § 2023-a [8]).

      The majority has determined that plaintiffs' failure to
seek additional funding is fatal to their claim under the
Education Article. As the Court of Appeals recognized in Paynter
v State of New York (100 NY2d 434 [2003]), however, the Court has
"had no occasion to delineate the contours of all Education
Article claims" (id. at 441; see New York Civ. Liberties Union v
State of New York, 4 NY3d 175, 180 n 2 [2005]).

      Education funding in New York derives from a dual system of
local and state funding that dates back more than two centuries
(see Campaign for Fiscal Equity v State of New York, 86 NY2d 307,
326-327 [1995] [Levine, J., concurring]). Notwithstanding the
resulting economic disparity between school districts throughout
the State, the Court of Appeals upheld the constitutionality of
this system in Levittown. Applying the rational basis standard
delineated by the Supreme Court of the United States in San
Antonio Independent School Dist. v Rodriguez (411 US 1 [1973]),
the Court observed in Levittown "that the justification offered
by the State – the preservation and promotion of local control of
education – is both a legitimate State interest and one to which
the present financing system is reasonably related" (Board of
Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d at
44; see Campaign for Fiscal Equity v State of New York, 86 NY2d
at 319-320). In Paynter, the Court elaborated:

           "[T]he Education Article enshrined in the
           [NY] Constitution a state-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
                              -10-               521358

           operating their own schools . . . . The
           aim of the [Education] Article was to
           constitutionalize the established system
           of common schools rather than to alter its
           substance" (Paynter v State of New York,
           100 NY2d at 442 [internal quotation marks
           and citations omitted]).

Through this structure, the State's constitutional obligation is
to provide the additional funding that local school districts
need to provide students with a sound basic education.

      Our inquiry is not limited to a question of minimal
funding. Rather, the focus must be on the ability of a local
school district to provide funding for enriched educational
programs that go beyond the bare minimum (see Board of Educ.,
Levittown Union Free School Dist. v Nyquist, 57 NY2d at 45-46).
Plaintiffs persuasively argue that the Education Article embraces
and protects their rights to provide such funding. Pertinent to
this point, the Court of Appeals cautioned in Levittown:

           "Any legislative attempt to make uniform
           and undeviating the educational
           opportunities offered by the several
           hundred local school districts – whether
           by providing that revenue for local
           education shall come exclusively from
           State sources to be distributed on a
           uniform per pupil basis, by prohibiting
           expenditure by local districts of any sums
           in excess of a legislatively fixed per
           pupil expenditure, or by requiring every
           district to match the per pupil
           expenditure of the highest spending
           district by means of local taxation or by
           means of State aid (surely an economically
           unrealistic hypothesis) – would inevitably
           work the demise of the local control of
           education available to students in
           individual districts" (id.).
                              -11-               521358

In my view, the foregoing principles confirm that the right of
local control is a protected interest under the Education Article
that may not be compromised by undue State interference.

      It bears further emphasis that, in San Antonio, the Supreme
Court of the United States expressly declined to address the
constitutionality of a state law establishing a maximum tax rate
for school districts because no claim was made that the statutory
ceiling barred any desired tax increases (San Antonio Independent
School Dist. v Rodriguez, 411 US at 50 n 107). Here, in
contrast, plaintiffs have asserted that the tax cap and tax
freeze credit have, in effect, compromised their ability to
enhance the services offered to their students. Plaintiffs
further allege that the disparity in funding between wealthy and
poor school districts throughout the State is exacerbated by the
cap/credit. We thus have before us a constitutional claim
comparable to that reserved for another day in San Antonio.

      With respect to the equal protection claim, plaintiffs'
basic argument is that students receiving a public education in
wealthy districts have a greater ability to enjoy enhanced
educational opportunities than similarly situated students
receiving a public education in poor districts. By their
complaint, plaintiffs maintain that the wealthiest school
district in New York has more than 50 times the taxable wealth of
the average district, while the poorest district has less than
19% of the taxable wealth of the average district. It is this
wealth-based classification that plaintiffs assert has no
rational relationship to our State's education funding structure
(see Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d 279, 285 [1995]).

      The applicable standard is whether there is a rational
basis for the tax cap and credit (see San Antonio School Dist. v
Rodriguez, 477 US at 40-44; Campaign for Fiscal Equity v State of
New York, 86 NY2d at 314, 320; Board of Educ., Levittown Union
Free School Dist. v Nyquist, 57 NY2d at 41, 43-46). Here,
according to defendants, the Legislature had a rational basis to
enact the challenged legislation because New York had the highest
local property taxes in the country as a percentage of personal
income and it was necessary to reduce this burden and,
                              -12-                 521358

correspondingly, to enhance economic activity in the State.
While this objective certainly has great statewide significance,
it is difficult to discern how it bears any rational relationship
to the access that all publicly educated children have to the
funds available for public education. Given the asserted
impediment to local control, we cannot conclude, as in Levittown,
that the legislation is rationally related to "the permission and
encouragement of participation in and control of public schools
at the local district level" (Board of Educ., Levittown Union
Free School Dist. v Nyquist, 57 NY2d at 41). For purposes of
this motion, it is fair to assume a correlation between the
"amounts of money expended and the quality and quantity of
educational opportunity provided" (id. at 41 n 3). With the
conceded disparate funding, compounded by the fact that taxpayers
within the poorer school districts end up subsidizing, at least
in part, the tax credits granted to taxpayers within the
wealthier districts, I find that plaintiffs have stated a viable
equal protection claim (see Hargrave v Kirk, 313 F Supp 944, 946
[MD Fla 1970], vacated on other grounds sub nom. Askew v
Hargrave, 401 US 476 [1971]).



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
