IS REBELLION NECESSARY
IN NEW YORK STATE?

Judge Edward O. Spain sits on the bench of the Appellate Division of the New York State Supreme Court, in Albany. This is one of four, regional, mid-level appeals courts.

On November 23, 1998, Judge Spain was hearing arguments for and against a motion to preliminarily prohibit one of the State’s public authorities from contracting debt on behalf of the State -- debt to be paid back with tax revenues and without voter approval and thus in violation of the State Constitution. The Legislature and the Executive, by enacting Chapter 5 of the Laws of 1998, had authorized the issuance of $240 million in 30-year bonds to finance the construction in Albany of two new State office buildings and a five-story parking garage for the cars of 2300 State employees.

The bonds were scheduled to be sold on the very day Judge Spain was hearing the arguments and were scheduled to be issued within two weeks after that. The ACTA people who brought the lawsuit were asking Judge Spain to sign an order to have the full court (5 judges) decide within a few days if the bond sale was to be stopped while the courts determined the underlying constitutional questions involved.

Judge Spain started the hearing by saying he was not inclined to sign the order because he felt the constitutional issues had all been settled by the State’s highest court, the Court of Appeals, which had taken the position in earlier cases of this type that the bonds were not legally enforceable and, therefore, not State debt within the meaning of the Constitution.

Judge Spain’s attention was then directed to Article VII, Section 16 of the New York Constitution which reads, "The Legislature shall annually provide by appropriation for the payment of the interest upon and installments of principal of all debts...created on behalf of the State...as the same shall fall due...if at any time the Legislature shall fail to make any such appropriation, the comptroller shall set apart from the first revenues thereafter received, applicable to the general fund of the state, a sum sufficient to pay such interest [and] installments of principle...and shall so apply the moneys thus set apart...The comptroller may be required to set aside and apply such revenues as aforesaid, at the suit of any holder of such bonds." (Editor’s emphasis).

The ACTA plaintiffs pointed out to Judge Spain that the phrase "all debts created on behalf of the State" means any and all debts -- anybody’s debts -- whether contracted directly by the State, by a public authority, or by Judge Spain himself. As long as that debt was contracted on behalf of the State, the Constitution directs the Legislature to appropriate the money needed to pay the bondholders in full, and if the Legislature fails to do so, the Constitution directs the comptroller to do so, and if the comptroller doesn’t do so, the Constitution directs the Judiciary to entertain a lawsuit by any bondholder for a writ of mandamus by the court compelling the comptroller to do so.

Are the bonds about to be issued by the State-created public authority somebody’s debt? -- anybody’s debt? Judge Spain agreed they were. Was the debt about to be contracted to build state office buildings and a state parking garage debt being "created on behalf of the State" and as authorized by a State statute? Again, Judge Spain agreed that it was.

ACTA plaintiffs then presented the argument to Judge Spain that, "this meant the bonds were legally enforceable, because any bondholder who wasn’t getting what was due him under the contractual and legislative provisions used to induce him to buy the bond, would be able to obtain from an independent judiciary a mandamus compelling the comptroller to pay. This protection extends to all holders of all debt instruments created on behalf of the State, regardless of the issuer."

Judge Spain had a photocopy of Article VII, Section 16 on his desk. He removed a pen from his pocket and appeared to circle the phrase, "all debts created on behalf of the State."

What happened next was remarkable. Judge Spain directly addressed the ACTA people, "Yes, I see." He paused, then said, "God bless you Mr. Schulz. What you do you do well. The people are indebted to you. But, somebody on high has decided to allow the Constitution to be circumvented so the State can borrow freely. Until they decide otherwise you will lose in court."

He turned to the attorneys for the State and asked. "When will it stop? In the extreme, there is no limit to the amount of debt the State can incur in this way, is there?" The attorneys merely shrugged their shoulders.

What happened next was equally remarkable. Bob Schulz was one of the ACTA people who took the matter to court. Stunned by what he had just heard, he contemplated for a few moments and then said, "Judge Spain, what I am about to say, I do not say lightly. I say it with a very heavy heart and in all seriousness. Based on what you have just said, that the Judiciary was cooperating with the Legislature and the Executive branches in a collective decision to deprive the people of the protection of their constitutional rights, I have no choice but to preach rebellion. The people are, and must remain, the source of all political power, so we elect Legislators, Governors and most Judges. But what we seem to be forgetting is that all of government in America is limited by written constitutions. Freedom means freedom from the unrestrained acts of government, not just freedom to worship and to speak and write freely and so forth. By the terms of the New York Constitution, the people have created the government with each of its three branches. By the terms of the New York Constitution the people not only enable the three branches to function but restrict what they can do. Judge Spain, you have said, in effect, that the Judiciary has decided to cooperate with the other two branches of the government, rather than act to keep them in their constitutional roles -- in other words, the Judiciary has agreed that the Constitution will be suspended. However, the Constitution is all that stands between the people and the unrestrained acts of government. Tyranny and despotism grow and flourish in such an environment. The type of interbranch cooperation you have described, Judge Spain, is one of the formal definitions of treason because it acts to destroy the very fabric of our democratic-republic, with its principles of ‘republicanism’: the idea that the people are sovereign, not the State; the idea that no authority shall, on any pretense whatsoever, be exercised over the people, but such as shall be derived from and granted by them; the idea that there shall be three independent, co-equal branches of government with a strict separation of powers."

Whereupon, Judge Spain said, "I’m going to issue this order. The full Court is to receive all papers by December 2, 1998. It will then decide within a few days if it will preliminarily enjoin the sale of the bonds." In deciding whether to issue an immediate Temporary Restraining Order to prevent the sale of the bonds before the full Court made its decision on or after December 2, Judge Spain asked the State’s attorneys about its schedule. Whereupon the State informed him that the State was canceling the bond sale until the Court’s decision is known.

As a result of ACTA’s lawsuits in recent years, we can point to a pattern of this kind of "treasonous" behavior -- decisions of the Judiciary confirming the right of the Legislature and Executive to stand the Constitution on its head, rendering it meaningless (see articles below). Unfortunately, these cases, while equally abhorrent, lacked the drama of the dialogue with Judge Spain, simply because the judges have chosen not to reveal their true feelings.

So, the question is, "What is and will remain the responsibility of the individual citizens who realize that the way our government is designed to work is in sharp contrast to the way it is working, and that their freedom from the unrestrained acts of government is being severely compromised and eroded by the government that more and more sees itself as sovereign?"

The citizens are in jeopardy. This is the issue. Is rebellion necessary? Some may think so. Maybe the future holds the possibility of this type of action. Debate is certainly necessary -- NOW. Enlightenment is not an option, it is a necessity. We at ACTA need, and will attempt, to play a role in surfacing the issue and getting the debate underway, possibly with a C-Span covered forum.

At the same time we need to increase the tempo of our activity in the courts. We need to be an organization that can confront governmental wrongdoing across the state and help to push the cause of an otherwise defenseless people, with all the necessary professional help. We need to be in a position where we can fight governmental organization, power and money with citizen organization, power and money. We need to continue to test the attitude of the Judiciary whenever and wherever government -- State or local -- has broken or attempts to break the constitutional chains that bind it. Either the Judiciary is going to protect our rights or it isn’t. The people need to know the full extent of the problem in order to know how to defend themselves.

In summary, with regard to the issues, the debate on the necessity for rebellion, and the organizational buildup, including statewide citizen vigilance centers, we know what is needed. The vision is crystal clear. Plans are underway. Stay tuned. Above all, remember that what needs to be done cannot happen without widespread support -- through people power. What we have in this country was dearly purchased, it should not be casually lost. It should be defended at all costs. To save permanent rights, temporary sacrifices are necessary.

ANOTHER EXAMPLE OF THE JUDICIARY’S "TREASONOUS" BEHAVIOR

The people are the source of all political power in local school districts, but local boards of education, along with all units of government (federal, state and local), are supposed to be limited by written constitutions. However, who among us has not seen the value of his vote on school budgets rendered meaningless?

Local boards of education are required to obtain approval by the people of the spending and taxing plan proposed by the Board for the ensuing fiscal year. However, very often even when the people voted "no," local governing boards of education impose a tax upon the people as if the people had voted it upon themselves.

What do the local boards of education cite as their authority to render a vote meaningless? They cite an Act of the State Legislature, Section 2023 of the N.Y.S. Education Law which reads in full, "If the qualified voters shall neglect or refuse to vote the sum estimated necessary for teachers’ salaries, after applying thereto the public school moneys, and other moneys received or to be received for that purpose, of if they shall neglect or refuse to vote the sum estimated necessary for ordinary contingent expenses, the sole trustee, board of trustees, or board of education may levy a tax for the same, in like manner as if the same had been voted by the qualified voters." (Editor’s emphasis).

We have documented cases where local boards of education: adopted budgets that were higher than the budget the people were asked to approve but voted down; adopted spending and taxing increases after the people, two or three times, voted "no" to the very same plan; and, admitted that because it knew the people would not approve a budget calling for an 8.5% tax increase, it had proposed a budget calling for a 12.5% increase, which, as expected by the board of education, was voted down, giving the board an opportunity to present a good front as it appeared to have applied the pruning shears before adopting, without voter approval, the 8.5% budget increase it desired all along.

ACTA people went to court over the "meaningless vote" issue, charging that Education Law 2023 should be nullified because it was depriving people of certain constitutional rights under the New York Constitution (Article I, Sections 6, 7 and 9.1) and under the United States Constitution (1st, 5th, 13th and 14th Amendments). Notably, the plaintiffs charged that Ed. Law 2023 should be nullified because it violated their fundamental right under the 1st Amendment to cast an effective vote, and their guarantee under the 14th Amendment that no state will be able to make or enforce a law which abridges any fundamental right.

On December 7, 1995, the Appellate Division of the N.Y.S. Supreme Court, in a decision written by Judge Karen Peters, dismissed the case, saying in relevant part. "[W]e find no merit. The challenged provision is reasonable in relation to its subject and adopted in the interest of the community."

The interests of the community are never served when the Judiciary cooperates with the Legislature to deprive the people of their constitutional rights, especially their right to a meaningful vote. After all, the vote is the cornerstone of our democratic republic. The only "community" whose interests are served by Ed. Law 2023 is the government education "monopoly." This is simply another case of "treasonous" behavior and judicial activism --judges making law.

...ANOTHER EXAMPLE...

Article IV, Section 4 of the United States Constitution guarantees the people in every state a government "republican" in form and substance. A strict "separation of powers," together with "popular sovereignty" are perhaps the most important of the republican principles upon which our system of governance was founded. These we are guaranteed. We are to enjoy the fruits of three separate, co-equal branches of government with high walls of separation, and checks and balances among the branches, with a primary role of each to assure that the other two branches remain within their proper constitutional framework.

This "separation of powers" principle appears in the New York Constitution in Article VI, Section 7 which reads, "The [New York] supreme court shall have general original jurisdiction in law and equity and the appellate jurisdiction herein provided." The separation of powers is implied throughout the Constitution. Keep this in mind as you read the following.

In 1992, ACTA people took the Commack (Long Island) Board of Education to State Supreme Court for using public funds to entice "yes" votes on a ballot proposition in which the people were being asked to approve of the District’s borrowing of $12 million for various construction and equipment projects. The Board’s attorneys immediately told the Court that it had to dismiss the case because the Court had no jurisdiction to hear the case in light of Education Law 2037, which reads, "All disputes concerning the validity of any district meeting or election or of any of the acts of the officers of such meeting or election shall be referred to the commissioner of Education for determination and his decisions in the matter shall be final and not subject to review."

On June 14, 1995, the highest court in the State, the Court of Appeals, in a decision written by Judge Howard Levine, ruled, "[U]nder Education Law 2037, exclusive original jurisdiction to determine the claim reside[s] in the State Commissioner of Education. Section 2037 states unequivocally that, ‘[a]ll disputes concerning the validity of any district...election...shall be referred to the commissioner of education for determination...The commissioner may in his [or her] discretion order a new...election’ (emphasis supplied)...The advantage of this course chosen by the Legislature is to provide an expeditious and more uniform resolution of these kinds of disputes."

This is another example of "treasonous" behavior and judicial activism.

The Legislature cannot give the Commissioner of Education (in the Executive Branch) exclusive original jurisdiction to determine claims against Boards of Education when the people have already placed the general original jurisdiction of all matters of law in the State Supreme Court (in the Judicial Branch). The Legislature cannot change the Constitution by passing a law, even if it were true (which is not the case) that by giving the Commissioner exclusive original jurisdiction the people are provided with a more "expeditious and uniform resolution of these kinds of disputes." Who among us has ever had an expeditious resolution of an "appeal" to the Commissioner? It is not uncommon for him to issue a ruling one to two years after the appeal is filed, and he almost never rules against the public education establishment over which he presides.

Neither does the law (Section 2037) nor the decision of Justice Levine have the power to delegate original jurisdiction of matters of law, provided by the Constitution, to the Commissioner of Education who is not a justice of the State Supreme Court.

Click here to see how some of our readers responded when asked the question:
Is rebellion necessary in New York State?