ANY day now, state Supreme Court Justice Leland DeGrasse is expected to issue a ruling in the Campaign for Fiscal Equity (CFE) school-aid case.
He may well order Albany to pony up some $30 billion for Gotham's schools. But the impact will be more than just fiscal. It's a major constitutional revolution, too - which is why the state needs to fight DeGrasse to the end.
In 2003, the state's highest court upheld part of DeGrasse's original ruling, ordering the state government to re-jigger the funding system for education.
The state did nothing. So DeGrasse got the ball back last summer. He appointed three experts to suggest a plan; in November, those referees recommended $30 billion in new spending over five years.
But this month state Attorney General Eliot Spitzer, representing the state, formally questioned the courts' right to order Albany to hike school spending.
"There is no precedent in New York for any court directly ordering the expenditure of funds," Spitzer said in a court brief. "Such an order would be antithetical to the notion of separation of powers, one of the cornerstones of the democratic governments of both our nation and its states."
What happens if DeGrasse goes ahead and does it anyway?
No one knows.
But the state clearly has grounds for appeal. For starters, New York's Constitution expressly assigns budget and spending powers to the Legislature and governor, not the courts. As Spitzer notes, the state's top court (the Court of Appeals) has recognized the "dangers of upsetting the delicate balance of power existing among the three [branches] of government."
"History teaches that a foundation of free government is imperiled when any one of the co-ordinate branches . . . interferes with another," the court, in cases dating back to 1898, has said.
In a ruling just LAST month, it noted that the judiciary was "arguably the worst" of the three branches when it comes to budget-making.
Even in the CFE case itself, the high court appeared leery of a judicial mandate for a specific funding amount. "We have neither the authority, nor the ability, nor the will to micromanage education funding," it wrote in its '03 decision.
It also noted that the plaintiffs were asking only for "guidelines to the Legislature" and "directing . . . that the necessary resources be provided." And even this limited request, the court said, was "problematic."
In any event, nowhere did the court specify an amount to be spent, nor authorize the lower court to mandate an amount.
Yet DeGrasse boldly ordered his referees to come up with a number. Now he may use their figure as a basis to order new funding.
The fiscal irresponsibility in the referees' figure, $30 billion, shows exactly why courts are generally discouraged from state-budgeting functions. And if DeGrasse endorses his referees, the top court might well demur.
Of course, it might not. After all, its 2003 decision was rife with contradictions, so nothing it does should surprise. The justices may well feel that they can't allow the Legislature to simply ignore their own ruling, which required a new state funding plan.
But having judges take control of the state budget - and order new yearly spending on the order of more than 10 percent of current state outlays - is also a radical, worrisome and constitutionally explosive.
If DeGrasse appoints himself king and tries to force Albany to accept his number, Gov. Pataki - and Spitzer, on his behalf - at the least, should waste no time in appealing. And the higher state courts should be very, very cautious about backing up DeGrasse's power play.