In the Matter of Town of North Hempstead, Appellant-Respondent,v.County of Nassau, Respondent-Appellant.BriefN.Y.September 10, 2014State of New York Court of Appeals BRIEF FOR AMICUS CURIAE TOWN OF HUNTINGTON DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, Second Department, Docket No. 2011-09018 Supreme Court, Nassau County, Index No. 6734/11 In the Matter of the Application of the TOWN OF NORTH HEMPSTEAD, Plaintiff-Petitioner-Appellant-Respondent, For a Judgment Pursuant to Section 3001 and Article 78 of the Civil Practice Law and Rules -against- COUNTY OF NASSAU, Defendant-Respondent-Respondent-Appellant. TO BE SUBMITTED BY: APL-2013-00253 DEIRDRE M. BUTTERFIELD CINDY ELAN-MANGANO HUNTINGTON TOWN ATTORNEY BY: DEIRDRE M. BUTTERFIELD Attorney for Amicus Curiae Town of Huntington 100 Main Street Huntington, New York 11743 (631) 351-3042 Date Completed: August 7, 2014 i TABLE OF CONTENTS TABLE OF CONTENTS............................................................................................i TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF THE AMICUS CURIAE...................................................................1 COUNTERSTATEMENT OF QUESTIONS PRESENTED....................................4 PRELIMINARY STATEMENT ...............................................................................6 ARGUMENT .............................................................................................................7 POINT I EDUCATION LAW §6305 AUTHORIZES COUNTIES TO SEEK REIMBURSEMENT FOR FIT-RELATED CHARGES FROM THE STATE AND ONLY THE STATE ......................................................7 POINT II EDUCATION LAW 6305(5) SHOULD BE DEEMED REPEALED BY IMPLICATION .......................................8 CONCLUSION........................................................................................................11 ii TABLE OF AUTHORITIES Cases: Association of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (C.A.D.C.1994)..........................................................................................................8 Bowen v. Lease, 1843 WL 4519 (N.Y. Sup. Ct. 1843)..............................................9 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) .......................................................................8 Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661, 127 S. Ct. 2518, 2531, 168 L. Ed. 2d 467 (2007)..................................................8, 9 People ex rel. Bronx Parkway Comm'n v. Common Council of City of Yonkers, 229 N.Y. 1, 127 N.E. 593 (1920)................................................................9 People v. Mann, 31 N.Y.2d 253, 288 N.E.2d 595 (1972) .......................................10 Town of N. Hempstead v. County of Nassau, 102 A.D.3d 800, 802 (2d Dept. 2013), lv to appeal granted, 21 N.Y.3d 864 (2013) ..................................................1 Statutes: 1994 N.Y. Laws, ch. 170 (217th Session – 1994) ......................................................7 Education Law §6305(5)......................................................................1, 4, 5, 6, 9, 10 Education Law §6305(10)................................................................2, 3, 4, 6, 7, 9, 10 1 INTEREST OF THE AMICUS CURIAE This brief is submitted on behalf of the Town of Huntington (“Huntington”) as amicus curiae. Huntington is one of ten towns located in Suffolk County, New York, significantly impacted by the decision of the Appellate Division, Second Department from which this appeal is taken. Pursuant to Education Law §6305(5), the Suffolk County Legislature adopted Resolution No. 732-2012, “Authorizing a Charge Back For The Out-Of- County Tuition”1 in 2012, which authorized the County to charge back to its towns a proportionate share of costs incurred by the County for town residents attending community college outside of Suffolk. This resolution, which is still in effect, specifically excludes costs associated with third and fourth year students and Masters Degree Students attending the Fashion Institute of Technology (“FIT”). In Town of N. Hempstead v. County of Nassau, 102 A.D.3d 800, 802 (2d Dept. 2013), lv to appeal granted, 21 N.Y.3d 864 (2013), the Second Department held that pursuant to Education Law, Section 6305(5), Nassau County is entitled to charge back the Town of North Hempstead (“North Hempstead”) for amounts paid by the county to FIT for North Hempstead town residents enrolled in two-year, four-year, and graduate programs at FIT. Residents of Huntington and of other towns, particularly in the Nassau-Suffolk area, have been forced to bear a financial 1 Suffolk County Resolution No. 732-2012, available at: http://legis.suffolkcountyny.gov/Resos2012/i1807-12.pdf. 2 burden that was mandated by statute to be borne by New York State residents generally, contrary to the intent of the New York State Legislature when it enacted Education Law §6305(10) in 1994. The towns, cities, and counties, particularly those located downstate, are unfairly burdened as a consequence of the Second Department’s determination, which exposes downstate residents to a greater tax burden than was intended by the New York State Legislature when it enacted Education Law §6305(10) in 1994. Clearly, if the tax burden for FIT is spread out across the State of New York, as was intended by the State Legislature, the impact upon downstate counties, towns and cities will be substantially diminished. FIT more closely resembles the SUNY system than a community college because it has four-year and graduate degree programs therefore it is more properly a State charge. It may be by definition be a “community college” - albeit a unique one - but it does not act like a community college nor is it structured like a community college. In this brief, Huntington seeks to demonstrate that the State Legislature’s mandate that the State reimburse counties for FIT expenses is still fully in force and effect and should be implemented until it is formally repealed. Huntington agrees with the position of the Town of Islip (“Islip”) that the decision and order from which this appeal is taken should be modified to hold that Education Law 3 §6305 should not be interpreted to authorize charge backs [Brief for Amicus Curiae Town of Islip at 2 (“Islip Brief”)]. Huntington takes the position that because the State Legislature in 1994 mandated that the State shall reimburse counties for FIT expenses [Education Law §6305(10)], the earlier section of the Education Law [§6305(2)] permitting counties to charge back towns or cities for such expenditure, should be deemed repealed by implication for the unique case of FIT. In this regard, Huntington’s position is unique and dissimilar to that of Islip Town. 4 PRELIMINARY STATEMENT Education Law §6305, enacted in 1955, directs that a student’s county of residence pay an allocable portion of the operating costs of an out-of-county community college when its resident enrolls in such an institution [§6305(2)]. Section 6305(5) permits the county of residence, at its discretion, to recover such expenditure by charging back the town or city in which the student resides for out of county “community college” expense. However, in 1994, the State Legislature mandated that the State shall reimburse counties in an amount equal to fifty percent of the actual amount paid by such county for resident students attending FIT [§6305(10)]. Clearly, §6305(5) must be deemed to be modified and/or repealed by §6305(10). Neither the towns and cities nor the counties, for that matter, should have to bear the burden of the additional FIT expenses. The State Legislature failed to appropriate funds to support the self-imposed obligation that it enacted. The State Legislature created §6305(10) and made itself the source of reimbursement. Since it has not repealed §6305(10) it remains the responsible party. The Legislature’s failure to appropriate funds to pay its debts does not relieve it of the obligation to pay those debts. The State is solely responsible for reimbursement to the counties for FIT expenses. Section 6305(10) was enacted subsequent to Section 6305(5); 5 the two subsections are irreconcilably inconsistent, manifesting the Legislature’s intent to repeal §6305(5) by implication. It is not the responsibility of the courts to remedy the obvious self- contradictory subsections of Section 6305. Rather than acting as a super- legislature, the Court of Appeals should declare Education Law §6305(5) repealed by implication and ineffective as authority for transferring reimbursement responsibility owed the counties for FIT charges from the State to any other level of government. 6 STATEMENT OF THE QUESTION PRESENTED Does Education Law § 6305 authorize counties to charge back to their cities and towns for amounts paid to FIT on behalf of those cities’ and towns’ residents? No. Education Law §6305(10) mandates that the State shall reimburse counties for FIT-related costs. Accordingly, the Second Department erred when it held that Nassau County was allowed to charge back the Town of North Hempstead for FIT-related costs pursuant to Education Law §6305(5). 7 ARGUMENT POINT I EDUCATION LAW §6305 AUTHORIZES COUNTIES TO SEEK REIMBURSEMENT FOR FIT-RELATED CHARGES FROM THE STATE AND ONLY THE STATE As highlighted in North Hempstead’s initial brief to this Court2, as well as Islip’s amicus brief3, Education Law §6305(10) provides an exclusive mechanism for the reimbursement of FIT-related chargebacks to counties whose residents attend FIT: On or before March thirty-first, nineteen hundred ninety-five and every year thereafter, the state shall reimburse each county which has issued a certificate of residence for any non-resident student in attendance at the fashion institute of technology during the nineteen hundred ninety-three--ninety-four academic year and every year thereafter in an amount equal to fifty percent of the actual amount paid by such county on behalf of such students and on or before June first, nineteen hundred ninety-five and every year thereafter, the state shall reimburse each county for the remaining fifty percent of the actual amount paid by each such county on behalf of such students. [1994 N.Y. Laws, ch. 170 (217th Session – 1994)]. The New York State Legislature mandated that as of the 1993/94 academic year— and for every year thereafter—the State should bear the burden of FIT-related chargebacks by counties. Huntington’s position is unique from Islip’s in directing the Court’s attention to the significance of the Legislature’s use of the word 2 See pg. 20 of Brief For Plaintiff-Peititioner-Appellant-Respondent, Town of North Hempstead. 3 See pg. 6 of Brief For Amicus Curiae Town of Islip. 8 “shall”, which creates a self-imposed mandate to appropriate the funds disputed herein. The Supreme Court of the United States has re-iterated the common law principal that, as used in statutes, the word “shall” is generally imperative or mandatory. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661, 127 S. Ct. 2518, 2531, 168 L. Ed. 2d 467 (2007) citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (“[T]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion”); Association of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (C.A.D.C.1994) (“The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive”). POINT II EDUCATION LAW 6305(5) SHOULD BE DEEMED REPEALED BY IMPLICATION While the courts generally disfavor repeals by implication, the Supreme Court of the United States has said that exceptions are made where (1) the intention of the legislature to repeal is clear and manifest; (2) the later statute expressly contradicts the original act; or (3) such a construction is absolutely necessary in order that the words of the later statute have any meaning at all. Nat'l 9 Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63, 127 S. Ct. 2518, 2532, 168 L. Ed. 2d 467 (2007). The doctrine of repeal by implication serves to remedy situations where two statutes are passed “inconsistent with and repugnant to each other”. The Supreme Court of New York has held that in these situations, the statute last enacted operates as a repeal of the other by implication: The invariable rule of construction in respect to the repealing of statutes by implication is, that the earliest act remains in force, unless the two are manifestly inconsistent with and repugnant to each other, or unless, in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subjects, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease, 1843 WL 4519 (N.Y. Sup. Ct. 1843) [Citations omitted]. Repeals by implication are upheld only where the repugnancy between the two statutes is “plain and unavoidable” and where “the provisions of a later statute cannot be given effect without the repeal of a former statute”. People ex rel. Bronx Parkway Comm'n v. Common Council of City of Yonkers, 229 N.Y. 1, 127 N.E. 593 (1920). The repugnancy between 6305(5) and 6305(10) is irreconcilable and the provisions of 6305(10) cannot be given effect without the repeal of the former statute, 6305(5). 10 In deciding whether a statute has been impliedly repealed, the primary and fundamental question to be resolved is the intent of the legislature. Repeal by implication will be granted “only where the intent to effect such a repeal is clear”. The court has said that intent is “clearly manifested by an inconsistency between the statutes which is such as to preclude giving effect to both.” People v. Mann, 31 N.Y.2d 253, 288 N.E.2d 595 (1972). The inconsistency between Sections 6305(5) and 6305(10) precludes giving effect to both statutes– it is impossible to hold both the State and the counties for FIT-related chargebacks. Thus, the Legislature’s intent to repeal 6305(5) by implication was clearly manifested when it later enacted 6305(10) and used the mandatory language “shall”. 11 CONCLUSION Based on the foregoing, the Town of Huntington respectfully submits that the decision and order being appealed from should be modified to hold that Education Law 6305 grants the Counties a reimbursement remedy against the State, but that it does not grant Counties the right to charge back their towns or cities for amounts paid by the Counties to FIT for costs associated with their residents’ attendance at FIT. Dated: Huntington, NY August 7, 2014 Respectfully submitted, CINDY ELAN-MANGANO Huntington Town Attorney By: DEIRDRE M. BUTTERFIELD Attorney for Amicus Curiae Town of Huntington 100 Main Street Huntington, New York 11743