Litigation is the pursuit of practical ends, not a game of chess.
JAY WORONA WORKED in a narrow office with one drafty window that faced a parking garage, a threadbare carpet, chintzy fluorescent lighting, and walls decorated with cheaply framed Chagall posters. Though it wasn’t exactly glamorous, Worona was grateful for every day he spent in that office.
A native of Poughkeepsie, Jay had graduated from Albany Law School in the early 1980s into a dismal national economy and what seemed like a withering industrial core in New York. He was languishing in a job at a law firm in Schenectady, unhappy and unfulfilled but unwilling to relocate. He went to law school because he was fascinated with the Constitution. I could certainly relate to that: The majesty and brilliant yet simple prose of the Constitution has an almost spiritual quality that entices the intellect and nourishes the soul. To me, and I’m sure Jay, it borders on sacred scripture.
Unfortunately, for most lawyers the Constitution is something of an abstraction, likely because of the tension between the inviting flexibility of the document and the rather mundane and mechanical way in which the courts (quite sensibly) actually use it. For example, a guarantee of “due process” or “equal protection” is both romantically abstract and platonically concrete. To an extent, the living, growing, and expanding document, and the fact that it was ratified, is a monument to the power of ideas. Applying those ideas and principles to real life is endless labor for the Supreme Court, and a frustrating exercise in semantics for many law students. Worona was quite the exception.
In law school, Jay excelled at constitutional law, having a natural feel for the semipolitical, quasi-legal issues worked out by the Supreme Court. But, as many a student in his position has discovered, the opportunity for practicing constitutional law is limited. Out of school and in legal practice, the academic affection for the Constitution can wither. So Jay, somewhat disillusioned with the practice of law, continued a somewhat despondent shuffle through his days at the firm in Schenectady, becoming increasingly miserable and inventing plans of escape. He’d had just about enough when he was summoned to defend a man accused of fondling himself in a car and was directed by his boss to argue—presumably, with a straight face—that the defendant was actually swatting at a bee in his parked car. This was not why Jay went to law school. He quit on the spot, and within a week was sitting in front of me, being interviewed for a job.
Worona didn’t have—and I couldn’t afford—government experience, or much experience at all. I was hoping to find a promising young lawyer, someone I could mentor, someone creative and innovative, as well as intelligent and energetic, someone who was willing to push the envelope. I told Worona that my strategy for expanding the power of the School Boards Association would be to file lawsuits, mostly constitutional challenges, in New York, as well as to weigh in on similar issues in the rest of the country. I said that I wanted to use the law and the Constitution to resist some of the more destructive demands of those who wanted to attack the core of public education as an equalizing tool in society. His eyes lit up. I had my lawyer.
In the next few years, Jay and I indeed raised the organization’s profile by filing amicus briefs* in major education cases throughout the country. Indeed, we filed more amicus briefs than any other organization in the state. The 1980s was a time of growing discontent with the public school system. In particular, the Reagan administration’s landmark report “A Nation at Risk: The Imperative for Educational Reform” documented the failings of our public education structure, alarming parents, spurring fundamentalists into lawsuits and home-schooling, and terrifying an industry that was thoroughly wedded to the status quo. Though some portions of the administration’s document were quite irrational, the report was truly a bellwether event in education reform.
One of the earliest cases Worona and I participated in by submitting a brief stemmed from a group of conservative legal organizations challenging the literature curriculum in a public school in Tennessee. These fundamentalists had been shocked into action when they learned that the school was teaching The Diary of Anne Frank. The passage in which Anne says, “Peter, I wish you had some religion to hold onto, it doesn’t matter what it is, just some faith,” antagonized local Christian fundamentalists, who couldn’t handle the prospect that theirs wasn’t the one true faith, to which all who seek God’s approval must adhere under threat of eternal damnation. It was a Tennessee case with no direct link to New York, other than that the Constitution affects all of us. Still, in order to file an amicus brief, Jay had to get permission to practice in federal courts in Tennessee.
Such cases were popular fodder in the relatively liberal New York press. Some of the coverage had a “Look what those hicks have done now” tone, and some of it had a “These hicks are coming to get you next!” tone. Either way, I was ready with quotes highlighting the backwardness of the fundamentalists and extolling New York (only half-jokingly) as the last bastion of support for the US Constitution. As a well-educated Jew from a West Virginia steel town, I could wear a lot of colorful hats for the media—sometimes playing up my blue-collar roots, other times playing off the media’s misguided assumption that I had been born, raised, and educated on the East Coast.
I saw an opportunity to turn the New York State School Boards Association into an ideas shop, a think tank of sorts. In the past, the organization had opposed anything that might cost property tax dollars—which is to say it opposed pretty much everything. On the other hand, our frequent nemesis, the New York State United Teachers, supported anything that provided educators with salary, benefit, and pension enhancements. In short, there was really no consistently thoughtful and outspoken voice on education policy, and I felt the association could become a group with the right ideas on education and the political know-how to achieve its goals.
Soon, the association was putting out position papers on seemingly every issue in the education spectrum: gifted children, bilingual education, special education, early education, and nutrition and fitness, to name a few. But lots of organizations have smart people on board who produce wonderful position papers that simply collect dust. I wanted the association to be not only right but also relevant.
With that goal, I brought in two people whom I thought could get us noticed with the public—the ultimate constituency for any advocacy group—and the legislature. Dan Kinley, an excellent legislative analyst from a politically prominent Albany family (his father was the treasurer of the state Democratic Party in New York), was an expert in “smart bomb” legislation (legislation that appears to apply to everyone but actually applies to only one constituency—e.g., the Kiryas Joel statute). Bill Pape grew up on Long Island, the son of a well-connected policy wonk, and had worked for a state senator before I hired him as the association’s press officer. They worked hand in glove with me. Pape created a newspaper for the association and convinced the legislative aides at the New York State Capitol (who do much of the work for the politicians) that the membership across the state read it religiously. Pretty soon the legislative aides were also reading the newspaper. When the legislature called for clarification on any of the position papers, Kinley and Pape were able to explain the policies in detail. In a short period, the School Boards Association became known as the go-to source on any aspect of education legislation in the state. That’s a valuable thing considering that education is not only one of the most perennially newsworthy local topics but also one of the most expensive and legislatively complicated. Reporters wanted to write about it, but few of them had the inside knowledge of the legislative process required to understand how it all fit together. I would drop pithy distillations to the media and Bill Pape or Dan Kinley would fill in the details for the reporters.
As a result of the higher profile of the association, the membership became more involved, more active and interested. By increasing their involvement, we were able to get school board members (who were, after all, elected officials in their own right) to influence their local politicians back home. In a few short years we had managed to turn a “just say no,” budget-focused backwater into a forum for talking about the things that most school board members and most parents were really interested in: education policy. Moreover, those who disagreed with us on issues were now on the defensive, forced to respond in the media and engage in public debate. So we were well positioned to take on Mario Cuomo and the New York State Legislature.
When I got back to my office after the confrontation with Cuomo, Jay Worona and I began to discuss legal strategy. We were a good team, because we came from somewhat different perspectives, we respected each other, and we were willing to consider and concede the strengths and weaknesses of opposing positions. A much more observant Jew than I, Worona is also much more sensitive to the reality of anti-Semitic discrimination. And so, where I was prone to see both the crass political maneuvering behind the law and the consequences of extending the principle of the law ad infinitum (fearing Catholic, Baptist, and black- and white-only school districts, not to mention districts for retirees without children to educate), Worona was inclined to see the perverse forms of anti-Semitism that he felt must have forced the Satmar into this situation. The truth, as we both would learn, was somewhere in between. The Satmar were neither as manipulative as I imagined nor as helpless and victimized as Jay saw them.
In any event, though sensitive to what he felt was the likely mistreatment of the Satmar, Worona quickly saw that, as an intellectual matter, the law was a disastrous and unnecessary precedent, one likely to further inflame religious as well as ethnic tensions. His mind was abuzz with legal theories and strategies. For once, instead of just being amici, Worona would be the lead attorney on the case. He was primed and pumped for the challenge, but there was a threshold hurdle to clear: Could we sue?
Contrary to the popular notion that anyone can sue anyone, anytime and anywhere, for anything, in order to bring a lawsuit one must have standing, or locus standi. One cannot challenge the constitutionality of a law without first showing that one is or will be harmed by the law. In other words, you must have a stake in the outcome, something to lose. Before Jay finished the short walk back to his own office, he was already having grave doubts about the not-for-profit association’s standing.
But one thing was certain: Al Hawk and I, as individual taxpayers, had standing whether the organization did or not. Violations of the Establishment Clause are one of the only constitutional infringements for which both New York State statutory law and the US Supreme Court will allow taxpayer standing. That is, any taxpayer affected by the law in question can challenge it. This contrasts sharply from almost any other constitutional violation or deprivation. At the time, a person couldn’t sue the US government (or the New York government, for that matter) just because he believed the government had spent his tax money improperly or unwisely.* However, the state law considered the separation of church and state so important that taxpayer standing was allowed. The benefit of this rule was that Al and I could proceed under our own names, meaning we would have our day in court regardless of whether the School Boards Association could get standing. (Groups or associations or corporations are not granted taxpayer standing; they must demonstrate particularized harm—that is, they must show that the law in question has harmed a member of the group. The fact that the law was supported by the Monroe-Woodbury Central School District, a major dues-paying member of the association, did not help with this point).†
But if I were to sue personally, rather than on behalf of the association, I couldn’t do so on the organization’s dime. To sidestep that problem, Jay and his extremely able cocounsel, Pilar Sokol, agreed to do all of their work on the KJ case in a volunteer capacity, after hours. As time would go on, Pilar’s pivotal role would become more and more apparent.
Next question: Whom do we sue?
The more Worona looked into the problem, the more difficult that question became. Thinking systematically, he reasoned that the complaint had to allege a violation of the state and federal constitutions—specifically that the law violates the Establishment Clause of the First Amendment of the US Constitution and the Blaine Amendment of the New York State Constitution. As a taxpayer, I definitely had a constitutional right to a government that does not act in support of religion. But who was violating that right? Was it the governor for signing the bill and thus making it law? Was it the governor simply as the head of state in New York? Was it the state comptroller for spending the state’s money? Was it the legislature for appropriating the funds? Was it the commissioner of education or the department of education for executing the law? Was it the Village of Kiryas Joel for asking for the law? Was it the new school district of Kiryas Joel for existing?
As Worona was tackling the thorny legal aspects of this question, I had to take into account the equally weighty political aspects involved. I wanted to avoid a case called Grumet v. Cuomo if possible. Also, I didn’t think it would be wise (either for myself or the association) to take a position that made Cuomo the enemy. Win or lose, we were going to have to work again with any or all of the possible defendants, and I didn’t want to burn any more bridges than necessary. (Ultimately, however, we would have no choice but to name the governor and other state officials as defendants).
The next step was for Worona to write a complaint and brief demonstrating how the law violated the New York State and US Constitutions. There were two options: we could allege either that the Satmar were actually using taxpayer money to support their religion in an unconstitutional way, or we could allege that the law itself violated our rights by supporting the Satmar religion. I much preferred the second approach, which is known as a facial challenge to the law. It was clean and simple. We would argue that the state violated the Constitution merely by enacting the statute; whether or not the Satmar implemented it in an unconstitutional manner made no difference.* (This was also partially a question of resources and timing. A facial challenge did not involve discovery, or a pretrial demand for documents and other information in the possession of the adversary, which is very expensive.)
Once we had decided to bring a facial challenge to the law, there was the question of venue—that is, where to bring the case. Since a federal right was at stake, we could have begun in a federal district court, but we dismissed the idea. In the first place, we would also be bringing claims relating to the New York State Constitution’s Blaine Amendment, and I reasoned that the federal courts would be reluctant to intrude in state affairs. As far as I was concerned, even if by some remote chance the case failed under the federal Constitution, it was a sure thing under the Blaine Amendment. Further—and this goes to the PR/political side of the battle—I feared it would offend both the judiciary and political branches in New York if we were viewed as mounting an end run to bypass New York’s courts. Finally, as a matter of practicality, given the conservative trajectory of the federal courts, I generally preferred to litigate in state court.
Worona and Sokol worked tirelessly on our complaint and brief and put together what I thought was a dazzling and compelling argument. We filed the lawsuit in New York Supreme Court in Albany† and waited for a response from our adversaries, who meanwhile had moved full steam ahead on forming the new district and had hired staff to operate the school.
I was particularly curious to see who the Satmar would retain to go up against my young, relatively inexperienced attorneys. I had unflinching confidence in Jay and Pilar, but when I found out the name of our adversary, my first reaction was Oh shit.
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* An amicus curiae is an individual or organization that is not party to a lawsuit but volunteers or is invited to submit a brief to weigh in on a particular issue. Ideally, amici offer the court a perspective not provided by the actual litigants—perhaps a potential ramification or consequence or implication that has been overlooked by the parties. To an extent, amici help prevent unintended consequences.
* This changed with the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, 558 US 310 (2010).
† Officials at Monroe-Woodbury were livid when they heard I intended to sue. From their perspective, creating the Kiryas Joel school district eliminated a perpetual administrative headache for them—and got a troublesome and increasingly powerful voting bloc out of their way. Although we did not set out to sue the school board, its attorney, Lawrence W. Reich, insisted that the Monroe-Woodbury board should be a party to the litigation, arguing that without the involvement of the school board ours was a “lifeless, dispassionate controversy predicated upon abstract principles of law” and claiming that the board had the “greatest political stake and interest in the litigation.” See “Memorandum of Law on Behalf of the Board of Education of the Monroe-Woodbury Central School District,” 1990, submitted by Reich and attorneys with the Northport, Long Island, law firm of Ingerman, Smith, Greenberg, Gross, Richman, Heidelberger & Reich.
* Consider the analogy of highway speeding. A police officer cannot issue a ticket simply because one drives a car that is capable of going over the speed limit; the officer has to catch the driver going over the speed limit by using a radar gun to measure the speed of the car. Most lawsuits are like that. On the other hand, there are some cars that no one is allowed to drive on the street, such as Formula 1 race cars, which are illegal because lawmakers have decided that these cars are so unsafe that we cannot trust anyone to drive them at any speed on a public road. It was this second analogy that applied to Kiryas Joel. Worona’s facial challenge alleged that the Pataki-Lentol law gave so much power, so much support, to the Satmar religion that I shouldn’t have to wait until my rights were violated in practice to challenge it.
† In New York, the “supreme court” is a trial court, not an appellate court—the low court rather than the high court.