NYSBA SUMMER 2011 | Vol. 13 | No. 1 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School NNewew YYorkork SState’state’s BBudget:udget: CConflictsonflicts aandnd CChallengeshallenges In Memoriam Governor Hugh L. Carey 1919-2011 The Committee on Attorneys in Public Service dedicates this issue to the enduring memory of Governor Hugh L. Carey and his enumerable contributions to public service This photograph, which is entitled Governor Carey Briefs the Press on the Budget, was made available from the New York State Archives. SUMMER 2011 | VOL. 13 | NO. 1 Government, Law and Policy Journal Contents Board of Editors 2 Message from the Chair J. Stephen Casscles Peter S. Loomis Lisa F. Grumet 3 Editor’s Foreword James F. Horan Rose Mary K. Bailly Barbara F. Smith 4 Guest Editor’s Foreword Patricia K. Wood Abraham M. Lackman Staff Liaison 5 Legal History of the New York State Budget Albany Law School David S. Liebschutz and Mitchell J. Pawluk Editorial Board 11 Pataki v. Assembly: The Unanswered Question Rose Mary K. Bailly Hon. James M. McGuire Editor-in-Chief 17 New York State School Finance Patricia E. Salkin Shawn MacKinnon Director, Government Law Center 24 CFE v. State of New York: Past, Present and Future Michael A. Rebell Vincent M. Bonventre Founding Editor-in-Chief 31 Changing the Terms of New York State’s Budget Conversation Richard Ravitch Student Editors 35 New York’s Economy: From Stagnation to Decline Robert Barrows Abraham M. Lackman Executive Editor Oriana Carravetta 39 New York State Tax Structure Eric Garofano Robert D. Plattner Daniel Levin 49 New York’s Spending: A State Like No Other Lauren Palmer Charles Brecher and Tammy P. Gamerman Jason Riegert 56 Unions, Collective Bargaining, and the State Budget Matthew Robinson-Loffl er E.J. McMahon Michael Telfer Senior Editors 60 Medicaid in New York: A Half Century of Care, Cost and Controversy John F. Cape Editorial Offi ce GLP Journal 62 The Complex History of Medicaid Reimbursement in New York State Government Law Center Eugene M. Laks Albany Law School 68 How Does the State Respond to a True Fiscal Crisis? 80 New Scotland Avenue The Legacy of Governor Hugh L. Carey Albany, NY 12208 Dr. Seymour P. Lachman 518.445.2329 74 The Offi ce of State Comptroller: Minding the State’s Fiscal Store Send Address Changes to: Mary Louise Mallick Records Department New York State Bar Assoc. 81 Observations on Debt, the Budget and Infi nity One Elk Street Kenneth W. Bond Albany, New York 12207 88 The Two New Yorks 518.463.3200 Robert B. Ward [email protected] 93 Join a Subcommittee 94 2011 CAPS Annual Meeting The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed or otherwise engaged in public service. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the editors, the Government Law Center, or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quota- tions. Contact the editor-in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2011 by the New York State Bar Association. ISSN 1530-3942 (print) ISSN 1933-8414 (online). The Journal is published twice a year. Message from the Chair By Peter S. Loomis As I write this message year was no exception. Putting together this type of pro- for the Government, Law and gram requires many hours of work, and Spencer Fisher Policy Journal issue devoted and Michael Barrett, the co-chairs of this year’s event, and to New York State’s budget, now both former CAPS members, deserve special recogni- we have just begun a new tion for their tenacity and dogged pursuit of speakers and Association year, with a new materials. president, Vince Doyle, and several new members of the Recently, CAPS selected our third annual honoree Committee on Attorneys in for the Committee’s Citation for Special Achievement in Public Service. This will be Public Service, Milinda Reed, of Unity House in Troy. By my third and last year as the time this issue of the Journal is in readers’ hands, Ms. CAPS chair, and I want to Reed will have received her Citation at a June reception at fi rst thank the members who the Bar Center in Albany. Ms. Reed was honored for her left the Committee as of June work beginning in 2000 at Unity House, where she fi rst 1st for their hard work and devotion during their tenure. developed and implemented a program to assist victims CAPS lost several subcommittee chairs, including those of domestic violence, and which she has since then cham- who headed up the Annual Meeting and Awards and Ci- pioned over the last 11 years. tations, and all of the former members will be missed. At This issue of the Journal contains some fascinating ar- the same time, I welcome our ten new members and look ticles on the often contentious budgeting process in New forward to their participation in the important work of York, and I want to particularly thank our esteemed Guest this Committee. I know they will benefi t, as I have, from Editor, Abraham Lackman, and the authors for their work. the opportunities CAPS affords to attorneys working in As always, the Journal’s Editor-in-Chief, Rose Mary Bailly, the public sector to meet, interact with and establish long- also deserves thanks for her dedication to this publication. term relationships with other public service lawyers they As a result of the Committee’s partnering with the Gov- may not otherwise have ever met. ernment Law Center at Albany Law School, the Journal Since my last message, CAPS presented our 2011 has become one of CAPS’ fi nest products, each issue cov- Annual Meeting program and hosted our Excellence in ering a timely New York topic in a unique way. Public Service awards reception in January. I mentioned Finally, in this message I want to extend my sincerest our three Awards winners in my last message, but did not thanks to Pat Wood, NYSBA’s Senior Director of Member- talk about our full-day CLE program. The now traditional ship Services, and who, in her nonexistent “spare time,” morning Supreme Court review with Professors Mazzone has also served as the staff liaison to CAPS since its incep- and Araiza of Brooklyn Law School was well received, as tion. Before we existed Pat was, in fact, also one of those always, and the afternoon session dealt with the timely who were instrumental in the creation of this Committee. topic of state government in a time of economic crisis and As a result of a reorganization at the Bar Center, Pat has the need to do more with less. Our two panels included relinquished her CAPS responsibilities. Pat has been an speakers such as former Lieutenant Governor Richard enormous help to me, and I know to every past chair, Ravitch, who also wrote for this issue of the Journal, and and I will miss her. Our new staff liaison, Megan O’Toole, Chief Administrative Judge Ann Pfau. Each year we have works with Pat in Membership Services, and we welcome been fortunate to secure excellent speakers on various Megan to the Committee! topics of interest to attorneys in the public sector, and this 2 NYSBA Government, Law and Policy Journal | Summer 2011 | Vol. 13 | No. 1 Editor’s Foreword By Rose Mary K. Bailly Governor Cuomo Announces On-time Passage I would like to espe- of Historic, Transformational 2011–12 New York cially thank our Executive State Budget Editor for 2010-2011, Rob- ert Barrows, Albany Law March 31, 2011 Division of the Budget Press Release, School, Class of 2011, for his available at http://www.budget.ny.gov/pubs/press/2011/ professionalism and enthusi- pressRelease11_OnTimePassageofHistoricTRANSFORM asm. He and his Albany Law ATIONAL2011_12NYSBUDGET.html* School colleagues, Eric Garofano, Lauren Palmer, For many years New Yorkers have heard about “three Jason Riegert, Matthew men in a room” as the Governor, the Senate Majority Robinson-Loffl er, and Leader and the Speaker of the Assembly struggled to fi nd Michael Telfer, Class of 2011, common ground over New York’s annual budget—often and Oriana Carravetta and Daniel Levin, Class of 2012, concluding the process well after the April 1st deadline. worked extremely hard to help create this issue. In many respects these reports were just the tip of the ice- We are again indebted to the staff of the New York berg of issues underlying the passage of the state’s bud- State Bar Association, Pat Wood, Lyn Curtis and Wendy get. We were delighted that Abraham Lackman agreed to Harbour, for their expertise and enduring patience. And lead the Government, Law and Policy Journal’s examination last, and always, my thanks to Patty Salkin for her loyal of various policy and legal aspects of New York’s state support. budget. Abe Lackman is the President of Praxis Insights, a higher education and government consulting fi rm. In ad- Finally, I take full responsibility for any fl aws, mis- dition to managing Praxis Insights, Abe currently serves takes, oversights or shortcomings in these pages. Your as a 2010-2011 Clarence D. Rapplyea Government Scholar comments and suggestions are always welcome at rbail@ in Residence at Albany Law School’s Government Law albanylaw.edu or at Government Law Center, 80 New Center.