By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
Michael Rebell, the attorney who spearheaded the 10-year-old lawsuit to overturn the state's discriminatory school-aid formula, went to a New York Bar Association gathering in April to hear his longtime adversary, Attorney General Eliot Spitzer. Rebell was then nervously awaiting the Court of Appeals decision that came down last week, striking the formula by a 4-to-1 vote, and he could not resist the opportunity to ask his longtime opponent Spitzer about the case. He'd wondered for years why Spitzer was taking positions in court that seemed so contrary to his larger public profile.
"He was speaking about his Wall Street cases," Rebell recalls, "so I just asked him, since he was such a liberal crusader on those issues, 'How do you justify backing the governor in the school case?' He just gave me the standard answer that he had a constitutional duty to defend the state." Rebell says he has long found it "incongruous" that Spitzer's decision to represent George Pataki in this suit has drawn so little criticism, adding that he "was never convinced that Spitzer was required" to do so.
In fact, Bob Abrams, who was AG from 1978 to 1993, infuriated Governor Mario Cuomo by refusing to defend the state on everything from Westway (a development plan for the West Side) to sports betting to the cleanup of toxic dump sites. Louis Lefkowitz, who preceded Abrams, did the same, declining to represent the Carey administration on Westway. In an object lesson for Spitzer, Cuomo was so incensed by what he branded Abrams's "weathervane representation" that he told the Times that if the AG "did not want to take on such cases," he "might not need as big a budget as he has." That threat provoked Abrams's spokesman to point out that all six attempts since 1846 to make the AG an appointive office had failed.
"The Attorney General is sworn to uphold the constitution," the Abrams spokesman said, "and he has an obligation to be independent and to exercise independent judgment."
Rebell, whose Committee for Fiscal Equity brought the suit when Cuomo was still governor, puts it in classic attorney-client terms. "If you have a disagreement with a client, an attorney can't go forward with a case," he argues. Rebell believes that when Spitzer took office in January 1999having inherited the case from Dennis Vacco, the Republican AG he defeatedhe "had to decide what position to take as to the constitutionality of the formula." That was "the most logical point," says Rebell, for Spitzer to back out, if only by informing the governor that "my reading of the state constitution" doesn't permit this defense.
"A lawyer tells his client what the law says," Rebell observes, and if he and his client have a fundamentally different view, the client gets another lawyer. That's why Cuomo and Hugh Carey wound up represented by private attorneys in the Westway litigation.
Recalling the dispute with Abrams, Cuomo says that "nobody wants a lawyer who doesn't want to handle a case," including governors. Cuomo's counsel researched Abrams' refusalslooking at precedents that "went back to Governor Averell Harriman" in the 1950sand Cuomo says now that the AG "definitively has the option to opt out" and "the governor can refuse to turn to the AG" if they differ.
Joseph Wayland, the Simpson Thatcher partner who argued the case for Rebell's committee pro bono, contends that "early on there were approaches to Spitzer," but nothing happened. "I urged him on a number of occasions to rethink the state's litigation strategy. I think there were opportunities for political leadership available to him and the governor and the legislature, and they were missed by everyone. I think it's sad that we had to litigate this case and get the Court of Appeals to say that a high school education is minimally required and that the conditions of NYC schools are inadequate."
Wayland was particularly critical of some of the arguments Spitzer's office made in the case, which he characterized as "completely antagonistic" and "extreme," such as the contention that students are class-bound captives of their socioeconomic status. Steve Sanders, chair of the assembly's education committee, echoed Wayland, saying he "told Spitzer's people that there were witnesses for the state who wouldn't even help them, who suggested that kids failed based on the educable nature of their race." Sanders said his objections "ruffled some feathers in the AG's office" but that he thought "that kind of analysis being placed on the record was offensive."
One Spitzer witness that Sanders particularly assailed was David Armor, an "expert" cheered by David Duke and paid $250,000 by the AG to testify that there wasn't "much that can be done to overcome the gaps between the poor and nonpoor." The subject of a Voice profile ("Pataki's Poster Boy," August 7, 2002), Armor is so controversial that one federal appeals panel found that he "simply does not accept the Supreme Court's view of injuries and stigma" found in the landmark Brown vs. Board of Education integration case. Armor's statistical contention, adopted in Spitzer's briefs and the appellate decision last year that temporarily derailed the school-aid case, was that there was "no significant effect of resources on achievement."
Spitzer's response on these issues, relayed through spokesman Paul Larrabee, is that "it has been his goal not to politicize the office" and that he believes that he "has an obligation to defend the state" except where there is a conflict of interest, such as between branches of government. "While those who came before him and follow may choose to approach this issue in a different manner," Larrabee concluded, Spitzer will continue his "nonpartisan" handling of state cases. Larrabee also replied to Wayland and Sanders's concerns about particular arguments Spitzer's office advanced by contending that the AG "works in consultation with the client to represent their position" and that he attempts "to express their positions as effectively as possible."
Asked if that meant that the opinions laid out in the briefs bearing Spitzer's name in this case did not reflect Spitzer's point of view, Larrabee said that "the role of an attorney is to advocate on behalf of his client." Spitzer's wide-ranging arguments before the Court of Appeals included such gems as "This problem is the result of the city's collective bargaining agreements, not state funding," "Preparation for competitive employment cannot possibly be a component of a minimally adequate education," and "The benefits of smaller class size" are "ambiguous," all opinions unlikely to be uttered on the 2006 gubernatorial campaign trail.
Cuomo recalls that when this case of elemental justice was filedwith the city classes averaging five more students than in upstate and suburban districtshe publicly urged the plaintiffs to call him as a witness. He says Spitzer could've distanced himself publicly as well. The heroic embodiment of the case, Robert Jackson, the parent plaintiff who has since become a city councilman and recently led a 10-day trudge to Albany to dramatize the appeal, was stunned to hear that Spitzer could've chosen to let Pataki find his own counsel. "I think he could have evaluated the case and said, we agree with the plaintiffs and we are not going to represent you," said Jackson.
Instead, Spitzer maintained what Larrabee describes as a "good working relationship" with the Pataki team, which ran a nominal and underfunded opponent against him in 2002 despite his razor-thin win four years earlier. While Spitzer has taken in recent months to assailing the governor for the budget deceptions of 2002, he never said a word about the budget during that campaign, even telling the Albany Times-Union a few days before the election, "I don't do criticizing of Pataki." The Post observed in 2001 that Spitzer had so "effusively praised" Pataki that he might "want to see him reelected." It may be that Spitzer's full-throttle participation in this case was, as Larrabee insists, a matter of apolitical principle. It may also be that it was a decidedly political accommodation to gubernatorial power and ambition.