In our memorandum of March 11, 2013, we explored the legal effects of the Appellate Division, Second Department’s decision annulling, as unconstitutional, Nassau County’s attempt to repeal the County Guarantee through its enactment of Local Law 18, as well as its budgetary implications for the 2013-2014 school year.

One of the open issues at that time was whether or not the New York State Court of Appeals would agree to hear Nassau County’s likely appeal from the Appellate Division decision.

This question has now been answered in the affirmative. The Court of Appeals has agreed to take jurisdiction of Nassau County’s appeal and has issued a scheduling order for the submission of legal briefs. Nassau County’s brief must be filed by May 22, 2013. The briefs of the named school districts (as well as the other respondents) must be filed by July 9, 2013. The County can submit a reply brief by July 24, 2013. Once all the briefs are submitted to the Court, the case will be scheduled for oral argument, probably sometime this Fall.

In the meantime, we continue to recommend that you take budgetary precautions such as establishing or continuing to fund tax certiorari reserve funds as a hedge against the risk that the Court of Appeals will reverse the Appellate Division’s decision. The fact that the Court has agreed to hear the County’s appeal does not mean that it is likely to find in the County’s favor, but rather signifies that the Court believes it is an important case warranting a definitive determination. We believe that it is still more likely than not that the Court of Appeals will affirm the Appellate Division, in which case monies reserved for tax certiorari purposes would be transferred to the general fund.

We will continue to keep you fully apprised of developments in this litigation. If you have any questions about this memorandum or related issues, please do not hesitate to contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.