The opinion
Saxe, J.
(dissenting). The majority views the separation of *192 powers doctrine as precluding the IAS court from affirmatively directing the Legislature to take the specific steps necessary to carry out the previous mandate of the Court of Appeals (see Campaign for Fiscal Equity v State of New York, 100 NY2d 893, 905 [2003] [CFE II], modfg 295 AD2d 1 [2002], revg 187 Misc 2d 1 [2001]). In this way, it allows a festering constitutional problem of enormous dimension to continue indefinitely.
While it accepts that the shortfall in the funds needed by the New York City public schools in order to provide all its students with the opportunity to obtain a sound basic education comes to at least $4.7 billion, if not $5.63 billion, the majority limits itself to asserting that in enacting a budget for the fiscal year commencing April 1, 2006, the State “must appropriate the constitutionally required funding” and directing the Governor and the Legislature to “consider” a funding plan in that range.
Remanding this matter back to the Legislature and Governor with the general and inadequate directive that they now “appropriate the necessary funding” is insufficient at this juncture. First, given our executive budgeting system (see Pataki v New York State Assembly, 4 NY3d 75 [2004]), it is not clear exactly what the majority’s direction to appropriate funding requires: is it the Governor’s proposal of an appropriation bill, the Legislature’s enactment of such a bill, or both? Second, in the face of the Legislature’s proven inability to agree upon the level of appropriation it was willing to enact in order to comply with CFE II, the fact-finding ordered by the IAS court, and the exact finding made, was clearly necessary. The appropriate step now is for this Court to uphold the confirmation of the Referees’ findings and the affirmative direction that defendants enact legislation making the specified allocation in their budget.
It bears emphasis that the Court of Appeals, in CFE II (supra), directed that by July 30, 2004, the Legislature and the Governor were to not only ascertain the cost of providing the opportunity for a sound basic education in the city schools, but also to ensure, through “enacting appropriate reforms,” “that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education” ( 100 NY2d at 930 [emphasis added]). It was only when that deadline had come and gone without compliance that plaintiffs asked the court to do, or order, that which defendants seemingly could not. The IAS court therefore, through the appointment of Referees, itself ascertained the cost of providing the opportunity for a sound basic education in the city schools, and then defined the exact *193 terms of the legislative reform which would, if enacted, ensure “that every school in New York City would have the resources necessary for providing [it]” (id.).
The majority asserts that “in the final analysis it is for the Governor and the Legislature to make the determination as to the constitutionally mandated amount of funding.” However, the majority ignores the fact that the deadline for making that determination has already passed without the Legislature successfully enacting such legislation. Indeed, the Legislature has proven itself unable to either agree upon the necessary level of constitutionally mandated funding or to make provision for its allbcation, and its failure has continued both during and after the period of time that the Court of Appeals allotted for it to act. The majority’s directive, aside from pointing to the numbers that have been in defendants’ possession for over a year, in effect accomplishes no more than what the Court of Appeals already did when it directed the enactment of appropriate reforms providing that the schools be given the necessary financial resources. Even the majority’s apparently definitive “hold[ing]” that the State must “appropriate the constitutionally required funding,” is in effect illusory. The Governor has already proposed such an appropriation to the Legislature in July 2004. The Legislature showed itself to be unwilling or unable to enact the bill. In now telling the Legislature to “appropriate the constitutionally required funding,” the majority assumes that the Legislature will, upon that direction, be capable of agreeing internally, and with the Governor, on an amount, when it has already demonstrated that it is unable to do. The range of amounts specified by the majority does not change anything; this is the same information the Legislature had before it in 2004.
The majority’s “direction,” at this juncture, leaves the students of the New York City public schools without any more of a remedy for this substantial constitutional violation than they had on July 31, 2004, the day noncompliance with the Court of Appeals’ prior directive was clear. I am unable to read the majority’s decretal paragraph as containing the type of clear and exact directive that, if ignored, may be the subject of enforcement proceedings. Without that type of clarity, it merely amounts to a suggestion to consider taking action, an illusory and possibly unenforceable remedy.
The majority also asserts that the failure of the other two branches of government to remedy constitutional failings “in *194 the past” does not authorize this Court to commit what it terms constitutional violations of our own. But, the “constitutional failings” of which we speak are current and ongoing, not simply “in the past,” and there is no indication that they will be remedied unless and until those branches of our state government have a clear and exact directive as to what they must do to rectify the violation. By framing the discussion, and the purported remedy, as it does, the majority is consigning the schoolchildren of New York to further constitutional violations and neglect. Under these circumstances, where the legislative and executive branches of government have repeatedly failed to confront and solve a problem of state constitutional dimension, it is the obligation of the judiciary to assert its historic role.
The order of the Supreme Court, which confirmed the Referees’ findings and directed the implementation of a funding program in accordance with those findings, was in all respects fully supported and proper, and ought to be affirmed.
In the prior appeal, the Court of Appeals upheld the finding that many of the 1.1 million children attending public schools in the City of New York were not receiving the opportunity to obtain a “sound basic education” as required by article XI of the New York Constitution (see CFE II, 100 NY2d at 905 ). The Court, while aware of the need to defer to the Legislature in matters of policymaking, nevertheless recognized the need to ensure a meaningful remedy for the constitutional violation (id. at 925). It therefore directed the State to (1) “ascertain the actual cost of providing a sound basic education in New York City,” (2) “address the shortcomings of the current system by ensuring . . . that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education,” and (3) “ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education” (id. at 930). The Court imposed a deadline of July 30, 2004 (id.).
Attempts were made to comply with these directives, particularly on the part of the Governor. In September 2003, the Governor appointed the State Commission on Education Reform (Zarb Commission). On March 29, 2004, the Zarb Commission released its final report, indicating that a funding increase in the “range of $2.5 billion to $5.6 billion is a good place to start.” In July 2004, the Governor proposed legislation contemplating a total increase of up to $4.7 billion over five years; this bill provided that $2 billion would be contributed by the State, with *195 the remainder made up of New York City funds and an expected increase in federal and state aid. The State Assembly also proposed a bill which called for an increase of $6.1 billion in operating funds and $1.3 billion as the State’s share of a $2.6 billion capital fund.
However, although the Governor called the State Legislature into extraordinary session in an effort to take the action directed by the Court of Appeals, the Court’s July 30, 2004 deadline passed without the Legislature’s enactment of either the Governor’s proposal or any other bill. *
In consequence of defendants’ failure or inability to comply with the prior order, upon an application by plaintiffs, the IAS court properly appointed a panel of three distinguished Referees to hear and report with recommendations on the areas in which compliance with CFE II was lacking. After extensive hearings, the Referees made six key recommendations, including a four-year phase-in of operational increases totaling $5.63 billion, a review of operational funding in 2008 and every four years thereafter, and a five-year phase-in of capital funding totaling $9,179 billion.
The Referees arrived at the $5.63 billion figure for the necessary operational funds increase by applying the so-called “successful school district” methodology employed by defendants’ expert to the particular circumstances presented here. However, they declined to use three adjustment factors suggested by defendants: (1) a 50% “cost efficiency filter,” which the Referees properly considered to be insufficiently supported by either the evidence or experts in education finance, (2) a poverty weighting figure based on national, rather than local, data, and (3) an out-of-date regional cost of living index.
Defendants continue to assert on appeal that a sound basic education can be provided for an additional $1.93 billion, but fail to provide support for that number. Indeed, that number is merely part of the calculations contained in the Standard & Poor’s (S&P) study intended to set out a range of “spending gap” calculations, specifically, the part of the analysis in which is calculated the average of the bottom-spending 50% of successful school districts. Nowhere did S&P claim that a sound basic education could be provided with the addition of this particular *196 sum, nor did any defendants’ witness explain how this sum would successfully do so. Therefore, the majority correctly ignores that suggested amount.
As to the Referees’ findings that an increase of $9,179 billion in capital funding is necessary in order for the city schools to provide the opportunity for a sound basic education, I agree with the majority that these findings are fully supported by the record. At the hearing, defendants took the position that the Court of Appeals’ decision required no increase in capital funding; accordingly, they presented no evidence on the issue. In contrast, plaintiff submitted an extensive capital funding plan, designed by a 22-person expert task force focused on addressing the particular capital funding issues raised by the decision, such as overcrowding, excessive class sizes, and an absence of laboratories, libraries, and computer equipment.
“The rule is well settled that where questions of fact are submitted to a referee, it is the function of the referee to determine the issues presented, as well as to resolve conflicting testimony and matters of credibility, and generally courts will not disturb the findings of a referee ‘to the extent that the record substantiates his findings and they may reject findings not supported by the record’ ” (Kardanis v Velis, 90 AD2d 727, 727 [1982], quoting Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn. of City of N.Y., 81 AD2d 64, 71 [1981], revd on other grounds 55 NY2d 512 [1982]).
Based upon the extensive testimony presented in support of the Referees’ plan, including the acknowledgment of defendants’ expert that the methodology and general conclusions of the plan were sound, the Referees’ findings were fully supported by the evidence before them, and therefore properly confirmed by the IAS court (see Merchants Bank of N.Y. v Dajoy Diamonds, 5 AD3d 167 [2004]). The majority’s vacatur of the IAS court’s confirmation of the Referees’ findings, implicitly disaffirming their report and recommendations, is contrary to the applicable, well-settled rule. While CPLR 4403 allows a court to reject a referee’s findings or make new findings upon the evidence presented to a referee, this Court merely vacates the confirmation of the Referees’ findings. If we are to infer from this result that the entire fact-finding reference was improper, the majority should explain the appropriate action for the IAS court to have taken when faced with defendants’ inaction.
*197 Moreover, in regard to the majority’s reliance upon Wein v Carey ( 41 NY2d 498, 505 [1977]) to hold that plaintiffs have not met the “formidable” burden placed on one who attacks the State’s budget plan, I merely note that since the State’s budget plan failed to include the court-ordered reforms providing for the necessary funds, plaintiffs’ right to relief has been well established.
Defendants’ bare assertion on appeal that the State’s building aid program, as enhanced by recent legislation, will produce compliance with the Court of Appeals’ directive, is not only too late, but vague and unsubstantiated, and cannot serve to alter the Referees’ findings in this regard. Yet, rather than confirming the finding to at least that extent, the majority directs that in enacting the 2006 budget, “the Governor and the Legislature implement a capital improvement plan that expends $9,179 billion over the next five years or otherwise satisfies the city schools’ constitutionally recognized capital needs.” Here, too, where all the evidence before the Referees supported their findings, instead of upholding the confirmed report and recommendations in order to provide an enforceable solution, the majority phrases its relief so as to leave open the possibility of more years of disagreements and fruitless negotiations.
We should reject defendants’ argument that the only appropriate judicial remedy is a declaratory judgment. A declaratory judgment is meant to settle disputes at the outset, before a “wrong” has occurred (see Klostermann v Cuomo, 61 NY2d 525, 538-539 [1984]). Here, the “wrong” is an established violation by the State of the constitutional rights of New York City’s schoolchildren, and as the IAS court noted, it “has been ongoing for more than a decade.” It is long past time to order redress of this long-standing constitutional violation, where those in a position to take action have shown no signs of readiness to do so.
More importantly, however, it is simply misguided to set aside the Referees’ well-supported findings and vacate the court’s directives in a show of judicial deference to the executive and legislative branches. The necessary deference was shown to the other branches of government when the Court of Appeals gave them over a year to determine what needed to be done and how to do it. Not only did the State Legislature fail to comply with the Court of Appeals’ mandate with regard to funding, but it made no efforts to take the other steps required by the Court. Moreover, even defendants’ brief acknowledges that the political *198 branches remain “badly divided” concerning the issue of how much money is necessary to provide the opportunity for a sound basic education to New York City schoolchildren. Commentators have discussed at length the ongoing legislative impasse that pervades New York State’s governmental process (see Benjamin, Reform in New York: The Budget, the Legislature, and the Governance Process, 67 Alb L Rev 1021, 1025 [2004]). Indeed, news reports indicate that key legislators believe that the current political stalemate regarding school funding can only be resolved by a direct order from the courts (see Passing the buck, Journal News [Westchester County], May 2, 2004, at 8B; Rothfeld, School Funding Solution on Hold, Newsday, Mar. 22, 2005, at A24). Under the circumstances, no further deference is appropriate.
The majority expresses its belief that the separation of powers doctrine precludes us from directing the Legislature to make the appropriation necessary to comply with the findings. However, at this late stage of the process, when the Legislature’s unwillingness or inability to enact the necessary legislation is well established, to preclude a specific court directive to the Legislature on the grounds of separation of powers is to virtually preclude enforcement of the Court of Appeals’ decision in CFE II.
I recognize that in the ordinary course of governmental operations, the process of funding and appropriation is strictly in the hands of the Governor and the Legislature; I do not disagree with the majority’s view of the vitality and importance of the separation of powers doctrine (see NY Const, art VII, §§ 2, 3, 4; see also Pataki v New York State Assembly, 4 NY3d at 81-86 ). Of course, our constitutional scheme does not contemplate the judiciary determining or directing appropriations in the normal course of government.
Nevertheless, these standard procedures must give way once it has been determined that (1) the level of spending by the Governor and the Legislature on public school education is so insufficient that it results in a violation of constitutional dimension, and (2) the coordinate branches of government have shown themselves to be unable to remedy the violation in the absence of a court directive. If, as defendants suggest, the judiciary is not permitted to direct the coordinate branches to exercise their appropriation authority so as to remedy the violation, we are left with a potentially unresolvable severe constitutional violation.
*199 The recent case of New York Civ. Liberties Union v State of New York ( 4 NY3d 175 [2005]), cited by the majority, does not stand for the proposition that the court may not take action to remedy the uncorrected unconstitutional level of funding. The Court there affirmed the dismissal of a proceeding seeking to compel the Commissioner of Education to designate certain schools as “schools under registration review” and to take corrective action with respect to those schools; the Court held these tasks to be discretionary in nature and therefore not amenable to CPLR article 78 review. The majority here, in asserting that “[t]he act of choosing among different reasonable funding plans is no less a matter of discretion, and therefore one that does not belong in the courts,” fails to take into account that a constitutional violation has already been established, and legislative remediation directed, and that the Legislature had a full opportunity to “choos[e] among different reasonable funding plans,” but failed to do so.
To the extent the majority seeks to imply that once several reasonable funding plans have been presented, only the Legislature may decide which plan to adopt, this would have been true if the Legislature had actually made such a decision. For instance, had the Legislature enacted a funding increase of $4.7 billion, based upon a reasonable analysis and assessment of the facts and circumstances, it would have been inappropriate for the court to conduct its own assessment of the evidence and come to a different factual conclusion, unless it first determined that the assessment adopted by the Legislature was irrational or unreasonable. But, the Legislature’s failure to act created the need for the Court to step into the breach and conduct the analysis and make the findings the Legislature should have made.
At each step of the way in this litigation, the Court of Appeals has considered the concerns expressed by dissenting justices who protested that the majority rulings would result in a violation of the separation of powers doctrine (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 341 [1995, Simons, J., dissenting in part] [CFE I]; CFE II, 100 NY2d at 958 [Read, J., dissenting]). In reasoning that the cause of action should be dismissed at the outset, Judge Simons emphasized that “[t]he courts have the power to see that the legislative and executive branches of government address their responsibility to provide the structure for a State-wide school system and support it but we have no authority, except in the most egregious circumstances, to tell them that they have not done enough” *200 ( 86 NY2d at 342 ). He went on to point out that directing increased state aid requires either cutting other programs’ aid, reallocating funds at the expense of other school districts, forcing an increase in local taxes, and “encroaching] on the Legislature’s power to order State priorities and allocate the State’s limited resources” (id. at 343). The majority declined to follow this reasoning.
Then, following the determination at trial that the constitutional mandate had been violated, when the Court of Appeals upheld the trial court’s findings and directed the State to take action, Judge Read protested in her dissenting opinion that “[i]t is up to the Legislature, as the entity charged with primary responsibility under the Education Article for maintaining the State’s system of public education, and the Executive, who shares responsibility with the Legislature, to implement a remedy” ( 100 NY2d at 958 ). Nevertheless, the majority of the Court of Appeals mandated that the State provide its public school students with the opportunity to obtain a sound basic education, and upheld the determination that the State’s appropriations have been insufficient to provide such an education to New York City schoolchildren.
Despite the misgivings of these dissenting judges, the determinations already made by a majority of the Court of Appeals necessarily assume that it is the obligation of the courts, under such circumstances, not only to detect the existence of constitutionally inadequate school funding, but to direct its remediation. While the Court gave the coordinate branches of government the opportunity to determine for themselves both the extent of the violation and the appropriate remedy, their failure to effectively take action requires the court to exercise its equitable power to ensure that the necessary action is taken.
Notwithstanding the importance of the separation of powers doctrine, when a coordinate branch of government, given the opportunity to remedy a constitutional violation, has shown itself unable and unwilling to take the necessary action to do so, there is ultimately no other option than for the court to ensure that the necessary steps are taken. It is too late for this Court to limit our determination to simply espousing our view as to the range of amounts that would be constitutionally adequate, and directing that an allocation in such a range be “considered” by the Legislature, without actually directing any definitive action.
It is true, as the majority points out, that in initially reinstating the complaint the Court of Appeals observed that—at that *201 point—“any discussion of funding ... is premature” (CFE I, 86 NY2d at 316 n 4), and that in reinstating the trial court’s findings of a constitutional violation after trial, the Court limited its remedy to giving the executive branch time to decide upon and enact remedial measures (CFE II, 100 NY2d at 925, 930 ). However, when the Legislature let the deadline pass without enacting any legislation to remediate the constitutional violation, the circumstances fundamentally changed. Without any reason to believe that the Legislature would comply with the Court of Appeals’ order, plaintiffs properly sought the assistance of the IAS court, which properly proceeded to take the steps that the Legislature should have taken. This legislative paralysis has now brought us to the point in this litigation when an order directing the remediation of the constitutional violation has become necessary. In view of the ongoing, persistent legislative inaction, we must have the authority to direct the enactment of legislation, rather than merely direct that the Legislature consider taking action; otherwise, there could be no enforceable remedy for a legislative failure to correct its constitutionally deficient expenditure.
Defendants cite to other school funding cases in which, they contend, the courts have abided by the separation of powers doctrine to decline to direct specific spending. However, the cases they cite do not preclude such court directives based upon the separation of powers doctrine. Moreover, review of school funding cases in litigation around the country reflects that many courts have specifically considered and rejected this separation of powers argument, where—as here—the coordinate branches of government have demonstrated an unwillingness or inability to make the necessary changes in their education funding to remedy the constitutional violation.
In Hancock v Commissioner of Educ. (443 Mass 428, 430, 822 NE2d 1134 , 1136-1137 [2005]), one of the cases cited by defendants, the Massachusetts court merely declined to adopt the conclusion of the assigned trial-level judge who held that the Commonwealth was still not meeting its constitutional obligations. Notably, the concurring judge emphasized the trial court’s findings that in the 12 years since the court had initially declared that Massachusetts was failing to fulfill its educational obligation (see McDuffy v Secretary of Exec. Off. of Educ., 415 Mass 545, 617, 615 NE2d 516, 554 [1993]), the state had “radically restructured the funding of public education across the Commonwealth based on uniform criteria of need, and dramati *202 cally increased the Commonwealth’s mandatory financial assistance to public schools” and “spending gaps between districts based on property wealth have been reduced or even reversed” (443 Mass at 432, 433, 822 NE2d at 1138 [Marshall, Ch. J., concurring]). Accordingly, it was not the separation of powers, but the successful remedial action taken by the coordinate branches of government that obviated the need for the court in Hancock to take directive action. And, in Idaho Schools for Equal Educ. Opportunity v State ( 140 Idaho 586 , 97 P3d 453 [2004]) and Butt v State of Cal. (4 Cal 4th 668, 842 P2d 1240 [1992]), both of which were cited by defendants, the courts actually indicated their approval of the implemention of remedial measures by courts “when the Legislature . . . failed to take appropriate action” (Idaho Schools, 140 Idaho at 589 , 97 P3d at 456 ).
As to Hoke County Bd. of Educ. v State (358 NC 605, 599 SE2d 365 [2004]), relied upon by defendants for the court’s remark upon the judicial branch’s “limitations in providing specific remedies for violations committed by other government branches in service to a subject matter, such as public education, that is within their primary domain” (358 NC at 645, 599 SE2d at 395 ), the only remedial directive reversed by the court there was the order requiring the expansion of pre-kindergarten educational programs so that they would reach and serve all qualifying “at-risk” students (358 NC at 609, 599 SE2d at 373 ). That directive was held to “infringe[ ] on the constitutional duties and expectations of the legislative and executive branches of government” (id.). The decision affirmed, however, the directive that the state “assume the responsibility for, and correct, those educational methods and practices that contribute to the failure to provide students with a constitutionally-conforming education” (id.). There is no reason to believe that if faced with total inaction following this directive, the North Carolina court would assume itself to be powerless to make any further direction. In fact, it is particularly noteworthy that the defendants there began acting to remedy the constitutional violation immediately after the trial court’s decision, and continued to allocate increasing amounts to their high-need districts. There is no indication in that decision that the legislature was viewed as having failed to take the contemplated actions.
In contrast, where courts in other states have observed insufficient progress in the remediation of educational funding failures, they have uniformly made the necessary directives (see *203 e.g. Montoy v State, 279 Kan 817, 828, 845-846, 112 P3d 923, 931, 940-941 [2005] [active remediation by judiciary appropriate “(a)s long as such power is exercised only after legislative noncompliance”]; see also State v Campbell County School Dist., 32 P3d 325, 332 [Wyo 2001]; Lake View School Dist. No. 25 of Phillips County v Huckabee, 351 Ark 31 , 91 SW3d 472 [2002], cert denied sub nom. Wilson v Huckabee, 538 US 1035 [2003]).
Defendants’ argument that the State’s actions over the past decade show an increasing commitment to the State’s system of public education and to New York City’s schools completely fails to take into account the strong showing that in many respects it is a lack of funding, in amounts reaching billions of dollars, that is largely the cause of the lost opportunity for millions of schoolchildren. Putting in place comprehensive standards, an accountability system, an overhaul of the teacher certification process, and management reforms, as important as they are, cannot reduce class sizes and provide the needed resources.
The Referees appointed by the IAS court devoted their exceptional abilities to arrive at a carefully reasoned conclusion as to exactly what must be done to correctly remedy the established constitutional violation. The IAS court then carefully and fully considered the same evidence, and the Referees’ reasoning, and properly confirmed their findings. It then took the absolutely necessary step of directing defendants to implement such a plan, including periodic reviews and studies and the development of a comprehensive plan for reforms and initiatives. Nothing in the court’s measured directives overstepped the bounds of accomplishing only that which was necessary. Both the confirmed findings, and the affirmative directives, should be upheld.
Sullivan and Malone, JJ., concur with Buckley, P.J.; Tom and Saxe, JJ., dissent in a separate opinion by Saxe, J.
Order, Supreme Court, New York County, entered on or about March 16, 2005, modified, on the law and the facts, to vacate the confirmation of the Referees’ report; to direct that, in enacting a budget for the fiscal year commencing April 1, 2006, the Governor and the Legislature consider, as within the range of constitutionally required funding for the New York City School District, the proposed funding plan of at least $4.7 billion in additional annual operating funds, and the Referees’ recommended annual expenditure of $5.63 billion, or an amount in between, phased in over four years, and that they appropriate such amount, in order to remedy constitutional deprivations, *204 and that, in enacting such budget, the Governor and the Legislature implement a capital improvement plan that expends $9,179 billion over the next five years or otherwise satisfies the city schools’ constitutionally recognized capital needs, and otherwise affirmed, without costs.
The Legislature’s $300 million increase in the city schools’ budget as enacted in 2004, is a small fraction of the amount needed to remedy the violation, and cannot properly be relied upon to establish or imply compliance with the Court of Appeals’ directive.