behalf our review of New York State government and politics.
Your host is political scientist and syndicated columnist Dr. Alan Sharton of the State University.
In this edition of the Legislative Gazette, we'll discuss the somewhat complex legal issues of where students should be allowed to vote.
Governor Mario Cuomo is called the legislature back to Albany next week to work out the medical malpractice insurance issue.
But as Bill Gralty reports, that doesn't guarantee the problems will be solved.
The clock is ticking on this one.
Back last summer, the legislature approved what everyone agrees was a band-aid approach to rapidly rising medical malpractice insurance rates.
It held the line on increases until December 1st.
Of course, that date has come and gone and when it came, insurance commissioner James Corcoran temporarily blocked new higher rates.
The governor Cuomo said that approach couldn't go on indefinitely.
So this week, the governor and legislative leaders met once again to review a revised plan drawn up by the governor and assembly speakers and they think.
Essentially, it would stabilize rates for a full year until the end of 1986 by switching over to a new plan that would call for smaller premiums the first year, but which could lead to higher rates in years to come, so-called claims-made plan.
Speaker Finck emerged from the meeting to say there had been agreement on that part of the plan as well as others.
We are in agreement that we ought to go to what claims-made, a claims-made which we think will have some effect.
We know we'll stabilize premiums. We're in agreement in the areas of some changes in a disciplinary procedure and we're in agreement that we ought to have a demonstration program to see whether arbitration might work in a certain way.
So we're trying to pick out a fair and reasonable sample of HMOs and a number of people, so over the next couple of years we can determine whether arbitration is a workable thing.
And some states arbitration is a matter of fact that's caused an increase. The Michigan experience, Michigan hospitals and physicians are very unhappy with it.
And some other states, they think it works well. So we want to gain a body of experience.
Those are the three major areas where there is agreement.
And there was also agreement that hospitals should be required to continue to purchase some insurance for doctors who practice there.
But the Democratic plan didn't sit particularly well with Senate Majority Leader Warren Anderson.
He refused comment immediately following the leadership meeting at midweek, but later that day called a news conference to denounce the Democratic plan as one that doesn't go far enough.
The Democratic plan, which has been explained to crap and me and our staffs, is clearly nothing more than a rollover of the current malpractice status until December 31, 1986,
which even the uninitiated would see as an election day gimmick or election year gimmick.
But it's more serious than that because it delays the impact and makes it greater after January 187.
Or to put it another way, Assembly Minority Leader Rappelje said it's like telling the doctors to take two aspirin and call us in January 1987.
Despite the Republicans' obvious displeasure with elements of the plan, Governor Cuomo went ahead and called the lawmakers back to Albany next week. That he can do.
What he can't do is force a vote on malpractice reform. The Assembly is likely to vote on it and go along with the plan.
But whether Senator Anderson will allow a vote is an entirely different matter. He indicated he let it see some daylight before the public for a week and then would meet with fellow GOP leaders next week to decide its fate.
This is Bill Grohlty.
State education officials and legislators from rural sections of New York are pushing for a program to extend to rural students some of the extras that are available to students in cities and suburbs.
Leslie Brokall has our report.
An ongoing project for school districts in rural areas is figuring out how to keep up with larger areas. Small towns have limited local tax bases from which to draw.
And state funding is based on pupil counts, which for many rural districts is just several hundred students.
The past many areas tried to consolidate their districts in order to expand educational opportunities, but that's led to several hour bus rides for students and a challenge to the sense of community that many rural schools provide.
Looking for other options, New York has begun testing a new kind of program to increase educational opportunities learning through telecommunications.
State Education Commissioner Gordon Ombach.
Students who happen to be in relatively sparsely populated areas in our rural school districts, where they're simply not enough in one district to provide for a full course, can be brought together through telecommunications and an interaction with telecommunications to be able to have this kind of course work.
The program is called Distant Learning. Students and a professor at an unlimited number of locations, each are equipped with a phone speaker that enables them to talk to each other simultaneously, an electronic chalkboard which looks like a desktop blotter with a special wand for drawing, and to computer and to computer screen upon which the chalkboard images and other pre-programmed diagrams are projected.
The process was tested with an astronomy course, and a math class that New York State Senator Charles Cook describes.
We are now offering an advanced placement course in advanced calculus tied in with Colgate University in which we are offering to some 24 students in six different school districts.
The same curriculum that is being offered at Colgate University takes the same examinations as the students at Colgate University which will give them advanced placement.
Senator Cook and Education Commissioner Ombach say the program will eventually make it easier for rural districts to reach the more demanding academic standards that the Board of Regents implemented last year.
The startup cost for the program has been about $150,000 contributed by the federal, state, and local governments and through in-kind services. It's expected that test programs will continue next year with new appropriations.
Students seem to have taken fairly easily to the system, which is somewhat like talking on the phone, watching TV, and listening to the radio. Education Commissioner Gordon Ombach.
Back in the 19th century, the claim was that the best education took place when it was the teacher on one end of the log and the student sitting on the other in a very direct tutorial conversation.
Well, in effect today with the telecommunications capacity that we have, it's not a matter of having people on the other end of a log. It's a matter of having people on the other end of wires of the magnificent systems of communication that are available, which do permit virtually an unlimited return.
It's an unlimited opportunity for one-on-one or for a teacher with a class to provide for learning.
Now let's hear from regular contributor, Gerald Benjamin. Jerry is a political science professor and a Republican county legislator from Ulster County.
An extraordinary letter appeared recently in my hometown weekly, the Ugonut Harreld. It was from a community group called A Firm,
and explained why the group had decided not to sue the New Paul's Planning Board over its approval of a subdivision called Outlook Farm.
A firm reported in its letter that it had met privately with the developers of this project, and had elicited from them, quote, guarantees concerning limits on the type and size of the project, unquote.
After this meeting, and as a consequence of their agreement with a firm, the developers filed a letter of intent with the town planning board setting forth the details of their commitment.
Thus, under the threat of a lawsuit, the future development of my hometown was taken out of the hands of duly appointed government officials.
Control was seized by a pressure group that asserts that it represents, quote, the community's interests, unquote.
The developers, practical people who can see where the power in the community really lies, went along to avoid the long delays that legal wrangling would surely cause, delays that would squeeze all the profit out of their venture.
Who were the losers? In the short term, they were the planning board, which was dealt out of the decision, and the town government in general to which the planning board is responsible.
But in the longer run, all of us lose who benefit from established legitimate governmental processes for community development that can accommodate differences, consider alternatives, and bring controversial matters decisively to closure.
In towns across New York State, citizens assert that they want to preserve home-roll from land use decision-making.
But litigation and the threat of litigation takes decisions out of the local arena, and places them in the hands of remote judges and bureaucrats interpreting state laws in offices distant from our communities.
In towns across the state, we struggle to convince people to run for local office, or to accept appointment to local boards.
Yet, we continue to passively observe the development of procedures that dividealize these bodies, making service on them enormously less attractive.
In towns across the state, we struggle to keep property tax increases within bounds, while still providing citizens with the local services they want and need.
Yet simultaneously, we allow developments that take power away from the very institutions that must balance resources against demands, growth against the limits of growth, and give power to single issue advocates for home balance is an alien idea.
No one group has a monopoly over the public interest. The real public interest is in an legitimate locally based process, accountable through elections, that ways development alternatives and arise at timely and final decisions.
Nobody's interest is served when this process is undermined.
Student voting. In New York, the issue has turned out to be a very complicated legal matter.
Jack Lester is the attorney who represented the Student Association of the State University, and is now in private practice.
Jack Lester, it seems like a million years that you have been working on a case which would allow students the right to vote from their dormitories in their college towns.
So why did you start with this whole thing?
Well the suit was initiated in 1980 on behalf of individual students at the State University of New York at Albany who refused the right to vote in Albany County.
And we brought the suit on their behalf initially, and the case was expanded to include students from all over the state.
That's fine, but what was the issue?
There's a law on the books in New York State which prohibits students from voting in their college community, and we challenge that law as being unconstitutional.
You said that when a student moves into a community, like anybody else who moves into a community, they should be allowed to vote from that community.
And the opposition said, of course, if I can just try to state it in a moment, wait a second, these kids are not really tax players or homeowners they'll come in, they'll start building swimming pools from one end of the town to the other.
They'll vote for incredible expenditures and we'll be left holding the bags when they move on, right?
That's the essentially correct.
Okay, so a lot of the towns when students tried to register simply said no because the law says comma.
Okay, the law said for purposes of registering and voting, no person shall be deemed to have gained or lost.
They're residents based on the fact that there is student attending an institution of higher learning.
Which meant in effect that they had to vote back on Long Island or wherever they came from by absentee ballot, but not where they were going to.
That's correct.
All right, now we got the picture.
So you, as I remember as a young person in my class many, many, many years ago, wrote your senior honors thesis on this problem, then you went to law school, now you're at a law school,
you're working for a student association at the State University at Albany, you bring the case before a federal judge, right?
Correct. Who was he?
That was Judge Neil McCurne of the Northern District Federal Court.
Okay, and you brought it to Judge McCurne and he said...
Judge McCurne ruled that the statute was unconstitutional on its faith and as applied.
In other words, the statute had been applied in a discriminatory manner by the Albany County Board of Elections.
He also ruled that the Ulster County Board of Elections was applying it in the same manner and therefore he enjoined that practice of applying it the way they were.
And he also said that the statute as written on its faith was unconstitutional and should be stricken from the election law.
In short, young post law school student Jack Lester wins a major battle.
He brings his federal lawsuit and the judge says, yes, the law is unconstitutional, it's discriminatory, it discriminates against students as opposed to other kinds of people who would be eligible to vote.
You can't do it, I throw it out. Right? That's correct.
Okay, now what happens then?
Okay, that ruling came down in November of 1984, right before the presidential election.
The state and county boards of elections appealed that decision to the Second Circuit Federal Court and the Second Circuit Federal Court reversed that decision in part.
The court ruled that yes, the statute was unconstitutional as applied by the Albany County Board of Elections and the Ulster County Board of Elections.
But on its faith, they saw nothing wrong with the statute and held that it was constitutional and they remanded the case.
They sent it back to Judge McCurndt to modify his initial injunction.
Okay, so now Judge McCurndt, who by the way, as I understand it, once ran unsuccessfully for Congress on the Democratic ticket from Syracuse, is that right?
Yes, I understand that.
Okay, called back all of the principles together, brought them in a room, said sit down boys and girls, young men and women, here's how we're going to work it out.
Right. Well, what McCurndt would like from the state is for the state to come up with a modified injunction.
In other words, his rule that the board of elections cannot use the questionnaire that they had used previously.
When any student attempted to register the vote, they had to answer 22 different questions.
But this was not something, by the way, that any other voter would have had to do, right?
That's correct.
And that's the basis of the discrimination, right?
Okay, go ahead.
And that went only to students.
So McCurndt is indicated that that is still impermissible and that it's now up to the state, the state attorney general's office and the state board of elections.
To come up with some way of enforcing this statute that would not be discriminatory.
In other words, it's permissible to ask students, certain students, certain questions, but they cannot just have unfettered discretion to discriminate against all students.
In other words, it's proper to ask a student perhaps if they have a lease, if they pay a phone bill, a utility bill, just some indissia of residency.
But it's not permissible for them to go through all 22 questions that they did formally, and then determine that no student can vote.
Okay, now let's see if I've got this straight now, Jack.
According to the federal judge who overruled Judge McCurndt, yes, this statute, which says that students may not be allowed to vote in a district that they're going to go to college in, is on its face, okay, right?
Okay, but what, and so in effect, Jack Lester, who had brought all of this thing all the way up, is now losing, right?
Well, losing in that extent.
Well, that's a big loss.
Okay.
Isn't it?
Yeah, well, we were not happy with that decision.
Incidentally, we filed the petition of Sarsharard to the US Supreme Court.
Right, but pending that, you are the loser right now.
So Judge McCurndt, who has been slapped on the wrist himself, and overruled, now brings everybody in and says, okay, yes, it is the law may be constitutional until we hear otherwise.
But in the meantime, the way in which you enforce the law is now the question.
Right, because the circuit court affirmed that part of the decision.
Yes, we see nothing wrong with the statute, but yes, we find that Albany County and Ulster County acted in a discriminatory fashion.
Why was it so discriminatory?
Well, they were trying to do this, find out, in fact, if the person was a student or not.
Well, they claim that the statute doesn't mandate that they do, that they go to the extent that they did.
Okay, let's get off it.
I still think it's beginning to smell to me like you guys are fighting a little bit of a guerrilla warfare here in terms of making sure that as much as possible, you salvage this thing into the Supreme Court.
Here's it. But in the meantime, Judge McCurndt says to the Attorney General's office, come up with a...
Come up with a non-discriminatory means of inquiry.
And the Attorney General's office says not us, come up.
Right, they say that it's not, A, it's not their responsibility, B, that they're not really a party to the action because the counties are the ones that are at fault, and that the state does not have to play an active role in promulgating rules and regulations that the counties should follow.
The counties, in a sense, in their opinion, are independent entities that act on their own, and therefore should create their own rules and regulations.
Now, Jack, I've been talking to you about this for years, and you've been complaining, at least between us, that the Attorney General has been moaning and bitching all along about getting brought into this thing. Why?
Well, I think that this is for political reasons. I think the State Board of Elections has made up of both Republicans and Democrats, and, you know, that they're conflicting political pressures on the Attorney General's office, and they just don't feel that it's in their best interest to be involved.
Let's see if I understand this. Are you saying that because both Democrats and Republicans in many of these college communities don't want those kids voting, and they're the real voters, and they're the ones who have all the political cloud, that in fact the Attorney General is scared to get involved?
Yeah, I think that's it. I think they don't want to offend some of the best political interests of the state, and some of the Republican officials on the State Board of Elections.
Isn't that strange because one would think maybe I'm wrong, but it seems to me that the demographic's doog suggests that more students will vote Democratic than Republican, and hear you have a Democratic Attorney General who is say, boy, I'm going to keep my hands off of this case, even though it might help us.
I think it would help the Attorney General if he took his stand on behalf of the students, but I don't think that the Attorney General at this point, perceives it that way.
I think it would take some political courage on his part to make a ruling that would be against some of what I may characterize as best of interest.
In other words, the State Board bureaucracy plus the upstate voters that have a track record of voting, where students have no track record of voting.
And what about his excellency, the governor? Where is he?
Well, he has another, I mean, the governor took the position during his campaign that he would support student voting, right?
And has made, has paid it some whip service, but in fact, has not put any pressure on the State Board and has not put any pressure on his Attorney General to make a definitive declaration on behalf of the students.
In other states, Attorney General did come out on behalf of the students.
Mark White was now governor of Texas when he was Attorney General came out with an advisory opinion that students throughout Texas should be allowed to vote in their college communities after a similar court decision came down from a federal district court in Texas.
The scenario in Texas is almost exactly parallel to New York and Mark White took a strong position and students have been able to vote as a result of that.
Okay, but of course we'll be waiting to see what the Supreme Court does, whether they grant Sir Sherari on this whole thing, but assuming that we don't hear anything about that for a while, let's get philosophical just for a second.
Everything that I have written about or I've heard about students says that they are lazy when it comes to voting L-A-Z-Y, they don't get out.
And Massachusetts where they have the right to vote, I've talked to political scientists on the University of Massachusetts faculty who says you can't bomb them out of their lethargy in order to go and vote.
So what's all a bruhab about?
Well, my position has been, of course that's true historically as you point out in Massachusetts.
There have been some communities in New York State where students have come out in greater numbers in certain elections.
I think in Ithaca they came out fairly heavily in the 1980 US senatorial race again in 1982 in the gubernatorial race in the 1984 presidential election.
The only communities carried by Mondale outside of the city of New York were in college communities.
He carried, if the guy he carried, New Paul, if he carried, Binghamton, he carried Syracuse.
Is that an argument for against student voting?
Well, that's an argument that they will vote.
Well, it's an argument that you could take that either way, but it's also an argument that I think that contradicts the concept that students would not vote.
I think the problem we've had as you know is in local elections where students have not perceived the impact.
And you wrote a column on this the other day which I thought was excellent that people in general don't perceive the impact they can have on local elections.
And students are no different. They don't vote in local elections.
And they don't understand that they could elect town justices and police commissioners and all the rest which would have a tremendous impact on their day-to-day lives.
When you're 106 years old and you've passed on to your greater award, do you think that your tombstone might say,
here lies Jack Lester, he tried to get students to vote but couldn't.
I could say that and you know it's not something I would be ashamed of.
Attorney Jack Lester.
That's that time of the show that I love the most when I get to talk to Ace Newsman, Bill Groldy, my pal.
Bill, what's the hottest thing in all of me this week?
Well, it has to be the upcoming special session next week which looks like it's really going to happen after several weeks of not happening and finally another leaders meeting this past week.
And they're going to physically be an alveny whether they get what Governor Cuomo wants or not is another matter altogether because as we heard in the report earlier, Senator Anderson remains pretty much adamant about what he wants and when Senator Anderson wants something, he's either going to get it or there's going to have to be further negotiations.
Yeah, it's very, very interesting.
Apparently things have broken down between the Governor and the Republicans and what's on everybody's lips is why is this governor who is a natural conciliator, a man who does not really like to fight.
And in fact, who some people have said has been somewhat damaged although judging by his public opinion polls, it's hard to see why, somewhat damaged by the fact that he has perceived not to be a fighter, not to be somebody who will always go to the wall with people.
Why he's gone ahead and done this I hear his staff was very anxious to have him show his medal and also there are some other theories. One of them is that if in fact he waits until next year, that's the year before the legislature comes back.
If he can resolve a whole bunch of these problems in a quick special session toxic torts.
The medical malpractice how you ensure municipalities that sort of thing that he could have down hills sailing, but of course the Republicans know that also is still another theory that says that if Warren Anderson gets brought kicking and screaming back into this special session, then we have what is opening of really the legislative campaigns for the following year.
There are some people frankly I don't agree with them who think that the state senate is vulnerable that the Democrats may take it this year in which case, you could embarrass them on issues such as toxic torts and say well the governor tried to do the right things Stanley think tried to do the right thing and they wouldn't in the DES mothers can't sue and that sort of thing so that it may be a scenario still another scenario suggests bill that that by bringing Anderson in on this
now practicing right now he's able to turn around to his constituency the doctors in this case and say to them look I've tried to help you but you can't ask for the world I'll get you less but you better settle now where your rates are going to go up 78% so that and certainly it is clear that Speaker think who is supposed to be behind much of this move to bring the legislature back in session has decided to draw the line and that they are not going to give in on this business of
getting a limit on how much a doctor can be sued for in pain and suffering. And that's really the basic that's the bottom line that's really the the bone of contention in the whole thing and what I'm hearing is that somehow they're going to find a way not to get it resolved one way or another.
Could be you know bill I suspect that there are a lot of people out there who simply don't give a damn about this issue.
It's got to be very true because it's an immensely complicated issue and it also deals with doctors and lawyers.
Oh everybody hate right. Well I mean I think probably more people hate the doctors the lawyers than the doctors but the truth is a lot of people perceive and we're hearing this all over the place from our people in far outpost especially not from the Albany area.
We're telling us that people don't understand the issue they don't really like it they think the doctors can afford to pay their malpractice rates.
They think the lawyers are thieves and connivers and say they say a plague on all your houses we're just not all that interest in this whole thing.
What is going to hit home though is the overall liability issue now we're seeing we're seeing school districts and the architects were in Albany late this week to say how architects are getting zapped by it.
We're seeing a lot of things that are a lot closer to home than the sort of issue of medical malpractice which always seems to be fairly far off involving immense amounts of money but that entire liability issue is one that is I think you know being understood now by the general population if it isn't now we'll be soon.
It's probably the undoing of the doctors in a way in the medical malpractice issue because at this stage of the game there are a lot of people in Albany saying hey there problem is no different than anybody else's if a rufra goes up there he's got his rates of quadrupled if a town has to fix its roads and pay everybody who runs into a into a pothole and therefore their liability has gone up why should the doctors be treated any but differently and frankly it's an interesting question.
Thanks Bill that's our show for this week join us again next week for another look at state government and politics please address comments and questions to us at WAMC box 13000 Albany New York 12212 I'm Alan Chartock.
The legislative Gazette is a production of WAMC news Alan Chartock is executive producer this program is made possible with funds provided by the state University of New York College at New Pulse.
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