JUNE 19, 2017
The New York State Bar Association is calling for a state Constitutional Convention because New York “should not forfeit this rare, generational opportunity to modernize and significantly improve the Constitution that forms the foundation of state government.”
On November 7, New Yorkers will vote on whether to authorize a Constitutional Convention which, if approved, would be the state’s 10th Constitutional Convention since 1777.
At its June 17, 2017, meeting in Cooperstown, the Association’s House of Delegates voted 111 to 28 (with one member abstaining) to endorse a Constitutional Convention, or “ConCon.” A day earlier, its Executive Committee voted unanimously to support a convention.
“As an association of attorneys, we are acutely aware of the shortcomings of the state Constitution, which touches on the lives of every New Yorker. A convention would focus public attention on ways to modernize and improve the operations of state government, especially our court system,” said State Bar President Sharon Stern Gerstman of Buffalo.
“As a working legal document, our state Constitution is broken in significant respects. Virtually all commentators agree it needs an overhaul,” said Henry Greenberg of Albany, who chairs the Committee on the New York State Constitution. “It is a 52,500-word behemoth, filled with minutia and obsolete provisions, and even sections that the U.S. Supreme Court has declared unconstitutional.” The committee drafted the report approved by the Association.
In New York, there are two ways to propose amendments to the state Constitution, either by the Legislature or by a Constitutional Convention. In either case, the voters get the last word: all amendments must be approved by a statewide referendum.
The State Bar’s “Report and Recommendations Concerning Whether New Yorkers Should Approve the 2017 Ballot Question Calling for a Constitutional Convention” sharply criticizes the Article VI of the Constitution, known as the Judiciary Article, which totals 16,000 words. In contrast, the Judiciary Article of the U.S. Constitution is only 375 words.
The report calls for the restructuring of the state’s massive court system. “For too long lawyers and their clients have had to accept and endure a costly and byzantine system that few understand, and no one can justify,” it says. “Despite the best efforts of reformers, the Legislature has shown little interest in consolidating trial courts or taking other steps that would significantly improve the delivery of justice.”
New York has 11 trial-level courts. In contrast, California has one. In New York, a mother who was beaten by her husband and seeks a divorce may be required to appear in three different courts before three separate judges to resolve her legal matters.
Noting the Legislature has failed to address structural problems with the court system for 50 years, the State Bar report concludes: “A convention presents the one practical opportunity this generation will likely have to modernize and restructure New York’s court system.”
A convention, the report said also should address constitutional obstacles to greater voter participation, among other reforms.
Examining Pros and Cons
Nearly half of the 33-page report is devoted to examining the pros and cons of a Constitutional Convention. While acknowledging “thoughtful arguments against a Convention,” the report concluded they “do not outweigh the promise and possibility of a convention.”
“In the end,” the committee concluded that the state “should not forfeit this rare, generational opportunity to modernize and significantly improve the Constitution that forms the foundation of state government. Accordingly, the committee recommends that the State Bar support the convention call, primarily because a convention presents the one practical opportunity this generation will likely have to modernize and restructure New York’s court system.”
In the report, the State Bar renewed its 2015 call for a Con Con preparatory commission to deal with issues concerning the delegate selection process, the Federal Voting Rights Act, campaign finance and double-dipping by delegates who draw dual salaries as state legislators or sitting judges.
Since August 2015, the Association’s Committee on the New York State Constitution committee has conducted a thorough examination of the state Constitution. It has heard presentations from 29 experts, issued five substantive reports, and participated in educational symposiums, webinars and continuing legal education programs that have contributed to public discourse about a Constitutional Convention.
The diverse 29-member committee, created by past President David Miranda of Albany, includes four past presidents of the State Bar, two former Court of Appeals judges, sitting and retired judges, former elected officials from state and local government, former high-level executive and legislative branch officials, scholars and other prominent attorneys.
The State Bar’s recent 33-page report is available at www.nysba.org/constitutionreport0617.
The four previous reports addressed: creating a preparatory commission; the “Home Rule” provision governing the relative powers of state and local governments; the “forever wild” provision and Conservation Article; and the structure of the state Judiciary. Copies of those reports are available at www.nysba.org/nyconstitution/.
The 72,000-member New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.
Contact: Lise Bang-Jensen
Director of Media Services