Frustrated by what they regard as the long-standing failure of the Legislature to address critical shortcomings in the state Constitution, organized bar groups are urging voters to seize on Nov. 7 the rare opportunity to call a constitutional convention (a “ConCon”) to propose amendments of their own.
“We’ve pretty much given up” on the Legislature as a path to change, said Sharon Stern Gerstman, president of the New York State Bar Association.
In June, the state bar’s policy-making House of Delegates voted 111-28 to accept the report of a committee that recommended that it support a convention call by the people. Following that it took the highly unusual step of forming a political committee to advocate for a yes vote.
The New York City Bar Association also is backing a convention, based on a task force report that concluded, despite concerns it shares with the state bar about the delegate selection process, “without a convention there is little hope” of needed reforms.
But support for a convention is by no means unanimous among those lawyers who have focused on the issue.
The Nassau County Bar Association expressed its opposition in a statement from its president, Steven Leventhal, urging that reform be sought in other ways. “Undertaking a statewide convention would involve significant cost, take several years and may not result in meaningful change,” he said.
Moreover, many civil rights, legal aid, pro bono and environmental attorneys also are opposed. Three constituent bodies within the state bar and nine within the city bar objected to the parent groups’ support of a constitutional amendment.
Opponents acknowledge that reform is needed, but fear that a ConCon called in an unpredictable political climate would put at risk many cherished rights and protections embedded in the Constitution.
“The entire Constitution, both good and bad, would be up for grabs,” said Donna Lieberman, executive director of the New York Civil Liberties Union.
Amendments are usually initiated by legislators. They must be approved by two successive elected Legislatures and ratified in a statewide referendum. However, the Constitution provides that every 20 years, voters must be asked if they want to bypass the legislators and call a ConCon.
If the voters say yes this year, a total of 204 delegates will be elected in 2018—three from each state Senate district and 15 statewide. They will convene in April 2019. Whatever the delegates propose will not be the final word. Before they became law, they would have to be approved in another statewide referendum in November 2019 if the convention wraps up six weeks before the vote.
A convention would be the first in 50 years; voters turned down all the suggestions of the 1967 convention, which were grouped in a single ballot proposition. In 1997, a convention call was voted down in a statewide referendum.
Ironically, neither the state nor the city bar endorsed a ConCon in 1997, partially because they were still hopeful that reform could be accomplished through the customary amendment process. That hope has faded.
“This is the last best hope for fundamental reform,” Greenberg Traurig shareholder Henry Greenberg, who chairs the state’s committee on the New York Constitution, said in making the case for a constitutional convention at a recent forum jointly sponsored by the city bar and the New York County Lawyers Association.
Greenberg added that the Legislature has the power to fix the Constitution, but “they don’t want to.”
“Our democracy is broken,” said Proskauer Rose partner Michael Cardozo, who was president of the city bar in 1997. Without a convention, “how are we going to fix it?”
Lawyers and good-government groups who support the convention are confident that properly educated and motivated delegates could produce measures that would restructure the courts, increase dismally low voter participation, curb corruption in Albany, trim the power of state government to dictate to localities and establish new protections such as the right to counsel in civil proceedings, clean air and water and reproductive choice.
“There’s so much opportunity,” said former Chief Judge Jonathan Lippman, now of counsel at Latham & Watkins, an advocate of civil legal aid and criminal justice reform. At least, he said, issues bottled up in the Legislature would get an airing.
Roberta Kaplan of Kaplan & Company, who argued for the right to same-sex marriage at the U.S. Supreme Court, said that a convention is needed to firm up defenses against undemocratic actions by the Trump administration. “New Yorkers have to stand up,” she said.
Many attorneys have made $500 or $1,000 contributions to a Committee for a Constitutional Convention, which is managed by Evan Davis, senior counsel at Cleary Gottlieb Steen & Hamilton and a former president of the city bar and counsel to Gov. Mario Cuomo. As of Oct. 23, Davis himself had made cash and in-kind contributions of $6,148 and a Friends of Evan Davis Committee had raised $11,000 for the pro-convention group.
The state bar has contributed $25,982 in staff and in-kind services to its political committee, which is separate from the Davis group.
Court reform is the “issue that means the most to us,” said Gerstman, the state bar president.
A particular sore point to the bar is the existence of 11 trial courts, which forces domestic violence victims and other litigants to troop from judge to judge for a hearing. Also, a court-appointed commission estimated in 2007 that inefficiency of the system has added $500 million to its annual cost.
“Court reorganization is a matter of supreme importance to the legal profession, and a subject on which the state Bar has long and repeatedly advocated,” writes the report of Greenberg’s committee. “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. 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.”
But if advocates of a constitutional convention hope meaningful reform will emerge, opponents fear it could open a Pandora’s box, undermining provisions such as aid to the needy (Article XVII), a free public education (Article XI), “Forever Wild” protection in the Adirondacks and Catskills (Article XIV); the right of labor to organize and bargain collectively Article I) and guaranteed pension benefits (Article V).
Opponents argue that the Senate districts have been gerrymandered in a way that violates one-man, one-vote principles, and the delegate selection process could be challenged in court. They predict that delegates would have the same political pedigree as members of the current Legislature because they would have the skills and financial backing to win election. And they say the delegates would view the convention as, in Lieberman’s words, “an invitation to horse trading.”
The opponents also fear that the convention deliberations would be controlled by moneyed special interests and manipulated by rightist billionaires. Moreover, they say that a statewide referendum might not prove a safeguard in 2019. There would be no guarantee delegate proposals would be voted on one-by-one, and turnout is likely to be sparse.
In any case they point to last year’s election of President Trump as evidence of the uncertainty of the current political environment.
State bar environmental and energy law section chairman Kevin Bernstein, a member of Bond Schoeneck & King in Syracuse, told state bar delegates that many members of his section feared dangers from weakening forever wild in a convention “far outweigh” any prospects of enacting an environmental bill of rights.
Seymour James, attorney-in-charge of the Legal Aid Society, cautioned that many low-income clients around the state rely on Article 17, which provides that the “aid, care and support of the needy are public concerns.”
James, a past president of the society, said frequent attempts had been made to undermine Article 17 and that the risk to those clients from a constitutional convention “is simply too great not to take the prudent path of voting no.”
Susan Welber, a staff attorney in Legal Aid’s Civil Practice, said in an email that “we would need a guaranty that a convention would not result in the retraction of those rights. However, given that New Yorkers are asked to decide whether to have a convention a good year before we will know who the 204 delegates are and what their priorities will be no such guaranty can be given.”
According to the city bar dissenters, “This is not the moment in the life of the body politic to subject the New York State Constitution to the influence of unlimited contributions on an unpredictable Convention and highly stressed electorate in the optimistic hope that they will keep what is good in our State’s foundational charter and improve what is not.”
However, ConCon supporters argue that there is nothing in the history or demographics of the state to justify these concerns about rights, many of which were proposed by previous conventions. They point out, for instance, that Hillary Clinton crushed Trump in New York by 59 to 36.5 percent, taking 40 of 63 state Senate districts in the process. Democrats have a four-million registration edge.
City bar president John Kiernan said that the constitutional provisions opponents fear could be on the chopping block are very popular. “New York is as progressive as it’s ever been,” said Kiernan, a partner at Debevoise & Plimpton.