The Time Is Now Special Issue on the Constitutional Convention Vote New York State Bar Association

October 2017 Vol. 89 | No. 8 JournalNEW YORK STATE BAR ASSOCIATION

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Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8735 NEW YORK STATE BAR ASSOCIATION NEW YORK STATE BAR ASSOCIATION Journal Board of Editors Editor-in-Chief David C. Wilkes Tarrytown e-mail: [email protected] Hannah R. Arterian Syracuse Marvin N. Bagwell Westbury Brian J. Barney Rochester Mark A. Berman New York City Katherine W. Dandy White Plains Janet M. DiFiore Albany Elissa D. Hecker Irvington Michael J. Hutter Albany Barry Kamins Brooklyn Paul R. Kietzman Latham Daniel J. Kornstein New York City Ronald J. Levine New York City Julia J. Martin Syracuse annual Marian C. Rice Garden City 2018 Managing Editor meeting JanUARY 22 – 26 Daniel J. McMahon Albany e-mail: [email protected] Associate Editor Nicholas J. Connolly NEW YORK CITY Tarrytown New York Hilton Midtown Publisher Pamela McDevitt Executive Director

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NYSBA ADVERTISING Network Media Partners Attn: Holly Klarman, Account Executive 307 International Circle, Suite 190 Hunt Valley, Maryland 21030 Email: [email protected] Phone: 410.584.1960 Get Social: #nysba18 EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961 – 1998 Contents october 2017 the time is now Special Issue on the Constitutional Convention 8 12 environmental Human Rights in New York’s Constitution by Nicholas A. Robinson 18 “It Is a Constitution We are Writing” A Concise, Clear and Coherent Constitution for New York by Peter J. Galie and Christopher Bopst 25 Home Rule: Elusive or Illusion? by Gerald Benjamin Departments 30 A Constitutional Convention — 5 President’s Message Opportunities to Restructure and 6 CLE Seminar Schedule Modernize the New York Courts 36 Burden of Proof by tephen ounger and illiam chmedlin S P. Y W F. S by David Paul Horowitz 34 Why New York Needs a Constitutional 48 Contracts Convention by Peter Siviglia By Lillian Moy 50 Attorney Professionalism Forum 39 How an Uncommonly Silly Law Led to 52 Index to Advertisers a Host of Very Consequential Supreme 54 Becoming A Lawyer by Lukas M. Horowitz Court Decisions 54 New Members Welcomed By C. Evan Stewart 61 Classified Notices The Next Wave of Security 44 63 2017–2018 Officers By Brian Podolsky 64 The Legal Writer 46 What’s Hiding in Your Documents: by Gerald Lebovits The Dangers of Metadata By Nina Lukina and Eric Christiansen

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2017 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

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4 | October 2017 | NYSBA Journal LawPay is a registered ISO of Merrick Bank, South Jordan UT President’s Message SHARON STERN GERSTMAN NYSBA, Politics and a Constitutional Convention n June 17, 2017, our House of Delegates voted (111–28) to Osupport a “Yes” vote on the November 7 ballot question: “Shall there be a convention to revise the Constitution and amend the same?” Following this vote, NYSBA created a political committee, as required by the New York State Election Law, in order to allow us to advocate for this “Yes” vote. The creation of this political committee, as well as the House of Del- egates vote, was a departure from our legislature to fine tune the proposal marize all of the policy positions of normal apolitical stance. We try very and seek its passage. This simply did NYSBA with respect to the Judiciary hard to remain politically neutral in not happen. Article that could be fulfilled with a order to enhance our reputation as an In 1997, we had recently witnessed convention. Nicholas Robinson shows objective, balanced voice when advo- (1995) the enactment of a law reinstat- the need for environmental rights and cating on the issues that matter most to ing the death penalty. NYSBA leaders what constitutional protection for the us as an Association: The improvement were fearful of the election of con- environment could look like beyond of law for the benefit of the citizens of vention delegates who would seek the “forever wild” clause. Lillian Moy, the state, the preservation of an inde- to diminish cherished constitutional who has dedicated her life to solving pendent judiciary, and the indepen- rights like aid to the needy, workers’ the legal problems of the indigent, tells dence and integrity of the legal profes- rights and the “forever wild” clause us why she is willing to risk the “aid to sion. To be sure, we have advocated protecting our parks and forests. While the needy” clause in order to solve so for constitutional amendments in the there is still a risk of loss of these rights, many problems rooted in the current past, most notably amendments to the we believe the current populace would constitution. These articles are meant Judiciary Article and the constitutional not elect convention delegates who as further enhancement of the possibil- provisions dealing with voting rights. would diminish these rights. In fact, ities a constitutional convention holds. This time, however, we have gone we believe that the delegates elected They supplement the excellent work of whole hog – we support the conven- by the citizens of New York in 2018 are the Committee on the New York State tion and we are actively advocating for likely to be those interested in enlarg- Constitution, chaired by Henry Green- a “yes” vote. ing rights granted by the State Consti- berg, which includes five comprehen- We have had the chance to do this tution. Since 1997, we have seen the sive reports, available to you at www. before, and have declined. In 1997, general expansion and acceptance of nysba.org/constitutioncommittee. when this was last on the ballot, we rights for all citizens by the people of Our hope is that all of our members did not support a convention. What is New York. We believe this is the right use this issue and the material avail- so different this time? In 1997, we were time to have a convention. able on our website as a resource to still hopeful that court reorganization The articles in this issue of the Jour- be shared with family and friends could be accomplished by the legisla- nal explore the potential we have to who may call on you to advise them tive amendment process. In addition to create a magnificent new constitution. on the ballot question. We believe the the process of amendment allowed by It is an issue of hope – about all potential a constitutional convention a constitutional convention, the consti- the good we can do. Peter Galie and brings warrants our treading into the tution can be amended by a proposal’s Christopher Bopst show us what a realm of advocacy for a “yes” vote passage through two successive leg- modern constitution could look like. on November 7, 2017. We hope you islatures and its ratification by ballot. Gerald Benjamin outlines a balance agree. n A proposal for court reorganization between municipalities’ autonomy was passed by the legislature in 1986, and a cohesive statewide policy in but failed to pass a second time. We his discussion of home rule. Stephen Sharon Stern Gerstman can be thought that we could work with the Younger and William Schmedlin sum- reached at [email protected]. NYSBACLE Tentative Schedule of Upcoming Programs (Subject to Change)

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The Time Is Now Special Issue on the Constitutional Convention Vote

very November New Yorkers go to the polls to elect the leaders who will shape their lives. In some years, Ethe elections involve national and state candidates, and in off years the candidates, and the offices they hope to occupy, are largely locally based. But once every 20 years New Yorkers have an opportunity to vote for someone other than a political candidate or party – they can vote for, or against, themselves. That’s because the drafters of the New York State Constitution wisely provided an opportunity for the people to revise and update that document once in every generation, to reflect the times and conditions of present day New York, and to prepare for changes to come. No one political candidate, no matter how popular, or one political party or movement, can make that decision. It’s the people’s prerogative. If they vote “yes” in November to call for a constitutional convention, they will be voting to empower themselves to shape their future – New York’s future. If they vote “no,” they will be voting to disenfranchise themselves. This year, it’s seems like such an easy choice to vote yes. Why deny ourselves the opportunity to bring our constitution in line with the times? And yet old suspicions linger from prior years when voters opposed a constitutional convention on various grounds – fear that precious rights will be sacrificed for narrow partisan or ideological agendas, or that new restrictions will be introduced and adopted, or that money needed to conduct a convention could be used for myriad other worthy causes. The list goes on. We at the New York State Bar Association believe these concerns are unfounded and that it is time – past time – for a constitutional convention. As an organization that serves lawyers, we believe a constitutional convention presents an opportunity to overhaul the state’s court system to better serve all New Yorkers – reforms that are way overdue. This edition of the Journal contains articles that make the case for reform on several fronts, but all with the common theme that the present document is archaic and unwieldy. As the State Bar’s Report and Recommendations Concerning Whether New Yorkers Should Approve the 2017 Ballot Question Calling for a Constitutional Convention makes clear, the state’s massive court system forces New Yorkers to enter into a maze of trial courts that make up a “costly

NYSBA Journal | October 2017 | 9 and byzantine system that few understand and no one so many areas. They make their case for a constitutional can justify.” convention by noting that state constitution of today is In their article, A Constitutional Convention – filled with “provisions that are “obsolete, unnecessary, Opportunities to Restructure and Modernize the New York out of place, have been superseded by subsequent Courts, Stephen P. Younger and William F. Schmedlin note amendments, or conflict with the U.S. Constitution.” that it has been decades since there last was comprehensive In another article, Nicholas A. Robinson paints reform of Article VI, which creates the operating system a disturbing picture of environmental decline, from for New York courts. As a result New York has a court deferred maintenance of water plants to lack of adequate system “that has major structural barriers which impede funding for pollution controls and mitigating climate ready access to the courts for all New Yorkers – whether change emissions. He calls for the constitutional for an indigent litigant who cannot afford a lawyer or for convention to recognize a “fundamental human right a sophisticated multi-national corporation.” to the environment for all New Yorkers, to safeguard But it’s not only the judiciary that needs restructuring. against future neglect of resources.” There are other reforms that are necessary as well, and We don’t deny that some within our own ranks take some of them are discussed in this special issue of the issue with our pro-convention stance. Differences of Journal. Professor Gerald Benjamin’s article explores opinion are to be expected in any large organization, let home rule in New York State and its constitutional alone one composed of members who have made service implications. As he notes, the line dividing state and local to the law their life’s work. But on balance, the arguments powers has become so eroded over the centuries that it for a convention far eclipse those against one. That is just has become harder and harder to discern where it was the point Lillian Moy makes in her overarching rebuttal drawn. The result is an amalgam of directives, including to the convention critics. As she notes, for all the fears that state mandates that must be funded by local taxpayers, the opponents may have of a convention’s bad outcomes, not the state lawmakers who imposed them. Professor one safeguard remains firmly in place – in the end, it Benjamin outlines a list of reforms that would clarify won’t be the delegates who will decide what to amend or “home rule” powers. add to the constitution; it will be up to the voters to accept In their article, authors Peter Galie and Christopher or reject those changes. Who better to have the last word Bopst show how antiquated our state constitution is in than we the people? n

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10 | October 2017 | NYSBA Journal A LEAGUE OF THEIR OWN. Congratulations to our winn ing Mediators & Arbitrators

Hon. Elizabeth Bonina Richard P. Byrne, Esq. Hon. John P. DiBlasi Former Justice of the Supreme Court Commercial Specialist Former Justice of the Commercial Division Specialties Include: Specialties Include: of the Supreme Court, Westchester County Personal Injury, Labor Law, Medical Malpractice, Commercial, Construction, Disability, Employment, Specialties Include: Nursing Home, Product Liability, Property Labor Law, Insurance and Reinsurance, Risk Commercial, International, Finance, Defamation, Damage, Real Estate, Administrative Law, Transfer, Product Liability, Property Damage, Employment, Entertainment, False Imprisonment, Sports Law Personal Injury/Negligence Fraud, Insurance Coverage, Intentional Torts, Land Use, Professional Malpractice 3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Mediator 3 Best Individual Mediator

Joseph L. Ehrlich, Esq. George Freitag, Esq. Kenneth Grundstein, Esq. Hearing Officer Hearing Officer Former NYC Chief Settlement Negotiator Specialties Include: Specialties Include: Specialties Include: Insurance, Labor Law, Negligence, Premises Insurance Law, Labor Law, Medical Medical Malpractice, Nursing Home, Labor Liability, Product Liability Malpractice, Negligence, Personal Injury, Law, Catastrophic Injury, Product Liability, Premises Liability, Torts and Product Liability, Property Damage Wrongful Death

3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator 3 Best Individual Mediator

Susan Hernandez, Esq. Howard J. Kaplan, Esq. Hon. E. Michael Kavanagh Former Chief of Staff to Presiding Justice Hearing Officer Former Assoc. Justice, Appellate Division, Appellate Division, 1st Dept., Mediator, 1st & 3rd Depts. Specialties Include: Bronx County Specialties Include: Insurance, Legal Malpractice, Negligence, Commercial, Construction, Business Specialties Include: Personal Injury, Premises Liability, Product Valuation, Insurance Coverage, Employment, Labor Law, Legal Malpractice, Medical Liability Malpractice, Negligence, Personal Injury, Professional Malpractice, Medical Malpractice, Premises Liability, Torts & Product Liability Nursing Home, Labor Law 3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator

Peter J. Merani, Esq. Michael R. Rossi, Esq. Hon. Peter B. Skelos Hearing Officer Hearing Officer Former Assoc. Justice, Appellate Division, Specialties Include: Specialties Include: 2nd Dept. Personal Injury, Property Damage, Labor Law, Insurance, Labor Law, Negligence, Premises Specialties Include: Product Liability, Insurance Coverage, Liability, Product Liability Commercial, Construction, Labor Law, Construction, International Insurance Coverage, Professional Malpractice, Catastrophic Injury

3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator

® The Better Solution

Nicholas A. Robinson is the Kerlin Professor of Environmental Law By Nicholas A. Robinson Emeritus at the Elisabeth Haub School of Law at Pace University. He also served as General Counsel for the New York State Department of Environ- mental Conservation from 1983 to 1985.

here is an environmental case to be made in favor of 17,000 pesticides are in use today and virtually all New convening a constitutional convention. On the 200th Yorkers carry trace amounts of pesticides in their bodies.14 anniversary of the birth of Henry David Thoreau, we More than 50 percent of New York’s beehive colonies died T 15 can remember his admonition: “Live in each season as it last year. Moreover, amidst a warming climate, Aedes passes; breathe the air, drink the drink, taste the fruit, and aegypti mosquitos are spreading to New York City’s door- resign yourself to the influence of the earth.”1 What has this steps, bringing Zika (Flaviviridae, genus Flavivirus) and other to do with the Constitution? “new” viruses to the region.16 Climate change promises New Yorkers suffer today from a deficit of environmen- additional diverse impacts. Sea levels inexorably rise, with tal justice. Many have assumed that they are protected by 38 percent of New York City threatened with inundation environmental law reforms enacted after discovering Love in coming decades.17 Extreme weather events range from Canal.2 The residents of Hoosick Falls know better. Since intensifying summer heat18 to increasingly heavy precipita- before 2014, they have had to drink, bathe in, and cook with tion19 and abnormally severe storms reminiscent of Super water laced with toxic perfluorooctanoic acid,3 long before Storm Sandy in 2012.20 New York’s government acted to protect them.4 The lax Across New York, state agencies and local governments oversight of the Saint-Gobain Performance Plastics Corpo- have done little to strengthen capacity either to cope with ration’s facility resulted in contamination of village wells predicted climate related impacts or to bolster ways to and neighborhoods with wastes from producing its fire- recover from climate-induced disasters. The Department of fighting foams, coating additives, and cleaning agents. This Environmental Conservation has a modest program offer- July, the U.S. Environmental Protection Agency declared ing technical advice.21 Albany’s timidity pales when com- this area a superfund site.5 pared to the proactive and often robust laws and programs Across New York, environmental crises fester. The evi- of other nations. Columbia Law School provides these laws dence is alarming. Long Island is dotted with 256 superfund for all to study.22 However, Albany pays scant attention to sites, imperiling its three sole-source aquifers, which supply experts at Columbia or New York’s other university centers. all of its drinking water.6 Lobsters are entirely gone from Environmental degradation is bad and getting worse. Long Island Sound and fish are disappearing too.7 In New The calamities noted above are not isolated or one-off York’s counties from Westchester to Erie, persistent air pol- events, and the list is longer. It seems like no one in New lution causes one in 10 of the state’s citizens to suffer from York government is “connecting the dots.” There was a asthma.8 The South Bronx has among the worst asthma rates time when citizens annually received a report about these in America, compounding denials of civil rights there with trends. The United Nations still reports about the gathering environmental assaults.9 Invasive species, such as bloody- crisis globally,23 but within the United States official report- red shrimp (Hemimysis anomala), are aggressively invading ing is scant. The Council on Environmental Quality has not New York’s upstate waterways, displacing native fish.10 prepared its required annual environmental report since Expanding woolly adelgid (Homoptera: Adelgidae) infesta- 1997,24 and upon taking office President Donald Trump tions threaten death to all New York’s hemlocks.11 Numbers expelled CEQ from the White House. Avoiding their duty to of songbirds are thinning across the state.12 The volume of warn citizens about environmental threats, political leaders chemical pesticides used has increased enormously since benefit from public ignorance. Civic pressure on politicians Dr. Rachel Carson wrote Silent Spring.13 Approximately is conveniently avoided: “out of sight, out of mind.”25

12 | October 2017 | NYSBA Journal Currently the federal government seeks to roll back A Convention Could Help federal environmental regulations.26 State agencies, such New Yorkers do not deserve environmental gridlock in as DEC, which rely upon federal financial assistance to Albany. The way to remedy this delinquency is found in implement environmental regulations, face cutbacks. The Article XIX of the State Constitution. Every 20 years, vot- U.S. Environmental Protection Agency (EPA) is being reor- ers are obliged to answer the question: “Shall there be a ganized and diminished.27 While public interest litigation convention to revise the constitution and amend the same?” counters Trump administration violations of environmental Each generation has the duty to decide whether their con- statutes,28 judicial action is slow, and meanwhile federal stitutional system is appropriate for their needs. Thomas protection of the public is muted. Demoralized senior civil Jefferson inspired adoption of this provision. servants are retiring, and with it their experience.29 In short, When polls open on November 7, 2017, voters should New Yorkers cannot rely on Washington to protect the envi- reflect on how Albany has failed to protect their environ- ronment in their state. mental quality. A constitutional convention can insist that Albany once led the nation with its environmental con- state government meets its basic responsibilities. It could servation programs. No more. New York is not ready for recommend to the voters that New York’s Constitution federal withdrawals from protecting the environment. In recognize a fundamental human right to the environment recent years the legislature and governor have gradually for all New Yorkers. This constitutional right to the environ- slashed the funding for the Department of Environmen- ment would ensure that citizens in the future would not tal Conservation to the tune of $32.3 million in 2008-09.30 endure today’s neglect. Rather than enabling DEC to cope with wide-ranging, Twice before, in similarly troubled times, the voters con- environmental crises, this decreased funding is in inverse vened a constitutional convention to protect their environ- proportion to the state’s escalating environmental crises. By ment. In 1894, corruption in state government was rampant way of illustration, DEC’s budgets in 2011-12 were allocated and the state witnessed devastation to the forests in the $1,040.6 million, in 2012-13 $872.9 million,31 and in 2014-15 Adirondack and Catskill mountains from unlawful timber- $870 million.32 Comptroller Thomas P. DiNapoli reported ing. The remedy was to require in the Constitution that in 2014 that “[t]he state Division of the Budget projects that nature within the Forest Preserve “shall be forever kept as wild total DEC spending will decline this year and in each of the forest land. They shall not be leased, sold or exchanged, or be taken next three years by a cumulative total of 25.9 percent from by any corporation, public or private, nor shall the timber thereon the SFY 2013-14 level.”33 Such reductions effectively nullify be sold, removed or destroyed.”39 The Constitution further pro- the guarantees in New York’s Environmental Conservation vided that this clear right would be enforceable in the courts Law. by any citizen.40 This fundamental constitutional reform has The N.Y. Association of Counties has long complained been observed, enhanced and enforced ever since. In 1911, about deferred maintenance of New York’s aging water New York became the first state to create a Department of infrastructure: “deteriorating pipes, struggling wastewa- Conservation as a cabinet agency. ter treatment plants and water main breaks have become Whenever opposition arose to the “Forever Wild” Forest commonplace throughout the state. Comptroller DiNapoli Preserve, citizens invoked their right to petition courts to recently issued a report indicating the State would need an enforce the Constitution – and won. More than once legis- estimated $80 billion to repair, maintain and replace drink- lators enacted proposed amendments that would weaken ing and wastewater infrastructure in New York over the “forever wild.” Voters rejected them all. Thanks to this next 20 years.”34 While DEC’s core agency budget did not clearly framed environmental right, explicitly enforceable increase, enactment of a bill35 for long-delayed upgrades in in court, environmental degradation has never returned to water quality infrastructure it added $228 million to DEC’s the Forest Preserve. budget in 2017-18.36 However, there has been no bill to The second great reforms came in 1969, when the Viet- provide comparably adequate funding for maintaining air nam War generated anxiety and social unrest among New pollution control infrastructure, or for mitigating climate Yorkers. On the eve of the vast political protests that were to change emissions, or to curb the spread of invasive species. accompany the first “Earth Day” in 1970,41 all of New York DEC’s dedicated staff is left to do more with less, forced to was grossly polluted. Acid rain killed off fish in Adirondack practice a triage that betrays their agency’s statutory duties. lakes.42 In the worst “killer smog” incidents, one could see In short, Albany is reactive, not proactive. For example, only two to three blocks in Manhattan.43 Rivers had become DEC issues many reports, as is mandated by law,37 but open sewers across New York. Landfills were overflowing, neither DEC nor the governor offers a synthesis of what often filling in precious wetlands. The convention took DEC does or cannot do. Sensible advice in the reports of the action, drafting a “Conservation Bill of Rights.” When vot- comptroller is disregarded.38 The legislature does not act. ers rejected that convention’s over-all constitution, for rea- The inattention to environmental regulation tips the scales sons unrelated to the environment, the voters adopted this in favor of “business as usual.” “Conservation Bill of Rights” by ballot in 1969. It appears as Article XIV, Section 4 in the current Constitution.

NYSBA Journal | October 2017 | 13 After 1969, the Constitution mandated pollution control, New York deserves better. No one should be without a protection of the environment, required natural resource remedy when his or her water is poisoned or breathing air is stewardship, as well as preserving natural beauty and harmful. An asthma victim’s rush to the hospital emergency sustaining agricultural lands. Governor Nelson Rockefeller room is evidence enough. Air pollution kills. Noone should called on the legislature to observe this “Conservation Bill tolerate a state government that allows imposing such injus- of Rights” through rapid enactment of new environmental tice on its people. Proverbially, do we not all live in Hoosick laws44 and by redesigning the Conservation Department Falls? A livable environment is a human right. We trace the as the Department of Environmental Conservation.45 Dur- recognition of human rights in New York to the Charter of ing the ensuing decade, many new state environmental Liberties of 1215. This Magna Carta54 set standards that we laws were enacted and support was given to DEC for their still observe: “To no one will we sell, to no one will we refuse implementation. or delay right or justice.”55 When electoral campaign con- It is manifestly time, once again, for a constitutional con- tributions result in Albany weakening environmental safe- vention to act. New Yorkers need to reclaim the high stan- guards, this and all other rights that all New Yorkers enjoy dard set by governors Theodore Roosevelt and Franklin D. are betrayed. This slippery slope will endanger “forever Roosevelt. Albany has lost sight of its duty to safeguard the wild.” In 1217, Magna Carta provided the first guarantees state’s environmental quality. In the past, governors Nelson of environmental rights.56 In 2017, it is time for New York Rockefeller and Mario Cuomo led New Yorkers with their to do the same. clear environmental agendas and a strong DEC.46 Incred- Of course, there will be opposition to recognizing an ibly since then, legislators and governors have tarnished environmental right. The New York State Bar Association this tradition by yielding to business lobbying that opposed has not taken a position regarding the enactment of a con- environmental public health laws.47 stitutional right to the environment. Weighing pros and Is it not time to fix Albany’s disdain for the environmen- cons, its Report last year on the environmental aspects of the tal wellbeing of the state’s citizens? How can New Yorkers Constitution did state that: prevent backsliding and erosion of laws that should protect [T]he narrow scope of [the Conservation Bill of Rights environmental health? The answer lies in establishing a consti- in] Section 4 in Article XIV is insufficient to address tutional right to the environment. Other states, such as Penn- New York’s new environmental challenges. In 1894, the sylvania, Montana, and Hawaii, provide a right to the envi- destruction of forests was deemed a crisis worthy of ronment, which would make such neglect unconstitutional. constitutional reform. The “forever wild” mandate was thus born. In 1969, pollution presented a comparable Additionally, 174 national constitutions abroad provide the crisis. The “Conservation Bill of Rights” was thus cre- 48 right to the environment, and worldwide it is customary ated. Today’s analogue may be impacts associated with for courts to enforce this right. Last June, Pennsylvania’s climate change…57 Supreme Court ruled that the Constitution’s environmental right obliged the Commonwealth to deploy revenues from This past August a Task Force on the Constitutional Con- oil and gas leasing for environmental protection.49 vention, convened by the NYSBA Section on Environmental Pennsylvania’s Constitution’s environmental right (Art. and Energy Law, endorsed adopting an environmental 1, Cl. 27) is a model for what New York could provide: rights provision.58 The people have a right to clean air, pure water, and What difference might an environmental right make? to the preservation of the natural, scenic, historic and Like all rights, a citizen could petition a court of law to have esthetic values of the environment. Pennsylvania’s pub- it enforced. In 2014 Hoosick Falls could have gone to court lic natural resources are the common property of all the at once and not had to wait for more than two years before people, including generations yet to come. As trustee of DEC or EPA responded. The right could ensure that the leg- these resources, the Commonwealth shall conserve and islature appropriate at least the minimal funding needed to maintain them for the benefit of all the people. provide environmental security, just as it does for the State It is high time that New Yorkers had a proper right to Police or other areas of public safety. Enforcing the environ- the environment. The existing “Conservation Bill of Rights” mental right could oblige New York authorities to prepare – good in its day – has not been sufficient to prevent or for climate impacts, for example by bolstering “resilience.”59 anticipate today’s environmental crises.50 Some in Albany’s Resilience preparation embraces green energy reforms. legislature seem to agree. Last spring, Assemblyman Steve New York would benefit from having a more robust “green Englebright won adoption of a relatively narrow51 constitu- energy” renewables portfolio, as has been adopted in Cali- tional amendment that would establish a right to clean air fornia60 and Denmark.61 Without the constitutional duties and water, by a vote of 103 to 27,52 but this proposal is now flowing from an environmental right, New York is hobbled held up in the Senate.53 It could take three or more years by continuing inertia, combined with lobbying for “business before this sort of amendment – if at all – is ever submitted as usual.” to the voters. Meanwhile state officials watch the environ- Opponents of recognizing the right to the environment degrade, and citizens have no constitutional right to ment will be vocal. Vested interests oppose environmental enforce. regulation as being “bad for business,” and some politicians

14 | October 2017 | NYSBA Journal uncritically echo this mantra as a “truth.” Contrary to this ernment” reforms made to the legislature have fallen on view, empirical evidence finds that regulation can stimu- deaf ears. Had New York a public-spirited legislature, it late competition, inventiveness, and economic growth.62 would have anticipated and prevented the environmental Others would sacrifice the public commonwealth for their health crises that now confront the state. It could have held private, short-term gain. Commercial freeloaders, who budget hearings and decided the levels of funding needed

The existing “Conservation Bill of Rights” – good in its day – has not been sufficient to prevent or anticipate today’s environmental crises. avoid costs by passing their own pollution burden over to by the DEC. Legislative oversight could have ensured that the ambient environment for all to endure, will object. From DEC was attentive to its duties, and did not allow crises to another quarter, some environmentalists oppose holding a emerge such as at Hoosick Falls. It matters for the environ- constitutional convention out of a fear that, were a conven- ment to have an active legislature. tion to be held, its delegates might propose weakening the Most fundamentally, a convention can address lapses in “forever wild” safeguards for the Adirondack and Catskill ethical behavior among legislators.71 Sustaining an environ- Forest Preserve.63 Others worry that the corruption, evident mental right depends on ethical legislators. The convention in the legislature,64 would infect a convention.65 However, can provide constitutionally defined standards for legisla- the conventions of 1894 and 1967 demonstrate that elections tive conduct, with systems to apply them. Environmental produced public-spirited delegates who overcame narrow stewardship depends upon having an honest and transpar- or even corrupt interests in order to embrace an effective ent legislature, capable of acting for the broad environmen- constitutional reform.66 The historical record demonstrates tal public interests. To secure this, reforms should address that such efforts, when tried in past conventions, always fair electoral procedures for the state legislature. First, failed. For instance, each convention since 1894 preserved gerrymandering of legislative district lines in New York is and enhanced “forever wild.” But even if unwanted amend- alarmingly pervasive. As other states already require, the ments did emerge, New York’s voters could vote them New York State Constitution should establish an indepen- down, just as they have each time that the legislature has dent commission to draw the lines for Assembly and Sen- tried to weaken “forever wild.”67 ate districts, to ensure fair representation of New Yorkers. It is because a constitutional convention is a unique Second, anyone who wins public office should be held to and one-time parliament that it has the independence to a “fiduciary” standard when representing citizens in the adopt an environmental human right. Delegates exercise Assembly or Senate. The common law over centuries has their public duties in a highly visible forum. Delegates are defined the duties of a fiduciary. It is high time that elected less likely to be swayed by interests who profit from pol- legislative office holders be obliged to meet that standard. lution because they do not need financial donations and Without legislative reform, the laws and budgets needed to are not running for re-election. Unlike Albany’s traditional protect the environment will continue to be at risk. decision-makers, convention delegates are not like assem- A convention can begin restoring ecological integrity and blymen or senators or the governor, who invariably aim to environmental public health in New York. The degraded aggrandize their powers (“turf”) as they jockey with each state of New York’s environment is the best evidence of other over policies and budgets. Delegates do their work the pressing need to reform the State Constitution. When and the electorate votes upon their proposed Constitution we allow Albany to disregard its environmental duties, directly. are we not in fact assaulting ourselves, our children and The independence of convention delegates also enables future generations? We learned in 1894 that with a strong them to address judicial reform. New York has one of the constitutional guarantee, we could safeguard our “forever most antiquated court systems in America. Without an wild” Forest Preserve. Future generations have carried this effective court system, there is no way for citizens to enforce mission forward. Today we are only two generations away their Constitutional environmental right, or other rights. from when we began our struggle in 1969 to clean up pol- Just as New York’s legislature and governor have dis- lution, and we now see the weakness of our “Conservation counted their environmental responsibilities, they also have Bill of Rights.” Our contaminated environment symbolizes failed repeatedly to address calls for court reforms.68 Only a rot that weakens the framework of New York State gov- a constitutional convention will act on pending bipartisan ernment. Both are tainted and call out for attention. If sav- and professional court reforms.69 ing our environment were the only reason for voting yes on There have been many sensible proposals to restore November 7, it would be sufficient. “good government” in New York.70 To date, “good gov-

NYSBA Journal | October 2017 | 15 16. Zika Virus, Centers for Disease Control and Prevention, https://www.cdc. A convention can restore nobility to governing. There gov/zika/vector/range.html. is merit in trying, for we cannot know if we shall succeed 17. See Brooke Jarvis, When Rising Seas Transform Risk Into Certainty, N.Y. Times until we try. Emulate Teddy Roosevelt’s gumption! We Magazine, April 18, 2017, https://www.nytimes.com/2017/04/18/magazine/ when-rising-seas-transform-risk-into-certainty.html; see also the interactive New need not be resigned to environmental degradation. It is York Times profile What Could Disappear, http://www.nytimes.com/interac- time for New York to reclaim its leadership by recogniz- tive/2012/11/24/opinion/sunday/what-could-disappear.html. ing the human right to the environment. We can again, 18. Nadja Popvich and Adam Pearce, It’s Not Your Imagination. Summers Are with Thoreau, enjoy resigning ourselves to what is good Getting Hotter, N.Y. Times, July 28, 2017, https://www.nytimes.com/interactive/2017/07/28/climate/more-frequent-extreme-summer-heat.html. in the Earth. Should we fail to convene a constitutional 19. Are recent heavy rain events due to climate change? Cornell Climate Change, convention to begin this task, we shall be complicit in Cornell University, http://climatechange.cornell.edu/are-recent-heavy-rain- today’s mugging of our public health and ecological events-due-to-climate-change. integrity. n 20. National Climate Assessment, Northeast (2014), http://nca2014.global- change.gov/report/regions/northeast. 21. Climate Change, Dep’t of Environmental Conservation, www.dec.ny.gov/ energy/44992.html. 1. Henry David Thoreau, Walden, or Life in The Woods (1854); he was born in 1817. 22. See, e.g., Denmark, Sabin Center for Climate Change Law, Columbia Law School, http://columbiaclimatelaw.com/resources/climate-change-laws-of-the- 2. Poisoning of persons and property at Love Canal was discovered in 1977. world-2/climate-change-laws-of-the-world-database/denmark. Lois Marie Gibbs, Love Canal and the Birth of the Environmental Health Move- ment (2011, 3d ed.). Fifty years later, Love Canal is not effectively remediated, 23. UN Environment Programme – Environment for Development, Capacity- still releases toxic chemicals, and spawns new generations of lawsuits for per- 4Dev, https://europa.eu/capacity4dev/unep/document/geo-5-assessment-full- sonal injuries and damages. Carolyn Thompson, Lawsuits: Love Canal still oozes 35 report (2011). years later, USA Today, Nov. 2, 2013, https://www.usatoday.com/story/money/ 24. See Section 202 of the National Environmental Policy Act, 42 U.S.C. § 4321; business/2013/11/02/suits-claim-love-canal-still-oozing-35-years-later/3384259; Annual Environmental Quality Reports, National Environmental Policy Act, Andrew C. Revkin, Love Canal and Its Mixed Legacy, N.Y. Times, Nov. 25, 2013, https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html. www.nytimes.com/2013/11/25/booming/love-canal-and-its-mixed-legacy.html. 25. Internationally, it has long been accepted that government shall provide the 3. Brendan J. Lyons, PFOA Water Pollution in Hoosick Falls, Albany Times public with environmental information and public participation in environmen- Union, Dec. 30, 2016, www.timesunion.com/tuplus-local/article/Top-Stories- tal decision-making. See, e.g., UNEP – Principle 10 and the bali guideline, UN 2016-PFOA-water-pollution-in-Hoosick-10825849.php. Declaration of Rio de Janeiro on Environment and Development (1992), http:// 4. Hoosick Falls Water Contamination, EPA, https://www.epa.gov/ny/ www.unep.org/about/majorgroups/partnership/participation-information. hoosick-falls-water-contamination. 26. Hiroko Tabuchi, What’s At Stake in Trump’s Proposed E.P.A. Cuts, N.Y. Times, 5. EPA added this the area around this factory in Hoosick Falls, N.Y. to the April 10, 2017, https://www.nytimes.com/2017/04/10/climate/trump-epa- Federal Superfund List (July 31, 2017). See EPA Adds Saint-Gobain Performance budget-cuts.html. Plastics Site in Hoosick Falls, N.Y. to the Federal Superfund List, EPA, July 31, 27. Brady Dennis and Juliet Eilperin, Trump Signs Order at EPA to Dismantle 2017, https://www.epa.gov/newsreleases/epa-adds-saint-gobain-performance- Environmental Protections, Wash. Post, March 28, 2017, https://www.washington- plastics-site-hoosick-falls-ny-federal-superfund-list. post.com/national/health-science/trump-signs-order-at-the-epa-to-dismantle- 6. Environmental cleanup sites on Long Island, Newsday (updated to March 31, environmental-protections/2017/03/28/3ec30240-13e2-11e7-ada0-1489b735b3a3_ 2017), http://data.newsday.com/long-island/data/water/superfund. story.html. 7. Allan R. Gold, L.I. Sound Is So Polluted It Faces Long-Term Damage, Scientists 28. These include suits by NYS Attorney General Eric Schneiderman over Say, N.Y. Times, July 8, 1990, www.nytimes.com/1990/07/06/nyregion/li- energy efficiency standards. See Kenneth Lovett, N.Y. Attorney General Eric sound-is-so-polluted-it-faces-long-term-damage-scientists-say.html. Schneiderman sues Trump administration over energy efficiency standards, N.Y. Daily News, April 3, 2017, http://www.nydailynews.com/news/politics/n-y-attorney- 8. For 2008 asthma rates in New York State from the Centers for Disease Con- general-files-energy-policy-lawsuit-trump-article-1.3018177. trol and Prevention, see https://www.cdc.gov/asthma/stateprofiles/asthma_in_ nys.pdf; for 2016 asthma data, see the New York State Health Department data at 29. Brady Dennis, EPA Plans to Buy Out More Than 1,200 Employees This Summer, https://www.health.ny.gov/statistics/environmental/public_health_tracking/ Wash. Post, June 21, 2017, https://www.washingtonpost.com/news/energy- health/asthma.htm; one tenth of New Yorkers suffer from asthma, with emer- environment/wp/2017/06/20/epa-plans-to-buy-out-more-than-1200-employ- gency room visits and hospitalization, lost school days for children, and mortal- ees-by-the-end-of-summer; see also Alex Lubben, Trump’s Biggest Cuts, Vice News, ity. June 1, 2017, https://news.vice.com/story/epa-staffers-are-being-forced-to- retire-or-face-massive-cuts. 9. See South Bronx Environmental and Health and Policy Study (2004) of the Institute for Civil Infrastructure Systems, Robert F. Wagner Graduate School of 30. Progress Reports – Department of Environmental Conservation, NYS Divi- Public Service, New York University, at www.icisnyu.org/south_bronx/Asth- sion of the Budget, https://www.budget.ny.gov/pubs/archive/fy0809archive/ maandAirPollution.html. enacted0809/spendingReductions10-2008/spendRedux_DEC.html. 10. Western New York PRISM, Bloody Red Shrimp, http://www.wnyprism. 31. Environment and Budget, NYS Division of the Budget, https://www. org/invasive_species/bloody-red-shrimp. budget.ny.gov/pubs/archive/fy1213archive/eBudget1213/fy1213littlebook/ Environment.pdf. 11. New York Invasive Species Information, at www.nyis.info/index. php?action=invasive_detail&id=24. 32. Environment and Energy, NYS Division of the Budget, https://www. budget.ny.gov/pubs/archive/fy1415archive/eBudget1415/fy1415littlebook/ 12. Mel White, North American Birds Declining as Threats Mount, Environment.pdf. National Geographic, June 2013, http://news.nationalgeographic.com/ news/2013/06/130621-threats-against-birds-cats-wind-turbines-climate-change- 33. Environmental Funding in New York State, Dec. 2014, https://www.osc. habitat-loss-science-united-states. state.ny.us/reports/environmental/environmental_funding_nys_2014.pdf. 13. Rachael Carson, Silent Spring (1962). 34. 2017 Budget Priority, Water Infrastructure, NYS Association of Counties, www.nysac.org/files/Water%20Infrastructure-%20NYSAC%20Budget%20Prior- 14. National Report on Human Exposure to Environmental Chemicals, Centers ity%20FACT%20SHEET%202017(1).pdf. A 2015 bill had also provided grants for for Disease Control and Prevention, https://www.cdc.gov/exposurereport. water infrastructure improvements. 15. “Winter and summer losses affect beekeeping operations of all sizes. Maxi- 35. Water Infrastructure Act of 2017; see Clean Water Infrastructure Act of 2017, mum winter loss rates reported by individual beekeepers reached 57% for com- NYS Environmental Facilities Corporation, at https://www.efc.ny.gov/Default. mercial operations, 64% for sideliners, and up to 100% for hobbyists,” 2016 Bee aspx?tabid=677#. Keeper Tech Team Report (Cornell and NYS Dep’t of Agriculture) at p. 5 (2016). See also Kimberly Amadeo, Colony Collapse Disorder Impact on the Economy, The Bal- 36. Environment and Energy, NYS Division of the Budget, https://www.bud- ance, April 27, 2017, https://www.thebalance.com/bee-colony-collapse-disorder- get.ny.gov/pubs/executive/eBudget1718/fy1718littlebook/Environment.pdf. facts-and-economic-impact-3305815. 37. See, e.g., Division of Environmental Remediation Annual Report, NYS Dep’t of Environmental Conservation, http://www.dec.ny.gov/about/53234.html. 16 | October 2017 | NYSBA Journal 38. Thomas P. DiNapoli has documented many of the environmental threats to the NYS Constitutional Convention (Chair, Prof. Katrina Kuh), August 2017, New Yorkers. See, e.g., Federal and New York State Regulation of Drinking Water www.nysba.org/Environmental. Contaminants, Office of the NYS Comptroller, June 2017, https://www.osc.state. 59. France’s President Emmanuel Macron has endorsed a principle of resilience ny.us/reports/environmental/drinking-water-contaminants.pdf. in the Global Pact for the Environment, which France is submitting to the UN 39. Article XIV, Section 1. See NYSBA Report, https://www.nysba.org/Arti- General Assembly as a new treaty in 2018. See 23-24 June 2017: Global Pact cleXIVreport. for the Environment Introduced to the World, IUCN, https://www.iucn.org/ commissions/world-commission-environmental-law/events/23-24-june-2017- 40. Article XIV, Section 5. See NYSBA Report, https://www.nysba.org/ global-pact-environment-introduced-world. ArticleXIVreport. 60. Renewables Portfolio Standard, California Energy Commission, www. 41. The first Earth day, History.com, www.history.com/this-day-in-history/ energy.ca.gov/portfolio/. the-first-earth-day. 61. The World Bank finds that Denmark had the most advanced green energy 42. Jerry Jenkins, Karen Roy, Charles Driscoll & Christopher Buerkett, Acid regime of any nation, and its economy prospers. See Denmark is leader in green Rain in the Adirondacks: An Environmental History (Cornell Univ. Press, 2007). energy, declares the World Bank, EFKM, http://efkm.dk/aktuelt/nyheder/ 43. Dina Spector, This Old Picture of Manhattan Smog Looks Just Like Beijing Today, nyheder-2017/februar-2017/denmark-is-leader-in-green-energy-declares-the- Business Insider, Jan. 17, 2013, www.businessinsider.com/manhattan-smog- world-bank/. photos-1966-2013-1. 62. Michael E. Porter and Claas van der Linde, Toward a New Conception of 44. Between 1970 and 1972, the Conservation Law was revised and codified as Environment-Competitiveness Relationship, 9 Journal of Economic Perspectives 97 the Environmental Conservation Law, Volume 17 ½ of Mckinney’s Consolidated (American Econ. Assoc., 1995); and Y. Rubashkina, et al., Environmental Regulation Laws of New York. and Competitiveness: Empirical Evidence on the Porter Hypothesis from European Man- 45. See Nicholas A. Robinson, Ed., New York Environmental Law Handbook ufacturing Sectors, Bocconi Working Paper 69, July 2014, ftp://ftp.unibocconi.it/ (NYSBA 1988), §1.1, “The Rapid Development of Environmental Law,” pp. 1–4. pub/RePEc/bcu/papers/iefewp69.pdf. 46. Governor Mario Cuomo financed DEC ably, while balancing the budget. See 63. See, e.g., Brian Mann, Would a state constitutional convention threaten NY’s Governor Cuomo’s Budget Director’s commentaries in Dall W. Forsythe (Preface “forever wild” land?, North Country Public Radio, https://www.northcountry- by Mario Cuomo), Memos to the Governor: An Introduction to State Budgeting publicradio.org/news/story/34255/20170706/would-a-state-constitutional- (Georgetown Univ. Press., 2d ed., 2004). Through his budgets and bond acts, convention-threaten-ny-s-forever-wild-land. former Gov. Cuomo supported DEC at levels not sustained by his successors. For 64. Citizens Union reports that since 2000, 33 legislators left office due to crimi- example, when I left DEC as its General Counsel in 1985, the DEC Division of nal or ethic issues. See Corruption Tracker, Citizens Union, www.citizensunion. Environmental Enforcement had a well-deserved reputation for securing compli- org/albany_corruption_tracker. ance with the law; that division no longer exists. DEC enforcement statistics are 65. Jerry Kramer, Patronage, Waste & Favoritism: A Dark History of Consti- below those of the 1980s although the Clean Air Act Amendments of 1990 and tutional Conventions (2015, with Anthony M. Figliola and Maria Donovan) other laws necessitate increased enforcement activities. (recalled that, at the 1915 Constitutional Convention, when timber interests 47. Governor Andrew Cuomo is applauded for halting hydraulic fracturing in sought to cut back the1894 Constitution’s “Forever Wild” Forest Preserve’s New York but criticized for efforts to divert $500 million from the state’s Revolv- restrictions, the civil liberties lawyer Louis Marshall, a delegate, “took the floor ing Loan Fund for Water Quality Infrastructure (a program established by Gov. and read out loud the name of every single delegate who had accepted money Mario Cuomo) for financing the Tappan Zee Bridge reconstruction. Peter Iwano- from the timber industry, as a way to get them to vote in favor of retaining wicz, the head of Environmental Advocates has observed: “[The loan attempt] “Forever Wild” protections, that way ensuring that the 1915 convention would really strikes me as a clear indication of the ideology of this administration, hav- continue with the state’s strong environmental protections.”). ing other priorities than a strong environment.” He added that he sees a “lack 66. The 1890s were times of crises. Environmental destruction was rampant as of deep commitment that existed in previous administrations to ensure strong timber barons clear-cut the forests, leaving eroded hills and floods each spring environmental protections.” See Sarah Crean, The Cuomo Record: Environment, that inundated the shores in Albany. Corruption in the legislature was blatant Gotham Gazette, Oct. 24, 2014, www.gothamgazette.com/government/5397- and had infected the Forest Commission as well. Extreme forest fires, erosion, cuomo-record-environment-first-term-governor-fracking. flooding and loss of flora and fauna accompanied the extensive, and often 48. David R. Boyd, The Environmental Rights Revolution (2011). unlawful, logging operations in the Catskills and Adirondacks. Frank Graham, 49. Pennsylvania Environmental Defense Foundation v. Commonwealth, 10 MAP Jr., in The Adirondack Park (1978), describes the public debates and legislative 2015 (June 20, 2017). See also Robinson Township v. Commonwealth, 63 MAP 2012 lobbying of the time that precluded legislative reforms: economic trade-offs (December 24, 2013). between advocates of scientific forestry as opposed to unbridled timber exploita- tion; distress about unlawful corruption by lumbermen; concerns to preserve 50. For example, Albany has failed to implement the existing constitutional watersheds to ensure water supplies for many uses especially the flow for the mandate to provide for implementation of a “Natural and Historic Preserve” and Erie Canal; nature conservation demands that were encouraged by publication has resisted citizen enforcement of the “Conservation Bill of Rights.” See William of Man and Nature: or Physical Geography as Modified by Human Action (1864) R. Ginsberg, “The Environment,” Chapter 15 in Gerald Benjamin, Ed., The New by George Perkins Marsh; vocal calls to preserve resources for fish and game, York State Constitution – A Briefing Book, pp. 221–29 (Nelson A. Rockefeller other recreation, health and for spiritual values. The 1894 convention cut through Institute for Government, 1994). these debates by adopting the “Forever Wild” provision now in Article XIV Sec- 51. Air and water depend on broader ecological conditions, over successive tion 1. generations. Pennsylvania’s right, or rights like Hawaii’s that embrace beauty, are 67. For instance, at the constitutional convention in 1915, amendments to more effective. Article VII, Section 7, were proposed and adopted, but the voters defeated this 52. A. 6279 (Assemblyman Englebright, at http://effectiveny.org/2017/04/26/ proposed Constitution by vote of 893,635 to 388,966, so the 1894 Constitution’s from-politico-assembly-passes-environmental-bill-of-rights). language remained in force. 53. S. 5287 (Senator David Carlucci, at https://www.nysenate.gov/legislation/ 68. See the proposals of the Fund for Modern Courts, at http://moderncourts. bills/2017/S5287). org. 54. Charters & Constitutions, Historical Society of the New York Courts, 69. NYSBA Report on the Judiciary Article of the State Constitution, Jan. 27, www.nycourts.gov/history/legal-history-new-york/history-new-york-courts- 2017, https://www.nysba.org/judiciaryreport2017. constitutions.html. 70. League of Woman Voters, www.lwvny.org/programs-studies/con- 55. Magna Carta, Chapter 33 in 1216, Chapter 36 in 1217. con/2017/Press-Con-con_032717.pdf; Citizens Union, www.citizensunion.org/ vote_yes_for_a_new_york_state_constitutional_convention. 56. Chapter 17 of the Forest Charter (1217) granted the “liberties of the forest to everyone” and declared everyone had a “duty to observe the liberties.” The 71. Can a NYS Constitutional Convention Strengthen Government Ethics?, Crown was bound to secure environmental right. See Nicholas A. Robinson, “The Albany Law School Institute of Legal Studies, March 25, 2016, at https://www. Charter of the Forest: Evolving Human Rights in Nature,” Magraw, et al., eds, albanylaw.edu/centers/government-law-center/publications/Documents/ Magna Carta and the Rule of Law (ABA 2014). Final%20materials%20Constitutional%20Convention.pdf. 57. NYSBA Report on the “Conservation Article in the State Constitution,” at p. 30 (August 3, 2016, adopted by House of Delegates November 5, 2016), www. nysba.org/ArticleXIVreport. 58. NYSBA Section on Environmental and Energy Law Section TaskForce on

NYSBA Journal | October 2017 | 17 “It Is a Constitution We Are Writing”: A Concise, Clear and Coherent Constitution for New York By Peter J. Galie and Christopher Bopst

Introduction The first decade of the 21st century witnessed a meticu- Notwithstanding the intertwined history and com- lous cleaning and restoration of the New York State Capi- mon goals of the federal and state constitutions, the treat- tol. New Yorkers can now take pride in their beautifully ment given the U.S. Constitution and the New York State restored Capitol building. Unfortunately, they cannot Constitution have been quite different. We point to the take the same pride in their State Constitution, adopted national Constitution with pride and admiration. Read, in 1894, five years before the opening of the Capitol. The studied, and celebrated, it is the closest thing to a sacred oddities, anachronisms, redundancies, archaic words and text that is allowed in a secular republic. The Rotunda phrases, and incoherencies found in the state’s funda- of the National Archives Building in Washington, D.C. mental charter constitute the stuff that has cluttered and is its shrine. Preserved in a massive, bronze-framed, expanded the document, making it barely readable, let bulletproof, moisture-controlled, vacuum-sealed glass alone understandable. container, the Constitution sits in the Rotunda by day Our State Constitution is a concatenation of legal and is lowered into a multi-ton, bombproof vault by texts, some fundamental and appropriate for a constitu- night. Printed versions of the text are readily available in tion, others a maze of obsolete or meaningless statutory pocket form, and we have designated a day to celebrate detail.1 The current document is a bloated, disorganized, the document. 52,500-word behemoth2 characterized by detritus and Contrast this with our treatment of the New York State disorder. New York’s Constitution, like the building in Constitution. The document is not honored or celebrated, which it is debated and amended, is in need of some good and is wholly unknown to many New Yorkers. To our housekeeping.3 great embarrassment, hundreds of government officials

18 | October 2017 | NYSBA Journal have admitted, subsequent to their swearing to uphold “Forever Wild” provision that protects the Adirondack the Constitution, that they had never read it! Those who forest preserve from commercial or industrial develop- have are aware of its incomprehensible prose and quaint ment;8 a “bill of rights for labor;”9 a provision requiring provisions. Nearly 60 years ago the Inter-Law School the state to care for the needy;10 and an article facilitating Report on the Problems of Simplification of the New York State the state’s role in providing low-income housing.11 New Constitution wrote that it was “literally amazed by the Yorkers are justifiably proud of these provisions – all of extent to which the Constitution of New York contains which we hasten to add were the work of constitutional hollow phrases, defective provisions, and creakingly conventions, not legislatively proposed amendments. antiquated policies.”4 The Temporary Commission on the Revision and Simplification of the Constitution echoed Cleaning House these sentiments, calling the State Constitution “almost The provisions under consideration will be analyzed unreadable” and “not a constitution in a proper constitu- under the following categories: tional sense. It is a mass of legal texts, some truly funda- • Obsolete or transitional mental and appropriate to a constitution, others a maze • Superseded or unconstitutional of statutory detail, and many obsolete or meaningless in • Misplaced present times.”5 Since then, the document has only gotten • Superfluous longer and more unwieldy! • Statutory This article focuses on provisions of the New York State Constitution that are obsolete, unnecessary, out A. Obsolete/Transitional of place, have been superseded by subsequent amend- The current New York State Constitution was adopted in ments, or conflict with the U.S. Constitution. It lays bare 1894 and revised by subsequent legislative amendments an unkempt constitution encrusted by dozens of such and the constitutional convention of 1938. Many of the items best described as constitutional detritus that have Constitution’s provisions, however, are carry-overs from undermined its initial coherence. By trivializing its con- the state’s three earlier Constitutions.12 Adopted when tent, these provisions have done more than discourage the positive role of government was still constitutionally reading: they have derogated from the Constitution’s suspect, these sections are museum pieces. Other provi- character as a fundamental document, engendering dis- sions serving no current purpose are those that are tran- respect, if not ridicule. sitional in nature, meant to effect a transfer from earlier Our purpose is not to rewrite the Constitution – that structures and processes, such as how pending cases are is a task best suited for a constitutional convention; we to be handled under a new Judiciary Article. Examples of will, however, suggest changes that would rescue the obsolete or transitional provisions include: State Constitution from the neglect and embarrassment 1. article I, section 7 provides that private property occasioned by these features. shall not be taken for public use without just compensation. The section also includes subsections The Crown Jewels: A Necessary Caveat allowing the opening of private roads and declaring Lest the reader think that we believe the State Constitu- that the drainage of swamp or agricultural lands is a tion, in toto, unworthy of a founding document, we begin public use. Remnants of an age where judicial inter- our analysis by acknowledging its brightest stars – provi- pretations of public use were less deferential, these sions that reflect the best of our constitutional heritage. subsections were deemed outdated 60 years ago by These include, among others, a Bill of Rights6 that has the Inter-Law School Committee appointed to study provided greater protection of individual liberties than the Constitution.13 is afforded by the national document.7 It contains the

Peter J. Galie is the Professor Emeritus Canisius College in Buffalo and earned his Ph.D. from the University of Pittsburgh. He is the author of numerous articles in the area of state constitutional law and three books: Ordered Liberty: A Constitutional History of New York (Fordham University Press, 1996); The New York Constitution: A Commentary, with Christopher Bopst, 2d ed. (Oxford University Press, 2012); and co-editor with Christopher Bopst and Gerald Benjamin, New York's Broken Constitution: The Crisis in State Government and the Path To Renewed Greatness (SUNY Press, 2016). Other publications include “The New York Constitution and the Federal System,” in the Oxford Handbook on New York State Government (Oxford University Press, 2012) and numerous articles on state constitutional law. He is currently serving on a Task Force on the Judiciary Article of the State Constitution formed by N.Y. Court of Appeals Chief Judge Janet DiFiore.

Christopher Bopst is the Chief Legal and Financial Officer at Sam-Son Logistics in Buffalo, New York. Before that, he was a constitutional litigation partner at law firms in New York and Florida. He is the co-author with Professor Peter Galie of the leading reference work on New York’s State Constitution, The New York Constitution (2012), as well as numerous articles on the state Constitution. He is also a contributor to and co-editor (with Professor Galie and Professor Gerald Benjamin) of a volume of essays entitled New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (2016). He is a member of the Judicial Task Force on the New York Constitution formed to advise the Chief Judge and the New York court system on issues related to the upcoming convention vote.

NYSBA Journal | October 2017 | 19 2. article I, section 9(1) includes among fundamental ate debt to eliminate railroad crossings at grade. rights to assembly and petition a provision requir- When the section was adopted in 1925, it was neces- ing that divorces be granted only by judicial pro- sary in order to avoid the requirement that all gen- ceedings. Inserted in 1846 when legislative divorces eral obligation debt be submitted to the voters for were a possibility, the provision seems entirely out approval under certain conditions.18 These bonds of place in a state having no-fault judicial divorces. were satisfied during the 1987-88 fiscal year. Sec- 3. article I, section 18 permits the legislature to enact a tion 18 permits the state to borrow money to pay “no fault” workers’ compensation system, in which a bonus to veterans of World War II.19 This section employees are compensated for workplace injuries remains notwithstanding that the bonds authorizing regardless of fault. Adopted in 1911 in response to a the bonuses were retired in 1958! Section 19 allows decision of the N.Y. Court of Appeals invalidating a the legislature to issue debt to provide funds for the no-fault compensation system on state due process construction and renovation of the state university grounds,14 nobody today would dispute that a no- system. These bonds were retired in 2007. The reten- fault system is permissible even absent this section. tion of these three sections gives no indication of the The Inter-Law School Committee recommended current financial picture of the state and adds noth- removal of this section.15 ing to the State Constitution other than confusion 4. article IV, section 5 provides that the lieutenant- and additional verbiage. governor shall act as governor when the governor 8. the Local Finance Article limits the amount of debt “is absent from the state.” Dating back to New that local governments may incur.20 Over the years York’s first Constitution of 1777, this provision was numerous exceptions have been added to the Con- necessary when travel outside the state meant com- stitution to exempt from these limits debt incurred munications delays of days or weeks. The Tempo- for certain types of projects, and these exceptions rary Commission on the Revision and Simplification often remain in the Constitution long after they of the Constitution called for removal of this provi- have been exhausted. Section 6 excludes the sum of sion in 1961,16 and the proliferation of sophisticated $10 million from the debt limitations of Buffalo and communications devices in the intervening decades Rochester and excludes $5 million from Syracuse’s have magnified the anachronism. debt limit. Added in 1927, these exemptions are long 5. article V, sections 2–3 concern executive depart- exhausted. Section 7 affords New York City several ments in the state government. Section 2 sets a “one time only” exceptions to the city’s debt limit bright-line rule of no more than 20 civil depart- for specific purposes – dock purposes, construc- ments. That rule is then undermined in section 3, tion of new rapid transit railroads, construction of which permits the legislature to create scores of hospitals, and rapid transit construction and recon- other entities, so long as they are not called “depart- struction – all of which have been long exhausted. ments.” The legislature has utilized this loophole Another exception to New York City’s debt limit, by creating an “executive department” in which it found in section 7-a, excluded debt for “the acquisi- lodges more than 100 boards, agencies, commis- tion of railroads and facilities or properties used in sions, and committees. The limitation in section 2 is connection therewith or rights therein or securities rendered useless by section 3, and the elimination of corporations owning such railroads, facilities or of section 2 would make section 3 superfluous as rights.”21 This one-time exclusion has long been uti- the legislature has discretion to create departments lized. without specific constitutional authorization. 9. article VIII, section 8 is a “savings clause,” inserted 6. article VI, sections 34, 35, 36, 36-a, 36-c and 37 are to ensure that debts issued before the enactment of all “take effect” provisions. Inserted into the Consti- the Local Finance Article would not be invalidated. tution when the new Judiciary Article was adopted Perhaps necessary at the time the article was adopt- in November 1961, these sections concern ques- ed, the validity of these debts are not in question. tions such as the status of cases pending in courts 10. the State Constitution prohibits the state and its that were being abolished when the new article municipalities from giving or loaning credit to any took effect and the status of judges serving in these other person or entity, including public authori- courts. Any cases pending in 1961 have either been ties.22 Specific exceptions to this prohibition exist, resolved or their jurisdiction in the new court has and amendments allowing the state to guarantee been settled, and any judges serving at that time debt of a public authority often remain in the docu- would be long retired. There is no need to retain any ment long after the debt is retired. Article X, sec- of these sections. tion 6 allows the legislature to make the state liable 7. Several provisions of the State Finance Article17 for bonds issued by the New York State Thruway authorize the issuance of bonds that have long been Authority. The maturity dates for these bonds retired. Section 14 authorizes the legislature to cre- ranged from 1985 to 1995. Article X, section 7 autho-

20 | October 2017 | NYSBA Journal rizes the state to guarantee bonds issued by the Port 2. article I, section 8 contains New York’s protection of New York Authority for the purchase of railroads for freedom of speech. It has not, however, kept up and other assets. The section expired no later than with federal jurisprudence in this area. It provides January 1, 1997. Obsolete for decades, both these that truth is a defense in criminal proceedings, but it sections should be removed. fails to state that truth is also a defense in civil libel 11. article XIII, section 14 allows the legislature to regu- cases, which has been the case for decades.26 More- late and fix pay and hours of work for state or local over, it only protects truth “published with good government employees and contractors performing motives and for justifiable ends,” a limitation no work for governmental entities. The section was longer passing constitutional muster.27 added in 1905 in response to a decision of the Court 3. article III, sections 3–5 detail the apportionment of Appeals striking down prevailing wage legisla- schemes for members of the state Senate and tion.23 There has been no serious dispute about the Assembly. These schemes were designed to favor government’s power to regulate wages and hours the interests of sparsely populated rural areas at the for more than 75 years. expense of more densely populated urban areas. 12. article XIV, section 1, the “Forever Wild” provi- The Senate apportionment utilizes a “ratio” system sion keeping the Adirondack and Catskill preserves having the county as the basic unit; this system as wild forest lands, is the longest section in the provides different ratios for more populous coun- Constitution. It contains 19 amendments allowing, ties than for less populous ones, affording compara- inter alia, ski slopes, roads, power lines, and vari- tively less representation for the populous counties. ous land exchanges. The section could be dramati- The Assembly apportionment requires all but one cally shortened and remain effective by stating that county to receive an Assembly seat regardless of the lands shall be kept forever wild “as heretofore population, resulting in a significant imbalance: guaranteed” – freezing in the Constitution all the counties having a majority of the state’s population exceptions and exchanges spelled out in the current elect a minority of the state Assembly members. A document while permitting them to be omitted. 1964 U.S. Supreme Court decision held that both these schemes violated the Equal Protection Clause requirement that seats in a state legislature must be We estimate that removing apportioned substantially on a population basis.28 this obsolete, unnecessary, That decision was the catalyst behind the 1967 constitutional convention. The work of that convention and unconstitutional material was rejected by voters, and no amendment to rem- would reduce the size of the edy the unconstitutional nature of these sections has Constitution by about 25 percent. been passed. A 2014 amendment established a redis- tricting commission to draw Assembly and Senate lines, but did not eliminate any material previously B. Superseded/Unconstitutional deemed unconstitutional. A number of provisions of the State Constitution have 4. article III, section 17, originally inserted in the 1846 been held to violate the U.S. Constitution. Yet rather than Constitution, lists 14 areas in which the legislature is amend the state charter to bring it into conformity with prohibited from passing a private or local bill. The the U.S. Supreme Court’s interpretation of the national list, which includes items such as locating county Constitution (or perhaps even expand the rights afforded seats, incorporating villages, and providing for the by the State Constitution), these provisions sit inop- election of members of boards of supervisors, is an erative. Still other sections of the State Constitution have early attempt at “home rule,” the notion that the been superseded by later amendments to the document. state legislature should refrain from intruding upon Examples of provisions falling into this category include: matters of local, rather than state, concern. The 1. article I, section 6 contains a provision requiring adoption of a Home Rule Article in 196329 contain- that a public official who refuses to waive his or ing detailed requirements as to when the legislature her privilege against self-incrimination involving may act by special law “in relation to the property, the performance of official duties be terminated affairs or government of any local government” from employment. This provision was held uncon- supersedes many of the items in this section. stitutional by the U.S. Supreme Court nearly half a century ago24 as violating the official’s Fifth Amend- C. Misplaced ment right against self-incrimination. The question- Several provisions of the State Constitution do not appear ing allowed by the state’s clause is also considerably to belong in the place where they are located. Examples of broader than that permitted by the Supreme Court’s misplaced provisions include: decision.25

NYSBA Journal | October 2017 | 21 1. the first section of the Constitution, Article I, sec- 2. article III, section 8 provides that elections for leg- tion 1, opens with the most famous and lofty clause islators shall be held on the Tuesday after the first in the Magna Carta: “No member of this state shall Monday in November, “unless otherwise directed be disfranchised, or deprived of any of the rights by the legislature.” By detailing a particular action or privileges secured to any citizen thereof, unless and then giving the legislature discretion to adopt a by the law of the land, or the judgment of his or contrary requirement, the provision is purely advi- her peers.” This statement is followed by a clause sory – and wholly unnecessary. authorizing, but not requiring, the legislature to dis- 3. article VI, section 4(a) creates the state’s four judi- pense with uncontested primaries. The juxtaposition cial departments, and establishes which judicial dis- of these two clauses is jarring and diminishes the tricts are contained in each department. Section 6(a) significance and rhetorical power of the former. We of the article specifies which counties are located in recommend the latter be placed in Article II, the Suf- each judicial district. The article gives the legisla- frage Article. ture discretion to modify both the boundaries of the 2. article I, section 9, the section containing the rights appellate departments and the composition of the to assembly and petition (and the abovemen- judicial districts. As the state has added two judicial tioned prohibition against legislative divorces) also districts since the adoption of these two sections, the includes a prohibition against gambling. This pro- needless specificity has led to incompleteness and hibition is immediately followed by more than 500 inaccuracy. words of detailed, prolix, and statute-like exceptions 4. article X, section 1, concerning the formation of to that prohibition. Leaving aside the question of corporations, is purely advisory. It first states that whether a gambling prohibition (especially one with corporations may be formed by general law, which so many exceptions) has claim to a continuing place would be true even without this grant of power. in the document, it clearly does not belong in the The section then bans the practice of creating cor- same article and section as fundamental rights. It porations by special act, except for municipal pur- should be repositioned. poses and “in cases where, in the judgment of the legislature, the objects of the corporation cannot be D. Superfluous attained under general laws.” In other words, the Unlike the federal government, which is a government of legislature cannot form a corporation by special law enumerated powers, state governments are governments unless it wishes to do so! of plenary powers. State governments are permitted to 5. article X, section 2 provides that the legislature may take any action so long as it is not forbidden either by make the “corporators” (shareholders) of a corpora- federal law (e.g., by the U.S. Constitution or by federal tion liable for the corporation’s debts. Since corpora- statute) or by its own State Constitution. Consequently, it tions are creatures of statute, it stands to reason that is unnecessary for a State Constitution to enumerate the the legislature could determine, even absent this powers of the state legislature. The New York Constitu- section, which debts may fall upon the shareholders. tion contains numerous “superfluous” provisions – pro- 6. article XVII imposes governmental oversight visions that purport to authorize the state to act when responsibilities for institutions engaged in social such authorization is not needed, provisions that give welfare functions, such as mental hospitals, pris- the legislature discretionary power but do not mandate ons and childrens’ homes. Section 2 of the article anything, and provisions that lay down a rule or provi- requires the state board of social welfare to inspect sion and then grant the legislature the power to ignore all public and private charitable institutions that that rule. Examples of provisions falling into this category receive public funds as well as any institution exer- include: cising custody over dependent, neglected or delin- 1. article III, section 6 provides that members of the quent children, regardless of whether it receives legislature shall receive a salary to be fixed by law. public funds. Section 4 provides that the care and This provision is wholly unnecessary, as the leg- treatment of individuals suffering from mental ill- islature has the power to fix its members’ salaries ness may (but not must) be provided by the legisla- absent the directive. The section further details such ture and imposes inspection requirements upon the unnecessary information as when members can head of the department of mental hygiene for insti- receive per diem expenses and allowances for serv- tutions providing mental illness care. Correctional ing in additional capacities. Although we advocate facilities are dealt with in section 5, which permits removal of the needless material, we do not advo- the legislature to provide for these institutions and cate eliminating the section’s protections against mandates that the state commission of correction arbitrary manipulations of compensation and inspect these institutions. Section 6 provides a sav- “allowances” (i.e., lulus) during a term. ings clause to make sure the dictates of the article do not invalidate any other visits or inspections.

22 | October 2017 | NYSBA Journal These sections suffer from identical infirmities: legislature provide reasonable preferences for vet- they authorize what could be established in their erans would serve the requisite purpose with fewer absence; grant powers to the state that nobody chal- words and the need for fewer amendments. lenges; and allocate tasks and procedures to agen- 4. article VI, section 19 deals with transfers of actions cies the legislature may subsequently believe can be and proceedings in the court system. It is about eliminated or consolidated – a trifecta of inefficiency, twice as long as Article III of the U.S. Constitu- redundancy, and unnecessary legislative detail. tion. Section 26 of the article addresses temporary 7. article XVIII, sections 8 and 9 concern the acquisi- assignments of judges. Both these sections provide tion of land by the state and municipalities in order unlimited permutations of case transfers and judi- to promote low-income housing and slum clearance. cial assignments, and are written more suitably for Section 8 grants these entities the power of excess an administrative code than a constitution. These condemnation, i.e., the power to take property in sections could be rewritten to reduce their length excess of that required for immediate public use, significantly and to make them more readable. and section 9 affords them the authority to pur- 5. article X, section 4 defines the term “corporations” chase, condemn or otherwise acquire property that and provides that “all corporations shall have the they may deem “ultimately necessary or proper,” right to sue and shall be subject to be sued in all even if “temporarily not required.” Since nobody courts in like cases as natural persons.” This mate- seriously questions the authority of municipalities rial is statutory in nature and is adequately covered to take these actions, these sections are superfluous. in the state’s corporate laws. 8. article XVIII, section 10 provides the legislature the 6. article XVII, section 6 limits low-income housing power to “make all laws which it shall deem neces- to “persons of low income as defined by law” and sary and proper for carrying into execution” the gives preference to persons who live or shall have powers afforded by the Housing Article. As a gov- lived in such area or areas.” Ambiguous and legis- ernment of plenary powers, a “necessary and proper lative in nature,30 the section is unnecessary as the clause” comparable to the one found in the U.S. notion that the legislature would create low-income Constitution is unnecessary. housing and not provide some threshold defies the very purpose of low-income housing. The section E. Statutory has proved little value in halting the replacement of Because state constitutions are more policy-laden than low-income housing with market rate units.31 the U.S. Constitution, it is not unusual for them to contain material that is statutory in nature. These provi- Conclusion sions, once inserted, often grow in size due to necessary We estimate that removing this obsolete, unnecessary, amendments to keep them current and to reflect changing and unconstitutional material would reduce the size of policies within the state. Statutory provisions in the State the Constitution by about 25 percent. Moreover, the lack Constitution include: of coherent organization that characterizes much of the 1. article II, section 3 specifies in significant detail who document should be addressed by relocating provisions is constitutionally excluded from voting in the state. improperly placed in the rights article and by inserting Adopted during the 19th century to deal with elec- in that article those rights provisions that are scattered tion chicanery, fraud, and wagering on the outcomes throughout the document. These are tasks much better of elections, the language reads like an election code suited for a constitutional convention than for the legis- – and is more properly placed there. lature. Legislatures lack the time, focus and institutional 2. article III, section 24 constitutionalizes the state’s knowledge of constitutional revision to provide mean- policy for employment of prisoners, meticulously ingful reform. Previous conventions in 1915 and 1967, detailing the definition of non-profit organizations though ultimately unsuccessful, proposed streamlining that may reap the benefit of such labor. This section and modernization of the Constitution that had not been evidences the danger with putting such statutory forthcoming from the legislative branch. provisions in the Constitution – the section has In addition to simplifying and consolidating, a con- grown considerably since its initial insertion in 1894, vention could address substantive problems that have with the most recent addition being in 2009. been put off or ignored for the past half century, problems 3. article V, section 6 provides a preference for mili- that have left the state with, among others: tary veterans in civil service matters. A worthwhile • a judiciary that wastes millions of dollars annually goal when added in 1949, the section is filled with in inefficiencies while failing, in too many cases, to statutory language. The detailed nature of the sec- deliver prompt justice to litigants; tion preordained the need for future amendments: • an electoral system that ranks among the lowest in six have been adopted in the intervening years, four the nation in participation; since 1997. A simple statement mandating that the • a legislature caught up in a pay-to-play culture,

NYSBA Journal | October 2017 | 23 2. Even with computers, estimates of the word count for the New York State unwilling or unable to address reforms that will Constitution vary wildly. We do not include in our count the title page, the unshackle it, restore the trust of citizens, and enable table of contents, section titles that are not included in the document itself, it to take its rightful place in the governing process; bracketed material such as summaries of certain provisions, and each provision’s amendment history. We do include, however, the two-word title “The • a home rule system that fails to deliver meaningful Constitution,” article headings, and section outlining characters (i.e., letters local control to municipalities while saddling them and numbers at the start of each provision). Using these conventions, the with debt and tax restrictions and unfunded man- document totals 52,526 words. dates; 3. This article draws on our more extensive treatment of this topic in Chap- ters 1 and 2 of New York’s Broken Constitution: The Governance Crisis and • a budget process that raises questions about trans- the Path to Renewed Greatness (Peter J. Galie, Christopher Bopst & Gerald parency and the proper balance of legislative-execu- Benjamin, eds., 2016). tive roles in that process; 4. State of New York, Special Legislative Committee on the Revision and • debt provisions that have failed to limit state and Simplification of the Constitution, Inter-Law School Committee Report on the Problems of Simplification of the Constitution (N.Y. Leg. Doc. No. 57, 1958), local debt or ensure fiscal responsibility; 221. • an education funding system best described as a 5. State of New York, Temporary Commission on the Revision and Simpli- “political football;” and fication of the Constitution, First Steps Toward a Modern Constitution (N.Y. • no constitutional right to clean air or clean water. Leg. Doc. No. 58, 1959), 2. The needs are pressing; the task is daunting. But we 6. N.Y. Const., art. I. believe a constitutional convention is the best, nay the 7. Scott N. Fein & Andrew B. Ayers, eds., Protections in the New York State only, realistic option to provide the extensive recon- Constitution Beyond the Federal Bill of Rights, April 17, 2017, https://www. albanylaw.edu/centers/government-law-center/publications/Documents/ struction required to give 21st century New York the Protections-in-the-New%20-York-State-Constitution.pdf. n Constitution it deserves. 8. N.Y. Const., art. XIV, sec. 1. 9. N.Y. Const., art. I, sec. 17. 1. This is hardly a new observation. A New York Times editorial written near- 10. N.Y. Const., art. XVII, sec. 1. ly 60 years ago stated that the Constitution was characterized by “haphazard arrangement, slipshod and confusing phraseology, relics of long-gone fears, 11. N.Y. Const., art. XVIII. verbosity, frustrated efforts to fit law to new circumstances, a testimonial to 12. The other three constitutions were adopted in 1777, 1821, and 1846. the force of inertia.” Editorial, A Simpler Constitution, N.Y. Times, June 2, 1958, p. 26. 13. Inter-Law School Committee, supra note 4, at 16 n.3. 14. Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911). 15. Inter-Law School Committee, supra note 4, at 57–58. 16. State of New York, Temporary Commission on the Revision and Simpli- fication of the Constitution, Simplifying a Complex Constitution (N.Y. Leg. Doc. No. 14, 1961), 41. 17. N.Y. Const., art. VII. 18. N.Y. Const., art. VII, sec. 11. 19. The court of appeals had invalidated a law providing for the issuance of bonds by the state with the proceeds to be paid as bonuses to veterans of World War I, holding it was an unconstitutional loan of state credit. People v. Westchester County National Bank, 231 N.Y. 465 (1921). This section prevented a similar result. 20. N.Y. Const., art. VIII, sec. 4.  COURT &LITIGATION 370 Lexington Ave. 21. N.Y. Const., art. VIII, sec. 7-a(A). Suite 1101  BANKRUPTCY &DEPOSITORY New York, NY 10017 22. N.Y. Const., art. VII, sec. 8; N.Y. Const., art. VIII, sec. 1. 23. People ex rel. Rodgers v. Coler, 166 N.Y. 1 (1901).  TRUSTS &ESTATES 212-986-7470 24. Gardner v. Broderick, 392 U.S. 273 (1968). 212-697-6091 Fax 25. The section allows the official’s employment to be terminated for the  INDEMNITY &MISCELLANEOUS refusal to “answer any relevant question concerning such matters before such grand jury.” The Gardner Court held that an officer could be dismissed for the  LICENSE &PERMITS [email protected] refusal to answer “questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immu- nity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself.” Id. at 278. 26. Guccione v. Hustler Magazine, 800 F.2d 298, 301 (2d Cir. 1986). 27. See, e.g., James v. DeGrandis, 138 F. Supp. 2d 402, 416 (W.D.N.Y. 2001) (holding that truth is an absolute defense regardless of malice or evil motives). SURETY BOND SPECIALISTS 28. WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). www.LevineCompany.com 29. N.Y. Const., art. IX. 30. The preference confused the 1967 Temporary State Commission on the Constitutional Convention. State of New York, Temporary State Commission on the Constitutional Convention, Housing, Labor, Natural Resources (1967), 42. 31. Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511 (2009). 24 | October 2017 | NYSBA Journal Home Rule: Elusive or Illusion? By Gerald Benjamin

hy does the state government in Albany get to with the sovereign authority, these local governments decide: Who runs the New York City schools? were “creatures of the state” established at its initiative WHow much sales tax St. Lawrence County can under its authority, through processes it established, with collect? The size of cups of soda for sale in Times Square? functions it specified, to serve its purposes. Whether you can call Uber in Syracuse? Whether your New Amsterdam was chartered by the Dutch in 1653, groceries may be packed in a plastic bag at the supermar- and re-chartered by the British as New York City on June ket in Queens? 12, 1665 and Albany on July 22, 1686. Charter inviolabil- These are clearly local matters. Shouldn’t local govern- ity was a principle of British law; corporations holding ments be deciding them? charters were sheltered from sovereign intervention. This is the “home rule” issue. It has been an intrac- Municipal corporate status thus gave New York City an table one for much of New York’s history. Over more unusual combination of public and private powers. Post- than 400 years, law and politics interacted as the colony/ revolutionary local politics were animated by demands state was settled, grew, and became more diverse; New upon the state legislature for democratization of city York’s economy and governmental systems developed, government.2 The selection of local officials by election transformed and re-transformed; democracy advanced; came into general use, and fed demands for greater local and alternative ideas of governance best practices fully autonomy. By the middle of the 19th century the vestiges or partially displaced each other. Across eras, finding the of New York City’s legal autonomy were gone. And all proper balance in this dynamic environment between other cities were chartered by the legislature by statute, state and local government and among localities has under terms that it specified and, at the time, only it could been persistently elusive. This article summarizes the change. origin, evolution, and effect of some of the most impor- Villages were also initially chartered by special law in tant dimensions of this relationship and what experience response to local request, to meet local service and gover- suggests may be fruitful potential focal points for con- nance needs beyond the scope towns’ powers. Legislative stitutional reform to make home rule in New York State control of cities and villages was directly specified in the something more than an illusion. 1846 State Constitution. Legal distinctions among types of local governments were substantially removed finally Local Governments as “Creatures of the State” in 1892, when the first general municipal law specified Colonial and then state governments, established by that “the term municipal corporation, as used in this sovereign authority, created the early local government chapter, includes only county, town, city and village.”3 system in New York. The Shire and riding system, first used by the British, was abandoned in 1683, and counties The Incremental Development of Constitutional were systematically established, along with towns within “Home Rule” in New York them. Towns and counties, when established, were not Republican use of the state’s power to control and exploit regarded in law as municipal corporations; they had New York City in following decades fueled the city home “governmental or public powers” but not “corporate or rule movement. The “home rule” idea now applies to all proprietary powers.”1 Possessing no direct relationship general purpose local governments (see below), but politically it emerged and was sustained as a central aspect Gerald Benjamin is Distinguished Professor of Political Science and of the conflict between New York City-based Democrats Director of the Benjamin Center for Public Policy Initiatives at SUNY New and Albany-based Republicans for control of the city’s Paltz. His most recent book is an edited volume (with Peter Galie and wealth and patronage. Thus ironically, the same local Christopher Bopst) titled New York’s Broken Constitution (SUNY Press). democratic impulse that led the city to become subject to state’s authority, as were other local forms of govern-

NYSBA Journal | October 2017 | 25 ment, became a basis for claiming greater autonomy from cretion.8 Power was explicitly reserved to the legislature, the state. however, “to enact laws relating to matters other than the By the time the term “home rule” was first used property, affairs or government of cities.”9 by Governor David B. Hill in 1886 with reference to In a clear effort to restrain the further expansion of municipal government in New York in a veto message, Greater New York, but with consequences far beyond this downstate Democrats had consistently been seeking to for future efforts to achieve local government consolida- restore greater autonomy for New York City through con- tion, a constitutional amendment passed in 1927 barred stitutional change from state government for decades.4 annexation of additional territory to a city was without After an extended debate, the 1894 Republican-controlled the consent of the people of the place to be annexed.10 constitutional convention placed the state’s cities in three Two constitutional amendments, in 1921 and 1927, classes by size of population, and required legislative laid the groundwork for successful state legislation lead- actions to be by general law affecting all cities within a ing to the adoption of the first county charters, in Nas- class. Matters applying to fewer cities than in the entire sau (1935) and Westchester (1937). Another amendment, class, or to a single city, were made subject to a suspen- passed in 1935, directed that the legislature offer counties sive mayor veto. That city’s mayor was given 15 days to a range of governance options, as it had done decades say if the measure was acceptable to it; if not, legislative earlier for cities.11 The 1935 amendment explicitly autho- re-passage was required. This was the first adoption of a rized the “transfer of any or all of the functions or duties home rule restriction on the legislature. of the county and the cities, towns, villages, districts and During the brief period of Democratic control of state other units of government contained in such county to government in 1913 and 1914 the legislature passed two each other or the state, and for the abolition of offices, major home rule measures. The general city law was departments, agencies or units of government when all of amended to allow each city in New York “to manage their functions are so transferred” notwithstanding other and control its property and local affairs.” It specified provisions of the constitution.12 In a provision similar to “twenty three wide ranging powers of cities allowing that for cities, it barred legislative action by special law them to obtain resources, build and maintain public applicable to the “property affairs or government” of a works, provide for public safety and welfare, regulate county except pursuant to an emergency message from economic activities, care for those in need and conduct the governor with the required two-thirds legislative its own business.” (Land use control was added in 1917.) majority, with an added local referendum requirement Remarkably, this law included a clause modeled after for structural change in local government offices by state that in Article II of the U.S. Constitution allowing each law.13 city to “exercise all power necessary and proper for car- The 1938 constitutional revision brought city and rying into execution the powers granted to the city.”5 The county home rule provisions together into a single article, second measure offered six alternative forms of govern- but still treated counties and cities distinctly within it. It ment for governance of the second or third class (defined originated the local home rule request process as an addi- by population) that might be sought through a popular tional means for the initiation of special legislation for initiative and referendum process.6 both cities and counties. And if a special bill was passed Home rule for cities finally entered the State Con- on gubernatorial initiative, without local request, a city stitution in 1923; the adoption of a Municipal Home (but not a county) could repeal, supersede or modify it by Rule Law followed in 1924. The two general substantive local action.14Additionally, the 1938 Constitution intro- objectives of the amendment – constraint on state power duced the idea of concurrent majorities for the transfer- and empowering cities – provided a recognizable fore- ence of functions from one class of government to another shadowing of the current constitutional design. Under in a county in connection with change in the county’s the amendment, legislation applicable to cities had to be form of government. Finally, the 1938 constitutional con- general and “apply alike to all cities.” The suspensive vention for the first time added a constitutional home veto was removed, but a law applicable to the “property, rule provision for villages with 5,000 people or more, affairs of government” of a city that was “special or local but without the local overrule of “emergency” measures in either its terms or effect” could be passed only upon passed without local initiative.15 the declaration of an emergency by the governor and A constitutional amendment passed in 1945 empow- with the concurrence of two thirds of the members of ered county governments to initiate home rule requests each legislative house.7 Cities were empowered to “adopt for special legislation without the participation of their and amend local laws not inconsistent with the constitu- executive officers. A 1958 amendment extended home tion and laws of the state” regarding their governmental rule provisions to the largest towns, those of the first structure, staffing and conditions of employment, con- class. duct of their business, regulating the conduct of and pro- The Bill of Rights of Local Governments adopted tecting their residents’ “property, safety and health” and in 1963 as the State Constitution’s article IX is thus the could be further empowered by the legislature at its dis- evolved culmination of two-thirds of a century’s incre-

26 | October 2017 | NYSBA Journal mental development of home rule. All home rule provi- government.17 This munificence of state law concerning sions were gathered in the Constitution in one place and local government made inevitable (even routine) clashes language made generally applicable. An initial statement of state with local laws enacted under evolving home rule of policy made “effective local self-government and inter- authority, with both state and local actions originating governmental cooperation . . . purposes of the people of with elected officials empowered by popular mandate. the state.” “Liberal construction” of the “rights, powers, privileges and immunities of local government” was Home Rule in Context directed. According to the National League of Cities, effective Much of the 1963 amendment was restatement. Pow- home rule for a local government has four key dimen- ers of localities were specified and the legislature directed sions: to act to effect them. Limitations on legislative ability to • Structural authority – Choices about governmental act regarding single local governments were continued, form and process; even strengthened. • Personnel authority – Choice about who works for But much was also new. Home rule was extended to the government, and the terms and conditions of all of New York’s municipal corporations, including the their employment; smaller villages and towns – the later evolved from rural • Functional authority – What local government actu- entities linked tightly to counties and governed in town ally does, services delivered, regulations adopted meetings to municipalities headed by elected boards, and enforced; and with functions largely analogous to those performed by • Fiscal authority – Decisions regarding taxing, bor- cities and villages. Constitutional language was general- rowing and spending, where to get money and how ized so that the home rule principle had the same mean- much and what to buy with it.18 ing and same detailed elements for every class of local In all four of these areas, home rule is not fully enjoyed government. Process restrictions on annexation were by New York’s local governments. Governmental struc- extended to all local governments, further diminishing tures and processes for villages, towns and counties that – perhaps entirely blocking – prospects for serious local have not adopted charters are specified in state law (albe- government restructuring. Concomitantly, constitutional it with a limited range of local choice). Leadership selec- references to the possible elimination of local govern- tion processes, eligibility for public office and election ments were removed. timing and processes are specified by the state. Personnel One very important thing, however, did not change: authority for local government is limited by overarching the repeated and consistent use of the term “property, civil service rules and, as noted, collective bargaining and affairs or government” to refer to local powers. This effec- pension requirements. New York is famously decentral- tively assured continuity in the interpretation of home ized in its service delivery; state-mandated functions, rule by the courts. with accompanying required local costs for local government, abound. The Constitution prohibits the delegation State and Localities: Clash of Laws by the legislature of taxing authority.19 All local taxes The adoption of constitutional home rule and its devel- must therefore be authorized by the state, within limits opment added to the great accumulation of constitu- and parameters set by the Constitution and state law. tional and statutory provisions in state law regarding All this leads to regular clashes between state and local government that had developed incrementally over local actions. The potential for these conflicts is elevated centuries, with periodic codification or recodification because state legislators are elected from geographically as New York’s governments developed and their func- specified (local) districts, and disciplined local voting tions became more numerous in response to population blocks are consequential in local and statewide elections. growth and economic and social change. In an essay So elected New York City politicians based in Albany written in 1994, Professor Richard Briffault of Colum- clash with elected New York City politicians in city offices bia Law School found that, in addition to its home rule regarding whether the use of plastic bags should be elimi- provision, the New York Constitution directly addressed nated in the city.20 Or Hudson Valley–based legislators local government in six articles, those pertaining to: seek state law to constrain the growth of the Hasidic Vil- the Legislature (III), Local Finance (VII), Corporations lage or Kiryas Joel, with the governor weighing in, mind- (X), Public Officers (XII), Taxation (XVI) and Housing ful of the importance and deliverability of this voting bloc (XVIII).16 To these may be added general provisions that in statewide elections.21 affect all of New York government, for example concern- To allow state intervention in local affairs desired by ing election administration (II), requiring merit hiring state legislators, techniques have been developed to sys- of public employees (V), guaranteeing public employee tematically bypass the intention of constitutional home pensions (V) and defining a system of courts (VI). Also, rule provisions. One well known example is the passage according to one count, there are 19 volumes of the state’s of laws general in form but specific in effect, such as the consolidated laws that have major significance for local plethora of measures applying to localities with popula-

NYSBA Journal | October 2017 | 27 tions of a million or more. New York City, of course, is the definition of the range of state action and a narrow one only local government in the state in this class. A similar for the action of local governments.31 The effect has been approach, general legislation with a singular effect, was so widespread that a recent bar association report on used to create the Kiryas Joel school district.22 Less well constitutional home rule concluded that: “Today the line known, the requirement for a home rule message for between matters of State concern and matters of local special laws to renewal of sales tax authority for counties concern is increasingly indistinct. Few constraints exist and cities has become the start of a negotiation between on the Legislature’s ability to interfere in local affairs by state legislators and local governments on the terms and special law.”32 conditions for obtaining needed state law.23 Because the state has plenary power to act on matters of state concern, it preempts the field if local govern- Interpretation of Home Rule ment has been determined by the courts to have acted Chief Judges John F. Dillon and Thomas Y. Cooley were in a manner that comes into direct conflict with it. State both born in New York. Dillon set out his defining speci- preemption may be explicit in the law or implied. Implied fication of the relationship between states and their local preemption occurs, the courts have said, when “either governments in 1868, while serving as Chief Justice of the purpose and scope of the regulatory scheme will be the Iowa Supreme Court: “Municipal corporations owe so detailed or the nature of the subject of regulation will their origin to, and derive their powers and rights wholly be such that the court may infer a legislative intent to from, the legislature,” he wrote. “It [the legislature] preempt, even in the absence of an express statement of breathes into them the breath of life, without which they preemption.”33 cannot exist. As it creates, so may it destroy. If it may The state does not always prevail in litigation in which destroy, it may abridge and control.”24 In direct contrast, implied preemption is at issue. In a very important recent while serving as Chief Justice of the Michigan Supreme case, the courts found that the town of Drydens’ land Court three years after Dillon wrote, Cooley argued: use power, not directly preempted by state Oil Gas and “local government is [a] matter of absolute right; and the Solution Mining Law, allowed it to ban fracking.34 The state cannot take it away.”25 problem is one of ambiguity. Attorneys advising local Dillon’s view came to be definitive when embraced government are likely to counsel caution, or even inac- by the U.S. Supreme Court in 1907 in the case of Hunter tion, if local authority is unclear. The tangle and expense v. City of Pittsburgh.26 According to Justice William H. of proceeding is a major disincentive. It this way, local Moody, writing for the court: power becomes self-limiting.35 Municipal corporations are political subdivisions of Finally, and paradoxically, political considerations the state, created as convenient agencies for exercis- may mitigate against the home rule principle being ing such of the governmental powers of the state as advanced by local leaders who might be expected to be may be entrusted to them. . . . The number, nature, its greatest advocate. Assertion of a principle is easily sac- and duration of the powers conferred upon these cor- rificed to gain a desired outcome. Having failed to gain porations and the territory over which they shall be adoption by the New York City Council, Mayor Michael exercised rests in the absolute discretion of the state.27 Bloomberg turned to the state legislature for the passage An adherence to the idea of subordination of locali- of his proposed “HAIL ACT, [which] for the first time, ties to the state persisted in New York after the adoption allowed livery cabs to accept passengers in the outer bor- of constitutional home rule in 1923. The seminal case of oughs and outside Manhattan’s central business district Adler v. Deegan concerned the state passage in 1929 of a who hail . . . [them] . . . from the street, and also expanded multiple dwelling law, revising the tenement house law the number of traditional yellow cabs accessible to pas- of 1901.28 The statute applied only to New York City, but sengers with disabilities.”36 was enacted without using the process then required by the Constitution for a special law. In upholding the law, Achieving Greater Home Rule the Court of Appeals established the “state concern” The persistent effort, now approaching a century and a doctrine, best captured in Judge Benjamin Cardozo’s half in duration, to obtain constitutional home rule in famous concurrence. If the object of legislation “be in a New York has had, at best, limited success. Assuring substantial degree a matter of State concern,” Cardozo continued state capacity to address genuine statewide said, “the Legislature may act, though intermingled with matters, along with achieving a greater range of local dis- it are concerns of the locality.”29 Citing precedent in cretion and more effective limitations on state interven- interpretation of earlier use in law of the term “property, tion when matters are local, remain high priority goals for affairs or government” Cardozo also noted that the mean- those committed to improved governance for New York. ing of statutory language was a matter for “the Court Some ideas to consider:37 of Appeals to define, not Webster’s dictionary.”30 Even 1. State purposes – Remove the “phrase property, after repeated revisions of the State Constitution’s home affairs and government” from the State Constitution rule article, court decisions persisted in an expansive and replace it with alternative language; perhaps

28 | October 2017 | NYSBA Journal 12. Constitution in force in 1938, Article III, § 26.2. return to a local “necessary and proper clause” so 13. Constitution in force in 1938, Article III, § 26.4. as to encourage reconsideration of the Court of 14. Constitution of 1938, Article IX, § 11. Appeals definition of the constitution’s home rule intent. 15. Constitution of 1938, Article IX, § 16. 2. Presumption of local authority to legislate – Specify 16. Intergovernmental Relations, The New York State Constitution: A Briefing Book, p. 119. a constitutional presumption regarding the primacy 17. New York State Local Government Handbook (2011), pp. 30–32, https:// of local action in constitutionally specified areas of www.dos.ny.gov/lg/publications/Local_Government_Handbook.pdf. local action. 18. Cities 101—Delegation of Power, National League of Cities, Dec. 13, 2016, 3. Preemption – Condition state preemption of local www.nlc.org/resource/cities-101-delegation-of-power. law upon explicit intention to do so. 19. Article XVI, § 1. 4. Mandates – Many states have passed mandate 20. Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times, limitations, payback provisions and fiscal impact Feb. 14, 2017, https://www.nytimes.com/2017/02/14/nyregion/cuomo- requirements to constrain mandates’ use and elevate blocks-new-york-city-plastic-bag-law.html. their visibility for political effect. These have had 21. See Gerald Benjamin, The Chassidic Presence and Local Government in the Hudson Valley, Albany L. Rev. (forthcoming 2017). limited effect.38 Instead, sort out state and local gov- 22. Gerald Benjamin, The Political Relationship, The Two New Yorks: State and ernment functions so governments at each level are City in a Changing Federal System (Gerald Benjamin and Charles Brecher, fully responsible and must fully finance their own eds.) (Russell Sage Foundation, 1988), p. 117; Louis Grumet and John Caher, activities, mitigating the need for major mandates. The Curious Case of Kiryas Joel (Chicago Review Press, 2016). 5. Finance – Create a constitutional basis for local 23. Gerald Benjamin, Winning the Battle, Losing the War: How Sales Tax Renewal Thwarts Constitutional Home Rule, Rockefeller Institute of Government, Aug. government access to and use of property and sales 2017, www.rockinst.org/observations/benjamin/2017-08-03_benjamin.aspx. taxes. 24. City of Clinton v. Cedar Rapids & Missouri River Railroad Co., 24 Iowa 455 6. the local government bar – In areas constitutionally (1868). preserved to localities, but in which there may be 25. People ex rel. Le Roy v. Hurlbut, 24 Michigan 44, 108 (1871). some ambiguity, engender a predisposition toward 26. 207 U.S. 161 (1907). asserting local authority in the state’s local govern- 27. Id. at 178. ment bar. 28. 251 N.Y. 467 (1929). 7. reorganization of local government as a condition 29. Id. at 491, quoted in N.Y.S. Bar Ass’n Committee on the New York State of greater home rule – Assertion of local authority Constitution, Report and Recommendations Concerning Constitutional Home requires a concomitant commitment to simplifying Rule (April 2, 2016), p. 23, www.nysba.org/homerulereport. and reordering New York State’s “non-system” of 30. Cited in Gerald Benjamin, The Political Relationship (1988), p. 117. local government to assure its efficiency, effective- 31. Caselaw is detailed in the NYSBA Report on Home Rule (2016), pp. ness and democratic accountability. One approach is 22–26. to establish constitutional criteria for local govern- 32. Id. at pp. 26–27 (footnotes omitted). ment viability and effectiveness, condition the contin- 33. Id. at p. 18, citing Laura D. Hermer, Municipal Home Rule in New York: Tobacco Control at the Local Level, 65 Brooklyn L. Rev. 321, 349 (1999). The bar uation of each local government on its meeting these association report details cases involving implied preemption at pp. 18–19. criteria, and create a constitutionally based entity to 34. Wallace v. Town of Dryden, 23 N.Y.3d 728 (2014); see Wallach v. Town of apply, interpret and enforce these criteria. n Dryden: New York Court of Appeals Holds That State Oil and Gas Law Does Not Preempt Town Zoning Ordinances Banning Hydrofracking, 128 Harv. L. Rev. 1542 1. Gerald Benjamin, The Evolution of New York State’s Local Government System (March 10, 2015). (prepared for the Local Government Restructuring Project, Rockefeller Insti- 35. See New York State Commission on Local Government Efficiency and tute of Governments, Albany, 1990, typescript, files of the author), p. 7, citing Competitiveness, 21st Century Local Government (2008), p. 36. New York State, Temporary State Commission on the Constitutional Conven- 36. Roberta A. Kaplan and Jacob H. Hupart, Can New York City Govern Itself? tion. Local Government (The Commission, 1967), Vol. 13. The Incongruity of the Court of Appeals’ Recent Cases Regarding Regulation of New 2. Jon Teaford, The Municipal Revolution in America (University of Chicago York City by New York City, 78 Alb. L. Rev. 105 (2014), p. 106. Press, 1975), p. 71. 37. This list draws some of its ideas from Richard Briffault, Local Government 3. 1890 N.Y. Laws ch. 569, § 2; 1892 N.Y. Laws ch. 686, § 2 and ch. 685, § 1 and The New York State Constitution, 1 Hofstra L. & Pol’y Symp. 79 (1996), at p. (cited in Benjamin, at p .9). 82. 4. Peter Galie, Ordered Liberty: A Constitutional History of New York (Ford- 38. See generally Robert. M. Shaffer, Comment: Unfunded State Mandates and ham University Press, 1996), p. 148. Local Governments, 64 U. Cin. L. Rev. 1057 (Spring 1996); Janet Kelly, Unfunded 5. Benjamin, supra n. 1, at pp. 42–43; 1913 N.Y. Laws ch. 247; 1917 N.Y. Laws Mandates: The View from the States, Public Administration Review, Vol. 54, No. ch. 483. 4 (July-August 1994), pp. 405–08. 6. 1914 N.Y. Laws ch. 444. 7. Constitution in force in 1938, Article XII, § 2. 8. Constitution in force in 1898, Article XII, §§ 3, 5. 9. Constitution in force in 1938, Article XII, § 4. 10. Constitution of 1938, Article IX, § 14. 11. Benjamin, supra n. 1, at pp. 16–22.

NYSBA Journal | October 2017 | 29 A Constitutional Convention – Opportunities to Restructure and Modernize the New York Courts By Stephen P. Younger and William F. Schmedlin

t its June 2017 meeting, the New York State Bar The sprawling structure of New York’s courts is a Association’s House of Delegates voted to sup- byproduct of Article VI, the Judiciary Article of the New Aport a constitutional convention for New York. York Constitution. Article VI creates the operating system One of the principal reasons why a convention could for our courts. Notably, it has been decades since there benefit New York’s legal profession is the opportunity it last was comprehensive reform of Article VI. The result would provide to modernize and streamline the opera- is a court system that has major structural barriers which tions of New York’s Unified Court System. New York has impede ready access to the courts for all New Yorkers one of the most byzantine and costly court structures, – whether for an indigent litigant who cannot afford a which is mandated by our state constitution. With 11 tri- lawyer or for a sophisticated multi-national corporation. al-level courts, New York has an unnecessarily complex In November 2017, New Yorkers will vote on whether and inefficient court system. to call for a constitutional convention. If a convention is called, it will provide a meaningful opportunity to study, Stephen P. Younger is a Partner with Patterson Belknap Webb & Tyler update and restructure New York’s court system. This LLP in New York City. He is a Past President of the New York State Bar sort of reform is long overdue. Modernizing the court Association. He Chaired the Judiciary Article Subcommittee of the State system would have meaningful benefits for every mem- Bar’s Committee on the New York State Constitution. ber of the Bar in New York, and for our clients. William F. Schmedlin is Counsel with Day Pitney LLP in New York City. He served as Secretary to the State Bar’s Judiciary Article Subcommittee. Nowhere is the potential for improvement of the State Constitution more evident than in the Judiciary Article.

30 | October 2017 | NYSBA Journal Despite its lofty statement that “there shall be a unified Since that time, while there has been some mod- court system,”1 it is hard to deny that our courts today est tinkering to the Judiciary Article, the overall court are hardly “unified.” This is largely because Article VI structure has remained essentially the same. During this is complex, wordy, at times redundant, and out-of-sync period, multiple commissions have recommended much with the modern legal world. needed reforms of the court system. In 2006, for example, The unduly complex nature of New York’s court the Dunne Commission10 made extensive recommenda- structure can pose difficulties for even the most experi- tions about updating the structure of the state’s judiciary. enced advocates who may need to access multiple courts Although legislation was introduced to advance these in order to resolve a legal issue. But for unrepresented proposals, it was not enacted. As a result, most court parties, navigating the state’s court system can involve innovations have been accomplished through policies surmounting structural impediments that stand between and procedures initiated by court leadership or patches them and achieving justice. Given the limitations of Arti- designed to work around constitutional restrictions – cle VI, court administrators have turned to workarounds such as the formation of New York’s Integrated Domestic to improve court operations. Violence courts. In order to bring New York’s court system into the History of New York’s Judiciary Article modern era, structural reform is needed. The upcoming The founders of the then-new State of New York did vote on a constitutional convention creates an opportu- not call for anything close to the court structure that we nity to explore more permanent solutions which would have today. Indeed, the original State Constitution did result in a stronger and more accessible judicial branch of not contain any article dedicated to the judiciary.2 While our state government. there continue to be some vestiges of our 1700s-era court system in the current legal system – such as divisions Current Structure of New York’s Court System between law and equity – our original State Constitution New York’s “unified court system”11 is in reality anything specifies little about the structure and operations of New but. With 11 trial-level courts, each governed by its own York’s courts. Rather, it took 240 years of constitutional rules, and with its own retirement ages for judges and changes – many of which were proposed at past con- jurisdictional limits and constraints, the New York courts ventions – to produce what is today’s “Unified Court are more complex than any court system in the nation. As System.” a result, when faced with a potential claim, a prospective Article VI had its genesis in New York’s Constitu- litigant needs to choose one of the following courts in tion of 1846, which provided for a Supreme Court with which to bring their case: general jurisdiction3 and a Court of Appeals.4 The 1894 • Supreme Court; Constitution introduced many aspects of the framework • Court of Claims; of today’s judiciary, such as the jurisdiction of the Court • County Court; of Appeals5 and the four departments of the Appellate • Family Court; Division.6 • Surrogate’s Court; One of the last structural reforms of the New York • New York City Civil Court; courts came more than 50 years ago in 1962 revisions to • New York City Criminal Court; the Judiciary Article, which followed the 1950s recom- • District Court; mendations of the Tweed Commission formed by Gov. • City Court; Thomas E. Dewey.7 These reforms included the creation • Town Court; and of the “Unified Court System” and the formation of an • Village Court. Administrative Board to promulgate statewide policies Even appellants with existing cases in the New York and procedures.8 courts may need to decide whether appeals go to one of The last structural reforms of the judiciary took place the four Appellate Division Departments, one of the two 40 years ago in 1977, following passage of the Unified Appellate Terms in the First and Second Departments, Court Budget Act. At that time, the voters passed three directly to the Court of Appeals, or even to a trial-level constitutional amendments. These changes emanated court.12 This archaic structure is largely a consequence of from the work of the Vance Commission9 created by Gov. an outmoded constitutional framework. Hugh Carey. Those amendments to the Judiciary Article consisted of merit selection of Court of Appeals judges Potential Areas for Court Reform through a new Commission on Judicial Nomination; There are several distinct areas in which Article VI can be statewide court leadership under the Chief Judge of the improved. State of New York and a new position of Chief Admin- istrator of the Courts; and a newly formed Commission A. Updating the Structure of the New York Courts on Judicial Conduct with power to sanction or remove Fundamentally, today’s court system is ripe for restruc- members of the judiciary. turing.

NYSBA Journal | October 2017 | 31 A key question that a constitutional convention would town and village justice, including whether justices need to need to address is whether a judicial system with 11 trial- be lawyers and what education and training they need in level courts is a sound way to administer justice in our state. order to serve on those courts. The State Bar and other interest groups have long advocated A convention can provide an opportunity to design for restructuring the trial courts.13 The most common sug- comprehensive methods to improve how New York’s gestion is to combine New York’s trial courts into a single, courts are organized. The goal would be to simplify the statewide trial-level court or into a group of two or three court structure while ensuring that New York has a judicial such courts. For example, the Dunne Commission, appoint- system that is the best our state can offer. ed by then-Chief Judge Judith S. Kaye, proposed combining these courts into a two-tiered trial court system with a B. Providing Flexibility to Adjust Court Structure in single Supreme Court and regional District Courts.14 Some the Future have suggested modifying this structure to keep the Fam- Another key reason why a constitutional convention could ily Court and/or the Surrogate’s Court as separate courts, be beneficial for the judiciary is the number of outdated given their specialized expertise. requirements contained in Article VI. Independent analyses of court restructuring proposals Article VI contains approximately 16,000 words.20 It have concluded that there are substantial budgetary savings takes up almost a third of the entire State Constitution. to be achieved from such changes.15 While initial expen- This is true even though New York’s Constitution has 20 ditures would be needed to accomplish a comprehensive articles, which establish powers for the Executive, Legisla- court restructuring, there would be recurring savings from tive, and Judicial branches of State government; provide such a reform, which would be budget-relieving going a Bill of Rights to protect the citizenry; and address such forward. Notably, one of the most significant areas of sav- disparate topics as conservation, taxation, housing, and ings would be the benefits to lawyers and their clients from state and local finances. easier access to the courts. In contrast, Article III of the U. S. Constitution leaves Unifying the trial-level courts would also have other it to Congress to fill in much of the details as to the pow- benefits. For example, a consolidated judicial system could ers and processes of the judiciary. Article III requires a have uniform retirement ages and consistent terms of office Supreme Court and provides that “Judges . . . shall hold for judges. their Offices during good Behaviour, and . . . receive for Similarly, the overburdened caseloads of the Appellate their Services, a Compensation, which shall not be dimin- Division, Second Department have long been a subject of ished during their continuance in Office.”21 It also specifies discussion within the Bar. Creating a new Fifth Depart- the contours of federal jurisdiction22 and the protection for ment would ease the burdens that have resulted from the right to jury trial.23 It accomplishes its goals in under major population shifts since the four Departments were 400 words. The details are left to be selected by Congress formed by the 1894 Constitution. An alternative would be as needs arise. This permits much more flexibility to adapt to re-allocate the state’s Judicial Districts within the exist- the judicial process as times require – as opposed to the ing four Departments. But this is currently not an option cumbersome process of amending the Constitution each absent a constitutional amendment.16 time that change is needed. The State Constitution also divides the state’s courts Some of the issues addressed in Article VI of the State into 11 Judicial Districts, which can only be increased once Constitution may be better left to the legislature. Doing every 10 years.17 This has resulted in New York having 13 so would allow the judiciary to better adapt to changing Judicial Districts, even though the Constitution specifies circumstances without going through the added complica- 11. tions inherent in amending the State Constitution. Another critical issue is how judges should be selected. For example, Article VI caps the number of Supreme The State Bar has long supported what has been called Court justices in any Judicial District at no more than “one “merit selection,” or a system where judges are appoint- justice for fifty thousand, or fraction over thirty thousand, ed.18 The Dunne Commission, through its “merger in of the population thereof as shown by the last federal cen- place” proposal for combining the trial courts, would have sus or state enumeration.”24 This constitutional limitation maintained the election of elected judges and appointment means that overburdened judges are unable to have their of appointed judges.19 Concerns about the particular meth- caseloads lightened by increasing the number of Supreme od of judicial selection – whether appointive or elective – Court justices if a Judicial District has already reached range from ensuring diversity in the judiciary to recruiting its constitutional cap on such judges. It has also resulted the best judges to serve on the bench. in workarounds by court leadership with frequent use Although certain to be a hot button topic, there is also of Acting Supreme Court Justices to fill the gap. There much to consider regarding the structure of the town and are structural issues with this constitutional formula. For village justice courts. A constitutional convention could example, the number of cases filed in a particular locality consider issues such as the eligibility criteria to become a is not directly tied to a Judicial District’s population. More

32 | October 2017 | NYSBA Journal over, this formula assumes that a small case uses the 12. criminal appeals from the City Court outside of the Appellate Term same judicial resources as a large one. It is thus not surpris- jurisdictions are taken to the County Courts instead of being taken directly to the Appellate Divisions themselves. See N.Y. Const. art. VI, § 11 (describing ing that the State Bar has opposed this cap for at least 20 the county court’s jurisdiction to include original jurisdiction and appellate years.25 jurisdiction). Rewriting or removing these constitutional limitations 13. See New York State Bar Association – Report of Action Unit No. 4 (Court would give our state’s judiciary better flexibility to react to Reorganization) to the House of Delegates on Trial Court Merger and Judicial Selection (dated 1979). future developments affecting the courts. 14. a Court System for the Future: The Promise of Court Restructuring in New York State – A report by the Special Commission on the Future of the C. Deleting Obsolete Provisions in the Judiciary Article New York State Courts (Feb. 2007), available at http://nycourts.gov/reports/ At a minimum, the 16,000 words that make up the Judiciary courtsys-4future_2007.pdf; NYSBA Committee on Court Structure & Opera- tions: Report by Subcommittee on Court Reorganization (Sept. 6, 2011). Article could be adjusted to remove remnants of bygone 15. The Committee for Modern Courts, “Court Simplification in New York eras. State: Budgetary Savings and Economic Efficiencies” (2012) at Appendix C, For example, one provision directs courts in handling http://moderncourts.org/wp-content/uploads/2013/10/CourtSimplifica- issues such as adoptions or guardianships to place children tioninNewYorkState73112.pdf. in “an institution or agency governed by persons, or in the 16. N.Y. Const. art. VI, § 4 (2015). custody of a person, of the same religious persuasion as the 17. Id. at § 6. The legislature created a 12th Judicial District pursuant to this child.”26 In the context of separation of church and state, this power effective January 1, 1983, and a 13th Judicial District effective January 1, 2009. See 1981 N.Y. Laws ch. 1006; 2007 N.Y. Laws ch. 690. seems an outdated mandate for our courts. 18. See April 3, 1993 House of Delegates Resolution. A comprehensive redrafting of the Constitution could 19. A Court System for the Future: The Promise of Court Restructuring in remove these sorts of anachronisms, correct references to New York State – A report by the Special Commission on the Future of the include recently created judicial districts, and could make New York State Courts (Feb. 2007), http://nycourts.gov/reports/courtsys- the Judiciary Article more easily understood by lawyers and 4future_2007.pdf; NYSBA Committee on Court Structure & Operations: Report by Subcommittee on Court Reorganization (Sept. 6, 2011). laypersons alike. 20. N.Y. Const. art. VI (2015). Conclusion 21. U.S. Const. art. III, § 1. The Judiciary Article of the State Constitution offers numer- 22. Id. at § 2. ous opportunities to improve and modernize the court 23. Id. system on which we depend to resolve legal disputes. 24. N.Y. Const. art. VI, § 6(d) (2015). Whether it is restructuring the judicial branch, granting the 25. See, e.g., April 1998 New York State Bar Association House of Delegates Minutes (“The population cap limiting the number of Supreme Court Justices legislature greater flexibility to modify and improve the per district should be abolished.”); May 31, 2007 New York State Bar Associa- court system in the future, or removing sections of Article VI tion Executive Committee Minutes (finding the Dunne Commission report that are obsolete, New York’s judiciary would benefit from consistent with State Bar policies); November 4, 2011 New York State Bar Association Executive Committee Minutes (resolving that “[t]he population a thorough review of Article VI. The multiple perspectives cap limiting the number of Supreme Court Justices per judicial district should that delegates to a convention would bring could lead to a be abolished[.]”). modernized court system that would help maintain New 26. N.Y. Const. art. VI, § 32. York’s place as a leader in delivering justice for all. n Learn more about Communities 1. N.Y. Const. art. VI, § 1 (2015). Member benefit SCAN HERE >> 2. See www.nycourts.gov/history/legal-history-new-york/documents/ Publications_1777-NY-Constitution.pdf. 3. Compare N.Y. Const. art. VI, § 3 (1846) with N.Y. Const. art. VI, § 7 (2015). 4. compare N.Y. Const. art. VI, § 2 (1846), www.nycourts.gov/history/ legal-history-new-york/documents/Publications_1846-NY-Constitution.pdf; with N.Y. Const. art. VI, § 2 (2015). 5. Compare N.Y. Const. art. VI, § 9 (1894), www.nycourts.gov/history/legal- history-new-york/documents/Publications_1894-NY-Constitution.pdf, with N.Y. Const. art. VI, § 3 (2015). 6. Compare N.Y. Const. art. VI, § 2 (1894) with N.Y. Const. art. VI, § 4 (2015). 7. the “Tweed Commission” was formally known as the New York State Temporary Commission on the Courts. Communities 8. See https://www.nycourts.gov/COURTS/nyc/housing/civilhistory. converse, connect and collaborate shtml. Communities feature: • Member-to-member communications • Collaborative workspaces 9. the Vance Commission was formally known as the Task Force on Court • Member profiles • Individual privacy settings Reform, created by then-Governor Hugh Carey and headed by Cyrus Vance. • Shared document libraries • Flexibility in timing and format of discussion messages 10. in 2006, for example, the Dunne Commission made extensive recommendations about reforming the structure of the Judiciary in New York. Although To be an active part of NYSBA’s communities, you can interact through email, the web or your mobile device. legislation was introduced, it was never passed. Visit: http://communities.nysba.org 11. See N.Y. Const. art. VI, § 1 (2015).

NYSBA Journal | October 2017 | 33 Why New York Needs a Constitutional Convention By Lillian Moy

Editor’s Note: On May 30, a joint subcommittee of the dubious” that voters will come out in large numbers, Committee on Legal Aid and the President’s Committee on except for hotly contested local races. Access to Justice took issue with the report submitted to the 3. The convention could make New York an initiative and House of Delegates in support of calling a state Constitutional referendum state, at the mercy of those seeking regressive Convention. The subcommittee members are Ronald Tabak, proposals or rolling back constitutional guarantees. Harvey Epstein, Sally Curran, Dennis Kaufman, Susan Horn, 4. The delegate selection process is flawed because it disad- Jeffrey Seigel, Joseph Kelemen, Lillian Moy, and Saima Akhtar. vantages poor and minority voters. All members except Ms. Moy and Ms. Akhtar signed on to the dissent, which is based on four major points of contention: ontrary to the subcommittee’s majority position, 1. The report to the House of Delegates incorrectly assumes I believe the New York State Bar Association that voters can reject changes they view as improper. It Cshould support the 2017 ballot question calling is more likely that special interests will work toward an for a constitutional convention. I am a lifelong legal “up or down” vote on a package of amendments in order aid lawyer and, at my core, I think of myself as a hope- to slip through regressive measures such as putting the ful and optimistic person. Calling for a constitutional death penalty into the constitution, or restricting wom- convention resonates with the hope and optimism that en’s rights. infuses my life’s work because a constitutional conven- 2. The report incorrectly assumes that changes the State Bar tion could create substantial new rights for our low- supports would be enough to attract voters to go to the income clients. As we have known for many years, the polls, but as 2019 is an off-year election it is “extremely benefits of court reorganization alone would greatly

34 | October 2017 | NYSBA Journal simplify the rights of low-income litigants. Multiple seat in news coverage. But without those races, the court appearances, coupled with multiple types of pro- only newsworthy state issue will be the conven- ceedings, make it extremely hard for a low-income per- tion. Thus, news outlets will provide extensive son to participate in the justice system. No other solu- coverage of what is at stake and voters will be tion has come to pass in spite of many years of support more informed on the issues – including the need for court reform. to make their voices heard rather than yield to the special interests. A convention is the one practical 3. the fear of an initiative and referendum state is exaggerated. New York need not repeat the mis- opportunity this generation of the takes of referendum states like California and Association has to modernize, clean up Massachusetts, but instead can learn from their and restructure the Constitution. mistakes. Indeed the convention could propose a limited referendum along the lines of what Gov. A constitutional convention provides the opportu- Mario Cuomo proposed long ago – namely, that nity to establish new positive rights. With respect to voters be given the chance, through referendum, to access to justice, the constitutional convention gives us force the legislators to vote on issues they would the chance to establish a right to counsel outside of the rather bottle up in committees. In short, a limited city of New York. This is a right that is unlikely to be form of initiative and referendum could be a good developed or funded by local cities and towns outside thing. of New York City. At the moment, there is no practi- 4. while there are fears that there will be a legal chal- cal alternative for creating a civil Gideon in the rest of lenge to the election process, there is no evidence state. The constitutional convention is our only hope for of any group or individual who has suggested establishing this right outside of New York City in our mounting one. What’s more, history shows that a generation. As the House of Delegates recognized, there constitutional convention has helped the poor – the is no practical alternative to a convention for enacting 1938 convention proposed, and voters endorsed, an many needed and desired reforms. anti-poverty measure that did just that. Nor is there empirical evidence to believe that long- Finally, it is indisputable that no convention in New held constitutional rights such as the “forever wild” York State’s history has ever resulted in the loss of a clause and Article 17 protections for the poor and needy major right or protection. Rather, conventions have only would be eliminated by convention delegates. It is added new ones.2 “unlikely constitutional delegates in sufficient numbers A constitutional convention is the one practical would roll back established rights, given the state’s opportunity this generation of the Association has to history and political demographics.”1 Moreover, any modernize, clean up and restructure the Constitution. such unlikely attempted rollback would also have to be I am glad that the New York State Bar Association has approved by the voters. joined with the League of Women Voters, Citizen Union The majority dissent is wrong on all its major points. of the City of New York, as well as former Chief Judge 1. the dissent is wrong in suggesting that voters can- Jonathan Lippman in voting for hope on behalf of low- not reject changes they don’t want. While it is true income clients throughout the state and supporting a that it would be better if voters could vote on each vote for a constitutional convention.3 n amendment separately, the fact remains that even if they are given only the option of voting on a pack- 1. Report of the Committee on the New York State Constitutional Conven- tion, page 26. age, they will have a dispositive say – and they 2. Peter J. Galie, Ordered Liberty: A Constitutional History of New York, can reject changes they disfavor. That’s what hap- Fordham University Press, 1996. pened after the 1967 convention, when voters had 3. Fix this government and vote this fall for a Constitutional Convention, N.Y. only the “up or down” option on a package that Daily News, May 22, 2017, www.nydailynews.com/opinion/fix-government- included a highly controversial proposal to remove vote-constitutional-convention-article-1.3180479.

the barriers to state aid for parochial schools. Vot- Lillian M. Moy has been the Executive Director of the Legal Aid Society ers said no to the whole package of reforms rather of Northeastern New York since 1995. Ms. Moy’s particular areas of than approve that proposal. Whether you agree expertise are leadership development and diversity. She currently serves with that vote or not, there is no disputing that on the ABA Standing Committee on Pro Bono and Public Service and the voters can reject changes they do not want. Legal Access Job Corps Task Force; is past Chair of the Civil Policy Group 2. the fears of low voter turnout are a distraction. and the Board of the National Legal Aid and Defender Association; serves The fact that 2019 will have no national or state as the Chair of NYSBA’s Committee on Attorney Professionalism; and races is actually a plus. If there were hotly con- serves on the Nominating Committee, President’s Committee on Access tested races at the federal or state level, the con- to Justice and the Committee on Legal Aid. stitutional convention would likely take a back

NYSBA Journal | October 2017 | 35 Burden of Proof By David Paul Horowitz David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over 26 years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and lectured on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam. He serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee.

Stay in the Zone

Introduction ing them.”3 The right to make these Traditionally, CPLR 3116(a) was A frequent topic of this column has changes is not granted by case law, or understood to permit changes of any been deposition practice in New York court rule, but by statute, specifically kind, including changes that could be State courts, and a frequent sub-topic CPLR 3116(a), although the right to outcome determinative, illustrated by a has been the evolution, or devolution, make changes to deposition testimony 2006 Second Department decision:8 of case law developments impacting had been recognized at least as far back [The deponent] testified at his the use of deposition testimony in sum- as 1926.4 The pre-CPLR procedure for deposition that although he signed mary judgment motions where the deposition corrections was set forth in the document he had no affirma- deponent has submitted either a depo- Columbia v. Lee:5 tive recollection of having ever sition errata sheet or an affidavit making Before the witness signs and sub- reviewed the document or of per- significant changes to the deposition scribes his testimony he may add sonal knowledge of the basis for testimony.1 Add to the mix a third line to the foot thereof a statement that the claim. Shortly thereafter Gizzi of cases where a party has made an certain of his answers (indicating furnished an errata sheet in accor- admission and then walks the admis- the answers to which he refers) are dance with CPLR 3116 (a), in which sion back at deposition. incorrect, giving the reason there- he corrected the substance of his The trend, such as it is, has been to for: either that it is an incorrect deposition testimony, claiming that sanction, and in some cases mandate, transcript or that his present recol- after refreshing his recollection the rejection of the subsequent “modi- lection of the facts is more accurate, about a meeting he attended before fied testimony,” regardless of the form and he may then state what his cor- preparation of the notice of claim, in which it is submitted. However, a rected answer is and give any other he now recalled that he had ade- 2016 Court of Appeals decision, Red explanation he desires with respect quate knowledge about the basis of Zone LLC v. Cadwalader, Wickersham & to his prior answer. After adding the claim and had in fact reviewed Taft LLP,2 may impact cases across the such a statement he must sign and the document before he signed it.9 spectrum of what is, and is not, permit- subscribe his testimony. This will The First Department in Cillo v. Res- ted by way of subsequent testimony leave available to the trial court the jefal Corp.10 permitted “substantive” used in summary judgment motions. original form of answer, which may changes that were accompanied by a then be compared with the second statement of the reason for the changes, Three Paths to Rejection form of answer to determine which noting that credibility issues created CPLR 3116(a) Deposition one may or should be credited.6 by the deponent’s deposition transcript Corrections In what is likely the first appellate changes were for the finder of fact: A deponent is permitted to make “any decision applying CPLR 3116, decided Defendant’s motion to strike plain- changes in form or substance which two months after the CPLR took effect, tiffs’ amended errata sheets or for the witness desires to make [and those the Fourth Department in Marine Trust further depositions was properly changes] shall be entered at the end of v. Collins,7 held the procedure set forth denied since a witness may make the deposition with a statement of the in Columbia v. Lee “should be followed” substantive changes to his or her reasons given by the witness for mak- in applying the then-new CPLR 3116. deposition testimony provided

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the changes are accompanied by a Last year the Second Department to be “insufficient to defeat summary statement of the reasons therefor. expanded on its Ashford holding and judgment.”18 Plaintiffs’ amended errata sheets enunciated a black letter rule barring The rationale behind the holding are accompanied by such a state- certain changes, regardless of the rea- was explained by the First Department ment. The changes raise issues of son: “[M]aterial or critical changes to in Fernandez v. VLA Realty LLC:19 credibility that do not warrant fur- testimony through the use of an errata Issues of fact and credibility are not ther depositions but rather should sheet is [] prohibited.”16 ordinarily determined on a motion be left for trial.11 So, while there appears to be a split for summary judgment. But where between different departments in the self-serving statements are submit- The Third Department has held “wit- Appellate Division, Second Department ted by plaintiff in opposition that nesses have the explicit right to change authority not only permits but man- “clearly contradict plaintiff’s own deposition testimony provided that dates the preclusion of certain deposi- deposition testimony and can only they do so in accordance with CPLR [] tion corrections that are submitted in be considered to have been tailored 3116(a).”12 full compliance with CPLR 3116(a). to avoid the consequences of h[is] However, with its 2013 decision in earlier testimony, they are insuffi- Ashford v. Tannenhauser,13 the Second The “Feigned” or “Tailored” cient to raise a triable issue of fact to Department, with support from prior Affidavit defeat defendant’s motion for sum- authority, held that where the depo- When subsequent testimony is fur- mary judgment” (citation omitted). nent “failed to offer an adequate reason nished in the form of an affidavit in Many courts have rejected the affi- for materially altering the substance of opposition to a summary judgment davits, considering only the deposition his deposition testimony, the altered motion, those that contradict critical testimony, with the result that summary testimony could not properly be con- elements of the affiant’s deposition tes- judgment is generally granted to the sidered.”14 In Ashford, the reason given timony have been labeled as “feigned” other side. for submitting deposition corrections or “tailored,” designed “to raise feigned was that the deponent “was nervous,” issues of fact to avoid the consequences An Earlier Admission which the Second Department held was of [the deponent’s] testimony.”17 Thus A third variant permitting subsequent inadequate as a matter of law.15 labeled, such affidavits have been found testimony, including deposition testi-

NYSBA Journal | October 2017 | 37 to avoid the consequences of his mony, to be precluded when the subse- rule barring all subsequent affidavit tes- prior admission to the police officer quent testimony contradicts an admis- timony that “flatly contradict[s]” prior and, thus, is insufficient to defeat sion, follows the rationale set forth in deposition testimony? And does Red [defendants’] motion for . . . par- the feigned affidavit cases above. In Zone intrude upon the jury’s role of tial summary judgment” (citations Garzon-Victoria v. Okolo,20 a party’s affi- evaluating credibility. omitted). The motion court prop- davit was precluded because of a prior Frankly, I have no idea, but I have erly rejected this testimony since the admission: about a month to figure it out and will totality of Behrouz’s submissions Plaintiff made a prima facie show- return to Red Zone in the next issue. create only a feigned issue of fact, ing of his entitlement to judgment Until then, enjoy the forthcoming kalei- and they are therefore insufficient to as a matter of law on the issue of doscope of fall foliage! n defeat defendants’ motions (citation liability by submitting his affidavit omitted).23 stating that defendants’ yellow cab 1. In fact, less “a frequent sub-topic” and more an obsession. struck him as he was crossing with- The Court of Appeals Red Zone 2. 27 N.Y.3d 1048, 34 N.Y.S.3d 397 (2016). in a crosswalk, with the pedestrian Decision 3. CPLR 3116(a). light in his favor, and after he had In Red Zone LLC v. Cadwalader, Wick- 24 4. Van Son v. Herbert, 215 A.D. 563, 214 N.Y.S. looked for oncoming traffic (cita- ersham & Taft LLP, a decision both 272 (1st Dep’t 1926). tions omitted). short and short on facts, the Court held 5. 239 A.D. 849, 264 N.Y.S. 423 (2d Dep’t 1933). In opposition, defendants failed to it was error to preclude an affidavit 6. Id. at 850. raise a triable issue of fact. Defen- submitted in opposition to summary 7. 19 A.D.2d 857, 243 N.Y.S.2d 993 (4th Dep’t dant driver Michael Okolo himself judgment motion seeking to strike a 1963). admits in his affidavit that both he defendant’s statute of limitations affir- 8. Breco Envtl. Contrs., Inc. v. Town of Smithtown, and plaintiff spoke with the police. mative defense: 31 A.D.3d 359, 818 N.Y.S.2d 244 (2d Dep’t 2006). Because Okolo’s statement consti- Viewing the evidence in the light 9. Id. at 360. tutes an admission against interest, most favorable to defendant as the 10. 295 A.D.2d 257, 743 N.Y.S.2d 860 (Mem) (1st it is admissible (citations omitted). non-movant (citations omitted), Dep’t 2002). Okolo’s affidavit containing a dif- material triable questions of fact 11. Id. at 257. ferent version of the facts appears exist regarding whether defendant 12. Boyce v. Vazquez, 249 A.D.2d 724, 726, 471 to have been submitted to avoid the failed to exercise the ordinary rea- N.Y.S.2d 724 (3d Dep’t 1998). consequences of his prior admis- sonable skill and knowledge com- 13. 108 A.D.3d 735, 970 N.Y.S.2d 65 (2d Dep’t 2013). sion to the police officer and, thus, monly possessed by members of 14. Three of the four cases cited by the Ashford is insufficient to defeat plaintiff’s the legal profession (citation omit- Court involved cases where no reason was fur- motion for partial summary judg- ted). While a party may not create nished, but the fourth, Kuzmin v. Visiting Nurse ment (citations omitted).21 a feigned issue of fact to defeat Serv. of N.Y., 56 A.D.3d 438, 866 N.Y.S.2d 781 (2d Dep’t 2008), held the trial court “properly struck Citing Garzon-Victoria, the First summary judgment (citation omit- the affidavits of correction submitted by the plain- Department, in Estate of Mirjani v. DeVi- ted), contrary to plaintiff’s assertion tiff inasmuch as she failed to provide a sufficient to,22 precluded a party’s deposition tes- here, the affidavit of the attorney explanation for the significant changes to the deposition testimony,” and Kuzmin cited earlier author- timony on the same basis: who represented plaintiff did not ity for the same proposition. Here, the certified police report and flatly contradict his prior deposition 15. Id. the officer’s deposition testimony testimony. Therefore, the affidavit 16. Torres v. Board of Education of City of New York, unequivocally state Behrouz did should have been considered in 137 A.D.3d 1256, 1257, 29 N.Y.S.3d 396 (2d Dep’t not remember how the accident opposition to plaintiff’s motion.25 2016). happened. Indeed, Behrouz, at his Thus, in the world of affidavits sub- 17. Kudisch v. Grumpy Jack’s, Inc., 112 A.D.3d 788, deposition, acknowledged telling mitted in opposition to a motion for 791, 977 N.Y.S.2d 663 (2d Dep’t 2013). this to the police but went on to summary judgment, while affirming 18. Id. testify that he regained his memory the validity of the “feigned affidavit 19. 45 A.D.3d 391, 391, 845 N.Y.S.2d 304 (1st Dep’t 2007). several months later when he visit- rule,” the Court made clear that the 20. 116 A.D.3d 558, 983 N.Y.S.2d 718 (1st Dep’t ed the scene. His testimony regard- affidavit may only be precluded where 2014). ing how the accident occurred it “flatly contradict[s]” the prior deposi- 21. Id. was flatly contradicted by that of tion testimony. 22. 135 A.D.3d 616, 24 N.Y.S.3d 263 (1st Dep’t DeVito, Riso and Fulcoly, as well 2016). as by plaintiff Kerendian, who was Conclusion 23. Id. a passenger in Behrouz’s vehicle. What impact, if any, does Red Zone 24. 27 N.Y.3d 1048, 34 N.Y.S.3d 397 (2016). Behrouz’s testimony therefore have on CPLR 3116(a) errata sheets? 25. Id. “appears to have been submitted Does Red Zone lay down a black-letter

38 | October 2017 | NYSBA Journal How an Uncommonly Silly Law Led to a Host of Very Consequential Supreme Court Decisions By C. Evan Stewart

n 1879, Connecticut passed a law barring the use of “Bad” Substantive Due Process “any drug, medicinal article or instrument for the The Supreme Court’s track record on substantive due Ipurpose of preventing conception”; the penalty was process is far from stellar. It made many terrible decisions “not less than fifty dollars” or between 60 days and one before it began experimenting with substantive due pro- year in prison. And the state legislature also made it a cess in what many people consider a “good” way in the crime to aid or abet such activity. 1960s. The worst decision, in my judgment, was the inven- Connecticut’s law was challenged repeatedly in the tion of substantive due process in Dred Scott v. Sandford,5 years thereafter, even reaching the U.S. Supreme Court where the Fifth Amendment was held to protect the right several times, but without effect. In 1965, the Court to travel with one’s “property” (i.e., one’s slave). The decided to address the law head-on, a law one Justice Court thereafter expanded on that “original sin,” via the derided as “uncommonly silly.” Yet the outcome of that 14th Amendment, into protecting the right of economic case, Griswold v. Connecticut,1 was far from silly. For the free will in Lochner v. New York,6 which struck down a first time the nation’s highest court declared that the Con- New York law that sought to regulate the number hours stitution implied a fundamental right to privacy, thereby setting in motion the direct doctrinal basis for some of the C. Evan Stewart is a senior partner in the New York City office of Cohen most consequential social policy rulings of our time – Roe & Gresser LLP, focusing on business and commercial litigation. He is an adjunct professor at Fordham Law School and a visiting professor at v. Wade2 (abortion), Lawrence v. Texas3 (right of same sex Cornell University. Mr. Stewart has published over 200 articles on various 4 sex), and Obergefell v. Hodges (same-sex marriage). All of legal topics and is a frequent contributor to the New York Law Journal those decisions, whether acknowledged or not, involved and the NY Business Law Journal, a publication of NYSBA’s Business Law the Court’s application of substantive due process. Section.

NYSBA Journal | October 2017 | 39 a baker could work per week. The Court rejected New Griswold [the Executive Director of Planned Parent- York’s “arbitrary” and “unreasonable” interference with hood’s Connecticut operation] arrested.” On November an individual’s “freedom of contract”; Lochner was sub- 1, 1961, the facility opened in New Haven. Several days sequently used to promote “laissez-faire constitutional- later, New Haven police detectives began assembling pre- ism” throughout the first part of the 20th Century, as one arranged evidence which demonstrated that Griswold by one the Court struck down virtually all of President and Leo Buxton, a professor at Yale Medical School and Roosevelt’s “New Deal” legislation. It likely would have the medical director at the clinic, were giving birth con- continued on that path were it not for FDR’s threat to trol devices, as well as advice related thereto, to a num- pack the Court in 1937. In response to that constitutional ber of local, married women. On November 10, arrest crisis, the Court did an abrupt 180-degree turn.7 warrants were issued for both Griswold and Buxton for Many lawyers and political scientists have been very violating the aiding and abetting provision. The test case critical of the foregoing substantive due process decisions had begun. by the Court; and a good number of those critics have At the trial stage, the defendants were found guilty not liked unelected Justices weighing in on obviously and each fined $100. The intermediate appellate court political matters, as well as the policy ends promoted by affirmed the verdict (the court declined to pass judgment those decisions (e.g., racism, striking down “progressive” on the “wisdom or unwisdom” of the law unless it was legislation, etc.). But what if substantive due process were “plainly violative of some constitutional mandate”). On to be used going the other political way? April 28, 1964, the Connecticut Supreme Court affirmed the lower courts, noting that “every attack now made on “Good” Substantive Due Process the statute . . . has been made and rejected” by each and The first time the Court started experimenting with sub- every court, over many years. Next up: the U.S. Supreme stantive due process in a “good” way came in the 1960s, Court. and involved the “uncommonly silly” Connecticut law that had been challenged over the years – but always On to the Supremes unsuccessfully. In 1961, the Supreme Court seemed to Griswold and Buxton’s lawyers invoked 28 U.S.C. § 1257 put an end to all repeal efforts in Poe v. Ullman,8 when (where a statute is “repugnant to the Constitution”) in it dismissed a lawsuit directed against the Connecticut their petition to the Court, invoking Amendments One, law for failure to state a case or controversy. In his dis- Four, Nine, and Fourteen as the affected Constitutional sent, however, Justice John Marshall Harlan II suggested provisions. In December of 1964, a unanimous Court a legal path forward through a broad reading of liberty agreed to grant certiorari, and briefing took place at the rights under the 14th Amendment: beginning of the next year. [T]he full scope of the liberty guaranteed by the Due On March 29, 1965, the Court began to hear oral Process Clause cannot be found in or limited by the argument, and it was tough sledding for both sets of precise terms of the specific guarantees elsewhere advocates; each was constantly interrupted by questions, provided in the Constitution. This ‘liberty’ is not a unable to get to many of the points they had intended series of isolated points pricked out in terms of the to raise. At one point, Justice Hugo Black suggested to taking of property; the freedom of speech, press, and appellants’ counsel that his side was advocating the same religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. kind of (discredited) substantive due process doctrine It is a rational continuum which, broadly speaking, endorsed by Lochner and its progeny; that led to some includes a freedom from all substantial arbitrary very heated back and forth. Notwithstanding, appellants’ impositions and purposeless restraints,…and which counsel did try to focus on that which had been advanced also recognizes, what a reasonable and sensitive judg- in the briefs – what Harlan had been getting at in Poe: an ment must, that certain interests require particularly emerging Constitutional right of privacy, grounded in careful scrutiny of the state needs asserted to justify the First, Third, Fourth, Fifth, and Ninth Amendments. their abridgment. Justice Harlan piped in at that point and asked whether That language would become transformative for much appellants’ counsel was planning to say anything more of the Supreme Court’s 14th Amendment jurisprudence on the First Amendment issue. His reply: “Well, I’m not over the next six decades. getting far on any of my arguments . . . .” After laughter throughout the courtroom subsided, he concluded: “I A Test Case Is Born can’t guarantee that I’ll get back to the First Amendment, In addition to Harlan’s doctrinal approach, Justice Wil- no.” The argument then moved on to the fact that the liam Brennan’s concurrence in Poe – that a “true contro- Connecticut law did not “conform to current community versy” did not exist because no one had been arrested in standards.” violation of Connecticut law – provided the law’s oppo- Counsel for the State of Connecticut was equally ham- nents with a plan. Planned Parenthood decided first to mered, especially on the fact that Connecticut was the open a clinic in Connecticut and thereafter to “get Estelle only state that prohibited the use of contraception. The

40 | October 2017 | NYSBA Journal Court adjourned midway through his presentation, and vacy” for the first time in the country’s history, Douglas took up argument the following day. The focus the next indicated that this new right would be a very limited one: day was on whether the statute was a proper use of Con- We deal with a right of privacy older than the Bill of necticut’s police power and whether the seldom-enforced Rights – older than our political parties, older than law was really a “dead letter.” our school system. Marriage is a coming together for In his rebuttal, appellants’ counsel tried to focus on better or for worse, hopefully enduring, and intimate broad public policy issues. But then a series of questions to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, from the Court on the unbriefed subject of abortion took not political faiths; a bilateral loyalty, not commercial center stage. At one point, Justice Byron White observed: or social projects. Yet it is an association for as noble a “I take it abortion involves killing a life in being, doesn’t purpose as any involved in our prior decisions. it? Isn’t that a rather different problem from conception?” Appellants’ counsel agreed, but was unable to stop Jus- Justice Goldberg’s concurrence agreed with the newly tice Black from probing farther on this hot-potato issue discovered Constitutional “right of marital privacy” and its possible application to the case before the Court. (even though it “is not mentioned explicitly in the Con- Finally, at 10:45 a.m. on March 30, oral argument constitution”). His justification, however, was not based cluded. And as with most cases argued before the Court, upon “penumbras” or “emanations.” With the help of his no one could predict how the nine Justices would resolve imaginative law clerk, Stephen Breyer, Goldberg empha- the weighty matters briefed and orally vetted. sized the importance of the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall The Court Decides not be construed to deny or disparage others retained by On June 7, 1965, Justice William Douglas (who had not the people.”). Why emphasize the Ninth Amendment? asked a single question at oral argument) delivered the Because “this Court has had little occasion to interpret” opinion of the Court. Justice Arthur Goldberg wrote a that Constitutional provision, so perhaps the jurispru- concurring opinion, which was joined by Chief Justice dential vacuum could be used to say that the “forgotten” Earl Warren and Justice Brennan. Justice Harlan wrote a amendment actually “lends strong support” to this new separate opinion, concurring in the result, as did Justice right of marital privacy. The sole authority for this dubi- White. Justices Black and Potter Stewart each wrote dis- ous assertion, however, was a “cf.” citation to a prior senting opinions. opinion of the Court interpreting the Hatch Act! As for Justice Douglas noted at the outset that there was not how to determine “which [other] rights are fundamental” a problem of standing (which had defeated a prior chal- enough to receive Constitutional protection, Goldberg lenge to the statutes) because Griswold and Buxton had provided a facile solution: “look to the ‘traditions and been found guilty of the aiding and abetting provision. [collective] conscience of our people’.” That was the easy part. Perhaps recognizing the foregoing was not on the Moving on to the merits, Douglas, in striking down most solid ground (and anticipating caustic attacks from Connecticut’s law, recognized that the result might sound Black and the usually mild-mannered Stewart), Goldberg a lot like Lochner and its substantive due process progeny. spent the rest of his concurrence agreeing and re-agreeing Not so: “We do not sit as a super-legislature to determine with Harlan’s dissent in Poe. the wisdom, need, and propriety of laws that touch eco- Justice Harlan concurred with the result, but rejected nomic problems, business affairs, or social conditions.” the imaginative way the majority got there. Rather than Instead, the Court was only substituting its wisdom for trying to avoid the Lochner stigma – by invoking “penum- the Connecticut legislature because the legislators had bras” and “emanations,” let’s call a spade a spade: obvi- passed a law that “operates directly on an intimate rela- ously, this is substantive due process; but now it is being tion of husband and wife and their physician’s role in one used (as he wrote in Poe) not in a bad Lochner way, but aspect of that relation.” instead to vindicate one of the “basic values implicit in In justifying the Court voiding the law, Douglas first the concept of ordered liberty.” As for those who would invoked Harlan’s dissent in Poe; but then he went a step worry about opening a Pandora’s Box with this approach, farther, finding that various provisions of the Bill of don’t worry: “Judicial self-restraint” will ensure that the Rights (the First, Third, Fourth, Fifth, and Ninth Amend- Court does not go crazy in the future. And such self- ments) have privacy guarantees which “have penumbras, restraint will be achieved through (i) respecting history, formed by emanations from those guarantees that help (ii) recognizing the aforementioned “basic values,” and give them life and substance” (emphasis added). Douglas (iii) appreciating federalism and the separation of pow- then cited a number of prior Supreme Court “penumbra- ers.9 like” cases which “bear witness that the right of privacy Justice White, also concurred in the result, but took which presses for recognition here is a legitimate one.” on an even more direct approach than did Harlan. In Obviously concerned about how wide a door he might essence, he wrote that Connecticut’s law was so stupid, be opening by recognizing a Constitutional “right of pri- it violated due process. In an opinion littered with “cf.”

NYSBA Journal | October 2017 | 41 citations, White questioned how a ban on contraception son no little wonder.” Stewart then addressed the com- affecting married people could somehow prevent illicit ment made at oral argument about non-conformity with sexual relations. Because of the broad impact of the stat- “current community standards”: “it is not the function ute on compelling societal interests (i.e., children), Con- of this Court to decide cases on the basis of community necticut was bound to justify the laws; and because the standards.” If people do not like a law, the correct way state could not, the law must be voided. to proceed is “to persuade their elected representatives Justice Black’s dissent, while less famous than Stew- to repeal it. That is the constitutional way to take [a] law art’s, presented a telling critique of the opinions of his off the books.” judicial brethren who voided Connecticut’s law. While initially agreeing that the Connecticut law was dumb, he Pre- and Post-Blowback wrote that that did not rise to a Constitutional violation. Well before the various opinions were made public, it As for a Constitutional right of privacy, obviously it exists was evident to some Court insiders that what was to nowhere in the Founders’ document (nor are there any come would have great significance. Most importantly, “emanations” therein); indeed, the first time the concept two memoranda written by Warren’s clerk, John Hart emerged is in an 1890 article in the Harvard Law Review! Ely, foresaw much of what lay ahead. The first was dated With respect to the embrace of substantive due process, February 26, 1965, before oral argument, and it was dis- Black wrote that he thought the Court had rid itself of tributed beyond Warren to a number of the other Justices. that noxious doctrine when the Court did its pivot in the In his memorandum, Ely warned that “some of [the 1930s and stopped voiding FDR’s New Deal legislation. arguments] urged by appellants have dangerous impli- In any event, “[s]uch an appraisal of the wisdom of legis- cations”: “Just as I think the Court should vigorously lation is an attribute of the power to make laws, not of the enforce each clause in the Constitution, I do not think power to interpret them . . . [the former is] a power which the Court should enforce clauses which are not there. was specifically denied to federal courts by the conven- No matter how strong a dislike for a piece of legislation tion that framed the Constitution.” As to White’s burden may be, it is dangerous precedent to read into the Con- point, Black countered that White got it exactly wrong: stitution guarantees which are not there. Despite Justice laws are presumed to be Constitutional. Regarding Gold- Brandeis’s lifelong crusade for a right of privacy , . . . the berg’s proposed standard of the “traditions and [collec- Constitution says nothing about such a right.” And as for tive] conscience of our people,” where and/or how does Justice Harlan’s approach in his Poe dissent, that would the Court determine them?: “Our Court certainly has no constitute “in my opinion, the most dangerous sort of machinery with which to take a Gallup Poll.” Finally, as ‘activism.’” Ely concluded his February memorandum to the notion that the Court must “keep the Constitution by advising Warren that to reverse the lower courts on in tune with the times,” that is precisely what led to all a right to privacy ground “would, in my opinion, have the mischief in Lochner and its progeny; if people want very dangerous implications.” to update the Constitution, the Founders provided a Later on, when Douglas was circulating drafts of his precise mechanism to do that (a mechanism which does opinion, a number of other Supreme Court clerks were not involve the Court). On this last point, Black ended taken aback by the weakness of the analysis, with a few by quoting the late Judge Learned Hand’s disparaging openly mocking his “penumbras” and “emanations.” of judges using substantive due process to favor their More ominous was Ely’s second memorandum to War- “personal preferences”: “For myself it would be most irk- ren, written after Douglas’s nearly finalized opinion: some to be ruled by a bevy of Platonic Guardians, even if “This opinion incorporates an approach to the Constitu- I knew how to choose them, which I assuredly do not.” tion so dangerous that you should not join it.” Justice Stewart began his dissent with his famous It appears that the only person in the Supreme Court’s observation: “this is an uncommonly silly law. As a prac- building who actually liked what Douglas had come up tical matter, the law is obviously unenforceable, except in with was Justice Tom Clark. On April 28, he penned a the oblique context of the present case.” He then warmed note to Douglas: “Bill, Yes I like all of it – it emancipates to the task at hand, chastising the majority for being afraid femininity and protects masculinity–- TC.” to label what they were really doing: reviving substantive After the ruling, the immediate reaction by the media due process – at least Harlan and White had the courage was fairly predictable. The liberal press (e.g., the New to call it what it is. As for Douglas’s “emanations” and York Times, Washington Post, Life, New Republic) hailed the “penumbras” of marital privacy, they are nowhere to be Court’s action to protect “the people” from troglodyte found in any of the enumerated Amendments. And as for state legislators. The mainstream press (e.g., Richmond Goldberg’s hyping of the Ninth Amendment, that is “to Times-Dispatch), however, thought the dissents were right: turn somersaults with history”: “the idea that a federal “The fact that members of the court simply don’t like a law court could ever use the Ninth Amendment to annul a is no basis for throwing it out.” (emphasis in original); law passed by the elected representatives of the people of and a number of publications (e.g., Waterloo Daily Courier) the State of Connecticut would have caused James Madi-

42 | October 2017 | NYSBA Journal lampooned and/or lambasted Douglas’s “penumbras” Law Review 2155 (2014). And Jill Lepore has weighed and emanations.” in on Griswold (and related subjects) in two recent Perhaps more important were the first wave of law New Yorker articles: “To Have and to Hold” (May 25, review articles. The annual Supreme Court edition pub- 2015); “The History Test” (March 27, 2017). lished by the Harvard Law Review in 1965 opined that the • Justice Stewart’s “uncommonly silly law” phrase two approaches endorsed by Douglas and Harlan “differ was later cited with approval by Justice Clarence more in tone than in results to which they lead.” What the Thomas in his dissent in Lawrence v. Texas.10 Review’s editors found more curious was Goldberg’s hyp- • Goldberg’s Ninth Amendment opinion in Griswold ing of the Ninth Amendment, which had never been the would be his last as a Supreme Court Justice. At basis for a single decision by the Court since its adoption President Johnson’s importuning, he left the Court in 1791. Later in 1965 came an entire issue of the Michigan to replace Adlai Stevenson as the U.S. Representa- Law Review devoted to Griswold; while most of the legal tive to the United Nations. His seat on the Court academics praised the result – a Constitutional right to was filled by Abe Fortas. Goldberg’s law clerk, of privacy – many questioned the means to get there. Profes- course, is now Justice Breyer. sor Paul Klapper, for example, found Douglas’s opinion: •John Hart Ely became one of America’s leading “curious,” “puzzling,” “confusing,” “uncertain,” and legal scholars (ranked as the fourth most cited legal “ambiguous.” Professor Robert Dixon wrote: “The actual authority – after Richard Posner, Ronald Dworkin, result of Griswold may be applauded, but was it necessary and Oliver Wendell Holmes), and served as Dean of to play charades with the Constitution?” And a consen- the Stanford Law School. His 1980 book, Democracy sus among the various academics seemed to form around and Distrust: A Theory of Judicial Review (Harvard the notion that – notwithstanding the various approaches Press) is considered one of the most important of Douglas, Goldberg, Harlan, and White – they all were, and influential books about Constitutional law ever at bottom, “treading a worn and familiar path.” And that written. In 1973, after the Court had decided Roe v. path subsequently became known as “liberal Lochner- Wade, Ely published an article in the Yale Law Journal ism.” (Volume 82). In it he posited that the two rights discovered by the Griswold and Roe Courts were made The Future of Griswold from the same “whole cloth” as Lochner. He went on While Douglas’s new Constitutional right was expressly to write that “although Lochner and Roe are twins to limited to “marital privacy,” it did not stay there for long. be sure, they are not identical. While I would hesitate As noted above, Griswold subsequently became the direct to argue that one is more defensible than the other doctrinal basis for Roe v. Wade; Lawrence v. Texas; and in terms of judicial style, there are differences in that Obergefell v. Hodges. Will it be extended even further? That regard that suggest Roe may turn out to be the more probably depends upon the make-up of the Court. dangerous precedent.” Ely supported the availability We have all witnessed bruising nominations to the of abortions as a matter of public policy, but Roe (he Supreme Court. First came President Barack Obama’s wrote) “is not constitutional law and gives almost no 2016 nomination of Judge Merrick Garland, upon which sense of an obligation to try to be.” n the Senate never took action. Next up was President Trump’s nomination of Judge Neil Gorsuch, who was 1. 381 U.S. 479 (1965). confirmed (after the “nuclear option” was invoked) by a 2. 410 U.S. 113 (1973). 55–45 vote in the Senate on April 7, 2017 (he is now the 3. 539 U.S. 558 (2003). 101st Associate Justice of the Court). If Justices Kennedy 4. 576 U.S. ____, 135 S.Ct. 2584 (2015). and/or Ginsburg are the next retirees from the Court, it 5. 60 U.S. 393 (1856). is likely that the nomination process for their successors 6. 198 U.S. 45 (1905). will reach new heights of contentiousness (on both sides 7. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones & Laughlin of the political aisle). Among other things, the fate of Steel Corp., 301 U.S. 1 (1937). “good” substantive due process will likely hang in the 8. 367 U.S. 497 (1961). balance of who succeeds these Justices. 9. Ironically, Harlan’s grandfather, John Marshall Harlan, had espoused exactly the opposite approach in his Lochner dissent. Underscoring that a basic Postscripts tenet of our democracy is a restrained judiciary, he wrote: “If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor • For those who wish to know more about Griswold, of its validity, and the courts must keep their hands off, leaving the legislature the first stop should be John Johnson’s Griswold v. to meet the responsibility for unwise legislation. If the end which the legisla- Connecticut: Birth Control and the Constitutional Right ture seeks to accomplish be one to which its power extends, and if the means employed to the end, although not the wisest or best, are yet not plainly and of Privacy (Kansas Press 2005). The 1965 Michigan palpably unauthorized by law, then the court cannot interfere.” Law Review referenced supra is in Volume 64. A more 10. 539 U.S. 558 (2003). recent scholarly law review take on Griswold is Ryan William’s “The Path to Griswold,” 89 Notre Dame

NYSBA Journal | October 2017 | 43 law practice management

The Next Wave of Security By Brian Podolsky

t happens all the time. Every year Brian Podolsky leads the Enterprise Content Management (ECM) Practice Group in the New York clients seem to want heightened office of Kraft & Kennedy, Inc. He has extensive experience implementing and supporting Microsoft Isecurity from their legal Office, iManage, NetDocuments, OpenText eDOCS, and Worldox document management systems, as representation. New technology and well as third-party integrated add-ons to these systems. He also drives Kraft Kennedy’s research on products promise to meet all your the latest ECM technologies including email management, enterprise collaboration and search, and security needs, but then clients knock provides guidance and best practice standards to clients implementing ECM solutions. you back with a new wave of even newer security policy demands. It can be daunting both for attorneys and a prosperous enterprise if you can writing them down on a Post-It stuck their firms’ IT and risk managers. quickly prove you can answer a to their desks or monitors. It’s also Years ago, for example, the firewall security audit completely and to the common for a partner to provide was the first security barrier most client’s satisfaction. login information to an associate or firms deployed. Firms could stay safe administrative assistant. Common, by allowing only certain activity (for The Threat Within but still a major no-no. Additionally, example, inbound email and Citrix To control access within the internal attorneys and staff are often the targets remote access) into the network. Today, network, firms implement identity- of email phishing campaigns, where however, malware and phishing based access lists and content-based a hacker spoofs the email address of from emails often defeat firewalls. ethical walls. The idea is simple. Cer- an IT admin, making it seem like IT This has led firms to invest in email tain users have permissions to partic- is asking a user for their credentials to hygiene engines such as Mimecast. ular areas of their computers and net- troubleshoot a computer issue. Never Unfortunately, hackers always seem to works. The problem with this solu- send your password to anyone over be one step ahead of these solutions, tion is that it requires an extremely email. so they are not foolproof. Moreover, strong password policy to ensure that With ethical walls, certain content firewalls and email hygiene scanners credentials are not stolen or shared. within a document management do nothing to protect firms from Weak passwords can be hacked rela- system (DMS) or elsewhere can be internal threats. tively easily by malicious scripts. restricted such that only particular Anticipating the future demands Attorneys are sometimes required users know it even exists. The problem of clients is the key to ensuring a to use complex passwords, but many here, however, is that the method relies safe enterprise. It can also lead to take the highly inadvisable step of on proper filing of the material. A

44 | October 2017 | NYSBA Journal Business of Law secure document can accidentally be court, jurisdiction, or industry saved The proper solution should be saved into a public matter, and poof, it’s into matter profiles, attorneys can seamless and integrated into both the not secure when an attorney thought determine which matter or responsible Windows desktop environment and it was. attorney to contact and can obtain the the DMS. Recently, two products are The one thing all these security relevant information they need. showing signs of breaking the usability caveats have in common is they involve Next, major legal vendors are barrier and integrating with the legal you, the attorney. The individual user beginning to provide solutions that DMS. Litera IRM and Seclore Rights is the hidden riptide that can pull a bring Digital Rights Management Management are integrating with firm into the sea of data breaches. (DRM) technology to law firms. We’ve major DMS players in the market. Each

The challenge with DRM has always been ease of use, both when sharing and collaborating on files.

You don’t see it, but it’s there, it’s seen DRM technology in consumer offers a different DRM engine, with dangerous, and it’s a killer. Sometimes products for years. It’s the reason you Litera leveraging Microsoft’s Azure the intent is malicious, but usually it’s couldn’t copy music from certain CDs Rights Management and Seclore with not. The results are the same, and they and why you could only use Keurig its own proprietary policy engine. can be costly. If confidential data leaves coffee pods in Keurig machines. Over DMS vendors may look to bring this the walls of the firm and gets into the past few years several technology technology within their systems as the wrong hands, the firm can suffer vendors have brought DRM to well to ensure security of firm work major losses to its data, reputation, and electronic documents and files. The product both inside and outside the finances. process works by essentially attaching confines of the DMS. the electronic equivalent of a physical Finally, with security audits and Security to the Rescue string to the document at all times, no assessments growing more and more There are several new technologies matter where the document lives, so demanding, some legal vendors and philosophies gaining steam in the you can always have a connection to are going right to the source and legal industry to meet the latest secu- the document. The string checks and designing their systems to meet the rity requirements. First is a shift from verifies that the person attempting to latest requirements of these audits. It an optimistic to a pessimistic security access the document has the proper started as encryption in transit, but has model. In other words, rather than permissions to do so. At any point, evolved to encryption at rest and now assuming that a document should be you can pull the string and take access encryption in use. NetDocuments, for publicly available to the entire firm away from the recipient. instance, has been spending time and by default, the security is instead The challenge with DRM has effort on meeting the demands of the granted on a “need-to-know” basis. always been ease of use, both when JP Morgan Outside Counsel Manual. The thought process behind this is sharing and collaborating on files. Once it does, it will be compliant with that the fewer documents exposed Without going out of the way, can an HIPAA, SEC and FINRA, SOC2 Type to the entire firm, the lower the risk attorney easily secure a document? Is it 2, and SOC 2+ regulations. The idea of content being shared inappropri- straightforward for the recipient to view is if it’s good enough for JP Morgan, it ately. While this may make it tougher or open a document? Vendors have should be good enough for law firms. for employees to find relevant docu- tried for years without much success. It’s a solid theory. ments, firms shouldn’t shy away from Some products required program Law firms need to see the next wave the “need-to-know” security model. wrappers around the file, meaning coming to avoid getting blindsided. As Keith Lipman notes in his July that the recipient had to install special By being proactive, firms can protect 2017 article Knowledge Management software to view and edit the file. themselves from malicious actors and in the Age of Need to Know Security,1 Others required viewing within a web from themselves. n firms can track additional metadata for browser only. Understandably, none the matter into a matter profile. With of these workflows have been deemed 1. 3 Geeks and a Law Blog, July 7, 2017, www. geeklawblog.com/2017/07/knowledge- information such as matter type, area acceptable in the legal workplace. management-in-age-of-need-to.html. of law, tags, deal/settlement amounts,

NYSBA Journal | October 2017 | 45 telawch tips practice management

What’s Hiding in Your Documents: The Dangers of Metadata By Nina Lukina and Eric Christiansen

ave you ever repurposed a nowadays they are created and trans- following the revelation was justifi- contract or other largely ferred exclusively using computers able; while metadata doesn’t reveal the Hboilerplate document by – legal documents. Metadata had a substance of a message or document changing some names, dates, and a long moment in the spotlight follow- (the data itself), it does give away a few other specifics? We’ve all done it, ing Edward Snowden’s revelations in surprising amount of sensitive infor- and that’s OK. It’s perfectly reasonable 2013 that the NSA was collecting the mation. This may include the current to avoid duplicating work. metadata of millions of citizens’ com- and previous author(s) of a document, The practice, however, carries hid- munications. The widespread concern timestamps showing when it was cre- den dangers that should make attorneys wary. The risks do not lie in the Eric Christiansen is a Solution Architect at Kraft Kennedy. He focuses on law firm IT infrastructure, clearly visible aspects of a document, with expertise in network monitoring and automation, datacenter design, disaster recovery, and but in its metadata. Documents, such office relocations. As a leader of the Managed Services Group, he is also deeply familiar with the as contracts and deals, which undergo applications most used by attorneys. various rounds of revisions, are also Nina Lukina is a Marketing Associate in the New York office of Kraft Kennedy. She researches and particularly susceptible. writes about emerging topics in technology. A former consultant at Kraft Kennedy, she’s worked on Metadata is data about data, and many IT strategy and information security projects for law firms. it is embedded in digital information like emails, SMS messages, and – since

46 | October 2017 | NYSBA Journal Business of Law ated and modified, and, perhaps most Scrubbing Tools product called Scrub, and PayneGroup worryingly, tracked changes and com- Several software solutions check legal sells Metadata Assistant for the meta- ments that you may have thought documents for metadata that should data-wary. you cleared before sending off your be wiped before sending. They offer While a specialized scrubbing tool work product to a client or opposing various levels of integration with is your best bet for removing meta- counsel. email applications like Outlook and data, there are also ways to be cautious Needless to say, this can result in document management systems like with what you already have. Consider embarrassment or, more seriously, a iManage and NetDocs. disabling or avoiding the “fast save” breach of confidentiality. Some e-filing Workshare and Litera offer similar function in Microsoft Word – that’s websites even show a warning that the metadata-scrubbing features and are the kind of save we perform by click- filer is responsible for scrubbing meta- probably the most popular tools among ing CTRL+S or on the plain floppy data prior to submission. law firms. These tools are designed disk icon as opposed to “Save As.” Some metadata, such as time- specifically for the legal industry. The This kind of save only registers the stamps, can be found by looking at latest versions run quietly alongside appended or changed information and the “properties” on a document. Most your email and document applica- leaves a map of edits behind. Certain hidden metadata can only be found tions, with minimal bothersome pop- versions of Office products also allow using special software, but it can also ups. They do have a different look and you to specify that certain metadata be exposed if a file is corrupted – and feel, and it would be worth trying a not be saved in the security settings. risk of corruption rises significantly demo of each to see which you prefer. As for PDFs, always save them in with repurposed documents – or not Litera allows attorneys to have the “locked” form in Adobe Acrobat converted properly. comprehensive control over document before sending. Don’t panic. This doesn’t mean that scrubbing at the cost of a few extra Keep in mind that metadata is you have to start every document from steps in their workflows. subject to discovery in litigation and scratch or revert to using paper. There Similarly, DocsCorp, which you sometimes needs to be preserved. The are precautions you can take using may know for its PDF document man- most important thing is to know when what you already have on your desk- agement, offers a popular solution to scrub and when to preserve it. n top as well as several products that called cleanDocs, which promises to cater to the need for metadata scrub- clean a 100-page document in under bing among attorneys. half-a-second. BigHand also offers a

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NYSBA Journal | October 2017 | 47 CONTRACTs By Peter Siviglia

Peter Siviglia ([email protected]) has practiced law in New York for more than 50 years, representing clients both domestic and foreign, public and private. He has served as special counsel to other firms on contract matters and negotiations. Peter is the author of Commercial Agreements – A Lawyer’s Guide to Drafting and Negotiating, Thomson Reuters, supplemented annually; Writing Contracts, a Distinct Discipline, Carolina Academic Press; Exercises in Commercial Transactions, Carolina Academic Press; Contracts and Negotiating for the Business Person, Carolina Academic Press; and numerous articles on writing contracts and other legal topics, many of which have appeared in this Journal.

Termination, Evergreen, and Severance Clauses and Some Warnings Les Préludes contracts. Instead of terminating the matically renew for successive peri- A. Your writing is your mind walk- contract, the contract should just ter- ods unless either party gives notice ing naked across the page. minate the arrangement or the rela- of termination. A typical clause B. What the wheel is to the world tionship: that is, terminate the license, might read as follows: of mechanics, grammar is to the the lease term, or the employment. This agreement will remain in world of writing – especially the Since the contract lives on, the strug- effect until _[X Date] , and it will writing of contracts. gle for survival perishes. continue thereafter for successive C. The task of transactional attor- Contracts that do terminate should 12‑month periods measured from neys is to place commercial litigators either (i) include a clause listing those _[X Date] and from each anni- on the endangered species list. provisions that survive termination, versary thereof unless and until or (ii) include in each provision that either party gives the other writ- Beware, though, that for certain types of contracts, New York imposes statutory limitations on evergreen or automatic renewal clauses.

A. Termination Clauses should survive, a clause stating it will ten notice of at least 90 days prior Often have I struggled with termi- survive termination of the contract. to _[X Date] or as the case may nation clauses. If the contract ter- Caution: In transactions involving be, prior to the end of the then minates, shouldn’t some provisions the sale of goods, § 2-309(3) of the current 12-month period, that this survive? Does the contract even need Uniform Commercial Code agreement will terminate on __[X a provision terminating it? (i) requires, in those situations in Date]__ or, as the case may be, at Typical provisions that should sur- which a party may terminate the the end of that 12-month period. vive termination of a contract are contract on notice, “reasonable” Beware, though, that for certain warranties and indemnities and those notice of termination except in types of contracts, New York imposes provisions dealing with confidential- the case of termination based on a statutory limitations on evergreen or ity, insurance, arbitration and submis- specified event; and automatic renewal clauses. In the case sion to jurisdiction. Some provisions, (ii) states that “an agreement dis- of leases of personal property and like non-compete clauses, because of pensing with notification [of ter- contracts for the service, maintenance their very nature, survive termina- mination] is invalid if its opera- or repair of real or personal prop- tion. tion would be unconscionable.” erty, §§ 5-901 and 5-903 of the General There are some contracts, though, Obligations Law require the lessor that need not – and should not – be B. Evergreen Clauses or the person providing the service terminated. Examples are licenses, An evergreen clause provides that to notify the other party of its right leases, and, yes, even employment the term of the contract will auto- to terminate. These sections must be

48 | October 2017 | NYSBA Journal (15) days after the Company examined carefully in order to com- Employee’s employment notifies the Employee of the ply properly with their requirements. with another company. same. Failure to do so will void the renewal “Proper cause” means any An affiliate is any corpora- clause. of the following: (A) misap- propriation of any asset or tion, partnership or other C. Severance Clauses opportunity of the Company entity that controls, is under common control with, or is Severance clauses do fall within the or any affiliate of the Com- controlled by the Company. realm of termination. So below is a pany or any other act of self Control means the ability, model for a severance arrangement dealing or a breach of a fidu- either directly or through one that I have used in employment ciary duty to the Company or or more entities, to control or contracts, primarily for executives, any affiliate of the Company; determine the management when the employer has the right (B) an act of fraud, embezzle- of any corporation, partner- to terminate the contract without ment or bribery; (C) [consider: ship or other entity, whether cause. It contains a comprehensive gross] negligence, wilful mis- by election of those members definition of “proper cause” and conduct or any other act that, who can determine the deci- definitions of some other terms that in each case, has or is reason- sions of the board of direc- may be useful in other contexts. ably likely to have [consider: tors or other governing body If the Company terminates the an adverse effect // a material or by any other means. Employee’s employment for any adverse effect] on the business The provisions of this Sec- reason other than “proper cause” or reputation of the Com- tion are in lieu of any claim (as defined below), pany or any affiliate of the the Employee might have 1.1.1 the Company will Company; (D) indictment for by reason of the Company’s pay the Employee the sal- any felony; (E) demonstrated terminating the Employee’s ary to which the Employee evidence of unlawful harass- employment without proper is entitled at the time of ter- ment or any other unlaw- cause other than the Employ- mination until the first of ful misconduct regarding ee’s rights to [specify any the following to occur: (A) the Company or any affili- exceptions such as reimburse- the expiration of one (1) year ate of the Company or any ment of expenses and accrued from the date of termination, employee of the Company or deferred compensation]. or (B) the date the Employ- of any affiliate of the Com- ee’s employment was sched- pany; or (F) any [consider: uled to terminate under this material] breach of this agree- D. Conclusion agreement, or (C) the comment and, if the same is capa- As my good friend, Porky Pig, would mencement of the Employ- ble of being cured, failure to say: “Th . . . , th . . . , that’s all, folks.” ee’s employment with anoth- cure the same within fifteen er company; and 1.1.2 if the Employee elects COBRA, the Compa- ny will pay the Employee’s cost of the COBRA coverage [consider: less the amount of the employee contribution to the cost of such insurance] until the first of the following to occur: (A) the expiration of one (1) year from the date of termination, or (B) the date the Employee’s employment was scheduled to terminate under this agreement, or (C) the commencement of the Employee’s employment with another company. The Employee will promptly notify the Company of the commencement of the

NYSBA Journal | October 2017 | 49 Attorney Professionalism Forum

Dear Forum: the agent? If an agent does review my ibly removing passengers from air- On my return home from a summer devices and confidential or sensitive planes, and even the removal of shoes. vacation, I almost had a panic attack client information, what are my ethical These measures, however, generally standing in line at U.S. Customs. The responsibilities to my client? Does it address concerns over immediate person in front of me was carrying matter if I have sensitive or confiden- physical threats during travel or ille- a laptop with a flash drive and the tial information from a potential client gal physical activities such as drug customs agent instructed him to turn that has not yet retained me? What if trafficking and terrorist attacks. Your the laptop on, plug in the flash drive, the same issue arises with a customs situation appears to be focused more and open certain documents on it. My agent from another country? Is there on data suggesting to us that this bor- laptop was in my bag hanging over anything I should do to my devices the der investigation may not have been my shoulder. I started thinking about next time I travel abroad to prevent focused on an immediate physical what was on my laptop. I had been disclosure of client information? threat. While we have no way of know- reviewing documents on a very sen- Very truly yours, ing what information this border agent sitive deal between two well-known Justin Cancun was seeking or what immediate threat public companies that I am sure my he was working to thwart, scanning client does not want anyone to know Dear Justin: an individual’s documents on com- about. I am very careful about cyber- Most attorneys are aware of the con- puters in routine searches is invasive security and the laptop required two- stant threat of cyberattacks and the and should cause great concern to all factor authentication to access any potential harm to clients that can attorneys traveling with their client’s documents. But this border agent result from hackers gaining access sensitive or confidential information. was directing the person to enter a to sensitive information. We have The New York City Bar Association password and show him information previously written about the use of (NYCBA) Committee on Professional on the computer with a number of Wi-Fi hot spots and have cautioned and Judicial Ethics recently addressed people in the immediate vicinity who the bar about the need to protect many of the issues that attorneys face could see the screen. Fortunately, I client confidentiality when using in connection with international travel went through the checkpoint without smartphones and similar devices in in Formal Opinion 2017-5. Under its having to even turn on my computer. public spaces, including airplanes. policies, agents of U.S. Customs and But I travel frequently and I always See Vincent J. Syracuse and Matthew Border Protection (CBP) are permitted bring my laptop with me. I know that J. Maron, Attorney Professionalism a number of the attorneys at my firm Forum, N.Y. St. B.J., May 2013, Vol. The Attorney Professionalism Committee regularly travel abroad and many of 85, No. 4. More recently, we looked at invites our readers to send in comments them take their laptops and phones the issue from another angle, empha- or alternate views to the responses with them. I am now very concerned sizing the need to be vigilant about printed below, as well as additional about even carrying my laptop to the protecting client data and identifying hypothetical fact patterns or scenarios to airport. attorney’s best cybersecurity practices be considered for future columns. Send Under what circumstances can that will help minimize these threats. your comments or questions to: NYSBA, a customs agent demand to search See Vincent J. Syracuse, Maryann C. One Elk Street, Albany, NY 12207, Attn: through a passenger’s electronic Stallone, Richard W. Trotter, Carl F. Attorney Professionalism Forum, or by devices? Are there any limitations for Regelmann, Attorney Professionalism email to [email protected]. what the customs agent can and can’t Forum, N.Y. St. B.J., June 2017, Vol. This column is made possible through search? Can they make copies of mate- 89, No. 6. But your inquiry creates a the efforts of the NYSBA’s Committee on rials on my devices? Are there excep- whole new conundrum: An American Attorney Professionalism. Fact patterns, tions for attorneys who are carrying government official may be demand- names, characters and locations presented devices with sensitive or confidential ing that you remove the very cyberse- in this column are fictitious, and any resem- client information? If an agent directs curity barriers you created to prevent blance to actual events or to actual persons, me to show them client information, an invasion of your client’s confiden- living or dead, is entirely coincidental. These should I explain to the agent that I tial information. We understand your columns are intended to stimulate thought am an attorney and carrying sensitive concern and near panic attack. and discussion on the subject of attorney information that I cannot disclose? The inherent conflict between professionalism. The views expressed are If the agent insists on viewing the national security and an individual’s those of the authors, and not those of the information despite my protests, is civil rights during air travel is not new. Attorney Professionalism Committee or there anything else I can do? Am I vio- For years, there has been a vigorous the NYSBA. They are not official opinions lating any ethics rules by following the debate about the need and legality of on ethical or professional matters, nor directions of the agent? Am I breaking numerous airport security measures should they be cited as such. any laws by refusing to comply with including scanners, pat downs, forc-

50 | October 2017 | NYSBA Journal to search electronic devices at the U.S. tected by the attorney-client or attor- the event a certain agent is unfamiliar border when travelers enter or leave ney work-product privileges: with these guidelines. the United States including the infor- If an Officer suspects that the According to the Acting Commis- mation that is physically stored on the content of such a material may sioner of CBP, the CBP’s authority to devices. NYCBA Comm. on Prof’l & constitute evidence of a crime or conduct border searches is limited to Jud. Ethics, Op. 2017-5 at 2 (2017). This otherwise pertain to a determi- information physically residing on a includes searching emails, text messag- nation within the jurisdiction of device and does not extend to infor- es and electronically stored documents CBP, the Officer must seek advice mation located solely on remote serv- on devices carried by travelers. Id. from the CBP Associate/Assistant ers. See June 20, 2017 Due Diligence According to its policies, CBP agents Chief Counsel before conducting a Questions for Kevin McAleenan, Nominee may demand disclosure of social media search of the material, and this con- for Commissioner of U.S. Customs and and email account passwords and sultation shall be noted in appro- Border Protection (CBP) at 3, http:// seize devices during an inspection and priate CBP systems of records. CBP msnbcmedia.msn.com/i/MSNBC/ they are not required to have a reason- counsel will coordinate with the Sections/NEWS/170712-cpb-wyden- able suspicion to do so. Id. Although U.S. Attorney’s Office as appropri- letter.pdf. The Acting Commissioner the extent of such searches have been ate. also stated that “CBP does not condi- legally challenged and depends on CBP Directive No. 3340-049 § 5.2.1. tion entry of U.S. citizens based on the circumstances, a number of federal This directive also requires that CBP provision of a password, and has not courts have held that reasonable suspi- agents “encountering business or denied entry into the United States to cion is not needed for customs officials commercial information in electronic any U.S. citizen because of a refusal to search a laptop or other electronic devices shall treat such information by such person to provide a password device at the international border. See as business confidential information that would unlock their accompanying Robert T. Givens, The Danger of U.S. and shall protect that information from electronic device.” Id. at 5. It is noted, Customs Searches for Returning Law- unauthorized disclosure.” CBP Direc- however, that CBP Directive No. 3340- yers, 30 GPSolo 3 (ABA 2013); United tive No. 3340-049 § 5.2.3. Any privi- 049 does not explicitly prohibit search- States v. Levy, 803 F.3d 120, 122 (2d Cir. leged or sensitive information obtained ing remote servers or prohibit denying 2015) (holding “[w]hen the evidence at in a search may only be shared with entry for refusal to provide passwords. issue derives from a border search, we federal agencies that have mechanisms In any event, it may be advisable to recognize the Federal Government’s in place to protect such information store and access highly confidential broad plenary powers to conduct so- under this directive. CBP Directive No. client information through your firm’s called ‘routine’ searches at the border 3340-049 § 5.2.4. A CBP agent may only remote server, rather than saving doc- even without ‘reasonable suspicion seize and retain an electronic device, or uments to any local drives and email that the prospective entrant has com- copies of information from the device, accounts or storing data on your por- mitted a crime.’”) (citations omitted); if “they determine that there is prob- table electronic devices. United States v. Arnold, 533 F.3d 1003, able cause to believe that the device, or Under New York’s Rules of Pro- 1009 (9th Cir. 2008). This suggests that copy of the contents thereof, contains fessional Conduct (RPC), you have CBP agents can search an electronic evidence of or is the fruit of a crime a duty to protect your client’s confi- device of any traveler at random in that CBP is authorized to enforce.” dential information. As the NYCBA their efforts to protect the borders and CBP Directive No. 3340-049 § 5.4.1.1. Committee on Professional and Judi- fulfill their customs, agriculture, and In other words, by the terms of its cial Ethics recently opined in NYCBA counterterrorism missions. own internal guidelines, the agents’ Formal Opinion 2017-5, this obligation In 2009, the CBP issued CBP Direc- authority to review information on applies while traveling abroad and tive No. 3340-049, Border Search of electronic devices is broad even when carrying confidential client informa- Electronic Devices Containing Informa- an attorney specifically identifies that tion and potentially undergoing a bor- tion, which includes its guidelines such information is protected or sensi- der search. Under RPC 1.6(c), which for searching, reviewing, and retain- tive. It is likely that these policies may was recently amended, attorneys must ing information obtained from border be applied differently from agent to “make reasonable efforts to prevent the searches of electronic devices. (CBP agent. Further, it is possible that differ- inadvertent or unauthorized disclo- Directive No. 3340-049, https://www. ent CBP commissioners or administra- sure or use of, or unauthorized access dhs.gov/xlibrary/assets/cbp_direc- tive officials may have more expansive to,” confidential information obtained tive_3340-049.pdf). This directive or restrictive interpretations of these from prospective, current, and former includes a section addressing a CBP guidelines or revise the guidelines. It clients. RPC 1.6(c). This obligation is agent’s special procedures for han- certainly would not hurt to carry this also implicit in the duty of competence dling information claimed to be pro- directive with you when traveling in under RPC 1.1. See NYCBA Formal Opinion 2017-5 at 4, citing ABA Formal

NYSBA Journal | October 2017 | 51 Op. 11-459 (Aug. 4, 2011). Comment to RPC 1.6 is instructive in a border to which you will be traveling to deter- 8 to RPC 1.1 specifically notes that search situation: “Absent informed mine the scope of materials that other in order “[t]o maintain the requisite consent of the client to comply with country’s border agents may search in knowledge and skill, a lawyer should . the order, the lawyer should assert accordance with their own laws. In the . . keep abreast of the benefits and risks on behalf of the client nonfrivolous event that your device is searched or associated with technology the lawyer arguments that the order is not autho- seized at the border, you have an obli- uses to provide services to clients or to rized by law, the information sought gation to promptly inform your clients, store or transmit confidential informa- is protected against disclosure by an past clients, and potential clients of tion.” RPC 1.1 Comment [8]; see New applicable privilege or other law, or the the information which the agent may York County Lawyers Association Pro- order is invalid or defective for some have accessed. The RPC require that fessional Ethics Committee, Formal other reason.” Rule 1.6 Comment [13]; an attorney promptly inform the client Op. 749 (2017) (“[a] lawyer’s compe- see NYCBA Ethics Op. 2017-5 at 8–9. of “any decision or circumstance with tence with respect to litigation requires Attorneys are not, however, required respect to which the client’s informed that the lawyer possesses a sufficient to risk violating their own legal or consent . . . is required by these Rules” understanding of issues relating to ethical obligations in seeking to chal- and to “keep the client reasonably securing, transmitting, and producing lenge a law on behalf of their client. informed about the status of the mat- [electronically stored information]. . . . See NYSBA Comm. on Prof’l Ethics ter.” RPC 1.4(a)(1)(i) and 1.4(a)(3); If a lawyer is unable to satisfy the duty Op. 945 (2012) (indicating that “when NYCBA Ethics Op. 2017-5 at 11. Com- of technological competence associ- the law governing potential disclosure ment 13 to RPC 1.6 also suggests that ated with a matter, the lawyer should is unclear, a lawyer need not risk vio- in the event of an adverse ruling after decline the representation.”). “The lating a legal or ethical obligation, but an attorney challenges the disclosure duty to protect client confidences from may disclose client confidences to the of confidential information, “the law- ‘unauthorized access’ refers to access extent the lawyer reasonably believes yer must consult with the client to that is not authorized by the client.” it is necessary to do so to comply the extent required by Rule 1.4 about NYCBA Ethics Op. 2017-5 at 4, citing with the relevant law, even if the legal the possibility of an appeal or further RPC 1.6 Comments [5] & [13]. Wheth- obligation is not free from doubt”); challenge . . . .” RPC 1.6 Comment er an attorney is making “reasonable NYCBA Ethics Op. 2017-5 at 9. [13]; NYCBA Ethics Op. 2017-5 at 11. efforts” to prevent unauthorized dis- The NYCBA Committee on Profes- Although informing your clients of the closure will inherently depend on the sional and Judicial Ethics has said that disclosure may be difficult, this will facts and the situation. Comment 16 “Rule 1.6(b)(6) permits an attorney to allow the clients to determine the best to RPC 1.6, however, includes a non- comply with a border agent’s demand, methods to prevent any possible dam- exclusive list of factors to consider under a claim of lawful authority, for age from the disclosure. See NYCBA when making such a determination: an electronic device containing confi- Ethics Opinion 2017-5 at 11. (i) the sensitivity of the informa- dential information during a border So in the face of all of these rules, tion; search.” NYCBA Ethics Op. 2017-5 at what should lawyers do to best protect (ii) the likelihood of disclosure if 9. We agree with that opinion, and like- their client’s confidences? As an initial additional safeguards are not wise agree with their opinion that to matter, lawyers traveling internation- employed; be in compliance with this provision, ally with electronic devices should (iii) the cost of employing additional attorneys must first take reasonable be mindful of Comment 16 to RPC safeguards; efforts to “dissuade border agents from 1.6 and the various factors discussed (iv) the difficulty of implementing reviewing clients’ confidential infor- above when determining what level the safeguards; and mation or to persuade them to limit the of protection is reasonably necessary (v) the extent to which the safe- extent of their review” by informing the to protect a client’s confidential infor- guards adversely affect the law- agent that they are attorneys, request- mation. If you are working on very yer’s ability to represent clients ing that the devices not be searched sensitive deals between well-known (e.g., by making a device or soft- or copied because the devices contain public companies, the first factor of ware excessively difficult to use). confidential or privileged information, RPC 1.6 Comment 16 suggests that you RPC 1.6 Comment [16]. and asking to speak to a superior offi- should be taking the strongest pos- There is an exception to these rules cer if these requests are denied. See sible efforts to ensure that confidential which permits attorneys to disclose a id. at 10. It is advisable to carry attor- information is not accessible in a rou- client’s confidential information in cer- ney identification with you when you tine border search. RPC 1.6 Comment tain limited circumstances. RPC 1.6(b) travel abroad and be familiar with [16]. In addition to encrypting devices (6) permits an attorney to reveal con- the CBP’s authority and procedures with passwords as a basic precaution, fidential information when required including CBP Directive No. 3340-049. some other methods to protect con- “to comply with other law or court In addition, you should familiarize fidential information include using a order.” RPC 1.6(b)(6). Comment 13 yourself with the laws of the country blank “burner” phone or laptop and

52 | October 2017 | NYSBA Journal then only accessing confidential infor- pen given my client’s personality and represent this client, and am relieved mation remotely from secured online the nature of the dispute, I was still as counsel, do I have to tell his next locations. See NYCBA Ethics Op. 2017- shocked. I always assumed that his attorney of his apparent intention to 5 at 7–8. To ensure that confidential brash statements and frequent out- lie during his deposition? On the off information does not inadvertently get bursts were a product of his frustra- chance that the client does allow me to copied to the phone or laptop, software tion with the whole case. I reminded withdraw as counsel, if he decides to designed to securely delete informa- the client that he would be testifying represent himself as a pro se litigant, tion may be placed on the device, cloud under oath during his deposition and do I still have an obligation to inform service syncing should be turned off, warned him of the risks of perjury, the court of his intent to lie under oath? web-based services should be signed but he was unfazed. He intends to go Another issue involving this trou- out, and applications that provide local forward with his “strategy” during blesome client is also looming on the or remote access to confidential infor- his deposition, and I’m not sure what horizon. In the event that I am relieved mation should be uninstalled prior to to do. I know the client will decline as counsel, I’m certain that he will be crossing the border. Id. at 7. Lawyers any request I make to be relieved furious with me. On prior occasions, should also avoid using removable because it will be expensive for him he’s been slow to pay his legal bills storage devices to carry sensitive infor- to get a new attorney up to speed on and has dissected many of my time mation and downloading the informa- this matter. entries, asking questions about every tion they wish to protect on to a hard We have a status conference com- little task. I’m actually still waiting on drive. Like it or not, if you are not sure ing up before the court-appointed ref- him to pay his most recent bill, and how to implement these measures on eree, and I’m considering moving to be I’m concerned that I’m not going to get your devices, and find it necessary to relieved before the conference. Can I paid after he finds out that I’ve made travel with highly sensitive confiden- move to be relieved instead of notify- a motion to be relieved. If I do have tial information, it may be advisable to ing the court of the client’s intent to lie to bring an action against this client contact a technology security consul- at the deposition? If I am not relieved to collect my fees, to what extent am tant before you leave. before the conference, do I have an I obligated to maintain attorney-client Sincerely, obligation to tell the court referee confidentiality especially in light of my The Forum by what he said during our prep session reason for seeking to be relieved? Vincent J. Syracuse, Esq. even though my client hasn’t actually Very truly yours, ([email protected]) committed perjury yet? What about I. M. Forthright n Maryann C. Stallone, Esq. opposing counsel? If I am obligated to ([email protected]) and inform the court referee and/or oppos- Carl F. Regelmann, Esq. ing counsel, are there any particular ([email protected]) precautions I should take in order to Tannenbaum Helpern Syracuse & safeguard my client’s rights? In the Hirschtritt LLP event that I can no longer ethically

QUESTION FOR THE NEXT ATTORNEY PROFESSIONALISM FORUM: I’m currently representing a client whose honesty (or lack thereof) is State Bar and Foundation Seek Donations becoming a problem. The litigation involves a dispute between siblings to Help Hurricane Victims Obtain Legal Aid regarding a family business and, like The State Bar Association and The New York Bar Foundation are seeking donations to a many familial disputes, is highly con- relief fund for victims of recent Hurricanes who need legal assistance. tentious. I’ve always had a suspicion As the flood waters recede, residents will face numerous legal issues including dealing that given the opportunity, my client with lost documents, insurance questions, consumer protection issues and applying for might try to pull something to get federal disaster relief funds. a leg-up on his siblings, but there Nonprofit legal services providers will be inundated with calls for help. haven’t been any specific incidents Tax-deductible donations may be sent to The New York Bar Foundation, 1 Elk Street, Albany, NY, 12207. Checks should be made with the notation, “Disaster Relief that alarmed me until now. While Fund.” Donors also can contribute by visiting www.tnybf.org/donation/ click on preparing him for his deposition restricted fund, then Disaster Relief Fund. recently, the client all but told me that he intends to lie when asked a particular question by opposing counsel. Although I had my suspicions that something like this might hap-

NYSBA Journal | October 2017 | 53 New Members Welcomed

First District Zaraya Jessie Wade Simon Mosely Wechsler Suleman Malik Out of State Yusef Ghassan Abutouq Zachary Maxx Weisberg Michael Webb Weinberg Caitlin Eileen McPhillips Jason Alguram Megan Kathleen Arrogante Japaira Sharron Williams Nicole Lyn Montrony Khaled Alrabe Third District Carolina Tak Gy Azevedo Michael Zhang Kyle T. Murphy Joza Abdulmuhsin Alrasheed Nicholas M. Campbell Leung John J. Zidziunas Andrea Wing Shum Ng Shawn James Anderson Alex David Karman Hailey Alexandra Bair Maximilian Riege Elizabeth Michelle Andes Second District Tony Stark John Richard Balaes Ariana Petra Rivera Andrew Thomas Apjohn Crystal Abreu Louis George Vuksanaj Garrett B. Baldwin Alexander Jordanselwyn Julien Pierre Apollon Alexis Charlotte Andiman Taylor Lorraine Ball Fourth District Rosenblum Nicolo Ascione Sedi Gerald Asem Arielle Lena Bardzell Anthony J. Santoro John Mark Sciandra Bing Bai Michael John Bisceglia Demi Lorant Bostian Shaunak Sanjay Shah Alessandra Anna Baldini Sarah M. Bouskila Fifth District Polina Brandis Adam B. Shamah Pamela Beryl Bankert Justin Michael Bova Herve Yves Comeau Weiyang Chen Jared Charles Sherman Zhenzhen Bao Robert Bragagnolo Danna Sawalha Ava Louise Childers Ashley Jayne Stapleton Rowennakete Paul Barnes Andrew R. Bridgman Roy Edward Chon Sixth District Lindsey Ann Stearns Thomas Lewis Barnes Kristen Aleen Burzynski Meghan Chambers Cleary Margaret Jane Ambrose Frank J. Tantone Christopher Keith Baxter Celina Eden Caban Elizabeth Satomi Allen Cossi Carrie Lynn Dougherty Kirandeep Kaur Toor Jeremy Martin Bellaloum Alejandra Louisa Caraballo Rafael Thor De Moura Rebelo Casey Lynne Tripoli Haim Benoliel Vincent Anthony Cesare Seventh District Rocha Eduardo Miguel Villacorta Andrew Chaim Bershtein Dana May Christensen Lisa Feitell Joseph R. DeMatteo Lazo Davide Bertolini Ishan Dave Brittany Rose Gawlak Caitlin Chelsea Fahey Jeannette Villeda Theresa Johnson Bichsel Sarah David Heydemann Tg Raul Falcon Eighth District Marie Elizabeth Villefranche John Andrew Birdsall Frances Andrea Davila James M. Felix Soo-young Chang Christopher Lawrence Pedro De Castro Segalerva Eleventh District Lelise Amanuel Gobena Kimberly N. Gray Birkheimer Deborah A. Dowling Paul Arnold Andersen Darryl R. Graham Amanda Christine Mooney Alan Jay Black Alison Nicole Drager-Putnam Danielle Nicole Carroll Nicole Antoinette Groves Amy Patricia Walters John August Boeglin Uchechi Angel Egeonuigwe Chase Austin Cero Melida Narcisa Hodgson Edward H. White Eugene Roger Boffa Kelsey Feehan Angele Nicole Chapman Elizabeth Jane Magwood Mark Aaron Borenstein Deanna Rose Flaherty Ninth District Taylor Higgins Chapman Hood Beatrice Botti Salim Fouerte Jessica A. Amberg Samuel Seob Choi Julie Y. Huh Juan Carlos Boue Daniel Antonio Galindo Robert D. Bean Andrew Chung Erin Marie Iannotti Jillian Nicole Bray Jacqueline Theresa Genovese Erin Dobbins Andrew Davidow William F. John Maxime Breton Vincent Sharmalee Gordon Ciena-marie Evasco Melissa Ann Grippa Matthew Johnson MaryKate L. Brigham Lonnie Hart Vittoria A. Fiorenza Mateen Hashmat Matthew Chang Kim Dustin Matthew Brooks Daniel Maor Hochbaum Fredric Bruce Goodman Daniel Santiago Irizarry Paul Jihyuk Kim Michael Alan Brown Jacqueline Elizabeth Horani Michelle Annette Greaux Marium Khawaja Emily Hannah Kornfeld Adjckwc O. Browne Rahma Abdulmejid Hussein Susan Stuckert Grover Jennifer Kim Rachel Victoria Kramer Pauline Bui Kaitlyn Reyne Kacsuta Joseph P. Gryzlo Grace W. Ku Samir Kurani Marion Conneen Burke Renata Ladizinski James Michael Jones Jun Lang Brittany Kate Lazzaro Katharine Joyce Burmeister Eric R. Lopez Eric M. Kim Joyce May Ma Jiarui Li William Charles Burnham Jacob Daniel Loup Bradley E. Landau Eunon Jason Mizrahi Stephanie Sng Lim Andrew Mark Butler Aqsa Mahmud Eve Irene Lincoln Tina O’Neale Manuel S. Lopez Fonseca Adam Elliott Butt Anthony Epifanio Maneiro Lara Liotti Afolake Oluwadamilola Kristen Elizabeth Marinaccio Minghui Cai Nicole Elizabeth Mannello April Akeba Mckenzie Obawunmi John Andrew McCarthy Lia Jude Calabro Stacy Small Mazzara Donna M. Mulato Lauren M. Porretta Celinda Metro Pierre Calderan Meetra Hope Mehdizadeh Michael Sungpyo Oh Amanda Ann Potter Susan E. Miller Grady Reeder Campion Nikita Mehta Alex T. Orchowski Sara R. Qahoush Dawud Atiba Nelson Erika Lidu Canchola Jessica Nicole Meyers Veronica Anne Phillips Felipa Quiroz James Maximillian Nilles Emma Natalia Cano-Rossell Christopher J. Mikesh Stephanie Lynne Pratt Qian Rong Ko Woon Angela Oh Maria Chiara Cardi Mariya Naulo Giuliana Eva Trivella Priyadarshni Kaul Sapru James Youngmin Park Rodrigo Oliveira Passo Bianca Chantal Olliver Andrew Charles White Benjamin Jacob Schachter Alexander B. Porter Castello Branco Leah Nicole Perry Catherine Irene Seibel Allisha Amber Prabhakar Tenth District Daniel Andres Castro Latrice M. Phillips Naomi P. Singh Timothy Pryor William Eric Andersen Rodriguez Ian Hovey Qua Roshnee Srikishun Whitney D. Pryor Ashish M. Bakshi Christine Kathleen Castro Taaj M. Reaves Sukhnandan Michael Patrick Raymond Kyle Ross Barton Risa Michele Chalfin William P. Reily Christopher Anthony Ujkic Brian Alan Richman Matthew Hayes Bernstein Zachary Sebastien Gabriel Maisie Nicole Rubinstein Kevin Shi Yi Wang James Rieger Daniel E. Brickley Chaltiel Hannah Elizabeth Rosie Wang Sydney Brie Schaub Gina Ann Burke In Hoi Chan Samendinger Duane Oliver Warner Benjamin Cameron Amanda M. Dadiego Yi-ping Chang Eric Saparli Alan Wong Schladenhauffen Brittany Anne Deprimo George Khalil Chebat Christopher Robert Scavone Steven D. Schneider Anthony J. Dichiara Twelfth District Yiming Chen Harry G. Shlyonsky Randolph Jacob Shaner Terrance Joseph Dougherty Samantha Ann Fix Shaoming Cheng Humzah Khan Soofi James Dickerman Small Roland Patrick Driscoll Karen Ann Takach Smetna Kaur Chhabra Samuel Ford Steinbock Samuel C. Tarasowsky Ari Seth Gatoff Thirteenth District Krystal Ijeoma Chigbu Heather Sherry Stiell Alena Qing Thomas Michael William Greubel Deema Azizi So Yoon Choi Holly Stubbs Ryan Richard Thoreson Yelena Gurgova Esther Tina Fernando Sylvia Yuehyi Chou Desiree La’chey Talley Brittany Lauren Tran Janaya Shemariah Kerben Tiffany Lola Maldonado Guillermo Santiago Sandra Udis Mark Thomas Vessio Tyler Crowley King Jose Miguel Ortiz Christensen Elena M. Vespoli Robert William Vogel Trevaughn Aton Luncheon Stephen E. Schwarz Sabin Chung Stephen A. Walsh Tommy Hai Vu Aaron J. Lund Vincent Joseph Valerio Cody Richard Churchill Alison Kelly Ward

54 | Month 2017 | NYSBA Journal Kerwin Esmond Clarke Robert Grohmann Joshua Andrew Smith Labat Damien Anthony O’Connor Omar S. Sherif Jordyn Anne Coad Wenxin Gu Kyle Henry Lachmund John M. O’Connor Huali Shi Brendan Collins Barry Scott Guaglardi Vivian Chuan Pi Lai Ruairi James O’Kane Yoonsun Shim Margaux Compagnon Paul Saxon Guerriere Hiu Mei Lam Erin C. O’Leary Scott Franklin Siegel Caitlin Cameron Conklin Sabina Gulmaliyeva Lysette Les Lam Janita Renee Obie Bradley Geoff Silverman Stephen Edward Connolly Jiarui Guo Maria Luis Landry David Michael Offutt Priyanka Singh Cornelius William Michael Stephan Hacker Fernando Javier Langa Resek David Offutt Aditya Singhal Cornelssen Anael Hadji Jacqueline C. Lash Miyoun Oh Deirdre Chance Smith Dominic John Corsello Thomas John Haley Jay Lavroff Tony M. Oh Marc Smith Hunter Samuel Cox Kevin Lawrence Hall Nancy Lem Abisola Adebola Olaleye Joseph Son Sarah J. Crouch Joseph Walter Hammell Jason M. Lesnevec Robert Joseph Olejar George S. Soussou Sandra Marcela Cuello Diaz Lulu Han Finnegan Meiji Leung Abiemwense Doreen Peter R. Spirgel Shiwan Cui Brian Andrew Hardingham Jared K. Levy Onaghise Chad Christopher Squitieri Kathleen Belle Cullum Jane L. Harness Steven Andrew Levy Shane Doherty Overgaard David J. Stein Timothy Johnson Owen Arthur Harnett Ericka Lezcano Brad Christopher Paladini Waddy Edward Stephenson Cunningham Charles Edward Harris Daxin Li Yorgos Papadopoulos Aaron Ward Stewart Francesca Maria Richard Lee Harrison Zhenying Li Gustavo Matias Papeschi Karen Annette Stewart D’alessandro Cishek Tara Michaell Hartman Jing Lin Jiou Park Stephanie Lena Stich Laura Elizabeth Dallago Zaid Ghassan Hatoum Elizabeth Newton Loftus Jiseong Park Steven Andrew Stoehr Laura Ashley Darosa Taylor Elizabeth Hawes- Francisco Lombardi Jong Woo Park Daniel M. Stone Scott Andrew Davidson Pacheco Hsiao-fan Lu Pooja Dilip Patel Regina Veronica Strait Jorge Braulio De Cardenas Ran He Yanping Lu Rahul Kirit Patel Yuchuan Sun Pristine Busarang De Jon Erik Heath Yong Luan Eleftheria Patsialidi Anri Suzuki Guzman Conor John Hennessey Kwok Ching Athena Lui Jeffrey D. Pawlitz Junya Suzuki Michael Anthony Demarco Megan Elizabeth Barton Xiao Ma Tasha Kae Pepper-Dickinson Kumi Tabata Gabrielle Lorber Denby Henry James Ruairi Macdonald Woody N. Peterson Jie Tan Robb Allen Denney David Philip Herrick Molly Rose Madonia Kelly E. Petter Karima Tawfik Stephanie Desjardins Michael Anthony Herrin Zubaida Mahmoud Mark Allen Phillips Jakub Telicka Leigh Anne Difilippo Kylie Spangler Herring Lise Sandrine Mandeng Christopher John Philpott Mark Peter Terry Paul Michael Dix Doron Oren Hindin Gerard Vito Mantese Arnold Paul Picinich Svjetlana Tesic Luke C. Dixon Alexander Michael Steven David Marcus Adam Joseph Pike Michael A. Thomas Xiaowen Dong Hokenson Adam Zeldes Margulies Alexis Marie Jean Poisson Samuel Leonard Titelman Patrick Joseph Driscoll Maxwell William Horowitz Joseph R. Marion Jared W. Poplin Theodore A. Topouzis Reine Elizabeth Duffy Letoyia Charmain Horton Thomas Martial Neelima Potireddy Michael Trentin Francois Onel Ecclesiaste Kevin David Horvitz Sasha Mascarenhas Tetiana Poudel Kosuke Tsunashima Douglas Newcombe Eden Eunmi Hwang Paul David McCarthy Jacob J. Rabinowich Sean Spohn Twomey Thomas James Eisweirth Hironori Iwatani Daniel Alexander McGrath Reem Radhi Brian Mitchell Ukman Marissa Beth Ellerin-Bossley Anthony Robert Jackson Michael P. McNamara Hamid R. Rafatjoo Jennifer Ann Urban Orel Claude Rene Engelbach Ilana Sari Jacobs Duncan George Edward Nashrah Rahman Atsushi Usui Craig R. Enochs Majesty Eve Lagrada Jala Melville Norma Ramirez-Francullo Christian Thomas Valeriano Adam Luigi Falconi Brandon Chaison Janes Anne-lise Lea Menage Anna Maria Rataj Jason Patrick Walton Kate Alexandra Faulkner Mark Alexander Jansen Pascual Mendez Herbruger Yevgeniya Ratskovskaya Zeng Wan Jessica Mariella Feghali David Joseph Jarzabek Cintron Dorothea Reinert Vivian Washington Dake Fei Gianina Carlie Jean-Baptiste Elodie Myrtha Monique Dorothea Ruth Reinert Valerie Lisa Weiss Todd Michael Feldman Dennis Lyle Jenkins Mertz William Rempel Patrick L. Wells Ryan Nestor Fernandez Matthew C. Jones Caitlin Jean Miller Maximilian Rich Ningning Weng Flavia Ferreira Thomas B. Jones Jacob Miller Spencer Alvin Richards Melanie Crowe Wheeler Ryan Fiedler Hyungmin Joo Jack Lawrence Millman Kelly Christina Richardson Karina Emilie Wiechert Cary L. Flitter Michael Joseph Jordan Takashi Mochizuki Kendal Ashton Rinko Jeffrey Laurence Willian Ryan Louis Foley Emma Alice Eleanor Julian Anupa Sarah Mohan Miguel Negeliskii Risch Jessica Taylor Winn Elena Anastasia Sacha Joshua Franklin Kahn Natalie Elizabeth Montaque Javier Jose Rivera Alvarado Andrew Stan Wong Francis Charles H.N. Kallenbach Mark Ross Moore Eduardo J. Rivera-Julka Ge Wu Hayley Holeman Fritchie Aleksandra Kaplun Juan Pablo Moreno Virna Rizzo Ruoxi Wu Daniel Terrence Gaffney Susannah Kristine Keagle Juan Pablo Moya Hoyos Nikkiyah Jere Roberts Lisa Charlotta Wyrsch Christina Maria Galarza Kyle A. Kemper Malgorzata Mrzyk Meredith Kathryn Rockhill Runyuan Xing Elena Gammardella Lindsay Hastert Kennedy Louis Ivan Christopher Francisco A. Rodriguez Shuang Xu Shan Gao Angela Carol Kerins Mussman Estiven Rojo Xiaoyu Xu Shang Gao Matthew Ibrahim Khoury Christopher Patrick Myers Jaime Danielle Rosen Chunfu Yan Reana Garcia Kevin Raul Kieffer Yusuke Nakajima Talia Leigh Rosenberg Marc Matthew Yenicag Baldomero Jose Garza In Sue Kim Amala Nath David Matthew Rownd Jisoo Yoo Ned Morrison Gelhaar Donald Robert Kinsley Laura Martha Nava Yael Rubinstein Michael Dongho Yoo Malick Walid Ghachem Lynne Marie Kizis Megan McDonough Anthony E. Rufo Matthew J. Youssef Sarah Ruth Goetz Brian Alexander Klein Needham Peter Russell Jennifer Jaeseon Yun Gaetan Francois G. Goldberg Matthew David Knoblauch Ryan Timothy Nelson Craig R. Rygiel Grant David Zacharias Jennifer Marie Gonos Randolph Christopher Vynessa Mari Nemunaitis Walter D. Santiago Matthew Jason Zeidel Carlos Daniel Gonzalez Knowles Laetitia Nicolazzi Takaki Sato Dawei Zhang Scott K. Goodell Joshua Robert Knox James Cory Nielsen Jessica Lee Seiden Jie Zhang Eric Joseph Greco Yuko Kobayashi Joshua Douglas Nimmo Karen Seif Mengqi Zhang Brett Brian Greenberg Kathleen Marie Konopka Kara Elizabeth Nisbet Louis John Seminski Wenyi Zhang Maria Sa Vieira De Medeiro Ibrahim Adedamola Kosoko Alison Jennifer Normant- Rishika Sengupta Yuchan Zhang Greetham Peter Yuri Kotelevtsev Finneran Mario A. Serra Wei Zhao Renee Jacqueline Gregory Nurseda Kucukkarca Obinna Ikemefuna Craig Michael Shepard Catherine Corrine Griffith Jon G. Kupilik Nwachukwu Gursharon Kaur Shergill

NYSBA Journal | October 2017 | 55 Continued from Page 64 7. copies of Eduardo Galvez’s Journal, it’s formal enough for legal 8. the defense attorney spent more immigration papers, as well as writing. time arguing about the plain of his marriage certificate and The best writing repeats key words, view doctrine instead of the subsequent divorce papers, will names, phrases, and concepts but third-party doctrine. likely be requested by the pros- doesn’t repeat transition words. When 9. Defense counsel admitted that ecuting attorney. possible, eliminate transition words the defendant did assault his 8. “Don’t ask, don’t tell,” the altogether. If the logic that moves your wife and that a trial would United States’ official policy on ideas forward is sound, your read- determine only the severity of military service by gay men, ers will connect the thoughts without the assault. bisexuals, and lesbians, which needing transitional devices like fur- 10. court officers protect judges had garnered the support of five thermore, however, moreover, and thereby not allowing people to enter federal Courts of Appeal, was fore. (If the transition word can’t be the courthouse without walking repealed in 2011 under President eliminated completely, put a conjunc- through metal detectors, encour- Barack Obama. tive adverb a third into the sentence.) aging court personnel to use 9. My cousin, furious after finding To ensure that your ideas are being different entrances and exits, and out that her fiancé had cheated developed soundly, move sentences escorting criminals in handcuffs. early in their relationship, called from short to long, from simple to off the wedding and flushed her complex, and from old to new, end- Subject/Verb Proximity engagement ring down the toilet. ing with power and climax. Include Good sentences keep their subjects 10. My bedroom, although it still a topic sentence — a sentence that and verbs next to each other. The smells like paint, is finished clearly states what you’ll be discussing shorter the distance between the sub- being remodeled by my dad. in the paragraph and what conclusion ject and verb in a sentence, the greater you’ll draw — at the start of every the cohesion and understanding. A Usage and Placement of Transition paragraph. And include a roadmap, short distance — or no distance — Words or thesis, paragraph at the start of between the subject and the verb also You can’t eliminate transition words each point. Roadmaps tell your readers reduces wordiness. entirely, but you shouldn’t use a tran- what’s being discussed, what you’re sition at the beginning of a sentence arguing, and in which paragraph(s) of Exercises: Subject/Verb Proximity unless you want to be dramatic or your brief they can find the informa- Rewrite the following sentences. emphatic. Sometimes it’s counterin- tion they desire or need. 1. information about the surgi- tuitive to use transitions at the end cal procedures Ms. Flores has of your sentences. Doing do empha- Exercise: Usage and Placement of undergone in the last ten years sizes the transitions and forces read- Transition Words will be required by the court. ers to look back to earlier sentences. Read the paragraphs below and edit 2. My paper, though it exceeded If drama, emphasis, or contrast is not them by using the transition usage the page limit set by the profes- desired, place the transition after the and placement rules to create a new, sor, was accepted and given an subject, in the first part of the sen- better paragraph. A-. tence. There’s a difference between On July 4, 2015, New York City 3. charlie, who is set to become “Although Paul’s always late, he’s a native Joshua Brandt, along with the owner of the company after good worker” and “Although Paul’s his seven-year old daughter, Carly, his father’s death, wasn’t at the a good worker, he’s always late.” The was at his neighbor’s house cel- board meeting discussing the meaning of this sentence depends on ebrating Independence Day by set- future of the company. the emphasis of the transition word ting off fireworks. First, they began 4. the trial, which involved testi- although. with small-scale fireworks, such as mony from dozens of witnesses, Don’t be afraid to begin sentences sparklers, pop-rocks, and tanks. some of whom flew here from with “and” or “but.” But don’t start Afterward, they moved onto larger places as far as California, lasted every sentence with them. The rules of fireworks, like Roman candles and for almost two months. plain speaking and plain writing pro- cakes. Presumably because shoot- 5. Sentences should have their vide that it’s better to begin a sentence ing off fireworks as a private resi- subjects and verbs located next with “and” or “but” than with a heavy dent has been illegal in New York to each other so that they can be and weighty conjunctive adverb like for decades, the group was setting most easily understood. “moreover” or “however.” If begin- them off in the backyard. However, 6. the brief, although it was flaw- ning a sentence with “and” or “but” the backyard was small and no lessly written, was submitted is formal enough for the front page of one was able to put much space late and therefore not accepted the New York Times and the Wall Street between them and the explosives. by the court.

56 | October 2017 | NYSBA Journal Consequently, everyone present was at risk of getting burned. Answers: Specificity airplane crashed in a corn field Regrettably, Carly was helping her 1. You should specify which grand- in South Carolina. neighbor set off a Roman candle daughter lives with Mr. Katz, firework when it exploded pre- especially if he has more than Answers: Parallelism maturely. Carly and her neighbor, one granddaughter or if not all 1. this sentence sounds incom- forty-year-old Dominic Amato, his granddaughters live with plete. It should be rephrased to were both injured in the blast. All him. In addition, should specify sound clearer. Corrected Version: things considered, they got off where he lives. Corrected Ver- The court clerks were afraid not easy, but both had to be hospital- sion: Mr. Katz’s youngest grand- only of the judge but also of the ized afterward. Amato sustained daughter, Caitlin, lives with him court attorney. first-degree burns on his abdomen, in his house in Marietta, Georgia. 2. there are two errors in this exer- and Carly suffered second-degree 2. this sentence can be made more cise. The first is that the word burns to her face and chest. Ulti- specific. Corrected Version: At that is repeated. The second is mately, Amato was arrested for the time of the alleged incident, that the acronym (NGRI) is not possessing illegal fireworks. Also, my client was food shopping at in parenthesis. Corrected Version: Brandt was arrested, but his charg- ShopRite. The defense attorney pleaded es were dropped. However, he has 3. Specify which bag was stolen. It’s that because his client was not since brought a lawsuit against likely that you have more than guilty by reason of insanity Amato, alleging that Amato is one bag. Corrected Version: My (NGRI), the defendant should be responsible for Carly’s injuries and floral Vera Bradley bag was sto- committed to a psychiatric facil- that he should therefore pay for len. ity. damages. 4. Specify which bill you’re talk- 3. keep correlative conjunctions ing about. Corrected Version: The parallel to make the sentence 1. change the placement of the health care bill doesn’t have legible. Also, eliminate all wordi- transition word in Sentence #2. bipartisan support. ness from this sentence. Cor- 2. combine Sentence #2 with Sen- 5. Specify which bananas don’t rected Version: Officer Rodriguez tence #3 to eliminate the transi- look ripe by using the demon- saw both the defendant and the tion word in Sentence #3. strative adjective these. Corrected plaintiff at the crime scene. 3. replace the transition word in Version: These bananas don’t 4. keep signals parallel to reflect sentence #4 with another word. look ripe yet. parallel ideas within lists. Cor- 4. change the placement of the 6. Specify which lawyer seems com- rected Version: The validity of transition word in Sentence #5. petent and get rid of the quali- the waiver of Miranda rights 5. combine Sentence #5 with Sen- fier. Corrected Version: The plain- depends on whether the waiver tence #6 to eliminate the transi- tiff’s lawyer seems competent. was willing, knowing, and intel- tion word in Sentence #6. 7. Specify which building was ligent. 6. Get rid of the transition word destroyed in the fire by using 5. this sentence contains poorly in Sentence #7 by replacing it the demonstrative adjective that. coordinated elements. Make all with the time of the incident In addition, specify when the the verbs past tense to make described. (You can make up the building was destroyed. Cor- time.) rected Version: That building was 7. rearrange Sentence #10 and Sen- destroyed in a fire last weekend. Membership Totals tence #11 to eliminate the transi- 8. this sentence can be made more tion word in Sentence #11. specific by briefly describing Ms. 8. change the placement of the Patterson’s illness. Corrected Ver- New Regular Members transition word in Sentence #12. sion: Ms. Patterson is suffering 1/1/17 - 9/20/17______6,108 9. replace the transition word in from end-stage renal failure. New Law Student Members Sentence #13 and change the 9. this sentence is convoluted and 1/1/17 - 9/20/17______870 placement of the transition vague. Corrected Version: After word. the teacher caught Kevin giv- Total Regular Members 10. Make whatever other changes ing Isabella his Scantron sheet, as of 9/20/17______57,342 you deem necessary. Kevin claimed that Isabella was Total Law Student Members Now that you’ve completed the the cheater and that he was only as of 9/20/17______7,178 exercises (we hope you didn’t peek helping his friend. at the answers), study the Legal Writ- 10. Specify where the airplane Total Membership as of er’s answers and compare them with crashed. Corrected Version: The 9/20/17 ______64,520 yours.

NYSBA Journal | October 2017 | 57 the items parallel. Corrected Ver- paper exceeded my professor’s its having been upheld by five sion: The defendant stated that predetermined page limit, he federal Courts of Appeals years the day of the alleged crime he accepted it and even gave it an before, this policy was repealed washed his car, mowed his lawn, A-. in 2011 under President Barack and fed his hungry grandma. 3. this sentence can be rewritten Obama’s leadership. 6. this sentence isn’t parallel. so that the subject and the verb 9. this sentence can be rewritten so Repeating the word who will are closer together. Corrected that the subject and the verb are make this sentence parallel. Cor- Version: Although Charlie is closer together. Wordiness can rected Version: A defense lawyer set to become the company’s also be eliminated in this sen- who had over fifty years’ experi- owner after his father’s death, he tence. Corrected Version: After my ence and who’s respected in the wasn’t at the board meeting to cousin found out that her fiancé court system suddenly passed discuss the company’s future. cheated early in their relation- away. 4. the subject is at the beginning ship, she called off the wedding 7. Matching introductory words of the sentence, while the verb and flushed her engagement creates parallelism. Corrected is near the end of the sentence. ring down the toilet. Version: The plaintiff’s lawyer Also, it’s important to be specif- 10. this sentence is convoluted. introduced evidence that was ic. Where is “here”? Corrected Ver- It can be rewritten so that the prejudicial and irrelevant to his sion: The trial lasted for almost subject and the verb are closer case. two months because it involved together. Corrected version: My 8. the sentence would make more lengthy testimony from dozens dad finished remodeling my sense if simply compared using of witnesses, some of whom had bedroom, but it still smells like the word than. Corrected Version: to fly to New York from places paint. The defense attorney spent more as far as California. time arguing about the plain 5. this sentence can be rewritten so Answers: Usage and Placement of view doctrine than about the that the subject and the verb are Transition Words third party doctrine. closer together. Corrected Version: On July 4, 2015, New York City 9. Defense counsel admitted that Sentences are easier to under- native Joshua Brandt, along with the defendant assaulted his wife stand when the subjects and the his seven-year-old daughter Carly, and that a trial would determine verbs are positioned close to was at his neighbor’s house cel- only the severity of the assault. each other. ebrating Independence Day by 10. Because one item in this list is in 6. the subject is at the beginning of setting off fireworks. The first the negative, repeating the intro- the sentence, while the verb is in fireworks they set off were small ductory word by will make the the middle of the sentence. Cor- — pop-rocks, sparklers, tanks, etc. sentence more parallel. Corrected rect this by making the sentence — but as the evening progressed Version: Court officers protect active and writing it in the posi- they began setting off larger fire- judges by not allowing people tive. Corrected Version: Although works, including cakes and Roman to enter the courthouse without the brief was written flawlessly, candles. Since shooting off fire- walking through metal detectors, it was submitted late, and there- works has been illegal for private by encouraging court person- fore the court rejected it. residents in New York for decades, nel to use different entrances 7. this sentence can be rewritten so though, the group was setting them and exits, and by handcuffing that the subjects and the corre- off in the backyard. The neighbor’s criminals before escorting them sponding verb are closer togeth- backyard was small, however, and anywhere. er. You should also eliminate everyone present was at risk of get- “likely.” Corrected Version: The ting burned because it was impos- Answers: Subject/Verb Proximity prosecuting attorney will request sible to put much space between 1. this sentence can be rewritten copies of Eduardo Galvez’s them and the explosives. in the active voice so that the immigration papers, marriage At approximately 10:00 p.m., subject and the verb are closer certificate, and divorce papers. Carly was helping her neighbor, together. Corrected Version: The 8. this sentence is convoluted. 40-year-old Dominic Amato, set court will require information It can be rewritten so that the off a Roman candle. It exploded about Ms. Flores’s surgical his- subject and the verb are closer prematurely, and both Carly and tory from the last decade. together. Corrected Version: The Amato were injured in the blast. 2. the subject is at the beginning United States official policy Amato, who sustained first-degree of the sentence, while the verb regarding military service by burns to his abdomen, and Carly, is near the end of the sentence. gays, bisexuals, and lesbians was who suffered second-degree burns Corrected Version: Although my “don’t ask, don’t tell.” Despite to her face and chest, both had to

58 | October 2017 | NYSBA Journal be hospitalized. After Amato was discharged from the hospital, he was arrested for possessing illegal NYSBA’s fireworks. Brandt was also arrested, but his charges were dropped. He later sued Amato, alleging that CLE On-Demand Amato is responsible for Carly’s injuries and should therefore pay for the damages. Bringing CLE to you...

The Legal Writer will resume this when and where you want it! series in a future issue. Until then, the next series, beginning in the next issue of the Journal, will consist of four parts entitled The Worst Mistakes in Legal Select from hundreds of Writing. n NYSBA CLE Video/Audio On-Demand Courses GERALD LEBOVITS ([email protected]), an acting New York State Supreme Court justice, is an adjunct at Columbia, Fordham, and www.nysba.org/cleonline NYU Law Schools. He thanks judicial interns Alexandra Dardac (Fordham University) and Rosemarie Ferraro (University of Richmond) for Our online on-demand courses combine streaming video or their research. audio with MP3 or MP4 download options that allow you to download the recorded program and complete your MCLE requirements on the go. Includes: • Closed-captioning for your convenience. In Memoriam • Downloadable course materials CLE accessible 24 hours a day, 7 days a week. Jana Springer Behe Albany, NY • Access CLE programs 24 hours a day, 7 days a week. Fred Bodoff West Hempstead, NY

William J. Hoblock Albany, NY

Janet Ray Kalson New York, NY

Paul D. Kelly Rochester, NY

Anthony A. Lenza Staten Island, NY

William J. Madonna Bronx, NY

Monroe Messinger Englewood Cliffs, NJ

Douglas Edward Nordlinger London, United Kingdom

Stephen A. Safranko Albany, NY

Laurence Vogel Livingston Manor, NY

NYSBA Journal | October 2017 | 59 Becoming a Lawyer By Lukas M. Horowitz Lukas M. Horowitz, Albany Law School Class of 2019, graduated from Hobart William Smith in 2014 with a B.A. in history and a minor in political science and Russian area studies. Following graduation, he worked for two years as a legal assistant at Gibson, McAskill & Crosby, LLP, in Buf- falo, New York, and with the New York Academy of Trial Lawyers hosting CLE programs. Lukas can be reached at [email protected].

Keep Calm and Law School On!

The more relaxed you are, the bet- relaxed, and when I look back to last Last week I submitted a paper ter you are at everything: the better year, it seems as if I am looking at a assignment for my Land Use Plan- you are with your loved ones, the completely different person. I cannot ning class. The paper required me better you are with your enemies, stress it enough. Life. Is. Good. to figure out, by researching zoning the better you are at your job, the This second year has brought a ordinances/regulations, whether I better you are at yourself. – Bill positive shift in my view of law would be able to open and operate Murray school. While I found the core classes a law office in my current residence. The first month of my 2L year has of my first year stimulating, being in While the short answer to the ques- already passed. As I walk to class classes now that I have chosen for tion is no, the level of complexity now, I look at the fresh new first year myself has changed the ball game. and nuance in zoning law is quite a faces. So much ambition! So much One of my favorite classes is Busi- challenge! Sign permits, rezoning, life! What can I do, but smile? I look forward to seeing them closer to their first finals period. Ah, I remember those days. So far 2L year reminds me of rid- This second year has brought a positive ing a bike after not having ridden for a while. A little wobbly at first, shift in my view of law school. but quickly returning to top speeds with plenty of wind blowing through my handlebar streamers. Learning to ride, i.e. 1L year, is always the hard- est part. ness Organizations. The best part multi-family residence versus two- I’m cruising now! My stress is at about this class is that while the family dwellings. I had no idea just a relatively comfortable low point focus is on the organization of cor- how complex and in depth zoning as compared to this time last year porations, enterprises, etc., I am also was in a city. And then to think of the (other than when I am watching the being afforded the opportunity to zoning issues in even larger cities, Bills play on Sunday afternoons). I learn an entirely new subject sepa- like New York City or Los Angeles. think this feeling is due to a greater rate from the law. I had always been I am not envious of the city planners sense of ease, which I feel not only in interested in economics during my who are responsible for zoning in myself, but in my fellow classmates. years in college, but as those class- those places, and I question whether This better hold on managing school es did not count toward my major I possess the brain power or patience has helped enhance class lectures and or minor, I avoided them. Now I to deal with such things! readings. Thirty pages of reading go am reading about de jure corpora- While I do enjoy rambling on by a heck of a lot quicker when you tions, hedge funds, principle-agent about my law school experience, I are actually able to read and have a relations, and so much more. This must shift my attention back to my basic understanding of the content overlap in learning sparks a feeling 1,900-page Constitutional Law text- on a first read rather than having to of accomplishment, for while I am book for tomorrow’s reading. I hope re-read something three times over striving toward a law degree, I am everyone is enjoying these final days (Don’t get me wrong, that still hap- incidentally broadening my overall of summer weather. And remember: pens!). There is a notable distinction knowledge. Relax. n in quality of life when you are more

60 | October 2017 | NYSBA Journal Classified Notices

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NYSBA Journal | October 2017 | 61 Headquarters Staff Email Addresses The New York Bar Foundation

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62 | October 2017 | NYSBA Journal 2017-2018 Officers Members of the HOuse of Delegates

First District Singer, David C. Fifth District Levin Wallach, Sherry Sharon Stern Gerstman aaron, Stewart D. Sonberg, Hon. Michael R. Fennell, Timothy J. Marcus, Robert B. President abramson, Joel E. Spirer, Laren E. Gaal, John * Miller, Henry G. Buffalo + * Alcott, Mark H. * Standard, Kenneth G. Gensini, Gioia A. * ostertag, Robert L. alvarez, Janet Stong, Hon. Elizabeth S. + * Getnick, Michael E. Preston, Kevin F. Michael Miller Berman, Mark Arthur temkin, Barry R. Hage, J. K., III Schriever, Andrew P. President-Elect Billings, Hon. Lucy tesser, Lewis F. LaRose, Stuart J. Schub, Benjamin E. New York Brown Spitzmueller, Janiece Udell, Jeffrey A. McCann, John T. Starkman, Mark T. Brown, Earamichia weiss, Mira B. Murphy, Hon. James P. thaler-Parker, Jessica D. Scott M. Karson chambers, Hon. Cheryl E. whiting, Judith * richardson, M. townley, Rosemary A. Treasurer chang, Vincent Ted whittingham, Kaylin L. Catherine weathers, Wendy M. Melville cheng, Theodore K. + * Younger, Stephen P. williams, James M. weis, Robert A. christian, Catherine A. Zuchlewski, Pearl Sixth District Tenth District Sherry Levin Wallach cohen, Carrie H. abbott, Rachel Ann Second District Barcham, Deborah Secretary connery, Nancy A. Barreiro, Alyssa M. aidala, Arthur L. Seldes Cross River Davis, Tracee E. corbin, Gemma Rossi Bonina, Andrea E. Block, Justin M. Ferguson, Gerald J. Denton, Christopher chandrasekhar, Jai K. * Bracken, John P. Claire P. Gutekunst Ferrara, Paul A. Flanagan, Patrick J. chidekel, David M. Burns, Carole A. Immediate Past President Finerty, Margaret J. Gutenberger, Kristin E. cohn, Steven D. calcagni, John R. Yonkers First, Marie-Eleana kelly, Kevin Thomas edgar, Paula Taryn christopher, John P. Foley, Jenifer J. + * Madigan, Kathryn Grant Fallek, Andrew M. May, Michael R. clarke, Christopher * Forger, Alexander D. Justin Vice-Presidents Grimaldi, Judith D. Shafer, Robert M. Freedman, Hon. Helen E. DiFalco, Michael Drew Heller, Meredith Stacy irst istrict Gallagher, Pamela Lee Ferris, William Taber, III F D Masucci, Deborah Seventh District Galligan, Michael W. Fishberg, Gerard Taa R. Grays, New York Napoletano, Domenick adams, Holly A. Gische, Hon. Judith J. Genoa, Marilyn Carol A. Sigmond, New York richman, Steven H. Brown, T. Andrew Glass, David L. Glover, Dorian Ronald richter, Aimee L. Buholtz, Eileen E. Second District Goldberg Velazquez, * Buzard, A. Vincent karson, Scott M. Elena Molly + Shautsova, Alena castellano, June M. kase, Hon. John L. Domenick Napoletano, Brooklyn Goldfarb, David Slavin, Barton L. christensen, Amy L. * Levin, A. Thomas Grays, Taa R. Steinhardt, Hon. Marsha L. Third District cicero, Jill M. Levy, Peter H. + * Gutekunst, Claire P. weston, Hon. Michelle Gaddis, Sheila A. Mancuso, Peter J. Henry M. Greenberg, Albany Hack, Jay L. Third District Getz, Jon P. Margolin, Linda U. Haig, Robert L. Fourth District Barclay, Kathleen Anne Hetherington, Bryan D. Meisenheimer, Patricia M. Hills, Bethany Burke, Jane Bello Jackson, LaMarr J. Pessala, Hon. Elizabeth D. Matthew R. Coseo, Gansevoort Himes, Jay L. everett, James William, Jr. Lawrence, C. Bruce Poster-Zimmerman, ifth istrict Hoffman, Stephen D. F D Fernandez, Hermes * Moore, James C. Lynn D. Hollyer, Arthur Rene Stuart J. LaRose, Syracuse Gailliard, Glinnesa D. Moretti, Mark J. * Pruzansky, Joshua M. Jaglom, Drew Gerbini, Jean F. * Palermo, Anthony * rice, Thomas O. Sixth District + * James, Seymour W., Jr. Gold, Sarah E. Robert Singer, Hon. Conrad D. Alyssa M. Barreiro, Binghamton kiernan, John S. Greenberg, Henry M. * Schraver, David M. Strenger, Sanford kiernan, Peter J. Grogan, Elizabeth Janas Shaw, Mrs. Linda R. tarver, Terrence Lee Seventh District kiesel, Michael T. Hacker, James E. tennant, David H. tully, Rosemarie David H. Tennant, Rochester * king, Henry L. Heath, Hon. Helena * Vigdor, Justin L. wicks, James M. kobak, James B., Jr. Hersh, Martin * Witmer, G. Robert, Jr. Eleventh District ighth istrict E D koch, Adrienne Beth Higgins, John Eric alomar, Karina E. Eighth District Norman P. Effman, Warsaw krausz, Diane F. Hurteau, Daniel Joseph Bruno, Frank, Jr. Disare, Melinda G. Land, Stephen B. kean, Elena DeFio carola, Joseph, III Ninth District Doxey, Deborah Anne + * Lau-Kee, Glenn kearns, Deborah S. cohen, David Louis * Doyle, Vincent E., III Michael L. Fox, Huguenot * Leber, Bernice K. Mandell, Adam Trent DeFelice, Joseph F. effman, Norman P. Lessard, Stephen Charles + * Miranda, David P. Gingold, Hilary Tenth District Mandell, Andrew * Freedman, Maryann onderdonk, Marne L. Saccomando Gutierrez, Richard M. Peter H. Levy, Jericho Maroney, Thomas J. rivera, Sandra + Gerstman, Sharon Stern Lee, Chanwoo Martin Owens, leventh istrict rosiny, Frank R. * Hassett, Paul Michael Samuels, Violet E. E D Deborah McNamara, ryba, Hon. Christina L. Mosher, Matthew Vitacco, Guy R., Jr. Karina E. Alomar, Ridgewood christopher James Schofield, Robert T., IV Thomas Twelfth District McNamara, Michael J. Twelfth District Stabinski, Alexander Nowotarski, Leah Rene calderón, Carlos M. + Miller, Michael Leon Pajak, David J. cassidy, Daniel D. Steven E. Millon, New York Minkoff, Ronald C. * Yanas, John J. Spitler, Kevin W. Marinaccio, Michael A. Moskowitz, Hon. Karla Millon, Steven E. Thirteeth District Fourth District Sullivan, Kevin J. owens, John, Jr. * Pfeifer, Maxwell S. Jonathan B. Behrins, Staten Island clouthier, Nicole L. Sweet, Kathleen Marie Prager, Bruce J. Santiago, Mirna M. coffey, Peter V. Young, Oliver C. Quartaro, Neil A. Thirteenth District coseo, Matthew R. Members-at-Large of the rosner, Seth Ninth District Behrins, Jonathan B. Jones, Barry J. russell, William T., Jr. Bowler, Richard J. cohen, Orin J. Executive Committee king, Barbara J. Safer, Jay G. Braunstein, Lawrence Jay Lamberti, Anthony J. rodriguez, Patricia L. R. Earamichia Brown Schnabel, David H. Burke, Michael K. Martin, Edwina Frances Schwenker, Eric C. Sen, Diana S. Burns, Stephanie L. Mascolo, Anthony A. Margaret J. Finerty Sciocchetti, Nancy * Seymour, Whitney cobb, Lisa M. McGinn, Sheila T. Michael W. Galligan North, Jr. Sharkey, Mrs. Lauren E. Fay, Jody Miller, Mrs. Claire C. Shamoon, Rona G. walsh, Joseph M. Sarah E. Gold Fox, Michael L. Out of State Shampnoi, Elizabeth Jean wildgrube, Michelle H. Richard M. Gutierrez Goldschmidt, Sylvia Jochmans, Hilary F. Sicular, David R. Hyer, James L. Millett, Eileen D. Bryan D. Hetherington Sigmond, Carol Ann keiser, Laurence Sulimani, Natalie Drew Jaglom Silkenat, James R. kirby, Dawn Elena DeFio Kean † Delegate to American Bar Association House of Delegates * Past President Bruce J. Prager Sandra Rivera William T. Russell, Jr.

NYSBA Journal | October 2017 | 63 The Legal Writer By Gerald Lebovits

Legal-Writing Exercises: Part IV

n the last issue of the Journal, The (that, these, such, etc.) instead of as either/or, neither/nor, both/and, Legal Writer reviewed important articles (the). not only/but also), and comparisons Iconcepts in legal writing, including • Remove unnecessary qualifiers should also be parallel. wordiness, when to use that vs. which from your sentences. vs. who vs. whom, professional tone, Exercises: Parallelism and absolutes and adverbial excess- Exercises: Specificity Rewrite the following sentences. es. This issue of our multipart series Rewrite the following sentences. 1. Not only were the court clerks reviews other important stylistic con- 1. Mr. Katz’s granddaughter lives cepts for legal writing: specificity, par- with him. Concision is key, allelism, subject/verb proximity, and 2. at the time of the alleged inci- the usage and placement of transition dent, my client was shopping. but legal writers should words. At the end of each section are 3. My bag was stolen. never sacrifice editing exercises. You can add words, 4. the bill doesn’t have bipartisan specificity for brevity. change words, delete words, or rear- support. range words — whatever you think is 5. the bananas don’t look ripe yet. afraid of the judge but also the best. After completing all the exercises, 6. the lawyer seems pretty compe- court attorney. look at the answers at the end of the tent. 2. the defense attorney pleaded article to see whether your answers 7. the building was destroyed in a that his client was not guilty by are correct. fire quite recently. reason of insanity, NGRI, and 8. Ms. Patterson is very sick. that his client should be commit- Specificity 9. when Kevin and Isabella were ted to a psychiatric facility. Concision is key, but legal writers caught cheating, he identified 3. officer Rodriguez saw the defen- should never sacrifice specificity for brev- her as the one who was cheating dant and plaintiff at the scene of ity. In legal writing, specificity is more and himself as only helping. the crime. important than concision. Just as ambigu- 10. the airplane crashed in a field. 4. the validity of the waiver of ity in a contract benefits the party that Miranda rights is determined didn’t draft the contract, ambiguity in Parallelism if the waiver was willing, the legal writing benefits adversaries. The Parallelism requires all elements in defendant knew what he was law is precise; there should be no room a list or a sentence to be presented in doing, and intelligence. for possible misinterpretations or misun- a similar — or parallel — fashion. By 5. the defendant stated that on derstandings. Be precise. Repeat sentence using the same or similar grammatical the day of the alleged crime he subjects if you must. When in doubt, form for coordinated elements, paral- was washing his car, mowed his specify. Don’t use vague pronouns or lelism makes the content of a sentence lawn, and his grandma was hun- referents like it unless the pronoun or ref- apparent and accessible. (“Similar gry so he fed her. erent refers to one thing only. Choose the grammatical form” means that nouns 6. a defense lawyer with over fifty words that convey the precise meaning are matched with other nouns, verbs years’ experience and who is you intend. Settle for nothing less than are matched with other verbs, prepo- respected in the court system accuracy, clarity, and precision. sitional phrases with other preposi- suddenly passed away. Here are some tips to do this: tional phrases, and so on. Coordinated 7. the plaintiff’s lawyer introduced • Use adjectives to clarify nouns, espe- elements include “and,” “but,” “or,” evidence that was prejudicial cially if the noun can refer to more “nor,” and so on.) Match key words in and that lacked relevance to his than one person, place, or thing. each sentence. Coordinating conjunc- case. • Use demonstrative adjectives tions, correlative conjunctions (such Continued on Page 56

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