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NYSBA SPRING 2010 | VOL. 12 | NO. 1 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School The New York State Constitution • When Is Constitutional Revision Constitutional Reform? • Overcoming Our Constitutional Catch-22 • The Budget Process • Proposals to Clarify Gubernatorial Inability to Govern and Succession • Ethics • More Voice for the People? • Gambling • Would a State Constitutional Amendment Promote Public Authority Fiscal Reform? • Liberty of the Community • Judging the Qualifications of the Members of the Legislature “I am excited that during my tenure as the Chair of the Committee on Attorneys in Public Service our Technology Subcommittee, headed by Jackie Gross and Christina Roberts-Ryba, with assistance from Barbara Beauchamp of the Bar Center, have developed a CAPs blog. This tool promises to be a wonderful way to communicate to CAPS Announces attorneys in public service items of interest New Blog for and by that they might well otherwise miss. Blogs Public Service Attorneys are most useful and attract the most NYSBA’s Committee on Attorneys in Public Service interest when they are (“CAPS”) is proud to announce a new blog highlighting current and updated interesting cases, legal trends and commentary from on a regular basis, and around New York State, and beyond, for attorneys our subcommittee is practicing law in the public sector context. The CAPS committed to making blog addresses legal issues ranging from government the CAPS blog among practice and public service law, social justice, the Bar Association’s professional competence and civility in the legal best! profession generally. Thanks to the subcommittee for this Entries on the CAPS Blog are generally authored by great contribution!” CAPS members, with selected guest bloggers providing articles from time to time as well. Comments and tips —Peter S. Loomis may be sent to [email protected]. CAPS Chair To view the CAPS Blog, you can visit http://nysbar.com/ blogs/CAPS. You can bookmark the site, or subscribe to the RSS feed for easy monitoring of regular updates by clicking on the RSS icon on the home page of the CAPS blog. SPRING 2010 | VOL. 12 | NO. 1 Government, Law and Policy Journal Contents Board of Editors 2 Message from the Chair J. Stephen Casscles Peter S. Loomis Lisa F. Grumet James F. Horan 3 Editor’s Foreword Barbara F. Smith Rose Mary K. Bailly Patricia K. Wood 4 Introduction: The New York State Constitution Staff Liaison Bennett Liebman Albany Law School Editorial Board 5 When Is Constitutional Revision Constitutional Reform? Rose Mary K. Bailly Constitutional Development in New York Editor-in-Chief Peter J. Galie Patricia E. Salkin Director, 13 A Convention for New York: Government Law Center Overcoming Our Constitutional Catch-22 Vincent M. Bonventre Gerald Benjamin Founding Editor-in-Chief 20 The Budget Process and the New York State Constitution Student Editors Henrik N. Dullea Ali Chaudhry Executive Editor 28 “Who’s in Charge?”: Robert Axisa Proposals to Clarify Gubernatorial Inability to Govern and Succession Jeremy Cooney Michael J. Hutter Stephen Dushko Marwa Elbially 35 Ethics and the Constitution Lynn Evans Karl J. Sleight and John A. Mancuso Jillian Kasow Joi Kush 40 More Voice for the People? Daniel Schlesinger Eric Lane and Laura Seago Robin Wheeler Andrew Wilson 46 Gambling and the New York State Constitution Senior Editors Bennett Liebman Editorial Offi ce GLP Journal 52 Would a State Constitutional Amendment Promote Public Authority Government Law Center Fiscal Reform? Albany Law School Scott Fein 80 New Scotland Avenue Albany, NY 12208 57 Liberty of the Community: Addressing an Age-Old Confl ict 518.445.2329 Paul M. Bray Send Address Changes to: Records Department 62 The Judge of the Qualifi cations of Its Members New York State Bar Assoc. Bennett Liebman One Elk Street Albany, New York 12207 68 CAPS 2010 Annual Meeting Highlights 518.463.3200 [email protected] The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed or otherwise en- gaged in public service. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the its editors, the Government Law Center, or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quota- tions. Contact the editor-in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2010 by the New York State Bar Association. ISSN 1530-3942 (print) ISSN 1933-8414 (online). The is published twice a year. Message from the Chair By Peter S. Loomis In my fi rst message as As the work of our various CAPS subcommittees chair of the Committee on continues, it is an appropriate time to refl ect on the Attorneys in Public Service importance of public sector attorneys to the Association, (CAPS), I talked about our and conversely, the importance of the Association to those Committee’s structure, our attorneys working in the public sector. It is a symbiotic past accomplishments and relationship that does not currently command enough our aspirations for the year discussion. It was former Association President Kate Ma- ahead. Since then, CAPS has digan who, when she served as chair of the Membership continued its important role Committee, spearheaded the effort within the Associa- as part of the greater Associ- tion to determine how the Association could better meet ation. In January, CAPS once the needs and interests of government attorneys. Former again sponsored a day-long CAPS chair Hank Greenberg discussed the genesis of the CLE as part of the Annual Committee in a Message from the Chair in the Spring Meeting in New York City. 2001 issue of the Government, Law and Policy Journal. As In the morning, Brooklyn Law School Professors Jason Hank stated, “…the story begins in 1997—the year when D. Mazzone and William D. Araiza led a discussion of NYSBA’s leadership came to grips with the fact that a signifi cant recent decisions of the Supreme Court and im- remarkably high number of attorneys in public service did portant cases currently pending before the Court. The an- not belong to any bar association. This under-represented nual Supreme Court review has become a CAPS tradition and therefore under-served attorney group posed dilem- and continues to be well received. The afternoon program mas for NYSBA and public service attorneys alike. NYSBA changes each year, and this year’s program was entitled is unable to fully represent the wide spectrum of the legal The State Legislature and the State Constitution: The Path profession if public service attorneys, with their unique Forward. The session brought together three expert panels perspectives, go largely unheard, their talents untapped, whose members represented a variety of perspectives, and their needs unmet.” A NYSBA Task Force was as- including academic, judicial, legislative and executive, sembled to study the issue, which, among other activities, on the governance issues that have faced New York State surveyed government lawyers and discovered that man- over the past year and will continue to be relevant in the agers of government law offi ces often discouraged their coming months. Having attended several of CAPS’s past attorneys from participating in bar association activities. afternoon programs, all of which have been relevant and Again quoting Hank Greenberg, “…all too often, the Task timely, I thought this year’s topic was the most fascinat- Force learned, government lawyers were warned that bar ing, and made even more so by the frank comments of association participation was not in the government’s best the panelists, including the Counsel to the Governor. interest or ethically problematic.” In 1998, based on rec- Special thanks go to our Annual Meeting Subcommittee ommendations of the Task Force, CAPS was established. co-chairs, Natasha Phillip and Spencer Fisher, for their tireless efforts in producing this stellar program. Although we are now in our 12th year of existence and CAPS has enjoyed great successes and garnered CAPS closed out this extraordinary day with its increasing respect inside and outside of the NYSBA, the annual reception during which our Committee’s Award relationship between public sector attorneys and the As- for Excellence in Public Service was presented to three sociation continues to be a work in progress. co-recipients. This year’s honorees were Diane F. Bosse, former Chair of the New York State Board of Law Ex- CAPS has established itself as the focal point for pub- aminers; Hon. Patricia D. Marks, of the Monroe County lic sector attorneys in visible ways, as evidenced by our Court; and Peter H. Schiff, of the New York State Depart- Government, Law and Policy Journal, our awards and cita- ment of Law. Selecting recipients is always a challenge tions program, and our CLE programs at the Association’s since each year a signifi cant number of highly qualifi ed Annual Meeting each year. Our talents as public servants and deserving public servants are nominated. My thanks have been well tapped and the Association has benefi ted. go to our Awards and Citations Subcommittee co-chairs, Our committee’s role in promoting the relevance of the Tony Cartusciello and Donna Hintz, for their work this Association to public sector attorneys has been vital and is past fall in shepherding the awards process for CAPS. well recognized by the Association’s leadership. We con- Thanks go as well to former Chief Judge Kaye and Judge stitute an important segment of the Association’s member- Read of the Court of Appeals who graciously agreed to ship.
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