Bill S4687-2013

Relates to appeal as of right to the court of appeals based upon a constitutional question

Relates to appeal as of right to the court of appeals based upon a constitutional question; sets criteria for substantial constitutional question.

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  • Jan 8, 2014: REFERRED TO JUDICIARY
  • Apr 18, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S4687

TITLE OF BILL: An act to amend the civil practice law and rules, in relation to appeals to the court of appeals on constitutional grounds

PURPOSE: The purpose of this bill is to restore and clarify an important constitutional right of appeal, in response to almost a century of judicial precedent that has served to unduly restrict and obscure it.

SUMMARY OF PROVISIONS:

Section 1 amends section 5601(b) of the Civil Practice Law and Rules (CPLR) to provide that an appeal of right taken under this subdivision must raise a substantial constitutional question, in addition to satisfying the other criteria in these provisions.

Section 1 provides three separate grounds upon which a constitutional question raised on appeal shall be considered substantial. These criteria hinge on whether the constitutional question has been conclusively reviewed by the Supreme Court or the Court of Appeals, and if it has, whether the factual circumstances in the appeal are sufficiently unique such as to permit a modified holing. Section 1 further provides that a dismissal for failure to raise a substantial constitutional question shall not be binding on the Court of Appeals or lower courts in the same or other cases.

Section 2 amends CPLR section 5515 to provide that a notice of appeal taken as of right under CPLR section 5601(b) shall specify the ground(s) supporting the substantiality of the constitutional question raised, and briefly state the application of said ground(s).

Section 3 requires the Court of Appeals, in dismissing an appeal taken as of right for failure to raise a substantial constitutional question, to briefly explain the grounds of such finding.

EXISTING LAW: Article XI of the State constitution, as implemented by Article 56 CPLR, provides for an appeal "as of right" to the Court of Appeals in certain situations. An appeal as of right means that the Court of Appeals lacks discretion to dismiss the appeal, if properly made. The relevant as of right appeal here applies to cases that either directly involve the interpretation of the State or federal constitution, or involve the validity of a provision of State or federal law under the State or federal constitution. In addition to the statutory requirements, the Court of Appeals requires the constitutional question raised on an appeal as of right to be "substantial." The Court has never defined the meaning of "substantial" constitutional question, barring some cursory; nonbinding guidelines available on its website, and there is necessarily no statutory definition given the absence of the substantiality requirement from the CPLR.

JUSTIFICATION: The Court of Appeals' substantial constitutional question standard overly restricts and obscures the appeal as of right granted by CPLR section 5601(b). Ostensibly justified as a safeguard against frivolous appeals, this standard has been used to dismiss appeals that pass the frivolity threshold by any reasonable

definition. Its apparent utility consists instead in creating discretion where none exists under law--law as made by legislators at least.

The pliancy of the substantiality standard was illustrated in a 2010 case, Kachalsky v. Carace, 925 N.E.2d 80, where a Westchester resident challenged State law that requires a showing of "proper cause" for a permit to carry a handgun. After losing at the Appellate Division, the plaintiff appealed as of right under CPLR section 5601(b)(1), his appeal involving the constitutionality of the State's proper cause requirement under the Second Amendment. The Court dismissed the appeal for failure to raise a substantial constitutional question, a conclusion that contemporaneous and subsequent federal litigation rendered inconsistent with the common sense definition of "substantial."

The Kachalsy appeal involved two constitutional questions: whether the Second Amendment limits state power in addition to power of the federal government and, if it did, whether the proper cause requirement is consistent with the Second Amendment. As Judge Smith remarked in his dissent of the dismissal, "the first question is of such great substance, and current importance, that the Supreme has granted certiorari to consider it." The case Smith was referring to, McDonald v. City of Chicago, 557 US 3025, was decided in the plaintiff's favor four months after the Court of Appeals' decision. The issue of the constitutionality of the proper cause requirement itself was by no means trivial either. In fact, it later merited close scrutiny by the Second Circuit Court of Appeals, which acknowledged that relevant case law "provides no categorical answer to this case." The Second Circuit ultimately upheld the proper cause requirement, but clearly it found the constitutional issues "substantial" enough to merit serious discussion.

Leaving the Kachalsky case aside, it is common sense that a constitutional question is surely "substantial" if it is one for which no controlling law provides a "categorical answer." This uncontroversial principle will be codified in law under this bill. It bears emphasis that this bill does not dispense with the substantiality standard, which currently provides a useful if disproportionate safeguard against frivolous appeals. Moreover, the principles established in this bill for determining whether a constitutional question is substantial probably overlap with many unwritten aspects of the Court's current approach. By codifying these criteria in the CPLR, the Legislature will give clarity and transparency to an important area of appellate practice.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 4687 2013-2014 Regular Sessions IN SENATE April 18, 2013 ___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to appeals to the court of appeals on constitutional grounds THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (b) of section 5601 of the civil practice law and rules, paragraph 1 as amended by chapter 532 of the laws of 1963, is amended and two new subdivisions (b-1) and (b-2) are added to read as follows: (b) Constitutional grounds. An appeal may be taken to the court of appeals as of right: 1. from an order of the appellate division which finally determines an action where there is directly involved A SUBSTANTIAL QUESTION RELATING TO the construction of the constitution of the state or of the United States; and 2. from a judgment of a court of record of original instance which finally determines an action where the only [question] ISSUE involved on the appeal is A SUBSTANTIAL QUESTION RELATING TO the validity of a stat- utory provision of the state or of the United States under the constitu- tion of the state or of the United States. (B-1) SUBSTANTIAL CONSTITUTION QUESTION. A SUBSTANTIAL QUESTION RAISED UNDER SUBDIVISION (B) OF THIS SECTION IS ONE CALLING FOR THE CONSTRUCTION OR APPLICATION OF: 1. A PROVISION OF THE UNITED STATES CONSTITUTION THAT HAS NOT BEEN CONCLUSIVELY REVIEWED BY THE UNITED STATES SUPREME COURT, OR THAT HAS BEEN CONCLUSIVELY REVIEWED BY THE UNITED STATES SUPREME COURT, BUT THE FACTUAL CIRCUMSTANCES IN THE APPEAL ARE SUFFICIENTLY UNIQUE AND DIFFER- ENT FROM THE FEDERAL COURTS' APPLICATION OF THE CONSTITUTIONAL PROVISION;
2. A PROVISION OF THE STATE CONSTITUTION THAT HAS NOT BEEN CONCLUSIVE- LY REVIEWED BY THE COURT OF APPEALS; OR 3. A PROVISION OF THE STATE CONSTITUTION THAT HAS BEEN CONCLUSIVELY REVIEWED BY THE COURT OF APPEALS, BUT: (A) THE FACTUAL CIRCUMSTANCES IN THE APPEAL ARE SUFFICIENTLY UNIQUE FROM THE CASE OR CASES DETERMINED UNDER THAT PROVISION BY THE COURT OF APPEALS; OR (B) THERE IS ONLY ONE DECISION REVIEWING THAT PROVISION AND A DISSENT- ING OPINION WAS FILED AND THE APPEALING PARTY CONTENDS THAT THE PRIOR DECISION SHOULD BE RECONSIDERED. (B-2) RES JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF A DISMISSAL FOR FAILURE TO RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION. AN APPEAL AS OF RIGHT DISMISSED FOR FAILURE TO RAISE A SUBSTANTIAL CONSTITUTIONAL QUES- TION SHALL NOT BE DEEMED AN ADJUDICATION ON THE MERITS OF THE CONSTITU- TIONAL QUESTION RAISED ON APPEAL IN THE SAME OR ANY OTHER ACTION OR COURT. S 2. Subdivision 1 of section 5515 of the civil practice law and rules, as amended by chapter 491 of the laws of 1975, is amended to read as follows: 1. An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered except that where an order grant- ing permission to appeal is made, the appeal is taken when such order is entered. A notice shall designate the party taking the appeal, the judg- ment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. WHENEVER AN APPEAL AS OF RIGHT IS TAKEN TO THE COURT OF APPEALS PURSUANT TO SUBDIVISION (B) OF SECTION FIVE THOUSAND SIX HUNDRED ONE OF THIS CHAPTER, THE NOTICE OF APPEAL SHALL ALSO SPECIFY WHICH GROUND OR GROUNDS LISTED IN PARAGRAPH THREE OF SUCH SUBDIVISION APPLY TO THE APPEAL, AND CONTAIN A BRIEF ARGU- MENT AS TO THE APPLICATION OF SAID GROUND OR GROUNDS. S 3. Subdivision (a) of rule 5522 of the civil practice law and rules, as amended by chapter 682 of the laws of 1986, is amended to read as follows: (a) A court to which an appeal is taken may reverse, affirm, or modi- fy, wholly or in part, any judgment, or order before it, as to any party. The court shall render a final determination or, where necessary or proper, remit to another court for further proceedings. A court reversing or modifying a judgment or order without opinion shall briefly state the grounds of its decision. WHENEVER THE COURT OF APPEALS DISMISSES AN APPEAL AS OF RIGHT TAKEN PURSUANT TO SUBDIVISION (B) OF SECTION FIVE THOUSAND SIX HUNDRED ONE OF THIS CHAPTER FOR FAILURE TO RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION, THE COURT SHALL BRIEFLY EXPLAIN THE GROUNDS OF ITS FINDING. S 4. This act shall take effect immediately and shall apply to all actions pending or commenced on and after such effective date.

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