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.