The seven members of the highest court in New York State, the Court of Appeals — Chief Judge Rowan Wilson and Associate Judges Jenny Rivera, Mike Garcia, Madeline Singas, Tony Cannataro, Shirley Troutman and Caitlin Halligan — all took the same oath on assuming their august positions. It is their sworn duty and the task of their court to determine what the state Constitution says and what it means.
And which is why when the seven judges are presented today with a case about how the same Constitution is amended, they must vote to hear the matter and decide the role of the state attorney general in the amendment process.
The Constitution’s Article XIX (19 if you don’t recall your Roman numerals) lays out that any amendment proposed by Legislature “shall be referred to the attorney-general whose duty it shall be within 20 days thereafter to render an opinion in writing to the Senate and Assembly as to the effect of such amendment or amendments upon other provisions of the Constitution. Upon receiving such opinion,” lawmakers can vote. If the Legislature then passes it again in the next session, it goes before the voters.
Article XIX also says that “neither the failure of the attorney-general to render an opinion concerning such a proposed amendment nor his or her failure to do so timely shall affect the validity of such proposed amendment or legislative action thereon.”
So the Legislature can clearly go ahead if the AG’s opinion misses the 20 days or is never provided. But can the Legislature pass the amendment before the AG opines and before the 20 days has run? If so, the AG is superfluous. But the Constitution cannot have a superfluous section. And which is why the Court of Appeals must decide here.
This is not an abstract exercise, as in 2022, the Legislature approved an amendment even before AG Tish James issued her opinion. To us, this is clearly wrong and that first passage should not be valid. The Legislature needs to follow the Constitution.
We haven’t mentioned that the measure is called the New York State Equal Rights Amendment, but it doesn’t matter what it deals with. It could have been a bond question or a land use amendment or any other minor change in the Constitution. Neither does the fact that a lower appellate court in Rochester wrongly ruled that the lawsuit brought wasn’t timely as it should have utilized a legal process, called an Article 78, used to challenge a determination of a state agency, not an constitutional act of the Legislature.
Acts of the Legislature, such as regular legislation and constitutional matters, are not brought to court using Article 78, part of the Civil Practice Law & Rules in a section known as Proceeding Against Body or Officer. They never have been. When the state Senate was successfully sued for not voting on a Court of Appeals nomination last year, it was not an Article 78.
Constitutional questions, like this, get resolved by the Court of Appeals. And there is nothing more fundamental than what the Constitution says and what it means and how it is amended. And those answers must come from the Court of Appeals.
The judges must vote to accept this case and settle the matter about the AG’s opinions on amendments.
