State Bar seeks Constitutional Convention commission, debate on home rule

New York State Bar Association officials are calling on Gov. Andrew Cuomo to issue an executive order to create a commission to prepare for the 2017 voter referendum on a Constitutional Convention.

And Association officials say that, if approved, a Constitutional Convention should include a discussion of possible reforms to strengthen the home rule provision.

In a letter to Cuomo, Association President David P. Miranda pointed out that, although Cuomo’s proposed budget included funding for a commission, the adopted budget does not.

“However, previous commissions have been established by executive order,” Miranda wrote in the letter.

“We believe that the Governor’s authority to do this is well established, and we now urge you to again create a commission by executive order,” Miranda wrote.

“We can no longer wait for legislative approval. Time is already short. Thus, if a commission is to be appointed and be successful in its work, it is essential that you issue an order without delay,” Miranda said in the letter.

Cuomo’s office did not immediately respond to a request for comment.

Voters will decide in November 2017 whether to authorize a convention to recommend changes to the state Constitution.

Last November, the state Bar Association issued a report calling on the state government to create a commission to educate the public about the state Constitution and provide research in advance of the vote.

On April 5, the Association issued a second report that the balance of power between state and local governments has shifted and the topic of Constitutional Home Rule “is a subject ripe for consideration and debate.”

The report on home rule describes how the autonomy of local governments has been eroded by state laws and court decisions.

In theory, home rule provisions in the state Constitution give local governments the authority to decide how best to govern their communities and allows them to enact local laws without interference from the state Legislature.

But over the years those protections have been eroded to the point that the state Legislature has taken over the power to regulate local issues such as taxi cabs in New York City and the salary of the Allegany County district attorney, according to the 36-page report.

Today, the Legislature can order local governments to perform a wide range of functions in health care, education and social services. And the localities often are saddled with the financial burden of the mandates.

“New York imposes more unfunded mandates than any state,” according to the report.

Numerous states have provisions in their constitutions prohibiting or limiting unfunded mandates. They include: California, Florida, Hawaii, Louisiana, Michigan, Missouri, New Hampshire, New Jersey, New Mexico and Tennessee, according to the report.

Courts have limited home rule through the doctrines of state preemption and state concern, according to the report.

Under the state preemption doctrine, if a local government enacts a law that directly conflicts with a state law, the local law is unenforceable.

“Even in the absence of an outright conflict, a local law is preempted if the state Legislature has evidenced its intent to occupy the field,” according to the report.

For example, courts have ruled that localities can’t set operating hours for bars, raise the minimum wage above the state minimum wage, or enact local zoning ordinances to restrict the construction of power plants.

Citing state concerns, courts have upheld actions of the Legislature that: regulate waste disposal in Nassau and Suffolk counties and municipal sewers in Buffalo; require certain counties to pay district attorneys the same salary as county judges; and impose bidding requirements for local government contracts.

In New York City, courts have ruled that the Legislature has the power to oversee rent-controlled apartments, exempt firefighters from the city’s residency requirement, repeal the city’s income tax on commuters, and regulate taxi cabs, according to the Association’s report.

“I think it needs to be reviewed. I agree with the Bar Association with respect to that,” said Karl S. Essler, senior counsel at Bond Schoeneck & King.

But, Essler said, it would be difficult to argue that the preemption doctrine has significantly damaged local governments.

The state concern doctrine is a bigger issue to Essler.

“That’s where I see that the courts have gone quite a ways in imposing the idea that this particular issue is of such statewide importance that we can’t let local government do anything different without always looking at how minimal the impact may be on whatever state policy that is,” he said.