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

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.