Constitutional "stuff": house cleaning the New York Constitution.

• Author: Galie, Peter J.
• Position: II. Cleaning House Room by Room C. Article III - Legislature 2. Article III, section 6 through 7. Article VI, sections 36, 36-a, 36-c and 37, with footnotes, p. 1415-1440 - Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

2. Article III, section 6

   Section 6 of article III addresses the pay to be received by sitting legislators. It provides:

   Each member of the legislature shall receive for his or her services a like annual salary, to be fixed by law. He or she shall also be reimbursed for his or her actual traveling expenses in going to and returning from the place in which the legislature meets, not more than once each week while the legislature is in session. Senators, when the senate alone is convened in extraordinary session, or when serving as members of the court for the trial of impeachments, and such members of the assembly, not exceeding nine in number, as shall be appointed managers of an impeachment, shall receive an additional per diem allowance, to be fixed by law. Any member, while serving as an officer of his or her house or in any other special capacity therein or directly connected therewith not hereinbefore in this section specified, may also be paid and receive, in addition, any allowance which may be fixed by law for the particular and additional services appertaining to or entailed by such office or special capacity. Neither the salary of any member nor any other allowance so fixed may be increased or diminished during, and with respect to, the term for which he or she shall have been elected, nor shall he or she be paid or receive any other extra compensation. The provisions of this section and laws enacted in compliance therewith shall govern and be exclusively controlling, according to their terms. Members shall continue to receive such salary and additional allowance as heretofore fixed and provided in this section, until changed by law pursuant to this section. (132) This section states that members of the legislature shall receive a salary to be fixed by law. The purpose of this statement is unclear, as it is certain the legislature would have the power to fix its members' salaries in the absence of the provision. Rather, it was inserted as an alternative to a previous provision, which specified the salaries of legislators (and thus required an amendment every time an increase was sought). (133) Although this may have been more palatable than eliminating the fixed salary amount without any alternative, the decision to leave that determination to legislative discretion renders the clause superfluous. The same can be said for the other "permissives" in the section. Providing that all members receive like salary allowances and reimbursements for expenses as fixed by statute and that they be neither reduced nor increased during the term for which they were elected would seem to be all that is necessary. (134)

3. Article III, section 8

   Section 8 of the legislative article is a short provision that, on its face, may not seem unnecessary or redundant: "The elections of senators and members of assembly, pursuant to the provisions of this constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the legislature." (135) This provision is typical of many provisions in the document that detail a particular action, and then give the legislature complete discretion to adopt a contrary requirement. As a result, the section is a default mechanism subject to change at the will of the legislature, and any attempt to understand it requires not only a review of the constitution but also a review of any applicable legislation.

4. Article III, section 17

   This section has as its purpose "reduc[ing] the pressure on legislators from interested parties to pass bills that provide private benefits and to prevent legislators from passing local legislation in areas in which they are neither well informed nor competent." (136) The legislature is prohibited from passing a private or local bill in fourteen specified areas:

   Changing the names of persons.

   Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands.

   Locating or changing county seats.

   Providing for changes of venue in civil or criminal cases.

   Incorporating villages.

   Providing for election of members of boards of supervisors.

   Selecting, drawing, summoning or empaneling grand or petit jurors.

   Regulating the rate of interest on money.

   The opening and conducting of elections or designating places of voting.

   Creating, increasing or decreasing fees, percentages or allowances of public officers, during the term for which said officers are elected or appointed.

   Granting to any corporation, association or individual the right to lay down railroad tracks.

   Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.

   Granting to any person, association, firm or corporation, an exemption from taxation on real or personal property.

   Providing for the building of bridges, except over the waters forming a part of the boundaries of the state, by other than a municipal or other public corporation or a public agency of the state. (137)

   Although there are good reasons for prohibiting private bills concerning many of these subjects, the advance of home rule in New York during the twentieth century gives cause for re-examination of this section. The Home Rule Article adopted in 1963 (138) provides that absent an emergency, (139) the legislature may act by special law "in relation to the property, affairs or government of any local government" only when requested to do so by either two-thirds of the membership of the local legislative body or by the municipality's chief executive officer and a majority of the local legislative body. (140) Because a number of the prohibited categories found in article III, section 17 affect the property, affairs, or government of a local government, they would not be permitted even in the absence of that section without the consent of the local government; conversely, if the local government provides the necessary consent required by article IX, then the purpose behind article III, section 17 (to place those functions in the care of the authorities most knowledgeable of them) has been served. By eliminating certain categories that are governed by the home rule provisions, this section could be shortened and made more relevant. (141)

5. Article III, section 24

   The framers of the 1894 Constitution believed, inexplicably, that it was necessary to constitutionalize the state's policy for prison employment. The result, as amended, is the following section:

   The legislature shall, by law, provide for the occupation and employment of prisoners sentenced to the several state prisons, penitentiaries, jails and reformatories in the state; and no person in any such prison, penitentiary, jail or reformatory, shall be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his or her work, or the product or profit of his or her work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation, provided that the legislature may provide by law that such prisoners may voluntarily perform work for nonprofit organizations. As used in this section, the term "nonprofit organization" means an organization operated exclusively for religious, charitable, or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual. This section shall not be construed to prevent the legislature from providing that convicts may work for, and that the products of their labor may be disposed of to, the state or any political division thereof, or for or to any public institution owned or managed and controlled by the state, or any political division thereof. (142) This section is a textbook example of the elevation of statutory law to the status of constitutional law. The evils that produced the section, the unfair advantage given to contractors who entered into agreements with prison authorities to provide labor, are no longer prevalent and are not likely to be revived. The issue can be readily addressed by statute, obviating the need for a constitutional amendment every time more enlightened or progressive penal reform is necessary. The section exemplifies the difficulty that accompanies the removal of constitutional material once it is adopted. A 2009 amendment edited the last sentence of the section to allow inmates to voluntarily perform work for nonprofit organizations, in contrast to the limitations that had existed since the section was first adopted. (143) It may be that there are continued justifications for the ensconcing of prison regulations in our fundamental law but those justifications need to be adumbrated. In their absence, this provision could readily be removed. The 2009 amendment provided a perfect opportunity for such a revision and reduction; instead, the document was lengthened and made to read more like a statute book.

   4. Article TV--Executive

   Article IV, the Executive Article, is fairly compact compared to the articles concerning the other branches of government. Contained within this article are necessary sections addressing things such as the term, time of election, and powers of both the governor and lieutenant governor. There is one provision, however, which has existed since New York's first constitution in 1777 that is anachronistic.

1. Article IV, section 5

   Section 5 provides for situations in which the lieutenant-governor shall act as governor. It provides:

   In case of the removal of the governor from office or of his or her death or resignation, the lieutenant-governor shall become governor for the remainder of the term.

   In case the governor-elect shall decline to serve or shall die, the lieutenant-governor-elect shall become governor for the full term.

   In case the governor is impeached, is absent from the state or is otherwise unable to discharge the powers and duties of the office of governor, the lieutenant-governor shall act...