“I would expect a decision very soon from the appellate division and that this matter will wind up in the Court of Appeals,” attorney and former New York Republican congressman John Faso told The Epoch Times.
The litigation originated in the Livingston County Court when New York civil rights attorney Bobbie Anne Cox sued both chambers of the New York Legislature on behalf of Assemblymember Marjorie Byrnes (R-N.Y.) alleging they didn’t follow proper procedure before voting on the constitutional amendment in the first place.
Time Frame at Issue
On June 24, 2022, the U.S. Supreme Court knocked down Roe v. Wade in its Dobbs decision. In reaction, New York Gov. Kathy Hochul called a special session to protect abortion rights in the state. On July 1 the ERA was introduced and passed both houses of the New York legislature.
Ms. Cox complained in the underlying legal action that the state legislature was required to wait 20 days before voting on the amendment until New York Attorney General Letitia James had issued an opinion as to whether or not it conflicts with other parts of the constitution.
“If the AG doesn’t respond in those 20 days, then they lose the opportunity to give their opinion,” Ms. Cox told The Epoch Times. “After that, the legislature can vote, but you can’t ignore that provision. You can’t say the 20-day time frame doesn’t matter and that you can just vote whenever you want.”
Ms. James issued a written opinion in support of the amendment on July 6, 2022.
The state’s attorney, Dustin Brockner, argued before a panel of five judges in the New York Fourth Department Appellate Division in Rochester on June 17 that Cox’s lawsuit is barred by New York State Civil Practice Law and Rules (CPLR) Article 78’s four-month statute of limitations and that a written opinion from the attorney general’s office is only advisory, not mandatory.
“No one in the legislature needs to consider it,” Mr. Brockner told the judicial panel. “In fact, nothing in the Constitution requires this opinion to even be distributed to any individual legislator.”
The statute of limitations began on July 1, 2022, when Proposition 1 was voted on, yet the complaint was filed some 14 months later. The measure, which needed passage by two consecutive legislatures to be placed on the ballot, was approved again by both houses on Jan. 24, 2023.
Elected officials named in the lawsuit include Democrat Senate Majority Leader Andrea Stewart-Cousins, Republican Senate Minority Leader Robert Ortt, Democrat Assembly Speaker Carl Heastie, Republican Assembly Minority Leader William Barclay, and the New York State Board of Elections.
“I’ve never heard of an Article 78 against the state legislature so I don’t think that ultimately is a real issue,” Mr. Faso said.
Article 78 is a procedural challenge to a governmental action or inaction.
Among the questions asked by the judicial panel, led by Judge John Curran, was whether the enactment was procedural or substantive and what the relief would have been under Article 78. Mr. Curran was appointed to the judiciary by former Republican Gov. George Pataki.
An action filed under Article 78 would have invalidated the legislature’s determination to adopt the resolution, according to Mr. Brockner.
“They’re not challenging the constitutionality of legislation,” he added. “They’re challenging a concurrent resolution. So, this is different from all the cases they cite for that additional reason.”
Ms. Cox accused the state of muddying the waters by confusing a bill with an amendment.
“They are making nonsensical arguments because they know what the legislature did was wrong,” Ms. Cox told The Epoch Times. “They didn’t follow the Constitution.”
Neither the attorney general’s office nor Mr. Brockner replied to requests for comment.
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