In Praise of the NY Legislative Process--Really

By Mike Dorf

With New York in the midst of one of its perennial budget delays--with the usual opera buffa made more preposterous by the seriousness of the financial situation--it's easy to become cynical about the entire legislative process.  I want to resist that impulse by applauding a recent small but important legislative accomplishment.  In the last couple of weeks the legislature passed and then Governor David Paterson signed a law repealing a number of unconstitutional provisions of New York's loitering law.  That may seem like a no-brainer, but it is surprising how laws that have been declared unconstitutional in court can remain on the books for years and do considerable mischief.  Here is how I put the point in a letter to Governor Paterson last Thursday (lightly edited here):
Dear Governor Paterson:

            I am writing to urge you to sign A05537 into law.  The bill would eliminate unconstitutional provisions of New York Penal Law § 240.35, the state loitering law.  The provisions that the bill would repeal were invalidated by state and federal courts long ago but continue to be enforced in violation of the rights of thousands of New Yorkers.

            Over a decade and a half ago, the United States Court of Appeals for the Second Circuit held that the loitering law’s blanket prohibition of all begging violates the First Amendment.  (See Loper v New York City Police Dep’t, 999 F2d 699 [2d Cir 1993]).   Yet in the ensuing years, police and prosecutors around the state have continued to enforce the law.  Even more disturbingly, as Federal District Judge Shira Scheindlin noted in an opinion earlier this year finding various New York City officials in contempt, the police have used the invalid law in a pattern of discriminatory enforcement “against the poor and gay men.”  (Casale v. Kelly, 2010 WL 1685582 [SDNY, Apr. 26, 2010]).

            Many of the most vulnerable New Yorkers lack the wherewithal to assert their rights against the loitering law, but even those who do may find that the mere pretext of authority it confers is enough to frustrate their efforts to obtain justice.  Just last month, we learned that a provision of the loitering law that was invalidated by the New York Court of Appeals in 1983 (see People v Uplinger, 58 NY2d 936 [1983]) was still the basis for training police officers, and that as a result, New Yorkers who are unconstitutionally arrested under the invalid provision lack an effective civil remedy against the arresting officer.  (See Amore v. Novarro, 2010 WL 2490017 [2d Cir, Jun. 22, 2010]).

            The provisions that A05537 would eliminate are antiquated relics that serve no legitimate law enforcement purpose.  Their long-overdue repeal would leave state and local authorities with ample grounds to combat stalking, (see Penal Law §120.15), aggressive panhandling (see Penal Law § 240.25), intentionally disturbing people or interfering with pedestrians or traffic (see Penal Law §§ 240.20(3), (5)), panhandling in enclosed spaces such as the New York City subways, (see Young v New York City Transit Authority, 903 F2d 146 [2d Cir 1990] (upholding N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.6 (1989)), and other real threats to public safety.

            Your signature on the repeal bill would be especially gratifying to me personally.  I first learned that the unconstitutional loitering law was still being enforced three years ago.  As a citizen of New York and a scholar and teacher of constitutional law, I was moved to write an Op/Ed in the New York Times calling for repeal.  (See Michael C. Dorf, Freedom to Want, NY Times 14WC (Jun. 17, 2007)). The experience of over two decades shows that so long as the offending provisions remain on the books, they will be used to violate New Yorkers’ constitutional rights, despite repeated state and federal court rulings striking them down.  The time is ripe for legislative repeal.

            Accordingly, I strongly urge you to sign the repeal bill.
Respectfully yours .... 

The ways of Albany are sufficiently opaque that I don't know whether my Op/Ed, the foregoing letter, or a white paper I sent to a number of state legislators in spring 2009 had any effect at all.  I do know that the SDNY litigation before Judge Scheindlin certainly drew some attention and I was also very impressed with the  responsiveness of the Governor's office.  On Thursday, when I learned that the Governor had not yet signed the bill with only a day to go before the (state equivalent of) the pocket veto deadline, I called the phone number listed on the Governor's website, explained that I was interested in writing the Governor about the bill, and was connected to a staff member who helped me get my letter to the lawyer reviewing the bill for the Governor in time to consider it in advising the Governor about whether to sign.

Does this experience mean that the government of New York State is working well?  Of course not, but it does show, I think, that it's not entirely broken.  There was no powerful interest group seeking the repeal of the unconstitutional vagrancy provisions and one could easily see how politicians might have demagogued against the repeal bill by raising specious threats of disorder in the streets.  That didn't happen.  That this repeal was accomplished without any fanfare--indeed without anybody really noticing--is a credit to the NY legislature and governor.