NYSBA Adopts Proposed Changes to State Constitution’s Home Rule

By Christian Nolan

April 9, 2021

NYSBA Adopts Proposed Changes to State Constitution’s Home Rule


By Christian Nolan

The New York State Bar Association’s Executive Committee has adopted proposed revisions to Article IX of the State Constitution – commonly referred to as “home rule” – regarding implied preemption, which has been a source of much uncertainty and litigation over the years.

NYSBA’s Committee on the New York State Constitution presented the revisions to NYSBA’s Executive Committee on Friday, April 9. The committee is chaired by Hon. Karen Peters, former presiding justice of the Appellate Division, Third Department.

“This proposal gives municipalities the flexibility and predictability they desire, avoids the possibility of divergence among the courts, protects areas of state law that were found – prior to the amendment’s effective date – to preempt local law and prevents the upheaval that would be caused by undoing years of precedent at one time,” the report stated.

Constitutional home rule, in theory, grants local governments the authority to decide how best to govern their communities in matters of local concern. It allows them to enact local laws without interference from the state Legislature.

NYSBA adopted a comprehensive report from the committee in 2016 that concluded home rule was ripe for consideration and that there was a need to weigh the benefits and costs of amendments to Article IX “that would restore local autonomy through greater certainty and clarity.”

The report recognizes the vital governance role played by local governments, which are responsible for drinking water, social services, zoning, schools, roads, parks, police, courts, jails, trash disposal and more.

In 1963, New York voters amended the home rule provision of the state Constitution to expand and secure the powers of local governments. Since then, those powers have been limited by judicial decisions and legislative mandates.

Implied field preemption has been the source of much uncertainty and litigation, and although courts have occasionally ruled in favor of localities, most often this doctrine has been used to invalidate local laws passed by local legislatures that had no notice that they were treading on prerogatives of the state.

The committee’s report cited a litany of cases where courts have found such implied preemption. The concerns localities have with this type of preemption are two-fold. First, localities are prevented from legislating within their home rule authority on matters that they arguably should be able to address. Second, localities operate in an atmosphere of uncertainty, not knowing whether a particular action they want to take will survive a preemption challenge.

Had a constitutional convention been approved by voters in 2017, it would have addressed home rule. But since it was defeated, the committee decided to directly address possible revisions to the state Constitution that could be routed through the legislative amendment process.

The language in the committee’s latest report, as adopted by the Executive Committee, would eliminate the implied preemption doctrine, thus allowing localities to determine with reasonable certainty whether or not potential local laws are in fact preempted by state law. Also, requiring the state legislature to declare explicitly its determination to preempt local laws would provide more predictability and reduced litigation and expenditure of resources by the state and local governments.

Click here to read the latest report, which includes the detailed revisions.

“We believe these changes strike the correct balance, provide greater fidelity to the intent of Article IX and afford clearer guidance to municipalities seeking to attain the autonomy promised by that article,” the report states. “The state would still be free to preempt local laws whenever it believes it important to do so, while local governments would be able to discern more clearly their authority to act with regard to their own property, affairs and government.”









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