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February 23rd, 2017

#VoterProChoiceLawyer Robbie Kaplan

Guests: Co-founder and CEO of #VoteProChoice, Heidi Sieck, former President of the Bar Association of the City of New York Evan Davis, and partner in the Paul, Weiss Litigation Department and “litigation superstar” Robbie Kaplan

This month’s episode of Effective Radio’s 12-part series about the People’s Convention focused on Equal Rights for All.

Listen to show hour 1

Listen to show hour 2

Transcript of interview with Evan Davis

Morano: Somebody that’s also been fighting the good fight for a constitutional convention is Evan Davis. He is a lawyer’s lawyer. Former President of the Bar Association of the City of New York and Vice Chair of the Trustees of Columbia University. He is part of a new group about the constitutional convention. Evan, tell us about your group, and how you came to be such a supporter of a constitutional convention?

Davis: I should begin by mentioning something you left out, which is for five years, I was the Chief Council to Governor Mario Cuomo. So I spent five years up in Albany. And I remember the Governor said, “Oh, Evan. You can spend two days a week in Albany, the rest you can spend in the New York office.” That wasn’t the way it worked out. It was almost 24/7 in Albany because the Governor was a very hard-working guy.

But I saw Albany up close, so I see and know first-hand the need for fixing, the need to make it more representative of the people, more responsive to the needs of the people, the need to put strong measures to put Albany more on the straight and narrow.

We’re never going to eliminate all corruption from government. It can’t be done. But we have so much in Albany, that the need to make important progress is real.

We need to make it easier for people to vote. The Constitution is full, the New York Constitution is full of provisions that make it, believe it or not, hard to vote. I’ve often said that if a person from Mars came down to this world and looked at the New York State Constitution, they would conclude that we didn’t want people to vote. And we just have to fix that.

It’s easier, whether it’s ethics, or whether it’s voting, or whether it’s the item we’re going to talk about in a minute, which is Equal Protection, Equal Rights, Equal Liberties, Equal Opportunity inclusion, the legislature is never going to do it.

Does anyone really think the legislature is ever going to adopt good ethics reform? Mario Cuomo tried. George Pataki tried. Andrew Cuomo tried. It just won’t be done. The legislature doesn’t want it.

Morano: And that paragon of ethical virtue, Eliot Spitzer, also tried.

Davis: Eliot tried. He couldn’t do it. He had been the “Sheriff of Wall Street,” but he was unable to be the “Sheriff of Albany.”

Samuels: Well, Evan, I have to tell you, I’m not going to let you off the hook, because your group, The Committee for a Constitutional Convention, is so impressive. And if you could take a minute if you’re willing to, tell us about some of the members that you’re working with – and I should preface it by saying Morgan and I just are so happy to be working with Evan and cooperating, and whether he knows it or not, he’s one of our candidates to lead the convention because he is so knowledgeable. But tell the listeners a little more.

Davis: I favor Judge Lippman leading the convention. We have people from Western New York, we have the former Attorney of Erie County and the sitting Attorney of Buffalo, he did both of those jobs. We have the person who’s the Dean of the Buffalo Law School. We have Stan Lundine, who remember, was Lt. Governor under Mario Cuomo, and Mario Cuomo was so much for a convention.

Unfortunately, he passed away and can’t be here to advocate for it. But Stan Lundine out from Chautauqua –Bill, you know that territory really well –

Samuels: Yes.

Davis: He is very much in favor of a convention and he’s a member of our group. Judge Goodman is a member of our group, and he’s for a convention. We have Republicans. We have Judge Vicky Graffeo, who was the Council to the Assembly Minority, and then she became a Judge on the New York Court of Appeals, and she was there for a number of years and did an excellent job. And she is now in private practice. She’s for a convention and she’s a member of our group.

So we have the former Corporation Council of New York under Mayor Bloomberg, Mike Cardozo. He is for a convention. He is particularly interested in court reform. And we’ve tried for years to get the legislature to adopt court reform because we have this incredibly complicated, wasteful, expensive system with 11 different kinds of courts, and the cases shuttle from one court to another, and lawyers’ fees mount and court costs mount. It’s a total waste of money and justice delayed is justice denied. But the legislature won’t fix it.

Samuels: And by the way, when people complain “Oh, the convention’s going to cost a lot of money,” court restructuring in and of itself every year will save us more money than the cost of the convention one time.

Davis: And you’ve heard the story, Bill: the cost of the convention in 1967 was around eleven million dollars and Gerry Benjamin, who is a noted authority on conventions, from the Hudson Valley, a Distinguished Professor of the SUNY system, he estimated the cost of the convention today by escalating that eleven-million-dollar number would be about forty-seven million. I think it will be even cheaper with modern technology and Skype and all that – but he said forty-seven million.

The opponents of the convention tried to scare people. They took his inflated number – eleven million was the real cost, and bring it up to current dollars, forty-seven million. They took the forty-seven million, and they said that was the cost back in 1967 – totally bogus. So then they took the forty-seven, which has already been inflated, and they inflated it again to get this incredibly big number which was just – you know we hear about “alternate facts” – this was your ultimate – I’m really said to see alternative facts coming from Washington to Albany, but this was a perfect example of alternate facts.

And it was a number used by – of all people – the Majority Leader of the State Senate John Flanagan in opposing the convention. The legislature is opposed. Of course they’re opposed. They don’t want ethics. They don’t want reform. They don’t want other people to tell them what they should do.

They don’t want to give up any of their power to set the contribution so high – “so high” is an exaggeration, because there are these loopholes, so that you can get whatever you want. But if you wait for the legislature to fix those things, you’re going to be waiting for an eternity. So we have to have a convention to do it.

Pehme: Evan, on the topic of the Equality for All Amendment, why in your mind is this an important addition to the Constitution, and to pose a question that Frank has brought up a number of times this evening, how will this actually effect people’s lives? How, from a day-to-day perspective, will this improve the lot of women, LGBT people and the disabled?

Davis: So let’s start with women. You know, it’s interesting that 100 years ago, women could not vote. So what kind of respect for that, for the individual dignity of a woman, to tell her that her views about politics, her views about candidates – who’s good and who’s not good – are irrelevant and not worthy of being considered. And it was 100 years ago that women could not vote.

And I think it’s really interesting that women got the right to vote in New York on what will be exactly 100 years on the day before we vote to have a constitutional convention. Because it was on November 6th, in 1917, that women got the right to vote when at the general election in 1917 they voted for women, and a hundred years later on November 7 2017 we’re going to vote on whether to have a convention. So women have made progress in getting the respect and dignity, in the glass ceiling’s coming down, and all that kind of stuff.

We all know that progress has been made, and no one denies, important progress.  But it’s not done.  And by putting a provision in the constitution that says we really believe in inclusion, we really believe in equal opportunity, we really believe in respecting the dignity of each and every individual — putting that in the Constitution and making it enforceable by the courts, so they have to work for inclusion, so they have to work for equal opportunity, so they have to work to respect the dignity of each person — will help us go further down the road.

There’s a phrase: “Equal means equal.” There’s a phrase by Jessica Neuwirth, who is one of the great leaders of the women’s movement, the national Equal Rights movement, “Equal means equal.” And that’s what this constitutional provision would do. It would commit us to equal means equal for women. Equal means equal for people of different sexual orientations and sexual preferences.

We just heard that President Trump’s Administration has withdrawn the transgender guidance issued by the Obama folks. Does that reflect inclusion? Does that reflect equal means equal? Does that reflect respecting the dignity of a transgender person? Of course it doesn’t. And this provision, by including not only gender, but including sexual orientation and sexual identity would move that along.

Before I mention disabled, I want to include one other very important group. Two groups, actually. Two groups that suffer from prejudice and this issue. We’ve all heard the phrase “Black lives matter.” And why do we hear that phrase? “Black lives matter.” Of course we know that all lives matter. But we have to particularly worry about lives that have been devalued by prejudice. And Black lives, Latino lives, national origin, race. These are lives that can be devalued. Not treated with Equal Opportunity. Not treated with full dignity for the respect of each person.

And this amendment will help to address national origins, race, ethnicity, citizenship – all these areas where we want to give real respect and dignity and a right to inclusion no matter what the characteristic that they might have that causes them to suffer prejudice.

Samuels: Do I hear you saying – and Frank, you can take it from here – that by having the words “Equal Rights,” versus a right to Equal Protection from discrimination is a stronger legal phraseology in the Constitution that will lead to better court decisions. Am I stating that correctly?

Davis: I think the best text is to be what the goal is. That the goal is to cover every single right, whether it’s a right in statute law, or judge-made law, whether it’s what lawyers call a privilege, which is what you are allowed to do, whether it’s an immunity, which is what somebody can’t tell you not to do. All of those protections should be enjoyed equally by everybody. And I think the law, and my own hope would be that it would reference the goal of inclusion, respect for individual dignity, and equal opportunity. And with that guidance to the court, and with those words, talking about every right, every power, every opportunity that there is, the courts will have to give it full force and effect.

So it will be stronger than the Equal Protection clause. We have in New York an Equal Protection clause. It’s just like the Federal one. We have that. But this provision would be on top of that and would add strength. And if it’s alright I’d like to discuss disability.

Pehme: Yes.

Davis: For just a minute. I don’t know — you guys know – Bill and Morgan know – everyone there knows, but I am disabled. I got polio when I was five years old. I use a wheelchair. In one way I say I feel blessed because as I’ve gotten older, and as everyone gets older, they need more help, you know. The physical aspects of life. As I’ve gotten older and need a little more help, the law has fortunately kept up with me. Bathrooms are accessible, and people work hard about eliminating barriers, so there has been real progress. But I feel strongly that it’s important to include disability in this as well, so that they’re will be a notion of inclusion for disabled, dignity, respect the dignity of the disabled, equal opportunity for the disabled, so that it will add an extra layer of where we should be going on top of the good laws that already exist.

And that’s true of other areas as well. We have good laws about discrimination. We have good laws about the workplace. But we want to add this constitutional protection on top of that that will really move us in the right direction. I’m amazed that this is something the legislature hasn’t done. The need for it has been so obvious for a long time. You would think they would have done it. I and could imagine that might do it even without a convention. But if they don’t do it right away – I’m not waiting around any longer. If they don’t do it right now, it goes on the list for the convention. So if it hasn’t happened, it’s another great reason to have a convention.

And frankly, I have to tell you, I don’t think they’ll do it. I don’t think, the legislature is not willing to be bold, willing to follow our state motto, which is “Ever Forward.” They’re not willing to do that. They like the comfort of the status quo. So I don’t think they’re going to that, and that will be another good reason to have a convention. And it will lead in my view to helping disabled people by creating another mechanism for inclusion.

I have a friend who is a very well-known litigator. A litigator brings cases, in the area of disability rights. He runs an organization called Disability Advocates, who brought the taxi case in New York, brought the emergency preparedness case in New York. Very big, very important cases. And he has told me this will make a great difference to have disability in the constitution as a standard of inclusion and against exclusion, a standard in favor of mainstream. I personally am not a big fan of District 75. Do you guys know what District 75 is?

Morano: I don’t and Evan, I’m just going to ask you to explain it briefly because we’re running out of time.

Davis: District 75 are 57 schools in New York City only for disabled people. I understand it. And it certainly has done a lot of good for a lot of people. But I prefer inclusion. I would like to see more of an effort to move the disabled community out of District 75 and into schools. I went to public school, and that’ the way I was brought up. I was part of regular class, even though I was in a wheelchair. And that’s my own thought of what we should see. And this kind of amendment for the disabled will help to achieve that. And I am all for it.

Transcript of interview with Robbie Kaplan

Samuels  What we’re discussing today revolves around our New York State Constitution, which was last revised in 1894.  And it contains many, many absurd provisions. In the current constitution, there is protection against discrimination based on race, color, creed or religion, and that’s it.  What we are suggesting is that that there be equal rights

In your opinion, if you have one, in a new Equal Rights Amendment, is sexual orientation cover transgender, or should it say sexual orientation and identity?  Do you see any difference?  Do you have any thoughts on that?

Kaplan: I think the safer language to make it clear that you’re covering not only gay and lesbian people but transgender people as well is to cover not only sexual orientation but sexual identity or gender identity.  I wouldn’t have said maybe even three days ago,  this was as big a deal that I can now say it is today, because I’m sure many of your listeners know, it’s been hot in the news the past 24 hours, that the Trump administration intends to rescind certain executive orders that were passed at the end of the Obama Administration to protect transgender kids in schools, who I’m sure you can imagine really suffer terrible, terrible bullying, and terrible repercussions against them in schools throughout the country.  So this issue of our transgender friends and colleagues and neighbors and children frankly, has really become at the fore of what’s being discussed in this country, and frankly, if the Trump Administration does what they say they will do, is sadly going to become a big problem.  Fortunately, we live in New York, and our Governor has already made clear that New York isn’t going to back off on the way it protects transgender kids in schools.  But it’s always better to have that in the Constitution so it’s not at the whim of any particular elected official, but it’s guaranteed for kids for all time.

Samuels:  That’s exactly right.  Whether you know it or now, you’ve made a contribution, because our current draft only uses the word “sexual orientation,” and I think we will now expand that to include identity, and when people come after us, we’re going to blame you.

Kaplan:  It wouldn’t be the first time that happened, so I can take it.

Samuels: Now a different question: Do you think, since we’re talking about the rescinded of Obama’s decision, do you think Obama was on solid legal ground vis-a-vie Title IX, and therefore would his actions have been eventually held up, agreed to by the courts, or do we need something more substantive than a presidential statement?

Kaplan: Well, there’s a case pending right now before the Supreme Court, the Gavin Grim case brought by the ACLU which probably will decide that issue. And particularly, once this order is rescinded, I’m quite confident that the ACLU will argue – I think they already have – that it doesn’t really matter because transgender protections for kids are already covered under Title IX.  And I think they have a very strong argument there. I mean, Title IX is supposed to protect gender expression.  There are cases that say – going back to the hostile work environment, beginning of the hostile environment work law, that says if you treat, for example, a woman differently at work because she’s not feminine enough, she doesn’t wear high heels and lipstick, that violates Title VII, and I think for the same reason the courts are going to hold the exact same kind of considerations apply to transgender kids and they would be protected as well.

Samuels: So you would project that given Trumps orders, that we have a very good chance that the courts will reverse that when it gets decided, and that’s very good news. Morgan, do you want to go next?

Pehme: Some people say that because our constitution already affords New Yorkers equal protection from discrimination that there’s no reason for an Equality for All Amendment.  Can you explain the difference between equal rights and equal protection, and why, if you believe there’s a need for an Equal Rights Amendment, why that would be important to put on the books in the Constitution?

Kaplan: From my own personal experience, I can tell you that our Constitution does not fully protect the equal rights of gay and lesbian New Yorkers.  And the reason I can tell you that story is I’m the one who lost the case.

Samuels: This is the 2006 case?

Kaplan:  It certainly is.  When I was a lawyer, a young person 500 years ago, I think even before they last amended the Constitution, I brought a case in New York, arguing only under the New York State Constitution, that gay men and lesbians should have the right to marry, and I lost that case at the Court of Appeals.  And what the Court of Appeals held is that that right was not protected under the New York State Constitution, and that if there was to be any change in that area, that was matter of the Legislature.   So we have the answer to that question – at least based on Court of Appeals precedent.  And one of the reasons we need this Equal Rights Amendment that we need to make it crystal clear to the Court of Appeals and to the courts that those rights are, in fact, constitutionally protected under the New York State Constitution, which again, in today’s world, in the world of the Trump Administration, the importance of state constitutions and the protections that they give to people is more important than ever.  Justice Brennan, before he died, very powerfully spoke about the importance of state constitutions and state constitutional rights.  It was an issue that Judge Kaye, my mentor, the late Chief Judge Kaye, took up very much in her career.  And no one thought we’d be back to those times, but we are, because we have a Federal Government that wants to take back rights.  And so it’s now the time for the state constitutions to step back in and to protect those rights for all New Yorkers.

Samuels:  Robbie, this is a very important call from our point of view.  I would ask a favor, and I think our listeners would benefit, if you would take a look at the draft of what we’re discussing as an Equal Rights Amendment, and would give us your opinion on whether we are drafting it right.  We are meeting tomorrow with Carolyn Maloney, who is historically on the national level has continually pushed the ERA Amendment, but I think if you would be willing to at least take a look at what we’re drafting, it would be very useful because this is something that we want New York and our state constitution to be a leader nationwide.

Kaplan:  Exactly.  I’d be honored to do so.

Pehme: Robbie, can you give us some real-world examples, you just gave a very startling and powerful one in terms of how the Equal Rights Amendment, our Equality for All Amendment, would affect the LGBTQ community.  Can you talk to us in terms of some palpable impact it would have on the lives of women or disabled New Yorkers who also don’t currently have equal rights in the Constitution?

Kaplan: Well, I’ll give you another example with respect to disabled New Yorkers or kids with learning differences.  Again, during her testimony of the current Education Secretary, Betsy De Vos, there was quite a lot of discussion and debate about what role the Federal Government would have in terms of protecting the ability of students with learning differences to get a full and equal education under the law.  And there was a lot of joking.  Al Franken and others made a lot of jokes about her response.  She didn’t really understand what the law said.

But putting aside the humor of it, it’s a real issue.  I can speak to this.  I have a son who has dyslexia and he needs to have certain kinds of special services to make sure he now reads beautifully.  But if he hadn’t had those services, he would not ever have learned to read.

And so it’s very important, I think, for kids throughout New York State to make sure that they will continue to have those rights.  And again, particularly in a climate when the Federal Government is retracting rights, and taking away funds for schools that provide those kind of services, it’s more important, not only for the state to do so, but to make sure that the state is required to do so, under the constitution.  Again, New York has always been very good about this, but let’s make sure that New York stays very good about this, and that those services are there who need them.

Pehme: Robbie, you were one of the luminaries who make up the Committee for a Constitutional Convention.  Why is it that you support the Yes vote on the Convention here in New York State?

Kaplan: I really think I see this – I’ve already alluded to it – but I see this really much as the legacy in memory of my late, great mentor, Chief Judge Kaye.  I kind of have a tear in my eye as I’m saying this, but the state constitution was an issue that mattered so deeply to her.  She spent so long and worked so hard to re-invigorate and to re-validate the importance of the New York State Constitution.  And she was right to do it then, and it’s probably even more right to do so now, given the climate that we’re in.

So I feel that it’s not only the right thing for all New Yorkers, but I really do that in her memory, in her legacy, of protecting the rights and the freedoms of all New Yorkers, and not having it subject to the particular whims of whatever administration happens to be in power in Washington.

Samuels:  We also have crafted a judicial amendment, and it basically is just a repeat of Judge Kay’s suggestions for years which have been rejected by Albany.  And in our case, if we take either the reorganization of the courts or an expansive, inclusive Equal Rights Amendment, if I thought they could be passed by Governor Cuomo and the legislature, that would be fine.

But there’s no history of major changes being made in Albany, and we think, therefore, the People’s Convention is a potential avenue, either to get it done, or to put pressure on the legislature for us to be more innovative.  So I agree with your thought process.

Kaplan:  I agree with that.  The term “federalism” has kind of come to be a dirty word for liberals, in the sense that it’s only a conservative value, and that’s actually not true.  Actually, the new Dean of Yale Law School just wrote about this, and she’s absolutely right, Heather Gerken, that federalism can be just as much of a tool for progressives as it is for conservatives.

And again, I think particularly when you’re talking about the New York State Constitution, and the great traditions we have on this state, of honoring and respecting all of our citizens, I think it’s very important that we act and try to do this today.

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