Bill S1163-2013

Authorizes the governor to fill vacancy in the office of lieutenant-governor on confirmation of both houses of the legislature

Authorizes the governor to fill vacancy in the office of lieutenant-governor on confirmation of both houses of the legislature; allows the governor to leave the state without transmitting power to lieutenant-governor and establishes the process for lieutenant-governor to act as governor during incapacitation of the governor.

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  • Feb 19, 2014: OPINION REFERRED TO JUDICIARY
  • Jan 13, 2014: TO ATTORNEY-GENERAL FOR OPINION
  • Jan 8, 2014: REFERRED TO JUDICIARY
  • Feb 6, 2013: OPINION REFERRED TO JUDICIARY
  • Jan 11, 2013: TO ATTORNEY-GENERAL FOR OPINION
  • Jan 9, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S1163                REVISED 1/8/13

TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to sections 5 and 6 of article 4 of the constitution, relating to the filling of vacancies in the office of lieutenant-governor and the powers and duties of such office

PURPOSE: To adopt for the New York constitution's provisions governing the selection and powers of the lieutenant-governor corresponding provisions of the U.S. constitution governing the vice president.

SUMMARY OF PROVISIONS:

Section 1 amends article 4, section 5, to allow the governor to leave the state without transmitting executive power to the lieutenant-governor. This section also authorizes the governor to temporarily transmit executive power to the lieutenant-governor by written instrument transmitted to the legislative leaders, and to provide a process by which the lieutenant-governor, cabinet and Legislature can address conflicts over apparent incapacity of the governor.

Section 2 amends article 4, section 6, to direct that the governor shall fill a vacancy in the office of lieutenant-governor for the duration of the term by appointment subject to confirmation by both houses of the Legislature.

Section 3 provides the constitutionally prescribed mechanism for legislative reconsideration for second passage.

JUSTIFICATION: This measure would modernize the New York constitution with regard to the office of lieutenant-governor. This measure takes as its model the Twenty-Fifth Amendment to the U.S. Constitution, which the New York Legislature ratified on March 14, 1966 to provide for interim selection of the vice president of the united States and for the office's powers if the president is incapacitated. Adopted by several states nearly five decades ago, this approach offers New York a clear, well-tested and fair way to address these matters of the highest importance to effective governance of the Empire State.

1. INTERIM SELECTION. In SKELOS V. PATERSON, 13 N.Y.3d 141 (2009), the Court of Appeals correctly held that current law authorizes the governor to fill a vacancy in office of lieutenant-governor by executive appointment, without need for legislative confirmation. As a prospective policy matter, the instant amendment takes cognizance of the Twenty-Fifth Amendment to the U.S. Constitution, ratified by the New

York Legislature in 1966, which requires bicameral confirmation of presidential appointment of a vice president in the event of a vacancy in that office. See U.S. Const., 25th Amend, § 2. This process was the one by which New York Governor Nelson Rockefeller was appointed and confirmed as vice President in 1974. Grafting this same process onto the New York State Constitution would provide constitutional assurance that a lieutenant governor standing next in line to the executive power would have legitimacy to act with assent of voters' elected representatives -- a protection that, as the Court of Appeals correctly held, does not exist under current law. Such is the gap that this measure seeks to fill.

2. REPEALING OUTDATED RESTRAINTS ON GUBERNATORIAL TRAVEL. This amendment would eliminate the New York Constitution's arcane provision that the lieutenant-governor automatically becomes acting governor if the governor leaves the state. In a technologically integrated world of telephones, e-mail and video conferencing, there is no legitimate reason that the governor automatically cedes power simply by leaving the territorial confines of the state. Likewise, in a global economy in which New York must compete for jobs and investments, New York's governor occasionally must travel and there should be no constitutional limit on his or her ability to do so. If extended travel or other reasons may impel the governor to temporarily cede power for a period of time, other Provisions of this amendment would allow the governor to do so.

3. TEMPORARY SUCCESSION BY EXECUTIVE LETTER. This measure would adopt the Twenty-Fifth Amendment's approach where the executive anticipating temporary incapacity (e.g. surgery) wishes to cede power for the duration of his or her incapacity. Under the U.S. Constitution, the president may temporarily cede power to the vice president by letter transmitted to the respective leaders of the U.S. Senate and House, then reclaim power by a second letter. See U,S. Const., 25th Amend., § 3. Several presidents used this provision when undergoing anesthesia (e.g. President Reagan in 1985, President George W. Bush in 2002 and 2007). A corresponding amendment to the New York Constitution would ensure similar uninterrupted clarity in the highest office of the state.

4. TEMPORARY SUCCESSION BY JOINT DECLARATION. This measure would adopt the Twenty Fifth Amendment's approach in the event that the governor is incapacitated but has not transmitted power as above. Under the U.S. Constitution, if the president is incapacitated and cannot discharge the duties of office, the vice president and a majority of the cabinet jointly may certify that fact to Congress, after which the vice president assumes executive power until the president transmits a letter re-assuming the duties of office. See U.S. Const., 25th Am.,4. If the president transmits such a letter and the vice president and a majority of the cabinet disagree within four days, then Congress must decide the issue and may sustain the vice president's authority by two- thirds vote of both Houses. See id. This balanced process fills a key constitutional gap in which it

otherwise may be unclear who holds executive power, or whether the officer wielding it acts with broad legitimacy. Any such gap or conflict in executive leadership is unacceptable in an advanced democracy and would trigger a constitutional crisis at a moment already fraught with the exigencies of executive incapacity. The New York Constitution contains this same gap that the Twenty Fifth Amendment filled for the U.S, Constitution, and its remedy should be constitutionalized in the same balanced, direct and practical way that the Twenty Fifth Amendment provides for our federal government. These approaches were exhaustively vetted nationwide and specifically approved by the New York Legislature as part of the 1965-1967 ratification process. In the decades since, experience has shown that this path guides our nation's leaders as intended, ensuring stability and certainty for the highest office of the land during critical moments that most require clarity and dispatch. This measure for New York State would ensure popular legitimacy in all of these fundamental aspects of the executive power, while honoring our constitution's axiom that the executive power must flow only by vote of the people or their elected representative.

LEGISLATIVE HISTORY: 2011-2012: S.589 Referred to the Senate Committee on the Judiciary 2009-2010: S.7682/A.10952 Passed the Senate/Remained in the Assembly Committee on Judiciary

FISCAL IMPACT: None.

EFFECTIVE DATE: Resolved (if the Assembly concur), That the foregoing amendment to the first regular legislative session convening after the next general election of members of the assembly, and, in conformity section 1 of article 19 of the constitution, be published months previous to the time of such election.


Text

STATE OF NEW YORK ________________________________________________________________________ 1163 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. BRESLIN, ADAMS, KRUEGER, PERALTA, SAMPSON, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to sections 5 and 6 of article 4 of the constitu- tion, relating to the filling of vacancies in the office of lieuten- ant-governor and the powers and duties of such office Section 1. Resolved (if the Assembly concur), That the third undesig- nated paragraph of section 5 of article 4 of the constitution be amended to read as follows: 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 as governor until [the inability shall cease or until] the term of the governor shall expire. WHENEVER THE GOVERNOR TRANSMITS TO THE TEMPORARY PRESIDENT OF THE SENATE AND SPEAKER OF THE ASSEMBLY HIS OR HER WRITTEN DECLARATION THAT HE OR SHE IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OR HER OFFICE, AND UNTIL HE OR SHE TRANSMITS TO THEM A WRITTEN DECLARATION TO THE CONTRARY, SUCH POWERS AND DUTIES SHALL BE DISCHARGED BY THE LIEUTENANT- GOVERNOR AS ACTING GOVERNOR. WHENEVER THE LIEUTENANT-GOVERNOR AND A MAJORITY OF EITHER THE PRINCIPAL OFFICERS OF THE EXECUTIVE DEPARTMENT OR OF SUCH OTHER BODY AS THE LEGISLATURE MAY BY LAW PROVIDE TRANSMIT TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY THEIR WRITTEN DECLARATION THAT THE GOVERNOR IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OR HER OFFICE, THE LIEUTENANT-GOVERNOR SHALL IMME- DIATELY ASSUME THE POWERS AND DUTIES OF THE OFFICE AS ACTING GOVERNOR. THEREAFTER, WHEN THE GOVERNOR TRANSMITS TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY HIS OR HER WRITTEN DECLARA- TION THAT NO INABILITY EXISTS, HE OR SHE SHALL RESUME THE POWERS AND DUTIES OF HIS OR HER OFFICE UNLESS THE LIEUTENANT-GOVERNOR AND A MAJORI- TY OF EITHER THE PRINCIPAL OFFICERS OF THE EXECUTIVE DEPARTMENT OR OF EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD89013-01-3 S. 1163 2 SUCH OTHER BODY AS THE LEGISLATURE MAY BY LAW PROVIDE TRANSMIT WITHIN FOUR DAYS TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY THEIR WRITTEN DECLARATION THAT THE GOVERNOR IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OR HER OFFICE. THEREUPON THE LEGISLATURE SHALL DECIDE THE ISSUE, ASSEMBLING WITHIN FORTY-EIGHT HOURS FOR THAT PURPOSE IF NOT IN SESSION. IF THE LEGISLATURE, WITHIN TWENTY-ONE DAYS AFTER RECEIPT OF THE LATTER WRITTEN DECLARATION, OR, IF THE LEGISLATURE IS NOT IN SESSION, WITHIN TWENTY-ONE DAYS AFTER THE LEGISLATURE IS REQUIRED TO ASSEMBLE, DETERMINES BY TWO-THIRDS VOTE OF BOTH HOUSES THAT THE GOVERNOR IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OR HER OFFICE, THE LIEUTENANT-GOVERNOR SHALL CONTINUE TO DISCHARGE THE SAME AS ACTING GOVERNOR; OTHERWISE, THE GOVERNOR SHALL RESUME THE POWERS AND DUTIES OF HIS OR HER OFFICE. S 2. Resolved (if the Assembly concur), That the third, fourth and fifth undesignated paragraphs of section 6 of article 4 of the constitu- tion be amended to read as follows: In case of vacancy in the offices of both governor and lieutenant-gov- ernor or if both of them shall be impeached[, absent from the state] or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected. In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be [impeached, absent from the state or otherwise] unable to discharge the duties of office, the temporary pres- ident of the senate shall perform all the duties of lieutenant-governor [during] UNTIL such vacancy BE FILLED or DURING THE PENDENCY OF SUCH inability. IN CASE OF THE REMOVAL OF THE LIEUTENANT-GOVERNOR ALONE FROM OFFICE OR OF HIS OR HER DEATH, RESIGNATION, IMPEACHMENT OR ASCENSION TO GOVERNOR, THE OFFICE OF LIEUTENANT-GOVERNOR SHALL BE FILLED FOR THE REMAINDER OF THE TERM BY APPOINTMENT OF THE GOVERNOR, SUBJECT TO CONFIR- MATION OF SUCH APPOINTMENT BY MAJORITY VOTE OF EACH HOUSE OF THE LEGIS- LATURE. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the tempo- rary president of the senate shall be [absent from the state or other- wise] unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability. S 3. Resolved (if the Assembly concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

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