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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S589-2011 Actions

• Feb 8, 2012: OPINION REFERRED TO JUDICIARY
• Jan 9, 2012: TO ATTORNEY-GENERAL FOR OPINION
• Jan 4, 2012: REFERRED TO JUDICIARY
• Apr 27, 2011: OPINION REFERRED TO JUDICIARY
• Jan 14, 2011: TO ATTORNEY-GENERAL FOR OPINION
• Jan 5, 2011: REFERRED TO JUDICIARY

S589-2011 Memo

BILL NUMBER:S589

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 constitution-
alized 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:
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 concurs), 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.

S589-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     589

                         2011-2012 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 5, 2011
                                 ___________

  Introduced  by Sens. BRESLIN, ADAMS, DUANE, KRUEGER, OPPENHEIMER, PERAL-
    TA, 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.
                                                             LBD89079-01-1

 S. 589                              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.