Message of Necessity for Immediate Vote

On January 14th, 2013, Governor Andrew Cuomo used a Message of Necessity to force legislators to vote on his gun legislation.

The NY SAFE Act amended the following laws:

  1. correction law
  2. criminal procedure law
  3. domestic relations law
  4. education law
  5. executive law
  6. family court act
  7. general business law
  8. judiciary law
  9. Kendra's Law
  10. mental hygiene law
  11. penal law
  12. surrogate's court procedure act

On March 14, 2012 during a marathon legislative session that stretched into the early morning hours of march 15, 2012 Governor Andrew Cuomo declared four "emergencies" using his power to circumvent the three day transparency requirement with the "message of necessity".  Below are copies of the four messages of necessity:

Independent Redistricting Legislation

Tier VI Pensions

 DNA Database Teacher Evaluations

  

 

A Gubernatorial Cataract Obfuscating Historic Transparency Reform

Origin in Transparency

When adopted the 1894 Constitution introduced Article III with a new concept for transparency that required a 3 day waiting requirement on legislation before final passage in order to secure public comment and prevent last-minute amendments or hasty and careless legislation.[i]  In order to provide for rapid legislation in the face of a public emergency an exception was adopted for those instances where the Governor certified the necessity of immediate passage.[ii]

Amendment of the Message of Necessity

The Constitutional Conventions of 1915 and 1938 both sought to address the indiscriminate use of the message of necessity by Governors. 

In 1915, the Constitution proposed by the Convention to the voters included an outright ban on the message of necessity with the removal of the exception. 

The record reflects that this abuse was considered of paramount importance “I do not think among the important things that we have to do, that there is anything more important than the elimination of this so-called emergency message. Nothing can be done which will tend to secure more deliberative legislation in the future than the doing away with this message.”[iii]  Unfortunately the 1915 Constitution was not adopted by the electorate.

In 1938, the Convention again sought to limit the power of the message of necessity by amending the 1894 Constitution to its present form, to require the Governor to accompany the message of necessity with a certification of “the fact which in his [or her] opinion necessitate an immediate vote thereon.”[iv]

The 1938 Convention Committee was not naive and even noted, “it is the hope of the members of the committee that if the Governor is required to certify facts which in his opinion constitute an emergency, it will not fall into a pro forma signing of a printed message…”[v]

As history would show, not even the 1938 amendment to this provision of the Constitution could stop the abuse by a Governor of the message of necessity.

Judicial Review

In 2005 and before that in 1973, the New York State Court of Appeals, the highest state court, has held that “the sufficiency of the facts stated by the Governor in a certificate of necessity is not subject to judicial review” going as far as to affirm that “the sufficiency of the ‘facts’ stated by the Governor in a message of necessity ‘is unassailable’” (emphasis added).[vi]

The Court of Appeals upheld this position while reviewing a messages of necessity that said "[b]ecause this bill has not been on your desks in its final form for three calendar legislative days, this message is necessary to permit its immediate consideration” that it determined to be pro forma.

The Court's Logic

The Court of Appeals sought to preserve the delicate system of checks and balances on which our democracy is based reasoning “the Legislature has its own remedy for an inadequate certificate, since if it does not think the Governor's reasons are good ones, it is not required to act in fewer than three days—or even to consider the bill at all; and the consequences of judicial second-guessing of the Governor's and the Legislature's choice to expedite passage can be draconian … any statute, no matter how important to the state, would have to be thrown out by the courts if the facts stated in the certificate of necessity that permitted its prompt passage were found insufficient.”[vii]

In a dissenting opinion in 2005, Chief Judge Kaye states that the Court’s decision “honors neither the words, nor the surprisingly long and substantial history, of this constitutional provision.”  Kaye goes on to condemn the Governor stating “I cannot agree that the failure of the Governor to certify facts which in his or her opinion necessitate an immediate vote on the bill when issuing a message of necessity is of no consequence,” and condemns the legislature stating “[r]ather, when the constitutional command is clear, it may not be waived even with the concurrence of the Legislature.”

Kaye quite clearly dissents “[t]o sanction the [pro forma message of necessity] is to read the provision out of the Constitution. This, not the Governor, the Legislature or this Court — nor all three together — is empowered to do.”

Even in the face of her strong positions against the unconstitutional use of the message of necessity, Kaye ultimately concurs with the majority because it has become longstanding practice and to avoid unsettlement, stating:

I concur in the result, however, because — although the very purpose of the amendment at issue here was to avoid pro forma messages of necessity — it has nevertheless become the practice of government that messages like the one before us have been routinely used. To strike or put in doubt legislation enacted on such messages would lead to great unsettlement. Thus, while I conclude that the instant message failed to comply with the constitutional mandate of article III, § 14, I would give this ruling prospective effect only (citations omitted).

In closing Chief Judge Kaye’s dissent begs future Governors to do the right thing despite the Court’s reluctance to force them to do so.

Finally, I note that article III, § 14 of the Constitution does not ask much of the Governor when a message of necessity is in order. Any facts which in the Governor's opinion necessitate an immediate vote will satisfy the constitutional test. I therefore hope that, despite the Court's ruling today, the Governor will in the future take the simple step of including in any message of necessity the minimal statement of facts that compliance with the Constitution requires.

Conclusion

Judicial challenges have failed to reform the century’s old practice of abusing the message of necessity in order to sidestep the original Constitutional requirement for transparency and public comment. 

With the judiciary’s refusal to intervene one remaining solution is Constitutional Change including adopting the 1915 approach of eliminating the message of necessity or tying the message of necessity to an actual emergency by moving it into Article III Section 25 that  currently empowers the legislature in “periods of emergency caused by enemy attack or by disasters (natural or otherwise)…”

In the interim it is incumbent upon the legislature, the voters and the media also known as the fourth estate to enforce the simple request of Chief Judge Judith Kaye to include “a minimal statement of fact” or better yet to indulge in restraint and only use the message of necessity in actual emergencies like the attack on our nation on September 11th or Hurricane Irene.


[i] Maybee v. State of N.Y., 828 NE 2d 975, 418 (N.Y. Ct. of Appeals 2005).

[ii] Id.

[iii] Maybee v. State of N.Y., 828 NE 2d 975 (N.Y. Ct. of Appeals 2005) citing 1 Revised Rec, 1915 NY Constitutional Convention, at 824

[iv] N.Y. Const. Art. III, §14, as amended to include both genders in 2001.

[v] Maybee v. State of N.Y., 828 NE 2d 975 (N.Y. Ct. of Appeals 2005) citing 2 Revised Rec, 1938 NY Constitutional Convention, at 1435.

[vi] Maybee v. State of N.Y., 828 NE 2d 975 (N.Y. Ct. of Appeals 2005)

[vii] Id.

 

 

 

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