"It ain't necessarily so": the governor's "message of necessity" and the legislative process in New York.

• Author: Galie, Peter J.
• Position: I. Introduction through IV. Messages of Necessity and the Courts, p. 2219-2260

I think the people of the state said they want something done and they want it done now ... Let's act. (1)

--Governor Andrew Cuomo

The bill was muscled through with disturbing speed after days of secret negotiations and a late-night vote Monday by state senators who had barely read the complicated measure before passing it. (2)

--The New York Times

Three days of debate, everyone has an opinion, it's entirely transparent, [and] we never reach resolution ... I get 100 percent for transparency. I get zero for results. (3)

--Governor Andrew Cuomo

A legislature that rushes critical, controversial bills to passage is one that deliberately excludes the public. A legislature that cannot wait three days to revise a mission statement governs by crisis. This must stop. (4)

--Syracuse Post Standard

Among the qualities we use to assess the performance of our state legislature are "high 'visibility,' performing its duties responsibly and in such a fashion that the public can oversee and judge its actions; ... its rules permit majority rule while protecting against arbitrary action; ... [and] it has sufficient time and resources for informed deliberation. (5)

--Patricia Shumate Wirt

I have come to the conclusion that the making of laws is like the making of sausages--the less you know about the process the more you respect the result. (6)

--Unnamed Member of the Illinois State Legislature

1. INTRODUCTION

   Among the various restrictions on the legislative process found in the New York Constitution, (7) none has raised more controversy or received more attention than the provision authorizing the governor to issue a message of necessity to suspend the constitutional requirement that legislation be on the desks of legislators in final form at least three calendar days before final passage. Both the three-day requirement and the message of necessity provision were added to the constitution by the 1894 Constitutional Convention. (8) Following amendments in 1938 and 2001, the section, Article III, section 14, reads as follows:

   No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage; nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature; and upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final passage shall be taken immediately thereafter, and the ayes and nays entered on the journal. (9) The three-day rule, one of a number of constitutional restrictions imposed on the legislature during the nineteenth century, (10) was aimed at preventing hasty, ill-considered, and one-sided legislation. At the same time, allowing the legislature to bypass the three-day rule through the message of necessity enables the state government to respond quickly when extraordinary circumstances justify a waiver of the required public airing of legislation before final passage.

   Unlike several other constitutionally prescribed messages that the governor is authorized to issue, (11) the Article III message of necessity does not require a vote by the house in question to accept the message. (12) Nor does it require that an "emergency" exists. (13) Messages allowing suspension of the three-day requirement must certify that facts exist which "necessitate an immediate vote." (14) The absence of stringent standards for the issuance of messages of necessity has resulted in practices that have frustrated the original intent of the three-day aging requirement. During the thirty-year period from 1975 through 2004, over ten percent of all legislation in New York State was enacted pursuant to messages of necessity, (15) often containing no "facts" other than a description of the bill along with a statement that the bill was passed pursuant to a message of necessity. (16) The overwhelming majority of these messages were issued at the end of the legislative session. (17) Some of these late considerations were for bills that legislators knew had little chance of adoption in both houses. They served to "satisfy" various constituent interests at election time. (18) The laws that did pass through the use of such messages often involved less than "pressing' issues, such as revising the mission statement of the Office of Mental Retardation and Developmental Disabilities, (19) creating the tattoo and body piercing regulation and permit fund, (20) and naming the multipurpose room at the state veterans' home in Batavia. (21)

   Although the number of laws enacted pursuant to messages of necessity has decreased during the last ten years, (22) controversy over use of the procedure has not. In the last three years, messages of necessity have been used to pass controversial laws that have allowed same-sex marriage, (23) instituted a property tax cap, (24) implemented rent control legislation, (25) established a redistricting reform commission, (26) mandated teacher evaluations, (27) and created a new government employees pension tier. (28) The most explosive issue, however, has been the passage of the NY SAFE Act, (29) a mid-session gun-control bill adopted in January of 2013. (30)

   These developments, along with a judiciary that has declined the invitation to subject the propriety of messages of necessity to judicial scrutiny, have intensified the calls for constitutional reform. New York's aging and message of necessity provisions raise several questions. Is a constitutional bill aging requirement needed or should the legislative process be solely governed by legislative rules? Should an aging requirement include a bypass mechanism and, if so, should that mechanism be placed in the hands of the governor? Should a supermajority of legislators be required to bypass an aging requirement? Is there constitutional language that could be used to make the bill aging provision more faithful to its original intent and more amenable to judicial policing?

   This article will examine the New York State Constitution's bill aging and message of necessity provisions. First, the constitutional history of these provisions will be examined. Second, the article will review how governors have used the message since 1938, when the last significant changes to the provisions were enacted. The third section of the article will focus on the jurisprudence of the New York Court of Appeals in interpreting the message of necessity provision. The next section provides a case study of the use of a message of necessity in the enactment of the NY SAFE Act. The Article will conclude with an examination of proposals for reforming the procedure.

2. STATE CONSTITUTIONAL HISTORY OF THREE-DAY REQUIREMENT AND MESSAGE OF NECESSITY

   The 1846 Constitutional Convention was the first in New York to address the issue of hasty and one-sided legislation. A "[R]eport from [the] [C]ommittee ... on the [P]owers and [D]uties of the [L]egislature" contained a section that would have required three readings in each house and the presence of two-thirds of all members during the last reading and at the final vote. (31) Although these recommendations were not adopted, the constitution adopted by the convention included three new requirements to govern the legislative process which remain in the present constitution: no bill could be passed unless approved by a majority of all members elected to each house of the legislature; (32) the vote on final passage of a bill was required to be taken immediately upon its last reading; (33) and the ayes and nays of a vote were required to be entered on the journal. (34) No convention discussion was reported on these measures. The published accounts of the debates were compiled by reporters for various newspapers of the day, and consist of summaries rather than transcripts. The Poletti Report suggests that the purpose of taking a vote immediately after the bill was read was "to prevent the practice of log-rolling, of having three or four bills after their third reading laid upon the table until a group in the Legislature could gather sufficient force and by their combination to 'log-roll' them through all at once." (35)

   1867-1868 Constitutional Convention

   The 1867 Constitutional Convention also addressed the problem of bills being passed without sufficient consideration, and debated amendments that would have prohibited bills from being introduced into either house of the legislature during the last five days of the session (36) and would have provided that no bill could pass either house of the legislature until five days elapsed after its introduction (37) (with one delegate proposing an amendment that would have allowed the waiting period to be bypassed upon the assent of two-thirds of the members of that house). (38) The debates over a variety of reform proposals demonstrated to some of the delegates the difficulties involved in attempts to regulate the legislative process by constitutional provision. Reflecting on one of these attempts, delegate James A. Bell expressed the frustration felt by other delegates: "It is impossible to do so by a constitutional enactment. I think we have spent sufficient time in endeavoring to perfect that provision. From the nature of the case, it cannot be perfected." (39) Other delegates thought such provisions manifested an unwarranted distrust of the legislature and, by implication, the people: "May we not safely trust the majority of the Legislature in this matter, as in every other law which they pass?" (40) Ultimately, the proposed constitution included one...