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

• Author: Galie, Peter J.
• Position: V. The NY Safe Act and the Message of Necessity: A Case through VII. Conclusion, with footnotes, appendices, and table, p. 2260-2299

5. THE NY SAFE ACT AND THE MESSAGE OF NECESSITY: A CASE STUDY

   The passage of the New York Secure Ammunition and Firearms Enforcement Act provides exemplary evidence of the extent to which the message of necessity has been transformed from a procedure allowing for limited exceptions in exiguous circumstances to the three-calendar day requirement into a device that has enhanced the governor's role in the legislative process.

   The NY SAFE Act resulted in significant changes to ten consolidated laws and one unconsolidated law, including, inter alia:

   1. requiring mental health professionals to report patients likely to engage in serious harm to themselves or others, which may result in the patient's gun license being suspended and any firearms being removed; (248)

   2. redefining "assault weapons" to include semi-automatic pistols and rifles with detachable magazines and one military style feature, as well as semi-automatic shotguns with one military style feature, (249)

   3. banning the purchase of assault weapons after the effective date of the law, requiring persons who own assault weapons prior to the effective date of the law to register them and restricting the sale of such "grandfathered" assault weapons; (250)

   4. limiting the capacity of magazines to seven rounds, reduced from the previous ten round limit, limiting to seven the number of rounds that can be loaded into a "grandfathered" ten round magazine, and banning possession of certain other high-capacity magazines; (251)

   5. requiring owners of handguns or assault rifles to recertify their permit every five years; (252)

   6. requiring all gun transfers between private parties other than family members to be conducted through a federal firearms licensee; (253)

   7. increasing penalties for certain gun offenses; (254)

   8. extending and strengthening the ability of judges to require individuals to regularly undergo psychiatric treatment; (255) and

   9. requiring the safe storage of firearms in houses having people who are barred from possessing such firearms. (256)

   The final hours before passage of the NY SAFE Act depict a whirlwind of activity. (257) On January 14, 2013, the bill, S2230, was printed, and Senate Republican Conference Leader Dean Skelos and Independent Democratic Conference Leader Jeffrey Klein agreed to present the bill to the members of the Senate for immediate passage. (258) At approximately 11 p.m. that evening, Senators Skelos and Klein released copies of the bill to the Senate, and asked the Senate to vote on it. (259) Deputy Republican Conference Leader for Legislative Operations Tom Libous, who was conducting the floor at the time, asked the Senate President, Lieutenant Governor Robert Duffy, if there was a message of necessity at the desk. (260) The President responded that there was a message. (261) No senators requested it and the President did not offer a copy of the message for the senators to review, nor was the message read. (262) The Senate Rules require that a message of necessity be approved by a vote of the senators, (263) and so a voice vote was taken. (264) Remarkably, the Senate Journal records no response to the question of any opposition to the acceptance of the message of necessity. (265) Immediately following the acceptance of the message, the President instructed the Senate Secretary to read the last section of the bill, and the Secretary read:

   "THE SECRETARY: Section 58. This act shall take effect immediately." (266)

   The roll was then called and the bill was approved by a vote of 43-18, with numerous senators explaining both affirmative and negative votes on the bill. (267) The total time that the Senate considered and approved the bill was approximately twenty minutes. (268)

   On Tuesday, January 15, 2013, at approximately 11:20 a.m., the bill was taken up in the Assembly. (269) Unlike the Senate, the Assembly actually read the message of necessity issued by Governor Andrew Cuomo, which gave as the "facts" necessitating suspension of the three-day rule the following:

   Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the State in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase, and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State. For this reason, in addition to enacting a comprehensive package of measures that further protects the public, immediate action by the Legislature is imperative. (270) Debate on the bill was then held, with numerous assembly members objecting to the speed with which the legislation was being pursued. (271) The most vocal critic of the process was Assemblyman Steven F. McLaughlin, who stated:

   We've moved too quickly. We have not analyzed this appropriately, and we now find a situation where we're amending all kinds of law in New York State and already seeing the flaws in this. We could've and should've waited and given this the proper respect that it deserves. You can tell we're on a three- to four-hour debate here. It's a big deal, people, and we should've given this the respect it deserves and let the people of New York weigh in on this. To do anything other than that was an abuse of power and it was disrespectful. We could have rejected the message of necessity. We have the ability to do it. We could have put the brakes on and just said, Wait a minute, and we chose not to. I think that is a mistake that this Legislature has made repeatedly now, where we just move too quickly. All of the big things we do seem to get done on a message of necessity. That is not the essence of good government. (272) At approximately 3:45 p.m., Acting Speaker Jeffrion Aubry asked the Clerk to read the last section of the bill. (273) She read: "[t]his act shall take effect immediately." (274) The vote was then taken, and following several members explaining their votes, (275) at approximately 4:30 p.m., the bill was announced as approved by a vote of 104-43. (276) The same day, at 5:10 p.m., Governor Cuomo signed the bill into law. (277)

   As noted above, both the Senate Secretary and the Assembly Clerk were instructed to read the last section of the bill. Each of them read the same line: "[t]his act shall take effect immediately." (278) This statement was not entirely accurate. The act contains sixty-two sections, with some sections having letters and numbers, such as 46-a. (279) Section 57 of the act is a severability provision and section 58 provides the effective dates. (280) Of the remaining sixty sections of the act, fifty-four of them became effective sixty days after enactment, three sections take effect one year after enactment, and two sections contains multiple effective dates. (281) The only provision that took effect immediately is the one prohibiting the in-state acquisition of those firearms defined as assault weapons. (282) The provision requiring owners of certain firearms to register them within one year was to take effect ninety days after enactment, (283) thus making April 15, 2014 the deadline for registration.

   When asked by reporters why the gun control bill had to be passed overnight with no debate or public input, Governor Cuomo responded: "I'm not going to give the public notice, 'I'm going to do an assault weapons ban in three days. Quick, run out and buy an assault weapon before the ban went into place." (284) In addition to the argument that quick action was necessary to prevent opposition from mobilizing, Cuomo offered another justification, one that, on its face, seemed inconsistent with his initial response to the defense that the legislation was sprung on the public with little publicity or discussion for the purpose of forestalling a large-scale, last minute purchase of such weapons:

   "I started talking about this before there was any suggestion that there was any report coming out by ... vice president [Biden].... We were talking about this in December," and ... there was speculation in September about having a special session to consider gun-control legislation, "so this predated all of that." (285)

   Of course, such notice would have had the effect of giving potential gun buyers six months to stock up.

   The rolling time frame in which most of the provisions of the SAFE Act would take effect has resulted in a significant rise in the purchase of handguns and the sale of detachable ammunition magazines holding more than seven rounds, as that ban was not made effective until ninety days after passage, or April 15, 2013. (286) Richard Azzopardi, a spokesman for the governor, countered: "leaders [of the legislature] asked for a message of necessity because they agreed with us that the SAFE Act immediate ban on assault weapons should be just that. What you described proves our point that there would have been a run on these dangerous weapons if we delayed action.'" (287) As with other cases described above, Governor Cuomo's justification for this message--the facts constituting the "necessity"--amounts to if we want to accomplish the purposes of the bill, the sooner the better.

   Cuomo's response to criticisms of the use of the messages is revealing: "[i]t's a flawed process." (288) Referring to legislators, he stated that "[o]ne of the dysfunctions of Albany is they never stop.... They never conclude, they don't act." (289) He continued: "[g]overnment is supposed to function.... It's not a debating society." (290) "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." (291) Concerning the gun control bill specifically, Cuomo asserted that his actions were justified by the will of the people: "I think the people of the state said they want something done and they want it done...