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 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:
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.