BILL NUMBER:S1330

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
trans- mitted 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 constitutionalized 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:

2013-2014: S. 1163 Referred to the Senate Judiciary Committee.
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.