NY State Senate Bill 2019-S8466

Senate Bill S8466

2019-2020 Legislative Session

Restores the legislative checks and balances to any emergency declaration that exceeds 45 days and ensures judicial due process rights for any action that impairs fundamental constitutional rights; repealer

download bill text pdf

Archive: Last Bill Status - In Senate Committee Veterans, Homeland Security And Military Affairs Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2020	referred to veterans, homeland security and military affairs

2019-S8466 (ACTIVE) - Details

See Assembly Version of this Bill:: A10546
Current Committee:: Senate Veterans, Homeland Security And Military Affairs
Law Section:: Executive Law
Laws Affected:: Rpld §2, Chap 23 of 2020; amd §29-a, Exec L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S1749, A4907
2023-2024: S1117, A1953

2019-S8466 (ACTIVE) - Summary

Restores the legislative checks and balances to any emergency declaration that exceeds forty-five days and ensures judicial due process rights for any action that impairs fundamental constitutional rights by limiting the powers of the governor to suspend laws during a state disaster emergency and requiring a specification and explanation of which municipalities are effected by such suspension of laws.

2019-S8466 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8466

SPONSOR: BORRELLO
 
TITLE OF BILL:

An act to repeal section 2 of chapter 23 of the laws of 2020, amending
the executive law relating to issuing by the governor of any directive
necessary to respond to a state disaster emergency; and to amend the
executive law, in relation to restoring the legislative checks and
balances to any emergency declaration that exceeds forty-five days and
ensures judicial due proceeds rights for any action that impairs funda-
mental constitutional rights

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill requires every emergency declaration to be based on a county-
by-county analysis, restricts state emergency declarations to 45 days
unless an extension is approved by the State Legislature, allows County
Executives or the Mayor of New York City to request termination of a
state of emergency related to their jurisdiction, and requires due proc-
ess protections for any actions that impair fundamental constitutional
rights.

 
SUMMARY OF PROVISIONS:

Section 1. Repeals certain changes to the executive law made by chapter
23 of the laws of 2020.

Section 2. Makes amendments to the governor's emergency powers, includ-
ing:

29-a(1): removes the governor's authority to issue directives within an
executive order and requires every executive order that includes a
suspension of statute to specify within the order the county or counties
to which it applies and a rationale for such application thereto.

29-a(2): requires the legislature to authorize, by concurrent resol-
ution, an extension for a gubernatorial executive order issued under
section 29-a of the executive law beyond an initial period of 45 days.

29-a(5): allows chief executives of a county, or mayor of NYC, to
request the termination of an executive order issued by the governor as
it applies to their respective political subdivision; as well as provid-
ing parameters for responses by the governor to such requests.

29-a(6): requires the governor within each executive order to include an
administrative process by which an individual or entity may file for a
review of any action impairing Constitutional rights, and authorizes an
individual to appeal from a final administrative determination made in
the course of such a review in the courts.

Section 3. Effective date.

 
JUSTIFICATION:

The Executive Law that authorizes the Governor to declare a state-of-em-
ergency has several restrictions, including a requirement that all
declarations be consistent with the State and federal constitutions,
involve the "minimum deviation" from existing law, and involve experts
to help "avoid needless adverse effects." During the COVID-19 Pandemic,
these restrictions were ignored. This legislation is necessary to
restore balance back to the New York State Legislature and local govern-
ments by implementing the following reforms:

1. County-by County Declaration. All state-of-emergency declarations
must be done on a county-by-county basis rather than statewide, with a
detailed explanation for each county based on the specific facts and
circumstances of such county justifying the emergency declaration.

2. Limited Duration. All emergency declarations must automatically end
within 30 days but could be extended by the governor for an additional
15 days. No other extension can occur unless the extension is authorized
by the State Legislature.

3. Local Authority. The chief executive officer of a county or mayor of
New York City can request, upon 15 days' notice, that the governor
terminate any state-of-emergency that applies to their respective county
or city. If the governor does not grant the request, the governor must
set forth with particularity the reasons why the request was denied
based on the specific demographics, data, or other information and char-
acteristics related to that specific county or city. The affected county
or New York City can then seek judicial review of the governor's deter-
mination, which review shall be heard by the Supreme Court within such
political subdivision on an expedited basis. The governor will have the
burden within 5 days after the initiation of the litigation of proving
with clear and convincing evidence that the state-of-emergency should
continue with respect to that particular county or New York City. A
judicial decision shall be rendered within 15 days after the service of
process upon the Attorney General and Governor.

4. Due Process. Any person, business, or entity whose constitutional
rights were impaired by any Executive Order can seek administrative and
judicial review of the applicability thereof.

The COVID-19 Pandemic has demonstrated that that governor's current
state of emergency powers are too broad. Since the governor first
declared a state of emergency on March 7, 2020, he has issued numerous
executive orders that have shut down the economy of the entire state and
interrupted the daily lives of all New Yorkers, even in regions with few
COVID-19 cases and hospitalizations. This legislation is necessary to
allow the governor to immediately act during periods of emergency but
not unilaterally legislate through continuous extensions of executive
orders. This legislation will restore legislative authority and our
system of checks and balances

 
EFFECTIVE DATE:
30 days after it shall become law.

2019-S8466 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8466
 
                             I N  S E N A T E
 
                               June 3, 2020
                                ___________
 
 Introduced  by Sen. BORRELLO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Veterans, Homeland Securi-
   ty and Military Affairs
 
 AN ACT to repeal section 2 of chapter 23 of the laws of  2020,  amending
   the executive law relating to issuing by the governor of any directive
   necessary  to  respond to a state disaster emergency; and to amend the
   executive law, in relation to restoring  the  legislative  checks  and
   balances to any emergency declaration that exceeds forty-five days and
   ensures  judicial  due  proceeds  rights  for  any action that impairs
   fundamental constitutional rights
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 2 of chapter 23 of the laws of 2020, amending the
 executive law relating to issuing  by  the  governor  of  any  directive
 necessary to respond to a state disaster emergency, is REPEALED.
   § 2. Section 29-a of the executive law, as added by chapter 640 of the
 laws of 1978, subdivision 1 as amended by section 7 of part G of chapter
 55 of the laws of 2012, is amended to read as follows:
   § 29-a. Suspension of other laws. 1. A. Subject to the state constitu-
 tion, the federal constitution and federal statutes and regulations, the
 governor  may by executive order temporarily suspend specific provisions
 of any statute, local law, ordinance, or orders, rules  or  regulations,
 or  parts  thereof,  of any agency during a state disaster emergency, if
 compliance with such provisions would prevent, hinder, or  delay  action
 necessary to cope with the disaster.
   B.  EVERY  ORDER  DIRECTING  THE  TEMPORARY SUSPENSION OF ANY STATUTE,
 LOCAL LAW, ORDINANCE, OR ORDER, RULE OR REGULATION,  SHALL  SPECIFY  THE
 INDIVIDUAL  COUNTY  OR  COUNTIES  TO BE AFFECTED BY SUCH ORDER AND SHALL
 PROVIDE A DETAILED EXPLANATION AND RATIONALE THAT STATES  WITH  PARTICU-
 LARITY  THE  FACTS,  CIRCUMSTANCES, DEMOGRAPHICS, AND CONDITIONS OF EACH
 SUCH COUNTY THAT JUSTIFIES THE ISSUANCE OF SUCH AN ORDER RELATED TO SUCH
 COUNTY.
   2. Suspensions pursuant to subdivision one of this  section  shall  be
 subject to the following standards and limits:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16480-03-0

 S. 8466                             2
 
   a.  no suspension shall be made for a period in excess of thirty days,
 provided, however, that upon reconsideration  of  all  of  the  relevant
 facts  and circumstances, the governor may extend the suspension for ANY
 SPECIFIED COUNTY OR COUNTIES FOR AN additional [periods] PERIOD  not  to
 exceed  [thirty]  FIFTEEN  days  [each].  AT THE END OF SUCH PERIOD, ALL
 SUSPENSIONS SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT  UNLESS
 THE  LEGISLATURE,  BY  CONCURRENT RESOLUTION, AUTHORIZES AN EXTENSION BY
 THE GOVERNOR FOR A SPECIFIED COUNTY OR COUNTIES, FOR  A  PERIOD  NOT  TO
 EXCEED  AN  ADDITIONAL  THIRTY  DAYS;  PROVIDED THAT THE LEGISLATURE MAY
 AUTHORIZE MULTIPLE EXTENSIONS IF IT DEEMS NECESSARY;
   b. no suspension shall be made which does not safeguard the health and
 welfare of the public and which  is  not  reasonably  necessary  to  the
 disaster effort;
   c.  any  such  suspension  order shall specify the statute, local law,
 ordinance, order, rule or regulation or part thereof to be suspended and
 the terms and conditions of the suspension;
   d. the order may provide for such  suspension  only  under  particular
 circumstances, and may provide for the alteration or modification of the
 requirements of such statute, local law, ordinance, order, rule or regu-
 lation suspended, and may include other terms and conditions;
   e.  any  such suspension order shall provide for the minimum deviation
 from the requirements of the statute, local law, ordinance, order,  rule
 or  regulation  suspended  consistent  with  the  disaster action deemed
 necessary; and
   f. when practicable, specialists shall be assigned to assist with  the
 related  emergency  actions  to avoid needless adverse effects resulting
 from such suspension.
   3. Such suspensions shall be effective from the time and in the manner
 prescribed in such orders and shall be published as soon as  practicable
 in the state bulletin.
   4.  The  legislature  may terminate by concurrent resolution executive
 orders issued under this section at any time.
   5. A. ANY CHIEF EXECUTIVE OF A COUNTY EXCEPT A COUNTY WHOLLY CONTAINED
 WITHIN A CITY, OR THE MAYOR OF ANY CITY WITH MORE THAN A  MILLION  RESI-
 DENTS,  MAY  UPON  FIFTEEN DAYS NOTICE REQUEST THE GOVERNOR TO TERMINATE
 ANY DECLARATION OF A STATE DISASTER EMERGENCY OR ANY  RELATED  EXECUTIVE
 ORDER AFFECTING SUCH POLITICAL SUBDIVISION.
   B. IF THE GOVERNOR DENIES SUCH REQUEST, THE GOVERNOR SHALL WITHIN SUCH
 FIFTEEN  DAY PERIOD PROVIDE TO THE CHIEF EXECUTIVE OFFICER OF THE COUNTY
 OR MAYOR A DETAILED WRITTEN EXPLANATION AND RATIONALE THAT  STATES  WITH
 PARTICULARITY  THE  CIRCUMSTANCES,  DEMOGRAPHICS, AND CONDITIONS OF SUCH
 COUNTY OR CITY THAT JUSTIFIES THE CONTINUANCE OF SUCH AN  ORDER  RELATED
 TO  SUCH POLITICAL SUBDIVISION.  IF THE GOVERNOR FAILS TO RESPOND WITHIN
 SUCH FIFTEEN-DAY PERIOD, THE STATE DISASTER EMERGENCY  AND  ALL  RELATED
 EXECUTIVE  ORDERS  SHALL  CEASE  AND BE OF NO FURTHER FORCE OR EFFECT AS
 APPLIED TO THE REQUESTING COUNTY OR CITY.
   C. IF THE GOVERNOR DENIES A REQUEST TO TERMINATE ANY DECLARATION OF  A
 STATE DISASTER EMERGENCY OR ANY RELATED EXECUTIVE ORDER, THE CHIEF EXEC-
 UTIVE  OFFICER  OF THE COUNTY OR THE MAYOR MAY SEEK A JUDICIAL REVIEW OF
 THE GOVERNOR'S DECISION PURSUANT TO A SPECIAL  PROCEEDING  COMMENCED  IN
 SUPREME  COURT  IN THE AFFECTED COUNTY OR CITY.  THE GOVERNOR SHALL HAVE
 THE BURDEN TO ESTABLISH, WITH CLEAR AND CONVINCING EVIDENCE, WITHIN FIVE
 DAYS AFTER SERVICE ON THE GOVERNOR AND ATTORNEY GENERAL OF THE  PETITION
 SEEKING  JUDICIAL  REVIEW,    THE  NEED FOR A CONTINUATION OF SUCH STATE
 DISASTER EMERGENCY AND ANY RELATED EXECUTIVE ORDERS FOR SUCH  COUNTY  OR
 CITY  AND  THAT  SUCH EXECUTIVE ORDERS ARE NARROWLY TAILORED TO MEET THE

 S. 8466                             3
 
 DISASTER EMERGENCY AND COMPLY  WITH  THE  RESTRICTIONS  AND  LIMITATIONS
 CONTAINED  IN  THIS  CHAPTER, INCLUDING, AMONGST OTHER THINGS, INVOLVING
 THE MINIMUM DEVIATION FROM ANY PROVISION THAT WAS SUSPENDED AND AVOIDING
 NEEDLESS  ADVERSE  EFFECTS.    THE SUPREME COURT SHALL RENDER A DECISION
 WITHIN FIFTEEN DAYS AFTER SERVICE ON THE GOVERNOR AND  ATTORNEY  GENERAL
 OF THE PETITION SEEKING JUDICIAL REVIEW.
   6.  EVERY  EXECUTIVE  ORDER  THAT IMPAIRS THE RIGHT TO FREELY PRACTICE
 RELIGION OR WORSHIP, TO PEACEABLY ASSEMBLE,  TO  FREE  SPEECH,  TO  FREE
 PRESS, OR TO LIBERTY OR PROPERTY; IMPAIRS EQUAL TREATMENT UNDER THE LAW;
 IMPAIRS  THE  VALIDITY OF AN EXISTING CONTRACT; OR OTHERWISE IMPAIRS ANY
 RIGHT GRANTED BY THE NEW YORK STATE CONSTITUTION OR  THE  UNITED  STATES
 CONSTITUTION  SHALL,  WITHIN  THE  EXECUTIVE ORDER ITSELF, PROVIDE FOR A
 PROCESS BY WHICH A PERSON OR ENTITY MAY SEEK REVIEW OF THE APPLICABILITY
 AND CONSTITUTIONALITY THEREOF.  SUCH REVIEW SHALL INCLUDE, AT A MINIMUM,
 THE RIGHT TO A PROMPT IMPARTIAL ADMINISTRATIVE HEARING AND DECISION  AND
 THE  RIGHT  TO  APPEAL  THE  FINAL  DETERMINATION OF SUCH HEARING TO THE
 SUPREME COURT IN THE COUNTY IN WHICH SUCH PERSON OR ENTITY IS LOCATED.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.

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