‘STATE OF New Yor EXECUTIVE CHAMBER ‘NAN 12004 Re: Gubernatorial Power to Convene the Legislature in Extraordinary Session ‘The Legislature contends that the January 18, 2010 extraordinary session convened by Governor Paterson to help the State secure federal funds for education in the “Race to the Top” competition, remains in progress. It further argues that until such session is concluded by the Legislature, the Governor is without authority to convene a new extraordinary session. In sum, the Legislature seeks to require the Governor to obtain legislative consent before convening a new extraordinary session. In making this argument, the Legislature secks to: (1) nullify the Govemor’s broad constitutional power to convene the Legislature on extraordinary occasions; and (2) grant itself the political option to disregard future calls for such a session, including potential calls ater this year to address budget shortfalls. This memorandum explains why such usurpation of the Governor's constitutional power would violate the plain meaning, intent and spirit of the New York State Constitution, and severely undermine the State's ability to conffont future crises and other extraordinary events. 1 Background On January 17, 2010, the Governor issued a proclamation pursuant to Article IV, Section 3 of the New York State Constitution to convene the Senate and the Assembly in extraordinary session on January 18._‘The purpose of the session was to consider legislation designed to enhance New York State’s probability of winning federal funds for education in the “Race to the Top” competition.’ On January 18, 2010, both houses of the Legislature convened in extraordinary session, but neither considered the legislation placed on the agenda by the Governor. Instead, the Senate “adjourned at the call of the Temporary President” and the Assembly “recessed” shortly after gaveling in, Neither house adjourned sine die (or without date) as would typically occur at the conclusion of such a session. Both houses now maintain that the January 18 extraordinary session remains in progress, and that, until such session is concluded by the Legislature, the Governor is without authority to convene a new extraordinary session. In an effort to continue the session ~ and thus preclude the Governor from convening a new extraordinary session — the Senate and the Assembly have each gaveled in to what they claim is the January 18 extraordinary session on more than 60 separate occasions in the last six months (more than 120 separate occasions in the aggregate). Both houses have remained committed to th argument notwithstanding the May 28 passage in regular session of the Race to the Top legislation — the sole purpose of the January 18 extraordinary session. * Under Article 1V, Section 3 of the Constitution, the Legislature may only act upon subjects recommended by the Governor for the extraordinary session.On June 26, 2010, the Governor issued another proclamation pursuant to Article IV, Section 3 of the Constitution to convene the Senate and Assembly in extraordinary session on June 27. ‘The purpose of this extraordinary session was to consider legislation to: (1) enhance New York State’s budget making standards; (2) establish a contingency plan with respect to State finances in case the anticipated enhanced federal medical assistance percentages (“FMAP") were not enacted by Congress; and (3) empower the State University of New York and the City University of New York to establish their own tuition policy. Both houses of the Legislature assembled on June 27 as required by the proclamation, but neither recognized the session as a new extraordinary session. Instead, the leadership of both houses claimed that inasmuch as they remained in the extraordinary session of January 18, 2010, the Governor was without authority to convene a new extraordinary session. Both houses of the Legislature thus deemed the June 27 extraordinary session a part of the January 18 extraordinary session, IL Analysis A. The Governor has Broad Authority to Convene the Legislature on Extraordinary Occasions, Article IV, Section 3 of the New York State Constitution bestows upon the Govemnor broad and. ‘unambiguous legal authority to convene the Legislature on extraordinary occasions. This section ofthe Constitution in pertinent part provides: ‘The governor shall have power to convene the legislature, or the senate only, on extraordinary occasions. At extraordinary sessions convened pursuant to the provisions of this section no subject shall be acted upon, except such as the governor may recommend for consideration. ‘The Governor's authority to convene the Legislature during extraordinary times has been part of the New York State Constitution since it was first adopted on April 20, 1777. See First N.Y. Const. art. XVIIL. Since that time, Governors of New York have frequently relied on this authority to address extraordinary events, and Courts have long recognized the scope of this power. See People v. Fancher, 50 N.Y. 288, 1872 N.Y. LEXIS 417 (1872) (noting that the Governor may convene the Legislature in extraordinary session unless the Legislature is already convened “in session” ready for business); See also People ex rel. Carter v. Rive, 135 N.Y. 473 (1892)? As recently as June 2009, the New York State Supreme Court reaffirmed the broad scope of the Governor's authority under Article IV, Section 3 of the Constitution. See Paterson v. Adams et al,, Sup. Ct. Albany County, (Order, June 29, 2009), After the “coup” in the Senate had split the Chamber in an unprecedented 31-31 tie between Republicans and Democrats, and with legislators unwilling to convene in session to transact important State business, the Governor exercised his authority under Article IV, Section 3 of the Constitution to convene daily extraordinary sessions of the Senate. The breadth of the Governor's authority is also well-recognized in legislative practice. ‘The Mason's Manual of Legislative Procedure ~ routinely relied upon by the New York State Legislature ~ provides that “the governor is invested with the authority to call an extraordinary or special session of the legislature and, in the exercise of such power, neither the legislature nor the judicial department has any power to call the governor to account.” See ‘Mason's Legislative Manual § 780 (10),‘The Senate attempted to frustrate the Governor's efforts by convening separate, concurrent sessions of the Republicans and Democrats. Since neither side had the requisite number of members to establish a quorum, no State business could be conducted at these sessions. ‘To enforce his authority under Article IV, Section 3 and require the Senate to meet as one group, the Governor commenced a lawsuit in the Supreme Court of the State of New York, Albany County. At oral argument, Judge Joseph CC. Teresi noted that the Senate’s separate sessions of the Republicans and Democrats were a “fiction” and ‘an “illusion.” Judge Teresi ultimately rejected the Senate’s arguments and issued a judgment of ‘mandamus in favor of the Governor requiring each state senator to convene into extraordinary session as. ‘one group pursuant to the Governor’s authority under Article IV, Section 3 of the Constitution, ‘The Legislature has yet again attempted to frustrate the Governor’s efforts to convene an extraordinary session, this time by claiming that the Governor is without authority to convene such a session until the Legislature first concludes the January 18 extraordinary session. Taken to its logical conclusion, this argument would preclude the Governor from convening an extraordinary session —_no ‘matter how grave the circumstance — unless the Legislature first consented by concluding a prior extraordinary session. The Constitution imposes no such restriction on the Governor and such interpretation would run completely contrary to the very purpose of Article IV, Section 3. Indeed, it would prevent the Governor, under the most exigent of circumstances, from conducting critical State business. ‘The separation of powers doctrine requires not that each branch of government be insulated from the others, but that no one branch arrogate to itself the powers conferred exclusively on another branch. Saratoga County of Commerce, Inc. v. Pataki, 100 N.Y.2d 821; Bourquin v. Cuomo, 85 N.Y.2d 781, 784- 85, 652 N_E.2d 171, 628 N.Y.S.2d 618 (1995); Under 21, Catholic Home Bur. For Dependent Children v. City of New York, 65 N.Y.2d at 356; Nicholas v. Kahn, 47 N.Y.2d 24, 30-31, 389 N.E.2d 1086, 416 N.Y.S.2d 565 (1979). Here, the Legislature has not only attempted to nullify the Governor’s constitutional authority to convene an extraordinary session, but claims to have arrogated to itself a virtually exclusive right to convene such sessions in the future, Further, the factual foundation of the Legislature's argument appears shaky, at best. A review of the legislative record makes clear that despite claims to the contrary, neither the Senate, nor the Assembly has actually been in the extraordinary session they purport to continue since January 18. Indeed, while the Senate and the Assembly claim to have gaveled in on more than 120 separate occasions in the aggregate, the legislative record reveals that neither house has ever been assembled ready to transact any State business on those occasions. Indeed, during each of the 120 plus extraordinary “session” days: © only a couple of legislators were present; the Assembly and Senate chambers were virtually empty; ‘© no quorum ever was established; no State business ever was transacted: © no “session” lasted much beyond a minute or two in length; and ‘© _ no state business has been on the agenda since the Race to the Top legislation passed in regular session on May 28.