You are on page 1of 5

STATE OF NEW YORK EXECUTIVE CHAMBER AlBANY 12224

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 seeks to: (1) nullify the Governor'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 later 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 confront future crises and other extraordinary events.

I. 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 their 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.

1 Under Article IV, 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 ..

II. 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 Governor broad and unambiguous legal authority to convene the Legislature on extraordinary occasions. This section of the 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. XVIII. 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.V. 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 re1. Carter v. Rice, 135 N.Y. 473 (1892).2

As recently as June 2009, the New York State Supreme Court reaffirmed the broad scope of the Governor's authority under Article N, Section 3 of the Constitution. See Paterson v. Adams et aI., 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.

2 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 conunenced a lawsuit in the Supreme Court of the State of New York, Albany County. At oral argument, Judge Joseph C. 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 ofConunerce, Inc. v. Pataki, 100 N.Y.2d 821; Bourquin v. Cuomo, 85 N.Y.2d 781, 784- 85,652 N.E.2d 171, 628 NY.S.2d 618 (995); 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.

These facts clearly establish that neither house of the Legislature convened in extraordinary session since January 18,2010 except for June 27,2010, and that the sole purpose of the Legislature'S actions and arguments thus far has been to usurp the Governor's authority under Article IV, Section 3. Indeed, the Legislature has continued to maintain the fiction that it continues in such session long after its only topic on the agenda for that session - increasing the chance of receiving Race to the Top funding - had already been addressed.

In People v. Fancher, 50 N.Y. 288, 1872 N.Y. LEXIS 417 (1872), the Court of Appeals, in deciding whether the Senate was "in session" for the purpose of providing advice and consent to the Governor to fill a vacancy on the Supreme Court, or whether the Governor had power to appoint without Senate confirmation, said:

"The constitution, designed for practical purposes, had respect to realities, and was not dealing with fictions or a constructive holding of things. It had respect to a Senate actually and duly convened, and in readiness to act upon nominations of the governor and the transaction of other business pertaining to the body, not to a constructive session [or] a body not actually or potentially existing."

Id. at 293

The Court further noted that the words "in session" indicate a "present acting or being of the senate as a body," that such body is acting "has a continuing existence for certain purposes" and that "when it is said that a court or legislative body is in session, the meaning is that the members are assembledfor business." (emphasis added). Id. at 294 The Court finally held in that case:

"To give the phrase 'in session,' the effect claimed for it by the relator, and to hold that the senate is now and has been from the 14th day of May 'in session,' within the meaning of the Constitution, so that no appointment to fill a vacancy in the office of justice of Supreme Court occurring during that time can be made, except by and with the advice and consent of the senate, practically nullifies the provision and defeats the remedy intended to be provided for the possible evils resulting from a vacancy in the office by making an appointment impossible for several months." Id. at 293

The Court went on to state that "the spirit and intent of the Constitution would be sacrificed to what is claimed to be the letter of the instrument, to hold that the senate was 'in session' during all the months during which it might adjourn, and thus extend an ordinary or extraordinary session" and that "it is very palpable that it is not the intent of the Constitution that the senate should be regarded as 'in session' during these long adjournments, or that any such constructive session or sitting should deprive the governor of the right to fill the vacancy or the people of the services of a justice of the Supreme Court." rd. at 295, 296

As the facts outlined above make clear, it cannot be concluded that the Legislature has been in extraordinary session since January 18. Neither house has ever been assembled in extraordinary session ready to transact State business since January. As in Fancher, the spirit and intent of the Constitution would be sacrificed here, if it were held that the Senate and the Assembly have been in extraordinary session since January 18 and that such constructive sitting has deprived the Governor of the right to convene a new extraordinary session to address future extraordinary events of great significance to the population of this State.

At bottom, the Legislature's argument is simply an attempt to nullify Article IV, Section 3 of the Constitution. If given weight, the Legislature could simply disregard gubernatorial calls for extraordinary session by deliberately continuing a prior extraordinary session. This contortion of the Governor's longrecognized constitutional authority lacks a basis in law and must be recognized for what it truly is ~ a political maneuver to frustrate the Governor's efforts in convening the Legislature to address politically unpopular, yet critically important issues of public policy. The Constitution does not permit the Legislature to usurp gubernatorial authority in this manner.

B. Revocation of Proclamation

It is a well-recognized principle of legislative procedure that a "Proclamation by a Governor calling an [extraordinary] session may be revoked by the governor or the governor's successor and, when revoked, the legislature is without authority to act" See Mason's Legislative Manual § 780(8). Here, the Governor may revoke the January 17 proclamation and eliminate the basis of the extraordinary session the Legislature purports to continue. Moreover, any claim that the Governor has improperly prorogued (dissolved or adjourned) the Legislature would have no basis.

By way of background, the First Constitution of New York State of 1777 retained several provisions from the Colonial charter, including a provision that permitted the Governor to "prorogue [the legislature] from time to time." See First N.Y. Const. art. XVIII This provision of the First Constitution had its roots in the British system of government under which the Queen may prorogue Parliament upon the advice of the Privy Council. Prorogation takes the form of an announcement, on behalf of the Queen, read in the House of Lords. Following this, both the House of Commons and House of Lords are officially prorogued and may not meet again until the State Opening of Parliament. The provision of the First New York State Constitution permitting the Governor to prorogue the Legislature was removed in 1821.

Any argument by the Legislature that a revocation of the January 17 proclamation somehow constitutes a proroguing of the Legislature would be inapt and absurd. The concept of prorogation has no applicability to our present form of federal or State government and the Governor does not wish to adjourn or dissolve the Legislature. Moreover, even after revocation of the proclamation, the Legislature would retain the ability to pass its preferred legislation in regular session - something it cannot currently do in the extraordinary session it purports to continue. Finally, as noted above, it is clear from the facts that neither house has been successful in continuing the January 18 extraordinary session. A revocation of the proclamation, therefore, could not possibly constitute prorogation.

III. Conclusion

The Governor has broad constitutional authority to convene the Legislature on extraordinary occasions and such authority may not be usurped by the Legislature by simply continuing a prior extraordinary session in perpetuity. In any event, the Legislature's actions in this case failed to create even the barest factual predicate upon which an argument could be based that the January 18 extraordinary session had continued, and both the Governor's revocation of his proclamation calling that session, as well as the enactment in regular session of the legislation for which that session was called, remove any possible contention that this session is ongoing.

July 21,2010

Peter J. Kiernan Counsel to the Governor

You might also like