"It Ain't Necessarily So": The Governor's "Message of Necessity" and the Legislative Process in New York

Article excerpt


The passage of the New York Secure Ammunition and Firearms Enforcement Act provides exemplary evidence of the extent to which the message of necessity has been transformed from a procedure allowing for limited exceptions in exiguous circumstances to the three-calendar day requirement into a device that has enhanced the governor's role in the legislative process.

The NY SAFE Act resulted in significant changes to ten consolidated laws and one unconsolidated law, including, inter alia:

1. requiring mental health professionals to report patients likely to engage in serious harm to themselves or others, which may result in the patient's gun license being suspended and any firearms being removed; (248)

2. redefining "assault weapons" to include semi-automatic pistols and rifles with detachable magazines and one military style feature, as well as semi-automatic shotguns with one military style feature, (249)

3. banning the purchase of assault weapons after the effective date of the law, requiring persons who own assault weapons prior to the effective date of the law to register them and restricting the sale of such "grandfathered" assault weapons; (250)

4. limiting the capacity of magazines to seven rounds, reduced from the previous ten round limit, limiting to seven the number of rounds that can be loaded into a "grandfathered" ten round magazine, and banning possession of certain other high-capacity magazines; (251)

5. requiring owners of handguns or assault rifles to recertify their permit every five years; (252)

6. requiring all gun transfers between private parties other than family members to be conducted through a federal firearms licensee; (253)

7. increasing penalties for certain gun offenses; (254)

8. extending and strengthening the ability of judges to require individuals to regularly undergo psychiatric treatment; (255) and

9. requiring the safe storage of firearms in houses having people who are barred from possessing such firearms. (256)

The final hours before passage of the NY SAFE Act depict a whirlwind of activity. (257) On January 14, 2013, the bill, S2230, was printed, and Senate Republican Conference Leader Dean Skelos and Independent Democratic Conference Leader Jeffrey Klein agreed to present the bill to the members of the Senate for immediate passage. (258) At approximately 11 p.m. that evening, Senators Skelos and Klein released copies of the bill to the Senate, and asked the Senate to vote on it. (259) Deputy Republican Conference Leader for Legislative Operations Tom Libous, who was conducting the floor at the time, asked the Senate President, Lieutenant Governor Robert Duffy, if there was a message of necessity at the desk. (260) The President responded that there was a message. (261) No senators requested it and the President did not offer a copy of the message for the senators to review, nor was the message read. (262) The Senate Rules require that a message of necessity be approved by a vote of the senators, (263) and so a voice vote was taken. (264) Remarkably, the Senate Journal records no response to the question of any opposition to the acceptance of the message of necessity. (265) Immediately following the acceptance of the message, the President instructed the Senate Secretary to read the last section of the bill, and the Secretary read:

"THE SECRETARY: Section 58. This act shall take effect immediately." (266)

The roll was then called and the bill was approved by a vote of 43-18, with numerous senators explaining both affirmative and negative votes on the bill. (267) The total time that the Senate considered and approved the bill was approximately twenty minutes. (268)

On Tuesday, January 15, 2013, at approximately 11:20 a.m., the bill was taken up in the Assembly. (269) Unlike the Senate, the Assembly actually read the message of necessity issued by Governor Andrew Cuomo, which gave as the "facts" necessitating suspension of the three-day rule the following:

      Some weapons are so dangerous, and some ammunition
   devices so lethal, that New York State must act without
   delay to prohibit their continued sale and possession in the
   State in order to protect its children, first responders and
   citizens as soon as possible. …