Bill Text: NY A10546 | 2019-2020 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Republican 33-0)

Status: (Introduced) 2020-05-28 - referred to governmental operations [A10546 Detail]

Download: New_York-2019-A10546-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          10546

                   IN ASSEMBLY

                                      May 28, 2020
                                       ___________

        Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Goodell,
          Barclay, Ashby, Brabenec, Byrnes, Crouch, DeStefano, DiPietro,  Finch,
          Friend,  Hawley, Kolb, Lawrence, LiPetri, Manktelow, Mikulin, B. Mill-
          er, M. L. Miller, Montesano, Morinello, Norris, Palmesano, Ra, Reilly,
          Salka, Smullen, Tague, Walczyk,  Walsh,  Byrne,  Giglio,  Malliotakis,
          Stec) -- read once and referred to the Committee on Governmental Oper-
          ations

        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:

     1    Section 1. Section 2 of chapter 23 of the laws of 2020,  amending  the
     2  executive  law  relating  to  issuing  by  the governor of any directive
     3  necessary to respond to a state disaster emergency, is REPEALED.
     4    § 2. Section 29-a of the executive law, as added by chapter 640 of the
     5  laws of 1978, subdivision 1 as amended by section 7 of part G of chapter
     6  55 of the laws of 2012, is amended to read as follows:
     7    § 29-a. Suspension of other laws. 1. a. Subject to the state constitu-
     8  tion, the federal constitution and federal statutes and regulations, the
     9  governor may by executive order temporarily suspend specific  provisions
    10  of  any  statute, local law, ordinance, or orders, rules or regulations,
    11  or parts thereof, of any agency during a state  disaster  emergency,  if
    12  compliance  with  such provisions would prevent, hinder, or delay action
    13  necessary to cope with the disaster.
    14    b. Every order directing the  temporary  suspension  of  any  statute,
    15  local  law,  ordinance,  or order, rule or regulation, shall specify the
    16  individual county or counties to be affected by  such  order  and  shall
    17  provide  a  detailed explanation and rationale that states with particu-
    18  larity the facts, circumstances, demographics, and  conditions  of  each

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16480-03-0

        A. 10546                            2

     1  such county that justifies the issuance of such an order related to such
     2  county.
     3    2.  Suspensions  pursuant  to subdivision one of this section shall be
     4  subject to the following standards and limits:
     5    a. no suspension shall be made for a period in excess of thirty  days,
     6  provided,  however,  that  upon  reconsideration  of all of the relevant
     7  facts and circumstances, the governor may extend the suspension for  any
     8  specified  county  or counties for an additional [periods] period not to
     9  exceed [thirty] fifteen days [each]. At the  end  of  such  period,  all
    10  suspensions  shall terminate and be of no further force or effect unless
    11  the legislature, by concurrent resolution, authorizes  an  extension  by
    12  the  governor  for  a  specified county or counties, for a period not to
    13  exceed an additional thirty days;  provided  that  the  legislature  may
    14  authorize multiple extensions if it deems necessary;
    15    b. no suspension shall be made which does not safeguard the health and
    16  welfare  of  the  public  and  which  is not reasonably necessary to the
    17  disaster effort;
    18    c. any such suspension order shall specify  the  statute,  local  law,
    19  ordinance, order, rule or regulation or part thereof to be suspended and
    20  the terms and conditions of the suspension;
    21    d.  the  order  may  provide for such suspension only under particular
    22  circumstances, and may provide for the alteration or modification of the
    23  requirements of such statute, local law, ordinance, order, rule or regu-
    24  lation suspended, and may include other terms and conditions;
    25    e. any such suspension order shall provide for the  minimum  deviation
    26  from  the requirements of the statute, local law, ordinance, order, rule
    27  or regulation suspended  consistent  with  the  disaster  action  deemed
    28  necessary; and
    29    f.  when practicable, specialists shall be assigned to assist with the
    30  related emergency actions to avoid needless  adverse  effects  resulting
    31  from such suspension.
    32    3. Such suspensions shall be effective from the time and in the manner
    33  prescribed  in such orders and shall be published as soon as practicable
    34  in the state bulletin.
    35    4. The legislature may terminate by  concurrent  resolution  executive
    36  orders issued under this section at any time.
    37    5. a. Any chief executive of a county except a county wholly contained
    38  within  a  city, or the mayor of any city with more than a million resi-
    39  dents, may upon fifteen days notice request the  governor  to  terminate
    40  any  declaration  of a state disaster emergency or any related executive
    41  order affecting such political subdivision.
    42    b. If the governor denies such request, the governor shall within such
    43  fifteen day period provide to the chief executive officer of the  county
    44  or  mayor  a detailed written explanation and rationale that states with
    45  particularity the circumstances, demographics, and  conditions  of  such
    46  county  or  city that justifies the continuance of such an order related
    47  to such political subdivision.  If the governor fails to respond  within
    48  such  fifteen-day  period,  the state disaster emergency and all related
    49  executive orders shall cease and be of no further  force  or  effect  as
    50  applied to the requesting county or city.
    51    c.  If the governor denies a request to terminate any declaration of a
    52  state disaster emergency or any related executive order, the chief exec-
    53  utive officer of the county or the mayor may seek a judicial  review  of
    54  the  governor's  decision  pursuant to a special proceeding commenced in
    55  supreme court in the affected county or city.  The governor  shall  have
    56  the burden to establish, with clear and convincing evidence, within five

        A. 10546                            3

     1  days  after service on the governor and attorney general of the petition
     2  seeking judicial review,   the need for a  continuation  of  such  state
     3  disaster  emergency  and any related executive orders for such county or
     4  city  and  that  such executive orders are narrowly tailored to meet the
     5  disaster emergency and comply  with  the  restrictions  and  limitations
     6  contained  in  this  chapter, including, amongst other things, involving
     7  the minimum deviation from any provision that was suspended and avoiding
     8  needless adverse effects.   The supreme court shall  render  a  decision
     9  within  fifteen  days after service on the governor and attorney general
    10  of the petition seeking judicial review.
    11    6. Every executive order that impairs the  right  to  freely  practice
    12  religion  or  worship,  to  peaceably  assemble, to free speech, to free
    13  press, or to liberty or property; impairs equal treatment under the law;
    14  impairs the validity of an existing contract; or otherwise  impairs  any
    15  right  granted  by  the New York state constitution or the United States
    16  Constitution shall, within the executive order  itself,  provide  for  a
    17  process by which a person or entity may seek review of the applicability
    18  and constitutionality thereof.  Such review shall include, at a minimum,
    19  the  right to a prompt impartial administrative hearing and decision and
    20  the right to appeal the final  determination  of  such  hearing  to  the
    21  supreme court in the county in which such person or entity is located.
    22    §  3.  This  act shall take effect on the thirtieth day after it shall
    23  have become a law.
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