Restores the legislative checks and balances to any emergency declaration that exceeds forty-five days; 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; requires a specification and explanation of which municipalities are affected by such suspension of laws.
STATE OF NEW YORK
________________________________________________________________________
1117
2023-2024 Regular Sessions
IN SENATE
January 10, 2023
___________
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 amend the executive law, in relation to restoring the legisla-
tive 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 29-a of the executive law, as added by chapter 640
2 of the laws of 1978, subdivision 1 as amended by section 7 of part G of
3 chapter 55 of the laws of 2012, is amended to read as follows:
4 § 29-a. Suspension of other laws. 1. a. Subject to the state constitu-
5 tion, the federal constitution and federal statutes and regulations, the
6 governor may by executive order temporarily suspend specific provisions
7 of any statute, local law, ordinance, or orders, rules or regulations,
8 or parts thereof, of any agency during a state disaster emergency, if
9 compliance with such provisions would prevent, hinder, or delay action
10 necessary to cope with the disaster.
11 b. Every order directing the temporary suspension of any statute,
12 local law, ordinance, or order, rule or regulation, shall specify the
13 individual county or counties to be affected by such order and shall
14 provide a detailed explanation and rationale that states with particu-
15 larity the facts, circumstances, demographics, and conditions of each
16 such county that justifies the issuance of such an order related to such
17 county.
18 2. Suspensions pursuant to subdivision one of this section shall be
19 subject to the following standards and limits:
20 a. no suspension shall be made for a period in excess of thirty days,
21 provided, however, that upon reconsideration of all of the relevant
22 facts and circumstances, the governor may extend the suspension for any
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03772-01-3
S. 1117 2
1 specified county or counties for an additional [periods] period not to
2 exceed [thirty] fifteen days [each]. At the end of such period, all
3 suspensions shall terminate and be of no further force or effect unless
4 the legislature, by concurrent resolution, authorizes an extension by
5 the governor for a specified county or counties, for a period not to
6 exceed an additional thirty days; provided that the legislature may
7 authorize multiple extensions if it deems necessary;
8 b. no suspension shall be made which does not safeguard the health and
9 welfare of the public and which is not reasonably necessary to the
10 disaster effort;
11 c. any such suspension order shall specify the statute, local law,
12 ordinance, order, rule or regulation or part thereof to be suspended and
13 the terms and conditions of the suspension;
14 d. the order may provide for such suspension only under particular
15 circumstances, and may provide for the alteration or modification of the
16 requirements of such statute, local law, ordinance, order, rule or regu-
17 lation suspended, and may include other terms and conditions;
18 e. any such suspension order shall provide for the minimum deviation
19 from the requirements of the statute, local law, ordinance, order, rule
20 or regulation suspended consistent with the disaster action deemed
21 necessary; and
22 f. when practicable, specialists shall be assigned to assist with the
23 related emergency actions to avoid needless adverse effects resulting
24 from such suspension.
25 3. Such suspensions shall be effective from the time and in the manner
26 prescribed in such orders and shall be published as soon as practicable
27 in the state bulletin.
28 4. The legislature may terminate by concurrent resolution executive
29 orders issued under this section at any time.
30 5. a. Any chief executive of a county except a county wholly contained
31 within a city, or the mayor of any city with more than a million resi-
32 dents, may upon fifteen days notice request the governor to terminate
33 any declaration of a state disaster emergency or any related executive
34 order affecting such political subdivision.
35 b. If the governor denies such request, the governor shall within such
36 fifteen day period provide to the chief executive officer of the county
37 or mayor a detailed written explanation and rationale that states with
38 particularity the circumstances, demographics, and conditions of such
39 county or city that justifies the continuance of such an order related
40 to such political subdivision. If the governor fails to respond within
41 such fifteen-day period, the state disaster emergency and all related
42 executive orders shall cease and be of no further force or effect as
43 applied to the requesting county or city.
44 c. If the governor denies a request to terminate any declaration of a
45 state disaster emergency or any related executive order, the chief exec-
46 utive officer of the county or the mayor may seek a judicial review of
47 the governor's decision pursuant to a special proceeding commenced in
48 supreme court in the affected county or city. The governor shall have
49 the burden to establish, with clear and convincing evidence, within five
50 days after service on the governor and attorney general of the petition
51 seeking judicial review, the need for a continuation of such state
52 disaster emergency and any related executive orders for such county or
53 city and that such executive orders are narrowly tailored to meet the
54 disaster emergency and comply with the restrictions and limitations
55 contained in this chapter, including, amongst other things, involving
56 the minimum deviation from any provision that was suspended and avoiding
S. 1117 3
1 needless adverse effects. The supreme court shall render a decision
2 within fifteen days after service on the governor and attorney general
3 of the petition seeking judicial review.
4 6. Every executive order that impairs the right to freely practice
5 religion or worship, to peaceably assemble, to free speech, to free
6 press, or to liberty or property; impairs equal treatment under the law;
7 impairs the validity of an existing contract; or otherwise impairs any
8 right granted by the New York state constitution or the United States
9 Constitution shall, within the executive order itself, provide for a
10 process by which a person or entity may seek review of the applicability
11 and constitutionality thereof. Such review shall include, at a minimum,
12 the right to a prompt impartial administrative hearing and decision and
13 the right to appeal the final determination of such hearing to the
14 supreme court in the county in which such person or entity is located.
15 § 2. This act shall take effect on the thirtieth day after it shall
16 have become a law.
