Regular Session - April 29, 2002
2511
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 29, 2002
3:09 p.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
2512
P R O C E E D I N G S
ACTING PRESIDENT MEIER: The
Senate will come to order.
May I ask everyone present to
please rise and join me in reciting the Pledge
of Allegiance to the Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MEIER: The
invocation will be offered by the Reverend
Isaac Nyeayea, First United Christian Church
of Staten Island.
Reverend.
REVEREND YOUNG: It's an honor
for me to be here today, and I thank God for
making it possible for us to be here.
I would ask that you please allow
me to introduce to you our former president of
Liberia, and he is here with me.
I'm going to read one scripture
from the Book of Psalms, Section 33, Verse 12,
which says: "Blessed is the nation whose God
is the Lord, and the people whom He has chosen
for His own inheritance."
Let us bow our heads and pray. Our
2513
Father, our God, before You this afternoon we
have assembled here to ask Your presence here
among us in the person of the Holy Spirit.
Lord, we thank You for making this assembly
today possible.
And we pray that as our leaders get
together to discuss and decide on issues that
will affect us as a state, we pray that Your
Holy Spirit will lead them to do and to say
what is good for us and what is appropriate
for us.
And we thank You, and we pray that
You will bless them continuously, that they
will be able to be governed by Your Spirit to
do what You will have them to do.
We thank You and we bless You. In
Jesus' name, we pray, amen. Amen.
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Sunday, April 28, the Senate met pursuant to
adjournment. The Journal of Saturday,
April 27, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT MEIER: Without
2514
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Lack,
from the Committee on Judiciary, reports the
following bills:
Senate Print 6, by Senator Bruno,
concurrent resolution of the Senate and
Assembly;
535A, by Senator Hoffmann,
concurrent resolution of the Senate and
Assembly;
834, by Senator Morahan, concurrent
resolution of the Senate and Assembly;
2817, by Senator Volker, concurrent
resolution of the Senate and Assembly;
2938, by Senator Lack, an act to
amend the Surrogate's Court Procedure Act;
3181, by Senator LaValle, an act to
amend the Real Property Law;
3339, by Senator DeFrancisco,
2515
concurrent resolution of the Senate and
Assembly;
5374, by Senator Volker, an act to
amend the Court of Claims Act;
6181, by Senator Morahan,
concurrent resolution of the Senate and
Assembly;
6912, by Senator Lack, an act to
amend the Estates, Powers and Trusts Law;
6934, by Senator Lack, an act to
amend the Surrogate's Court Procedure Act;
7023, by Senator Saland, an act to
amend the Family Court Act;
And 7318, by Senator Lack, an act
relating to prohibiting.
Senator Hoffmann, from the
Committee on Agriculture, reports:
Senate Print 534, by Senator
Hoffmann, an act to amend the Agriculture and
Markets Law;
1772, by Senator Kuhl, an act to
amend the Agriculture and Markets Law;
2315, by Senator Kuhl, an act to
amend the Agriculture and Markets Law;
6401A, by Senator Larkin, an act to
2516
amend the Agriculture and Markets Law;
6432, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
And Senate Print 6526, by Senator
Hoffmann, an act to amend the Agriculture and
Markets Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: Without
objection, all bills reported directly to
third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator McGee.
SENATOR McGEE: Thank you, Mr.
President. Amendments are offered to the
following Third Reading Calendar bills.
Sponsored by Senator LaValle,
page 5, Calendar Number 37, Senate Print 4889.
Sponsored by Senator Morahan,
page 15, Calendar Number 312, Senate Print
2457.
Sponsored by Senator Morahan,
2517
page 15, Calendar Number 317, Senate Print
3951.
Sponsored by Senator Morahan,
page 26, Calendar Number 522, Senate Print
350.
Sponsored by Senator Marcellino,
page 36, Calendar Number 670, Senate Print
6072A.
Sponsored by Senator Saland,
page number 40, Calendar Number 703, Senate
Print 3216.
Sponsored by Senator Maltese,
page number 44, Calendar Number 740, Senate
Print Number 1849.
Sponsored by Senator Wright,
page 45, Calendar Number 752, Senate Print
6230A.
Mr. President, I now move that
these bills retain their place on the order of
Third Reading Calendar.
ACTING PRESIDENT MEIER: The
amendments are received and adopted, and the
bills will retain their place on the Third
Reading Calendar.
SENATOR McGEE: Thank you, Mr.
2518
President.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
On behalf of Senator Skelos, I move
that the following bills be discharged from
their respective committees and be recommitted
with instructions to strike the enacting
clause: Senate Print Number 738A, 5457, 5681.
ACTING PRESIDENT MEIER: So
ordered.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Rules Committee in the Majority Conference
Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Rules Committee in
the Majority Conference Room.
SENATOR SKELOS: Mr. President,
if we could go to the noncontroversial
calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
2519
calendar.
THE SECRETARY: Calendar Number
264, by Senator Kuhl, Senate Print 6236A, an
act to amend the Education Law, in relation to
including.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
355, by Senator Larkin, Senate Print 2653A -
ACTING PRESIDENT MEIER: The
Secretary will continue to read.
THE SECRETARY: Calendar Number
355, by Senator Larkin, Senate Print 2653A, an
act to amend the Public Health Law, in
relation to establishing.
ACTING PRESIDENT MEIER: Read the
last section.
2520
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
495, by Senator LaValle, Senate Print 6640A,
an act to amend the Public Housing Law, in
relation to establishing.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
515, by Senator Marcellino, Senate Print 6574,
an act to amend the Environmental Conservation
2521
Law, in relation to leasing of space.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
523, by Senator Farley, Senate Print 2841, an
act to amend the Education Law, in relation to
authorizing.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
April.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
2522
is passed.
THE SECRETARY: Calendar Number
537, by Senator Morahan, Senate Print 1116, an
act to amend the Agriculture and Markets Law,
in relation to exempting.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
540, by Senator Hoffmann, Senate Print 6628,
an act to amend the Agriculture and Markets
Law, in relation to eliminating.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2 -
SENATOR DUANE: Lay it aside,
please.
2523
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
546, by Senator Stafford, Senate Print 6577,
an act to amend the Public Officers Law, in
relation to permitting.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act -
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
586, by Senator Saland, Senate Print 6748, an
act creating the Hudson Area Public Library.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
2524
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
605, by Senator Balboni, Senate Print 862, an
act to amend the Civil Practice Law and Rules,
in relation to prohibiting.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
660, by Senator Spano, Senate Print 4304, an
act to amend the Public Health Law, in
relation to exempting.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
688, by Senator Lack, Senate Print 1916, an
act to amend the Real Property Tax Law, in
relation to requiring the disclosure.
SENATOR DUANE: Lay it aside,
2525
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
693, by Member of the Assembly Gianaris,
Assembly Print Number 7297, an act to amend
the New York City Civil Court Act.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
698, by Senator Maltese, Senate Print 1842, an
act to amend the Municipal Home Rule Law.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
2526
702, by Senator Stafford, Senate Print 3092,
an act to authorize the County of Warren.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
SENATOR PATERSON: The bill is
passed.
Senator Balboni.
SENATOR BALBONI: Yes, Mr.
President. I'd like to call a meeting of the
Finance Committee in the Senate Majority
Conference Room.
ACTING PRESIDENT MEIER: There
will be a meeting of the Finance Committee in
the Majority Conference Room.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
706, by Senator Leibell, Senate Print 4943B,
2527
an act to authorize the Town of Putnam Valley.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
708, by Senator Meier, Senate Print 5397, an
act to authorize the Town of Verona, Oneida
County.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
2528
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
713, by Senator Skelos, Senate Print 6361, an
act to authorize the assessor of the County of
Nassau.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
SENATOR PATERSON: The bill is
passed.
THE SECRETARY: Calendar Number
714, by Senator Skelos, Senate Print 6384, an
act authorizing the assessor of the County of
Nassau.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
2529
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
722, by Member of the Assembly Tonko, Assembly
Print Number 10383, an act in relation to
sewer rent revenues.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
734, by Senator Nozzolio, Senate Print 6438,
an act to amend the Highway Law, in relation
to the New York State Scenic Byways System.
ACTING PRESIDENT MEIER: Read the
last section.
2530
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
735, by Senator DeFrancisco, Senate Print
6534, an act to amend the Highway Law, in
relation to state highways.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
778, by Senator Leibell, Senate Print 6926, an
2531
act to amend the Civil Service Law, in
relation to providing.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
Senator Balboni, that completes the
noncontroversial reading of the calendar.
SENATOR BALBONI: Mr. President,
may we please now have the reading of the
controversial calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
540, by Senator Hoffmann, Senate Print 6628,
an act to amend the Agriculture and Markets
Law, in relation to eliminating county
legislative body approval.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Hoffmann, an explanation has been requested by
Senator Paterson.
SENATOR HOFFMANN: Mr. President,
this bill would eliminate the restrictions
2532
that apply in a few counties right now that
have prevented horse boarding from being
treated as an agricultural activity.
We've gone to some lengths to
codify all of our state laws, including our
tax laws, to give horse boarding full
agricultural recognition in New York State,
but there remains, in a few cases, the unique
exemption that does not allow horse boarding
operations to be deemed as an agricultural
production activity.
I think that those in this chamber
recognize, from driving up and down Route 787,
there's a large billboard that describes the
importance of the horse industry, especially
as it relates to thoroughbred racing for
New York State. It is indeed a
multi-billion-dollar industry in New York
State. And clearly we want to do everything,
especially during these difficult economic
times, to encourage the horse boarding
business.
It's a wonderful use of the land,
it provides good environmental protection,
it's a great way to promote New York State for
2533
recreation purposes. And the horse boarding
people have been most pleasant to work with
during discussion of this bill.
I do want to point out that they
are represented by New York Farm Bureau. In
addition to the many different horse
organizations in this state, the premier
agricultural organization, Farm Bureau,
strongly supports this measure.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you yield for a question from
Senator Duane?
SENATOR HOFFMANN: I'd be pleased
to yield, Mr. President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
Why would a county not approve of
designating certain horse boarding operations
as land use in agricultural production -- why
would they not approve them being called
2534
designated boarding operations as land use in
agricultural production?
SENATOR HOFFMANN: Mr. President,
Senator Duane is probably not aware of the
fact that most counties do in fact approve of
horse boarding operations and consider them an
appropriate ag use. There are a few who
don't. And apparently the Association of
Counties decided that they interpreted this as
some affront to their independence.
We think that, as every other ag
activity is treated with state authority to be
recognized as a viable ag use, we think horse
boarding should be the same, notwithstanding
the Association of Counties' desire to
maintain this one archaic provision for
themselves.
The reality is that virtually all
counties with large horse boarding
activities -- or small ones, for that
matter -- have already ceded this issue.
There remain only a few that have chosen not
to.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
2535
yield.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
SENATOR HOFFMANN: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Are there any
counties that have not approved of this
designation that the sponsor is aware of?
SENATOR HOFFMANN: Mr. President,
I'm aware of one county in particular.
SENATOR DUANE: I'm sorry, Mr.
President, the sponsor -- did the sponsor say
the county?
ACTING PRESIDENT MEIER: Do you
wish to ask Senator Hoffmann a question,
Senator Duane?
SENATOR DUANE: Or to clarify,
yes, Mr. President.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you yield for another question?
SENATOR HOFFMANN: Mr. President,
it might be easier, if Senator Duane is
concerned about a specific county and its
ag-use activities, if he indicated which
2536
county and maybe we could reference that more
specifically.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
SENATOR HOFFMANN: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: The sponsor said
there was one county which had not approved of
this designation. And I thought she had said
the name of that county. But if she did, if
she would repeat it. If she did not, if she
would please let me know which one it is.
SENATOR HOFFMANN: Mr. President,
I'm aware only of Ontario County that has any
reluctance to embrace this provision.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you continue to yield?
SENATOR HOFFMANN: Yes, I do.
2537
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
have a concern that Ontario would be misusing
its county sovereignty by not allowing for the
approval of this designation?
SENATOR HOFFMANN: Mr. President,
no.
SENATOR DUANE: And through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Hoffmann, do you yield?
SENATOR HOFFMANN: Yes.
ACTING PRESIDENT MEIER: Senator
Hoffmann yields.
SENATOR DUANE: Has the State
Association of Counties provided a memo in
support of this legislation?
SENATOR HOFFMANN: Mr. President,
the Senator from Manhattan is well aware of
the fact that the Association of Counties has
provided a memo in opposition to this. We're
both reading from the same memo.
SENATOR DUANE: Thank you, Mr.
2538
President.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the bill?
The debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
546, by Senator Stafford, Senate Print 6577,
an act to amend the Public Officers Law, in
relation to permitting.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Mr. President,
can we please lay this aside temporarily.
ACTING PRESIDENT MEIER: Lay the
2539
bill aside temporarily.
SENATOR BALBONI: Thank you.
THE SECRETARY: Calendar Number
605, by Senator Balboni, Senate Print 862, an
act to amend the Civil Practice Law and Rules,
in relation to prohibiting.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Balboni, an explanation has been requested of
Calendar 605.
SENATOR BALBONI: Thank you very
much, Mr. President.
This is a bill that has been passed
by this house since 1998. It has been passed
overwhelmingly. Unfortunately, due to the
reluctance of the other house, this bill has
never seen the light of day. And what's so
dramatic is how we pass it every year and the
bill on the other side just simply goes to
Codes and dies there, in the graveyard of
legislation.
This bill would prohibit
individuals who commit a felony from suing for
any injuries incurred as a result of the
commission of that crime.
2540
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Is Senator Balboni aware of
the memorandum from the New York State Trial
Lawyers Association?
ACTING PRESIDENT MEIER: Would
you like Senator Balboni to -- interesting as
that may be as it hangs in the air, would you
like him to yield to a question?
SENATOR DOLLINGER: Yes, Mr.
President. A week away dims the old habits.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield for a question from
Senator Dollinger?
SENATOR BALBONI: Yes, I do.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR DOLLINGER: Senator
Balboni, are you aware of the memorandum from
the New York State Trial Lawyers in opposition
to this bill because of the consequences that
it could have on certain plaintiffs and their
relationship with governments and instances in
which, like in McCummings' case, he was shot
2541
in the back while running away from a police
officer, and the excessive use of force
against someone when it wasn't justified
because of the threat of deadly physical
force?
SENATOR BALBONI: Mr. President,
yes, I am.
SENATOR DOLLINGER: And do you
have any reaction to that, Senator Balboni, as
to how your bill will affect that -
ACTING PRESIDENT MEIER: Excuse
me, gentlemen. As much as I look forward to
the time when the two of you debate this bill
every year, if I could get in the middle and
ask you to address the chair, please.
Senator Dollinger, do you wish
Senator Balboni to yield for a question?
SENATOR DOLLINGER: I do indeed,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Mr. President,
I yield.
And I would just remark that you
hide sarcasm better than anybody I know.
2542
Mr. President, I would indeed like
the opportunity or welcome the opportunity to
comment on the Trial Lawyers memorandum in
opposition.
As many people in this chamber
know, memos in support or in opposition fly
all across this Legislature from a variety of
different aspects and perspectives. And
oftentimes they contain information that is
inaccurate. Well, I'd like to point out that
there are a couple of points here that are
blatantly inaccurate. And the first is the
overall premise.
The Trial Lawyers memo -- and, by
the way, they're great guys, a great group of
guys and gals, really nice people. But what
they say in this memo is just -- it stretches
the envelope. Essentially what they say is
that New York State already has a wrongful
plaintiff rule.
And they cite the case of Barker
versus Kallash, which I have discussed many
times, a New York State Court of Appeals case
in which the majority opinion essentially said
that two kids making a pipe bomb that blows
2543
up, one of the kids cannot sue the other kid
for making the pipe bomb.
Well, the point of this statute is
to codify -- that is, take the law that was
enunciated by the court and put it into
statute so that the courts will have clear
direction as to how to apply the statutory
law.
So right there they're making my
case. In addition to which, they have three
examples I'd like to go through.
The first is they say that suppose
a teenager steals a car, the police apprehend
the teen, who surrenders quietly and is
handcuffed. They proceed to beat him with
night sticks, leaving him brain damaged and
crippled. That is the fact pattern that the
Trial Lawyers set up. And they say under the
bill the police would be immunized from civil
liability.
Mr. President, nothing could be
farther from the truth with this particular
piece of legislation. This bill talks about
being injured during the commission of a
felony. It is physically impossible to be
2544
committing a felony while in custody. The two
of them are just completely -- that is a -
I'm hearing -- I'm sorry, Mr. President, there
is a chorus, there's a Greek chorus on this
side of the chamber there, and it's kind of
hard to concentrate. Perhaps you'll make a
question about that when we stop.
The person is in custody, there is
no felony. The felony has been stopped. The
police then commit their own felony. They
would be liable and responsible.
The next one. Suppose a shop owner
drives past a jewelry store one night and sees
a thief stealing a $5,000 watch. Since the
thief is committing a felony, the shopkeeper
could shoot him on the spot with no warning,
no threat, and no civil liability. While the
thief was stealing a watch, the penalty for
theft is not the firing squad.
Again, complete and utter
hyperbole. Nothing could be farther from the
truth. The shop owner cannot use a weapon -
and by the way, if the shop owner did use a
weapon, they could -- depending upon how many
people were injured or killed, they could
2545
possibly face the death penalty. So I think
that to say that there's -- an immunity from
civil liability gives the shop owner the
ability to do whatever they want to do is
absurd on its face.
And lastly, the old spring gun. I
went through this analogy last year with
Senator Marty Connor. "Or consider a seasonal
camp owner who decides to protect his property
from burglary by setting up a spring gun.
Again, under this bill, no civil liability
would attach."
Absolutely untrue. None of these
fact patterns would ever meet the test under
this particular statute. And the Trial
Lawyers know this.
So I believe that what we have here
is, again, a lot of grandiose comments and an
attempt to try to throw something against the
wall and have it stick.
But what this bill represents is
common sense, common sense that many of the
members in this chamber have continued to
recognize year after year after year. And
again, if you go to the homeowner and you say
2546
to him "Is it okay for someone for break into
your house, put a gun to your neck, steal your
money and then run down the stairs and as
they're going out the door trip over your
son's toy and then come and sue you?" they
would say "Absolutely not, that's absurd."
That's what this bill corrects.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if I might interrupt Senator Dollinger's
questioning just for a moment to ask this
question of Senator Balboni, if he would be
willing to yield.
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, first
of all, the colloquy was not in opposition to
the bill. We were talking about how much we
admire the tie you're wearing today.
But the question leads to -
2547
leaving out the Trial Lawyers memorandum, what
I don't understand, without any prompting from
the Trial Lawyers, is how there is a proximate
cause here. In other words, your bill, as I
see it, does not establish the connection that
would really be valid enough between the
injury and the commission of a felony. The
injury could take place at any point. I don't
see the timeline really being measured in the
legislation.
Now, I may be wrong, if you can
clear that up for me. That's why I asked if I
could ask a question right now.
SENATOR BALBONI: I would direct
Senator Paterson to lines 9 to 12 of the bill:
"and any action to recover damages for
personal injury." So the plaintiff must be
suing. The person convicted of the felony
must be suing. They initiate the action.
Injury to property or wrongful
death, any culpable conduct -- "culpable"
meaning that the individual committed the act
and is responsible for the act -- of the
claimant or decedent resulting in a felony
conviction. So the culpable conduct resulting
2548
in a felony conviction, that is the precedent
that must be achieved in order to have the
complete bar.
So in other words, if an individual
commits a felony and then sues as a result of
the commission of that felony -- and obviously
they would be suing for injuries -- then they
would be barred.
So take the case of the person in
handcuffs, they commit a felony. Now the
police come and they put the handcuffs on
them, put them back in the squad car, and a
beating occurs. When was the felony committed
by the individual who was culpable? Is it
when they were in handcuffs? No. Is it when
they are committing the actual felony?
Absolutely.
That is what the bill does. And by
the way, again, you know -- I want to make
this point. People tend to lose sight of what
we're talking about here. We are not talking
about criminal penalties. We're talking about
civil penalties. And when it comes to police
brutality, that is the controversial aspect of
this bill. People always say that this is
2549
about police brutality. It is not.
I would argue that you have two
remedies -- if this bill becomes law, without
any question of the facts themselves, you have
two remedies that are much better to deter a
police officer from committing police
brutality. Number one is criminal punishment
and confinement. That is a much better
deterrent against an individual officer.
The second is a federal civil
rights lawsuit against the individual police
officer and the department. A much better
remedy. Because as a matter of course, there
are statutes in this state that, from a
statutory perspective, immunize police
officers right now from conduct that occurs
during the course of their duties.
SENATOR PATERSON: Mr. President,
I won't belabor the point, but if Senator
Balboni would be willing to yield.
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I
2550
just want to go back to the example you just
gave me. There's a felony, there's an arrest
and handcuffing of the defendant, the
defendant is in a police van, there's a
beating that occurs in the police van. And
your statement was that that was not during
the time of the felony, that's after the fact.
That's what you said.
SENATOR BALBONI: That's correct.
SENATOR PATERSON: Okay. All I'm
saying to you is I don't see in the bill where
you actually define what you orally explained
to us right here. If you can could just show
me where it says that, I will -
SENATOR BALBONI: Mr. President,
simplicity is something we should try to seek
in the statute. Remember how this would be
applied. This would be applied most often in
a motion for summary judgment that would be
brought at the outset of the civil action.
So the court would review the facts
of the case on paper, not at testimony at
trial. And that, by the way, should not be
glossed over as an insignificant point.
Preventing municipalities from having to go
2551
through the practice of getting their attorney
to go to court and hire witnesses and bring
testimony and spend days in court is an
expense that they shouldn't have to incur.
This bill would prevent that.
So in the context of a motion for
summary judgment, the court would say when was
the felony committed by the culpable person,
when did it end. You don't need witness
testimony on that. That can be brought
through the documents. And if you were in
handcuffs, the felony is over. You're not
committing a felony while you're in handcuffs.
That's the point here.
And by the way, what we are doing
now would provide for the guidance should any
court decide that this is not the way to do
this. Take a look at the case of Barker
versus Kallash and find out -- read the
majority opinion there and some of the
opinions that follow. They specifically state
what the common law is today. We're codifying
that.
If there was no Barker versus
Kallash and this was the first statute that we
2552
ever took a look at in this context, I would
agree with you, perhaps we should do something
with a timeline. Well, first off, there's a
very difficult drafting aspect in that,
because the timeline changes with every case.
But since there already is the
common law of this state, we are merely
codifying that and bolstering that with this
statute.
SENATOR PATERSON: Mr. President,
I'm going to go back and look. I'm going to
take Senator Balboni's word for it, because he
has worked very hard on this, he comes
prepared. He can actually quote the case law
on this going back 108 years, Riggs versus
Palmer, which was actually ten years before he
and I started debating it.
(Laughter.)
SENATOR PATERSON: But all I'm
saying -- on the bill, Mr. President -- is
that I don't see how, let's say, the example
that Senator Balboni gave, the beating in the
van, can occur without the commission of the
felony, where I think Senator Balboni
separates it.
2553
And that becomes important when we
assess what the proximate cause is and very
much really speaks to the heart of the issue
here, which is what the timeline is with
regard to the actual suit.
Which is why generally, in cases
like this, we often are legislating the
exception, like the McCummings case. It's
horrible. And when I first read it, I think I
wanted to go to a typewriter and write the
same type of bill that Senator Balboni did.
And I think collectively in this chamber we
all feel the same way about that kind of
thing.
But I would think that our courts
would be responsible enough to close the doors
through summary judgment when we see a
perpetrator convicted of a felony trying to
use our statutes or use the comparative
negligence statute that we have on our law the
way they do.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Mr. President, will Senator Balboni yield to a
2554
question?
ACTING PRESIDENT MEIER: Senator
Balboni, do you yield?
SENATOR BALBONI: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: A
hypothetical question no less, Mr. President.
Will you yield to a hypothetical
question?
SENATOR BALBONI: Yes, I will.
SENATOR DOLLINGER: Thank you.
Senator Balboni, in a darkened
hallway in the city of New York, a man is
cornered by the police. The police say to
him: "You're under arrest, put your hands up
in the air, and don't attempt to flee." At
that point he is under arrest and they
interpret his action as resisting arrest.
When he reaches into his pocket, and they
proceed to then shoot him 38 times, under your
bill does he have a claim against the police
or the City of New York?
SENATOR BALBONI: Yes.
2555
SENATOR DOLLINGER: Even though
he's involved in the culpable conduct of
resisting arrest and failing to follow the
directions of a police officer?
SENATOR BALBONI: Well -
SENATOR DOLLINGER: Excuse me,
Mr. President. Will Senator Balboni yield to
another question?
SENATOR BALBONI: Mr. President,
I'd like to respond.
SENATOR DOLLINGER: I'm not sure
I asked a question, Mr. President.
SENATOR BALBONI: I'm never
really good at being the witness in a
cross-examination on the floor of the
Legislature.
Senator Dollinger, was the
individual convicted of the felony of
resisting arrest? That's the first inquiry
you must make, and that's absent from your
scenario.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Balboni will yield
to another question.
ACTING PRESIDENT MEIER: Senator
2556
Balboni, do you yield?
SENATOR DOLLINGER: Is it not a
felony to resist arrest from a police officer
and, when you're under arrest, to fail to
follow the lawful direction of a police
officer in this state?
SENATOR BALBONI: Mr. President,
as we know, the conviction of a felony means
that a jury of his peers has found that in
fact he didn't resist arrest. So was he
convicted of a felony? If he was, then that
sets up this direction, this bar.
But it does not -- again, it does
not stop the ability after the individual if
it is in fact police brutality from, number
one, going to a prosecutor and having a grand
jury go after the police officer or bringing a
civil rights action lawsuit.
As you and I both know, it is a
much better venue to bring an action against a
police officer as a federal civil rights case
than it is in the state court. As a matter of
fact, it's been -- in the Nassau County
courthouse, at least, it's always been
considered malpractice to go to the state
2557
court when you have the federal courts right
across the street, supposedly.
SENATOR DOLLINGER: Thank you,
Senator Balboni.
Just briefly on the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I think the
case that I'm talking about actually may bear
some relationship to fact. Someone gets shot
38 times in the vestibule of a building when
he's told he's under arrest and he eventually
reaches into his pocket. The officers, of
course, assume he's reaching for a weapon;
he's not. It turns out he's not. But
nonetheless, the question becomes would that
person have a claim.
This bill is written so broadly as
to say any culpable conduct. Senator Balboni
says, Well, it would only apply if he were
convicted. Of course, if you've been shot 38
times and you don't survive, nobody is ever
going to, quite frankly, charge you with a
crime or convict you of a crime.
2558
So the question becomes -- he uses
the phrase "decedent." And my question, my
guess is if someone dies because of police
excess, they're never going to be convicted of
a crime. And Senator Balboni's goal of
somehow insulating the police doesn't work.
I've debated this bill before. It
is way, way, way too broad. Frankly, Barker
against Kallash, which I'm very familiar
with -- Senator Balboni and I have had a
number of discourses about this bill in the
back aisle of the Senate, Mr. President -- one
of the worst decisions ever from the New York
Court of Appeals, holding an 11-year-old who
takes fireworks from someone's house, tries to
put them in to create a big cherry bomb, blows
off his fingers, can't bring an action against
the guy who owned the fireworks in the first
place.
He wasn't making a pipe bomb,
Senator Balboni. He was making a firecracker.
It's something that kids do. Terrible
decision from the Court of Appeals. It
shouldn't be codified into law.
This statute is way, way, way too
2559
broad. It goes far beyond what's necessary.
We have this debate every year, Mr. President.
Senator Balboni keeps coming up with new
pitches in an attempt to get my vote. But
frankly, they're well outside. And I'm going
to pass and take no swing at this one. I'll
be voting in the negative.
ACTING PRESIDENT MEIER: Does any
other member wish to be heard on the bill?
The debate is closed.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 605 are
Senators Andrews, Brown, Connor, DeFrancisco,
Dollinger, Duane, Hassell-Thompson, L.
Krueger, Paterson, Sampson, Santiago,
Schneiderman, A. Smith, M. Smith, and
Stavisky. Also Senator Montgomery.
2560
Ayes, 42. Nays, 16.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
660, by Senator Spano, Senate Print 4304, an
act to amend the Public Health Law, in
relation to exempting dentists.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
688, by Senator Lack, Senate Print 1916, an
act to amend the Real Property Law, in
relation to requiring.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Can we please
lay this bill aside for the day.
2561
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
THE SECRETARY: Calendar Number
698, by Senator Maltese, Senate Print 1842, an
act to amend the Municipal Home Rule Law, in
relation to punishment.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Maltese, an explanation has been requested by
Senator Duane.
SENATOR MALTESE: Mr. President,
this is an act to amend the Municipal Home
Rule Law, in relation to punishment for the
violation of a local law.
State law prescribes the type of
punishment which may be imposed by a local
legislature for violations of local law.
Current law allows punishment of a civil
penalty, fine, forfeiture, or imprisonment.
This legislation would actually
liberalize the law, in that it would allow the
punishment of community service as an option
for the violation of a local law.
As we know, there are certain
2562
violations for which the punishment of
community service would be much more suitable,
either on its own or in conjunction with
another of the currently described penalties.
For instance, so-called graffiti vandals would
be punished perhaps by community service of
cleaning graffiti.
This bill has been before us since
1997, when I was asked to introduce it. The
last time the bill moved in the Senate was in
'98, when it passed unanimously. It's
sponsored in the Assembly by Assemblywoman
Audrey Pheffer and is currently in the
Assembly Local Governments Committee.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. I was wondering if the sponsor
could just provide me with a couple of other
examples of local laws where -- a municipal
law where the -
ACTING PRESIDENT MEIER: Do you
wish Senator Maltese to yield?
SENATOR DUANE: Yes, if -
ACTING PRESIDENT MEIER: Senator
2563
Maltese, do you yield for a question?
SENATOR MALTESE: Yes, I do.
SENATOR DUANE: If I may just
finish.
-- where the punishment would be
jail time.
SENATOR MALTESE: Mr. President,
I assume it would provide the alternative
punishment of community service where a local
law that was not inconsistent with state
legislation would provide for punishment.
Article 10 of the Local Government
Law provides that the only place local law
would govern is where the law was not
inconsistent with or conflict with any state
law. I'm looking at the case citations for
local law and looking for specific
transgressions.
I imagine they would probably apply
to zoning, violation of zoning laws, violation
of some local traffic laws, violation of local
trespass laws, and so on.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
2564
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: Senator
Maltese continues to yield.
SENATOR DUANE: Thank you.
At what point does a zoning
violation become an act punishable by time in
prison?
SENATOR MALTESE: Mr. President,
it wouldn't necessarily apply, for instance,
to a misdemeanor. This may very well apply to
something that could be a violation.
For instance, you may have
something to do with having a local village
ordinance, perhaps, that you weren't allowed
to put the produce beyond a certain point in
the sidewalk or that you weren't able to open
the -
ACTING PRESIDENT MEIER: Senator
Maltese, excuse me just a second.
Can we have a little quiet in the
chamber, please.
SENATOR MALTESE: I think where
you would have situations, for instance, that
2565
restaurants wouldn't put tables outside
blocking a sidewalk or something like that.
I'm not saying they would
necessarily provide for imprisonment. I'm
saying that it would provide an alternative
punishment.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes. Yes.
Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: If, under that
example, a restaurant or a store was putting
its produce out beyond a certain point, would
not the better remedy for a business like that
be to pay a fine than it would be for the
owner to do community service? Why would we
want to allow the owner to get off without
paying a fine in a matter like that?
SENATOR MALTESE: Mr. President,
in this theoretical case perhaps what they
2566
could do is open after hours and provide a
gathering place for local use or provide
coffee and doughnuts, perhaps, to clubs or
organizations that might want to meet there or
something.
I think if the situation would
occur, we could come up with community service
that might be more appropriate than a fine.
SENATOR DUANE: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: I'm concerned
that the genesis of this bill and the reasons
for that bill are hazy.
Again, I think that the reason that
we put fines into place, for instance, against
businesses is that they have to pay back into
the local coffers for violating the licenses
or the consumer affairs laws which that
company has been allowed to have.
And, you know, just to give -- you
know, for a store owner to rake leaves, first
of all, would probably displace WTW workers.
But beyond that, why should, you know, a
2567
certain youth group or a group like that get
the largesse of someone else breaking a local
law? I think that what they should do is pay
into the public treasury in a case like that.
Now, if any of these crimes -
well, they don't really seem to be crimes.
But if any of them were punishable by time in
jail, then I think community service would be
a good idea. But I haven't really heard of
the kinds of municipal laws that would be
broken that would require time in jail.
So I don't really think that this
is an appropriate remedy in lieu of paying a
fine. But as I say, I may just not be
understanding exactly what this bill is. But
in order to err on the side of caution, I'm
going to vote no on it.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard?
The debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
2568
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
778, by Senator Leibell, Senate Print 6926, an
act to amend the Civil Service Law, in
relation to providing.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Balboni.
SENATOR BALBONI: Yes, can we
please lay aside the Stafford bill for the
day.
ACTING PRESIDENT MEIER: Calendar
2569
Number 546 will be laid aside for the day.
Senator Balboni, that would
complete the calendar.
SENATOR BALBONI: Could you
please return to the reports of standing
committees. I understand there are several
committee reports to be accepted.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 7306, by Senator Bruno,
concurrent resolution of the Senate and
Assembly.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT MEIER: All
those in favor of accepting the report of the
Rules Committee signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
2570
nay.
(No response.)
ACTING PRESIDENT MEIER: The
report of the Rules Committee is accepted.
THE SECRETARY: Senator Stafford,
from the Committee on Finance, reports the
following bills direct to third reading:
Senate Print 7, by Senator Bruno,
an act to amend the State Finance Law;
And Senate Print 1585, with
amendments, by Senator Stafford, an act to
amend the State Finance Law and the
Legislative Law.
ACTING PRESIDENT MEIER: Without
objection, the bills will be reported to the
Third Reading Calendar.
Senator Balboni.
SENATOR BALBONI: Yes, could we
please take up Calendar Number 795 at this
time.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 795.
THE SECRETARY: Calendar Number
795, by Senator Bruno, Senate Print Number
7306, concurrent resolution of the Senate and
2571
Assembly proposing amendments to the
Constitution.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MEIER: Senator
Maltese, an explanation has been requested by
Senator Dollinger.
SENATOR MALTESE: Yes, Mr.
President. This is a proposal that, while
very dramatic and far-reaching, is a proposal
whose time has come.
Initiative and referendum is very
popular with the people of the entire United
States. It is a proposal that in varied forms
has been passed by the vast majority of states
across our nation. Those legislators that
would seek to keep the legislative process
only to themselves I think are shortsighted.
I think there should be a reexamination.
Senator Bruno has come forth,
working together with Governor Pataki, as a
Governor's program bill, together with many
good government groups that have long
advocated for these proposals, and come up
with legislation that, while far-reaching,
seems to answer every possible objection and
2572
seems to comply with every good government
approach to enlarge enlarging the elective
franchise and giving the people an opportunity
to participate directly in the government.
This particular legislation gives
citizens a more direct role in the legislative
process. Over half the states in the United
States have initiative and referendum.
To clarify for the purposes of some
students who, after this legislation is
passed, will be studying it long after we're
gone, initiative is a proposal placed on the
ballot for a public vote. The referendum is
the ability of citizens to reject or approve
laws enacted by the Legislature.
This can be a method to enact
budget reform, which we can all agree as we
sit here is long overdue, implement tax cuts
that are desired by the vast majority of
people, and certainly for criminal justice
reforms that could go directly to the people
for approval.
This particular bill, this
particular legislation, would require about
250,000 signatures, 5 percent of the statewide
2573
voters who voted in the last gubernatorial
election, just under 5 million. So those that
would say that it is too dramatic, too
innovative, how can you argue with a proposal
that requires a quarter of a million people to
affirmatively sign a petition.
Further, within that quarter of a
million votes, it would require at least 5,000
signatures from at least three-fifths of the
state's Congressional districts -- that would
require 16 Congressional districts -- so that
you would have a broad spectrum of support to
have a minimum of 5,000 votes, so that you
wouldn't be able to gather the quarter of a
million votes from any one population center.
In addition, the constitutional
amendments can only be voted on in elections
when state legislators are on the ballot, and
they must be approved in two separate
elections.
What makes this I&R even more
dramatic is the fact that the Governor's
program bill and our bill, which is well
supported by the Senate Majority, also permits
initiative and referendum on city, town, and
2574
village level.
As far as the petition process
itself, it would be done by the same petition
process that now puts all our candidates on
the ballot. The jurisdiction would be
conferred on the State Board of Elections and,
for those local elections -- village, county,
and town -- the jurisdiction would be
conferred on the County Board of Elections.
The signature requirements would remain the
same as for legislative office.
Mr. President, the further
protections are that a referendum measure
rejecting all or part of a statute cannot be
amended or otherwise reconsidered by the
Legislature for a period of two years. Thus
we can't have a Legislature projecting or
forcing its own will on the electorate that
has decided to implement referendum,
initiative and referendum.
In addition, for the
municipalities, the lesser of 5 percent of
those voters who have voted in the last
gubernatorial election or 30,000 signatures
are needed to put initiative and referendum on
2575
the ballot for the village, city or town.
Mr. President, this is a measure
that here in New York, for the first time, is
on the floor of the Senate. It is not the
first time that it has been proposed by a
variety and a vast number of legislators in
both houses.
As I mentioned at the beginning, it
is a measure whose time has come. And we
should encourage voters to participate in the
electoral process. This is a reform measure
that should be supported by all parties and
indeed will undoubtedly be supported by voters
of all parties.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield,
please.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield for a question?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: With the
2576
exception of Maine, I was wondering if the
sponsor could provide me with any other states
in the Northeast that have initiative and
referendum.
SENATOR MALTESE: Mr. President,
I'll go beyond that. Thank you very much for
the question.
We have initiative and referendum
in the state -- while not in the Northeast, in
the state of Alaska, where initiative was
adopted in 1959 -
SENATOR DUANE: Through you, Mr.
President, I'm only interested in the
Northeast.
SENATOR MALTESE: -- in Arizona,
where initiative was adopted in 1910;
Arkansas, 1909; California, 1911; Colorado,
1910; Florida, 1972; Idaho, 1912; Illinois,
1970; Maine, 1908; Massachusetts, 1918;
Michigan, 1908; Mississippi, where we're
following in their footsteps, 1992; Missouri,
1906; Montana, 1904; Nebraska, 1912; Nevada,
1904, North Dakota, 1914; the great state of
Ohio, 1912; Oklahoma, 1907; Oregon, 1902;
South Dakota, 1898; Utah, 1900; Washington,
2577
1912; Wyoming, 1968.
SENATOR DUANE: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: So the answer
would be Massachusetts.
Not that I don't think we should
follow Mississippi's lead. Of course, I do.
Although we're going in that direction on our
school funding, the way that Mississippi has
gone.
But anyway, I do recall now that
Massachusetts has referendum and initiative.
That's how they eliminated rent control in
that state, usurping local control in, for
instance, the cities of Boston and Cambridge,
where even though those municipalities had
tenant protections, the state through
referendum and initiative eliminated tenant
protections in those municipalities, thereby
depriving both the local governments of their
sovereignty as well as the ability of people
to stay in protected housing and to protect
their housing stock.
2578
I raised Maine because I've
personally gone to Maine on several occasions
to defend what the legislature has done there,
which is to provide equal rights for lesbians
and gay men in that state. And the
legislature bravely -- which is something
which our Legislature has not done -- but
their legislature bravely passed civil rights
protections based on sexual orientation. But
unfortunately, the people in the state of
Maine, because of a very well funded campaign
by the religious -- or I shouldn't say the
religious, the conservative right, overturned
that protection.
So I'm well acquainted with the
impact of referendum and initiative in Maine
and now also, since my memory has been
refreshed, about the impact of referendum and
initiative in Massachusetts as well.
Of course, we could just pass a
sexual orientation nondiscrimination act here
in the State of New York. But as with so many
other issues that our Legislature is
unfortunately not brave enough to tackle those
issues, we're going to call upon the people to
2579
do our job for us.
Not just would it be on protections
for people based on sexual orientation, but
also tort reform, affirmative action, right to
work, death penalty, legalization of
marijuana, medical marijuana, death with
dignity, ballot access, clean money/clean
elections, campaign finance reform, maybe even
the quarantining of people with HIV -- because
from what I've seen in this body, there
continues to be a terrible misunderstanding of
how it is that HIV is contracted and spread -
choice, the Equal Rights Amendment for
New York State.
Of course, maybe if we had a
hearing on some of these issues, we wouldn't
really have to leave it up to people to make
the decisions based on referendum and
initiative. Perhaps, instead of waiting for
everybody in the state of New York to be
educated on every one of these issues -- which
would be a terrific thing, but I actually
thought that we were being elected to be
educated on these issues and make hard
decisions based on the people we represent and
2580
what we believe would be good for the people
of the State of New York.
Now, I understand the purpose of
initiative and referendum. It's "oh, please,
please, we can't do it on our own, make us do
it, please. We can't do it. Make us do it
through a referendum. We cannot do it."
However, actually I think maybe we should take
up some of these tough issues and make the
decisions on our own.
It's interesting that there seems
to be such broad support for this legislation
from upstate communities, because it seems to
me that on an issue like, oh, the dairy
compact or that horse legislation that Senator
Hoffmann just brought up, that actually
upstate New York would be at a great
disadvantage.
Downstaters were very concerned
about the dairy compact. And, you know, in
order to get something like not approving the
dairy compact on the ballot, you would just
have to get, what is it, 5 percent of the
signatures of two-thirds of the Congressional
districts, which would be all of downstate and
2581
the suburbs and Long Island.
And I bet that if this were to go
through and people were to go into the suburbs
and to New York City and Long Island and get
5 percent of the voters in each Congressional
district to sign a petition about not signing
onto the dairy compact, the dairy farmers in
upstate New York would be in very, very big
trouble.
So I don't think this is
particularly good for the upstate folks
either. And I think if we're going to talk
about keeping the state together, I thought
that was the job of us legislators, to decide
what was best for the state as a whole and to
not just focus on our own parochial interests.
Now, one of the favorite initiative
and referendum issues is term limits. So
maybe we could just save the people the
trouble of voting on it and vote in term
limits for ourselves. As many of you know, I
have a bill on this, which bill I would
withdraw if we had any decent campaign
financing in this state.
But we don't have any decent public
2582
campaign finance in this state, and so once
again I guess we'll have to leave it up to the
people to impose that upon us, because we are
unable to do it on our own.
You know, one of the states that I
believe has this referendum and initiative is
Texas. And they're so smart in Texas that
they have referendum and initiative -- and you
know what else? Their legislators only meet
for six months every two years. And they get
paid a heck of a lot less than us. They have
a much smaller staff than we do.
And so if you think about it, maybe
that's what we should do. We should get paid
less, have less of a staff. Because what do
we need it for? The people are going to
decide, and there's really no need for us to
get that involved in all of that.
Mississippi, Alaska, Missouri,
Texas -- North and South Dakotas, or just one
Dakota? I don't remember what was said.
Anyway, I understand that we want
people to have a say in government. I do.
But I was always under the impression that
they did that by voting for us. Of course,
2583
once they vote us in they can't get rid of us.
But again, that's a matter of campaign finance
reform more than anything else.
But if we go ahead and pass this
and we admit that we want downstate to have
even more power than upstate, if we want to
admit that really we're not that necessary for
these jobs, that we don't have to meet for
very often, that we don't really need to get
paid, that we don't really need to have
staff -- I mean, since we're basically
admitting that we can't do our jobs, then, you
know, maybe that is the big reason to vote for
initiative and referendum.
Anyway, I guess -- well, I'm going
to vote against it. But I do see the point.
Because if we're not able to take positions on
things, if we're not able to really have
hearings and to make the hard choices and to
impose campaign finance reform on ourselves,
then maybe what we should do is say, you know:
"We can't make these hard decisions, you're
going to have to make them for us."
Thank you.
ACTING PRESIDENT MEIER: Senator
2584
Nozzolio.
SENATOR NOZZOLIO: Mr. President,
on the bill.
ACTING PRESIDENT MEIER: Senator
Nozzolio, on the bill.
SENATOR NOZZOLIO: Mr. President,
my colleagues, I rise in support of this
legislation. Clearly, because we are a
government of the people, not a government of
the government, and that we have nothing to
fear from this legislation, in providing the
opportunity for our citizens to decide
measures for themselves.
One of the first measures I
sponsored when I was elected to the State
Senate was a measure that called for the
establishment of initiative and referendum in
New York State. The first cosponsor of this
legislation was then-Senator George Pataki.
Senator Pataki then, Governor Pataki now
supports this legislation and believes, as I
believe, that initiative and referendum is the
very core of democracy, ensuring that all
people have a voice in the democratic process.
That in spite of my colleague's
2585
protestations to the contrary -- and I
appreciate Senator Duane's newfound concern
for upstate New York. But, frankly, New York
State is the largest state in the union that
does not have initiative and referendum.
There are other, larger states -
California, Texas, Florida -- that have
initiative and referendum. There are other
states that have population disparities or
projections like New York, with an upstate
area and a downstate area. The state of
Illinois, with its upstate being its urban
area, its downstate being its rural area,
Illinois has had initiative and referendum.
Illinois is a diverse state, as
New York is. Illinois is an agricultural
state, as New York is. Illinois has had
initiative and referendum now for 32 years.
The sky is not falling in Chicago. It's not
falling in Springfield. It's not falling in
East St. Louis. It is a situation that the
people of Illinois and California and Florida
and Texas have this right. It's time for
New York to have this right. New Yorkers
should have the right of this process.
2586
It's a process, as Senator Maltese
has indicated -- and I applaud Senator Maltese
for sponsoring, being the lead sponsor of this
legislation -- that one cannot walk up and
down one city street and obtain the
appropriate signatures to place a measure on
the ballot. There is a requirement of
diversity, a requirement of going around the
state in a diverse area of the state, so that
there is a check in the petitioning process to
put a measure on the ballot, that it will have
more than a localized impact, in the sense
that it must be supported by a number of
counties across New York.
And after initiative and referendum
is established, I believe, it will be a reform
that will serve much as a Damocles sword over
the heads of the senators and assemblymen in
this Legislature, that sword to be utilized by
the people of this state, a clear message to
the Legislature that as we now languish on
issues of budget reform, particularly, where
one house has over 76 sponsors for budget
reform, yet we do not see in the New York
State Assembly a measure for budget reform
2587
coming to the floor because the Speaker of the
Assembly has budget reform locked in, away
from a vote, even though there are more
cosponsors on a particular measure than is
needed to pass that measure.
It's time that the voters, the
citizens of this state had the opportunity of
initiative and referendum. It's time because
it needs certainly to send a clear signal to
those legislators that if they do not reform
state government, the citizens of this state
will.
That's why, Mr. President, I
support this measure, I'm proud to have been a
cosponsor, a sponsor of this legislation
through the years, and I'm very pleased that
it has finally come for a vote in this body.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. It's an unusual occurrence
when I stand up and find myself agreeing with
my colleague from Monroe County, Senator
Nozzolio, and disagreeing with my colleague
from Manhattan, Senator Duane.
2588
But, Senator Nozzolio, I do have
one criticism of your comments. When you were
talking about Illinois has survived initiative
and referendum, and you talked about Chicago,
I thought you would mention that one city of
Republican fame, Peoria. Remember the place
where Richard Nixon said "Peoria is still
there," Senator Nozzolio. And sure enough, it
hasn't been affected by initiative and
referendum either. So on behalf of our
departed president, Republican president,
Mr. Nixon, I just had to mention that.
Mr. President, I rise today because
I think initiative and referendum is all about
reinvigorating New York's democracy. The
effect of initiative and referendum in this
state -- and it's pretty well proven -- is
that the voter turnout, because it's driven in
part by initiative and referendum, actually
goes up about 5 to 8 percent in the states
that have initiative and referendum. Senator
Maltese mentioned that this will get people
involved in their government. But it actually
gets them to go to the polls more frequently.
There's more discussion about the issues.
2589
I believe one of the great things
missing in New York's democracy is that it's
very difficult for us to translate the debate
that occurs on the floor of this building,
either in this chamber or across the way, to
get that discussion going out among the
voters, for them to analyze the components of
a difficult issue, for them to weigh what's
really important, look at their own values,
deal with the practicality of what the future
of this state would be, and come to a reasoned
decision.
I believe that initiative and
referendum will trigger a renewed interest in
the important issues of the day.
And, Senator Duane, I couldn't
agree more that initiative and referendum
poses risks. There's no question there are
important things that I believe in that are
subject to the risk of having to go before the
voters.
But I hope one of the things that
happens if we someday get initiative and
referendum is that those of us who believe
strongly in those issues, the ones you
2590
described, whether it's choice or rights for
gays or whatever those issues are, that we'll
have the courage to stand up and go to our
voters and say "This is the right thing to do.
You ought to vote yes. You ought to be
opposed to the phobias that oftentimes inhibit
the political process. You ought to have the
courage to stand up and say this is about
justice and fairness." I believe that that
debate would be good for the State of
New York.
The other thing that I think is
important to realize is the way that
initiative and referendum works. Everybody
looks at initiative and referendum as purely a
choice between the referendum proposition and
nothing else. That isn't what happens, as a
practical matter.
If you look at the states that have
initiative and referendum, there is a budding
process that leads to an initiative, whether
it's on automobile insurance rates or other
issues. And what usually happens is that the
legislature gets wind of the fact that there
will be a referendum or initiative on an
2591
issue, and it passes a series of changes or it
tries to take care of the issue on its own.
So that when the vote on the
initiative and referendum proposition comes
up, it's not a vote between dismantling the
insurance system and eliminating automobile
insurance rates, it's usually a comparative
vote between the proposition on the ballot and
what the legislature has already done on an
issue.
An effective legislature, working
hand in glove with the initiative and
referendum process, tends to temper the
excesses that initiative and referendum may be
disposed to. I think that that process can
work.
One other thought. We in this
state actually have initiative and referendum,
we've already got it, except it only happens
once every twenty years. It's called the
constitutional amendment call. Senator Marchi
shakes his head. He was here, I'm sure, when
the 1957 call was on the ballot.
Then there actually was a
constitutional convention called in the wake
2592
of the reapportionment difficulties in the
1960s. That led to a constitutional
convention in which people proposed many
propositions for the restructuring of
New York's government. Unfortunately, they
agreed to put all of those propositions in a
single ballot question, and it failed.
In 1977, and then five years ago in
1997, there were two referendum propositions
where we asked the voters: Do you want to
charter a constitutional convention to meet
and redesign your government? I daresay I
think I was the only person in this chamber
who strongly campaigned for a yes vote because
I thought that was the chance to get
New Yorkers involved, much like initiative and
referendum will get them involved in the
future of their state. Unfortunately, the
constitutional convention failed in 1997 as
well.
But, Mr. President, I believe this
is the right measure. I salute the fact that
the Governor is backing this measure. I only
regret that he didn't bring it forward in
1993. It might be a matter of our law right
2593
now had he done so.
And I actually salute Senator Bruno
for bringing it forward. I don't think
there's any secret as to why that's happening,
Mr. President. The polls clearly show that
initiative and referendum is favored by about
75 percent of New Yorkers. They want a bigger
say in their government.
And, Senator Nozzolio, you're
correct that budget reform hasn't made its way
from this chamber across to the Assembly, but
there are also scores of bills that have been
in the Assembly that have been tied up there
that haven't made it to the floor of the
Senate. We pass hundreds of one-house bills.
Initiative and referendum might
force both houses to come to the table and to
negotiate reasonable compromises. Because the
danger is that if they don't, the voters will
take up the petition process and once again
force the Legislature to act. I don't think
that's a bad process.
Mr. President, I'll conclude with
one other thought. This is a good bill. It
could be even better. And let me suggest how.
2594
I think if we're going to be serious about
initiative and referendum, we need to add a
campaign finance portion to the initiative and
referendum process. We should have the
ability to restrict expenditures by those who
are attempting to influence referendum and
initiative propositions.
I think since we're creating that
right as a matter of the constitution, we
could create a constitutional restriction on
the ability of anyone to pour their money into
a single initiative and referendum question
and therefore dramatically influence the
outcome.
I think the thing to do is to use
this opportunity to set up a campaign
financing system that will apply to initiative
and referendum propositions so that we make
sure that big money doesn't unduly influence
the initiative and referendum process. I
think that would that would make this a better
bill.
But nonetheless, I'm still prepared
to vote for it, Mr. President, because I think
this is all about energizing New York's
2595
sclerotic democracy. And the only way to do
that is to wake it up and to say to the people
of this state: Now is your chance, we trust
you, we trust you to make the right decisions
about who to elect to office, we trust you to
make the right decisions about issues that
affect you.
My personal opinion is, Mr.
President, if this becomes law, four or five
years from now issues as diverse as automobile
insurance, fair housing issues, affirmative
action -- you name it -- all those issues will
be part of the conversation at every dinner
table in New York.
And that, Mr. President, is what
the vision of democracy was all about, people
reasoning among themselves as to what the best
ideas are for their democracy. This bill
gives us a chance to get there.
ACTING PRESIDENT MEIER: Senator
Ada Smith.
SENATOR ADA SMITH: Thank you,
Mr. President. Would the sponsor yield for a
copy of questions?
ACTING PRESIDENT MEIER: Senator
2596
Maltese, do you yield for a question?
SENATOR MALTESE: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Maltese yields.
SENATOR ADA SMITH: To get a fair
understanding of this legislation, I'd like to
ask you a couple of questions about the
portion that deals with the municipalities and
the cities. Let's use New York City as an
example.
If a group wanted to put something
on the ballot, I believe you said it was
30,000 signatures necessary?
SENATOR MALTESE: It would be
lesser of 30,000 or the 5 percent of the
people who voted in the last gubernatorial
election.
SENATOR ADA SMITH: Thank you.
No county restrictions, no
restrictions as to the boroughs?
SENATOR MALTESE: The section
that it's in, Senator Smith, is page 5 -
you're right, Tom -- it would be starting at
line 42: "Signatures of registered electors
2597
of such municipality equal in number to at
least 30,000 or 5 percent of the votes cast in
said city, town, village, or county for all
candidates for governor at the last
gubernatorial election, whichever is less."
SENATOR ADA SMITH: So in
essence -
SENATOR MALTESE: You could
gather them all in your Senate district,
Senator Smith.
SENATOR ADA SMITH: Well, I was
going to suggest that since you and I and
probably Malcolm, we get about 8,000 to 10,000
signatures for our reelection, that if we had
a referendum idea, the three of us could get
it on the ballot easily.
SENATOR MALTESE: Mr. President,
I have no doubt that there are many issues
that we are in agreement with that we could
put our heads and our petition gatherers
together and be able to comply with the
requirements of this legislation.
SENATOR ADA SMITH: The point
that I'm attempting to make is that I'm in
favor of this legislation, but it would be
2598
very easy, you are making it easy for people
to be able to participate in government. And
that is what it should be about. Am I
correct?
SENATOR MALTESE: Yes, that is
correct, Senator Smith.
SENATOR ADA SMITH: Thank you,
Senator Maltese.
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor please yield, or
would Senator Maltese please yield?
SENATOR MALTESE: Yes.
SENATOR HEVESI: Thank you, Mr.
President. Just briefly.
Presumably, under this bill, when
the petitions are circulated they would have
to have on them the initiative or referendum
wording on them as they're being circulated?
SENATOR MALTESE: Yes. Mr.
President, the wording would be submitted to
the Attorney General and the Attorney General
would come up with a 100-word limitation to
putting it into the proper form.
2599
There's a safeguard here that even
if the Attorney General didn't come up with
the 100 -- the proper wording for the 100
words, that the wording that would be on the
referendum or on the petition itself would be
judged to have complied as long as it came up
with a substantial compliance with the law.
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield?
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Thank you, Mr.
President.
I wasn't going in this direction,
but based on your last answer, you're not
suggesting that the Attorney General is going
to word the initiative and referendum, the
Attorney General would be responsible for
ensuring that it is of a certain size and the
actual wording would still be left to whatever
entity decided to attempt to place the
initiative or referendum on the ballot; is
2600
that correct?
SENATOR MALTESE: Yes. I think
we're in somewhat an uncharted terrain.
At the same time, Mr. President, I
don't believe that any Attorney General would
seek to thwart the will of the people where
you have a substantial number of the
electorate wishing to put a question on the
ballot.
SENATOR HEVESI: Thank you, Mr.
President. Will the sponsor continue to
yield?
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: He
yields.
SENATOR HEVESI: Thank you.
Is there any process for a public
hearing or discussion prior to the Attorney
General attesting that this is the language
we're going to use, or subsequent to the
petitions being circulated, to change the
language in conjunction with public discourse
that arises out of the circulation of
2601
petitions in a campaign to achieve the
objectives of the entity that brought this
initiative or referendum?
SENATOR MALTESE: Mr. President,
no. The answer is no.
But I think that any sponsors of
initiative and referendum would be guided by
the past actions of the some 27 or 28 states
that have varying forms of it.
In addition, any provision, any
proposed ballot or petition wording it would
seem to me would have to have a substantial
amount of support. And in that gathering of
people of like minds, you would have, I think,
enough not only lawyers but enough people,
public-spirited citizens that would come up
with wording that would seem to accomplish the
purpose of the initiators and at the same time
be in accordance with the vast majority of the
supporters of the proposal.
SENATOR HEVESI: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Hevesi, on the bill.
SENATOR HEVESI: Thank you, Mr.
2602
President. I thank the sponsor for -- or
Senator Maltese for his patience and
explanation.
I just took the rather circuitous
step of drawing out arguments against this,
though I am actually going to support this
legislation. The reason I do that, and I'm
taking a strange route in order to do it, is
that I don't like initiative, I don't like
referenda. There are a slew of problems with
it.
One of them is the one I just
articulated where, you know, you can have a
proposal to have the government hand out
$20 bills on the street corner, and I
guarantee you I can come up with a way to word
that that people vote against it. And we've
seen this all the time.
And what we also have seen is in
other states that have referenda and
initiative, that those populations pass
separate and directly conflicting referenda
and initiative. It's happened. Where you cap
the amount that you can be taxed and then you
provide a certain tax for a certain particular
2603
service to be provided.
So I don't like them.
Notwithstanding the fact that it is -- it
sounds democratic, and it is. I mean, this is
true democracy. Referenda and initiative is
true democracy, as in ancient Greece. What we
do is here is representative democracy, and we
actually don't do a very good job of that.
Which is the reason why I'm going to
ultimately support this bill.
But lots of problems with
initiative and referenda. And I would suggest
that if we are fortunate enough to pass
this -- and I'm going to articulate the reason
why I support it -- that Senator Dollinger's
comments, which is the first I heard anybody
articulate this, of campaign finance for this,
is absolutely essential. It's a brilliant
idea. I don't throw that out lightly.
Because one of the main problems
with putting things on the ballot for
everybody to vote on is that the limited,
narrow interests that control the wording,
they control the flow of information, that
because they are generally well financed, that
2604
influence needs to be compensated for by other
entities who may not have the financial
wherewithal and resources to do that.
So if we do this, and I hope we do
it, I hope that somebody would listen to
Senator Dollinger. It's a good idea.
Now, having said all of the
problems that I have with initiative and
referenda, Senator Duane stood up on this
floor not too long ago and articulated a whole
slew of reasons why this is a bad idea. And I
agree with him on almost everything except the
conclusion.
This broken system of government in
Albany has to change. This legislative system
is absolutely horrible. It is not a
representative democracy, or it is only in
name. This is a process that is
constitutionally driven here in the
Legislature. The reason why we don't have the
campaign finance legislation that Senator
Duane articulated which would, as has been
replicated on the federal level -- and I
believe the recent federal legislation on
campaign finance reform will facilitate more
2605
reforms federally. But the reason we don't
have that here in New York State is the same
reason why we don't have a slew of other
reforms that more adequately and accurately
reflect the will and beliefs of people in this
state.
This process is broken. And though
members of the majority in both houses -- and
this is not just an indictment of the New York
State Senate, this is an indictment of the
New York State Assembly and the process that
has evolved over the years that is -- I'm not
going even going to lay blame at the
legislative leaders. Because the legislative
leaders here in Albany are operating within
the confines of a system that is defined in
the State Constitution.
If you believe in and understand
and appreciate the precepts of how political
entities will behave, people being political
entities, the way our system of government
works here in Albany is logical. It is also
horrible public policy, a horrible public
policy mechanism. This is bad government we
do here. And I'm not casting blame on Joe
2606
Bruno or Shelly Silver or anybody else. I'm
casting blame on a process which is ironclad,
dictated by the State Constitution.
And I'll tell you, Mr. President,
in 1997, as Senator Dollinger brought out
before, we had the option of having a state
constitutional convention. I was wrong, Mr.
President, in 1997. I spoke out against it,
fearful of the changes that Senator Duane and
some of my other colleagues have articulated
that we will open up the State Constitution to
potentially malevolent changes.
I have since, being a member of
this house, being a part of this Legislature
for the past three and a half years,
completely changed my opinion on this. I'm
willing to risk all of that. We must change
the structure and the process.
If I could have my way, Mr.
President, we would only have initiative and
referenda to make constitutional changes to
the legislative process of the State of
New York. We can't do that. I understand why
we can't do that. But I'm willing to go ahead
and take the risk. Because if we are able to
2607
make those fundamental changes, we,
interestingly, won't need to have the system
that we are going to put in place today.
Because then we would have true
representative democracy. Then the voices of
the people who this legislation presumes to
speak for would be properly articulated by
their representative officials in state
government. That's us.
We can't do it now, as much as we'd
like to, as much as we try to. And so as a
last resort, I embrace this legislation, with
the caveat that I want Senator Dollinger's
financing of it.
But having said that, Mr.
President, I don't think this is going to
ultimately become law. So I use this position
now as a bully pulpit because, short of making
that change -- because again, I don't think
we're really going to go ahead and do this -
short of making that change, something has got
to give. This is bad government we are
practicing here in Albany. And no one person
is to blame. The process is to blame. Let's
fix it. This is one way to do it.
2608
I'll be voting in favor, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Hoffmann.
SENATOR HOFFMANN: Thank you, Mr.
President.
I'm somewhat bemused here in the
chamber listening to pieces of speeches that
I've given over the years going back many,
many years. Some people here who have served
for 18 years will remember a few of the things
that I talked about a long time ago from the
other side of the aisle, about reform.
And I'm invigorated and encouraged
to see this piece of legislation before us
today because it makes such an indication of
the change in the mood here in the Capitol
over the last few years.
Certainly since Senator Bruno
became the leader of this chamber we have seen
many, many attempts at meaningful reform. And
I know Senator Nozzolio spoke about the
failures of other house to enact some of the
other reforms that we have enacted. And I'm
not going to dwell on those, because I would
2609
like to focus instead upon the hope that I
think this measure offers.
I was proud to put my name on this
as a sponsor, along with Senator Bruno, as the
prime sponsor, Senator Maltese, my
distinguished colleague to my right, Senator
Padavan, Senator Nozzolio, Senator Bonacic,
Senator Seward, Senator Spano, Velella, Meier,
and Kuhl.
And I recognize that this
particular measure may go through a number of
changes before it is ultimately adopted, and I
suppose there is the possibility that it may
never become a constitutional amendment in the
State of New York. But the mere fact that we
are standing here today debating it signals a
milestone in the history of open government
and the need for debate about reforms in this
state.
I've carried bills that dealt with
open meetings, that dealt with accounting of
political contributions, that dealt with
disclosure. And everything that I ever
introduced in the area of open government was
designed to bring greater accountability.
2610
But in the end, it is the ability
of the people themselves to enact change that
would create the greatest presence for
accountability in this state and would force
this and all subsequent legislatures to
remember to whom we are ultimately
responsible.
I just particularly love
Article 20, under initiative and referendum,
on page 3 that reads, from line 19, Section 1,
"Notwithstanding any other provision of this
Constitution, the people reserve to themselves
the power to propose laws and to propose
amendments to the Constitution and to adopt or
reject the same at the polls independent of
the Legislature, and also reserve the power,
at their own option, to so adopt or reject any
act or section or part of any act passed by
the Legislature."
Should this become law, it serves
as a new check and balance upon the
Legislature of the State of New York. And
what I hear from my constituents in Central
New York, in the 48th -- soon to be the
49th -- Senate District, is that they feel
2611
this Legislature is woefully out of touch,
lacks accountability, lacks a sense of
responsibility to the people who send us here.
We read the editorial analyses, we
see the letters to the editor, and people on
the street say "You all just stay there
forever, we don't even have the ability to
defeat you, and what are you doing for us if
you can't even pass a budget on time." And in
fact, they're right, most of the time.
With initiative and referendum as
the law of the land in this state, people who
sit in this chamber and people who sit in the
other chamber would no longer have the same
kind of imperial attitude that we have seen in
far too many instances.
It's not across the board. Much of
it, as was described from across the aisle not
too long ago, is because the system itself has
become so moribund. It's time for it to wake
up. And if this is the mechanism to wake it
up, then let us go boldly in that direction.
Now, I recognize the risks along
with everyone else. And let me say for the
record that I worry -- as a representative of
2612
many rural areas, I worry that some of the
issues that affect my constituents could
suddenly be demonized and be cast to the
public in a totally unfair light, be subject
to referendum, and be outlawed in this land.
I have already heard from friends
who are in the New York State Food Harvesters
Association because they realize that in other
states initiative and referendum has caused a
tremendous handicap on the activity which
they, in a licensed and lawful way, engage in.
I also understand that people who
hunt face some risks, I among them. As a
licensed hunter in New York State, I would
worry that people who suddenly characterize
hunting in an unfair and inaccurate way could
capture the limelight and momentarily take
attention way from the reality of proper
management of wildlife in this state and
hunting could in fact be outlawed, or some
portions of it could.
I want to be sure that we prevent
those types of inappropriate use of referendum
and initiative should it become law. Can I
anticipate all of them? No, I don't think so.
2613
But this is the beginning of a magnificent
debate that this state has needed for years,
and I'm proud to be part of it.
I thank Senator Bruno for having
the courage to bring this chamber into the
right century by putting initiative and
referendum before it today.
ACTING PRESIDENT MEIER: Senator
Krueger.
SENATOR LIZ KRUEGER: I rise to
speak on the bill.
When I ran for this office, I was
still undecided about whether I could support
I&R because of many of the issues raised
before us today -- the concerns about some of
the states that have moved down that road and
have resulted in conflicting legislation
where, as one person said today, they can pass
a cap on taxes and then mandate expenditures.
But it's only taken me eight weeks
in this body to realize that in fact I do
support I&R legislation and I do believe that
it is critical to open up the debate in
New York State to allow the public more say in
the decisions that are made here.
2614
I urge that we do follow through on
campaign finance reform, and if we don't
attach it to this legislation, that I will
push for it to be one of the first issues
brought to the ballot in I&R. Because this
state cannot go forward unless we address the
issues of campaign finance reform.
I am also optimistic that voters in
this state will do the right thing. I am
encouraged by the research that shows more
people will come out to vote. I am excited
about the possibility that the voters might
determine that by the time we have
redistricting ten years from now, it will be
an independent commission that makes the
decisions about redistricting.
I believe that the people of this
state, in initiative and referendum, would
support choice, would support fair education
funding formulas for our schools, would
support health insurance and other insurance
reform, and that in fact it will force us to
be a better Legislature.
So I am not only voting for this
bill today, I am telling you that while some
2615
people took years to come to the conclusion
that the way we fix government is to explore
greater voter participation through initiative
and referendum, I like to believe I'm a quick
learner, it took me eight weeks in this house
to come to that conclusion.
And I will vote yes.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Liz is a
lot quicker learner than I am. And I like
that you scribbled your notes on a napkin,
which shows how conservative you are.
Let me say that in the past I have
been against I&R. And I was against it
because I come out of a good government group.
As many of you know, I was the president of
the League of Women Voters. And I felt that I
was elected to take those hard votes.
And I also felt that too often we
have seen that I&R has been influenced, very
much so, by big money, by corporate America.
We have seen some pretty catastrophic things
happen in some of the other states in our
union. That is not New York.
2616
And I feel that I could take the
hard votes. I feel that I, you know, have
enough direction and understanding to do that.
But they just -- we don't seem to get many of
the hard votes here. They just don't come up.
I would like them to come up, and they
haven't.
And that's why I am changing my
opinion too. But it took me a lot longer than
eight weeks to arrive at this.
I feel, as many of you, that our
government is really not functioning. I think
we are dysfunctional. The fact that we
haven't passed a budget on time in the 18
years I'm up here is an embarrassment to me.
I go home and I hardly know what to tell my
constituents, because I firmly believe it is
possible.
I believe very, very strongly in
campaign finance reform, but we can't seem to
get that moving here. I believe in
legislative reform. There's so many things
that I would like to see happen that hasn't
happened.
And while I am somewhat concerned
2617
about what will happen if the people of our
state do have their say, I am encouraged by
the fact that our population is not the
population of some of these other states that
had me very concerned by past I&Rs in those
states. And I think our state is more
progressive, its population is interested in
many of the things that I'm interested in that
I would like to see happen in our state
government.
And I guess because I am inherently
an optimistic person, I'm going vote in favor
of this and hope that it will come up also in
the other house and that maybe, through our
good offices, we can also influence what
happens through the I&R process.
So I will be voting yes.
ACTING PRESIDENT MEIER: Any
other Senator wish to be heard on the
resolution?
Debate is closed.
The question is on the resolution.
All those in favor -- Senator Dollinger, why
do you rise?
SENATOR DOLLINGER: Just to
2618
explain my vote, Mr. President.
ACTING PRESIDENT MEIER: Well,
let me start the roll call.
The question is on the resolution.
The Secretary will call the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Dollinger, to explain his vote.
SENATOR DOLLINGER: Thank you,
Mr. President. Just two quick comments on
some of the things that were said.
One is Senator Oppenheimer talked
about big money in the initiative and
referendum process. Senator Oppenheimer, I'd
just suggest that big money is already a huge
part of what goes on in this state, except
those contributions all come through some
other door. They don't come through the front
door where it's easily recognizable, they all
come through the back door, through party
committees, through soft money, through
contributions to candidates.
If we had initiative and
referendum, you'd at least know that the
tobacco industry is pouring millions of
2619
dollars in, and that could be a factor in your
judgement about tobacco legislation. I think
at least it would be upfront and aboveboard.
And with respect to Senator
Hoffmann's comment about the Legislature being
woefully out of touch, the perception that
somehow the Legislature is woefully out of
touch, I agree, Senator Hoffmann. The problem
we have in this state is that that's what the
people think about the Legislature, but they
don't think about their legislator that way.
That's the problem.
All of us that win elections, we
keep coming back and yet we don't do what the
people want -- and they still send us back.
That would suggest that they don't believe
they have any other alternative.
By opening the door to initiative
and referendum, Mr. President, we would give
them some alternative for them to take their
frustrations, come to government, petition us
for change. If we don't do what they want,
give them the ability to put it in place
themselves.
Mr. President, I hope this becomes
2620
law. I don't want to debate it any longer.
I'd like to act under it. I will lead the
initiative and referendum process for campaign
finance reform. When we get it, we'll have
all the changes we need and this Legislature
will do the job it's always been sent here to
do. We will build bipartisan coalitions, we
will govern the way the people want, and we
won't ever need to do it again.
If we get that, I will start it,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger will be recorded in the affirmative.
Senator Schneiderman, to explain
his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I am voting in the affirmative
because I think the general concept here is
perfectly valid.
I do want to note, however -- and I
think this is consistent with the fact that I
think this particular bill is more political
than legislative in intent and has more to do
with the Governor's other needs than with any
2621
actual effort to change the law -- I want to
note that there's a fundamental flaw in this
legislation that, if we ever get serious about
passing initiative and referenda, I hope will
be corrected.
And that's the section of the law
that prevents us, as a Legislature, from
correcting any problems with initiative and
referenda for a period of two years.
In the City of New York, we have
initiative and referenda. That's how we got
term limits. But the legislature can act.
It's a law like any other law. The
legislature may face the wrath of the voters
if they try and undo an initiative, but they
have the power in case something comes up.
This would tie our hands for two
years. And I would urge that as we bang this
issue around -- because it's not going to get
resolved this year -- we take that provision
out of it as we move forward. I'm hopeful we
can pass a better bill at some point in the
future.
ACTING PRESIDENT MEIER: Senator
Stavisky, to explain her vote.
2622
SENATOR STAVISKY: To explain my
vote, Mr. President.
I think that Robert La Follette and
the people from the progressive era would be
very proud of us today. And I wish to vote in
the affirmative.
Thank you.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the affirmative.
Senator Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President.
I'm going to reiterate my no vote.
And I do want to say that I would make a -
well, I guess I can't make a wager, because
I'm not sure that's legal. But in my head
I'll make a wager with myself that those that
vote in the affirmative on this, even after
initiatives and referendums get passed, will
not be cutting back on their salaries or the
time they spend in Albany or their staffs,
even though their work load will be greatly
diminished because actually they won't have to
make that many hard decisions.
And interestingly, the one hard
2623
decision which everyone here seems unable to
make, regarding the budget, is not something
which will probably be covered by initiative
and referendum.
So, you know, I'm not sure why it
is that those of you who are voting for this
really think that there's of the role for you
to be here at all, except to get the budget
done, which you don't seem able to get it
done.
So I'm voting no, Mr. President.
But I'll see whether I beat myself in this
wager. Thank you.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Senator Bonacic, to explain his
vote.
SENATOR BONACIC: Back in 1992, I
cosponsored this legislation of initiative and
referendum with Assemblyman Nozzolio.
And I am a cosponsor of this again,
for the simple reason that I believe in the
intelligence and wisdom of the people we
serve.
When we first ran for office, we
2624
said we will be their voice, we will be their
servant, and they will be our master. This is
the most powerful weapon you can give your
constituents. It gives the people a voice and
it strengthens democracy.
For those simple reasons, but very
powerful reasons, my vote is in the
affirmative. Thank you, Mr. Speaker.
ACTING PRESIDENT MEIER: Announce
the results.
THE SECRETARY: Ayes, 57. Nays,
3. Those voting in the negative are Senators
Duane, Hassell-Thompson, and Montgomery.
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Balboni.
SENATOR BALBONI: Mr. President,
can we go back to motions and resolutions.
I believe there's a privileged
resolution at the desk by Senators Marchi and
Gentile, and I would ask that the title be
read.
ACTING PRESIDENT MEIER: Motions
and resolutions.
The Secretary will read the
2625
privileged resolution.
THE SECRETARY: By Senators
Marchi and Gentile, Legislative Resolution
Number 5232, honoring John Bruno of Staten
Island for his long and distinguished service
to his profession, his community, and his
church.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Move to adopt
the resolution, please.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Balboni.
SENATOR BALBONI: Is there any
housekeeping at the desk?
ACTING PRESIDENT MEIER: No,
there is not.
2626
SENATOR BALBONI: There being no
further business, I -- whoops.
Mr. President, please recognize
Senator Dollinger.
ACTING PRESIDENT MEIER: Senator
Dollinger, why do you rise?
SENATOR DOLLINGER: Mr.
President, may I have unanimous consent to be
recorded in the negative on Calendar Number
713 and 714, Mr. President.
ACTING PRESIDENT MEIER: Without
objection, Senator Dollinger will be recorded
in the negative with regard to Calendars 713
and 714.
SENATOR DOLLINGER: Thank you,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Balboni.
SENATOR BALBONI: Now, there
being no further business before the body, I
move that we adjourn until Tuesday,
April 30th, at 3:00 p.m.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Tuesday, April 30th, at 3:00 p.m.
2627
(Whereupon, at 5:05 p.m., the
Senate adjourned.)