Today is the day when the State of New York was due to turn in their documents stating why the “message of necessity” used to skip the mandated 3-day wait and push the SAFE Act through to a vote (without any debate or the chance to read the legislation) was constitutional under a “show cause” order from the Appellate Division of the state’s judicial branch. But rather than providing support of their view of the constitutionality of their actions, Governor Cuomo and his cronies argued that the judicial branch has no jurisdiction and cannot interfere with the Legislative and Executive branches (full text here). In short, FOAD. The court will make its final decision on this matter shortly, either handing down the injunction or kicking the can down the road to the next level. Until then, make the jump for Bob Schultz’s response (the plaintiff in this case) . . .

“We have received the State’s response to the Court’s Order to Show Cause. We plan to be at the Appellate Division first thing Monday morning to file a Reply,” said Schulz.

“The essence of the State’s response, is that under the “Separation of Powers” doctrine, the Court should leave the Executive and Legislative branches alone when it comes to the use of a Message of Necessity and this would not render the three day rule meaningless.”

“In essence and especially with regard to controversial issues, the Governor and key legislators want to enact laws quickly, in less than three days, suspending all public discussion and deliberation.”

“We say that the “Separation of Powers” doctrine does not establish a wall of separation eliminating checks and balances between the Judiciary and the two political branches.”

“We hear too often “this is just the way Albany conducts its business, always has and always will.” We are part of a growing movement of people in this state who aren’t as concerned with who we voted for or what party we belong to, as much as what is now happening to our state and our country which very much concerns us. We say “Hogwash” to the Albany status quo and will do everything we can to restore constitutional governance carried out in decency and good order,” Schulz concluded.

I asked them what the next move is, and here’s their game plan:

Next move is a written reply from us on Monday if the Appellate Court will accept it.

Appellate Court may then decide on the preliminary injunction by Thursday. We have also asked our overall Appeal be expedited and are waiting to hear movement on this.

We want to get to the Court of Appeals and get that decision overturned. It can’t be that the Message of Necessity has no arbiter or check on its use. If it is not going to come from the Court, it will have to come from the People!

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56 Responses to BREAKING: NY on SAFE Act: Judiciary Has No Power Over Legislative, Executive Branches

        • No, but Schulz is. The Appellate Divisiion is bound by a prior decision of the Court of Appeals (NY’s highest court) that the statement of facts in a determination of emergency is not subject to judicial review. That doesn’t mean, though, that the SAFE Act is not subject to review, only the manner in which it was enacted is beyond judicial purview.It will take the state’s highest court to overturn its own controlling decision, so Shulz, I would suspect, is anticipating a loss at this level–which is why he is trying to push it through as fast as possible this court so that he can get to the only one that can even consider grantinghim any relief.

  1. If they ignore the 2nd A, why would anyone expect them to respect any other part of the constitution or other law?

  2. Is this the first time legislation has been passed using the “message of necessity” shenanigans? If not, and the courts were not involved the other times, that does seem to set a precedent of non-interference by the courts.

    • I have read elsewhere that it has been used dozens of times–and judicial review has been sought–unsuccessfully.

  3. Cuomo will still be reelected with at least 60% of the vote. Or he gets elected president which is probably more likely.

    • Sorry Jerry-while the so called King of NY can play that back home-I find it difficult to believe the rest of the country would elect a man who has proven that he is willing to play dirty and essentially say its my way or the highway. Maybe Cali and NY but the rest of the country is gonna be rather reluctant to give him a shot at the top……well maybe MASS too……..thankfully there are parts of the country he couldn’t possibly win………

    • I don’t think you can get elected President carrying just 7 states. His poll numbers are even in free fall in NY.

      • Fewest would be 11 but that would include Texas and Florida. Without Texas it would take 13 and without Texas and Florida it would take 15. 🙂

    • Cuomo is a legend in his own mind. He wont be elected. He can’t carry any southern or western states with his nonsense.

  4. So courts don’t affect law now? How about that? Well, my response would be a a bit trite but I would formally request all legal proceedings regarding laws that a judge has no say on be performed in a park or coffee house, as a courthouse is a place where judicial chambers are located.

    In short, good luck with your law with no court to have it heard out in or anyone sentenced. But that’s just my reflective reaction to breaking cardinal rules of basic checks and balances.

  5. “Governor Cuomo and his cronies argued that the judicial branch has no jurisdiction and cannot interfere with the Legislative and Executive branches.” TRANSLATION: ” We don’t want checks and balances interfering with our agenda, we prefer our dictatorship, you are all just subjects!”

  6. “The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

    Judge Alex Kozinski

  7. Are you kidding me??? I mean seriously he is old enough to have taken civics in school right?? He is advocating tyranny plain and simple. Governor Cuomo if his statements stand correct is telling us the executive branch and the legislative branch can simply cut out the judicial branch out of expediency???
    So tell me is this nut case trying to piss off every judge in NY while he is at it? He has managed to have the majority of counties against him, the Sheriffs are against him or scared to say anything, now the judges? Just hand him the nightlock and let him save some face….

  8. Im sooooo glad to see the courts stand up for unconstitutional actions, and I hope cuomo is festering in his own embarrassment right now. This was a win for the good guys!

  9. Im so glad to see the courts stand up for unconstitutional actions, and I hope cuomo is festering in his own embarrassment right now. This was a win for the good guys!

  10. I, uh, wow, that’s some, yeesh, yeah, that takes some balls.

    I’m noticing a pattern recently with government saying asking the same people a second time or some other bureaucrat in a related organization counts as “legal recourse”, like some CCW permit appeals or the freaking drone programs. This SAFE Act just seems to be a case of Cuomo the 2 year old yelling, “No!” In other cases, like so much of the Patriot Act and the warrantless wiretapping case the Supreme Court ruled on, they do everything possible to keep individuals from having standing to bring a lawsuit. E.g. The USSC case got thrown out because the plantiffs couldn’t prove they’d been monitored because the Feds said that information was secret (Yay National Security cop-outs!).

    Is this sort of legal shenaniganry a new tactic, or am I just more aware of it now?

    • Politicians have become increasingly bold over the past decade. It’s not even a partisan issue if you take an honest look- its just that at this time the Left has the voice.

      Consider the Patriot Act- initiated by Bush 43 administration but renewed by the Obama administration. Or an even better example is the construction of the Utah Data Center despite the fact that an Act of Congress forbid it.

      • Just remember who signed the bill that took your right to buy new auto-guns away, Ronnie Reagan. It’s been all downhill from there.

  11. Maybe I am reading this wrong, but here is what I read.

    I do not believe that Cuomo is saying “the executive branch and the legislative branch can simply cut out the judicial branch out of expediency”

    What they are saying is the “judicial” branch cannot define what is or is not an emergency.

    They are trying the same BS in CT where we have something called E-CERT. Emergency Certification which basically does the same thing they did in NY.

    I am not sure the courts can define what an emergency is which what I believe they are trying to do here.

    It will be interesting to here what they both have to say. On one hand, if there is no definition, what is to stop them from declaring every law an emergency. On the other hand, should the unelected judges decide what is or is not an emergency.

    I am not lawyer, just playing along but interesting.

    • I agree with your analysis, but not sure I agree with the conclusion. A real responsibility of the courts is to interpret the law and constitution in situations where they are not entirely clear.

    • what world do you live in Carter started pushing gun control and destroying the economy just like Obama’s now Reagan was the one that rebuild everything that carter destroyed including dropping the unemployment rate below 05 percent creating 17,000,000 jobs winning the Cold War and making the economy the best its ever been in the history of the united states but apparently you missed history class

  12. Words cannot convey my disgust. The foundations of our system being completely disregarded. What the hell is wrong with these people? Do they really believe that we were in a coma during history class?

  13. Nick: read the brief you provide the link for. The argument made by the attorney general in this case is not as broad as the title to your article suggests. What the AG is arguing is that the sufficiency of the facts stated by the Governor in a “certificate of necessity” is not subject to judicial review. He cites Maybee v. State for that proposition, and, in fact, Maybee says precisely that. Now, I am an Oregon attorney, and know little about New York law, but the language of “Article III, Sec. 14 of the N.Y. Constitution does seem to give discretion to the governor to state the “facts” as he understands them to be: Art III, Section 14 provides, in relevant part: “No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage. . . .” The key language is “facts which in his or her opinion necessitate.” That language is similar to the sole discretion” language you see in a contract: it is not subject to being second guessed by others. Is that good policy? Probably not.

    • This is exactly correct. The only issue being litigated at this point is the certificate of necessity, not the constitutionality of the SAFE Act vis a vis the Second Amendment.

    • Great post! I’m also not a constitutional lawyer however I was reading Article 3 section 14 also talks about having the seal of the state to be required in order to allow the governor to bypass the 3 day rule. Perhaps this is something that can be argued in the courts.
      I am currently writing my legislators in Broome County to get them off their butts and vote on repealing the SAFE Act along with the rest of upstate NY. I hope that the rest of my NY neighbors are doing the same thing.
      I have drawn my line in the sand. They haven’t stepped across it yet, but they are definitely leaning over it.

      • I’m your neighbor up in Chenango County and I’ve written every one of my legislators as well. It’s gonna be a long battle but most legislators from here are on our side with this issue. It’s the damn down staters… they think what is good for Manhattan is good for the whole state.

  14. I’ll tell you, the way these egomaniacal blimps operate around here I’m surprised to hear that NY has a Constitution at all. The provision at question essentially reads that all bills much wait 3 days before being voted on except if the governor doesn’t want to (de facto), in which case he can formulate a Message of Necessity and (if the Legislature falls for it), can be immediately passed.

    End of story? Not quite. The provision includes a demand for an explanation of why this should be so. This farce has been used many times by not only Cuomo but by others as well and the Court of Appeals has declined to get involved. But Cuomo’s explanation for this “Necessity” is very weak – dog ate the homework – kind of thing. Leaving plenty of cause to change their minds.

    Nevertheless, the state coming back at a show cause order by this el lameo message to FO is waving a red flag before the judicial bull and may well place them on a receiving end of some very sharp horns. Here’s hopin’.

  15. The Asst. AG should be held in contempt and locked up for this drivel.

    He cites Maybee, 4 N.Y.3d: “… As long as the Governor’s certificate contains some factual statements, the sufficiency of the stated facts to support the Governor’s conclusion may not be challenged.”

    The problem with that argument is, of course, that it doesn’t apply because the governor’s message of necessity doesn’t actually contain ANY facts whatsoever. It states:

    “Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the State in order to protect its children, first responders and citizens as son as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State. For this reason, in addition to enacting a comprehensive package of measures that further protects the public, immediate action by the legislature is imperative.”

    That does not contain a single factual statement. It does not provide any measure of dangerousness to support the claim that the legislature must act without delay; nor are the statements of the bill’s efficacy truthful. The bill does not ban “ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices”; it RESTRICTS ownership, purchase and sale of these devices TO CERTAIN PEOPLE. It also does not eliminate them from commerce in New York state. No law will ever eliminate commerce of a product. It might eliminate LAWFUL commerce, but stating that it eliminates commerce is a gross understatement.

    The other merits of the State’s objections to the injunction have some sound legal basis and a chance of success; but the above issues indicate a clear contempt for the judge on the part of the Asst. AG. I mean, he must surely think the judge is a complete moron if he believes the judge would read and accept such statements without disregarding the entire affirmation of opposition as baseless drivel.

    • > I mean, he must surely think the judge is a complete moron

      Have you heard some of the NY Judges? Including the guy who shot a hole in the wall of his office in between a court session recess while playing with his gun and it was later found he signed his own gun permits?

  16. JasonMc’Gregor, Mayor Bloomberg just used the same argument about a possible oversight committee for the NYPD…. did he not?

    And Nor’easter, that may be the case for many types of laws~ though I’d like to think The Courts would exert their power as part of the checks and balances system by demanding a level of strict scrutiny before allowing the unwanted and unwarranted forfeiture of ANY of our long standing, enumerated and incorporatied, natural born rights

  17. I am just a wondering if they really dont comprehend the fact that if the law dont apply to them, then the protections of the law, dont apply to them either!

  18. The issue at hand is not the law, but how the law was passed. SCOTUS, as an example, has held that its not their job to tell the legislative branch how to pass laws, but instead to react to those laws that are passed. It appears much the same is at play in NY.

  19. It’s hard to tell, but the state could be saying the court can’t rule on how the sausage was made, just whether the sausage itself is legal, constitutionally speaking. Not completely insane, but probably not completely true either.

    On the other hand, if the state is saying the court can’t do anything about executive or legislative actions, that means a court couldn’t hear a prosecution of someone charged under the Safe Act. If NY is that stupid, we need to see if someone is putting stuff in the water there.

  20. “Hogwash”.
    Yep, that’s the only rational reaction to the status quo in Albany. Time for the people to take names and kick ass (sequence of those events discretionary).

  21. I find it endlessly entertaining to to survey the legal formalisms and polite, professional language that judges are wont to use when they have to pad out “Ha ha ha. No.” into a complete ruling of respectable length. I’ll be sure to add this ruling to my PDF collection when it comes in.

  22. Very true, NY’er, and I devoutly hope so too.

    Anyway, this isn’t a violation of mere Legislative procedures but a violation of the State Constitution to a basic right. There have been many attempts over the years to control this abuse and this may finally succeed. After all, this is not a device to protect the governor or the legislature but the PEOPLE and if the courts can’t uphold the people’s rights, who can?

  23. Well Cuomonism festers directly from watching the Bama disregard the supreme law of the law without consequences. You know he is wiping his azz with the Constitution and the Bill of Rights. Its working for the Bama so why not all would be tyrants. . Not much more than a wisper from congress to support the document they have sworn to uphold. Unless there are some serious consequences from such actions it will only get much worse.

  24. When you strip people of there defense, that leaves people to come in and take over. I believe everyone should learn how to use a gun at six and get beatens when they mess up. Ny state has gotten soft and have no respect for anyone. This doctrine steps on civil liberties and gives them more wiggle room to take more. With rich people like bloomberg backing this and paying off people and threatened that he won’t back them. Sounds like the rich have over stepped there control.

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