Ravitch Redux

I previously expressed the view that a New York state statute appeared to give Governor David Patterson the authority he needed to appoint Richard Ravitch to the vacant post of Lieutenant Governor. Now an intermediate state court of appeals in New York has disagreed with me.

Fortunately, I was cautious enough in my previous posting to note that I was just parsing the one statutory provision upon which Governor Patterson was relying and to include the caveat that "to be confident, one would need to scour all of NY's constitution and laws to see if there are other provisions that bear on the issue." Often, the essence of being a legal expert is just having read the rulebook thoroughly, so that you know that even though Rule 5 says one thing, Rule 29-B says that something else shall happen in certain cases "notwithstanding Rule 5." There's no great brilliance involved; it's just a matter of being so thoroughly versed in the rules that you know about all the little notwithstandings and howevers.

In this case, having read the court of appeals' opinion, I think they got it right. What the court discovered (with the assistance of counsel, of course), is that there is another provision of New York law that has to be considered.

Governor Patterson relied on the New York Public Officers Law, section 43 of which provides that "If a vacancy shall occur, otherwise than by expiration of term,with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." That seemed to apply, because a vacancy had occurred in the office of Lieutenant Governonr, other than by expiration of term, and there was no provision of law for filling the same. So it looked OK.

But, the court points out, first of all, strictly speaking, the statute does not provide that the Governor can appoint someone to fill the office, but only that he can appoint a person to execute the duties of the office until the office shall be filled by election. That might seem like a distinction without a difference, but -- and this is the crucial point -- the court also observed that the NY state constitution (article IV, section 6) provides that, in the case of a vacancy in the office of Lieutenant Governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy."

Now we have a conflict. The court correctly points out that it could hardly be intended that the temporary president of the senate would "perform" the duties of the Lieutenant Governor but that the Governor would appoint someone else to "execute" the duties of the Lieutenant Governor. Thus, the general statutory provision that the Governor decides who gets to execute the duties of otherwise unprovided-for vacant positions conflicts with the specific provision in the NY constitution that the temporary president of the Senate peforms the duties of the office when the vacancy is specifically in the office of Lieutenant Governor.

Not only do more specific provisions usually control over more general ones, but here the more specific provision is constitutional and the more general one is only statutory. Thus, for two reasons, it seems right to say that the provision giving the duties to the temporary president of the NY Senate prevails over the provision allowing the Governor to name someone to execute the duties.

So I'm officially changing my view. I think the court got the case right.