Tuesday, September 22, 2009

Lieutenant Governor Ravitch Indeed

A fascinating turn in the saga of New York Governor David Paterson’s attempt to appoint a Lieutenant Governor: New York’s highest court, the Court of Appeals, has upheld it! Reversing prior decisions, the court holds that the Governor of New York is empowered to appoint a Lieutenant Governor when that office is vacant.

For those just tuning in, NY Lieutenant Governor David Paterson became Governor when the previous Governor, Eliot Spitzer, had to resign admist a sex scandal (this factoid was discreetly left out of the judicial opinions, but we bloggers get to put it back in). The post of Lieutenant Governor was then vacant — which was no big deal until the NY State Senate had a deadlock crisis that occurred because some Democrats switched to supporting the other side for control of the Senate. The Lieutenant Governor is supposed to break ties in the state Senate, but there was no Lieutenant Governor! So there was a crisis.

To break the deadlock, Governor Paterson wanted to appoint a Lieutenant Governor, but did he have the power to do so? Section 43 of the state Public Officers Law appeared to give him the power to appoint a replacement for any vacant office not otherwise provided for, so he picked Richard Ravitch to fill the slot.

But that just started the ball rolling. Lower courts held that Section 43 didn’t apply to the post of Lieutenant Governor, and they blocked the appointment. Finally, today, the matter fetched up in NY’s highest court, and that court has approved the appointment.

I remarked before that it’s difficult to opine on this case without scouring all of New York’s constitution and statutes. And boy, is that right. Every time you think you understand the issue, yet another relevant provision turns up and needs to be considered.

But having read the majority and dissenting opinions (the vote was 4-3), I’m sticking with my most recent view (which was a change from my initial view). I think the dissent has the better of it.

Section 43 doesn’t provide for the Governor to fill vacancies; he only gets to appoint someone to “execute” the powers of the office until the vacancy is filled by election. In the specific case of the Lieutenant Governor, the constitution itself (Art. IV, s. 6) provides that the President of the state Senate shall “perform” the powers of that office. We can’t have one person “executing” the powers of the office while another “performs” the powers of the same office. So the constitutional provision trumps the statute.

The majority makes the good point that the constitution provides that the legislature shall provide for filling vacancies in office, so it interprets section 43 as providing for filling the vacancy in the LG office even though that’s not exactly what it says. Which would be a pretty good argument, except that the constitution (Art. XIII, s. 3) provides that people appointed to fill vacancies can serve only until the next annual election, but it also provides that the Governor and LG specifically can be elected only simultaneously and quadrenially (so as to avoid having them be from different parties).

So while it’s a close case, and both sides have good arguments, I would say the better view is that the LG post is excepted from the vacancy-filling appointment process.

One thing is clear: as state Senator Dean Skelos says, the legislature should revise the confusing web of interlocking statutes that govern this area, and make clear its desire as to whether the Governor can appoint a Lieutenant Governor or not.

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