Wednesday, July 8, 2009

New York state's constitution and the newly appointed Lieutenant-Governor

New York’s Governor David Paterson - - - who was once the Lieutenant-Governor under New York’s Governor Eliot Spitzer before Spitzer’s scandal-induced resignation in March 2008- - - appointed  Richard Ravitch as Lieutenant-Governor today.  Paterson’s timing is prompted by the power struggle in the state senate; a Lt-Gov. could break the deadlock.  Further, without a Lt-Governor and without a clear "temporary president" of the state senate (given the power struggle), it may be unclear who would assume the governorship if Paterson were unable to serve.

However, the constitutionality of Paterson’s appointment of a Lt-Gov is far from clear.  The New York state constitution does not specifically provide such power.  Article IV, section 6 provides:

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein. The lieutenant- governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant- governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant- governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.

If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.


Thus, even apart from the problem that in NY at the moment there is not agreement upon the identity of  the “temporary president if the senate,”  the state constitution seems to clearly contemplate that the Lt-Governor is not simply selected by the Governor.  In addition to section 6 above, section 1  provides:

The executive power shall be vested in the governor, who shall hold office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term. The governor and lieutenant-governor shall be chosen at the general election held in the year nineteen hundred thirty-eight, and each fourth year thereafter. They shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices, and the legislature by law shall provide for making such choice in such manner. The respective persons having the highest number of votes cast jointly for them for governor and lieutenant-governor respectively shall be elected.

However, Paterson is relying on the opinions of advocacy groups and NY “legal experts” that he has the power to appoint a Lt-Governor  under the Public Officers Law and that such an action is “not precluded” by the state constitution.  The brief statement is available here on the “Capitol Confidential” blog of the Albany Times-Union which also has a video of Paterson’s brief speech, statements of legislators, and is a great source for continuing coverage

Certainly, there will be a constitutional challenge in the NY state courts.  One legislator is already calling for the court to assume its role as an “impartial, authoritative umpire” and not make use of the “political question” “dodge,” arguing that to refrain from deciding is actually a type of judicial activism:  

For a month, we have had a crippled Senate, gubernatorial succession in turmoil, and the finances and operations of local governments throughout the state endangered. Ironically, the purest form of judicial activism is when a court, on "political question" grounds, refuses to act at all.

Empire-state-building  


It may not be a "constitutional crisis" in the Empire State, but there is certainly much constitutional confusion.     


RR

 

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