Thursday, August 20, 2009

New York: Lt-Governor Appointment Unconstitutional

A New York appellate court has just ruled that Governor Paterson's appointment of Richard Ravitch as Lieutenant-Governor is unconstitutional.   (For background on New York's state constitutional turmoil, see our previous discussion here).  

In Skelos v. Paterson, available here, the Appellate Division, Second Department, succinctly stated the issue as "whether the Governor has the authority, acting entirely on his own, to select and appoint an otherwise qualified individual to fill a vacancy in the office of the Lieutenant-Governor."  The court concluded that "the Governor simply does not have the authority to appoint a lieutenant-governor, that his purported appointment of Mr. Ravitch cannot be reconciled with an unambiguous and contrary provision in the State Constitution, and that no considerations of the State's financial difficulties or of political strife in the Senate allow us to find authority for Mr. Ravitch's appointment where none exists."  (Opinion at 9).  This result is not surprising given the reports from the oral arguments, as in the New York Times yesterday here.

The court's state constitutional analysis was relatively brief:

Section 3 of article XIII of the State Constitution provides in pertinent part that "[t]he legislature shall provide for filling vacancies in office." Pursuant to that authority, the Legislature enacted Public Officers Law §§ 41, 42, and 43. Section 41 authorizes the Legislature to appoint a person "to fill" a vacancy in the office of Attorney General or Comptroller. Section 42 provides for the filling of vacancies in certain other offices, with a specific exception for the "offices of governor or lieutenant-governor" (Public Officers Law § 42[1]). The Governor here relies entirely on Public Officers Law § 43 which, as a catch-all provision, reads in pertinent part: "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." The plain language of this statute indicates that the vacancy in the elective office in question is to be "filled," not by a gubernatorial appointment, but "by an election," and that the Governor's appointee merely "execute[s] the duties [of the vacant office] . . . until the vacancy [is] . . . filled." Thus, Public Officers Law § 43 does not authorize the Governor to fill a vacancy, but only to appoint a person to execute the duties of the vacant office until the vacancy is filled by election. Public Officers Law § 43, therefore, provides no authority for the Governor's purported appointment of Mr. Ravitch to fill the office of lieutenant-governor. Moreover, the statute cannot be constitutionally applied even to support an appointment of Mr. Ravitch to execute the duties of the office of lieutenant-governor. 

Article IV, section 6, of the Constitution provides that, where a vacancy occurs in the office of lieutenant-governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy." Thus, under the Constitution, until the vacancy in the office of the lieutenant-governor is filled, the temporary president of the Senate is charged with the responsibility of "perform[ing] all the duties of lieutenant-governor" (NY Const, art IV, § 6). "Executing" the duties of the lieutenant-governor, as provided in the statute, cannot mean something different from "performing" the duties of the lieutenant-governor, as provided in the Constitution. It could not have been within the contemplation of the drafters of the Constitution and the statute that, upon a vacancy in the office of the lieutenant-governor, there would be two caretakers—one, the temporary president of the Senate, who would "perform" the duties of the office, the other, an appointee of the Governor, who would "execute" the duties of the office.

In our view, therefore, Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate. 

The court gave Governor Paterson (pictured below) leave to appeal, and certified the question to the New York Court of Appeals (NY's highest court). 


Thus, New York's state constitutional turmoil and political uncertainty enters a new phase.


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