ALBANY - Governor David A. Paterson has the constitutional power to fill a vacancy in the office of lieutenant governor, the state Court of Appeals ruled 4-3 yesterday, marking a stunning turnaround from the rulings of two lower courts.
"While there can be no quarrel with the proposition that, generally, election must be the preferred means of filling vacancies in the elective office, it does not follow that the elective principle is preeminent when it comes to filling a vacancy in the office of Lieutenant-Governor," Chief Judge Jonathan Lippman wrote for the majority in Skelos v. Paterson, 183.
Yesterday's Court of Appeals decisions begin on page 39 of the print edition of today's Law Journal.
By contrast, Judge Eugene F. Pigott Jr. wrote for the dissenters that the ruling opened the possibility that "citizens of this State will one day find themselves governed by a person who has never been subjected to scrutiny by the electorate" should an appointed lieutenant governor succeed to the governor's post.
"Because this is contrary to the text of the New York Constitution and affords Governors unprecedented power to appoint a successor, we respectfully dissent," he wrote.
Judges Carmen Beauchamp Ciparick, Susan Phillips Read and Theodore T. Jones Jr. joined in the majority decision.
Judges Robert S. Smith and Victoria A. Graffeo signed on to Judge Pigott's dissenting opinion.
"The Court has given new power and authority to an unelected governor where no such power existed under the state Constitution," Senate Minority Leader Dean Skelos, R-Rockville Centre, who had challenged the appointment, said in a statement.
However, the majority agreed with the governor's position that the law gave him the power to name Richard Ravitch, the former Metropolitan Transportation Authority chairman, to fill the position that became vacant on March 17, 2008, when Mr. Paterson became governor with the resignation of Eliot Spitzer.
Mr. Paterson in a statement called the ruling a "victory for all New Yorkers," in that it permitted the state to seek the assistance once again of a man who has never "hesitat[ed] to abandon the comforts of private life for the trenches of public service."
The governor vowed to rely on Mr. Ravitch's experience as a shrewd financial manager, to help him develop a "long-term fiscal recovery plan and to provide recommendations on structural reform of our State's finances."
Yesterday's decision reversed a ruling by the Appellate Division, Second Department, which upheld a Nassau County Supreme Court injunction that barred Mr. Ravitch from serving in the position (NYLJ, Aug. 21).
Mr. Paterson appointed Mr. Ravitch on July 8, at a time when Republicans and Democrats in the Senate were split 31-31 and could not agree on who should conduct the day-to-day affairs of the chamber. The lieutenant governor presides over the Senate and casts a tie-breaking vote on certain procedural matters.
Shortly after the appointment, the leadership gridlock was resolved, but Mr. Paterson continued to say that he wanted to designate a lieutenant governor to erase doubts about the line of succession to the governorship should he become incapacitated.
'Complementary' Provisions
Judge Lippman acknowledged that existing rules of succession were not perfect and created "the possibility that an unelected individual will, for a time, occupy the State's highest office."
But, he added, the Court was not faced with the "abstract question" of deciding which method — election, gubernatorial appointment subject to legislative confirmation or gubernatorial appointment alone — is the best way to fill a vacancy.
Rather, Judge Lippman wrote, as the law stands now, the post is filled by "gubernatorial appointment alone — a determination that the Legislature is always free to revisit."
The majority accepted the reading of Public Officers Law §43 advanced by Mr. Paterson's attorney, Kathleen Sullivan, a partner in Quinn Emanuel Urquhart Oliver & Hedges. That section provides that where "no provision of law" exists to fill an elective vacancy that has occurred by a reason other than an expiring term, "the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.
The majority said that the only other provision of law bearing on how a vacancy in the office of lieutenant governor alone should be filled is Article IV, §6 of the Constitution, which authorizes the temporary president of the Senate to "perform all the duties" of lieutenant governor during a vacancy.
The current Senator in that position is Malcolm A. Smith, D-Queens.
"An appointment under Public Officers Law §43, in contrast to the devolution mandated by article IV, §6 effectively fills the office . . . the article IV, devolution, although plainly necessary and useful to assure continuity in service in the short term, can at best provide only stop gap coverage of the function of Lieutenant-Governor," Judge Lippman wrote.
"Properly understood then, the two provisions…are complementary rather than duplicative," the majority said, adding that Article IV, §6 "does not, and cannot…be understood to state that the vacancy may not be filled."
'Unprecedented Power'
In dissent, Judge Pigott characterized the majority's position as granting Mr. Paterson "unprecedented power to appoint a successor" who in turn could appoint their own unelected heir.
But Justice Pigott argued that Article IV, §6, "logically placed the duties of Lieutenant-Governor in the hands of a duly elected state senator —one who is elected president of that body by the entire Senate, representing all citizens of this State."
Section §43 "by its terms only permits the Governor to appoint someone to an office to 'execute the duties' of that office until the office can be filled by an election for the remainder of the term," Judge Pigott wrote.
And, he continued, under Article IV, the temporary president of the Senate assumes the duties of lieutenant governor with no durational restrictions, leading to the conclusion that the drafters of the Constitution intended a lieutenant governor vacancy to remain open "until the next gubernatorial election, with the temporary president of the Senate performing the duties of Lieutenant-Governor in the interim."
Judge Pigott also noted that in the state's more than 200-year history, the lieutenant governor post has been vacant at least 10 times, "but no Governor has ever seen fit to assert that he had the power to appoint a Lieutenant-Governor to fill the vacancy."
The dissenters acknowledged "the good faith and good intentions of all parties in this difficult and important case." They agreed that the leadership crisis in the Senate and the resulting uncertainty about the temporary president's identity had "clouded" the line of gubernatorial succession and "thwarted day-to-day business in the Senate.
But the dissenters concluded, "neither the Governor nor this Court can amend the Constitution . . . We should adhere to the Constitution we have, which simply does not authorize what the majority now sanctions."
'Simplest Explanation'
In an interview, Ms. Sullivan, the governor's lawyer, said that while different "inferences" could be drawn from history, the majority's ruling was statutorily correct.
"The simplest explanation is the statute covers it, and the Constitution does not negate the statute," Ms. Sullivan said, referring to Public Officers Law §43. She called the decision a "tremendous win for the governor" which endowed Mr. Ravitch with the "full powers of the office."
Mr. Skelos' attorney, David Lewis of Lewis & Fiore in Manhattan, said in an interview he was disappointed with the decision, calling the 4-3 outcome "not a ringing endorsement of the governor's theory."
In a conference call with reporters, Mr. Ravitch said he was relieved by the ruling. "I always thought that the legal theory of the governor's lawyers was probably the wise one."
"I care a lot about the state, I've always been an easy target for a call to public service," he said, saying he looked forward to a "tough" 15 months ahead.
Mr. Ravitch, who is not taking a salary, has pledged that he will not run for election in 2010.
He said he had spent the last few months in the lieutenant governor's office catching up on a "steep learning curve" to help get the state's economy back on track.
Mr. Ravitch vowed to perform the duties of his office, including presiding in the Senate, but said he hoped a spirit of bipartisanship would prevail, as it did during the financial crisis of the 1970s.
"It is my hope that I can play a role to try and reproduce that atmosphere," he said.
