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David Paterson’s Lt. Governor Appointment: Politically Astute, Even if Constitutionally Iffy

Ed Koch had an Op Ed in the New York Times wherein he opines that through a series of gaps and omissions in the New York State Constitution and in the NYS Public officers law–none of which confer upon the governor the right to appoint a Lt. Governor–by stringing these gaps together, somehow that power materializes. It’s sort of like Marcy’s Pixie Dust, only in reverse. Or sideways.

While the Constitution does not explicitly grant the governor the authority to appoint his lieutenant, Article XIII, Section 3, authorizes the Legislature to pass laws to address the filling of vacancies in state offices. Part of one of those laws, Article 3, Section 43, of the Public Officers Law, is clear: "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."

A different part of that law, Section 41, provides for filling a vacancy in the offices of comptroller or attorney general through a joint resolution of the Legislature. This makes sense. Holders of both positions need to act independently of the governor, so he should not appoint anyone to them. And another part, Section 42, deals with vacancies to be filled by special election – including United States Senate and House seats – but explicitly excludes the lieutenant governor.

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Those who say there is no precedent here like to cite the governorships of Thomas Dewey, Malcolm Wilson and Mario Cuomo (all men served, at times, without a lieutenant governor). But that ignores the full history. The state had two special elections for lieutenant governor in the 1800s, for example. Then, in 1943, when Governor Dewey’s first lieutenant governor, Thomas Wallace, died several months after inauguration, the attorney general at the time opposed a special election, contending that the Constitution precluded anyone from filling the office.

The courts, however, rejected this argument, citing the Public Officers Law, and the special election took place. That decision supports Mr. Paterson’s position that nothing in the Constitution bars operation of the Public Officers Law.

After that decision, the Legislature amended Section 42 of the Public Officers Law – the part dealing with special elections – specifically to exclude the lieutenant governor. Since there can be no special election, appointment is the available method to fill the post. The fact that previous governors never used that power to appoint a deputy does not invalidate the practice.

It’s a really creative and innovative legal argument, and I enjoyed reading it. It is based on a much less well developed version put out by the Citizens Union and Common Cause and endorsed by Assemblyman Michael Gianaris. You can read their version here.

It has become accepted conventional wisdom in New York that a vacancy in the office of Lieutenant Governor remains unfilled until the following statewide election, yet the plain language of the Constitution and the Public Officers Law indicate that you have the power to appoint a Lieutenant Governor who can serve until next year’s elections.

The Constitution states that "[t]he legislature shall provide for filling vacancies in office," N.Y. Const., Art. XIII, §3. Although the legislature has not adopted a law specifically addressing a vacancy in the office of Lieutenant Governor, Section 43 of the Public Officers Law, entitled "[f]illing other vacancies," covers that office. Section 43 states:

"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…" N.Y. Public Officers Law, §43.

The office of Lieutenant Governor is an elective office, and a vacancy has occurred otherwise than by expiration of term, so under Section 43, the Governor has the power to fill the vacancy. Nothing in section 43 indicates that it does not apply to the office of Lieutenant Governor. This is in sharp contrast to Section 42 of the Public Officers Law which provides for special elections in certain circumstances and expressly excludes the "offices of governor or lieutenant governor." N.Y. Public Officers Law § 42(1). There is no comparable exclusion of the office of Lieutenant Governor from Section 43. The plain and unambiguous language of this section must be read to authorize the filling of a Lieutenant Governor vacancy by gubernatorial appointment.

Back when the Lt. Governor vacancy was new, CitiBar (The Association of the Bar of the City of New York) wrote a position letter suggesting amending the NYS Constitution to deal with vacancies in the statewide state offices other than Governor (Lt. Governor, Comptroller and Attorney General). If you read the section of the letter dealing with Lt. Governor it is quite clear that it is premised upon the fact that no section of the Constitution or any statute expressly gives the Governor the right to appoint a successor.

When there is a vacancy in the offices of Governor. Lt. Governor, Attorney General, or Comptroller, there is no special election to fill the vacancy. Attorney General and Comptroller vacancies are filled either by gubernatorial appointment or by the Legislature. The sitting Lt. Governor, who was the gubernatorial candidate’s running mate and elected together with the Governor, fills a gubernatorial vacancy. No special election for a new Governor would be held in this circumstance. Thus, a new Attorney General, Comptroller or Governor may serve for several months or as much as full four year term without the voter’s direct choice in the matter.

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Additional problems occur as a result of the temporary president of the Senate fulfilling the duties of the Lt. Governor during the vacancy. First of all, the temporary president may or may not be of the same political party as the new Governor. As such, when the temporary president assumes the duties of the Lt. Governor, the reciprocal philosophical loyalties enjoyed by the Governor/Lt. Governor running mates may not exist in this circumstance. Second, the temporary president obviously casts a vote as a sitting senator. If she then has to break a tie, it is problematic as to whether the temporary president can do so by casting a "second" vote. Third, if the extraordinary event occurs that there is a vacancy in the new Governor’s office, the temporary president becomes Acting Governor. This raises the issue of a person from a different party ascending to the governorship. But more importantly, the law is unclear as to whether the temporary president must resign her State Senate seat to become Acting Governor until a special election is held. If not, then we are faced with obvious separation of power issues.

In fact, it was our recommendation that the Constitution be amended to expressly give that very power to the Governor.

The Election Law Committee discussed various alternatives and determined that the most practical and fair solution would be to adopt the model relied upon by the federal government with respect to vacancies in the office of President and Vice-President of the United States.

This change would permit a new Governor who has succeeded to the post from the Lt. Governorship to select a new Lt. Governor whose nomination would be confirmed by the legislature. There are several advantages to following this model. It has been used successfully in the early 1970s to great benefit, resulting in stability and continuity on government. Moreover, in that the public is familiar with the federal model, importing it to New York would undoubtedly be readily accepted.

It will be interesting to see if the NYS Court of Appeals takes the strict constructionist approach and says that the Governor’s powers are limited to those expressly granted to him, or if they take Mayor Koch’s more creative approach, which I admit has a lot of appeal for me, if only for its fun twists and turns. It’s like the Chutes and Ladders legal arguments.

Understand that the CitiBar letter and the Koch OpEd are not necessarily at odds with each other. The CitiBar letter is written more to the standard of an OLC opinion, what we are absolutely certain of is the state of the law because we can point to language in a statute or case that confers the powers we are discussing. It is always going to be a narrow standard.

The Koch OpEd is written more to the standard of an advocacy brief, and argument you would make on behalf of one side, urging that the law be interpreted to extend to the result you desire. Lawyers do that every day and sometimes courts agree and extend existing law to cover a new factual situation.

Folks who dislike this process call it "judge made law", folks who believe that interpretation of the law is one of the reasons we have judges (in addition to their "umpire" function) believe it is what makes law a living evolving thing able to adapt and remain relevant in a changing world.

So, the Court of Appeals could go either way in deciding whether Paterson had the power to appoint Ravitch.

I must say, as a matter of personal opinion, that whether or not the appointment was constitutionally permissible, it looks like it was pretty good politics. It broke the logjam in the NYS Senate. Within a day of the announcement of the appointment, the stalled negotiations suddenly began to produce fruit. Rotten fruit, in that Espada and Monserrate have been rewarded for acting like stagecoach robbers, but at least some bills finally got passed which was not happening until Paterson threw a stick of Ravitch dynamite into the Senate logjam.

And whether or not the Court of Appeals ratifies what Governor Paterson has done with the Lt. Governor appointment, those bills are now law. So, I think it was good idea politically, whether or not it turns out to be sustainable legally. Does that make sense to anyone but me?

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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