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Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor

Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor
Skelos v Paterson, 2009 NY Slip Op 06585, Decided on September 22, 2009, Court of Appeals

The issue before the Court of Appeals: Does the Governor of the State of New York have the authority to fill a vacancy in the office of Lieutenant-Governor by appointment. The Court, in a 4 to 3 decision, held that he did.

By way of background, in November 2006, Eliot Spitzer and David Paterson were elected, respectively, to the offices of Governor and Lieutenant-Governor. Then Governor Spitzer resigned and then Lieutenant-Governor Paterson became Governor. Some fifteen months later, the Senate found itself split: Republicans and Democrats 31-31.

As Democrats and Republicans recognized a different Temporary Presidents of the Senate, a political deadlock barred its conducting day-to-day business in the Senate chamber. To resolve this impasse, Governor Paterson, relying on Section 43 of the Public Officer Law, appointed Richard Ravitch to the office of Lieutenant-Governor. Mr. Ravitch would thereby preside over the Senate and casts a tie-breaking vote with respect to certain procedural matters.

The Court?s majority held that ?Public Officers Law §43 affords the Governor the authority to fill a vacancy in the office of Lieutenant-Governor by appointment,? explaining:

Our State Constitution specifies that "[t]he legislature shall provide for filling vacancies in office" (NY Const, art XIII, § 3, and expressly contemplates that vacancies in elective office may be filled by appointment. In pursuance of the constitutional mandate imposed by Article XIII, §3, the Legislature has enacted three comprehensive and complementary provisions, i.e., Public Officers Law §§41, 42 and 43. The first of these, titled "Vacancies filled by legislature," prescribes the means by which vacancies in the offices of State Attorney General and Comptroller are to be filled. The second, titled "Filling vacancies in elective offices" generally requires that such vacancies occurring before September 20th of any year in office be filled by means of election at the next general election, but, in the case of a vacancy in the office of United States Senator, requires, in certain circumstances, a temporary appointment by the governor "to fill such vacancy" (see Public Officers Law §42 [4-a]).

Notably, this section specifically excepts from its scope the elective offices of Governor and Lieutenant-Governor. The last of these vacancy-filling provisions, Section 43, the one upon which the Governor relied in his appointment of Mr. Ravitch, titled "Filling other vacancies", is plainly intended as a catch-all to complete the Legislature's satisfaction of the mandate of article XIII, §3. Unlike its neighboring provision, Section 42, Section 43 does not specifically exclude any office from its application, but rather provides: "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."

Judge Pigott, writing for the minority, said ?Under the majority's rationale, the possibility exists that the citizens of this State will one day find themselves governed by a person who has never been subjected to scrutiny by the electorate, and who could in turn appoint his or her own unelected Lieutenant-Governor. Because this is contrary to the text of the New York Constitution and affords Governors unprecedented power to appoint a successor, we respectfully dissent. "

As to the merits, the dissent notes that ?both sides concede that the Constitution does not expressly accord the Governor the power to appoint a Lieutenant-Governor. Nor can the Constitution itself be read in such a way as to permit the Governor to make an appointment to that office. The Constitution does, however, provide a clear line of succession to the office of Governor, the very purpose of Article IV.

Article IV, § 6 provides that in the event of a vacancy in the offices of both Governor and Lieutenant-Governor (a simultaneous vacancy): "the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected." If this situation arises, Article IV, § 6 mandates that a prompt election be held by requiring that "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 become vacant." Most definitely, the framers of the Constitution were intent on having the electorate promptly fill both vacancies.

Next, that section addresses a vacancy in the office of Lieutenant-Governor only, while there is a sitting Governor:

"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."

Thus, the drafters of the Constitution 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.

The majority errs in deciding that this constitutional mandate merely provides for a "caretaker" role by the temporary president for a limited interim period until the Lieutenant-Governor's office is filled by the Governor under the Public Officers Law. The majority also errs in reading Public Officers Law, which contains specific provisions for filling vacancies in the offices of Comptroller, Attorney General, and United States Senator, to let the Lieutenant-Governor's office fall into a "catch-all" with all other elected officials in the State no matter how minor. A review of the Public Officers Law §§41-43 makes the majority's misreading of them clear. Together, they provide a comprehensive mechanism for dealing with vacancies in nearly every office in the State - but not that of Governor or Lieutenant-Governor, who are separately treated in Article IV, §6.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06585.htm

Full post as published by New York Public Personnel Law on September 22, 2009 (boomark / email).