Wednesday, July 15, 2009

Civic Forum:

NYCivic will be hosting a Civic Forum, "The Future of the MTA," on WEDNESDAY, July 15, at 6:30 pm. The talk will be held at the Museum of the City of New York, at 1220 Fifth Avenue, between 103rd and 104th Streets.

Panelists include Councilperson Gail Brewer, Assemblyman Richard Brodsky, Transportation Alternatives Executive Director Paul White, and Manhattan Institute Senior Fellow Nicole Gelinas. NYCivic's Henry J. Stern will be moderating the event.

Please RSVP by calling 212-534-1672 ext. 3395, or write to

Paterson Appoints Ravitch,
But Has He the Authority?
Appeals Court Will Decide,
Hopefully, Reasonably Soon

By Henry J. Stern
July 9, 2009

The internet is a remarkable invention which has made it possible to communicate with large numbers of people in a very short time. It remains a challenge, however, for even this marvelous device to keep up with the twists and turns of the Albany players whose standoff is in its second month.

The New York State Senate is an historic institution, now in its 232nd year. It first convened in September 1777 in Kingston, NY, ninety-six miles up the Hudson. During the Revolutionary War (until 1781), the Senate met in various locations in order to keep its members from being captured by British troops, and possibly tried for treason. After Cornwallis surrendered, the Senate met in New York City, Poughkeepsie and Fishkill before settling in Albany.

If the Senators of those early days, who risked their lives by serving as legislators, could rise from their graves and watch their successors today, what would they think about the outcome of their heroic efforts? We cannot speak on behalf of the spirits of the long departed, but we can conjure their distress.

The ludicrous parliamentary dispute that has resulted in an impasse now 32 days old has already cost the State and City of New York tens of millions of dollars in revenues. Of course, that is a small fraction of the billions wasted in marginal or unjustified expenditures that the legislators approve annually in obeisance to their campaign contributors and other lobbyists. The leadership controversy has only attracted public attention because the Senate is now so non-functional it is unable even to squander resources, it can only choke off revenues by inaction.

It may be that by the time you read this, the immediate dispute has been resolved. That would be desirable, but look back at the damage and the cost of the elected officials’ strike against the people of the State of New York. There have been many labor strikes in our turbulent history, but this is the first time in memory that part of the government went on strike in an internecine dispute based on partisan greed.

Governor Paterson moved yesterday to appoint Richard Ravitch as Lieutenant Governor, an act unprecedented in the history of New York State. Nine previous LGs have become Governor as a result of the death, impeachment or resignation of their predecessors. None attempted to appoint a successor. There is no language in the State Constitution authorizing or forbidding the practice.

This became a Federal issue after Lyndon Johnson succeeded John F. Kennedy on that tragic day, November 22, 1963. There was no Vice President, and no procedure for filling the vacancy. Congress proposed the XXVth Amendment to the Constitution in 1965 and it was ratified by the 38th state (three quarters of the 50) in 1967.

BTW, three states have never ratified the amendment, North Dakota, Georgia and South Carolina, but that is of no constitutional consequence. We hope it’s not TMI. (Those who wish one or both acronyms deciphered may ask by e-mail and will receive an immediate response. We’ll also give you BFF, free.)

Since it took a Constitutional amendment for the United States to provide a successor for the Vice President, it is natural to wonder whether Governor Paterson can make that choice unilaterally, in private, hours before a temporary restraining order is signed which would prevent him from doing so. It appears possible that this case may be decided on the same basis as the Bush v. Gore decision on December 12, 2000, reached just days before the Presidential electors were scheduled to meet. The decision seemed based on the result. Which preceded the reasoning. We agree with the media that Bush really carried Florida by a few hundred votes, but that conclusion was reached well after the 5-4 Supreme Court decision, which was arrived at on a roughly partisan basis. But would we have preferred the Minnesota procedure in Coleman v. Franken – no President for six months while the case is argued and appealed?

Richard Ravitch is a competent, public spirited member of the liberal Establishment. He is well regarded for his public service at the MTA and his mediating skills. If Governors Spitzer or Paterson had appointed a cabinet of people of similar ability, we and they would have been much better off.

Ravitch was a major housing developer (Waterside and Manhattan Plaza) who received substantial Federal assistance with his projects. Goo-goos sat around for many years saying, “If only someone like Richard Ravitch would run for mayor.” When he finally did, in 1989, very few of them supported him. That was because the Democratic primary became a two-man race between Mayor Koch and David Dinkins, with Ravitch (4.4%) and 16-year Comptroller Jay Goldin (2.7%) bringing up the rear.

With the wisdom of hindsight, Ravitch should have skipped the Democratic primary and run as an independent against Dinkins and Rudy Giuliani, the Republican. He would have lost anyway, because Dinkins v. Giuliani would become the main event, and his candidacy would have split the anti-Dinkins vote.. Ravitch could also have spent more of his own money. Imagine how poorly Bloomberg would have done in 2001 if he had not spent the millions he did.

Ravitch was a better civic leader and builder than politician. He would make a very fine Secretary to the Governor, which in New York State is chief of staff. He could also be appointed Deputy Governor, which is not a Constitutional office. It exists as an appointive office in a number of states, including Illinois.

We are pleased that Richard Ravitch has returned to public service. Whether his appointment will stand up in court is another matter entirely. It depends on how activist the seven judges of the Court of Appeals decide to be. Since four of them were appointed by Governor Pataki, they are likely to be inclined to follow existing law and precedent rather than adopt novel theories or ream legislative loopholes.

There is a principle I recall from my distant days at law school, inclusio uno, exclusio alteris. It means that if a rule is spelled out in detail as applying to a particular situation, there can be a sort of presumption that it does not apply in other unnamed situations, even if the cases are similar. One might also conclude that since no previous governor ever appointed anyone to fill the LG vacancy, they must have believed that they lacked the power to do so. Of course, they could have been mistaken, or simply ignorant. Credit should go to Citizens Union, Common Cause and Queens Assemblyman Mike Gennaris for alerting the governor’s staff to this possibility.

One never knows, however, what judges will decide or how long it will take for them to do it, so we do not predict the outcome of the legal battle. We hope that its resolution is swift. The ultimate outcome might be that the jurists, not having received a raise for eleven years from the stingy legislators, decide as Judge McNamara did some weeks ago, that this is not a matter for judicial resolution, and that the legislators should decide the matter themselves. That is highly unlikely to happen, but it would provide the ironic justice of giving the senators what they deserve.

We stop here, because this delicious subject (to us, anyway) should be served in relatively modest bites. We also want to reach you readers before we are overtaken by events. There will be more to report as soon as a decision is reached in Albany.

Remember that none of the above directly relate to the financial problems the state faces, which are worsening daily with falling revenues and static taxes.

But how can anyone consider such matters when serious issues like lulus and patronage jobs are on the table?

#571 07.08.2009 1,298 wds

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