Thursday, September 24, 2009

Judicial Cavalry Saves Ravitch

Can Governor Appoint
His Own Lieutenant?
Court Says: Yes He Can

By Henry J. Stern
September 23, 2009

We would like to report further on the unexpected decision by the Court of Appeals Tuesday in the case of Skelos v. Paterson, where the Republican Senate leader sued to prevent the Governor from unilaterally appointing Richard Ravitch, a private citizen with a background of public service, as Lieutenant Governor of the State of New York The position had been vacant since March 2008, when David Paterson became Governor after the unexpected departure of Eliot Spitzer.

The office of Lieutenant Governor had never, in the 221 (or 232) years of New York State, been filled by direct gubernatorial appointment. As of 2009, it has been. If the Legislature desires to change the process, the Court of Appeals said it could do so.

We outlined the case yesterday, but there is more to it, including quotations from the two opinions, which we would like to bring to your attention. This is a case of unique significance, in which the judiciary decides an issue disputed between the governor and a legislative leader. You can link to the opinions here.

On the basis of the 13-page majority opinion by Lippman, C.J. with Ciparick, Jones & Read, JJ, concurring; and the 24-page dissenting opinion by Pigott, JJ, concurred in by Graffeo and Smith, JJ, we conclude that the case could have been decided either way. The dissent has historic precedents on its side, mostly about what didn't happen, but there has been no decision that the governor lacks the power to make such an appointment.

With regard to the merits, there is absolutely no point, and considerable danger, in leaving the second-highest position in state government vacant for up to four years, simply because the Constitution is silent on how to fill the office, although the law specifies the procedure for selecting a new Comptroller or Attorney General. The thought of Pedro Espada or someone like him becoming Governor of the State of New York frightens us; it may have weighed on the judges’ minds as they balanced the equities.

One reason we have a Court of Appeals is to make decisions a lower court cannot make, since they are bound more heavily by prior decisions. There is an analogy here to the Supreme Court of the United States, which over the years has made rulings in cases such as Brown v. Board of Education (1954).

The essence of the majority opinion is stated by Chief Judge Lippman, when he writes:

“Before us, however, is not the abstract question of whether it would be better in the case of a vacancy in the office of the Lieutenant-Governor to fill the vacancy by election or by gubernatorial appointment subject to legislative confirmation or by gubernatorial appointment alone. For now, the Legislature, pursuant to an express grant of constitutional authority, has specified that the vacancy is to be filled not by election but by gubernatorial appointment alone – a determination that the Legislature is always free to revisit.”

It is the last sentence of that paragraph that the minority strenuously disputes. When the Court voted, however, the majority agreed with the interpretation of the statutory language advanced by the Governor, who under the separation of powers, appoints the judges of the Court of Appeals from a list of seven names compiled by the New York Commission on Judicial Nominations. The real choice, however, may be narrower than seven if the Governor takes into account ethnic, gender and political backgrounds, as an elected official is wont to do.

It is generally acknowledged that Paterson did not appoint Ravitch as a personal power trip, or in an effort to expand his authority or to choose his successor. The Governor acted only after the State Senate had been deadlocked for a month. No business was transacted during that time, because neither party could muster a majority. The state was losing millions of dollars each day in taxes that had been agreed to but could not be formally imposed except by law.

Language in Judge Pigott’s dissent recognizes “the good faith and good intentions of all parties.” It is worth repeating. This is the last paragraph of his opinion.

“Despite our disagreement, we join the majority in acknowledging the good faith and good intentions of all parties in this difficult and important case. At the time the Governor named a Lieutenant-Governor, two Senators credibly claimed the position of temporary president of the Senate. The resulting uncertainty over the temporary president’s identity created two practical problems. First, it clouded the line of gubernatorial succession; and second, the absence of an acknowledged presiding officer thwarted day-to-day business in the Senate. While the amici’s dire characterizations of this political deadlock may be overstated, it is easy to understand why the Governor felt impelled to act and has vigorously defended his position. But neither the Governor, nor this Court, can amend the Constitution. Our Constitution’s provisions governing gubernatorial succession have been scrutinized repeatedly over the past few decades, and have consistently been adjudged adequate. We should adhere to the Constitution we have, which simply does not authorize what the majority now sanctions."

We'll be back tomorrow, with our take on Obama's strike on Paterson, which may or may not have been justified or appropriate.

StarQuest #599 09.23.2009 891wds

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