Automatic lieutenant gubernatorial succession: preventing legislative gridlock without sacrificing the elective principle.

• Author: Woods, Patrick A.
• Position: New York

1. INTRODUCTION

   In June of 2009 the government of the State of New York came to a shuddering halt. (1) Two candidates for Temporary President of the Senate, the office that represents party control, commanded equal votes for the position. (2) The tie-breaking vote would ordinarily have been cast by the lieutenant-governor, but due to the resignation of Eliot Spitzer and elevation of David Paterson, that position was vacant. (3) The uncertainty as to who held the position paralyzed Senate operations and left open a very real question as to who would succeed to the governorship should something happen to then-Governor Paterson. (4) The delay caused by the impasse cost state and local governments $2.9 billion. (5) The deadlock prompted Paterson to appoint Richard Ravitch to lieutenant-governor, marking the first time in New York history that any governor had attempted to fill that post despite numerous historical vacancies. (6) Litigation as to the propriety of the appointment immediately ensued, eventually resulting in the New York Court of Appeals upholding the legitimacy of the appointment. (7) Had the situation not resolved itself politically on the day of the appointment, (8) the deadlock could have continued for more than an additional two months during the pendency of the appeal. (9)

   Although the crisis was in no small measure a result of the fact that "New York's [legislature] was, by far, the most dysfunctional legislature in the nation," (10) the impasse could have been solved in a day had there been an effective constitutional mechanism for succession to the office of lieutenant-governor in the case of a vacancy. The absence of such a mechanism led to unprecedented gubernatorial action and the New York Court of Appeals's authorization, by a slim majority and in a decision that has been heavily criticized, (11) of Ravitch's appointment via a statutory catchall provision typically used only for minor officials. (12) That decision also left in place many of the structural problems that allowed the crisis to come to a head in the first place, such as when a replacement lieutenant-governor must be appointed.

   This article is an attempt to find a solution to the problem of lieutenant gubernatorial succession in New York. Part II will discuss the problems created by allowing appointment pursuant to Public Officers Law section 43 and the structural issues that remain unresolved even with the present judicially approved method of appointment. Part III will consider several alternative methods of gubernatorial succession and to filling a vacancy in the office of lieutenant-governor. It will discuss whether any of those approaches would suffice to meet the policy goals of the lieutenant-governor's office in New York's constitutional structure. Part IV will offer a potential solution, which avoids the risk of legislative gridlock and preserves some electoral input into which candidates may be chosen to succeed to the office of lieutenant-governor.

2. THE UNACCEPTABLE SKELOS SOLUTION

   The Court of Appeals's decision in Skelos v. Paterson removes any electoral check from those selected to fill the position of lieutenant-governor and leaves several structural problems unresolved. Chief Judge Lippman's opinion recognized that the Skelos solution is not necessarily the best solution to the issue of succession, and held only that the present constitutional and statutory scheme permits the governor to appoint a lieutenant-governor in case of a vacancy. (13) Three major flaws with the present structure are discussed below.

   1. Appointment Without Limitations Violates the Elective Principle

      The present structure permits the possibility that an entirely unelected person could succeed to the office of governor without ever facing any elective check or second-hand elective scrutiny. Appointment through the mechanism of Public Officers Law section 43 does not permit any check, either by ratification or special election, on the authority of the governor to choose whomever he or she likes for the position. (14) Moreover, because Article VI of the New York State Constitution provides that "[n]o election of a lieutenant-governor shall be had in any event except at the time of electing a governor," (15) it seems as though this appointee would be eligible to serve the remaining balance of the previous, elected lieutenant-governor's term, however long that may be. Accordingly, the office of lieutenant-governor could be occupied by an individual beyond scrutiny by anyone other than the governor himself for nearly a full four-year term.

      Occupation of the office of lieutenant-governor by an unelected person runs contrary to the office as viewed through the lens of the other relevant constitutional provisions. The principle that the lieutenant-governor be elected has been with us since New York's first constitution in 1777 and remained unchanged since. (16) In the two vacancy instances directly addressed by the New York Constitution, the lieutenant-governor is succeeded by someone who has faced election. Where only the lieutenant-governor's office is vacant, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability." (17) Prior to the Skelos decision, this section had meant that the Temporary President was lieutenant-governor as far as mattered. No distinction between being a placeholder and permanent occupant of the office was necessary because no governor had ever attempted to appoint a replacement. (18) As Judge Pigott noted in his dissent, this practice ensures that the elective principle is assured by "plac[ing] 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." (19) The other instance constitutionally addressed is when both the governor's and lieutenant-governor's offices are vacant, requiring a special election at the next general election if one is not too close in time to be practicable. (20) The appointment, potentially for the majority of a gubernatorial term, of someone never subjected to elective scrutiny runs contrary to this clear principle.

      More worrying than the potential occupation of the lieutenant-governor's office by an unelected person is the possibility, created by the Skelos decision, that an unelected person could occupy the office of governor itself. (21) As observed by Attorney General Nathaniel Goldstein more than sixty years ago, the application of Public Officers Law section 43 to the office of lieutenant-governor "lead[s] to the anomalous result that a Governor by appointing a Lieutenant-Governor and then resigning could impose upon the people his own choice as their Governor." (22) This section was, as observed by Judge Pigott, written to decry the use of Public Officers Law section 43 to fill Lieutenant Gubernatorial vacancies, rather than endorse it. (23) The Attorney General's opinion made its reason clear as well; it argued that "[t]his special treatment not only maintains uninterrupted functioning of government but seeks to make certain that the State's Chief Executive be chosen only after opportunity for the full and free expression of the people's will." (24) The people's will would obviously be thwarted in the "anomalous" situation identified above. Moreover, the governor need not make a calculated appointment and then resign to effect the possibility of an unelected governor, the office need only become vacant by whatever means. Had, for example, Governor Paterson died on September 23, 2009 (the day after the Skelos decision was issued), then Richard Ravitch would have succeed to the office of governor under our constitutional scheme without ever having been subject to elective scrutiny. He could then, entirely permissibly, have appointed an additional lieutenant-governor, creating an entirely unelected executive branch of the New York State Government. (25)

      It is difficult to imagine a situation more disconcerting than the second one outlined above. The Skelos majority's nonchalance when faced with this possibility is puzzling. (26) Any system admitting the possibility of an unelected chief executive of a state after only two vacancies is a cause for serious concern. (27) A functional system that does not pose such grave risks to the elective principle can certainly be devised.

   2. The Possibility for Gridlock Still Exists

      Because the appointment mechanism now in place does not require the governor to appoint a successor within any particular time frame, the possibility for legislative gridlock still remains. It was not until a crisis of arguably constitutional proportions arose as to who occupied the office of Temporary President that any governor in the history of New York attempted to fill a vacancy in the office of lieutenant-governor. (28) Moreover, Paterson did not attempt to do so until more than a year after he was elevated to governor and probably would not have done so but for the crisis itself. (29) Legislative leaders, when alerted to the ambiguity of constitutional provisions relating to lieutenant gubernatorial succession, have not considered appointment of a successor or clarification of the method of filling the position to be particularly important. (30) Additionally, given the seeming unimportance of appointing a replacement lieutenant-governor and the potential political ramifications of doing so, it is entirely possible that future governors when faced with a vacancy may delay appointment until after a crisis has begun and the need to have a replacement lieutenant governor in place has already arisen. In fact, the argument that prior vacancies "were [potentially] left unfilled [as] the result of political considerations" was among the reasons the Skelos majority rejected the argument that lieutenant gubernatorial vacancies must remain unfilled for the duration of the...