Skelos v. Paterson: the surprisingly strong case for the governor's surprising power to appoint a lieutenant governor.

AuthorBriffault, Richard

On July 8, 2009, Governor David Paterson surprised New York's legal and political world by announcing his intention to appoint Richard Ravitch to fill the vacancy in the office of lieutenant governor. No New York governor had ever appointed a lieutenant governor before. Paterson's action was widely denounced as unauthorized and unconstitutional. Four months later, observers were even more astonished when the Court of Appeals in Skelos v. Paterson upheld the governor's action. This article explains why the governor and Court of Appeals were right to conclude that the governor had statutory and constitutional authority for his action. Indeed, the case for the governor's action is quite straightforward and surprisingly strong. That authority follows from the plain text of a statute, the leading judicial precedent, and the relevant provisions of the state constitution. By contrast, the case against the governor's action was quite weak, relying more on extra-textual and policy concerns than the law itself.

  1. INTRODUCTION

    On July 8, 2009, Governor David Paterson surprised New York's political and legal world by announcing his intention to appoint Richard Ravitch as lieutenant governor, thereby filling the vacancy in that office created on March 17, 2008, when Governor Eliot Spitzer resigned and Paterson, then lieutenant governor, became governor. As Court of Appeals Judge Eugene Pigott later put it, when Paterson became governor, "no one gave a thought or harbored a suggestion that he had the ability to appoint a Lieutenant Governor." (1) No provision of the state constitution expressly authorizes the governor to appoint a lieutenant governor. (2)

    Instead, the constitution provides that "the temporary president of the senate shall perform all the duties of lieutenant-governor" if there is a vacancy in that office. (3) There have been at least ten vacancies in the office of lieutenant governor, (4) and at no time before July 2009 did a governor ever attempt to appoint a lieutenant governor to fill the vacancy. (5) Indeed, at the time Governor Paterson acted, the office of lieutenant governor had been vacant for fifteen months and he had made no previous attempt to fill it. On the eve of Governor Paterson's action, Attorney General Andrew Cuomo announced that such an appointment was "not constitutional." (6) The constitutionality of Governor Paterson's move was subsequently denounced by a former chief judge, a former lieutenant governor, a former attorney general, and a leading academic expert on the state constitution. (7) When the inevitable court challenge resulted, a state supreme court justice and a unanimous four-judge appellate division panel in rapid succession held the governor's action unconstitutional. (8)

    Yet the Court of Appeals ultimately upheld the governor's appointment (9)--and the Court of Appeals was right. The governor's action was authorized by the plain meaning of a state statute, supported by judicial precedent, and consistent with both the text and structure of the state constitution. The legal grounds for challenging the governor's action were weak and inconsistent, ultimately relying more on the arguments that "it's never been done before" and extra-textual concerns about undue gubernatorial power than legal texts. Although no constitutional provision expressly authorized the governor's action, no constitutional or statutory provision barred it, either. A gubernatorial action authorized by statute and not precluded by the constitution or any other law is presumptively valid.

    The Ravitch litigation is a reminder that even when it comes to constitutional questions, widely held but untested assumptions and reliance on traditions and past practices (or the lack of them) is no substitute for close and careful reading of the relevant constitutional and statutory texts and case law. The fact that something has never been done before may only mean that it "present[s] an open legal question," (10) not that it is unauthorized or prohibited.

    The Ravitch litigation underscores the continuing importance of the longstanding view of a state constitution as a limitation, and not a grant of powers, so that the legislature has plenary authority to exercise a power as long as it is not limited by the New York State Constitution. (11) So, too, the Ravitch dispute reminds us just how problematic are some of our laws dealing with the filling of vacancies in statewide elective office. One benefit of this dispute could be closer attention to the vacancies issue. Certainly, the scandals that engulfed Governor Paterson in early 2010 only further underscored the value of having a lieutenant governor in place and the uncertainty about gubernatorial succession removed. Part II of this comment provides a brief chronology of the events leading to Governor Paterson's naming of Richard Ravitch as lieutenant governor, and of the litigation that followed. Part III analyzes the legal issues raised by the governor's action. Part IV concludes by considering the implications for state constitutional law and for the specific question of filling vacancies in state office.

  2. A TUMULTUOUS TERM: FROM THE ELECTION OF ELIOT SPITZER TO THE JUDICIAL VALIDATION OF THE APPOINTMENT OF RICHARD RAVITCH

    In November 2006, Eliot Spitzer, then the state attorney general, and David Paterson, then a state senator and senate minority leader, both Democrats, were together elected governor and lieutenant governor of the State of New York by an overwhelming 65.7% of the vote. (12) Less than fifteen months into his term, Governor Spitzer, engulfed by scandal, resigned, and on March 17, 2008, Lieutenant Governor Paterson, by virtue of article IV, section 5 of the state constitution, (13) became New York's 55th governor. (14) Thereafter, the position of lieutenant governor remained vacant until the summer of 2009. Article IV, section 6 provides that in the event of a vacancy in that office, the temporary president of the senate "shall perform all the duties of lieutenant-governor during such vacancy." (15) When Paterson became governor, the senate majority leader and temporary president of the senate was Joseph Bruno, a Republican. At that time, Senator Bruno became acting lieutenant governor. (16) On June 24, 2008, Senator Bruno, also buffeted by scandal, stepped down from his leadership post (he quit the senate altogether on July 18, 2008) (17) and Senator Dean Skelos, another Republican, became majority leader, temporary senate president, and acting lieutenant governor. (18) In the November 2008 elections, for the first time since 1965, the Democratic Party won a majority of senate seats (19) and on January 7, 2009, the Democratic leader, Malcolm Smith, became senate majority leader, temporary president of the senate, and, as a result, acting lieutenant governor. (20)

    Senator Smith's hold on power was a precarious one, however. His party held a slender 32-30 majority, (21) and even before the Democrats took control of the senate in January 2009, a group of four Democrats had temporarily withheld their support from the party leadership while they negotiated terms for their votes. (22) On June 8, 2009, the Democratic majority broke apart as two Democrats--Senators Pedro Espada and Hiram Monserrate--bolted their party and joined the thirty Republicans in an effort to remove Senator Smith as temporary president. (23) They adopted a resolution electing Senator Espada temporary president and Senator Skelos majority leader. (24) The rest of the Democratic Senators refused to accept the legitimacy of this action and went to state supreme court, Albany County, seeking a declaration that Smith was still temporary president. (25) That action was dismissed as an "improvident intrusion into the affairs of the senate" by the court on June 16. (26) In the meantime, Senator Monserrate had returned to the Democratic fold on June 15, leaving the senate evenly split between two groups of thirty-one, each claiming control, including the right to choose the senate's leadership and determine its agenda. (27) During this period, it was unclear who was temporary president of the senate and acting lieutenant governor--Senator Espada or Senator Smith--so that it was unclear who could preside over the senate or who would take over as governor should Governor Paterson become incapacitated. (28)

    That 31-31 division persisted for nearly a month, leaving the senate stalled and unable to do any business. (29) Mid-June 2009 was a particularly unfortunate time for such deadlock. A number of significant laws, including the one giving the mayor of New York City control over the city's schools, were set to expire on June 30. (30) Similarly, a number of laws authorizing state and local taxes were due to expire on June 30, and other laws authorizing new revenue measures were needed by June 30th if taxes--essential for the local revenue collections needed to balance local budgets--were to be in place at the start of the local government fiscal year on July 1. (31) The senate was unable to take action on any of these measures. (32) Governor Paterson repeatedly called the senate into extraordinary session to address these matters. The senate met in special session eighteen times, with the two contending groups meeting separately within the chamber, "gaveling in and minutes later gaveling out without conducting any meaningful legislative business." (33) As a result, tens of millions of dollars of state and local revenues were lost, and "the tax structures and budgets of towns and cities across the state were in shambles." (34) The senate's failure to approve tax measures required New York City to postpone the hiring of 250 police officers, 150 firefighters, 175 school safety agents, 150 crossing guards, and thirty-four emergency operators. (35) The state comptroller estimated that the total direct cost of the senate stalemate to the state and to local governments was $2.9...

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