Thursday, July 30, 2009

The Lt. Governor Issue: An Analysis of Some Documents

As is now well known, on July 8, 2009, Governor David Paterson appointed Richard Ravitch, who has long been an important figure on New York State's political stage, to the office of Lt. Governor. The Governor's legal right to make this move is not well established. Indeed, the conventional wisdom has for a very long time been that the Governor was specifically NOT allowed to do this. The Temporary President of the Senate is, according to the conventional view, “acting” Lt. Governor until the next gubernatorial inauguration, which follows the next scheduled gubernatorial election. Conventional, not “special” or otherwise out-of-cycle elections take place when there is a vacancy in the office of Lt. Governor alone, and no one is appointed to that position. (This is unlike at the federal level, wherein the President is allowed to appoint a Vice President in the event of a vacancy.)

The political reasons Governor Paterson made the appointment should be obvious. At the time there had been a power struggle for control of the State Senate, and hence it was unclear who the Temporary President of the Senate was. Also, Ravitch seems to have a reputation as a problem solver, a kind of governmental project manager, and Governor Paterson probably thought Ravitch would be useful in solving the various problems currently facing New York State.

And there are many.

The Governor's appointment is currently being litigated. In an effort to try and predict the outcome of the controversy, and to have some means of assessing the worth of the outcome when it happens (I do not, you see, entirely trust New York's courts), I've been looking into the issue somewhat.

There are better ways to spend my time, but I kind of didn't realize how long it would take to come to so few actual conclusions. I was kind of hoping I'd find something definitive more or less, some kind of "smoking gun," but I guess I should have known better. I was hoping to find some obscure academic paper that already dealt with the issue, or maybe some obscure statement at a Constitutional Convention (any of the several that we've had in New York State would do) that at least showed the issue had been dealt with, studied, or considered, before recent events. I found nothing anywhere close to that definitive.

From what I can tell, a Governor's lack of authority to make such a move was assumed, but the issue hadn't been considered, dealt with, deliberated over, and studied until now. If nothing else, the Governor's move may well settle the issue once and for all....Or until New York State's next Constitution, which hopefully won't contain such an obvious hole.

We can only hope that the lawyers and judges involved in this matter have gone over these materials as well.

Based upon my research, I have (surprise!) been unable to come to firm conclusions.

As near as I can tell, the settlement of the issue will come down in very large part to judicial orientation and philosophy. If the deciding judges (presumably it'll be eventually the Justices of the State Court of Appeals, New York's highest court) generally think that a public official can do that which is not specifically forbidden, then the Governor has a better chance. If the deciding judges generally think that a public official can do only that which is specifically allowed, then the Governor loses by a mile.

Governor Paterson and his lawyers, however, do seem to have the further distance to travel.

Anyway.....Let's look at some relevant documents. I am not breaking any new ground here, with one exception (kinda): The 1967 Constitutional Convention contained some useful stuff. I haven't seen anyone citing this yet but I might've just missed it I guess.

The Governor's Documents

At the time of the appointment, Governor Paterson's office issued two documents, posted to the official Governor's website as pdf files. One was referred to as the “legal background” of the issue. It was a single page. In brief, it stated that the Temporary President of the Senate's fulfilling the role of the Lt. Governor did not actually fulfill the vacancy in the Lt. Governor's spot, that the law and the Constitution still implied that vacancies needed to be filled, and that therefore the procedure outlined in Public Officers Law Section 43 (gubernatorial appointment) must apply. The Governor also issued a 2-page letter to the people of the State (it was addressed, “Dear Fellow New Yorker”) that articulated the same arguments, and went into Richard Ravitch's history and qualifications for the office of Lt. Governor.

The letter document mentioned conversations with lawyers and scholars, but no actual conversations were cited. The letter mostly cited the fiscal and economic crises, couching the need for an Lt. Governor more in the situation faced by the state than in any institutional need. This makes sense, as the voters are more likely to care if Ravitch helps to fix things than they will if an important precedent is set.

The State Constitution

New York State's current Constitution is known as “The Constitution of 1938.”

The most relevant part of the State Constitution seems to be Article 4, Section 6. (Another part of the Constitution also might be relevant, but we'll talk about it later.) As is well-known, the Temporary President of the Senate is to serve as acting Lt. Governor in the event of a vacancy in the office of Lt. Governor alone. If for some reason the Temporary President of the Senate can't fulfill the duties, or if there isn't a Temporary President, we next go down to the Speaker of the Assembly. (In other words, chaos wouldn't necessarily have reigned if Governor Paterson had died before the controversy in the Senate was settled. We just might have had Governor Sheldon Silver. Which may, when you think about it, be almost as bad as chaos, especially for Upstate.)

The Governor is not specifically allowed to appoint an Lt. Governor, and the separate election of a Lt. Governor is specifically excluded.

Though these provisions are officially from the Constitution of 1938, they seem to go pretty far back, to about the 1890s and they were either clarified or recodified or both around 1963.

The Public Officers Law

Section 43 of the Public Officers Law provides for the appointment by the Governor of elective officers until the next election. Section 43 neither specifically includes nor specifically excludes the Lt. Governor.

This is the section that the “good government” groups that support the Governor's move construct their case around. (Mostly, we're talking about Common Cause and Citizens' Action. Together with Assembly Member Michael Gianaris, they authored a letter, addressed to Governor Paterson and dated July 6, 2009, wherein they suggested that the Governor had the legal authority to appoint an Lt. Governor under these conditions. Given how soon afterwards the appointment was made, it's safe to say that Governor Paterson was persuaded.)

New York Jurisprudence

This is a legal encyclopedia. Lawyers use it as a reference guide. Several “articles” in the “encyclopedia” look they might be of use in sorting this issue out. However, appearances are deceiving, and there is little or nothing relevant here. There is actually a good reason for this. Like most encyclopedias, this one is dedicated to describing currently-known and currently-agreed-upon information, not on breaking new ground. It's not the purpose of encyclopedias to add to knowledge, but rather to compile it. Until June of 2009, when Senator Skelos' power grab and Senator Smith's incompetence put us here, the issue didn't even really so much as come up. So New York Jurisprudence doesn't really address the issue.

Want to bet future editions will?

Ward V. Curran

Ward v. Curran (CITE AS: 266 A.D. 524, 44 N.Y.S.2d 240) is a 1943 Court case involving Lt. Governor succession. If memory serves, this case inspired amendments to the State Constitution clarifying that the Lt. Governor should only be elected at the same time as the Governor. The case is used by the good government groups supporting Governor Paterson's actions (identified earlier) to bolster their case. However, that use is really weak. First of all, the Constitution has been changed since then. Secondly, the decision mostly seems based on a general principle that elective offices should be filled by elections. And we're not talking election here, we're talking appointment. An out-of-cycle election for this office is already forbidden by the State Constitution.

While the general legal prejudice that elective offices should be filled by elections probably still holds true, the State Constitution no longer allows out-of-cycle Lt. Governor elections. So elections are no longer the issue, and somehow I doubt the same principle would apply to gubernatorial appointment.

So......We quickly move on from Ward v. Curran.

Wisconsin v. Ekern

This is a State of Wisconsin case, from 1938 (CITE AS: 228 Wis. 645, 280 N.W. 393). Like Ward v. Curran, this case is used as a precedent by good government groups (identified above) who support the Governor's move. The use of a cross-state precedent is not unknown. While I don't have the impression States are typically bound by cross-state precedents, I have seen them used, in situations where laws are similar across States. This is part of how lawyers are trained and educated, it helps to maintain stability and consistency across jurisdictions.

Lo and behold, the “legal landscape” (I borrow the term from the Common Cause, Citizens' Action, Assembly Member Gianaris memorandum cited earlier) in the Wisconsin case does seem very similar to our current landscape here in New York State. And given that landscape, the Wisconsin courts (71 years ago) ruled that the (Wisconsin) Governor could indeed appoint a Lt. Governor (in Wisconsin).

What I have no way of knowing, however, is how many other States' courts, given similar “legal landscapes,” came to opposite conclusions. I bet there's been some.

So not only are the New York State courts not bound by the Wisconsin case (they'll take it as instructive, probably, but are not bound by it), but I'll wager the other side will find similar cases from other States that had the opposite result.

The Attorney General's Opinion

The title of this section is sarcastic. Because, you see, I could find no Attorney General's opinion on this issue. But you all ready about this in the press, didn't you? No, what you read were stories about an Attorney General's Press Release. It was issued on July 6, 2009, it's 3 paragraphs long, it contains no significant analysis. I'm not sure under what circumstances the Attorney General's office is authorized to issue formal or informal opinions, but for my part I would have at least expected an informal report of some kind, given the importance of this issue.

No. There is, instead, a 3-paragraph Press Release. The Press Release goes over ground that's well known. And the Courts may well come to agree. One would hope, however, that they will take more than 3 paragraphs to do it.

Skelos and Espada v. Paterson

As is now well known, Senators Dean Skelos and Pedro Espada filed court documents in Nassau County seeking to overturn the Governor's appointment. On July 9, 2009, the court down on Long Island issued.....I'm not sure it's really a “ruling” per se. An injunction? A restraining order? I'm not sure what to call it; one of the frustrating things about this matter is the way lawyers and courts keep trying to cram political things into legal categories. I don't even know how to cite this...opinion, or order, or ruling, or whatever it is.

But anyway....The courts down in Nassau County issued some kind of written material related to this case, and issued some kind of ruling (whatever the legal designation is) that legally prevented Richard Ravitch from acting as Lt. Governor. Most of the court's 22 pages is devoted to issues of jurisdiction, standing, which Article of the Civil Practice Law and Rules dictates the procedure to be used, and whether or not the matter is “justiciable” at all.

These are issues of enormous importance to the courts and to lawyers. If the court rules that the litigants have no right to sue on the matter, or that this isn't an issue for the courts at all, or that the court filings were done under the wrong statutes, the case can be won and lost right then and there, long before any issues of substance are arrived at.

We're in luck in this instance, however. Of the 22 pages, 2 or 3 pages are devoted to the actual substantive question of if the Governor has the legal authority to appoint a Lt. Governor. The Court concludes no, and the case they make is pretty convincing. They agree with me, that Ward v. Curran is a very weak case to try to cite as a precedent. Indeed, they say Ward "may be considered legislatively overruled" by changes made to the State Constitution since then.

The court also rules that Section 43 of the Public Officers Law was enacted to fulfill Article XIII, Section 3 of the State Constitution. This Section does not apply to the Lt. Governor, because vacancies in that office are provided for separately, in other parts of the Constitution. (Specifically, the ones reviewed above.) Therefore, Public Officers Law Section 43, providing for the Governor's appointment of elective officers in case of vacancy, by definition also does not apply to the Lt. Governor.

Pretty convincing, eh?

But of course not yet definitive; a higher court ruled against the court in Nassau County, and the case will eventually, in all likelihood, wind its way to the State Court of Appeals. In fact, I read there was a hearing this morning in a court in Brooklyn.

Proceedings of the New York State Constitutional Convention, 1967

In 1967, New York State had a Constitutional Convention. It produced a new Constitution for our State. Did you know that? I, for one, didn't. This is probably because the new Constitution went down to spectacular defeat at the ballot box, and to this day we still live under the Constitution of 1938.

Several “Propositions” were introduced at the Convention that dealt with the powers of the Governor. (“Proposition” is to Constitutional Convention as bill is to Legislature.) With one exception, as will be noted, none of these Propositions were “adopted” (passed) by the Convention. I've noted the sponsors of each Proposition, but I have no idea who any of them were, with one exception who will be briefly discussed a bit later. Many of the Conventioners were legislators or judges, so good odds are these sponsors were one or the other.

Proposition 540 (introduced by “Mr. McCurn”) granted to the Governor the power to nominate a Lt. Governor in the event of a vacancy in that office, by “majority vote of both houses of the Legislature.”

Proposition 562 (introduced by “Mr. Sobel”) retained the present ambiguity.

Proposition 919 (introduced by “Mr. Kane”) retained the present ambiguity.

Proposition 923 (introduced by “Mr. Kuhnen”) specifically provided for the appointment by the Governor, with the “advice and consent” of the State Senate, of a Lt. Governor, “in the case of a vacancy in the office of lieutenant governor alone.”

Proposition 1237 (introduced by “Mr. Reidy”) retained the present ambiguity.

Propositions 1354, 1354-A, and 1354-B (introduced by “the Committee on Rules, at the request of the Committee on the Executive Branch”) retained the present ambiguity. This “B print” of this Proposition was debated by the Convention on August 1, 1967, and passed. The present ambiguity did not come up directly.

However, “Mr. Sobel,” though he supported the Proposition, did point out it was ambiguous in some places, which he did not specify. This didn't worry him, though. The situations in which these ambiguities would arise were “unlikely to occur in our lifetime.” I almost fell over laughing as I read that, especially given the next Proposition we will consider.

Proposition 1366 (introduced by “the Committee on Rules, at the request of Mr. Sobel”) called for the Temporary President of the Senate to fulfill the duties of the Lt. Governor “until the end of the term,” thus neatly removing the present ambiguity without actually changing how things work. I find it very significant that this measure appears to have originated with Sobel. It was also introduced on August 1, 1967, the very day that Proposition 1354-B was debated and adopted.

Taken together, I think it is difficult to escape the conclusion that the 1967 Conventioners didn't think the Governor had the power to appoint a Lt. Governor. Probably some were OK with this, and some weren't, but I see no direct evidence that any of them thought otherwise.

And kudos to you “Mr. Sobel.” Given that you introduced a Proposition removing the ambiguity on the very day a Proposition that retained the ambiguity passed, I think it's safe to say that you saw it coming.

From the reading I've done, I believe you are Nathan R. Sobel, former judge, former advisor to many politicians, and a delegate not just to the Convention of 1967 but also to the Convention of 1938. Further, you worked for the State Assembly, for the U.S. House of Representatives, you were a Judge in Brooklyn, and you played a key role in the advent of Workers' Compensation in New York State. You were a constitutional scholar, who authored books on the Miranda Warning (which was then new), “legal and practical problems” of eyewitness identification (this one is still updated and re-published periodically), and on the law of search and seizure.

Sadly, we cannot benefit from your wisdom in this matter. You died in 1997.

http://www.nytimes.com/1997/05/21/nyregion/nathan-r-sobel-91-judge-and-an-adviser-to-politicians.html

Rest in peace and try to not piss yourself while you're laughing at us. Oh, and while you're laughing, consider this.....If you had been more specific about what ambiguities you saw, back on August 1, 1967, maybe we wouldn't be here.

Conclusions

As stated above, it's impossible to come to firm conclusions. There is enough ambiguity that it'll all come down to judicial philosophy. And I would not presume to probe the minds of the justices of the State Court of Appeals, as I value what remains of my mental health.

From these documents, however, I don't think things look good for Governor Paterson's appointment. That's too bad, really. Substantively, I agree with him that he should be able to make the appointment. I just don't see how he's able to.

I'll keep looking for a smoking gun, time permitting....Maybe the 1938 Convention notes will have more specific insights. Somehow, though, I doubt it.

Sometimes, ambiguities in the law exist because courts create them.

But, more often, especially when dealing with big issues like the powers of the Governor, ambiguities exist just because no one talks about them.

Tuesday, July 28, 2009

Roger's Revelations

It was, I felt, a report that deserved more attention that it got. There's a lot of possible reasons why the Press didn't agree with me. The source of the story, Roger Stone, is one of them. Another possibility is that the report cast Senator Pedro Espada as something other than the villain of the Senate Stalemate. The Press seems to think that Senator Espada makes a convenient villain, and let's face it, his own conduct often doesn't help his case. Another possibility is that the report was just too difficult to confirm.

I refer to Roger Stone's story, “Skelos Plot Against Espada Topples Coalition,” posted on his website on July 14, 2009. It's been two full weeks, yet I still can't quite get this story out of my mind. The story is still on Stone's front page, stonezone.com, so there's no dedicated link for the story itself yet. Based on how Stone's site has worked in the past, after it moves off the front page it will have its own, dedicated URL. Either way, I've copied and pasted the entire story as “Appendix One” of this commentary.

In brief, Roger Stone tells us that sources tell him (got to love Roger Stone's sources!) that Senator Pedro Espada went back to the Democrats after Senator Skelos attempted to sell out Senator Espada by trying to put together a different coalition, with Senator Klein (who represents northern Bronx and southern Westchester counties) as Temporary President of the Senate, and himself (Skelos) as Majority Leader. When Senator Klein couldn't produce any other Democrats to join the new coalition, Senator Skelos went to the “Gang of Four,” which included Senator Espada, and sought yet another deal. They, according to Stone and whoever his sources are, offered Senator Skelos a deal wherein Skelos remained Minority Leader, but acquired a fair amount of power. Senator Skelos rejected that deal. Senator Klein then informed Senator Espada of Senator Skelos' approaching him, and Senator Espada went back to the Democrats. The terms of his return are by this point well known; the new Senate Rules are likely to be the topic of a commentary in the near future. As may Senator Espada himself, who is a very interesting person to research and write about.

Stone's report astounds me because, no matter how you look at it, if the report is true, Senator Skelos comes off rather badly.

First, he tries to deal with with Senators Espada and Monserrate, both of whom are under different kinds of ethical or legal clouds, and one of which (Monserrate) a member of Senator Skelos' conference (Senator Golden) tried very hard to keep out of the Senate entirely.

(For a writeup on the ethical issues of Senators Monserrate and Espada, check this link. There's actually been a lot written about this but that link has an amusing quote from Tom Golisano in it; he refers to Senators Monserrate's and Espada's ethical and legal problems as “personal issues.” For some reason that gets a laugh out of me.)

Then, Senator Skelos effectively betrays one of his co-conspirators, the one of the two who had stuck by him (Senator Espada). Senator Espada, by contrast, had endured a smear campaign and vicious insults from his fellow Democrats, and protests from Citizen Action. This is a fact. Whether you like Senator Espada or hate him, it is a fact that he endured a lot of mud-slinging in his direction.

For more on what Senator Espada endured, deservedly or not, check here, here, here, here, and here.

In there, Senator Espada is compared to Evita Peron (not even Juan Peron, but Evita Peron) by Senator Liz Krueger, it's said that he left the Democrats over questions being raised about his member items, and his residency is questioned, among other things.

There's been lots written about Senator Espada's ethical issues. Maybe some accusations are true, maybe all of them are. Some, that he's had a troubled history with campaign finance filings for example, are pretty much beyond dispute! Either way, this was a lot of mud-slinging for one man, guilty or innocent, to endure, and Senator Espada endured it to stick by Senator Skelos.

So, first Senator Skelos arguably looks bad by dealing with Senators Espada and Monserrate at all, then he looks bad yet again by betraying the one of the two who stuck by him.

Then, Senator Skelos tries to put together yet another deal, this time with a group that contains Senator Espada (who, Stone implies, didn't yet know about Senator Skelos approaching Senator Klein). The deal Senator Skelos is offered grants him power, but not a title. He refuses. Roger Stone quotes Senator Carl Kruger as asking Senator Skelos if he wanted the "title or the power?" Ah, dreaded vanity. Frankly I'd have been happy with the power.

Basically Senator Skelos, if Stone's account is accurate, did the “wrong” thing at every turn. Executing a coup in the last days of Session that he couldn't possibly win (whether or not the Senate rules changes are worth the month stalemate remains to be seen, if they are I'll happily eat my own words); doing it with people at his side who were both under ethical clouds; then turning his back on one of them; then turning down a deal that gave him the substance he wanted, but not the title he wanted.

Let's now be fair to Dean Skelos. Let's talk about some matters lawyers might call “exculpatory,” meaning in this case stuff that might make him look less bad than I've painted him to be. I am nothing if not fair.

Firstly, Roger Stone could be flat-out factually wrong. There are plenty of reasons to not trust Roger Stone; some of them are outlined in “Appendix Two” of this commentary.

Secondly, I have to recall Senator Espada's early promises to bring more Democrats into the coalition, promises he failed to deliver on. So even if Roger Stone's account is 100% correct on the raw facts, it's possible that Senator Skelos turned his back on Senator Espada only after the latter's promises weren't fulfilled. If this is correct, then Senator Skelos' actions are less a betrayal than a combination of understandable retribution and political common sense.

Thirdly, perhaps the Senate rules changes will be worth it all. I'll be trying to study them more intensively soon.

I'm sure there's other ways to see it that don't make Senator Skelos look bad....But none of them come to mind right now. If I were a Senator in Skelos' Republican conference, I'd confront him about this.

The frustrating thing is we'll never find out if the revelations are true. Large chunks of the month-long stalemate will forever be blank spots.

But that's life in Albany.


Appendix One

Here is Roger Stone's story, copied and pasted directly from his website, stonezone.com. I think that once this story moves off the front page, it will have its own dedicated, archival link on the stonezone. Any spelling errors (who is Senator “Maziars?”) are Stone's, not mine.

“Skelos Plot Against Espada Topples Coalition: Republican Treachery Costs Them Power”

Republican State Senate leader Dean Skelos and his Press Secretary and Chief Political Advisor John McArdle attempted to stage a coup that would cast Senator Pedro Espada aside and make Senator Jeffrey Klein (D) the new Senate President. Klein was to bring a handful of other Democrats to the 'new' coalition with Skelos delivering all the Republicans. The plot brought the so-called bi-partisan coalition down and cost Skelos the Majority Leader's position.

When Klein was unable to deliver any other support, Skelos and McArdle opened negotiations with Senator Carl Kruger and the so-called 'Amigos' including Senators Rueben Diaz, Sr., Senator Hiram Monserrate offering to make Kruger Senator President if the Amigos would back a new coup. Kruger demanded both positions be filled by Democrats asking Skelos if he wanted the "title or the power?"

Despite Skelos effort to dump Espada with Klein, Espada tried to facilitate an arrangement with the Amigos to get a working majority in the Senate that was truly bipartisan. When Skelos insisted on retaining his title any chance collapsed.

The plots back-fired when Klein informed Espada of the treachery of his new Republican allies and the Bronx Democrat rejoined the Democrats with the inducement of the Senate Majority Leader's position. Democrats who were denouncing Espada and vowing never to recognize him as Senate President in that morning's New York Post, were electing him Majority Leader by lunchtime.

Espada extracted commitments that the reforms in the Senate passed to make the Senate more open and divide resources more fairly would stand and Upstate billionaire Tom Golisano extracted similar reform commitments from the new leadership. It was made clear that Smith will leave in January to make way for Sampson.

Skelos and McCardle conducted the secret talks that brought their rule down behind the backs of Senator Tom Libous and Senator George Maziars, the two senators most instrumental in staging the stunning and legal Senate take-over and without the knowledge of Upstate reformer Tom Golisano who was also key to getting Espada to join a coup and commit to a rapid reform agenda for the rotting Albany process.

Gov David Paterson was right when he said the perks being proffered to the turn-coats including those offered to Klein by Skelos to jump ship bordered on the illegal. Senate Republicans upset about being out of the majority again can blame Skelos and his clueless sidekick McArdle for ending their brief return to power.



Appendix Two

Reasons to not trust Roger Stone. Yes, I am debunking my own “source” for this commentary. Why would I do that? Because I believe in fairness and completeness, and in this case the “source” is part of the story.

Roger Stone is, I feel, not really as bad as his critics often say he is. He has his virtues. He's smart enough to know that politics is mean and physical, and a lot of very smart people tend to miss that. (The Senate Democrats, interestingly, have NOT missed Roger's lessons, as their conduct during the stalemate reflects.) Stone sometimes, but not always, has a degree of honesty about and perspective on himself that I find admirable. He, along with his then-employer, then-New York State Senate Majority Leader Joseph L. Bruno, stood up to Eliot Spitzer when so many others were....Doing something other than standing up. He recognized Spitzer as a bully, and he knew how to fight a bully. He is a very pro-Civil Rights Republican, and opposes the Bush-era trampling of Civil Rights, which is exactly where the Republicans need to be, especially in New York State. He's anti-Rockefeller Drug Laws. He trashes Republicans when he thinks they deserve it, and praises Democrats when he thinks they deserve it.

Those are his virtues. However, I don't like the man and find many reasons to mistrust him. Here are some of them. I'll try and document everything, even though most of this isn't in dispute, and Roger Stone would acknowledge most of it. In fact I'm pretty sure he'd admit to everything I'm saying here. I'm leaving off the sex stuff that's often discussed when his name comes up, and I'm also leaving off the threatenning phone call he's alleged to have made to Eliot Spitzer's father. (He denies it....I figure I'll stick to stuff that isn't denied.)

Roger Stone is friends with Al Sharpton. Because I personally don't like the Reverend Al, I find this to be a negative. (If you like Al Sharpton, you are likely to disagree.) See this article in the Village Voice. Stone even had a role in Sharpton's Presidential campaign.

If you thought President Bush 2 was bad, imagine President Sharpton. Probably not much worse, actually. But, as we'll see later, Stone was partly responsible for Bush 2. Al and Roger are said to share an admiration for Adam Clayton Powell, and to agree on Civil Rights issues (but nothing else).

Roger Stone has also worked for Tom Golisano, the Rochester (now Florida) billionaire who first helped to flip the Senate to Democratic hands, then was a driving force behind the June Senate coup. Note this New York Times article from 2002, referring to stone as Golisano's “Campign Advisor.”

As is the case with Sharpton, I have a personal dislike of Golisano, and thus find Stone's association with him to be a negative. Golisano needs to stay in Florida. He's already “helped” enough by helping to give the State Senate to the people he later felt the need to wrest it from.

Now, those who like Sharpton or Golisano of course see these as reasons to like Stone, not dislike him. That's fine. But let's go on.

Roger Stone has a tattoo of Richard Nixon across his own back. Never trust a man who has Richard Nixon permanently guarding his back. Do a Google image search if, for some reason, you want to see this.

Perhaps the most damning thing, since Stone's association with Richard Nixon, to my mind, occurred during the 2008 Presidential election. Watch this video, from Fox News, especially second 20 to second 55. Roger Stone stated he's heard a “buzz” that some “indelible record” exists of Michelle Obama “allegedly” (he uses the term “allegedly” twice!!!) making remarks that “could be termed racist.” Have you ever heard a more qualified statement than that? Oh, and by the way, the tape never surfaced.

Finally, Roger Stone had a substantial role in the events of Florida in 2000, resulting in the Presidency of George W. Bush....And thus all of the Civil Rights violations that Roger Stone later came to disapprove of. Note the mention of these events in this New Yorker article, and this article on Stone's own website.

Stone has, in that last link, repudiated his involvement and has trashed the Bush legacy. Great for him. That's to his credit. However, he's in part to blame for that legacy existing to begin with.

So anyway....Those are some of the reasons to doubt Roger Stone's credibility.

So why do I believe his story about Dean Skelos and the coup? It just feels right (same with a lot of his anti-Spitzer stuff, it felt right and it was later mostly confirmed by other sources anyway), and it explains things more fully than do more conventional accounts of the coup.

But like I said above, sadly we'll just never know for sure.

Wednesday, July 22, 2009

David Paterson and the Union Endorsement

I read this article on the New York Times Internet site this morning:

http://www.nytimes.com/2009/07/22/nyregion/22unions.html?_r=2

In brief, the article states Governor Paterson appears weak enough that the unions are considering withdrawing their support of him, in favor of Democratic candidate. Andrew Cuomo comes to mind.

One possibility is that the unions are incredibly concerned that a Republican Governor will be elected in 2010, and they will take extreme steps to prevent that, even turning their back on an incumbent Democrat with deep labor ties.

Another possibility, however, is that this is some kind of revenge for David Paterson threatening State employee layoffs, pushing for a "Tier 5" public sector retirement package, and trying to reduce the size of the State workforce.

If that is an element here? I would urge the unions to think carefully.

Speaking in support of public sector layoffs, a public official in New York State once said:

''If you did it [reduce the size of the State workforce] purely by attrition, you couldn't manage the system because you couldn't control it. You might have a psychiatric facility that you couldn't run anymore. So if you want to control it and do it intelligently, you have to go to layoffs.''


This official? Former Governor Mario Cuomo.
Source: Michael Oreskes, "Cuomo's Personal Touch." New York Times Magazine (Sunday). January 29, 1984. I downloaded it (I don't keep hard copies of the Times Magazine from 25 years ago) so I don't have a page number for you.

One of Governor Cuomo's chief aides at the time was Andrew Cuomo, then a 26 year old young man.

Now, granted, as HUD Secretary, Andrew Cuomo sought to reduce the workforce without layoffs. However, according to this article:

http://www.govexec.com/dailyfed/0698/061598t1.htm

it didn't go all that well.

(Keep in mind that this seems to be from the National Journal, a publication not known for its objectivity especially when it comes to Democratic officials.)

My point here is that, if the unions are looking to find a new friend by opposing David Paterson, they should tread carefully. You can't always tell who your friends are.

Not to mention the fact that if Andrew Cuomo doesn't run, then the unions will be stuck dealing with David Paterson (a man whose back they were poised to stab) until at least the end of 2010.

Tuesday, July 14, 2009

Senate Pay Raises

The Albany Times Union has reported big pay raises for Senate staffers. They took place in the midst of the lost month due to the coup, and they were retroactive...Meaning that all the beneficiaries got a nice one-time lump-sum payment reflecting retroactive pay going back some months. I don't know the time interval involved.

Normally I'm a big supporter of paying people in government well. This includes Senators. Until June 8 I'd probably have supported a Legislative pay raise, not this year but in another year when we could absorb it better. Same for Senate staff.

However.....This raise is wildly inappropriate. A lot of the reasons for deeming it so have been covered elsewhere, but here's another one, something I learned yesterday.

The Public Management Internship (PMI) program has been "suspended":

http://www.cs.state.ny.us/pmi/

The PMI is basically a graduate school-level internship program for the State workforce. It is, literally, the future of the State workforce, the State's chance to recruit people out of graduate school before they get seduced by lucrative consulting positions. So far as I know, the Senate's version of the PMI, called the Senate Fellowship program, is still on for 2009-2010.

So, the fiscal crisis squeezed out the future of the State workforce (literally)....except for the future of the Senate's own workforce. And, oh by the way, it didn't squeeze out pay raises for the top Senate staffers. The mid-level and low-level staffers are often underpaid. But these top-level types? They were not underpaid by any standard, unless you're using Wall Street standards. And that's just....I mean come on now. Wall Street types are so often overpaid that comparing anyone to them is just asking for trouble.

Anyone remember the big pay raises for Governor Paterson's staffers some months back? Also inappropriate, for the same reason.

Under many circumstances I'd support pay raises for legislative staffers, and indeed for the legislators themselves. Some legislative staffers are underpaid, especially relative to the executive branch workforce, and to the private sector. (Despite publicity to the contrary, if you actually look at labor statistics, on average the private sector pays MORE than the public sector at least in terms of straight salary. When you think about it, though, the Senate staffers who got the raises weren't exactly underpaid to start, now were they.) Maybe even for the Executive Chamber. (Though it's hard to say that they are underpaid relative to ANYONE.)

But not in the middle of a fiscal crisis that has squeezed out the PMI program, and has caused the Governor to institute a hiring freeze and threaten layoffs and ask the unions to forego 3% pay raises and ask the Legislature to pass a Tier 5. In some cases, the total salary for people hired through the PMI was similar to the raises received by the Senate staffers!

And especially (with regard to the Senate staff raises) not when the Senate has proven itself to be dysfunctional in a way that it had until June 8 been only in the wildest dreams of "reformers."

Some depressing, disconcerting stuff.

At least wait until a better year, people. They were making high-5 or low-6 figures. They could afford to wait. The Senate's Democratic Majority is only going to expand from here, you have plenty of time to build a patronage mill. When you get started this early, people tend to take it the wrong way.

Wednesday, July 8, 2009

So....The Governor might try to appoint an Lt. Governor.

This symposium is potentially valuable reading.

http://www.rockinst.org/pdf/public_policy_forums/2008-05-29-public_policy_forum_gubernatorial_succession_and_the_powers_of_the_lieutenant_governor.pdf

The Times Union's political blog has a different link to the same conference.

I am not yet prepared to address the appointment issue in a legal sense; I have to do a lot more reading before I come to a reasonable assessment. Maybe I'll bother, maybe I won't.

Speaking politically, however, it is my position that, even if Paterson makes such an appointment, and even if it sticks Constitutionally, it will not settle the Senate stalemate. At least not by itself.

1. Firstly, the mere fact that this is an ambiguous constitutional question means such a move will be litigated, and that litigation potentially will far outlast the stalemate.

2. Secondly, let us assume no one feels like contesting Governor Paterson's authority to make such an appointment. I bet someone will contest the new Lt. Governor's authority to cast a tie-breaking vote (this is known in political and legal circles as the "Casting Vote") when it comes to matters of Senate leadership. Maybe that dispute wouldn't delay voting on actual bills. Maybe it would. Either way, there's enough litigation in there to ensure the stalemate continues despite the appointment.

3. Thirdly, let us assume no one feels like contesting Governor Paterson's authority to make such an appointment, or that the appointee can cast a Casting Vote on matters of leadership. This brings us to the issue of whether or not any Lt. Governor can cast a Casting Vote when it comes to legislation, or if it's limited to resolutions. Many have argued this issue. I, by the way, am not one of them. I am inclined to think the Lt. Governor's Casting Vote DOES apply to legislation. But my word isn't going to be enough for any court. The point is that the issue is a disputed one. Someone would litigate it, and this litigation would outlive the Senate stalemate.

I'm not saying I oppose this move. There are some good reasons to support it. Some VERY good reasons, actually.

One of them is that the Senate might settle their dispute faster for fear of having the matter taken out of their own hands. (In other words, the move might help settle the stalemate indirectly.)

Another is that the last time I looked, the State Budget still had a line for the Lt. Governor's staff. This information may be out-of-date, though. But if it's not, if we're going to have an Lt. Governor's staff, we might as well have a Lt. Governor to go with it.

Finally, this move, if it sticks, would mean that New York State wouldn't be dependent upon the State Senate to have a Governor if the current Governor died or left the State. Imagine the chaos if David Paterson were to die, right now. Close your eyes and imagine it. Now tell me you oppose this move anyway.

All I'm saying is that the Senate STILL, at the end of the day, will have to settle its own internal problems, regardless of what the Governor does, or does not, do.

Go David Paterson. But please don't tell me you expect this, by itself, to settle the Senate's dispute.

You're not that stupid, I know....Sorry for asking.

Wednesday, July 1, 2009

Heimbach v. State of New York

Heimbach v. State is the name of a court decision being invoked by the State Senate Democrats to justify their claim that Senator Padavan's (R-Queens) brief appearance in the Senate Chamber means they had a quorum in the chamber, thus making legal the votes taken.

The State Senate, like most legislative bodies, cannot legally act without the presence of a quorum. This is to prevent a small number of the Senators from gathering and passing bills in the name of the entire body. Without a quorum requirement of some kind, the 3 Senators whose districts are in the Albany Area could get together whenever they wished and run the Senate between them.

The date of all this was June 30, 2009, and the key memorandum outlining the Senate Democrats' argument was authored by Senate Democratic Counsel Gregory M. Krakower.

The Krakower memorandum is located here:

http://www.scribd.com/doc/17004596/Talking-Points-Passage-of-Bills-F2

The citations for the court case are:

89 A.D.2d 138 (2nd Dept. 1982) (this was a State appeals court);

59 N.Y.2d 891 (1983) (this was the State Court of Appeals, New York State's highest court, affirming the decision of the appeals court);

464 U.S. 956 (1983) (this was the United States Supreme Court; the Krakower memo identifies the year of this decision as 1984, but the database I'm using says 1983, so that's the date I'm going with).

Using databases, I was able to review these cases for myself. I don't know if interpretation of this case will prove to be important or not. If a power-sharing deal is reached, and/or if one side or the other manages to gain power without a deal in some way, it won't matter in the slightest, because it'll be the deal that's controlling. However, if there is no deal reached, this court case and how it is interpreted could have a major impact on whether or not bills passed by the Senate on June 30, 2009 were legal or not.

Assuming I am reading this case correctly , I'd be very surprised if the court accepted it as a precedent for the Padavan matter, as the circumstances were A LOT different.

The Senator at issue back then, Senator Nolan, was in the hospital undergoing elective surgery during the final hours of the Legislative Session, and specifically had filed his presence with the journal clerk before slipping out to have the surgery. (Unlike Senator Padavan who appears to have randomly wandered into Session on his way to a side room to obtain either coffee or a V-8 or a sandwich, or all 3. Accounts of what he was after have differed, and honestly I find the press's focus on that [non-]issue a little disconcerting.) Senator Nolan understood that in slipping out when he did, he was assenting to vote "aye" on all slow roll call votes, and, in response to the Heimbach v. New York case, he signed legal paper stating that in response to this suit.

The issue arose when, out of a 60-member Senate, on a particular bill 31 votes were cast "aye" (including his), 26 votes were "nay," and 3 Senators were "absent." The suit wasn't filed by members of the Senate, but by come county governments who didn't want to enforce the Chapter of Law the disputed vote enacted. (I have no idea what the subject of the legislation was. In theory it shouldn't matter for these issues, though.)

The facts of the case and the legal reasoning used were gleaned from the appeals court's decision. The State Court of Appeals merely affirmed the appeals court, and the U.S. Supreme Court case decided there was no federal question. (In other words, "upon reflection, this is strictly a state matter, so why did you bother us?")

No I am not a lawyer. Further, I fully accept that, sometimes, courts disagree with me, and probably would even if I were a lawyer. Further, this article isn't commenting on the legality of Padavan's presence in the Chamber per se. There may be all kinds of reasons why the courts could rule that his presence in the Senate Chamber did indeed constitute a quorum. However, upon reading the actual Heimbach case, I'd be hard-pressed to think the courts would consider it a precedent, because the sitautions were vastly different.

Courts have surprised me before, however, so we'll see.

Having said all that? Were I Senator Padavan, and making sure the Senate had quorum as infrequently as possible was highly important to my side of this dispute? I wouldn't have been anywhere near the chamber and it begs the question....What was he thinking? He could have slipped out and gotten his coffee, V-8, or sandwich, or whatever it was at any number of other places in easy walking distance of the capital.

What was he thinking? Please don't tell me he didn't want to pay for the items. Cynicism about politics is fine but come on now, to think he'd endanger his side of the fight to avoid paying less than $10 for some food items is a bit much!!??

EDIT: A few hours later, being the kind of person who strives for thoroughness, I went back and read the decision yet again.

First of all, I wanted to note that the bill at issue dealt with taxes in the MTA District, something of a perennial issue.

Secondly and more importantly, however, I got an important (but I'd argue not critical) detail wrong in my initial entry: The Senator at issue had told his leader (the Minority Leader of the State Senate) he was going to be absent, and the Minority Leader "forgot" to inform the Clerk.

To me, as a non-lawyer, the cases still seem really different.

But as I said in the un-edited, initial article: The court may still rule against the Republicans, I just can't see them using this particular case to do it, as the circumstances were very different. "Senator passing through the chamber," versus, "Senator wasn't going to be around all day, but absence never noted."

The underlying principle, I think, is, "the Senator doesn't have to be physically present."

In more recent years, though, the State Senate has had quorum calls in the middle of sessions before, I've seen it. So the rules regarding when they need to be in the chamber are clearly nowhere near as lax as they once were, some decades ago.

I'm just rambling now....We'll see what happens.

Dysfunction

New York State's politics, sometimes abbreviated to "Albany," is often referred to as "dysfunctional." "Albany is dysfunctional."

I normally take issue with this statement. When most people say the process is dysfunctional, what they mean is that the process doesn't give them what they want. Because what they want must be right, there must be something wrong with a process that doesn't give the "right" results, which is to say what they want.

If nothing else, the goings-on in the Senate are finally an example of dysfunction in the literal sense.

Look here:

http://www.merriam-webster.com/dictionary/dysfunction

I'd say this all qualifies.

I was fascinated at first....The longer this goes on, though, the more it ceases to be fascinating and becomes simply depressing.