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.