My (Delayed) Reaction to Skelos v. Paterson

The first thing that struck me when I read the final State Court of Appeals decision in Skelos v. Paterson was the lack of explicit references to historical research and the innumerable “friend of the court” briefs that the Court undoubtedly received in order to help it make its decision. I guess I half-expected a long, in-depth historical analysis, but I noticed no explicit references in the decision to any part of the historical record, with just the following exceptions:

• The legislative history of the relevant portions of the Public Officers Law;

• The related legislative history of the relevant portions of the State Constitution; and

• Also related, the old Court of Appeals case Ward v. Curran, and the political reaction to it.

But upon a moment's reflection,I can understand why there weren't more explicit references to history. Readers will recall an earlier entry wherein I, unsuccessfully, sought answers to these questions in the record of the 1966 New York Constitutional Convention, and in other historical materials. I couldn't find much. With one exception (see that entry for details) almost everyone who ever thought about this issue seems to have just assumed, without thinking, that the Governor could not appoint a Lieutenant Governor. This is not one of those instances where the past has a lot to teach us, and where questions being asked now have been asked before. It's really quite the opposite. The politicos of the past seem to have never really thought to ask this question, let alone answer it. They assumed the answer, rather than analyzed the issue.

Given the ambiguity of the issue, the majority and minority opinions both make about an equal amount of sense. I can only assume that those who attribute the decision solely to partisan politics are reacting in a knee-jerk manner. While I firmly believe that politics always plays a role in any decision of any high court in any jurisdiction, and somehow I doubt the New York State Court of Appeals is an exception, even a cursory review of the relevant materials will reveal that the decision is equally plausible on the merits as it is on the politics.

Long ago I had suggested that the matter would come down to judicial orientation. Judges, I felt, who broadly speaking believe that Governors cannot perform actions not specifically allowed to them would rule for Skelos. And by contrast, Judges who broadly speaking believe that Governors can perform actions not specifically forbidden to them would rule for Paterson. I was probably right when I said this, but I now see that I have to qualify my claim somewhat. I haven't extensively reviewed Court of Appeals decisions on Executive-Legislative relations, and thus have no evidence upon which to draw broad conclusions about the philosophy of any of its individual judges.

So, let me qualify my proposition: The decision I feel came down to judicial philosophy on executive power, at least as it related to this particular issue. It's conceivable that a judge's philosophy could lead him or her to pro-executive power decisions in some cases, and anti-executive power decisions in other cases, depending on the circumstances and what the law said. (I doubt it though.) However, in this particular case, the ambiguity was so great that there was little to hang a decision on except for one's personal judicial philosophy. Neither side of the argument has any firmer basis than the other. Almost everything in this case is a matter of how one squints.

The majority opinion (the ruling of the court) basically held that the preference of current law is that vacancies in office need to be filled. Elections to fill a vacancy in the event of a vacancy in this particular office have been specifically overruled by statutes and constitutional provisions, and gubernatorial appointment is how vacancies in elective offices are generally filled. The performing of the duties of Lieutenant Governor by the Temporary President of the Senate during the vacancy is not the same as actually filling the vacancy. This could easily result in the same situation post-Ward decision that caused the Governor and the Legislature to change the law to what it is today: A Lieutenant Governor that was politically opposed to the Governor who would attempt to hinder the Governor's agenda and the operations of the government. If the Legislature had wanted to exclude the Lieutenant Governor from gubernatorial appointment, it would have done so more explicitly.

The minority opinion basically held that the Temporary President of the Senate's acting as Lieutenant Governor effectively filled the vacancy; it was an alternative to gubernatorial appointment under the Public Officers Law. If the Legislature had wanted to subject the office of the Lieutenant Governor to gubernatorial appointment, it would have done so more explicitly. Reversing 2 centuries of judicial interpretation opens up the State to a bizarre scenario wherein the Governor could one day be a person for whom no one had voted for any office whatsoever. The Temporary President of the Senate is at least elected by the voters in his or her district, is then further elected by Senators who have themselves been elected by voters in their district, and as Temporary President serves a statewide constituency.

Neither side argued their case with particular strength. There were, for example, none of the sly, literate, very judicial insults that one often sees in high court decisions. No one referred to their position as inherently obvious. Both sides respected one another's sincerity, and the sincerity of the litigants. Both sides appeared to recognize that their cases were weak by definition, and thus hedged their bets.

The majority relied in large part on how similar statutory or constitutional frameworks are interpreted in other states. The minority criticized this reliance, but then themselves relied upon an analogy to the federal constitution. I found this mild hypocrisy amusing, if curious.

The majority, to their credit, bypassed the question of Skelos's “standing” to file the suit to begin with. The question of standing is often used by high courts who want to sidestep an important issue. The Court of Appeals's majority recognized that this matter was too important to not address. The minority, by contrast, devoted over 6 pages (but not quite 7 pages) to confirming Skelos's standing to sue.

This is a strong, solid decision that will have a positive impact on New York State for years to come.

Whether or not it will help New York State's current budget woes and its current Governor remains to be seen.