Academic journal article Albany Law Review

Skelos V. Paterson: The Surprisingly Strong Case for the Governor's Surprising Power to Appoint a Lieutenant Governor

Academic journal article Albany Law Review

Skelos V. Paterson: The Surprisingly Strong Case for the Governor's Surprising Power to Appoint a Lieutenant Governor

Article excerpt

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.

I. 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. …

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