The first issue for the Court was the question of standing. It was suggested here that the Court could avoid the larger issues by simply finding that Senator Skelos lacked the standing to sue Paterson in their official capacities. However, the Court found a greater purpose to this case in resolving the Constitutional issue.
...the public's interest is best served by resolving the constitutional issue presented by the Governor's action as expeditiously as possible.
The Court then moved to the merits of the case and the process for filing vacancies. The Court pointed out that the Constitution calls for the legislature to provide a process for filing vacancies in Article 13, Section 3. It noted that the Legislature had passed three laws on the subject in Public Officers Law 41, 42, and 43. 41 addresses vacancies for AG and Comptroller, 42 addresses vacancies for elective offices and mandates special elections except for US Senate, and 43 allows for the filing of other vacancies. The Court also noted that 42 specifically exempted Governor and Lieutenant Governor.
The major ability for Governor Paterson was the language of 43, which allowed all other positions that lay vacant to be appointed by the Governor until an election can be held. Essentially the language here is extremely vague and grants the Governor broad latitude.
The test that the Court laid out for the Governor's powers under 43 was that he was a) the Governor in good standing (as a result of Spitzer's resignation), and b) that no other provision granted powers to fill a Lieutenant Governor vacancy. The Court noted that the only other provision relevant was Article IV Section 6, which grants the Temporary President of the Senate the ability to fill the position of Lieutenant Governor so long as there is no Lieutenant Governor. The Court found that language to be complementary. The lower court found this provision to prevent the Governor from appointing a Lieutenant Governor, but the Court found the language to only provide for temporary powers until a new appointment is made.
The Court looked briefly at the examples of other states to discuss whether Governor Paterson should be allowed to appoint because of the proximity to another general election. Essentially the Court saw examples that filing a position until the next proper election could in fact be the general election of 2010.
The Court then addressed the democratic arguments presented by Skelos. The Court referenced Ward v. Curran, where the Court affirmd that the Lieutenant Governor should be filled at the next election after a vacancy. However the Court noted that after this decision, the Legislature amended the law to exempt the two executive officers of the state from the electoral vacancy language of POL 42, as mentioned above. Additionally, the decision in Ward was partially based on the separate election of LG and Governor, while the Constitution was subsequently amended to avoid different elections and the possibility of electing two individuals from different parties.
The Court construed that the intention of the Legislature in amending vacancy laws in the wake of Ward and in its historical context meant that a vacancy would be filled by the Governor.
Filling the office by gubernatorial appointment is entirely consonant with the purpose of the post-Ward legislative and constitutional amendments, whereas requiring that the office be left vacant risked a scenario of the sort that the Legislature at Governor Dewey's behest sought to avoid - one in which a president pro tem of the Senate, quite possibly of a party other than the Governor, would, while performing the duties of the Lieutenant-Governor during a vacancy in the office, actively oppose the Governor's agenda and frustrate the work of the executive branch.
The Court recognized the problems with unelected officials holding these positions. However, the strategic choice of efficiency in our current governing structure and the constructing of POL 43 was more salient to this Court.
To be sure, the subordination of the elective principle in this context is not entirely unproblematic. It does create the possibility that an unelected individual will, for a time, occupy the State's highest office. Rules of succession are, however, inevitably imperfect and, at some stage of the devolution they direct, invariably compromise elective principles. Before us, however, is not the abstract question of whether it would be better in the case of a vacancy in the office of the Lieutenant-Governor to fill the vacancy by election or by gubernatorial appointment subject to legislative confirmation or by gubernatorial appointment alone. For now, the Legislature, pursuant to an express grant of constitutional authority, has specified that the vacancy is to be filled not by election but by gubernatorial appointment alone -- a determination that the Legislature is always free to revisit.
In many ways this is a logical decision by the Court of Appeals. If the Legislature did amend statutes in the wake of Governor Dewey's problems after Ward, then the Court is right that the Governor now holds appointment power. However, it's exceedingly silly that the state has three different vacancy provisions and allows for a catch-all vacancy filling in POL 43. |
