| The primary question is whether Governor Paterson has the right, under Section 43 of Public Officers Law (PBO) and Article XIII, §3 of the state constitution, to appoint a Lieutenant-Governor. This Court ruled that he does, but in doing so they relied on a statement that the Court already ruled against and ignored a key provision of that section of the state constitution.
Specifically, in a footnote on page 10 of their ruling (available on the NY Times website here) they rely on a "pre-Ward" opinion by the then-Attorney General. Under this opinion, PBO Section 43 was, at the time, essentially the same as Section 42 with regard to the Lieutenant-Governor. The problem with this reliance is that in the "Ward" case referred to here the Attorney General was on the losing side, so how does this Court rely on opinions it refused to accept?
Good question.
Moving on to Art. XIII, §3 of the state constitution, the Court was careful to address the question of whether the part of that section that limits a Governor's power to appoint someone to fill a vacancy to the calendar year (officially "political year") in which the vacancy occurs. In this case, the Court decided that the provision that "no person appointed to fill a vacancy [in elective office] shall hold his or her office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy" doesn't apply. They choose to apply an assumed "intent" rather than just read the words of the constitution.
What's worse, the Court chooses to ignore the rest of the section, which provides an exception to the "end of the year" rule for appointments to boards of education. If there is such a specific exception for boards of education, but there is no such exception for a Lieutenant-Governor, no reading of "intent" other than a firm deadline can reasonably be read into the language of the constitution. Yet this Court has done exactly that.
Shameful!
In sum, the Court relies on a discredited (by the Court) opinion on the meaning of PBO Section 43, and ignores the actual language of the constitution in favor of their unsupported reading of "intent."
Add to this the fact that the Court declined to consider whether the plaintiff, Dean Skelos, had standing, preferring instead to rule that it didn't matter. As the dissent clearly points out, Skelos does have standing, and the Court should have addressed that question. Instead, the Court chose to rush to judgment, based on faulty reasoning.
Why? I suspect -- with no evidence, much less proof -- that Chief Judge Lippman, who was appointed by Governor Paterson, and his three partners in shame (another "gang of four"?) decided in advance how they would rule, and merely looked for an excuse to rule that way.
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As I teased before, a further appeal may be possible. Without knowing the history of the tactic I am about to outline, my gut feeling is that it won't work, but I believe it is an interesting topic of discussion.
The only place to appeal this decision is to the federal courts, and federal courts, even the U.S. Supreme Court, will not overrule the state's highest court with regard to interpretation of the state constitution. In order to appeal to federal courts, therefore, a case must be made that the state constitution, as interpreted by the state's highest court, is in violation of the federal constitution. In this case, such an argument might be made.
Article IV, Section 4 of the U.S. Constitution states that, "The United States shall guarantee to every state in this union a republican form of government." The Court of Appeals' interpretation of the state constitution is denying to New York, and to New Yorkers, a republican form of government in that the selection of a Lieutenant-Governor, an elective position, can be made by one person alone.
Even the U.S. Constitution, in the 25th Amendment, does not grant to one person alone the right to appoint a Vice President; that nomination by the President must be approved by a majority vote in both houses of Congress. The New York state constitution, as interpreted by the highest court in the state, apparently gives one person the sole right to appoint a major figure, the person who will certainly act, on occasion, as chief executive of the state, and the person who is first in the line of succession.
This is clearly in violation of both the letter and the "intent" of the U.S. Constitutional provision of a "republican form of government," and is therefore unconstitutional. It only remains to be seen if anyone will push that issue, and if the federal courts will be willing to take it up. |
