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Originally Published: September 22, 2009

Decision upholding appointment of Lt. Governor

Groups urged Governor in early July to undertake this constitutional move to break deadlock in State Senate

Citizens Union and Common Cause/NY hail the historic decision issued today for the citizens of New York, as the state’s top court upheld the Governor’s Constitutional authority to appoint a Lt. Governor when a vacancy occurs. While it had become accepted conventional wisdom that a vacancy in the office of Lt. Governor could only be filled through statewide election, Citizens Union and Common Cause/NY, along with Assemblyman Michael Gianaris of Queens, forcefully argued in a July letter to Governor Paterson that he had the Constitutional authority to alone make such an appointment.

The groups urged the Governor to appoint a Lt. Governor in order to break the gridlock that paralyzed the state legislature through June and early July 2009, and to clarify the line of succession to the office of Governor when several individuals were claiming that they could rise to the seat.

The Court of Appeals decision reads, in part:

“Until today, the interplay between Public Officers Law § 43 and article IV, § 6 of the Constitution presented an open legal question … While it has been suggested that [earlier Lt. Governor] vacancies were left unfilled because of some consensus as to the unavailability of the power of gubernatorial appointment, it is at least equally likely that they remained vacant for purely political reasons. Given these circumstances, it is entirely understandable that plaintiff has acted vigorously to defend his interpretation of the relevant Constitutional and statutory provisions. Having given due consideration to plaintiff’s argument, however, we conclude that Public Officers Law § 43 affords the Governor the authority to fill a vacancy in the office of Lieutenant-Governor by appointment.” [emphasis added]

Dick Dadey, executive director of Citizens Union said, “Good government won today an important ruling when the Court of Appeals agreed with the Governor’s legal analysis – put publicly forward by Citizens Union and Common Cause/NY prior to the Governor’s appointmet decision – that he had the current authority to appoint a Lieutenant Governor. The solution, while not immediately evident, was always there in the law and the constitution. One only needed to read them together to get the full picture on how it was possible. The political chaos of this summer required a total reexamination of the Governor line of succession issue which is how we found a plausible and ultimately legally sound method for action. This decision brings a needed dose of stability to state government as the Governor and state legislature must now address very challenging fiscal issues that require that all hands be on deck. Having Dick Ravitch in the mix now will only be good for the citizens of New York.”

Susan Lerner, executive director of Common Cause/NY, said, “This is a good day for New York. Today we celebrate the ruling by the Court of Appeals supporting the straightforward interpretation of the law that we offered to Governor Paterson in July. The Governor acted quickly on our recommendation, which swiftly ended the stalemate in the State Senate. As we also predicted, the case moved very quickly through the courts and the Court of Appeals acted decisively to resolve any uncertainty, by upholding the constitutionality of Governor Paterson’s appointment of Richard Ravitch as Lt. Governor. While this decision does not address the broader reforms that are so desperately needed in Albany, it is a major decision that facilitates a state government that can function more smoothly in the short term. Like all New Yorkers, we are grateful that attention can now shift to solving the significant challenges facing the state and expect that the good ideas and experience which Lt. Governor Ravitch brings to his position will benefit us all.”

In addition to offering their recommendations to the Governor in early July, the groups quickly lined up experts in New York Constitutional law to provide legal support for this recommendation, including:

  • Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law School
  • Jeremy Creelan, Partner, Jenner & Block, LLP, former Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law.
  • Evan Davis, Partner, Cleary Gottlieb Steen & Hamilton LLP, and former Counsel to then New York State Governor Mario M. Cuomo.
  • Victor Kovner, Partner, Davis Wright Tremaine LLP, and former Corporation Counsel, City of New York under then Mayor David Dinkins.
  • Robert M. Kaufman, partner, Proskauer Rose, and former President of the Association of the City Bar of the City of New York.

The groups were represented by Caitlin Halligan, Gregory Silbert and Dotan Weinman of Weil, Gotshal & Manges in the amicus briefs they filed before the Appellate Division and the Court of Appeals defending the constitutionality of the Governor’s appointment.

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