In 2009 Sheldon Silver, who has been taken into federal custody today on charges of corruption, fraud, wire fraud and extortion, pushed hard to promote his childhood bosom friend Jonathan Lippman for the position of the Chief Judge of the New York State Court of Appeals.
In 2010 an opportunity presented itself for Judge Lippman to pay to his childhood friend for his efforts through a court decision - and he did.
Back in 2010 when Governor Pataki was under pressure to resign,Governor Pataki appointed a Lt. Governor.
Lt. Governor is a constitutional elective office in New York, not subject to appointments.
NYS Majority Leader of the Legislature Dean Skelos sued Governor Pataki claiming Pataki did not have authority to appoint a Lt. Governor.
The case went all the way to the NYS Court of Appeals.
Guess who authored the opinion of the NYS Court of Appeals?
And guess who cast the decisive vote in a 4-3 divide with a strong dissent?
Of course, our champion of the rule of law, Judge Jonathan Lippman.
And guess what dissenter in that case was not re-appointed by yet another Democratic Governor (Cuomo) and instead a pleasantly corrupt judge was?
Judge Victoria Graffeo was one of the dissenters in that case - read about the controversy about her non-re-appointment and appointment instead of Judge Leslie Stein, and the circumstances of appointment of Judge Leslie Stein here.
Here is the background of the power struggle that Jonathan Lippman helped his friend Sheldon Silver resolve through his use of power as a judge of the NYS Court of Appeals.
Judge Lippman's decision states the following:
"In November 2006, Eliot Spitzer and David Paterson were elected respectively to the offices of Governor and Lieutenant Governor. On March 17, 2008, Governor Spitzer resigned and, pursuant to article IV, § 5 of the New York Constitution, Lieutenant Governor Paterson became Governor.
Fifteen months later, Republicans and Democrats split 31-31 in the Senate. Because each party recognized a different temporary 147*147 president of the Senate, this political deadlock complicated the conduct of day-to-day business in the Senate chamber. Moreover, it was not clear which one of the rival temporary presidents stood next in the line of gubernatorial succession.
On July 8, 2009, Governor Paterson responded to this situation by appointing Richard Ravitch to the office of Lieutenant Governor. Pursuant to article IV, § 6 of the Constitution, the Lieutenant Governor presides over the Senate and casts a tie-breaking vote on certain procedural matters.
Governor Paterson relied on section 43 of the Public Officers Law in making this appointment.
The following day, plaintiff Dean G. Skelos, a State Senator elected from the 9th Senatorial District, commenced this action for a declaratory judgment that the Governor's appointment of Mr. Ravitch was unconstitutional.[1] He also sought to permanently enjoin the Governor from appointing any individual to the office of Lieutenant Governor. Plaintiff then moved to preliminarily enjoin Mr. Ravitch from acting in the capacity of Lieutenant Governor. Supreme Court, Nassau County, granted the preliminary injunction (25 Misc 3d 347 [2009]), and the Appellate Division, Second Department, affirmed (65 AD3d 339 [2009]). Thus, Mr. Ravitch has, to date, not presided over the Senate."
So, when the case reached the NYS Court of Appeals, two previous courts ruled that what Pataki did was unconstitutional, and what is unconstitutional may not be overruled by what is provided by statute, as the State Constitution is the Supreme Law in state issues. Jonathan Lippman was sworn as a judge to uphold that State Constitution.
But - Lippman's buddy Silver wanted Ravitch to be Lt. Governor.
Here is what the clash was about.
The Appellate Division 2nd Department stated:
"We have no quarrel with those who say that having a man of Mr. Ravitch's stature, knowledge, and experience in the office of lieutenant governor would promote the public interest by providing help and counsel to the Governor in difficult times and by bringing much-needed stability to the government of this State. We conclude, however, that the Governor simply does not have the authority to appoint a lieutenant governor, that{**65 AD3d at 347} his purported appointment of Mr. Ravitch cannot be reconciled with an unambiguous and contrary provision in the State Constitution, and that no considerations of the State's financial difficulties or of political strife in the Senate allow us to find authority for Mr. Ravitch's appointment where none exists".
In other words, the Appellate Division concluded that the rule of law prevails over arguments of expediency.
I find the reasoning of the Appellate Division (that I provide below) flawless:
"
Section 3 of article XIII of the State Constitution provides in pertinent part that "[t]he legislature shall provide for filling vacancies in office." Pursuant to that authority, the Legislature enacted Public Officers Law §§ 41, 42 and 43. Section 41 authorizes the Legislature to appoint a person "to fill" a vacancy in the office of attorney general or comptroller. Section 42 provides for the filling of vacancies in certain other offices, with a specific exception for the "offices of governor or lieutenant-governor" (Public Officers Law § 42 [1]).
The Governor here relies entirely on Public Officers Law § 43 which, as a catchall provision, reads in pertinent part: "If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." The plain language of this statute indicates that the vacancy in the elective office in question is to be "filled," not by a gubernatorial appointment, but "by an election," and that the Governor's appointee merely "execute[s] the duties [of the vacant office] until the vacancy [is] filled." Thus, Public Officers Law § 43 does not authorize the Governor to fill a vacancy, but only to appoint a person to execute the duties of the vacant office until the vacancy is filled by election. Public Officers Law § 43, therefore, provides no authority for the Governor's purported appointment of Mr. Ravitch to fill the office of lieutenant governor. Moreover, the statute cannot be constitutionally applied even to support an appointment of Mr. Ravitch to execute the duties of the office of lieutenant governor. [*4]
What did Lippman have to say to that?
Lippman claimed that, contrary to the opinion of the lower appellate court (and mind you, Lippman did not have that much of an experience as an appellate judge at that time at all, and was presiding over a case where his friend had an interest, which was clearly contrary to the rules of judicial ethics) Public Officers Law 43 was a "catchall provision" giving the Governor authority to fill the vacancy rather than to appoint a temporary person to execute the duties of the Lt. Governor without filling the vacancy that can be filled only by election.
The dissent in the case stated, at the very outset, the following:
" Pigott, J. (dissenting). [*8]Under the majority's rationale, the possibility exists that the citizens of this state will one day find themselves governed by a person who has never been subjected to scrutiny by the electorate, and who could in turn appoint his or her own unelected Lieutenant Governor. Because this is contrary to the text of the New York Constitution and affords Governors unprecedented power to appoint a successor, we respectfully dissent.{**13 NY3d at 154}".
I request to bear with me and at least scroll through the dissent.
These judges put this long and powerful dissent for a reason, protecting rights of the voters to be ruled by those they elect, not by those who usurp power.
===
QUOTE
I.
When then-Governor Eliot Spitzer resigned and Lieutenant Governor
David Paterson became our 55th Governor no one gave a thought or
harbored a suggestion that he had the ability to appoint a Lieutenant
Governor. This is not surprising since no Governor in the history of the
State had done so. But after 15 months marked by a deeply troubled
economy and a deadlock that paralyzed the State Senate, the Governor,
prompted perhaps by understandable frustration, attempted on July 8,
2009 to unilaterally fill the post. Shortly after the appointment, plaintiffs brought this action seeking judgment declaring that the Governor's action in appointing a Lieutenant Governor was unconstitutional. The Governor, as the majority notes, asserted authority to do so pursuant to section 43 of the Public Officers Law, a section referred to by all parties as a "catch-all provision." Until now, that provision had been used to fill vacancies in local offices but, in no instance, the second most important executive office in the state.
Supreme Court granted a preliminary injunction concluding, as relevant to this appeal, that the Senators "have alleged a usurpation of Senate power that gives rise to sufficient injury-in-fact falling within their zone of interest" and as such, they had standing to commence this action (25 Misc 3d 347, 359 [2009]). Addressing the likelihood of success on the merits, the court concluded that article IV, § 6 of the Constitution "strongly suggests that the office is to remain vacant until such time as a Governor is elected" and "[s]ince a Lieutenant Governor has never been appointed, this interpretation is consistent with historical practice." (Id.)
The court also reasoned that article XIII, § 3, which mandates the Legislature to fill "vacancies in office," did not apply to a vacancy in the office of Lieutenant Governor, because that constitutional provision permitted the appointee to serve only until the next election, while article IV, § 6 makes clear there can be no separate election for Lieutenant Governor. Therefore, since the Legislature is not empowered to fill the office of Lieutenant Governor under [*9]the Constitution, contrary to defendants' urging, section 43 of the Public Officers Law is not available for that purpose. As a result, the court concluded the Senators had established a likelihood of success on the merits and granted an injunction.
The Appellate Division affirmed, rejecting defendants' claim that Senator Skelos was without standing to bring the action,{**13 NY3d at 155} noting that the Lieutenant Governor has the ability to control debate in the Senate chamber and to cast a vote to break a tie on certain procedural matters (65 AD3d 339 [2009]). It concluded that the Governor simply did not have authority to appoint a Lieutenant Governor. That court too rejected the Governor's reliance on Public Officers Law § 43 and determined that no provision of the Constitution nor any statute provides for the filling of the office of Lieutenant Governor other than by election.
II.
Unlike the majority, we view standing as a threshold issue that must
be resolved and we determine that Senator Skelos established that he is a
proper party to pursue this claim. The test for determining a
litigant's standing is twofold. "First, a plaintiff must show 'injury in
fact,' meaning that plaintiff will actually be harmed by the challenged
. . . action. As the term itself implies, the injury must be more than
conjectural" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004], citing Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 [1991]). Second, the injury plaintiff asserts must fall within his or her zone of interest (Society of Plastics, 77 NY2d at 773). Our standing analysis begins—but does not end—with Silver v Pataki (96 NY2d 532 [2001]). In Silver, the Court held that Assembly Speaker Sheldon Silver—acting in his capacity as an individual legislator, and not as a legislative leader—had standing to pursue his claim that the Governor's exercise of line-item veto power exceeded the powers granted the executive in the State Constitution. The general rule is that an individual legislator can sue—on a vote nullification or usurpation of power theory—to vindicate a personal injury, although "lost political battle" claims are not cognizable.
Speaker Silver was deemed to have standing even though there were many other identifiable persons and organizations directly harmed by the exercise of the vetoes—such as any party who would have benefitted from the vetoed legislation (see Clinton v City of New York, 524 US 417 [1998] [New York City, health care providers and others who would have benefitted from vetoed legislation successfully challenged constitutional validity of President Clinton's exercise of the line-item veto]). Thus, the Court found standing in Silver even though a dismissal of Speaker Silver's complaint would not have erected an impenetrable barrier to judicial consideration of that controversy.{**13 NY3d at 156}
Although Senator Skelos' contention that the Governor has exceeded his constitutional authority is different from the constitutional argument presented in Silver, his [*10]assertion of standing in this case is similarly legitimate. The Silver Court recognized that an individual legislator could initiate a lawsuit challenging vote nullification or usurpation of power by the Governor in the budget process, expressly rejecting the notion that only a majority of the legislative house could do so. This case does not involve the budget process but it does involve alleged overreaching by the Governor in a manner that directly affects each sitting Senator. Here it is claimed that the Governor has without constitutional authority installed an unelected person to serve as president of the Senate and, by that appointment, this private citizen has gained the authority to restrict the speech of elected Senators. This allegation of harm is not institutional in nature but is personal to each Senator.
The Lieutenant Governor's only constitutional duties are to preside over the Senate and, on occasion, issue a casting vote. If elected Senators cannot bring suit to challenge the alleged placement of a so-called "interloper" as the presiding officer of the body in which they serve, we are hard-pressed to identify who would have standing to object to this appointment. Granted, although he has expressed no inclination to do so, the Attorney General could initiate a quo warranto proceeding—but this is because a statute specifically grants him that right, not because he has standing under our common-law jurisprudence. Where a claim is justiciable—and here no one asserts that the controversy involves a political question rendering it inappropriate for judicial review—we have not interpreted our standing rules so strictly that they erect an impenetrable barrier to suit (see Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327 [2005]; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 814 [2003]; Boryszewski v Brydges, 37 NY2d 361, 364 [1975]). But if we adopt the Governor's position, that is precisely what we would be doing—raising the specter that this very significant issue concerning the constitutional validity of the Governor's appointment would be unreviewable by the judicial branch. Although the majority has chosen not to decide the issue of standing, we think it important to articulate a resolution of the standing issue given the magnitude of this case.
We further reject defendants' contention that the controversy is not ripe for review because Ravitch has not yet presided over the Senate, restricted any Senator's speech, or issued a casting{**13 NY3d at 157} vote. This argument ignores the fact that Ravitch has been precluded from doing so, first by a temporary restraining order and, later, by the preliminary injunction issued by Supreme Court and affirmed by the Appellate Division. It would be ironic for this Court to dismiss a litigant's claim because, in initiating the lawsuit and obtaining preliminary relief, he was successful at postponing the imminent harm he is suing to prevent. In addition, it is alleged that the Governor's motivation in making the appointment was, in large part, to put Ravitch in a position to issue the tie-breaking vote to resolve the Senate leadership impasse—an allegation that is eminently plausible given the circumstances surrounding the appointment. This litigation—commenced soon after the appointment was made—was therefore not precipitous.
Moreover, since there appears to be no dispute that any ripeness problem would disappear the moment Ravitch presided over the Senate and ruled on any point of order, dismissing this action would only postpone a ruling on the merits in a situation where the public is manifestly best served by prompt resolution of an important constitutional issue. Nothing would be accomplished by burdening the public or the parties with further delay just to allow this inevitable scenario to play out. Nor do the parties urge us to do so.
III.
Arriving at the merits, we note that both sides concede that the
Constitution does not expressly accord the Governor the power to appoint
a Lieutenant Governor. Nor can the Constitution itself be read in such a
way as to permit the Governor to make an appointment to that office.
The Constitution does, however, provide a clear line of succession to
the office of Governor, the very purpose of article IV.
Article IV, § 6 provides that in the event of a vacancy in the offices of both Governor and Lieutenant Governor (a simultaneous vacancy): "the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected." If this situation arises, article IV, § 6 mandates that a prompt election be held by requiring that "a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant." Most definitely, the framers of the Constitution were intent on having the electorate promptly fill both vacancies.{**13 NY3d at 158}
Next, that section addresses a vacancy in the office of Lieutenant Governor only, while there is a sitting Governor:
"In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability."Thus, the drafters of the Constitution logically placed the duties of Lieutenant Governor in the hands of a duly elected state Senator—one who is elected president of that body by the entire Senate, representing all citizens of this state.
The majority errs in deciding that this constitutional mandate merely provides for a "caretaker" role by the temporary president for a limited interim period until the Lieutenant Governor's office is filled by the Governor under the Public Officers Law. The majority also errs in reading the Public Officers Law, which contains specific provisions for filling vacancies in the offices of Comptroller, Attorney General, and United States Senator, to let the Lieutenant Governor's office fall into a "catch-all" with all other elected officials in the state no matter how minor. A review of Public Officers Law §§ 41-43 makes the majority's misreading of them clear. Together, they provide a comprehensive mechanism for dealing with vacancies in nearly every office in the state—but not that of Governor or Lieutenant Governor, who are separately treated in article IV, § 6.
Public Officers Law § 41, enacted pursuant to an express grant of authority in article V, § 1 of the Constitution, provides for the filling of vacancies in the offices of Comptroller and Attorney General. Section 42 provides for the filling of vacancies in other elective offices, but expressly excludes the offices of Governor or Lieutenant Governor. Finally, section 43 addresses the filling of all "other vacancies" and provides: "If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election" (emphasis added).
When viewed in light of the constitutional construct of the executive office, its powers and duties, Public Officers Law § 43 cannot be construed to confer the right to fill a vacancy in the{**13 NY3d at 159} Lieutenant Governor's office. First, contrary to the majority's view, section 43 by its terms only permits the Governor to appoint someone to an office to "execute the duties" of that office until the office can be filled by an election for the remainder of the term. Yet article IV of the Constitution clearly provides that when there is a vacancy in the office of Lieutenant Governor, the duties of that office are assumed by the temporary president of the Senate—there is no language restricting the duration that the temporary president of the Senate fulfills those duties. This situation differs from the scenarios presented in cases like People ex rel. Smith v Fisher (24 Wend 215 [1840]) and People ex rel. Henderson v Snedeker (14 NY 52 [1856]), in which a deputy took over when an elected official such as a county clerk was unable to complete a term of office and the deputy was then properly replaced by a gubernatorial appointee. The statutes at issue in those cases made clear that the deputy was to perform the duties of the elected office only until someone else could be "elected or appointed" and therefore clearly indicated that the deputy's authority was intended to cease when the Governor appointed a replacement for the elected official. As such, the Court held that the deputy performed the duties of office only until the Governor appointed a replacement who, in turn, fulfilled the duties only until an election could be held.
In contrast, article IV, § 6 does not state that the temporary president of the Senate will fulfill the duties of the office of Lieutenant Governor only until someone else is appointed nor, unlike article V, § 1 (addressing the offices of Comptroller and Attorney General), does it specifically direct the Legislature to craft a procedure for filling a midterm vacancy in that office. Rather, the clause unqualifiedly states that the temporary president of the [*11]Senate is to perform the duties of the Lieutenant Governor "during such vacancy." Furthermore, article IV precludes a midterm election for the office of Lieutenant Governor because it requires the Governor and Lieutenant Governor to be jointly elected in quadrennial elections (unless there is a simultaneous vacancy in both offices [see art IV, §§ 1, 6]).
Because the Constitution, particularly article IV, § 6, instructs that the temporary president of the Senate, an elected official, is to "perform" the duties of Lieutenant Governor during a vacancy, it leaves no room for anyone else to "execute" the duties of that office under Public Officers Law § 43. In this regard, we note that neither this Court nor the Legislature has{**13 NY3d at 160} ever drawn a distinction between "executing" the duties of an office and "performing" those duties. The cases the defendants cite for this questionable distinction do not support it. Furthermore, there are numerous statutes that use words like "execute," "fulfill," "perform," "discharge," "act as" and the like to confer precisely the same authority.[FN1] Article IV, § 6 of the Constitution similarly contains synonyms that describe the inability of officers to act and the obligations that devolve on their successors, indicating that these officials "discharge" duties, "perform" duties or "act as" their predecessors—and it is evident that all of these mean the same thing. There is simply no evidence that the Legislature intended that Public Officers Law § 43 apply to the office of Lieutenant Governor when it adopted that provision. And if it did, the result would be a conflict. Contrary to the majority's view that constitutional provisions are to be "harmonized" with statutes, it is axiomatic that where there is an incompatibility between the Constitution and a statute, the Constitution governs and the statute bows.
Of equal importance, article XIII, § 3 limits the duration of any appointment under section 43 by directing that "no person appointed to fill a vacancy 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" (emphasis added).[FN2] [*12]Yet, article IV, § 1 {**13 NY3d at 161}mandates that the Governor and Lieutenant Governor run together and only on the quadrennial, thus barring the Lieutenant Governor from running for office separate from the Governor in a nonquadrennial year. These provisions, read together, can only be reasonably interpreted to mean that the drafters of the Constitution intended that a vacancy in the office of Lieutenant Governor remain unfilled until the next gubernatorial election, with the temporary president of the Senate performing the duties of Lieutenant Governor in the interim.
IV.
The construction of our Constitution over two centuries refutes the
majority's reading of it. This is not the first time that a vacancy in
the office of Lieutenant Governor has arisen. There have been at least
10 occasions since the first New York Constitution was adopted in 1777
when the position of Lieutenant Governor has become vacant,[FN3]
but no Governor has ever seen fit to assert that he had the power to
appoint a Lieutenant Governor to fill the vacancy. On two of those
occasions, there were midterm elections to fill the vacancies. But that
cannot occur under our current Constitution, because both the
Constitution and the Public Officers Law have [*13]since been amended in significant respects.[FN4]
The position of Lieutenant Governor was created in New York's first Constitution of 1777 (adopted before the United States Constitution), which provided for an election to fill a vacancy in that office in the event the Lieutenant Governor{**13 NY3d at 162} died, resigned or was removed from office (see Constitution of 1777 art XX). But that clause was removed in the 1821 Constitution and no Constitution since that time has specified any procedure for filling a Lieutenant Governor vacancy. In this respect, our State Constitution was similar to the Federal Constitution, which did not contain a procedure for filling a vacancy in the office of Vice President until the adoption of the 25th Amendment in 1967. Instead, the New York Constitution has spelled out a chain of succession in the event of the death or other inability of the Governor or Lieutenant Governor, currently codified in article IV, § 6. The Constitution and the statutes upon which the defendants rely have never been read to permit appointment of a Lieutenant Governor, even though there have been many opportunities for prior Governors to advance such a reading.
The decision in Matter of Ward v Curran (266 App Div 524 [3d Dept 1943], affd without op 291 NY 642 [1943])—which involved the eighth Lieutenant Governor vacancy in New York's history—held that the Constitution, as it was then worded, permitted an election to fill the vacancy, but it does not support the majority's view that such a vacancy can be filled by appointment. The controversy underlying Ward arose in July 1943 when Lieutenant Governor Thomas Wallace died, creating a vacancy in the office of Lieutenant Governor. Governor Thomas Dewey and Wallace had been elected the previous November on the Republican ticket. Albert Ward, the State Chair of the Democratic Party, brought a mandamus proceeding against the Secretary of State to compel an election to fill the office of Lieutenant Governor in the upcoming November 1943 election. Both Governor Dewey and Attorney General Nathaniel Goldstein took the position that such an election would be illegal as the Constitution required that the Governor and Lieutenant Governor be chosen at the same time and for the same term (the Constitution did not yet require that these offices be elected jointly by single vote). They further asserted that article III, § 9 of the Constitution—a provision addressing the powers of the Legislature—directed the Senate to "choose a temporary president to preside in case of the absence or impeachment of the lieutenant-governor." (266 App Div at 526.) They did not, however, rest their analysis [*14]on the predecessor to article IV, § 6 because, at that time, it did not contain any language indicating{**13 NY3d at 163} that the temporary president of the Senate assumed the powers of the Lieutenant Governor.[FN5]
In a divided decision, the Appellate Division directed the Secretary of State to conduct the election pursuant to the predecessor of Public Officers Law § 42. The majority reasoned that it was inappropriate for the person who fulfills the duties of Lieutenant Governor to be someone who was elected only by the voters of a single senatorial district. They emphasized: "It is a fundamental principle of our form of government that a vacancy in an elective office should be filled by election as soon as practicable after the vacancy occurs" (266 App Div at 526 [emphasis added]). The dissenter believed that such an election would be unconstitutional because article IV, § 1 contains the only provision authorizing an election for Governor or Lieutenant Governor and requires that such office be filled in quadrennial elections. Thus, he concluded that the office of Lieutenant Governor could not be filled at a general election that was not a quadrennial election. This Court affirmed without opinion (291 NY 642 [1943]).
Upset with this turn of events, Governor Dewey urged the Legislature to begin the process of amending the Constitution and to change Public Officers Law § 42 to preclude an election for the office of Lieutenant Governor (Message of Governor Thomas E. Dewey to the Legislature, Jan. 5, 1944, 1944 NY Legis Doc No. 1, at 17-18). The Legislature heeded the Governor's call on both counts. It immediately amended Public Officers Law § 42—the statute [*15]on which Ward had relied—so that it{**13 NY3d at 164} expressly excluded the Governor and Lieutenant Governor from its ambit (as it continues to do today) (see L 1944, ch 3). The Legislature also passed amendments to the New York Constitution that were ultimately adopted by vote of the People.
More specifically, article IV, § 6 was amended in 1945 to add a provision directly addressing what is to occur when there is a vacancy in the office of Lieutenant Governor alone.[FN6] This amendment was significant for several reasons. Whereas the 1938 version of this clause did not indicate that the temporary president of the Senate fulfills the duties of Lieutenant Governor during a vacancy in that office, the 1945 version expressly so provided. Furthermore, the 1945 version indicated precisely what was to occur when there was a vacancy in the office of Lieutenant Governor alone—"the temporary president . . . shall perform all the duties of [*16]lieutenant-governor . . . during such vacancy." The 1945 amendments also stated that the Lieutenant Governor can never be separately elected from the Governor. These constitutional amendments, combined with the{**13 NY3d at 165} legislative amendment to Public Officers Law § 42, overruled Ward.
In the years since 1945, other constitutional amendments have moved still further away from Ward's holding. In 1953, the Constitution was amended to require that the Governor and Lieutenant Governor be "chosen jointly, by the casting by each voter of a single vote applicable to both offices" (art IV, § 1), echoing another of Governor Dewey's recommendations. Additional clarification of the chain of succession occurred in 1949 and 1963 amendments.
Defendants and the majority use Ward as support for the conclusion that a vacancy in the office of Lieutenant Governor can be filled through gubernatorial appointment under Public Officers Law § 43. They contend that, unlike Public Officers Law § 42, section 43 was not amended in the wake of Ward to expressly exclude the office of Lieutenant Governor. But nothing in Ward suggests that section 43 ever applied to that office. Ward held that the Lieutenant Governor vacancy could be filled by election—not by gubernatorial appointment. In Ward, the Appellate Division majority determined that it would be inappropriate to allow the office of Lieutenant Governor to be filled by the temporary president of the Senate for the entire unexpired term because that legislative leader had been elected only by the voters of one district of the state. It seems highly unlikely that the Ward court would have endorsed the notion that a Lieutenant Governor could be appointed by a Governor with no input from the electorate and no vetting by the legislative branch of government.
In fact, shortly before the litigation, Attorney General Goldstein issued an opinion clarifying that such an appointment would be inconsistent with the constitutional and statutory scheme. Citing Public Officers Law § 43, the Attorney General observed:
"No one has ever claimed that this section conferred upon the Governor the power to appoint his own successor. Such a contention would lead to the anomalous result that a Governor by appointing a Lieutenant-Governor and then resigning could impose upon the people his own choice as their Governor" (1943 Ops Atty Gen 378, 382, available at 1943 WL 54210, *4).This point, which was repeated in the Attorney General's brief{**13 NY3d at 166} in Ward, was not disputed by the parties or the Appellate Division.
As we noted, the fact that no Governor has previously attempted to appoint a Lieutenant Governor, while significant, does not resolve the legal issue before us. But it does show a remarkable consensus that such an appointment was impermissible. This consensus may result in part from a similarity between our Constitution and the Federal Constitution, which lacked a procedure for filling a vacancy in the office of Vice President until a constitutional amendment was adopted in 1967. The 25th Amendment (§ 2) now provides: "Whenever there is a [*17]vacancy in the Office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." New York constitutional commentators and participants at constitutional conventions have examined whether it would be advisable to adopt a similar mechanism by which the Governor could fill a vacancy in the office of Lieutenant Governor by appointment. Proposals for constitutional amendments have been submitted over the years that would have authorized gubernatorial appointment with the advice and consent of the Senate (see Proposition No. 923, 8 Proceedings of the Constitutional Convention of the State of New York, June 12, 1967, at 606-608) or, comparable to the 25th Amendment, with confirmation by a majority vote of both houses of the Legislature (see 1985 Rep of NY Law Rev Commn, reprinted in 1985 McKinney's Session Laws of NY, at 2483, 2575). To date, none of these proposals has been acted upon.
Supporters of the proposed amendments, like the Governor and some of the amici curiae, make strong policy arguments in support of allowing the Governor to make an appointment to fill a vacancy in the office of Lieutenant Governor. But since our Constitution does not currently permit such a procedure, the constitutional amendment process is the only appropriate vehicle for such a change.
V.
The majority and defendants rely on decisions from other states to
support their arguments but the cases cited are not persuasive. The
constitutional provisions at issue in those cases were different from
New York clauses that guide our analysis, either because there was no
temporal provision that limited the duration that an appointee could
hold an office to a specific and{**13 NY3d at 167} ascertainable date (as there is in article XIII, § 3 of the New York Constitution) (see People ex rel. Lynch v Budd, 114 Cal 168, 45 P 1060 [1896]; State ex rel. Trauger v Nash, 66 Ohio St 612, 64 NE 558 [1902]; State ex rel. Weeks v Day, 14 Fla 9 [1871]; In re Advisory Opinion to the Governor,
688 A2d 288 [RI 1997]), or there was no clause directing that a
particular official was to fulfil the duties of Lieutenant Governor in
the event of a vacancy in that office alone (as there is in article IV, §
6 of the New York Constitution) (see Advisory Opinion to Governor, 217 So 2d 289 [Fla 1968]), or both provisions were absent (see State ex rel. Martin v Ekern,
228 Wis 645, 280 NW 393 [1938]). In any event, most of these cases were
subsequently overruled by constitutional amendment or legislative
enactment.
VI.
Despite our disagreement, we join the majority in acknowledging the
good faith and good intentions of all parties in this difficult and
important case. At the time the Governor named a Lieutenant Governor,
two Senators credibly claimed the position of temporary president of the
Senate. The resulting uncertainty over the temporary president's
identity created two practical problems. First, it clouded the line of
gubernatorial succession; and second, the absence [*18]of
an acknowledged presiding officer thwarted day-to-day business in the
Senate. While the amici's dire characterizations of this political
deadlock may be overstated, it is easy to understand why the Governor
felt impelled to act and has vigorously defended his position. But
neither the Governor nor this Court can amend the Constitution. Our
Constitution's provisions governing gubernatorial succession have been
scrutinized repeatedly over the past few decades, and have consistently
been adjudged adequate. We should adhere to the Constitution we have,
which simply does not authorize what the majority now sanctions.
Judges Ciparick, Read and Jones concur with Chief Judge Lippman; Judge Pigott dissents in a separate opinion in which Judges Graffeo and Smith concur.
Order reversed, etc.
.
Footnotes
Footnote 1: Senator Pedro Espada, Jr. initially joined Senator Skelos as a plaintiff in this action; however, Senator Espada did not file a brief on this appeal. We therefore refer to only one plaintiff for purposes of this opinion.
Footnote 2: As the Attorney General pointed out in his 1943 pre-Ward opinion, "there [was] no distinction in language between [section 43] and section 42 of the Public Officers Law" (1943 Ops Atty Gen 378, 382). And at the time of the post-Ward amendment to the Public Officers Law, the Legislature was well aware that section 42 had been held to apply to the office of Lieutenant Governor, even though the office was not specifically mentioned. The same language, appearing in section 43, could not in this Ward-defined context have been understood to exclude the office of Lieutenant Governor.
Footnote 3: The rationale for the post-Ward amendments was well summarized by Governor Dewey in his February 1953 address to the Assembly: "Executive responsibilities in our government are so interwoven that the election of a Governor and Lieutenant Governor politically opposed to each other involves serious problems. As a practical matter the Governor must encounter difficulty in leaving the State even for a short period and on pressing public business. This has created the greatest embarrassment in other states, to the damage of public confidence in government and the injury of the public interest.
"Even more important, there is a great advantage in being able to entrust many of the complex administrative tasks of the Governor to an able Lieutenant Governor. I have done this repeatedly and with notable benefit to the people of the State. This would not have been possible if the Lieutenant Governor was required, as a matter of party loyalty, to lead the minority party." (Message of the Governor In Relation to Proposed Constitutional Amendment For Joint Election of Governor and Lieutenant Governor, Feb. 9, 1953 [1953 NY Legis Doc No. 36, at 3].) Footnote 1: See e.g. County Law § 652 (1) (undersheriff shall "execute the duties of the office of sheriff" until a new sheriff is elected or appointed); County Law § 914 (deputy shall, "subject to the provisions of the public officers law, have all the powers and fulfill all the duties of the county clerk"); Town Law § 42 (until a successor is appointed, the deputy town supervisor shall "perform all of the duties of the supervisor"); Second Class Cities Law § 62 (deputy city comptroller "shall discharge the duties of the office" in the event of a vacancy). Footnote 2: If article XIII, § 3 is applied to a vacancy in the office of Lieutenant Governor under the facts presented here, since the vacancy occurred on March 17, 2008, this would mean that a midterm election would have had to be held in November 2008 (the first "annual election after the happening of the vacancy") and any appointee—who would have had to be chosen by the Governor before that time—could serve only until the winner of that midterm election took office at "the commencement of the [next] political year," which would have been January 1, 2009 (see art XIII, § 4). Such a midterm election is expressly precluded under several provisions of the Constitution (see art IV, §§ 1, 6) and, in any event, there was no appointment in 2008. Defendants argue that the time frames in article XIII, § 3 have not been strictly applied but, even reading some flexibility into the provision (and our precedent has not clearly done so), the fact remains that the clause requires a prompt election to replace an appointee and this must occur as soon as possible after the vacancy arises. Certainly, it does not authorize a long-term appointment to fulfill a complete unexpired term. Footnote 3: The vacancies occurred in 1811, 1828, 1829, 1847, 1885, 1910, 1913, 1943, 1973 and 1985. Six occurred as a result of the succession of the Lieutenant Governor to the office of Governor. The remaining four stemmed from either the death or resignation of the Lieutenant Governor. The most recent vacancies occurred in December 1973 when Lieutenant Governor Malcolm Wilson succeeded to the Governorship upon the resignation of Nelson Rockefeller (Senator Anderson, temporary president of the Senate at the time, fulfilled the duties until the end of the term) and in February 1985 when Lieutenant Governor Alfred DelBello resigned (again, Senator Anderson fulfilled the duties until the end of the term). Footnote 4: The first of the two elections to fill Lieutenant Governor vacancies occurred in 1847 as a result of a special statute passed by the Legislature (see L 1847, ch 303). The constitutional validity of that statute was never challenged. The second such election resulted from Matter of Ward v Curran (266 App Div 524 [3d Dept 1943], affd without op 291 NY 642 [1943]). Footnote 5: The 1938 version of article IV, § 6 that was in effect when Ward was decided read as follows:
"The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. He shall be president of the senate, but shall have only a casting vote therein. If the office of governor become vacant and there be no lieutenant-governor, such vacancy shall be filled for the remainder of the term at the next general election happening not less than three months after such vacancy occurs; and in such case, until the vacancy be filled by election, or in case the lieutenant-governor be under impeachment or unable to discharge the powers and duties of the office of governor or shall be absent from the state, the temporary president of the senate shall act as governor during such inability, absence or the pendency of such impeachment. If the temporary president of the senate shall be unable to discharge the powers and duties of the office of governor or be absent from the state, the speaker of the assembly shall act as governor during such inability or absence. The lieutenant-governor shall receive for his services an annual salary of ten thousand dollars." Footnote 6: The 1945 version of article IV, § 6 provided:
"The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. He shall be president of the senate, but shall have only a casting vote therein. The lieutenant-governor shall receive for his services an annual salary of ten thousand dollars.
"If the office of governor become vacant and there be no lieutenant-governor, the offices of governor and lieutenant-governor shall be filled for the remainder of the terms at the next general election happening not less than three months after the vacancy in the office of governor occurs. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor. Until the vacancies in the offices of the governor and lieutenant-governor be filled by election, the temporary president of the senate then in office or his successor as such temporary president shall perform all the duties of lieutenant-governor and shall act as governor.
"If the office of lieutenant-governor alone be vacant, or in case the lieutenant-governor be under impeachment, unable to discharge the powers and duties of the office of governor or shall be absent from the state, the temporary president of the senate then in office or his successor as such temporary president shall perform all the duties of lieutenant-governor, including the duty of acting as governor when necessary, during such vacancy, inability, absence or the pendency of such impeachment.
"If . . . the temporary president of the senate . . . be unable to discharge the powers and duties of such office or be absent from the state, the speaker of the assembly shall act as governor during such inability or absence" (emphasis added to identify new language).
UNQUOTE
There were voices raised about impropriety of what Lippman did for his buddy Silver in his decision in Skelos v. Paterson.
Yet, they remained not heard, and Silver continued to "serve" New Yorkers for 5 more years - while Lippman continues to "serve" until now, while it is apparent that he has no concept of judicial ethics when his friends are involved.
I urge the federal investigators to review the case Skelos v. Patterson as a "quid pro quo" of Judge Lippman to his friend Sheldon Silver.
Judge Lippman showed through that decision that he will not stop short of amending the New York State Constitution when his friend wants a certain person appointed to a certain position.
3 years down the road, Sheldon Silver's law firm pitched $50,000 to amend the NYS State Constitution so that Judge Lippman could receive more money and wield his power for 10 more years.
Maybe, it's enough of quid pro quos? Maybe, the feds must finally notice corruption in the judiciary.
It will not be an overstatement to say that in New York government, the fish rots from the head down, including the judiciary.
And it stinks.
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