Skelos v. Paterson, 13 N.Y.3d 141 (2009)

Under New York law, the Governor has the authority to appoint a Lieutenant Governor to fill a vacancy in that office pursuant to Public Officers Law § 43, notwithstanding Article IV, § 6 of the New York Constitution, which provides for the temporary president of the senate to perform the duties of the Lieutenant Governor during a vacancy.

Summary

Following the resignation of Governor Eliot Spitzer and the succession of Lieutenant Governor David Paterson to the governorship, a vacancy arose in the office of Lieutenant Governor. Governor Paterson appointed Richard Ravitch to fill this vacancy, citing Public Officers Law § 43. Senator Dean Skelos challenged the appointment’s constitutionality. The New York Court of Appeals held that the Governor did have the authority to make the appointment. The Court reasoned that Article XIII, § 3 of the New York Constitution mandates the legislature provide for filling vacancies in office and that Public Officers Law § 43 serves as a catch-all provision to fulfill this mandate, applicable when no other specific law addresses the vacancy. This interpretation gives effect to the constitutional mandate to fill vacancies.

Facts

Eliot Spitzer and David Paterson were elected Governor and Lieutenant Governor in 2006, respectively.
In March 2008, Governor Spitzer resigned, and Lieutenant Governor Paterson became Governor, creating a vacancy in the Lieutenant Governor’s office.
In July 2009, with the State Senate evenly split, Governor Paterson appointed Richard Ravitch as Lieutenant Governor, relying on Public Officers Law § 43.

Procedural History

Senator Skelos sued for a declaratory judgment that the appointment was unconstitutional and sought an injunction to prevent Ravitch from acting as Lieutenant Governor.
The Supreme Court, Nassau County, granted a preliminary injunction against Ravitch.
The Appellate Division, Second Department, affirmed, holding that no provision allowed for filling the vacancy except by election and that the temporary president of the Senate was authorized to perform the duties during the vacancy.
The Appellate Division granted the Governor leave to appeal to the Court of Appeals.

Issue(s)

Whether the Governor of New York has the authority to fill a vacancy in the office of Lieutenant Governor by appointment pursuant to Public Officers Law § 43, given the constitutional provision in Article IV, § 6 that the temporary president of the Senate shall perform the duties of the Lieutenant Governor during a vacancy.

Holding

Yes, because Public Officers Law § 43 serves as a catch-all provision to effectuate the constitutional mandate of Article XIII, § 3 that the legislature provide for the filling of vacancies in office, and Article IV, § 6 does not preclude the Governor from filling the vacancy by appointment.

Court’s Reasoning

The Court of Appeals reasoned that Article XIII, § 3 of the New York Constitution mandates that the legislature provide for filling vacancies in office. Public Officers Law §§ 41, 42, and 43 are complementary provisions enacted to fulfill this mandate.
Section 43, titled “Filling other vacancies,” is a catch-all provision intended to complete the legislature’s satisfaction of Article XIII, § 3.
Article IV, § 6, which directs that the temporary president of the Senate perform the duties of the Lieutenant Governor during a vacancy, only provides stopgap coverage and does not fill the vacancy as required by Article XIII, § 3.
The Court distinguished between “execute” (in Public Officers Law § 43) and “perform” (in Article IV, § 6), stating that the assumption of authority under § 43 is plenary, while that under Article IV, § 6 is not.
The Court also addressed the concern that an unelected individual might occupy the state’s highest office but noted that rules of succession inevitably compromise elective principles at some stage.
Quoting Matter of Roher v. Dinkins, 32 NY2d 180, 188 (1973), the court stated that a vacancy “must be filled by election in the shortest space of time reasonably possible.”
The court noted that after a prior decision, Matter of Ward v. Curran, 291 NY 642 (1943), which held that a vacancy in the office of Lieutenant Governor was to be filled at the next annual election subsequent to the vacancy, the legislature amended the law to specifically exclude the offices of Governor and Lieutenant Governor from the reach of Public Officers Law § 42, and the elective principle was legislatively subordinated to assure the structural integrity and efficacy of the executive branch.
The Court concluded that the Legislature, by not altering section 43 when amending Public Officers Law § 42 after Ward, intended that a vacancy in the Lieutenant Governorship be filled by appointment pursuant to section 43.