As most New York-based readers of the New York Court Watcher surely know, the state's highest court, the Court of Appeals, ruled today that Democratic Governor David Paterson did have the legal power to appoint a Lieutenant Governor.
A vacancy in the office of Lieutenant Governor resulted last year when Paterson was elevated from that office to become Governor upon the resignation of former Governor Eliot Spitzer. Paterson appointed Richard Ravitch earlier this year to fill that vacancy. His authority to do so, however, was questioned by politicians, lawyers, academics, and papers around the state. The case just decided by the Court of Appeals was brought against Paterson by leading Republican State Senator Dean Skelos.
The high court's decision was as close as it could be: 4 to 3. Notably--and no doubt curiously, even suspiciously to some--the voting was almost entirely according to political party lines. All of the court's judges who were appointed by a Democratic Governor sided with Paterson. Chief Judge Jonathan Lippman (appointed by Paterson himself), and Judges Carmen Ciparick (Mario Cuomo) and Theodore Jones (Eliot Spitzer). Equally notable--and curious, even suspicious to some--3 of the 4 Republican appointees voted against the Governor, siding with the Republican challenger. Judges Victoria Graffeo, Robert Smith, and Eugene Pigott (all appointed by George Pataki). The remaining Judge, Republican appointee Susan Read (Pataki), was the only one among the court's 7 members who, so to speak, crossed party lines. It was her vote, joining the 3 Democratic appointees, that gave Democratic Paterson his court victory.
Most of the votes seemed predictable at the oral arguments. To be sure, oral arguments--the questions asked by the individual Judges--can be quite misleading in determining how the judges will ultimately vote. But in some cases, and this seemed to be one, judges do show their hands.
For one thing, it did seem pretty clear that the court as a whole was much more supportive of the Governor's position than the 2 lower courts had been. The trial court had ruled against the Governor, and the Appellate Division, New York's intermediate appeals court, was unanimous in ruling the same way. By contrast, at oral arguments at the Court of Appeals, at least some of the Judges seemed very sympathetic to the Governor's position.
Lippman and Ciparick seemed strongly in the Governor's corner. Lippman's questions indicated that he found nothing ambiguous about the statutory grant of a general gubernatorial appointment authority to fill vacancies (Public Officer Law sec. 43.), and that he believed that any perceived inconsistencies with other statutory and constitutional provisions could readily be reconciled--"harmonized", as he put it. Ciparick's questions indicated that the general appointment authority made perfect sense as a way to fill vacancies until the next gubernatorial election.
Jones, who I don't think asked a question of the Governor's lawyer, made clear to the lawyer for opposing side that he wasn't at all convinced that the Republican Senator had any right even to bring the case--i.e., standing. [IAE, Jones's voting record certainly suggests that he would likely share the views of the other liberal Democratic Judges. Also, as the only African-American Judge on the court, it would hardly be surprising if he were sympathetic to the state's beleaguered first African-American Governor. But, you say, "Judges shouldn't...." Yeah, yeah, yeah. But like the rest of humanity, they do.] So those 3 votes seemed pretty good bets for the Governor.
On the other side, Graffeo and Smith seemed just as strongly opposed to the Governor's position. Graffeo made clear that she was worried about possible partisan abuses of the gubernatorial appointment power. E.g., unelected and unelectable politicians could become Governor through a manipulative scheme of appointments and resignations. [And, let's just see if Paterson ends up resigning to accept a federal appointment and the entirely unelected Ravitch becomes Governor. Some are suggesting that this is exactly what has been contemplated by Democratic leaders.] As for Smith, he was extremely skeptical that a gubernatorial power to appoint a Lieutenant Governor was even intended, especially since no Governor had ever sought to exercise such a power before, despite previous vacancies in the office.
The 2 question marks were Republican appointees Read and Pigott. Read's voting record certainly suggested that she would likely vote with the other Republican appointees--Graffeo and Smith. But she asked few questions and gave little indication of her views on the merits of the case. The only indication she gave was that--like Jones and, perhaps, others on the court--she had serious doubts that the Republican Senator even had standing. So her voting with the Democratic appointees to make a majority is a bit of a surprise, but not a shock given her misgivings about standing.
Pigott is much less ideologically predictable than most of the other Judges. It cannot usually be assumed that he is more likely than not to vote with the other Republican appointees. Additionally, at oral argument, he gave no indication that he was skeptical of the argument made on behalf of the Governor. His questions to the other side, however, did seem to indicate serious doubts about the proposition that the Governor could not fill the vacancy and, consequently, that there could be no settled replacement for Lieutenant Governor until the next quadrennial gubernatorial election. It certainly appeared [at least to me and others with whom I shared notes] that Pigott was leaning towards the Governor's position. His vote, against the Governor's claimed appointment power--indeed, his writing the dissent in the case--is the only real surprise following oral arguments.
[Let me confess. If I had wagered on the outcome of the case, I would have correctly bet on a 4 to 3 vote. BUT, I would have gotten Read and Pigott reversed.]
As for the substantive merits of the case, a few comments. Each side claimed that the issue was clear. That is, they each claimed that their position was clearly correct, and that the other side's position was clearly wrong. Well, both sides might think they were--and still are--clearly right, but the case did not seem clear to me at all.
For what it's worth, this is my take. If the issue in this case is approached like a lawyer or a judge typically approaches an issue--i.e., legalistically--then I think you get one answer. If the issue is approached like a political scientist or historian would approach it, then I think you get the other.
Legalistically, looking at the text of the statutory provision in question (POL 43), the Governor has the general power to fill a vacancy in any elective office by appointment. Beyond that, there is nothing in that statute, or in any of the other relevant statutes or state constitutional provisions, that clearly and expressly states that such a gubernatorial appointment power does not apply to the office of Lieutenant Governor.
Yes, an argument--even a strong one--can be made that the implications of the statutory and constitutional schemes are that the office of Lieutenant Governor is not to be subject to the general gubernatorial appointment power. (More about that later.) But nothing clearly or explicitly denies that power. And the judiciary usually defers to what the Chief Executive does--just like it usually defers to what the other co-equal branch, the legislature, does--unless it's clear that what's been done is illegal or unconstitutional. So the Judiciary defers to the Governor, absent some clear prohibition to the contrary. So the Governor wins. This is how the majority resolved the issue.
A political scientist or historian would take a different approach. Text and what is explicit is not nearly as accurate or as important as the implications for government and the historical context. When viewed in those perspectives, the much stronger argument is that the constitutional scheme was most likely intended to insure that the office of Lieutenant Governor would be treated differently than other offices. A vacancy was to be filled only in the next gubernatorial election--i.e., with the Governor and Lieutenant Governor running together--and that, in the interim, the president pro tem of the Senate would fill in. Period. The use of the general gubernatorial appointment power is certainly inconsistent with that scheme. And that is how the 3 dissenters saw it.
So the 4-3 majority adopted the more "legalistic" view of the statutory and constitutional texts. As to the more political sciencey and historian-like view of the overall constitutional scheme, the majority responded, in effect, "But the texts of the statutory and constitutional provisions do not explicitly make a Lieutenant Governor exception to the Governor's general appointment power; nor do those texts necessarily preclude the exercise of that appointment power to fill the vacancy till the next gubernatorial election."
Yes, there are other details and other technicalities in the arguments presented by the lawyers at oral argument and in the briefs. But that's the basic outline, and that's a distillation of the court's decision.
As for my own view of the merits--again, for whatever it's worth--let me start by repeating that I think the case was a close one. I think the court could legitimately have decided either way. But ultimately, I do think one view of the issue is stronger than the other. Following oral argument, I was persuaded that the Governor had the better position. No doubt, I was greatly influenced by Kathleen Sullivan--former Dean of Stanford Law School, eminent constitutional law scholar, someone who would have been an extraordinary choice for President Obama to nominate for the Supreme Court. She clearly, concisely and compellingly laid out for the court how the general gubernatorial appointment power exercised to fill the office of Lieutenant Governor made sense in the state constitutional and statutory scheme--no, how it was a virtually essential component of that scheme.
However, if I were on the court, I ultimately would have voted the other way. That is, with the dissenters. (Who, if I were on the court, might then have had the votes to be the majority!) After reading the 2 opinions circulated at the court--the opinion by Lippman that did become the majority and the opinion by Pigott that did become the dissent--I would have joined Pigott.
Both opinions are quite good, btw. They are of the type that each one is thoroughly persuasive when read alone. But I would ultimately have sided with the view of the dissent, that the gubernatorial appointment of a Lieutenant Governor is inconsistent with the scheme that seems almost surely to have been the underlying contemplation of the relevant constitutional provisions. This is not to say that, as a pure textual matter, the appointment power is explicitly denied or otherwise necessarily irreconcilable with the relevant constitutional provisions. But that the better, more sensible and most likely intended construction of those provisions is a scheme that limits the selection of a Lieutenant Governor to the quadrennial gubernatorial elections, and that the president pro tem of the Senate--and only that official--serves in the interim. [This argument was spelled out very convincingly in the amicus brief prepared by my Albany Law colleague Michael Hutter, Canisus College professor and state constitutional scholar Peter Galie, New Paltz dean, professor, and state government scholar Gerald Benjamin, and former Lieutenant Governor Stanley Lundine.]
But that's not how the court ruled. I ultimately do disagree with the court, but I would be hard pressed to claim that the court's view is clearly wrong, or a disaster, or driven solely by partisan politics unsupported by a good faith view of the law. There will surely be some who will contend that. And some of them will contend that in good faith and after much consideration. But like the issue itself in this case, I just don't see that that's clear at all.
And, BTW, this was another big-case victory for the new Chief Judge. More about his brief tenure thus far in shortly forthcoming posts on the New York Court Watcher.
