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Skelos v. David Paterson

September 22, 2009


The opinion of the court was delivered by: Lippman, Chief Judge

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue on this appeal is whether the Governor of the State of New York has the authority to fill a vacancy in the office of Lieutenant-Governor by appointment. We now hold that he does.


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 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.*fn1 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, and the Appellate Division, Second Department, affirmed. Thus, Mr. Ravitch has, to date, not presided over the Senate.

In assessing the likelihood of plaintiff's success upon the merits (see Doe v Axelrod, 73 NY2d 748, 750 [1988]), the Appellate Division held that "the Governor's purported appointment of Mr. Ravitch was unlawful because no provision of the Constitution or of any statute provides for the filling of a vacancy in the office of lieutenant-governor other than by election, and only the temporary president of the Senate is authorized to perform the duties of that office during the period of the vacancy" (__ AD3d __, 2009 NY Slip Op 6265, *5 [2d Dept 2009]). The Appellate Division sua sponte granted the Governor leave to appeal from its order, and certified a question to this Court. We now reverse.


The Governor has raised a threshold question as to Senator Skelos's standing to sue in light of the stringent criteria for legislator standing that we adopted in Silver v Pataki (96 NY2d 532, 539-540 [2001]). The parties do not dispute, however, that the public's interest is best served by resolving the constitutional issue presented by the Governor's action as expeditiously as possible. Accordingly, assuming, without deciding, that Senator Skelos presently has standing to sue the Governor, we now proceed to the merits (see Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512, 516 [2001]; Babigian v Wachtler, 69 NY2d 1012, 1013 [1987]; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 951 [1985]).


Our State Constitution specifies that "[t]he legislature shall provide for filling vacancies in office" (NY Const, art XIII, § 3 [emphasis supplied]), and expressly contemplates that vacancies in elective office may be filled by appointment (see id.). In pursuance of the constitutional mandate imposed by article XIII, § 3, the Legislature has enacted three comprehensive and complementary provisions, i.e., Public Officers Law §§ 41, 42 and 43. The first of these, titled "Vacancies filled by legislature," (emphasis supplied) prescribes the means by which vacancies in the offices of State Attorney General and Comptroller are to be filled. The second, titled "Filling vacancies in elective offices" (emphasis supplied) generally requires that such vacancies occurring before September 20th of any year in office be filled by means of election at the next general election, but, in the case of a vacancy in the office of United States Senator, requires, in certain circumstances, a temporary appointment by the governor "to fill such vacancy" (see Public Officers Law § 42 [4-a]). Notably, this section specifically excepts from its scope the elective offices of Governor and Lieutenant-Governor. The last of these vacancy-filling provisions, section 43, the one upon which the Governor relied in his appointment of Mr. Ravitch, titled "Filling other vacancies" (emphasis supplied), is plainly intended as a catch-all to complete the Legislature's satisfaction of the mandate of article XIII, § 3. Unlike its neighboring provision, section 42, section 43 does not specifically exclude any office from its application, but rather 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 supplied).

It is not disputed that when Governor Spitzer resigned in March 2008, then-Lieutenant-Governor Paterson became Governor for the remainder of Governor Spitzer's term (see NY Const, art IV, § 5). Nor can it be reasonably disputed that when Lieutenant-Governor Paterson became Governor, he ceased being Lieutenant-Governor, leaving a vacancy in that office. The first condition of the statute's applicability was thus met.

The second condition of section 43 -- that there be no provision of law (apart from section 43) for filling the vacancy -- was also satisfied. The only other provision of law bearing upon how a vacancy in the office of Lieutenant-Governor alone is to be dealt with is article IV, § 6 of the State Constitution, but its direction that "the temporary president of the senate shall perform all the duties of lieutenant-governor" applies only "during [the] vacancy or inability" and thus cannot fill or end the vacancy. Plaintiff does not appear to contend otherwise; indeed, the central contention of plaintiff's argument is that the Constitution requires that a vacancy in the office of Lieutenant-Governor be preserved until the next quadrennial election.

An appointment under Public Officers Law § 43, in contrast to the devolution mandated by article IV, § 6, effectively fills the office in accordance with the command of article XIII, § 3; the article IV, § 6 devolution, although plainly necessary and useful to assure continuity of service in the short term, can at best provide only stop gap coverage of the function of the Lieutenant-Governor. Properly understood, then, the two provisions -- article IV, § 6 and Public Officers Law § 43 -- are complementary rather than duplicative and, accordingly, article IV, § 6 should not be construed, as it was by the Appellate Division, as a limitation upon gubernatorial appointment pursuant to Public Officers Law § 43. Article IV, § 6 merely states what is to occur while there is a vacancy; it does not, and cannot, consistent with the command of article XIII, § 3, be understood to state that the vacancy may not be filled.

The dissent places singular importance upon the apparent equivalence of the operative verbs in each of the provisions at issue -- "execute" in Public Officers Law § 43 and "perform" in article IV, § 6 -- arguing that the provisions must be understood as duplicative, and, accordingly, that neither provision may be applied to fill the office of Lieutenant-Governor. But, a correct understanding of what the provisions at issue are intended to accomplish does not turn on whether or not these expressions are themselves semantically equivalent. When understood in context, each expression refers to a materially different assumption of authority: the assumption under section 43 is plenary, in accordance with the mandate of article XIII, § 3 that vacancies be filled, but that occurring pursuant to article IV, § 6, concededly, is not.

Nor does article XIII, § 3's proviso 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" prevent the Governor from appointing a Lieutenant-Governor. The intent of the constitutional limitation is clear; namely, to assure that appointments to elective offices extend no longer than is reasonably necessary to fill such offices by election. Where, as here, an office may not legally appear on the ballot except quadrennially (see NY Const, art IV, §§ 1, 6), and there will be a lengthy period before the next election for the office may be held, plaintiff's reading of the durational limitation at issue would result in an extended vacancy running the balance of an elective term. This appears to be fundamentally incompatible with the main object of article XIII, § 3, expressed unequivocally in its first clause, which, of course, is to assure that vacancies are filled.

We have never interpreted article XIII, § 3 to impose the requirement that plaintiff finds in it. Rather, we have held that the provision demands only that "when a vacancy in elective office occurs, the vacancy must be filled by election in the shortest space of time reasonably possible" (Matter of Roher v Dinkins, 32 NY2d 180, 188 [1973]; see also Matter of Mitchell v Boyle, 219 NY 242, 248 [1916] [emphasis supplied]). Other states have dealt with the issue of measuring the permissible length of an appointment to an elective office similarly, holding that when the length of the appointive term is tied to the "next election" or the "first proper election" subsequent to the vacancy, what is meant is the next election at which the office may be legally filled (see People ex rel. Lynch v Budd, 114 Cal 168, 171, 45 P 1060, 1061 [1896]; State ex rel. Trauger v Nash, 66 Ohio St 612, 620-621, 64 NE 558, 560 [1902]).

We also reject plaintiff's contention that article XIII must be read to forbid the appointment of a Lieutenant-Governor so as to vindicate the elective principle. While there can be no quarrel with the proposition that, generally, election must be the preferred means of filling vacancies in elective office, it does not follow that the elective principle is preeminent when it comes to filling a vacancy in the office of Lieutenant-Governor.

We, of course, were completely in agreement with this contention when, in Matter of Ward v Curran (291 NY 642 [1943], affg 266 App Div 524 [3d Dept 1943]) we unanimously affirmed a decision of the Appellate Division holding that, pursuant to article XIII of the Constitution and the then-current version of Public Officers Law § 42, a vacancy in the office of Lieutenant-Governor was to be filled at the next annual election subsequent to the vacancy. Our determination, however, engendered dismay in the executive branch because it raised a real possibility that the offices of Governor and Lieutenant-Governor would be filled by individuals from opposing parties with incompatible political and policy agendas. As a consequence of our decision in Ward, Governor Dewey entreated the Legislature to amend the law, and the Legislature responded, specifically excepting the offices of Governor and Lieutenant-Governor from the reach of Public Officers Law § 42 and its mandate that vacancies in elective office be filled by election. Subsequent constitutional amendments, requiring that the Governor and Lieutenant-Governor be elected together quadrennially and by a single ballot (see NY Const, art IV, §§ 1, 6), definitively eliminated any residual possibility that the executive branch would be split between members of opposing parties and, equally definitively, eliminated any possibility that a vacancy in the office of Lieutenant-Governor might be separately filled by election in a non-quadrennial year.

The elective principle, upheld by the judiciary in Ward, was thus legislatively subordinated to assure the structural integrity and efficacy of the executive branch and has remained so ever since. If it is to be restored to primacy in filling a non-quadrennial vacancy in the office of Lieutenant-Governor, that is a matter for constitutional amendment.

That election has been deemed impermissible as a means of filling a mid-term vacancy in the Lieutenant-Governorship does not, however, mean that the vacancy may not be filled. Indeed, in amending the Public Officers Law to remove the office of Lieutenant-Governor from the election mandate of Public Officers Law § 42, the Legislature did not alter section 43, which, in the aftermath of Ward is logically understood as applying to a vacancy in the Lieutenant-Governorship.*fn2 A conclusion that naturally follows this pairing of action and inaction is that the Legislature, while desirous of eliminating the problematic prospect of a divided executive, fully intended that a vacancy in the office would be filled in accordance with the mandate of article XIII, ยง 3, and that it would be filled by appointment pursuant to section 43. Filling the office by gubernatorial appointment is entirely consonant with the purpose of the post-Ward legislative and constitutional amendments, whereas requiring that the office be left vacant risked a scenario of the sort that the Legislature at Governor Dewey's behest sought to avoid ...

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