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Automatic Lieutenant Gubernatorial Succession

Automatic Lieutenant Gubernatorial Succession

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Published by: JimmyVielkind on Jun 07, 2012
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This article has been accepted for publication in the State ConstitutionalCommentary issue of the
 Albany Law Review
forthcoming in 2013
.
 
 Automatic Lieutenant Gubernatorial Succession: Preventing LegislativeGridlock without Sacrificing the Elective Principle
 Patrick A. Woods
*
 
I.
 
Introduction
In June of 2009 the government of the State of New York came to a shudderinghalt.
1
Two candidates for Temporary President of the senate, the office thatrepresents party control, commanded equal votes for the position.
2
The tie-breakingvote would ordinarily have been cast by the lieutenant-governor but, due to theresignation of Eliot Spitzer and elevation of David Paterson, that position wasvacant.
3
The uncertainty as to who held the position paralyzed senate operationsand left open a very real question as to who would succeed to the governorshipshould something happen to then governor Paterson.
4
The delay caused by theimpasse cost state and local governments $2.9 billion.
5
The deadlock promptedPaterson to appoint Richard Ravich to lieutenant-governor, marking the first timein New York history that any governor had attempted to fill that post despite
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*
Patrick A. Woods is a J.D. Candidate at Albany Law School, class of 2012. He is the 2011–2012Editor-in-Chief of the
 Albany Law Review
. He received his B.A. in philosophy from State Universityof New York at Stony Brook in 2005 and is a graduate of the Bronx High School of Science.
1
Eric Lane & Laura Seago,
 Albany’s Dysfunction Denies Due Process
, 30 P
 ACE
L.
 
R
EV
. 965, 965(2010) [hereinafter “
 Albany’s Dysfunction
”] (“The coup that shut down the New York state Senate forover a month last summer brought the State legislature’s dysfunction to the forefront of publicconsciousness.”)
2
Skelos v. Patterson, 915 N.E.2d 1141, 1142 (N.Y. 2009).
3
 
Id.
4
Jeremy W. Peters,
Who Would Lead New York if Paterson Left
?
Who Knows?
, N.Y.
 
T
IMES
(July 6,2009), http://www.nytimes.com/2009/07/07/nyregion/07succession.html?scp=2&sq=%22Senate%20impasse% 20in%20albany%22&st=cse.
5
Richard Briffault, Skelos v. Paterson:
The Surprisingly Strong Case for The Governor’s Surprising  Power to Appoint a Lieutenant-governor
, 73 Alb. L. Rev. 675, 680 (2010) (citing Press Release, Officeof the New York State Comptroller, Cost of State Senate Inaction to New Yorkers (July 2, 2009),http://www.osc.state.ny.us/press /releases/jul09/070209factsheet.htm.).
 
76 A 
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.
 
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2
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28
numerous historical vacancies.
6
Litigation as to the propriety of the appointmentimmediately ensued, eventually resulting in the New York Court of Appealsupholding the legitimacy of the appointment.
7
Had the situation not resolved itself politically on the day of the appointment,
8
the deadlock could have continued formore than an additional two months during the pendency of the appeal.
9
  Although the crisis was in no small measure a result of the fact that “New York’slegislature was, by far, the most dysfunctional legislature in the nation,”
10
theimpasse could have been solved in a day had there been an effective constitutionalmechanism for succession to the office lieutenant-governor in the case of a vacancy.The absence of such a mechanism led to unprecedented gubernatorial action andthe New York Court of Appeals’ authorization, by a slim majority and in a decisionthat has been heavily criticized,
11
of Ravich’s appointment via a statutory catch-allprovision typically used only for minor officials.
12
That decision also left in placemany of the structural problems that allowed the crisis to come to a head in the firstplace, such as when a replacement lieutenant-governor must be appointed.This article is an attempt to find a solution to the problem of lieutenantgubernatorial succession in New York. Part II will discuss the problems created by

6
 
Id
. at 676 (citing
Skelos
, 915 N.E.2d at 1152 (Pigott, J. dissenting)).
7
 
Id.
at 681–82.
8
Danny Hakim,
 Albany Impasse Ends as Defector Rejoins Caucus
, N.Y.
 
T
IMES
(July 6, 2009),http://www.nytimes.com/2009/07/10/nyregion/10albany.html
9
Briffault,
supra
note 5, at 681–82 (summarizing the procedural history of the
Skelos
case).
10
 
 Albany’s Dysfunction
,
supra
note 1, at 966 (citations omitted).
11
 
See, e.g.
,
id.
at 984 (describing the
Skelos
decision as being on “thin law”).
12
 
Skelos
, 91 N.E.2d at 1146–47 (Lippman, C.J.) (upholding the appointment through the use of New York Public Officers Law § 43);
id
. at 1147, (Pigott, J. dissenting) “Until now [Public Officers Law §43] had been used to fill vacancies in local offices but, in no instance, the second most importantexecutive office in the state.”).
 
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allowing appointment pursuant to Public Officers Law § 43 and the structuralissues that remain unresolved even with the present judicially approved method of appointment. Part III will consider several alternative methods of gubernatorialsuccession and to filling a vacancy in the office of lieutenant-governor. It willdiscuss whether any of those approaches would suffice to meet the policy goals of the lieutenant-governor’s office in New York’s constitutional structure. Part IV willoffer a potential solution which avoids the risk of legislative gridlock and preservessome electoral input into which candidates may be chosen to succeed to the office of lieutenant-governor.
II.
 
The Unacceptable
Skelos
Solution
The Court of Appeal’s decision in
Skelos v. Paterson
removes any electoral checkfrom those selected to fill the position of lieutenant-governor and leaves severalstructural problems unresolved. Chief Judge Lippman’s opinion recognized that the
Skelos
solution is not necessarily the best solution to the issue of succession, andheld only that the present constitutional and statutory scheme permits the governorto appoint a lieutenant-governor in case of a vacancy.
13
Three major flaws with thepresent structure are discussed below.
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13
 
Id
. at 1146 (Lippman, C.J.) (“Before us . . . is not the abstract question of whether it would bebetter [to have some other system]. For now, the Legislature, pursuant to an express grant of constitutional authority, has specified that the vacancy is to be filled not by election but bygubernatorial appointment alone—a determination that the Legislature is always free to revisit.”) 

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