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NY appeals court rules governor lacks authority to appoint lieutenant governor

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] A New York state appeals court ruled Thursday that Governor David Paterson acted beyond the scope of his constitutional authority when he appointed Richard Ravitch lieutenant governor. The Second Judicial Department Appellate Division affirmed a lower court ruling that blocked Ravitch's appointment. The court found: In our view, therefore, Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate. Inasmuch as the statute as applied to the office of lieutenant-governor cannot be reconciled with the Constitution, it must yield. Thus, 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.Thursday's decision clears the way for the case to go before the Court of Appeals. A spokesperson for the governor said that he had not decided whether to seek a stay to allow Ravitch to serve while the appeal is pending.Paterson appointed Ravitch on July 8 while the state Senate was embroiled in a power struggle between Democrats and Republicans. Paterson pointed to a provision of the New York Constitution that allows the governor to appoint people to fill vacant elected positions but it silent on whether the governor may appoint a lieutenant governor. New York has not had a lieutenant governor since former governor Eliot Spitzer resigned amid a prostitution scandal and Paterson became governor. The lieutenant governor serves as Senate president and casts tie-breaking votes.

Full post as published by JURIST - The Paper Chase on August 21, 2009 (boomark / email).