Wednesday, July 22, 2009

This Time, Let the Court Decide

The end of the Senate Coup two weeks ago doesn’t mean that New Yorkers have to go without their daily dose of interesting legal wrangling. Last night, a state Supreme Court Justice granted a preliminary injunction preventing Ravich from acting as Lieutenant Governor.

But that’s not the interesting part. Apparently, Governor Paterson’s argument against the motion for an injunction brought by Senate republicans is that it would upset the balance of powers for the judicial branch to rule in this case.

While we strongly opposed judicial intervention in the coup, we have to disagree with Paterson on this one. As the justice puts it in his ruling:

“A controversy is not justiciable if its resolution would require the court to ‘intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches’ […] a court may determine whether the state constitution or the legislature has empowered the governor to act.”

In this case, the court is being asked to interpret the provisions in the constitution and the Public Officers Law that Paterson argues grant him the authority to appoint Ravich, not to intervene in the legislature’s internal politics. Paterson’s argument is particularly baffling given that a central part of his defense of the appointment is a 1943 court case in which the judicial branch was asked to rule on the constitutional authority of the executive branch to fill the office of lieutenant governor. The case provides an interesting precedent and a victory for Paterson will likely require the courts to rule that it still applies today.

While the law has changed slightly since that case, the definition of justiciability has not. And although the coup is over and the impact of a Lieutenant Governor may now be inconsequential, we could stand to have some clarity on the Governor’s ability to appoint the Senate’s presiding officer – after all, a return to deadlock, as Liz Benjamin so aptly put it yesterday, is “just a hissy fit away.”

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