In a press conference this morning, Assemblyman Michael Gianaris outlined the legal argument, originally proposed by our former colleague Jeremy Creelan, in support of Governor Paterson’s power to appoint a lieutenant governor to preside over the Senate.
It’s an interesting proposal. Because the senate rules state that the lieutenant governor is the president of the senate, this solution would provide the chamber with a presiding officer without requiring the membership to agree on whom rightfully holds the title of majority leader. The lieutenant governor wouldn’t count toward a quorum for the purposes of convening a regular session, but in the daily extraordinary sessions which a judge has ordered the full Senate to attend, a lieutenant governor could help end the stalemate and facilitate the passage of critical legislation. With a majority of Senators necessary to conduct regular Senate business, this solution wouldn’t affect in the ongoing fight to control the chamber in 2010, and the Senate’s warring factions would be free to take as long as they need to reach an agreement about the chamber’s leadership.
But while we’ve been quoted as saying that Gianaris’ proposal is a viable solution to the gridlock in
On the one hand,
“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.”
On the other hand, the 1943 state Supreme Court case cited in Gianaris’ letter to Paterson was decided based on the 1938 constitution, which diverges from today’s constitution in several important ways. The decision focuses on whether a clause of the former constitution stating that the president pro-tempore of the Senate shall preside over the chamber in the absence of a lieutenant governor constitutes a provision for filling a vacancy in the office of lieutenant governor. While the court ruled that this provision did not mean that the senate president assumed the office of lieutenant governor, it based its decision on the fact that presiding over the Senate is just one of the responsibilities of the office of lieutenant governor. The constitution used today reads a little differently with respect to succession to the office of lieutenant governor:
“In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.” [emphasis added]
We don’t have a conclusive answer as to whether this constitutes a provision of law for filling the office of lieutenant governor (as opposed to a provision for someone to assume the responsibilities, but not the title of the office) but it’s certainly not a slam-dunk for Gianaris’ side.
In the end, the question for the courts would be, once the temporary president assumes all the duties of lieutenant governor, has the vacancy in the lieutenant governor's office been filled? If it has not, as Jeremy Creelan argued in the Daily News, then the Governor might have the power to appoint his own choice to temporarily fill the vacancy, pursuant to Section 43 of the Public Officers Law. Creelan has also pointed out that, in contrast to other offices, the drafters of both the constitution and the Public Officers Law never explicitly exempted the lieutenant governor's office from those that could be filled by the governor.
Despite the potential problems with Gianaris’ proposal, it merits serious consideration. The mere possibility of ending the current gridlock that is holding critical legislation hostage might be reason enough to take Gianaris’ theory for a spin. The courts exist to help navigate exactly this type of legal grey area, and it seems like there would be a real value to allowing them to weigh the merits of the arguments made today.