Consensus Grows on Changing Lt. Gov. Laws

By Karen DeWitt

Albany, New York – The judges on the state's highest court are deliberating whether Governor Paterson acted legally when he appointed Richard Ravitch to be his lieutenant governor. As the court weighs the arguments, there's growing consensus that the laws concerning gubernatorial secession needs to be changed.

The state's highest court is made up of seven judges, four appointed by former Governor George Pataki, and three by Democratic Governors- Cuomo, Spitzer, and now Paterson. Vince Bonventre, Albany Law School professor and Court of Appeals expert, says based on the judges questions during the recent arguments, it's likely that the court will issue a divided ruling, because the combined constitutional clauses and legal statutes concerning a vacancy in the office of lieutenant governor are not clear, and are open to interpretation.

"It appears as though the judges are divided right now," said Bonventre. "Some of the judges quite plainly were showing their hands."

Bonventre says it could be a 4 to 3 ruling, with the GOP appointees ruling against Paterson's appointment of Richard Ravitch as his lieutenant governor, and the Democratic appointments, including the court's chief judge, Jonathan Lippman, ruling for the governor.

"Some people are already saying if they go that way it will be New York's Bush v Gore," said Bonventre.

Bonventre says Pataki appointee, Judge Eugene Piggott, known for his common sense opinions, is quite likely the swing vote. During the arguments, his questions searched for holes in the arguments of the Senate Republicans, who brought the suit against Paterson. He says it's possible that Piggott could be the deciding vote and side with the three Democratic appointees for a 4 to 3 ruling in favor of Paterson.

The stakes are high for the governor. If he does lose in court, Paterson will be left with same problem that led to the appointment of Ravitch, the uncertainty in the State Senate. According to the constitution, the Senate President acts as lieutenant governor when a vacancy occurs. The constitution also says that when a governor is out of state, the lieutenant governor takes on the duties of acting governor, a tradition that has been ignored in recent years with the advent of cell phones, blackberries, and other means of instant communication.

Patricia Salkin, who directs the Government Law Center at Albany Law School, says if the judges rule against Paterson, he's back to square one in the event he decides to travel out of state.

"It becomes an issue again, " says Salkin, who says Paterson will need to come to an understanding with the current Senate President Pro Temp, Democrat Malcolm Smith.

When Paterson first ascended to the job of governor Joe Bruno, a Republican and long time Majority Leader of the Senate, was the acting lieutenant governor. But Paterson and Bruno, who were close, had an agreement that Bruno would not try to act as governor whenever Paterson left the state.

Paterson and Senator Smith also get along. The governor was more worried when Senator Pedro Espada, a Democrat who joined Republicans in June in a coup attempt, also claimed to be Senate President Pro Temp.

Salkin says it's clear that the laws governing gubernatorial secession and the role of the lieutenant governor are due for an overhaul, or at least a clarification.

"On that issue everyone agrees," Salkin said.

The governor's own chief counsel says Paterson plans to introduce a bill soon allowing governors to appoint their own lieutenant governors, in the event of a vacancy, with the advise and consent of the legislature.

On the other hand, if the governor wins his case, Bonventre says it's likely that members of the legislature will be writing their own proposals to change the process.

The court is working on an expedited schedule, and will have the ruling ready within a couple of weeks.