Super Lawyers
William C. Altreuter
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Wednesday, July 08, 2009

We are talking about Public Officers Law §§ 41 and 42. § 41talks about the procedure to be followed in filling vacancies in the office of Comptroller and Attorney-General. It is silent on the issue of how to fill vacancies in the office of lieutenant-governor. § 42(1) provides: "A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, except in the offices of governor or lieutenant-governor, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election."

§ 42(2) provides: "A vacancy occurring by the expiration of term at the end of an even numbered year in an office which may not under the provisions of the constitution be filled for a full term at the general election held prior to the expiration of such term, shall be filled at said general election for a term ending with the commencement of the political year next succeeding the first general election at which said office can be filled by election for a full term."

The only case that seems to speak to the question of whether the Governor can appoint someone to fill the office of lieutenant-governor is Ward v. Curran, 291 N.Y. 642 (1943). The way I read Ward, the office of lieutenant-governor is open, and should be filled by election this November. I am not seeing that the governor has the power to fill the vacancy. There is a hole in the statute, one that Assemblyman Robin Schimminger (not a guy that I've ever noticed as being particularly useful before, but even a blind pig, etc.) has been trying to fix since 1985. I give Paterson credit for trying, but pulling an unconstitutional move like this just buys a lawsuit. Unless his plan is to unite the 31-31 Senate by making them agree that he's wrong, I don't see this working.

UPDATE: One of the names that was buzzed before Richard Ravitch was announced was my classmate, Denise O'Donnell. I wonder if she was asked and turned it down- she is said to still be interested in running for AG (and I think she'd be go d in that role). Ravitch is not a bad choice, for what it's worth. I’m not sure how fast this thing can work its way up the appellate ladder– presumably someone has an Article 78 petition pretty much ready to file, and I’d assume that the Albany County Supreme Court justice that gets the case would put it down for an expedited hearing. If it were me, I’d want to hear arguments this coming Monday, and I’d try to have a decision and order out by the end of the day. After than I’m unsure about the process: how fast can the Third Department move? There's time, in any event, and that gives Ravitch an opportunity to work behind the scenes to broker some sort of way out of this mess. I like Ravitch-- I voted for him in the mayoral primary back in the day-- and mediating messy disputes like this is one of the things he seems to be particularly good at. Paterson is still doomed, and New York State government is still horribly broken, but something has to be done, and Ravitch may be the guy to patch together a solution.

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