Tuesday, September 22, 2009

N.Y. Court of Appeals Upholds Governor's Power to Appoint Lieutenant-Governor

In a decision whose words appear to be politically neutral, the New York Court of Appeals by a 4-3 vote today reversed a unanimous Appellate Division, Second Department, and ruled that Governor Paterson has the power to appoint a Lieutenant-Governor when that position becomes vacant. The ruling, Skelos v. Paterson, can be found here.

But the neutral words of the opinion do not conceal the political undertones of the ruling. The three members of the Court of Appeals appointed by Democratic Governor Paterson--Chief Judge Lippman (the author of the majority opinion), and Judges Ciparick and Jones--all voted to uphold the Governor's power to make the appointment. Three judges appointed by Republican Governor Pataki--Judges Pigott, Graffeo and Smith--all dissented and voted to uphold the challenge to the appointment made by a Republican member of the State Senate.

The swing vote was Judge Read who was appointed by Governor Pataki. New York political consultant Jerry Skurnick (www.primeny.com) pointed out to me that prior to her appointment to the Court, Judge Read was Deputy Counsel to Governor Pataki. This experience may make her more willing than her Republican colleagues on the Court to uphold the assertion of executive authority by a governor.

I had thought the case, which was orally argued on September 11, was a toss-up, and the 4-3 vote suggests I was correct. I did not, however, anticipate that the Court would so clearly divide along political party lines.

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