Letter From The President Of The New York County Lawyers' Association

2009-08-05 00:00

To The Readers Of The Metropolitan Corporate Counsel:

It's Broke. Let's Fix It.

At press time, the New York State Senate was about to resume legislative sessions after a month of paralysis that was brought on by what must be described as a "perfect storm." Although the immediate crisis appears to have passed, deadlock could return if any two of the 32 Democratic senators were to leave office prematurely.1New York State should act promptly to preclude a repetition.

The elements that led to the constitutional crisis were (i) election of a Senate divided 32-30 between Democrats and Republicans, (ii) the resignation of Eliot Spitzer, elevating David Paterson to the governorship and leaving the office of lieutenant governor vacant, and (iii) the decision of two Democrats to cast their lots with the Senate Republicans, briefly giving the Republicans 32-30 control of the Senate, during which time they purported to elect one of the defecting Democrats president pro tempore of the Senate, followed by (iv) the decision of the other defecting Democrat to return to the Democratic caucus, producing a 31-31 voting deadlock.

Governor Paterson appointed Richard Ravitch as lieutenant governor, relying on a statute that gives the governor power to fill vacant elected offices when there is no specific statutory provision for dealing with the vacancy. Both the Republicans and Attorney General Andrew Cuomo challenged the validity of the appointment.

The deadlock was broken only when the second defecting Democrat returned to the fold, in exchange for the title of Majority Leader (whose powers are not clear) and chairmanship of the Rules Committee.

As a direct result of the impasse, New York City lost at least $60 million (and other municipalities lost smaller amounts) because the Senate had not passed the legislation necessary to authorize their sales taxes. The state comptroller could not certify the budget for Yonkers, because the budget's revenue projections included sales taxes that required legislative authorization, leaving Yonkers on the brink of insolvency when the deadlock ended. The New York City Board of Education had to be reconstituted because the legislation giving control to the mayor lapsed on June 30 and had not been extended. The Power for Jobs program expired. Myriad other bills with important consequences for municipalities had also not been acted upon before the impasse.

Harder to document, but also serious, is the loss of public respect for governmental institutions engendered by the Senate shenanigans.

One thing can and should be done immediately. The governor should seek a judicial determination of whether Mr. Ravitch has been validly appointed as lieutenant governor. Such an action is by no means moot, notwithstanding the apparent resolution of the crisis. If two of the Democratic senators left office prematurely, the Senate would be evenly divided, and the lieutenant governor would have to vote to break ties.2There should be no uncertainty concerning the legitimacy of his actions as lieutenant governor. In addition, if Governor Paterson were to leave office prematurely, there should be no question as to whether he was succeeded by Mr. Ravitch as a validly appointed lieutenant governor or by the president pro tempore of the Senate - the official who assumes the Governor's duties in the absence of a lieutenant governor.

Second, the Legislature should act to remove any uncertainty concerning whether Section 43 of the Public Officers Law authorizes the governor to appoint a lieutenant governor if that office becomes vacant in the future.

Third, if the courts determine that Section 43 of the Public Officers Law does not authorize the governor to fill a vacancy in the office of lieutenant governor, it will be necessary to amend the State Constitution to provide a mechanism for filling the office. One hesitates to suggest calling a constitutional convention, but New York should not be faced with the prospect of renewed constitutional crisis.

Finally, if New York is considering constitutional amendments as a result of the latest legislative paralysis, it might also consider a constitutional amendment that would prevent the Legislature from tying judicial compensation to its own compensation, and introduce a nonpolitical mechanism for providing for fair judicial compensation.

No one would have foretold the events that led to this year's constitutional crisis, but now that we have experienced it, we should not ignore the grave deficiencies in State governance that it revealed.


Ann B. Lesk