Veterans of Last Legal Battle Over N.Y. Lieutenant Governor Vacancy Say Legislature Must Act To Prevent Yet Another Crisis

By David Howard King

Veterans of Last Legal Battle Over N.Y. Lieutenant Governor Vacancy Say Legislature Must Act To Prevent Yet Another Crisis

4.29.2022

By David Howard King

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The four panelists gathered by the New York State Bar Association to discuss the last crisis that erupted over choosing New York’s lieutenant governor weren’t expected to agree on anything. Yet, a consensus did emerge on Thursday night that the state Legislature should act to prevent a crisis over the position, which has been at the heart of several major controversies in New York politics.

The panel were all veterans of the 2009 legal battle over Gov. David Paterson’s selection of Richard Ravitch as lieutenant governor in 2009 .Peter Kiernan served as Paterson’s counsel and Professor Richard Briffault wrote the amicus brief defending Paterson’s right to appoint Ravitch. John Ciampoli was the attorney for the Senate Republicans who sued the governor to unseat Ravitch in what became Skelos v. Paterson and Professor Michael Hutter Jr. wrote the amicus brief opposing the appointment.

And yet, by the end of the occasionally contentious session, agreement was reached on a few topics.

One of the takeaways encapsulated by veteran political reporter Liz Benjamin of Marathon Strategies, who moderated the panel, was that the position of lieutenant governor should be taken more seriously. Paterson himself once quipped that the job only involved calling each morning to make sure the governor was alive and then going back to bed. Yet, the lieutenant governor is next in line should the governor be unable to serve, and New York’s current governor, Kathy Hochul, got the job that way.

Further, the panelists agreed,  that the Legislature has had over a decade to correct the law and should find the political will to do so now. They also described Hochul’s power to appoint Brian Benjamin as lieutenant governor as exemplifying what is wrong with the law. Benjamin resigned after his arrest on campaign fraud charges resulting from his Senate race, but he cannot be removed from the ballot under New York law.

“And now Hochul potentially has this albatross around her neck until November,” said Ciampoli who is of counsel to Messina Perillo Hill. “He should never have been lieutenant governor. He should have been vetted.”

No one argued that point.

Less than a week following the panel the legislature passed legislation allowing an official charged with a crime to remove themselves from the ballot. Benjamin did just that and Hochul appointed Rep. Antonio Delgado as her new Lieutenant Governor. The legislature did not pass legislation granting itself confirmation and review of the appointment.

What the panel did argue was over was how the lieutenant governor crisis precipitated by Benjamin’s federal indictment on bribery and other charges aligns with the situation in 2009.

Kiernan, senior counsel at Venable, began the presentation by stressing just how dire the situation was in 2009.

The defections of two Democrats to the Republican side led to lawsuits over control of the chamber, dueling sessions and continually changing alliances. The Legislature was unable to govern while important laws lapsed, leaving some municipalities unable to collect tax revenue because of uncertainty over the impact of state law on their budgets. The Senate wasn’t just paralyzed in its ability to legislate; it couldn’t even agree on leadership, meaning there were no clear line of succession from Paterson. This was all in the aftermath of the financial crisis of 2008 when New York needed firm leadership.

Kiernan said an attempt was made to settle Skelos v. Paterson by giving the Legislature confirmation powers over the appointment of lieutenant governor. He said Paterson knew the appointment would be scrutinized and that Ravitch had the credentials to withstand the test. Kiernan also detailed how the administration tried to get the case to the Court of Appeals as quickly as possible so that Ravitch could move the Senate out of its deadlock.

Ciampoli and Hutter, professor law at Albany Law School and of counsel to Powers & Santola, emphasized that they had deep respect and admiration for Ravitch—they saw him as a sterling appointment. They said the issue was that the appointment was undemocratic because there was no election. They pointed to Gov. Thomas Dewey’s attempt to appoint a lieutenant governor that was thwarted by the attorney general.

However, Briffault, a professor of legislation at Columbia Law School, countered that the law, which called for a special election to replace the lieutenant governor, had changed drastically between Dewey and Paterson. He also noted that the Public Officer’s Law allows the governor to appoint  people to vacated elected positions. Even in 2009, he noted, similar appointments were made — including that of Rep. Kirsten Gillibrand to the Senate seat vacated by Hillary Clinton when she became Secretary of State.

Briffault also pointed out just how different the situation is surrounding the lieutenant governorship now than it was in 2009.

“2009 was very unusual,” said Briffault, “Right now unless something happens to the governor, we could easily survive not having someone in the position until the general election. Right now, it doesn’t change the party that is in power, but in 2009 it might have.”

In the end, Liz Benjamin and her four guests agreed there is a clear path forward. As Kiernan put it, the Legislature need not “lurch from crisis to crisis.” And as Benjamin said, the body that lacks “foresight” and focuses on “going along to get along” should take action to prevent another crisis. How that should happen, though, led to differing opinions. Ciampoli proposed a Constitutional Amendment while Briffault favored a new law.

“The fix is pretty obvious—some sort of legislative approval in the appointment process,” Briffault said.

 

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