A VACANCY in the office of New York governor has been filled by the lieutenant governor just nine times — once as a result of death, once of impeachment and seven from resignation. Until this past Wednesday, never has there been a filling of the then-vacant office of lieutenant governor.
This is not at all surprising in light of the state Constitution — which provides (Art. IV, Sec. 6) that, when there is a vacancy in the office of lieutenant governor, the temporary president of the Senate “shall perform all the duties of lieutenant-governor during such vacancy.”
Thus, our Constitution’s framers decided not to fill that vacancy, but rather devolve the duties of the office to a specified person — i.e., whoever at the time of the gubernatorial vacancy was the temporary president of the Senate.
Significantly, the framers designated a currently elected state officer, and only that such person would assume the duties of the office. It surely is evident that the framers did not authorize a gubernatorial appointment to be made for the vacancy or even for a person to merely “perform” the office’s duties.
That is, the notion explicit in Gov. Paterson’s argument, namely the “divine right” of a leader to name his/her successor, may be valid elsewhere in the world, but was surely one that the framers wanted no part of.
Of note, the 25th Amendment to the US Constitution, as enacted in 1967, provides that, in case of a vacancy in the office of the vice president, “the president shall nominate a vice president who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Of the various public-policy reasons underlying this amendment, one of singular importance was the recognition that a vice-presidential vacancy could mean a lack of continuity in the administration of critical domestic and international affairs, should the president be unable to discharge the powers and duties of his office.
Giving the president the power to nominate assures that there would be congenial and effective working relationship between the president and his or her vice president. But giving the president the power not of appointment but only of nomination, subject to House and Senate approval, ensures that a person of high caliber who has the respect of Congress (another critical factor) will be the vice president.
Since the enactment of the 25th Amendment, several states that had lacked a constitutionally specified line of succession for lieutenant governor have enacted legislation that, mirroring the new federal system, specifically provides for a gubernatorial appointment subject to confirmation by the state legislature.
With this background, it is difficult to understand Gov. Paterson’s claims that he can appoint a lieutenant governor, and that such appointment is not at all subject to confirmation by the Legislature.
There is simply no textual support in the Constitution for such a claim, and it is belied by the framers’ intent, discussed above, that such power was not to be given to the governor.
The argument that Paterson holds such power is based on a state statute — Public Officers Law Section 43. But this claim is unsupportable.
This statutory provision, enacted in 1909, by its own terms only allows the governor to make an appointment of a person to “execute the duties” of a vacant office when there is no provision of law elsewhere that provides for the filling of the vacancy.
But, as noted before, the state Constitution does provide for the performance of the duties of lieutenant governor upon a vacancy in that office. Thus, the statute is inapplicable.
Moreover, nothing in the legislative history of Section 43 suggests that the Legislature wanted its provisions to be applicable to the vacant office of lieutenant governor. And, of course, even if such legislative intent could be found, the statute cannot trump the provisions of the Constitution.
Does New York need a new system for filling a vacancy in the office of lieutenant governor? Some 25 years ago, the state Law Revision Commission made a full study of the issue, and concluded that the then-existing line of succession was adequate for the needs of New York.
Perhaps now that conclusion should be revisited. What cannot be done now, as Gov. Paterson has done, is the engaging in an unconstitutional act, which is nothing more than the hijacking of the office of lieutenant governor for, apparently, his own self-interest.
Michael J. Hutter, a professor of law at Albany Law School, served as executive director of the State Law Revision Commission from 1979-1984 and is now a Commis sioner of the Law Revision Com mission.