Constitutional Experts, Democratic Assemblyman Warn Paterson

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Photo: Everett Bogue; Photos: Getty Images, iStockphoto

As we reported earlier, it's being widely speculated that in his 5 p.m. televised address tonight, Governor Paterson will either announce the appointment of a lieutenant governor or his intention to do so if the Senate doesn't soon untangle this horrible mess they've created. But the move would be highly controversial — it's based on a new reading of the Public Officers Law being pushed by Assemblyman Gianaris and good-government groups that Attorney General Andrew Cuomo has already openly opposed. But since Cuomo might not be totally unbiased in this situation, we decided to talk to some other folks who have some expertise in this very situation. Turns out, they all agree: Paterson shouldn't do this, because, well, it will make the Constitution cry.

Gerald Benjamin, SUNY New Paltz's Distinguished Professor of Political Science and recognized expert on New York State government (and also the father of tireless Daily News blogger Elizabeth Benjamin) said, flat out, "I do not think this is constitutional." He continued:

We have explicit provisions for filling vacancies in other statewide offices, though not this one. This cannot be presumed an accident. Filling this vacancy was almost certainly not contemplated when the provisions in the P.O. law now under discussion for use here were written. We have had frequent vacancies in the office in modern history. No appointment was ever made under the P.O. law.

Benjamin added that Paterson would make the situation in Albany worse, not better, if he followed through with an appointment. In this concern he's joined by Peter Galie, the chair of the political-science department and director of the Raichle Pre-Law Center at Buffalo's Canisius College, and author of the book The New York State Constitution: A Reference Guide. Galie believes such a move "will create another constitutional crisis" and will certainly be thrown to the courts. There's already "a provision in the Constitution for filling the office when it is vacant," he says. "The fact that the Senate has been unwilling or unable to choose a temporary president who would be acting L.G. does not change that fact." Simply put, he believes that Paterson's power to appoint a lieutenant governor "ought to be more explicitly granted by the Constitution for its exercise to be legitimate."

You won't hear any disagreement from Assemblyman Robin Schimminger, a Democrat from Erie County. Last year, the NYU Law grad participated in a forum hosted by the Nelson A. Rockefeller Institute of Government (as did Benjamin and Galie) called "Gubernatorial Succession and the Powers of the Lieutenant Governor," which focused on this very situation. Schimminger has, since 1985, pushed for a constitutional amendment that would allow the governor to appoint a new lieutenant governor during a vacancy. So he's thought about this. A lot. Though he noted that "difficult times require innovative approaches," Schimminger, like Benjamin, pointed out that no other governor in this situation felt they had the power to appoint their lieutenant governor. Choosing his words very carefully, he told us that "absent a constitutional provision allowing him to nominate an individual, [Paterson] should not make use of this arcane and never-before-used provision in the Public Officers Law. It would be fraught with uncertainty and potential negative consequences."

What's funny here is that Paterson warned state senators just recently that they would be violating the constitution if they skipped out on his special sessions. We'll soon find out whether he practices what he preaches.

Update: He will not. The Times is reporting that Paterson will name former MTA chief Richard Ravitch as his lieutenant governor.