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By Bill Altreuter

We are talking about Public Officers Law §§ 41 and 42. § 41talks about the procedure to be followed in filling vacancies in the office of Comptroller and Attorney-General. It is silent on the issue of how to fill vacancies in the office of lieutenant-governor. § 42(1) provides: "A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, except in the offices of governor or lieutenant-governor, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election."

§ 42(2) provides: "A vacancy occurring by the expiration of term at the end of an even numbered year in an office which may not under the provisions of the constitution be filled for a full term at the general election held prior to the expiration of such term, shall be filled at said general election for a term ending with the commencement of the political year next succeeding the first general election at which said office can be filled by election for a full term."

The only case that seems to speak to the question of whether the Governor can appoint someone to fill the office of lieutenant-governor is Ward v. Curran, 291 N.Y. 642 (1943). The way I read Ward, the office of lieutenant-governor is open, and should be filled by election this November. I am not seeing that the governor has the power to fill the vacancy. There is a hole in the statute, one that Assemblyman Robin Schimminger (not a guy that I've ever noticed as being particularly useful before, but even a blind pig, etc.) has been trying to fix since 1985. I give Paterson credit for trying, but pulling an unconstitutional move like this just buys a lawsuit. Unless his plan is to unite the 31-31 Senate by making them agree that he's wrong, I don't see this working.

Full post as published by Outside Counsel on July 08, 2009 (boomark / email).