I'm not a lawyer, but let me play one for now. After all, with the antics in Albany, how could it hurt? In thinking about the monotonous, boring and buffoonish situation in our State Senate these past few weeks, I've wondered why no citizen has stepped up to file a legal challenge to force an end to this charade. An Article 78 proceeding, as I understand it, allows affected citizens legal relief to compel the government to act.
A friend of mine, who is an attorney of some distinction, has sent me what appears to be the answer to my thoughts and perhaps the prayers of a weary citizenry. It is an order of the state's highest court, the Court of Appeals, in 1943 affirming a decision of the Appellate Division that ordered the state to hold an election to fill the vacancy of the office of Lieutenant Governor! Yes, we could have an election this November to decide who will fill the vacancy created by Paterson's accession to the governorship.
In the case of Ward v. Curran (291 N.Y. 642, 50 N.E.2nd 1023), the Court of Appeals unanimously affirmed the order of the Appellate Court, mandating that the Secretary of State make preparations for the vacancy to be filled at the next general election. The Appellate Court, by a 4-to-1 decision, had determined that because the lieutenant-governor has "statewide duties other than to preside over the senate and, when necessary, to act as governor, which should be performed by an official elected in the state at large and not by one elected by the voters of a single senate district, as is the case of the temporary president of the senate."
The Appellate Court goes on to state "Section 42, Public Officers law, was enacted by the legislature under a constitutional mandate to 'provide for filling vacancies in office.' It is not limited by Section 41." This was in response to the then-Attorney General's argument that Section 41 makes no provision for filling a vacancy in the office of Lt. Governor while it does do so for the offices of Comptroller and Attorney General. The court deemed that the provision of the constitution regarding the role of temporary president of the senate was limited to presiding over the deliberations of the Senate.
While this may not break the impasse between the two currently equally-ridiculous factions in the state senate, it would relieve us of the troublesome prospect of a completely rudderless state government should anything happen to incapacitate Governor Paterson while there is no clear line of succession. Or worse yet, the elevation of one Pedro Espada to the governor's office, as a result of some backroom deal between the warring parties in the senate.
So, to my friend Dick Ravitch, I would say get ready to rumble. You may have to run for the job, if only to serve out the term. Let this lesson be observed, no good deed goes unpunished! A lifetime of honorable service to your city and state in times of crisis, and this is what you reap!