On April 27, 2022, Venable senior counsel Peter Kiernan was quoted in the New York Law Journal on New York Governor Kathy Hochul’s dilemma as she looks to replace former Lieutenant Governor Brian Benjamin. Benjamin resigned from office on April 12 and suspended his campaign amid a federal indictment on bribery charges. According to the article, the situation has prompted renewed interest in Kiernan’s 2009 appeals case, Skelos v. Paterson, as Hochul seeks to extricate herself from Benjamin on the June 28 state primary ballot.
Hochul has said she’s considering a new running mate, but first wants the state assembly to act on a bill that would allow for Benjamin’s removal from the ballot. The bill, which is in committee, would allow a New York candidate to decline a ballot slot in the event of a criminal indictment, resignation, or critical illness. “I guess they’re trying to come up with some legal means whereby they could get a replacement for Benjamin on the ballot, because otherwise she’s going to have two people that are opposed to her running in the primary for lieutenant governor, and one of them is going to win,” Kiernan said.
While Hochul’s predicament is not a constitutional crisis, there was one when former Governor David Paterson appointed Richard Ravitch to lieutenant governor in 2009, said Kiernan, who served as counsel to Paterson. Until then, all New York lieutenant governors had been elected, but at that time the state was faced with a deadlock regarding the Senate majority leader. The majority leader serves as acting lieutenant governor in the event of a vacancy, and at the time, a Republican and a Democratic senator both claimed rights to the post of president pro tempore. “We began in secret, researching whether the governor could appoint a lieutenant governor,” he recalled. “There were lots of other contextual things, but they all add up to the fact that it was an absolute crisis and had to be dealt with.”
A complaint questioning if a governor had the authority to appoint a lieutenant governor was fast-tracked from trial court in Nassau County to the New York Court of Appeals within three months. The high court reversed a decision by the Appellate Division, Second Department, which had ruled Ravitch’s appointment was unlawful because neither the state constitution nor any law allowed for the selection of a lieutenant governor other than by election.
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