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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND DEPARTMENT DEAN G. SKELOS and PEDRO ESPADA, JR., as duly elected members of the New York State Senate,

Index No.: Active App. Div. No. 200906673 (Nassau County Clerk’s Index No. 13426-2009)

Plaintiffs-Respondents, -v.DAVID A. PATERSON, as Governor of the State of New York, RICHARD RAVITCH, as Lieutenant Governor of the State of New York, and LORRAINE CORTES-VAZQUEZ, as Secretary of State of the State of New York, Defendants-Appellants.

DEFENDANTS-APPELLANTS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR INTERIM STAY AND EXPEDITED APPEAL

QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP KATHLEEN M. SULLIVAN FAITH E. GAY ROBERT JUMAN 51 Madison Avenue 22d Floor New York, NY 10022 (212) 849-7000 Counsel for Defendants-Appellants Date: July 28, 2009


TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1  STATEMENT OF FACTS ..............................................................................................................5  ARGUMENT ...................................................................................................................................5  I. 

THERE WILL BE GRAVE HARM TO THE STATE OF NEW YORK IF THE STAY IS LIFTED ................................................................................................................6  A. 

Lieutenant Governor Ravitch’s Continuation in Office Is Essential To The State’s Emergency Efforts To Address The Financial Crisis ..................................7 

B. 

The Stay Ensures Clarity In The Gubernatorial Line Of Succession ......................9 

C. 

The Status Quo Ante This Lawsuit Should Be Preserved So As To Avoid A Destabilizing Seesaw Effect Upon The State ....................................................11 

II. 

RESPONDENTS WILL NOT SUFFER IRREPARABLE HARM IF THE STAY REMAINS IN PLACE.......................................................................................................13 

III. 

THE PRELIMINARY INJUNCTION WAS IMPROPERLY ISSUED AND IS THEREFORE PROPERLY STAYED. .............................................................................16 

IV. 

A. 

CPLR § 6311 Prohibits The Trial Court From Issuing The Injunction .................16 

B. 

The Respondents Lack Standing To Seek The Injunction .....................................18 

C. 

A Quo Warranto Action By The Attorney General Is The Exclusive Means To Challenge The Appointment .................................................................21 

RESPONDENTS HAVE FAILED TO DEMONSTRATE ANY CLEAR AND CONVINCING LIKELIHOOD OF SUCCESS ................................................................23 

CONCLUSION ..............................................................................................................................29 

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PRELIMINARY STATEMENT Plaintiffs-Respondents Skelos and Espada (“Respondents”) offer no cogent reason for this Court to lift the stay properly imposed on July 22, 2009, by Associate Justice L. Priscilla Hall of this Court under NY CLPR § 5518 and CPLR § 5519(a) & (c), and this Court should grant a stay of the preliminary injunction issued below pending resolution of the appeals in this matter. Richard Ravitch has been Lieutenant Governor of New York for all but 40 hours of the three weeks that have passed since his appointment on July 8, 2009.1 Senators Skelos and Espada fail in their papers to point to a single fact suggesting they have individually suffered any harm from Lieutenant Governor Ravitch’s occupation of his office during this period, or would do so during the pendency of appellate proceedings. By contrast, Defendants-Appellants (“Appellants”) have explained, and explain further here, why grave harm will result to the State if the stay does not remain in place pending appellate resolution. Senators Skelos and Espada now raise cries of alarm that Lieutenant Governor Ravitch might preside over the Senate during the appeal process even though the Senate is now out of session—for example, if it reconvenes for a special session to consider a bill regarding mayoral control of the schools of New York City. See Affirmation of David L. Lewis dated July 27, 2009 (“Lewis Aff.”), at ¶¶ 11-16. But let us put that concern swiftly to rest: as Appellant Governor David A. Paterson makes clear in the Affidavit submitted herewith, “I wish to make emphatically clear that during the pendency of this litigation and appeals, Lieutenant Governor Ravitch will not preside over the Senate.” Affidavit of David A. Paterson dated July 27, 2009 (“Paterson Aff.”), at ¶ 11 (emphasis added). Once Respondents’ unfounded fears that the Governor will 1

Justice Ute Lally’s temporary restraining order was in effect for approximately 17 hours before Justice Leonard B. Austin of this Court vacated it on July 9, 2009, and Justice William R. LaMarca’s preliminary injunction was in effect for approximately 23 and ½ hours before Justice Hall vacated it on July 22, 2009. 1


somehow “forc[e] Richard Ravitch upon the Senate” (Lewis Aff., at ¶ 14), and that they will somehow be “harmed by Richard Ravitch presiding over the Senate” (id., at ¶39, see also id., at ¶¶ 38-43), are removed from the equation, as they must be given the Governor’s statement, there is literally nothing left of Senators Skelos’s and Espada’s supposed claims of irreparable harm. On the other side of the balance, lifting the stay would cause grave and irreparable harm to the People of the State of New York. As the accompanying Affidavit of Governor Paterson and the accompanying Affirmation of Former Governor Hugh L. Carey dated July 26, 2009 (“Carey Aff.”), both make clear, Governor Paterson appointed Mr. Ravitch Lieutenant Governor in order to help the Governor address the gravest financial crisis the State of New York has faced since the mid-1970’s and the Great Depression. As Governor Carey attests, Mr. Ravitch played just such a role as a government officer in assisting Governor Carey to save the State from the severe financial crisis the State faced in the mid-1970’s. See Carey Aff., at ¶¶ 2-6, 11. As Governor Paterson reiterates in his affidavit, he selected Mr. Ravitch as Lieutenant Governor specifically because of that experience, in order to “help [the Governor] in an equally significant manner in an equally severe crisis” by serving today, as Mr. Ravitch did in the 1970’s, “as a credible bridge to the financial, business and labor communities in the State.” Paterson Aff., at ¶ 8. Former Governor Carey confirms that Lieutenant Governor Ravitch is “an ideal person to be the Governor’s partner and a link to New York’s labor, business, and financial communities and can do this most effectively as the Governor’s official second in command.” Carey Aff., at ¶ 11. Senators Skelos and Espada seek by their Opposition to impede the Governor’s decision to have Mr. Ravitch work by his side in the Executive Branch through the month of August and into the fall while they take a break from the State’s financial woes. Blinded by their own institutional self-interest, they ignore the economic prowess Mr. Ravitch brings to Albany as

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well as the key executive branch responsibilities the Governor has asked Lieutenant Governor Ravitch to carry out, focusing instead only on a lieutenant governor’s role in presiding over the Senate and standing in the line of succession. While these important duties in part motivated the Governor’s bold decision to appoint Mr. Ravitch and bring an end to the Senate impasse that was largely of Respondents’ own making, a lieutenant governor does far more than wait around for the Senate to meet or the Governor to die. The lieutenant governor is also an active executive official with a broad executive portfolio who works day-to-day, side-by-side with the Governor. As Former Lieutenant Governor Stan Lundine has written, Governor Mario Cuomo asked him to be his lieutenant governor because “he said he wanted a junior partner to help him run state government,” to “function as a deputy and top adviser,” and “to help him run a state government that is larger and more complex than many of the nation’s biggest corporations.” Stan Lundine, The Role of the Lieutenant Governor, in NEW YORK STATE TODAY: POLITICS, GOVERNMENT, PUBLIC POLICY 157, 158 (Peter W. Colby & John K. White eds., 2d ed. 1989) (emphasis added). So too with Governor Paterson and Lieutenant Governor Ravitch. As the affidavits of Governor Paterson and Former Governor Carey vividly demonstrate, the urgency of the State’s financial crisis requires that the Governor be free to continue to work with Lieutenant Governor Ravitch immediately for the benefit and welfare of the People of this State. Every day counts in a financial crisis of the magnitude the State now faces, and executive action is imperative. As Governor Paterson attests, “Lieutenant Governor Ravitch’s executive portfolio and responsibilities are extensive.” Paterson Aff., at ¶11 (emphasis added). The Lieutenant Governor cannot be the effective “deputy,” “top adviser” or “junior partner” Governor Cuomo described unless he is an executive officer, free to “share the Governor’s confidences and confidential information.” Carey Aff., at ¶ 11. As Governor Paterson states, “I need someone I

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can trust, who shares and has access to the same confidential information and government considerations, who is part of the executive branch and its powers, and who can execute and implement decisions while representing and speaking for the Governor.” Paterson Aff., at ¶10. Lifting the stay would cause irreparable harm to the State and its People by preventing Mr. Ravitch’s service to the Governor and the executive branch in these vital roles at a time when every day of executive leadership is crucial to the financial survival of the State. Lifting the stay would also subject the State to an intolerable seesaw-like state of affairs whereby Mr. Ravitch is Lieutenant Governor one day and not Lieutenant Governor the next, while Respondents’ lawsuit plays out in the courts. The status quo is that Mr. Ravitch is and has been Lieutenant Governor since July 8 for all but 40 hours, bringing at least a temporary end to a stalemate in the Senate that had left the State’s government paralyzed and dysfunctional. The Senate stalemate has already deprived the People of a functional state government for the month of June; this lawsuit has created additional uncertainty for the State’s government throughout the month of July; lifting the stay would interfere with urgently needed executive action for the month of August and beyond. But the State does not have another month to waste; every day counts in the current financial crisis. The balance of the equities and the public interest thus require that the stay remain in place pending final resolution of all appeals and the Governor and Lieutenant Governor should be free to work unimpeded and undistracted during the pendency of the appeals for the benefit of the People of the State. If, at the end of the day, the appellate courts should disagree with the Governor despite the clear and powerful arguments from text, structure and history that support the constitutionality of his action, Respondents will not have suffered an iota of harm in the meantime.

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STATEMENT OF FACTS Respondents Skelos and Espada have submitted no facts in support of their Opposition to the Motion for a Stay; the Affirmation of John Ciampoli dated July 24, 2009 (“Ciampoli Aff.”), and the Affirmation of David L. Lewis dated July 27, 2009 (“Lewis Aff.), consist almost wholly of legal arguments concerning their views of the merits of their case. In further support of the Motion for a Stay, Appellants respectfully refer the Court to the facts set forth in the Affidavit of David A. Paterson dated July 27, 2009 and the Affirmation of Hugh L. Carey dated July 26, 2009 that are filed herewith. ARGUMENT For reasons set forth in Appellants’ Memorandum of Law In Support Of Motion For Interim Stay and the supporting Affirmation of Faith E. Gay, both filed July 22, 2009, and for the further reasons set forth in this Reply Memorandum, Associate Justice Hall properly granted a stay under NY CLPR § 5518 and CPLR § 5519(a) & (c) of the preliminary injunction entered by Justice LaMarca below, and this Court should likewise grant a continued stay for the pendency of the appeals in this matter. Both below and in their opposition to the stay, Respondents have failed to surmount the high bar applicable here: “In order ‘to prevail on a motion for a preliminary injunction, the movant must demonstrate by clear and convincing evidence (1) a likelihood of ultimate success on the merits,(2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant’s position.’” Gluck v. Hoary, 865 N.Y.S.2d 356, 357 (2d Dep’t 2008) (quoting Apa Sec., Inc. v. Apa, 37 A.D.3d 502, 503, 831 N.Y.S.2d 201) (emphasis added). Each aspect of this test favors Appellants, not Respondents. As explained further below, the State will suffer grave harm if Lieutenant Governor Ravitch is enjoined from performing the duties of Lieutenant Governor—including his executive 5


duties, as to which Respondents, who are individual members of the Senate, have no cognizable interest whatsoever. By contrast, the Respondents have failed to demonstrate any injury to them as individuals or as Senators if a stay remains in place throughout the appeals process. The balance of equities and the public interest thus plainly favor the grant of a stay pending appeal. In any event, the preliminary injunction should be stayed pending appeal because it was improperly issued: the trial court, being outside the Third Department, lacked the power to issue a preliminary injunction, and Respondents lack standing and have failed to show any likelihood of success on the merits. The stay should be continued pending appeal. I.

THERE WILL BE GRAVE HARM TO THE STATE OF NEW YORK IF THE STAY IS LIFTED In disregard of the principle of separation of powers that is vital to our constitutional

system, Senators Skelos and Espada seek to enjoin the Lieutenant Governor from carrying out his functions as a key member of the executive branch, even though they rely solely on harms they will purportedly suffer as individual Senators. As detailed in Part II below, they will not suffer any harm as Senators if the stay continues. But if the stay is lifted, the State of New York will suffer grave harm. The magnitude of this crisis cannot be overstated. Every single day is critical, and it would do the State grave harm if the Lieutenant Governor were not permitted to help execute and implement the Governor’s recovery strategy and to provide clarity in the line of succession while this appeal is pending. Now, as in past fiscal crises, the Governor needs a capable and trusted Lieutenant Governor who can assist him in steering the State through the crisis and who cannot be displaced, as a Temporary Senate President may be, by unstable and shifting political coalitions in the Senate.

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A.

Lieutenant Governor Ravitch’s Continuation in Office Is Essential To The State’s Emergency Efforts To Address The Financial Crisis

The financial crisis currently facing the State is one of staggering magnitude. In Former Governor Carey’s words, “There is no aspect of State and local government that is not adversely affected by this crisis and all indications are that matters are worsening precipitously.” Carey Aff., at ¶ 8; see Paterson Aff., at ¶¶ 3, 7. In such circumstances, urgent and decisive executive action is needed, and “[i]t is the Governor, not the individual Senators such as the plaintiffs, who has the statewide mandate and responsibility for managing the State’s economic crisis.” Carey Aff., at ¶8. In such circumstances, it is imperative that the Governor have the support of as wide an array of assets as possible in formulating and executing his remediation strategy. As explained by Former Governor Carey, who himself was burdened with the responsibility of addressing one of the worst fiscal crises New York had ever seen, “No Governor could solve such a crisis alone; any Governor would need support from a wide range of sources.” Carey Aff., at ¶ 8. There could be no more critical resource in garnering such support than a trusted and competent Lieutenant Governor who shares the Governor’s confidences, loyalties and vision. This point was forcefully made by Former Governor Thomas E. Dewey, a Republican, who argued that a capable Lieutenant Governor was essential to the proper administration of government and that it was particularly important that the Lieutenant Governor be of the same party as, and of compatible views with, the Governor. In his 1953 Annual Message, Governor Dewey stated: “‘In our State the executive duties are so exceedingly heavy that an able Lieutenant Governor, holding the full confidence of his associates, is essential to the proper conduct of the people’s business. We should no longer risk the confusion and maladministration which might result from having the Governor of one party while the Lieutenant Governor leads 7


the opposition. We have seen enough of this in other countries where the multi-party system keeps such constant turmoil and struggle for advantage that government is in chaos and people turn away from free institutions.’” Paterson Aff., at ¶10 (quoting Governor Dewey). The same argument applies today. In the words of Governor Paterson: “I need [a Lieutenant Governor] I can trust, who shares and has access to the same confidential information and governmental considerations, who is part of the executive branch and its powers, and who can execute and implement decisions while representing and speaking for the Governor.” Id. It is for just such reasons that Governor Paterson chose Mr. Ravitch to fill the vacant office of Lieutenant Governor under Public Officers Law (“POL”) § 43. Lieutenant Governor Ravitch is the ideal candidate for this position given his considerable experience and success as a public servant and business leader. As attested by Former Governor Carey, Mr. Ravitch played a similarly crucial role in assisting Governor Carey during New York’s financial emergency in the 1970’s. Governor Carey appointed Mr. Ravitch to the chair of the New York City Urban Development Corporation in 1975, and in the words of the Former Governor himself, Mr. Ravitch “rescued the then insolvent UDC and was integral to our eventual success. His many contributions included being key in assembling and fortifying the various coalitions of government, business and labor that were formed and brought to bear to address an unending series of intractable problems and episodes of crisis.” Carey Aff., at ¶ 5. Because of his success in managing the UDC, Governor Carey subsequently relied on Mr. Ravitch to take on a task of even greater magnitude: the deteriorating financial structure of the Metropolitan Transportation Authority (“MTA”). As Chair of the MTA, Mr. Ravitch again succeeded despite the highly distressed state of the MTA at the time of his appointment, and he was able to secure new financing, build new railway lines, including the Metro North Railroad, and improve labor

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relations. Governor Carey reflects that “[h]is success at this task is most notable.” Carey Aff., at ¶ 6. This is why the Governor appointed Mr. Ravitch again to high public office, this time as Lieutenant Governor. Having assisted Governor Carey in solving the extraordinary financial crisis that faced New York in the 1970’s, Lieutenant Governor Ravitch is ideally situated to help the Governor and the State of New York today, “in an equally significant manner in an equally severe crisis.” Paterson Aff., at ¶ 8. Moreover, he “can do this most effectively as the Governor’s official second in command.” Carey Aff., at ¶ 11. Lieutenant Governor Ravitch has made it clear that he has no desire to hold or run for future political office. He will therefore be a credible bridge to the financial, business and labor communities in the State. His experience, and his knowledge both of the capital markets and the ways of government, will be invaluable to the Governor and thus to the People of the State. As Lieutenant Governor, Mr. Ravitch will share the Governor’s confidences and will speak for the executive branch, not as an advocate or as a private citizen but as the second ranking official of the government. See Paterson Aff., at ¶ 8; Carey Aff., at ¶ 11. B.

The Stay Ensures Clarity In The Gubernatorial Line Of Succession

Moreover, it is imperative that the State have a clear line of gubernatorial succession. See Paterson Aff., at ¶ 3. While clarity is especially crucial during a time of great crisis such as this, it is even more important given the current volatility of the State Senate. See Paterson Aff., at ¶ 6. As Governor Paterson recounts, at the time he decided to act to end the Senate stalemate by appointing Lieutenant Governor Ravitch, “there were two Senators claiming to be the Temporary President of the Senate, two Senators claiming the right to perform the duties of Lieutenant Governor, two Senators purporting to be in the line of the succession to the Governor, and two Senators who, ostensibly, would purport to exercise gubernatorial power if I were to be 9


effectively absent from the State.” Paterson Aff., at ¶4. This persistent and intractable conflict threatened a severe constitutional crisis should the Governor die, resign or be removed from office. Although the Senate stalemate appeared as of July 9 to be resolved for the time being, the Senate continues to be unstable and the struggle for power persists. As Governor Paterson notes, “on the first succeeding legislative day following the supposed Senate resolution, continuing political disputes in the Chamber impeded the Senate’s ability to pass critical legislation.” Paterson Aff., at ¶ 6. Lifting the stay would invite a return to the prior potential for grave uncertainty about the line of succession. Beginning in January 2009, the office of the Temporary President of the Senate has changed three times and it has been reported that it will change again at the end of the year. Moreover, Respondent Espada has already switched sides twice. There is no assurance that he will not do so again should he again see an opportunity to claim the temporary presidency of the Senate. Indeed, his continued presence in this case despite his switch back from the Republican Party to the position of Democratic majority leader suggests that he may not have resolved once and for all his partisan loyalties. The State cannot afford again to have two Senators simultaneously claiming the title to the Temporary Senate President in the case of another partisan deadlock. Given the instability in the Senate, there can be no assurance that yet another change will not happen in the interim. Thus, should the Governor become incapacitated while a preliminary injunction against Lieutenant Governor Ravitch’s appointment and exercise of duties were in effect, there is every reason to believe that a second debilitating contest for power would ensue; the stakes would certainly be higher. This harm must be avoided at all costs. Gubernatorial succession should not

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be in doubt, contingent upon the shifting stakes in a volatile and ongoing partisan battle in the Senate chamber. Contrary to the Respondents’ suggestions (see Lewis Aff., at ¶ 38), there is nothing undemocratic about the Governor ensuring an orderly succession through appointment of the Lieutenant Governor. The Governor has the mandate of the entire State, unlike the Temporary President of the Senate, who is elected from a single district. In Ward v. Curran, the Court observed that the Lieutenant Governor “has state-wide duties . . . which should be performed by an elected official in the state at large and not by one elected by the voters of a single senatorial district, as is the case of the temporary president of the senate.” 44 N.Y.S. 240, 241-242 (3d Dep’t 1943) (emphasis added). Moreover, Article IV, § 1 of the Constitution, which was amended to ensure that the Governor and Lieutenant Governor are elected together on a single ballot, makes it altogether appropriate that the Governor should select a successor who shares his outlook and loyalties. As Governor Carey explains, echoing Governor Dewey, “it is simply intolerable that [Respondents] would harbor the prospect of a successor to the Governor being someone who is hostile to his government objectives, someone who would have conflicting loyalties, and someone who would seek political advantage rather than combined effort.” Carey Aff., at ¶ 10. The stay should therefore remain in place to prevent the harm to the State that would be caused if the clarity provided to the line of succession by the appointment of Lieutenant Governor Ravitch were once again thrown into doubt. C.

The Status Quo Ante This Lawsuit Should Be Preserved So As To Avoid A Destabilizing Seesaw Effect Upon The State

The stay should remain in place to preserve the status quo and protect the State from the harm it would suffer if the question of whether it has a Lieutenant Governor or not were permitted to seesaw back and forth again while the constitutional questions raised here are finally 11


resolved. The State cannot afford the disorder that would result from such inconsistency and uncertainty. The instability, political machinations and disputes of the Senate have already cost the State many weeks of irreplaceable time in the race to combat the State’s mounting financial crisis. The State cannot afford to lose even one more day in its efforts to combat the precipitously worsening situation it faces. The trial court stated in its preliminary injunction ruling that, without the preliminary injunction sought by the Respondents, “the workings of an entire branch of government will be affected.” Order Entered July 22, 2009, Skelos v. Paterson, No. 13426/09 (Sup. Ct. Nassau Co.), at 18. As explained by Former Governor Carey, however, “the truth is the exact opposite. Allowing Mr. Ravitch to continue his essential work in assisting the Governor, as his Lieutenant, is critical to the executive branch’s efforts to resolve the current State crisis.” Carey Aff., at ¶ 12. Moreover, “[t]he alternative would compromise the powers of the executive which are part and parcel of the separation of powers so basic to our constitutional structure.” Id. The stay should remain in place to avoid the serious separation of powers question that would arise if two individual Senators were able to cripple the efforts of the Governor to exercise his statutory and constitutional duties in the absence of any final resolution of the issues on appeal. Moreover, to the extent that a stay of a preliminary injunction pending appeal is designed to maintain the status quo until the matters at issue are finally resolved, the status quo is that Mr. Ravitch is and has been the Lieutenant Governor since July 8, 2009. Since Respondents filed this lawsuit, the Lieutenant Governor has been in office performing his executive duties for all but two days. The Court was correct in granting the stay and should grant a continued stay pending appeal so that the urgent business of the State can continue to be conducted in an orderly

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manner free from impediment to the Lieutenant Governor’s exercise of his executive responsibilities. II.

RESPONDENTS WILL NOT SUFFER IRREPARABLE HARM IF THE STAY REMAINS IN PLACE The Respondent Senators will not suffer any harm, let alone any irreparable harm, if the

stay remains in place pending the resolution of this appeal. Respondents concoct elaborate scenarios suggesting they will somehow be deprived of their “freedom of political speech” if Lieutenant Governor Ravitch were to preside over the Senate, stating that Lieutenant Governor Ravitch might “refuse to yield to [Respondents] on the floor of the Senate” or “worse rule [one of them] out of order,” might deliver a “casting vote” in the case of a tie, or might “preclude a substantive matter from being addressed on the floor.” Lewis Aff,, at ¶¶39-42. Aside from being wholly speculative and conjectural, and constitutionally dubious,2 such imagined scenarios are wholly beside the point. The Senate is not currently in session and the new term does not commence until after the current schedule for briefing this appeal. And even if the Senate reconvenes for a special session, none of these imagined harms will transpire if the stay remains in place because Lieutenant Governor Ravitch will not preside over the Senate during the appeal process. As Governor Paterson states unequivocally in his affidavit, “I wish to make emphatically clear that during the pendency of this litigation and appeals, Lieutenant Governor Ravitch will not preside over the Senate.” Paterson Aff., at ¶ 11.

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Elrod v. Burns, 427 U.S. 347 (1976), the only authority cited by Respondents or the trial court, is of no assistance to Respondents. That case involved claims by civil service employees who were fired because they did not belong to the same political party as the presiding county sheriff. It does not suggest that a Senator has a free speech right to defy the procedural rules of the Senate or any other body where, as in court, speech is necessarily regulated. 13


That should be the end of the matter as far as any supposed irreparable harm to Respondents is concerned. In order to have standing, the Respondents must point to some peculiar and specific injury that they have suffered. A generalized grievance shared by the public at large or the legislature as a whole is not sufficient. See Point III.B, infra. And individual Senators have no personalized injury if Lieutenant Governor Ravitch does not preside over the Senate; they have no more standing than any other citizen to object to the appointment in the abstract or, given the constitutional principle of separation of powers, to the Lieutenant Governor’s exercise of his executive duties. Respondents are similarly incorrect in suggesting that they suffer supposed harm because any legislation passed under the auspices of the appointment would be void ab initio. See Lewis Aff., at ¶43; Ciampoli Aff., at ¶26. Contrary to Respondents’ intimations, the de facto officers’ doctrine clearly provides that acts performed by public officials are binding, even if those officials are later found not to have been properly appointed. See, e.g. Matter of County of Ontario v. Western Finger Lakes Solid Waste Mgt. Auth., 167 A.D.2d 848, 848-49 (4th Dep’t 1990) (upholding the validity of actions by a County Authority under the de facto officers’ doctrine, notwithstanding alleged irregularities in the manner in which a member officer was appointed); People ex rel. Devine v. Scully, 110 A.D.2d 733, 734 (2d Dep’t 1985) (“Under a long and unbroken line of authority, the official acts of a de facto judge are valid and binding on the public and interested third persons, including petitioner.”); Kessel v. Dodd, 46 A.D.2d 645, 646 (2d Dep’t 1974) (holding that the actions of an executive committee were authorized under doctrine of de facto officers, notwithstanding challenge to three members on committee, where members all possessed color of title); People ex rel. Griffing v. Lister, 106 A.D. 61, 61 (2d Dep’t 1905) (holding that a contract entered into by a town board was valid and binding because board

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members were de facto officers, despite a dispute over the legitimacy of their title to office). And the de facto officers’ doctrine plainly applies as much to statewide executive officials as it does to judges and county and state boards. See State ex rel. Knowlton v. Williams, 5 Wis. 308, 1856 WL 2062, at *4-5 (1856) (holding that legislation approved by Governor who was in unlawful possession of his office was nonetheless valid and effective under de facto officers’ doctrine) (cited with approval in In re Sherill, 26 Bedell 185, 212-213, 81 N.E. 124 (N.Y. 1907) (“But, though the appointment or election of a public officer may be illegal, it is elementary law that his official acts while he is an actual incumbent of the office are valid and binding on the public and on third parties.”)). The validity of any legislation passed by the New York legislature could therefore never be attacked on the basis that Mr. Ravitch’s appointment was improper. For example, in Morris v. Cahill, 96 A.D.2d 88, 92-93 (3d Dep’t 1983), the Court applied the de facto officers’ doctrine to reject a challenge to the validity of legislation passed during the tenure of a legislator whose appointment to fill a vacancy was allegedly invalid, holding, “[t]herefore, Tanksely was acting at least as a de facto officer in voting on the bond resolutions, i.e., he was in possession of his office and discharging his functions as a county legislator under color of appointment and authority. Consequently, under a long, unbroken line of authority, Tanksley’s de facto act in voting on the bond resolution was valid and binding as to the public and against interested third parties. “ Id. The Respondents thus cannot rely on the specter of invalid legislation to ground their argument of irreparable harm. Finally, contrary to Respondent’s contentions (Ciampoli Aff., at ¶24; Lewis Aff., at ¶34), the imperative for clarity in the gubernatorial line of succession is a factor that weighs in favor of the stay remaining in place, not against it. The stay preserves certainty about the line of

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succession in keeping with the structure of the Constitution, which makes the Governor and Lieutenant Governor a single electoral unit and ensures compatibility between their visions and loyalties. If the stay is lifted, by contrast, the succession would be thrown once again into the doubt that helped triggering further power struggles, uncertainty and crisis in the Senate as partisan competitors vied for the mantle of Temporary Senate President and the People’s work ground to a halt amidst a worsening crisis. See point II.B, supra. For all these reasons, the balance of equities weighs sharply in favor of Appellants and the public interest clearly warrants keeping the stay in place. III.

THE PRELIMINARY INJUNCTION WAS IMPROPERLY ISSUED AND IS THEREFORE PROPERLY STAYED. A.

CPLR § 6311 Prohibits The Trial Court From Issuing The Injunction

As discussed in Appellants’ initial papers, the relief sought by Respondents in their Order to Show Cause asked the trial Court to do what CPLR § 6311 expressly forbids any trial court outside the Third Department from doing – enjoin a state officer from performing his statutory duties. See, e.g., Bull v. Stichman, 72 N.Y.S.2d 202, 206 (Sup. Ct. 1947), aff’d 273 A.D. 311, aff’d 298 N.Y. 516 (N.Y. 1948) (predecessor to CPLR § 6311(1) requires that a temporary injunction against public offices located in Albany issue only out of the Third Judicial Department) (cited with approval in New York Central Railway Co. v. Lefkowitz, 12 N.Y.2d 305 (N.Y. 1963)). Contrary to the Respondents’ claim (Ciampoli Aff. ¶6), CPLR § 6311 is not merely a venue provision. Rather, the “inhibition of the statute is jurisdictional and an order not granted as prescribed is a nullity.” People ex rel. Derby v. Board of State Canvassers, 84 Sickels 461, 29 N.E. 358 (N.Y. 1891) (“We think that this provision of the Code [the historical predecessor to CPLR 6311] is applicable to all cases where the object of the proceeding is to restrain state officers or boards, while engaged in the performance of a legal or statutory duty.”) 16


(cited in Queens-Nassau Transit Lines v. Maltbie, 51 N.Y.S.2d 841, 849 (N.Y. Sup. 1944) (applying predecessor to CPLR § 6311 and holding that “[t]he principal office of the respondent is in the City of Albany and this proceeding in the nature of prohibition, which seeks to restrain and enjoin state officers, must be brought in the Third Judicial Department which embraces the City of Albany.”)). Respondents’ other arguments seeking to avoid the clear language of CPLR § 6311 are circular and illogical. Respondents suggest they may avoid CPLR § 6311 merely because one of their arguments is that Lieutenant Governor Ravitch’s appointment was improper. Lewis Aff., at ¶¶24-27; Ciampoli Aff., at ¶7. But if CPLR § 6311 is read not to apply any time an officer’s authority is challenged, any plaintiff seeking to enjoin public officials from exercising their duties could avoid its constraints simply by pleading that the officer was acting ultra vires, in which case the rule would have little meaning. Donnely v. Roosevelt, 259 N.Y.S. 355, 356 (N.Y. Sup 1932), is directly on point. In that case, the petitioner sought an order restraining the Governor from removing the mayor of New York City, arguing that the statute authorizing the Governor to remove the mayor was constitutionally invalid as a result of a recent constitutional amendment that had empowered the City to make laws for the removal of its own officers, including the mayor. The Court, however, rejected the petitioner’s request, holding that pursuant to the section 879 of the Civil Practice Act (the predecessor to CPLR 6311) it had “no authority to restrain a state officer from the performance of a duty imposed by statute,” regardless of the ultimate constitutionality or unconstitutionality of that statute, because such injunctive relief could only issue from the proper term of the court. Id. Moreover, the sound policy behind CPLR § 6311 applies specifically in this context, where the preliminary injunction that issued was targeted solely at a state officer and solely at the

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performance of his duties. A preliminary injunction against a public officer pertains to a public seat of office and must necessarily be issued without a full opportunity to hear evidence and argument. It is therefore appropriate that such temporary and preliminary relief issue only out of the judicial department where the public officer is located or the relevant conduct occurred. Finally, Respondents repeatedly confuse the Governor’s statutory duty with Lieutenant Governor Ravitch’s statutory duty. See Ciampoli Aff., at ¶7. The preliminary injunction challenged here does not enjoin Governor Paterson from appointing Lieutenant Governor Ravitch; it merely enjoins Lieutenant Governor Ravitch from performing his statutory and constitutional duties. Thus, contrary to Respondents’ claims, the question of whether or not Governor Paterson had a duty to fill the lieutenant gubernatorial vacancy is irrelevant to the CPLR § 6311 analysis. The question is whether Lieutenant Governor Ravitch may be enjoined from performing his own statutory duties, and since that is what the preliminary injunction here seeks to do, a trial court outside the Third Department had no power to do it. For all these reasons, the trial court was without power to grant the preliminary injunction, and thus that injunction is properly stayed. B.

The Respondents Lack Standing To Seek The Injunction

The preliminary injunction should be stayed for the further reason that Respondents lack standing to pursue this lawsuit. Standing requires particularized allegations of personal injury suffered by the plaintiffs in an action. It is difficult to see any basis for standing in this case. The plaintiffs here are two senators suing in their own behalf, not on behalf of a putative class. They are members of the legislative branch, not the executive. One has jumped parties twice, including after filing his complaint, and in so doing abandoned all pretense of title to the Temporary Presidency of the Senate—a series of events eliminating any supposed ground of personal injury. Neither plaintiff has ever submitted any affidavit or line of evidence in this case. 18


As their lawyers’ affidavits indicate, they they have no confirmed plans to be in session during the next few weeks despite the fact that the state is in a financial crisis. It is very hard to see how they are harmed. Nor, in this factual vacuum, can any injury to the plaintiffs here be inferred as a matter of law. Standing may not arise from any mere injury to the citizenry at large or the legislature “as a whole.” Respondents, however, have not suffered any particularized injury from the appointment of the Lieutenant Governor. The purported harms identified by the Respondent and the trial court are suffered, if at all, only by the citizenry at large or the legislature as a whole. As made clear by the Court of Appeals in Silver v Pataki, and Posner, such harms do not amount to the type of “direct and peculiar injury” necessary to confer standing. Silver v. Pataki, 96 N.Y.2d 532, 539 (N.Y. 2001) (a “lost political battle” does not confer standing where plaintiffs “suffered no direct personal injury beyond an abstract institutional harm.”); Posner v. Rockefeller, 26 N.Y.2d 970 (N.Y. 1970) (Plaintiff Assemblymen do not have standing, whether as taxpayers, citizens or Assemblymen, to challenge validity of appropriation bills enacted into law and submitted by the Governor); Respondents argue that they will be injured if the Senate is presided over “by an interloper” and because any legislation passed under the auspices of the appointment will be “void ab initio.” These claims are baseless in light of Governor Paterson’s plain proclamation that Lieutenant Governor Ravitch will not preside over the Senate during the appeal. See Point II, supra. But in any event, these alleged harms are general grievances about diminution of institutional power shared in common by the Senate as a whole; neither is peculiar to either of the individual Respondent Senators. They thus are incapable of conferring standing here. See, e.g., Silver, 96 N.Y.2d at 539, n. 5 (“plaintiff’s allegation of injury to the Assembly as a whole

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… is no more than an abstract institutional injury that fails to rise to the level of cognizable injury in fact.”); Urban Justice Center v. Pataki, 38 A.D.3d 20, 25 (1st Dep’t 2000), lv. denied, 8 N.Y.3d 958 (N.Y. 2007) (minority legislators lack standing where they alleged harms “involving only a type of institutional injury (the diminution of legislative power)”); Raines v. Byrd, 521 U.S. 811, 829 (1997) (“the abstract dilution of institutional legislative power” is insufficient to confer standing); Posner v. Rockefeller, 26 N.Y.2d 970 (N.Y. 1970) (Plaintiff Assemblymen do not have standing, whether as taxpayers, citizens or Assemblymen, to challenge validity of appropriation bills enacted into law and submitted by the Governor). Moreover, contrary to the trial court’s contention (Order at 14-15), the appointment in no way interferes with the power of the Senate to appoint its Temporary President. Shortly after the appointment of Lieutenant Governor Ravitch, the Senate restored Senator Malcolm Smith to the position of Temporary President of the Senate, as Respondents themselves emphasize (Ciampoli Aff., at ¶13; Lewis Aff., ¶32). Senator Smith continues to occupy that position today—and notably he does not appear as a party to this lawsuit. Even if the appointment had somehow interfered with the Senate’s power to appoint a President, this power does not belong to either of the individual Respondents but rather to the entire Senate Chamber and Respondents may not speak for, or bring an action on behalf of, the Senate as a whole or their fellow legislators. See, e.g., Society of the Plastics, Society of the Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 773 (N.Y. 1991) (stating that there is a “general prohibition on one litigant raising the legal rights of another”) (cited in Urban Justice Center, 38 A.D.3d at 27 (“legislator plaintiffs may not raise legal grievances on behalf of others”)). Respondents have not identified any actual vote cast by either Respondent, whether for the Senate Temporary President or otherwise, that has been “nullified” or “affected” by the appointment of the Lieutenant Governor. Cf. Raines, 521

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U.S. at 829 (even members of Congress who actually voted for an act later subject to line item veto did not have standing to challenge the constitutionality of that Act). Dodak v. State Admin. Bd., 441 Mich. 457 (1993), relied on by the trial court (Order at 14), is of no avail to Respondents. In that case, the Court denied the House Speaker and Minority Leader standing to challenge allegedly improper transfers of appropriated funds from one governmental department, rejecting the argument that these plaintiffs had standing on a theory of usurpation of power or any other basis because their ability as legislators to override a gubernatorial veto in respect of such appropriations had been affected by the challenged transfers. Id. at 561 (holding that assemblyman who was member of appropriations committee with the power to allocate funds was the only plaintiff legislator with standing to challenge alleged invalid transfer of such funds). Here, as in Dodak and Silver, Respondents’ complaint amounts to, at most, one of diminution of institutional power and purported injury suffered by the Senate as a whole and two individual Senators lack standing to bring it. The one individual Senator who might conceivably have standing to bring this lawsuit is the Temporary President of the Senate. Neither of the Respondents, however, is the Temporary Senate President (Senator Espada relinquished his claim to that title after filing this lawsuit). That position belongs to Senator Smith, and he is not a party to this action. The Respondents thus lack standing to bring this lawsuit and the preliminary injunction was therefore improperly granted. C.

A Quo Warranto Action By The Attorney General Is The Exclusive Means To Challenge The Appointment

Plaintiffs further lack standing to bring this action, providing an additional reason to continue the stay, because an action by the Attorney General in the nature of quo warranto, statutorily codified under New York Executive Law § 63-b, is the exclusive means to adjudicate 21


title to public office. Delgado v. Sutherland, 97 N.Y.2d 420, 424 (N.Y. 2002). Moreover, contrary to the suggestion of the trial court (Order at 13), the exclusive remedy of quo warranto is not limited to “contested elections” but extends also to actions challenging the purported validity of an appointment to office. Numerous cases have held that quo warranto is the exclusive remedy for challenging appointments to fill a vacancy. For instance, in Morris v. Cahill, the Court held that plaintiffs, including the minority leader of the County legislature, were precluded from challenging the appointment of a replacement County legislator because this claim was “barred under the traditional and long-prevailing rule that an action in the nature of quo warranto by the Attorney General … is the exclusive means of trying title to public office.” 469 N.Y.S.2d at 233; see also People ex rel. Lazarus v. Sheehan, 128 A.D. 743 (3d Dep’t 1908) (where party is wrongfully removed from office, and the office was filled by appointment, quo warranto is the proper remedy); People ex rel. Requa v. Noubrand, 32 A.D. 49 (2d Dep’t 1898) (where party claims to fill vacancy which the law deems nonexistent, quo warranto is applicable remedy); People ex rel. Baldwin v. McAdoo, 110 A.D. 432, 435 (2d Dep’t 1905) (plaintiff’s remedy is quo warranto and not mandamus where two policemen appointed to fill one vacancy in inspector’s office). Thus, the appointment of Lieutenant Governor Ravitch may be properly challenged only via a quo warranto proceedings brought by the Attorney General. The instant action is not a quo warranto proceeding and the Attorney General is not a party. Accordingly, Respondents’ request for a preliminary injunction was improperly granted and the stay of that ruling should remain in place.

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IV.

RESPONDENTS HAVE FAILED TO DEMONSTRATE ANY CLEAR AND CONVINCING LIKELIHOOD OF SUCCESS Contrary to Respondents’ arguments, the Governor’s appointment of Lieutenant

Governor Ravitch was clearly a valid exercise of the Governor’s power under both the Constitution and POL § 43. The preliminary injunction below was thus improperly issued because Respondents failed to show clear and convincing evidence of likelihood of success on the merits. POL § 43 provides without limitation that the Governor “shall” fill all vacancies in elective offices if there is “no provision of law for filling the same.” In this case, both criteria are clearly satisfied. First, while Respondents remarkably have contested the point, the office of Lieutenant Governor is undoubtedly an elective office. Article IV, § 1 of the Constitutional states the Lieutenant Governor is elected “by each voter” and the “respective persons having the highest number of votes cast jointly for them for governor and lieutenant governor respectively shall be elected.” And, second, there is no other provision of law for filling a vacancy in the Lieutenant Governorship. POL § 41 provides for filling a vacancy in the offices of Attorney General or Comptroller by joint legislative resolution; under the canon expressio unius exclusion alterius, this provision plainly implies that the Lieutenant Governorship may not be filled by legislative resolution. POL § 42 provides for filling a vacancy in a U.S. Senate or House seat including by special election, but carves out the lieutenant governor expressly from this possible form of replacement. Likewise, contrary to Respondents’ and the trial court’s contentions, Article IV, § 6 of the Constitution does not provide for the filling of a vacancy in the office of Lieutenant Governor. It provides only that, in the case of a “vacancy in the office of lieutenant-governor, 23


the temporary president of the senate shall perform all the duties of the Lieutenant Governor during the vacancy” (emphasis added). This does not constitute a “provision of law for filling” the office of Lieutenant Governor under POL § 43. When the Constitution speaks of filling a vacancy, it speaks in clear terms: it uses the term “becomes,” as in the provision of Article IV, § 5 that specifies that, “[i]n case of the removal of the governor from office or of his or her death or resignation, the lieutenant-governor shall become governor for the remainder of the term.” But neither Article IV, § 6, nor any other provision of the Constitution, speaks of the Temporary Senate President “becoming” the Lieutenant Governor. Nor could it, for the Temporary Senate President, while authorized by the Constitution to “perform” certain duties as a caretaker, does not cease to be a Senator under Article IV, § 6, and cannot “become” Lieutenant Governor while remaining a sitting Senator without violating the principle of separation of powers. Moreover, the caretaker role contemplated by Article IV, § 6 is applicable solely “during the vacancy”— which necessarily implies that the vacancy will end at some point. Article IV, § 6 does not purport to define when or how that vacancy will end. A different provision of the Constitution, namely Article XIII, § 3, is the provision that specifies how how vacancies in office will be filled, and that provision of the Constitution expressly assigns that task to the Legislature. The language of the provision is mandatory: “The legislature shall provide for filling vacancies in office . . . .” Article XIII, § 3 (emphasis added). Article XIII, § 3’s mandate, unlike that of Article IV, § 6, is to actually fill vacancies, not just to provide for a caretaker to perform the functions of the office while such vacancies remain open. POL § 43 is one of the comprehensive set of legislative enactments that fulfills the Legislature’s obligations under Article XIII, § 3. And nothing in the Constitution excludes the Lieutenant Governor from the broad reach of POL § 43.

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There is nothing inconsistent with Article IV, § 6 providing a “caretaker” role for a limited interim period while POL § 43 (implementing the mandate of Article XIII, § 3) provides for the actual filling of the vacancy. The Governor’s reading is the only way to harmonize Article IV, § 6 with Article XIII, § 3’s requirement that the legislature provide for the filling of vacancies. Indeed, Respondents have cited no legislative history suggesting that Article IV, § 6 was intended to partially repeal Article XIII, § 3, or make POL § 43 partially unconstitutional. It is important to note that POL §§ 41-43 were amended by the legislature precisely because a dispute had arisen regarding the consequence of a vacancy in the office of Lieutenant Governor. In Ward v. Curran, 44 N.Y.S.2d 240 (App. Div. 3rd Dept.), aff’d, 291 N.Y. 642 (1943), the Appellate Division addressed the consequences of a vacancy caused by the death of Lieutenant Governor Thomas Wallace. At that time, POL § 42 contained no exclusion for the office Lieutenant Governor. The question before the court was whether POL § 42’s provisions required a new Lieutenant Governor to be voted for in the next general election. In an opinion issued prior to the Appellate Division’s decision, which Respondents rely upon heavily (Stay Opp. at 5-6), the Attorney General had argued that an election was unnecessary because (1) there was no vacancy in the Lieutenant Governorship, since the Temporary President of the Senate was carrying out his duties; and (2) POL § 42 made no specific mention of the Lieutenant Governor. 1943 Op. Atty. Gen. 378. Ward rejected these arguments, holding that POL § 42 at that time was applicable to the office of Lieutenant Governor and required a mid-term election. There are four points of crucial significance come out of Ward, and they point in the opposite direction from Respondents’ arguments. First, the Ward decision would have been impossible if, as the Attorney General argued at the time, there was “no vacancy” in the office of

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Lieutenant Governor. Thus, Ward clearly stands for the proposition that the performance of duties by the Temporary President of the Senate is not the same as filling a vacancy in the Lieutenant Governor’s Office. Second, Ward found that the then-existing version of POL § 42 applied to the office of Lieutenant Governor despite the lack of a specific reference to that office. In other words, Ward found that a then open-ended, “catch-all” provision for filling vacancies in elected offices, enacted by the Legislature pursuant to its constitutional authority to provide for filling of vacancies, authorized the filling of the position of Lieutenant Governor, even though the office of Lieutenant Governor was not expressly mentioned in the statute at the time.3 Third, Ward ordered a special election despite the fact that the Constitution at the time provided, as it does today, that the Lieutenant Governor was to be elected every four years at the same time as the Governor. Thus, Ward clearly held that the presence of a constitutional provision for simultaneous election of Lieutenant Governor and Governor was no obstacle to the filling of vacancies in the office of Lieutenant Governor through whatever method the Legislature had provided for in the POL, even if that meant filling a vacancy during the period between quadrennial elections. Fourth, and most important, the Legislature was fully aware of these holdings when it amended POL § 41-43 so as to word them in their current forms. In response to Ward, the legislature excluded the offices of Lieutenant Governor and Governor from POL § 42, but made no change to POL § 43, which remained as a catch-all provision that, pursuant to Ward, would immediately and clearly apply to the office of Lieutenant Governor. Nor did the legislature say 3

Significantly, in his pre-Ward opinion, the Attorney General contended that the same arguments against application of POL § 42 applied directly to POL § 43 as well. See 1943 Op.Atty.Gen. at 382. In the words of the Attorney General, “there is no distinction in language between [section 43] and section 42 of the Public Officers Law.” 26


anything at the time to suggest that the Lieutenant Governor was excluded from the ambit of POL § 43 because some other provision of the Constitution (such as Article IV, § 6, which was also enacted post-Ward) addressed filling such vacancies. In light of Ward, the legislature’s silence cannot be read as an intention to exclude the Lieutenant Governor from the scope of POL § 43. Respondents and the trial court pervert Ward by suggesting that it assumes that the Legislature, aware that POL § 43 literally applies to vacancies in the office of Lieutenant Governor, intended that POL § 43 would not so apply, yet remained completely silent about this intent during all the debates leading up to the post-Ward amendments. For these reasons, Respondents have failed to meet their heavy burden to show, by clear and convincing evidence, that their challenge is likely to succeed on the merits. Indeed, their novel constitutional theory is contrary not only to the text but also to the structure of New York’s constitutional scheme. Article IV, § 1, of the Constitution requires that the Governor and Lieutenant Governor run on the same ticket and thus be from the same political party. But the Temporary President of the Senate might well not be from the same political party as the sitting Governor—as would have been the case had Senator Espada continued to claim that he was a Republican and the occupant of the position of Temporary Senate President. Thus, requiring the Temporary President of the Senate to perform the duties of Lieutenant Governor for the duration of a gubernatorial term, without giving the Governor any opportunity to fill the vacancy, would frustrate both the operation of Article IV, § 1 and the will of the statewide electorate that originally chose the Governor and also chose a member of the Governor’s political party to be Lieutenant Governor. As Governor Dewey noted, “there is a great advantage in being able to entrust many of the complex administrative tasks of the Governor to an able Lieutenant Governor,” but this would not be possible “if the Lieutenant Governor was required, as a matter

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of party loyalty, to lead the minority party.” Gov. Thomas E. Dewey, Message of the Governor in Relation to Proposed Constitutional Amendment for Joint Election of Governor and Lieutenant Governor, at 4 (1953). Respondents’ position would result in the anomalous result that the successor to the Governor could be a member of an opposing political party, elected by the citizens of a single county, without any connection to the executive policies that the entire State’s voters chose at the last quadrennial election. That is not the structure that the framers of the Constitution intended. In the end, Respondents’ Opposition boils down to the argument that Governor Paterson’s appointment of Lieutenant Governor Ravitch is invalid because it has never been done before. But “it has never been done before” is not a theory of constitutional interpretation; if it were, we would not have had such bold executive action as the Louisiana Purchase or the dispatch of national guardsmen to ensure the integration of the Little Rock public schools. Moreover, the reason no Governor has ever exercised the power conferred by POL § 43 to appoint a Lieutenant Governor is that, prior to June of this year, the urgent need to do so had never arisen. Never before has the State been faced simultaneously with a financial crisis of unprecedented magnitude, a political crisis whereby title to the office of Temporary Senate President was in sharp and protracted dispute, and a constitutional crisis whereby the Governor was suddenly confronted with the prospect of being forced to rely on a Lieutenant who did not share his political allegiances, loyalties or outlook, contrary to the basic constitutional principles of the State’s executive structure. This improbable confluence of events ultimately led the Governor to take the decisive action he took; but just because the conundrum faced by Governor Paterson in early June was historically unprecedented, does not mean that the power he relied upon in acting to resolve the multiple crises confronting the State did not exist. The Governor’s

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action was lawful and constitutional and Plaintiffs cannot show likelihood of success on the merits. CONCLUSION For the foregoing reasons, this Court should grant a stay pending final resolution on appeal of the preliminary injunction issued by the trial court below.

Respectfully submitted, QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP

Kathleen M. Sullivan Faith E. Gay Robert Juman 51 Madison Avenue 22d Floor New York, NY 10022 (212) 849-7000 Counsel for Appellants Date: July 28, 2009

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Reply Memorandum of Law In Support of Motion for Interim Stay and Expedited Appeal