Dissident Senator Pedro Espada Jr., D-Bronx, rejoined his fellow Democrats yesterday, apparently ending a leadership dispute that had stalled Senate legislative business for more than a month.
However, as Democrats celebrated in Albany, the settlement left a major item of unfinished legal business: the validity of Richard Ravitch's appointment as New York's lieutenant governor, which will be the subject of a court hearing in Mineola this morning.
Mr. Espada's alliance with the Senate's 30 Republicans had created a 31-31 stalemate, prompting Governor David A. Paterson on Wednesday to appoint Mr. Ravitch to fill the lieutenant governor's post until the end of 2010. The slot had been vacant since March 2008.
Mr. Ravitch, 76, was sworn in at 8:40 p.m. Wednesday in a Brooklyn steak house. Meanwhile, lawyers for Senators Dean Skelos, R-Rockville Centre, and Espada were driving to Supreme Court in Mineola where they argued on Wednesday night that Mr. Ravitch's appointment was a "blatant violation" of the state Constitution.
At 12:23 a.m. yesterday, Supreme Court Justice Ute Wolff Lally (See Profile), the judge on call, issued a temporary restraining order against the appointment. She scheduled a hearing for 10 a.m. this morning at which Republicans said they would request a permanent injunction to prevent the "interloper" Mr. Ravitch from taking office.
Justice Leonard Austin (See Profile), of the Appellate Division, Second Department, late yesterday afternoon lifted the stay but said the hearing would proceed before Justice William LaMarca (See Profile) on the merits of the governor's action.
"Justice Austin's ruling gives us a chance to make our argument that the governor was entitled constitutionally [to make the appointment] and that this case should never have been brought in Nassau County," Kathleen M. Sullivan, a partner at Quinn Emanuel who represented Mr. Paterson, said yesterday at a news conference on the courthouse steps in Mineola.
Justice Lally, she said, "improvidently" signed off on the temporary restraining order, but she declined to speculate as to why the motion was brought in Nassau.
"It's very interesting that anyone would drive through the night to file in Nassau County when there are perfectly good courts in Albany," she said.
Democratic senators have accused their Republican rivals of judge shopping. Nassau is Mr. Skelos' home county, and Justice Lally is a Republican.
Ms. Sullivan said she fully expected Mr. Ravitch to execute his duties as lieutenant governor, but acknowledged she would have to make that case to Justice LaMarca.
"The governor was empowered to do what he did," she said.
A spokeswoman for Mr. Paterson, Marissa Shorenstein, said the apparent resolution of the Senate power struggle would not alter the governor's determination for Mr. Ravitch to serve as lieutenant governor or the governor's defense in court of the appointment against a Republican challenge.
Democratic Detente
Mr. Espada formally ended his month-long defection from his party brethren by rejoining the Democrat conference and agreeing to become majority leader of the Senate.
Mr. Espada acknowledged that the power struggle had resulted in "chaos" and "dysfunction" in the Senate, but that all members will benefit from a more equal distribution of power and resources.
"To all 19.5 million New Yorkers, we apologize," said Senator John L. Sampson, D-Brooklyn, who has been acting as the leader of the Democratic conference.
Thanks to the votes of Senate Republicans and another dissident Democrat, Senator Hiram Monserrate, D-Queens, Mr. Espada had been elected Senate president pro tem on June 8. With a 32-30 vote, Mr. Skelos was elected Senate majority leader. Mr. Monserrate later switched back to the Democrats, creating the tie.
Democrats insisted both votes were illegal and that a Democrat, Senator Malcolm Smith of Queens, remained the rightful president pro tem and majority leader of the chamber.
Yesterday, Mr. Smith relinquished the majority leader's title to Mr. Espada as a price for Mr. Espada rejoining the fold and restoring a 32-30 Democratic majority. There was speculation in other news reports that Mr. Espada eventually would relinquish the majority leader's job to Mr. Sampson.
For now, at least, Mr. Skelos again is minority leader.
"As Democrats, we have differences of opinion, different concerns," Mr. Smith said. "Yet at the end of the day, Democrats always come together."
Earlier, Mr. Paterson defended the legality of his appointment of Mr. Ravitch, the former head of the state Urban Development Corp. and the Metropolitan Transportation Authority.
The governor maintains state Public Officers Law §43 empowers him to fill some vacant elective posts until the next election and that nothing in statute or the state Constitution explicitly names lieutenant governor as a position he cannot fill.
Republicans claim the lieutenant governor must be elected at the same time as the governor, as Mr. Paterson was with Eliot Spitzer. Mr. Spitzer resigned in March 2008 after a prostitution scandal.
"It is not the clearest delineation of duty that the Constitution can find," Mr. Paterson said at a Capitol news conference in which he introduced Mr. Ravitch as lieutenant governor. But he said he was ready to "demonstrate to the court that this is a legal, constitutional appointment to the office of lieutenant governor."
Republicans said they would not recognize Mr. Ravitch if he had attempted yesterday to take the podium of the Senate, where the lieutenant governor is presiding officer. Mr. Paterson said he would not press the issue due to the ongoing litigation and honor the courts' "right to make a determination" on the validity of Mr. Ravitch's appointment.
"With respect to the other parties that have brought an injunction, we are not going to try to engage in flaunting an appointment," Mr. Paterson said.
The governor said state and local governments desperately need Senate passage of more than 100 bills providing for county sales taxing authorization, low-cost electricity assistance for businesses and other economic programs. He also said the Senate will be needed in the coming months to make deep budget cuts to compensate for a 36 percent fall-off in state revenues over the first three months of the state's current fiscal year.
The governor insisted that the faction that controls the Senate did not interest him as much as designating a lieutenant governor to be next in the line of succession if Mr. Paterson is unable to serve and having a presiding officer again in the Senate.
"[I]f I were to become incapacitated or in some way couldn't serve, then it's not clear who would be the next acting governor," Mr. Paterson said.
He maintained he was not appointing Mr. Ravitch to act as a tie-breaking vote in the Senate. Legislative lawyers have long debated whether the lieutenant governor can break ties on legislation or only in votes on procedural matters.
"The lieutenant governor cannot cast a vote on substantive issues," Mr. Paterson said yesterday.
In brief remarks yesterday in the Senate, Mr. Skelos said Republicans continue not to recognize Mr. Smith nor his designee as president pro tem of the chamber. Nor do Republicans believe Mr. Ravitch was properly appointed as lieutenant governor, Mr. Skelos said.
In a statement released later, Mr. Skelos said that while the Senate leadership dispute was resolved with Mr. Espada's return to the Democratic conference, Republicans will "continue to be a strong voice for taxpayers in this state."
The governor also took a passing shot at Republicans for filing Skelos and Espada v. Paterson in Supreme Court in Nassau County, a traditionally Republican county instead of Supreme Court in Albany, a staunchly Democratic county where the bulk of actions against the state and state officials are brought.
"The parities know that actions against public officials are brought in Albany, so we are saying it is the wrong jurisdiction," Mr. Paterson said.
The Republicans maintained they brought the suit before Justice Lally because Nassau is the home county of the lead plaintiff, Mr. Skelos.
Joel.Stashenko@incisivemedia.com, Vesselin.Mitev@incisivemedia.com
