In Latest Ravitch Court Argument, Judge Smith Floats Himself for LG

ALBANY—The seven judges of the State Court of Appeals peppered attorneys for David Paterson and Dean Skelos with questions as they argued the constitutionality of Richard Ravitch's appointment as lieutenant governor.

On of the lighter comments came from Judge Robert Smith, as he parsed an argument made by Paterson that Skelos did not have sufficient standing to bring the case. (Both sides said they thought the case should be decided on its larger merits, not on the issue of standing.) He presented a scenario to Paterson's attorney Kathleen Sullivan where someone walked into the chamber and presided. Would he as a senator have the power to bring a suit against this?

She argued he would not.

"Well maybe I should try it," Smith said, to laughs. "I could be lieutenant governor."

The arguments made by both sides have mostly been aired in lower courts; Paterson claims he has authority under a catch-all provision of the Public Officers Law and a constitutional mandate to look to statute for guidance. Skelos claims that the Constitution provides for succession and has the State Senate president assume the duties of the lieutenant governor. So far, lower courts have sided with Skelos.

Chief Judge Jonathan Lippman grilled David Lewis, Skelos' attorney, as to why the plain language of the statute did not apply in this instance. Smith's questions were more harshly directed toward Sullivan.

After the oral arguments--which are built on copious amounts of briefs--each side said it was "confident" the ruling would go its way. Paterson's counsel, Peter Kiernan, said the governor has suggested a bill that would amend the Public Officers Law to allow for the appointment of a lieutenant governor with the consent of the Senate; Skelos echoed his argument and said he believed such a change could not be legally made in statute, but would require a Constitutional amendment.

A decision on the case is expected in the next two weeks, perhaps as early as Monday.