ALBANY—Buried in his 20-page decision enjoining Richard Ravitch from acting as lieutenant governor, Supreme Court Justice William LaMarca addressed an argument by David Paterson's attorneys that only Andrew Cuomo, as attorney general, had standing to sue over the governor's appointment of Ravitch. In LaMarca's view, at least one avenue to Cuomo's involvement is closed.
Executive Law § 63-b provides that the "Attorney General may maintain an action, upon his own initiative or upon the complaint of a private person, against a person who usurps, intrudes into, or unlawfully holds or exercises within the state a franchise or a public office…" This statute is a codification of the common law quo warranto action by the Attorney General to challenge the results of an election (Delgado v Sutherland, 97 NY2d 420, 741 NYS2d 171, 767 NE2d 662 [C.A. 2002]). Such challenges are ordinarily based on voting machine malfunctions or occasionally voter fraud. In quo warranto, the Attorney General performs both an investigative and a screening function (Id). The exclusivity of quo warranto allows the Attorney General to investigate election challenges promptly and also "avoids the risk of leaving the contested office vacant for possibly a protracted period while the election result is being litigated through the courts…" The present action challenging the Governor's power to appoint a lieutenant-governor does not involve a contested election. Accordingly, defendants' motion to dismiss the complaint on the ground that a quo warranto action by the Attorney General is the exclusive remedy is denied.
Cuomo said it would be "not constitutional" to appoint a lieutenant governor two days before Paterson did, but has not weighed in on the legal case since. Legal experts say Cuomo could still file an amicus brief or otherwise weigh in.