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July 9, 2009 4:45 PM

Quinn Emanuel Lawyers Get Involved in Albany Circus

Posted by Rachel Breitman

After weeks of gridlock between the warring political factions in the New York state senate, it seems that Governor Paterson's appointment of a new lieutenant governor has only heightened the legal drama upstate.

As The New York Law Journal reports, senate Republicans won at least a momentary victory late Wednesday when a judge on Long Island issued a temporary restraining order barring Paterson's designated second-in-command, former MTA executive Richard Ravitch, from taking office. But Thursday a ruling by a state supreme court judge overturned the order. The two sides are due back in court Friday.

On Thursday the governor's legal team, helmed by two Quinn Emanuel Urquhart Oliver & Hedges lawyers held a press conference to argue that Ravitch's appointment is perfectly valid.

Faith Gay, cochair of the firm's white-collar and corporate investigations practice group, and Kathleen Sullivan, chair of the firm's national appellate practice, are representing the governor against the Republican's legal challenge. Thomas Gleason, a partner at Gleason, Dunn, Walsh & O'Shea in Albany who frequently serves as outside counsel to the governor, Davis Wright Tremaine partner Victor Kovner and Columbia law school professor Richard Briffault have each provided additional legal advice on the matter.

"It's completely lawful and constitutional," Sullivan said at the press conference discussing the move to fill the lieutenant governor's post, which has remained empty since former governor Eliot Spitzer resigned in March 2008. She says that the Republican's restraining order came too late to preempt the appointment. "Richard Ravitch has been duly appointed and is already serving as lieutenant governor."

Paterson had sought external counsel from the Quinn Emanuel team after Attorney General Andrew Cuomo refused to support his appointment earlier in the week. Cuomo maintains that the move is unconstitutional.

A number of legal scholars have also questioned the appointment.

"The New York constitution does not have a provision allowing for filling a vacancy in the office of the lieutenant governor," says Albany Law School professor Patricia Salkin, who adds that when there is no lieutenant governor, the senate appoints a temporary president who could step in if the governor is unable to perform his duties. There is debate over whether Senator Pedro Espada, Jr., the Bronx Democrat who is the putative ringleader of the current circus, can legitimately fill the position, which he assumed after throwing in his lot with the Republicans in early June. Espada's maneuver created a 31-31 deadlock in the Senate.

But Jenner & Block litigation partner Jeremy Creelan says there is a legal loophole that could allow the governor's appointment to move forward. In a Daily News Op-Ed last month,  Creelan encouraged Paterson to appoint a lieutenant governor, citing Section 43 of the state Public Officers Law, which allows the state executive to appoint someone to fill a vacancy until voters could choose a replacement.

Salkin says the constitution would likely trump the Public Officer's Law, since it is more specific and up-to-date, but acknowledges that Paterson's lawyers still have a fighting chance.

"Do I think it was a bad move?" she asked. "Not at all, though personally, I don't think it's constitutional."

Meanwhile, Paterson's lawyers took issue with the senate Republicans' legal counsel John Ciampoli, who drove from his Albany office to Nassau County late Wednesday to get the restraining order from Judge Ute Lally. Ciampoli did not return calls for comment. 

"How wrongful was it to bring this case after midnight in Nassau County Supreme Court?" Kovner tells The Am Law Daily. Nassau County, the location for a hearing on the appointment on Friday, is the home turf of Senate Republican leader Dean Skelos and his brother Peter, an appellate court judge. 

"Everybody knows that if you are going to sue the state officer and seek injunctive relief, you do that in Albany," adds Kovner.

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