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WINTER 2005 | VOLUME 7 | NO. 2 Government, Law and Policy Journal Contents Board of Editors 4 Message from the Chair Vincent M. Bonventre James F. Horan J. Stephen Casscles 6 Editor’s Foreword James F. Horan Rose Mary Bailly Ann Horowitz James P. King 8 Governors: History and Context Patricia L. Morgan Nelson C. Dometrius Barbara F. Smith Vito J. Titone 11 Strong Governor States vs. Weak Governor States Patricia K. Wood Thomas C. Marks, Jr. Staff Liaison 14 Article IV of the State Constitution: New York’s Governor and Albany Law School the Executive Branch Editorial Board Catherine L. Bonventre Rose Mary K. Bailly Editor-in-Chief 21 Gubernatorial Powers in New York: The Ongoing Battle Patricia E. Salkin Robert F. Pecorella and Jeffrey M. Stonecash Director, Government Law Center 24 Fiscal Discipline in New York State Joseph F. Zimmerman Student Editors Ryan Emery 27 In Defense of Executive Budgeting Executive Editor Robert B. Ward Joshua Oppenheimer Andrew Poplinger 33 The Right to Legislate: How Has the Court of Appeals’ Decision Suzanne Post in Pataki v. Assembly Affected the Executive/Legislative Senior Editors Balance of Power? Jessica Satriano Janet L. Horn Sharalyn Savin 38 Gubernatorial Oversight of Executive Agencies Editorial Office GLP Journal Hermes Fernandez Government Law Center Albany Law School 42 Exercising the Power of Appointment: An Analysis of Variation 80 New Scotland Avenue in Gubernatorial Appointments Albany, NY 12208 Judith R. Saidel, Tamika R. Black and Xiaolei Chen 518.445.2329 Send Address Changes to: 46 The Governor’s Power to Appoint Judges: New York Records Department Should Have the Best Available Appointment System New York State Bar Association Norman L. Greene One Elk Street Albany, New York 12207 53 George Pataki and the Institution of the 518.463.3200 Governorship in New York [email protected] Gerald Benjamin The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed, or otherwise engaged in public service. Views expressed in articles or letters published are the author’s only and are not to be attributed to the GLP Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor- in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2005 by the New York State Bar Association. ISSN 1530-3942. The GLP Journal is published twice a year. New York State Bar Association CCoommmmiitttteeee oonn AAttttoorrnneeyyss iinn PPuubblliicc SSeerrvviiccee Hon. James F. Horan, ALJ Chair Associate Dean Patricia E. Salkin, Vice Chair 22000066 AAnnnnuuaall MMeeeettiinngg Tuesday, January 24, 2006 Programs 9 a.m.–5:15 p.m. Awards Reception: 5:30 p.m.–7:30 p.m. MORNING SESSION: SUPREME COURT REVIEW Program Chair James A. Costello, New York State Court of Appeals Speakers Susan Herman, Centennial Professor of Law, Brooklyn Law School Burt Neuborne, Pomerory Professor, New York University School of Law In June 2005, the Supreme Court of the United States finished an extraordinary term, issuing significant decisions addressing the Establishment of Religion, The Takings Clause, federalism, the Federal Sentencing Guidelines and the death penalty for juveniles. The Court’s docket for the October 2005 Term lists cases of great interest to public service attorneys, addressing such topics as physician- assisted suicide, abortion rights and protest, the impact in death penalty cases of claims of innocence based on new DNA evidence, and mandated on-campus interviewing by the military. Join eminent constitutional scholars Susan Herman and Burt Neuborne as we discuss the work of the Court, the potential impact of the new Chief Justice and that of the current nominee for Associate Justice. 2 NYSBA Government, Law and Policy Journal | Winter 2005 | Vol. 7 | No. 2 AFTERNOON SESSION CURRENT LEGAL ISSUES IN GOVERNMENTAL REFORM: JUDICIAL ELECTIONS, PUBLIC AUTHORITY, AND STATE GOVERNMENT Program Chair Donna J. Case, U.S. District Court, Utica Moderator Patricia E. Salkin, Albany Law School, Albany Speakers John Feerick, Fordham University School of Law, New York Fern Schair, Chair, Board of Directors, The Fund for Modern Courts, New York Ira Millstein, Weil Gotshal & Mendes, New York Assemblyman Richard L. Brodsky, Westchester County Chairman, Committee on Corporations, Authorities, and Commissions Judicial elections, public authorities, and governance of the state are three areas where some say reform is needed. The method of selecting judges in New York State has a direct and significant impact on public confidence in the judiciary. Should the judicial election process be changed? Is reform needed, as Public Authorities in this State increasingly have become the focus of concerns about governmental integrity? Does New York State’s legislative process need to be revised and, if so, is the State Constitution the place to effectuate such fundamental changes? Associate Dean and Professor Patricia E. Salkin will moderate three panels, composed of leading authorities on these subjects, in discussing proposed reforms in these areas of State government. FOLLOWING OUR EDUCATIONAL PROGRAMS, please join your NYSBA friends and colleagues at the 7th Annual CAPS Awards for Excellence in Public Service Reception, New York Marriott Marquis, 37th Floor, Sky Lounge, from 5:30–7:30 p.m. The reception is free of charge and open to NYSBA members and their colleagues. OUR 2006 AWARD FOR EXCELLENCE HONOREES: The Honorable Jonathan Lippman, Chief Administrative Judge, State of New York David B. Klingaman (posthumous award) NYS Court of Claims Office of the Staff Judge Advocate of the 42nd Infantry Division NYSBA Government, Law and Policy Journal | Winter 2005 | Vol. 7 | No. 2 3 Message from the Chair James F. Horan In this issue of the Journal, pating not only for the chance to recruit new members, I’d like to welcome the Jour- but also for the chance to participate in an event that nal’s new Editor, review the calls attention to the often overlooked contribution that reception that the Committee public service attorneys make to NYSBA and to the on Attorneys in Public Service legal profession in general. We thank Judge Graffeo for (CAPS) sponsored in Albany in her remarks, the Membership Committee for their co- June, discuss changes in some sponsorship and the Sections and Committees for their CAPS sub-committees and participation. Photos from the Reception appear later in announce the winners of the this issue. CAPS Award for Excellence in The Sub-Committees: In furtherance of our mission Public Service. to increase the influence of public service attorneys The Journal: To begin this month, I’d like to thank within the Association, CAPS has created a sub-commit- Rose Mary Bailly, from Albany Law School, for agreeing tee on legislative issues. In conjunction with the NYSBA to take over as the Journal’s new Editor. This issue on Executive Committee and in compliance with positions the Office of the Governor marks the inaugural issue that the NYSBA House of Delegates has established, the for Rose Mary as Editor and for the new Albany Law legislative sub-committee will develop and comment on School student editors. The issue comes at an interest- legislation of interest to public service attorneys, with ing time, as New York faces a transition in the Gover- the emphasis on administrative law, public service loan nor’s Office, following Governor Pataki’s announce- forgiveness, procurement law and policy, attorney regu- ment that he will not seek re-election. Rose Mary will lation, public integrity, disclosure and public finance. discuss the issue in more detail in her column. Spencer Fisher from the New York City Corporation Counsel’s Office chairs the sub-committee. The Reception: One of the missions of CAPS is to help integrate public service attorneys into the New York State Bar Association’s (NYSBA) Sections and “In addition to our missions concerning other freestanding Committees. Such integration will help to assure that public service attorneys have influ- integration and increased influence, ence on NYSBA’s activities and positions and will pro- CAPS also exists to provide continuing vide the Sections and Committees with the benefit of legal education programs of interest to the public service attorneys’ expertise. attorneys in the public sector, to provide On June 8th, CAPS and the NYSBA Membership resources related to practice, to serve as Committee hosted a reception at the Bar Center in a network for public sector attorneys Albany as a means to encourage public service attor- neys to join NYSBA and to encourage public service and to facilitate the contributions of attorneys who belong to NYSBA to become active in public service attorneys as members Sections and Committees. In addition to inviting public and leaders of communities.” service attorneys from the Capital Region to the Recep- tion, we also invited all the NYSBA Sections and Com- In addition to our missions concerning integration mittees to send representatives to speak about the work and increased influence, CAPS also exists to provide of their Sections and Committees and to provide exam- continuing legal education programs of interest to attor- ples of the publications and programs that the Sections neys in the public sector, to provide resources related to and Committees produce. Associate Judge Victoria practice, to serve as a network for public sector attor- Graffeo of the Court of Appeals spoke at the Reception. neys and to facilitate the contributions of public service We were also honored to welcome Chief Judge Kaye attorneys as members and leaders of communities. To and Associate Judges Rosenblatt, Ciparick and Read further our mission on continuing education, Donna from the Court of Appeals, as well as Presiding Justice Case and Jim Costello, the Education Sub-Committee Cardona of the Appellate Division for the Third Depart- chairs, are now planning the full day continuing educa- ment, former State Senator John Dunne and former tion program for Tuesday January 24, 2006 at the NYSBA President Lorraine Power Tharp.
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