Judicial Reports: No Political Judgment

By Leah Nelson
lnelson@judicialstudies.com
Posted 10-24-2007

Judge Francis Nicolai decided to challenge the minor parties that had denied him an endorsement. He lost the case. Now, what's going to happen if he wins the election?

Now that Ninth District Administrative Judge Francis Nicolai's petition to overturn the judicial nominating conventions of three minor parties has been rejected, the Westchester jurist is left to deal with a political and judicial establishment that might feel besmirched, if not insulted.

In his claim, Nicolai named not only the local leadership of the Independence, Conservative and Working Families parties as respondents — but the four sitting judges they endorsed: incumbent Republican Supreme Court Justice William Sherwood and Westchester County Court Judge Rory Bellantoni, running in his first Supreme Court race, as well as Nicolai’s fellow Democrats, Orange County Surrogate Elaine Slobod and Rockland County Surrogate Robert Berliner, both seeking their first Supreme Court wins.

Sherwood, who according to The New York Law Journal requested (unsuccessfully) that Nicolai be replaced during the litigation, characterized the situation as “awkward.”

It will be all the more so if Nicolai wins the upcoming election. And that’s quite possible in the Ninth District, even without cross-endorsements.

Should he remain Administrative Judge, in charge of supervising the activities of fellow judges who know that he tried to have colleagues’ ballot positions struck down, it could get downright messy. Given his refusal to step down as Administrative Judge for the duration of the litigation, it is fair to wonder whether Judge Nicolai anticipated the possible fallout.


The Ninth Judicial District — comprising Westchester, Putnam, Orange, Dutchess and Rockland Counties — is home to one of New York State’s few competitive judicial electoral environments. Democrats and Republicans don’t always cross-endorse each other’s candidates, and the population is diverse enough that neither party is guaranteed victory. Click here for a Judicial Reports article about the region.

That means that so-called minor parties’ secondary endorsements of major party nominees can matter a lot: The few thousand votes a cross-endorsed candidate gets from the loyalists in the Working Families or Independence or Conservative Parties can tip a race.

Nicolai’s attorneys were in part relying on the 2006 federal decision, subsequently upheld by the U.S. Court of Appeals for the Second Circuit, that struck down New York’s opaque judicial nominating system. That case is currently before the U.S. Supreme Court, but its members seemed disinclined to uphold the ruling when oral arguments were held in early October.

Nevertheless, citing the federal jurists’ indictment of New York’s convention process, Jeffrey Buss, Nicolai’s attorney against the Westchester Independence Party, opined to the state’s appellate bench, “this court should not presume that the process followed by Respondents was lawful or in the public interest.”

As it turned out, Supreme Court Justice Kimberly O’Connor of Albany, in the Third District, dismissed the case primarily on procedural grounds, thus avoiding Buss’s contention. But John Ciampoli, who represented the Conservative and Independence Parties, faced it head on, alluding to the U.S. Supremes Court’ apparent antipathy to the case.

“The fact of the matter is, anyone who’s been following the law knows that the Second Circuit’s decision that the convention system is unconstitutional is dead on arrival,” Ciampoli said.

Though largely procedural, O’Connor’s nearly identical decisions in the three cases were hardly kind. Brusquely dismissing Nicolai’s claim that his complaint stemmed from violations of statute and case law (rather than internal party machinations), she agreed with Ciampoli’s assertion that “being upset is not sufficient to establish standing.” Such status, she reasoned, would only accrue to petitioners who claimed that their rights had been curtailed by procedural irregularities within their own parties’ conventions.

In other words, since Nicolai is not a member of any of the three minor parties against whom he petitioned, he couldn’t cry foul.


O’Connor’s ruling was enough to send Thomas Abinanti, who represented Nicolai against the Conservative and Working Families Parties, into a rage. “This interpretation means that political leaders can do whatever they want,” he said.

(Alas for Abinanti, Supreme Court Associate Justice David Souter had made just this observation about the rights of parties to run their internal affairs when hearing New York’s case, a point Ciampoli referenced during his own presentation before O’Connor.)

Indeed, Patrick Welsh, Chair of the Westchester County Working Families Party, was candid about his colleagues’ calculus. With four candidates vying for three spots (two of the three Republican candidates did not seek it), “we figured we’d give representation to as many counties as possible,” he said.

Since Democrats Slobod and Berliner were each from different Upstate counties, they were shoo-ins. That left Democrat Nicolai to compete for the Working Families nomination against Westchester County Court Judge Rory Bellantoni, a registered Republican.

When it cross-endorses a major party candidate, the Working Families Party goes with the Democratic ticket the vast majority of the time – but not always.

Why pick Bellantoni? “We have a relationship with him,” said Welsh, explaining that Bellantoni had kept in touch consistently, whereas the party had only heard from Nicolai in August. “That’s pretty much the reason.”

Similarly, Nicolai sought the Conservatives’ endorsement but lost to Bellantoni, Sherwood and Slobod. He did not seek the Independence Party’s endorsement at all.
 

The party chairs were less than thrilled that Nicolai’s suit put their 2007 ballot lines in jeopardy.

“I think,” said Welsh, “Judge Nicolai is doing this because he woke up one morning and realized he only had the Democratic Party’s nomination, and I think he should step back and think why the minor parties didn’t pick him.”

Said Westchester Conservative Pary Chair Gail Burns, “The Conservatives were proud to nominate Judges Slobod, Bellantoni and Sherwood. Judge Nicolai has the right to commence a lawsuit, but I believe it’s wasteful and frivolous and wastes the time of an already overloaded court system. It’s not helpful to anyone, and it’s not helpful to his running mates.”

Due to a 2006 court challenge to their organizational rules, Independence Party leaders particularly despise the court that Nicolai oversees. Though they eventually won on appeal, party leaders believe, fairly or not, that Judge Nicolai was part of the reason the litigation dragged on so long.

“Since 2000,” said Dhyalma Vasquez, the party secretary, “Judge Nicolai has manipulated the system for his own agenda. . . . He lacks the administrative skills. In my opinion, he does lack integrity.”

Nicolai, she said, “needs to hang up his black robes and call it a day.”

His recent litigation loss is particularly surprising, given Nicolai’s track record when fighting for pet causes. He certainly knows election law, having practiced it as an attorney in the 1970s and early 1980s and having since adjudicated many such cases.

His judicial track record is also nothing to sneeze at. He has a civil case reversal rate of 35 percent, with the average for his colleagues in the Appellate Division, Second Department clocking in at 45 percent.

He also remained a savvy litigant once on the bench.

In 1994, the Appellate Department affirmed a lower court ruling in a pay parity case that Nicolai had brought in the late 1980s when he was serving as a judge in Westchester County Court. In essence, Nicolai’s argument cleverly showed that he and the other Westchester County and Family Court judges did as much work as their colleagues in Nassau and Suffolk (who had recently won a tougher case asserting they deserved pay parity with Supreme Court justices) and that their cost of living was similar. His lawyer won handily.

Nor is the judge shy about taking credit. “It was my case,” he said. “I was the one who decided we should bring the lawsuit.”

He also knows when to hedge his bets. In 2004, he had the option of running for Supreme or County Court. But assured by then-Chief Administrative Judge Jonathan Lippman that he’d retain his title as Administrative Judge no matter what office he won (and with no pay to lose due to his own earlier litigation), Nicolai kept his seat the sure way by staying on the lower electoral rung. (By running for the lower seat, he also only had to run in one county, instead of five.)

Smart strategy. Finely tuned political radar. All of which makes his pursuit of this highly charged, partisan case somewhat surprising.

Even more baffling, he once dismissed a similar case for reasons mirroring those O’Connor cited in tossing his current claim.

In 1994, Nicolai, rejected a Supreme Court candidate’s claim that Conservative Party irregularities should have invalidated its endorsement of an opponent. In essence, Nicolai ruled that any irregularities did not trump the clear reality — that party members preferred the other candidate.

So why didn't Nicolai sense a similar dynamic when the parties sought his temporary removal as AJ during the recent litigation?

Asked if he perceived any tension or inherent conflict of interest in remaining supervisor of judges whose nominations he sought to invalidate, Nicolai said, “None that I’m aware of. Absolutely none. It’s a matter that is not unusual for someone to ask the court for judges” to decide an election issue.

However commonplace the litigation, the fact remains that, should he be elected, Nicolai will oversee members of the bench who were forced to fend off his efforts to strip them of their political endorsements. Awkward indeed.

Posted by Jason on October 24, 2007 12:27 AM to Judicial Reports