Last February, Supreme Court incumbent Angela M. Mazzarelli argued that an open judicial primary would cause her “irreparable harm.”

The Appellate Division, First Department justice had watched anxiously as federal judge John Gleeson overturned the state’s convention system for choosing judges in a landmark ruling. In Lopez Torres vs. New York State Board of Elections, Gleeson objected that the judicial convention system denied voters a “meaningful role,” denied some judicial candidates ballot access, and gave Democratic Party leaders too much control.

Gleeson declared the system unconstitutional and ordered the state legislature to create a new judicial selection process, requiring creation of an open primary system until and unless they built something different.

Along with a few other judicial candidates and bar leaders who filed briefs in the case, Mazzarelli was worried about losing the protection that shielded incumbents from the election process.

In the rough-and-tumble world of open primaries, an average race might well have compelled the judge to spend between $100,000 and $300,000 to win a re-election that was virtually guaranteed under the old system.

“Had I known a year ago that I would be required to run in a primary election … I would have spent at least the last six months in personally planning my steps to organize a primary campaign,” wrote Mazzarelli in a brief, begging the federal judge to stay his decision and keep her off the election trail. “It is simply not fair or just to surprise anyone, and particularly an incumbent judge with a full docket in this matter.”

Judge Gleeson did relent, staying his decision for the 2006 election.

As a result, Justice Mazzarelli was able to earn the party’s nomination in a ceremonial judicial convention and joined Supreme Court incumbent Joan Lobis on an empty ballot in Manhattan. Both candidates were cross-endorsed and unchallenged, thanks to the Democratic Party’s ironclad control of the process.

But that’s that. As polls closed Tuesday, that judicial reprieve came to an end.

In August, a panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed Gleeson’s ruling, denying another extension. While the attorneys representing the state Board of Elections and the Association of Justices of the Supreme Court continue considering appeals, none have been filed so far.

As a result, incumbent Supreme Court judges face a daunting new landscape for 2007.

“The status quo is changed dramatically,” explained James Sample, associate counsel at the Brennan Center for Justice. His group helped Surrogate Margarita Lopez Torres and eight frustrated judicial candidates file the suit that overturned the state’s convention system. “Candidates will be faced with a variety of different deadlines. The stay is lifted.”

In 2007, incumbent judges must consider the likelihood of open primaries, worrying about all the fundraising, petitions, and electioneering that party-backed justices narrowly escaped in the last election.

According to records on file at the Unified Court System, six incumbent Supreme Court justices could face re-election in New York City next year: Sheila Abdus-Salaam, Fern A. Fisher and Charles E. Ramos in Manhattan; L. Priscilla Hall, Larry D. Martin, and Albert Tomei in Kings County.

As of this writing, none of these judges had filed campaign finance forms with the state Board of Elections. Time is short, as these judges have only a slim “window period” when they are permitted to raise funds.

According to The 2006 Judicial Campaign Ethics Handbook, the window period commences nine months prior to the earliest of the following dates: the date of formal nomination; the date of a party meeting at which the candidate would be endorsed; or the date that the petition process begins.

Last year, the window period opened in December — nine months prior to the September primary. These dates remain uncertain this cycle as legislators ponder the issue of judicial selection.

Before these judges sell their summer homes (or race car teams, in Judge Ramos’ case) to finance re-election campaigns, they could still be saved at least some headaches, depending on how quickly the state Legislature acts. In pursuit of that action, the Assembly Judiciary Committee is holding a trio of hearings around the state during the next two months, beginning with one in Manhattan on November 15.

Many hope to see a legislative solution before the 2007 election devolves into the primary chaos that Mazzarelli envisioned.

As contemplated, the hearings will entertain three reforms: a modification of the party-controlled judicial conventions, completely open primaries, or a merit-based selection system. (As noted, if legislative action fails, the Gleeson ruling ordered that subsequent judicial elections would be run via open primaries — bringing Mazzarelli’s nightmares to life.)

On first-blush, the merit-appointive system might seem to have the best prospects. In early November, the Fund for Modern Courts released a survey of 95 state Assembly and Senate candidates, taking the political temperature on issues of judicial reform. “By more than two to one margin,” said the Fund report, “those who responded favor a commission-based appointive system for selecting Supreme Court justices.”

But the Assembly Judiciary Committee estimates that such a reform would take a minimum of three years to achieve. This constitutional change would demand that “two separately elected legislatures” pass the amendment; additionally, voters would have to approve the measure in a general election.  

Among other legislation already on the table is a reform bill submitted by Republican Senator John A. DeFrancisco. The measure would create an open primary, allowing candidates to join the primary ballot by a petition process — no party boss backing required.

Reached by phone at his office, Senator DeFrancisco explained why his bill pursued primaries, rather than merit selection or revamped judicial conventions.

“[Other solutions] are totally irrelevant to the issue that’s before the court. The constitutional infirmity was that candidates weren’t given a fair opportunity to run in judicial elections,” he said. “We should make a remedy that addresses that decision head on.”

The tricky part of DeFrancisco’s proposal is how to finance these expensive countywide campaigns. The Assembly Judiciary Committee is expected to discuss different models of campaign finance, including publicly funded elections or different judicial districting.

The November 15 hearing will be held at the New York County Lawyers’ Association, an organization that counts at least one appellate justice and a former criminal court judge among its officers.

The association’s president, Edwin David Robertson, shared Mazzarelli’s concerns about the practical challenges that will come with open primaries. “The way the campaign contributions are solicited raises a number of issues with conflicts of interest,” he explained. “It threatens to compromise the integrity of the judiciary. We don’t want to see judges in that position.”

Robertson said his group has “exhaustively researched“ the merit selection process. He added that he felt a good system would avoid the traps of politics, looking to the current Court of Appeals selection as an exemplary model.

In the 1970’s, similar concerns about political influences on judges dogged the state’s highest appeal court. After some legislative wrangling, the state adopted an appointment process, granting the Governor the power to appoint judges to the 14-year terms.

Within the next year, two (or possibly three) high court judge’s terms will expire, including Chief Judge Judith S. Kaye’s — allowing newly elected Governor Eliot Spitzer to place his stamp on the appellate court. Spitzer’s campaign did not return requests for a statement about his position on any judicial decisions facing his new administration.

Robertson argued that properly constructed merit appointments would air things out. “An appointment system will make the process transparent, so that no one will have reason to complain it’s being done in a backroom. Now it will be done in a front room. Transparency is the main thing.”

Denise Kronstadt, director of advocacy at the Fund for Modern Courts , shared the widespread distrust of open primaries. “They threaten to undermine the confidence of the public who overwhelmingly believe that campaign contributions have an effect on judicial decisions,” she said.

The Fund stresses two main reform agendas: “The immediate remedy is an independent judicial qualification commission in each judicial district to evaluate the qualifications of each candidate,” explained Kronstadt, pushing for a quick method to avoid the pitfalls of a system guided by party leaders.  “In addition, we think the legislature should and can make judicial conventions constitutional by a series of reforms,” she concluded.

The Brennan Center for Justice is not quite as sanguine about this combination of convention reform and merit selection. The Center fought a two-year battle to keep judicial selection out of the backrooms, but the organization fears that revised conventions might well just invite politics to return to the process through a back door.

“Unless New York amends its Constitution, rank and file voters have constitutional rights that cannot be ignored by the legislature, even if those rights are being ignored in some so-called reform proposals,” said Sample, recalling Judge Gleeson’s strongly worded decision that declared the judicial selection model unconstitutional.

“Advocates of an appointment system should absolutely oppose tinkering with New York’s corrupt convention system. If local political party bosses regain the patronage of the conventions that the federal courts have taken away, then their legislative counterparts will ensure that merit selection is legislatively dead for the next 80 years, just as it has been for the last 80 years,” he said, asserting that party politics suppressed fair judicial selection for decades.

Instead of merit selection, Sample encouraged legislators to follow DeFrancisco’s lead, looking for open primaries or a system in which candidates could petition themselves onto the primary ballot without the party’s support.

Out of all the groups debating the issue, election consultants have the most to gain from open primaries. If the debates can’t be settled by next year’s campaign season, consultants could earn hundreds of thousands of dollars as countywide races rage between judicial candidates unprotected by Democratic Party machinery.

“I see problems with anything other than primaries,” said Jerry Skurnik, a Manhattan consultant with Prime New York. “I just don't see any reforms to the convention system that alleviate all the objections that Judge Gleeson put forward. Switching to an appointive system will take three years at a minimum. What do we do in the interim?”

He urged legislators to consider creating smaller districts for Supreme Court positions, building cheaper elections in these contained areas.

Ultimately, Skurnik’s advice could prove to be most useful.

The Assembly hearings conclude December 15th, and the legislative body isn’t scheduled to return to session until next year. It seems unlikely that the legislature can address all of Gleeson’s objections to the current system in time to prevent candidates from enduring open primaries next fall.

Multiple sources admitted that there are no clear deadlines to guide candidates in 2007, and none of them could predict with any certainty when the final decision would be made. Two scenarios seem most likely in the election.

If there are open primaries next September, then Supreme Court candidates can begin raising money in December for the 2007 election.   

If legislators modify the judicial convention system — the only timely alternative to open primaries — more litigation and more delays seem likely. “The plaintiffs are expected to challenge any legislation that fails to address the constitutional problems that Gleeson identified,” explained a source close to the judicial selection litigation who requested anonymity.

In that case, it is impossible to estimate campaign deadlines until that revamped judicial convention legislation arrives. And even then, the process could be delayed by more court action, forcing judges to run in the default open primary — without having time to plan for this expensive undertaking.

When asked what provisions the state Board of Elections had in store for the upcoming judicial election cycle, spokesperson Lee Daghlian responded: “It’s up to the legislature to change the rules, and that will hopefully happen in January.”

Those six incumbent judges running for re-election next year will have a nerve-wracking holiday, watching precious fundraising and campaign planning time trickle away — wondering if they will face voters in a more democratic and expensive judicial race.