Judicial Reports: Renovating the Judge Factory, Part III
By Mark Obbie
Posted 11-21-06
When the panel barnstorming the state in search of a fix for New York’s Supreme Court election scheme started November 15 in Manhattan, it heard mainly from experts with all of the big-picture answers (many of which are mutually exclusive). The state Assembly’s Judiciary Committee hit Rochester on November 21 for the second hearing, where it met a different kind of expert: the in-the-trenches kind, like Timothy Walker and Stephen Cass.
To Walker, a two-time Supreme Court candidate, the central issue is money. His first race, in 2005, cost him $50,000 of his own money. He lost.
“In 2006, when they told us it would cost us nearly $200,000, I cashed in my 401(k),” he testified. Even though Governor George Pataki appointed Walker to the court earlier this year, he lost this election, too.
Now the 43-year-old former partner in the large upstate firm Hiscock & Barclay — with two kids nearing college age — is planning a third race, for 2007. The anticipated price tag as Supreme Court selection undergoes forced reforms: $300,000. “I’ll empty my retirement account,” Walker told Assembly Judiciary Committee Chair Helene Weinstein and three other Assembly members.
Walker wasn’t seeking sympathy for his serial campaigns. He said he simply wanted policymakers to understand how elections are “a rich man’s game” and should eventually be converted to a merit-selection system.
Cass attacked the system from another angle. “We know in Chautauqua County our votes really don’t count in judicial elections,” the Surrogate’s Court judge said in bemoaning Erie County’s vast dominance over the eight-county Eighth Judicial District. Erie’s delegate count can outvote all the other seven counties in the district combined, Cass said, so counties such as Chautauqua have no practical shot at putting their own on the Supreme Court bench, except through the graces of Buffalo party bosses.
Welcome to upstate New York, home to different strains of political dysfunction than what infect New York City or its political satellite, Albany. Here, Republicans control the countryside, except the Democratic population centers of Buffalo, Rochester and Syracuse.
Few of the small-picture experts at the Rochester hearing bothered pretending to have tidy solutions to the ticking-time-bomb the state confronts. But they talked about what they knew: the many ways in which the system is flawed, some peculiar to western New York, others ingrained statewide.
The Assembly committee that Weinstein chairs is collecting testimony in response to the ruling ten months ago by U.S. District Judge John Gleeson in Lopez Torres vs. NYS Board of Elections. Gleeson, who was upheld by the U.S. Circuit Court of Appeals for the Second Circuit in August, threw out the state’s system of nominating conventions for choosing candidates for the state’s general-jurisdiction trial bench, the Supreme Court.
The courts found that the system’s devilishly complicated requirements, which make it near impossible to secure a place on the ballot absent party boss’ blessings, violated the constitutional rights of candidates and voters alike.
Those rulings were stayed for the 2006 elections. But the 2007 cycle — with 41 Supreme Court seats up for election, by the committee’s estimate — must use open primaries unless the state crafts a different legislative solution by early enough in the year that candidates can raise money and run.
The ten witnesses at the Rochester committee hearing offered a hodgepodge of suggestions, or none at all. But they certainly were at no loss to describe the various flaws that drive up campaign costs, exclude women and minorities, and disenfranchise large swaths of rural upstate.
Their complaints and suggestions — voiced to Weinstein, Erie County Republican Jack Quinn III (ranking minority member on Judiciary), and Rochester-area Democrats Susan John and David Koon — fell into a handful of categories:
Geographic Diversity
The most persistent plea of the day: shrink the sprawling judicial districts upstate. Witnesses testified that the multi-county districts make it even tougher for candidates to petition for ballot access; they disenfranchise smaller counties; and they deprive urban Democrats of an undiluted base.
While enacting an appointment system would require years to amend the Constitution, changing district boundary lines could happen in time for the 2007 elections, said Arnold & Porter’s Kent Yalowitz, pro bono plaintiffs’ counsel in Lopez. “The Constitution gives the Legislature that power right here and right now,” Yalowitz said. Shrinking those districts, he said, “solves many, many problems.”
Weinstein said after the hearing that she does not know if Yalowitz’s interpretation of the Legislature’s short-term powers was correct.
Race and Gender Diversity
Newly elected Rochester City Court Judge Maija Dixon of the Rochester Black Bar Association called the large-district, convention-controlled system “hostile” to women and minorities, noting that Rochester’s Seventh Judicial District is one of five in the state with an all-white Supreme Court bench. “There is a concern that the closed political system has been a ruse to exclude women and minorities,” Dixon said. Her suggested fixes: revised convention rules, primaries open to candidates who don’t get the party’s convention nod, and single-county judicial districts.
Dixon’s views were seconded by Bryan Hetherington, chief counsel of Empire Justice Center, a poverty-law and advocacy group, who decried big-money electoral politics that drowns out the interests of the poor and minorities. He advocated a merit-selection system, or failing that, smaller districts.
Merit Selection or Reformed Elections
Alan Harris, president of the Legal Aid Society of Rochester, testified that until his long-term preference for an appointive system can be written into the constitution, elections should be held with direct, non-partisan primaries and financed with tax dollars. Don’t just tinker with nominations, he said. “The system we have is way too convoluted and complicated to amend,” he said.
Walker, the Buffalo judge whose financing scheme focuses on his retirement savings, touted merit selection. He said he favors an appointment system similar to that used for the Court of Appeals. His Eighth District counterpart Cass, however, opposed appointments and public campaign financing. “Our state’s broke,” he reminded the committee.
Niagara County Supreme Court Justice Ralph Boniello, while generally favoring the convention system and district structure that put him on the bench six years ago, lamented the $200,000 that his contested election cost. “I think public financing would be a big help,” he said.
Convention Mechanics
“We’re hearing more opposition to the conventions than [we heard] downstate,” Brennan Center counsel James Sample said during a break. So when Brennan’s counsel, Yalowitz, took his turn, he touted a designating convention scheme in place of the current nominating conventions.
In the Spring, he said, party conventions would give their endorsement to candidates who drew at least half of delegates’ votes. Candidates who receive more than 25 percent but less than half of convention votes would earn a slot in a primary. Others would be able to put themselves on a primary ballot through petitions.
The scheme’s chances drew a skeptical response from Assemblywoman John, who expressed doubt that the Legislature would impose one convention structure on all counties — or that the counties could agree in a hurry on standard rules to run districtwide designating conventions.
January and Beyond
Although Yalowitz’s ideas were focused on the short term, to comply with Gleeson’s ruling, Chairwoman Weinstein often had to steer other witnesses back from long-range, Constitution-amending ideas to the here and now: what to do by January.
Weinstein brought Gleeson’s specter into sharper relief when she questioned Yalowitz about the judge’s role in the case after the Legislature takes action. Yalowitz acknowledged that the Brennan Center likely would seek Gleeson’s review of whatever plan the Legislature devises. Gleeson has only entered a preliminary injunction, so if the facts have changed when the time comes to consider a permanent injunction, he will have to take a fresh look, Yalowitz said.
Also on the near horizon are Senate hearings, which Senate Judiciary Committee Chairman John DeFrancisco announced this week he would convene by mid-January. DeFrancisco’s bill to abolish the party’s judicial nominating conventions passed the Senate in February, soon after Judge Gleeson issued his injunction.
As the speakers and Assembly members exited the Rochester City Council chambers, they passed a sign that had been rigged up to advertise the afternoon’s hearing. The flip side, now visible to the combatants as they filed out of the room, read “Marriage ceremony in progress.” Unfortunately for all concerned, New York’s judicial election scheme is the product of many shotgun weddings — Assembly Democrats with Senate Republicans, downstate goo-goos with upstate pols, state officialdom with the federal bench — all locked in a messy union with no way out.
Mark Obbie is a legal writer based in Canandaigua, N.Y. He teaches journalism at Syracuse University’s S.I. Newhouse School of Public Communications and blogs about legal reporting at LawBeat.
Posted by Jason on November 21, 2006 07:09 PM to Judicial Reports