Judicial Reports: Before the Flood
By Jason Boog
Posted 12-14-2006
Lobbying for judicial selection reform is like romancing your date in a fast-food restaurant. Big-time lobbyists throw around millions to court lawmakers on tort reform or sports stadiums. But the small clutch of lobbyists advocating changes to the way New York picks its judges have spent a relatively paltry sum on their cause. So far.
Upon examination of lobbying records on file with the New York State Temporary Commission on Lobbying, the sum total of the 2006 lobbying budgets for groups concerned with this issue is less than $150,000 — barely enough money to support a single candidate during a contested up-state judicial race. And that figure includes spending on other issues.
According to Rachel Leon, executive director of the good government group, Common Cause New York, the real battle has yet to begin: “This coming session is when the rubber is going to hit the road on this issue. That’s when the money will be spent, if it’s going to be spent.”
Nearly one year ago, federal judge John Gleeson overturned the state’s convention system for nominating Supreme Court justices, yanking control of judicial selection out of the hands of party bosses in Lopez Torres vs. NYS Board of Elections. Gleeson also ordered the state Legislature to create a new system — mandating open primaries as the default system if the Legislature should fail to reform the regime in time for the 2007 election cycle.
That means a time bomb is ticking over judicial selection. And yet, the bomb squad has been twiddling its thumbs. The Legislature waited until November to hold the first public hearings over the issue.
Six main players in the judicial selection debate are gearing up to press the urgency for reform soon after the New Year. While each has an individual recipe, they can be divided into two general camps.
The Association of the Bar of the City of New York, the Association of New York State Supreme Court Justices, and The Fund for Modern Courts all hope to retool and retain the judicial convention system.
The League of Women Voters of New York State, Common Cause/NY, and the Brennan Center for Justice all want to scrap the convention system. But here the second camp divides a bit.
Where the League expresses fear of elections that it says could corrode judicial independence, (and pushes for a constitutional amendment for merit selection instead), the Brennan Center says any amendment would take long enough to pass that the ruling’s demand for elections must be satisfied now. Common Cause favors merit selection, but says carefully constructed elections could work in the interim.
According to Ralph P. Miccio, the lobbying commission’s counsel, lobbyists are required to register and file bi-monthly reports, and they can be fined up to $50,000 for breaking the filing regulations. While lobbying around judicial selection has not exceeded $150,000 to date, there is no limit on the amount a lobbyist can spend trying to convince lawmakers.
Miccio explained that lobbyists file two figures: “Compensation is what the lobbyist is paid by his client to lobby. Expenses are the expenses incurred by the lobbyist.” (The totals in this article represent the sum of those two figures.)
SISYPHUS HAD IT EASIER
For 25 years, Barbara Bartoletti, the legislative director League of Women’s Voters of New York State, has championed merit selection for judges in New York. Every year she loses the battle to legislative apathy.
“We’ve been here several times before, and we have not been able to crack this nut. Legislators like the way things work, they’re comfortable with the status quo,” she explained.
Next year, she will spend her time visiting Albany politicians; simultaneously, she will send League members around the state to visit politicians and editorial boards in their communities.
According to the group’s latest filing from October 2006, they spent $17,000 lobbying for a long list of legislation, including opposition to one of three judicial selection reform measures currently under discussion. Senator John A. DeFrancisco, the Republican chair the Senate Judiciary Committee, introduced that bill, S.55A, in 2005.
The DeFrancisco measure would create an open primary race for judicial seats, allowing candidates to join the primary ballot by a petition process, returning judicial selection to a genuinely democratic process. Under the status quo, party leaders control nominations so tightly — and partisan monopolies are typically so strong in most jurisdictions — that competitive primaries and elections are more apparent than real.
Bartoletti strongly opposed such primaries, as her League has contended for years that open elections will compromise the judiciary.
Still, Bartoletti hoped that the rare burst of momentum generated by the federal ruling wouldn’t be ignored by the Legislature: “The worst case scenario is that they try to very narrowly tinker with the system to satisfy the constitutional problems, and they lose this opportunity to make the judicial system work better for everyone.”
In contrast to the League, the Association of New York State Supreme Court Justices supports a retrofitted convention system.
The association has out-spent all of its competitors in lobbying budgets. To date, the Association has spent $49,000 lobbying the two Judiciary Committees in 2006. And although that has included the pursuit of influence on nearly 60 different pieces of legislation, judicial selection is far and away the group’s main focus.
Nevertheless, they have yet to find a piece of legislation that makes them happy. “We have made clear that the judge’s association supports the proposals generated by the Feerick Commission. They would be in support of legislation consistent with those recommendations,” said Joseph L. Forstadt, the Stroock & Stroock & Lavan attorney who defended the Association of Supreme Court Justices during the Lopez Torres case.
IN THE WAKE OF FEERICK
John D. Feerick, the former dean of Fordham University School of Law, analyzed the judicial system in a three-year study for the Commission to Promote Public Confidence in Judicial Elections. His final report warned against open primaries, prescribing a revamped judicial convention system instead.
The association will push for a “revised convention system” during state Senate a Judiciary Committee hearing January 8, but Forstadt said he was unaware of any additional lobbying efforts planned for the upcoming year. He stressed that the group would take a legal, rather than legislative, approach to the issue — adding that they had filed a U.S. Supreme Court appeal of Lopez Torres at the end of November.
Sitting justices have the most to lose from legislative inaction, because the default primary system would require most who face re-election to navigate an expensive new labyrinth. According to Forstadt, June is the “absolute drop-dead date” that the Legislature can act before seated judges are forced to prepare for September nomination contests.
When asked to put the judge association’s spending in context, Common Cause’s Leon was frank, saying “$50,000 is a drop in the bucket — most groups have a legal strategy, rather than a lobbying strategy.”
Over the years, Common Cause has supported a merit selection system for judges, a constitutional change that would require at least three years of to achieve because it would require voter approval following passage of an amendment by two separately elected Legislatures. Common Cause says it could accept “real elections,” if they included public funding.
Between March and October 2006, Common Cause filed $34,000 in lobbying expenses — pushing a slate of issues, from lobbying reform to election ethics. According to Leon, that money will be spent on mostly grassroots action next year.
In 2007, her legislative team will arrange “legislative visits” to key lawmakers, seek visibility at the various Assembly and Senate hearings held around the state, and push the issue harder with constituents in the home districts of the Judiciary Committee legislators.
Leon concluded on a note of resignation: “The state budget looms over everything in Albany. There’s so much pressure to do the budget by April 1st. My guess is that there may be action, but it may come down to the waning days of the session.”
The Fund for Modern Courts spent around $7,000 so far this year, lobbying for a host of judicial issues while operating with the smallest budget out of the six judicial selection players.
“We have a small budget and a small office. It’s only me,” explained Denise Kronstadt, director of advocacy for the fund who performs all the group’s lobbying functions. In the coming months she’ll spend more time in Albany visiting legislators and editorial boards. The issue will be at the head of the Fund’s efforts in January.
Unlike Common Cause, the Fund strongly opposes open primaries. Instead, they hope to reform the judicial convention system to meet Judge Gleeson’s constitutional requirements. (One of their former chairs is Feerick, architect of the convention prescription.)
Kronstadt stressed that her group banks on the influence of its high-profile board members (including former presiding judge of the Appellate Division, Milton Mollen and the deans of five New York law schools), rather than a lobbying war chest.
Additionally, the group has lobbied for the "Judiciary Qualification Act", (A.7b) a bill introduced by Assemblywoman Helene E. Weinstein that proposed a special screening panel to aid in the selection of judges — a mechanism to help improve the convention system. (Weinstein is scheduled to hold the third in a trio of committee hearings on judicial selection tomorrow.)
The Brennan Center has always resisted convention reform. After all, they led the Lopez Torres lawsuit, to make the system wide open.
“Our message is simple. Whatever the legislature chooses to enact needs to focus on the constitutional problem at hand and focus on the rank and file voter,” said James Sample, encouraging the legislature not to merely “tinker” with the convention system that the litigation overturned.
As of October 2006, the group spent around $30,000 pushing for a variety of legislative issues. During September and October, the group spent $4,000 lobbying for (among other things) Senator DeFrancisco’s open primary bill.
“We have had meetings with some elected officials,” said Sample. “But the litigation is the centerpiece of our involvement in this issue.”
As a 501(c)(3) non-profit, the center’s lobbying efforts must follow federal tax restrictions. All similar non-profits must calculate a limit of lobbying expenses based on the group’s overall budget. “Lobbying has to be an insubstantial part of the overall activity,” explained Liz Towne, director of advocacy for the federal non-profit monitoring organization, Alliance for Justice.
According to this same tax law, the center cannot use its resources to support individual candidates either. Because the other non-profits concerned with judicial selection are organized under a different provision of federal law, they are not similarly bound on campaign contributions, though election records reveal that none of the other groups have contributed to individual state senators or assembly members.
On December 11, the Association of the Bar of the City of New York released the results of months of research gathered by their Task Force on Judicial Selection — outlining the group’s legislative stance in clear language. Overall, the City Bar has reported $12,000 this year in expenses incurred while lobbying a number of issues, including judicial reform.
“We certainly will be talking with legislators,” said bar general counsel Alan Rothstein, outlining his group’s advocacy plans for next year. “In January, we will encourage editorials, and we rely on our individual committees for support. We do not hire lobbyists.”
Its central recommendation placed it at odds with the Brennan Center and more or less allied it with the judge’s association: that the legislature should draft a bill creating a “commission-based appointive system” for selecting judges based on merit, reverting to a revised judicial convention system while that constitutional amendment runs its arduous course through the three-year amendment process.
The flurry of bar publications and hearing testimony collected over the last month shows that Judge Gleeson’s deadline has snapped the state legislature out of its stupor. Still, it may already be too late to have anything in place for next year’s election.
The “window period” for judicial incumbents to raise money for the 2007 election has already opened, leaving 24 incumbent justices around the state in anxious limbo. These candidates must be wondering how many wealthy lawyers will capitalize on the legislature’s apathy and attempt to nab a judgeship in a free-for-all primary.
Posted by Jason on December 13, 2006 04:38 PM to Judicial Reports