The New York Times In America

December 4, 2003

After Scandals, State Panel Offers Plan to Revamp Judges' Elections


An expert panel appointed by New York State's chief judge called yesterday for significant changes in the way judges across the state are elected, and proposed that lawyers be required to disclose in court any campaign contributions they have made to judges presiding over their cases.

The panel, named in April by Chief Judge Judith S. Kaye, called for independent screening panels to approve candidates for the bench and stricter limits on the use of campaign contributions during elections. In certain cases, the panel said, judges should be compelled to recuse themselves from cases in which any lawyer or litigant involved had made sizable campaign donations.

At a news conference in Manhattan, the panel and Judge Kaye said the proposals were steps that would be taken quickly, in many cases by the court system, without having to wait for action by legislators in Albany. The panel said it would recommend long-term changes in another report next spring.

Its report yesterday made clear that the recommendations were a first step toward restoring public faith in an arm of the government that has been rocked by allegations of cronyism, bribery and corruption.

In little more than a year, one Brooklyn judge has been sentenced to prison after pleading guilty to a bribery charge, another has been indicted and a third has been removed from the bench for ethical lapses. The Brooklyn district attorney, who has called the current system of electing judges a sham, has won indictments against two of the borough's top Democratic officials, accusing them of strong-arming judicial candidates into hiring consultants favored by the party.

The report, while insisting that the problems had been caused by "a few unfortunate and unrepresentative examples," conceded that "public confidence in judicial elections is sagging." For example, in a poll of state voters it commissioned, more than 80 percent said they believed that the legal decisions of state judges were affected by campaign contributions.

"Reform is essential, there can be no doubt of that," Judge Kaye said. "It is urgent, now."

Some of the proposals can be put into practice almost immediately, she added, "and believe me, we will do it."

The 29-member panel postponed until next year its verdict on some of the thorniest issues involving judicial elections, including whether candidates should receive public financing, said John D. Feerick, the panel's chairman and former dean of the Fordham University School of Law.

Nor did it say whether state law should be changed to scrap the unusual system in which political parties now pick their candidates for Supreme Court, the state's highest trial court. Rather than facing primaries, Supreme Court candidates are chosen at conventions by delegates named by party leaders, who therefore have control over who will be nominated.

The panel's silence on that process led Charles J. Hynes, the Brooklyn district attorney, to say in an interview that while the panel's report was a good first step, "it doesn't address the core problem." Which is, he said, that "at the end of the day, political leaders choose Supreme Court judges, the most important trial judges in the state."

While Albany has traditionally opposed any change in the convention system critics say because politicians are reluctant to give up their patronage power in the courthouses that may be changing.

State Senator John A. DeFrancisco, the Syracuse Republican who is chairman of the Senate Judiciary Committee, said last night that he would introduce a bill this month to abolish the convention system and permit primary challenges. While the mechanics of such a change are open to discussion, he said, "the concept makes a lot of sense.

"When convention delegates are hand-selected by a few people without the chance for primaries, it makes the field of candidates very limited," he said.

Changes within the political parties will also be necessary for the success of one of the panel's primary recommendations: state-sponsored independent commissions to screen judicial candidates to ensure that they are qualified to serve on the bench. The panel proposed that each of the state's four judicial departments have such a panel, made up of members from a variety of backgrounds, which would both recruit and vet candidates using consistent, statewide criteria.

Such a system would "dispel the notion that candidate selection is an insider's game," the report says.

But for the commissions to be effective, political parties would have to agree to nominate only approved candidates. That would limit the ability of party leaders to use judgeships to reward party loyalists, as is common throughout the state.

In the past, party leaders have given a cold shoulder to similar proposals made by groups like the Fund for Modern Courts, which floated its own proposals for improving elections this year. "We did not get very substantive nor very warm responses to the idea that parties should establish independent nominating or screening panels," said Ken Jockers, the fund's executive director.

Judge Kaye said she originally meant the panel to deal with broad issues involving judicial elections, which in some other states have become expensive and contentious. Almost three-quarters of full-time judges in New York are elected, as are all of the roughly 2,000 town and village justices.

The state has long restricted the conduct of candidates running for judicial offices, but its ability to enforce those rules has been challenged in court.

Many of the panel's recommendations are intended to narrow and clarify those rules. They also propose a resource center to help candidates and the public understand the rules of judicial elections, and would require that all candidates take a course in campaign ethics.

The panel would also require judges to recuse themselves from cases in which one lawyer or participant has given their campaigns more than $500 within in the last five years. Lawyers, who are the chief donors to judicial elections, would have to disclose any contributions they or their clients have made to a judge who is assigned to their case.

That requirement would please a vast majority of those in the panel's survey, about 90 percent of whom said that judges should not hear cases involving campaign contributors. The Marist Institute for Public Opinion conducted the telephone survey of more than 1,000 registered voters in October; it has a margin of error of plus or minus 3 percentage points.

Technically, judges are not supposed to know who gives to their campaigns, but many concede that they see their supporters at campaign fund-raisers (in the case of Supreme Court races, campaign finance data is posted on the Internet).

In general, the survey found that only about 45 percent of voters believe that judges are doing a good or excellent job; 48 percent said their performance was fair or poor.

Judge Kaye said after the news conference: "I cannot dispute the fact that the public perceives that politics and money play a part in the judiciary of the State of New York. The question is what to do about it."

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