Report Proposes Public Financing Of Judicial Races

Tom Perrotta
New York Law Journal
06-30-2004


Judicial elections are not leaving New York anytime soon, but a report released yesterday by a statewide commission suggested several ways to begin pushing money and politics out of the process.

The recommendations of the commission, established last year by Chief Judge Judith S. Kaye, come at a time when several judges have been involved in ethical scandals and public confidence in the judiciary is seen as low. Last year, the same commission found that 94 percent of New York voters believe political contributions have at least some influence on the way judges decide cases.

Among the commission's recommendations yesterday were public financing for some judicial elections, with an eye toward statewide public financing in the future; special "retention" elections that would absolve sitting judges from having to raise campaign money for re-election; state-sponsored screening panels to vet judicial candidates; and improved public access to campaign finance information over the Internet.

While some of the recommendations could be partially implemented or set in motion by rule changes from the Office of Court Administration (OCA), the state's chief administrative judge, Jonathan Lippman, said the larger changes would require legislation from Albany.

"We've laid out a very comprehensive program of reforms that we believe would substantially enhance public confidence in judicial elections in the state," said John D. Feerick, chair of the Commission to Promote Public Confidence in Judicial Elections, and a professor at Fordham University School of Law.

The commission also released results from another poll, this one of more than 3,000 judges across the state. Of the more than 1,100 judges who responded, 45 percent said campaign contributions influenced judicial decisions "to some degree." Forty-two percent said having to run for re-election affected their decisions, while 68 percent said judicial candidates know "some, most or all" of their campaign contributors.

The commission left untouched, however, the most contentious issue of the election process: the delegate and convention system that is used to place Supreme Court candidates on election ballots. Opponents of the process, notably Brooklyn District Attorney Charles J. Hynes, have said the system gives political parties controlling the delegates unfettered power and leaves voters with no real choice during elections.

Of the 33 states that elect judges, New York is the only one using the convention system.

In its conclusion, the commission said it did not reach an opinion on how to reform the system, and said such a determination "will not come easily." It asked that the commission be allowed to examine the matter further and produce more findings.

Nonetheless, the commission said, there were other ways to relieve judges of political pressure and restore the public's confidence in an independent judiciary.

It recommended a public financing pilot program for elections to the Surrogate's Court, which, the report noted, has been criticized for "perceived judicial favoritism" in doling out lucrative fiduciary appointments and guardianships to well-connected attorneys. The report said the Surrogate's Court is one of the least diverse in the state and also requires only a few races a year, making it easier to finance.

"While public financing on a statewide basis may not be feasible as a first step, much can be accomplished and learned by establishing smaller 'pilot' programs," the report said.

Earlier this month, the Assembly passed a bill that would set up a statewide public financing system for judicial elections, but at the moment the bill is seen as just the beginning of a legislative discussion with the Senate over judicial politics.

The commission's report advocated "retention" elections for sitting judges along the lines of those implemented in Illinois and Pennsylvania. In these elections, the name of a sitting judge would appear on a ballot a year before the judge's term was up. Voters would be asked to vote "yes" or "no" on whether the judge should be retained. A yes vote would win re-election; a no vote would force the judge to run the next year against other candidates.

Mr. Feerick said these elections could prevent judges from seeking campaign funds and from "having to re-establish associations with political parties."

The report expressed some concern that "retention" elections would make re-election a foregone conclusion and present a barrier to new candidates, but it reasoned that this was only a "danger in theory" since incumbents almost always win re-election. Since 2000, the report said, 31 out of 32 incumbents won Supreme Court races.

A. Thomas Levin, whose term as president of the New York State Bar Association ended earlier this month, said the report contained a number of interesting proposals, though he said he was "a little skeptical that some of them will fly." The State Bar supports an appointive system for judges rather than elections, and Mr. Levin said it was "ironic" that the commission left the most troubling aspect of elections - the convention system - on the table.

"That's the thing that started it all and they still haven't touched it," he said.

Mr. Levin said "retention" elections would be an improvement, though he said they might open the door to targeting a judge for a "no" vote. "It encourages these kinds of issue-oriented elections that we are trying to get away from," he said.

He added that he is skeptical of public financing, too, because "you still have the problem that, constitutionally, you can't stop people from spending their own money on an election."

The commission's report further explained a recommendation from an interim report last year to establish statewide screening panels.

It recommended that each judicial department have a panel of 15 members selected by the governor, Senate and Assembly majority and minority leaders, the chief judge, the presiding justices of the appellate divisions, and state and local bar associations. Commission members, some of whom would be non-lawyers, would serve three-year terms. All judicial candidates would be encouraged to participate in the screening, though they could not be required to do so.

Yesterday's report also stressed gathering more information for voters. It recommended requiring all judicial candidates, not just those for the Supreme Court, to file electronic campaign finance records. Other suggestions included publishing voter guides, creating an online directory for all judges that would include background information, and conducting advertising campaigns, through OCA, to increase voter knowledge of judicial candidates.

Despite the difficult in putting any reforms in place, Mr. Feerick said in an interview that he was optimistic.

"I think we have a very important moment of opportunity, and it's really going to call for a commitment from government leaders," he said.

Judge Lippman agreed.

"I don't think it's an exaggeration to say flowers are blooming here," he said. "You will see reform. Not reform in terms of burning down the house, but reform."

- Tom Perrotta can be reached at tperrotta@amlaw.com.

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