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NYCLA ISSUES REPORT COMMENTING ON OCA’S PROPOSED AMENDMENTS
December 13, 2004 – New York, NY – The New York County Lawyers’ Association’s (NYCLA) Task Force on Judicial Selection has issued a report in response to a proposal released by the Office of Court Administration (OCA) recommending proposed amendments to the Chief Administrator’s Rules. Describing NYCLA’s report, which was approved by its Board of Directors on December 6, Norman L. Reimer, the Association’s president, explains, “It speaks to the twin goals of fostering public confidence in the fairness, impartiality and independence of the judiciary and enhancing broad public participation in the evaluation process.” Calling OCA’s proposal “important and meaningful reforms for increasing public confidence in the judicial elective process,” Mr. Reimer urges OCA to consider NYCLA’s comments on implications for the 1965 Voting Rights Act requiring preclearance and a revised model for the Judicial Election Qualification Commissions.
In responding to the amendments, the Task Force examined the Voting Rights Act, which was enacted to ensure that no person is denied the right to vote on account of that person’s race and requires preclearance for changes in voting practices and procedures. The Act stipulates that any statewide changes to the election law, even if such changes ostensibly expand voting rights, must be precleared by the U.S. Department of Justice’s Civil Rights Division.
NYCLA’s Report: Comments on the Proposed Amendments to Part 100 of the Chief Administrator’s Rules Among the issues the Task Force commented on were the proposals to: create commissions in each judicial district that would evaluate candidates’ qualifications for public office; select commissioners for each judicial district; determine qualifications and terms of office of said commissioners; identify criteria used to evaluate candidates for judicial office; revisit the ‘pledges and promises’ rule; and require limits on the costs of tickets (to politically sponsored events) purchased by judges and judicial candidates.
Addressing the OCA’s proposal to create Independent Judicial Election Qualification Commissions (“commissions”), NYCLA’s Task Force identified a need to defer implementation of the new Part 150, which would publicize the failure of any candidate to participate in the screening process, until a preclearance from the Justice Department under the Voting Rights Act is obtained. As three of the city’s five counties (New York, Kings and Bronx), are now covered under the Act, OCA’s enactment of measures to regulate voting would require preclearance. The types of changes affecting voting that “trigger” a preclearance requirement include:
Any change concerning publicity or assistance in registration or voting;
Any change in the method of determining the outcome of an election (e.g., by requiring a majority vote for election or the use of a designated post or place system);
Any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective office;
Any change in the eligibility and qualification procedures for independent candidates.
Moreover, the Report states:
To avoid the possibility that a judicial election is invalidated because it was conducted under procedures that were not precleared by the Justice Department, we recommend that
OCA defer implementation of Part 150 until preclearance has been obtained; and
OCA immediately begin gathering empirical evidence to determine whether its recommendations would discriminate or otherwise have a disparate impact on minorities, which it will need to submit to the Department of Justice to support its application.
OCA’s proposed rules provide for 15-member commissions for each of the State’s 12 judicial districts to be selected as follows: the Governor, Chief Judge and Presiding Justice of the relevant Appellate Division would each select two members (one lawyer; one non-lawyer) for a total of six members; the President Pro tem of the Senate, Minority Leader of the Senate, Speaker of the Assembly, and Minority Leader of the Assembly would each choose one for a total of four members (could be lawyers or non-lawyers); the President of the New York State Bar Association would select one member; and four local bar associations would each select one member. The local bar associations would be designated by the Presiding Justice of the relevant Appellate Division.
Citing the need for “encouraging a greater number of individuals from more varied backgrounds to seek judicial office and increasing public confidence in the fairness, impartiality and independence of the judicial system,” the Task Force recommended a different commission- selection process that would provide for greater participation by local organizations and make the selection process a less political one. This model would have the six state-wide officers — the Governor, Chief Judge, Senate Majority Leader and Minority Leader, Assembly Speaker and Minority Leader — plus the Presiding Justice of the appropriate Appellate Division, designate the 12 selection panels, one for each judicial district. The members of each selection panel would then designate local organizations, such as bar associations, civic groups and law schools, which would then select the members of the commissions from among their members. And, the report noted, “We also urge that lists of organizations from which selection panels may choose be established and be made public and that selection from those lists be subject to rotation as well.”
The Task Force report also sought to broaden the definition of diversity as put forth in OCA’s proposal (delineating the qualification of commissioners) and ensure that commission members reflect the diversity of the community they serve. The Task Force’s more inclusive definition of diversity, consistent with the New York City Human Rights Law, would “expand the set of persons for whom special consideration is given to persons in other groups historically excluded or subject to discrimination” and would encompass race, color, ethnicity, gender, sexual orientation, gender identity and expression, religion, nationality, age, disability, and marital and parental status.
In addition, the report recommended several additional qualification requirements for commissioners; for example, they should have demonstrable knowledge of the judicial system and experience in the needs and operation of New York courts. And, among the criteria the report itemized that would disqualify a person from serving on a commission were:
any person unable to regularly attend meetings;
registered lobbyists and members of their firms (because they are paid to influence politicians);
any person who has held a party elective office within the past three years other than on a county committee;
any person who is an employee of the courts;
members of any judicial screening panels.
For a copy of NYCLA’s report, “Comments on the Proposed Amendments to Part 100 of the Chief Administrator’s Rules,” log on to www.nycla.org and click on “December 6, 2004 – Task Force on Judicial Selection Report” on NYCLA’s homepage.
The New York County Lawyers’ Association (www.nycla.org) was founded in 1908 as the first major bar association in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.