The New York County Lawyers Association today issued this statement regarding the pending legislation that changes the appointment process for the New York State Court of Appeals.
The Plain Language of the State Constitution Requires Separate Reports from the Commission for Chief Judge and for Associate Judges of the Court of Appeals. NYCLA opposes the pending legislation (“the Legislation”) in the New York State legislature that provides that, should one of the three sitting Associate Judges of the New York Court of Appeals who appear on the shortlist submitted by the Commission on Judicial Nominations (“The Commission”) be appointed Chief Judge, the Governor may nominate one of the remaining candidates from the same shortlist to fill the resulting Associate Judge vacancy.
In our view, the Legislation is unconstitutional under the plain language of the New York State Constitution. As the Fund for Modern Courts stated: “The proposed program bill to change the appointing method for the New York State Court of Appeals is flawed and should not pass. We believe it would heavily politicize a sensitive nomination process that centers appropriate qualifications for each Court position, and conflicts with the plain language of the State Constitution.”
NY Const art VI § 2(d)(4)
The state constitution states that:
“The commission shall consider the qualifications of candidates for
appointment to the offices of judge and chief judge of the court of appeals
and, whenever a vacancy in those offices occurs, shall prepare a written
report and recommend to the governor persons who are well qualified for
those judicial offices.”
NY Const art VI § 2(d)(4)
The Legislation violates the Constitutional requirement that Commission must issue a report “whenever” a vacancy occurs. The word “whenever” means that the Commission must issue a report “every time” that there is a vacancy, not one report for every two vacancies. The clause also clearly differentiates between nominations for judge and chief judge, thus providing that the reports for those offices cannot be lumped together.
In addition, the Legislation violates the Constitutional requirement that reports be prepared in response to a “vacancy.” The Commission prepared its report for the vacancy in the Chief Judge position. There is no vacancy for the associate judge position now and there certainly was no vacancy at the time the Commission prepared its report.
And finally, the Legislation violates the Constitutional requirement that the Report recommend persons who are “well qualified for those judicial offices” that are vacant at the time of the Report. This provision requires that the Commission separately consider nominees for Chief Judge and nominees for Associate Judge. We recognize that nominees who are well qualified to serve as Chief Judge are likewise well qualified to serve as an Associate Judge. However, here, the Commission considered only applicants for Chief Judge, a position that involves considerable administrative responsibilities, including oversight of a $2 billion budget and [15,000] court employees. The applicant pool for Chief Judge is undoubtedly different from the applicant pool for Associate Judge, a position that does not carry those administrative responsibilities. The Commission, therefore, did not and could not consider all of the qualified persons who wished to be considered for the position of Associate Judge. Notably, too, one of the candidates for Chief Judge, Third Department Presiding Justice Garry, has said that she does not wish to be considered for Associate Judge. Therefore, if the Governor selects an Associate Judge nominee from the list after selecting a Chief Judge, there would be only five remaining candidates on the list, two of whom would be sitting Court of Appeals Judges. Thus, there would be only three candidates for Associate Judge, limiting the breadth and diversity of the Governor’s choices. Indeed, the fact that sitting Court of Appeals Judges can be considered for a Chief Judge vacancy but, obviously, not for an Associate Judge vacancy illustrates why the constitution requires that there be separate lists.
NY Const art VI § 2(e)
The constitution also states that “The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be.” NY Const art VI § 2(d)(4)
The appointment must be from “among those recommended by the judicial nominating commission.” The Commission made no recommendation as to a hypothetical associate justice vacancy which did not exist when the Commission reprepared its report. The Commission’s report covers the Chief Judge vacancy only.
We recognize that the current proposal may help solve a difficult political problem between the Governor and Legislature in picking our next Chief Judge, and thus lower the temperature between these coordinate branches. But this cannot happen at the expense of the Constitution. Based on the unmistakable plain language of the Constitution, NYCLA opposes the Legislation.
About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender, and has a long history of supporting the rights of LGBTQ+ people. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence. For more information on NYCLA please visit nycla.org.
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 Merriam Webster definition of “whenever” as meaning “at any or every time that.” https://www.merriam-webster.com/dictionary/whenever