SUBJECT:

PURPOSE:

In Lopez-Torres v. New York State Board of Elections, 06-0635 cv, the United States Court of Appeals for the Second Circuit affirmed the granting by a Federal District Court of a preliminary injunction, enjoining the operation of New York's current system of nominating Supreme Court justice candidates through the use of judicial nominating conventions. The court found that a preliminary injunction was justified because plaintiffs had demonstrated a clear likelihood that New York's current judicial convention nomination system violated the First Amendment to the United States Constitution. The Court also affirmed the trial court's stay of its ruling until after this year's election and the trial court's ruling that, in the event the legislature did not act to modify the current judicial nominating convention system, Supreme Court justices would henceforth be nominated through a direct electoral primary system.

This hearing will consider what actions, if any, the legislature should take to modify the current system for selecting Supreme Court justices in light of the Lopez-Torres decision. Several options have been proposed.

First, the current judicial nominating convention system could be retained, but modified to address the likely constitutional deficiencies identified by the Court.

Second, a statute could be enacted which established a direct primary election system for the nomination of Supreme Court justices. Were this second option adopted, a related question would be whether a system for the optional partial public campaign financing of judicial elections should be enacted in conjunction with such a primary system.

The Senate has passed legislation to establish a direct primary election system for Supreme Court justice candidates without any provision for public campaign financing (S.55a, DeFrancisco). The Assembly has passed legislation to enact a system of optional partial public campaign financing for all elections for judges of courts of record (the "Judicial Campaign Finance Reform Act", A.8a (Weinstein)).

Third, a constitutional amendment could be adopted to provide for the appointment of Supreme Court justices by designated executive officials without nominating conventions or popular elections. Such a constitutional amendment would require passage by two separately elected legislatures and approval by the voters in a general election and could thus not become effective for at least three years.

An additional issue which should be considered relative to any of these systems is whether a statute or constitutional amendment should be enacted to require that no person may be nominated for judicial office unless they have been found to be well qualified for such office by an independent judicial screening panel.

The Assembly has passed legislation to impose such a requirement for Supreme Court justices and appointed members of the Judiciary (the "Judiciary Qualification Act", A.7b, Weinstein).

This hearing will consider whether any of these options, or any other options which would modify the current system for the selection of Supreme Court Justices should be adopted by the legislature and if so, how any such modified selection system should be structured.

Please see below for a list of subjects to which witnesses may direct their testimony, and for a description of the bills which will be discussed at the hearing.

Persons wishing to present pertinent testimony to the Committee at the above hearing should complete and return the reply form as soon as possible. It is important that the reply form be fully completed a nd returned so that persons may be notified in the event of emergency postponement or cancellation.

Oral testimony will be limited to ten minutes' duration. In preparing the order of witnesses, the Committee will attempt to accommodate individual requests to speak at particular times in view of special circumstances. These requests should be made on the attached reply form or communicated to Committee staff as early as possible. In the absence of a request, witnesses will be scheduled in the order in which reply forms are postmarked.

Ten copies of any prepared testimony should be submitted at the hearing registration desk. The Committee would appreciate advance receipt of prepared statements.

In order to further publicize these hearings, please inform interested parties and organizations of the Committee's interest in hearing testimony from all sources.

In order to meet the needs of those who may have a disability, the Assembly, in accordance with its policy of non-discrimination on the basis of disability, as well as the 1990 Americans with Disabilities Act (ADA), has made its facilities and services available to all individuals with disabilities. For individuals with disabilities, accommodations will be provided, upon reasonable request, to afford such individuals access and admission to Assembly facilities and activities.

SELECTED ISSUES TO WHICH WITNESSES MAY DIRECT THEIR TESTIMONY:

1. What system of judicial selection should be utilized in New York State in order to promote independence, diversity, integrity and legal scholarship amongst Justices of the Supreme Court?

2. Can the current judicial nominating convention system be modified so as to remedy constitutional infirmities and serve as a fair and effective mechanism for ensuring that highly qualified candidates are nominated for the Supreme Court?

3. Would a modified nominating convention system, which employed judicial candidate screening panels, serve to effectively evaluate the qualifications of judicial candidates?

4. What impact would a direct election primary system for Supreme Court justice candidates with no provision for public campaign financing have on judicial campaigns and the quality of judicial nominees?

5. Under current law, judges of the Court of Claims and Family Court and Criminal Court judges in New York City are subject to Executive appointment. The majority of trial level judges are subject to a selection system which includes popular elections. Is there any evidence that appointive vs. elective trial court judicial selection systems in New York state have historically resulted in differing overall levels of judicial quality or judicial diversity?

PUBLIC HEARING REPLY FORM

Persons wishing to present testimony at the public hearing are requested to complete this reply form as soon as possible and mail or email same to:

Lowell R. Siegel
Counsel
Assembly Committee on Judiciary
Room 831 - Legislative Office Building
Albany, New York 12248
Phone: (518) 455-5462
Email: siegell@assembly.state.ny.us
Fax: (518) 455- 5752

I will address my remarks to the following subjects:

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