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Issue of the Week
 
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Judges

by Mark Berkey-Gerard

11 September 00

Barbara Jaffe wants you to know that she was the "non-political candidate" in the September 12 primary race. It's a claim that Phyllis Mingione, one of her three opponents, made as well. So did another opponent, Joan Kenney: According to one of her campaign brochures, those that backed Kenney "put aside politics to support" her.

It is not unusual for candidates to claim they are not political, but these self-declared non-politicians were running for an office that is itself supposed to be non-political. They were running for Civil Court Judge.

Civil Court judges settle disputes between friends who fail to pay back loans and landlords who don't fix leaky faucets -- not exactly Brown v. Board of Education. But if the office itself seems far removed from politics, getting into such an office in New York, as the only two judicial races in this week's primary make clear, could not be more political.

Sometimes it's politics at its worst. In some states, boards for judicial conduct are censoring judges for lying, exaggerating, and running false attack ads against their opponents -- in other words, for acting like politicians. The chief judges of 15 states including New York announced last week that they would hold a "summit meeting" in December, organized by the National Center for State Courts, to try to limit what they see as electoral abuses that are threatening the public's confidence in the courts.

That confidence is already quite low. A 1999 survey found the nearly 80 percent of those polled felt that politics swayed court decisions and that elected judges were influenced by campaign money.

But the other way of selecting judges, appointing them, has also come under criticism. Last March, a 17-member panel was created to look into the rules and ethics of court appointments after two Brooklyn lawyers claimed they were passed over for patronage assignments from judges because of political favoritism.

In New York City, how judges are chosen is just part of the problem. The city's courts are so confusing and complex that it takes a New York State Supreme Court Justice to explain them (see Guide to the Courts by Justice Emily Jane Goodman).

Some say the system needs a complete overhaul. Others say that this will never happen, thanks to politics. Indeed, a plan created by the top judges of the state to reform and restructure the court system is stuck in the state legislature.

Meanwhile, the battles rage on.

THE LOCAL BATTLES

This week's primary races produced strange political alliances, allegations of extortion, and gross over-spending.

In the race for Civil Court Judge in Brooklyn, according to an article about the dispute in the Village Voice, the incumbent Judge Maxine Archer was running unopposed when a lawyer with ties to Congressman Edolphus Towns demanded $140,000 to assure her a win. When she refused, the article alleges, a rival candidate, Betty Williams, suddenly surfaced. The allegations were denied. Williams declined to comment. Unofficial tallies of the primary results show Williams way ahead in the race.

The only other race, for Civil Court Judge in lower Manhattan, pitted four like-minded liberal Democratic candidates against one another. All four were selected (out of 17 applicants) as "highly qualified" by the Independent Judicial Screening Panel, enabling them to run. Their major distinguishing difference seemed to be the streets they live on: The major "issue" that the candidates, especially Kenney, used to attack one another, was whether they live in the Village, the neighborhood where most of the potential voters reside -- an irrelevant argument since Civil Court judges in Manhattan handle cases in the whole borough, not just in the district where they are elected.

It would be easy to suspect -- indeed, hard to avoid concluding -- that the judicial candidates in this race were pawns of the various political clubs who backed them (and political players connected to the clubs) in their efforts to gain ascendancy in the local political scene.

The Lower East Side Democratic Club backed their local candidate, Phyllis Mingione. Members of LaMappa (the newly-formed Lower Manhattan Alliance for Political Action) were working to elect Ira Cure, (who is the law partner of one of LaMappa's founders, Arthur Schwartz). But, most startling, two long-time rival Greenwich Village clubs -- the Village Independent Democrats and the Village Reform Democratic Club -- put aside old Koch/Cuomo feuds and actually joined forces in support of Joan Kenney.

"To call the two clubs arch rivals, would be to put it mildly," said Kenney's campaign manager, Jane Sweeney. (Are they forming an alliance because of the superiority of their candidate, or in an effort to hand a defeat to their new mutual rival, LaMappa?)

Even Barbara Jaffe, the "non-political" candidate who was endorsed by the New York Times in part "because of her legal scholarship," had herself the support of the Stonewall Democratic Club and The United Democratic Organization of Chinatown.

The four candidates and their clubs poured some $400,000 into a race that, when all the votes are officially tallied, will probably be won by the candidate who manages to get around 3,000 of them. The unofficial tally shows that Joan Kenney is leading the race with 2,977 votes.

Races such as these present some confusing dilemmas. Should judicial candidates, for example, be expected to respond to allegations as if they were a public official or should they stay above the fray as an impartial judge?

To Jaffe, it seems nearly impossible to keep politics out of the judiciary whether judges are elected or appointed.

"Elected is Politics with a big 'P.'" Jaffe said. "Appointed is politics with a small 'p.' The mayor appoints Criminal Court judges. If you think politics isn't involved in that, you're naİve."

THE LONG RUNNING DEBATE--APPOINTED VS. ELECTED

The debate over how to select judges goes back to the Federalist Papers. Over time, the basic argument has remained the same, but is still unresolved. Should judges be appointed or elected by the people?

Advocates of appointment argue that judges can not be independent if they are worried about elections, raising campaign funds, and presenting a public image. Most voters, they say, have little interest in or knowledge about judges running for seats.

Advocates of elections argue that judges should answer to the law and the people it sets out to protect, not the policymakers or commissions of elitists who appoint them.

Across the nation, each state has a different way of selecting judges. All appoint at some level. Forty two states hold some kind of elections. No two state systems are identical.

In New York City, judges are selected through a mix of elections and appointments.

The mayor appoints local judges in Criminal and Family Courts. Elected judges serve on Civil, Surrogate's, and Supreme Courts.

Opponents of elections in New York note that Democratic domination keeps other parties out the races, and seats are decided in the primaries. Opponents of appointments have criticized the mayor and the governor for using their political will in judicial selections and say that appointed judges do not reflect the ethnic composition of the city.

Although the state Constitution requires that Supreme Court Justices be elected, in recent years, lower court judges have been designated "Acting Supreme Court Justices," to deal with a backlog of cases. These were authorized in the 1970's as a temporary measure to handle the huge number of drug cases under the Rockefeller laws, but are still in use today. Some of these acting justices have been appointed by the governor from the Court of Claims, which traditionally handles cases against the state.

NAVIGATING THE CITY SYSTEM

Jonathan Lippman the Chief Administrator of State Courts, has called the New York City courts "the most complex, arcane court system in the country."

The city's court system, which produces about half of all the cases in the state, is a maze of trial divisions.
COURT CASES THEY HANDLE HOW JUDGES ARE SELECTED TERM/TD>
Housing Land-lord/ tenant issues Appointed by Chief Administrative Justice 5 yrs
Civil Court Claims less than $25K Elected 10 yrs
Small Claims Claims and lawsuits less than $3K Elected 10 yrs
Criminal Misdemeanors Appointed by mayor 10 yrs
Family Family matters, except divorce Appointed by mayor 10 yrs
Supreme-Civil Divorce and civil matters over $25K Elected 14 yrs
Supreme†Criminal Felonies Elected 14 yrs
Surrogate Court Wills, estates, adoptions Elected 10 yrs
Court of Claims Lawsuits against the state Appointed by governor 9 yrs

One example of how unwieldy the system can be is in how family issues are handled.

Child custody and visitation are handled in Family Court, but divorces can only be addressed in Supreme Court. So a family in a divorce can find itself bouncing back and forth between both courts, spending twice as much time and money than if it went through the same case living in the suburbs. Adoptions can be handled in either Family Court or Surrogate's Court depending on the conditions. If criminal charges such as abuse are involved in a domestic case, then it can spill over into Criminal Court.

HOW DID WE GET HERE?

The "Tweed" County Courthouse that sits behind City Hall is a reminder of the historical links between corrupt politics and the courts in the city.

Built between 1862-1870, the old county courthouse with its arched windows and sunlit rotunda was supposed to cost $250,000. It ended up $13 million over budget, much of which was stolen by Tammany boss William Darcy Tweed and used for his Democratic political machine. (Today, the building, which is undergoing a costly restoration, houses municipal offices.)

The scandal surrounding the Tweed Courthouse helped spark two efforts for judicial reform in New York.

At the same time, citizens began to think that the system of elected judges, set out in the state's 1846 Constitution, wasn't such a good idea. The introduction of appointed judges became an attempt to keep the political parties out of the judicial system and streamline the system. In 1870, the Association of the Bar of New York City was founded to provide standards for lawyers and judges.

Today's court positions still have plenty of connections to elected politicians, powerful lawyers, and local political parties vying for bragging rights.

Although the starting salary of over $125,000 a year doesn't compare to what a lawyer can make in private practice, a local judgeship carries the prestige that can launch a career in politics or lead to promotions to higher courts.

With so much at stake, true reform is difficult.

THE LONG, HARD ROAD TO REFORM

Many legal reform groups favor a kind of third way known as merit or nomination systems.

A merit system uses nonpartisan commissions of lawyers and non-lawyers to find applicants for judgeships. The commission then submits the applicants to an appointing authority. For re-appointments, the judges are evaluated by commissions or voted on in an uncontested election.

In New York, judges in the Court of Appeals are selected through what its backers call a merit system, what its critics call a system of political appointment. But even proponents of a merit system concede that they won't be a widespread part of the New York courts anytime soon.

As far as the overall court structure, Chief Administrator of the State Courts, Jonathan Lippman and Chief Judge Judith Kaye first introduced a plan to reform the New York trial courts system in 1997. Numerous good government and judicial reform groups have supported the proposal.

Three years later, the proposal is still sitting in Albany.

This summer, it was left hanging in the State Legislature, despite many calls for a vote in the last few weeks of the session. The proposal would merge the nine court trial systems into two. New judgeships would be created and acting justices on the Supreme Court would be eliminated. Some elected positions would remain.

However, some say the proposal still has a long way to go. Political parties aren't in favor of reform and so passage, especially in an election year, can prove difficult.

"Judgeships are the last bastions of political patronage," said Barbara Reed of the Fund for Modern Courts. "They allow local party leaders to maintain control."

Former Governor Cuomo, who appointed Judge Kaye, once said of her reform proposal, "It took 200 years to get a woman on the Court, so it'll take 220 to get a merger."

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