NY State Senate Bill 2009-S6080

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to judiciary
Jul 06, 2009	referred to rules

2009-S6080 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Judiciary Law
Laws Affected:: Amd §§61, 62, 63, 64, 68 & 212, rpld §65 sub 4, add §§65-a & 69, Judy L

2009-S6080 (ACTIVE) - Summary

Modernizes the commission on judicial nomination.

2009-S6080 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6080

 TITLE OF BILL :
An act to amend the judiciary law, in relation to modernizing the
commission on judicial nomination, and to repeal certain provisions of
such law relating thereto


 PURPOSE :
This measure would comprehensively modernize the Commission on
Judicial Nomination, established by Article VI of the Constitution to
recommend persons well-qualified to serve as chief judge or associate
judge of the Court of Appeals. Modeled on national best practices,
this bill would greatly improve the transparency, public outreach and
fairness of the Commission and its selection system, encourage public
participation in the process, and thus promote the creation of a
larger pool of qualified candidates - all without intruding on the
Commission's independence or disrupting the Constitution's merit
selection process.

 SUMMARY OF PROVISIONS :
Section 1 provides legislative findings and declarations in relation
to the Commission.

Section 2 makes technical amendments to Judiciary Law section 61(2).

Section 3 amends Judiciary Law section 62 in relation to members of
the Commission. After the effective date, members could serve only two
full terms, and vacancies would be created at the end of terms (ending
so-called "holdover" appointments). To discourage Commission
vacancies, the Commission would be required to inform appointing
officers 30 days before their appointees' terms expire (or immediately
for unexpected vacancies), and the number of persons required to reach
quorum (now 10) would be reduced by the number of vacancies not
greater than two (so a vacancy would not constitute a "no" vote). In
making appointments, appointing officers would be directed to consider
the need for racial, gender, ethnic, geographic and experiential
diversity.

Section 4 amends Judiciary Law section 63 to invite the Commission, in
selecting among well qualified candidates, to weigh appropriate
institutional factors such as racial, gender, ethnic, geographic and
experiential diversity. These factors would not enlarge or replace
constitutional definitions of a well-qualified candidate (e.g.
temperament, education, experience). To allow the governor to consider
a broader cross-section of nominees, consistent with the Commission's
role as a nominating panel, the Commission would be invited to
recommend nine candidates for chief judge (instead of seven) and up to
nine candidates for associate judge (instead of between three and
seven).

Section 5 amends Judiciary Law section 64 to require the Commission to
maintain a public website with expanded disclosure relating to the
Commission, the Court of Appeals, the selection process, instructions
for persons and groups wishing to recommend candidates, forms, vacancy
notices, and the expanded disclosures for candidates recommended to
the governor.

Section 6 repeals Judiciary Law section 65(4), which imposes an
anachronistic restraint on the Commission's power to consider
previously proposed candidates.

Section 7 adds a new Judiciary Law section 65-a to establish a new
selection process that would, in large measure, supplant the current
rules of the Commission, as follows:

 INTERVIEWS :
After the Commission completes review of all prospective candidates'
credentials (including disclosure forms), the Commission would
interview every candidate who receives the support of at least four
commissioners.

 DISCUSSIONS :
After interviews, the Commission would discuss each interviewee's
qualifications. Persons maintaining the support of at least four
commissioners would reach the Commission ballot.

 VOTING PROCESS :
A statutory voting process would replace the current rules, whose
complicated weighted-voting system allows a handful of commissioners
to exclude potentially meritorious candidates. The new voting process,
modeled on national best practices,(1) would provide for rounds of
voting based on merit, in which all votes are weighted equally. This
process would preserve the eight-person super majority for selection,
subject to special rules in case of Commission vacancy, and would
exclude candidates who gamer minimal or no support.

Section 8 amends Judiciary Law section 68 to complete the selection
process slightly sooner than current law requires, allowing time for
public comment on the Commission's recommendations.

Section 9 adds a new Judiciary Law section 69 to establish a process
for broad public outreach, including mandatory vacancy notices to bar
associations and other organizations, a uniform process for such
organizations to propose candidates to the Commission, and a uniform
process for timely public comment on the Commission's recommendations
to the governor. These processes would be based on existing judicial
screening systems in this state (e.g. the screening panels for
gubernatorial and mayoral appointments, voluntary party procedures for
nominating elective candidates under Part 150 of the Rules of the
Chief Administrator of the Courts, etc.), and could take into
consideration best practices across the country.

Section 10 amends Judiciary Law section 212 to direct the Office of
Court Administration, at the Commission's request, to assist the
Commission in maintaining its website and an accurate list of bar
associations and organizations slated to receive notices from the
Commission under this act.

Section 11 provides for an effective date 60 days after the bill shall
have become a law, and requires the Commission immediately to amend
its rules and begin canvassing bar associations and other
organizations for inclusion in the public participation system.

 JUSTIFICATION :

While the Commission's 30-year history includes outstanding jurists
recommended for selection by the governor and ultimately nominated to
the Court of Appeals, the Commission suffers from a perception, if not
the reality, that the selection process is not broadly inclusive or
structured to encourage a broad class of qualified jurists to apply.
While the most recent Court of Appeals vacancy perhaps is the most
illustrative of this dynamic - only a dozen persons applied in 2008 to
follow Judith Kaye as Chief Judge of New York, a global capital of law
and commerce - for years there has been a long and disturbing trend of
decreasing numbers of applications to the Commission. This trend, in
turn, raises difficult questions about recruitment of candidates for
the Court of Appeals, and thus about the Commission's effectiveness in
handing up the very best qualified jurists for service on one of the
world's pre-eminent common law courts.


Senate hearings on this subject in 2009 revealed numerous potential
reasons for this dynamic, mainly the Commission's failure to take all
reasonably practicable steps to encourage qualified persons to become
candidates. Beyond far more vigorous public outreach than has been the
Commission's practice, it is necessary to foster a more conducive
environment in which bar associations, civic groups and the public
meaningfully can propose prospective candidates for nomination. Also
necessary are broad transparency and disclosure measures to overcome
the Commission's opacity, which itself contributes to a lack of public
understanding of and trust in the merit selection process.  These
objectives, in turn, require substantial improvement of the
Commission's process of soliciting participation from all sectors of
New York's legal, civic and other public spheres, and integrating
these contributions into the selection process.

Also important are institutional considerations of diversity - racial,
gender, ethnic, geographic and experiential- both for members of the
Commission and for selection among well-qualified candidates on the
basis of temperament, education and experience. To the extent
practicable, the leaders of New York's three branches of government,
when making their appointments to the Commission, should take into
account the Commission's need to be broadly representative of the
diversity of the Empire State. Likewise, while not supplanting or
enlarging the merit-based constitutional factors for selection to the
Court of Appeals, it is appropriate that selections to the state's
highest court reflect the diversity of experience and identity that
bests promote a Judiciary open to new ideas and wisely able to balance
decisional precedent with the unprecedented challenges of modernity.

Perhaps most important to ensure the reality and perception of
fairness is to reform the Commission's opaque and manipulable voting
process. Rather than operate on a system of one-person/one-vote,
current Commission rules require commissioners to rank candidates and
sort them on the basis of total "points."  SEE  22 N.Y.C.R.R.
§7100.7(3)-(4).  This point system has the perverse effect of allowing
a small number of commissioners to block the will of even a super
majority and exclude candidates who might obtain the vote of eight
commissioners in a fair, equally-weighted vote. This result is not
only undemocratic but also palpably unfair, and substantially
contributes to a perception that the Commission is not equally
receptive to all potentially well-qualified candidates. Only by
redressing this appearance can the public be sure that the Commission
attracts and properly considers a broad cross-section of qualified
candidates for the highest and most influential judicial offices in
this state.

Such are the purposes of this bill: to modernize the Commission,
enhance recruitment by the Commission, provide the public with vital
information about the process and the candidates, give the public
meaningful opportunities to participate in the selection process and
conform the Commission's voting process to best practices nationwide.
The bill would promote these goals without resort to inappropriate
quotas or preferences, without retreating from the high standards of
excellence that must guide selection to the Court of Appeals, and
without compromising the principles of merit selection that the voters
of this state constitutionalized in 1977.

Through these reforms, the Commission on Judicial Nomination can be
restored to the high public trust that our Constitution requires, as
an example to the nation of an effective, transparent, accountable and
forward-thinking merit-selection system for a state high court.

 FISCAL IMPACT :
None.

 EFFECTIVE DATE :
This measure would take effect on the sixtieth day after the bill
shall have become a law; provided that the Commission on Judicial
Nomination immediately would be authorized and directed to amend its
rules to conform to the provisions of this act.
 LEGISLATIVE HISTORY :
None. New measure.
 FOOTNOTE :
(1) See e.g. Caufield, "How the Pickers Pick: Finding a Set of Best
Practices for Judicial Nominating Commissions," 34 Fordham Urb. L. J.
163 (2007); American Judicature Society, "Handbook for Judicial
Nomination Commissioners," at 153-166. Under this plan, the support of
any four commissioners (i.e. just one-third of the members) could
bring a candidate up for an interview and a place on the Commission's
ballot. After assembling the final list of candidates, the Commission
would discuss the candidates and place their names in alphabetical
order on a ballot. Each commissioner then would vote for a number of
candidates equal to the number of authorized choices (~nine for chief
judge). Candidates receiving at least eight votes (out of 12) would be
recommended to the governor; if too few candidates are selected in the
first round, further rounds of voting would proceed, with
commissioners choosing a number of remaining candidates equal to the
number of remaining slots to fill. Provision would be made for rounds
in which too many candidates are selected (re-vote but exclude
candidates failing to receive at least eight votes) or no candidates
are selected (re-vote but exclude the candidate who received the
fewest votes).

2009-S6080 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6080

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              July 6, 2009
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the  judiciary  law,  in  relation  to  modernizing  the
  commission on judicial nomination, and to repeal certain provisions of
  such law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative declaration. The  legislature  finds  that  the
commission on judicial nomination serves the vital purpose of soliciting
and  nominating  excellent  candidates  for  the court of appeals who by
their temperament and experience are well qualified to hold  high  judi-
cial  office.  The legislature reaffirms its commitment to this goal and
the process of merit selection for the court  of  appeals  that  is  the
commission's  constitutional  purpose.  The legislature also recognizes,
however, that the commission and its operations have not  been  reviewed
meaningfully  and  comprehensively since the commission first was estab-
lished in 1978. While more than three decades of experience  demonstrate
that the commission has recommended outstanding candidates for the court
of  appeals,  the statutory predicate for the commission is outdated and
does not fully reflect national  best  practices  for  transparency  and
accountability.    Neither  does the selection process, based on current
law, encourage a large, broad and  diverse  cross-section  of  qualified
lawyers and judges to apply for consideration by the commission, instead
yielding  a candidate pool typically too small to assure the public that
the process is as inclusive as  reasonably  practicable  and  that  such
process selects for the very best jurists to serve in this state's high-
est  judicial  offices. The legislature therefore declares its intent to
modernize the commission on judicial  nomination  and  ensure  that  the
overall selection process solicits, recruits and appropriately considers
a  broad  cross-section  of excellent jurists for high judicial service,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14528-01-9

S. 6080                             2

compatibly with both principles of merit selection and the public  trust
that the constitution vests in the commission.
  S  2.  Subdivision  2  of section 61 of the judiciary law, as added by
chapter 156 of the laws of 1978, is amended to read as follows:
  2. "Candidate" means a person who is constitutionally eligible to hold
the office of chief judge or associate judge of the court of appeals and
(a) who has requested the commission to consider his OR  HER  qualifica-
tions to hold such office; or (b) who has been recommended for consider-
ation  by  the  commission  by  another person, including a community or
professional organization, IN ACCORDANCE WITH THIS ARTICLE; or  (c)  who
has  agreed  to  be  considered  by  the  commission at the commission's
request.
  S 3. Subdivisions 2, 3, 4 and 6 of section 62 of the judiciary law, as
added by chapter 156 of the  laws  of  1978,  are  amended  to  read  as
follows:
  2. [The members first appointed by the governor shall have respective-
ly  one,  two,  three  and  four-year  terms  as he shall designate. The
members first appointed by the chief judge of the court of appeals shall
have respectively one, two, three and four-year terms as he shall desig-
nate. The member first appointed  by  the  temporary  president  of  the
senate  shall  have  a  one-year term. The member first appointed by the
minority leader of the senate shall have a  two-year  term.  The  member
first  appointed  by  the speaker of the assembly shall have a four-year
term. The member first appointed by the minority leader of the  assembly
shall have a three-year term. Each subsequent] EACH appointment shall be
for  a term of four years; PROVIDED THAT NO COMMISSIONER SHALL SERVE FOR
LONGER THAN TWO FULL TERMS AFTER THE EFFECTIVE DATE OF  THIS  PARAGRAPH,
EXCLUDING  THE  UNEXPIRED PORTION OF ANY TERM TO WHICH SUCH COMMISSIONER
INITIALLY SHALL HAVE BEEN APPOINTED PURSUANT  TO  SUBDIVISION  THREE  OF
THIS SECTION. TO THE EXTENT PRACTICABLE, EACH OFFICER MAKING AN APPOINT-
MENT TO THE COMMISSION PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL
MAKE  SUCH  APPOINTMENT  IN  A  MANNER THAT REFLECTS THE RACIAL, GENDER,
ETHNIC, GEOGRAPHIC AND EXPERIENTIAL DIVERSITY OF THE STATE.
  3. A vacancy shall be deemed to occur  immediately  upon  the  EARLIER
HAPPENING  OF  THE  EXPIRATION  OF  TERM PURSUANT TO THIS SECTION OR THE
appointment or election of any member to an office that would disqualify
him OR HER for appointment to,  or  membership  on,  the  commission.  A
vacancy  [occuring] OCCURRING for any reason other than by expiration of
term shall be filled by the appointing officer for the remainder of  the
unexpired  term.   NOT LATER THAN THIRTY DAYS BEFORE THE EXPIRATION OF A
TERM HEREUNDER, AND IMMEDIATELY UPON  THE  HAPPENING  OF  A  VACANCY  BY
REASON  OTHER THAN AN EXPIRATION OF TERM, THE COMMISSION SHALL SO INFORM
THE APPOINTING OFFICER REQUIRED BY SUBDIVISION ONE OF  THIS  SECTION  TO
APPOINT A COMMISSIONER BY REASON OF SUCH VACANCY OR EXPIRATION OF TERM.
  4. The members shall designate one of their number to serve as [chair-
man]  CHAIRPERSON  for a period of two years or until his term of office
expires, whichever period is shorter.
  6. Ten members of the commission shall constitute a quorum;  PROVIDED,
HOWEVER,  THAT  IN THE EVENT OF ONE OR MORE VACANCIES IN THE COMMISSION,
THE NUMBER OF MEMBERS REQUIRED TO CONSTITUTE A QUORUM SHALL  BE  REDUCED
BY THE NUMBER OF VACANCIES NOT GREATER THAN TWO.
  S  4.  Subdivisions  1, 2 and 3 of section 63 of the judiciary law, as
amended by chapter 35 of the laws  of  1983,  are  amended  to  read  as
follows:
  1.  The  commission  shall consider and evaluate the qualifications of
candidates for appointment to the offices of chief judge  and  associate

S. 6080                             3

judge  of  the  court  of  appeals  and, as a vacancy occurs in any such
office, shall recommend to the governor persons who by their  character,
temperament,  professional aptitude and experience are well qualified to
hold  such  judicial  office.    IN  SELECTING AMONG SUCH WELL QUALIFIED
PERSONS, TO THE EXTENT PRACTICABLE  CONSISTENT  WITH  SUBDIVISION  C  OF
SECTION  TWO  OF  ARTICLE  SIX  OF  THE CONSTITUTION, THE COMMISSION MAY
CONSIDER APPROPRIATE INSTITUTIONAL FACTORS OF  RACIAL,  GENDER,  ETHNIC,
GEOGRAPHIC,  EXPERIENTIAL  AND OTHER DIVERSITY BEARING ON THE CHARACTER,
TEMPERAMENT, APTITUDE AND EXPERIENCE OF SUCH CANDIDATES, INCLUDING EXPE-
RIENCE IN LITIGATION AND ADJUDICATION IN AND AMONG THE VARIOUS TRIBUNALS
OF THIS STATE.
  2. (a) In recognition of the  unique  responsibilities  of  the  chief
judge  of  the court of appeals for policies of judicial administration,
for a vacancy in the office of chief judge the commission  shall  recom-
mend  to  the  governor  [seven]  NINE persons; PROVIDED THAT BY VOTE IN
ACCORDANCE WITH SUBDIVISION FOUR OF SECTION SIXTY-FIVE-A OF  THIS  ARTI-
CLE, THE COMMISSION MAY RECOMMEND TO THE GOVERNOR SEVEN PERSONS.
  (b)  For  a  vacancy  in the office of associate judge, the commission
shall recommend to the governor at least [three] FIVE  persons  and  not
more than [seven] NINE persons; PROVIDED THAT BY VOTE IN ACCORDANCE WITH
SUBDIVISION FOUR OF SECTION SIXTY-FIVE-A OF THIS ARTICLE, THE COMMISSION
MAY  RECOMMEND  TO  THE GOVERNOR BETWEEN THREE AND SEVEN PERSONS. Should
more than one vacancy exist at the same time in the office of  associate
judge, the number of persons recommended by the commission to the gover-
nor  shall be at least [three] FIVE (OR THREE BY VOTE IN ACCORDANCE WITH
SUBDIVISION FOUR OF SECTION SIXTY-FIVE-A OF THIS ARTICLE) plus one addi-
tional person for each vacancy in such office, and not more than [seven]
NINE (OR SEVEN BY VOTE IN ACCORDANCE WITH SUBDIVISION  FOUR  OF  SECTION
SIXTY-FIVE-A OF THIS ARTICLE) plus one additional person for each vacan-
cy in such office.
  (c) Should vacancies exist in the offices of chief judge and associate
judge at the same time, the commission shall recommend for the office of
associate  judge  the  number of persons as provided in paragraph (b) of
this subdivision,  provided,  however,  that  in  addition  thereto  the
commission may also recommend for associate judge any of the persons who
have been recommended to the governor for the office of chief judge.
  3.  A  recommendation to the governor shall require the concurrence of
eight members of the commission, EXCEPT AS OTHERWISE PROVIDED IN  SUBDI-
VISION  SIX OF SECTION SIXTY-FIVE-A OF THIS ARTICLE. The recommendations
to the governor shall be transmitted to the governor in a single written
report which shall be released to the public by the  commission  at  the
time  it  is  submitted to the governor. The report shall be in writing,
signed only by the [chairman] CHAIRPERSON, and shall include the commis-
sion's findings relating to  the  character,  temperament,  professional
aptitude,  experience,  qualifications  and  fitness  for office of each
candidate who is recommended to the governor,  INCLUDING  A  SUMMARY  OF
MAJOR  LEGAL  MATTERS IN WHICH EACH CANDIDATE PARTICIPATED FAIRLY REPRE-
SENTATIVE OF THE EXPERIENCE  OF  SUCH  CANDIDATE,  AND  SUCH  ADDITIONAL
DETAILS AS NECESSARY TO GIVE TO THE GOVERNOR AND THE PUBLIC FULL DISCLO-
SURE  OF  THE  EXPERIENCE  AND RELATIVE STRENGTHS OF EACH CANDIDATE. THE
COMMISSION SHALL CAUSE TO BE PLACED PROMINENTLY ON ITS PUBLIC WEBSITE  A
COPY OF SUCH REPORT, INCLUDING ALL SUPPORTING MATERIALS, ON THE DAY THAT
THE COMMISSION TRANSMITS THE SAME TO THE GOVERNOR.
  S  5.  Subdivision  7 of section 64 of the judiciary law is renumbered
subdivision 8 and a new subdivision 7 is added to read as follows:

S. 6080                             4

  7.  ESTABLISH  AND  CONTINUOUSLY  MAINTAIN  A  PUBLIC   WEBSITE   THAT
DISCLOSES:  (A)  THE  NAME,  BIOGRAPHY, TERM AND APPOINTING AUTHORITY OF
EACH COMMISSIONER; (B) INFORMATION ABOUT THE COURT OF  APPEALS  AND  THE
SELECTION  PROCESS;  (C) INSTRUCTIONS TO THE PUBLIC AND ORGANIZATIONS TO
PROPOSE  PURSUANT  TO  SECTION  SIXTY-NINE  OF  THIS ARTICLE PROSPECTIVE
CANDIDATES FOR CONSIDERATION BY THE COMMISSION; (D) INSTRUCTIONS TO  THE
PUBLIC  AND ORGANIZATIONS TO COMMENT TO THE GOVERNOR PURSUANT TO SECTION
SIXTY-NINE OF THIS ARTICLE ON PERSONS RECOMMENDED BY THE COMMISSION; (E)
VACANCY NOTICES FOR THE COURT OF APPEALS PURSUANT TO SUBDIVISION ONE  OF
SECTION  SIXTY-EIGHT OF THIS ARTICLE; (F) SAMPLE COPIES OF THE CANDIDATE
QUESTIONNAIRE AND FINANCIAL  DISCLOSURE  FORM;  (G)  CONSTITUTIONAL  AND
STATUTORY AUTHORITIES GOVERNING THE COMMISSION, INCLUDING A COPY OF THIS
ARTICLE; (H) THE RULES OF THE COMMISSION; (I) INSTRUCTIONS TO THE PUBLIC
TO  REPORT  ALLEGED  VIOLATIONS  OF  THE CONFIDENTIALITY REQUIREMENTS OF
SECTION SIXTY-SEVEN OF THIS ARTICLE;  (J)  UPON  THE  RECOMMENDATION  OF
CANDIDATES  TO  THE  GOVERNOR, THE MATERIALS REQUIRED TO BE DISCLOSED TO
THE PUBLIC PURSUANT TO SUBDIVISION THREE OF SECTION SIXTY-THREE OF  THIS
ARTICLE;  AND (J) SUCH FURTHER MATERIALS AS THE GOVERNOR, CHIEF JUDGE OR
COMMISSION MAY DIRECT TO PROMOTE PUBLIC  UNDERSTANDING  OF  AND  PARTIC-
IPATION  IN  THE  NOMINATION  PROCESS  CONSISTENT  WITH THIS ARTICLE. IN
FURTHERANCE OF THE RESPONSIBILITIES OF THIS SUBDIVISION, THE  OFFICE  OF
COURT  ADMINISTRATION  SHALL,  ON  REQUEST OF THE COMMISSION, ASSIST THE
COMMISSION TO ESTABLISH AND MAINTAIN SUCH WEBSITE  IN  A  COMPREHENSIBLE
AND ACCESSIBLE FORMAT.
  S 6. Subdivision 4 of section 65 of the judiciary law is REPEALED.
  S 7. The judiciary law is amended by adding a new section 65-a to read
as follows:
  S  65-A.  COMMISSION  SELECTION  PROCESS; BALLOTS.   1. THE COMMISSION
SHALL DETERMINE WHICH PROSPECTIVE  CANDIDATES  TO  INTERVIEW,  HOW  MANY
CANDIDATES  TO  RECOMMEND  TO THE GOVERNOR, WHICH PROSPECTIVE CANDIDATES
SHALL REACH THE COMMISSION BALLOT, HOW TO CONDUCT ROUNDS OF  VOTING  AND
WHICH  CANDIDATES  TO  RECOMMEND TO THE GOVERNOR, ALL IN ACCORDANCE WITH
THIS SECTION.
  2. THE COMMISSION SHALL  INTERVIEW  EVERY  PROSPECTIVE  CANDIDATE  WHO
AFTER  REVIEW OF THEIR CREDENTIALS PURSUANT TO THIS ARTICLE SHALL OBTAIN
AN INITIAL VOTE OF SUPPORT OF AT LEAST FOUR COMMISSIONERS.
  3. AFTER COMPLETION OF ALL INTERVIEWS PURSUANT TO SUBDIVISION  TWO  OF
THIS  SECTION,  THE  COMMISSION SHALL DISCUSS THE QUALIFICATIONS OF EACH
INTERVIEWEE.  THE COMMISSION SHALL DESIGNATE AS CANDIDATES ELIGIBLE  FOR
RECOMMENDATION  TO  THE  GOVERNOR  ALL INTERVIEWEES WHO THEREAFTER SHALL
OBTAIN A VOTE OF SUPPORT OF AT LEAST FOUR COMMISSIONERS.
  4. BEFORE VOTING PURSUANT TO SUBDIVISION FIVE  OF  THIS  SECTION,  THE
COMMISSION  MAY  BY  VOTE  OF  SEVEN  COMMISSIONERS REDUCE THE NUMBER OF
CANDIDATES THE COMMISSION SHALL RECOMMEND  TO  THE  GOVERNOR  FOR  CHIEF
JUDGE  TO  SEVEN  PERSONS,  AND FOR ASSOCIATE JUDGE TO THE RANGE BETWEEN
THREE AND SEVEN PERSONS.
  5. (A) AFTER THE COMPLETION OF  DISCUSSIONS  PURSUANT  TO  SUBDIVISION
THREE  OF THIS SECTION, EACH COMMISSIONER SHALL RECEIVE A BALLOT FOR THE
FIRST ROUND OF VOTING THAT LISTS EACH CANDIDATE IN  ALPHABETICAL  ORDER.
FOR  CHIEF  JUDGE,  EACH  COMMISSIONER SHALL VOTE FOR NINE CANDIDATES OR
SUCH LESSER NUMBER OF CANDIDATES AS THE COMMISSION PREVIOUSLY  MAY  HAVE
DETERMINED  PURSUANT  TO SUBDIVISION FOUR OF THIS SECTION. FOR ASSOCIATE
JUDGE, EACH COMMISSIONER SHALL VOTE FOR NO LESS THAN FIVE  AND  NO  MORE
THAN NINE CANDIDATES, OR SUCH LESSER NUMBER OF CANDIDATES AS THE COMMIS-
SION SHALL HAVE DETERMINED PURSUANT TO SUBDIVISION FOUR OF THIS SECTION.

S. 6080                             5

  (B) EVERY CANDIDATE WHO SHALL RECEIVE EIGHT OR MORE VOTES IN ANY ROUND
OF  VOTING  SHALL BE DEEMED SELECTED FOR RECOMMENDATION TO THE GOVERNOR,
EXCEPT THAT IF A GREATER NUMBER OF CANDIDATES THAT REMAIN TO BE SELECTED
SHALL RECEIVE EIGHT OR MORE VOTES IN SUCH ROUND OF VOTING, THEN THE VOTE
IN  SUCH ROUND SHALL BE NULLIFIED, ALL CANDIDATES NOT RECEIVING AT LEAST
EIGHT VOTES IN SUCH ROUND OF VOTING SHALL BE EXCLUDED, NEW BALLOTS LIST-
ING EACH REMAINING CANDIDATE IN ALPHABETICAL ORDER SHALL BE  DISTRIBUTED
AND SUCH ROUND OF VOTING SHALL BE REPEATED.
  (C)  (I) IN ANY ROUND OF VOTING AFTER THE FIRST, FOR CHIEF JUDGE, EACH
COMMISSIONER SHALL VOTE FOR A NUMBER OF CANDIDATES EQUAL TO  THE  NUMBER
OF  VOTES  REQUIRED  BY PARAGRAPH (A) OF THIS SUBDIVISION TO BE CAST FOR
CHIEF JUDGE IN THE FIRST ROUND OF VOTING LESS THE NUMBER  OF  CANDIDATES
ALREADY  SELECTED,  AND FOR ASSOCIATE JUDGE EACH COMMISSIONER SHALL VOTE
FOR A NUMBER OF CANDIDATES WITHIN THE  RANGE  OF  THE  NUMBER  OF  VOTES
REQUIRED  BY  PARAGRAPH (A) OF THIS SUBDIVISION TO BE CAST FOR ASSOCIATE
JUDGE IN THE FIRST ROUND OF VOTING LESS THE NUMBER OF CANDIDATES ALREADY
SELECTED.
  (II) IF IN ANY ROUND OF VOTING NO CANDIDATE  SHALL  RECEIVE  EIGHT  OR
MORE  VOTES, THEN THE VOTES IN SUCH ROUND SHALL BE TABULATED, THE CANDI-
DATE RECEIVING THE FEWEST NUMBER OF VOTES SHALL BE EXCLUDED, THE VOTE IN
SUCH ROUND SHALL BE NULLIFIED, NEW BALLOTS LISTING EACH REMAINING CANDI-
DATE IN ALPHABETICAL ORDER SHALL BE DISTRIBUTED AND SUCH ROUND OF VOTING
SHALL BE REPEATED IN THE MANNER SPECIFIED BY  THIS  PARAGRAPH;  PROVIDED
THAT  IN THE EVENT OF A TIE BETWEEN TWO OR MORE CANDIDATES RECEIVING THE
FEWEST NUMBER OF VOTES, THE COMMISSION SHALL BY VOTE  OF  SEVEN  COMMIS-
SIONERS EXCLUDE ONE SUCH CANDIDATE.
  (III)  IF  AFTER  ANY  ROUND  OF VOTING THE TOTAL NUMBER OF CANDIDATES
SELECTED FOR RECOMMENDATION TO THE GOVERNOR SHALL BE LESS THAN THE MINI-
MUM NUMBER TO BE SELECTED, THEN THE COMMISSION SHALL BEGIN A  NEW  ROUND
OF  VOTING  IN WHICH EACH COMMISSIONER SHALL RECEIVE A BALLOT LISTING IN
ALPHABETICAL  ORDER  EACH  REMAINING  CANDIDATE  NOT  YET  SELECTED   OR
EXCLUDED,  AND THE VOTE IN SUCH NEW ROUND OF VOTING SHALL PROCEED IN THE
MANNER SPECIFIED BY THIS PARAGRAPH.
  (D) PRIOR TO EACH ROUND OF VOTING,  THE  COMMISSION  MAY  DISCUSS  THE
REMAINING  CANDIDATES.  AFTER  EACH  ROUND OF VOTING, THE VOTES SHALL BE
TABULATED AND THE RESULTS ANNOUNCED TO THE COMMISSION BUT THE SECRECY OF
EACH COMMISSIONER'S VOTES SHALL BE PRESERVED.
  (E) THE COMMISSION SHALL CONDUCT SUCCESSIVE ROUNDS OF VOTING  PURSUANT
TO THIS SUBDIVISION UNTIL THE COMMISSION SHALL SELECT A NUMBER OF CANDI-
DATES AUTHORIZED TO BE RECOMMENDED TO THE GOVERNOR.
  6.  IF  THERE  BE  ONE  OR  MORE VACANCIES IN THE COMMISSION, THEN THE
NUMBER OF VOTES REQUIRED IN ANY VOTE PURSUANT TO THIS SECTION  SHALL  BE
REDUCED BY THE NUMBER OF SUCH VACANCIES NOT GREATER THAN TWO.
  7. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COMMISSION
MAY BY RULE PROVIDE THAT IF THERE ARE MORE THAN TWENTY CANDIDATES ON THE
BALLOT  FOR  THE  FIRST  ROUND OF VOTING, ANY CANDIDATE RECEIVING TWO OR
FEWER VOTES IN ANY ROUND OF VOTING SHALL BE EXCLUDED.
  S 8. Subdivisions 1, 2 and 3 of  section  68  of  the  judiciary  law,
subdivisions  1 and 3 as added by chapter 156 of the laws of 1978, para-
graphs (a), (b) and (c) of subdivision 1 as amended by  chapter  853  of
the  laws of 1984 and subdivision 2 as amended by chapter 35 of the laws
of 1983, are amended to read as follows:
  1. Whenever a vacancy will occur in the office of chief judge or asso-
ciate judge of the court of appeals by expiration of term:
  (a) on December thirty-first in a year fixed by the  constitution  for
the  election  of  the governor, the clerk of the court of appeals shall

S. 6080                             6

notify the commission of the anticipated  vacancy  no  later  than  [May
first]  APRIL  TENTH.   The commission shall make its recommendations to
the governor-elect[,] on [December first] NOVEMBER TENTH.  The  governor
shall  make  his OR HER appointment from among those persons recommended
[to him] by the commission no sooner than January first nor  later  than
January fifteenth thereafter; or
  (b)  [on December thirty-first in a year fixed by the constitution for
the election of members of the senate but not the governor, the clerk of
the court of appeals shall notify  the  commission  of  the  anticipated
vacancy no later than May first. The commission shall make its recommen-
dations  to  the governor on December first. The governor shall make his
appointment from among those persons recommended to him by  the  commis-
sion no sooner than January first nor later than January fifteenth ther-
eafter; or
  (c)]  on  December  thirty-first  in  any other year, the clerk of the
court of appeals shall notify the commission of the anticipated  vacancy
no  later  than May first. The commission shall make its recommendations
to the governor no later than [October fifteenth] NOVEMBER TENTH.    The
governor  shall  make  his  OR  HER appointment from among those persons
recommended  [to  him]  by  the  commission  no  sooner  than  [November
fifteenth]  JANUARY  FIRST  nor  later  than  [December  first]  JANUARY
FIFTEENTH thereafter; or
  [(d)] (C) on any other date, the clerk of the court of  appeals  shall
notify  the  commission of the anticipated vacancy no later than [eight]
NINE months prior to the date such vacancy will occur.   The  commission
shall  make  its  recommendations  to the governor no later than [sixty]
NINETY days prior to the date of such vacancy.  The governor shall  make
his  OR HER appointment from among those persons recommended [to him] by
the commission no sooner than [fifteen] FORTY-FIVE nor more than  [thir-
ty] SIXTY days after receipt of the commission's recommendations.
  2.  Whenever  a  vacancy  occurs other than by expiration of term, the
clerk of the court of appeals shall immediately notify the commission of
such vacancy. The commission  shall  make  its  recommendations  to  the
governor  no  later  than  one hundred twenty days after receipt of such
notice. The governor shall make his OR HER appointment from among  those
persons  recommended  [to him] by the commission no sooner than [fifteen
days nor later] FORTY-FIVE NOR  MORE  than  [thirty]  SIXTY  days  after
receipt of the commission's recommendations.
  3.  Whenever a vacancy occurs and the senate is not in session to give
its advice and consent to an  appointment  to  fill  such  vacancy,  the
governor  shall  make  an  interim  appointment from among those persons
recommended [to him] by the commission.   An interim  appointment  shall
continue  until  the senate shall pass upon the governor's selection. If
the senate confirms an appointment, the judge  shall  serve  a  term  as
provided in subdivision a of section two of article six of the constitu-
tion,  commencing from the date of [his] THE interim appointment. If the
senate rejects an appointment, a vacancy in the office shall occur sixty
days after such rejection.  If an interim appointment to  the  court  of
appeals  be  made  from  among  the justices of the supreme court or the
appellate divisions thereof,  that  appointment  shall  not  affect  the
justice's existing office, nor create a vacancy in the supreme court, or
the  appellate division thereof, unless such appointment is confirmed by
the senate and the appointee shall assume such office.   If  an  interim
appointment  of  chief  judge of the court of appeals be made from among
the associate judges, an interim appointment of associate judge shall be
made in like manner; in such case, the appointment as chief judge  shall

S. 6080                             7

not  affect the existing office of associate judge, unless such appoint-
ment as chief judge is confirmed by the senate and the  appointee  shall
assume such office.
  S  9.  The judiciary law is amended by adding a new section 69 to read
as follows:
  S 69. PUBLIC PARTICIPATION.  FOR THE PURPOSE OF PROMOTING  RECRUITMENT
OF  POTENTIALLY QUALIFIED CANDIDATES FOR CONSIDERATION BY THE COMMISSION
AND ENCOURAGING PUBLIC COMMENT ON CANDIDATES RECOMMENDED BY THE  COMMIS-
SION TO THE GOVERNOR:
  1.  NOT  LATER  THAN FIVE DAYS AFTER THE CLERK OF THE COURT OF APPEALS
SHALL INFORM THE COMMISSION OF A VACANCY  OR  EXPECTED  VACANCY  IN  THE
OFFICE  OF CHIEF JUDGE OR ASSOCIATE JUDGE OF THE COURT OF APPEALS PURSU-
ANT TO SUBDIVISION ONE OR TWO OF SECTION SIXTY-EIGHT  OF  THIS  ARTICLE,
THE  COMMISSION  SHALL CAUSE TO BE TRANSMITTED A VACANCY NOTICE TO EVERY
BAR ASSOCIATION IN THIS STATE, INCLUDING BUT NOT LIMITED TO THE NEW YORK
STATE BAR ASSOCIATION, THE ASSOCIATION OF THE BAR OF  THE  CITY  OF  NEW
YORK  AND  EVERY BAR ASSOCIATION FOR ONE OR MORE COUNTIES OR CITIES, AND
EACH OTHER CIVIC, COMMUNITY OR PROFESSIONAL ORGANIZATION OF THIS  STATE,
THAT  SHALL  REGISTER  A POSTAL MAIL OR ELECTRONIC MAIL ADDRESS WITH THE
COMMISSION TO RECEIVE SUCH NOTICES, SUCH TRANSMITTAL TO BE SENT  TO  THE
POSTAL  AND/OR  ELECTRONIC  MAIL ADDRESS DESIGNATED BY EACH SUCH ASSOCI-
ATION OR ORGANIZATION. THE  COMMISSION  DILIGENTLY  SHALL  SOLICIT  SUCH
REGISTRATIONS  AND MAINTAIN AN ACCURATE DATABASE THEREOF FOR THE PURPOSE
OF MAXIMIZING TIMELY NOTIFICATION  AND  EFFECTIVE  PUBLIC  PARTICIPATION
HEREUNDER.  ALONG WITH THE VACANCY NOTICE, THE COMMISSION SHALL TRANSMIT
TO EACH SUCH ASSOCIATION OR ORGANIZATION INSTRUCTIONS IN PLAIN  LANGUAGE
FOR  HOW  TO  PROPOSE  TO THE COMMISSION ELIGIBLE PROSPECTIVE CANDIDATES
WHOM SUCH ASSOCIATION OR ORGANIZATION DEEMS  WELL  QUALIFIED  FOR  CHIEF
JUDGE  OR  ASSOCIATE  JUDGE OF THE COURT OF APPEALS, AS THE CASE MAY BE,
AND TO COMMENT ON CANDIDATES FOR SUCH OFFICE RECOMMENDED BY THE  COMMIS-
SION  TO THE GOVERNOR, INCLUDING THE DEADLINES THEREFOR, CONSISTENT WITH
THIS SECTION. SUCH VACANCY NOTICE AND INSTRUCTIONS SHALL BE  PROMINENTLY
PLACED  ON  THE  PUBLIC WEBSITE OF THE COMMISSION CONTEMPORANEOUSLY WITH
THE TRANSMITTAL THEREOF PURSUANT TO THIS SUBDIVISION.
  2. IN ACCORDANCE WITH SUBDIVISION THREE OF THIS SECTION,  THE  COMMIS-
SION SHALL ENACT AND PERIODICALLY MAY AMEND BY RULE:
  (A)  A PROCESS BY WHICH A BAR ASSOCIATION OR OTHER CIVIC, COMMUNITY OR
PROFESSIONAL ORGANIZATION MAY PROPOSE TO THE COMMISSION, IN THE NAME  OF
SUCH  ASSOCIATION  OR  ORGANIZATION,  ONE  OR  MORE ELIGIBLE PROSPECTIVE
CANDIDATES TO FILL A  VACANCY  OR  EXPECTED  VACANCY  IN  THE  COURT  OF
APPEALS,  SUCH  PROPOSAL  TO  BE TRANSMITTED TO THE COMMISSION NOT LATER
THAN SIXTY DAYS AFTER THE COMMISSION MUST  NOTIFY  SUCH  ASSOCIATION  OR
ORGANIZATION OF SUCH VACANCY; AND
  (B) A PROCESS BY WHICH A BAR ASSOCIATION OR OTHER COMMUNITY OR PROFES-
SIONAL ORGANIZATION MAY ISSUE TO THE GOVERNOR, IN THE NAME OF SUCH ASSO-
CIATION  OR ORGANIZATION, FORMAL COMMENT ON THE QUALIFICATIONS OF ONE OR
MORE CANDIDATES RECOMMENDED BY THE  COMMISSION  TO  THE  GOVERNOR,  SUCH
COMMENT  TO  BE  TRANSMITTED  TO THE GOVERNOR NOT LATER THAN THIRTY DAYS
BEFORE THE FIRST DAY ON WHICH THE GOVERNOR IS AUTHORIZED TO NOMINATE ONE
OF SUCH CANDIDATES.
  3. THE RULE SPECIFIED IN SUBDIVISION TWO OF THIS SECTION SHALL PROVIDE
FOR APPOINTMENT OF A NOMINATION COMMITTEE FOR SUCH  BAR  ASSOCIATION  OR
OTHER  CIVIC,  COMMUNITY  OR  PROFESSIONAL ORGANIZATION OF NOT LESS THAN
FIVE PERSONS FAIRLY REPRESENTATIVE OF SUCH ASSOCIATION OR  ORGANIZATION;
A METHOD BY WHICH SUCH NOMINATION COMMITTEE TIMELY SHALL SOLICIT AND MAY
RECEIVE  COMMENTS  FROM THE MEMBERS OF SUCH ASSOCIATION OR ORGANIZATION;

S. 6080                             8

AND PROCEDURES BY WHICH SUCH NOMINATION COMMITTEE FAIRLY SHALL  EVALUATE
SUCH  COMMENTS,  PROPOSE  ONE  OR MORE CANDIDATES TO THE COMMISSION, AND
MAKE PUBLIC COMMENT TO THE GOVERNOR ON THE QUALIFICATIONS OF ONE OR MORE
CANDIDATES  RECOMMENDED  BY THE COMMISSION. IN ENACTING OR AMENDING SUCH
RULE, THE COMMISSION SHALL CONSIDER EXISTING  STATUTORY  AND  REGULATORY
PROCEDURES  FOR  THE EVALUATION OR NOMINATION OF CANDIDATES FOR JUDICIAL
OFFICE IN THIS STATE.
  S 10. Subdivision 2 of section 212 of the judiciary law is amended  by
adding a new paragraph (s) to read as follows:
  (S)  AT  THE  REQUEST OF THE COMMISSION ON JUDICIAL NOMINATION, ASSIST
SUCH COMMISSION TO MAINTAIN A PUBLIC WEBSITE IN ACCORDANCE WITH SUBDIVI-
SION SEVEN OF SECTION SIXTY-FOUR OF THIS CHAPTER,  AND  TO  MAINTAIN  AN
ACCURATE  DATABASE  OF BAR ASSOCIATIONS AND CIVIC, COMMUNITY AND PROFES-
SIONAL ORGANIZATIONS OF THIS STATE REQUIRED TO RECEIVE FROM SUCH COMMIS-
SION VACANCY NOTICES FOR THE COURT OF APPEALS  PURSUANT  TO  SUBDIVISION
ONE OF SECTION SIXTY-NINE OF THIS CHAPTER.
  S  11.  This act shall take effect on the sixtieth day after this bill
shall have become a law; provided that the commission on judicial  nomi-
nation  immediately  is directed to revise its rules to conform with the
provisions of this act, and to solicit for registration with the commis-
sion bar associations and other organizations of this state specified in
subdivision 1 of section 69 of the judiciary law, as  added  by  section
nine of this act.

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Sponsored By

John L. Sampson

Archive: Last Bill Status - In Senate Committee Judiciary Committee

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