Regular Session - February 13, 2006
771
1 NEW YORK STATE SENATE
2
3
4 THE STENOGRAPHIC RECORD
5
6
7
8
9 ALBANY, NEW YORK
10 February 13, 2006
11 3:04 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 LT. GOVERNOR MARY O. DONOHUE, President
19 STEVEN M. BOGGESS, Secretary
20
21
22
23
24
25
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1 P R O C E E D I N G S
2 THE PRESIDENT: The Senate will
3 please come to order.
4 I ask everyone present to please
5 rise and repeat with me the Pledge of
6 Allegiance.
7 (Whereupon, the assemblage recited
8 the Pledge of Allegiance to the Flag.)
9 THE PRESIDENT: With us this
10 afternoon to give the invocation is Rabbi
11 Israel Rubin, outreach director from the
12 Chabad House in Albany.
13 RABBI RUBIN: Today is the
14 Tu B'Shevat, the New Year for Trees. In our
15 prayer we reflect on the tree's three major
16 parts: the roots, the trunk, and the
17 branches.
18 Deeply rooted in the cities, towns
19 and villages of our great state, the
20 distinguished members of this body join in one
21 central body to assure New York State's growth
22 through the branches of government.
23 Almighty God, we pray that the saps
24 stir within, that the juices flow, that the
25 good efforts of these distinguished men and
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1 women bear fruit so our great state can
2 flourish and blossom with safety and security
3 for all.
4 Amen.
5 THE PRESIDENT: Reading of the
6 Journal.
7 THE SECRETARY: In Senate,
8 Sunday, February 12, the Senate met pursuant
9 to adjournment. The Journal of Friday,
10 February 10, was read and approved. On
11 motion, Senate adjourned.
12 THE PRESIDENT: Without
13 objection, the Journal stands approved as
14 read.
15 Presentation of petitions.
16 Messages from the Assembly.
17 Messages from the Governor.
18 Reports of standing committees.
19 Reports of select committees.
20 Communications and reports from
21 state officers.
22 Motions and resolutions.
23 Senator Meier.
24 SENATOR MEIER: Thank you, Madam
25 President.
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1 On behalf of Senator Bruno, I move
2 that the following bills be discharged from
3 their respective committees and be recommitted
4 with instructions to strike the enacting
5 clause: Senate 5513.
6 THE PRESIDENT: So ordered.
7 Senator Meier.
8 SENATOR MEIER: They gave me a
9 heavy load today, Madam President.
10 On behalf of Senator Skelos, on
11 page number 22 I offer the following
12 amendments to Calendar Number 190, Senate
13 Print 488, and ask that said bill retain its
14 place on the Third Reading Calendar.
15 THE PRESIDENT: The amendments
16 are received, and the bill will retain its
17 place on the Third Reading Calendar.
18 SENATOR MEIER: Thank you, Madam
19 President.
20 Now, on behalf of Senator Bonacic,
21 on page 14 I offer the following amendments to
22 Calendar Number 96, Senate Print Number 6415,
23 and ask that said bill retain its place on the
24 Third Reading Calendar.
25 THE PRESIDENT: The amendments
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1 are received, and the bill will retain its
2 place on the Third Reading Calendar.
3 SENATOR MEIER: Thank you, Madam
4 President.
5 Now, on behalf of Senator Golden,
6 on page number 16 I offer the following
7 amendments to Calendar Number 122, Senate
8 Print 3828A, and ask that said bill retain its
9 place on the Third Reading Calendar.
10 THE PRESIDENT: The amendments
11 are received, and the bill will retain its
12 place on the Third Reading Calendar.
13 SENATOR MEIER: Thank you, Madam
14 President.
15 THE PRESIDENT: Senator Winner.
16 SENATOR WINNER: Thank you, Madam
17 President.
18 I move that the following bills be
19 discharged from their respective committees
20 and be recommitted with instructions to strike
21 the enacting clause: Senate Bill 960, 1358,
22 1490, and 3094.
23 THE PRESIDENT: So ordered.
24 Senator Skelos.
25 SENATOR SKELOS: Madam President,
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1 if we could go to the noncontroversial reading
2 of the calendar.
3 THE PRESIDENT: The Secretary
4 will read.
5 THE SECRETARY: Calendar Number
6 75, by Senator Maziarz, Senate Print 2569A, an
7 act to amend the Labor Law, in relation to
8 appointments.
9 THE PRESIDENT: Read the last
10 section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 THE PRESIDENT: Call the roll.
14 (The Secretary called the roll.)
15 THE SECRETARY: Ayes, 48. Nays,
16 1. Senator Duane recorded in the negative.
17 THE PRESIDENT: The bill is
18 passed.
19 THE SECRETARY: Calendar Number
20 76, by Senator Maziarz, Senate Print 3108A, an
21 act to amend Part E2 of Chapter 62 of the Laws
22 of 2003, relating to establishing.
23 THE PRESIDENT: Read the last
24 section.
25 THE SECRETARY: Section 2. This
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1 act shall take effect immediately.
2 THE PRESIDENT: Call the roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes, 49.
5 THE PRESIDENT: The bill is
6 passed.
7 THE SECRETARY: Calendar Number
8 77, by Senator Maziarz, Senate Print 3109A, an
9 act to amend the Labor Law, in relation to
10 state apprenticeship.
11 THE PRESIDENT: Read the last
12 section.
13 THE SECRETARY: Section 2. This
14 act shall take effect on the 90th day.
15 THE PRESIDENT: Call the roll.
16 (The Secretary called the roll.)
17 THE SECRETARY: Ayes, 50. Nays,
18 1. Senator Duane recorded in the negative.
19 THE PRESIDENT: The bill is
20 passed.
21 THE SECRETARY: Calendar Number
22 94, by --
23 SENATOR GONZALEZ: Lay it aside.
24 THE PRESIDENT: The bill is laid
25 aside.
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1 THE SECRETARY: Calendar Number
2 102, by Senator Balboni, Senate Print 931, an
3 act to amend the Vehicle and Traffic Law, in
4 relation to aggravated unlicensed operation.
5 THE PRESIDENT: Read the last
6 section.
7 THE SECRETARY: Section 2. This
8 act shall take effect on the 90th day.
9 THE PRESIDENT: Call the roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes, 51.
12 THE PRESIDENT: The bill is
13 passed.
14 THE SECRETARY: Calendar Number
15 126, by Senator Volker, Senate Print 194, an
16 act to amend the Penal Law, in relation to
17 assaults.
18 THE PRESIDENT: Read the last
19 section.
20 THE SECRETARY: Section 2. This
21 act shall take effect immediately.
22 THE PRESIDENT: Call the roll.
23 (The Secretary called the roll.)
24 THE SECRETARY: Ayes, 51.
25 THE PRESIDENT: The bill is
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1 passed.
2 THE SECRETARY: Calendar Number
3 127, by Senator Maltese, Senate Print 274, an
4 act to amend the Penal Law, in relation to
5 clarifying.
6 THE PRESIDENT: Read the last
7 section.
8 THE SECRETARY: Section 2. This
9 act shall take effect on the first of
10 November.
11 THE PRESIDENT: Call the roll.
12 (The Secretary called the roll.)
13 THE SECRETARY: Ayes, 51.
14 THE PRESIDENT: The bill is
15 passed.
16 THE SECRETARY: Calendar Number
17 130, by Senator Little, Senate Print 719A, an
18 act to amend the Penal Law, in relation to
19 increasing the penalties for hazing.
20 THE PRESIDENT: Read the last
21 section.
22 THE SECRETARY: Section 4. This
23 act shall take effect on the first of
24 November.
25 THE PRESIDENT: Call the roll.
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1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes, 51.
3 THE PRESIDENT: The bill is
4 passed.
5 THE SECRETARY: Calendar Number
6 131, by Senator Trunzo, Senate Print 851, an
7 act to amend the Penal Law, in relation to
8 prohibiting stalking.
9 THE PRESIDENT: Read the last
10 section.
11 THE SECRETARY: Section 5. This
12 act shall take effect on the first of
13 November.
14 THE PRESIDENT: Call the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Ayes, 51.
17 THE PRESIDENT: The bill is
18 passed.
19 THE SECRETARY: Calendar Number
20 159, by Senator Fuschillo, Senate Print 1865,
21 an act to amend the Judiciary Law, in relation
22 to practicing.
23 THE PRESIDENT: Read the last
24 section.
25 THE SECRETARY: Section 3. This
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1 act shall take effect on the 60th day.
2 THE PRESIDENT: Call the roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes, 51.
5 THE PRESIDENT: The bill is
6 passed.
7 THE SECRETARY: Calendar Number
8 161, by Senator Meier, Senate Print 2507A, an
9 act to amend the Family Court Act, in relation
10 to orders of disposition.
11 THE PRESIDENT: Read the last
12 section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 THE PRESIDENT: Call the roll.
16 THE SECRETARY: Ayes, 51. Nays,
17 1. Senator Duane recorded in the negative.
18 THE PRESIDENT: The bill is
19 passed.
20 THE SECRETARY: Calendar Number
21 185, by Senator Larkin, Senate Print 1735, an
22 act to amend the Alcoholic Beverage Control
23 Law, in relation to authorizing.
24 THE PRESIDENT: Read the last
25 section.
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1 THE SECRETARY: Section 7. This
2 act shall take effect on the 180th day.
3 THE PRESIDENT: Call the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes, 52.
6 THE PRESIDENT: The bill is
7 passed.
8 THE SECRETARY: Calendar Number
9 193, by Senator Meier, Senate Print 5392A, an
10 act to amend the Social Services Law, in
11 relation to termination.
12 THE PRESIDENT: Read the last
13 section.
14 THE SECRETARY: Section 3. This
15 act shall take effect on the 90th day.
16 THE PRESIDENT: Call the roll.
17 (The Secretary called the roll.)
18 THE SECRETARY: Ayes, 52.
19 THE PRESIDENT: The bill is
20 passed.
21 THE SECRETARY: Calendar Number
22 220, by Senator DeFrancisco, Senate Print --
23 SENATOR SCHNEIDERMAN: Lay it
24 aside.
25 THE PRESIDENT: The bill is laid
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1 aside.
2 Senator Skelos, that completes the
3 noncontroversial reading of the calendar.
4 SENATOR SKELOS: Thank you, Madam
5 President. If we could ring the bells to
6 alert the members that we're going to the
7 controversial calendar.
8 THE PRESIDENT: The Secretary
9 will ring the bell, and the members should
10 return to their seats so we can begin the
11 controversial calendar.
12 The Secretary will read.
13 THE SECRETARY: Calendar Number
14 94, by Senator Bonacic, Senate Print 1768A, an
15 act to amend the Environmental Conservation
16 Law.
17 THE PRESIDENT: Senator Bonacic.
18 SENATOR BONACIC: Thank you,
19 Madam Chairman.
20 This is a bill that would require
21 the DEC commissioner, in anticipation of a
22 major inflow of water into the city's west of
23 the Hudson reservoirs, to make regulations to
24 provide that no significant overflow occurs.
25 We want to amend Section 15-0805 of the
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1 Environmental Conservation Law.
2 What I would like to do is just
3 give a little background of why this bill is
4 necessary. Right now, the City of New York
5 owns six reservoirs west of the Hudson River.
6 They own 13 small ones on the east of the
7 Hudson River. Our legislation only is
8 addressing the six reservoirs on the west of
9 the Hudson River. They are, specifically, the
10 Ashokan, the Schoharie, the Rondout, the
11 Pepacton, the Neversink, and the Cannonsville.
12 The city -- my remarks now, when I
13 say the city, this is not addressed to the
14 City of New York. It's addressed to the DEP,
15 the Department of Environmental Protection,
16 who has the obligation to make sure the dams
17 are safe and to collect, store, and deliver
18 water to New York City residents.
19 They have not done well with their
20 mission. They have said that they are not in
21 the flood control business. And this is the
22 problem. When those dams fill to a hundred
23 percent capacity -- and as of Thursday,
24 because that's the latest reading I have, five
25 of those dams are over a hundred percent
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1 capacity, and the Rondout is about
2 95 percent -- they do not take steps to
3 release some of that water now. Because, come
4 April, when we have the snow melt, when we
5 have the rains, we get tremendous floods that
6 causes loss of life and damage and destruction
7 to the homeowners that live below those dams.
8 Now, why is this bill necessary?
9 The DEP shows a lack of concern for the safety
10 of constituents and residents of upstate
11 counties. These words that the City of New
12 York shows a lack of concern for the safety of
13 residents and constituents in upstate counties
14 are words spoken four days ago by Congressman
15 Mike McNulty at an Assembly hearing in
16 Schenectady.
17 I'm going to talk about why the
18 bill is necessary, and I'm going to talk
19 numbers. Number one, 30 million. That is the
20 number of gallons of raw sewage which the DEP
21 allowed to spill into the East River --
22 nothing to do with my reservoirs, our
23 reservoirs -- the East River, because they
24 failed to put a generator on several sewage
25 treatment plants, something they said they had
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1 in their design two years ago.
2 The number 2, the number of times a
3 federal judge has ordered the DEP to be under
4 court-ordered supervision for malfeasance
5 since 2000 alone.
6 The number 18, the number of months
7 a DEP dam inspector was submitting sham,
8 photocopied dam inspection reports of the six
9 dams west of the Hudson River. The number
10 $55,000 is the salary of his boss of the DEP
11 employee reviewing and approving these sham,
12 photocopied dam inspection reports.
13 That goes to dam safety. We have
14 legislation that will be before you in the
15 near future to talk about dam safety.
16 Now I've already talked about the
17 36 million, the number of gallons per day of
18 water leaking from the city's Delaware
19 Aqueduct. So much for them caring about a
20 drought.
21 160 is the number of litigants
22 presently suing the DEP for flood damage in
23 federal and state courts -- people from
24 Delaware County, Sullivan County, and Ulster
25 County is getting ready.
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1 Eight, the number of people killed
2 in the 1968 floods near the reservoirs in
3 Delaware and Schoharie County.
4 Two, the number of people killed
5 last year in Ulster and Sullivan County as a
6 result of the April 2005 floods.
7 And last but not least,
8 $80 million, which was the cost of property
9 damage in the mid-Hudson and Catskill region
10 from the floods.
11 Now, when you talk to DEP, they
12 say: We can't control the rain, we don't know
13 how long it's going to rain. What they can do
14 is they can take steps to lower the reservoir
15 levels in anticipation of snow melt and rain
16 forecast. They have not done that
17 intelligently. They have not even wanted to
18 entertain it.
19 Now, Gilboa Dam right now, which is
20 in Senator Seward's district, there's
21 structural damage. They're trying to lower
22 the level to fix it. That water they're
23 running into the other five reservoirs,
24 creating dangerous conditions.
25 Now, as to the Schoharie, called
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1 the Gilboa Reservoir, now we know with
2 certainty that the scandalous history of
3 neglect on the part of New York City officials
4 has seriously compromised the integrity of the
5 Gilboa Dam. These are very strong, powerful
6 words. These words were spoken by Governor
7 Cuomo's Secretary of State, Gail Shaffer, four
8 days ago at an Assembly hearing.
9 Again, quoting Gail Shaffer, the
10 city has resisted any acknowledgment that
11 their purview of responsibilities should have
12 any flood control capabilities. They insist
13 that their sole priority in law is the
14 drinking water needs of the city. If so, we
15 must change the law.
16 Now, it is not my intention for one
17 minute to lower those levels where the city of
18 New York would not have enough drinking water
19 consumption. That's not the purpose of what
20 we're doing here, because we have a
21 partnership that started with the Watershed
22 Agreement in 1997. But the city will not
23 undertake flood control measures, and that's
24 where the problem lies.
25 I spoke to the Downsville Fire
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1 Company last year, in 2005. The size of the
2 water coming over the Pepacton Dam was 13 feet
3 high. Over the dam. Now, damage has to do
4 with the force of the flow and how big the
5 waives are, like a tsunami. That has caused
6 the $80 million devastation just last year
7 alone.
8 Let me tell you what some of the
9 DEP are talking about when we try to get them
10 to talk about flood control. Now, this is the
11 DEP spokesman Ian Michaels: "Just because the
12 levels are high right now, we can't just go
13 releasing high-quality drinking water. Just
14 because we have extra water doesn't mean we
15 should give it up. But we do recognize the
16 needs and concerns of people downstream. New
17 York City would be willing to consider a
18 reasonable flood control plan that is based on
19 science and is based on a reasonable
20 expectation of being able to refill those
21 reservoirs every year." That was May 5, 2005.
22 Nothing in terms of flood control.
23 Chris Ward, a former DEP
24 commissioner, states: "Residents must
25 remember the Pepacton was not designed as a
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1 flood control reservoir. It is unlikely that
2 peak flows will be much reduced. Communities
3 downstream should take steps to improve their
4 flood preparedness." That's what the former
5 commissioner has said.
6 Now, let me just talk to you about
7 the Pepacton and the Cannonsville. Two of
8 those reservoirs release water into the
9 Delaware river. There was a court decree, a
10 United States Supreme Court decree back in
11 1931; it was amended in 1954. There were four
12 states involved -- New York, Jersey,
13 Connecticut, Delaware.
14 The State of New York asked that
15 some of those waters be diverted to the City
16 of New York to enhance their drinking water
17 capacity for the residents. The court allowed
18 it. And there was a river master who would be
19 in control to -- if any of those flood levels
20 were going to change, and flow levels, you had
21 to go through him.
22 In 1961, they had a Delaware
23 Control Basin. Now, the jurisdiction of this
24 basin is ever if you want to release water off
25 the top of the Pepacton or the Cannonsville,
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1 you have to go to this commission and ask for
2 permission with the four states.
3 Now, let me tell you what DEP has
4 done. Turtle steps. But they are now saying
5 well maybe we should be considering this. And
6 these are the turtle steps. They have gone to
7 this Delaware Commission and said: You know,
8 if we anticipate we have 10 inches of snow
9 surrounding the reservoirs and it will trigger
10 3 inches of filling it, we'll lower it
11 3 inches. The board agreed. That was a
12 turtle step.
13 They have gone back, within the
14 last week and said: If we anticipate we're
15 going to have 6 inches of rain -- nothing to
16 do with the snow melt -- they have a proposal:
17 Will you let us lower the water
18 proportionately, to get rid of some water.
19 What I'm telling you now about the
20 United States Supreme Court and these
21 restrictions has nothing to do with the other
22 four reservoirs, only the two, Cannonsville
23 and Pepacton.
24 The normal storage capacity at this
25 time to make sure that the New York City water
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1 needs are met is roughly 82 percent. It's
2 spilling over today, I've told you, on five of
3 the reservoirs. I've had several members come
4 up last year in April and said: What's going
5 on? We're driving up the Thruway and
6 everything is flooded out.
7 Well, what's going on is we had
8 heavy rains, we had hurricanes, which was
9 God's act of nature, and no one controlled
10 that. But what we didn't have, we didn't have
11 a responsible DEP retrofitting their
12 reservoirs to allow -- to put valves in to be
13 releasing the waters when they get at these
14 dangerous high levels. And believe me, many
15 years we don't have this discussion. The
16 water levels are lower. We don't have to
17 engage in releasing water levels.
18 But lately, the past three years,
19 they've been abnormally high. And what we're
20 saying is we want the DEC to be able to work
21 with the DEP in regulating the release of
22 water when it's higher than the normal storage
23 capacity of those reservoirs. And they're
24 spilling over now.
25 April is always our dangerous
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1 month. And, you know, in the last ten years,
2 many people have moved up to the Hudson Valley
3 and the Catskills, many city people. Many of
4 them have second homes. Maybe your children,
5 your grandchildren or your grandparents live
6 in these areas. And I say that it is
7 foreseeable that you could take responsible
8 acts to lower those levels without
9 jeopardizing the water supply capacity to
10 New York City. That's what this bill does.
11 And I would want -- if I could draw
12 an analogy. I've been thinking about being
13 how I could make an intelligent analogy. Take
14 a contractor in New York City with a big
15 wrecking ball, and the purpose is to take down
16 a building. And that contractor says: You
17 know what? If the wind blows level or it
18 rains heavily, I can't necessarily control the
19 swing of that wrecking ball.
20 And you have constituents that live
21 in co-ops, they live in these apartments, high
22 apartments, high-level apartments, heavy
23 density. They don't know, if the rain or the
24 wind comes, whether that wrecking ball will
25 hit their building.
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1 That's how my residents feel every
2 time April comes and there's going to be heavy
3 rains, snow melt. And they live with this
4 anxiety every day. And I just told you last
5 year what the devastation was.
6 You know, April showers may bring
7 May flowers, but in my district it brings
8 death and destruction when those reservoirs
9 are abnormally high like they've been since
10 January of this year.
11 THE PRESIDENT: Senator Farley.
12 SENATOR FARLEY: Yes, thank you,
13 Madam President.
14 I rise in support of this because I
15 just want to bring to attention -- you
16 mentioned a hearing that was held in
17 Schenectady about the Gilboa Dam which is
18 involved with this and the potential for
19 flooding. This is a dam that is an accident
20 waiting to happen. And it could amount to a
21 loss of life of thousands of people in
22 Amsterdam and in Schenectady.
23 And, you know, before they had the
24 Sacandaga Reservoir, Albany used to flood,
25 Senator Breslin, every single year.
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1 And should this Gilboa Dam, which
2 is in very bad shape, not get the attention
3 that it should -- and I think if we're asking
4 DEC to come in here and look at flood control,
5 there's a desperate need and an immediate need
6 to look at this.
7 I know that Senator Seward, my
8 seatmate here, has been deeply involved in
9 this issue. But it is one that is a crisis.
10 We know what happened with the hurricane in
11 New Orleans and the Gulf Coast. I'll tell
12 you, there's one with this Gilboa Dam, should
13 that ever let go, you not only won't have
14 drinking water in New York City, you'll have
15 loss of life throughout this area.
16 And it's -- I don't know that
17 there's any way that we could prepare for
18 that. And they're trying to go forward with
19 this area. But I think this is a time for
20 EnCon to step in and look at this situation.
21 I realize that this is somewhat of a parochial
22 issue for New York City, and it's drinking
23 water and so forth. But I'll tell you, all of
24 this, this bill doesn't do anything but
25 protect, in my judgment, the possibility of
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1 drinking water for the City of New York. And
2 it also brings attention to doing something
3 about flood control.
4 It wasn't so long ago that the
5 Schoharie Creek got inundated with a
6 tremendous of amount of water and it took the
7 Thruway bridge out right out and 10 people
8 lost their lives, which was a huge tragedy.
9 Some of the people have never even been found.
10 And you have no idea the destruction that
11 water can do, particularly when it floods.
12 And I think that this is a bill
13 whose time has come and it's very, very
14 important that we address there issue.
15 THE PRESIDENT: Senator Stavisky.
16 SENATOR STAVISKY: Thank you,
17 Madam President.
18 I listened very carefully to
19 Senator Bonacic's explanation, for which I
20 thank him. And I have one question, if he
21 would yield.
22 SENATOR BONACIC: Absolutely.
23 SENATOR STAVISKY: You describe
24 the reservoirs, and I know they've been there
25 for probably 150 years or so. What would
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1 happen if there were no reservoirs? Would
2 there still be a flooding problem from the
3 runoff from the floodplain, the mountains or
4 whatever, would there still be a flooding
5 problem if New York City did not have
6 reservoirs up there?
7 SENATOR BONACIC: I don't think
8 there would be, because the problem is is when
9 you put large volumes of water in a defined,
10 limited body and you unleash it, it comes like
11 a tsunami wave. And that is what causes the
12 devastation.
13 Normally, if there were no
14 reservoirs, whatever the natural terrains are
15 through eight counties would absorb it, I
16 think, and it would be more minimal. But when
17 you collect it and put it in one spot -- and
18 the Pepacton, by the way, is the largest of
19 all New York City reservoir systems.
20 To give you an idea -- and this is
21 not exactly, but just to give you a sense, on
22 the east side of the 13 small reservoirs, it's
23 about 6 billion gallons of water per
24 reservoir; with us, on the other side,
25 72 billion gallons of water per reservoir.
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1 Almost a half trillion gallons of water.
2 And when you put it together and
3 you unleash it, that's where you're creating
4 the catastrophe.
5 SENATOR STAVISKY: My question --
6 perhaps I didn't phrase. If the Senator would
7 continue to yield.
8 SENATOR BONACIC: I will, yes.
9 SENATOR STAVISKY: I was under
10 the impression that one of the purposes of the
11 creation of dams was for flood control. And
12 you're saying to me that if there were no dams
13 in Delaware County and the surrounding
14 communities that the snowfall and the runoff
15 from the rainwater would then go into the
16 streams, presumably.
17 SENATOR BONACIC: Yes, that's
18 correct.
19 SENATOR STAVISKY: But it seems
20 to me -- please correct me if I'm wrong --
21 that then the streams would overflow their
22 banks. And the reservoirs are a form of flood
23 control.
24 SENATOR BONACIC: Again, let me
25 try to say it a different way.
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1 If there were no reservoirs -- and
2 keep in mind, it rains 12 months a year. And
3 the purpose of the reservoirs is to collect
4 water and store it where, for the rain that's
5 coming in the spring, summer, and fall, it
6 would naturally be emptying into the streams
7 as -- and would be handled in that manner.
8 But when you collect it in one spot
9 and you unleash it, you're creating a whole
10 different scenario of devastation.
11 SENATOR STAVISKY: Thank you.
12 SENATOR BONACIC: You're welcome.
13 THE PRESIDENT: Senator Liz
14 Krueger.
15 SENATOR LIZ KRUEGER: Thank you.
16 On the bill, Madam President.
17 I listened carefully to Senator
18 Bonacic, and I've been reading up on a number
19 of articles about the history of the agreement
20 of the city and the state. And I don't think
21 this is a city versus state fight. I think
22 this is a question of ensuring that we have an
23 adequate, healthy water supply for everyone in
24 the State of New York.
25 And also, though, the recognition
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1 that some of these plans are fairly old and
2 the world has changed and the environment has
3 changed. And I'd even argue that we've made
4 some mistakes over the years. I think the '97
5 decree didn't go far enough in mandating --
6 and I will both blame my own city and the
7 state on this, it allowed for overdevelopment
8 of the flood plains. That adds to the
9 problems of flooding.
10 We haven't passed wetlands
11 protection in this Legislature which would
12 assure that we were doing more to protect the
13 existing wetlands from development, ensuring
14 that there were places for the water runoff to
15 go.
16 And of course we all talk about
17 whether or not we've got this global warming
18 problem and what it means when the snows melt
19 too fast or they don't freeze at all. But
20 clearly we've seen a change in our environment
21 and our weather patterns in the last decade.
22 Which we don't know what will happen in the
23 future, but we're seeing it now.
24 And so you've convinced me that we
25 should take this step, Senator. I don't know
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1 whether it will be upheld in relationship to
2 the 1954 consent decree. I think it will
3 cause consternation for my city if this passes
4 in both houses. But I think the argument you
5 are making, that we have to do something, we
6 have to be concerned about the floods in your
7 district and others, we have to ask the
8 question what else can we do, can we pass
9 wetlands protection to decrease a further
10 erosion of the land causing greater flooding
11 in future years, can we better evaluate, in
12 2006 terms, given what's happening in the
13 environment, what we should do to try to
14 decrease development or change even the
15 patterns of uses of dams and reservoirs.
16 So while I know that my city is
17 urging me not to support this bill, I do think
18 that we have some explaining to do ourselves
19 on our failure to meet our mandates. I think
20 we -- we, the State of New York, and we as a
21 Legislature -- have an obligation to look
22 forward, evaluating the agreements we made in
23 the past, perhaps the mistakes we made
24 unintentionally, and the recognition that
25 times have changed and our environmental
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1 patterns are changing, that we have to go
2 forward with a plan -- and this might not be
3 it, by the way -- but we have to go forward
4 with a plan that will protect the integrity of
5 a clean water supply that is adequate for all
6 of the people of New York State.
7 And we have to do it in such a way
8 that you are not facing devastation whenever
9 the water table goes too high or the weather
10 patterns are not as we planned.
11 So I will support the bill. I hope
12 you will work with me to support both
13 expansion of wetlands protection,
14 environmentally sound planning in all of our
15 districts to decrease the risks of future
16 flooding, and a serious evaluation of, in the
17 21st century, what do we do to make sure that
18 we solve the problems of areas being flooded
19 while assuring that we've got a clean water
20 supply that's adequate for a growing
21 population throughout the State of New York.
22 So I will be voting for the bill.
23 Thank you, Madam President.
24 THE PRESIDENT: Senator Seward.
25 SENATOR SEWARD: Thank you, Madam
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1 President.
2 I rise in support of this
3 legislation. I commend the sponsor, Senator
4 Bonacic, for bringing it before us, and I am
5 proud to join with the Senator in sponsoring
6 the bill and supporting it.
7 I do so because I know firsthand as
8 part of my district, as does Senator Bonacic,
9 many of our constituents live in the shadow of
10 these dams. And it has become an annual rite
11 of spring, it seems, of far too often flooding
12 year after year causing a great deal of
13 devastation in property values and even, in
14 some severe cases, loss of life.
15 And there is real fear and anxiety
16 among the people who live downstream from
17 these reservoirs because there has not been
18 any attention paid to flood control as part of
19 the operation of these reservoirs. Very
20 dramatically, we're seeing it because of this
21 Gilboa Dam, which is located in Schoharie
22 County, my district, which has been cited for
23 some problems. And there's going to be some
24 temporary work done on it this spring. And in
25 2008 or 2009, there will be some long-term
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1 repairs to that dam.
2 But in the meantime, there have
3 been meetings in the Schoharie Valley which
4 have attracted literally hundreds of people
5 because they come out and they're fearful,
6 they're afraid to go to bed at night,
7 particularly on a rainy night, wondering
8 whether that dam is going to fail. And we
9 would have a major catastrophe, loss of life
10 and property.
11 That's an extreme case. But on an
12 annual basis we have this threat of flooding.
13 So this legislation, it seems to me, strikes
14 the right balance. It introduces to the
15 equation an element of flood control that we
16 all know we're going to have the spring
17 runoff, and that all we're saying under this
18 legislation, let's have DEC, through the
19 commissioner, promulgate some rules and regs
20 in terms of the operation of these facilities
21 so that the water level can go down and then,
22 because of the spring rains or runoff, the
23 water level will go back up.
24 That's some form of flood control
25 introduced here which I think is very, very
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1 important, as well as balancing the desire and
2 the need, of course, to have enough drinking
3 water for the City of New York and the other
4 uses for this water supply.
5 So I think this legislation strikes
6 the right balance. It gives those who live
7 near these dams some element of confidence
8 that something is being done to alleviate
9 these flooding conditions, as well as making
10 sure that there's an adequate drinking supply
11 for the downstate region.
12 So, Madam President, I'm pleased to
13 support the bill and hope my colleagues will
14 do the same.
15 THE PRESIDENT: Senator
16 Schneiderman.
17 SENATOR SCHNEIDERMAN: Thank you,
18 Madam President. On the bill.
19 I listened, and I don't think
20 anyone could listen to Senator Bonacic's
21 recitation of the problems that his
22 constituents face -- and that have been
23 created, in some cases, by the New York City
24 Department of Environmental Protection --
25 without being moved.
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1 I do have a concern with this
2 particular piece of legislation. I think the
3 key point really was made by Senator Stavisky.
4 There is no way that the current system of
5 dams is not making things better already in
6 terms of flood reduction. I mean, these are
7 not designed for flood reduction, but the fact
8 of the matter is when you live in an area with
9 a watershed like this, there is flooding.
10 Now, the dams reduce -- to the extent that
11 there's overflow, there would be overflow
12 anyway.
13 I would suggest that the way to
14 resolve this problem is not with the approach
15 taken in this bill. I also am concerned that
16 this is a one-house bill taking a very
17 one-sided approach. I don't think it's going
18 anywhere in the other house. This does
19 require DEP and the people in the watershed to
20 work together, as they have worked together
21 since the 1830s to resolve these problems.
22 The problem, as Senator Stavisky I
23 think pointed out, is that you're going to
24 have flooding anyway. Where you have dams,
25 they can serve to a certain extent to do flood
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1 reduction. The balance of exactly what you do
2 and how you do it is a matter of science that
3 I don't think is accurately reflected in this
4 bill.
5 This bill simply states a mandate
6 that reservoirs shall be lowered -- I'm
7 reading from the bill -- to a level that shall
8 ensure that no significant overflow takes
9 place.
10 There's not a definition, there's
11 not a time frame. These are not designed to
12 be able to be lowered very, very quickly. I
13 think that the DEP has to move forward, as
14 they are moving forward with a program that
15 has been instituted, to be able to respond
16 more quickly, to release water more quickly.
17 I think that they have to work with the
18 community, as they have for a long period of
19 time.
20 But the way for us to be good
21 neighbors here is not to mandate that the
22 state reach in and give -- use the blunt
23 instrument of this sort of order, in my view.
24 This bill, as it is drafted, I
25 don't think would solve the problem. I think
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1 it would create a whole host of other
2 problems. It does appear to be in violation
3 of the Supreme Court consent decree.
4 And furthermore, I just don't think
5 that this is the kind of approach that really
6 moves us along towards a cooperative solution.
7 I understand that one of the major reasons
8 there's flooding is that there's been a lot of
9 development in the floodplain. There's been a
10 lot of development in the wetlands areas that
11 used to absorb this runoff.
12 Maybe a more balanced approach of
13 limiting development, along with having DEP
14 change their policies, is required. That's
15 the kind of thing you get when good neighbors
16 negotiate, as they have negotiated for well
17 over 150 years to try and do this.
18 I believe, and Senator Krueger I
19 think reflected the views of a lot of those of
20 us who benefit from this water supply, that we
21 cannot avoid responsibility for it. You can
22 say it's not the city, but it is a city
23 agency. We can't avoid responsibility for
24 misconduct by this agency. If they're not
25 doing their job, they have to do their job.
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1 If there are things they can do to prevent
2 flooding, they should be doing that. I
3 believe that they are legally required to do
4 that now.
5 I just believe that this is a blunt
6 instrument that directs the lowering of water
7 levels in a way that the dams are not
8 currently set up to handle and that will
9 discourage rather than encourage the sort of
10 negotiation and cooperation that has
11 characterized the watershed agreement -- not
12 always, but for most of its life, to the great
13 benefit of all the citizens of this state.
14 I mean, it is, you know -- it's
15 ironic, I suppose, that you have the greatest
16 metropolis in the world, built because of the
17 watershed, people are buying second homes up
18 in the watershed. Couldn't have built it
19 without the watershed. And now the people
20 from the great metropolis, as Senator Bonacic
21 pointed out, are buying second homes up in the
22 watershed and creating problems.
23 But it's something that is a
24 problem for all of us in the state to work on
25 together. I do hope that we can do it in a
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1 cooperative way. I'm going to vote in
2 opposition to this bill, because I don't
3 believe this reflects either the science or
4 the legal solution to this in accordance with
5 the Supreme Court's consent decree, but with
6 the hope that we can work something out. And
7 with the recognition that those of us from
8 downstate do have a responsibility to our
9 neighbors upstate to try and do something
10 before the session is out.
11 And I hope that this is not the
12 last we're going to see of this, because it
13 would indeed be a problem if we pass a
14 one-house bill and the Assembly passes some
15 other one-house bill and we don't deal with
16 the problem at all. Which, unfortunately, is
17 what tends to occur in situations like this.
18 Thank you, Madam President.
19 THE PRESIDENT: Does any other
20 member wish to be heard?
21 Then Senator Bonacic, to close.
22 SENATOR BONACIC: Just a couple
23 of points.
24 Number one, it is a science. It
25 requires engineering. It requires
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1 sophisticated people that have the expertise
2 to know how to do intelligent flood control
3 without jeopardizing the water consumption of
4 the city's needs. The DEC has those people.
5 Now, the reason -- and the second
6 point I want to make, if this legislation
7 would become law, nothing the DEC can do could
8 preempt the Supreme Court decree of '54. That
9 is in place with the Cannonsville and the
10 Pepacton inventories. That is a different
11 avenue for flood control. It's the other four
12 reservoirs that we want to make sure there's
13 flood control devices.
14 And I will say, in conclusion, I've
15 been with Mr. Miele, the first commissioner
16 when I became a Senator, Chris Ward, and now
17 Emily Lloyd. They don't listen. They are
18 arrogant. They don't care. Now, I know these
19 are harsh words, but I can tell you firsthand
20 it's all rhetoric, no action.
21 The Gilboa, for people who have
22 lived there, people who have done work, the
23 congressmen, McNulty, Gail Shaffer, who are
24 all familiar with the history of the Gilboa
25 malfeasance. That's why they have a
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1 structural problem now. And that water is not
2 coming down naturally. They've created a
3 portal, and they're dumping it in the Esopus
4 below Shandaken and Ulster. Take a look when
5 you take a ride. Go there. The water is
6 raging, and we're not even in April yet.
7 Two instances. The Gilboa Dam,
8 13 feet of silt for a valve that could have
9 released water. Total neglect. Last year the
10 Neversink, two valves clogged, on the drawing
11 board for three years to fix. It's Sheldon
12 Silver's second-home district. They don't do
13 anything. And after the floods of 2005, two
14 months later they fixed those valves.
15 The problem is DEP is focused on
16 New York City and taking -- they don't live
17 here. And they keep saying drinking water,
18 drinking water, that's our mission, not flood
19 control. And I say I agree, the consumption
20 for New York City is important. We have to
21 make sure. But when there's spilling over and
22 your normal level is 80, 82, there's room to
23 release. And they don't do it. And they
24 haven't done it for years and years.
25 Now, I will say, in conclusion, we
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1 have had differences when we talk about
2 hunting, we talk about gun control. We have
3 regional differences for a lot of things. But
4 when it comes to the public health and safety
5 of our residents, we are one state. And I
6 know you care. I know everyone cares. And I
7 tell you that the people below those dams need
8 this legislation, because the DEP just doesn't
9 get it done.
10 Thank you very much.
11 THE PRESIDENT: The debate is
12 closed.
13 The Secretary will ring the bell.
14 Read the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect immediately.
17 THE PRESIDENT: Call the roll.
18 (The Secretary called the roll.)
19 THE PRESIDENT: Senator Balboni,
20 to explain your vote.
21 SENATOR BALBONI: Madam
22 President, this is one of these issues that
23 have compelling interests on both sides of the
24 it.
25 On the one hand, the Watershed
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1 Agreement guarantees to New York City the
2 right to have control over their drinking
3 water system. And we all understand the
4 crucial nature of that right.
5 On the other hand, when you hear
6 Senator Bonacic -- who knows probably more
7 about this subject than anybody else in the
8 Legislature -- talk with such passion, and
9 then you visit the Catskills and you see how
10 there really is a danger and abuse -- and
11 frankly, I'm as nervous as anybody in terms of
12 the vulnerability of the watershed. And the
13 allegations that Senator Bonacic has outlined
14 certainly send a clarion call that the city
15 better change the perception and the reality
16 of the security of the watershed.
17 But where do you come down on this?
18 This bill should be seen as the request for
19 more information, the request for a dialogue,
20 not just with Senator Bonacic but with this
21 Legislature, to make sure that we have taken
22 every step -- we being government -- to ensure
23 the security and the utility of this watershed
24 system.
25 So I'm going to vote with Senator
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1 Bonacic on this issue in the hopes that this
2 issue comes back shortly, because this is of
3 great concern to all New Yorkers. Because it
4 may be your drinking water, those of you folks
5 from New York City; it's my constituents that
6 drink it. I vote aye.
7 THE PRESIDENT: You will be
8 recorded as voting in the affirmative,
9 Senator.
10 The Secretary will announce the
11 results.
12 THE SECRETARY: Those recorded in
13 the negative on Calendar Number 94 are
14 Senators Connor, Diaz, Golden, Gonzalez,
15 Klein, Maltese, Onorato, Padavan, Paterson,
16 Schneiderman, and Stavisky. Also Senator C.
17 Kruger.
18 Ayes, 45. Nays, 12.
19 THE PRESIDENT: The bill is
20 passed.
21 The Secretary will continue to
22 read.
23 THE SECRETARY: Calendar Number
24 220, by Senator DeFrancisco, Senate Print 55A,
25 an act to amend the Election Law.
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1 SENATOR SCHNEIDERMAN:
2 Explanation.
3 THE PRESIDENT: Senator
4 DeFrancisco, an explanation has been
5 requested.
6 SENATOR DeFRANCISCO: Thank you,
7 Madam President.
8 Back about a couple of years ago,
9 there was a problem down in the Brooklyn area
10 concerning a judge that ended up getting
11 indicted and other charges against other
12 people. And from that point forward, there's
13 been a call for reform of the manner in which
14 judges get selected, Supreme Court judges get
15 selected.
16 And there's been generally a lot of
17 concern about the convention, judicial
18 convention process. And that discussion has
19 been going on for some time.
20 The Assembly came up with a bill
21 last year that basically sought to correct the
22 inequities of the judicial convention process
23 by creating a bureaucracy of various groups
24 throughout the State of New York that will
25 continue to study the qualifications of judges
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1 before the judges ultimately are going to be
2 appointed or nominated for office.
3 My feeling back then was if the
4 difficulty is in the selection process,
5 reviewing the merits of a judge's
6 qualification has little to do with correcting
7 the judicial process, the judicial convention
8 process.
9 So I put a bill in in January of
10 last year that basically says the convention
11 process should be abolished and we should
12 select Supreme Court judges like any other
13 judge that's selected in the State of New York
14 by the elective process.
15 Because County Court, for example,
16 and Family Court judges, the way they get
17 their nominations is they go before the party
18 rank-and-file committee members who pass
19 petitions. And if they get the nomination,
20 they're the designated candidate. But if you
21 don't get the nomination and you want it, you
22 can circulate petitions to get on the ballot
23 for a primary.
24 That's not the case with Supreme
25 Court judges presently, in that the Supreme
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1 Court judges simply go before delegates who
2 are hand-picked by the party leaders. And
3 generally speaking, that's done in September,
4 no time for anyone else to have an opportunity
5 if they're not the anointed one.
6 And so my bill a year ago, January
7 of 2005, called for the abolition of that
8 system and changing the system so it's
9 identical to other judges that get nominations
10 in Family Court and County Court. Which has
11 worked for many, many years and no one has
12 complained about it that I know of.
13 And that's what this bill is, with
14 a small amendment. I amended it this year to
15 reduce the number of signatures that are
16 required on a petition for someone who is
17 going to attempt to get the nomination by a
18 petition process who has not been the party's
19 delegate, the party's nominee through the
20 committee process.
21 And that's what this bill is. And
22 interestingly enough, a few weeks ago a
23 federal judge determined that the system was
24 unconstitutional, the convention system of
25 selecting Supreme Court judges. And as a
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1 temporary measure, the federal district court
2 judge set aside that system and says until the
3 Legislature does something, then we're going
4 to the petition process in much the same
5 fashion that this bill had suggested over a
6 year ago. And that's what this bill is about.
7 Interestingly enough, it's
8 supported by the Brennan Commission. I don't
9 agree with everything they suggest, but
10 they're enlightened from time to time. And on
11 this particular case, they're very
12 enlightened. In fact, they're the ones who
13 brought the lawsuit and -- the lawsuit that
14 ultimately rendered the -- in the decision
15 that just came down stating that the
16 convention system for judges in Supreme Court
17 is unconstitutional.
18 And so that's where the bill is and
19 that's what the bill says, and we would hope
20 that it will be passed today.
21 THE PRESIDENT: Senator Dilan.
22 SENATOR DILAN: On the bill.
23 I rise in opposition to this bill.
24 And as the ranking member on the Election
25 Committee, I urge my colleagues to vote no on
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1 this issue.
2 I also would like to commend the
3 two chairmen, the chairman of the Election
4 Committee and the chairman of the Judiciary
5 Committee, because last year they did hold a
6 public hearing of this particular bill where
7 the district attorney of Brooklyn testified,
8 the chairman of the Feerick Commission
9 testified, and various professors from law
10 universities in the state of New York.
11 However, at no point did anyone
12 support this particular bill. So I have a
13 problem with us being reactionary when it
14 comes to presenting this bill.
15 And as to Judge Gleeson's recent
16 decision, I think Judge Gleeson made that
17 decision because the current system is
18 unconstitutional because it is mandated by the
19 state. The decision does not apply to
20 political parties directly.
21 For example, if the law allowed the
22 parties to decide the matter in which the
23 candidates for justice of Supreme Court are
24 chosen, the reasoning of the judge then would
25 be moot.
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1 I believe that this bill also hurts
2 minority candidates for a position, it hurts
3 the diversity of the bench, and I think that
4 we should be looking for a more permanent fix
5 to this situation.
6 For many years we have done the
7 judicial conventions, and I believe that there
8 was also the Feerick Commission which recently
9 reported to the chief judge, and it came up
10 with various recommendations. One of them is
11 selecting judicial delegates for a period of
12 three years where all candidates would have
13 the ability to lobby these individuals. I
14 still question that particular form, but I
15 think that we need to study this more so we
16 can come up with a fair way.
17 In regard to merit selection, I
18 think it creates other problems. However, I
19 just feel that this bill will only benefit --
20 THE PRESIDENT: Excuse me,
21 Senator.
22 Senator DeFrancisco, why do you
23 rise?
24 SENATOR DeFRANCISCO: Will
25 Senator Dilan yield to a question, please?
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1 SENATOR DILAN: After I finish, I
2 will do that. Okay?
3 I believe that this will allow for
4 wealthy individuals to run. For example, this
5 year you will have incumbent judges who will
6 be running for reelection. How much time will
7 they have to raise money to run their
8 campaigns? Not much. So individuals who can
9 finance their own campaign will be able to do
10 it immediately.
11 And we need to really question that
12 diversity of the bench and where this will
13 take New York State.
14 THE PRESIDENT: Senator
15 DeFrancisco.
16 SENATOR DeFRANCISCO: Yes. One
17 of the proposals, and I think Judge Kaye is in
18 favor of it, is to have the judicial delegates
19 appointed for three years. Can you tell me
20 how that changed the system if the same people
21 are appointing those delegates?
22 SENATOR DILAN: Well, I didn't
23 say that I support that system, I said that
24 that's one of the recommendations that are
25 being made.
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1 However, I question that myself.
2 Because now you have these individuals that
3 will hold a term of three years, and everyone
4 will be lobbying these individuals. Which
5 dinner, you know, will these individuals be
6 taken to?
7 I just believe that we should study
8 this bill further, we should study the entire
9 situation where we can come up with a fair
10 system that everyone will have a chance to
11 serve as Supreme Court judge.
12 SENATOR DeFRANCISCO: Thank you.
13 The only point I'd like to raise
14 with respect to that is now the system is
15 primaries, and the system is in place by the
16 federal district court judge. So if we -- and
17 my only point simply is that we can study it a
18 long time, but as a practical matter that
19 system is now in place.
20 SENATOR DILAN: Yeah, but --
21 Madam President, may I?
22 THE PRESIDENT: Senator Dilan.
23 SENATOR DILAN: In regard to that
24 point, first of all, judicial delegates are
25 elected by the people at primaries. So the
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1 people do have a role, because they elect
2 currently the delegates to these conventions.
3 And I believe that we should just
4 find a real solution to this, because
5 primaries, what you will be doing is really
6 politicizing this process even further. Why
7 will you be doing that? Because you're going
8 to be empowering consultants. These
9 consultants will be making hundreds of
10 thousands of dollars on campaigns.
11 These judges would be subject to
12 petition challenges in court, where -- and for
13 example, this bill, in the 11th District,
14 raises the number of signatures to 7,500. In
15 most cases, you will get three times the
16 number of signatures so you can stay on the
17 ballot. You would have to pay an attorney a
18 lot of money to stay on the ballot if you're
19 challenged.
20 And who would you go to to collect
21 these signatures? You would go to the
22 political clubs within that judicial district
23 to get you those signatures.
24 So I believe that this bill would
25 politicize the process even further.
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1 THE PRESIDENT: Senator Diaz.
2 SENATOR DIAZ: Thank you, Madam
3 President. I rise to speak on the bill.
4 Since I became an elected official,
5 first as a New York City Council member and
6 now as a member of this great, great body, I
7 have learned that when the President, the
8 Governor, the Mayor, or the Legislature uses
9 the terms "reform," "redistribution" or
10 "reallocation," it is time for us in the
11 minority community to open our senses and look
12 out. Because what they're trying to do, they
13 are going to kill us. Every time that they
14 use those three words -- "reform,"
15 "redistribution," "reallocation" -- they kill
16 us.
17 For many years, when the black and
18 Hispanic community did not know how to vote or
19 how to be part of the system, during those
20 times the system was perfect and had no
21 faults. It gave the power to others to
22 select, to appoint, or to nominate whoever
23 they want for whatever position they want,
24 qualified or not. We didn't have the power.
25 Tammany Hall has always been there.
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1 It is the same system that was used by others
2 to nominate and elect others to different
3 positions. There was no time for blacks or
4 Hispanics. The system was perfect then.
5 Now, nobody questioned the system,
6 nobody ever questioned the system during this
7 time. Mayors, governors, judges, political
8 appointees, everything was okay, nice and
9 dandy. What was the difference, then? There
10 was no difference. The system is the same,
11 except that now blacks and Hispanics are
12 starting to get into the system and are
13 starting to control the system.
14 Ladies and gentlemen, when a black
15 or Hispanic learns the way to the Board of
16 Elections, when we learned the way to the
17 Board of Elections and we started to get
18 control of the system and we started to
19 dictate who's going to be the mayor, the
20 judge, or the political appointees, and when
21 they saw that their power to control the
22 system was being taken away by the minorities,
23 guess what? They started to find fault with
24 the same system and the same methods that they
25 had been using ever since.
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1 First case. In the City of
2 New York there was something called the Board
3 of Estimates. The Board of Estimates was
4 composed of the five borough presidents, the
5 mayor, and the comptroller. The five borough
6 presidents, under the system of the Board of
7 Estimates, used to control the budget of the
8 City of New York.
9 But, ladies and gentlemen, when
10 blacks and Hispanics started to get elected as
11 the borough presidents and to have the power
12 to control the city budget, guess what? They
13 decided that the Board of Estimates was
14 unconstitutional. But it was constitutional
15 all the time before. Just when we got into
16 power, oh, hold it, wait, something is wrong.
17 The system is unconstitutional.
18 So therefore they used the word
19 "reform." But before black and Hispanics
20 became borough presidents, the Board of
21 Estimates was perfect.
22 Second case was the way in which
23 the Board of Education and the local boards
24 used to choose the chancellor, the
25 superintendents, the principals and all
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1 patronage jobs in the New York City school
2 system. For years, when blacks and Hispanics
3 were not part of it, the system was perfect.
4 The system that works for others to appoint
5 and to nominate and to dispensate [sic]
6 patronage jobs was okay.
7 But when blacks and Hispanics
8 started to get control of the central and
9 local boards of education and its patronage
10 jobs, guess what? They used the words
11 "reform," "redistribution" and "reallocation,"
12 and in that way what was good for others
13 became no good for us.
14 Term limits. Thank you, my
15 sweetheart. Term limits. They were perfect
16 all the time before I was born. People was
17 there forever. But when we got into power,
18 then they decided that term limits was -- what
19 is it -- unconstitutional, and they abolished
20 term limits.
21 And now, ladies and gentlemen, for
22 many years political clubhouses -- the
23 machines, as they are called -- they have been
24 the ones in charge of selecting judges in
25 New York City. There is no difference in the
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1 way judges were selected before and the way
2 judges are selected now. Same thing. Fifty,
3 40 years, 30 years ago, the system was the
4 same.
5 So what is the big problem? The
6 big problem, ladies and gentlemen, is that the
7 party bosses, the political clubhouses and the
8 system is now becoming to be run by blacks and
9 Hispanics.
10 So guess what? That system that
11 worked for others as long as blacks and
12 Hispanics and other minorities were not in
13 charge was a good system. Now the system is
14 rotten, it stinks. But now that the
15 minorities have the power to nominate and
16 elect judges, they are saying that the system
17 is unconstitutional now and has to be reformed
18 because it violates the First and the
19 Fourteenth Amendments to the United States
20 Constitution. It never violated that before.
21 Now, when we got into power, now we start
22 violating the Constitution.
23 I am a Democrat, elected to this
24 office with the support of the Bronx
25 Democratic county organization. I am proud to
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1 stand here today and tell you that in the
2 Bronx County, an emphasis has been put on
3 equality when nominating judges. Every time
4 there have been three openings or three
5 vacancies in the Bronx County, the Bronx
6 County Committee has always nominated a black,
7 a Hispanic and a white. And women.
8 But, ladies and gentlemen, as they
9 say, be careful what you wish for -- you might
10 get it. In Bronx County, the electoral power,
11 the majority of voters are blacks and
12 Hispanics. It has been proven time after time
13 that a white judge, a white person in Bronx
14 County will never get elected if you take that
15 route.
16 The only way to have this --
17 THE PRESIDENT: Excuse me,
18 Senator.
19 Senator DeFrancisco.
20 SENATOR DIAZ: When I finish.
21 The only way to have this done is
22 with the present system that allows the
23 chairmen of the Bronx County Committee to
24 nominate judges other than black and Hispanic.
25 So, ladies and gentlemen, as a
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1 lonely voice in the desert, overlooking the
2 future, I am telling you that by reforming the
3 system to appoint judges by popular vote, you
4 are doing a great damage to those
5 well-qualified and well-prepared members of
6 the small Bronx white community. Ladies and
7 gentlemen, I am afraid that there will never,
8 ever be a white judge elected in the Bronx
9 County judicial system if the present system
10 is reformed.
11 But as I said before, I am just a
12 lonely voice in the desert telling you to be
13 careful what you wish for, you might get it.
14 Madam President, thank you very
15 much. And please be sure that my vote is put
16 on the "no" column.
17 THE PRESIDENT: Senator
18 DeFrancisco.
19 SENATOR DIAZ: I'm not taking any
20 questions.
21 SENATOR DeFRANCISCO: Oh, you're
22 not?
23 SENATOR DIAZ: No, I'm not, I'm
24 sorry.
25 THE PRESIDENT: Senator Connor.
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1 SENATOR CONNOR: Thank you, Madam
2 President.
3 First let me make some full
4 disclosure here, because it can get a little
5 confusing. In late 2004, I testified in the
6 case of Margarita Lopez Torres against the
7 State Board of Elections. I testified for the
8 defendants. I spent a day in depositions and
9 the better part of two days on the stand
10 before Judge Gleeson. I was testifying
11 against the position being advanced by
12 Margarita Lopez Torres, who was then a civil
13 court judge.
14 Why I clarify that is because last
15 fall I was retained by Margarita Lopez Torres
16 as her attorney in the recount and postprimary
17 challenges. I won that case, and she is now
18 one of the surrogates of Kings County. So it
19 can get a little confusing whose side I'm on,
20 but I know Senator DeFrancisco, being a
21 lawyer, understands perfectly why there's no
22 conflict here and why I call them the way I
23 see them.
24 In the course of testifying for the
25 defendants in my deposition, Fred Schwartz,
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1 who was one of the lawyers for the Brennan
2 Center, said to me: "So, Senator, you support
3 the present system of conventions?" And I
4 said "No." He said: "But you think it's a
5 great way to pick judges?" And I said, "No, I
6 don't think it's a great way to pick judges, I
7 just think it's far better than what you're
8 proposing to do."
9 Because the fact is -- and
10 actually, today I am completing my 28th year
11 here as a State Senator -- from the day I was
12 elected, I signed on with the Committee for
13 Modern Courts for the merit selection of
14 judges.
15 A little history, maybe. You know,
16 the idea of electing judges goes back to the
17 revolution. And in some states, the
18 revolutionary -- some of the more radical
19 states from a revolutionary standpoint were
20 much in favor of electing judges. Why? Well,
21 if you read the Declaration of Independence
22 where Jefferson sets forth the reasons for
23 declaring independence, one of the things he
24 mentions there is that the king, His Majesty
25 the King of Great Britain had set up among us
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1 strangers as our judges. The king was
2 appointing strangers from England to come here
3 and make a good living being our judges.
4 So after the successful revolution,
5 many of the early founders of the state
6 government said: Let's elect the judges. We
7 don't want any more of these elite strangers,
8 Lord this and Lord that, as our judges, with
9 the wigs and the whole thing.
10 Interestingly enough, New York, if
11 you look at the early period of this country,
12 New York tended to be more conservative than
13 Rhode Island, which was real radical, and many
14 other places.
15 New York was a mercantile state.
16 It was federalist, hamiltonian influence. It
17 was much more moderate and conservative. And
18 we had appointed judges. Now, granted, we had
19 not yet separated equity from law, so we had a
20 chancellor as well as the law courts.
21 In 1847, New York went to an
22 elected system. And as that progressed and
23 the party system -- because remember, the
24 party system didn't really appear in law in
25 New York State until the Election Law of 1897,
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1 1898, 1899, when they started having
2 primaries, which -- mandating primaries, which
3 were nothing more than caucuses. The Election
4 Law of 1909 then gave us our first primary as
5 we know it, the rank and file gets to vote.
6 So up until 1909, either a party
7 caucus or, prior to the mandate of the primary
8 being a party caucus, prior to that, in the
9 1850s, '60s, '70s, the party bosses got
10 together and nominated the candidates and the
11 voters picked in the general election. So
12 they controlled who the judges were.
13 When you get to 1909 and the
14 statute of the Election Law of 1909 mandating
15 a primary -- the state's going to print the
16 ballot, the Australian ballot, therefore the
17 party has to nominate you to get -- you're
18 guaranteed a place on the ballot, so the party
19 must do, notwithstanding the First Amendment,
20 what the state mandates in order to have
21 ballot access -- we had primaries.
22 So they had open primaries for
23 Supreme Court justices from 1909 to 1924, '25,
24 when they adopted the convention system. Why
25 did they adopt the convention system? Bar
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1 associations, a citizens' union of good
2 government groups screamed for a convention
3 system because the open primary elections had
4 been so unseemly. And money dominated, big
5 bucks.
6 Now, when they talked about big
7 money in a primary then, they probably meant
8 somebody spent $4,000 or $5,000. But it was
9 big money then. Because remember, Woodrow
10 Wilson spent, I think, $12,000 running
11 successfully for president in 1912. So the
12 fact is that this was a reform, to have
13 conventions.
14 Now, how did we get to that? In
15 theory, in the early 19th century and even in
16 those states that adopted it in the late 18th
17 century, the idea of elected judges sounded
18 good. They weren't strangers among us.
19 Everybody in a community, everybody in Albany,
20 everybody in New York City -- New York City
21 was a town then. I mean, it was a city, but
22 relatively speaking, it was small stuff --
23 they knew the lawyers. There weren't that
24 many lawyers. Certainly not what we have now.
25 And everybody knew who the
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1 reputable lawyers were, the ones that didn't
2 cheat their clients, the ones that had a
3 reputation for probity, judgment, good
4 temperament. And so the citizens were in a
5 position to cast a knowing vote for who they
6 wanted to be judge.
7 Life got more complicated in the
8 20th century, and people didn't know. And so
9 people tended to vote for the party label.
10 And the reality of judicial
11 elections today, in most parts of the state --
12 and I'm not talking about a village justice or
13 a town justice. It probably works pretty good
14 there. People know who they're electing, they
15 know them. In many cases, they're not even
16 lawyers that they elect; they don't have to
17 be. But they know who they are. They elect
18 somebody they trust. They elect somebody that
19 they're willing to have judge them.
20 But when you get to the higher
21 courts, the fact is that most people don't
22 know who they're voting for unless they happen
23 to have been someone who was once their
24 lawyer. Which would be a small percentage of
25 the electorate.
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1 So this idea of the party labels
2 means something in an election took hold. How
3 else to judge?
4 Well, there's another way to judge.
5 Wisely, voters, from what I've seen, have been
6 voting for the women candidates in the last
7 couple of decades. It's probably a wise thing
8 to do. But voters are looking for a tag line.
9 What's the problem with an open
10 primary? Well, number one, people say, Well,
11 that's how you elect civil court judges in
12 New York City, you elect them countywide, the
13 whole borough of Brooklyn, the whole borough
14 of Manhattan. You have an open primary.
15 Well, Madam President, we had a
16 problem in the '70s that we actually addressed
17 in legislation. And Speaker Silver was then a
18 young Assembly member, I remember him
19 discussing it with me, and a bill -- we put
20 forth a bill that passed.
21 There were two vacancies, there
22 were two vacancies in a civil court district
23 in Manhattan. There was only one incumbent.
24 The other incumbent had aged out and retired.
25 So what did you have in that judicial
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1 district? You had an incumbent, a very, very
2 fine incumbent that everyone respected, and
3 you had an open seat.
4 So everybody who wanted to run in
5 that district said, Well, I'm not running
6 against Judge -- I think it was Judge Sachs --
7 I'm not running against him, everybody likes
8 him, he's a good judge. And there were two
9 candidates who said, No, we're not running
10 against him, we're running against each other
11 for the open seat. And they campaigned hard
12 and they spent money and they did mailings and
13 they campaigned hard against each other for
14 the one open seat.
15 Except that was the law? Two
16 vacancies, three candidates. Guess what? The
17 two people running against each other came in
18 first and second, and the incumbent judge
19 lost. The one no one wanted to see lose,
20 lost.
21 It makes sense. We know politics;
22 we know elections. There's one incumbent busy
23 being a judge. Everybody says he's great, he
24 should be continued, nobody has an unkind word
25 about him, and there are two people out there
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1 yelling "Vote for me, vote for me."
2 How do we address that in the civil
3 court? We have an assigned vacancy law. Look
4 it up. In New York City civil court, each
5 judge, when they file their petition, has to
6 put on their petition what assigned vacancy
7 they're running for. It afforded the
8 contestants for the open seats the ability to
9 file against each other and let the incumbent
10 go free for another ten-year term.
11 Now, why do we do this? Why do we
12 protect incumbents? Well, Judge Gleeson
13 actually, in his decision, has a couple of
14 pages on this. He says, Well, if you're just
15 protecting incumbents, that's bad.
16 But he understands the rational
17 state purpose with respect to the judiciary of
18 protecting incumbents, because the overriding
19 principle -- and I think we all agree on it --
20 is to protect the independence of the
21 judiciary. And respect the fact that a judge
22 who's doing his or her job has been out of
23 politics for 10 or 14 years if they're on the
24 Supreme Court, has not been going to club
25 dinners, has not been buying gold pages in
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1 ads, has not been doing politics like we all
2 do with our two-year terms, like we all do day
3 in and day out.
4 So it's not fair, then, to say nah,
5 ha, ha, suddenly, as the ethics rules say, for
6 one year we're suspending this halo over you,
7 Judge, and you have to jump into the political
8 maelstrom, go see if anybody's left in the
9 clubhouse that you knew when you got elected
10 14 years ago or 28 years ago and try and get
11 yourself reelected.
12 So Senator DeFrancisco's bill does
13 not include an assigned vacancy provision, so
14 therefore -- which was very common in the
15 judicial districts, I think, throughout the
16 state, where you get five seats are up this
17 year but three are held by incumbents, two are
18 open.
19 Well, in an open primary situation,
20 if more than two people compete for the two
21 open seats, then all -- then the three
22 incumbents go into the pool in a six-way race
23 and the people who come in one through five
24 win. And guess what? One of the incumbents
25 is most likely to lose. Guaranteed. So
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1 that's a problem with the bill.
2 Another problem is the need for
3 money. Under the canons of judicial ethics as
4 rigorously applied by the Stern Commission, or
5 the Commission on Judicial Conduct, a
6 candidate for judicial office who's a sitting
7 judge, either in a lower court -- often the
8 case; civil court, county court, whatever --
9 or who's running for Supreme Court cannot --
10 and we say cannot raise money except for a
11 year before the election.
12 Under the canons of judicial
13 ethics, they can't raise money at all, as we
14 understand it. They can't say "Come to my
15 fundraiser." They can't say "Donate money to
16 my campaign." They're not allowed to solicit
17 any campaign contributions.
18 They're not -- this is brilliant --
19 they're not allowed to know who contributed to
20 their campaign. It is a violation of the
21 canons of judicial ethics. Forget the fact
22 that it's a public record on the website of
23 the Board of Elections and everybody else in
24 the state knows who contributed to their
25 campaign. They're not allowed to know.
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1 And you know what? Now the chief
2 judge puts a rule down, Madam President. The
3 chief judge says no lawyer can appear before
4 this judge who has contributed to her
5 campaign. Except she's not allowed to know
6 who contributed to her campaign. The rest of
7 the world knows, but she doesn't know.
8 Now, guess whose name will be in
9 the paper a day or two after a lawyer appears
10 before this judge who contributed to her
11 campaign? Not the -- well, the lawyer may get
12 a mention. It will be the judge. The
13 headline will be about the judge. The judge
14 let somebody appear in front of her who gave
15 to her campaign. Forget that if she is
16 ethical and followed the rules, she doesn't
17 know that he contributed to her campaign.
18 This is what we have started to do
19 as we have the intersection of ethical rules
20 and legal changes and federal court judges.
21 I'm reminded of this decision that threw out a
22 whole statewide scheme based, frankly, on
23 evidence that dealt with kings in New York
24 County, for the most part, with vague mentions
25 of other judicial districts. You know, as
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1 someone said to me, well, it shows the
2 difference between a federal judge and God.
3 God doesn't think he's a federal judge.
4 (Laughter.)
5 SENATOR CONNOR: But the fact is,
6 Madam President, the fact is that there's got
7 to be a better way to pick judges. And there
8 is a better way to select judges. I'm not
9 going to tell you I've quite figured it out.
10 But I think some system of merit selection of
11 judges is far better, far better than an open
12 primary, the need for money.
13 Now, we've heard colleagues say
14 what about the diversity on the bench, in the
15 direct primary? Now, I know some parts of
16 this state, and I -- look, I know this state
17 pretty well, and I've talked to candidates all
18 over this state. And in large parts of this
19 state there is not really much of what we
20 would call or political consultants would call
21 an ethnic vote.
22 But in urban areas of the state,
23 and in New York City, that's still how people
24 tend to vote. Particularly when they don't
25 know the individuals. And when you're dealing
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1 with judicial elections, they don't know the
2 individuals, by and large. But they will vote
3 for some identity tag.
4 Now, we've heard Senator Diaz say:
5 Well, it will be very hard or impossible for a
6 white to be elected to the Supreme Court in
7 the Bronx. But, you know, diversity,
8 diversity embraces also some of the -- what
9 I'd call smaller minorities in terms of their
10 size in the electorate.
11 For example, in New York City we
12 have a number of Asian-American judges. It
13 would be very, very difficult under this
14 system for an Asian-American candidate to get
15 elected to the Supreme Court. Very difficult.
16 There is an incumbent judge in
17 Manhattan, a very good judge, her last name is
18 Abdus-Salaam. Can you imagine a judicial
19 race, people don't know you, and the current
20 temper of things post-9/11, that judge running
21 for reelection? It'd be very, very difficult
22 to get elected.
23 The convention system allowed the
24 party leaders in both parties to build a
25 ticket, to build a ticket for that party that
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1 reflected the diversity of the constituency in
2 their district. And I know you don't find a
3 lot of diversity in a few parts of this state,
4 but there are other parts where you do.
5 And the one thing the parties did
6 well, leaving aside the issue of unfairness
7 that's implied by the charge of bossism --
8 which, you know, sometimes is in the eye of
9 the beholder, and sometimes it's real and it's
10 not right. But the party did have an ability
11 to represent constituency groups so that the
12 ticket as a whole had broad appeal throughout
13 the district. That's called democracy.
14 That's what a political party exists to do.
15 And that's what won't happen with
16 this open primary. Because another flaw in
17 this bill, Madam President, the Wilson-Pakula
18 law does not apply to judicial offices. You
19 don't need to be a Democrat to run in the
20 democratic primary for a judgeship, and you
21 don't need to be a Republican to run in the
22 Republican primary for a judgeship.
23 What you really are going to need,
24 Madam President, if this bill became law, or
25 if Judge Gleeson's order goes into effect for
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1 this year, is you're not going to need party
2 enrollment, you're just going to need green.
3 And I don't mean the Green Party. You're
4 going to need money.
5 Money will talk. Wealthy lawyers
6 will see an opportunity, and they will take
7 it. That's what they're trained to do.
8 And you're going to find, and it's
9 really -- fundamentally, under the First
10 Amendment, Madam President, it is not fair to
11 a political party to think that they then
12 become saddled with someone who could be
13 totally antithetical to their political
14 philosophy.
15 It really -- you know, it reminds
16 me of a primary in Louisiana years ago when
17 somebody won the Republican primary and the
18 Republican Party -- it was David Duke --
19 denounced him. He was antithetical to their
20 principles. And it was right that they did
21 what they did with respect to that candidate.
22 But it was wrong to have him inflicted on the
23 Republican Party.
24 And I say it could be wrong to have
25 someone of a totally foreign political
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1 philosophy and affiliation inflicted on a
2 political party as their Supreme Court
3 candidate.
4 And by the way, if you look at
5 ballot placements, Supreme Court, that's way
6 up there. That's above anywhere we run on the
7 ballot. For the upstaters, it's way over
8 there before anything where we get listed.
9 So I don't want to be on a ticket
10 that's headed up by someone who bought a
11 nomination and who has nothing to do with my
12 political party. And when I say "nothing to
13 do," I don't mean in an organizational sense,
14 I just mean in a philosophical sense.
15 So this is a very, very bad way to
16 pick a judge. Certainly without a
17 Wilson-Pakula law in place covering it,
18 certainly without an assigned vacancy rule in
19 place to cover it.
20 And as to the Brennan Center -- you
21 know, they brought this lawsuit, brought this
22 down on it -- it's watch what you wish for, as
23 Senator Diaz said. They got it, and now
24 they're saying: And we think it's great, as
25 long as we have public financing -- and what
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1 else did they want? Something else.
2 It's politically problematic. Not
3 that I wouldn't support it, but I've been
4 around here long enough to know that public
5 financing is, in this house, politically
6 problematic. And that translates into, let's
7 face it, the Majority's not going to do it,
8 Madam President. And so that's the excuse.
9 This would be a great, great thing if you do
10 all those other things.
11 I think we have to put our heads
12 together and we have to come up with a better
13 way to select judges in New York State. We
14 have to try and figure out a way to back away
15 from a political culture in this state that
16 politicizes the selection of judges. And I
17 don't just mean in the way that Senator
18 DeFrancisco's bill would do it, and I don't
19 mean in the way that the convention system has
20 done it, and I don't mean in the way that
21 we've had an appointive system. Because,
22 let's face it, in a political culture -- none
23 of us are political neophytes here -- politics
24 counts. That is our system.
25 But I think we need to go back, we
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1 need to look at the kind of work that the
2 Committee for Modern Courts has done over
3 these years and take a look at some system of
4 merit selection. You'll never take all the
5 politics out, but you can ensure merit, you
6 can minimize partisanship. An alert public
7 can do that by holding accountable the
8 appointing authority.
9 And is it any different than what
10 we did with the Court of Appeals? You know,
11 people say, Oh, but that would take a long
12 time. You have to amend the constitution.
13 Yeah, it would take a couple of years. We did
14 it for the Court of Appeals. I'm old enough
15 to remember when Court of Appeals candidates
16 battled it out on the airwaves and slammed
17 jail doors and did all sorts of other things
18 to get elected to the Court of Appeals. So --
19 with some irony.
20 But the fact is that we figured it
21 out for the Court of Appeals. I think we can
22 figure it out for the State Supreme Court.
23 And I think we ought to do that. And I don't
24 think we should jump in here.
25 And I do think that we ought to
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1 give due regard, Madam President. I don't
2 think Senator DeFrancisco suggested it, but
3 it's sort of implied that it's a fait accompli
4 because Judge Gleeson made his ruling. But
5 federal judges, whatever they think about the
6 deity, are subject to review by the Court of
7 Appeals. There is an appeal filed, there are
8 motions for stay filed. So it's not a done
9 deal yet.
10 I think what we ought to be doing
11 is very quickly putting our heads together and
12 coming up with a better way to pick Supreme
13 Court justices. I think if we came up with a
14 true merit appointment system that had wide
15 bipartisan support here, I think that Judge
16 Gleeson could be persuaded perhaps to even
17 stay his own order pending adoption of that
18 over the next two-year cycle as a
19 constitutional amendment.
20 But there are better ways to do
21 this. This bill is not the answer. As
22 hallowed as it is in the memories of the
23 founders of this country, the electoral system
24 has outgrown its usefulness on this level of
25 the Supreme Court.
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1 Thank you, Madam President.
2 THE PRESIDENT: Senator
3 DeFrancisco, to close.
4 Senator Schneiderman first.
5 SENATOR SCHNEIDERMAN: I don't
6 want to interrupt that closing rhythm. On the
7 bill very, very briefly, Madam President.
8 I also have serious problems with
9 the legislation as proposed. And I want to
10 just add one or two things to what my
11 colleagues have said before, before me.
12 First of all, the situation we're
13 in now is that pending further action by the
14 court, the federal judge has ordered primaries
15 until the Legislature takes action. So we
16 should be -- as Senator Connor says, we should
17 be working on the right way to solve this
18 problem, not simply doing a quick fix.
19 I know Senator DeFrancisco is
20 sincere about this and that he's had this bill
21 for a while.
22 This is not the best way to solve
23 the problem. This is not something that we
24 have given due consideration to. And I don't
25 think you have to look any further than the
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1 numerous bar association reports, good
2 government sources -- in particular, the
3 report of the Feerick Commission, which
4 explicitly addressed this, and which Chief
5 Judge Kaye referred to her in "State of the
6 Judiciary" address.
7 The Feerick Commission stated, very
8 clearly: "Given the likelihood that the
9 introduction of judicial primary races would
10 draw major financial contributions into the
11 judicial elections, the commission recommends
12 retaining judicial district nominating
13 conventions subject to significant reforms, at
14 least until New York State adopts public
15 campaign financing and other reforms."
16 So here's the Feerick Commission,
17 the greatest collection of good government
18 lawyer activists that you can find, saying we
19 should just go slow on this. There are too
20 many unintended consequences of an open
21 primary system.
22 And I respectfully suggest that the
23 bill before us today -- look, I was a partner
24 in a big law firm in Manhattan. There's never
25 been a piece of legislation that would confer
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1 greater benefits on partners of big law firms
2 in Manhattan than the bill before us today.
3 You want to know who's going to be
4 able to run for office in other counties?
5 Because there is no requirement that you live
6 in the district. You know who's going to be
7 able to afford to buy consultants and the
8 lawyers who work and, you know, are making not
9 insignificant amounts of money? It's partners
10 in big law firms in Manhattan.
11 So this is in fact -- I must say,
12 in this case, I agree that the effect would be
13 precisely what Senator Diaz has predicted.
14 This is a bill that will reduce diversity,
15 will promote the election of, you know -- and
16 I don't know that my former partners are
17 looking to run for judicial office, but this
18 would make it easier for people to run for
19 office.
20 It does not require you live in the
21 district, it does not require you belong to
22 the party in whose primary you run. And it
23 really would be open season for those with
24 money to take over our judiciary. There's no
25 doubt in my mind this would reduce diversity.
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1 And I respectfully suggest that
2 under the circumstances where the judge has
3 issued an order throwing this back to the
4 Legislature and having -- mandating primaries
5 until we take action, where there's now an
6 application for a state pending appeal
7 underway, let's slow this down, let's try and
8 come up with the right way to solve this
9 problem and not simply respond with something
10 that may appeal to one or two reform groups
11 who probably don't want to see the gain that
12 they perceive they made in this decision lost.
13 Let's slow it down. Let's try and
14 do something that will actually provide the
15 kind of judiciary we need in this state.
16 Which is a judiciary -- and in the Feerick
17 Commission report they state, in their
18 introduction, a judiciary that has public
19 confidence.
20 Without public confidence, the
21 judicial branch could not function. And if
22 the judiciary in New York is going to become a
23 judiciary dominated by wealthy white men,
24 because that's what we're talking about, it
25 will not be able to function because it will
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1 lose public confidence.
2 Let us not throw out the baby with
3 the bathwater. Let's do this the right way.
4 We're under no compulsion to pass this
5 one-house bill right now. So I would urge my
6 colleagues to vote no on this bill, and then
7 let's get to work on something that could
8 actually improve the system.
9 Thank you, Madam President.
10 THE PRESIDENT: Senator
11 DeFrancisco, to close.
12 SENATOR DeFRANCISCO: I was
13 thinking of rereading the bill, because I'm
14 not sure where all of these dire consequences
15 come from from this bill. It basically puts
16 into place what is in place for County Court,
17 Family Court, and other judges.
18 Now, for the life of me I haven't
19 seen all these problems of wealthy white
20 Manhattan males from coming up to Syracuse to
21 take over a county court judgeship and take a
22 $500,000 cut in pay. So I'm not quite sure
23 how we make these leaps, quite frankly.
24 The fact of the matter is is that
25 this system puts in place something that's
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1 been in place in all of these other
2 judgeships, and all these other dire
3 consequences have not occurred. And there are
4 some who have seen the committee process, the
5 convention process work with hand-picked
6 delegates and members of these committees
7 backing off and not voting against somebody
8 who is a very bad candidate because there's no
9 qualifications because they're worried about a
10 Senate candidate that might be someone that
11 they want to get to nomination for another,
12 totally different office.
13 It's a closed shop, a convention
14 system. It's a closed shop. It's as simple
15 as that. And all this court decision is doing
16 is saying open it up.
17 And, you know, I really take
18 offense at Senator Diaz's comments, the claims
19 that this is a racist bill. Especially when
20 his ultimate conclusion is if we have this
21 bill, you may get what you wish for. And that
22 is all judges will be black in that county,
23 because that's what the electorate is.
24 Now, how is that possible? Am I
25 missing something again? If this bill passes,
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1 then the majority of people or the vast
2 majority of people will have just about the
3 vast majority of judgeships? That's what
4 democracy is about, I think. I think that's
5 what democracy's about.
6 You know, there's a real cheap, a
7 simple system called a dictatorship. You just
8 select people for different positions, you
9 don't have to pay anything.
10 Everybody here raises money to run
11 for office. Does that mean we're all white
12 males here, the only ones that could possibly
13 raise the money in order to run a race?
14 That's all we're talking about, that if you're
15 not one of the anointed few by the powers that
16 be, you have another option to get on the
17 ballot.
18 And it's interesting, the most
19 interesting part of this is there are very,
20 very few races that I know of in County Court
21 and Family Court where someone who is not the
22 anointed one actually does a primary in
23 judicial races. It's very rare. All these
24 dire consequences? It rarely happens, because
25 most people will say, Well, if I'm not the
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1 candidate, I'm not going to go raise money,
2 I'm not interested in going forward.
3 The solution to the Feerick
4 Commission is sort of interesting. Let me
5 just point out one thing the Feerick
6 Commission did recommend, which I think shows
7 the depth of the talent on the commission.
8 That sometimes with great talent, you come up
9 with absolutely foolish decisions.
10 One of the decisions is that if you
11 get -- I think the number was, in the original
12 report, if you have -- if a person has
13 contributed $500 or more to a judicial
14 candidate, they are precluded from appearing
15 before that candidate because we don't want
16 that judge in any way to be influenced because
17 that's someone who contributed.
18 Think about that for a minute. Any
19 practicing lawyer would love to pay $500 in
20 order not to appear before a specific judge
21 that maybe they've had some bad dealings with.
22 So how is that reform? It's absolutely
23 unbelievable.
24 So what's the reform for the
25 problem that happened in Brooklyn that is
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1 suggested by the Feerick Commission, adopted
2 by the Assembly? We're going to create a
3 bureaucracy, we're going to create another
4 bureaucracy. Each judge will select five
5 members -- 15 members on each commission.
6 There's all these commissions all throughout
7 the state, the judicial election qualifying
8 commissions all over the state to determine
9 qualifications.
10 I'm not quite sure what
11 qualification commissions has to do with
12 trying to open up a process so that more
13 people have at least the opportunity to run if
14 you're not the self-anointed one.
15 So this bill is just one
16 suggestion. It's not the be-all and the
17 end-all. But it seems to me it opens the
18 process. And we're not going to be concerned,
19 I don't think, about too many primaries, at
20 least if the Supreme Court judge situation is
21 the same as the County Court and Family Court
22 judge.
23 Lastly, and I think, you know, what
24 I believe is happening -- and the Committee on
25 Modern Courts has been looking at this for
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1 years -- and that is the appointed process,
2 appointing judges. Do away with election of
3 judges. It's unseemly. It's a horrible
4 thing. And what I think is truly happening
5 here with the Feerick Commission and Judge
6 Kaye's recent suggestions as far as these
7 judicial election qualifying commissions is
8 because now we're setting in place the
9 bureaucracy that will make the transition from
10 elected judges to appointed judges.
11 And anybody who thinks for one
12 moment that there's not politics in the
13 appointment process, they don't belong in this
14 body. They're just too naive to be in this
15 body. There is politics all over the place,
16 including the selection of judges for the
17 Court of Appeals.
18 There's an example that I
19 probably -- no, I'd better not give. But it
20 was a judge that simply was, with all these
21 qualification committees, with all these
22 different groups that determine
23 qualifications, one of the Court of Appeals
24 judges in recent times was actually appointed
25 by a governor, and that particular candidate
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1 was the least qualified, according to the
2 qualifying factors that you go highly
3 qualified, qualified. And six months before
4 that time this person was determined to be
5 qualified, she was determined not to be
6 qualified for the Appellate Division, the
7 mid-level court.
8 Now, that's merit selection for
9 you. That's merit selection for you. So
10 that's just one example. It happens in every
11 county every day of the week.
12 So what we're talking about, sure,
13 it's easier, sure, it's less expensive to
14 appoint people. But on the other hand, that's
15 not what democracy is all about. We ought to
16 be able to be in a position where those who
17 are not the anointed ones at least have the
18 opportunity, if they choose to get on a
19 ballot, to try to become a judge.
20 And that's all the intent here.
21 There is no intent here to deprive any race or
22 creed of any opportunity. In fact, it opens
23 opportunities for some that have been closed
24 unless you're part of that political clique
25 and you're involved in politics to that
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1 degree.
2 So I really, truly believe that
3 this is a good bill to start the dialogue.
4 The Assembly has a bill in the Assembly
5 presently dealing with all of these committees
6 and have more judicial qualification review
7 and all of this. That's wonderful. Maybe
8 there is something in between. Maybe there is
9 something that we can negotiate. But up till
10 today, we have not had a bill pass in this
11 house on this issue. Now both houses have it.
12 And quite frankly, I would call
13 upon the leadership to try to get conference
14 committees and start talking about these
15 weighty issues that we're dealing with today.
16 This is one bill. I think it's a good bill.
17 It's not the only bill. And I think we can
18 reach a consensus if we just don't aim for
19 what I think many are aiming for, the
20 abolition of election of judges. And that we
21 truly have an election process that's fair to
22 all and gives all the opportunity to
23 participate.
24 Thank you, Madam President.
25 THE PRESIDENT: The debate is
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1 closed.
2 The Secretary will ring the bell.
3 Read the last section.
4 THE SECRETARY: Section 8. This
5 act shall take effect immediately.
6 THE PRESIDENT: Call the roll.
7 (The Secretary called the roll.)
8 THE PRESIDENT: Senator Winner,
9 to explain your vote.
10 SENATOR WINNER: Thank you, Madam
11 President. Very briefly to explain my vote.
12 In the spirit of Senator
13 DeFrancisco's assurances that this is the
14 beginning of a dialogue, I think that it is
15 important, in view of the fact that the
16 federal decision is there, it is moving us
17 toward a primary system. And in the
18 likelihood that occurs, we certainly need to
19 do a lot in order to move the process away
20 from where we are now.
21 But there's one thing that is
22 significantly missing from this debate, and
23 that is in an area such as mine that comprises
24 portions of two judicial districts. First of
25 all, I haven't heard a lot about the quality
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1 of judges. We universally feel that the
2 judges that serve our judicial district in the
3 Supreme Court are eminently qualified.
4 But what we do worry about is
5 whether or not there's going to be access to
6 justice and whether there's going to be access
7 to the services that Supreme Court provides
8 not only to the legal community but to the
9 litigants. And that is something that I'm not
10 hearing about.
11 And the problem that you're going
12 to have in areas such as mine is that we have
13 a number of rural counties that will have no
14 access to these types of judges. In the one
15 judicial district in the one half of my Senate
16 district, we have total domination by a
17 metropolitan area as to who gets elected to
18 the Supreme Court. On the other hand is the
19 portion of the judicial district that has an
20 understanding that the judicial convention
21 produces an allocation of Supreme Court judges
22 that represent all the rural areas and provide
23 that type of access to the justice that the
24 Supreme Court provides.
25 So, ladies and gentlemen, I think
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1 that we're missing some of the point as to
2 assurances that we're providing the services
3 that the Supreme Court is providing to the
4 legal community as well as the litigants. And
5 in that spirit, I hope as we move this debate
6 forward that we're not going to lose sight of
7 the services that are necessary of the Supreme
8 Court to our rural communities that are
9 otherwise not going to be provided with
10 sitting Supreme Court judges to serve those
11 rural counties.
12 And so, Madam President, in that
13 spirit I vote aye.
14 THE PRESIDENT: You will be so
15 recorded, Senator Winner.
16 Senator Connor, to explain your
17 vote.
18 SENATOR CONNOR: Thank you, Madam
19 President.
20 I want to thank Senator Winner for
21 pointing out that diversity embraces more than
22 just the complexion of one's skin or one's
23 ethnic origins, but it includes geographic
24 diversity, which is fostered by the convention
25 system.
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1 Secondly, Senator DeFrancisco,
2 Madam President, made an allusion to me that
3 maybe was missed by those who didn't read the
4 decision. The judge also missed my real
5 testimony.
6 What I testified was I didn't
7 openly fight the county chairman, not because
8 I was trying to get a nomination for
9 someone -- I was the minority leader of the
10 State Senate, and Senator Gentile, one of our
11 members, already had the nomination, was
12 engaged in an election campaign, and I needed
13 the party's support for it.
14 Judge Gleeson didn't get it; I
15 guess Senator DeFrancisco didn't get it.
16 Furthermore, let me point out that
17 with respect to the rich white guys from
18 Manhattan, you know, many of the large law
19 firms have what they call decompression.
20 Their compensation is stepped over time. So
21 in their fifties, they're making a
22 million dollars a year, and when they hit 62
23 or 65, their compensation suddenly goes down
24 to $85,000 a year. You can see that in the
25 Law Journal. There's lawsuits over it.
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1 A 65-year-old millionaire Manhattan
2 lawyer who suddenly has -- he's in the same
3 firm, but his compensation went down to
4 $65,000, just might decide he'll run for the
5 State Supreme Court. Has he ever thought
6 about running for the Civil Court of the City
7 of New York before? No. Would he think about
8 running for a County Court judge upstate? No,
9 Madam President. And he wouldn't run for a
10 Family Court seat.
11 In his mind, millionaire Manhattan
12 Wall Street lawyer thinks the Supreme Court of
13 the State of New York is worthy of his latter
14 years in the profession of law. And who
15 knows, his friends that he went to law school
16 with who live in Idaho and Iowa and elsewhere
17 will think he is on the highest court of the
18 state when they get that letterhead saying
19 "the Supreme Court of the State of New York."
20 So it will happen, Madam President.
21 These people will run when money talks.
22 THE PRESIDENT: And you will be
23 so recorded, Senator Connor.
24 Senator DeFrancisco, to explain
25 your vote.
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1 SENATOR DeFRANCISCO: Senator
2 Winner made an excellent point, and that's
3 what the whole concept is about, trying to
4 negotiate something somewhere in the middle.
5 Because there are rural districts that
6 traditionally do get judgeships that they
7 wouldn't based on the population.
8 And there's a solution to that if
9 it's negotiated, and that solution would be to
10 change the judicial districts so the judges
11 would run in a way that would make sure that
12 the rural areas would maintain their fair
13 share and local access to federal judges.
14 As far as the reference that I made
15 concerning what Senator Connor mentioned, all
16 the point was is that when you're on a
17 judicial convention as a delegate, you're in a
18 position where you have also other political
19 considerations. And other political
20 considerations can tend to allow you to ignore
21 somebody who shouldn't be nominated as a
22 judge. That's all I'm saying.
23 And that's, I think, politics that
24 would be avoided in the event that we went to
25 a system similar to the system that this bill
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1 calls for.
2 I vote aye.
3 SENATOR CONNOR: Point of
4 personal privilege.
5 I was not a convention delegate.
6 SENATOR DIAZ: To explain my
7 vote.
8 THE PRESIDENT: Senator Diaz, to
9 explain your vote.
10 SENATOR DIAZ: Thank you, Madam
11 President.
12 My name was also mentioned by the
13 good Senator over there. And what I was
14 talking about the bill has nothing to do with
15 racism. The Senator said that I was calling
16 this bill a racist bill. It has nothing to do
17 with racism.
18 It has to do with something called
19 self-preservation, preserve what you have. It
20 has nothing to do with racism, where you're
21 trying to preserve -- now there's another
22 thing that they're trying to say, merit
23 selection of judges by the governor.
24 Merit selection of judges by the
25 governor, that's another option. Meaning let
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1 the governor appoint and decide who's going to
2 be the judge. But the time that we in the
3 minority community get to become governor,
4 forget about that. So to have the governor
5 now be the one to appoint judges is another
6 way of taking away what we already are
7 achieving.
8 So, Senator, it has nothing to do
9 with racism. It has to do with
10 self-preservation. And we in the Hispanic
11 community and in the black community, we have
12 fought hard to get the same thing that all of
13 you got before for many years. Let us have
14 it. Let us enjoy it the same way you enjoyed
15 it for many years.
16 I'm voting no.
17 THE PRESIDENT: You will be so
18 recorded, Senator.
19 The Secretary will announce the
20 results.
21 THE SECRETARY: Those recorded in
22 the negative on Calendar Number 220 are
23 Senators Andrews, Breslin, Connor, Diaz,
24 Dilan, Gonzalez, Hassell-Thompson, L. Krueger,
25 C. Kruger, Onorato, Sabini, Savino,
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1 Schneiderman, A. Smith, M. Smith, Stachowski
2 and Stavisky.
3 Those Senators absent pursuant to
4 Rule 9: Senators Duane, Golden, Meier, Spano
5 and Volker.
6 Ayes, 35. Nays, 17.
7 THE PRESIDENT: The bill is
8 passed.
9 Senator Morahan, that completes the
10 reading of the calendar.
11 SENATOR MORAHAN: Thank you,
12 Madam President. Is there any business at the
13 desk, any housekeeping at the desk?
14 THE PRESIDENT: Yes, there is,
15 Senator.
16 Senator Fuschillo.
17 SENATOR FUSCHILLO: Madam
18 President, I move that the following bills be
19 discharged from their respective committees
20 and be recommitted with instructions to strike
21 the enacting clause: Senate Print Number
22 6434.
23 THE PRESIDENT: So ordered.
24 Senator Morahan.
25 SENATOR MORAHAN: Does that
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1 complete our business?
2 THE PRESIDENT: There's no
3 further housekeeping, Senator.
4 SENATOR MORAHAN: Being that
5 there's no further business before the Senate,
6 I move we adjourn until Tuesday,
7 February 14th, at 3:00 p.m.
8 THE PRESIDENT: On motion, the
9 Senate now stands adjourned until Tuesday,
10 February 14th, 3:00 p.m.
11 (Whereupon, at 5:10 p.m., the
12 Senate adjourned.)
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