Judicial independence: is it preserved or impaired by the election of judges?

• Author: Ciparick, Carmen Beauchamp
• Position: Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

HUGH JONES LECTURE

ALBANY LAW SCHOOL

NOVEMBER 13, 2013

Thank you so very much Judge Lippman, for that remarkable, but highly exaggerated introduction. For the last year Judge Lippman has had the most unfortunate task of introducing me at various venues. And he never disappoints. I've said it before and I will repeat it here that you have not been introduced if you haven't been introduced by Chief Judge Jonathan Lippman. And thank you to my wonderful colleagues from the Court of Appeals who are all here tonight. You know many changes have occurred at the Court since last year's Hugh Jones lecture. Our beloved Judge Theodore Jones passed away just a year ago. (1) I retired from the court in December. (2) And we welcomed Judge Jenny Rivera and Judge Sheila Abdus-Salaam to the court earlier this year. (3) Welcome ladies. We again have a majority of women on the court. Thank you also to Dean Penny Andrews and Albany Law School for once again hosting this event and special thanks to the Fund for Modern Courts, for being in the forefront of court reform for over six decades, and for contributing to the preservation of judicial independence--my subject today--by its efforts that include merit selection of judges, campaign finance reform, and accountability of judges. And thank you Milton Williams, Jr. and others for your support in our attempt to raise the retirement age of judges. It was not to be--this time. You have asked me to continue the tradition of relevant and important lectures in honor of our esteemed former colleague at the Court of Appeals, the Honorable Judge Hugh Jones. Thank you for this wonderful opportunity to address you.

It is somewhat difficult to follow Chief Judge Judith Kaye, last year's Hugh Jones lecturer, who regaled us with stories of her personal interactions with Judge Jones. I have no such stories as Judge Jones had left the Court before I came on, but I do remember, twenty plus years ago, when I started my quest for a seat on the New York State Court of Appeals, that Judge Hugh Jones, then a retired member of the court, chaired the Commission on Judicial Nomination, before which I appeared three times, and he was always so very kind and supportive of my candidacy. He was familiar with my work as a trial judge, as he had had the opportunity on many occasions to review my decisions on appeal. In preparing for tonight's remarks I had occasion to re-read Judge Jones' Cogitations on Judicial Decision-Making, (4) and I hope that my judicial decision-making spanning over thirty-four years of judicial service, fifteen years as a trial judge, and nineteen as an appellate judge, in some small measure would have met Judge Jones' high standards.

As I indicated earlier my topic for tonight, one that I have been passionate about my whole professional life is "judicial independence." I start with the proposition that when impartial judges are free from external pressures and conflicts so that they can decide cases fairly and impartially, in accord with the applicable facts and the law, they are functioning within a system of judicial independence. But, unfortunately, this is not always the case.

Judges themselves can impair the independence of the judiciary by failing to conform to high standards of conduct. And we, as concerned citizens, should strive to remove the influences on judges that conflict with their using their best judgment in applying the law fairly. A judge who worries that a decision on the merits may impede, even end, his or her judicial career is on the brink of acting unethically and losing judicial independence. Seeking judicial office presents similar risks. A judge who suggests to the electorate, or the appointing authority, how he or she will decide cases, on issues that concern the public, impairs judicial independence, not only for that judge, but also for the judiciary in general. And a judge, who makes a decision that is not on the merits, but is intended to cater to a perception of what the public wants, violates his or her oath of office.

I have heard issues raised concerning judicial independence throughout my career. During my early career, judges complained privately about the "meddling" of court administrators and how they interfered with judges' "independence."

When the Commission on Judicial Conduct was first established, judges were worried that they would be investigated for making unpopular decisions, and that the Commission would act as an appellate court with disciplinary powers. Judges have complained, and continue to complain, that the Commission impairs their independence, but in many ways the Commission protects and enhances their independence and the independence of the judiciary generally. Significantly, despite the complaining, there has been absolutely no effort to support a case against the Commission from the public record of over 700 determinations of public discipline and 93 reviews by the Court of Appeals. (5)

My disclaimer here is that I was a Commission member for eight years (1985 through 1993), having been appointed by Governor Mario Cuomo. (6) During this time I participated in decisions to investigate and discipline judges as well as to dismiss many unfounded complaints against judges. From the very beginning, the Commission members received support from a clerk who was totally independent and who did not participate in investigations or presentation of evidence against the judges. The Commission also early on adopted fair rules that have withstood careful scrutiny over the past thirty-eight years.

As a judge of the Court of Appeals for nineteen years (1994 through 2012), I participated in deciding thirty-six cases of judicial discipline that were reviewed by the court. (7) In all thirty-six, incidentally, the court found judicial misconduct, and in thirty-two of those cases, the court accepted the precise disciplinary sanction determined by the Commission. (8) In one case, the court remanded for further proceedings, and in three cases, the court modified the penalty imposed. (9)

On previous occasions I have discussed the question of whether judicial accountability is consistent with judicial independence, and if it is, whether the New York State judicial disciplinary system accomplishes the goals as set forth in our state constitution. I have concluded that it does and that in fact judicial independence is enhanced by an effective system of judicial discipline, which we in New York are so very fortunate to enjoy. I refer you to my article in your materials on this subject. (10) Tonight, however, I would like to focus on a subset of this topic as it relates to a specific aspect of preserving the independence of the judiciary: the Commission's role in the enforcement of rules that limit campaign conduct during judicial elections.

We've just gone through what has been, in many parts of the state, highly contested judicial elections including some difficult judicial races that resulted in the loss of some highly regarded and very competent trial and appellate judges. (11) The same thing happened last year. (12) But such is the system we have in our state and we are constrained to work within that system to ensure that judicial independence is not impaired in this process. To assist us we have the New York Rules Governing Judicial Conduct, which begin with the premise that "[a]n independent and honorable judiciary is indispensable to justice in our society." (13) To that end, rules as they relate to election conduct for all judicial candidates have been promulgated (the rules are included in your materials). (14) Over the years, the Commission on Judicial Conduct has publicly disciplined eleven judges for violations of these rules pertaining to election conduct and at least fifteen others for improper political activity when judges were not running for judicial office.

It is interesting to note that the Supreme Court of the United States has weighed in on our method of selecting judges in New York. Specifically in New York State Board of Elections v. Lopez Torres, (15) the Court upheld the constitutionality of our judicial convention process for nominating New York Supreme Court Justices for election, (16) but in a concurring opinion Justice Kennedy wrote: "Even in flawed election systems there emerge brave and honorable judges who exemplify the law's ideals. But it is unfair to them and to the concept of judicial independence if the State is indifferent to a selection process open to manipulation, criticism, and serious abuse." (17) New York, I maintain, is not indifferent and has attempted to curtail such abuses.

Former United States Supreme Court Justice Sandra Day O'Connor has also maintained that the election of judges impairs the independence of the judiciary. (18) I agree with Justice O'Connor that there could be a better alternative in the selection of judges than elections. She has urged states to adopt a merit selection system. (19) However, the standard definition of merit selection around the country incorporates a retention election after a year or two of the appointed judge's term to give the voters an opportunity to say yes or no to a judge who has been appointed under merit selection. (20) The retention vote in other states has unfortunately allowed well-financed, special interest groups to defeat good judges for either their decisions or their beliefs on "hot button" issues. (21) So that brand of merit selection does not seem ideal either. We in New York partially moved toward a merit selection...