By Mary Alice Miller
When the US Supreme Court returns from its summer recess in October, one of the cases on its docket is NYS Board of Elections v. Margarita L¢pez Torres. What started as one minority woman’s quest to become a NYS Supreme Court Judge has morphed into a large-scale fight- pitting the brightest minds in NYC, NYS and the USA against each other.
In 2004, Judge L¢pez Torres went to federal District Court in NYC asking for a change in the way candidates for NYS Supreme Court are placed on the ballot. Her case was heard by U.S. District Court Judge John Gleeson, who defined the issues as the following: “The plaintiffs [Judge L¢pez Torres and several other individuals] in this case claim that New York State’s electoral process for the office of Supreme Court Justice violates the First and Fourteenth Amendments of the United States Constitution.” (The First Amendment states that ‘Congress shall make no law… abridging the freedom of speech, or of the press; of the right of the people peaceably to assemble, and to petition the Government for redress of grievances.’ The Fourteenth Amendment states ‘…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’)
Judge Gleeson goes on to explain: “Specifically, [Judge L¢pez Torres] claim[s] that the system both deprives voters of the right to choose their parties’ judicial candidates and imposes insurmountable burdens on challenger candidates who seek a major party nomination without the support of the local Democratic or Republican Party leaders.”
Judge Gleeson then goes on to define the solution Judge L¢pez Torres requests by bringing this situation to court: “The plaintiffs seek a declaration that the New York’s judicial convention system is unconstitutional and a preliminary injunction directing the New York State legislature to create a new system. In the meantime, and for as long as the legislature fails to do so, the plaintiffs request that this court direct that Supreme Court Justices be nominated through direct primary elections.”
Judge Gleeson held a hearing that spanned 13 days and generated 10,000 pages of documentary evidence. After oral arguments from both sides, Judge Gleeson wrote in his decision: “The plaintiffs have demonstrated convincingly that local major party leaders – not the voters or the delegates to the judicial nominating conventions – control who becomes a Supreme Court Justice and when. The highly unusual processes by which that extremely important office is filled perpetuate that control, and deprives the voters of any meaningful role. The result is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of the local party leaders.”
The NYS Supreme Court is a highly coveted position. It is the trial court with the broadest jurisdiction (authority). It can hear both civil and criminal matters, except claims brought against the state. Supreme Court is the only court that can grant a divorce, annulment or separation. The NYS Supreme Court’s jurisdiction creates heavy caseloads and demands a large number of judges.
NYS Supreme Court Judges serve for 14 year terms, as do Surrogate’s Judges. In Brooklyn, there are only two Surrogate’s Judge positions, who are elected through the petition, primary and general election. By contrast, there are 52 Supreme Court Justice positions in the 2nd Judicial District, which covers Brooklyn and Staten Island. NYS Supreme Court Judges are the only judges in NYS who are elected through the judicial convention process. Judges of the Court of Claims, which only hears cases brought against the State of New York or certain agencies, are appointed by the governor and serve 9-year terms. Family Court Judges serve 10-year terms. Within NYC, Family Court Judges are appointed by the mayor; Outside NYC, they are elected. NYC Civil Court Judges are elected for 10-year terms; they handle civil matters involving amounts up to $25,000 as well as issues involving real property within NYC. The Housing Part of NYC Civil Court hears landlord-tenant cases and promotes enforcement of housing codes. Housing Court Judges are appointed to 5-year terms by the administrative judge of the Civil Court. NYC Criminal Court Judges are appointed by the Mayor for 10-year terms.
Judge Margarita L¢pez Torres has a stellar professional history. She started as a substitute teacher with the NYC Board of Education, then attended Rutgers U. School of Law. After graduation, L¢pez Torres worked for 13 years as a staff attorney for several legal service organizations.
Judge Gleeson’s District Court decision describes in detail Judge L¢pez Torres’ experiences in her quest to become a Supreme Court Judge.
In 1992, L¢pez Torres became a candidate for countywide Civil Court Judge in Brooklyn. The Kings County Democratic County Committee supported her candidacy, and being uncontested on the primary ballot, she was elected in the Nov. 1992 general election.
Shortly after she was elected, L¢pez Torres was “told by [Clarence] Norman, the county leader, and Vito Lopez, her district leader, to hire a particular young attorney as her court attorney. The directive came in a Nov. 4, 1992 letter to L¢pez Torres from Steven Cohen, a Brooklyn Democratic Party official.” Judge Gleeson explains the importance of a court attorney to a Civil Court Judge. A court attorney “provides help in all phases of managing and deciding cases.” L¢pez Torres looked into this prospective court attorney’s qualifications and references, and after an interview, decided he was “unqualified for the position… she hired a qualified attorney for the position.”
This is where things get interesting. According to the case record, “This was perceived by Norman as an act of defiance. In December of 1992, Norman chastised L¢pez Torres for not hiring the young lawyer he had sent to her, telling her that she did not understand how the process worked. He directed her to fire the attorney she had hired. When L¢pez Torres refused, Norman told her she would not become a Supreme Court Justice.”
“At approximately the same time, [Vito]Lopez, the district leader who had assisted L¢pez Torres in becoming a Civil Court judge, angrily confronted L¢pez Torres about her refusal to hire the attorney sent by ‘County,’ i.e., Norman. Her ungratefulness to Norman had made Lopez look bad. To fix that problem, Lopez directed L¢pez Torres to redeem herself by firing her court attorney and hiring ‘County’s’ choice. She again refused.”
The story goes on: “In June 1995, Lopez gave L¢pez Torres another opportunity for redemption: if she hired Lopez’s daughter, a recent law school graduate, as her court attorney, Lopez would get L¢pez Torres nominated to fill an upcoming vacancy on the Supreme Court that the party leadership had earmarked for a “Latino.” L¢pez Torres declined, refusing to fire the qualified attorney she had initially hired to the position. From that point forward, Lopez never supported the judicial aspirations of L¢pez Torres, and indeed he worked against her in 2002 when she was reelected to the Civil Court.
According to Judge Gleeson’s decision: “In 1997, L¢pez Torres first sought the Democratic nomination to the office of Supreme Court Justice. She requested a meeting with Norman, who met her on August 22, 1997 in Junior’s Restaurant on Flatbush Avenue in Brooklyn. Norman reminded L¢pez Torres that her failures to hire as her court attorney the people sent to her by party leaders had been a serious breach of protocol. L¢pez Torres replied that she was at that point between court attorneys and was willing to consider a qualified applicant referred by Norman. Norman told L¢pez Torres that she needed to obtain the support of the “Latino” district leaders.
“Three weeks later, however, Norman placed an urgent call to L¢pez Torres, demanding that she remove her name from consideration at the upcoming nominating convention. Her failure to do so, Norman declared, would be a direct challenge to him. An open convention involving the competing nominations of more candidates than vacancies was “not the way it works,” according to Norman. L¢pez Torres declined, expressing the naive view that she had a right to seek the nomination at the convention even without Norman’s support. At the convention itself shortly thereafter, Norman was proved correct, as not a single delegate proposed L¢pez Torres for nomination.
(Case note: “Lopez’s daughter was hired by another Civil Court Judge in Brooklyn who was subsequently nominated and elected to the office of Supreme Court Justice.”)
“L¢pez Torres tried again in 1998, when she applied to, and was interviewed by, the Kings County Judicial Screening Committee. In late September, before the nominating convention, she tried repeatedly to ascertain the results of that process, i.e., whether the screening committee had reported her as qualified. Neither Jerome Karp, the chair of the committee, nor Norman would provide that information, so L¢pez Torres ended her bid for the nomination.
“In January 2002, L¢pez Torres renewed her effort to obtain the Democratic nomination for Supreme Court Justice. She contacted Norman and Karp to tell them so and to commence the screening process. Karp responded that the screening panel would consider only candidates referred by Norman. Norman made it clear that he would not make such a reference.
In February and again in May of 2002, he told L¢pez Torres that his concerns with her candidacy had nothing to do with her qualifications, but rather arose out of her disloyalty – her failure to hire the people sent to her by the party leadership and her refusal to withdraw her candidacy in 1997.
“Without the support of Norman, L¢pez Torres’s efforts to obtain a nomination at the 2002 convention were doomed. Her name was placed in contention by a supportive delegate, but the overwhelming majority of delegates voted instead for the package of candidates
supported by Norman.
(Case note:”While she was petitioning to get herself on the primary ballot for Civil Court in 2002, L¢pez Torres tried to include on her petitions slates of delegates to the judicial convention as well. It was a difficult task. Other elected officials who appeared with her on joint petitions and who supported her for Civil Court were reluctant to support her delegate slates because Supreme Court Justice positions were supposed to be “decided by the district leader and the county leader.” L¢pez Torres amassed many signatures [about 30,000], but they were virtually all from only eight Assembly Districts. Only 17 of the 47 delegates on the petitions, 15 of whom [from two ADs] ran without opposition, were elected.
(Case Note: The defendants’ claim that L¢pez Torres simply didn’t try hard enough to obtain the nomination [in 2002 and other years], like their attack on her qualifications, is meritless.”)
“Norman was not content to simply block L¢pez Torres’s effort to be elected as a Supreme Court Justice. In that same year, she was up for reelection to the Civil Court, and he chose to have the Democratic Party in Kings County support another nominee, an unusual tactic that evidenced the party leadership’s overt hostility toward L¢pez Torres. Elections for that judicial office, as discussed earlier, involve a primary in which a challenger candidate like L¢pez Torres can appeal directly to the voters. L¢pez Torres did just that, and she not only prevailed over the party leaders’ preferred candidate in the primary, but she received more votes in the general election for Civil Court (200,710) than any of the Democratic candidates for Supreme Court Justice received on the same day.
“In January of 2003, L¢pez Torres again wrote to Norman and Karp, declaring her candidacy for the office of Supreme Court Justice and requesting to be considered by the screening committee. At that time, it remained the policy of the committee to screen candidates only at the request of Norman or his Republican counterpart. Norman, who faced mounting criticism of the process, allowed the screening committee to interview L¢pez Torres. However, Norman still refused to support L¢pez Torres. In a meeting on June 6, 2003, he reiterated his displeasure at her refusal to withdraw her candidacy in 1997. He also stated that L¢pez Torres did not have sufficient support. Since she had been the leading vote-getter among elected judges in Brooklyn just six months earlier, Norman was not referring to support in the electorate.
Rather, he was referring to the only support that matters when it comes to Supreme Court Justice candidates in the Second District – his own and that of the district leaders. Norman summed up his position by telling L¢pez Torres that ‘County,’ i.e., the leadership of the Kings County Democratic County Committee, would only support candidates who support ‘County.’”
“As described above, L¢pez Torres’s efforts to identify and lobby the delegates to the 2003 convention were frustrated by both the timing of the relevant events and the antipathy of the party leadership. At the convention, two delegates attempted to nominate L¢pez Torres. The effort failed, and the convention nominated the package of candidates endorsed by Norman. In a letter to his fellow district leaders, District Leader Ralph Perfetto explained that he voted against the “highly qualified” L¢pez Torres because she was an “ingrate”; she had “courted Vito Lopez to support her for Civil Court, but then decided she didn’t need him anymore and denied his daughter a job.” “Too many judges have the same attitude towards district leaders,” Perfetto lamented. He offered to take a polygraph test on the question whether Norman and Lopez had influenced his vote, and denied “any ‘deals’ or conspiracy.”
“L¢pez Torres’s seven-year effort to obtain her party’s nomination for Supreme Court Justice is the selection process in microcosm. The path to the office of Supreme Court Justice runs through the county leader of the major party that dominates in that part of New York State. Without his or her support, neither superior qualifications nor widespread support among the party’s registered voters matters.” (Since initiating her claims regarding how NYS Supreme Court Judges are placed on the ballot and subsequently elected, Judge Margarita L¢pez Torres has gone on to be elected in 2006 to Surrogate in Kings County without the help of the Kings County Democratic County Committee.)
Gleeson ordered that “the defendants (the New York State Board of Elections and others) are enjoined from enforcing New York Election Law 6-106, and from using the existing procedures set forth in New York Election Law 6-124 for major party nominations for the office of Supreme Court Justice. Until the New York legislature enacts another electoral scheme, such nominations shall be made by primary election. The petitioning requirements that will attend those primary elections shall be set forth in a subsequent order, after parties have had the opportunity to be heard.”
The NY State Board of Elections appealed Gleeson’s order to the U.S. Court of Appeals for the Second Circuit, which upheld the District Court decision. The NYS Board of Elections appealed to the U.S. Supreme Court, which will hear the case during its 2007- 08 term.
(Note: When asked why the state legislature did not take up the issue of judicial conventions and how NYS Supreme Court judicial candidates are placed on the ballot as suggested in Judge Gleeson’s decision, Assemblyman Hakeem Jeffries said once the U.S. Supreme Court decided to take the case, the NYS Assembly chose not to duplicate efforts.)