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ALBANY – Governor Eliot Spitzer yesterday said he will propose constitutional amendments to consolidate New York’s “balkanized” court system and to replace the elective system of selecting judges with a merit appointment process. Mr. Spitzer, in his first State of the State address, said he supports Chief Judge Judith S. Kaye’s proposal, which would reconfigure the state’s nine trial-level courts into three tiers consisting of Supreme Court, a Surrogate’s Court and a statewide District Court. The governor said his proposed constitutional amendment will incorporate the chief judge’s plan, but did not offer further details. An independently verified audit released in 2002 estimated that Chief Judge Kaye’s court restructuring proposal would save taxpayers $24 million the first year and $131 million in its first five years. “New York has the most complex and costly court system in the country, a system that too often fails to provide justice while imposing an undue burden on taxpayers,” Mr. Spitzer said yesterday as Chief Judge Kaye, sitting in the front row with her five colleagues, beamed with delight. The speech is available at http://www.ny.gov/governor/keydocs/index.html. The chief judge, like several of her predecessors, has struggled mightily to restructure a court system designed in and for the horse-and-buggy era. But her efforts in the past have been thwarted in part due to political opposition but largely due to legislative lethargy. Chief judges and governors dating back decades have been unable to foster change. But Mark H. Alcott, president of the New York State Bar Association, said yesterday that Mr. Spitzer may well be the leader who can finally achieve results. He noted that Mr. Spitzer campaigned on a reform agenda and won with a huge mandate. In addition, Mr. Alcott said, the time is particularly ripe for merit selection because New York is under federal court order to reform the way it selects Supreme Court justices. “It is different now because we have a reform-minded governor,” said Mr. Alcott, a partner with Paul, Weiss, Rifkind, Wharton & Garrison. “His whole persona is calling for change, and he has identified this as a centerpiece of his reform agenda. I think he has both the muscle and the will to make it happen.” Attorney General Andrew M. Cuomo said he supports the governor’s judicial initiatives. Mr. Cuomo acknowledged that both proposals have been bandied around Albany for generations, but agreed with Mr. Alcott that the time is perfect for major reforms in Albany. “This is a different day,” Mr. Cuomo said. “The governor was elected with a very strong mandate for change and for action, and I think the Legislature understands that it is a different day. He is a strong leader. He laid out a strong plan and I believe it was well received by the legislators . . . Just because it didn’t happen yesterday doesn’t mean it isn’t going to happen today.” Selection of judges While Mr. Spitzer’s proposal for court consolidation was generally well received in the Legislature – assuming he and legislative leaders can agree on a specific configuration – his call for merit selection of judges was greeted with less enthusiasm. Assembly Speaker Sheldon Silver, D-Manhattan, said that while he largely favors merit selection over the elective process, he is reluctant to embrace an appointive system given former Governor George E. Pataki’s track record. Mr. Pataki has been criticized for favoring white Republicans, rarely promoting minorities to the bench and for assigning upstate Republican judges to downstate appellate divisions. (NYLJ, Jan. 2, Jan. 3) Additionally, Assembly Judiciary Committee Chairwoman Helene E. Weinstein, a Brooklyn Democrat who recently held a series of hearings on judicial selection, said court consolidation is a far easier sell in the Legislature than merit appointment. “On court consolidation, the Assembly has had a proposal that is a modification of Chief Judge Kaye’s, with a focus on Family Court,” Ms. Weinstein said. “Merit selection we have some concerns with.” Ms. Weinstein said that minority bar groups that testified at her hearings expressed near uniform concern that minorities would not fare as well under an appointive system as they do under the elective system. “They are very concerned with merit selection, fearing they would be excluded,” Ms. Weinstein said. “And looking at the experience of the past 12 years, certainly I have a concern about the ability to bring diversity to the bench. I am anxious to see the governor’s proposal and interested in how he will address the issue of diversity, which I think is critical.” Mr. Alcott, however, remains a firm advocate for merit selection, and noted that the appointive system resulted in the first woman, first Hispanic and first black to serve a full term on the Court of Appeals. “We could not be more pleased that Governor Spitzer has called for the only solution to get the clubhouse out of the courthouse – a constitutional amendment enacting a merit selection system,” Mr. Alcott said. “With the courts having ruled that our current selection process is unconstitutional, it is clear the governor understands that we have an historic opportunity to bring meaningful, lasting reform to the judicial selection process, and we are prepared to fight with him every step of the way to achieve it.” Senate Majority Leader Joseph L. Bruno, while not commenting specifically on Mr. Spitzer’s proposed judicial reforms, said he found next to nothing in the State of the State address with which he disagrees. “This is a partner we look forward to working with,” Mr. Bruno said. “He is saying all the right things . . . all the right priorities.” Whether the Legislature adopts merit selection or not, the state is under orders of the U.S. Court of Appeals for the Second Circuit to alter the way it selects candidates for Supreme Court. The federal court last year upheld Eastern District Judge John Gleeson’s opinion in Lopez Torres v. Board of Education, 412 F.Supp2d 212, that the state must either drastically alter the convention system or permit open primaries. Even if the Legislature does agree to convert to an appointive judiciary, a change of such constitutional dimension would require passage by successive Legislatures and approval of the public. In other words, it cannot be achieved prior to the November elections. Mr. Spitzer, at a post-address news conference, declined to say specifically how he will deal with Lopez Torres in the next election cycle. “There are some who are saying let the court’s mandate sit where it is and have an open primary,” Mr. Spitzer said. “I think there is a superficial appeal to [open primaries] but the very real concern articulated by those who have spent a great deal of time looking at the judicial selection process is that the impact of money in those elections could be monumental. Whether we have an open primary process or restructure the conventions . . . there must be a way to primary onto the ballot. I will not support anything that has a closed convention structure, where only those who came out of the convention could be on the ballot.” Early last year, before Lopez Torres was decided, the Senate passed Judiciary Committee Chairman John A. DeFrancisco’s bill that would enable those seeking Supreme Court seats to garner a ballot position by collecting signatures on a petition. Mr. DeFrancisco’s bill passed the Senate in February but was not considered by the Assembly. On Monday, Mr. DeFrancisco, a Republican from the Syracuse area, will hold a hearing in Albany to consider various proposals for judicial selection. “It was clear to me even before the courts rendered their decisions in this case that the method used to select Supreme Court justice candidates in New York State was flawed,” Mr. DeFrancisco said. Rejecting status quo The overriding theme of Mr. Spitzer’s address – that the status quo is no longer acceptable in state government – buoyed the hopes of reform advocates who have long sought major structural changes in the way New York functions politically, logistically, bureaucratically and judicially. Throughout his 21-page address, Mr. Spitzer repeatedly stressed that his administration will be catalyst for reform, repeatedly using verbs like “transparency,” “accountability” and “responsibility.” He said that while “our future is bright . . . our government is in disrepair.” “New York is not in its current position because of a lack of ideas,” he told a joint session of the Assembly and Senate. “New York is in this position because of a lack of leadership. But now our time has come.” The new governor called for ethics, campaign finance, lobbying and election reform. He referred to public authorities as “patronage dumping grounds.” He called for budget reform and education reform, pledged to do more to revitalize New York’s distressed upstate cities and promised to “form a partnership with Attorney General Cuomo and upstate law enforcement” to clamp down on gang warfare. “New Yorkers have demanded change. They have challenged us to stop standing still and start confronting the status quo,” Mr. Spitzer told the Legislature. Mr. Cuomo said that with the elections over and the new administration in office, it is time for action. “The voters have spoken, the politicians have heard and now we have to do it, and we have to do it now,” Mr. Cuomo said. John Caher can be reached at [email protected]

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