Two upstate appellate judges and a Long Island justice who sits on the appellate court in Manhattan were defeated on Nov. 6 in their reelection bids for Supreme Court, according to unofficial returns.
Justices Bernard Malone Jr. (See Profile) and E. Michael Kavanagh (See Profile), both Republicans who sit in the Appellate Division, Third Department in Albany, were beaten by Democrats Richard Mott and Stephan Schick.
And Justice James Catterson of Suffolk County (See Profile) came in eighth among 12 candidates vying for six seats in the Tenth Judicial District. Catterson sits on the First Department bench.
The two other appellate judges seeking new Supreme Court terms won on Election Day. Justices Leonard Austin (See Profile) and Peter Skelos (See Profile), both sitting in the Second Department, were reelected on Long Island. Skelos was the only apparent Republican victor on Long Island.
Throughout the state, judicial election voting appeared to be heavily influenced by the presence of Democratic President Barack Obama at the top of the ballot, just as it was the first time Obama ran for president in 2008.
Four years ago, three Republican judges on the Appellate Division also failed to win new Supreme Court terms, costing them their seats on the appeals court bench.
Obama trounced Republican John McCain 63 percent to 36 percent in 2008 in the presidential vote, and defeated Mitt Romney by an almost identical percentage in New York on Election Day.
Supreme Court Justice John LaCava (See Profile), a Republican who was defeated for a second term in the Ninth Judicial District in the mid-Hudson Valley, said Obama’s strong showing spelled doom for his reelection hopes.
When first elected in 1998, LaCava said the counties of Dutchess, Orange and Putnam—all in the Ninth district—were Republican “strongholds” that he captured to win the election. This year, however, LaCava managed to carry only Putnam County in finishing a distant fourth behind Democrats Maria Rosa of Dutchess, a court attorney; Westchester Acting Supreme Court Justice Gerald Loehr (See Profile) and Goshen attorney Sandra Sciortino.
Three Supreme Court openings were filled in the district on Nov. 6. LaCava finished 46,707 votes behind Sciortino, for the third and final seat.
“What are you going to do?” LaCava said yesterday in an interview. “It would have been worse, I suppose, had I lost by 75 votes or 250 votes. But it just seemed like it was a party-line vote, especially for president.”
LaCava said the 2012 election reminded him of the 1996 race for Supreme Court, an election in which he said he was “buried” because of former Democratic president Bill Clinton’s victory.
“I thought it might be different this time,” LaCava said. “I thought the Democrats would not come out in the numbers they did in 2008 to vote for Obama. But it is just like déjà vu. I have no control over it. I can’t feel bad because it wasn’t my fault.”
LaCava said he recognized the irony when he got into his car to come to work yesterday in White Plains and heard Rolling Stones song “You Can’t Always Get What You Want” on the radio.
Malone said he believes the way the ballot was laid out in the Third Judicial District may have cost him and Kavanagh votes.
While Obama was the first candidate’s name on the ballot, he said the second was Democrat Kirsten Gillibrand, an Albany native who trounced Republican Wendy Long to win a six-year term as U.S. Senator.
“Kirsten Gillibrand is immensely popular here,” Malone said. “Then the voter’s eye goes to the next name, which was Richard Mott’s, and he turned out to be the biggest vote-getter for Supreme Court in the Third District. Then the voter’s eye went to Stephan Schick, who was the second biggest vote-getter.”
Malone said voters inclined to cast ballots for him or Kavanagh had to “drop down to the middle of the ballot” to find their names.
“That is the reality of the system we operate under,” Malone said. “I can’t change the system.”
Kavanagh, like Malone, is 69. Kavanagh said he had hoped to win another term and starting in 2014, seek to be recertificated so he could remain on the Supreme Court bench past the court’s retirement age of 70.
“This has been a tough day, I am not going to deny that,” he said yesterday in an interview. “But I really worry about my law clerk and I worry about my secretary. That is the collateral damage here. I’ve been in the [pension] system so long, I will be fine. But I’m worried about them.”
He said being on the Appellate Division, despite times when it could be “immensely frustrating,” has been “very challenging and very invigorating.”
Malone was first elected to the Supreme Court in 1998 and appointed to the First Department by former governor George Pataki in 2005, a year before Kavanagh was appointed to the First Department. Both Malone and Kavanagh were transferred to the Third Department in 2008.
Mott, a private attorney from Kinderhook, Columbia County, captured 165,559 votes compared to 147,864 votes for Schick, a Legal Aid Society attorney from Sullivan County. Kavanagh got 141,152 votes and Malone 124,777 votes. The top two vote-getters were elected.
With the defeats of Malone and Kavanagh Governor Andrew Cuomo now has three openings to fill on the Third Department bench, which normally has 12 judges.
Sources have confirmed that three Supreme Court justices in the Third Department—Michael Lynch (See Profile), Eugene Devine (See Profile) and Thomas Breslin (See Profile)—have been approved by the Third Department screening panel for the opening created by the death of Cardona and elevation of Peters (NYLJ, Oct. 1). Cuomo has yet to make a selection, however, and he is under no deadline.
Peters said that having Malone and Kavanagh leave the court is an “enormous loss,” and their absence will undoubtedly increase the workload of the remaining justices on the Third Department bench.
“It is more than likely that my solution is that instead of sitting with five judges, we will be forced to hear cases with four judges,” Peters said yesterday.
The downside of four-judge panels, she said, is the loss of a fifth judge’s input during oral arguments and deliberations.
While Peters said she hopes Cuomo moves expeditiously to fill the openings, “I cannot imagine picking up the phone to the governor and trying to light a fire” under him to get his attention about the impending shortage of judges in the Third Department.
“While our situation is dire, the governor is confronting some very dire issues himself,” she said.
Six Incumbents Win
Overall, voters filled 30 Supreme Court openings on Nov. 6.
The six incumbents winning were Democrat Cheryl Chambers in Brooklyn (See Profile), Republican Joseph Sise in the Schenectady-area Fourth Judicial District (See Profile), Republican Kevin Dowd in the Sixth Judicial District in the Finger Lakes region (See Profile), Austin and Skelos on Long Island and Democrat Donna Marie Mills in the Bronx.
Supreme Court justices losing in reelection bids were Republican David Michael Barry (See Profile) in the Rochester-area’s Seventh Judicial District, LaCava, Malone and Kavanagh.
Nine of the acting Supreme Court justices who sought elected status won: Saliann Scarpulla (See Profile), Shlomo Hagler (See Profile), George Silver (See Profile) and Manuel Mendez in Manhattan; Barry Kamins (See Profile) and William Miller in Brooklyn; Gerald Loehr in Westchester County; Lawrence Cullen (See Profile) in Queens and Fernando Tapia (See Profile) in the Bronx.
All are Democrats.
Newsday reported that the leading Supreme Court candidates in Long Island’s 10th District, in the order of their vote tallies, were former Suffolk County Judge Richard Ambro; John Leo, legal officer of the Town of Huntington in Nassau County; former Nassau County District Court Judge Sondra Pardes; Austin, of Nassau County; Skelos of Nassau County; and Blank Rome partner Leonard Steinman of Nassau County.
Nassau County Acting Supreme Court Justice Hope Zimmerman trailed Steinman by 984 votes. Catterson, the eighth-highest vote getter, was 10,163 votes behind Zimmerman, with 100 percent of precincts reporting.
Catterson has been a Supreme Court justice since 1999 and First Department justice since 2004.
Skelos was first elected to the Supreme Court in 1998 and elevated to the Second Department bench in 2004.
Skelos raised among the highest amounts of any judicial candidate running in 2012. Campaign data filed with the state Board of Elections showed that his campaign raised $335,806 from the first of the year through Oct. 22, the latest general reporting date for candidates.
Austin, who was also first elected to the Supreme Court in 1998 and appointed to the Second Department in 2009, raised $214,619 through Oct. 22.
In the Seventh Judicial District, where Republican incumbent Barry finished third in a four-way race to decide two seats, Republican Gail Donofrio (See Profile) was the biggest benefactor to her own campaign of any of the 65 Supreme Court candidate.
She and husband Roger Dagama loaned the campaign $80,000 on Oct. 7.
Donofrio, a Monroe County Family Court judge, was unofficially the leading vote-getter in that race with 273,460 votes. J. Scott Odorisi, an East Rochester village justice and lawyer, was second with 215,368 votes, Barry was third with 207,937 votes and Democrat Sean Gleason was fourth with 179,754 votes.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.