Rarely do you see a court decision decimate an election process.
But that’s exactly what last week’s U.S. District Court ruling did to New York’s unique (some would say unconstitutional) 85-year-old system of picking state Supreme Court judges. (See the ruling here… it’s good reading.)
The decision bellows proclamations. It says the power of picking state Supreme Court judge candidates rests in the hands of a few party bosses and silences the rank-and-file party members.
Pages of the decision are devoted to pointing out party control around the state. And there is one page of local interest – it includes testimony by a former Rochester City Court judge who charged that county Republicans under Steve Minarik struck a deal to turn over final say for state Supreme Court GOP candidate to the Monroe County Conservative Party run by Tom Cook. That testimony – and the accusation – has Minarik fuming.
But Minarik is also the state party chairman. And, wearing that hat, he said his State Republican Party will likely appeal this decision. State Democrats will do likewise. And Minarik hints that doing away with the current process may bring with it the unwanted rise of judicial candidates with big money running and winning.
Let’s move back a few steps.
The controversy pivots around a strange electoral contraption for state Supreme Court candidates known as the "judicial convention," which has been in place for all of the state since 1921. State Supreme Court judicial districts encompass many counties. Rochester and Monroe County is part of the Seventh Judicial District, which also includes seven other neighboring counties. The "Judicial Convention" convenes delegates from all of these counties to choose that party’s Supreme Court candidate.
Confused? Don’t be. Simply understand this – delegates have the power to pick party candidates. Delegates are often people close to the county party apparatus. Delegate elections are obscure, and so those named by the party are rarely challenged.
That means, when it comes to state Supreme Court, there are no primary challenges in the traditional sense. Outside challengers must convince the delegates to accept you. The thing is – the party leadership always has a favorite candidate by the time these conventions convene. So an outsider has virtually no shot of changing minds at these conventions. And they can’t run delegates because the process is so cumbersome (imagine trying to run a slate of your own delegates across the eight counties of our own seventh judicial district).
This was the problem – as opponents to the system saw it.
And this was the charge made in a lawsuit filed in federal court by the Brennan Center for Justice. You may remember these folks from the report they issued in 2004 on the dysfunction of the New York State Legislature. The organization was joined by eight potential judicial candidates who, as the New York Law Journal put it, said the election process was unfair and virtually impossible without the backing of key party leaders.
Nearly two years after it was filed, the judge in the case, Eastern District Judge John Gleeson agreed.
Gleeson called for the New York State Legislature to replace the Election Law that uses delegates and conventions to elect State Supreme Court Judicial candidates with something, well, more democratic. In the meantime he ordered a stay of the convention process, and to hold traditional party primaries for the next state Supreme Court elections.
But you really ought to read the decision itself to get a handle on what opponents of this system call a "defacto appointment system" controlled by party leaders. Here’s just one comment by Gleeson on the system – it’s "an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of local party leaders."
The text takes aim at both political parties. There are pages of the decision devoted to the brass-knuckle tactics of Kings County Democratic Leader Clarence Norman. Gleeson praises the First District in New York City for having more involvement by the rank-and-file, but then says that the Democratic leader there, Denny Farrell, controls the process (Farrell is now the state Democratic Chairman).
That brings us to Steve Minarik. On page 45 of the decision comes the tale of former Rochester City Court Judge John Regan. He won a seat on City Court back in 1981 running on BOTH the Republican and Democratic lines. Regan said he’s a conservative. In 1992, he lost that seat, running as a Republican. In 1994, he wanted to run for state Supreme Court but did not get the nomination. In his testimony, Regan said that this was because the County Republican under Minarik allowed the county Conservatives under Tom Cook to choose the GOP’s candidate.
Why, Regan went so far as to say that the Republican nomination for Supreme Court effectively ended at the Conservative Party dinner held in May, when people “(found) out who the candidate (was) going to be.”
In 1994, it wasn’t going to be Regan. He testified that he had gotten on Tom Cook’s wrong side. Regan pressed on but was told by the county leader (Minarik) that he controlled the judicial convention delegates and "that’s all that matters."
By phone, Regan added that he went so far as to try and challenge the Republican Party delegates that year by running his own candidates. He chose himself and his sons because that was the only way voters would know who was backing him for judge. State law prohibits the delegates for declaring on the ballot who they support.
“That it is a primary process is a fraud,” he said.
Regan recalled his testimony in this case. It was an all-day affair, he said. And he recalls being drilled in cross-examination as being nothing more than a malcontent because he had lost.
This was also what Minarik said about Regan’s testimony.
"Regan is certifiable," Minarik said. "He wanted to be a Supreme Court judge and we passed him over. You have to consider the source."
Regan said Minarik is just using a tactic he always uses – "disparage the source."
When I asked Minarik about Regan’s testimony – that he gave the Conservative Party final say – Minarik said he was insulted by the question.
"That I would even consider such a thing is insulting," he said. "I could never do that." He pointed to some candidates who ran for State Supreme Court as a Republican with Conservative backing… Ann Marie Taddeo, Evelyn Frazee.
The real problem, said Minarik, has nothing to do with Regan. Minarik said that this ruling would unwittingly unleash new problems – namely money problems. He said that if the system is changed to a primary process – then only those with deep personal financial reserves could afford to run. Only those people, Minarik said, could effectively campaign in these large judicial districts. It’s the same concern voiced by others in a New York Times article on the ruling.
Regan gave another option – an old option. He reached back to the last Constitutional Convention in New York State, in 1967. Then, there was a proposal to make state Supreme Court judges elected countywide. That, Regan said, would make it more affordable.
That effort to reform electing state Supreme Court judges failed then.
This one appears to have more staying power.
nd now the issue gets plopped on the laps of state lawmakers.
And state and local party chairs have a whole new world to look at when it comes to picking judges for state Supreme Court.