Newsday Investigative Report – Judges - November 19, 2000

 

It's Their Call: 
LI's surrogate judges award legal work to a small, well-connected group

Parties’Full-Court Press: 
How politics pervades the judiciary on Long Island

The Route to Bench
Party Line: Judicial candidates must pay political dues before getting chance

Justice, Politics, Cash and the Bar
For their campaign funds, judges turn to the lawyers they work with every day

Judges And A Jury Of Their Peers
Before lawyers can become judges, they face screening by ... a panel of other lawyers

Camaraderie In, Out of Court: Close ties between bar, bench

Courting A Job? 
It’s Who You Know: Analysis of hiring records shows courthouse jobs go to the politically connected

Select Cast Gets Lucrative Roles: 
To take on receiverships, other court appointments, judges pick who they know

GOP Rivals Fail to Ally: Democrats turn to ex-judge

Verdicts Vary on LI's Judges: Lawyers, data point to range of behavior

Cool and Calm? Not Always . . .Temperament can be good, bad or ugly

Backlog of Cases in Suffolk County: 
Similar counties have embraced better ways to manage them

Selection Vs. Election: 
Appointment backers say elective-system politics can keep good judges off bench



It's Their Call:
LI's surrogate judges award legal work to a small, well-connected group

<Back to Top>

by  Robin Topping and Katie Thomas
Staff Writers

In life, Jean Stralem surrounded herself with opulence. Picasso, Matisse and Van Gogh hung on her walls. A household staff catered to her needs in a 14-room townhouse on Park Avenue. A country estate provided her elegant refuge in Glen Cove. And sunny retreats in California and Florida gave her respite from winter's chill.

 

In death, the banking heiress left an $80-million fortune and the seeds of a family squabble that would turn out to be nearly as extraordinary.

 

As art aficionados geared up in May 1995 for the auction of Stralem's collection, an epic legal battle was gaining steam. It would be a battle that would show as much about the exclusive world of wealth and luxury that spawned it as about the insular legal world of influence and favor where it was fought -- Surrogate Court.

 

After her two granddaughters, one of whom had been disinherited, couldn't agree on whether Stralem's will was valid, some of the area's most prestigious law firms began filing court papers and preparing for the fight. Nassau Surrogate C. Raymond Radigan decided he needed help.

 

So he turned to those he knew. He appointed retired Westchester Surrogate Evans Brewster to oversee the daily case developments. And he hired former County Court Judge Raymond Harrington, a onetime acting surrogate, to represent the interests of children of one of the warring sisters. Harrington hired two assistants: Richard T. Kerins, the former senior court officer in Radigan's courtroom and then-deputy public administrator; Harrington also hired his own daughter, Patricia.

 

Radigan then appointed Mark Lieberman, a former Nassau Off-Track Betting Corp. official and former state lobbyist for Nassau's three towns, to protect the interests of different grandchildren in the case. And Lieberman selected Michael Feigenbaum, a former counsel to the Queens public administrator, to help him.

 

By the time the case was finished five years later, Radigan had approved almost $1.4 million in fees from the estate for these attorneys, all of whom have connections to each other, the court system or the political establishment.

 

While the Stralem estate is bigger and more complex than the bulk of disputes coming through Long Island's Surrogate Courts, the case reveals how these assignments are frequently made -- it's connections that count.

 

New York state's surrogate system long had been known for patronage abuses and was overhauled in the mid-1980s in the wake of a major scandal involving former U.S. Rep. Geraldine Ferraro's husband. But despite new rules that have limited the impact of favoritism, a Newsday study has found that politics continues to infiltrate the process.

 

More than 3,100 lawyers are eligible for these assignments in Nassau and Suffolk, but, in the last five years, only a small circle got most of them, work that paid $5.6 million.

 

That cadre of attorneys has been overwhelmingly Republican -- a given in the world of Long Island politics where the GOP has historically dominated the judiciary. They have been appointed by judges who are also products of the party and they are paid fees that range from $100 to $300 an hour, amounts ultimately up to the judges' discretion.

 

None of that surprises Suffolk Republican chairman Anthony Apollaro.

 

"You have to remember that this is the way the system has been set up for years,” he said, "that this is coin of the realm, all tempered with the fact that you have to be qualified.”

 

In Suffolk County, two of the top money earners in the past five years were Babylon attorney Vincent Berger Jr., who ran Suffolk Surrogate A. Gail Prudenti's 1995 campaign and earned $52,500 in fees, and Southampton GOP leader John Czygier, who made $92,913. Czygier is considered the leading contender to succeed Prudenti, who was elected to State Supreme Court this fall, as surrogate.

 

In Nassau, Garden City lawyer M. Allan Hyman, whose firm is a top GOP contributor and serves as Nassau Republican Chairman Joseph Mondello's professional base, earned $59,304. Joseph Carlino, a former speaker of the State Assembly and ex-Nassau GOP leader now practicing in Mineola, made $38,750.

 

\The appointees include elected officials, party leaders, bar association officials, retired judges, former law clerks, members of politically active law firms and relatives of politicians. A look at the assignments made in Long Island's Surrogate Court over the past five years shows just how tight a group it is:

 

While 529 lawyers received appointments, a much smaller group earned most of the money. For example, the top 40 attorneys earned 79 percent of the money in Nassau and 55 percent of the total in Suffolk.

 

At least 60 percent of the total fees in both counties went to lawyers with political or legal connections.

 

Despite rules created in the wake of past scandals, judges have few guidelines for approving fees or filling positions. And though lawyers and judges are required to report appointments and fees, there is no central tracking system to catch violations. In fact, Newsday found five instances in which lawyers appeared to have violated a rule limiting the number of large fees in one year.

 

Some appointees are moonlighting public officials. The list includes such full-time officials as Kerins, now the Nassau public administrator, and Islip Town Attorney Vincent Messina, as well as powerful state Sens. James Lack (R-East Northport), who made $56,587 for 21 appointments in Suffolk, and Brookhaven Town Board Member Kenneth LaValle (R-Port Jefferson), who made $9,513 for 16 appointments.

 

Lawyers hired to assist appointees are not required to report their share of a fee to the state. In a handful of instances in which these attorneys earned thousands of dollars, the state had no record of their appointments. For example, while there is a record of the $683,000 Harrington earned in the Stralem case, there is no record that Kerins shared in more than $200,000 of that fee.

 

The vast majority of appointments are known as guardians ad litem. State law requires surrogates to appoint lawyers to act as watchdogs over the interests of minors or incapacitated adults in estate cases. But while these assignments can sometimes be complex and challenging, they usually involve reviewing paperwork and dealing with fairly simple legal issues. They also don't often require contact with the person whose interests the lawyer represents.

 

The more routine assignments are perfect plums for a lawyer just starting out, a retired attorney phasing out his practice, or someone who practices law only part-time. For some, appointments can provide a dependable, moderate source of income. For others, taking them can build a relationship with the judge and land them more lucrative assignments in the future.

 

"Most of it is simply being a very good caretaker of money,” said Geoffrey Hazard, professor of law at the University of Pennsylvania. "It takes a high degree of honesty, but it's not rocket science.”

 

Both Radigan, who retired this year, and Prudenti came out of the world of politics, but both say they appointed guardians strictly on merit. Radigan said he couldn't ignore that many qualified lawyers are also political. "A lot of people who are politically connected are also involved in trusts and estate work,” he said. "You can't just block them out.”

 

Both judges also said they preferred to rely on a small group of trusted lawyers for particularly difficult or sensitive assignments.

 

"We're the ones who get burned if something goes wrong... We're not going to put a stranger in there,” Radigan said.

 

But experts say judges should be careful about repeatedly calling on attorneys they know through political and legal circles.

 

"The individual might well be qualified for the appointment, but the fact remains the judge might also be making the appointment as a means of favoritism,” said Jeffrey M. Shaman, professor of law at DePaul University in Chicago and an expert in judicial ethics. "And when there is a pattern, it creates an appearance that is questionable.”

 

In his successful bid to replace Radigan and become Nassau's first-ever Democratic surrogate, District Court Judge John Riordan campaigned, in part, on making the appointment process more open. Riordan, who was elected in this month's election, said, "I think there are some Democratic attorneys who practice in that area who I understand feel excluded. To the extent they are excluded based on party affiliation, I would rectify that.” 

The state's chief administrative judge, Jonathan Lippman, acknowledged that the system should require more accountability on the part of both lawyers and judges to limit favoritism.

 

"You can have all the reforms in the world ... but it is meaningless if people don't have the confidence that you run a system that is impartial,” Lippman said.

 

Earlier this year, Lippman and Chief Judge Judith Kaye appointed a commission to re-examine the rules regarding limiting fees, setting qualifications, improving monitoring and eliminating favoritism. The commission was created after the disclosure of a letter from two Democratic Brooklyn lawyers complaining to their party leaders that they had been cut out of legal assignments because of politics.

 

Kaye and Lippman also named an inspector general to look into possible rule violations. If judges are found to be breaking the rules, they face possible censure or removal by the state's Judicial Conduct Commission and lawyers could be disciplined by the court.

 

But even so, Lippman acknowledges there is a "political overlay” to appointments that will never be entirely eliminated. "Do I think it's a terrible thing that people involved in public life receive this? No, I don't,” Lippman said. "What we're concerned about is that no one abuses the system.”

 

The appointment process has become one way to reward party faithfuls and keep the political apparatus running, experts say. While all the appointees interviewed said they were qualified for the assignments, guardians ad litem are picked at the judge's discretion and don't need special qualifications, other than being attorneys and not being related to a sitting judge.

 

"It's like the appointees have two jobs, doing the job for the court and doing the job in terms of producing background political support, which is why they got the appointment,” said Hazard, also the principal consultant for the American Bar Association's Code of Judicial Conduct. "You say, well, it's just a few percentage points in their little tollbooth, but, of course, it has an effect on engendering cynicism in the public.”

 

Clearly, Republican attorneys, including active party officials and workers, have reaped the benefits of the appointive system. Of the lawyers making more than $5,000 over the last five years, the analysis showed that 65 percent of appointees in Nassau and Suffolk were registered Republicans, while only 16 percent were Democrats. The percentage of registered Republicans in Long Island's voting population is 40 percent in Suffolk and 44 percent in Nassau.

 

"If you ... do not have some kind of political or cultural tie with the Nassau GOP... the probabilities of your being invited to do or perform legitimate legal work by the court are fairly low,” said Gerard Terry, counsel to the Nassau Democratic Party.

 

One respected trusts and estates specialist in Nassau, who is not politically involved, said he doesn't receive appointments despite his credentials. "There clearly are a substantial number of attorneys who are qualified to do work in the Surrogate Court, to do complex and contested litigation in Surrogate Court, who nonetheless do not get appointments,” said the lawyer, who asked not to be named.

 

Both counties' surrogates are not permitted to engage in politics -- except when they are running for re-election -- but they know the political landscape.

 

In Suffolk, Prudenti was elected surrogate in 1995 after just four years as a State Supreme Court justice -- a rise due in no small part to her history with the Suffolk Republican Party. She grew up as the daughter of the former GOP leader and was politically active before taking the bench. She was also appointed administrative judge and now with her election back to the Supreme Court, she becomes eligible for an appointment to the Appellate Division.

 

Radigan was elected surrogate after serving as a political leader in Farmingdale and the longtime clerk to John Bennett, the former surrogate and former Republican state lawmaker who was a political force in his own right.

 

Both Radigan and Prudenti say their familiarity with politics doesn't taint the appointment process.

 

"Do I know who the political people are? I was in politics,” said Radigan, "but I'm very sensitive to whether or not they are going to be qualified or not.” Prudenti agreed: "If you look at the big picture, you will see lawyers coming here from all walks of life. I appoint them because they are good lawyers.”

 

Some high-profile Republicans appointed in Suffolk in the last five years include former State Senate Majority Leader Ralph Marino, with two appointments worth $9,700, and former presiding officer of the Suffolk legislature Gregory Blass, with $26,925 for 24 appointments.

 

In Nassau, Radigan took the bench 20 years ago with the help of then-county Republican leader Joseph Margiotta and many of the attorneys receiving assignments date to that time. In the last five years, these included Michael Ricigliano, Margiotta's law partner, with $26,500 for two Nassau appointments, and Philip Bisceglia, former counsel to numerous prominent state legislators, with $16,750 for three.

 

"It's a reflection of the fact that he got his position in another era,” said Mondello, now the party chairman.

 

A handful of the top-earning guardians ad litem are attorneys whose law practices take a backseat to their primary occupation -- serving the public either as an elected official or a full-time government employee. 

In Nassau and Suffolk combined, assignments in the last five years have gone to two Nassau County legislators, two state senators, the Islip town attorney and six councilmen from various towns. 

Two officials held full-time jobs at the time they took appointments. Messina, the Islip town attorney, has earned $31,976 for 24 appointments from Prudenti and Weber over the past five years. He is the son of Jeannette Messina, Islip's deputy town supervisor and a town Republican leader. He said most of his cases are conducted through correspondence. When they do require time in court, he takes vacation days, he said. "It does not ever interfere with anything.” 

Some cases do require intense work and long hours. Kerins, who earned $214,474 as an assistant on the Stralem estate, took the job while working full-time as deputy public administrator and said he took vacation time for scheduled court appearances or other work on the case. The public administrator's office manages estates in which no one is willing or able to serve as executor, or manager of the estate's finances. Often these cases come through Surrogate Court. 

When asked if the time-consuming Stralem appointment gave an improper appearance, Kerins, who Radigan promoted to public administrator recently, said, "I don't see that at all. I see me being part of that American dream where if you work hard and you're diligent, and you apply your talent, I'm entitled to it.” 

But Kerin's appointment troubled Barbara Reed, associate executive director of the Fund for Modern Courts, a Manhattan court reform group. 

"I would certainly hope that most public officials would refrain from entering into such a public arrangement,” she said. With the exception of Kerins and Messina, all of the officials who received appointments are considered part-time workers. 


Several officials who got appointments acknowledge that their familiarity with the judge helped them gain entry into the circle. "I think it makes a difference,” said Edward Hennessey, one of three Brookhaven Town councilmen who have received appointments from Prudenti, a former lawyer for the Brookhaven GOP, and former Surrogate Ernest Signorelli. Hennessey, who said he had to do good work to earn Prudenti's trust, made $8,650 for 12 appointments over the last five years. 

Both Lack and LaValle, the state senators to whom Prudenti assigned appointments, maintain part-time law practices that focus on trusts and estates. Both said they were qualified. "It's not because of my influence as a member of the Senate, or else I would have gotten far more referrals than I did,” LaValle said. 


Both Radigan and Prudenti also tapped those with connections in the legal field. Among them are retired law clerks and former judges, such as former Appellate Division Justice Joseph Kunzeman and former Queens Surrogate Louis Laurino. "They have rewarded my trust, and they have done excellent work,” said Prudenti, who gave Kunzeman 15 assignments worth $73,090 and Laurino $33,450 for six appointments over five years. 

Whether active in political or legal circles, these well-connected attorneys are more likely to get the higher-paying assignments, the Newsday analysis shows. In both counties, three-quarters of the total given to lawyers making more than $15,000 over five years went to these lawyers. 

And they made on average more money than their less well-connected colleagues. Of the lawyers making more than $15,000 in that time period, those with no clear political or legal connections earned an average of $26,964 in Suffolk and $23,855 in Nassau. But lawyers with a political or legal connection earned an average of $39,354 in Suffolk and $65,696 in Nassau, including the high fees in the Stralem case. 

Compared with her predecessor, Signorelli, Prudenti has opened up the appointment process, encouraging more young lawyers to get involved. But the approximately 275 attorneys she appointed in the last five years is a fraction of the approximately 2,100 on the state's list of those eligible in Suffolk. 

County Court Judge Gary Weber took over as acting surrogate from Prudenti when she became administrative judge last year, but she still makes some appointments. As administrative judge, she manages the Suffolk court system. 


Until the mid-1980s, judges had free rein to make court appointments, with no limits on whom they could appoint, how much they could pay, or how often they could hire the same people. 

That changed in 1985, after a scandal a year earlier in which John Zaccaro, husband of then-vice presidential candidate Geraldine Ferraro, borrowed money from a Queens estate he was hired to protect. Zaccaro was not a lawyer, and was removed from the case. 

In the wake of the controversy, the state courts' Administrative Board approved new rules that were designed to limit the extent to which favoritism could influence the appointment process. 

Those rules require that an appointee must be a lawyer, must be on a state-generated list and cannot be related to a sitting judge. But there are no minimum standards for training, other than those imposed by the local judge. 

The state also mandates that judges and lawyers report the assignments and fees. Lawyers are also barred from taking more than one appointment in a 12-month-period that yields more than $5,000. 

But 15 years after the changes were imposed, lawyers, judicial experts and the judges themselves agree that the rules are weak and difficult to enforce. 

For example, the state has no central tracking system of fees earned by lawyers. An analysis of Office of Court Administration data for Nassau and Suffolk cases over the last five years shows five lawyers who apparently exceeded the $5,000 fee limit, but the state never took note of the violations. 

State records show that among them is former Suffolk Family Court judge and former Acting Suffolk Surrogate Joseph Snellenburg, who received two appointments from Prudenti in 1996 that exceeded $5,000 -- one for $20,000, and one for $50,000. However, Prudenti's Chief Clerk Michael Cipollino said he had no record of the $20,000 appointment and the public court file is sealed for unrelated reasons. Snellenburg declined to comment. 

In 1995, Smithtown attorney and former state and Suffolk Bar Association President Joshua Pruzansky received two appointments that later yielded fees of $30,000 and a $20,000. In 1998, he received two appointments that later yielded a $15,000 fee and a $6,000 fee. 

Pruzansky said he couldn't anticipate the exact fees on these cases, and the lag between appointments and payments often made it difficult to follow the rule. 


Cipollino, who agreed the rule is difficult to comply with, nevertheless said it's up to the lawyers to give the judge reliable information. 

Lippman concedes there could be "inadvertent violations” of the rule. But he added: "To me the rules are clear ... the lawyers are not just lay people, they are officers of the court.” While guardians ad litem are governed by this state reporting system, there are no such rules for the assistants they sometimes hire.

For example, there is no record of the appointment of Republican Chairman Mondello in 1996 to help another lawyer represent three grandchildren who inherited money in the will of a wealthy Glen Cove woman. 

Mondello said he put in many hours on the court case and shared a fee of $13,616 with the other attorney, Philip Bisceglia. "I consulted with him, met and decided how to handle things. He did his part, and I did mine,” said Mondello. 


Radigan, who made the appointments, said in court papers that both lawyers were needed because of "their knowledge and in order to expedite the services that have to be performed by a guardian ad litem.” 

Mondello said he can't recall exactly how much of the $13,616 fee he got, but he said he completed all the reporting requirements. "I have no knowledge it would not be reported ... If that wasn't done, it's not my fault,” he said. 

Mondello's case is just one of several that Newsday found in which the state had no record of the appointment of an assistant to a guardian ad litem. 

While Prudenti won't allow the use of assistants, Radigan generally does, sometimes appointing them himself. He said it's necessary in complicated litigation. 

In the Stralem case, about one-third of the total fee earned by Harrington went to the two assistants: his daughter, who earned $44,300, and Kerins, who made $214,474. 

Though the state had a record of the total money earned, they had no record of Kerins or Patricia Harrington working on the case. Harrington said he attached a rider to his own fee report listing the amount both assistants made. 

The other guardian ad litem appointed to the Stralem case, Lieberman, shared a more than $500,000 fee with his assistant, Feigenbaum, though the state had no record of Feigenbaum's involvement. The appointees say they all were qualified. Harrington said he hired Kerins because "he was a very knowledgeable guy in estates and trusts, and so he seemed like a good guy for me to have around.” He said he chose his daughter because "she's a hell of a good lawyer.” 

And despite the hefty fees earned during the case, lawyers for both Stralem granddaughters say they were satisfied with the work done by the guardians ad litem and their assistants. 

Experts say there are ways to avoid risking the appearance of favoritism and to ensure quality representation. One possible alternative to the current appointment system would be a list of trust and estate specialists, qualified by an outside panel, that would be available to judges on a random or rotating basis. 

Lippman said the way the state's law guardians are selected is one possible model that would raise the standards for guardian ad litem appointments. Law guardians are appointed to represent the interests of children in Family Court and custody cases in Supreme Court. While guardians ad litem are picked from a state list at the judge's discretion, attorneys interested in working as law guardians must be qualified by a panel run by the state court system and prove they have adequate experience. If they are selected, they must attend courses and observe an experienced law guardian on several cases. 

"It's highly regulated, it's very organized, and you have to be recertified every year,” said Robert Mangi, a law guardian and former chairman of the Family Law Committee for the Nassau Bar Association. 

Without such a system for Surrogate Court appointments, judges are left to cultivate their own list of attorneys, inevitably relying on some of the same people, whether it is because of politics or personal relationships, experts say. "If you construct a framework for these appointments, it helps the judges to make better appointments,” Lippman said. 

Under the existing system, "you look at the list, how do you know who's good?” he asked. "It doesn't work like that. So what do you fall back on? I know Jane Schmoe, she's very good.”

<Back to Top>

  

Parties’Full-Court Press 
How politics pervades the judiciary on Long Island

<Back to Top>

 

By Jack Sirica
Staff Writer

 

A. GAIL PRUDENTI

ANDREW DIPAOLA

JOHN GALASSO

JAMES M. CATTERSON

HOWARD BERLER


A
T 38, Gail Prudenti was a bit on the young side to win a seat on the State Supreme Court when she ran in 1991. Besides that, no Suffolk County woman had ever been elected to the state's top trial court. And to top it all off, she had never been a judge.  

Yet, no one who knew anything about Long Island politics would have bet against her. 

Prudenti was the daughter of the late Suffolk County Republican Chairman Anthony Prudenti, whose political coups had included delivering for Ronald Reagan in 1980 the largest electoral plurality of any county in the nation. 

But probably as important, Gail Prudenti also was close to then-Brookhaven Republican chairman John Powell. She was the godmother of Powell's son. Powell, a one-time town highway department heavy equipment operator, never had forgotten how Prudenti's father had helped him beat veteran State Assemb. I. William Bianchi. 

"Her nomination was pretty well pre-determined," recalled John Cochrane, who was Suffolk Republican chairman at the time. 

"I don't think it was ever discussed," Prudenti said. "It was almost like, ‘The next judgeship that came up, Gail, ... would be yours."' 

Every November on Long Island, a judicial electoral process unfolds which is as political as any backroom deal to fill a seat in the State Assembly or a top post at Off-Track Betting. 

If there is a bedrock concept in the judicial tradition of the United States, it is that the courts should take pains to stay at arm's length from other branches of government and the political system. 

But far from renouncing their political ties once they take the bench, Long Island judges hire politically connected applicants for key courthouse positions, give lucrative receiverships to former campaign managers and politically active lawyers, and continue to pay homage to their party leaders at public events. 

On Thursday night, delegates will gather in their parties' judicial nominating conventions to choose who will run this fall for the 9 vacancies on State Supreme Court, just as they gathered in May to pick the candidates for the 2 seats open on County Court. And those who will ultimately win will have been preordained by local political leaders long before any votes are cast. 

"The process is controlled by politicians," said John Bracken, an Islandia attorney and former president of both the New York State Bar and the Suffolk County Bar Associations. "The net result is we're getting candidates who are not the best qualified for the job." 

Victor Regan, law secretary to Nassau County Court Judge Daniel Cotter, put it more bluntly. 

"If politicians selected their surgeons ... the way they do some of their judges," the former Republican county committeeman said, "there would be a lot of dead politicians." 

Over the past nine months, Newsday has examined closely the partisan process that has spawned the 89 elected Supreme and County Court judges who preside over Long Island's most serious civil and criminal cases. Through more than 200 interviews with lawyers, politicians, court employees and the judges themselves, as well as in a detailed computer analysis of state court and campaign records, a picture has emerged of a system that is scrupulously inbred: 

·  Supreme Court and County Court judges on Long Island are selected through an overtly political process in which party service and loyalty are paramount, and judicial qualifications and merit not infrequently are afterthoughts. The backgrounds are well-prescribed -- loyal party workers, members of politically connected families or politicians who rate either a reward or a graceful exit after a political setback. 

·  Judges are elected after waging nominal campaigns which, by design, provide voters with only cursory information about the candidates' backgrounds and no facts at all about judicial philosophies and positions on issues. In this vacuum, voters overwhelmingly pull levers based solely on party loyalty, almost guaranteeing election to candidates with the Republican and Conservative Party endorsements. 

 ·  Judicial candidates raise thousands of dollars in campaign contributions, much of it from lawyers who appear before them. Despite an outright ban on political activity, the judges effectively return a sizeable percentage of the proceeds to the parties by purchasing tickets to political fund raisers. 

·  Fund-raising is only the most obvious arena of potential conflict between lawyers, judges and political leaders. Attorneys who appear in local courtrooms also sit on bar association panels that pass judgment on judicial candidates, honor judges at events, serve on their campaign committees and celebrate at often-lavish victory parties -- all the while in some cases as they aspire to judgeships themselves. 
 

·  The politicization of the judiciary extends far beyond the judges themselves, with party affiliation key to obtaining high-paid and influential court staff positions. In addition to honoring requests to find jobs for political friends, judges also reward those who helped them get elected by appointing them to run businesses in foreclosure and to evaluate complex disputes between litigants. Such attorneys sometimes earn thousands of dollars in a case. 
 

Many of those who have set up and run the system see little wrong with it. And they say that the process, though political, produces a crop of good judges.

 

"It takes a lot to be a judge," said Nassau Republican Party leader Joseph Mondello. "It's not just being a legal scholar or first in your class at Harvard. It has to do with dealing with people. The legal qualifications are not the only thing that should be considered in the making of a judge."

 

But an increasing number of attorneys and legal experts argue that political ties have come to dwarf legal qualifications in the judicial selection process, sapping the quality of the bench on Long Island at a time of enormous pressure on the state court system.

 

Statewide, some 3.4 million new civil and criminal cases are filed each year. After New York City, Nassau and Suffolk Counties have the heaviest caseloads in the state. In Suffolk Supreme Court, for instance, new civil filings have jumped 21 percent since 1990.

 

The position of trial judge remains one of the most powerful in government. County Court judges, who run every 10 years, can sentence defendants to lengthy prison terms, and Supreme Court justices, who run every 14 years in a district covering Long Island, make decisions that often involve millions of dollars.

 

"Essentially, you have a judge who can decide virtually any aspect of your life, and you probably do better research on who your car mechanic is," said Susan Kluewer, a Garden City Democrat who has run unsuccessfully for Supreme Court in Nassau.

 

On Long Island, the face of the bench is almost exclusively white, male and Republican. Among the 89 elected County and Supreme Court justices, there are seven women and two blacks. There are nine Democrats and six Conservatives.

 

In a series of stories over the next five days, Newsday will detail the political connections, professional backgrounds, money-raising practices and hiring patterns of the Long Island judiciary. But perhaps more than anything else, the individual stories of the judges themselves illustrate the thoroughly partisan character of the road to the bench on Long Island:


 
 

A. GAIL PRUDENTI

<Back to Judge List>


For any other politician, it would have been a dark moment.

 

Back in 1989, Gail Prudenti badly wanted to become a Suffolk County District Court judge, and earned the bar association's top rating. But, then-Brookhaven Town Republican leader Walter Hazlitt had more pressing concerns. He'd made a deal to support another candidate -- who was rated unqualified -- to win Conservative Party backing for the other town GOP candidates. Prudenti would have to wait.

 

"Sometimes it is your turn, and sometimes it isn't," Prudenti said later.

 

With that, Prudenti, though a novice judicial candidate, showed a firm grasp of the political code: Once in a while, a candidate has to step back in order to get ahead later.

 

Prudenti's story is a textbook example of how potential contenders reach their goals. They work diligently for the party, cultivate political allies, stand in line until their turns arrive to receive a judicial nomination and, at that point, raise as much money as possible from the legal community.

 

Certainly, Prudenti's ascent to the Supreme Court also was helped by her late father's allies and her longtime friendship with former Suffolk Republican leader John Powell, who served in the post from 1995 until he was indicted on federal conspiracy charges last year.

 

"I would not be a Supreme Court justice if not for John Powell," Prudenti said in 1991 when she was sworn in. "My dad said, ‘Gail, I want you and John to be good to each other.' I know he's up there smiling his big smile."

 

Prudenti's ties to Powell are both personal and professional.

 

Prudenti is godmother to Powell's son John W. Powell Jr. Prudenti has also hired Powell's mother, Theresa, for various court positions. Over the years, Theresa Powell has risen from being a secretary earning $29,000 a year to her current job, in which she earns $71,000 a year for her work supervising estates without wills.

 

Theresa Powell got that job after Prudenti was elected surrogate judge in 1995 with Powell's backing. A surrogate judge oversees wills and estates, and has the power to make paid appointments to lawyers.

 

Prudenti, who is married to Suffolk County Attorney Robert Cimino, also had served as Powell's personal attorney before she first went on to the bench.

 

One of her tasks was incorporating a liquor store in Coram for Powell. Later, though, federal and local investigators briefly scrutinized an unsecured $15,000 loan she made to Powell, which Prudenti said was for the ailing store. She made the loan in May, 1991, the same month Powell submitted her name to be screened for a Supreme Court nomination.

 

Prudenti said the timing was coincidental.

 

"Honestly ... maybe I should have thought about it, but I didn't," Prudenti said. "These are my personal friends."

 

Prudenti added that Powell, "paid back the loan in full years ago," with interest.

 

Prudenti's campaign committees also have shown a knack for tapping the judge's many contacts for donations.

 

Over the years, the largest contributors to Prudenti's campaign committees have been the members of the high-powered law firm of Lysaght, Lysaght and Kramer. When Prudenti was in private legal practice, she did estate work that the firm referred to her.

 

The members of the Lake Success firm, which closed after two of its partners were convicted of looting a police union pension fund, gave Prudenti a total of $25,000 for her Supreme Court race, nearly a third of her funds. Prudenti's total of more than $72,000 that year represented the second highest amount raised by any State Supreme or County Court justice on Long Island over the past 14 years, according to state records.

 

However she got her judgeship, many attorneys say that Prudenti is a smart, charismatic leader who has proven to be a good manager since being named Suffolk's administrative judge earlier this year.

 

"All I can say is the courts of Suffolk work better than any courts of any of the counties in the metro area," said James Reynolds, president of the Suffolk County Bar Association. "She has a good mind for the law and is able to get down to the key issues in the case very quickly."

 

Prudenti is certainly proud of her accomplishments in the court system, but almost a decade into her tenure as a judge, she retains enthusiasm for the political life. Indeed, she feels strongly that the two can go hand-in-hand.

 

Now 46, Prudenti enjoys telling young lawyers who want to be judges, "Don't be afraid to get involved in politics.

 

"If you look at everyone who is a successful judge, from Sandra Day O'Connor on ... they have all been involved in the political process," said Prudenti. "It is one of the keys to success."

 


DIPAOLA
<Back to Judge List>


The statuette of the elephant with the broken rear end sits on a side table in the Mineola chambers of Supreme Court Justice Andrew DiPaola.

 

DiPaola, 75, recalls that, at first, he wasn't terribly happy when he accidentally dropped the statue. But then he realized that the elephant could serve as a useful symbol. It reminds DiPaola of how, in his last election in 1986, he "kicked the ass of the Republican Party."

 

One-party domination has, in his view, harmed the quality of the bench.

 

"You have to have different points of view," said DiPaola, one of only three Democrats in Nassau on the Supreme Court. "Some people have been raised in a cloistered atmosphere. This is America, where we have a mix of different backgrounds, different aspirations. You have to recognize that in the judicial system, too, and have that reflected in the bench. It's fairer that way. It's not always one-sided."

 

DiPaola had it comparatively easy when he first ran for Supreme Court in 1972. Then, he benefited from a "cross-endorsement" policy in which the major parties agreed to support each other's candidates. That allowed a small though steady stream of Democrats to get onto the bench.

 

DiPaola, a former mayor of Glen Cove, was no stranger to politics, having almost beaten Republican Ralph Caso for the Nassau county executive's job in 1970. In fact, Republicans supported DiPaola for the judgeship in large part to remove one of the Democrats' most formidable contenders.

 

But by the time DiPaola's 14-year term was ending in 1986, Mondello, the Nassau Republican leader, had quit endorsing Democrats.

 

The $56,000 that DiPaola raised for his Supreme Court re-election campaign still stands as one of the largest sums any Long Island justice has amassed. DiPaola also armed himself with the endorsements of all the minor parties, including the Conservatives.

 

At the time, DiPaola was blunt in his assessment of Mondello. He called him a "political pig" for trying to win all the judgeships for the Republicans.

 

DiPaola still sticks by the sentiment. But just as his charm and political instincts helped him survive in office, they have also eased his way in the clubby environment of the courthouse, where he cultivated personal relationships with key figures in both parties.

 

In 1994, the judge appointed Stanley Harwood, a former Nassau Democratic leader and retired judge, as a court receiver, an often sought-after position to run a business or property whose ownership is in dispute. Harwood made $41,200 from one case, records show.

 

"It can be a way of saying, ‘Thanks for all the time you've spent in public service,"' Harwood said, arguing that, in general, no one is harmed by politically influenced appointments of competent lawyers. "There are certain things parties have to do to make it attractive for people to remain active in politics, and what they do is hold out the prospect that some good work will come your way."

 

DiPaola said, "Party politics made no difference to me ... He was qualified to do the job.”

 

When it has come to hiring key courthouse staff, DiPaola has willingly given jobs to candidates sent his way by Republican friends and colleagues.

 

Once, then-U.S. Sen. Alfonse D'Amato, whom DiPaola had known when they served together on the Nassau County Board of Supervisors, called to ask if DiPaola could "do something" for a prospective law clerk from D'Amato's hometown of Island Park. The applicant needed a job because the judge for whom he had been working, former County Court Judge B. Marc Mogil, a Conservative, had been removed from the bench for harassing an attorney.

 

"I guess it was out that my line was open," DiPaola said of the hiring slots that the judges control. 

DiPaola hired the D'Amato candidate as his law clerk. Eventually, the clerk was hired in the Supreme Court law department. At that point, the judge's hiring "line" came open again. 

This time, it was another staunch Republican, Nassau Administrative Judge Edward McCabe, who had a name for DiPaola. The candidate was vice president of the Rockville Centre Republican Club. 

DiPaola hired the clerk, Anthony Paradiso, and sent him to work in the law department. Paradiso later joined the staff of Republican Supreme Court Justice Peter Skelos, for whom Paradiso had campaigned. 

DiPaola said it isn't surprising that he would help members of the party he loves to whip at the polls, because he looks for quality, not political affiliation. 

Now, with DiPaola nearing retirement, his own secretary, Nelzi Kucich, will be looking for work in the courthouse. Until recently, Kucich had what in Nassau County amounts to a crippling handicap: She was a registered Democrat. 

Kucich is helping herself as much as possible, however. She recently switched her party affiliation to Republican. 

"Someone may have said, ‘You're in Nassau County now. How do you think we got here?"' DiPaola said. 


JOHN GALASSO
<Back to Judge List>

He started in Republican politics in the second grade in the 1950s, passing out "I Like Ike" buttons for Dwight Eisenhower's presidential campaign. And as he grew up, Nassau Acting Supreme Court Justice John Galasso became intent on engineering a political career for himself. 

"I always enjoyed meeting the people," Galasso said. "I thought it was a great time, and I get very emotionally attached to this." 

The way Galasso tells his story, in fact, the notion that he would ever become a judge and not a politician was, at the least, farfetched. 

Galasso recalled that a neighbor first advised him to get a law degree: It could serve as a ticket into politics. 

"I had no desire to be a lawyer," Galasso said. "I wanted to be a horticultural landscaper." 

Galasso later served as part of the advance team for the congressional campaign of Angelo Roncallo, who later became a Supreme Court justice. Then Galasso hired on as an assistant district attorney in Nassau County. 

"But I still wanted to run for public office," Galasso recalled. "I put my name in for everything." 

Before long, Galasso got free of the prohibitions against political activity that came with the prosecutor's job by going into private legal practice. 

"I felt like I was being left back in school," Galasso said in explaining why he returned to politics. "There were all these young people coming up ... It was time." 

In 1986, Galasso's uncle, a former Oyster Bay political leader, asked Galasso to make what is known among Republicans in Nassau as a "suicide" run -- in this case, a race against Lewis Yevoli, a popular Bethpage Democrat then in the Assembly. 

Galasso lost to Yevoli by about 8,000 votes, a respectable showing. And before long, Oyster Bay Supervisor Angelo Delligatti suggested to Galasso that he put in his resume for an appointment to fill a District Court vacancy. 

"I had never thought along those lines before," Galasso recalled. 

But, "I thought it over," Galasso said. "I talked to a lot of people, and I said to myself, ‘How do I turn this down?' This was 1991. Now I'm getting into my 40s. I didn't want my life to pass by me, and I also thought it would have been an insult to turn it down." 

Galasso was appointed in 1991 to the vacancy in District Court, which tries minor civil cases and misdemeanors. But he soon became anxious to move up in the court system. So in 1997 he ran for County Court. Again, he employed his standard practice of floating his resume among Republican Party officials. 

"I was putting in for everything, County, Supreme," said Galasso, who sat on County Court until earlier this year, when he was named as an acting Supreme Court justice. 

"District court was a nice starting ground, but ... [a judge has] no staff and you have to do a lot of the decisions yourself," Galasso said. "Now, I have my own law secretary and secretary." 


JAMES M. CATTERSON
<Back to Judge List>

The stars were misaligned. 

James M. Catterson wanted to run in 1998 for State Supreme Court. But he had a problem: He was from Brookhaven Town when, under the county Republican Party's traditional system of parceling out judgeships, it was Babylon's turn. 

But Catterson had a big gun in his corner -- his father, James M. Catterson Jr., the Suffolk County district attorney. The elder Catterson met with John Powell in a diner to plead his son's case, according to a source familiar with the discussion. The younger Catterson eventually got the nod from the Republicans to run. 

It was not unlike former Brookhaven Republican leader Hazlitt's successful lobbying with Powell in 1995 for a judgeship for his daughter, Elizabeth Emerson, even though the slot was supposed to go to an East End resident. 

The younger Catterson may have benefited from the precedent. 

"I think his dad recognized this was an opportunity to do something in the same category as was done for Elizabeth," the source said of the district attorney's appeal. "It was a father in the position of a supplicant asking help ... not a hammer or a threat." 

The younger Catterson had no prior judicial experience. He had worked for the previous 13 years in the Suffolk county attorney's office and in the U.S. attorney's office in Brooklyn. 

In that, though, Catterson was no different from several other young lawyers who went on the Supreme Court bench that year -- a fact that prompted private grousing among some lawyers. 

Lawyers also expressed concerns about Catterson's temperament when he went before the Suffolk County Bar Association panel that screens candidates for judgeships, according to bar sources. 

The committee set the stage for an acrimonious meeting by keeping Catterson waiting for more than two hours while another candidate interviewed. Then the lawyers questioned Catterson closely about his role as an assistant county attorney in a controversial Suffolk car-leasing deal, sources said. 

The session was tense, but Catterson was approved. Afterward, however, the screening committee voted to change its rules so that it could flunk candidates for deficiencies in any one of several categories, including temperament. 


Catterson, who in less than a year as a judge has become known as one of the hardest workers on the Suffolk Supreme Court, declined to comment on the screening process, other than to say that he was "happy with the outcome." 


Regardless, though, Catterson said the "bottom line," in the process that led to his election was that Powell "was familiar with my work. 

"I'd like to think he made the decision on the quality of lawyering along with my credentials as a Republican." 

Asked whether his father played a role in his nomination, the judge said at first, "I'd like to think not." 

But, he added, "The world is a complicated place." 


HOWARD BERLER
<Back to Judge List>

In her $46,318-a-year job as secretary to State Supreme Court Justice Howard Berler, Laura Trunzo types decisions, tracks the court calendar and fields a ceaseless stream of telephone calls. 

Berler praises her skill. But the Islip Republican also admits that something else helped her win the job -- Berler's belief that offering the position to the daughter of a politically connected friend might hasten his climb up the judicial ladder. 

Back in 1982, when he was a District Court judge, and the State Legislature was considering creating more Court of Claims judges, Berler said he told state Sen. Caesar Trunzo that the Brentwood Republican's daughter would be his secretary if he were appointed to one of the new spots. 

Those judgeships never materialized. But in 1984 Berler was elected to Family Court in Suffolk County -- and he hired Laura Trunzo for the secretarial job that came with it. 

Then-Islip Republican leader Tony Pace wasn't pleased, Berler recalled. Pace had a different candidate in mind, Berler said, but the new judge felt he'd made a promise to Trunzo. 

For the next seven years, Pace repeatedly refused to let Berler move up from Family Court, though the leader said it was just not his time yet. 

Finally, Berler's luck changed. In 1989, Caesar Trunzo became Republican leader in Islip when Pace retired. 

"All of a sudden I end up in the Supreme Court," said Berler, who sits in Central Islip. "What do you think, it's because I was the best Family Court judge in the state? No, it's because I hired his daughter eight years ago." 

Laura and Caesar Trunzo deny that her job had anything to do with Berler's promotion. 

"He knows her since she was a little girl," said Caesar Trunzo. "He knows her capabilities." 

When it came time to hire a law clerk for Supreme Court, Berler was grateful that neither Trunzo nor any other political leader pressed a candidate on him. 

So Berler happily hired as his Supreme Court clerk Peter Sereduke, a well-regarded expert in matrimonial law. 

Sereduke has no party affiliation because he feels such an association would compromise his objectivity as a law clerk. 

Still, Sereduke realizes he has paid a price for his political independence: He has had to give up his "dream" of becoming a judge. 

"I'd love to be a judge, but you've got to live your life the way you feel best living it," Sereduke said. 

"I say to myself, ‘Why do I have to join something to become a judge?"' Sereduke said. "I can't see why if I'm competent I have to join a party or club or group. I just don't understand. It doesn't seem to be the American way." 

<Back to Top>


The Route to Bench: Party Line

Judicial candidates must pay political dues before getting chance

<Back to Top>

 

By Rick Brand and Irving Long
Staff Writers 

I
F A young lawyer were to seek out counsel from Joseph Mondello on how to one day become a judge, the Nassau Republican leader would offer this advice: 

"I would say that is a very laudatory ambition and one that I can identify with, but you have to walk before you can run. 

"You join the organization and become a part of us and know what we are and become one of us, and then get in line with the rest of the people looking to become a member of the judiciary. And you will get your opportunity." 

Certainly, on Long Island, the record bears him out. 

Virtually all judicial candidates come from the ranks of lawyers active in party work, elected or appointed officials who are being rewarded or banished, or those with close personal or family ties to the right political powers. 

Though Democrats have made inroads on Long Island in many other offices, Republicans' enrollment advantage allows them to dominate State Supreme and County Court spots, where voters choose almost exclusively on the basis of party affiliation. The party's nomination, rather then the general election, is the key hurdle. 

"Most of it is a recognition of work they do for the party or their loyalty to the leader -- their reward is to put the robe on," said Edwin Buzz Schwenk, a former Suffolk Republican chairman. "If there's any talk of quality, it's the fifth thing on the list." 

To be sure, there are many variations on the theme: 

Years of carrying petitions, performing time-consuming election law work and doing other party chores can eventually earn an attorney a secure spot on the bench with a six-figure salary. "It's close to a tradition," said one Supreme Court justice from Suffolk, who was passed over a few times before he finally got the nomination. "You break your neck for the party, and you get a nomination." 


Performing other thankless tasks, like running against powerful, entrenched incumbents, is a good credential. In 1980, Sandra Feuerstein, a former schoolteacher turned lawyer, was the first Republican in six years to take on popular Long Beach Assemb. Arthur J. Kremer, a Democrat. "She did run against Jerry and bit the dust," said Mondello, who secured for her first a District Court and then a Supreme Court slot. "It was another mark on her report card. She always wanted to be a judge. It didn't hurt her at all. It was a factor." 

Relatives or close friends of a powerful political leader often can leapfrog over others waiting in line, and skip the traditional training ground of District Court, which handles misdemeanor cases. Elizabeth Emerson was a Wall Street attorney specializing in mergers when her father, former Brookhaven Republican leader Walter Hazlitt, approached then-Brookhaven and Suffolk GOP leader John Powell about a Supreme Court run for his daughter. "He and I are close, and, of course, we talk about our children, their future and their desires," Hazlitt said. Emerson was elected in 1995. 

And sometimes, just posing a political problem is enough to land a judgeship. When Ben Zwirn's 1989 upset made him the first Democratic supervisor of North Hempstead in 72 years, the town's Republican leader had to go. So John Dunne was put on the ticket, running first for County Court judge in 1990 and then Supreme Court four years later. 

"The court system has been part of the political system from the beginning," said Suffolk Commissioner of Jurors Michael O'Donohue, a Conservative. "It's a system that the party in power rewards people, and they're given these jobs." 

For the most part, political leaders argue that the system produces good judges. 


"It's our responsibility to put forth the best possible candidates," said outgoing Suffolk Republican leader Howard DeMartini. "It's not only good politics but good government ... I'm satisfied with the results I've seen in the four-plus years I've sat in this chair." 

But even some within the judiciary argue the system is not designed to identify, cultivate or elect he most talented jurists. 

"Everyone looks for the best house in the best neighborhood with the best schools. When they buy a car, they look for the best car. But when it comes to judges, they have no idea who's on the ballot," said Victor Regan, a former Republican committeeman who has worked as law clerk for two Nassau County Court judges since 1988. He has expressed interest to GOP leaders in becoming a judge but has never been tapped. 

Some believe the blatantly political nature of the selection process and necessarily close ties between political leaders and judges can create an appearance of impropriety in an arena that demands nonpartisan justice. 

At induction ceremonies, for example, judges routinely thank their political leaders first and foremost. 

"These people all know how they got where they are, and they all want to go on to a higher court, and they all know who will decide that, and you know it's got to have an effect on how decisions are made on the bench," said A. Thomas Levin, a past president of the Nassau Bar Association. "... it bothers me a lot." 

But many jurists, including some of the most well-respected, make no apologies and say there is no conflict. 

"Judges are where they are because of a political organization. No judge gets him or herself elected on their own. It's an electoral process," said Supreme Court Justice Ira Wexner, the supervising judge of the County and District Courts in Nassau County. "The chairman makes recommendations to the county executive committee, and if he doesn't, it probably won't happen. There's nothing wrong with publicly thanking the chairman. I did." 

Supreme Court justices, elected to a district that covers both counties, serve 14-year terms, presiding over mostly civil litigation and earning $136,700-a-year. County Court judges, elected separately in Nassau and Suffolk, handle felony criminal cases during their 10-year terms, and earn the same salary. There is no legal qualification other than membership in the bar and 10 years as a practicing attorney. 

Local judges make dozens of decisions every day affecting everything from multimillion-dollar civil judgments to freedom and jail time. But voters make decisions once a year knowing little if anything about the names next to the levers they pull. 

Something as seemingly basic as the order of names on the ballot often determines who will end up on the bench. Last fall, County Court Judge Michael Mullen lost because he was listed last of the six Republicans running for Supreme Court, and he did not have the Conservative nomination. Better ballot position or the Conservative line would have made the difference. 

The minor party designation has been key to victory in recent years, and the relatively small Suffolk Conservative Party has become a powerful force in judicial politics under the leadership of Pasquale Curcio. 

For more than two decades, Republicans have generally aligned with Conservatives, providing Republicans the added insurance of a line that generates 35,000 votes in Suffolk and another 25,000 votes in Nassau. Curcio has parlayed his leverage into judgeships for a half-dozen
Conservatives, and has wielded considerable influence by deciding which Republicans to support. 

"He has reaped inordinate benefits from a political party that has a minimum number in its committee," Suffolk Democratic leader Dominic Baranello said about Curcio. He went on to compare Curcio's party to the fish that scavenge after sharks, calling Conservatives "remora that get their sustenance from another body." 

Across Long Island, dozens have found their way to the bench through working in judicial campaigns, serving as municipal lawyers, assistant district attorneys, or judicial law clerks, and cultivating ties within legal and political circles. 

But there are key differences between the paths in Suffolk and Nassau.

In Nassau, it's a centralized system with clearly defined routes. District Court spots are used as stepping stones for the higher, more prestigious courts. Certain appointed jobs are traditional launching pads, including the county attorney the Hempstead town attorney, and executive assistant to the supervisor in Hempstead. 

Three candidates who ran against former Assemb. Lewis Yevoli won judgeships after losing to the entrenched Bethpage Democrat. "No doubt about it, they were hoping there would be a consolation prize along the way," Mondello said, while denying there was any quid pro quo. 

The Nassau leader also tends to select older candidates for Supreme Court. By picking a candidate near the 70-year-old mandatory retirement age, Mondello can get another shot at filling the same judgeship in a few years because the state generally allows older judges to remain until they turn 76 without taking up a slot. 


In addition to getting a second nominee without waiting the full 14 years, the strategy of picking older judges allows the Nassau Republicans to groom a younger, more energetic generation of politicians for town and county posts, moving them into vacancies created as their elders become judges. 

In the farflung and politically decentralized Suffolk County, geography has been key. 

For most of the past two decades, a prime factor in selecting Republican judicial candidates had been ensuring that retiring judges are replaced by candidates from the same town. 

"At least it provides for consistency over a period of time and provides for career ladders in each of those towns," DeMartini said. 

But during Powell's tenure, the well-established geographic protocols broke down, often in favor of candidates from Brookhaven, a town whose party Powell also controlled. 

Emerson, the daughter of former Brookhaven leader Hazlitt, was one example. In the past, the spot she got would have gone to an East End candidate. Then last year, Powell selected James M. Catterson, son of the Suffolk district attorney, for a vacancy that normally would have gone to Babylon. 

Powell, who resigned earlier this year while fighting federal corruption charges and declined to be interviewed, has left it to his successors to sort out the political IOUs, a task that will complicate deliberations as the party prepares to nominate candidates in a bicounty judicial convention Thursday. 

Political leaders in both counties also use judgeships to fix a host of other seemingly unrelated political problems. 

In 1992, DeMartini hatched an irresistible offer over a social dinner with then-Babylon Supervisor Arthur Pitts and their wives: Pitts, a Democrat, would get endorsed by the Republicans for a County Court spot, opening up a chance for the Republicans to recapture the top job in Babylon Town Hall. Pitts won, but Republicans failed to win back Babylon. 

Similarly, Huntington Republican leader Robert Lifson became a Supreme Court justice in a move by Powell that removed a potential rival. "It was pretty common knowledge that he wanted to become county leader someday or become a judge, and since he was never going to be a county leader with Powell as leader ... he made the move," DeMartini recalled. 

For political leaders, the ability to hold out judgeships as a reward is a potent tool to keep the party mechanics working. Lawyers, who are usually notaries, carry petitions to get candidates on the ballot; this is particularly important for the minor parties that often are short on volunteers to collect the requisite signatures. Lawyers who want to be judges volunteer their time to knock opponents off the ballot. They serve as treasurers and counsels to party organizations, and in some cases town party leaders. 

When Mondello in 1984 ended a longstanding practice in which Democrats and Republicans cross-endorsed judicial candidates, it had wide-ranging ramifications. First, it ended the careers of some longtime and well-respected Democratic jurists, who could not get elected on the Democratic line alone. That opened up lots of judicial slots for the Republicans. And, in perhaps the least noticed public impact, it deprived the already struggling Democratic Party of one of its powerful enticements to get volunteers to help the party. 

"There was a complete lack of support on the part of the Democratic Party in terms of resources, lists, itineraries, opportunities to speak," said Robert Sale, who switched parties in disgust after three losing judicial runs as a Democrat. "... there was absolutely no effort to help me in any way." 

Democrats now sometimes have difficulty fielding a full slate to run for judicial posts. 

"In our party, we don't have anything to give to anybody, so it is sometimes hard to find candidates," said Nassau District Court Judge Elaine Jackson Stack, although the North Hempstead Democrat said prospects have improved under the new party leadership. 

Mondello said his decision to end the deal with the Democrats was more than just political self-interest. "We decided to do the right thing and go back to let the people decide," he said. 

But critics say the current situation fosters a judiciary that lacks quality and diversity, where women, Democrats and minority groups are vastly underrepresented. There are nine Democrats and six Conservatives among the 89 elected County and Supreme Court judges; there are two black judges and seven women. 

The result, said Levin, the former head of the Nassau Bar Association, is "we're getting people who are very one-dimensional and that's a problem ... it affects the way they work." 

The court, with its lengthy terms, also is a soft landing spot to offer more senior elected and appointed officials, and there are many familiar names: former Suffolk County Executive Peter Fox Cohalan; former Suffolk Legislature Presiding Officer Donald Blydenburgh; former Glen Cove Mayor Donald DeRiggi. 

"I called my own shot," said Cohalan, who as the party's top officeholder dictated his timetable and became the fifth Cohalan on the bench. 

Cohalan isn't the only member of a political dynasty to follow his father to the bench. After 30 years in private practice, Frank Gulotta -- the son of a legendary district attorney and judge, and the brother of the county executive -- let it be known in 1995 he'd like to be a judge because he was having trouble getting around after hip-replacement surgery. 

"I don't think it hurt me," Gulotta said. "But, I would like to think it was based on my abilities and what I accomplished personally rather than my name." 

It's a longstanding tradition that politicians close to political leaders have a clearer route to the bench. William Underwood, one of the veterans on the State Supreme Court, was both a business partner and friend with the legendary Suffolk powerbroker and Republican leader Richard Zeidler. Though he said he was "too busy" to appear before the bar association screening panel in 1973, Underwood found time to help the party even while on the bench. As a District Court judge in 1970, he dressed up in a reindeer costume for a Christmas party and entertained 800 Republican faithful. Zeidler appeared as Santa Claus. 

Sometimes town party leaders use their clout in Suffolk to promote their own candidacies. Lester Gerard got a State Supreme Court judgeship after serving three years as Southampton Republican chairman. 

"It's nice to be a country lawyer, but it's a tough row to hoe," said Gerard. A judgeship, he added, "is like Halley's comet. It comes once every 75 years. When it's there, you take it." 

<Back to Top>


Justice, Politics, Cash and the Bar

For their campaign funds, judges turn to the lawyers they work with every day

<Back to Top>

 

By Andrew Smith and Robin Topping
Staff Writers
 

T
HE LAW IS an attorney's business, Joseph Miklos reasons, so contributing to judges' political campaigns is a sound investment. 

Judges, after all, interpret the law. And the bottom line of Silberstein, Awad and Miklos of Great Neck can be affected by rulings on a motion here and an objection there. So, he said, helping elect judges who are inclined to agree with him philosophically is just good business sense. 

"I don't know any lawyers who aren't involved politically," said Miklos, whose firm has given a total of $12,550 to 14 judicial campaigns in the past six years. "You have to be. You want to influence the process any way you can." 

It's a common sentiment among Long Island attorneys: When the judges you appear before every day send you a fund-raising letter, you get out your checkbook. The last time each of the 89 elected County and State Supreme Court judges ran, they reported raising a total of $1.6 million. 

The state's code of judicial conduct seeks to insulate judges from partisan politics, but dozens of interviews and a computer analysis of campaign finance reports for County and Supreme Court judges show the system is compromised by vague rules that do little to prevent potential conflicts of interest: 

Lawyers, who help run judicial campaigns and solicit money, contribute most of the campaign funds, often to the very judges they try cases before. Almost one-quarter of all the money raised by the Supreme Court justices in their last campaigns came from law firms that were the attorney of record in half the cases in the past five years. 

"I don't expect anything from them and don't get anything from them,” said Anthony Capetola, whose law firm and other companies have contributed more than $22,000 to 21 Supreme Court justices. Lawyers from Capetola and Doddato were attorneys of record 160 times before those judges between 1994 and 1998.

It's easy for judges to know who is financing their campaigns, even though judicial ethics rules say they should not know the names of contributors because of the potential for conflicts of interest. 

"You're not supposed to know ... except that when you walk into the fund raiser you see who is there," said former State Supreme Court Justice Alfred Lama, a Democrat who is seeking to return to the bench this year. "But you don't know if they gave $5 or $5,000, and thank God because I don't want to know." 

Judicial campaigns routinely raise more money than they need to win and often funnel a portion of it back to their parties by buying tickets to political functions. During their most recent campaigns, judges gave at least $107,700 to political parties, aside from reimbursements for expenses, such as printing fliers and bumper stickers. Judges are the only candidates barred from donating money to political parties or other candidates, but for
more than a year around Election Day their campaign committees can buy tickets to fund raisers. 

"You're a candidate for the party, and you want to show that you are being supportive," said John Manning, treasurer for Supreme Court Justice Ira Wexner's 1998 campaign, which bought $4,409 in tickets to Republican fund raisers. 

No matter how little money they raise, Republican-backed candidates almost always win. There are only six Democratic judges who won their last election without also appearing on the Republican line. Democrat Leon Lazer spent $60,000 trying -- and failing -- to hold on to his Supreme Court seat without the Republican line in 1986. That was more than twice
the total spent by the three Republicans who were elected. One of them, Justice Bernard McCaffrey, spent a paltry $1,360. 

"If you have the Republican, Conservative and Right to Life lines, you're going to win whether you have a nickel or $4 million,” said outgoing Suffolk Republican leader Howard DeMartini. 

Newsday compiled a database of contributions and expenditures for the last campaign of every elected County and Supreme Court judge on Long Island. Because the terms are 10 years in County Court and 14 in Supreme Court, and because some of the seats are open each year, the database covers the past 14 years. Some of the oldest records have been destroyed by the state, and some judges did not have to file because they raised less than $1,000. But the available records show that the average campaign raised and spent about $24,000. 

In a place where a single congressional race can cost as much as the $1.6 million the judges spent all together, that total might seem insignificant -- except that so much of it comes from the attorneys whose income and careers can be directly affected by the rulings of County Court judges, who almost
exclusively preside over criminal cases, and Supreme Court justices, who hear civil suits. 

When judges run for election, they can't ask for donations directly, so they have to form committees, made up almost exclusively of lawyers, to solicit money. The first -- and sometimes only -- place that the campaigns turn for cash is other attorneys. 

"Some of the judges look at this firm as a cash cow," said a partner in a large Nassau law practice. "It's a political firm, and it's the cost of doing business. I don't have a problem with it."

It does bother some of the judges. 

"The hardest part of the campaigning was to know that these attorneys who practiced before me were probably asked by my committee to give money," said Nassau County Court Judge Abbey Boklan. "I am the type that when my kids sold Girl Scout cookies, I would buy them all myself because I didn't want them asking the neighbors for money." 

Ed Jenks, treasurer for Nassau County Court Judge Daniel Cotter's 1994 campaign, was one of the attorneys who did the asking. He found a willing audience for the former assistant district attorney's bid to preside over criminal cases. 

"Danny is a very, very active fund raiser," Jenks said. "Some of it was that I went to almost every former ADA and said, ‘This is your opportunity to put someone on the bench who is qualified,' and almost all the former ADAs were very receptive.” 


In rare cases, such as Supreme Court Justice Robert Doyle's, a judge can raise money with little effort both because of his position and his popularity with attorneys. As the trial assignment judge in Suffolk, Doyle, an enrolled Conservative, can influence the direction of every civil case there with his ability to encourage settlements or assign cases to particular judges for trial. Doyle, who is widely respected by attorneys, raised $147,000 in his last campaign -- tens of thousands of dollars more than any other judge. 

But while the campaign benefited from lawyers' largesse, ethics experts said Doyle did nothing wrong. 

"He just wanted to keep his job," said Steven Lubet, a Northwestern University law professor who has written extensively on judicial ethics. "The scandal is what's considered ethical. You have a system where it's completely ethical for a judge to go out and raise $147,000 from lawyers who have cases before him." 


New York Chief Administrative Judge Jonathan Lippman said that while he doesn't think the system should be changed without broad campaign-finance reform, he understands how some people could say the current system is flawed, likening it to the practice in other types of campaigns where donors give money in an effort to get contracts. 

"One could argue that on the non-judicial level that people make contributions, and it has certain signals, you know, pay to play,” he said, "and it's the same issue: Does it buy influence, should it be limited? But you run into legal issues and broad public policy issues.” 

Nassau Republican Chairman Joseph Mondello is worried about more practical matters when it comes to judicial campaigns raising money. Fearful of siphoning money from party candidates in more competitive races, he bars judicial candidates from holding fund raisers, relying on solicitation letters to lawyers instead. 

"They have raised quite a bit of money that way,” Mondello said. " ... If they do raise money, they are not going to raise as much as the person running every two years. I think they are better off with the lawyers' committees, raising money through the mail." 

Many attorneys, overwhelmed by the sheer number of fund-raising letters, said they feel pressured to give. 

One defense attorney said he recently joined his bar association's judicial screening committee primarily so he would have an excuse not to give. Attorneys on the screening panel are not allowed to contribute to judicial campaigns. 

"They are shameless in their solicitation of lawyers," said another lawyer, who said he feared retribution if he were identified. "I think they know who contributes and who doesn't. It may not make a difference in the final decision, but it would in terms of preliminary things in a case and in subtle ways and settlement negotiations." 

Judicial ethics rules permit and even encourage lawyers to contribute to judges' campaigns, but there are assorted opinions on whether a lawyer can give while he or she has a case pending before the judge. 

Some attorneys make their own rules. 

``If my case is going before them, there is no way I am giving money to them,'' said Mineola attorney Adolph Koeppel, who along with his firm has contributed $7,650 to 14 judges in the last 8 years. ``That just doesn't work. And my own view is that if it's permitted, someone should work on the canons of ethics.'' 

But others said they see nothing wrong with giving to judges they may appear before, and they merely want to help jurists they know and respect. 

Kenneth Weinstein of Garden City said he waits every year for solicitation letters from judges' campaign committees to show up at his office, and then decides whom he'll support. He has given a total of $4,350 to 20 judges in the past 14 years. 

But once he's made his contribution, he said that's the last he hears of it. 

"I've never had a judge even acknowledge a contribution," Weinstein said. "Nor have I had a judge say, ‘Hey, you didn't contribute, and I'm going to punish you."' 


Anthony Capetola said the goal of his firm's political donations is not to gain influence. 

"I give to people I've known a long time," he said. "The judges I contribute to I grew up with in this business. We were prosecutors together [in the Nassau district attorney's office] or we had cases against one another, we were adversaries or co-counsels." 

And the fact that nine of those judges spent a total of more than $30,000 to have victory celebrations at Carltun on the Park, the East Meadow restaurant co-owned by Capetola, is insignificant as well, he said. 

"Any time you do one of those functions, they're not very profitable," he said. There's nothing untoward about his firm's contributions, he said. 

"I guess everybody has their level of charity," he said. "I give to everybody. I give to the bar association. I give to the Salvation Army. My level of giving fits my income level and my desire to help people who I think need it or deserve it." 

How judges spend their money raises questions about the influence of political parties in their races, as well. Because state ethics rules don't allow judicial candidates to criticize their opponents or take stands on issues that come before them, they don't spend much compared with other campaigns. 

A judicial candidate is campaigning aggressively if he or she goes to political party dinners, puts up lawn signs, gives out bumper stickers and takes out a small ad in a weekly paper. 

Beyond that, judicial campaigns have few expenses, and, unlike every other candidate, judges can't keep the surplus for the next time they run. 

As a result, many plow a chunk of it back into political parties and other campaigns by buying tickets to events such as fund-raising dinners, "victory brunches" and inaugural balls. It's the only kind of political giving they can participate in, and the only time they can do it is from nine months before the nominating convention to six months after the election. 

Not surprisingly, the Republican Party is the big winner in both counties, getting $82,065 over the past 14 years for things other than reimbursements of expenses. 

Jenks, the treasurer for Cotter, explained how the campaign spent more than $1,500 on nine party functions. 

"I had the checkbook, but his campaign manager was George Thorson from Nassau County Probation," Jenks said. "George would say write a check to the Nassau Republican Committee for whatever and I would mail it to the Republican Party, and they would send the tickets to the campaign manager, and the campaign manager would give out the tickets." 

The code of judicial conduct now limits ticket purchases to two per campaign, but the limit until recently was the harder-to-define "reasonable number." For judges, buying tickets had the dual purpose of making themselves visible to the party faithful and
supporting their party. 

"If you're determined to go to everything, you can go to functions for breakfast, lunch and dinner," said Supreme Court Justice Howard Levitt. "I think my wife made up a chart day by day, and I would try to make as many as possible. 

"It's to let people know who you are," Levitt said. "... They will call on you to say a few words, but you're last in the lot. The county executive is the biggest and then the town supervisors and if there's time, and people aren't terribly bored, then here come the judge." 

Supreme Court Justice Edward McCabe is making the rounds now. 

"I try to go from table to table,” he said, "and say something like, ‘Hi, I'm Ed McCabe, you probably don't remember me because I haven't run for 14 years, but here I am."' 

Even after their election, there are opportunities to repay the party, what some call the "Thank-You Tour." Seven out of nine judges who were elected in 1997 bought $500 tickets to the February, 1998, Republican inaugural ball, a widely attended celebration for the party's election winners. 

Mondello said judges ought to attend political functions to meet the public and party workers, not to contribute money to the party. "I never look at what any judge gives to this party or what he has given to me,” he said. 

Judicial campaign spending is governed by a pastiche of vague and sometimes conflicting opinions from election law, judicial canons of ethics and bar association rulings. 

For example, while state officials say the canons of ethics prohibit charitable contributions with campaign money, election law appears to permit them. 

Four Nassau judges used campaign funds to donate $1,520 to a foundation that raises money for cancer patients and their families and is run by Joseph Cairo, the second most powerful Republican leader in the county. 

"Since the campaign fund could still be used for going to activities, I used it,” said Supreme Court Justice Ira Warshawsky, whose committee gave $640 in three payments, both before and after his November, 1997, election. "As far as the propriety of the campaign fund giving to a charitable organization, I don't know one way or another. I never thought about it; no one ever raised it to me.” 

Some politically related contributions fall in a gray area created by the murky guidelines. Doyle's campaign paid $3,000 for an ad in the Torch Tribune, a publication controlled by Suffolk Conservative leader Pasquale Curcio. The state Commission on Judicial Conduct is currently investigating more than two dozen Suffolk judges -- none publicly named -- to determine whether they violated the rules by making such payments. 

The American Bar Association wants to limit the role of money in judicial campaigns. 

"The bench and bar face unblinkable evidence that campaign contributions severely erode public confidence in courts,” said a report by an association task force that recommended changes. 

The bar association advocates putting a cap on contributions. And the association recommended a judge recuse himself or herself if an attorney in a case exceeds the contribution limit. 

Further, the task force said unopposed judges should be barred from campaigning and raising money. 

Not everyone is convinced change is necessary. Mondello, who is also an attorney, said there's nothing wrong with relying on the honor of lawyers. 

"Maybe Joe Mondello is more of an optimist than people think, but you can't paint all lawyers with the same broad brush," he said. "I don't think most of them think that if they give a contribution today, that tomorrow the judge is going to fix up a case when they go to court. A lot of people contributed to me, and I didn't do them any favors. I did what was right." 

<Back to Top>




Judges And A Jury Of Their Peers

Before lawyers can become judges, they face screening by ... a panel of other lawyers
<Back to Top>

 

By Robin Topping and Irving Long
Staff Writers 

T
WICE BEFORE, Michael Fiechter's abrasive personality had cost him a shot at the bench when the panel of lawyers that screens candidates concluded his penchant for blowing up would make him an unsuitable judge. 

In the spring of 1997, Fiechter, then a county legislator, appeared yet again before the Nassau Bar Association's Judiciary Committee. But this time, he was coached at Nassau Republican headquarters to project a more placid demeanor. Some of the very same GOP colleagues he had been clashing with on the legislature showed up to sing his praises. 

And most importantly, Nassau Republican Party Chairman Joseph Mondello, embarrassed by Fiechter's public outbursts and under pressure to get him out of public view, threw his weight behind the nomination. In fact, Mondello had formed his own screening committee and was threatening to boycott the bar association process. 

"We knew this was a guy we were going to have a problem with, and at the same time, we knew that Mondello wanted him," said one lawyer who sat on the judicial screening committee. 

Fiechter, a member of the small but influential Conservative Party, was found qualified to preside over misdemeanor cases in District Court and was elected that fall. 

But the bar association had demonstrated to many that its stamp of approval -- an endorsement touted by judges, lawyers and political leaders as the only independent assurance of quality on the bench -- could be tainted by politics. 

"It changed the perception of the process," said A. Thomas Levin, chairman of the committee at the time. "There's a perception that the committee is reluctant to turn people down because of the possible consequences." 

Bar association screening -- where lawyers question judicial candidates and then in secret deliberations deem them qualified or unqualified -- lies at the center of an intricate and potentially conflict-laden relationship among the bar, the bench and the political leadership, the triumvirate that makes judges on Long Island. 


Lawyers appear before judges, who control their professional lives through rulings, decisions and case assignments. Judges need lawyers to form campaign committees, raise money for their campaigns and contribute to them. Often, lawyers want to become judges and will appear before the very screening committees they once served on. And aspiring judges must be active in political circles and prove their loyalty, not to the canons of judicial ethics but to the political parties. 

"To become a judge, you have to be an active participant in the political system," said Sanders Kurtz, chairman of the Suffolk Judicial Screening Committee. "Merely being an excellent lawyer will not make you a judge. There are a lot of excellent judges but there are also excellent lawyers who won't be judges because they are not part of the political process." 

Because a cadre of lawyers are active in the bar, the courtroom and the political milieu, awkward moments and divided loyalties inevitably ensue. 

"You're sitting there having to ask questions of a judge you'll appear before the next day, and the questions aren't always that pleasant," said one former member of the screening committee in Suffolk. 

The bar rating is generally the only public comment on judicial qualifications in a campaign in which candidates aren't allowed to criticize each other or take positions on issues that may come before them. And because few voters know much about judicial candidates beyond their party affiliation, the bar's rating, hailed as apolitical, often is cited as a credential in campaign literature. The bar also advertises, listing only qualified candidates and urging the public not to vote for those who
weren't screened or were found "not approved at this time,” the rating lawyers and judges refer to informally as unqualified. 

The committees do not seek out candidates, but screen only those sent by political leaders. Candidates fill out lengthy questionnaires and other attorneys are asked to submit comments, but sometimes there is little time to do more than a cursory review. With some notable exceptions, parties have adhered to an agreement to run only candidates found qualified; in a few cases, judges have been elected despite an unqualified rating. 

A candidate found unqualified can ask for a re-hearing, as Fiechter did, at which he or she may present witnesses. The candidate may also appeal to the bar's board of directors, who can reverse the committee.

The screening process is the same for all levels of court, but in deliberating, committee members apply higher standards for candidates hoping to preside over felony criminal cases in County Court or civil litigation in State Supreme Court. The six-year District Court position, with a salary of $122,700, is often a springboard to the higher-paid and more prestigious county and State Supreme Court jobs, particularly in Nassau. 

As is sometimes the case, Fiechter was made a judge to solve a political problem. Mondello wanted Fiechter, a Conservative, off the county legislature and out of the public spotlight, political and bar sources said, after a series of embarrassing outbursts. In July, 1996, Fiechter got into a public shouting match with a fellow legislator on affirmative action and said, "There is only one race
in this country, and it's American." A few months later, he caused a stir when he called out in German, "Jahwohl!" during a vote on anti-poverty programs, after protesters called the legislators Nazis. He often spoke condescendingly to citizens airing complaints to the legislature. And behind the scenes, he was also fighting with Republican colleagues. 

But Mondello couldn't risk alienating the Conservative Party, whose support for Republican candidates is often crucial, especially in judicial races, so he decided to back Fiechter for the judgeship, sources said. 

Mondello said his decision to form his own judicial screening committee just at the time the bar association panel was considering Fiechter was a coincidence, not an attempt to gain leverage. He was merely acting out of unhappiness with the Democrats' refusal to send some of their candidates
before the bar, the chairman said. Mondello's panel does interview candidates, but then sends them to the bar association committee. 

Two years earlier, in 1994, Fiechter, a former county prosecutor and defense lawyer, had been sent to the bar screening committee but withdrew when it was clear he wouldn't be approved. This time, he was found unqualified initially, but appealed. 

While judiciary committee members are barred from speaking publicly about deliberations, several privately attributed the reversal to a combination of fear that Mondello would push the bar association out of the process and satisfaction with Fiechter's improved presentation and testimonials. 

Fiechter, who is being screened this month for the Supreme Court nominations that will be decided tonight, said it was the panel that erred when he was first turned down in 1997. He credits the change to his performance and the witnesses he provided. 

Asked whether Mondello played a role in the outcome of his screening, Fiechter said, "I can only speak for myself ... My credentials far exceeded the minimum requirements ... The qualifications were obviously there." 

But other lawyers saw it as a sign the bar association had caved to political pressure. 

"The public, which generally knows little about the qualifications of the judicial candidate, can no longer rely on the screening process to assure quality control," Gary Brown, then-executive director of the Fund for Modern Courts, a nonprofit group that monitors courts and judges, wrote at the time. The reversal left the committee looking, in his view, like a "toothless tiger." 

There are no public figures on how often the committees turn down candidates, and often, candidates about to be turned down are allowed to withdraw first. And sometimes political leaders use screening committees to turn down candidates they don't want to refuse themselves, even though they are unqualified. 

Votes of individual members are not supposed to be revealed, and no committee member interviewed said they felt that a judge retaliated against them, or gave them favorable treatment, because of their actions on the committee. But they did say it could lead to uncomfortable situations. 

"I have been on the judiciary committee when we found one or two sitting judges unqualified, and I felt very uneasy appearing before that judge, but I have done it," said former Suffolk bar president and judiciary committee member A. Craig Purcell. "You just hope that they are big enough to not take it out on your client." 


Until the mid-1980s, the Suffolk bar issued three ratings -- unqualified, qualified, and well-qualified. But they eliminated the last distinction in the wake of another controversial ruling involving a Republican primary for the powerful position of surrogate judge. 

In 1985, the Suffolk panel found then-incumbent Surrogate Judge Ernest Signorelli qualified for re-election. But it found his opponent, then-County Court Judge Kenneth Rohl, well-qualified. 

Though the distinction could have boosted Rohl's chances in the primary, any potential gain may have been undermined by the revelation after the ruling that Eric Naiburg, who voted for a well-qualified rating, was Rohl's former campaign manager. Signorelli won the primary and the election. 

"I was only one vote and didn't have the influence to sway the committee and I believe that he was highly qualified," said Naiburg, who resigned from the screening panel. "... But I felt bad for Rohl in that my presence on that committee probably cost his election." 

A Suffolk bar task force concluded Naiburg should not have been on the committee because it gave an appearance of impropriety, and at an open meeting, bar association members voted overwhelmingly to eliminate the well-qualified category. Nassau also eliminated one of the qualified categories. 

"The distinction wasn't that great, but it could make a difference in the election," said then-Suffolk bar President Joshua Pruzansky. 

To others, however, the change meant the bar was abdicating its role in differentiating between mediocre and excellent candidates. "All we can do is give a thumbs-down for people who are clearly unqualified," one former bar association president said. 

The Suffolk bar initiated another change this year, again in response to a particular screening, bar sources said: in this case that of James M. Catterson, son of the district attorney. 

After a tense and often acrimonious session before the panel last year, some committee members felt that while Catterson was clearly qualified in terms of legal experience, he posed problems in terms of temperament. While the panel approved him, and he went on to win a State Supreme Court seat, the bylaws were subsequently changed. 

"I was glad to be a part of it and happy with the outcome," Catterson said of the session. He declined to comment on the temperament issue. 

This year, members of the judiciary committee will approve a candidate only if deemed acceptable in each of four categories: character and integrity, judicial temperament, legal scholarship and experience. 

"We felt as a committee that the rules had to be tightened and the candidates should pass all the categories," said Kurtz, declining to comment on the Catterson screening. "We felt this would help put more quality judges on the bench." 

Lawyers are invited by the bar association to sit on the screening committee, and it is considered a prestigious panel. Both bar associations have rules against political involvement, banning committee members from working on judicial campaigns or contributing to them. But committee members rotate, so while they suspend political activity during the duration of their service, many still have
close political ties from the past. 

"Historically, the bar association has always had too close a relationship with the political powers," Robert Gottlieb, a Suffolk criminal defense attorney and former Democratic candidate for district attorney, said about his county. "Because of that relationship, the screening of judicial candidates has never truly been an independent screening." 

Members of the committees, generally about 20 in each county, acknowledge they are sometimes aware of a candidate's political connections, and while no member said they had been overtly lobbied by a politician, some suggested that wasn't really necessary. 

"I was never personally importuned," said John Bracken, a former Suffolk Bar president and former judiciary committee member. "But these are large committees, and I suspect there are those who are politically connected who have been influenced." 

Kurtz defended the independence of the Suffolk panel. "In the six years I have been on the judiciary committee, I haven't seen politics play a role," said Kurtz. "People are getting turned down who are being sent by political leaders, and my sense is that there will be more rejections than in the past because of the new tightened screening rules." 

But a recent case illustrated how the political and legal worlds often overlap behind the closed doors of the screening panel. 

Sonia Veras Keahon had served as an assistant town attorney in Babylon and worked in her husband's Islandia law office when she appeared before the Suffolk bar's screening committee in 1997. A Republican, she had been admitted to the bar only six years earlier and had relatively little courtroom experience. With an overwhelmingly white, male judiciary, as a Hispanic woman she was a fresh face. 


She was also married to one of the best known and politically active lawyers in Suffolk. William Keahon, now a member of Suffolk's judiciary committee, was then-Suffolk Republican leader John Powell's personal attorney and close friend. He had been the lawyer for Suffolk Democratic leader Dominic Baranello's wife and done legal work for Conservative Party officials. 

Bar sources said the panel felt her background and credentials were sufficient for the District Court job she sought, a lower level court viewed as a training ground. 


Veras Keahon, who went on to win the seat and declined to comment on the process, "made a good presentation," one committee member recalled. 

"I think she got in on her own merits," William Keahon said. 

But members were certainly cognizant of the political connections. 

"OK, she's Billy's wife," one former committee member said. " ... but who doesn't get those jobs unless they are close to the party leader or the executive leader? You don't become a judge because you are the greatest jurist." 

<Back to Top>

 

Camaraderie In, Out of Court

Close ties between bar, bench

<Back to Top>


By Robin Topping and Irving Long
Staff Writers 

HANGING IN THE cavernous, first-floor courtroom in State Supreme Court in Mineola are framed, poster-sized photographs of the jurists who have served there -- their likenesses gracing the walls courtesy of the county bar association. 

"It's something that is nice to do, a living memorial of the judges who have sat in Supreme Court," said Nassau bar president Joel Asarch of the $1,200 pictures. "When the portraits are unveiled, it's time for friends and family to come together." 

The portraits are the kind of little touch that is typical of the relationship between the bar and the bench. Lawyers are anxious to please judges, and the judges are happy to let them because the bar and the bench need each other. 

While the courtroom is at the center of their relationship, they also chat over drinks at parties, serve side by side on committees, play golf together and lunch at nearby tables in restaurants near the courthouse or the Nassau Bar Association dining room. 

"We have a very collegial atmosphere in the court and in the county, and we work hard to promote that kind of cooperative spirit," said James Reynolds, Suffolk County Bar Association president. "... It's very difficult to be a lawyer, and if you are fighting with the judges, it makes it all the more difficult." 

Or as Nassau Republican leader Joseph Mondello, an attorney, put it: 

"If I could make friends with a judge, I'd never miss an opportunity.” 

But the inherent tension in the relationship is that they must remain distant enough to avoid conflicts of interest and close enough to dispense justice smoothly and join together on political campaigns. 

Just last week, more than 500 lawyers and judges packed into a banquet hall at an Islandia hotel for the Suffolk bar association's "Judiciary Night." The bar threw an elaborate reception in which lawyers and judges were able to mix freely over hors d'oeuvres and cocktails. 

Chief Administrative Judge A. Gail Prudenti was the featured speaker and honoree. She received a plaque, read aloud productivity statistics on court cases and publicly thanked the judges who attended, which included many of the 83 Supreme, County and District Court judges who serve in Suffolk. 

The judges paid nothing for the food and drink. And the lawyers, who paid $65, got to spend an evening with a judge outside the courtroom. 

But that's not where it ends. Judges serve on the boards of both counties' bar associations, and participate in their events and on their committees. The Suffolk bar hosts the ceremonies when new judges officially receive their robes. 

The Nassau bar dining room traditionally has a table in the center of the room reserved for judges and retired judges. In 1996, County Court Judge Frank Gulotta served as president of the Nassau Bar Association, which caused something of a stir among the members. 

"There is a split of opinion in the bar about how active the judges should be in the leadership because they come from a different perspective," said A. Thomas Levin, former Nassau bar president. "But because of that perspective they are also valued." 

The relationship between judges and lawyers can also be a tricky one. Judges in Suffolk did not take well to bar association plans several years ago to evaluate their performance. The lawyers quickly scrapped the idea after judges reacted angrily. 

Without question, the best way for lawyers to get to know judges is to have cases before them, especially a lengthy trial. Lawyers who appear often before the same judges -- especially in specialized areas such as criminal, personal injury or estate cases -- can become very chummy with them. 

Maintaining good ties with a judge can be a huge asset for a lawyer in a case. While it probably won't change the outcome of a case, mutual respect between lawyer and judge in a courtroom makes for smoother litigation and may even give an attorney an edge in getting the judge's ear. 

"Why would I want to be in a place where I would have dinner with a County Court judge?" Suffolk defense attorney and former bar president Eric Naiburg asked rhetorically. "It might not get me special consideration, but it might, if he likes me, give him more trust in the representations I make or if I am 10 minutes late, my client won't get held on bail." 

Judges exercise tremendous control over the professional lives of lawyers in rulings and decisions that can drastically alter both their financial status, and the life and liberty of their clients. Judges also have the ability to parcel out lucrative appointments to lawyers, such as receiverships and other positions that enable attorneys to garner both hourly fees and, in some cases, percentages of business revenues. 

But politically, there are also perks for judges who maintain good ties with lawyers. Attorneys in the bar association screen judicial candidates, providing the only objective assessment of a judge's abilities in a campaign where the candidates can't take positions and the public is usually unaware of their reputations. 

Lawyers are also the main source of campaign contributions for judges. Because judges aren't supposed to know who contributes to them, attorneys solicit other attorneys and keep track of the money. In fact, the only lawyers exempted from making such donations, according to the bar associations' bylaws, are those who serve on the bar's boards of directors and their screening committees. 

While judges and attorneys may need each other, it's clear it is not an equal relationship. And it's one that attorneys hope the bar association helps to even out. 

"It enhances the ability of lawyers to have some influence on the administration of justice and the courts in your county," said former Suffolk bar president A. Craig Purcell. "... It's like workers having some say with their employers because when we go into the courtroom, the judge is the boss." 

<Back to Top>


Courting A Job? It’s Who You Know
Analysis of hiring records shows courthouse jobs go to the politically connected
<Back to Top>

By Barbara J. Durkin
Staff Writer 

V
IRGINIA CLAVIN'S law degree from George Washington University and her record as a skilled assistant district attorney made her a top prospect when State Supreme Court Justice Geoffrey O'Connell needed a new law clerk. 

But she had that little something extra that didn't appear on her resume: O'Connell knew her father, a former Republican Nassau District Court judge; he had worked on her mother's successful campaign for Valley Stream village trustee before he was a judge; and he had even known her brother, now a Republican committeeman, since Donald Clavin had been a teen lifeguard at the local pool. 

To the Republican judge, it was a perfect combination. 

"It's always been my experience that ... [law clerks] were chosen on the basis of experience and ability primarily, and then you had to know who's who," said O'Connell, who was a law clerk before becoming a judge. "It wouldn't get you the job, but it made you more attractive. It's like anything else in life: If you work for a big corporation, if everybody belongs to that certain club, then you join that club. It can't hurt, and it may help." 


Whether it's to surround themselves with those who share a political philosophy, dole out prized positions to those who helped elect them, or simply pick the best person for the job, Long Island judges tend to hire the politically well-connected. 

In Nassau and Suffolk Counties, where more than 80 percent of the 89 elected State Supreme and County Court judges are Republicans, that means most jobs go to Republicans. And that holds true whether the jobs are the two controlled by each judge -- secretary and law clerk -- or the 327 that require state approval and are supposed to be free of politics. 


While judges are legally bound to rise above politics after they don the black robes, a Newsday analysis of hiring records for State Supreme and County Courts, voter rolls and scores of interviews with people in the system strongly suggests that who you know is at least as important as what you know: 

The first step to securing a job as a judge's secretary or law clerk often is a letter, phone call or visit to a party leader. Leaders pass along recommendations either unsolicited or at the request of judges. For example, Victor Regan said that when he was hired as a law clerk in 1988, he went to his local Republican leader in Massapequa Park to get the party's blessing. He did the same thing again in 1995 when he went to work for Nassau County Court Judge Daniel Cotter. 

"These are definitely political appointments for the most part," said Regan, who was a Republican committee member until 1993. "There are exceptions, but they are rare. You've got to pay your dues, walk your petitions, be active in the political club." 

Republican and Conservative county committee members, their friends and family dominate the judges' personal staffs. Nearly half the law clerks working for Long Island's elected State Supreme or County Court judges have at one time been on those committees or are closely related to someone who has. About 28 percent of judges' secretaries also are related to or have served as committee members, who get out the vote, carry petitions and select top party leaders. 

"I didn't ... go get elected to give away patronage to a Democrat. No way," said Suffolk County Court Judge Gary Weber, a Republican, whose secretary is a member of his party's county committee. "That's the other side. Why would you reward them?" 

Republican Party clout extends beyond the judges' personal staffs into 327 appointive courthouse jobs, despite a hiring system designed to shield them from politics. Newsday was able to trace the voting records of 82 percent of these employees and found that 7 out of 10 were enrolled Republicans, including 25 with close ties to the county committees. Though Long Island tends to vote Republican, that far exceeds the 42 percent of Nassau and Suffolk residents enrolled in the party. 

"Yeah, we all found our jobs in The Wall Street Journal,” Suffolk County Commissioner of Jurors Michael O'Donohoe, a Conservative, said sarcastically. "From what I know of it, it is certain party people that are recommended and are brought through the process.” 

Courts in Suffolk County have increasingly become a rich source of patronage for the tiny Conservative Party. With a Conservative endorsement often key to winning judgeships, the party has been able to fill more than 17 percent of the law clerk jobs in State Supreme and County Courts in Suffolk with past or present committee members -- even though the party accounts for less than 3 percent of the electorate. 

The Conservatives recommended committee member Paul Hensley to State Supreme Court Justice Leonard Austin, a Democrat who won election last year with the Conservative endorsement after five failed runs for judge without it. "Suggestions were made, and I chose," said Austin, explaining that he hired Hensley because he's a good attorney. "I listened to them because they had [endorsed me]." 

Those in the system defend it, however, noting that Long Islanders are largely Republican and that the dominance is simply the logical extension of an elected judiciary. Go to New York City, they say, and you'll find a system heavy with Democrats. 

"Do I recognize that we live in a world where judges are elected politically? Of course, I recognize that is the case,” said Jonathan Lippman, who as the state's chief administrative judge oversees the Long Island courts and all their employees. "Do I worry about not having the best people? Of course, I worry about it. But I don't lay awake at night worrying the political system is going to be counterproductive to the courts." 

Others, though, worry that partisanship could shake public confidence in the civil decisions rendered in Supreme Court and the outcomes of criminal cases in County Court. 

"We tend to feel most comfortable working with people who are philosophically compatible with us," said Roy Simon, a law professor at Hofstra University in Hempstead. "It's not at all clear to me that that produces the best product, and where the product is justice, it seems very important that it be as good as it can be. The public has to be confident that justice is really being done based on law and facts and not based on who knows who." 

The selection of a law clerk, many judges believe, is the most important decision they'll make. A law clerk can be highly influential, hashing out the details of cases with lawyers before they go to trial, researching points of law, and writing, or at least drafting, many of the judge's decisions. 

The clerks typically come from a variety of sources, including the attorney general's office, the district attorney's office, the county attorney's office, private practice, Legal Aid and other law jobs in the courts. 

"That person can make your life easy or difficult," said Suffolk Chief Administrative Judge A. Gail Prudenti, whose law clerk is Frank Volz III, a recent law school graduate who is the son of the former county Republican vice chairman. "They can make you look good or terrible." 


While the jobs last only as long as a judge is on the bench and earnings don't compare with those of top private attorneys, they offer other benefits: prestige, a regular paycheck that can top $96,000 for the most experienced clerks (plus 12 paid holidays, 21 vacation days after a year of service and generous pension benefits), freedom from the business of law, more regular hours and a stepping stone to a judgeship. 

While many judges say they don't question prospects for their personal staffs about their political proclivities, it's often because there's no need to. 

"It's like the Hatfields and the McCoys," O'Connell said. "When you're in the system, you know who is a Republican and who is a Democrat." 

The Commission on Judicial Conduct has ruled it "improper” for judges to make party affiliation a hiring requirement. 

Before he hired Clavin, O'Connell's first law clerk was Peter Kelly, a Republican committeeman, whom he knew from when they were both clerks in Nassau County Court. The choice was his, he said, adding, "His political leader is [state Sen.] Dean Skelos. I'm sure I talked to Dean about it because I know Dean very well for a number of years." 

Any lawyer who wants to be hired as a law clerk "has to know the mechanics" of applying for a job, said Regan, Cotter's clerk. And on Long Island, that means a working knowledge of the local Republican organization. 

When Regan learned in 1988 that newly elected County Court Judge Marvin Goodman -- with whom he had worked in the Nassau County district attorney's office -- wanted to hire him, he said he followed protocol. 

"I went to my leader [Bruce Foley in Massapequa Park] and submitted my resume," said Regan, noting that he assumed it was being forwarded to Republican headquarters in Westbury. "I submitted my resume and received approval." 

Many law clerks deny taking such steps, but acknowledge that a letter or a phone call from a political leader can help smooth the way to a job. Or that being involved in politics means they are already known commodities. 

"Politics plays a role, let's not kid each other," said Suffolk County Court Judge Charles Cacciabaudo. "However, the fact that there is patronage doesn't mean you should take incompetent people." 

Former Republican State Supreme Court Justice Thomas Stark said the politics of life on the bench were clear. 

"It was pretty much understood that the attorney who would be law ... would also be recommended by the party," said Stark, who retired in 1998 after 35 years on the bench. Stark added that he told his leaders: "You send a lawyer to me, but don't send me any political hacks." 

State Supreme Court Justice Robert Lifson said judges tend to hire from their own parties because "the salmon don't swim with the carp.” When Lifson was Huntington Republican leader, he said it was common to send applicants' names to the party's judges. 

"We always made recommendations to the various judges," Lifson said. "Some judges would take them, others would not." 

Judges, however, would prefer not to have to turn down a political leader's recommendation. "I thought I might get one, but it never came, thank God," said State Supreme Court Justice Jack J. Cannavo, who sits in Suffolk County. "These are people you know, and you hate to refuse them, you hate to disappoint them." 

Nassau Republican County Chairman Joseph Mondello said he tries "not to interfere very much in the courts." 

When he does make recommendations, Mondello said, he sends along all the resumes he has on file. "I look at myself almost as a clearinghouse," he said, flipping through a stack of letters and resumes from 20 aspiring law clerks or their patrons. 

He disputed Regan's notion that Republican leaders must sign off on law clerks and said judges aren't pressured to take his recommendations. 

"It's not expected, and I've never made it appear that it's expected," he said. "If they look at it in a stronger way [because it comes from me], that is OK with me. But it is a recommendation, which can be taken or not taken. And many times it is not taken." 

One political leader who has openly made recommendations is the Conservative Party's Pasquale Curcio, whose endorsement virtually guarantees the election of Republican candidates and offers a lifeline to struggling Democrats. 

After Paul Baisley Jr. won election to Supreme Court with Conservative support in 1997, the party sent over two people that Baisley believed they expected him to hire. "It was presented to me like you have to do this," Baisley recalled. 

The secretarial candidate "had no discernible skills or talent for it," Baisley said. The potential law clerk, Paul Hensley, seemed qualified. 

But Baisley, who said he thought he would have won without Conservative support, declined both. Austin hired Hensley the next year. 


Baisley, a Republican from Huntington, stuck closer to home for his staff. His secretary, Fredrika Zablocki, is a Democrat, but married to a Republican committeeman from Huntington Station. His law clerk, Herbert Smith Jr., is a Republican committeeman and former Huntington town attorney. He said both came recommended by the party, but with no pressure to hire them. 

Even though they have far less opportunity, Democrats also usually hire their own when they win judgeships. 

At least four of the nine State Supreme or County Court judges elected as Democrats in the two counties have secretaries who are on the party's county committee. Two law clerks to the nine Democratic judges are committee members. 

Helen Sweeney, now secretary to County Court Judge Anthony R. Corso, a Suffolk Democrat, said political connections helped pave the way to her first courthouse job in Family Court. 

"I had spoken to the Democratic town leader in Brookhaven at the time," said the Democratic committeewoman, who also noted that she was well-qualified for the job. "I assumed he would have put in a good word for me." 

Former Democratic County Court Judge Harvey Sherman, who recalled notifying his county leader when he selected his first law clerk, knew where to turn when he was looking for a spot as a clerk after he decided not to run for re-election in 1992. 

Sherman said he approached Suffolk Democratic Chairman Dominic Baranello about clerking for County Court Judge Arthur Pitts, a former Democratic Babylon Town supervisor who won his seat in a deal with Republicans. Between Sherman's time as a judge
in District and County Courts, as well as an earlier stint as a law clerk, he was just short of 20 years of service needed to boost his pension. 

"I thought it was a good idea for several reasons. One to get my time in," said Sherman, who still is Pitts' clerk. "Another, because I thought I could be of some help." 

Beyond the 180 jobs the judges control for secretaries and law clerks, the state's Office of Court Administration oversees hiring for 327 courthouse positions -- ranging from $25,000-a-year driver-messengers to top court clerks and attorneys making six-figure salaries -- that can be won without civil service tests. To fill these so-called exempt positions, the local administrative judges' offices set up panels of court personnel to review applicants for open jobs. 

The state agency reviews the panels, requires that each one have a woman and a minority on it, often selects additional people to sit on them and, in the end, can reject their hiring recommendations. It also requires that jobs are posted in the courthouse and on the Internet and sent to community organizations, schools and other potential applicant pools. 

"I think we have a very, very well-designed system that assures people are not hired for political or other reasons," said Lippman, the state's chief administrative judge. "I believe we have a system that hires the best people for the job." 

But clearly, Republicans hold great power over such hiring. 

In Nassau, for example, Supreme Court Justice Edward McCabe is the administrative judge overseeing hiring for exempt positions. His law clerk, Kathryn Driscoll Hopkins, and his executive assistant, William J. O'Brien, both members of the Republican county committee, regularly sit on the hiring panels. 

McCabe said his office follows the state's guidelines, but declined to comment further. O'Brien, who is also an attorney, said that despite the overwhelming numbers of Republicans holding exempt jobs, party affiliations play absolutely no role in his hiring decisions. 

"When I hire people for my office, I have no idea what their political affiliation is," said O'Brien, noting that many employees are promoted out of civil service ranks. "It really is, ‘What is the person's qualifications?"' 


State rules do allow employees on judges' personal staffs and those hired through the review panels to be political to a point. 

Judges' secretaries and law clerks are barred from political fund-raising, and all court employees are barred from holding elective office in a political organization, except as a delegate to a judicial nominating convention or a member of a county committee. 

By contrast, both the Nassau and Suffolk district attorneys prohibit their employees from being county committee members to minimize politicization of their offices. 

Because law clerks typically aspire to be judges, barring them from all political activity could hurt their prospects, said Gerald Stern, executive director of the Commission on Judicial Conduct. "It's out of practical necessity they be permitted to engage in some political activity," he said. 


Virginia Clavin understands well the practical necessity. Though she said she hoped she got her $79,787-a-year job researching and drafting her legal decisions for O'Connell based on merit rather than her political bloodlines, she isn't taking any chances with her future. 

Since becoming a law clerk four years ago, she has stepped up her involvement in Republican politics because, she joked, "I want to be a judge when I grow up.” 

"You always think merit is going to get rewarded,” Clavin, 38, said, "but merit doesn't always get rewarded.” 

<Back to Top>

 

Select Cast Gets Lucrative Roles

To take on receiverships, other court appointments, judges pick who they know
<Back to Top>


By Jordan Rau and Katie Thomas
Staff Writers 

W
HEN A GREAT NECK shopping center went into foreclosure in 1997, Nassau Administrative Judge Edward McCabe appointed fellow Republican Joseph Ra to run it temporarily. Ra, a Hempstead Town Board member at the time, earned $49,000 even though he parceled out much of the work to others. 

When State Supreme Court Justice Marquette Floyd needed someone to manage the property of people embroiled in long court disputes, he turned to his former campaign manager. Babylon lawyer Vincent Berger Jr. earned $19,405 to run a Central Islip shopping strip and $2,992.50 to take care of 19 acres of vacant land in Montauk. 

And when Suffolk Republican committeewoman Linda Morrison started her legal career, she knew what to do if she wanted to get court appointments and one day become a judge: She worked on numerous judicial campaigns and contributed $1,500 to judges' campaigns over the past nine years. "I think that by being politically active, it gave me a little bit more of an opportunity," Morrison said. 

In the insular world of Long Island's courts, judges routinely select a privileged assortment of their allies and political benefactors for a host of assignments, from running businesses to supervising the finances of the mentally impaired to selling property in foreclosure. 

The roster of appointees reads like a Who's Who of the political and legal elite: Republican, Democratic and Conservative political leaders, elected and appointed government officials; their relatives and their law partners; retired judges; and attorneys who support judicial candidates, either through generous contributions or hard labor on the campaign trail. 

Though state court administrators provide judges with the names of thousands of qualified potential receivers, guardians, referees and evaluators, at least 17 of the 25 most frequently appointed lawyers in the past five years had notable political affiliations."It's the old story: If you've got Republican judges and you're giving out a receivership, the chances are you're going to give it to a Republican lawyer because of the relationship," said Nassau Republican leader Joseph Mondello. "I think you'd find the same with local Democratic judges. I don't fault them for it. You gravitate to the people you've known and grown up with, and you're wearing the same uniform in the same army." 

But others say the public's faith in the integrity of the courts can be undermined by an incestuous network in which judges regularly assign work to lawyers who boost their careers. 

"Just the appearance of impropriety is so strong and it works so insidiously that I think we have a very big interest in taking that out of the whole equation," said Barbara Reed, associate executive director of the Fund for Modern Courts, a Manhattan-based nonprofit court reform group. 

Supreme Court records, however, show that when appointing lawyers, Republican, Democratic and Conservative judges on Long Island all share a reluctance to look beyond the small circle of people with whom they are already familiar from the overlapping worlds of law and politics: 

Judges frequently turn to those with deep political roots for positions that carry the greatest potential for large earnings, managing business affairs. John Ryan, the counsel for the Nassau Republican Party, has served as a receiver five times, more than any other single lawyer in State Supreme Court in Nassau, according to an analysis of five years of court records. Ryan recalled that one case earned him more than $100,000. 

"I happen to be counsel to the Republican Party. I happen to be lawyer for a lot of different types of people," Ryan said. "People will appoint people that they know, or in a context of a person they feel has an ability to do something ... it's important that you can rely on the person you've appointed." 

Lawyers with political associations and retired judges are among the top earners in a variety of other court appointments to act as referees and guardians. Suffolk Democratic leader Dominic Baranello has been appointed in 74 such cases -- all but one assigned by a judge from his party. Baranello said the cases mostly involved selling property in routine tax foreclosures and earned him between $250 and $500 per case. 

"I never went to anyone asking for anything," Baranello said, "but they obviously decided to choose people they know." 

Some attorneys who receive court work also donate money to judges' campaigns -- a legal but ethically murky situation that the American Bar Association is trying to discourage nationwide. Anthony Capetola and Frank Doddato, Williston Park law partners who have donated $24,000 to Republican judges, have served as receivers a combined total of seven times. Attorneys like Capetola insist money does not purchase influence. 

"The judges I contribute to, I grew up with in this business. We were adversaries or co-counsels defending people together," Capetola said. "I give because of the personal relationships or affiliations over the years." 

While Republicans often dominate appointments in Nassau County, where their party reigns supreme, Suffolk lawyers with strong connections to the Conservative Party are routinely hired in a county where judges often rely on that party's support to get elected. Steven Schapiro and Perry Reich, the former lawyers for Conservative leader Pasquale Curcio, have been appointed as receivers 19 times combined from 1994
to 1998; in that same time period, they have earned $83,927. 

"I'm not going to say it didn't help, but it didn't hurt," Reich said about his relationship with Curcio. Since he and Schapiro had a falling out with Curcio last year, Reich's firm has gotten only one receivership. Kenneth Auerbach, Curcio's current lawyer, and Auerbach's law partner, Rudolph Cartier, have also received appointments. 

The tasks that court-appointed lawyers perform carry heavy responsibilities, and they also sometimes bring sizeable financial rewards. 

For example, lawyers in receivership cases, the most lucrative of the appointments, take over the day-to-day responsibilities of running businesses, rental properties, shopping centers and hotels that are either in foreclosure or in the midst of heated court battles between owners. When attorneys are appointed receivers, they become legally liable for safeguarding the property, and must take out insurance bonds. In return, a judge authorizes receivers to pay themselves up to 5 percent of the
money businesses earn under their care. Their fees can vary from a few hundred dollars to hundreds of thousands of dollars on occasion, depending on the size of the property and the amount of work. Receivers can also hire themselves as lawyers for the properties. 


Newsday Photo/David Pokress
Joseph Ra earned $49,000 to run a shopping center, but parceled out much of the work.

"These are not schlock lawyers. These are guys who do a good job," Mondello said. He said he would hire Ryan "in a New York minute," and also praised Ra, noting that Republican leaders recently appointed Ra as Hempstead's town attorney. "We'd be pretty stupid if we put someone in there who we didn't think was good," Mondello said. 

Court records, however, show that Ra did not win universal plaudits for his work as a receiver. After McCabe appointed Ra in the Great Neck shopping center foreclosure case, Ra hired a management company to run the property, paying it 5 percent of the incoming rent. He also hired an outside lawyer to handle the shopping center's legal affairs, paying the attorneys $8,000 out of the rent, as is customary in these cases. 

When the case drew to a close a year and a half later, Ra asked the judge to set his fee at close to $60,000, the maximum allowed by law. The plaintiffs protested, saying Ra hadn't done enough to warrant being paid so much. "The receiver has delegated the very same duties he was appointed to perform," James Wicks, the lawyer for AFP Nine Corp., wrote in court papers. 

McCabe ultimately set Ra's fee at $49,000, which was also paid out of the rents. 


McCabe, who is a close Mondello ally, acts as a clearinghouse for receiverships in Nassau, according to sources. Neither Ra nor McCabe returned several calls for this story. Mondello said he "stays clear” of recommending which lawyers McCabe or other judges should appoint. 

A number of other prominent Republicans have also been appointed receivers. Southampton GOP leader John Czygier earned $8,870 to run a Shinnecock Hills co-op hotel in foreclosure for two years. Other receivers include Howard Pachman, a Republican who is the former Suffolk County attorney; Gregory Peterson, the former Hempstead supervisor who now runs Nassau's Off-Track Betting Corp.; Frank Gulotta Jr., the brother of Nassau County Executive Thomas Gulotta and now a judge; and Nassau legislators
Salvatore Pontillo and John Ciotti. 

"Certainly I think having a political background gets my name around," Czygier said. But he said the receiverships often paid less than his customary attorneys' fees and can be such headaches that in one case "I thought, ‘Oh man, is this judge doing me a favor or not? Who did I get mad to get this?"' 

Judges say they regularly turn to familiar faces because it is so difficult to find qualified people for these cases. 

"It's a tedious process that just a Tom, Dick or Harry doesn't do well," said Floyd, the Suffolk judge. He said many of the lawyers he regularly appoints are ones he worked with on Suffolk bar committees. 

"It's like saying, ‘I remember you,"' he said. "These are people who befriend you as a colleague and remain your friend even as you get on the bench." He said politics "probably plays a minor role" in his appointments in comparison to a lawyer's ability. 

Floyd said that long before Berger managed his campaign, Berger had recommended Floyd to sit on the bar's board of directors. Floyd said he did not know Berger's political affiliation. 

"He's really not political. He'll work for judges on a campaign if he likes them, but he's not a political animal," Floyd said. 

In fact, Berger, who did not return telephone calls for this story, was considering running for Suffolk Republican leader in 1988, the same year he was helping Floyd's campaign. Before that, he had helped John Copertino win a State Supreme Court seat and Ernest Signorelli win the Suffolk Surrogate Court seat. Berger also coordinated A. Gail Prudenti's successful 1995 campaign for Surrogate Court, which deals with wills and estates -- cases that also require many court-appointed lawyers. All those judges are Republicans. 

While most court-appointed work rarely pays as handsomely as the best receiverships, judges appoint politically connected lawyers to perform a variety of other tasks. They can be brought in as referees, for example, to sell foreclosed property. They can be hired as evaluators to examine the assets of the estates of the mentally impaired and to help the judge decide if a guardian is needed. This work is rarely glamorous, even for some of the people who make the most money through court appointments. 

Beth Ross, a Great Neck lawyer who says she is not involved in politics, has earned $40,000 on average each year for her appointments as a guardian and an evaluator, usually making between $2,000 and $4,000 a case. 

"One guy, he lives in Great Neck, you couldn't walk into his house, it was so full of trash. He was living on the porch. His house was condemned. There were close to 100 cats there," Ross said. "Those are the kind of appointments I get." 


Doug McNally, a Northport Republican who earned $173,018 from court appointments in the past five years, acknowledged he has received some smaller jobs as a referee in foreclosures because of his political background. "I honestly do not see anything wrong with it as long as the person you appoint does the job," he said. 

But he said he is hired more often for his experience as a guardian; McNally teaches novice guardians and has written articles for one of the leading manuals in the field. 

"I see the political heavyweights who have taken the course," he said. "My experience is that many of them leave the area of guardianship rather quickly. It is a tremendous responsibility." 

Still, there are hundreds of attorneys who vie for these less lucrative jobs, including some with political credentials. 

State Sens. Kenneth LaValle of Port Jefferson and James Lack of East Northport, as well as Brookhaven Town Board members Edward Hennessey and John Jay LaValle, all earned between $2,050 and $12,600 in the past five years. All are Republicans, and John Jay LaValle, who earned $2,050, said he started taking these cases before he was elected, while Lack, who earned $2,500, said he was selected on merit. The others did not return calls seeking comment. 

The state Office of Court Administration compiles a list of lawyers approved to be appointed based on various criteria, but judges have wide leeway in whom to select. 

Supreme Court Justice Frank Rossetti, a Democrat whom the Appellate Division assigned to handle all guardianship cases in Nassau, said he keeps his own list because there is only a small cadre of lawyers who have proven themselves dedicated enough to take these cases. 

"Some of them do it just to get a fee," said Rossetti, adding that he does not reappoint those attorneys. Both he and State Supreme Court Justice Patrick Leis, who was assigned to handle guardianships in Suffolk, said they try to balance out the cases for each lawyer by alternating between wealthy and destitute clients. 

"They're not getting rich on guardianships. They're getting poor," Leis said. Most of the lawyers, he said, "are in this field because they care." 

Leis, an enrolled Conservative who became the first of a string of Conservatives to win seats on the bench, said he makes all his appointments based primarily on merit. But he acknowledged other factors play a role. 

For instance, he said he appointed Jeffrey Arlen Spinner, whom he knew through party leader Curcio, to seven evaluator jobs because "I thought he was also an honest man. He was struggling in private practice. I thought it would be a good deed." Spinner has earned $20,310 from nine court appointments. 

Spinner's career then got an even greater boost: After changing from a Democrat to a Conservative, he was appointed a District Court judge in 1997 and then nominated for County Court even before he was up for re-election. He was elected to that post last year. 

Long Island's heavy reliance on politically experienced lawyers has created entwined and sometimes deeply complicated relationships in which the lawyers are in a position to help a judge's career at the same time they are being employed by the judge. 

For instance, Joseph Kunzeman, a retired Appellate Division justice who has made an average of $52,000 a year on guardianship work, has also served since 1996 on a panel that recommends Supreme Court justices to the governor for promotion to the Appellate Division. Kunzeman said none of the judges for whom he has worked has been evaluated by the committee. 

"If that happened, I would disqualify myself," he said. 

A more frequent potential conflict, however, arises over campaign donations. Even though judicial ethics rules prohibit judges from knowing who gave to their campaigns, Morrison, the attorney from Patchogue who has been active on many judges' campaigns and donates money, said she believes it helps her stand out. 


"We have so many attorneys [in Suffolk County], I want to know that the judge is comfortable with me and I'm comfortable with him," said Morrison, who made $22,755 from court appointments between 1994 and 1998. 

While judges insist such contributions don't factor into who they appoint, a 1998 American Bar Association task force report frowned on lawyers taking work from judges to whom they had given money, saying it undermined the judiciary's reputation for integrity. "These appointments ... may result in substantial income for the lawyers appointed," the report said. "Abuses occur." 

The ABA has recommended that each state set its own rules restricting judges from appointing large contributors, but New York has yet to act on the proposal. 


Few lawyers involved, however, think there is anything wrong with the influence of politics in the way court business is apportioned. 

"Generally, nobody is being harmed by it. Usually they're competent people, often former judges. It can be a way of saying, ‘Thanks for all the time you've spent in public service,"' said Stanley Harwood, a former Nassau Democratic leader and retired Supreme Court and appellate judge who has been appointed to three receiverships, one paying $41,200. 

"There are certain things parties have to do to make it attractive for people to remain active in politics," Harwood said. "What they do is hold out the prospect that some good work will come your way." 

Andrew Smith contributed to this story. 

<Back to Top>


GOP Rivals Fail to Ally

Democrats turn to ex-judge

<Back to Top>

By Edward W. Lempinen and Katie Thomas
Staff Writers 

A
LAST-MINUTE effort to put together an unprecedented alliance of Democrats, Conservatives and Independence party members for a Supreme Court nominee fell apart last night, and Democrats turned to respected former Justice Alfred Lama to fill the slot in their judicial slate.

"I don't know what's been done in the past. I do know Republicans are united behind our judicial candidates … We believe we're dealing from a position of strength."

--Suffolk GOP leader
Anthony Apollaro

Lama, who has run twice and lost in recent years, became the party's choice after Independence Party leader Frank MacKay was unable to pull together support for Thomas Whelan, the former Babylon Town Attorney driven from office in 1989 after a high-profile drunk-driving conviction. 

Whelan had already won the Independence and Conservative lines at party conventions Wednesday night. The effort to build the alliance showed how far the three parties might go to counteract the dominance of the Republican Party in judicial elections. 

The Democratic drama capped a week of bargaining and infighting as the Conservative and Independence parties sought to win support for their judicial candidates by offering to cross-endorse the slates assembled by Republicans and Democrats. 

Republicans, however, steadfastly refused to deal. 

Political strategists said that marked a sharp turn from recent years, when Conservatives won influence in judicial and other court appointments in exchange for giving their ballot line to GOP candidates. 

But this year, some said, the dynamic has changed: Suffolk Conservative leader Pasquale Curcio is weakened in his own party, and former Suffolk Republican leader John Powell is out of office and fighting criminal charges. 

"I don't know what's been done in the past," said Anthony Apollaro, who this week became the new Suffolk Republican leader. "I do know Republicans are united behind our judicial candidates … We believe we're dealing from a position of strength." 

Another Republican official, who asked to remain anonymous, put it more bluntly: "The logic of this is that we can't let these minor parties keep telling us what to do." 

After Whelan won the smaller parties' endorsement, however, some Democrats apparently were willing to listen. 

Whelan's name emerged late yesterday, without warning. Earlier this week, Nassau Democratic leader Thomas DiNapoli and Suffolk leader Dominic Barnello released a list of candidates that made no mention of the former Democrat who later served as secretary of the Suffolk Independence Party. 

The Democrats went into last night's convention with a list of just eight candidates after Southampton town Justice Deborah Kooperstein withdrew. 

From Nassau: District Court judges Elaine Jackson Stack and Claire Weinberg; William LaMarca, Stephen Moser and Milton Falk, attorneys in private practice. From Suffolk: County Court judges John J.J. Jones and Arthur Pitts; and District Court Judge Stephen Braslow. 

Still, with party judicial conventions scheduled this week, Independence and Conservative officials have pressed Republicans and Democrats for cross-endorsement deals that could give one of their own candidates a strong position on the November ballot. 

Republicans have dominated judicial races in recent years, but they have often needed the Conservative line to win. 

That gave Curcio considerable bargaining power, though critics charged it diminished the quality of court personnel. And some Republicans and Conservatives were outraged last year when Curcio's endorsement helped Democrat Leonard Austin win a Supreme Court seat. 

At their convention in Patchogue last night, Republicans designated nine Supreme Court candidates, all found qualified by a bar association review panel. 


From Nassau: incumbent Supreme Court justices Edward McCabe and Anthony Marano; and District Court judges Anthony Falanga of East Meadow, Thomas Feinman of Syosset, and Joseph Covello of Plainview. From Suffolk: District Court judges Daniel Loughlin of Babylon and Hertha Trotto of Islip; Family Court Judge William Kent III of Islip; and Lloyd Harbor Republican Stephen Hackeling, presiding officer of the Suffolk legislature. 

At the Conservative convention Wednesday, Nassau forces joined by an anti-Cucio bloc from Suffolk endorsed all of the Nassau Republican nominees and Kent and Hackeling from Suffolk. 

But they passed over Loughlin and Trotto. Instead, they tapped Smithtown Conservative Cheryl Zimmer, law clerk to Supreme Court Justice H. Patrick Leis, and Whelan, an Independence Party member already nominated by his own party. 

Conservative Party officials said that among the Islip candidates, Kent, 61, was chosen over Trotto, 50, because he's closer to retirement, which would open a new judicial slot. And Loughlin was passed over because Babylon Republican leader Frank Aprea did not return Conservative phone calls in time to negotiate for him, officials said. 

Republican sources insisted neither Loughlin nor Trotto would be hurt by the lack of a Conservative endorsement. Loughlin has won the Independence line. 

But some said Trotto could be vulnerable, especially if the Republican turnout in Nassau is dampened by dissatisfaction with budget problems under County Executive Thomas Gulotta. 

Conservatives face a risk, too, said party veteran Michael O'Donohoe, the Suffolk commissioner of jurors. 

"The gamble we're taking," he said, "is that if a Republican can win without our line and without the Independence line, then we're pretty much out of business." 


<Back to Top>

  


Verdicts Vary on LI's Judges

Lawyers, data point to range of behavior

<Back to Top>
 

By Jack Sirica
Staff Writer 

O
N THE FIRST floor of the Nassau County Court building in Mineola, Judge Paul Kowtna always seemed to have a trial going last year. But across a walkway and up a flight of stairs in the building's west wing, Judge John Galasso rarely needed a jury. 

One offered such stiff sentences during plea bargaining that defendants usually would rather take their chances at trial. The other proposed such light sentences that defendants jumped at the deals. 

On the sixth floor of the Cohalan Court Complex in Central Islip, Acting Supreme Court Justice Joseph Farneti rode herd on his calendar of divorce cases, quickly resolving prickly property settlements and custody disputes. Four floors down, Justice Paul Baisley Jr. was so slow in issuing decisions that one lawyer joked, "You hope to get a decision while you're still alive." 

Four courtrooms, four stories that illustrate a central fact of life in the Supreme and County Courts throughout Long Island: Litigants and attorneys can expect radically different experiences merely because their cases are assigned to one judge, instead of another across the hall. 

"When I get a case I know the judge I'm going to get will decide the results. But really it should be much more consistent than that," said one senior criminal defense attorney in Nassau. "You should be able to get justice in any courtroom." 


All too often, according to court statistics and lawyers who practice day after day before local judges, litigants encounter a sort of courthouse crapshoot, where all bets are off on whether the person on the bench has the temperament, scholarship and work ethic for the job. 

"When we have a good judge here, it's that we're just damn lucky," said another longtime Nassau criminal attorney. "It has nothing to do with the decision-making process for making judges." 

The judges all get their jobs in the same way: They dutifully make their way up the political ladder, finally getting their party's nod to become judges. In some cases, though, they land ill-prepared to wield the tremendous power of the office, from deciding how long someone goes to prison to ruling how much they deserve as compensation for medical malpractice. 

The quality of judges on Long Island "varies widely," said Thomas Maligno, director of Public Interest Development at Touro Law School. 

"They are chosen as part of a political process, and for good or bad, that process does not take into account what it takes to be a good judge," said Maligno, the former director of Nassau Suffolk Law Services, which represents poor people in civil cases. 

The wide discrepancies in judicial performance affect jurors, attorneys, and above all litigants whose rights, personal freedom and property are at stake. 

The differences can determine how quickly an acrimonious divorce is resolved or an innocent person is cleared; the size of the attorneys' bills or whether a witness is berated in court or treated with respect; and whether jurors sit for hours in waiting rooms as cudgels to force settlements, or sit in courtrooms engaged in weighing the facts of cases. 

During the past year, Newsday has done more than 1,200 interviews with the attorneys who practice before the judges the most, and know them best. The reporting, which included hundreds more interviews with judges, lawyers and court personnel and an analysis of court productivity statistics, shows: 

A criminal defendant's odds of striking a plea bargain or having to go to trial vary dramatically from courtroom to courtroom. Last year, for example, Kowtna presided over 24 trials, the second-highest number in either county, while Galasso presided over 6 - the second lowest of anyone in the court full time. At the same time, Kowtna took only 174 pleas while Galasso took 275. 

Supreme Court Justice Ira Wexner, the supervising judge of Nassau County Court, defended such disparities. "We're all individuals," he said. "You can't tell a judge this is what your commitment has to be. If Judge Galasso is a little more lenient than Judge Kowtna, I don't find fault with either." 

The efficiency with which cases move through the system varies widely from courtroom to courtroom, and even from county to county. In County Court, Suffolk judges closed out 82 percent of their cases last year, while Nassau judges closed 94 percent. 

"It becomes somewhat obvious that some judges are perhaps tired," said Supreme Court Justice Patrick Henry, who supervises Suffolk County Court judges. " ... You've got old warhorses that have worked hard over the years and are slowing down." 

In Supreme Court, the disparity is also stark: Justice Joseph DeMaro ended last year with only 7 percent of his pending cases having dragged on longer than the state guidelines say they should. But 27 percent of the cases before Justice Bruce Alpert, who also sits in Nassau, missed the state goal. Attorneys routinely note Alpert's frequent smoking breaks and shorter days, while they marvel at DeMaro's diligence. When he finishes a case, he simply appears in his shirtsleeves in the well of the giant assignment courtroom in Mineola to await his next case."The message is: ‘We try cases here; we're working,"' one attorney commented about DeMaro's habit. 

In civil cases in Supreme Court, speed, cost and above all, how and when a case is settled - as 90 percent are - often depend on the skills and philosophy of the particular judge. Henry, for instance, said that when it comes to resolving a case without a trial, he still considers himself "in the learning aspect ... You never really know when you should urge someone to accept the offer." 

But Justice Robert Doyle, considered by many Suffolk lawyers to be an expert settler, said sending cases to trial ties up "a judge, a jury ... I'll call the carrier ... I'll say, ‘Give me another 2,500 bucks. I want to settle this case ... "' 

The disparities among judges cost taxpayers, too: Judges earn the same salary - $136,500 - no matter how many days they work. Looking just at what are called judge days - a day when a judge reports but doesn't necessarily work a full day - the range is striking. While some known as hard workers routinely put in 220 to 230 days each year, or 44 to 46 weeks, others are averaging 180 to 190 days, a difference of as much as 10 weeks in the courthouse. 

"What am I supposed to do, sit in the office and watch the four walls?" said Suffolk County Court Judge Charles Cacciabaudo, who worked 200 days last year, while his colleague Judge Gary Weber worked 222. In the State Supreme Court, Peter Fox Cohalan clocked 229 days, while Howard Berler worked 180 - a difference of 10 weeks. "I can't explain it," Berler said, calling himself hard-working. "I don't know that I work any more or less than I did 27 years ago." 

Local and state court administrators acknowledge that some judges need help, but officials have shown little ability or inclination to address the problems beyond switching judges to less attractive assignments or limiting their vacations to less desirable times of the year. 

"You have to remember that each of my judges is an elected officer," said Supreme Court Justice Edward McCabe, who oversees all the state courts in Nassau. 

Overall, court administrators defend the job that their judges are doing. 

"I'd be the first to say that the quality of the bench is not even, as in any other profession or in life," said Jonathan Lippman, the chief administrative judge of the State of New York. "There are outstanding judges, there are adequate judges, and there are some judges who unfortunately are not up to the task." 

But "on balance, I think the quality of the bench is quite high. I firmly believe that this is a judiciary that the public can be very proud of," he said. 

Among judges, attorneys and those who've studied the judicial system, there is widespread agreement that three qualities are fundamental to good judges: temperament, scholarship and work ethic. 

Newsday built its performance portraits of the 79 State Supreme Court and County Court judges serving on trial courts through a wide-ranging telephone survey of lawyers who, according to records from the State Office of Court Administration and the individual court clerks, have tried cases before the judges during the past five years. 

The survey yielded nearly 1,200 interviews. Lawyers were asked to respond to standard questions about the judge's temperament, scholarship and work ethic and were assured anonymity in exchange for open assessments. 

In part, the results showed that attorneys' assessments of judicial performance are, not surprisingly, subjective. Some judges whom prosecutors criticized as too lenient in sentencing were seen as fair and compassionate by the defense lawyers. Less frequently, a plaintiff's attorney who lost a civil case would brand the judge as pro-defense. But the defense considered the judge to have been fair. 


"Everybody has a very subjective view," McCabe said. "If a lawyer loses a case he thinks he should've won, the judge is a bad judge. If he wins, he's a Cardozo." 


Still, the lawyers constitute a credible panel of evaluators of judicial performance, many agreed. 

"They see you on a daily basis, these lawyers," said Supreme Court Justice Jack Cannavo, who sits in Central Islip. "It's just like a reputation a person has in his community. In most cases it's accurate." 

As Harvey Levinson, the chief assistant District Attorney in Nassau County, put it: "If you ask any good nurse at a hospital, he or she will tell you which doctor to avoid." 

Indeed, there was a significant level of agreement among attorneys about the attributes of particular judges - regardless of whether the lawyers had won or lost their cases. 

For example, Manhattan attorney Arthur Lichtman, who represented a plaintiff who lost a dental malpractice suit this year in Suffolk before Supreme Court Justice Harry Seidell, nonetheless praised the judge for his "patience." 

"He wasn't just doing his job by the numbers," Lichtman said, echoing many others. "He really felt for both sides. Even though I lost the case, I felt my client received a very, very fair trial." 

But both prosecutors and criminal defense attorneys described Nassau County Court Judge Daniel Palmieri, now an acting Supreme Court justice, as "irascible."

Several attorneys referred to him as "a little Napoleon" on the bench, with one saying "he has no judicial temperament, and he's not open-minded." 

Palmieri took exception to the characterizations. 

"I don't believe I have ever misspoken or demeaned an attorney in any way," Palmieri said. "I try to be very respectful and careful about what I say." 

Although Long Island judges come from a variety of backgrounds - among them are former prosecutors, private attorneys and attorneys for local governments - lawyers complained they often lack the extensive courtroom experience to have developed the even disposition, legal knowledge and courtroom management skills that they need to be effective judges. 

"I see an awful lot of judges coming to the bench from the County Attorney's office, the Town Attorney's office and other political experiences without that experience," said Frank Giorgio Jr., a Syosset attorney and the immediate past president of the Nassau County Bar Association. 

"They are insensitive to the problems associated with trial practice on the part of the attorneys for the parties," Giorgio said. 

"If you have been a trial lawyer, when you first take the bench you're comfortable," said Cannavo, a former Suffolk assistant district attorney. "It's not fair to the taxpayers to have a judge on the bench who does not have sufficient experience - who has to learn while he's on the bench." 

Indeed, the lawyers in the survey reported significant misgivings about several judges who were recently elected who lacked extensive backgrounds in trial work. 


Echoing other attorneys, one longtime matrimonial lawyer said Supreme Court Justice Denise Molia, a former Brookhaven deputy town attorney elected last year, routinely rushes cases in an apparent effort to meet court productivity goals - pushing for case settlements, for instance, before property appraisals are complete. 

"Justice is being denied because it's rushed on people, and they're not prepared," the attorney said. "... She is blindly adherent to a bunch of rules with no logic." 


Another attorney found Molia to be "short-tempered and snappish - almost entering the bench with an angry attitude." 

Molia said through a spokesman that she was working to clear up a backlog she inherited when she took the bench in January. 

In any proceeding, an adept judge generally employs good temperament, scholarship and administrative skills. Not the least reason the qualities are important, lawyers and judges say, is that they reinforce litigants' trust in the fairness of the proceedings and the courts. 

"You can't display animosity toward one side or the other," said Supreme Court Justice Andrew DiPaola, a Nassau judge who sits on the Appellate Term. "You have to exude that air of even temperament to the attorneys so they know when you look at them we're here to do a fair job." 

Attorneys want to feel as if they've been heard. Steven Costantino, a general practice lawyer in Copiague, recalled arguing an automobile accident case before Supreme Court Justice H. Patrick Leis III. Leis, a former Suffolk assistant district attorney and County Court judge, was new to negligence law. 

"Even though it was one of his first motor vehicle cases, he sat there for two hours, and he took the time to try and resolve that case, and he listened," Costantino said. "I was impressed. This judge has got a grasp of the law, and he is willing to sit there and listen." 

Temperament also can affect a judge's ability to settle a case before a jury is empaneled, and the litigants and the court system incur the often considerable costs of a trial. A judge who is perceived as even-handed often will have success in getting the parties to follow his or her settlement recommendations. 

"If the attorneys have trust in you, if they think you're fair-minded, they'll be more open with you - they'll say, ‘Judge, what do you think this case is worth?"' said Cannavo. "Very often what you recommend has a substantial impact if you're known to be fair-minded. If you develop a reputation as favoring plaintiffs, ... will resist anything you say." 

A judge's expertise in the law - or at least a willingness to perform an adequate amount of legal research when he or she is in unfamiliar territory - not only inspires confidence, but it speeds a trial. 

Attorneys complained repeatedly that Nassau County Court Judge Donald DeRiggi, a Republican elected to the bench after party leaders felt his popularity as mayor of Glen Cove had begun to wane, appears to be timid in his rulings. 

"I think he's afraid of making the wrong decision, and he lets people go on and on," said one attorney. "I think that makes things more cumbersome. He creates work. He will want a memo on the law when it's a clear issue." 

DeRiggi said he's knowledgeable on the law and makes good rulings, chalking up the comments as the complaints of passionate advocates who "happen to be wrong." 

Attorneys and judges said that through hard work and experience judges can improve. Supreme Court Justice Lester Gerard, who sits in Suffolk, said it reminds him of what his judo teacher told him years ago about mastering the sport. 

"What he said was you could learn about 90 to 95 percent in a few years, and it would take you the rest of your life to learn the other 5 percent," Gerard said. "It now comes to the refinement." 

Finally, although judges are expected to manage their caseloads, the line can be faint between efficiency and trampling on the rights of either side in a case. 

"You have to balance," said Supreme Court Justice Alan Oshrin, who sits in Suffolk. "You're dealing with lawyers keeping balls up in the air ... When does procedure interfere with the rights of the litigants? We're not separate. We're part of the legal community." 

A key issue in many medical malpractice cases, for instance, is the availability of expert witnesses such as physicians. Judges frequently deal with requests by one side or the other to delay a trial because a witness has a scheduling conflict. 


But Supreme Court Justice James Catterson, who was elected in 1998 after serving as an assistant U.S. attorney and as a deputy Suffolk County attorney, has angered lawyers by forcing them to proceed with trials even when their witnesses aren't available, sometimes even fining the attorneys. 

"He's intransigent with respect to any downtime," said one attorney. "It's impossible to try a malpractice case before him. He uses sanctions as a sword ... he follows through on it. I think one of the problems is he was never a trial attorney." 

However, a Manhattan attorney who appeared this year before Catterson said the judge was in the "top 1 percent of judges I know in the state system" - largely because of Catterson's no-nonsense approach to scheduling. 

"He was organized when the case was referred to him," said the attorney. "If you have a trial before Judge Catterson and you're finished with a witness at 1 and you have no one for the rest of day, he's irate; he really wants to fill up his day." 


Catterson declined to comment. 

In the end, whether a medical malpractice case in Catterson's courtroom, a personal-injury settlement in DeMaro's, a murder trial in Weber's or a drunken driving plea in Galasso's, it's the judge who sets the tone, whose knowledge, demeanor and dedication are the difference between justice and prejudice. 

"Why do people come to court?" said Supreme Court Justice Melvyn Tanenbaum, who has sat on the court in Suffolk for 16 years. "It's because they've failed to resolve normal human disputes. They need help ... What we have evolved here is a system where the function of the judge is to uphold the Constitution and the laws and to preserve the rights of the individual. Do they just apply the law, or do they do what is right? That requires intellect, mature judgment, honesty, independence." 

And while finding judges who embody all those qualities is not easy, the lawyers conceded, it is by no means impossible. 

"You want somebody who is sensitive to victims and compassionate to defendants," said Fred Klein, the chief of the major offense bureau of the Nassau District Attorney's office. "They should be confident in making decisions and very knowledgeable about the law. 

"You can find all of this in one person, and it is not unreasonable to ask that a judge have a certain degree of expertise in these areas ... should be reserved for a select few. And it shouldn't be a reward for political participation." 

<Back to Top>

  

 

Cool and Calm? Not Always . . .

Temperament can be good, bad or ugly

<Back to Top>
 

By Jack Sirica and Katie Thomas
Staff Writers 

S
UFFOLK COUNTY COURT JUDGE Anthony Corso's angry outbursts are legendary to the attorneys who frequent his Riverhead courtroom -- so much so that old hands no longer take the explosions personally. 

And that is just as well because, to Corso, the screaming is a matter of self-preservation: A doctor once advised him that he was heading for an ulcer unless he learned to release his emotions. 

"I blow up; I don't hold it in," Corso said, saying the lawyers know he doesn't let it affect their cases. " ... I don't hold it against attorneys." 

But State Supreme Court Justice Edward McCarty said screaming in a courtroom, no matter what the circumstances, undermines justice. 

"I've never raised my voice in 15 years on the bench, and I do not intend to," said McCarty, who sits in Mineola. "It only raises the climate of confrontation. It's like yelling at your child. You reason with your child." 

Corso and McCarty's behavior on the bench represents the extremes of the one quality that judges and lawyers say is more important than even intelligence and hard work to a smooth, fair outcome for a court case -- judicial temperament.

"Everything else fails if they don't have judicial temperament," said Robert Sale, a longtime criminal defense attorney in Nassau. "You'll have Lance Ito if you lose control.” 

When lawyers, judges and legal scholars speak of temperament, they mean more than just a judge's tone of voice. It is paramount because they are essentially talking about judgment -- the instinct that allows a judge to know when to talk and when to be quiet, when to act and when to hold back. 

Patience, even-handedness and the ability to deftly control a courtroom are crucial not just to making litigants and jurors feel comfortable, but also to working out settlement agreements, which can save costly trial time. Good judicial temperament means giving lawyers appropriate adjournments, reasonable trial dates and access to the judge, all without retarding the progress of a case. 

"You get a lot more done with honey than with irritating people," said Nassau County Court Judge Frank Gulotta, who is known for his even temperament. "If you have people antagonistic toward one another, you won't accomplish what you might otherwise." 

A judge lauded for his good temperament, such as Supreme Court Justice Harry Seidell, seeks to control the courtroom more by gaining the trust of the lawyers than by bullying them, attorneys said. He listens to their arguments carefully and respectfully, never letting jurors know his feelings. 

"Juries don't know what's going on, and if a judge is chastising one attorney as opposed to another, they may think of him [the attorney under criticism] as wrong," said Michael Devine, an attorney who won a negligence case before Seidell earlier this year in Riverhead. "Or they may have sympathy for him. It may go any way." 

There are no statistics to measure temperament, of course. But interviews with hundreds of attorneys showed differences in temperament among judges across the Island can be dramatic. Sometimes it's merely a matter of style. Supreme Court Justice Peter Fox Cohalan addresses lawyers as "learned counsel," while Suffolk County Court Judge Gary Weber offers them bagels and coffee in his chambers and jokes during trials. 

But a tour of several courtrooms also reveals judges who are openly bored, sarcastic and tyrannical; patient, amiable and compassionate; open-minded and willing to hear out the attorneys on sentencing or settlements; or brusque and ready to rule after they have heard just a couple of minutes of legal argument. 


"We have a saying on the trial bar," said one personal injury defense attorney. "It's one thing to be stupid. It's another to be stupid, rude and arrogant." 

Corso, many admit, is a sometimes contradictory character. 

He is, according to the lawyers who appear regularly before him, one of the few County Court judges who regularly show compassion for defendants, or who will make unpopular rulings. 

For example, Corso threw out drug charges that could have sent a man to prison for life after prosecutors rested their case. 

"I don't think another judge in the building would have done that," said one lawyer. 


Yet no one ever quite knows when Corso, a former Democratic town attorney in Huntington, will blow up in the process. Some say they believe it has little effect on the case. 

"He's blown up at me a million times, and then he'll put his arm around me," said a longtime defense attorney. 

Others say the outbursts have more than just a passing impact; they stop discussion of the case cold, lengthening the time to a resolution. 

"The mercurial temperament had a definite impact on disposing of cases," said one experienced attorney who has practiced before Corso. 

In the matrimonial courtroom he runs in Supreme Court in Nassau County, Justice Anthony Parga sees many litigants who are at each other's throats. But often, according to attorneys, Parga adds to the tumult, especially during case negotiations. 

"Do I yell in here?" Parga said in an interview in his chambers. "Yeah. But only so I can make myself be heard. Judges are human beings, too. Sometimes you get caught up in it." 

Some attorneys who appear before Parga said he can be unpredictable, pleasantly overseeing the courtroom one day but becoming disagreeable and unreasonable the next. 

"I find him to be short-tempered for no discernible reason," one lawyer said. "It is my belief that the matrimonial bar has become too adversarial as it stands and that it doesn't need the injection of more stress." 

Others characterized Parga's outbursts as a clumsy attempt to cut to the heart of a case. 

"His screaming and yelling doesn't bother me," said one lawyer. "He's not directing it at the attorney; he's directing it at both attorneys to get the case done." 

Sometimes, even though attorneys feel they get a fair trial or respect a judge's intellect, they simply dislike appearing before someone who is quick to berate them. 

Supreme Court Justice James Gowan, who hears cases in Suffolk, is known for his exacting standards of legal scholarship and long hours. 

But he also has a reputation for the bashing of attorneys he believes are unprepared. When an attorney from out of town asked a court officer for directions to Gowan's courtroom, he was told "Follow the trail of blood." 

"I usually get along with judges, but I just found him overbearing, cocky, definitely condescending and difficult to deal with," said one longtime civil attorney. "If I have to go before him, I know I'm not going to have a good time. He's just needlessly overbearing and difficult." 

Gowan did not respond to requests for comment. 

Many lawyers had similar complaints about Supreme Court Justice James Catterson, who was elected last year. While complimenting Catterson's diligence, the lawyers described him as "harsh." They say he reacts with "undue bursts of anger on minimal things." 

Catterson, a former assistant U.S. attorney and deputy Suffolk County attorney, "just hasn't learned to work with other people," said one lawyer. 

"He was one of the freshest and most impudent judges that I came across," said an attorney who has been practicing for many years. "It's just that he would insist that he was right even when I know he was not... He's got a nasty disposition for a young guy, and he flashes it a little too often." 

The lawyers have been particularly upset by what they term Catterson's inflexibility about the scheduling of expert witnesses such as physicians during malpractice trials. They said Catterson will push a trial ahead, sometimes even fining lawyers, if witnesses cannot appear when Catterson was expecting them. 


Lawyers have complained to Suffolk's administrative judge. 

"Any of the problems that members of the local bar have encountered are being worked on so that everyone can be treated with dignity and respect," said Surrogate Judge A. Gail Prudenti. "We are all working on issues that have to do with timely resolution of cases marked ready for trial." 

Catterson declined to comment. 

Testiness isn't the only fault that lawyers find with judges' temperament. Some judges exhibit quirks that trouble lawyers. 

Many, for instance, praised Weber's unpretentiousness, saying the quality helps him to relate to jurors and defendants. But one attorney noted with some concern that Weber, the Suffolk County Court judge, can "shoot from the hip" in his comments in the courtroom. 

During an opening statement in a murder trial in August, a defense attorney attempted to minimize the significance of the presence of her clients' fingerprints at the crime scene by pointing out that the prints of some Egyptian mummies have survived for thousands of years. 

"I don't know if the pharaohs have been involved in any criminal investigations," Weber said, laughing. 

"At times, he can be insensitive to dramatic moments or to victims," said another attorney. "He engages in behavior that's not conducive to the majesty of the justice system." 

Weber, however, argued that he is informal because he wants to communicate well. "People are not just going to do what they're told just because someone's wearing a robe," Weber said. 

As for attorneys who complain about his quips, he asked, "What do they want me to do? Be mean to them?" 

What they want, most attorneys said, are judges who treat them with respect, behave with dignity and show no bias. Many point to Nassau County Court Judge Donald Belfi as a model. 

He does not anger easily, treats attorneys with respect and controls his courtroom without demeaning the proceedings, attorneys said. 

"I have always had the philosophy that I treat everyone with respect, because I expect respect in return," he said, "and that includes the defendant. If there's any reason my courtroom runs smoothly, that's it." 

Attorneys point to his handling of the trial of Long Island Rail Road gunman Colin Ferguson. Ferguson, acting as his own attorney, cross-examined the people he had shot on the train, and Belfi had to be careful to allow the defendant the proper latitude while not letting him abuse the witnesses. 

"He never gets very excited, and I like that," said the attorney. "As a lawyer, you just need an opportunity to be heard." 

A calm demeanor not only makes lawyers feel that the judge is listening, but it can create an atmosphere in which warring attorneys can resolve a case. 


Supreme Court Justice Leonard Austin, who hears matrimonial cases in Suffolk, cuts down on contested motions over issues such as visitation and child custody because litigants are able to settle them during conferences with the judge, said Leonard Symons, an Oyster Bay Town Board member who has practiced matrimonial law for 30 years. 

"It sounds almost trite, but maintaining that dignity and professionalism has a tremendous impact on the efficiency of the system," he said. 

Earlier this year, for instance, Justice Joseph Farneti convened a hearing in which lawyers were to read a settlement agreement in a divorce case. But before long, the attorneys for the husband and wife were squabbling about the value of several automobiles. 

"I'm trying to be helpful, trying to keep this thing moving in the right direction, and you're about to snatch defeat from the jaws of victory on this case today," Farneti said from the bench. "I'm about to run out of patience. I'm perilously close to doing that right now." 

But he didn't, and the couple agreed to the settlement, leaving Farneti, who now hears criminal cases, to close with a bit of advice: "For the rest of your lives, you will be forever joined by your children ... It's time to put the fight aside, cooperate." 

Judges argue, however, that patience has its limits -- that they must, at times, exert forceful control over their courtrooms by cutting off discussions or denying requests for adjournments. 

One lawyer complained that Supreme Court Justice Melvyn Tanenbaum, who sits in Suffolk, is "very authoritarian." 

"If you have a case he doesn't think of as significant, he kind of lets you know he doesn't think it's significant, and he takes an attitude of, ‘Let's get this silly little thing over with,"' said another attorney who has appeared before Tanenbaum. 


Tanenbaum conceded that he does "cut through the nonsense" when necessary. 


"But I believe that's my function," Tanenbaum said. "I have to tell the lawyers from what they've presented to me that it is ... illogical." 

Supreme Court Justice Alan Oshrin, who sits in Suffolk, agreed that it's a judge's job to keep things moving. 

"Sit and watch a few trials," Oshrin said. "You have good and bad lawyers. The bad lawyers don't know when to stop. You know the old adage: ‘Don't ask a question if you don't know the answer.' Many don't know that ... Sometimes there comes a time to stop." 

But judges who move cases too quickly, or who demand rigid adherence to certain rules, can squelch litigants' ability to make their legal arguments. 

Several lawyers agreed with one attorney who called the courtroom of Judge Joseph Calabrese "a horrendous part to work in" because the Nassau County Court judge will not engage in private conferences over issues such as plea bargains. Instead, he makes the attorneys talk with his law secretary, Charles Weinschreider, and will confer with the attorneys only in open court. 

"As advocates, we like to talk to the one making the decision," said another criminal lawyer. "If I am trying to convince you, I would rather convince you eye-to-eye and face-to-face." 

"They want to be sure I have heard everything; I have heard everything," said Calabrese, who defends his methods as more efficient. "There has never been a situation where they have told me something at the bench that Charlie hadn't related to me." 

But the best trial judges, lawyers said, are calm, fair and accessible; they leave everyone involved with the impression that justice has been done. 

One local attorney recalled going up against a team of Manhattan lawyers who were representing a multinational corporation before Supreme Court Justice Stephen Bucaria, who hears cases in Mineola. 

"They had Park Avenue lawyers, when I walked into that courtroom I was on an equal footing," the attorney said. "... At the end of the case both lawyers commended the judge. That's rare." 

When judges leave lawyers and litigants with those sorts of feelings, they're doing more than being nice or closing out another backlogged case, said Cohalan, the fifth in his family to serve on the bench. He said there can be no justice, really, without civility and respect. 

"I always try to be courteous to everybody, and treat people the way I want to be treated myself,” he said. 

"It is so important to uphold the majesty of the law... It is our defense against chaos.” 

<Back to Top>

 


Backlog of Cases in Suffolk County

Similar counties have embraced better ways to manage them

<Back to Top>
 

By Jordan Rau
Staff Writer 

W
HEN IT COMES to finishing criminal cases quickly, all courts are not created equal. Year after year, Suffolk County judges have more trouble than judges in similar counties in promptly clearing their dockets. 

Suffolk County Court consistently has been less efficient than other New York counties with similar populations -- Onondaga, Erie, Monroe, West chester and Nassau -- a statewide comparison shows. 

"Over the years, we've been making some significant progress there [in Suffolk], but I know we have a way to go," said Deputy Chief Administrative Judge Joseph Traficanti, who is in charge of all state courts outside New York City. 

Supervising judges attribute the lags to the busy county's historical reluctance to embrace better ways to manage cases, long after other courts had employed these methods successfully. Suffolk Supreme Court Justice Patrick Henry, who was brought in as supervising judge of the county court judges in July to improve performance, said another problem was some "old warhorses that have worked hard over the years and are slowing down.” 

The baclog is not a new problem. In 1991, Suffolk brought to trial only 4 percent of all its cases -- the same percent as Nassau and more than any other of the similar counties. But at the end of the year, Suffolk still had more cases left open than any other of the similar counties. Out of all of those open cases, 36 percent dragged on beyond the 180-day goal set by administrators. 

Since then, the county has improved by several critical measures, but by the end of last year it still had more unresolved cases -- 649 to be exact -- than any of the other five counties Newsday compared with it. Suffolk cleared 82 percent of its cases, while similar counties cleared 88 percent overall. Nassau cleared 94 percent. 

Out of these open cases, 112 -- or 17 percent -- dragged on for more than half a year, the limit set by administrators. That's half the percentage in 1991, but still was more than among similar criminal courts around the state, including in Nassau, which had 68 cases left unresolved for at least that long. 

Suffolk also tried fewer cases than other counties. Last year county judges tried only 3 percent of its cases -- half the percentage that similar counties averaged. 


Suffolk is only now starting to adopt better ways of managing the flow of its criminal cases. The county recently embraced a strategy long used in Nassau, in which more defendants are offered plea agreements before they are formally indicted. That approach, which Henry said had been used only intermittently in Suffolk County Court until this fall, eliminates the need for convening a grand jury, which is a very time-consuming use of
a court's time. 

"It's a big step in the right direction," said Henry. 

Henry said Suffolk's backlog has been exacerbated by two time-intensive capital-punishment cases, one of which, involving serial killer Robert Shulman, occupied Judge Arthur Pitts for 11 months. A third capital case is scheduled to begin soon. 


Traficanti said the most efficient courts are the ones always trying to come up with better ways to streamline their caseloads. He cited Monroe County, an upstate region that includes Rochester. 

"It's always been an innovative place," he said. "They had the ‘rocket docket' where violations of probation would be on a fast track and addressed in 30 days. If you capture those cases early, you can avoid going to grand jury." 

State records bear out Monroe's successes. Last year, Monroe tried 229 cases, much more than either Nassau or Suffolk. Yet despite the time spent in all those trials, Monroe still cleared 91 percent of its cases, more than Suffolk though less than Nassau. 

While Suffolk has become more efficient over the decade, so have most other counties. The county closed out 5 percent more of its cases this year than it did in 1991, but so did other counties overall. 

State records for this year through Nov. 7 show that more Suffolk cases are going to trial, and the number of cases lasting beyond half a year is not dropping. However, unlike last year, the county is getting rid of more cases than it is taking in. 

"We're overcoming the backlog," Henry said. "It takes time to bring these things about. I asked for more judges, and as luck would have it I'm losing three judges ... I've told the judges here that I want trial days. That's how you get rid of cases." 

<Back to Top>

 


Selection Vs. Election

Appointment backers say elective-system politics can keep good judges off bench
<Back to Top>
 

By Monte R. Young and Jack Sirica
Staff Writers 

W
HEN MICHAEL OBUS worked for the Nassau County Legal Aid Society, the lawyers he knew who were winning judgeships had spent years toiling for political leaders in exchange for a judicial nomination.


"... In large municipalities, people had problems knowing the judges. They were voting with little information."
-- Edith Ossman, president, Florida Bar Association


"If you are not active politically in Nassau County ... then being a judge was not even a consideration," said Obus, now a judge himself. 

But Obus, then the appeals bureau chief for Legal Aid and not politically active, got his judgeship by answering a newspaper ad. The notice in the New York Law Journal said New York City was looking to hire a few good judges in the criminal and family courts. The Manhattan resident sent his resume to the mayor's judicial screening committee, he was interviewed, and he was recommended for a judgeship. Then-Mayor Edward Koch appointed him to the Criminal Court bench in 1986, and he became an acting state Supreme Court justice in 1993. 

Obus doubts that any of that would have happened without New York City's appointive process -- often called the merit system -- for some courts.


"But at least when you are nominated, you are put before the people."
-- Nassau GOP leader Joseph Mondello


"What they do in Nassau, I won't be critical of because I think you can get some good judges either way," Obus said. "But I got this opportunity through the merit system." 

While New York City has a combination system of electing and appointing judges, New York state is one of only 10 states in the country that almost exclusively relies on elections to choose judges. With the exception of Court of Claims and Court of Appeals judges, who are appointed, most communities pick their judges through the voting booth. 

On Long Island, that has led to an overtly political system for the selection of Supreme Court and County Court judges. Political leaders control the nomination process, in which party service or political connections count for far more than judicial qualifications and merit. The result, many in the legal community contend, is wide variances in the quality of justice. 

Advocates of the appointive system argue that it greatly enhances the quality of judicial nominees because a panel of experts would recruit and screen the best qualified candidates. In contrast, they contend, the elective system tends to produce judges whose main reason for being on the ballot is their political loyalty or ability to raise campaign money. 

"It's like having a B-plus or an A-plus," said Victor Regan, law secretary to Nassau County Court Judge Daniel Cotter, on the choice between an electoral system and merit. "The B-plus is OK, but you could have the A-plus." 

"Anyone can run for office, and there is no weeding out," agreed Court of Claims Judge Victor Ort, who was appointed by the governor and is one of seven Claims judges who are serving on Supreme and county courts on Long Island. "You can try and control it with the bar association, but if you have an appointive process, you have to go through the screening process. It would have to be an independent screening committee, not a rubber stamp." 

However, those who back the elective system argue that an appointive system is elitist because it takes the selection of judges out of the hands of the public. And they say it is political in its own right, because party leaders would lobby the governor or mayor who would choose the judges. 

"With the merit system, you have judges handpicked by a group of elitists who think they know better than the people who would be a better judge," said Nassau Republican Party chairman Joseph Mondello. "A good judge is a person who has tasted life, who sympathizes and empathizes with people. No one system is completely right. My way has holes in it, too. You make some mistakes. But at least when you are nominated, you are put before the people." 

Nationally, 40 states have adopted appointive systems in various forms, and not one of those states, legal scholars said, has returned to contested judicial elections. 

"They have a merit system because, somewhere along the line, they had a scandal where a judge takes a bribe. There was a growing distaste for the political influence in picking judges," said Seth Andersen, director of the Chicago-based Hunter Center for Judicial Selection, a branch of the American Judicature Society. "It may not be perfect, but we have found that none have gone back, because the system produces highly skilled judges." 

Fifteen states use a system in which judges are appointed through a merit system and then later face uncontested, non-partisan elections(called retention votes)to determine whether they should continue in office. Sixteen states use judicial nominating commissions, and four states allow gubernatorial appointments from nominees chosen by a judicial commission. One state allows legislative appointments without the recommendation of a nominating board, and four states -- including California -- have "dual" systems -- merit or gubernatorial appointment in some areas, partisan elections in others. 

Andersen said the reason large states like New York, Texas and Illinois, for instance, have yet to move toward an appointive system is simple: "Politics. Political parties are opposed to any reform. They want to control who becomes a judge." 

In New York City, Paul Curran, an attorney who heads the mayor's advisory committee on judicial appointment, said the appointive process is not totally exempt from politics: "There is nothing to stop a guy who is active in a political party from having someone call to give input to the mayor on why a person should be selected." 

Still, Curran, a Republican who once ran for state attorney general, argued, "I think you get better quality judges through a committee and appointing authority because you do so without regard to party." 

In Colorado, judges are appointed and then face retention elections. Before the election, a committee puts out a performance assessment of each judge so voters know who is on the ballot. 

"It is not a perfect system, but I have studied every system in this country and I'm confident this is the best you can get," said Ben Aisenberg, former Colorado Bar Association president and a former member of one of the states nominating commissions for judges. 

But advocates in Colorado acknowledge their appointive system is potentially subject to political influence. 

"It hasn't happened yet, but we know that because a judge rules a certain way on a case that upsets, say, Mothers Against Drunk Drivers, who feels a judge is too liberal, they may work to defeat that judge," Aisenberg said. "That's the one element that can't be eliminated: special interest groups." 

Such influence has been felt elsewhere in retention elections, in which special-interest groups can have a disproportionate impact because voter turnout is generally low. 

For instance, in 1996, Nebraska Supreme Court Justice David Lanphier and Tennessee Supreme Court Justice Penny White lost their seats when special-interest groups campaigned against their retention. Lanphier and White were not accused of poor judicial conduct or incompetence. 

In the case of White, the Tennessee Conservative Union portrayed her as pro-criminal and anti-death penalty after the Supreme Court had sent a capital case back for re-sentencing because of errors made in the original trial. In Nebraska, special-interest groups upset with legislative changes that lessened the penalty for second-degree murder sent a message to lawmakers by removing Lanphier from the bench. 

"The threat to judges who make unpopular decisions that are legally correct is the danger you face with retention when special interests takes over," Andersen said. 


In Florida, where the sheer number of judicial candidates on the ballot has been overwhelming, voters will decide next year whether each election district should move from the current elected system to an appointive one with retention elections. This change would mean that a committee would select the judicial candidates instead of voters picking judges that few of them know. 

"It has been a difficult fight for years. But in large municipalities, people had problems knowing the judges. They were voting with little information. Names became important. Candidates needed large war chests, and the best place to get the money was from lawyers," said Edith Osman, president of the Florida Bar Association. "I like the merit system and support it. I don't like judges pandering to lawyers for money." 

But some minority leaders have been critical of moving to a merit system, saying the rules are being changed now that Cuban-Americans and African-Americans in Miami-Dade County have the political clout to have a say in who runs for a judgeship. 

"If we do away with the people electing who sits on the bench," said Sergio Mendez, president of the Cuban Bar Association in Miami, "all that will be left is the politically appointed system and minorities and women are at a serious disadvantage in terms of getting on the bench," Mendez said. 

Other states are still trying to find the best way to seat judges, and appointive system advocates have often met with strong political opposition from party leaders and lawmakers unwilling to give up their power to decide who gets a judgeship. 

Merit became the battle cry for reformers in Chicago following the "Operation Greylord" scandal in the early 1980s, which led to indictments of nine elected judges and 22 lawyers for improper out-of-court contacts between them. 

"For years, we tried to get a constitutional change from elected to merit and got nowhere. So we said we need a good scandal. We got it, and it had no effect in terms of creating a grass-root effort to get state lawmakers to seriously look at merit selection," said David Anderson, assistant executive director of the Illinois State Bar Association. 

The American Judicature Society, a nonprofit organization that works to improve the administration of courts, has argued for a "three-legged stool" in Illinois:merit selection, a tough disciplinary system and retention elections in which judges run for re-election on a simple yes-or-no basis. 

"I don't want a judge who represents the majority view because people want to hang a person over some heinous crime," said Abner Mikva, a former federal appeals judge, White House counsel under Presifdent Clinton, and a proponent of the appointive system. "I want him to defend an unpopular law, that the rule of law is more important than putting someone behind bars because that's what the majority wanted." 

On Long Island, many in the legal community say they would prefer a merit system because the current system has politicized the selection of judges to the point where there seems to be an indifference to talent. Qualified candidates who don't participate in politics don't have a chance and seasoned jurists are sometimes lost because they belong to the wrong party. 

Suffolk County Court Judge Joel Lefkowitz noted that that's what happened to two veteran Democratic Supreme Court justices -- Alfred Lama and Leon Lazer -- after Republicans ended the cross-endorsement of judges in the mid-1980s. Both lost when they sought re-election. 

And, Lefkowitz said, "If the new Democratic judges in Nassau work out, it would be a shame in 10 years for them to go merely because politics to revert Republican there.” 

So, even though Lefkowitz believes appointing judges can merely lead to "a different set of politicians doing the choosing," he supports the retention system. 


Nassau's Chief Assistant District Attorney Harvey Levinson said that under an appointive system, nonpolitical candidates who would not normally come forward would do so because they actually had a chance of getting on the ballot. 

"I think in that way you'd attract much better candidates," Levinson said. 

Levinson noted that New York Mayors Edward Koch, David Dinkins and Rudolph Giuliani all appointed candidates who weren't from their own political parties. "These people in a million years would not get on the bench in Nassau County," he said. "If New York City can produce high-quality judges, why can't Nassau County do the same?" 

He also said that in some years more than a dozen judgeships are open, so voters have twice that many candidates to consider. "It is not practical to expect the public to be able to digest the backgrounds of 30 people, and therefore people give up and they vote for a party label, gender, or position on the ballot, and they know very little about the candidates," Levinson said. "I don't blame the public because it's just too difficult to know the qualifications." 

But appointive systems have detractors -- including judges and even some lawyers who profess to being unhappy with the quality of local talent on the bench on Long Island. 

Some say the system merely substitutes "bar politics" for electioneering and that it contains a bias toward white men. 

"The system is the same mechanically," said Suffolk Supreme Court Justice Melvyn Tanenbaum about appointive systems. "All there is is a shift in power. People who are not elected, who do not participate in the democratic system, have greater involvement in the selection process than they do where judges are elected. " 

On Long Island, however, the elective system has not produced much diversity. Only two blacks and five women serve on Supreme and County Courts. 

Still, Fred Brewington, a civil rights attorney, supports the elective system. 

"Right now, party leaders have a screening process that makes the selection of judges with regard to diversity limited for the electorate,” Brewington said. "I believe that will change because as the demographics of Long Island becomes more diverse, the people will have more of a say.” 

Sandra Feuerstein, a Nassau Supreme Court justice who sits on the Appellate Division, bristles at the term "merit." 

"Please don't call it that," she said. "I don't think that if you're elected you're not meritorious. By calling it merit, it implies that people who were elected are not meritorious. As someone who's elected I find that inappropriate." 

And Nassau County Court Judge Frank Gulotta said he finds it humorous when "people say the elective process is political." 

"How else are you going to select judges?" Gulotta asked. "You can't take someone in a vacuum, and in any panel you have they are going to have some political affiliation. And I think 5 million people telling you someone is qualified is better than having five people do it." 

For now, Gulotta won't have to worry about the demise of the elected system of judges. John Bracken, former president of the Suffolk County Bar Association, can attest to that. 

Bracken recalled walking the halls of the Assembly last year, bending lawmakers' ears in a futile attempt to get them to consider his proposal of an appointive system with retention elections. 

"The reaction was‘John, get serious. Where do you think this is going? You want me to go to my party leader and advocate this?"' said Bracken, who is also a former president of the New York State Bar Association. "I know that you can't totally eliminate all politics, even in a merit system. But I believe it's the best." 

In his 35 years of practicing law, Bracken said, "I've seen a lot of bad judges elected and some good people precluded ... because it has become the domain of the political party. And that's a shame." 

<Back to Top>

 




Modify Website

© 2000 - 2012 powered by
Doteasy Web Hosting