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United States Court of Appeals Affirms that New York’s System of Selecting Trial Court Judges is Unconstitutional

August 30, 2006

For Immediate Release
Wednesday, August 30, 2006

Contact Information
Deborah Goldberg, 212 998–6748
Frederick A.O. Schwarz, 212 992–8633
James Sample, Brennan Center for Justice, 212 992–8648

United States Court of Appeals Affirms That New Yorks
System of Selecting Trial Court Judges Is Unconstitutional

Ruling Takes Control from Party Bosses and Empowers Voters to Select Their Partys Nominees for Supreme Court

New York, NY Today, the United States Court of Appeals for the Second Circuit affirmed in its entirety the decision of U.S. District Court Judge John Gleeson granting a motion for preliminary injunctive relief in Lopez Torres v. New York State Board of Elections. The Brennan Center for Justice at NYU School of Law, together with counsel, Arnold & Porter LLP and Jenner & Block LLP, argued that New Yorks unique convention systemused by the political parties to select their judicial nomineesdeprives New Yorkers of their right to cast a meaningful vote for trial court judges.

The Second Circuits unanimous opinion, authored by Judge Chester Straub, and joined by Judges Sonia Sotomayor and Peter Hall, upheld Judge Gleesons determination that New Yorks judicial candidates have the right to . . . compete for their major partys nomination free from burdens that are both severe and unnecessary under the First Amendment. The court also found that Judge Gleeson did not err in finding that the structure of [New Yorks] primary election, its petitioning requirements, and the delegate lobbying process severely burden First Amendment associational rights. The Second Circuit also upheld Judge Gleesons remedy, requiring that nominations be settled by primary election until the State Legislature enacts corrective legislation. Todays ruling grants voters relief from a system that gives party bosses virtually complete control over the selection process and is an election in name only.

This ruling is a huge victory for the voters of New York State, said Frederick A.O. Schwarz, Jr., senior counsel for the Brennan Center. The responsibility is now with New Yorks legislature to enact a system of judicial selection in accord with New Yorks Constitution. Such a system must recognize the right of voters to have a meaningful say in the process.

The ruling is not only a victory for voters, but also for previously excluded candidates, and will strengthen New Yorks judiciary, said Jeremy Creelan of Jenner & Block LLP. Under the current system, judges are beholden to party leaders and many well-qualified lawyers are never even considered for judgeships because they have no ties to party leaders. Allowing all well-qualified candidates to compete for their partys nomination will help restore confidence in our courts.

Todays decision is a great step forward for New Yorks judicial system and those who rely on it, said Kent A. Yalowitz of Arnold & Porter LLP. The decision opens the door for great improvements to our process of selecting those who serve the public, and will go a long way toward removing the taint of corruption that has hung around some of the states courthouses for far too long.

The Brennan Center had filed the case in March of 2004 on behalf of Civil Court (now Surrogate Court) Judge Margarita Lopez Torres, Common Cause/NY, and several voters across the State. The named defendant is the New York State Board of Elections. The Association of Supreme Court Justices, the New York County Democratic Committee, and the New York State Republican Party all intervened as defendants to defend the status quo.

The decision is available on the Brennan Centers website