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FOR IMMEDIATE RELEASE
PR- 140-03
May 28, 2003

MAYOR MICHAEL R. BLOOMBERG PROPOSES JUDICIAL SELECTION AND ELECTION REFORMS

Mayor Michael R. Bloomberg today spoke at the Association of the Bar of the City of New York and discussed his proposals for judicial selection, tort and election reforms.  His prepared remarks are below:

There are a few jokes around about lawyers; you may have heard some of them.  One has a particular edge these days. 

What’s the difference between a good lawyer and a great lawyer?  The good lawyer knows the law; the great lawyer knows the judge. 

Well, giving the lie to that cynical view of the courts was the reason that this association was formed. In 1869, the New York Times editorialized that “there is virtually a judicial ‘ring’ in this city, and always will be, as long as the judges are chosen by the present constituency.”   Those were the days of Tammany and the notorious Boss Tweed, an era when judges’ decisions were quite literally for sale. 

A few months after that editorial appeared, this bar association was established. And its founders helped end those scandals by forcing the immediate removal of three judges and by setting high professional standards for the bar and the bench.  

That same kind of vigilance and zeal for reform, which have been the hallmarks of this association for 133 years, remain a responsibility in the 21st Century as well.

Those of us in this hall regard both the law and public service as honorable professions.  Many of you serve with distinction on City commissions and panels.  You volunteer your time in service to our corporation counsel and other agencies.  Your help following 9/11 and during the current fiscal crisis has made a huge difference—and we can’t thank you enough.

But ask the average New Yorker what he or she thinks of the law or of politics and many—far too many will tell you that they are rigged systems, not worthy of respect.

Even when it’s unfounded, such cynicism is corrosive. And when justified, it is doubly so.  As you know, I am not a lawyer.  But I have always believed that the rule of law and the legitimacy of government are the foundations of our society.  Any evidence that those foundations are rotten must become a call to reform.

We have shared responsibilities—and, thankfully, ample opportunities---to shore up these foundations, specifically by:

Ensuring that judges nominated for the bench are highly qualified; and by restoring robust democracy to the electoral process in New York City.

Trust in the courts begins with confidence in our judges. And we have an indisputable crisis of confidence if New Yorkers believe —as has been alleged in Brooklyn—that judges’ decisions can be influenced or bought with plane tickets or boxes of expensive cigars.  The crisis may continue until we can assure the public that our judges are not only free of any taint of corruption, but are among the best of the legal profession.

We must address this crisis now, by taking steps to ensure that all our judges are highly qualified, honest and have the intelligence, fairness and compassion that define judicial temperament.  I have no doubt that the overwhelming majority of judges in this city, some of whom are here this morning, meet these standards.  But others do not.  And the fact is there is something very wrong in the way many of our judges are chosen.

The problem is not with the criminal and family court bench.  As most of you know, those judges are appointed by the Mayor.  And following the precedent established by Mayor Koch and adhered to by his successors, our appointments have been made on merit. Our executive order stipulates that we only name as judges men and women found to be highly qualified by the Mayor’s committee on the judiciary.

Under the leadership of Zach Carter and Bob Keating, our Advisory Committee on the Judiciary has recommended truly outstanding men and women for appointment and reappointment to the bench.

To add an extra quality safeguard, the nominees they recommend also must be found qualified by this bar association.  The work of its chair, Jeh Johnson, and the other members of the City Bar Judiciary Committee have been enormously valuable in this process.

But civil and supreme court judges, unlike family and criminal court judges, are elected by the voters.  Some believe that the vagaries of judicial election campaigns, including the need to raise campaign funds, and the irrelevance of party affiliation in selecting good judges, make judicial elections problematic.  They argue that instead, all judges should be appointed under a merit system similar to that provided by the City’s judicial appointment executive order and also used in selecting judges of the New York Court of Appeals. 

That is a change that would require a state constitutional amendment.  A debate on this question should go forward, and I urge you to participate in it vigorously.  But in the interim, all of us—and especially those who have had a stake in the status quo—must clean house—immediately.

That’s why today, I am calling on the county leaders of the political parties to commit -- right now -- to naming broad-based screening panels to evaluate and make public recommendations on all those being considered for judicial nomination. 

The members of these panels should be appointed, as the city’s executive order provides, by top members of the bench and bar, not just by political leaders.  And our city’s political party leaders should meet the standard set by our executive order, and further pledge to recommend for judicial nomination only candidates who have been found highly qualified by these screening committees, and by the bar association. 

That commitment would send the clear message that behavior such as that alleged in Brooklyn will not be tolerated.  It would also be a big step toward ensuring that the most highly qualified individuals we can find will be on the bench to resolve the critically important questions that come before state courts every day, indeed every hour.

Court reform, a noted jurist once observed, is not for the faint-hearted or the short-winded.  And the same could also be said of a closely related issue, tort reform. 

Our administration’s views on this subject are well known. Tort claims are an essential form of legal redress, and nothing should be done to impede the ability to sue for recovery from personal injuries.  Clearly, if the city does something wrong it should face civil liabilities.  But it shouldn't bear more than its real responsibility.  Sensible tort reform is indispensable to returning equity, balance and personal responsibility to a system that is now out of control.

For the fiscal year ending June 30th, City government is expected to pay in excess of $500 million in tort judgments and settlements.  This is, in short, a half-billion dollar tort tax on the people of this City—a tax that drains money from essential services rather than allowing us to maintain or enhance them.  And next year, we expect this tort tax to be even higher.

It is a measure of the disconnect from the political and civic process that this should be countenanced. It’s an indication of the degree to which the legal process has come to be viewed as a sort of casino.   And, to protect the fiscal integrity of the city and the moral integrity of the courts, it’s an excess that I ask your help in stopping.

The Bar’s support would, for example, make an enormous difference in enacting a desperately needed local reform concerning liability for slip and fall sidewalk cases. New York City law requires building owners to keep the sidewalk in front of their property free from defects, including snow and ice. 

But if someone falls on a sidewalk crack, or slips on snow the landlord did not shovel, only the City is liable. The landlord only incurs liability if he is dumb enough to try to fix the sidewalk and does so improperly, or does a lousy job in shoveling the snow.  If the landlord does nothing, the plaintiff recovers from the city. 

This makes a mockery of law and logic.  It sabotages the idea of personal responsibility.  It removes any incentive to the landlord to keep the sidewalk in good repair.  And it costs New York City taxpayers $60 million in sidewalk payouts each year, plus the salaries of the 40 or 50 lawyers in the Corporation Counsel’s office who defend these cases. 

A bill that would make landlords liable in such cases is now before the City Council.  A hearing on it is expected next month.  Every major newspaper in the city has editorialized in favor of it.  Our Corporation Counsel, Michael Cardozo, will be able to tell you when and where to testify.  I hope I have persuaded you why and how.

At the same time that we reform the courts and torts, let’s also clean up the way we elect our City leaders.

Fiorello La Guardia once famously observed that there is no democratic or republican way to pick up the garbage—just the right way. 

But not only is political affiliation meaningless in running the city; the institution of partisan city elections fundamentally weakens democracy, discouraging voting, and leaving control of the political process in the hands of a few powerful insiders.

The facts are indisputable. As the reports of this bar association have demonstrated, the ballot petition procedures that candidates must follow are notoriously arcane and burdensome.  Knocking opponents off the ballot is a cottage industry for election lawyers.  The system permits party organizations to stifle competition and exact patronage. 

The result: a small plurality—sometimes fewer than a third of voters—often tip the scales in the elections where the action really is: the party primaries. Independent voters are disenfranchised by general elections that serve as pallid confirmations rather than as robust political contests. This is a system that works like a charm for party bosses and their typically handpicked candidates, for whom the incumbent re-election rate approaches 100%.  But it is not healthy for democracy.

It is particularly discouraging to the rapidly growing number of independent voters in New York. Over the last ten years, the ranks of these political independents have grown by some 30%.  They now account for 17% of the electorate, and are the second-largest voting bloc in the city. Two groups whose participation in elections we particularly want to encourage—young people and immigrants—are driving this trend.  But too often, our present electoral system effectively disfranchises them.

And despite substantial increases in the voter registration rolls, voting has declined dramatically.  There are 1.4 million more voters in New York City today than there were 50 years ago.  But almost 700,000 fewer votes were cast in the last mayoral election than in the election of 1953.

Simply put, our present system is broken.  To fix it I have appointed a charter revision commission, headed by one of our most distinguished public citizens: St. Francis College President and former Schools Chancellor Dr. Frank J. Macchiarola.  

I have asked that commission to propose a charter amendment that would call for all city elections to be conducted on a non-partisan basis. 

New York City’s voters should be allowed to decide whether, as is true in 41 of the nation’s 50 largest cities, municipal leaders should run without party labels.  If non-partisan mayoral elections work in Los Angeles, Chicago, Houston, Detroit, Denver, and San Francisco, there is no reason why they should not work in New York. 

In fact, there’s every reason to think it would work very well here. New York has a generous campaign finance program.  New York has a voter guide that goes to more than three million registered voters. We have six competing daily newspapers—a real rarity among the nation’s cities—and also a large number of other media outlets, including weekly papers, cable news stations, ethnic and general radio stations.  These forums for civic debate currently help voters in the City’s current elections to differentiate among candidates.  There is no reason why they would not play the same role in non-partisan elections.

This is not an issue of Republicans versus Democrats.  Not surprisingly, leaders of both parties oppose non-partisan elections.  That doesn’t bother me.  War, it’s been said, is too important to leave to the generals.  And democracy is too precious to leave to the party bosses. 

The specifics of how to conduct non-partisan elections—such as when they should be held and how candidates would get on the ballot—still need to be worked out.  It’s my expectation that the charter commission will address these issues with the goal of opening the doors of democracy.  Then it will be up to the voters to decide.

I urge you, individually and as a bar association, to work with the commission on this vital issue.  The Commission’s executive director has already met with your charter revision sub-committee. The Commission also has begun holding public hearings and taking testimony on non-partisan elections.  There is one this evening at PS 69 in Queens, and more hearings will be held later this spring. Your ideas and opinions can play a vital role in crafting a proposal on non-partisan elections to put before the voters.

New York is the greatest City in the world—the beacon of freedom and opportunity to people everywhere.  But to the extent that it permits citizen apathy, or cynicism about the law to take root, it is not the city that it should be.  Our obligations—and our opportunities—to make a difference our clear.  Now it’s up to us to act.





CONTACT:

Edward Skyler / Jordan Barowitz   (212) 788-2958


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