The Corruption of Andrew Cuomo Part 2: The Hevesi-Morris-DiNapoli Pension Scandal

Alan Hevesi

Alan Hevesi, former New York State Comptroller, and his colleague Hank Morris have been indicted for plundering the State pension fund for their own financial gain. One of the questions the public needs answered now is, who knew about this, and what did they do/not do to stop it? Why did newly elected Comptroller Tom DiNapoli suspend his agency's sole audit of the attorney general's office soon after launching it a year ago? DiNapoli spokesman Dennis Tompkins explained as follows: "We had a temporary shift in priorities."
From Betsy Combier:
Editor, parentadvocates.org
LINK

I pay taxes like anyone else, and yet have no expectation that public officials whom I am paying with my tax dollars are working to protect my best interests or that of my fellow taxpayers. I am baffled as to why New York State voters seem to enjoy putting corruption into the closet by buying papers such as The Daily News. (See The Corruption of Andrew Cuomo Part 1:The Aqueduct Racino Bidding Process)

Would someone please find out what Andrew Cuomo and Eliot Spitzer, New York State's former Attorney General, were doing while Alan Hevesi (also see the article below) and his people were stealing our pension funds? Tom DiNapoli was appointed to take Hevesi's place, and now has won election as the New York State Comptroller. He needs to answer this question as sole trustee for the $129 billion State pension fund, one of the largest institutional investors in the world.
Audit of Cuomo quickly put off
By CASEY SEILER State Editor, Times Union, Saturday, November 6, 2010
LINK

ALBANY -- Comptroller Tom DiNapoli's office suspended its sole audit of the attorney general's office almost immediately after launching it almost a year ago.

The audit of the attorney general's Civil Recoveries Bureau was, and remains, DiNapoli's only examination of Andrew Cuomo's office since the former assemblyman was appointed to the post in January 2007.

The audit was first reported by the Times Union a week after the customary "engagement letter" was sent to the attorney general's office in December 2009. The Civil Recoveries Bureau is assigned to recover money owed to state agencies through litigation.

"We issued the engagement letter, and shortly after that we suspended the field work," said DiNapoli spokesman Dennis Tompkins.

Asked to explain the reason behind the suspension, Tompkins said, "We had a temporary shift in priorities."

Tompkins would not respond when asked if the attorney general's office had requested the postponement of the audit, which would have been conducted during Cuomo's investigation of the pension fund scandal involving DiNapoli's predecessor, Alan Hevesi. The probe, which at the time was also examining DiNapoli's conduct in office, is ongoing.

"I can't comment on the investigation into the pension fund," Tompkins said.

The attorney general's office failed to answer a request for comment.

The initiation of the audit followed months of often cool relations between DiNapoli, who on Tuesday was elected to a full term, and Cuomo, now the governor-elect. As the pension fund investigation progressed through 2009, Cuomo became vocal about what he saw as the need to curtail the comptroller's "sole trustee" status over the $125 billion Common Retirement Fund. Cuomo has proposed the creation of a 13-member board of trustees including the comptroller as well as appointees of the governor, the attorney general and legislative leaders.

DiNapoli has remained resistant to what he sees as a reduction in the comptroller's constitutional powers that, he argues, could expose the fund to political moves.

Just after the letter announcing the audit was delivered, Tompkins dismissed the notion that the timing of the audit was due to anything other than the comptroller's obligation to conduct examinations across state government. "There is no ulterior motive," Tompkins said in December. " ... This is what we do."

Hevesi resigned in disgrace just weeks after winning re-election in 2006, and pleaded guilty last month to felony corruption after admitting that he had received more than $1 million in campaign cash and luxury trips in exchange for granting investment firms access to the pension fund. His longtime adviser Hank Morris decided to take a plea earlier this week.

Following Hevesi's guilty plea, Cuomo's spokesman took the unexpected step of issuing a statement saying that while matters involving DiNapoli had been examined, he was "not involved in any investigation or matter in this office."

That assurance was seen as a major boost to DiNapoli, whose Republican opponent Harry Wilson had attempted to tie the incumbent to Hevesi's misdeeds.

Tompkins insisted that despite the suspension of DiNapoli's only audit of the attorney general's office, the pension fund scandal doesn't limit the comptroller's fiscal oversight. He said the exam of the Civil Recoveries Bureau is still on the audit plan, although he couldn't say when it would resume. "I don't know the timing of it," Tompkins said.

Reach Seiler at 454-5619 or cseiler@timesunion.com.

Ex-Comptroller Alan Hevesi pleads guilty to felony, drops dime on former advisor
By FREDRIC U. DICKER in Albany and LAURA ITALIANO in New York
New York Post, October 7, 2010
LINK

Disgraced former state Comptroller Alan Hevesi pleaded guilty to a felony corruption charge today in connection with the huge pay-to-play state pension story -- even ratting out his former longtime political advisor Hank Morris for the first time -- that has rocked the office he once held.

Hevesi, a Democrat, was charged with the felony for receiving a reward for official misconduct in the second-degree.

READ HEVESI'S ALLOCUTION

READ THE CHARGES AGAINST HEVESI

"I deeply regret my conduct and sincerely and deeply apologize to the people of the state of New York." he told Manhattan Supreme Court Justice Lewis Stone, who will sentence him to as much as four years behind bars to as little as no jail time on Dec 16.

The plea deal includes his cooperating against remaining co-defendants, including Morris.

"Beginning in June 2003 through September 2005, I approved a series of Common Retirement Fund investments totaling $250 million in Markstone Capital Partners, a private equity fund managed by Elliott Broidy. In exercising my discretion as Comptroller to approve these deals, I gave preferential treatment to Markstone and Broidy, who was a friend of mine and political fundraiser for my campaign.

"I also sought to help Broidy in his efforts to market Markstone by encouraging other public pension funds to invest in Markstone," said Hevesi, who wore a black suit and looked somber throughout the proceeding.

Hevesi also surrendered his passport before the hearing, where the former city and state comptroller told the judge about his misdeeds in great detail.

"Broidy and I agreed that Broidy would pay for certain travel expenses on my behalf, and I was aware that Broidy concealed his payment of some of these expenses through the use of charitable organizations and false invoices submitted to the Office of the New York State Comptroller.

"On at least five occasions, between in or about April 2003 and in or about June 2006, I traveled to Israel, and on one occasion to Italy, with Broidy and certain high-ranking officials of the Office of the New York State Comptroller. Pursuant to our agreement, Broidy paid at least $75,000 in travel expenses incurred by myself, other Office of the New York State comptroller officials, and my adult children, in connection with these trips," Hevesi told the judge.

Attorney General Andrew Cuomo has been investigating Hevesi and several of his former top aides including Morris in connection with kickbacks that were paid by investment companies to gain access to the massive state pension retirement fund.

“Alan Hevesi presided over a culture of corruption and violated his oath as a public servant,” Cuomo said in a statement. “He was solely charged with protecting our pension fund, but he exploited it for his personal benefit instead. With his guilty plea, we can now focus on the process of restoring public trust in government."

Morris has been indicted on multiple felonies and several guilty pleas have already been entered including one by former state Liberal Party boss Raymond Harding, a longtime Hevesi friend and advisor.

"During my tenure, as I knew, my paid political adviser and campaign manager Henry 'Hank' Morris arranged for Broidy to enter into a sham consulting agreement with a lobbyist friend of Morris who was also a political supporter of mine pursuant to which Broidy paid or caused to be paid in excess of $380,000 to the lobbyist over a period of more than two years. Markstone, with my knowledge, failed to comply with its obligation to disclose to New York State Common Retirement Fund staff that these payments had been made in connection with the New York State Common Retirement Fund’s investment in Markstone," said Hevesi.

Hevesi resigned in December 2006 after pleading guilty to an unrelated felony charge.

Hevesi controlled the multibillion-dollar pension fund until his resignation when he admitted to using state workers to chauffeur around his wife.

Hevesi ended his remarks by saying that Morris "solicited contributions to my re-election campaign from those doing business with" the retirement fund.

I understood that during my tenure as comptroller, Morris was also a paid placement agent in connection with Common Retirement Fund investments, and that he steered Common Retirement Fund investments to friends and political associates," he said.

David Loglisci, chief investment officer of the state fund under Hevesi, pleaded guilty this past March to a violation of the state’s general business law.

Prosecutors said Loglisci, who has also agreed to cooperate with authorities, had allowed Morris to choose which money managers received alternative investments from the fund.

COMMENTS
Off Duty
10/08/2010 8:10 AM
When the F will New Yorkers wake up?

bobp1940
10/07/2010 7:54 PM
Another member of the main crime family in NYS "The DemocRAT Party" pleads guilty to crimes committed while in office. And yet the 'Soldiers" of the crime family will march into the voting booths and vote to put more "Capo's" into office.

Debbi64
10/07/2010 6:49 PM
Just wondering? If he's admitted to all these "kick backs" per se...where is the IRS looking for their fair share + interest and then returning everything except the interest????

Don't we all pay taxes?

Archie
10/07/2010 6:17 PM
Vote Republican !

Ex New Yorker
10/07/2010 4:30 PM
Andrew Cuomo stated "With his guilty plea, we can now focus on the process of restoring public trust in government." LMAO! These very same words have been uttered countless times since the days of Tammany Hall and NOTHING has changed! While both political parties are no angels, the Democrats really take the cake when it comes to corruption; witness NY, Chicago, Bell California etc. They wrote the freakin book on corruption, and NY'ers will continue voting for them because Democrats exist by rewarding mediocrity and placating unskilled workers with high paying jobs and benefits.

Bellona
10/07/2010 3:50 PM
What about his tennure as City comptroller? What went on there?

BillNYC
10/07/2010 1:48 PM
Put the bum in JAIL for the full FOUR YEARS, No Parole, No Early Release!

MaryLongIsland
10/07/2010 1:48 PM
RISE UP my fellow NY'ers...these are CORRUPT POLITICIANS FOR DECADES IN NY STATE...VOTE THESE BUMS OUT!!

THROW OUT PRINCE CUOMO on 11/2...NO MO CUOMO!!

These CLOWNS...Schumer, Silver, Gillibrand, Bloomberg,CUOMO, accidental Governor Patterson,Hevesi,Former disgraceful Gov Spitzer..Senate majority, Assembly majority, etc all are DEMOCRATS my friends! ...Robbing us BLIND for decades and they are PROUD of it!

Prince Cuomo total Fraud & Failure running HUD...$59 BILLION unaccounted for when an AUDIT was performed...

DON'T send CORRUPT CUOMO to Albany folks as he is the leader of DIRTY Politicians!!

MHRAorg
10/07/2010 1:41 PM
This is guy, Hevesi, is a slug. But he wasn't by himself. You mean to tell me his deputy didn't KNOW or SUSPECT what was going on. How does he get a pass on this?!!!

No More Mr Nice Guy!
10/07/2010 1:37 PM
HughMcs.........You are correct ! There is no mention of any mandatory jail time in his plea deal . They do however mention that he could do no time at all . There is also no mention of fines or the return of any of the loot . It does mention the name of one particular guy he is going to rat on . Morris will get the real punishment . Hevesi will be rewarded for his invaluable help to the prosecution , His good buddy , Cuomo

HughMcs
10/07/2010 1:07 PM
I think there is a "sweetheart deal" in the making. This prosecution is all about portraying "Prince Andrew" as a shining knight in armor. Everyone knows that he got a job with Clinton due to his father's political influence. Why weren't Hevesi's son's included in the indictment? Where is the investigation going? Have deals been made that if Cuomo gets elected will he give "pardons" to these political fat cats.

Queenskid
10/07/2010 12:45 PM
I sincerely hope this guy gets the kind of hard time he would were he not a white politician. Stick his old behind in Rikers and let those who enjoy older men have some fun.

kingtigertank
10/07/2010 12:44 PM
Jail is the appropriate sentence for this corrupt moneysucking parasite. As a previous poster stated, he only regrets getting caught. I seriously doubt he is is even shamed by his criminal behavior. Corrupt politicians of his ilk have done enormous damage to NYS. "Pay to play" is alive and well in New York and there are more Hevesis still out there that need to be caught.

Mimi
10/07/2010 12:30 PM
So what about Hevesi's two sons (Daniel, a former politician, and Andrew, a current politician)? Are they exempt from prosecution now? Why is Andrew allowed to remain in office?

LedZep
10/07/2010 12:27 PM
OK friends - what are the odds he gets no jail time?

I say there is a 80% chance he gets no jail time

LedZep
10/07/2010 12:25 PM
He states: "I deeply regret my conduct and sincerely and deeply apologize to the people of the state of New York."

He meant to say: "I deeply regret getting caught and I wish I was still in the position to screw the find the people of the state of New York."

WNYer
10/07/2010 12:12 PM
When is Cuomo going to be investigated?

Al Einstein
10/07/2010 11:48 AM
Thanks God we have mini-me mario to get tough on crooked politicians. He's goona be such a good governor...the timing couldn't be better for the little sfacim.

fred klein nassau cty ADA
10/07/2010 11:40 AM
karma every thing was good with all the shake downs until i got caught.while pretending to be a good law enforcement officer i was fired for being a gigantic liar and thief.while all along it was me and i put many innocent people in prison for my own greed and ego.i got caught up in my own judge and jury and hang man attitude.

stopcorruption
10/07/2010 11:38 AM
This state is amazing. Here you have this thief that has a history of corruption still working in public office. NYS socks the big one. We must leave this skithole.

outraged
10/07/2010 11:08 AM
more schemes more corruption it's everywhere just look at the nonprofits stealing like crazy..millions and they are perverts also. I read about the ceo of the leukemia and lymphoma society another child molestor

ne3pete
10/07/2010 11:02 AM
I wonder if he can play a race card like Rangel? oh..wait, he can play the "politician" card!

LiesLiesLiesLiesLies
10/07/2010 10:55 AM
A scrificial lamb for Cuomo's election year altar.

Try all the blood letting you want Andrew. Carl is gonna whoop your azz.

mingdurga
10/07/2010 10:51 AM
Messing around with state workers pension plans is a big NO NO Alan. Anything else is just par for the course of doing political business in NY or any other state. As long as nobody pulls a Michael Vick, you guys should just be fined and "leave" office. Exceptions are the Vito Lopez's and Pedro Espada's. They're just plain thieves and deserve jail time.

iheartdogs
10/07/2010 10:41 AM
I'm sure the government employees in charge of billions of taxpayer money used to run Obamacare will be just as honest, lol.

Toni
10/07/2010 10:16 AM
Another sad story of the state of our Governments Leaders. Are any of them honest?

newsreader
10/07/2010 10:03 AM
Hi Alan - remember when you came to Erie County in 2006 and pointed your finger at us and said "we needed adult supervision"?

Interesting how you insinuated that we should just shut up and raise taxes all the while you were padding your pockets and using state resources for your own personal use.

Ah... those must have been to good ol' days when your arrogance ran rampant. So... who needs "adult supervision now" ?

bonkers
10/07/2010 10:03 AM
xoxoxo

throwemallout
10/07/2010 9:55 AM
Another Democratic politician busted for corruption. Shocker!

dth2libbies returns
10/07/2010 9:49 AM
Liberals stealing from Liberals so what? NY will continue to vote for Demonrats anyway so what?

No More Mr Nice Guy!
10/07/2010 9:44 AM
If he is ready to cop-out already he must have plenty to hide , Including a very large stash of money . He must have cut a real nice deal for himself . The kind of deal where he wont do much time and returns very little . Im sure Cuomo took it easy on him . Jimmy Hoffa was convicted of committing the same crimes with the Teamsters pension fund . He lost everything and did 8 years in federal prison . Lets see what happens to this guy .

maggiev77
10/07/2010 9:40 AM
What's amazing is that there has not been any monitoring of State pension funds at all. Don't they get it. Here's the equation:

Any Politician+Power+Unmonitored Funds=Corruption

skiparoo
10/07/2010 9:33 AM
self serving thief. lock 'em all up, asap.

SuzannahTroy
10/07/2010 9:28 AM
Please explain to me why Hevesi and not Steve Rattner, Mike Bloomberg's money manager who pleaded the 5th to the SEC more times than Mike Bloomberg has been mayor? Why did someone finally get out the handcuffs but nothing is happening with the slush fund investigation at City Hall except tax payers' bills for top defense attorneys for Christine Quinn and staff are just getting bigger. In Ari Ronston's article in NYO he lays it out clearly that Bloomberg broke the law not declaring the money he wired to the Independence party and no one has the guts to apply the laws to Bloomberg the way I understand it. It sickens me that the rich and politically connected are above the law. Re: pensions - I have heard they have been grossly mishandled as well as exploited.

DMZ
10/07/2010 9:24 AM
SuperDopeFreakObama,
In case you haven't noticed, corruption runs rampant on BOTH sides of the aisle. The size and scope of the crimes supposedly committed by this politician are miniscule compared to what Obama's predecessor and HIS puppeteer Darth Vader pulled, AND GOT AWAY WITH!

Lou (bx67)
10/07/2010 9:14 AM
Yet another corrupt Democrat.

NYS is a real political sewer filled with Democrat sewer rats.

hojo
10/07/2010 9:11 AM
When this creep is being held on Rikers in General Population, then alert the public.Why isn't he going thru the same procedures as all others who are arrested. The double standard has become more blatant and brazen. What a shame.

SuperDopeFreakObama
10/07/2010 9:04 AM
Bookem Danno!

THE DEMS ARE CORRUPT, THEY HAVE BEEN STEALING FROM NY FOR DECADES.

NOV,2...MAKE IT STOP!!!

Joey in LI
10/07/2010 9:04 AM
@Magma, @Shy Dawn, how crooked a politician is simply depends on who's is in power. In 5, 10, maybe 15 years, when there's a different AG, I'm sure we'll see Cuomo in handcuffs. You can't be good at being a politician without being corrupt!

eatingdogfood
10/07/2010 9:01 AM
Another Corrupt Liberal DemoRat !!! Does anybody really believe that he will serve any Prison Time ??? Yes, he will be made to walk the "Perp Walk " !!! That's it !!! Then he goes home and continues to collect his hard earned NYS pension !!!

Magma
10/07/2010 9:00 AM
Please lock him up. Please.

Shy Dawn
10/07/2010 8:58 AM
Gee what a surprise, another crooked politician.

WNYer
10/07/2010 8:56 AM
The man needs to go to jail,Too many politicians getting caught with their hand in the cookie jar but, not going to jail. If you do the crime, do the time, period.

Barack_Mugabe
10/07/2010 8:51 AM
Ho hum. The Culture of Corruption rambles on.

DON'T GET FOOLED AGAIN!
10/07/2010 8:50 AM

From Betsy Combier:
oh yes, you might say, Andrew Cuomo is ripping apart the pay-to-play in Albany. Really? Giving the rooster the job of picking the hens in the hen house is ridiculous, dont you think? Who is investigating Andrew Cuomo?

Wait until you see how Andrew Cuomo fights his constituents in order to steal their property in his own pay-the-judges-to-play scheme. That's my next article in this very sad series on New York State's new Governor.

Everywhere a ripoff
Editorials
Saturday, April 17th 2010, 4:00 AM
LINK

Attorney General Andrew Cuomo's probe of corruption in the state pension fund makes it clearer than ever that Albany is a cesspool of pay-to-play politics.

Two investment firms and three lobbyists agreed to cough up a total of $17 million to the state, the pension fund and federal securities regulators to settle charges that they improperly wangled money from the $129 billion pension fund. Among the key players was President Obama's former car czar Steven Rattner.

The settlements were the flip side of criminal charges that Cuomo has pursued among the inner circle of former Controller Alan Hevesi.

One Hevesi top aide has pleaded guilty, and Hevesi's long-time political consultant Hank Morris stands indicted.

Foremost among the schemers, Morris pocketed tens of millions of dollars as a middleman in pension fund deals overseen by his pal.

It didn't matter whether you were a small startup firm or a seasoned money manager. If you wanted a piece of the pension fund, cutting Morris in on the action was the way to go.

Morris' lawyer brazenly admitted as much in a stunning response to Cuomo's indictment:

"It should come as a shock to no one that 'knowing people' matters, and that individuals with political connections frequently enjoy readier access to government decision-makers than do others."

Ain't that the truth?

When Los Angeles-based money manager GKM hired Morris in 2003, for example, it was a young company with $14 million in assets and "virtually no track record," Cuomo's office says. Morris worked his magic and - presto! - GKM was handling $800 million within two years.

Then there was Rattner, a top Wall Streeter who founded the Quadrangle Group.

When Rattner was angling to win Quadrangle a pension fund contract, he not only paid Morris a cool million but also helped finance "Chooch," a cheesy movie produced by the brother of a top pension fund official.

Cuomo's settlement further reveals that Morris leaned on Rattner to donate to Hevesi's campaign fund, and Rattner responded by hitting up a couple of friends to contribute $25,000 each.

His reward? A $150 million investment from the pension fund.

Quadrangle rebuked Rattner, saying his actions were "inappropriate, wrong and unethical."

Meanwhile, Hevesi's successor as controller, Tom DiNapoli says he has diligently cleaned up the mess he inherited. But at least one smelly deal transpired on DiNapoli's watch.

As the Daily News' Ken Lovett reported last year, DiNapoli more than tripled an investment with a firm called InterMedia after a meeting in his office brokered by lobbyist and former Bronx Democratic boss Roberto Ramirez.

Also apparently in the room was a partner with Global Strategies Group - a lobbying and political consulting firm well known for its high-profile clients, including Eliot Spitzer and Cuomo.

DiNapoli mewls that the confab took place before he changed the rules to ban middlemen and other pay-to-play practices.

So what? As Cuomo's investigation proves beyond a doubt, allowing lobbyists and fixers to come within 100 miles of the pension fund is a recipe for disaster.

DiNapoli shouldn't have needed rules to tell him that.

Mayor Bloomberg defends friend, car czar Steven Ratner, amid pension scandal probe

By Kathleen Lucadamo, DAILY NEWS CITY HALL BUREAU
Thursday, April 23rd 2009, 1:33 PM
LINK

Mayor Bloomberg defended his buddy Steven Rattner Thursday, saying he shouldn't give up his federal car czar post while investigators probe his firm's involvement in an exploding pension scandal.

"I can tell you going back a long ways with this guy, he is scrupulously honest and a great public servant," Bloomberg told reporters.

City ethics lawyers last year cleared the way for Rattner's Quadrangle group to manage the mayor's personal fortune and philanthropy assets year after Bloomberg asked for more flexibility in his investments.

The private-equity firm is being probed by State Attorney General Andrew Cuomo for paying fees to secure investments by the city pension funds without disclosing the fees.

Rattner has not been charged with any wrongdoing in the expanding probe, which also includes Quadrangle's role in pay-for-play involving the state pension fund.

Placement fees are legal unless companies are forced to pay a particular firm in exchange for business.

A top associate of Alan Hevesi, who served both as city and then state controller, has been indicted in the scandal.

That associate, Hank Morris, was employed by a firm that collected millions in placment fees.

Critics have called on Rattner to step down from his position as President Obama's pointperson to bailout the auto industry until the investigation is complete.

"From what I can tell and what the authorities have said...he and his company did nothing wrong," said Bloomberg.

"If that's the case, there would be no reason to deprive the country of a very smart guy who is willing to devote himself to public service," he added.

Bloomberg said the decision is ultimately up to the president, adding "I really shouldn't weigh in, he is a friend of mine."

The Obama team has so far backed Rattner, saying he hasn't been accused of wrongdoing and that he alerted them about the investigation.

Judicial Independence Question: 3 Judges In Iowa Voted Out Of Office

Appointed vs. Elected Justices: States' High Courts Take a Hit

Katherine A. Helm, Special to Law.com, November 08, 2010
LINK

The nation often believes that the Supreme Court is divided in its voting strictly based on the political parties of the presidents who appointed the justices. The Court's decision earlier this year in Citizens United v. FEC provided a blunt exemplar of the divided ideologies.

Of course, divisions based on ideological orientation have animated judicial rulings since forever. It was perhaps at its worst, though, and the views expressed most strident, as 2000 drew to a close. The Supreme Court had just awarded the presidential election to George W. on party lines, in an episode truly sui generis. The most important decision in American constitutional history was seen as having been decided not by the justices who signed the majority opinion but by the party politics of their appointers. If the majority of voters had their way on Dec. 12, 2000, when Bush II was decided, they might well have tried a rapid-fire "recall" of the majority justices.

Why, then, in the face of such a calamity where the man-on-the-street Democratic voters believed that election was stolen through the medium of Republican-appointed justices, and now, on the still-hot heels of Citizens United, would anyone think the public better served by an appointment system than an electoral system? How could it be worse, one might wonder, irrespective of whether the justices on both sides decided these cases purely on the merits? In fact, could there be better examples of why the voters themselves, not presidents or governors, should make the decision as to who decides? Up goes the straw man. Now let's have some fun deconstructing it.

In the John Grisham novel "The Appeal," a Wall Street predator tries to buy the election for the next Supreme Court justice in the state of Mississippi. The underbelly of the electoral system is exposed as a bad-guy billionaire goes about rigging a judicial election and taking control of a seat on the high court, just in time to overturn a huge plaintiffs verdict in a mass tort lawsuit against his chemical company. The novel's tag line is "Politics has always been a dirty game. Now justice is, too."

It makes for good page-turning. But our judicial system's electoral process is not so dirty, surely. Justice is not for sale like in a Grisham novel. Elected justices are not stooges for corporate interests ... right? Things like that don't really happen in the majority of states (39) that elect their judges. Even after the Citizens United Court threw out a law restricting corporations and unions from funding ads for or against political candidates, corporate money won't sully judicial campaigns ... will it?

John Grisham's personal view that campaign contributions snuff out small-town justice is no secret. Grisham's take on it, per a pre-Citizens United interview on PBS' "Bill Moyers Journal," is that states with elected high court justices are biased in favor of the powerful and are unsympathetic to the rights of victims, consumers and criminal defendants: "Corporate America sells it ... as a way to protect business, economic development, economic growth [saying] -- Look at our state. We frown on lawsuits. We frown on unions. This is a good place to do business."

Post-Citizens United, the mood surrounding the issue of electing high state court justices shifted for many from increasing concern to full-blown dread. Many judicial authorities have stood up and denounced state judicial elections flat out. Retired U.S. Supreme Court Justice Sandra Day O'Connor is against having elected judges and has devoted much personal time to her quest for maintaining judicial independence through the appointment process. In addition, several of the sitting U.S. Supreme Court justices (including the majority opinion author of Citizens United) have voiced equally strong concerns that campaign contributions to judicial races can create the perception, or the reality, that judicial independence is undermined.

If the highest ranks of the judiciary are concerned that money in elections threatens the very institution and the fair administration of justice, people should listen. How can judicial elections be what Jeffrey Toobin called "the national scandal that few people really know about" if such stalwart public figures are speaking out so strongly? Like the bumper sticker goes: If you're not outraged, you're not paying attention.

So how far off are we from a Grisham novel? No doubt, elected judges are potentially susceptible to influence by political or ideological constituencies. But are deep pockets and political connections truly dominating a system corrupted by greed and big business? Well, consider the midterm campaigns to oust Supreme Court justices in various states, most notably Ohio, Illinois, Colorado, Alaska, Michigan and Iowa. Three Iowa Supreme Court justices were removed on Tuesday, through non-competitive retention elections (where a yes/no vote either approves an appointed judge or votes him out). This unprecedented rejection of three Iowa justices was supported by various conservative groups who effectively campaigned for a referendum against last year's Iowa Supreme Court decision that held unconstitutional the state's statutory ban on same-sex marriage.

This is a big deal. Not only do corporations now have the ability to fund campaigns to elect pro-business state Supreme Court justices to generally rule in Corporate America's favor, but special interest groups have shown they can finance ouster campaigns to take out justices (running unopposed, no less) whose opinions are disliked on the social issue-du-jour, like same-sex marriage or the constitutionality of "Obamacare." In this way, popular opinion can be used to dictate the outcomes of individual cases.

Do we label such efforts by the electorate as highly objectionable attempts to corral favorable ideological judgments or do we deem them part of an acceptable practice of voting one's personal philosophies? To even ask the question collapses all distinctions between political and judicial elections. It is disturbing indeed to think that many voters do not even purport to select judges based on their professional competence, i.e., their temperament for the job and their commitment to judicial neutrality and the rule of law. Court rulings are not legislation and justices should not be labeled activists if they do not follow popular opinion on all hot-button issues that come before the court. If citizens do not realize this, or do not care about securing a truly independent judiciary, we are in serious crisis mode.

We don't want our judges acting like some lawyers who hesitate to stand up to their clients for fear of losing the clients. If judges start to treat their profession as a business and hesitate to rule against their electorate for fear of losing their jobs, the administration of justice is compromised. And yet, more and more, elected high court justices are both being viewed and perhaps inevitably viewing themselves as service providers for their electorate. If we endorse this skewed vision, we risk seeing a decline in the exercise of fair and impartial judging due to a commercialization, creeping towards privatization, of the court system.

Given the inevitability of judicial candidates feeling beholden to various constituencies, no matter your politics, it should be clear that our long-term interests are not well served by elected high court justices. Until things change, however, we are going to have to live with the fact that political structures and challenging societal conditions influence the judicial arena. Nothing is foreordained, though, and we need not accept the argument for judicial deference to the principle of majority rule. Elected judges themselves say they don't want judicial positions to become political positions. Those of us in the system need to construct a response to the challenging conditions that face the increasingly commercialized legal world. Justice is not up for a vote. We cannot have judges running on party line platforms concerning active issues because the majority should not rule issue-by-issue or case-by-case. While this is hardly a controversial notion, it is outside the mainstream for some voters, ebbing into what Jon Stewart mockingly derogated as the agenda of those "unelected, lame-stream, activist judges."

This brings us back to our beginning straw man proposal: Don't we have the same problem with high-ranking appointed justices, viz., Bush v. Gore and Citizens United? While it has been argued by presidents (though not always believed by the citizenry) that there exist no litmus tests for Supreme Court appointments, it is expected that presidents will appoint those jurists who fit neatly with their own philosophies and political platforms. As Sen. Lindsey Graham shrewdly stated during Elena Kagan's confirmation hearing, she would not have been his choice, but the person who did choose, President Barack Obama, chose wisely. Elections always have consequences, even in judicial appointment systems. Of course, there have been some upsets, like George H.W. Bush's appointment of Justice David Souter, but this should comfort us with the reminder that the appointment-for-life system is always a bit of a crapshoot that can't ever be rigged.

While the vote splits in Bush v. Gore and Citizens United are troubling to some extent, the presidents who made the appointments of the majority justices in those cases didn't appoint them to garner favorable decisions in those individual cases. The presidents were popularly elected and were thus given a mandate, one can surely agree, to bring the Court around to their way of thinking on critical issues. That's what elective politics is all about. That's not what's at stake in Grisham novels or in those state judicial midterm ouster campaigns. What's at stake in those are fat cats or lobbyists bankrolling "their guys" and their campaigns to get them on the bench to serve their economic interests and loaded social agendas. That is intolerable and a judicial form of pay-for-play at its worst. Whether one actually supports or opposes the agenda or decision in question, we must recognize the ends are not justified when the means bestow an appearance of bias on, and undermine our confidence in, the very judicial system by whose decisions society must abide. Because if we lose that, we're all losers.

Katherine A. Helm, Ph.D., is a former law clerk to a U.S. Court of Appeals judge and a U.S. District Court judge. She is a current Law.com columnist and will soon be returning to private practice in New York City.

Most disturbing results of election 2010

LINK

In one of Tuesday's most disturbing election results, the losing candidates didn't even have opponents.

Three justices of the Iowa Supreme Court lost what is ordinarily a pro forma election to retain their seats. Not coincidentally, these justices were part of last year's unanimous ruling to strike down a state law defining marriage as between a man and a woman. Outside groups opposed to same-sex marriage, including the National Organization for Marriage and the American Family Association, poured hundreds of thousands of dollars into television ads and other efforts to deny them a new term.

"Activist judges on Iowa's Supreme Court have become political, ignoring the will of voters and imposing same-sex marriage on Iowa," said one commercial. "Liberal, out-of-control judges ignoring our traditional values and legislating from the bench.... Send them a message. Vote no on retention of Supreme Court justices."

Well, message sent -- and that is the problem. The Iowa vote is part of a larger phenomenon of the increasing politicization of judicial elections: more money, more attack ads, more intervention by outside groups, from trial lawyers to business interests.

This is an unavoidable result of states' decisions to give voters a say in judicial selection, whether through direct election of judges or retention votes. In 22 states, judges on the highest state court are chosen through elections and then either stand for re-election or face retention votes.

In another 16 states, high court judges are chosen in some other way, but voters weigh in on keeping them. Some of the most prominent champions of judicial independence, including retired Supreme Court Justice Sandra Day O'Connor, have pointed to this approach -- merit selection coupled with retention election -- as a model for insulating the judiciary for undue political influence.

But the 2010 campaign illustrates the downside of judicial accountability and the threat of growing politicization of retention elections. In Illinois, where Supreme Court justices are chosen through elections and then subject to a retention vote, the decision about whether to keep incumbent Chief Justice Thomas Kilbride turned into a multimillion-dollar battle in the wake of Kilbride's vote to overturn a state law limiting damages in medical malpractice suits. Kilbride won.

You might look at the Iowa results as a reasonable illustration of accountability in action. After all, what's the point of building in accountability unless you're willing to let voters hold judges accountable? But there is also a difference between giving voters the opportunity to remove judges who behave in inappropriate or unethical ways and letting retention elections turn into referendums on unpopular rulings. The courts may follow the election returns, but I don't want judges making rulings with an eye on their own electoral fortunes.

I happen to agree with the Iowa court's same-sex marriage decision, but I hope I'd feel the same way if the court had ruled in the opposite direction and gay rights groups fought to remove them. I vehemently disagree with the U.S. Supreme Court's campaign finance ruling in the Citizens United case, but those who suggest the impeachment of Chief Justice John Roberts for that decision are even more off-base than the critics of the Iowa justices. Oregon Democratic Rep. Peter DeFazio told The Huffington Post that he was "investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn't be a judicial activist." DeFazio can't be serious.

There is an inherent tension between independence and accountability. When it comes to the judges -- and when judicial activism is in the eye of the beholder -- the system needs to be rigged, as the founders wisely did, in favor of independence.

November 3, 2010

Ouster of Iowa Judges Sends Signal to Bench
By A. G. SULZBERGER, NY TIMES
LINK

Correction Appended

DES MOINES — An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.

The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions.

Leaders of the recall campaign said the results should be a warning to judges elsewhere.

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

But critics of the campaign, including those who see the courts as a protector of minority rights, said the politicization of uncontested judicial elections represented a danger.

“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”

Replacements for the three ousted justices will be appointed by the governor from a slate of candidates nominated by the State Judicial Nominating Commission and will have to stand for periodic retention votes, a system known as merit selection.

From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.

That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage.

But the risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday when voters chose to remove all three justices who were on the ballot seeking new terms.

Conservative groups this year launched similar campaigns in a number of the 16 states that use merit selection, targeting supreme court justices for rulings on abortion, taxes, tort reform and health care. Unlike the three in Iowa, however, those judges — in Alaska, Colorado, Kansas, Illinois and Florida — were all re-elected.

The number of challenges and the success of the effort in Iowa has caused some concern that retention elections designed to be as apolitical as possible are becoming as bitterly contested as other races. This year far more was spent on campaigns in retention elections than was spent in the entire previous decade, according to the Brennan Center for Justice at New York University Law School.

The ouster was reminiscent of a retention election in California in 1986 that led to the removal of three Supreme Court justices who were portrayed as opposing the death penalty.

“Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable,” said Joseph R. Grodin, a law professor who was one of the three California judges who lost a re-election bid. “But more than that,” he continued, “I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.”

The most sustained effort to oust judges in this election cycle was in Iowa, where out-of-state organizations opposed to gay marriage, including the National Organization for Marriage and the American Family Association, poured money into the removal campaign. Judges face no opponents in retention elections and simply need to win more yes votes than no votes to go on to another eight-year term. In Iowa, the three ousted justices did not raise campaign money, and they only made public appearances defending themselves toward the end of the election.

Each of the three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — received about 45 percent of the vote, making this the first time members of the state’s high court had been rejected by voters. The 71 lower court judges on the ballot all easily won re-election.

The justices’ removal will have no effect on same-sex marriage, which will remain the law.

The judges declined requests for interviews but released a statement that decried what they called “an unprecedented attack by out-of-state special interest groups.” The statement defended the system for selecting judges but offered what a veiled warning about populist impulses to remake the judiciary: “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

The defeat was a bitter disappointment to much of the legal community here, which rallied behind the justices, and it was viewed with particular concern in the gay community, which has found state courts more sympathetic than state legislatures.

“A lot of time we start in the courts because they’re there to protect the minority against the tyranny of the majority,” said Carolyn Jenisen, executive director of One Iowa, an organization supporting gay rights, “Because they’re there to make tough decisions without regard to popular opinion.”

Correction: November 5, 2010

An article on Thursday about a decision by Iowa voters on Tuesday to remove three of the state’s Supreme Court justices referred incorrectly to the composition of the State Judicial Nominating Commission, which will nominate replacements. The group includes seven nonlawyer commissioners appointed by the governor; it is not composed entirely of lawyers.


Conservatives love "results oriented judges" they agree with.
November 6, 2010


Judges Were Independent. Then They Were Defeated.

To the Editor:

We were pleased to see your front-page coverage of Tuesday’s electoral removal of three Iowa Supreme Court justices because they had ruled in 2009 that the State Constitution protected same-sex marriage (“Ouster of Iowa Judges Sends Signal to Bench,” Nov. 4).

When a judge suffers an electoral defeat because he or she exercised judicial independence, we all suffer. Despite that, in a post-election statement, the three justices — Marsha K. Ternus, the chief justice; David L. Baker; and Michael J. Streit — wisely reminded us that we must continue to create and support an independent, merit-selected judiciary.

While it is regrettable that the justices were defeated in a retention election not for judicial incompetence but for ruling in a way they believed was required under the State Constitution, we should not be deterred in our efforts to achieve a truly independent judiciary in New York. This means replacing the current election of judges with the adoption of a commission-based, merit-selected appointment system.

We are confident that this is the best way to select New York’s judiciary. Apparently, three departing judges from Iowa agree with us.

Samuel W. Seymour
President
New York City Bar Association
New York, Nov. 4, 2010

OIG Audit Targets Andrew Cuomo's HUD Overhaul

Audit Faulted Cuomo's HUD Overhaul

By JACOB GERSHMAN, WSJ
LINK

Andrew Cuomo points to his time as Housing and Urban Development secretary as a prime example of how he's made government more efficient and effective. But federal auditors say Mr. Cuomo oversaw a "poorly planned" overhaul of personnel that bulked up HUD's public outreach but undermined the agency's enforcement efforts.

President Clinton nominated Andrew Cuomo to head HUD in 1996.

During the gubernatorial debate on Monday, Mr. Cuomo touted his four-year record at HUD, saying he "shrunk government" and promising to do the same in Albany if elected governor. "The question in this race is who can actually do it. Who can get it done," he said.

While the number of full-time employees at HUD declined under his watch, Mr. Cuomo also added hundreds of high-paid positions as part of his "Community Builders" program, which came under withering criticism from HUD's veteran field staffs, federal auditors, and Republican lawmakers in Washington.

"The concept was not unreasonable. But it was very poorly implemented and the consequences were pretty near disastrous," said Robert Paquin, a former regional director of Community Planning and Development in HUD's Boston office.

The idea behind the program was to split enforcement and customer relations into separate ranks of employees. Between 1997 and 1999, Mr. Cuomo recruited nearly 800 Community Builders, including hundreds of high-paid "fellows" who underwent training sessions at Harvard.

The Community Builders acted as liaisons to city officials and community groups and reported directly to HUD's headquarters in Washington.

"What the Peace Corps is to global development, what Americorps is to local empowerment, we hope Community Builders will be to urban renewal," Mr. Cuomo said when he announced the initiative.

Andrew Cuomo's Political Path

Over three decades, New York Attorney General and Democratic gubernatorial hopeful Andrew Cuomo has charted a careful course through local, state and national politics. Here's a look at his life and career.

In 1999, the program was the subject of a scathing audit report by the HUD Inspector General's office, which recommended that it be terminated.

Congress eliminated its funding that year, over the objections of several Democratic lawmakers, including Sen. John Kerry and now-Vice President Joe Biden.

The audit report said the hiring of the Community Builders skirted federal protocols, siphoned funds away from grant-monitoring activities and caused "significant morale problems" among some career civil servants, who bristled at the higher pay grades awarded to the new employees.

"HUD chose an overly expensive and controversial solution that exacerbated any existing problem," the audit said.

Mr. Cuomo and former aides at HUD said the allegations were unfounded, and fiercely defended the program. "The attacks on the Community Builders program were partisan in nature and wholly without merit," Howard Glaser, deputy general counsel under Mr. Cuomo at HUD, said Friday.

Mr. Glaser pointed to positive reviews of the program by consulting firms hired by HUD. Officials at the Inspector General's office said the other reviews did not contradict the office's claims, and noted that they relied on case studies pre-selected by HUD's senior management.

The Inspector General's audit report also claimed that senior officials under Mr. Cuomo sought to impede investigators examining the program and took the unusual step of asking the Inspector General's office for the names of HUD employees who spoke with auditors.

Several HUD employees "feared reprisal" and urged investigators to keep their communications confidential, according to the audit report.

Mr. Paquin, who was transferred to a lower-level position in 1999, returned to his old job years later after filing a complaint with the U.S. Office of Special Counsel alleging that his transfer was prompted by testimony he gave to the U.S. Government Accountability Office, which conducted a separate review of HUD's overall monitoring activities.

The Inspector General's report said HUD could not adequately justify the number of Community Builders hired nor their salaries, which in many cases were tens of thousands of dollars higher than the pay given to veteran civil servants who monitored HUD's grantees.

"HUD allocated a large amount of its resources to outreach and customer relations in the form of higher grades, travel and training funding, and personnel," the report stated.

More than half of the Community Builders interviewed by the auditors said they spent most of their time on public-relations activities.

"Considering that 228 Community Builders came from HUD's monitoring side, there is an appearance HUD favors the outreach and public relations over the monitoring and compliance function," the report said.

The Community Builders interviewed by the auditors lacked knowledge of HUD's grant programs, the report said, and in some cases improperly interfered with housing transactions between local officials and nonprofit groups, resulting in the loss of millions of taxpayer dollars.

HUD, in its response to the 1999 audit, said the report was "misleading" and denied that the agency had violated hiring protocol.

It noted that the program was widely praised by local officials and others interviewed by Ernst & Young, which was under contract with HUD to conduct an interim review.

The audit report faulted HUD for using the Community Builders to carry out a public-relations campaign on behalf of HUD when Congress threatened to slash the agency's budget. Senior officials directed the employees to reach out to local media and "arrange press conferences, conference calls, and telephone interviews," the audit said.

The Inspector General's report also said Mr. Cuomo's staff took unusual steps to hinder its review, stating that HUD senior management "told employees not to talk to us during our planning stage" and "circulated 'questions and answers' for employees to use when we interviewed them."

Investigators said senior HUD officials also asked the Inspector General's office to identify the HUD employees interviewed by auditors.

"When the request came in, everyone wondered why the department needed it. Why do they need to know who spoke with the auditors?" said a person who was with the Inspector General's office at the time.

Saul Ramirez, a deputy secretary under Mr. Cuomo, said the request for the names was "standard procedure" and intended to help headquarters organize the schedules of field staffers involved in the auditing process.

Write to Jacob Gershman at jacob.gershman@wsj.com

Andrew Cuomo and His Deadly Court Cartel

Andrew Cuomo

AG Candidate Carl Person:CUOMO HELPED TO CREATE THE MORTGAGE FRAUD

Posted on October 10, 2010 by Ron Moore
LINK

According to Libertarian Attorney General candidate Carl Person, Andrew Cuomo , as HUD Secretary helped to create the mortgage fraud and predictably has done nothing to stop banks from using false affadavits. Person says “Andrew Cuomo has a duty as NYS Attorney General to start lawsuits to stop Bank of America, JPMorgan Chase, GMAC, Countrywide, Wells Fargo and other lenders from using the New York courts to foreclose mortgages on homeowners in NYS.”

Person explained that “these banks and lending institutions have been filing false affidavits in New York foreclosure actions for several years and have been illegally obtaining judgments of foreclosure and illegally selling the homes of many tens of thousands of homeowner victims.” Presently, there are approximately 80,000 foreclosure cases in the New York courts, with more being filed every day.

“Cuomo is trying not to get involved”, said Person, “because he helped to create the mortgage fraud when he was Secretary of Housing and Urban Development (HUD).” Person also stated that “Cuomo should have recused himself and let someone else in his Office of New York State Attorney General be assigned the responsibility for ensuring that mortgage foreclosure fraud is stopped in NYS.”

Person went on to say that the banks, servicing companies, and other participants in the illegal activities should be penalized by not being able to use the New York courts to commence or pursue any foreclosure actions in New York State as to any residential mortgages, and that the banks should not be able to assign the residential mortgages to anyone else for the purpose of starting foreclosure proceedings in New York State.

What needs to be done, according to Person, “is to require the banks to enter into modification agreements with residential homeowners decreasing the monthly payment to the current low mortgage rate of 4.5% or so and decreasing the principal amount of the loan to 90% of the present value of the property.” As to each property for which this takes place, the bank would then be able to enforce the modified mortgage in the New York courts.

“Everyone can see that Cuomo is unable to serve honestly as New York State Attorney General, and this should disqualify him from becoming Governor of New York State,” according to Person.

Cuomo’s running mate for NYS Attorney General hasn’t done anything in Albany to stop the fraud, and can be expected to do nothing except benefit the banks.

Person said “If elected, I would commence the needed lawsuits to stop this devastating fraud on the NYS courts and homeowners.”

From Betsy Combier: If the banks dont condemn your property, then the Courts will. It's all the same land grab. Is anyone checking into Andrew Cuomo's connections to New York State Surrogates Courts, where property of the dead are grabbed from the next of kin by the State under color of law?

In Defense of Eminent Domain
Michael Cardozo, Corporation Counsel, Columbia Law Review

NY Court of Appeals Upholds Eminent Domain
Posted on November 24, 2009 by Mark Axinn
LINK

From the Institute for Justice:

WEB RELEASE: November 24, 2009

Media Contact:

Christina Walsh (703) 682-9320

Arlington, Va.—The New York Court of Appeals, the state’s highest court, today announced that it would uphold the decision of the Empire State Development Corporation (ESDC) to condemn privately owned homes and small businesses to make way for wealthy developer Bruce Ratner’s so-called “Atlantic Yards” development of 16 mammoth skyscrapers centered around a basketball arena.

“Today’s decision puts homes and businesses throughout New York at risk of condemnation,” said Dana Berliner, a senior attorney at the Institute for Justice (IJ), which filed a friend-of-the-court brief in the case. “Courts have a duty to look carefully at the government’s claim that it has the right to take someone’s home or business, and the Court of Appeals has simply refused to do that.”

While upholding the taking, the New York court did not go so far as to embrace the United States Supreme Court’s much-maligned reasoning in the 2005 Kelo v. City of New London case, which held that the U.S. Constitution allows governments to condemn property for economic development alone. Instead, the Court found the takings were for a “public use” because of the ESDC’s determination that the area to be condemned was “blighted”—a determination that was based on a study paid for by the would-be developer and not even initiated until years after the Atlantic Yards project was announced.

In a dissent, Judge Robert Smith excoriated the majority for abandoning its duty to critically examine the ESDC’s assertions. “To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause,” Judge Smith wrote. “I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.”

“The developer’s study did not find anything a normal person would call ‘blight,’” explained Berliner. “Instead, it found that the neighborhood was ‘underutilized’—in other words, that the developer could think of bigger things that could be built where these homes and businesses are. If that is all that is necessary for condemnation, then literally every piece of property in New York is at risk.”

The majority’s opinion frankly acknowledges that the court may be opening the door to “political appointees to public corporations relying on studies paid for by developers . . . [as] a predicate for the invasion of property rights and the razing of homes and businesses.” But, it says, preventing such abuses is not the job of the courts, advising New Yorkers to look to their legislature to fix any problems.

“New York is one of only seven states that has failed utterly to pass any kind of eminent-domain reform in the wake of the Kelo decision, and today’s opinion will only make things worse,” said IJ Staff Attorney Robert McNamara. “The state courts are looking to the legislature to fix the problem, while the legislature is apparently looking to the courts. And that means more and more New Yorkers will be looking at condemnation notices.”

“Property rights are as sacred to citizens of New York as they are to Americans nationwide, and New Yorkers have rightly looked to their courts to protect those rights,” concluded IJ President and General Counsel Chip Mellor. “Today’s opinion should be a clarion call to the state legislature that they cannot avoid this issue any longer. Now is the time to give state residents the reform and protections they desperately need.
 

Assemblyman Vito Lopez Harasses Women For Votes

Vito Lopez caught on tape browbeating Brooklyn grannies for votes

By JOSEPH GOLDSTEIN, NY POST, September 19, 2010
LINK

Assemblyman Vito Lopez bullied and cajoled eight little old ladies during an arm-twisting session aimed at getting them to back his candidate in a Brooklyn judicial race, a shocking audiotape obtained by The Post reveals.
"I'm not a fool or stupid, all right?" the Democrat railed at the elderly community leaders. "I can't always give and get smacked, give and get smacked . . . I am the political leader."

The May 2005 conversation, captured on a hidden recorder, not only exposes the 69-year-old Lopez's heavy-handed tactics in dealing with his core elderly supporters but also offers a rare glimpse into the backrooms of bare-knuckle Brooklyn politics where Lopez reigns.

"I've been around a long time," Lopez tells the women. "And the only thing that's worth credibility -- the only thing I have that's worth something -- is the politics. That's how I get the money."

RAW AUDIO: LOPEZ THREATENING OLD LADIES FOR VOTES


Lopez called the hourlong meeting at his district office to get the women to support civil court judicial hopeful Richard Velasquez -- once a lawyer for the senior-center nonprofit empire Lopez founded -- in his race against lawyer Marty Needelman. The election was seen as a leadership test for Lopez, who was on the verge of becoming the Democratic Party boss for all of Brooklyn.

He explosively references this power play -- and the competition between Hispanics and Hasidim in the area over housing -- at one point blurting, "If no one respects my leadership, how do I fight the Hasidim?"

The Spanish-speaking women all came from South Williamsburg, where Needelman was popular with Hispanics. Lopez explains he needs Velasquez to win because "I made a pledge to people that the next [judge] would be Hispanic, right? To balance it."

The women aren't swayed, telling Lopez that they like Needelman and that voters don't care about race or, for that matter, the fact that Lopez is "Italiano."

Lopez uses strong-arm tactics, repeatedly mentioning two upcoming taxpayer-funded trips he hosts, suggesting only supporters can go.

"I want to take people on the trip who really don't like me?" he says. "I mean, that's stupid, right? That's what I'm trying to say."

Lopez then hints to one of the women, who had worked as a $225-a-day poll worker, that only Velasquez supporters will get the coveted gigs on Election Day. Poll workers are legally prohibited from trying to influence voters.

"If I put people in the polls to be poll watchers and the candidate that [Lopez's political] club backs is not backed by those people, how can I do that?" he says.

Later, he says, "Either people are with the club or not with the club."

At one point, Lopez suggests that if the votes for Velasquez fall short at PS 19, the polling site nearest the women, he will punish the entire neighborhood.

"Say Richard Velasquez wins, and most people think he will. He wins. But the only place we lose is over here, 19. If you're me, who do you help out? Do you help out the area around here, or do you help the people in Lindsay Park? It changes everything to me," he says.

In October 2005, five months after the meeting, Lopez was anointed Brooklyn's Democratic Party chair, promising to "bring political respectability" and judicial reform.

Velasquez, who had been rated "not approved" by the city Bar Association, was elected to the bench a month later.

But Lopez's efforts to recruit the women did not pay off.

Needelman -- who told The Post that Lopez once considered him "part of the family" but became "obsessed with total control" -- won easily at the PS 19 polls.

Additional reporting by Brad Hamilton and Sarah Ryley

Vito Lopez's tangled ties to shady charity are undeniable

By SARAH RYLEY and JOSEPH GOLDSTEIN, NY POST, Sept. 19, 2010
LINK

Assemblyman Vito Lopez claims he has nothing to do with the Ridgewood Bushwick Senior Citizens Council, a sprawling social-service cash cow that has received at least $304 million in taxpayer funds over five years and is under investigation for fraud.

But Lopez's ties to the organization he founded as a young social worker in the 1970s still run deep:

* His girlfriend, Angela Battaglia, is the organization's No. 2 official, making $329,910 a year. His campaign treasurer, Christiana Fisher, is its executive director and has a $659,591 salary for working only 17½ hours per week.

* Lopez was personally paid $57,600 as a consultant in a single year by Ridgewood Bushwick.

* Lopez's Bushwick Democratic Club operates out of a grimy building on Wyckoff Avenue owned by one of Ridgewood Bushwick's three dozen subsidiaries, which claims on tax forms to operate the building to provide "respite services" for senior citizens.

* The thousands of constituents of Ridgewood Bushwick and its 2,000 employees form the core of Lopez's political machine in north Brooklyn.

* Former Ridgewood Bushwick employees, including Richard Velasquez and Pam Fisher, have become Brooklyn judges with Lopez's support.

* As an assemblyman, Lopez has steered at least $335,000 in member items to Ridgewood Bushwick since 2009.

* He hosts Ridgewood Bushwick's signature taxpayer-funded events, including its massive seniors picnic in Long Island and its Thanksgiving and Christmas dinners.

* He allegedly told a political ally who was starting a nonprofit to follow Ridgewood Bushwick's model when selecting a board: "You want a bunch of 80-year-old people and get them together." The Post has revealed that the elderly members of Ridgewood Bushwick's board exercised little oversight of the group.

* Ridgewood Bushwick has built and manages hundreds of units of affordable housing, which Lopez helped fund with city and state subsidies using his influence as chair of the Assembly's Housing Committee.

Vito Lopez

Friends of Vito Lopez have a leg up when it comes to jobs as judges, even if 'unqualified'
BY Greg B. Smith, DAILY NEWS STAFF WRITER , Sunday, September 19th 2010, 4:00 AM
LINK

When it comes to landing a job as a judge, friends and cronies of Brooklyn Democratic boss Vito Lopez have a leg up - even if they've been rated unqualified, a Daily News review found.

In the last few years, lawyers close to the Brooklyn assemblyman have repeatedly won coveted jobs in various courts.

That includes his daughter, his girlfriend's brother, and employees and relatives of employees of the nonprofit he controls, the Ridgewood Bushwick Senior Citizens Council, records show.

In some of these cases, voters had no idea the candidate they'd elected had been deemed unworthy of the job by state, city or county judicial screening panels.

Lopez became party boss in 2005 after the conviction of his predecessor, Clarence Norman, on corruption charges - including extorting judicial candidates.

One of the Supreme Court justices then sitting on the bench, Louis Marrero, had just been reelected after the Brooklyn bar had deemed him unqualified.

Lopez, who as party boss has enormous control over who winds up on the ballot, continued this tradition.

Judicial candidates are able to seek the seal of approval from screening panels run by the state, city and borough bar associations. If they don't, their opponents can use this against them, and the Brooklyn bar deems them "not approved" by default.

Voted onto the ballot by local party functionaries called judicial delegates, candidates who win the Democratic line are all but assured victory in the overwhelmingly Democratic borough.

Here's the Lopez lineup in courts stretching from downtown Brooklyn to eastern Long Island:

Pamela Fischer is the sister of Ridgewood Bushwick executive director Christiana Fischer. She had little legal experience when Lopez backed her for Civil Court last year.

The city bar association deemed her "not approved" for failing to demonstrate "the requisite qualifications for the court." The Brooklyn bar ruled her "not approved" because she wouldn't submit to the screening process.

She ran unopposed for the $125,000-a-year job. One voter scribbled in a write-in candidate named, "Someone Qualified."

Richard Velazquez was legal counsel to Ridgewood Bushwick when he ran for Civil Court in 2005 with Lopez's backing. Then in 2008, he decided to go for a better job, Supreme Court justice.

In 2008, the city bar deemed him "not approved," although the Brooklyn bar contradicted that finding and called him "approved." He won what's now a $141,000-a-year job.

Former City Councilman Noach Dear had little legal experience when he ran for Civil Court in 2007 with Lopez's support

Going into the race, Dear found himself "not approved" by the city bar, while his Republican opponent, James McCall, was "approved." No problem. Dear beat out McCall 8,281 to 4,489.

Some judges don't bother with voters. They're appointed by politicians. That's what happened with Lopez's lawyer daughter, Gina Lopez-Summa.

In 2006, then-Gov. George Pataki awarded Lopez-Summa a one-year appointment as a Court of Claims judge on Long Island. She stayed on after her term expired, and Gov. Paterson reappointed her for a nine-year term in April 2008.

Before the plum job was handed to his child, Vito Lopez, a lifelong Democrat, endorsed Republican Pataki.

Jack Battaglia was deemed "approved" by both the city and Brooklyn bars - but he had something else going for him when he ran for Civil Court in 2001 and Supreme Court in 2006.

He's the brother of Angela Battaglia, Lopez's longtime girlfriend and the housing director of Ridgewood Bushwick.

The judge made headlines when he sued the city in 2008, a year after he slipped and fell in the courthouse. As it happened, the case was assigned to another Lopez judge. The case was reassigned to another judge after The News noted the connection.

Sometimes it works the other way: The News found two "not approved" candidates who were endorsed by a rival political group that has taken on Lopez.

Lawyer Devin Cohen was deemed "not qualified" by both the city and Brooklyn bars when he beat Lopez's candidate for Civil Court judge in 2008.

And this year, a judicial panel run by the state's appeals courts found candidate Harriet Thompson "not qualified."

Thompson, a lawyer for tenants and landlords who has been endorsed by reform Democrats, has yet to be rated by the city and Brooklyn bars.

Still, when Election Day arrives in November, it won't really matter: She's the only Democrat running for the job.

gsmith@nydailynews.com

Columbia Journalism Review Sues To Obtain Governor Paterson's Office Emails

Why We’re Suing
Let’s see those e-mails, governor
By The Editors of Columbia Journalism Review
LINK

Today, the Columbia Journalism Review will file a lawsuit in an Albany court, seeking to compel New York state to properly fulfill its duties under the state’s Freedom of Information Law—duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.

Here’s how we got to this point. Way back on March 4, Peter Kauffman, Governor David Paterson’s director of communications, resigned, saying that as a former Navy officer he took “integrity… seriously” and that he could not “in good conscience continue in” his position.

His departure came in the midst of one of the one of the strangest chapters in New York’s recent political history. For weeks, the actions of the governor and his staff had been subject to an aggressive investigation by reporters from The New York Times, in the wake of a domestic violence case involving one of the governor’s most trusted aides. While the paper worked its sources, Albany’s rumor mill went into overdrive about the coming article, presumed to be a bombshell. Would it be hookers? Cocaine? Bribe taking? All of the above? With assists from social media and a hyperactive press corps, such speculation burst into the state’s political conversation.

Kaufmann’s resignation reminded Clint Hendler, our staff writer who specializes in politics and government transparency issues, of two recent public records requests. In 2009, just after South Carolina governor Mark Sanford’s staff told the press that their out-of-pocket boss was off “hiking the Appalachian Trail,” John O’Connor, a reporter at The State, filed an open records request that netted e-mails between reporters and the governor’s press office as the scandal brewed. That ingenious reporting trick inspired John Cook, then a reporter with Gawker, to file with New York for 2008 e-mails between former governor Eliot Spitzer’s press secretary and reporters, in the period immediately around his prostitution meltdown.

The documents yielded by both these requests contained some interesting nuggets, showing reporters aggressively angling for information and exclusives and revealing some of the tactics used by press secretaries to manage coverage. So Hendler thought that Kaufmann’s e-mails might be worth a look, and, the afternoon of his resignation, submitted a request under New York state’s Freedom of Information Law (FOIL) for the last seven weeks of e-mails between members of the press, Kaufmann, and his deputy, press secretary Melissa Shorenstein. When Shorenstein also resigned two weeks later, saying she’d been “unwittingly” caught up in the scandal, Hendler filed an amending request seeking similar e-mails through the time of her departure.

The requests—technically in Hendler’s name—entered an acknowledge-and-delay phase familiar to most anyone who has used freedom of information laws, until April 29, when, despite finding over 2,300 responsive e-mails, the executive chamber wrote us to say that, by the state’s reasoning, the public can’t see a single one of them. An administrative appeal garnered nothing further.

So we’re suing.

Why? Well, let us count the ways. First, we’re journalists, and we don’t like taking no for an answer.

More seriously, the records we’re seeking would likely help illuminate the press’s role in a bizarre chain of events in state history that led to the appointment of an Independent Counsel and to the governor dropping his election campaign. Sure, there will be lots of chaff in those e-mails. But perhaps they’d offer some information explaining the resignations, show reporters testing the most bizarre theories circulating at the time, or catalogue an evolving damage-control line from the state’s highest official.

Any of that would all be potentially interesting, and that’s why we will exercise our rights under the law and file suit.

But given the response from the governor’s office, we now also think this suit must be waged to protect the full force of two laws that the state’s press corps rely on: the Freedom of Information Law and the state’s shield law. As we argued in an editorial headlined “Shield Abuse” in our July/August issue, we like freedom of information laws and we like shield laws. We don’t like it when the latter is cynically pitted against the former, in a way that could ultimately damage the shield.

The governor’s office’s denial letter (pdf) gives two rationales for withholding the records. The first suggests that the e-mails would “reveal competitively sensitive information.” The law does allow the state to hold back private businesses information they may hold on the order of trade secrets—manufacturing formulas, for example—but, in this case, that rationale is silly. The state is claiming that the e-mails—none of which are less than five months old—might reveal proprietary lines of reporting, sources, or “methods used by reporters to conduct their research.” Proprietary methods like e-mailing the governor’s communications staff for information or comment? Please.

The other rationale is, to give it credit, at least more creative. The FOIL statute allows the state to withhold documents that other portions of state law demand be kept private. In this supposed spirit, the governor’s office has denied the records by citing the state’s shield law, which can offer journalists, depending on the circumstances, protection against being held in contempt for refusing to comply with a subpoena.

On its face, that won’t fly. The shield law protects journalists from subpoenas about their sources and reporting. It does not protect sources from being compelled to testify. Expanding its protections to sources—especially to government sources, paid by taxpayers, and acting in their official capacity—would pervert and dilute the law. Besides, any talk of testimony is entirely besides the point here. The FOIL process is not a subpoena, and the shield does not protect public records—even if those records reflect some aspect of a journalist’s communication with a public official—from being disclosed pursuant to a proper records request.

Amazingly enough, it wasn’t long ago that the Paterson administration would have agreed with us. Remember John Cook and his 2009 request for Governor Spitzer’s press secretary’s e-mails? It was fulfilled without complaint by the Paterson administration, without any exemptions claimed. But once FOIL’s requirements were trained on Paterson, and threatened to expose something about the operations of his staff, his lawyers found reasons to deny.

Who knows exactly what a fulfilled request would reveal? But it already has revealed something about how freedom of information requests are sometimes handled by governments, who can deny on slim or specious legal grounds with the bet that the requester will throw up their hands, frustrated by the expense and hassle of taking the government to court. It’s a cynical ploy that frustrates the public and the press’s right to know.

And luckily, that won’t be the case here, thanks to our lawyers at Friedman & Wittenstein, who have generously agreed to take the case at no charge to us. Instead, they hope to recoup their costs under a provision of New York’s FOIL allowing plaintiffs to bill the state if the judge finds that a denial was especially capricious.

And if that’s the standard, we like their chances.
CJR sues to disclose N.Y. governor's office's e-mail messages
LINK

The Columbia Journalism Review today filed suit to compel New York state to release several weeks’ worth of e-mail messages among Gov. David Paterson’s former director of communications, Peter Kaufmann, Kaufmann's deputy press secretary, Melissa Shorenstein, and the media.

The governor’s office on April 29 refused to reveal the roughly 2,000 e-mail messages responsive to CJR’s freedom of information request, claiming that those public records were exempt by law – citing the New York shield law, which provides a state reporter's privilege.

Clint Hendler, a CJR reporter, had previously requested the government e-mail messages under New York’s Freedom of Information Law (FOIL). Kaufmann resigned on March 4, 2010 citing issues of “integrity” following a political dust-up in which reporters were investigating accusations that an aide to Gov. Paterson, David Johnson, was involved in a domestic violence dispute. Shorenstein resigned two weeks later.

While the governor's office cited the New York shield law as a basis for withholding information, state shield laws in fact exist to ensure the flow of news and information to the public and to protect an independent press; indeed, the proposed federal shield legislation is entitled the “Free Flow of Information Act.” This particular privilege from producing documents or testifying is referred to as the “reporter’s privilege” because it belongs to a reporter to assert, not to the government as a means to prevent it from disclosing public information.

The denial also cited portions of “commercially sensitive” information in the messages as additional grounds for denial.

CJR wrote that it is suing to “compel New York state to properly fulfill its duties under the state’s Freedom of Information Law — duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.”

Columbia Journalism Review is being represented pro bono by the New York law firm of Friedman & Wittenstein.

— Cristina Abello

Behind the News, Transparency — April 29, 2010 06:59 PM
An Attempted FOIL

NY governor’s office denies CJR’s records request
By Clint Hendler, CJR

LINK

Late this afternoon I got an email from the New York governor’s office initially denying a pair of requests I filed in March under the state’s Freedom of Information Law.

The subject of said requests? All emails between the governor’s two top press aides and journalists sent between January 15, 2010, and the dates in March when the flacks resigned their positions. As you may recall, in that period of time the governor and a top aide were under the aggressive investigative lens of The New York Times. The paper was examining the aide’s record of domestic abuse, and accusations that the governor and members of the state police discouraged the aide’s girlfriend from filing domestic abuse charges after an apparently violent incident that the governor office originally described as a “bad breakup.”

You may also recall that in the run up to the Times’s blockbusters on the scandal, almost all of New York’s press corps got swept up in rather uninformed and all too public speculation about a story that the Times hadn’t run yet.

Where there are rumors, there are press secretaries called upon to deny them, and for that reason among others, I thought it would be interesting to get a peek at what the flacks were getting and giving in those hectic days.

Credit for this idea goes to John Cook, a reporter now with Yahoo! News. While working for Gawker, he had filed a similar request with the Paterson administration for emails sent and received by Governor Eliot Spitzer’s press secretary during his dissection by the Times. (Cook, in turn, credits South Carolina’s The State, which filed the same kind of request when Governor Mark Sanford was not hiking on the Appalachian Trail.)

Today the governor’s office denied my request. (They also, it turns out, just denied a similar, though apparently narrower, request made by John Cook.) Here’s a PDF laying out the legal reasoning behind one of the denials. (The two letters are essentially identical.) The governor’s lawyer offers two arguments, both of which, let’s note, Paterson’s lawyers didn’t find fit to cite when it was Spitzer’s press secretaries’ emails on the line.

The first is that the governor’s office claims that New York’s state’s shield law forbids emails to be released because they are “the work product of journalists.” If you look at the denial letter, you’ll note that Jeffrey Pearlman, the lawyer who signed the denial, doesn’t cite any text from the state’s shield law in making this argument. I think I have an idea why: there’s not a word in the law to support this claim. The law protects journalists from being held in contempt if they themselves refuse to reveal their sources, unpublished information, and other work product as the result of a court or legislative subpoena. It doesn’t protect other people who may possess information about a journalist’s work. I can’t imagine the governor’s office being able to offer a plausible defense of this argument.

The second argument is perhaps more colorable—though that’s not saying much. Pearlman suggests that the information, sources, and methods of reporting described in the emails would if disclosed “cause substantial injury to the competitive position” of the news organization employing any given reporter. But “substantial injury” is a high bar, and it’s hard to see how months-old emails between the governor’s official press staff (no Deep Throat there) and the working press would have much content that could clear it.

It will be interesting to see how well these arguments hold up should I—or Cook, or any other reporter out there who may have asked for the emails—decide to seek an administrative appeal, or involve New York state’s ombudsman-like Committee on Open Government, or the courts.

I have a guess

NYS Appellate Court in Albany: "Deliberative Process" Exemption To FOIL Applies To Federal/State Communications

Robert Freeman, Director, Committee On Open Government

New York appeals court expands scope of records exemption
LINK

A New York appellate court in Albany on Thursday ruled that the "deliberative process" exemption to the state's freedom of information law ("FOIL") applies to communications between federal and state officials. At issue in the case were records sought by a Saratoga County water district relating to a water supply option report developed by General Electric Co. as part of its efforts to remediate contaminated portions of the Hudson river. New York state officials, in conjunction with the U.S. Environmental Protection Agency, had co-regulatory authority over the cleanup project.

Water district officials expressed concern that plans to dredge upriver portions of the Hudson river to remove hazardous PCB sediments could negatively affect the local water supply. They therefore requested the disclosure of a variety of documents under FOIL related to the proposed remediation plan, including some communications between EPA and state officials.

The state refused to disclose certain records, claiming that they constituted intra-agency or inter-agency pre-decisional deliberative materials that were exempt from disclosure under the law. FOIL provides for such an exemption on the grounds that pre-decisional communications exchanged internally purely for discussion purposes should be protected in order to promote frank and open discussion.

The water district argued that the inter-agency and intra-agency confidentiality protections only covered an "agency" as that term was defined under FOIL. FOIL limits the definition of an "agency" to state and municipality entities thus arguably not covering communications with federal bodies such as EPA. The lower court agreed with the water district's reading of the law.

The appeals court, however, disagreed. It first recognized that neither "inter-agency" nor "intra-agency" were defined under FOIL and that prior case law has interpreted these terms to include certain non-state entities despite how the term "agency" is defined under the same law. The court went on to rule that the proper test to uphold the intent of the deliberative process exemption "can only be served by focussing on the nature of the relationship that exists between the entities, and asking whether the communication in question is exchanged as part of the deliberative process in government decision-making."

Applying that test, the court noted that the relationship between federal EPA and state officials "has existed for more than 25 years" and was in place due to statutory and contractual obligations that required cooperation. "In terms of this project, [New York state] and the EPA share a common objective, and by law as well as by contract are required to work as one unit to achieve that objective," the court stated.

The court then ordered the lower court to conduct a review of the documents at issue to determine which, if any, of the withheld documents constituted deliberative process communications. In addressing a separate claim, the court also ruled that certain settlement negotiation documents were improperly withheld, finding that the state failed to provide any specific legal basis supporting non-disclosure.

In dissent, one member of the court noted that the majority's decision "thwarts the basic premises that FOIL is to be construed liberally, that government records are presumptively available for public inspection, and that exemptions are to be construed narrowly." The dissent goes on to highlight the limited definition of an "agency" under FOIL and notes that the state Committee on Open Government (a persuasive but non-binding authority) has previously — and correctly — found that communications between the state and EPA are not covered under the deliberative process exemption.

The dissent also distinguishes prior case law holding that certain non-state, non-municipality entities can qualify for deliberative process protection by stating that such inclusion had previously only applied when the non-state actor was in a consulting position. Here, the dissent found the EPA to be acting with independent authority.

— Mark Caramanica

Copyright 2010 The Reporters Committee for Freedom of the Press.

Blast From The Past: Tom Robbins on Picking Judges, 2007

Judith Kaye

One of the most corrupt judicial processes in America is right here in New York City: picking judges for the New York State (and Federal) courts.

Citizens, this is where the money passes from palm to greased palm. More at a later date, but for your reading pleasure, here is the article published by the Village Voice in 2007:

Benchwarmers
Everything you never wanted to know about picking judges for an important court you've never heard of
Tom Robbins, Village Voice, July 17, 2007
LINK

I was warned against writing this column.

Details:
"You might think twice about doing that judges story," were the exact, ominous words.

OK, the threat came from my editor, who added: "Nobody cares how judges get picked. Where is that S&M piece you promised?" I did not knuckle under. As you may know, this paper is currently owned and operated by out-of-towners and recent transplants, so I was able to convincingly argue that, aside from rent hikes and Alex Rodriguez, there is no subject New Yorkers get more passionate about than the selection of appellate judges. Please do not cross me up on this.

Here, then, is the unvarnished truth—which only the Voice will tell you—about how New York came to select a rookie judge with a powerful ally as the presiding justice for the busiest and most powerful appeals court in the state.

Already you're thinking, "Appellate court? Presiding justice? Alex Rodriguez?" Bear with me. Part of the problem here is the purposely obscure nomenclature employed by lawyers, who are the only ones who really do care about judges. They care so much that they see the judges' faces in their Grape-Nuts every morning. They address their cereal, practicing small, obsequious remarks like: "Heard Your Honor hit a par four last week. Nice."

Many people erroneously assume that the state's most important court is the Court of Appeals in Albany, which supposedly settles all the big cases. See? You're already the victim of legal obscurantism. Albany? Are you kidding? The state's most important court is right here where it belongs, in Manhattan, at the corner of Madison Avenue and East 25th Street, where is found the magnificent marble headquarters of the Appellate Division, First Judicial Department.

The few non-lawyers who stumble across this structure are immediately struck dumb by the big Greek columns and the statues of half-naked men and women on the roof. This is a building for judges and lawyers only; jurors are not allowed, not only because no jury trials are held here, but because they would befoul the building with dark splotches of chewing gum and half-completed Sudoku puzzles. Oh, yes, there is a also a cadre of heavily armed court officers who are charged with keeping jurors out and making sure there are parking spots for the 16 appellate judges who work here.

You are wondering: Why do they need to drive? What are they, firefighters? This is another sad example of reader ignorance. The former governor, George Pataki, a Republican from Putnam County (I can only tell you it is near the Taconic Parkway), recognized after taking office that New York City's appellate courts were severely segregated. Local judges, overwhelmingly Democrats, held most positions. To remedy this outrage, Pataki commenced a bold integration scheme in which he bussed in judges from upstate to sit on the city's appeals courts. Surprisingly, most of his choices were white Republicans like himself. Opponents of this measure complained (quietly, so as not to be seen as bigots) that the imports were generally of a lower IQ than the locals. Plus, they took up all the parking spots because, of course, they didn't really take a bus to work.

This was the situation that greeted newly elected governor Eliot Spitzer (a Democrat from Manhattan, though he also has a residence in Columbia County, apparently farther up the Taconic). It was day one and everything had to change, so he got right to work on the appellate courts, starting with the First Department in Manhattan, because it handles all the most important cases. Would you want some hick court in Elmira ruling on the likes of High Risk Opportunities Hub Fund Ltd. v. Credit Lyonnais? Of course not.

Spitzer's first task was to appoint a new presiding justice, an opportunity that made the governor's people ecstatic. This plum had fallen into their laps thanks to a display of stunning ingratitude by one of Pataki's own picks. Everyone knew that Pataki had intended, on his way out of office, to name his pal and former counsel, Justice James McGuire, to this top job. McGuire had been especially helpful to Pataki when a federal grand jury in Brooklyn began asking why his administration had granted parole to felons whose parents gave a lot of money to his campaign. McGuire did well: Only a couple of Koreans and some low-level parole aides were convicted.

If he'd been appointed, McGuire would have held this post until 2018, making him Pataki's proudest legacy. (OK, his only legacy.) Sadly, this plan fell apart when the then-presiding justice, one John Buckley, an import from Oneida County (no idea, look it up), refused to step down. Buckley was reluctant to do so because he would've had to go back to wherever Oneida County is. December 31, 2006, came and went. Buckley was still there. This gave Spitzer the right to choose the new presiding justice when Buckley turned 70, which he soon did.

(To quickly recap: The presiding justice runs a big building with Greek columns where many important legal cases are heard and where you, in all likelihood, will never enter.)

Because he wanted to do things properly, Spitzer appointed a special panel to advise him on whom to appoint. This is called "merit selection." It is preferable to elections, because voters are notoriously ignorant (see Bush, George W., Election of). Choosing a new P.J. (common vernacular for "presiding justice"—please memorize) is especially important because he also gets to pick the watchdogs who penalize wayward attorneys. Since Manhattan's hordes of attorneys all live in terror of being cited for wrongdoing, this causes the P.J. (see above) to be viewed as somewhere north of God. His jokes are the funniest ever heard, his wisdom unfathomable.

Unfortunately, Spitzer's panel didn't fully grasp the "merit" part. It selected five candidates as "highly qualified," yet somehow neglected to include two of the First Department's most distinguished members: Richard Andrias, a Vietnam vet with a Bronze Star who is considered such a stellar judicial performer that he has been nominated five times for the Court of Appeals, and David Saxe, another appellate Hall of Famer who is widely considered the best writer on the bench since the late William O. Douglas.

Cynics maintain that the absence of stars like Andrias and Saxe made it easier for the governor to select the judge he ultimately chose, Jonathan Lippman. An amiable insider, Lippman was for many years the court's able administrator and served as a loyal deputy to the state's top judicial officer, Chief Judge Judith Kaye of the Court of Appeals. As for actual judging, Lippman had a late start in the business: He never heard a case until 2004 and wasn't elected to the bench until 2005.

While this may seem an unlikely résumé for someone selected to head the state's busiest court, Lippman's many fans insist he is otherwise superb. The fact that he and his boss, Judge Kaye, have failed to get a raise for the state's judges for nine years should not be held against them, the fans say. And Judge Kaye's reluctance to go along with demands from scores of irate judges who want to sue the governor's ass to get that raise is also irrelevant.

Moreover, Lippman is so good that he is already being touted as a likely successor to Kaye when she has to step down late next year. Recommendations for that post will be made by another special gubernatorial panel.

That is how merit selection works. Who else are you going to trust to pick judges—editors?