The Scam Continues: Make-Believe Judicial Elections Set for Tuesday

Turnout Will Determine Outcome in Off-Year Judicial Campaigns
The New York Law Journal by Joel Stashenko and Andrew Keshner  -  November 7, 2011

Long Island—where 10 Supreme Court seats are on the ballot tomorrow [TUESDAY]—is the hot spot in an off-year election that has generated little interest among voters.  Statewide, voters will choose 42 Supreme Court justices out of the 328 authorized positions. In all, 25 of those seats are being contested by Democratic and Republican candidates, including all 10 in Nassau and Suffolk counties.  Three justices assigned to the Appellate Division are facing re-election: First Department Justice David Friedman, a Democrat, running in Brooklyn in the Second Judicial District; Third Department Justice John A. Lahtinen, a Republican, in the northeastern New York Fourth Judicial District, and Fourth Department Justice Nancy E. Smith, a Republican, in the Rochester-area Seventh Judicial District.  Despite their advanced status in the court system, Appellate Division justices are not immune to defeat. In 2008, Republican incumbents Anthony J. Carpinello of the Third Department, Robert J. Lunn of the Fourth Department and Robert A. Lifson of the Second Department all lost their seats in the Obama Democratic landslide.  Also on the ballot this year are Civil Court positions in New York City and county and city positions in the 57 upstate counties.  In the city, incumbent district attorneys Richard Brown of Queens, Robert Johnson of the Bronx and Daniel M. Donovan Jr. of Staten Island all are seeking re-election, although only Mr. Donovan is opposed.  Mr. Donovan, a Republican who lost to Democrat Eric T. Schneiderman for attorney general last year, is facing Democrat Michael Ryan, whom he defeated in 2007.  Mr. Ryan, a private attorney and former probation officer, has served separate stints as New York City deputy criminal justice coordinator and deputy director of the state Division of Criminal Justice Services.  While Mr. Donovan has touted his crime-fighting efforts, Mr. Ryan has countered that serious crimes, including murders and rapes, are on the rise. Mr. Ryan said rapes are up by 66 percent since 2001.  Mr. Donovan argues that the rise in rapes is almost exclusively due to increases in statutory rapes.  "We have a lot of 19-year-old boys who fall in love with a 14-year-old girl because they're in high school together," Mr. Donovan said during a debate with Mr. Ryan on NY1 last week. "They consummate their love, and the young girl's mother finds out and reports it."  Mr. Ryan retorted that as the father of two girls he was shocked by Mr. Donovan's explanation.  Mr. Ryan contends that Mr. Donovan has been "distracted" since he was elected as district attorney in 2003 by ambitions for statewide office.  "He has had his eye on the attorney general's office from the very beginning," Mr. Ryan said in an interview. "I am going to relieve him of having to be distracted."  Mr. Ryan also has the Conservative Party line in the race against the Republican Mr. Donovan in conservative Staten Island.  The Conservative endorsement for Mr. Ryan was generally seen as the latest chapter in a long feud between borough President James Molinaro and Mr. Donovan, who was once Mr. Molinaro's top aide. It stems from Mr. Donovan's decision to hand off an assault case involving Mr. Molinaro's grandson to prosecution by the Manhattan district attorney's office in 2007. The grandson ultimately received five years in jail.  Mr. Molinaro denied influencing Staten Island conservatives to back Mr. Ryan.  Mr. Donovan, who has received the endorsements of several New York City police unions, is seeking his third term.  Mr. Donovan says he has maintained a policy of never plea-bargaining in cases that involve assaults on law enforcement officers. Additionally, he says that his felony conviction rate stands at almost 98 percent this year, and that nearly all repeat drunken drivers serve time.  As of 11 days before the election, Mr. Donovan reported raising about $197,000 for the campaign compared to $48,000 for Mr. Ryan.

A Focus on Turnout

Even with a wealth of judicial candidates to choose from, Democratic and Republican Party officials in Long Island are concerned that many voters will stay away from the polls with no national or statewide races to draw them. That puts a premium on get-out-the-vote drives by parties reasonably well-matched in enrollment.  "What presidential elections do is they change the whole chemistry of turnout," said Lee Miringoff, a pollster with Marist College in Poughkeepsie. "Depending on which way the winds are blowing, that can work well or ill for each party. In an off-year election, those effects are minimized and party registration and local factors are what attract voters. Turnout is very, very much a local phenomenon."  Suffolk County Democratic Chairman Rich Schaffer said his party had already knocked on 300,000 doors this year, contacting voters at about one-third of those addresses. Mr. Schaffer said he planned to have between 550 and 600 people on the ground starting over the weekend and leading up to Election Day.  John Jay LaValle, chairman of the Suffolk County Republican Committee, noted that all Republican-endorsed candidates won seats in last year's judicial election.  "We had a strong year last year for judicial candidates and expect to have another strong year in 2011," he said.  Even with the race between Democrat Steven Bellone and Republican Angie Carpenter for the open county executive seat in Suffolk, Mr. LaValle noted this was an off-year election and expressed the importance of the party doing its best to attract its base.  "The trick of the trade this year is pulling people out," Mr. LaValle said.  Nassau County Democratic Chairman Jay Jacobs estimated that voter turnout could be between 25 percent and 30 percent, with the possibility of a slight uptick. It is well over 50 percent when presidential or statewide races are being contested.  Four incumbent Republican Supreme Court justices are running for reelection in Long Island's Tenth Judicial District: Anthony L. Parga, Paul J. Baisley Jr., Roy S. Mahon and R. Bruce Cozzens Jr. Two other Republicans, Joseph C. Pastoressa and Thomas A. Adams are Court of Claims judges serving as acting Supreme Court justices. Acting Justice Adams previously served on the Appellate Division, Second Department, before losing a bid for reelection to the Supreme Court in 2006.  None of the 10 Democrats on the ballot is currently on the Supreme Court, but several are on other state court benches. They include Hope S. Zimmerman, a Nassau Family Court judge who is the supervising judge for matrimonial parts in Nassau County.  Seeking to make an electoral comeback is Democrat John B. Riordan, a former Nassau County Surrogate who in 2010 lost to then-Supreme Court Justice Edward W. McCarty III in a closely-watched Nassau County race. Mr. Riordan is running for Supreme Court this time around.  In the race for Nassau County Court, Elizabeth Kase, a criminal defense attorney with Kase & Druker, is looking to share the bench with her father John Kase, who was elected in 2005.  Ms. Kase said if she is elected, she believes it would be the first time that a father and daughter have shared the same state court bench in New York.  The Nassau County courts already have a brother and a sister on the same bench. Robin M. Kent was elected in 2008 to Family Court, where she joined brother Conrad D. Singer. Judge Singer was elected the previous year (NYLJ, Jan. 5, 2009).

Little Competition

Unlike Long Island, Supreme Court races in Manhattan and Brooklyn are not competitive this year. In Manhattan, five candidates are running for five seats.  In Brooklyn, there are eight candidates for six seats, but the Republicans and Democrats have cross-endorsed six of them.  Staten Island Justice Joseph J. Maltese is alone on the ballot, with backing from four parties. There are no judicial elections in the Bronx.  However, in the 11th District in Queens, six Democrats and six Republicans are on the ballot for Supreme Court, including incumbent Democrats Janice A. Taylor and Allan Weiss.  Eleven Civil Court seats in New York City are on the ballot. However, only two races, both for boroughwide seats in Brooklyn, feature contests between Democratic and Republican candidates. In the other nine, candidates are either cross-endorsed or unopposed.  District Court seats are being contested in six districts in Nassau and Suffolk counties.  Candidates in the Third District, which stretches from Albany to Sullivan County, are seeking to fill the seats on the Supreme Court being vacated due to retirements of two stalwarts of the Appellate Division, Third Department, Presiding Justice Anthony V. Cardona and Associate Justice Edward O. Spain.  There are five candidates for the two positions including both Democrats and Republicans for both.  Democratic County Court Judge Thomas A. Breslin, the brother of outgoing Albany County Executive Michael Breslin and brother of state Senator Neil Breslin, is seeking to move up from County Court.  Another well-known figure in the Third District is Rensselaer County Family Court Judge Catherine "KiKi" Cholakis, a Republican and the daughter of one-time federal judge Constantine "Con" Cholakis.  In the Syracuse-area Fifth Judicial District, there are four races to replace retiring justices. Political leaders in each party fielded a full slate of candidates and adhered to the local tradition of placing at least one candidate from each of the six counties in the district on the ballot.  In the Buffalo-area Eighth Judicial District, incumbent Democrat Patrick H. NeMoyer is running for reelection not only on the Democratic line, but on the Republican, Conservative, Working Families and Independence party lines as well.  Despite running without opposition, Justice NeMoyer reported raising more than $140,000 for the campaign. Records show he donated more than $40,000 of his funds to other candidates.  Joel Stashenko can be contacted at jstashenko@alm.com. Andrew Keshner can be reached at akeshner@alm.com.