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Wednesday, March 21, 2007

Westchester Surrogate’s Court’s Dastardly Deeds

by Frank Brady © 2007

When 88-year-old Berta M. Murray died on August 12, 1997, she probably had not previously considered that the Scarsdale home built by her father, and that had been in her family for decades, would soon be occupied by a Westchester County Surrogate’s Court attorney-referee who worked in the very same court’s law department charged with the duty to oversee the affairs of the deceased-- A fact that has been secreted from her surviving relatives, until recently.

But Westchester Surrogate’s Court employee, attorney-referee Jody B. Keltz and her attorney-husband, Carl T. Peluso of Peluso & Touger in Manhattan, really liked that house at 168 Gaylor Road in Scarsdale, so in they moved in the Spring of 1998. And the two attorneys still call it home, even now as questions swirl as to just how they came to own the dead lady’s house.

By all accounts, the Keltz-Peluso attorneys never knew Berta, and they had most likely never invited the elderly widow to their prior home located at 75 Third Place in Brooklyn, New York.

“It’s outrageous that a Surrogate’s Court lawyer bought Berta’s house,” said an 80-plus-year-old cousin of Berta, and who only recently learned that Ms. Keltz was a lawyer in the Westchester Surrogate’s Court. “This stinks to high heaven, and I’m mad. It’s just not right, I don’t like this at all!” she added.

The real estate deal by the Keltz-Peluso team is reminiscent of a Brooklyn Surrogate Court “arrangement” in 2002 where, as the Village Voice described it, Judge Scholnick’s clerk “…snatched up the 11-room brownstone…of 85-year-old Elsie Perry…in a move that would make Donald Trump proud…” Honorably, Brooklyn Chief Court Clerk, George Crowley, refused to keep quite, saying publicly that, “If I did this, I would expect to be fired. The whole thing was unethical…the judge shouldn’t have allowed it…”

Brooklyn senior court official Crowley was so outraged by the cozy inside real estate deal that he took the highly unusual step of placing a note about it in the decedent’s Brooklyn Surrogate’s Court case file. But in the Westchester Murray-Keltz-Peluso transfer, no such concern has ever been voiced or documented by Surrogate’s Court Chief Clerk John Kelly or Surrogates Emanuelli or Scarpino. “Isn’t a Surrogate Court supposed to make sure everything is on the up-and-up, and handled properly?” asked Berta’s cousin, adding, “I knew Berta over seventy years, and everyone knew she wanted that house to stay in the family.”

Berta’s Dead: Enter The Vultures

A cursory review of Berta Murray’s estate file appears that it is largely normal, according to legal experts engaged to analyze the Murray estate transactions, and who are familiar with New York estate law, ethical obligations and the specific practices of the Westchester County Surrogate’s Court. However, they noted, the complete absence of any estate file “accounting” is quite unusual. And though not required, the name of Surrogate’s Court attorney-referee Jody B. Keltz, is nowhere to be found in the estate file. However, a review of the property Deed on file in the Westchester County Clerk’s office memorializes the transfer of ownership of 168 Gaylor Road in Scarsdale from the “Estate of Berta M. Murray…by The Bank of New York…to Carl T. Peluso and Jody B. Keltz, his wife.”

In a recent telephone conversation, a court employee confirmed that Ms. Keltz was still employed as an attorney-referee in the Surrogate’s Court’s law department. When asked to comment about the Keltz property transfer, she advised that, “If you want to keep your job around here, you keep your mouth shut.” When asked her name, the telephone connection ended.

A quick review of Berta’s estate file also shows a relatively standard probate proceeding, and it is quickly observed that The Bank of New York is the fiduciary and that the house was valued at $350,000.00--approximately one half of the total estate value of $742,968.00.

But an in-depth analysis reveals some eyebrow-raising facts, including that Berta’s last will was substantially different than her stated wishes as expressed to friends and relatives since her husband Elmer died in December of 1982. “In Westchester, everyone gets a crumb,” one estate lawyer noted. But those associated with the “new” wishes of Berta Murray EACH received “crumbs” worth tens of thousands of dollars: (1) attorney W. Rowland Miller of the Judy, Miller & O’Connor law firm in Scarsdale, and who drafted the Will for Berta (and in which The Bank of New York is named as the new fiduciary), and who was then retained as the attorney for the fiduciary, The Bank of New York; (2) attorney Samuel S. Yasgur, then of the Hall Dickler law firm, and who was appointed by former Hall Dicker lawyer and then-Judge Emanuelli to represent “unknown heirs”; and (3) real estate agent Camille Paradise of Claire D. Leone Real Estate, who lived in Berta’s neighborhood and who was the realtor that handled the sale of the house to court employee Keltz and her husband.

“Judges and attorneys have an obligation to avoid even the appearance of impropriety,” observed one White Plains estate attorney who asked that his name be withheld, adding, “But that ethical requirement doesn’t apply here-- every player gets their piece of the pie-- that’s how court business is done in Westchester County.” He conceded that, “On its face, this doesn’t look good-- a state-employed attorney-referee working in the Surrogate’s Court shouldn’t be purchasing a house from any estate her court is overseeing.”

Under Westchester County Surrogate Anthony A. Scarpino, court attorney-referee Jody B. Keltz continues her work insuring a high level of integrity in the administration of estate proceedings, also while holding professional fiduciaries, such as banks, to a high set of ethical and performance standards.

The biggest “crumb” from the Estate of Berta M. Murray went to Westchester County Surrogate’s Court attorney-referee Jody B. Keltz and her attorney-husband Carl T. Peluzo. That “crumb” -- the house and property located at 168 Gaylor Road in Scarsdale is, according to the village of Scarsdale tax office, now conservatively valued at $950,000.00.

(Note: The New York State Inspector General’s Office is currently reviewing the matter.) © 2007

Monday, March 19, 2007

New Federal Pirro Probe -Jeanine Cost Westchester County Millions



by Frank Brady © 2007

Another serious criminal allegation against Jeanine Pirro has been added to the growing list of federal questions into her actions while Westchester County’s District Attorney, say sources familiar with the latest inquiry. During her 12 years in office, according to the allegations, then-District Attorney Pirro knowingly failed to recover millions of dollars in forfeited bail-- monies that, according to state law, should have gone into Westchester County government bank accounts.

Bail is usually forfeited if a criminal defendant fails to appear for a scheduled court appearance. In courts everyday, though, many judges extend great latitude to defendants who have failed to appear, often negating “bench warrants” and “bail forfeiture” when certain facts are revealed to the court. “Failure to appear” determinations are excused when the judge is moved to accept the absence as unintentional, usually a result of a personal emergency or a simple mix-up of the scheduled date by the defendants, their attorney, court personnel or a computer. As one Manhattan criminal defense attorney explains, “If you have a good and honest reason for not showing up in court, judges are usually understanding,” adding, “but there are only two perfect excuses for not being in court--you’re dead, or in jail somewhere.” In short, if bail is forfeited, it is lost—gone. And the money goes to the county—except, as the newest allegations claim, in Jeanine Pirro’s Westchester County.


Numerous seasoned criminal defense lawyers interviewed for this article, and who demanded that their names not be used, were emphatic about their belief that except for only very rare exceptions, forfeited bail money is gone—and it gets deposited into the county coffers.

But the latest issue to haunt the former county judge, Ms. Pirro, alleges a different bail process in the criminal courts of Westchester County--that for a ten-year-plus period of time, and while she was the Westchester County District Attorney, Jeanine Pirro systematically prevented millions of dollars in forfeited bail monies from being delivered to the citizens of Westchester County.


According to criminal court documents obtained in one case, The People of the State of New York vs. Edickson Herrera, Ms. Pirro’s office failed to file the necessary paperwork to insure that the Westchester County government would receive $250,000.00 in forfeited bail money. The defendant had failed to appear in court on October 5, 1995, and though the court issued a bench warrant that day, the bail forfeiture became effective 5 days later on October 10, 1995. To make sure Westchester County received the $250,000.00, the District Attorney was simply required to file a copy of the forfeiture order within 60 days.

In a decision and order issued almost two years later, and dated September 5, 1997, the Honorable Mary H. Smith ruled, “While it may be lamentable that the People’s unexcused failure to follow the mandate of CPL 540.10(2) will result in a windfall to the petitioner and a $250,000.00 loss to the People of the State of New York, this Court is powerless…”

As a result of District Attorney Pirro’s failure to simply file a copy of the forfeiture order within the then-required 60 days, the Judge was forced to return the $250,000.00 to the petitioner, the Frontier Insurance Company.


In another 1997 case, The People of the State of New York vs. Melvin Gonzalez, Supreme Court Justice James R. Cowhey was similarly required to order the return of forfeited bail money, which in this case totaled $100,000.00. In his April 16, 1997 dated decision and order, Judge Cowhey ruled that “The People (D.A. Pirro) concede that they failed to have a judgment entered within sixty days of the bail forfeiture.” The Court also wrote, “Clearly, under the facts of this case the People have not complied with the statutory obligations of the statute. Subdivision 2 specifically imposes on the People the unconditional obligation to proceed against the surety within sixty days of the date the Court orders forfeiture of the bail.”

There are two common elements to the Gonzalez and Herrara bail forfeiture cases, and which were among papers submitted to prosecutors—the district attorney involved in both cases was Jeanine Pirro, and the surety that financially gained in both cases was the Frontier Insurance Company. In these two cases alone the failure of Ms. Pirro to follow a basic state law of procedure resulted in a $350,000.00 loss to Westchester County, and a $350,000.00 windfall to the Frontier Insurance Company. (Note: On October 20, 1998, an amendment to New York State law 540.10(2) doubled the filing time from 60 to 120 days in which a district attorney must file a copy of the forfeiture order.)

A former federal prosecutor who reviewed the documents and allegations against Ms. Pirro was quick to point out that, “Although there may be issues with the statute of limitations on the older bail forfeiture cases, the current focus may be on the pattern of criminal behavior by a group of individuals, and who for personal gain over many years, systematically acted to defraud the citizens of Westchester County out of millions of dollars.” He added, hesitantly, “It is equally unsettling that though they were required to follow the law concerning the D.A.’s failure and return the money, the judges involved were duty-bound to report Pirro’s failures to a half-dozen or so state and federal governmental entities.”


A White Plains-based New York State employee familiar with the allegations, and who requested that his name not be used in this article, supplied information which has been confirmed by documents submitted to federal prosecutors. He says, “It was common knowledge that Jeanine was up to something with the bail bond people…certain clerks were told NOT to file certain papers…this went on for years, and it was business as usual--right up until the time she left the D.A.’s office in January of ’06.” He added that, “The investigators have their work cut out for them…court documents and entire files have a way of disappearing in Westchester County.”

“This Bail Scam appears to be a well-hatched combination of a multi-million dollar white-collar crime and the corruption of one or more public officials who were in a position to exploit the lack of accountability,” noted a CPA and Certified Fraud Examiner (CFE) who reviewed court documents, and who asked not to be identified by name. “The fact is two separate courts determined that cash bail totaling $350,000.00 was forfeited and, accordingly, the money should have made its way to the county,” adding, “But if the county finance department doesn’t know it should be getting the money, that deficiency would never be revealed in any financial review or audit. If true, it is quite a clever scam. The New York State legislature needs to tighten the law by formulating a procedure so that there is accountability from the time bail money is forfeited until such time as the county financial officer takes possession or control of those funds.”

The former federal prosecutor advises that, “It will take some time to review all the material cases during the ten-year period, but the prosecutors will determine who was involved, and who ultimately profited in the scheme to prevent those monies from going to the county.” With a laugh he adds, “Follow the money.” © 2007

Sunday, March 18, 2007

Judicial Steering in New York Courts

Westchester's Matrimonial Part Revamped in Wake of Infighting
New York Law Journal by Daniel Wise (June 26, 2006)...MORE...
After months of bitter infighting, Ninth Judicial District Administrative Judge Francis A. Nicolai (See Profile) has reassigned all four judges who have been hearing divorce cases in Westchester County.

Two of five referees assigned to the matrimonial part are also being given new assignments, and the format for the matrimonial part itself is being revamped, said Office of Court Administration spokesman David Bookstaver.

Three new judges will be transferred into the part starting today, he added.

The judges are being shuffled and the part reorganized, Mr. Bookstaver said, because court officials have learned "from the nature of matrimonial work that it is historically prudent to rotate judges."

When the changes are fully implemented, the matrimonial part, which decides approximately 900 contested divorce cases a year, will have one fewer judge and two fewer referees.

The change in format, which will be phased in, will result in judges handling their own cases from start to finish, Mr. Bookstaver said. For the time being, though, judges assigned to the part will supervise cases until a fact issue is ready to be tried. At that point, cases will be assigned to any judge or referee in the part, or one of two backup judges, to conduct a fact-finding hearing.

Two of the judges being reassigned will continue to conduct fact-finding hearings during the transition, Mr. Bookstaver said. He added that no date had been set for the completion of the change in court procedures.

Westchester Surrogate Anthony A. Scarpino, who is coming into the part as supervising judge, will not carry his own inventory of cases, Mr. Bookstaver said. Surrogate Scarpino (See Profile) replaces Justice W. Denis Donovan (See Profile), who was responsible for assigning cases out to trial and hearings twice a week, and also carried a calendar of post-judgment enforcement motions.

The rotations are related to the controversies that have swirled through the part in recent months. Without being specific, Mr. Bookstaver said that the public has raised "a number of issues about the part's practices and policies and the changes are designed to address those serious issues."

Mr. Bookstaver would not discuss details, and said he could neither confirm nor deny whether investigations had been conducted by OCA Inspector General Sherrill R. Spatz.

But a referee assigned to the part, James A. Montagnino, has made available to the Law Journal a letter he wrote on March 13 to Chief Judge Judith S. Kaye and five other top administrative judges complaining that Justice Nicolai had improperly intervened in cases on seven occasions after having had ex parte contact with a lawyer or litigant.

And in interviews, both Mr. Montagnino and his lawyer, Fred L. Shapiro, a former County Court judge, said they had met with Ms. Spatz, who was conducting an investigation into the charges raised in Mr. Montagnino's letter to Judge Kaye.

Mr. Montagnino separately said that about a week after he wrote his letter, Ms. Spatz informed him that her office would be investigating complaints lodged against him by a number of female litigants whose cases he had handled. Other than Ms. Spatz, no agency has jurisdiction to investigate such charges.

Outcomes of Investigations

With regard to the investigation of Mr. Montagnino, Mr. Shapiro said that on June 5, Mr. Montagnino was told at a meeting with OCA's director of human relations that Ms. Spatz's investigation had resulted "in no negative findings." But he said OCA proposed that Mr. Montagnino accept a transfer to the Bronx because "it would be better for everyone if he did not continue to work in Westchester."

Mr. Montagnino, in turn, asked for a transfer to the Albany area because he could move to his vacation home in Saratoga, Mr. Shapiro said, and it was agreed he would be given an assignment in either Albany or Rensselaer county.

Mr. Bookstaver said that Mr. Montagnino was one of two referees who is being transferred out of the matrimonial part, and that starting today he will be assigned in the Third Judicial District, which includes Rensselaer and Albany counties.

To the extent that no public action has been taken against Justice Nicolai, and he remains as administrative judge for the five-county Ninth Judicial District, it can be inferred that Ms. Spatz found no merit to Mr. Montagnino's complaint.

As for the ex parte issues raised in Mr. Montagnino's March 13 letter, Mr. Bookstaver said that dealing with complaints from litigants and lawyers is "a part of what administrative judges do — it is very much a part of the administrative judge's responsibilities."

Three New Judges

Like Mr. Montagnino, Judicial Hearing Officer Edward P. Borrelli was reassigned as part of the court shakeup. Starting today, Mr. Borrelli will be working in the commercial part of the Westchester courthouse.

The three other referees who had been assigned to handle fact-finding hearings and occasionally whole cases, will now each be paired with one of the new judges handling divorces. In their new roles, they will be sent "narrowly framed issues" to try, and also handle conferences and motions in cases assigned to their judges, Mr. Bookstaver said.

The three referees who will continue to do matrimonial work are Meryl Amster, Irene Ratner and Reynold Snyder, though he is also slated for reassignment. Mr. Bookstaver said that Mr. Snyder will be replaced after he is reassigned.

The four judges being reassigned from the part are Justices Donovan, Bruce E. Tolbert (See Profile), Richard B. Liebowitz (See Profile) and William J. Giacomo (See Profile).

Justices Donovan, Tolbert and Giacomo will carry the same type of caseloads as other generalists receiving civil assignments in Westchester, though Justices Tolbert and Giacomo will remain available to conduct fact-finding hearings in divorce cases during the transition. Justice Liebowitz will also handle a normal civil caseload, but in Rockland County, starting today

In addition to Surrogate Scarpino, the judges coming into the part are Westchester Justice Linda Jamieson (See Profile), a former divorce practitioner and Family Court judge, and Justice Lewis Lubell, a plaintiffs' personal injury attorney who was elected to the bench from Westchester County last November but who has been sitting in Orange County.

Justice Lubell will be replaced in Orange County by Justice Joseph Alessandro (See Profile), who is being brought in from Rockland.

Concern Over Resources

Matrimonial bar leaders in Westchester expressed concern that the changes will leave them with one fewer judge and two fewer referees. They also said they were caught short by the changes.

Neil A. Fredman of Fredman & Kosan, who until May 17 was the head of the family law section of the Westchester County Bar Association, said that he had first heard "rumblings" of the planned changes two weeks ago. Mr. Fredman said that, even though the family law chairman historically has served as the liaison between the Westchester matrimonial bar and matrimonial judges, he had received no communication from the court about the proposed changes.

Mr. Fredman said that he was "mystified" as to why OCA was reassigning the judges. "There were charges and countercharges flying all over the place," he said, and the "only visible result is that all the judges are gone — and the complaints had nothing to do with them."

The bar fought hard to have more referees and a fourth judge added to the part, Mr. Fredman said. Now that they are gone, he added, "we will certainly be pressing to get them back."

Lonya A. Gilbert, a co-chairwoman of the Westchester women bar's matrimonial committee, said, "Our clients are required to come to preliminary conferences, and we already often have to wait a half hour. This certainly won't make the situation any better."

Fallout in Orange County

The dustup in Westchester has also had reverberations in Orange County, where lawyers are upset over the loss of Justice Lubell.

Joseph A. Owen the immediate past president of the Orange County Bar Association, said his association had written to Justice Nicolai asking that Justice Lubell not be reassigned, but was advised in a phone call that the transfer "was already done."

Justice Lubell, who was elected to the Supreme Court last November, was "a real gem," Mr. Owen said. "With his experience as a trial lawyer, he was able to move cases expeditiously and fairly," and both sides of the personal injury bar "appreciated having him on their cases."

Jonathan Jacobson, the Democratic leader in Orange County said he had contacted both Chief Administrative Judge Jonathan Lippman (See Profile) and Justice Nicolai, asking them not to reassign Justice Lubell.

Mr. Jacobson said he had gotten "lots of calls from Democratic and Republican lawyers alike expressing extreme displeasure" at Justice Lubell's transfer. They all felt, he said, that Justice Lubell had not "forgotten that he was a lawyer once, and understands the needs of lawyers."

Complaints to Conduct Panel

The infighting that led to the eventual shakeup in Westchester are reflected in the complaints against Justice Nicolai that Mr. Montagnino made in his March 13 letter and were mirrored in a complaint he filed nearly two weeks later with the state Commission on Judicial Conduct. Both the letter and complaint asserted seven instance of improper ex parte contacts in six cases.

In addition, Barry Skwiersky, court attorney to Justice Giacomo, complained separately to the commission about Justice Nicolai's intervention in two of the cases cited by Mr. Montagnino, which had also been handled by his judge.

Mr. Montagnino's attorney, Mr. Shapiro, who handled matrimonial cases in Westchester for eight years, filed a third complaint with the commission in which he offered added factual support concerning three of the alleged episodes of improper involvement by Justice Nicolai.

In two of those episodes, Mr. Shapiro claimed to be relaying information provided by Mr. Borrelli, who is a member of the court system's Advisory Committee on Judicial Ethics. According to Mr. Shapiro, Mr. Borrelli complained about two instances of ex parte intervention by Justice Nicolai in a divorce case that he was handling. Mr. Borrelli declined to comment.

Mr. Shapiro said that, as far as he is aware, his and Mr. Montagnino's complaints are still pending before the commission. Mr. Skwiersky also said he believed his complaint is still pending. Under conduct commission procedures, complainants are advised of how their complaints are disposed.

As for the complaints against Mr. Montagnino that he was biased against women, many matrimonial lawyers sent letters to Ms. Spatz's office attesting that he "was not a sexist," said Mr. Fredman of the Westchester bar. The outpouring of letters — one source said there were upwards of 30 — reflected a strong level of support.

Kathleen Donelli, another co-chairwoman of the Westchester women bar's matrimonial committee, for instance, said Mr. Montagnino is "always fair to women and women's issues and has the utmost respect of both male and female attorneys."

But some lawyers have a more negative view. Carol Most, a lawyer who was cited by Mr. Montagnino in two of his alleged examples of ex parte contacts, publicly criticized him as being "unfair" to women at a meeting of the Westchester women bar's matrimonial committee in 2003, according to Ms. Donelli, a partner at McCarthy Fingar in White Plains.

Ms. Most, who at the time was a co-chairwoman of the committee, declined to comment.

The leadership of the women's bar was so upset that its president at the time, Kathy N. Rosenthal, wrote a letter to Justice Nicolai disavowing Ms. Most's remarks, Ms. Donelli said.

Though the letter did not mention Ms. Most by name, Ms. Rosenthal stated that she was aware that "one or more members" of the association had expressed "an opinion" regarding Mr. Montagnino. She then noted that the association had not given authority to anyone "to speak about or against Referee Montagnino."

Several Westchester matrimonial practitioners identified a small group of lawyers as being highly critical of Mr. Montagnino. None of those lawyers responded to requests to speak about their views, even on a not for attribution basis.

But other lawyers who are aware of their views, described the group as believing that Mr. Montagnino is not favorably disposed to wives with high-end lifestyles who are seeking to maintain those lifestyles, without having to re-enter the work force, through a liberal award of maintenance.

Comments that Mr. Montagnino made during a continuing legal education seminar at Pace law School in 2004 resonated with the critics, some lawyers said.

Referring to the zip code for Scarsdale, 10583, Mr. Montagnino described some women litigants as having outsized and unrealistic expectations of what they can obtain in divorce, a phenomenon he dubbed the "10583 syndrome."

A reading of the full 10-paged, single-spaced transcript of the session, however, reveals other passages that would definitely be helpful to the non-monied spouse.

Tense Episodes

A couple of episodes illustrate the tensions that have marked the conflicts within the court, one involving Mr. Montagnino and one involving Justice Nicolai.

Mr. Montagnino acknowledged in an interview that the day after Ms. Most spoke at the 2003 womens' bar meeting, he bumped into her in the courthouse and asked her to come to his chambers. He said he told Ms. Most, who denied making the remarks attributed to her the night before, that making a false statement that a judicial officer is biased could constitute professional misconduct.

In a similar vein, both Mr. Montagnino and Mr. Shapiro charge that Justice Nicolai contacted court officials in charge of assigning counsel in Family Court cases after a well-respected law guardian complained that Justice Nicolai had intervened on an ex parte basis in a case where she had been assigned to be the law guardian.

According to a source familiar with the situation, the law guardian, Kathleen Hannon, had written "an over-the-top letter" to Justice Nicolai complaining about his ex parte intervention in a divorce case being handled by Mr. Borrelli. (The same case that Mr. Shapiro referred to in his complaint to the conduct commission.)

Justice Nicolai then forwarded Ms. Hannon's letter to the officials who certify lawyers for court appointments in Family Court cases in the Second Department with the notation "for whatever action you deem appropriate."

Ms. Hannon, apologized and that was the end of the matter, the source said. Ms. Hannon did not return a request for comment.

— Daniel Wise can be reached at

Beginning of the End of Corruption in NY Courts (CLICK HERE FOR FULL STORY)

Supreme Court Will Review the Way New York Selects Judicial Candidates
New York Times - February 21, 2007

WASHINGTON, Feb. 20 — The United States Supreme Court agreed on Tuesday to review New York’s method of selecting candidates to its own Supreme Courts — the 324 judges who have general trial jurisdiction throughout the state and whose nomination to 14-year terms is tightly controlled by a political process that two lower federal courts declared unconstitutional last year.

The lower court rulings, which were stayed until after the 2006 election cycle, have created turmoil in the state’s judicial politics and spurred calls for fundamental change in a system that dates to 1921. The political parties control the nominating conventions, and candidates who are not favored by the parties’ leaders have no chance of getting on the ballot. The actual elections are for the most part uncontested.

From 1994 to 2002, these nominating conventions in the state’s 12 judicial departments chose 568 State Supreme Court candidates, none of whom were challengers to the party favorites. The United States Court of Appeals for the Second Circuit, in a ruling last August affirming a decision issued five months earlier by Judge John Gleeson of Federal District Court in Brooklyn, ruled that the system was so exclusionary as to violate the First Amendment right of the state’s voters to freedom of political association.

“The First Amendment guarantees voters and candidates a realistic opportunity to participate in the nominating phase free from severe and unnecessary burdens,” Judge Chester J. Straub wrote for a three-judge panel of the appeals court. He added that the United States Supreme Court’s election-law precedents “establish that the First Amendment prohibits a state from maintaining an electoral scheme that in practice excludes candidates, and thus voters, from participating in the electoral process.”

The ruling was appealed to the Supreme Court by the New York State Board of Elections, joined by several political organizations; the incumbent State Supreme Court justices; and by Attorney General Eliot Spitzer, who was governor-elect by the time the appeal reached the court on Nov. 28.

Governor Spitzer’s view of the case will be a matter of some interest as it goes forward. Addressing the Rockefeller Institute of Government shortly after his election as governor, Mr. Spitzer indicated that he did not support the existing system, which he said was “in dire need of reform.” According to an account in The New York Law Journal, the governor-elect said that “there must be a way to primary onto the ballot,” and added that “I will not support anything that has a closed convention structure, where only those who came out of the convention could be on the ballot.”

Governor Spitzer’s office in Albany said on Tuesday that he would have no comment on the Supreme Court decision to hear the case, New York Board of Elections v. Torres, No. 06-766. The court will take up the case when its next term begins in October. It could be a year from now, or longer, before the justices issue a decision.

That long waiting period presents considerable uncertainty. Under Judge Gleeson’s original ruling, the state will have to begin to use a primary election system unless it comes up with another way to satisfy the court’s constitutional concerns. A bill to establish primary elections as the way to choose State Supreme Court nominees passed the State Senate last year and was reintroduced at the beginning of the new session in January.

But primaries present their own problems, including the need for candidates to raise considerable amounts of money. (Money is also an issue with the nominating conventions; a judge who was arrested in Brooklyn on corruption charges several years ago asserted that the going rate in the borough for the Democratic nomination for judge was $50,000.)

A task force convened by the New York City Bar Association in response to the court rulings recommended a system of merit selection, under which bar associations, civic groups and others would screen and present a list of candidates from which the governor or, in New York City, the mayor would choose.

Mark H. Alcott, president of the New York State Bar Association, said on Tuesday that the organization had long supported a merit selection system. The shift to such a system would require a state constitutional amendment. The Constitution was amended in 1846 to require election of State Supreme Court justices.

The challenge to the convention system was brought by a group of judicial candidates, Republican and Democratic voters, and the civic group Common Cause, represented by the Brennan Center for Justice at New York University Law School. The lead plaintiff, Margarita L√≥pez Torres, who is now the Brooklyn surrogate court judge, tried and failed several times to obtain a Democratic nomination for State Supreme Court. As an elected Civil Court judge, she refused an order to make a patronage appointment of a law secretary, and complained that she was told by a party leader that she “did not understand the way it works.”

Copyright 2007 The New York Times Company

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2
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