JDN-31-09-00004-A Procedures of the Commission on Judicial Nomination

3/31/10 N.Y. St. Reg. JDN-31-09-00004-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 13

March 31, 2010

RULE MAKING ACTIVITIES

COMMISSION ON JUDICIAL NOMINATION

NOTICE OF ADOPTION

 

I.D No. JDN-31-09-00004-A

Filing No. 255

Filing Date. Mar. 16, 2010

Effective Date. Mar. 31, 2010

Procedures of the Commission on Judicial Nomination

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Parts 7100 and 7101 of Title 22 NYCRR.

Statutory authority:

Judiciary Law, section 65

Subject:

Procedures of the Commission on Judicial Nomination.

Purpose:

To update the commission's procedures to best implement the commission's constitutional and statutory mandates.

Substance of final rule:

Section 7100.0. Preamble.

This new section of the Commission's rules sets out the Commission's understanding of its constitutional and statutory mandates - i.e., to fill vacancies on the Court of Appeals, the Commission will vigorously seek out, carefully evaluate, and then nominate to the Governor well-qualified candidates from the extraordinary, diverse community of lawyers admitted to practice in New York State.

Section 7101.1. Chairperson.

This section of the Commission's rules has been amended to provide that if the Commission's chairperson is unable to fulfill the duties of office, or if the position of chairperson becomes vacant, the longest-serving commissioner able to fulfill the duties of chairperson will act as chairperson. This section of the Commission's rules has also been amended to provide that the chairperson may designate another member of the Commission or the Commission's counsel as spokesperson.

This section of the Commission's rules has also been edited for stylistic clarity.

7100.2. Counsel.

This section of the Commission's rules has been amended, consistent with Section 64(6) of the Judiciary Law, to provide explicitly that the Commission may appoint, remove, and fix the compensation of its counsel and staff at the Commission's pleasure; and to provide that Commission counsel will conduct orientation sessions for new commissioners.

This section of the Commission's rules has also been edited for stylistic clarity.

7100.3. Commission Vacancies.

This new section of the Commission's rules provides that, 30 days prior to the occurrence of an expected vacancy on the Commission, the Commission shall notify the public, press, bar associations, and appropriate appointing authority of such imminent vacancy, together with a statement that the ultimate objectives of wide diversity and broad outreach in the nomination of well-qualified candidates for the Court of Appeals are best served by a Commission that itself reflects the diversity of New York's communities.

7100.4. Meetings.

This section of the Commission's rules has been amended to allow the Commission to call a meeting through the use of electronic notice. This section of the Commission's rules has also been amended to repeal a provision allowing for a meeting of the Commission to be held without notice whenever the Commission, at a previous meeting, has designated the time and place for the meeting.

This section of the Commission's rules has also been renumbered and edited for stylistic clarity.

7100.5. Quorum for meetings.

This section of the Commission's rules has been renumbered and edited for stylistic clarity.

7100.6. Solicitation of candidates.

This section of the Commission's rules has been amended to formalize the Commission's protocol for making broad outreach across the legal profession in order to enable the Commission to identify qualified candidates from a wide range of New York's diverse communities. Such amendments include:

(a) dissemination of the procedure to be followed by the public to bring qualified candidates to the attention of the Commission;

(b) requiring Commissioners to disclose to the full Commission that they have recruited particular candidates under consideration;

(c) allowing the Chairperson to appoint a search committee to solicit recommendations from the legal community to enhance candidate outreach;

(d) dissemination of notices of vacancy through certain specified channels, including the media; bar associations; deans of New York law schools; members of the public; the Commission's website; the websites of the New York State Senate and New York State Assembly; relevant political actors, including the Governor, Unified Court System, Attorney General, Presiding Justices of the Appellate Divisions, the Administrative Judges for each Judicial District, and the Chief Administrative Judge for the State of New York; and organizations that are registered with the Commission;

(e) posting the applicant questionnaire on the Commission's website;

(f) conducting at the Commission's discretion, and as practicable, informational meetings in at least two of the State's four Judicial Departments to discuss the requirements for Court of Appeals and the Commission's procedures and rules for submitting recommendations of qualified candidates for vacancies, at which time, the public may be heard about community needs, the general qualifications for judicial office and the nominating process; and

(g) posting on the Commission's website answers to frequently asked questions about the requirements for the position and the Commission's procedures for the public to bring qualified candidates to its attention.

This section of the Commission's rules has also been renumbered and edited for stylistic clarity.

7100.7. Investigation of candidates.

This section of the Commission's rules has been renumbered and edited for stylistic clarity.

7100.8. Consideration of candidates.

(a) This subdivision of the Commission's rules has been amended to set forth the Commissioners' duty of impartiality in the consideration of candidates, and to provide that no Commissioner may individually communicate with an applicant to the Commission about the application or the nomination process, from the time the application is submitted until completion of the Commission's final vote on the nominations.

(b) This subdivision of the Commission's rules has been amended to provide for a two-step initial application process, wherein a candidate for the Court may first submit a short-form questionnaire, resume, and statement of interest, and only after the Commission has determined whether that candidate merits an interview must the candidate complete the Commission's full application questionnaire; and further to provide that:

(i) if the number of qualified applicants appears to be inadequate, the Commission may extend the deadline for submission of applications;

(ii) candidates shall be considered for the final nomination process upon their nomination by two commissioners, unless the Commission determines otherwise; and

(iii) the Commission presumably will employ a two-step application procedure for all vacancies, unless circumstances make the two-step process impracticable.

(c) This subdivision of the Commission's rules has been amended to set forth the objectives of the Commission's nomination procedure - i.e., (i) to ensure that the commission thoroughly considers and evaluates each candidate; (ii) to ensure that the commission is impartial in its deliberations; (iii) to promote consensus in the selection of nominees; and (iv) to ensure that each nominee receives at least eight affirmative votes from the commissioners, as required by Section 63(3) of the Judiciary Law.

(d) This new subdivision of the Commission's rules sets forth the Commission's non-discrimination policy.

(e) This new subdivision of the Commission's rules sets forth the Commission's commitment to diversity.

The portion of this section of the Commission's rules that details the voting procedures to be used by the Commission for consideration of candidates has been relocated to Appendix I to Section 7100 of Title 22, N.Y.C.R.R., and further edited, as below.

This section of the Commission's rules has also been renumbered and edited for stylistic clarity.

7100.9. Report to the Governor.

This section of the Commission's rules has been amended to require that the Commission's report to the Governor will set forth (a) the relevant accomplishments of each nominee, and include major legal matters in which the nominee participated, as well as other notable professional qualities that the Commission considered important in determining that each was well-qualified and fit to serve as the Chief Judge or an Associate Judge of the Court of Appeals, as the case may be; and (b) the efforts made by the Commission and counsel to publicize each vacancy and to solicit applications from the broadest group of well qualified candidates, provided that the report will not compromise the confidentiality of Commission proceedings, as mandated by Section 66 of the Judiciary Law. This section of the Commission's rules has also been amended to provide that the Commission's report will encourage the public to submit comments to the Governor.

This section of the Commission's rules has also been renumbered and edited for stylistic clarity.

7100.10. Amendment or waiver of rules.

This section of the Commission's rules has been renumbered and edited for stylistic clarity.

7100.11. Website.

This new section of the Commission's rules establishes a protocol for the Commission's website, to be used to educate and communicate with the public, and to aid in soliciting candidates.

Part 7100 Appendix I. Voting procedures.

This section of the Commission's rules, formerly a portion of Section 7100.7 of Title 22, N.Y.C.R.R., has been amended to provide that the default number of candidates to be ranked by the Commissioners when voting on candidates - assuming no nominations have been made by consensus - will be 15. The voting process will henceforth be conducted such that candidates to be nominated must be a candidate receiving the greatest number of "points," as well as the affirmative votes of eight Commissioners, as required by Section 63(3) of the Judiciary Law.

This section of the Commission's rules has also been edited for stylistic clarity.

Section 7101.4: Rules for public access to records of the State of New York Commission on Judicial Nomination: Location.

This section of the Commission's rules has been amended to provide that the Commission's point of contact for all information requests pursuant to the State Freedom of Information Law will be the office of the Commission's current Counsel.

Full text of the revised rules is available at the Commission's website, http://nysegov.com/cjn.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 7100.3, 7100.6(c) and 7100.8(e).

Revised rule making(s) were previously published in the State Register on

December 23, 2009.

Text of rule and any required statements and analyses may be obtained from:

Stephen P. Younger, Counsel, Commission on Judicial Nomination, 1133 Avenue of the Americas, New York, New York 10036, [phone], email: [e-mail]

Revised Regulatory Impact Statement

None of the proposed revisions change the Commission's previous analysis contained in its prior Regulatory Impact Statement, as published in the New York State Register of August 5, 2009.

Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement

None of the proposed revisions change the Commission's previous conclusion, as published in the New York State Register of August 5, 2009, that a regulatory flexibility analysis, rural area flexibility analysis and job impact statement are not required.

Assessment of Public Comment

In July of 2009, the Commission published for public comment its initial draft of proposed revisions to its rules. In December of 2009, the Commission published for public comment a revised draft of proposed revisions to its rules. The Commission received and carefully considered a number of comments on these proposed revisions from private and public individuals and organizations, including the New York State Bar Association, the City Bar Association, the New York County Lawyers’ Association and The Fund for Modern Courts. These comments dealt with almost every aspect of the proposed rules, and the rules as adopted incorporate many of the comments received.

The substantive changes contained in the republished rules include: clarification of the duty of an interim chairperson; a provision for orientation sessions for new members; broadening the outreach for candidates to include notice to civic and public interest organizations who register with the Commission; establishing the two-step application procedure as the Commission's preferred procedure for nomination; and further clarification of the Commission's voting procedure.

The changes contained in the republished rules are described in more complete detail in the Summary of the Revised Rules, above.