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

8/5/09 N.Y. St. Reg. JDN-31-09-00004-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 31

August 05, 2009

RULE MAKING ACTIVITIES

COMMISSION ON JUDICIAL NOMINATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

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

Procedures of the Commission on Judicial Nomination

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

Proposed Action:

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 proposed rule (Full text is posted at the following State website:http://www.nysegov.com/cjn):

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.

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, 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) requesting a meeting between the Commission and the Governor or Governor-elect to discuss upcoming vacancies and efforts to recruit candidates;

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

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

(e) 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, and relevant political actors, including the Governor, Unified Court System, Attorney General, Speaker of the New York State Assembly and the President Pro Tempore of the New York State Senate;

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

(g) conducting at the Commission's discretion informational meetings in 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.

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.

(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 also 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 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 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.

Text of proposed 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]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

(1) Statutory authority:

Section 65 of the Judiciary Law authorizes the Commission on Judicial Nomination to adopt and amend written rules of procedure not inconsistent with law.

(2) Legislative objectives:

By vesting the Commission with this rulemaking authority, the Legislature intended the commission to promulgate rules for its internal procedures in keeping with the overall mandate of the New York State Constitution and Article 3-A of the Judiciary Law - 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 for from the extraordinary, diverse community of lawyers admitted to practice in New York State.

(3) Needs and benefits:

The Commission is releasing rule revisions that reflect the experience of the Commission gathered over the last 30 years as well as valuable input from the Governor, Legislators, the Judiciary, and the Attorney General, as well as various 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 new rules are the result of the Commission's work to incorporate this collected wisdom in a manner that is faithful to its overarching constitutional and statutory mandate.

(4) Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: None. The Commission's rules apply only to the Commission, not to any extra-governmental actors.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: Minimal. The Commission's rules impose additional costs on the Commission's operations only to the extent of requiring potentially greater (1) postage costs, so as to more broadly disseminate notice of vacancies on the Court of Appeals; and/or (2) travel expenses, so as to conduct informational meetings in the four Judicial Departments of New York State at the time of any such vacancies. The Commission's new rules do not impose any costs on local governments.

(c) This statement detailing the projected costs of the rules is based upon the Commission's oversight and experience regarding the process of nominating candidates for the Court of Appeals.

(5) Local government mandates:

These rules do not impose a duty on any local government or agency thereof.

(6) Paperwork:

These rules do not require any additional paperwork on regulated parties. These rules impose minimal additional reporting requirements on the Commission for purposes of the Commission's reports to the Governor.

(7) Duplication:

These rules do not duplicate any existing State or Federal requirement.

(8) Alternatives:

The alternative, leaving in place the current rules governing the Commission's internal procedures, was explored by the Commission. This alternative was rejected upon the Commission's finding, as set forth above, that updating the Commission's procedures would best implement the Commission's constitutional and statutory mandates.

(9) Federal standards:

There are no applicable minimum standards of the federal government.

(10) Compliance schedule:

The Commission is expected to achieve compliance with the proposed rules immediately.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required pursuant to subdivision three of section 202-b of the State Administrative Procedure Act because the rule does not impose an economic impact on small businesses or local governments. The proposed amendments and additions to the rules governing the Commission on Judicial Nomination seek only to implement the overarching constitutional and statutory mandate that the Commission vigorously seek out, carefully evaluate and then nominate to the Governor well-qualified candidates for the Court of Appeals, and to promulgate the Commission's commitment to discharge this duty with diligence and transparency, in a manner consistent with the confidentiality provisions of the Judiciary Law. Accordingly, they will not have an adverse impact on small businesses or local governments, nor impose any additional reporting, recordkeeping, or other compliance requirements on small businesses or local governments.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not required pursuant to subdivision four of section 202-bb of the State Administrative Procedure Act because the rule does not impose an adverse impact on rural areas. The proposed amendments and additions to the rules governing the Commission on Judicial Nomination seek only to implement the overarching constitutional and statutory mandate that the Commission vigorously seek out, carefully evaluate and then nominate to the Governor well-qualified candidates for the Court of Appeals, and to promulgate the Commission's commitment to discharge this duty with diligence and transparency, in a manner consistent with the confidentiality provisions of the Judiciary Law. Accordingly, they will not impose an adverse economic impact on rural areas, nor impose any additional recordkeeping, reporting, or other compliance requirements on private or public entities in rural areas.

Job Impact Statement

A job impact statement is not required pursuant to subdivision two of section 201-a of the State Administrative Procedure Act because the rule will not have a substantial adverse impact on jobs and employment opportunities, as apparent from its nature and purpose. The proposed amendments and additions to the rules governing the Commission on Judicial Nomination seek only to implement the overarching constitutional and statutory mandate that the Commission vigorously seek out, carefully evaluate and then nominate to the Governor well-qualified candidates for the Court of Appeals, and to promulgate the Commission's commitment to discharge this duty with diligence and transparency, in a manner consistent with the confidentiality provisions.