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United States Court of Appeals for the Second Circuit ______ 06-0635-CV United States Court of Appeals for the Second Circuit _________________________________________________________________ MARGARITA LóPEZ TORRES, STEVEN BANKS, C. ALFRED SANTILLO, JOHN J. MACRON, LILI ANN MOTTA, JOHN W. CARROLL, PHILIP C. SEGAL, SUSAN LOEB, DAVID J. LANSNER, and COMMON CAUSE/NY, Plaintiffs-Appellees, v. NEW YORK STATE BOARD OF ELECTIONS; CAROL BERMAN, NEIL W. KELLEHER, HELENA MOSES DONOHUE, AND EVELYN J. AQUILA, in their Official Capacities as Commissioners of the New York State Board of Elections, Defendants-Appellants, NEW YORK COUNTY DEMOCRATIC COMMITTEE, NEW YORK REPUBLICAN STATE COMMITTEE, ASSOCIATIONS OF NEW YORK STATE SUPREME COURT JUSTICES IN THE CITY AND STATE OF NEW YORK, and JUSTICE DAVID DEMAREST, Individually, and as President of the State Association, Defendant-Intervenors-Appellants, ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Statutory-Intervenor-Appellant. ___________________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK __________________________________________________________________ BRIEF OF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES, SEEKING AFFIRMANCE OF THE ORDER OF THE DISTRICT COURT _________________________________________________________________ CHARLES J. HYNES District Attorney Kings County 350 Jay Street Brooklyn, New York 11201 (718) 250-2492 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................ i PRELIMINARY STATEMENT OF INTEREST OF THE AMICUS CURIAE, CHARLES J. HYNES, DISTRICT ATTORNEY OF KINGS COUNTY, NEW YORK.......................................................................... 2 ARGUMENT................................................................................................................. 8 CONCLUSION............................................................................................................ 23 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7) TABLE OF AUTHORITIES Page CASES Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................16 Bullock v. Carter, 405 U.S. 134 (1972) ........................................................................12 Lerman v. Bd. Of Elections, 232 F.3d 135 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001).......................................................................16 Lubin v. Panish, 415 U.S. 709 (1974)...........................................................................12 Margarita Lopez Torres, et al. v. N.Y. State Bd. Of Elec., et al., 411 F. Supp.2d 212 (E.D.N.Y. 2006)....................................................7, passim Molinari v. Powers, 82 F. Supp.2d 57 (E.D.N.Y. 2000)..............................................16 People ex rel. Coffey v. Democratic General Committee, 164 N.Y. 335 (N.Y. 1900) ..................................................................................19 Schultz v. Williams, 44 F.3d 48 (2d Cir. 1994)............................................................16 United States v. Classic, 313 U.S. 299 (1941)........................................................ 11-12 STATUTES and OTHER AUTHORITIES N.Y. Elec. L. § 6-104...................................................................................................... 7 N.Y. Const., art. VI, § 6(c) .......................................................................................9, 15 N.Y. Const., art. VI, § 7................................................................................................15 N.Y. Const., art. 4, § 4 ..................................................................................................15 ________________________________ _______________________________ United States Court of Appeals for the Second Circuit _______________________________________________________________ MARGARITA LÓPEZ TORRES, STEVEN BANKS, C. ALFRED SANTILLO, JOHN J. MACRON, LILI ANN MOTTA, JOHN W. CARROLL, PHILIP C. SEGAL, SUSAN LOEB, DAVID J. LANSNER, and COMMON CAUSE/NY, Plaintiffs-Appellees, v. NEW YORK STATE BOARD OF ELECTIONS; CAROL BERMAN, NEIL W. KELLEHER, HELENA MOSES DONOHUE, and EVELYN J. AQUILA, in their official capacities as Commissioners of the New York State Board of Elections, Defendants-Appellants, NEW YORK COUNTY DEMOCRATIC COMMITTEE, NEW YORK REPUBLICAN STATE COMMITTEE, ASSOCIATIONS OF NEW YORK STATE SUPREME COURT JUSTICES IN THE CITY AND STATE OF NEW YORK, and JUSTICE DAVID DEMAREST, Individually, and as President of the State Association, Defendant-Intervenors-Appellants, ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Statutory-Intervenor-Appellant. ___________________________________________________________ On Appeal from the United States District Court for the Eastern District of New York _____________________________________________________________ BRIEF OF AMICUS CURIAE, CHARLES J. HYNES, DISTRICT ATTORNEY, KINGS COUNTY, NEW YORK, IN SUPPORT OF PLAINTIFFS-APPELLEES, SEEKING AFFIRMANCE OF THE ORDER OF THE DISTRICT COURT __________________________________________________________________ PRELIMINARY STATEMENT OF THE AMICUS CURIAE, CHARLES, J. HYNES, DISTRICT ATTORNEY OF KINGS COUNTY, NEW YORK It is with a sense of urgency that I submit this brief as amicus curiae in support of the Plaintiffs-Appellees [hereafter referred to as “the Plaintiffs”] and the affirmance of the decision of the District Court.1 The issuance by that court of an order enjoining the State of New York from continuing to utilize the judicial district convention system for the nomination of candidates for the Supreme Court bench was manifestly correct and critically necessary. I now urge this Court to affirm the decision and order of the District Court. So long as the judicial district convention system remains in place, only those candidates for the Supreme Court bench who are chosen by the leaders of the major political have ever and will ever attain the bench. So long as the district convention system remains in place, the party leaders and not the voters of this State determine who fills each seat on the bench of the Supreme Court, and the rights of legitimately qualified candidates to the bench will be frustrated. Although counsel for the Plaintiffs will present these important issues to the Court in an exemplary manner, I believe that I have unique insight into the 1 The parties to this appeal consented to the filing of amicus-curiae briefs, pursuant to Fed. Rule App. Proc. 29(a). 2 issues raised. As the District Attorney of Kings County, Brooklyn, New York, since 1990, I have overseen and I continue to oversee the investigation of allegations of the corrupt use of the power of the Kings County Democratic Party to control and influence the judiciary in Brooklyn. As a result, I know full well the evidence that was considered by the District Court, and I therefore can and do attest that the District Court correctly concluded that the powerful county leaders of the major political parties, through the mechanism of the judicial district nominating convention, have a stranglehold on the Supreme Court of the State of New York. Mere recognition by the District Court of this problem would have been an empty exercise had the District Court not then granted the motion for an injunction. I have, just as others have over the course of decades, highlighted the glaring infirmities of the judicial district convention system and strongly urged reform. We have traced the roots of this system back to the corruption in the era of Tammany Hall, establishing that it is a vestige of the back-room power that party leaders used to be able to wield over the nominating process for all elected offices. We have repeatedly called upon the State either to amend the Constitution and provide for the merit-based appointment of the justices in order insulate those critical jurists from participation in partisan campaign fundraising and electioneering or, in the alternative, to repeal the 3 infirm provisions of the Election Law and enact a publicly-funded, direct primary nominating system that would give to the voters the power to nominate and elect the justices of the Supreme Court that the State Constitution intends. The New York State Legislature has instead allowed this untenable abrogation of the First Amendment rights of the voters and of challenger candidates to become an entrenched part of not only the political power structure but also of the judiciary, negatively but understandably impacting the public’s perception of the system of justice in New York. The District Court, cognizant of the fact that many if not all members of the legislature are themselves among the leaders of their political parties who wield the power to anoint the justices of the Supreme Court, eschewed naiveté and properly wielded its injunctive power, barring the further use of the judicial district convention system, and calling upon the Legislature to amend the Election Law so as to reflect the State Constitution within a circumscribed period of time. The voluminous evidence heard and considered by the District Court left it with no option but to conclude that the harm that has resulted from the judicial district nominating convention system and legislative inaction can no longer be tolerated where even many of those in the legal community have 4 come frighteningly close to passive acquiescence to it. In fact, none of the results of the investigations that I have overseen into allegations of corruption in
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