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Judiciary Law Art. 3-A

COMMISSION ON JUDICIAL NOMINATION

Section 61. Definitions.

Section 62. Organization of the commission.

Section 63. Functions of the commission.

Section 64. Additional functions of the commission.

Section 65. Rules of the commission

Section 66. Confidentiality of proceedings and records.

Section 67. Breach of confidentiality of commission information.

Section 68. Procedures when vacancies occur.

S 61. Definitions. 

For the purpose of this article, the following terms shall have the following meanings:

1. "Commission" means the commission on judicial nomination.

2. "Candidate" means a person who is constitutionally eligible to hold the office of chief judge or associate judge of the court of appeals and (a) who has requested the commission to consider his qualifications to hold such office; or (b) who has been recommended for consideration by the commission by another person, including a community or professional organization; or (c) who has agreed to be considered by the commission at the commission's request.

S 62. Organization of the commission. 

1. A commission on judicial nomination is hereby established. The commission shall consist of twelve members of whom four shall be appointed by the governor, four by the chief judge of the court of appeals, and one each by the speaker of the assembly, the temporary president of the senate, the minority leader of the senate, and the minority leader of the assembly. Of the four members appointed by the governor, no more than two shall be enrolled in the same political party, two shall be members of the bar of the state, and two shall not be members of the bar of the state. Of the four members appointed by the chief judge of the court of appeals, no more than two shall be enrolled in the same political party, two shall be members of the bar of the state, and two shall not be members of the bar of the state. No member of the commission shall hold or have held any judicial office or hold any elected public office for which he receives compensation during his period of service, except that the governor and the chief judge may each appoint no more than one former judge or justice of the unified court system to such commission. No member of the commission shall hold any office in any political party. No member of the judicial nominating commission shall be eligible for appointment to judicial office in any court of the state during the member's period of service or within one year thereafter. The members of the commission shall be residents of the state.

2. The members first appointed by the governor shall have respectively one, two, three and four-year terms as he shall designate. The members first appointed by the chief judge of the court of appeals shall have respectively one, two, three and four-year terms as he shall designate. The member first appointed by the temporary president of the senate shall have a one-year term. The member first appointed by the minority leader of the senate shall have a two-year term. The member first appointed by the speaker of the assembly shall have a four-year term. The member first appointed by the minority leader of the assembly shall have a three-year term. Each subsequent appointment shall be for a term of four years.

3. A vacancy shall be deemed to occur immediately upon the appointment or election of any member to an office that would disqualify him for appointment to, or membership on, the commission. A vacancy occuring for any reason other than by expiration of term shall be filled by the appointing officer for the remainder of the unexpired term.

4. The members shall designate one of their number to serve as chairman for a period of two years or until his term of office expires, whichever period is shorter.

5. Each member of the commission shall be entitled to receive his actual and necessary expenses incurred in the discharge of his duties.

6. Ten members of the commission shall constitute a quorum.

S 63. Functions of the commission. 

1. The commission shall consider and evaluate the qualifications of candidates for appointment to the offices of chief judge and associate judge of the court of appeals and, as a vacancy occurs in any such office, shall recommend to the governor persons who by their character, temperament, professional aptitude and experience are well qualified to hold such judicial office.

2. (a) In recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration, for a vacancy in the office of chief judge the commission shall recommend to the governor seven persons.

(b) For a vacancy in the office of associate judge, the commission shall recommend to the governor at least three persons and not more than seven persons. Should more than one vacancy exist at the same time in the office of associate judge, the number of persons recommended by the commission to the governor shall be at least three plus one additional person for each vacancy in such office, and not more than seven plus one additional person for each vacancy in such office.

(c) Should vacancies exist in the offices of chief judge and associate judge at the same time, the commission shall recommend for the office of associate judge the number of persons as provided in paragraph (b) of this subdivision, provided, however, that in addition thereto the commission may also recommend for associate judge any of the persons who have been recommended to the governor for the office of chief judge.

3. A recommendation to the governor shall require the concurrence of eight members of the commission. The recommendations to the governor shall be transmitted to the governor in a single written report which shall be released to the public by the commission at the time it is submitted to the governor. The report shall be in writing, signed only by the chairman, and shall include the commission's findings relating to the character, temperament, professional aptitude, experience, qualifications and fitness for office of each candidate who is recommended to the governor.

4. No person shall be recommended to the governor who has not consented to be a candidate, who has not been personally interviewed by a quorum of the membership of the commission, and who has not filed a financial statement with the commission, on a form to be prescribed by the commission. The financial statement shall consist of a sworn statement of the person's assets, liabilities and sources of income, and any other relevant financial information which the commission may require. The commission shall transmit to the governor the financial statement filed by each person who is recommended. The governor shall make available to the public the financial statement filed by the person who is appointed to fill a vacancy. The financial statements filed by all other persons recommended to the governor, but not appointed by him, shall be confidential.

S 64. Additional functions of the commission. 

The commission shall have the following functions, powers and duties:

1. Establish procedures to assure that persons who may be well qualified for appointment to the court of appeals, other than those who have requested consideration or who have been recommended for consideration by others, are encouraged to agree to be considered by the commission.

2. Conduct investigations, administer oaths or affirmations, subpoena witnesses and compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents or other evidence that it may deem relevant or material to its evaluation of candidates.

3. Require from any court, department, division, board, bureau, commission, or other agency of the state or political subdivision thereof or any public authority such assistance, information and data, as will enable it properly to evaluate the qualifications of candidates, subject to any absolute judicial or executive privilege, where one exists. Notwithstanding any other provision of law, the commission, with the consent of the applicant, shall be entitled to require from the commission on judicial conduct the record of any proceeding pursuant to a formal written complaint against an applicant for judicial appointment to the court of appeals, in which the applicant's misconduct was established, any pending complaint against an applicant, and the record to date of any pending proceeding pursuant to a formal written complaint against such applicant for appointment to the court of appeals. The commission on judicial conduct shall have fifteen days within which to respond to a request made pursuant to this subdivision.

4. Require the appearance of any candidate before it and interview any person concerning the qualifications of any candidate.

5. Communicate with the governor concerning the qualifications of any person whom it has recommended to the governor, and communicate with the senate concerning the qualifications of the person appointed by the governor.

6. The commission may appoint, and at pleasure remove, a counsel and such other staff as it may require from time to time, and prescribe their powers and duties. The commission shall fix the compensation of its staff and provide for reimbursement of their expenses within the amounts appropriated by law.

7. Do all other things necessary and convenient to carry out its functions pursuant to this article.

S 65. Rules of the commission. 

1. The commission shall adopt, and may amend, written rules of procedure not inconsistent with law.

2. Rules of the commission shall be filed with the secretary of state and the clerk of the court of appeals and shall be published in the official compilation of codes, rules and regulations of the state. Upon request of any person, the secretary of state shall furnish a copy of the commission's rules without charge.

3. Rules of the commission may prescribe forms and questionnaires to be completed and, if required by the commission, verified by candidates.

4. Rules of the commission shall provide that upon the completion by the commission of its consideration and evaluation of the qualifications of a candidate, there shall be no reconsideration of such candidate forthe vacancy for which he was considered, except with the concurrence of nine members of the commission.

S 66. Confidentiality of proceedings and records. 

1. All communications to the commission, and its proceedings, and all applications, correspondence, interviews, transcripts, reports and all other papers, files and records of the commission shall be confidential and privileged and, except for the purposes of article two hundred ten of the penal law, shall not be made available to any person except as otherwise provided in this article.

2. The governor shall have access to all papers and information relating to persons recommended to him by the commission. The senate shall have access to all papers and information relating to the person appointed by the governor to fill a vacancy. All information that is not publicly disclosed in accordance with subdivisions three and four of section sixty-three of this article, or disclosed in connection with the senate's confirmation of the appointment, shall remain confidential and privileged, except for the purposes of article two hundred ten of the penal law.

3. Neither the members of the commission nor its staff shall publicly divulge the names of, or any information concerning, any candidate except as otherwise provided in this article.

S 67. Breach of confidentiality of commission information. 

1. Any staff member, employee or agent of the state commission on judicial nomination who violates any of the provisions of section sixty-six of this article shall be subject to a reprimand, a fine, suspension or removal by the commission.

2. Within ten days after the commission has acquired knowledge that a staff member, employee or agent of the commission has or may have breached the provisions of section sixty-six of this article, written charges against such staff member, employee or agent shall be prepared and signed by the chairman of the commission and filed with the commission. Within five days after receipt of charges, the commission shall determine, by a vote of the majority of all the members of the commission, whether probable cause for such charges exists. If such determination is affirmative, within five days thereafter a written statement specifying the charges in detail and outlining his rights under this section shall be forwarded to the accused staff member, employee or agent by certified mail. The commission may suspend the staff member, employee or agent, with or without pay, pending the final determination of the charges. Within ten days after receipt of the statement of charges, the staff member, employee or agent shall notify the commission in writing whether he desires a hearing on the charges. The failure of the staff member, employee or agent to notify the commission of his desire to have a hearing within such period of time shall be deemed a waiver of the right to a hearing. If the hearing has been waived, the commission shall proceed, within ten days after such waiver, by a vote of a majority of all the members of such commission, to determine the charges and fix the penalty or punishment, if any, to be imposed as hereinafter provided.

3. Upon receipt of a request for a hearing, the commission shall schedule a hearing, to be held at the commission offices, within twenty days after receipt of the request therefor, and shall immediately notify in writing the staff member, employee or agent of the time and place thereof.

4. The commission shall have the power to establish necessary rules and procedures for the conduct of hearings under this section. Such rules shall not require compliance with technical rules of evidence. All such hearings shall be held before a hearing panel composed of three members of the commission selected by the commission. Each hearing shall be conducted by the chairman of the panel who shall be selected by the panel. The staff member, employee or agent shall have a reasonable opportunity to defend himself and to testify on his own behalf. He shall also have the right to be represented by counsel, to subpoena witnesses and to cross-examine witnesses. All testimony taken shall be under oath which the chairman of the panel is hereby authorized to administer. A record of the proceedings shall be made and a copy of the transcript of the hearing shall, upon written request, be furnished without charge to the staff member, employee or agent involved.

5. Within five days after the conclusion of a hearing, the panel shall forward a report of the hearing, including its findings and recommendations, including its recommendations as to penalty or punishment, if one is warranted, to the commission and to the accused staff member, employee or agent. Within ten days after receipt of such report the commission shall determine whether it shall implement the recommendations of the panel. If the commission shall determine to implement such recommendations, which shall include the penalty or punishment, if any, of a reprimand, a fine, suspension for a fixed time without pay or dismissal, it shall do so within five days after such determination. If the charges against the staff member, employee or agent are dismissed, he shall be restored to his position with full pay for any period of suspension without pay and the charges shall be expunged from his record.

6. The accused staff member, employee or agent may seek review of the determination of the commission by way of a special proceeding pursuant to article seventy-eight of the civil practice law and rules.

S 68. Procedures when vacancies occur. 

1. Whenever a vacancy will occur in the office of chief judge or associate judge of the court of appeals by expiration of term:

(a) on December thirty-first in a year fixed by the constitution for the election of the governor, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor-elect, on December first. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than January first nor later than January fifteenth thereafter; or

(b) on December thirty-first in a year fixed by the constitution for the election of members of the senate but not the governor, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor on December first. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than January first nor later than January fifteenth thereafter; or

(c) on December thirty-first in any other year, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than May first. The commission shall make its recommendations to the governor no later than October fifteenth. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than November fifteenth nor later than December first thereafter; or

(d) on any other date, the clerk of the court of appeals shall notify the commission of the anticipated vacancy no later than eight months prior to the date such vacancy will occur. The commission shall make its recommendations to the governor no later than sixty days prior to the date of such vacancy. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than fifteen nor more than thirty days after receipt of the commission's recommendations.

2. Whenever a vacancy occurs other than by expiration of term, the clerk of the court of appeals shall immediately notify the commission of such vacancy. The commission shall make its recommendations to the governor no later than one hundred twenty days after receipt of such notice. The governor shall make his appointment from among those persons recommended to him by the commission no sooner than fifteen days nor later than thirty days after receipt of the commission's recommendations.

3. Whenever a vacancy occurs and the senate is not in session to give its advice and consent to an appointment to fill such vacancy, the governor shall make an interim appointment from among those persons recommended to him by the commission. An interim appointment shall continue until the senate shall pass upon the governor's selection. If the senate confirms an appointment, the judge shall serve a term as provided in subdivision a of section two of article six of the constitution, commencing from the date of his interim appointment. If the senate rejects an appointment, a vacancy in the office shall occur sixty days after such rejection. If an interim appointment to the court of appeals be made from among the justices of the supreme court or the appellate divisions thereof, that appointment shall not affect the justice's existing office, nor create a vacancy in the supreme court, or the appellate division thereof, unless such appointment is confirmed by the senate and the appointee shall assume such office. If an interim appointment of chief judge of the court of appeals be made from among the associate judges, an interim appointment of associate judge shall be made in like manner; in such case, the appointment as chief judge shall not affect the existing office of associate judge, unless such appointment as chief judge is confirmed by the senate and the appointee shall assume such office.

4. (a) If the senate is in session at the time the governor makes an appointment pursuant to subdivision one or two of this section, the appointment shall be made in accordance with the provisions of section seven of the public officers law. The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor. A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment.

(b) Whenever the governor has made an interim appointment pursuant to subdivision three of this section, he shall communicate on the first day that the senate is in session following the making of the interim appointment, a written nomination to the senate in accordance with the provisions of section seven of the public officers law. The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor.

5. The failure of any officer or body to perform any act within a limitation of time established by this section shall not invalidate any appointment to the office of chief judge or associate judge of the court of appeals.

 
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