COMMISSION ON JUDICIAL NOMINATION
Section 61. Definitions.
62. Organization of the commission.
63. Functions of the commission.
64. Additional functions of the commission.
65. Rules of the commission.
66. Confidentiality of proceedings and records.
67. Breach of confidentiality of commission information.
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 for
the 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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