With All Due Respect

Voters may think they have a real say in who gets to sit on the New York State’s Supreme Court – our state’s highest level trial court. In reality, they’re deluding themselves. As a recent Buffalo News editorial correctly states: “New York’s corrupt system is specifically designed to take judicial elections out of the hands of voters, who are left merely to ratify the decisions made by party bosses.”

An Overview of this Legal but Unwise Process.

Ninety-five years ago, New York ceased using a primary election process for selecting candidates for Supreme Court Justices, where registered Democrats and Republicans had a say on which judicial hopefuls would appear on the election ballot as their party’s nominees. New York State’s legislature replaced primaries with party judicial conventions controlled by party leaders. Under this system, the party leaders virtually handpick which hopefuls will be on the November election ballot for a judgeship that involves a 14-year term and currently provides an annual salary of $210,900.

This corruption-inducing process is further tainted by a sleight-of-hand referred to as “cross-endorsements.” Rather than each party naming its own distinct candidates, party leaders agree to cross party lines and endorse each other’s nominee. This approach often leads to there being the same number of candidates as there are judicial vacancies – for example, four slots to fill and only four names to choose from – assuring the cross-endorsed candidate a victory. The fix is in, and the public is left with no meaningful choice.

New York State’s method for selecting its most powerful trial judges was challenged in court a couple dozen years ago as violating the First Amendment. The case eventually made it up to the U.S. Supreme Court, which concluded that the selection process was not unconstitutional. [See NYS Bd. of Elections v. Lopez Torres, 522 U.S. 196 (2008).] But a number of the justices on our nation’s highest court made it clear that they did not endorse the arrangement, and sadly reminded us that “the Constitution does not prohibit legislatures from enacting stupid laws.”

The Impact of a Tainted Selection Process.

During my 46-years of practicing in New York’s trial and appellate courts, I have appeared before intelligent and ethical judges, women and men I gladly called “Your Honor.” However, it does not take much imagination to see how a portion of the handpicked “winners” in this flawed selection process might feel more indebted to the political king- and queen-makers who chose them for the post, than to justice and the rule of law. As vividly described in the Buffalo News editorial mentioned above staff, New York’s corrupt system for selecting State Supreme Court Justices “stinks and the smell clings to the robes of the winners.”

For the past three decades, I have challenged zoning decisions and proposed development projects on behalf of average citizens. It has become clear to me that my practice has placed me at the treacherous intersection of the law, politics, and greed. Whether my clients were attempting to protect the quality of life in the Elmwood Village, the Fruit Belt, or the Outer Harbor, their legal claims – and their trust in the law and the judicial process – have frequently been extinguished by compliant and intellectually dishonest judges who are the product of this corrupt selection system.

The selection process has given us judicial embarrassments such as Joseph G. Makowski – forced to resign in 2009 to avoid criminal prosecution for submitting a false and misleading affidavit to the Hamburg Town Court in a failed attempt to help a female friend avoid a DWI charge – and John A. Michalek, disrobed in 2016 and still awaiting sentencing for accepting a bribe from former political operative Steven Pigeon.

Long before these now-disgraced former judges were caught engaging in fraudulent and unlawful activities, I witnessed firsthand their apparent willingness to disregard cogent facts and the pertinent law to ensure that politically-connected developers or lawyers prevailed in land development cases.  [See, for example, here regarding Makowski, and here regarding Michalek.]

Money and Family Relations Grease the System.

Calling it “legalized bribery,” the Buffalo News opinion piece is most concerned with the now-prominent practice of judicial hopefuls, and their family members, generously contributing to the war chest of political leaders. You have to pay to play in order to be considered.

But I am equally troubled by the apparent role of nepotism reflected in this year’s Supreme Court nominees.

Would Kelly A. Vacco – who graduated from Ohio Northern University’s law school in 1992, and serves as Town of Boston Town Justice – have been nominated for such a prestigious and lucrative judicial position, and guaranteed a victory through the cross-endorsement ploy, were she not the spouse of former Republican State Attorney General and long-time judicial power-broker, Dennis C. Vacco? While Mr. Vacco, in defense of his wife’s nomination, rejects the idea that the money his family donated to party leaders influenced his spouse’s selection, he embraces – in an August 18th Buffalo News article – his own “longtime involvement” in the nomination process as one of the factors that led to her spot on the upcoming ballot.

And is there no other lawyer in Western New York better suited intellectually and temperament-wise for a Supreme Court position than Joseph C. Lorigo? Would this registered Conservative and leader of the minority caucus in the Erie County Legislature be on the election-day shortlist if he were not the son of Ralph C. Lorigo? After all, the senior Lorigo has served as chairman of the Erie County Conservative party since 1995, and boasts in his firm’s bio that he has “a strong involvement in judicial races throughout Erie County.” It does look that way.

So Many Losers.

While the political party bosses and operatives select the winners, there are many losers, including: the integrity and fairness of the judicial system; the public’s trust in the judiciary; and, the exceptional lawyers who have been excluded from serious consideration for a judicial nomination simply because they lack the funds, the kinship connections of a Kelly Vacco or a Joe Lorigo, or the stomach for this corrupt system.

We must insist that our State legislators and Governor take steps to repeal the laws that perpetuate this corrupt and unwise method of selecting State Supreme Court justices, and restore the public’s confidence in the judicial selection process and the courts.

With All Due Respect,
Art Giacalone