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December 19th, 2012:

A personal view of judicial elections

I’ve mentioned in this space before that my father Charles A. Kuffner, Jr. was a Supreme Court justice in New York. (Note: The Supreme Court in New York is basically the equivalent of a District Court in Texas. The top court in New York is the Appellate Court.) He was elected to that position in 1982, and lost his re-election bid in 1996. (Yes, they have 14 year terms in New York.) As you might imagine, he has followed my series of posts about judicial elections with interest, and while discussing it in a recent phone conversation, I encouraged him to write about his experience for publication here. Here’s what he sent me:

Is there a best way to select a Judge?

I have had this discussion with my son and many others over the years. Since I have been exposed to both the election of Judges and the selection process for the Judiciary I offer this commentary.

Both systems have their obvious flaws but over all I prefer the election of Judges with some limitations. Let me tell you my experience.

In 1982 the State of New York funded additional Judgeships Statewide with 13 new positions for the 2nd Judicial Department, Brooklyn and Staten Island. The political leaders worked out a formula, 10 Democrats, 3 Republicans, 2 Republicans from Brooklyn and 1 for Staten Island. (Staten Island was included since the Senate Finance Chair was from Staten Island).

A joint committee selected by the politicians interviewed all candidates and if approved the person would run in November dually endorsed by the Brooklyn Democratic Party and the Republicans. You should know that without the Democratic endorsement a person had no chance for election.

12 Republicans interviewed from Staten Island, but for one reason or another consensus could not be reached. I was candidate #13 and interviewed just before the judicial convention. Previously, I was on that screening committee and was not a candidate for the position. I was passed by the joint committee and was elected in 1982, and served from 1983 until 1996.

In 1996 I sought the Democratic dual endorsement, which previously was automatic, but denied that endorsement. I ran as a Republican and was defeated. A little history; I was endorsed by every Bar Association in the district as “Highly” qualified and even a “Highly” qualified rating was obtained by the umbrella group representing the “white shoe” lawyers. Interestingly, I was the only trial court Justice to received the “highly” qualified rating. Even with these credits, along with being President-elect of the Association of Supreme Court Justices, it meant nothing to the straight line Democratic voters in the 2nd judicial district. Add to that was my reversal rate after trial which was about nil.

I then applied to the State and the City for an appointed judicial position. I interviewed at the State level and even though I had an affirmance rate after trial of about 98% I was not recommended to Gov. Pataki. More history; I opposed the Pataki plan to limit judicial discretion in sentencing defendants and was so quoted in the New York Times.

The appointment process for the NYC Criminal Courts mirror that of judicial selection set up I originally went before when I was elected in 1982. I came out of the Mayor’s committee as recommended and was even interviewed by Mayor Giuliani but all for naught. I was not appointed: thus ended my judicial career.

Reality check: there isn’t a major party leader that will give up the power over judicial candidate selection whether by election or appointment. Jobs are the life blood of political parties and judicial patronage appointments mean untold millions of dollars that find their way back to the party in power. From my own experience I can tell you that every mortgage foreclosed meant at least $500 to the lawyers I appointed as referee to sell; for every commercial property that goes into foreclosure, a receiver is appointed to collect rents, etc. That fee is usually 5% of monies collected. For every person in need of guardianship, a lawyer is appointed as an evaluator and is paid a percentage of the estate to be managed; in the Probate courts the amount of patronage paid to politically connected lawyers is staggering. Need I say more?

If I had to recommend a system for appointment of judicial candidates, I would have as a committee membership roster, Court employees who work in the Courts where the vacancy exists; lawyers who routinely practice in that court; former jurors who sat for trials and a psychiatrist/psychologist. Why these folks? Easy, court employees are keen observers and evaluators of courtroom demeanor; lawyers want to practice before a colleague whose work habits and scholarship are known; jurors because they also have 1st hand knowledge of the stresses and strains in a courtroom during trial and lastly mental health professionals who can gauge the all important qualifications of demeanor, temperament and character of the candidate.

Once the candidate or candidates are selected they are appointed and sit for 2 years and then run for a longer term in a non-partisan election on their record.

Pie in the sky? You bet, but if you want to eliminate party politics from the Judiciary radical changes have to me implemented.

So there you have it. The system is a little different in New York, but the parallels are obvious enough. Again, my point is not to defend the status quo but to point out that the question of how best to do this is complex, and we are not well served by simplistic solutions such as eliminating straight-ticket voting for judicial races. More discussion is needed, and I hope I’ve provided some useful items towards that end.

Chapter 42 is back

This is going to be fun.

Sprawling, boomtown Houston may be in for another battle over land use and development, this time driven by the most significant changes proposed to the city’s building rules in 13 years.

The rewrite would further a push for density in single-family development, begun inside Loop 610 when the rules were last changed in 1999, by extending those guidelines citywide. The proposed changes also would address problems that have cropped up with the townhomes that proliferated after the 1999 revision, which designated the Inner Loop “urban” and areas outside “suburban.”

City planners and developers say greater single-family density – allowing more homes to be built on a single acre – will spur redevelopment of blighted areas and provide more affordable housing in the city because builders will be able to fit more buyers on each piece of land, lowering the price they have to charge for each house or townhome. They stress the changes would not encourage more apartment towers.

Many residents are wary. Some say the push for greater density inside the Loop has sacrificed neighborhood aesthetics and created infrastructure problems, compounded by a lack of city enforcement. Others fear how the proposal will affect their neighborhoods.

Change can be scary for residents, Planning Department Director Marlene Gafrick acknowledged, but said redevelopment is better than decline.

“We have an aging city. We need to think about how we go in and allow for our city to be updated,” she said. “To some extent, these rules will encourage the redevelopment of property. We’re trying to encourage more single-family residential development outside the 610 Loop.”

On the one hand, this update should allow more dense development throughout the city of Houston, which in turn should make new development in Houston more affordable, and thus make living within the city more competitive with living out in the burbs. This is a good and necessary goal, and though I have expressed concerns about this in the past, I support it, as I have come to the view that the city needs to do what it can to encourage people to live inside its boundaries. Making housing more affordable is a good step in that direction. But the concerns I had before still remain, in that the city’s infrastructure will be greatly taxed by an influx of denser development. Rebuild Houston will deal with some of this, Parks By You will deal with some of this, and the rail lines that are currently under construction and whatever expansion of the bus system we get will deal with some more of it, but it’s not enough. We’ll need a lot more transit – all the rail we voted for in 2003 and then some, and a much bigger emphasis on sidewalks, walkability, and bicycle access. I feel like we’re moving in the right direction, but I worry about how long it will take us to get where we need to be.

Student RFID case in federal court

Good luck sorting it all out, Your Honor.

Because she has a religious objection to Northside Independent School District’s new student tracking system, Andrea Hernandez and her father testified in federal court Monday, she should not be transferred to another school for refusing to carry a student I.D. badge.

Hernandez, 15, a sophomore in a science and engineering magnet program at John Jay High School, and her father, Steven Hernandez, each testified that they believe the tracking system — which uses radio frequency identification tags inserted in student badges — is a sign of submission to the Antichrist as described in the Bible’s Book of Revelation.

Northside began trying out the RFID technology at two schools this fall. It allows an attendance monitor to locate students at specific areas on campus in real time.

It’s a way to maximize state funding, which is partly based on daily attendance, to cope with budget cuts, Northside Superintendent Brian Woods told U.S. District Judge Orlando Garcia. The system allows a more accurate count of which students are at school and could help locate individuals quickly in case of emergencies, Woods said.

[…]

Steven Hernandez teared up on the stand after reading a passage from the Bible and explaining how deeply he holds his faith on the issue. He said supporting the program “would compromise our salvation for NISD to make some money.”

Andrea told the judge that her educational goals would be harmed if she goes to Taft because she wouldn’t be able to take certain classes in pursuit of a career as an interface web designer. Garcia repeatedly asked Andrea and her father why she could not wear the badge with the chip removed. That would be “falling in line with the rest and showing support for the program,” Steven Hernandez testified.

After the hearing, when asked who he thought was assuming the role of the Antichrist, Steven Hernandez replied, “In this case, Northside is the Antichrist.”

Garcia said he would decide this week on Andrea’s request for a permanent injunction to keep her at Jay.

I can’t wait to see what he decides. See here and here for more.

SCOTUS voter ID update

The matter is officially with the Supreme Court now.

Still the only voter ID anyone should need

A federal court deferred further proceedings in a lawsuit filed by Texas over the state’s voter identification law until the U.S. Supreme Court rules on whether part of the Voting Rights Act is constitutional.

A three-judge panel in Washington said today that “in the interest of efficiency and judicial economy” it will wait for the Supreme Court to review a provision of the 1965 law requiring all or part of 16 mostly Southern states to get federal approval before changing their voting rules. The Texas suit challenges the same provision.

The judges today issued a final judgment on their earlier rejection of the identification law, allowing Texas to seek an immediate appeal to the Supreme Court.

The high court said Nov. 9 it would consider a case in which Shelby County, Alabama, objects to the formula in Section 5 for determining which jurisdictions must get pre-clearance of laws affecting voting qualifications and procedures. The court will hear arguments in the case on Feb. 27.

According to Texas Redistricting, the Dc panel also stayed any consideration of the state’s claim that section 5 of the Voting Rights Act is unconstitutional pending the Supreme Court’s resolution of the Shelby case. The final order denying preclearance is what the state wanted. Intervenors opposed the request for an immediate appeal:

They told the court the state’s request for an immediate appeal was “inexplicabl[e]” given that the request had come only “[t]hree months after this Court’s August 30 decision denying preclearance.”

Instead, the intervenors’ filing told the court that it would be a more efficient use of judicial resources – and less burdensome to the parties – to let the Supreme Court first decide the constitutionality of section 5 of the Voting Rights Act in the pending Shelby County case:

The Supreme Court’s affirmance of the circuit court’s decision in Shelby County, for example, may effectively end the preclearance dispute in this case given the extent to which Texas has invoked constitutional concerns in arguing for preclearance. If, on the other hand, the Supreme Court in Shelby County does not affirm the circuit court’s decision, a direct appeal of this case to the Supreme Court of the preclearance decision would, most likely, constitute a waste of judicial resources.

In a short filing Friday, lawyers for the Justice Department told the court that they did not oppose granting the relief sought by the court.

Click over to see the filings, and click over to Texas Redistricting to review the history of this case if you need it. Between this and the redistricting appeal/map redraw, there’s a lot to look forward to from SCOTUS and the San Antonio court in the next month or so.