N.Y. Comp. Codes R. & Regs. tit. 9 § 3.5

Current through Register Vol. 43, No. 47, November 24, 2021
Section 3.5 - Executive order no. 5: establishing judicial nominating committees

I, Hugh L. Carey, Governor of the State of New York, in accordance with my desire to appoint as judges only those persons who are, by virtue of their learning, experience, character and temperament, well qualified to assume the duties of judicial office, do hereby establish Judicial Nominating Committees, as hereinafter set forth, for the purpose of recommending to the Governor persons to fill vacancies in judicial office. The power to fill a vacancy in a judicial office will be exercised by the Governor in accordance with the procedure outlined below.

1. Judicial Nominating Committees are hereby established to evaluate the qualifications of candidates for appointment or designation to judicial office throughout the State, and to recommend to the Governor those persons who are well qualified to hold judicial office. Each committee shall consider the qualifications of any candidate proposed to it by citizen organizations, by any member of the committee, by the Governor, or by any other person or group. Each committee shall report to the Governor the names of those persons whom it recommends as well qualified to hold any of the particular judicial offices within the committee's jurisdiction as hereinafter set forth. A person may not be recommended by a committee unless a majority of the full membership of the committee concurs in finding that such person is well qualified for appointment to the particular judicial office.

Each committee shall recommend to the Governor only those persons who by their character, temperament, and professional aptitude and experience have demonstrated their special qualification for judicial office. The committee shall prepare a written report consisting of a summary of the qualifications of each person recommended to the Governor. Such report shall be made available to the public upon the announcement by the Governor of an appointment, and where Senate confirmation of a nominee is constitutionally required, such report shall be made available to the Senate a reasonable time prior to any public hearing on confirmation of such nominee. Except as may be necessary for the preparation of such reports, all information submitted to the committee shall be confidential, and shall not be disclosed except to the Governor, unless required in connection with the performance of official duties or disciplinary proceedings.

2. There is hereby established a State Judicial Nominating Committee, consisting of the Chairman of each of the departmental judicial nominating committees established by paragraph three of this Order, and two of the other members of each of the departmental judicial nominating committees, who shall be selected by the members of each committee provided, however, that the two members so selected shall not be enrolled in the same political party and of the two members so selected, one shall be a lawyer, and one shall be a non-lawyer. The Chairman of the State Judicial Nominating Committee shall be selected by the members of the Committee, from among the members of the Committee.

The State Judicial Nominating Committee shall have jurisdiction to consider the qualifications of candidates for appointment to the offices of Judge and Chief Judge of the Court of Appeals, and candidates for appointment to the offices of Judge and Presiding Judge of the Court of Claims, and to recommend to the Governor persons who are well qualified for those judicial offices.

When exercising the power to fill a vacancy in the office of Chief or elected Associate Judge of the Court of Appeals, pursuant to Section 2(c) of Article VI of the Constitution; or the power to designate the Presiding Judge of the Court of Claims pursuant to Section 2(6) of the Court of Claims Act; or the power to appoint a Judge of the Court of Claims pursuant to Section 9 of Article VI of the Constitution and Sections 2(2) and 2(4) of the Court of Claims Act; or the power to fill a vacancy in the office of Judge of the Court of Claims pursuant to Section 21(b) of Article VI of the Constitution, the Governor shall appoint or designate only persons who have been recommended by the State Judicial Nominating Committee as well qualified for the judicial office to which the appointment is to be made.

The State Judicial Nominating Committee shall promulgate appropriate rules and regulations to govern its proceedings and those of the departmental and county nominating committees established by this Order.

3. There is hereby established in each judicial department of the State a Departmental Judicial Nominating Committee, consisting of eleven members selected as follows: four members, not more than two of whom shall be enrolled in the same political party, at least two of whom shall be non-lawyers, shall be selected by the Governor; four members, not more than two of whom shall be enrolled in the same political party, at least two of whom shall be non-lawyers, shall be selected by the Chief Judge of the Court of Appeals; one member, who shall be a lawyer, shall be selected by the Presiding Justice of the Appellate Division of such department; and two members, who shall not be enrolled in the same political party, at least one of whom shall be a lawyer, shall be selected jointly 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. The Chairman of each Departmental Judicial Nominating Committee shall be appointed by the Governor from among the members of the Committee. Each member of the Committee shall be a resident of, have an office in, or work in the judicial department in which he or she is to serve. In making selections for the Departmental Judicial Nominating Committees, consideration shall be given to the need to achieve broad representation of the community.

Each Departmental Judicial Nominating Committee shall have jurisdiction to consider the qualifications of candidates for designation to the offices of Justice, Temporary Justice and Presiding Justice of the Appellate Division of the Supreme Court for such department, and candidates for appointment to the office of Supreme Court Justice for such department, and to recommend to the Governor persons who are well qualified for those judicial offices.

When exercising the power to designate the Presiding Justice of each Appellate Division pursuant to Section 4(c) of Article VI of the Constitution; or the power to designate other Justices of each Appellate Division pursuant to Sections 4(c) and 4(d) of Article VI of the Constitution; or the power to designate additional Justices of any Appellate Division pursuant to Section 4(e) of Article VI of the Constitution; or the power to fill a vacancy in the office of Justice of the Supreme Court pursuant to Section 21(a) of Article VI of the Constitution, the Governor shall designate or appoint only persons who have been recommended by the appropriate Departmental Judicial Nominating Committee as well qualified for the judicial office to which the appointment is to be made.

4. There is hereby established in each county of the State a County Judicial Nominating Committee, consisting of the judicial nominating committee for the department in which the county is located plus two additional persons who shall be residents of, have an office in, or work in the county in which they are to serve, to be selected by the chief executive officer of the county, one of whom shall be a lawyer, and one of whom shall be a non-lawyer, provided, however, that the two persons so selected shall not be enrolled in the same political party. The Chairman of the Departmental Judicial Nominating Committee shall also serve as Chairman of the County Judicial Nominating Committee.

As used herein, the term chief executive officer for the county shall mean the appointed or elected county executive, as the case may be, or if there be no such office, the chairman of the governing body of the county provided, however, that for counties within the City of New York, the term chief executive officer for the county shall mean the Mayor of the City of New York.

Each County Judicial Nominating Committee shall have jurisdiction to consider the qualifications of candidates for appointment to the offices of Judge of the County Court, Judge of the Surrogate's Court, and Judge of the Family Court outside of the City of New York, for such county, and to recommend to the Governor persons who are well qualified for those judicial offices.

When exercising the power of appointment to fill a vacancy in the office of Judge of the County Court, of Judge of the Surrogate's Court, or of Judge of the Family Court outside of the City of New York, pursuant to section 21(a) of Article VI of the Constitution, the Governor shall appoint only persons who have been recommended by the appropriate County Judicial Nominating Committee as well qualified for the judicial office to which the appointment is to be made.

5. No member of a judicial nominating committee shall hold any judicial or elected public office for which he shall receive compensation during his period of service, nor shall he hold any office in any political party. No member of a judicial nominating committee 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. Members of judicial nominating committees shall receive reimbursement for any necessary expenses incurred by them in connection with the performance of their duties. Each judicial nominating committee shall have a paid staff available to it sufficient to enable the committee to properly carry out its responsibilities including adequate investigations into all matters relevant to the qualifications of candidates for appointment to judicial office. The committee shall not pass on the qualifications of any candidate for appointment until after a thorough inquiry has been made by the committed and its staff.

Signed: Hugh L. CareyDated: February 21, 1975

[FN*] [Revoked and superseded by Executive Order No. 9 (Mario M. Cuomo) § 4.9, infra.]

N.Y. Comp. Codes R. & Regs. Tit. 9 § 3.5