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Open Government

Open Government

The Failure of Civilian Oversight


I had the honor of serving as the first executive director of New York City's Civilian Complaint Review Board, the city's official oversight agency for the police department, when it was set up in 1993. I have also served as director of the Advocate's Office of the New York City Police Department and as the executive director of the Philadelphia official police oversight agency.

In my experience of over two decades in the field of police-community relations, I have found that, for a civilian oversight agency to work effectively, it must be strongly and overtly independent. It must also have not only the passive cooperation of the police commissioner and mayor but their active commitment and involvement. The agency's leader and staff also must listen and learn from their critics, be they the police, the community, advocates or other stakeholders.

Unfortunately, that does not seem to be the case today in New York City. New Yorkers want and need a police department that understands and accepts it is accountable to the public it serves. The Civilian Complaint Review Board must vigorously enforce that accountability. If the board cannot do that, maybe it should be dismantled.

A report recently released by the New York Civil Liberties Union, Mission Failure: Civilian Review of Policing in New York City, 1994 -- 2006, concludes that by these standards the board has failed. (See related story.) The report cites the Civilian Complaint Review Board for many specific failures ranging from failing "to establish an effective investigative operation" to "showing extreme deference to the police department."

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A quick reading of the CCRB's Status Report for 2006 reveals just how extensively its mission and operations have been either co-opted or suppressed by the police department. This annual status report by the board to the public almost always puts the police department in the best possible light while directing attention away from potentially serious issues like bias or racial profiling. However as complaints continue to rise -- 2006 saw a record 7,669 complaints, including a record number of 25,452 allegations filed -- the track record of the CCRB and Police Department become even more conspicuous and troublesome.

More than half of all complaints made to the board are dismissed without an investigation. The board substantiates only 5 percent of complaints, a figure well below the national average. Even in those cases where an officer is found to have acted properly, the penalty is light. In three quarters of the cases in 2006, the officer received the lightest penalty --- a marked increase from 2000 when less than 25 percent were punished that way. On the other hand, far fewer officers now face the stiffer penalties of suspensions or lost vacation days.

This is very disturbing. But what are even more outrageous are the defensive and dismissive responses to the report by the police department and board itself.

Police Commissioner Raymond Kelly has made a real effort to show by his words and actions that he is serious about improving police-community relations as well as policing, especially with regard to communities of color. But he does himself and the city a major disservice by dismissing the record 89 percent increase in the number of complaints filed by the public with the CCRB since 2000 as merely a by-product of the city's 311 call-in system. The CCRB itself, in its 2006 Status Report: July to December, clearly states that the 311 system is not the sole cause of the increase. Similarly, the police commissioner contradicts his efforts and insults our intelligence by rejecting the NYCLU's report out-of-hand as nothing more than a left-wing, radical effort to smear the police.

In response to the report, the chairwoman of the Civilian Complaint Review Board told reporters that the agency has performed its mission "extraordinarily well." While not as strident as the police response, such defensive efforts by the board's less strident to deflect the Civil Liberties Union criticism are also a disservice to the Civilian Complaint Review Board and the city.

Hector W. Soto, Esq. is a senior fellow with the National Institute for Latino Policy (NiLP). He is currently working on a study of police-community relations in major American cities. He also teaches at the John Jay College on Criminal Justice.

 

Ms. Lopez Torres Goes to Washington


When Judge Margarita Lopez Torres launched her battle to get to the Supreme Court, it was the New York State Supreme Court in Brooklyn that she was reaching for. Instead, her challenge to Brooklyn politics and to the way New York state judges are elected, wound up this week at the Supreme Court of the United States.

The challenge that she lost in local Democratic clubhouses but won in the U.S. District Court and the U.S. Court of Appeals was argued at the highest court in the nation, the court of last resort. The nine justices heard arguments as the state sought to overturn the lower court rulings. They will now determine whether New York's system of electing State Supreme Court candidates is unconstitutional.

Lopez Torres, currently a Kings County Surrogate Court judge, arrived at the Washington courthouse on October 3 with her husband and her impressive legal team. But just as she could never get a seat at the table of Brooklyn judicial politics, Lopez Torres also was not seated at counsel table at the U.S. Supreme Court. She sat in the general audience without anyone seeming to notice who she was or that she was the person who started the case.

More than 20 New York State judges, all of whom have been elected under the convention system, were in the audience along with legal luminaries, including Victor Kovner, president of the Fund for Modern Courts and Arthur Eisenberg of the NY Civil Liberties Union.

The most formal of all American institutions, the home of the third branch of government is not your local family or criminal court. Silence in the courtroom! No water, no electronics, no cameras. But in a nod to modernity, the restrooms, at least the women's, do have baby-changing tables. There are strict seating arrangements as to where members of the Bar, the press and the public each enter and sit. Decorum is closely monitored. Note taking is banned, except for journalists. Seat reservations are required, though some space is available for the general public.

The Case

As a Civil Court judge, and a former poverty lawyer, Lopez Torres tried for several years to rise from the lower city court to the trial level state Supreme Court. She failed for reasons she contended had nothing to do with her qualifications and everything to do with politics and her refusal to defer to Brooklyn politicians. New York's system of electing the justices, she argued, lets those politicians control the process. Rather than being chosen in a party primary, candidates for the state Supreme Court are selected by delegates to a judicial convention. Those candidates are then virtually assured of election.

Lopez Torres, along with nine co-plaintiffs who are neither judges nor candidates for judgeships, brought suit against state Board of Elections challenging the system. They have succeeded thus far in convincing a federal trial judge and a mid-level appeals court that the convention system denies would-be judges and voters equal protection under the Constitution and violates the first amendment. This is not, however, a discrimination case.

Lopez Torres is represented by the Brennan Center for Justice at NYU School of Law and Arnold & Porter. On the other side, the New York County Democratic Committee, the New York Republican State Committee, the Associations of New York State Supreme Court Justice and the New York attorney general appeared in the case. Amicus, supportive briefs were submitted by numerous bar associations and organizations. The Asian American Bar Association of New York and the Mid-Manhattan Branch of the NAACP filed for the Board of Elections and the American Civil Liberties

Union

and the Asian American Legal Defense & Education Fund submitted briefs on Lopez Torres' side.

 

Presenting The Arguments

The arguments centered on whether the fact that a system "allows party leaders to defeat the aspirations" of a would-be candidate makes it unconstitutional. Early in the litigation, the state focused on defending against charges that the nominating process is "a fertile source of corruption ... that impedes the search for judicial excellence" and creates "a locked gate, to which those in control of the party machinery hold the key." Since then, the state has shifted from that to focusing on the rights of political organizations to control their procedures. These procedures, the state maintains, did not deny Lopez Torres access to the general electorate.

The question is whether candidates for state Supreme Court not favored by a political party's leadership have a First Amendment "associational" right to "a realistic opportunity to participate in the candidate selection process" and to free association with the voting public (and vice versa). While the current process may impose burdens on "insurgent candidates" or "disappointed office seekers," the state argues that that does not make the existing process invalid or unconstitutional.

Former U.S. Solicitor General Theodore Olson, representing the state Board of Elections, argued that reasonable access to the general election process is all that is required. Under the state's current system, he said, it may be difficult, but it is not impossible for someone to get on the general election ballot without organized political support. The requirements only become unreasonable, Olson argued, if the "insurgent" simply cannot get on the ballot. But, he noted, Lopez-Torres did gain some support at one convention and could have run in a general election with another party's backing or independently.

Olson also argued that judicial hopefuls have "no constitutional entitlement to interject themselves into the decision of a political party" as to who will be their candidate in the November election. In fact, Olson, an appellate lawyer well known to the justices, submitted in a written brief that the federal courts that denounced the convention system in this case had reached a "revolutionary conclusion."

Arguing for the New York County Democratic Committee, Andrew Rossman, the most riveting of the three lawyers who addressed the court, said that voters elect delegates to the convention and vote again in the general election. There is, he maintained, no constitutional right to a primary system or even to a direct relationship between the candidate and voter.

"The availability of a contest is key," Rossman argued. The fact that voters may be apathetic about judicial elections is "not a constitutional problem." In fact, Rossman reasoned, it is the delegates who have educated themselves, and who have "knowledge and motivation that is superior to that of the general voting public.".

 

The New York County Democratic Committee and the New York Republican State Committee contend that Lopez Torres had the opportunity to participate but did not have a right to demand more. Addressing the argument that the Democratic Party controls the process, they pointed out in written submissions that the last two mayors of New York City were elected as Republicans.

Representing the Brennan Center and the Lopez Torres plaintiffs, Frederick A.O. Schwarz Jr. stressed "the severe burdens placed on insurgents" makes it impossible for a candidate not in political favor to be elected. The fact that that has never happened, he said, leads to the inference that it cannot happen. Yet six judges had testified at the 2004 hearing that they had become candidates of the Democratic Party without the support of the leadership.

But just because a person cannot be elected does not mean the candidate did not have access to the process and the opportunity to participate or be considered, Justice David Souter interjected. He distinguished between "a right to success and a right to get a chance." Success versus access seemed to be the justice's test.

Still Schwarz described the present system as the "worst of all worlds." He relied on the opinion of the state chief judge, Judith M. Kaye (who is appointed and has never been elected), has said that the problems raised in this case are "systemic."

Olson, had the last word: "Party leaders acting like party leaders is expected. That doesn't make it unconstitutional."

Awaiting a Decision

The U.S. Supreme Court hears very few cases -- just 80 last year -- selecting only those it deems most important and far-reaching, or where lower court decisions have had contradictory results on an issue. Since New York's convention system for choosing Supreme Court justices is unique, observers were surprised that the case was placed on the docket. Some experts have speculated that the court might have accepted the case expressly so it could reverse the prior decision.

Unlike many cases coming before the court, this one does not have clear "liberal" or "conservative" positions. Nor are the justices' reputations or the questions they asked likely to provide any guide to how they view this case.

Some of the justices will give deference to the existing system because it was enacted by the state legislature. Douglas A. Kellner, a state election commissioner and a named defendant in this lawsuit, notes that some may liken the judicial convention delegates to delegates to presidential nominating conventions.

One New Yorker sits on the bench: Justice Ruth Bader Ginsberg. A native of Brooklyn, she grew up just a few miles from where Judge Lopez Torres lives. She, however, was appointed to the U.S. Court of Appeals in Washington by President Jimmy Carter and to the Supreme Court by President Bill Clinton and so was never involved in the state judicial system. Knowledgeable predictions are that she will vote to affirm the finding of unconstitutionality.

At a reception following the argument Rossman, who argued in favor of the current system, was asked how he thought it went. "I thought it went very well for us," he said. "I don't know how the vote will go but I'll take any five," referring to the majority needed for either side to prevail.

Standing alone at an elevator in the courthouse, Margarita Lopez Torres did not want to make any prediction, but whatever happens, she had her day in court.

A decision could come down anytime before the summer. While no bets were being taken, this column fully expects a reversal from the Supreme Court of the United States and a finding that the present convention system is not unconstitutional.

Emily Jane Goodman is a New York State Supreme Court Justice 

 

 

Proposed Legislation by Council Member


Member
Total Bills
Number of Bills that Passed
Number of Bills that Received a Hearing
Number of Bills Sent to Committee
Peter F. Vallone, Jr.
54
14
4
36
David I. Weprin
48
20
4
24
James F. Gennaro
47
13
15
19
David Yassky
47
11
10
26
Michael E. McMahon
46
11
9
26
Alan Gerson
42
7
10
25
Gale A. Brewer
39
6
7
26
Tony Avella
39
4
9
26
Christine C. Quinn
37
28
5
4
Vincent Gentile
35
10
5
20
John C. Liu
33
8
10
15
Erik Martin Dilan
25
13
1
11
Joseph P. Addabbo
24
9
2
13
Rosie Mendez
23
8
6
9
G. Oliver Koppell
23
6
7
10
Eric N. Gioia
22
8
2
12
Miguel Martinez
22
5
0
17
Domenic M. Recchia Jr.
21
9
4
8
Michael C. Nelson
21
3
5
12
Letitia James
20
6
2
12
Melinda R. Katz
19
8
1
10
Leroy G. Comrie Jr.
18
8
4
6
James S. Oddo
18
7
0
11
Joel Rivera
17
5
3
9
James Vacca
16
8
2
6
Lewis Fidler
16
4
3
9
Daniel R. Garodnick
15
6
3
6
Bill de Blasio
15
5
4
6
Simcha Felder
14
7
1
6
Helen D. Foster
14
4
3
7
Inez E. Dickens
13
8
2
3
Robert Jackson
13
5
5
3
Helen Sears
12
6
2
4
Hiram Monserrate
12
5
3
4
Diana Reyna
11
8
3
0
Melissa Mark Viverito
11
5
2
4
Jessica A. Lappin
10
4
2
4
Charles Barron
10
2
0
8
Thomas White, Jr.
9
9
0
0
James Sanders
8
3
2
3
Kendall Stewart
7
4
1
2
Maria Baez
7
3
2
2
Sara M. Gonzalez
7
3
3
1
Annabel Palma
7
2
3
2
Maria del Carmen Arroyo
6
6
0
0
Albert Vann
6
3
2
1
Dennis P. Gallagher
5
3
0
2
Larry B. Seabrook
5
3
1
1
Darlene Mealy
3
0
2
1
Mathieu Eugene
0
0
0
0
Vincent Ignizio
0
0
0
0

 



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