Panel Sources: One Member Balked at Applying Correct Standard for Review of Ling-Cohan

Update: Ling-Cohan was elected without opposition at the Manhattan Democrats judicial nominating convention Thursday night’s (Sept.22).

 

The screening of Manhattan Justice Doris Ling-Cohan for a second term on the bench was marred by a panel member who openly stated that, rather than following the 22-member panel’s rules, she would vote “my conscience.”

One panelist, who requested anonymity, had a firm recollection of what happened. In response to the reading of the standard that applied to the panel’s deliberations, a second panelist, whom the source identified as Brenda Gill, quoted her as saying, “I don’t care what the standard is, I am voting my conscience.”

Gill declined to comment upon the other panelists’ remarks, stating this matter “has been blown way out of proportion with political factions pushing their agenda, misstating facts and coloring things to support their versions of the facts.”

Under the Manhattan Democratic Party’s rules, the panel must measure judges against their own record and determine that it “merits continuation in office.” Candidates, vying for an open seat, face a more exacting test in that they must show that they are the most highly qualified within the pool of aspirants for the post.” NY Co. Dems Rules, p.6. Highlighted para. (4).

A second panelist confirmed the essential outlines of what the first reported Gill as saying. The second panelist reported checking with yet a third panelist, who recalled the incident with more specific detail.

The second panelist, however, described Gill’s remarks as “off-hand” and “inconsequential.” Gill consistently voted against candidates, who had temperament problems, that source said, warning that some factions were spinning what happened during the deliberations to their advantage.

The two panelists, who spoke to me directly, also reported that Cyril K. Bedford, the panel’s administrator, let Gill’s remark stand uncorrected and made no effort to ascertain whether she would, in fact, follow the applicable standard. Bedford did not respond to requests for comment.

Normally, panel deliberations are confidential, but after the controversy over the disapproval of Ling-Cohan on Aug. 30 became public, and the source of heated controversy, Manhattan’s Democratic Party County Leader Keith Wright and Curtis Arluck, the chair of the Manhattan Judiciary party, issued statements releasing the panelists from their confidentiality obligation.

These latest developments have surfaced with the party’s nominating convention poised to vote this evening on which of 21 eligible candidates will receive the party’s nomination for six open seats on the Manhattan Supreme Court. In  a rare move tacitly accepted to by the party’ executive committee, Ling-Cohan’s name is being permitted to be put before the convention’s 84 delegates even though she has not received the screening panel’s approval.

Clear-Cut Violation of Rule

Whether Gill’s remark was casual or reflected an intent to defy the correct standard for evaluating an incumbent candidate is inconsequential. Here’s why.

What makes Gill’s reported statement so significant is that it runs directly afoul of a clear-cut party rule, forbidding the appointment of a panelist, who “shall not have agreed to follow the guidelines established by the Committee.” NY Co. Dems Rules, p. 5 Highlighted para. (2). The rule is stronger than a “guideline” issued by the County Party’s Committee because it is a part of the New York County Democrats official rules on file with the New York City Board of Elections.

Further, under the official rules, the panel’s report must be submitted to the Judiciary Committee “immediately” for a determination that the report complies with “these Rules and the Guidelines established by the Committee.”NY Co. Dems Rules, p.6, Highlighted para. (5) .

The Judiciary Committee promptly accepted the panel’s report, and a public rally was held on Sept. 6 denouncing Ling-Cohan’s rejection. Curtis Arluck, a co-chairman of the party’s Judiciary Committee, was quoted in news articles published the next day, Sept. 7 that the decision was final but that the Judiciary Committee would explore whether it could be overturned.

Over the next two weeks, the Judiciary Committee took no action to overturn the ruling, and, to the contrary, relied upon a party rule that expressly states that the panel “shall have no power to make any change in its report after the final meeting.” NY Co.Dems Rules p.6, Highlighted para. (5).

The problem here is that the Judiciary Committee DID ACCEPT the report and has steadfastly refused to examine the merits of many of the improprieties alleged by Ling-Cohan and a substantial majority of the panel members in letters written to the Judiciary Committee in letters dated Sept. 7, Sept. 11 and Sept. 14.

Further, the party’s rules are quite clear that the report may not be accepted unless they “comply” with all applicable rules. NY Co. Dems Rules, p.6. Highlighted para. (5). Many alleged departures from the rules have been cited in the three letters sent by panel members to the Judiciary Committee. The Sept. 7 letter, which contains the substance of the panelists’ concerns, mentions that at “least one panel” member, who was not identified, stated he or she would not follow the guidelines.

Not following the required standard for review stands in direct and unambiguous conflict with members’ required commitment to follow the rules. The convention will vote as planned tonight and party insiders are confident that Ling-Cohan will be elected without opposition.

That is good for her, but not good for the panel system, which is pretty much in tatters after more than two-weeks of heated controversy. There is no time to conduct an inquiry before the vote takes place, which makes it all the more imperative that the party conduct a full investigation and make public its findings and recommended remedial measures.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Majority Protests Panel’s Disapproval of Ling-Cohan; Dems Response Remains Murky

Fifteen of the members of the screening panel, which found Manhattan Justice Doris Ling-Cohan unqualified for a second term, have written to the Democratic Party’s judiciary committee to demand that panel’s initial finding be reversed. Curtis Arluck, the chairman of the Manhattan Democrats’ judiciary committee confirmed the receipt of the letter in an interview yesterday.

Arluck called the letter “very significant,” and stated that in his personal view the Judiciary Committee should be reconvened to consider how to respond to it. Because today is Election Day, he said, he would attempt to reconvene the committee, possibly as early as tomorrow. Arluck declined to comment upon the contents of the letter or whether they should be made public.

My sources, however, report that the letter is very wide ranging in detailing instances of impropriety, including conflicts of interest, during the committee’s deliberations. Under party rules, the Judiciary Committee is required to adopt the findings of the 22-members of the panel unless it finds improprieties in the screening process or that the committee failed to follow its own rules.

Without the release of the full contents of the letter, the outlook for a full examination of the information it has brought to the party’s attention remains in doubt. Without full disclosure, Ling-Cohan quest to clear her name may fall short even though a majority of the panel has objected to the way it went about its work. Likewise, the public will lack meaningful assurance that whatever flaws marred its work will be remedied.

Should the Judiciary Committee follow Arluck’s suggestion, this will be the second time the committee will have reviewed the panel’s work to determine whether it should accept the panel’s findings. The panel voted on Aug. 30 in a report signed by 20 of the committee’s 22 members. Two apparently did not attend the meeting.

 

Ling-Cohan’s Objections

Shortly after the panel completed its work, and before the Judiciary panel met to decide that it was acceptable, Ling-Cohan wrote to the committee to demand a new review, claiming that “people with clear conflict of interest at the meeting surely influenced the process,” according to an article published in the Gay City News on Sept. 6. To a similar effect, the Post’s article published yesterday paraphrased Arluck as saying that Ling-Cohan had suggested in her letter “there were a few people on the panel, who had a personal axe to grind because of her unfavorable rulings toward them.”

Ling-Cohan has enormous appeal in Manhattan’s political environment, which is heavily Democratic and distinctly liberal. She not only was the first Asian- American woman elected to the Supreme Court. She was also the first judge in New York State to have ruled that same-sex marriage is constitutionally protected and has been a staunch supporter of tenant’s rights as both a trial judge and a member of the Appellate Term in Manhattan.

Last week the Manhattan party leaders back-pedaled and made significant concessions to Ling-Cohan at the expense of party rules setting up the panel system in 1977 as a bulwark against allowing political considerations to compromise the selection of the party’s candidates for judgeships.

Despite its ironclad rule that the party could not endorse candidates not approved by the panel, the party’s executive committee last week agreed to condone the submission of Ling-Cohan’s name for nomination at the party’s judicial convention, which will be held on Sept. 22, even though she had failed to gain the panel’s approval.

 

Lingering Questions Remain

Yesterday’s article in the New York Post quoted Arluck as conceding that the panel had failed to adhere to its standards, which require that incumbent judges get the benefit of the doubt. But that leaves the lingering question of whether improprieties need to be examined. Late yesterday evening, the New York Law Journal posted an article on line, with today’s date (Sept. 13) on it, quoting extensively from the letter that Arluck had referred to earlier in my interview with him yesterday evening. The Law Journal also reported the committee members had emailed their objections to Arluck on Sunday.

The Law Journal further reported that it had obtained copies of two letters written by different groups of panelists and one from Ling-Cohan. In the version of the Law Journal article I read on line last night, there was no indication that the article linked to the full documents, as is its usual practice.

The Law Journal article did not use the words “impropriety” or “conflict,” but quoted from a letter sent by panel members to Arluck, which referred to a panel member who “apparently had an unfavorable outcome” from Ling-Cohan, as having “vigorously and insistently pushed an issue” that was germane to the panel’s decision to disapprove Ling-Cohan. The writers of the letter specifically noted that some members of the panel were unfamiliar with the issue the panelist had so forcefully raised but were given no time to research it before the panel voted.

Moreover, Ling-Cohan may not be satisfied with a resolution that does not clear her name. The New York Post’s article, breaking the news that the panel had found Ling-Cohen unqualified, reported that the panel had rejected her because she was “lazy” and “slow” in handling her cases. The Ling-Cohan camp did not immediately respond to an email asking whether she would insist upon a full-scale inquiry into the panel’s handling of her review.

The Manhattan Democratic party adopted its screening procedures nearly 40 years ago to assure the public that the old ways of Tammany Hall were dead and long gone. The screening process was specifically designed by Upper West Side reformers, led by former Corporation Counsel Victor Kovner, to assure the public that the party’s judicial nomination process is free from outside influences.

The Manhattan Democrats must conduct a full investigation of Ling-Cohan’s and 15 panel members’ claims and issue a public report detailing any irregularities uncovered and the remedies devised to prevent their re-occurrence. Without those steps, the public will not have confidence that the type of tampering Ling-Cohan and some members have complained about will never again taint future reviews of judicial candidates.