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Bad News For Margarita Lopez Torres Who Loses Her Bid to Return NYC to a Fair and Independent Judicial Selection Process
The U.S. Supreme Court declines to oppose Eliot Spitzer and party control in New York City by denying a return to a court system independent of partisan interests, saying "Rule of law is secured only by the principled exercise of political will. If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. But, as the Court today holds, and for further reasons given in this separate opinion, the present suit does not permit us to invoke the Constitution in order to intervene." Now it is up to our legislators who, supported by Governor Spitzer, do not want their power over judges to be usurped in any way.
   Margarita Lopez Torres (left) and supporter David Yassky   
From Editor Betsy Combier:
"We in New York State and New York City, in particular, will continue to be victimized by the corrupt judicial system after the US Supreme Court rules the party-dominated appointment process in NYC constitutional.

Shame on them."

Court Lets 'Party Boss' Law Stand, Reluctantly
By Robert Barnes, Washington Post Staff Writer
Thursday, January 17, 2008; A02

If it's possible for Supreme Court justices to uphold a law while holding their noses, that's what happened yesterday when the court delivered a unanimous victory for party bosses and "smoke-filled rooms" in New York.

The state's convoluted process for electing trial court judges may discourage outsiders, empower party bosses and even be bad policy, the court said, but it is constitutional.

"None of our cases establishes an individual's constitutional right to have a 'fair shot' at winning the party's nomination," Justice Antonin Scalia wrote for the court.

Challengers to the system have asserted that it is almost impossible for a candidate to be elected as a New York Supreme Court judge -- the name the state gives its trial courts -- without being a party nominee. Since 1921, the state has allowed the parties to employ a complicated system of petitions, delegates and conventions to choose their nominees for the general election, a process that gives great sway to party leaders.

The U.S. Court of Appeals for the 2nd Circuit agreed with unsuccessful candidates and a watchdog group that challenged the system and struck it down.

But the Supreme Court said there is nothing in New York's process that violates the Constitution. "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates," Scalia wrote.

More broadly, the opinion said, "A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform."

Still, in upholding New York's process, some members of the court were highly critical of it.

Justice Anthony M. Kennedy wrote a concurring opinion, joined by Justice Stephen G. Breyer, that said New York should consider a change. The concept of judicial independence is hurt "if the state is indifferent to a selection process open to manipulation, criticism and serious abuse."

Justice John Paul Stevens, joined by Justice David H. Souter, also wrote separately to "emphasize the distinction between constitutionality and wise policy." Stevens added: "But, as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions, 'The Constitution does not prohibit legislatures from enacting stupid laws.' "

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certiorari to the united states court of appeals for the second circuit

No. 06-766. Argued October 3, 2007--Decided January 16, 2008

Under New York's current Constitution, State Supreme Court Justices are elected in each of the State's judicial districts. Since 1921, New York's election law has required parties to select their nominees by a convention composed of delegates elected by party members. An individual running for delegate must submit a 500-signature petition collected within a specified time. The convention's nominees appear automatically on the general-election ballot, along with any independent candidates who meet certain statutory requirements. Respondents filed suit, seeking, inter alia, a declaration that New York's convention system violates the First Amendment rights of challengers running against candidates favored by party leaders and an injunction mandating a direct primary election to select Supreme Court nominees. The Federal District Court issued a preliminary injunction, pending the enactment of a new state statutory scheme, and the Second Circuit affirmed.

Held: New York's system of choosing party nominees for the State Supreme Court does not violate the First Amendment. Pp. 5-12.

(a) Because a political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform, a State's power to prescribe party use of primaries or conventions to select nominees for the general election is not without limits. California Democratic Party v. Jones, 530 U. S. 567, 577. However, respondents, who claim their own associational right to join and have influence in the party, are in no position to rely on the right that the First Amendment confers on political parties. Pp. 5-7.

(b) Respondents' contention that New York's electoral system does not assure them a fair chance of prevailing in their parties' candidate-selection process finds no support in this Court's precedents. Even if Kusper v. Pontikes, 414 U. S. 51, 57, which acknowledged an individual's associational right to vote in a party primary without undue state-imposed impediment, were extended to cover the right to run in a party primary, the New York law's signature and deadline requirements are entirely reasonable. A State may demand a minimum degree of support for candidate access to a ballot, see Jenness v. Fortson, 403 U. S. 431, 442. P. 7.

(c) Respondents' real complaint is that the convention process following the delegate election does not give them a realistic chance to secure their party's nomination because the party leadership garners more votes for its delegate slate and effectively determines the nominees. This says no more than that the party leadership has more widespread support than a candidate not supported by the leadership. Cases invalidating ballot-access requirements have focused on the requirements themselves, and not on the manner in which political actors function under those requirements. E.g., Bullock v. Carter, 405 U. S. 134. Those cases do not establish an individual's constitutional right to have a "fair shot" at winning a party's nomination. Pp. 7-10.

(d) Respondents' argument that the existence of entrenched "one-party rule" in the State's general election demands that the First Amendment be used to impose additional competition in the parties' nominee-selection process is a novel and implausible reading of the First Amendment. Pp. 10-12.

462 F. 3d 161, reversed.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Stevens, J., filed a concurring opinion, in which Souter, J., joined. Kennedy, J., filed an opinion concurring in the judgment, in which Breyer, J., joined as to Part II.

New York State Board of Elections v. Torres
U.S. Sup. Ct.
(U.S. Sup. Ct. 01/16/2008)

Cite as 07 C.D.O.S. 554





No. 06-766

In the Supreme Court of the United States

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit


Filed January 16, 2008

Justice Scalia delivered the opinion of the Court.


The State of New York requires that political parties select their nominees for Supreme Court Justice at a convention of delegates chosen by party members in a primary election. We consider whether this electoral system violates the First Amendment rights of prospective party candidates.

The Supreme Court of New York is the State's trial court of general jurisdiction, with an Appellate Division that hears appeals from certain lower courts. See N. Y. Const., Art. VI, §§7, 8. Under New York's current Constitution, the State is divided into 12 judicial districts, see Art. VI, §6(a); N. Y. Jud. Law Ann. §140 (West 2005), and Supreme Court Justices are elected to 14-year terms in each such district, see N. Y. Const., Art. VI, §6(c). The New York Legislature has provided for the election of a total of 328 Supreme Court Justices in this fashion. See N. Y. Jud. Law Ann. §140a (West Supp. 2007).

Over the years, New York has changed the method by which Supreme Court Justices are selected several times. Under the New York Constitution of 1821, Art. IV, §7, all judicial officers, except Justices of the Peace, were appointed by the Governor with the consent of the Senate. See 7 Sources and Documents of the U. S. Constitutions 181, 184 (W. Swindler ed. 1978). In 1846, New York amended its Constitution to require popular election of the Justices of the Supreme Court (and also the Judges of the New York Court of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI, §12). In the early years under that regime, the State allowed political parties to choose their own method of selecting the judicial candidates who would bear their endorsements on the general-election ballot. See, e.g., Report of Joint Committee of Senate and Assembly of New York, Appointed to Investigate Primary and Election Laws of This and Other States, S. Doc. No. 26, pp. 195219 (1910). The major parties opted for party conventions, the same method then employed to nominate candidates for other state offices. Ibid.; see also P. Ray, An Introduction to Political Parties and Practical Politics 94 (1913).

In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees (and most other nominees who did not run statewide) through direct primary elections. Act of Oct. 18, 1911, ch. 891, §45(4), 1911 N. Y. Laws 2657, 2682. The primary system came to be criticized as a "device capable of astute and successful manipulation by professionals," Editorial, The State Convention, N. Y. Times, May 1, 1917, p. 12, and the Republican candidate for Governor in 1920 campaigned against it as "a fraud" that "offered the opportunity for two things, for the demagogue and the man with money," Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to select their candidates for the Supreme Court by a convention composed of delegates elected by party members. Act of May 2, 1921, ch. 479, §§45(1), 110, 1921 N. Y. Laws 1451, 1454, 1471.

New York retains this system of choosing party nominees for Supreme Court Justice to this day. Section 6106 of New York's election law sets forth its basic operation: "Party nominations for the office of justice of the supreme court shall be made by the judicial district convention." N. Y. Elec. Law Ann. §6106 (West 2007). A "party" is any political organization whose candidate for Governor received 50,000 or more votes in the most recent election. §1104(3). In a September "delegate primary," party members elect delegates from each of New York's 150 assembly districts to attend the party's judicial convention for the judicial district in which the assembly district is located. See N. Y. State Law Ann. §121 (West 2003); N. Y. Elec. Law Ann. §§6124, 8100(1)(a) (West 2007). An individual may run for delegate by submitting to the Board of Elections a designating petition signed by 500 enrolled party members residing in the assembly district, or by five percent of such enrolled members, whichever is less. §§6136(2)(i), (3). These signatures must be gathered within a 37-day period preceding the filing deadline, which is approximately two months before the delegate primary. §§6134(4), 6158(1). The delegates elected in these primaries are uncommitted; the primary ballot does not specify the judicial nominee whom they will support. §7114.

The nominating conventions take place one to two weeks after the delegate primary. §§6126, 6158(5). Each of the 12 judicial districts has its own convention to nominate the party's Supreme Court candidate or candidates who will run at large in that district in the general election. §§6124, 6156. The general election takes place in November. §8100(1)(c). The nominees from the party conventions appear automatically on the general-election ballot. §7104(5). They may be joined on the general-election ballot by independent candidates and candidates of political organizations that fail to meet the 50,000 vote threshold for "party" status; these candidates gain access to the ballot by submitting timely nominating petitions with (depending on the judicial district) 3,500 or 4,000 signatures from voters in that district or signatures from five percent of the number of votes cast for Governor in that district in the prior election, whichever is less. §§6138, 6142(2).


Respondent Lopez Torres was elected in 1992 to the civil court for Kings County a court with more limited jurisdiction than the Supreme Court having gained the nomination of the Democratic Party through a primary election. She claims that soon after her election, party leaders began to demand that she make patronage hires, and that her consistent refusal to do so caused the local party to oppose her unsuccessful candidacy at the Supreme Court nominating conventions in 1997, 2002, and 2003. The following year, Lopez Torres together with other candidates who had failed to secure the nominations of their parties, voters who claimed to have supported those candidates, and the New York branch of a public-interest organization called Common Cause brought suit in federal court against the New York Board of Elections, which is responsible for administering and enforcing the New York election law. See §§3102, 3104. They contended that New York's election law burdened the rights of challengers seeking to run against candidates favored by the party leadership, and deprived voters and candidates of their rights to gain access to the ballot and to associate in choosing their party's candidates. As relevant here, they sought a declaration that New York's convention system for selecting Supreme Court Justices violates their First Amendment rights, and an injunction mandating the establishment of a direct primary election to select party nominees for Supreme Court Justice.

The District Court issued a preliminary injunction granting the relief requested, pending the New York Legislature's enactment of a new statutory scheme. 411 F. Supp. 2d 212, 256 (EDNY 2006). A unanimous panel of the United States Court of Appeals for the Second Circuit affirmed. 462 F. 3d 161 (2006). It held that voters and candidates possess a First Amendment right to a "realistic opportunity to participate in [a political party's] nominating process, and to do so free from burdens that are both severe and unnecessary." Id., at 187. New York's electoral law violated that right because of the quantity of signatures and delegate recruits required to obtain a Supreme Court nomination at a judicial convention, see id., at 197, and because of the apparent reality that party leaders can control delegates, see id., at 198200. In the court's view, because "one-party rule" prevailed within New York's judicial districts, a candidate had a constitutional right to gain access to the party's convention, notwithstanding her ability to get on the general-election ballot by petition signatures. Id., at 193195, 200. The Second Circuit's holding effectively returned New York to the system of electing Supreme Court Justices that existed before the 1921 amendments to the election law. We granted certiorari. 549 U. S. ___ (2007).



A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981) ; California Democratic Party v. Jones, 530 U. S. 567, 574575 (2000) . These rights are circumscribed, however, when the State gives the party a role in the election process as New York has done here by giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot. Then, for example, the party's racially discriminatory action may become state action that violates the Fifteenth Amendment . See id., at 573. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party's nominating process, enabling it to prescribe what that process must be. Id., at 572573. We have, for example, considered it to be "too plain for argument" that a State may prescribe party use of primaries or conventions to select nominees who appear on the general-election ballot. American Party of Tex. v. White, 415 U. S. 767, 781 (1974) . That prescriptive power is not without limits. In Jones, for example, we invalidated on First Amendment grounds California's blanket primary, reasoning that it permitted non-party members to determine the candidate bearing the party's standard in the general election. 530 U. S., at 577. See also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214217 (1986) .

In the present case, however, the party's associational rights are at issue (if at all) only as a shield and not as a sword. Respondents are in no position to rely on the right that the First Amendment confers on political parties to structure their internal party processes and to select the candidate of the party's choosing. Indeed, both the Republican and Democratic state parties have intervened from the very early stages of this litigation to defend New York's electoral law. The weapon wielded by these plaintiffs is their own claimed associational right not only to join, but to have a certain degree of influence in, the party. They contend that New York's electoral system does not go far enough does not go as far as the Constitution demands in assuring that they will have a fair chance of prevailing in their parties' candidate-selection process.

This contention finds no support in our precedents. We have indeed acknowledged an individual's associational right to vote in a party primary without undue state-imposed impediment. In Kusper v. Pontikes, 414 U. S. 51, 57 (1973) , we invalidated an Illinois law that required a voter wishing to change his party registration so as to vote in the primary of a different party to do so almost two full years before the primary date. But Kusper does not cast doubt on all state-imposed limitations upon primary voting. In Rosario v. Rockefeller, 410 U. S. 752 (1973) , we upheld a New York State requirement that a voter have enrolled in the party of his choice at least 30 days before the previous general election in order to vote in the next party primary. In any event, respondents do not claim that they have been excluded from voting in the primary. Moreover, even if we extended Kusper to cover not only the right to vote in the party primary but also the right to run, the requirements of the New York law (a 500-signature petition collected during a 37-day window in advance of the primary) are entirely reasonable. Just as States may require persons to demonstrate "a significant modicum of support" before allowing them access to the general-election ballot, lest it become unmanageable, Jenness v. Fortson, 403 U. S. 431, 442 (1971) , they may similarly demand a minimum degree of support for candidate access to a primary ballot. The signature requirement here is far from excessive. See, e.g., Norman v. Reed, 502 U. S. 279, 295 (1992) (approving requirement of 25,000 signatures, or approximately two percent of the electorate); White, supra, at 783 (approving requirement of one percent of the vote cast for Governor in the preceding general election, which was about 22,000 signatures).

Respondents' real complaint is not that they cannot vote in the election for delegates, nor even that they cannot run in that election, but that the convention process that follows the delegate election does not give them a realistic chance to secure the party's nomination. The party leadership, they say, inevitably garners more votes for its slate of delegates (delegates uncommitted to any judicial nominee) than the unsupported candidate can amass for himself. And thus the leadership effectively determines the nominees. But this says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership. No New York law compels election of the leadership's slate or, for that matter, compels the delegates elected on the leadership's slate to vote the way the leadership desires. And no state law prohibits an unsupported candidate from attending the convention and seeking to persuade the delegates to support her. Our cases invalidating ballot-access requirements have focused on the requirements themselves, and not on the manner in which political actors function under those requirements. See, e.g., Bullock v. Carter, 405 U. S. 134 (1972) (Texas statute required exorbitant filing fees); Williams v. Rhodes, 393 U. S. 23 (1968) (Ohio statute required, inter alia, excessive number of petition signatures); Anderson v. Celebrezze, 460 U. S. 780 (1983) (Ohio statute established unreasonably early filing deadline). Here respondents complain not of the state law, but of the voters' (and their elected delegates') preference for the choices of the party leadership.

To be sure, we have, as described above, permitted States to set their faces against "party bosses" by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual's constitutional right to have a "fair shot" at winning the party's nomination. And with good reason. What constitutes a "fair shot" is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party's associational rights. But it is hardly a manageable constitutional question for judges especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a "fair shot" at party nomination. Party conventions, with their attendant "smoke-filled rooms" and domination by party leaders, have long been an accepted manner of selecting party candidates. "National party conventions prior to 1972 were generally under the control of state party leaders" who determined the votes of state delegates. American Presidential Elections: Process, Policy, and Political Change14 (H. Schantz ed. 1996). Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses. See ibid.

The Second Circuit's judgment finesses the difficulty of saying how much of a shot is a "fair shot" by simply mandating a primary until the New York Legislature acts. This was, according to the Second Circuit, the New York election law's default manner of party-candidate selection for offices whose manner of selection is not otherwise prescribed. Petitioners question the propriety of this mandate, but we need not pass upon that here. Even conceding its propriety, there is good reason to believe that the elected members of the New York Legislature remain opposed to the primary, for the same reasons their predecessors abolished it 86 years ago: because it leaves judicial selection to voters uninformed about judicial qualifications, and places a high premium upon the ability to raise money. Should the New York Legislature persist in that view, and adopt something different from a primary and closer to the system that the Second Circuit invalidated, the question whether that provides enoughof a "fair shot" would be presented. We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence. Selection by convention has been a traditional means of choosing party nominees. While a State may determine it is not desirable and replace it, it is notunconstitutional.


Respondents put forward, as a special factor which gives them a First Amendment right to revision of party processes in the present case, the assertion that party loyalty in New York's judicial districts renders the general-election ballot "uncompetitive." They argue that the existence of entrenched "one-party rule" demands that the First Amendment be used to impose additional competition in the nominee-selection process of the parties. (The asserted "one-party rule," we may observe, is that of the Democrats in some judicial districts, and of the Republicans in others. See 411 F. Supp. 2d, at 230.) This is a novel and implausible reading of the First Amendment .

To begin with, it is hard to understand how the competitiveness of the general election has anything to do with respondents' associational rights in the party's selection process. It makes no difference to the person who associates with a party and seeks its nomination whether the party is a contender in the general election, an underdog, or the favorite. Competitiveness may be of interest to the voters in the general election, and to the candidates who choose to run against the dominant party. But we have held that those interests are well enough protected so long as all candidates have an adequate opportunity to appear on the general-election ballot. In Jenness we upheld a petition-signature requirement for inclusion on the general-election ballot of five percent of the eligible voters, see 403 U. S., at 442, and in Munro v. Socialist Workers Party, 479 U. S. 189, 199 (1986) , we upheld a petition-signature requirement of one percent of the vote in the State's primary. New York's general-election balloting procedures for Supreme Court Justice easily pass muster under this standard. Candidates who fail to obtain a major party's nomination via convention can still get on the general-election ballot for the judicial district by providing the requisite number of signatures of voters resident in the district. N. Y. Elec. Law Ann. §6142(2). To our knowledge, outside of the Fourteenth and Fifteenth Amendment contexts, see Jones, 530 U. S., at 573, no court has ever made "one-party entrenchment" a basis for interfering with the candidate-selection processes of a party. (Of course, the lack of one-party entrenchment will not cause free access to the general-election ballot to validate an otherwise unconstitutional restriction upon participation in a party's nominating process. See Bullock, 405 U. S., at 146147.)

The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties' freedom of association), discourage party monopoly for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.

Limiting respondents' court-mandated "fair shot at party endorsement" to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into "one-party dominance." In the case of New York's election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts and in those districts that are "competitive" the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.

New York State has thrice (in 1846, 1911, and 1921) displayed a willingness to reconsider its method of selecting Supreme Court Justices. If it wishes to return to the primary system that it discarded in 1921, it is free to do so; but the First Amendment does not compel that. We reverse the Second Circuit's contrary judgment.

It is so ordered.

Justice Stevens, with whom Justice Souter joins, concurring.

While I join Justice Scalia's cogent resolution of the constitutional issues raised by this case, I think it appropriate to emphasize the distinction between constitutionality and wise policy. Our holding with respect to the former should not be misread as endorsement of the electoral system under review, or disagreement with the findings of the District Court that describe glaring deficiencies in that system and even lend support to the broader proposition that the very practice of electing judges is unwise. But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: "The Constitution does not prohibit legislatures from enacting stupid laws."

Justice Kennedy, with whom Justice Breyer joins as to Part II, concurring in the judgment.

The Court's analysis, in my view, is correct in important respects; but my own understanding of the controlling principles counsels concurrence in the judgment and the expression of these additional observations.


When a state-mandated primary is used to select delegates to conventions or nominees for office, the State is bound not to design its ballot or election processes in ways that impose severe burdens on First Amendment rights of expression and political participation. See Kusper v. Pontikes, 414 U. S. 51, 5758 (1973) ; see also California Democratic Party v. Jones, 530 U. S. 567, 581582 (2000) ; cf. Lubin v. Panish, 415 U. S. 709, 716 (1974) ; Bullock v. Carter, 405 U. S. 134, 144 (1972) ; Gray v. Sanders, 372 U. S. 368, 380 (1963) . Respondents' objection to New York's scheme of nomination by convention is that it is difficult for those who lack party connections or party backing to be chosen as a delegate or to become a nominee for office. Were the state-mandated-and-designed nominating convention the sole means to attain access to the general election ballot there would be considerable force, in my view, to respondents' contention that the First Amendment prohibits the State from requiring a delegate selection mechanism with the rigidities and difficulties attendant upon this one. The system then would be subject to scrutiny from the standpoint of a "reasonably diligent independent candidate," Storer v. Brown, 415 U. S. 724, 742 (1974) . The Second Circuit took this approach. 462 F. 3d 161, 196 (2006).

As the Court is careful to note, however, New York has a second mechanism for placement on the final election ballot. Ante, at 4. One who seeks to be a Justice of the New York Supreme Court may qualify by a petition process. The petition must be signed by the lesser of (1) 5 percent of the number of votes last cast for Governor in the judicial district or (2) either 3,500 or 4,000 voters (depending on the district). This requirement has not been shown to be an unreasonable one, a point respondents appear to concede. True, the candidate who gains ballot access by petition does not have a party designation; but the candidate is still considered by the voters.

The petition alternative changes the analysis. Cf. Munro v. Socialist Workers Party, 479 U. S. 189, 199 (1986) ("It can hardly be said that Washington's voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election").

This is not to say an alternative route to the general election exempts the delegate primary/nominating convention from all scrutiny. For instance, the Court in Bullock, after determining that Texas' primary election filing fees were so "patently exclusionary" on the basis of wealth as to invoke strict scrutiny under the Equal Protection Clause,rejected the argument that candidate access to the general election without a fee saved the statute. 405 U. S., at 143144, 146147 ("(W)e can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations in order to avoid the burdens of the filing fees"). But there is a dynamic relationship between, in this case, the convention system and the petition process; higher burdens at one stage are mitigated by lower burdens at the other. See Burdick v. Takushi, 504 U. S. 428, 448 (1992) (Kennedy, J., dissenting) ("The liberality of a State's ballot access laws is one determinant of the extent of the burden imposed by the write-in ban; it is not, though, an automatic excuse for forbidding all write-in voting"); Persily, Candidates v. Parties: Constitutional Constraints on Primary Ballot Access Laws, 89 Geo. L. J. 2181, 22142216 (2001). And, though the point does not apply here, there are certain injuries (as in Bullock) that are so severe they are unconstitutional no matter how minor the burdens at the other stage. As the Court recognized in Kusper, moreover, there is an individual right to associate with the political party of one's choice and to have a voice in the selection of that party's candidate for public office. See 414 U. S., at 58. On the particular facts and circumstances of this case, then, I reach the same conclusion the Court does.


It is understandable that the Court refrains from commenting upon the use of elections to select the judges of the State's courts of general jurisdiction, for New York has the authority to make that decision. This closing observation, however, seems to be in order.

When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections.

Still, though the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.

Even in flawed election systems there emerge brave and honorable judges who exemplify the law's ideals. But it is unfair to them and to the concept of judicial independence if the State is indifferent to a selection process open to manipulation, criticism, and serious abuse.

Rule of law is secured only by the principled exercise of political will. If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. But, as the Court today holds, and for further reasons given in this separate opinion, the present suit does not permit us to invoke the Constitution in order to intervene.


With these observations, I concur in the judgment of the Court.

Surrogate's Court And Why It Should Go
by Gary Tilzer, Gotham Gazette, 04 Jul 2005

Last week, Brooklyn Surrogate's Court Judge Michael Feinberg was removed from the bench because he committed misconduct by improperly awarding nearly $9 million in fees to attorney Louis R. Rosenthal, his long-time friend. The fees in question were taken from the estates of Brooklyn's dead, their widows and orphans.

In a unanimous decision, the state's highest court upheld Feinberg's ouster by the Commission on Judicial Conduct and ruled that his actions "debased his office and eroded public confidence in the integrity of the judiciary."

Feinberg never denied he gave the money to his friend -- in fact he freely admits he did -- but said the payments were justified and in keeping with long-time practice in Brooklyn Surrogate's Court.

Surrogate Feinberg was among a small group of judges, lawyers and politicians who make their living from a court that for over 100 years has been at the center of judicial, legal and political corruption in New York City. Yet it has survived many attempts to eliminate it.

If anything, today's politicians are more shameless than ever. On June 24, the entire New York State government acted to ensure that the Brooklyn Surrogate's Court will continue to benefit politicians and politically connected lawyers. In the middle of the night, both houses of the legislature passed a bill to create 21 new judgeships throughout the state -- including a second Surrogate's Court judge in Brooklyn. The bill was submitted by Governor George Pataki and passed later the same day -- without any hearings or public discussion. Since the law will take effect August 1, after the filing date for the September primary, Brooklyn's political leaders -- the very same people who selected Feinberg -- will get to choose another judge.

This latest episode and the disclosure of Feinberg's abuses should serve as an impetus finally to eliminate the court that Senator Robert Kennedy called "a political toll booth exacting tribute from widows and orphans." Once informally known as "the widows and orphans court," the Surrogate's Court handles estates from people who die without a proper will. In doing this, it funnels millions of dollars a year to lawyers who serve as guardians.

The prospect of appointing lucrative guardianships has motivated generation after generation of machine politicians and establishment lawyers to capture a Surrogate spot for one of their trusted judges, who then spreads the largesse among the party faithful. Often the fees they charge eat up substantial assets. For example, reclusive tobacco heiress Doris Duke, who died in 1993, wanted her estate of $1.2 billion to go toward the improvement of humanity. But a dispute over the estate in Manhattan Surrogate's Court became what one lawyer called the "world series of litigation," with big name law firms vying for a piece of the pie.

Play Gotham Gazette's Judges Game!!

The political establishment and media seem to have lost past generations' moral outrage at the corruption there. Even the well-informed tend to see Surrogate Feinberg's misconduct and other similar incidents as isolated problems. This year three candidates are vying for a rare open seat on Manhattan Surrogate's Court, but the campaign has not featured any debate over the way the court works.

Earlier this year, political consultant Norman Adler told the New York Observer that politicians cherish the court for "the same reason Willie Sutton robbed banks: That's where the money is."

And the well-connected ones get it. "The courts are so political that almost nothing is decided purely on the merits," wrote the late journalist Jack Newfield in 2001, one of the few consistently outraged critics of the court.

The examples establish a clear pattern.

The Commission on Judicial Conduct found that the attorney-friend appointed by Surrogate Feinberg was so entrenched that he prepared the Surrogate's decisions on fees awarded to attorneys in the form of Post-it notes.

Between 1997 and 2001, according to Newfield, the law firm of Queens Democratic Party leader Tom Manton received more than $400,000 in court patronage.

In 1987 a government investigation accused the Public Administrator for Manhattan Surrogate Renee Roth of using the court as a racketeering enterprise. The administrator resigned after he was accused of stealing $1 million from three clients. And a 1998 bar association report found that about two-thirds of Roth's guardianship appointments went to campaign contributors or to lawyers who worked for firms that contributed.

Some of the abuses have been even more blatant. In 1987, Surrogate's Court investigators were captured on videotape stealing valuables from the apartments of the deceased; they had been hired to inventory the property.

The state regulates all aspects of Surrogate's Court -- except the public administrator that every Surrogate's Court judge appoints, who is under the city's purview. This dual control has provided a convenient way out for auditors. In 2002, the Daily News reported that, during his eight-year tenure, State Comptroller Carl McCall never audited the Brooklyn Surrogate's Court's Public Administrator. McCall's office insisted he never took a look because then-city Comptroller Alan Hevesi was already auditing the Brooklyn court. Hevesi did -- but never discovered that Judge Michael Feinberg was awarding excessive fees without proper documentation to his friend Louis Rosenthal.

The problems with Surrogate's Court go beyond individual instances of corruption; they are systemic.

There is absolutely no reason to maintain a separate Surrogate's Court. Under the New York State Constitution, the State Supreme Court already shares jurisdiction on anything the Surrogate's Court might handle -- estates, appointments of guardians and conservators, and adoptions. And so, abolishing the Surrogate would not leave a sudden void in our judicial system.

In Supreme Court and Family Court, cases are randomly assigned to a stable of judges. But there is only one Surrogate each for Queens, Staten Island, and the Bronx. Manhattan has two, and now so will Brooklyn. Putting the management of millions of dollars in assets under the purview of just one or two judges creates a recipe for patronage and corruption. Abolishing the court, and dispersing its functions and cases among the many Supreme Court and Family Court judges in each county would go a long way toward breaking up the patronage mill. But because of the big money involved and the powerful people who benefit from the court, every attempt to abolish or reform it in the past has ended in failure.

In the 1930s, Mayor Fiorello La Guardia called Surrogate's Court "the most expensive undertaking establishment in the world." He believed it was control of the Surrogate's Court of New York County, more than any other factor, that kept the Tammany Hall political machine alive through the lean years when he deprived it of city jobs and President Franklin Roosevelt denied it federal jobs.

In 1938, the New York Bar Association called for the merger of the Surrogate's Court and the Supreme Court to eliminate corruption. In 1948, the Americans for Democratic Action called for a legislative campaign to reduce the patronage in the Surrogate Court. In the 1950s a commission put together to end the abuses of Tammany Hall urged the elimination of the Surrogate's Court by merging its functions with the Supreme Court. These recommendations came to naught.

The movement to abolish the court reached its peak in the 1960s. Citizens Union urged the system of appointing special guardians be abolished and replaced by a staff of salaried public officials who could act for minors, widows and incompetents. Robert Kennedy endorsed this idea, saying the salaried public guardians "would eliminate patronage from the Surrogate's Courts and dry up a major source of sustenance for the worst elements in our political parties." But, almost as soon as Kennedy made the proposal, representatives of the bar association and many of the city's Surrogate judges attacked it. And the senior Manhattan surrogate at the time, Samuel DiFalco, who had been elected with the help of the Manhattan Democratic machine, blocked reforms.

Ironically, calls for the elimination of the Surrogate's Court disappeared as reformers assumed power in the city. In 1977, Edward Koch ran for mayor, attacking the Democratic machine. Soon after his election, though, Koch did what most reform politicians do after defeating a machine: make a deal with it. Though Koch set up panels to screen candidates for judgeships, presumably based on merit, as time went on, the erstwhile reformers became more and more dependent on contributions and support from the machine politicians and the law firms that benefit from Surrogate patronage. Since then, Koch himself – along with other prominent politicians, including former Governor Mario Cuomo -- has been the beneficiary of the Surrogate's Court. Koch, for example, received $77,000 for a guardianship in 2001 and 2002, according to the New York Observer. "I'm on the list of people who are qualified," Koch told the Observer. "They're very careful to prevent [the court] from being used as a trough."

Today, every candidate who runs for Surrogate pledges to make "reforms" and end the court's patronage. Once elected, they do nothing. This is so widespread that it hardly even counts as irony that a New York Times editorial in 1996 endorsed the now-fired Surrogate Feinberg with the words: "Justice Feinberg has promised reforms ranging from a panel to screen appointments and recommend changes in how the place is run, down to keeping the office open at lunchtime as a convenience to the public."

With Feinberg's removal, people interested in running for his seat will have two weeks to try to collect the 4,000 signatures to get on the ballot. If two or more candidates qualify as Democratic candidates, there would be a primary contest for Feinberg's seat.

But this would not be the case for the second Surrogate's post the state government created last month. Even veteran political observers were astounded by the addition of a second Surrogate's Court in Brooklyn in the middle of the removal process for the current Surrogate -- without giving citizens the right to vote in a primary.

That's right, there will be no primary for the new position. Albany in effect gave Brooklyn Democratic leader Clarence Norman a big role in picking who will select the new Surrogate for that borough. Norman awaits trial for extorting money from past judicial candidates and supported Feinberg for Surrogate's Court in 1998. And whomever Norman and his cronies choose is virtually guaranteed to win the November general election, and serve 14 years before they have to run again.

The only chance of derailing this seems to lie in Washington. Because Brooklyn comes under the federal voting rights act, the plan for a second Surrogate's judge might need Justice Department approval.

Ten years before Feinberg's removal, the same State Commission on Judicial Conduct that removed him censured his predecessor, Bernard Bloom. Bloom's censure was one step short of removal. Then the political machine that picked Bloom selected Feinberg. Now that very same machine that chose the two discredited judges is likely to select at least one—and perhaps two - more Surrogates.

In setting the stage for this, Albany once again has provided evidence that, in a legislature where almost every incumbent gets re-elected, there are no consequences for taking the low road. The government's action also sends the message that politics still trumps justice in New York.

Gary Tilzer is a political consultant whose articles have appeared in the New York Sun, the Village Voice and other local publications.

Editor's Note 8/9/05: Gary Tilzer began work June 30th, 2005 on the campaign of Margarita Lopez Torres, a candidate to replace Feinberg as Brooklyn Surrogate's Court Judge

Courthouses are built with an imposing facade,
with the words chiseled in stone,
"We who labor here seek only the truth".

Words of Mass Deception

The rhetoric is convincing less and less individuals that the United States is a country of laws, with the best legal system protected by a constitution guaranteeing that no one shall be deprived of life, liberty and property without due process of law. This is becoming more and more a coverup for the thievery in the name of justice. The extent of the callous disregard for the truth and of the law still leaves those who come in touch with what is supposed to be a "civil" court system shell shocked. It is still difficult to accept that where the constitution is flaunted as an inalienable right it has become discretionary with many judges whether they follow its dictates. Even if finally a party prevails in a lawsuit it is at an enormous financial cost and expense of time and can be a traumatic experience.

All these constitutional rights have been reduced to a meaningless rhetoric where they have become unenforceable, including in the federal courts, . Unfortunately, many judges have assumed the position that their job is to confiscate your money, your assets, your property to curry favors with lawyers and other judges. The facts are whatever suits the end result. Once in a blue moon a judge is apprehended by the system as you may read in our News and Articles but, that is the exception, a make believe that it is a few judges who taint the system, a mere cover-up to allow the lawless business of justice to continue as usual in the courts. It is coming to that a victim has a better chance to escape from the jaws of a shark in the ocean than in the courthouse.

Lawsuits are now being filed in the USA at the rate of over one hundred million a year. Where there is money to be made there will be a lawsuit. Lawyers can walk into the courthouse to file a lawsuit and sue anyone, even on fabricated facts, that berate the opponent and is tailored into a lawsuit on some legal theory or resembling one, which is then often treated by the courts as a lawsuit worthy to be litigated. Many of these lawsuits have nothing to do with right or wrong, the facts and the law, but are based on the desire to extract money or property from the party sued and of course fees for lawyers. The case becomes simply a means to transfer assets to enrich some in the legal profession, a holdup with a pen. America is no longer the land of opportunity it is the land of the opportunist.

When a potential plaintiff walks into a lawyer’s office, before filing a lawsuit, the lawyer will ascertain if the potential defendant has sufficient assets, especially when the attorney is working on a contingency fee basis. Prior to commencing a lawsuit, the plaintiff’s attorney will perform a financial investigation of the target defendant’s assets, seeking to locate any real estate, bank accounts or other valuable property. If the investigation reveals that the defendant has substantial assets the lawsuit will proceed. If all the facts are not there, as can be seen from some of the individual cases presented here by CJA, facts can be created and even falsified as a means to achieve the desired end.

In many types of litigation the plaintiff can obtain from the court a pre-judgment writ of attachment, or a restraining order, or secure the appointment of a receiver for the property, effectively freezing all of the defendant’s funds pending the outcome of the case. This is often the single most potent weapon available to the plaintiff. Without access to funds to meet business and personal expenses the defendant will not be able to survive financially during the lawsuit. The tactic will usually force a defendant to enter into an unfavorable settlement regardless of the merits of his or her defenses. Even where no property is frozen just the potential expense of a litigation will force a defendant into an unfavorable settlement, which is often akin to turning the civil justice system into legalized extortion.

In cases where there is no contingency fee, or where a defendant seeks to retain counsel, the attorney will investigate the finances of his client. The attorney will take a substantial fee in advance, generally at an hourly rate of over a hundred dollars or several hundred dollars depending on the "prestige" of the attorney or of the "firm". When that retainer fee is used up in the manner accounted for it by the attorney, more fees are extracted, often at a crucial time, such as when an important response is due or even on the eve of a trial. If the client fails to comply the attorney threatens withdrawal from the case.

In cases where no property is involved, but the case is based on some kind of claim, where David is facing Goliath, in spite of the evidence it may very well be that it is Goliath who is going to prevail, or depending on which way the interest of power struc-ture lies. Lawyers who dare to tip the balance of power, or speak out on wrongdoing, may be ostracized and are even punished by suspension or disbarment. A function of the lawyer is to keep the client under control. A person who goes to court without an attorney called a "pro se" litigant, is disfavored by the judges and such litigants are often treated unfairly. The United States Court of Appeal for the The Ninth Circuit's Prepared an Interim Report titled "Task Force on Self-Represented Litigants", which shows a deferential treatment of the self represented. A formidable response has been prepared by the organization A Matter of Justice, "Comments on the Ninth Circuit pro se Task Force Report" setting forth the problems faced the pro se litigant. However, it is noteworthy that this maybe the case even if the litigant is represented by counsel. To read the report and comments click here. Since intimidation is obviously one of the tools of the legal system, it is essential not to be intimated and to know what your legal rights are. Also in many cases alternative dispute resolution by mediation or arbitration may be more desirable in the least it saves time and the exorbitant legal fees. A recent approach is the Collaborative Practice which is different from mediation. A a neutral, third party helps the disputing parties settle their case. In collaborative practice, the spouses and their attorneys make these decisions in four way discussions click here.

Some people maybe lucky to have avoided involvement in litigation, but upon their death it may very likely catch up with all that they possessed and worked for in their lifetime. The personal representatives of decedent’s estate and their lawyers are guaranteed their fees by statute and they receive additional fees if there is litigation. They become the unnamed true heirs of the decedent, because their fees as "administrative expenses" come first. However, that involvement may come sooner in the lifetime of the individual such as upon becoming incapacitated in an accident or because of advancing years a guardianship maybe set up. If there are no liquid assets then the property of the ward and even the ward’s home may be liquidated, to provide funds. Both in probate and guardianship cases the assets of the decedent and ward come under control of the court. The presiding judge awards the fees to the personal representatives, to the guardians, their lawyers, accountants and so forth from the estate of the decedent or incapacitated person. So, that the fees are usually not negotiable not even by the immediate family.

The fees are generally based on "billable hours", which in practice means whatever is billed by the attorney, often turning it into the "billable horrors". Even if objections are filed to the fees, if there is money the fees are generally approved by the presiding judge. Billable hours often include traveling time to court and other non-legal activities charged at an hourly basis as legal fees by attorneys, which have been adopted by other professionals such as accountants and so forth. Often the time to bill the "billable hours" and if there is a hearing on it that time is also billed. Also more fees are charged to the estate for the time to defend against objections, which are also generally approved by the court. It is not unusual to have a whole estate or a substantial portion of it converted to court appointees under disguise of fees and expenses. This is often the case in other type of cases where the court has the authority to award fees, such as in divorce, bankruptcy, foreclosure, and so forth. The divorce industry is a very lucrative practice, especially with clients of means. In many cases as long as the parties have the money the litigation goes on, condoned by the judges. So, that no matter how many judges there are it is never enough. In effect these lawyers with their endless litigation are subsidized by the public.

The trials and tribulations of the middle class litigants who are stripped of their property, of their livelihood, or of their rights, are generally not news worthy and so they are rarely if ever reported by the news media. What gets coverage are the sensational murder trials, or lawsuits involving large corporations with deep pockets, who are hit with a big judgment creating the impression that justice has been done. We at CJA receive numerous complaints. We are presenting here a few these cases in detail as told by the victims based on the record, to make the public aware of what transpires in court with regard to these silenced litigants and to demand reform from governmental bodies. The general response that ours is an adversary system where one party wins and it is the disgruntled loser who complains cannot be applied on cart blanche basis. Not when a party fails to prevail because the law and the facts of the case are disregarded, or the laws and rules and changed or because of other illegal and unlawful activities by the judges and lawyers. It has become common standard to dispose of motions or of even cases with a mere "denied"; "dismissed"; labeling it "res judicata" when those matters were never heard. The "Rule of Law" has been become to mean, those who rule make the laws to suit their own objectives.

A recent study on data compiled by the federal court system, was prepared by Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association. The study shows that only 1.8% of the civil cases in federal court go to trial. William G. Young, the chief judge of the Federal District Court in Boston, said in a telephone interview, that this "is nothing less than the passing of the common law adversarial system that is uniquely American." We know that this change is not a positive but is detrimental to many litigants. It is no longer a litigant's right to have their day in court, but "now they have their day on papers submitted". The study found that in 1962 a federal judge conducted an average of 39 civil and criminal trials a year, but have now dwindled it down to 13 a year. The judges spend the rest of their time on deciding pretrial motions and urging or approving settlement and plea bargain. To read more on this issue click here. However, what is omitted is that federal judges have magistrate judges and much of this work is done by them, with the federal judges merely putting their stamp of approval on it. The same is apparent in state court, where litigants are also denied their day in court, too often cases ending not in well reasoned orders and judgments, but what amounts to judicial edicts. What this obviously ads up to is the constitutional denial of due process, the right to be heard, to present and receive evidence and to give and take testimony. Although, it has been found that the public prefers jury trial over judge it has been found that plea bargaining and arbitration are often resorted to avoid costly trials click here.

Should an appeal be taken, often that is a mere pretense of a review by the higher court, which simply never happened just merely a PCA a rubber stamp, or some further fictionalized version of the case, supported with authorities that are relevant only to the fictionalized version and not to what was before the court. To add insult on injury this is carried out under the pretext that the victims have "constitutional rights". However, as the system is now administered in many cases these rights have become a mere illusion a rainbow in the sky.

Some of the cases presented here show the misuse of contempt powers by judges to intimidate and to eliminate opposition to whatever they wish to accomplish, to the extent of even throwing individuals into jail, middle class law abiding citizens whose only "crime" generally is an attempt to be heard in their cases. This treatment in some cases is also accorded to lawyers who fail to conform to the system. There is also retaliation against judges who expose wrongful activities in the courthouse. So, that the system operates in a "conspiracy of silence". Those who report corruption in the system are often described in derogatory terms such as "whistle-blower". We are also including articles by lawyers and reports and statistics from the courts telling us from the inside the pitfalls of the legal system. The Bar's and the judiciary's response to the complaints by the public is that they do not understand the legal system and their perception has to be changed, but without changing the practices that is objected to by the public.

However, many lawyers are coming to recognize that the legal profession is not the "noble profession" it pretends to be, but, it often brutalizes those it touches. That the objective is not to seek justice or finding reasonable resolutions to the conflict, but how to destroy the opponents by any means possible, such as nasty fights, vicious accusations, twisting the truth etc., to win at any price. Click here Incivility in court between lawyers is a growing problem. Click here The courts are not what it used to be is candidly described by a judge. Click here.

Yet another problem is a large segment of the population who do not qualify for legal aid or their problem is not one that qualifies for legal aid, or who do not have funds to retain counsel, or when they run out of money without resolution but, the litigation continues. These persons then often appear representing themselves known as pro se and many times receive unfavorable treatment in the courts. To read such concerns Click here. That does not mean that one should give up. If rights have been violated that is a reason for continuing on.

In a recent landmark decision the Florida Supreme Court quashed the lower court's appellate decision that approved the lower court judgment prohibiting the father from seeing his son for six years in a judgment that was not written by the trial judge but by the wife's lawyer. The Florida Supreme Court rejected that judgment because the trial judge discouraged the husband from submitting a proposed judgment and thereupon adopted the wife's lawyer's judgment in two hours without making any findings of fact. It was noted that the wife paid her attorneys $850,000. while the husband represented himself. In a specially concurring opinion one of the Justices recognized that "this case is an example of a continuing trend in appellate review in this state to apply the cloak of judicial discretion to approve lower court decisions riddled with errors. In rendering the decision today, this Court takes a modest step toward rectifying a pattern with which many have had a growing concern that we are alienating the public’s trust in the judiciary". To read further Click here.

As to criminal law see the article on a Report issued on prosecutorial misconduct by Center for Public Integrity. State and local prosecutors who bent or broke the rules to help put 32 innocent people in prison, some under death sentence, since 1970, according to the first nationwide study of prosecutorial misconduct. To read more about it Click here.

The United States Chamber of Commerce Institute for Legal Reform (ILR) released a study showing the tort system costs U.S. small businesses $88 billion a year. "As a small business owner, I have seen first-hand the devastating effect legal costs can have on small businesses," said Maura Donahue, Vice President of Donahue/Favret Contractors, Inc., of Mandeville, Louisiana, and Chair of the U.S. Chamber's Small Business Advisory Council. "Money that should be used to expand and hire new employees is instead siphoned off to pay for legal costs. Small business owners are the engine that drives the U.S. economy. They create 75% of the new jobs in this country, but are clearly being handcuffed by a steep rise in frivolous litigation." The study, conducted for ILR by NERA Economic Consulting, found that the total annual cost of the tort system to U.S. businesses (large and small) is $129 billion per year. Small businesses with $10 million or less in revenue bear 68 percent of that cost, paying $88 billion a year. That equates to about $150,000 a year for each small business - money that could be used to hire additional employees, expand operations or improve health coverage. For full story Click here.

However, it is not only financial losses that is suffered by individuals but, the failure of the legal system has been found by a noted psychologist, Karin Huffer to inflict severe psychological harm as well on the victims, to which she coined the terms "Legal Abuse Syndrome" a form of "Post Traumatic Stress Disorder". The victims are traumatized not only by the crass treatment accorded to them in the courtroom, but upon being confronted by the fact that fundamental civil rights guaranteed under the U.S. Constitution are trampled upon. Many victims do start out represented by attorneys, but unable to continue to pay their fees, or out of frustration end up as pro se litigants. They continue on the litigation in some faint hope that the truth and law will prevail or it must prevail because that is what the constitution and the law says. However, that would apply only in a court of law, administered by men and women of honesty and integrity, but unfortunately not where the judiciary have manipulated the system to place themselves above and beyond the law.

9th CIRCUIT: Task Force on Self-Represented Litigants

© 2003 The E-Accountability Foundation