Monday, February 13, 2006

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 February 13, 2006 11 3:04 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR MARY O. DONOHUE, President 19 STEVEN M. BOGGESS, Secretary 20 21 22 23 24 25

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(518) 371-8910 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 please come to order. 4 I ask everyone present to please 5 rise and repeat with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 THE PRESIDENT: With us this 10 afternoon to give the invocation is Rabbi 11 Israel Rubin, outreach director from the 12 Chabad House in Albany. 13 RABBI RUBIN: Today is the 14 Tu B'Shevat, the New Year for Trees. In our 15 prayer we reflect on the tree's three major 16 parts: the roots, the trunk, and the 17 branches. 18 Deeply rooted in the cities, towns 19 and villages of our great state, the 20 distinguished members of this body join in one 21 central body to assure New York State's growth 22 through the branches of government. 23 Almighty God, we pray that the saps 24 stir within, that the juices flow, that the 25 good efforts of these distinguished men and

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(518) 371-8910 1 women bear fruit so our great state can 2 flourish and blossom with safety and security 3 for all. 4 Amen. 5 THE PRESIDENT: Reading of the 6 Journal. 7 THE SECRETARY: In Senate, 8 Sunday, February 12, the Senate met pursuant 9 to adjournment. The Journal of Friday, 10 February 10, was read and approved. On 11 motion, Senate adjourned. 12 THE PRESIDENT: Without 13 objection, the Journal stands approved as 14 read. 15 Presentation of petitions. 16 Messages from the Assembly. 17 Messages from the Governor. 18 Reports of standing committees. 19 Reports of select committees. 20 Communications and reports from 21 state officers. 22 Motions and resolutions. 23 Senator Meier. 24 SENATOR MEIER: Thank you, Madam 25 President.

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(518) 371-8910 1 On behalf of Senator Bruno, I move 2 that the following bills be discharged from 3 their respective committees and be recommitted 4 with instructions to strike the enacting 5 clause: Senate 5513. 6 THE PRESIDENT: So ordered. 7 Senator Meier. 8 SENATOR MEIER: They gave me a 9 heavy load today, Madam President. 10 On behalf of Senator Skelos, on 11 page number 22 I offer the following 12 amendments to Calendar Number 190, Senate 13 Print 488, and ask that said bill retain its 14 place on the Third Reading Calendar. 15 THE PRESIDENT: The amendments 16 are received, and the bill will retain its 17 place on the Third Reading Calendar. 18 SENATOR MEIER: Thank you, Madam 19 President. 20 Now, on behalf of Senator Bonacic, 21 on page 14 I offer the following amendments to 22 Calendar Number 96, Senate Print Number 6415, 23 and ask that said bill retain its place on the 24 Third Reading Calendar. 25 THE PRESIDENT: The amendments

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(518) 371-8910 1 are received, and the bill will retain its 2 place on the Third Reading Calendar. 3 SENATOR MEIER: Thank you, Madam 4 President. 5 Now, on behalf of Senator Golden, 6 on page number 16 I offer the following 7 amendments to Calendar Number 122, Senate 8 Print 3828A, and ask that said bill retain its 9 place on the Third Reading Calendar. 10 THE PRESIDENT: The amendments 11 are received, and the bill will retain its 12 place on the Third Reading Calendar. 13 SENATOR MEIER: Thank you, Madam 14 President. 15 THE PRESIDENT: Senator Winner. 16 SENATOR WINNER: Thank you, Madam 17 President. 18 I move that the following bills be 19 discharged from their respective committees 20 and be recommitted with instructions to strike 21 the enacting clause: Senate Bill 960, 1358, 22 1490, and 3094. 23 THE PRESIDENT: So ordered. 24 Senator Skelos. 25 SENATOR SKELOS: Madam President,

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(518) 371-8910 1 if we could go to the noncontroversial reading 2 of the calendar. 3 THE PRESIDENT: The Secretary 4 will read. 5 THE SECRETARY: Calendar Number 6 75, by Senator Maziarz, Senate Print 2569A, an 7 act to amend the Labor Law, in relation to 8 appointments. 9 THE PRESIDENT: Read the last 10 section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 THE PRESIDENT: Call the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 48. Nays, 16 1. Senator Duane recorded in the negative. 17 THE PRESIDENT: The bill is 18 passed. 19 THE SECRETARY: Calendar Number 20 76, by Senator Maziarz, Senate Print 3108A, an 21 act to amend Part E2 of Chapter 62 of the Laws 22 of 2003, relating to establishing. 23 THE PRESIDENT: Read the last 24 section. 25 THE SECRETARY: Section 2. This

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(518) 371-8910 1 act shall take effect immediately. 2 THE PRESIDENT: Call the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes, 49. 5 THE PRESIDENT: The bill is 6 passed. 7 THE SECRETARY: Calendar Number 8 77, by Senator Maziarz, Senate Print 3109A, an 9 act to amend the Labor Law, in relation to 10 state apprenticeship. 11 THE PRESIDENT: Read the last 12 section. 13 THE SECRETARY: Section 2. This 14 act shall take effect on the 90th day. 15 THE PRESIDENT: Call the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes, 50. Nays, 18 1. Senator Duane recorded in the negative. 19 THE PRESIDENT: The bill is 20 passed. 21 THE SECRETARY: Calendar Number 22 94, by -- 23 SENATOR GONZALEZ: Lay it aside. 24 THE PRESIDENT: The bill is laid 25 aside.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 102, by Senator Balboni, Senate Print 931, an 3 act to amend the Vehicle and Traffic Law, in 4 relation to aggravated unlicensed operation. 5 THE PRESIDENT: Read the last 6 section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the 90th day. 9 THE PRESIDENT: Call the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes, 51. 12 THE PRESIDENT: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 126, by Senator Volker, Senate Print 194, an 16 act to amend the Penal Law, in relation to 17 assaults. 18 THE PRESIDENT: Read the last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 THE PRESIDENT: Call the roll. 23 (The Secretary called the roll.) 24 THE SECRETARY: Ayes, 51. 25 THE PRESIDENT: The bill is

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(518) 371-8910 1 passed. 2 THE SECRETARY: Calendar Number 3 127, by Senator Maltese, Senate Print 274, an 4 act to amend the Penal Law, in relation to 5 clarifying. 6 THE PRESIDENT: Read the last 7 section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the first of 10 November. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 51. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 130, by Senator Little, Senate Print 719A, an 18 act to amend the Penal Law, in relation to 19 increasing the penalties for hazing. 20 THE PRESIDENT: Read the last 21 section. 22 THE SECRETARY: Section 4. This 23 act shall take effect on the first of 24 November. 25 THE PRESIDENT: Call the roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes, 51. 3 THE PRESIDENT: The bill is 4 passed. 5 THE SECRETARY: Calendar Number 6 131, by Senator Trunzo, Senate Print 851, an 7 act to amend the Penal Law, in relation to 8 prohibiting stalking. 9 THE PRESIDENT: Read the last 10 section. 11 THE SECRETARY: Section 5. This 12 act shall take effect on the first of 13 November. 14 THE PRESIDENT: Call the roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes, 51. 17 THE PRESIDENT: The bill is 18 passed. 19 THE SECRETARY: Calendar Number 20 159, by Senator Fuschillo, Senate Print 1865, 21 an act to amend the Judiciary Law, in relation 22 to practicing. 23 THE PRESIDENT: Read the last 24 section. 25 THE SECRETARY: Section 3. This

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(518) 371-8910 1 act shall take effect on the 60th day. 2 THE PRESIDENT: Call the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes, 51. 5 THE PRESIDENT: The bill is 6 passed. 7 THE SECRETARY: Calendar Number 8 161, by Senator Meier, Senate Print 2507A, an 9 act to amend the Family Court Act, in relation 10 to orders of disposition. 11 THE PRESIDENT: Read the last 12 section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 THE PRESIDENT: Call the roll. 16 THE SECRETARY: Ayes, 51. Nays, 17 1. Senator Duane recorded in the negative. 18 THE PRESIDENT: The bill is 19 passed. 20 THE SECRETARY: Calendar Number 21 185, by Senator Larkin, Senate Print 1735, an 22 act to amend the Alcoholic Beverage Control 23 Law, in relation to authorizing. 24 THE PRESIDENT: Read the last 25 section.

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(518) 371-8910 1 THE SECRETARY: Section 7. This 2 act shall take effect on the 180th day. 3 THE PRESIDENT: Call the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes, 52. 6 THE PRESIDENT: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 9 193, by Senator Meier, Senate Print 5392A, an 10 act to amend the Social Services Law, in 11 relation to termination. 12 THE PRESIDENT: Read the last 13 section. 14 THE SECRETARY: Section 3. This 15 act shall take effect on the 90th day. 16 THE PRESIDENT: Call the roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes, 52. 19 THE PRESIDENT: The bill is 20 passed. 21 THE SECRETARY: Calendar Number 22 220, by Senator DeFrancisco, Senate Print -- 23 SENATOR SCHNEIDERMAN: Lay it 24 aside. 25 THE PRESIDENT: The bill is laid

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(518) 371-8910 1 aside. 2 Senator Skelos, that completes the 3 noncontroversial reading of the calendar. 4 SENATOR SKELOS: Thank you, Madam 5 President. If we could ring the bells to 6 alert the members that we're going to the 7 controversial calendar. 8 THE PRESIDENT: The Secretary 9 will ring the bell, and the members should 10 return to their seats so we can begin the 11 controversial calendar. 12 The Secretary will read. 13 THE SECRETARY: Calendar Number 14 94, by Senator Bonacic, Senate Print 1768A, an 15 act to amend the Environmental Conservation 16 Law. 17 THE PRESIDENT: Senator Bonacic. 18 SENATOR BONACIC: Thank you, 19 Madam Chairman. 20 This is a bill that would require 21 the DEC commissioner, in anticipation of a 22 major inflow of water into the city's west of 23 the Hudson reservoirs, to make regulations to 24 provide that no significant overflow occurs. 25 We want to amend Section 15-0805 of the

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(518) 371-8910 1 Environmental Conservation Law. 2 What I would like to do is just 3 give a little background of why this bill is 4 necessary. Right now, the City of New York 5 owns six reservoirs west of the Hudson River. 6 They own 13 small ones on the east of the 7 Hudson River. Our legislation only is 8 addressing the six reservoirs on the west of 9 the Hudson River. They are, specifically, the 10 Ashokan, the Schoharie, the Rondout, the 11 Pepacton, the Neversink, and the Cannonsville. 12 The city -- my remarks now, when I 13 say the city, this is not addressed to the 14 City of New York. It's addressed to the DEP, 15 the Department of Environmental Protection, 16 who has the obligation to make sure the dams 17 are safe and to collect, store, and deliver 18 water to New York City residents. 19 They have not done well with their 20 mission. They have said that they are not in 21 the flood control business. And this is the 22 problem. When those dams fill to a hundred 23 percent capacity -- and as of Thursday, 24 because that's the latest reading I have, five 25 of those dams are over a hundred percent

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(518) 371-8910 1 capacity, and the Rondout is about 2 95 percent -- they do not take steps to 3 release some of that water now. Because, come 4 April, when we have the snow melt, when we 5 have the rains, we get tremendous floods that 6 causes loss of life and damage and destruction 7 to the homeowners that live below those dams. 8 Now, why is this bill necessary? 9 The DEP shows a lack of concern for the safety 10 of constituents and residents of upstate 11 counties. These words that the City of New 12 York shows a lack of concern for the safety of 13 residents and constituents in upstate counties 14 are words spoken four days ago by Congressman 15 Mike McNulty at an Assembly hearing in 16 Schenectady. 17 I'm going to talk about why the 18 bill is necessary, and I'm going to talk 19 numbers. Number one, 30 million. That is the 20 number of gallons of raw sewage which the DEP 21 allowed to spill into the East River -- 22 nothing to do with my reservoirs, our 23 reservoirs -- the East River, because they 24 failed to put a generator on several sewage 25 treatment plants, something they said they had

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(518) 371-8910 1 in their design two years ago. 2 The number 2, the number of times a 3 federal judge has ordered the DEP to be under 4 court-ordered supervision for malfeasance 5 since 2000 alone. 6 The number 18, the number of months 7 a DEP dam inspector was submitting sham, 8 photocopied dam inspection reports of the six 9 dams west of the Hudson River. The number 10 $55,000 is the salary of his boss of the DEP 11 employee reviewing and approving these sham, 12 photocopied dam inspection reports. 13 That goes to dam safety. We have 14 legislation that will be before you in the 15 near future to talk about dam safety. 16 Now I've already talked about the 17 36 million, the number of gallons per day of 18 water leaking from the city's Delaware 19 Aqueduct. So much for them caring about a 20 drought. 21 160 is the number of litigants 22 presently suing the DEP for flood damage in 23 federal and state courts -- people from 24 Delaware County, Sullivan County, and Ulster 25 County is getting ready.

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(518) 371-8910 1 Eight, the number of people killed 2 in the 1968 floods near the reservoirs in 3 Delaware and Schoharie County. 4 Two, the number of people killed 5 last year in Ulster and Sullivan County as a 6 result of the April 2005 floods. 7 And last but not least, 8 $80 million, which was the cost of property 9 damage in the mid-Hudson and Catskill region 10 from the floods. 11 Now, when you talk to DEP, they 12 say: We can't control the rain, we don't know 13 how long it's going to rain. What they can do 14 is they can take steps to lower the reservoir 15 levels in anticipation of snow melt and rain 16 forecast. They have not done that 17 intelligently. They have not even wanted to 18 entertain it. 19 Now, Gilboa Dam right now, which is 20 in Senator Seward's district, there's 21 structural damage. They're trying to lower 22 the level to fix it. That water they're 23 running into the other five reservoirs, 24 creating dangerous conditions. 25 Now, as to the Schoharie, called

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(518) 371-8910 1 the Gilboa Reservoir, now we know with 2 certainty that the scandalous history of 3 neglect on the part of New York City officials 4 has seriously compromised the integrity of the 5 Gilboa Dam. These are very strong, powerful 6 words. These words were spoken by Governor 7 Cuomo's Secretary of State, Gail Shaffer, four 8 days ago at an Assembly hearing. 9 Again, quoting Gail Shaffer, the 10 city has resisted any acknowledgment that 11 their purview of responsibilities should have 12 any flood control capabilities. They insist 13 that their sole priority in law is the 14 drinking water needs of the city. If so, we 15 must change the law. 16 Now, it is not my intention for one 17 minute to lower those levels where the city of 18 New York would not have enough drinking water 19 consumption. That's not the purpose of what 20 we're doing here, because we have a 21 partnership that started with the Watershed 22 Agreement in 1997. But the city will not 23 undertake flood control measures, and that's 24 where the problem lies. 25 I spoke to the Downsville Fire

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(518) 371-8910 1 Company last year, in 2005. The size of the 2 water coming over the Pepacton Dam was 13 feet 3 high. Over the dam. Now, damage has to do 4 with the force of the flow and how big the 5 waives are, like a tsunami. That has caused 6 the $80 million devastation just last year 7 alone. 8 Let me tell you what some of the 9 DEP are talking about when we try to get them 10 to talk about flood control. Now, this is the 11 DEP spokesman Ian Michaels: "Just because the 12 levels are high right now, we can't just go 13 releasing high-quality drinking water. Just 14 because we have extra water doesn't mean we 15 should give it up. But we do recognize the 16 needs and concerns of people downstream. New 17 York City would be willing to consider a 18 reasonable flood control plan that is based on 19 science and is based on a reasonable 20 expectation of being able to refill those 21 reservoirs every year." That was May 5, 2005. 22 Nothing in terms of flood control. 23 Chris Ward, a former DEP 24 commissioner, states: "Residents must 25 remember the Pepacton was not designed as a

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(518) 371-8910 1 flood control reservoir. It is unlikely that 2 peak flows will be much reduced. Communities 3 downstream should take steps to improve their 4 flood preparedness." That's what the former 5 commissioner has said. 6 Now, let me just talk to you about 7 the Pepacton and the Cannonsville. Two of 8 those reservoirs release water into the 9 Delaware river. There was a court decree, a 10 United States Supreme Court decree back in 11 1931; it was amended in 1954. There were four 12 states involved -- New York, Jersey, 13 Connecticut, Delaware. 14 The State of New York asked that 15 some of those waters be diverted to the City 16 of New York to enhance their drinking water 17 capacity for the residents. The court allowed 18 it. And there was a river master who would be 19 in control to -- if any of those flood levels 20 were going to change, and flow levels, you had 21 to go through him. 22 In 1961, they had a Delaware 23 Control Basin. Now, the jurisdiction of this 24 basin is ever if you want to release water off 25 the top of the Pepacton or the Cannonsville,

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(518) 371-8910 1 you have to go to this commission and ask for 2 permission with the four states. 3 Now, let me tell you what DEP has 4 done. Turtle steps. But they are now saying 5 well maybe we should be considering this. And 6 these are the turtle steps. They have gone to 7 this Delaware Commission and said: You know, 8 if we anticipate we have 10 inches of snow 9 surrounding the reservoirs and it will trigger 10 3 inches of filling it, we'll lower it 11 3 inches. The board agreed. That was a 12 turtle step. 13 They have gone back, within the 14 last week and said: If we anticipate we're 15 going to have 6 inches of rain -- nothing to 16 do with the snow melt -- they have a proposal: 17 Will you let us lower the water 18 proportionately, to get rid of some water. 19 What I'm telling you now about the 20 United States Supreme Court and these 21 restrictions has nothing to do with the other 22 four reservoirs, only the two, Cannonsville 23 and Pepacton. 24 The normal storage capacity at this 25 time to make sure that the New York City water

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(518) 371-8910 1 needs are met is roughly 82 percent. It's 2 spilling over today, I've told you, on five of 3 the reservoirs. I've had several members come 4 up last year in April and said: What's going 5 on? We're driving up the Thruway and 6 everything is flooded out. 7 Well, what's going on is we had 8 heavy rains, we had hurricanes, which was 9 God's act of nature, and no one controlled 10 that. But what we didn't have, we didn't have 11 a responsible DEP retrofitting their 12 reservoirs to allow -- to put valves in to be 13 releasing the waters when they get at these 14 dangerous high levels. And believe me, many 15 years we don't have this discussion. The 16 water levels are lower. We don't have to 17 engage in releasing water levels. 18 But lately, the past three years, 19 they've been abnormally high. And what we're 20 saying is we want the DEC to be able to work 21 with the DEP in regulating the release of 22 water when it's higher than the normal storage 23 capacity of those reservoirs. And they're 24 spilling over now. 25 April is always our dangerous

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(518) 371-8910 1 month. And, you know, in the last ten years, 2 many people have moved up to the Hudson Valley 3 and the Catskills, many city people. Many of 4 them have second homes. Maybe your children, 5 your grandchildren or your grandparents live 6 in these areas. And I say that it is 7 foreseeable that you could take responsible 8 acts to lower those levels without 9 jeopardizing the water supply capacity to 10 New York City. That's what this bill does. 11 And I would want -- if I could draw 12 an analogy. I've been thinking about being 13 how I could make an intelligent analogy. Take 14 a contractor in New York City with a big 15 wrecking ball, and the purpose is to take down 16 a building. And that contractor says: You 17 know what? If the wind blows level or it 18 rains heavily, I can't necessarily control the 19 swing of that wrecking ball. 20 And you have constituents that live 21 in co-ops, they live in these apartments, high 22 apartments, high-level apartments, heavy 23 density. They don't know, if the rain or the 24 wind comes, whether that wrecking ball will 25 hit their building.

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(518) 371-8910 1 That's how my residents feel every 2 time April comes and there's going to be heavy 3 rains, snow melt. And they live with this 4 anxiety every day. And I just told you last 5 year what the devastation was. 6 You know, April showers may bring 7 May flowers, but in my district it brings 8 death and destruction when those reservoirs 9 are abnormally high like they've been since 10 January of this year. 11 THE PRESIDENT: Senator Farley. 12 SENATOR FARLEY: Yes, thank you, 13 Madam President. 14 I rise in support of this because I 15 just want to bring to attention -- you 16 mentioned a hearing that was held in 17 Schenectady about the Gilboa Dam which is 18 involved with this and the potential for 19 flooding. This is a dam that is an accident 20 waiting to happen. And it could amount to a 21 loss of life of thousands of people in 22 Amsterdam and in Schenectady. 23 And, you know, before they had the 24 Sacandaga Reservoir, Albany used to flood, 25 Senator Breslin, every single year.

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(518) 371-8910 1 And should this Gilboa Dam, which 2 is in very bad shape, not get the attention 3 that it should -- and I think if we're asking 4 DEC to come in here and look at flood control, 5 there's a desperate need and an immediate need 6 to look at this. 7 I know that Senator Seward, my 8 seatmate here, has been deeply involved in 9 this issue. But it is one that is a crisis. 10 We know what happened with the hurricane in 11 New Orleans and the Gulf Coast. I'll tell 12 you, there's one with this Gilboa Dam, should 13 that ever let go, you not only won't have 14 drinking water in New York City, you'll have 15 loss of life throughout this area. 16 And it's -- I don't know that 17 there's any way that we could prepare for 18 that. And they're trying to go forward with 19 this area. But I think this is a time for 20 EnCon to step in and look at this situation. 21 I realize that this is somewhat of a parochial 22 issue for New York City, and it's drinking 23 water and so forth. But I'll tell you, all of 24 this, this bill doesn't do anything but 25 protect, in my judgment, the possibility of

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(518) 371-8910 1 drinking water for the City of New York. And 2 it also brings attention to doing something 3 about flood control. 4 It wasn't so long ago that the 5 Schoharie Creek got inundated with a 6 tremendous of amount of water and it took the 7 Thruway bridge out right out and 10 people 8 lost their lives, which was a huge tragedy. 9 Some of the people have never even been found. 10 And you have no idea the destruction that 11 water can do, particularly when it floods. 12 And I think that this is a bill 13 whose time has come and it's very, very 14 important that we address there issue. 15 THE PRESIDENT: Senator Stavisky. 16 SENATOR STAVISKY: Thank you, 17 Madam President. 18 I listened very carefully to 19 Senator Bonacic's explanation, for which I 20 thank him. And I have one question, if he 21 would yield. 22 SENATOR BONACIC: Absolutely. 23 SENATOR STAVISKY: You describe 24 the reservoirs, and I know they've been there 25 for probably 150 years or so. What would

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(518) 371-8910 1 happen if there were no reservoirs? Would 2 there still be a flooding problem from the 3 runoff from the floodplain, the mountains or 4 whatever, would there still be a flooding 5 problem if New York City did not have 6 reservoirs up there? 7 SENATOR BONACIC: I don't think 8 there would be, because the problem is is when 9 you put large volumes of water in a defined, 10 limited body and you unleash it, it comes like 11 a tsunami wave. And that is what causes the 12 devastation. 13 Normally, if there were no 14 reservoirs, whatever the natural terrains are 15 through eight counties would absorb it, I 16 think, and it would be more minimal. But when 17 you collect it and put it in one spot -- and 18 the Pepacton, by the way, is the largest of 19 all New York City reservoir systems. 20 To give you an idea -- and this is 21 not exactly, but just to give you a sense, on 22 the east side of the 13 small reservoirs, it's 23 about 6 billion gallons of water per 24 reservoir; with us, on the other side, 25 72 billion gallons of water per reservoir.

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(518) 371-8910 1 Almost a half trillion gallons of water. 2 And when you put it together and 3 you unleash it, that's where you're creating 4 the catastrophe. 5 SENATOR STAVISKY: My question -- 6 perhaps I didn't phrase. If the Senator would 7 continue to yield. 8 SENATOR BONACIC: I will, yes. 9 SENATOR STAVISKY: I was under 10 the impression that one of the purposes of the 11 creation of dams was for flood control. And 12 you're saying to me that if there were no dams 13 in Delaware County and the surrounding 14 communities that the snowfall and the runoff 15 from the rainwater would then go into the 16 streams, presumably. 17 SENATOR BONACIC: Yes, that's 18 correct. 19 SENATOR STAVISKY: But it seems 20 to me -- please correct me if I'm wrong -- 21 that then the streams would overflow their 22 banks. And the reservoirs are a form of flood 23 control. 24 SENATOR BONACIC: Again, let me 25 try to say it a different way.

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(518) 371-8910 1 If there were no reservoirs -- and 2 keep in mind, it rains 12 months a year. And 3 the purpose of the reservoirs is to collect 4 water and store it where, for the rain that's 5 coming in the spring, summer, and fall, it 6 would naturally be emptying into the streams 7 as -- and would be handled in that manner. 8 But when you collect it in one spot 9 and you unleash it, you're creating a whole 10 different scenario of devastation. 11 SENATOR STAVISKY: Thank you. 12 SENATOR BONACIC: You're welcome. 13 THE PRESIDENT: Senator Liz 14 Krueger. 15 SENATOR LIZ KRUEGER: Thank you. 16 On the bill, Madam President. 17 I listened carefully to Senator 18 Bonacic, and I've been reading up on a number 19 of articles about the history of the agreement 20 of the city and the state. And I don't think 21 this is a city versus state fight. I think 22 this is a question of ensuring that we have an 23 adequate, healthy water supply for everyone in 24 the State of New York. 25 And also, though, the recognition

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(518) 371-8910 1 that some of these plans are fairly old and 2 the world has changed and the environment has 3 changed. And I'd even argue that we've made 4 some mistakes over the years. I think the '97 5 decree didn't go far enough in mandating -- 6 and I will both blame my own city and the 7 state on this, it allowed for overdevelopment 8 of the flood plains. That adds to the 9 problems of flooding. 10 We haven't passed wetlands 11 protection in this Legislature which would 12 assure that we were doing more to protect the 13 existing wetlands from development, ensuring 14 that there were places for the water runoff to 15 go. 16 And of course we all talk about 17 whether or not we've got this global warming 18 problem and what it means when the snows melt 19 too fast or they don't freeze at all. But 20 clearly we've seen a change in our environment 21 and our weather patterns in the last decade. 22 Which we don't know what will happen in the 23 future, but we're seeing it now. 24 And so you've convinced me that we 25 should take this step, Senator. I don't know

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(518) 371-8910 1 whether it will be upheld in relationship to 2 the 1954 consent decree. I think it will 3 cause consternation for my city if this passes 4 in both houses. But I think the argument you 5 are making, that we have to do something, we 6 have to be concerned about the floods in your 7 district and others, we have to ask the 8 question what else can we do, can we pass 9 wetlands protection to decrease a further 10 erosion of the land causing greater flooding 11 in future years, can we better evaluate, in 12 2006 terms, given what's happening in the 13 environment, what we should do to try to 14 decrease development or change even the 15 patterns of uses of dams and reservoirs. 16 So while I know that my city is 17 urging me not to support this bill, I do think 18 that we have some explaining to do ourselves 19 on our failure to meet our mandates. I think 20 we -- we, the State of New York, and we as a 21 Legislature -- have an obligation to look 22 forward, evaluating the agreements we made in 23 the past, perhaps the mistakes we made 24 unintentionally, and the recognition that 25 times have changed and our environmental

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(518) 371-8910 1 patterns are changing, that we have to go 2 forward with a plan -- and this might not be 3 it, by the way -- but we have to go forward 4 with a plan that will protect the integrity of 5 a clean water supply that is adequate for all 6 of the people of New York State. 7 And we have to do it in such a way 8 that you are not facing devastation whenever 9 the water table goes too high or the weather 10 patterns are not as we planned. 11 So I will support the bill. I hope 12 you will work with me to support both 13 expansion of wetlands protection, 14 environmentally sound planning in all of our 15 districts to decrease the risks of future 16 flooding, and a serious evaluation of, in the 17 21st century, what do we do to make sure that 18 we solve the problems of areas being flooded 19 while assuring that we've got a clean water 20 supply that's adequate for a growing 21 population throughout the State of New York. 22 So I will be voting for the bill. 23 Thank you, Madam President. 24 THE PRESIDENT: Senator Seward. 25 SENATOR SEWARD: Thank you, Madam

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(518) 371-8910 1 President. 2 I rise in support of this 3 legislation. I commend the sponsor, Senator 4 Bonacic, for bringing it before us, and I am 5 proud to join with the Senator in sponsoring 6 the bill and supporting it. 7 I do so because I know firsthand as 8 part of my district, as does Senator Bonacic, 9 many of our constituents live in the shadow of 10 these dams. And it has become an annual rite 11 of spring, it seems, of far too often flooding 12 year after year causing a great deal of 13 devastation in property values and even, in 14 some severe cases, loss of life. 15 And there is real fear and anxiety 16 among the people who live downstream from 17 these reservoirs because there has not been 18 any attention paid to flood control as part of 19 the operation of these reservoirs. Very 20 dramatically, we're seeing it because of this 21 Gilboa Dam, which is located in Schoharie 22 County, my district, which has been cited for 23 some problems. And there's going to be some 24 temporary work done on it this spring. And in 25 2008 or 2009, there will be some long-term

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(518) 371-8910 1 repairs to that dam. 2 But in the meantime, there have 3 been meetings in the Schoharie Valley which 4 have attracted literally hundreds of people 5 because they come out and they're fearful, 6 they're afraid to go to bed at night, 7 particularly on a rainy night, wondering 8 whether that dam is going to fail. And we 9 would have a major catastrophe, loss of life 10 and property. 11 That's an extreme case. But on an 12 annual basis we have this threat of flooding. 13 So this legislation, it seems to me, strikes 14 the right balance. It introduces to the 15 equation an element of flood control that we 16 all know we're going to have the spring 17 runoff, and that all we're saying under this 18 legislation, let's have DEC, through the 19 commissioner, promulgate some rules and regs 20 in terms of the operation of these facilities 21 so that the water level can go down and then, 22 because of the spring rains or runoff, the 23 water level will go back up. 24 That's some form of flood control 25 introduced here which I think is very, very

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(518) 371-8910 1 important, as well as balancing the desire and 2 the need, of course, to have enough drinking 3 water for the City of New York and the other 4 uses for this water supply. 5 So I think this legislation strikes 6 the right balance. It gives those who live 7 near these dams some element of confidence 8 that something is being done to alleviate 9 these flooding conditions, as well as making 10 sure that there's an adequate drinking supply 11 for the downstate region. 12 So, Madam President, I'm pleased to 13 support the bill and hope my colleagues will 14 do the same. 15 THE PRESIDENT: Senator 16 Schneiderman. 17 SENATOR SCHNEIDERMAN: Thank you, 18 Madam President. On the bill. 19 I listened, and I don't think 20 anyone could listen to Senator Bonacic's 21 recitation of the problems that his 22 constituents face -- and that have been 23 created, in some cases, by the New York City 24 Department of Environmental Protection -- 25 without being moved.

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(518) 371-8910 1 I do have a concern with this 2 particular piece of legislation. I think the 3 key point really was made by Senator Stavisky. 4 There is no way that the current system of 5 dams is not making things better already in 6 terms of flood reduction. I mean, these are 7 not designed for flood reduction, but the fact 8 of the matter is when you live in an area with 9 a watershed like this, there is flooding. 10 Now, the dams reduce -- to the extent that 11 there's overflow, there would be overflow 12 anyway. 13 I would suggest that the way to 14 resolve this problem is not with the approach 15 taken in this bill. I also am concerned that 16 this is a one-house bill taking a very 17 one-sided approach. I don't think it's going 18 anywhere in the other house. This does 19 require DEP and the people in the watershed to 20 work together, as they have worked together 21 since the 1830s to resolve these problems. 22 The problem, as Senator Stavisky I 23 think pointed out, is that you're going to 24 have flooding anyway. Where you have dams, 25 they can serve to a certain extent to do flood

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(518) 371-8910 1 reduction. The balance of exactly what you do 2 and how you do it is a matter of science that 3 I don't think is accurately reflected in this 4 bill. 5 This bill simply states a mandate 6 that reservoirs shall be lowered -- I'm 7 reading from the bill -- to a level that shall 8 ensure that no significant overflow takes 9 place. 10 There's not a definition, there's 11 not a time frame. These are not designed to 12 be able to be lowered very, very quickly. I 13 think that the DEP has to move forward, as 14 they are moving forward with a program that 15 has been instituted, to be able to respond 16 more quickly, to release water more quickly. 17 I think that they have to work with the 18 community, as they have for a long period of 19 time. 20 But the way for us to be good 21 neighbors here is not to mandate that the 22 state reach in and give -- use the blunt 23 instrument of this sort of order, in my view. 24 This bill, as it is drafted, I 25 don't think would solve the problem. I think

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(518) 371-8910 1 it would create a whole host of other 2 problems. It does appear to be in violation 3 of the Supreme Court consent decree. 4 And furthermore, I just don't think 5 that this is the kind of approach that really 6 moves us along towards a cooperative solution. 7 I understand that one of the major reasons 8 there's flooding is that there's been a lot of 9 development in the floodplain. There's been a 10 lot of development in the wetlands areas that 11 used to absorb this runoff. 12 Maybe a more balanced approach of 13 limiting development, along with having DEP 14 change their policies, is required. That's 15 the kind of thing you get when good neighbors 16 negotiate, as they have negotiated for well 17 over 150 years to try and do this. 18 I believe, and Senator Krueger I 19 think reflected the views of a lot of those of 20 us who benefit from this water supply, that we 21 cannot avoid responsibility for it. You can 22 say it's not the city, but it is a city 23 agency. We can't avoid responsibility for 24 misconduct by this agency. If they're not 25 doing their job, they have to do their job.

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(518) 371-8910 1 If there are things they can do to prevent 2 flooding, they should be doing that. I 3 believe that they are legally required to do 4 that now. 5 I just believe that this is a blunt 6 instrument that directs the lowering of water 7 levels in a way that the dams are not 8 currently set up to handle and that will 9 discourage rather than encourage the sort of 10 negotiation and cooperation that has 11 characterized the watershed agreement -- not 12 always, but for most of its life, to the great 13 benefit of all the citizens of this state. 14 I mean, it is, you know -- it's 15 ironic, I suppose, that you have the greatest 16 metropolis in the world, built because of the 17 watershed, people are buying second homes up 18 in the watershed. Couldn't have built it 19 without the watershed. And now the people 20 from the great metropolis, as Senator Bonacic 21 pointed out, are buying second homes up in the 22 watershed and creating problems. 23 But it's something that is a 24 problem for all of us in the state to work on 25 together. I do hope that we can do it in a

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(518) 371-8910 1 cooperative way. I'm going to vote in 2 opposition to this bill, because I don't 3 believe this reflects either the science or 4 the legal solution to this in accordance with 5 the Supreme Court's consent decree, but with 6 the hope that we can work something out. And 7 with the recognition that those of us from 8 downstate do have a responsibility to our 9 neighbors upstate to try and do something 10 before the session is out. 11 And I hope that this is not the 12 last we're going to see of this, because it 13 would indeed be a problem if we pass a 14 one-house bill and the Assembly passes some 15 other one-house bill and we don't deal with 16 the problem at all. Which, unfortunately, is 17 what tends to occur in situations like this. 18 Thank you, Madam President. 19 THE PRESIDENT: Does any other 20 member wish to be heard? 21 Then Senator Bonacic, to close. 22 SENATOR BONACIC: Just a couple 23 of points. 24 Number one, it is a science. It 25 requires engineering. It requires

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(518) 371-8910 1 sophisticated people that have the expertise 2 to know how to do intelligent flood control 3 without jeopardizing the water consumption of 4 the city's needs. The DEC has those people. 5 Now, the reason -- and the second 6 point I want to make, if this legislation 7 would become law, nothing the DEC can do could 8 preempt the Supreme Court decree of '54. That 9 is in place with the Cannonsville and the 10 Pepacton inventories. That is a different 11 avenue for flood control. It's the other four 12 reservoirs that we want to make sure there's 13 flood control devices. 14 And I will say, in conclusion, I've 15 been with Mr. Miele, the first commissioner 16 when I became a Senator, Chris Ward, and now 17 Emily Lloyd. They don't listen. They are 18 arrogant. They don't care. Now, I know these 19 are harsh words, but I can tell you firsthand 20 it's all rhetoric, no action. 21 The Gilboa, for people who have 22 lived there, people who have done work, the 23 congressmen, McNulty, Gail Shaffer, who are 24 all familiar with the history of the Gilboa 25 malfeasance. That's why they have a

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(518) 371-8910 1 structural problem now. And that water is not 2 coming down naturally. They've created a 3 portal, and they're dumping it in the Esopus 4 below Shandaken and Ulster. Take a look when 5 you take a ride. Go there. The water is 6 raging, and we're not even in April yet. 7 Two instances. The Gilboa Dam, 8 13 feet of silt for a valve that could have 9 released water. Total neglect. Last year the 10 Neversink, two valves clogged, on the drawing 11 board for three years to fix. It's Sheldon 12 Silver's second-home district. They don't do 13 anything. And after the floods of 2005, two 14 months later they fixed those valves. 15 The problem is DEP is focused on 16 New York City and taking -- they don't live 17 here. And they keep saying drinking water, 18 drinking water, that's our mission, not flood 19 control. And I say I agree, the consumption 20 for New York City is important. We have to 21 make sure. But when there's spilling over and 22 your normal level is 80, 82, there's room to 23 release. And they don't do it. And they 24 haven't done it for years and years. 25 Now, I will say, in conclusion, we

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(518) 371-8910 1 have had differences when we talk about 2 hunting, we talk about gun control. We have 3 regional differences for a lot of things. But 4 when it comes to the public health and safety 5 of our residents, we are one state. And I 6 know you care. I know everyone cares. And I 7 tell you that the people below those dams need 8 this legislation, because the DEP just doesn't 9 get it done. 10 Thank you very much. 11 THE PRESIDENT: The debate is 12 closed. 13 The Secretary will ring the bell. 14 Read the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 THE PRESIDENT: Call the roll. 18 (The Secretary called the roll.) 19 THE PRESIDENT: Senator Balboni, 20 to explain your vote. 21 SENATOR BALBONI: Madam 22 President, this is one of these issues that 23 have compelling interests on both sides of the 24 it. 25 On the one hand, the Watershed

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(518) 371-8910 1 Agreement guarantees to New York City the 2 right to have control over their drinking 3 water system. And we all understand the 4 crucial nature of that right. 5 On the other hand, when you hear 6 Senator Bonacic -- who knows probably more 7 about this subject than anybody else in the 8 Legislature -- talk with such passion, and 9 then you visit the Catskills and you see how 10 there really is a danger and abuse -- and 11 frankly, I'm as nervous as anybody in terms of 12 the vulnerability of the watershed. And the 13 allegations that Senator Bonacic has outlined 14 certainly send a clarion call that the city 15 better change the perception and the reality 16 of the security of the watershed. 17 But where do you come down on this? 18 This bill should be seen as the request for 19 more information, the request for a dialogue, 20 not just with Senator Bonacic but with this 21 Legislature, to make sure that we have taken 22 every step -- we being government -- to ensure 23 the security and the utility of this watershed 24 system. 25 So I'm going to vote with Senator

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(518) 371-8910 1 Bonacic on this issue in the hopes that this 2 issue comes back shortly, because this is of 3 great concern to all New Yorkers. Because it 4 may be your drinking water, those of you folks 5 from New York City; it's my constituents that 6 drink it. I vote aye. 7 THE PRESIDENT: You will be 8 recorded as voting in the affirmative, 9 Senator. 10 The Secretary will announce the 11 results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 94 are 14 Senators Connor, Diaz, Golden, Gonzalez, 15 Klein, Maltese, Onorato, Padavan, Paterson, 16 Schneiderman, and Stavisky. Also Senator C. 17 Kruger. 18 Ayes, 45. Nays, 12. 19 THE PRESIDENT: The bill is 20 passed. 21 The Secretary will continue to 22 read. 23 THE SECRETARY: Calendar Number 24 220, by Senator DeFrancisco, Senate Print 55A, 25 an act to amend the Election Law.

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(518) 371-8910 1 SENATOR SCHNEIDERMAN: 2 Explanation. 3 THE PRESIDENT: Senator 4 DeFrancisco, an explanation has been 5 requested. 6 SENATOR DeFRANCISCO: Thank you, 7 Madam President. 8 Back about a couple of years ago, 9 there was a problem down in the Brooklyn area 10 concerning a judge that ended up getting 11 indicted and other charges against other 12 people. And from that point forward, there's 13 been a call for reform of the manner in which 14 judges get selected, Supreme Court judges get 15 selected. 16 And there's been generally a lot of 17 concern about the convention, judicial 18 convention process. And that discussion has 19 been going on for some time. 20 The Assembly came up with a bill 21 last year that basically sought to correct the 22 inequities of the judicial convention process 23 by creating a bureaucracy of various groups 24 throughout the State of New York that will 25 continue to study the qualifications of judges

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(518) 371-8910 1 before the judges ultimately are going to be 2 appointed or nominated for office. 3 My feeling back then was if the 4 difficulty is in the selection process, 5 reviewing the merits of a judge's 6 qualification has little to do with correcting 7 the judicial process, the judicial convention 8 process. 9 So I put a bill in in January of 10 last year that basically says the convention 11 process should be abolished and we should 12 select Supreme Court judges like any other 13 judge that's selected in the State of New York 14 by the elective process. 15 Because County Court, for example, 16 and Family Court judges, the way they get 17 their nominations is they go before the party 18 rank-and-file committee members who pass 19 petitions. And if they get the nomination, 20 they're the designated candidate. But if you 21 don't get the nomination and you want it, you 22 can circulate petitions to get on the ballot 23 for a primary. 24 That's not the case with Supreme 25 Court judges presently, in that the Supreme

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(518) 371-8910 1 Court judges simply go before delegates who 2 are hand-picked by the party leaders. And 3 generally speaking, that's done in September, 4 no time for anyone else to have an opportunity 5 if they're not the anointed one. 6 And so my bill a year ago, January 7 of 2005, called for the abolition of that 8 system and changing the system so it's 9 identical to other judges that get nominations 10 in Family Court and County Court. Which has 11 worked for many, many years and no one has 12 complained about it that I know of. 13 And that's what this bill is, with 14 a small amendment. I amended it this year to 15 reduce the number of signatures that are 16 required on a petition for someone who is 17 going to attempt to get the nomination by a 18 petition process who has not been the party's 19 delegate, the party's nominee through the 20 committee process. 21 And that's what this bill is. And 22 interestingly enough, a few weeks ago a 23 federal judge determined that the system was 24 unconstitutional, the convention system of 25 selecting Supreme Court judges. And as a

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(518) 371-8910 1 temporary measure, the federal district court 2 judge set aside that system and says until the 3 Legislature does something, then we're going 4 to the petition process in much the same 5 fashion that this bill had suggested over a 6 year ago. And that's what this bill is about. 7 Interestingly enough, it's 8 supported by the Brennan Commission. I don't 9 agree with everything they suggest, but 10 they're enlightened from time to time. And on 11 this particular case, they're very 12 enlightened. In fact, they're the ones who 13 brought the lawsuit and -- the lawsuit that 14 ultimately rendered the -- in the decision 15 that just came down stating that the 16 convention system for judges in Supreme Court 17 is unconstitutional. 18 And so that's where the bill is and 19 that's what the bill says, and we would hope 20 that it will be passed today. 21 THE PRESIDENT: Senator Dilan. 22 SENATOR DILAN: On the bill. 23 I rise in opposition to this bill. 24 And as the ranking member on the Election 25 Committee, I urge my colleagues to vote no on

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(518) 371-8910 1 this issue. 2 I also would like to commend the 3 two chairmen, the chairman of the Election 4 Committee and the chairman of the Judiciary 5 Committee, because last year they did hold a 6 public hearing of this particular bill where 7 the district attorney of Brooklyn testified, 8 the chairman of the Feerick Commission 9 testified, and various professors from law 10 universities in the state of New York. 11 However, at no point did anyone 12 support this particular bill. So I have a 13 problem with us being reactionary when it 14 comes to presenting this bill. 15 And as to Judge Gleeson's recent 16 decision, I think Judge Gleeson made that 17 decision because the current system is 18 unconstitutional because it is mandated by the 19 state. The decision does not apply to 20 political parties directly. 21 For example, if the law allowed the 22 parties to decide the matter in which the 23 candidates for justice of Supreme Court are 24 chosen, the reasoning of the judge then would 25 be moot.

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(518) 371-8910 1 I believe that this bill also hurts 2 minority candidates for a position, it hurts 3 the diversity of the bench, and I think that 4 we should be looking for a more permanent fix 5 to this situation. 6 For many years we have done the 7 judicial conventions, and I believe that there 8 was also the Feerick Commission which recently 9 reported to the chief judge, and it came up 10 with various recommendations. One of them is 11 selecting judicial delegates for a period of 12 three years where all candidates would have 13 the ability to lobby these individuals. I 14 still question that particular form, but I 15 think that we need to study this more so we 16 can come up with a fair way. 17 In regard to merit selection, I 18 think it creates other problems. However, I 19 just feel that this bill will only benefit -- 20 THE PRESIDENT: Excuse me, 21 Senator. 22 Senator DeFrancisco, why do you 23 rise? 24 SENATOR DeFRANCISCO: Will 25 Senator Dilan yield to a question, please?

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(518) 371-8910 1 SENATOR DILAN: After I finish, I 2 will do that. Okay? 3 I believe that this will allow for 4 wealthy individuals to run. For example, this 5 year you will have incumbent judges who will 6 be running for reelection. How much time will 7 they have to raise money to run their 8 campaigns? Not much. So individuals who can 9 finance their own campaign will be able to do 10 it immediately. 11 And we need to really question that 12 diversity of the bench and where this will 13 take New York State. 14 THE PRESIDENT: Senator 15 DeFrancisco. 16 SENATOR DeFRANCISCO: Yes. One 17 of the proposals, and I think Judge Kaye is in 18 favor of it, is to have the judicial delegates 19 appointed for three years. Can you tell me 20 how that changed the system if the same people 21 are appointing those delegates? 22 SENATOR DILAN: Well, I didn't 23 say that I support that system, I said that 24 that's one of the recommendations that are 25 being made.

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(518) 371-8910 1 However, I question that myself. 2 Because now you have these individuals that 3 will hold a term of three years, and everyone 4 will be lobbying these individuals. Which 5 dinner, you know, will these individuals be 6 taken to? 7 I just believe that we should study 8 this bill further, we should study the entire 9 situation where we can come up with a fair 10 system that everyone will have a chance to 11 serve as Supreme Court judge. 12 SENATOR DeFRANCISCO: Thank you. 13 The only point I'd like to raise 14 with respect to that is now the system is 15 primaries, and the system is in place by the 16 federal district court judge. So if we -- and 17 my only point simply is that we can study it a 18 long time, but as a practical matter that 19 system is now in place. 20 SENATOR DILAN: Yeah, but -- 21 Madam President, may I? 22 THE PRESIDENT: Senator Dilan. 23 SENATOR DILAN: In regard to that 24 point, first of all, judicial delegates are 25 elected by the people at primaries. So the

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(518) 371-8910 1 people do have a role, because they elect 2 currently the delegates to these conventions. 3 And I believe that we should just 4 find a real solution to this, because 5 primaries, what you will be doing is really 6 politicizing this process even further. Why 7 will you be doing that? Because you're going 8 to be empowering consultants. These 9 consultants will be making hundreds of 10 thousands of dollars on campaigns. 11 These judges would be subject to 12 petition challenges in court, where -- and for 13 example, this bill, in the 11th District, 14 raises the number of signatures to 7,500. In 15 most cases, you will get three times the 16 number of signatures so you can stay on the 17 ballot. You would have to pay an attorney a 18 lot of money to stay on the ballot if you're 19 challenged. 20 And who would you go to to collect 21 these signatures? You would go to the 22 political clubs within that judicial district 23 to get you those signatures. 24 So I believe that this bill would 25 politicize the process even further.

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(518) 371-8910 1 THE PRESIDENT: Senator Diaz. 2 SENATOR DIAZ: Thank you, Madam 3 President. I rise to speak on the bill. 4 Since I became an elected official, 5 first as a New York City Council member and 6 now as a member of this great, great body, I 7 have learned that when the President, the 8 Governor, the Mayor, or the Legislature uses 9 the terms "reform," "redistribution" or 10 "reallocation," it is time for us in the 11 minority community to open our senses and look 12 out. Because what they're trying to do, they 13 are going to kill us. Every time that they 14 use those three words -- "reform," 15 "redistribution," "reallocation" -- they kill 16 us. 17 For many years, when the black and 18 Hispanic community did not know how to vote or 19 how to be part of the system, during those 20 times the system was perfect and had no 21 faults. It gave the power to others to 22 select, to appoint, or to nominate whoever 23 they want for whatever position they want, 24 qualified or not. We didn't have the power. 25 Tammany Hall has always been there.

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(518) 371-8910 1 It is the same system that was used by others 2 to nominate and elect others to different 3 positions. There was no time for blacks or 4 Hispanics. The system was perfect then. 5 Now, nobody questioned the system, 6 nobody ever questioned the system during this 7 time. Mayors, governors, judges, political 8 appointees, everything was okay, nice and 9 dandy. What was the difference, then? There 10 was no difference. The system is the same, 11 except that now blacks and Hispanics are 12 starting to get into the system and are 13 starting to control the system. 14 Ladies and gentlemen, when a black 15 or Hispanic learns the way to the Board of 16 Elections, when we learned the way to the 17 Board of Elections and we started to get 18 control of the system and we started to 19 dictate who's going to be the mayor, the 20 judge, or the political appointees, and when 21 they saw that their power to control the 22 system was being taken away by the minorities, 23 guess what? They started to find fault with 24 the same system and the same methods that they 25 had been using ever since.

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(518) 371-8910 1 First case. In the City of 2 New York there was something called the Board 3 of Estimates. The Board of Estimates was 4 composed of the five borough presidents, the 5 mayor, and the comptroller. The five borough 6 presidents, under the system of the Board of 7 Estimates, used to control the budget of the 8 City of New York. 9 But, ladies and gentlemen, when 10 blacks and Hispanics started to get elected as 11 the borough presidents and to have the power 12 to control the city budget, guess what? They 13 decided that the Board of Estimates was 14 unconstitutional. But it was constitutional 15 all the time before. Just when we got into 16 power, oh, hold it, wait, something is wrong. 17 The system is unconstitutional. 18 So therefore they used the word 19 "reform." But before black and Hispanics 20 became borough presidents, the Board of 21 Estimates was perfect. 22 Second case was the way in which 23 the Board of Education and the local boards 24 used to choose the chancellor, the 25 superintendents, the principals and all

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(518) 371-8910 1 patronage jobs in the New York City school 2 system. For years, when blacks and Hispanics 3 were not part of it, the system was perfect. 4 The system that works for others to appoint 5 and to nominate and to dispensate [sic] 6 patronage jobs was okay. 7 But when blacks and Hispanics 8 started to get control of the central and 9 local boards of education and its patronage 10 jobs, guess what? They used the words 11 "reform," "redistribution" and "reallocation," 12 and in that way what was good for others 13 became no good for us. 14 Term limits. Thank you, my 15 sweetheart. Term limits. They were perfect 16 all the time before I was born. People was 17 there forever. But when we got into power, 18 then they decided that term limits was -- what 19 is it -- unconstitutional, and they abolished 20 term limits. 21 And now, ladies and gentlemen, for 22 many years political clubhouses -- the 23 machines, as they are called -- they have been 24 the ones in charge of selecting judges in 25 New York City. There is no difference in the

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(518) 371-8910 1 way judges were selected before and the way 2 judges are selected now. Same thing. Fifty, 3 40 years, 30 years ago, the system was the 4 same. 5 So what is the big problem? The 6 big problem, ladies and gentlemen, is that the 7 party bosses, the political clubhouses and the 8 system is now becoming to be run by blacks and 9 Hispanics. 10 So guess what? That system that 11 worked for others as long as blacks and 12 Hispanics and other minorities were not in 13 charge was a good system. Now the system is 14 rotten, it stinks. But now that the 15 minorities have the power to nominate and 16 elect judges, they are saying that the system 17 is unconstitutional now and has to be reformed 18 because it violates the First and the 19 Fourteenth Amendments to the United States 20 Constitution. It never violated that before. 21 Now, when we got into power, now we start 22 violating the Constitution. 23 I am a Democrat, elected to this 24 office with the support of the Bronx 25 Democratic county organization. I am proud to

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(518) 371-8910 1 stand here today and tell you that in the 2 Bronx County, an emphasis has been put on 3 equality when nominating judges. Every time 4 there have been three openings or three 5 vacancies in the Bronx County, the Bronx 6 County Committee has always nominated a black, 7 a Hispanic and a white. And women. 8 But, ladies and gentlemen, as they 9 say, be careful what you wish for -- you might 10 get it. In Bronx County, the electoral power, 11 the majority of voters are blacks and 12 Hispanics. It has been proven time after time 13 that a white judge, a white person in Bronx 14 County will never get elected if you take that 15 route. 16 The only way to have this -- 17 THE PRESIDENT: Excuse me, 18 Senator. 19 Senator DeFrancisco. 20 SENATOR DIAZ: When I finish. 21 The only way to have this done is 22 with the present system that allows the 23 chairmen of the Bronx County Committee to 24 nominate judges other than black and Hispanic. 25 So, ladies and gentlemen, as a

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(518) 371-8910 1 lonely voice in the desert, overlooking the 2 future, I am telling you that by reforming the 3 system to appoint judges by popular vote, you 4 are doing a great damage to those 5 well-qualified and well-prepared members of 6 the small Bronx white community. Ladies and 7 gentlemen, I am afraid that there will never, 8 ever be a white judge elected in the Bronx 9 County judicial system if the present system 10 is reformed. 11 But as I said before, I am just a 12 lonely voice in the desert telling you to be 13 careful what you wish for, you might get it. 14 Madam President, thank you very 15 much. And please be sure that my vote is put 16 on the "no" column. 17 THE PRESIDENT: Senator 18 DeFrancisco. 19 SENATOR DIAZ: I'm not taking any 20 questions. 21 SENATOR DeFRANCISCO: Oh, you're 22 not? 23 SENATOR DIAZ: No, I'm not, I'm 24 sorry. 25 THE PRESIDENT: Senator Connor.

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(518) 371-8910 1 SENATOR CONNOR: Thank you, Madam 2 President. 3 First let me make some full 4 disclosure here, because it can get a little 5 confusing. In late 2004, I testified in the 6 case of Margarita Lopez Torres against the 7 State Board of Elections. I testified for the 8 defendants. I spent a day in depositions and 9 the better part of two days on the stand 10 before Judge Gleeson. I was testifying 11 against the position being advanced by 12 Margarita Lopez Torres, who was then a civil 13 court judge. 14 Why I clarify that is because last 15 fall I was retained by Margarita Lopez Torres 16 as her attorney in the recount and postprimary 17 challenges. I won that case, and she is now 18 one of the surrogates of Kings County. So it 19 can get a little confusing whose side I'm on, 20 but I know Senator DeFrancisco, being a 21 lawyer, understands perfectly why there's no 22 conflict here and why I call them the way I 23 see them. 24 In the course of testifying for the 25 defendants in my deposition, Fred Schwartz,

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(518) 371-8910 1 who was one of the lawyers for the Brennan 2 Center, said to me: "So, Senator, you support 3 the present system of conventions?" And I 4 said "No." He said: "But you think it's a 5 great way to pick judges?" And I said, "No, I 6 don't think it's a great way to pick judges, I 7 just think it's far better than what you're 8 proposing to do." 9 Because the fact is -- and 10 actually, today I am completing my 28th year 11 here as a State Senator -- from the day I was 12 elected, I signed on with the Committee for 13 Modern Courts for the merit selection of 14 judges. 15 A little history, maybe. You know, 16 the idea of electing judges goes back to the 17 revolution. And in some states, the 18 revolutionary -- some of the more radical 19 states from a revolutionary standpoint were 20 much in favor of electing judges. Why? Well, 21 if you read the Declaration of Independence 22 where Jefferson sets forth the reasons for 23 declaring independence, one of the things he 24 mentions there is that the king, His Majesty 25 the King of Great Britain had set up among us

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(518) 371-8910 1 strangers as our judges. The king was 2 appointing strangers from England to come here 3 and make a good living being our judges. 4 So after the successful revolution, 5 many of the early founders of the state 6 government said: Let's elect the judges. We 7 don't want any more of these elite strangers, 8 Lord this and Lord that, as our judges, with 9 the wigs and the whole thing. 10 Interestingly enough, New York, if 11 you look at the early period of this country, 12 New York tended to be more conservative than 13 Rhode Island, which was real radical, and many 14 other places. 15 New York was a mercantile state. 16 It was federalist, hamiltonian influence. It 17 was much more moderate and conservative. And 18 we had appointed judges. Now, granted, we had 19 not yet separated equity from law, so we had a 20 chancellor as well as the law courts. 21 In 1847, New York went to an 22 elected system. And as that progressed and 23 the party system -- because remember, the 24 party system didn't really appear in law in 25 New York State until the Election Law of 1897,

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(518) 371-8910 1 1898, 1899, when they started having 2 primaries, which -- mandating primaries, which 3 were nothing more than caucuses. The Election 4 Law of 1909 then gave us our first primary as 5 we know it, the rank and file gets to vote. 6 So up until 1909, either a party 7 caucus or, prior to the mandate of the primary 8 being a party caucus, prior to that, in the 9 1850s, '60s, '70s, the party bosses got 10 together and nominated the candidates and the 11 voters picked in the general election. So 12 they controlled who the judges were. 13 When you get to 1909 and the 14 statute of the Election Law of 1909 mandating 15 a primary -- the state's going to print the 16 ballot, the Australian ballot, therefore the 17 party has to nominate you to get -- you're 18 guaranteed a place on the ballot, so the party 19 must do, notwithstanding the First Amendment, 20 what the state mandates in order to have 21 ballot access -- we had primaries. 22 So they had open primaries for 23 Supreme Court justices from 1909 to 1924, '25, 24 when they adopted the convention system. Why 25 did they adopt the convention system? Bar

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(518) 371-8910 1 associations, a citizens' union of good 2 government groups screamed for a convention 3 system because the open primary elections had 4 been so unseemly. And money dominated, big 5 bucks. 6 Now, when they talked about big 7 money in a primary then, they probably meant 8 somebody spent $4,000 or $5,000. But it was 9 big money then. Because remember, Woodrow 10 Wilson spent, I think, $12,000 running 11 successfully for president in 1912. So the 12 fact is that this was a reform, to have 13 conventions. 14 Now, how did we get to that? In 15 theory, in the early 19th century and even in 16 those states that adopted it in the late 18th 17 century, the idea of elected judges sounded 18 good. They weren't strangers among us. 19 Everybody in a community, everybody in Albany, 20 everybody in New York City -- New York City 21 was a town then. I mean, it was a city, but 22 relatively speaking, it was small stuff -- 23 they knew the lawyers. There weren't that 24 many lawyers. Certainly not what we have now. 25 And everybody knew who the

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(518) 371-8910 1 reputable lawyers were, the ones that didn't 2 cheat their clients, the ones that had a 3 reputation for probity, judgment, good 4 temperament. And so the citizens were in a 5 position to cast a knowing vote for who they 6 wanted to be judge. 7 Life got more complicated in the 8 20th century, and people didn't know. And so 9 people tended to vote for the party label. 10 And the reality of judicial 11 elections today, in most parts of the state -- 12 and I'm not talking about a village justice or 13 a town justice. It probably works pretty good 14 there. People know who they're electing, they 15 know them. In many cases, they're not even 16 lawyers that they elect; they don't have to 17 be. But they know who they are. They elect 18 somebody they trust. They elect somebody that 19 they're willing to have judge them. 20 But when you get to the higher 21 courts, the fact is that most people don't 22 know who they're voting for unless they happen 23 to have been someone who was once their 24 lawyer. Which would be a small percentage of 25 the electorate.

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(518) 371-8910 1 So this idea of the party labels 2 means something in an election took hold. How 3 else to judge? 4 Well, there's another way to judge. 5 Wisely, voters, from what I've seen, have been 6 voting for the women candidates in the last 7 couple of decades. It's probably a wise thing 8 to do. But voters are looking for a tag line. 9 What's the problem with an open 10 primary? Well, number one, people say, Well, 11 that's how you elect civil court judges in 12 New York City, you elect them countywide, the 13 whole borough of Brooklyn, the whole borough 14 of Manhattan. You have an open primary. 15 Well, Madam President, we had a 16 problem in the '70s that we actually addressed 17 in legislation. And Speaker Silver was then a 18 young Assembly member, I remember him 19 discussing it with me, and a bill -- we put 20 forth a bill that passed. 21 There were two vacancies, there 22 were two vacancies in a civil court district 23 in Manhattan. There was only one incumbent. 24 The other incumbent had aged out and retired. 25 So what did you have in that judicial

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(518) 371-8910 1 district? You had an incumbent, a very, very 2 fine incumbent that everyone respected, and 3 you had an open seat. 4 So everybody who wanted to run in 5 that district said, Well, I'm not running 6 against Judge -- I think it was Judge Sachs -- 7 I'm not running against him, everybody likes 8 him, he's a good judge. And there were two 9 candidates who said, No, we're not running 10 against him, we're running against each other 11 for the open seat. And they campaigned hard 12 and they spent money and they did mailings and 13 they campaigned hard against each other for 14 the one open seat. 15 Except that was the law? Two 16 vacancies, three candidates. Guess what? The 17 two people running against each other came in 18 first and second, and the incumbent judge 19 lost. The one no one wanted to see lose, 20 lost. 21 It makes sense. We know politics; 22 we know elections. There's one incumbent busy 23 being a judge. Everybody says he's great, he 24 should be continued, nobody has an unkind word 25 about him, and there are two people out there

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(518) 371-8910 1 yelling "Vote for me, vote for me." 2 How do we address that in the civil 3 court? We have an assigned vacancy law. Look 4 it up. In New York City civil court, each 5 judge, when they file their petition, has to 6 put on their petition what assigned vacancy 7 they're running for. It afforded the 8 contestants for the open seats the ability to 9 file against each other and let the incumbent 10 go free for another ten-year term. 11 Now, why do we do this? Why do we 12 protect incumbents? Well, Judge Gleeson 13 actually, in his decision, has a couple of 14 pages on this. He says, Well, if you're just 15 protecting incumbents, that's bad. 16 But he understands the rational 17 state purpose with respect to the judiciary of 18 protecting incumbents, because the overriding 19 principle -- and I think we all agree on it -- 20 is to protect the independence of the 21 judiciary. And respect the fact that a judge 22 who's doing his or her job has been out of 23 politics for 10 or 14 years if they're on the 24 Supreme Court, has not been going to club 25 dinners, has not been buying gold pages in

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(518) 371-8910 1 ads, has not been doing politics like we all 2 do with our two-year terms, like we all do day 3 in and day out. 4 So it's not fair, then, to say nah, 5 ha, ha, suddenly, as the ethics rules say, for 6 one year we're suspending this halo over you, 7 Judge, and you have to jump into the political 8 maelstrom, go see if anybody's left in the 9 clubhouse that you knew when you got elected 10 14 years ago or 28 years ago and try and get 11 yourself reelected. 12 So Senator DeFrancisco's bill does 13 not include an assigned vacancy provision, so 14 therefore -- which was very common in the 15 judicial districts, I think, throughout the 16 state, where you get five seats are up this 17 year but three are held by incumbents, two are 18 open. 19 Well, in an open primary situation, 20 if more than two people compete for the two 21 open seats, then all -- then the three 22 incumbents go into the pool in a six-way race 23 and the people who come in one through five 24 win. And guess what? One of the incumbents 25 is most likely to lose. Guaranteed. So

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(518) 371-8910 1 that's a problem with the bill. 2 Another problem is the need for 3 money. Under the canons of judicial ethics as 4 rigorously applied by the Stern Commission, or 5 the Commission on Judicial Conduct, a 6 candidate for judicial office who's a sitting 7 judge, either in a lower court -- often the 8 case; civil court, county court, whatever -- 9 or who's running for Supreme Court cannot -- 10 and we say cannot raise money except for a 11 year before the election. 12 Under the canons of judicial 13 ethics, they can't raise money at all, as we 14 understand it. They can't say "Come to my 15 fundraiser." They can't say "Donate money to 16 my campaign." They're not allowed to solicit 17 any campaign contributions. 18 They're not -- this is brilliant -- 19 they're not allowed to know who contributed to 20 their campaign. It is a violation of the 21 canons of judicial ethics. Forget the fact 22 that it's a public record on the website of 23 the Board of Elections and everybody else in 24 the state knows who contributed to their 25 campaign. They're not allowed to know.

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(518) 371-8910 1 And you know what? Now the chief 2 judge puts a rule down, Madam President. The 3 chief judge says no lawyer can appear before 4 this judge who has contributed to her 5 campaign. Except she's not allowed to know 6 who contributed to her campaign. The rest of 7 the world knows, but she doesn't know. 8 Now, guess whose name will be in 9 the paper a day or two after a lawyer appears 10 before this judge who contributed to her 11 campaign? Not the -- well, the lawyer may get 12 a mention. It will be the judge. The 13 headline will be about the judge. The judge 14 let somebody appear in front of her who gave 15 to her campaign. Forget that if she is 16 ethical and followed the rules, she doesn't 17 know that he contributed to her campaign. 18 This is what we have started to do 19 as we have the intersection of ethical rules 20 and legal changes and federal court judges. 21 I'm reminded of this decision that threw out a 22 whole statewide scheme based, frankly, on 23 evidence that dealt with kings in New York 24 County, for the most part, with vague mentions 25 of other judicial districts. You know, as

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(518) 371-8910 1 someone said to me, well, it shows the 2 difference between a federal judge and God. 3 God doesn't think he's a federal judge. 4 (Laughter.) 5 SENATOR CONNOR: But the fact is, 6 Madam President, the fact is that there's got 7 to be a better way to pick judges. And there 8 is a better way to select judges. I'm not 9 going to tell you I've quite figured it out. 10 But I think some system of merit selection of 11 judges is far better, far better than an open 12 primary, the need for money. 13 Now, we've heard colleagues say 14 what about the diversity on the bench, in the 15 direct primary? Now, I know some parts of 16 this state, and I -- look, I know this state 17 pretty well, and I've talked to candidates all 18 over this state. And in large parts of this 19 state there is not really much of what we 20 would call or political consultants would call 21 an ethnic vote. 22 But in urban areas of the state, 23 and in New York City, that's still how people 24 tend to vote. Particularly when they don't 25 know the individuals. And when you're dealing

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(518) 371-8910 1 with judicial elections, they don't know the 2 individuals, by and large. But they will vote 3 for some identity tag. 4 Now, we've heard Senator Diaz say: 5 Well, it will be very hard or impossible for a 6 white to be elected to the Supreme Court in 7 the Bronx. But, you know, diversity, 8 diversity embraces also some of the -- what 9 I'd call smaller minorities in terms of their 10 size in the electorate. 11 For example, in New York City we 12 have a number of Asian-American judges. It 13 would be very, very difficult under this 14 system for an Asian-American candidate to get 15 elected to the Supreme Court. Very difficult. 16 There is an incumbent judge in 17 Manhattan, a very good judge, her last name is 18 Abdus-Salaam. Can you imagine a judicial 19 race, people don't know you, and the current 20 temper of things post-9/11, that judge running 21 for reelection? It'd be very, very difficult 22 to get elected. 23 The convention system allowed the 24 party leaders in both parties to build a 25 ticket, to build a ticket for that party that

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(518) 371-8910 1 reflected the diversity of the constituency in 2 their district. And I know you don't find a 3 lot of diversity in a few parts of this state, 4 but there are other parts where you do. 5 And the one thing the parties did 6 well, leaving aside the issue of unfairness 7 that's implied by the charge of bossism -- 8 which, you know, sometimes is in the eye of 9 the beholder, and sometimes it's real and it's 10 not right. But the party did have an ability 11 to represent constituency groups so that the 12 ticket as a whole had broad appeal throughout 13 the district. That's called democracy. 14 That's what a political party exists to do. 15 And that's what won't happen with 16 this open primary. Because another flaw in 17 this bill, Madam President, the Wilson-Pakula 18 law does not apply to judicial offices. You 19 don't need to be a Democrat to run in the 20 democratic primary for a judgeship, and you 21 don't need to be a Republican to run in the 22 Republican primary for a judgeship. 23 What you really are going to need, 24 Madam President, if this bill became law, or 25 if Judge Gleeson's order goes into effect for

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(518) 371-8910 1 this year, is you're not going to need party 2 enrollment, you're just going to need green. 3 And I don't mean the Green Party. You're 4 going to need money. 5 Money will talk. Wealthy lawyers 6 will see an opportunity, and they will take 7 it. That's what they're trained to do. 8 And you're going to find, and it's 9 really -- fundamentally, under the First 10 Amendment, Madam President, it is not fair to 11 a political party to think that they then 12 become saddled with someone who could be 13 totally antithetical to their political 14 philosophy. 15 It really -- you know, it reminds 16 me of a primary in Louisiana years ago when 17 somebody won the Republican primary and the 18 Republican Party -- it was David Duke -- 19 denounced him. He was antithetical to their 20 principles. And it was right that they did 21 what they did with respect to that candidate. 22 But it was wrong to have him inflicted on the 23 Republican Party. 24 And I say it could be wrong to have 25 someone of a totally foreign political

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(518) 371-8910 1 philosophy and affiliation inflicted on a 2 political party as their Supreme Court 3 candidate. 4 And by the way, if you look at 5 ballot placements, Supreme Court, that's way 6 up there. That's above anywhere we run on the 7 ballot. For the upstaters, it's way over 8 there before anything where we get listed. 9 So I don't want to be on a ticket 10 that's headed up by someone who bought a 11 nomination and who has nothing to do with my 12 political party. And when I say "nothing to 13 do," I don't mean in an organizational sense, 14 I just mean in a philosophical sense. 15 So this is a very, very bad way to 16 pick a judge. Certainly without a 17 Wilson-Pakula law in place covering it, 18 certainly without an assigned vacancy rule in 19 place to cover it. 20 And as to the Brennan Center -- you 21 know, they brought this lawsuit, brought this 22 down on it -- it's watch what you wish for, as 23 Senator Diaz said. They got it, and now 24 they're saying: And we think it's great, as 25 long as we have public financing -- and what

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(518) 371-8910 1 else did they want? Something else. 2 It's politically problematic. Not 3 that I wouldn't support it, but I've been 4 around here long enough to know that public 5 financing is, in this house, politically 6 problematic. And that translates into, let's 7 face it, the Majority's not going to do it, 8 Madam President. And so that's the excuse. 9 This would be a great, great thing if you do 10 all those other things. 11 I think we have to put our heads 12 together and we have to come up with a better 13 way to select judges in New York State. We 14 have to try and figure out a way to back away 15 from a political culture in this state that 16 politicizes the selection of judges. And I 17 don't just mean in the way that Senator 18 DeFrancisco's bill would do it, and I don't 19 mean in the way that the convention system has 20 done it, and I don't mean in the way that 21 we've had an appointive system. Because, 22 let's face it, in a political culture -- none 23 of us are political neophytes here -- politics 24 counts. That is our system. 25 But I think we need to go back, we

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(518) 371-8910 1 need to look at the kind of work that the 2 Committee for Modern Courts has done over 3 these years and take a look at some system of 4 merit selection. You'll never take all the 5 politics out, but you can ensure merit, you 6 can minimize partisanship. An alert public 7 can do that by holding accountable the 8 appointing authority. 9 And is it any different than what 10 we did with the Court of Appeals? You know, 11 people say, Oh, but that would take a long 12 time. You have to amend the constitution. 13 Yeah, it would take a couple of years. We did 14 it for the Court of Appeals. I'm old enough 15 to remember when Court of Appeals candidates 16 battled it out on the airwaves and slammed 17 jail doors and did all sorts of other things 18 to get elected to the Court of Appeals. So -- 19 with some irony. 20 But the fact is that we figured it 21 out for the Court of Appeals. I think we can 22 figure it out for the State Supreme Court. 23 And I think we ought to do that. And I don't 24 think we should jump in here. 25 And I do think that we ought to

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(518) 371-8910 1 give due regard, Madam President. I don't 2 think Senator DeFrancisco suggested it, but 3 it's sort of implied that it's a fait accompli 4 because Judge Gleeson made his ruling. But 5 federal judges, whatever they think about the 6 deity, are subject to review by the Court of 7 Appeals. There is an appeal filed, there are 8 motions for stay filed. So it's not a done 9 deal yet. 10 I think what we ought to be doing 11 is very quickly putting our heads together and 12 coming up with a better way to pick Supreme 13 Court justices. I think if we came up with a 14 true merit appointment system that had wide 15 bipartisan support here, I think that Judge 16 Gleeson could be persuaded perhaps to even 17 stay his own order pending adoption of that 18 over the next two-year cycle as a 19 constitutional amendment. 20 But there are better ways to do 21 this. This bill is not the answer. As 22 hallowed as it is in the memories of the 23 founders of this country, the electoral system 24 has outgrown its usefulness on this level of 25 the Supreme Court.

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(518) 371-8910 1 Thank you, Madam President. 2 THE PRESIDENT: Senator 3 DeFrancisco, to close. 4 Senator Schneiderman first. 5 SENATOR SCHNEIDERMAN: I don't 6 want to interrupt that closing rhythm. On the 7 bill very, very briefly, Madam President. 8 I also have serious problems with 9 the legislation as proposed. And I want to 10 just add one or two things to what my 11 colleagues have said before, before me. 12 First of all, the situation we're 13 in now is that pending further action by the 14 court, the federal judge has ordered primaries 15 until the Legislature takes action. So we 16 should be -- as Senator Connor says, we should 17 be working on the right way to solve this 18 problem, not simply doing a quick fix. 19 I know Senator DeFrancisco is 20 sincere about this and that he's had this bill 21 for a while. 22 This is not the best way to solve 23 the problem. This is not something that we 24 have given due consideration to. And I don't 25 think you have to look any further than the

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(518) 371-8910 1 numerous bar association reports, good 2 government sources -- in particular, the 3 report of the Feerick Commission, which 4 explicitly addressed this, and which Chief 5 Judge Kaye referred to her in "State of the 6 Judiciary" address. 7 The Feerick Commission stated, very 8 clearly: "Given the likelihood that the 9 introduction of judicial primary races would 10 draw major financial contributions into the 11 judicial elections, the commission recommends 12 retaining judicial district nominating 13 conventions subject to significant reforms, at 14 least until New York State adopts public 15 campaign financing and other reforms." 16 So here's the Feerick Commission, 17 the greatest collection of good government 18 lawyer activists that you can find, saying we 19 should just go slow on this. There are too 20 many unintended consequences of an open 21 primary system. 22 And I respectfully suggest that the 23 bill before us today -- look, I was a partner 24 in a big law firm in Manhattan. There's never 25 been a piece of legislation that would confer

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(518) 371-8910 1 greater benefits on partners of big law firms 2 in Manhattan than the bill before us today. 3 You want to know who's going to be 4 able to run for office in other counties? 5 Because there is no requirement that you live 6 in the district. You know who's going to be 7 able to afford to buy consultants and the 8 lawyers who work and, you know, are making not 9 insignificant amounts of money? It's partners 10 in big law firms in Manhattan. 11 So this is in fact -- I must say, 12 in this case, I agree that the effect would be 13 precisely what Senator Diaz has predicted. 14 This is a bill that will reduce diversity, 15 will promote the election of, you know -- and 16 I don't know that my former partners are 17 looking to run for judicial office, but this 18 would make it easier for people to run for 19 office. 20 It does not require you live in the 21 district, it does not require you belong to 22 the party in whose primary you run. And it 23 really would be open season for those with 24 money to take over our judiciary. There's no 25 doubt in my mind this would reduce diversity.

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(518) 371-8910 1 And I respectfully suggest that 2 under the circumstances where the judge has 3 issued an order throwing this back to the 4 Legislature and having -- mandating primaries 5 until we take action, where there's now an 6 application for a state pending appeal 7 underway, let's slow this down, let's try and 8 come up with the right way to solve this 9 problem and not simply respond with something 10 that may appeal to one or two reform groups 11 who probably don't want to see the gain that 12 they perceive they made in this decision lost. 13 Let's slow it down. Let's try and 14 do something that will actually provide the 15 kind of judiciary we need in this state. 16 Which is a judiciary -- and in the Feerick 17 Commission report they state, in their 18 introduction, a judiciary that has public 19 confidence. 20 Without public confidence, the 21 judicial branch could not function. And if 22 the judiciary in New York is going to become a 23 judiciary dominated by wealthy white men, 24 because that's what we're talking about, it 25 will not be able to function because it will

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(518) 371-8910 1 lose public confidence. 2 Let us not throw out the baby with 3 the bathwater. Let's do this the right way. 4 We're under no compulsion to pass this 5 one-house bill right now. So I would urge my 6 colleagues to vote no on this bill, and then 7 let's get to work on something that could 8 actually improve the system. 9 Thank you, Madam President. 10 THE PRESIDENT: Senator 11 DeFrancisco, to close. 12 SENATOR DeFRANCISCO: I was 13 thinking of rereading the bill, because I'm 14 not sure where all of these dire consequences 15 come from from this bill. It basically puts 16 into place what is in place for County Court, 17 Family Court, and other judges. 18 Now, for the life of me I haven't 19 seen all these problems of wealthy white 20 Manhattan males from coming up to Syracuse to 21 take over a county court judgeship and take a 22 $500,000 cut in pay. So I'm not quite sure 23 how we make these leaps, quite frankly. 24 The fact of the matter is is that 25 this system puts in place something that's

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(518) 371-8910 1 been in place in all of these other 2 judgeships, and all these other dire 3 consequences have not occurred. And there are 4 some who have seen the committee process, the 5 convention process work with hand-picked 6 delegates and members of these committees 7 backing off and not voting against somebody 8 who is a very bad candidate because there's no 9 qualifications because they're worried about a 10 Senate candidate that might be someone that 11 they want to get to nomination for another, 12 totally different office. 13 It's a closed shop, a convention 14 system. It's a closed shop. It's as simple 15 as that. And all this court decision is doing 16 is saying open it up. 17 And, you know, I really take 18 offense at Senator Diaz's comments, the claims 19 that this is a racist bill. Especially when 20 his ultimate conclusion is if we have this 21 bill, you may get what you wish for. And that 22 is all judges will be black in that county, 23 because that's what the electorate is. 24 Now, how is that possible? Am I 25 missing something again? If this bill passes,

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(518) 371-8910 1 then the majority of people or the vast 2 majority of people will have just about the 3 vast majority of judgeships? That's what 4 democracy is about, I think. I think that's 5 what democracy's about. 6 You know, there's a real cheap, a 7 simple system called a dictatorship. You just 8 select people for different positions, you 9 don't have to pay anything. 10 Everybody here raises money to run 11 for office. Does that mean we're all white 12 males here, the only ones that could possibly 13 raise the money in order to run a race? 14 That's all we're talking about, that if you're 15 not one of the anointed few by the powers that 16 be, you have another option to get on the 17 ballot. 18 And it's interesting, the most 19 interesting part of this is there are very, 20 very few races that I know of in County Court 21 and Family Court where someone who is not the 22 anointed one actually does a primary in 23 judicial races. It's very rare. All these 24 dire consequences? It rarely happens, because 25 most people will say, Well, if I'm not the

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(518) 371-8910 1 candidate, I'm not going to go raise money, 2 I'm not interested in going forward. 3 The solution to the Feerick 4 Commission is sort of interesting. Let me 5 just point out one thing the Feerick 6 Commission did recommend, which I think shows 7 the depth of the talent on the commission. 8 That sometimes with great talent, you come up 9 with absolutely foolish decisions. 10 One of the decisions is that if you 11 get -- I think the number was, in the original 12 report, if you have -- if a person has 13 contributed $500 or more to a judicial 14 candidate, they are precluded from appearing 15 before that candidate because we don't want 16 that judge in any way to be influenced because 17 that's someone who contributed. 18 Think about that for a minute. Any 19 practicing lawyer would love to pay $500 in 20 order not to appear before a specific judge 21 that maybe they've had some bad dealings with. 22 So how is that reform? It's absolutely 23 unbelievable. 24 So what's the reform for the 25 problem that happened in Brooklyn that is

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(518) 371-8910 1 suggested by the Feerick Commission, adopted 2 by the Assembly? We're going to create a 3 bureaucracy, we're going to create another 4 bureaucracy. Each judge will select five 5 members -- 15 members on each commission. 6 There's all these commissions all throughout 7 the state, the judicial election qualifying 8 commissions all over the state to determine 9 qualifications. 10 I'm not quite sure what 11 qualification commissions has to do with 12 trying to open up a process so that more 13 people have at least the opportunity to run if 14 you're not the self-anointed one. 15 So this bill is just one 16 suggestion. It's not the be-all and the 17 end-all. But it seems to me it opens the 18 process. And we're not going to be concerned, 19 I don't think, about too many primaries, at 20 least if the Supreme Court judge situation is 21 the same as the County Court and Family Court 22 judge. 23 Lastly, and I think, you know, what 24 I believe is happening -- and the Committee on 25 Modern Courts has been looking at this for

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(518) 371-8910 1 years -- and that is the appointed process, 2 appointing judges. Do away with election of 3 judges. It's unseemly. It's a horrible 4 thing. And what I think is truly happening 5 here with the Feerick Commission and Judge 6 Kaye's recent suggestions as far as these 7 judicial election qualifying commissions is 8 because now we're setting in place the 9 bureaucracy that will make the transition from 10 elected judges to appointed judges. 11 And anybody who thinks for one 12 moment that there's not politics in the 13 appointment process, they don't belong in this 14 body. They're just too naive to be in this 15 body. There is politics all over the place, 16 including the selection of judges for the 17 Court of Appeals. 18 There's an example that I 19 probably -- no, I'd better not give. But it 20 was a judge that simply was, with all these 21 qualification committees, with all these 22 different groups that determine 23 qualifications, one of the Court of Appeals 24 judges in recent times was actually appointed 25 by a governor, and that particular candidate

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(518) 371-8910 1 was the least qualified, according to the 2 qualifying factors that you go highly 3 qualified, qualified. And six months before 4 that time this person was determined to be 5 qualified, she was determined not to be 6 qualified for the Appellate Division, the 7 mid-level court. 8 Now, that's merit selection for 9 you. That's merit selection for you. So 10 that's just one example. It happens in every 11 county every day of the week. 12 So what we're talking about, sure, 13 it's easier, sure, it's less expensive to 14 appoint people. But on the other hand, that's 15 not what democracy is all about. We ought to 16 be able to be in a position where those who 17 are not the anointed ones at least have the 18 opportunity, if they choose to get on a 19 ballot, to try to become a judge. 20 And that's all the intent here. 21 There is no intent here to deprive any race or 22 creed of any opportunity. In fact, it opens 23 opportunities for some that have been closed 24 unless you're part of that political clique 25 and you're involved in politics to that

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(518) 371-8910 1 degree. 2 So I really, truly believe that 3 this is a good bill to start the dialogue. 4 The Assembly has a bill in the Assembly 5 presently dealing with all of these committees 6 and have more judicial qualification review 7 and all of this. That's wonderful. Maybe 8 there is something in between. Maybe there is 9 something that we can negotiate. But up till 10 today, we have not had a bill pass in this 11 house on this issue. Now both houses have it. 12 And quite frankly, I would call 13 upon the leadership to try to get conference 14 committees and start talking about these 15 weighty issues that we're dealing with today. 16 This is one bill. I think it's a good bill. 17 It's not the only bill. And I think we can 18 reach a consensus if we just don't aim for 19 what I think many are aiming for, the 20 abolition of election of judges. And that we 21 truly have an election process that's fair to 22 all and gives all the opportunity to 23 participate. 24 Thank you, Madam President. 25 THE PRESIDENT: The debate is

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(518) 371-8910 1 closed. 2 The Secretary will ring the bell. 3 Read the last section. 4 THE SECRETARY: Section 8. This 5 act shall take effect immediately. 6 THE PRESIDENT: Call the roll. 7 (The Secretary called the roll.) 8 THE PRESIDENT: Senator Winner, 9 to explain your vote. 10 SENATOR WINNER: Thank you, Madam 11 President. Very briefly to explain my vote. 12 In the spirit of Senator 13 DeFrancisco's assurances that this is the 14 beginning of a dialogue, I think that it is 15 important, in view of the fact that the 16 federal decision is there, it is moving us 17 toward a primary system. And in the 18 likelihood that occurs, we certainly need to 19 do a lot in order to move the process away 20 from where we are now. 21 But there's one thing that is 22 significantly missing from this debate, and 23 that is in an area such as mine that comprises 24 portions of two judicial districts. First of 25 all, I haven't heard a lot about the quality

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(518) 371-8910 1 of judges. We universally feel that the 2 judges that serve our judicial district in the 3 Supreme Court are eminently qualified. 4 But what we do worry about is 5 whether or not there's going to be access to 6 justice and whether there's going to be access 7 to the services that Supreme Court provides 8 not only to the legal community but to the 9 litigants. And that is something that I'm not 10 hearing about. 11 And the problem that you're going 12 to have in areas such as mine is that we have 13 a number of rural counties that will have no 14 access to these types of judges. In the one 15 judicial district in the one half of my Senate 16 district, we have total domination by a 17 metropolitan area as to who gets elected to 18 the Supreme Court. On the other hand is the 19 portion of the judicial district that has an 20 understanding that the judicial convention 21 produces an allocation of Supreme Court judges 22 that represent all the rural areas and provide 23 that type of access to the justice that the 24 Supreme Court provides. 25 So, ladies and gentlemen, I think

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(518) 371-8910 1 that we're missing some of the point as to 2 assurances that we're providing the services 3 that the Supreme Court is providing to the 4 legal community as well as the litigants. And 5 in that spirit, I hope as we move this debate 6 forward that we're not going to lose sight of 7 the services that are necessary of the Supreme 8 Court to our rural communities that are 9 otherwise not going to be provided with 10 sitting Supreme Court judges to serve those 11 rural counties. 12 And so, Madam President, in that 13 spirit I vote aye. 14 THE PRESIDENT: You will be so 15 recorded, Senator Winner. 16 Senator Connor, to explain your 17 vote. 18 SENATOR CONNOR: Thank you, Madam 19 President. 20 I want to thank Senator Winner for 21 pointing out that diversity embraces more than 22 just the complexion of one's skin or one's 23 ethnic origins, but it includes geographic 24 diversity, which is fostered by the convention 25 system.

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(518) 371-8910 1 Secondly, Senator DeFrancisco, 2 Madam President, made an allusion to me that 3 maybe was missed by those who didn't read the 4 decision. The judge also missed my real 5 testimony. 6 What I testified was I didn't 7 openly fight the county chairman, not because 8 I was trying to get a nomination for 9 someone -- I was the minority leader of the 10 State Senate, and Senator Gentile, one of our 11 members, already had the nomination, was 12 engaged in an election campaign, and I needed 13 the party's support for it. 14 Judge Gleeson didn't get it; I 15 guess Senator DeFrancisco didn't get it. 16 Furthermore, let me point out that 17 with respect to the rich white guys from 18 Manhattan, you know, many of the large law 19 firms have what they call decompression. 20 Their compensation is stepped over time. So 21 in their fifties, they're making a 22 million dollars a year, and when they hit 62 23 or 65, their compensation suddenly goes down 24 to $85,000 a year. You can see that in the 25 Law Journal. There's lawsuits over it.

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(518) 371-8910 1 A 65-year-old millionaire Manhattan 2 lawyer who suddenly has -- he's in the same 3 firm, but his compensation went down to 4 $65,000, just might decide he'll run for the 5 State Supreme Court. Has he ever thought 6 about running for the Civil Court of the City 7 of New York before? No. Would he think about 8 running for a County Court judge upstate? No, 9 Madam President. And he wouldn't run for a 10 Family Court seat. 11 In his mind, millionaire Manhattan 12 Wall Street lawyer thinks the Supreme Court of 13 the State of New York is worthy of his latter 14 years in the profession of law. And who 15 knows, his friends that he went to law school 16 with who live in Idaho and Iowa and elsewhere 17 will think he is on the highest court of the 18 state when they get that letterhead saying 19 "the Supreme Court of the State of New York." 20 So it will happen, Madam President. 21 These people will run when money talks. 22 THE PRESIDENT: And you will be 23 so recorded, Senator Connor. 24 Senator DeFrancisco, to explain 25 your vote.

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(518) 371-8910 1 SENATOR DeFRANCISCO: Senator 2 Winner made an excellent point, and that's 3 what the whole concept is about, trying to 4 negotiate something somewhere in the middle. 5 Because there are rural districts that 6 traditionally do get judgeships that they 7 wouldn't based on the population. 8 And there's a solution to that if 9 it's negotiated, and that solution would be to 10 change the judicial districts so the judges 11 would run in a way that would make sure that 12 the rural areas would maintain their fair 13 share and local access to federal judges. 14 As far as the reference that I made 15 concerning what Senator Connor mentioned, all 16 the point was is that when you're on a 17 judicial convention as a delegate, you're in a 18 position where you have also other political 19 considerations. And other political 20 considerations can tend to allow you to ignore 21 somebody who shouldn't be nominated as a 22 judge. That's all I'm saying. 23 And that's, I think, politics that 24 would be avoided in the event that we went to 25 a system similar to the system that this bill

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(518) 371-8910 1 calls for. 2 I vote aye. 3 SENATOR CONNOR: Point of 4 personal privilege. 5 I was not a convention delegate. 6 SENATOR DIAZ: To explain my 7 vote. 8 THE PRESIDENT: Senator Diaz, to 9 explain your vote. 10 SENATOR DIAZ: Thank you, Madam 11 President. 12 My name was also mentioned by the 13 good Senator over there. And what I was 14 talking about the bill has nothing to do with 15 racism. The Senator said that I was calling 16 this bill a racist bill. It has nothing to do 17 with racism. 18 It has to do with something called 19 self-preservation, preserve what you have. It 20 has nothing to do with racism, where you're 21 trying to preserve -- now there's another 22 thing that they're trying to say, merit 23 selection of judges by the governor. 24 Merit selection of judges by the 25 governor, that's another option. Meaning let

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(518) 371-8910 1 the governor appoint and decide who's going to 2 be the judge. But the time that we in the 3 minority community get to become governor, 4 forget about that. So to have the governor 5 now be the one to appoint judges is another 6 way of taking away what we already are 7 achieving. 8 So, Senator, it has nothing to do 9 with racism. It has to do with 10 self-preservation. And we in the Hispanic 11 community and in the black community, we have 12 fought hard to get the same thing that all of 13 you got before for many years. Let us have 14 it. Let us enjoy it the same way you enjoyed 15 it for many years. 16 I'm voting no. 17 THE PRESIDENT: You will be so 18 recorded, Senator. 19 The Secretary will announce the 20 results. 21 THE SECRETARY: Those recorded in 22 the negative on Calendar Number 220 are 23 Senators Andrews, Breslin, Connor, Diaz, 24 Dilan, Gonzalez, Hassell-Thompson, L. Krueger, 25 C. Kruger, Onorato, Sabini, Savino,

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(518) 371-8910 1 Schneiderman, A. Smith, M. Smith, Stachowski 2 and Stavisky. 3 Those Senators absent pursuant to 4 Rule 9: Senators Duane, Golden, Meier, Spano 5 and Volker. 6 Ayes, 35. Nays, 17. 7 THE PRESIDENT: The bill is 8 passed. 9 Senator Morahan, that completes the 10 reading of the calendar. 11 SENATOR MORAHAN: Thank you, 12 Madam President. Is there any business at the 13 desk, any housekeeping at the desk? 14 THE PRESIDENT: Yes, there is, 15 Senator. 16 Senator Fuschillo. 17 SENATOR FUSCHILLO: Madam 18 President, I move that the following bills be 19 discharged from their respective committees 20 and be recommitted with instructions to strike 21 the enacting clause: Senate Print Number 22 6434. 23 THE PRESIDENT: So ordered. 24 Senator Morahan. 25 SENATOR MORAHAN: Does that

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(518) 371-8910 1 complete our business? 2 THE PRESIDENT: There's no 3 further housekeeping, Senator. 4 SENATOR MORAHAN: Being that 5 there's no further business before the Senate, 6 I move we adjourn until Tuesday, 7 February 14th, at 3:00 p.m. 8 THE PRESIDENT: On motion, the 9 Senate now stands adjourned until Tuesday, 10 February 14th, 3:00 p.m. 11 (Whereupon, at 5:10 p.m., the 12 Senate adjourned.) 13 14 15 16 17 18 19 20 21 22 23 24 25

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(518) 371-8910