This blog has been closely following the Democratic primary elections for county judge in Brooklyn, New York, where voters were forced to choose between candidates approved by the Democratic party machine and a group of “insurgents” running on an independent slate. The election took place earlier this month, and the results are … flabbergasting.
The Ontario Judicial Council has issued its disciplinary opinion regarding Justice Bernd Zabel, the Hamilton-based trial judge who wore a red “MAKE AMERICA GREAT AGAIN” baseball hat into his courtroom on the day after the U.S. presidential election last November. The hat, of course, is associated with Donald Trump’s presidential campaign. It is uncontested that Judge Zabel wore the hat into his courtroom, stated “Just in celebration of a historic night in the United States,” and then removed the hat, placing it on the dais with the MAGA phrase visible to all in the courtroom. He presided over about ten matters before taking a recess, at which point he removed the hat from the courtroom. The hat did not return after the recess.
Unsurprisingly, Judge Zabel’s behavior spurred sharp reactions, including 81 formal complaints from a variety of public interest organizations, lawyers, and law professors. (I informally critiqued his actions on this blog as well; see link above.) Interestingly, however, none of the formal complaints came from any lawyers or parties before Judge Zabel that day. Indeed, lawyers in the courtroom that day, and those who have appeared before Judge Zabel in the past, defended his overall judgment and integrity even as they classified the events of that morning to be a professional mistake.
Judge Zabel, too, quickly realized his error. After the Globe and Mail ran a story about the incident two days later, the judge made a public apology in his courtroom. He explained that he was trying to make a humorous gesture, that in retrospect it was entirely inappropriate, and that he sincerely regretted the decision. Later, Judge Zabel sought out private lessons on judicial ethics from another member of the bench.
The judge’s contrition notwithstanding, the Hearing Panel of the Ontario Judicial Council on Monday suspended Judge Zabel for 30 days without pay. This was the most severe sanction they could issue, short of removing the judge from office. In my view, it was too harsh a sanction, supported by surprisingly slipshod reasoning. More below.
Justice Esther Hayut was unanimously elected to the position by the country’s Judicial Appointments Committee. The vote appears to have been pretty pro forma, in that the position traditionally goes to the longest serving justice. But the unanimity of voting members also masks some tension between Israel’s right-leaning and centrist parties over the composition of the Supreme Court. The Times of Israel has a fuller explanation.
In Kenya, that is.
“A declaration is hereby issued that the presidential election held on August 8 was not conducted in accordance to the constitution and applicable law, rendering the results invalid, null and void,” said Judge David Maraga, announcing the verdict of four out of the court’s six judges.
The electoral board “failed, neglected or refused to conduct the elections in accordance with the constitution,” Maraga added. Two of the court’s judges dissented with the verdict, saying the will of the people should not be nullified due to challenges that arose during the electoral process.
New elections must take place within 60 days, according to the ruling.
This is a remarkable display of judicial independence, unprecedented in Africa. And it appears that everyone will abide by the order peacefully. At the same time, however, President Uhuru Kenyatta has lashed out at the judiciary, promising to “fix” the judicial system should he win the revote.
Although President Andrzej Duda vetoed two legislative proposals last month that would have severely weakened the independence of the Polish judiciary, he did sign a third bill that gave the country’s Justice Minister the power to remove and replace the heads of the lower courts. That law went into effect this week, and the results are not promising.
The German media site Deutsche Welle reports on district judge Waldemar Zurek, a spokesman for Poland’s National Council for the Judiciary, who has been personally investigated by prosecutors on very flimsy grounds. According to the story, Zurek
fears his computer will be seized for the information and contacts it contains. “They’ve already looked at my phone records – without my permission,” he said, which Polish law allows. The threatening letters were just a pretext to monitor him, Zurek said.
Zurek states in the story that he assumes his public stance in favor of judicial independence will cost him his job soon. Will the Polish people stand for it?
I have previously discussed the candidacies of five Brooklyn residents who are running for judge, but refuse to go through the selection system dominated by Democratic Party bosses. In the latest twist in the story, a spokesman for the five candidates has accused local party boss Frank Seddio of hosting a “illegal” fundraiser for the party’s preferred candidates on August 23.
Surely some of this is an effort to stay in the news cycle, but the accusations of spokesman Gary Tilzer are still damning:
Seddio, an attorney, sent the red, white and blue invite to more than 185 people — including sitting judges, judicial candidates, attorneys, developers, politicians, lobbyists and members of the Judicial Screening Committee. The invite vaguely touts fund-raising “to support our contested countywide candidates.”
It doesn’t specify the candidates who will benefit or the election that’s involved.
Guests were instructed to write their $500 to $5,000 checks out to the Kings County Democratic County Committee, an account that’s controlled by the Brooklyn Democratic Party, and mail them to Seddio’s home address, according to the letter.
Tilzer’s three-page letter to the committees said Seddio’s fund-raising efforts violate the Rules Governing Judicial Conduct and are unethical on seven points, including not disclosing who the event benefits, inviting sitting judges to contribute and, since the beneficiaries aren’t named, having judicial candidates raising money with potential nonjudicial candidates.
As I have noted before, those who are truly concerned about the influence of money in politics might want to start by shining a light on local hornet’s nests like these.
In June, I flagged an interesting story of five judicial candidates in Brooklyn who are aggressively running against the Democratic Party machine. These candidates, led by John O’Hara (a lawyer with a colorful and checkered past), assert that the borough’s independent screening panel is really just an arm of the local Democratic Party, and subject to the wishes of party bosses. All but one of the insurgent candidates has refused to go before the panel .
With the primary about a month away, the New York Law Journal weighs in with an article that captures the essence of the insurgency, as well as the establishment position. The crux of their claims: the party asserts that the 24-member screening panel simply determines candidates’ fitness for the bench, and expects no quid pro quo for the candidates it deems qualified. The O’Hara group alleges that the panel is essentially a mechanism for attorney members to receive future favors from the candidates they endorse.
I generally favor screening panels or nominating commissions as part of a comprehensive judicial selection process. But this challenge makes clear that if the panel itself is not seen as legitimate, neither will the judicial candidates it endorses. And New York has a long and unfortunate history of party boss control over the selection of local judges. We’ll see how it plays out at the September 12 primary.