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Political party officials, others, barred from receiving court fiduciary appointments

Political party officials, others, barred from receiving court fiduciary appointments
Kraham v Lippman, USCA, 2nd Circuit, Docket No.06-2695 cv

Section 36.2(c) of the Rules of the Chief Judge of the State of New York [22 NYCRR 36.2, et seq.] sets out a number of ?disqualifications for appointment? as ?guardians? or ?receivers? by New York State courts. Among those ineligible for such appointments are certain political party officials and their families or associates. Bonnie Kraham sued, contending that the rule violates her first Amendment right to freedom of association.

The U.S. Circuit Court of Appeals, Second Circuit, affirmed a lower court ruling summarily dismissing Kraham?s petition.

The specific provision challenged by Kraham, 22 NYCRR 36.2(c)(4)(I), provides as follows:

No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.

Kraham, an attorney, was elected to serve as co-chair of the Orange County Democratic Committee. She remained in her position after the adoption of the Rule and, around the time it went into effect, held court appointments as a guardian or receiver. Kraham?s petition alleged that the Rule resulted in her being denied three legal employment opportunities ? one to form a partnership with another attorney, and two to involving her joining existing law firms ? because members of the law firms did not want to become ineligible for judicial appointments.

Kraham contended that in limiting her employment opportunities because of her party leadership, the Rule violated her freedom of political association as protected by the First Amendment.* The Circuit Court disagreed. It said:

Because the Rule advanced New York?s legitimate interest in ?eliminating corruption and favoritism in the judicial appointment process,? the [district] court concluded that it withstood rational basis review.. We agree with the district court?s well-reasoned analysis.

Responding to Kraham argument that ?the denial of employment opportunities is ?[b]y definition . . . significant? and that, in her case, the practical effect was particularly severe because she lives in a small legal community providing few employment options.? the Circuit Court said the burden on Kraham?s employment is no more severe than those the United State Supreme Court upheld in U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, and Broadrick v. Oklahoma, 413 U.S. 601.

In Letter Carriers, the Supreme Court upheld the Hatch Act?s prohibition on federal employees? participation in a wide variety of political activities, including holding party office, while in Broadrick it upheld a similar state statute, 413 U.S. 602.

The Circuit Court observed that:

Appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process.

The two-year post-resignation prohibition period reasonably prevents a ?quick turnaround? from party leader to court appointee, noting that ?This period ?. is consistent with the New York Public Officers Law?s limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment [see Public Officers Law §73(8); and

Permitting waivers would vitiate the Rule?s very purpose ? to reduce judicial discretion in the appointment process ? by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible.

The court?s conclusion: 22 NYCRR 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York does not violate the First Amendment. It then affirmed the judgment of the federal district court judge dismissing Kraham?s petition.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/high-ranking-political-party-officials.html

* Kraham, conceding the importance of the interest behind the Rule, argued that it is over-inclusive, such that a substantial portion of the burden it places on associational rights does not advance the asserted government interests because the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances.

Full post as published by New York Public Personnel Law on February 03, 2011 (boomark / email).