While it may be argued that the in camera ex parte proceeding at which Special Term fleshed out the contentions of the Commission, and from which the Surrogate was barred, was a violation of due process (Matter of Taylor, 567 F2d 1183, 1187), my partial dissent is not merely on that ground.
*56The Commission on Judicial Conduct is not involved in the general conduct of elections as is the State Board of Elections (Election Law, § 3-104). To a large extent, the matters sought to be inquired into in items 1 and 2 (set forth in the majority opinion, p 52) are election campaign matters.
Assuming a proper basis for the Commission’s involvement and complaint, it would be possible to proceed as to item 3 by checking the filed statement of campaign contributors and also the appointments by the Surrogate, which are matters of public record (Election Law, §§ 14-102, 14-104; Judiciary Law, § 35-a, subd 3), rather than first going on a fishing expedition.
The identity of campaign contributors cannot be kept secret. The Commission itself recognizes this: "It may be unrealistic to expect any political candidate not to know who his large contributors are, despite ethical codes and commentaries that suggest that the identities of contributors should be withheld from the judge. On the contrary, in New York, the Election Law (Section 14-102) virtually defeats this intent by requiring a public filing of contributors.” (Ann Report of NYS Comm on Judicial Conduct, March, 1979, pp 56-57; n omitted.)
Moreover, it must be recognized that, personalities and issues aside, this candidate for Surrogate was running in opposition to the established political organization.
The Committee for Modern Courts, Hon. Robert MacCrate, chairman, has stated that judicial election has "become largely a charade”. (NYLJ, Dec. 5, 1979, p 1, col 2.) "[T]he judicial candidates which come before the voters are really 'fronts’ for what happens behind the scenes in politics.” (Ibid., at p 3, col 1.) "The * * * system is neither democratic nor is it capable of placing the best qualified people in our state courts.” (N. Y. Times, Dec. 5, 1979, p B4, col 3, quoting Robert MacCrate.)
The election campaigns for the Court of Appeals in 1973 and 1974 led to an amendment to the New York State Constitution providing for merit selection of the Judges of the Court of Appeals by a Judicial Nominating Commission (art VI, § 2; Judiciary Law, art 3 A). (See Frederick Miller, Merit Selection of Judges: New York on the Threshold, NYS Bar Journal, Jan., 1979, vol 51, No. 1, p 8.)
Given the problems inherent in a campaign, be it election or primary, an outsider cannot battle the system without being in the forefront.
*57The problem is clearly stated in an article by Professor Jon R. Waltz of Northwestern University Law School in the October, 1979 issue of Judicature (vol 63, No. 4, p 185, pp 186-187) entitled "Some firsthand observations on the election of judges”:
"One is impressed, early on, if one did not previously realize it, that in a community sufficiently populous to foreclose direct dialog with voters, there is no way for a judicial candidate to communicate relevantly with the electorate. This circumstance alone renders fraudulent the suggestion that judges are popularly elected; substitute 'blindly’ for 'popularly.’ The candidate of a dominant political organization can rely on thousands of city hall payrollers to carry his or her message, which is simply, 'Elect me, I am the annointed one.’ The underfinanced challenger is precluded from waging a costly media campaign to counter this. * * *
"In short, whether or not the judicial candidate has any way to project his or her qualifications, some of the most important ones are political poison and dare not in any event be mentioned. I would not have garnered 10 per cent of the vote had I gone about mentioning, even in the most self-effacing fashion, that I am a high-standing Yale Law School graduate, a law review editor, a former member of a large and distinguished law firm, and the author of award-winning books in the legal field. Those were my political albatrosses. * * *
"Aside from the qualifications of individual candidates, there are ordinarily almost no issues in a judicial campaign upon which one can take a stand, and fewer still that strike any real sparks. One cannot manufacture issues and then promise dramatic judicial solutions to them. The candidate is cast back on bland statements about independence and efficiency, about 'justice and decency.’ The result even public-spirited citizens are not interested in judicial races and frequently do not bother to vote the judicial ballots.”
How, then, could an effective campaign, with the highest motives, be waged for judicial office unless the candidate "engaged in and attended fund-raising activites [and] acquainted herself with the identities of her contributors”?
I would adhere to the previous rulings of this court in Matter of Nicholson (67 AD2d 649).
Sandler, Sullivan and Lane, JJ., concur with Lupiano, J.; Kupferman, J. P., dissents in part in an opinion.
*58Judgment, Supreme Court, New York County, entered on July 10, 1979, modified on the law, to the extent of vacating so much thereof as enjoined the Commission from investigating the conduct of Surrogate Lambert with respect to Item 2, thereby denying the article 78 application and dismissing the article 78 petition in all respects, and as so modified, the judgment is affirmed, without costs and without disbursements.