NEW YORK, June 28 (Reuters) - In an attempt to combat the
influence of money in the courtroom, New York has adopted a
rule prohibiting elected judges from overseeing cases involving
their major campaign contributors.
Judges will be automatically disqualified from hearing the
cases of parties, lawyers or law firms that contribute at least
$2,500 in the preceding two years to their campaigns.
Ethicists cheered New York for establishing hard-and-fast
rules rather than pliable guidelines, even as at least one
observer referred to it as an "administerial nightmare."
The final rule, first proposed by Chief Judge Jonathan
Lippman in February, was released Tuesday and will become
effective July 15.
The rule could sharply reduce campaign contributions from
lawyers who help elect judges in the state. There are about
1,000 elected judges in New York, or about 70 percent of the
judiciary. Judges serving on most state trial courts are
elected, while appellate court judges are appointed.
New York is one of 39 states that elect some judges,
according to Justice at Stake, a nonprofit organization that
advocates for judicial transparency. Most states typically rely
on judges to recuse themselves and let litigators appeal if
they disagree with the decision.
But the new rule comes with a catch: It leaves the
disqualification determination in the hands of court
administration, which must maintain records of campaign
contributors in an updated, workable, easily-accessible
"It's an administerial nightmare across the board," said
Marc Gann, past president of Nassau County Bar Association.
Lippman defended the rule, saying that electronic
information obtained from the board of elections will be used
to determine when a judge should be reassigned.
"I think like anything else there will be a learning curve
and a phase in which we are getting up to speed," he said.
The governing body of the court system, headed by Chief
Judge Lippman -- himself an appointed judge -- drafted and
approved the rule. A committee of court administrators will
help implement it.
The rules issued on Tuesday include some modifications from
the proposed rule, after the court system received public
comments from judges, bar associations and nonprofit groups.
One key change is a new provision aimed at preventing parties
from gaming the system by giving large chunks of money to
judges that they do not want to appear before.
To avoid this, the court's chief administrator is empowered
to establish a system where the noncontributing party can waive
the disqualification rule -- essentially negating a
contributor's attempt to achieve disqualification.
"The whole idea of a waiver is it allows somebody to decide
if their rights have in fact been compromised," said Charles
Hall, spokesman for Justice at Stake, which advocated for the
waiver. The provision "makes the rule sustainable," said Hall.
Money has not yet infected New York judicial election
campaigns to the extent it has in other states, according to
anecdotal reports from lawyers and ethics groups. In
Pennsylvania, Wisconsin and Alabama, by contrast, total
candidate contributions topped $4 million in high-court races
in 2007 and 2008, according to Justice at Stake.
Limits on campaign contributions vary according to the race
and the district; the highest cap for campaign contributions
from individuals in judicial races in New York is $50,000,
though they rarely approach that number.
'AHEAD OF THE CURVE'
James Sample, an ethics professor at Hofstra Law School,
applauded New York for "being ahead of the curve in addressing
the concern before it is really a problem."
New York is at the forefront of a movement among states to
force greater disclosure of judicial contributions. That
movement was born of the 2009 Supreme Court decision in
Caperton v. A.T. Massey Coal Company, in which the court ruled
that a West Virginia judge should have recused himself from an
appeal of a $50 million jury verdict against Massey. The
company's chief executive had spent $3 million to get the judge
Eight other states have implemented judicial recusal or
disqualification rules since the Massey decision, according to
the Brennan Center for Justice at New York University School of
Law. Georgia and Tennessee also have rules in the works. Four
states -- Montana, Nevada, Texas and Wisconsin -- considered
reform but rejected it.
The American Bar Association is considering a model rule to
guide individual states and courts to implement recusal and
disqualification procedures. The rule is slated to be presented
for passage at the ABA's annual meeting in August.
(Reporting by Carlyn Kolker;additional reporting by Noeleen