Rule Would Address Campaign Donations and Case Assignments

Attorneys who have contributed $2,500 or more and firms that have donated $3,500 or more to judicial candidates would be barred for two years from appearing before those judges under a new rule Chief Judge Jonathan Lippman will outline this week.

The chief judge said in an interview that he would unveil the new requirement during his 2011 State of the Judiciary address at the Court of Appeals in Albany on Tuesday.

Judge Lippman, who said he had the authority to impose the rule on his own, noted that court administrators have been considering the new rules since the U.S. Supreme Court's decision in Caperton v. A.T. Massey Coal Co., 129 U.S. 2252 (2009).

In that ruling, a 5-4 Court held that a West Virginia Supreme Court judge should have recused himself because he had received large campaign contributions from executives of a coal company in a case before him.

The judges of New York's Court of Appeals, the state's top court, are appointed, as are judges of the New York City Family and Criminal Courts. Other state judges—about three-quarters of the 1,300—are elected and frequently receive campaign contributions from lawyers who appear before them.

Judge Lippman said administrative judges will review contributions to judges made by lawyers or their law firms. When contributions to a certain judge exceed the new limits, the attorney's or firm's case will not be assigned to that judge.

Judge Lippman said his approach would relieve judges and attorneys from having to "raise their hands" and recuse themselves when there has been a large contribution.

Proposals to limit lawyers' campaign contributions have been controversial in the past.

A task force chaired by former Fordham Law School dean John Feerick recommended in 2003 that judges be required to recuse themselves whenever a party objected that an opponent, or the opponent's lawyer, had within the last five years donated more than $500 to a judge's campaigns (NYLJ, Dec. 3, 2003).

The court system decided not to adopt the rule after hearing from bar groups that the rule was unworkable because many upstate communities only had one judge and most lawyers practicing before them had contributed to the judge's campaign.

However, the size of the contribution threshold recommended by Judge Lippman could alleviate that concern. He said that he did not know how many judges or lawyers would be affected.

Information about political contributions is public record and widely available Judge Lippman pointed out.

"We are not casting any aspersions on anyone," he said. "But over the years, we are not oblivious that this has been an issue… Campaign contributions are matters of public record. So the fiction that we previously had that judges don't know who contributed to them is not really compatible with the society we live in today."

He added, "By not assigning cases in a particular situation, we are doing this systematically and in a more policy-directed way that treats judges fairly without making them raise their hands" and recuse themselves.

The Feerick commission reported in 2006 that escalating costs were undermining the public's confidence in the judiciary (NYLJ, Nov. 16, 2006).

The task force cited a Marist College poll in which more than 80 percent of the New Yorkers responding said contributions to judges could have some or a great deal of influence on judges' rulings and that people contributing to judges' campaigns should not be allowed to appear before them.

By Joel Stashenko, jstashenko@alm.com

Source: New York Law Journal