Date: June 28, 2011
Hon. Ann Pfau
|Stringent Assignment Rule Aims to
Protect Judicial Neutrality
NEW YORK –Judges elected in New York State will no longer hear cases involving substantial contributors to their judicial campaigns—an important step toward ensuring both the perception and reality of a fair, independent judiciary—in accordance with a new judicial assignment rule announced today by Chief Judge Jonathan Lippman. Implementation of the new rule, which takes effect July 15, 2011 and applies to campaign contributions made on or after that date, will make New York's Judiciary the first in the country to systemically address the issue of money in judicial elections by administrative action. Under the new rule, no case shall be assigned to a judge, other than in an emergency or as dictated by the rule of necessity, where an individual attorney, law firm or party in the case contributed $2,500 or more to the judge's election campaign in the previous two years. Likewise, no assignment would be made in cases where appearing attorneys, their firms and their clients collectively contributed $3,500 or more to the judge's election campaign. The new rule affects nearly 1,000 elected judges statewide, or over 70 percent of New York's jurists, including Supreme, County and Surrogate's Court judges.
Since judicial assignments are automatic when contributors exceed the threshold amount, the new rule eliminates the evidentiary or persuasive burden that must be overcome in order to secure disqualification based on campaign contributions from a lawyer or party, and obviates the need for judges to engage in personal decision-making about whether or not to recuse. The new assignment rule allows judges to hear cases involving contributors when there is no other eligible judge available to hear the case, in emergencies or when required in the interests of justice. It also gives the non-contributing party the opportunity to waive the judge's disqualification if the party believes the judge can be fair and impartial regardless of the fact that the case involves contributors to his or her campaign.
Creation of the new rule was spurred by growing concern within the legal community and among scholars, public interest groups and others over the escalating influence of money in judicial elections—and the ensuing threat to judicial impartiality—as today's judicial candidates are forced to raise large sums of campaign money. The problem was highlighted in the U.S. Supreme Court's 2009 decision in Caperton v. Massey Coal, where the Court ruled that a West Virginia Supreme Court justice should have recused himself from a case involving company executives from whom he had received very large campaign donations, determining that big campaign contributions can create "a serious risk of actual bias" in courtroom decisions.
The courts' new assignment rule was approved for public comment in February 2011 by the Administrative Board of the Courts, which comprises the Chief Judge and the Presiding Justices of the four Judicial Departments of New York's Appellate Division. Following a period for public comment, the Administrative Board approved a revised version of the rule at its meeting earlier this month, with Chief Administrative Judge Ann Pfau appointing a committee of court administrators and managers to assist in the rule's implementation.
"While campaign contributions are very much part of the constitutionally established process by which many New York judges are elected, the new rule will go a long way toward addressing the appearance of conflict that may arise when a judge is assigned a case involving contributors," said Judge Lippman. "This rule promotes public confidence in the independence, fairness and impartiality of the Judiciary. It makes New York a leader in national efforts to address head-on the issue of monetary contributions to judicial campaigns."
Vincent E. Doyle, President of the New York State Bar Association, said, "The new rule will enhance public confidence in the independence of the Judiciary. The New York State Bar Association commends the Office of Court Administration for adopting it."
Milton Williams, Jr., Chair of the Fund for Modern Courts, said, "The revised recusal rule effectively addresses the necessity that, in the area of campaign contributions to judicial elections, the conduct of judges must appear beyond reproach if the public is to have confidence in the Judiciary's impartiality. The formal adoption of this rule will mark a genuine step forward in New York State and put it at the forefront of those states which are concerned about safeguarding the independence and integrity of the Judiciary. This rule will change the way that contributors, candidates for elected judicial office and the public view campaign contributions."
"The rule is a well thought-out approach that is necessary to address the perception of the undue influence of campaign contributions in judicial decision-making. This rule takes important steps toward protecting the integrity of the judicial process while avoiding judges being forced to address recusal motions regarding contributions to their campaigns," said Roger Maldonado, Chair of the New York City Bar Association's Council on Judicial Administration. "We look forward to working with the Office of Court Administration in the implementation and, if necessary, improvement of this worthwhile rule."
The new rule is available at http://www.nycourts.gov/rules/chiefadmin/151.shtml.