Victory for Recusal Reform in New York

New York's Chief Judge will announce a new state policy that tackles an issue of critical significance to judicial independence and will shore up public confidence in fair and impartial courts: reforming judicial disqualification practice.

February 14, 2011

In his State of the Judiciary address tomorrow, New York’s Chief Judge, Jonathan Lippman, will announce a new state policy that tackles an issue of critical significance to judicial independence and will shore up public confidence in fair and impartial courts: reforming judicial disqualification practice. 

The new rule takes aim at the conflicts of interest that can arise when the same parties and lawyers who fund judges’ election campaigns appear in their courtrooms. The Brennan Center has long urged states to address the problems that arise from money in judicial elections, and we sent Judge Lippman a letter last fall urging him to take action on judicial disqualification. We applaud Judge Lippman for his leadership on an issue of unparalleled importance to the judiciary.

Public confidence in the courts is at stake. Three in four Americans believe that campaign spending affects courtroom decisions. More than 80 percent believe judges should not hear cases involving major campaign supporters. In its landmark decision in Caperton v. A.T. Massey Coal Co., the United States Supreme Court said that large campaign expenditures can cause “a serious risk of actual bias” in courtroom decisions.

New York’s new rule meets the challenge by providing that “no case shall be assigned” to a judge to whom any parties or lawyers involved in the case donated $2,500 or more in the preceding two years. New York is the eighth state in the last two years to adopt a rule that disqualifies judges when campaign spending raises questions about judicial impartiality. Utah, Arizona, Washington State, Oklahoma, Iowa, Missouri, and Michigan have already done so (and Georgia may soon adopt a very promising new rule). None of the rules adopted thus far are identical. The New York Times described New York’s unique rule as “the most restrictive in the country.” That’s true — and not true.

New York’s new rule establishes a per se threshold: if a party or lawyer contributes $2,500, the judge is disqualified—no further questions asked. In terms of the triggering amount, New York’s rule is not the most restrictive: two other states have rules that disqualify judges when spending passes a threshold even lower than New York’s. (In Arizona, the disqualifying threshold is $840, and in Utah, it’s less still: A judge can’t hear a case if a party or lawyer has spent only $50.)  New York’s rule also applies only to direct contributions to candidates; it is silent on the kind of independent campaign expenditures that have played a major role in judicial elections in states outside New York.  Policies recently adopted in Washington State and Iowa are arguably stricter than the New York rule because they extend to cover independent expenditures as well as contributions.

New York’s rule arguably is the nation’s most restrictive, however, in terms of whether judges have any discretion in determining whether disqualification is necessary. Under the Empire State’s new policy, judges themselves won’t decide if they’re barred from hearing a case under the rules. That decision will be made by court administrators—even before the initial case assignment is made. So judges who might have conflicts of interest will never have the chance to rule on their benefactors’ claims. Disinterested, neutral decision-makers will be in charge of making all disqualification decisions.

Ensuring neutral assessments of potential conflicts of interest is a goal of the utmost importance. The Brennan Center has repeatedly said that states should adopt rules to guarantee that challenged judges don’t have the last and final word on whether to step aside (as is, unfortunately, the case in many states today). By having objective court administrators evaluate conflicts of interest, rather than the challenged judges themselves, New York’s new rule addresses one of the most criticized aspects of judicial disqualification practice across the nation.

(As laudable as the goal of insuring wholly neutral, disinterested decision-making on disqualification issues is, having court administrators apply an automatic, per se rule does create one opportunity for mischief. If an automatic rule is much easier to apply than a more nuanced standard that takes into account the totality of circumstances surrounding a party’s campaign spending, it’s also more easily gamed. Imagine a major corporation planning to bring an important lawsuit, but afraid that a particular judge will be hostile to its claims. Under an automatic rule, all the company has to do is cut a check for $2,500 to the disfavored judge, and it can be sure he or she won’t get near the case. That’s why, to prevent such judge shopping, it’s important to allow any party whose opponent has made a presumably disqualifying contribution to waive disqualification. We hope that, as the New York rule is finalized, an effective waiver provision designed to discourage gamesmanship will be included.)

Under Chief Judge Lippman’s leadership, New York is poised to join the vanguard of states showing bold leadership and generating momentum for recusal reform nationally. To accelerate this movement, it is time for the organization that has defined judges’ ethical duties for nearly a century – the American Bar Association – to again take up the mantle of leadership.

The ABA has played a leadership role in defining judges’ ethical obligations since an ABA committee led by then-Chief Justice (and former President) William Howard Taft, drafted the first formal ethics rules for American judges in 1924. The Association is certainly aware of the stakes: Two years ago, it filed a brief with the U.S. Supreme Court that said, “Few actions jeopardize public trust in the judicial process more than a judge’s failure to recuse in a case brought by or against a substantial contributor.” The ABA’s House of Delegates is currently considering a proposal that would urge states to draft disqualification rules that clarify when recusal is appropriate because of campaign spending.

Whether or not the ABA adopts the pending proposal as currently drafted, it is high time it took action on judicial disqualification. As Chief Judge Lippman explained: “Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. . . . If we don’t have that, we don’t have anything.” New York’s new rule is a step in the right direction.