March 15, 2011
The Honorable Jonathan Lippman
New York Court of Appeals
20 Eagle Street
Albany, New York 12207–1095
Re: Proposed Part 151 of the Rules of the Chief Administrator of the Courts
Dear Chief Judge Lippman:
On behalf of the Brennan Center for Justice at N.Y.U. School of Law and the Justice at Stake Campaign, we write to comment on the recently proposed Part 151 of the Rules of the Chief Administrator of the Courts. We commend you for your strong leadership in reforming New York’s judicial disqualification practices, and believe that the proposed rule astutely recognizes the threats to judicial independence and impartiality that can arise when those who fund judicial election campaigns appear in court. While we strongly support adoption of the proposed rule, we write to highlight two concerns that we urge you to address.
First, as currently drafted, the proposed rule only applies to direct campaign contributions; it does not call for disqualification based on independent expenditures in judicial campaigns. Accordingly, we would urge development of an additional rule to deal with independent spending.
In the context of judicial elections, independent spending raises concerns identical to those associated with contributions. As retired U.S. Supreme Court Justice John Paul Stevens observed, “some [independent] expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.” Accordingly, a provision addressing conflicts of interest that arise from independent campaign spending would be an effective complement to the proposed rule on contributions.
It is true that, to date, New York has not seen the same levels of independent spending in judicial campaigns as has become the norm in other states. But, given other states’ experiences, it may only be a matter of time before the Empire State’s judicial races begin to involve independent expenditures similar to those that bombard voters in other political contests in New York. Indeed, the proposed rule may actually tend to accelerate independent expenditures in judicial elections: parties, lawyers, or interest groups that wish to curry favor with an elected judge will be motivated to spend more than the triggering threshold on independent campaign support, while ensuring that their direct contributions do not rise above the $2,500 threshold. This would permit them to signal their support for a particular judge without triggering automatic disqualification.
For the foregoing reasons, we urge you to consider adoption of an additional rule that would address the issue of independent campaign expenditures. Because publicly accessible information on independent expenditures is not presently available in New York, we believe the most efficient way to identify potential conflicts of interest involving independent spending would be to mandate that litigants (and counsel) disclose independent expenditures they have made in support of (or in opposition to) any judge(s) assigned to hear their case—or to state that no such expenditures have been made. The Brennan Center advocates a rule under which such disclosures would be made through an affidavit filed out the outset of litigation, similar to disclosures required in other litigation contexts. A discussion of such a rule (and proposed model language), can be found in the Brennan Center’s paper, Promoting Fair and Impartial Courts through Recusal Reform, a copy of which is enclosed for your reference.
Second, we are concerned that, as proposed, the rule could invite “judge shopping” and manipulation of the judicial system. These concerns were highlighted in the Brennan Center’s report, Fair Courts: Setting Recusal Standards, which warned that under an automatic disqualification rule with a specific triggering threshold, “parties or lawyers could disqualify an unfavorable judge by making contributions (or aggregate contributions) above that amount to her campaign committee.” Under the proposed rule, parties—or counsel—likely to face litigation in a particular jurisdiction could game the system by contributing $2,500 to a particular judge who they believed would be hostile to their litigation position, thus triggering automatic disqualification and eliminating the possibility that their case would be assigned to the disfavored judge.
To prevent such efforts to abuse an automatic disqualification rule and distort its intended purpose, the Brennan Center’s report recommends a waiver provision, under which “any party whose opposition . . . contributed to the judge should be permitted to waive disqualification,” even if the contributions exceeded the presumptively disqualifying level. We urge you to provide a waiver mechanism that would prevent the kind of gamesmanship that could defeat the rule’s very intent. Implementing a waiver procedure at the administrative level, before a case is assigned to a particular judge, may pose challenges different from those involved in allowing waiver after the initial case assignment has been made, but we believe that an effective procedure can be developed to resolve these concerns—and urge that one be implemented either within the existing proposal or in an additional rule.
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We are grateful for the opportunity to submit these comments. Although we believe there are provisions that, in conjunction with the proposed rule, could strengthen disqualification practice in New York, we feel strongly that the pending proposal should be adopted, and that it will protect the reality and perception of a fair and impartial judiciary in New York.
Implementing the rule could not be more important, or more timely. The public response to the ever-escalating price tags associated with running for judicial office—in New York and other states—has been a perception that sometimes justice is for sale to the highest bidder. In the Empire State, one poll reported that 80 percent of registered voters—and 60 percent of sitting judges—believed that a judge’s independence could reasonably be questioned due to campaign contributions. And the United States Supreme Court has recognized that judicial campaign spending can cause “a serious risk of actual bias” in courtroom decisions. We applaud your leadership in responding to this threat, and urge you to address concerns about independent expenditures and gamesmanship so that New York continues as a national leader in responding to concerns about the impact that judicial campaign spending may have on the judiciary.
J. Adam Skaggs Bert Brandenburg
Counsel Executive Director
Brennan Center for Justice Justice at Stake Campaign
161 Avenue of the Americas 717 D Street, NW Suite 203
New York, New York 10013 Washington, DC 20004
(646) 292–8331 (202) 588–9700
 The Brennan Center is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. The Center’s Fair Courts Project works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in the country’s constitutional democracy. Its research, public education, and advocacy in this area focuses on improving selection systems (including elections), increasing diversity on the bench, promoting appropriate measures of accountability, and keeping courts in balance with other governmental branches.
 Justice at Stake is a nationwide, non-partisan partnership of more than 50 judicial, legal, and organizations. Its mission is to educate the public and work for reforms to keep politics and special interests out of the courtroom—so judges can do their job protecting the Constitution, individual rights, and the rule of law. The arguments expressed in this letter do not necessarily represent the opinion of every Justice at Stake partner or board member.
 Our organizations advocate robust substantive disqualification standards and effective procedural rules to protect due process and reassure citizens that their courts are fair and free of actual or apparent partiality. The Brennan Center issued a comprehensive report on judicial disqualification in 2008, a copy of which is enclosed for your reference. See James Sample et al., Brennan Ctr. for Justice, Fair Courts: Setting Recusal Standards (2008). Both organizations filed amicus curiae briefs in the landmark disqualification case Caperton v. A.T. Massey Coal Co. (Our amicus briefs are available at http://www.brennancenter.org/caperton.)
 Citizens United v. FEC, 130 S. Ct. 876, 968 (2010) (Stevens, J., dissenting).
 See Linda King, Nat’l Inst. on Money in State Politics, Indecent Disclosure: Public Access to Independent Expenditure Level at the State Level 7 (2007), http://www.followthemoney.org/press/Reports/200708011.pdf.
 See Adam Skaggs & Andrew Silver, Brennan Ctr. for Justice, Promoting Fair and Impartial Courts through Recusal Reform (2011),
 See Sample et al., supra note 3, at 30.
 See Amelia T.R. Starr et al., The Fund for Modern Courts, A Heightened Recusal Standard for Elected New York Judges Presiding Over Cases, Motions or Other Proceedings Involving Their Campaign Contributors 21–22 (2010), http://moderncourts.org/documents/april_2010_recusal.pdf.
 See generally James Sample et al., Brennan Ctr. for Justice, The New Politics of Judicial Elections 2000–2009: Decade of Change (2010), http://www.brennancenter.org/NPJE09.
 A 2010 Harris Interactive survey showed that 71% of voters believed campaign expenditures significantly impact judicial decisions. Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722. A 2007 poll showed 79% of corporate executives hold a similar view. Id. Moreover, 69% of all surveyed voters indicated that they would support reforms reducing the influence of special interests in the courts. Id.
 See Starr et al., supra note 9 at 31.
 Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009).