Groups see two problems with N.Y.'s disqualification rule

John O'Brien Mar. 16, 2011, 12:10pm


ALBANY, N.Y. (Legal Newsline) - Two groups have voiced concerns over New York Court of Appeals Chief Judge Jonathan Lippman's proposed plan to ban judges from hearing the cases of their campaign contributors.

The Justice at Stake Campaign and the Brennan Center for Justice at NYU School of Law wrote Lippman Tuesday to back his proposed rule and to shed light on what it feels are two problems. Lippman's rule would keep a judge from hearing cases involving litigants or lawyers who have contributed at least $2,500 to his or her campaign.

"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," the two groups said in a statement.

However, the groups mention another possible problem. Noted tort reform advocate Ted Frank wrote about it Feb. 15 on the blog

"If I'm in New York state court, and dislike the judge my case has been assigned to, can I get a new judge for the mere cost of $2,500?" Frank wrote. "If there's a twelve-judge division, can a $27,500 investment ensure that I get the one judge I'd prefer my case to be assigned to?"

Justice at Stake and the Brennan Center agree that the rule could invite judge-shopping. They suggest a waiver provision that allows any party whose opposition contributed to the judge should be permitted to waive disqualification.

"We urge you to provide a waiver mechanism that would prevent the kind of gamesmanship that could defeat the rule's very intent," the groups wrote.

"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."

The groups' other concern is that the rule only applies to direct campaign contributions and does not take into account independent expenditures. Of the most famous of examples are the millions of dollars spent by Massey Energy CEO Don Blankenship in 2004 in support of Brent Benjamin in a West Virginia Supreme Court race.

The U.S. Supreme Court later ruled that Benjamin needed to recuse himself from a Massey appeal of a $50 million case.

The groups note that information on independent expenditures is not available in New York.

"(W)e believe the most efficient way to identify potential conflicts of interest... 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," they say.

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