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Proposed New York Rule on Judicial Disqualification Due to Campaign Contributions

By Lisa R. Bliss, Litigation News Associate Editor – May 17, 2011

The state of New York is among the latest to propose judicial disqualification rules for cases in which the parties, lawyers, or their law firms have made contributions to a judge’s election or reelection campaign. The New York rule proposal [PDF] provides that a campaign contribution conflict exists in cases where an attorney or party in a case has contributed $2,500 or more individually, or $3,500 or more as part of a group of parties or a law firm, to the assigned judge or justice’s campaign for elective office within two years prior to such assignment. In such cases, the Chief Administrator of the Courts is directed not to assign the case to a judge with a conflict, except in cases of emergency or as dictated by the rule of necessity. The rule, proposed by Chief Judge Jonathan Lippman, was posted for public comment from February 18 through April 29, 2011.

The proposed New York rule is drawing the attention of litigators. “It is a good rule in the sense that it is not attacking the idea of judicial corruption, but more addresses the public’s perception of the judiciary,” says Sharon D. Sirott, Chicago, a commercial litigator and chair of the Judiciary Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee. “It is a simple, bright-line rule that does not leave any discretion for judges or parties to apply,” she says. “It allows the public to feel confidence in the judiciary and the impartiality of judges.”

Sirott also notes that the proposal takes the burden off of judges to know who their contributors are because judges do not necessarily know all of the contributors to their campaigns. It also takes the burden off of parties to file motions for recusal in instances where opposing counsel or parties may have made contributions. “It can be uncomfortable to ask a judge to recuse herself,” she says, “and parties do not like to be in the position of rejecting the judge assigned to their case.”

Several states implemented disqualification rules in response to the rigorous recusal standard for elected judges after the U.S. Supreme Court ruled in 2008 that large campaign donations can create “a serious risk of actual bias” in judicial rulings in Caperton v. A.T. Massey Coal Co. [PDF]. For example, Arizona, Utah, California, Iowa, Michigan, Missouri, Oklahoma, and Washington have all adopted new or revised codes of judicial conduct relating to disqualification when judges know or are made aware upon timely motion that a party, lawyer, or a law firm has made contributions to the judge’s campaign.

One flaw that Sirott notes in the rule is that the proposal does not address the situation where campaign contributions are made during litigation that is pending. “Could a party raise the existence of a contribution made after the case has been assigned?” she asks. “I think it should be a waivable conflict, but the rule does not provide for a waiver,” says Sirott. “For example, if both parties to litigation have made contributions to the judge’s campaign, shouldn’t they cancel each other out or couldn’t the parties agree that because they are both contributors, there should be no disqualification?” she asks.

The rule could also be problematic for small or rural jurisdictions, where there are only a few judges, and many lawyers or law firms are campaign contributors. In those jurisdictions, a new rule like the New York proposal could result in the disqualification of all available judges. “Then who would be available to hear the cases?” asks Sirott. Presumably, the provision in the New York proposal for the rule of necessity would address this concern.

Dori A. Hanswirth, New York City, cochair of the Section of Litigation’s Trial Practice Committee observes that the New York rule could also have the effect of overburdening the court system. “Our court system is already stretched to its end, cuts are continuing, and our judges have not had a pay raise in many years,” she notes. “It is a real crisis, and this [rule] could slow things down even more,” she says. Nevertheless, she observes that disqualification rules such as the proposed New York rule are designed to address the public’s underlying suspicion of the judicial election process and the judiciary itself.

She laments, however, “I think it is a sad comment on the Chief Judge’s view of other judges’ ability to know when they should recuse themselves.” “Not every judge is the same,” she notes. “Some would be completely uninfluenced by campaign contributions and some judges will acknowledge that contributions could influence them and so they recuse themselves.” “Why don’t we leave it up to the judges?” Hanswirth asks. “A good judge ought to be able to enforce judicial ethics themselves.”

Keywords: litigation, judicial disqualification, ethics, judicial recusal


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