The New York Post by VICTOR A. KOVNER - August 31, 2010
An exclusive story in yesterday's Post revealed that a significant number of candidates for election to New York's Civil Court this fall have accepted campaign contributions from the very attorneys who might appear before them. Unfortunately, the main contributors to judicial campaigns, other than the candidates themselves, often are such lawyers. This is no recipe for justice and fairness. Sadly, this is not a new issue -- especially in New York state, where about 73 percent of full-time judges are elected. As long ago as 2004, state Chief Judge Judith Kaye's Commission to Promote Public Confidence in Judicial Elections found that 94 percent of voters believed campaign contributions influenced how judges decided court cases. A startling 45 percent of the New York judges polled thought that the donations influenced judicial decisions to some degree. In a national poll conducted in February 2009, more than 90 percent of those surveyed said judges should be removed from any case that involves an individual or group that contributed to the judge's election campaign. The Fund for Modern Courts believes that the state Court of Appeals could improve the public's perception of the impartiality of elected judges by adopting a simple rule, namely: A judge must recuse him- or herself whenever his or her election campaign receives $1,000 or more from one of the parties or lawyers in the case. This rule would require judges to automatically step aside from presiding over matters involving such contributors.
The impropriety of judges presiding over cases involving political donors was highlighted by the case of Caperton v. Massey, where a justice of West Virginia's highest court had failed to recuse himself from the appeal of a $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting the judge's electoral campaign. Last year, the US Supreme Court ruled that the justice had violated the Due Process Clause of the 14th Amendment by refusing to step aside. Closer to home, in 2005 the Court of Appeals removed Brooklyn Surrogate Court Judge Michael Feinberg from the bench, citing a number of his decisions -- including awarding excessive fees of more than $2 million to one of his campaign contributors, to the detriment of unknowing litigants. These types of injustices may not be common, but they have a significant impact on public perception. Worse, they suggest that similar instances of partiality may happen far more often on a smaller scale, where judges have less reason to be concerned about any scrutiny. The Fund for Modern Courts -- which has been working to improve New York's courts for more than half a century -- believes that the automatic-disqualification rule would address legitimate public concern about the influence of campaign contributions on judges. Such a recusal rule would prevent a wide variety of other instances in which public confidence in the judiciary might be undermined as a result of campaign contributions by the parties in a case. By requiring judges to step aside from cases in which they've received donations of $1,000 or more from one of the parties or lawyers involved, New York can rein in some of the worst abuses that the linkage of money and the judiciary can foment. It is a simple, straightforward way to increase public confidence in the administration of justice.
Victor A. Kovner chairs the Fund for Modern Courts, a nonprofit group dedicated to improving New York state courts.