nylawyer.nylj.comnylawyer.nylj.com/adgifs/decisions/050511comments.pdfjudicial resources andredirect casestoavoid ... Judiciary Law § 14 -"Disqualification of judge by reason ...

SUSAN TOBEY

PRINCIPAL LAW CLERK

LINDA A. LUHRS, SECRETARY

Honorable Thomas F. WhelanSupreme Court ofthe State ofNew York

1 Court Street

Riverhead, New York 11901Phone: (631) 852-2365

Fax: (631) 852-1961

April 28, 2011

John McConnell, Esq.Counsel, Office of Court Administration25 Beaver St.

New York, NY 10004

Re: Proposed Part 151 of the Rules of the ChiefAdministrator of the Courts

Dear Mr. McConnell:

I write to comment on the recently proposedPart 151 ofthe Rules ofthe ChiefAdministratorofthe Courts and to urge itsrejection. An analysis ofthe proposed rule reveals that it impinges onthe Legislature's reserved primary power to alter and regulate jurisdiction, practice and procedureintheCourts. Moreover, there isa lack ofempirical evidence demonstrating theneed forsuch aruleinNew York State, and there is a real question asto whether appropriate administrative resourcesexist toeffectuate the expressed intent ofthe rule. In essence, the proposed rule isunconstitutional,unnecessary, and unworkable.

The first concern centers on the permissible exerciseofrule-making authorityvested in theChief Administrator of the Courts.

The New York State Constitution provides: "The supreme court shall have general originaljurisdiction inlaw and equity and the appellate jurisdiction herein provided" (NY Const., Art. VI,§7[a]). The Supreme Court "iscompetent to entertain all causes ofactionf] unless its jurisdictionhas been specifically proscribed" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166,[1967]). Subject torecognized limitations, "the New York Constitution vests Supreme Court withthe power to hear any case that any other court in the UCS could hear, which is why we refer toSupreme Court as possessing both general and concurrent jurisdiction over all causes ofactions-hence the designation 'Supreme' Court" (People vCorrea, 15 NY3d 213, 227 [2010]).

As explained in Bloom v Crosson, 183 AD2d341, 344 (3dDept 1992), q##82NY2d 768(1993):

Under our State constitutional scheme, the authority to regulate thecourts is split between the Legislature and the Chief Judge. TheLegislature is imbued with the exclusive authority to regulatejurisdiction, practice and procedure in the courts (NY Const., art. VI,§ 30) while the Chief Judge is empowered to handle all matters ofcourt administration; ... the Chief Judge ... is responsible forsupervising the administration and operation of the Unified CourtSystem (NY Const., Art. VI, § 28[c]).

The regulation ofjurisdiction, practice and procedure in the courts is, by constitutional fiat,vested in the Legislature(see NY Const. ArticleVI,§ 30; Judiciary Law § 212[2][d];Matter ofA.G.Ship Maintenance Corp. v Lezak, 69 NY2d 1 [1986]; Matter ofMorgenthau v Cooke, 56 NY2d24 [1982]). In delineating the functions of the chief administrator of the courts, Judiciary Law §212(2)(d) containsa mandatethat the chiefadministrator "adopt rules and ordersregulating/?ractfcein the courts as authorizedbystatute,with the advice and consent ofthe administrative board ofthecourts,inaccordance withthe provisionsof sectionthirtyofarticlesix ofthe constitution"(emphasisadded).

The centralissue is whetherthe activityunderreviewis deemedto be a regulationofpracticeandprocedure oranadministrative function. Administrative functions involve"personnelissuesandissues relative to the form of courtrecords" (Bloom v Crosson, 183 AD2dat 344,supra). Theissuehere is not one involving "transfer of judges and causes among the courts" (see Judiciary Law §211[l][a]; see also People v Correa, 15 NY3d 213, supra), or one within the realm of anadministrative function with authority conferred by some other provision of law (see Bloom vCrosson, 183 AD2d at 345, supra [statutory authority to replace stenographers with mechanicalrecording devices]). Historically, such administrative functions, as the reassignment of cases toalleviate court congestion, was the impetus for the creation of the Unified Court Systemin 1962."A statewide system of court administration was deemed necessary in order to efficiently marshaljudicial resources andredirect casesto avoid theimbalances in workload and excessive delays thathadplagued the prior system" (People v Correa, 15 NY3dat 226, supra, citing Report of State ofNew YorkTemporary Commission on the Courts [1955]).

Here, regulationof the issue of recusal, which is otherwise left to the personal convictionsof the individual judge, is a practice and procedure issue and not a standards and administrativepolicies issue. The proposed interference with the recusal capacity of ajudge cannot beequated toadministrative functions, suchas calendar practice or the establishment of the regular hours, termsand parts ofthecourt. TheLegislature specifically detailed thenumerous administrative powers ofthe UCS administrators (seeJudiciary Law§ 211 [l][a] - [1]). Notably absentfrom this exhaustivelist is any mention of the power to regulate recusal which is compelling evidence that UCSadministrators do not have authority over such issue.

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The Legislature has reserved to itselfthe power to regulate practice and procedure (see NYConst., art.VI, § 30). In fact, the Legislature has undertaken to exercise its reserved primary powerto alter and regulate jurisdiction, practice and procedure in the Courts, with regard to the issue ofrecusal, that is, Judiciary Law § 14 - "Disqualification of judge by reason of interest orconsanguinity." Additionally, the Legislature has set forth campaign contribution limitations withregard to allNew York State candidates and committees (see Election Law § 14-114[l][b]). Withregard to Supreme Court Justice candidates,the non-family limit is calculated at $0.05 x registeredvoters in candidate's district but at least $1,000, with a maximum of $50,000. For the thirteenjudicial districts, the non-family 2010 supreme court contribution limits range from $12,677.40 to$50,000.00 (see http://www.elections.state.ny.us/Contributions.html).

Judiciary Law § 14 and Election Law § 14-114[l][b] constitute the general practice andprocedure as provided by statute or general rules in New York.1 In this context, the UCSadministrators areacting outside their rule-making authority in adopting such a rule, which is not"consistentwith the general practice and procedure as provided by statute or general rules" (NYConst., Art. VI, § 30; see also People v Ramos, 85 NY2d 678, 688 [1995]). The authority of theChiefAdministrator with respect to policy formulation "is notbroad andunlimitedbut is subject tobeing exercised in conformity with standards which have been established in accordance withconstitutional prescription" (Matter ofMorgenthau v Cooke, 56 NY2d at 33, supra). Here, theproposedrule is wading deeply into the waters of policy formulation and far exceeds the routineoperation andadministration ofthe UnifiedCourt System ascontemplated by the StateConstitutionand the Judiciary Law.

Moreover, court administrators simply "cannot, undercover of procedure or to accomplishjustice in a particular case, invade recognized rights of person andproperty" (seePeoplev Ramos,85NY 67%[l995];quotingMcQuiganvDelaware,Lackawanna&S.R.R.Co.,\29*NY 50 [1891]).Neither the legislature nor any other body may limit, impair or circumscribe the constitutionalpowers ofthiscourt to hear anddetermine cases withinitsjurisdiction and assigned to it (see Peoplev Correa, 15 NY3d 213, supra; Pollicinia v Misericordia Hosp., 82 NY 332 [1992]; People vFernandez, 72 AD3d 303 [2d Dept 2010]). The proposed rule seeks to accomplish just such aresult.

As such, the proposed rule oversteps the bounds of the constitutional and statutory rulemaking authority of the Chief Administrator of the Courts and impinges on the Legislature'sreserved primary power to alter and regulate jurisdiction, practice and procedure under StateConstitution, Art. VI, § 30.

TheFlorida Supreme Courtrejected the premise ofa mandatory recusal based upon a campaign contribution limit,especially where (asunder the proposed rule) thethreshold for recusal was below thatof thestatutory limitation oncontributions. InMacKenzie vSuper Kids Bargain Store, Inc.,565 So.2d 1332, 1337 (FL 1990), the court foundthat thestatutory limitation on contributions reduced thepossibility of a "quid proquo arrangement between thecandidate and thecontributor andalso acts toeliminate any appearance of impropriety." Seealsoid. at 1335 ("Ourconclusion isbased upon the interplay ofourstate constitution, code ofjudicial conduct, and campaign statutes").

The empirical evidence demonstrating the need for such a rule in New York State is lacking.

Onewould expect that before implementation of such a dramatic change in the practiceandprocedure in New York courts, as offered by the proposed rule, overwhelming empirical evidencewould be available to support its unveiling. However, no such evidence exists that, in New YorkState, the current law pertaining to recusal or disqualification of a judge is ineffective.

On a motion for recusal, in the absence of one of the statutory basis for recusal set forth inJudiciary Law § 14, it is the trial court, in the exercise of"its personal conscience," who is the "solearbiter" ofa claim that recusal is warranted (BroderickvSherson Am. Express, Inc., 160 AD2d 42,643 [1st Dept 1990]; Iv to app den 76 NY2d 706 [1990]; People v Moreno, 70 NY2d 403 [1987]).It has also been recognized that the Code of Judicial Conduct mandates recusal when the judge's"impartiality might reasonably be questioned," for example, where "he has personal bias or prejudiceconcerning a party, or personal knowledge ofdisputed evidentiary facts concerning the proceeding"(Matter ofJohnson v Hornblass, 93 AD2d 732, 733 [1st Dept 1983]; Judicial Law § 14, Canon 3of the Code of Judicial Conduct).

However, absent a ground for disqualification under Judiciary Law § 14, "[t]his discretionarydecision is within the personal conscience of the court" (People vMoreno, 70 NY2d 403, supra)."Recusal, as a matter ofdue process, is required only where there exists a direct, personal, substantialor pecuniary interest in reaching a particular conclusion, or where a clash injudicial roles is seen toexist" (Matter ofKhan v Dolly, 39 AD3d 649, 650-651 [2d Dept 2007], citations omitted).

As stated in Ortiz v CityofNew York, 136 Misc2d 500, 502 (Sup. Ct, New York County,1987), "[t]he discretion left to each individual judge stems from the interest in the efficientadministration ofjustice. It is untenable to require judges to recuse themselves whenever even anunsupported allegation of bias is made. One would be hardpressed to find a judge that wouldcompletely satisfy all litigants and such a system would undoubtedly promote the undesirableproblem ofjudge shopping. Therefore, if a judge, surveying the circumstances, believes he is ableto preside impartially over the proceedings before him, he is able to do so."

Each judge must, when approaching the issue ofrecusal, afford careful consideration to §§100.2,100.3, and in particular, 100.3(E)(1) ofthe Rules ofthe ChiefAdministrator. Whenever thequestionofcampaign contributionshas been raisedbefore the NY Advisory Committeeon JudicialEthics, it has been repeatedly stressed that "the ban on personally soliciting or accepting campaigncontributions carries with it an implicit recognition that a candidateshould remain ignorantof whocontributed to his or her campaign" (NYAdvisory Committee on JudicialEthics,Op02-06). Morerecently, the Advisory Committee, once again, in Opinion 10-135, addressed the issue:

With respect to campaign contributions, a candidate forjudicial office is prohibited from personally soliciting or acceptingcampaign contributions (see 22 NYCRR 100.5[A][5]) and should beshielded from knowing the identityofcontributors (see Opinion 02-06)....

Similarly, the inquiring judge also need not disqualify

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him/herself solely because the attorneys appearing in the judge'scourt were contributors to the judge's campaign, particularly wherethe party seeking the judge's disqualification and recusal, by virtue ofincluding the names of the contributors in motion papers, may verywell have caused the judge to know the attorneys contributed tohis/her campaign.

A review ofthe recentreports issued fromnon-partisan public policy organizations2 revealsa reaction to the Supreme Court decisions in Caperton vA.T. Massey Coal Co., 129 S. Ct. 2252(2009) and Citizens United v Federal Election Commn., 130 S. Ct. 876 (2110) and the concerngenerated by campaign contributions inthevarious states thatelecttheirappellate-level judges. Yet,it is expressly acknowledged by the Fund for Modern Courts that "In New York State, whereappellate-level judges are appointed, theoverwhelming majority ofjudicial campaign contributionsfor trial court races are for amounts under $1,000."3

One ofthe fewdecisions involving campaign donations and arecusal motion was reportedin the New York Law Journal on March 1, 2007, wherein the Suffolk County Surrogate removedhimself from acase after amotion wasmade claiming that the donations made by a lawyer and hisfirm raised questions about the judge's impartiality (see 3/1/2007 NYLJ 1, [col. 5]). It should benoted thatthe donations weremadeduring the Surrogate's 2001 campaign and thatthemotion wasdecided in2007, sixyears after thedonations were made. Under such facts, theproposed rule wouldhave noapplication. Yet, the Surrogate, as the "sole arbiter" of such aclaim, exercised his "personalconscience," and found thatrecusal waswarranted. Robert H.Tembeckjian, the administratorofthestate Commissionon Judicial Conduct, was reported assaying that judges shouldmake individualdeterminations as to whether they can be fair when a party places campaign records before theminthe context ofa recusal motion (see 3/1/2007 NYLJ 1, [col. 5]).

As noted above, aside from speculation, supposition, and anecdotal evidence offered bypublic policy organizations that are reacting to events in other states which have a dissimilarexperience than thatinNew York, nocompelling evidence exists to support the contention that thecurrent law pertaining to the disqualification of ajudge is ineffective. Concededly, these publicpolicy organizations are committed to theelimination ofthe election ofjudges and the substitutionof a"merit" selection process to choose judges inall courts of record inNewYork. Anyproposalthat eliminates, to any degree, theindependence of the elected judiciary, brings these organizationsone step closer to their stated goal.

see Amelia T.R. Starret al.,The Fund for Modern Courts, A Heightened Recusal Standard for Elected New YorkJudges Presiding over Cases, Motions orOther Proceedings Involving Their Campaign Contributors 21-22 (2010);see also Adam Skaggs &Andrew Silver, Brennan Ctr. For Justice, Promoting Fair and Impartial Courts ThroughRecusal Reform (2011).

see Amelia T.R. Starr etal., supra, p 5. Remarkably, in the only empirical evidence offered, from an unpublishedMasters dissertation, it isnoted that "[i]n the contested Rockland and Westchester County Court elections, 2.8percent, 2.3 percent and 0.5 percent of donations to candidates were $1,000 or higher in2005, 2006 and 2007respectively." Id. at footnote 10.

On a personalnote, the oath which I take as ajudge is an individual one. I discharge a dutyimposeduponme, which cannotbe consummated justly by anautomatic acceptance ofthe views ofothers which have neither convinced, nor created, a reasonable doubt in my mind. I cannotsubordinate my convictionsto thatextent andkeep faithwith my oathorretain my judicialandmoralindependence.

Finally, appropriate administrative resources needed to implement the proposed rule arescarce and the rule is unworkable.

Inlightofthecurrent financial crisis facing the State budget,andin particular, the Judiciary'sbudget, one need not dwell too long on the notion that criticaladministrative resources will need tobediverted from the operations ofthe court to attempt tocarry outthe dictates ofthe proposed rule.The task of matching not only every attorney, but every plaintiff and defendant, to a judge'scampaign contributions, could easily become burdensome, if not overwhelming, for the courtpersonnel assigned that responsibility.

Whilethecompilation ofcampaign donors in excess ofthe$2,500 individual limitmaynotbeoverlyonerous, theapplication ofthemultiplier rule ofthe$3,500 collective amount, "bymultipleplaintiffs ordefendants, orby an attorney and hisorherlaw firm," to every case before assignmentto ajudge, is simply unreasonable. Incomplex commercial cases ormedical malpractice cases withnumerous defendants, even where individual donations are under the proposed limit, the higheramount maybe triggered, when donations of all parties and attorneys are considered collectively.Moreover, when civil cases are sent to a trial part from the Calendar Control Part, will not theexercise haveto be undertaken, onceagain, withthetrial judge? The administrative burden will beincreased as the mandatory recusal standard will require the frequent replacement of judges, eventhough many of them would have been able to remain unbiased.

Additionally, theproposed rule fails to provide for awaiver by the party who is not subjectto thecontribution threshold, thereby, onconsent, permitting thejudge to preside overthecase. Asnoted in the New York Law Journal article mentioned above, the administrator of the stateCommission onJudicial Conduct, Mr. Tembeckjian, stated, "Itistoo easy tomanipulate the processand forum shop by making recusal automatic." This failing was expressed in the March 15,2011letter of support submitted by the Brennan Center for Justice and Justice at Stake.

The proposed rule mayfoster unintended consequences. For instance, inthe matter reportedin the New York Law Journal article, where the recusal motion was made six years after thecampaign contributions, ifthe proposed rule was inplace, could the Surrogate reject themotion sincethe two year automatic recusal period had passed? Can recusal motions still be offered, based uponprior campaign contributions, once thetwo year period has expired and theclaimed taint from thecontribution has been dissipated? What happens when a case has been assigned to ajudge, whooversees discovery and motions, and then a new party is added to the case, which triggers theinvocation of the proposed rule? Does such reflect theappropriate useofjudicial resources?

If judges will not be assigned to any cases involving an individual attorney, plaintiff or

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defendant who has contributed $2,500 or more to the judges' campaigns within the previous twoyears, then what is the need for the continuation of the prohibition in 22 NYCRR 100.5(A)(5)concerning soliciting or accepting campaign contributions, particularly in light of the comment tothe press from the Chief Judge that such a view is "[n]ot really compatible with the society we livein today"?4

Theonlyworkable solution is that set forth in Opinion 04-106 from the Advisory Committeeon Judicial Ethics:

We are of the opinion that the judge's knowledge of a contributionhaving been made by an attorney does not, standing alone, mandatethe judge's disqualification. In and of itself, the judge's knowledgeof a contribution, does not automatically give rise to an inference ofpartiality. But this does not necessarily conclude the matter. For thefact that the judge now has this knowledge should lead the judge toconsider various factors that may be of significance in reaching aconclusion about recusal. For example, what is the size of thecontribution in relations to other contributions by attorneys? Was thecase in which the attorney appears pending before the judge at thetime the contribution was made? Is the appearance being madeduring the course of the campaign? Is the attorney's adversary alsolisted as a contributor? Did the judge have prior knowledge that theattorney was a supporter (e.g. having been listed as such or havingbeen in attendance at a fund-raiser) and therefore might likely havebeen thought to be a contributor in any event?

These are just some of the considerations that the judge might findappropriate to take into account in reaching a recusal decision.

Finally, public policy organizations that support the concept of mandatory recusal, believethat the burden ofdisclosing the relevant campaign contributions should be on the parties and theirlawyers, ratherthan the judge, or as proposed, courtclerks.5

For all of the reasons stated above, the proposed rule exceeds the rule-making authority ofthe ChiefAdministrator ofthe Courts, lacksjustification, is unworkable, and demonstrates unbridledjudicial activism. It is expected that public policy organizations that are committed to the

see 2/15/2011 NYLJ 1, (col. 5).

see Amelia T.R. Starr et al., supra, p 42.

elimination of the people's right to elect judges would propose such a rule; it is dishearteningthatUCS administratorswould wholeheartedly promote such anassault on the constitutionally conferredauthority of the judges they serve.

I am grateful for the opportunity to submit these comments. I respectfully request that theproposed rule be rejected.

Respectful! itted,

Thomas F. WheUan, JSC

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