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March 28, 2011

Proposed Rule in New York State Will Mandate Recusal When an Attorney or Law Firm Contributes Certain Amounts to a Judge's Campaign

Seeking to instill greater public confidence in the judiciary, the Administrative Board of the Courts has adopted a state policy that would mandate a judge's recusal when an attorney or law firm appearing before him or her has contributed a threshold amount to the judge's campaign. New York state judges currently have an ethical duty to remain unaware of those who donate to their political campaigns, a duty that has become increasingly difficult to fulfill in the digital age, when campaign contributions are posted on the New York Board of Elections' website, discussed in the media, and available in other public forums. Many believe that concerns over contributions to judicial campaigns have contributed to a decline in public confidence in the judiciary.

New York's proposed rule addresses this issue by requiring recusal when a party or lawyer has contributed $2,500 or more individually (or a law firm or other group contributes $3,500 or more) to a judge's political campaign in the preceding two years. In an attempt to ensure objectivity, all disqualification decisions will be made by neutral court administrators.

The proposed rule responds to the directive in the U.S. Supreme Court's decision in Caperton v. Massey Coal, 129 U.S. 2252 (2009), which held that the Due Process Clause required a West Virginia Supreme Court justice to recuse himself from an appeal involving a large campaign contributor. Writing for the majority, Justice Kennedy called the appearance of a conflict of interest so "extreme" that the justice's failure to recuse himself constituted a threat to the plaintiff's Constitutional right to due process under the Fourteenth Amendment. The Court concluded that "there is a serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."

While many states have adopted new recusal rules post Caperton, New York's draft recusal rule is believed to be the most restrictive in terms of whether judges have any discretion in deciding whether disqualification is necessary.

The rule is open for public comment until April 29, 2011.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.


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