The U.S. Supreme Court recently heard arguments in Caperton v. Massey, a case involving the refusal of a justice of the West Virginia Supreme Court of Appeals to disqualify himself from the appeal of a $50 million jury verdict in a case where the CEO of the lead defendant spent $3 million supporting the judge’s election campaign. Once elected, that justice cast the deciding vote in favor of the CEO’s company and overturned the jury verdict. We at Modern Courts submitted an amicus curiae brief in the case, arguing that the justice’s failure to disqualify himself violated the due process clause of the Fourteenth Amendment.

New Yorkers have been shielded from much of the growing controversy about fundraising in judicial elections as a result of a constitutional amendment and subsequent legislation passed in the late 1970s mandating gubernatorial appointment of judges to the New York State Court of Appeals, after a full review of the candidates by an independent, representative qualification commission, where only those found most qualified are recommended. Thus we have been able to avoid on a statewide basis the specter of obscene fundraising and political manipulation that has haunted so many other states. Our system brought us Chief Judge Judith S. Kaye, and her highly respected successor, the new chief judge, Jonathan Lippman, and the other distinguished judges who now serve on that bench (as well as their outstanding predecessors).

But it is not enough only to provide for a commission-based appointive system for the selection of judges of our highest court. We need to end judicial elections now for all our courts, get the money and politics out of judicial selection in all courts, or at a bare minimum provide for public financing of judicial elections. The problems caused by the need to raise a vast amount of money to mount judicial election campaigns have now become evident in New York’s trial courts.

Last month, the Commission on Judicial Conduct recommended that an elected Supreme Court justice and his brother, an elected Bronx Civil Court judge, be removed from office for deceptive financial dealings that began in August 2003, when one of the two accepted a $250,000 loan from a political backer for his campaign for Westchester County Court judge. In an effort to disguise the contribution, which would have been a violation of the campaign contribution limits under the Election Law if not repaid by Election Day, the judge personally assumed the campaign debt and failed to repay the loan until litigation and the commission’s investigation commenced.

Earlier this year, the judicial conduct commission admonished a Rochester City Court judge for soliciting campaign support from an attorney for her campaign for Supreme Court, raising once again the question of whether it is appropriate to elect judges in New York state. The solicitation was made right from the bench, moments before the judge presided over a case involving the attorney’s client.

In 2004, Chief Judge Kaye’s Commission to Promote Public Confidence in Judicial Elections found that 94 percent of voters believe campaign contributions have a little, some or a great deal of influence on the way judges decide court cases; 45 percent of the New York judges polled thought that campaign contributions influence judicial decisions to some degree.

Is it any wonder that the public questions the independence of elected judges when, for example, a Manhattan surrogate, who was elected in November 2008, was indicted before she could take office on charges that she falsely reported giving $250,000 of her own money to her campaign, when prosecutors say money came from the trust and estates lawyer who employed her for the last several years?

Almost $900,000 was raised by the three candidates running in the September primary for the Democratic nomination for surrogate in Manhattan. And the results roughly followed the size of the candidates’ campaign expenditures. It appears that the late infusion of campaign cash from a questionable source put the winner over the top in that election. And now the Court of Appeals has suspended the surrogate before she served for even a single day.

The need to raise money for judicial elections sends a troubling message to the public – “money talks.” We urge the Legislature and the governor to work together to adopt the reforms necessary to ensure an independent, fair, and diverse judiciary throughout all New York state.

Victor A. Kovner
is the chair of the Fund and Committee for Modern Courts.