Judicial candidates have been out for months, campaigning for seats on court benches.
There are billboards, yard signs and other advertisements, all forms of campaigning that cost money.
But where does the campaign end and the judging begin? Does campaign money influence how justices do their job once elected? Some court watchers wonder if campaign money at the least gives the appearance of influence. That can impact the public’s perception of how courts are run, they say.
Locally, races are being run for state Supreme Court, the court that hears lawsuits and other similar cases.
In the 4th Judicial District, which includes Schenectady and Montgomery counties and north to Canada, a total of eight candidates are shaking hands and getting their names out to voters, vying for four seats.
In the 3rd Judicial District, which includes Schoharie and Albany counties, five candidates are running for two seats.
All are either attorneys or already judges, running to win full 14-year terms.
But how they get those terms has come under scrutiny in recent years. Last year, in June 2011, the state court system announced new rules to keep cases from being heard by judges where participants have contributed to campaigns.
This is the first full election cycle where the rule is in effect. It took effect July 15, 2011, in the middle of last year’s races.
The Fund for Modern Courts, a group founded in 1955 to improve courts in the state, called the 2011 rule an important one, one that they had advocated for.
“We’re very happy to see that rule in place,” said group executive director Dennis R. Hawkins. “It certainly does not prevent [the perception], but a person who is looking to spend a lot of money in a judicial race now knows that they will not get their case assigned to that particular judge. That’s a big advancement.”
Modern Courts, though, wants to go further. The group prefers a merit-based system of commission recommendations and appointments in place of elections, a system based more on a candidate’s background and one that eliminates fundraising from the process.
The fundraising is a key problem, Hawkins said, as, regardless of the new rule, the money is still there.
“That raises questions oftentimes in the public’s mind of who are the contributors? When a judge receives contributions from people, largely lawyers, are they biased?” Hawkins said.
“Modern Courts doesn’t believe that is true. We think that the judges that are elected, many of them are outstanding,” Hawkins added. “However, the public’s perception may be if someone gives a judge $10,000, there may be a benefit to the particular giver.”
The detail of the new fundraising rules are relatively simple.
As of July 15, 2011, judges can no longer hear cases where an individual attorney, law firm or party contributed $2,500 or more to their campaign.
Also, no case where attorneys, firms or clients have collectively contributed more than $3,500 or more to the judge’s campaign can be heard by that judge.
A mechanism was also put in place to monitor the contributions and identify the cases for the judge.
One of the long-held particular rules for New York judicial races is that judges aren’t even supposed to know who is contributing to their campaigns. Modern Courts, though, has argued it is difficult for them not to know.
The mechanism also takes the burden off judges from having to recuse themselves, a Catch 22 when they’re not supposed to know about the contributions in the first place.
In announcing the rule, the state court system cited a growing concern among many involved in the courts over the increasing impact of money on judicial elections.
They cite a U.S. Supreme Court case from West Virginia, where the high court ruled a judge who had received large contributions from a coal company should have recused himself from a case involving executives from that company.
Officials quoted the high court as saying such big contributions create “a serious risk of actual bias.”
In a statement issued when the rule was announced, Chief Judge Jonathan Lippman said it would help address that appearance of conflict.
“This rule promotes public confidence in the independence, fairness and impartiality of the Judiciary,” Lippman said in the statement. “It makes New York a leader in national efforts to address head-on the issue of monetary contributions to judicial campaigns.”
Fourth Judicial Administrative Judge Vito Caruso cited the rule last week when asked about judicial campaigns.
He noted there has long been a wall between donations and the candidate. The donations have to go to the campaign, not to the candidate himself.
While the candidate isn’t supposed to know, somebody does and it goes into a record at the board of elections, he said.
An administrator and staff then review those contributions across the state at all levels of judgeships, he said.
Those records are then cross-referenced with new case assignments.
The $2,500 threshold itself, Caruso suggested, isn’t even a solid one.
“Even below that, though, if we know about it, we’ll probably steer it away from that person, so that you get rid of even the appearance of a conflict.”
“It was something that obviously everyone was concerned about,” he added later.
Apart from the 2011 rule, there is still room for improvement, observers said.
Helga Schroeter, who is on the justice committee of the League of Women Voters of Schenectady County and is also on the board for Modern Court’s lobbying arm, the Committee for Modern Courts, said they take issue with the parties being involved.
In Supreme Court races, judicial candidates are selected through judicial nominating conventions with elected delegates throughout the district. In county-level races, open primaries are held.
“We often end up having very good judges. That’s amazing, basically,” Schroeter said. “But the process is not ideal.”
Hawkins, with the Fund for Modern Courts, argued that the conventions can simply nominate candidates selected by party officials. They can sometimes be party faithful.
Schroeter also argued that the amount of information available to voters is limited. Judges are limited to what they can say. They definitely can’t say how they will rule on issues.
“People, even when they get to vote on them, really don’t quite know what to base their choice on,” Schroeter said.
The Court of Appeals, the state’s highest court, is one of the best examples of how a judicial selection process can work well, she said.
The justices on the state high court are appointed by the governor from a list recommended by a bi-partisan Commission on Judicial Nomination. The governor must chose from the candidates from the list.
Court of Appeals justices were once elected, as well. However, changes in the state constitution in the 1970s made them appointed. To change the way the lower court justices are selected, a similar change in the constitution would have to be made.
Regarding qualifications, county level and higher judges generally have to have been an attorney for 10 years or more. There is no requirement to have been a judge, though.
Hawkins, with the Fund for Modern Courts, said the group doesn’t have a problem with attorneys jumping directly to the bench. “There are just so many outstanding lawyers in the state,” he said, “as long as they have experience appearing in court, they are certainly good candidates for the bench.”
But the group would prefer a system similar to that of the Court of Appeals, removing the campaigning entirely, Hawkins said.
Caruso, though, while noting that he himself is a product of the current system, said he believes it works well.
“It’s not that either system maybe is better than the other,” Caruso said, “but each system has its own place in our system, the court system, and it seems to be working fine.”