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Feb 17 2011

It May Now Be Legal to Judge-Shop in NY!

There are judges and there are judges. The only folks involved in litigation who don’t seem to know that there are bad judges that everyone tries to avoid are the bad judges themselves.  But avoiding His Honor the Horrible now may be as simple as cutting a check for $2,500.00.  In an effort to make judicial elections cleaner, NY’s  top judge Jonathan Lippman enacted a rule that a judge must step down from a case if a lawyer involved in the case donated $2,500 or more to the judge’s campaign. This is one of those issues where a crafty lawyer can find an unintended consequence of a law and there are lots of crafty lawyers out there.

Phot of Judge Jonathan Lippman Courtesy of NY Times

Because one of the things Judge Lippman seemed to fail to consider is that now if I have a hardheaded judge that hates me or is overly  harsh to my clients or is bad on issues that I face on a regular basis, all I have to do to get him off my back is cut him a $2,500 check.  Trust me, that could be the best investment a lawyer or his client could do in many circumstances.

Judge-Shopping in Reverse

Now I know I will probably hear it about this post from those who say I am cynical or devious or that I represent all that is bad about lawyers, etc etc.  Spare me, I have already heard it.  But until you have been in front of somebody who has power over your client and you and wields it with personal vengeance and a lack of care of the law, you will not understand how terrible it is to be in front of a judge that is that dreaded combination of ignorant and arrogant. Or how great it feels to be before a judge who has perspective and an understanding of the law and of what it is to practice law privately.  And you see I think that is part of the problem. When Judge Lippman was appointed as Chief Judge of the Court of Appeals (NY’s highest court) I lamented on this blog that he had never tried a case in his life -neither as a lawyer nor even as a judge; he was always a court administrator. I was concerned that his lack of real-life experience in a courtroom and standing next to a client could come back to haunt us all.  In fact, it has not up until now and he has done an excellent job in my opinion.  But with this idea, I think he should have ran it by some litigators who would have seen the opening for abuse  that this regulation creates.

Here is a simple example.  In the Nassau County Court there are approximately 10 judges who handle criminal matters.  Let’s assume for the purpose of this analysis, that I would rather not appear in front of 6 of the 4.   (Remember this is merely an exercise, in reality I love them all equally and am privileged and proud to stand before them on any case).  So for a mere $15,000.00 in contributions I would NEVER HAVE TO SEE THEM AGAIN! Sweet! Now how about in certain jurisdictions where there are only 3 or 4 judges who do landlord/tenant  or matrimonial or criminal and a lawyer likes only one of them.  A donation of $7,500  guarantees all of that lawyer’s cases get assigned to the one judge they like the most.  Sweeter still!

Judicial Elections Are Usually a Farce Anyway – So Get Rid of Them

There is an  easy fix to this problem – do away with the sham of judicial elections. In all the NYC boroughs getting the nomination is the whole race.  Certain parties control certain boroughs and all you have to do is get involved in your local political machine and start donating cash. Then when its your turn for a judgeship you let your leader know that you want to run and are willing to “finance your entire campaign”  Meaning cut a check to the party committee (the amount varies in each borough and for each court) since most of the judicial elections in NYC are UNOPPOSED and there is no “campaign.”  So the election of judges in NYC is merely a graft and patronage mill.

In Nassau and Suffolk, where the outcomes of  judicial elections are not pre-determined, the election process is still a farce 90% of the time. Judges cannot campaign like other politicians.  They are specifically prohibited from saying negative things about their opponents and all they can do is list their credentials and put up some nice posters of hem with their family and dog.  So its not a real election. People have no idea who they should vote for and vote along party lines.  Nassau County used to have precisely one democratic judge in the District Court in the whole county until the electorate got tired of the Republican Machine and swept out the County Executive and many Republican judges. The judicial elections in Nassau also hinge on a candidate getting fringe party support from either the Conservative Party or even worse the “Independence Party”, a party whose has many members that don’t even know they belong to the party. These geniuses checked “Independence” thinking they were checking “Independent” under party designation. There is nothing funnier than going around trying to get signatures for Independence Party  candidates and having to convince the folks that they in fact registered for a political party and were not declaring their Independence.  Yet, this sham of a party actually has controlled the result of many judicial elections in Nassau County.  In Suffolk County, many judges are crossed-endorsed by the two main parties, so the voters have no choice. What are we trying to preserve by having elected judges? Nothing of value I assure you.

Conclusion

Its time NY sets up a series of blue-ribbon bipartisan panels that selects judges based on merit and experience. That would also end this $2,500 dilemma. It can be done.  Judicial selection can be taken out of politics and be the foundation for a justice system in NY based on merit and not on party loyalty.  Many judges,  in fact I can say that most judges, are competent, professional and try very diligently to do the right thing. Yet too many party hacks without any relevant legal experience still find their way onto the bench (particularly in NYC)  and are permanently damaging people’s lives.  Maybe the ramifications of Judge Lippman’s good idea will be the start of a discussion about achieving this overdue result.  Until then, looks like I may have to increase my budget for this year’s political contributions.  Hey, I’m just saying I’m  feeling particularly patriotic this year !

2 comments

  1. Charles Holster

    I just came across your article while looking for the results of the 2011 judicial elecions, to see if a particular judge (one of the really good ones) was re-elected. Your article is very interesting and I think it will compel further consideration of Judge Lippman’s well intentioned rule. The sentences that resonated most deeply with me were these: “But until you have been in front of somebody who has power over your client and you and wields it with personal vengeance and a lack of care of the law, you will not understand how terrible it is to be in front of a judge that is that dreaded combination of ignorant and arrogant. * * * [T]oo many party hacks without any relevant legal experience still find their way onto the bench (particularly in NYC) and are permanently damaging people’s lives.” As an attorney who concentrates on appeals, I stand to benefit from such thoughless decisions by trial court judges, because they may lead the litigants to seek my services. But it is deplorable that litigants are put through the expense, delay and misery of an appeal, because a judge was too lazy to read the motion papers upon which his decision was purportedly based. As you point out, such thoughtless (or vindictive) decisions can permanently damage people’s lives. The judges who make them are unfortunately oblivious to these real world consequences or sociopathologically detached therefrom. I fear that the “Blue Ribbon” panel you suggest, because of the great power that it would wield to select judges, would inevitably become the subject of political influence of one kind or another. It is a very complex issue. Just like tenure for an educatoir can lead to laziness and poor performance, I think that this also happens to Supreme Court and federal judges who are elected or appointed to long terms. They no longer feel accountable to the public. If terms were shorter, a bad judge could bne voted out sooner. Even under the current sysytem where the two major parties select the judges, as opposed to the general public, if the Party who elected the Judge in question gets a lot of bad feedback about a judge, it will not want to run him again. In my opinion, 6 years is too long to wait to remove a Supreme Court judge whose performance is dreadful.

  2. Oscar Michelen

    Charles – Thanks for your thoughtful comments. The term for a supreme court justice is 14 years! I agree that a panel could lead to political influence, but there is a slim hope that it could be done right

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