Thursday, January 8, 2009

A Kafkaesque Maze

The New York State Commission on Judicial Conduct imposed public discipline (an admonition) on a city court judge who had sought support for a State Supreme Court run from a lawyer during a court proceeding. The commission found:

By soliciting support for her candidacy for Supreme Court from an attorney in her court, moments before the attorney was scheduled to appear before her with a client, respondent engaged in conduct that compromised her impartiality and independence and promoted her political interests in the courtroom.  Such behavior is inconsistent with the high ethical standards required of judges.


Respondent has acknowledged that she discussed her candidacy at the bench with attorney Eftihia Bourtis, whom she had telephoned earlier to ask for support.  (Respondent had left a message since the attorney was on vacation.)  Although respondent disputes that she called the attorney to the bench, respondent acknowledges that at the bench she stated that she had called about the campaign and she asked if Ms. Bourtis would support her.  Ms. Bourtis, who testified that the request made her “uncomfortable,” agreed to support respondent and to allow the campaign to use her name.  As Ms. Bourtis testified, under the circumstances “I felt that I had to say yes.”

A dissenting opinion characterizes the rules governing campaign contributions as a "Kafkaesque maze" and would impose private discipline:

Common understanding should dictate that it is improper to solicit support from the bench (just as it should be clear that judges should not have contributors appear before them).  But judges are allowed to solicit “support” virtually anywhere from lawyers who have cases pending before the court.  In this case, Judge Yacknin acknowledged during the investigation that she personally contacted 100-130 attorneys to  solicit their support, and the Commission staff made no argument that such conduct was anything other than business as usual.  As clear as it is that solicitation from the bench is improper, especially when a client is sitting in the courtroom, I fail to see a meaningful distinction between such solicitation and repeated and insistent calls for campaign support from judges to individual lawyers who regularly appear before the judge.  In either case coercion, and the whiff of bribery, are palpable.  In light of this overall scheme that allows lawyers to finance judicial campaigns, it seems otherworldly to punish Judge Yacknin for her particular transgression.

The entire system of regulating judicial campaigns is riddled with hypocrisy.  It reduces judges to supplicants of the lawyers and clients who should hold them in high esteem.  Expressing ad hoc outrage when one judge happens to come to our attention for her obtuse behavior feels like fiddling while Rome burns.  We really deserve better and the independence of our judiciary demands much more.

I refuse to make Judge Yacknin a posterperson for judicial campaign misconduct even though, as she forthrightly acknowledges, she clearly should not have done what she did.  Therefore, I dissent and recommend that she be given a private caution. 

(Mike Frisch)

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