Judicial Legitimacy Overcomes the First Amendment: Kraham V. Lippman

By Curry, Todd A. | Justice System Journal, May 1, 2008 | Go to article overview

Judicial Legitimacy Overcomes the First Amendment: Kraham V. Lippman


Curry, Todd A., Justice System Journal


Are regulations meant to protect the public perception of judicial legitimacy justified even when they may restrict an individual's First Amendment rights of political association? That question was the core issue in Kraham v. Uppman, 478 F.3d 502 (2nd Cir. 2007), a Federal Court of Appeals for the second Circuit case stemming from a New York rule on appointment of fiduciaries wherein the court held that the prohibition of party leaders and their law firms from receiving fiduciary appointments did not violate the First Amendment. While the Kraham Court never uses the term judicial legitimacy, its continued discussion of needing to improve the "public confidence in the judicial system" (at 506) clearly identifies this concept as the key issue in this case. In answering the question above, the Court in Kraham chose to side with judicial legitimacy at the expense of the First Amendment.

The term fiduciary, which arises from the Latin word fiduci, meaning "trust," has come to describe a relationship in which an individual has the legal authority to act for or on the behalf of another individual. The state courts in New York have a rich history of appointing persons as fiduciaries to serve on the behalf of persons in a number of different circumstances, including as a guardian for an incapacitated individual, receivers in foreclosure proceedings, and as guardians ad !item for those not able to protect themselves. Fiduciaries are generally not paid by the government, but instead they are paid by the parties to the proceeding, often a decedent's estate, and as a result the compensation can be quite considerable.

New York judges have often been accused of appointing fiduciaries based on cronyism instead of merit. As early as the nineteenth century, public confidence in the judiciary waned as a result of fiduciary appointments that were perceived to be based on familial relationships or political-party connections. For instance, Albert Cardozo, father of famed New York Court of Appeals judge and Supreme Court justice Benjamin Cardozo, resigned his seat on the New York Supreme Court in Manhattan in disgrace because of his history of questionable fiduciary appointments (Kaufman, 1998). Consequently, New York has attempted to regulate fiduciary appointments. For example, in 1986 the first version of Rule 36 of the Rules of the Chief Judge went into effect. This rule provided that relatives of judges in the New York court system were ineligible for fiduciary appointments (Marks, 2003).

While prohibiting certain types of questionable appointments, the initial version of Rule 36 did not resolve the question of appointments based on partisan ties. This changed after public confidence of the judicial system of New York was called into question when two politically connected Brooklyn attorneys drafted a letter to top Democratic Party officials, claiming that despite their years of service to the party they were no longer being assigned fiduciary positions. The plain implication of the letter, which became public, was that these two men had an expectation of being assigned fiduciary appointments due to their political activity. As a direct result of the public outcry from this scandal, Chief Judge Kaye of the New York Court of Appeals, in agreement with the Administrative Board of the Courts and by approval of the New York Court of Appeals, amended Rule 36 in 2003. section 36.2(c)(4)(i) provides:

No person who is the chair or executive director, or their equivalent, of a State or country political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.

The amended Rule 36 became an issue in Kraham. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Judicial Legitimacy Overcomes the First Amendment: Kraham V. Lippman
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.