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. …