NY Judges Get Commission Warning

Recusals Could Lead to Discipline, Conduct Commission Forewarns
Also Backs Efforts To Win Raise for Judges
The New York Law Journal by Daniel Wise - May 13, 2008

The Commission on Judicial Conduct yesterday warned the state's 1,300 judges that using recusals to protest legislative inaction on a pay raise could result in disciplinary action. The commission's statement cited 10 different sections of the Rules Governing Judicial Conduct that could be implicated when judges refuse to handle cases where parties are represented by lawmakers or their law firms. The warning was issued despite what the commission called "the judiciary's understandable disappointment at the continuing compensation impasse."

The agency also endorsed a pay raise for the judges as "well deserved and long overdue." The statement was adopted by the commission at its monthly meeting last week. The warning reinforced a similar caution issued earlier this month by Chief Judge Judith S. Kaye (NYLJ, May 2). Although opinions by the court system's Advisory Committee on Judicial Ethics allow judges to recuse themselves as a matter of "individual conscience," Chief Judge Kaye in an e-mail to all state judges cautioned that use of recusals as a "strategy" could "hurt our cause." In warning the judges of the potential ethical repercussion of recusals, the judicial conduct commission noted that it was acting in the wake of "recent published reports that at least some judges are encouraging or engaging in acts of recusal" out of a purported "frustration over the compensation issue." Within the last two weeks, news reports have said at least seven judges either have recused themselves or openly mused about it. They sit in counties as diverse as Nassau, Orange, Cattaraugus and Erie.

In addition, Steven Schlesinger, the managing partner of Long Island-based Jaspan Schlesinger Hoffman, which has two legislators as members, said yesterday that about 25 judges had refused to handle the firm's cases and that the number has grown in the last two weeks. In its statement, the conduct commission noted that it would not benefit the judges' "justifiable interest" in a pay raise for "the Commission to be constrained to consider complaints against judges" alleging violations of the 10 cited conduct code provisions or others. Robert H. Tembeckjian, the commission's counsel and administrator, declined to comment on whether the agency has received any complaints or is itself examining the recusals. The commission, however, called on "all parties with a role to play" to do so "responsibly, professionally and with the utmost sensitivity to promoting public confidence in the independence, integrity and impartiality of the judiciary."

Independence Stressed

In backing a pay raise, the commission also stressed the need to preserve the independence of the judiciary. It warned that without "fair compensation," the ability to maintain a bench of talented and honorable men and women," a critical element of the democratic system of checks and balances, may come under "acute" strain. The claim that the toll taken by inflation on judicial salaries, which have not been raised since January 1999, has compromised judicial independence, is central to three pay raise lawsuits, including one brought by Chief Judge Kaye on behalf of the court system. The lawsuits also contend that judicial independence has been compromised by the tying of judicial raises to extraneous issues such as raises for lawmakers, who also have not had a raise since 1999.

The commission expressly noted in its statement calling for enactment of "an appropriate judicial compensation measure" that it was doing so "without comment on the merits" of the pending lawsuits. Chief Judge Kaye's lawsuit seeks an order raising the salary of Supreme Court justices from $136,700 to the $169,300 now being earned by federal District Court judges, with the salaries of judges from other state courts to be adjusted proportionately.

Code Provisions Cited

Among the conduct code provision that could be implicated in a recusal, the commission noted, were those requiring judges not to "use the prestige of judicial office to advance a private interest, Rules §100.1, and barring any "pledges or promises" inconsistent with the impartial performance of their duties, Rules §100.3(B)(9)(a,b).

Two recent opinions by the ethics advisory committee concerning questions related to recusals when dealing with legislators' firms expressly mentioned that judges must recuse themselves when they are convinced they can not be fair (Opinion 08-76 [April 24, 2008] and Opinion 07-190 [Dec. 6, 2007]). In Opinion 08-76, however, the advisory committee concluded that Chief Judge Kaye's filing a lawsuit in her official capacity on behalf of the court system did not require judges to recuse themselves from cases involving lawmakers. To the contrary, the committee concluded judges must hear those cases if they believe they can be fair. In an earlier opinion, the advisory committee concluded that judges should not recuse themselves solely because of the "long standing issue of judicial salary increases pending before the Legislature" (Opinion 07-25, Feb. 22, 2007).

Act of Conscience Asserted

Cattaraugus County Judge Larry M. Himelein (See Profile), who was widely quoted as saying he has recused himself from cases involving Weitz & Luxemburg, a firm with which Assembly Speaker Sheldon Silver, D-Manhattan, is affiliated, said in an interview yesterday he had acted "absolutely" as a matter of individual conscience. Since "I recused myself from a case where I owned 100 shares of stock in one of the parties," he said, "how could there not be a conflict if I were to sit upon a case involving a firm of one of the lawyers who sets my salary?" Judge Himelein serves as Cattaraugus County's judge for County, Family and Surrogate's courts. With respect to his widely published quote calling Mr. Silver "a slug," Judge Himelein said the statement was not made directly to a reporter but in an e-mail to other judges that had been leaked to the press. Sullivan County Court Judge Frank J. LaBuda (See Profile) had been reported to be considering recusing himself because of the chief judge's lawsuit prior to the advisory committee's issuing its opinion that recusal was not mandated.

Since that opinion was issued on April 24, Judge LaBuda has decided to handle cases involving the law firms of legislators, according to his law clerk, John Diuguid. Mr. Diuguid, however, said Judge LaBuda, who sits in County and Surrogate's courts, could not be reached yesterday. Mr. Diuguid also said he was unaware of the reason Judge LaBuda had against recusal. David Bookstaver, a spokesman for Chief Administrative Judge Ann Pfau (See Profile), said it would be inappropriate for her to comment on the conduct commission's statement. — Daniel Wise can be reached at dwise@alm.com.