The New York Law Journal by Joel Stashenko - December 29, 2009
ALBANY, NY - A western New York judge should be censured for trying to organize other judges to recuse themselves from cases involving the law firms of state legislators, who have denied the judiciary a pay raise since 1999, the Commission on Judicial Conduct said today. Cattaraugus County Judge Larry M. Himelein, one of the most vocal critics from the bench of the long pay drought for judges entered into the stipulated agreement with the commission on the censure. The panel voted 9-0 to accept the settlement. Judge Himelein disqualified himself from 11 cases involving legislators or firms employing state lawmakers in a 10-month period beginning in September 2007, according to the commission. In e-mails to his colleagues, the judge acknowledged that he did so as a "weapon" in an attempt to compel the Legislature to grant the judiciary a pay increase. "His stated aim ... was inconsistent with a judge's obligation to refrain from conduct that interfered with the proper performance of judicial duties, to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law," the commission's ruling concluded.
Judge Himelein recused himself in matters involving Hiscock & Barclay, whose staff attorneys include Senator Neil Breslin, D-Albany, and Assemblyman Will Barclay, R-Pulaski, and also Harris Beach. The commission's ruling said Judge Himelein aggravated his conduct by writing a series of electronic mails to other state judges in which he belittled Assembly Speaker Sheldon Speaker, D-Manhattan, as a "slug" and state legislators in general as "clowns" and mocked other judges who declined to recuse themselves and join in a boycott of cases involving firms employing lawmakers. "Chiding, browbeating and insulting judges who did not recuse (calling them 'wusses,' 'non-self-respecting,' 'gutless,' and 'wimp[s]'), denigrating downstate judges in particular ('lackies' and 'toadies for the politicians') and telling them to 'grow some stones,' respondent repeatedly urged his judicial colleagues to recuse en masse ('How about everyone recuses by 5:00 today???')" the commission's ruling recounted. Judge Himelein argued in letters he sent to Hiscock & Barclay and other firms that he would recuse himself in matters involving their cases because he considered himself conflicted by the pay raise dispute and the contribution he had made to the legal defense of one of the three cases in which the judiciary is suing the Legislature and the governor to force a court-ordered pay increase. Court administrators warned judges that to recuse themselves from cases involving legislator-lawyers based solely on judges' indignation over the lack of a pay raise was in violation of judicial canons and subjected judges to potential sanctions (NYLJ, May 13, 2008). Judge Himelein, a former district attorney, also hears cases on Family Court, Surrogate's Court and state Supreme Court benches in rural Cattaraugus County. Joel Stashenko can be reached at firstname.lastname@example.org.
Judge receives censure for improper recusals
Judicial panel says Himelein turned down cases as tactic in pay-raise battle
The Albany Times Union - Capitol bureau - December 28, 2009
ALBANY, NY -- The state Commission on Judicial Conduct has determined that Larry Himelein, a Cattaraugus County Judge, should be censured for improperly disqualifying himself from 11 cases involving state legislators. The panel determined that Himelein took those actions as a tactic in his campaign to turn the heat up on the issue of judicial pay raises. As noted in the press release accompanying the commission's determination, "Judge Himelein's actions were aggravated by the fact that he sent out numerous mass e-mail messages to other judges strongly encouraging them to join him in mass disqualification as a tactic in the pay-raise dispute and denigrating judges who refused to do so. He also made inappropriate public comments about legislators and, in particular, a party to the pay-raise litigation, Assembly Speaker Sheldon Silver, whom he called a 'slug.'" Judges haven't received a raise in more than a decade -- a failure that led the state's former Chief Judge, Judith Kaye, to sue state leaders in 2008. Himelein made his feelings abundantly clear in a series of blast e-mails he sent out to fellow judges, including one 2007 missive in which he referred to his assumption that the state judiciary would "get boned by the legislature again." The judge had a special dispute with Speaker Silver's firm. "How can any self-respecting judge even consider sitting on a case with a legislator in a firm?," Himelein wrote in another 2007 e-mail blast. "When Shelly's firm can't get a divorce heard or will probated or a trial date, see if that doesn't spur some action. And maybe some of his contributors could ask for their money back ..." "The state's judiciary has been without a pay raise for more than ten years," said the commission's Administrator, Robert H. Tembeckjian. "The commission itself has publicly declared that such raises are well-deserved and long overdue. Honest advocacy for judicial raises is entirely appropriate. It is unacceptable, however, to bring the controversy into an individual courtroom and penalize individual legislators and their clients as a 'tactic' or 'weapon' in the pay-raise dispute."