Legal Commentary

Judge Sanctioned for Trying to Improperly Pressure Legislators Who Declined to Push for Judicial Pay Raises

By Eugene Volokh

From In re Himelein (N.Y. Comm?n on Jud. Conduct Dec. 17, 2009):

Over a ten-month period beginning in September 2007, respondent [Judge Larry M. Himelein] disqualified himself from eleven cases involving legislators or members of their law firms as a ?weapon? in an attempt to force a pay raise by creating economic hardship for legislators and their firms. The record is clear that respondent?s recusals were unrelated to whether he could be impartial -? indeed, in an e-mail message to other judges, he bluntly acknowledged, ?It has nothing to do with whether I could be impartial.? Rather, respondent viewed recusal as a tactic to put pressure on legislators to enact a judicial pay raise. Recusal would (he hoped) create difficulties for the legislators within their firms, cause their clients to discharge them, and cause the legislators to suffer financially. [?When [a particular legislator?]s firm can?t get a divorce heard or will probated or a trial date, see if that doesn?t spur some action,? the judge wrote in one e-mail. ?EV] He reiterated this theme in numerous e-mail messages to other judges (e.g., ?[Recusal] will always be the only weapon we have?; it ?is the only weapon we have that has any likelihood of making some of those clowns suffer for their actions?)....

Section 100.3 of the Rules provides that ?the judicial duties of a judge,? which include ?all the duties of a judicial office prescribed by law,? ?take precedence over all the judge?s other activities.? ... There is clearly no justification for refusing to discharge one?s judicial duties for a retaliatory purpose or as a tactic to achieve a pecuniary or political aim.

Respondent?s behavior is aggravated by his wide dissemination of e-mail messages encouraging other judges to join him in recusing from the cases of legislators? law firms as a litigation tactic. His messages made plain that the purpose for recusing was to ?spur some action? (?We either take serious action or we will forever be in the same position we are today?). 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????). Referring to Assembly Speaker Sheldon Silver as a ?slug,? he also told his judicial colleagues that if Silver?s firm could not get its cases heard because of mass recusals, that would ?spur some action? on the pay raise issue, and that once a pay raise was enacted, the need for such disqualifications would end. By encouraging other judges to abrogate their professional duty by engaging in conduct that was patently improper, respondent compounded his misconduct....

The message respondent conveyed ? widely and repeatedly ? was highly prejudicial to the proper administration of justice. His stated aim ? to deprive lawyer-legislators of their livelihood and to deprive their clients of access to the courts until judges received a pay raise ? 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.

In its totality, respondent?s conduct reflected adversely on the judiciary as a whole. Accordingly, we accept the stipulated sanction of censure.

Quite outrageous conduct on the judge?s part, it seems to me. Thanks to How Appealing for the pointer; here?s the New York Times article on the subject.

Full post as published by The Volokh Conspiracy on December 31, 2009 (boomark / email).