A judge has accepted censure for trying to organize other judges into a boycott of cases involving the law firms of state legislators who have denied New York's judiciary a pay raise since 1999, the Commission on Judicial Conduct said Monday.
Cattaraugus County Judge Larry M. Himelein, one of the most vocal critics from the bench of the long pay drought, entered into the stipulated agreement with the commission. The panel voted 9-0 to approve the settlement.
Himelein disqualified himself from 11 cases involving legislators or firms employing lawmakers in a 10-month period beginning in September 2007, according to the commission.
Toward the end of that period, the Commission on Judicial Conduct warned judges that recusal in such cases based solely on judges' frustration with the continuing pay impasse in the Legislature is a violation of judicial canons and subjected the judges to potential sanctions.
Nevertheless, in e-mails to his colleagues, often sent in "blasts" to all 1,300 judges in the Unified Court System, Himelein acknowledged that he was recusing himself as a "weapon" and a tactic 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.
Himelein recused himself in matters involving Hiscock & Barclay, whose staff attorneys include Sen. Neil Breslin, D-Albany, and Assemblyman Will Barclay, R-Pulaski, and also Harris Beach. Sen. Michael Nozzolio, R-Seneca Falls, is a member of Harris Beach.
In addition, Himelein recused himself from several probate cases in his capacity as Cattaraugus County Surrogate's Court judge, in which parties were represented by Weitz & Luxenberg, where Assembly Speaker Sheldon Silver, D-Manhattan, is a member.
The commission's ruling said Himelein aggravated his conduct by writing a series of electronic mails to other state judges in which he belittled Silver and other legislators.
In a 2007 "blast" e-mail, Himelein referred to Silver as a "slug," a term the commission said he later defined as a "distasteful creature that is large, slimy and worm-like."
Other e-mails from Himelein referred to legislators in general as "clowns" and mocked judges who declined to recuse themselves and join in a boycott involving firms employing lawmakers.
"The judges in NYC, who by and large are appointed by the politicians, don't have the guts to do it, and that's where most of the lawyer-legislator is from," Himelein was quoted in a story that ran in April 2008 on the Albany cable station Capital News 9. "What we're saying is you'll have to get a different lawyer. That doesn't do anything to the merits of the person's case."
In addition to the inappropriate nature of the comments about his fellow judges and the recusal effort he was trying to organize, the commission held in its ruling that Himelein is barred by judicial canons from making public comments about pending cases.
"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.
Himelein argued in letters he sent to Hiscock & Barclay and other firms warning about his intention to recuse himself that he considered himself conflicted by the pay raise dispute and the $100 contribution he had made toward the plaintiffs' legal costs in Maron v. Silver, one of three pending suits seeking court intervention in forcing the Legislature and governor to grant state judges a pay raise.
The commission found that Himelein had also informed his judicial colleagues via e-mail of his support of a second judicial pay suit, Larabee v. Spitzer (since renamed Larabee v. Governor), about a week after it was filed in September 2007 and his intention to continue to recuse himself as a way of catching lawmakers' attention.
"I continue to view this as an automatic recusal," Himelein wrote. "Not until these firms start letting their legislators go will we have any standing at all with these clowns."
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