One of the plaintiffs in Larabee is Judge Michael L. Nenno, Himelein's colleague on the Cattaraugus County Court, Family Court and Surrogate Court bench.
Former Court of Appeals judge Richard D. Simons had held a hearing and gathered facts as a referee in the Himelein case, but the commission and Judge Himelein reached their stipulation before Simons issued a report.
In warning judges about improper recusals last year, the commission cited Advisory Opinions 89-93, 07-25 and Advisory Joint Opinions 07-84 and 88-17(b). In general, the opinions say recusal is not required when legislators themselves or firms employing state legislators appear before judges, unless judges have valid beliefs that they cannot decide matters impartially.
Himelein, 60, the district attorney in rural Cattaraugus County from 1982 to 1992, has heard cases in the County, Family and Supreme Courts since 1993.
'ISOLATED' PROBLEM
State judges have become increasingly resentful of legislators, accusing them of blocking their raises to gain leverage for a legislative pay raise.
"The judicial pay raise dispute has fomented for more than 10 years," said Himelein's attorney, Terrence M. Connors of Connors & Vilardo in Buffalo. "Judge Himelein's comments were borne out of his frustration over the legislative inaction."
"This is a judge with an impeccable judicial record. He has acknowledged that his advocacy on behalf of judges was in error and he is prepared to move forward and resume his judicial career."
Connors said that Himelein would have no comment on the commission's ruling.
Robert Tembeckjian, administrator of the commission, noted in a statement that the agency had supported a raise for judges as "well-deserved and long overdue."
"Honest advocacy for judicial raises is entirely appropriate," he said. "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."
The ruling released Monday did not discuss the extent, if any, that other judges recused themselves based on dissatisfaction with the lack of a judicial pay raise.
"The matter involving Judge Himelein is the only one of its kind before the commission," Tembeckjian said in an interview. "I would hope that the public would be reassured that the commission took appropriate action in this case, and that this problem appears to be isolated."
Brooklyn Supreme Court Justice Arthur M. Schack wrote in a scathing 10-page ruling earlier this year that he was recusing himself from a case where the plaintiff was represented by Jaspan Schlesinger Hoffman "to avoid any potential appearance of impropriety."
The judge noted that the firm employs Sen. Craig M. Johnson, D-Port Washington, and Assemblyman Marc S. Alessi, D-Wading River, and that thanks to the Legislature, the judiciary has become the "Rodney Dangerfields" of government due to the long lag in its last pay raise.
Schack also wrote that it would be improper to hear the case because he has a personal stake in the pay raise situation as a plaintiff in the Maron v. Silver litigation.
Unlike Schack, Himelein is not a plaintiff in any of the pay raise suits.
A spokeswoman for Silver said the speaker would have no comment
Oral arguments in Maron v. Silver, Larabee v. Governor and the third pending judicial pay raise suit, Chief Judge v. Governor, will be heard by the Court of Appeals on Jan. 12, 2010.
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