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Judge Accepts Censure for Promoting Recusal as 'Weapon' Over PayNew York Judge Larry M. Himelein has accepted censure for trying to organize other judges to recuse themselves from cases involving the law firms of legislators who have denied New York's judiciary a pay raise since 1999, a judicial conduct commission said Monday. The commission's ruling said Himelein aggravated his conduct by writing e-mails to other state judges in which he mocked judges who declined to recuse themselves, calling them "wusses" and "wimps" and telling them to "grow some stones."
New York Law Journal2009-12-29 12:00:00 AM
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."
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.
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.