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.
Mark N. says:
As a timely coincidence, the Houston Chronicle’s front page today has an overview of debate about the judicial sanctions process, discussed briefly at the WSJ blog.
The process does seem to have achieved a result here, although censure is a fairly weak sanction for such open misuse of the office. Surely at least a token fine is in order?
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December 31, 2009, 1:36 pmShelbyC says:
Censure? Sounds like the guy should be in jail. Isn’t this extortion?
And it’s not like he just extrajudically refused to hear the cases. A recusal is a judicial finding, isn’t it? How is this different from making other judicial findings to the detriment of the legislators with the intent to get them to pass laws he wants?
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December 31, 2009, 1:41 pmcwolf says:
Aside from the rogue activities of this judge„,
Am I the only one who has a problem with legislators double dipping as private attorneys.
Advocacy for a private (corporate) interest as an attorney seems to me to be in conflict with a legislator’s role as an elected sworn-in representative of the people.
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December 31, 2009, 1:43 pmBama 1L says:
How did you decide to draw the line there? What if the legislator works for a corporation or owns stock in one?
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December 31, 2009, 1:49 pmNick says:
It’s just sad that it came to this. Legislators giving themselves raises every year without pause while simultaneously ignoring the judiciary is absurd.
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December 31, 2009, 1:49 pmSoronel Haetir says:
Many states have short legislative sessions, Texas something like eighty days every two years as an example. Those states expect their legislators to have real jobs in the meantime. Perhaps if it were a full time job with commensurate pay your point would be valid.
I don’t know the situation for the legislature in question for this piece.
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December 31, 2009, 1:55 pmcwolf says:
Didn’t think I was drawing a line.
I believe I was just pointing to one of many turds with which most legislators sleep.
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December 31, 2009, 1:56 pmcwolf says:
The post is about a judge and legislators from a relatively sane state, New York. Texas is plagued with problems few states outside the Red Zone suffer.
Legislating in a real state like NY is a “Full Time Job” (relatively speaking) and NY pols are paid well for their (ahem) service.
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December 31, 2009, 2:02 pmSuperSkeptic says:
E-mails Judge Himelein? E-MAILS?!
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December 31, 2009, 2:07 pmSteve says:
It’s all well and good to say that legislators ought to be able to earn a buck or two, but the reality of these “lawyer-legislators” is that if you have an important case pending in the Bronx (for example), you hire a local assemblyman as your co-counsel to give you that extra dollop of juice with the court. I’ve done this myself on more than one occasion. It’s not a very impressive way to run a legal system, frankly.
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December 31, 2009, 2:09 pmShelbyC says:
Do they do anything, or are they just there for the juice?
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December 31, 2009, 2:14 pmEric C says:
I am not a lawyer, judge or legislator, and I have no idea how the sanctioning system works. I find it incredible that the judge in question has not been removed from the bench permanently.
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December 31, 2009, 2:32 pmAnderson says:
What if the judge had simply said that he WOULD be prejudiced due to his resentment of the legislature’s inaction, and recused himself on that basis?
He could’ve sent e-mails “confessing” his bias and thus implicitly encouraging others to join him.
Not a very smart guy, it seems.
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December 31, 2009, 2:36 pmjcm says:
It is outrageous but legislator having law firm is even more unethical
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December 31, 2009, 2:45 pmSteve says:
Do they do anything, or are they just there for the juice?
Depends how sharp they are. Sometimes they might add a few words to your oral argument. Sometimes they’re just agreeing to put their name on your brief. But in any case, there’s no reason you’d ever be partnering with any of these people except for the hope that the judge might want to be in the good graces of a local legislator.
Of course, just hiring local counsel (never mind lawyer-legislators) can be equally ridiculous in many cases, although the corruption is arguably to a lesser degree. I recall one time we hired local counsel who quite literally played golf with the judge on our case every Friday. “So, Judge, what did you think about that motion we filed?” This is not the reality of every case, but it is quite real.
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December 31, 2009, 2:50 pmShelbyC says:
Heh. Rule in favor of our motion and I’ll let you do that shot over.
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December 31, 2009, 2:55 pmDoc Merlin says:
This is outrageous. However, judges do need a payraise.
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December 31, 2009, 2:59 pmRichard Atwood says:
The way you draw line as regards legislators doing legal work is simple: You prohibit it. Lawyers are officers of the court in many states and therefore part of the judicial branch. They cannot serve in the legislative branch without conflict of interest. These conflicts are not rare but occur daily.
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December 31, 2009, 3:07 pmEric Rasmusen says:
If the system is corrupt, it’s not enough to just ban legislators from being lawyers. You also have to ban their families. Plus, you can’t let them or their families run insurance companies or be involved in the finance industry.
In this case, I wonder if that same judge is one of those for whom it’s important to hire a legislator as lawyer. It sounds like he is on the moral level where he just wants a piece of the action. It might be interesting to see how he got his job. Was he elected (if so, who backed him)? Was he appointed?
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December 31, 2009, 3:19 pmcwolf says:
If the pol makes an appearance in a relatively minor or inconspicuous case, all s/he usually needs to do is say something to the court like “I believe there is reasonable doubt in this case” or some other line of BS & the compliant judge will dismiss the case based on the pleadings with or without additional evidence. This is called professional courtesy or in the instance of a retired judge/lawyer is known as, “Judicial Courtesy”. It’s a well trod path to dismissal of traffic tickets & misdemeanors (& even some felonies) in NY. (& likely in other states).
If the pol’s associate makes the appearance, the court often punishes the stand-in attorney by allowing the case to proceed for a little while before dismissing the information. These dismissals frequently come with sternly worded admonitions for the defendant.
It’s not only legislators who are allowed this “courtesy” but it is also extended to former DA’s, Judges, Mayors, Councilcritters, etc.
I have no experience with how the scam works in civil proceedings.
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December 31, 2009, 3:21 pmDave N. says:
Except, of course, that lawyers are not part of the judicial branch.
This is particularly true of government lawyers. I work for my state Attorney General (an executive officer). I formerly worked for a District Attorney (also an executive officer).
The fact that I work in a courtroom no more makes me part of a the judicial branch than having a post office box makes me part of the Postal Service.
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December 31, 2009, 5:37 pmHouston Lawyer says:
In Texas, we could convict him for official oppression. Whereas in New York, he keeps his position and his benefits.
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December 31, 2009, 6:02 pmGuy says:
Absolute immunity is a wonderful thing, if you’re a judicial officer.
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December 31, 2009, 6:07 pmpete says:
Such terrible problems like being one of the few states this year with a balanced budget. How is New York’s budget this year?
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December 31, 2009, 6:14 pmSteve says:
Absolute immunity is a wonderful thing, if you’re a judicial officer.
If judges have absolute immunity from criminal prosecution, it’s news to me.
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December 31, 2009, 6:22 pmwm13 says:
I don’t know much about Texas, never having been there, but anyone who would refer to the government or political system of New York as “sane” evidently doesn’t live here.
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December 31, 2009, 7:05 pmOctavian says:
The love of money is the root of all evil.
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December 31, 2009, 7:45 pmvic says:
Judges and lawyers always make the law beneficial for themselves.
this judge should be in jail and for a long time
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December 31, 2009, 8:43 pmC.T. says:
interesting. I myself am a deputy Attorney General (executive branch) but when I worked for the county prosecutor I was considered part of the judicial branch. I didn’t realize it until I was looking through the annotations in the state constitution and there was a state court case that actually held that county prosecutors were considered part of the judicial branch.
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December 31, 2009, 10:51 pmDave N. says:
CT:
I suspect we work in different states. In my state, the district attorneys are clearly considered part of the executive branch.
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December 31, 2009, 11:19 pmArthurKirkland says:
Could Judge Himelein reasonably be perceived to be impartial, after the censure and public humiliation, with respect to any litigation involving one of the relevant legislators’ firms?
He sounds like a judge who might hold a grudge.
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January 1, 2010, 1:43 amGuy says:
For shame, you assume bad faith and an inability to control personal bias from this judge?
Alternatively, would the creation of bias retroactively excuse his recusals, thus eliminating the censure, and therefore eliminating the bias, making his recusals inappropriate, justifying the censure....
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January 1, 2010, 2:00 amneurodoc says:
How would this sort of thing come to the attention of the Judicial Conduct Commission? Would aggrieved legislator/lawyers have formally complained, or might one of Himelein’s colleagues on the bench been so discomforted by his injudiciousness that they complained? Would it start with a bar committee complaint? Does someone, perhaps from the AG’s office, “prosecute” a matter like this before the JCC? Why a “stipulated sanction of censure,” was that the equivalent of a plea bargain? Will the censure have any real effect on this judge who probably was not a candidate for the state’s highest court in any event?
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January 1, 2010, 10:40 amFedya says:
The judge may be a boor, but one thing he was right about was calling Assembly Speaker Silver a slug.
Speaker Silver once argued that the legislators needed a pay raise, claiming that the legislators earned less than minimum wage. People did the math, and determined that, at the legislators’ base pay (most of them got extra perks for committee chairmanship and stuff like that), they would have to work 31 hours a day, 365 days a year for their salary to be minimum wage. In New York, the legislators only work about three and a half days a week (because of the large Jewish population, the legislature tries to get everybody home before the Jewish Sabbath), with the legislative session being only half the year (except when you have an equal split between the parties in the State Senate, which is a whole nother can of worms).
The [expletive deleted] legislators got their pay raise. That was back in 1998, and Silver is still the Speaker, 12 years on.
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January 1, 2010, 10:47 amArthurKirkland says:
The conclusion derived from the evidence (e-mails). It is an assumption to the extent is relies on the judge’s authorship of those e-mails; what could make that assumption shameful?
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January 1, 2010, 1:05 pmAnonymous because it would be bad for my career to criticize a judge says:
If judges are going to recuse themselves over bias resulting from the pay issue, they should be recusing themselves from cases involving Wachtell, Lipton, Rosen & Katz. After all, they represented the judges pro bono in the action Kaye v. Silver 400763/2008 in which the judges sued for a pay raise. You can guess for yourself why Wachtell, Lipton did so.
If the judges want legal assistance, they should pay for it like most people do instead of accepting free legal services as a bribe. While I think that judges in New York were underpaid, I am shocked that the manner in which they went about getting a pay raise was not perceived as an incredible abuse of power. They had a state judge, who is obviously an interested party, order the state give judges a 30% raise. I do not think many state judges would have had the guts to rule against his colleagues, regardless of the merits of the case. The fact that legal papers were filed and rulings were made by a person wearing a judicial robe does not mean that the proceedings had anything to do with law. Where was the outrage?
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January 1, 2010, 4:57 pmNickM says:
I think he forgot a /sarc tag.
Nick
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January 1, 2010, 7:19 pmRyan Waxx says:
What is the matter here? All the judge was trying to do was set up a collective bargaining scheme, and if necessary I can bring quotes in from another thread dealing with government unions about the absolute right of government employees to do so.
Work stoppages and strikes, like the one he engaged in and was encouraging with his fellow justices, are traditional, legally-guaranteed tools of the union.
The honorable L. Himelein must immediately have his record cleared of this illegal union-busting tactic and be appointed to a leadership position in the new organization.
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January 1, 2010, 10:42 pmDavid Schwartz says:
This censure goes on his Permanent Record!
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January 2, 2010, 12:36 amdrunkdriver says:
Steve,
you are criticizing the system for this, but you’re telling us that you engage in this conduct! If you don’t think it’s right, you can stop.
Lawyers are hired all the time on a who-you-know basis; for similar reasons, lawyers remove cases to federal court, or pick certain venues, because they know the judges and/or will get better treatment in their preferred court.
Litigation is not a process of mathematical proofing. This is part of why lawyers fret so much about “presentation” of their case– it makes a difference how you present a case. Sometimes it makes a difference who presents it. Judges are human and are impressed by “stars,” though maybe less so than the average person. A lawyer who has the judge’s ear can make a huge difference for you.
As for the judge in this story: I think if I were legislator, I’d be GLAD he recused from my case. I’d hate to have him take my case only to rake me over the coals.
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January 2, 2010, 10:34 amShelbyC says:
DrunkDriver, what Steve is describing is basically a form of extortion. And you’re right, if you don’t like being extorted, you can stop paying, but it’s not always a good idea.
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January 2, 2010, 12:12 pmdrunkdriver says:
ShelbyC,
I dunno– some lawyers bring intangibles to the table. Let’s say I have a case with an important constitutional issue and a lot is at stake. I think if I bring in Orin Kerr or Eugene Volokh, that I get more than just good briefing and cogent argument. I could’ve done that on my own, if not as well; but there are dozens of lawyers who could’ve done as well as they. But by bringing these guys in– just like when you bring a Roy Black, or Russ Hardin, or some other bigger name– you are sending a signal to the judge that this is something they should take very seriously. On a lower scale, when you bring in one of the more influential members of the local bar, you are sending the judge the same message.
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January 2, 2010, 4:50 pm