Judicial Reports: The Recuse Fuse

By Jason Boog
jasonboog@judicialstudies.com
Posted 05-07-08

With judges furiously suing lawmakers, members of the bench are finding more and more reasons to excuse themselves from presiding over certain firms' cases. This could get explosive.

On April 28, Nassau County Supreme Court Justice Leonard B. Austin recused himself from Donald Trump’s legal battle over a patch of beachside real estate — a move that thrust the jurist into the nasty judicial salary battle that is being litigated on three different fronts.

Trump had sued New York State after a review board rejected his plans to build a large catering complex on Jones Beach. Community activist Patricia Friedman attempted to intervene in the suit, filing on behalf of two community organizations that oppose Trump’s plans.

As Austin considered this petition of intervention, Friedman’s attorney requested that he recuse, because Trump’s case is helmed by the firm of Jaspan Schlesinger Hoffman, which employs two Democratic State Legislators: Assemblyman Marc S. Alessi and Senator Craig M. Johnson.

Austin obliged, explaining that his implied interest in the pay raise lawsuit Maron v. Silver — filed in December 2006 against the State Legislature by judges disgruntled by 10 years without a cost-of-living adjustment — might affect with his decision. Even though Austin is not a plaintiff in Maron, he reasoned that the conflict was enough to grant the recusal motion.

According to attorneys, a growing number of judges have recused themselves on similar grounds, even after Chief Judge Judith S. Kaye sued the state in April. (One other suit filed by four lower-court judges is Larabee v. The Governor of New York State.)

But Austin went further than most by actually writing an opinion about his recusal.

“Since the Proposed Interveners have raised an objection to this Court’s impartiality, this Court must recuse itself from this matter because of its involvement with the Maron Action. The parties are entitled to have confidence that the justice hearing their case is not seeking to realize a favorable result from the legislator or to punish the legislator or counsel involved in that litigation,” wrote Austin.

When that suit was first filed in 2006, it named Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph L. Bruno, and former Governor George Pataki as defendants.

Coincidentally, Austin served as Counsel to another Assembly Speaker in the 1980s. Asked about the current litigation, the Justice declined to be interviewed.

Attorneys from both sides of this litigation, however, weighed in with different interpretations of the recusal.


Ronald J. Rosenberg, the Rosenberg Calica & Birney attorney representing the community activist in the lawsuit, called the pay raise debacle “a gross injustice” against the judiciary and applauded the jurist for his bold stance: “Justice Austin is at the forefront of trying to correct that injustice,” he said, adding that he had tried between 10 and 20 cases in Austin’s courtroom during the last few years.

The attorney representing Trump in the litigation dismissed the recusal motion as “merely judge shopping” on the part of his adversary — noting that Austin has deferred to counsel on the recusal question in the recent past. The attorney explained that his firm has plenty of contact with Justice Austin, and this was the first time pay raise recusals had slowed a case.

“We’re one of the largest firms in the region, at any one time I could have somewhere between 25 and 50 cases pending before him,” explained Steven R. Schlesinger, a managing partner at Jaspan Schlesinger Hoffman. “Normally he says ‘Look, Steve Schlesinger’s firm has two members of the Legislature. I think I can be fair, but I’d like both parties to consent in my case.’ To my mind, this is the first time [one party] has said no. He has a stellar reputation of being fair.”

Schlesinger noted that an unofficial judicial slowdown has affected other parts of his firm’s practice in recent months — estimating that between 15 and 20 judges around the state had recused themselves by citing pay raise suits.


In addition to Justice Austin’s recusal in this case, Supreme Court Justice Arthur M. Schack recused himself on March 10 in a separate matter represented by Rosenberg’s firm, Washington Mutual Bank v. 334 Marcus Garvey Blvd. Corp.

In that decision — like Austin’s, unusual for having been written — Justice Schack explicitly noted how Senator Craig M. Johnson (and Jaspan Schlesinger Hoffman attorney) voted against judicial pay raise legislation in 2007.

“I would hope that Mr. Johnson and Mr. Alessi would allow the judges of this state to receive their first pay raise in almost a decade. Thanks to our legislators, like Senator Johnson and Assemblyman Alessi, it appears that our judges are the Rodney Dangerfields of government. A pay raise would help to give us a little respect, instead of, as recently said by Chief Judge Kaye, the disdain with which we are treated,” wrote Schack.

In a telephone interview, Justice Schack said that since he is a plaintiff in the Maron v. Silver lawsuit, his options differ from Austin’s. “I’m a plaintiff, I’m in a different situation than the other judges,” he explained, adding that eight other judges are also involved in suits, including Chief Judge Kaye.

“I have searched my conscience I don’t think I did anything inappropriate,” he said when asked about the ethics of his recusals. He estimated that he had specifically recused for pay raise conflicts on 12 cases since the litigation began.


The numbers are murky. When asked about the issue, Office of Court Administration spokesperson David Bookstaver noted “We don’t track recusals — they are independent judicial decisions. We’ve never tracked them, and we’re not tracking them now. We don’t believe they are widespread.”

A search of state cases published in 2008 turned up 21 opinions that mentioned the word recusal. Of those decisions, only three mentioned Maron.

However, many recusal decisions go undocumented or unpublished. In many cases, Justice Schack explained, jurists fill out "short-form orders" for recusals. “It’s a pre-printed form,” he said. “The parties are each given a copy, and it’s sent to the clerk, and it’s assigned to another judge.”

On April 24, the State Advisory Committee on Judicial Ethics ruled that pay-related recusals were far from mandatory: “The ultimate decision on recusal remains within the judge’s discretion.”

While neither Schack nor Austin mentioned Chief Judge Kaye’s suit in their decisions, her litigation — on behalf of the 1,300-plus judges on the state payroll — has created the most potential for such conflicts.
 
Late last week, Kaye sent a cautionary email to her colleagues: “The recent press coverage of the Judiciary is not helpful in our efforts to attain salary increases.  Our many friends and supporters tell us quite frankly that we reduce our effectiveness and weaken our cause when we publicly engage in conduct that is perceived as retaliatory, such as denigrating public officials and using recusal as a strategy rather than as a matter of individual conscience.”

Whether intended or not, his recusal in Trump’s case has made Justice Austin a public face of the recusal movement. But he’s received his share of headlines before.


In 2005, the Austin handled the high-profile suit brought by six disappointed “winners” of a “Scratch n’ Match” who thought they won thousands of dollars in a contest sponsored by the New York Daily News. They sued the newspaper and a contest-administration company over a printing mistake after thousands of people thought they had received winning tickets in the contest.

Kenneth M. Mollins, the Long Island attorney who helped the disgruntled contestants sue, recalled that the courtroom was often packed with unhappy people during this controversial case, but appreciated how the judge kept his courtroom calm.

“The Daily News hired this huge firm in Manhattan, and I’m a small Nassau lawyer, but he made the situation equitable — he listened to both sides well,” said the attorney, who estimated that he had argued about 12 cases in front of the judge in the last two years.

The Justice ultimately ruled against Mollins, dismissing the lawsuit. In his decision, he explained: "Defendant’s error is, in reality, no different than a bank error resulting in extra money being deposited into one's account. . . . Since one never had a legal or contractual right to that money, one cannot be heard to complain when the error is caught and corrected."

Despite this loss, Mollins had fond memories of the judge: “He may think your case is horrible, but he doesn’t let you know that in a negative way while he’s listening. He’s not going to chastise you for expressing your opinion.”

The Daily News’s attorney did not return a call for comment.

Separately, Justice Austin’s reversal record is strong. Between 2000 and 2007, he was appealed 76 times in civil cases, and was affirmed 51 times, yielding a reversal rate of 33 percent. That’s 12 points below the Second Department average for civil appeals, as calculated by the Institute for Judicial Studies, which publishes Judicial Reports.  

(Note: Decisions marked “Modified and Affirmed” are treated as de facto reversals.)

Austin graduated from Hofstra University School of Law in 1977.

His legal career began its ascent with the State Legislature. Following a short stint in private practice, he served for two years as Associate Counsel Speaker Stanley Fink.

In all, Austin spent 20 years in private practice, becoming a name partner at Stillman, Herz & Austin , followed by Wolfson, Grossman & Austin.

Austin won his Supreme Court seat in 1998, scoring a crucial cross-endorsement that changed his political career.

According to newspaper reports, the Democratic judge had unsuccessfully run for Supreme Court five times before he negotiated a cross-endorsement from the Conservative Party — a so-called minor party with a crucial vote that can tip close Long Island races. Click here to read Judicial Reports’s coverage of that sea change.

While the party had usually stuck with Republican candidates, Austin earned unexpected support as a Democratic candidate. At the time, Newsday reported that Suffolk Conservative Chairman Pasquale Curcio gave Austin the nod “because he knew him personally and thought he'd be a good judge.”

"I feel like I'm a pioneer for this new relationship that has been forged,” he told reporters after he won the race in which a field of 13 candidates competed for six spots. “I think it will change the complexion of the Judiciary in Nassau and Suffolk for years to come."

His statement was quite prophetic. Long Island has turned markedly more Democratic since that election.

 If he could pioneer a new relationship between the Legislature and the pay raise issue, of course, that would  change the complexion of the Judiciary throughout New York.

Posted by Jason on May 7, 2008 01:41 AM to Judicial Reports