Judicial Reports: Crisis? What Crisis?
By Jason Boog
jasonboog@judicialstudies.com
Posted 04-03-08
The Legislature's nearly decade-long inaction on a judicial pay raise has prompted fears that jurists will engage in mass recusals involving any cases connected with legislator-lawyers. A report from the field.
Ever since three jurists sued State politicians in 2006 over the lack of a judicial pay raise, judges have been recusing themselves from cases handled by law firms that employ New York Legislators.
Recently, the 20-attorney Poughkeepsie firm Gellert & Klein found out how one judge’s recusals can affect a practice. According to senior partner Arthur L. Gellert, one judge's recusals have "affected approximately dozen cases."
Gellert attributed these reassignments to his firm’s employment of State Senator and Judiciary Committee member Stephen M. Saland, who is of counsel with the firm.
“We’ve had one recusal amongst all the judges,” he said, explaining that Dutchess County Court Judge and Acting Supreme Court Justice Thomas J. Dolan was the only judge to recuse himself on cases in the Mid-Hudson Valley where the firm operates.
“This is a relatively small area — if one judge recuses it affects a fairly large number of cases. Notwithstanding the fact that Senator Saland is of counsel to our firm, a number of judges have not recused. We are very grateful for that,” he concluded.
Judge Dolan declined an interview request.
Pay-related recusals variously cite conflicts of interest over three lawsuits currently filed by judges against State politicians: Maron vs. Silver (filed by three Upstate judges), Larabee vs. The Governor of New York State (filed by four Downstate judges) and Kaye vs. Silver (filed by Chief Judge Judith S. Kaye on behalf of all State judges).
If judges were recusing themselves on a grand scale for Legislators’ law firms, it could have dramatic effects on the justice system. But are they?
In an effort to separate hype from reality, Judicial Reports called a number of law firms that employ Legislators — including every firm that employs a member of the Assembly Judiciary Committee and a number of firms that employ members of the state Senate Judiciary Committee — to determine the frequency of pay-related recusals.
In this small, unscientific sample, the impact of recusals depends on the judge, the jurisdiction, and the firm at issue.
Out of all the firms contacted, only four respondents said they were affected by recusals to some degree: Gellert & Klein, Jaspan Schlesinger Hoffman, Weitz & Luxenberg and Hiscock & Barclay. Looking at those firms provides a window into the crisis and the different roles each highly connected law firm plays.
The Long Island firm of Jaspan Schlesinger Hoffman in particular has been mentioned in most news reports, citing a rash of recusals in its book of business. With 60 attorneys, the firm is three times the size of Gellert & Klein, and has absorbed many more recusals.
“Probably 15 or 20 judges around the State have recused themselves in our cases,” noted Steven R. Schlesinger, a managing partner at the firm. Most recently, Nassau County Supreme Court Justice Leonard B. Austin recused himself from a high-profile case the firm is handling for Donald Trump.
Schlesinger’s firm employs two different Democratic Legislators — Senator Craig M. Johnson and Assemblyman Marc S. Alessi. A search through cases archived in the ecourts online filing system revealed that most of the cases involving the firm this year are tax matters. In these cases, the firm represents companies in litigation against town assessors around Long Island.
Jaspan has also contributed thousands to political campaigns around the state. While these donations are unconnected to the recusals, they do illustrate the political capital these firms have established in New York politics.
According to state Board of Elections filings, Gellert & Klein has contributed nearly $13,000 to political causes since 1999. $2,300 of those contributions went to Supreme Court candidates.
Jaspan’s political contributions are noticeably larger.
According to Board of Elections records, the firm donated more than $76,000 around the State since 1999: $2,500 went to the State Republicans, and $3,500 went to local Republican committees. More than $12,000 went to the Nassau County Democrats, but the firm did not donate to the State Democrats. Of that total, $1,500 went to Supreme Court candidates.
The law firm of Weitz & Luxenberg has been mentioned in many articles about the recusals, and with good reason. The personal injury firm employs State Assembly Speaker Sheldon Silver, a political figure named as a defendant in all three judicial lawsuits.
In April, two Upstate judges told the New York Post that they recused themselves from Weitz & Luxenberg cases based on their personal stake in the pay-raise debate.
Nevertheless, managing partner Arthur Luxenberg downplayed the issue, saying that his Downstate attorneys — who are litigating the bulk of the firm’s cases — haven’t encountered any resistance.
“These judges have not recused themselves,” he said, referring to the firm’s large docket of asbestos litigation that is handled in Downstate courts. “We are dealing with seriously ill clients who have been denied their day in court for years. They need to see a courtroom very quickly, these judges are understanding of that. They won’t let political issues stand in the way of doing the right thing for these claimants.”
A search of cases filed in 2008 (all archived by the Unified Court System's ecourts archive) revealed that more than 55 of his firm’s 64 Supreme Court Civil Term cases were handled by Justice Helen E. Freedman — the judge tasked with handling both pre-trial motions and discovery for all asbestos cases in New York City, Long Island, and Westchester.
Just as one Upstate judge managed to get Gellert & Klein’s attention, Justice Freedman could single-handedly force reassignment of a majority of cases being handled by the law firm that employs Sheldon Silver.
When asked in an interview why she did not recuse herself from these cases, Freedman had a curt, simple reply.
“The only thing I would say is that my understanding of recusal is that one is supposed to recuse when one thinks one cannot be fair. I believe I can be fair in this case,” she concluded, declining to discuss the matter further.
The firm, which counts 60 attorneys and more than a billion in personal injury settlements, also has an impressive history of political contributions. According to Board of Elections records, the firm has contributed a total of $95,000 to state campaigns since 1999. Of that sum, $50,000 went to the New York State Democratic Party and $10,000 went to the State Republican Party. Both donations were labeled as “Housekeeping.”
In addition, the firm donated $500 to a single Supreme Court candidate, Manhattan Justice Barbara R. Kapnick.
Compared to Schlesinger’s woes, the powerful law firm of Hiscock & Barclay only noted one serious, pay-related recusal — despite employing Neil D. Breslin, a State Senator who actively opposed the judicial pay raise.
Earlier this year, a judge took the firm to task in a published decision that outlined the pay-raise struggle in no uncertain terms.
Supreme Court Justice Arthur M. Schack, one of the three judge-plaintiffs involved in the Maron vs. Silver lawsuit, recused himself in a bold opinion that meditated on political power and the voting records of individual Legislators.
“Upon review, I must recuse myself from this matter to avoid any appearance of impropriety because the Hon. Neil D. Breslin, a member of the New York State Senate, is of counsel to plaintiff's law firm, Hiscock & Barclay, LLP,” he wrote. “When a judicial pay raise bill, 2007 NY Senate S 5513, came up for a roll call vote in the State Senate on April 30, 2007, the Hon. Neil D. Breslin voted against a judicial pay raise.”
When asked about the ethics of his decision in an interview, Schack said, “I have searched my conscience, and I don’t think I did anything inappropriate.” By the judge’s estimate, he had recused for pay raise conflicts on 12 cases since the litigation began.
But Schack’s recusal is almost an anomaly this year, according to the firm.
“It’s been such a small issue for us, a non-issue for us really,” said Robert A. Barrer, a partner at Hiscock & Barclay. “Our attorneys are supportive of the request for pay raises for judges.”
Besides Schack’s recusal, the firm had only received a few letters from judges “requesting remittal” — an agreement between both sides that they understand the judge’s stake in the pay-raise lawsuits but agree to continue with the judge.
Once the order was signed, the cases continued apace.
In addition to the State Senate connection, this firm plays a strong role in the state fundraising game.
Hiscock employs 200 attorneys with eight different law offices around North America. According to Board of Elections filings, the firm has contributed $544,000 to political causes statewide. That included $11,000 for the state Democratic Committee and more than $15,000 for the state Republican Committee.
In addition to leading the Statewide fundraising totals, the firm has also donated a significant amount of money to judicial campaigns. The Board of Elections logged more than $32,000 given to a number of different Supreme Court campaigns.
When asked to help quantify the recusal problem, an Office of Court Administration spokesperson said that the OCA did not monitor recusals, noting that they felt the movement was not “widespread.”
It is virtually impossible to track how many recusals have happened around the state.
Many recusal decisions go undocumented or unpublished. Often jurists make use of "short-form orders" for recusals. While both parties in a case receive notice of these orders, the forms are neither published nor logged statistically by the court system.
Thus, the press only finds out about the judges and law firms who go public about the recusals.
Nevertheless, the Chief Judge cautioned the 1,300 judges in her care with an email at the beginning of May.
Kaye wrote: “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.”
Even though Luxenberg thought the recusals hadn’t slowed his firm, he added that he hoped that note would end the recusal problem. “I’m hoping Judge Kaye cleared this matter up, advising them that recusing themselves pending issues regarding salary increases is not appropriate,” the managing partner said.
Posted by Jason on June 4, 2008 01:13 AM to Judicial Reports