178 Misc. 2d 971 | Westbury Just. Ct. | 1998
The defendants are charged with violations of local laws in that it is alleged that they illegally conducted a retail business for the manufacture of bathing suits and accessories out of their basement and engaged in construction and alterations therein without obtaining building and electrical permits.
The defendants have appeared before this court pro se. They were represented by counsel until recently when their attorney asked to be relieved. That application was granted. Thereafter, the defendants appeared in court pro se, by Carmela Cardoza. She had not appeared in the matter previously. At her first appearance she asked to make some introductory comments, wherein she stated that she was not asking this Judge to recuse himself and stated that she felt he “could be fair.” In her introductory comments she stated that her husband, an attorney, had been my opponent for Village Justice in 1991.1 ran unopposed in 1995 and I was reelected to a second four-year term.
The court is writing this decision to address two issues. The court raises these questions sua sponte. First, does the defendant’s reference to the previous election contest with the defendant’s husband require my recusal even in the absence of a motion by the defendants? Second, is the question of recusal properly decided by the Judge whose recusal is sought?
The first question is not one of first impression.
Section 14 of the Judiciary Law mandates recusal when the following factors exist:
(2) The Judge has been an attorney or counsel in the proceeding; or
(3) The Judge is interested in the matter; or
(4) The Judge is related by consanguinity or affinity, within the sixth degree (as defined by the statute), to any party to the proceeding.
This is not a case of mandatory recusal. {See, Code of Judicial Conduct Canon 3C; Rules of Chief Administrator of Cts [22 NYCRR] § 100.3 [E].) Rather, if anything, it is a discretionary decision. {See, People v Moreno, 70 NY2d 403 [1987].)
The second question is one of first impression. The law in both Federal and New York’s State courts is that questions of recusal are decided by the Judge whose recusal is sought. The Judge then is being asked to make a subjective determination involving his or her ability to be fair and impartial. Further, whether the Judge’s continued involvement in the case creates an appearance of impropriety is not an issue best determined by the Judge whose recusal is sought.
It should be noted that when this defendant was represented by counsel in this case, the court, sua sponte, on at least two separate occasions, inquired of defense counsel as to whether he wished that I recuse myself. On those occasions defense counsel responded in the negative. The defendants were not present on those occasions, their appearances having been waived.
An application for recusal or a desire to make such an application, by either the client or the lawyer, may cause a rift to occur between them. Courts must therefore be sensitive to these dilemmas by meeting them head on.
Lawyers too are often very reluctant to make recusal motions for fear that by doing so their clients or their clients’ interests might be jeopardized. Lawyers are also sometimes concerned that the fallout from the motion may adversely af
Lawyers have other concerns as well. They fear that their motion in a particular case will be viewed as an insult by the Judge and thereafter affect their ongoing relationship with that Judge or the Bench as a whole. Lawyers do correctly surmise that some Judges talk with other Judges about lawyers and litigants. Unfairly and behind the scenes, a lawyer may be made into a pariah with no chance to counter or rebut the charges against that lawyer that are bandied about in the judicial rumor mill. This kind of skullduggery by some Judges, offended by recusal motions or simply using the recusal motion as an excuse to grind their axes against lawyers, can injure or destroy a lawyer’s reputation and practice. This result can happen either by design or indirectly as a result of judicial scuttlebutt.
Recusal may send a message to other Judges that a lawyer and the Judge recusing herself or himself are enemies. Judicial colleagues may speculate as to the cause for the recusal and may then tend to side, consciously or subconsciously, with their judicial colleagues. Other lawyers may refer their business to attorneys who are not in the hot seat of judicial ire.
Exemplary Judges are careful not to blunt the advocacy of zealous lawyers. Indeed, they recognize that the strength of our system of jurisprudence has its origins in robust advocacy where lawyers and Judges challenge each other through legal argument. Notwithstanding this noble tradition, there are some Judges who use their positions and recusal as a means to threaten or embarrass their brethren on the other side of the
Today this court makes an unprecedented ruling which it hopes will be followed by other courts and Judges, both Federal and State. On matters of mandatory or discretionary recusal, Judges should not wait until litigants are forced into a position of either making the motion or abandoning the best interests of the client. Wherever possible they should act sua sponte and refer the matter to their Administrative Judge (if one is available) for reassignment to another Judge, just for the question of recusal. In the opinion of this court, if a Judge is passing upon a question of his or her own recusal, then he or she is creating an appearance of impropriety by that act alone. This is so, except in cases where the court is attempting to follow the per se rules relating to mandatory recusal. To provide otherwise is to allow judicial foxes to continue to watch the hen house.
Most Judges will no doubt disagree with this ruling since they cherish their powers including those which they arrogate to themselves, namely, to sit in judgment of themselves on matters of fairness, impartiality, appearances of impropriety and discretionary recusal. Yet, this decision is not about a blind adherence to the judicial status quo. It is, most respectfully, about opening the door to the robing room just ajar so that questions of fairness, impartiality and appearances of impropriety may peek in. And when they do, this Judge hopes that they will not see a smoke-filled room, but rather, a clear, majestic view of a blindfolded Lady Justice whose scales are evenly balanced.
Accordingly, this court respectfully refers this case to Honorable Elizabeth Pessala, Associate Village Justice of this court to review and consider this matter on the question of recusal. This court has just two Justices, a Village Justice and an Associate Village Justice. There is no Administrative Judge per se within this court.
. See Opinions 90-136 (vol VI) and 91-146 (vol VIII) of the Advisory Committee on Judicial Ethics where it was determined that a Judge need not disqualify himself merely because his opponent in the last election appears before him either as an attorney for a litigant or as a litigant. In both of those opinions the Committee determined that the Judge “need not disqualify himself unless on the particular facts the judge’s impartiality might reasonably be questioned, or if the judge has doubts whether he or she can be impartial.” (Opn 91-146, op. cit., see also, Opn 90-136, op. cit.) In this case, it is not an opponent, but rather a former opponent’s wife who is the litigant. It is also not the last election about which we are referring.
. For example, in United States v Oluwafemi (883 F Supp 885 [ED NY 1995, Gleeson, J.]), the defendant was charged with participating in conspiracies to import and distribute heroin. By his counsel, the defendant moved to disqualify the Judge and attorney representing the codefendant. The defendant requested that the Judge refer the matter of recusal to the Chief Judge. Judge Gleeson, whose recusal was sought, refused to do so. Instead, he decided that the fact that he had been a recent adversary of the defense attorney, just before the former became a United States District Court Judge, was not a basis for recusal. This was so, he found, notwithstanding the language of a brief he edited as an Assistant United States Attorney (in the same case), where he used language critical of defense counsel and the issue which he (the defense attorney) posited with the Second Circuit Court of Appeals. In his decision, Judge Gleeson referred to the critical language used in his brief as “standard fare” (at 891). The Judge also refused to recuse himself even though defense counsel had opposed his nomination to the United States District Court. Defense counsel also sought severance which was denied. When severance was denied, defense counsel moved for recusal of the Judge and of defense counsel representing the codefendant. Defense counsel alleged that the Judge and codefendant’s counsel, an attorney assigned to represent the codefendant under the Criminal Justice Act, had served together as Assistant United States Attorneys in the Eastern District of New York. They prosecuted two defendants that defense counsel later came to represent, namely, Gene Gotti and John Carneglia. The attorney for the codefendant was the Assistant United States Attorney during a third and final trial which resulted in convictions and life sentences of Messrs. Gotti and Cameglia. A few years thereafter, defense counsel for Oluwafemi became defense counsel for Gene Gotti and John Carneglia in their unsuccessful efforts to secure the sequestered names and addresses of trial jurors. Defense counsel
. See Wise, Lawyers Discuss What to Do About Rudeness of Judges (NYLJ, Oct. 30, 1995, at 1, col 3). During a panel discussion at the Association of the Bar of the City of New York on the subject of rude Judges, United States District Court Judge (ED NY) Sterling Johnson said “lawyers are afraid to make complaints for fear of running up against the ‘thin black line,’ the judicial equivalent of the ‘thin blue line’ where police officers rally to support one another.” (Id., at 5, col 2.)
In that same panel discussion, Robert H. Tembeckjian, Deputy Chief Counsel of the Judicial Conduct Commission, made a similar point: “lawyers have an ‘economic interest in getting along and going along. They do not want to be identified as rabblerousers.’ ” (Ibid.)
. See, Matter of Mogil, NYLJ, Feb. 26, 1996, at 6, col 4 (where a County Court Judge was removed from the Bench for engaging in a needless, pernicious, vituperative campaign against a defense attorney and for repeatedly lying under oath); Matter of Mogil, 88 NY2d 749 (1996); see also, Siegel, Vendetta Against Lawyer, Both Overt and Secretive, and Lying to Commis
. The Administrative Judge for all our criminal courts in the county is Honorable Ira H. Wexner. This court is a local criminal court. (See, CPL 10.10 [3] [d], Eel.)