New York Judge Censured for Recusals Over Lack of Pay Raise

By Joel Stashenko  December 29, 2009

ALBANY – A western New York judge should be censured for trying to organize other judges to recuse themselves from cases involving the law firms of state legislators, who have denied the judiciary a pay raise since 1999, the Commission on Judicial Conduct said today.

Cattaraugus County Judge Larry M. Himelein (See Profile), one of the most vocal critics from the bench of the long pay drought for judges entered into the stipulated agreement with the commission on the censure. The panel voted 9-0 to accept the settlement.

Judge Himelein disqualified himself from 11 cases involving legislators or firms employing state lawmakers in a 10-month period beginning in September 2007, according to the commission. In e-mails to his colleagues, the judge acknowledged that he did so as a “weapon” 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.

Judge Himelein recused himself in matters involving Hiscock & Barclay, whose staff attorneys include Senator Neil Breslin, D-Albany, and Assemblyman Will Barclay, R-Pulaski, and also Harris Beach.

The commission’s ruling said Judge Himelein aggravated his conduct by writing a series of electronic mails to other state judges in which he belittled Assembly Speaker Sheldon Speaker, D-Manhattan, as a “slug” and state legislators in general as “clowns” and mocked other judges who declined to recuse themselves and join in a boycott of cases involving firms employing lawmakers.

“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.

Judge Himelein argued in letters he sent to Hiscock & Barclay and other firms that he would recuse himself in matters involving their cases because he considered himself conflicted by the pay raise dispute and the contribution he had made to the legal defense of one of the three cases in which the judiciary is suing the Legislature and the governor to force a court-ordered pay increase.

Court administrators warned judges that to recuse themselves from cases involving legislator-lawyers based solely on judges’ indignation over the lack of a pay raise was in violation of judicial canons and subjected judges to potential sanctions (NYLJ, May 13, 2008).

Judge Himelein, a former district attorney, also hears cases on Family Court, Surrogate’s Court and state Supreme Court benches in rural Cattaraugus County.

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