The judge who is making a man in a custody battle with his ex-wife prove that he qualifies for an attorney at taxpayer expense has denied a request that he recuse himself from the case.
Acting state Supreme Court Justice Richard A. Dollinger ruled in October that he will hold a hearing where Patrick Carney must show why the judge should not “impute” potential income based on Carney’s education and supposed skills.
Carney has a master’s degree in mathematics and a bachelor’s degree in microelectrical engineering and has taught at numerous colleges for short periods. He pays no child support and lives with his parents while enrolled in a doctorate program for mathematics at the State University of New York at Binghamton.
In his Oct. 4 decision Dollinger said that he not only “had the power to review an applicant’s claim that they are eligible for appointed counsel” but that he could impute income for the defendant based on his education and skills.
“He must show that he is incapable of earning an amount in (excess) of the income-based criteria for appointment of counsel,” Dollinger wrote in his more recent decision, dated Nov. 10, in which he denied the motion to recuse himself.
Dollinger wrote in his October decision that Carney “has misled the court previously, and, on several occasions, simply been untruthful.” In his latest decision, Dollinger wrote that there was a “shadow of skepticism” about Carney’s past statements.
Dollinger appointed the Monroe County Public Defender’s Office to represent Carney just in the hearing set for Thursday.
Because of Dollinger’s previous statements about Carney, the public defender’s office filed a motion asking Dollinger to recuse himself.
“The court has no personal bias against the applicant,” Dollinger wrote in the Nov. 10 decision.
“This court has taken a series of unprecedented steps to preserve the integrity of the application process. This court could have simply denied the application for appointment of counsel, without a hearing,” Dollinger wrote.
Dollinger also pointed out that he named the public defender to represent Carney in the hearing, which he was not required to do. And he appointed a special counsel, attorney Paul Meyer, to question Carney about his potential income capacity, something Dollinger said he could have done on his own.
“This court concludes that it can be impartial and conduct a fair hearing on the applicant’s eligibility for a public-funded attorney,” Dollinger wrote.
Part of the public defender’s argument is that Dollinger demonstrated bias by holding a one-of-a-kind proceeding which shows Carney’s case is being handled differently from others.
“The argument is partly correct on both counts,” Dollinger wrote in his decision.
“The hearing required by this court is a ‘first-of-its-kind’ hearing, for which the court could find no precedent,” he wrote.
Dollinger said he is requiring the hearing in Carney’s case because he is “highly skilled and talented” and the hearing is intended to determine if Carney could use “those apparently untapped talents” to earn enough money for an attorney.
To qualify for an appointed attorney, Carney must show “that it would be impractical and unjust to impute income to him equivalent to an income commensurate with his skills and education, and furthermore that he has engaged in a diligent search for employment,” Dollinger wrote in his October decision.
Meyer and the public defender’s office declined to comment on the case.
At the end of the hearing, Dollinger could deny assigned counsel for Carney; assign the public defender to his case; or set up a reimbursement plan for Carney to cover the cost of an assigned counsel.