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The new judicial ‘recusal’ law: A solution seeking a problem?

By: Special to The Daily Record , Hon. Richard Dollinger//February 19, 2021

The new judicial ‘recusal’ law: A solution seeking a problem?

By: Special to The Daily Record , Hon. Richard Dollinger//February 19, 2021//

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Justice Richard A. Dollinger
Justice Richard A. Dollinger

As any former member of the state Legislature will confess, bills get passed each year and signed into law that represent a perceived solution desperately seeking a widespread problem.

The newly enacted law, often ill defined and lacking any adequate enforcement mechanism, gets tucked into existing case books and waits for the unwary to run afoul of its reach.

The latest eligible entry into that bin of solutions-seeking-problems may be the new amendment to the Judiciary Law requiring judges to give a “reason” for any recusal in any case before the judge.

The bill became law and took effect in December, 2020. It passed the state Assembly on a party line voice vote. It passed the Senate without opposition and was signed by Governor Cuomo, but only after the Office of Court Administration and a list of judicial associations opposed it.

In the Assembly debate, a former city court judge quizzed the Assembly sponsor, who acknowledged that a judge, if considering recusal, could simply explain that the decision is of a “deeply personal” nature and the judge would not have to disclose the specific reasons for it.

The authors of the statute focused on two instances in which judges, confronting apparently high profile cases on Long Island and Buffalo, recused themselves but failed to specify the reason for their decisions. The sponsor’s memorandum suggests that without an “order specifically justifying the recusal,” the public cannot tell “whether the disqualification was really necessary.” The sponsors conclude that the public should know why judges decline to hear cases.

The fact that judges across the state asked Governor Cuomo to veto the measure gives some credence to the theory that the new law was based more on two isolated instances of judicial recusal in high-profile cases rather than a wholesale problem with judicial decision making or the judiciary’s constitutionally protected independence.

The new law requires that any judge who recuses themselves “sitting in or taking any part in any decision . . . shall provide the reason for such recusal in writing” or “on the record.” While that broad language seems to create an “every instance” requirement for judicial confession, the new law carves out an exception: if the recusal “may result in embarrassment” or “is of a personal nature” affecting the judge or his family, then no reason is required.

The law provides no definitions of critical terms. The words “sitting in” seem misplaced: does that term include matters assigned to a judge from a random assignment “wheel,” such as is common in the 7th Judicial District? When a judge “sits” on a matter also needs some definition: for example, is an appellate judge, assigned to report before an argument on a case which he recognizes as creating a conflict of interest, required to put the decision to forego the assignment in writing? If so, where is it filed and how does it become a part of “the record?”

The same analysis applies to the term “embarrassment.” The word is undefined and presumably it is a term subject to an individual judge’s determination. In providing a reason for recusal, can a judge simply invoke the statutory word — “embarrassment” — without any further explanation? Finally, there is no definition of what constitutes a “personal nature,” which could implicate hundreds of potential explanations for elected judges who have broad family and community contacts.

In implementing this new law, the Legislature appears to be unfamiliar with the rubric of recusal contained in the state Judiciary Law and the decades of opinions — from a variety of well-established sources — that define when recusal is required in contested legal matters. The Advisory Committee on Judicial Ethics has a broad litany of advisory opinions defining judicial choices in recusal cases. See e.g., Opin. 7-149 (no obligation to disclose reasons for recusal when an attorney reported for “arguably unprofessional conduct” appears before the judge); Opin. 98-134 (recusal is discretionary in unrelated action if the judge’s ruling against the same party was based primarily upon the judge’s assessment of the party’s credibility in that earlier action).

The Commission on Judicial Conduct has routinely disciplined judges for the exact opposite of what the new law dictates: failing to disclose conflicts and recuse themselves when their impartiality is in doubt. See Matter of McGuire, CJC Report, 2020; Matter of Young, 19 N.Y.3d 621 (2012) (judge removed for failing to disclose conflicts with parties); Matter of Robert, 1997 NYSCJC Annual Report 127, 130 (judge sanctioned for presiding in cases involving friends or others with close associations, even when there is no evidence of favoritism).

The New York courts, from the Court of Appeals on down through countless determinations, have issued similar guidance. Absent statutory legal disqualification, a “trial judge is the sole arbiter on the issue of recusal.” York v. York, 22 N.Y.3d 1051, 1051 (2014) (finding court providently exercised discretion and upholding denial of recusal). In fact, if recent case law demonstrates anything, it may attest to a prevalent notion that aggressive attorneys are seemingly using recusal motions as a hybrid form of forum shopping or, as the Fourth Department recently noted, an attempt to obtain a second bite of the apple when a judge issues rulings adverse to one party. See e.g., Tripi v Alabiso, 134 N.Y.S.3d 843 (4th Dept 2020); see also Brooks v. Greene, 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 (4th Dep’t 2017) (no recusal necessary because record did not support bias influenced rulings).

The reaction of the Office of Court Administration (OCA) seems to expand the new statute’s reach. A proposed order circulated by OCA suggests judges, contemplating recusal under the rules of ethics, should “check a box” to delineate the specific reason for their recusal. There is nothing in the statute or the legislative debate that suggests such a detailed “reason” is required. The word “reason” is not defined in the statute and nothing suggests that the authors of this law intended any broader interpretation of that term than is found in the myriad judicial decisions and advisory ethical opinions already well known in the judiciary.

The legislation seems to ignore that the most important criteria for recusal by a judge is that the judge, in their sole determination, believes that they cannot be fair and impartial in a matter, for whatever reason. If a judge reaches that conclusion, recusal is mandatory as a matter of law and ethics.

It would seem that any judge, concluding that they should be recused from any matter, can simply state that they “believe that they cannot be fair and impartial.” No further reason is required by this law. A judge, convinced that they will lack impartiality, need not confess to any “embarrassment” or any “personal reason affecting the judge.”

Finally, the new law lacks any enforcement mechanism and any reasonable practitioner would be hard pressed to even conceive of one. If a judge declines to offer a reason or simply states “the Court cannot be impartial,” or better yet, says the disclosure would be “embarrassing” and not provide a further explanation, what is a litigant to do? Can a litigant force a judge to hear a case in which the judge declares they cannot be impartial but one litigant — or even both — believes they can be impartial? Can a litigant challenge a judge’s proffered “reason” for recusal? The only answer for New York judges to that question: stay tuned.

This new law — lacking definitions, an enforcement mechanism and ignoring decades of judicial refinement and ethical guidance of when recusal is required — seems, after analysis, to be a solution to a remote, seldom occurring almost hypothetical problem best left to the experience and individual conscience of New York’s judges.

Richard A. Dollinger, a former member of the state Senate, is a current member of the New York Court of Claims and an acting Supreme Court Justice in the Seventh Judicial District. The views expressed herein are his own.

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