A Brooklyn judge, one of three judges suing the state to force a pay raise, recused himself Tuesday from the long-running, bitter legal battle for control of the Hasidic Satmar community and its real estate, business and other interests worth hundreds of millions of dollars.
For the second time in three months, Justice Arthur Schack recused himself because a legislator is of counsel to a firm representing a party before him. As a litigant in the pay raise lawsuit, Justice Schack concluded, recusal "is necessary to avoid any speculation as to the rationale for my rulings."
The judge's
ruling will require the assignment of a new judge to handle the five Satmar-related cases he inherited in January 2005 with the retirement of Justice Melvin Barasch. The oldest of the cases was filed in 2002.
The decision will be published Wednesday.
In addition, the Court of Appeals heard oral argument Tuesday in a sixth case. The Court is considering rulings by Justice Barasch and the Appellate Division, Second Department, that the courts should not become involved in the internal affairs of a religious body. In the event of a reversal, that case too would require a different Brooklyn judge.
David Bookstaver, spokesman for the Office of Court Administration, said yesterday that Justice Ariel E. Belen the administrative judge for civil cases in Brooklyn Supreme Court, is out of town this week and will reassign the case as soon as he returns.
Jeffrey D. Buss, one of the main lawyers representing the Satmar faction aligned with Rabbi Aaron Teitelbaum, who has a congregation in Kiryas Joel, Orange County, said that "while no one welcomes it, the reassignment would just occasion some additional delay."
However, Mr. Buss, of Smith Buss & Jacobs in Yonkers, said it is possible that the Court of Appeals' ruling in the case before it,
Matter of Congregation Yetev Lev D'Satmar Inc., 142, will put an end to all the litigation. In any event, he added, "there has been no fact finding" in the postponed cases and no live witnesses have testified at either a deposition or in a court hearing.
Scott E. Mollen of Herrick Feinstein, who represents the Satmar faction aligned with Rabbi Zalman Teitelbaum, whose congregation is in Williamsburg, declined to comment.
Rabbi Zalman Teitelbaum and Rabbi Aaron Teitelbaum are both sons of the Grand Rebbe Moses Teitelbaum, who died in 2006.
In his recusal ruling, Justice Schack removed himself because a lawyer connected to one of the firms involved in the Satmar litigation was elected to the state Senate in a special election in February.
That senator, Craig M. Johnson, D-Nassau, who is of counsel to Jaspan Hoffman Schlesinger in Garden City, voted against a pay raise for the judges when a measure was voted on in the Senate, Justice Schack noted.
The judge reasoned that a ruling in favor of the client represented by Jaspan Hoffman could be construed as "an attempt to curry favor with Senator Johnson" and his legislative colleagues, while a ruling against his firm's client might be viewed as "retaliation against the Legislature by an aggrieved judge."
Mr. Johnson is not personally involved in the litigation.
In August, Justice Schack cited similar reasons for recusing himself from another case where an assemblyman was of counsel (
NYLJ, Aug. 31).
The two recusals come in the wake of
an ethics opinion issued by the court system's Advisory Committee on Judicial Ethics, which concluded that judges should not recuse themselves from cases where state legislators or members of their firms are representing parties before them solely because of the long-standing stalemate between the governor and lawmakers over judicial pay raises.
Then-Chief Administrative Judge Jonathan Lippman who is now presiding justice of the Appellate Division, First Department, had requested the opinion, 07-25, after receiving inquiries from judges as to whether recusal was ethical in such cases. He also received a letter from Senator John A. DeFrancisco, R-Syracuse, questioning whether recusals based on inaction on pay raise legislation were ethical
The opinion advised that judges should not recuse themselves "solely" because of the pay raise issue, leaving open the possibility that Justice Schack's status as a plaintiff in the raise lawsuit,
Maron v. Silver, 4108/07, would make the opinion inapplicable to him.
Maron has been fully briefed, and has been submitted to Albany Justice Thomas J. McNamara for a decision.
Robert H. Tembeckjian, the administrator of the Commission on Judicial Conduct expressed doubt yesterday that opinion 07-05 would apply to Justice Schack because of his status as a litigant in a pay case.
Mr. Tembeckjian said that although the opinion did not specifically address a situation in which a judge is a plaintiff in a pay suit, "it could be what the opinion refers to as an 'additional factor' that might justify recusal."
He added, "On its face, and without more, such a discretionary judicial decision would not be a matter for the commission."
