You shall not commit a perversion of justice; you shall not favor the poor and you shall not honor the great; with righteousness shall you judge your fellow.” Vayikra (Leviticus) 19:15.

“We (judges) are commanded not to tilt the judgment against one of the litigants.” Sefer Hachinuch (Book of Mitzvot) Commentary to Mitzvah 81.

In my practice of matrimonial law, clients will often express a dissatisfaction with the judge assigned to their case. In some circumstances, neither party is happy with the judicial rulings made. These litigants inquire whether the judge can be replaced. The process of removing a judge (known as “recusal”) is discussed below.

Automatic Recusal

Section 14 of the New York State Judiciary Law addresses those situations where a judge is automatically disqualified. Most notably is the situation where the judge is related to one of the parties. More commonly, a litigant is faced not with an automatic disqualification, but one which is subject to the discretion of the court.

Discretionary Recusal

It is interesting to note that the initial determination as to whether a judge is removed is to be made by that judge himself. If a party is unhappy with the judge’s choice not to step down from the case, an appeal must be taken. The standard for determining whether a discretionary recusal is in order is succinctly set forth in a divorce case known as Ashmore v. Ashmore. The appeals court in this matter indicated that there must be a showing that the judge has a personal interest in the outcome of the case, or that a clash in judicial roles exists. Two common theories under which discretionary recusal is sought is that either: (a) the judge has a conflict of interest; or (b) the judge’s attitude reflects bias against one side of the case.

Cases Alleging Conflict of Interest

Many of the cases deciding claims of a conflict have resulted in an unsuccessful attempt to remove the judge.

In Silber v. Silber, a Nassau County divorce proceeding, the judge learned in the middle of trial that his relative was the husband’s babysitter. Over the objection of the husband, the judge chose to remove himself from the case. The wife appealed and won. Here., the appellate court found no proof that this judge court not continue to oversee the parties’ case in an impartial manner.

Shepard v. Roll is the name of a custody case, where the judge indicated a familiarity with certain members of the husband’s family. The wife’s attempt to remove the judge failed. In rendering a decision on appeal, the appellate court noted that the judge’ conduct in the case was fair, and that the mother only raised her objection after the trial was concluded (I am assuming that she did not like the court’s decision after trial).

A recusal case out of New York County is entitled Siegfried v. Siegfried. In Siegfried, the wife’s complaint was that the husband intended to call a witness who belonged to the judge’s synagogue. The judge refused to recuse herself and indicated that she had no personal relationship with the witness. This decision survived appeal. The appeals court indicated that the trial judge had “examined her conscience” and reached an appropriate decision.

In Ruth v. Melens, the parties were battling over child support. Here, the father complained that the judge should have advised the parties that the mother’s attorney had previously served as the judge’s law clerk and should have recused herself. This argument likewise failed.

An interesting decision out of one of the courts in Western New York comes out of the case known as Mugas v. Mugas. In this matter, the judge advised the parties that he and his wife were social friends with the wife’s attorney and his spouse. The husband sought to have the judge disqualified. Eventually, the issue made its way to the appeals court, where a “split decision” was reached. The majority of appellate judges (whose opinion controlled) found no conflict of interest. However, one of the appellate judges disagreed and wrote his own opinion. It was this dissenting judge’s feeling that the trial judge should have declined the case, because a judge must avoid even “the appearance of Impropriety.”

Cases Involving Bias

Cases involving allegations of bias are also often difficult to establish. Some relevant court decisions appear below.

One case where the court’s disdain for a party was obvious is the Queens County divorce proceeding known as Janousek v. Janousek. Here there was no love lost between the judge and the husband, who was a parole officer. The judge repeatedly indicated her contempt for the husband. At times she referred to him as a discredit to his profession and an unfit father. The judge repeated expressed sympathy for the wife and anger toward the husband. Eventually the husband brought the matter to the appellate court, claiming that the trial judge was biased against him. The husband prevailed. The appeals court found that the trial judge was in fact biased against the husband. Disqualification was granted, and instructions were made to assign a new judge.

In Cohen v. Cohen, a Nassau County matter, the mother claimed that the judge was not fair to her. While her recusal motion was pending, the judge discussed the case with a newspaper reporter. This judge then denied the application for recusal. However, the appeals court disagreed. It found the judge’s behavior evidenced a lack of impartiality. The trial judge was removed, and a new judge was to be assigned.

In Matter of Trinity E. v. Monroe County Department of Human Services, the father made death threats against the judge. Notwithstanding these death threats, the judge chose to remain on the case, indicating that he could judge the case. On appeal, the judge was removed from the case. The appellate court did not think the judge could be impartial in light of the threats against his life.

In Khan v. Dolly, a custody case out of Queens, the mother’s attorney was suing the judge in a separate legal matter. The mother requested that the judge remove himself based upon bias. The judge disagreed, and he remained on the case. On appeal, this judge’s choice to remain on the case was upheld. The appellate court found no indication that the judge was biased against the mother, despite the fact that he had been sued by her attorney. Recusal was denied. The appeals court also agreed with the trial judge’s opinion that this lengthy custody matter needed to be concluded without further delay.

Yet another application for recusal based upon bias was made in the matrimonial case known as Forrestal v. Jonkman. One issue in this case was whether the father had interfered with the mother’s telephone access to the children while he was on vacation with them in a foreign country. During the course of the proceedings, the judge indicated that she had visited that country, and had experienced similar problems with its communication technology. The mother’s reaction was to assert that that the judge was siding with the father and should be disqualified. Recusal was denied both on the trial and appellate level, as there was no indication that the judge’s comments had influenced her decision.

In Leombruno v. Leombruno, the judge presiding over the divorce was a neighbor of the husband. Apparently, this judge had been involved a number of personal disputes with the husband, some of which involved police intervention. Although the judge refused to recuse himself, the appeals court found that he could not be impartial under such circumstances and needed to be replaced.

In Flanigan Smyth, several complaints of bias were made against the judge when problems arose over the scheduling of trial dates. Among the contentions made by the attorneys were that the judge disliked female lawyers and was prejudiced against older men (a group which included the father in this custody matter). In reviewing the trial judge’s decision to remain on the case, the appellate court found no indication of bias. Instead, it found that the difficulties in scheduling trial dates were caused by the onset of the holidays and the attorneys’ busy schedules.

Having practiced in this area for some time, I have a pretty good understanding of when to make a recusal motion and when not to. One of the things to be mindful of is that an unsuccessful motion results in the case being decided by the same judge you sought to disqualify. A professional jurist will hopefully realize that an attorney is merely trying to protect his client’s rights by seeking recusal. However, many believe that judges are only human, and may harbor resentment toward those who label him or her to be biased. Thus, it is generally believed that a recusal motion should be made only when there is a good possibility that it will b granted. To borrow a phrase from one Jack Barker (a central character on the HBO drama “Silicon Valley”) it can be said that “If you are going to shoot the king, you better be ……sure you kill him.”

By Mark Plaine, Esq.