From the decision of the New York Court of Appeals, I have learnt, with astonishment, that the New York Court system allegedly tries to "purge" judicial bias, and even appearance of such bias from its system.
To support that interesting contention, the court makes references to multiple rules.
"Because this is a constitutional matter, the People's argument that County Court committed no statutory violation misses the mark. In any case, while there currently exists no explicit statutory or constitutional provision in New York prohibiting judges from reviewing their own judgments on appeal,[FN1] our laws and court rules have long sought to purge actual bias and the possibility of bias from our courtrooms (see e.g. Judiciary Law § 14 ["A judge shall not [*4]sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which [the judge] has been attorney or counsel, or in which [the judge] is interested, or if . . . related by consanguinity or affinity to any party to the controversy within the sixth degree."]; 22 NYCRR 100.2 ["A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities[.]"]; 22 NYCRR 3[E] ["A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."]). Although there was no evidence of partiality here, due process must still safeguard the appearance of impartiality to promote public confidence in the courts."
The New York State Court of Appeals obviously forgot to mention, trying to keep face in an absolutely atrocious situation when a judge refused to recuse from reviewing an appeal from his own decision (which he had to do under both Judiciary Law 14 and 22 NYCRR 100.2 and 22 NYCRR 3(e)(1)) that all of these three authorities they cite to:
Judiciary Law 14;
22 NYCRR 100.2;
22 NYCRR 3 (e)(1)
are stillborn provisions, because:
- there is no mechanism of enforcement of these provisions in the State of New York but a motion to recuse;
- the motion to recuse is reviewed by the same judge who is sought to be recused;
- judges who are sought to be recused routinely punish attorneys and parties for making such motions;
- attorneys are stripped of their law licenses for making such motions - see cases of John Aretakis in 2008, suspension for criticism of a judge in criminal proceedings, and of myself, suspension for criticism of a judge in motions to recuse in civil proceedings in 2015 - different methods were used in civil and criminal proceedings, but the result was the same, suspension of attorney's law licenses based on sanctions of a judge disgruntled by a motion to recuse,
- despite mandatory language of all three of these rules ("shall", "shall not"), courts deem it within the "discretion" of the very judge whose recusal is sought to decide whether to recuse or not, after "searching his own conscience".
- what constitutes the judge's "interest" in the case under Judiciary Law 14 is interpreted by judges in favor of judges in an extremely permissive way - you will never be able to prove a disqualifying "interest", no matter how common sense it would be;
- as to disqualifying "consanguinity or affinity" "within the sixth degree" in accordance with Judiciary Law 14 - guess what, judges do not publish their family trees and do not make disclosures as to who they befriend, date, or sleep with, and many judges and their spouses have different last names, and I wonder why would that be but to make detection of such an association more difficult.