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White Plains Law Journal. By John F. Bailey. February 11, 2003: Councilman Glen Hockley has now been in office since March, 2002, just about 11 months now, and Thursday’s latest move (WPCNR, February 7), could extend the process perhaps another four months to a year.
The remedy of quo warranto as being the speedy process his attorney, Adam Bradley championed 11 months ago, is becoming clearly not speedy at all. It took the Attorney General seven months to bring a quo warranto proceeding after the Delgado legal team (who eschewed quo warranto in the first place, adding to the delay), marshalled the evidence for a quo warranto proceeding.
First there was the Hockley effort to throw out the concept of looking at the voting machine, which Judge Francis Nicolai refused to go along with, saying, “I wear these robes to right wrongs.” The judge ordered the machine to be examined. Then, when all present examining machine (19 persons) agreed it had jammed, the Judge called for a new election in District 18.
The Hockley camp objected to this as the wrong procedure violating Article 16 of the Election Law and not within the scope of the Election Law. The Appellate Court in Brooklyn threw that appeal out, and Hockley took it to the Court of Appeals, which based on off-the-record remarks WPCNR has been told, upheld Hockley’s appeal because “it was afraid of having the courts swamped with election cases.”
Enter the Innocent.
Until now, the only persons hurt by the long Hockley-Delgado saga, have been the voters of White Plains District 18, but with Mr. Hockley’s new motion to dismiss, two others stand to be hurt personally: Diane Lundin, Judge Francis Nicolai’s law clerk, and Judge Nicolai himself.
Diane Lundin, an innocent professional, is playing an unwitting new role, by applying for the vacant White Plains City Judgeship. She has given the Hockley camp a new life.
“Cloud of Questionmarks”
The Hockley attorneys imply in their new motion for recusal of Judge Nicolai, that Ms. Lundin’s application for the judgeship creates a conflict of interest for Judge Nicolai.
The brief, written by new player in the Hockley lineup, Elizabeth Shollenberger, noted as assistant to Counsel Thomas Abinanti, takes note that Judge Nicolai himself announced Ms. Lundin’s application at the January 23 Preliminary Conference, and said he would entertain any questions for recusal at the next convening on the matter.
Hockley’s motion to dismiss brings Ms. Lundin in as a reluctant player putting her in an uncomfortable position as her application for a judgeship with the city is considered, and raises this question in its brief:
The brief muses that Mr. Hockley and Judge Nicolai (to whom according to the brief, Ms. Lundin is described as “a key member of his staff, he relies on professional expertise” would be open to question on motivations in light of the Lundin judgeship candidacy:
Whatever action Mr. Hockley takes on Ms. Lundin’s candidacy (or,indeed, if he should sit on his hands, allowing others to make the decision, observers could conclude that Judge Nicolai’s decision in this case were affected by Mr. Hockley’s action or reaction on Ms. Lundin’s candidacy, or on the other side of the coin, could conclude Mr. Hockley’s votes as a Council Member were influenced by this policy matter.
The brief raises further questions:
Not only would the motivations of both the Council Member (Hockley) and the Judge be thrown into question if Ms. Lundin succeeds in ascending to the bench (either by filling this current vacancy or by appointment later in 2003 to another anticipated vacancy), she would be starting her judicial career under a cloud of question marks – observers could speculate on the motivation for her appointment.”
The section on Lundin concludes that Judge Nicolai recusing himself would promote public confidence in the integrity and impartiality of the judiciary, and allow Mr. Hockley to perform the functions of his council office without concern about the appearance or reality of undue influence.
What about the Lundin Viewpoint?
From Ms. Lundin’s standpoint, she could question the Mayor’s Selection Committee if they do not select her, because Mr. Hockley has raised this issue. If she is not selected, Ms. Lundin might assume that she was unfairly excluded from consideration by the Mayor’s Committee, because of her employment with the Hockley judge. She might have a legitimate complaint against Mr. Hockley and his attorneys for prejudicing the Mayor’s Selection Committee against her, giving them a reason not to select her for the city judgeship.
The sad situation Ms. Lundin finds herself is due to Mr. Hockley’s legal bid to get another judge to consider his case all over again, with no thought at all to the position in which her mention in his motion places Ms. Lundin.
There are conflicts of interest everywhere, it seems. Judge Nicolai did not have a problem with her application, and brought it to everyone’s attention at the Preliminary Hearing.
The brief rests its motion to recuse , in part, reguarding the Lundin question on the judicial law prohibiting the appearance of impropriety.”
Of course, considering that approximately 40 or more persons have applied for that judgeship, it would be very curious if Mayor Delfino’s committee selected her. The odds are long.
What is even more curious is that Mr. Hockley is quoted as saying it would be a conflict of interest for him to vote on her if he was sitting on the council. Does this mean that Mr. Hockley would vote against her? Or vote for her because her application furthered his case? Or that, if Mr. Delgado were returned to the council by Judge Nicolai, perhaps Mr. Delgado might vote against Ms. Lundin as a judgeship in a vindictive move?
But, does Ms. Lundin’s application become a conflict of interest for anyone until Mayor Delfino’s committee selects her from the 50 or so applicants? Obviously, in order for Ms. Lundin to figure as a conflict of interest, we just have to wait and see until the Committee makes its recommendation. So Judge Nicolai might very well simply declare a wait and see attitude, and not rule on the motion.
Hockley Will Not Abdicate
Of course, now that a quo warranto suit has been joined, Mr. Hockley could resolve this problem of having to vote on Ms. Lundin’s appointment, or any appointment by taking a leave of absence from the Common Council, until it is resolved. He was not appointed to the council until after the original lawsuit was resolved.
WPCNR asked Mr. Hockley last week if he would consider resigning from his council seat and abdicating in favor of Mr. Delgado as a good will gesture to bring the matter to a close, and he said he absolutely would not. Of course, the Common Council President, Benjamin Boykin, would then have the responsibility of appointing Mr. Delgado.
Journal-News, Quote of Judge Nicolai at issue.
Section (b) of the motion moves that Judge Nicolai recuse himself for commenting “I don’t see any reason to recuse myself” when asked for comment by Journal New reporter Susan Elan about the quo warranto proceeding in which Attorney General spokesperson Marc Violette noted that the Attorney General had requested Nicolai be given the case for an efficient resolution to the case.
According to Ms. Shollenberger’s brief, Nicolai violated The Rules of the Chief Administrator of the Courts Governing Judicial Conduct, which read: A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.
The brief points out that if the quote is accurate, it appears that Judge Nicolai had already been considering the possibility of recusing himself, and had made up his mind not to recuse. This, the brief maintains, would indicate that Judge Nicolai has violated this rule of judicial conduct, and the brief is maintaining this “preprejudiced position” as a second reason for Judge Nicolai to recuse himself.
Judge accused of preducial attitude towards the case
Ms. Shollenberger’s motion, continues to her third argument for Judge Nicolai to recuse himself: statements the Judge made in the Preliminary Conference indicating he was not inclined to reexamine the evidence and previous findings of fact.
Her argument draws on the definition of quo warranto : “entitling the defendant the right of discovery, including the right to a jury trial. The returns and certificates are deemed only prima facie evidence and the parties are permitted to go behind them and show what took place at the election, the number of votes cast…and in controversies of this character that they will be shown by any available legal evidence.
Ms. Shollenberger contends that Judge Nicolai both in the original Article 16 proceeding last year and in the Preliminary Conference of January 23, “has prejudiced the scope and outcome of this proceeding.”
She cites Judge Nicolai’s remarks at the January 23 conference, where he mused on what the effect was of the Attorney General’s finding that Mr. Delgado won the election. Shollenberger argues that the attorney general’s “finding” is akin to a District Attorney’s fact-finding in a case, and she concludes, “only a jury can act as the finder of fact in this proceeding.”
She notes the Judge listened to Mr. Abinanti’s request for discovery and the notion of accepting the attorney general’s findings as fact, and the judge responded, “There are no questions of fact here.” She quotes Judge Nicolai’s retort to Mr. Abinanti’s request for discovery:
I don’t know what there is to discover. There cannot be any question in any reasonable, logical, clear-thinking person that this machine was not broken, can’t be. Nineteen people came in and said that.
She notes his subsequent remarks to Thomas Abinanti “if you waste my time, I’m going to sanction you. Do not make the simple complicated, gentlemen. I sense this may be the goal here. I won’t have it. We’re in recess.”
The brief notes “A judge does not customarily state that there are no disputed factual issues in a plenary action even before a defendant has answered . Judge Nicolai’s view of this proceeding is colored by his having presided over the Article 16 case.”
“Narrow Prism of Facts”
Ms. Shollenberger underscores the point, noting also, that Judge Nicolai appears “impatient with any factual or legal issues not directly connected with one voting machine in one election district and that has prejudged the issues herein, and for this additional reason, Mr. Hockley moves herein for his recusal.”
Citing People vs. Zapacosta, Shollenberger points out that the bench in ruling that the judge should have recused himself because of prior knowledge of a case involving the defendant, was also aware that the defendant was faced with the option of choosing a jury trial or a trial in which the judge had that prior knowledge. Shollenberger accuses Nicolai of viewing the case through “the narrow prism of facts” he encountered in the Article 16 Delgado vs. Suderland case. In People vs. Zapacosta, according to the brief the defendant confessed to a crime, then implicated the defendant who was then tried by the same judge based on testimony of the previous defendant’s confession.
The Quo Warranto Marathon Descends into Murky Gloom thanks to The Court of Appeals.
The irony at work here is that if a new election were held in White Plains today, Mr. Hockley, based on his performance on the Common Council, his walkabouts, his voting record, and his 11 months of accomplishment, might very well defeat Mr. Delgado in District 18, and he might certainly win if the election were held citywide.
Mr. Hockley, by refusing to go along with an election in the first place, now with this motion to recuse, shows he was never interested in finding out the will of the voters ever. It is all about keeping his seat.
By possibly compromising an honest effort of Diane Lundin to further her career, as a means to get Judge Nicolai thrown off the case, Mr. Hockley’s legal team is embarrassing Ms. Lundin, making her an innocent victim of this exercise in election law semantics and procedures.
Speaking of Procedures: Did Attorney General err by requesting Judge Nicolai?
In another thought on this matter, this entire conflict of interest question has been precipitated by the Attorney General’s specifically asking for Judge Nicolai to consider the case.
Perhaps this was not the most brilliant thing for the attorney general’s office to suggest.
A Legacy of Dubious Effectiveness.
The questioning of Judge Francis Nicolai, the interference with Ms. Lundin’s career to buttress a case, the questioning of a reporter’s asking a judge for comment, all have been the net effect of the New York State Court of Appeals refusing to interpret Election Law (allowing the courts to fashion a remedy), in the original Delgado-Sunderland appeal last March.
The New York State Court of Appeals Justices apparently wear their robes for different reasons than Judge Nicolai does.
Judge Nicolai’s reason for wearing his robes was heard by this reporter in December of 2002, when I heard him say as he touched his black robed sleeve, last December “I wear these robes to right wrongs.”
