[NYtenants-online] Shlomo Hagler: the Landlord's favorite judge

[Tenant]

NYtenants Online/TenantNet                                 9/3/03
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IN THIS ISSUE ...

1. Pro Bonos no Promo that Evicto-Judge Shlomo
2. Tenant activists attack Civil Court judge candidate (The Villager)
3. Text of letter of complaint re: conduct of Judge Hagler
4. Advisory Committee On Judicial Ethics, Opinion: 01-07

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THE LANDLORD'S JUDGE: BOUGHT UP TO HIS EYEBALLS

Call him Judge "S". It's sort of like watching the "X" files, but Judge 
Shlomo Hagler is real, unfortunately too real for his many victims as 
reported by tenant advocates and attorneys who consider him the worst judge 
in Housing Court.

Judge S. doesn't want you to know his first name. See: 
http://www.tenant.net/alerts/judges/2nddist2003/Hagler/Hagler1.JPG

That's just the start of the hidden nature of Judge Shlomo Hagler's current 
candidacy for New York Civil Court in Manhattan's Lower East Side 2nd 
Judicial District.

The funny thing about how judges are elected in New York is that they are 
required to campaign without making any meaningful statements, limiting 
their literature to innocuous claims of being 'Fair & Balanced.' Such 
assertions invite scrutiny (something we rarely see in court). Of course 
judges are human and have opinions - that is why, for better or worse, New 
York State deems that they be elected and also allows us to tell you the 
truth about Shlomo Hagler, the truth that he is desperate to keep hidden.

What matters is how this person, if elevated to NYC Civil Court, will 
conduct his office, if he truly will be fair and impartial or will he allow 
his prejudices (and campaign contributions) into the courtroom and will it 
adversely and unfairly affect tenants, especially those who are unrepresented.

While Civil Court does not focus on housing issues, many Civil Court judges 
are elevated to Supreme Court and later even to the Appellate Division, 
where overriding precedents are set for DHCR and Housing Court.

When the residents of Manhattan's LES decide to pull that lever on 
September 9th for the Democratic primary, we feel they should know 
something about a candidate other than their last name. If you live in 
Manhattan's Lower East Side, you might be eligible to vote in the primary. 
See the Judicial District map at 
http://www.tenant.net/alerts/judges/2nddist2003/judicial%20district%202nd%20map.jpg

Reports are coming in that Hagler is now plastering the Lower East Side 
with posters and flooding mail boxes with literature attempting to create 
the impression he is pro-tenant. This, of course, comes on the heels of an 
August 21, 2003 letter (see text below) signed by various tenant advocates 
complaining of Hagler's ethical violations. The letter deliberately 
concentrated on the specifics of his ethics violations. The signers felt 
that such specific ethical violations would continue (by Hagler or from 
anyone in his position, even a pro-tenant candidate) until someone says 
stop. When the letter was written, none of those who signed had endorsed 
any other candidate.

When a Housing Court judge is running for Civil Court, he/she is required 
to disclose and recuse when one party's lawyer (in this case landlord 
lawyers) are on the candidate's fundraising committee. It is not an option 
as Hagler told the Villager. Hagler's committee had 66 lawyers on it. Of 
these, 42 (or 64%) are well-known landlord attorneys. None are tenant 
lawyers. As far as we know, no tenants or tenant lawyers were asked to be 
on his committee. See: 
http://www.tenant.net/alerts/judges/2nddist2003/Hagler/hagler_invitation.pdf

We know of several cases since Hagler announced his candidacy where he has 
refused to disclose this conflict of interest and recuse himself. In one 
case, we know that a non-English-speaking and unrepresented tenant was 
evicted from her home -- and the landlord's attorney was on Hagler's 
fundraising committee. As Hagler's message is understood ... "wink, wink - 
you support me and I'll take care of your landlord client." Landlord 
lawyers know this and so do tenant advocates.

In another case, an unrepresented tenant learned of Hagler's cozy 
fundraising arrangements in late June and promptly made a motion for Hagler 
to recuse himself from her case. He had failed to disclose to her that her 
landlord's attorney was on Hagler's committee and had also given him 
campaign money. That the tenant's case started prior to Hagler's official 
announcement of his candidacy -- is irrelevant. Although the matter ended 
up being transferred, Hagler refused to recuse himself. The Hagler 
campaign's response to this tenant was, "she's crazy."

Moreover, Hagler's literature is full of deception creating the false 
impression he is an incumbent Civil Court Judge. This conduct is also 
prohibited by law.

So there is certainly sufficient meat to just complain about his conduct on 
and off the bench. But what is he hiding? Since the Villager article of 
August 27, 2003 appeared, tenants are coming out of the woodwork telling 
stories of extreme bias, questionable ethical conduct and rudeness at the 
hands of Housing Court Judge Shlomo Hagler. We hope to highlight some of 
these in a follow-up newsletter.

While no judge's record will be 100% one way or the other, the evidence we 
have seen and the complaints we have heard indicates Hagler's record is 
meant to reward landlords as much as possible. That he is now highlighting 
a few pro-tenant cases does not undermine this conclusion. Ruling for 
tenants prior to an election is an age-old trick by judges like Hagler. 
Many of his rampages against tenants are either off-the-record or in the 
form of forcing tenants to agree to horrible stipulations, thereby unlikely 
to be appealed. If a tenant can't afford an attorney in Housing Court, they 
certainly can't afford the high expense of the Appellate Courts.

"How many lives must you destroy?" was a question directly posed to Hagler 
by one of his recent victims as he was recently campaigning on the Lower 
East Side. He had no answer.

It's a good question to think about when voters go to the polls on 
September 9th to pick between Hagler and three opponents.

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TENANT ACTIVISTS ATTACK CIVIL COURT JUDGE CANDIDATE
By Lincoln Anderson
The Villager
August 27, 2003

With primary election day two weeks away, tenant activists are ratcheting 
up their assault on Shlomo Hagler, one of four candidates running for Civil 
Court Judge in the Second Municipal Court District.

A group of tenant attorneys and activists, who view Hagler as one of their 
nemeses on the bench, last week sent a letter to Fern Fisher, Civil Court 
supervising judge, and Ernesto Cavallo, Housing Court supervising judge, 
regarding “ethics concerns” about Hagler, currently a Housing Court judge. 
[See original letter at
http://www.tenant.net/alerts/judges/2nddist2003/Hagler/030821%20Hagler%20complaint.pdf 
]

The letter was signed by Judith Goldiner, a Legal Aid Society attorney; 
Sandra Russo, a Legal Services attorney; Harvey Epstein, of Housing 
Conservation Coordinators and chairperson of Community Board 3; Stephanie 
Townsend-Bakare, director of the Citywide Task Force on Housing Court; and 
John Fisher, director of TenantNet.

“We are extremely concerned about actions by Housing Court Judge Hagler, 
which violate the canons of judicial ethics,” the letter stated. 
“Specifically, Judge Hagler fails…to recuse himself when members of the 
committee to support Judge Hagler’s candidacy for Civil Court judge appear 
before him, and Judge Hagler’s Civil Court literature creates the erroneous 
impression that he is currently a Civil Court judge…. We believe that both 
actions require disciplinary action.”

In early June 2003, Friends of Judge Hagler issued an invitation for a June 
19 fundraising cocktail reception at the Embassy Suites Hotel. The 
invitation listed 66 individuals as members of Judge Hagler’s campaign 
committee. Forty-two of these, or 64 percent, are attorneys who represent 
landlords in Housing Court who appear before Judge Hagler on a regular 
basis, the tenant activists claim.

“Over the last few months, Judge Hagler has failed to advise litigants when 
members of the committee to support his candidacy appear before him and has 
failed…to recuse himself in these cases…. Most members of Judge Hagler’s 
nominating committee are attorneys who appear before him regularly. In 
addition, he has received a substantial number of donations from firms 
whose partners and associates appear before him regularly. Nonetheless, 
Judge Hagler has failed to disclose the potential conflict and has failed 
to recuse himself.”

Fisher of TenantNet said there are potentially up to three cases that came 
before Hagler that raise concern. In one case, an eviction proceeding 
against a woman named Thea Halo, that came before him on July 16, Hagler 
did not recuse himself, but did transfer the case to another judge; 
according to Fisher, Hagler had an obligation to reveal his potential 
conflict and recuse himself in this case.

Second, the tenant activists charge, Hagler’s campaign literature is 
misleading, because he is shown wearing judicial robes and identified as 
“Judge S. Hagler.” This creates the impression that he’s a sitting Civil 
Court judge, giving him an “unfair advantage,” they say.

Fisher of TenantNet said Hagler is considered a pro-landlord attorney.

“If he walks like a duck, if he quacks like a duck, he’s a duck,” Fisher 
said. “This guy is considered one of the absolute worst Housing Court 
judges and he’s not fit to be elevated [to Civil Court].”

But Michael Oliva, Hagler’s campaign manager, blasted the accusations in 
the letter to the supervising judges as “a complete lie. There’s one case 
that a woman is complaining about. The woman complaining has made 
complaints about every single judge on the court,” he said.

Oliva further added that Halo’s case first came before Hagler three months 
before the formation of the campaign committee and that the court date in 
question was a return date before Hagler. Late yesterday afternoon, Oliva 
also said that he had received a letter from Daniel L. Greenberg, president 
and attorney in chief of the Legal Aid Society, saying that Greenberg 
disproved of the fact that the letter the five activists and attorneys sent 
questioning Hagler’s ethics was on Legal Aid Society letterhead. Greenberg, 
according to Oliva, said he did not condone using the letterhead and that 
Legal Aid did not endorse the letter. The Villager was unable to confirm 
this letter’s existence as of press time. In addition, Oliva charged that 
Harvey Epstein, one of the signatories on the letter critical of Hagler, is 
on the election committee of Frank Nervo, one of the other three candidates 
in the Civil Court race.

Oliva said Hagler has taken a leave of absence since Aug. 1, so he is not 
issuing rulings on any cases where he might have a conflict of interest.

As for Hagler wearing judicial robes and with a gavel resting by his hand 
on his campaign literature, Oliva said there’s nothing improper about that.

“That’s the idea,” he said. “That’s our strategy. Housing Court is a part 
of Criminal Court. He’s not an incumbent. He’s running as a Housing Court 
judge that’s running for Civil Court judge. It’s not a liability. We think 
it’s an advantage, and we’re going to use it as much as we can in the race.”

Added Hank Sheinkopf, a campaign consultant for Hagler, “He is a fair, 
unbiased and unbuyable judge. To insure that his standard of probity [is 
upheld], he has taken a leave from the bench.” Oliva added that Hagler has 
never had a ruling reversed. “I invite you to find another judge that has 
that record,” Oliva said.

But Fisher said Hagler’s failure to recuse himself from cases where it is 
called for is an extremely serious issue. “We’re concerned about the 
integrity of the system,” Fisher said. “There are tough questions that need 
to be asked about whether this guy should be on the bench.”

Although he wasn’t a signatory to the letter sent by the five tenant 
activists and attorneys to the supervising judges about Hagler, attorney 
Jack Lester, well known Downtown for representing community groups on 
quality of life lawsuits, said from his time around the courts he knows 
Judge Hagler to be “pro-landlord. That’s the buzz around the building,” he 
said.

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LETTER OF COMPLAINT RE: JUDGE SHLOMO HAGLER (August 21, 2003)

Hon. Fern Fisher
Supervising Judge of the Civil Court
100 Centre Street
New York, NY 10013

Hon. Ernesto Cavallo
Supervising Judge for Housing Court
100 Centre Street
New York, NY 10013

August 21, 2003

      Re: Ethics Complaint
          Housing Court Judge Hagler

Dear Justices Fisher and Cavallo:

We are extremely concerned about actions by Housing Court Judge Hagler 
which violate the canons of judicial ethics.  Specifically, Judge Hagler 
fails sua sponte to recuse himself when members of the committee to support 
Judge Hagler’s candidacy for Civil Court Judge appear before him, and Judge 
Hagler’s Civil Court literature creates the erroneous impression that he is 
currently a Civil Court judge.  Both these actions violate Judicial Ethics 
Opinions, specifically Opinion 01-07 and 94-50 respectively. (Opinions 
attached herein) We believe that both actions require disciplinary action.

Friends of Judge Hagler issued an invitation for a fundraising cocktail 
reception at the Embassy Suites Hotel for June 19, 2003. (See attached 
invitation)  The invitation listed 66 individuals as members of Judge 
Hagler’s campaign committee. A vast majority of these committee members are 
attorneys who represent landlords in housing court who appear before Judge 
Hagler on a regular basis. We understand that Judge Hagler has seen this 
invitation, is aware of who is on his committee, and attended this cocktail 
reception along with other fundraising events.
							
Over the last few months, Judge Hagler has failed to advise litigants when 
members of the committee to support his candidacy appear before him and has 
failed sua sponte to recuse himself in these cases. Indeed, in at least one 
case, a pro se litigant has requested that the judge recuse himself, and 
the judge has denied that request. See attached decision. He has received 
substantial numbers of donations from firms whose partners and associates 
appear before him regularly. (See attached donation list). Nonetheless, 
Judge Hagler has failed to disclose the potential conflict and has failed 
to recuse himself.

Canon 2 of the Code of Judicial Conduct requires that “(a) Judge should 
avoid impropriety and the appearance of impropriety in all his/her 
activities.”  Canon 3(E)(1) requires a judge to disqualify himself or 
herself from a proceeding when the “judge’s impartiality might reasonably 
be questioned.”  Advisory Opinion 90-136 reasoned that a judge should 
recuse him/herself when “the judge’s impartiality might reasonably be 
questioned....” The Advisory Committee on Judicial Ethics on January 25, 
2001 squarely determined this issue in Opinion 01-07 when it ruled that:

      Under the circumstances, a judge running for election should
      exercise recusal subject to remittal, where attorneys involved in
      planning an initial fund-raiser(or their partners or associates)
      appear before the judge during the campaign, except that in cases
      where a party is appearing pro se, there should not be a remittal.”

The Ruling reasoned that even when the attorneys involved will “not hold 
any office or other position in the campaign or provide any assistance 
beyond contacting persons with respect to the initial fund-raiser...” “that 
involvement alone does create a situation in which the judge’s impartiality 
might reasonably be questioned.(22 NYCRR 100.3[E][1])....”(See attached 
opinion).

In People v. T & C Design, 178 Misc. 2d 971, 680 N.Y.S.2d 832 (S Ct Nassau 
County 1998), a pro se litigant informed the Court that her ex-spouse had 
run against the presiding judge in his first election, but said that she 
felt the judge would be fair to her.  However, the Court found that the 
burden is on the judge affirmatively to deal with issues of recusal and 
referred the issue to an alternative judge. “(I)f a judge waits for the 
motion to be made before acting then the Judge is not using his or her 
judicial antennae, sua sponte, to ferret out or raise questions of fairness 
and impropriety, both in a gray area of the law relating to recusal. The 
malfunctioning of judicial radar in questions of recusal becomes of even 
greater importance with pro se defendants where the court must extend 
additional effort to be fair...” Id. at 833. Obviously, in Housing Court 
where so many of the respondents are pro se, this takes on greater importance.

We request that you require disclosure and recusal in all cases where 
attorneys on Judge Hagler’s committee (or their partners or associates of 
the firm) appear before the judge during the campaign or that you 
discipline Judge Hagler for the failure to recuse himself.

Secondly, Judge Hagler’s literature is misleading.  He appears in judicial 
robes, is listed as “Judge S. Hagler”, and says that he will “continue to 
ensure that Civil Courts offer justice...”  (Literature attached 
herein).  This violates Advisory Opinion 94-50, which holds that a judge 
must make it clear that he is not the incumbent of the office sought and 
his campaign material must scrupulously avoid any ambiguity in that regard 
in order to avoid the potential for deception. By appearing to portray 
himself as an incumbent Civil Court judge, Judge Hagler’s misleading 
campaign material would be likely to give him an unfair advantage in his 
campaign for that office and violates Section 100.4 (d)(iii) of the Rules 
Governing Judicial Conduct. We request that you require Judge Hagler to 
cease using this literature.

Please let us know your decision on this matter promptly. If you have any 
questions, please feel free to contact us.

Sincerely,

Judith Goldiner
The Legal Aid Society

Sandra Russo
Legal Services for New York

Harvey Epstein
Housing Conservation Coordinators

Stephanie Townsend-Bakare		
City-Wide Task Force on Housing Court

John Fisher
TenantNet

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ADVISORY COMMITTEE ON JUDICIAL ETHICS
OPINION: 01-07
January 25, 2001
(also at 
http://www.tenant.net/alerts/judges/2nddist2003/Judicial%20Ethics/Opinion%2001-07.htm)

Digest:  Under the circumstances, a judge running for election should 
exercise recusal, subject to remittal, where attorneys involved in planning 
an initial fund-raiser (or their partners or associates) appear before the 
judge during the campaign, except that in cases where a party is appearing 
pro se, there should not be a remittal.

[TenantNet Note: Our understanding of the word 'remittal' as used in this 
opinion means that once a Judge/candidate discloses his conflict with the 
attorney(s) for one of the parties to a dispute, the opposing attorney then 
has the option to request recusal (i.e., it is 'remitted' to him/her). 
Opposing attorneys may sometimes waive the option to request recusal in 
order to not antagonize a judge/candidate. However, if a tenant/party is 
unrepresented, then the tenant is not given the option to request/waive 
recusal. In such cases, the judge/candidate has an obligation to recuse]

Rule:  22 NYCRR 100.3(E)(1); 100.3(F);
        Opinion 97-129 (Vol. XVI).

Opinion:

A judge who is seeking election has met with a group of six attorneys to 
discuss their assistance in notifying individuals and prospective 
contributors of the initial fund-raiser for the judge's campaign. None of 
the six will have any involvement in the campaign beyond providing such 
assistance for this particular event. Of the six, two are partners in law 
firms; two are solo practitioners, and two are with legal aid/legal 
services organizations. The judge seeks the Committee's advice with respect 
to possible disqualification in matters where a member of the group is 
appearing before the judge.

At the outset, we note that the event planned is to take place early in the 
campaign and that none of the six attorneys will hold any office or other 
position in the campaign or provide any assistance beyond contacting 
persons with respect to the initial fund-raiser. Nonetheless, that 
involvement alone does create a situation in which the judge's impartiality 
might reasonably be questioned (22 NYCRR 100.3[E][1]), should appearances 
be made during the course of the campaign. We therefore advise that the 
judge should disclose the involvement and recuse himself or herself where 
appearances are made by any of he attorneys, as well as associates or 
partners of the two who are members of law firms. Such recusal is, however, 
subject to remittal pursuant to section 100.3(F) of the Rules Governing 
Judicial Conduct, unless the opposing party is appearing pro se. In the 
latter instance, the disqualification should not be subject to remittal.

Further, disclosure and recusal are not required beyond the date of the 
election. Once the campaign is concluded, the limited involvement in a 
discrete event early in the campaign should not give rise to a possible 
inference of partiality, and thus disclosure and recusal should no longer 
be required. See Opinion 97-129 (Vol. XVII).