It’s a routine step when someone files a lawsuit in federal court in Manhattan: the case is randomly assigned to a judge.
But what happened recently in a case brought by New York City teachers and other educators seeking to block a coronavirus vaccine requirement was anything but routine.
For two weeks, the teachers’ lawyers have asked three consecutive judges assigned to the case to withdraw and reassign the case. The attorneys cited financial disclosure forms listing each judge as owning thousands of dollars worth of stock in Covid-19 vaccine manufacturers, whose stock price, they said, could be helped or hurt by their rulings.
“Ownership of these shares poses a direct financial conflict of interest in the outcome of this case,” the attorneys wrote to Judge Valerie E. Caproni, the first judge assigned to the case, on June 9.
Judge Caproni withdrew and the case was arbitrarily assigned to a second judge, Edgardo Ramos. After prosecutors cited that he also had interests in vaccine makers, he withdrew and the case went to a third judge, Naomi Reice Buchwald.
“I was encouraged to see that they took it seriously and acted quickly,” said Sujata Gibson, one of the plaintiff’s attorneys.
But Judge Buchwald, who also owned shares according to the plaintiffs, refused to step aside, arguing that the request was based on “outdated information.” The plaintiffs responded with a motion asking her to confirm that she did not own the shares.
The escalating dispute highlights a question that is receiving increasing attention in the news media, the courts and in Congress: When should judges disqualify themselves from cases?
Last year, a Wall Street Journal investigation reported that at least 130 federal judges violated law and judicial ethics by conducting cases involving companies in which they or their family stocks were owned.
Chief Justice John G. Roberts Jr., citing the articles, called for increased scrutiny, ethical training and regulatory compliance, and President Biden recently signed a bill strengthening disclosure requirements.
Several ethics experts investigating the dispute in the teachers’ case said the successive recusal requests showed how lawyers might find it beneficial to suspend the judge if it served a strategic purpose.
In their initial petition to Judge Caproni, prosecutors’ lawyers noted that she had rejected several key motions. “The proceedings so far could lead to a perception of a lack of neutrality,” they wrote.
By law, judges must resign if they own even one share in a party to a lawsuit, said Stephen Gillers, a professor at New York University School of Law. “The one-share rule is simple,” he said. “It’s a clear line. It either exists or it doesn’t, and there’s nothing to argue about.”
In the case of the teachers, however, the parties were civil servants and the city education department – not a business. Next, said Mr Gillers, the question of whether the judge’s financial interest could be “significantly affected” by a ruling, which is vague.
In any event, the experts said, judges should disqualify themselves from any proceeding in which their “impartiality could reasonably be called into question”.
But as David Luban, a professor at the Georgetown University Law Center, put it, “This standard – ‘impartiality could reasonably be questioned’ – leaves a lot of wiggle room.”
In his view, the successive motions in the case of the teachers were unusual, but not frivolous, and did not cross ethical boundaries.
“It’s very strategic, but litigation is strategic,” said Mr Luban.
Years ago, Manhattan federal court assigned cases using a wooden wheel, the kind that might have been spun to name numbers in a church bingo game. Inside the wheel were sealed envelopes with the names of individual judges.
Now the court uses a software program to assign civil cases, but the principle is the same: arbitrariness.
“The idea is that justice is blind, you get a judge that you can’t choose, and who doesn’t choose his or her own cases, but instead has to decide the cases assigned to them,” said Amanda Frost, a law professor at American University in Washington, DC
The teachers’ case concerns two civil rights lawsuits filed last year that jointly challenge demands that some 150,000 city education workers — working in the country’s largest school district — receive a Covid-19 vaccine to keep their jobs.
Only last month The plaintiffs’ attorneys wrote to Judge Caproni, who originally oversaw the case, saying newly available disclosure forms for 2020 showed she owned between $50,000 and $100,000 in Pfizer stock. Other data, they said, showed she owned significant shares of the company since at least 2011.
Judge Caproni replied in a brief injunction that she never considered the case one that would “significantly affect the financial interests of a long-term investor in Pfizer.” She noted that by October of last year, 95 percent of all education department employees had been vaccinated, leaving only about 7,000 who had not been vaccinated and “who would be affected by future statements.”
She said she doubted the matter, including whether the vaccine mandate remained or not, would affect Pfizer’s stock “in a meaningful way.”
Still, she said she would pull herself out “to avoid even the possible appearance of bias or prejudice.” She also rejected the argument that her previous statements reflected “bias or bias” and that they were “not a factor” in her decision, she wrote.
The second judge asked to step aside, Judge Ramos withdrew after the plaintiffs filed a motion demonstrating his interests in Covid vaccine makers.
In seeking the challenge of Judge Buchwald, the third judge, lawyers said her 2020 disclosure forms showed possession in Pfizer and Johnson & Johnson. Judge Buchwald, who denied the request, said she did not own such shares the date on which the case was assigned to it.
Ms. Gibson, the plaintiffs’ attorney, said the recusal requests were made in good faith, “particularly in a case of this magnitude, where thousands of jobs are at stake and people are rightly skeptical of the influence of drug companies and pharmaceutical money on this process in general.”
Edward Friedland, a spokesman for the court, said it was the court’s policy that none of the three judges would comment on the case. He confirmed that each of the three judges had been arbitrarily assigned the case from the teachers.
There was disagreement among the experts as to whether the judges should withdraw. Rebecca Roiphe, a professor at New York Law School, said it seemed to her that no one was obligated to do so.
“The likelihood that this lawsuit in New York would affect the stock prices of a company like Pfizer, which has a market cap of about $300 billion, is negligible,” she said. “It seems the judges instead gave in to unreasonable assumptions about their ability to be fair.”
But James Sample, a law professor at Hofstra University, said the issue of appearing impartial is a real one.
“Do I think Judge Caproni and Judge Ramos could have been fair in this case? Absolutely,” he said. “But hearing the case when it became clear that they have important positions in an interested party does not pass the optics test. And in the challenge law, the optics test is important.”