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 educational workers seeking to block a coronavirus vaccine requirement has been anything but routine.
Over two weeks, the teachers’ lawyers have asked three successive judges assigned to the case to recuse themselves and have it reassigned. The lawyers cited financial disclosure forms, listing each judge as owning thousands of dollars of stock in Covid-19 vaccine manufacturers, whose share price, they argued, could be helped or hurt by their rulings.
“The ownership of this stock constitutes a direct financial conflict of interest in the outcome of this case,” the lawyers wrote on June 9 to Judge Valerie E. Caproni, the first judge assigned to the case.
Judge Caproni recused herself and the case was randomly reassigned to a second judge, Edgardo Ramos. After the plaintiffs cited that he too had holdings 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 they acted swiftly,” said Sujata Gibson, one of the plaintiff’s lawyers.
But Judge Buchwald, who the plaintiffs said had also owned shares, refused to step aside, arguing that the request was based on “outdated information.” The plaintiffs responded with a motion asking her to certify she did not own the stock.
The escalating dispute highlights a question that has drawn increasing scrutiny in the news media, the courts and in Congress: When should judges disqualify themselves from cases?
Last year, a Wall Street Journal investigation said at least 130 federal judges who were said to have violated the law and judicial ethics by presiding over cases involving companies in which they or their family owned stock.
Chief Justice John G. Roberts Jr., citing the articles, called for greater controls, ethics training and compliance with the rules, and President Biden recently signed a law bolstering disclosure requirements.
Several ethics experts who examined the dispute in the teachers’ case said the successive recusal requests showed how lawyers might find it advantageous to seek a judge’s disqualification if it served a strategic purpose.
In their initial request to Judge Caproni, the plaintiffs’ lawyers noted she had denied several key motions. “The proceedings thus far could lead to a perception of a lack of neutrality,” they wrote.
Under the law, judges must step away if they own even one share of stock in a party to a lawsuit, said Stephen Gillers, a professor at New York University School of Law. “The one-share rule is easy,” he said. “It’s a bright line. It either exists or it doesn’t exist, and there’s nothing to argue about.”
In the teachers’ case, however, the parties were public officials and the city education department — not a company. Then, Mr. Gillers said, the question is whether the judge’s financial interest “could be substantially affected” by a ruling, which is vague.
In any case, the experts said, judges must disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.”
But as David Luban, a professor at Georgetown University Law Center, put it, “This standard — ‘impartiality might reasonably be questioned’ — leaves a whole lot of wiggle room.”
In his view, the successive motions in the teachers’ case were unusual but not frivolous, and did not cross ethical lines.
“It’s very strategic, but litigation is strategic,” Mr. Luban said.
Years ago, the Manhattan federal court assigned cases using a wooden wheel, the kind that might have been spun to call out numbers in a church bingo game. Inside the wheel were sealed envelopes containing the names of individual judges.
Now, the court uses a software program to assign civil cases, but the principle is the same: randomness.
“The idea is justice is blind, that you’re getting a judge that you can’t choose, and who doesn’t choose his or her own cases but will instead have to decide those assigned to them,” said Amanda Frost, a law professor at American University in Washington, D.C.
The teachers’ case involves two civil rights lawsuits filed last year that jointly challenged the requirement that roughly 150,000 city education workers — employed in the nation’s largest school district — receive a Covid-19 vaccine in order to keep their jobs.
Not until last monthdid the plaintiffs’ lawyers write 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 records, they said, showed she had held substantial stock in the firm since at least 2011.
Judge Caproni, in a brief order, responded that she never considered the case as one that would “substantially affect any financial interest of a long-term investor in Pfizer.” She noted that by last October, 95 percent of all education department employees had been vaccinated, leaving only about 7,000 who had not been and “who would be affected by future rulings.”
She said she doubted that the case, including whether the vaccine mandate stood or fell, would affect Pfizer stock “in any meaningful way.”
Still, she said she would recuse herself “to avoid even the possible appearance of any bias or prejudice.” She also rejected the argument that her earlier rulings reflected “partiality or bias” and they “did not factor” into her decision, she wrote.
The second judge asked to step aside, Judge Ramos, withdrew after the plaintiffs filed a motion showing his holdings in Covid vaccine makers.
In seeking the recusal of Judge Buchwald, the third judge, the lawyers said her 2020 disclosure forms showed holdingsin Pfizer andJohnson & Johnson. Judge Buchwald, rejecting the request, said she did not own such stock onthe date the case was assigned to her.
Ms. Gibson, the plaintiffs’ lawyer, said the recusal requests were made in good faith, “especially in a case this important, where thousands of jobs are on the line and people are rightly skeptical about the influence of pharmaceutical companies and pharmaceutical money on this process generally.”
Edward Friedland, a court spokesman, said that as per court policy, none of the three judges would comment on the case. He confirmed that each of the three judges had been assigned the teachers’ case randomly.
There was disagreement among the experts over whether the judges needed to withdraw. Rebecca Roiphe, a professor at New York Law School, said it seemed to her that none were required to do so.
“The chance that this lawsuit in New York would affect the stock prices of a company like Pfizer, which has a market cap of around $300 billion, are negligible,” she said. “It seems that the judges were instead caving to unreasonable assumptions about their ability to be fair.”
But James Sample, a Hofstra University law professor, said the issue of appearing impartial is real.
“Do I think that Judge Caproni and Judge Ramos could have been fair in hearing this case? Absolutely,” he said. “But hearing the case once it was clear that they own significant positions in an interested party fails the optics test. And in recusal law, the optics test matters.”
