May 2020 E-Newsletter

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Court Denies Town of Islip's Request to Have U.S. District Judge Recuse Himself From Voting Rights Case

Fred Brewington successfully represented a group of plaintiffs against the defendant Town of Islip and associated entities, which sought to have the magistrate judge presiding over the voting rights lawsuit filed by four Islip Town residents — Ana Flores, Rene Flores, Maria Magdalena Hernandez and Magali Roman — as well as Make The Road New York and New York Communities for Change.

The defendants, comprised of the Town of Islip, the Islip Town Board and the Suffolk County Board of Elections, argued that Gary R. Brown, who served as Magistrate Judge and, later, U.S. District Judge in this case, had a conflict of interest because he served as Assistant United States Attorney in several prosecutions related to the street gang MS-13 back in 2005. They cited three references to MS-13 in the plaintiffs’ complaint, which was filed on June 18, 2018, challenging the town’s “at-large” voting system:

• One on how “[t]he community in Brentwood and Central Islip have repeatedly asked police and local officials to provide basic protection and support in response to a recent spate of violence from the MS-13 gang.”
• One on how “[t]he community in Brentwood and Central Islip have repeatedly asked police and local officials to provide basic protection and support in response to a recent spate of violence from the MS-13 gang.”
• Another that read, “[f]or years, the communities in Brentwood and Central Islip have suffered from MS-13 gang activity.”
• Another paragraph which stated, “Recent efforts by local law enforcement to combat MS-13 have generally been harmful, rather than helpful, to Islip’s Latino community.” The paragraph concluded by stating that the town “has failed to provide resources to protect Islip’s Latino youth from MS-13.”

On December 11, 2018, Magistrate Judge Brown presided over an initial conference in preparation for the plaintiffs’ upcoming discovery motion. He said that, while he was “skimming through the complaint,” he noticed references to MS-13 and “the Town has been unresponsive and so forth.” He acknowledged that he and the plaintiffs’ counsel have known each other for a long time and that, prior to becoming Magistrate Judge, he was the chief federal prosecutor of the Long Island Criminal Division until 2005. Before that, he prosecuted numerous cases involving “MS-13 and … related entities [such as] enemy gangs [and] allied groups.” Having said that, he offered to recuse himself saying, “I will get off the case right now.” Both parties, having consulted with their clients, declined the judge’s offer to recuse.

On March 1, 2019, the plaintiffs made their motion for a preliminary injunction. On March 19, 2019, Judge Brown, now the U.S. District Court Judge, presided over a lengthy discovery conference that involved discovery limitations, including precluding witnesses who were not properly identified and subject to deposition from testifying at the preliminary injunction hearing.

After a series of filings, between April 2019 and May 2019, Judge Arthur D. Spatt held an evidentiary hearing. Twelve days later, he denied the plaintiffs’ motion for a preliminary injunction. On September 20, 2019, Judge Spatt denied a motion to set a trial date or dispositive motion because Judge Brown had not certified the case as trial-ready. On January 23, 2020, the case was reassigned to Judge Brown from Judge Spatt. The Town of Islip objected, citing his disclosure at the initial conference when he was a Magistrate Judge. After the plaintiffs objected, the Court instructed the town to file a disqualification motion. In a letter dated February 12, 2020, the plaintiffs offered to remove any and all references to MS-13, but the Town responded in an email that “Islip does not agree to the proposal in your letter […].”

Using the references to MS-13 and Judge Brown admitting he knew the plaintiffs’ attorney and that he was involved in prosecuting members of MS-13 and other street gangs, the Town sought to disqualify Judge Brown under 28 U.S. §455(b)(1), which partially states: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which … he has … personal knowledge of disputed evidentiary facts concerning the proceeding.” It also argued that Judge Brown was subject to the provisions of the Code of Conduct for Federal Judges.

On March 19, 2020, the Town’s motion to recuse Judge Brown was denied. According to the decision, the request was time-barred, since the town waited 14 months before demanding that Judge Brown be removed from the case. The Court also found that the Town already won a decision against the plaintiffs before Judge Spatt and that they sought to have Judge Brown dismissed in an effort to obtain another legal victory before Judge Spatt, which the Court deemed “simply impermissible.” Further, the Court ruled that there was no evidence Judge Brown was in conflict of interest when he served as Magistrate Judge in the case and, later, as U.S. District Judge.

To read the decision, click here.

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