BUFFALO, N.Y. (WIVB) — A federal judge who ordered Buffalo Mayor Byron Brown’s name be added to the November general election ballot is facing increasing scrutiny over conflicts that critics say should have resulted in his recusal.
On Friday, Sept. 3, U.S. District Court Judge John L. Sinatra Jr. ordered the Erie County Board of Elections to add Brown’s name to the Nov. 2 ballot under a new independent line, despite Brown missing a state-imposed deadline by months.
The decision was a huge victory for the four-term mayor, who lost the June democratic primary to political newcomer India Walton by about 1,000 votes.
Until Sinatra’s decision, Brown’s only option to challenge Walton in November was to launch a long-shot write-in campaign, which he did a week after the primary loss.
Critics have raised several issues that they believe collectively have an appearance of impropriety.
- Nick Sinatra, the judge’s brother, and limited liability companies linked to him, have donated more than $11,000 to Brown between 2012 and 2021. In addition, Brown appeared in a commercial for Sinatra and Company Real Estate in 2018 in which he praised the developer.
- Hodgson Russ, the law firm at which John Sinatra Jr. worked prior to becoming a federal judge, attributed to him, in his capacity as a firm partner, seven small-amount donations that went to the Brown for Buffalo committee between 2014 and 2017. Under state campaign law for partnerships, donations are attributed proportionately to each member of the firm once they go above $2,500 in a calendar year. While the firm contributed at least $23,000 to Brown during that period, the total amount attributed to John Sinatra Jr. was $77.
- John Sinatra Jr. revealed in his U.S. Senate Committee on the Judiciary questionnaire for judicial nominees that he counseled The Rev. Richard Stenhouse, a Brown ally and co-defendant with Brown, in a 2017 pay-to-play lawsuit.
Walton, a democratic socialist, leveled sharp criticism on the judge after he ruled in Brown’s favor.
Her team also raises concerns in a footnote in her appeal of Judge Sinatra’s decision.
“The hearing should never have proceeded with Judge John Sinatra presiding in the first place. Sinatra is the farthest thing from an impartial judge,” Walton said in a post on Twitter.
Before oral arguments on Sept. 3, the judge said his office had received “a couple of phone calls” suggesting that he recuse himself from the case “on account of my brother’s support over the years for Mayor Brown.”
“I have considered the issue even well before those phone calls; I have consulted with the Code of Conduct for United States judges, the recusal statute and even another judge in this district, and there is no basis for recusal,” Sinatra said on the bench on Sept. 3.
“As federal judges, we must hear the cases that are randomly assigned to us and recuse when appropriate. We don’t pick and choose our cases.”
James J. Sample, professor of law for Hofstra University, told News 4 Investigates that when the potential conflicts are viewed in their totality, he believes the judge should have recused himself from the case.
“The most fundamental thing that every judge owes every litigant is not only the actuality of impartiality but the appearance of impartiality,” Sample said.
“The question to ask is not whether judge Sinatra believes, as he clearly does, that he can be impartial in this case; the question to ask is whether a reasonable observer on the other side would believe that a judge with all of these connections to one of the litigants in the case would be impartial.”
Judge Sinatra and Chief U.S. District Judge for the Western District of New York Elizabeth A. Wolford declined to answer questions about the potential conflicts.
Hodgson Russ did not return numerous emails and phone messages from News 4 Investigates.
“Offering transparent reasoned disclosure and facts, which are clearly known to the judge, would allay those concerns, if the concerns prove to be minimal,” Sample said. “But by not being transparent, the judge actually contributed to the very questions about his impartiality that have been quite properly raised.”
How we got here
After Brown lost the primary, he expressed remorse for the laid-back style of his campaign, which included his refusal to debate Walton.
“The mayor has taken full responsibility for letting the people of Buffalo down during the primary,” his campaign wrote in a statement to News 4 Investigates in August.
“He has not shied away from that reality.”
Brown launched a write-in campaign about a week after he lost the primary.
But his campaign changed course months later.
In August, Brown decided to challenge the state-imposed May 25 filing deadline for independent candidates to get on the general election ballot.
The Erie County Board of Elections denied Brown’s petition because he missed the filing deadline by more than three months.
Brown appealed the county board of election’s decision, and that’s when the concerns over potential conflicts with Judge Sinatra deciding the case began to surface.
The alleged conflicts
Nick Sinatra, the judge’s brother, launched a real estate company in 2009, with more than 5,000 apartments and at least 850,000-square feet of commercial space added to his resume.
Some of the projects his company is responsible for include the redevelopment of the Market Arcade, where it is headquartered, the attached EXPO Market, the retail and apartment complex Fenton Village, and Phoenix Brewery Apartments.
Since 2009, Nick Sinatra himself has donated more than $53,000 to various campaigns and political committees. In addition, his real estate company has given more than $13,000 in both in-kind and cash donations over the same period.
The recipients have been both republicans and democrats, including at least $11,255 to Brown.
According to reports by LittleSis, a watchdog research nonprofit organization, Nick Sinatra’s companies have benefited from subsidies and tax breaks at the state and local levels, while one time owing at least $800,000 in city and county real estate taxes.
Around the time that Nick Sinatra was in tax arrears, Mayor Brown appeared in a 2018 commercial for Sinatra & Company Real Estate.
Brown states in the commercial that “Nick Sinatra does his homework, he wants to see, of course, his business do well, he wants to see his partners do well, he wants to see the community do well. And that kind of spirit lifts communities that he is working in and it creates a real sense of enthusiasm and excitement when Nick Sinatra is involved in a development project.”
Another potential conflict cited by critics is seven small-amount donations to Brown’s campaign from 2014 to 2017 made by the Hodgson Ross law firm that were attributed to then-partner John Sinatra Jr. (and others).
While the firm contributed at least $23,000 to Brown during that time frame, the total amount attributed to John Sinatra Jr. is $77, though there is no indication that he was involved in decisions about the firm’s political contributions.
State campaign laws require partnerships to attribute the donations proportionately to each member of the firm for any donations that exceed $2,500 in a calendar year. A state elections representative said partnerships can donate up to $2,500 without having to identify its partners.
According to court papers in Walton’s appeal of Judge Sinatra’s decision, her legal team states that the donations seem to have been attributed to him by virtue of his partnership at his former law firm.
Another connection John Sinatra Jr. has to Brown is revealed in a U.S. Senate Committee on the Judiciary questionnaire for judicial nominees.
John Sinatra Jr. states in that document that he counseled a pastor “involved in an alleged RICO case, including counseling him after his involvement as a party.” That pastor is The Rev. Richard Stenhouse, who was a co-defendant with Brown in a pay-to-play federal lawsuit filed by Cleveland-based NRP Properties in 2012.
NRP Properties planned to build a $12 million affordable housing project on city-owned land on Buffalo’s East Side. When the project failed, NRP sued the city, alleging that the project fell apart when NRP refused to hire Stenhouse, a political ally of Brown. Once NRP hired someone else, the developer alleged that the city failed to move forward with any of the necessary steps to get the project approved.
U.S. District Court Judge William Skretny eventually dismissed all the developer’s claims, and a three-judge federal appeals panel upheld the dismissal in February 2019, ruling that NRP’s RICO claim against the mayor and other city officials is barred by legislative immunity “because the mayor’s refusal to take the final steps necessary to approve the project was discretionary legislative conduct.”
However, the panel of judges also stated that it was “troubled by the implications of the evidence that NRP adduced in support of its claims,” noting that “evidence suggests that defendants’ motives for scuttling the Project – a development that, it appears, might have benefited low-income individuals and families in Buffalo – stemmed from either caprice or a form of political engagement whose ethical valence seems dubious.”
John Sinatra Jr. counseled Stenhouse “at a discounted rate, and some was pro bono,” according to his judicial questionnaire.
“I have spent several weeks on this matter,” John Sinatra Jr. wrote in the questionnaire.
Stenhouse settled out of the lawsuit with NRP in its early stages for a reported $200,000, according to The Buffalo News.
Code of Conduct for federal judges
Sample, the Hofstra University law professor, said each connection viewed in isolation would not necessarily require Sinatra’s disqualification from Brown’s case.
“Taken together, all of the connections between Judge Sinatra and Mayor Brown raises serious question about whether or not he can truly be impartial,” Sample said.
“A reasonable observer would question that, and as such, regardless of whether Judge Sinatra subjectively believes on his own that he can be impartial, statutory law requires his recusal.”
Canon 2 of the Code of Conduct for federal judges states that a judge “should avoid impropriety and the appearance of impropriety in all activities.”
The Code of Conduct goes on to state that a federal judge should be disqualified from a case if the judge or his or her spouse or a person related to either within the third degree of a relationship is known to have an interest that “could be substantially affected by the outcome of the proceeding.”
In this case, Nick Sinatra, the judge’s brother, would qualify as being within the third degree of a relationship, and Sample believes his real estate development interests could be “substantially affected by the outcome of the proceeding” under the Code of Conduct.
“It’s not as though Judge Sinatra is the only federal district judge who can hear this case or any other case,” Sample said.
“And in fact, the cases are fungible. The desire to hear the case and rule on the case despite the objective appearance of a serious question of impartiality, if anything, adds to the atmosphere that the judge really does want to decide this case because, among other things, his brother is in a position to benefit from the outcome that Mayor Brown is seeking.”
On Sept. 3, during Brown’s hearing, Judge Sinatra said on the bench that mayoral elections will come and go, but “at the end of this case and at the end of my career, I will have my integrity, so I don’t think anyone here, in front of me, doubts that.”
“I wake up every day and go to bed every night trying to get it right every time,” he said.
Brown also said he failed to see any problem with Judge Sinatra deciding the case.
“I’m not worried about the optics at all,” Brown said in an interview after Judge Sinatra’s ruling
“I don’t question the integrity of the courts.”
The U.S. Court of Appeals for the Second Circuit on Thursday night ordered a stay of Judge Sinatra’s decision.
Meanwhile, the Court of Appeals for the State of New York on Thursday reversed the state court’s decision by Judge Paul Wojtaszek, who also ordered Brown’s name on the ballot.
Brown filed the same petition in Erie County Supreme Court, where Wojtaszek ruled that the state law that moved up the filing deadline for independent candidates was unconstitutional.
The reversal is a victory for Walton.
“Today, we are VERY glad to see the Fourth Department has upheld the rule of law & said Byron Brown’s name should NOT be on the ballot. Buffalo voters deserve clear, transparent election laws, & politicians who abide by them, even when they lose,” Walton tweeted Thursday afternoon.
Dan Telvock is an award-winning investigative producer and reporter who has been part of the News 4 team since 2018. See more of his work here and follow him on Twitter.