The Joy of Family Law “I am a marvelous housekeeper. Every time I leave a man, I keep his house.” Zsa Zsa Gabor. “A lot of people ask me how short I am. Since my last divorce, I'm about $100,000 short.” Mickey Rooney When I started practicing law in the late 1970’s, there was no child support standards act, no equitable distribution law and no maintenance (alimony) standards act. Family law was much simpler, and many lawyers, especially in more rural areas, helped people with divorces as well as criminal matters, wills, estates and real estate transactions. But Albany County had its matrimonial specialists and they were wonderful lawyers and friends. At the time, the Catholic Church did not recognize civil divorces and it discouraged the practice of divorce law by Catholic lawyers. As a result many local family lawyers were Jewish or from other religions. They were the wonderful Robert Kahn, Larry Gordon, the hilarious Sandy Soffer and then the younger generation of Stan Rosen and Timothy Tippins. Then there was the legendary Anthony Cardona who became the Presiding Justice of the Third Department. In 2002 Pope John Paul II said that Roman Catholic lawyers should not handle divorces. “We cannot surrender to the divorce mentality. When a couple encounters difficulties in their marriage, priests and other members of the faith must be united to help them positively resolve the crisis. Lawyers must always decline to use their professional skills for ends that are contrary to justice, like divorce.'' As a result of the influence of the Catholic Church, it was not until 2010 that New York became the last state in the nation to recognize no fault divorces. Prior to that, one could defeat the distribution of assets by proving the lack of fault. One could also ask for a jury trial for proof of divorce fault which I never did, but I endured four such trials. In the last my client with weak fault grounds had to endure the testimony (without cross examination by me) of her 14-year-old son who testified he saw her holding the hands of another man at the Empire State Plaza. I was able to convince the jury to grant the divorce simply by saying, “What kind of a husband puts his 14-year-old son on the stand to testify in public before a jury and his mother about her holding someone’s hand.” That did not stop business owners and professionals from preventing the distribution of their marital businesses by claiming no fault, i.e. no adultery, abandonment, or cruel and inhuman treatment. In the meantime they would all be afflicted with the disease we called RAIDS, Recently Acquired Income Deficiency Syndrome. I think it is in the DSM-5. Yes, it was a different time but it was infinitely enjoyable. I can still hear Sandy Soffer telling a bunch of lawyers at a “motion day” (Thursday) at the courthouse, “If I had sex with all my clients as I was accused by their husbands, I’d be so tired I couldn’t get to work in the morning.” Family Law had another bright spot. When I started practicing at Ainsworth, Sullivan, Tracy and Knauf, there were no women trying civil cases before juries and never any women associates at large litigation firms like Ainsworth and Carter, Conboy. There were no such restrictions in family law. Within a few years we saw the elevation, among others, of future Court of Appeals Judge Leslie Stein at McNamee, Lochner and Flo Richardson in Bob Kahn’s firm as some of the best matrimonial lawyers in the state. Did you know that the first county-wide female Albany jurist was a Family Court judge, even before I was admitted to practice? Her name was Eileen A. Sullivan and she passed last year at the age of 103. She was appointed by Republican Governor Nelson Rockefeller in the early 1970’s in overwhelmingly Democratic Albany County when an opening occurred. She served until the next election where she was defeated by the legendary Michael Tepedino. She has two cases published in New York’s Miscellaneous Citations. Over the years, the legislature in their wisdom made Family Law beyond complicated which ended the part time family practitioners and dramatically increased the hourly rates of family law “specialists” as there were far more people seeking the services of fewer lawyers. As one attorney said at one of my NYS Bar Association CLE programs, “I think it is disgusting that someone in Albany has to pay you, Mr. Friedman, $490 per hour just to get divorced.” I replied, “I agree with you. And I’ll stop charging it as soon as people stop paying me.” But as you can see it was a fun ride thanks to the wonderful professionals who made it so. Or as the great Zsa Zsa Gabor once said, “I have learned that not diamonds but divorce lawyers are a girl's best friend.” Amen. Post Script: When I moved to California in 2015, I was treated by a local cardiologist. After a series of tests he said to me, “Mr. Friedman, I understand you were a divorce lawyer in New York.” I said, “Yes, doctor, but why?” He said, “Because you have a heart that’s never been used before.” THAT made me laugh.

“I don’t think you can make a lawyer honest by an act of the legislature. You’ve got to work on his conscience. And his lack of conscience is what makes him a lawyer.” Will Rogers Rudolph Giuliani’s two attorneys have recently called his suspension from the practice of law “unprecedented.” They then said, “We believe that our client does not pose a present danger to the public interest. We believe that once the issues are fully explored at a hearing Mr. Giuliani will be reinstated as a valued member of the legal profession that he has served so well in his many capacities for so many years.” It is ironic that one of Giuliani’s attorneys is Barry Kamins, who was once one of five Executive Officers of New York’s court system. In the weeks prior to that ascension, Judge Kamins was the Administrative Judge for Criminal Matters in Kings County. It was reported that in a series of e-mail exchanges, Justice Kamins advised his friend, Kings County District Attorney Charles Hynes on Hynes’ reelection campaign. In telling Mr. Hynes how to attack his opponent in a debate, Justice Kamins wrote that he should “focus on the nitty-gritty of what the D.A. does each day to run the office — of course Thompson has no clue and that will come out.” Justice Kamins offered to speak to people at the New York Times and New York Law Journal editorial boards about Hynes’ endorsement, and sent, among three hundred e-mails, this ditty: “Btw, I tried to pump the Brooklyn Bar Pres for info about the debate.” Many of Judge Kamins’ e-mails were ex parte communications about the reelection of the Kings County District Attorney as well as cases before the District Attorney. It was all spelled out in a 27-page City of New York Department of Investigation Report called “Regarding Misconduct by Former Kings County District Attorney Charles J. Hynes, Justice Barry Kamins and Others.” New York’s rules for judges provide that a sitting judge “shall refrain from inappropriate political activity” as well as ex parte communications with one counsel in contested matters. Prohibited political activity includes “engaging in any political campaign for any office.” Engaging in political activity often justifies removal from office in New York. Judge Kamins was stripped of his administrative appointment and an investigation was ordered. A formal complaint was filed by the Administrator of New York’s Commission on Judicial Conduct. On September 9, 2014, the Administrator of the Commission on Judicial Conduct and Judge Kamins signed an agreement that Judge Kamins would retire as a judge. Judge Kamins agreed never to seek judicial office in the future. So, isn’t Attorney Kamins the perfect person to publicly comment on who is a valued member of New York’s legal community?

VALENTINE’S DAY GIFT OF THE NEW YORK OFFICE OF COURT ADMINISTRATION “Bureaucracy is the death of all sound work.” Albert Einstein “It is not a Justice System. It is just a system.” Bob Enyart On February 1, 2021 new rules went into place pursuant to an Administrative Order of Chief Administrative Judge Lawrence Marks. Good luck finding it on the Office of Court Administration (OCA) website. It is not among the forty 2020-2021 Latest Administrative Orders listed but it is on the website somewhere. It was never published on the website before it went into effect. After all, it only applies twenty-nine new rules to every Supreme and County Court civil case in the state. In the most recent annual report of the court system that was only 535,681 cases per year. What is the big deal? If you do happen to find the Order, do not worry. The new rules are only 62 pages long! They contain some of the most time consuming and unnecessary changes to the practice of “civil” law in the State of New York. Want to know who will benefit to benefit from these rules? Among others, insurance defense attorneys, divorce lawyers and contract lawyers. Why? Because they bill by the hour and these rules significantly increase the time needed to bring any matter to Supreme and County Court for resolution. Want to know who will not benefit from the rules? Anyone who is seeking to resolve issues by coming to Supreme Court or County Court. The new rules amend 22 NYCRR 202. Here is a small sampling of what you have in store. OCA has found it important to rule that you be on time and be familiar with your case. Otherwise, you may be considered in default. 202.1(f)(g) As you know, for any motion related to disclosure, you are required to state you have conferred with opposing counsel “in a good faith effort to resolve the issues raised by the motion.” That is no longer good enough. Why trust attorneys? In your motion papers, you now must state that you conducted an in-person or telephonic conference. That is not all. You must also state the date and time of the conference, who participated and the length of time of the conference. Apparently, emails and letters do not count. As we know, judges tell juries the rules. For deliberations, jurors are told portions of the Pattern Jury Instructions sometimes altered for the proof of a particular case. That is the art and skill of being a judge. The courts also devise a series of questions for the jury to answer, i.e. causation, damages, etc. That is no longer the plan. While attorneys could always suggest the court tell the jury proposed instructions, it is now required. You now must “provide the court with case-specific requests to charge and proposed jury interrogatories.” Submissions must be by hard copy and electronically. When do you have to do this? That depends on which new rule you read. Rule 31(b) of 202.7(g) says, “at the pretrial conference or at such other time as the court may set.” Under new Rule 202.20(h), it is “on the first day of trial or at such other time as the court may set.” So, you tell me. And by the way, your pre-trial memorandum and request for a charge must only be in 12-point type in a Word document. That rule started March 1 and only applies to “non-paperless commercial parts,” whatever that is. As for other useless time-consuming rules, when every attorney in a proceeding receives a notification of a court appearance, he or she must notify all other parties by e-mail “that the matter is scheduled to be heard on that assigned date and time.” Why does every attorney in a case have to email the information to every other attorney? “There are occasions when the court's electronic or other notification system fails or occasions when a party fails to receive the court-generated notification.” So, get ready to receive the same message a lot and bill your client each time you read it. 202.23(b) How is your binder collection? On the first day of trial, you must submit “an indexed binder or notebook, or the electronic equivalent, of trial exhibits for the court's use.” I am not sure what an electronic equivalent of an indexed binder is, but you must also give a copy to each attorney in the trial. I presume that means no pro se litigants get one. You also need the originals in a similar binder or notebook for witnesses even if you do not have them as they are under subpoena. 202.20h(b) There are a bunch of other things that make little sense. You can only have ten depositions and each one cannot exceed seven hours. You need to submit a proposed order to the court with a motion. An affidavit is limited to 7,000 words and a reply affidavit is limited to 4,200. If you make a summary judgment motion you must have a “separate, short, concise” statement in numbered paragraphs of material facts to which there are no “genuine issues to be tried.” The responding papers must state the genuine issues to be tried in a short, concise, separate statement. I wonder what OCA considers short or concise. You get the idea. The pleasure of practicing trial law for lawyers, judges and staff comes from bringing people to a reasonable, timely resolution of a dispute with reasonable fees. The Office of Court Administration has a different approach. Unfortunately for litigants in New York State, in my opinion the legal fees and the time necessary to comply with these new rules will be significant for the million+ litigants affected annually. Predictably, the Chief Judge has extolled the virtues of the new rules, calling Chief Administrative Judge Marks “fantastic.” At least all those lawyers who show up late unfamiliar with their cases may diminish.

“What is it that makes us trust our judges? Their independence in office and manner of appointment.” Hon. John Marshall On January 5, 2021, a case was argued in New York’s highest court, the Court of Appeals. Two of the attorneys who argued the case are members of the law firm of Greenberg Traurig. Another attorney in the firm, Henry M. Greenberg, was appointed in 2020 to the Commission on the Future of New York’s Courts by Janet DiFiore, the Chief Judge of the Court of Appeals. Attorney Greenberg is also counsel to the New York State Commission on Judicial Nomination. That Commission nominates New York’s Court of Appeals Judges. Attorney Greenberg was counsel in 2015 when Janet DiFiore was nominated to be Chief Judge. Chief Judge DiFiore and others on New York’s Court of Appeals heard the appeal of the two Greenberg Traurig attorneys on January 5, 2021. In 2020, Chief Judge DiFiore was sued in two cases in Suffolk County Supreme Court by, among others, two Appellate Division judges, because of her elimination of judges over 70 years of age to be certified to continue in office. As is her right, Chief Judge DiFiore asked to have a private law firm represent her. On November 30, 2020, the Attorney General approved, and the State Comptroller was authorized to pay for the Chief Judge’s law firm with taxpayer money. On December 29, 2020, Greenberg Traurig filed a Record on Appeal in the Appellate Division, Third Department, stating the law firm represented Chief Judge Janet DiFiore. The attorney from Greenberg Traurig representing Judge DiFiore was Henry M. Greenberg. Therefore, on January 5, 2021, two attorneys from the law firm that then represented Chief Judge Janet DiFiore argued an appeal in front of her. Chief Judge DiFiore did not disqualify herself. Chief Judge DiFiore never indicated to the two attorneys arguing against Greenberg Traurig that she was represented by Greenberg Traurig in any capacity. Neither attorney knew of the representation at the time of the argument. They only found out about Judge DiFiore being represented by Greenberg Traurig after the February 18, 2021 decision written by Chief Judge DiFiore against their clients. On February 9, 2021, Greenberg Traurig’s Henry M. Greenberg argued in the Third Department representing Chief Judge DiFiore. On February 18, 2021, Chief Judge DiFiore published her opinion reversing the Appellate Division and holding in favor of Greenberg Traurig’s clients, Deutsche Bank and Wells Fargo Bank. On March 9, 2021, the Third Department reversed the Appellate Division and decided in favor of Chief Judge DiFiore represented by Greenberg Traurig. Shortly thereafter Judge DiFiore changed her mind and allowed the 70+ year old judges to serve again. Section 100.2 of New York’s Rules of the Chief Administrative Judge on Judicial Conduct state, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities… (B) A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment." Antonin Scalia decided Bush v. Gore in the United States Supreme Court in December of 2000 even though his son had been offered a job before the election by the law firm representing George W. Bush. What was the firm? Greenberg Traurig. The only judges in the United States not subject to Judicial Conduct Rules are the members of the United States Supreme Court. There are 11 members of the New York State Commission on Judicial Conduct. Three of them were appointed by Chief Judge Janet DiFiore.

Politics, Family Court and My Friend Andy C.

“Judge Prudenti and I are both thrilled and gratified this bill passed. With rising caseloads annually, these additional judges we have sought for decades will serve some of our most important litigants, the children and families in New York State." Hon. Jonathan Lippman, June, 2014.
“The freedom to criticize judges and other public officials is necessary to a vibrant democracy.” Sandra Day O’Connor

There are some things I just will never understand and politics is right up there. I tip my hat to the Powers That Be who successfully passed the Judicial Budget and in particular the request for 25 new Family Court judges for the state at a cost of $1 million per year per judge. It’s nice work if you can get it. My state Assemblywoman Patricia Fahy sponsored the legislation and my state Senator Cecilia Tkaczyk said, “Increased caseloads in our Family Courts have created a massive backlog that is having a devastating effect on young children and families.” I haven’t seen either lately in Schenectady or Albany Family Courts, but maybe that’s just happenstance. After all the blathering about the crying need for these guys, I looked up the statistics of that massive backlog for our two new judgeships: Albany and Schenectady. We know there has been a marked decline in filings statewide, so maybe there is a crying need in those counties that are receiving the new judges. From 2009 to 2013, the statewide filings declined 6.8%. In 2009 Albany County Family Court had 17,402 filings and in 2013 it had 15,242. As we know, each child in a petition gets a separate docket number. By my feeble arithmetic, that’s a decline of over 12% in four years. So while each judge handles 719 fewer cases than four years ago, we’ve added another judge making each judge handle 1,290 fewer cases next year than he or she did this year, assuming the decline in filings doesn’t continue. Sounds worth a million dollars per year to me. But hey, maybe Albany County Family Court is just an outlier. Let’s see what’s going on in Schenectady County, home of the Electric City. In 2009 they had 11,409 filings and 2013 they had 9,477 filings. Congratulations, a decline of 17%. Each judge today handles 966 fewer cases per year than four years ago. So, let’s add another one so they can handle 1,579 fewer! For the Fund for Modern Courts, Senator Tkaczyk, Assemblywoman Fahy, Judge Lippman and host of others, thanks a lot. You’ve taken a problem that doesn’t exist, cost us $25 million per year and used the resources where they seem to be least needed. Good work.
Now, I’m not privy to the work requirements of the average Family Court judge. As far as I know, they are plenty busy. But it does beg the question why do Family Court judges in Albany and Schenectady Counties volunteer for Supreme Court work if they are shouldering a backlog of any kind. One of the 25 new judges has been awarded to Ulster County, where both Family Court judges volunteer one day a week to do Supreme Court work necessitating a Judicial Hearing Officer to take the reins. Maybe if they stayed in their own courtrooms, we could save a buck or two.
Here’s another example of the mystery of politics. Remember Cassie v. Cassie ? This was the idiotic 2013 Second Department decision that held that a husband who tries to push his wife down the stairs, twists her arm causing pain and pushes her against a wall does not commit the family offense of disorderly conduct because he did not have the intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof. Order of Protection reversed, petition dismissed, welcome home Mr. Cassie. While Family Court Act §812(1) says that disorderly conduct need not occur in a public place, there is no language changing the intent portion of the law. Well, a fine legislator from Brooklyn named Félix Ortiz introduced a bill to correct this injustice as the Cassie decision subverts the intent of a law designed to protect people who are the victims of domestic violence. Assemblyman Ortiz’ law removes the requirement of “public” intent from domestic violence offenses in Article 8 of the Family Court Act. Sounds like a no brainer to me. So what happens? It was introduced last October and was promptly referred to the Assembly Judiciary Committee where it sits to this day. This committee is chaired by Helene Weinstein and nothing moves there without her say. She touts herself as a fighter against domestic violence and her website is quick to remind us that she “helped launch the ‘Shine the Light on Domestic Violence’ campaign. Assemblywoman Weinstein has long championed rights for victims of domestic violence.” Maybe so, but not the Mrs. Cassies of this state. To her credit, Weinstein’s “Shine the Light on Domestic Violence” campaign did get the lights atop the Empire State Building turned purple for a while. I’m sure that helped. This is the same woman who thought it was a good idea to have permanent maintenance guidelines in New York in spite of the opposition of the NYSBA Family Law Section, the Women’s Bar Association and yours truly. Like I say, I don’t understand politics.
Here’s some other political things that puzzle me, but then again I’m easily flummoxed. The Unified Court System is sponsoring statewide seminars called “Everything You Need to Know About Becoming a Judge.” Maybe former Administrative Judge Kamins should give the lecture as he is back from vacation trying cases. The intent of these things is to “host seminars on the path to becoming a judge in districts where there is a lack of diversity on the bench.” One such soiree was held in Buffalo, another in New York City for aspiring Asian judges and another is scheduled for Albany Law School in September. I’m not sure which group is being targeted there. Here’s the one thing I do know. If you want to be a judge in Albany County, it helps to be favored by Matt Clyne, Election Commissioner to the stars and Chairman of the Albany County Democratic Committee. His idea of diversity recently is that there are not enough Irish American males on the bench in the Third Judicial District. Éirinn go Brách.
The last I looked at Article VI of the New York State Constitution, it was not within the powers of the judiciary to dole out money. Section 29 of that Article provides that the Legislature awards the money for the operation of the court system, but not to give it away to someone else. Surprisingly, the Chief Judge and I disagree about this. He is intent on handing out oodles of cash to charities and organizations deemed appropriate for the “legal services to the poor.” If you don’t believe me, trundle on down to the Court of Appeals on October 6 at 2 p.m. The Chief Judge is holding hearings on the effectiveness of handing out money for the “unmet need for civil legal services by low income New Yorkers confronting legal problems involving the ‘essentials of life.’” So, our judiciary is no longer involved in just operating the courts and dispensing justice. It is now a vehicle for financing social reform and redress, like it or not. I’m not talking chump change here. It started out as $12.5 million for fiscal year 2011-2012, but now it is up $55 million for 2014-2015. Where do I sign up?
Finally, did you get the missive from the Albany County Bar Association about the “Newsletter Committee” which is charged with “reviewing and revamping our monthly newsletter?” After 100 years I guess they thought this was a good idea. They are seeking members with editorial or newsletter experience. I suggested former member and fellow matrimonial lawyer Andrew Capoccia. He was always a very good writer, and he has lots of time on his hands as he has a few more years in the Federal pokey for his white collar crime convictions.
There, I’m glad I got all that stuff off my chest.

Deux Poids et Deux Mesures?

“He has made Judges dependent on his Will, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence
“We are extremely fortunate to have two such outstanding jurists to fill these critically important positions. Judges Kamins and DiMango are widely esteemed members of New York’s legal community, innovative leaders who bring the perfect blend of experience, skills and wisdom to their respective posts.” Chief Administrative Judge A. Gail Prudenti, December 17, 2013.
How is that working out?
On March 14, 2013, the Unified Court System’s Advisory Committee on Judicial Ethics decided that a judge could not sign a petition asking to make some laws more consistent with the Constitution. This applied even if the judge signed without divulging his judicial status. After all, that would be an appearance of impropriety (22 NYCRR 100.2), not promoting public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]), and lending the prestige of judicial office to advance the private interests of the judge or others (22 NYCRR 100.2[C]). I was reminded of that particularly close reading of a judge’s political behavior when I learned about the guy who had taken my dream job. Remember last year when the Numero Tres in the hierarchy of the Judicial System, just behind Chief Judge Lippman and Chief Administrative Judge Prudenti left to be the Executive Director of the Sanctuary for Families? That organization had just received $308,637 of taxpayer money thanks to the vote of Judge Prudenti on an Oversight Board. So, who could blame her? Well the Administrative Judge job opened up and I thought I was the perfect candidate. “Chief of Policy and Planning for the New York State Courts” requires you to “work with judges throughout the state to develop strategies and programs to improve the delivery of justice in the trial courts, as well as provide training and support for the Integrated Domestic Violence, Drug Treatment and other Problem-Solving Courts.” It oversees 300 problem solving courts, and who is better with problem solving courts than me? It comes with a nifty OCA car and a driver! Unfortunately the Powers that Be thought that Barry Kamins would be better than me. Darn. And just who is Barry Kamins? He is a Supreme Court Justice and the former Chair of the Ethics Committee in the 2nd and 11th Judicial Districts. For many years he has been the chairman of the New York State Bar Association Committee on Professional Discipline. He taught young prosecutors legal ethics. So you know Judge Kamins knows his stuff about ethics and all. Who wouldn’t appoint him? That’s just what Chief Administrative Judge Prudenti did with the approval of Judge Lippman last December. Welcome aboard, meet your new driver, and by the way here’s an extra $10,000 in salary.
So, it came as a surprise that Judge Kamins popped up in a City of New York Department of Investigation Report called “Regarding Misconduct by Former Kings County District Attorney Charles J. Hynes, Justice Barry Kamins and Others.” Holy smokes. It seems that a review of 300 of Judge Kamins’ e-mails (mostly from his official judicial e-mail account) and 800 of DA Hynes’ e-mails revealed that Justice Kamins engaged in political activity by advising DA Hynes about his reelection campaign, issues of trials with the Kings County DA’s office and provided Hynes with legal advice about a lawsuit involving his political campaign. How could that be? Is there another Judge Kamins out there? It seems that a few weeks before his ascension, Judge Kamins was e-mailing DA Hynes about how to handle a political opponent in a debate, advising how to word a statement about the primary, writing of speaking to a New York Times editorial board member and a New York Law Journal Editor in Chief about the campaign. The report gives specific quotes from Judge Kamins’ e-mails and concludes, “Many of these e-mails demonstrate that Judge Kamins engaged in political activity as a sitting judge, i.e. by advising Hynes regarding his campaign, and engaged in ex parte communications with Hynes regarding matters actively being prosecuted by the KCDA [Kings County District attorney].” They conclude that Judge Kamins used the prestige of his judicial office to advance Hynes’ political interests. The report states that this conduct “implicate various provisions of the Code of Judicial Conduct.” No kidding.
So, there you have it, chapter and verse of actual violations of the very Code of Judicial Conduct that the Commission on Judicial Conduct prosecutes for far less egregious conduct. And the good thing here is that all the work has been done by an independent board with all the proof anyone would need. So, I’m sure Judge Kamins was immediately removed from the bench and faces discipline both as a jurist and a lawyer, right?
Well, not exactly. For their part, OCA immediately stripped Judge Kamins of his Administrative Judgeship, took away his car, driver and raise. Then Judge Kamins went on vacation, using up his store of free time, so he hasn’t been serving the public as a Supreme Court Judge in a while. But the response from the Commission has been silence. I had the pleasure of speaking about this with the Director of Communications of the Unified Court System who called me 70 minutes after I sent in one of my annoying Freedom of Information Law requests. After answering my inquiries, he added the following: (a) After removing Judge Kamins as an Administrative Judge, there is nothing further OCA can do as that is the job of the Commission on Judicial Conduct and (b) historically, the Commission has not been very quick to act on complaints of judicial misconduct.
As for (a), I am sure it should be a source of comfort and relief to the local Supreme Court Judges that OCA has now confirmed that they can’t do anything to you. You heard it here first. You can ignore all those stupid forms about motions, trial schedules et alia and every annoying regulation and rule that detracts from your real job of dispensing justice to the people who elected you. Just go back to trying cases and shepherding people through the system so their issues can be resolved quickly and fairly. If OCA doesn’t like how you do business, who cares? They cannot do anything to you. They said so themselves.
As for (b), it depends on your definition of quick. The Commission has the power to initiate its own investigations under the Judiciary Law, and it does so frequently. They can ask a judge to appear within three days. They even have the power to move for a summary determination of the matter if the misconduct is clear. As for the historical speed of the Commission, when they want to, they can file a complaint within one month of the offending conduct and move for a summary determination one month later.
So, what’s the problem? Why is OCA so quick to let us know that these things take time, when they really don’t? All of the necessary proof has been served up on a platter for the Commission. Vacation or not, Judge Kamins remains a sitting Supreme Court Justice. Or is there a different standard for Executive Administrative Judges than the rest of the Town, Village, County and Supreme Court Justices of the Empire State? That can’t be, can it? Does it matter that the Chief Judge appoints 3 of the 11 members of the Commission? I doubt it. After all, the payment of hundreds of thousands of dollars to a charity considering the hiring of an Executive Administrative Judge is not lending the prestige of judicial office to advance the private interest of another. No, that was for the delivery of legal services to the poor, even though the organization is an active lobbyist for maintenance guidelines and other legislation. After all, it’s not like the judge is signing a petition. That would be wrong. Maybe it’s just that it’s summertime, and the living is easy.
At least my dream job is once again available, so where do I sign up?
Advisory Committee on Judicial Ethics Opinion 13-17
This was the award for the 2013-2014 state fiscal year. It raised to over $800,000 the amount awarded over three years. The full name is the Oversight Board for Judiciary Civil Legal Services in New York. I can’t wait to see what they award this year.
Judiciary Law, Article 2-A, Section 44(2).
Judiciary Law, Article 2-A, Section 44(3).
Commission Rules 7000.6(c)
Matter of Cooley, September 9, 1980.

Mali, My New Job and Judicial Discretion

“Bureaucracy expands to meet the needs of the expanding bureaucracy.” Oscar Wilde
“I credit both the Commission [on Judicial Conduct] for pursuing violations of the rules governing judicial conduct and the Court of Appeals for essentially supporting the commission’s efforts.” Hon. Carmen Beauchamp Ciparick, former Court of Appeals judge, November 13, 2013
“This is a court of law, young man, not a court of justice.” Oliver Wendell Holmes, Jr., “The Great Dissenter”
Have you ever been to Mali? Me neither. Although it has had its share of political and economic troubles lately, Mali governs over 14½ million people in West Africa. It has universal education, a rail system, an army and an air force. The military is at war with rebels in the North. Mali does all this on an annual budget of $2.3 Billion, which happens to be the current annual budget of our very own Office of Court Administration. I am pretty sure the Office of Court Administration does not have an Air Force, but this month we will learn if they need more money and chances are they will. Last month the Chief Administrator gave us a glimpse of what we get for all those spondoolies with her annual report. In it, she extols the uncompromising insurance of the Judiciary’s “core mission” while “adapting to the new economic reality.” Just what is the new economic reality? In 1997 the economic reality was a budget of $952.2 million, so I guess it is hard to make ends meet on a mere $2.3 Billion. Let’s see what we get for that. In 1997 the Appellate Divisions handled 11,676 appeals. In 2012, they handled 9,693 appeals. Our own Third Department declined from 2,205 to 1,821. OK, but how about the trial courts? In Supreme Court, the new filings in 1997 were 184,829. In 2012, 174,424. Much to my dismay, uncontested matrimonials declined from 50,254 in 1997 to 46,201 in 2012. Now, was 1997 just an anomaly? Thankfully the bean counters at the Office of Confused Adults give us the answer. In 2008 there were 4,671,265 filings in our civil courts. In 2012, 4,058,891, a decline of over 13%. Every year has declined since 2008.
All of this begs the question, why does it cost us nearly one and a half billion dollars more to resolve fewer cases than in 1997? Beats me. Maybe the psychologists who teach about judicial stress at the Judicial College are breaking the bank. Or maybe it was the $23 million for rooms for the out of town Court of Appeals judges that never came to fruition after the money was spent. Or maybe the $25 million largesse for the favored charities of the Unified Court System. You know, running a Human Trafficking Court, a Community Dispute Resolution Center, a Matrimonial Neutral Evaluation Program, Problem Solving Courts, a Mental Health Court, a Mediator Ethics Advisory Committee, a Collaborative Family Law Center, a Diversity Gender Fairness Committee, Lay Guardian Training (you think I’m making this up, don’t you?), a Child Welfare Court, Children’s Centers and a myriad of Commissions, Boards and Committees for whatever cost a lot of dough. Besides, inflation. Yeah, inflation.
One of these OCA dreams is the Oversight Board to Distribute Judiciary Legal Service Funds in New York. Who names these things anyway? The Oversight Board is charged with reviewing the numerous supplicants for the discretionary $25 million in this year’s budget and to hand out the cash. It seems that the Oversight Board consists of just three people: the chair of something called the Task Force to Expand Civil Legal Services in New York, the Chair of the IOLA Board of Trustees and the Chief Administrator herself. Well, in 2013 they gave $308,637 to something called Sanctuary for Families, which is a nonprofit with administrative expenses of just over $1.5 million.
All of this brings up the real news of the month, My New Job. You see, in the website of the administration of the Unified Court System, Numero Cinqo on the hit parade just after the Chief Judge and the Chief Administrator is the “Chief of Policy and Planning for the New York State Courts.” I know I’d be great at it. One has to “work with judges throughout the state to develop strategies and programs to improve the delivery of justice in the trial courts, as well as provide training and support for the Integrated Domestic Violence, Drug Treatment and other Problem-Solving Courts.” The position oversees 300 problem solving courts, my specialty. I could do that in my sleep, and it pays $168,600 per year plus benefits. I might even get one of the spiffy Unified Court System cars or maybe a driver. The current holder of the office is the Hon. Judy Harris Kluger, but she’s leaving the job on December 31 so she can be the Executive Director of Sanctuary for Families. Yes, that Sanctuary for Families who received over $300k this year from Numero Duo in the Court System. Nice, very nice. So, where do I apply?
Finally, in a Thanksgiving present to the voters of Albany County, the Commission on Judicial Conduct determined that our Surrogate Judge should be removed from office. Good for them. And just why did they take this extraordinary step? Because she exercised her discretion. That’s all. You see, the decision to recuse or disqualify oneself is discretionary with each judge. Here, she apparently presided over cases involving someone who worked really hard on her campaign, albeit without her knowledge of the scope of his work. We know that because she said so under oath, and she was found to be a “credible and candid witness” who “told the truth” by the Referee appointed to hear the matter. Of course this was not good enough for the sanctimonious members of the Commission or at least eight out of ten of them. That and having friends appear in various uncontested matters before her merited her removal. As far as I can tell, not one citizen who came before her complained or was otherwise disadvantaged by any of her actions. Not one person ever received less than fair treatment during her twelve years of service to the citizens of Albany County. Apparently that counts for nothing to the Commission as they held that she violated the rule that states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Of course no member of the public expressed a loss of confidence in the Surrogate, but that did not matter to the Commission. She also ran afoul of “lending the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” Again, she apparently conveyed that impression to no one, and certainly her private interests or others were not enhanced by her actions. It’s not like she awarded $300,000 of public funds to a charity where a fellow Executive Officer of the Unified Court System applied for the Executive Directorship. Finally she supposedly ran afoul of the rule that, “A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.” This is in 22 NYCRR 100.3E(1) and that Rule has seven lettered subparagraphs defining where a judge can run afoul. This includes presiding over matters where the judge has personal bias or prejudice, is related to the litigant, was the lawyer for the matter in controversy, et. alia. As far as I can tell, none of the subparagraphs apply here, but we’ll never know as the Commission can’t be bothered to give us a citation to any specific lettered subparagraph. It is as though they think it is just fine to say, “You cannot be a judge because you violated Rule 100.3E(1) and you go figure out which of the subdivisions you violated in your new spare time.” Thanks a lot guys, and thank you from the voters of Albany County for undoing what we did two years ago.
And you sitting justices out there, does this give you a little pause? You could lose it all and be publicly excoriated by the Commission for exercising your discretion to recuse. I have been trying to figure out just how much work an attorney can do to elect what he or she considers an excellent candidate for judicial office. The Commission certainly doesn’t answer that question. But we now know that even if you did not know about it, if I put up a lot of signs for you and mail out invitations to a fundraiser, you may have to disqualify yourself from having me in your court. So, don’t take it personally, but from now on I am exclusively working on the campaigns of judges who I believe should never wear the black robes. Hopefully, they will pay attention and throw me out of their courts when I show up lest the Commission come calling. So, Happy Holidays, members of the Judiciary. You have my sympathy and my admiration. Better you than me.
Technically the Report of the Chief Administrator of the Courts for Calendar Year January 1 through December 31, 2012. It makes you wonder why they do it this way since the Budget of the Court System is April 1 through March 31. Go figure.

The Prestige of Judicial Office and Other Fables

“Judge: a law student who marks his own examination papers.” H.L. Mencken
“It is not a justice system. It is just a system.” Bob Enyart
“The United States is a nation of laws: badly written and randomly enforced.” Frank Zappa
In 2008, a Surrogate Judge named Dennis LaBombard was removed from office by the Court of Appeals for, among other things, telling someone that he was a judge after he was involved in a minor car accident. You see, Rule 100.3(C) of the Code of Judicial Conduct provides that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” In 1999, the Court of Appeals removed the East Greenbush Town Justice for handing out pamphlets in his courtroom for a private defensive driver course. More recently, the Commission on Judicial Conduct admonished Appellate Division, Fourth Department Justice Nancy Smith for violating Rule 100.3(C) for writing to the Division of Parole Board on behalf of a young man. She used her judicial stationary. As we know, the Commission on Judicial Conduct has a very low tolerance for any use of the prestige of office to advance the simplest opinion. They have used Rule 100.3(C) 94 times dating back to 1991 to discipline judges. Heck, they went so far as to publish a nifty 65 page report in May to answer the burning question of whether the use of judicial license plates violates this Rule. The answer: No, they don’t, but they could, so let your spouse and kiddies know if they use your car.
So, it came as somewhat of a surprise that the “Powers That Be” at the Unified Court System asked that the Administrative Judges send out a Memorandum on official Unified Court System letterhead with a “synopsis” of the Ballot Referendum increasing the age limits for Court of Appeals judges. Of course, this affects the impending mandatory retirements of two Court of Appeals Judges including the Chief Judge. The “synopsis” was prepared by the Counsel’s Office of the Unified Court System for circulation to all Supreme, County, Family, Surrogate and City Court Judges. It contains seven bullet points of “Arguments in Favor of Vote for Constitutional Age Reform”. My favorite is that “Judging is a ‘Late Peak’ Occupation.” Who would have guessed that? I wonder which of Unified Court System counsel thought that one up. From my personal experience, I can assure you that matrimonial law and lifeguarding are NOT Late Peak occupations. In any event, the OCA counsel’s synopsis contains no arguments against the Vote for Constitutional Age Reform, a clever term of art in and of itself. In other words, this is a flyer to publicly lend the prestige of the whole darn New York Court System to an amendment to the constitution that will be voted on by the hoi polloi of New York State in November.
Now, just to allay the fears of the judiciary about the propriety of this Memorandum, it refers judges to the Chairman and Chief Counsel of the Advisory Committee on Judicial Ethics “to provide ethical guidance.” Amen to that brother. Did you know there is a toll free Judicial Ethics Helpline for this stuff, just in case there is a judge’s question that needs an answer in the middle of the night, like can I tell an off color joke at a Policeman’s Benevolent Association function? Answer: Apparently not. It is kind of like Siri for Judges, just in case you need to know. The rest of us just rely on our local bartenders.
And just what is the Advisory Committee on Judicial Ethics? It is a 26 member Committee to “interpret the Rules governing Judicial Conduct.” Their website has a “Judicial Quiz” to sharpen the skills of the judiciary and avoid the pitfalls of ethical challenges. They also have a list of all opinions, but of course the one relating to the November vote is not available. Here is my personal favorite. In March of 2013 they opined that a judge as a private citizen could NOT sign a petition sponsored by a legislator, even without divulging the judge’s status as a judge. That of course would lend the prestige of judicial office to advance the private interests of others. Heavens no, that would be improper. And just what is so improper about signing this petition? It “advocates that certain laws be amended to be more consistent with the United States Constitution.” Now, just how the Commission’s counsel and Chairman distinguish the Unified Court System’s efforts here with that opinion is beyond me, and the use of Office of Court Administration letterhead for just such a purpose does make one wonder if there are two different ethical standards for the judiciary and the Office of Court Administration. No, that couldn’t be. Just because the Chief Administrative Judge is on the memo’s letterhead doesn’t mean that the prestige of that office is being lent to anything, does it?
And by the way, is it true that the local Supreme Court and Appellate Judges were “asked” by the Office of Court Administration if they would speak to adult home and nursing home residents about the proposed Constitutional Amendment? That couldn’t happen could it? I wonder what would happen to me if I asked my employees to speak to people about some constitutional amendment I liked.
Need more evidence? Ever hear of David Bookstaver? He is a “spokesman” for the Unified Court System, and boy do they need a spokesman. He recently told the New York Law Journal, “This is an amendment that will be good for New Yorkers, good for the judiciary, and good for the entire State. We appreciate any effort to raise awareness and support of this crucial amendment.” I am presuming he was using the royal “we” in that sentence. In any event, he recently told Capital New York, “On any piece of legislation or any referendum, we look carefully at what we can do. We can't raise money, we can't do campaigning, but we can certainly tell the public why this is good for the court system. The judges should know why and be able to tell the public why.” Sure, unless you want to sign a petition without even saying he is a judge if that advocates a legislative change. And by the way, want to know what a Unified Court System spokesman earns? Just shy of $135,000 per year. Where do I sign up?
Oh well, let’s see what else is new with our court system. Did you know we now have a Human Trafficking Court? It is for people accused of prostitution. As OCA puts it, “All cases charging prostitution or related offenses that continue past arraignment will be transferred to the Human Trafficking Court, where they will be evaluated by the judge, defense attorney and prosecutor.” I can’t imagine what prompted all this, or what it will cost, but being all things to all people, the new system will “link participants to education and job training programs to help prevent their return to the commercial sex industry.” Sure, why not? I suggest merging the Human Trafficking Court in Albany with the city’s Traffic Court. Maybe we’ll save a buck or two.

Matter of LaBombard, 11 N.Y.3rd 294 (2008)
Matter of Assini,, 94 N.Y.2d 26 (1999)
Matter of Smith, Commission on Judicial Conduct Opinions, June 1, 2013.
You can read the whole tome here:
http://www.cjc.ny.gov/Publications/nyscjc.JudLicPlateRep.2013-05-07.pdf

Matter of Ramich, March 12, 2012.
Opinion 13-17, March 14, 2013.
New York Law Journal, “Group Will promote Amendment to Raise Judge’s Retirement Pay” by Joel Stashenko, September 9, 2013
“In a Memo Judges Share Retirement age Talking Points” by Jimmy Vielkind, Capital New York, October 21, 2013.

Austerity, Largesse and Cool Whip

“Getting married is like trading in the adoration of many for the sarcasm of one.” Mae West
“I never hated a man enough to give him diamonds back.” Zsa Zsa Gabor
“This budget request is austere, as is required by the State’s fiscal outlook, and will require that the court system continue to reduce costs …The budget provides the minimum funds the Judiciary needs; any further reduction would seriously jeopardize the ability of the courts to fulfill their core mission.” Executive Summary, New York State Unified Court System Budget, Fiscal Year 2013-2014.
Apparently the “core mission” of the cash strapped Unified Court System this year is to dole out an additional $15 million more than in 2012-2013 to some pretty lucky organizations. Why? In a line item in the austere Budget cleverly called “Judiciary Wide Maintenance – Undistributed” was an extra $15 million “to assuring that the Judiciary meets its constitutional mission to ensure equal justice for all.” In other words, the trough was open for whoever stood in line with their hand out. Now we know who received the largesse of the Office of Confused Adults. How? Well, they brag about it on the website, and why not? In a report of something called the “Oversight Board of Judiciary Legal Services” the winners were announced. And just who are these guys on the Oversight Board? It is hard to say. But their nifty 27 page “Application Forms and Instruction Booklet” says that the money is to “ensure that the ‘essentials of life’ – housing, family matters, access to health care and education, and subsistence income – are provided for throughout the state.” I’m not sure when that became a function of the court system, but here it is.
The winner is (envelope please) Legal Services NYC with $1,632,033. A self-proclaimed Voice for Justice and a Force for Change, this organization has a nice link to an explanation of the Marriage Equality Act that asks, ”Should I get married?” I love that one. The answer? “Marriage is a profound emotional, social, and legal commitment to another person.” Thanks for clearing that one up.
But after all, there are other winners too. 54 of them. And just who is scoffing up the crumbs of our judicial austerity? How about Day One, “the only organization in New York City solely devoted to the issue of teen dating violence.” Sounds good to me. Or something called “CAMBA” which is a “non-profit agency that provides services that connect people with opportunities to enhance their quality of life.” OK. Or how about Journey’s End Refugee Services, a not for profit organization “formed to sponsor and resettle refugees to Western New York.” I’m glad my Judiciary is involved in that task. OCA provides over half of the “contributions and grants” reported on their tax return. How about my favorite, The Door, which provides counseling services for the “Lesbian, Gay, Bisexual, Transgender, or Questioning (LGBTQ)” members. Count me in the Questioning category there. These are certainly fine organizations, but I am not sure what part of the mission of the Judicial System allows OCA to dole out $15 million for this stuff. I’ve taken a gander at Article VI of the New York State Constitution which creates the Judiciary, and I really cannot find this form of payola as part of the Prime Directive or as they put it, their “constitutional mission.” Maybe it is somewhere else.
Well, enough of that. On a better note, in a surprise to me, the Second Department wrote the following in August: “Thus, we are in agreement with our colleagues in the Appellate Division, Third Department…” See, all that “you guys got it wrong” nonsense is just that. And they said it would never happen. The issue here was whether a court could grant relief that is not contained in a Notice of Cross Motion. The answer is “yes” in the court’s discretion, but is always better to let them know what you want in the Notice of Motion.
Seven days later, the Second Department gave us a nice Child Support Standards Act gem in the Beroza v. Hendler. Here, the mom earned $487,000 and the dad had imputed income of $259,000. The Support Magistrate and the Family Court capped the combined income for child support at $255,000 after considering and explaining the appropriate statutory factors. Not enough for the Second Department, and they moved the cap to $400,000 since the capped figure was “an amount which was only marginally higher than the plaintiff's net annual income of $248,721.00. The capped amount, in effect, improperly excluded consideration of the mother's net annual income of $487,693, contrary to the cost-sharing scheme directed by the CSSA.” Now, I am unaware of any cost-sharing scheme directed by the CSSA as child support is generally a function of income, as here. Also, just how is the mother’s net annual income excluded by a cap on combined income? So, the Second Department now has new factors for application of the cap, so let’s all take note. Hopefully the colleagues in the Third Department will not agree. The result of this decision is that dad must now pay just shy of $40,000 tax free to supplement mom’s paltry $487,000 income. It was an increase of about $15,000 per year presumably retroactive to 2007 or over $120,000. Ouch.
For all you Black Keys fans, did you see that lead singer Dan Auerbach had to part with some of Bob Dylan’s hair in his final divorce settlement with his ex-wife Stephanie Gonis? That plus $5 million and a Toyota Highlander. All from the guy who sings “someone said true love was dead.” Well, maybe it is.
Do you like Cool Whip? Me too, especially Extra Creamy. Did you know it is made in Avon, New York? Avon is a town of about 7,000 people in Livingston County south of Rochester. Not much happens there other than Cool Whip manufacturing, but that didn’t stop the gremlins from the Commission on Judicial Conduct from snooping around. And what did they find? My hero of the month, the Hon. Michael A. Torregiano. For ten years he has been the Town Justice of the Town of Avon with an unblemished record. Judge Torregiano is not a lawyer, but most of the town justices in New York are non-lawyers. Just before New Year’s Eve in 2010, the Town Board of Avon went into executive session to consider whether to raise the pay of Judge Torregiano. When they declined to give Judge Torregiano any more money, he reminded one of the councilmen that he had taken care of his daughter’s ticket and that the Board had “shoved it up my ass.” Now the councilman’s daughter did not receive any special treatment or consideration, but what the heck. To the Commission, these comments merited a Public Censure. Geez. And just what part of the Judicial Code was violated by Judge Torregiano’s expressions of opinion? Failing to “uphold the integrity and independence of the judiciary by failing to maintain high standards of conduct so that the integrity and independence of the judiciary would be preserved.” Sure. The integrity of the judiciary was really harmed by the “shoving it up” comment of Justice Torregiano? Do you think there may be a judge or two in New York who has had similar sentiments about the Commission? One wonders what it cost the taxpayers for that investigation. Maybe if Judge Torregiano wants a little more money he should fill out an application with the Oversight Board of Judiciary Legal Services. It couldn’t hurt.

http://www.nycourts.gov/reports/trialcourtrestructuring/ctmerger2802.pdf
Fried v. Jacob Holding, Inc., __ A.D.3rd __ (2nd Dept., August 7, 2013).
__ A.D.3rd __ (2nd Dept., August 14, 2013).

As Bad As It Gets

“I first met my wife in the Tunnel of Love. She was digging it.” Len Dawson
“A judge is a law student who marks his own examination papers.” H.L. Menken
“Our courthouse doors are always open until 5 p.m.” A. Gail Prudenti, Chief Administrative Judge, New York State Court System, Letter to the Editor, Times Union, July 9, 2013
Really, Judge Prudenti?
OK, here’s how bad things are. A father tries to push his wife down the stairs. He pushes her up against a wall and twists her arm causing pain. So, mom seeks an Order of Protection in Family Court so hubby stays away from her. After a hearing, Family Court finds that the husband had engaged in disorderly conduct and issues a two-year Order of Protection. Sounds good to me, but not to the Second Department who held this is not disorderly conduct as a matter of law! Say what? How about assault or harassment, as in striking, shoving or subjecting someone to physical contact? No? Really? In a cruel and incomprehensible decision, the petition was dismissed and the Order of Protection thrown out. Why? It seems that the definition of disorderly conduct requires activities with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” So, unless you are intending to cause public inconvenience, annoyance or alarm, feel free to shove, push, twist and hurt your wife, at least in the Second Department. I know what you’re thinking. The Family Court Act says that disorderly conduct in a family offense proceeding “includes disorderly conduct not in a public place.” According to the Second Department that provision applies only to where the act occurs, not the intent. So long as the neighbors don’t hear you smack your wife around, all is well, or as they put it “under circumstances where the public may reasonably expected to see or hear the altercation.” They point out that since the wife never said the husband was screaming, all was perfectly fine in the home. As for the clear violation of the assault and harassment statutes, in the words of Emily Litella, “never mind.” Now I am not much for any more laws to clutter the Family Court Act, but if this level of judicial truculence is their interpretation of the Family Court Act, a simple sentence in Article 8 might correct this unbelievable injustice. Just a thought.
So, just for a little common sense, let’s return to the Third Judicial Department, the brainchild of Nobel Peace Prize winner Elihu Root some 120 years ago. No, I don’t think he won the Nobel for the creation of the 3rd JD, but he should have. Like other appellate courts in New York, the Third Department slips into the Arms of Morpheus around mid-July, and except for an occasional election law decision we read nothing. Just to give us some cud to chew on for the summer, on June 27 they handed down twelve custody decisions. Yippee. Here’s my favorite. Did you know a child can live primarily with one parent and the other can have sole custody? Neither did I. Neither did the Albany County Family Court judge in Matter of Deyo v. Bagnato, but that’s just what the Third Department imposed in a modification of custody petition. While the children were with dad most of the time, he was hardly a good candidate to make choices. His idea of cooperative communication with the mother was to call her a "f***ing crack whore" in the child's presence. Also, in this decision the Sages of State Street reversed an award of “Modified Joint Custody” which is still looking for its first Third Department Seal of Approval.
Eight days before the Deyo decision, the Second Department weighed in on their unique view of joint custody. In Matter of Jacobs v. Young, the Second Department upheld an award of sole custody to mom but directed that dad have sole decision making with regard to the child’s education. As they held, “it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent.” Of course, this is just the trend to have courts micromanage all aspects of parental authority when parents cannot decide. Hey, we now have trials on where children go to school, so why not see who can decide what? After all, we know some parents are willing to litigate most every aspect of the child’s life. It just seemed easier when the courts didn’t participate in that silly game.
Not to be outdone on the wacky side of custodial disputes, the Fourth Department weighed in on reversing a custodial award solely because of things that occurred after the trial! If you don’t believe me, take a gander at Kennedy v. Kennedy, which held, “Specifically, in deciding the custody issue in the mother's favor, the court relied on evidence that the mother had become self-supporting and was living in her own apartment. We have now been informed, however, that the mother has since lost her job and her apartment and has moved in with her own mother. We therefore reverse the order and remit the matter to Family Court for an expedited hearing on the issue whether the alleged change of circumstances affects the best interests of the children.” Are you kidding me? Can you imagine the Family Court Judge wondering what she could have done to prevent her ultimate reversal? Clairvoyance? And doesn’t the Fourth Department subscribe to the principle of dehors the record? That’s the crutch that appellate courts have used for over one hundred years to deny an appeal as appellate courts are not supposed to consider anything that was not before the lower court. After all, that would be unfair. However, to quote from the Fourth Department a mere seven days after the Kennedy decision, “Defendant's further contentions in his pro se supplemental brief that he was otherwise deprived of effective assistance of counsel and that he is entitled to a new trial in light of newly discovered exculpatory evidence are based on matters dehors the record and thus cannot be reviewed on direct appeal.” What is even more galling is that two of the four judges who decided Kennedy denied this appeal for just what they did a week before.
The most aggravating aspect of advising clients on the laws affecting his or her dispute is inconsistency in judicial guidance. Sure, we all dislike decisions we think are wrong, but we can deal with that and clients could care less about what we like. They just want to know what is going to happen. When the same appellate court tells us two completely different things in the same week, it’s time to crack open the Makers Mark and ponder a career in dentistry.
Finally, what would this world be without the entertainment of the websites of our beloved court system? If you are a regular visitor to the Third Department site (and who isn’t), you will learn that the Sages felt it necessary to pass a rule that you cannot receive or make a telephone call within the Third Department’s courtroom, even if the judges are not on the bench. Technically this is a Policy Statement, and I’m not sure of the difference between that and a Rule. Also, the use of electronic devices within the Court Facility is subject to the Presiding Justice’s ability to prohibit activity “that may otherwise be contrary to the administration of justice.” I’m still trying to figure that one out. The above quoted Chief Judge A. Gail Prudenti has lobbied recently for a constitutional amendment that would raise the age that Court of Appeals judges can sit from age 70 to age 80. Guess whose boss is the only person affected by that amendment? Speaking of which, the Chief Judge has created another new 20 member “Committee on Non-Lawyers and the Justice Gap.” Now, don’t get me going on the term “Justice Gap,” but in announcing the Committee in late May, Chief Judge Jonathan Lippman said, “You could have a non-lawyer who is an expert in a particular area who may be even more helpful to a person in need than a lawyer who isn't expert in that area.” I’m pretty sure he wasn’t talking about plumbers. In any event, that sure made me glad I went to law school and honed my skills for a few decades. Now, where is that Maker’s Mark?
Penal Law Section §240.20.
Family Court Act §812(1)
Cassie v. Cassie, __A.D.3rd __ (2nd Dept., 2013).
107 A.D.3rd 1317 (3rd Dept., 2013)
__ A.D.3rd __ (2nd Dept., July 19, 2013), and why the later Deyo case has an official citation but this one doesn’t is just one of life’s little mysteries. Maybe the Great God of Official Cites likes the Third Department better. So do I.
107 A.D.3d 1625 (4th Dept., 2013)
Literally “out of” or “foreign to” from the French deforis meaning from the outside, it has been used over 1700 times in reported decisions and has been cited by the Court of Appeals over 50 times dating to its third year of existence, 1850.
People v. Wilson, __ A.D. __ (4th Dept., July 5, 2013). And the dehors the record excuse is hardly limited to criminal matters. See the Fourth Department’s child custody decision in Fox v. Fox, 177 A.D.2nd 209 (4th Dept., 1992)
New York Law Journal, “Non-Lawyers May Be Given Role in Closing 'Justice Gap'” by Joel Stashenko, May 28, 2013.

Mother of the Year and Other Tales of Bureaucratic Folly

“I want a man who is kind and understanding. Is that too much to ask of a millionaire?” Zsa Zsa Gabor
“If you want to sacrifice the admiration of many men for the criticism of one, go ahead, get married.” Katherine Hepburn
“There's only one way to have a happy marriage and as soon as I learn what it is I'll get married again.” Clint Eastwood

Well, I may have voted too early. Sure Melody M. was a fine candidate for Mother of the Year 2013, telling a judge that she called her son an “asshole” on Facebook because he was, well, an asshole. That was before Keeley BonHotel sought redress in the Third Department for the injustice of awarding custody of her son to the father. It seems Ms. BonHotel was in love with a guy she met on the internet. Five months later, she quit her job and made plans to relocate to lovely Decatur, Alabama with her three children. Not wanting to spring this on Dad at the last minute, she let him know the night before she left that he wouldn’t be seeing his son so much anymore. What’s wrong with that? She was after all engaged to marry the Decatur Lothario, even though she and the fiancé were still married to others at the time. No matter. She argued to the Third Department that it was completely wrong to shackle her and the child to Warren County since Decatur, Alabama offered “greater diversity and cultural opportunities for the child.” Who could argue with that? It is after all the “Home of Meow Mix” and Alabama’s education programs rank 44 out of 50 states in the category of “Chance for Success” in the U.S. of A., but who’s counting? New York is 16th. In a heartless defeat for True Love, a unanimous Third Department upheld the custodial grant to the father crediting for some reason Mom’s statements to the child, “When you are with Mom, you are home. You are just with your Dad, that is not your home." You might be a redneck if…..
What else is new and entertaining in the law this month? My favorite Commission this side of the Third Reich’s Auswärtiges Amt, The Commission on Judicial Conduct removed a Town Justice from office and extracted a promise from him never to be a judge in New York for the rest of eternity. His offense? Among other things, confronting a 15 year old kid he suspected of stealing from him, yelling profanities at him, taking his bicycle and returning it to the parents. Now just how this reflects on a judge’s ability is beyond me, let alone what could possibly be the violation of any Rule. Well, according to the boys at the Commission, this violates 22 NYCRR 100.2(A) and 100.4(a) in that he “failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and “he failed to conduct his extra-judicial activities so that they did not detract from the dignity of judicial office.” Really? This interaction detracted from the dignity of judicial office? Not to my eyes, but I guess a judge must open his life to all aspects of scrutiny if he seeks judicial office in New York, as the Commission has its own unique view of dignity. If this kind of private interaction justifies removal from office, I daresay I wouldn’t last more than a week on the job. Just ask my neighbors.
Of course, that is just the tip of the iceberg in the court system News of the Weird this month. Remember the Chief Judge passed a Rule requiring us to keep track of the time we spend on voluntary unpaid pro bono services to the poor and underserved clients? Of course this must be read with the Chief Judge’s Rule 6.1(a)(1) requiring us to “aspire to provide at least 50 hours of pro bono legal services each year to poor persons.” Well this rankled a few organizations as the interpretation of the services to the poor and underserved is a bit too vague and so on June 7, 2013 the lead counsel to the Unified Court System clarified that this includes a host of other even more ill-defined tasks, such as “activities related to improving the administration of justice by simplifying the legal process for, or increasing the availability and quality of legal services to, poor persons.” Are you kidding me? This is laughable as the Unified Court System and its bureaucracy has been the number one enemy of simplifying the legal process for poor and rich alike. Just ask anyone who has recently filled out the silly, useless Matrimonial Request for Judicial Intervention Addendum otherwise known as UCS-840M. Or try the one of the 30 forms of the “Uncontested Divorce Packet” which ludicrously states, “This divorce packet may not be for you.” Or anyone else thank you very much.
By the way, the nifty Uncontested Divorce Packet form of the Automatic Orders does not have the updated Automatic Orders. It seems like the OCA bean counters cannot even keep up with their own silliness. As pointed out by Bruce Wagner in his column last month, the Orders, which are not really Orders anyway, were amended in January to include a statement that “The failure to obey these automatic orders may be deemed a contempt of court.” Putting aside that the Divorce packet alters this language, maybe the failure to obey will be contempt and maybe it won’t. The last I looked an Order is something signed by a judge, not attached to a summons by a lawyer. Saying so it won’t make it so. But OCA thinks that an Order of the Chief Judge to attach some notice to a summons constitutes an order punishable by contempt. Not to me it doesn’t. Imagine the jailhouse conversation, “What are you in here for?” “Well, the Chief Judge ordered that the Summons in my Divorce contain a notice that I not change the beneficiary of my life insurance, and when I did I was thrown in the slammer. That, and donating my shirts to Good Will. What are you in here for?”
Finally, did you see that Taiwan’s Minister of Culture, Lung Ying-tai, said she is embarrassed by Criminal Code Article 239 which provides that "married spouses who commit adultery be imprisoned for up to one year.” One commentator says that this archaic law puts Taiwan on “an inglorious list with conservative South Korea and the Islamic countries.” Add New York State to that inglorious list as last I looked Adultery was still a Class B misdemeanor under §255.17 of the Penal Law. Of course that could get you 90 days in the slammer with the guy who disobeyed those pesky unsigned Automatic Orders.
Happy Bastille Day.

Melody M. v. Robert M., 103 A.D.3rd 932 (3rd Dept., 2013)
Batchelder v. BonHotel, __ A.D.3rd __ ( May 30, 2013.
Education research Center, Quality Counts Report, 2012.
Abbreviated AA, this is the Federal Foreign Office.
Matter of Roman, A Justice of Sullivan Town Court, May 28, 2013.
22 NYCRR 118(e)(14)
Taiwan’s Archaic Adultery Law by Jens Kastner, Asia Sentinel, June 19, 2013.

The Mystery of Judical License Plates

On another front, my favorite Commission this side of the Commission on Superhuman Activities, i.e. Judicial Conduct, finally answered the burning question of whether displaying judicial license plates violates the New York Rules Governing Judicial Conduct. After 9 months of study, in a spiffy color 65 page report, the answer is, “No.” That’s quite a relief to me, but it begs the question, “Don’t these people have anything better to do?” Obviously not, as the report contained a concurring opinion and a wonderful, silly 11 page dissenting statement by Richard D. Emery. Remember him? He’s the guy who dissented and voted to remove from office one of our Albany County Family Court Judges when the Commission felt that a mere censure was in order. He was appointed for a second term in 2012 by then Senate Minority Leader John Sampson. Yes, that John Sampson, as in United States v. Sampson. In any event, Member Emery adjectivized H.T. Webster’s poor Caspar Milquetoast into calling this a “milquetoast Report” that ducks the issue. To his view, such license plates are completely improper, allowing judges, family and friends “to flaunt their judicial status wherever they go.” Say what? He calls the decision a “schizophrenic message inevitably lead[ing] to bizarre scenarios involving special treatment being afforded and accepted by judges.” He lost me on that one, but as I have written the Commission is no stranger to bizarre scenarios in the past, albeit self-imposed. And besides, I thought judges were entitled to special treatment, like respect and honor for serving the public and our system. Silly me. As for the Commission, if this is the nature of their mission on Earth, I believe it might better reflect on whether wearing black robes is improper as it is an aristocratic vestige of killing ermines in 17th Century England so that due deference could be the made to the death of Queen Mary II in 1694. I wonder what PETA thinks of that?