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).