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).