“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.
Thursday, September 05, 2013
Sunday, July 14, 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.
“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.
Friday, May 10, 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?
Tuesday, May 07, 2013
Judicial Stress and a New Chief Judge
“Judge Abdus-Salaam is the finest candidate we have seen in my years in office.” Sen. Neil Breslin, May 6, 2013
Really? Let’s see, that puts her ahead of her predecessor Judge Theodore Jones, retired Judge Carmen Beauchamp Ciparick and former Chief Judge Judith Kaye (both reconfirmed in 2007), our own Victoria Graffeo, current Chief Judge Jonathan Lippmann and every other current judge on the Court of Appeals. High praise indeed.
Juanita Bing Newton is a Court of Claims judge, but we know her as the Dean of the New York State Judicial Institute in White Plains. Said Institute celebrates its 10th anniversary this month and is a self-proclaimed “forum for judicial scholarship.” For 2010-2011, it paid the Dormitory Authority $1 million for the privilege of using a 30,000 square foot state of the art facility with its 160 seat auditorium and “multi-use lecture hall.” Nice. Section 219-a of the Judiciary Law allows the Chief Administrator of the Courts to enter into bonds up to $16.5 million with, well, anyone, for the construction and maintenance of the Judicial Training Institute. The state debt on this baby is a tad over $7.8 million of 2013-2014. In addition there is a yearly expense of over $1.6 million to keep body and soul together. Judge Newton recently sat down with the New York Law Journal for a nice chat. It was somewhat of a surprise to me that the faculty at the Institute includes psychiatrists. Why? To quote Judge Newton, one of the three most important characteristics of a new judge is, “judges must understand the importance of judicial wellness. Judges must be mindful of stresses of the position and their potential impact, and make every effort to take care of themselves…this year we offered a course specifically designed to address judicial stress and educate judges on techniques to reduce stress. We also offered information about specific confidential programs that are available to assist judges.” I’m happy to know that, but are judges uniquely stressed in the operation of their duties? Do we really have to spend taxpayer dollars on psychiatrists to teach them how to reduce stress? After all, aren’t their jokes instantaneously funnier once elected? In 1994 a National Judges Health Stress Questionnaire was developed to find the highest stressors for judges. Counsel being disrespectful to the judge won the award. But it hardly found that this was a particularly high stress job. A 2011 study of Massachusetts judges found that judges were quite satisfied with their jobs, but would be more satisfied if they were paid more. I could have told them that. The studies of the highest stressed professions in the United States never list judges of course, but divorce lawyers do make the top 10 consistently. Just ask Billshrink, where for 2013 we are number two, just South of inner city police officers and just North of bomb squad officers. But who’s counting? A 2013 CareerCast analysis found judges ranking 71 out of 200 jobs from best to worst, having a very low 20% on the stress scale. Where did attorneys rank? 117, thank you very much, just ahead of Ironworkers, but we have a stress ranking of 36% and we earn less than the average judge too. I’m guessing the stress ranking of a divorce attorney is slightly higher.
What a wonderful world.
“A Pilot Study of Job Satisfaction of Massachusetts Judges”, Journal of Psychiatry and Law, Spring 2011. pages 321-337.
http://www.billshrink.com/blog/8642/12-of-the-most-stressful-jobs-in-america/
http://www.careercast.com/content/top-200-jobs-2013-61-80
Saturday, April 20, 2013
Bad Jokes and a Dog Named Ghost
“The penalty for laughing in a courtroom is six months in jail. If it were not for this penalty, the jury would never hear the evidence.” H.L. Menken
“What happened? Satan was busy?” Sam Kinison on finding out his wife had hired Marvin Mitchelson in their divorce.
You’re kidding me right? Why anyone would want to become a New York State judge is beyond me. Consider this. A judge in New York is subject to an endless possibility of public humiliation and punishment for things that folks like me take for granted. Or, as Meat Loaf once asked, “Is nothing sacred anymore?” Apparently not. Just ask Tom Ramich, formerly the Elmira City Court Judge. He resigned this year and had to promise never to be judge again because, among other things, he told a bad joke at an Elmira Patrolmen’s Benevolent Association dinner in 2009. Now, I am not talking about some racist rant or anti-Semitic wisecrack. No, the Pope was not mentioned. He made some lame quip about aliens asking a fellow judge if he is a small claims judge because his apparatus is, well, small. OK, it’s not funny. But does this merit the scrutiny of the Commission on Judicial Conduct? You bet it does. Not only that, but they claim this violates four different directives of the Chief Administrative Judge’s Rules of Judicial Conduct. They are (a) failure to uphold the integrity and independence of the judiciary, (b) not promoting public confidence in said integrity and independence of the judiciary, (c) not being courteous, patient or dignified in those with whom the judge deals in his official capacity, and (d) conducting extra-judicial activities that detract from the dignity of the judicial office. Now, putting aside that Judge Ramich (Ret.) was chastised for extra-judicial and official conduct within the same bad joke, this is a ridiculous, overreaching, arrogant and flat out wrong use of the Commission’s power. If the bar is set so low that this can get you in trouble, a New York judge might not want to venture out into the public let alone speak before the PBA or anyone else. As for me, forget the judicial pay raises. There is no amount of money in a bi-weekly paycheck that would allow me to be scrutinized by these miscreant Neanderthals. Hey, do you know the difference between the New York Commission on Judicial Conduct and the Spanish Inquisition? The Tribunal del Santo Oficio de la Inquisición stopped torturing people in 1834. There. That should keep the black robes off my shoulders for the rest of my career.
As for genuine judicial dopiness, consider the case of Ghost v. Ranger, two dogs who got into a spat in the Town of Oneonta. After two dousings with water the dogs were finally separated, but both were pretty badly hurt. After a trial at which Ghost did not testify, probably for Fifth Amendment reasons, Town Judge Philip Hosley found that Ghost was a dangerous dog as defined by the Agriculture and Markets Law. After the County Court affirmed, the Third Department wisely reversed and vindicated poor Ghost. It seems that the justice opined in his decision that “dogs are by nature stupid...” Say what? Don’t tell that to my Missy. Judge Spain, writing for the court found this statement inexplicable. Is also seems that Ghost’s owner was pregnant at the time of the incident and she miscarried the next day. The court callously commented that taking Ghost for a walk and “being pregnant shows a lack of judgment.” That comment was, as the court held, injudicious. Of course, none of this merits comment from the boys at the Commission on Judicial Conduct, presumably because no jokes were made in rendering the decision. By the way, Ghost’s owner successfully represented herself (and of course Ghost) in the appeal. Way to go, girl!
What else is new? Did you see that our friends at the Office of Court Administration have now mandated wearing bullet proof vests for all court officers while on duty? Now that makes me feel better. They are also seeking “public comment” on a proposed Rule penned by something called the Matrimonial Practice Advisory Committee (MPAC to their close buddies) that would expand the ability to depose experts, even custodial evaluators, extend discovery until four months after “fact disclosure” whatever that is, and add a lot of stuff to the expert disclosure now required in CPLR 3101(d). Has there ever been a “proposed rule” that wasn’t eventually codified? I have no idea, but I cannot resist the chance to get something off my chest, so here is a sample from my not so public comment. Now where did I put my soapbox?
“There is not one reported Appellate case where a litigant successfully raised the issue of the inability to cross-examine or challenge an expert’s opinion based upon current Rules of Evidence as well as the disclosure requirements in matrimonial actions. The question then becomes why is this rule being suggested now? It addresses no burning disadvantage to any litigant today… this Rule should never be adopted because of cost. The vast majority of matrimonial litigants cannot even afford to take the deposition of the other spouse, let alone protracted litigation. The only people who would clamor for this kind of a Rule are the very rich and the attorneys who service them. Virtually every Rule and form promulgated by the Chief Judge, the Uniform Rules and the forms of the Office of Court Administration have vastly expanded the cost of matrimonial litigation for the citizens of the State of New York. Unlike the simplified forms in other states, the booklet of instructions for an uncontested divorce is now 41 pages. There are 32 forms on your website to be used in an uncontested divorce. Most of these forms serve no purpose other than statistical collection, such as your incomprehensible UCS-111 for the assembly of support information. What is the purpose of the DOH 2168 Department of Health form or your newly devised, unduly lengthy Matrimonial Addendum to the RJI (UCS-840M)? There is nothing you can do about the foolishness of the Legislature to require notices that serve no legitimate purpose, such as the protection of household pets including fish in family offense matters or required language about health insurance. However, at some point a method has to be developed for the average matrimonial litigant to get through the process of attaining a judicial dissolution of a marriage without the Byzantine process forced upon them by rules that require further conferences between attorneys, applications to a court, and considerations by Justices that can only lengthen the process and increase the fees. We are bound to charge by the hourly rate. Everything you do that extends the time to bring people to a final resolution increases cost. For once, the Office of Court Administration, the Chief Judge and the others who are considering this Rule should think of the average matrimonial litigant in the State of New York as opposed to the very rich and the attorneys who represent them.”
There, I feel better now. Happy Law Day and of course, Feliz Cinco de Mayo.
Rule 100.1
Rule 100.2(A)
100.3(B)(3)
100.4(A)(2)
You can read the whole sordid thing here in 744 pages of nonsense:
http://www.scjc.state.ny.us/Determinations/R/Ramich.STIP.pdf
Yeah, I had no idea either that this was defined in our statutes. If you care, take a gander at Agriculture and Markets Law section 108(24)(a).
People v. Shanks, __ A.D.3rd __ (3rd Dept., April 3, 2013)
http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf
“What happened? Satan was busy?” Sam Kinison on finding out his wife had hired Marvin Mitchelson in their divorce.
You’re kidding me right? Why anyone would want to become a New York State judge is beyond me. Consider this. A judge in New York is subject to an endless possibility of public humiliation and punishment for things that folks like me take for granted. Or, as Meat Loaf once asked, “Is nothing sacred anymore?” Apparently not. Just ask Tom Ramich, formerly the Elmira City Court Judge. He resigned this year and had to promise never to be judge again because, among other things, he told a bad joke at an Elmira Patrolmen’s Benevolent Association dinner in 2009. Now, I am not talking about some racist rant or anti-Semitic wisecrack. No, the Pope was not mentioned. He made some lame quip about aliens asking a fellow judge if he is a small claims judge because his apparatus is, well, small. OK, it’s not funny. But does this merit the scrutiny of the Commission on Judicial Conduct? You bet it does. Not only that, but they claim this violates four different directives of the Chief Administrative Judge’s Rules of Judicial Conduct. They are (a) failure to uphold the integrity and independence of the judiciary, (b) not promoting public confidence in said integrity and independence of the judiciary, (c) not being courteous, patient or dignified in those with whom the judge deals in his official capacity, and (d) conducting extra-judicial activities that detract from the dignity of the judicial office. Now, putting aside that Judge Ramich (Ret.) was chastised for extra-judicial and official conduct within the same bad joke, this is a ridiculous, overreaching, arrogant and flat out wrong use of the Commission’s power. If the bar is set so low that this can get you in trouble, a New York judge might not want to venture out into the public let alone speak before the PBA or anyone else. As for me, forget the judicial pay raises. There is no amount of money in a bi-weekly paycheck that would allow me to be scrutinized by these miscreant Neanderthals. Hey, do you know the difference between the New York Commission on Judicial Conduct and the Spanish Inquisition? The Tribunal del Santo Oficio de la Inquisición stopped torturing people in 1834. There. That should keep the black robes off my shoulders for the rest of my career.
As for genuine judicial dopiness, consider the case of Ghost v. Ranger, two dogs who got into a spat in the Town of Oneonta. After two dousings with water the dogs were finally separated, but both were pretty badly hurt. After a trial at which Ghost did not testify, probably for Fifth Amendment reasons, Town Judge Philip Hosley found that Ghost was a dangerous dog as defined by the Agriculture and Markets Law. After the County Court affirmed, the Third Department wisely reversed and vindicated poor Ghost. It seems that the justice opined in his decision that “dogs are by nature stupid...” Say what? Don’t tell that to my Missy. Judge Spain, writing for the court found this statement inexplicable. Is also seems that Ghost’s owner was pregnant at the time of the incident and she miscarried the next day. The court callously commented that taking Ghost for a walk and “being pregnant shows a lack of judgment.” That comment was, as the court held, injudicious. Of course, none of this merits comment from the boys at the Commission on Judicial Conduct, presumably because no jokes were made in rendering the decision. By the way, Ghost’s owner successfully represented herself (and of course Ghost) in the appeal. Way to go, girl!
What else is new? Did you see that our friends at the Office of Court Administration have now mandated wearing bullet proof vests for all court officers while on duty? Now that makes me feel better. They are also seeking “public comment” on a proposed Rule penned by something called the Matrimonial Practice Advisory Committee (MPAC to their close buddies) that would expand the ability to depose experts, even custodial evaluators, extend discovery until four months after “fact disclosure” whatever that is, and add a lot of stuff to the expert disclosure now required in CPLR 3101(d). Has there ever been a “proposed rule” that wasn’t eventually codified? I have no idea, but I cannot resist the chance to get something off my chest, so here is a sample from my not so public comment. Now where did I put my soapbox?
“There is not one reported Appellate case where a litigant successfully raised the issue of the inability to cross-examine or challenge an expert’s opinion based upon current Rules of Evidence as well as the disclosure requirements in matrimonial actions. The question then becomes why is this rule being suggested now? It addresses no burning disadvantage to any litigant today… this Rule should never be adopted because of cost. The vast majority of matrimonial litigants cannot even afford to take the deposition of the other spouse, let alone protracted litigation. The only people who would clamor for this kind of a Rule are the very rich and the attorneys who service them. Virtually every Rule and form promulgated by the Chief Judge, the Uniform Rules and the forms of the Office of Court Administration have vastly expanded the cost of matrimonial litigation for the citizens of the State of New York. Unlike the simplified forms in other states, the booklet of instructions for an uncontested divorce is now 41 pages. There are 32 forms on your website to be used in an uncontested divorce. Most of these forms serve no purpose other than statistical collection, such as your incomprehensible UCS-111 for the assembly of support information. What is the purpose of the DOH 2168 Department of Health form or your newly devised, unduly lengthy Matrimonial Addendum to the RJI (UCS-840M)? There is nothing you can do about the foolishness of the Legislature to require notices that serve no legitimate purpose, such as the protection of household pets including fish in family offense matters or required language about health insurance. However, at some point a method has to be developed for the average matrimonial litigant to get through the process of attaining a judicial dissolution of a marriage without the Byzantine process forced upon them by rules that require further conferences between attorneys, applications to a court, and considerations by Justices that can only lengthen the process and increase the fees. We are bound to charge by the hourly rate. Everything you do that extends the time to bring people to a final resolution increases cost. For once, the Office of Court Administration, the Chief Judge and the others who are considering this Rule should think of the average matrimonial litigant in the State of New York as opposed to the very rich and the attorneys who represent them.”
There, I feel better now. Happy Law Day and of course, Feliz Cinco de Mayo.
Rule 100.1
Rule 100.2(A)
100.3(B)(3)
100.4(A)(2)
You can read the whole sordid thing here in 744 pages of nonsense:
http://www.scjc.state.ny.us/Determinations/R/Ramich.STIP.pdf
Yeah, I had no idea either that this was defined in our statutes. If you care, take a gander at Agriculture and Markets Law section 108(24)(a).
People v. Shanks, __ A.D.3rd __ (3rd Dept., April 3, 2013)
http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf
Saturday, April 06, 2013
My Friends at the Office of Court Administration
So, my friends at the Office of Court administration want to change the rules with respect to experts in divorce matters. Read all about it here:
http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf
So, I can never resist if they ask, so here are my two cents:
John W. McConnell, Esq.
Counsel
Office of Court Administration
25 Beaver Street, 11th Floor
New York, New York 10004
RE: Proposed Amendment of 22 NYCRR §202.16(g)
Relating to Enhanced Expert Disclosure in
Contested Matrimonial Actions
Dear Mr. McConnell:
Thank you for soliciting my comments on the proposed changes to 22 NYCRR §202.16(g) as recommended by the Matrimonial Practice Advisory Committee. While I am not sure any comment could dissuade the adoption of such rule when recommended by the MPAC, here are my impressions:
This Rule should never be implemented.
As with all Court Rules, one needs to ask (a) does it address a need of matrimonial litigants, (b) would it be subject to abuse, and (c) is it economical.
While MPAC states that this Rule is necessary to assure fairness in increasingly complex litigation, there is no general failure of litigants to learn the necessary facts and information from matrimonial experts. The current Rule requires the exchange of reports. CPLR 3101(d)(1) allows upon request complete information on any expert who opinion will be proffered in litigation. There is not one reported Appellate case where a litigant raised successfully the issue of the inability to cross-examine or challenge an expert opinion based upon current Rules of Evidence as well as the disclosure requirements in matrimonial actions. The question then becomes why is this rule being suggested now? It addresses no burning disadvantage to any litigant today.
Is it subject to abuse? You bet it is. The presumption of the ability to take the deposition of an expert other than in a custodial matter leaves open the litigants to vast expenses and delays. Also, the Rule makes no sense. Your Rule requires completion “no later than four months after the completion of fact discovery.” What the heck is fact discovery? All discovery is fact based, and there is no delineation within the current Court Rules of fact discovery verses any other kind of discovery. It also contradicts the current Rules concerning the timing of matrimonial litigation. As a result of the Milonas Commission Report as well as the 2006 Matrimonial Commission Report, rules were put into place to move matrimonial litigation. 22 NYCRR 202.16(f)(3) requires the court to schedule a date for trial not later than six months from the date of the conference in a non-complex case. How can this occur when you have a certain period of time for something known as fact discovery, and four months later for the completion of expert information.
If for no other reason, this Rule should never be adopted because of cost. The vast majority of matrimonial litigants cannot even afford to take the deposition of the other spouse, let alone protracted litigation. The only people who would clamor for this kind of a Rule are the very rich and the attorneys who service them. Virtually every Rule and form promulgated by the Chief Judge, the Uniform Rules and the forms of the Office of Court Administration have vastly expanded the cost of matrimonial litigation for the citizens of the State of New York. Unlike the simplified forms in other states, the booklet of instructions for an uncontested divorce is now 41 pages. There are 32 forms on your website to be used in an uncontested divorce. Most of these forms serve no purpose other than statistical collection, such as your incomprehensible UCS-111 for the assembly of support information. What is the purpose of the DOH 2168 Department of Health form or your newly devised, unduly lengthy Matrimonial Addendum to the RJI (UCS-840M)? There is nothing you can do about the foolishness of the Legislature to require notices that serve no legitimate purpose, such as the protection of household pets including fish in family offense matters or required language about health insurance. However, at some point a method has to be developed for the average matrimonial litigant to get through the process of attaining a judicial dissolution of a marriage without the Byzantine process forced upon them by rules that require further conferences between attorneys, applications to a court, considerations by a Justices that can only lengthen the process and increase the fees. We are bound to charge by the hourly rate. Everything you do that extends the time to bring people to a final resolution increases cost. For once, the Office of Court Administration, the Chief Judge and the others who are considering this Rule should think of the average matrimonial litigant in the State of New York as opposed to the very rich and the attorneys who represent them.
Thank you again for the opportunity for comment.
http://www.nycourts.gov/rules/comments/PDF/Rule202-16gPC-Packet.pdf
So, I can never resist if they ask, so here are my two cents:
John W. McConnell, Esq.
Counsel
Office of Court Administration
25 Beaver Street, 11th Floor
New York, New York 10004
RE: Proposed Amendment of 22 NYCRR §202.16(g)
Relating to Enhanced Expert Disclosure in
Contested Matrimonial Actions
Dear Mr. McConnell:
Thank you for soliciting my comments on the proposed changes to 22 NYCRR §202.16(g) as recommended by the Matrimonial Practice Advisory Committee. While I am not sure any comment could dissuade the adoption of such rule when recommended by the MPAC, here are my impressions:
This Rule should never be implemented.
As with all Court Rules, one needs to ask (a) does it address a need of matrimonial litigants, (b) would it be subject to abuse, and (c) is it economical.
While MPAC states that this Rule is necessary to assure fairness in increasingly complex litigation, there is no general failure of litigants to learn the necessary facts and information from matrimonial experts. The current Rule requires the exchange of reports. CPLR 3101(d)(1) allows upon request complete information on any expert who opinion will be proffered in litigation. There is not one reported Appellate case where a litigant raised successfully the issue of the inability to cross-examine or challenge an expert opinion based upon current Rules of Evidence as well as the disclosure requirements in matrimonial actions. The question then becomes why is this rule being suggested now? It addresses no burning disadvantage to any litigant today.
Is it subject to abuse? You bet it is. The presumption of the ability to take the deposition of an expert other than in a custodial matter leaves open the litigants to vast expenses and delays. Also, the Rule makes no sense. Your Rule requires completion “no later than four months after the completion of fact discovery.” What the heck is fact discovery? All discovery is fact based, and there is no delineation within the current Court Rules of fact discovery verses any other kind of discovery. It also contradicts the current Rules concerning the timing of matrimonial litigation. As a result of the Milonas Commission Report as well as the 2006 Matrimonial Commission Report, rules were put into place to move matrimonial litigation. 22 NYCRR 202.16(f)(3) requires the court to schedule a date for trial not later than six months from the date of the conference in a non-complex case. How can this occur when you have a certain period of time for something known as fact discovery, and four months later for the completion of expert information.
If for no other reason, this Rule should never be adopted because of cost. The vast majority of matrimonial litigants cannot even afford to take the deposition of the other spouse, let alone protracted litigation. The only people who would clamor for this kind of a Rule are the very rich and the attorneys who service them. Virtually every Rule and form promulgated by the Chief Judge, the Uniform Rules and the forms of the Office of Court Administration have vastly expanded the cost of matrimonial litigation for the citizens of the State of New York. Unlike the simplified forms in other states, the booklet of instructions for an uncontested divorce is now 41 pages. There are 32 forms on your website to be used in an uncontested divorce. Most of these forms serve no purpose other than statistical collection, such as your incomprehensible UCS-111 for the assembly of support information. What is the purpose of the DOH 2168 Department of Health form or your newly devised, unduly lengthy Matrimonial Addendum to the RJI (UCS-840M)? There is nothing you can do about the foolishness of the Legislature to require notices that serve no legitimate purpose, such as the protection of household pets including fish in family offense matters or required language about health insurance. However, at some point a method has to be developed for the average matrimonial litigant to get through the process of attaining a judicial dissolution of a marriage without the Byzantine process forced upon them by rules that require further conferences between attorneys, applications to a court, considerations by a Justices that can only lengthen the process and increase the fees. We are bound to charge by the hourly rate. Everything you do that extends the time to bring people to a final resolution increases cost. For once, the Office of Court Administration, the Chief Judge and the others who are considering this Rule should think of the average matrimonial litigant in the State of New York as opposed to the very rich and the attorneys who represent them.
Thank you again for the opportunity for comment.
Friday, March 22, 2013
Bigamy and Big of You
“How many husbands have I had? You mean apart from my own?” Gábor Sári, now known as Zsa Zsa Gabor (1917- )
“When a man goes on a date he wonders if he is going to get lucky. A woman already knows.” Frederike Ryder
“I never even believed in divorce until after I got married.” Diane Ford
What? I can’t? It seems that the First Department has suspended some poor solo practitioner for doing nothing more than marrying the love of his life in Jamaica. Well, that and the fact that he was already married to someone else in the United States. There is no claim that he ever did anything wrong in the practice of law and he credibly testified that he never really intended to live with wife number two. So, we are now all on notice that having two wives simultaneously could affect our ability to practice law for a while, at least until the Third Department weighs in on this important issue. Darn. Compare this with poor Thomas Lowe, a divorce practitioner in Eagan, Minnesota who was suspended for fifteen months for merely billing his client for time he spent having sex with her. Is that prohibited in New York? Get back to me on that one.
Did you get a gander at the spiffy new website for the Unified Court System? It is a wonder, and you can now get your court information in Spanish, Russian, Punjabi, Korean, Arabic, Haitian Creole (as opposed to Antillean Creole), Bengali and something called Wolof for all you Senegambia fans to which I say Jërëjëf very much. It is here where you can find the 41 page booklet of instructions for an uncontested divorce. Good luck figuring that one out, as the instructions for child support calculation are a wonder unto their own. It does explain the 32 forms used in an uncontested divorce. If ever there was a cry for divorce reform this is it as the majority of the forms serve no purpose other than statistic collection (UCS-11 for the Department of Health) or some do good legislator wanting everyone to have notice of everything (loss of health insurance anyone?). It will help you find an attorney by referring you to various organizations such as the Dominican Bar Association, Collaborative Divorce Association of the Capital District (where you can find a Divorce Coach or read Dr. Tom’s Career Tips! ), or the Lesbian, Gay, Bisexual, Transgender Bar Association of Greater New York. I do appreciate the forms, but I wish they would once and for all use the most updated Statement of Net Worth form from about 10 years ago rather than that 1998 thing. After all, it is your form. All in all it is a big improvement but I wish they would get our newly elected Justice Richard Mott onto the Judicial Directory before his term expires.
On top of all this, the Colorado Senate has passed a bill decriminalizing adultery. It just might pass some day if Governor Hickenlooper gets on board, and one wonders where the State of New York is on all of this. So, even if we can’t marry two women and practice law at the same time, at least we can go to Aspen and have relations with others without the fear of prosecution. A little light at the end of the tunnel.
Michael P. Friedman
www.fmpclegal.com
Matter of Rosenzweig, __ A.D.3rd __ (1st Dept., February 28, 2013)
Foolishly spelled marihuana in the Penal Law and by the Third Department.
Gordon v. Richards, __ A.D.3rd __ (February 14, 2013).
Actually it is the Family Court Advisory and Rules Committee
You can find it here:
www.nycourts.gov/forms/matrimonial/Affirmation%20Of%20Counsel.wpd
http://www.courts.state.ny.us/
Here’s one: Have a Positive Attitude. Thanks Dr. Tom.
“When a man goes on a date he wonders if he is going to get lucky. A woman already knows.” Frederike Ryder
“I never even believed in divorce until after I got married.” Diane Ford
What? I can’t? It seems that the First Department has suspended some poor solo practitioner for doing nothing more than marrying the love of his life in Jamaica. Well, that and the fact that he was already married to someone else in the United States. There is no claim that he ever did anything wrong in the practice of law and he credibly testified that he never really intended to live with wife number two. So, we are now all on notice that having two wives simultaneously could affect our ability to practice law for a while, at least until the Third Department weighs in on this important issue. Darn. Compare this with poor Thomas Lowe, a divorce practitioner in Eagan, Minnesota who was suspended for fifteen months for merely billing his client for time he spent having sex with her. Is that prohibited in New York? Get back to me on that one.
Did you get a gander at the spiffy new website for the Unified Court System? It is a wonder, and you can now get your court information in Spanish, Russian, Punjabi, Korean, Arabic, Haitian Creole (as opposed to Antillean Creole), Bengali and something called Wolof for all you Senegambia fans to which I say Jërëjëf very much. It is here where you can find the 41 page booklet of instructions for an uncontested divorce. Good luck figuring that one out, as the instructions for child support calculation are a wonder unto their own. It does explain the 32 forms used in an uncontested divorce. If ever there was a cry for divorce reform this is it as the majority of the forms serve no purpose other than statistic collection (UCS-11 for the Department of Health) or some do good legislator wanting everyone to have notice of everything (loss of health insurance anyone?). It will help you find an attorney by referring you to various organizations such as the Dominican Bar Association, Collaborative Divorce Association of the Capital District (where you can find a Divorce Coach or read Dr. Tom’s Career Tips! ), or the Lesbian, Gay, Bisexual, Transgender Bar Association of Greater New York. I do appreciate the forms, but I wish they would once and for all use the most updated Statement of Net Worth form from about 10 years ago rather than that 1998 thing. After all, it is your form. All in all it is a big improvement but I wish they would get our newly elected Justice Richard Mott onto the Judicial Directory before his term expires.
On top of all this, the Colorado Senate has passed a bill decriminalizing adultery. It just might pass some day if Governor Hickenlooper gets on board, and one wonders where the State of New York is on all of this. So, even if we can’t marry two women and practice law at the same time, at least we can go to Aspen and have relations with others without the fear of prosecution. A little light at the end of the tunnel.
Michael P. Friedman
www.fmpclegal.com
Matter of Rosenzweig, __ A.D.3rd __ (1st Dept., February 28, 2013)
Foolishly spelled marihuana in the Penal Law and by the Third Department.
Gordon v. Richards, __ A.D.3rd __ (February 14, 2013).
Actually it is the Family Court Advisory and Rules Committee
You can find it here:
www.nycourts.gov/forms/matrimonial/Affirmation%20Of%20Counsel.wpd
http://www.courts.state.ny.us/
Here’s one: Have a Positive Attitude. Thanks Dr. Tom.
Monday, February 18, 2013
Valentine's Day and the Sages of State Street
NNew York Judge George Donnellan: "Miss West, are you trying to show contempt for this court?"
Mae West: "On the contrary, your honor, I was doin' my best to conceal it." During her indecency trial, 1927
“A man in love in incomplete until he has married. Then he’s finished.” Zsa Zsa Gabor
“Women who seek to be equal with men lack ambition.” Marilyn Monroe
You cannot make this stuff up. My vote for Mother of the Year goes to Melody M., mother of three small kiddies who posted on Facebook that her ten year old son was an “asshole.” When asked why, she replied that she did so because he is an asshole and it was important for her Facebook friends to know this. In a Valentine’s Day present for Ms. M., the Third Department disagreed and Justice Rose poetically wrote, “Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct towards her oldest child.” Now, I am not a big believer in expanding the power of Family Court to all manner of parental conduct, but it is hard to argue with the issuance of an Order of Protection prohibiting her from posting anything about the children on any social network site. This case also upheld the discretion of the court not to hold a Lincoln hearing and the ability to issue an Order of Protection in a violation petition even if not requested.
So here’s the Matrimonial News of the Weird. A prosecutor in North Dakota has filed charges of adultery against a guy who had relations with someone not his wife. When asked why he filed charges, the prosecutor said, “I guess she’s upset with him.” So? In Utah, some legislator introduced a bill to make adulterers pay more in alimony, and another to allow 14 year old children to testify in custody cases. This makes me glad I don’t practice in the Beehive State. Finally, did you see some Egyptian Salufi preacher named Ahmad Mahmoud Abdullah (but his friends call him Abu Islam) said that those celebrating Valentine’s Day were committing a sin for which they would burn in hell. In spite of Abu’s warning, the Sages of Sate Street celebrated Valentine’s Day with a slew of custody cases. In two cases they denied relocation, reaffirming the Third Department’s high standard of not allowing interruption of the child’s relationship with the other parent. In Rose fka Bailey fka Buck v. Buck the mother had remarried and had a new child. She sought to relocate to Kentucky where her new husband lived. The new hubby had superior financial circumstances and the mother had offered the father substantial time on all holidays and in the summer. Not enough, and the Mom was allowed to keep primary custody only if she stayed within 50 miles of Dad’s home. The Appellate Division imposed the 50 mile rule. In another case, the mother sought to relocate to California. The Dad’s visits were supervised twice weekly as there were allegations of sexually abusing a child from another relationship. Not enough, saith the Third Department citing, among other things, “no meaningful economic enhancement.” That must have stuck in the craw of Ms. Rose fka Bailey fka Buck. Interestingly, with only nine judges in the Third Department, the four who decided Rose v. Buck were completely different from the four who decided the California matter. Go figure. Compare this with the Fourth Department which held in Saperston v. Holdaway that a mother could relocate to Brooklyn from Western New York as it was in the child’s best interest and since there was no prior custody order, the Tropea relocation standards did not apply. What is interesting with the Saperston case is that the Fourth Department reversed the trial court’s award of custody to the father and allowed the relocation. It is also curious that Ms. Holdaway’s Facebook page now prominently displays the child. Although there was a two judge dissent, the Court of Appeals declined to step in as the matter was remitted for further proceedings and therefore the Fourth Department had not finally decided the matter. Nice punt. Finally, in a decision that would make Cheech and Chong proud, the Third Department granted custody of a child to a mother who regularly smoked marijuana with her boyfriend. All in all a fine Valentine’s Day in the neighborhood.
Speaking of News of the Weird, the folks at the Unified Court System have asked if we wish to weigh in on the dissemination of forensic custodial reports to clients in custody litigation. I’m glad they asked. I have never been able to decide what information I was supposed to withhold from my client when the report is available only to me. My friend the late Peter Porco used to dictate the reports to a recorder when reviewing them in some judge’s chambers, a practice I copied. There are three proposals, one from something known as FCARC, which I always thought was the People’s Army of Columbia. I had no idea they cared. Here is the problem. Of course a client needs to know what is in a report so he or she can meaningfully decide whether to proceed to trial and to aid the lawyer in the defense or proffering of the report. Unfortunately there is the danger of having parts of the reports displayed by the Ms. M’s of the world in social media or otherwise. To address the problem, the Office of Court Administration came out with a form. How novel of them! It is an Attorney’s Affirmation to promise to allow the client to read it but not copy it. No copies can be made and it must be returned to the court if the attorney no longer represents the parent. The report cannot be quoted in any court papers which is of course problematic when doing proposed findings. There are three proposals with differing views, and I encourage you to weigh in. You can e-mail your suggestions to ForensicReports@nycourts.gov. As for me, I like the idea of having a client read but not copy or make notes on the report.
Finally, did you catch the State of the Judiciary Address of the Chief Judge? If you didn’t, don’t worry. You can catch the whole thing here as a webcast or pdf file: http://www.nycourts.gov/ctapps/soj.htm In fact, you can catch all of the addresses back to 2002 as webcasts at the same site. And why wouldn’t you? In any event, the Chief Judge announced that he was encouraging attorneys to participate in pro bono work by making us report the hours of such service and the monetary contributions to “legal service providers” when we file our biennial registration. I’m not sure how bean counting encourages pro bono work, but I suspect it will lead to some kind of recognition if you do a lot of it, or something. So, let’s keep track of all the time we spend for pro bono services so we can have another bean counter put this all together. As far as I am concerned, Bobbie the Bartender at Dorado’s is a legal (beverage) services provider so I’m keeping count of my contributions to him. Happy St. Patrick’s Day, y'all.
Matter of Melody M. v. Robert M., __ A.D.3rd __ (February 14, 2013)
__ A.D. 3rd ___(February 14, 2013)
Scott VV v. Joy VV, __ A.D.3rd __ (February 14, 2013.
93 A.D.3rd 1271 (Fourth Department, 2012).
87 N.Y.2nd 727 (1996)
__ N.Y.3rd __ (February 19, 2013).
Foolishly spelled marihuana in the Penal Law and by the Third Department.
Gordon v. Richards, __ A.D.3rd __ (February 14, 2013).
Actually it is the Family Court Advisory and Rules Committee
You can find it here:
www.nycourts.gov/forms/matrimonial/Affirmation%20Of%20Counsel.wpd
Mae West: "On the contrary, your honor, I was doin' my best to conceal it." During her indecency trial, 1927
“A man in love in incomplete until he has married. Then he’s finished.” Zsa Zsa Gabor
“Women who seek to be equal with men lack ambition.” Marilyn Monroe
You cannot make this stuff up. My vote for Mother of the Year goes to Melody M., mother of three small kiddies who posted on Facebook that her ten year old son was an “asshole.” When asked why, she replied that she did so because he is an asshole and it was important for her Facebook friends to know this. In a Valentine’s Day present for Ms. M., the Third Department disagreed and Justice Rose poetically wrote, “Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct towards her oldest child.” Now, I am not a big believer in expanding the power of Family Court to all manner of parental conduct, but it is hard to argue with the issuance of an Order of Protection prohibiting her from posting anything about the children on any social network site. This case also upheld the discretion of the court not to hold a Lincoln hearing and the ability to issue an Order of Protection in a violation petition even if not requested.
So here’s the Matrimonial News of the Weird. A prosecutor in North Dakota has filed charges of adultery against a guy who had relations with someone not his wife. When asked why he filed charges, the prosecutor said, “I guess she’s upset with him.” So? In Utah, some legislator introduced a bill to make adulterers pay more in alimony, and another to allow 14 year old children to testify in custody cases. This makes me glad I don’t practice in the Beehive State. Finally, did you see some Egyptian Salufi preacher named Ahmad Mahmoud Abdullah (but his friends call him Abu Islam) said that those celebrating Valentine’s Day were committing a sin for which they would burn in hell. In spite of Abu’s warning, the Sages of Sate Street celebrated Valentine’s Day with a slew of custody cases. In two cases they denied relocation, reaffirming the Third Department’s high standard of not allowing interruption of the child’s relationship with the other parent. In Rose fka Bailey fka Buck v. Buck the mother had remarried and had a new child. She sought to relocate to Kentucky where her new husband lived. The new hubby had superior financial circumstances and the mother had offered the father substantial time on all holidays and in the summer. Not enough, and the Mom was allowed to keep primary custody only if she stayed within 50 miles of Dad’s home. The Appellate Division imposed the 50 mile rule. In another case, the mother sought to relocate to California. The Dad’s visits were supervised twice weekly as there were allegations of sexually abusing a child from another relationship. Not enough, saith the Third Department citing, among other things, “no meaningful economic enhancement.” That must have stuck in the craw of Ms. Rose fka Bailey fka Buck. Interestingly, with only nine judges in the Third Department, the four who decided Rose v. Buck were completely different from the four who decided the California matter. Go figure. Compare this with the Fourth Department which held in Saperston v. Holdaway that a mother could relocate to Brooklyn from Western New York as it was in the child’s best interest and since there was no prior custody order, the Tropea relocation standards did not apply. What is interesting with the Saperston case is that the Fourth Department reversed the trial court’s award of custody to the father and allowed the relocation. It is also curious that Ms. Holdaway’s Facebook page now prominently displays the child. Although there was a two judge dissent, the Court of Appeals declined to step in as the matter was remitted for further proceedings and therefore the Fourth Department had not finally decided the matter. Nice punt. Finally, in a decision that would make Cheech and Chong proud, the Third Department granted custody of a child to a mother who regularly smoked marijuana with her boyfriend. All in all a fine Valentine’s Day in the neighborhood.
Speaking of News of the Weird, the folks at the Unified Court System have asked if we wish to weigh in on the dissemination of forensic custodial reports to clients in custody litigation. I’m glad they asked. I have never been able to decide what information I was supposed to withhold from my client when the report is available only to me. My friend the late Peter Porco used to dictate the reports to a recorder when reviewing them in some judge’s chambers, a practice I copied. There are three proposals, one from something known as FCARC, which I always thought was the People’s Army of Columbia. I had no idea they cared. Here is the problem. Of course a client needs to know what is in a report so he or she can meaningfully decide whether to proceed to trial and to aid the lawyer in the defense or proffering of the report. Unfortunately there is the danger of having parts of the reports displayed by the Ms. M’s of the world in social media or otherwise. To address the problem, the Office of Court Administration came out with a form. How novel of them! It is an Attorney’s Affirmation to promise to allow the client to read it but not copy it. No copies can be made and it must be returned to the court if the attorney no longer represents the parent. The report cannot be quoted in any court papers which is of course problematic when doing proposed findings. There are three proposals with differing views, and I encourage you to weigh in. You can e-mail your suggestions to ForensicReports@nycourts.gov. As for me, I like the idea of having a client read but not copy or make notes on the report.
Finally, did you catch the State of the Judiciary Address of the Chief Judge? If you didn’t, don’t worry. You can catch the whole thing here as a webcast or pdf file: http://www.nycourts.gov/ctapps/soj.htm In fact, you can catch all of the addresses back to 2002 as webcasts at the same site. And why wouldn’t you? In any event, the Chief Judge announced that he was encouraging attorneys to participate in pro bono work by making us report the hours of such service and the monetary contributions to “legal service providers” when we file our biennial registration. I’m not sure how bean counting encourages pro bono work, but I suspect it will lead to some kind of recognition if you do a lot of it, or something. So, let’s keep track of all the time we spend for pro bono services so we can have another bean counter put this all together. As far as I am concerned, Bobbie the Bartender at Dorado’s is a legal (beverage) services provider so I’m keeping count of my contributions to him. Happy St. Patrick’s Day, y'all.
Matter of Melody M. v. Robert M., __ A.D.3rd __ (February 14, 2013)
__ A.D. 3rd ___(February 14, 2013)
Scott VV v. Joy VV, __ A.D.3rd __ (February 14, 2013.
93 A.D.3rd 1271 (Fourth Department, 2012).
87 N.Y.2nd 727 (1996)
__ N.Y.3rd __ (February 19, 2013).
Foolishly spelled marihuana in the Penal Law and by the Third Department.
Gordon v. Richards, __ A.D.3rd __ (February 14, 2013).
Actually it is the Family Court Advisory and Rules Committee
You can find it here:
www.nycourts.gov/forms/matrimonial/Affirmation%20Of%20Counsel.wpd
Saturday, January 19, 2013
A Staggering Work of Heartbreaking Genius
“Every revolution evaporates and leaves behind only the slime of a new bureaucracy.” Franz Kafka
“Bureaucracy, the rule of no one, has become the modern form of despotism.” Mary McCarthy
The Office of Court Administration gave us their annual holiday present in the form of their budget request for 2013-2014. It is a stunning work of obfuscation and gibberish that pales in comparison to prior years’ honesty and detail. For example, the budget request in 2009-2010 was 547 pages in length and detailed every program from the participation in the National Center to State Courts to the Commission on Minorities. These fundings are nowhere to be found in this pithy 187 page report except perhaps in that undescribed $899,000 item for UCS Commissions. Beats me where you find it.
Maybe it is over here where it used to be under Judiciary Wide Maintenance-Undistributed. That used to be an $8.6 million item in the 2009-2010 Budget. Now it is a $40 million request, an increase of 60% over last year! For what? To quote the budget scribes: “This Major Purpose provides funding for the Civil Legal Services Program….This Program provides a means by which the State can supply continuing support to nonprofit community bodies that supply civil legal services for indigent persons.” Say what? Community bodies? What are they? And why is each program no longer described? Because they want to spend the money any way they want, thank you. It is, after all, under the guise of “The availability of affordable legal representation to all who come before the courts is indispensable to assuring that the Judiciary meets its constitutional mission to ensure equal justice for all.” Who could argue with that? Not I, said the fly.
I have to hand it to these guys. They are masters of what George Orwell called doublespeak. The best example is their proclamation of a fiscally responsible, belt tightening austerity budget that lowers the request for funds from the previous year while actually increasing the request. They really have no shame, citing everything from Hurricane Sandy (twice) to a response the “State’s fiscal condition,” the State’s “fiscal crisis” (twice) and the “State’s fiscal outlook.” Here is their bottom line: “The Judiciary’s General Fund Operating Budget request is $1.75 billion. The request is a decrease of $212,013 from the current fiscal year budget, a reduction of .012%.” Nice job boys. You see, the operative term here is “General Fund” budget, as that is just one of the sources of funding for the court system and does not reflect the actual cost to you and me. There exist what are called “Special Revenue Funds” that pony up an additional $216 million for the court system. They include federal funding and attorney licensing funds. Remember those pesky little shakedowns of $375 every two years for the privilege of practicing law? That’s good for $25 million per year, but does not count in the OCA fiscal responsibility arithmetic gobbledygook. So what is the bottom line for the Judicial Budget? A whopping $1.873 Billion, an increase of $1,241,854 from last year, but who’s counting? That sounds like a decrease to OCA, but not to me. After all, I only have a Bachelor’s Degree in mathematics, and this kind of calculating must be reserved for the Master’s level bean counters at OCA.
All of this begs the question, just how bloated is this thing? After all, there is a sense of entitlement of the judiciary, being a separate branch of government and all. It originated in the 1976 Unified Court Budget Act and the changes to the constitution that became effective in 1978 created a centralized system of court management. The excuse of course was fiscal savings as the increased need for judiciary services supposedly strained localities. Sure. By 2002, the New York State Unified Court System published “The Budgetary Impact of Trial Court Restructuring” estimating that consolidation of the court system would save $140.9 million to be offset by a “modest” cost of $9.5 million over 5 years for salaries and whatever for a net of about $131 million in savings (their bold lettering, not mine)! As of 1990-1991, the budget request was $1.36 Billion and by 2005-2006 (the budget being a 406 page request), the request was for $1.537 Billion, a few hundred thousand under this year’s request. Sounds like lots of fiscal savings to me. You too?
Now, all of this could be justified if New York’s population were increasing and straining the services of the judiciary and other governmental providers. From 1990 to 2010 the population of New York increased a tad shy of 8%, but the judicial budget has increased over 28%. Hmmm. OK, but all things increase in cost over time, don’t they? Surely our fiscally conservative OCA boys will stack up well when we see the free spending ways of other states, won’t they?
Down South in New Jersey, they ran their judiciary on $663.5 million in 2012, but they had about 45% of our population. So, they service 45% people for 35% of the cost. Nice. Our other fiscally challenged sister state, California has a judicial budget for 2011-2012 of $3.669 Billion, but they service 92% more people than we do. So they are our gold standard in fiscal silliness. Texas has a 2013 judicial budget of $190 million, so they service 30% more people for 90% less. But, hey, it’s Texas. So let’s talk oranges to oranges, or more particularly Florida, which is within 3% of our population. It spends $440 million on its court system, therefore servicing almost as many citizens as New York for 24% of the cost.
Now, I am not the biggest fan of the good wrought by all this judicial “economy” as I have seen its effects on the decline in services to litigants, the expansion of costs to walk in the doors of the courthouse, and the diminished autonomy of the judiciary resulting in the stifling of justice and reason for the great unwashed seeking a civil resolution of disputes. To justify all this as a necessary cost saving approach to the delivery of legal services is laughable and dishonest. It is now an increasingly unjustified, undocumented and unexplained request by bureaucrats for astounding sums of money that are not needed for those who do not serve the public. That is of course just one person’s opinion, as the court system does not solicit “public comment” for its budgets unlike such burning issues as Voluntary Alternative Dispute Programs in Matrimonial Matters (December 4, 2012), e-filing Systems (November 20, 2012), Real Property Tax Rules (April 9, 2012) or a myriad of other programs that increase the tentacles of this ever growing creature. All of this is within a system that funds Mediation Settlement Day and Annual Kick-Off (September 19, 2012), a 2012 Voter Guide that highlights mostly incumbent judges (October 23, 2012) and a slick multi color publication called “Focus on the Courts.” Yeah, we need those, we really do. After all, what do you expect for $1.8 Billion? Florida?
Originally and incorrectly attributed to Nineteen Eighty-Four as a combination of Newspeak and Doublethink, it was correctly used in his brilliant essay “Politics and the English Language” published in 1946, the year after the Chief Judge was born.
You can read the fictional tome here: http://www.nycourts.gov/reports/trialcourtrestructuring/ctmerger2802.pdf
“Bureaucracy, the rule of no one, has become the modern form of despotism.” Mary McCarthy
The Office of Court Administration gave us their annual holiday present in the form of their budget request for 2013-2014. It is a stunning work of obfuscation and gibberish that pales in comparison to prior years’ honesty and detail. For example, the budget request in 2009-2010 was 547 pages in length and detailed every program from the participation in the National Center to State Courts to the Commission on Minorities. These fundings are nowhere to be found in this pithy 187 page report except perhaps in that undescribed $899,000 item for UCS Commissions. Beats me where you find it.
Maybe it is over here where it used to be under Judiciary Wide Maintenance-Undistributed. That used to be an $8.6 million item in the 2009-2010 Budget. Now it is a $40 million request, an increase of 60% over last year! For what? To quote the budget scribes: “This Major Purpose provides funding for the Civil Legal Services Program….This Program provides a means by which the State can supply continuing support to nonprofit community bodies that supply civil legal services for indigent persons.” Say what? Community bodies? What are they? And why is each program no longer described? Because they want to spend the money any way they want, thank you. It is, after all, under the guise of “The availability of affordable legal representation to all who come before the courts is indispensable to assuring that the Judiciary meets its constitutional mission to ensure equal justice for all.” Who could argue with that? Not I, said the fly.
I have to hand it to these guys. They are masters of what George Orwell called doublespeak. The best example is their proclamation of a fiscally responsible, belt tightening austerity budget that lowers the request for funds from the previous year while actually increasing the request. They really have no shame, citing everything from Hurricane Sandy (twice) to a response the “State’s fiscal condition,” the State’s “fiscal crisis” (twice) and the “State’s fiscal outlook.” Here is their bottom line: “The Judiciary’s General Fund Operating Budget request is $1.75 billion. The request is a decrease of $212,013 from the current fiscal year budget, a reduction of .012%.” Nice job boys. You see, the operative term here is “General Fund” budget, as that is just one of the sources of funding for the court system and does not reflect the actual cost to you and me. There exist what are called “Special Revenue Funds” that pony up an additional $216 million for the court system. They include federal funding and attorney licensing funds. Remember those pesky little shakedowns of $375 every two years for the privilege of practicing law? That’s good for $25 million per year, but does not count in the OCA fiscal responsibility arithmetic gobbledygook. So what is the bottom line for the Judicial Budget? A whopping $1.873 Billion, an increase of $1,241,854 from last year, but who’s counting? That sounds like a decrease to OCA, but not to me. After all, I only have a Bachelor’s Degree in mathematics, and this kind of calculating must be reserved for the Master’s level bean counters at OCA.
All of this begs the question, just how bloated is this thing? After all, there is a sense of entitlement of the judiciary, being a separate branch of government and all. It originated in the 1976 Unified Court Budget Act and the changes to the constitution that became effective in 1978 created a centralized system of court management. The excuse of course was fiscal savings as the increased need for judiciary services supposedly strained localities. Sure. By 2002, the New York State Unified Court System published “The Budgetary Impact of Trial Court Restructuring” estimating that consolidation of the court system would save $140.9 million to be offset by a “modest” cost of $9.5 million over 5 years for salaries and whatever for a net of about $131 million in savings (their bold lettering, not mine)! As of 1990-1991, the budget request was $1.36 Billion and by 2005-2006 (the budget being a 406 page request), the request was for $1.537 Billion, a few hundred thousand under this year’s request. Sounds like lots of fiscal savings to me. You too?
Now, all of this could be justified if New York’s population were increasing and straining the services of the judiciary and other governmental providers. From 1990 to 2010 the population of New York increased a tad shy of 8%, but the judicial budget has increased over 28%. Hmmm. OK, but all things increase in cost over time, don’t they? Surely our fiscally conservative OCA boys will stack up well when we see the free spending ways of other states, won’t they?
Down South in New Jersey, they ran their judiciary on $663.5 million in 2012, but they had about 45% of our population. So, they service 45% people for 35% of the cost. Nice. Our other fiscally challenged sister state, California has a judicial budget for 2011-2012 of $3.669 Billion, but they service 92% more people than we do. So they are our gold standard in fiscal silliness. Texas has a 2013 judicial budget of $190 million, so they service 30% more people for 90% less. But, hey, it’s Texas. So let’s talk oranges to oranges, or more particularly Florida, which is within 3% of our population. It spends $440 million on its court system, therefore servicing almost as many citizens as New York for 24% of the cost.
Now, I am not the biggest fan of the good wrought by all this judicial “economy” as I have seen its effects on the decline in services to litigants, the expansion of costs to walk in the doors of the courthouse, and the diminished autonomy of the judiciary resulting in the stifling of justice and reason for the great unwashed seeking a civil resolution of disputes. To justify all this as a necessary cost saving approach to the delivery of legal services is laughable and dishonest. It is now an increasingly unjustified, undocumented and unexplained request by bureaucrats for astounding sums of money that are not needed for those who do not serve the public. That is of course just one person’s opinion, as the court system does not solicit “public comment” for its budgets unlike such burning issues as Voluntary Alternative Dispute Programs in Matrimonial Matters (December 4, 2012), e-filing Systems (November 20, 2012), Real Property Tax Rules (April 9, 2012) or a myriad of other programs that increase the tentacles of this ever growing creature. All of this is within a system that funds Mediation Settlement Day and Annual Kick-Off (September 19, 2012), a 2012 Voter Guide that highlights mostly incumbent judges (October 23, 2012) and a slick multi color publication called “Focus on the Courts.” Yeah, we need those, we really do. After all, what do you expect for $1.8 Billion? Florida?
Originally and incorrectly attributed to Nineteen Eighty-Four as a combination of Newspeak and Doublethink, it was correctly used in his brilliant essay “Politics and the English Language” published in 1946, the year after the Chief Judge was born.
You can read the fictional tome here: http://www.nycourts.gov/reports/trialcourtrestructuring/ctmerger2802.pdf
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