Politics, Family Court and My Friend Andy C.

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

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

Deux Poids et Deux Mesures?

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

Mali, My New Job and Judicial Discretion

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

The Prestige of Judicial Office and Other Fables

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

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

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

Austerity, Largesse and Cool Whip

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

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

As Bad As It Gets

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

Mother of the Year and Other Tales of Bureaucratic Folly

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

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

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

The Mystery of Judical License Plates

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

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

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

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.

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.

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

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

Omnishambles and our friends at OCA

“I didn’t know what real happiness was until I got married. Then it was too late.” Barry S. Wilson
“I know nothing about sex because I was always married.” Zsa Zsa Gabor
“A girl must marry for love, and keep on marrying until she finds it.” Zsa Zsa Gabor
The Powers That Be in the New York legal system are experiencing omnishambles. That’s my story and I’m sticking to it. Omnishambles is the top new word of the year according to the Brits at Oxford University Press and it is defined as “a situation that has been comprehensively mismanaged, characterized by a string of blunders and miscalculations." Case in point: The Committee on Professional Standards has recently chastised a few of our brethren for some truly innocuous behavior, and in bringing down the hammer of justice they have gone off the rails and punished people for the smallest of offenses. Why? Beats me. Stephen Rockmacher (Rock Maker?) was censured by the Third Department for, among other things, failing to provide an itemized bill to a matrimonial client. While this is in 22 NYCRR 1210.1 (Statement of Client’s Rights), that is not generally a censorable offense. What is next? Admonition for failing to bill every 60 days or censorship for discourteous conduct? That discourteous language resulted in the censorship of Terence Kindlon after an unblemished 38 year career for viewing, handling and photographing a document on opposing counsel’s table. The offending document was an e-mail that had no effect on the presentation of proof by opposing counsel, but what the heck. No harm, but a foul nonetheless. Just after that, the Third Department suspended an attorney for a year because she was disorganized. To this, I must confess, I am guilty. But where is that in the Rules of Professional Conduct? The Third Department hangs its hat on Rule 8.4(d) of the Rules which merely says that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. No one says the offending attorney hurt a client, failed to appear or try a case, served anything late or otherwise did anything that reflected on her competence as a lawyer. As they said in the decision, “The record indicates that the instant misconduct is the result of continuing disorganization in respondent's practice of law, which has resulted in three prior admonitions by petitioner for failing to cooperate.” Yeah? Well, the suspension is stayed if counsel completes some CLE programs in law office management, but nothing is ever going to give counsel her reputation back.
On the lighter side of things, the Court of Appeals has finally published their rules requiring new attorneys (at least after January 1, 2014) to perform 50 hours of pro bono service before being admitted to practice. Here is the good news: Such services are defined as, among other things, assisting in the provision of legal services to “persons of limited means.” Now, to me every human is a person of limited means. I’ve never heard of a person without limits, even the reigning champ, Carlos Slim Helu of Mexico. That brings me to the second part of the good news: You can perform these services in any state or territory of the United States, Washington D.C. or any foreign country. So if Prince Alwaleed Bin Talal Alsaud is in need of some legal work for free in Riyadh, then hop on the next Emirates flight out of JFK. Just don’t perform those services in Antarctica.
This is where things really get weird. The Omnishambles Kings, the Office of Court Administration, published a slick flyer and put up a “Voters Guide” online to help us with our choices for various judgeships in the recent elections. Very nice of them. Unfortunately, the Third Judicial District had five people seeking the Supreme Court nod and only the two incumbents had links to their accomplishments until late in the game when two others were added. Stephen Schick, one of the eventual winners, never had a link to tout his reasons to seek the judgeship. This was not limited to the Third District as the Second District had links to the two sitting judges but not the other three candidates. So, just when and how do the boys at OCA decide who gets to inform the hoi polloi in the official “Voter Guide”? It is easy for incumbents as OCA just publishes a link to the Unified Court System Judicial Directory Guide, thereby giving the Official OCA Imprimatur of Authenticity to incumbents. See, he’s one of us! But what’s a little grandstanding for our friends and fellow members of the judiciary? After all, discourtesy, not following the rules and disorganization are only censorable offenses to practicing lawyers, not the OCA juggernaut.
So, our highest court finally issued a cruel, insensitive and job destroying decision to tax lap dances in New York. It did however contain the following personal note from Judge Smith’s brilliant dissent, which did bring a smile to my face: “I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker.” So, just to edify us in the world of evidence, the Court of Appeals has given us Grucci v. Grucci, a decision that I cannot explain. In a malicious prosecution civil lawsuit, Mr. Grucci sued his former wife for falsely accusing him of violating an Order of Protection. Mr. Grucci’s brother recorded a telephone conversation wherein Ms. Grucci supposedly stated she was never afraid of her hubby. The brother testified that the tape was fair and accurate, and yes, contained Ms. Grucci’s voice. An admission against interest if I ever heard one. Well, ignoring the fairly clear language of Richardson on Evidence, McCormack on Evidence and the New York Evidence Handbook, the Court of Appeals decided that more was required to show that the tapes were unaltered and genuine such as who recorded the conversation, how it was recorded and the chain of custody of the recording. So, now we have at least a new level of attack to keep from judicial earshot those nasty things our clients say to their spouses in recorded conversations. One wonders if this higher standard now applies to e-mails, and I see no reason why it shouldn’t.
Not that we really have to follow the Court of Appeals anyway, do we? Remember Johnson v. Chapin and Mahoney-Buntzman v. Buntzman? Those were the Court of Appeals cases that decided you do not get a credit for paying your premarital debts during the marriage, such as child support, equitable distribution or maintenance to the ex, holding, “As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected.” Well, the Second Department seems to ignore this language in two recent cases, Nidositko and Iarocci, in the latter allowing a $12,000 credit for paying a premarital separate debt. Nary a nod to Chapin or Buntzman in the decisions. So wait, maybe I can still get that recording into evidence if I can just find a Second Department case that ignores the Court of Appeals. Yes, that’s the ticket.
Happy holidays to all and to all a good night!


Matter of Rockmacher, __ A.D.3rd __ (3rd Dept., November 15, 2012), and the section on such a Rule was never cited by the Third Department.
Matter of Kindlon, 98 A.D.3rd 1227 (3rd Dept., 2012)
Matter of Moss, __ A.D.3rd __ (3rd Dept., October 11, 2012)
22 NYCRR §520.16
The Albany County guide can still be found here: http://www.nycourts.gov/vote/2012/county/albany.shtml
Matter of 677 New Loudon Corporation dba Nite Moves v. State of New York Tax Appeals Tribunal et. al., __ N.Y.3rd __ (October 23, 2012).
__ N.Y.3rd __ (November 20, 2012)
12 N.Y.3rd 461 and 12 N.Y.3rd 415 (2009)
92 A.D.3rd 653 (2nd Dept., 2012)
93 A.D.3rd 999 (2nd Dept., 2012)