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End Corruption in the Courts!

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Wednesday, June 30, 2010

Bozo "Judge" Gets Boot

Corny judge popped
The New York Post by DAVID SEIFMAN - June 30, 2010

A city parking judge has lost his job because he combined a snack attack with poor judgment.
Officials disclosed yesterday that Alan Rubin, employed as an administrative-law judge by the Finance Department since May 2004, got the heave-ho in June 2009 because he accepted six to eight bags of free popcorn a year earlier from a food-delivery driver whose tickets he had dismissed. Rubin agreed to pay a $2,500 fine to the Conflicts of Interest Board -- making this the most expensive snack of his life. Sources said Rubin was tripped up when he brought some of his bounty into the office to share with co-workers. One of them gave him up. It wasn't the first time he had crossed the ethics line. In November 2007, Rubin admitted hiring the owner of an audio-video installation company who had come before him for a job hanging a flat-screen TV.

Tuesday, June 29, 2010

IRS Says 4 NY Attorneys Involved In Judge Phillips' Scam

JUDGE JOHN L. PHILLIPS - JUSTICE HAS NOT BEEN SERVED
The Huffington Post - June 29, 2010

Justice has not been served in the case of my dearly departed friend, the Honorable Judge John L. Phillips, known to all as the Kung-Fu Judge. Upon learning of his candidacy in 2001, Brooklyn D.A. Joe Hynes filed an ex-parte (secret action) to seal up all of Judge Phillips' assets. Twelve apartment buildings and two movie Theatres were part of the millionaire judges' empire. The Court then appointed Hynes former Chief of Staff, Harvey Greenberg, as Judge Phillips' "Guardian." The transcript of the proceeding to condemn Judge Phillips is chilling. The reason presented to the court for a guardian was a videotape presented by a prosecutor from the Brooklyn DA's office, Steven Kramer, who conducted a raid on Judge Phillips home along with three confederates. A.D.A. Kramer produced a videotape of the raid at the hearing, and the chief piece of evidence to appoint a guardian was that Judge Phillips had "campaign posters" in his house. These facts are not in dispute. I've read the transcript. Judge Phillips was then remanded to a nursing home...in the BRONX, and the race for District Attorney was over. All of Judge Phillips' properties were sold for pennies-on-the-dollar. Then the judges' home mysteriously burned to the ground, obfuscating any records he had been keeping. The guardians neglected to pay the insurance. Six years later, the once museum-like four story brownstone at 155 Herkimer Street still sits in the heart of Bed-Stuy as a boarded up shell. A monument to the tragic end of the Kung-Fu Judge. Now, the undisputed facts, according to the IRS, are that between the years of 2000 and 2007, four separate guardians sold $10 million dollars of Judge Phillips' property and failed to pay or file any taxes. The IRS now wants $3 million in unpaid taxes from Judge Phillips' estate. The only item left in the estate is the Slave Theatre, which is worth close to 3 million dollars. The four guardians, all attorneys, are:

1. Harvey Greenberg (former chief Assistant District Attorney to D.A. Hynes);
2. Frank Livotti
3. Raymond Jones
4. Emani Taylor

The sale of Phillips' properties was absolutely unlawful and illegal, so why not rescind those sales, restore those properties to the estate of John L. Phillips, and transfer the burden of those unpaid taxes to those four "guardians" who fattened themselves on the fat of Judge Phillips' properties? I would liken those "guardians" to the many suitors of Penelope, Odysseus' estranged wife in the Odyssey, while Poseidon kept the hero away from home. I'm proud to announce that attorney John Kennedy O'Hara has a $10 million lawsuit pending against the nursing home that held Judge Phillips hostage on the orders of DA Hynes. O'Hara also met with federal agents from the IRS last week concerning a criminal probe regarding Phillips' properties, and those four guardians who "forgot" to pay the taxes on the 10 million dollars. The undisputed facts of the case: Judge John L. Phillips, died homeless and broke. He owned 12 apartment buildings and 2 movie theatres. The Brooklyn D.A. seized his assets because Judge Phillips was planning to run against him in 2001. D.A. Hynes got the courts to appoint his former chief of staff as a guardian. All 4 guardians sold all of Judge Phillips' buildings, and kept the money. These facts are not in dispute. I've read the court documents. The New York Times, New York Post, Brooklyn Paper, and The New York Sun ran a series of articles. In addition, Christopher Ketcham wrote an excellent article in the Brooklyn Rail, and AARP Bulletin. I mentioned the Odyssey earlier. It seems that Hynes, playing the part of Poseidon, was successful in his campaign to kill our hero, Judge John L. Phillips, and the suitors have all but eaten his property. Can John Kennedy O'Hara, playing the part of Telemachus, bring some modicum of justice to the estate of Judge Phillips? May we see justice served to the legacy of Judge John L. Phillips, the Kung-Fu Judge of Brooklyn, beloved by his tenants, his friends, and this writer.

******************

The Slave Auctions and the End of the Kung-Fu Judge
The Brooklyn Rail by Christopher Ketcham

On Feb. 6, the Brooklyn Supreme Court announced that it would soon begin auctioning off the storied Slave Theaters I & II in Bedford Stuyvesant, where black activists in New York once gathered to speak and protest. The judge overseeing the case had assured the erstwhile owner of the properties, John Phillips, himself an African-American ex-Brooklyn Civil Court judge, that only the Slave II, the lesser of the properties, would be sold. But it wasn’t so. Phillips, 83, had been through this wringer before. Readers of the Rail may recall my article last summer, “Erasing the Kung-Fu Judge” (July/August 2007), which tracked the elderly retired judge’s seven-year odyssey in a court system that skillfully leeched his multi-million dollar estate. Phillips in the end was left homeless and destitute at the hands of court-appointed guardians. Rude thanks from the Brooklyn judiciary that he served honorably for 13 years, until age 70—a kind of perfectly perverse repudiation of his career as lawyer, jurist, kung-fu instructor, agitator, friend to Paul Robeson, rebel loner in Brooklyn politics, and self-made man presciently buying up property in the heart of Bed-Stuy. Phillips’ fall came at the hands of Brooklyn District Attorney Charles “Joe” Hynes. Aging, eccentric, and always the rebel, Phillips wanted to challenge DA Hynes for his seat during election-year 2001. Hynes responded by asking a friendly judge to declare Phillips “mentally incompetent.” Phillips’ assets were frozen so he could no longer cover mortgage, buy food, or pay utilities. Reams of his personal papers were forcibly taken away by agents of DA Hynes—Phillips the martial artist even scuffled with the men as they rifled his records—and, in 2002, his heat was shut off in the depths of winter. By the end of 2004, fast sickening from his ill treatment, Phillips had been physically removed from his Bed-Stuy home and deposited in a nursing facility in the northern Bronx, far from his neighborhood and friends, stuck in a dismal little room where he was barred from receiving visitors. Fitted with an electronic tracking bracelet, he watched on television in November of 2004 as his Brooklyn home was gutted by a suspicious fire.

Not long after my article appeared in the Rail last summer, events seemed to turn in Phillips’ favor. He had been moved from his Bronx cage to a modest apartment in an assisted living facility in Park Slope, on the ninth floor of the building, with a view of Prospect Park and the Brooklyn Botanical Gardens. The Hon. Michael Pesce, the judge and friend of Hynes who for seven years had overseen the Phillips case so ineptly—or, perhaps, corruptly—recused himself at last from all dealings in the matter, handing oversight of Phillips’ money to a colleague with a less tarnished history. At the same time, a grand jury led by an investigator under Hynes was looking into criminal charges against one of the most prolifically larcenous of the “guardians” of the Phillips estate, a lawyer named Emani P. Taylor, who helped herself to over $1 million from Phillips’ pockets. There the good news ended. Though the state’s top legal disciplinary committee in November disbarred Taylor for her actions in the Phillips case – her misconduct, the committee reported, “immediately threatens the public interest” – Hynes announced in January that no criminal charges would be filed against her.Given the facts then available—the facts that remain today as disturbing as ever—DA Hynes might have taken the high road: He could have admitted his own culpability in the Phillips’ fiasco and investigated Emani Taylor along with Justice Pesce and the three other guardians who colluded in plundering Phillips’ estate (among them Hynes’ long-time confederate and former campaign treasurer Harvey Greenberg, a Park Avenue lawyer). Together, the guardians under Hynes’ and Pesce’s watch had liquidated $10 million in property through what appeared to be rigged sales. They had commandeered Phillips’ pension and social security checks. They refused to pay his utilities even though he could not do so. In violation of both state and federal law, they failed for seven long years to file a single accounting of his estate or pay a single tax return, leaving Phillips $2 million in debt by the end of 2007, according to court documents citing the IRS. It was enough to kill a man as old and busted-down as Judge Phillips. But Phillips hung on—which no one who looted his estate had reason to be thankful for. There is evidence that the Phillips case is not an isolated incident. Multiple sources with inside knowledge of courthouse affairs tell me that as many as 150 cases that Justice Pesce oversaw in recent years have been removed from his purview because of undisclosed problems uncovered by the state Office of Court Administration. One of the reasons for the OCA’s action, according to sources, was the suspicious pattern of appointments under Pesce’s watch. In one case, for example, Pesce handed 17 guardianships in a single day to a 38-year-old attorney named Dagmar Plaza, whose husband works as an assistant district attorney under Joe Hynes. As in the Phillips matter, rules for handling such guardianships appear to have been disregarded: Conflict of interest firewalls were ignored, as were state laws requiring that guardians file full accountings of the estates, while monies went unaccounted for.

In the meantime, it remains a mystery as to why Pesce recused himself from the Phillips case in the first place. That Hynes has failed to set his hounds on the trail is no surprise. What’s odd is that federal prosecutors refuse to take a look at the foulness of the Brooklyn courts when it comes to handling the estates of the elderly. John Kennedy O’Hara, a Brooklyn activist who had also fallen far at the hands of DA Hynes—O’Hara in 1997 was selectively prosecuted under an obscure statute and disbarred as a lawyer—visited his old friend Judge Phillips at the new apartment in Park Slope pretty much every week after Phillips was transferred there in the summer of 2007. It was O’Hara who during that hot summer organized a demonstration of Phillips’ supporters in front of Justice Pesce’s home in Carroll Gardens. The dozen or so protestors held signs and chanted and walked up and down before Pesce’s gated front garden. A veteran of the trench warfare of Brooklyn ethnic politics, O’Hara made sure they misspelled Pesce’s name—“PESH IS A THIEF!” the signs cried—because, he explained, “Brooklyn Italians hate it when you don’t spell their names right.” At last, with Pesce a no-show, the protestors, abandoning the picket, mashed the signs like scarecrows into the iron bars across Pesce’s front yard. A courthouse associate who O’Hara knew from his days as a lawyer told him that it was “unseemly” to mount a protest in front of a sitting judge’s home. “Unseemly? Judge Phillips doesn’t have a home,” O’Hara replied. It was the least he could do for his friend. O’Hara was a different color, half Phillips’ age, born almost a world away in lily-white Bay Ridge, but as a 15-year-old in 1976 he heard about Bed-Stuy’s Kung-Fu Judge and his run for the civil court bench—the rebel battling the Brooklyn Democratic Party machine alone. That summer O’Hara rode his bicycle the six miles from Bay Ridge to Bed- Stuy almost every day. The disco hit “Kung-Fu Fighting” was the anthem: They blasted it from megaphones atop the campaign’s sound trucks. On a February evening not long ago, O’Hara stood in the lobby of the building waiting for Phillips. He was upbeat. A few days earlier, on January 29, O’Hara had filed a complaint to Governor Eliot Spitzer outlining the criminality in the Phillips matter and asking Spitzer to use his special mandate as governor to appoint a special prosecutor free of local influence. It was late, after dinner, and Phillips was just getting back from court. O’Hara had never seen him look so drained. “They’re selling the Slaves,” said Phillips.

The Slave Theaters, in Bed-Stuy, were Phillips’ prize properties. He bought them in 1975, because at the time he needed a venue to screen a movie that he’d written and produced (he spent $185,000 of his own cash on the project—Phillips was not a man easily deterred). The film, Hands Across Two Continents, concerned the still-taboo matter of inter-racial love, though it also boasted a scene in which four black women in space suits chained a white man in a bed and stuck dynamite up his ass. In the flick, Phillips then blew up a whole building to bring home the effect. The movie didn’t do so well, but the Slaves later became a nexus for black firebrands like Al Sharpton. “The Slaves are goin’,” said Judge Phillips again. “I know, judge,” said O’Hara. “We’re gonna fight this thing.” O’Hara joined him in the elevator to the room on the ninth floor, and Phillips invited O’Hara for dinner. The room was clean, quiet, but the couch was old and frayed, the chairs stunk of urine—overused, they had made the rounds of the senior center. The arbiters of Phillips’ estate over the years had refused to shell out money for such largesse as furniture not pissed on; at one point his guardians had even refused to buy Phillips a winter coat to fend off the cold. A week later, on Feb. 15, O’Hara was on the phone with fashion designer and philanthropist Marc Ecko, who had taken an interest in Phillips’ case and now had bought him a new couch and two chairs, delivered that morning. O’Hara then gave his friend a call. “Judge,” O’Hara asked, “how do you like the new furniture?” It was early evening, but Phillips was already half-asleep. The previous week in court had been long—five days straight of wading through the mess of his affairs. “The furniture?” Phillips said. “Oh yes. Very nice, very nice.” O’Hara sensed he didn’t want to talk. “Judge, I’ll come by to see you next week,” he said. There was a pause. “You take care, good buddy,” Phillips said. Then they hung up. The next day, Feb. 16, Phillips died. He collapsed in the elevator, victim of a heart attack. The New York Times carried an obituary, with a photo, on the following Monday. No mention was made of the crooks in the courthouse who poisoned his twilight years.

Christopher Ketcham, a freelance writer for Harper's, GQ, Mother Jones and many other magazines, divides his time between Brooklyn and the redrock country of Utah. He can be reached at cketcham99@mindspring.com.

Judge Fired, Confused by "Innocent Until Proven Guilty" Thing

Judge Fired for Being Confused by That Whole "Innocent Until Proven Guilty" Thing
By The Associated Press - June 28, 2010

ATLANTA - The Georgia Supreme Court has permanently removed a suspended Twiggs County Probate Court Judge from office and barred him from ever holding judicial office again in the state. The court ruled on Monday that Judge Kenneth E. Fowler showed he was unwilling to live up to his legal and ethical responsibilities. The Judicial Qualifications Commission conducted an investigation and found Fowler had violated several judicial canons, such as by telling criminal defendants they had to prove their innocence. The commission also said Fowler allowed criminal defendants the option to buy out of community service, then put the proceeds into a bank account he controlled. Fowler, who was suspended in May, is not a lawyer. His attorney, Jon Helton, did not immediately return a telephone call seeking comment.

Monday, June 28, 2010

The United States' Biggest Question: Corruption

More questions for nominee Elena Kagan
The Washington Post by George F. Will - June 28, 2010

Pursuant to Elena Kagan's expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:

-- Regarding campaign finance "reforms": If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

-- If the problem is corruption, do we not already have abundant laws proscribing that?

-- If the problem is the "appearance" of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things "appear" to unspecified people?

-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

-- Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

-- The Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 14th Amendment says no state may abridge "the privileges or immunities" of U.S. citizens. How should the court determine what are the "retained" rights and the "privileges or immunities"?

-- The 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") is, as former Delaware governor Pete du Pont has said, "to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence." Were the authors of the Bill of Rights silly to include this amendment?

-- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws (other than directly binding treaties)?

-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about "regulatory takings"? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property's value. But government offers no compensation because the property is not "taken." But when much of a property's value is taken away by government action, should owners be compensated?

-- In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution's guarantee of "equal protection of the laws." Were they right?

-- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Florida's legislature. So the recounts were halted. Was the court's majority correct?

-- Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?

-- You have said: "There is no federal constitutional right to same-sex marriage." But that depends on what the meaning of "is" is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

-- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number? georgewill@washpost.com

Whose Supreme Court Is It?

Whose Supreme Court is it?
The Washington Post by E.J. Dionne Jr. - June 28, 2010

This week's hearings over Elena Kagan's nomination to the Supreme Court will mark a sea change in the way liberals argue about the judiciary. Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis. It was Brandeis who warned against the "concentration of economic power" and observed that "so-called private corporations are sometimes able to dominate the state." None of this means that Kagan's nomination is in jeopardy. On the contrary, she will be approved easily, and should be. She will be calm and reassuring during the hearings that start Monday. And unless we live in an age of partisan double standards, she can't be asked to be any more forthcoming about her views than were Chief Justice John Roberts or Justice Samuel Alito. But if Kagan's job is to get confirmed, the task of progressive members of the Senate Judiciary Committee is to reverse the effects of years of conservative propagandizing over the stakes in our debates about the nation's highest court. They will be pushing the narrative away from the hot-button social issues that have been a distraction from the main game: the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries and the ability of the political system to protect itself against corruption. Leading this charge will be two recently elected Democratic senators who are free of the constraints imposed by the controversies of the past, Sheldon Whitehouse of Rhode Island and Al Franken of Minnesota. Whitehouse, formerly his state's attorney general, was one of the most outspoken voices during Justice Sonia Sotomayor's hearings last year. He battled -- largely in vain -- against Republican efforts to turn the hearings into a rally on behalf of a definition of "judicial restraint" that would have judges approve whatever items happen to be on the conservative agenda.

It's amazing how often conservative judges use the "original intention" of our Founders to conclude that Jefferson, Hamilton and Madison were simply card-carrying members of the American Conservative Union. This time, Whitehouse told me, he plans to focus on how conservative courts have limited plaintiffs' rights to challenge corporations before juries by restricting the right to sue and on the evidence that can be brought into play. "Corporations hate juries," Whitehouse said. "It's the one part of government you can't buy." He will link this argument with a challenge to the Supreme Court's appalling Citizens United decision, which gives corporations virtually unlimited rights to spend money to influence elections. Invoking the baseball-umpire metaphor made popular by Roberts, Whitehouse observed that "corporations have a different strike zone in the Supreme Court than regular people." Franken previewed his approach in a powerful speech to the American Constitution Society this month that has made conservatives unhappy. Franken argued that the right has dominated the judicial debate by suggesting that "the Court's rulings don't matter to ordinary people" through a focus on cases involving late-term abortion, flag-burning and pornography. The time has come, Franken said in an interview, for progressives to recognize that Roe v. Wade has distracted attention from what is now at the heart of the judicial controversy: the ability of individuals to assert their rights against corporations.

"If you use a credit card, if you work, if you drink water, you're affected by the court," he said. "Roe is important, but there's this whole other area we weren't talking about." In his speech, Franken cited a long list of conservative rulings that powerfully affected average citizens: decisions against shareholders' rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands -- and, note well, in favor of Exxon when it capped punitive damages for the Valdez oil spill. How will this argument affect Kagan? It puts her in a perfect position to tell Republican senators what they claim to want to hear: that she is resolutely opposed to "legislating from the bench." At this moment, those words would signal her refusal to join a conservative majority on the court determined to enhance the power of private corporations and to undermine the right of our government's elected branches to legislate and regulate in the public interest. ejdionne@washpost.com

Sunday, June 27, 2010

Federal Judicial Overreach Corrected, Sanity Restored

Sanity restored
The Washington Post - EDITORIAL - June 28, 2010

ALEXANDER WILLIAMS JR., a federal judge in Maryland, committed one of the more egregious recent acts of judicial overreach last year when he decided that he -- not local elected officials -- would determine budget priorities in Prince George's County. Last week, his decision was resoundingly reversed by a panel of the U.S. Court of Appeals for the 4th Circuit. Local governments around the country should breathe a sigh of relief, and trial judges take note. Judge Williams, of the U.S. District Court for Maryland, ruled in favor of unions representing Prince George's government workers who complained that the county had acted unconstitutionally by breaking their contract and imposing furloughs -- in effect, pay cuts -- in 2008. By imposing furloughs, the county avoided layoffs. And it still managed to give its employees net salary increases thanks to across-the-board merit raises and cost-of-living adjustments. That wasn't enough to satisfy the lawmaker lurking inside Judge Williams. He acknowledged that state and local governments are not tightly bound by contracts since they are also legally obligated to preserve key government functions and services during economic slumps. But he insisted that the county had better alternatives to furloughs -- for instance, slashing funds for the community college. Of course, those are exactly the sort of judgments that lawmakers, not judges, are elected to make. Writing for a unanimous three-judge panel, Judge Robert B. King said that local governments are within their rights to furlough employees in fiscal emergencies. If unions representing government workers object to furloughs, the judge wrote, they may try to get the county to agree to rule them out as part of contract negotiations (though a county would be foolish to hamstring itself in that fashion). Barring that, the court decided, local governments have a good deal of leeway to make whatever budget cuts they wish. Judge Williams's ruling last summer sent a chill through state and local governments nationwide, as elected officials wondered whether the courts would usurp one of their essential roles: setting budget priorities. With its ruling, the appeals court has restored some sanity.

Saturday, June 26, 2010

Expecting Justice and Hoping for Empathy

Expecting Justice and Hoping for Empathy
Legal Affairs; Miller-McCune by James L. Gibson - June 20, 2010

Gauging views of the American people on Supreme Court justices suggests that while empathy is in the eye of the beholder, it’s a value most people favor on the bench.



What kind of justices do the American people want on the U.S. Supreme Court? As the country awaits the Senate’s decision on whether Elena Kagan should replace Justice John Paul Stevens on the nation’s highest court, discussions about the desirable attributes of judges have been reignited. This debate is particularly important at this point in history because the justices of the U.S. Supreme Court have become an unusually homogeneous bunch. Hailing from Harvard or Yale, having served on the lower federal judiciary, but also having precious little experience in any politics but the politics of the judiciary, and even sharing in their religious beliefs, the current U.S. Supreme Court certainly does not mirror the characteristics of their constituents, the American people. In connection with the Sonia Sotomayor nomination, President Obama started a public conversation on the desirable attributes of Supreme Court justices, focusing on the expectations the president and others hold for judges. Quickly sensing the political dangers of opening a debate on this issue, the president and his nominee retreated, to the point that the nominee failed to stand by her assertion that having a “wise Latina” on the bench would be good for the Supreme Court. Indeed, so radical was Sotomayor’s shift from the wise Latina theory of judging to a mechanical view of judging that many scholars of the courts — left and right — have accused her of being disingenuous in her testimony before the Senate, or worse.
Despite the importance of the issue, debates about what the American people want in their Supreme Court justices are practically never guided by systematic evidence. Consequently, with the support of the Murray Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis, I conducted a survey of a random sample of the American people in the summer of 2009, before the confirmation of Sotomayor to a seat on the Supreme Court. The survey specifically sought to determine the characteristics Americans want in those who are elevated to the high bench. In addition, I attempted to ascertain whether views of good judging — like everything else in the polarized politics of contemporary American politics — are connected to partisanship and ideology.

In 2007, even before he was president, Barack Obama began the debate by declaring: “We need somebody who’s got the heart, the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old — and that’s the criterion by which I’ll be selecting my judges.” Thus, his first nomination stimulated widespread debate about what constitutes a good Supreme Court justice. At the center of the debate over the characteristics of judges was the meaning of “empathy.” President Obama asserted that he sought judges who could empathize with ordinary people; much debate about this trait ensued, with conservatives charging that empathy was nothing more than a synonym for their much-hated “liberal activism.” Despite the politics, the discussion of empathy revealed important and meaningful differences in how people viewed the process of judging on the U.S. Supreme Court. In my 2009 survey, the respondents were asked a set of questions about the desirable attributes of Supreme Court justices. The question stem read: “We have spoken about the U.S. Supreme Court during this interview. Thinking about the characteristics of a good Supreme Court judge, how important would you say it is for a good Supreme Court judge to . . .” The attributes about which we asked are:
• Strictly follow the law no matter what people in the country may want.
• Be especially concerned about protecting people without power from people and groups with power.
• Be involved in politics, since ultimately they should represent the majority.
• Respect existing Supreme Court decisions by changing the law as little as possible.
• Listen to the people before making decisions that affect the country as a whole.
• Try to maintain the appearance of being fair and impartial no matter what the cost.
• Ensure that the law is fair, not just legal.
• Uphold the values of those who wrote the U.S. constitution long ago.
• Base their decisions on whether they are a Republican or a Democrat.
• Decide cases the way the majority of the people in the country prefer, even if that goes against existing laws.
• Base their decisions on whether they are a liberal or a conservative.
• Be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.

The most commonly expected characteristic for Supreme Court justices is that they “uphold the values of those who wrote the U.S. Constitution long ago,” endorsed by approximately three-fourths of the respondents. The least important attribute is that justices “base their decisions on whether they are a Republican or a Democrat,” rated as very important by only 10 percent of the respondents. Despite the consensus at the extreme, the rest of the characteristics draw divided responses from the American people. Perhaps the most significant conclusion from this figure, however, is that the American people are divided in regard to what they want from judges on the Supreme Court. Consider the characteristic of being “involved in politics, since ultimately they should represent the majority.” About a fourth of the respondents rate this as very important, but a third rate it is as not very important at all. Clearly, different people have fairly different conceptions of judging floating around in their minds, with a sizeable minority embracing a fairly politicized view of judging. One of the expectations refers to being “able to empathize with ordinary people – that is, to be able to understand how the law hurts or helps the people.” A substantial proportion of the American people – about two-thirds – agree with President Obama on this attribute in assigning it the highest degree of importance. Only 8 percent rate empathy as entirely unimportant. Most Americans want Supreme Court justices who are able to empathize with ordinary people. But what does “empathy” actually mean when it comes to judging? One way to answer this question with the data at hand is to determine what additional characteristics, if any, are associated with assigning a high value to empathy.
In terms of the other expectations about which we asked, strong correlations are observed between the empathy expectation and the items about protecting people without power, listening to people when making decisions and making fair, not just legal, decisions. Clearly, these expectations reflect a contextualized view of judging, one in which strict legality is expected to take a back seat to fairness.

As the same time, however, “empathy” seems not to be a code word for any sort of reckless disregard of the law. Those who emphasize empathy as a judicial characteristic are no more and no less likely to expect that judges should uphold the framers’ values, respect existing decisions, bring partisanship to judging or strictly follow the law. From the point of view of the American people, empathy most likely means to exercise the discretion available within law – discretion that is often quite broad – in favor of fairness for ordinary people. I would not be surprised if President Obama held a similar view of empathy. Interestingly, those more knowledgeable about the Supreme Court (a six-item index) are more likely to emphasize empathy, so this view of judging is not confined to the know-nothing segment of the American people. Those more knowledgeable about the Supreme Court are also less likely to emphasize legalistic decision making (strictly following existing law). The traditional view that judges can or should merely “implement the law” is unpersuasive to those understanding the most about the Court. Thus, Obama’s view of judging resonates with a considerable proportion — but not all — of the American people, and that portion is comprised more of informed rather than less informed citizens. But is empathy nothing more than a “Democratic” or “liberal” view of judging? Seemingly not. These data do show that self-identified Democrats are more likely than Republicans to assign a high value to empathy. However, the percentage of Democrats rating empathy as “very important” is 77. This contrasts to 63 percent among the Republicans — a healthy majority of the GOP. (Among those who think of themselves as independents, the figure is 72 percent.) Partisan differences exist, but only within the context of widespread agreement that Supreme Court justices should be able to empathize with ordinary people.
A similar finding emerges from analyzing the views of liberals and conservatives. Liberals are indeed more likely than conservatives to value judicial empathy. But 64 percent of those describing themselves as extremely conservative assign the highest value to empathy, and this figure climbs to 69 percent of those who call themselves somewhat conservative. The percentages for liberals are higher, in the 70s. But these data show that the dominant view among liberals and conservatives alike is to value empathy as a characteristic of Supreme Court justices. I do not deny (and have no ability to analyze) the possibility that liberal/Democrats and conservatives/Republicans differ on who “the people” are that must be empathized with. I would not be surprised to learn that both groups want justices who empathize with people sharing their values and ideologies. Indeed, I find at least a weak tendency for those who rate empathy highly to also expect that judges should base their decisions on their ideologies. Most likely, empathy means that judges should make fair, not just legal, decisions, but that liberal fairness and conservative fairness are often quite different beasts.

Finally, the survey also asked the respondents their views about “judicial activism” with a question reading: “In general, would you strongly prefer that activists be on the Supreme Court, prefer that activists be on the Supreme Court, prefer that strict constructionists be on the Supreme Court, strongly prefer that strict constructionists be on the Supreme Court?”
As I have reported here before support for judicial activism – understood as meaning “that judges rely on their own judgments of what is fair in the case rather than allowing the Constitution, the legislature or prior court decisions to dictate what the outcome of the case will be” — is considerably more widespread than most imagine. In the 2009 survey, 40 percent of the respondents preferred or strongly preferred that judicial activists be on the bench, compared to 30 percent preferring strict constructionists (and 30 percent not knowing their own preferences). Among those holding a view on activism, 57 percent prefer activist judges over constructionist judges. For most Americans, “activist” when applied to judges is not an epithet. Analysis of the data reveals a strong connection between preferring empathetic judges and attitudes toward judicial activism. As shown in the graph below (which reports the views of those holding a preference regarding activism versus constructionism), those expecting empathetic judges are far more likely to endorse judicial activism. The figure indicates that 65 percent of those rating judicial empathy as very important also favor judicial activism. As the importance of empathy declines to “not very important at all,” the percentage preferring judicial activists plummets to 17 percent. Critics who equate judicial empathy with judicial activism are not far off the mark, at least according to these data. In making nominations to the U.S. Supreme Court, President Obama must balance a variety of expectations, many of which may conflict. In addition, given the bias toward minoritarianism in the rules of the Senate, Obama may well have to shoot for 60 votes, not a simple majority, in favor of his nominee. These various considerations make his decisions on nominations complicated and uncertain.
But if President Obama cares about what the American people want on the nation’s highest bench, he should return to the criterion of empathy. The strict, formal and knee-jerk application of law to the kinds of issues that reach the U.S. Supreme Court is unlikely to generate just outcomes, at least in the views of the American people. At present, many good legal technicians sit on Supreme Court. But what seem to be missing from the institution are judges with common sense. I realize that common sense is often not very common and on occasion doesn’t have much sense, but in the instance of the Supreme Court, common sense means using the law, where discretion is available, to protect the interests of ordinary people. My survey reveals wide support for this view of judging. That support extends across the partisan and ideological continua, and indeed, fear of judicial elitism (and of all forms of elitism in American politics) may actually have increased since the time of my survey. The president will surely take some heat from the far right if he nominates an empathetic judge. But the evidence of this survey is that he can rely on the American people to support judges who would add a strong dose of empathy to their judging.

Friday, June 25, 2010

FBI Names Fedarcyk to Lead Battle with NY's Culture of Corruption

Press Release - For Immediate Release - June 24, 2010
Washington D.C. - FBI National Press Office - (202) 324-3691

Janice K. Fedarcyk Named Assistant Director in Charge of the New York Division


Director Robert S. Mueller, III has named Janice Fedarcyk as assistant director in charge of the FBI’s New York Division. Ms. Fedarcyk is currently serving as special agent in charge (SAC) of the Philadelphia Division. “Jan Fedarcyk brings both a strong national security and criminal investigative background from her current assignment as head of the Philadelphia Division and from her work at FBI Headquarters, where she managed terrorist financing investigations, served at the National Counterterrorism Center, and oversaw investigations of online exploitation of children,” said Director Mueller. “She is well prepared to lead our largest office.” Ms. Fedarcyk entered on duty as a special agent of the FBI in 1987. Upon completion of training at the FBI Academy in Quantico, Virginia, she was assigned to the Los Angeles Division, where she investigated organized crime, drugs, money laundering, and gang matters. In November 1996, Ms. Fedarcyk was promoted to FBI Headquarters (FBIHQ), where she coordinated FBI response to domestic and international crises and special events. In 1998, Ms. Fedarcyk was selected as the first FBI liaison assigned to the National Center for Missing and Exploited Children. She transferred to the Baltimore Division in 1999, where she supervised an Innocent Images National Initiative squad investigating the online exploitation of children. In 2001, Ms. Fedarcyk returned to FBIHQ as an assistant inspector team leader in the Inspection Division. In 2003, she was selected as the assistant section chief of the Terrorist Financing Operations Section within the Counterterrorism Division. Her subsequent promotion to assistant special agent in charge (ASAC) in the FBI's Critical Incident Response Group, National Center for the Analysis of Violent Crime, included oversight of FBI components that furnished behavioral analysis and consultation on a variety of investigative matters. Ms. Fedarcyk was promoted to serve as the FBI's representative to the National Counterterrorism Center, Directorate of Strategic Operational Planning in March 2005. She was instrumental in leading the development of a classified national strategic operational plan in the war on terrorism. In September 2006, she was a group recipient of a Meritorious Unit Citation presented by the Director of the National Counterterrorism Center for contributions to the Interagency Counterterrorism Strategic Planning Community. In January 2006, Ms. Fedarcyk was promoted to the position of inspector at FBIHQ. Shortly after, in February 2007, she was named SAC of the Counterterrorism Division of the Los Angeles Division. In this division, she oversaw executive management, supervisory and investigative personnel, and the associated investigative programs to which they were assigned.

Ethics Lawyer Who Dated Firm Legal Assistant, Dies; Worked For Kaye

Steven Krane, Ex-Leader of New York State Bar, Dies at 53
The New York Times by BRUCE WEBER - June 25, 2010

Steven C. Krane, who was the youngest president of the New York State Bar Association and an expert on legal ethics, died on Tuesday in Manhattan. He was 53 and had homes in Manhattan and Pound Ridge, N.Y. The cause was a heart attack, said David A. Lewis, a lawyer at the firm Proskauer Rose, where Mr. Krane was a partner and general counsel. Mr. Krane, a past chairman of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, concentrated on representing lawyers and law firms in matters of professional liability and providing counsel on issues of client-lawyer privilege, a lawyer’s duties to clients, conflicts of interest and other areas where propriety can be ambiguous. He taught legal ethics at Columbia Law School, and as the chairman of the state bar association’s Committee on Standards of Attorney Conduct, he was instrumental in updating the rules regulating lawyers’ conduct. The reformulated rules, which brought the New York bar into closer alignment with that of other states, went into effect in 2009. They included changes made necessary by new technology. The previous code, for example, did not address an occasion in which a lawyer inadvertently sends an e-mail to opposing counsel that discloses proprietary information. Is the lawyer who receives the e-mail required to disclose that he has received it? Is he then required to return it or destroy it? Is he permitted to use the information in it? The new rules make clear that the lawyer who receives the e-mail must notify the sender but that he is not responsible for any further remedial action. Steven Charles Krane was born in Far Rockaway, Queens, on Jan. 20, 1957, and he grew up in Hewlett, on Long Island. His father, Harry, worked for the New York City school system. He graduated from Stony Brook University, and New York University School of Law. He joined Proskauer in 1981 and was made a partner in 1989. From 1984-85, he was clerk to former Chief Judge Judith S. Kaye, then an associate judge on the state court of appeals. Mr. Krane was elected president of the state bar association in 2001, when he was 44. In the post, he coordinated the efforts of lawyers to provide legal help to the families of those killed or injured in the terrorist attacks of Sept. 11, 2001, and he established a program providing grants to help public-interest lawyers repay their law school loans. Mr. Krane is survived by his father, who lives in Boynton Beach, Fla.; a sister, Margery Kashman, of Woodmere, N.Y.; his wife, Faith, whom he met when she was a legal assistant at Proskauer and married in 1983; a daughter, Elizabeth; and a son, Cameron.

Nation's High Court Gives Another Victory To Public Corruption

Supreme Court ruling could overturn verdict in Joe Bruno corruption case
The New York Daily News by Glenn Blain and Helen Kennedy - June 25, 2010

The conviction of former state Senate Majority Leader Joe Bruno appears to be in jeopardy.

A Supreme Court ruling in favor of an imprisoned Enron honcho Thursday could exonerate a bunch of pols convicted of corruption - including ex-state Senate Majority Leader Joe Bruno. The court ruled that a 20-year-old law against depriving the public or shareholders of "honest services" - a statute used to go after crooked politicians and corporate cheats - is too broad and vague. The court said the law can apply only when there's direct evidence of bribery or kickbacks. The dramatic narrowing of the fraud law could limit the corruption trial of former Illinois Gov. Rod Blagojevich, free convicted former Alabama Gov. Don Siegelman, as well as a host of shady small-time pols from Boston to San Diego; and overturn the verdict against Bruno. "The court has effectively gutted one of the most valuable federal laws to prosecute white collar criminals and elected officials who betray the public trust," said state Sen. Eric Schneiderman (D-Manhattan), who is running for attorney general. "This clearly puts the conviction of Joe Bruno in jeopardy." The 81-year-old Republican was convicted in December under the statute for using his clout to amass lucrative consulting fees from clients with business before the state. Bruno was accused of taking $200,000 in bogus consulting payments from companies controlled by businessman Jared Abbruzzese, who also gave the lawmaker $80,000 for a worthless racehorse. Bruno's trial revealed that he ran his side businesses from his Senate office and used taxpayer-paid staff to handle paperwork. Prosecutors never charged that he received any direct bribes or kickbacks. Instead, prosecutors focused on Bruno's conflicts of interest and failure to disclose them - violations not covered under the top court's ruling.

Thursday, June 24, 2010

NY Times: Cuomo Accepts Millions From Interests He Assails

Cuomo Accepts Millions From Interests He Assails
The New York Times by SERGE F. KOVALESKI and GRIFFIN PALMER - June 24, 2010

Attorney General Andrew M. Cuomo, declaring his candidacy for governor of New York, could not have been clearer. “The influence of lobbyists and their special interests must be drastically reduced with new contribution limits,” Mr. Cuomo said last month. “We will be taking on very powerful special interests which have much to lose. We must change systems and cultures long in the making.” But as he delivered his announcement, Mr. Cuomo was sitting on millions in campaign cash from the very special interests whose influence he said he wanted to limit. An analysis by The New York Times shows that of the estimated $7.1 million that the Cuomo campaign has received from political action committees, associations, limited liability corporations and other entities, more than half has come from the biggest players in Albany: organized labor, the real estate and related industries like construction, the health care sector and lobbying firms. In the spirit of reform, Mr. Cuomo pledged in 2007 not to accept donations over $10,000 from most categories of contributors during an election cycle. But he did not stick to that vow and has at times received amounts five times as great. The donations underscore the awkwardness of Mr. Cuomo’s effort to run against Albany and its insiders at the same time he is benefiting from their largess and, in some cases, his long relationships with them. He drew a similar proportion of his campaign money from special interests in his failed 2002 campaign for governor and his 2006 bid for attorney general. Mr. Cuomo, a Democrat, declined repeated requests to be interviewed for this article. But an adviser, Phil Singer, said the attorney general had consistently demonstrated his independence from special interests and others who contribute to his campaign. As of its last campaign filing, the Cuomo campaign had about $16 million. “Any donor who could possibly think they are buying anything other than good government is delusional and blind to all facts,” Mr. Singer wrote in an e-mail message. He cited a number of cases in which the attorney general’s office had taken action against those who had made political donations to Mr. Cuomo. The analysis by The Times shows that in the current election cycle, lobbying firms and companies that have registered to lobby on their own behalf have given Mr. Cuomo about $555,000 in donations. Organized labor, long regarded by Democrats and Republicans as perhaps the most powerful force in Albany lawmaking, has given him more than $1.4 million. Real estate and construction interests have donated more than $1.3 million, and the health care industry has contributed about $570,000.

As attorney general, Mr. Cuomo has undertaken several major initiatives that have coincided with interests of those donors. In 2007, Mr. Cuomo’s office opened an investigation into whether health insurers were systematically overcharging patients who used doctors and hospitals outside the insurers’ networks. The inquiry was related to an earlier federal lawsuit whose plaintiffs included the Medical Society of the State of New York, which represents physicians, medical residents and medical students; New York State United Teachers, a union; and the Civil Service Employees Association union, all of which have given generously to him through their political action committees. In 2009, he announced a settlement to shut down the payment system used by the industry and establish an independent database to replace it. Also in 2007, during New York City’s real estate boom, Mr. Cuomo, after receiving complaints from real estate officials, pushed for passage of a state bill to increase financing for his office to speed up the approval process for co-op and condominium conversions and ease a backlog. The measure was written into the state budget the next year with the blessing of the industry and other stakeholders and also allowed the office to better handle complaints against developers over construction flaws. But Mr. Singer pointed out that the attorney general had also aggressively pursued some of his contributors. His office reached an agreement in 2009 with WellPoint, the nation’s largest health insurer, to pay $10 million toward an overhaul of the health care reimbursement system. This year, Mr. Singer said, Mr. Cuomo’s office sued Bank of America and two of its former top officers, saying they had duped shareholders and the federal government to complete a merger with Merrill Lynch. This month, the office sued a developer, Yair Levy, saying he stole $7.4 million from a reserve fund of a troubled downtown luxury building. Mr. Singer also said the campaign required prospective donors to show that they had no matters pending before the attorney general’s office and had not had any in the previous 90 days.

The Times review did not examine donations from individuals, like health care executives or union leaders. But an analysis conducted by the New York Public Interest Research Group recently found that 20 percent of the money Mr. Cuomo’s current campaign committee received from individuals came from people working in real estate or as lobbyists. Representatives of several organizations that gave to Mr. Cuomo said it was natural that their agendas sometimes dovetailed with his. They said they believed that Mr. Cuomo was right on many of the most important issues affecting their clients or constituents. Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union, pointed to a settlement that the attorney general’s office reached in July 2009 with the owners and former owners of two Brooklyn supermarkets. They were forced to pay $1.1 million for underpaying workers and violating other state labor laws.

“A lot of what Andrew has done as attorney general,” said Mr. Appelbaum, whose group gave Mr. Cuomo $27,000 through a political action committee, “has involved going after employers who have not paid legal wages or overtime or have mistreated employees in other ways.” George W. Reilly, business manager of Plumbers Local Union No. 1, which gave $29,500 through its political action committee, said Mr. Cuomo’s tenure as assistant secretary and then secretary at the Department of Housing and Urban Development had made him more knowledgeable about issues important to the union’s members. The political action committees that are among Mr. Cuomo’s largest labor contributors include the Sergeants Benevolent Association of the New York Police Department, which gave $54,000; the United Food and Commercial Workers International Union, which contributed more than $53,000; and Local 32BJ of the Service Employees International Union, which gave $45,500. Lobbyists, meanwhile, continue to contribute generously to Mr. Cuomo despite three campaigns in which he has criticized their influence. During his failed bid for governor in 2002, Mr. Cuomo called New York “the Wild West of lobbying” and proposed a ban on contributions by lobbyists to campaigns.

James D. Featherstonhaugh, a well-known lobbyist in Albany, said he had written Mr. Cuomo “a personal check for $10,000 a month or so ago.” Mr. Featherstonhaugh’s law firm has contributed $19,873 to the campaign. Political contributions by lobbyists can be the currency of access to a governor and an administration, but several lobbyists who were willing to discuss their giving to Mr. Cuomo said they had donated because of relationships spanning two decades or so. Mr. Featherstonhaugh, whose firm has represented the New York State Academy of Trial Lawyers, Goldman Sachs and the Metropolitan Life Insurance Company, does not take umbrage at Mr. Cuomo’s statements about lobbyists. “I hope what he is saying is not that we should get rid of lobbyists,” Mr. Featherstonhaugh said, “but that we should reform a system that people find offensive because in some instances lobbyists exert an unfair or disproportionate influence on how government works.” Kenneth L. Shapiro, managing partner of the Albany office of the law firm Wilson Elser Moskowitz Edelman & Dicker L.L.P., is also not put off by Mr. Cuomo’s remarks. “No one feels good about it, but we are big boys and big girls,” said Mr. Shapiro, who has known Mr. Cuomo since the early 1980s. “You take your shots.” “We contribute to him,” he added, “because in our business you have to believe in somebody, and at a perilous time like this in the state, we badly need someone who can lead us out of it.” A political action committee of Mr. Shapiro’s firm and the partnership itself — whose clients have included the Atlantic Yards Development Company, Consolidated Edison, the New York State Hospitality and Tourism Association and numerous hospitals — has contributed about $59,200 to the Cuomo campaign.

Mr. Cuomo has drawn a considerable amount of political money from the health care industry, including doctors’ groups. “He has a good track record making sure that insurers treat doctors and patients fairly,” said Moe Auster, an in-house lobbyist for the Medical Society of the State of New York, a nonprofit advocacy group with about 30,000 members. Its political arm has given $50,793 to Mr. Cuomo’s campaign, making it his second-largest health care donor. Medical groups also applauded a 2008 agreement that the attorney general reached with Excellus BlueCross BlueShield and CareCore National to streamline pre-approvals for tests ordered by doctors. Those specializing in cancer, for instance, no longer had to obtain approval for CAT scans, a test frequently used for cancer patients. Other big health care donors to the Cuomo campaign include Physicians’ Reciprocal Insurers, which has given $45,000, and the political action committee of the New York State Dental Association, which contributed $24,532. Little attention has been paid to Mr. Cuomo’s abandonment of his 2007 pledge to accept no donations of more than $10,000 per election cycle — about 18 percent of what state law allows — from individuals, unions, political action committees and trade associations.

The Times analysis shows that Mr. Cuomo’s campaign has accepted donations far beyond that limit many times. He took in $55,900 from the political arm of Local 6 of the Hotel Employees and Restaurant Employees International Union and $55,900 from the political action committee of the New York State Association of Realtors. Mr. Singer wrote in an e-mail message that in 2007, the governor at the time, Eliot Spitzer, had voluntarily limited his own campaign contributions, and that Mr. Cuomo had decided to do so in solidarity with him while a campaign finance bill was being promoted for passage. “After the bill failed and the governor resumed following the existing law, the Cuomo campaign did the same,” Mr. Singer said. Albany, of course, is known for turning promises on campaign finance into something far more complicated. During his campaign for governor, Mr. Spitzer talked vigorously about reforming the state’s campaign finance laws, and yet he exploited loopholes by accepting donations from limited liability corporations set up by individuals who could legally circumvent contribution caps. “New York’s campaign finance system is horribly broken,” Mr. Singer said, “a disservice to the public and a burden on the candidate who must raise money to compete.” “To be in public service today,” he also wrote, “one must either raise money as carefully and as diligently as possible or be a multimillionaire who can self-finance. Many people, including Andrew Cuomo, simply do not have the latter option.”

Wednesday, June 23, 2010

Iviewit Patentgate Fraud Jumps Into Anderson Appeal

09-5059-CV
United States Court of Appeals for the Second Circuit
CHRISTINE C. ANDERSON, Plaintiff-Appellant,
--v--
THOMAS J. CAHILL, SHERRY K. COHEN, and DAVID SPOKONY, Defendants-Appellees


MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
P. STEPHEN LAMONT, PRO SE
35 LOCUST AVENUE, RYE, NEW YORK 10580
(914) 217-0038


P. Stephen Lamont, individually, and on behalf of shareholders of Iviewit Holdings, Inc. respectfully moves this Court for leave to file an Amicus Curiae Brief in the instant appeal of Christine C. Anderson v. Thomas J. Cahill, et al. (CA2 Docket No. 09-509-cv, filed November 25, 2009). Amicus Curiae clearly have an interest relating to the “property or transaction which is the subject of the appeal,” i.e., “retaliatory discharge on account of plaintiff’s complaints of whitewashing and corruption,” or, in the case of Amicus Curiae, the sabotage of intellectual property and the subsequent unpaid royalties resulting from whitewashing and corruption. Additionally, Amicus Curiae have both an organizational and a representative interest in this litigation of the issues that are the subject of this appeal, to wit whitewashing and corruption. From an organizational standpoint, a principle function of Amicus Curiae’s existence is to engage in business activity whereby original content creators and others would execute license agreements to benefit from the value propositions of the inventions, and pay royalties for such non-exclusive use. Accordingly, Amicus Curiae have an interest in seeing that conspiracies to whitewash attorney disciplinary complaints are adjudicated along the lines of the relief requested in instant appeal herein, especially when the United States Patent and Trademark Office has signaled that “what’s going on in your New York complaints,” or words to that effect, prior to giving Amicus Curiae the relief necessary to continue their patent applications.

Date: June 22, 2010

Attorney for Amicus Curiae
P. Stephen Lamont, Pro Se
35 Locust Avenue, Rye, N.Y. 10580
(914) 217-0038


*******************************************
09-5059-CV

United States Court of Appeals for the Second Circuit


CHRISTINE C. ANDERSON,
Plaintiff - Appellant,
--v--
THOMAS J. CAHILL, SHERRY K. COHEN, and DAVID SPOKONY,
Defendants-Appellees

AMICUS CURIAE BRIEF

P. STEPHEN LAMONT, PRO SE
35 LOCUST AVENUE, RYE, NEW YORK 10580
(914) 217-0038

Table of Contents

IDENTIFICATION OF THE AMICUS CURIAE
INTEREST IN THE CASE
STATEMENT OF THE BASIS FOR JURISDICTION
SUMMARY OF ARGUMENT
ARGUMENT
A. DISTRICT COURT’S RELIANCE ON
ROOKER-FELDMAN DOCTRINE
B. IMMUNITY ANALYSIS WITHIN THE ORDER
1. Eleventh Amendment Does Not Bar Suits for
Declaratory or Injunctive Relief
2. Explicit §5 Override
3. The District Court’s Order Cannot Claim
Judicial and Qualified Immunity
CONCLUSION

Table of Authorities

Cases

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) 9
District of Columbia Court of Appeals v. Feldman, 460 US. 462,483 n. 16 (1983) 7
Edelman v. Jordan, 415 U.S. 651 (1974) 8 -- Ex Parte Young, 209 U.S. 123, 160 (1908) 8
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005) 7
Kostok v. Thomas, 105 F.3d 65, 69 (2d Cir. 1997) 9
Mitchum v. Foster, 407 U.S. 225,238-39 (1972) 9 -- U.S.C. 28 §1331 6

Constitutional Provisions

§5 of the Fourteenth Amendment 7, 8 -- Eleventh Amendment 7, 8

Statutes

28 U.S.C. § 1291 6 -- 28 U.S.C. §1254(1) 6 -- 28 U.S.C. §1331 6 -- U.S.C. 42 § 1983 9


IDENTIFICATION OF THE AMICUS CURIAE

The Amicus Curiae parties in this instant action are Plaintiffs, Plaintiff-Appellants, and Petitioners in the following cases:

Bernstein, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (07-cv-11196, S.D.N.Y filed December 12, 2007), Opinion and Order filed August 8, 2008 granting Defendants’ Motion to Dismiss.

Bernstein, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (08-cv-4873, CA2 NY, filed October 3, 2008), Opinion and Order filed January 5, 2010 dismissing appeal, Opinion and Order filed January 22, 2010 denying Motion for Reconsideration.

Lamont, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (Docket No. _____________, U.S., filed April 22, 2010).

INTEREST IN THE CASE

Amicus Curiae clearly have an interest relating to the “property or transaction which is the subject of the appeal,” i.e., “retaliatory discharge on account of plaintiff’s complaints of whitewashing and corruption,” or, in the case of Amicus Curiae, the sabotage of intellectual property and the subsequent unpaid royalties resulting from whitewashing and corruption.
Additionally, Amicus Curiae, have both an organizational and a representative interest in this litigation of the issues that are the subject of this appeal, to wit, whitewashing and corruption. From an organizational standpoint, a principle function of Amicus Curiae’s existence is to engage in business activity whereby original content creators and others would execute license agreements to benefit from the value propositions of the Inventions, and pay royalties for such non-exclusive use. Accordingly, Amicus Curiae have an interest in seeing that conspiracies to whitewash attorney disciplinary complaints are adjudicated along the lines of the instant appeal, especially when the United States Patent and Trademark Office has signaled that “what’s going on in your New York complaints,” or words to that effect, prior to giving Amicus Curiae the relief necessary to continue their patent applications. Amicus Curiae’s interests may not be adequately represented by Plaintiff-Appellant Anderson. Thus, Amicus Curiae’s interests, as a practical matter, may be impaired or impeded by its inability to protect these interests without supporting the appeal, particularly given the fact that an adverse ruling by the Court could result in the continuation of the patent sabotage conspiracy, countless unpaid royalties to Amicus Curiae, and the resultant unwillingness of the United States Patent and Trademark Office to issue patents to Amicus Curiae based on the inventions. It remains at best uncertain whether the current Plaintiff-Appellant Anderson’s request for relief will encompass all possible issues related to the whitewashing and corruption in hearing attorney disciplinary complaints. It is much more likely that current Plaintiff-Appellant Anderson in this case will only develop the limited issues pertaining to her individual situation and therefore only seek the relief that would provide her individual remedy. Amicus Curiae will bring to the case a variety of fact patterns involving both conspiracies to whitewash attorney disciplinary complaints and the occurrences of civil racketeering among the same group of Defendants, in part; thus, Amicus Curiae’s support sharpens the argument on both sides and provides the Court with a more useful framework of advocacy from which to issue its decision.

STATEMENT OF THE BASIS FOR JURISDICTION
The District Court had jurisdiction under U.S.C. 28 §1331, and issued its Opinion and Order on August 8, 2008. A Motion for Reconsideration was filed on August 18, 2008, and the District Court denied the Motion on August 19, 2008. A Notice of Appeal was filed on September 4, 2008, and the Courts of Appeals for the Second Circuit has jurisdiction under U.S.C. 28 § 1291. The Court of Appeals dismissed the appeal on January 5, 2010. A Motion for Reconsideration was filed on January 12, 2010, and the Court of Appeals issued its final judgment on January 22, 2010. A Petition for a Writ of Certiorari was filed on April 22, 2010, and the United States Supreme Court has jurisdiction under U.S.C. 28 §1254(1).

SUMMARY OF ARGUMENT

1. Is a fundamental underpinning of Rooker-Feldman doctrine that the proper forum to appeal State court decisions is in State court (Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005))?

2. Does §5 of the Fourteenth Amendment grant Congress the power to enforce, by appropriate legislation, the provisions of that Amendment, and if so, does this Amendment abrogate the immunity provided by the Eleventh Amendment?

3. Is the purpose behind the enactment of 42 U.S.C. § 1983 to secure the protection of Plaintiff-Appellant’s constitutional rights against infringement by State governments and State actors who purportedly act under the authority of State law?

ARGUMENT

Amicus Curiae maintain the following:

A. District Court’s Reliance on Rooker-Feldman Doctrine
- In Amicus Curiae’s proceedings, the District Court invoked the Rooker-Feldman doctrine as a means to support its Order in granting Amicus Curiae’s Respondents’ Motions to Dismiss. A recent decision of the U.S. Supreme Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), makes clear that claim preclusion is a separate doctrine entirely. Exxon stipulates the requisite elements that must be met for the Rooker-Feldman doctrine to apply (See also District of Columbia Court of Appeals v. Feldman, 460 US. 462,483 n. 16 (1983)). None of the factors of Exxon are present in the instant appeal; the Rooker-Feldman doctrine simply does not apply.
B. Immunity Analysis within the Order Regarding Immunity, Amicus Curiae’s Complaint, Amended Complaint, Opposition Memorandums, Appellant Brief, and Petition for a Writ of Certiorari pray for injunctive relief; this was clearly stated.

1. Eleventh Amendment Does Not Bar Suits for Declaratory or Injunctive Relief - The District Court’s bald assertion that in Amicus Curiae’s proceedings the Complaint lacked any foundation upon which the District Court can grant legal relief is clearly erroneous. The Eleventh Amendment does not preclude suit against State officers for the kind of injunctive and declaratory relief at issue here. If a State official acts in contravention of the Constitution, pursuant to an unconstitutional statute, or in a manner that violates an individual's constitutionally protected rights, suit to enjoin the offending behavior is proper and does not run afoul of a State's sovereign immunity. (See Ex Parte Young, 209 U.S. 123, 160 (1908), Edelman v. Jordan, 415 U.S. 651 (1974)). Additionally, Ex Parte Young and Edelman v. Jordan provide that the District Court could have provided retroactive monetary relief against an officer sued in his individual capacity, as bringing an action against an officer in his individual capacity does not implicate State sovereignty.

2. Explicit §5 Override - §5 of the Fourteenth Amendment grants Congress the power to enforce, by appropriate legislation, the provisions of that Amendment; courts have recognized that this new Amendment, again a consensus of the people, abrogates the immunity provided by the Eleventh Amendment. In Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), this Court said that Congress can use its Fourteenth Amendment power to override a State's Eleventh Amendment protection.

3. The District Court’s Order Cannot Claim Judicial and Qualified Immunity. - Furthermore, in their proceedings, the District Court cannot allow Amicus Curiae’s Respondents to use the guise of State authority as a license for violating Amicus-Curiae’s constitutional rights. Indeed, the entire purpose behind the enactment of U.S.C. 42 § 1983 was to secure the protection of individuals' constitutional rights against infringement by State governments and State actors who purportedly act under the authority of State law; Section 1983 creates a private cause of action for damages (as well as injunctive relief) against those "persons" responsible for the deprivation (See Mitchum v. Foster, 407 U.S. 225,238-39 (1972)).
In Kostok v. Thomas, 105 F.3d 65, 69 (2d Cir. 1997), the court determined that declaratory and prospective injunctive relief are available, and that the Plaintiff-Appellants' claims brought under 42 U.S.C. § 1983 need not be dismissed.

CONCLUSION

For all the foregoing reasons, Amicus Curaie respectfully supports that this Court reverse the judgment entered herein, with a finding of fact in favor of Plaintiff-Appellant; or if the Court does not feel that it would be justified by the facts in so doing that it should remand the case for a fair and impartial trial before an unprejudiced jury, on proper evidence, and under correct instructions as the law may deem just and proper.

Date: June 22, 2010

Respectfully submitted,

P. Stephen Lamont, Pro Se
Attorney for Amicus Curiae
P. Stephen Lamont, Pro Se
35 Locust Avenue, Rye, N.Y. 10580
Tel.: (914) 217-0038

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)

The undersigned, P. Stephen Lamont, Pro Se, furnishes the following in compliance with F.R.A.P Rule 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 1365 words.

P. Stephen Lamont, Pro Se
Attorney for Amicus Curiae
35 Locust Avenue, Rye, N.Y. 10580
Tel.: 914) 217-0038

Tuesday, June 22, 2010

New York Post Editorial: Tort Bar Ascending

Tort bar ascending
The New York Post - EDITORIAL - June 22, 2010

Meanwhile, Albany is getting ready to fork over even more cash to the trial lawyers, this time by permitting more lawsuits based on auto accidents. New York is supposed to be a "no fault" state, which means insurance covers bills from auto accidents, eliminating the need to sue. But that means less work, and less money, for lawyers. Hence, the new bill -- which vastly expands the kinds of injuries for which victims can seek damages in court. And it comes on the heels of legislation that, as we pointed out Friday:

* Taxes home, auto and commercial insurance to help fund medical-malpractice coverage for high-risk doctors.

* Lifts the cap on legal fees in such cases, letting lawyers boost their share of awards by as much as 50 percent.

Indeed, there's even a bill to further restrict health-care providers from interviewing witnesses in malpractice cases. It's no surprise, of course, that Albany keeps seeking new ways to line trial lawyers' pockets with New Yorkers' earnings: As we also noted Friday, Assembly Speaker Shelly Silver and Senate Leader John Sampson are both literally on the payrolls of top tort-law firms. Gov. Paterson's father, former New York Secretary of State Basil Paterson, is a partner at another big firm. Nor is there any doubt the latest move will cost New Yorkers a bundle -- up to $100 per premium, according to actuarial firm Milliman Inc. At this rate, it'll be a wonder if New Yorkers manage to keep any of their money away from the trial lawyers.

Monday, June 21, 2010

Somebody Call A Cop

Somebody call a cop
The New York Post - EDITORIAL -June 21, 2010

News -- first reported by The Post -- that state Senate Democratic leader John Sampson tipped off a politically wired firm to its rivals' bids to run slots at Aqueduct isn't enough to convict him of anything. Yet. Nor does a second new report -- that Sampson pressed groups dependent on state funding not to testify against a license for his sister's health-care agency -- make him guilty, per se, of a crime. But New Yorkers should be plenty worried, nonetheless: Sampson, after all, plays a key role in dispensing some $135 billion in taxpayer funds. And law-enforcement agents need to get to the bottom of both reports. The firm Sampson tipped off, Aqueduct Entertainment Group, is already mired in scandal, as The Post noted months ago. In January, Gov. Paterson chose AEG to run slot machines at Aqueduct, but the deal soon fell through -- though not through lack of effort by Sampson. He admits he gave the firm's lobbyist documents describing its competitors' bids. AEG then revised its own bid -- and won the contest. "AEG did alter its bid after the deadline for submissions," state Deputy Inspector General Philip Foglia said in an affidavit. "AEG was in possession of information concerning the details of the submissions of other bidders and the evaluation process that was not available to these other bidders," Foglia added. Sampson claims the documents were public, but the IG's office disagrees -- and two of AEG's competitors told The Post they hadn't seen them. Meanwhile, Crain's Health Pulse reported that Sampson "intevened to supress negative testimony" about an agency called Shining Star Home Care -- which is seeking a license and in which his sister, Yvette Henriquez, holds a 20 percent stake. It said Sampson called groups that rely on state funds, pressing them not testify against Shining Star's application. Again, at this point, allegations against Sampson are just . . . allegations. But if they're true, he has no business in the state Senate -- period. And while the state inspector general -- and federal investigators -- are already probing the AEG deal, it's clear that Sampson needs to be a central focus.

Sunday, June 20, 2010

Refreshing Action Against Inside Government Attorney

Assistant DA Ama Dwimoh suspended as interns claim abuse, saying she yelled, threatened to fire them
The New York Daily News by William Sherman - June 18, 2010


A tough-as-nails Brooklyn assistant district attorney who built her reputation prosecuting child abuse cases is being probed for abusing her interns, the Daily News has learned. District Attorney Charles Hynes has suspended Assistant District Attorney Ama Dwimoh amid allegations she constantly screamed at the intern lawyers - and threatened to fire them for little or no reason, sources said. Dwimoh, 46, who heads the elite crimes against children bureau, and prosecuted the notorious Nixzmary Brown murder case, was relieved of her duties for two weeks pending the internal investigation, the sources said. A spokesman for Hynes confirmed that Dwimoh "is the subject of an internal investigation." He would not elaborate. Dwimoh declined to comment outside her Brooklyn home. The 22-year veteran is expected back Monday even as the probe of her behavior continues. Sources said internal investigators will question all staffers in her bureau. The probe started when a group of interns took its complaints directly to Hynes, sources said. The young intern attorneys all come from private law firms, including some of the city's most prestigious partnerships. Under a special arrangement, they work full time for the 50-person crimes against children bureau. Their firms pay half their salaries and the DA's office pays the other half, sources said. After months of enduring Dwimoh's office rage, the interns decided they had had enough, the sources told The News. Dwimoh, a graduate of Georgetown Law School, has headed the bureau since it was founded in 1997. The bureau investigates and prosecutes all cases involving sex abuse of children under the age of 11 and physical abuse of children under the age of 17 in which the alleged perpetrator is a parent or guardian. It is the only bureau of its kind in the city. It also prosecutes those who kill children and has handled more than 76 of those cases. Dwimoh has said her passion for prosecuting child abuse cases stems from growing up with a friend who was abused by her stepfather. Two years ago, she prosecuted the couple who beat 7-year-old Nixzmary Brown to death after years of physically abusing her in a case that horrified the nation, in part because child welfare workers had visited the couple's home often but took no remedial action. Brown's mother, Nixzaliz Santiago, 30, and her husband, Cesar Rodriguez, Nixzmary's stepfather - the man who struck the fatal blows - were convicted of manslaughter. Santiago is serving up to 43 years in prison and Rodriguez was sentenced to 31 years behind bars. With Mike McLaughlin wsherman@nydailynews.com

Saturday, June 19, 2010

'Good People' Violating the Public Trust

Embezzler Margarita Villegas bawls in court, crying, 'I'm so sorry'
The New York Daily News by Scott Shifrel - June 19, 2010

The politically connected former head of a Bronx nonprofit blubbered like a baby as a federal judge sentenced her to 10 months in prison for embezzling more than $50,000 from the charity. Margarita Villegas, 54, cited a catalogue of good deeds - such as running a local Little League and taking care of her elderly mother - in seeking a no-jail sentence for pleading guilty to looting SBCC Management Corp. of federal bucks intended for low- income, elderly and disabled tenants. "I'm so sorry for those I let down," she said, wiping her eyes with a crumpled tissue as her husband, daughter and other relatives watched. "If it takes me the rest of my life I will pay back every nickel." Manhattan Federal Judge Alvin Hellerstein said he had little choice because Villegas betrayed a public trust. "It's easier to punish bad people than it is to punish good people," he said. "And clearly, Ms. Villegas, you are a good person." Villegas, who's connected to Assemblywoman Carmen Arroyo and Councilwoman Maria del Carmen Arroyo, wailed as the judge and clerk added a $3,000 fine, three years' supervised release and a reimbursement schedule.

Sampson Defends 'Legal' Leak in Aqueduct Deal

Dem defends 'legal' leak in the Aqueduct
The New York Post By BRENDAN SCOTT in Albany and CARL CAMPANILE in NY - June 19, 2010

State Senate Democratic leader John Sampson yesterday insisted he did nothing wrong by leaking two Senate documents to the lobbyist for the politically connected firm that wound up winning the contract to run video slots at Aqueduct Racetrack. "The documentation that was given to Mr. [Carl] Andrews was documentation that was not private, not confidential," Sampson said. "I know what private and confidential documents are. I know what insider information is. I don't engage in anything like that," he said. Sampson gave the memos dated Sept. 30 and Nov. 12 to Brooklyn political chum Carl Andrews, who was the lobbyist for the Aqueduct Entertainment Group at the time. Sampson and Andrews had once served together in the Senate representing adjacent Brooklyn districts. Andrews was also once an aide to Gov. Paterson. The documents provided a Senate analysis of the bids submitted by six firms -- including AEG and its rivals. Rival bidders said they had not seen the memos that Sampson gave Andrews. In a rare and lengthy interview with Albany reporters yesterday, Sampson confirmed The Post's exclusive report that he gave the documents to Andrews -- but insisted it was not a breach. Sampson said he first voluntarily disclosed giving the Senate memos to Andrews in testimony to the state Inspector General's Office, which is investigating accusations of favoritism and bid-rigging surrounding the 30-year, multibillion-dollar award to AEG. After an outcry, Paterson's office killed the AEG deal. Sampson said he did not provide the memos to other interested bidders. He said he only gave the documents to Andrews after the two had a heated exchange over the Aqueduct bidding. He said he told Andrews that the Senate "was not considering" AEG because its initial bid ranked poorly in providing revenue to the state. Andrews disagreed. Sampson said he replied: "I said, 'You know. I'll prove my point to you.' . . . I said, 'Here's our analysis.' I said, 'Here's a copy if you want it. You can have it. It's not gospel.' " The Senate analysis contained what would appear to be sensitive information. It noted, for example, that the Lottery Division concluded that four of the bidders at the time -- Steve Wynn, Delaware North, SL Green/Hard Rock and Penn National Gaming -- cleared background checks and could obtain a gaming license. The Sept. 30 memo also noted that the Lottery Division had determined that two of AEG's key backers were "not licensable." Sampson insisted that giving the memos to Andrews did not give AEG the leg up. AEG investors included influential Queens preacher and former Rep. Floyd Flake and rap mogul Jay-Z. But the investigators with the IG's Office and other bidders have disagreed -- saying AEG's revised submission moved it from the bottom of state evaluations to the top. Sampson said he favored Wynn's "excellent" bid before the Las Vegas casino mogul backed out. But rival bidders said they did not buy Sampson's explanation -- noting that it was an open secret early on that the Senate leadership was behind AEG because of Flake's ties to Senate President Malcolm Smith. brendan.scott@nypost.com

Friday, June 18, 2010

Corrupt Tembeckjian Continues Dirty Tricks

Ethics Panels Cross Swords On Questioning Of Trial Judge
Daniel Wise

The New York Law Journal by Daniel Wise - June 18, 2010

A judicial ethics advisory panel sharply criticized this week the New York State Commission on Judicial Conduct for asking a judge to respond to a complaint made by a party in an "ongoing" custody trial before the judge. The commencement of an investigation mid-trial poses a danger that a litigant will "manipulate" the conduct commission to "disrupt and essentially undermine the judicial process, threaten the judge's independence and defeat the purpose of the commission," the Committee on Judicial Ethics wrote in response to a request for guidance from an unidentified judge. The advisory committee described such a result as "deplorable." Yesterday, the administrator of the judicial conduct commission fired back, calling the criticism "gratuitous" and "unwarranted, particularly where, as here, it was offered without the benefit of the facts and circumstances that prompted the commission's inquiry of the judge in the first place." Read the judicial ethics advisory panel's opinion and the judicial conduct commission's response. Administrator Robert H. Tembeckjian's five-page letter was backed by all 10 members of the commission. Former Appellate Division, First Department, Justice George D. Marlow, the head of the 26-member judicial ethics advisory committee, said in an interview that Ethics Opinion 10-38 was the first in the committee's 23-year history "to disagree with the commission." Mr. Marlow said he could not comment on whether the commission's opinion was unanimous, but said its rules require that at least 14 members endorse an opinion. Mr. Marlow, now counsel at Gellert & Klein in Poughkeepsie, declined to discuss specifics of the opinion. "We disagree with [Mr. Tembeckjian's] interpretation. That's what the opinion says, and its speaks for itself. Beyond that, it would be inappropriate to comment," he said. The question posed by the judge—whether in light of the commission's inquiry it was required that he recuse himself from the case—was not controversial. The ethics committee cited a line of its opinions going back to 1994 for the proposition that a judge need not step aside when a complaint is filed in an ongoing trial as long as he or she can remain impartial. Nonetheless, the advisory panel wrote it "feels compelled to comment on the timing and nature of the commission's written communications with the judge." The possibility that a litigant may be filing a complaint with the conduct commission to try to influence future rulings or force the judge off a case raises an "important concern" that cannot be "ignored," the judicial ethics committee wrote. The opinion also took issue with the questions on matters such as the circumstances under which the judge denied adjournments, whether the judge dismissed and then reinstated the custody petition, and whether the judge refused to accommodate the attorneys' vacation and evening schedules. Such questions, the ethics panel said, raises a "serious concern" that the commission was intruding into an area that should be subject to appellate review, not a disciplinary body.

Judge's Inquiry

Opinion 10-38 was prompted by an inquiry from an unidentified judge who asked whether it was necessary to step down from a "hotly contested" bench trial of a custody issue because the conduct commission had forwarded a copy of an eight-page complaint filed by one of the parties and also asked the judge to respond to a series of questions. The advisory committee's opinions never disclose the name of the inquiring judge. Addressing the timing of the commission's inquiry, the advisory panel wrote that, as a general matter, the commission should not question a judge about a complaint concerning a pending matter until the matter is concluded. In this case, the panel added, the commission should "especially" stay its hand because the inquiring judge was conducting a bench trial. The ethics panel concluded that it "strongly endorses" a rule that would require the commission to hold the questioning of a judge "absent highly exceptional or emergent instances" where intervention is necessary to prevent "irreparable harm." Mr. Tembeckjian said in an interview that the commission adheres to such a rule. In his letter, he wrote, "as a general practice, the Commission refrains from communicating with a judge regarding a pending case, precisely to protect the judiciary's independence and to avoid being used by a complainant to force a recusal." There are exceptions, the letter added, and "obviously" the commission cannot defer a complaint indefinitely. Mr. Tembeckjian wrote that "regrettably" the ethics opinion described the timing of its inquiry as being "in the midst of trial." In fact, he wrote, seven months passed after the last trial session was held before the commission contacted the judge.

More Facts Disclosed

Mr. Tembeckjian also disclosed additional facts to demonstrate that the commission had acted with restraint. The commission first received a complaint about the judge's conduct in March 2009. In June 2009, the judge dismissed the case when one of the parties and his lawyer were 13 minutes late in returning from a luncheon recess. The judge subsequently restored the case, but no hearings have been conducted since June 2009. Meanwhile, according to Mr. Tembeckjian, the commission continued to interview witnesses and review transcripts. Only after narrowing the scope of its inquiry, based upon information turned up during the investigation, he wrote, did it forward the complaint and accompanying questions to the judge on Jan. 29, 2010. "Under those circumstances," Mr. Tembeckjian wrote, "the commission properly chose to inquire of the judge, rather than wait indefinitely." He acknowledged in the interview that the commission's procedures concerning complaints about pending matters are not in writing and are decided upon "a case by case basis." Mr. Tembeckjian also defended the questions posed to the judge as necessary to determine whether the conduct code had been violated, not whether the judge's rulings were correct. Mr. Tembeckjian wrote that it was likely that the ethics committee was not aware of all the facts that drove the commission's decision to question the judge. He noted that the committee had the power to ask the judge for information in addition to what had been submitted. He noted that based upon a teleconference Wednesday with Mr. Marlow, and the committee's two vice chairs, former First Department Justice Betty Weinberg Ellerin and Fourth Department Justice Jerome C. Gorski, he "gathered" there had been no follow-up with the inquiring judge. Mr. Marlow said the judicial ethics panel is empowered to ask for additional information from an inquiring judge, but he is restrained by law from commenting upon whether it did so. Mr. Tembeckjian also said that the ethics panel had not contacted the commission prior to issuing its opinion. Mr. Marlow said the ethics panel did not contact the conduct commission because "it would likely be seen as hypocritical for the committee to contact the commission in the middle of one of their investigations when we have criticized them for inappropriately intervening in an ongoing jury trial." Daniel Wise can be reached at dwise@alm.com.

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2