The System Is the Crime
Judicial Reports by Mark Lagerkvist - October 29, 2008
mark@lagerkvist.net
Judicial campaign committees around Albany are raising funds from law firms with business pending before the judge — and one firm is particularly generous. Supreme Court Appellate Justice Anthony J. Carpinello’s re-election campaign accepted a $10,000 gift in May from an Albany law firm that had recently appeared before him in court to argue a medical malpractice appeal. Three months after the contribution, which was disclosed in his campaign’s filings with the State Board of Elections, Carpinello cast a deciding vote in a 3-2 decision on the case, Caruso v. Northeast Emergency Medical Associates. He also wrote the majority opinion that could allow the firm, Powers & Santola, to collect as much as $200,000 in fees. The judge claims he was unaware of the contribution. “I’ve never done anything unethical in my life,” said Carpinello. “I follow the law, and I’m not supposed to know who contributes to my campaign.” The law firm, meanwhile, contends it would never give a campaign gift to a judge who could be influenced by it. “If this is somebody we think we can curry favor with by making a contribution, we won’t make the contribution,” said senior partner John K. Powers. “Because if we can curry favor, so can someone else. And that’s not somebody we want sitting on the bench.”
SERIAL SHILLING
If there is a guilty party, it is arguably the controversial process of electing judges throughout New York State. Lawyers are allowed to fork over campaign cash to judges running for re-election — even while they have cases pending before those judges. Gifts from attorneys account for roughly half of money raised by Supreme Court candidates, incumbents and challengers, for the coming election. Judges claim they are not influenced because court rules forbid them from learning who contributes to their campaigns or how much. However, details on donors are part of a public record readily available to anyone with an Internet connection.
“They’re not supposed to know who contributes money to them, but they’re also not idiots,” said Powers. “Now that it’s online, somebody’s going to mention to you, at some point, who contributed money.” For next Tuesday’s election, Justice Carpinello’s campaign has raised in excess of $238,000, more than any of the other 51 candidates running for Supreme Court seats across the State, according to its disclosures to the Board of Elections. “I am fighting for my professional career,” said Carpinello. “I’ve worked so hard to schedule my fundraisers – and I do attend because I’m permitted to be there.” A Judicial Reports investigation found that lawyers have handed out more than $116,000 to Carpinello, nearly half of the money raised by his campaign. His political committee has accepted 142 contributions from individual attorneys and 89 from law firms or partnerships, according to disclosures to State Board of Elections. Thirty-eight of the gifts from lawyers were for $1,000 or more.
THE POWERS & SANTOLA THAT BE
At the top of the list is Powers & Santola, a plaintiff’s firm that specializes in personal injury and medical malpractice cases. Its five partners and one associate frequently appear in the Supreme Court venues that surround Albany, including the Appellate Division’s Third Department, where Carpinello sits. And the firm is extraordinarily active on the campaign front, having given five-figure contributions to nine sitting Supreme Court justices, as well as Carpinello’s opponent.
Since 2004, Powers & Santola has doled out $157,725 in campaign cash to Supreme Court candidates in the firm’s primary area of practice, Judicial Reports found in an analysis of campaign filings. Those gifts included:
• $25,000 in 2004 to Presiding Appellate Justice Anthony V. Cardona of the Third Department;
• $20,125 last year to Albany County Supreme Court Justice Joseph C. Teresi;
• $15,000 in 2006 to Appellate Justice Karen K. Peters of the Third Department;
• $15,000 in 2005 to Appellate Justice Edward O. Spain of the Third Department;
• $10,000 last year to Saratoga County Supreme Court Justice Frank B. Williams (who is also Supervising Judge of the Third Judicial District); and
• $10,000 last year to Rensselaer County Supreme Court Justice George B. Ceresia, Jr. (who is also Administrative Judge of the Third District.)
That pattern continues in this year’s election. In addition to its gift to Carpinello, Powers & Santola has written five-figure checks to the following judicial campaigns:
• $10,000 to Schenectady County Supreme Court Justice Vito C. Caruso )who also serves as Administrative Judge of the Fourth District.)
• $10,000 to Saratoga County Supreme Court Justice Stephen A. Ferradino.
• $10,000 to Rensselaer County Court Judge Patrick J. McGrath, who is running against Carpinello for Supreme Court in the Nov. 4 election.
Justices Teresi, Peters, Spain, Williams, Ceresia and McGrath did not respond to calls from Judicial Reports. Through aides, Justices Cardona and Ferradino said they complied with court rules forbidding them from knowing any details about their campaign contributors in compliance. In an interview, Justice Caruso said that although he did see lawyers from Powers & Santola at two of his fundraisers this year, he does not know any details about the contributions from that firm or any other political donors.
“I really do maintain that wall between me and finding out,” said Caruso. “Anybody who wants to can go online and find out. Who’s stopping me, other than my own ethical feelings about it? People say to you, ‘Did you get my contribution?’ How the heck do I know? You look kind of foolish that you don’t know.” Caruso said he has never disqualified himself from a case because of a campaign gift, and that his court decisions could not be swayed by contributions, even if he did know who gave and how much. According to Powers, all of the solicitations from his firm were initiated by the judges’ political committees — which often regard the firm and its renowned political generosity as “low-hanging fruit” for their harvests of campaign cash. “I can’t speak for the judges, but if I were a judge, yes, I’d feel awkward about it,” said Powers. “I’d feel awkward about soliciting contributions from anyone. Because however you go about doing it, that is not going to be a perfect system from insulating you from the fact you’re trying to raise large sums of money over a short period of time.”
Also awkward may be the frequency with which Power’s firm appears in the courts of the judges it supports. Teresi, Ferradino, Ceresia, Caruso and Williams serve as trial-level Supreme Court Justices. Powers & Santola has appeared in their courts in a total of 35 cases during the past two decades, according to the New York State Unified Court System’s eCourts index. Powers & Santola has also appeared repeatedly before Judges Carpinello, Cardona, Spain and Peters in the Third Department of Supreme Court’s Appellate Division. In the past 11 years, the firm has argued 49 cases before the Third Department. In 47 of those instances, the panels of judges included at least one judge who would sooner or later accept a campaign gift of $10,000 or more from the firm. “In my view, we should have public financing of judicial elections because those are the people you want to have the most independence from even the taint of who’s giving the money,” said Powers. “But the reality is until we have that, the only people who are likely to make contributions to candidates are going to be lawyers.”
THE LATEST CONFLICT
The most recent Powers & Santola case before the Third Department was Caruso v. Northeast Emergency Medical Associates. The lead plaintiff was Thomas Caruso of Colonie, who claimed a hospital and emergency room physician failed to diagnose intracranial bleeding in 2001 that led to permanent neurological damage. The defendants were Ellis Hospital, Dr. Alex Pasquariello and Northeast, Pasquariello’s employer.
The case was settled before trial. Pasquariello agreed to pay Caruso $3 million. Ellis Hospital agreed to pay $1 million, plus assign Caruso its right to receive another $1 million, its anticipated indemnification payment from Northeast. However, Northeast refused to pay the $1 million, declaring Caruso had relinquished any rights to collect when he signed the general release in the settlement paperwork. In 2007, the trial court granted a summary judgment in Northeast’s favor. For Powers & Santola, it was a decision that could cost the firm an estimated $200,000 in lost contingency fees. The plaintiff appealed to the Supreme Court’s Appellate Division; the appeal was received by the Third Department on Oct. 15, 2007. A five-judge panel heard oral arguments on Jan. 18, 2008. Seven months later, on August 21, the case was decided by a 3-2 decision in favor of the plaintiff — and Powers & Santola.
The majority opinion, written by Carpinello, ruled that the general release was ambiguous. A dissenting opinion argued that the general release was valid. Northeast has petitioned the Appellate Division for leave to appeal to the State Court of Appeals; a decision has yet to be announced. Absent from the court record is the fact that Carpinello’s re-election campaign accepted the five-figure gift from Powers & Santola on May 13, while the case was being decided. Carpinello asserted that he has never disqualified himself from any case because of political contributions because he said he has no knowledge of those gifts. Sources confirmed that the issue of recusal was not raised in the Caruso appeal. “He probably doesn’t know it,” said Powers. “And if he does know it, he also knows I gave $10,000 to his opponent [Rensselaer County Court Judge Patrick J. McGrath]. Or maybe he knows that I gave $10,000 to his opponent but not [about] the $10,000 to him. I don’t think those things make a difference one way or another. “Is there a chance of [negative] public perception? I guess. Do those who contribute get some sort of favored treatment? If you’re talking about certain boroughs of New York City, that already exists…but it doesn’t happen up here.”
Friday, October 31, 2008
Law School Dean: 2nd Circuit Chief Judge should be "ashamed of himself"
Judge's Remarks Cause Stir Over Goal of Pro Bono Work
The New York Law Journal by Mark Hamblett - October 31, 2008
Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit raised some hackles earlier this month with a speech on pro bono lawyering at a Federalist Society dinner in Rochester. The Oct. 6 speech, entitled "Pro Bono for Fun and Profit," promised at the outset to be "unusually provocative" and the judge said straight away, "My point, in a nutshell, is that much of what we call legal work for the public interest is essentially self-serving: Lawyers use public interest litigation to promote their own agendas, social and political - and (on a wider plane) to promote the power and the role of the legal profession itself."
Judge Jacobs cited examples where litigation against governments and officials had unintended consequences. He criticized "so-called impact litigation" as overtly political and divorced from the requirements of standing. In one case, he said, attorneys at the Brennan Center for Justice at New York University School of Law challenging the legal services statute illustrated "a mechanism that is often in the shadows, and showed how public interest litigation promotes political interests of lawyers and activists, altogether apart from any felt need by clients, who are marginalized or rendered superfluous altogether." Judge Jacobs also went out of his way to appreciate "lawyers who serve people and institutions that otherwise would be denied essential services and opportunities" and praised pro bono work for providing services in the "great tradition of American volunteerism." The speech drew some heated reaction, with Dean Erwin Chemerinsky of the University of California, Irvine School of Law, telling the National Law Journal that Judge Jacobs should be "ashamed of himself." Judge Jacobs later told a law blog that the National Law Journal article "grossly misstates what I said and think," adding later, "I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses."
Judge Jacobs declined to be interviewed when called on the matter, but said he was satisfied to have the full text of the speech published. Daniel L. Greenberg, former President of the Legal Aid Society and now special counsel at Schulte Roth & Zabel, where he heads the firm's pro bono program, had his own reaction to the speech. "It's ironic that a federal judge misunderstands that a pro bono lawyer prevails only after the other side has presented all of its facts, so to rail against the bringing of a lawsuit just strikes me as kind of odd," Mr. Greenberg said. Mr. Greenberg was amused by the notion of powerful pro bono attorneys overwhelming government lawyers, saying, "It just doesn't reflect the reality of what is happening." He added, "It's not incorrect to say that public interest as a category sometimes is broad in terms of the entire public's interest - by definition, there will always be somebody whose ox is gored. I've been doing this for 30 years and I've only had one case where everyone in the firm was pleased."
Here's the speech:
Speech by Judge Dennis G. Jacobs
Transcript - October 6, 2008 - Dennis G. Jacobs
The following remarks were delivered by Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit befoe the Rochester Lawyers Chapter of the Federalist Society on October 6, 2008.
Pro Bono for Fun and Profit
I am deeply flattered to be speaking at the inaugural event of the Rochester chapter of the Federalist Society Lawyers Division. The reason so many people come to the Federalist Society events allover the country, is that, by tradition, the debates are lively and fairly matched and the talks are provocative and free of the usual stuff one hears at meetings of the bar associations. In honor of this occasion, I am going to make some remarks that are perhaps more than usually provocative. When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more. This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity; I will try to explain why such observations are virtually never made by judges; and I will encourage the kind of pro bono activity that is an aspect of traditional American volunteerism.
My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit. There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no. When we do work of this kind, a lot of people would see it as doing well while doing bono. Prosperous law firms that prevail in pro bono litigation do not hesitate to put in for legal fees where the law allows, and happily collect compensation--often from the taxpayers--for work they have touted as their service to the public. And even if the firms donate all or part to charity, the charities are usually groups that have as their charitable object the promotion of litigation rather than (say) medical research or hurricane relief. Whether a goal is pro bono publico or anti, is often a policy and political judgment. No public good is good for everybody. Much public interest litigation, often accurately classified as impact litigation, is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense. Pro bono activity covers a host of things, but I'm going to limit myself to two major categories, which overlap, and which seem to me to call for a close look, and re-appraisal. First, litigation against governments and officials; second, so-called impact litigation.
A lot of public interest litigation is brought against governments, and against the elected and appointed officials of government. I do not delude myself that governments function all the time (or even very often) for the public benefit; and there is no doubt that people who are elected and appointed to government posts are imperfect, make mistakes, and promote themselves, their parties, or the interest groups that support them. But we should sometimes consider that in pro bono litigation, the government itself often has a fair claim to representing the public interest-and often a better claim. Everyone in government is accountable to the public (to the extent the public exacts accountability), either because they are directly elected by the people, or are appointed by elected officials, or hold their positions by virtue of civil service rules that have been created and administered over time by elected and appointed officials.
It is therefore odd that judges, juries and even the public often form the impression that the legal coalitions that sue governments and government officials are the ones who are appearing on behalf of the public interest. Representation of the public interest is high moral ground, the best location in town; so everyone struggles to occupy that space. The field is crowded: the activists and public interest lawyers, the professors and law school clinics, and the pro bono cadres in the law firms. They're in competition with government lawyers, and they often overwhelm government counsel with superior resources. But their standing to speak for the public is self-conferred, nothing more than a pretension. As a group, they (of course) do both good and harm. But, unlike public officials, they never have to take responsibility for the outcomes--intended and unintended--of the policy choices they work to impose in the courts.
I have an apt example. In the 1980s, six environmental organizations brought suit objecting to the Sicily Island Area Levee Project, a federal project to abate backwater flooding in Catahoula Parish, LA. The pro bono activists claimed, among other things, that levee construction could not proceed without an additional environmental impact statement. The District Court dismissed the complaint; but the Fifth Circuit Court of Appeals vacated and remanded on the impact claim, holding that the Army Corps of Engineers was required, in light of an intervening judicial decision, to go back and reconsider assumptions underlying its environmental impact statement, and if necessary issue another one. Circuit Judge Alvin Rubin dissented on the ground that plaintiffs failed to carry their burden of proof as to necessity of a supplemental statement. Judge Rubin pointed out that the project had been planned in 1975, that after several environmental evaluations, litigation began in 1983, and that the Court's 1985 remand would result in more lost time, further litigation attacks on whatever the Army Corps of Engineers come up with, and the possible frustration of the project. As he pointed out: The effect of the course my brethren follow is likely, if pursued in other cases, to be disastrous. [N]o project could ever be completed if the opposition is determined. I've Googled the Sicily Island Area Levee Project. The environmental groups succeeded. As late as 2002, the Army Corps of Engineers was still seeking funds to complete the project. Sicily Island was one of the areas hardest hit by Hurricane Katrina. You can look it up: Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044 (5th Cir. 1985)
I have attended so many luncheons, banquets and cocktail parties honoring public interest lawyers. Many of the public interest groups and pro bono departments honor each other, sometimes over and over. It is very rare for anyone to question the usefulness of public interest lawyering. I was present one day many years ago at a law banquet at which then-Mayor Koch did just that. Unfortunately, the object of the retaliation was my law firm--and we were there in force because we had a table. Mayor Koch said that pro bono lawyers in the law firms frequently act to vindicate interests that are anti-social. He began to describe the case of a woman who (as I recall) had several dozen birds in her City-owned rental apartment. The City sought to evict her on the ground that she was impairing the premises and creating a health menace involving some kind of bird-caused disease that I cannot spell or pronounce. Anyway, the City was doing alright until a lawyer at myoId firm became involved--pro bono--and several years of litigation ensued in which the resources of a Wall Street litigation department were brought to bear. As the Mayor started talking about crazy pro bono litigations that were bedeviling the City, my colleague leaned over and said to me: "My God; he's going to talk about the bird lady." Mayor Koch described the issues in the litigation and its very long and expensive course, in a way that seemed to be quite amusing, at least to people at the other tables. I thought what Mayor Koch was doing was asserting the authority of his elected office as against pro bono lawyers who have neither a general responsibility for public health, nor an interest generally in the conditions or amenities enjoyed by residents of public housing.
The lady with the birds was entitled to a defense of her interests, as I recognized then and today. But, it 1S an entirely separate question whether in rendering that service, pro bono lawyers may be said to represent the public interest in any real sense. When public interest lawyers sue governments and officialdom, they have some natural advantages. What a government does in its operations is often limited by what it can spend, by the civil service employees who carry out its mandates, and by legitimate political considerations. Consequently, it is often the case that in litigation concerning government services, the government is arguing for a program that is not as effective as it would be if there were limitless resources, or on behalf of an agency that could (hypothetically) be improved--such as if every police officer had a degree in Constitutional law. Public interest lawyers, on the other hand, are often arguing for something that is better--which often means more expensive-than what the government is providing (or even can provide) . So a judge may well wonder: Why rule for the town or the state in order to achieve a less than optimal result for the people who live there?
Also, I think judges tend to assume that a government would itself wish to be ordered to spend more money and provide more services--particularly if the money comes from somewhere else. And sometimes a government administration may be politically well-disposed to the objective of the public interest counsel, and may be willing to succumb and be ordered to do what it would wish to do anyway. To my observation, government lawyers rarely argue that they are representing the right of the people to make decisions through their elected representatives: about governance, about the balancing of significant values and interests, and about priorities in the spending of public money and the deploYment of public resources. In any particular case, the government may be right or it may be wrong; but it is odd that government lawyers so easily yield the distinction and prestige of representing the public.
Now, let me turn to what is called impact litigation. Some years ago I was on a panel of my Court on a case that went to the Supreme Court, called Valasguez v. Legal Services. The record in that case offered an extraordinary look into the mechanism of public interest litigation. In a nutshell, Valasguez was a challenge to part of a federal statute governing the Legal Services Corporation, which operates by giving out grants to legal clinics and pro bono groups. The statute said that the grantees could serve individual clients seeking benefits under statutes as written, but could not bring class actions, or challenge the constitutionality of statutes. The kicker was that the statute also provided that any grantee that challenged that proviso would get no grants; this presented a problem for the lawyers in finding a plaintiff--and they set to work on the plaintiff problem.
The attorneys challenging the legal services statute were at the Brennan Center in my old law school, NYU. In order to assure that someone might have standing to challenge this statute, a scatter-shot approach was used; there were a score of plaintiffs, each one citing by affidavit the role he or she played in the prosecution of public interest litigation and therefore the interest that each had in overturning the statutory restraint on the ability of grantees to bring class actions and conduct impact litigation. The affidavits submitted to establish standing shed a bright light on a mechanism that is often in shadows, and showed how public interest litigation promotes political interests of lawyers and activists, often altogether apart from any felt need by clients, who are marginalized or rendered superfluous altogether. The plaintiffs' affidavits show that the use of LSC funds for client service to individual needy persons with legal problems is at best a secondary interest to them (a bore) as they work with indefatigable hands to channel public money toward political ends.
What do the affidavits say?
A New York City Councilmember was deprived of a body of lawyers who would "influenc[e] legislation, including engaging in lobbying activities and testifying before legislative bodies. [He] can no longer call upon various attorneys to assist" him in drafting legislation, (JA 218) or rely on them "to enforce the legislation" that he and they drafted together. (JA 217).
A plaintiff with a farmworkers group relied on a grantee to conduct "educational workshops. . to inform [farmworkersl of their rights," to represent them in "judicial, administrative and/or legislative proceedings," and to give "legal advice and training ln connection with advocacy programs." (JA 262-65). A plaintiff employed by a grantee said that she has as "an integral component of her work" to educate disabled and elderly persons about their legal rights, and then represent them in vindicating those rights. (JA 283). The managing attorney of another grantee averred she has "no interest in practicing law except on behalf of poor people, persons with disabilities, or other groups of oppressed people." (JA 186-87).
The director of special litigation at another grantee had as part of her work identifying issues and undertaking class actions "in the program's highest priority areas," "and to reach out and maintain communication with client groups to determine problems where intensified advocacy is needed." (JA 134-35). The general counsel to a grantee averred that his group has for decades worked with legal services offices, serving as a client for briefs amicus curiae, as a donor of policy analysis in class action litigation, and as a provider of expert testimony. (JA 194-95).
Another plaintiff averred that he had "donated money" to a legal services program for the elderly, with the hope that it could be spent "without any restrictions on the type of legal action taken or clients represented." The donor was, incidentally, of counsel to that organization in at least one other litigation. One of those witnesses explained that "[a] n essential part" of her work has been "public testimony and comments, bill and regulation drafting, and advocacy in legislative and regulatory forums and conducting community legal education." (JA 149). (JA 150-51).
The affidavits of the plaintiffs in the Valasguez case thereby described a reciprocating motor of political activism that ties together policy research and lobbying, litigation and briefs amicus, and the arousing of politically-targeted demographics in which lawyers go shopping for useful clients. In a couple of ways, this resembles how industries in the private sector lobby and litigate, and there is nothing unethical about these initiatives. At the same time, private-sector lobbyists don't finance their efforts with public money, do not claim or get the prestige of doing their work in the public interest--and they have honest-to-goodness clients. Lots of people work hard on political initiatives and campaigns, on every side. But they are not acting pro bono (and do not deserve that pretension): Neither are lawyers who are promoting their political agendas in the courts.
When I started talking I said that I would be articulating some views that you don't hear from judges, and I said that I would explain why this occasion--on which a judge says a single word critical of public interest litigation--is so rare. The fact is, most judges are very grateful for public interest and impact litigation. Cases in which the lawyers can and do make an impact are (by the same token) cases in which the judges can make an impact; and impacts are exercises of influence and power. Judges have little impetus to question or complain when activist lawyers identify a high-visibility issue, search out a client that has at least a nominal interest, and present for adjudication questions of consequence that expand judicial power and influence over hotly debated issues. If the question is sufficiently important, influential and conspicuous, it matters little to many judges whether the plaintiff has any palpable injury sufficient to support standing or even whether there is a client at all behind the litigation, as opposed to lawyers with a cause whose preparation for suit involves (in addition to research and drafting) the finding of a client--as a sort of technical requirement (like getting a person over 18 years old to serve the summons).
Similarly, you will hear no criticism of public interest litigation or impact litigation at the bar associations, and I submit that is for essentially the same reason. When matters of public importance are brought within the ambit of the court system, lawyers as well as judges are empowered. True, we have an adversary system, but the adversary system is staffed on every side by lawyers. There is a neutral judge, but judges are lawyers too; and it is hard for a judge to avoid an insidious bias in favor of assuming that all things important need to be contested by the workings of the legal profession, and decided by the judiciary. In the courtroom, advocates advocate, and judges rule, but lawyers as a profession encounter no competitors for influence and power. In the solution of political, social, moral and policy questions, everyone else is subordinated: public officials, the voters, the rate-payers, the clergy, the teachers and principals, the wardens, the military and the police. The lawyers and judges become the only active players, and everything that matters--the nature of the proceedings, how the issues are presented, what arguments and facts may be considered, the allowable patterns of analysis--are all decided and implemented by legal professionals and the legal profession, and dominated and ordered by what we think of proudly as the legal mind. Great harm can be done when the legal profession uses pro bono litigation to promote political ends and to advance the interests and powers of the legal profession and the judicial branch of our governments. Constitutionally necessary principles are eroded: the requirement of a case or controversy; the requirement of standing. Democracy itself is impaired: The people are distanced from their government; the priorities people vote for are re-ordered; the fisc is opened. These things are done by judges who are unelected (or designated in arcane ways), at the behest of a tiny group of ferociously active lawyers making arguments that the public (being busy about the other needs of family and work) cannot be expected to study or understand. And, on those rare occasions when our competitors protest, when elected officials and the public contend that the courts and legal profession have gone too far and have arrogated to themselves powers that belong to other branches of government, to other professions or other callings, or that would benefit from other modes of thinking (such as morals or faith), the Bar forms a cordon around the judiciary and declares that any harsh or effective criticism is an attack on judicial independence.
When I was in practice, I met my firm's benchmark hours for pro bono service, and I am as appreciative about work done for the public good as anybody else. The Second Circuit often reaches out to prevail on lawyers to represent parties and points-of-view that lack other representation, and we are grateful for such services rendered. To the extent that lawyers act as volunteers for the relief of those who require but cannot afford legal services, lawyers' work is beyond praise. I am grateful (and I think the public should be grateful) to lawyers who serve people and institutions that otherwise would be denied essential services and opportunities. I think of wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit. (Perhaps less is done in the way of assistance to small businesses and individuals who could use help in coping with the web of regulation they encounter.) My colleague, Judge Robert A. Katzmann, has called for lawyers to step forward to assist aliens who are working their way through our immigration system, and I subscribe entirely.
These services are in a great tradition of American volunteerism. Indeed, the overwhelming weight of important volunteer services are provided by non-lawyers outside any legal context: volunteers in hospitals, hospices and nursing homes; individuals who mobilize for disaster relief; volunteers for military service; people who take care of the old and sick and children in our own families; volunteer teachers in churches and schools and prisons; members of PTAs; poll-watchers; volunteer firemen and people who maintain forests and trails; coaches in community centers; people who serve on school boards, and other local government bodies, including block associations--not to mention philanthropists. Of course, lawyers do many of these things side by side with other citizens. When lawyers contribute their professional services, they are making a contribution on a par with what countless volunteers do in other professions, crafts, and walks of life. By the same token, we are doing no more than acting in the spirit of volunteer service that animates people in every walk of life and field of endeavor. So I encourage such work. But in the policy area, we should as a profession consider dispassionately whether some public interest litigation has become an anti-social influence, whether the promotion of social and political agendas in the courts is in any real sense a service to the public, and whether the public interest would be best served by initiatives to abate somewhat the power of judges and lawyers and the legal profession as an interest group.
The New York Law Journal by Mark Hamblett - October 31, 2008
Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit raised some hackles earlier this month with a speech on pro bono lawyering at a Federalist Society dinner in Rochester. The Oct. 6 speech, entitled "Pro Bono for Fun and Profit," promised at the outset to be "unusually provocative" and the judge said straight away, "My point, in a nutshell, is that much of what we call legal work for the public interest is essentially self-serving: Lawyers use public interest litigation to promote their own agendas, social and political - and (on a wider plane) to promote the power and the role of the legal profession itself."
Judge Jacobs cited examples where litigation against governments and officials had unintended consequences. He criticized "so-called impact litigation" as overtly political and divorced from the requirements of standing. In one case, he said, attorneys at the Brennan Center for Justice at New York University School of Law challenging the legal services statute illustrated "a mechanism that is often in the shadows, and showed how public interest litigation promotes political interests of lawyers and activists, altogether apart from any felt need by clients, who are marginalized or rendered superfluous altogether." Judge Jacobs also went out of his way to appreciate "lawyers who serve people and institutions that otherwise would be denied essential services and opportunities" and praised pro bono work for providing services in the "great tradition of American volunteerism." The speech drew some heated reaction, with Dean Erwin Chemerinsky of the University of California, Irvine School of Law, telling the National Law Journal that Judge Jacobs should be "ashamed of himself." Judge Jacobs later told a law blog that the National Law Journal article "grossly misstates what I said and think," adding later, "I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses."
Judge Jacobs declined to be interviewed when called on the matter, but said he was satisfied to have the full text of the speech published. Daniel L. Greenberg, former President of the Legal Aid Society and now special counsel at Schulte Roth & Zabel, where he heads the firm's pro bono program, had his own reaction to the speech. "It's ironic that a federal judge misunderstands that a pro bono lawyer prevails only after the other side has presented all of its facts, so to rail against the bringing of a lawsuit just strikes me as kind of odd," Mr. Greenberg said. Mr. Greenberg was amused by the notion of powerful pro bono attorneys overwhelming government lawyers, saying, "It just doesn't reflect the reality of what is happening." He added, "It's not incorrect to say that public interest as a category sometimes is broad in terms of the entire public's interest - by definition, there will always be somebody whose ox is gored. I've been doing this for 30 years and I've only had one case where everyone in the firm was pleased."
Here's the speech:
Speech by Judge Dennis G. Jacobs
Transcript - October 6, 2008 - Dennis G. Jacobs
The following remarks were delivered by Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit befoe the Rochester Lawyers Chapter of the Federalist Society on October 6, 2008.
Pro Bono for Fun and Profit
I am deeply flattered to be speaking at the inaugural event of the Rochester chapter of the Federalist Society Lawyers Division. The reason so many people come to the Federalist Society events allover the country, is that, by tradition, the debates are lively and fairly matched and the talks are provocative and free of the usual stuff one hears at meetings of the bar associations. In honor of this occasion, I am going to make some remarks that are perhaps more than usually provocative. When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more. This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity; I will try to explain why such observations are virtually never made by judges; and I will encourage the kind of pro bono activity that is an aspect of traditional American volunteerism.
My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit. There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no. When we do work of this kind, a lot of people would see it as doing well while doing bono. Prosperous law firms that prevail in pro bono litigation do not hesitate to put in for legal fees where the law allows, and happily collect compensation--often from the taxpayers--for work they have touted as their service to the public. And even if the firms donate all or part to charity, the charities are usually groups that have as their charitable object the promotion of litigation rather than (say) medical research or hurricane relief. Whether a goal is pro bono publico or anti, is often a policy and political judgment. No public good is good for everybody. Much public interest litigation, often accurately classified as impact litigation, is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense. Pro bono activity covers a host of things, but I'm going to limit myself to two major categories, which overlap, and which seem to me to call for a close look, and re-appraisal. First, litigation against governments and officials; second, so-called impact litigation.
A lot of public interest litigation is brought against governments, and against the elected and appointed officials of government. I do not delude myself that governments function all the time (or even very often) for the public benefit; and there is no doubt that people who are elected and appointed to government posts are imperfect, make mistakes, and promote themselves, their parties, or the interest groups that support them. But we should sometimes consider that in pro bono litigation, the government itself often has a fair claim to representing the public interest-and often a better claim. Everyone in government is accountable to the public (to the extent the public exacts accountability), either because they are directly elected by the people, or are appointed by elected officials, or hold their positions by virtue of civil service rules that have been created and administered over time by elected and appointed officials.
It is therefore odd that judges, juries and even the public often form the impression that the legal coalitions that sue governments and government officials are the ones who are appearing on behalf of the public interest. Representation of the public interest is high moral ground, the best location in town; so everyone struggles to occupy that space. The field is crowded: the activists and public interest lawyers, the professors and law school clinics, and the pro bono cadres in the law firms. They're in competition with government lawyers, and they often overwhelm government counsel with superior resources. But their standing to speak for the public is self-conferred, nothing more than a pretension. As a group, they (of course) do both good and harm. But, unlike public officials, they never have to take responsibility for the outcomes--intended and unintended--of the policy choices they work to impose in the courts.
I have an apt example. In the 1980s, six environmental organizations brought suit objecting to the Sicily Island Area Levee Project, a federal project to abate backwater flooding in Catahoula Parish, LA. The pro bono activists claimed, among other things, that levee construction could not proceed without an additional environmental impact statement. The District Court dismissed the complaint; but the Fifth Circuit Court of Appeals vacated and remanded on the impact claim, holding that the Army Corps of Engineers was required, in light of an intervening judicial decision, to go back and reconsider assumptions underlying its environmental impact statement, and if necessary issue another one. Circuit Judge Alvin Rubin dissented on the ground that plaintiffs failed to carry their burden of proof as to necessity of a supplemental statement. Judge Rubin pointed out that the project had been planned in 1975, that after several environmental evaluations, litigation began in 1983, and that the Court's 1985 remand would result in more lost time, further litigation attacks on whatever the Army Corps of Engineers come up with, and the possible frustration of the project. As he pointed out: The effect of the course my brethren follow is likely, if pursued in other cases, to be disastrous. [N]o project could ever be completed if the opposition is determined. I've Googled the Sicily Island Area Levee Project. The environmental groups succeeded. As late as 2002, the Army Corps of Engineers was still seeking funds to complete the project. Sicily Island was one of the areas hardest hit by Hurricane Katrina. You can look it up: Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044 (5th Cir. 1985)
I have attended so many luncheons, banquets and cocktail parties honoring public interest lawyers. Many of the public interest groups and pro bono departments honor each other, sometimes over and over. It is very rare for anyone to question the usefulness of public interest lawyering. I was present one day many years ago at a law banquet at which then-Mayor Koch did just that. Unfortunately, the object of the retaliation was my law firm--and we were there in force because we had a table. Mayor Koch said that pro bono lawyers in the law firms frequently act to vindicate interests that are anti-social. He began to describe the case of a woman who (as I recall) had several dozen birds in her City-owned rental apartment. The City sought to evict her on the ground that she was impairing the premises and creating a health menace involving some kind of bird-caused disease that I cannot spell or pronounce. Anyway, the City was doing alright until a lawyer at myoId firm became involved--pro bono--and several years of litigation ensued in which the resources of a Wall Street litigation department were brought to bear. As the Mayor started talking about crazy pro bono litigations that were bedeviling the City, my colleague leaned over and said to me: "My God; he's going to talk about the bird lady." Mayor Koch described the issues in the litigation and its very long and expensive course, in a way that seemed to be quite amusing, at least to people at the other tables. I thought what Mayor Koch was doing was asserting the authority of his elected office as against pro bono lawyers who have neither a general responsibility for public health, nor an interest generally in the conditions or amenities enjoyed by residents of public housing.
The lady with the birds was entitled to a defense of her interests, as I recognized then and today. But, it 1S an entirely separate question whether in rendering that service, pro bono lawyers may be said to represent the public interest in any real sense. When public interest lawyers sue governments and officialdom, they have some natural advantages. What a government does in its operations is often limited by what it can spend, by the civil service employees who carry out its mandates, and by legitimate political considerations. Consequently, it is often the case that in litigation concerning government services, the government is arguing for a program that is not as effective as it would be if there were limitless resources, or on behalf of an agency that could (hypothetically) be improved--such as if every police officer had a degree in Constitutional law. Public interest lawyers, on the other hand, are often arguing for something that is better--which often means more expensive-than what the government is providing (or even can provide) . So a judge may well wonder: Why rule for the town or the state in order to achieve a less than optimal result for the people who live there?
Also, I think judges tend to assume that a government would itself wish to be ordered to spend more money and provide more services--particularly if the money comes from somewhere else. And sometimes a government administration may be politically well-disposed to the objective of the public interest counsel, and may be willing to succumb and be ordered to do what it would wish to do anyway. To my observation, government lawyers rarely argue that they are representing the right of the people to make decisions through their elected representatives: about governance, about the balancing of significant values and interests, and about priorities in the spending of public money and the deploYment of public resources. In any particular case, the government may be right or it may be wrong; but it is odd that government lawyers so easily yield the distinction and prestige of representing the public.
Now, let me turn to what is called impact litigation. Some years ago I was on a panel of my Court on a case that went to the Supreme Court, called Valasguez v. Legal Services. The record in that case offered an extraordinary look into the mechanism of public interest litigation. In a nutshell, Valasguez was a challenge to part of a federal statute governing the Legal Services Corporation, which operates by giving out grants to legal clinics and pro bono groups. The statute said that the grantees could serve individual clients seeking benefits under statutes as written, but could not bring class actions, or challenge the constitutionality of statutes. The kicker was that the statute also provided that any grantee that challenged that proviso would get no grants; this presented a problem for the lawyers in finding a plaintiff--and they set to work on the plaintiff problem.
The attorneys challenging the legal services statute were at the Brennan Center in my old law school, NYU. In order to assure that someone might have standing to challenge this statute, a scatter-shot approach was used; there were a score of plaintiffs, each one citing by affidavit the role he or she played in the prosecution of public interest litigation and therefore the interest that each had in overturning the statutory restraint on the ability of grantees to bring class actions and conduct impact litigation. The affidavits submitted to establish standing shed a bright light on a mechanism that is often in shadows, and showed how public interest litigation promotes political interests of lawyers and activists, often altogether apart from any felt need by clients, who are marginalized or rendered superfluous altogether. The plaintiffs' affidavits show that the use of LSC funds for client service to individual needy persons with legal problems is at best a secondary interest to them (a bore) as they work with indefatigable hands to channel public money toward political ends.
What do the affidavits say?
A New York City Councilmember was deprived of a body of lawyers who would "influenc[e] legislation, including engaging in lobbying activities and testifying before legislative bodies. [He] can no longer call upon various attorneys to assist" him in drafting legislation, (JA 218) or rely on them "to enforce the legislation" that he and they drafted together. (JA 217).
A plaintiff with a farmworkers group relied on a grantee to conduct "educational workshops. . to inform [farmworkersl of their rights," to represent them in "judicial, administrative and/or legislative proceedings," and to give "legal advice and training ln connection with advocacy programs." (JA 262-65). A plaintiff employed by a grantee said that she has as "an integral component of her work" to educate disabled and elderly persons about their legal rights, and then represent them in vindicating those rights. (JA 283). The managing attorney of another grantee averred she has "no interest in practicing law except on behalf of poor people, persons with disabilities, or other groups of oppressed people." (JA 186-87).
The director of special litigation at another grantee had as part of her work identifying issues and undertaking class actions "in the program's highest priority areas," "and to reach out and maintain communication with client groups to determine problems where intensified advocacy is needed." (JA 134-35). The general counsel to a grantee averred that his group has for decades worked with legal services offices, serving as a client for briefs amicus curiae, as a donor of policy analysis in class action litigation, and as a provider of expert testimony. (JA 194-95).
Another plaintiff averred that he had "donated money" to a legal services program for the elderly, with the hope that it could be spent "without any restrictions on the type of legal action taken or clients represented." The donor was, incidentally, of counsel to that organization in at least one other litigation. One of those witnesses explained that "[a] n essential part" of her work has been "public testimony and comments, bill and regulation drafting, and advocacy in legislative and regulatory forums and conducting community legal education." (JA 149). (JA 150-51).
The affidavits of the plaintiffs in the Valasguez case thereby described a reciprocating motor of political activism that ties together policy research and lobbying, litigation and briefs amicus, and the arousing of politically-targeted demographics in which lawyers go shopping for useful clients. In a couple of ways, this resembles how industries in the private sector lobby and litigate, and there is nothing unethical about these initiatives. At the same time, private-sector lobbyists don't finance their efforts with public money, do not claim or get the prestige of doing their work in the public interest--and they have honest-to-goodness clients. Lots of people work hard on political initiatives and campaigns, on every side. But they are not acting pro bono (and do not deserve that pretension): Neither are lawyers who are promoting their political agendas in the courts.
When I started talking I said that I would be articulating some views that you don't hear from judges, and I said that I would explain why this occasion--on which a judge says a single word critical of public interest litigation--is so rare. The fact is, most judges are very grateful for public interest and impact litigation. Cases in which the lawyers can and do make an impact are (by the same token) cases in which the judges can make an impact; and impacts are exercises of influence and power. Judges have little impetus to question or complain when activist lawyers identify a high-visibility issue, search out a client that has at least a nominal interest, and present for adjudication questions of consequence that expand judicial power and influence over hotly debated issues. If the question is sufficiently important, influential and conspicuous, it matters little to many judges whether the plaintiff has any palpable injury sufficient to support standing or even whether there is a client at all behind the litigation, as opposed to lawyers with a cause whose preparation for suit involves (in addition to research and drafting) the finding of a client--as a sort of technical requirement (like getting a person over 18 years old to serve the summons).
Similarly, you will hear no criticism of public interest litigation or impact litigation at the bar associations, and I submit that is for essentially the same reason. When matters of public importance are brought within the ambit of the court system, lawyers as well as judges are empowered. True, we have an adversary system, but the adversary system is staffed on every side by lawyers. There is a neutral judge, but judges are lawyers too; and it is hard for a judge to avoid an insidious bias in favor of assuming that all things important need to be contested by the workings of the legal profession, and decided by the judiciary. In the courtroom, advocates advocate, and judges rule, but lawyers as a profession encounter no competitors for influence and power. In the solution of political, social, moral and policy questions, everyone else is subordinated: public officials, the voters, the rate-payers, the clergy, the teachers and principals, the wardens, the military and the police. The lawyers and judges become the only active players, and everything that matters--the nature of the proceedings, how the issues are presented, what arguments and facts may be considered, the allowable patterns of analysis--are all decided and implemented by legal professionals and the legal profession, and dominated and ordered by what we think of proudly as the legal mind. Great harm can be done when the legal profession uses pro bono litigation to promote political ends and to advance the interests and powers of the legal profession and the judicial branch of our governments. Constitutionally necessary principles are eroded: the requirement of a case or controversy; the requirement of standing. Democracy itself is impaired: The people are distanced from their government; the priorities people vote for are re-ordered; the fisc is opened. These things are done by judges who are unelected (or designated in arcane ways), at the behest of a tiny group of ferociously active lawyers making arguments that the public (being busy about the other needs of family and work) cannot be expected to study or understand. And, on those rare occasions when our competitors protest, when elected officials and the public contend that the courts and legal profession have gone too far and have arrogated to themselves powers that belong to other branches of government, to other professions or other callings, or that would benefit from other modes of thinking (such as morals or faith), the Bar forms a cordon around the judiciary and declares that any harsh or effective criticism is an attack on judicial independence.
When I was in practice, I met my firm's benchmark hours for pro bono service, and I am as appreciative about work done for the public good as anybody else. The Second Circuit often reaches out to prevail on lawyers to represent parties and points-of-view that lack other representation, and we are grateful for such services rendered. To the extent that lawyers act as volunteers for the relief of those who require but cannot afford legal services, lawyers' work is beyond praise. I am grateful (and I think the public should be grateful) to lawyers who serve people and institutions that otherwise would be denied essential services and opportunities. I think of wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit. (Perhaps less is done in the way of assistance to small businesses and individuals who could use help in coping with the web of regulation they encounter.) My colleague, Judge Robert A. Katzmann, has called for lawyers to step forward to assist aliens who are working their way through our immigration system, and I subscribe entirely.
These services are in a great tradition of American volunteerism. Indeed, the overwhelming weight of important volunteer services are provided by non-lawyers outside any legal context: volunteers in hospitals, hospices and nursing homes; individuals who mobilize for disaster relief; volunteers for military service; people who take care of the old and sick and children in our own families; volunteer teachers in churches and schools and prisons; members of PTAs; poll-watchers; volunteer firemen and people who maintain forests and trails; coaches in community centers; people who serve on school boards, and other local government bodies, including block associations--not to mention philanthropists. Of course, lawyers do many of these things side by side with other citizens. When lawyers contribute their professional services, they are making a contribution on a par with what countless volunteers do in other professions, crafts, and walks of life. By the same token, we are doing no more than acting in the spirit of volunteer service that animates people in every walk of life and field of endeavor. So I encourage such work. But in the policy area, we should as a profession consider dispassionately whether some public interest litigation has become an anti-social influence, whether the promotion of social and political agendas in the courts is in any real sense a service to the public, and whether the public interest would be best served by initiatives to abate somewhat the power of judges and lawyers and the legal profession as an interest group.
Thursday, October 30, 2008
Presidential Candidates Challenged on Corruption Fix (CLICK HERE)
Presidential Candidates asked to pledge to close the IRS, and realign resources from the Treasury Department to the understaffed Justice Department to fight Public Corruption.
Integrity in the Courts
“Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr.
Court Group Challenges Presidential Candidates to Close the IRS, and realign Resources from the Treasury Department to the Justice Department to fight Corruption
___________________________
Integrity in the Courts Asks All Federal Candidates To Protect Individual Liberties by Abolishing the Tax Code and IRS
Integrity in the Courts, a New York based public interest group, has joined with several other organizations to found a non-partisan Coalition to Abolish the Tax Code and the IRS. The purpose of the new coalition is to support various proposals put forth by such groups as the National Federation of Independent Businesses (seeking wide scale tax reform), Freedom Works (favoring flat tax), Americans for Fair Taxation, Fair Tax Blog, and the CATO Institute (favoring national sales tax).
These policy groups and others have as a common goal eliminating the current tax code and the Internal Revenue Service. They seek to replace the code with an entirely new tax system that would be uncomplicated, just and fair. Also, any substitute system would use as its cornerstone a consumer friendly monitoring agency, in place of one that strikes fear in the hearts of most Americans.
Under the plan, the nationwide IRS structure, and most of the 90,000-plus well-trained personnel, would be reassigned from duties under the Treasury Department to functions within the understaffed Department of Justice to specifically address issues of public corruption.
Every Citizen’s Plea is Clear: “Restore our faith in our government!”
The Coalition to Abolish the IRS is seeking to impact the presidential elections, as well as all races for Federal office. It is asking Democratic, Republican and third party candidates to sign
a pledge to vote to abolish the tax court and the IRS in the event they are elected to office.
The Coalition has issued the following statement in support of its pledge drive: “The Coalition believes that it is imperative that this tax reform effort become an essential element in the 2008 Federal elections. Without question, the outright abolishment of the current unfair, unworkable, overly complex tax system is long overdue. Most importantly, as citizens are freed from government intruding in their personal lives, the abolishment of the present tax system will restore individual creativity, drive and initiative that will be major factors in reviving the economic engine of the United States.
The Pledge
The Coalition to Abolish the IRS has requested all candidates for Federal office to execute the following pledge. The pledge below has been drawn up for the two major party presidential candidates:
I, Barack Obama/John McCain, hereby pledge to propose as a first order of business legislation to the U.S. Congress to abolish the present Tax Code and the Internal Revenue Service during my first term in office. I further pledge to support legislation to replace the present code with a system that is simple, honest, and fair. Under the new system to be proposed, the IRS will be eliminated and replaced with a mere bookkeeping agency with strictly limited powers. I am committed to fighting public corruption and will lead the nation in the restoration of the people’s faith in their government.
In addition, I hereby call on all candidates for election to the House and Senate to pledge to vote for the legislation I will propose to abolish the tax code and IRS.
For further information contact the coalition at: abolish.irs@gmail.com
For More Information, Contact:
Frank Brady at Integrity in the Courts
www.IntegrityInTheCourts.com
206-426-3558 (tel and fax)
BLOG: www.CoalitionToAbolishTheIRS.wordpress.com
########
Integrity in the Courts
“Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr.
October 30, 2008
Senator Barack Obama
713 Hart Senate Office Building
Washington, D.C. 20510 Via facsimile 202-228-4260
Senator John McCain
241 Russell Senate Office Building
Washington, D.C. Via facsimile 202-228-2862
RE: Your Signed Pledge to Restore Our Faith in Our Government
Dear Senators Obama and McCain,
Integrity in the Courts, a New York based public interest group, has joined with several other organizations to found a non-partisan Coalition to Abolish the Tax Code and the IRS. The purpose of the new coalition is to support various proposals put forth by such groups as the National Federation of Independent Businesses, Freedom Works, Americans for Fair Taxation, Fair Tax Blog, and the CATO Institute.
Under the plan, the nationwide IRS structure, and most of the 90,000-plus well-trained personnel, would be reassigned from duties under the Treasury Department to functions within the understaffed Department of Justice to specifically address issues of public corruption.
It is respectfully requested that you review the attached, and sign the following pledge:
I, __________________________, hereby pledge to propose as a first order of business legislation to the U.S. Congress to abolish the present Tax Code and the Internal Revenue Service during my first term in office. I further pledge to support legislation to replace the present code with a system that is simple, honest, and fair. Under the new system to be proposed, the IRS will be eliminated and replaced with a mere bookkeeping agency with strictly limited powers. I also pledge my commitment to fighting public corruption and will lead the nation in the restoration of the people’s faith in their government.
In addition, I hereby call on all candidates for election to the House and Senate to pledge to vote for the legislation I will propose to abolish the tax code and IRS.
Date: _________________ __________________________________
Good Luck. To all of us!
Founded by Committee for Fair Tax, Integrity in the Courts, Government Reorganization.Com, In Support of: National Federation of Independent Business, Freedom Works
The Coalition to Abolish IRS has been founded to support the goals of a number of national organizations that seek the replacement of the present burdensome, inequitable and unfair tax code and the IRS. These organizations propose replacement systems that will assure fairness, simplicity and justice, together with the abolishment of the IRS. Among the organizations supported by the Coalition are National Federation of Independent Business.
On June 17, 1998, the House of Representatives passed the Tax Code Termination Act (H.R.3097) by a 219-209 vote. The National Federation of Independent Business endorsed the legislation. On July 28, 1998, the U.S. Senate failed to pass the legislation n a 49 – 49 vote. At the time of its passage, the Tax Code Termination Act was seen as an outstanding victory for a grass roots effort of average taxpayers, small business owners, and all persons who have experienced dread and fear on receiving a notice from the IRS. Since that time, many proposals have been put forth to abolish the present tax system, but to date, they have not been made a part of national election campaigns.
The Coalition to Abolish IRS is placing the question of this fundamental tax reform on the national agenda by seeking the endorsement of all candidates for election to the House, Senate and the Presidency. All candidates for federal office are requested to take a similar pledge.
The Coalition believes that it is imperative that this tax reform legislative proposal become a central element of plans to overcome the present economic crisis. Without question, the abolishment of the present unfair, regressive system and the IRS enforcement agency will unleash individual productivity, drive, ingenuity, dedication and initiative that will generate economic growth and prosperity.
As critics well know, the present tax system in the U.S. has far more in common with plans of Karl Marx to redistribute wealth than the fundamental goal of our founding fathers to never subject our population to the unfairness of a national income taxation system. Unfortunately, the Congress long ago abandoned this basic economic freedom charted by the founders, replacing it with a grotesque tax code, which unfairly victimizes all who cannot employ tax accountants, and subjects countless honest, hard working citizens to an IRS, which assumes the taxpayer to be guilty, directly contrary to the Constitutional guarantee of presumption of innocence.
The American Revolution was fought to end the right of the King of England to destroy his subjects through unfair tax systems. The Coalition and those national organizations it supports are solely dedicated to restore fairness to the tax system, preserving the personal rights and liberties of all citizens. And in this process, the IRS, which ranks as the government’s largest, most inefficient, costly, unfair, arbitrary and unjust administrative agency, will be totally abolished.
The Coalition, on behalf of all organizations seeking fundamental reform of the U.S, tax system, invites all candidates for federal office to execute the attached pledge to abolish the tax code and the IRS. In this way, the 2008 general elections will mark the end of the present federal tax system, and the restoration of personal economic freedom with the realignment of Resources from the Treasury Department to the Justice Department to fight Public Corruption.
For More, See: www.abolishIRS.8k.com
“Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr.
PRESS RELEASE For Immediate Release
Court Group Challenges Presidential Candidates to Close the IRS, and realign Resources from the Treasury Department to the Justice Department to fight Corruption
___________________________
Integrity in the Courts Asks All Federal Candidates To Protect Individual Liberties by Abolishing the Tax Code and IRS
Integrity in the Courts, a New York based public interest group, has joined with several other organizations to found a non-partisan Coalition to Abolish the Tax Code and the IRS. The purpose of the new coalition is to support various proposals put forth by such groups as the National Federation of Independent Businesses (seeking wide scale tax reform), Freedom Works (favoring flat tax), Americans for Fair Taxation, Fair Tax Blog, and the CATO Institute (favoring national sales tax).
These policy groups and others have as a common goal eliminating the current tax code and the Internal Revenue Service. They seek to replace the code with an entirely new tax system that would be uncomplicated, just and fair. Also, any substitute system would use as its cornerstone a consumer friendly monitoring agency, in place of one that strikes fear in the hearts of most Americans.
Under the plan, the nationwide IRS structure, and most of the 90,000-plus well-trained personnel, would be reassigned from duties under the Treasury Department to functions within the understaffed Department of Justice to specifically address issues of public corruption.
Every Citizen’s Plea is Clear: “Restore our faith in our government!”
The Coalition to Abolish the IRS is seeking to impact the presidential elections, as well as all races for Federal office. It is asking Democratic, Republican and third party candidates to sign
a pledge to vote to abolish the tax court and the IRS in the event they are elected to office.
The Coalition has issued the following statement in support of its pledge drive: “The Coalition believes that it is imperative that this tax reform effort become an essential element in the 2008 Federal elections. Without question, the outright abolishment of the current unfair, unworkable, overly complex tax system is long overdue. Most importantly, as citizens are freed from government intruding in their personal lives, the abolishment of the present tax system will restore individual creativity, drive and initiative that will be major factors in reviving the economic engine of the United States.
The Pledge
The Coalition to Abolish the IRS has requested all candidates for Federal office to execute the following pledge. The pledge below has been drawn up for the two major party presidential candidates:
I, Barack Obama/John McCain, hereby pledge to propose as a first order of business legislation to the U.S. Congress to abolish the present Tax Code and the Internal Revenue Service during my first term in office. I further pledge to support legislation to replace the present code with a system that is simple, honest, and fair. Under the new system to be proposed, the IRS will be eliminated and replaced with a mere bookkeeping agency with strictly limited powers. I am committed to fighting public corruption and will lead the nation in the restoration of the people’s faith in their government.
In addition, I hereby call on all candidates for election to the House and Senate to pledge to vote for the legislation I will propose to abolish the tax code and IRS.
For further information contact the coalition at: abolish.irs@gmail.com
For More Information, Contact:
Frank Brady at Integrity in the Courts
www.IntegrityInTheCourts.com
206-426-3558 (tel and fax)
BLOG: www.CoalitionToAbolishTheIRS.wordpress.com
########
Here's the Letter sent to the Presidential Candidates and All U.S. Senators:
Integrity in the Courts
“Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr.
October 30, 2008
Senator Barack Obama
713 Hart Senate Office Building
Washington, D.C. 20510 Via facsimile 202-228-4260
Senator John McCain
241 Russell Senate Office Building
Washington, D.C. Via facsimile 202-228-2862
RE: Your Signed Pledge to Restore Our Faith in Our Government
Dear Senators Obama and McCain,
Integrity in the Courts, a New York based public interest group, has joined with several other organizations to found a non-partisan Coalition to Abolish the Tax Code and the IRS. The purpose of the new coalition is to support various proposals put forth by such groups as the National Federation of Independent Businesses, Freedom Works, Americans for Fair Taxation, Fair Tax Blog, and the CATO Institute.
Under the plan, the nationwide IRS structure, and most of the 90,000-plus well-trained personnel, would be reassigned from duties under the Treasury Department to functions within the understaffed Department of Justice to specifically address issues of public corruption.
It is respectfully requested that you review the attached, and sign the following pledge:
I, __________________________, hereby pledge to propose as a first order of business legislation to the U.S. Congress to abolish the present Tax Code and the Internal Revenue Service during my first term in office. I further pledge to support legislation to replace the present code with a system that is simple, honest, and fair. Under the new system to be proposed, the IRS will be eliminated and replaced with a mere bookkeeping agency with strictly limited powers. I also pledge my commitment to fighting public corruption and will lead the nation in the restoration of the people’s faith in their government.
In addition, I hereby call on all candidates for election to the House and Senate to pledge to vote for the legislation I will propose to abolish the tax code and IRS.
Date: _________________ __________________________________
Good Luck. To all of us!
Very truly yours,
Frank Brady for Integrity in the Courts
www.IntegrityInTheCourts.com
abolish.irs@gmail.com
206-426-3558 (tel and fax)
Frank Brady for Integrity in the Courts
www.IntegrityInTheCourts.com
abolish.irs@gmail.com
206-426-3558 (tel and fax)
******************************************
Founded by Committee for Fair Tax, Integrity in the Courts, Government Reorganization.Com, In Support of: National Federation of Independent Business, Freedom Works
The Coalition to Abolish IRS has been founded to support the goals of a number of national organizations that seek the replacement of the present burdensome, inequitable and unfair tax code and the IRS. These organizations propose replacement systems that will assure fairness, simplicity and justice, together with the abolishment of the IRS. Among the organizations supported by the Coalition are National Federation of Independent Business.
On June 17, 1998, the House of Representatives passed the Tax Code Termination Act (H.R.3097) by a 219-209 vote. The National Federation of Independent Business endorsed the legislation. On July 28, 1998, the U.S. Senate failed to pass the legislation n a 49 – 49 vote. At the time of its passage, the Tax Code Termination Act was seen as an outstanding victory for a grass roots effort of average taxpayers, small business owners, and all persons who have experienced dread and fear on receiving a notice from the IRS. Since that time, many proposals have been put forth to abolish the present tax system, but to date, they have not been made a part of national election campaigns.
The Coalition to Abolish IRS is placing the question of this fundamental tax reform on the national agenda by seeking the endorsement of all candidates for election to the House, Senate and the Presidency. All candidates for federal office are requested to take a similar pledge.
The Coalition believes that it is imperative that this tax reform legislative proposal become a central element of plans to overcome the present economic crisis. Without question, the abolishment of the present unfair, regressive system and the IRS enforcement agency will unleash individual productivity, drive, ingenuity, dedication and initiative that will generate economic growth and prosperity.
As critics well know, the present tax system in the U.S. has far more in common with plans of Karl Marx to redistribute wealth than the fundamental goal of our founding fathers to never subject our population to the unfairness of a national income taxation system. Unfortunately, the Congress long ago abandoned this basic economic freedom charted by the founders, replacing it with a grotesque tax code, which unfairly victimizes all who cannot employ tax accountants, and subjects countless honest, hard working citizens to an IRS, which assumes the taxpayer to be guilty, directly contrary to the Constitutional guarantee of presumption of innocence.
The American Revolution was fought to end the right of the King of England to destroy his subjects through unfair tax systems. The Coalition and those national organizations it supports are solely dedicated to restore fairness to the tax system, preserving the personal rights and liberties of all citizens. And in this process, the IRS, which ranks as the government’s largest, most inefficient, costly, unfair, arbitrary and unjust administrative agency, will be totally abolished.
The Coalition, on behalf of all organizations seeking fundamental reform of the U.S, tax system, invites all candidates for federal office to execute the attached pledge to abolish the tax code and the IRS. In this way, the 2008 general elections will mark the end of the present federal tax system, and the restoration of personal economic freedom with the realignment of Resources from the Treasury Department to the Justice Department to fight Public Corruption.
Wednesday, October 29, 2008
Administrative Judge Clean-Up Releases Creative Juices
On Monday, October 20, 2008, we announced that Thanksgiving would be coming before Halloween this year, in that "A New Administrative Judge May be Coming to a Corrupt Court Near You."
As a matter of background, it had been first announced that Manhattan Administrative Judge Jacqueline W. Silbermann, the deputy chief administrative judge for matrimonial matters, was going to leave her post in December. The "official story" was that she really only stayed on because Chief Judge Kaye "asked" her to stay on last year. The "REAL STORY" is that she was told she'd get the boot from the administrative post and return to a regular calander by year's end, so she "decided" to take a job a Blank Rome. And in mid-October, it was revealed that 9th Judicial District Administrative Judge Francis Nicolai, was told that he was no longer welcome as the administrator of anything. He was also told to move out of his "shrine-like" administrative offices by the end of December.
It now seems, through sources, that Judge Nicolai has been attempting to negotiate a promotion for himself, to a statewide post equal to a deputy chief administrative level position. And that will make him happy, sources say, as long as he gets to maintain a Westchester office, where he feels most at home. It's also rumored, from folks on Madison Avenue at 25th Street, that he's even petitioned former Chief Administrative Judge Jonathan Lippman to take on his cause. Judge Lippman, understandingly, has been too busy dealing with important court business to really focus on Judge Nicholai's "dreams," and as one clerk described it. The clerk, who asked not to be identified because he likes his job, says Nicolai sees the normal accolades, "...since he was such a great administrator in the 9th, the entire state should have him..." Smiling, the clerk cautions, "Be careful what you ask for, you just might get it. Nicholai out as Administrative Judge of Westchester, Dutchess, Rockland, Putnam and Orange, but back in a higher position over all state affairs." It could be a very scary halloween.
As a matter of background, it had been first announced that Manhattan Administrative Judge Jacqueline W. Silbermann, the deputy chief administrative judge for matrimonial matters, was going to leave her post in December. The "official story" was that she really only stayed on because Chief Judge Kaye "asked" her to stay on last year. The "REAL STORY" is that she was told she'd get the boot from the administrative post and return to a regular calander by year's end, so she "decided" to take a job a Blank Rome. And in mid-October, it was revealed that 9th Judicial District Administrative Judge Francis Nicolai, was told that he was no longer welcome as the administrator of anything. He was also told to move out of his "shrine-like" administrative offices by the end of December.
It now seems, through sources, that Judge Nicolai has been attempting to negotiate a promotion for himself, to a statewide post equal to a deputy chief administrative level position. And that will make him happy, sources say, as long as he gets to maintain a Westchester office, where he feels most at home. It's also rumored, from folks on Madison Avenue at 25th Street, that he's even petitioned former Chief Administrative Judge Jonathan Lippman to take on his cause. Judge Lippman, understandingly, has been too busy dealing with important court business to really focus on Judge Nicholai's "dreams," and as one clerk described it. The clerk, who asked not to be identified because he likes his job, says Nicolai sees the normal accolades, "...since he was such a great administrator in the 9th, the entire state should have him..." Smiling, the clerk cautions, "Be careful what you ask for, you just might get it. Nicholai out as Administrative Judge of Westchester, Dutchess, Rockland, Putnam and Orange, but back in a higher position over all state affairs." It could be a very scary halloween.
Click here to see what Judge Lippman might be busy working on: $40 Millions Reason Not To Lie to Judge Lippman
Big Baby Attorney, Now on Short End, Dislikes Nasty Stunts
Ex-NY BigLaw Partner Sues Citigroup, Claims Bank Blocked Deal Strategy She Invented
The New York Law Journal by Mark Hamblett - October 29, 2008
A former Pillsbury Winthrop Shaw Pittman attorney yesterday sued Citigroup, Inc. and Citigroup Capital Markets claiming violations of the Sherman Act for allegedly blocking the implementation of her patent-pending structure for bonds used to finance airport construction. Linda Grant Williams also claimed that Citigroup, which dominates the market in so-called Airline Special Facility Bonds, pressured Pillsbury and a second firm, Greenberg Traurig, to remove her "from her positions with these firms, thereby depriving her of a platform from which to credibly market her cost-saving structure to the airlines who would benefit from it." In addition to costing her legal and licensing fees, Ms. Williams claimed lost income from the defendants' alleged interference with her equity partnership position with Pillsbury and her relationship with Greenberg. She claims the airlines were hurt because they had to pay artificially high interest rates on the bonds.
The New York Law Journal by Mark Hamblett - October 29, 2008
A former Pillsbury Winthrop Shaw Pittman attorney yesterday sued Citigroup, Inc. and Citigroup Capital Markets claiming violations of the Sherman Act for allegedly blocking the implementation of her patent-pending structure for bonds used to finance airport construction. Linda Grant Williams also claimed that Citigroup, which dominates the market in so-called Airline Special Facility Bonds, pressured Pillsbury and a second firm, Greenberg Traurig, to remove her "from her positions with these firms, thereby depriving her of a platform from which to credibly market her cost-saving structure to the airlines who would benefit from it." In addition to costing her legal and licensing fees, Ms. Williams claimed lost income from the defendants' alleged interference with her equity partnership position with Pillsbury and her relationship with Greenberg. She claims the airlines were hurt because they had to pay artificially high interest rates on the bonds.
Selective Mob Tactics Continue at Judicial Ethics Commission
Family Court Judge Ousted From Bench
Failed to Protect Parents' Rights, Ruling Says
The New York Law Journal by Joel Stashenko - October 29, 2008
ALBANY - An upstate Family Court judge has been removed from the bench for putting "onerous and unfair" barriers in the way of some parties appearing personally in his court. The Court of Appeals yesterday in In the Matter of David F. Jung, 150, unanimously upheld the removal recommendation against Family Court Judge David F. Jung of Fulton County made earlier this year by the Commission on Judicial Conduct. Judge Jung, an attorney, was elected to the Family Court bench in 1992 and also has served as an acting Supreme Court justice. The decision appears on page 28 of the print edition of today's Law Journal. The Court held that Judge Jung appeared to mistakenly believe his actions were excused by the discretion given judges under the Family Court Act "for dealing with the complexities of family life." "He fails to grasp that with such discretion comes grave responsibilities to the litigants before him as well as to their children," the Court ruled in a per curiam decision. "While we recognize that petitioner has well served youth in his court and through his extensive involvement in community service, part and parcel of effecting the 'best interests' of a child is affording that child's parent the rights inherent in the parental bond."
The Court cited five instances of misconduct, which also formed the basis of the Commission on Judicial Conduct's unanimous removal recommendation against Judge Jung (NYLJ, Feb. 20). One case involved Karrie Foote, a learning disabled and illiterate woman who was held in contempt for failing to appear before a support magistrate in a custody case in May 2005. When she appeared before Judge Jung and requested counsel, he told her it was "too late" and "double too late" for representation. He sentenced her to 180 days in the county jail based on the support magistrate's contempt holding, according to yesterday's ruling. Ms. Foote was released nearly two months later under a writ of habeas corpus by a Supreme Court justice. An Appellate Division, Third Department, panel in People ex rel Foote v. Lorey, 28 AD3d 917 (2006), affirmed the writ. In response to the Third Department ruling, Judge Jung issued a press release defending his policies and expressing "disappointment" at the decision. He said he would begin confirming support magistrates' rulings in writing instead of having defendants appear in person.
In three other cases cited by the Court yesterday, people were not allowed to appear before Judge Jung in cases in which they were parties because they were incarcerated on unrelated charges. In all three cases, Judge Jung sentenced defendants in absentia to jail terms of at least 180 days and revoked their custody rights to their children, according to the Court. The cases represented impermissible breaches of litigants' basic rights that judges should be safeguarding, the Court determined yesterday. It suggested that the lapses were more egregious because Third Department panels granted writs of habeas corpus to three parties jailed by Judge Jung. "Plainly, even the Appellate Division precedents failed to impress the importance of these due process rights upon petitioner in any meaningful way," the Court held yesterday. Removal from the bench will prohibit Judge Jung from holding judicial office again in New York state. His case was the 66th in which the Court has accepted a removal recommendation from the conduct commission. In nine other cases, the Court reduced removal recommendations to censures and in two others, increased the recommended punishment of censure to removal.
Judge Jung's attorney, Vincent Capasso Jr. of Capasso & Massaroni in Schenectady, said in a statement yesterday that his client had served "honorably and admirably" as a judge. "Although we are understandably disappointed with the Court's decision, we accept its determination and will move forward," Mr. Capasso said. Edward Lindner of the conduct commission argued for the agency before the Court. Robert Tembeckjian, the commission's administrator, said Judge Jung's policy was "basically not to ensure the presence of people whose rights were to be affected. That was the egregious nature of the conduct." The Fulton County Bar Association filed an amicus curiae in the case arguing that Judge Jung, who had an otherwise unblemished record and who did not profit personally from his misconduct, should not be removed from the bench. "Judge Jung has shown courage, fairness and independence on the bench, and has treated attorneys and litigants who appeared before him with respect and dignity," Anthony Casale of Schur & Casale in Mayfield wrote on behalf of the bar group. Joel.Stashenko@incisivemedia.com
Here's the NYS Court of Appeals Ruling:
Decided on October 28, 2008
No. 150 In the Matter of the Honorable
[*1]David F. Jung, a Judge of the Family Court, Fulton County. Petitioner, For Review of a Determination of State Commission on Judicial Conduct Respondent.
Vincent Capasso, Jr., for petitioner.
Edward Lindner, for respondent.
Fulton County Bar Association, amicus curiae.
PER CURIAM:
Petitioner, a Judge of the Family Court, Fulton County, commenced this proceeding to review a determination of the State Commission on Judicial Conduct that sustained five charges of misconduct against him and imposed the sanction of removal from judicial office. Upon our plenary review of the record, we accept the determined sanction.
After serving as a law guardian for more than a decade, in 1989 petitioner was elected to the Fulton County Family Court and in 1992 he was appointed to serve as an Acting [*2]Supreme Court Justice. In 2005, petitioner presided over a series of Family Court cases that form the basis of the Commission's findings. By formal complaint dated December 6, 2006, the Commission served him with five charges. Charges I, II and III alleged violations of litigants' right to be heard and of Sections 100.1, 100.2 (A), and 100.3 (B)(1) and (6), of the Rules of Judicial Conduct. Charges I, IV and V alleged violations of litigants' right to counsel and violations of the same sections.[FN1]
On April 19, 2007, petitioner, his counsel and Commission counsel entered into a stipulation of facts. A hearing was held on April 26, 2007, and the Referee accepted the stipulation into evidence. Petitioner testified, called two witnesses to testify on his behalf, and submitted additional affidavits attesting to his character. On September 7, 2007, the Referee sustained all five charges based on petitioner's violation of litigants' rights when he entered defaults and sentenced them, in absentia, to jail. The Commission unanimously sustained all charges, concluding that petitioner violated the cited sections of the Rules of Judicial Conduct, and imposed the sanction of removal, noting that as a consequence of petitioner's disregard of fundamental rights, five litigants were sentenced to significant terms of incarceration and at least three served several months in jail on the unlawful sentences he imposed.
I. Factual Findings
DeMagistris
Charge I alleged that while presiding over the case of Wendy Lynn Hohenforst v Thomas DeMagistris, petitioner violated the defendant's due process rights, including the right to be heard and the right to counsel, when he summarily held DeMagistris in default on two family offense petitions and sentenced him in absentia to two consecutive 180-day terms of incarceration notwithstanding that defendant was being held in a courthouse holding cell throughout the proceeding.
Outside of the courtroom prior to a family offense proceeding before petitioner, DeMagistris verbally assaulted counsel for his children's mother, Hohenforst, and was placed in a Family Court holding cell. Petitioner thereafter convened a proceeding in the courtroom and placed on the record a description of the incident, stating that DeMagistris was not in the courtroom because he had been placed under arrest for "criminal behavior" and had thus waived his right to appear. Subsequently, petitioner dismissed counsel for both parties upon their own motions without inquiry as to whether DeMagistris had notice of his counsel's request. Upon excusing counsel for the mother, petitioner asked if she wanted an adjournment, which she declined. Following an inquest, petitioner granted the relief she requested, including divesting [*3]DeMagistris of custody of his children, dismissed defendant's cross-motion for failure to prosecute, and sentenced defendant to a year of incarceration. Petitioner directed that DeMagistris be served with the orders if he was still in the holding cell.
DeMagistris was released by Supreme Court's grant of a writ of habeas corpus, affirmed by the Appellate Division (see Matter of Hohenforst v DeMagistris, 44 AD3d 1114 [3d Dept 2007]).
Constantino
Charge II alleged that in Fulton County Department of Social Services v Angelic Constantino, petitioner violated Constantino's due process rights when he failed to order her produced in court although he knew she was incarcerated in a correctional facility outside the county, summarily found her in default, sentenced her in absentia to six months incarceration, and revoked her custodial rights.
At the time, petitioner's longstanding policy was that "incarcerated litigants had to request of the court to be produced by the court." After unsuccessful attempts to contact petitioner's court, Constantino, incarcerated in another county, failed to appear for an April 11, 2005 hearing before petitioner on a custody petition and an allegation that she had violated an order of protection. Although petitioner knew that the Fulton County Department of Social Services had served Ms. Constantino with the petition in Schenectady County jail, and acknowledged having been told by counsel for the father's parents that Constantino was in jail, petitioner denied that he had actual knowledge that she was in jail, as he considered counsel's statement hearsay. He later maintained that if Constantino "has a normal IQ and she didn't know how to ask [for an order to produce] . . . it's her responsibility to find out." He stated, further, that although the summons did not alert her to his policy, she was obligated to find out by "word of mouth." On April 12, 2005, Constantino called the court from jail and asked why she had not been produced. Court staff informed her of petitioner's policy and advised her to put her concerns in writing, which she did with the assistance of attorney in a letter dated April 15, 2005. Her attorney was told that as "no request was received from Angelic Constantino and the court was in receipt of an affidavit of service," the matter had proceeded upon default.
Constantino was released by Supreme Court's grant of a writ of habeas corpus, affirmed by the Appellate Division (see The People of the State of New York ex rel Angelic Constantino v Lorey, 28 AD3d 1041 [3d Dept 2006]).
DaCorsi
Charge III alleged that in Matter of Julie A. Dacre v Dennis A. DaCorsi, petitioner violated DaCorsi's due process rights when, knowing that DaCorsi was incarcerated and unable to appear, he found him in default and sentenced him to nine months in jail.
DaCorsi was due to appear before petitioner on a custody petition on April 28, 2005. According to petitioner's docket sheet, DaCorsi's sister called on April 27, 2005 and [*4]informed the court that her brother had been arrested but was due to appear in Family Court the following day. A clerk told her that either the sheriff or DaCorsi himself would have to contact the court and ask that he be produced. Petitioner was informed (although the actual date is in dispute) that someone claiming to be DaCorsi's sister had called, but testified that he had "no idea if it was his sister" and if it was that she "could have gone over to the jail with a piece of paper to sign and she could have delivered it to the court and I would have produced him." Petitioner explained that, in any event, he did not consider the sister's call a request to produce.
Petitioner held DaCorsi in default, and after an inquest DaCorsi lost custody of his children and was sentenced in absentia to consecutive terms of 90 days and 180 days incarceration. On June 26, 2006, petitioner granted DaCorsi's motion to vacate the default judgment and for petitioner's disqualification.
Smith
Charge IV maintained that in Matter of Dale A. Rulison v Nickie L. Smith, petitioner violated Smith's right to counsel when he denied her request for assigned counsel as late, summarily affirmed a magistrate's order that found her in default when she failed to appear for a hearing on a child support matter, and sentenced her to 90 days in jail.
It was petitioner's policy that a litigant seeking assigned counsel in a family offense proceeding had to apply for a public defender within two weeks of initial appearance, regardless of the date of the hearing. On January 12, 2005, Smith appeared before a support magistrate to answer charges that she had violated an order of support. She requested counsel and was given an application for the public defender, and the matter was adjourned until April 27, 2005. On February 8, 2005, Smith submitted an application for representation by a public defender in the child support matter. Petitioner said the application was late and on February 14, 2005 denied it as untimely. On February 14, 2005, Smith also submitted an application for representation in a custody and visitation matter. Petitioner approved that application on February 18, 2005.
On April 27, 2005, Smith failed to appear for the support hearing and the magistrate declared her in default and recommended that she be held in contempt. On May 18, 2005, Smith appeared before petitioner for a confirmation proceeding. Petitioner later explained that the confirmation hearing was "merely [for the judge] to approve what the support magistrate did. . . . Or the judge may, and I emphasize may, conduct an evidentiary hearing, which is not what we were doing in this case." When Smith attempted to defend herself against the petition, petitioner said "I don't see any objections filed here," confirmed the magistrate's determination and sentenced Smith to jail. Smith said she had sought representation from the public defender and never heard anything; petitioner responded "you'll have to take it up with the public defender's office." Petitioner testified that he did not see, upon reviewing her file, that Smith had been assigned counsel on the custody matter and that he did not attempt to find out if any court [*5]attorneys were present at the courthouse that day.
Smith did not appeal or move to vacate petitioner's decision, and was released from jail after paying a "purge."
Foote
Charge V alleged that in Matter of Timothy Foote v Karrie Foote, petitioner violated Karrie Foote's due process rights when, despite evidence that she was learning-disabled and unable to read, he denied her the right to counsel, summarily affirmed the magistrate's finding of default and sentenced her to 180 days in jail.
Foote appeared before a support magistrate on January 20, 2005, on charges of contempt of court for willful violation of an order of support. She told the magistrate that she could not read and did not have a lawyer. The magistrate told her she could apply for a public defender and adjourned the matter until May 11, 2005. Foote obtained an application but never filed it. On April 4, 2005, she appeared before petitioner on a custody modification petition. Petitioner advised Foote of her right to an attorney and instructed her to fill out an application. The parties met with a court mediator, resolved their custody dispute and returned to petitioner's courtroom for confirmation.
Foote believed that this custody settlement resolved the support matter, and failed to appear before the support magistrate on May 11, 2005. The magistrate declared her in default and recommended that she be held in contempt. On May 25, 2005, Foote appeared, without counsel, at a confirmation proceeding in front of petitioner, and told petitioner she had requested a lawyer. Petitioner responded that it was "too late," later explaining that he meant it was "a double too late" "too late . . . with me and too late . . . with the magistrate."
Petitioner maintained that he could not have sent the Foote matter back to the support magistrate or taken steps to obtain counsel for her because he would have violated a Uniform Rule providing that a litigant is entitled to only one adjournment absent good cause, and he did not find good cause. He confirmed the decision and told Foote he was going to incarcerate her. Foote's mother addressed the court, explaining that Foote couldn't read and that she herself had not had time to read the papers or explain them to her daughter. She stated:
"I told Kerrie that she needs to ask for a lawyer. She needs to be represented by a lawyer. I don't understand how these procedures can go on without her having some kind of representation. Especially when she doesn't even read. . . . She has a fourth grade reading level."
Petitioner responded:
"[Y]ou're telling me that. That doesn't make it a fact. But if we had some medical proof that was so, if she had told somebody that, I, I'm not the magistrate, so I didn't hear the case." [*6]
Petitioner signed an order committing Foote to the Fulton County Jail. He later acknowledged that Foote herself told the support magistrate she could not read and that he had "noted that" in his review of the record. He also recalled her mother saying "that she had the ability of a fourth grade reader, which is a pretty good ability."
Foote was released by Supreme Court's grant of a writ of habeas corpus nearly two months later. The Appellate Division affirmed (see People ex rel Foote v Lorey, 28 AD3d 917 [3d Dept 2006]).
After the Appellate Division's Foote decision, petitioner issued a press release defending his policies and expressing "disappointment" at the determination. Petitioner additionally stated:
"Henceforth, in an effort to further streamline and simplify procedures, since the statute does not specifically require the Court to mandate court appearances of parties so that confirmation of the Support Magistrate's decision can be made in person, the Court will simply issue a written confirmation unless the Court finds that the Support Magistrate erred in some fashion."
. . . .
"If, at some point, the Appellate Division . . . re-considers this issue and reverses itself as it has done in the past, or that if the Court of Appeals rules in favor of our prior policy and procedure, we can and will reinstate same."
During the Commission's investigation, petitioner testified that he wouldn't have handled any of the cases any differently.
II. Analysis
At issue here is petitioner's denial of due process to litigants in family offense — specifically custody and support — proceedings. DeMagistris, Constantino and DaCorsi involved denial of the right to be heard; DeMagistris, Smith and Foote the right to counsel.
The right to be heard is fundamental to our system of justice (see Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]; Jones v Berman, 37 NY2d 42, 55 [1975]). Parents have an equally fundamental interest in the liberty, care and control of their children (see Stanley v Illinois, 405 US 645, 651 [1972]; Matter of Ella B., 30 NY2d 352, 356 [1972]). The right to be heard, therefore, necessarily attaches to family offense proceedings, regardless of a party's status as incarcerated or otherwise detained pursuant to state authority (see Matter of Tristram K., 25 AD3d 222, 226 [1st Dept 2005]["[e]ven an incarcerated parent has a right to be heard on matters concerning [her] child, where there is neither a willful refusal to appear nor a waiver of appearance"]). This right is no less vital to a [*7]proceeding for summary contempt (see Katz v Murdoch, 28 NY2d 234, 238 [1971][a person subject to incarceration for contempt is entitled to an opportunity to appear and "to offer any reason in law or fact why that judgment should not be pronounced"]; see Matter of Mosso v Mosso, 6 AD3d 827, 829 [3d Dept 2004] ["due process requires that . . . the contemnor be afforded 'an opportunity to be heard at a meaningful time and in a meaningful manner'"]; see also Family Court Act § 454 (1), (3) [providing for incarceration "after hearing" on a willful violation of an order of support]).
Integral to this fundamental interest in the liberty, care and control of their children, and coextensive with the right to be heard in a meaningful manner, is a parent's right to representation of counsel in family offense proceedings. "[A]n indigent parent, faced with the loss of a child's society, as well as the possibility of criminal charges, . . . is entitled to the assistance of counsel" (Ella B., 30 NY2d at 356 [codified in 1975 and extended to provide litigants with the right to counsel in custody, family offense and contempt proceedings (see Family Court Act §§ 261, 262 [v], [vii])]). The right to counsel includes the right to notice prior to a court-ordered withdrawal from representation (CPLR 321 [b][2]; In re Kindra B., 296 AD2d 456, 458 [2d Dept 2002]). Waiver of this right must be "unequivocal, voluntary and intelligent;" a court is obligated to make a "searching inquiry" to ensure that it is (see People v Smith, 92 NY2d 516, 520 [1998]).
At most, petitioner would now concede that his denial of these rights to litigants amounted to legal error and not misconduct. As we have previously explained, the two are not necessarily mutually exclusive; a pattern of fundamental legal error may be "serious misconduct" (Matter of Reeves, 63 NY2d 105, 109 [1984]); see Sardino v State Com'n on Judicial Conduct, 58 NY2d 286, 289 [1983]; see McGee v State Com'n on Judicial Conduct, 59 NY2d 870, 871 [1983]). Moreover, the Court agrees with the Commission that in denying litigants these rights, petitioner also violated the Rules of Judicial Conduct.
Although judicial disciplinary proceedings are not punishment (Matter of Esworthy, 77 NY2d 280, 283 [1991]), the severe sanction of removal is warranted where a jurist has exhibited a "pattern of injudicious behavior . . . which cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d 658, 660 [1988]) or an abuse of "the power of his office in a manner that . . . has irredeemably damaged public confidence in the integrity of his court" (Matter [*8]of McGee, 59 NY2d 870, 871 [1983]). Such behavior is especially "intolerable" in Family Court, "where matters of the utmost sensitivity are often litigated by those who are unrepresented and unaware of their rights" (Matter of Esworthy, 77 NY2d at 283). Removal is thus appropriate when a Family Court judge exhibits conduct "which necessarily has the effect of leaving litigants with the impression that our judicial system is unfair and unjust" (id. [among other misconduct, "[i]n case after case" judge "neglected to inform litigants appearing before him of their constitutional and statutory rights, including their right to counsel"]).
Here, in four out of five cases, the due process violations at issue resulted from two policies that petitioner effectuated in his courtroom for many years. Two of the violations of the right to be heard stemmed from petitioner's policy that an incarcerated litigant would not be produced for a proceeding unless he or she specifically asked to be produced. This unwritten rule, neither printed on a summons nor communicated to any facility, imposed an onerous and unfair burden on litigants who had no way of knowing what was required of them. Litigants who had previously been incarcerated and produced for matters before other judges were even more disadvantaged by petitioner's anomalous policy. Instead of taking steps to ease their burden, petitioner, in Constantino and DaCorsi, actually increased it by refusing, under the guise of not having "actual notice" of each litigant's incarceration, to acknowledge attempts to contact the court by family members and litigants themselves. Petitioner's view, however, was that even his own knowledge of a litigant's incarceration would not have excused failure to comply with the strictures he imposed. As the Commission concluded, such a policy impermissibly "elevated form over substance where liberty and parental rights hung in the balance."
Petitioner's institution of this longstanding policy resulted in gross and repeated deprivation of the fundamental right to be heard, and had grave consequences for litigants. [*9]This policy, along with petitioner's unwavering imposition of a two-week time limit on requests for counsel, evidences a "pattern of injudicious behavior" that this Court cannot sustain (see Matter of VonderHeide 72 NY2d at 660). Also significant is petitioner's response to the Appellate Division's three grants of writs of habeas corpus in DeMagistris, Constantino and Foote (see People ex rel. Constantino v Lorey 28 AD3d 1041 [2006]; People ex rel Foote v Lorey, 28 AD3d 917 [3d Dept 2006]; Matter of Hohenforst v DeMagistris, 44 AD3d 1114 [3d Dept 2007]). After these reversals, petitioner chose to modify his first policy by increasing notifications, yet continuing to place the burden of production in court on incarcerated litigants. With regard to his second policy, he publicly stated his intent to discontinue confirmation hearings — the proceeding where Smith and Foote invoked their right to counsel — and issue written confirmations instead (see Press Release of April 26, 2007).
Plainly, even the Appellate Division precedents failed to impress the importance of these due process rights upon petitioner in any meaningful way. As in Matter of Reeves, these "errors were fundamental and the pattern of repeating them, coupled with an unwillingness to recognize their impropriety, indicate that petitioner poses a threat to the proper administration of justice" (63 NY2d at 110-111).
It is apparent from the record as a whole that petitioner continues to believe that his actions were a permissible exercise of the "wide discretion" given Family Court judges "for dealing with the complexities of family life" (Family Court Act § 141). He fails to grasp that with such discretion comes grave responsibilities to the litigants before him as well as to their children. While we recognize that petitioner has well served youth in his court and through his extensive involvement in community service, part and parcel of effecting the "best interests" of a child is affording that child's parent the rights inherent in the parental bond. We acknowledge that removal from office is an "extreme sanction" that is imposed only "in the event of truly egregious circumstances" (Matter of Cunningham v Comm. on Judicial Conduct, 57 NY2d 270, 275 [1982]). We conclude that petitioner's steadfast adherence to longstanding [*10]policies that have seriously compromised the due process rights of litigants justifies removal.
Accordingly, the determined sanction should be accepted, without costs, and David F. Jung removed from the office of Judge of the Family Court, Fulton County.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and David F. Jung removed from the office of Judge of the Family Court, Fulton County. Opinion Per Curiam. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided October 28, 2008
Footnotes
Footnote 1: Charges IV and V also alleged violations of Section 100.3 (B)(3) of the Rules of Judicial Conduct.
Failed to Protect Parents' Rights, Ruling Says
The New York Law Journal by Joel Stashenko - October 29, 2008
ALBANY - An upstate Family Court judge has been removed from the bench for putting "onerous and unfair" barriers in the way of some parties appearing personally in his court. The Court of Appeals yesterday in In the Matter of David F. Jung, 150, unanimously upheld the removal recommendation against Family Court Judge David F. Jung of Fulton County made earlier this year by the Commission on Judicial Conduct. Judge Jung, an attorney, was elected to the Family Court bench in 1992 and also has served as an acting Supreme Court justice. The decision appears on page 28 of the print edition of today's Law Journal. The Court held that Judge Jung appeared to mistakenly believe his actions were excused by the discretion given judges under the Family Court Act "for dealing with the complexities of family life." "He fails to grasp that with such discretion comes grave responsibilities to the litigants before him as well as to their children," the Court ruled in a per curiam decision. "While we recognize that petitioner has well served youth in his court and through his extensive involvement in community service, part and parcel of effecting the 'best interests' of a child is affording that child's parent the rights inherent in the parental bond."
The Court cited five instances of misconduct, which also formed the basis of the Commission on Judicial Conduct's unanimous removal recommendation against Judge Jung (NYLJ, Feb. 20). One case involved Karrie Foote, a learning disabled and illiterate woman who was held in contempt for failing to appear before a support magistrate in a custody case in May 2005. When she appeared before Judge Jung and requested counsel, he told her it was "too late" and "double too late" for representation. He sentenced her to 180 days in the county jail based on the support magistrate's contempt holding, according to yesterday's ruling. Ms. Foote was released nearly two months later under a writ of habeas corpus by a Supreme Court justice. An Appellate Division, Third Department, panel in People ex rel Foote v. Lorey, 28 AD3d 917 (2006), affirmed the writ. In response to the Third Department ruling, Judge Jung issued a press release defending his policies and expressing "disappointment" at the decision. He said he would begin confirming support magistrates' rulings in writing instead of having defendants appear in person.
In three other cases cited by the Court yesterday, people were not allowed to appear before Judge Jung in cases in which they were parties because they were incarcerated on unrelated charges. In all three cases, Judge Jung sentenced defendants in absentia to jail terms of at least 180 days and revoked their custody rights to their children, according to the Court. The cases represented impermissible breaches of litigants' basic rights that judges should be safeguarding, the Court determined yesterday. It suggested that the lapses were more egregious because Third Department panels granted writs of habeas corpus to three parties jailed by Judge Jung. "Plainly, even the Appellate Division precedents failed to impress the importance of these due process rights upon petitioner in any meaningful way," the Court held yesterday. Removal from the bench will prohibit Judge Jung from holding judicial office again in New York state. His case was the 66th in which the Court has accepted a removal recommendation from the conduct commission. In nine other cases, the Court reduced removal recommendations to censures and in two others, increased the recommended punishment of censure to removal.
Judge Jung's attorney, Vincent Capasso Jr. of Capasso & Massaroni in Schenectady, said in a statement yesterday that his client had served "honorably and admirably" as a judge. "Although we are understandably disappointed with the Court's decision, we accept its determination and will move forward," Mr. Capasso said. Edward Lindner of the conduct commission argued for the agency before the Court. Robert Tembeckjian, the commission's administrator, said Judge Jung's policy was "basically not to ensure the presence of people whose rights were to be affected. That was the egregious nature of the conduct." The Fulton County Bar Association filed an amicus curiae in the case arguing that Judge Jung, who had an otherwise unblemished record and who did not profit personally from his misconduct, should not be removed from the bench. "Judge Jung has shown courage, fairness and independence on the bench, and has treated attorneys and litigants who appeared before him with respect and dignity," Anthony Casale of Schur & Casale in Mayfield wrote on behalf of the bar group. Joel.Stashenko@incisivemedia.com
Here's the NYS Court of Appeals Ruling:
Decided on October 28, 2008
No. 150 In the Matter of the Honorable
[*1]David F. Jung, a Judge of the Family Court, Fulton County. Petitioner, For Review of a Determination of State Commission on Judicial Conduct Respondent.
Vincent Capasso, Jr., for petitioner.
Edward Lindner, for respondent.
Fulton County Bar Association, amicus curiae.
PER CURIAM:
Petitioner, a Judge of the Family Court, Fulton County, commenced this proceeding to review a determination of the State Commission on Judicial Conduct that sustained five charges of misconduct against him and imposed the sanction of removal from judicial office. Upon our plenary review of the record, we accept the determined sanction.
After serving as a law guardian for more than a decade, in 1989 petitioner was elected to the Fulton County Family Court and in 1992 he was appointed to serve as an Acting [*2]Supreme Court Justice. In 2005, petitioner presided over a series of Family Court cases that form the basis of the Commission's findings. By formal complaint dated December 6, 2006, the Commission served him with five charges. Charges I, II and III alleged violations of litigants' right to be heard and of Sections 100.1, 100.2 (A), and 100.3 (B)(1) and (6), of the Rules of Judicial Conduct. Charges I, IV and V alleged violations of litigants' right to counsel and violations of the same sections.[FN1]
On April 19, 2007, petitioner, his counsel and Commission counsel entered into a stipulation of facts. A hearing was held on April 26, 2007, and the Referee accepted the stipulation into evidence. Petitioner testified, called two witnesses to testify on his behalf, and submitted additional affidavits attesting to his character. On September 7, 2007, the Referee sustained all five charges based on petitioner's violation of litigants' rights when he entered defaults and sentenced them, in absentia, to jail. The Commission unanimously sustained all charges, concluding that petitioner violated the cited sections of the Rules of Judicial Conduct, and imposed the sanction of removal, noting that as a consequence of petitioner's disregard of fundamental rights, five litigants were sentenced to significant terms of incarceration and at least three served several months in jail on the unlawful sentences he imposed.
I. Factual Findings
DeMagistris
Charge I alleged that while presiding over the case of Wendy Lynn Hohenforst v Thomas DeMagistris, petitioner violated the defendant's due process rights, including the right to be heard and the right to counsel, when he summarily held DeMagistris in default on two family offense petitions and sentenced him in absentia to two consecutive 180-day terms of incarceration notwithstanding that defendant was being held in a courthouse holding cell throughout the proceeding.
Outside of the courtroom prior to a family offense proceeding before petitioner, DeMagistris verbally assaulted counsel for his children's mother, Hohenforst, and was placed in a Family Court holding cell. Petitioner thereafter convened a proceeding in the courtroom and placed on the record a description of the incident, stating that DeMagistris was not in the courtroom because he had been placed under arrest for "criminal behavior" and had thus waived his right to appear. Subsequently, petitioner dismissed counsel for both parties upon their own motions without inquiry as to whether DeMagistris had notice of his counsel's request. Upon excusing counsel for the mother, petitioner asked if she wanted an adjournment, which she declined. Following an inquest, petitioner granted the relief she requested, including divesting [*3]DeMagistris of custody of his children, dismissed defendant's cross-motion for failure to prosecute, and sentenced defendant to a year of incarceration. Petitioner directed that DeMagistris be served with the orders if he was still in the holding cell.
DeMagistris was released by Supreme Court's grant of a writ of habeas corpus, affirmed by the Appellate Division (see Matter of Hohenforst v DeMagistris, 44 AD3d 1114 [3d Dept 2007]).
Constantino
Charge II alleged that in Fulton County Department of Social Services v Angelic Constantino, petitioner violated Constantino's due process rights when he failed to order her produced in court although he knew she was incarcerated in a correctional facility outside the county, summarily found her in default, sentenced her in absentia to six months incarceration, and revoked her custodial rights.
At the time, petitioner's longstanding policy was that "incarcerated litigants had to request of the court to be produced by the court." After unsuccessful attempts to contact petitioner's court, Constantino, incarcerated in another county, failed to appear for an April 11, 2005 hearing before petitioner on a custody petition and an allegation that she had violated an order of protection. Although petitioner knew that the Fulton County Department of Social Services had served Ms. Constantino with the petition in Schenectady County jail, and acknowledged having been told by counsel for the father's parents that Constantino was in jail, petitioner denied that he had actual knowledge that she was in jail, as he considered counsel's statement hearsay. He later maintained that if Constantino "has a normal IQ and she didn't know how to ask [for an order to produce] . . . it's her responsibility to find out." He stated, further, that although the summons did not alert her to his policy, she was obligated to find out by "word of mouth." On April 12, 2005, Constantino called the court from jail and asked why she had not been produced. Court staff informed her of petitioner's policy and advised her to put her concerns in writing, which she did with the assistance of attorney in a letter dated April 15, 2005. Her attorney was told that as "no request was received from Angelic Constantino and the court was in receipt of an affidavit of service," the matter had proceeded upon default.
Constantino was released by Supreme Court's grant of a writ of habeas corpus, affirmed by the Appellate Division (see The People of the State of New York ex rel Angelic Constantino v Lorey, 28 AD3d 1041 [3d Dept 2006]).
DaCorsi
Charge III alleged that in Matter of Julie A. Dacre v Dennis A. DaCorsi, petitioner violated DaCorsi's due process rights when, knowing that DaCorsi was incarcerated and unable to appear, he found him in default and sentenced him to nine months in jail.
DaCorsi was due to appear before petitioner on a custody petition on April 28, 2005. According to petitioner's docket sheet, DaCorsi's sister called on April 27, 2005 and [*4]informed the court that her brother had been arrested but was due to appear in Family Court the following day. A clerk told her that either the sheriff or DaCorsi himself would have to contact the court and ask that he be produced. Petitioner was informed (although the actual date is in dispute) that someone claiming to be DaCorsi's sister had called, but testified that he had "no idea if it was his sister" and if it was that she "could have gone over to the jail with a piece of paper to sign and she could have delivered it to the court and I would have produced him." Petitioner explained that, in any event, he did not consider the sister's call a request to produce.
Petitioner held DaCorsi in default, and after an inquest DaCorsi lost custody of his children and was sentenced in absentia to consecutive terms of 90 days and 180 days incarceration. On June 26, 2006, petitioner granted DaCorsi's motion to vacate the default judgment and for petitioner's disqualification.
Smith
Charge IV maintained that in Matter of Dale A. Rulison v Nickie L. Smith, petitioner violated Smith's right to counsel when he denied her request for assigned counsel as late, summarily affirmed a magistrate's order that found her in default when she failed to appear for a hearing on a child support matter, and sentenced her to 90 days in jail.
It was petitioner's policy that a litigant seeking assigned counsel in a family offense proceeding had to apply for a public defender within two weeks of initial appearance, regardless of the date of the hearing. On January 12, 2005, Smith appeared before a support magistrate to answer charges that she had violated an order of support. She requested counsel and was given an application for the public defender, and the matter was adjourned until April 27, 2005. On February 8, 2005, Smith submitted an application for representation by a public defender in the child support matter. Petitioner said the application was late and on February 14, 2005 denied it as untimely. On February 14, 2005, Smith also submitted an application for representation in a custody and visitation matter. Petitioner approved that application on February 18, 2005.
On April 27, 2005, Smith failed to appear for the support hearing and the magistrate declared her in default and recommended that she be held in contempt. On May 18, 2005, Smith appeared before petitioner for a confirmation proceeding. Petitioner later explained that the confirmation hearing was "merely [for the judge] to approve what the support magistrate did. . . . Or the judge may, and I emphasize may, conduct an evidentiary hearing, which is not what we were doing in this case." When Smith attempted to defend herself against the petition, petitioner said "I don't see any objections filed here," confirmed the magistrate's determination and sentenced Smith to jail. Smith said she had sought representation from the public defender and never heard anything; petitioner responded "you'll have to take it up with the public defender's office." Petitioner testified that he did not see, upon reviewing her file, that Smith had been assigned counsel on the custody matter and that he did not attempt to find out if any court [*5]attorneys were present at the courthouse that day.
Smith did not appeal or move to vacate petitioner's decision, and was released from jail after paying a "purge."
Foote
Charge V alleged that in Matter of Timothy Foote v Karrie Foote, petitioner violated Karrie Foote's due process rights when, despite evidence that she was learning-disabled and unable to read, he denied her the right to counsel, summarily affirmed the magistrate's finding of default and sentenced her to 180 days in jail.
Foote appeared before a support magistrate on January 20, 2005, on charges of contempt of court for willful violation of an order of support. She told the magistrate that she could not read and did not have a lawyer. The magistrate told her she could apply for a public defender and adjourned the matter until May 11, 2005. Foote obtained an application but never filed it. On April 4, 2005, she appeared before petitioner on a custody modification petition. Petitioner advised Foote of her right to an attorney and instructed her to fill out an application. The parties met with a court mediator, resolved their custody dispute and returned to petitioner's courtroom for confirmation.
Foote believed that this custody settlement resolved the support matter, and failed to appear before the support magistrate on May 11, 2005. The magistrate declared her in default and recommended that she be held in contempt. On May 25, 2005, Foote appeared, without counsel, at a confirmation proceeding in front of petitioner, and told petitioner she had requested a lawyer. Petitioner responded that it was "too late," later explaining that he meant it was "a double too late" "too late . . . with me and too late . . . with the magistrate."
Petitioner maintained that he could not have sent the Foote matter back to the support magistrate or taken steps to obtain counsel for her because he would have violated a Uniform Rule providing that a litigant is entitled to only one adjournment absent good cause, and he did not find good cause. He confirmed the decision and told Foote he was going to incarcerate her. Foote's mother addressed the court, explaining that Foote couldn't read and that she herself had not had time to read the papers or explain them to her daughter. She stated:
"I told Kerrie that she needs to ask for a lawyer. She needs to be represented by a lawyer. I don't understand how these procedures can go on without her having some kind of representation. Especially when she doesn't even read. . . . She has a fourth grade reading level."
Petitioner responded:
"[Y]ou're telling me that. That doesn't make it a fact. But if we had some medical proof that was so, if she had told somebody that, I, I'm not the magistrate, so I didn't hear the case." [*6]
Petitioner signed an order committing Foote to the Fulton County Jail. He later acknowledged that Foote herself told the support magistrate she could not read and that he had "noted that" in his review of the record. He also recalled her mother saying "that she had the ability of a fourth grade reader, which is a pretty good ability."
Foote was released by Supreme Court's grant of a writ of habeas corpus nearly two months later. The Appellate Division affirmed (see People ex rel Foote v Lorey, 28 AD3d 917 [3d Dept 2006]).
After the Appellate Division's Foote decision, petitioner issued a press release defending his policies and expressing "disappointment" at the determination. Petitioner additionally stated:
"Henceforth, in an effort to further streamline and simplify procedures, since the statute does not specifically require the Court to mandate court appearances of parties so that confirmation of the Support Magistrate's decision can be made in person, the Court will simply issue a written confirmation unless the Court finds that the Support Magistrate erred in some fashion."
. . . .
"If, at some point, the Appellate Division . . . re-considers this issue and reverses itself as it has done in the past, or that if the Court of Appeals rules in favor of our prior policy and procedure, we can and will reinstate same."
During the Commission's investigation, petitioner testified that he wouldn't have handled any of the cases any differently.
II. Analysis
At issue here is petitioner's denial of due process to litigants in family offense — specifically custody and support — proceedings. DeMagistris, Constantino and DaCorsi involved denial of the right to be heard; DeMagistris, Smith and Foote the right to counsel.
The right to be heard is fundamental to our system of justice (see Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]; Jones v Berman, 37 NY2d 42, 55 [1975]). Parents have an equally fundamental interest in the liberty, care and control of their children (see Stanley v Illinois, 405 US 645, 651 [1972]; Matter of Ella B., 30 NY2d 352, 356 [1972]). The right to be heard, therefore, necessarily attaches to family offense proceedings, regardless of a party's status as incarcerated or otherwise detained pursuant to state authority (see Matter of Tristram K., 25 AD3d 222, 226 [1st Dept 2005]["[e]ven an incarcerated parent has a right to be heard on matters concerning [her] child, where there is neither a willful refusal to appear nor a waiver of appearance"]). This right is no less vital to a [*7]proceeding for summary contempt (see Katz v Murdoch, 28 NY2d 234, 238 [1971][a person subject to incarceration for contempt is entitled to an opportunity to appear and "to offer any reason in law or fact why that judgment should not be pronounced"]; see Matter of Mosso v Mosso, 6 AD3d 827, 829 [3d Dept 2004] ["due process requires that . . . the contemnor be afforded 'an opportunity to be heard at a meaningful time and in a meaningful manner'"]; see also Family Court Act § 454 (1), (3) [providing for incarceration "after hearing" on a willful violation of an order of support]).
Integral to this fundamental interest in the liberty, care and control of their children, and coextensive with the right to be heard in a meaningful manner, is a parent's right to representation of counsel in family offense proceedings. "[A]n indigent parent, faced with the loss of a child's society, as well as the possibility of criminal charges, . . . is entitled to the assistance of counsel" (Ella B., 30 NY2d at 356 [codified in 1975 and extended to provide litigants with the right to counsel in custody, family offense and contempt proceedings (see Family Court Act §§ 261, 262 [v], [vii])]). The right to counsel includes the right to notice prior to a court-ordered withdrawal from representation (CPLR 321 [b][2]; In re Kindra B., 296 AD2d 456, 458 [2d Dept 2002]). Waiver of this right must be "unequivocal, voluntary and intelligent;" a court is obligated to make a "searching inquiry" to ensure that it is (see People v Smith, 92 NY2d 516, 520 [1998]).
At most, petitioner would now concede that his denial of these rights to litigants amounted to legal error and not misconduct. As we have previously explained, the two are not necessarily mutually exclusive; a pattern of fundamental legal error may be "serious misconduct" (Matter of Reeves, 63 NY2d 105, 109 [1984]); see Sardino v State Com'n on Judicial Conduct, 58 NY2d 286, 289 [1983]; see McGee v State Com'n on Judicial Conduct, 59 NY2d 870, 871 [1983]). Moreover, the Court agrees with the Commission that in denying litigants these rights, petitioner also violated the Rules of Judicial Conduct.
Although judicial disciplinary proceedings are not punishment (Matter of Esworthy, 77 NY2d 280, 283 [1991]), the severe sanction of removal is warranted where a jurist has exhibited a "pattern of injudicious behavior . . . which cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d 658, 660 [1988]) or an abuse of "the power of his office in a manner that . . . has irredeemably damaged public confidence in the integrity of his court" (Matter [*8]of McGee, 59 NY2d 870, 871 [1983]). Such behavior is especially "intolerable" in Family Court, "where matters of the utmost sensitivity are often litigated by those who are unrepresented and unaware of their rights" (Matter of Esworthy, 77 NY2d at 283). Removal is thus appropriate when a Family Court judge exhibits conduct "which necessarily has the effect of leaving litigants with the impression that our judicial system is unfair and unjust" (id. [among other misconduct, "[i]n case after case" judge "neglected to inform litigants appearing before him of their constitutional and statutory rights, including their right to counsel"]).
Here, in four out of five cases, the due process violations at issue resulted from two policies that petitioner effectuated in his courtroom for many years. Two of the violations of the right to be heard stemmed from petitioner's policy that an incarcerated litigant would not be produced for a proceeding unless he or she specifically asked to be produced. This unwritten rule, neither printed on a summons nor communicated to any facility, imposed an onerous and unfair burden on litigants who had no way of knowing what was required of them. Litigants who had previously been incarcerated and produced for matters before other judges were even more disadvantaged by petitioner's anomalous policy. Instead of taking steps to ease their burden, petitioner, in Constantino and DaCorsi, actually increased it by refusing, under the guise of not having "actual notice" of each litigant's incarceration, to acknowledge attempts to contact the court by family members and litigants themselves. Petitioner's view, however, was that even his own knowledge of a litigant's incarceration would not have excused failure to comply with the strictures he imposed. As the Commission concluded, such a policy impermissibly "elevated form over substance where liberty and parental rights hung in the balance."
Petitioner's institution of this longstanding policy resulted in gross and repeated deprivation of the fundamental right to be heard, and had grave consequences for litigants. [*9]This policy, along with petitioner's unwavering imposition of a two-week time limit on requests for counsel, evidences a "pattern of injudicious behavior" that this Court cannot sustain (see Matter of VonderHeide 72 NY2d at 660). Also significant is petitioner's response to the Appellate Division's three grants of writs of habeas corpus in DeMagistris, Constantino and Foote (see People ex rel. Constantino v Lorey 28 AD3d 1041 [2006]; People ex rel Foote v Lorey, 28 AD3d 917 [3d Dept 2006]; Matter of Hohenforst v DeMagistris, 44 AD3d 1114 [3d Dept 2007]). After these reversals, petitioner chose to modify his first policy by increasing notifications, yet continuing to place the burden of production in court on incarcerated litigants. With regard to his second policy, he publicly stated his intent to discontinue confirmation hearings — the proceeding where Smith and Foote invoked their right to counsel — and issue written confirmations instead (see Press Release of April 26, 2007).
Plainly, even the Appellate Division precedents failed to impress the importance of these due process rights upon petitioner in any meaningful way. As in Matter of Reeves, these "errors were fundamental and the pattern of repeating them, coupled with an unwillingness to recognize their impropriety, indicate that petitioner poses a threat to the proper administration of justice" (63 NY2d at 110-111).
It is apparent from the record as a whole that petitioner continues to believe that his actions were a permissible exercise of the "wide discretion" given Family Court judges "for dealing with the complexities of family life" (Family Court Act § 141). He fails to grasp that with such discretion comes grave responsibilities to the litigants before him as well as to their children. While we recognize that petitioner has well served youth in his court and through his extensive involvement in community service, part and parcel of effecting the "best interests" of a child is affording that child's parent the rights inherent in the parental bond. We acknowledge that removal from office is an "extreme sanction" that is imposed only "in the event of truly egregious circumstances" (Matter of Cunningham v Comm. on Judicial Conduct, 57 NY2d 270, 275 [1982]). We conclude that petitioner's steadfast adherence to longstanding [*10]policies that have seriously compromised the due process rights of litigants justifies removal.
Accordingly, the determined sanction should be accepted, without costs, and David F. Jung removed from the office of Judge of the Family Court, Fulton County.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and David F. Jung removed from the office of Judge of the Family Court, Fulton County. Opinion Per Curiam. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided October 28, 2008
Footnotes
Footnote 1: Charges IV and V also alleged violations of Section 100.3 (B)(3) of the Rules of Judicial Conduct.
Attorney Targeted in Estate Charity Scheme
CHARITY BEGINS AT HOME FOR $2.2M BOSS
The New York Post by JEANE MacINTOSH - October 27, 2008A charity set up by controversial photographer Robert Mapplethorpe has paid off handsomely for its largest beneficiary: the foundation's president. Michael Ward Stout, a Manhattan lawyer who heads the Robert Mapplethorpe Foundation and estate, has raked in $2.2 million from the nonprofit for his firm since 1998 - more than the total $2 million the charity has shelled out in grants in the same period, tax records show. Stout has run the charity since the famed New York lensman - whose sexually erotic and explicit shots sparked massive controversy at exhibits in the 1990s - died of AIDS complications in 1989.
As president, Stout doesn't draw a salary, according to IRS tax forms. However, his Manhattan law firm, Stout & Thomas, collects massive fees from the charity, which is funded by Mapplethorpe's estate. Stout, a longtime friend of Mapplethorpe, was executor of the artist's $200 million-plus estate. The foundation's goals are to help support the arts and to fund AIDS charities and research. Stout's fees first came under scrutiny nearly a decade ago. Oliver Koppel, the state attorney general at the time, questioned the millions Stout drew in fees while the lawyer acted as both Mapplethorpe's executor and the attorney for the foundation. After Koppel's probe, Stout wound up being allowed to draw $3.7 million in executor fees and $1.9 million as the estate lawyer.
Today, Stout says his firm's take from the foundation is "legitimate, as it always has been." The large fees "may look like a lot," he said, because they represent work for both the charity arm and the estate, under the 2003 move that combined the two entities as one nonprofit. "The charity does not have a lot of liquid assets," said Stout, so it doesn't make large cash payouts. Stout said his fees largely reflect what his firm draws to run the estate, which includes 14 galleries. "The majority of our fees are related to running the estate business, not the nonprofit," he said. "Unfortunately, there is no way to show that breakdown on the 990s [IRS tax forms]." jeane.macintosh@nypost.com
Tuesday, October 28, 2008
National Crisis: Complete Judicial Meltdown
Federal Courts’ Bad Apples Prompt Look at Orchard
Spate of disciplinary cases unlikely to erode federal judiciary's prerogative to judge itself.
Miller-McCune LEGAL AFFAIRS by Meghan Gordon - October 24, 2008
The judicial misconduct case closest to the ultimate punishment for the lifetime appointees — impeachment — is that of U.S. District Judge Thomas Porteous of New Orleans, a target of at least six years of scrutiny for his actions in a personal bankruptcy and for accepting gifts from lawyers who practiced before him. A panel of the nation's top judges, presided over by Chief Justice John Roberts, found substantial evidence that Porteous repeatedly perjured himself in his bankruptcy, lied on financial disclosures and deprived litigants from knowing that he was accepting thousands of dollars in cash and other gifts from lawyers trying cases in his court. Porteous and his wife, Carmella, used the fake names, "G.T. and C.A. Ortous" to file bankruptcy, hoping to avoid public scrutiny that would come with their names appearing in a list of recent filings. According to a 5th Circuit panel that investigated his case, Porteous came to the bankruptcy with $66,000 in gambling debts and continued to bet without disclosing the new debt in court proceedings. He begged lawyer friends for help, even as three of them were trying a civil case in his division. They chipped in for his son's wedding and paid his airfare and hotel room to attend his son's bachelor party in Las Vegas.
In the 12 months ending Sept. 30, 2007, for example, some 841 complaints were filed, of which 752 were concluded by year end. Of the 404 considered by chief judges, 392 were dismissed for being not in conformity with statute, not directly related to a ruling or frivolous; three were marked "appropriate action already taken"; six were marked "action no longer necessary because of intervening events"; and three were withdrawn by the complainant. Of the 348 considered by judicial councils, 344 were dismissed, two were withdrawn and two were marked "ordered other appropriate action." Five cases out of the 841 complaints were sent to a special investigating committee to review. Most of the scant complaints determined to be legitimate remain under seal while chief judges mete out punishments such as reprimands and suspensions. "You have to balance out the public's need to know with the privacy concerns of a particular judge or just the judicial system," Tobias said. Northwestern University law professor James Pfander said that even the whisper of alleged judicial misconduct would inflict enormous injury to a judge's reputation. Yet such secrecy, no matter how integral it is to the judiciary's ability to act independently, will always make it difficult for the public to judge for itself whether the court system sets a rigorous ethical standard for those who rule its benches. "We try to throw up some kind of shield to protect judges from scurrilous complaints," Pfander said. "It's important for the system not only to do the right thing but to be seen doing the right thing." In building a system for processing judicial complaints, the courts had no constitutional guidance.
"Impeachment was the only method that they explicitly thought about as a method of controlling bad judges," Geyh said, adding that it's an extremely cumbersome solution. In 2004, Chief Justice William Rehnquist created a panel led by Justice Stephen Breyer to investigate how the courts were handling ethical complaints against its judges, acknowledging the sharp criticism coming out of Congress. "He felt that there was a need to strengthen the requirements, and that maybe the public was losing trust in the judiciary," Tobias said. The commission's study, released in 2006, found that the system appropriately handled the vast majority of complaints. "While a perfectly operating system remains the goal, the Committee recognizes that no human system operates perfectly; some error is inevitable," the report said. "And the Committee is unanimous in its view that a processing error rate of 2% to 3% does not demonstrat e a serious flaw in the operation of the system - given the number of complaints filed, their occasional lack of clarity, and the judgmental nature of the decision as to whether further inquiry is required." When the panel examined "high-visibility" cases, however, it found that of 17 serious allegations that received media attention, five were mishandled — a 30 percent error rate.
Spate of disciplinary cases unlikely to erode federal judiciary's prerogative to judge itself.
Miller-McCune LEGAL AFFAIRS by Meghan Gordon - October 24, 2008
One federal judge is staring down impeachment; another presides over his bench despite a criminal indictment on sex charges. Two other robed public servants stood accused of ethical and criminal breaches this year. As the federal judiciary faces one of its heaviest discipline caseloads in some time, do the extreme examples of misconduct reveal a system that can find and weed out its bad actors, or do they just further erode trust in the federal courts?
The judicial misconduct case closest to the ultimate punishment for the lifetime appointees — impeachment — is that of U.S. District Judge Thomas Porteous of New Orleans, a target of at least six years of scrutiny for his actions in a personal bankruptcy and for accepting gifts from lawyers who practiced before him. A panel of the nation's top judges, presided over by Chief Justice John Roberts, found substantial evidence that Porteous repeatedly perjured himself in his bankruptcy, lied on financial disclosures and deprived litigants from knowing that he was accepting thousands of dollars in cash and other gifts from lawyers trying cases in his court. Porteous and his wife, Carmella, used the fake names, "G.T. and C.A. Ortous" to file bankruptcy, hoping to avoid public scrutiny that would come with their names appearing in a list of recent filings. According to a 5th Circuit panel that investigated his case, Porteous came to the bankruptcy with $66,000 in gambling debts and continued to bet without disclosing the new debt in court proceedings. He begged lawyer friends for help, even as three of them were trying a civil case in his division. They chipped in for his son's wedding and paid his airfare and hotel room to attend his son's bachelor party in Las Vegas.
A House Judiciary Committee task force now awaits an investigator's report on the case before deciding whether to advance it closer to an impeachment vote in the full House and a later trial in the Senate. If the case travels the entire journey without his resignation, Porteous would be the first federal judge stripped of his lifetime appointment in two decades and only the 12th in the nation's history. Law scholars say it's possible that going through the extremely rare impeachment process could prop up the public's perception of the judiciary and its ability to police itself, to the extent that the case draws any attention amid the change in administration and the global financial meltdown. While the misconduct investigation took an extremely slow path to Congress, it's only there because of intervention from leadership within the federal courts, in particular the chief judge of the 5th Circuit Court of Appeals. "For people who followed it closely, I think it's fair to say that the 5th Circuit has been pretty vigorous in pursuing this matter," said Carl Tobias of the University of Richmond School of Law. "If the public is concerned that the judiciary can't police itself, this is a pretty good example that it can."
Other recent cases include Judge Samuel Kent of Houston, who pleaded not guilty in September to two counts of abusive sexual contact and one count of attempted aggravated sexual abuse of a court employee; Judge Edward Nottingham of Denver, who resigned Oct. 21 after undergoing four investigations in two years for, among other things, appearing on the client list of a prostitution ring; and Judge Alex Kozinski of San Francisco, who was embroiled in an ethics controversy that questioned whether he could fairly preside over an obscenity case given his own postings of graphic images to his personal Web site. Law professor Charles Geyh of Indiana University said the judiciary must be able to show that it has mechanisms in place to hold bad judges accountable, and the Porteous case serves as an extreme example of that oversight. "We give judges a lot of independence, and judges catch hell for having that independence," said Geyh, who has advised the House Judiciary Committee and was an expert witness on the National Commission on Judicial Impeachments. "They're told, ‘You're a rogue judge. You're an activist judge.' "If what we tell people is we need an independent judiciary so the judges can do their best to follow the rule of law without intimidation, we need to be able to say, ‘But if the judge is corrupt, the judge will be removed and punished.'"
Judicial discipline expert Arthur Hellman of the University of Pittsburgh said this year's cluster of bad judge storylines likely won't catch the attention of even the most informed citizens, and therefore won't have much of an impact on the public perception of the judiciary. "It's still a tiny number of judges, and it's mostly happenstance," he said. (There are 875 judges appointed to lifetime terms in the federal courts, which include the nine on the Supreme Court, 179 on courts of appeals, 678 in district courts and nine on the Court of International Trade.) Lesser cases of misconduct present a murkier picture of the judiciary's discipline record. About 700 complaints roll in each year. If a fraction of losing litigants vent their frustration by blaming the judge, that creates quite a pool of misconduct complaints that are easily dismissed as frivolous. All but a sliver of complaints are reviewed confidentially and thrown out.
In the 12 months ending Sept. 30, 2007, for example, some 841 complaints were filed, of which 752 were concluded by year end. Of the 404 considered by chief judges, 392 were dismissed for being not in conformity with statute, not directly related to a ruling or frivolous; three were marked "appropriate action already taken"; six were marked "action no longer necessary because of intervening events"; and three were withdrawn by the complainant. Of the 348 considered by judicial councils, 344 were dismissed, two were withdrawn and two were marked "ordered other appropriate action." Five cases out of the 841 complaints were sent to a special investigating committee to review. Most of the scant complaints determined to be legitimate remain under seal while chief judges mete out punishments such as reprimands and suspensions. "You have to balance out the public's need to know with the privacy concerns of a particular judge or just the judicial system," Tobias said. Northwestern University law professor James Pfander said that even the whisper of alleged judicial misconduct would inflict enormous injury to a judge's reputation. Yet such secrecy, no matter how integral it is to the judiciary's ability to act independently, will always make it difficult for the public to judge for itself whether the court system sets a rigorous ethical standard for those who rule its benches. "We try to throw up some kind of shield to protect judges from scurrilous complaints," Pfander said. "It's important for the system not only to do the right thing but to be seen doing the right thing." In building a system for processing judicial complaints, the courts had no constitutional guidance.
The framers paid little attention to judicial discipline except to lump it in with "all civil officers of the United States" in a clause in Article II created to address misbehaving executives who "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." Article III then calls for "one supreme Court" and permits Congress to "from time to time ordain and establish" lower courts that "shall hold their Offices during good Behavior." Trapped in a sweltering room in Philadelphia for three months, Geyh said, the framers didn't devote time to considering how to hold judges accountable, instead focusing their impeachment discussion almost entirely on its power to keep the executive branch in check.
"Impeachment was the only method that they explicitly thought about as a method of controlling bad judges," Geyh said, adding that it's an extremely cumbersome solution. In 2004, Chief Justice William Rehnquist created a panel led by Justice Stephen Breyer to investigate how the courts were handling ethical complaints against its judges, acknowledging the sharp criticism coming out of Congress. "He felt that there was a need to strengthen the requirements, and that maybe the public was losing trust in the judiciary," Tobias said. The commission's study, released in 2006, found that the system appropriately handled the vast majority of complaints. "While a perfectly operating system remains the goal, the Committee recognizes that no human system operates perfectly; some error is inevitable," the report said. "And the Committee is unanimous in its view that a processing error rate of 2% to 3% does not demonstrat e a serious flaw in the operation of the system - given the number of complaints filed, their occasional lack of clarity, and the judgmental nature of the decision as to whether further inquiry is required." When the panel examined "high-visibility" cases, however, it found that of 17 serious allegations that received media attention, five were mishandled — a 30 percent error rate.
In one example, the committee found that a chief judge "inadequately investigated and improperly dismissed" a complaint about a district judge's interference in a bankruptcy case. In 2000, U.S. District Judge Manuel Real of the 9th Circuit tried to help a probationer in his court by seizing her bankruptcy case from another judge's docket, allowing Real to halt her eviction and prevent her landlords from collecting rent. A complaint went nowhere. Six years later, the case appeared in the Breyer report, and Real became the subject of testimony in the House Judiciary Committee. He was eventually issued a public reprimand. The report reiterated that it saw no "problem-riddled ‘iceberg' lurking below the ‘high-visibility' surface" but acknowledged that the public would likely use those 17 cases to draw conclusions about how the system reviewed all complaints. "That's a pretty high error rate," Pfander said. "There may be a kind of a fox-guarding-the-henhouse reality that creeps into the review. If that's true, then there needs to be a harder look taken at this system."
In response to the report, the Judicial Conference of the United States drafted a new ethical code that it approved in March. Circuit courts adopted the rules in April, making it far too soon to weigh its effectiveness, law scholars say.Hellman predicts leaders of the judiciary will revisit the new rules in about three years, by which time they will find the need for further revisions. For instance, none of the rules to date spell out how to handle allegations against the chief judge of a circuit, as happened in the recent California case, and whether that chief judge should continue to review unrelated misconduct allegations. Even the name given to the top ethics review panel — the Committee on Codes of Conduct — shows how ploddingly the court handles ethical matters. "They can't even bring themselves to say, ‘misconduct,'" Hellman said. "It's amusing in a way, but it's also a telling point about how reluctant the judiciary sometimes seems to be to acknowledge that there is occasional misconduct, there are allegations of misconduct and they need to be taken seriously."
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