MLK said: "Injustice Anywhere is a Threat to Justice Everywhere"

End Corruption in the Courts!

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Sunday, November 30, 2008

AP: Congressional Committee Investigates Spitzer Case

Congressional Committee Investigates Spitzer Case
The Associated Press by Devlin Barrett - December 1, 2008

A congressional committee is investigating the circumstances that led to the sex scandal causing the downfall of New York Gov. Eliot Spitzer and whether the case was politically motivated. The House Financial Services Committee is seeking to determine whether federal agents misused their expanded powers under the Patriot Act. "We have no concern about Eliot Spitzer. That is not what this is about," Steve Adamske, spokesman for committee Chairman and Massachusetts Democrat Barney Frank, said Tuesday. Spitzer resigned as governor after a February rendezvous with a prostitute at a Washington hotel came to light as part of an investigation by the Internal Revenue Service and other law enforcement agencies. Spitzer was in Washington at the time, ostensibly to testify before part of the Financial Services panel. Now, that committee demands to know how and why the Democratic governor popped up on the radar of criminal investigators. Officials have said a number of unusual money transfers by the governor triggered a "suspicious activity report" within the banking system. Eventually, that report led to a full-blown criminal investigation of Spitzer.

The congressional committee seeks details of the case to the extent that it shows how effective the suspicious activity reports have been in catching terrorists and their financiers, Adamske said. And he said the panel would like to know exactly how the Spitzer case started. "It is a concern that we have that (the law) could be used for political reasons," Adamske said. Several committee members wrote a letter to financial authorities in July seeking specific answers on the Spitzer case, The New York Times reported Tuesday. Spitzer, a married father of three, met a prostitute the day after Valentine's Day in the Mayflower hotel and resigned a month later, ending a promising political career. The committee hopes to hold a hearing next year on what led to the case, though much of its schedule is up in the air, given the uncertainty surrounding the nation's financial crisis and what sort of stimulus efforts the new Congress will try to make as soon as they arrive in January. It could also be a political problem for lawmakers to spend time examining the details of a disgraced politician rather than focusing all their attention on the nation's economic health.

Meanwhile Tuesday, a woman who helped arrange trysts for the escort service that provided Spitzer's prostitute was sentenced to a year of probation for her part in the scandal. Tanya Robin Hollander of Rhinebeck, N.Y., had pleaded guilty on Aug. 25 to a prostitution conspiracy and could have faced up to a year in prison. But Judge Deborah A. Batts took a more lenient view, saying Hollander played a less substantial role than the government had asserted. The judge also factored in a Nov. 6 decision by federal prosecutors not to charge Spitzer. "We are extremely pleased with the judge's view of this case and the sentence she imposed," Hollander lawyer Michael Farkas said. "The judge's view of this case was much more consistent with reality than the government's." Hollander is the first defendant to be sentenced in the case of the Emperors Club VIP, a prostitution ring that arranged sexual encounters for wealthy men around the world for prices as high as $5,500 an hour. The 36-year-old Hollander served as a booking agent, meaning she took phone calls from clients looking for sex and hooked them up with the ring's network of prostitutes. Associated Press writer Adam Goldman in New York contributed to this report.

Expanding Focus on U.S. Senate Judiciary Committee


A national, nonpartisan, nonprofit citizens’ organization, working, pro bono, to protect the public interest in the integrity of our judicial selection and judicial discipline processes. Its mission is to ensure that only the most qualified trial lawyers become, and remain judges.


Dick Morris is right that the Georgia election is a crucial one. But unfortunately he's backing the wrong candidate!

See full page article in New York’s Westchester Guardian 11/27/08 issue: SENATORS CHAMBLISS AND CLINTON VIOLATED FIRST AMENDMENT RIGHTS AND CORRUPTED FEDERAL JUDICIAL SELECTION, See also, sidebar panel on “Elections: Informing the Voters” posting evidence, including videotape.

Georgia voters, casting their vote in next Tuesday’s Senate run-off, must be informed of Senator Chambliss’ misconduct as presiding chairman of the Senate Judiciary Committee’s May 22, 2003 public hearing to confirm President Bush’s federal judicial nominee, at the instigation of Senator Hillary Clinton, in initiating and pursuing a criminal charge against an American citizen for requesting to testify in opposition to that nominee. Such testimony stood to expose the behind-the-scenes deal-making in judgeships by Democratic and Republican Senators alike, corrupting federal judicial selection.

Our national, nonprofit, nonpartisan Center for Judicial Accountability, Inc. (CJA) emailed advance copies of this newsworthy article to Georgia newspapers and to 100 national newspapers across the country, including Associated Press, as well as the Journal News. So far, no response. Why? Because mainstream media suffers from its own conflicts of interest, causing it to protect one political party over another and CJA is charging both parties with abuse of power and betrayal of the public trust.

For that reason, as our Latest News link shows, the Chambliss-Clinton judgeship scandal has the Martin campaign on the sidelines. The problem is the lack of proper press coverage of the true facts we have exposed. The public should demand that challenger Jim Martin, as well as President-Elect Obama, who shortly is expected to formally announce that Senator Clinton will be part of his “first class team” as Secretary of State designate, confront the key question our Westchester Guardian article raises: Should Senators Chambliss and Clinton be held to account for their on-the-job misconduct?

Those who voted for Senator Obama for President want, desperately need, and have a right to expect, CHANGE -- not more “sanctimonious, lying hypocrites” in public office, no matter their party label -- if “justice” here in America is to be more than a distant dream.

Friday, November 28, 2008


State Commission ignores letter offering proof of official misconduct by Judge Lippman and evidence of corruption in their own ranks.

On November 20, William Galison sent this letter to every member of the Judicial Nominating Commission, the state body responsible for selecting the nominees for Chief Judge of New York State. One would expect this would elicit either a threat of libel claims or a demand for evidence, but over the past week, not a peep from a single member of the Commission. Not one member has requested documentation and other evidence offered by Galison, and Judge Lippman remains a nominee for the most powerful position in the Judiciary.

Integrity in the Courts
“To distrust the judiciary marks the beginning of the end of society.” 
- Honoré de Balzac
“Injustice anywhere is a threat to justice everywhere” - Martin Luther King

All Members: State of New York
Commission on Judicial Nomination
1133 Avenue of the Americas
New York, New York 10036-6710                                                    November 20, 2008
FAX (212) 336-2222

Notice of Improprieties and Negligence by Judge Jonathan Lippman and
Apparent Corrupt Influence on a Member of The Judicial Nomination Commission

Synopsis: My organization has compiled overwhelming evidence of Official Misconduct and other improprieties by Judge Jonathan Lippman. Judge Lippman has also ignored and/or abetted systemic corruption in the First Appellate Division, some committed for the benefit of lawyers with intimate ties to a member of the Judicial Nomination Commission, Gerald B. Lefcourt. Judge Lippman’s improprieties must be investigated before he is nominated. Mr. Lefcourt must be removed from the Commission on the basis of the conflict of interest.

Dear CJN Members:

I am a co-founder of the organization “Integrity in the Courts”, a group composed of victims of judicial corruption, who dedicate their time and efforts to exposing and remediating New York State’s notoriously corrupt judiciary. Our members include a six-year veteran Staff Attorney from the First Departmental Disciplinary Committee who was fired for whistle-blowing and has a Federal suit pending against the DDC and the First Appellate Division. We also have affidavits endorsing our efforts from a sitting Supreme Court Judge and a retired Justice of twenty years on the bench.

The Judicial Nomination Commission has been entrusted with the solemn responsibility of choosing nominees for the highest judicial position in the state. The Chief Judge is not only the final arbiter of judicial matters in the State, he is also ultimately accountable for the behavior of every member of the judiciary that serves beneath him, and his ethics set the standards for the entire Judiciary.

Members of my organization possess overwhelming evidence that one of the nominees selected by the Commission- Judge Jonathan Lippman- falls far short of the ethical standards required by the office of Chief Judge. This letter describes one example of abuse by the First
Department Appellate Division under Judge Lippman’s supervision, but my colleagues and I have documented evidence of many more, some of which are pending in federal complaints.

Justice Lippman has Countenanced Rampant Impropriety by
Unethical Lawyers From a Law Firm Connected to a Member of Your Commission

For the past decade, Attorney Leon Friedman has been fraudulently registered in the Second Department, even though his sole law office is at 148 East 78th street, which puts him unambiguously in the jurisdiction of the First Department DDC. Although this may appear to be a trivial infraction, it has serious ramifications, as will be explained. More importantly, Judge Lippman’s consistent failure to hold Mr. Friedman and the DDC accountable is illustrative of a pattern of bending and breaking rules to allow serious ethical and legal infractions by Friedman and his firm, The Law Offices of Richard Ware Levitt.

In July 2006, I filed a disciplinary complaint against Mr. Friedman with the First Departmental Disciplinary Committee. The claims included destruction of evidence, perjury, conflict of interest and many more serious charges.

In reply, then Chief Counsel Thomas Cahill, wrote me the following: “[Mr. Friedman] does not practice in Manhattan or the Bronx and is, therefore not within our jurisdiction”. This response was so utterly and demonstrably false that the only explanations were corruption or incapacity on the part of Mr. Cahill. It turns out that Cahill based his determination of jurisdiction on Friedman’s fraudulent registration information, rather than the listing of his sole law office address which is found on the internet, phone book, his letterhead and over the door of 148 East 78th street, beside the plaque that reads “Law Offices of Gerald B. Lefcourt, Leon Friedman, Richard Ware Levitt…

When Judge Lippman appointed Allan Friedberg to replace Cahill, he wrote: “Alan W. Friedberg’s …commitment to the highest ethical standards render him extremely well prepared to serve as Chief Counsel.” That sounded hopeful, so my first letter to Mr. Friedberg was to confirm the obvious fact that Mr. Friedman practices in, and is therefore under the jurisdiction of the First Department, in order to re-file my complaint.

Over the past year, I have written twelve letters to Mr. Friedberg, asking simply for confirmation of Friedman’s jurisdiction, be it in the First Department or elsewhere. Mr. Friedberg’s has adamantly refused to confirm or deny Mr. Friedman’s jurisdiction, and has ignored my correspondence.

For three years the DDC has obstructed my complaint against Mr. Friedman by refusing to acknowledge their jurisdiction over Mr. Friedman. Moreover, they have denied me my right of redress by effectively banning me from any communication with the Committee. When, after several months of my letters being ignored, I visited the DDC. I was told that Mr. Friedberg had forbidden the entire DDC staff to discuss anything with me, including the status (or existence) of my complaints. When I asked for an explanation, they threatened to have me thrown out by security, a threat they rescinded when told I was recording the conversation. When I tried to make an appointment to see Mr. Friedberg, I was told, without explanation, that I could not make an appointment in person or by phone, and that I would have to make an appointment by mail. Several weeks ago, I sent a letter requesting an appointment by mail, but unsurprisingly, my request has been ignored. Denying me access to a public agency is a violation of my civil rights. Fortunately, all of my interactions with the DDC have been recorded and transcribed.

Clearly, Mr. Friedman’s fraudulent registration is more than an innocent twelve-year oversight. It is a deliberate strategy to obstruct the proceedings of the DDC, and it is abetted by Mr. Friedberg and Judge Lippman for their own advantage as explained below. I have brought these issues to the attention of DDC Chairman, Roy Reardon, but thus far have received no indication of forthcoming investigation or action.

I have hand delivered seven letters to Judge Lippman, complaining about the abuses of his appointee and the DDC in general. Most of my letters have been ignored, and the only responses have been irrelevant “form” letters, signed by his Clerk John McConnell, generally referring me back to Allan Friedberg, as if he were expected to discipline himself.

Several months ago, I wrote a letter to Judge Lippman, explaining that according to the Rules of the Chief Administrative Judge PART 118. Registration Of Attorneys, he was personally responsible for holding Mr. Friedman to account:

(e) The registration statement shall be on a form provided by the Chief Administrator and shall include the following information, attested to by affirmation: (7) office addresses (including department); [note the plural] Failure by any attorney to comply with the provisions of this section shall result in referral for disciplinary action by the Appellate Division of the Supreme Court pursuant to section 90 of the Judiciary Law.

In other words, the Appellate Division (First Department), of which Judge Lippman is the Presiding Justice, is legally and ethically obliged to turn in renegade lawyers like Leon Friedman to the Disciplinary Committee. If Judge Lippman didn’t know the law before I told him, he knows it now, and yet he willfully chooses to break the law for the sole purpose of protecting Mr. Friedman and his friends.

[It should be noted that Mr. Friedman’s use of the false registration address to avoid a Disciplinary complaint puts him in violation of Penal Code § 210.40 “Making an apparently sworn false statement in the first degree. A person is guilty of making an apparently sworn false statement in the first degree when he commits the crime of making an apparently sworn false statement in the second degree, and when (a) the written instrument involved is one for which an oath is required by law, and (b) the false statement contained therein is made with intent to mislead a public servant in the performance of his official functions, and (c) such false statement is material to the action, proceeding or matter involved. Making an apparently sworn false statement in the first degree is a class E felony”].

The above is just one of numerous ways that Judge Lippman is helping Mr. Friedman, his partners and his office mates. Mr. Lippman has also ignored written complaints from my lawyers. Neal Brickman and Associates, regarding various infractions by Mr. Friedman, including lying outright to the Appellate Court judges during oral argument. It would appear that at the very least, Judge Lippman is guilty of numerous counts of Official Misconduct and several judicial ethical violations.

Why Judge Lippman Would Break the Law to Help a Lawyer Like Friedman?

Why would a Chief Justice of the Appellate Division break the law and risk losing his job and reputation (and liberty) just to help a five-attorney law office avoid the consequences of their illegal activities? Could it have to do with the fact that Mr. Friedman and his partner Richard Ware Levitt share their offices, secretary, phone number, fax machine, clients and cases with Mr. Gerald B. Lefcourt, and that Mr. Lefcourt is a member of the very Judicial Nomination Commission in whose hands lies Judge Lippman’s potential future as Chief Judge?

Life would be much easier for Mr. Lefcourt and his friends if they had a friend like Judge Lippman as Chief Judge of New York State who would allow them to break ethical rules with impunity, as he has done up to now. And life would be much easier for Lefcourt’s clients, who include gentlemen named Bonnano, Gambino and Gotti and Gigante, among others. My guess is that Mr. Lefcourt is a big proponent of Judge Lippman for the job of Chief Judge. If I am wrong, the myriad improprieties of Judge Lippman on behalf of Mr. Lefcourt’s friends are still a sound basis for his disqualification.

The fact that Judge Lippman has broken the law for the benefit of select lawyers is grounds enough to have him removed for consideration by the Commission and should be grounds for his arrest. The fact that Mr. Lefcourt’s partners are the beneficiaries of Judge Lippman’s illegal largesse is grounds for Mr. Lefcourt’s immediate disqualification from the commission and an investigation into illicit influence on the Nomination process. Mr. Lefcourt should also be required to explain how it is that he is registered in the First Department while his colleague down the hall is registered in the Second. The excuse that Mr. Friedman teaches at Hofstra does not wash, because the registration applies to law practice only, not teaching offices. In any case, registration of all law office addresses are required by §118. It is Mr. Lefcourt’s ethical obligation under the LCPR to report and rectify this fraud.

Clearly, Judge Lippman is totally unaccountable for the abuses of his own appointees in his own Division. His choice of Allan Friedberg as Chief Counsel to the DDC is a testament either to his appalling judgment or corrupt intentions- or both. It would be foolish to expect that he will serve the public any more honorably as Chief Judge.

I have distributed copies of my evidence among numerous people, including law enforcement officials, elected officials and members of the local and national press. My webmaster is preparing a website that will publish all of the pertinent documents as well as the audio and video recordings of official misconduct by Friedberg and others.

I am hoping that at least some members of your Commission have retained an ember of integrity and interest in the well-being of New York State. I urge you all to respond to this letter with any questions or requests for documentation of the complaints against Judge Lippman by me or the other members of Integrity in the Courts. Your failure to investigate our documented claims against a candidate under your consideration would be an obvious dereliction of your duties as Commission members.

Fortunately, the winds in Washington have changed; improprieties overlooked by Mr. Mukasey will not be tolerated by Mr. Holder. Several members of my group and I have connections high in the administration-elect and we are very encouraged by their concern regarding corruption in the New York Judiciary.

It is your Committee’s responsibility and privilege to help select a Chief Judge that will improve the Judiciary for ALL decent New Yorkers, not only a select few.

I look forwards to answering your questions.

William Galison
Integrity in the Courts
917 517 7344

Thursday, November 27, 2008

Still Thankful for Correction of Judicial Cannibalism

Last Thanksgiving we ran "Thanksgiving for Fraud Against Retired Judge Recusal," the case where greedy members of the court believed it was just fine to rip off dying former Civil Court Judge John L. Phillips and his $10 million. The New York Law Journal article by Dan Wise is worth reviewing, and though Judge Phillips is now dead and the story is dated, our resolve to see the restoration of the Rule of Law and Due Process remains stronger than ever.  We'll be updating this case soon.

Worthy of Review:

"Thanksgiving for Fraud Against Retired Judge Recusal,"

Wednesday, November 26, 2008

New York Attorney Must Repay State Pension

NY Lawyer Stripped of State Pension
The New York Law Journal by Joel Stashenko - November 26, 2008

Comptroller Thomas P. DiNapoli has stripped a retired attorney from Long Island of his state pension after determining the lawyer was never a valid employee of the Babylon, Island Trees or Levittown school districts. George Lipp Jr. must repay $82,209 to the New York State and Local Retirement System, Mr. DiNapoli said. Mr. Lipp, 80, did not work fixed hours, keep time sheets or display other signs of being an employee of the districts through which he was enrolled in the public pension system, according to Mr. DiNapoli's office. He worked from his private law firm in Bay Shore while being listed as an employee of the districts until his retirement in 1983, Mr. DiNapoli said. Mr. Lipp retired with nearly 16 years of accumulated service credit and an annual pension of $9,321, according to the comptroller. "Every dime put back in taxpayer-funded coffers counts when all levels of government are being forced to reduce spending," Mr. DiNapoli said in a statement. Mr. Lipp is the 40th person to lose their pensions or some pension credits due to what Mr. DiNapoli contends is their ineligibility for public pension benefits.

Tuesday, November 25, 2008

Mark F. Pomerantz To Be Named SDNY U.S. Attorney

BREAKING NEWS:  Mark F. Pomerantz To Be Named SDNY U.S. Attorney...MORE...A source within President-Elect Barack Obama's Chicago's office confirmed early this morning that Mark F. Pomerantz will be appointed as the United States Attorney for the Southern District of New York. Mr. Pomerantz is currently a partner in the Litigation Department at Paul, Weiss, Rifkind, Wharton & Garrison, LLP in Manhattan.  REJOICE, NEW YORK, this guy is what we've been waiting for........ More soon..............

Ghosts of Judges' Complaints Wrapped With Rat Poison Haunts Us

A walk down memory lane, by reviewing the following New York Times article, provides a sad insight into the thirteen year blur that is the New York State court system- a dysfunctional and corrupt injustice machine polluted with a dirty web of spineless leaders. The lack of direction has disgraced the good people of New York's Office of Court Administration, reducing them into silently joining a reckless machine of beaten, mean-spirited and fearful workers.  True leadership brings people together, and guides the group constructively for overall good. Demoralization and hatred in and about New York's legal system can be replaced with pride, faith and trust.  But only with an honorable direction focused on improving what is not working. A good-intentioned leader, with the help and trust of the people, can indeed restore a sadly broken court system to a structure of which to be proud- one that promotes due process, the rule of law, and a restored faith by the people in their government.  Critical to such success is a work environment that promotes good will and proper compensation, and the removal of those who act against such a system. We must move beyond the lingering question of who, of any substantive worth, has been in charge. There will never be an answer that will provide any comfort. We will soon repeat our request for constructive suggestions for presentation to Governor Paterson and the new Chief Judge of New York. So, we look to the future, and that hope begins with a leader named Chief Judge Theodore T. Jones, Jr.

OCA: A Festering Evil

Dispute of Court Officers And Judges Escalates

The New York Times by DON VAN NATTA JR. - November 22, 1995

With so many people and so many emotions jammed into such small spaces, it is no wonder New York City courts are raucous places where court officers and judges have to struggle to maintain the peace. But these days some of them are failing to keep the peace among themselves. In the last few months the relationship between a dozen or so judges throughout the city and the union leader of the uniformed court officers has escalated into a high-volume clash laced with personal attacks and, at times, profanity. The judges have complained that some officers, perhaps taking a cue from their union leader, are failing to obey orders and treating the public rudely. They say some also chew gum and take personal calls during court business. In May, two Brooklyn Housing Court judges, who had complained about an officer, found copies of their complaint letters wrapped with rubber bands around boxes of rat poison inside their courthouse mailboxes. (The court officer in question denied planting the rat poison.)

"There is a real concern among some judges that some court officers are not acting in an appropriate manner," said Administrative Judge E. Leo Milonas. "We want to send the message, loud and clear, that the judges run the courtrooms and the court officers have to conduct themselves in a professional manner." Dennis W. Quirk, 45, president of the 1,200-member New York State Court Officers Association, was himself suspended without pay for shouting a profanity at a Housing Court judge. "If they want a war, I don't take prisoners," Mr. Quirk, who has led the union for 23 years, said. "I take body bags." No one is quite sure how or why the dispute began, though some judges suggested they were fed up with Mr. Quirk's power and outspokenness about their efforts to control their courtrooms; court officers, who carry guns, are responsible for security within the courtroom and for helping the public and jurors. Coincidentally, the fight has intensified at a time when the court officers' union is working without a contract, which expired in April. Contract negotiations are scheduled to begin on Dec. 4, and both sides say they hope the recent clashes will be kept out of the negotiating room.The disagreements also come during the budget season, as the officers' union aggressively lobbies for more officers.

An Office of Court Administration committee concluded this summer that the court system needs 79 new officers to maintain its current level of security. But the new positions were initially left out of next year's budget, outraging Mr. Quirk and union members. That anger burst into public view at a budget hearing on Oct. 5, when Mr. Quirk criticized Manhattan Criminal Court Judge Ruth Pickholz, the president of the Criminal Court Judges Association. Judge Pickholz called for new computers and improved court facilities but no new court officers. When it was Mr. Quirk's turn to speak, he criticized Judge Pickholz for allowing a defendant to jump over the railing that separates the front of her courtroom from the gallery, which Mr. Quirk considered a security breach. Judge Pickholz responded that some security problems were caused by discourteous and disruptive officers who made personal calls and chewed gum.

Mr. Quirk in turn responded with a complaint that Judge Pickholz did not wear black robes in court. "Maybe the defendant who jumped over the rail thought you were a social worker," he told the judge. "Maybe that's what you should do -- become a social worker." Since the hearing, 37 new officers were added to the budget. But nine judges complained afterward to Judge Milonas, the state's chief administrative judge, that Mr. Quirk's confrontational actions were setting a poor example for court officers, who mimicked them in courtrooms. "There are some who are extremely concerned," said Judge Barry A. Cozier, the deputy chief administrative judge for the New York City courts. "He has been president of the union in excess of more than 20 years. He is somewhat of an institution within the institution. Some people have a problem with that, but it's a fact of life." Mr. Quirk's suspension, for 45 days, came in May, when he shouted a profanity at Judge Margaret Taylor in Manhattan Housing Court. "Every day, for seven or eight days, she had been abusing the court officers," Mr. Quirk said yesterday. "She was yelling at them, telling them to sit down. She was making all sorts of derogatory comments that court officers are no good, that they are worse than the Gestapo."

Judge Taylor responded yesterday, "No, I did not do that." She said her problems with court officers stem from her desire to run a "tender-loving-care courtroom," which, she said, some court officers' behavior disrupts. Judge Taylor said that she hears landlord and tenant cases in which a majority of people represent themselves. "I like it to be quiet, and I like it to be humane," Judge Taylor said. "But the court officers shout at people, abuse people and arrest people. I see no need for a large military presence in that court. I believe you need no court officers in that court." In response to the outcry against officers, Judge Milonas issued a memo last month asking the city's 500 judges to make written complaints about officers' behavior so that the Court of Office Administration can begin formal investigations. "If they feel there is a real problem, sort of griping about it is not enough," Judge Milonas said. At the same time, Mr. Quirk issued his own memorandum to court officers, asking them to begin recording the times judges are on and off the bench and report any "unusual event or conditions." The memo annoyed most judges. But a few weeks later, Mr. Quirk withdrew the directive. "I get along with 99.8 percent of the judges in this city," Mr. Quirk said. "There is just a small group of people who don't agree with the way we do things. But no one -- no one -- will stop me from being president of this union and doing what is best for this union."

Monday, November 24, 2008

Prosecutor Lashes Judge

Worthy of Review

Suffolk Prosecutor Calls Mixed Verdicts Issued by Judge in Bribery Trial 'Clearly Political'
The New York Times by BRUCE LAMBERT - May 29, 2004

Suffolk County's district attorney took the rare step of lashing out at a judge yesterday accusing him of issuing ''political'' verdicts in the closely watched bribery trial of a former Brookhaven official and a paving contractor. District Attorney Thomas J. Spota criticized Judge Gary J. Weber of Suffolk County Court hours after he acquitted Patricia Strebel, a former town councilwoman and more recently the highway superintendent, of the most serious charges in the case, levied a $2,500 fine for misdemeanors and imposed no jail time. At the same time, the judge convicted the co-defendant, Stephen Milvid, the contractor, of numerous felonies, subjecting him to years in prison. Prosecutors accused Mr. Milvid of rewarding Ms. Strebel with a $10,000 campaign donation in return for inflating the bills for the paving and curb work by his company, Debut Concrete, by $72,000, and cheating the town of $136,000 in landfill fees by dumping debris at no charge. He was also accused of underpaying his workers by $249,000. Mr. Spota issued a sparse statement saying, ''I believe that this was clearly a political verdict.''

Judge Weber is a Republican, as is Ms. Strebel. Mr. Spota is a Republican-turned-Democrat who has gained a reputation for prosecuting corruption cases during his nearly two and half years in office. Most of the targets have been Republicans, who hold a majority of the public offices in Suffolk, but some targets have been Democrats. Many of the investigations have focused on Brookhaven, the most populous and politically powerful town in Suffolk, whose scandals have earned it the nickname Crookhaven. Mr. Spota's spokesman, Robert Clifford, could not recall another instance in which the district attorney had publicly criticized a judge. Although Mr. Spota did not elaborate, his assistant in the case, John S. Prudenti, said: ''The judge's verdict to convict Milvid but not his co-defendant defies logic and the law. The court acknowledged that Mr. Milvid couldn't do what he had done without the help of Ms. Strebel, and even then they didn't find her guilty.'' Judge Weber could not be reached for comment. A court spokesman said that since the contractor's sentencing is pending, it would be inappropriate for the judge to comment. In the nonjury trial, Judge Weber acquitted Ms. Strebel of the felony charges against her, like grand larceny, but convicted her of falsifying business records and official misconduct misdemeanors.

Despite her indictments, Ms. Strebel ran for re-election last year as the highwa superintendent. She won a Republican primary but lost the general election. Mr. Milvid's lawyer, Paul Gianelli, echoed the district attorney's criticism of the verdicts, but from the vantage point of the defense. ''If my client's co-defendant was found not guilty, then I believe he should have been found not guilty as well,'' Mr. Gianelli said. In the trial, Ms. Strebel said she padded the bills to cover additional stump and root removal; prosecutors said the work was covered by the contract. Judge Weber ruled that Mr. Milvid's campaign donations were not bribes, but were in the tradition of contractors contributing to public officials to keep ''good will.'' A third defendant, Daniel Wirshup, the public works superintendent for Patchogue, was acquitted on charges that he used similar bill-padding schemes with Mr. Milvid.

Sunday, November 23, 2008

EXCLUSIVE: Chief Judge Theodore T. Jones, Jr.

Paterson's Pick Brings Hope: New Chief Judge will be Theodore T. Jones, Jr.

It's confirmed. New York Governor David A. Paterson has decided that current Associate Judge of the New York State Court of Appeals, Theodore T. Jones, Jr., will be the next Chief Judge of New York State.

"Nothing will change Dave's mind on who will be the next Chief Judge of this state," says our source, and who asked that she not be identified, adding, "Judge Jones is highly respected and a man of unquestioned integrity."

When asked whether Gov. Paterson knew the depth of the corruption within the state court system, the source avoided the question, "Governor Paterson wants decisive change and he is determined to restore the faith of the people in their government and court system." Asked again if the Governor had knowledge of how severely corrupt the state court system had become, our source became a bit testy, "Listen, Dave knows more legal jokes than most people, but the point is that this Governor is committed to cleaning up the mess at all levels of OCA, all while simultaneously securing hefty and deserved judicial pay increases. Dave knows how important this decision is and that's why we'll have a trusted leader like Justice Jones to bring the changes needed at all levels of the court system."

But we pressed again about whether our Governor was aware of how much of a cesspool our court system had become, and before a odd telephone line disconnection we heard, "Dave knows that if he doesn't insure top-to-bottom change in the state's courts, he might as well endorse Rudy Giuliani in the next election."

Background on New York State Chief Judge Theodore T. Jones, Jr.

Justice Jones is currently an Associate Judge of the New York State Court of Appeals. Previously, he served as a Supreme Court Justice for the Second Judicial Department and Administrative Judge of the Civil Term of Supreme Court in Kings County. Soon-to-be Chief Judge Jones was first elected to Supreme Court in 1989, and was re-elected in 2003. While on the bench, Justice Jones has served as both a Criminal Term judge and a Civil Term judge.
Justice Jones was born in Brooklyn and graduated from Hampton University and St. John’s University School of Law. He served on active duty with the United States Army, and was in Vietnam from 1968 to 1969. Before being elected to the Supreme Court, Justice Jones worked as a criminal defense attorney for the Legal Aid Society, a Law Secretary for Judge Howard A. Jones of the New York State Court of Claims, and as a private practitioner. Justice Jones lives in New City with his wife, Joan. They have two grown children, Wesley and Theodore.

Recently, Integrity in the Courts and asked Governor Paterson to appoint Brooklyn Surrogate Judge Margarita Lopez Torres as New York's next Chief Judge. Judge Lopez Torres confirmed last week that she had been contacted to submit an application to the state's Judicial Nomination Committee, but that she had declined, indicating that she still had important work before her in Brooklyn's Surrogate Court.

Attorney Indicted on 'Homer' Tax-Shelter Fraud

Indictment Links Deutsche Bank to Tax-Shelter Inquiry
The New York Times by LYNNLEY BROWNING - November 17, 2008

Federal prosecutors have indicted a lawyer trained in accounting, charging that he sold questionable tax shelters named for the lead character of the show “The Simpsons.” The lawyer indicted in the case, John B. Ohle III, was an executive at Bank One before it was acquired by JPMorgan Chase in 2004. The case may put pressure on Deutsche Bank, which has been under criminal investigation over its tax shelter work from the late 1990s through 2001. Deutsche Bank, identified in the indictment unsealed late Friday as “Bank B,” arranged the financial transactions that Mr. Ohle sold. The shelter, known as Homer, allowed wealthy clients to falsely generate bogus tax losses of nearly $430 million, and to evade taxes of $103 million, according to the indictment from prosecutors for the Southern District of New York, who are also leading the inquiry of Deutsche Bank. Mr. Ohle, who is also an accountant by training, is accused of selling 36 abusive shelters in 2001 to wealthy clients of Bank One and Jenkens & Gilchrist, a national law firm that went bankrupt in 2007 amid scrutiny of its tax shelter work. Jenkens earned $12.1 million in fees, while Bank One earned $5.2 million from the Homer shelter, according to the indictment. Mr. Ohle worked for a Bank One unit in Chicago that focused on selling aggressive tax shelters. In 2002, he left to form his own tax shelter boutique, the Dumaine Group, with former colleagues.

The indictment charges Mr. Ohle, a resident of Wilmette, Ill., and New Orleans, of multiple counts of tax evasion, conspiracy and obstruction of I.R.S. procedures. David Spears, a lawyer for Mr. Ohle, said on Sunday that his client “did not commit any crime, and we intend to defend the case vigorously at trial.” Since at least 2004, prosecutors have been examining Deutsche Bank for its role in two related, abusive tax shelters that were sold to investors and involved collaboration between banks, law firms and accounting firms. Homer and its cousin, Cobra, are both considered by the I.R.S. to be variations on one widely sold abusive tax shelter of the late 1990s, Son of Boss, itself related to Boss, or bond and options sales strategy. Cobra, which stands for “currency options bring reward alternatives,” was sold to more than 1,100 wealthy investors, while Homer, which stands for “hedge option monetization of economic remainder,” was sold to dozens of investors. The Homer and Cobra inquiries revolve around Deutsche Bank’s role in arranging what prosecutors contend are bogus trades and loans that were intended to lose money. Among the unnamed investors who bought Homers are a truck-stop owner from McComb, Miss., and the owner of an options-trading firm in Chicago, the indictment said.

Saturday, November 22, 2008

Former Family Court Judge's Allegations of Sexual Misconduct Pop Up

McMahon pick has blot on his record
Former Family Court judge here resigned in wake of sex-harass allegations
THE STATEN ISLAND ADVANCE by Judy L. Randall - November 20, 2008

STATEN ISLAND, N.Y. -- A former Staten Island Family Court judge who resigned 15 years ago amid charges that he sexually harassed female court personnel will be on the payroll of Democratic Congressman-elect Michael McMahon to oversee the operation of the three district offices McMahon said he will open, here and in Brooklyn. McMahon said Carmen Cognetta will become his "district coordinator in charge of facilities" and said Cognetta will be the "right-hand guy to the chief of staff," whom McMahon has yet to publicly name. But McMahon bristled when asked whether allegations of Cognetta's sexual misconduct during the 1980s and '90s, directed at female court officers and clerks as well as court-appointed lawyers, make Cognetta suitable for the job.

"I'm the congressman," said McMahon, who will be sworn in Jan. 6. "My name is on the door. My reputation speaks for itself." In 1993, Cognetta, serving as a Family Court judge in St. George, was investigated by the New York State Commission on Judicial Conduct regarding allegations that he sexually harassed women who worked or had business in the courthouse. The alleged misconduct included allegations Cognetta used crude and obscene language, including solicitations of sex, directed at female attorneys and court personnel. It was said to have occurred over a six-year period. At the time, Cognetta's attorney called the charges unfounded.

During the investigation, Cognetta was reassigned to Brooklyn, but resigned that July. The investigation was terminated. While the investigation was ongoing, Dennis Quirk, president of the New York State Court Officers Association, said that, "based on conversations I had with my females, I feel these are credible charges that will be sustained." But yesterday, Quirk said that subsequent inappropriate behavior by one of the female court officers who made allegations against Cognetta made him question her veracity. "I questioned myself after the fact," said Quirk of her allegations. Cognetta, now 62, was first appointed to a partial term on the Family Court bench in 1984 by then-Mayor Ed Koch. He was reappointed in 1992 to what was supposed to be a full 10-year term by then-Mayor David Dinkins. Family Court judges are appointive positions that usually go to politically well-connected attorneys.

After resigning, Cognetta returned to private practice specializing in adoption cases. For the last seven years, he has been on the City Council central staff payroll, a position he got through McMahon, who tapped him to serve as legal counsel to the Sanitation Committee, which McMahon chairs. McMahon and Cognetta, who live around the block from each other in Randall Manor, have been together in Washington, D.C., this week for "freshman orientation" of new members and incoming staff. McMahon said Cognetta spent yesterday in a seminar on how to set up a congressional office. He declined to make him immediately available.

Cognetta -- who never personally responded to the allegations of sexual harassment that were lodged against him -- could not be reached for comment. Said McMahon: "I have known him for all of my adult life. He is my neighbor, my friend and my trusted confidant. I have worked with him in the City Council. He was valuable in formulating the 20-year solid waste management plan. I know him to be nothing but an upstanding, all-around guy. No one has ever complained to me. I don't know the facts in this old case. All the matters were dropped. It is a closed chapter in my mind." McMahon said he intends to have two district offices on the Island -- one on the North Shore and the other either in the Mid-Island or South Shore area -- and a third office in Brooklyn. He said Cognetta will be "in charge of the facilities, running the offices, trouble-shooting the offices, setting them up, getting a bookkeeper." As "district coordinator," Cognetta will serve under the chief of staff, director of communications and district director, McMahon said. When McMahon was asked about his impending hire of Cognetta, in light of the sexual indiscretions that brought down outgoing-Rep. Vito Fossella, he responded, "That's a stretch." Judy L. Randall is a news reporter for the Advance. She may be reached at

Friday, November 21, 2008


FBI Probes Threats on Federal Witnesses in NY Ethics Scandal

New York, New York, November 21, 2008- Sources have confirmed that Federal Agents in New York and Washington, D.C. are actively investigating complaints of witness tampering in the New York State Ethics Scandal pending in the federal District Court in Manhattan.

Legal Authority: Pay to Play

The latest probe began in July of 2008 when numerous individuals went to federal authorities with various accounts of illegal payoffs to New York State employees at the Departmental Disciplinary Committee (“DDC”) at 61 Broadway in lower Manhattan. The DDC investigates ethics complaints against attorneys in Manhattan and The Bronx, and has been long believed to be a corrupt, political vendetta machine.

One cooperating attorney is quoted as saying, “I did not have to worry about any ethics complaints because I always paid my insurance premiums to the DDC. Everyone knew what was going on.”

Witness Tampering: Threats on a Federal Witness

Federal Agents from two different offices sprung into high gear after the summer when a DDC supervising attorney threatened another state-employed DDC attorney under his direction. The DDC staff attorney was apparently confronted days before his sworn testimony was to begin in the ethics probe, and the intended message was made perfectly clear, says the source, adding, “You have a very serious situation requiring immediate involvement by federal authorities anytime someone confronts a federal witness and warns that a death may result from testimony.”

New York Norm: Obstruction of Justice

The allegations, and initial findings, were serious enough for investigators from New York State to forward the troubling reports to federal agencies. Attorney General Andrew Cuomo was initially apprised of the witness tampering allegations and he has been tracking the various federal inquiries since. And it has been confirmed that Appellate Division, First Department, Presiding Justice Jonathan Lippman ordered that the involved DDC supervising attorney be immediately transferred to his courthouse at 27 Madison Avenue from the DDC offices on Broadway where the threatened attorney works. Another court insider believes it’s “just another OCA cover-up,” adding, “no one in the First Department- or anywhere in the State- wants an ethics committee supervising attorney spilling the beans to a crowd of FBI agents.”

Recently appointed DDC chairman, Roy Reardon, according to sources, has been involved in DDC affairs on an almost daily basis, and he has acknowledged the seriousness of the physical threats and psychiatric issues involved. “To his credit,” says the source, “Roy Reardon took immediate action after he confirmed that he was staring at witness tampering by one of his DDC supervising attorneys. It was Roy who first suggested the transfer.”

It has been long rumored that virtually any ethics complaint, no matter how serious or criminal, could be made to disappear for “favored attorneys.” “The feds are now beginning to understand that a ‘favored attorney’ in New York doesn’t just involve political connections. A New York ‘favored attorney’ is one who pays,” says one attorney who has practiced in the federal court system for over thirty years, and who asked not to be identified.

It is believed that the underlying federal action is Anderson v. State of New York (SDNY), though there are other ethics cases pending, and some before the 2nd Circuit- all involving charges of corruption at the DDC.  (CLICK HERE to see the Anderson Lawsuit)

“Win at all Costs” and “No Regard for Laws or Ethics” Hits National Agenda

The latest allegations coincide with the obstruction of justice case in the Eastern District Court in Brooklyn against defense attorney Robert Simels and his associate Arienne Irving, who each face up to 10 years in prison for allegedly seeking to use bribes and violence to prevent witnesses from testifying against one of their clients.

Tamanny Hall II – New York Court’s Cesspool Seeps to Washington, D.C.

In November of 2008, the U.S. Supreme Court decided to hear Caperton v. A.T. Massey Coal, a case that centers on state level ethics and judges beholden to financial supporters. The Brennan Center and other advocacy groups have called the issues egregious, matters that raise underlying questions about due process on a national level.

See, "The Unethical Ethics Committee"

Background story on New York-Style Ethics, "Sex Scandal at Attorney Committee on Character and Fitness"

Background article on State Ethics case to be heard by the U.S. Supreme Court:

U.S. Supreme Court Is Asked to Fix Troubled West Virginia Justice System
The New York Times by ADAM LIPTAK - October 12, 2008

WASHINGTON, D.C. — The justice system in West Virginia is broken and the United States Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court’s attention. The chief justice of the West Virginia Supreme Court lost an election in May, after pictures of him vacationing in Monte Carlo surfaced in the newspapers. He was with a powerful coal-company executive who had business before the court. A second justice has called the executive, Don L. Blankenship, stupid, evil and a clown who was “trying to buy influence like buying candy for children.” That justice, Larry V. Starcher, has disqualified himself only selectively from cases involving Mr. Blankenship’s company, Massey Energy. A third justice, Brent D. Benjamin, won his seat with the help of more than $3 million from Mr. Blankenship but has refused to disqualify himself from cases involving Massey, and twice joined a 3-to-2 majority throwing out a $50 million verdict against the company. The United States Supreme Court is likely to announce this week whether it will hear the first of the cases, about whether the Constitution’s due process clause requires Justice Benjamin to step aside in the $50 million Massey case.

The case, Caperton v. A. T. Massey Coal Company, No. 08-22, has attracted supporting briefs from the American Bar Association and several other groups urging the court to hear the case. “If the public believes that judges can be bought,” said Keith R. Fisher, a lawyer for the bar association, “that is really poisonous and undermines public confidence in an independent judiciary.” James Sample, a lawyer with the Brennan Center for Justice at New York University School of Law, which also filed a supporting brief, called Mr. Blankenship’s campaign spending “a brazen attempt to purchase influence in a specific pending case.” Justice Benjamin did not respond to a request for comment. In a long opinion issued in July explaining his decision not to disqualify himself, he said he had judged the case on the merits and that only proof of a judge’s actual bias, as opposed to the appearance of a conflict, requires recusal. Massey has filed a brief urging the Supreme Court not to hear the case, calling the matter “a grand conspiracy theory.” The Massey brief said the United States Supreme Court “has never adopted a ‘looks bad’ due process test.”

The plaintiffs in the case are mining companies that say they were driven out of business by fraud committed by Massey. They are represented in the Supreme Court by Theodore B. Olson, a former United States solicitor general. “Individuals and entities that have business before the courts of the United States must be assured that the judges who handle their cases handle them truly, squarely and fairly,” Mr. Olson said. Mr. Olson argued and won the leading decision in this area, Aetna Life Insurance v. Lavoie, which was decided in 1986. But that case established only that the Constitution can require judges with a financial stake in the outcome of a case to disqualify themselves. Caperton, by contrast, turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required. Massey takes a different position in a second appeal to the United States Supreme Court, this one urging the court to disqualify Justice Starcher, he of the intemperate remarks. “There would be no inconsistency” in granting that appeal while turning back the one concerning Justice Benjamin, a Massey brief said, because Justice Starcher’s bias was manifest while Justice Benjamin’s conflict of interest, if there was one, was a question of appearances only.

Justice Starcher has acknowledged having said some harsh things, and in an opinion in April he apologized for his remarks about Mr. Blankenship. “He is obviously an intelligent person,” Justice Starcher wrote of Mr. Blankenship. But Justice Starcher added that he would disqualify himself only if Justice Benjamin did. If that is a violation of due process, he wrote, “so be it.” Should the United States Supreme Court hear the matter, he continued, “we will surely be told that $3,500,000 in electoral support by the C.E.O. of an active litigant in the court is sufficient to create ‘an appearance of impropriety.’ ” In a telephone interview on Thursday, Justice Starcher said he could keep an open mind in cases involving Massey and Mr. Blankenship.
“I don’t have any bias against them in a legal sense,” Justice Starcher said. He proposed an analogy. “I don’t smoke,” he said. “I don’t advise my children to smoke. But I don’t get off tobacco cases.” Justice Starcher added that the defeat of the chief justice, Elliott E. Maynard, and the series of Massey cases have strained personal relationships on the court. “Some of the justices still barely speak to each other,” he said. “It’s a little tense.” The respondents in the second case, Massey Energy v. Wheeling Pittsburgh Steel Corporation, No. 08-218, are also represented by Mr. Olson. His brief is due Oct. 22, and he said it was premature to discuss what it would say about Justice Starcher. The petition in that case and a third one, NiSource v. Estate of Tawney, No. 08-219, also attack a distinctive aspect of West Virginia justice: companies hit with enormous punitive damages awards there have no right to an appeal. Only two states, West Virginia and Virginia, do not guarantee at least one level of appellate review in civil cases. But Virginia caps punitive damages at $350,000. West Virginia was responsible for three of the seven largest verdicts in 2007, according to The National Law Journal. Yet when two of those verdicts — one for some $400 million, the other for about $220 million — reached the West Virginia Supreme Court, the justices declined to hear appeals. Andrew L. Frey, a lawyer for Massey, said the failure to allow at least one complete appeal violated due process. “The risk of error if you leave it to a single judge, particularly an elected judge with a local constituency to accommodate, is too great,” Mr. Frey said.

It is not at all clear, however, that the Constitution guarantees a right to an appeal in a civil case. In criminal cases, the Supreme Court has repeatedly said there is no constitutional right to an appeal. And the relatively cursory review provided by the West Virginia Supreme Court over whether to hear an appeal at all may satisfy any constitutional requirement that there be appellate review.  end


Thursday, November 20, 2008

NY Court Clerk Arrested On Filing Fraud

New York's Courts: another reason to be proud- Filing Fraud by Court Clerk
3 stories follow:

The New York Post by IKIMULISA LIVINGSTON, JOE MOLLICA and KATE SHEEHY - November 19, 2008

The well-connected brother of a popular Brooklyn judge - employed as the No. 2 in the borough's Civil Court Clerk's Office - helped steal an elderly widow's home out from under her, authorities said yesterday. Brooklyn Chief Deputy County Clerk John D'Emic, 59, represented the husband of the unsuspecting, 74-year-old woman at the closing on the $490,500 sale of the couple's home last year in Jamaica, Queens, officials said. The problem is, the husband, Eugene Thomas, had been dead since 1986 - and his widow, Dorothy, never put the Union Hall Street house up for sale in the first place. "They tried to take advantage of her because they thought she was alone . . . She never sold the house," her nephew, Robert Mitchell, told The Post last night. "She's a nervous wreck. She's asthmatic, she's diabetic, she's got heart trouble," Mitchell said of the aunt who helped raise him. "She's afraid to answer the door because people come knocking saying they own the house and threatening her." 

Adding insult to injury, one of the people who set up the ailing widow was her own neighbor, Shamim Choudhury, 35, who posed as her dead husband at the closing, authorities said. D'Emic and Choudhury's alleged seven other cohorts - six of whom were arraigned in Queens Criminal Court yesterday - include Norman Barabash, a onetime suspected leader of an Asian prostitution ring. Barabash, a 63-year-old CPA from Bellerose, LI, is accused of preparing false tax statements for the straw buyer in Thomas' case to land the mortgage. Prosecutors said he has admitted to the scheme. D'Emic was in private practice when he allegedly participated in the $1.4 million, phony mortgage scheme that allegedly also bilked two other victims out of hundreds of thousands of dollars by using fake IDs and posing as homebuyers. The brother of respected Brooklyn Supreme Court Justice Matthew D'Emic and former counsel to state Sen. Martin Goldman (R-Brooklyn) began his job with the courts in October 2007. ikimulisa.livingston@ny


Court clerk indicted in mortgage scam
The New York Daily News bY WIL CRUZ AND WILLIAM SHERMAN  - November 19, 2008

An accused sex tour operator and a high-ranking Brooklyn court official were among nine people indicted Tuesday in a $1.4 million mortgage fraud scheme that featured stolen identities and an elaborate series of masquerades. In the scheme, con artists using fake IDs to conceal their participation bought and sold two Queens properties and one in Brooklyn and then took out the mortgages, authorities said. The three deals were done over an eight-day span last year, said Queens District Attorney Richard Brown.

The victims included a Jamaica woman who owned her home outright and now faces foreclosure; and a New Jersey woman, whose identity was stolen and is now fighting off banks over mortgages fraudulently taken out in her name, said Brown.John D'Emic, chief deputy county clerk for Kings County, allegedly was the paid attorney for the fraudulent buyers and sellers in the transactions and prepared false letters instructing how the mortgage proceeds should be distributed. D'Emic, who was in private practice at the time, was appointed to the $96,910-a-year court clerk's job in January. D'Emic, 59, was suspended from his job without pay. He did not return calls. The suspected sex tour operator, Norman Barabash, also a certified public accountant, is charged with claiming he had prepared five years' worth of tax returns for one of the buyers and preparing false letters for the mortgage applications. Barabash, 63, of Bellerose, L.I., is also under indictment for using a Queens travel agency to book sleazy sex tours to Southeast Asia.


Was Solo Practitioner in Brooklyn When He Allegedly Falsified Documents

The New York Law Journal by Mark Fass - November 20, 2008

The chief deputy county clerk for Brooklyn Supreme Court has been charged with facilitating a $1.4 million mortgage scam in which the conspirators allegedly used fake identification to sell houses they did not own. According to Queens prosecutors, John D'Emic represented either a fake buyer or a fake seller in each of three fraudulent transactions, receiving $1,800 in each case. Mr. D'Emic also allegedly prepared false letters regarding the disbursement of mortgage funds and illegally shared fees with a second, disbarred attorney. Mr. D'Emic, who was appointed chief deputy in January and earns $96,900 annually, was arraigned on Tuesday. He faces up to four years in prison. He was immediately suspended without pay by the Office of Court Administration. According to the Queen's District Attorney's Office, the investigation that led to the arrest of Mr. D'Emic and eight others began in November 2007, when 74-year-old Dorothy Thomas came to the office's Elder Fraud Unit to report that her home had been sold without her knowledge. Ms. Thomas learned of the sale after receiving mail and foreclosure notices addressed to "Tolessi Enyonam," the property's new purported owner. As laid out in the indictment, the defendants used fake I.D.s both to secure mortgages and pose as buyers in order to sell the three Jamaica-area homes to each other and split the proceeds. Mr. D'Emic, a Brooklyn-based solo practitioner at the time of the crimes, allegedly helped close the sales and falsify documents.

Mr. D'Emic was charged with 11 counts of falsifying business records and one charge of prohibited sharing of compensation by attorneys. Reached by phone yesterday, Mr. D'Emic's attorney, Samuel Gregory, said his client did not know that the underlying sales were fraudulent. Mr. D'Emic ranks among the crimes' victims, along with the banks, the homes' actual owners and two people whose identities were used to obtain the mortgages, Mr. Samuel said. "Knowledge and intent to defraud are necessary elements in all of the substantive counts with which Mr. D'Emic is charged," Mr. Gregory said. His client, he added, had neither. "Jack D'Emic has been practicing law for somewhere around 30 years," Mr. Gregory said. "He's got a reputation for honesty and truthfulness that goes back to the first day he began to practice." As chief deputy county clerk, Mr. D'Emic oversaw jury management, which included supervising personnel in the Division of Jurors and participated in the division's day-to-day management. Although county clerkships are administrative positions that do not require legal backgrounds, many clerks - including Mr. D'Emic and two of the four sitting chief clerks - have law degrees. Mr. D'Emic's eight co-defendants include Alan Morris, a former attorney who was disbarred in 1992 and served three years for grand larceny and possession of stolen property.

According to the present indictment, Mr. Morris worked for the Babylon law firm John Weber & Associates, and served as the bank's attorney on each mortgage, notwithstanding his disbarment. He also allegedly handled all the closings and prepared and submitted false documents, among other charges. Mr. Morris' attorney, Anthony Battisti of Queens, declined to comment. Mr. Weber declined to comment, other than to say that Mr. Morris worked in a secretarial or law-clerk capacity. A second co-defendant is Norman Barabash, a Long Island man already under indictment for allegedly running a "sex tourism" travel agency, Big Apple Tours, which was twice charged by then-Attorney General Eliot Spitzer with promoting prostitution by leading tours to Asian brothels. Mr. D'Emic is one of 10 siblings in a prominent Bay Ridge family. His brother Matthew D'Emic is an acting Supreme Court justice in Brooklyn's Criminal Part, overseeing both the mental health and domestic violence parts.

Wednesday, November 19, 2008

Debate Over Judicial Pay Ignores Widespread Corruption

Panel Weighs 'Actual' Versus 'Threatened' Harm on Pay
The New York Law Journal by Noeleen G. Walder - November 19, 2008

Members of a state appeals panel reacted skeptically yesterday afternoon to claims that judges protesting the lack of a pay raise must demonstrate actual harm to the operations and independence of the judiciary. Although "no one disputes" that New York state judges deserve a pay raise, "[n]o one can credibly say that the functioning of the judiciary has been impaired. The judges are doing their job," said Richard H. Dolan of Schlam Stone & Dolan, who represented the state and the governor in Larabee v. Governor, 112301/07, during oral argument before five judges of the Appellate Division, First Department. But Justice Dianne T. Renwick pressed Mr. Dolan. "Isn't the threat of harm sufficient? Do you wait until it breaks down before you protect" separation of powers? she asked. "The short answer is yes," Mr. Dolan replied in urging the court to overturn Supreme Court Justice Edward H. Lehner's (See Profile) June order directing the Legislature and governor to raise the pay of the state's 1,300 judges within 90 days.

The argument came just days after the Third Department dismissed Maron v. Silver, 504084, a suit filed by current and former judges who argued that the Legislature's failure to grant judges a raise since Jan. 1, 1999, amounted to a violation of the compensation clause of the state Constitution and the separation of powers and equal protection doctrines (NYLJ, Nov. 14). In Maron, a 4-1 panel held that the plaintiffs had "failed to allege a discriminatory attack on the judicial branch that has impaired the Judiciary's independence and ability to function." Thomas E. Bezanson of Chadbourne & Parke, the lead attorney for the four plaintiff judges in Larabee argued yesterday that Maron was "dead wrong" and asked the Manhattan-based panel to uphold Justice Lehner's grant of summary judgment to the Larabee plaintiffs. Like the judges in Maron, the four Larabee plaintiffs - Manhattan Family Court Judge Susan Larabee (See Profile), Cattaraugus County Family Court Judge Michael Nenno (See Profile), Manhattan Civil Court Judge Geoffrey Wright (See Profile), and Manhattan Criminal Court Judge Patricia Nunez (See Profile) - contend that their $136,700 salary, which has remained static over the past decade in the wake of 30 percent inflation, has been unconstitutionally diminished in violation of the compensation clause. Asked by Justice Karla Moskowitz to differentiate the claims in Maron from those in Larabee, Mr. Bezanson explained that his clients have not alleged that the Legislature's failure to raise judicial pay amounted to an "actual impairment" of judicial independence.

He also noted that in Larabee the defendants have admitted on the record the existence of "linkage," the legislators' practice of tying judicial pay raises to unrelated issues, such as campaign finance reform and legislative pay. Backed by their respective judicial associations, the Larabee plaintiffs allege that the executive and legislative branches "undermined and attacked the independence of the Judiciary" by such linking. They maintain that the yearly compensation of Supreme Court justices would have had to be raised to $175,264 in 2007 to keep pace with inflation. Since 1999, their pay, when adjusted for the cost of living, has fallen to 49th in the nation, according to a study by the National Center for State Courts. In February, on a motion to dismiss, Justice Lehner held that the judges had failed to "state a viable claim for a violation of the no-diminution clause." But in June, the judge rendered a stunning victory to the state's judges when he granted them summary judgment in Larabee. The judge gave the defendants, whom he ruled had violated the separation of powers doctrine through the "practice of linkage" to other unrelated issues, 90 days to raise the judges' pay to reflect the rise in the cost of living since 1999. A statutorily triggered stay went into effect when the defendants filed a notice of appeal in mid-July. On Aug. 27, the First Department rejected a bid by the Larabee plaintiffs to vacate the stay, but agreed to establish an expedited appeal schedule (NYLJ, Aug. 28). "Case after case notes the commonsensical view that a 30 [percent] decline in income" violates the compensation clause, Mr. Bezanson argued yesterday.

Quality of the Bench

Bernard W. Nussbaum of Wachtell, Lipton, Rosen & Katz, who represents Chief Judge Judith S. Kaye in Kaye v. Silver, 400763/08, a third pay suit, appeared as amicus curiae on behalf of the Larabee plaintiffs. Bernard Nussbaum argues for judicial pay raises before the Appellate Division, First Department, yesterday on behalf of Chief Judge Judith S. Kaye and the court system. Seated at right is Richard H. Dolan, who appeared for the state. Mr. Nussbaum agreed with Mr. Bezanson that the Third Department was "fundamentally wrong" in holding that plaintiffs must show an "adverse impact" on the operations of the judiciary. "The threat of creating [a] less than qualified bench is enough," said Mr. Nussbaum. "Basically, you are saying that the judicial salary has reached an unconstitutional level?" asked Justice Peter Tom, who presided over the panel. "Yes," Mr. Nussbaum replied. When a chief judge of the Court of Appeals makes less than even a "summer associate at my firm," it is "impossible" to attract the "competent and intelligent people you need on the bench," he added. But when Mr. Dolan was asked the same question by Justice Tom, Mr. Dolan replied, "There is no such level."

"[W]e all need to have a little more confidence in voters," Mr. Dolan maintained, who serve as the "ultimate check" on the balance of powers and have been "deeply skeptical" of backing a judicial pay raise. Chief Judge Kaye, in her suit, claims Supreme Court justices' salaries should be on par with the $169,300 a year earned by federal District Court judges. The summary judgment motion filed by the chief judge and motion to dismiss filed by the governor and legislative leaders are pending before Justice Lehner. Justices Luis A. Gonzalez and Eugene L. Nardelli joined Justices Moskowitz, Renwick and Tom on yesterday's panel. In addition to Mr. Bezanson, George Bundy Smith and J. Carson Pulley of Chadbourne represent the four judges. In addition to Mr. Dolan, David J. Katz and Eric S. Groothus of Schlam Stone represent the state and Governor David A. Paterson. Assistant Solicitor General Julie Sheridan, who represented the Assembly and Senate and did not argue before the First Department, joined in the state's papers. Bernard Nussbaum argue[d] in front [of] Judges Karla Moskowitz, Luis A. Gonzalez, Peter Tom, Eugene L. Nardelli and Dianne T. Renwick.

Tuesday, November 18, 2008

New York Times: Garcia made Corruption a Top Priority

In New York, Prosecutor Defends Spitzer Decision
The New York Times by BENJAMIN WEISER - November 18, 2008

Of all the important cases handled by Michael J. Garcia, who for three years has held arguably the most prestigious United States attorney’s post in the country, perhaps the one that drew the most attention is the case he did not file. In a wide-ranging interview on Monday, hours before he formally announced his resignation as federal attorney in Manhattan, Mr. Garcia defended his decision not to file criminal charges against Eliot Spitzer, who stepped down as governor in March after he became caught in a prostitution ring. “I think at the end of the day that decision is the right decision,” said Mr. Garcia, who made a name pursuing corrupt officials at the state and city level. “And it’s justice in that case,” he added. “And I stand by it.” Mr. Garcia, 47, said he would leave office on Dec. 1 and would be succeeded, at least temporarily, by his deputy, Lev L. Dassin, 43, a veteran prosecutor who will serve until President-elect Barack Obama chooses a new United States attorney for the Southern District of New York. In the interview, Mr. Garcia said that although there was evidence that Mr. Spitzer had violated the Mann Act, which prohibits transporting people across state lines for the purpose of prostitution, there were none of the other factors that traditionally weighed in favor of bringing charges, like the use of juvenile prostitutes, or commercial or other exploitation of them.

Mr. Garcia, disputing criticism in some quarters that Mr. Spitzer was selected for prosecution by Republican administration officials, reiterated what he said when he announced that he would not bring charges: His office began its investigation after learning of payments made in a questionable manner by Mr. Spitzer to a bank account in the name of a front company for the prostitution ring. “That’s how it came up,” Mr. Garcia said. “That is how it started.” The case was one of a number of public corruption investigations Mr. Garcia oversaw as United States attorney. When he took office in 2005, he said in the interview, he made corruption a top priority. “I just had a sense that we weren’t looking hard for those problems,” he said. His office has prosecuted several state politicians and city officials; former Police Commissioner Bernard B. Kerik; and Norman Hsu, the Democratic political fund-raiser. Most of those cases are still pending, with the defendants pleading not guilty. The office also brought a prosecution in connection with corruption in the United Nations oil-for-food program. Mr. Garcia said that a number of the cases exposed the need for greater transparency in how discretionary money is distributed by politicians, which he called “a vulnerability in the system.”

Mr. Garcia said the scandal over the dismissals in 2006 of United States attorneys, including some who were removed for political reasons, was extremely harmful because it could affect “the public perception of the reasons we do cases.” “It focused a light on that political process of appointing U.S. attorneys, and that was very unfortunate,” said Mr. Garcia, who was not himself one of those selected for dismissal. “Not only is it bad generally,” he added, “but it particularly undermines the message you’re sending out in public corruption cases.” Although Mr. Garcia would not discuss the details of how he decided not to charge Mr. Spitzer, he said he had made the final decision and was comfortable with it. “In making that decision,” he said, “and every decision, you try to think about the equities of the case, what would the charge be, can you make that charge, and how is that consistent with what the office does.” He added, “You try at the end of the day to do justice.” He said he disagreed with critics who suggested that the decision “gives a free pass to human trafficking.” He said that criticism was “not accurate if you look at the history of the cases we’ve done,” citing as examples cases in which the office had charged people in Mann Act cases, and in which extra factors weighed in favor of that, as with juvenile prostitutes. As a prosecutor in the 1990s, Mr. Garcia handled a series of major terrorism cases, including the 1996 trial in a foiled plot to blow up passenger jets over the Pacific Ocean. One man who was indicted but not arrested in that case was Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden who has said he was the principal planner of the 9/11 plot.

Since there are questions about the government’s treatment of Mr. Mohammed and the future of the detention center at Guantánamo Bay, where he is being held, some have suggested trying him in federal court solely for his role in the 1990s airliner plot. Mr. Garcia said that it was impossible to predict how the legal issues would play out in such a case, but he said his office could prosecute Mr. Mohammad if that became necessary. “We make that decision that we had sufficient evidence to prove beyond a reasonable doubt to a jury all the elements of those crimes,” Mr. Garcia said. “We’re prepared to do that. The indictment’s still out there.” As for the current financial crisis, Mr. Garcia, whose office has major investigations under way, said the meltdown exposed a variety of schemes, like predatory lending and fraud. “The swamp is draining, and we are seeing some strange things on the bottom,” he said. Mr. Garcia, who will be joining the law firm Kirkland & Ellis, expressed concern that some people in government had raised expectations that broad indictments would necessarily follow. “This is a very serious time,” he said. “People are very nervous about the market, about the economy, about their livelihood and families. And the worst thing we could do is be alarmist on either side.” “We do what we always do,” he said. “We’ll look hard. If there are violations of the law, we’ll charge them.”

SDNY Michael Garcia Out, Lev Dassin Takes Over

NY Chief Prosecutor Steps Down, Joins BigLaw
The New York Law Journal by Mark Hamblett - November 18, 2008

Southern District U.S. Attorney Michael Garcia informed the Justice Department yesterday that he will step down effective Dec. 1. Mr. Garcia, who was appointed by President George W. Bush in 2005, will join Kirkland & Ellis. Mr. Garcia, 47, told his staff of his decision to depart at a late afternoon meeting yesterday. Deputy U.S. Attorney Lev Dassin will head the office until President-elect Barack Obama names a successor. Mr. Dassin, 43, a 1990 graduate of New York University School of Law, served as a Southern District prosecutor from 1992 to 1998 and helped prosecute Ramzi Yousef for his role in the 1993 bombing of the World Trade Center. A former Kaye Scholer partner, Mr. Dassin returned to the Southern District in 2005, serving as head of Mr. Garcia's criminal division for three years until his recent elevation to deputy.

Monday, November 17, 2008

Judicial Pay Update: Citizens Class Intervention Action Filed

(Please Note: the following may have been slightly corrupted during file data transfer and may contain certain errors not found in the original paperwork..... fully corrected and pdf access to follow soon....)

JUDITH K AYE , CHIEF JUDGE , in her official capacity, and 

400763/08  (Lehner, J.)


PLEASE TAKE NOTICE, that upon the annexed affirmation of Michael Diederich, Jr., dated October 9, 2008, and the accompanying proposed Intervenors’ Complaint and Intervenor’s Brief, the movant Michael D. Diederich, Jr. will move this Court at the New York County Supreme Court, 60 Centre Street, New York, NY 10007,at an I.A.S. Part before the Hon. Edward H. Lehner, J.S.C., on Friday, November 28, 2008, at 10:00 o’clock in the forenoon or as soon thereafter as counsel may be heard, for an order:

1.   Allowing movant Michael D. Diederich, Jr., and the other named intervenors, to intervene in the above-captioned matter as of right under CPLR 1012(a) orby permission under CPLR 1013, and permitted to file and serve the annexed proposed Intervenors’ Complaint within 30 days after notice of entry of an order granting this motion;

2.   Granting leave for the intervenors to substitute with actual people or entitiesfor some or all of the “John Doe,” “Joe Citizen” and “John Doe BarAssociation” and “John Doe Citizen Group” fictitious intervenors, when filing the Proposed Complain or within 60 days thereafter;

3.   Declaring the above entitled action to be deemed a class action pursuant to CPLR 901 and CPLR 902;

4.   Allowing the intervenors (but excepting movant Diederich, if he elects to serve as attorney of a class) to proceed as representatives of the class;

5.   waiving notice to the class, or alternatively, authorizing the method offurnishing notice to the class to be one or more Internet postings upon an appropriate State website, or with other reasonable and economical notice;

6.   allowing oral argument on this motion on a date and time established by the Court;

7.   if intervention is denied, that these paper be accepted as an amicus curiae submission, and that these motion papers be included in any record on appeal;

8.  granting such other and further relief as to this Court may seem just and proper. The above-entitled action seeks the increase of salaries for New York’s judiciary, which relief may include a prospective increase in judicial salaries in an unspecified amount, and also the retroactive grant of salary to present or former members of thejudiciary. The Intervenors in the proposed Intervenors’ Complaint, unlike Chief Judge Kaye, are individuals actually aggrieved by an underpaid judiciary, and unlike Chief Judge Kaye, have standing to challenge judicial compensation which is constitutionallyinadequate, because inadequate compensation deprives New York’s citizenry of rightswhich depend upon a sound judiciary, such as the right to petition government through access to the courts, the right to due process and equal protection of the law, and theguarantee of republican form of government bound by the Rule of Law. Pursuant to CPLR 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before any adjourned return date of this motion.

Dated: Stony Point, New York November 13, 2008
Attorney for proposed Intervenors and class
361 Route 210
Stony Point, NY 10980
(845) 942-0795


Attn: Bernard Nussbaum, Esq.
51 West 52nd Street 
New York, NY 10019-6150
(212) 403-1000/2000(fax)

Michael Colodner, Esq. 
N.Y.S. Office of Court Administration
25 Beaver Street, 11th Floor
New York, NY 10004
(212) 428-2150/2155 (fax)

David Lewis Esq. 
Lewis & Fiore 
225 Broadway, Suite 3300
New York, New York 10007 
(212) 285-2290; 212-964-4506 (fax)

Richard H. Dolan
Schlam Stone & Dolan LLP
26 Broadway
New York, NY 10004 

Andrew Cuomo, N.Y.S. Attorney General
Attn: Joel Graber, of counsel
120 Broadway
New York, NY 10271
(212) 416-8645/6009 (fax)

JUDITH KAYE , CHIEF JUDGE , in her official capacity, and 





Michael D. Diederich, Jr., an attorney at law duly admitted to practice in all of theCourts of the State of New York affirms under penalty of perjury as follows:

1.  I am submitting this Affidavit in support of the motion for permission to intervene, and for class action status, both in my capacity as the attorney for the proposed Intervenors and class, and as a proposed Intervenor pro se. 

2.  This motion is brought as a public interest endeavor, and as such requests theconsent of the plaintiffs and defendants herein, and receptive consideration from theCourt. The proposed Intervenors’ Complaint is attached hereto. See, annexed.


3.  Your affiant has for some time been interested in the operations of State and local government in this State, and has frequently represented public interest and taxpayer causes concerning such governments. 

4.  While your affiant is sympathetic with the economic circumstances of State judges who have not received a cost of living increase in their pay, your affiant also believes that any remedy must be in accordance with sound principles of good government, and in accord with the State and federal constitutions.

5.  I am certainly a small “country lawyer” when compared to politically connected and economically powerful law firms who have very conveniently sided “with the judges” on the issue of pay raises in this and related litigation. 

6.  Yet small lawyers representing weak individual clients are entitled to justice, and the specter here is that of “connected” law firms seek even greater judicial favor than they seemingly enjoy, while at the end of the day, the “average citizen” will enjoy no increased favor whatsoever, even though it will be citizen-taxpayers’ tax dollars which fund any pay raise which the judiciary obtains for itself. Request for Intervention

7.  Your affiant respectfully submits that the proposed Intervenors should properly be granted intervention both as of right, under CPLR 1012(a), and as a matter ofdiscretion under CPLR 1013. 

8.  The perspective of the Intervenors, as summarized in the Prefatory Statementintroducing the proposed Intervenor’s Complaint, articulates the overview of theimportance of intervention.

9.  In connection with this application, the undersigned hereby incorporates thefacts set forth in the accompanying Proposed Intervenors’ Complaint as if fully restated here.

Intervention as of Right

10.  As to intervention by permission under CPLR 1012(a), intervention should begranted because the representation of the Intervenors’ interest by the parties is inadequateand the Intervenors (individually and the Class they seek to represent) will be bound bythe judgment.

11.  Depending upon which side prevails, the Intervenors will face a hike in Statetaxes to pay for increased salaries, or a potential diminution in judicial work and thus an impact on litigants and their constitutional rights. 

12.  As set forth in the accompanying Intervenors Complaint, the Plaintiff ChiefJudge Kaye does not have proper standing to assert the claims she makes, which claimsare asserted in a capacity (purporting to represent the Judicial branch of government)which may, it seems, be offensive to her oath of office as she argues for the nullification of the Legislative and Executive power of the purse over the Judiciary. This infirmity iscured if the argument for an increase in judicial salary comes from the People, through the Intervenors, as is requested here. 

13.  Moreover, as mentioned above, the Attorney General suffers frommultifarious conflicts of interest if he were to become involved in this case, and thus theaddition of the point of view of the citizen is necessary because otherwise, in this case, the interests of the People of the State are not represented. The citizens of this Stateelected the Attorney General to defend the State against lawsuits, and to represent the three branches of State government. The Attorney General cannot adequately representthe People here, because the People’s interests sides with the Plaintiff’s, but only in amanner which also respects the State and federal constitutions, including the mandates ofboth for checks and balances, separation of powers, and adherence to the Rule of Law. In the related Larabee v Governor action, the Attorney General has not raised theimportant legal issues of the First Amendment right to petition and of the federalGuaranty Clause’s assurance to the citizens of the States of a republican form ofgovernment (art. IV, § 4). These are concerns which this Court should address, as theyare vital to the People, and the absence of such further reveals that representation of thePeople is presently inadequate. (The Attorney General is hereby notified of such issues, per CPLR § 1012(b).)

14.  Intervenors’ property right to their tax dollars, right to expect a governmentwhich respects its own constitution and its separation of powers, and their constitutionalright to a competent judiciary which hears and properly adjudicates cases, are all rightsdirectly affected by an increase or non-increase in judicial salaries. The Intervenors aredirectly affected no matter which way this case is decided. 

15.  Accordingly, Intervenors must be granted intervention as of right and theCourt should so order.

Permissive Intervention

16.  As to intervention by permission under CPLR 1013, intervention should beliberally allowed, particularly where there are common questions of law and fact. See, Teleprompter Manhattan CATV Corp v. State Board of Equalization and Assessment, 34 AD2d 1033 311 N.Y.S. 2d 46 (3d Dept. 1970). Here, there are precisely the same questions of fact and law, with the principal importance of the Intervenors presence beingthat they have both the standing and the independence to truly represent the citizens ofthe State. 

17.  Moreover, the Intervenors have a real and substantial interest, because it is their State government which is at stake, and their right to have checks and balances, and to have their representatives appropriate their State tax dollars, which is at stake. 

18.  As shown in the proposed Intervenors’ Complaint, the Intervenors have a realand substantial interest in the outcome of the litigation. Most importantly, theIntervenors’ involvement is necessary because without it, the interests of the Intervenors, and the Citizenry of the State of New York, will be jeopardized in the Intervenors’absence. Request for Class 

Action status

19. This action is best prosecuted as a class action, pursuant to CPLR 901 and CPLR 902. Intervenors’ motion therefor must be granted.

20.  The members of the class are (the “People” class) are all citizens and residents of the State of New York. 

21.  It is also appropriate to have another class, or perhaps a subclass, comprised of those individuals who have been denied or restricted in the ability to seek redress fromthe courts of the State of New York, including but not limited to its Appellate Division and the Court of Appeal (the “Denied Judicial Review” sub-class).

22.  The undersigned is available to diligently represent either and both classes, and is also willing to work with other attorney(s) or law firms, with the approval of the Court, toward the end of proper adjudication of this case in the interest of “the People” ofthe State of New York.

23.  Pursuant to the CPLR, the following is presented in support of this motion forclass status.

24.  This action was commenced by service of summons and complaint on State Legislative and Executive defendants by the Plaintiff Chief Judge and Unified CourtSystem, and issue was joined, upon information and belief, that the parties’ views that thelawsuit should be resolved by summary disposition. 

25.  The complaint seeks injunctive and declaratory relief, and perhaps damages in the form of a retroactive grant of salary to judges of the State’s unified court system. 

26.  The named proposed Intervenors, as indicated in the proposed Intervenors’Complaint, are citizens, residents, property owners, and taxpayers of the State of NewYork. Some have been aggrieved as a result, they believe, of an under-compensated State judiciary. 

27.  As State citizens, voters and taxpayers, the Intervenors have a real and genuine interest in the proper and lawful operation of their State government, and as Statetaxpayers, a financial interest as well. 

28.  The Intervenors’ proposed complaint is verified by the undersigned. 

29.  Plaintiff Kaye is the non-elected Chief Judge of the Court of Appeals of theState of New York, the highest judicial official of the State. 

30.  Plaintiff “Unified Court System” is, upon information and belief, a partydesigned to include all judges elected or appointed into judicial offices which are part of the Unified Court System, and characterized by Plaintiff Kaye as the judicial branch of New York State government. 

31.  Defendants are the State Senate, Assembly and Governor, namely, the duly elected representatives of the People forming the Legislative and Executive branches of State government.Description of the Complaint

32.  The proposed Intervenors’ Complaint alleges in substance that the Plaintiffs are seeking legislatively unappropriated funds for judicial compensation, and retroactive compensation. Standing alone, both requests are unauthorized by any express provision of the N.Y.S. Constitution. 1 

33.  On the other hand, the proposed Intervenors present constitutional argumentsfor increasing judicial compensation, if evidence adduced at trial support such, summarized as follows:a) that inadequate compensation for the judiciary will inevitably result in, and hasresulted in, depriving the citizenry their federal and state constitutional right to beable to petition their government (namely, the judiciary as to legal disputes), b) that inadequate compensation for the judiciary will inevitably deny citizensjustice, the Rule of Law and a republican form of government, thereby deprivingthe citizenry of the basic rights guaranteed by a liberal democracy, and 1 E.g., Article VII, §7 of the New York State Constitution provides in relevant part:No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of suchappropriation act; and every such law making a new appropriation or continuing orreviving an appropriation, shall distinctly specify the sum appropriated, and the object orpurpose to which it is to be applied; and it shall not be sufficient for such law to refer toany other law to fix such sum. c) the Plaintiffs’ lawsuit is a direct attack upon the doctrine of checks and balancesand separation of powers fundamental to the structure of both the federal and theState constitutions and as such any relief granted by to the Plaintiff Chief Judgewill deprive the citizens of New York State of their federal guaranty of a“republican form of government,” namely, representative democracy. 

34.  Your Affiant, as an intervenor, is of the view that the Plaintiff Chief Judge, who has sworn an oath to uphold the Constitution of the State of New York should not betaking action designed to erode its separation of powers, nor to seek relief which expressly violates the State constitution’s mandate that funds expended must beappropriated by the Legislature. Here, the Plaintiffs attempt to obtain funds for theJudiciary outside of the constitutionally-mandatory appropriations process. This effortalso appears to be an insult to representative democracy. 

35.  Thus, plaintiffs request that this Court authorize the Intervenors’ Complaint asproperly undertaken in the form of a class-action.

Notice to Members of Class

36.  Because this action is brought primarily for injunctive or declaratory relief, notice of the pendency of the action need not be given to the class because this is notnecessary to protect the interests of the represented class. See, CPLR § 904(a).37. Alternatively, if notice is required, Plaintiffs submit that fully adequate noticewould be a posting upon the State Judiciary’s, Legislature’s and/or Governor’s Internetweb pages, or through other cost-effective means.


38.  Intervenors are both citizens and voters in the State of New York, and includeindividuals who have been personally aggrieved by the dereliction of an (underpaid) judiciary to review legal matters as the Judicary should, thereby denying them Federaland State constitutional rights, including but not limited to their First Amendment right to petition government. 

39.  Similarly, plaintiff as taxpayers who taxes fund the State government havestanding, as they have a real and genuine stake, and financial interest, in this controversy. Other than these Intervenors, there is no likelihood of anyone challenging what might beviewed, and what might in fact be, a collusive lawsuit (since all the governmental playersseem in accord that the Judiciary is deserving of a pay raise. 

40.  Thus, Intervenors have the citizen-taxpayer standing permitted under theteachings of Boryszewski v. Brydges, 37 NY2d 361, 372 NYS2d 623, 334 NE2d 579 (1975).

41.  Moreover, because the potential for constitutionally unauthorized “judicial appropriation” of compensation for judges, and the additional possibility of retroactivecompensation (amounting to an unconstitutional gift of taxpayer dollars), plaintiffs, upon information and belief, have standing not only under Boryszewski, but also under StateFinance Law § 123-b, and under Civil Service Law § 102(1), as taxpayers, to bring thisaction to restrain such illegal authorization of compensation. 42. Your affirmant served one year in Iraq (2004-05) with the U.S. Army as a JAG officer, and is a strong believer in the Rule of Law and America’s adherence to the Rule of Law and our constitutional principles. This is one motivation for this application.

WHEREFORE, your affirmant requests that the Court grant intervention and classcertification so that the people of the State of New York are provided with representation and an appropriate, fair and constitutionally authorized remedy.Affirmed this 13 th day of November 2008, at Stony Point, New York.





(400763/08 (Lehner, J.)



The Intervenors herein, by their attorney Michael Diederich, Jr., complaint of the Defendants as follows: 

Prefatory Statement 

This is the complaint of the Intervenors, who as citizens of the State of New York, seek to assist in preserving representative democracy and individual liberty in the State, by ensuring that the Judiciary is compensated in a manner and amount which allows it to protect theconstitutional and democratic rights of the citizenry. The citizenry has the right under both theFederal and State constitutions to petition State government for the redress of grievances. The State provides this right by providing for judicial review through civil actions and appeals. Thisright is denied if underpaid judges cannot, or will not, perform the judicial role of reviewing allcases properly presented. The Judiciary possesses exclusive authority for adjudicating individual lawsuits, and interpreting the law. It has the responsibility for guaranteeing individual liberties established by the State and federal Bill of Rights, in protecting the Rule of Law, and in preserving the republican form of government guaranteed by the federal constitution (art. IV, § 4). Yet Chief Judge Kaye’s complaint mentions nothing of these citizens’ rights and vital interests.

Respectfully, the People’s interests are not safeguarded by the Judiciary making a self-serving plea, to itself, to increase its members’ compensation. If it approves its own request, it is beholden only to itself, and not the People. It is fundamental to our Democracy that the government, including the Judiciary, deriveits power from the People. Thus, the only proper party to assert that the Judiciary isinadequately compensated is the citizenry, and the only proper constitutional basis is that an inadequately compensated judiciary deprives the People of constitutional rights. Because onlythe Intervenors have put forth viable cognizable constitutional claims, and because only theIntervenors have standing to assert such claims, the Intervenors’ Complaint is appropriate and necessary for the proper adjudication of this case. 


1.  The Plaintiff’s and Defendant are as identified in the Chief Judge Kaye’scomplaint (hereinafter “Complaint’). 

2.  Intervenor Michael D. Diederich, Jr. is a citizen, resident and taxpayer of theTown of Stony Point, County of Rockland, State of New York, and the United States ofAmerica. 

3.  Intervenor Association for Advancement of Judicial Integrity is an unincorporated association of individuals whose interest is the fair, impartial, diligent and non-partisan adjudication of civil cases in the State of New York. 

4.  Intervenor “John Doe,” which may also include a “John Doe Bar Association”and/or a “John Doe Citizen Group,” is a fictitious party representing actual persons, barassociations or other associations or entities potentially interested in and capable of providingvaluable input into and evidence regarding the issues relevant to this case. 


5.  Upon information and belief, the Complaint sets for a fully adequate description of facts suggesting that judicial compensation in New York State judges has declined, in realvalue, to a level which may be unfair and inadequate for some or all of the State’s judges to livein the manner to which they have become accustomed, or to which they aspire. However, upon information and belief, the Complaint does not articulate a legalbasis for increasing judicial compensation. 

7.  Upon information and belief, the means chosen in this are not proper, and raise the prospect for an appeal of an adverse decision to an inferior intermediate appellate court, and then an appeal from such court to the Court of Appeals, over which Plaintiff Chief Judge Kaye presides. The Chief Judge of the State of New York is asserting to an inferior State court that salaries are constitutionally inadequate. Thus, Chief Judge Kaye’s lawsuit is a judicial challenge which entails the judiciary adjudging its own compensation, notwithstanding that both the State constitution and the doctrine of separation of powers gives the power of the purse to the People’s representatives, namely, the Legislature with veto power residing with the Governor. 

8.  Upon information and belief, Chief Judge Kaye’s Complaint is an argument for increased salary based only upon perceived unfairness, but ignoring the basic principle that the Legislature, with its members the duly elected representatives of the People, holds the power ofthe purse. 

9.  Plaintiff Kaye seeks to expand the doctrine of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) to stand not only for the proposition that the courts are the final arbiters ofthe law, but also the final arbiters of their own salaries, and that the judiciary can unilaterallyalter the balance of power between the branches of State government. Upon information and belief, Chief Judge Kaye’s arguments are neither constitutionally nor governmentally sound. 

10.  On the other hand, if members of the judiciary are being threatened by pauperism, such that their work for the People and the performance of judicial duties are impacted to a constitutional degree, the challenge of inadequate pay should emanate from the People themselves. The People have standing, because they are aggrieved.

11.  The members of the judiciary, in contrast, have no standing to complain, as theyare the employees of the People. No one forced them to take the job. And the Judiciary itself(purportedly represented by Chief Judge Kaye in her “official” capacity) has no standing as a co-equal branch of government seeking through judicial fiat to nullify a constitutional “check and balance,” by co-opting the legislature’s power of the purse over judicial compensation. 

12.  Chief Judge Kaye’s complaint, it seems, alleges that the People directrepresentatives—the Legislature and the Governor—are essentially depriving the People of aJudiciary which the People are entitled to. 

13.  This, though, is merely a (institutionally self-interested) presumption on Chief Judge Kaye’s part. If the People wish a defunct judiciary (as arguably they already have adefunct Legislature), or an underpaid judiciary, or a demoralized judiciary, or an incompetentjudiciary, or a corrupt judiciary, this would appear at first blush to be the People’s choice, as amatter of basic representative democracy. 

14.  The Complaint’s argument that the judiciary deserves more pay so that its judgesare “adequately” compensated, presumably so that they can adequately and competently serve, could just as well be made by the members of the Assembly and Senate—“we too have not had a pay raise since 1999 and are underpaid by the standards of private industry, and thus we are incompetent, demoralized and (sometimes)corrupt, so we must be paid more as ‘adequate’ compensation so that we will beable to competently perform,”or the Governor—“I get paid far less than the leadership of private corporations. I even get paid lessthan some small town police chiefs in New York State,” 1 or by other public sector lawyers, engineers and other professionals—“I get paid far less than what is paid in the private sector, for work which is ofvital importance to the public and the public interest,” 1 As pointed out by Intervenors’ counsel in taxpayer litigation refused to be entertained by Chief Judge Kaye’s court.See footnote 3, infra. or by other worthy people or organizations, such as public defender or legal aid attorneys—“we are competent lawyer too, seeking to defend citizens’ legal and constitutionalrights, yet we are paid a pittance compared to the other lawyers of comparableskill, competence handling similar matters—and the judiciary treats us as second class professional citizens.”

15.  Of course, the answer to each of the above individuals, who believe their pay istoo low, is simple—“if you don’t like or cannot exist on the current your current salary, “resign”and “get a better job.”Fidelity to the People, and adequate pay, are needed for judiciary quality

16.  The option of resignation may be a good one for a highly skilled yet demoralized judges (or lawyer, or other professional), because such individual undoubtedly could earn morein the private practice of law. 

17.  Moreover, if resignations enticed other qualified individuals to decide to enter thepublic sector, and to work for “inadequate” compensation in the job of State court judge, thebenefit to the public could be immense. 

18.  Your Intervenors believe that many law professors, law school deans, and distinguished large firm or corporate lawyers, especially those approaching retirement, might beinterested in serving as judges in our State courts. 

19.  On the other hand, if the resignation of good judges were to result in less qualified or unqualified individuals being selected for such elective office through political processeswhich favor party loyalty and patronage over job qualification, the public interest will suffer and the People’s rights harmed. 

20.  Upon information and belief, an increasing number of State judges are selected primarily based upon consideration of political patronage, not qualification. Too many individuals seek State judgeships for the compensation package, and the perks, including the status of the title “supreme court justice” (the “supreme court” being the lowest court of general jurisdiction in New York State).21.Upon information and belief, if the Judiciary better policed its own, more than afew unqualified or marginally qualified judges might be eliminated from the bench. It is neitherin the public’s interest nor the Judiciary’s interest for poor judges to be adjudicating cases which they adjudicate poorly. The Judiciary should insist that the loyalty of the bench be first and foremost to the People and to Justice. 22.Upon information and belief, the Judiciary will better police its own, and root outthe incompetent and the corrupt, if the Judiciary recognizes that the People desire justice and arewilling to pay for it by rewarding judges with fair compensation. 23.Judges who are financially and politically independent have no need to decidecases on any ground other than justice and the law. 24.As reported in an article by Mark Fass of the New York Law Journal dated August 25, 2008, in the face of the threat of judges who recuse themselves from cases to protestlegislative inaction regarding pay raises, the County Judges Association of the State of NewYork adopted a resolution supporting “the recusal of any New York State Judges, as a matter ofpersonal conscience, in regard to their ability to be fair and impartial due to the controversysurrounding Judicial compensation or related litigation.”25.However, each such recusal, upon information and belief, implicates the litigant-citizens’ right to petition government and to due process of law. 

26.  If the Judiciary sees that the People care about justice and are willing to compensate judges fairly for it, it may be willing to better police itself. If the Judiciary respectsthe People, political cronyism may be reduced and so too corruption.

Fairness to judges

27.  As Chief Judge Kaye articulates very well, it is fundamentally unfair for a person who has chosen public service in the judiciary to suffer a declining real salary (due to inflation)during years and years of competent and faithful service. 

28.  It is demoralizing, and it invites disdain for the workings of democracy. The workings of democracy may be perceived by judges as evidencing a lack of appreciation by thePeople for the faithful service of the judiciary. This, in response, may breed judicial hostilitytoward the People, as reflected, for example, in increasing hostility towards the right of thePeople to seek redress from and access to the Courts. 

29.  The citizenry is frequently denied “standing” to bring a claim to court, for no reason it seems other than the court’s unwillingness to trouble itself with the citizen’s claim. This reflects judicial hostility toward the citizenry for whom judges are supposed to serve.

30.  Thus, when judges are demoralized, the work of the courts will certainly suffer, and, of much greater significance, the People right to petition the judiciary for redress may bedenied. The Citizenry, not the Judiciary, is the proper Plaintiff

31.  Respectfully, it is the Citizenry, not the Judiciary, who is the proper party to beposing the challenge to inadequate judicial compensation. Only the citizenry is aggrieved, in alegal sense, if inadequate compensation results in inadequate adjudication.32.Neither Chief Judge Kaye nor the judges suing as individuals in the related casebefore this Court, Larabee v Governor, have standing to sue, because they are not personallyaggrieved in a constitutional sense. 2 2 Cf., Maron v. Silver, 504084, argued before the Appellate Division, Third Department, on September 3, 2008.

33.  Because no independent representative of the Citizenry has stepped forward otherthan the Intervenors, the Intervenors, individually and as a class, will seek an adjudication of thislawsuit which strikes the proper balance between the three branches of State government, with proper checks and balances, while keeping the interest of the People paramount.

34.  It is the citizenry which pays the salaries of the judiciary, and it is the citizenrywhich suffers from judicial incompetence, inefficiency, demoralization, or mislaid loyalty. If theJudiciary receives a pay raise as a result of Chief Judge Kaye’s lawsuit, the salaries will be paid by the citizenry. 

35.  The Intervenors’ property right to their tax dollars is directly affected by a Judiciary-directed increase in judicial salaries, especially one not supported by a legislativeappropriation (a constitutional requirement). 

36.  Thus, it is the citizenry who should receive the Judiciary’s gratitude for any payincrease. However, by virtue of the manner in which judicial compensation litigation has been presented, both here and in similar pending lawsuits by other judges, it is Chief Judge Kaye, the other judges, and their “pro bono” legal counsel who will undoubtedly be seen as deserving credit if judicial compensation is increased. 

37.  If Plaintiff Kaye wins here, success will lie solely with her, with not one iota of credit due the People. This is a strong reason for allowing the citizenry to be allowed to intervene here, and be accorded the status of a proper plaintiff, so that the members of theJudiciary recognize that they owe the People, not themselves, any credit for their pay increase.

38.  Moreover, the public should not be satisfied with a lawsuit where the Chief Judgeis asking subordinate judges to adjudicate in the State judges’ own self-interest, with no inputfrom the most important player, the State’s citizenry. 

39.  Upon information and belief, Chief Judge Kaye would agree that the Judiciary’sloyalty must always be to the People. 

40.  The Intervenors are appropriate and necessary in this lawsuit. No one else hascome forward. The Intervenors’ can serve as an “honest broker” vis a vis the three branches ofState government and the question of judicial compensation. The Court has the power to ensurethat this is so.

41.  Importantly, the public is not represented by the attorneys for the Senate, or for the Governor and Assembly. These attorneys cannot represent the public. The attorneys for the Senate, or for the Governor and Assembly, are unable to represent the People as to the central issues in this case, because their litigation interests do not correspond with the People’s interests. What the Legislature and Governor have done is to hire highly skilled counsel to defend againstChief Judge Kaye’s Complaint. Their counsel have competently defended, and for many of thereasons stated in this Intervenors’ Complaint, namely, that Chief Judge Kaye does not havestanding, and judicial compensation is not a cognizable grievance for State judges to proffer. 

42.  However, what is not argued by the attorneys for the Senate, and for the Governor and Assembly, is that there exists a potential viable constitutional the grievance regarding inadequate judicial compensation, and that grievance belongs to the People.

43.  If “inadequate” salaries result in an incompetent or corrupt judiciary, it is not the judges, some of whom may be incompetent or corrupt, who should be accorded standing to complain about the level of salary. Rather, it is the People who should be afforded standing to insist upon a level of salary sufficient to maintain a competent and honest judiciary.

44.  This is what the Intervenors will advocate for—compensation which maintains a competent and honest judiciary—because upon information and belief, the facts will support the need. 

45.  Thus, the People’s interest is not to dismiss the complaint. Nor is it simply to give Chief Judge Kaye what she requests for her judicial colleagues. Rather, the People’s interest is a factual determination (preferably by jury trial) that the People are aggrieved, and their constitutional rights denied, by inadequate judicial compensation. A class action and prompt trial are appropriate.

46.  The obvious means for the People’s voice to be heard in this is for the citizenry to be represented by the Intervenors in this lawsuit. The Intervenors can best providerepresentation for New York’s citizenry. Because no other person or entity has stepped forward to represent the People’s interests, the need for intervention is manifest, for the sake of the public interest.

47.  Moreover, especially if certified as a class action, the Intervenors’ counsel will undoubtedly then be able to obtain the active involvement and participation of many other interested individuals and groups. This is such an important subject that individuals such as law professors, civically involved lawyers and retired lawyers of repute, bar associations and publicinterest organization will undoubtedly wish to become involved, and the undersigned will solicittheir involvement. 

48.  If the best governmental and legal minds in the State are willing to volunteer theirtime and effort to become involved, for example, by contributing as witnesses in this litigation, the benefit to the public interest and the fair adjudication of this case will be obvious. The resultwill be the best and fairest resolution by the Court of the issue of judicial compensation.

49.  In a fashion similar to that proposed by Plaintiff Kaye’s proposal for an immediate trial in this case, this Court could hold an prompt trial (perhaps upon Intervenors’motion for summary judgment on liability) on one issue alone—whether the existing judicialsalaries, and salary non-increase, impacts upon the citizenry’s constitutional rights, such as itsright to petition government, to due process of law, to equal protection, and to the Rule of Law.Citizen-taxpayer standing

50.  Upon information and belief, as citizen-taxpayers of the State, the Intervenors must be accorded standing to challenge inadequate judicial salaries because as citizens and taxpayers they suffer cognizable harm if judicial salaries are inadequate. The courthouse doorsmust not be closed to Intervenors who are in the best position to represent the interests of thecitizens of the State, where the three branches of government are in conflict. See, e.g, Boryszewski v. Brydges, 37 NY2d 361, 372 NYS2d 623, 334 NE2d 579 (1975).51. If the Judiciary is inadequately paid, as Intervenors believe to be the situation, there are likely many tangible adverse consequences to the citizenry. For example:a. Justice delayed or denied;b. Denial of First Amendment right to petition;c. Unequal protection—the poor get ignored, while the rich with their powerfullawyers are heard;d. Deficient adjudication of cases;e. Less competent or incompetent lawyers becoming members of the bench;f. Political considerations and cronyism influencing case adjudication; andg. The invitation to self-dealing, cronyism, political favoritism and corruption.

52.  Thus, the “aggrieved party,” if anyone, is the People—the citizenry of the State. As such, there is no better Plaintiff than the People themselves. The Intervenors can best represent the People. And the Court can certainly ensure that the Intervenors are properlyperforming this role. 

53.  The correct Defendant is the State of New York—including all three of itsbranches of government. 

54.  Arguably the Senate and the Assembly are also proper defendants, because theiraction and inaction has stymied any increase in judicial salary since 1999, but a proper defendantis also the judiciary itself, because to the extent that demoralized judges do not properly performtheir jobs, the citizenry is deprived of its right to honest government, to the services of thejudiciary, and of their right to petition government through the judiciary. 

55.  The Legislature and Governor, we are told, have ganged up on the Judiciary. Thethree branches are obviously in political conflict here. 

56.  Accordingly, a representative of the People is needed to put forth a legal claim, rather than a political one. The Intervenors have properly put forth the appropriate legal claims.The Intervenors’ counsel, Mr. Diederich, has a proven record of pursuing the public interest, and where appropriate challenging the judiciary and calling it to task. The case, and the interests ofjustice, will be significantly advanced with the Intervenors’ needed participation herein.

Intervenors’ federal court alternatives

57.  Plaintiff Chief Judge Kaye is petitioning the judiciary to order to obtain a payraise for the judiciary, paid for by the taxpayer of the State of New York, yet without theapproval of the taxpayers’ elected representatives, namely, the Legislature and the Governor. This, respectfully, is an affront to the citizenry. It is a request which on its face violates basicprinciples of separation of powers, and to the extent that retroactive monetary relief is sought, ofthe New York State constitution’s prohibition of gifts of taxpayer money.

58.  What Chief Judge Kaye fails to insert into her complaint is any constitutionalclaim relating to the rights of the citizenry. She refuses to acknowledge that a demoralized judiciary may be unwilling to do the People’s work, or that a demoralized judiciary may becomeso incompetent after attrition that it is unable to do the People’s work. 

59.  Upon information and belief, a sufficiently demoralized judiciary becomes athreat to the individual liberties of all citizens, the Bill of Rights, and even to the “republican form of government” guaranteed by article IV, § 4 of the federal constitution. 

60.  Upon information and belief, if Chief Judge Kaye were interested in protectingour citizens’ constitutional rights, including federal rights, she could, and should, have broughtthis action in federal court, rather than State court. The federal venue would have permitted amuch more impartial and disinterested forum (the federal courts) for adjudicating theconstitutional claims (State and federal, institutional and individual rights) which are, or should be, litigated in this case. 

61.  Instead, Chief Judge Kaye chose to ask her subordinate judges to adjudicateclaims in which her subordinate judges have a personal financial stake. This places the lowercourt judge in an awkward position, to say the least. 

62.  On the other hand, if the Intervenors herein become the lead plaintiffs, with Chief Judge Kaye taking a back seat or withdrawing from the case, the trial judge is placed in a much less awkward position, and much less conflicted position, because it is the representatives of thePeople, not the Chief Judge, who become the advocates for appropriate relief. 

63.  The Intervenors will request a trial by jury. Such request will assist the trial court, even if trial court permits merely an advisory jury, because there will be the benefit will be theappearance and reality of impartiality, and the integrity of the system thus be benefitted.

64. If intervention is not granted, the facts will not change (absent a Legislative grantof increased salary). The proposed Intervenors will therefore have the right to file thisIntervenors Complaint as a complaint in an original action in federal district court, assertingthese same claims. The federal judiciary can (if it chooses to do so) appropriately entertain such a case, and grant the relief which Intervenors seek here. 

65.  However, as a matter of judicial economy and federalism, it is certainly preferablefor the New York Judiciary to put its own house in order, by granting intervention here. TheIntervenors will seek the equitable relief which is best for the People of the State of New York. Standing of Intervenor Association for Advancement of Judicial Integrity66.Intervenor Association for Advancement of Judicial Integrity includes membersinterested in good government, and an excellent judiciary. 

67.  It also includes some members who have been aggrieved by judicial action which, the individuals believe, are a result of malfunctions in the system, some malfunction of which may be tied to the State’s system of selection and compensation of judges. 

68.  Intervenor Diederich, as Intervenors’ counsel, will ensure that any testimonyoffered in this regard, if any, is relevant and material to the important public issues at hand. Standing of Intervenor Diederich

69.  Intervenor Michael Diederich Jr. (hereinafter “Diederich”), and Iraq veteran, hasa strong interest, both as an individual citizen and as an attorney who represents clients, in having a Judiciary which properly performs its job, and is adequately compensated to do so. 

70.  Specifically, Diederich has represented numerous clients as a solo practitioner, which clients were not afforded, upon information and belief, proper judicial review, or in somecases any judicial review, because a perhaps underpaid judiciary did not have sufficient human resources or motivation to examine the legal matters presented.

71.  Intervenor Diederich has also brought public interest taxpayer litigation which, upon information and belief, did not receive proper judicial review, or in some cases any judicialreview, because the judges were inadequately paid, and beholden to interest other than thePeople’s interest. 

72.  For example, in numerous public interest litigations, Intervenor Diederich hassought to protect county and State taxpayers by bringing challenges to governmental fraud, wasteand abuse of tax dollars in the State courts. Yet Intervenor Diederich has been met with a lack ofinterest by the courts, including non-review by the Court of Appeals on matters which appeared, on their face, to clearly to be “of right” appeals. 3 Standing was denied at the trial court, the Appellate Division and the Court of Appeals, and thus the taxpayers’ right to petition Stategovernment, through the judiciary, was denied. 

73.  Thus, Intervenor Diederich has standing as a citizen and taxpayer, and as an attorney representing clients seeking to exercise their right to petition the courts.

74.  Neither Intervenor Diederich nor the other Intervenors seek to redress anypersonal grievances, or re-litigate any lawsuits, in this civil action. Therefore, there is no need to here burden the Court with the specifics of judicial misfeasance depriving litigants ofconstitutional rights, except to say that the Intervenors are prepared to do so if requested to do so by the Court for the purpose of establishing standing. 

75.  Ironically (perhaps), at the same time the Chief Judge was apparently considering retroactive pay raises for judges, Intervenor Diederich was handling appeals which sought 3 See, e.g., Diederich v. Rockland County Police Chiefs Assn, infra, where ultimately certiorari was denied by theUS Supreme Court in 2007; Concerned Citizens of Stony Point v. Town of Stony Point, 28 A.D.3d 657, 813N.Y.S.2d 227, (2d Dept. 2006 ); McNamara v. Appellate Division, where ultimately certiorari was denied by theUS Supreme Court in 2007; Save our Open Space v. Planning Board of South Nyack, 256 A.D.2d 581, 682N.Y.S.2d 869 (2d Dept. 1998).On the other hand, Intervenor Diederich’s arguments to the federal courts persuaded the US Supreme Court torule in favor of the citizenry, and local democracy, in an area of environmental law/commerce clause jurisprudence.See, United Haulers Assn, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007). adjudication that the retroactive gift of taxpayer money is unlawful under article VIII, §1 of New York’s constitution. 4 No review was afforded, with the Court of Appeals denying an appeal which appeared clearly to be one “of right” because it involved a substantial constitutional issue—the retroactive gift of taxpayer money is unlawful under article VIII, §1 of New York’s constitution. Thus, truly aggrieved taxpayers were denied standing, where, in contrast, here Chief Judge Kaye (seeking in part retroactive pay for judges) alleges standing yet is in no way aggrieved. 

76.  These facts reveal why it is important for taxpayers, not government officials, to be plaintiffs here. 

77.  Upon information and belief, the claims set forth in this Intervenors’ Complaintare proper claims for a federal court, and also this Court. The best approach, consistent with principles of federalism, is for the State itself to provide a solution to the serious issues raised both by this Intervenors’ Complaint, and by Chief Judge Kaye’s complaint. 

78.  Upon information and belief, if the Judiciary was compensated adequately, and cognizant that its compensation is from the People and paid generously so that the Judiciary willkeep its fidelity to the People, the above-described cases would have been heard by the courts, not ignored without any hearing. 

Class action status desirability

79.  Upon information and belief, because every citizen of this State is affected by thequality, competence and integrity of the State’s judiciary, a class action wherein the Intervenorsherein serve as representatives of the People is the most appropriate vehicle for properlyadjudicating the relief which may be appropriate in this litigation. 4 See, Diederich v. Rockland County Police Chiefs Assn, 8 N.Y.3d 1018, 870 N.E.2d 689, 839 N.Y.S.2d 449 certdenied sub nom McNamara v RC Police Chiefs Assn, 128 S.Ct. 539 (Nov. 5, 2007).

80.  Upon information and belief, the motion paper requesting class certification, incorporated by reference herein, fully justify a grant of class status.


81.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

82.  Upon information and belief, an inadequately compensated Judiciary inevitablyleads to a judiciary wherein individual judges become demoralized, apathetic, unmotivated and subject to disincentives to properly perform their work and manage their case loads. 

83.  Upon information and belief, an inadequately compensated Judiciary may also lead to a judiciary wherein individual judges become disaffected and hostile to the Peoplebecause the People (through their elected representatives, the Legislature and the Governor)support a system which “rewards” hard judicial work with decreased real compensation. Judgesmay thus become less interested in protecting the rights of citizens, because the citizenry, through its elected representatives, have refused to recognize good work by providing reasonableor even adequate compensation. 

84.  Upon information and belief, an inadequately compensated Judiciary invites third rate candidates for judicial office, the candidacy of political hacks, and less than fully qualified candidates for the State’s judiciary. 

85.  Upon information and belief, an inadequately compensated Judiciary invitescronyism, improper political patronage, party boss influence, and corruption.

86.  Upon information and belief, the above vices are inherent in human nature, and will certainly eventually co-opt many if not most of the members of Judiciary, in some degree, atsome point in time. 

87.  For example, if salaries eventually become so low as to pauperize sitting judges, such members who are not otherwise financially secure will need to take measures to provide forthemselves and their families, and it is naive and unrealistic to believe otherwise. 

88.  Therefore, it is inevitable that litigants’ cases will not be given the attention which the cases are due, and that some litigants will not be permitted the meaningful consideration which they are due. 

89.  Thus, upon information and belief, inadequate compensation will proximatelydeny the State citizens of the First Amendment right to petition their government, and Fourteenth Amendment right to Due Process of Law, notwithstanding the guarantee of such right by theUnited States constitution and New York State constitution. 

90.  Intervenors, and the State citizens they seek to represent, are aggrieved thereby, and seek equitable relief on behalf of the People of the State and citizens likewise situated. 


91.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

92.  The federal Constitution guarantees the citizens of each State a “republican formof government.” See, Art. IV. § 4. 5 5 Which reads, in part: “The United States shall guarantee to every State in this Union a Republican Form ofGovernment, ….”

93.  The Supremacy Clause make this guaranty the supreme law of the land. See, Art. VI, cl.2. 6 

94.  Unlike, for example Baker v. Carr, 369 U.S. 186 (1962), the present case is notone which involves a non- justiciable “political question.” On the contrary, it involves whether denying adequate compensation denies the People government adequate for a republic.

95.  Upon information and belief, New York’s inadequately paid judiciary has refused to uphold the Rule of Law, as one or more of the Intervenors have observed and/or experienced. 

96.  The underpaid judiciary has not upheld State and federal constitutional mandates, thereby depriving New York’s citizenry of the Rule of Law—the most basic characteristic of arepublican form of government.

97.  Upon information and belief, inadequacy of judicial salary impairs the Rule of Law to such an extent, and reasonably and profoundly threatens to do so, that the People of the State are denied of their federal constitutional right to an democracy governed by the Rule of Law, namely, a “republican form of government.”

98.  Intervenors, and the State citizens they represent, have been aggrieved thereby, for which equitable relief is sought for the benefit of the People of the State of New York and citizens likewise situated.


99.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 6 Which reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; andall Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of theland; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to theContrary notwithstanding.”

100.  Article VII, §7 of the New York State Constitution provides in relevant part:“No money shall ever be paid out of the state treasury or any of its funds, or anyof the funds under its management, except in pursuance of an appropriation bylaw….” (emphasis added)

101.  Unless Plaintiff Kaye requests that the Judiciary direct that the Legislature beordered to appropriate additional compensation—something which would appear to be an affrontto the separation of powers—Plaintiff Kaye will be asking the Judiciary to ignore the State constitution’s methodology for expending State funds. 

102.  Upon information and belief, such a request infringes upon the Intervenors’ rightto have their State government operate in a constitutional manner. 

103.  Moreover, upon information and belief, Plaintiff Chief Judge Kaye may be exceeding her oath of office, by requesting an inferior court to “order … fixing the salaries for the judges of each State-paid court” and to “order … the State timely to remit to the judges … such amounts as directed by the Court….” See, Prayer for Relief contained in Plaintiff’s Complaint dated April 10, 2008, at ¶¶ 4 & 5. 

104.  Furthermore, the Plaintiff Chief Judge seeks that such order be retroactive, beginning with a period of time which is “a dated no later than April 1, 2005.” Id. 

105.  Upon information and belief, such retroactive gift of taxpayer monies, besides being without a legislative appropriation, is also an unconstitutional gift in violation of the Stateconstitution. See, N.Y.S. Constit., art. VII, § 8. 7 

106.  If appropriate in light of countervailing constitutional considerations, it may be appropriate for Intervenors, as taxpayers, to seek to restrain an unconstitutional disbursement of 7 Art. VII, § 8 states, in part:“1. The money of the state shall not be given or loaned to or in aid of any private corporation orassociation, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking,….” taxpayer funds to the judiciary, which action is authorized by State Finance Law § 123-b, as wellas under Civil Service Law § 102(1).

107.  Upon information and belief, the Plaintiff Chief Judge, who has sworn an oath to uphold the Constitution of the State of New York should not be taking action designed to erodeits separation of powers, nor to seek relief which expressly violates the State constitution’s mandate that funds expended must be appropriated by the Legislature, and not be gifted through retroactive grant. 

108.  Upon information and belief, the Judicial Plaintiffs are not proper parties to assertclaims which are designed to trump the constitutional separation of powers between the branchesof State government. Such assertion injures the rights of the Intervenors to the constitutional operation of State government. 

109.  On the other hand, the Intervenors are eminently proper parties, as citizens, to assert that underfunding of the judiciary can find a remedy in the Courts, if such underfundingrises to the level of constitutional insult to the rights of the Intervenors and of the People. 

110.  Upon information and belief, Plaintiff Kaye presents much sound documentation as to the underfunding of the judiciary. Yet, the infirmity of Plaintiff Kaye’s argument is thatPlaintiff Kaye, as representative of a coordinate branch of government, is not a proper party, noris the Plaintiff Unified Court System, because they essentially represent one branch ofgovernment attempting to trump, and override, the constitutional powers of another branch. 

111.  The Intervenors, on the other hand, represent the People, whose interest is the sound interrelationship between the branches of State government, including the constitutional mandate for, and necessity of, checks and balances between the branches of State government. Intervenors seek to restore the constitutional balance, if such is needed to preserve theconstitutional rights of the People. 

112.  The best means of preserving representative democracy in the context of thislawsuit is, upon information and belief, to allow the Intervenors to assist the Court in striking thecorrect constitutional balance between the branches of government, while respecting the most fundamental hallmark of American government, namely, that it is “government of the people, by the People, and for the People.” 


113.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

114.  Upon information and belief, the Plaintiffs, in arguing for the “independence” of the judiciary, have forgotten the principle of checks and balances, and separation of powers, and most importantly, that the People, through their elected Legislators and Governor, hold the power of the purse.

115.  Accordingly, the Plaintiffs have utterly disregarded the possibility that the elected branches have not provided pay increases because the Legislature, on behalf of their political constituents (the People and special interests groups), view the judiciary as unworthy of a pay increase. 

116.  The Intervenors, and the citizenry of the State, are aggrieved if their interests, and their opposition to unconstitutional action requested by Plaintiff Kaye, are not considered. 8 See, Abraham Lincoln, GETTYSBURG ADDRESS, November 19, 1863.

117.  The Intervenors represent only the People, and no special interests, and can diligently serve as an honest broker as between the Plaintiffs and the Defendants herein, cognizant that all three branches of government belong to us, the People. 

118.  Upon information and belief, it is not those responsible for decreased judicialsalary who will influence whether or not a judge adjudicates a case fairly when called upon to decide in the future. Rather, it will be those viewed as responsible for a judicial pay increase. The People must be involved. 

119.  Unless the People are represented in this litigation, judges may view with gratitude the government for bestowing the pay raise upon judges, not the citizenry. This isdangerous to the People, because some in the Judiciary may be inclined toward bias against thecommon man (or woman). This creates a terrible conflict, because adjudication is often:“between the Government and the man whom the Government is prosecuting;between the most powerful individual in the community and the poorest and mostunpopular,”  

120. Upon information and belief, it is dangerous precedent for the judiciary to indulgein self-reward, outside of the structure created by the State’s constitution. Abrogating thedoctrine of separation of powers will incline the judiciary towards arrogance, based upon theself-created unilateral power it here seeks. Unchecked power imperils the Rule of Law. 

121.  Moreover, if Plaintiffs prevail in the case as presently presented, the attorneys representing the People’s elected representatives (the Legislature and the Governor) will have“lost,” and the judiciary will owe its gratitude and great moral indebtedness to the powerful law 9 See, Plaintiffs’ MOL opposing Defendants’ motion to dismiss, at page 36, quoting Chief Justice Marshall, asquoted by Justice Breyer in Williams v. United States, 535 U.S. 911, 920-21 (2002. 10 See generally, AL GORE , THE ASSAULT ON REASON (2007), pp. 221-228. firms (Plaintiffs’ counsel 11 and a supportive amicus curiae attorneys 12 ) and the attorneys 13 in theallied Larabee v Governor, 2008 NY Slip Op 28217 (June 11, 2008)(presently on appeal), which powerful large firm efforts will have won the pay increase. 

122.  Thus, upon information and belief, granting a pay raise, in the case as presentlypostured, poses the threat of inclining the judiciary to recognize that it owes no debt whatsoeverto the “poorest and most unpopular,” or even the “average citizen,” but instead owes its pay raiseto its Chief Judge’s powerful “pro bono” law firm and, perhaps too, the powerful political interests. 

123.  Absent allowing intervention, the People (including their interest in the proper functioning of government, the Rule of Law, and in justice administered through the courts) becomes superfluous. 

124.  Upon information and belief, the fatal defects in Chief Judge Kaye’s lawsuit can be cured by permitting the citizen input from the Intervenors herein. 

125.  This Intervenors’ Complaint may help solve the problem of inadequate judicialcompensation, and do so in a manner whereby the Judiciary can recognize that it is the People, not its own self-serving interests and those of its large firm attorneys, who deserve the credit forany pay raise. The Judiciary will, Intervenors hope, better appreciate that it is the People who are entitled to the dedicated, diligent, competent and loyal service and fidelity of State judges. 

126.  The outcome will be principled constitutional decision-making in the interest ofthe People. Intervention is required to achieve this end. 11 This is in no way meant as a criticism of Plaintiffs’ counsel. Ideally, a grassroots campaign from citizens such asthe Intervenors, supported by a public interest law firm, would have made more appropriate original plaintiffs. 12 The powerful law firm Weil, Sotshal & Manges, LLP, with its lead attorney the former N.Y.S. Solicitor General,Caitlin J . Halligan, representing the Fund for Modern Courts. 13 The powerful law firm Chadbourne & Parke and is attorneys Thomas E. Bezanson, George Bundy Smith and J.Carson Pully. 

WHEREFORE, the Intervenors pray for the following relief:a. A grant of class status for the Intervenors, allowing them to prosecute this lawsuitas a class action under CPLR §§ 901 and 902, with the undersigned counsel(and/or other counsel for the class approved by the Court) representing the class;b. Jury trial on the issue of whether inadequate judicial compensation deprives thecitizens of New York of their federal constitutional rights, including their rights to petition government, to due process, to equal protection, and to a republican formof government;c. Interim relief, including the creation of a Commission, or appointment of aSpecial Referee, or Special Counsel, or (as an amicus curiae has suggested) aquadrennial commission, to assist the Court and the Intervenors regarding theconstitutional claims which the Intervenors raise herein;d. Granting the declaratory relief sought herein, including a declaration that it is thePeople’s right, rather than the right of the Judiciary and individual membersthereof, to have a Judiciary which is sufficiently compensated that the People’sconstitutional rights are ensured, and to declare that compensation must beincreased if the facts so warrant in light of the Intervenors’ constitutional claims;e. Potential equitable relief as provided for by State Finance Law § 123-b and CivilService Law § 102(1);f. granting Intervenors’ herein an award of costs and reasonable attorney’s fees, including if necessary or appropriate, interim attorney’s fees; andg. such other and further legal and equitable relief as the Court may find just and equitable in the circumstances. Dated: Stony Point, New York November 13, 2008. 

Attorney for Intervenors, Class & Pro Se
361 Route 210
Stony Point, NY 10980
(845) 942-0795

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

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

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