The Proof is in the Pudding

I always begin my legal research on any case (a set of criminal charges against my client) with the end in mind. The government and their lawyers (the prosecutors) have the burden of proof. In other words they are the offense. They must move the ball to the end zone. I play defense. They must make all their proof of the crime beyond a reasonable doubt in the minds of the jury.

The first thing I do is look at the Set of Specific Jury Instructions for that Charge. This set of directions is what the Judge will specifically tell, instruct, and order the Jury to do. It is crucial to to form my defense step by step against the prosecution's case. The second thing I do is study cases and case law that may show fact patterns similiar to my client's situation. These usually demonstrate how the Courts have ruled on similiar evidence (the proof).

The expression “the proof is in the pudding” has been around for hundreds of years. It is a metaphor that means "only believe things that can be proven." Juries should never make assumptions or believe what they are told without something more. That something more is making the facts apply to a clearly defined law and set of rules.

Every criminal charge has things (called elements) to be proven. The jury acts as a “fact finder” in this role. They are given the law and the rules of proof to be applied to these set of facts by the Judge.

What the Judge gives the Jury is a set or sets of instructions. A determination of Guilty or Not Guilty of a criminal charge hinges on the Jury’s understanding and application of the Jury Instructions.

Various criminal charges have different sets of instructions that the Jury must follow. For example, the criminal charge of Aggravated Unlicensed Operation of a Motor Vehicle in the 3rd Degree, a Class A Misdemeanor. Vehicle and Traffic Law section 511 (1)(a).

The Jury Instruction is as follows:

In order for you (the Jury) to find the defendant (the accused) guilty of this crime, the People (the Prosecution/the Government) are required to prove, from all the evidence in the case beyond a reasonable doubt, each of the following two elements:

1. That on or about (date), in the county of (county), the defendant operated a motor vehicle on a public highway; and

2. That the defendant did so while knowing or having reason to know that his/her license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked, or otherwise withdrawn by the commissioner.

Therefore, if you find that the People (the Prosecution/the Government) have proven beyond a reasonable doubt both of these elements, you must find the defendant guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.

On the other hand, if you find that the People (the Prosecution/the Government) have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.


The crucial element that the Prosecutor must prove is that you had knowledge that your license or privilege was suspended, revoked, or withdrawn.

The key question in the case is:

Did you know or have a reason to know you were driving without a license or privilege?

There are various ways that the prosecution can prove their case which are all fact dependent. If you lost your New York driving privileges or your license was taken by a Judge at a hearing it will be hard to argue you did not know you did not have a license or permission to drive a car.

On the other hand, what if there is proof (you changed addresses, you had mail problems) that you never received any notice (a letter) from the Court or the New York DMV of a license suspension due to an unpaid ticket, unpaid fine, or a failure to pay a reactivation fee? That argument may be accepted by a Jury as reasonable doubt of your lack of knowledge or having reason to know of your license suspension.

Ultimately the proof in every case is dependent upon what can be shown to the Jury. Criminal defense attorneys not only work with the facts that are visible, but seek out the invisible but discoverable facts that can help a client’s case. The goal is to show that the facts presented by the prosecution are unclear, conflicting, and do not prove the elements of the crime beyond a reasonable doubt. Juries need to be shown common sense reasons to find doubt within the Government’s proof. Afterall, remember that it is always the Government’s burden, not yours, to prove every element of your legal guilt to the standard of beyond a reasonable doubt.

Document Review Hippies

Want to work in San Francisco? If the below posting is in anyway legitimate, get ready to jump through some not so ordinary hoops in the application process. One of the people that alerted me to this ad wasn't very pleased:

"The hypocritical smelly ex-hippy that posted this ad needs to get a life. There are already enough alleged "creative" types on these document review projects, we don't need more. Scrounging for work in crowded, bug infested basements to pay off Sallie Mae, an organization which needlessly funds the extravagant lives of useless "progressive" law professors and administrators is not my idea of urban chic, it is just plain dumb. This job listing is an insult to us older folk that depend on these positions to feed ourselves. Here's the posing:

"Is document review more like a Tweet, a Digg or sex? (West Coast)

---------------------------------------------------------
Reply to:docreviewrocks@gmail.com
Date: 2009-05-28, 10:37PM PDT

*****THIS IS A LEGITIMATE POSTING, SOMEWHAT IRREVERENT, BUT LEGITIMATE*****

Why do we want to know?

Well, we're building a team of highly disruptive document reviewers and want to know if you're the kind of legal professional who would do well with our brand of mayhem.

Here's what we can tell you:
You will be respected.
You will be trained.
You will be paid.
You, in return, will rock.

You may rock legal document review high.
You may rock legal document review low.

But, you WILL rock.
Because you will be one of the Chosen Few.

So, draw some analogies, use a few metaphors, knock yourself out with philosophical smoke as the legal spirit moves you, --so long as it's 3 paragraphs or less.

Then, attach that resume to us in TEXT format.
No PDFs. No flippin' Word documents. Just plain old text....???...
OK: "text" means, you can either include your life story plus considered analysis in an email,-- or you can attach a .TXT or .RTF file.

Don't know what those are? Look it up.
We expect you to have more than a modicum of initiative...."modicum"???...Look it up.

And, no bullshit, OK? Because we're gonna find out what you're made of before we put you on one of our document review projects.
So, if you're stoked to reduce thousands of documents to a series of intelligible narratives, we want to know you're out there looking for work.

If you're one of the few who effin' get it, then let's do this thing!
Right now, we don't care where you are. If there are enough of you in any one city, we'll come to you.
Send us the stuff here, and we'll get back to you.

Like soon."


Another reader's proposed response. Very creative:


"My response: Document review is defintely not like sex unless you're into staring at blank walls. It's more like a bad relationship. Most of time, it doesn't come through. When it does, it feels so good. Call me the Super Doc Reviewer of the San Francisco Bay Area. I'm lightening fast and highly accurate. Clicking through docs and checking boxes may not be most folks' thing. However, I get a natural high when I find docs that can really help my side's case. But here's the deal. I can't allow mere common folks to know my secret identity. The only ones who get this privilege are the document review temp agencies. So if you happen to be a real agency, send me your name and Web site. Then I'll send my resume that will reveal my real name."

The New York DMV finally enters 2009!

I sometimes get excited about little things. Through the passage of time I have witnessed a revolution and evolution in the way law is practiced. When I practiced law in Philadelphia in the 1990s the Courts downtown were still requiring some Complaints (lawsuit) to be "typed" (they supplied old typewriters), and handed in with "carbon" based copies. In the early part of 2001 Philly was only one of a few PA cities that were beginning to process requests for police reports, and the filing of small claims with an online website.

One of the great things about Ithaca, NY is our DMV is small, fast, and relatively quiet. Compared to most big city DMVs it is practical (nice parking) and easy to get in and out of. On most days I can walk in and request a DMV driving abstract for one of my clients, and walk out with one in minutes. So why am I excited today? The NY DMV has finally approved the use of Online Driver Improvement Courses to reduce points and insurance costs. It only took till this year for the NY DMV to enter cyberspace with approved online driver improvement courses when we have been having online degrees for College diplomas for almost two decades. The University of Phoenix has offered online degrees since 1989.

I-PIRP is the acronym for Internet/Alternative Delivery Method Point and Insurance Reduction Program. They also have approved other ADM (Alternative Delivery Methods) such as courses utilizing DVDs, CDs, Video, and Cable.

I checked out the four Internet based and approved DMV course providers.

www.NewYorkSafetyCouncil.com

Cost $48.95, no mention of discounts for students, very basic "chunky" website, this is probably the lowest tech site of the four.

www.MyimprovNewYork.com

Cost $37.95, this one gets my vote for fun and funny, jokes, video, and easy to view website.
Check out this corny joke from my Improv, "S.T.O.P. stands for Slow to Observe Police"
This course is formatted for a 5th grade reading level so you will not be too mentally challenged.

www.idrivesafely.com/NY

Cost $48.95, more advanced website than NY safety council, but still compared to My Improv NY very boring! These courses are all 320 minutes in length, so for 5+ hours boring is not fun!

www.NewYorkDefensiveDriving.com

Cost $49.95 but discounts for seniors, students, military personnel, and Veterans. Very content laden, educational, and easy to use website.

So NOW you can finally spend under $40, and five hours of your life in the comfort of your home to do two important things:

1. Receive a benefit of a 4-point reduction on your NY driving record. See Below for clarification.

2. Receive a 10% insurance discount on your New York auto insurance rates.

Once you complete one of the approved programs (whether class based or I-PIRP) you will receive a certificate and a notice which will then be entered on your DMV driving record, and the DMV computer will automatically reduce your active point total by up to four points.

It is Important to remember that the completion of a course under the
I-PIRP "Internet Point & Insurance Reduction Program" or the class based program does NOT remove, delete, subtract, or erase any violation, conviction, or notice of original number of points from your driving record.

Even after you complete the course, most violations, conviction and points assessed will continue to show on your driving record for up to four years. Violations and convictions involving drugs or alcohol will remain on your driving record for ten years. "Point reduction" only means that the New York DMV will not count up to four points on your driving record toward license revocation or suspension.

The BATs: Breath Alcohol Tests

This past Memorial Day weekend was exciting in many unexpected ways. My family and I live in an big, old Victorian house built around 1889. It has a certain charm or charms about it. Tin ceilings, beautiful wood triple moldings around everything, floor to ceiling windows abound... I guess it makes me long for a time when people enjoyed alittle more and savored details. To balance things out, it lacks many modern amenities like a master bath, central air, bedroom closets, or a usable garage.

Our home is also conveniently located two blocks from the Courthouses in Ithaca, NY. I have a home/office combo because the house is huge, and I am beyond the need for a traditional office in my untraditional life and lifestyle. I am not a bricks and mortar type of lawyer. All of my bar and college diplomas sit in my basement. I have doctorate degrees in Chiropractic, as well as law, and am a member of the PA, NY, NJ, and FL bars but I do not feel the need to display my credentials upon a wall. I moved to Ithaca three years ago to specifically abandon my bluetooth, my offices, and sitting in my car for hours in traffic. I wanted away from the big cities with all the honking, parking, driving, and pollution issues. My iphone keeps me in touch with faxes, emails, texts, the internet, and all phone calls. I am in a word "connected" to people and a world of information. My clients can have all my numbers because they will talk directly to me. I focus my practice on the defense of DWI because it allows me the time and energy to devote my attention and commitment to a smaller amount of cases. My philosophy of Quality over Quantity rules my life and practice.

I walk alot now. I can actually name alot of flowers and birds. My lawyer and doctor friends from college think I should get a psych eval. Anyway, last week I had an exterminator treat our home for wasps and bees. That night I saw my first bat flying in my living room. My wife and kids freaked out. I did not want to (it would not leave through an open window) but I had to kill it. The next morning we awoke to two more bats. Bats are like flying rats. My wife left the house that morning to go outside and run . As leaving she said she was not coming back until "they" were gone. I thought on that one for awhile, and decided that I did want my wife to come back. So after many calls to wildlife removers on a memorial weekend Saturday went nowhere, I suited up in my bat gear. On went my gardening gloves, long sleeves, baseball hat, my weapons of choice: a tennis racket, and a broom. I proceeded to kill and squash two more bats. Which brings me to today's blog....

The Breath Alcohol Test.
How do we attack and kill a real B.A.T.????

Alvin Toffler said, "The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn and relearn".

I think Toffler had it right. I am constantly learning, unlearning, and relearning. The best analogy for attacking the BAT was given to me by an expert in the field, Jan Semenoff. When I attended his seminar on Breath Alcohol Testing he likened the breath testing process like spokes on a wheel and the result (the number), the BAC, the bullseye in the middle. The spokes support the hub, the target number, they give it validity:

A Maintenance Spoke- was the machine properly and regularly performed?
A Calibration Spoke- was the machine calibrated, when was it calibrated, and how was it calibrated?
A quality control Spoke- was the simulation solution in the machine changed and when?
A training Spoke- was the operator of the machine trained and currently licensed?
A Procedure Spoke- were proper machine procedures followed?
A Operator Error Spoke- Did the operator of the machine make any mistakes?
A Operator Malfeasance Spoke- Was the operator's intent to be accurate in question?
A Sampling Error Spoke-Was the breath sample proper in space and time?
A Radio Interference Spoke- Was there any Radio Frequency Inter. present during testing?

Additional Spokes in our wheel analogy are:

A hardware design Spoke-
A software design Spoke-
A Environmental Factor Spoke-
A External Verification Spoke-
A Accuracy Spoke-
A Precision Spoke-
A Specificity Spoke-

If we can break the "spokes" of the machine's support wheel, if we can loosen them, if we can damage them, or if we can get rid of a few of them the wheel will fall apart. The machine (the wheel of validity) no longer has all it's supports. The breath alcohol number, the final result, the bullseye, the target BAC (breath alcohol test result) which points to legal guilt is now compromised, it is now debatable, it now an uncertain number, it is no longer a number "beyond a reasonable doubt." The BAT is then dead, and can no longer hurt us.

Viacom Presents..........

Hell on earth.

"Asking about horrible places to work, Viacom is the worst of the worst.

Working in a small, overcrowded room under the worst possible conditions with no benefits. The case manager was like an animal.

Before the weekend we were asked who wanted to work and who didn't (strictly voluntarily). The people who didn't work were called over the weekend without warning and told not to come back. There was no indication there was any price to not working the weekend.

This is why Viacom is consistently rated one of the worst companies to work for.

Lest you think they only treat temps like shit, last December "the dreaded Viacom" laid off 850 people without warning.

Sumner Redstone famously said "Viacom is me" and fired people like Tom Cruise, Dan Rather, and Les Moonves at the drop of a hat. He's a senile bully."

Of Barbers, Boxers, and Bingo Operators

I am often asked by my clients what a criminal conviction to a DWI or other misdemeanor will mean to their future job prospects in New York State. I am proudly a native New Yorker, Brooklyn born, raised, and a graduate of the School of Hard Knocks. Although, I now enjoy the practice of criminal defense law in beautiful and picturesque Ithaca, NY.

The more I learn of the legal quirkiness inherent in the New York laws I shudder and chuckle. My blog today centers on how a prior criminal convictions can affect the application for a professional license in New York State.

A Barber's license, Boxer's license, and Check Cashier license are all discretionary in NYS. For a Boxer or Wrestler or Check Cashier making application for a NY license that means they may be refused a license (a permission) to box or wrestle or cash checks professionally if the applicant has been convicted of a crime or is consorting with anyone convicted of a crime. Consorting is defined as to keep company or associate with. NYS is mindful of those you choose to hang out with. Your friends may cost you a license.

For those holding a Barber's license, any crime or offense involving moral turpitude or for habitual substance abuse can trigger a suspension or revocation of that license.

Bingo Operators and Distributors are barred a NYS license for a conviction for any crime under Executive Law section 435 (2)(c)(l).

Licensed Electricians can have their ability to earn a living supended or revoked if convicted of a crime under NYC Admin Code section 27-3016 (1)(vii). Interestingly Licensed Plumbers face no such restrictions. Sanitation Workers may be punished or dismissed for conviction of any legal offense, conduct injurious to public peace or welfare, or immoral conduct under NYC Admin Code section 16-106. In NYS the unlawful possession of marijuana (UPM) is considered an offense, so technically speaking you could lose your job as a garbage man for having a joint.

Which brings me to the GOOD NEWS, to the many professional occupations in which a criminal misdemeanor conviction pose NO restrictions to obtaining a NYS license:

You can rest easy knowing you can be an Accountant (CPA), Acupuncturist, Architect, Attorney, Baby Chick Seller, Chiropractor, Controlled Substance Manufacturer, Dental Hygienist, Dentist, Deputy Sheriff, Engineer, Insurance Securities, Midwife, Nurse, Nutritionist, Occupational Therapist, Optometrist, Pharmacist, Physical Therapist, Physician, Physician's Assistant, Podiatrist, Psychologist, Securities Broker, Social Worker, Speech Pathologist, Teacher, or Veterinarian with a criminal conviction on your record.

To all those with dreams of being a Professional Bingo Operator, Boxer, or Barber I promise to do my best to fight whatever charges loom against you in the future. In the meantime, take a deep breath and realize the world of possibilities for future NYS licensure in so many wonderful professions will not be impacted by a misdemeanor DWI or other criminal conviction.

The Moving Student's Dilemma ... AUO- Aggravated Unlicensed Operation 3rd

One of the most common phone calls I receive is for representation on AUO charges. Often people do not know why they were arrested for this charge. Under New York Motor Vehicle and Traffic Law section 511, Aggravated Unlicensed Operation in the third degree (AUO 3rd) is classified as a misdemeanor, a crime punishable by up to 30days in jail, up to $500.00 in fines, mandatory State Court surcharges, and points against your driving record.

Ithaca College and Cornell Students frequently change addresses over the course of their many years of study. These changes in living arrangements may cause them to miss, lose, or misplace their mail. Moving residences also mean lots of boxes of papers, mixing of documents, and resulting confusion. Within the ensuing melee, things like DMV papers, and speeding tickets may be misplaced or forgotten.

btw You must notify the New York DMV of any permanent changes in your address within 10 days of moving.

SEE NY DMV website:
You must notify the DMV when you move to a new address.
• You have a maximum of 10 days after you move to notify the DMV.
• You must report the change of address at a DMV office, by phone, or by mail. You cannot report a change of address by e-mail.
• You cannot change your address when you complete a transaction on-line.

Unfortunately, when you were pulled over (stopped) for some other violation, commonly speeding, or possibly an equipment violation, and then come to find out that your driver's license is also suspended or revoked it may be a shock to be arrested.

Maybe it was because a ticket from years earlier was never paid, or worse a town or village Court clerk never sent the proper paperwork to the DMV.

Whatever the reason behind the charge, it must be dealt with immediately. If you accrue more than one charge of AUO (aggravated unlicensed operation) the fines and penalties increase dramatically, all the way to a Felony AUO 1st, which has a very real potential for jail time.

In the majority of cases I am able to figure out the underlying suspension issues, rectify them with these town or village Courts, request for the Court to allow time to clean the driver's DMV abstract, and then negotiate a non-criminal disposition (usually a violation) with the prosecutor.

Depending upon the underlying driving history this process can range from a few Court appearances to many. I had one Cornell graduate student with outstanding fines in three different Courts, hundreds of miles apart, and over a 3 year period of time. In this particular case his roomates never forwarded his mail. Speeding tickets over this long time period all got lost. It took me four months, a dozen letters, and numerous calls and faxes before I was able to help him clear and negotiate all his old charges, and resolve the AUO 3rd charge with a simple traffic violation. His Cornell graduate degree notwithstanding he was infinitely more employable with a valid driver's license.

A Summary of 2nd Circuit Judge Sonia Sotomayor's Opinions in Civil Cases

Judge Sotomayor’s Appellate Opinions in Civil Cases
Posted By Tom Goldstein On May 15, 2009 @ 10:49 am In Commentary and Analysis
LINK

Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court. We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information: her opinions as an appellate judge. Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions. Amy Howe subsequently revised and expanded their work, with contributions by me.

Here, we make our first effort at summarizing what we regard as Judge Sotomayor’s principal opinions in civil cases. Our only goal is to identify and summarize the opinions, not evaluate them.

A summary of additional civil cases, as well as Judge Sotomayor’s leading criminal law opinions will follow.

CIVIL LITIGATION

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter). Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Abortion Rights: Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights. Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves. Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

First Amendment - Speech: Sotomayor has considered First Amendment issues relatively infrequently. In addition to Center for Reproductive Law and Policy (just discussed), one of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”

In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

More recently, in Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as appointments as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association. Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”

First Amendment - Religion: In addition to her dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), discussed below, in Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam. Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam. But in Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002), Sotomayor wrote an opinion holding that an inmate’s First Amendment rights were not violated by prison officials’ monitoring of his mail - prompted by the inmate’s receipt of a book with the title “Blood in the Streets: Investment Profits in a World Gone Mad” - because the inmate had previously caused disturbances and the prison needed to forestall security problems.

Civil Rights: During her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination. In these cases, she has often - but not always - sided with the plaintiffs.

Sotomayor’s dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination. Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer. Sotomayor agreed with the majority’s decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination. In her view, the transfer was “unprecedented and contrary to the school’s established policies”: white students having academic difficulties, she noted, received compensatory help, whereas Gant - the “lone black child” in his class - was not given an “equal chance” but was instead demoted to kindergarten just nine days after arriving at the school.

However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees. Similarly, in Williams v. R.H. Donnelly Co., 368 F.3d 123 (2004), she wrote an opinion holding that an employee alleging racial (as well as gender) discrimination had not proven she was the victim of discrimination when her employer declined to create a position for her when the employer had never created a position for any particular employee.

In two cases, Sotomayor has voted to sustain claims alleging a hostile work environment. In Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), she wrote for the panel in a case brought by a Hispanic woman alleging, inter alia, claims arising from a hostile work environment, failure to promote, and retaliation. The Second Circuit affirmed the district court’s dismissal of the failure-to-promote and retaliation claims but reversed the district court’s decision granting summary judgment on the hostile work environment claim. Citing the allegations of racial slurs by the plaintiff’s supervisor and sexual harassment, as well as the plaintiff’s assertion that she was fired “under the pretext of fighting in the workplace after she was physically beaten and sexually assaulted,” the panel acknowledged that “Cruz might have stated her claim of hostile work environment harassment more artfully,” but emphasized that “the essential elements of the charge do appear in the complaint.” And, the panel continued, the “physically threatening nature of [the supervisor’s] behavior, which repeatedly ended with him backing Cruz into the wall . . . brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment.” Moreover the opinion noted, “a jury could find that [the supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa.”

And in Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), she was part of a panel that considered hostile work environment and retaliation claims by a female police officer who was allegedly denied desirable shifts, threatened with physical violence, and implicated as a “rat” in front of her male co-workers. The district court had granted the defendants’ motion for judgment as a matter of law. In rejecting Raniola’s hostile work environment claim, it described the “camaraderie of a precinct house,” which lacks “some of the niceties of expression.” With Sotomayor writing, the Second Circuit reversed. In the panel’s view, Raniola had presented enough evidence to take both her hostile work environment and retaliation claims to a jury. With regard to the hostile work environment, it emphasized that during a two-and-a-half-year period, “Raniola was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm.” And it rejected the district court’s “conclusion that ‘there is no evidence that plaintiff herself felt that the use of barnyard expletives directed to her or others made her work environment offensive.” Similarly, although all of the disciplinary actions at issue took place after Raniola transferred to another precinct, her former supervisor’s role “in prosecuting her charges, the timing of the prosecution, and the surrounding events all lend support to Raniola’s retaliation claim.”

Sotomayor has rarely written in age discrimination cases. However, she authored a forceful dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), a case involving a minister who filed suit under the Age Discrimination in Employment Act (ADEA) after he was forced by his church to retire at the age of 70. The district court dismissed the claim; on appeal, the Second Circuit reversed, holding that the Religious Freedom Restoration Act (RFRA), which - subject to certain exceptions - prohibits the government from substantially burdening the exercise of religion, had effectively amended the ADEA by providing a defense for ADEA violations. In her dissent, Sotomayor complained that the majority had “violate[d] a cardinal principle of judicial restraint” when it - unnecessarily, in her view - held that the RFRA was constitutional. Moreover, she deemed the panel’s decision to remand the case to the district court for briefing on the RFRA issue “a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties.” Instead, she would have affirmed the district court’s dismissal and held that the ADEA does not apply to employment suits against religious institutions by their leaders.

Sotomayor has been perhaps most sympathetic to claims of discrimination arising from a disability. In Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000), she was the author of an opinion that followed decisions of other circuits applying Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA), holding that the case should be remanded to the district court because the plaintiff satisfied the elements for a prima facie case of discrimination based on disability. And she has twice dissented from the majority’s decision to deny a discrimination claim. In EEOC v. J.B. Hunt Transportation, Inc., 321 F.3d 69 (2d Cir. 2003), she would have held that the plaintiff had made out a prima facie case of disability discrimination because the defendants rejected all applicants for long-haul truck driving who took certain medications. See also Nielson v. Colgate-Palmolive, 199 F.3d 642 (2d Cir. 1999) (citing Goldberg v. Kelly for the proposition that “the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard” and arguing that when “a party exhibits a limited ability to understand a proceeding affecting her rights, the court must undertake even more strenuous efforts to explain the process”)

Sotomayor has twice weighed in on retaliation claims: in Raniola (described above) and in Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004). In Raniola, Sotomayor wrote an opinion in which the panel agreed with the plaintiff that her suspension, probation, and termination occurred in retaliation for her discrimination complaints: one week after Raniola filed a complaint, her supervisor told her that he would give her a poor work evaluation, transfer her from her precinct, and charge her in administrative proceedings. This evidence, along with witness testimony, provided a reasonable basis to find that any legitimate reasons for her termination were pretext for retaliation. However, Sotomayor wrote an opinion rejecting retaliation claims in Washington, in which the plaintiffs - African-American correction officers - were subjected to administrative disciplinary proceedings after filing discrimination complaints. The panel agreed that the administrative proceedings had adverse employment consequences on the plaintiffs, but in her view those adverse consequences, standing alone, did not demonstrate retaliation.

In Malesko v. Correctional Services Corp., 229 F.3d 374 (2000), an inmate who served time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation sought to sue the corporation (and its employees) for injuries that he suffered in the halfway house. In an opinion by Sotomayor, the court of appeals reversed the district court, holding that the inmate could bring a Bivens action against a private corporation acting under color of federal law. Such a result, she explained, “furthers Bivens’s overriding purpose: providing redress for constitutional rights.” Moreover, in the absence of any allegations that the government played a role in the “various policies or practices [that] led to” the inmate’s injury, the corporation was not shielded from liability under the government contractor defense. The Supreme Court granted certiorari and reversed by a five-to-four vote. 534 U.S. 61 (2001). In an opinion by then-Chief Justice Rehnquist, the Court held that Bivens was “concerned solely with deterring the unconstitutional acts of individual officers” and that there was “no reason for us to consider extending Bivens beyond this core premise here.” Justice Stevens - joined by Justices Souter, Ginsburg, and Breyer - dissented. In their view, because the violation at issue “was committed by a federal agent - a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government,” the question before the Court was merely “whether the Court should create an exception to the straightforward application of Bivens” and its progeny, “not whether it should extend our cases beyond their ‘core premise.’”

Perhaps the highest-profile discrimination case in which Sotomayor has participated (though she did not write a signed opinion) is Ricci v. DeStefano, a challenge by a group of white firefighters in New Haven, Connecticut to the city’s decision not to certify an employment test for use in promotions when the use of the test results would have made a disproportionate number of white applicants eligible for promotions than minority applicants. The city defended its conduct on the ground that it feared that certifying the results of the test would expose it to a discrimination suit by minority applicants. Sotomayor was part of a three-judge panel that initially affirmed the district court’s judgment in the city’s favor with a summary order that described the district court’s decision as a “thorough, thoughtful, and well-reasoned opinion.” The order noted that the judges were “not unsympathetic to the plaintiff’s expression of frustration,” but it explained that “it simply does not follow that he has a viable Title VII claim.” The panel eventually replaced the summary order with a per curiam opinion that was otherwise virtually identical to the order. 530 F.3d 87 (2008). Sotomayor was one of seven judges of the Second Circuit to vote to deny rehearing en banc; six other judges dissented from the denial. In January 2009, the Supreme Court granted certiorari, and it heard oral argument in April 2009. A decision in the case is expected by late June, and it is likely that the Supreme Court will reverse.

Environmental Law: Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.” Sotomayor wrote and opinion holding that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” - which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear. Thus, she explained, “assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish . . . could appropriately choose the cheaper technology on cost-effectiveness grounds.” On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.

Sotomayor also held that the EPA could not consider restoration measures - such as restocking fish to compensate for fish killed by an intake system - when determining the best technology available for a particular power plant. Sotomayor wrote that “[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle.” Finally, Sotomayor also determined that, at a minimum, EPA’s determination that the CWA provision at issue applies to existing and new facilities was a reasonable interpretation of the statute.

The industry plaintiffs filed petitions for certiorari, which the Supreme Court granted in April 2008 to review the cost-benefit issue. By a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed “[i]t . . . eminently reasonable to conclude that” the CWA’s silence with regard to determining the best technology available “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.” Justice Stevens wrote a dissenting opinion, which was joined by Justice Souter and Ginsburg. In their view, because “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and intended “to control, not delegate, when cost-benefit analysis should be used,” Congress’s silence on this issue did not constitute “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

Privacy and Information: Sotomayor has encountered a wide variety of privacy and access-to-information issues in her time on the Second Circuit, including cases involving the Freedom of Information Act and employer searches of employee workspaces.

In two cases involving requests under the Freedom of Information Act (FOIA), Sotomayor wrote an opinion that declined to order the release of the requested information, explaining that she did not want to “unreasonably hamper agencies in their decision-making.” Thus, in Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002), the panel denied a tax attorney’s request for a memorandum written by a Deputy U.S. Attorney outlining the office’s opinions and policies regarding tax investigations, notwithstanding that the memorandum had been cited in a publicly released report. And in Wood v. FBI, 432 F.3d 78 (2d Cir. 2005), while acknowledging that FOIA exemptions should be construed “narrowly, resolving all doubts in favor of disclosure,” her opinion denied a reporter’s request for an FBI memorandum regarding local FBI agents accused of lying. She reasoned that the “unwarranted invasion of privacy” for the individuals whose names would be released outweighed the public interest in disclosing a government employee’s identity.

In a case involving privacy issues, Leventhal v. Knapek, 266 F.3d 64 (2001), Sotomayor wrote an opinion that rejected a Fourth Amendment challenge to a public employer’s search of an employee’s computer after the employee was accused of being late, coming to the office infrequently, and spending his free time discussing personal computers with his coworkers. Although she agreed that the employee had a “reasonable expectation of privacy in the contents of his office computer,” Sotomayor also cautioned that “workplace conditions can be such that an employee’s expectation of privacy…is diminished.” Here, she explained, the search was permissible because it could have revealed employee misconduct.

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms. The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.

Voting Rights: In Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), the en banc Second Circuit rejected a challenge under the Voting Rights Act to a New York law denying convicted felons the right to vote. The plaintiffs in the case had argued that in light of the long history of discrimination, both in society and in the New York criminal justice system specifically, the state’s disqualification of felons constituted disqualification based on race. The majority reasoned that Congress did not intend the VRA to apply to state felon disenfranchisement laws. Moreover, extending the VRA to the state statutes would “alter the constitutional balance” between states and the federal government, and the VRA lacked a clear statement by Congress that it intended to upset that balance.

Sotomayor joined the main dissent from the en banc court’s decision but also wrote a short dissenting opinion of her own in which she opined that the issue was actually much simpler than the majority and concurring opinions would suggest: the VRA “applies to all ‘voting qualifications,’” and - in her view - the state law “disqualifies a group of people from voting.” “These two propositions,” she concluded, “should constitute the entirety of our analysis.” Rejecting what she regarded as the majority’s failure to grapple with the plain text of the statute, she emphasized that “[t]he duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

International Law: Sotomayor wrote a dissenting opinion in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), which considered whether a ne exeat clause - that is, a clause prohibiting one parent from removing a child from the country without the other parent’s consent - constitutes a “right of custody” for purposes of the Hague Convention on International Child Abduction, thereby requiring the child’s return when the clause is violated. In holding that the ne exeat clause does not constitute a “right of custody,” the majority - among other things - declined to attribute any weight to contrary holdings by courts in other signatory nations, dismissing them as “few, scattered, [and] conflicting.”

In her dissent, Judge Sotomayor concluded that the Convention’s drafters had in mind “a notably more expansive definition of custody rights” than the “parochial” definitions - from U.S. dictionaries - on which the majority relied. Moreover, she noted, “most foreign courts to consider the issue” had held, as she would have, that a ne exeat clause does indeed constitute a “right of custody.” Although certiorari was denied in the Croll case, the question is once again before the Supreme Court in No. 08-645, Abbott v. Abbott (disclosure: Howe & Russell and Akin Gump represent the petitioner in the case).

In January 2009, the Court called for the views of the Solicitor General, who is expected to file her brief this month. In an interesting coincidence, one potential candidate for the Supreme Court (Solicitor General Elena Kagan) will have the opportunity to comment on the merits of the opinion of another (Judge Sotomayor).

You Tube on Sotomayor

The Effect of Drug Convictions on Student Financial Aid

Practicing criminal defense law in Ithaca, NY brings a specific student focus to many legal issues. Many Cornell University and Ithaca College students receive financial aid in various forms. Concerns over the affect that a conviction of any type could have on their current lifestyle, future plans, and career prospects are always at the forefront of any legal consultation.

Most students are unaware that any conviction for the sale or possession of illegal drugs leads to some harsh collateral consequences.

President Clinton originally signed the legislation that amended Higher Education Act (H.R. 6) which mandated that "A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any federal grant, loan, or work study program." This was amended in 2006 to block eligibility for Federal financial aid only when the offense occurred during the period of time when the student was receiving aid.

The controlling law is 20 U.S.C. section 1091 (r) (1) which suspends eligibility for any federal grant, federal loan, or federal work study financial assistance for students convicted of any offense under State or Federal law involving the possession or the sale of a controlled substance.

The suspension of eligibility for Federal financial aid begins on the date of the conviction and ends as follows:

for Possession of a Controlled Substance 1st offense: 1 year
for Possession of a Controlled Substance 2nd offense: 2 years
for Possession of a Controlled Substance 3rd offense: Indefinite

for Sale of a C.S. !st Offense or 2nd Offense: 2 years
for Sale of a C.S. 3rd Offense: Indefinite

The use of marijuana in Ithaca is ubiquitous. Pot is not considered or recognized by many people as a controlled substance or illegal drug. There are many "head" shops in the downtown Ithaca Commons which sell pipes, bongs, and other smoking paraphenalia.

Of important NOTE to college students is the fact that a conviction for the Unlawful Possession of Marijuana, (UPM) PL 221.05 will result in a period of ineligibility for any Federal financial aid.

UPM is for possession of less than 25 grams (about 7/8 of an ounce) of marijuana. In contrast, the Criminal Possession of Marijuana (Penal law 221.10), a B misdemeanor, is where the amount is over 25 grams but less than 2 ounces OR where posession is in a public place where the marijuana is burning or open to public view.

How is it possible that your Federal financial aid will be affected by the possession of one unlit joint?

UPM is considered just a violation in New York State, and is not a classified misdemeanor (a crime). Even so, Section 1091 was specifically written to include any offense language (thanks to former President Clinton) which does not necessarily imply a crime, and the Unlawful Possession of Marijuana, PL 221.05 is considered such an offense, and Marijuana is a listed controlled substance under 21 U.S.C. section 802 (6).

So what remedies are available to convicted students?

They can complete a drug rehabilitation program to regain eligibility. This program must comply with criteria set out by the Secretary of Education by (1) being qualified to receive funds from Federal, state, or local government, or from a Federally or state licensed insurance company OR (2) be administered or recognized by a Federal, state, or local government agency or Court, or a Federally or state licensed hospital, health clinic, medical doctor AND
(3) must include two unannounced drug tests.

Of course, the best solution is not to have a UPM conviction in the first place by hiring a competent and knowledgeable lawyer to represent your interests immediately. A Unlawful Possession of Marijuana (UPM offense), and the Criminal Possession of Marijuana (Class B misdemeanor) charges can usually be resolved with a non criminal deposition which will not affect your Federal financial aid.

Citizens Forum On Judicial Accountability

FOR IMMEDIATE RELEASE

Contact:
Zena Crenshaw, Executive Director
National Judicial Conduct and Disability Law Project, Inc.
888.478.4439 Ext 1

New Report Suggests Judicial Reform is a Stimulus America Needs



Washington, DC (PRWEB) May 7, 2009 -- Today is the official release date for the much anticipated Report with Recommendations of the Citizens’ Forum On Judicial Accountability (CFOJA) that took place May 15, 2008 on Capitol Hill in Washington, D.C. The report recounts why the CFOJA was convened and many things tending to serve or hinder that goal as the forum’s first anniversary approaches. Ultimately the report concludes that “(a)dequate judicial oversight is not generally available in America through well-established government processes, but contrary to a popular sentiment, the inadequacy is not due to corruption.”

Various public policy thought leaders from America’s public and private sector will be formally invited to critique the CFOJA report according to Zena Crenshaw, executive director of National Judicial Conduct and Disability Law Project, Inc., a CFOJA co-sponsor. “An online blog has been created so the general public can critique and comment on the CFOJA report as well”, she adds. The report is sixteen (16) pages long and includes an appendix of real stories about the court battles of six (6) U.S. citizens: Mrs. Evelyn Johnson, Mrs. Nancy Swan, Ms. Katherine Moore, Mrs. Betsy Combier, Mrs. H. Christina Pak, and attorney Michael R. McCray.

While the CFOJA report makes clear that the forum’s presiding panel heard compelling arguments for both maintaining and reforming America’s judicial oversight methodology, those panelists who helped draft the report seem most persuaded by the contention that restoring the Rule of Law when breached is an obligation of and should directly involve all Americans. Crenshaw, who made the related arguments, now links them to a finding by Transparency International (TI), a prestigious anti-corruption coalition.

TI defines corruption as ‘the abuse of entrusted power for private gain.’ Its executive summary of the problem as it relates to judicial systems in general explains:

It is difficult to overstate the negative impact of a corrupt judiciary: it erodes the ability of the international community to tackle transnational crime and terrorism; it diminishes trade, economic growth and human development; and, most importantly, it denies citizens impartial settlement of disputes with (neighbors) or the authorities. When the latter occurs, corrupt judiciaries fracture and divide communities by keeping alive the sense of injury created by unjust treatment and mediation. Judicial systems debased by bribery undermine confidence in governance by facilitating corruption across all sectors of government, starting at the helm of power. In so doing they send a blunt message to the people: in this country corruption is tolerated.

Noting that judicial corruption accordingly undermines the tremendous policing that can be accomplished through private litigation, Crenshaw proposes that effective judicial oversight should be among America’s highest priorities.

Crenshaw says “anyone calling for more government regulation or chastising its past failures during this time of economic crisis should consider that some of America’s best regulators are private litigants, cut out of oversight processes by the rulings of judges who themselves may be part of the problem.” Retired Chief Deputy Marshal Matthew Fogg committed two (2) decades of his life proving that law enforcers sometimes break the law. Through a landmark, four million dollar jury verdict in 1998, Fogg established “the entire U.S. Marshal’s Service to be a racially hostile environment for African American deputy U.S. Marshals nationwide.” Among many related endeavors, Fogg is founder and national president of CARCLE, Congress Against Racism and Corruption in Law Enforcement, a CFOJA co-sponsor.

As president of the E-Accountability Foundation, another CFOJA co-sponsor, Betsy Combier credits the CFOJA with looking “at one of the most important issues in America right now: whether or not judges with their accompanying power should continue to be given the immunity that is currently almost absolute.” She contends this first inquiry leads to a second, namely “whether or not there are sufficient safeguards against the abuse of that power and supportive judicial accountability.” Attorney Michael McCray adds as Chair of The 3.5.7. Commission which addresses the proliferation of summary judgments in employment discrimination cases and co-chaired the CFOJA:

President Obama’s election campaign proved that grassroots community organizing combined with new technology has the potential to shake the very foundations on which once unassailable ivory towers stood. What was true for his presidency will be true for the courts. The justice system in America must take notice – May 7, 2009 could very well be the “Iowa Caucus” that begins an avalanche of judicial reform.

All participants seem to share Betsy Combier’s sentiment that the CFOJA is “an important step towards the renewing of public trust in America’s judiciary.” The CFOJA report itself sets forth “Next Steps” as recommended by presiding panelists James Holzrichter, Co-Founder of the Taxpayers Against Fraud Mentoring Project; Marcel Reid, Chairperson of The ACORN 8 and; Matthew Fogg, Chief Deputy U.S. Marshal (retired), International Human Rights Advocate, and EEO/Diversity Counselor.

###

To download and/or comment on the Citizens’ Forum On Judicial Accountability Report and Recommendations, please visit http://cfoja.wordpress.com

Court of Appeals Holds Non-custodial Parent Does Not Retain Decision-making Authority

Non-custodial Parent Does Not Retain Decision-making Authority Pertaining to Education of Child Where Custodial Parent Granted Exclusive Custody of the Child and Decree and Custody Order Are Silent as to Right to Control Such Decisions.


In Fuentes v Board of Educ. of City of New York, --- NY3d ----, 2009 WL 1148636 (2009) Plaintiff Jesus Fuentes and his wife were divorced in 1996. Family Court entered an order granting the wife exclusive custody of the three children, including a son, M.F., who, due to a genetic disorder, was legally blind. M.F. attended public school in New
York City and received special education services to accommodate his disability. In 2000, plaintiff believed that M.F.'s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F's services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York State Department of Education to review that determination. In 2001, plaintiff's request for a hearing was denied based on his status as the non-custodial parent of M.F. The Office concluded that because plaintiff was not the "person in parental relation" (Education Law 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing. Plaintiff then commenced an action in the United States District Court, alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the district court dismissed plaintiff's case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from the Court of Appeals directly addressed the dispositive issue and certified a question, which the Court of Appeals reformulated: " Whether, under New York Law, the non-custodial parent of a child retains decision-making
authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. " As reformulated the certified question was answered in the negative. The Court of Appeals noted that it is well settled in the
Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing. It declined to recognize an implied right of non-custodial parents to exercise decision-making authority with respect
to their child's education notwithstanding the custody order's silence on this subject and emphasized the importance of parties determining these issues at the time of separation or divorce. The Court noted the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which prevents a non-custodial parent (even one without any decision making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial
parent has no right to "control" such decisions. This authority properly belongs to the custodial parent.

SkaTTTen

"Tom,

Looks like SkaTTTen's attempt at paying an above market bonus last year to a few overly compensated 25 year old baby lawyers was a desperate attemp to hide the fact that they are obviously a firm on the decline. Today, we hear of yet another major partner fleeing the firm. This comes on the heels of the dissolution of the entire staff attorney program. Working as a contract attorney in that dump is just as perilous. For sure, Clutch is still paying an above market rate of $40 + an hour, but on the other side of the building, Kelly is filling with the rafters with a bunch of new recruits who will be earning less than $35 an hour. No doubt the new group is being brought in to replace the old guard."

Picking Supreme Court Judges New York

Picking Judges in New York

In January, 2007, U.S. District Judge John Gleeson ruled that the current system of nominating State Supreme Court judges in New York is unconstitutional. At a recent forum at the Association of the Bar of the City of New York, a panel of experts weighed in on the subject of how to select judges and why it matters. The following articles are edited transcripts of the event.

Giving Voters Real Choices
by Deborah Goldberg, Gotham Gazette, 29 May 2006
LINK

In January, Judge John Gleeson ruled on the case Lopez Torres vs. the New York State Board of Elections, which held that highly qualified candidates for Supreme Court deemed to be not sufficiently loyal to the party are unable to secure the nomination in New York.

Margarita Lopez Torres (pictured as she handed out campaign literature) ran for civil court with the support of the party in 1992 and later decided that she wanted to run for Supreme Court. After she got her seat on the civil court bench, she was given instructions from the county leader to hire a particular court attorney. Lopez Torres determined that the particular court attorney was not qualified for the position and refused to hire him. When time came for the Supreme Court nomination, she was told that the party needed loyalty – that those who stand by the county party can move on to the Supreme Court, those who do not stand by the party, cannot.

In the brief to the court, the defendants do not argue that the convention system serves judicial integrity or judicial independence. They do argue that the system serves the party associational interests and an interest in racial, ethnic and geographic diversity.

The first interest – the party’s rights to freedom of association – does not, in our view, include its right to exclude its own members from the nomination process. And geographic diversity can be addressed without burdening voters’ rights simply by imposing residency requirements on the judicial candidates, which do not now exist, or by reducing the size of the judicial districts, so that there would be smaller districts from which each judge would run. Racial diversity is a serious interest and whether or not the system in place or other alternatives created will be a great concern.

SHAM ELECTIONS

We begin with the premise that sham elections are not consistent with democracy. And sham elections are what we have under the current convention system. Our state constitution requires that our Supreme Courts judges must be elected. But the convention system allows the county leaders to usurp from the voters the power to select the justices.

During the course of the litigation, for example, evidence was entered that the New York County Democratic leader said that he had the votes to “kill someone.” In other words, “I can’t guarantee that I can always make you, but I can surely block you.”

That means that nobody becomes a Supreme Court justice unless the county leader agrees. In fact, after 13 days of hearings, 24 witnesses, and 10,000 pages of evidence, there was no evidence of a single person ever becoming a Supreme Court justice over the objection of a county leader. Between 1994 and 2002, 96 percent of all Supreme Court nominations statewide were completely uncontested.

In our view, if there are going to be elections in New York, then voters should have some real choice in selecting who is going to be on the bench. Now, whether there should be elections at all in New York is a different question, but in this case, the defendants argued that there is no right to meaningful participation in judicial nominations. To me, that is tantamount to the claim that meaningless participation is enough.

Having political parties control who is nominated to the Supreme Court is not consistent with judicial independence, impartiality or integrity.

AN ARGUMENT FOR PRIMARY ELECTIONS

The district court preliminarily enjoined the operation of the convention system. That means that until trial or until the legislature changes the system, the convention system is not in force. The original injunction would have defaulted to the fallback process in the statute, which are primary elections.

There were primary elections many decades ago, the convention system was put in the place, and so when the judge knocked down the convention system, he simply did what he deemed to be the least intrusive thing he could do, which was to reinstate the process that existed before.

This is the first real opportunity in decades to revisit the issue of how judges should be selected. If this decision is upheld on appeal, it will probably be the last opportunity we will have for decades. The party leaders have controlled this process for many years and unless we have an opportunity now, it is unlikely that will ever be able to persuade them to change.

The Brennan Center has not taken a position that open primaries are the best decision. We have not taken a position as to what we think the best system is. We believe there is more work to be done before we can make that decision.

The problem with the current system is that the party leaders control the selection. I am concerned that just tinkering with the system is going to replicate the problem.

More formal screening panels, for example, would not eliminate loyalty tests. Candidates will still know that at the end of the day, that the party leader will have the power to block the nomination. As long as that is the case then we have not addressed the constitutional problem.

As long as there is a system that allows the party leader to exercise that veto, we are still going to have highly qualified candidates who are going to self-select themselves out of the process.

So the candidates who come before the commission will not necessarily be the most honest, most competent, the people with the highest ethical standards. They will be the people who know that they can make a case to the party leader.

RESPONDING TO FOUR CONCERNS ABOUT ELECTIONS

The alternative – primary elections – should not be evaluated as a fallback system alone, but in terms of what they could be if there were appropriate amendments.

1. Money

The first concern about primary elections for Supreme Court is the cost. Some worry that quality candidates who either cannot or do not want to raise large sums of money will not run for office, or that they will be outspent by self-financed candidates. Public funding would address most of this issue.

We have done studies of judicial races and the cost of campaigns across the country, and we have found that the most expensive races are for the high court seats. People are spending millions of dollars on judicial races where there is no higher body in the state to overrule the judge, so it is a very important policymaking position. But we are not seeing, for the most part, very expensive trial court races.

2. Geographic Diversity

Another concern is geographic diversity, and reducing the size of judicial districts would address this issue. If a candidate can run in a single county, then candidates are not in the position to beg for scraps from the leader from the most powerful county.

For example, people in Staten Island have to convince the Brooklyn party leader that they deserve a seat on the bench. If Staten Island had its own district, they would have a much better opportunity to have geographic diversity.

3. Women on the Bench

On gender diversity, the Women’s Bar of the State of New York has submitted an amicus brief in support of the defendants in the case. They do not address the underlying issue of constitutionality, but some members are concerned that the move from a convention system to primarily elections will depress gender diversity in New York State courts. They argue “women will not be able to compete on equal footing with historically more politically entrenched candidates for Supreme Court justice.”

I find this ironic because right now women are at the mercy of politically entrenched, male party leaders.

I don’t think that they are likely to be facing greater entrenchment in an open primary. In 2002, the New York State Judicial Committee on Women in the Courts found that only 17 percent of Supreme Court justices were women. Even in New York City, 26 percent of Supreme Court justices were women, where as 47 percent of Civil Court judges were women. Civil Court judges run in primaries countywide, just as Supreme Court judges would have to do.

4. Racial Diversity

I also want to talk about racial diversity. In 2001, 92 percent of the Supreme Court justices of color in the state were from New York City. Even in New York City, from 1992 to 2002, people of color held 39 percent of civil court seats, but only 27 percent of Supreme Court seats. So in New York City, where we have majority populations of color, there is reason to believe, especially if there is public funding, that communities of color will be able to elect judges.

AN OPPORTUNITY FOR CHANGE

The one thing that public financing and smaller districts would not address is the fundamental question of whether the election of judges is appropriate in the first place.

Many people believe that institutionally the judiciary is not designed to answer to the tyranny of the majority and that the election process is fundamentally flawed. I’m not sure I agree with that. But even if you do believe that, now is an amazing opportunity for people of the state of New York to engage in a discussion about what is the best system.

Deborah Goldberg is the director of the Democracy Program at the Brennan Center for Justice

Selecting the Most Qualified Judges
by Michael Cardozo, Gotham Gazette, 29 May 2006
LINK

I have long been a strong believer in merit selection. I personally believe it should be our ultimate goal. Unfortunately, I also think it’s not a realistic goal to be achieved in the near future.

I do not want to have open primaries. I have real questions about whether or not voters really can meaningfully cast their vote in primaries. I don’t know what issues judges are going to campaign on, or how voters can intelligently exercise their franchise.

THE PROBLEM OF MONEY

In Texas, there is a story (that I believe is only half apocryphal). Two people try a case before a judge. The judge says, “I want the record to reflect that a lawyer for the plaintiff gave me $10,000 for my campaign and the lawyer for the defendant only gave me $5,000 for my campaign.” And the lawyer for the defense says, “Judge, can we adjourn so I can write you a check?”

If we have open primaries, the issue of money is something that everyone should be very concerned about. Public financing would partially address the issue, but it would not address how voters make their decisions.

I do not think that you are going to be able to generate a consensus for merit selection anytime in the foreseeable future. I do not think that you are going to be able to generate consensus on public financing for judicial candidates. If we believe that, I think we are kidding ourselves.

So if we are not going to get merit selection and if the open primary approach is not particularly desirable, then let’s look at the judicial conventions system and ask what is wrong with it and see if it can be corrected.

I think there are two fundamental problems with the convention system. As Judge Gleeson pointed out, it is virtually impossible for anyone who wants to buck the county leader to get elected. So, we have to look at how you can correct that.

The second issue is the “Clarence Norman” problem. Testimony in the case demonstrated that the county leader has had virtual dictatorial power of the quality of the people coming out of the system. There are a lot of judges who should be on the bench. But there are also a lot of people who were able to make deals and they should not be on the bench, but they are.

REFORMING JUDCIAL CONVENTIONS

So how do you correct these flaws?

1. Easier Ballot Access

The first flaw, which I’ll call the constitutional flaw, has two basic issues. One is the number of signatures required for a delegate to get elected. Both the Feerick Commission and Mayor Bloomberg have suggested that you change that 500-signature requirement to 250 to make it easier for people to get on the ballot.

2. Fewer Delegates

The second issue is that under the current statute each party can determine how many delegates there should be at a judicial convention. So if you have a large convention, and you want to run as a maverick candidate, you not only have to get a lot of signatures, but you have to have support from a lot of people at the convention.

Mayor Michael Bloomberg has proposed that the smallest assembly district within the particular judicial district has one delegate, and that the number increase based on population in each district. The Feerick Commission suggested that you have weighted voting to achieve the same balance. Either way, you have to cut down the number of delegates.

3. Screening Panels

So how are we going to ensure that the most qualified people come out of the convention system and not just people who pass some minimal professional criteria?

Unfortunately, the New York State Constitution gets in the way of this. The constitution says that the only qualifications for judges is that you have to be a certain age and you have to have practiced law for a certain period of time. You cannot say that you have to be found “highly qualified” to run for judge.

But what you can do – and this is what the Feerick Commission, Judge Judith Kaye, and the mayor have all proposed – is set up a judicial qualification commission. The commission finds the people at the convention who are qualified to be a judge.

The mayor has pushed this one step further; he has suggested that the qualification commission find the three most highly qualified candidates for each slot.

You cannot mandate that the convention only select from those three people, but if you have a statute and you create this commission I would hope that this would force the parties to adhere to the recommendations of the qualifications commission.

There can be lengthy debate – if we get that far – as to who should pick the members of the judicial qualification commission.

However that is done, you must establish an independent judicial commission and then you ask those people to find the most qualified people. Those are the names are presented to the convention. I think this would change the entire dynamic. We have an opportunity. I hope we can get the State Legislature to wake up and take on this debate.

Michael Cardozo is the corporation counsel for New York City

Conventions Create A Diverse Judiciary
by Paul Wooten, Gotham Gazette, 29 May 2006
LINK

I was first elected as a judicial delegate in Brooklyn in 1982. At that time, the conventions were very quick, they only lasted one day. The county leaders picked the judges. And most of the judges who came out of the convention in the early 1980s were white, and no one cared about how the convention worked and who got elected. That was just how it was.

I want to explain how the judicial convention works today.

Every assembly district is allotted a certain number of delegates – anywhere from five to eight people – based on the party turnout from the previous gubernatorial election. Delegates run on the slate with the district leaders, who are party officials, and they go to the convention. The judicial delegates, either by voice vote or hand vote, determine who wins the nomination for Supreme Court justice.

In the early 1980s, white judges were elected and qualified African-Americans and Hispanics could not get elected. But over the last thirty years, the population of white residents in Brooklyn went down and the African-American and Hispanic populations have risen.

Today, African-American and Hispanic populations control the two most populous districts in Brooklyn and as a result elect judicial delegates who are black and Hispanic. They have, in turn, elected African-American and Hispanic judges to the bench. We have a larger percentage of African American judges in Brooklyn than in some states. And that is a direct result of population changes, the judicial conventions, and how they work.

Because of judicial delegates, we have African-Americans and Latinos on the bench.

WHY MERIT SELECTION WON’T WORK

From my experience, the best way can power sharing for minorities is through some kind of elective process. I have huge concerns about the merit process. I’ve looked at them; I’ve been on screening panels. The merit process does not work for me.

Look at the current situation in the merit screening process of the governor. The governor has been in office for ten years, and he has a merit process for the appellate division. The first division of the appellate division has a huge African-American and Latino population in Brooklyn and Queens. But of the 16 appellate judges in the division, there is only one African American and one Hispanic.

Of the 60 Courts of Claim judges, which are appointed by the governor, we have one African-American and three Hispanics. And the one African-American judge was a candidate for Congress and basically he was appointed at the request of the Democratic Party in Queens. It had nothing to do with merit.

The Brooklyn family court –whose judges are appointed by the mayor - services the largest minority population in the state. We have no African-American family court judges. Not one.

Merit selection boards appoint people who look like them. The judicial conduct commission has 11 members, all appointed, and has no minority representative. Under merit selection, the majority of the people in the room are not people of color. When it comes down to the question of “who is the best?” or limiting it to the best three out of ten, there is a strong likelihood that people of color will be eliminated.

REFORMING CONVENTIONS

There are problems with the judicial conventions, but there are things that can be done to make judicial conventions better.

First of all, we have to let the delegates determine who the judicial candidate is.

In my experience, whenever a candidate gets enough momentum to become a threat at the judicial convention, the party leader always adopts that candidate. Some would say, a person didn’t get elected because the county leader opposed them, but nine times out of ten, consensus means that they did not have enough support. Consensus means that the party is holding things together, and that is how you are chosen.

The Gleeson decision talks about a “super majority” that is needed to challenge a judicial convention, but I dispute that. In the 1980s, we ran delegates in assembly districts against delegates from the country organization.

We found that you don’t need a super majority to challenge the judicial convention. All you have to do is have enough delegates to support you – about one-third – so that you can go to the convention with enough votes to negotiate.

Here are other four ways to improve the judicial convention:

1. Make the judicial delegates public.

2. Open the convention.

3. Allow candidates to speak at these events.

4. Allow time for electioneering.

And if you are going to keep the judicial conventions, give them the right to choose. To now say, you are smart enough to be elected by the direct vote of the people, but you are not smart enough to determine who is best qualified, and we have to put a panel up here to filter who you can choose from, strikes against my sense of what electoral politics are.

When you run for State Senate or Assembly or Congress, there is not a panel to determine if you are a good candidate. The public has the ability with input from bar associations, to determine who the best judges are.

Paul Wooten heads up Paul Wooten and Associates

[Editor: for the First Amended Complaint,click the hyperlink)

2nd Circuit Panel Probes N.Y. Judicial Election Remedy
Tom Perrotta, NY Law Journal, 06-09-2006
LINK

In a lively and sometimes humorous argument that stretched from a planned 40 minutes to two hours, the three appellate judges considering the constitutionality of New York's system for electing Supreme Court justices gave little indication of what the future might hold.

Would they affirm Eastern District of New York Judge John Gleeson, ending a convention system that dates back to 1921 and leaving Supreme Court justices to fight their way through open primaries? Would they remand the case for a new remedy, perhaps asking Gleeson to hold a full trial while staying his ruling through the 2007 election, giving the Legislature time to act? Or might they simply reverse after finding that the complicated convention system that gives the state its judges is perhaps not a shining example of democracy, but constitutional nonetheless?

To say the three-judge panel of the 2nd U.S. Circuit Court of Appeals was difficult to read is an understatement. When Joseph L. Forstadt of Stroock & Stroock & Lavan stood up to defend the system on behalf of the state's Supreme Court justices, he sheepishly suggested that the court had seemed to reach a conclusion on the facts -- a reasonable statement considering how forcefully the judges had attacked Andrew J. Rossman of Akin Gump Strauss Hauer & Feld, which represents the New York County Democratic Committee.

"That's really not accurate," Judge Sonia Sotomayor interrupted. "You haven't sat through argument long enough to say that. You haven't given me a shot at the other side."

Laughter ensued, but Sotomayor kept her promise when Frederick A.O. Schwarz of Cravath, Swaine & Moore, acting as the senior counsel for the Brennan Center for Justice at New York University School of Law, took his turn for the plaintiffs.

Judge Chester J. Straub took his shots, too. Judge Peter W. Hall also asked numerous questions of both sides, though he was less combative than his colleagues.

At issue is a singular ruling from Gleeson, in which he found that New York's complex convention system was a sham that left political leaders entirely in control of who becomes a judicial candidate.

Of the 33 states that elect trial court judges, only New York relies on a convention system. Plaintiffs in the suit, an array of potential judicial candidates and the civic group Common Cause/NY, argued that without the backing of party leaders -- whether it be the Democratic leaders in New York City or the Republican leaders upstate -- a prospective judicial candidate could not hope to sway enough delegates to emerge from a convention victorious.

Gleeson held extensive hearings, and in January, 14 months after the suit was filed, he found that the system violated the U.S. Constitution. He noted that the number of petitions required to field a winning slate of delegates was so great that it was easier to run for mayor of the City of New York. He imposed a primary election, before staying his ruling until the end of this year.

"The state may not pass off the will of party leaders as the will of the people," Gleeson wrote in Lopez Torres v. New York State Board of Elections, 411 F. Supp. 2d 212 (EDNY 2006). "Because that is exactly what the New York judicial convention system does, it violates the First Amendment."

DISCUSSION OF REMEDY

Before Wednesday's arguments began, Straub, flanked by Sotomayor on his right and Hall on his left, asked Rossman and Forstadt, and Caitlin J. Halligan of the Attorney General's Office, to address Gleeson's remedy.

Rossman argued that if the panel did not simply reverse Gleeson, it ought to ask him to assess which aspects of the convention system were unconstitutional -- such as the petitioning requirements or the amount of time candidates have to lobby delegates -- and more narrowly tailor his solution.

"You would like him to decide how many signatures, how many delegates?" Straub asked incredulously. "This is what you would want Judge Gleeson to do on remand?"

"It's repairing the building rather than demolishing the building," Rossman said.

Halligan asked for something the state had not requested before: a stay of Gleeson's ruling until after the 2007 election, so the Legislature could act. She said she would prefer it if the judge did not take any further action, or hold a trial, until that time.

Sotomayor seemed particularly uninterested in giving the Legislature an open-ended amount of time to solve the problem, assuming the court held there was a problem to solve. She caused laughter when she said it was not a good idea to give the Legislature "another 85 years to figure this out." An "indefinite time," she said, "is not acceptable."

Schwarz countered that Gleeson had acted with proper judicial restraint, since it was not his place to legislate. He said the system was "so rife with interconnected problems" that no other approach would work.

CONSTITUTIONAL STANDARDS

Some of the most heated exchanges came when discussing whether the convention system met minimal constitutional standards.

Straub asked whether the state, in creating an elective system, could dictate that Mr. X. or Ms. Y had the power to select candidates for a political office, subject to a final vote by the people.

Rossman argued yes, and Halligan agreed, though more reluctantly. Rossman said there was nothing unconstitutional about a system in which party leaders held sufficient sway over the delegates to alter the outcome of a convention.

Sotomayor responded: "If I choose to join the Totalitarian Party, so be it." But, she wondered if it was something different for the state to create and endorse such a system.

Straub asked, "If you find a way to nullify the right of the electorate to participate in any way, that is not a class to be protected?"

Rossman argued that even though the lead plaintiff, Surrogate Court Judge Margarita Lopez Torres, had failed to win a nomination, other judges had beaten the system.

Hall then quipped that they did so only after their spouses had joined the party leadership, leading to an outburst of laughter. Rossman said that nonetheless, their success was a testament to the system.

Forstadt also stressed the testimony of successful challenger judges -- including Justice Alice Schlesinger, Justice Phyllis Gangel-Jacob and Justice Sheila Abdus-Salaam -- and said Gleeson had ignored their statements.

Straub interrupted and asked, "How do you explain away your own expert's testimony?" One of the defendants' experts, Michael Hechter, had testified, "District leaders effectively select delegates to the judicial convention."

Though the panel spent about an hour and a half questioning the defendants and about a half hour on the plaintiffs, Schwarz hardly got off easy.

As soon as he agreed that a convention system could be constitutional, Straub asked if the plaintiffs were simply upset with the way the system had developed over time.

Sotomayor asked, "Why can't the party say, 'We don't want you to be our standard bearer?'"

'THAT'S POLITICS'

Schwarz launched into the story of Lopez Torres, a Civil Court judge popular among voters and the Democratic Party. She had received the most votes -- more than 200,000 -- of any judicial candidate in the 2002 primary for Civil Court, but she could not obtain a nomination for Supreme Court despite seven years of effort. Schwarz said her failure boiled down to her unwillingness to hire as law clerks two people connected with party leaders.

Straub's reply was curt: "That's politics. Where's the constitutional infirmity?"

Sotomayor pressed the issue of constitutional rights. She said the plaintiffs had tended to confuse, in their brief, the right to win with the right to have access to the system.

"You just haven't articulated to me the constitutional right," she said. "If a candidate does not have the right to win, then what is it?"

"It's to not be overly burdened in your efforts to win," Schwarz responded.

In one of his lighter moments, Straub said to Schwarz, "I think you would admit to me, at least you would admit over a drink," that perhaps the system imposed by the Legislature 85 years ago had run its course and was no longer useful in modern-day New York.

"Is that where we are?" he asked.

"I don't know if I would admit it over a drink or otherwise," Schwarz said.

The panel reserved decision.

Amicus Brief

WHAT MAKES A GOOD APPOINTIVE SYSTEM FOR THE SELECTION OF STATE COURT JUDGES: THE VISION OF THE SYMPOSIUM

THE PARTY'S OVER FOR DICTATOR BOSSES
Daily News, Posted Thursday, June 8th 2006, 12:00 AM
LINK

The demise of New York's boss-run judicial-selection system seems guaranteed following an extraordinary federal appeals court hearing at which three distinguished judges zeroed in relentlessly on the fundamentally undemocratic nature of the process. For well over an hour, Judges Chester Straub, Sonia Sotomayor and Peter Hall grilled the lawyer retained by the Democratic Party to defend the constitutionality of New York laws that give the bosses complete control over who gets to be a state Supreme Court justice, depriving the voters of all say in the matter. With one piercing question, Sotomayor exposed the absurdity of the party position: If New York had a Totalitarian Party, would it be constitutional for the Totalitarian Party chief to pick all the judges? Yes, said the lawyer. Hit with the same question, a lawyer from the state attorney general's office agreed the Totalitarians could do as they liked. But what else could the lawyers say? They had to back the Totalitarians because the bosses exert dictatorial control over who gets on the bench in New York through their rigged judicial nominating conventions. In this matter, boss rule is absolute, as Brooklyn Federal Judge John Gleeson concluded in January when he ordered the conventions scrapped and replaced by legitimate elections. On and on the legal pummeling went, delighting an overflowing courtroom. When a defender of the dictators claimed that insurgent candidates have prevailed, an appeals jurist noted that the so-called insurgents happened to be married to party insiders. When the attorney general's representative stood up on behalf of a Legislature that supposedly backed the dictatorial system, the federal judges pointed out, pointedly, that the state Senate voted this year to abolish the conventions in favor of primary elections - in synch with Gleeson's ruling. The vibes were unmistakable: Down with the dictators. Power to the people. We await a decision eagerly. Faso's future Now that Bill Weld has dropped out of the governor's race, John Faso sails forth as the undisputed nominee of a New York GOP tacking unmistakably to starboard. Faso is taking on Eliot Spitzer, the likely Democratic candidate, by promising tax cuts and more tax cuts - which may resonate with voters in the highest-taxed state in the nation. But Faso's red-state baggage, including opposition to abortion, and the narrowness of his message are more likely to limit his appeal in blue-state New York. Weld, who was twice elected governor of Massachusetts, could have argued the fiscally conservative case without getting weighed down by social issues. But party regulars at last week's convention rebelled against 12 years of Pataki triangulation and opted for the more conservative candidates in two races - Faso for governor and former Yonkers Mayor John Spencer to challenge Sen. Hillary Clinton. Weld bowed out rather than swim against the rightward tide. In Faso, the Republicans have a guy with long state service and deep knowledge of Albany's folkways, who, party leaders say, reflects GOP principles. But Faso has slim chance of winning unless he broadens his appeal and reaches out to voters in the vast middle - including the Weld Republicans his party has just snubbed. Good luck to him. No apples for teacher It is with wonder that we present today's New York Knucklehead Award to Thomas Everett. Wonder, because some people's capacity for chutzpah never ceases to amaze. Everett teaches - or used to teach - at Sheepshead Bay High School. In January, he submitted a request for a leave of absence for 60 to 90 days. "The purpose of the leave," he wrote, "is in order to Adjust Personal Affairs. I have problems with the State of New Jersey Judicial System. I must fulfill an obligation to the State." Sounds good, except the "obligation" was a jail sentence. Everett - a disbarred attorney - had been convicted of pilfering more than a million bucks from the estates of two elderly clients. Oops. Everett taught social studies. Funny, we presumed it was creative writing.

Judicial Elections



January 25, 2008
Public Lives
Blazing a Trail, and Following Her Own Sense of What’s Right
By ROBIN FINN, NY TIMES

Correction Appended

HER chambers in the Surrogate’s Court portion of the Supreme Court complex in Brooklyn are neither hushed nor imposing: Homey and aromatic (there is coffee brewing on the snack table) is more like it, with a foldaway bicycle in the corner attesting to this judge’s unstuffy approach to her magisterial duties.

So Surrogate’s Court Judge Margarita López Torres (pictured above), whose challenge to the arcane methodology that New York State uses to select candidates for judicial elections was unanimously rejected last week in the United States Supreme Court, bikes to work from her Park Slope abode? Absolutely. She may be a grandmother three times over, but she’s no stiff. Her notion of fun? Riding a tandem bike through Europe with her husband, Matthew J. Chachere, a legal services attorney.

Once a week, Judge López Torres, who in 1992 became the first Latina elected to the Civil Court in New York City, steps out at the lunchtime salsa classes at the courthouse. It’s her way to ward off the battle of the bulge that is a hazard of spending life on the bench adjudicating the vitriolic squabbles of estate settlements or poring over her own legal challenge, backed by the civic group Common Cause and handled by the Brennan Center for Justice at the New York University School of Law, to the state’s nontransparent way of selecting candidates for judicial seats.

“I am somewhat surprised to find myself in a job where a large part of it is watching over people’s estates,” she says, “because coming from the ghetto in East New York, I didn’t even know what an estate was.”

As for her fight against the State Board of Elections over her thwarted attempt to become a candidate for the State Supreme Court, Judge López Torres is candid: “I wasn’t happy when the U.S. Supreme Court took the case, and after sitting through the oral arguments in October, I didn’t have the feeling that we were going to win. It was a disappointment, but I’m not a cynical person. Usually judicial elections are under the radar, so if there’s one thing my case has accomplished, it’s been to open a dialogue on an open secret.”

The fancifully funky voice of Stevie Wonder, her and her mother’s favorite recording artist, emanates from her computer’s sound system; evocative portraits painted by her brother Hipólito Torres, including one of Judge Beatrice M. Judge, the first female Supreme Court justice in Brooklyn, grace the walls.

Judge López Torres, 56, is graceful as a ballerina, with a cascade of brown hair that nearly reaches her waist. Her soulful eyes pool up when the topic is the Supreme Court’s overruling of her case, a 2006 federal appeals court decision that declared New York State’s judicial nominating system unconstitutional.

And if that seems less than sternly judicial, Judge López Torres does not give a hoot. Shattering stereotypes is her mission, as is defying a system that requires currying favor with party bosses. Three times during her decade as a Civil Court judge in Brooklyn, a job she began with the Democratic Party’s blessing, she tried and failed to obtain the party’s nod to run for a seat on the State Supreme Court.

This failure was linked, she maintains, to a self-imposed glass ceiling: her refusal to bow to the preferences of party leaders in her hiring of court personnel.

“No job has ever been so important to me that I would turn over my principles of what is just and fair and right,” she says. “I felt I should hire people who meet my criteria.”

HER independence was interpreted as defiance; she was perceived as lacking loyalty. The punishment? No support when she ran for re-election: “I was told that a minority person could not win a countywide seat,” she says. “I was also told that I was not a team player. When I became a judge, I took an oath: I am loyal to my oath, not to party leaders.”

This repeated thwarting of her professional ambitions is what, in 2004, induced her to become the lead plaintiff in a lawsuit against the New York State Board of Elections that not only attacked this state’s unique method — via conventions attended by party-approved delegates — for selecting its judicial nominees but condemned it as smacking of patronage politics. When she ran in 2005 for Surrogate’s Court judge (again without the party’s support), she survived a primary recount before going on to win the election and the distinction of being the first Latino elected to that court in the state, and Brooklyn’s first female surrogate judge.

Judge López Torres was born in Puerto Rico and at age 6 moved to New York City with her mother and siblings; her father had arrived first and found work as a busboy.

“Education was the way we were going to get out of the ghetto; my mother always taught us that the ghetto wasn’t who we were and that just because we didn’t have money it didn’t mean we had no worth.”

She participated in the Upward Bound program and, because of a fascination with the activism of the Young Lords, a Puerto Rican rights group, and a television series, “The Storefront Lawyers,” she decided to attend law school at Rutgers University.

“I saw it as a way of being involved in the civil rights movement without fighting against the authorities,” she says. “Though I am a fighter. The U.S. Supreme Court decision leaves me right back here in Surrogate’s Court, but my case is not over. It’s not like all the options have been foreclosed. This is too important an issue to let go.”

Correction: February 2, 2008

The Public Lives column in some editions on Jan. 25, about Judge Margarita López Torres of Surrogate’s Court in Brooklyn, whose legal challenge to the way New York picks its judges was rejected by the United States Supreme Court, referred incorrectly to her background. She was born in Puerto Rico and moved to New York City as a child; she did not immigrate.

The Judge on Row E
A Dissenting Jurist Challenges the Party Bosses
Tom Robbins, The Village Voice, published: October 28, 2003
LINK

The most significant race in any borough this election day may be the contest for state Supreme Court being waged in Brooklyn by a judge who dared to defy the county's Democratic Party hacks. Margarita López Torres is the longest-serving judge on Brooklyn's civil court. She was the first Hispanic American woman to serve on that bench, where she won steady acclaim for bringing fairness and dignity to both the family and criminal branches. photo: Cary Conover

Trying to send a message: Judge Margarita López Torres (left) and a supporter, city councilmember David Yassky (right) talk up judicial reform in downtown BrooklynNot even Republicans get elected to Supreme Court in Brooklyn without Democratic Party blessings. But López Torres—denied Democratic endorsement despite efforts on her behalf by all of the borough's leading reformers—is running on the Working Families Party line and stands a fighting chance to win. Should she be elected, it will send a far clearer and stronger message about what's wrong with the judicial selection process than the strained and confusing indictments brought this month against party boss Clarence Norman by District Attorney Charles Hynes. López Torres's experience is an object lesson in how party politics corrupts, although what happened to her would never merit a grand jury charge.
López Torres, 52, would have moved up to Supreme Court long ago had she not run afoul of party leader Norman. She did this by declining to accept the party's choices to serve as her law secretary, an otherwise routine, if little-talked-about, transaction conducted by the Democratic organization. After picking the judges, the party then recommends assistants—whose $50,000-a-year jobs include scant heavy lifting, since the writing of most legal decisions is handled by a small pool of qualified aides in the court's legal department.

One of the party's choices was the fresh-out-of-law-school daughter of Brooklyn assemblyman Vito Lopez. Assemblyman Lopez is no relation to the judge, but he commands major clout within the party for the strength of his Bushwick clubhouse and his access to Albany patronage. The message relayed to the judge by the assemblyman's allies was that if she hired his daughter, she would have a good shot at a prized Supreme Court candidacy. This is the way things work on Brooklyn's bench.

López Torres, however, declined. Another judge was not as choosy and, soon after hiring the daughter, he won the party's nod for the higher bench and was swiftly elected.

Lopez and Norman have both denied that this episode occurred, insisting that the selection of Lopez's daughter was strictly on the merits and that the elevation of the judge who did hire her was a mere coincidence. But another borough Democratic official, Ralph Perfetto, let the cat out of the bag in a letter mailed last month to all of his fellow district leaders.

"Last year I voted for Judge Torres, but this year I checked with two judges who were not candidates this year and four attorneys," wrote Perfetto. "They all labeled her an 'ingrate.' They told me that she courted Vito Lopez to support her for Civil Court, but then decided she didn't need him anymore and denied his daughter a job."

For having the temerity to do this, López Torres became a banned person in the party's highest circles. Her repeated requests to be interviewed for a Supreme Court slot were rebuffed by Norman's secretive judicial-selection panel, which said it accepted referrals only from the county leader himself. Then, up for re-election to her Civil Court post last year, she was denied official Democratic endorsement—the first time in anyone's memory that this had been done. López Torres ran anyway, winning re-election on her own and harvesting more votes than any other candidate.

Amid the headlines of this year's judicial bribery scandal and Hynes's much ballyhooed state grand-jury probe, Norman's organization ceded to some demands from reformers to open up its judicial selection process. It allowed the names of its hitherto secret panel for reviewing candidates to be made public. It also for the first time released the names of those candidates approved. Grudgingly, Norman's panel interviewed López Torres this summer, finding her qualified. But when the party's executive committee met last month to make its selections, the judge won only a handful of votes from rebels.

A few die-hards tried to place her name in nomination before the party's judicial convention, but this too was a doomed effort, producing only a small shoving match between Perfetto and reformer Alan Fleischman, a photo of which ran on the front page of The New York Times as emblematic of high-running tensions in a party under siege.

Despite her outcast status, however, López Torres will still be on next week's ballot. She will be there atop the slate of seven Supreme Court candidates running on Row E, the column allotted to the Working Families Party, the labor-backed activist organization that has cast itself as the progressive conscience of the Democratic Party.

The Democratic Party's official picks for the upper bench are barely visible in these last days before the election. They are presumably doing what Supreme Court candidates always do at this stage of the election process: relying on the party apparatus to turn out voters who will inevitably pull the Democratic lever, as they've done in every judicial contest for decades. But López Torres is doing what she did last year, campaigning on her own at subway stops and senior centers and pressing her literature into the hands of passersby. Last Wednesday morning she was in downtown Brooklyn, at the Court Street IRT station, offering her palm card to commuters and calling out in a soft voice that "It makes a difference who our judges are."

With her was Councilmember David Yassky, who represents Brooklyn Heights and Williamsburg and is one of the few elected Democratic officials to endorse her.

"Margarita is a top-quality judge who I would love to see on the bench," Yassky said as he introduced a constituent to López Torres. "Beyond that," he added, "what is at stake here is how we select judges—the good way or the rotten way. Her election would make a powerful statement."

Yassky said the Democrats should adopt the Working Families method of having an independent panel select its judicial candidates. "I think what they did was show us how it should be done," he said.

Campaigning just a couple of blocks from the courts where she presides, López Torres encountered a steady stream of lawyers. One of them, Eric Poulos, a criminal defense attorney, said he had long been a supporter.

"I met her when I tried a case before her," he said. "I was surprised how civilized and reasonable she was. So many judges run their courtrooms like a jail. She is one of a kind. She doesn't rubber-stamp the authorities, whether they are the city's corporation counsel or the district attorney. She's one of the most independent judges, which is why the machine wanted to get rid of her."

Most observers see López Torres's election as a long shot. The straight-Democratic-ticket voting habits of those who bother to cast ballots in Brooklyn's judicial races are too entrenched to be overcome, they believe. Should she win, however, "it would be pretty amazing," said Assemblyman Jim Brennan, another longtime supporter. "It would mean that it broke through to the general public that a change is needed. It would be a wake-up call to the [Democratic] party's executive committee that they need a significant change in how they're operating."