Recovery?

"Tom,

Just wanted you to know that I started a large scale project today. It's the De Novo project in NYC. It's packed to the gills with over one hundred coders. Everyone seems to be in good spirits and thankful to be back at work. In fact, I think many of us are suffering from post-traumatic stress. Whether it was spending months unemployed wondering how we were going to feed our families, or having the fortitude to put up with the "gansta gang" at Sullivan & Cromwell which was oftentimes the only show in town, we have been through a lot. Let's hope this recovery is sustainable."

Pamela Carvel Asks For Reconsideration of Her Claim of Estate Fraud

United States District Court Judge Shira Scheindlin

UNITED STATE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Case No. 08-CIV-3305-SAS
------------------------------------------------------------------------x
PAMELA CARVEL,

Plaintiff,
MOTION FOR RECONSIDERATION
-against-
NEW YORK STATE; et al

Defendants.
------------------------------------------------------------------------x
HONORABLE JUDGE SHIRA A. SCHEINDLIN, U. S .D. J
PLAINTIFFS’ MEMORANDUM FOR RECONSIDERATION
OF THE COURT'S AUGUST 8, 2008 OPINION AND ORDER

PLAINTIFF Pamela Carvel, appearing pro se because of lack of funds, moves pursuant to Local Civil Rule 6.3, for reconsideration of the Court's August 8, 2008 Opinion and Order (the "Order") whereby the Court dismissed all cases related to Anderson v. State of New York (07 Civ. 9599 (S.D.N.Y.) based on overlooked, misunderstood, or misperceived underlying grounds for the Complaint.

BASIS FOR RECONSIDERATION

1. Pursuant to Fed. R. Civ. P. 6(a) and rules 6.3 and 6.4 of the Local Civil Rules of the Southern District of New York, (see here for an analysis in another case) this request for reconsideration is timely, as it submitted within ten business days of the date of the docketing of the Opinion and Order.

2. Reconsideration is warranted where the Court overlooked controlling decisions or factual matters that might have influenced its prior determination on a matter at issue (See Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2004); Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995)).

3. There were not yet answers to Plaintiff’s Complaint. There was not yet a Motion to Dismiss. In fact, not all Defendants have been served yet with the Amended Complaint.

4. The underlying facts and requests for relief perceived by this Court are flawed. As a result the application of controlling decisions were not accurate as further described below.

5. This memorandum in support of reconsideration is written Pamela Carvel on behalf of her Amended Complaint; however, because dismissal was used for all cases accepted by Judge Scheindlin as “related” to Anderson, Pamela Carvel refers to “Plaintiffs” collectively. Pamela Carvel incorporates by reference all previously filed papers.

FEDERAL QUESTIONS EXIST

6. When Citizens can no longer trust the veracity of their State government, “officers of the court”, and state judge-made laws or regulations to uphold every citizen’s guaranteed rights, then it is the protections of the U.S. Constitution and U.S. laws to which Citizens are supposed to turn through the superiority of U.S. District Court to enforce guaranteed rights over State manipulations and violations.

7. Clearly the pressure to effective and rapidly silence corruption complaints (particularly by pro se litigants) is all-encompassing in the State court system, and apparently the District Court as well. The demand by Magistrate Peck that the Anderson case be “settled” and not go to public trial was the first indication that pressures from behind the scenes were not going to permit true revelation of the full extent of the damages caused by disloyal state employees ad other lawyers who deprived Citizens of the intangible right to honest services, or who colluded for individual profit from the deprivation of Plaintiffs’ guaranteed rights.

8. Plaintiffs, individually and collectively, accumulated irrefutable evidence of collusion between judges, law enforcement, state agencies, and certain “influential” lawyers who seek to improperly profit at Plaintiffs’ expense.

9. The lawyers against whom damages are sought had numerous ethical complaints filed, all of which asserted similar violations of the mandatory disciplinary regulations.

10. Anderson, and the dismissed cases accepted by Judge Scheindlin as related, had the potential of unmasking State employees who (along with other lawyers) personally benefited from violating their oaths of office.

11. Discovery in the public record has the potential of bringing forward more State employees as whistleblowers (including judges) – employees who now live in fear of being fired under the State system, as was Christine Anderson.

12. Plaintiffs disclosed evidence of extortion tactics used by “professionals” (lawyers as well as lawyer-judges), threats to silence victims, intimidation to eliminate claims, as well as Misprision of Felony and Misprision of Treason resulting in multi-million tax fraud, and felony murders.

13. Without a fair and objective trial in U.S. District Court of the substantive Constitutional and civil rights issues, including demonstration of offenses with the documentary evidence, systemic State corruption becomes Law of the Land, superior to all Constitutionally guaranteed rights and contrary to all U.S. Codes.

14. Pamela Carvel and other Plaintiffs demonstrated the improper tactics used to sidetrack the normal course of justice so that there are no decisions, much less appeals. This side-tracking is done i) by alleging an issue to be set for trial, and then withholding trial for years (routinely over TEN years in Surrogate’s Court); ii) by denying trial by jury; iii) by rendering decisions by transcript so that they cannot be appealed; iv) by failing to give notice to named interested parties; v) by failing to stay proceeding upon the death of a party; vi) by proceeding with orders and decisions without formal substitution of party and without notice to all named interested parties; vii) by providing one-sided funding to fiduciaries who are “friends” of the judge while denying equal funding to fiduciaries who support the victims who are the legitimate asset owners; viii) by threatening the elderly into capitulation by threats to withhold all income necessary for life itself; --- to name but a few of the tactics consistently being used by lawyers and State employees.

15. Such tactics violate equal rights and other guaranteed rights that are explicitly protected by U.S. Constitution and U.S. laws cited in the complaints and herein. Such violations make these complaints federal questions correctly before U.S. District Court.

PREMATURE ACTION TO DISMISS

16. Pamela Carvel had not yet served all Defendants when her Complaint was summarily dismissed without motion. Most Plaintiffs do not have answers to their complaints, let alone motions to dismiss in their cases entirely.

17. Dismissal at this stage is premature without discovery and opportunity to amend pro se complaints.

18. “The problem with answering or moving is that neither stays discovery, as you know, in federal court. So even if you make a motion on behalf of all defendants to dismiss, that's not an automatic stay.” (Judge Scheindlin to Assistant Attorney General Adlerstein, Transcript 10:6-10, Anderson, December 12, 2007).

19. This Court was not asked to supervise the departmental disciplinary committees.

20. This Court was asked for injunctive relief in the form of a Federal Monitor after years of evident abuses to prevent continuing abuses and violations of guaranteed rights, and to prevent the destruction of evidence.

21. Plaintiffs complain about systemic corruption by lawyers as individuals acting beyond legal limits. As such individuals, the Office of the New York State Attorney General should not be defending the acts of these individuals as State employees.

22. The Attorney General cannot both protect Citizens from official corruption while at the same time defending accused employees against Citizens who complain. This is an irreconcilable conflict of interests that necessitates an objective third party to monitor these proceedings.

23. It is within the authority of this Court to appoint a Special Master, Federal Monitor, and to issue all writs necessary for the injunctive relief to protect victims of civil rights abuses by state employees and other lawyers under color of state law.

24. Title 28 U.S.C. §1651(a) provides, in pertinent part, that the federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

IMMUNITY IS MISPLACED

25. Pamela Carvel (and other Plaintiffs) does not seek monetary damages to be paid out of the State Treasury. Much to the contrary, Plaintiffs assert that employees who abuse their official positions for personal gain for themselves or other individuals have defraud the State and Citizens of the intangible right to honest services, violated their oaths of office, violated the mandatory regulations of the legal profession, and colluded in other crimes against public policy. Such betrayal by employees should cause the return of all ill-gotten salaries while acting contrary to the oath of public office. Plaintiffs seek damages from individual lawyers, not from the State.

26. The United States Constitution does permit this Court to review the decisions of the EMPLOYEES of New York State (and other lawyers).

27. Supreme Court found in Jett v. Dallas Independent School
District (491 U.S. 701 (1989)), that 42 U.S.C. §1981 by its terms prohibits private
discrimination as well as discrimination under color of state law. The Court considered whether §1981 created a private right of action to enforce that prohibition against state actors. The Court concluded that, “the express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units.” (Id. at 720-721, 733).

28.“A plaintiff may sue a state official acting in his official capacity - notwithstanding the Eleventh Amendment - for prospective, injunctive relief from violations of federal law.” (Opinion and Order, p36).

29. The U.S. Supreme Court in Scheuer v. Rhodes (416 U.S. 232 (1974)) held: “The Eleventh Amendment does not in some circumstances bar an action for damages against a state official charged with depriving a person of a federal right under color of state law, and the District Court acted prematurely and hence erroneously in dismissing the complaints as it did without affording petitioners any opportunity by subsequent proof to establish their claims.”

30. Further in Scheuer v Rhodes, the Court noted "If the immunity is qualified, [416 U.S. 232, 243] not absolute, the scope of that immunity will necessarily be related to facts as yet not established either by affidavits, admissions, or a trial record. Final resolution of this question must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. 1983".

31.“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 410]).

32. Plaintiffs assert violations of civil rights and other rights of which so-called “legal professionals” “would have known”.

33. Plaintiffs also assert evidence to demonstrate that such violations of guaranteed rights are planned, intentional, and organized for profit to the chosen few who are lawyers and officials benefiting at Plaintiffs’ expense.

34.Plaintiffs further assert that discovery in the related cases to Anderson would further verify the civil and criminal allegations made by Plaintiffs, that are already confirmed as plausible in Anderson.

INTER-STATE CIVIL RIGHTS CLAIMS

35. Pamela Carvel (and other Plaintiffs) asserted, and demonstrated with facts, violations of 42 U.S.C. §§1981, 1983, 1985, 1988; the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (collectively “guaranteed rights”).

36. Several Plaintiffs asserted criminal conspiracies across state lines resulting in the deprivation and obstruction of civil rights.

37. Title 42 U.S.C. §1988 in relevant part confers on the district courts “protection of all person in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause” (emphasis added).

38. This Court was not asked to review State of New York court decisions. The acts of State employees were described to demonstrate such actions resulted in the conspiracy against rights.

39. Pamela Carvel’s complaint (and other Plaintiffs) did not solely assert damages from individuals as lawyers under 42 U.S.C. §1983, but also under §§1981,1985, and 1988.

40. Moreover, restrictions on injunctive relief pursuant to 42 U.S.C. §1983 apply only to “an act or omission taken in such officer’s judicial capacity”. This restriction does not apply to apparent bribery of a judge or other official to create unequal treatment between litigants, nor to lawyers acting individually to obstruct guaranteed rights for personal gain, nor to another State employee’s acts which are improper, illegal, or not within their jurisdiction. Title 42 U.S.C. §1983specifically provides that violators “shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress”.

41.Pamela Carvel (and other Plaintiffs) asserted that failure to stay proceeding upon the death of a party, and failure to formally substitute the representative of a deceased party stops jurisdiction of country Surrogate’s Court, and all decision and orders are null and void.

42. Additionally, 42 U.S.C. §1986 directly refers to “action for neglect to prevent”. In relevant part it states, “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case”.

43. Title 42 U.S.C. §1985 (2) applies to obstructing justice; intimidating a party, or witness if “two or more persons in any State … conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State”.

44. Title 42 U.S.C. §1981 guarantees equal right under the law. It does not provide that lawyers are more equal than their clients; or that fiduciaries that pay the judge are more equal than other fiduciaries that don’t.

45. This Court failed to note that Plaintiffs already directed their complaints to the state court system, the Attorney General for the State of New York, and the appropriate United States Attorney, as suggested in the Opinion and Order. Criminal charges may be under investigation by law enforcement and may yet be made against the Defendant individuals, but this does not prohibit Plaintiffs’ recovery of civil damages for the conspiracy to deprive rights under color of law and other related offenses, characterized by the Opinion and Order as only being “state law claims”.

46. This Court has not been asked to review the decisions of the departmental disciplinary committees. This Court has jurisdiction to prevent conspiracies against guaranteed rights by individuals who are/were employees of these disciplinary committees, including but not limited to making certain lawyers more equal than other lawyers and clients.

47. All Plaintiffs were thrown into an “Alice-In-Wonderland” frame of mind until the insider whistle-blowing by Christine Anderson revealed that a select few State employees were managing the scenario of mandatory State and U.S. codes in a manner to thwart the real and truthful facts from surfacing about systemic deprivation of guaranteed rights under color of State laws, rules, and regulations.

FIRST AMENDMENT

48. Conspiracy against Plaintiffs to violate First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (collectively “guaranteed rights”) were asserted in the complaints that were dismissed. Summary dismissal (without adverse motion in most cases) violates First Amendment right to redress of grievances, thereby preventing protection of all other rights.

49. The right of petition has expanded. It is no longer confined to demands for ''a redress of grievances,'' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. (See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961)).

50. The right extends to the ''approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.'' (California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 -15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980) (boycott of States not ratifying ERA may not be subjected to antitrust suits for economic losses because of its political nature)).

“RIGHT TO AN INVESTIGATION” MISUNDERSTOOD

51. Plaintiffs’ did not assert a constitutional “right to an investigation”.

52. Plaintiffs do, however, have an intangible right to honest services when state employees allege to investigate, but in fact, aid and abet in the cover-up of unethical and possibly criminal acts by manipulation, concealment, or destruction of evidence.

53. Although a scheme "to deprive another of the intangible right of honest services” (18 U.S.C. §1346, a criminal charge) most often applies to pubic officials, it applies as well to schemes to violate a private sector fiduciary's duty to provide honest services to his clients (See United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996), cert. denied, 520 U.S. 1273, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997)).

54. While private citizens cannot prosecute criminal statutes, criminal acts contribute to damages asserted by Plaintiffs’ civil complaints.

55.There is well-established law in our jurisprudence, which places an affirmative duty on all of us to expose any treasonous or criminal act, which comes to our attention (18 U.S.C. §§4, 2382). Failure to do so is defined as “misprision.”

56.It is the duty of every good citizen (presumably including officers of the court), knowing of a treason or felony having been committed, to inform a magistrate. Silently to observe the commission of a felony, without using any endeavors to apprehend the offender, is a misprision. Dismissal of Plaintiffs’ complaints thwarts the intent of U.S. laws as well as every citizens’ reliance thereon and obligations there under.

57.Misprision of treason applies to officials who have taken an oath to protect and defend the Constitution (18 U.S.C. §2382).

58.Misprision of felony (18 U.S.C. §4) applies to all citizens who have knowledge of the actual commission of a felony cognizable by a court of the United States. Acts appearing to include felonies in violation of rights guaranteed under the U.S. Constitution belong in U.S. District Court, not before the same state officials accused of such violations under color of state law (42 U.S.C. §1981 et seq.).

59. Anderson demonstrates that “government” DID INVESTIGATE and apparently state employees falsified the evidence to harm individuals, possibly Plaintiffs, for the unequal benefit of favored attorneys over Plaintiffs and the interest of all Citizens.

60. In Zahrey v. City of New York, (No. 98 Civ. 4546(LAP), 1999), on a motion to dismiss, the District Court dismissed the claims against defendant Coffey on the ground of qualified immunity. Without determining whether a prosecutor's fabrication of evidence violated a constitutional right, this Court ruled that Coffey was entitled to qualified immunity because "the law was not `clearly established' in 1996 that a prosecutor's fabrication of evidence violated a person's constitutional rights."

61.On appeal to the U.S. 2nd Circuit Court of Appeals for the Second Circuit, (Zahrey v. Coffey, No. 99-9119), this Court’s dismissal was reversed and remanded: “We hold that there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity, at least where the officer foresees that he himself will use the evidence with a resulting deprivation of liberty. … [W]e conclude that the allegations of the complaint suffice to indicate that a qualified immunity defense may not be sustained without further development of the facts.”

62. Pamela Carvel’s complaint was not served to all defendants, and no Motion to Dismiss was filed before the Opinion and Order to dismiss. This Court’s presumption of motions to dismiss (without the actuality) applies to many other Plaintiffs as well. Certainly, there was no opportunity to verify though discovery the falsification of evidence by State employees.

ROOKER-FELDMAN DOCTRINE IS INAPPLICABLE

63. There are no State proceedings dealing with the issues raised in Plaintiffs’ complaints, or with these Defendants; the relief sought (injunctive relief against the state and money damages against individuals) has not been sought in State courts.

64. This District Court has not been asked to change any State decisions.

65. Plaintiffs’ complaints do not concern actions properly “judicial in nature” since Plaintiffs assert that revelations in Anderson confirm accusations of improper acts by individuals beyond the legal limits of their official positions, thereby harming Plaintiffs by deprivation of substantive and material guaranteed rights under U.S. laws.

66. The Supreme Court case of Exxon Mobil Corn. v. Saudi Basic Industries Corp. (544 U.S. 280 (2005)) clearly shows that claim preclusion is a separate doctrine entirely. In Exxon the requisite elements that must be met for the Rooker-Feldman doctrine to apply are defined as:

a. First: The case must be brought in District Court by a party that has already lost in state court. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). Pamela Carvel’s complaint (and other Plaintiffs) of official corruption, causing damages by a conspiracy of lawyers, in deprivation of rights, has never been brought in State court.

b. Second: The injury claimed must be as a result of the judgment itself. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). There is no “judgment”. The complaint in District Court concerns on-going abuse of civil rights under color of state law, or state authority, by state employees and other lawyers causing damages to Plaintiffs.

c. Third: A final judgment on the state court proceeding must have already been rendered before the federal action is brought. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). There has been no “judgment”, final or otherwise, no trial, and no hearing in State court on the subject matter contained in the Complaint.

d. Fourth: The federal case must invite review and rejection of the state law claim; if the claims are not identical, the Federal claim must be inextricably intertwined with the state law claim, so as to implicate common facts pertaining to the same transaction or occurrence. (District of Columbia Court of Anneals v. Feldman, 460 U.S. 462,483 n. 16 (1983)). This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). Although the District Court cites previous federal and state cases in which Pamela Carvel was a party, NOT ONE of those cases contains the Constitutional and other issues contained in the instant complaint by Pamela Carvel (and other Plaintiffs). Since official corruption causing deprivation of civil rights was not part of any State proceeding, since there was no previous injury from judgment since there was no final State court judgment, therefore Rooker-Feldman does not apply.

67. It is an abuse of discretion to dismiss a declaratory judgment action in favor of a state court proceeding that does not exist (Michigan Tech Fund v. Century Nat'l Bank of Broward, 680 F.2d 736, 742 (11th Cir. 1982) (reversing discretionary dismissal of declaratory judgment complaint where there was "no pending state proceeding in which the issues in this case will necessarily be resolved"); (Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235 (11th Cir. 2000)).

68. In ARW Exploration Corp. v. Aguirre (947 F.2d 450 (10th Cir. 1991)), it was held that a district court abused its discretion when it dismissed a declaratory judgment action after a related state court proceeding had been dismissed. In that case the state court had not addressed the issues raised in the federal declaratory judgment action and those claims could no longer be adjudicated in state court because the state court proceeding had been dismissed.

STANDING

69.Plaintiffs assert that Anderson revealed and verified suspicions of systemic corruption by State employees acting in violation of their oaths of office.

70.Plaintiffs assert that such abuses of official positions should be immediately stopped by injunctive relief appointing a Federal Monitor.

71.Plaintiffs assert that such abuses caused personal and financial harm by these individuals who acted improperly while State employees in conspiracy with other lawyers. Such lawyers profited individually from obstructing Plaintiffs’ guaranteed rights under U.S. laws and Constitution. Plaintiffs seek damages for conspiracy to deprive rights against such individual lawyers through the dismissed complaints in New York Southern District Court.

72. Three tests determine if a would-be plaintiff has standing: the litigant must show:
(1) that he has suffered personally some actual or threatened injury,
(2) that the injury must be fairly traceable to the alleged illegal conduct of the defendant, and
(3) that the injury must likely be redressed by a favorable decision. (Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982)).

73.Causation and redressability are required (Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41-43 (1976)).

74. The Supreme Court has referred to the “injury-in fact” standard as the “irreducible minimum” required by the Constitution.

FEDERAL RULES OF CIVIL PROCEDURE 8, 9 & 12

75. The dismissal Opinion and Order very clearly regurgitated the basic facts (adding some of its own) in each complaint, thereby demonstrating the intelligible nature of each Plaintiffs’ statements.

76. A pro se litigant, without training in what judges expect to read, is always between a rock and a hard place when framing a Complaint – write short and plain and one hasn’t said enough to state a claim; amplify enough to make the claim plausible and one is labeled “confused”. Plaintiffs’ Complaints presented substantive facts without “bald assertions”. Such facts, especially when presented by pro se litigants, must be taken as true (Opinion and Order, p.30).

77. The revelations of organized systemic corruption revealed in Anderson further substantiates the statements that might have been otherwise labeled implausible. Continued discovery would further substantiate the preliminary facts asserted.

78. Plaintiffs made statements of fact and attempted to provide enough details (pursuant to Rules 8, 9, and12) to demonstrate that in the light of Anderson the claims were not speculative and should not be summarily dismissed sua sponte without further discovery in a knee-jerk reaction to pro se litigants.

CONCLUSION

79. Based on the facts and decision cited above, Plaintiff Pamela Carvel respectfully requests this Court reconsider returning all related Plaintifs’ complaints to active status because the Opinion and Order dismissing all related cases to Anderson misperceived Plaintiffs’ assertions and overlooked controlling decisions by the Second Circuit, the U.S. Supreme Court, and others, that require U.S. District Courts preserve and enforce civil rights and other rights guaranteed by the U.S. Constitution and other U.S. laws when those rights are violated under color of state law. Government and the State have an overriding obligation to Citizens and Law, not to errant employees and other lawyers.
August 18, 2008
____________________________________________
Pamela Carvel, pro se by lack of funds
28 Old Brompton Road, Suite 158
London SW7 3SS, England
NY tel/fax 1 212 751 6746

Senator John Sampson Holds A Second Hearing On the Corruption of the Departmental Discipline Committee

It was standing room only on September 24, 2009 at 250 Broadway, 19th Floor. The second hearing of the corruption in the New York State Unified Court System held under the direction of Senator John Sampson was a success, if you can say that about a hearing on the State Judicial System's destruction of people's lives and careers.



And there were tears, too.

But history was made, and there were enough people like me with blogs, videos, and recording equipment to preserve the essence of the day, which was that New York State has blotched up the judicial system real bad. Below is a statement sent to me from an attendee:

Public Committee on Attorney Conduct

Tel: 347-632-9775 email: pcacinformation@gmail.com Fax: 206-339-3784 Web: www.pcac.8k.com
Statement of John T. Whitely
President
Public Committee on Attorney Conduct

Thank you for the opportunity to submit this statement to your committee.

Public Committee on Attorney Conduct was formed in 2008 by concerned citizens and organizations for the purpose of replacing New York’s current attorney controlled grievance review system with one overseen and controlled by members of the public.

By way of background, although I hold a law degree from the University of Notre Dame, I have never practiced. Rather, as the chief executive officer of New York Stock Exchange registered and private companies, I have employed lawyers and law firms, and am fully familiar with the crisis situation presently confronting the New York State Bar as charge after charge of favoritism, cronyism and outright criminal conduct has been leveled against members of the grievance committees.

As your committee has heard at its previous session on attorney conduct, there exists clear evidence of corruption and abuse by the state’s disciplinary committees. Charges have included concealment of evidence, obstruction of justice, sexual assault by attorneys, concealment of pilfering of estates by attorneys, abuse of power, fraud, conspiracy and repeated violations of Constitutional rights.

Our purpose in submitting this statement is to place on the record certain facts and circumstances related to the experiences of attorneys, who unfortunately by their own choosing are not able to appear before you today. These particular attorneys – and there are many that fall into this category – are fearful that if they appear publicly to attack the bar establishment, they will be subjected to recrimination by the grievance committees, and precluded from ever seeking reinstatement, should that be their desire. Also, many of these attorneys do not wish to take part in a public proceeding where they would be forced to relive the circumstances of their unjust and illegal disbarment, which in each and every case stands as one of the most disturbing and humiliating experiences of their life.

Case histories of attorneys who have been victimized by the DDC typically reveal serious deprivation of fundamental Constitutional safeguards, as the Committee has often acted under directions from large law firms seeking to protect their own members or to damage competitors. In one situation, for example, an attorney threatening to bring action against a firm for defrauding a court immediately found himself the subject of an investigation and later disbarment by the DDC. Cases also involve the DDC engaging in intimidation and coercion by launching investigations of counsel brought in to defend lawyers charged with ethics violations. Still other situations routinely deny attorneys the right to confront – or even learn the identity of - law firms, who have secretly directed that the commencement of disciplinary proceedings.

In all of these situations, we find a grievance process that resembles the Star Chamber rather than the search for truth conducted consistent with Constitutional rights and protections. Today, without question, we find a DDC wielding total control over procedures and outcome, often violating its own rules and regulations by denying supposed safeguards designed to protect the rights of litigants. In some instances the DDC limits the rights of attorneys to defend themselves by failing to schedule depositions or, where the sessions are held, simply failing to properly record the testimony. In other cases, the committee has misused its estoppel rules by citing foreign state disciplinary rulings where none exist.

And where attorneys seek to challenge the DDC hierarchy for violating its rules and process, the staff can and often does simply ignore such communications. All this can be seen as evidence of the exercise of absolute power by a group of state employees, who have placed themselves above the law. Indeed, recent efforts to make limited changes at the DDC, including the substitution of committee counsel, are widely regarded as nothing more than attempts to rearrange the deckchairs on this ship that’s swiftly sinking into a sea of corruption, self dealing, gross negligence and incompetence.

Unfortunately, there are many cases, which can be cited recounting the very unfortunate and shocking facts related to the illegal actions taken against attorneys by state grievance committees that can accurately be described as criminal enterprises. Surely, if there was evidence that only one attorney, who was subjected to illegal and unethical conduct by the disciplinary committees, such injustice would not be tolerated. But, as you know from testimony that has been provided to your Committee to date, there are many such cases where attorneys- usually powerless, solo practitioners, and certainly never ever members of major New York law firms- have been victimized by a process established to protect, defend, and continually follow the commands of the powerful lawyers and firms that control the grievance committees.

It is time to end this fatally flawed system, which places attorneys in judgment of other attorneys. The very concept of peer review in this context is ludicrous, and would be truly laughable, were it not for the personal destruction, shattered careers and lives, foregone opportunities, and incalculable damages that have resulted from the system of fraud and corruption that has been substituted for justice.

We have been told that it is time for change. It is also time for questions. Why should attorneys, who have already established what we regard as an illegal and unconstitutional monopoly control over access to the court rooms, be allowed to police their own conduct? Why not place criminals in charge of overseeing criminals? Attorneys sitting in judgment of their brethren wind up reviewing the actions either of friends and associates or competitors. In all such situations, there is no way to avoid a direct or indirect conflicts of interest.

Yet, you have already heard supposed leaders of the bar claim that it would be impossible and unworkable to allow members of the public to control the attorney disciplinary process. Well, just as public outrage led to civilians finally overseeing police review boards, it is clearly time for the public to be placed in control of the attorney grievance process as well. The record being collected by your committee shows that the members of the bar have proven that they cannot properly – and legally- police themselves. It is time to end this travesty.

To this end and following the completion of its own review process, the Public Committee on Attorney Conduct will be submitting draft legislation for consideration by your Committee to terminate and replace the current disciplinary committee structure with citizen controlled bodies. We urge you to move forward with all deliberate speed to establish citizen control over all New York State attorney grievance committees.

Finally, PCAC also fully supports the pending requests to Attorney General Eric Holder to appoint a Special Prosecutor to investigate the epidemic of honest services fraud in the New York State court system, and the appointment of a Federal Monitor to oversee the speedy and lawful transition to the proposed citizen controlled attorney grievance system.

Thank you for your time and consideration.

New York, New York
September 24, 2009

Christine C. Anderson v The Appellate Division, First Department, Goes To Trial October 13, 2009

Thursday, April 30, 2009

Anderson's $10 Million Lawsuit Proceeds Against Corrupt Discipline Committee
Staff Attorney's $10 Million Lawsuit Proceeds Against Discipline Committee
The New York Law Journal by Daniel Wise - April 30, 2009

An attorney who was fired after working six years as a staff lawyer at the 1st Department's disciplinary committee may proceed with a $10 million damage lawsuit that she was discharged in retaliation for claiming her superiors were "whitewashing" cases, a Southern District of New York judge ruled Monday. However, the judge, Shira A. Scheindlin, (pictured at right) threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by the Office of Court Administration. Christine C. Anderson contended that her June 2007 firing was in retaliation for complaints she made to her superiors at the disciplinary committee that at least nine cases had been handled too leniently because the lawyers being investigated were politically connected or were represented by attorneys who had previously worked for the committee (NYLJ, Oct. 30, 2007). Anderson, who was born in Jamaica, also claimed the committee had discriminated against her on the basis of race, color and national origin. (See the Ethics Program were several of the Anderson Defendants are faculty).

The disciplinary committee operates under the aegis of the Appellate Division, First Department, and Anderson sued the OCA; Thomas J. Cahill, the committee's chief counsel during the years Anderson was employed there; Sherry K. Cohen, who became deputy chief counsel and Anderson's supervisor in 2003; and David Spokoney, the 1st Department's deputy clerk. With the exception of Cahill, who resigned in 2007 after 10 years in the post (NYLJ, July 23, 2007), the other individual defendants remain at their jobs. The 1st Department's disciplinary committee polices the conduct of attorneys practicing in Manhattan and the Bronx.

In allowing Anderson to proceed with her retaliation claim, Scheindlin found that her contention that the committee had "whitewashed" as many as nine cases touched upon a subject of public concern and was protected under the First Amendment. A jury will have to determine whether the defendants fired Anderson because of the concerns she raised or because she had been insubordinate, as the defendants contend, Justice Scheindlin concluded in Anderson v. State of New York, 07 Civ. 9599. Scheindlin noted that Anderson in a "host" of e-mails had made "evident" her "hostility toward" and "refusal to cooperate" with Cohen, her supervisor. Nonetheless, Scheindlin ruled that "a reasonable jury could find that the defendants refused to remove Cohen as Anderson's supervisor so they could use Anderson's inevitable resistance to Cohen's continuing supervision as a pretext for firing her."

PRECEDENT DISTINGUISHED

In concluding that Anderson's complaints touch upon matters of public concern, Scheindlin rejected OCA's argument that Garcetti v. Ceballos, 547 U.S. 410, a 2006 U.S. Supreme Court precedent, was controlling. The attorney general's office, which represented OCA and the individual defendants, contended that Anderson's First Amendment claim must be rejected under the authority of Garcetti. The Supreme Court rejected a First Amendment retaliation claim brought by a deputy district attorney who claimed he was fired because he recommended the dismissal of a case. The prosecutor had urged dismissal because a flawed affidavit was used to obtain a search warrant. Rather than raising an issue of public concern, Justice Anthony M. Kennedy wrote in a 5-4 ruling in Garcetti that the prosecutor was acting as a public employee with regard to an internal matter when he "fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case." Scheindlin found Anderson's case to be "patently distinguishable" from Garcetti. "The prosecutor in Garcetti spoke about a single case pending in his office," she wrote, while "Ms. Anderson spoke out about systemic problems at the [disciplinary committee], thereby making her speech protected." "Where a public employee's speech concerns a government agency's breach of trust, as it does here," she wrote, "the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions."

DISCRIMINATION CLAIMS FAIL

Scheindlin found that none of the three remarks that Anderson alleged Cohen made had any bearing on her bias claims. One alleged remark -- that the homeless are "smelly" -- did not reflect upon a group protected by federal civil rights laws, the judge ruled. The other two alleged comments -- that there are too many blacks in the subway and blacks were moving near Cohen's vacation home -- were not "directed" at Anderson, "unrelated to her discharge" and allegedly uttered about one year before her firing, Scheindlin wrote.

Anderson also presented deposition testimony from three present or former minority employees who had expressed views that Cohen was biased. Two of those witnesses, one of whom was a lawyer, expressed views that reflected subjective beliefs that are "devoid of any factual circumstances linking Cohen to any discriminatory conduct," Scheindlin found. The testimony of the third minority witness, Kenneth Van Lew, an investigator who left the office at the time of his deposition, provided "concrete instances in which he believes he was treated less favorably by Cohen than similarly situated Caucasian employees," Scheindlin wrote. But even though Van Lew's testimony provided "some credible evidence" of discrimination, the bias-based claims had to be dismissed, Scheindlin concluded, because "there is simply no evidence" that any alleged bias had tainted the decision of the ultimate deciding authority, the 1st Department's justices serving upon the court's Departmental Disciplinary Liaison Committee. The state defendants were represented by Assistant Attorneys General Lee A. Alderstein and Wesley E. Bauman. The attorney general's office did not respond to a request for comment. Anderson was represented by John A. Beranbaum of Beranbaum Menken Ben-Asher & Bierman.

CLICK HERE TO READ ANDERSON BACKGROUND, "Anderson Advances, Federal Jury to Hear 'Ethics' Corruption, Whitewashing"
Posted by Corrupt Courts Administrator at 3:25 AM
28 comments:

The VOICE of One of the related cases said...

Thank GOD Judge Scheindlin did the right thing regarding Anderson's case..Now there were
(6)cases that were marked related to Christine Anderson 's case that Judge Scheindlin dismissed. Some of these cases are currently pending in the Second Circuit Court of Appeals. These cases need to be remanded back to the District Courts, Judge Scheindlin.
April 30, 2009 4:34 AM
Anonymous said...

Can't wait to see what happens next. Let the s-- finally hit the fan and let these thugs get what the finally deserve!!!!!!AMEN
April 30, 2009 4:35 AM
Anonymous said...

A lot of nervous people at the "ethics" committee today. I love it.
April 30, 2009 9:13 AM
9th jd victim said...

A federal court around NY taking corruption seriously. Corrupt Nicolai to let go of his corrupt grip on law and order. Oh, what a beautiful day!
April 30, 2009 10:57 AM
victim of DDC said...

Anderson got it right. The DDC (1st Dept and more than likely all of them) is corrupt, the fix is alsways in. The foxes are in charge of the hen house. There is a conflict that no one wants to deal with but that's how they fix things. The whole thing should be removed from the control of the courts and attorneys. Independent non-attorneys should operate the ethics process, otherwise there are no ethics which is the situation we have now!
April 30, 2009 10:59 AM
disgusted state empl said...

God bless Anderson. If she speaks publicly, I will come forward. And boy do I have a lot to say about corruption within the NYS court system. Anderson had 6 years; I've had 22 years. You can't make up what kind of corruption I've witnessed.
April 30, 2009 11:33 AM
Anonymous said...

GOOD LUCK Christine Anderson!!!

April 30, 2009 10:30 PM
Anonymous said...

the DDC in Westchester Co. is a bad joke! They piss in your face and laugh at you and tell you to get lost! Lots of CORRUPTION here!
April 30, 2009 11:50 PM
Anonymous said...

See the article in today's NY Daily News about Cuomo's investigation into the NYS pension scandal. They are getting closer to Silver and have a close associate,Patricia Lynch,in their sites. Maybe they are going through the web of corruption, which is the politics of NYS.

Can't wait till it crosses over to the judiciary.

yeah.
May 1, 2009 9:26 AM
Anonymous said...

Eliot is correct..the absolute solution is for ALL OF YOU COURT EMPLOYEES...THERE ARE MANY...to come forward with your extensive knowledge and on site experience...and shake this system up.

I have stated before... that OCA will not fire more than one person at a time... because it appears too personal if they do..as the singular ones actually are, but OCA gets away with attributing them as work related.

All of you...esp the large number of women and female judges who have cowered over court discrimination for years and thus are guilty of permitting OCA to perpetuate these acts of terrorism..have an obligation to come forward to correct a system that could destroy your own children or family in the very near future!

There are women in upstate NY that want to come forward..but fear the evil and maniacal, administrative chief female judge of the 8th district and her select gang of female mobster supervisor hacks..that are terrorizing our community!

To you employees...I remind you ... you are but one lie and one political command away from losing your careers and homes.... and if that does not inflame you to assemble and work in unison to bring forth the information, crimes and discriminations that these" OCA Suppposed administrators of justice are violating daily in the faces of the left behind.. worthy state and federal court judiciaries, than there is nothing for you to do but accept the violent hostility you deal with in WNY year in and year out!

It is no longer time for you employees and judges to sit back and wait to see who else comes forward or to view the result of that one big, nasty and falsly charged federal court case..pending for 5 yrs (because OCA forced many employees to commit perjury and they fear that the community will soon become aware of this proof) that you all are cognizant of. The result show will shame many of you workers...liars or not!

Show some guts and clean out your community before they clean you out. Buffalo.... you know it is bad there...really bad....the feel to fix it is in the politics for the first time ever! Plumadore the devil is gone, so hurry up before the new chief puts in another monster of the law!
May 1, 2009 9:49 AM
Anonymous said...

To the above...

There are 59,700 tips/complaints.. Obviously people are coming forward..

Where else should they go??

Do we have a special prosecutor assigned yet??

The U.S. Attorneys have been a waste of time..
May 1, 2009 10:17 AM
Anonymous said...

Speaking of which.. wasn't the Brevetti in the Cuomo article mentioned above, a U.S. Attorney???
May 1, 2009 10:28 AM
Anonymous said...

SDNY US Attorney is and has been a do nothing outfit. People come in with a case all prepared and hand it to them, they may think about it, but not too hard, them they blow you away. They all suck! And the sad thing is we pay taxes for this! What value do we get - NOTHING but BS.
May 1, 2009 1:20 PM
Anonymous said...

In California the AG went after N.Y lawyer Mel Weiss. Spitzer the AG did nothing.
Someone should make the fact that Spitzer and now Cumo look the other way when it comes to prosecuting these people.
Cuomo should have investigated the Anderson case and the Allen Issac case.
Instead he looked the other way.
The least he should have done was ask for a special outside prosecutor.
I wonder if he would prosecute them if he was not getting money from laywers when he runs for office.
I thought campaign election reform would help, a lobyist then told me that they would play a shell game.
The lawyers would pay orginizations to endorse a particular canidate.
May 1, 2009 1:52 PM
Anonymous said...

This blog may have gotten tips...but the employees of OCA, WNY have not come forward with ANY legal action OR INFORMATION enmasse to force the local MEDIA AND FEDERAL AG in Buffalo, where the paper has a readership of about 300,000,one of the largest in the nation...to properly investigate and inform those citizens who are not privy to court activities or politics of this criminal entity, that has clouded the judicial system in WNY!

The Buffalo News knows the pending federal court case is an OCA scam..but it is only one case( OCA has threatened and fired anyone associated with this person and the employees fear for their jobs and their lives) and the News doesn;t want to stink up WNY with one complaint! I guess 2 or more makes for more credible reader believability!

It is important for a group of people within the system to come forward, to force the Buffalo News and the FBI into investigating.

Both of these groups do not want to expose the disgusting NY courts to the public or the criminals who already have little respect for them...and who will then observe excellent employees fired over political whims and citizens transcripts altered to secure convictions..and that may just create another ..... Attica.

These two operations only function when the public is up in arms...not one member!

"Employee action" for civil rights violations is an established situation for federal court...and the ones that will permit illegal court activity to be revealed...ask Ms. Anderson. These are the cases that are the front door manifestations!
May 1, 2009 3:03 PM
Anonymous said...

Most of the people who would like to do something don't have the wherewithal to the bring suit.. and/or may feel alone in a given county.

I know in my County there were a number of people affected by the biased against women/fixer Judge..

some are known, and perhaps waiting for the right time...

a small ad in the pennysaver might bring more out... (a cheap and effective educational tool)..

the paper doesn't want to run it?? sue them for discrimination... ;)
May 1, 2009 3:22 PM
Anonymous said...

Isnn't this stuff with the OCA covered by the Whistleblower Act?
May 1, 2009 5:04 PM
Galison said...

Is Cuomo complicit?

Consider this:

I hand delivered the following to Cuomo and two of his assistants and have received NO RESPONSE

The complaint regards a conspiracy of several top mafia lawyers with two Supreme Court Judges to steal the transcripts of my case.

Later it was established that Lippman was personally involved in the whitewash of disciplinary complaints against the guilty lawyers. Cuomo actually assigned one of the judges I complained about to investigate the Merrill Lynch fiasco.


Ms. Nina Fass
Assistant Attorney General
Office of The Attorney General
120 Broadway 22nd floor, NY 10271

October 12, 2008

Re: Concealment of Public Documents by Supreme Court Judge Herman
Cahn, with the Collusion of Judges of the Supreme Court and Appellate Division,
First Department and the First Departmental Disciplinary Committee, and the State Commission on Judicial Conduct, for the Benefit of the Law Firm of Richard Ware Levitt and Gerald Lefcourt.

Dear Ms. Fass,

Thank you again for your attention to the details of my complaint. While I encourage you to contact my lawyers, please be aware that they are not directly involved with my complaints against the individuals and agencies discussed below. They possess neither the information nor the documentation required to adequately assess my complaints.

Our Conversation of 10/10/09

On 10/10/08 we spoke about the allegedly illegal withholding by Judge Herman Cahn of public records, specifically transcripts of an ex parte meeting at which a restraining order was placed against me, to the benefit of the Attorney Leon Friedman, his firm, The Law Offices of Richard Ware Levitt, and their clients. We also discussed the sequence of acts by judges of the Supreme Court and the First Appellate Division as well as the DDC and CJC, which abetted Judge Cahn’s allegedly illegal withholding of public records.

On several occasions you asserted that simply by pronouncing on the record that court records be sealed, Judge Cahn could legally and bindingly seal those records, even against a party in the instant case. I argued that by virtue of Rule 216.1 a judge could not. Similarly, if a Judge imprisons a person without obeying the judicial rules regarding due process, he commits the crime of “unlawful imprisonment”. Judge Cahn’s concealment and/or destruction of the transcripts of the 12/7/09 conference without regard to Judicial Rule 216.1 is in violation of, without limitation, the criminal laws listed on page four.

The Sealing of Court Documents By New York State
Supreme Court Judges is Strictly Regulated by Rule 216.1

It is within a Judge’s discretion to grant or deny a motion to seal Court Records filed by one or more parties if he adheres to Rule 216.1 It is NOT within a Judge’s discretion to seal a court records if he does NOT adhere to Rule 216.1, or if no motion is filed.

Uniform Rules for N.Y. Trial Courts. Rule 216.1. Sealing of Court Records. “Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.” (Section 216.01, Uniform Rules for N.Y.S. trial courts)

Judge Cahn Violated Every Precept of Rule 216.1: He Did Not Provide a Written Finding of Good Cause, and He Did Not Consider The Interests of The Parties or The Public.

As I pointed out to Judge Cahn, Judge Silbermann, Judge Lippman, the DDC, the CJC; Judge Cahn did not follow a single precept of Rule 216.1.

- Judge Cahn did not produce a written finding of good cause, or even a verbal finding of good cause, despite numerous letters requesting that finding of good cause. This fact alone invalidates his claim that the court records were “sealed”.

-Judge Cahn did not consider the interests of the public:
-
The “public interest” is strictly defined as the public’s Constitutional Right to obtain the documents. The sealing of public records is by definition against the public’s interest. According to George Carpinello (Chair of the New York State Advisory Committee on Civil Practice- the body that drafted 216.1): “The public’s qualified right of access to court records and proceedings is derived from the First Amendment of the U.S. Constitution, New York’s comparable constitutional provision, and the common law. The First Amendment gives the public a qualified right of access to those judicial proceedings in which 1) the public has traditionally been given access and 2) in which public access “plays a significant positive role in the functioning of the particular process in question.”” Judge Cahn wrote: “Pursuant to Uniform Rule 216.1… A balancing of those wishes [of the parties] against the public interest is required. A [written] finding of good cause is necessary in order for a record to be sealed.”

-Judge Cahn did not consider my interests:

It cannot be argued that I have an interest in NOT knowing why an illegal restraining order was placed on me. My interest is to know what happened in that ex parte meeting from which I was excluded. Furthermore, there is no circumstance under US law where a person can be accused and sanctioned without due process, or where transcripts can be sealed from a party in a case.

-According to Mr. Friedman, Judge Cahn did not consider the interest of the opposing party. In a sworn statement to Judge Silbermann, Mr. Friedman wrote:

“I affirm under penalties of perjury that I have no knowledge of any such secret transcript… If a transcript of the December 7, 2005 with Judge Cahn exists, we of course have no objection to its being released to all parties.”

If Mr. Friedman is not lying (under penalties of perjury), then neither party- nor the pubic- has an interest in sealing the transcript. The only party benefiting from the sealing of the transcripts is Judge Cahn himself, to cover up his illegal ex parte meeting and his illegal restraining order. However, it is obvious that Cahn committed these illegal acts for the benefit of Mr. Freidman and his clients, as they were the sole beneficiaries of those acts.

A Motion to Seal (With a showing of Good cause) is Required Before
a Judge Can Seal Court Records, But No Motion was Made by Either Party.

Sealing of Documents is necessarily instigated by a request of one or both parties. In this case neither party requested confidentiality. Mr. Carpinello writes: “New York courts have interpreted the rule pertaining to the sealing of court records as requiring a two-step analysis for determining a motion to seal. The first step is a showing on the movant’s part that there is good cause to seal the record. Only after good cause is shown does the court engage in a balancing process, weighing the movant’s cause for sealing against the public interest in access to court documents”.

If Mr. Freidman and his colleague Ms. Stryker were unaware of the existence of the court records and have no objection to their dissemination to all parties, and I was not even present, who showed good cause on a motion to seal? Who made a motion to seal? There is no record of any such motion being filed by anyone.

Judge Cahn Understands Rule 216.1

In our conversation, you asserted that if Judge Cahn “inadvertently” violated certain parts of Rule 216.1, his sealing of the documents may still be valid. Apart from the fact that ignorance of the Law does not excuse its violation, consider what Judge Cahn himself wrote about 216.1. In L.K. Station Group, LLC v. Quantek, Judge Cahn writes:
“the presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access”. To grant a sealing order, a party must show, "with respect to each specific document which it seeks to have sealed," that "good cause" exists to seal that particular document”. Citing Matter of Hofmann, 284 AD2d 92 (1st Dept. 2001), Cahn agreed with L.K. that the "First Department rejects wholesale sealing of motion papers, even when both sides to the litigation request sealing." Since sealing of court papers only is allowed to further "compelling objectives," such as the need to preserve trade secrets, the court "is required to make its own inquiry to determine whether sealing is warranted," he added. To grant a sealing order, a party must show, "with respect to each specific document which it seeks to have sealed," that "good cause" exists to seal that particular document, and that "there is no feasible alternative to sealing," wrote Judge Herman Cahn. (see: Bid to Seal Records in $2.5 Billion Lawsuit Rejected, by Noeleen G. Walder
, New York Law Journal
, August 14, 2008)

By Confiscating and Withholding the Court Records Without Regard to
Rule 216.1, Judge Cahn Effectively Stole the Records In Order to Avoid
Responsibility For an Illegal Ex Parte Meeting and an Illegal Restraining
Order both Made the Sole Benefit Of Leon Friedman, His Firm and his Clients

In light of the above Judge Cahn has violated the following New York State Penal Codes:
§ 195.00 - Official misconduct. (class A misdemeanor).
§ 195.05 - Obstructing governmental administration in the second degree. (class A misdemeanor)

§ 145.14 - Criminal tampering in the third degree. (class B misdemeanor).

§ 175.20 - Tampering with public records in the second degree. (class A misdemeanor)

§ 175.25 - Tampering with public records in the first degree. (class D felony)

§ 215.40 - Tampering with physical evidence. (class E felony)

The Other Parties Named Conspired to Abet The Felonies
and Misdemeanors of Judge Cahn and Mr. Friedman by the
Following Acts, All for the Ultimate Benefit of Leon Friedman and His Firm:

- Judge Silbermann violated her mandate to enforce Rule 216.1 and violated my Rights by refusing to compel Judge Cahn to follow Rule 216.1 and requiring me to file a motion.

-Judge Fried violated my right to Due Process by denying my motion to receive the transcripts with prejudice without considering the merits.

-The CJC violated my right to a fair trial by failing to recuse Richard Emery, longtime friend and associate, and attorney of Mr. Friedman, and allowing him to adjudicate my case against Judge Cahn. They also failed to view any evidence against Judge Cahn.

-The DDC violated my rights by lying about the jurisdiction of Mr. Friedman and thereby refusing to process my complaints against him for three years, including complaints that would have disqualified him from the underlying case, such as tampering with evidence.

-The First Appellate Division violated Judicial Law § 118 by refusing to refer Mr.
Friedman to the Disciplinary Committee despite proof of registration fraud.

The Attorney General Must Investigate This Pattern of Corruption by NYS Judges

Will the Attorney General’s Office add its name to this systematic chain of corruption for the sole benefit of a Partner in New York State’s most notorious Mob Law firm? If the Attorney General’s Office fails to investigate documented crimes committed by the Judiciary for the illegal protection of Mafia Lawyers and their clients, they are neglecting their duty to protect the public, and the State of new York at the mercy of gangsters and thugs.

By pursuing Justice in this case I am risking my life. If all of these Judges and Agencies are willing to break the law in order to protect Mr. Friedman and his firm, the stakes must be very high for all concerned. Mr. Ware Levitt and his firm have already severely damaged my livelihood by tortuous and criminal means in the underlying case. Their current clients include the most ruthless Mafia hit-men alive. The concerted illegal acts of the Judiciary against me, make it obvious that I am entirely outside the protection of the law and the courts. That is why I need protection from you. Otherwise, what justice can my survivors expect if my body washes up on the shore of the Hudson River?

Sincerely,
Cc:
Hon. David Paterson
George Carpinello Esq.
Neal Brickman Esq. William Galison
Rep. Jerrold Nadler
Sen. Tom Duane
AG Andrew Cuomo
May 1, 2009 7:51 PM
Anonymous said...

Read the Shira work of art and fail to see the CORRUPTION issue? Am I missing something? Can someone help me out on this?
May 1, 2009 8:47 PM
Anonymous said...

The Office Of Court Administration will and has lied about everything you could imagine or not imagine!

They have laws they must process for the "people" of the State of NY...but they themselves feel entitled to ignore and violate them when it comes to their agendas... those of the holy justice system promoting it's real work ethic... the infestation of drugs, sex, money and power!

Transcripts from "certified" court reporters are as worthless as hearsay...but the NY taxpayer pays these slugs... 6 figures to purposely falsify their contents so their employer..OCA...can have any result they wish with the lives of all NY state citizens. Do court reporters ever wonder if their family members would have to go before a judge who commands an alteration of the family member's transcript...what it would feel like if they were innocent and the transcript officially states otherwise? I do....and it is life altering! And the killer is that the Judges want raises, as they request court reporters to commit more of these crimes of falsifying court records... all taken under oath? You may as well just unsolemnly swear...because neither has any credance!

We terrorized citizens allow this to continue and throw up our arms and state...we don't have the ability or savvy to file actions in federal court..even though we are court trained...highly paid employees.

The internet and pro se actions are too difficut to comprehend for us in the justice business...because we got our jobs from politics and not tests or ability.

All this insanity gets reported on this blog daily and the US Government just turns it's block heads and waits for the great judicial crash to destroy what little we have left of this "once" great country!
May 2, 2009 8:43 AM
Anonymous said...

The Christine Anderson case is all about corruption. So when will the federal authorities reveal this corruption?
May 2, 2009 11:40 AM
Anonymous said...

The feds words are empty, with no follow through! More BS
May 3, 2009 10:57 AM
Anonymous said...

Flush the DDC down the toilet, it's the only way to stop the corruption.
May 4, 2009 10:57 PM
Anonymous said...

DDC dismises case that involved/ blatant theft. I now know what everyone on this site is saying about corruption in the DDC. They actually twisted the complaint to fit their dismmisal letter. What is my next step?
July 4, 2009 9:25 AM
Anonymous said...

They do discriminate
Census shows that 28% Hispanic
26% African American 9.8 % asian
they have only 1 asian 2 or 3 Hispanic. 2 or 3 African American
It is a joke to say that they do not discriminate
Good luck Christine.
August 19, 2009 11:09 AM
Anonymous said...

Court Reporter at a trial, I was denied the right to a court reporter at a trial in Erie County Court, yep, judge said I could not have a court reporter........
so it makes sense why the jury was told I had diseases I do not have, no experts, no witnesses,
I was not even allowed to view my file..........that is because they are passing around false medical information, so my lawyers file

false bill of particulars...........
so I am allowed a false trial
an inqusition
a witch hunt

then I am threatened to sign on the line............

stick it!

Public Corruption at its finest in the 8th..........
August 20, 2009 9:55 AM

From Betsy Combier: The First Department has been questioned before:

894 F2d 512 Mason v. Departmental Disciplinary Committee Appellate Division of the Supreme Court of the State of New York First Judicial Department:

894 F.2d 512

C. Vernon MASON, Plaintiff-Appellant,
v.
DEPARTMENTAL DISCIPLINARY COMMITTEE, APPELLATE DIVISION OF
THE SUPREME COURT OF THE STATE OF NEW YORK, FIRST
JUDICIAL DEPARTMENT: Office of Chief
Counsel, Defendants-Appellees.

No. 545, Docket 89-7918.

United States Court of Appeals,
Second Circuit.

Argued Oct. 4, 1989.
Decided Jan. 16, 1990.

Stephanie Y. Moore, New York City (William M. Kunstler, Ronald L. Kuby, New York City, on the brief), for plaintiff-appellant.

James G. Greilsheimer, New York City (Alan M. Klinger, Joseph J. Giamboi, Stroock & Stroock & Lavan, New York City, on the brief), for defendants-appellees.

Before NEWMAN, PRATT and MAHONEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

C. Vernon Mason, a lawyer, appeals from the August 24, 1989, judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) dismissing his complaint, which sought to enjoin an investigation of him by a state court disciplinary committee looking into possible violations of the Code of Professional Responsibility. The District Court concluded that the complaint failed to allege circumstances sufficient to warrant an exception to the abstention doctrine as enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and, more particularly in the context of lawyer disciplinary matters, in Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). We affirm.

Background

In June 1988, the Departmental Disciplinary Committee of the New York Supreme Court, First Judicial Department ("the Committee"), which is the appellee here, began an investigation of Mason on its own initiative, acting pursuant to N.Y. Rules of Court Sec. 605.6(a) (McKinney 1989). The Committee acted in response to numerous inquiries and allegations it had received concerning Mason's conduct in connection with his representation of Tawana Brawley. Brawley had become the center of a controversy arising out of her claim that a group of men had abducted and raped her. In the course of the controversy, the Governor of New York appointed the Attorney General, Robert Abrams, as a special prosecutor to investigate Brawley's claim. Abrams convened a special grand jury, which sought unsuccessfully to obtain testimony from Brawley and her mother. Ultimately the Grand Jury issued a report concluding that Brawley's claim was without basis in fact.

During the course of the Grand Jury's inquiry, the Committee had notified Abrams that it had begun an investigation of Mason and had requested that relevant materials be produced after the Grand Jury completed its work. When that occurred, Abrams announced that he would request the appropriate disciplinary committees to consider disciplinary proceedings against Brawley's advisers, including Mason. In an October 6, 1988, letter to the Committee, Abrams detailed the respects in which he believed Mason had violated the Code of Professional Responsibility. In an October 14, 1988, letter to Mason, the Committee informed him of its investigation, enclosed a copy of Abrams' October 6 letter, and asked him to respond by November 4 to the allegations of professional misconduct in Abrams' letter.

Lawyers purporting to represent Mason twice asked the Committee for an extension of time to reply; both requests were denied. One of these lawyers submitted a response to the Committee on November 4. Thereafter new counsel for Mason wrote the Committee to ask for a return of the November 4 response; this request was denied. In subsequent correspondence, the Committee informed Mason that one of his lawyers, Stephanie Y. Moore, Esq., could not represent him as she was not admitted to practice in New York.

Mason then began a series of actions in state court. On December 5, 1988, he moved in the Supreme Court for disclosure of the Grand Jury minutes; this motion was denied. On December 8, the Committee again told Mason that he could not withdraw his response, but gave him until January 9, 1989, to file a supplemental response. On December 20, 1988, Mason began an Article 78 proceeding in the Appellate Division, seeking an order requiring the Committee to grant him a further extension and to recognize Moore as his lawyer. On January 5, 1989, Mason began a second Article 78 proceeding, seeking an order directing the Committee to cease its investigation and to disclose communications concerning the investigation between Abrams and the Committee's then chief counsel, Michael A. Gentile. On February 22, the Appellate Division ruled in both proceedings. The Court granted Mason 60 additional days to respond to the Committee, allowed Moore to appear for Mason upon filing a proper application for pro hac vice admission, and dismissed the second Article 78 proceeding. Leave to appeal to the Court of Appeals was denied.

Prior to the extended date for filing his response with the Committee, Mason filed the instant lawsuit in the District Court. The parties stipulated to defer Mason's response until disposition by the District Court. The federal court complaint asserted, among other things, that the action of the Attorney General in disclosing his allegations of unethical conduct by Mason and the Committee's "solicitation" and "adoption" of the Attorney General's "complaint" deprived Mason of his rights to due process of law and impaired his First Amendment right to freedom of speech.

Since Mason's claim for federal court intervention relies on developments concerning the resignation of the Committee's chief counsel, those developments must be elaborated. On January 23, 1989, Gentile resigned at the request of the Honorable Francis T. Murphy, Presiding Justice of the Appellate Division, First Department. On that date Justice Murphy released a report explaining why he had requested the resignation. The report mentioned deficiencies in Gentile's administration of various matters in his office, including the Mason investigation. On February 16, the Honorable Sol Wachtler, Chief Judge of the New York Court of Appeals, directed the First Department to make an inquiry concerning the Gentile resignation and "promptly do whatever is necessary to maintain the dignity, respect and integrity" of the Court and the Committee. N.Y. Law Journal, Feb. 16, 1989, at 1, col. 3. Justice Murphy appointed four justices of the Appellate Division, First Department, to conduct the inquiry. All twelve of the associate justices of the First Department participated in the questioning of witnesses during the inquiry. On April 28, the Appellate Division released a report, concurred in by all but one of its members. Among other things, the report concluded that no member of the Court had participated in the investigation of any disciplinary matter. Chief Judge Wachtler, on behalf of the Court of Appeals, issued a letter to the Appellate Division, expressing satisfaction that the objectives of the inquiry process had been met.

The District Court denied Mason's motion for a preliminary injunction and dismissed the complaint on abstention grounds. The Court heard oral argument but denied a request for an evidentiary hearing. A panel of this Court granted an expedited appeal and stayed the Committee's efforts to obtain further information from Mason. After receiving the parties' briefs and hearing oral argument, this panel vacated the stay.

Discussion

Appellant acknowledges the pertinence of Younger abstention to attorney disciplinary proceedings, see Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. at 432-35, 102 S.Ct. at 2521-22, but contends that his complaint sufficiently alleges "bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate," id. at 435, 102 S.Ct. at 2523. He contends that he lacks an effective opportunity to assert his constitutional claims because the Committee is biased and is "jurisdictionally incompetent" to adjudicate his allegations of official misconduct. He also contends that he has no opportunity for effective judicial review within the state court system.

Mason's allegations of bias do not set forth circumstances that warrant federal court intervention. See Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975). Contrary to his assertions, the Committee is not disabled from proceeding because it sought evidence of his possibly unethical conduct from the Attorney General nor because the Attorney General aired his allegations against Mason. Moreover, Mason mischaracterizes the situation in contending, as evidence of bias, that the Committee has "adopted" the Attorney General's "complaint." Thus far, the Committee has not filed any charges against Mason. See N.Y. Rules of Court Sec. 605.12. It is conducting an inquiry to determine whether to file charges. In doing so, the Committee is entitled to seek evidence that the Attorney General may have. The Committee does not disable itself from proceeding by requesting a response from Mason as to the matters raised by the Attorney General nor by alerting Mason to the general scope of the requested response through the device of sending him the allegations made by the Attorney General.

Nor is bias shown by the allegations concerning the resignation of Gentile, the role of Justice Murphy in such resignation, or any state inquiry into such matters. It is wholly speculative for Mason to conclude that the members of the Committee or its current staff have prejudged him, or are incapable of impartially deciding whether to initiate formal proceedings and, in that event, of conducting them fairly. Finally, no sufficient claim of bias is shown by the fact that the Committee has rejected Mason's claim of bias, nor by the state courts' refusal to halt the Committee's efforts to ascertain whether grounds exist for formal charges. Obviously state forums do not disable themselves from investigating and adjudicating matters simply by disagreeing with accusations made against them.

Mason's further point that the Committee is unable to adjudicate many of his allegations is partly irrelevant and partly mistaken. To the extent that he faults the Committee because it will not adjudicate his allegations of misconduct by other persons, his point is irrelevant to the propriety of the Committee's inquiry into the allegations against Mason. The Committee is not disabled from proceeding because it declines to make the Mason inquiry an occasion for assessing the lawfulness of others. To the extent that Mason has legitimate defenses to any charges that may be brought against him, he will have an opportunity to assert his defenses in appropriate New York forums. See Turco v. Monroe County Bar Ass'n, 554 F.2d 515, 519 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 95 (1977); Anonymous v. Association of the Bar, 515 F.2d 427, 432 (2d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Erdmann v. Stevens, 458 F.2d 1205, 1211-12 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972); Matter of Capoccia, 59 N.Y.2d 549, 553, 466 N.Y.S.2d 268, 269, 453 N.E.2d 497, 498 (1983); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 509, 393 N.Y.S.2d 961, 964, 362 N.E.2d 592, 595 (1977).

Mason's assertion of the futility of judicial review through the state court system has two components. His first point echoes his claim of bias by asserting that state court review is futile because he has thus far not prevailed in his effort to halt the Committee's inquiry. In fact, his recourse to the state courts has demonstrated that those courts are fully prepared to rule favorably on his meritorious assertions. Their refusal to halt the inquiry at its incipient stage provides no basis for believing that they will be reluctant to entertain any legitimate objections Mason may have in the event that disciplinary sanctions are improperly imposed.

Mason's second point is that state law does not permit judicial review of one possible step the Committee might take--the issuance of a letter of caution. See N.Y. Rules of Court Secs. 605.6(e)(3), 605.7, 605.8. He relies on Parker v. Commonwealth of Kentucky Board of Dentistry, 818 F.2d 504 (6th Cir.1987), for the proposition that Younger abstention is not warranted where the opportunity for judicial review "is contingent upon the type of disciplinary action taken." Id. at 509. Parker concerned an absence of judicial review of all the available disciplinary sanctions except the sanction of license revocation. By contrast, under New York's procedures, all actions characterized as disciplinary are subject to judicial review. A letter of caution "does not constitute discipline by the Committee." N.Y. Rules of Court Sec. 605.8(b)(2)(ii). Of course, a state may not employ labeling to insulate from judicial scrutiny adverse action that impairs constitutionally protected rights. If it should develop that a letter of caution is issued under circumstances where such action impairs Mason's federal rights, we are not foreclosing federal court scrutiny. But the possibility of such an eventuality is too speculative to warrant a relaxation of Younger abstention requirements.

In sum, Mason has alleged no circumstances that show that the Committee or the state courts are proceeding against him in bad faith or harassing him, nor has he alleged any other valid grounds for an exception to Younger abstention. The District Court was entirely correct in its conclusion that Mason's complaint did not require an
evidentiary hearing and that the complaint should be dismissed.

The judgment of the District Court is affirmed.

* 894 F.2d.

From Betsy: see also the Drier case

Labaton Suckarow Update

Here is an update on the Labaton project. I just want to make the point, again, how greedy these law firms are. They want all the rewards but none of the responsibilities for hiring attorneys directly. They get business from government entities and have licenses to do business in NY, but yet none of the laws that protect workers' rights are applicable because we happen to be attorneys. It is only in the USA among western countries that this would be allowed to happen because the idea of good corporate citizenship is anathema to these greedy bastards.


HAPPY YOM KIPPUR FROM LABATON

Labaton which hired a bunch of attorneys for its Countrywide project some months ago and paid them $32 flat per hour with absolutely no benefits announced that the firm will be closed for Yom Kippur and there will be no pay. How wonderful! I am all for respecting each others' religion, but I draw the line when it takes money out of my pocket. If you wish to take the day off, enjoy, but why should a company consider it okay to close down on a religious holiday, not a federal one, and screw their Countrywide "employees" out of a day's pay. Labaton, you suck. You are cheap.

One of the named plaintiffs in Countrywide is the NYS Comptroller, so you Labaton think it is fine to get business from a government entity, operate in New York City and then hire attorneys for a long term project while giving them no benefits whatsoever, and then to boot, impose a religious holiday on them. What the hell is wrong with this country? No wonder that it is so fucked up. It is one thing to get screwed by an agency, but you Labaton made us your employees. You want to pay us the minimum by cutting out the agency's take, and then you bill the client God knows what for our services, all the while providing no benefits in return. We can't even get paid overtime because of the bullshit professional exemption in NY. The cleaning people have more benefits and rights than we do.

Labaton if you had any decency you would pay us for Yom Kippur, if just to create goodwill, but of course you are too short sighted and cheap to do that. Instead you continue to operate your sweatshop, provide no benefits to your "employees," bilk the client for as much as you think you can get away with, and have a nasty bleached blonde police the caseroom in the hope of finding somebody eating a banana at his or her desk; I think that bleach has leaked into whatever little brain she has. Please deliver me from this hellhole.

Remember: Move and Then Move Again

In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy - a statement that did not mention any touching or physical act.

The three judge majority held that this constituted sufficient corroboration. The dissenting justices disagreed, reasoning that the statement only corroborated lesser crimes and not the crimes charged. One of the dissenting justices granted leave to appeal to the Court of Appeals, which decided the case this week.

Who was right? Hard to tell, since the

Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]).

People v Kolupa, __ NY3d __, 2009 NY Slip Op 06586 [September 22, 2009].

Would you want to be the attorney calling Mr. Kolupa (in a correctional facility) to explain this result? Or the trial attorney who caused this result by failing to make a proper motion? Or Mr. Kolupa?

Since failure to abide by the requirements of Hines is all too common a problem it is perhaps hopeful that in a concurring decision Judge Smith wrote that

Today's decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004] [R. S. Smith, J. concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.

More Elite Click Monkeys

In Chicago, only top tier, top 1/3rd of the class, former biglaw associates with 2+ years of litigation experience need apply (products liability associates preferred!). Unreal. Game over.

"Counsel On Call is currently interviewing attorneys with at least one year of solid electronic document review experience for a contract assignment in downtown Chicago. Must have worked as a litigation associate in a large law firm 2+ years. Experience with products liability litigation strongly preferred. Full time, requires a three month commitment. Top tier school and top 1/3 of class required. Please e-mail resume to julie.lehrman@counseloncall.com."

NYS Court of Appeals Rules That Gov. Patterson Can Appoint the Lieutenant Governor

This is what I think:

The New York State Court of Appeals is Playing Politics, Level 101.

The President comes to New York City (he is visiting New York City to speak at the United Nations) to tell our Courts and Congress what he wants for our State, and everyone quickly complies - with the goal of keeping the governor's seat in the control of the democratic party.

One more thought: where is the people's right to vote? Is it time for another tea party?

Betsy Combier

Gov. David A. Paterson appeared with Richard Ravitch on July 9 after naming him lieutenant governor. Since the state’s first Constitution was adopted in 1777, no New York governor had ever tried to fill a vacancy in the job of lieutenant governor.

September 22, 2009, 9:08 am
In 4-3 Vote, Court Says Paterson Can Appoint Lt. Governor
By Jeremy W. Peters AND Sewell Chan, NY TIMES
LINK

Nathaniel Brooks for The New York Times Gov. David A. Paterson appeared with Richard Ravitch on July 9 after naming him lieutenant governor. Since the state’s first Constitution was adopted in 1777, no New York governor had ever tried to fill a vacancy in the job of lieutenant governor.
Documents

The New York State Court of Appeals decision and dissent.

Updated, 4:22 p.m. | In a stunning reversal, New York State’s highest court on Tuesday upheld Gov. David A. Paterson’s authority to appoint a lieutenant governor.

Though the decision was divided — four judges agreed that Mr. Paterson exercised proper authority while three said he did not — it was unambiguous in its affirmation of the governor’s authority. The 4-to-3 decision resolved a longstanding constitutional question, and makes Richard Ravitch the first appointed lieutenant governor in New York State’s history.

Since the state’s first Constitution was adopted in 1777, no New York governor had ever tried to fill a vacancy in the job of lieutenant governor.

“The issue on this appeal is whether the governor of the state of New York has the authority to fill a vacancy in the office of lieutenant governor by appointment,” Chief Judge Jonathan Lippman wrote for the majority. “We now hold that he does.”

In a sharply worded dissent, Judge Eugene F. Pigott Jr. wrote that the decision was “contrary to the text of the New York Constitution and affords governors unprecedented power to appoint a successor.”

The ruling is certain to boost the political fortunes of the beleaguered governor, who was himself lieutenant governor before he replaced Gov. Eliot Spitzer in March 2008 after Mr. Spitzer was implicated in a scandal over his involvement in a prostitution ring.

Mr. Paterson is facing grave doubts from the highest ranks of the Democratic Party about his viability as a candidate for governor in 2010. In what amounted to a stinging embarrassment, word leaked out over the weekend that the White House had nudged Mr. Paterson to bow out of the race, fearing that he could not win. That would permit State Attorney General Andrew M. Cuomo to seek the party’s nomination for governor.

Mr. Paterson has vowed to stay in the race even as there were signs that some New York Democrats were backing away from him this week.

Asked about the court’s decision at a news conference in Upper Manhattan to announce new scientific research grants, Mr. Paterson, looking upbeat, chided those who had claimed the administration would never win the legal battle over Mr. Ravitch’s appointment and likened it to the conventional wisdom about his own political fate.

“You don’t give up,” Mr. Paterson said. “You don’t give up just because people tell you what they think is going to happen. You don’t give up because people tell you who’s running and who’s not before they ever announce to do it. You don’t give up because you’re unpopular when you feel you’ve made the right decisions.”

On a conference call with reporters on Tuesday afternoon, Mr. Ravitch said he was pleased with the court’s ruling.

“I can say very simply I always thought the legal theory of the governor’s lawyers was probably a wise one,” he said. “I hope very much in the ensuing months I’ll be able to be of help to the governor and the Legislature tackling the very deep and very dire problems the state faces.”

Senator Dean G. Skelos of Long Island, the Republican leader in the State Senate, who was the named plaintiff in the suit, said in a statement on Tuesday, “The court has given new power and authority to an unelected governor where no such power had existed under the State Constitution.”

He said Judge Pigott’s premise raised the troubling prospect that an unelected lieutenant governor could become governor and then appoint yet another unelected governor, without needing even confirmation by the State Senate. “The court’s decision to allow the state’s highest offices to be filled with no accountability whatsoever to the public or to their elected representatives in the Legislature, is dangerous to democracy,” Mr. Skelos said.

“One thing is clear — we must change the law,” he said. “We need to clarify the process of filling the office of lieutenant governor to ensure accountability to the people through election or, minimally, Senate confirmation.

Senator John L. Sampson of Brooklyn, the leader of the Democratic conference in the chamber, issued a statement congratulating Mr. Ravitch, saying that “today’s ruling will encourage all parties to end the political rancor and work together to meet the needs of all New Yorkers.”

Assemblyman Michael N. Gianaris, a Queens Democrat who had been among the first to call on Mr. Paterson to appoint a lieutenant governor, said of the ruling, “Most importantly, there is now a clear line of succession to the state’s highest office should the governor no longer be able to serve.”

Dick Dadey, the executive director of the government integrity group Citizens Union, which had called on Mr. Paterson to appoint a lieutenant governor at the height of the Senate crisis, said the opinion was significant because it settled once and for all a governor’s right to fill a vacancy in the office. “That was the major victory here: that the court agreed that while it is not initially evident, the law provided for a selection process for the lieutenant governor,” Mr. Dadey said.

State courts had ruled against the governor at every step in the case, Skelos v. Paterson, which was filed by Republicans in the State Senate and by a dissenting Senate Democrat, Pedro Espada Jr., who broke with his party earlier this year and staged a leadership fight that paralyzed the Senate for more than a month.

In a move that was widely seen as a political and constitutional gamble, Mr. Paterson announced on July 8 that he was appointing Mr. Ravitch, a veteran of city and state politics for more than four decades, as lieutenant governor. Under the Constitution, the lieutenant governor has the power to cast tie-breaking votes in some cases, and Mr. Paterson hoped the appointment would pressure the Senate into resolving its power struggle.

There is debate about whether the appointment indeed helped spur a resolution, which was brokered on July 9, Mr. Ravitch’s first day on the job. Democrats have since returned to power in the Senate, enticing Mr. Espada back into the party. The Senate is split narrowly, with 32 Democrats and 30 Republicans.

But even as the power structure stabilized in the Senate, Republicans waged on with their legal battle against the governor and Mr. Ravitch. The results made Mr. Ravitch essentially an on-again-off-again lieutenant governor after different courts blocked and then reinstated his appointment.

Republicans initially won a preliminary injunction on July 21 that blocked Mr. Ravitch from carrying out any of the duties of the office. A higher court later reinstated him as the case worked its way through the appeals process but limited his ability to perform any duties that would affect business in the Senate.

The ruling by the Court of Appeals resolves a thorny constitutional dispute that had left legal scholars divided.

The State Constitution does not expressly give the governor power to appoint a lieutenant governor.

At issue in the decision and the dissent were two provisions in state law, which could be read as conflicting. One provides that the governor “shall appoint” a person to fill a vacancy in positions for which there is no other provision for the fulfilling the vacancy. The other provides that the temporary president of the State Senate “shall perform all the duties of the lieutenant governor” if the position is vacant.

Judge Lippman wrote that the two provisions “are complementary rather than duplicative” and that the latter provision provides only for “stopgap coverage” of the lieutenant governor’s function and cannot “be understood to state that the vacancy may not be filled.”

The confusion over how to fill the vacancy has not always existed. Judge Lippman noted that it was only after a 1943 ruling by the Court of Appeals that Gov. Thomas E. Dewey — a Republican who was concerned that the law could mean that the governor and lieutenant governor might be from opposing parties — persuaded the Legislature to exempt the lieutenant governor from a law providing for vacancies in elective offices to be filled in the next annual election.

A gubernatorial appointment “is entirely consonant” with the purpose of legal changes since 1943, Judge Lippman wrote, while keeping the job vacant “risked a scenario of the sort that the Legislature at Governor Dewey’s behest sought to avoid” — one in which the governor and lieutenant governor could come from opposing parties.

Judge Lippman wrote that the ruling “does create the possibility that an unelected official will, for a time, occupy the state’s highest office,” but added that the ruling was based on a reading of the law, not the “abstract question” of whether it would be best to fill the vacancy by election, by appointment, or by appointment subject to legislative confirmation.

Until now, there had only been two vacancies in the lieutenant governor’s job since 1943: in 1973, when Lt. Gov. Malcolm Wilson succeeded Gov. Nelson A. Rockefeller, who resigned, and in 1985, when Lt. Gov. Alfred B. DelBello resigned. Both times, the job went unfilled.

“While it has been suggested that these vacancies were left unfilled because of some consensus as to the unavailability of the power of gubernatorial appointment, it is at least equally likely that they remained vacant for purely political reasons,” Judge Lippman wrote.

Judge Pigott’s dissent reached an entirely different conclusion. The relevant sections of state law, he said, “can only be reasonably interpreted to mean that the drafters of the Constitution intended that a vacancy in the office of lieutenant governor remain unfilled until the next general election, with the temporary president of the Senate performing the duties of the lieutenant governor in the interim.”

Judge Pigott said he joined the majority “in acknowledging the good faith and good intentions of all parties in this difficult and important case.” But he added that “neither the governor nor this court can amend the Constitution.”

Judge Lippman was joined in the majority by Judges Carmen Beauchamp Ciparick, Susan P. Read and Theodore T. Jones Jr. Judge Pigott’s dissent was joined by Judges Victoria A. Graffeo and Robert S. Smith.

All three dissenting judges were appointed to the high court by George E. Pataki, a Republican who was governor from 1995 to 2006. Only one judge in the majority, Judge Read, was appointed by Mr. Pataki.