Motion to Dismiss Filed in Kortlander Case - US Court of Federal Claims Issues Show Cause Order for Party's Failure to Appear

Little Bighorn River.  Courtesy NPS.

Federal lawyers recently filed a motion to dismiss Christopher Kortlander's multimillion dollar claim against the government, while Kortlander's attorney reportedly failed to appear for a January 26 court status conference.  The United States Court of Federal Claims therefore issued an order for a show cause hearing, stating: "The court reached defendant’s counsel and agency counsel, but was unable to reach plaintiffs' counsel at the appointed time, although the court attempted to reach plaintiffs' counsel twice. Therefore, on or before Monday, February 13, 2012, plaintiffs' counsel, in writing, in the electronic filing system, shall show cause why this case should not be dismissed for failure to prosecute and comply with the rules of this court ...."

Kortlander, owner of the Custer Battlefield Museum in Montana, was once under federal investigation after the Bureau of Land Management (BLM) received complaints that he was selling artifacts on eBay that were claimed to have been recovered from the Little Big Horn battlefield.  The battlefield is a protected national memorial dedicated to the U.S. Army's 7th Cavalry and the Sioux and Cheyenne.  It is the site of George Custer's famous "last stand."  The investigation of Kortlander led to the execution of search warrants by authorities in 2005 and 2008. But the prosecution in 2009 declined to prosecute.

Since then Kortlander has engaged in litigation, including filing an action against the government in the court of federal claims on September 19, 2011 for $188,500,000 in damages.  That action was filed days after a federal district court in Montana dismissed Kortlander's lawsuit against a BLM agent.

Attorneys for the United States filed a motion to dismiss Kortlander's tort, criminal, and constitutional law claims on January 17, 2012.  They contend in their pleading that Kortlander's case lacks jurisdiction, fails to state a claim upon which relief may be granted, fails to meet the statute of limitations, and fails to meet certain pleading standards.  Some of the arguments the government puts forward in the motion are the following (legal citations in the original have been omitted):

"Plaintiff [Kortlander] appears to allege that Federal agents violated his Fourth Amendment rights to be free from unreasonable searches and seizures.... He also alleges throughout his complaint that the search warrants justifying the 2005 and 2008 searches of his property in Garryowen [Montana] were not supported by probable cause.... However, the law is well established in the Court of Federal Claims that the 'Fourth Amendment provides no right to money damages for its breach.'"

"The Court also lacks jurisdiction over plaintiff's allegations that Federal agents violated his Fifth Amendment due process rights, because the Due Process Clause is not a 'money-mandating provision.'"

"The tort claims of slander and defamation fall outside the jurisdiction of the Court."

"Any effort by plaintiff [Kortlander] to allege a claim of tortious interference with business relationships by the Federal agents does not fall within the Court’s jurisdiction, for the same reasons."

"Further, any efforts by plaintiff to allege tortious invasion of privacy, or tortious harassment and intimidation by another person, fall outside the Court’s jurisdiction."

"Mr. Kortlander has failed to state any claims upon which relief may be granted. The majority of his claims are barred by the six-year statute of limitations."


CONTACT: www.culturalheritagelawyer.com

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

AAACommentsBy Joe Calderone Tuesday, Apr 30 2002

...continued from page 1

"Why should I have any less rights than anyone else to buy the house just 'cause I work in the courts?" said Randall, who acknowledged the sale might "look funny," but said it was "on the up and up."

Kilfoyle, however, said he couldn't remember if Randall came to him seeking permission. He said he did recall Crowley's complaints, which he said he reported to Judge Michael Pesce, the chief administrative judge in Brooklyn at the time. "My initial reaction was to report it to my superior," Kilfoyle said.

What I did was not wrong," Randall said. "In terms of appearance, on face value, I could understand where you'd have some concern. But it was done on the up and up to help the woman. She wanted to stay in her home. She didn't want to go to a nursing home. This way she was able to stay and she was happy. I felt good about it. She was able to live out her last days the way she wanted to."

Randall denied that he got any special deal, although he said one reason he was attracted to the house was because of the price." 

I was single [at the time]. I needed something to help me with taxes. I'm looking for a house and the price wasn't unreasonable and it was a chance to help someone out.

"The place was no bargain. It needed a lot of work," he said.

After the purchase, Randall said he invested between $20,000 and $30,000 in new windows and other repairs.

David Bookstaver, a spokesman for the Office of Court Administration, which oversees the courts, defended the deal, an unusual stance given recent moves by Chief Judge Judith Kayeand her number two, Chief Administrative Judge Jonathan Lippman, to at least give the appearance of breaking up the insider politics pervading business in Brooklyn civil court. It was Kaye and Lippman who, in the wake of Judge Barron's arrest, eased Pesce out of his post as administrative judge in favor of Judge Ann Pfau, an aide to Lippman who is seen by many Court Street lawyers as nothing less than an invading force whose mission is to tighten OCA's grip on the Brooklyn courthouse.

Bookstaver said the unadvertised sale of Perry's home to Scholnick's clerk did not trouble the powers that be within OCA.

"It was brought to the attention of counsel's office, and an opinion was given that there was nothing untoward or unethical about the transaction. It was not done in a vacuum. The final outcome did this woman a tremendous favor," Bookstaver said.

Terrelonge, the guardian who pushed for the sale, went on to serve as president of the Brooklyn Bar Association before dying this year after an illness. The bar association helps screen those seeking election to the bench, and the sometimes cozy relationships between lawyers active in the bar and judges they appear before has been sharply criticized.

Experts question why Terrelonge and Scholnick didn't push for a competitive sale of the home or devise another arrangement, short of a sale, that would have allowed Perry to draw on the equity in her home without having to give up ownership. Laws governing the disposal of property owned by incompetents require that the property be advertised for four successive weeks by a notice of sale "posted conspicuously on the premises" and by the publication of a notice of sale advertisement.

But in court papers signed by Judge Scholnick, Terrelonge argued successfully that those requirements be waived. Perry's brownstone was not advertised out of a fear "that posting and publication would be an open invitation for vandalism to the property and could bring about a danger to the occupants of the premises," Terrelonge stated.

Legal experts who advocate for the elderly said judges have a responsibility to look out for the needs of incompetents and avoid even the appearance of impropriety. "The bottom line is the interests of the incapacitated person have to be protected," said Toby Golick, director of Cardozo Law School's Bet Tzedek Legal Services.

Golick said it would be difficult to justify not advertising Perry's property on the open market. "It might be appropriate not to put up a for sale sign, but that doesn't mean there shouldn't be an effort to get the best price for a property by, for example, using a real estate agent or otherwise advertising."

One Brooklyn lawyer who specializes in elder law said the deal "smells. At the very least he [the judge] should have recused himself. Let another judge sign the order."

The lawyer also questioned why the house had to be sold at all. "Why sell her house? You could get a reverse mortgage."

In an appearance before a different Brooklyn Supreme Court judge, Sebastian Leone, who approved the final terms of the sale, Perry eventually agreed to the sale of her home. But she pleaded with the lawyers to not take advantage of her.

"I consent to it, but just give me someone to treat me good and don't take all the money from me. Let me live happy till I die."

---

Additional reporting: Ed Barrera

Queens, NY - Judge of Mazoltuv Borukhova Case Steps Down from Other Custody Battle

LINK

Queens, NY - A judge has decided to back out of a wrenching custody battle involving a 10-year-old boy whose TV commentator mom accused the judge of putting suicidal thoughts in the boy’s head.

Queens Supreme Court Justice Sidney Strauss announced Friday that he will hand off the case involving Fordham University Law professor Annemarie McAvoy to another judge.

Strauss didn’t address the nasty allegations lobbed by McAvoy, which caused the case to be moved to a Brooklyn judge for an emergency hearing two weeks ago.

“I think Judge Strauss has acted in a very wise way throughout a very difficult process,” said Justice Jeremy Weinstein, the administrative judge for the civil division of Queens Supreme Court. “He wants the case to be done. This matter has dragged on for many months, and that does nobody any good.”

Weinstein will pick a new judge Monday.

McAvoy claims that after Strauss refused to change custody in September, the youngster talked about killing himself or his father.

“I guess I’m the one who created the suicidal ideation, then,” Strauss said. “I didn’t tell him what he wanted to hear.”

The same judge made another controversial custody switch in 2007, placing a toddler with her dad against the recommendations of all involved.

The girl's distraught mother, Mazoltuv Borukhova, then had the father killed. The custody change was presented as her motive at her murder trial.

State Department Grants Seizure Immunity to Mexican Artifacts

The State Department’s Bureau of Educational and Cultural Affairs last week granted immunity from judicial seizure to artifacts on loan from Mexico.  The pieces will be part of a 2012 exhibition called "Children of the Plumed Serpent: The Legacy of Quetzalcoatl in Ancient Mexico," which will take place at the Los Angeles County Museum of Art in California and at the Dallas Museum of Art in Texas.

Under the federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), foreign lenders are encouraged by Congress to lend cultural objects to museums without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

Museums importing objects for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

Xochicalco temple of the plumed serpent. Photo: Giovani V; CC.

CONTACT: www.culturalheritagelawyer.com

Court Orders Odyssey Marine to Return Black Swan Treasure to Spain

A Spanish galleon.

The U.S. Eleventh Circuit Court of Appeals has denied Odyssey Marine’s motion to stay a decision ordering the commercial salvor to return coins and objects to Spain.  The so-called treasures of the "Black Swan" (the Nuestra Senora de las Mercedes) were taken from the sunken 19^th century Spanish galleon, discovered by Odyssey in 2007 “lying at a depth of approximately 1100 meters, beyond the territorial waters or contiguous zone of any sovereign nation approximately 100 miles west of the Straits of Gibraltar,” according to court records.

The case has persisted since April 9, 2007.  That is when Odyssey Marine filed a complaint in federal district court in Tampa, Florida under admiralty and maritime law (known as an admiralty in rem action).  The salvor argued that it should either own the shipwrecked vessel under the law of finds (a type of “finders keepers” claim) or it should be entitled to “a liberal salvage award” from the vessel under the law of salvage.  Odyssey lost the case, and the case now captioned as Odyssey Marine Exploration v. Kingdom of Spain et al. continues.

Last September, the federal circuit court of appeals upheld the lower district court’s decision that ordered Odyssey “to release the recovered res [i.e. the shipwreck materials] to the custody of Spain.”  Odyssey hoped to stay this decision as it appealed the case to the U.S. Supreme Court.  The company argued in its December 2, 2011 petition to the circuit court that once it delivered materials to Spain the objects would not be returned to Odyssey if the salvor ultimately won the case in the highest court in the land.  That is because it is "Spain's position that it is not subject to the jurisdiction of the U.S. Courts ....," according to the motion.  Odyssey also cited its belief that there are seven legal errors that remain to be challenged in the case.  The appellate court was unpersuaded, writing by hand the word “denied” on its final order issued Tuesday.

At stake for Odyssey is a haul reportedly worth $500 million.  For Spain, “[t]his sentence gives Spaniards back what was already theirs,” according to culture minister José Ignacio Wert who was quoted in The Daily Mail.

Hat tip to Gary Nurkin for forwarding The Daily Mail story.

CONTACT: www.culturalheritagelawyer.com

U.S. Appeals Court: "Pay To Play" Rules Do Not Violate Free Speech Rights

Challenge to NY campaign finance laws fails: US appeals court

12/21/2011COMMENTS (0)

NEW YORK, Dec 21 (Reuters) - A U.S. appeals court on Wednesday tossed out a challenge to New York City anti-corruption campaign finance laws, finding the so-called "pay to play" rules do not violate free speech rights.

In an opinion affirming a 2009 lower court ruling, the 2nd U.S. Circuit Court of Appeals in New York said city rules prohibiting corporate contributions to political campaigns, and requiring candidates to disclose contributions from people and groups that do business with the city, were appropriate given legitimate concerns about corruption.

"Contributions to candidates for city office from persons with a particularly direct financial interest in these officials' policy decisions pose a heightened risk of actual and apparent corruption, and merit heightened government regulations," the opinion by judges Debra Livingston, Guido Calabresi and Paul Crotty said.

The lawsuit, brought by Republican politician Tom Ognibene and others, sought to use the landmark 2010 U.S. Supreme Court decision Citizens United v. Federal Election Commission to attack the New York City laws.

In Citizens United, the Supreme Court found that the government cannot ban political spending by corporations in elections. The 2nd Circuit judges said that ruling only applies to independent corporate expenditures, and not to contributions limits such as those enacted in New York.

"There is no doubt that the threat of corruption or its appearance is heightened when contributors have business dealings with the city," the court said. "Accordingly, it is reasonable and appropriate to further limit their contributions."

A lawyer for Ognibene did not immediately return a call seeking comment.

In a separate concurring opinion, Judge Calabresi said he agreed with the majority view, but criticized the Supreme Court "Citizens United" decision. By preventing governments from regulating contributions in an effort to protect the free speech of donors, the decision had the effect of prohibiting them from "leveling the playing field," Calabresi said.

"In much the same way that anti-noise ordinances help to prevent megaphone users from downing out all others in the public square, contribution limits can serve to prevent their wealthiest donors from rendering all other donors irrelevant --from, in effect, silencing them."

(Reporting by Basil Katz)

Ithaca Lawyer NYS Teacher Certification and Marijuana Charges

As a criminal defense attorney I really believe that my job is all about protection. The problem is that most people (me included) can't protect against unseen or unknown enemies. Studying the law (the statutes) gives you a keen insight into anticipating issues. Criminal or even non-criminal charges involving drugs, marijuana, and controlled substances are a powder keg (a ticking time bomb) to those that have professional licenses and/or certifications. In this blog I really want to focus on New York teachers and their certifications. I'm straight from Brooklyn so NYS is near and dear to my heart. I recognize that some of the New York rules, laws, and statutes can be antiquated to many people.

In NYS any violation (of law) is professional misconduct for a professional license holder. One overlooked profession (in more ways than one) are teachers. They must have teaching certifications to teach. If they have any misconduct involving specific offenses they face loss of this certification. Those seeking licensure (certification) also must deal with any of their past convictions. Remember the focus of this blog is on the administrative issues not the criminal ones even though they integrate with one another. Administrative sanctions have a much lower standard (level) of proof. It is just a bit higher than the civil standard of preponderance of the evidence. This is also referred to as a little more likely than not that something is or isn't.
Some have referred to this as the substantial evidence standard. It is a far cry from proof beyond a reasonable doubt used in criminal matters. A license is merely a permission and does not rise to the standard of a protected right. You have NO right to teach or do any other profession.

How Many Professional (working) People Smoke Pot?

I don't know the answer to that question but I can tell you alot. In the last 10 years I have been offered more pot by more adults at social gatherings than you may imagine. My pot days are behind me but I understand the desire of people to chill out whether with a drink, a smoke, or a relaxing substance. Drugs have been around for thousands of years, they are not going away anytime soon, and used responsibly they can be life savers and life enhancers.

So What's the Problem?

What many people don't know is that a seemingly innocuous pot charge (even at the violation level) can lead to severe discipline to a teacher's livelihood. A mere marijuana violation (penal law section 221) and subsequent conviction for smoking, and/or possessing pot will lead to a rebuttable presumption that you are unfit (lack moral character) to teach.

This is under NYSED Part 83 Determination of Good Moral Character. If you are convicted of any of the specifically enumerated offenses (a marijuana violation is one of them) then you are presumed immoral and unfit. This rebuttable presumption is one in which you are presumed to be morally guilty.


Section 83.4. Hearing.

(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. In the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character:

(1) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or

(2) any crime involving physical or sexual abuse of a minor or student; or

(3) any crime committed either on school property or while in the performance of teaching duties.

Then it is your job to prove your fitness and morality to the board. If you are applying for a license there is NO rebuttable presumption. The statute specifically reserves that for those who already have certification and then commit a crime subsequent to that certification.

The potential penalties are highlighted below:

Section 83.6. Penalties.

(a) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character prior to November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the following penalties: denial of an application for certification, or suspension of a certificate, or revocation of a certificate.

(b) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character on or after November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the penalty of the denial of an application for certification (for new applicants); and the hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose one of the following alternative penalties upon certified (for those with certifications) individuals:

(1) revocation of a certificate; or

(2) suspension of a certificate:

(i) wholly for a fixed period of time;

(ii) partially, until the certificate holder successfully completes a course of retraining in the area to which the suspension applies; or

(iii) wholly, until the certificate holder successfully completes a course of therapy or treatment;

(3) limitation of the scope of a teaching certificate through revocation of an extension to teach additional subjects or grades;

(4) a fine not to exceed $5,000; or

(5) a requirement that the certified individual pursue a course of continuing education or training.

What Can One Do?


Prepare to stop it ALL at the root cause: the criminal and/or drug and/or pot conviction level.


First, if facing any criminal charges and/or violations of law consult with a knowledgeable attorney.
Second, you should always seek to obtain a NON-criminal disposition to your charges.
Third, if you cannot get a NON-criminal disposition then seek a NON-drug related disposition to the charges.

Level two: Be proactive, Get an Eval, and folow through.

If there is no way to prevent a conviction for the criminal and/or drug charge then get a drug/alcohol assessment/evaluation by a NYS certified evaluator ASAP. Follow through on the appropriate recommendations. Go for a 2nd opinion if you think they are off base. They are like any other health care providers, some may think everyone is messed up and needs extensive treatment. See the OASAS website for certified NYS evaluators. The site below is extensive but you must do your research, not all evaluators are equal. Some charge an arm and a leg for a simple evaluation, some may see as an opportunity to get a patient, be careful. Some may say the same things of me but hey I warned you.

http://www.oasas.ny.gov/

If You Have a Hearing Prepare for It

Go into the board fully armed to prove your value, your worth, your good deeds, your history, and any proactive steps you have taken. Do not allow anyone to take something you have worked so hard to obtain without a fight. Licenses are precious, they are more than just pieces of paper, they allow people to serve in a great many capacities, and they need to be valued. Do you need a lawyer? That is a million dollar question. Actually, if you have a lawyer at the lower level (legal defense) you may not ever get to a license hearing. Every case and situation is different and unique. Always best to consult with counsel (what did you think I would say?, I'm a lawyer).

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850
607-229-5184

http://www.ithacadwi.com