Judith S. Kaye, as Chief Judge of the State of New York, has filed a lawsuit against Sheldon Silver and The New York State Assembly, Joseph L. Bruno and the New York State Senate, Governor David Paterson, and the entire State of New York, alleging that the executive and legislative branches of our government have violated the New York State Constitution's "Judicial Compensation Clause" by failing to provide the Judiciary with adequate compensation.

According to Judge Kaye's complaint (dated today, April 10, 2008), Judges haven't received a pay increase in about a decade (January 1999), while other public employees have earned raises of about 24 percent over that same time period. That, according to the complaint, has had a "disciminatory impact on the Judiciary, which cannot defend itself."

We understand the case was filed in New York County  (based on Judge Kaye's residence address) and has been assigned to Supreme Court Justice Justice Edward H. Lehner.

To download a copy of the Summons and Complaint, together with a Memorandum of Law In Support of Plaintiff's Application for a Prompt Trial, please use this link: Kaye v. Silver

Posted by Lucas A. Ferrara, Esq. at 7:50 PM | Permalink | TrackBacks (0) | Comments (20)

In Adelphi Assoc., LLC v. Gardner, since Gardner was incapable of defending himself within the context of a nonpayment case, a guardian ad litem (GAL) was appointed to represent the tenant's interests.

Without ever meeting or consulting with the tenant, the GAL agreed to convert the nonpayment to a holdover proceeding, and consented to the tenant’s eviction.

When the tenant later secured counsel and asked the Kings County Civil Court to vacate the agreement and be restored possession, that forum denied the request.

On appeal, the Appellate Term, Second Department, sided with the tenant and vacated the agreement since it had been “inadvisedly entered into.”

But the restoration request was denied with leave to renew, as the apartment's current occupant had not been joined to the case. Should that occur, the AT2 suggested the use of a “balancing test” to determine who would get to keep the unit -- after weighing such factors as the former tenant's ability to pay his debts and future rent, together with the prejudice or injury the existing occupant would suffer.

Wouldn't want to be the judge that has to make that decision.

To download a copy of the Appellate Term’s decision, please use this link: Adelphi Assoc., LLC v. Gardner

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (11)

Here's an AP story forwarded to us by our friend, Jerry Skurnick, a partner of PRIME NEW YORK:

MILWAUKEE—A judge is asking a lawyer to tie one on.

Circuit Judge William Sosnay held up court for about three hours Tuesday after a prosecutor showed up wearing a red ascot to court despite a rule requiring lawyers to wear neckties.

Sosnay decided that Warren Zier's ascot -- a silk scarf-like loop of cloth worn at the base of the neck -- "borders on contemptuous."

"He has told me that if we're before a jury, he would appear with a tie," the judge said. "Well, why? I think we can draw an obvious implication from that."

Zier said he plans to continue with his practice of rotating his neck wear from a long tie to a bow tie to an ascot.

Zier said he'll just have to wait to find out what happens with the threat of a contempt citation. "I guess we'll deal with that if it gets to that point," Zier said.

Tying up three hours of the court's time, over a "dress code" violation of such an inconsequential sort, is an inexcusable waste of judicial resources and tax dollars.

We're of the opinion that -- for engaging in this type of nonsense -- Sosnay should be "disrobed."

To view the piece, as it appeared on the boston.com website, please use this link: ASCOTS AIN'T TIES

Posted by Lucas A. Ferrara, Esq. at 4:30 PM | Permalink | TrackBacks (0) | Comments (4)

Judge Robert M. Restaino, City Court Judge in Niagara Falls, New York, jailed 46 people after unsuccessfully trying to determine whose cell phone had disrupted the court proceedings.

When repeated threats, and an attempt by security officers to locate the culprit, proved fruitless, the judge ordered that the entire courtroom be taken into custody and set bail at $1500. The detainees were then taken to the Niagara City jail, searched, and placed into cells. Fourteen individuals, who were unable to post bail, were shackled and transported to county jail. Only after word of the debacle reached the media did Judge Restaino order the group’s release.

While the Second Circuit Court of Appeals, in Glavin v. Restaino, concluded that Restaino could not be sued since he did not act "in clear absence of jurisdiction when he punished [the group] for the courtroom disturbances," it noted that the Judge’s conduct was “entirely inappropriate” and was “gratified” to learn that New York's disciplinary authorities were conducting an inquiry into the matter.

Sure enough, on November 13, 2007, the New York State Commission on Judicial Conduct found that Restaino had acted like a “petty tyrant,” and had engaged in “an egregious and unprecedented abuse of judicial power," which warranted a recommendation that he be removed from office.

Although Restaino has 30 days to appeal the Commission’s decision, should he opt to challenge the determination, his prospects don’t look too rosy.

Will this “tyrant” be sent to the gallows? (Until there’s an ultimate resolution of this case, we are going to restraino from commenting further.)

To download a copy of the Commission’s decision, please use this link: In re Robert M. Restaino

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)

What's the easiest way to lose a $2.3 million verdict?

Have an appellate court find that the trial judge committed "egregious errors" during the course of the case and that an attorney's "misconduct" prejudiced the matter's outcome.    

In Tehozol v. Anand Realty Corp., Tehozol was attacked while retrieving his mail in his building's lobby. The central issue in dispute during the course of the jury trial was whether the front-door locks had been operational at the time of the attack and whether or not the incident had been caused by an intruder.

While the plaintiff and four other tenants were allowed to testify, when it came to the defendant-landlord's case, the Bronx County Supreme Court inexplicably limited the number of witnesses that could testify on the owner's behalf. According to the Appellate Division, First Department, that preclusion was "prejudicial." 

But the irregularities did not end there.

The AD1 was also displeased with the "improper, unnecessary and unsupported insinuations" made by the plaintiff's attorney that one of the landlord's corporate officers had "intimidated" a witness, that "irrelevant and highly inflammatory evidence of criminal conduct" (which had occurred after the plaintiff's attack) was presented to the jury, and, "improper and prejudicial remarks" worked to adversely impact the outcome (to the defendant's detriment). 

As a result, the AD1 wiped out the plaintiff's multi-million dollar verdict and a new trial was ordered.

DUCK!

For a copy of the Appellate Division's decision, please use this link: Tehozol v. Anand Realty Corp.

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)

It seems like quite a few people were "asleep at the wheel" up in Tompkin's County, New York. And, as a result, an administrative judge, William F. Burin, got himself formally reprimanded -- or "censured" -- by the New York State Commission on Judicial Conduct for failing to ensure his staff's compliance with governing law.

Apparently, over the course of several years, filing fees and other charges paid to the Lansing Town Court weren't being deposited in a "timely" manner. (Let's be clear. No one absconded with the funds. They were simply being left in a "bank bag" in one of the court's offices, until someone finally got to processing the proceeds.)

According to state rules, funds received by a Justice Court must be deposited within 72 hours of receipt. Yet, from January 2004 to May 2005, $153,403.21 in court funds were processed up to five months after the fact.

Some $99,078.37 of those funds were also not reported or forwarded to the New York State Comptroller within ten days after collection, as further required by yet another state law.

It was not until the State Comptroller ordered that Burin's pay be stopped that the judge finally took action to ensure that the reports were timely submitted (and payments made) to the state.

Having failed to property supervise or train his staff, the New York State Commission on Judicial Conduct concluded that the judge violated a fundamental duty. Here's what the State Commission had to say about it:

A town or village justice is personally responsible for monies received by the court .... Such monies must be deposited within 72 hours of receipt and remitted to the State Comptroller by the tenth day of the month following collection .... Although these responsibilities may be delegated, a judge is required to exercise supervisory vigilance to ensure the proper performance of these important functions.

So, let me see if we've gotten this right. Here we had an administrative judge that shirked his duties and refused to comply with the law (until his salary was withheld), and all he gets is a slap on the wrist?

 

 

That strikes us as a gift.

(Does anyone know who's balancing the checkbook in the Burin household?)

For a copy of the Commission's decision, please use this link: In re William F. Burin

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)

No one is above the law ... except judges, apparently.

Moshe Rosenstein alleged that he was damaged when a Judge of the New York City Housing Court wrongfully entered a default judgment against him. (The Judge supposedly changed the  date of trial without notifying the tenant.)

Rosenstein's lawsuit, which claimed wrongdoing on the part of the judge, the administrative judges, court officers and clerks (with whom Rosenstein had interacted and/or were purportedly involved in the surreptitious rescheduling of the case and/or who refused to investigate the matter), was dismissed by a Court of Claims judge.

In its affirmance of that outcome, the Appellate Division, First Department, noted as follows:

Since the Housing Court judge who allegedly changed the date of claimant's trial without notifying claimant in order to grant claimant's landlord a default judgment had subject matter jurisdiction over claimant's landlord/tenant matter, any action taken by that judge in connection with that matter, even if malicious or corrupt, is cloaked with absolute immunity .... So too is the alleged wrongdoing of administrative judges, court officers and clerks in transferring and rescheduling the matter .... For the same reason, defendant cannot prevail on his claim administrators committed wrongdoing in not investigating his complaints about the allegedly corrupt judge and in not disciplining him ....

We can accept that the appellate court found no merit to the allegations made in this particular case.

But here is the part we don't get:

Why afford immunity to someone who has willingly engaged in an illegality? Shouldn't a miscreant -- which would include a corrupt judge -- be subject to personal liability for his/her misconduct?

Once the public trust has been violated, and a judge or court employee has been found guilty of criminal behavior, we see no reason to afford that individual unbridled immunity protections. (That strikes us as nonsensical.)

People should suffer the consequences of their misdeeds, no?

For a copy of the Appellate Division's decision, please use the following link: Rosenstein v. State of New York

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Losing one's temper and composure can get a judge defrocked according to a recent decision by the New York State Commission on Judicial Conduct.

The rules governing judicial conduct require judges to be an "exemplar of dignity and decorum and to preside over disputes in a lawful, orderly manner." Those standards were not met by William A. Carter, a Judge of the Albany County City Court, who on several occasions reportedly "crossed the line" of acceptable behavioral norms.

In one instance, the Judge became so agitated with a criminal defendant that he "angrily left the bench, threw off his glasses and judicial robes, and proceeded rapidly towards the defendant." A witness reported that the Judge then asked the defendant, "You want a piece of me?" While officers removed the defendant from the courtroom, the Judge reportedly needed to be restrained or "blocked" from pursuing the defendant. This loss of self control was perceived by the Commission as "inimical to the role of a judge."

Several months later, another defendant made a crude gesture to a police officer and when the officer asked what the court what it intended to do about the behavior, the judge reportedly responded, "If you are so upset about it, why don't you just thump the shit out of him outside the courthouse, because I am not going to do anything about it."

The Commission viewed the judge's remark as "outrageous" since it advocated the "use of violence as an acceptable means of retaliating against unruly defendants." Although the Judge asserted that he was attempting to assuage the officer with "cop speak," it was the Commission's view that such a statement had "no place in a judicial forum where emotions should be tempered and issues resolved in a peaceful, orderly manner."

Since the Judge's lapses were "antithetical to a judge's obligation to be 'patient, dignified and courteous' to litigants and others and to observe and maintain appropriate standards of decorum," the Commission recommended that he be censured for his misconduct.

Interestingly, the Commission's decision reveals that the Judge narrowly escaped being removed from office. And, in addition, the Commission suggests that had it been empowered to suspend a judge without pay, it would have done so in this particular instance. Here's how the Commission's decision phrased it:

We have previously urged the legislature to consider a constitutional amendment providing suspension from office without pay as an alternative sanction available to the Commission ... We believe that such a sanction is appropriate for cases in which the judge's conduct is truly egregious but does not irretrievably damage the judge's effectiveness on the bench. Were suspension available to us, we would impose it in this case to reflect the severity with which we view respondent's conduct. Absent that alternative, we have concluded that a censure should be imposed.

This disposition should not be read as suggesting that conduct similar to respondent's could never rise to a level warranting removal. As the Court of Appeals recently stated, "Judicial conduct cases are, by their very nature, sui generis" ... Indeed, such decisions "are essentially institutional and collective judgment calls based on assessment of their individual facts" ... along with mitigating or aggravating factors.

This decision places respondent on notice that any future ethical lapses will be viewed with appropriate severity.

One can only hope Judge Carter will heed this warning and will keep his machismo in check.

For a copy of the New York State Commission on Judicial Conduct's decision in the Matter of Carter, please click on the following link:
http://www.scjc.state.ny.us/Determinations/C/carter.htm

For a copy of the Judicial Commission's press release (dated October 2, 2006), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/oct__to_dec__2006.htm

Posted by Jonathan H. Newman, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Judge Gerald Lebovits has a monthly column called "The Legal Writer" featured in the Journal, a publication of the New York State Bar Association.

In this month's issue (Vol. 79, No. 1), Judge Lebovits addresses "Ethical Judicial Writing" and examines a bankruptcy court decision we've scrutinized in a prior blog post. [See, "This Is Incomprehensible," by clicking on the following link: http://www.nyrealestatelawblog.com/2006/11/this_is_incomprehensible_1.html#000375]

Interestingly, Judge Lebovits echoed many of the sentiments expressed in our piece and we thought you might find his analysis of that twisted decision of interest.  Here are his observations:

One bankruptcy judge from Texas used humor to deny a defendant's motion as incomprehensible.  The judge compared the defendant and his motion "to Adam Sandler's title character in the movie 'Billy Madison,' after Billy Madison had responded to a question with answer that sounded superficially reasonable lacked any substance." Billy Madison, like the defendant in this case, was berated for his stupidity:

[W]hat you've just said is one of the most insanely idiotic things I've ever heard.  At no point in your rambling, incoherent response was there anything that could be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.

Judges are different from everyone else in a courtroom.  They should decipher rambling, irrational, incoherent thoughts.  They should unearth the buried argument, comprehend the incomprehensible, clarify the opaque.  They shouldn't give up easily on a litigant who sounds like Billy Madison.  Judges who act disrespectfully to lawyers and litigants will in turn be treated disrespectfully.

Kudos to Judge Lebovits for getting it right!  (Unfortunately, a few too many of his colleagues neither strive to achieve these fundamental goals nor accord litigants--or their counsel--the "respect" and "dignity" they rightfully deserve.)

To download a copy of Judge Lebovits's article, please click on the following link: http://www.nyrealestatelawblog.com/blog~legal%20writer.pdf

Posted by Lucas A. Ferrara, Esq. at 8:26 AM | Permalink | TrackBacks (0) | Comments (0)

A very unusual press release crossed my desk the other day.

The New York State Chapter of the National Organization for Women (NOW-NYS) is accusing New York County Supreme Court Justice Joan Lobis and her law secretary, Marilyn Sugarman, of "punitive and biased treatment of women in their courtroom."

Justice Lobis and Ms. Sugarman are "allegedly showing bias against, and inflicting punitive decisions upon, women who are merely trying to protect their children."  And, according to NOW-NYS, the Judge and her law secretary, "continue to pour salt on the wound of women who are seeking justice."

The release continues with a series of statements from an unidentified "court observer," and two disgruntled litigants, one of whom is identified as an "anonymous victim."  [The full text of the press release and a link to the NOW-NYS website can be found below.]

We submit that these unsubstantiated reports of "judicial bias" did not justify the dissemination of a vitriolic and caustic press release.  In fact, we believe the manner in which NOW-NYS aired its dissatisfaction with the judge's rulings is grossly unfair, patently irresponsible, and downright reckless.

Under current cannons of ethics, judges are not permitted to respond to public attacks of their decisions, thus foreclosing the ability of impartial analysts  to arrive at an objective assessment of a dispute's merits (or lack thereof).  The inability to speak openly, about  pending cases or to address inaccurate characterizations of their decisions, frequently makes judges "easy marks."  And, often times, this silence is misconstrued by many non-lawyers to be akin to an admission of guilt or acquiescence to the charges.

A cornerstone of our country's democracy is "judicial independence."  A judge's function--to decide cases fairly and impartially--should not be clouded by concerns of retaliation by political leaders, court administrators or members of the "fourth estate."  Jurists must not be blinded by adverse publicity nor fear reprisals should their decisions prove unpopular or contrary to a particular litigant's wishes or organization's platform.

Take an Appeal!

In the twenty-plus years I've been practicing law, I have yet to meet a litigant that was pleased with having lost a case.  And in those instances when the result was contrary to governing statute or precedent, we have appealed that jurist's determination to a higher court. 

File a Complaint with the Commission on Judicial Conduct

Formal mechanisms are also in place to investigate allegations of  judicial misconduct.  In New York, for example, the State Commission on Judicial Conduct reviews such complaints and may admonish, censure or remove from office any judge found to have engaged in unethical or illegal behavior. As its mandate provides:

The Commission's objective is to enforce the obligation of judges to observe high standards of conduct while safeguarding their right to decide cases independently. The Commission does not act as an appellate court. It does not review judicial decisions or alleged errors of law, nor does it issue advisory opinions, give legal advice or represent litigants. When appropriate, it refers complaints to other agencies. By offering a forum for citizens with conduct-related complaints, and by disciplining those judges who transgress ethical constraints, the Commission seeks to insure compliance with established standards of ethical judicial behavior, thereby promoting public confidence in the integrity and honor of the judiciary.

In view of these available safeguards, we do not subscribe to the practice of litigating a dispute's merits by press release and believe that this blatant attempt to strong-arm a highly respected jurist and law secretary to submit to an organization's particular agenda should only meet with rebuke and reproach.

For a copy of the NOW-NYS press release, dated December 6, 2006, please click on the following link: http://www.nownys.org/pr/pr_120606.html

To be directed to the New York State Commission on Judicial Conduct's website, please click on the following link: http://www.scjc.state.ny.us/

Continue reading "N.O.W., SHAME ON YOU!" »

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (1)

Call us old fashioned, but we believe there are some lines that should never be crossed.

Stand-up comics shouldn't act like "judges," and vice versa.

There's also a time and place for everything. In a social setting or at a public forum, there's nothing inappropriate about cracking a tasteful joke or engaging in harmless banter. But, in our opinion, such exchanges don't belong in a written opinion or order. That kind of of cavalier behavior just doesn't sit right with us. In our view, attempts at comedy within judicial opinions butress the impression that the court is not responding to the litigants' concerns in a manner that can be considered fair and impartial.

In February 2006, the Honorable Leif M. Clark, a United States Bankruptcy Court Judge of the Western District of Texas, San Antonio Division, denied a motion made by the debtor (within the context of an adversary proceeding) in a pretty unique way. Here's how the decision reads:

ORDER DENYING MOTION FOR INCOMPREHENSIBILITY

Before the court is a motion entitled "Defendant's Motion to Discharge Response to Plaintiff's Response to Defendant's Response Opposing Objection to Discharge." Doc. #7. As background, this adversary was commenced on December 14, 2005 with the filing of the plaintiff's complaint objecting to the debtor's discharge. (Doc. #1). Defendant answered the complaint on January 12, 2006. Doc. #3. Plaintiff responded to the Defendant's answer on January 26, 2006. Doc. #6. On February 3, 2006, Defendant filed the above entitled motion. The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.

Not too bad, right? We have all received papers from an adversary that were virtually unfathamable. So, we thought the denial was pretty creative. It's the accompanying footnote that took us for a loop:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

While the motion may have deserved an unfavorable reception, the court's footnote struck us as a prime example of "the pot calling the kettle black." In our opinion, the insults were needless, unjustifable, and exceeded the bounds of appropriate judicial conduct.

Judge Clark, you may want to consider turning over a new leaf.

For a copy of the Bankrupty Court's order in the Matter of Richard Willis King, please click on the following link:
Order Denying Motion for Incomprehensibility

Posted by Lucas A. Ferrara, Esq. at 8:26 AM | Permalink | TrackBacks (0) | Comments (0)

Last week, Bianca Jagger--international jet-setter, social activist and former spouse of Rolling Stone, Mick--almost went to jail for not paying her rent. (Apparently, Ms. Jagger gave her landlord "no satisfaction.")

"Doo Doo Doo Doo Doo...."

In an order filed on September 1, 2006, a New York County Supreme Court Justice found Bianca in contempt of court for "willfully disobeying the explicit directives of two prior court orders requiring [Bianca] Jagger to pay rent and/or use and occupancy" to her landlord, Katz Park Avenue Corporation. The court perceived Jagger's conduct as "calculated to...defeat, impair, impede and prejudice [Katz's] rights and remedies."

"Doo Doo Doo Doo Doo...."

In addition to a $500 fine, Jagger was directed to pay $4,614.29--her February 2006 rent--into court and to continue paying that sum while the case is pending, "on the first day of each month, without setoff or deduction."

"Doo Doo Doo Doo Doo...."

The Supreme Court's order just doesn't sit right with us. For some two centuries, the law has been that you can't imprison tenants for not paying their rent. (Think about it. If it had been a remedy readily available to landlords, loads of non-paying tenants would be housed in penal institutions throughout our great state.)

"Doo Doo Doo Doo Doo...."

While a court has the power to punish a party for civil contempt when there is a "non-payment of a sum of money, ordered or adjudged by the court to be paid," that procedure is restricted to "where by law execution can not be awarded for the collection of such sum...." [Judiciary Law section 753(A)(3)]. In other words, if a money judgment will afford an opposing party sufficient relief then--according to established appellate caselaw--"the remedy of contempt is unavailable."*

"Doo Doo Doo Doo Doo...."

Since Bianca is good for the money, we're not quite sure why things went the way they did. But, as the saying goes, it ain't over till the skinny (old) guy sings....

"Hey! You! Get off of my cloud...."

For a copy of the Supreme Court's Order in Jagger v. Katz Park Avenue Corp., please click on the following link:
Bianca Jagger

------------
* See, e.g., 4504 New Utrecht Ave. Corp v. Pita Parlor, Inc., 143 A.D2d 171, 531 N.Y.S.2d 622 (2d Dep't 1988) ("The plaintiffs were entitled...to the alternative relief requested in their motion, which was for a judgment for the use and occupancy arrears."); Takaya v. Syndicom Corp., N.Y.L.J., 6/15/01, p. 20, col. 1 (App.Term, 1st Dep't) ("The remedy of civil contempt was unavailable for tenants' failure to comply with a prior order directing them to pay use and occupancy, since the order was enforceable as a money judgment pursuant to CPLR Article 52....").

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (2)

With retirement only two years away, the Honorable Laura Blackburne was recently "defrocked" by the New York State Court of Appeals and removed from the bench as a Justice of the Supreme Court for a widely reported mishap that occurred in her courtroom on the morning of June 10, 2004.

On that date, Detective Leonard Devlin reported to Justice Blackburne's courtroom to arrest Derek Sterling, who was accused of having committed a serious robbery and assault. While the court was in session, Detective Devlin approached Sergeant Richard Peterson, a court officer, and advised Peterson that he wished to question Derek Sterling in connection with a robbery. As the Detective waited in the hallway (to avoid disrupting the ongoing proceedings), the Sergeant informed the Judge of the exchange.

When she was later informed that Sterling was to be arrested, Justice Blackburne instructed the Sergeant to escort Sterling out the back entrance (by way of a "secured hallway used by judges, jurors and court staff"). The Sergeant, after being advised by an Assistant District Attorney that compliance with the Judge's request "might constitute an obstruction of justice," expressed his "discomfort" and asked the Judge to speak to the prosecutor.

Notwithstanding recommendations to allow the arrest, Judge Blackburne--"piqued" by what she perceived as a misrepresentation made by the Detective--insisted that her court officer escort Sterling out of the courthouse using a side entrance. Although Sterling escaped apprehension, he was arrested the following day at another location. And, ironically, the charges against him were eventually dismissed.

Justice Blackburne was not as fortunate. Responding to complaints (including one filed by the Patrolmen's Benevolent Association), the Commission on Judicial Conduct investigated the incident and found the court guilty of "judicial misconduct." Eight members voted for "removal," and two for "censure." On appeal, the New York State Court of Appeals looked unfavorably upon the Judge's actions and refused to excuse the jurist's conceded "error in judgment."

Citing no other reported instance of a judge facilitating "the escape of an accused violent felon," the Court of Appeals chastised Judge Blackburne for "impeding the legitimate operation of law enforcement." As the court noted in its decision:

[B]y helping a wanted robbery suspect to avoid arrest, [Justice Blackburne] placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court. Although "removal is not normally to be imposed for poor judgment, even extremely poor judgment"...[Justice Blackburne's] dangerous actions exceeded all measure of acceptable judicial conduct. By interposing herself between the defendant and the detective, petitioner abandoned her role as neutral arbiter, and instead became an adversary of the police. This is completely incompatible with the proper role of an impartial judge.

A lone dissenter, the Honorable George Bundy Smith, disagreed with his colleagues and asserted that a "censure" would have been appropriate under the circumstances. He noted, "While it is true that judges should set high standards, it is also true that judges are human and may err. An error in judgment by this judge, approximately two years from retirement, should not lead to removal."

While we certainly question the Judge's "impulsiveness" and the inappropriate exercise of her discretion, we are not convinced that this isolated instance warranted the severe sanction of "removal" from office. As far as we can tell, no criminal charges were brought against the Justice, nor was she arrested or indicted for her "indiscretion." Since she was apparently not prosecuted criminally for her acts nor found "guilty" of any criminal wrongdoing, we agree with the dissent that Justice Blackburne deserved a "second chance."

For a copy of the Court of Appeals's decision in Matter of Blackburne, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_04748.htm

For a copy of the underlying decision issued by the New York State Commission on Judicial Conduct, please click on the following link:
http://www.scjc.state.ny.us/Determinations/B/blackburne.htm

For a copy of the Commission's press release (dated November 22, 2005), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/nov__dec__2005.htm

-----------------
Note: On August 3, 2006, Blackburne's daugher, the Honorable Anna Blackburne-Rigsby was appointed an associate judge of the District of Columbia Court of Appeals. (Blackburne-Rigsby previously served as an associate judge to the Superior Court of the District of Columbia.) Prior to her mother's removal from the bench, the two women were reportedly the only mother and daughter judges on U.S. courts of general jurisdiction.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (2)

Justice Duane A. Hart of the Queens County Supreme Court should have sensed he was heading for a train wreck after the third mistrial of a contentious "unjust enrichment" and "constructive trust" dispute involving a father and son. On April 21, 2003, while the matter was on its fourth go-around, Judge Hart recessed at 1:00 P.M., and directed the parties to return the following day. An application made by one of the litigants, John Modica, to adjourn the matter an additional day (so that he could attend his son's championship soccer game) was denied.

Intending to reiterate his adjournment request, Modica later approached the Judge in a courthouse parking lot, but that effort was quickly rebuffed and security personnel were called to escort Mr. Modica away. An incident report prepared by the officer on duty noted that Modica was reprimanded and advised "not to approach any judge at any time," and further noted that Judge Hart had requested that no further action be taken against Modica.

The following morning, when the parties returned to the courtroom, Justice Hart appeared "angry and upset" and indicated to those present that he had been "accosted" the day prior and was considering finding Modica in contempt of court and having him imprisoned for 30 days or more. Although the Judge initially recanted the threat, when Modica's counsel requested that a formal record of the exchange be made, the Court responded as follows:

I find your client in contempt. He tried to intimidate the Court. I sentenced him to 30 days. I will suspend sentence pending the outcome of this trial. If I hear so much as a muttering from him, if I think that he's making a face at me, if I think he's doing anything, he shall be remanded by Officer Battle forthwith, and he shall spend every bit of 30 days as a guest of the City of New York. I find that his act in accosting me in the parking lot was contumacious conduct, if there ever was contumacious conduct. He was not supposed to do it. Let the record show I tried to let it go with a warning, but you and your associate decided to put it on the record, and I told you if you wanted to keep the matter going, fine. I will hold him in contempt and therefore I did.

At day's end, the lawsuit was dismissed and the contempt finding vacated.

In response to a complaint later filed with the New York State Commission on Judicial Conduct, the Commission censured Judge Hart for his failure to exercise appropriate restraint and the inappropriate use of the Court's contempt powers. In its decision the Commission noted as follows:

We find respondent's misconduct particularly troubling notwithstanding that later that same day, at the conclusion of the trial, he corrected his injudicious decision by vacating the contempt finding. Several factors have persuaded us that a severe sanction is appropriate in this case.

First, respondent continues to insist that his actions were appropriate and, indeed, asserts that in similar circumstances he would do the same thing again. Such intransigence suggests that respondent still fails to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards. A judge's fail[ure] to recognize the inappropriateness of his actions or attitudes is a significant aggravating factor on the issue of sanctions.

Second, we note with concern respondent's conflicting testimony as to certain matters...as well as his tendency to accuse others of misdeeds in order to justify his own misbehavior. Respondent's claim that he tried to prevent the attorney from making a record because he knew the attorney wanted to make a "phony" record is entirely unsupported.

In sum, we find that respondent's conduct constitutes a significant departure from the role of a judge, who is required to be the exemplar of dignity and impartiality and to exercise the considerable powers of judicial office within the bounds of the law. We trust that respondent will learn from this episode and that, in light of this decision, he will modify his behavior appropriately....

On appeal, the Court of Appeals of the State of New York affirmed the Commission's findings and sanction. It would appear that the Court's affirmance was predicated, in large part, upon Judge Hart's refusal to acknowledge his error or to express remorse for his conduct. In a telling coda to its decision, the majority noted, in pertinent part, as follows:

A judge need not adopt a posture of obeisance before the Commission or this Court. A judge must, however, recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue.

In a dissent, the Honorable George Bundy Smith asserted that the formal rebuke which Judge Hart received (and the Court's affirmance of that sanction) was "uneven" and "at odds" with prior cases which involved judicial misconduct considerably more egregious. Judge Smith believed that Judge Hart's conduct did not rise to the level of prior reported cases of judicially directed detention, imprisonment, and other abuses of power which triggered the same penalty. We agree.

While Judge Hart may have acted impulsively, we believe the Court of Appeals may also have acted somewhat precipitously. Since Modica was never incarcerated, it's unclear how he was harmed, particularly since it was Modica that initiated the one-sided (ex parte) communication with the Judge (outside the presence of all counsel).

To some degree, once must respect Judge Hart's belief that his actions were justified and appropriate under the circumstances. Should he have been penalized for his refusal to acknowledge what others perceived as error? We think not. We believe that the Judge's behavior should have been assessed independently of any requirement that an apology or other expression of remorse be proffered. And, since this appears to have been an isolated incident or occurrence, we don't understand why Judge Hart was not given the benefit of the doubt.

After all, being a judge is often a matter of heart, isn't it?

For a copy of the Court of Appeals's decision in Matter of Hart, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03471.htm

For a copy of the underlying decision issued by the New York State Commission on Judicial Conduct, please click on the following link:
http://www.scjc.state.ny.us/Determinations/H/hart.htm

For a copy of the Commission's press release (dated November 15, 2005), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/nov__dec__2005.htm

-----------------
Note: After a formal hearing, the Commission is empowered to dismiss the complaint, privately caution the judge about the matter, publicly admonish, censure, or remove the individual from office.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

It's fortunate for the Honorable Gregory A. Presnell, a United States District Court Judge of the Middle District of Florida, that federal judges have life tenure. Appointed in 2000, by President William Jefferson Clinton, Judge Presnell has been the subject of national attention, and considerable public ridicule, as a result of a decision made by him in the case of Avista Management, Inc. v. Wausau Underwriters Insurance Company.

Unable to reach an agreement as to location of a deposition (pretrial questioning of a witness under oath), the parties asked the court to decide the dispute. Rather than resolve the matter, on June 6, 2006, the court directed the attorneys to employ a rather unorthodox decision-making alternative: the game of "rock, paper, scissors."

In sum and substance, Judge Presnell required the advocates to meet on June 30, 2006, at 4:00 PM, at a "neutral site agreeable to both parties." Once assembled, the attorneys are to engage in one game of "rock, paper, scissors," with the victor entitled to select the deposition's location.

Just in case it's been a while since you've last played the game, here are ground rules:

Rock wins against Scissors.

Scissors wins against Paper.

Paper wins against Rock.

In response to Judge Presnell's Order, a representative of the USA Rock Paper Scissors League commented, "When someone uses rock, paper, scissors to adjudicate any kind of dispute that is a positive moment for the world."

We don't agree. With the mounting public dissatisfaction with trial judges, attorneys, and the escalating costs and increasing delays that have become part and parcel of litigation, it serves no legitimate purpose to make a mockery of the process or its participants. To say nothing of the ethically questionable nature of the judge's conduct.

All federal court judges are expected to comply with a "Code of Conduct," which provides that judges must "uphold the integrity and independence of the judiciary," and, "avoid impropriety and the appearance of impropriety." These high standards were promulgated to instill and preserve public confidence in the judiciary. We don't believe those goals were furthered by Judge Presnell's June 6, 2006 Order in any meaningful or positive way.

Yes, some lawyers can be stubborn, if not downright annoying, but there are an array of remedies and procedures in place (like monetary penalties or "sanctions") that can be used to reign them in. Relegating the practice of law and the role of the judiciary to "child's play," is an affront to us all.

For a copy of Judge Presnell's Order, please click on the following link:
Avista Management, Inc. v. Wausau Underwriters Insurance Company

For a copy of the Code of Conduct for United States Judges, please click on the following link:
http://www.uscourts.gov/guide/vol2/ch1.html

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (4)