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NY Judges Packing Heat?

As reported in this CNN article, the New York Advisory Committee on Judicial Ethics has issued an advisory opinion indicating that it's ok for judges to carry concealed firearms while on the bench.  The ruling was in response to an inquiry from a judge as to whether it was "ethically permissible" to carry a pistol in the courtroom.  The Committee stated that:

From an ethical standpoint, there is no prohibition ... barring you from carrying a firearm while performing your duties on the bench...(Judges must) be patient, dignified and courteous" to those appearing before the bench and behave in "a manner that promotes public confidence in the integrity and impartiality of the judiciary...This committee believes that keeping your firearm concealed and safeguarded on your person while you are on the bench is advisable...

Keep that in mind next time you disagree with a judge's ruling.  Tread softly.  And remember to duck.

Brief Hiatus

As of today, this blog will be on a brief summertime hiatus.  Posting will resume in one week or so.

In the meantime, for some interesting reading, I recommend that you take a look at this post from Prettier Than Napoleon in which Amber asks why there are so few female Supreme Court law clerks.

A number of well known bloggers, many of whom are law professors, jumped on the bandwagon and addressed the issue on their own blogs.  Sidebar has a good summary of the related posts by other bloggers in addition to an amusing round up of comments from one of the more well known blogs. 

Another worthwhile read is the following article, originally published in the New York Post op-ed section on June 30, 2006 (and no longer available online).  It was brought to my attention by the author, Walter Olson from Overlawyered and Point of Law and addresses the high stakes of the New York gubernatorial race given that the winner will get to  fill three seats on the Court of Appeals within his first year or so  in office.  ReformNY also recently posted about the status of one of the potential vacancies here.

Here is Mr. Olson's article, in its entirety:



June 30, 2006 -- AT least three of the seven seats on the Court of  Appeals, the state's top court, will fall open early in the term of  Gov. George Pataki's successor. So either Democrat Eliot Spitzer (or  maybe Tom Suozzi) or Republican John Faso will take a major hand in  shaping the future direction of the Empire State's legal system - and  the differences between Spitzer and Faso in particular carry big  implications for the state's schools, public safety and business  climate, for starters.

Considering the power it wields, the Court of Appeals keeps a  remarkably low profile in fractious Albany. Even its modest name  helps deflect controversy: It's no less "supreme" than other states'  high courts, but doesn't wave the word in your face.

And New York's top judges have generally avoided the bitterly  divisive high-court politics seen in states like California, Texas  and Ohio. Differences between members of the court get aired in  relatively amiable fashion.

Ideology does rear its head - the court often splits on liberal- conservative lines. A prime example is its 2004 decision striking  down the state's death-penalty statute, over a dissent by three  Pataki appointees.

For years, New York's high court was among the nation's most  prominent liberal voices on criminal-justice issues, delighting civil  libertarians and frustrating police advocates with rulings extending  Miranda rights, the exclusionary rule and so forth. That's been  changing lately as Pataki appointments have joined the court.  Republican nominee Faso, who has promised to make crime an issue this  fall, may argue that opponent Spitzer is too beholden to Democratic  constituencies to follow up on this trend.

The new chief executive will have a choice of replacing or  reappointing Chief Judge Judith Kaye and Carmen Beauchamp Ciparick  from the court's liberal wing, and swing voter Albert Rosenblatt, all  of whose seats fall vacant early in his term.

Then there's the ongoing mess arising from the Campaign for Fiscal  Equity litigation. Backed by teachers unions and other interested  parties, CFE has prevailed on the courts to assert control of school  budgeting - pushing state taxpayers to shell out more for urban  schools, especially New York City's, which are already richly funded  by national standards.

The Court of Appeals has generally given a green light to the  activism of trial court judge Leland DeGrasse in the case. It's a  fair bet that Faso appointees would be more sensitive to suburban  interests and less enthusiastic about letting budgeters' every  decision get second-guessed in court.

One possibly relevant precedent comes from Connecticut: In the Sheff  v. O'Neill litigation, our neighboring state's closely divided high  court briefly embarked on an ambitious social-engineering scheme  aimed at rescuing urban schools at suburbs' expense - but then backed  off after a GOP governor's appointment power changed the court's makeup.

Tort law is another sensitive area. Just this March, the Court of  Appeals once again divided 4-3 in voting to uphold an award of $1.4  million to Juan Soto, who was injured after trespassing on the  elevated tracks near Queensboro Plaza and trying to outrun a No. 7  train. Judge Robert Smith, appointed by Pataki, objected to no avail  that Soto's "injuries were entirely his own fault." Lawyers for New  York City cite the high court's willingness to uphold gigantic awards  as a factor in pushing the city's liability pay-outs skyward, to $575  million in 2004.

On other matters of business law, the court has mostly followed a  middle-of-the-road course, perhaps mindful that to do otherwise might  imperil Gotham's role as the nation's commercial hub.

For instance, both wings of the court came together in a unanimous  2001 decision rejecting wacky theories holding the firearms industry  financially responsible for the misuse of guns in crimes. That ruling  must have come as a sting to the public official more closely  identified than any other with those wacky theories - one Eliot Spitzer.

Given Spitzer's record, it's a fair question whether he might start  filling the court with judges who'd start dashing off on anti- business crusades. That would be a sure way to drive corporate  headquarters, Wall Street and international commerce to more  welcoming legal pastures, much as the excesses of the California  Supreme Court in recent decades have contributed to that state's  business woes.

Reporters should ask both candidates about their plans for Court  appointments. The stakes are high.

Walter Olson is a senior fellow at the Manhattan Institute and edits  the Web site

Define That Term #125

Monday's term was unclean hands, which is defined as:

n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough. See also: affirmative defense.

Bernard Schneider got the basic gist of it--and came up with his own creative definition.  As a result, in accordance with Slickdpdx's suggestion, Bernard gets a double word score--twice the points.  Way to go Bernard!

Today's term is: 

widow's election.

Good luck, and no dictionaries, please.

Comedic Break

Another funny courtroom transcript.  I think we've all had days like these:

By Attorney:  Does Quicken have -- strike that. Did the Quicken program that you acquired have a capcity to generate a financial statement?

By Witness:  Yes.

:  Was Quicken a -- was the Quicken program that you -- when did you -- I'm sorry. Let me start over. When was the Quicken program first acquired?

Witness:  January 1st of 1992.

Attorney:  I don't know what I'd do if I weren't so articulate. It's been the key to my success so far.

Monday's NY Blawg Round Up

It's time for the Monday New York blawg round up--and it's actually on Monday this week, too!  Here are some interesting posts from the past week:

Indignant Indigent

Long Island (Criminal) Trial Law


Second Circuit Sentencing Blog

Second Opinions

The Volokh Conspiracy

Hernandez v. Robles--What Is "Marriage", Anyway?

That's what the New York Court of Appeal's decision in Hernandez v. Robles, 2006 NY Slip Op 05239,  boils down to as I see it--the very essence of marriage. 

I found that reading the majority and concurring opinions was like playing a game of mental leapfrog.  The logical flow of the arguments was convoluted at best.  And, the dissenting opinion wasn't much better. 

I think the underlying problem with this decision is the Supreme Court's determination that marriage is a fundamental right.  The Supreme Court made this determination to right a wrong--anti-miscegenation laws that forbade interracial marriage.  But, by doing so, in my opinion, the Supreme Court constructed a logistical framework that was not easily transferable to other issues, such as this issues raised in this case.  (Roe v. Wade is another example of a similar phenomenon.) As a result, the attempts by the various state courts to construct logical arguements either in favor or against gay marriage fail.

The majority and concurring opinions rely on the assertion that marriage is all about procreation.  The following is quoted in the concurring opinion:

Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialized

I find the concept of the government attempting "regulate" heterosexual behavior through the institution of marriage to be completely offensive and have half a mind to run out and get a divorce just to defy authority and stick it to the man.  Marriage is about far more than "heterosexual sex", and many heterosexual couples marry and never even have children, for any number of reasons--including personal choice or infertility.

What I find to be problematic about this decision is that each side conveniently ignores facts or scenarios that create glaring holes in their argument.  The concurring and majority opinions attempt to differentiate homosexual relationships from heterosexual relationships by virtue of the possibility of a child being conceived from fleeting moments of passion in heterosexual relationships.  While that is certainly a true observation, that's not the only way children are conceived in heterosexual relationships, and in fact, more and more children are being conceived through fertility treatments, or are adopted, which the majority and concurring opinions fail to even acknowledge: 

Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.

I simply do not see how heterosexual couples undergoing fertility treatment or the adoption process  are subtantially different from homosexual couples doing the same thing.  Some heterosexual couples are identically situated to homosexual couples in that regard.  Therein lies the fundamental (and I hate to use that word!) flaw in their logic that they conveniently gloss over. 

And, the attempt to differentiate gay marriage prohibitions from interracial marriage prohibitions is convoluted and circular, simply by virtue of the fact that it's illogical to make that claim.  For example, take this paragraph from the majority opinion and substitute the words "same-sex" with "interracial" and "different sex" with "same race':

The idea that same-sex (*interracial*) marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex (*same race*). A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

The prohibitions are one and the same, except that a different classification is forbidden.

While I find the dissent's position to be more palatable, from a personal standpoint, there are logical flaws inherent in that argument as well, the primary one being that raised by Slickdpdx in this post at his blog knownunknowns and in the comments to my prior post on this decision:  that the dissent's position arguably allows for polygamous marriages, and Judge Kaye never addresses that possibility.

That being said, the following quotes from her decision in which she frames the various issues made far more sense to me than the majority and concurring opinion's attempt to frame the issues did:

But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights...

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them...

Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law...

Under the Domestic Relations Law, a woman who seeks to marry another woman is prevented from doing so on account of her sex—that is, because she is not a man. If she were, she would be given a marriage license to marry that woman...

The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion...

But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone...

Nor does this exclusion rationally further the State's legitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry, and many same-sex couples do indeed have children...

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute...

The bottom line for me is that the government should not be involved in marriage at all.  There should simply be religious and/or civil unions which are recognized by the state after they've occurred.  The state should play no part in the creation or approval of those unions , and thus the right to marry is not, in and of itself, a "fundamental" right, since it's not state-sanctioned.  It simply falls under the umbrella of the fundamental privacy rights already established.

I'm not quite sure where polygamy fits into that proposed scheme, though.  While I personally find the concept of polygamy to be objectionable, I'm not sure why it should be forbidden by the government.  The more I think about it, it seems to be yet another form of discrimination.  However, I haven't looked into it in depth, and would love feedback on that issue.

So, that's my take on this momentous decision.   What's yours?

Define That Term #124

Thursday's term was family purpose doctrine, which is defined as:

n. a rule of law that the registered owner of an automobile is responsible for damages to anyone injured when the auto is driven by a member of the family with or without the owner's permission. The theory of this liability is that the vehicle is owned for family purposes. This doctrine is the law in some states instead of making a registered owner liable for damages caused by anyone driving his/her car with permission.

No one guessed.

Today's term is:

unclean hands.

Educated guesses only, please.  No dictionaries.

A Fugitive No More

Yesterday, the Suffolk County Supreme Court issued an interesting extradition decision.  In People v. Pataki, 2006 NY Slip Op 26272, Howard Blake was charged under a governor's warrant with being a South Carolina fugitive.  He was accused of escaping from prison in 1976 and had been serving a sentence of 7 years for bad check charges and a probation violation from a prior Grand Larceny.  In 1993,  he was arrested on an extradition demand from  South Carolina and: 

As a result of information thereafter provided to then South Carolina Governor Carroll A. Campbell, Jr., the Governor chose not to pursue the extradition. In an April 8, 1993 letter to the Commissioner of the S.C. Department of Corrections Governor Campbell wrote, "Fully cognizant of the interest of the Department in this matter, I have reviewed the circumstances of this case, and believe it would be neither in the best interests of the Department, nor in those of the State of South Carolina, to pursue the extradition of Mr. Barnett. Consequently, I will not sign the authorizations necessary to initiate extradition in this case, based upon my consideration of the exceptional circumstances."

Mr. Blake then returned to "everyday life" and "has lived continuously at the same address in Suffolk County, New York since 1983. He was married in 1987, helping to raise his wife's three children from a prior marriage. He and his wife also had two children of their own in 1988 and 1992."

In October 2005, 12 1/2 years later, he was arrested at JFK airport based upon a warrant of extradition from South Carolina, but was subsequently released when the appropriate paperwork was no filed within 90 days.

He was again arrested in his home in February of 2006 "on a governor's extradition warrant based upon a January 9, 2006 Governor's Requisition signed by South Carolina Governor Mark Sanford arising out of the exact same facts and circumstances as the 1993 extradition proceedings."

He filed a writ of Habeas corpus shortly thereafter. 

The Court first noted its only course of action in this situation: 

A court considering a petition for habeas corpus in these circumstances "can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978).

The Court stated that it could find no cases with a similar fact pattern and then held that:

(T)his court finds that the right to demand extradition of the petitioner was waived by the actions of the then Governor of South Carolina in 1993. As a result of the actions of the highest executive officer of that state, petitioner ceased being a fugitive as of April 8, 1993. That official act should have been the end of the saga. Petitioner has not been a fugitive for over 13 years, and no act of a subsequent governor, however well-intentioned or whimsical, can resurrect petitioner's status as a fugitive so as to make him eligible for extradition.

This poor guy.  His life was turned upside down twice, more twelve years after the first warrant was abandoned.  I hope he was able to keep his job in spite the of arrests. 

I wonder of the governor of South Carolina is going to recall the outstanding warrant or if Mr. Blake is going to have to stay within the borders of New York for the rest of his life or risk getting picked up on the warrant in another state.

In any event, an interesting case--at least from the perspective of a bystander.  I highly doubt that Mr. Blake would agree with that characterization.

NY Court of Appeals Hands Down Ruling on Gay Marriage

I'll post more thoroughly about this case in the very near future, but here's the holding from Hernandez v Robles, 2006 NY Slip Op 05239, in a nutshell: 

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature....

We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side — and we know, of course, that there are very powerful emotions on both sides of the question.