Courts

Federal Judge Rejects Libous’ Motion For Details On Case

A federal judge this week denied a request from the attorney of Sen. Tom Libous seeking more information on prosecutor’s case against the Binghamton lawmaker, according to court documents.

Libous attorney Paul DerOhannesian filed papers this week seeking a range of information beyond what was included in this month’s indictment that charged the number two Republican in the state Senate with lying to the FBI.

DerOhannesian provides legal analysis on TWC News.

The information sought by DerOhannesian included requesting federal prosecutors to identify the “exact statements” Libous allegedly made to the FBI as well as the questions agents posed to him.

Reportedly, the conversation between Libous and FBI — which stemmed from whether the lawmaker arranged for his son to receive a job at a politically connected law firm in Westchester County — was not recorded.

But the motion was denied by U.S. District Court Judge Vincent Briccetti on the grounds the request for information was “premature.”

“Although the Court does not presume to tell defense counsel how to defend this case, it might be more efficient to review the discovery produced by the government and then make an informal written discovery demand for the information to which counsel believes defendant is entitled but has not yet received,” the judge ruled.

Libous Motion by Nick Reisman

Libous Motion Denied by Nick Reisman

Lippman Pushes Credit Collection Reform

Chief Judge Jonathan Lippman at a Commencement Law Day gathering on Wednesday announced plans to overhaul credit collection lawsuits — a move designed to aid the poor and elderly who are sued by debtors.

Among the changes Lippman is implementing with the state court system include new requirements that creditors must submit affidavits that include detailed proof in support of a default judgment and would ban robosigning.

The affidavits submitted by creditors would also have to become more specific in their allegations.

Lippman wants statewide rules that would end the practice of suing on debt after the statute of limitations has expired. This is meant to stop the so-called “sewer service” in consumer debt cases.

The court system is also requiring “user-friendly” forms that would provide consumers appearing in court to have access to information and resources, which is aimed at allowing them mount an appropriate defense.

“While no one disputes that consumers should pay their debts or that businesses have every right to resort to the courts to collect what is legally owed to them, the Judiciary has an obligation to prevent inequitable debt collection practices in the courts and ensure a fair legal process for all litigants. Dubious consumer debt litigation practices can lead to unwarranted default judgments, often with devastating consequences for the debtor ─ typically a lower-income New Yorker struggling to support a family and find or maintain a job,” Lippman siad in a statement.

Lippman Says Judicial Age Raise ‘Still Makes A Lot Of Sense’

Court of Appeals Chief Judge Jonathan Lippman told me an interview last week that he still believes in the push to raise the retirement age for judges, adding that the measure should be revisited at some point.

“I think it still makes a lot of sense,” he said. “We’ve got to find a way to get that message across.”

Voters this past November turned down a proposal to increase the retirement age for certain state judges. Under the failed amendment, judges on the state Supreme Court and on the Court of Appeals would retire at 80, up from the current retirement age of 70.

Lippman himself will be forced to retire in 2015.

Sitting judges cannot advocate for a constitutional amendment, but the measure was supported by a political action committee that included contributions from retired judges, as well as the state’s top politically connected law firms.

Lippman himself insisted he never coordinated with the committee, Justice For All.

Opposing the measure, albeit quietly, was Gov. Andrew Cuomo, who will be able to remake the entire Court of Appeals with his own appointees due to pending retirements should he be re-elected to a second term.

Still, Lippman believes the amendment should have another shot.

“We’re going to revisit it,” Lippman said in the interview. “I think that we have to take a look at the proposal. The proposal that was on the ballot was not the one we submitted or at least I submitted. We want to take a look at it, go back to the drawing board, get a proposal that will hopefully affect all of our judges.”

Lippman said the public needs to be presented with a proposal framed this way: “To keep the experienced, wise judges is good for our society, good for citizens and something that makes sense.”

It’s not entirely clear what form another age raise amendment campaign would take, and voters wouldn’t be able to consider such a move for at least several years.

“I think we can do that, but it’s got to be thoughtful,” Lippman said.

In State Of The Judiciary, Lippman Focuses On Legal Services For The Poor

Chief Judge Jonathan Lippman on Tuesday called for enhancing legal services for the poor and indigent in his State of the Judiciary address, while also pushing a 2-1/2 percent funding increase for the court system’s budget.

Before a packed audience in the Court of Appeals ornate chambers, Lippman pushed for a variety of methods that would expand the use non-lawyers to provide legal services, relying on trained legal experts and third-year law students.

The address at the same time emphasized legislative proposals that crack down on wrongful convictions, reform the juvenile justice system and add 20 judges to the Family Court system.

Lippman proposed the Pro Bono Scholars program, which would require third-year law students to provide up to 500 hours of legal work on the behalf of the poor. In exchange, students in the program would be eligible to take the state Bar Exam in February as opposed to July.

The state court system currently requires law students to practice 50 hours of pro bono legal work.

For the Pro Bono Scholars program, Lippman is turning to Associate Judge Victoria Graffeo to lead an advisory committee of law school deans to develop the timetable and implementation of the program.

At the same time, Lippman backs a plan that would expand the role of non-lawyers providing legal services to the poor.

Lippman backs a proposal that would allow trained, non-lawyers called navigators to be permitted to accompany unrepresented litigants in the courtroom in the Brooklyn Housing Court and Bronx Civil Court.

Though they won’t be permitted to address the court, Lippman said the navigators will “provide moral support” as well as answer factual questions if directed by a judge.

“All these efforts will help us address the crisis in civil legal services for the poor in ways that will supplement services provided by the legal profession, which has nothing to fear from these new projects. These efforts are aimed at groups who cannot afford to pay a lawyer under any circumstances and are unable to access free legal services,” Lippman said. “And they seek to provide information and help that fall outside the practice of law.”

Lippman also backs a proposal that would help those convicted of low-level misdemeanors and non-violent felonies the ability to expunge criminal history records provided that they can live a “law-abiding lifestyle.”

Lippman wants to create a uniform system for dealing with DWI cases that is aimed at reducing repeat offenses. Lippman backed a plan that would establish DWI parts in the superior court in every state county.

Judges will receive special training for the DWI cases and treatment will be mandatory for those who are identified to have an alcohol or substance abuse dependency.

Lippman called for more spending in the state court budget, saying the years of austerity budgets have impacted those who need access to the courts.

“The people of New York, who so often come to us at their most vulnerable moments, cannot afford to see courtrooms close, or court hours reduced or the wheels of justice come to a halt,” he said.

Court Of Appeals Sides With Fox News Reporter

The state Court of Appeals in a ruling released Tuesday sided with a Fox News reporter who authorities in Colorado are trying to compel her to reveal her source.

In a 4-3 ruling, the court found that the state’s shield law applies to reporter Jana Winter, who had reported on the contents of a notebook written by alleged Colorado movie theater shooter James Holmes.

While officials wanted to know who her source was for obtaining the notebook, lawyers for Winter argued that she was protected under the state’s shield law for reporters.

In the majority opinion, Judge Victoria Graffeo stressed it was not granting the state’s shield extra authority in another state and that its ruling was narrow:

And lest there be any confusion, we reiterate that the issue we confront is whether a New York court should issue a subpoena compelling a New York journalist to appear as a witness in another state to give testimony when such a result is inconsistent with the core protection of our Shield Law. Thus, the narrow exception we recognize today, which permits a New York court to consider and apply New York’s journalist’s privilege in relation to issuance of its own process — a subpoena — in a narrow subset of cases, is not tantamount to giving a New York law extraterritorial effect.

In a dissenting opinion, Judge Robert Smith — the father of BuzzFeed editor Ben Smith — said just because the communication took place in New York doesn’t mean the state’s shield law applies.

“I do not think this is a proper case, however, because the allegedly privileged communications took place wholly in Colorado, and the New York Shield Law does not apply to them,” Smith wrote.

190710996 Foxnews Court by Nick Reisman

Fox News Reporter’s Case Could Test Strength Of Shield Law

The state Court of Appeals on Tuesday will hear the case of a Fox News reporter who is being asked to release the name of a source who provided her with the details of the diary kept by James Holmes, the man accused of killing 12 people in a shooting rampage in Aurora, Colorado.

The case could challenge New York’s Shield Law for those acting as journalists and how far it can stretch in other states.

In a story posted on Fox News’s website, Winter reported Holmes had mailed a notebook of details of how he was going to kill people to a University of Colorado psychiatrist before the attack in the movie theater citing two law enforcement officials.

Attorneys for Holmes claim the release of the details violated a judicial gag order and, despite calling 14 different law enforcement officials to court, it was not determined who leaked the information.

Following that, attorneys for Holmes began the current proceeding in Manhattan Supreme Court to compel Winter to testify and produce notes on her sources.

Holmes’ lawyers argue New York’s law doesn’t apply in this case.

“… It calls into question whether this matter truly embodies a conflict between evidence privileged under New York law and and evidence that is unprotected in the demanding State.”

But Winter’s attorneys disagree, stating in court documents that the state’s shield law is “violated when a court of this state directs a report to appear in another state, where the purpose of requiring her appearance is to obtain from her the identity of her confidential sources, and where this is a substantial possibility that he demanding court will issue such a directive.”

Political Consultant Melvin Lowe Charged With Fraud

Prominent political consultant Melvin Lowe is in federal custody today after being charged in a nine-count federal complaint that includes multiple charges of fraud and criminal tax violations.

According to the complaint filed in U.S. District Court, Lowe is accused of failing to report more than $2 million in his consulting income from the Democratic Senate Campaign Committee.

He is accused of using a fraudulent invoice to defraud DSCC and its contributors out of $100,000.

Lowe is accused of taking $100,000 in payments from the Democratic conference’s campaign account for direct mail printing services that were never actually provided.

Federal officials are also accusing Lowe of making a payment of $20,000 to an unspecific consultant several days after a Senate lawmaker — identified in the complaint as “Senator No. 1″ promised to pay the consultant for services already provided.

Lowe was one of nine people who had been secretly recorded by now ex-Sen. Shirley Huntley, a Queens Democrat who was jailed in connection with a scheme to siphon funds from a non-profit she controlled.

Lowe, 52, has been a prominent figure in New York political circles for more than a decade. He was mentioned in the acknowledgements section in Gov. Andrew Cuomo’s book “Crossroads.”

LoweMelvin Complaint by Nick Reisman

Justice For All Continues To Garner Law Firm Contributions

Justice For All, the organization that supports raising the retirement age for state Supreme Court and Court of the Appeals judges, has raised $144,630 in the most recent reporting period and spent heavily on mailers, a phone campaign as well as social media advertising.

The group has garnered support from influential law firms in New York, as well as a $1,000 contribution from former New York City comptroller Bill Thompson, who ended his bid last month for the Democratic nomination for mayor.

Also donating again to the effort was former Court of Appeals Judge Carmen Ciparick, who gave $1,500.

Former Chief Judge Judith Kaye contributed $1,500 as well.

Also contributing were law firms like Ruskin Moscou & Faltischek P.C. and Duffy & Duffy LLC.

All told, the group has $206,863 in the most recent reporting period, $99,500 go toward mail and $50,000 for a phone program as well as $7,000 for social media advertising.

Justice For All has retained the MirRam Group for his communications efforts.

Capital New York this morning reported that the organization was formed at the behest of Court of Appeals Chief Judge Jonathan Lippmann, which court officials deny.

Citizens Union Opposes Raising Retirement Age For Judges

Good-government Citizens Union said today it opposes the amendment before voters next month that would raise the mandatory retirement age for judges from 70 to 80.

The amendment would require a certification process every two years for state Supreme Court judges between the ages of 70 to 76.

At the same time, judges on the Court of Appeals would be allowed to remain on the bench without any certification to finish out their term, but not beyod age 80.

For Citizens Union, the amendment is too selective.

“Citizens Union believes there is no principled reason for raising the retirement age for only two groups of judges – judges of the Court of Appeals and the Supreme Court – and not having the same apply to the majority of the state’s judges,” the group writes. “Further, even the amendment’s limited changes appear arbitrary. Supreme Court justices would be certificated, but no such evaluation process would be in place for Court of Appeals judges to determine whether they are able to perform the duties of the office. In addition, Court of Appeals judges whose terms expire while in their 70s have to leave the bench immediately before reaching 80 and cannot be reappointed, whereas those judges whose terms expire in their late 60s can be reappointed to serve until 80. Their retirement age will thus be determined by the vagary of their age at the time of appointment.”

Justice For All, a coalition of mostly attorneys and law firms, has formed to push in favor of the amendment. Judges cannot actively campaign for the amendment, but Capital unearthed a memo this week that found judges were given talking points on how to support the ballot referendum.

Amendment Opponent Plans To File Emergency Appeal

Eric Snyder, the Brooklyn-based attorney whose lawsuit challenging the wording of the casino amendment was tossed by a state judge today plans to file an emergency appeal with the state Appellate Division.

Snyder in a phone interview with Capital Tonight said Judge Richard Platkin’s decision to dismiss his lawsuit wrongly argued his claim the Board of Elections met secretly approve the amendment language — a claim BOE officials didn’t seek to dismiss.

“I’m shocked that the court would dismiss the claim that the vote was in secret when the Board of Elections didn’t even seek dismissal of the claim,” Snyder said. “So I’m going to immediately seek emergency relief from the Appellate Court on that issue. I think the Board of Elections is ignoring the attorney general’s recommendation for a neutrally worded amendment… and the language was not changed in an open meeting as required by law.”

At the same time, the judge ruled the timing of the suit was off, considering it was filed after the statute of limitations had expired (the BOE didn’t post the updated language until after the time to file a legal claim had run out).

“Transparency and proper notice are fundamental rights in this country and that includes New York,” Snyder said.

At the heart of the challenge is what opponents believe is overly rosy wording of the casino amendment, which if approved would pave the way for four non-American Indian commercial casinos in the first phase of construction.

The amendment includes the perceived benefits of casino gambling, such as more aid for schools and help with local governments paying down property taxes.

Opponents argue the language tilts the vote in favor of approval, though Platkin says the Board of Elections is under no legal requirement to produce langauge one way or the other.

Time is working against any appeal, however, given that ballots have already been printed.

“The Appellate Division I believe hears emergency appeals on election law issues when necessary and hopefully they’ll do that here,” Snyder said. “That’s all I can ask them to do.”