Assembly report slams DoH

A recent report (pdf, 1mb)from a state Assembly investigation does not paint a pretty picture of the Department of Health. In fact, it looks more like a case study bureaucratic inertia and malfeasance. The report alleges that, systematically, DoH reviewers would deny or revise Medicaid requests for durable medical equipment (wheelchairs, for example), in contravention of the rules and regulations of the Department and the Medicaid program.

Reducing the cost of government programs is always a good idea. Doing it by blatantly violating an agency's own rules, and then thumbing one's nose at regulators, is not really recommended.

Gibson arrest

BuffaloPundit has a good post and link collection related to the Mel Gibson arrest the other day. Somewhat alarming are the allegations of the police sanitizing the report of what actually happened to avoid controversy.

Phillips Updates

The Post-Journal has two updates on the search for Ralph Phillips today. I'm posting a link to this article because it's trite, confusing as to what is a quote and what is the writer's editorial musings, and seems to forget that Phillips gets a trial before he's proven guilty of shooting Trooper Brown. I'm not a "Bucky" fan in the least, but that's part of why I'm such a nitpicker on this: I'm a believer that any person, no matter how personally rephrensible the person or the accusation, gets a day in court. Until such time as Phillips confesses or is convicted, no matter what if I think he did it or not, my personal belief is the press shouldn't report it as a given that the suspect committed an act.

The second article from the P-J. Was the injured trooper's name John, or did the P-J mess that up, too? I'm not sure I agree with the allegation of a "significant network" helping Phillips remain on the run. Four months in good weather, with a variety of shelter and food available? I'm not saying he doesn't have help--he may well--but I also don't think it's a given. Of course, those comments reflect directly back to the ongoing clash between the troopers and the Horton family, which are (in part) related to police surveillance of members of the family related to Ralph Phillips.

Weekend

Expect light posting the next few days.

Following up on the Ralph Phillips theme, as he seems to have dropped out of the news, it seems a prisoner in the Syracuse area has some pretty special escape talents. Except for the "getting caught" part.

Porco trial

Dave Rossi, the ADA on this case, was amazingly helpful and informative in my limited previous dealings with him. He was the prosecutor who earned a conviction after one of my sister's college friends was murdered by his girlfriend's jealous ex.

I'd first heard of the Porco case some time ago, in a discussion about administrative law and higher education law at private schools, from friends that worked at the U of R. It had come up because Porco the defendant was a student there at the time and the U had to decide what to do about a student being the prime suspect in a murder investigation. It's interesting to compare the procedures--especially laying the foundation of evidence--required in a trial as compared to an on-campus hearing. Especially at private schools, there's a very limited right to contest suspension/expulsion decisions when a student appears to be a danger to the community.

ETA: Trial blog at the Times-Union site.

City Council vs. Grand Jury

Syracuse's Common Council and the Onondaga County DA seem to be heading for a collision on the never-ending fight about the planned megamall. That latest to-do is an allegation of some unspecified "political misconduct" involving the City Clerk, the Open Meetings Law and the council's recent vote against the tax break package for the mall.

This is an interesting law as an academic case study in administrative law, but it never seems to hold up in practice. The exceptions outnumber the occasions when it applies, and on top of that, there's really no enforcement. As stated in the Post-Standard article, the overseeing commission had no reports of any investigation/prosecution in the previous year.

Copyright Law

ASCAP sues Syracuse bar over 5 songs sung without license on karaoke night. RIAA laughs that someone else is now seen as the overbearing bully.

Oops

Buffalo court paperwork snafu frees shooting suspect. Only temporarily, but still...if he'd tried to run he'd be long gone instead of back in lockup.

A non-legal post.

Stealing a link from Joel at Small Town Lawyer, although the editorializing is solely my own:

While it's true that NY is in an economic funk and upstate specifically has some very serious issues, sometimes misery loves company. For every pie-in-the-sky dreamer that says we just need to cut taxes and suddenly it'll be flowers and rainbows and kids never leaving the town they grew up in (I could write a book on that alone), there are studies that show sometimes our economic and "brain drain" issues are the result of larger social and economic forces and aren't entirely upstate or NY based.

My two cents, anyway.

Supreme Court

It says a lot about the Post-Journal that Sandra Day O'Connor is described as a "liberal" justice, but this was an otherwise interesting article on a recent speaker at the Chautauqua Institution.

As a side note, I've lived here for two years this month and I still don't understand what the institution is. I think it's a day camp for rich retirees from Ohio, quite frankly.

Misconduct by official

Chautauqua County legislator, local attorney and former city parking ticket hearing officer in big trouble for driving while intox and leaving the scene. Hopefully the person injured isn't hurt too badly.

I'm sure the attorney conduct folks are already aware of this, but it'll be interesting to see what follows from the accident on the polito-legal front. (As an attempt to coin a phrase, that one wasn't too hot, I guess.) The Democrats have a very narrow majority and, while it's unlikely a GOP rep would be elected in the first election following a resignation, it's entirely possible (a la Watergate) that if the party is seen as cooperating in the cover up or writing it off, the balance could shift. Unfortunately, we have such a polarized political climate these days that quite often the party loyalty trumps good sense.

HUD staffer busted

I somehow missed this in the news recently. Who is in charge of hiring at HUD, the same guy that lost all the VA files?

Poltical Incorrectness or Necessary Speech?

I feel sorry for the young man mentioned in this article, which is somewhat unnecessarily difficult to read as it is a transcription of the television news story.

I like the unanswerable Constitutional law questions in most situations, though, so I think it merits posting. I wonder how a sign using a distasteful but not-truly-vulgar word like "retard" fits into our Constitutional decisions, especially if it is being used by way of protesting inaction by the authorities. I could research it, but sometimes it's more fun just to post the question and open the floor.

Follow Up: Watertown's Vanwaldick case

The State Commission of Investigation released their report looking into the shooting of a Mr. Dorr by an off-duty Officer Michael Vanwaldick. Especially interesting are comments regarding the apparent well-known domestic incidents, which were seen as fodder for jokes and not criminal activities.

Hiring a lawyer

Just a random thought: if you are hiring a lawyer to do something, let him or her do it. If you want to do it yourself, do it yourself. Do not combine the two.

If, for completely hypothetical example, you want a lawyer to handle your real estate closing, things will probably work a lot smoother if you aren't calling the bank, the insurance company, the title company, etc., to check and see if your lawyer called and what the status is. Especially if the lawyer was doing this as a hypothetical favor to your hypothetical spouse for a next-to-nonexistant hypothetical fee. Hypothetically, of course.

Edited to add: After the frustration passes, I revisit the topic with some calmer thoughts. I'll still leave it up, because I think I can do more than have it just be a rant with an additional paragraph. If you do not think your lawyer is doing an adequate job, speak to him/her about it and see what's up. Maybe he/she isn't getting things done and either needs a reminder or you need to find a new lawyer. It happens, even to the most reliable and professional of attorneys. Occasionally something gets lost or buried or he/she just doesn't know the priority you are assigning to the matter.

At other times, just because you want something done now doesn't mean it can be. Yes, you might call the bank and they'll say, "we're ready to close at any time, just let us know when," but that doesn't mean everything is in place and your lawyer is slacking. All hypothetical of course--this could be a criminal, probate or personal injury matter with its own facts. The bank might say "we're ready" on the phone, but yet (hypothetically) the bank has yet to send any documents to your lawyer because the bank is waiting on a statement from the seller's lawyer who is waiting on a statement from the surveyor, who also needs something from the title company. So when the bank says "we're ready to close as soon as your attorney does X and Y," it doesn't mean your attorney can do X and Y on a Wednesday afternoon when he's leaving town the next day for an out-of-town wedding. Hypothetically, of course.

The Phillips Manhunt & the P-U

The hunt for Ralph Phillips continues. Although it's a local story, I've hestitated to say a lot because there isn't a lot that needs to be said. I have opinions, as a Chautauqua County resident, but none really have any legal backing to merit blogging pontification.

I do enjoy the chance to discuss the journalistic sylings of the Post-Journal, though. This is the newspaper that refused to cover a press conference featuring the mayor of Jamestown and the County Executive, unveiling a charity festival raising money for a program which provides musical education to keep kids off the streets, because a cartoonist in the local alternative paper (which sponsors the fundraiser) referred to it as the "Post-Urinal" in his editorial cartoon.

So, in today's paper, there's a brief story ("special to the P-J", which means it was likely written by a staff reporter as another paper owned by the same chain) discussing an incident between some of Phillips' relatives and the State Police. Tempers flared, people may have been pushed, etc. The reason I mention it, though, is that I learned a new word. Apparently Phillips' daughter alleges she was called a durgatory name by the police. That's not a quote from her--that's a new and special word invented by the P-U reporter and careful, eagle-eyed editors. Is it a combination of "derogatory" and "durrty", which I believe was a Christina Aguilera song?

Booms and hisses

I'm sure there is a legal angle I could take on this, but really I'm just posting the information for anyone else that heard all those really odd noises echoing around Jamestown yesterday.

Security

I completely agree with Mayor Teresi on this one. Not only is the security checkpoint for Jamestown City Court in an entirely inconvenient place (at the main entrance to the municipal building), it also suffers from an overzealous officer on many occasions. It's harder to get in to pay a parking ticket in Jamestown than it is to clear security for most other courts.

Sex Offender Law

The City of Ogdensburg (the only city in St. Lawrence County) is moving forward with a proposed local law that imposes additional requirements on sex offenders.

I have no opinion on the merits of the law itself, but the section regarding "loiter" seems like it's going to be a good hook for First Amendment suits, due to the vagueness.

Text from the WatertownDailyTimes.com:

Sunday, July 09, 2006

The law would also would limit where all sex offenders can loiter and calls for contractors employed by the city to conduct background checks on employees who will be working around children during a project. The city also would conduct background checks on its employees who may work around children.

Attorney Misconduct

I tend to keep a closer watch on stories of official misconduct in other parts of the legal system, for the simple reason that attorney misconduct rarely results in deprivation of Constitutional rights as much as deprivation of dollars. In the interest of being fair to all, though, here's the link to the 4th Department sanctioning decisions website, and here and here are two recent recaps of WNY attorneys as reported by the press.

Kopp conviction upheld

From the Buffalo News, a story that the State court conviction of James Kopp has been upheld. If I remember correctly, a Federal case is also underway.

Want a practice tip out of this sad case? Make sure your client doesn't give an interview in which he confesses to the local paper when you're not present. It can have somewhat of a negative effect on showing reasonable doubt.

Development: Land Use Controversies Put Lawyers' Kids Through College

Facetious title, although not entirely untrue. Amherst, the little cluster of nice houses (Williamsville) and shopping centers (the UB area), is one of those "towns in name" with a six figure population that has never been incorporated into a city. After many years of being receptive to whatever planned development was presented to the board, apparently there has been a sea change in recent months as the town board composition has changed and the available space is running low.

Land use controversies tend to be complex and to drag on forever, in part because there's no "right" answer but instead competing ideologies and predictions. Amherst will make a nice case study for future studies of comprehensive planning and local politics.

Qui Custodiet, V

Thanks to Buffalo Pundit (link to the right), for this little slice of life story out of Buffalo.

Speeding Ticket Excuses

Stolen from Albany Lawyer, who does a lot of practice in this area: speeding ticket excuses. To summarize, they don't work.

Qui Custodiet the other side of the bench?

I'm never really convinced a censure is all that punishing of a sanction. Of course, the grievance committee hasn't summoned me to Rochester yet. At this point, though, I tend to favor stricter sanctions for violating criminal laws for lawyers and judges, especially if done under the color of authority--harassing telephone calls are "aggravated harassment" under the Penal Law, even if only one call is made. A letter in the permanent file seems somewhat lacking when you or I (hypothetically) would face a fine and potential jail time for committing an A misdemeanor.

ETA: Federalitis

Gay Marriage Decision

The NY Court of Appeals (our oddly named top state court) came down with a decision on a gay marriage question recently. The decision is linked here, but I'll be honest that I haven't waded through the 70 page pdf file yet.

The short answer is the NY court said "no gay marriage," but it's a lot more complicated than that. That's just the fevered outcry you'll hear from whichever partisan group is applauding/decrying the decision. What (from a brief skim) it appears to be is that the question posed to the court was "does the NY Constitution require equal treatment of same sex couples seeking to marry?," to which the court said, again paraphrasing, "the Constitution doesn't say so and it's a matter for the legislature."

I'm usually aggravated by press coverage of any monumental court decision, or at least the highly publicized ones that might not be monumental when read carefully. Typically, an appellate court is presented with various questions which it is asked to resolve. "Is it a violation of the prohibition against warrantless search to scan a house from the street with an infrared camera," is one such question, or "can one state have sole regulatory authority over a vessel traveling between two states?" The courts are rarely, if ever, presented with a "is gay marriage legal?" sort of question, because that's not how the law works, yet that's what tends to be reported in the mainstream press. The real questions, and answers, are a lot more nuanced and shaded with grey.

Debt Collection

Interesting story about some of the hardball tactics taken by debt collection agencies. From my experience working in the field, I'm not really surprised. Even locally, we have some practices that seem to be in violation of ethics and the Fair Debt Collection Practices Act. For example, one local attorney sends out what appears to be a summons and complaint, except it's marked only with the office file number and has never been commenced in the court. The fear of litigation expenses and attorney's fees often has a huge effect on unsophisticated debtors, who pay rather than face a court. Which isn't a problem in (what the industry association rep describes as a "small minority") the cases where it's a scammer running up a debt he/she never intended to pay. It's more of a problem where the debtor doesn't have the money to spare or lives on a fixed income and may be eligible to have the debt forgiven or reduced. Another local attorney sends out letters which rely heavily on "the shame and public embarrassment" of a "publicly known" judgment as a debtor as a reason to pay ASAP.

I'm not in favor of anyone skipping out on legitimate debts. As in every situation, though, I see the rules as pretty much the boundaries to be followed. The FDCPA says no service of legal-looking papers that aren't actual pleadings, yet it continues. Harassing phone calls, day and night, continue even after orders to cease, as do calls to friends and relatives. Recently, I dealt with a case where the action for a deficiency judgment was being brought nearly two years after the statute of limitations had run. Anyone who could read the UCC (not a simple task, admittedly) or log on to Lexis could tell the suit was barred--but then again, the average debtor doesn't have those resources or access to an attorney, and coughs up some money, reaffirming the entire debt, on a (by definition) frivolous lawsuit.