Local Job Opening

It's rare that any job opening in the Chautauqua region is actually publicly posted instead of just being filled by word of mouth, so the Jamestown Lawyer presents one of the few seen locally as a public service.

Legal Services Attorney

Illegal Immigrants

Hazelton, PA was one of the originators of a very tough anti-illegal immigrant law. In a 206-page opinion, the law was struck down by a US District Court. I have yet to read any more than this article to understand the ruling.

Troubling, to me, was the idea of renter registration. That has an aura of class-based treatment wherein those who can afford houses are given one treatment under the law, as opposed to those who rent. It also seems flawed as, just as a homeowner can have anyone stay with him/her, the registered renter is legally entitled to have others in the apartment.

In theory, though, the law has some unique approaches which may have been valuable. Fining landlords, for example, cuts off the economic impetus found in Jamestown to house and employ illegals. As with many issues, though, a holistic combination of legislation and community involvement/education is going to be necessary, imho, given the easily-rattled fault lines of race and economics involved in such a law.

JPD, CPLR, CS and ACRONYMS

Today's Post-Journal (or in keeping with the title, P-J) has a follow up article on the ongoing dismissal proceedings being brought by the City/JPD against Sgt. Smeraldo. My uninformed opinion from reading the article is that I can see it going either way. Of course, the Jamestown Lawyer is not privy to all of what has been offered and is merely a spectator. The mixed message of the officer being highly rated in evaluations, yet criticized in the comments, seems like a legal morass that the finder of fact will need to sort out. For instance, are all officers given comments? Are all officers given the standard form? If Servis, Gadra and Rader, for example (and completely namedropping in hopes of avoiding that next ticket) have "above average" ratings but no comments, it could be seen as diluting the value of the comment section on Mr. Smeraldo as "optional" and not part of the official evaluation.

The article in the P-J reports the proceeding as an "Article 75" proceeding. Usually when "article" is used, my mind first goes to the CPLR, which is the Civil Practice Law and Rules. All that lawyerly stuff about timelines for serving papers and how they have to be delivered and proper notice format? Most of that is CPLR stuff. Article 75 of the CPLR concerns arbitration, which may be relevant in this case as Mr. Rinaldo, the hearing officer, is identified as a "Buffalo arbitrator." Arbitration, as frequently discussed in sports, is when a decision is rendered by a "hired judge." Instead of filing an action, getting on the calendar, etc., the parties will agree in advance to submit evidence and appear before a neutral party. This person has authority via the parties agreeing to appear. Some arbitration is binding, like an order of the court, where other non-binding arbitration can still be followed with a court case if a party is entirely unsatisfied by the decision.

However, Section 75 of the Civil Service Law is "Removal and other disciplinary action." This section identifies the various classes of public employees to which it applies and gives the procedure for notice and a deadline for starting the action. This section also seems relevant to the ongoing matter.

Whatever the nature of the case, I would expect an appeal to follow (if the rules of arbitration allow) based on the admissibility of evidence that was allowed/barred.

Advocating vs. Paternalism

Given that my client base is a little different than some, I may deal with the title issue a bit more. What does one do when the client has an interest that, in one's professional opinion, goes counter to their interests? Multiple use of the same word was intentional there, because in my experience some clients don't differentiate between their right to a hearing and the result of the hearing.

Me: "In looking at the file, I'm pretty sure the judge will give six months
in county jail with five years probation."
Client: "Yeah, he might, but he might not once we tell him how I love kids
and puppies."
Me: "Well, in my experience, having been here on similar charges before, I
know that's the standard sentence. If you take it to trial, you've already
admitted you did it and there's a signed confession that you already told the
court you willingly gave."
Client: "Sure, but that cooperation will work in my favor when you tell the
judge about it!"

Ok, so the Jamestown Lawyer made that exchange up. I actually deal more with this problem in civil law. It isn't the clients with the truly hopeless cases. Most often they are happy for someone to listen to them and explain what all the "herewiths" and "nothwithstandings" on the papers mean. It's the people with the kernel of a case. The ones being evicted for $1,000 in arrears who probably legitimately owe $750 but think the error means they ought to owe $0.

I suppose the part that bothers the Jamestown Lawyer, and the reason for the post to seek advice from practitioners, is that last hypothetical sentence. Whether it is an eviction, a criminal case or an admin hearing, the clients with marginal cases always seem to think that the reason they didn't prevail is bad lawyering. It gets frustrating after a bit.

Hence the desire to impose results on a client. To tell the client that this is how it is and there is no choice. It is unethical to step over that line and dictate to the client without offering input and information. It's also very attractive as an option when the client has repeatedly proven he/she, while competent in the legal sense, can't actually make an informed decision. These are the ones that take a frank discussion of litigation options and listen to only the parts where they win and retire in glorious riches.

So...where's the line? Layers, what do you do? Nonlawyers, what do you think?

Mental Health in the CJ System

Jamestown will soon be one of the few cities in New York offering a "mental health court", similar to the existing "drug court" and other alternative-to-incarceration programs. An article on the Niagara County version is available here.

In related news, the Governor and legislators have been working on the issue of the treatment of seriously mentally ill inmates. A recent article from the downstate Journal News discussees the solitary confinement compromise recently reached by the state leaders.

Con Law: One man, one vote. Sometimes.

An interesting story out of the Plattsburgh newspaper today mentions Chautauqua Co. It is (hopefully) common knowledge that legislative districts are drawn up by dividing geography by the number of people. If the county has, to make up numbers, 100,000 people and 10 districts, then lines are required to be drawn in such a way that each district has roughly 10,000 people. Or so the simple version says--case law and various statutes make it a shade more complex.

The issue addressed in the story, fairly common each ten years in the state following the census when districts are redrawn, is how to count certain populations. Persons in institutions of one sort or another are the most common dispute. In short, if 10,000 people from Queens are incarcerated in St. Lawrence County, where do you count them? Prisons are the point of the article, but long term care facilities also raise the issue, and in some places colleges have been in question.

The problem with prisons (and certain long term facilities) is that the residents can't vote. The result is a disparity in the power of each person's vote. A district of 10,000 people may actually contain 5,000 voters, for example. When compared to another district of 10,000 people, each of those 5,000 is exercising more influence with their vote.

Round numbers aside, this has been a serious issue is in state redistricting for years. Prisons were championed by the late Sen. Stafford as a northern New York economic development tool. When you watch "Law and Order" and someone cops a deal rather than going "upstate", they are referring to Gouverneur or Malone and Dannemora, in St. L., Franklin and Essex Counties, respectively. The State Senate majority, more than the Assembly, could lose several seats if prisoners were not counted as residents of upstate counties.

Best of Chautauqua II

One of the other bloggers, Galoot, recognized by the Word weighs in on the "Best of..." designation with good humor.

Random Housing Law Moment

Working in the world of housing and landlord/tenant, I quite often find things "everyone knows" that aren't entirely true. Today I'll address Real Property Law 235-f because I see many leases which contain clauses that are not in compliance.

The various sections following RPL 235 contain a large number of provisions governing ll/t business. Since they aren't commonly seen, even by practitioners, these rules can get lost in the shuffle. 235-f is commonly known as the "roommate law." Although it contains numerous subsections, (3) is one that shows the operation of the law:

Any lease or rental agreement for residential premises entered into by one
tenant shall be construed to permit occupancy by the tenant, immediate family of
the tenant, one additional occupant, and dependent children of the occupant
provided that the tenant or the tenant's spouse occupies the premises as his
primary residence.

Other sections discuss what happens when more than one tenant is on the lease. More important, perhaps, is #7, which states that any lease clause which operates to restrict tenancy in violation of the law is void.

In other words: clauses which attach extra rent per person or limit residency to a certain number of people are invalid. The limit on residents is the health and safety codes which establish the people-per-square-foot limits. A tenant can legally have a spouse or significant other move in without any change in the rent, for example.

Court of Appeals on Landlord/Tenant law

It's fairly rare that an issue of landlord/tenant law climbs all the way to the top state court. There are a few reasons for this, or at least a few that I can speculate are reasons from my own practice. One of the biggest is probably "mootness." By the time a case crawls slowly toward the top of the heap, the facts of the situation have changed. If a person has moved from a building, or it has burnt down, etc., the right of the person to claim possession no longer really is a legal issue. A court isn't going to waste time to decide something when the decision really won't have an effect on the parties.

Second, appeals are generally time consuming and expensive. Point 2(a) would then be that, in most eviction situations, neither party is fabulously wealthy and able to spend thousands of dollars to fight about a few hundred in rent. Point 2(b) is that, in most ll/t situations, there's an extra layer of appeal before the top court and taking it to the top is extra-lengthy and costly. Evictions are heard, usually, in the justice courts and city courts. Appeals from these courts go first to county court. Appeals from county court go to the Appellate Division. Appeals from the AD go to the Court of Appeals in Albany. This is different than the "normal" (if anything can ever said to be, of course, but speaking mainly of the way we learn it in civics classes and poli sci) procedure where a case goes from county/Supreme to AD to CoA.

Third, tying into 2(a), is the involvement of stakeholder groups. Cases out of eviction court rarely go all the way to the top unless various groups see that the decision will have an overarching effect. Some wealthy landlord corporations are probably willing to litigate the issue to the end, since it will impact on hundreds or thousands of units. The tenant side is, most often, represented by legal services-type offices. Very few people who can afford a private attorney end up in eviction court under normal circumstances. Such offices are restricted in the cases they can take on appeal, due to limited funds and resources. Additionally, and actually the third point I wanted to make as it concerns both sides, is the concern of binding precedent. The higher the court, the larger the area of the state that is bound by the decision. There's always a risk when one appeals. A decision you're not happy with could be tossed, but it could also be upheld, or in some cases, made even worse (from your POV). From conversations with many lawyers in WNY, it seems that sometimes, taking a long view, it's easier to swallow a bad decision and move to the next fight than push the issue and end up having all cases decided in the "bad" way by operation of law.

The recent decision, as reported by the NY Times in brief, is one of the rare ones that fills all the necessary holes. It is a major issue that has appeal to both ll/t stakeholder groups as something that needs to be settled by a court, justifying the time and expense because of the sheer importance of the issue.

Welcome, via The Word's Best of Chautauqua

Earlier today I was pleased to see this blog listed as one of the best in Chautauqua County by the staff of the Chautauqua Region Word. If you follow the link, you'll be able to view a pdf of the most recent issue. You can also pick up the paper copy at many fine local businesses. Kudos as well to In Java, Literally, Mind of Makkaio, Galoot's Hoot Page and Preppy Girl's Guide.

It is a bit ironic as recently I was considering closing up shop. Since there may be an influx of readers for a day or three, I thought I should do a brief introduction.

I'm a lawyer. In Jamestown. (Brief enough?)

What happens here is legal issues that catch my eye, especially local ones where there's enough decent press coverage to provide a link, get discussed. I try to provide some legal insight and analysis. I do it because I like to think/talk/write about the law and try to put it into layman's terms. I occasionally dip into politics as well, but I try to limit that to avoid partisan bickering.

I will answer questions from the floor or discuss topics of interest to readers, but I'm not going to give legal advice or take your case.

I hope a few people make a return visit to see what is happening locally/legally and participate.

Con Law: Mohawk Thanksgiving Address

Back when the Jamestown Lawyer was also the Jamestown Community College Instructor teaching a constitutional law class, I brought a newly filed case to my students' attention. Salmon River Central School, on the US/Canada border in Franklin County, is roughly 2/3 Mohawk. The issue came up of whether the traditional Mohawk Thanksgiving Address, sometimes identified as a "blessing," could properly be allowed during school hours. The school district pulled the PA system version, allowing students to gather in the auditorium if they should desire. A number of Mohawk residents sued, alleging a cultural and not a religious basis.

Few topics are as divisive as religion. Few areas are as prone to division as the North Country, when the issue is whites/Natives and the perception that one group or the other is getting special treatment.

Some of those attitudes can be seen in the recent Albany Times Union article discussing the dismissal of the suit in favor of the school district. As this was District Court, the potential for appeal will likely be the subject of a later article.

The Supremes

The NY Times has a wrapup of the recently closed Supreme Court session. As one might expect, they find a rightward tilt in how the court decided cases. As always, I'm interested in anything that discusses the means and methods behind legal decisions.