Jamestown Lawyer

LL/T

2008-07-15T07:19:00.002-04:00

The Post-Journal again reports on attempts to develop new landlord/tenant regulations in the City of Jamestown.

The Jamestown Lawyer would like to highlight the comments of Councilman Rabb. I would never dispute that there are bad tenants. In fact, I have stories that would probably curl your hair. However, the missing piece in these discussions seems to be that Jamestown has some (very vocal and REIA-approved) slumlords who do not maintain properties and are quick to claim poverty due to tenants at every instance. As long as their hyperbole is taken at face value, no constructive changes in the condition of local housing will be made.

Media Watch

2008-07-07T11:13:00.002-04:00

Post-Journal headline: Rising Prices Drive Up Welfare Fraud.

Actual content of article: Rising Prices May Increase Fraud and This Is How DSS Deals With It On A Regular Basis.

Was the PJ so pressed for space that they couldn't insert a "may" in the headline?
Or was it reflecting the editorial policies of the paper that seek to repeal the New Deal?

I report. You decide.

Endangering Child Welfare

2008-06-16T03:27:00.002-04:00

In the northern stretches of the Fourth Department, a Jefferson County city court judge has recently issued a couple of rulings regarding the sealing of records in EWOC cases. By keeping the records open, even if the plea was to a lesser charge, his goal is to maintain a public record of the original offense as a warning against entrusting children to these persons.

An admirable goal, but the cynical and/or Constitutional rights obsessed amongst us might question whether a plea to another charge should be treated as a plea to the unproven/unadmitted Endangering the Welfare charge.

Public Defenders

2008-06-07T08:30:00.002-04:00

The National Legal Aid and DefenderAssociation has released (in 2007 and 2008) fairly in-depth "report cards" of the public defender system in various NY counties. The links are available at the New York State Defenders Association, nysda.org.

Check out Cattaragus County here. One note, though: the magistrate's undertaking request as discussed on page one has been challenged and ended. Unfortunately, the magistrate is still employed by the court system.

Update on Tampering Case

2008-05-29T07:58:00.002-04:00

A few posts back, there was a link to a story regarding a JPD officer spitting into seized drugs, apparently to increase the weight and raise the level of offense. Today's Post-Journal contains another story on the matter. New charges have been filed against the former officer.

Although a secondary part of the story, the matter of a confidentiality agreement and a leak seems like the sort of thing that will continue to be in the public eye and perhaps the public interest.

LL/T law

2008-05-22T05:18:00.003-04:00

The City Council of Jamestown, as reported by the Post-Journal earlier in the week, is starting to consider some new landlord and tenant laws. The first step in this process is reviewing a report regarding rules and regs in other places.

Family Court

2008-05-06T13:12:00.002-04:00

According to the Post-Journal, one of the judicial seats in the county will be subject to a contested race this year. Phil Cala has announced he plans to run for Family Court. Incumbent Judith Claire has also indicated she will run to retain the Judge position.

Thoughts? Comments?

Sales Tax & Senecas

2008-05-06T12:58:00.003-04:00

The Post-Journal reports today that the Appellate Division (The Jamestown Lawyer guesses Fourth Department, but it's not specified in the article) ruled the State cannot collect sales taxes on non-Native reservation purchases.

Being a court decision, of course, the very broad and final-sounding sentence above is not entirely true, although that's what people are reacting to.

What the court actually ruled was that the Supreme Court ruled correctly that, under the existing tax law, the proper steps were not taken to create the necessary mechanism to collect taxes. The law required certain steps to exempt Native purchasers and clarify the process, which were never done.

Based on the failure to follow process, the State can't collect taxes. It isn't a final decision on "ever or never," although that's how the pundits spin such topics to get radio listeners and editorial readers up in arms.

Sewer Service

2008-04-30T07:44:00.002-04:00

Several times in my practice, the Jamestown Lawyer has been told, informally, that it's a waste to challenge an affidavit of service. Why would someone who makes a career of serving papers lie about it, I've been asked.

Today's Post-Journal doesn't answer that question, but does highlight one process server who was cashing in without doing the work.

Judicial Pay

2008-04-13T04:29:00.002-04:00

Linked from the NY Sun is some coverage of Judge Kaye's recent lawsuit regarding judicial pay.

The Jamestown Lawyer has no strong feelings one way or the other on the lawsuit or the underlying question. One issue that does stay with me is the way the current and/or requested salaries are frequently highlighted. Six-figure salaries are something that many of us only dream of, even in the legal profession. That doesn't change the fact that, for many senior lawyers with the skills to be capable judges, the current judicial salary is a pay cut. Nor does it change the fact that new lawyers in some cities earn more than judges. There's a layer of perspective that's missing from hyped-up headlines about earnings. The Jamestown Lawyer has no views on what judges should earn, but wishes the issue were publicized with all the facts.

Piper W.

2008-03-31T14:21:00.002-04:00

Piper W., the daughter of Fredonia attorney Lydia Evans, is currently awaiting a liver transplant. Information on her disease and various fundraisers/donation ideas is here. Please check it out and assist as you are able.

JPD in the news

2008-03-10T15:45:00.003-04:00

The Jamestown Police Department has many upstanding, honest officers.

Unfortunately, something in the culture of the force seems to lead more toward this sort of incident than positive press.

Utility Deposit

2008-03-10T09:23:00.002-04:00

This post from the blog of the Public Utility Law Project makes me question the Jamestown BPU's deposit requirement.

On a lighter note

2008-03-04T13:23:00.003-05:00

Denver Nuggets coach George Karl might want to look into an attorney employing more subtle means. Link to Deadspin.

Condolences

2008-03-03T22:50:00.002-05:00

The Jamestown Lawyer would like to extend deepest sympathies to the family, friends and colleagues of Jan Walker, Esq., managing attorney for the Jamestown office of Southern Tier Legal Services.

Labor dispute criminal charges

2008-02-27T10:27:00.002-05:00

Law.com has covered an interesting case from downstate NY. An attorney has been charged, along with 10 nurses, for criminal conspiracy to resign en masse, which according to the DA endangered the lives of disabled patients. Although the State Ed Department, which oversees the nurses, found no liability, the DA presented the case to the grand jury. The question is apparently whether the attorney encouraged or advised the nurses to quit.

Labor lawyers seem to be watching this case closely.

Liens

2008-02-17T08:20:00.002-05:00

Today's Post-Journal runs a short piece on the recent spate of lien notices sent out by the BPU to property owners. According to local law. unpaid utility bills become a lien on the property and, in some cases, can be transferred onto the property tax bill.

The Jamestown Lawyer is not certain which case BPU counsel Mr. Wright is referring to, but at one point the Jamestown Lawyer, not speaking in the third person, had an informal BPU hearing regarding this issue. The city had issued a tax certificate showing no debt and then, years later, the previous owner's lien showed up and the BPU attempted to collect.

With all your spare time...

2008-01-24T10:00:00.001-05:00

Lawyers, especially in private practice, tend to be overscheduled and stretched thin. That means that this suggestion will be starting from a bad position before it gains traction, sort of like most cars on the Washington Street hill here in Jamestown.

Still, especially if you're a relatively new lawyer: those CLE books that you flip through and then put on a shelf? Take a look at them again. Every time I happen to open one to look something up, I'm amazed by the tips and knowledge that I didn't know was there. It is especially true in areas where the Jamestown Lawyer does not often practice, but even in the main practice areas, I can find something new.

As I said, this is especially true for new lawyers. Much of what I learned in CLEs right after admission lacked a lot of context. Looking back a few years down the road, those books and handouts carry a whole new meaning.

Lawyers make mistakes.

2008-01-18T13:02:00.000-05:00

This is the footwear the Jamestown Lawyer has been wearing for six hours now, including an appearance in a very crowded city court.

Attorney convicted.

2008-01-16T07:35:00.000-05:00

Ogdensburg attorney reaches plea arrangement resulting in 33 months prison time and automatic loss of law license.

Brian K. Goolden, 38, admitted in U.S. District Court, Syracuse, that he defrauded 93-year-old James Gilmore, Naples Fla., a legally blind former Morristown businessman, by drafting a trust that was supposed to preserve Mr. Gilmore's money. Instead, the trust gave Mr. Goolden unregulated control and unrestricted access to all of the trust's assets during Mr. Gilmore's lifetime and the right to take anything left in the trust after his death.

Quote via Watertown Daily Times.

Law clerk charged with felony mischief.

2008-01-11T08:14:00.000-05:00

Two quick points about this article from the Post-Standard, regarding what appears to be a "parking lot rage" incident involving a court employee.

First, the Jamestown Lawyer believes strongly in the presumption of innocence in criminal cases. However, the Jamestown Lawyer also remembers quite a bit from law school about ethical conflicts and the importance of avoiding any situation where there is the appearance of conflict. The twain don't seem to be meeting in this case. The character and impartiality of the court attorney seem called into question, which would make me think about motions to change venue or requesting that judge recuse himself.

Second, $250 is nothing to sneeze at. That said, the Jamestown Lawyer believes that is far too low a limit for a felony charge in an automobile incident.

As an unrelated matter, I'm still trying to move this near-complete set of McKinney's Laws of New York. Leave a message or email the address from the previous post if you have an interest and I'll respond ASAP. The cost of updating this series would be a fraction of a whole new set.

McKinney's still for sale

2008-01-08T08:10:00.000-05:00

It might help if I gave contact information, though.

Write me at injudicious [at] stny.rr.com if you are interested.
All offers considered.

Slightly Dated McKinney's for Sale

2008-01-05T12:19:00.000-05:00

I have a near-complete set of McKinney's (missing a couple volumes, a couple destroyed by water damage but still included) that I am offering for sale. Missing is Education Law 390-900 and damaged are SCPA 1701-2200 and 2201-end. That may be revised slightly as I pull items from the shelf.

The caveat is that they haven't been updated since 2004, so there would be an investment to bring them current. Alternately, they make a great backdrop for your television commercials. Cellino & Barnes only have six or eight volumes in their ads...you could have an entire wall!

I'll even deliver them to your home/office, provided you are in the Jamestown area. I'm moving and Westlaw has completely replaced the books in my practice. Just leave your name or some contact information in the comment section. If you want to make an offer, feel free...maybe we can get an auction going in the comments.

Sale ends January 12, unless there's minimal interest. So act fast.

Music

2008-01-02T03:55:00.000-05:00

In an effort to crack down on illegally shared music, the Recording Industry Association of America (RIAA) has announced it will now start suing anyone who buys a CD, in the hopes that preventing CD sales will prevent file swapping. The industry hopes that preventing the sale of CDs will reverse the longstanding trend of decreases in CD sales.

All right, that's not true. That's the Jamestown Lawyer making something up given the sheer ridiculousness of the latest RIAA position on shared music, as chronicled in this recent Washington Post article.

I can understand their legal opinion on downloaded music, if not endorsing their tactics. Thousands of lawsuits have been filed against various people for making music available online. What is of most concern to the Jamestown Lawyer is the idea of trying to fix a broken system by scare tactics and seeking unrecoverable damages.

In this article, it seems the RIAA contends that even making a copy of a song one already legally owns is violating copyright, but (and their magnamity is breathtaking) they probably won't start suing over that.

Lawyers and Free Speech

2007-12-20T14:23:00.000-05:00

An indication of why the blog traffic has slowed here can be gleaned from this article from Law.com, regarding a FL attorney who made less-than-politic comments about a judge on a blog.

End of the Year

2007-12-19T15:12:00.000-05:00

Happy holidays to all, whichever you celebrate or don't, and good wishes for the new year.

Posting will resume...eventually. Perhaps.

What is an adult?

2007-12-05T07:58:00.000-05:00

News outlets that favor the salacious were quick to run with news on Debra Lafave, the former teacher convicted a couple years back of having a sexual relationship with a minor student. As reported in the St. Petersburg, FL, paper, Ms. Lafave was picked up on a violation warrant because she had unsupervised conversations with a 17 year old coworker.

This case, behind all the flash and sensationalism, hints at a broader problem in criminal justice, as posed in the title line to this post. The law, and Ms. Lafave's parole conditions, establish that anyone below the age of majority is a "minor," "infant" or "child." Unless, of course, such person commits a serious crime, and then he/she is suddenly treated as an "adult" under the law. Meanwhile, many non-felonious 15-18 (or 21) year olds are working alongside adults, driving alongside adults, having intimate relationships (hopefully not with adults), and otherwise living lives that are indistinguishable but for the age of the person.

The Jamestown Lawyer doesn't have an idea on how to meld the sociology of today's minors with the established traditions of the law. It is clear that children are a vulnerable population and deserving of protection under the law. A bright line standard may be the most efficient way to do so, but in cases like the recently freed G. Wilson in Georgia or perhaps (if the facts support the original allegations) Ms. Lafave, the bright line seems blurred by an outdated vision of childhood.

Treatment Courts

2007-11-20T06:40:00.001-05:00

It has been around long enough that "drug court" is just an accepted part of the criminal justice system. Nonviolent offenders with substance abuse issues are given an opportunity to avoid incarceration by completing a rigorous combination of counseling, treatment, staying out of further trouble, etc.

Jamestown unveiled the newest local treatment court on Monday, the Mental Health Court. The basic idea is quite similar: a reduction in the prison population and a more effective rehabilitation for people whose criminal acts are part of a larger problem. The goal, in the Jamestown Lawyer's understanding, is to deal with the underlying issue, preventing recidivism and getting the defendant necessary help. The Post-Journal coverage is linked here. (With one correction: the attorney on the right in the photo is "Robert Liebers" of Burgett & Robbins, not "Jeff".)

Something Positive

2007-11-16T07:32:00.000-05:00

Well, the Jamestown Lawyer doesn't know how she does, but at least it's a non-critical post regarding Justice Courts.

Town of Ellicott Judge Marilyn Gerace will be on Wheel of Fortune tonight, November 16, locally at 7pm on the ABC affiliate. The Post-Journal story is here.

If the WGA strike continues and the networks are looking for more reality programming, I'd like to suggest bringing Judge Gerace back for "Wheel of Justice"....I don't know what it will be about, but the Jamestown Lawyer likes the title too much to let it go. That's about as much thought as the average producer puts into a show, in my opinion.

Courts

2007-11-08T14:47:00.000-05:00

A brief post. No guarantees any more will follow it.

There is an effort underway to improve the Justice Court system. Judicial districts are hiring persons, preferably former Justice Court judges, to serve as resources on administrative and legal issues.

My thought: that won't be enough. There's a certain attraction to the tradition of local lay judges that know the community and dispense a common-sense justice. There, to me, is even more attraction to courts that are open regular hours and staffed by professional persons.

Perhaps one of the changes required of the Justice Courts should be like the policy when I was a college instructor: mandatory office hours. On one day, at least two days from the weekly court day, the judge or clerk must be in the office. If nothing else, it's a time to do paperwork. It is somehow sublimely ridiculous that we have courts that are "open" at the discretion of a judge, who shows up to do everything from reading the mail to hearing cases one evening a week, then puts it on the back burner until that next evening appearance. Justice and Monday Night Football should not have the same schedule.

A long strange trip

2007-10-21T22:36:00.000-04:00

It's been fun, but it's coming to an end. By the end of the month, I'll be closing up shop here at the Jamestown Lawyer. Thanks for all the feedback and commentary over the past however-long-it's-been, but time commitments don't let me follow through as I'd like. Rather than doing a bad job, I'd rather just haul in the sails and make room for new bloggers.

Arraigned, English.

2007-10-15T07:59:00.000-04:00

As a brief follow up to a building codes-meets-First Amendment case: months later, the St. Lawrence County town court in question found a German/Penn. Dutch translator and the Amish men have been arraigned.

From Saturday's Watertown Daily Times:

Amish men are arraigned with help of translator
Saturday, October 13, 2007
MORRISTOWN — Code violation cases against eight Amish men took a small step Friday.
They were arraigned with the help of an Ogdensburg woman who translated German and its antiquated dialect, Pennsylvania Dutch, which the religious group uses. Town Judge James T. Phillips Jr. adjourned their cases until Jan. 11, giving Assistant St. Lawrence County Public Defender Steven G. Ballan time to prepare motions.

Judge Phillips appointed Mr. Ballan to represent the men.
They are accused of building and moving homes without permits. They do not deny the charges, but they say codes go against their religious beliefs.

64 Arrests

2007-10-11T08:30:00.000-04:00

Presented more for quirkyness than actual social or legal commentary: 64 arrested at Ralph Wilson Stadium Monday night, twice the usual game amount according the authorities quoted in the Buffalo News.

Lawyers in Debt

2007-10-01T07:57:00.000-04:00

An article from the Seattle paper is about college costs in general, but I find it very appropriate for sharing. As the costs of college increase annually, it becomes harder for students to ever shake the debt from their education. Salaries in public interest fields or even in private practice outside of major metrolpolitan areas don't allow timely repayment and escape from the debt.

Repeating, Reposting

2007-09-24T14:27:00.000-04:00

Some time ago, in my landlord/tenant articles, the Jamestown Lawyer believes something was written about the timeline of an eviction proceeding. Needless to say, not everyone is an avid reader and takes my words to heart, so I would like to repeat something:

Should the court issue a warrant of eviction, the tenant has three days following service of the warrant to vacate or be removed.

Court signs, three days. Those four words are the most relevant bits. Perhaps "service" is one to be examined in another post, but that's usually done correctly locally in my experience.

I post this because there seems to be a common misconception that it is "three days, except ___" where the blank is filled by the tenant's situation of choice. There is no provision other than three days when one is talking rentals outside of a mobile home park. Nothing that can fill that blank will alter the language of the law.

That said, the court does have certain discretion to extend the timeline. Tenants who are actively trying to move, who have family situations that complicate things, that are disabled, etc., all have grounds to ask the court for an extension. However, there is no provision of the Real Property Actions and Proceedings Law that says because you have a small child at home or are in a wheelchair or anything else that you're automatically granted 30 days to move.

DHCR Woes

2007-09-20T08:56:00.000-04:00

The NY Times reports on a recent Inspector General report concerning widespread mismanagement of subsidized housing in NYC. The Department of Housing and Community Renewal has been found to have bungled oversight and management of a wide variety of housing complexes.

This article is only tangentially related to Jamestown, but the Jamestown Lawyer is concerned in reading it. DHCR doesn't only operate and oversee subsidized housing in NYC. It's also the agency that enforces mobile home park laws. If the agency track record is poor in an area where they face massive scrutiny and frequent investigation, what are the chances that complaints and policies are being properly administered in WNY?

Illegal Eviction

2007-09-18T12:45:00.000-04:00

A Second Department case that will no doubt be oft-cited in the near future:

Schehr v McEvoy
2007 NY Slip Op 06659Decided on September 11, 2007
Appellate Division, Second Department

STEPHEN G. CRANE, J.P. ; DAVID S. RITTER; MARK C. DILLON; EDWARD D. CARNI, JJ.
2006-01733 (Index No. 28881/02)
Wagner, Doman & Leto, P.C., Mineola, N.Y. (Colin Rathje of counsel), for appellants.
Russo & Pedranghelu, Hicksville, N.Y. (Warren W. Quaid of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for wrongful eviction and conversion, the defendants Michael McEvoy and Empire State Properties, Inc., appeal from a judgment of the Supreme Court, Suffolk County (Berler, J.), entered January 10, 2006, which, upon granting the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upon an order of the same court dated October 6, 2005, granting their motion to set aside the award of punitive damages only to the extent of reducing the award from the sum of $200,000 to the sum of $100,000 upon the plaintiff's stipulation, is in favor of the plaintiff and against them in the total sum of $129,900.

ORDERED that the judgment is affirmed, with costs.

At trial the plaintiff established his prima facie case and the defendants did not put on a case. Thereafter, the trial court granted the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability. "A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the non-moving party" (Szczerbiak v Pilat, 90 NY2d 553, 556; cf. Tapia v Dattco, Inc., 32 AD3d 842, 844). In considering the motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light [*2]most favorable to the nonmovant" (Hand v Field, 15 AD3d 542, 543; see Szczerbiak v Pilat, 90 NY2d at 556, supra). Here, as the appellants failed to present an affirmative case to contradict the plaintiff's prima facie evidence, the Supreme Court properly granted the plaintiff's motion for judgment as a matter of law on the issue of liability.

The award of punitive damages, as reduced by the Supreme Court upon the plaintiff's stipulation, was not constitutionally excessive (see Deters v Equifax Credit Information Services, Inc., 202 F3d 1262, 1272; cf. Fournier v Services For The Underserved, 191 Misc. 2d 290, 292; see generally State Farm Mut. Auto. Ins. Co. v Campbell, 538 US 408, 425, cert denied 543 US 874; BMW of North America, Inc. v Gore, 517 US 559) and was certainly warranted due to the "high degree of moral turpitude" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 479) exhibited by Patrick McEvoy, an agent of the defendant Empire State Properties, Inc.
The appellants failed to preserve for appellate review their contention that the Supreme Court charged the jury with an incorrect burden of proof regarding punitive damages (cf. Prote Contr. Co. v Board of Educ. of City of N.Y., 276 AD2d 309).

The appellants' remaining contention that the punitive damages award should not be applied to the defendant Michael McEvoy is also unpreserved for appellate review and is being raised for the first time on appeal. We do not consider it (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 571). CRANE, J.P., RITTER, DILLON and CARNI, JJ., concur.

Primary

2007-09-18T09:06:00.001-04:00

Across the county, there are various primaries being held today for party nominations in the general elections.

Here in the city of Jamestown, there's a Democratic Primary between Mayor Samuel Teresi and retired City Clerk Shirley Sanfillipo, who is already running on the GOP line. Polls are open noon until 9 pm.

Full information and results, after the polls close, can be found at VoteChautauqua.com, the official site of the Board of Elections.

A MCLE note for lawyers

2007-09-12T09:21:00.000-04:00

The court system has released some relatively minor changes to the rules regarding mandatory continuing legal education (MCLE). The first is that "substance abuse" issues have been swapped out of Law Practice Management and into Ethics/Professionalism.

The changes more likely to require your attention are new sections concerning which programs qualify for credit. Any program featuring a disbarred attorney as an instructor is no longer eligible for credit. Additionally, to be eligible for credit, a program must feature the active participation of an attorney (in good standing) instructor.

This last one is the one most likely to have an impact, due to cross-registering programs that serve, for example, financial planners or CPAs but also offer attorney credit. The Jamestown Lawyer will wait patiently to see if there are any effects. On one hand, I'm concerned at "lawyer only" regulations because we stand a good chance of monopolizing ourselves out of business. The attorney no longer has an elevated standing in our society and protectionism isn't going to reverse that, no matter how much I wish it could. At the same time, the new rule is completely logical, as I've attended some programs that were basically marketing seminars for the sponsor without any real legal education content.

Downtown

2007-09-10T09:33:00.000-04:00

This post isn't directly law-related, but it is Jamestown-related.
Following on the Local Music Showcase weekend, which reportedly was a big draw to downtown on Saturday night, today's Post-Journal contained further news on the state of downtown. A city council committee meets tonight to discuss a grant proposal and other business related to restoration of vacant and crumbling downtown buildings.

Campaigns and Felonies

2007-08-31T09:22:00.000-04:00

As a former political science instructor, the Jamestown Lawyer is saddened by the current tactics on display in the mayoral race.

Regional: Buffalo's Poverty

2007-08-31T09:14:00.000-04:00

Jamestown, situated between Erie and Buffalo and on main interstates reaching other large cities, doesn't have its fate tied entirely to the nearest urban hub. However, news out of Buffalo concerning the Census Bureau's determination of poverty rates doesn't bode well for the city or for WNY. (Story via Buffalo News)

Law Lessons

2007-08-29T11:51:00.000-04:00

Were the Jamestown Lawyer truly creative, I'd be working on a booklet of witty legal aphorisms to advise and inform. I'd like to take a page from that hypothetical book and explain, in basic terms, something that comes up over and over about our legal system:

Anyone can sue anyone else for anything.

It's not as witty or pithy as I'd like it to be, but in a way it sums up the answer to a question I get way too often from friends and clients. Quite often it is after the usual forward of frivolous lawsuits (most of which never were actually filed anywhere) goes around and people get up in arms.

I'm not trying to say we aren't an overly litigious society. I firmly believe that common sense needs to be applied to every lawsuit, even those filed for legitimate reasons. That said, the Jamestown Lawyer would like everyone to realize that the court system is not an exclusive nightclub with a velvet rope and a bouncer at the door.

The check on whether cases have merit occurs, in most cases, once they are filed. Court staff can turn away the truly frivolous, but are unwise to do so except in very clear situations since it opens them to civil rights liability for denying access to the courts. The system is designed in a way that a person is able to make his/her claim of how he/she has been wronged and it then falls on the other side to address why the case has no merit. In an instance where a case has zero merit, there are fines and disciplinary sanctions. Quite often the person bringing the case will then be responsible for the defendant's legal fees. Overall, it is a system geared toward protecting the rights of those who have been wronged, who get a chance to put the issue before a court. The court may agree with the opposing party that there is no claim, or perhaps there may be a claim where nothing can be done, but the allegedly wronged person has a right to present those claims.

I am not writing from the perspective of a plaintiff's lawyer here, as I usually see more defense work in my own practice. Defendants are usually between outraged and awestruck that they are being sued. A full understanding of the legal system involves understanding that service or delivery of papers, while it should be taken seriously, doesn't mean much about the value of the case or the eventual result. Sure, your former landlord is suing you for $20,000 because you left a bottle of ketchup in the fridge when you moved out. The number is scary, but the overexaggerated situation generally isn't.

BPU

2007-08-28T07:56:00.001-04:00

The Jamestown Lawyer wonders what is going on at the Board of Public Utilities. The Post-Journal reports on a string of resignations in high positions. Most important to the Jamestown Lawyer is correcting whatever the reported issue is with Customer Service.

Gonzales Steps Down

2007-08-28T07:43:00.000-04:00

ABC.com has a good article on the upcoming process to confirm a new US Attorney General. Current AG Alberto Gonzales, mired in controversy, submitted his resignation on Monday. As indicated by ABC News, this will be the first time Pres. Bush sends an AG nominee to the Democratically controlled Senate.

The Jamestown Lawyer's initial hunch is that a sitting Senator will be offered the post. Hearings on the confirmation would then have an additional layer of fraternal respect. Otherwise, I would expect the Senate to use the hearings as a public forum to question administration policies in bruising detail.

Sports & Labor Law

2007-08-21T09:22:00.000-04:00

This story features two WNY native sons: NFL Commissioner Roger Goodell and former SU and NFL star Daryl Johnston (Chautauqua and Niagara Counties, respectively). It is an interesting question, even if not really addressed in the article: what responsibility does the players' union have to former players? It's a similar question to what might be faced in coal mining unions--what happens when the black lung sets in after someone hasn't been in the mine for a few years? It's job-related risk, but it's not directly "on the job" injury.

The article, in discussing Johnston's neck injury, also touches on an issue the Jamestown Lawyer sees far too often in dealing with injured clients: the "able to work" distinction. I have encountered people who have lost decent jobs due to illness and injury and then have been turned down for benefits because they are found eligible for 4 or 5 hours a day at a fast food restaurant, even though the wages won't put a dent in Rx costs. All of which is your Jamestown Lawyer standing on a soapbox and not law-related, directly, but certainly an area where law and legislation should combine to add some common sense to the system.

Judicial Conduct

2007-08-17T14:01:00.000-04:00

The Jamestown Lawyer has written in the past on attorney and police conduct, be it exemplary or ethically challenged. For reference, here is a link to the State Commission on Judicial Conduct. This is the body which oversees judges in the state.

A telling statistic is visible in this chart (scroll down a bit) comparing the disciplinary proceedings against Justice Court judges and all other judges. In some ways, it isn't unexpected given the massive number of low level courts in the state. At the same time, I'm not sure the numbers are in proportion and we're seeing the lack of professionalism in action. That's an opinion, but it's backed up, anecdotally, by an unscientific review of a few cases. The most serious transgressions (lying under oath, repeated ex parte communication, issuing favorable judgments to friends without hearings) were most often in the Justice Courts.

Demolition

2007-08-17T05:56:00.001-04:00

An unofficial follow up to a previous post on liability and demolition costs, via a P-J article from today's paper.

The city has stepped up activity on dealing with blighted properties, but it isn't cheap. I could probably opine more on the issue, the economics and the role of government, but I'll leave it at that. Of a more topical nature is the legal basis. The Jamestown City Code allows the Department of Development to declare buildings hazardous and take them down, while seeking to recover costs from the property owner. The relevant section can be found in section 215 of the City Code. A court order is required, but the Jamestown Lawyer has never been a witness to the process to know how it unfolds in practice.

Enviro, Muni and Liability

2007-08-13T09:51:00.001-04:00

Today's P-J features a story on the Dahlstrom building, which may or may not be set to drop into the Chadakoin River. One's perspective on the situation is inevitably tied to the potential impact on the pocketbook. The building's owner says help from the state and city is needed to bring it down. The city could demolish the property as a hazard, but there's no guarantee of ever getting any money back from the owner.

This situation reminds the Jamestown Lawyer of a couple pieces of environmental law. Superfund, at the state and federal level, and New York's Oil Spill Law, in the Navigation Law both come to mind for the concept of "strict liability." Strict liability, by way of my own definition, is when the statute establishes that an involved party is liable for the costs of cleanup regardless of the involvement. Under the Oil Spill Law, for example, if you buy property and later find out it was a gas station and the soil all needs to be dug up and trucked out, you as the owner are liable for either doing it or reimbursing the DEC. The statute does allow the liable party to sue other parties who are responsible for the action, but not to shift liability (except in certain narrow cases.)

It seems a situation that could lead to unfair results, unless we remember "caveat emptor." The reason, though, is that it avoids finger pointing and blame shifting and all the like that prevents someone from undertaking the cleanup. All of that may follow in eventual civil actions between various potentially responsible parties, but by putting one person on the hook from the start, there's increased likelihood some costs will be recovered. This is important under Superfund and Oil Spill laws since every piece recovered helps fund the cleanup of additional impacted sites.

Statutory mechanisms already exist for a muni to take down a building and hold someone responsible. The more complicated situation is one like this, where it isn't an immediate danger and repair/upkeep could solve the problem. Perhaps code violations in an attempt to make the owner fix would be an answer, but it seems much less efficient than the mechanics of environmental law.

JPD Hearing

2007-08-13T09:45:00.000-04:00

The hearing regarding the termination of Sgt. Smeraldo reconvenved over the weekend, with the officer presenting a defense against the allegations. (Story is from the Post-Journal).

Being a spectator to the whole thing, I have no real insight into the matter. As the case is reported, however, I find it could go either way. The officer sounds evasive in not knowing what he said, but the case against him doesn't seem very strong.

Additional opinion, free of charge: he was suspended for assaulting a prisoner, but he's in danger of being fired for badmouthing a superior? Perhaps the list of priorities needs to revisited at 200 East Second Street.

Vick: Not yet tried.

2007-08-09T15:10:00.000-04:00

ESPN has an intriguing feature related to Michael Vick, profiling some of the civil rights leaders and activists who are taking issue with the coverage of the case and the treatment of the accused.

Racial history in our country, and in narrow areas like the law, is often downplayed because it is such an incendiary topic. This article presented the case, in a clear fashion, how many are trying to avoid a rush to judgment based on their own pasts.

The good old hockey game

2007-08-06T17:34:00.000-04:00

This post isn't professionally related, unless someone takes a puck to the face and I decide to move into torts. Alternatively, I am available to be the Jamestown Hockey GM.

If you haven't heard, Jamestown now has professional hockey.

Watson Suit Dismissed

2007-08-01T07:46:00.001-04:00

The State Supreme Court recently granted a motion for summary judgment brought by the City, dismissing the suit brought by former JPD officer Michael Watson. The link leads to P-J coverage of the decision, with comments from the attorneys on both sides.

Local Job Opening

2007-07-30T16:47:00.001-04:00

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

2007-07-30T16:33:00.000-04:00

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

2007-07-25T07:43:00.000-04:00

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

2007-07-24T09:32:00.000-04:00

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

2007-07-23T09:02:00.001-04:00

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.

2007-07-18T07:46:00.000-04:00

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

2007-07-17T22:20:00.001-04:00

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

Random Housing Law Moment

2007-07-17T22:07:00.001-04:00

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

2007-07-05T09:14:00.000-04:00

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

2007-07-04T23:32:00.001-04:00

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

2007-07-02T18:03:00.000-04:00

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

2007-07-02T15:12:00.000-04:00

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.

Landlord/tenant myth-understandings.

2007-06-18T14:41:00.000-04:00

Two quick items, to continue the ongoing thread of posting on this area of law. As always, I'm picking things that have come up repeatedly.

First, I'd like to address the topic of the security deposit. Namely, the return of said deposit. In New York, there is not a specific timeframe for return. Emphasis added to try and make the point: NY law does not set out a 10, 15, 30, 45 or 60 day period for return. New York law says a "reasonable time after the tenant has vacated" and that's all the guidance that's in the statute. Note that not only isn't there a time set by statute, but the period begins running after the tenant has left. Quite often, I encounter tenants who want to use the deposit from apartment A to pay the rent at apartment B when they are moving. Some landlords may be willing to work something out, but tenants should understand that there is no requirement that the money be returned on a specific timeline. Cases has established different time periods that are "reasonable" and interested persons should look for the cases in your jurisdiction, or consult an attorney.

A topic for another post will be costs and fees that can be legitimately deducted, but I'll save that for another time.

Second topic of the day is the gnarly world of "abandonment." These two topics are matched today because they share something in common: the lack of a set statutory period. Quite often, I hear people say that Tenant X hasn't been there in 30 days, so they can reenter, throw out belongings, rent to another party, etc. I have had many landlords quote the 30 day number to me as if it is inarguable Gospel. Fact is, it's not in the laws of New York. Unlike security deposits, with the rough guideline of "reasonable time", there isn't even that much in the law concerning abandonment. Case law (see, for example, Hackett v. Roos, 196 NYS2d 197 (Sup Ct, Nassau Co, 1959) has established a two part test, somewhat widely applied, that the tenant must (1) have intent to abandon and (2) engage in some act/failure to act that shows a lack of interest in the premises.

In a word, abandonment is messy. A tenant might be hospitalized, in jail, staying with sick relatives, etc., and not around regularly, yet could show up out of nowhere and still have a legal right to enter the premises and claim belongings. Many people in the legal field also misunderstand the timeline. Apparently, it's common to combine "the time a landlord should store abandoned property" and "the time a tenant is gone from an apartment" into a single rule. If in doubt, consult a lawyer.

Duke DA Disbarred

2007-06-18T08:15:00.000-04:00

A cautionary tale for any attorney trying to make a name for him/herself in the press. Nifong, appointed to the office and running for election for the first time to retain the job, was recently stripped of his law license.

Not to excuse his prosecutorial misconduct, but the Jamestown Lawyer has always been somewhat perplexed by campaigns for the office of DA. In order to get elected, one has to pretty much be a fire & brimstone "lock them up and melt the key and then make them eat it" sort of candidate, on whatever the hot button issue of the day is. No one is ever going to win the office by saying "Well, I have concerns about sexual offender civil incarceration, and I feel as a percentage of criminals they are a small portion of the problem, considering the recidivism rates found in our drug offenders locally." That sort of answer, or one equally frank, earns one a continuing private practice and not the office in Mayville (or Canton, Buffalo, Lake Pleasant, Lowville, Lake George, etc.)

Supreme Court

2007-06-15T09:09:00.000-04:00

There are likely no more scrutinized judges in the world than the U.S. Supreme Court judges. From childhood events to papers written for classes in undergrad days, everything about them is scanned for some indication of leanings, beliefs and ideologies. A recent article on a criminal appeal is based on "understanding" the divisions in the court.

I find this interesting, as I do anything about the top court. Yet at the same time, very little of what I do in my legal day is directly controlled by a "U.S" cite. Where are the articles and opinion pieces on "A.D." or "NY" judges who are deciding the cases I'm reading, citing and arguing?

The JPD Blog

2007-06-15T07:18:00.001-04:00

The above title is facetious, given the trend of posting on police-related topics. Today's Post-Journal, though, has an interesting look into the department disciplinary process. What interests me the most about this is that the alleged improper statements aren't discussed, although there is mention of the public nature of the hearing. Mr. Subjack's "good ol' boy" defense of "everyone does it, but they don't get written up" (see previous posts on Oficer Mike VanWaldick in Watertown for more on that) doesn't set well with me, but I'm curious if these were purely malicious comments or something with a grain of truth that also deserves the light of day.

Jamestown's Watson Case

2007-06-08T09:15:00.001-04:00

After a break, there have been a couple of articles in the P-J lately concerning the ongoing case of Michael Watson, a former Jamestown Police Department officer who is accused of various stalking/harrassing offenses. The latest is a somewhat novel development, worthy of highlighting. The prosecution has filed an Article 78 proceeding against the judge based on a ruling excluding certain evidence. An Article 78, named for its location in the Civil Procedure Law & Rules (CPLR), encompasses many of the old fashioned "writs" a court could issue to enforce/stay actions when a governmental authority was acting in an improper fashion. The writ of mandamus, known to all Con Law students from the case of _____ (anyone? Bueller?), is just one such example.

First Amendment & Building Permits

2007-06-05T22:15:00.000-04:00

Normally, the two items above are based in separate areas of law without a lot of overlap. Journey with me, if you will, using my best Rod Serling voice, to St. Lawrence County. The issue: five Amish families who failed to obtain permits for various projects.

This is the sort of question I would often post to my Civil Liberties/Con Law students: a law that isn't related to religion on its face, but that has an impact on a specific religious group. Although, it seems (according to the article) that the Amish typically obtain permits--but that's not necessary information for the hypothetical.

From an administrative law standpoint, however, it seems there are also questions about the complexity of the permit process--if a layman can't apply, it seems that there's a flaw in the system.

Hopefully the coverage of this unique story continues.

Local Case to Top Court

2007-06-05T07:41:00.000-04:00

A Jamestown man will take his case against a state agency to the State's top court, the Court of Appeals. This (from today's Post-Journal) is pretty decent coverage of all the legal arguments being put forward and shows the level of detail required in parsing a statute and creating an argument against the application of the statute.

Jamestown Housing

2007-05-22T03:32:00.000-04:00

Hon. George Panebianco, Acting City Court Judge, will now be sitting regularly on Housing Court issues. The Post-Journal discusses his approach and has comments from the Judge, from a meeting with the City Council, regarding the state of housing code enforcement.

Former CoA Judge Wachtler Speaks in WNY

2007-05-08T14:52:00.000-04:00

Judge Sol Wachtler, formerly NY's top judge, is mainly known for being arrested, disbarred and spending a stint in federal lockup. The Buffalo News covered his upcoming talk and interviewed him regarding his ongoing advocacy for person, like him, who have mental illness and are involved in the criminal justice system.

Winding Down

2007-04-25T09:26:00.000-04:00

The fact that the Jamestown Lawyer blog goes a week or so without updates is indicating to me that it may be time for a hiatus, a reworking or straightforward abandonment. Expect little to no activity for the next two weeks as the nature of the beast is under inspection and introspection.

Family Court: NYC

2007-04-17T08:55:00.000-04:00

NYC is looking to change the way assigned counsel is provided in Family Court cases. The plan is to move away from the "18-b" (named for the clause in the County Law which also effects upstate county) pool of assigned lawyers toward a system where a nonprofit legal services organization oversees representation.

The image of the 18-b lawyer presented by the advocate for change Mr. Lasner seems a little skewed, but at the same time, there's truth to what he says. Assigned counsel quite often is the mainstay of work for newer or less skilled attorneys. Perhaps, while this change is welcome, we should also be looking at the nature of our profession and figuring out how to deal with a glut that creates lawyers who are churning cases to make a buck.

And now for something completely different...

2007-04-12T10:42:00.000-04:00

I'm not a fan of most tv court "reality" shows. This, however, has a lot of potential.

Homicide in Chautauqua County

2007-04-10T13:29:00.000-04:00

A link to the Buffalo News' brief coverage of the first homicide of the calendar year in Chautauqua. A sad story that hopefully will provide a cautionary tale for others.

The Post-Journal also covered the story, supplying less detail and identifying it in the headline as "murder." Semantics are important to lawyers and should be to journalists. "Murder" is a technical term under the laws of New York requiring certain intent and actions. "Homicide" is a general term for the killing of a human, which may be by "murder" or "manslaughter" or "negligent homicide" or perhaps other legal terms.

Family Law: Supervised Visitation

2007-04-09T09:21:00.000-04:00

Not long ago, an acquaintance was waiting in the hall with her grandchildren when a court officer came out, told her she'd been named as the person to supervise visitation, and told her to go into the court room before the judge where her child and the grandchildren's other parent were appearing on a custody/visitation matter. I chalked it up to one of those one-off situations that sometimes happens, given the collision between strict legal procedures and messy family emotion. However, the NY Times reports on another, somewhat related wrinkle to the area of supervised visitation: the fact that many people who are ordered to have a neutral, non-related supervisor can't afford the rates to have professional supervision.

Editorializing under cover of "analysis" may follow.

Oh, you mean that arrest?

2007-04-04T11:07:00.000-04:00

Today's PJ reports on an interesting matter developing in the Town of Ellicott. It seems the police never released the report of the arrest until the paper FOIL'ed the information. There's no obligation that the police report every arrest to the media, but it certainly creates an appearance of impropriety where they are selective in releasing information on a particular person.

Public Defender Work

2007-03-28T08:55:00.000-04:00

The State's top judge, Chief Judge Kaye of the Court of Appeals, recently released a report concerning the status of the public defender system in New York. Currently, each county operates its own system. In some counties, all qualifying defendants are assigned a private lawyer who is then paid (at a statutorily-set rate) by the county. In others, such as Chautauqua, the county will operate a PD's office who will handle the majority of qualifying cases, with conflicts and overflow assigned to private counsel. In others, such as St. Lawrence, the county operates two PD office: the Public Defender and the Conflict Public Defender, which reduces the amount outsourced to private attorneys. In nearly every case, public defenders have a higher workload and lower pay rate than comparable positions with the District Attorney.

Brief blurbs

2007-03-26T13:09:00.000-04:00

Some news stories that caught my attention:

The Chautauqua County Legislature has proposed a change to the hiring process, so that the leg. must now be informed of appointments. It seems innocuous, but we'll see what all the varied interests have to say. It doesn't appear to be a separation of powers issue as long as they are just asking for info, but we shall see.

An anti-capital punishment forum was held in the region last week(Buffalo) and there were some interesting perspectives. It is certainly a hard issue to separate economics from law from emotion.

Not law related, but tangential: I work with a few local bands in interpreting contracts and the like, and this article covers some of the daily life that you won't see on "Cribs." Music (and entertainment in general) is a rough business to break into, whether you're the performer or someone working for that 10% cut.

ATV decision, Lewis County

2007-03-26T11:47:00.000-04:00

I accidently removed the recent post re: Lewis County's attempts to get local legislation passed with regard to opening roads to ATVs. Since I have yet been unable to find a proper link or news story, checking out commentary at NNY Follies until such time.

Ethics

2007-03-22T19:01:00.000-04:00

Wisconsin's attorney discipline system is looking into some "undercover" work undertaken by a lawyer seeking evidence for a trial.

The Jamestown Lawyer opinion? Shady and reprehensible. Probably good for many of my brethren in the profession that I don't get to make those calls.

Fed Court Invalidates Anti-Porn Law

2007-03-22T18:54:00.000-04:00

A First Amendment case gets brief mention today, as covered by CNN.

A lawyer for the government, in supporting the act which established a duty on website owners to check for visitor's ages and imposed stiff fines, said:

"It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," a government attorney, Peter D. Keisler, argued in a post-trial brief.

Without editorializing too much, I would have to strenuously disagree that government has any sort of duty in this arena, at least as far as legal material. It will be interesting to watch this develop on appeal.

Falconer: Election Law

2007-03-20T07:50:00.000-04:00

An interesting tale (via the P-J) from one of the local villages: a ballot error may have effects on today's mayoral election. The ballot will be correct at the polling places, but the absentee ballots sent out previously will contain the mistake. The error appears to be related to the interpretation of one section of law, setting the number and/or arrangement of ballot lines per candidate. A local man running under the label of an independent body was bumped to Row D when the law seems to read he should have been at Row C.

County Jail

2007-03-20T07:39:00.000-04:00

The addition to the Chautauqua County jail is finished, yet empty. As reported in today's Post-Journal, the state agency overseeing prisons has refused authorization to begin operation. The state has safety in mind, requiring sufficient staff to protect both guards and inmates, but at the same time, decisions on staffing as related in the article seem completely arbitrary. Either that, or someone at the county level dropped the ball in following the regs to determine the required staff numbers. Somehow, I'm guessing the former.

Regionalization

2007-03-19T11:47:00.000-04:00

The Town of Chautauqua has been in the news a bit lately for a proposed plan to shift road maintance away from the town, to the county. Sunday's Post-Journal carried the latest developments.

Consolidation makes sense in many ways, but the tail of this article raises some of the questions posed regarding the county takeover which are good food for thought on consolidation generally. Delivery of governmental services is likely to change following any regionalism initiative, going hand-in-hand with reduced costs, but that seems to be the practical-level material not answered in the Chautauqua proposal.

Legally, it also appears to be out of sync with some of the law. If there's a car accident because of poor plowing, is it the town or the county that's on the hook? In our overly litigious society, the answer is probably "both", but it's that sort of liability issue that once scuttled auto leasing, for example, and may be relevant here.

Trials

2007-03-13T13:32:00.000-04:00

The Albany Lawyer posts a fun exchange from a recent trial on his blog. I have to say that I've never managed to snap off a witty bon mot during a trial. Which, on a slow Tuesday, I'll turn into one of those "life lesson" sorts of posts that I wish I'd read as a law student. In other words, my opinion and perspective which can be easily disregarded should you so choose.

Trials are the most visible and publicly-recognized aspect of American lawyering. They are also, relative to the number of cases filed in most courts, exceedingly rare. Further, a lot of what the average lawyer handles in daily practice will never be part of an adversarial proceeding. I know some attorneys, including managing and senior partners at several firms, who have never argued a case at trial. Some of this is due to the area of practice: estates work, traditionally, hasn't involved much litigation (although a local attorney recently stated she's frustrated with the increasing amount of trial practice in that field). Some real estate, corporate work and parts of the booming IP field both are research/counseling/paperwork heavy and don't involve appearances.

The point I'm building toward is this: the trial, on tv or in the moot court society of your local law school, has an inflated importance. Making and defending your arguments while distinguishing and disproving your opponent's positions: a necessary and vital part of the legal experience. Doing so orally via a combination of oral testimony and the arcane NY rules of evidence? Not so much. The trial is an important part of the legal experience, but it isn't the be-all of it as presented in the media. Some people, like the Albany Lawyer, do well in a trial-heavy practice. Others have found a happy career researching and writing, or counseling clients, or doing many other things that don't bring them into a courtroom on a regular basis. In short, if you love trial work, you have a great shot as a lawyer, but if you don't, don't get discouraged and think it isn't for you just because your law school or NBC tv seems to revolve the trial as the highest calling.

Professional Responsibility, 2nd Circuit

2007-03-13T09:10:00.000-04:00

A story from law.com, as printed in the New York Law Journal, indicates that the Second Circuit has instituted it's own grievance committee.

It's an interesting aspect of our federalist system, that we have lawyers admitted and regulated by the various states who can practice in multi-state federal circuit courts. Every court should have the teeth to enforce the rules of conduct and professional responsibility.

Online info

2007-03-08T09:13:00.000-05:00

A story reported on the website techdirt.com poses an interesting question in this technological day and age. Some prospective job candidates are arguing that information about them on the web is sabotaging their job search. The problem is not, as one might expect, strident blogging or ill-publicized photos on a myspace page. Instead, it's discussions or information about said person from other people. The article raises a very good point about whether or not this sort of information should be relevant. Then again, as someone who is involved in hiring, the occasional glimpse into the life of the person across the table, all shiny in his suit and tie and discussing how law school was simply the most rewarding experience ever, may be useful in learning about the person him- or herself.

(ETA: I googled my name and found only two mentions of myself on the first ten pages, neither with commentary. Perhaps I should be sending out resumes.)

NYSBA

2007-03-07T11:14:00.000-05:00

Usually I'm a fan of the NY State Bar Association. Admittedly, my sole connection to the organization is the discount I use for CLE programs and a magazine I, at best, skim on a monthly basis. However, as they cashed my renewal check almost two weeks ago, it'd be nice if whatever call center NYSBA hired in the 757 area code (Norfolk, VA) would get notice and not call me at work to "discuss my renewal status."

Libby verdict

2007-03-06T16:06:00.000-05:00

I tend to avoid politically-related posts on here, since it's pretty much guaranteed that 50% of the population will disagree with whatever is written. So without commentary, Lewis "Scooter" Libby was found guilty (NY Times story) on four of the five counts against him.

In other news, posting will likely continue to be sporadic for the indefinite future.

Sex Offenders: Civil Confinement Close

2007-03-01T07:43:00.000-05:00

The Times-Union is reporting that the various legislative interests and Gov. Spitzer are close to a deal on a law authorizing post-sentence civil confinement of sex offenders. Details are to be released later today (3/1).

I'd expect that, no matter what is signed into law, there will be a period before anything is settled as this is an area ripe for Constitutional challenges.

Two quick items

2007-02-21T07:46:00.000-05:00

Light-to-no posting will probably continue for a few more days. Since we're already here, though, two items of interest from the NY Times.

First, a prisoner rights case is climbing to the highest appellate levels. It seems NY had a system, recently changed, of adding fees to the collect calls leaving NY's prisons.

Second, the Supreme Court is going to hear a case related to the NY judicial selection process. Complaints in the past few years, including indictments in Brooklyn for illegal acts, have cast a negative light on the current system of nominating conventions.

Entertainment

2007-02-13T17:27:00.000-05:00

As a fan of stage and screen (well, mainly the small screen in my living room), I have a spectator's interest in entertainment law. Variety, one of the top trade papers in the entertainment biz, recently presented a view into the meeting of law and entertainment.

New Judge

2007-02-13T09:15:00.000-05:00

The Court of Appeals has a new member, following on the recent appointment of former 4th Department Presiding Justice Piggott. Judge T. Jones Jr., a Supreme Court judge from Brooklyn, is Gov. Spitzer's first appointment to the top court.

Erie Co.: Former Legislature Chairman Removed

2007-02-08T19:27:00.000-05:00

An interesting saga is going on just to our north, in Erie County. George Holt, a scandal-plagued former chairman of the county legislature, recently pleaded guilty to a tax evasion charge. He claims the DA told him the plea wouldn't have an effect on his elected position. The County Attorney disagreed, issuing an opinion that the seat was vacated by the conviction under the Public Officers Law. Holt sued, for an injunction preserving his seat, and the State Supreme Court ruled against him. Holt has claimed racial reasons are behind the removal, citing a former legislator who was not removed after a DWI conviction.

New advert rules challenged

2007-02-08T06:54:00.000-05:00

Alexander & Catalano, the "heavy hitters" have filed a federal lawsuit challenging the recent rules which more closely regulate lawyer advertising. Among other things, the new rules prevent nicknames such as the "heavy hitters" and require a certain amount of decorum in commercials (ie, no f/x depicting yourself as a "legal giant" or with superpowers).

I have friends who do personal injury work, and they are good lawyers and good people. Yet it is the excesses of a few firms in that area of law that have motivated this new rule. Law currently suffers from an image problem, as a profession. Perhaps I should care more about lining my own pockets short term than thinking of the future of my career and my field, but this "race to the bottom" spurred by PI advertising seems the antithesis of the learned practice of law.

Local attorney passes away

2007-02-07T13:15:00.000-05:00

The Jamestown Lawyer would like to extend condolences to the friends, family and colleagues of Susan Amsler, who was the law clerk for County Court Judge Ward. While I had very limited interaction with her, our few telephone conversations were always of the sort that I could tell she knew her stuff and practiced in a professional yet genial fashion.