Attorney Thomas Liotti

We are not fans of Attorney Thomas Liotti, but his action against corruption in the courts is a step in the right direction.

As far as hiring him for your case, be ready to have newspapers telling your story, and don't expect answers to your telephone calls anytime soon.

Betsy Combier
betsy.combier@gmail.com
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Lawsuit filed against judicial cross-endorsements
By Celeste Hadrick, celeste.hadrick@newsday.com, Newsday, updated July 25, 2019
Celeste Hadrick covers government and politics in Nassau County.

Garden City attorney Thomas Liotti, who has represented high-profile clients and helped remove a Nassau County Court judge, is looking to put an end to political party cross-endorsements of judicial candidates.

Liotti on Thursday filed a federal voting rights lawsuit against the Nassau Republican, Democratic and Conservative parties as well as the county and state elections boards, alleging they “conspired and colluded together to deprive registered voters of a freedom of choice in voting rights as guaranteed by the Fourteenth and Fifteenth amendments of the United States Constitution and the First Amendment’s freedom of association provisions.”

Liotti, who also serves as the Westbury Village justice, contends in the lawsuit that the parties’ cross endorsements “virtually guarantee” the election of candidates who have not previously served on the bench.

Liotti, who filed on his own behalf, cites the expected cross endorsement for Supreme Court this fall of Nassau Democratic elections Commissioner David Gugerty, also the Oyster Bay Democratic leader, and Christopher Ostuni, counsel for the Republican majority on the Nassau County Legislature and son-in-law of former Republican chairman Joseph Mondello, the U.S. Ambassador to Trinidad and Tobago. Neither Gugerty nor Ostuni have served as judges. Gugerty’s wife, Helene Gugerty, is a Nassau County Court judge.

Once elected, judges who were cross endorsed “are beholden to Party leaders and their committees; lobbyists, lawyers and litigants who have supported them,” Liotti wrote in the lawsuit filed in U.S. District Court for the Eastern District. The cross endorsements also guarantee patronage employment of law secretaries, law clerks and other court personnel hired by the cross-endorsed judges, Liotti said.

Liotti asks the court to declare that cross-endorsement agreements are “illegal, unconstitutional and a violation of …. civil rights” and to issue a permanent injunction against cross-endorsements.

Liotti recently represented the estranged wife of former Sen. Alfonse D’Amato in a bitter child custody battle until Liotti was removed from the case by a judge who said Liotti hadn’t acted in the children's’ best interests. Liotti also represented former Nassau Legis. Roger Corbin, who was charged with tax evasion, and attempted unsuccessfully to enjoin Newsday and other media from using photos of Corbin in handcuffs. Liotti also filed complaints against former Nassau County Court Judge Marc Mogil, who was removed for improper judicial conduct.

Nassau Democratic Chairman Jay Jacobs, who is also the state Democratic chairman, said he hadn’t seen Liotti’s lawsuit, but said cross-endorsements “by all accounts, … comply with current law and it is fairly settled law.”

Michael Deery, spokesman for Republican Chairman Joseph Cairo, said, “The Nassau Republican Committee is committed to selecting the best qualified judicial candidates and the lawsuit is without merit.”

Nassau Conservative Party Chairman Dan Donovan did not immediately respond to requests for comment.

Attorney Thomas Liotti of Garden City, NY; lying loser

The state of Georgia presented Thomas Francis Liotti with a law license in 1977 after he graduated from the University of Delaware Law School.

The U.S. 4^th Circuit Court of Appeals found Tommy guilty of the following misconduct.

Thomas represented a client in an appeal of a criminal conviction rendered in the U.S. District Court of South Carolina before the 4^th Circuit Court of Appeals.

In his reply brief, Thomas rearranged a number of quotes in such a way as to misrepresent that the statements were sequential and went to show that the prosecution had failed to prove its case. In fact, they were separated and involved different subjects altogether.

In his opening brief, Thomas alleged that the trial judge “sat on” evidence that tended to call the credibility of the government’s informant into question. In truth, the court did not receive this evidence until after the trial was over.

Thomas also alleged in his opening brief that the government overestimated how long the trial would last (saying it would take about two weeks) in an attempt to defeat a motion for a change of venue. In actuality, it was Thomas himself that overestimated the trial lengthy by guessing two weeks, the government disagreed on the record and suggested it would last three or four days.

Making matters worse, Thomas initially argued before the trial judge that his client engaged in an internet conversation that proved his innocence. However, at a later date, Thomas admitted that he had fabricated the conversation because it never took place.

And lastly, Thomas alleged in his reply brief that two of the Secret Service agents responsible for the case against his client were subsequently discharged for misconduct. However, there was no evidence of the agents being terminated and when pressed to present some during oral argument , Tommy backed away from his manufactured assertion.

As a consequence of his misconduct, the enablers for Attorney Misfits sitting on the 4^th Circuit Court of Appeals punished Thomas by gifting him with a complimentary admonishment.

As we speak (ca. August 2013), Thomas practices with the Law Offices of Thomas F. Liotti at 600 Old Country Road in Garden City, New York, which is about 25 miles east of New York City.

Legal Malpractice and the Use of a Disbarred Attorney

Actually we’re a little shocked at the facts of this matrimonial action involving Thomas Liotti. in Coccia v Liotti ;2010 NY Slip Op 00917 ; Decided on February 9, 2010 ; Appellate Division, Second Department we see some very unusual language from the Appellate Division. Beyond reinstating [or more correctly put, modifying] the legal malpractice claims, the AD basically granted summary judgment wiping out attorney fees by Liotti on the almost unheard of use of a disbarred attorney and misleading the client into thinking that the attorney was in good standing.

Rather than explain, here is the decisional language:

"The Supreme Court also erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the fourth cause of action to the extent that it was based upon a failure to render itemized bills, and in thereupon granting that branch of the initial cross motion. Although the court appropriately reasoned that noncompliance with 22 NYCRR 1400.2 does not require an attorney to return fees already paid to him or her for services properly rendered (see Mulcahy v Mulcahy, 285 AD2d 587, 588; Markard v Markard, 263 AD2d 470, 471), this cause of action sought the return of counsel fees already paid by the plaintiff not only on the ground that the defendant failed to render itemized bills in compliance with 22 NYCRR 1400.2 and 1400.3, but also on the ground that the defendant breached the retainer agreement by virtue of the manner, form, substance, and timeliness of his billing. Based on the contents of the defendant’s submissions on the initial cross motion, the defendant failed to make a prima facie showing that he complied with the provision in the retainer agreement related to the manner of billing. Thus, the court erred in awarding summary judgment to the defendant dismissing this cause of action to the extent that it was based upon a failure to render itemized bills.

The Supreme Court properly, in effect, upon renewal, vacated the determination in [*5]the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the fifth cause of action to recover damages for fraudulent inducement, based upon the defendant’s alleged misrepresentation that he would prosecute an appeal from an order in the underlying malpractice action, and in thereupon granting that branch of the initial cross motion. "In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). The plaintiff alleged that she was fraudulently induced into executing the retainer agreement by the defendant’s alleged promise that he would prosecute an appeal from an order in the underlying matrimonial action. She also asserted that she was informed during the course of the representation that the defendant’s firm would address the appeal, but that the defendant failed to prosecute the appeal. Since the plaintiff is, in essence, arguing that the defendant breached the retainer agreement, the Supreme Court appropriately awarded summary judgment to the defendant dismissing this cause of action. " [A] cause of action to recover damages for fraud will not arise when the only fraud alleged relates to a breach of contract’" (Biancone v Bossi, 24 AD3d 582, 583, quoting Rosen v Watermill Dev. Corp., 1 AD3d 424, 426). Further, a representation of opinion or a prediction of something which is hoped or expected to occur in the future does not sustain an action to recover damages for fraud (see Chase Invs. v Kent, 256 AD2d 298, 299).

However, the Supreme Court erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the sixth cause of action to recover damages for fraudulent inducement, based upon the defendant’s alleged misrepresentation that the person who would be substantially responsible for her case was an attorney. The plaintiff alleged that she later learned that such person was a disbarred attorney, prohibited from practicing law, and that the defendant fraudulently concealed this information. Contrary to the Supreme Court’s conclusion, we find that the defendant failed in his initial submissions to establish, as a matter of law, that the plaintiff did not justifiably rely upon his representation of this individual’s status as an attorney in good standing.

The Supreme Court erred in denying those branches of the plaintiff’s cross motion which were for summary judgment dismissing the first, second, and third counterclaims seeking to recover outstanding counsel fees. The Supreme Court, in denying these branches of the plaintiff’s cross motion, reasoned that questions of fact existed as to whether the defendant was justifiably discharged for cause, based upon his alleged failure to perfect and prosecute the appeal from the matrimonial order. However, as the plaintiff correctly points out, this was not the only basis upon which she sought summary judgment dismissing these counterclaims. The plaintiff also argued to the Supreme Court, inter alia, that these counterclaims should be dismissed since, had she known that a disbarred attorney was working on her case, she would have been justified in discharging the defendant for cause.

"[A] client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43; see Solomon v Bartley, 203 AD2d 449). Where the discharge is for cause, the attorney has no right to compensation, and may not assert a retaining lien on the client’s file (see Campagnola v Mulholland, Minion & Roe, 76 NY2d at 43; Orendick v Chiodo, 272 AD2d 901; Matter of Leopold, 244 AD2d 411). "Misconduct that occurs before an attorney’s discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture" (Orendick v Chiodo, 272 AD2d at 902). An attorney may be discharged for cause where he or she has engaged in misconduct, has failed to prosecute the client’s case diligently, or has otherwise improperly handled the client’s case or committed malpractice (see e.g. Costello v Kiaer, 278 AD2d 50; Hawkins v Lenox Hill Hosp., 138 AD2d 572).

In her cross motion, the plaintiff alleged that the disbarred attorney was closely involved in her case, and reassured her that he was working on her appeal from the matrimonial [*6]order. The plaintiff alleged that the disbarred attorney not only had contact with her, but also dealt with the husband’s attorney and with the attorney for the children who had been appointed by the court. She claimed that the defendant seemed unfamiliar with her case, consulted with the disbarred attorney, and sought advice from the disbarred attorney when it was necessary to appear in court. The time records which the plaintiff submitted on her cross motion indicated that the defendant intended to bill her for conferring or meeting with the disbarred attorney on several occasions, that the disbarred attorney drafted memos and notes and that, on one occasion, the disbarred attorney accompanied the defendant to court. The plaintiff alleged in her affidavit that, while in court, the disbarred attorney consulted with her and the defendant "on how to handle whatever was in front of the court at that time."

Based upon the plaintiff’s allegations, it appears that the disbarred attorney was engaged in the practice of law (see Matter of Rowe, 80 NY2d 336, 341-342, cert denied sub nom. Rowe v Joint Bar Assn. Grievance Comm. for Second & Eleventh Jud. Dists., 508 US 928 ["The practice of law involves the rendering of legal advice and opinions directed to particular clients"]). A disbarred attorney may not engage in the practice of law (see 22 NYCRR 691.10[e]), and an attorney may be guilty of professional misconduct where he intentionally aids a disbarred attorney to continue to practice law (see Matter of Raskin, 217 AD2d 187). Further, the plaintiff alleged that the defendant knew that this individual was disbarred, yet intentionally failed to reveal this information. Moreover, the orders related to this individual’s suspension and disbarment involve sustained charges of lying to clients and neglecting their cases. By entrusting the plaintiff’s case to this individual to the extent alleged by the plaintiff, the defendant failed diligently to handle her case. Thus, the plaintiff met her burden of establishing, as a matter of law, that she would have been justified in discharging the defendant for cause.

In response to these allegations, the defendant merely asserted that the disbarred attorney’s involvement in the plaintiff’s case had no bearing on the issue of counsel fees since the plaintiff received a "phenomenal result," and that the Grievance Committee for the Tenth Judicial District "took no action with respect to [these allegations]." The defendant, however, never attempted to raise a triable issue of fact as to the level of this individual’s involvement in the plaintiff’s case, and never claimed that he was unaware of this person’s status as a disbarred attorney. Although, on this appeal, the defendant raises a number of allegations in this regard, including that the disbarred attorney was only minimally involved in the plaintiff’s case, these allegations are dehors the record. Accordingly, in response to the plaintiff’s prima facie showing with respect to the defendant’s lack of entitlement to retain counsel fees that she already paid, the defendant failed to raise a triable issue of fact.

This is New York, the largest and most corrupt city in America..

Anyone who has had an issue with any State Agency or who is not politically connected or does not have the money to buy influence in the State Courts, can clearly see the corruption that festers in the hallowed halls of injustice here.

We are nevertheless appalled by the Democratic Party, which controls the Judges in New York City, in their arrogance of immunity in demoting Judge Armando Montano for not hiring the Party Chairman's former aide after Montano was elected. He challenged the Party machine, as he should have.

We must break free of the stranglehold that politics has in this city.

Betsy Combier, betsy.combier@gmail.com

Editor, ADVOCATZ.com

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A Judge Refused to Hire a Party Boss’s Aide. A Demotion Followed.

He said the Bronx Democratic chairman punished him for bucking the patronage system.

By Jan Ransom

Sept. 7, 2019

Three months after the Bronx Democratic Party announced its support for Judge Armando Montano in the 2017 election for State Supreme Court justice, the party’s chairman had a request: He wanted the newly elected judge to hire the chairman’s former aide as a confidential assistant.

Justice Montano interviewed the person, thought it over and declined. “Damn judge, really?” the party chairman, Assemblyman Marcos Crespo, texted him after his decision. “I mentioned I had a recommendation in mind for the confidential role.”

Seven months later, after winning election, Justice Montano was abruptly reassigned in the Supreme Court, where he had presided over felonies, to a part handling domestic violence cases, a less desirable position.

He refused to accept the assignment, and the chief administrative judge, Lawrence K. Marks, stripped Justice Montano of his caseload, chambers and staff.

The former judge maintains the Office of Court Administration punished him at the behest of party leaders because he would not hire Mr. Crespo’s assistant. Court administration officials say it was a routine reassignment that had nothing to do with politics.

Judge Marks declined to be interviewed for this article.

Judgeships are one of the last bastions of machine party power, and Mr. Montano maintains his case highlights a system of patronage that has long existed in courthouses throughout the city, but is especially prevalent in the Bronx, where party leaders maintain a strong hold over the judiciary and district attorney’s office. The party leaders most recently handpicked the borough’s top prosecutor, Darcel D. Clark.

The Bronx Democratic Party has moved to clean up its act since the blatantly corrupt days of Stanley Friedman, the disgraced former party leader who was convicted of federal bribery charges in 1986. Still, it remains one of the most powerful political machines in the city; party bosses call the shots in low-interest races and expect favors — like jobs — in exchange for their support.

“Judgeships are bought,” said one political consultant, who spoke on the condition of anonymity, citing fear of retribution. “The jobs that come out of that office go to the organization — they make the choice of who gets the jobs.”

Mr. Crespo, the party’s chairman, said Democratic leaders only recommend people for positions, and no one is penalized for not hiring the party’s picks.

“We make recommendations, of course,” Mr. Crespo said. “Sometimes they get hired, sometimes they don’t. The perception we hold people accountable is not true.”

At least three people connected to Mr. Crespo and the Bronx Democratic Party have been identified as current or former court employees, including Mr. Crespo’s wife, Virna Lisy Crespo.

Ms. Crespo said she applied for the job after learning about the opening when a friend, who is now a judge, suggested she apply. She said there was “no political push” and that her husband was not involved.

Ms. Crespo was hired as a secretary in 2016 by Supreme Court Justice Ruben Franco in the Bronx and was later transferred to the Supreme Civil Court before leaving the post in February last year, according to Lucian Chalfen, spokesman for the Office of Court Administration. Mr. Crespo contends that his wife got the job on her own merits and not through a political connection.

That same judge also hired Ashley Curet, the staffer at the Bronx Democratic County Committee who Mr. Crespo later recommended that Mr. Montano hire. Ms. Curet served as a court secretary for eight months in 2017, according to Mr. Chalfen.

Then, in July last year, Administrative Judge Robert Torres in the Bronx Supreme Court’s criminal section hired Mr. Crespo’s former community liaison, Onelis Ramirez, for a position as principal secretary. Among the three women, Ms. Ramirez received the highest salary of $51,940.

That same month, Judge Torres, who was up for re-election in November and needed support from the party, played a pivotal roll in reassigning Mr. Montano. Through a spokesman, Judge Torres declined to comment on the decision.

Patronage in the New York City courts has a long history. Nearly two decades ago, Judge Margarita Lopez Torres of civil court in Brooklyn fell out of favor with the Democratic machine when she refused to make patronage hires. The party declined to back her re-election bid. She ran anyway and beat the party-backed candidates. But then party leaders blocked her efforts to be interviewed to become a Supreme Court justice.

Democratic Party leaders effectively control judgeships in New York City. Because they have a well-oiled machine for collecting signatures for nominating petitions, they can determine who gets on the ballot as delegates to “judicial conventions,” which select the party’s judicial candidates. Those candidates usually face little Republican opposition in the general election.

The convention method, which is unique to New York State, survived a challenge before the United States Supreme Court in 2008, though some justices were critical of the system. One noted: “The Constitution does not prohibit legislatures from enacting stupid laws.”

Dennis R. Hawkins, executive director of the Fund for Modern Courts, a watchdog group, called the state’s judicial election process “an undemocratic, closed system” that allows patronage to flourish.

“This whole convention thing enables this kind of thing to happen,” Mr. Hawkins said. “Do we really want that as part of the judiciary?”

One Bronx judge who spoke on the condition of anonymity for fear of retribution said that party leaders often make recommendations. The judge hired some and rejected others, the judge said.

They make suggestions — after all, they support you for election,” the judge said, noting there was no pressure to hire. “They have people who do election work for the party and make it possible to be elected. The incentive? Maybe there will be jobs in it for them.”

Mr. Chalfen denied that there was anything political about the decision to send Mr. Montano to the integrated domestic violence section, which deals with criminal, family and matrimonial matters.

It was a routine reassignment to fill an operational need, he said. The domestic violence section, Mr. Chalfen said in a statement, is “extremely important and assignment to such a court is hardly a demotion.”

Justice Montano was ultimately forced from the bench in July 2018. The administrative board of the courts, which consists of the presiding justices of the four appellate departments and the chief judge, decided not to extend his tenure because he had refused to accept the assignment to the domestic violence court, Mr. Chalfen said. Under state law, Justice Montano needed the board’s blessing to serve past the age of 70 under state law.

The Office of Court Administration filed a complaint against Justice Montano with the Commission on Judicial Conduct after he refused to accept the new assignment, but the review was closed following his departure from the bench.

Justice Montano had asked the commission to grant him a public hearing and had hoped to use it to expose a system he has said is overwhelmingly political and perhaps corrupt.

“It is unethical and possibly criminal to allow the Democratic Party leader to use the courts as a patronage mill,” the former judge, 70, said during an interview at his lawyer’s Midtown office. “It’s something that should be addressed. If you play ball, go along to get along, you compromise your integrity and compromise the court system.”

The former judge, the son of a longtime Bronx assemblyman, was a defense lawyer for 34 years before being elected as a civil court judge in 2013. In 2017, he was nominated at the Bronx Judicial Convention to the Supreme Court. There, he said, he helped cut down on a backlog of cases.

“No one will give him the chance to show there is political corruption,” said Paul Gentile, the former judge’s lawyer. He said his client unfairly has the reputation now as an insubordinate judge. “It’s in every court. It adds up to the fact that we don’t have an independent judiciary.”
Jan Ransom is a reporter covering New York City. Before joining The Times in 2017, she covered law enforcement and crime for The Boston Globe. She is a native New Yorker. @Jan_Ransom

NYC Mayor Bill de Blasio

New York City Mayor Bill de Blasio is, it seems, very interested in you if you have the money to give him to pay for any favors. It's called "Pay to Play".

Or "corruption".

Call it whatever you want, it is still not the way to rule or lead.

Betsy Combier, betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Lobbyists made $113M in 2019 wooing NYC City Hall, Council, report says

by Carl Campanile, NY POST, March 1, 2020

Well-connected lobbyists made a killing in 2019 wooing City Hall and the City Council on an everything-but-the-kitchen-sink list of issues, raking in a cumulative $113.19 million, according to a new report by the City Clerk.

That eye-popping total represents a 10-percent hike from what the scale-tippers pulled down in 2018, underscoring just how loudly money talks in the political arena, watchdogs said.

“The increase in spending shows the well-heeled can spend for a megaphone compared to the average New Yorker, who speaks with a whisper,” said Blair Horner, of the New York Public Interest Research Group.

“It must be working or they wouldn’t be spending more dough on lobbying.”

Tops on the list for the third year running was Suri Kasirer’s firm, Kasirer LLC, which pocketed $14.3 million from its more than 200 clients, the report found.

Her sizable stable includes: PETA, which seeks better treatment for carriage horses and backs a proposed ban on furs; Tobacco Free Kids and the Cancer Society, which supported a ban on flavored e-cigarettes; NY1 owner Charter Communications, whose franchise needs to be renewed by the city; Uber, which is fighting city proposals to cap trips; and the consortium that sought to redevelop the area in Long Island City for the aborted Amazon campus.

“It’s not my first rodeo,” said Kasirer, who has built inroads with Mayor Bill de Blasio — plus Mayors Michael Bloomberg and Rudy Giuliani before him — as well as City Council Speaker Corey Johnson, who is widely considered a frontrunner to become the city’s next mayor.

“You have to build coalitions in both the council and the administration.”

The second-highest compensated firm was James Capalino & Associates, which earned $11.9 million in 2019.

Like Kasirer, Capalino also has decades-long ties to de Blasio and others in city government, and a diverse roster of clients that includes the Staten Island Mall, the Archdiocese of New York, vaping giant Juul Labs, Macy’s, New York University, UPS and more.

One of Kasirer’s clients, the pro-animal rights, anti-horse carriage group New Yorkers for Clean, Livable and Safe Streets — or NYCLASS — agreed in 2018 to pay state run-watchdog the Joint Commission on Public Ethics a $10,000 fine to settle allegations of lobbying-act violations after donating $75,000 to the Campaign for One New York, a de Blasio-controlled advocacy group.

In the same year, Capalino paid a $40,000 fine to JCOPE to settle accusations of lobbying violations, admitting he personally contributed $10,000 to de Blasio’s CONY and secured another $90,000 in contributions from nine clients who retained him to lobby the city, the mayor and his senior staff.

The Bolton – St. John’s firm came in a distant third in the city clerk’s report, earning $5.6 million in 2019.

With respect to outgoing funds, the parent company of RJ Reynolds Tobacco — RAI Services — had the biggest lobbying stable, paying seven different firms in its fight against legislation to ban menthol cigarettes.

But real estate and development remains the bread and butter of the lobbying industry, accounting for 40 percent of all compensation, the report noted.

The developer of a project to build a 13-tower mixed-use project along Flushing Creek in Queens — the FWRA consortium — paid over $1 million in lobbying bills as it seeks to win city approval to rezone the area, the most paid by any one client last year.

Capalino is one of the consortium’s lobbyists.

“It begs the question of whether the public interest is being served or whether special interests have too much influence by hiring experts,” said Alexander Camarda, of watchdog group Reinvent Albany.

While his since-disbanded CONY group was under investigation, de Blasio said he would restrict directly meeting with lobbyists, a stance that City Hall said he maintains.

“The mayor does not meet with any lobbyists-for-hire,” said mayoral spokeswoman Freddi Goldstein.

Johnson — who has publicly said that he would reject special-interest money in his City Hall run — declined comment.

Additional reporting by Rich Calder and Aaron Feis

Developer paid de Blasio-linked lobbyist, lawyers for East Village petition

by Julia Marsh, NYPOST, January 24, 2020

A developer paid an ethically tarred City Hall lobbyist — and the law firm that defended Mayor Bill de Blasio against pay-to-play allegations — to press the administration for permission to expand a 10-story office tower in the East Village, The Post has learned.

The Landmarks Preservation Commission, whose 11 members are all mayoral appointees, approved plans by Real Estate Equities Corp. to enlarge a building at 3 St. Marks Place that’s 20% larger than limits allowed by the area’s current zoning laws.

The plan was approved in June — although the $200,000 the developer paid to de Blasio lobbyist James Capalino and the law firm Kramer Levin Naftalis and Frankel LLP — were not reported in the press.

Capalino paid a $40,000 settlement to a state ethics watchdog in 2018 for improper contributions to de Blasio’s since-shuttered Campaign for One New York. Meanwhile, the mayor still owes Kramer Levin $300,000 for defending him against pay-to-play allegations.

The project began the city’s lengthy land review process known as ULURP last month. The plan was voted down at its first review point, the local community board, which said it would “not be harmonious with the character of the neighborhood.” It’s still awaiting a public hearing and vote by the City Planning Commission, a specific target of the lobbyists according to city records.

“This administration makes decisions based on the facts and nothing else,” said City Hall spokeswoman Jane Meyer.

Andrew Berman, director of the Greenwich Village Society for Historic Preservation, was skeptical of Meyer’s claim.

“Anyone who thinks this administration makes these decisions purely on the merits is simply burying their head in the sand,” Berman said.

“When lobbyists to whom the mayor is personally indebted and from whom he has received thousands in contributions are behind a project, you know you’re in trouble. This plan to increase the size of an office building on St. Marks Place by 20% is wrong from every angle,” Berman said.

Local resident Carolyn Ratcliffe called the process “very suspect.”

“I think that if de Blasio owes the law firm $300,000 that it’s sort of like a very smelly mackerel. You know most people would say that’s a conflict of interest,” Ratcliffe said.

The project’s fate depends local councilwoman Carlina Rivera, who has reservations about the building’s scale.

“I continue to share the same concerns that many in our community have brought up, including Community Board 3, regarding this project and its impact on the surrounding area, and I have not seen anything new presented that would make me consider it favorably as it proceeds through ULURP,” Rivera told The Post.

Capalino attorney Kenneth Fisher dismissed any conflicts of interest questions as “smoke and mirrors to cover the fact that the opponent doesn’t have good arguments on the merits.”

Reps for Kramer Levin and Real Estate Equities Corp. did not return messages.

Hempstead Long Island N.Y. Schools Superintendent Shimon Waronker.

Credit: Jeffrey Basinger, Newsday

Many readers, like myself, of the case of Shimon Waronker believe that the decision of the Supreme Court is a denial of free speech under the First Amendment.

Leagle.com:

WARONKER v. HEMPSTEAD UNION FREE SCHOOL DISTRICT

Reply Brief for Shimon Waronker by Erwin Chemerinsky

Summary:

The case detailed below involves Shimon Waronker, the superintendent of the Hempstead Union Free School District on Long Island. He was hired in 2017 to reform a district plagued by academic difficulties and corruption, court papers say.

Waronker hired investigators and a forensic accounting firm to root out corruption in the district, and he reported some findings to law enforcement. The school board placed him on administrative leave without pay in January 2018.

Waronker sued, alleging violations of his First Amendment free speech rights, 14th Amendment due-process rights, and of state whistleblower laws. He lost in a federal district court and in the U.S. Court of Appeals for the 2nd Circuit, in New York City, which both held that the superintendent's speech about school operations was part of his official duties and thus not protected under the First Amendment.

Supreme Court Declines Superintendent's Case on Reporting Corruption

By Mark Walsh April 20, 2020

The U.S. Supreme Court on Monday declined to hear the appeal of a school superintendent in New York state who alleges he was fired for reporting corruption in his new district to law enforcement as he was required to do.

Also, over the dissent of two justices, the high court also declined to hear the case of an individual who was blocked from suing the U.S. Department of Education for alleged violations of the Fair Credit Reporting Act.

The actions came on a busy day of orders and opinions for the court, which is soldiering on with its docket amid the contstraints of the coronavirus pandemic. The court has set May 11 as the date it will hear telephone arguments in Our Lady of Guadalupe School v. Morrissey-Berru (Case No. 19-267), about whether religious schools are exempt from civil rights laws for employment decisions involving lay teachers.

The denial in the New York state case involved Shimon Waronker, who was hired as the superintendent of the Hempstead Union Free School District on Long Island in 2017 to reform a district plagued by academic difficulties and corruption, court papers say.

The former superintendent's appeal in Waronker v. Hempstead Union Free School District (No. 19-893) argued that the 2nd Circuit's decision conflicted with a 2014 Supreme Court ruling, Lane v. Franks , which held that a public employee's truthful testimony in court subject to a subpoena was protected speech.

"Waronker was obligated by law to expose the corruption he saw in his school district," says the former superintendent's brief. "If a superintendent of schools sees illegal corruption and does not report it to law enforcement, he has breached his fiduciary duty and may well be an accessory after the fact."

The school district, in a brief urging the court not to take up the case, said that part of the superintendent's job duties were to communicate with outside agencies, and that his communications were not like the compelled testimony at issue in Lane.

"This case is a poor vehicle to provide more general guidance on the question of when speech that exposes corruption may be protected by the First Amendment," the district's brief said.

The justices declined Waronker's appeal without comment.

Our Lady of Guadalupe School v. Morrissey-Berru

Consolidated with:

St. James School v. Biel

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
19-267	9th Cir.	May 11, 2020 Tr.Aud.	TBD	TBD	TBD	OT 2019

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondent in this case.

Issue: Whether the First Amendment's religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions.

SCOTUSblog Coverage

Educational seminar: Debrief of Our Lady of Guadalupe School v. Morrissey-Berru (Katie Bart)
Argument analysis: Justices divided in debate over “ministerial exception” (Amy Howe)
Educational seminar: Preview of Our Lady of Guadalupe School v. Morrissey-Berru (Katie Bart)
Argument preview: Justices to consider what makes a minister a minister (Corrected) (Amy Howe)
Event announcement: SCOTUSblog oral argument seminars (Updated) (Kalvis Golde)
Court sets cases for May telephone arguments, will make live audio available (Amy Howe)
Justices postpone March argument session (Amy Howe)
Justices issue March argument calendar (Amy Howe)
Court fills out spring calendar with new grants (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Jul 18 2019	Application (19A80) to extend the time to file a petition for a writ of certiorari from July 29, 2019 to August 28, 2019, submitted to Justice Kagan.
Jul 19 2019	Application (19A80) granted by Justice Kagan extending the time to file until August 28, 2019.
Aug 28 2019	Petition for a writ of certiorari filed. (Response due September 30, 2019)
Sep 11 2019	Brief amicus curiae of The National Catholic Educational Association filed.
Sep 26 2019	Motion to extend the time to file a response from September 30, 2019 to October 18, 2019, submitted to The Clerk.
Sep 27 2019	Brief amici curiae of Professors Douglas Laycock, et al. filed.
Sep 27 2019	Brief amici curiae of Church of God in Christ, Inc. and Union of Orthodox Jewish Congregations of America filed. VIDED
Sep 27 2019	Brief amici curiae of State of Alaska, et al. filed.
Sep 30 2019	Brief amici curiae of The Ethics & Religious Liberty Commission of the Southern Baptist Convention, et al. filed.
Sep 30 2019	Brief amici curiae of Christian Legal Society et al. filed.
Sep 30 2019	Brief amici curiae of General Conference of Seventh-day Adventists, et al. filed.
Sep 30 2019	Brief amicus curiae of Stephen Wise Temple filed.
Sep 30 2019	Brief amicus curiae of National Legal Foundation filed.
Oct 01 2019	Motion to extend the time to file a response is granted and the time is extended to and including October 18, 2019.
Oct 17 2019	Motion to extend the time to file a response from October 18, 2019 to October 28, 2019, submitted to The Clerk.
Oct 18 2019	Motion to extend the time to file a response is granted and the time is further extended to and including October 28, 2019.
Oct 28 2019	Brief of respondent Agnes Morrissey-Berru in opposition filed.
Oct 28 2019	Waiver of the 14-day waiting period under 15.5 filed.
Oct 30 2019	DISTRIBUTED for Conference of 11/15/2019.
Nov 01 2019	Reply of petitioner Our Lady of Guadalupe School filed. (Distributed)
Nov 12 2019	Rescheduled.
Nov 26 2019	DISTRIBUTED for Conference of 12/13/2019.
Dec 18 2019	Petition GRANTED. The petition for a writ of certiorari in No. 19-348 is granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
Dec 18 2019	Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 19-267. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 19-267. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
Jan 27 2020	Blanket Consent filed by Petitioner, Our Lady of Guadalupe School. VIDED
Jan 31 2020	SET FOR ARGUMENT on Wednesday, April 1, 2020. VIDED
Feb 03 2020	Joint appendix filed. (Statement of costs filed.) VIDED
Feb 03 2020	Brief of petitioner Our Lady of Guadalupe School filed. VIDED
Feb 06 2020	Brief amicus curiae of Foundation for Moral Law filed. VIDED.
Feb 07 2020	Brief amici curiae of The Christian and Missionary Alliance, et al. filed. VIDED.
Feb 07 2020	Brief amicus curiae of Judicial Watch, Inc. filed. VIDED.
Feb 07 2020	Brief amici curiae of COLPA, et al. filed. VIDED.
Feb 07 2020	Brief amici curiae of State of Alaska, et al. filed (in 19-267).
Feb 10 2020	Brief amici curiae of InterVarsity Christian Fellowship/USA, World Vision Inc., Young Life filed. VIDED.
Feb 10 2020	Brief amici curiae of The Ethics & Religious Liberty Commission of the Southern Baptist Convention, et al. filed. VIDED.
Feb 10 2020	Brief amicus curiae of National Catholic Educational Association filed. VIDED.
Feb 10 2020	Brief amici curiae of Church of God in Christ, Inc. and Union of Orthodox Jewish Congregations of America filed. VIDED.
Feb 10 2020	Brief amicus curiae of Torah Umesorah filed. VIDED.
Feb 10 2020	Brief amicus curiae of Franciscan University of Steubenville filed. VIDED.
Feb 10 2020	Brief amicus curiae of United States Conference of Catholic Bishops filed. VIDED.
Feb 10 2020	Brief amici curiae of General Conference of Seventh-day Adventists and Jewish Coalition for Religious Liberty filed. VIDED.
Feb 10 2020	Brief amicus curiae of Asma T. Uddin filed. VIDED.
Feb 10 2020	Brief amicus curiae of Independent Women's Law Center filed. VIDED.
Feb 10 2020	Brief amicus curiae of National Right to Work Legal Defense Foundation, Inc. filed. VIDED.
Feb 10 2020	Brief amicus curiae of United States filed. VIDED.
Feb 10 2020	Brief amici curiae of American Civil Liberties Union, et al filed. VIDED.
Feb 10 2020	Brief amicus curiae of Partnership Schools filed. VIDED.
Feb 10 2020	Brief amici curiae of Stephen Wise Temple and Milwaukee Jewish Day School filed. VIDED.
Feb 10 2020	Brief amici curiae of Columbia International University and Sixth Mount Zion Missionary Baptist Church filed. VIDED.
Feb 10 2020	Brief amicus curiae of American Center for Law and Justice filed. VIDED.
Feb 10 2020	Brief amicus curiae of The Rutherford Institute filed. VIDED.
Feb 10 2020	Brief amicus curiae of Professor John D. Inazu filed. VIDED.
Feb 10 2020	Brief amici curiae of The Association of Classical Christian Schools, et al., filed. VIDED.
Feb 10 2020	Brief amici curiae of Senator Mike Lee, et al. filed. VIDED.
Feb 10 2020	Brief amicus curiae of Center for Constitutional Jurisprudence filed. VIDED.
Feb 10 2020	Brief amici curiae of Christian Legal Society, et al. filed. VIDED.
Feb 10 2020	Brief amicus curiae of Ethics and Public Policy Center filed. VIDED.
Feb 10 2020	Brief amicus curiae of Inner Life Fund filed. VIDED.
Feb 10 2020	Brief amici curiae of The Church of Jesus Christ of Latter-day Saints, et al. filed. VIDED.
Feb 10 2020	Brief amici curiae of American Jewish Committee and United Synagogue of Conservative Judaism filed. VIDED.
Feb 10 2020	Brief amicus curiae of First Liberty Institute filed. VIDED.
Feb 10 2020	Brief amici curiae of Council for Christian Colleges and Universities and Forty Individual Religious Colleges and Universities filed. VIDED.
Feb 10 2020	Brief amici curiae of Billy Graham Evangelical Association, et al. filed. VIDED.
Feb 10 2020	Brief amici curiae of Professors Douglas Laycock, et al. filed. VIDED.
Feb 10 2020	Brief amicus curiae of United States filed. VIDED. (Distributed)
Feb 19 2020	CIRCULATED
Feb 19 2020	Record requested from the U.S.C.A. 9th Circuit.
Mar 04 2020	Brief of respondents filed. VIDED. (Distributed)
Mar 04 2020	The record of the USCA 9th Circuit is available on Pacer.
Mar 10 2020	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. VIDED.
Mar 10 2020	Brief amici curiae of The Freedom From Religion Foundation, et al. filed. VIDED. (Distributed)
Mar 11 2020	Brief amici curiae of Center for Inquiry, Inc., et al. filed. VIDED. (Distributed)
Mar 11 2020	Brief amici curiae of National Women's Law Center, et al. filed. VIDED. (Distributed)
Mar 11 2020	Motion of Virginia, et al. for leave to participate in oral argument as amici curiae and for divided argument filed. VIDED.
Mar 11 2020	Brief amici curiae of Virginia, et al. filed. VIDED. (Distributed)
Mar 11 2020	Brief amici curiae of National Employment Lawyers Association, et al. filed. VIDED. (Distributed)
Mar 11 2020	Brief amici curiae of Clergy and Laity United for Economic Justice and Bet Tzedek filed. VIDED. (Distributed)
Mar 11 2020	Brief amici curiae of CHILD USA, et al. filed. VIDED. (Distributed)
Mar 16 2020	ORAL ARGUMENT POSTPONED. VIDED.
Mar 23 2020	Motion of Virginia, et al. for leave to participate in oral argument as amici curiae and for divided argument DENIED. VIDED.
Mar 23 2020	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. VIDED.
Apr 03 2020	Reply of petitioners filed. VIDED. (Distributed)
Apr 13 2020	Argument to be rescheduled for May 2020.
Apr 15 2020	RESCHEDULED FOR ARGUMENT on Monday, May 11, 2020. VIDED.
May 11 2020	Argued. For petitioners: Eric C. Rassbach, Washington, D. C.; and Morgan L. Ratner, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.). For respondents: Jeffrey L. Fisher, Menlo Park, Cal. VIDED.

NY Judiciary Law §470 has been introduced, which would repeal the law which states:

"Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002])."

In a world of internet access and pandemics, it makes sense to look at repealing this law, which may happen in the near future. A bill has been introduced in the State Assembly in May 2020 to do just that.

It's time.

Betsy Combier,
betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Legislation to Repeal Judiciary Law Section 470 Introduced in State Assembly

by Christian Nolan

A bill introduced this week in the state Assembly would repeal Judiciary Law Section 470, which requires lawyers admitted to practice in New York – but residing in other states – to maintain a physical law office in New York State.

Assemblyman David Weprin has sponsored the legislation that was introduced in the Assembly’s Judiciary Committee. A similar bill was introduced last year by State Senate Judiciary Committee Chair Brad Hoylman.

Nearly 25 percent of NYSBA members reside or practice outside the state of New York.

“In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose,” said NYSBA President Hank Greenberg. “That is now more clear than ever with so many lawyers working remotely in the midst of the coronavirus pandemic.”

In January 2019, NYSBA’s House of Delegates approved a resolution calling for the outright repeal of the law and the report and recommendations of its Working Group on Judiciary Law §470, which was appointed in 2016 to address concerns from members.

The law was enacted in 1909 because the New York State Legislature believed at the time that a nonresident attorney without an office in New York would not be amenable to service of process.

In 2009, Ekaterina Schoenefeld, a New Jersey resident who was admitted to practice both in New York and New Jersey, challenged the constitutionality of the law in federal district court.

In Schoenefeld v. State of New York, the U.S. District Court of the Northern District of New York ruled in 2011 that Section 470 violates the Privileges and Immunities Clause of the U.S. Constitution. The state Attorney General appealed and during the appeal process in 2014, the U.S. Court of Appeals for the Second Circuit asked the state Court of Appeals to clarify the meaning of Section 470.

In a 2015 opinion written by then-Chief Judge Jonathan Lippman, the state Court of Appeals replied, “We hold that the statute requires nonresident attorneys to maintain a physical office in New York.”

By 2016, the Second Circuit upheld Section 470, holding that the statute did not violate the Privileges and Immunities Clause. Schoenefeld filed a petition for certiorari to the U.S. Supreme Court, which was denied in 2017.

A ruling in the NY Court of Appeals in February 2019 gave a new perspective:

No Office, No Problem: Court of Appeals Holds that Violation of Judiciary Law § 470’s “Physical Office” Requirement Does Not Render Action a Nullity, But Could Subject Attorney to Discipline

In a unanimous decision authored by Judge Michael Garcia, the Court of Appeals today resolved an important issue of first impression implicating multi-state practice in New York—“whether an action, such as filing a complaint, taken by a lawyer duly admitted to the bar of this State but without the required New York office is a nullity.”

In Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., the Court held that the failure of a nonresident attorney to comply with the physical office requirement in Judiciary Law § 470 at the time an action is commenced does not render the action a nullity. The opinion resolved a split between the First Department, which has held that any action taken by a nonresident attorney who fails to maintain a physical office in New York as required under Judiciary Law § 470 is a nullity, and the Second and Third Departments, which have permitted nonresident attorneys to cure a Judiciary Law § 470 violation by obtaining an attorney with a New York office or by application for admission pro hac vice by appropriate counsel.

The Court noted that the rule adopted by the Second and Third Departments stems from its prior decision in Dunn v Eickhoff (35 NY2d 698, 699 [1974]) where it held that “[t]he disbarment of a lawyer creates no ‘nullities,’ the person involved simply loses all license to practice law.” The Court held that “given [its] holding in Dunn, it would be incongruous to conclude that, unlike the acts of a disbarred attorney, actions taken by an attorney admitted to the New York bar who has not satisfied Judiciary Law § 470’s office requirement are a nullity.” Thus, the Court adopted the Second and Third Department rule and concluded that “the party can cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.”

The Court, however, clarified that a Judiciary Law § 470 violation is not without consequences. The attorney who violates section 470 by practicing in the State without a physical office could face discipline. The court held that “[w]here further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy and the individual attorney may face disciplinary action for failure to comply with the statute.” “This approach,” the court concluded, “ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470.”

Important Practice Tip

Beyond clarifying the effect of a nonresident attorney’s violation of the physical office requirement in Judiciary Law § 470, the Court’s decision in Arrowhead includes a notable practice point that should not be overlooked.

In its motion for leave to appeal, Arrowhead limited its appeal “to the extent that the Appellate Division failed to reverse and remand the Order and Judgment of Supreme Court dismissing [its] Complaint as a ‘nullity’” for the Judiciary Law § 470 violation. The Judiciary Law § 470 dismissal, however, only related to the breach of contract and fiduciary duty claims that survived Defendant’s first motion to dismiss. By limiting its appeal to the distinct Judiciary Law § 470 issue, and not appealing the dismissal of its other claims, Arrowhead precluded the Court from reviewing the propriety of Defendant’s first motion to dismiss (see Quain v Buzzetta Constr. Corp, 69 NY2d 376, 380 [1987]). Thus, the Court granted defendant’s motion to strike the portion of Arrowhead’s brief addressed to defendant’s first motion to dismiss.

It is unclear whether Arrowhead’s decision to limit the appeal was strategic. Certainly, crystalizing an issue of first impression doesn’t hurt a party’s chances of having its motion for leave to appeal granted. But, by limiting the appeal, you give up other issues that could have otherwise been raised. Attorneys should be wary of the Court’s rule in Quain and only limit their appeals if they are willing to relinquish their rights to challenge other issues in the case.

And one more thing. The Court would do well to explain the practical impacts of its decisions to the parties and the bar in general in as plain of terms as possible. Here, the Court’s decretal paragraph reads:

To aid the parties and trial court, adding a clarifying clause to the decretal saying expressly that only the claims dismissed for the Judiciary Law § 470 violation remain to be litigated on remand would go a long way. Although this may appear straightforward in this case, many times the Court’s decisions on jurisdiction and reviewability leave parties scratching their heads about what to do next to fix the issues. The Court should try to help address those issues in its decisions to the best it can.

The Court of Appeals’ opinion can be found here.

Another Stern Reminder re: Judiciary Law § 470 is Alive and Well

By Farrell Fritz P.C. on March 1, 2018

Posted in Motions

Frequent readers of this blog may recall my post from the end of last year in which I highlighted a decision of the Appellate Division, First Department affirming a decision of New York County Commercial Division Justice Shirley Werner Kornreich, that examined the application of Judiciary Law § 470. For those needing a refresher, Judiciary Law § 470 provides that an attorney residing in “an adjoining state” may practice New York – without moving for pro hac admission – only if both (I) admitted in New York and, (ii) more crucially to the Arrowhead Capital decision, maintains a physical law office in New York. In Arrowhead Capital, the Appellate Division affirmed Justice Kornreich’s dismissal of the plaintiff’s complaint due entirely to its non-resident lawyer’s failure, in violation of Judiciary Law § 470, to maintain an office in New York.

Proving that this is not nearly as esoteric an issue as you might think is Platinum Rapid Funding Group, Ltd. v H D W of Raliegh, Inc., a recent decision out of the Nassau County Supreme Court (Hon. Jerome C. Murphy). While not a Commercial Division decision, Platinum Rapid Funding is valuable to readers of this blog for its additional analysis of Judiciary Law § 470. Before the Court in Platinum Rapid Funding was the plaintiff’s motion brought pursuant to Judiciary Law § 470, seeking disqualification of defendants’ counsel (the firm of Higbee & Associates [“Higbee”] and lawyer Rayminh L. Ngo [“Ngo”]) for failing to maintain an office for the transaction of law in New York, and dismissing the defendants’ counterclaims and affirmative defenses on the same basis. The court’s holding that defendants’ counsel did not maintain a physical office in the State of New York at the time they appeared in the action, relied on the following evidentiary findings:

The defendants’ Verified Answer identified the principal office for Higbee as being in Santa Ana, California;
Ngo identified himself not as an associate or partner of Higbee, but as the principal of his own law practice based in Salt Lake City, Utah;
While Ngo asserted in opposition that he is duly admitted to practice in New York and was serving of counsel to Higbee, which he claimed was a “multijurisdictional law firm based in California” that purportedly leases office space on Wall Street and in Syracuse, neither Ngo nor Higbee asserted that there were attorneys or law firm staff in either location;
The lease agreements subsequently submitted by Ngo as proof of the two New York office locations failed to establish that they were maintained by Higbee at the time Ngo and Higbee appeared in the action; and
The court “[could not] overlook the fact that the defendants . . . failed to offer any competing evidence against the sworn affidavits of . . . process servers who attest[ed] that they physically went to [the Wall Street and Syracuse] addresses . . . and confirmed that neither Ngo nor Higbee had physical offices at th[ose] locations.”

The court further instructed that disqualification under these circumstances is not permissively left to the court’s discretion, but rather a finding that counsel’s violation of Judiciary Law § 470 mandates immediate disqualification from continued representation in the action. Platinum Rapid Funding offers another stern reminder to non-resident lawyers attempting to practice in New York State courts: be sure to maintain a physical office in New York at the time you first appear in a given action or else be prepared to be disqualified.

General Michael Flynn

Editorial of The New York Sun | May 19, 2020

Congratulations are in order to General Michael Flynn and his attorney, Sidney Powell, for filing with the federal appeals court in Washington D.C. an emergency petition for a writ of mandamus. It’s an extraordinary writ — but one of the most venerable in American and Anglo-Saxon law. Their aim, sketched in crystalline prose, is to rescue the general from which the petition calls a “Kafkaesque nightmare.” We certainly wish them luck.

It’s not entirely clear to us — no offense to Ms. Powell — whether Franz Kafka could have come up with a plot as nefarious as the one by which the FBI brass and certain rogue elements within the Justice Department managed to entangle General Flynn.

One of Kafka’s works Ms. Powell quotes in the petition, after all, is the dystopian novel “The Trial,” which even Kafka failed to finish. Ms. Powell may be made of sterner stuff.

What her petition seeks is an order from the United States Circuit Court of Appeals for the D.C. circuit ordering the district court to grant immediately the government’s motion to dismiss the case against General Flynn, undoing his guilty plea. The filing reprises the way the government entrapped the general and got him to plead guilty to a crime he didn’t commit. And, in fact, for deeds that in the circumstances weren’t a crime.

All that has by now been widely reported, particularly following the motion by the United States asking that the case be dismissed because of errors or malfeasance by America’s agents and prosecutors. The petition for the writ of mandamus also takes on the errors of the district judge, Emmet Sullivan, for issuing an order inviting amicus briefs and appointing a former judge to take on the case against the government.

In doing that, the general’s petition suggests, the judge has taken on the powers of the prosecutor, powers granted by the Constitution to the executive branch. That’s a violation of separated powers. The petition also addresses the district court’s breach of the cases and controversies clauses, via which the Constitution curbs the courts by granting them the power to decide only active cases and controversies.

That limitation on the power of the courts means that once the government moves to drop a case, no case or controversy remains. The courts have no further power to act.

Ms. Powell’s petition cites precedent of the District of Columbia Circuit itself and also of the Supreme Court. She cites a recent opinion by an alumna of the circuit now on the Supreme Court, Justice Ruth Bader Ginsburg. That underlines the fact that this is not a left-right issue.

Which brings us back to Kafka, the World War I-era writer from Prague who invented bizarre plots. General Flynn, Ms. Powell argues, “has been subjected to deception, abuse, penury, obloquy, and humiliation. Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice.”

The general, the petition argues, “has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit — indeed, to a crime that could not exist.” Then, “having at last, through the relentless determination of his current counsel, brought the truth to light,” he learns that the judge has decided to, as one judge once put it, play prosecutor.

The petition references not only Kafka’s “The Trial,” which Orson Welles made into a movie starring Anthony Perkins. The petition also cites a short-story, “In the Penal Colony.” In it Kafka imagines a contraption for meting out justice that tortures the condemned by inscribing on his body the text of the statues he has broken. Not a bad metaphor for the attempt at destroying General Flynn’s reputation. It’s a case that demands to be ended by a writ of mandamus from the court above.

Republican attorneys general back Barr's bid to drop case against Flynn

Florida Attorney General to federal judge: Drop the Michael Flynn case: Ashley Moody is one of 15 state attorneys general to sign onto a supporting legal brief.

U.S. judge puts Justice Department’s move to drop charges against Michael Flynn on hold

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

DOJ Charges Philadelphia Election Official with Stuffing Ballot Box

Official voted over and over while he thought the ‘coast was clear’

Press release:

Department of Justice

Office of Public Affairs
FOR IMMEDIATE RELEASE
Thursday, May 21, 2020
Former Philadelphia Judge of Elections Convicted of Conspiring to Violate Civil Rights and Bribery

A former Judge of Elections has been convicted for his role in accepting bribes to cast fraudulent ballots and certifying false voting results during the 2014, 2015, and 2016 primary elections in Philadelphia.

Domenick J. Demuro, 73, of Philadelphia, Pennsylvania, pleaded guilty during a sealed proceeding on March 16, 2020, before U.S. District Judge Paul S. Diamond to conspiring to deprive persons of civil rights, and using interstate facilities in aid of bribery. The court unsealed the matter today. Sentencing is scheduled for June 30, 2020.

During his guilty plea hearing, Demuro admitted that while serving as an elected municipal Judge of Elections, he accepted bribes in the form of money and other things of value in exchange for adding ballots to increase the vote totals for certain candidates on the voting machines in his jurisdiction and for certifying tallies of all the ballots, including the fraudulent ballots. Demuro further admitted that a local political consultant gave him directions and paid him money to add votes for candidates supported by the consultant, including candidates for judicial office whose campaigns actually hired the consultant, and other candidates for various federal, state and local elective offices preferred by that consultant for a variety of reasons. Demuro also admitted that the votes he added in exchange for payments by the political consultant increased the number of votes fraudulently recorded and tallied for the consultant’s clients and preferred candidates, thereby diluting the ballots cast by actual voters.

“This defendant abused his office by engaging in election fraud for profit,” said Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division. “Today’s conviction makes it clear that the Department of Justice will do all in its power to protect the integrity of elections and maintain public confidence in all levels of elected government.”

“Demuro fraudulently stuffed the ballot box by literally standing in a voting booth and voting over and over, as fast as he could, while he thought the coast was clear. This is utterly reprehensible conduct. The charges announced today do not erase what he did, but they do ensure that he is held to account for those actions,” said U.S. Attorney William M. McSwain of the Eastern District of Pennsylvania. “Voting is the cornerstone of our democracy. If even one vote is fraudulently rung up, the integrity of that election is compromised. I want the public to know that this investigation is active and ongoing, and my Office is taking every possible step that we can to ensure the integrity of the upcoming primary and general elections in the nine counties of the Eastern District of Pennsylvania.”

“Domenick Demuro put a thumb on the scale for certain candidates, in exchange for bribes,” said Special Agent in Charge Michael J. Driscoll of the FBI’s Philadelphia Division. “As public trust in the electoral process is vital, the FBI’s message today is clear: election interference of any kind, by hostile foreign actors or dishonest local officials, won’t be tolerated. This is an active, ongoing investigation and we're asking anyone with information on election fraud to contact the FBI.”

“The citizenry of the City of Philadelphia, as well as this Commonwealth and these United States, needs to be confident in the integrity of our elections,” said Captain Leo Hannon, Director of the Pennsylvania State Police, Special Investigations Division. “As this investigation clearly illustrates, the Pennsylvania State Police will relentlessly pursue any breach of the sacred trust bestowed upon our public officials. Our agency is proud to partner with the Federal Bureau of Investigation, the United States Attorney’s Office, and the United States Department of Justice as a whole to root out corruption at any level of our government. Matters of public corruption and public integrity have been, and shall remain, a top priority of the Pennsylvania State Police.”

The FBI and the Pennsylvania State Police investigated the matter. Richard C. Pilger, Director of the Election Crimes Branch in the Criminal Division’s Public Integrity Section, and Assistant U.S. Attorney Eric L. Gibson of the Eastern District of Pennsylvania are handling the prosecution.

The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.
Topic(s):
Civil Rights
Public Corruption
Component(s):
Criminal Division
Criminal - Public Integrity Section
USAO - Pennsylvania, Eastern
Press Release Number:
20-472

Credit...Sam Hodgson for The New York Times

Judge Is Ordered to Explain Handling of Flynn Case as F.B.I. Announces Review

In the latest twists in a highly politicized case, Michael Flynn’s lawyers are trying to force a judge to end the case immediately, and the F.B.I. will weigh whether it committed misconduct.

By Charlie Savage, NY TIMES, May 22, 2020

WASHINGTON — A federal appeals court panel has ordered a trial judge to explain why he is hesitating to grant the Justice Department’s request that he dismiss the criminal case against President Trump’s former national security adviser Michael T. Flynn.

Christopher A. Wray

The order came as the F.B.I. director, Christopher A. Wray, announced on Friday that the bureau would conduct an internal review of the investigation into Mr. Flynn, including to “determine whether any current employees engaged in misconduct” and evaluate whether the bureau should change any procedures.

The moves were the latest twists in a bizarre legal and political drama that has enveloped the prosecution of Mr. Flynn, who twice pleaded guilty to lying to F.B.I. agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the United States.

“Everything about this case is unusual,” said David A. Sklansky, a Stanford professor of criminal law. “It’s unusual to ask a higher court to direct a lower court to do something before the lower court has had a chance to make up its own mind in the first instance — and that includes whether to dismiss a case.”

Mr. Flynn’s case has become a political cause for Mr. Trump and his supporters. This month, at Attorney General William P. Barr’s direction, the Justice Department asked the federal judge overseeing the case, Emmet G. Sullivan, to drop the matter, using as justification a disputed legal theory that Mr. Flynn’s false statements were immaterial to any legitimate investigation.

Mr. Barr had earlier intervened to seek a more lenient sentence for another Trump associate prosecuted in connection with the Russia investigation, Roger J. Stone Jr., than prosecutors had sought. In both cases, Mr. Barr’s moves prompted accusations that he was politicizing the department by showing special favor to presidential favorites.

Judge Sullivan responded to the abrupt reversal in the Flynn case by appointing a former mafia prosecutor and retired federal judge in Brooklyn, John Gleeson, to argue against the Justice Department’s new position. He also asked Mr. Gleeson to evaluate whether Mr. Flynn committed criminal contempt of court in the form of perjury, apparently because Mr. Flynn has made contradictory factual statements under oath in court, by admitting he knowingly lied and then saying he did not lie.

On Tuesday, Mr. Flynn’s defense lawyer, Sidney Powell, filed a petition with the appeals court seeking an order that would short-circuit Judge Sullivan’s review. She argued that her client had been mistreated and that the judge was legally required to drop a case if that was what the Justice Department decided to do.

Mr. Barr has made clear that he considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign. He has commissioned John H. Durham, the United States attorney in Connecticut, to re-examine that investigation, and in January, he assigned another prosecutor, Jeff Jensen, the U.S. attorney in St. Louis, to go over the Flynn case files.

After Mr. Jensen’s review, the department disclosed to Ms. Powell several documents she has used to portray her client as a victim. Many experts in criminal law have disputed the notion that he was treated differently in any legally meaningful sense than countless other people under investigation who lack presidential ties and receive no special lenity.

The disclosures included notes by a former senior F.B.I. official musing about whether the goal in questioning Mr. Flynn was to get him to tell the truth, or to get him to lie so he could be fired or prosecuted. It also disclosed materials showing that James B. Comey, then the F.B.I. director, violated bureaucratic etiquette by dispatching the agents to interview Mr. Flynn without going through the office of the White House counsel.

And the review also disclosed internal F.B.I. files showing that the bureau had been about to close an investigation into Mr. Flynn specifically, having not found evidence that he was a Russian asset, when the question arose about why Mr. Flynn was repeatedly lying to colleagues like Vice President Mike Pence about his conversations with the ambassador.

Because the Flynn investigation was still open as a bureaucratic matter, the F.B.I. agents used it as a basis to ask Mr. Flynn about his discussions with the ambassador. Before Mr. Barr’s intervention, the Justice Department had also portrayed the interview as separately justified by and material to its umbrella investigation into Russian election interference.

While Mr. Wray was not at the F.B.I. when agents interviewed Mr. Flynn, Mr. Trump has criticized him on and off since appointing him in 2017. Mr. Wray has been under renewed political pressure by Mr. Trump over the recent disclosures in the Flynn case, and the announcement that he has begun his own investigation, by itself, could function as a release valve.

The details of the inquiry, as described in an F.B.I. news release, appear to be limited and largely duplicative, however. The F.B.I.’s Inspection Division will conduct a review that will “complement” the review already underway by Mr. Jensen, largely using the same agents already assisting him, and his efforts will “take priority” if the two conflict.

The Inspection Division lacks the authority to impose disciplinary action against people no longer employed by the F.B.I., which covers most of the major players in the Flynn case. A few, however, including the case agent, William Barnett, and one of the agents who interviewed Mr. Flynn, Joe Pientka, are still at the bureau.

Ms. Powell’s petition to the appeals court, as has been her practice, was littered with hyperbolic language unusual for a legal document. The request for an immediate intervention initially appeared to be a long shot since Judge Sullivan has not declined to dismiss the case, but rather is conducting a review before making a decision. Mr. Barr had acknowledged in an interview with CBS News that dropping the case is not automatic and the judge “does have a say.”

But cases are randomly assigned to judges on the circuit, and Ms. Powell’s petition drew what may be an unusually favorable panel, the order on Thursday revealed.

Two of the three judges on it — Karen L. Henderson, an appointee of former President George Bush, and Neomi Rao, an appointee of Mr. Trump — have proved more willing than the majority of their colleagues to interpret the law in Mr. Trump’s favor in other politically charged cases, like disputes over congressional subpoenas for his financial records and whether Congress may see secret grand-jury evidence from the Russia investigation.

The third judge assigned to the Flynn panel, Judge Robert L. Wilkins, is an Obama appointee. He apparently voted to let stand a panel ruling against Mr. Trump in the case over a House subpoena for Mr. Trump’s financial records.

Should the panel issue an order to Judge Sullivan that he drop the Flynn charge without further consideration, it would not necessarily be the end of the matter, according to Mr. Sklansky and another criminal law professor, Samuel W. Buell of Duke University.

For one thing, they said, Judge Sullivan is likely to appoint a lawyer to represent him before the appellate panel, and that lawyer could ask the full appeals court or the Supreme Court to reverse any order shutting down his review.

Mr. Sklansky also said it would not necessarily take a decision by Judge Sullivan to push the matter further. He pointed to a rarely invoked rule that permits the full appeals court to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”

On the other hand, if the three-judge panel decides against issuing an order to Judge Sullivan — or is overruled by the full court — Mr. Flynn’s legal team can appeal, too.

The immediate intervention the Flynn team is seeking — called a writ of mandamus — is disfavored and is supposed to be reserved for rare occasions “when a judge is off the reservation about the law,” Mr. Buell said. The general rule is that appeals courts are supposed to wait to intervene until a case has been decided and one side appeals.

“The idea of mandamusing a judge to tell him who he is or isn’t allowed to hear from when he’s deciding an issue is ridiculous,” Mr. Buell said. “But with what’s going on in the federal judiciary right now, I’ve given up predicting what ridiculous issues will and won’t be treated as nonridiculous.”

FBI Director Wray orders internal review of Flynn investigation

Lack of Judicial Accountability Has Turned America into a Predatory Nation

RICHARD LEE ABRAMS, CityWatch,

1 MAY 2020

ONE MAN’S OPINION-It took a long time for our country to devolve to such a low level that we have become one of the world’s most corrupt and poorly run nations.

When I was young, angry people might shake their fists, shouting, “I’ll sue you.” But they had no intention of going to court because a neighbor refused to give back their son’s softball which had gone into their yard. The invective “I’ll sue” had cultural significance. We believed that in America fairness reigned and injustice, no matter how small, would be rectified. Today, most people know that the powerful have made the courts into their stomping grounds where the little guys get trampled.

It is not only minorities who are railroaded off to prison or old people who have their property stolen by judges and conservators. Because judges have no accountability, they can do whatever they please. Judges are the only public officials with no accountability, and they want to keep it that way. The fact that we allow judges to indulge their whims is our collective shame.

The Rule of Law vs Whim of Crooks

The rule of law requires intelligent fair-minded judges who set aside their personal biases and make certain that the facts of a situation are correctly applied to the legal principles. It’s not an easy job. Legal thinking requires a high IQ, which many judges lack, and it requires extensive education. One cannot determine whether “a fact is being introduced for the truth of the matter stated” without both a formal legal education and considerable experience making the right call in a couple seconds.

A Decent Society Requires the Rule of Law

“The rule of law signifies the constraint of arbitrariness in the exercise of [judicial] power. . .It means that the agencies of official coercion should, to the extent feasible, be guided by rules -- that is, by openly acknowledged, relatively stable, and generally applicable statements. . .The evils to be retarded are caprice and whim, the misuse of government power for private ends, and the unacknowledged reliance on illegitimate criteria of selection. The goals to be advanced are regularity and evenhandedness in the administration of justice and accountability in the use of government." -- John Calvin Jeffries, Jr., Legality, Vaugueness and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 212 (1985).

With a judge’s control over a courtroom comes great power and dishonest judges have perverted the system to their own personal benefit. The last thing a judge wants is any accountability. We can assess the depravity of our current legal system by its lack of judicial accountability. No honest judicial system would allow its judges to viciously abuse the populace.

The Appeal Process Has Become Worthless

When the judicial system itself has become a corrupt institution, the appeal process is worthless. The purpose of the judicial system has become the care and feeding of judges. If the facts are against what the judge wants, he simply alters the facts. If the facts and law are not to the judge’s liking, he’ll go find his own lawyer and impose him on the plaintiff as Justice Scalia did in Great West v Knudson, 534 U.S. 204 (2002). If the judge dislikes the fact that the Widow M is not insolvent so as to justify the court’s theft of her property, Judge Lippitt simply denies that the widow’s attorney is her attorney. There is no fact so significant and no law so relevant that judges will not ignore them to do whatever it is that the judges desire. The only constraint of judicial abuse is a more powerful judge who can benefit from a different outcome.

The Commission on Judicial Performance’s Role Is to Prevent Judicial Accountability

Due to the doctrine of judicial immunity, a person who has had his/her life destroyed by a judge’s criminal conduct will find that a complaint to the CJP is a fool’s choice. Its function is to protect the judges -- not to safeguard the system from corruption. All a judge has to do in order to cloak herself with judicial immunity is write her crime into a court order. Simply put, the role of the CJP is to protect corrupt judges.

A Corrupt Judiciary Dooms a Republic

The purpose of a Republic is to secure the individual inalienable rights including Life, Liberty, and the Pursuit of Happiness. But a judiciary in which the whim and passions of judges are controlling has no respect for inalienable rights. Visit Los Angeles court rooms and peak behind the curtains. You’ll find no kindly Wizard of Oz. Rather, you’ll find avaricious predators stuffing their pockets full of gelt and letting the rich and power run rough shod over everyone else. Those who are not active thieves stand silently by. Those who are not criminals are too cowardly to stop the criminals.

How Long Can a Society Exist Without Judicial Accountability?

The Third Reich lasted twelve years and four months. The Soviet Union lasted 69 years from 1922 to 1991, The Confederacy lasted four years, while North Korea has lasted since 1948. How long do we have?

A Corrupt Judicial System Reflects the General Society

The most effective restraint on an institution is public sentiment. Americans revere and bow low before predators. As Matt Damon said about Harvey Weinstein, “within five minutes you knew he was a asshole.” Donald Trump is admired by millions because he brags about grabbing women by the pussy and he calls cheaters “smart businessmen.” Judge Judy is a vicious predator who shows no more respect for her victims than Weinstein did for ingenues. The Soviet Union crumbled when Boris Yeltsin stood on the tank and the military did not shoot him on the spot. The Russian people had had enough of predatory thieves. Donald Trump, on the other hand, could stand on top of a tank and declare his Thousand Year Reich and he would receive cheers. In the final analysis, a society gets the corruption and oppression it wants. We have no judicial accountability because Americans want no limits to be placed on predators. And Americans no longer recognize the name of Martin Niemöller.

(Richard Lee Abrams is a Los Angeles attorney and a CityWatch contributor. He can be reached at: Rickleeabrams@Gmail.com. Abrams’ views are his own and do not necessarily reflect the views of CityWatch.) Image: ProPublica Edited for CityWatch by Linda Abrams.

No one has the right to stop you from saying your opinion about anything unless what you are saying is knowingly false and said with the intent to harm, distress, harass, or destroy another person's rights.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Idle Chatter: 3 Big Misconceptions About Section 230 Of The Communications Decency Act

Regardless of one’s political persuasion, most of us can agree that First Amendment expression is, indeed, a bedrock constitutional principle.

by Tom Kulik, June 1, 2020, Above The Law

First Amendment expression is a significant pillar of our constitutional freedoms in the United States, and when it comes to free expression online, the protections for vigorous debate over the internet should be no exception. Now, more than ever, online platforms such as Facebook and Twitter are providing incredible means through which to share not only ideas but news and events. The interesting fact is that none other than President Donald Trump himself enjoys using Twitter to directly reach his more than 81 million followers. His tweets, however, are not without controversy, and it seems some of them have now fanned the flames of “censorship” of content (or users) by online platforms, claiming that the social media platform (and others) may be engaging in activity that is eroding the very bedrock principle of First Amendment expression. Whether you agree with him or not, the underlying premise and its context is worth a look, and may even open your eyes to seeing online content liability in a new light.

How this issue came to a head recently is no surprise. After Trump posted a number of tweets on Twitter about potential fraud in mail-in voting, Twitter apparently added an alert within those tweets encouraging users to “[g]et the facts about mail-in ballots.” This drew an immediate and intense response from Trump against Twitter, claiming that “@Twitter is now interfering in the 2020 Election” by relying on fact-checking from “fake news” CNN and The Washington Post. Seems like some robust free expression to me, but the interesting point here is that Twitter itself acknowledged that Trump’s tweets did not violate Twitter’s terms of use and policies, yet Twitter felt obliged to add the warning label. Trump was less than amused — this interaction prompted him to recently sign an executive order directing federal agencies to alter their interpretation of the liability protections afforded internet service providers under Section 230 of the Communications Decency Act. Interesting, indeed — but for different reasons than you may think.

To those who are not familiar, Section 230 of the Communications Decency Act of 1996 helped shape the internet as it stands today. Under Section 230(c)(1), “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In essence, Section 230 protects internet service providers from being treated like publishers, affording them immunity from liability for the content that is posted on their platforms. Further, Section 230 allows such providers to avoid liability for taking action “in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” What does this mean? It means that such providers can regulate certain content that meets such criteria without fear of civil liability for removing it.

From my experience with Section 230 since its inception, I find the current debate striking because many policymakers (and many lawyers) seem to misunderstand certain aspects of Section 230 and its application that are affecting the debate. Here are the three biggest misconceptions regarding Section 230 that everyone needs to keep in mind:
Don’t Get Caught Up With “Publisher” And “Platform.” Given the text of Section 230(c)(1) and the jurisprudence prior its enactment, it is easy to fall into the trap of seeing a legal distinction between “platform” and “publisher” and the extent of control over the content; however, this would be in error. The focus should remain on whether a platform is a “speaker” of the content. For example, if someone posted a defamatory reaction (i.e., comment) to an article posted by a staff writer for Yahoo News, then Yahoo News would not be liable for such defamation simply because it posted the comment. On the other hand, if any of Yahoo’s news editors or staff writers posted defamatory content on the Yahoo News website, then Yahoo News could be held liable for such posting because they would be the “information content provider.” For lack of better words, the online platform must not be the originator of the defamatory content at issue for Section 230 immunity to apply.

Copyrights Are NOT The Issue In Section 230. The fact that an internet service provider may store content it does not know to be infringing or otherwise “take down” such content under its policies and procedures and not be held liable for doing so should not be confused with Section 230 immunity. The Digital Millennium Copyright Act (DMCA), and more specifically, Section 512, not only addresses immunity for the transmission and caching of infringing content through automated means, but the requirements for receiving immunity from liability for the storage of infringing content it does not know to be infringing that resides on the platform. Of course, the DMCA is a lot more involved than the thumbnail reference above, but the point is that the DMCA is addressing immunity from liability for actions taken with respect to copyright infringement. Section 230, however, deals with immunity from liability for the posting of defamatory, obscene, excessively violent content, etc., whether or not such material is constitutionally protected.

Section 230 Does NOT Provide Blanket Immunity. Section 230 definitely provides very broad immunity (by design), however, it is not blanket immunity. Section 230 does not, in fact, protect an internet service provider against criminal prosecution under federal statutes. For example, Section 230 does not grant immunity to websites that facilitate and profit from revenge pornography and sextortion, among others. With the enactment of the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA) signed by Trump in 2018, it became illegal for internet service providers to knowingly assist, support, or facilitate sex trafficking as well. As a result, Section 230 does nothing to immunize an internet service provider from criminal prosecution under such relevant federal statutes.

Regardless of one’s political persuasion, most of us can agree that First Amendment expression is, indeed, a “bedrock” constitutional principle. Does this mean that Twitter’s actions on Trump’s tweets merit a remake of Section 230? At best, Twitter’s action seems ill-advised because it is not something consistently applied across the entire service — the notion of a social media platform potentially “taking sides” is repugnant to our notions of justice and fair play and undermines legitimate discourse. That said, do these facts merit a re-evaluation of Section 230 immunity? Given the broad interpretation of Section 230 by the courts since the law’s enactment, there is a good chance that more restrictive interpretation of Section 230 in line with Trump’s executive order will face an uphill constitutional battle. Perhaps that is the point. Inquiring minds will definitely differ, but the point here is that any debate should maintain the correct perspective on Section 230 and what is does (and does not) do. Anything else is just, well, idle chatter.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Some of the damage police did to Shaniz West’s home.

Institute for Justice

The Courts or State legislature must get rid of absolute and qualified immunity for anyone, no matter what your position is. If you do something illegal and intentionally harm someone else, you must be held accountable by punishment that fits the crime.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Why police can violate your constitutional rights and suffer no consequences in court

Government officials enjoy broad protections against lawsuits, and that includes rogue cops.

By Ian Millhise, VOX.com, Jun 3, 2020, 8:00am EDT

A SWAT team ruined Shaniz West’s house.

Police approached West because they believed her ex-boyfriend, who had an outstanding felony arrest warrant, was inside her home. (He wasn’t.) West gave the police permission to enter her home — an important fact because it meant that police could enter without a warrant — and lent an officer her key.

But West did not expect the police to smash her windows. Or to fire so much tear gas into the home that it saturated her possessions and made the house unlivable for two months. Or to fire tear gas canisters at such velocity that her walls and ceilings suffered extensive damage. The city gave her only $900 to cover her losses, plus a hotel room for three weeks.

And yet, when West sued, a federal appeals court determined that her lawsuit was dead on arrival. The culprit was qualified immunity, a doctrine that gives government officials broad — if not entirely limitless — protection against federal lawsuits.

The unusual lawsuit immunity enjoyed by police is under increased scrutiny in the wake of nationwide protests inspired by the killing of George Floyd by a Minneapolis police officer. One lawmaker, Rep. Justin Amash (I-MI), has even proposed legislation that would abolish qualified immunity altogether.

In theory, qualified immunity shields government officials from lawsuits involving novel legal claims. As the Supreme Court held in Harlow v. Fitzgerald (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In practice, however, qualified immunity can protect truly egregious conduct by police. As the Supreme Court put it in Malley v. Briggs (1986), qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

In West’s lawsuit, West v. City of Caldwell, two members of a three-judge panel determined that the officers who trashed West’s home are entitled to qualified immunity — because there was no previous case specifically holding that when a homeowner gives police consent to enter their house, that consent does not entitle police to smash windows or to fire chemical weapons into the home.

To prevail in her case, the Court reasoned, West would have to produce a binding precedent establishing “a constitutional rule specific enough to alert these deputies in this case that their particular conduct was unlawful” (emphasis in original).

Why does qualified immunity exist?

The premise of the Supreme Court’s qualified immunity cases is that government officials will do their jobs less efficiently and with less enthusiasm if the threat of a lawsuit looms over them.

As the Court explained in Harlow, qualified immunity does not simply protect public employees from the “expenses of litigation.” It ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.” Finally, the Supreme Court also warned about “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”

These are not frivolous concerns. Qualified immunity applies broadly to government officials, not simply to police officers. So, in a world without qualified immunity, religious conservatives could harass civil rights officials with lawsuits to discourage those officials from enforcing laws prohibiting anti-LGBTQ discrimination. Koch Industries could bombard EPA officials with lawsuits discouraging them from enforcing environmental laws.

And as the Supreme Court lurches right, government employees could not be certain that their actions would be upheld by the justices — even if existing precedents clearly establish that those actions are lawful. Public employees could face financial ruin every time the Supreme Court overruled a precedent.

Yet whatever the wisdom of providing some lawsuit immunity to most public employees, most government officials do not have guns. Teachers and firefighters — or, for that matter, civil rights commissioners and EPA officials — typically do not smash the windows of an innocent woman’s home and saturate the interior with tear gas.

It’s one thing to say that public employees should generally be able to do their jobs without having to fear an onslaught of lawsuits. It’s another thing entirely to give sweeping legal immunity to people who are authorized by the state to inflict violence on citizens, and potentially even to take another person’s life.

How qualified immunity works in practice

The primary purpose of qualified immunity is to ensure that public officials do not face expensive litigation when the legality of their actions is uncertain. Qualified immunity is not a complete shield against liability. It only protects government employees whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

For several years, this meant that the first government official to violate the law in a new or innovative way typically got off scot-free, but subsequent officials could then be placed on notice that they better not engage in similar behavior. In Saucier v. Katz (2001), the Supreme Court held that judges hearing qualified immunity cases must conduct a two-step inquiry.

Courts must first ask whether “the facts alleged show the officer’s conduct violated a constitutional right.” Then, after determining whether the defendant violated the law, the court would determine whether that defendant was nonetheless entitled to qualified immunity because the illegality of their actions was not “clearly established.”

Thus, as time passed, courts would declare more and more conduct illegal, and government officials would then be on notice that they could not emulate that conduct.

But the Court largely abandoned this two-step framework in Pearson v. Callahan (2009), which held that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, judges now have the power to dispose of cases on qualified immunity grounds without ever ruling on whether anyone’s rights were violated. As a recent Reuters investigation notes, moreover, judges are increasingly likely to declare government officials immune from a suit without resolving whether those officials acted illegally.

Government officials also enjoy extraordinary procedural protections in qualified immunity cases. As attorney Raffi Melkonian notes on Twitter, in qualified immunity cases, “the defendant gets an automatic, immediate, appeal to the Court of Appeals” if they are denied qualified immunity by a federal trial court. Moreover, civil procedure rules often allow a defendant to raise qualified immunity at two different phases of a trial court proceeding — and if the court denies qualified immunity at each phase, both denials can be immediately appealed.

According to Melkonian, that means that, even in the best-case scenario, if you are a plaintiff suing a government official “you have 2-3 years of appellate procedure in every single case even before you win the case.” That’s a long time to wait for a judgment, and it discourages many lawyers from taking these cases — because they are unlikely to win, even less likely to win quickly, and will have to invest considerable resources into these lawsuits before they have any real shot of getting paid.

And then let’s say that a victim of police violence does ultimately prevail in a suit against a police officer. Even then, the likelihood that the officer will be required to compensate the victim is negligible. Many jurisdictions have indemnity laws, providing that the government will pay for any damages awarded against a police officer. These laws are so common that a 2014 study by UCLA law professor Joanna Schwartz found that “during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”

There may be bipartisan opposition building to qualified immunity.

Conservatives have dominated the Supreme Court since President Richard Nixon appointed four justices in his first term. But the nature of judicial conservatism has changed dramatically over the past half-decade.

For much of this period, judicial conservatism was typically associated with deference to governmental power — and especially with deference to law enforcement. As Nixon wrote in 1967, “the first responsibility of government and a primary responsibility of the judicial system is to guarantee to each citizen his primary civil right — the right to be protected from domestic violence.”

In recent years, however, judicial conservatism has taken on a more libertarian tone. That doesn’t mean that the Roberts Court is a bastion of civil liberties for criminal defendants, but it does mean that several members of the Court’s Republican majority are protective of some of those liberties.

Chief Justice John Roberts, for example, often votes with his liberal colleagues in cases where police use new technology to conduct intrusive searches. Trump appointee Neil Gorsuch wrote the lead opinion in a case holding that criminal defendants may only be convicted by a unanimous jury. And Trump’s other appointee, Justice Brett Kavanaugh, is a longstanding opponent of racial jury discrimination — he even authored a law review note on that topic while he was still a student.

Meanwhile, Justice Clarence Thomas, the Court’s most conservative member, wrote in a 2017 opinion that his Court should “reconsider our qualified immunity jurisprudence.”

Thomas’s partial concurring opinion in Ziglar v. Abbasi (2017) is brief, and it is vague. The thrust of Thomas’s argument is that, when determining whether a government official should be immune from a particular suit, courts should rely on “common law” principles that existed more than a century ago, rather than the practical concerns raised in Harlow.

Does that mean that Thomas would join a five-justice majority in limiting qualified immunity? The answer to that question is unclear, but many litigants appear ready to test whether a majority of the Court is willing to rethink qualified immunity.

As many as a dozen cases are currently pending before the Supreme Court asking it to rein in the broad immunity currently afforded to government officials. One of those cases is Shaniz West’s case, which is now called West v. Winfield. The justices, moreover, have discussed whether to hear West’s case at six separate conferences — a sign that at least some members of the Court have taken an interest in the case.

Meanwhile, Rep. Amash, a former Republican with right-libertarian views, is seeking co-sponsors for legislation titled the Ending Qualified Immunity Act, which he says would “eliminate qualified immunity and restore Americans’ ability to obtain relief when police officers violate their constitutionally secured rights.”

That would be a bold step, which would likely go far beyond any limits that the Supreme Court would place on qualified immunity. And it not at all clear whether a majority of the House and the Senate would ever be willing to go so far.

Nevertheless, even if Congress does not ultimately decide to eliminate qualified immunity altogether, qualified immunity is a judicially created doctrine that isn’t grounded in the Constitution — which means that Congress has the power to alter that doctrine however it chooses. Congress could, for example, decide that law enforcement officers — or any other government official who carries a deadly weapon — should not enjoy the same broad immunity afforded to teachers, firefighters, or EPA officials.

It could ensure that, at the very least, police who kill, or wreck lives, or destroy people’s homes are not immune from suit.

FILE - This Feb. 2, 2012 file photo shows former lobbyist Jack Abramoff speaking

in Washington. (AP Photo/Charles Dharapak, File)

Lobbyist Abramoff charged in cryptocurrency fraud case

BY ASSOCIATED PRESS AP
PUBLISHED 9:31 PM ET JUN. 25, 2020

SAN FRANCISCO (AP) — Jack Abramoff, a once-powerful lobbyist who spent time in federal prison for fraud and corruption, has been charged in a San Francisco court in an investor fraud case involving cryptocurrency and lobbying disclosure, federal authorities announced Thursday.

U.S. Attorney David Anderson said Abramoff, 61, of Silver Spring, Maryland, has agreed to plead guilty to criminal conspiracy charges and a criminal violation of the Lobbying Disclosure Act in the case involving a cryptocurrency called AML BitCoin.

Anderson said the charges were the first brought since Congress in 2007 amended the act to address lobbying abuses and undisclosed influence that came to light during the early 2000s lobbying scandal involving Abramoff.

Abramoff pleaded guilty in 2006 to a wide-ranging influence peddling probe that involved Capitol Hill, the Interior Department and members of President George W. Bush’s administration. He was convicted of conspiracy, mail fraud, and tax evasion and served nearly four years in prison. He was released in 2010.

Prosecutors said in 2017 Abramoff lobbied members of Congress on behalf of a California-based marijuana industry client without registering as a lobbyist.

“Abramoff was aware of the obligations to register as a lobbyist in part because Congress amended provisions of the Lobbying Disclosure Act in 2007 in part as a reaction to Abramoff’s past conduct as a lobbyist,” court documents say.

The investor fraud charges stem from a separate lawsuit filed by the U.S. Securities and Exchange Commission, which claimed Abramoff and an associate, Roland Marcus Andrade, made false claims when they promoted AML BitCoin.

Andrade, 42, of Missouri City, Texas, was charged with fraud and money laundering in an indictment that was returned by the grand jury on June 20 and unsealed Thursday, Anderson said.

He said Abramoff has agreed to plead guilty and could face up to five years in prison. Anderson said Andrade is pleading not guilty.

Abramoff and Andrade could not immediately be reached for comment.

Andrade said his cryptocurrency called AML BitCoin used technologies that complied with the federal government's anti-money laundering laws and announced an initial offering of AML BitCoin in the amount of $100 million, federal officials said.

In July 2017, Andrade and his company NAC Foundation began selling AML BitCoin and raised at least $5 million through the end of 2018, prosecutors said.

"As alleged today, AML BitCoin did not have the features claimed by the defendants,” said John Bennett, special agent in charge of the San Francisco Division of the Federal Bureau of Investigations.

Abramoff and Andrade are accused of making a series of false statements to potential investors about AML BitCoin, including that the government of Panama and the Panama Canal Authority were in talks to adopt the cryptocurrency for canal transit payments, officials said.

They also engineered a publicity stunt by saying that a Super Bowl ad touting AML BitCoin as non-hackable had been rejected by the National Football League on the grounds that it was too politically controversial, the officials said.

“In truth, the defendants never intended to air the Super Bowl ad. The defendants used paid editorials, social media and press releases in an effort to create a false controversy and generate unearned publicity,” Bennett said.

Court Papers

Disgraced Lobbyist Jack Abramoff Headed Back to Jail
Nathaniel Popper, NY Times, June 25, 2020

Mr. Abramoff became the first person charged with violating a law that was amended in response to his previous criminal offenses.

K Street Files: Abramoff Returns as Government Reformer (February 6, 2012, Roll Call)

Epstein Confidante Ghislaine Maxwell Arrives in New York City, Bail Hearing Looms

Maxwell is Alleged to Have Facilitated, Participated in Acts of Abuse

Additionally Charged With Perjury in Connection With 2016 Depositions

Audrey Strauss, the Acting United States Attorney for the Southern District of New York, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), and Dermot Shea, Commissioner of the New York City Police Department (“NYPD”), announced that GHISLANE MAXWELL was arrested this morning and charged with enticing a minor to travel to engage in criminal sexual activity, transporting a minor with the intent to engage in criminal sexual activity, conspiracy to commit both of those offenses, and perjury in connection with a sworn deposition. The indictment unsealed today alleges that between at least in or about 1994 through 1997, MAXWELL and co-conspirator Jeffrey Epstein exploited girls as young as 14, including by enticing them to travel and transporting them for the purpose of engaging in illegal sex acts. As alleged, knowing that Epstein had a preference for young girls, MAXWELL played a critical role in the grooming and abuse of minor victims that took place in locations including New York, Florida, and New Mexico. In addition, as alleged, MAXWELL made several false statements in sworn depositions in 2016. MAXWELL is expected to be presented this afternoon in the federal court in New Hampshire. This case is assigned to U.S. District Judge Alison J. Nathan.

Acting U.S. Attorney Audrey Strauss said: “As alleged, Ghislaine Maxwell facilitated, aided, and participated in acts of sexual abuse of minors. Maxwell enticed minor girls, got them to trust her, and then delivered them into the trap that she and Jeffrey Epstein had set. She pretended to be a woman they could trust. All the while, she was setting them up to be abused sexually by Epstein and, in some cases, Maxwell herself. Today, after many years, Ghislaine Maxwell finally stands charged for her role in these crimes.”

FBI Assistant Director William F. Sweeney Jr. said: “Preserving the innocence of children is among the most important responsibilities we carry as adults. Like Epstein, Ms. Maxwell chose to blatantly disregard the law and her responsibility as an adult, using whatever means she had at her disposal to lure vulnerable youth into behavior they should never have been exposed to, creating the potential for lasting harm. We know the quest for justice has been met with great disappointment for the victims, and that reliving these events is traumatic. The example set by the women involved has been a powerful one. They persevered against the rich and connected, and they did so without a badge, a gun, or a subpoena - and they stood together. I have no doubt the bravery exhibited by the women involved here has empowered others to speak up about the crimes of which they've been subjected.”

NYPD Commissioner Dermot Shea said: “The heinous crimes these charges allege are, and always will be abhorrent for the lasting trauma they inflict on victims. I commend our investigators, and law enforcement partners, for their continuing commitment to bringing justice to the survivors of sexual assault, everywhere.”

If you believe you are a victim of the sexual abuse perpetrated by Jeffrey Epstein, please contact the FBI at 1-800-CALL FBI, and reference this case.

According to the Indictment[1] unsealed today in Manhattan federal court:

From at least 1994 through at least 1997, GHISLAINE MAXWELL assisted, facilitated, and participated in Jeffrey Epstein’s abuse of minor girls by, among other things, helping Jeffrey Epstein to recruit, groom, and ultimately abuse victims known to MAXWELL and Epstein to be under the age of 18. The victims were as young as 14 years old when they were groomed and abused by MAXWELL and Epstein, both of whom knew that their victims were in fact minors. As a part and in furtherance of their scheme to abuse minor victims, MAXWELL and Epstein enticed and caused minor victims to travel to Epstein’s residences in different states, which MAXWELL knew and intended would result in their grooming for and subjection to sexual abuse.

As alleged, MAXWELL enticed and groomed minor girls to be abused in multiple ways. For example, MAXWELL attempted to befriend certain victims by asking them about their lives, taking them to the movies or taking them on shopping trips, and encouraging their interactions with Epstein. MAXWELL also acclimated victims to Epstein’s conduct simply by being present for victim interactions with Epstein, which put victims at ease by providing the assurance and comfort of an adult woman who seemingly approved of Epstein’s behavior. Additionally, to make victims feel indebted to Epstein, MAXWELL would encourage victims to accept offers of financial assistance from Epstein, including offers to pay for travel or educational expenses. MAXWELL also normalized and facilitated sexual abuse by discussing sexual topics with victims, encouraging them to massage Epstein, and undressing in front of a victim.

As MAXWELL and Epstein intended, these grooming behaviors left minor victims vulnerable and susceptible to sexual abuse by Epstein. MAXWELL was then present for certain sexual encounters between minor victims and Epstein, such as interactions where a minor victim was undressed, and ultimately MAXWELL was present for sex acts perpetrated by Epstein on minor victims. That abuse included sexualized massages during which a minor victim was fully or partially nude, as well as group sexualized massages of Epstein involving a minor victim where MAXWELL was present.

As alleged, minor victims were subjected to sexual abuse that included, among other things, the touching of a victim’s breasts or genitals, placing a sex toy such a vibrator on a victim’s genitals, directing a victim to touch Epstein while he masturbated, and directing a victim to touch Epstein’s genitals. MAXWELL and Epstein’s victims were groomed or abused at Epstein’s residences in New York, Florida, and New Mexico, as well as MAXWELL’s residence in London, England.

Additionally, in 2016, while testifying under oath in a civil proceeding, MAXWELL repeatedly made false statements, including about certain specific acts and events alleged in the Indictment.

* * *

GHISLAINE MAXWELL, 58, is charged with one count of enticing a minor to travel to engage in illegal sex acts, which carries a maximum sentence of five years in prison, one count of conspiracy to entice a minor to travel to engage in illegal sex acts, which carries a maximum sentence of five years in prison, one count of transporting a minor with the intent to engage in criminal sexual activity, which carries a maximum sentence of 10 years in prison, one count of conspiracy to transport a minor with the intent to engage in criminal sexual activity, which carries a maximum sentence of five years in prison, and two counts of perjury, each of which carries a maximum sentence of five years in prison.

The statutory maximum penalties are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant would be determined by the judge.

Ms. Strauss praised the outstanding investigative work of the FBI and the NYPD.

This case is being handled by the Office’s Public Corruption Unit. Assistant U.S. Attorneys Alex Rossmiller, Alison Moe, and Maurene Comey are in charge of the prosecution.

The charges contained in the Indictment are merely accusations. The defendant is presumed innocent unless and until proven guilty.

I think Tammy looks gorgeous. I'm glad she won and can help CBS Stations Group get their act together on hiring women over the age of 27.

Betsy Combier
betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

CBS Stations Group of Texas to pay Tammy Dombeck $215,000

Mikemcduff.com, July 15, 2020

Former CBS11 KTVT Dallas - Fort Worth Metroplex freelance traffic reporter Tammy Dombeck Campbell will be paid $215,000 and furnished "significant equitable relief" to settle a federal age discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) has announced.

Here is more from the EEOC press release:

The EEOC charged that CBS violated federal law when it refused to hire Tammy Dombeck Campbell for a full-time traffic reporter position at the Dallas/Fort Worth station because of her age. The EEOC said that Campbell had worked for CBS 11 as a freelance, non-staff traffic reporter.

When the station’s morning full-time traffic reporter resigned in October 2014, the company initiated a search for a replacement. The CBS job announcement stated that “the ideal candidate” would have a strong knowledge of local traffic in the Dallas/Fort Worth area and that the “applicant must have at least five years professional broadcasting experience.” The EEOC said that CBS 11 hired a 24-year-old applicant for the full-time traffic reporter position. The younger applicant was a former NFL cheerleader, and the EEOC maintained that the she did not meet the hiring criteria CBS had advertised. CBS 11 also had made an offer to a 27-year old applicant who accepted and then withdrew from the hiring process.

Such alleged conduct violates the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against people age 40 or older. The EEOC filed suit (EEOC v. CBS Stations Group of Texas; Television Station KTXA and KTVT-TV, Civil Action No. 3:17-cv-02624) in the U.S. District Court for the Northern District of Texas, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.

Under the consent decree signed by U.S. District Chief Judge Barbara M. G. Lynn, resolving the suit, CBS Stations Group of Texas will pay will pay $215,000 to Ms. Campbell and commits not to engage in age discrimination. The company will also provide training on the ADEA, publish a notice of employee rights, and report to the EEOC on its compliance with the requirements of consent decree.

“Tammy Campbell was clearly qualified for the position of traffic reporter,” said Joel Clark, EEOC senior trial attorney for the Dallas District Office. “The EEOC argued to the court that CBS 11 preferred a younger, less qualified applicant, and that the employer defaulted to unfounded stereotypes about female reporters.”

EEOC Regional Attorney Robert A. Canino added, “In explaining its decision, the company relied on what was called the ‘it’ factor. The EEOC was prepared to prove that, for Ms. Campbell, ‘it’ was her age. We hope that the resolution of this case will be another step forward in moving past ageist attitudes that can limit opportunities in the field of broadcast television.”

RELATED
An exclusive interview with former CBS11 traffic anchor Tammy Dombeck and her EEOC attorneys, who are taking the station to court on charges of age discrimination (2017)

According to her bio, Dombeck has covered DFW traffic on the radio for such stations as KLIF, KPLX, KZPS, and KKDA. In addition to TV news traffic on KTVT, she also covered it for NBC 5 KXAS in Dallas for 12 years.

UPDATE JULY 17, 2020
KTVT released a statement on the settlement to the Fort Worth Star-Telegram which said, “We are pleased this matter has been resolved to the satisfaction of all parties.”

The Age Discrimination in Employment Act of 1967 (ADEA)

HR DIVE

The ADEA forbids discrimination on the basis of age against employees and applicants who are 40 years old or older. Even though the federal anti-discrimination law has been in place for many years, age discrimination remains a problem in the workplace, experts say. A recent AARP investigation found that ageism at work is widespread; more than a fifth of employees over age 40 in a Hiscox Ageism in the Workplace Study said they had experienced age discrimination in the workplace.

Several employers have settled claims of age bias in hiring recently. Earlier this year, PwC agreed to pay $11.6 million and change its recruiting practices to settle a claim that its targeting of recent college grads amounted to age discrimination. Norfolk Southern Corp., a freight hauler, likewise agreed to pay $350,000 in February to settle an EEOC age discrimination lawsuit alleging the freight transportation company refused to hire qualified individuals over the age of 51 for railway security positions.

Compliance with the ADEA can start with recruitment efforts, stakeholders say. When designing plans that attract a diverse pool of candidates, employers can include age in their inclusion strategies. Avoiding terms such as "established" or "digital native" can help, sources previously told HR Dive. It's worth noting, too, that experts say recruiting heavily based on social media can disproportionately attract younger applicants.

Employers can reduce discriminatory employment decisions in hiring, promotion, and assignment by establishing written criteria tied to business needs for evaluating candidates and consistently applying the requirements to all candidates, the EEOC has said.

Appeals court rules that judiciary misspent funds from court records fees

OK! The first step is won, now we need to get Congress to approve making access free to all Courts' records. The public should not have to pay for public information.

Betsy Combier

betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Appeals court rules that judiciary misspent funds from court records fees

The Hill, BY HARPER NEIDIG - 08/06/20 11:10 AM EDT

A federal appeals court on Thursday ruled that the federal judiciary has been misusing the fees it charges the public for access to court records.

A three-judge panel on the Federal Circuit Court of Appeals upheld a district court decision that ruled the Administrative Office of the United States Courts had improperly spent money from access fees on programs that had nothing to do with maintaining the public's ability to access court documents.

Judge Todd Hughes wrote in a decision for the panel that the law requires courts to limit the fees charged to access records to "the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information."

The case concerns a lawsuit brought by legal groups challenging the court system's Public Access to Court Electronic Records (PACER) program, which charges the public 10 cents for every page of a document they access, though documents exceeding 30 pages are capped at $3.

Critics argue that the fees are excessively high.

"We're thrilled that the Federal Circuit recognized that the federal judiciary's PACER system has been charging people more than the law allows for access to court records," said Deepak Gupta, an attorney representing the organizations that filed the lawsuit. "The judiciary's antiquated paywall inhibits ordinary people's access to the courts, prevents journalists from covering what the courts are up to, and makes important academic research difficult or impossible. The next step should be to make access completely free."

A district judge ruled in 2018 that the court system had unlawfully used PACER fees on a study regarding electronic access to Mississippi state court documents, a program sharing information with local law enforcement on violent offenders, and the costs of an electronic juror-management system.

The circuit court upheld those findings, but rejected the plaintiffs' efforts to expand the scope of the decision.

"As to those amici urging the elimination of all fees for accessing electronically available court records, we agree with the government that those calls are better directed to Congress," Hughes wrote in Thursday's ruling.

Michael Flynn

by Andrew C. McCarthy, National Review, August 15, 2020

General Michael Flynn is going to lose the battle. That was the takeaway from Tuesday’s hearing before the D.C. Circuit U.S. Court of Appeals. Flynn will eventually win the war, but President Trump’s first national-security adviser is still in a slog, and there are more scraps ahead.

The battle in question is Flynn’s petitioning of the D.C. Circuit to issue a writ of mandamus against federal district judge Emmet Sullivan. Mandamus is an extraordinary remedy. It is something of a last resort, when a judge is acting so lawlessly that the damage could be incurable if a higher court fails to intervene. Here, the writ would direct Judge Sullivan to end his highly irregular inquiry into the Justice Department’s motion to dismiss the case against Flynn and just grant that motion, as the law requires.

Flynn will eventually prevail in having the case dismissed, because he has an ace in the hole: If all else fails, the president will pardon him. Meanwhile, maybe Sullivan will grant the dismissal motion, as the judge’s lawyer hinted at the hearing. If he does not, maybe there will still be time for Flynn to win a reversal on appeal — an eventuality that some circuit judges suggested but that, practically speaking, may hinge on whether President Trump is reelected (if Trump loses, he’d have to pardon by January 20). Naturally, Flynn would rather not go the pardon route; there is more vindication if the case is formally dismissed on the motion of the prosecuting authority that brought it.

The specter of a pardon has a distorting effect on the proceedings. It has emboldened Sullivan — an erratic, irascible man who has been a judge for 36 years — to unleash his inner crazy, knowing it won’t make a difference in the end. The circuit judges are more tentative than they might otherwise be in reining him in.

That is this analyst’s conclusion after listening to Tuesday’s oral arguments, a nearly four-hour affair. Counsel for Flynn, the Justice Department, and Sullivan presented arguments to, and were exactingly questioned by, ten appellate judges. Though designed to be a face-to-face court proceeding, the en banc (or full court) hearing was conducted by audio teleconference. Things went fairly smoothly, though there were the occasional technical glitches and cacophony of competing voice-overs to which the COVID-19 era has inured us.

Flynn won’t win, but he should. He did, in fact, win the first round, before a three-judge panel. This divided ruling was vacated, however, when the full D.C. Circuit — ten judges, because an eleventh is recused — agreed to reconsider it, on the highly unusual motion of Sullivan, the district judge against whom the panel’s mandamus writ was issued.

Disqualification, a Red Herring
The fact that Sullivan himself moved for en banc review prompted the question of disqualification. The issue, however, seemed more intriguing in the run-up than it proved to be at the hearing.

As I recounted last weekend, the circuit, just a few days before the hearing, issued an order intimating that Judge Sullivan might need to recuse under the federal statute that governs disqualification. The order was cryptic, and an outsider never knows exactly what to make of such signals. Did it mean a critical mass of the judges were concerned, or was the full court merely humoring one or two of their colleagues who thought disqualification should be addressed? Or was the court hoping Sullivan would take the hint and recuse himself, sparing the appellate judges the unwelcome task of assessing his strange comportment?

In the event, it was a red herring. I had theorized that the circuit, by forcing Judge Sullivan to seek en banc review himself (when none of the appellate judges asked for it), had put him in the position of being a litigant; the law requires the disqualification of a judge who becomes a party to the case. But Sullivan’s counsel pointed out that it was the circuit’s own three-judge panel that initially ordered him to respond to Flynn’s mandamus petition — he was planning to ignore it, as he hoped the circuit would. And even though Sullivan did seek full-court review of the panel’s ruling, how could the court compel him to act like a litigant and then pull the rug out from under him when he complied? This seemed to satisfy some of the judges, who pooh-poohed disqualification and conceded that Sullivan had not made himself a party in the case.

Another part of the statute requires a judge’s recusal any time his impartiality might be questioned. Yet neither the Justice Department nor Flynn had formally moved to disqualify Sullivan. That may seem odd to the layman, but it makes practical sense. As Emerson observed, “When you strike at a king, you must kill him.” Experienced litigants never seek a judge’s disqualification unless there is no alternative and they are certain to win on the issue — because if you lose, you are going to have one very angry judge deciding your fate.

Taking her cue from the circuit’s pre-hearing order, Flynn’s counsel, Sidney Powell, told the judges that Sullivan should be disqualified. But Flynn’s bridge is already burned. In stark contrast, the Justice Department has many other cases before Judge Sullivan. It has not sought his disqualification, and the topic was not mentioned in acting solicitor general Jeffrey Wall’s presentation; he gingerly weighed in on it only when prodded by Judge Karen Henderson (who was in the panel majority that ruled against Sullivan, and who seemed more interested in the recusal issue than did her colleagues). Wall took pains to say that Sullivan had not exhibited actual bias. He made a half-hearted nod in the direction of questioning Sullivan’s impartiality, but recusal was not a hill he was prepared to die on.

The Justice Department’s Mandamus Dance
The Justice Department’s reticence is not limited to recusal. More consequential is the fact that the solicitor general has never formally moved for a writ of mandamus against Sullivan. When asked about this, Wall brushed it off as an irrelevant technicality, just as he did two months ago when the petition was argued before the panel. He insists it’s not a big deal because the Justice Department has supported Flynn’s petition — albeit only after the panel asked for its input. But if it’s not a big deal . . . then why not file the petition? After all, some of the circuit judges are clearly annoyed about being asked to rebuke a fellow jurist when a party aggrieved by Sullivan’s conduct — the executive branch, whose constitutional power to end a prosecution is being usurped — never bothered to seek the writ. I suspect the cynic in the circuit judges (like the cynic in me) wonders whether Justice’s clever lawyers are trying to have it both ways — nudge the circuit into issuing the writ, but assure Sullivan that they never asked for the writ.

Wall is a superb lawyer, and he may be right that Justice has made exactly the same arguments it would have made if it had formally petitioned for the writ. But the solicitor general’s posture has the feel of gamesmanship. It has at least some of the judges miffed.

Judge Sullivan’s Alternative Universe
Beyond that, we need to distinguish two things: The merits of the mandamus petition versus the merits of Justice’s motion to dismiss the case — i.e., the motion Sullivan has failed to grant and signaled he would not grant, which is what prompted Flynn to seek mandamus.

Wall stressed that the panel’s ruling granting mandamus should have remained undisturbed. Never before, he asserted, has a district judge, on his own motion, been granted en banc reconsideration of such a panel ruling. The Justice Department’s research indicates that only one other judge has ever tried, and that judge was rebuffed. By contrast, Sullivan’s lawyer, Beth Wilkinson, emphasizes: Never before has a circuit court issued a writ of mandamus against a district judge who has not yet even conducted a hearing on a dismissal motion, much less denied it.

So, it’s a contest of the “never befores.”

Wilkinson’s claim returns us to the topic of gamesmanship. After she made her pitch on Sullivan’s behalf, one could detect a trace of pique in the unflappable Wall’s closing argument. Wilkinson is a very able advocate, but to hear her describe how Sullivan has presided over the case, after watching how Sullivan has presided over the case, was to be transported to an alternative universe.

In her argument, Wilkinson feigned astonishment that anyone could possibly imagine the highly experienced, well-respected judge would do anything other than follow the law — and if the law requires dismissal, well then, by God, how could anyone think he wouldn’t dismiss? Indeed, she tartly observed that Sullivan originally wanted to conduct his hearing on the Justice Department’s dismissal motion in mid-July; had Flynn not sought mandamus, had the Justice Department not gone along, and had the circuit had not indulged what she described as the baseless, overwrought petition, this case might have been over a month ago.

Sure.

If you’re keeping score, early in the proceedings, the highly experienced judge did not seem to have taken the few minutes he would have needed to review the file he’d inherited. Sullivan wildly implied that Flynn — a decorated 30-year combat commander, who is charged with a false-statements process crime that interviewing agents did not think he committed and that had no obstructive effect whatsoever on the Trump–Russia investigation — had “sold your country out” and might be guilty of “treason.” The judge eventually apologized, adding that he “felt terrible about that.” I’m sure that made General Flynn feel much better.

In more recent times, Sullivan has floated the nearly equally lunatic notion that Flynn should be prosecuted for contempt due to his “perjury” because — like a zillion other defendants, including an untold number during Sullivan’s long tenure — Flynn initially pled guilty but later moved to withdraw his plea and claimed innocence. In the interim, Sullivan appointed an amicus curiae (friend of the court), former federal judge John Gleeson, a partisan Democrat selected for the gig only after co-authoring a Washington Post op-ed that accused the Trump administration and its Justice Department of corruption in dropping Flynn’s case.

The role assigned to Gleeson by Sullivan is to argue against dismissal — i.e., to act as a court-appointed prosecutor against Flynn, under circumstances where the only authority with constitutional power to prosecute, the Justice Department, has announced it is dropping the case. Gleeson’s 73-page brief conveys that he expects to challenge the Justice Department’s explanation of its legal theory that Flynn is not guilty of the false-statements charge, its assessment of the strength of the case, its decision that pursuing the case would not be a meritorious expenditure of its resources, its internal deliberations about the case, and its motives for dismissing it — though Gleeson ultimately backtracked, at least for now, on the suggestion that he would subpoena witnesses and conduct additional factfinding.

Sullivan also invited other amici to weigh in, notwithstanding that there is no rule permitting amicus briefs in criminal cases (the defendant in such a case already has to contend with the limitless resources of the Justice Department). This was remarkable because, to quote a Judge Sullivan ruling, “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases”; consequently, the judge has denied dozens of applications to file amicus briefs, including in the Flynn case.

Yes indeedy, how could anyone possibly get the nutty idea that straight-arrow Sully plans to do anything other than follow the law and dismiss the case?

Not a Thought Crime
There is no doubt about the lawlessness of what Sullivan has contemplated doing. To state succinctly what I’ve covered in other columns (e.g., here), to the extent Rule 48(a) purports to require “leave of court” before the Justice Department may dismiss a case, it unconstitutionally infringes on the executive authority — at least in a case where the defendant agrees to a dismissal that will end the case with prejudice (i.e., where the prosecutor is not violating due process by dismissing to get a tactical advantage). In a case such as Flynn’s, the presiding judge must grant the dismissal.

During the argument, some circuit judges took umbrage at this image of the lower court reduced to a rubber stamp. But that is not Flynn’s or Justice’s doing; it is what happens when Congress enacts a constitutionally dubious rule that should not have brought the court into the dismissal equation in the first place.

That is why Flynn should win the case. But, to repeat, winning the case is different from winning the mandamus.

I italicized has contemplated a moment ago because, if I may analogize to penal law, a “thought crime” is not enough for mandamus. Yes, Judge Sullivan has set the stage for a travesty, but he has not actually done anything irreparable yet.

Reluctant to think ill of their longtime fellow jurist, most of the circuit judges seem prepared to suspend disbelief and accept Ms. Wilkinson’s assurance that Sullivan will follow the law. And even acting solicitor general Wall concedes that it is proper for a judge to hold some kind of hearing on a dismissal motion, although for nothing other than the limited purpose of making sure the judge understands the Justice Department’s rationale. (In Flynn’s case, it would also be proper to hold no hearing, given that the prosecution’s very detailed submission elucidates that no tactical advantage is sought over Flynn and shows that the Justice Department has proper reasons — even if Sullivan disagrees with them.)

A mandamus writ is supposed to issue only if there is no adequate alternative relief. Flynn can’t really make that showing because if Sullivan grants the dismissal motion, Flynn gets exactly the result he wants. The Justice Department could complain that the executive is already being damaged by the hearing process Sullivan is putting in place; but again, Justice did not seek mandamus. And if Sullivan retreats and grants the motion, the way Wilkinson suggests he might, Justice won’t have much to complain about.

On the other side of the mandamus ledger, the circuit has to be concerned that granting the writ would open the floodgates to other litigants who seek to appeal right away whenever the district judge allegedly makes an error. The regular, orderly appellate process calls for waiting until the end of the district court proceedings to raise all claims of error. Circuit Judge Merrick Garland seemed especially concerned that such a precedent could not easily be limited.

Back in Judge Sullivan’s Court
To summarize, I expect the full court will rule against mandamus, probably by a 7–3 or 8–2 vote, along the party lines of a circuit that tilts heavily Democratic. The two Republican appointees who formed the panel majority in favor of issuing the writ will no doubt dissent, and perhaps pick up another vote or two, but no more. It will be interesting to see whether a majority opinion, while denying the writ, admonishes Sullivan that a judge (a) should afford the executive branch a presumption of good faith, (b) should not second-guess the executive’s reasoning or probe its motives in dismissing a prosecution, and (c) may not appoint amici to serve as parallel prosecutors.

292

Once mandamus is denied, the Flynn case will be sent back to Judge Sullivan. Will he drag his feet to make General Flynn sweat it out? The circuit court indicated disapproval of that prospect. Will Sullivan, despite all the rabble-rousing, just grant the dismissal motion without much more fanfare, as his lawyer suggested he might? That would be a pleasant surprise, but I’m not holding my breath. Will the judge turn the hearing into a circus and try to put the Trump Justice Department on trial? It remains a possibility, though less of one if the circuit prudently warns against it. Will Sullivan deny the dismissal motion and perhaps even try to sentence Flynn? I have to think the Justice Department would petition for mandamus at that point, and its case would be strong. Or would Justice and/or Flynn then ask the judge to impose sentence quickly, rather than put it off for a few months? That way, if President Trump loses the November election, Flynn might still have time to appeal such lawlessness and get a reversal that would obviate the need for a pardon.

Lots of questions. They cannot be answered until the ball is back in Judge Sullivan’s court. Unfortunately, I’m convinced that the D.C. Circuit will soon toss it back there.

ANDREW C. MCCARTHY is a senior fellow at National Review Institute, an NR contributing editor, and author of BALL OF COLLUSION: THE PLOT TO RIG AN ELECTION AND DESTROY A PRESIDENCY. @andrewcmccarthy

Sarah Palin

Sarah Palin Gets Libel Trial Against New York Times

A federal judge rejects the paper's summary judgment motion and sets a trial for February.

AUGUST 28, 2020 3:57pm PT by Eriq Gardner

Sarah Palin will proceed to trial against The New York Times next February, pandemic permitting. On Friday, U.S. District Court Judge Jed Rakoff rejected the paper's summary judgment motion in a big libel case over an editorial about gun violence. The New York federal judge concludes that she had provided enough evidence to establish actual malice on the part of the paper's former op/ed chief.

The editorial linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the writer of the editorial, wanted to make a point about a climate of political incitement, but The New York Times quickly made a correction acknowledging that no link had been established between Palin's ad and the shooting.

Rakoff had previously dismissed the suit in Aug. 2017, writing at the time that "in the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

The 2nd Circuit Court of Appeals then revived the case based on Rakoff's rash conclusion that Palin couldn't establish actual malice.

Back at the lower court, Palin aimed for something even greater than a win against The New York Times. She aimed to basically upend a half century of jurisprudence in libel cases by overthrowing the actual malice standard — that being how public figures must demonstrate awareness of falsity or reckless disregard of the truth.

Rakoff won't give that to Palin.

"Perhaps recognizing that this Court is not free to disregard preced3ent even if it were so inclined (which in this case it distinctly is not), [Palin] offers what she calls an alternative argument: that 'actual malice rule arose from distinguishable facts and should not be applied,'" writes Rakoff. "More precisely, [Palin's] argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an experiation date. To the extend plaintiff believes the actual malice requirement ought to be abolished, she should make that argument to the appropriate court — the Supreme Court."

At the Supreme Court, Justice Clarence Thomas wants to get rid of actual malice, but whether that would ever happen is a subject for another day. In the meantime, she needs to establish actual malice to prevail.

Fortunately for Palin, Rakoff looks at the evidence and decides there's enough there, especially when viewing it in a light that is most favorable to her. In particular, he points to strong evidence that Bennet may have recklessly disregarded truth by failing to read stuff that the paper's researchers had been sending him on the topic of the shooter. The judge adds that his failure to investigate could support an inference he purposely avoided the truth.

Then again, it's no slam dunk and will be decided at a trial that Rakoff sets for February.

In the opinion (read here), Rakoff writes "there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth."

Notably, Bennet resigned as opinion editor in June after a controversy over publishing an opinion piece by U.S. Senator Tom Cotton that called for a military response to civic unrest in American cities. That article spurred a rebellion by much of the paper's staff. Bennet later acknowledged that this piece hadn't been edited carefully enough.

Sarah Palin Defamation Suit Against New York Times Can Move Forward, Federal Judge Rules

by Bruce Haring, Deadline, AugustAugust 28, 2020

Sarah Palin’s defamation suit against the New York Times can move forward, a federal judge said on Friday.

US District Court Judge Jed Rakoff rejected the Times bid to dismiss the suit, which arose over a 2017 editorial Palin claims wrongly linked her to the 2011 mass shooting of Congresswoman Gabrielle Giffords. Palin was a 2008 Vice Presidential candidate and is a former Governor of Alaska.

Rakoff today said there was “sufficient evidence to allow a rational finder of fact to find actual malice by clear and convincing evidence.” While Rakoff allowed that much of Palin’s case was circumstantial, it was strong enough that a jury might find the Times and its former editorial page editor James Bennet acted with “actual malice by clear and convincing evidence.”

Rakoff scheduled a Feb. 1, 2021 trial. Read the court documents here.

“We’re disappointed in the ruling but are confident we will prevail at trial when a jury hears the facts,” Times spokeswoman Danielle Rhoades-Ha said.

The 2017 editorial came after an Alexandria, Virginia mass shooting that wounded four people, including then-House Majority Whip Steve Scalise. The editorial said that the 2011 Giffords shooting came after Palin’s political action committee had circulated a map that put 20 Democrats, including Giffords, under “stylized cross hairs.”

The Times later issued a correction, saying there was no link between “political rhetoric” and the Giffords shooting. Bennet said he had not intended to blame Palin.

Rakoff disagreed. He said Bennet’s substantial rewrite of an earlier draft, and admission he was aware “incitement” could mean a call to violence, could suggest actual malice. Rakoff also noted that Bennet may have ignored materials that were not in step with his “angle” on the editorial, something that could be construed as a reckless disregard for the truth. .

In its ruling (read it here), the three-judge US Court of Appeals for the Second Circuit vacated and remanded Rakoff’s original ruling, reached after hearing from testimony from Bennet, on procedural grounds. Therefore it did not offer an opinion on the merits of Palin’s case.

“The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”

Bennet testified in the unusual hearing that he did not intend to draw a “causal link” between the 2011 shooting that left Giffords severely wounded and a notorious “crosshairs” map distributed at the time by a Sarah Palin PAC.

Listening to Bennet’s testimony and considering the circumstances of law and otherwise, Rakoff made the call that Palin’s case could not effectively demonstrate actual malice, as would be required to move the matter forward.

Writing the Second Circuit’s ruling, Judge John M. Walker noted that it was clear Rakoff “viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides.”

Leon County Judge Charles Dodson is charged with overseeing the lawsuit challenging the constitutionality of Florida's school reopening order. [ 2nd Judicial Circuit of Florida ]

School reopening lawsuit: Judge rules in favor of Florida teachers

TampaBay.com

By Jeffrey S. Solochek, August 24, 2020

The Florida Department of Education quickly appealed the ruling, which called the state's actions unconstitutional.

Leon County Circuit Judge Charles Dodson ruled in favor of Florida’s statewide teachers union Monday, saying Department of Education officials “essentially ignored the requirement of school safety” when they ordered campuses to reopen for face-to-face classes this month.

Dodson also found that the department’s order, issued July 6, trampled on school boards’ constitutional authority to operate their own school systems.

“The districts have no meaningful alternative,” Dodson wrote. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”

Taryn Fenske, a spokeswoman for the Department of Education, said the state had filed its appeal before the close of business Monday. Education commissioner Richard Corcoran said he was “100 percent confident” the state will win.

The lawsuit was filed by the Florida Education Association, a labor organization representing about 145,000 teachers across the state.

“This fight has been, and will continue to be, about giving every parent, every teacher and every student a choice, regardless of what educational option they choose,” Corcoran said in a statement. “If you are one of the 1.6 million students who have chosen to return to the classroom, a parent, or a classroom teacher that wanted to educate their student in person, we strongly encourage you to call the Florida Education Association and tell them to drop this frivolous lawsuit.”

Through questioning during Friday’s closing arguments, Dodson hinted that he was interested in a solution that did not have school districts facing a monetary hit for taking actions that they deemed in the best safety interest of their students and staff.

“An injunction in this case will allow local school boards to make safety determinations for the reopening of schools without financial penalty,” he wrote. “This is what the local school boards were elected to do.”

He ruled that the order would become constitutional if the unconstitutional portions were deleted, as the plaintiffs’ lawyers argued during their closing comments. So he struck out the order language relating to a required date to begin in-person classes, mandatory reopening plans and provisions that in recent weeks have tied districts’ reopening decisions to state funding.

The judge used Hillsborough County’s experience as a primary example in the case. The Hillsborough School Board voted 5-2 to delay reopening its classrooms by four weeks, relying on the advice of several local health experts.

When informed of that move, Corcoran deemed the district’s action as violating the reopening order and warned officials they could lose up to $23 million monthly if they did not make changes. After trying to reach a compromise, the district changed direction without a School Board vote and announced it would reopen campuses Aug. 31 — three weeks earlier than planned.

Students began their classes online on Monday.

The district “had no real choice,” Dodson wrote. The state, he found “arbitrarily prioritized reopening schools statewide in August over safety and the advice of health experts; and all school districts complied in order to avoid a drastic loss of State funding.”

Hillsborough School Board member Tamara Shamburger, who testified for the plaintiffs, said she was excited about the ruling and pleased the judge recognized the importance of local decision making in these matters. She anticipated the board, which meets Tuesday, will revisit the situation.

“Our vote is still our vote, which is to delay the first four weeks,” Shamburger said, noting no action had been taken to overturn that decision. “I absolutely believe that ... we must have this conversation.”

The Pinellas County School Board, which opened both in-person and remote classes on Monday, also meets on Tuesday, where it, too, could discuss the ruling and its role in reopening.

Board chairwoman Carol Cook said she was thrilled the judge ruled in favor of local control of schools. But she had her doubts about changing direction on the school year.

“So far, I’m hearing that things went well” on the first day, Cook said. “I would have to really give it some serious thought whether we want to throw everybody back into disarray.”

Pasco County School Board vice chairman Allen Altman did not anticipate any change in his district, where about 60 percent of students returned to campuses for classes on Monday.

“I’ve talked to several school leaders today and they all say that opening went great,” Altman said via text message. “They reported that students, parents and school staff were all excited to be back.”

Ron Meyer, one of the union’s attorneys, said that the judge’s order would allow districts act as they see fit. They could delay reopening buildings without financial penalty, for example, if local officials decided to do so based on the advice of health experts.

It still could be a dicey move, though, he noted.

That’s because the state’s appeal triggers an automatic stay of the ruling. The plaintiffs likely will seek an order overturning the automatic stay, Meyer said.

If the stay remains in effect, it’s as if the judge’s order does not exist. If the stay is removed, then the order stands.

Florida Education Association president Fed Ingram called on Corcoran and Gov. Ron DeSantis not to appeal the case.

“Let’s work together,” Ingram said during a video news conference Monday. “We can do this together.”

The judge issued his order after two full days of testimony, and two hours for closing arguments. The lawyers representing the state presented witnesses to back the contention that children do not pass COVID-19 to adults, which the plaintiffs called “fallacious,” and that the risks of keeping schools closed are more detrimental than opening them.

They further argued that teacher plaintiffs in the case, who said they were faced with returning to unsafe work conditions or quitting, had no legal injury. They said teachers could file grievances against their districts through their contracts to fight such decisions.

But the defense lawyers also acknowledged that the districts did face stiff financial penalties if they didn’t comply with the reopening order. They suggested that, since no school boards were party to the suit, they were not coerced into adopting the plans, which they weren’t forced to submit.

Dodson disagreed with that assessment, suggesting they were financially bullied into compliance, which he said is unconstitutional. He further noted that the order’s provision allowing boards to seek advice and orders from health department officials to remain closed was “essentially meaningless,” though it sounded good.

“Plaintiffs presented convincing evidence that state health officials were instructed not to provide an opinion on the reopening of schools,” Dodson wrote. “Defendants reduced the constitutional guarantee of a safe education to an empty promise, in violation of the Florida Constitution.”

Randi Weingarten, AFT President

Battle over COVID-19 school openings goes to the courts

BY JOHN KRUZEL - 08/30/20 10:30 AM EDT

Teachers unions are waging court fights across the country aimed at unwinding what they say are unsafe and politically motivated timetables for reopening schools that risk exposing personnel to the coronavirus pandemic.

State officials eager to ramp up brick-and-mortar operations are facing lawsuits from Florida to Texas to Iowa over reopening plans as well as access to the COVID-19 infection data needed to monitor the rate of spread within school communities.

At the same time, lawsuits are flying from the opposition direction: Parents in several states, including New York, Massachusetts and Oregon, dissatisfied with web-based teaching alternatives, are suing to force state officials to reopen physical schools sooner as courts are increasingly called upon to referee the fight over education in the age of coronavirus.

“A legal storm is brewing as safety and social distancing requirements for a physical return to school begin to take shape around the country,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, wrote on the education website The 74.

As millions of students prepare for the first day of school — whether in-person, remote or a hybrid of the two — the fight over the reopening physical school buildings is likely to intensify.

The debate over in-person K-12 instruction planning is inseparably tied to the issues of child care needs and parents’ ability to return to the workforce to help revive the struggling economy, all of which is playing out against the backdrop of a fast-approaching November election in a country that has seen nearly 6 million cases and more than 181,000 deaths from COVID-19.

Perhaps the highest-profile legal battle is taking place in the courts of Florida, where Republican Gov. Ron DeSantis signed off last month on an emergency order over school reopenings.

Under the order, most Florida school districts would be required to hold in-person classes five days a week by the end of August or risk losing funding. President Trump, who counts DeSantis as a close ally, has also threatened to cut off federal funding for schools if they do not resume in-person learning this fall.

The Florida policy prompted a lawsuit from the Florida Education Association (FEA), a statewide teachers union, and several other plaintiffs in favor of a more cautious return to in-person teaching.

“Public schools are not designed for COVID safety, and indeed, the government has recognized that they are high-contact environments,” said Kendall Coffey, the lead plaintiff’s attorney in the Florida case, who likened prematurely opened schools to “disease factories” and called the Florida policy “financial bullying.”

“There are any number of issues, in terms of hallway sizes, the flow of students in and out of classrooms, ventilation, even how many students go into the bathroom,” he told The Hill. “There are many elements that are virtually impossible to guarantee when you're dealing with children in large amounts.”

On Aug. 24, a Florida judge ruled in favor of the union and temporarily halted the statewide order. In his decision, Judge Charles Dodson struck down the order’s unconstitutional provisions and blasted DeSantis for having “essentially ignored” the state's constitutional requirement that schools be operated safely.

“The districts have no meaningful alternative,” wrote Dodson, of Leon County. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”

A Florida appeals court agreed to temporarily halt Judge Dodson’s order from taking effect while DeSantis appeals.

The state contends that the benefit of in-person instruction outweighs the health risks associated with reopening brick-and-mortar schools. Some Florida school officials have also declined to disclose incidents of positive COVID-19 cases to school communities, citing the need for patient privacy.

Attorneys for Florida have also argued in hearings that courts should not substitute their judgment for that of policymakers who have balanced all the equities and decided a prompt in-person reopening is the best policy.

Randi Weingarten, president of the American Federation of Teachers (AFT), one of the largest teachers unions in the country, said Florida has its priorities backward.

“What their arguments show is that they don’t care about human life,” Weingarten told The Hill.

According to Weingarten, internal AFT polling in June showed that about 3 in 4 teachers said they would be comfortable returning to the classroom if guidelines from the Centers for Disease Control and Prevention (CDC) were implemented in schools.

But she predicts that attitudes among teachers have shifted dramatically in past months as the Trump administration has failed to adequately manage the virus to ensure schools can be reopened safely.

“We're polling right now,” she said. “And my hunch is that just like the public polls, it's totally flipped.”

The AFT is backing lawsuits in Florida, New Mexico and Texas. Before schools can reopen safely — for what Weingarten calls “the biggest move indoors that the nation has done since March” — the group says local positivity rates should be below 3 percent and schools should have visibility into daily transmission rates.

The union is also pushing for protocols that involve testing, contact tracing and isolation and implement best practices from the CDC for things such as ventilation, cleaning, physical distancing, mask-wearing and other safeguards.

As teachers unions make their case in court, parents in at least five states have filed lawsuits of their own to accelerate school reopenings.

A nonprofit litigation group called the Center for American Liberty, co-founded by lawyer and GOP official Harmeet Dhillon, is backing one such suit in California. Democratic Gov. Gavin Newsom’s restrictions on in-person school openings in the Golden State will affect an estimated 80 percent of K-12 students.

“The effects of this ham-handed policy are as predictable as they are tragic,” the lawsuit filed in a federal court in California states. “Hundreds of thousands of students will essentially drop out of school, whether because they lack the technological resources to engage with ‘online learning’ or because their parents cannot assist them.”

The litigation raises concerns about everything from school closures exacerbating the achievement gap and disproportionately harming special needs students and those without convenient internet access to challenges over the constitutional validity of government health orders.

Weingarten, of AFT, said it’s important to remember that despite seemingly irreconcilable differences over the policy details, all parties want to see schools reopen as soon as it’s safe to do so.

“None of us believes that remote is a substitute,” she said. “It's a supplement.”

Aleksandr Pikus

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, August 31, 2020

Head of New York Medical Clinics Sentenced to 156 Months in Prison for Multimillion-Dollar Money Laundering and Health Care Kickbacks Scheme

A Brooklyn man was sentenced to 156 months in prison today for his role in a vast multimillion-dollar health care kickback and money laundering conspiracy, the Department of Justice announced today.

Aleksandr Pikus, 45, of Brooklyn, New York, was sentenced by U.S. District Judge Ann M. Donnelly of the Eastern District of New York. Judge Donnelly also ordered Pikus to pay $39.4 million in restitution and to forfeit $2,614,233. On Nov. 15, 2019, after a two-week trial, Pikus was convicted by a jury of one count of conspiracy to commit money laundering, two counts of money laundering, one count of conspiracy to pay and receive health care kickbacks and one count of conspiracy to defraud the United States by obstructing the IRS.

“For nearly a decade, Aleksandr Pikus stole millions of dollars from the federal Medicare and Medicaid programs in a major healthcare kickback, money laundering and tax fraud scheme,” said Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division. “This significant sentence holds Pikus accountable for his leadership role in this scheme and reflects the Department’s commitment to protecting our valuable federal healthcare programs and their beneficiaries from this kind of fraud.”

“The defendant’s key role in an elaborate scheme to steal and conceal tens of millions of dollars from the Medicare and Medicaid programs, was staggering in scope and deserving of the significant punishment he received today,” stated Acting U.S. Attorney DuCharme. “This office takes very seriously its obligation to protect government funds that provide vital medical coverage counted upon by individuals and families who qualify because of their low income, disability or advanced years.”

“Pikus was the kingpin running a massive money laundering and kickback health care fraud syndicate,” said Scott J. Lampert, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services. “Now, like others who plot to steal from government health programs, he is paying a heavy price for his crimes. Along with our law enforcement partners, we will continue to root out individuals who steal vital taxpayer-provided health funds.”

“The defendant’s greed and desire for money drove him to perpetrate crimes against our healthcare system and prey upon the vulnerable in our society.,” stated IRS-CI Special Agent in Charge Larsen. “Justice has been served and IRS-CI will continue to work alongside our counterparts to uncover these schemes to hold these criminals accountable for their actions.”

According to evidence presented at trial, Pikus and his co-conspirators perpetrated a scheme through a series of medical clinics in Brooklyn and Queens over the course of nearly a decade, which clinics employed doctors, physical and occupational therapists, and other medical professionals who were enrolled in the Medicare and Medicaid programs. In return for illegal kickbacks, Pikus referred beneficiaries to these health care providers, who submitted claims to the Medicare and Medicaid programs.

Pikus and his co-conspirators then laundered a substantial portion of the proceeds of these claims through companies he controlled, including by cashing checks at several New York City check-cashing businesses. Pikus then failed to report that cash income to the IRS. Instead, Pikus used the cash to enrich himself and others and to pay kickbacks to patient recruiters, who, in turn, paid beneficiaries to receive treatment at the medical clinics. The evidence further established that Pikus and his co-conspirators used sham shell companies and fake invoices to conceal their illegal activities.

More than 25 other individuals have pleaded guilty to or been convicted of participating in the scheme, including physicians, physical and occupational therapists, ambulette drivers, and the owners of several of the shell companies used to launder the stolen money.

This case was investigated by the HHS-OIG and IRS-CI, and was brought as part of the Medicare Fraud Strike Force, under the supervision of the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Eastern District of New York. Assistant Chief A. Brendan Stewart and Trial Attorneys Sarah Wilson Rocha and Andrew Estes of the Fraud Section are prosecuting the case.

The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country. Since its inception in March 2007, the Medicare Fraud Strike Force, which maintains 15 strike forces operating in 24 districts, has charged more than 4,200 defendants who have collectively billed the Medicare program for approximately $19 billion. In addition, the U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services, working in conjunction with the HHS-OIG, are taking steps to increase accountability and decrease the presence of fraudulent providers.

Department of Health and Human Services’ LGBTQ+ Discrimination Rule Blocked by Eastern District of New York

Tuesday, September 8, 2020

On August 17, 2020, the Eastern District of New York granted the Plaintiffs’ request for a stay and a preliminary injunction precluding the U.S. Department of Health and Human Services (HHS) from implementing a recently issued final agency rule that would remove anti-discrimination provisions presently provided under the Affordable Care Act (ACA) for LGBTQ+ patients. (Walker v. Azar, E.D.N.Y., No. 1:20-cv-02834, Order 08/17/20). The Human Rights Campaign challenged the HHS rule on behalf of two transgender women, who sought a nationwide injunction to prevent its implementation. U.S. District Judge Frederic Block granted the request for a stay and preliminary injunction the day before the rule was to go into effect.

Announced in June, HHS’s proposed final rule struck language from existing ACA regulations that afforded protection from discrimination to individuals on the basis of “sex stereotyping, or gender identity.” Those ACA regulations define sex stereotyping as “stereotypical notions of gender, including expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms or body characteristics.” HHS’s proposed new final rule sought to impose a narrower definition of “on the basis of sex,” arguing the ACA did not provide discrimination protection for patients based on a medical provider’s “stereotypical notions of masculinity and femininity.” If this new HHS rule were to go into effect, it would effectively remove gender identity and sex stereotyping from the ACA’s anti-discrimination protections, which themselves are grounded in Title IX of the Education Amendments of 1972.

In enjoining implementation of HHS’s new rule, the Walker Court noted that the rule ignored the Supreme Court’s recent decision in Bostock v. Clayton Cty. Ga., 140 S. Ct. 1731 (2020), which was issued three days before HHS’s new final rule was to take effect. This omission was conspicuous because, in Bostock, the Supreme Court held that discrimination “on the basis of sex” encompasses biased treatment predicated on gender identity or sexual orientation. Although Bostock focused on the definition of “sex” under Title VII of the Civil Rights Act, both HHS and the Court acknowledged the applicability of this decision to Title IX given that “Title VII case law often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex.’” The Walker Court thus concluded that HHS’s rule contravened Bostock insofar as it removed protections the Supreme Court expressly recognized.

In finding the Plaintiffs were likely to succeed on the merits of their claim (a necessary element to entry of a preliminary injunction), the Walker Court expressly noted that the Supreme Court issued its Bostock decision three days before the proposed rule was set to take effect, but HHS chose not to revisit its new proposed rule in response to the decision. This led the Walker Court to hold Plaintiffs were likely to establish HHS’s decision was arbitrary and capricious in light of the agency’s failure to revisit its proposed Rule when Bostock was decided. Per the Walker Court, “[t]he timing might […] suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision, [b]ut whether by design or bureaucratic inertia, the fact remains that HHS finalized the 2020 Rules without addressing the impact of the Supreme Court’s decision in Bostock.”

Walker deals a clear blow to HHS’s effort to exclude gender identity from the protections afforded under the ACA. It remains to be seen whether the HHS will accept the decision, seek to amend the rule to account expressly for Bostock, or appeal. In the meantime, the rule is on hold.

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