Gotham Gazette

The Place for New York Policy and politics

Citizens Union

Public Safety

Fewer Prisoners, Fewer Prisons?

prisons, marcy correctional facility
The Marcy Correctional Facility in upstate Oneida County.

It seems simple. With prison populations declining and crime rates plummeting, Gov. David Paterson has proposed closing four upstate correctional facilities. It is estimated the move would save $7 million this year and $52 million in the next fiscal year. And in a year when the governor is proposing billion dollar cuts to education and health care, one might think closing three prisons in upstate New York would be an obvious move.

It's not. While some advocates charge that Paterson's planned closings don’t go far enough, a combination of political and economic concerns could save the three institutions on Paterson's list.

For example, the Moriah Shock Correctional Facility, which Paterson has proposed closing, is in the area where the Lake Champlain Bridge was destroyed, leaving the area economically crippled. Area resident say they cannot afford to lose the prison as well.

The Ogdensburg Correctional Facility, to take another instance, is in the district of Sen. Darrel Aubertine, an upstate Democrat who helps make up his party's uber-slim Senate majority. Voting for a budget that closed the prison in his district would be political poison for the freshman senator, and it is unlikely his conference would support anything that would put his seat in jeopardy.

Mount Lyon Correctional Facility is also on Paterson's list.

How Much They Cost

Despite the opposition to the closings, the Correctional Association of New York, an advocacy group, would shut more facilities and came to Albany on Tuesday with hundreds of members to press the legislature on the issue. The association estimates that New York state prisons have 6,300 empty beds that cost taxpayers some $140 million over a two-year period. Incarcerating a single individual costs the state $55,000 a year. Meanwhile, it is estimated that maintaining an empty bed costs around $22,000 annually.

Where They Count

The city of Ogdensburg has a population thought to be over 11,000 and their median household income is a little over $23,000 -- compared to the national median of around $40,000. The city has an 11 percent unemployment rate. The Ogdensburg Correctional Facility employs 287 workers and has an annual payroll of over $20 million.

Ogdensburg City School District Superintendent Timothy M. Vernsey told the Watertown Daily Times that the closure would have a trickle down effect. "As employees relocate for work, it negatively affects our enrollment numbers, which, in turn, affects the amount of state aid the district will receive," he told the Daily Times. "Eliminating a major employer in an already stressed community is devastating news."

The Essex County Board of Supervisors commissioned an economic report on the impact closing the Moriah Shock Correctional Facilitiy in Mineville would have. The facility provides 102 jobs but the report says those jobs make up about 1 percent of the county economy. According to the report, closing the prison would send the area's 10.3 unemployment rate up to 11.1 percent.

According to the board, the prison provides the area with about $8 million in revenue a year -- almost the same amount of money the state would save by closing the prison. The report also considered the benefit that the county received from having inmates perform community service. Prisoners did 94,136 hours of community service in 2009 -- a third of which was working for the Department of Conservation. The report states that inmates are often the frontline labor crews that clean up from natural disasters.

While these communities get jobs from the prison system, they also get political clout because the census counts inmates as living where they are jailed, not in the communities they hail from. Prisoners in New York State are mostly blacks and Hispanics who come from poor neighborhoods in the city. Most correctional facilities are far upstate in small, rural, white communities. The prisoners boost the population of some towns that have been losing people to other parts of the state and the country.

Democrats have introduced legislation that would count inmates where they come from when it comes to drawing legislative districts. This would almost certainly result in more members of the State Assembly and Senate from the city and fewer from upstate. Not surprisingly, Republicans from rural upstate prison communities steadfastly oppose it.

Most Democratic senators are loathe to talk about the chances of prison closures making it through this budget process, even though a good majority of them are in favor of the idea. "Shut 'em down! I'm sick of hearing Republicans complain they won't have anyone to cut their grass," said one Democratic senator whose district does not have a prison.

"Since entering the Senate, I have heard my downstate Democratic colleagues repeatedly call to close our upstate facilities, often citing what they believe to be an unfair counting of inmates in the federal census," said Sen. Betty Little, who represents a district where two prisons would be closed, in a statement released after Paterson's budget was revealed. "Closures not only directly impact those employed at correctional facilities, but there's also a ripple effect that is tough for rural and economically depressed communities in the North Country to absorb."

State Sen. Liz Krueger said the communities would need help if the prisons were to leave. "We need to right-size the prison system," she said. "Prisons rank very low on the scale of good economic development. But at the same time we need to help upstate with economic development."

Caitlin Dunklee of the Correctional Association says sending prisoners upstate from New York's downstate communities not only devastates those communities’ voting power but also destroys families. "Ogdensberg is literally right on the Canadian border," said Dunklee. "Free transportation is hard to find and making a 10-hour trip can be impossible" She says this leads to mothers losing custody of their children and other inmates losing the support of their families.

Counting Beds -- and Who's in Them

On Tuesday, lobbyists and advocates on different sides of the issue stood face to face, jam-packed into elevators, spilling out of meeting rooms, standing at ends of halls, lost and looking for room numbers. At the Legislative Office Building there was no question that budget season is in full swing. Advocates from the Correctional Association went into meetings with legislators and their staffs touting statistics that point a steady decline in prison population.

According to the state the inmate population has declined by almost 14,000 over the last 10 years -- a rate of nearly 30 percent. The number of inmates has declined by 4 percent this year alone and it is expected to decline by another 1,000 during the 2010-2011 fiscal year. But just last week legislators were being told a different story by lobbyists for the New York State Correctional Officers and Police Benevolent Association. There are approximately 59,000 inmates in New York's correctional system.

The correctional officers' union and lawmakers who represent districts that are home to the facilities say that prisons are actually at or above capacity. Donn Rowe, president of the union, testified at budget hearings earlier this year that cutting prisons will put communities in "serious jeopardy," due to security concerns. He said New York prisons are operating at 102 percent of capacity, with maximum security prisons at 122 percent. He also said prisoners are being forced to double up in cells that were originally designed to house one inmate. That situation, he said, could lead to more violence.

Eric Kriss, spokesperson for The Department of Correctional Services, says the correctional workers' tally doesn't take into account inmates who are in work release programs, in the hospital or in other disciplinary housing situations; instead they compare the number of prisoners to the number of beds that exist. "Even if by some miracle one day there wasn't anyone who needed disciplinary housing or to be in a treatment bed," said Kriss, "we would have the space for them because we would convert those beds to suit the general population."

The Department of Correctional Services has initiated a bed consolidation process to move staff and inmates out of sparsely populated prison wings. It estimates that move will save taxpayers around $8 million without costing any jobs. In fact, the three prison closures proposed in Paterson's budget would not necessarily lead to any layoffs, according Kriss. Staff at closed prisons will be offered jobs at other locations. The problem, he said, is that a lot of civilian (i.e. non-officer) staff may not want to move to a new area.

The Department of Correctional Services finds itself in the middle of the push to close prisons on hand and the drive to preserve every last one on the other. Department officials see themselves somewhere in the middle -- wanting to close some prisons that make fiscal sense to close but wanting to be able to respond should the inmate population increase.

Getting People Out of Prison

The Correction Association thinks an increase is unlikely in the near future. Instead, they think the state will see a drastic drop in the prison population thanks to the repeal of the Rockefeller drug laws. Department of Corrections officials say that with the repeal having gone into effect only a year or so ago, it is far too early to tell if a drastic reduction will materialize.

The Correctional Association is pushing for a number of measures that would leave more prison beds empty. For example it would like to see an increase in work release programs so that more inmates could transition back to a normal life. That, Kriss said, would require the legislature or governor to change a measure enacted during the Pataki administration that reduced the kinds of offenders who are eligible for work release. The Correctional Association is also pressing the legislature to reform parole so that minor violations would not land an offender in prison. The Association also wants to see the Parole Board increase the numbers of prisoners granted release on parole and awarded merit time based on behavior, so that prisoners who behave well get out more quickly.

Unsatisfied with the state's approach to shutting jails, the association plans on starting a board to review prison populations and determine which prisons should be closed. "We would like to start a community review board for prison closures. We need to see which prisons make more sense to close,"said Dunklee.

The Correctional Association also thinks money saved by closing prisons should go to creating opportunities in communities across the state. The group wants some money spent on community-based alternative sentencing programs, drug treatment and job training programs. As for the upstate communities, Dunklee said she thinks they need help. But she added, "Prisons should not be used as economic engines."

How to Fix New York's State Police

When the New York Times revealed that state troopers had been part of an alleged effort by Gov. David Paterson's office to convince a woman not to seek an order of protection against his aide David Johnson, not many around Albany were surprised that members of the executive services detail were involved.

In recent years, the detail has been implicated in a number of scandals involving the political influence of the governors it is charged with protecting.

In fact, a number of legislators pushing for a commission to look into how politics influences state troopers say they have been concerned with the issue for quite some time. Sen. Eric Adams and Assemblyman Hakeem Jeffries say they has planned to introduce the legislation to create the commission well before the Paterson incident hit the front page of the Times. The latest revelations, though, have given their efforts increased prominence and prompted other politicians and law enforcement officials to consider how New York runs its state police force.

Beyond Their Reach?

In the latest case, state troopers contacted the alleged domestic violence victim in a case where they had no jurisdiction. City police were involved in taking the domestic violence call, and state troopers traditionally do not have a role in policing New York City.

State Police Commissioner Harry Corrbitt's explanation of the situation to the New York Times didn't help ease anyone's concern. "We never pressured her, at least what I was advised; we never pressured her not to press charges," Corbitt, who Paterson appointed, said. "We just gave her options."

Corbitt even said the detail's actions were standard operating procedure. "It's typical if it involves anything that might involve a media event; it doesn't have to be a senior official to the governor," Corbitt told the Times. "It could be a politician or a high-profile physician, anything that might pique interest in the press, because it's a special circumstance." Experts and legislators say that that is far from standard operating procedure.

Deputy Secretary for Public Safety Denise O'Donnell, who was Corbitt's boss, was so upset about the situation that she resigned. O'Donnell said Corbitt had assured her previously that state police had no contact with the woman in the case, Sher-unna Booker. Corbitt, who resigned this week, said O'Donnell had misunderstood him.

Regardless of exactly who directed the state police to visit Booker -- one of the issues now under investigation by Attorney General Andrew Cuomo -- their action clearly did not represent standard operating procedure and raises troubling question about political influence on the agency.

This issue of politicians' influencing the leadership of the state police has reared its ugly head multiple times over the years, under three different governors, despite action by two of them to stop it. Former Gov. Eliot Spitzer put O'Donnell in charge of the state police in reaction to the Troopergate scandal. In that case, Spitzer's office instructed troopers to keep tabs on former Sen. Majority Leader Joe Bruno. Locked in a bitter political battle with Bruno, Spitzer hoped to discredit the senator for his use of state-paid travel to political events.

But O'Donnell's appointment didn't fix things. In 2008 when Paterson became governor, he asked Cuomo to look into whether there was a group of rogue, politically motivated troopers inside the capitol detail. His new superintendent, Corbitt, increased the size of the executive detail and tried to change the culture of the force with new training.

Cuomo's report found no criminal wrongdoing among troopers but did conclude that the state police leadership had been greatly influenced by politics. Cuomo's report said that former State Police Superintendent Wayne Bennett, who served under Gov. George Pataki, ordered troopers to hide a report detailing a domestic violence incident that took place at the home of former U.S. Rep. John Sweeney -- the man labeled Congressman Kick Ass by President George W. Bush for his role in the Brooks Brothers Riot during the Florida vote recount in 2000.

Start at the Top

The recent revelations by the New York Times make it clear that politics still have a powerful influence over state police actions. Members of Paterson's personal security detail visited the woman who was seeking an order of protection against his aide. Experts say the kind of troopers who get assigned to security details such as Paterson's earn their position through their political connections. Now Adams and Jefferies propose creation of a commission that will "investigate systematic misconduct, abuse of power and inappropriate political intervention with respect to the New York State Police."

The commission would be modeled after the Knapp Commission, which was used to investigate corruption in the city police in the 1970s following the revelations by officer Frank Serpico .

"The role of the New York State Police must be free from the influence of politics," said Adams, a former captain in the New York City Police Department. "The state police cannot serve, protect and defend the people if the integrity of their decisions is hamstrung by political concerns. The commission established by our legislation will guarantee the independence of the state police and ensure that its focus on law enforcement and crime prevention remains undiluted by any outside pressure or manipulation."

The State Police Benevolent Association, the union for the troopers, supports the idea. "The rank-and-file troopers have not been involved in the reported political manipulation," said PBA President Thomas H. Mungeer. "Any commission that would potentially review the New York State Police should do so starting at the top management. However, if a progressive and strong leader is appointed as superintendent of the state police in the meantime, that may negate the need for such a commission."

Terry O'Neill, a public safety advocate and frequent Albany commentator, agrees that the review should start at the top. "The organization does not need to be restructured. The state police is a very healthy, sound organization. The problems seem to stem from how they interact with the first family. Something is going on between the second floor and the third, where the superintendent's office is." O'Neill also said he thinks a strong superintendent could install the discipline the organization needs.

"A lot of us worry that the brand of the state police is being tarnished with what is going on," he said "I don't know if this is criminal or not, but this is unethical," said O'Neill. "Everyone should be on their best behavior, and some people need to be fired."

O'Neill, who worked as a legal advisor for the New York State Division of Criminal Justice Services under Gov. Mario Cuomo, said he never saw this kind of thing go on between troopers and Cuomo's office during his time at the capitol. "Back to the very beginning, state troopers have prided themselves on their relationship with the governor," said O'Neill, "but this is making people look bad."

Eugene O'Donnell, a professor at John Jay College of Criminal Justice and a city police department veteran (and no relation to Denise), said he also believes the new commission should focus on leadership. But, he said, picking those who would sit on the commission is critical. "You need to staff the commission with former FBI agents, people from law enforcement -- rock solid police, judges -- people who don't take calls from people, people who can say no to a politician."

Secondly, he said, the commission should consider establishing rules to limit contact between the executive branch and the state police superintendent. "You need to clear things up and make sure there are only two times when the governor should speak to the superintendent: when he hires him and when he fires him. It should work something like the Bloomberg-Kelly model, the opposite of the Giuliani-Kerick model."

Maria Haberfeld, professor of police science at John Jay College of Criminal Justice, said that she would advocate changing how the superintendent is appointed. "It is very hard to change police culture. The police are a very political organization -- people may not realize it but they are appointed by politicians. So if you want to change the culture you have to change this -- not so much the organizational structure, but who heads it."

Haberfeld said she thinks an external commission made up of "individuals who can be held accountable for their choices" should be created to name a superintendent. "Until the appointment isn't in the hands of one individual, nothing will change," said Haberfeld.

Eugene O'Donnell disagrees. He points to former Los Angeles Police Chief Daryl Gates, who was appointed by commission, but according to O'Donnell, was answerable to no one but himself.

What should a commission look for in a candidate for the job? "You need to look for a candidate who has a history of questioning the politicians. You can find it in their file. I believe in promoting from within the organization, but you don't want someone with a perfect file," said Haberfeld. "You don't want someone with a stellar record, because I would say this is someone who will do anything they are told. I would look for someone with a history of being independent, not just doing what the mayor or governor tell them. You're looking for a troublemaker -- not the company man or woman who will always do what they are told."

Too Much Detail

Eugene O'Donnell and others have suggested that reducing the 200-trooper executive detail might help the situation. "Two hundred people! That is the police force of White Plains protecting one person. It goes to their head," O'Donnell said. "That's why you have New Jersey Gov. Jon Corzine speeding down the highway to get to the Rotary Club. He's got guys with receivers in their ear. It makes these guys feel above the law."

State police officials have pointed out that troopers from the executive detail aren't assigned solely to protect Paterson but also to provide security for Empire State Plaza, the Executive Mansion, the State Office Campus and Paterson's office in Manhattan.

Nevertheless, O'Donnell suggested there might be ways to reduce the reliance on state troopers as members of the detail for these tasks. Others have suggested rotating the troopers assigned to the detail out on a regular basis.

No matter the solution, legislators, experts and law enforcement officials say that action needs to be taken as quickly as possible to restore faith in the state police and to set an example for those inside the organization. "It's important to address this; this goes all the way down to the street cop who says, 'Oh, this is the way it works!" said O'Donnell. "'You have to be connected.' Well I don't think this is the way it works, but a statement needs to be made so that this does not affect morale and job performance -- 'cause you will get cops who say, 'See, this is how it works! I told you so.'"

Correction: This story originally incorrectly described the Knapp Commission. It has been conrrected.

City Emergency Response Team Had Key Skills for Haiti Mission

U.S. Air Force photo by Tech. Sgt. Michael O'Halloran
New York Task Force 1 search and rescue teams prepares to depart for Haiti.

Soon after a 7.0-magnitude earthquake rocked Port-au-Prince, Haiti, on Jan. 12, the United States began mobilizing its relief effort for the small, impoverished Caribbean nation. Two days later, responding to a nationwide call for aid to Haiti, Mayor Michael Bloomberg announced the deployment of urban search and rescue team New York Task Force 1 to help rescue victims. This New York City team, consisting of members of the police and fire departments, specializes in operations involving the collapse of heavy steel and concrete.

The team saved six lives including two children. Three victims were trapped beneath a collapsed grocery store, a middle-aged man was caught under the wreckage of a four-story building, and a young brother and sister were trapped under rubble for eight days. The children's father had been digging with a crowbar that whole time and passing water through a small opening to his children, miraculously keeping them alive. The eight-year-old boy, Kiki, and his ten-year-old sister, Sabrina, emerged extremely dehydrated but, "other than that, they looked like they were ready to play when they came out of the hole," Battalion Chief Joe Downey reported on the fire department's website.

As he was being pulled from the rubble, Kiki flashed a broad smile and raised his arms above his head in triumph as rescuers cheered. "It was the most incredible feeling," said Downey.

In situations such as this, speed is critical to saving as many lives as possible, and so this team mobilized shortly after the quake struck. But how are teams like New York Task Force 1 organized so rapidly, how do they carry out their operations, and who is responsible for their oversight and costs?

A National Network

New York Task Force One is managed by the city Office of Emergency Management. This team is one of 28 emergency response teams sponsored by the Federal Emergency Management Agency that are "strategically located throughout the United States" and "can be deployed within six hours of activation," according to the Office of Emergency Management website. In 1989, FEMA established the National Urban Search and Rescue Response System to assemble "local emergency services personnel into integrated disaster response task forces." This was expanded upon in 1991 in the Federal Response Plan, which sponsored the creation of such task forces around the country including New York's.

The federal government, not the city or the state, funds, trains and has the authority to activate these task forces in the event of disasters, natural or otherwise. "The team is funded by, coordinated and overseen by FEMA," said Seth Andrews, deputy press secretary for the Office of Emergency Management. But the city manages "communication between FEMA and the team" and "coordinating within the team itself." This, Andrews said, can include "everything from logistics for food [and] air transportation" to ensure that "team members can show up, pack up their things, load up their equipment and they can get to where they need to be."

The task force includes approximately 220 members from the police and fire departments that can be summoned for rescue operations. The state of New York has another task force, New York Task Force 2 based in the Albany area, but they were not activated for this crisis.

New York 1 can deploy either as a light task force of 34 people or a heavy task force of 80. Workers include emergency physicians, paramedics, structural engineers, hazardous materials technicians, heavy equipment operators, and specialists in canine units, as well as experts on communications, planning, and logistics.

"You do have some people that are there almost, in a sense, behind the scenes, that are helping to coordinate logistics, getting camp set up, things like that," said Andrews.

The Haiti Mission

For their mission in Haiti, the city's task force included 76 members of the police and fire departments and four canine units. They brought 20 tons of the latest technology and equipment including medical supplies and specialized rescue tools. The task force took microphones sensitive enough to detect human breathing, personal protection equipment, tents, power and ready-to-eat meals as well as listening devices, infrared cameras and motion detectors.

Four canines accompanied the team. "The canines that they traveled with are unique," Andrews said. "There are no other in the country of their kind. They are dual-trained meaning that these are regular patrol dogs so when they’re out here in the city they’re trained to apprehend criminals. But they're also cross-trained to be able to sniff out a human body that's still alive, they can detect a heartbeat."

New York Task Force 1 participates in exercises during the year as a unit and "within their respective agencies, they do extensive training on a day to day basis," according to Andrews. In November 2009, its members even participated in an exercise that tested the team’s response to a simulated earthquake.

The last time that the task force deployed was in 2008 for assistance after Hurricanes Ike and Gustav. Similar rescue teams have been utilized after catastrophes like the Oklahoma City bombing in 1995 and the 2001 attacks on the World Trade Center and the Pentagon. Though most fire departments are capable of "performing rescues in light to medium-sized construction collapses," only the urban search and rescue task forces have all the equipment and techniques necessary to operate within the most dangerous conditions according to the Office of Emergency Management website.

Led by battalion Chief Joe Downey, New York's team flew into Haiti in C-17 cargo planes on Jan. 16, two days after they were activated and scheduled to depart. The delay was due to "bottlenecking in and around the Port-au-Prince airport," said Andrews. The airport there, he said, was "jam packed because they had only one air strip that was open at the time."

On the Ground

Upon landing, the task force divided into two groups with each working 12-hour shifts. They relied on local residents to direct them to where people were trapped. Team members usually have enough equipment to be self-sufficient for up to 72 hours and can be re-supplied beyond that mark so that they are not a drain on important local resources but in Haiti, the team had enough supplies to sustain themselves for a week.

In Haiti, the U.S. rescue teams worked under the U.S. Agency for International Development, the State Department organization leading the relief effort. Similar FEMA-sponsored teams, including the Los Angeles County Urban Search and Rescue Task Force and the Virginia Task Force 2 Urban Search and Rescue team have helped in the ravaged Haitian Capital, Port-au-Prince. The country was divided into a grid so that the 46 teams from around the world were responsible for a designated area. These teams have rescued 132 individuals, with 47 saved by U.S. task forces, according to the mayor’s office.

The New York team returned home Jan, 24 after spending a week helping victims of the earthquake. On Jan. 26, the members of New York Task Force 1 were awarded commendations at City Hall for all their rescue efforts and for saving the lives of six people buried under rubble in Port-au-Prince.

"We are glad to have the members of our Urban Search and Rescue Team, who worked on the front lines of the global rescue effort in Haiti, back home, safe and sound," Mayor Michael Bloomberg said at the ceremony. "There's an awful lot of work ahead in Haiti, and an awful lot of mourning, but today, we thought it was important to recognize the members of Task Force One, who've made us proud once again."

Bloomberg honored not only the human members of NY-TF1 but also its canines with four specially made edible keys to the city for its German shepherds. "Six survivors out of thousands lost may not seem significant, but I think it's fair to say, to the six people and their loved ones it really means everything," the mayor said.

Task force member Lieutenant Bill Redding paraphrased a Winston Churchill quote when speaking to DNAinfo about the team's work in Haiti. “To every person comes a time in their life when they're tapped on the shoulder and asked to do something unique and specific to their talents. What a shame if that moment finds them unprepared for what would've been their finest hour," Redding said. "This team was tapped on the shoulder and, in my vision, it was their finest hour to date."

Teaching and Electioneering Don't Mix, Court Finds

electioneering in class
from photo (cc) flcker/baklein62

Public school teachers have constitutional rights to wear political buttons while in school, according to the United Federation of Teachers. But not according to the United States District Court in Manhattan.

In Weingarten v. Board of Education, a case first brought in 2008, a presidential election year, the plaintiffs, United Federation of Teachers and several individual teachers, claimed that the school chancellor's regulations banning campaign buttons and distribution of political materials among teachers in Board of Education buildings, i.e., schools, violated the teachers' free speech rights under the federal and state constitutions. (The case refers to the Board of Education throughout -- not the Department of Education.)

The chancellor's regulations provided that "while on duty or in contact with students, all school personnel should maintain a posture of complete neutrality with respect to all candidates." The regulation also banned the distribution, posting, of displaying of "material supporting any candidate, candidates, slate of candidates, or political organizations/committees" in any school building. While there were exceptions for political items of interest that might appear in teachers' newsletters, for example, the regulation generally prevented teachers from placing political material in colleagues' mailboxes or on teachers’ bulletin boards in teachers' meeting places.

Banning Buttons

When the case was originally brought in the U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan issued a temporary order, which stopped the city from banning candidate-related political material on teachers' union bulletin boards in areas closed to students, and also from placing such materials in staff mailboxes. But then -- and now in the latest decision -- the court denied the teachers' attempt to lift the ban on the wearing of political buttons. The court found a "clear relationship" between the ban on political buttons and the Board of Education's "legitimate pedagogical interests in avoiding the inevitable misperceptions among a minority of students that the views reflected by a teacher's political button are endorsed by the school district and also that the entanglement of their public educational mission with partisan politics."

In light of the court's 2008 interim order, the Board of Education revised its regulation to allow dissemination of the relevant materials solely among teachers. At the same time, it strengthened the section on political buttons to say, "While on duty or in contact with students, school personnel may not wear buttons, pins, articles of clothing or any other items advocating a candidate, candidates, slate of candidates or political organization/committee."

Chancellor Joel Klein's position was that "displays of political partisanship by teachers in the schools, particularly in the classroom, to a captive audience of students, are inconsistent with our educational mission. When teachers wear political paraphernalia in an environment free of partisan politician influence . . . . Partisan political activity by staff in the presence of students . . . sends the message that the view expressed carries the support of the school system."

To counter that position, the plaintiffs retained a professor of educational psychology. David Moshman of the University of Nebraska would testify if a trial were held, about "the capacity of adolescents, specifically high school age students, to understand the nature of free speech and official free speech not representing the curriculum viewpoint of the school."

The court gave little weight however to Moshman's statements, partly for technical reasons, but also on the merits. In papers submitted on behalf of the teachers' union, Moshman theorized that young children might be unable to distinguish between a teacher's opinions and the school's, and so the regulation might be reasonable in an elementary school. But for middle school students, he thought a teacher's explanation about personal free speech would be sufficient. And once in high school, he claimed, students "spontaneously understand that a teacher's [political] button is not part of the curriculum." Most of these teenagers, Moshman said, would understand the concept of free speech and a teacher's right to express political preferences even without an explanation. But Moshman did concede that a small percent of high school students might misunderstand.

Free Speech in Schools

Kaplan found plaintiffs' contentions lacked merit and dismissed the suit without it ever going to trial. In his written opinion, he said that policy makers overseeing "public schools are constitutionality permitted, within reason, to regulate the speech of teachers in the classroom for legitimate pedagogical reasons." The court then concluded that the appearance of political buttons worn by teachers, "may improperly influence children and impinge on the rights of students to learn in an environment free of partisan political influence."

The judge found that the regulation, when carried out in a professional manner and in good faith, is not a "covert attempt to favor one viewpoint over another." After more than a year of litigation, he declared the regulations to be constitutional.

Emily Jane Goodman is a New York State Supreme Court justice

Court Rejects Bid to Extend Grounds for Divorce in New York

Forty-nine states in this country recognize "no fault" divorce or allow divorce for "irreconcilable differences." Only New York requires that one party in all contested divorces establish that the other was at "fault." Unless a prior separation agreement has been filed, the state's law requires the plaintiff partner prove the other spouse committed adultery, abandoned them, was cruel or in prison.

Now, in Davis v. Davis, a Brooklyn appellate court has rejected a claim that might have expanded the grounds for divorce in the state. The court would not grant the wife a divorce after a 41-year marriage on the grounds of "social abandonment." Instead, the court ruled that social abandonment is not abandonment; only physical or sexual abandonment qualifies.

Terms of Abandonment

In this divorce case, euphemistically known as a "matrimonial" action, the plaintiff’s claim of abandonment or "constructive" abandonment was unsuccessful. Abandonment is defined as leaving without good reason and not returning for at least a year. In cases involving so-called constructive abandonment, the plaintiff alleges and proves that the defendant abandoned him or her unjustifiably by refusing, for at least one year, to have sexual relations despite repeated demands.

In her complaint, the wife, Novel Davis, did not allege that her husband, Shepherd Davis, refused to engage in sexual relations with her, but rather that he refused to participate in a mutual social life, such as dining together and sharing holidays and celebrations. Granting a divorce on this basis would, the court found, have the effect of expanding the grounds for divorce, which the court does not have the power to do.

"The plaintiff's allegation of social abandonment may appropriately be viewed as merely another way of claiming 'irreconcilable differences’ between spouses that do not recognize a cognizable ground for a divorce,” wrote Justice Mark Dillon of the Supreme Court Appellate Division, 2nd Department.

Novel Davis also had complained that her spouse's rejections constituted cruelty and inhuman treatment, but the cruel and inhuman allegation was not before the Appellate Division, so the decision concerned only the constructive abandonment claim.

"The essence of abandonment is the refusal of one spouse to fulfill 'basic obligations springing from the marital contract,'" the court said. Since the case did not involve one spouse leaving the home without good reason or locking the other spouse out of the marital home, the issue in Davis v. Davis, the court said, is whether refusal to share a life is as legally significant as refusal to have sex.

Evolving Definitions

Since 1926, abandonment in New York has been extended to "constructive" abandonment, which has meant the unjustified, willful, continual denial of sexual relations. The original case, though, involved a refusal to consummate a marriage until a religious ceremony was held.

In 1960, the New York State Court of Appeals noted that marriage "involves something far more fundamental than mere physical propensity, and, as a consequence, abandonment is not limited to mere technical physical separation.” The Court of Appeals theory in that case held that the denial of “a marital right strikes at the institution of marriage," and therefore the refusal by one to engage in a sexual relation “undermines the central structure of marriage.”

In explaining the rationale for not extending the definition of abandonment further in the Davis case, Dillon wrote for the court that the legislature has never expanded the definition of abandonment beyond its literal meaning, even though the Court of Appeals did extend its meaning to constructive abandonment or denial of sex. Allowing divorce on the grounds of "social abandonment," he said, would be the same as permitting divorce on the basis of "irreconcilable differences," which is not recognized as a basis for divorce in New York.

The Appellate Division also relied on the longevity of the current definitions. Since the definitions were long-standing, the judges ruled, there is nothing to suggest that the meaning has changed. In addition, broadening the grounds for divorce would usurp legislative function.

Returning to the 1960 language of the Court of Appeals, the Brooklyn court reiterated, "Sexual relations between a man and woman are given a social and legally sanctioned status only when they take place in marriage and in turn, marriage itself distinguished from all other social relations by the role sexual intercourse between parties plays in it."

The court further found that determining social abandonment would be difficult, subjective and not based on fact. That is, abandonment or even constructive abandonment involves a one-year period and specific details, while recognition of social abandonment would be vague. "We predict," said the court, "that . . . no matter what herculean efforts could be undertaken to establish its precise definition," the recognition of social abandonment as grounds for divorce "would open a quagmire of varied factual claims, defenses, and permutations that would be to the everlasting consternation of the matrimonial bar and bench.”

Fifty years later, the current decision adopts that thinking, though it adds, "Social interaction between spouses, while certainly important to a healthy marital relationship, receives less legal recognition and protection."

Emily Jane Goodman is a New York State Supreme Court justice.

Emily Jane Goodman is a New York State Supreme Court Justice

Courts Consider When a Rioter Stops Rioting

Gotham Gazette: Puerto Rican Day Parade riot aftermath
from photo (cc) Oquendo

In the city of parades, the chain of events sparked by the parade that was like no other may finally be ending -- nine years later. The U.S. Court of Appeals in Manhattan has issued an opinion ending the litigation with a denial of a habeas corpus petition by Abel Ortiz.

As the Puerto Rican Day parade was winding down in the late afternoon of June 11, 2000, at the Central Park South entrance to Central Park, approximately 40 men began attacking women -- tourists, rollerbladers and parade-goers. Videos tapes and the testimony of eye witnesses, portrayed the men taunting their victims, ripping their clothing and manhandling them, punching, kicking and dragging them, and touching their breasts and vaginas.

Arrests were eventually made, although according to victims and witnesses, police officers initially failed to respond to pleas for help. Ortiz was one of the men arrested. Following a jury trial at which numerous complainants and witnesses testified, he was convicted of rioting and assault, but not sexual abuse. Acting Justice Bernard J. Fried sentenced him to five years in prison.

Leaving the Scene

Ortiz has appealed at three levels, representing himself at the first two. His theory was that his conviction should be reversed on a novel and technical basis. He argued, as his trial counsel had, that he could not be guilty of riot in the first degree. Ortiz maintained that he had left the scene and so should not be responsible for the acts of others once he was gone. He claimed the state's law was unconstitutional, a denial of due process, because “it fails to provide a person of ordinary intelligence fair notice of what is prohibited.”

Videotapes showed Ortiz in the crowd, laughing, smiling, clapping and grabbing a woman and eventually saying, "Hey everybody be quiet, the bitch is over there down the road by the pole."

Based on interviews with Anne Peyton Bryant, the first of the assaulted women to reach a couple of police officers and beg for help, and probably the woman the statement referred to (Bryant later sued the police department for failure to respond and protect, and settled with the city), it is likely that the last word was not "pole," but "police." Either way the statement was not accepted as an effort to stop the rioting, assaults and sexual abuse that were taking place.

In his decision, Fried rejected the defendant’s challenge to the riot statute and conviction. He ruled that "once one joins a riot that person remains criminally liable for the conduct set in motion until he withdraws."

The jury was instructed that “the law punishes joint behavior . . . and one who joins a riot takes it as one finds it . . . Merely leaving the riot scene would not end one's criminal responsibility for someone’s actions. . . . A participant is responsible for the consequences of the group’s joint action or the conduct set in motion by the riot regardless of whether that person was actually there or present at the precise moment of the conduct. "

Moreover, "once one joins a riot that person remains criminally liable for the conduct . . . until he makes substantial effort to end the conduct.” In other words, without proof of substantial efforts to end the riot, Ortiz “was criminally liable for acts" after he left the scene. The statement made by Ortiz to the other men was not considered a serious effort to stop the rioting.

Appealing the Decision

Going as far as it could in the New York State courts as People v. Ortiz, the case of Ortiz v. N.Y.C. Parole in Bronx, reached the federal appeals court. That court appointed a lawyer for Ortiz.

Upholding three lower courts, the three-judge bench of the Court of Appeals for the 2nd Circuit did not find the original New York interpretation unreasonable and did not find that any constitutional/due process rights were violated, even though it was the first time the issue had come up in the New York State courts. They concluded that Ortiz was not deprived of fair warning that his conduct was prohibited, and they rejected his contention that the law was not clear that his conduct was criminal.

They also agreed that the language of the law did not deprive Ortiz of "fair warning that his conduct was prohibited.” Once a law is enacted, people are bound by it even though they may not actually be familiar with it. Thus, the often-heard words, "Ignorance of the law is no excuse."

The Due Process Clause, the judges just below the Supreme Court of the United States held, "requires only that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential defendant into a false sense of security, giving him no reason to suspect that his conduct might be within its scope."

Still, even while rejecting Ortiz’s claim that the state court misinterpreted the statute's plain meaning, the Circuit Court opinion may be seem as equivocal, since it quotes from an old U.S. Supreme Court case, that the riot law “ could have been drafted with greater precision. Many statutes will have some inherent vagueness, for in most English words and phrases there lurk uncertainties."

While the judges found that the state’s interpretation did not violate petitioner’s due process expectations, and his "fair notice claim lacks merit," it may have opened the door for an appeal to the U.S. Supreme Court. Other jurisdictions have reached the opposite result on similar statutes.

The Supreme Court of the U.S. accepts very few cases, and it is unlikely that this would be one of them. However, according to the New York Law Journal, Ortiz and his court-appointed attorney have not ruled out taking one final step.

Emily Jane Goodman is a New York State Supreme Court Justice

Court Ruling Settles Key Question for Tenants, Landlords

Photo (cc) Dr.DeNo
The state's highest court cleared up a dispute about rent hikes at Peter Cooper Village.

Can New York landlords terminate rent stabilization while receiving tax benefits from the city? This question, which has been on the minds of landlords and tenants throughout New York, has now been answered by the state’s highest court. And the answer is "no." Building owners cannot reap the benefits of both tax abatements and destabilizing apartment rents at the same time.

The Court of Appeals opinion in a lawsuit brought by tenants of Peter Cooper Village and Stuyvesant Town will have widespread repercussions. Tenants who may be affected are pleased with the result, while landlords predict there will be great upheaval in New York’s housing market.

Writing in the New York Law Journal attorney Warren Estis (who has represented the defendants in the past and who filed a brief in this case on behalf of the landlord-based Rent Stabilization Association of New York City) said, "The decision has sent shock waves throughout New York City’s real estate and financial communities."

A Citywide Impact

The case of Roberts v. Tishman Speyer Properties, L.P. involves approximately 4,000 apartments in the Peter Cooper Village and Stuyvesant Town complexes, which cover about 80 acres between 14th and 23rd streets along the East River, but it is binding on all landlords who have rent stabilized apartments and also receive public benefits, in the form of tax relief.

The majority of the high court judges wrote, "Building owners who received [tax] benefits forfeit their rights under the luxury decontrol provisions if their buildings were already subject to the Rent Stabilization Law."

Owners remove apartments from the protection of the Rent Stabilization Law and Code so they can raise rents to market levels.

The tenants claimed that the building owners improperly and unlawfully raised rents on thousands of apartments, bringing them to market level while the property owners received public benefits under New York City’s J-51 tax abatement program, part of the Real Property Tax Law. The plaintiffs "sought a declaration that units in the Peter Cooper Village and Stuyvesant Town properties would remain rent stabilized 'until the last applicable . . . benefits period . . . in or about 2017or 2018.'" They also sought rental overcharges of $215 million and attorney’s fees.

Metropolitan Life Insurance Co. built the affordable housing in the 1940s after World War II. The apartments had been rent stabilized since 1974, when the Rent Stabilization Law came into existence, the tax breaks came in 1982. While taking advantage of the J-51 entitlement since 1992, the owners had realized public benefits of $24.5 million.

Soon after Metropolitan Life sold Peter Cooper Village and Stuyvesant Town to Tishman Speyer Properties, L.P. in 2006 for $5.4 billion, the plaintiff tenants commenced their lawsuit. They based their challenge on the fact that, under Met Life ownership the buildings began receiving tax benefits in the form of exemptions and/or abatements designed to encourage housing rehabilitation and improvements,

Parsing the Regulations

The lower trial court originally dismissed the lawsuit. The landlords’ entitlements, the first judge found, were based largely on advisory information and interpretations issued by the state Division of Housing & Community Renewal, a finding the Court of Appeals later rejected.

The 1993 Rent Reform Regulation Act facilitated rent destabilization. The act provided for “luxury decontrol” or deregulation of higher priced apartments. This applied to vacant apartments that had most recently rented for at least $2,000 a month or occupied apartments with a monthly rental of at least $2,000 whose residents had an annual income of more than $250,000 (later reduced to $175,000).

But there was a carve-out even to the exceptions. Deregulation under the Reform Act "shall not apply to housing accommodations that become or became rent stabilized by virtue of receiving tax benefits" under J-51. In other words, under existing law and codes, rent stabilized apartments cannot be removed from regulation when the building owner benefits from city tax relief.

Landlords, however, began to de-stabilize apartments. They were relying on a State Department of Housing and Community Renewal’s interpretation of an amendment to the Reform Act, which held that "participation in the J-51 program only precluded luxury decontrol where the result of such benefits is the sole reason for the accommodation being subject to rent regulation." The state then amended this to say, "Luxury decontrol shall not apply to housing accommodations which became or become subject to the Rent Stabilization Law and this code solely by virtue of the receipt of tax benefits."

The semantic analysis and parsing of words focused on "become or became," and "solely." The housing department had distributed a fact sheet specifying that "apartments that are subject to rent regulation only because of the receipt of [J-51 benefits] do not qualify for high rent decontrol." The defendants took the state's position to mean that they could take rent-stabilized apartments to market levels despite receiving public benefits. The Court of Appeals, however, gave no "deference" to the agency’s views.

Now, while the main question has been answered and the State Court of Appeals has ruled that landlords are not entitled to de-stabilize apartments and get city tax breaks at the same time, the lower courts, which administrators say are unprepared for a new volume of cases, will be expected to resolve many remaining questions. These include whether the decision is retroactive and whether future court proceedings will be treated as a class action. In the meantime, efforts may be made to have the law changed legislatively in the unpredictable environment of Albany.

The tenants in Roberts v. Tishman Speyer were represented by Alexander Schmidt, Speyer Property by Jay B. Kasmer; and Metropolitan Life Insurance by Alan Mansfield. The court also accepted briefs from various interested organizations on both sides of the issue, including the Legal Aid Society, the Rent Stabilization Association of New York City, Office of Manhattan Borough President and the Urban Justice Center.

Emily Jane Goodman is a New York State Supreme Court Justice

Crime Falls, but Why -- and at What Cost?

"Crime is down," is a phrase New Yorkers are getting used to hearing. The notorious peaks in crime during 1970s and '80s, when the city was thought of as dangerous and neglected, gave way in the late 1990s to a steady decrease that has given New York's politicians something to crow about. Mayor Michael Bloomberg certainly hasn't been shy about taking credit for the increased perception of safety on city streets.

"Under Mike, New York City's crime rate is at its lowest level in over 40 years," trumpets Bloomberg's campaign website. "Crime is down nearly 30 percent since he took office. New York is the safest big city in the nation and, under Mike Bloomberg, it will continue to be. Crime in New York continues to decline, including by 12 percent in the first six months of this year."

It's not that anyone disputes those crime statistics -- it's that some experts are not convinced that Bloomberg and his police department should get all the credit for the success. At the same time, civil rights groups say that while the city may be getting safer, the rights of many New Yorkers are being eroded.

How Low Can It Go?

"At the end of 2001 the consensus was that crime could not go any lower," said Deputy Police Commissioner Paul Browne, "but now we are down 35 percent lower than any of the Giuliani years, and the Giuliani administration built its reputation around crime fighting."

In fact, Browne said, if current trends continue, New York is on track this year to have the lowest homicide rate since 1962, when modern record keeping began.

It's not as if conditions seem exactly right for a steady decline in crime.

Bloomberg was elected following 9/11, when the new reality of terrorist threats diverted law enforcement funding, and the economy began to crater. Now, after several good economic years, the economy suffers from an even worse recession. Even the size of the police department has declined from a high of around 40,000 to around somewhere above 30,000 officers, but for the most part, major crime has continued to decline.

Preliminary FBI crime statistics show that New York remains the safest big city in the country, with the lowest crime rate per capita of the nation's 10 largest cities. Major felony crime has continued to drop from a five-year high of 136,491 in fiscal year 2005 to a low of 110,828 in fiscal year 2009.

How Did They Do It?

Andrew Karmen, a sociology professor at John Jay College of Criminal Justice in New York, said he has no explanation for how the crime rate remains low while job losses and poverty mount. The city's unemployment rate is the highest it has been in almost two decades. "No one knows for sure, but some entities like the confusion … because they can take credit for" the drop, said Karmen.

"The mayor has a very good relationship with his police commissioner," said Browne. "That may be obvious, but we speak the same language as far as technology and how it can advance police work."

Browne said that the application of technology in crime fighting has increased under Bloomberg and helped reduce crime. He added that Bloomberg "instinctively knows the application of technology" and said that under Bloomberg the department has made data more accessible and provided real time mapping for officers.

The Real Time Crime Center collects tips from the public and information about crime in the city and combines it with computer mapping to give officers a better understanding of where crime is happening.

Karmen, however, wonders why New York doesn't do as some other cities do and make crime mapping data available to the public on its website. Karmen said there is a certain lack of "transparency" under the Bloomberg administration. According to Karmen, the police department also has stopped releasing a report that details the percentage of cases of major crime it solves each year.

A recent article in the New York Post stated that the department has about a 70 percent clearance rate for murder cases. In other words, 30 percent of all murders go unsolved. That number, as police officials point out, is above the national average of around 60 percent. But New York has historically performed better.

"They take credit for all these crimes they say they prevent," said Karmen, "but murder clearance has slipped from a high in 1998." At that time, Karmen said, the clearance rate was in the 80 percent range.

"The last report was issued in 2001," said Karmen. "Why did they stop putting it out? I know some information doesn't come out in a post-9/11 world, but why should information about basic crime be suppressed?"

Getting Rid of Guns

According to Browne, Bloomberg's crusade against illegal guns has made a major impact on crime in the city. With the help of his organization, Mayors Against Illegal Guns, the mayor has waged a full-out assault on the influx of guns into New York from out of state, and Browne said the impact can be felt on the street. "Stopping the flow of illegal guns into the city has been extremely important," said Browne.

"When there is pressure on the supply, you see the price go up. We now see a gun that you could purchase legally for around $155 and would normally sell on the street for around $230 is now selling for six to seven times that amount," he said.

Despite this, gun violence continues to be a problem in low-income areas. Experts like Karmen say that preventing gun violence in those neighborhoods cannot be achieved exclusively through police work. Instead, they say, social ills must be addressed through the education and economic opportunity to break the cycle of violence.

Civil rights watchdogs say that part of the police strategy under Bloomberg to reduce gun crime -- stop and frisk -- has not only violated the privacy of residents of poor neighborhoods but done irreparable damage to their futures.

Last year the police conducted 531,159 stop and frisks -- five times the number they conducted in 2002. And the majority (51 percent) of those people stopped were black. Thirty-two percent were Hispanic and 11 percent white.

Other large cities also use stop and frisks where people are asked for information and sometimes searched. The widespread stops began under the Giuliani administration as part of its effort to reduce crime by targeting nuisance offenses. The practice has steadily increased under Bloomberg.

"The mayor gives the police department carte blanche," said Donna Lieberman of the New York Civil Liberties Union, "and it results in the stop of hundreds of thousands of innocent New Yorkers each year."

Browne vehemently disagrees. "Nationally, stop and frisk has been a traditional crime fighting tool. There are a lot of things that are misunderstood about it," he said, adding that critics "have been race baiting to an extent. They say it is disproportionate by race, but they never say it is disproportionate by gender. Should we be stopping 50 percent women?"

Browne said the stops are "not disproportionate according to the descriptions given by victims."

The issue of stop and frisk has come up on the campaign trail this year with both Bloomberg and his challenger William Thompson describing the process as useful but in need of strong oversight.

Advocates say that stop and frisks negatively and unfairly affect minority communities. They say during stop and frisks officers will ask suspects to show anything they should not have. Then suspects who take marijuana out of their pockets so it is in public view suddenly can be charged with a misdemeanor for smoking and or displaying marijuana in public.

Karmen said that the police disproportionately stop and frisk minority suspects. "Studies show more white middle class kids smoke, but there is selective enforcement," said Karmen, adding, "Hispanics and blacks get records, preventing them from getting jobs and loans for college." The Civil Liberties Union released a target="new">report in 2008 showing what they say is a racially biased "marijuana arrest crusade."

The police trumpet the arrests as part of its plan to "get guns off the street, but they are pot-related," according to Karmen. The department, however, says the program has gotten hundreds of guns off the street, 747 handguns in 2008 alone.

Big Brother

Civil rights advocates say that the Bloomberg administration has slowly encroached on the privacy of city residents and expanded the role of the police. For example, they note that Bloomberg stationed5,000 school safety assistants and 200 uniformed police officers in city schools to combat school violence.

The city has hailed the program citing statistics that show violence in school has decreased 22 percent from 2002 to 2008. United Federation of Teachers President Randi Weingarten has celebrated the effort, telling the New York Post, "The work we've done together with the NYPD has, by and large, created safer schools. We've figured out how to defuse situations."

But the Civil Liberties Union says the city has put school discipline in the hands of the police department. There have been reports of children under the age 16 being arrested, handcuffed and dragged out of the classroom because of non-violent behavior. Lieberman said that the arrests "stigmatize and humiliate" children.

Circling the Cameras

Beyond schools, the police have become involved in the lives of ordinary New Yorkers through the creation of the "Ring of Steel" or the Lower Manhattan Security Initiative as it is officially known. The initiative, launched in 2007, is a surveillance system made up of cameras designed to track vehicles, register license plates and keep tabs on suspicious behavior. The system is modeled after one used in London that lead to quick arrests following the subway bombings there.

This year, Bloomberg announced plans to expand the program to midtown from 30th to 60th streets, angering civil liberties activists.

"This is a massive infusion of surveillance program directed at us on the streets of Manhattan, and there are no privacy protections in place against abuse," said Lieberman. The Civil Liberties Union wants firm details about how much data will be collected on innocent people, how the city and federal governments plan to use the information collected, how long they can keep it, and how much federal money is being devoted to the project. The Civil Liberties Union has demanded that the City Council establish a review process to make the project more public.

"The City Council ought to be having hearings and the mayor ought to hear New Yorkers about it," said Lieberman. "New Yorkers are too sophisticated to just say yes."

"We cannot afford to be complacent," Bloomberg said announcing the expansion earlier this month. To reinforce that argument, Bloomberg and the police say that law enforcement has thwarted numerous terrorist plots against the city and note that the city has not been attacked since 9/11.

Police Commissioner Ray Kelly has said that surveillance systems are popular with the public. "Virtually every time it's polled, the public, over 80 percent approval rating on the part of the public for cameras in public places," said Kelly.

But Lieberman said police under Bloomberg have used the fight against terrorism to win support for questionable practices.

"Invoking the terrorist threat gives politicians a lot of leeway with the American people," she said, adding "We need more sunlight on the program itself. It seems like they are creating bigger haystacks to find needles."

New Law Protects Assets During Divorce

The mere mention or even the thought of divorce often sets off a race to the bank with each spouse trying to get hold of assets ahead of the other -- and before either one appears before a judge.

But effective this month, as soon as an action for divorce is commenced, the parties cannot take any steps to change their financial situation. Under a bill passed by the state legislature this year, the minute a husband or wife sues for divorce by filing a summons in New York State Supreme Court, he or she is barred from altering the economic status quo of the marriage. As soon as the other spouse receives that summons and a form order, it is too late for him or her to move money or other property to shield it from claims by the plaintiff.

Until the recent enactment of the new statute and implementing court rule, the less wealthy spouse, usually the wife, had to seek an injunction from a state Supreme Court justice, to bar the richer partner from removal, sale or other disposition of assets. This meant she had to seek a court order, incurring legal fees and losing time, before getting any financial protection. During that time, stocks, bonds and cash could vanish.

By maintaining the status quo until the divorce case is actually heard by a judge, and evidence of entitlement and equity can be presented, the new statute avoids costly motions at the beginning of the case. The race to the courthouse, like the race to the bank, may no longer be an emergency.

The change does not affect applications for spousal support, child support or eventual equitable distribution of marital property; it simply means that there is an automatic stay to prevent hiding or liquidation of assets.

The Letters of the Law

As the state Judicial Committee on Women in the Courts explains it, "Both parties are prohibited from selling property, mortgaging real estate, depleting bank accounts, invading pension funds, running up credit card debt, or removing a spouse or child from life insurance and medical plans."

The Administrative Order of the Chief Administrative Judge of the Courts, which implemented the change in the law, spelled it out: "Neither party shall sell, transfer, encumber, conceal, assign, remove or in any dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action."

The statute covers retirement accounts, pension accounts, annuities and insurance. However, there is an exception: All of this can be overridden with the consent of the other party in writing, or by order of the court.

Saving Time and Money

Jacqueline W. Silbermann, former administrative judge for matrimonial matters in New York State, had been attempting to implement this change since 1997 when she observed it working in Connecticut. Since approximately 2000, courts in the Buffalo area have adopted a similar rule, but statewide acceptance required legislative action. That did not happen until now.

"The change puts the burden on the person who wants to change the status quo, rather than the one seeking to keep things in place, the one saying 'let's not move bank accounts, insurance or anything yet,'" said Silbermann "This requires nothing," she adds, "because if you want to change things, you can go to court, and if necessary a judge can decide." Not only is the new way more efficient, she emphasized, but it will eliminate the danger of one angry spouse removing the other from insurance, for example.

For judges it will be a relief to have litigants' assets preserved without court intervention and court orders, especially since most matrimonial judges in New York City have hundreds of cases on their calendars. Ultimately the judges still will order the division of property, but it need not be at the start of the case.

Husbands and wives who might some day divorce are not yet aware of the new law on assets and probably don't realize that the change in court procedures could save them money on legal fees. This could please the less affluent spouse in particular.

At the same time, "monied" spouses, if they are the defendants, may be surprised when they learn that not only are they getting divorced but also that they won't be able to move or liquidate their accounts until later in the proceedings. Documentary proof will establish any withdrawals or transfers made after the date of the serving of a summons. Of course, the new law and rule offer the non-monied spouse, the one who may be seeking equitable distribution, a degree of security from knowing that marital funds cannot be depleted while the couple awaits a divorce settlement.

Lawyers may be glad that their clients have some certainty and that they don't have to rush into litigation in Supreme Court (not Family Court) to obtain an injunction. In the past, that required the person seeking it to establish that there was the risk that marital assets would be disposed of or minimized to the detriment of the party seeking equitable distribution.

Bringing such motions has been costly, particularly with legal fees averaging $250 to $800 an hour. But lawyers have not publicly objected to the loss of legal fees they would otherwise bill for.

Still, most divorces do not come by surprise. It may well be that individuals who expect to divorce have already consulted lawyers and accountants and have moved money or run up credit card bills in advance of the critical date. There is probably no way to keep all the acrimony over finances out of divorce.

Emily Jane Goodman is a New York State Supreme Court Justice

State Now Protects Jobs of Domestic Violence Victims

Photo (cc) idoloony

Refusing to hire, discharging or in any other way discriminating against a victim of domestic violence in the workplace now violates New York State law. Being a victim of domestic violence or being perceived as a victim of domestic violence has joined age, race, creed, color, national original, sexual orientation, military status, disability, genetic characteristics and marital status as a protected classification, Gov. David Paterson proclaimed upon signing the law.

The purpose of the new law, which Paterson signed in July making it effective immediately, is to help protect domestic violence victims in hiring and employment practices. According to the governor, this will help give people "the ability to deal with the circumstances of their lives, and to achieve financial independence from their abuser and participate more fully in the economy."

The victim and perpetrator may be married, living together or dating; they may be in a traditional or non-tradition family; they may be gay or straight.

However, the law, an amendment to Executive Law Section 292, applies to employment only -- not, for example, housing or education.

Cutting Financial Ties

Advocates say that many women remain in abusive relationships because they lack financial independence for themselves and their children. Becoming financially independent -- and able to leave the abuser -- often requires that the victim find and keep a job.

Being in an abusive relationship, they say, can make employment difficult. For example, a victim of domestic violence may need time away from work to confer with an attorney or domestic violence counselor, appear in court, seek medical attention, arrange for alternative housing or recuperate from injuries. Embarrassment or fear of losing the job may make the victim reluctant to inform her employer of the circumstances of her life. A victim may need time off or flexible hours as a protective measure. Employers may fear that a violent spouse or partner may show up at the workplace and cause disruption, fear and interfere with business.

By banning discrimination on the job against victims of domestic violence, this measure intends to help ensure the economic viability, as well as the physical safety, of victims.

"Assisting victims of domestic violence in keeping and maintaining employment provides a crucial pathway out of abusive situations. Protecting such victims against invidious discrimination in the workplace is an important step toward that goal," Paterson said.

The New York City Council had already amended the Administrative Code section 8-107.1 to make it unlawful for an employer in the city "to refuse to hire [or to] discharge from employment or discriminate against an individual in compensation or other employment practices because of such individual's actual or perceived status as victims of domestic violence." However, the city law does not apply to state agencies or to a city resident working or seeking work elsewhere in the state.

What the Law Will Address

There are few reported cases of victims of domestic violence losing their jobs for reason linked to their abuse. This could be because of confidentiality clauses in settlement agreements, because both the city and state statues are unfamiliar to the public, and of course, because of fear. Spokespeople and lawyers for major domestic violence organizations agreed, however, that the problem of discrimination exists.

They cited one example, wrapped in layers of confidentiality, that took place at a 2006 raucous Manhattan Christmas party given by a major corporation, a leader in its industry. A high-level employee quarreled with her boyfriend who soon left. She then told a staff member that the boyfriend sometimes was violent at home, although nothing of the kind had taken place at the party, which was held in a public place.

By the next work day, gossip and gross exaggerations had spread, and the woman was suspended and then fired. Prior to commencing a lawsuit under city law for unlawful termination as a victim of domestic violence, the woman and her lawyer worked out a settlement with the company. As part of an out-of-court settlement, the company agreed not to interfere with her future career, and she agreed to confidentiality as to the terms.

In Reynolds v NYC Department of Corrections, the city terminated a probationary worker after investigators went to her address to verify that she was out sick. She was not found at the address because she and her children were living in a homeless shelter due to domestic violence. In a 2004 decision, Justice Louis York concluded that she had been discriminated against under city law because of her status as a victim of violence in the home and was entitled to reinstatement and back pay.

Barbara Kryszko, director of Sanctuary for Families Brooklyn Family Justice Center Legal Project, represents domestic violence victims in their Family Court cases and sees the connection between her clients' home and work situations. She described one client who lost her job due to her partner's incessant calls to her office, harassing her and other employees. While she was given another reason for her dismissal, coworkers told her she was let go because of her partner's conduct.


Despite that, Kryszko said, the company may be able to document that she was unable to sperform her duties. "In all discrimination cases, the problem is proving that the firing was in fact illegal discrimination, rather than some other pretextual reason provided by the employer," Kryszko said. "You must consider how much of an accomodation an employer can reasonably be expected to to make. " Kryszko said that, despite protective legislation, proving discrimination "is an uphill battle for the victim."

Becoming Part of the Solution

Prior to her election in 2000, State Assemblymember Amy Paulin of Westchester, the bill's primary sponsor, was executive director of My Sisters' Place, a Westchester center for battered women. In her work, she found that the typical abuse victim might not be able to get or hold a job or become economically independent or free of her batterer. This may cause her to return to the violent situation she was trying to escape.

The problem of domestic violence, Paulin said, is "so serious, so prevalent, that we need to engage everyone or we are never going to solve it. Employers are such a significant part of our community that this is taking one small step toward eradicating it." Although the situation is "challenging for employers," Paulin said the business community took no position for or against the legislation.

She sees the legislation, which she had introduced three times before it was enacted, as sending "a message that employers should be more sensitive to victims of domestic violence and work with them and help them get out of a bad situation."

"Because a victim is unable to leave her abuser," Paulin said, "doesn't mean she won't have the strength to do other things to protect herself," if there are empowering tools available.

Emily Jane Goodman is a New York State Supreme Court Justice

Print Friendly and PDF

Editor's Choice

Gotham Gazette: Fixing City's 'Non-Functioning' Board of Elections Relies on State Fixing City's 'Non-Functioning' Board of Elections Relies on State Gotham Gazette: De Blasio Continues Deliberative Approach to Appointments De Blasio Continues Deliberative Approach to Appointments Gotham Gazette: Despite Expectations, Design-Build for New York City Not Approved in Albany Despite Expectations, Design-Build for New York City Not Approved in Albany Gotham Gazette: De Blasio and The Complications of Vetting Campaign Donors De Blasio and The Complications of Vetting Campaign Donors


The comments section is provided as a free service to our readers. Gotham Gazette's editors reserve the right to delete any comments. Some reasons why comments might get deleted: inappropriate or offensive content, off-topic remarks or spam.