Gotham Gazette

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Criminal Justice

No-Fault Divorce Creates Strange Bedfellows

no-fault divorce

There is no denying that divorce in New York can be an ugly process. Yes, even uglier than in most states. When North Dakota in 1985 adopted a no-fault divorce law, it left New York as the only state in the country not to have a process by which two people can legally end their marriage without any accusations of wrongdoing or evidence hearings.

In New York, to get a divorce, one member of the couple must prove wrongdoing by the spouse or the couple must sign a separation agreement and live separately for a year before a judge makes it official. Now, Sen. Ruth Hassell-Thompson and Assemblymember Jonathan Bing have introduced legislation that would bring New York up to speed with the rest of the country as far as divorce law goes. The Hassell-Thompson bill was voted out of the Senate Judiciary Committee on Tuesday, and Bing says his legislation has major bipartisan support in the Assembly.

But there are those who still feel the legislation will hurt women, and others who say divorce should not be made any easier. The legislation faces fervent opposition from two organizations -- an odd couple of sorts -- the Catholic Conference of New York and the National Organization for Women-NYS. Both oppose the measure, but for very different reasons.

Finding Fault

Proponents of no-fault divorce say that forcing couples to accuse each other of wrongdoing, abuse, infidelity, neglect, can make a difficult process even worse -- not only for the couple but for the children involved and also can lead to tremendous legal costs. "No one cares about no-fault divorce until their marriage is falling apart and they find out, "Oh, my god, there is no no-fault option," said Sen. Liz Krueger, who supports the Hassell-Thompson legislation, "Couples find out they have to allege something that may not really be true."

Bing said the legislation will decrease domestic violence by helping the abused partner get out of a bad marriage quickly. "I think for years there was concern that women in a lesser financial situation than their spouse would be in a bad position," said Bing, "But we've seen it work in other states, and it has reduced rates of domestic violence and the cost of divorce, because people aren't spending years in litigation."

The National Organization for Women, though, fears the bill, if passed, would put women at a disadvantage.

"We all know that divorce often plummets women into poverty. And when women live in poverty, their children are affected too. All we are asking is that the ... legislature take steps to protect the lives of women and children in divorce situations," Marcia Pappas, president of National Organization for Woman-NYS said in a March speech.

While not opposing no fault divorce, Pappas told the Legislative Gazette Hassell-Thompson bill includes a loophole that could be damaging to women. She said there is a "huge loophole in the bill for the monied spouse to trump up the reason to get a divorce without having to settle all of the issues. What it does is it leaves the lesser monied spouse in a situation where then they have to go into court and try and fight all of these issues one at a time. It leaves the lesser moneyed spouse at a disadvantage in terms of negotiating."

Basically Pappas is concerned the wording of the bill could allow the wealthier spouse to tie up their spouse in court and might give them an advantage in negotiating for custody and spousal support.

Supporters of the legislation say they feel that the new law combined with the current system will protect the rights of women. "As far being practicing attorneys, we know the relevant legal factors. And we feel their objections are not completely founded. We don't think it will hurt women or prevent them from succeeding in negotiations," said Cynthia Shrock, president of the Women's Bar Association of the State of New York.

Shrock said that some opponents of the legislation say removing "grounds" from divorce proceedings could hurt the "non-monied" spouse in divorce hearings, because they won't be able to present abuse or other conditions that could influence custody or monetary arraignments. But Shrock said that is not so. She said the courts will still be able to consider claims of abuse when considering custody and monetary awards for child and spousal support.

Divorce Prevention

The Catholic Conference of New York opposes no-fault divorce in general, contending that it makes it too easy to end a marriage.

"The fact that there is a low divorce rate in New York is not a bad thing," said Dennis Proust, spokesman for the Catholic Conference of New York. New York has traditionally had an annual divorce rate around 3 percent, according to the National Center for Health Statistics. States like California and Nevada have about a 6 percent rate.

"Marriage is supposed to be for life. It is not a cell phone contract or a car lease," said Proust. "People who are in abusive relationships have a quick way to get out and people who want to get divorced otherwise have to wait a little while, and that is not necessarily a bad thing."

Kyle McCauley Belokopitsky, director of government relations for the New York State Catholic Conference, argued before the Senate Judiciary Committee on May 6 that the proposed law would allow a divorce to happen if one member of the relationship wanted a divorce and the other didn't, "for any reason or for no reason at all."

"No-fault divorce laws in other states and countries, including Canada and England, have resulted in measurable increases in the divorce rate," he testified. "Yet, according to the social sciences, marital dissolution brings with it significant negative impacts on children, adults, families, and society as a whole."

Under the current law, divorces in New York can be granted on six grounds, such as cruel treatment, abuse or abandonment. If none of these grounds exist, a divorce can be granted if a couple lives separated for a year and a separation agreement has been reached. However, if one party fails to take court action after that year the divorce does not happen.

Easing the Pain

The Women's Bar Association of the State of New York has shifted its position on no fault divorce over the years, according to Shrock. While the organization once was afraid it would hurt women, it now believes no-fault will make divorce less hurtful for all parties involved. "I represent the child, and the longer the matrimonial action lasts the harder it is on the child. The claims made in court can be against the wife or the husband but all sides end up suffering."

Shrock said that a woman in an abusive situation who does not have much money would not benefit from the one-year separation, or "cooling off period" as some refer to it, because she would not have the means to support herself and her children away from her spouse. Meanwhile, a divorce based on the grounds of abuse would also be too costly, leaving her in the abusive relationship. She says the law will make it easier and more affordable for women to get out of abusive marriages.

A 2004 study by the Stanford Business School looked at how no-fault laws have affected rates of domestic violence and divorce in states that adopt the law. According to the study, divorce rates go up sharply after the law is passed but level out to pre-law rates in about a decade. On the other hand, domestic violence dropped sharply in states that accepted no-fault divorce as did suicide rates.

Two other bills are under consideration as part of a package of divorce reform including the no-fault provision in both the Senate and the Assembly. The first, sponsored by Sen. John Sampson and Assemblymember Helene Weinstein, would have judges decide whether one spouse should pay the other spouse's legal fees before a final judgment is made during a divorce case.

The second piece, sponsored by Hassell-Thompson and Assemblymember Amy Paulin, would create a formula for determining the amount and duration of spousal support payments. Similar legislation exists for child support payments.

Prospects for Change

So is New York likely to become the 50th state in the nation to have no-fault divorce this year? "The chances are better now than they were before," said Proust, "but it’s not a slam dunk if it gets to the floor. I think the fact that two such diverse groups as the Catholic Conference and National Organization for Women oppose this sends a message."

Proust and others who oppose the legislation think there is a good chance it could fail in the Senate. At least one Democrat -- Sen. Ruben Diaz -- opposes the measure, and it seems unlikely Democrats will be able to marshal all the votes they need from within their party. Opponents of the legislation say they expect a number of legislators probably won't voice their opinion on the matter until it comes time to vote. Eight Republican senators voted against moving the bill out of the judiciary committee. Those senators were John DeFrancisco, Kenneth LaValle, George Maziarz, Michael Nozzolio, Michael Ranzenhofer, Steve Saland, Dale Volker and George Winner. Other Republicans voted for the bill.

Bing said he hopes to translate bipartisan support for his bill in the Assembly into Republican support in the senate. "It may be hard to get through the senate with such a tight majority, but my hope is that the Republican Assembly members signed onto my bill will lobby their senators to support it so it won’t be held up if all Democrats aren't on board. I am hopeful it will pass this year."

Sen. Neil Breslin, a lawyer who is on the judiciary committee, said that he expects bipartisan support in the Senate. He said he was personally proud to move the bill because of things he has seen during his law career. "Just having witnessed, as a lawyer, the process of divorce…it is horrific. So this is very important and I think people realize that," he said.

Krueger said New York has been last on a number of child and family issues. It was, she said one of the last states to pass legislation that would allow unmarried couples with children, same sex couples or the elderly to file for restraining orders based on domestic violence. Krueger blames this on the decades-long Republican control of the Senate but she hopes Republicans now understand the issue of divorce: "I'm sure Republicans have heard from their constituents and their horror stories, they might have even experienced it themselves."

Cuts Burn Fire Department

new york city, fire department, engine, company, closure
Photo (cc) 2010 jamie_hladky

A proposal to slash 20 fire companies from the Fire Department's ranks does more than irk firefighters.

It burns them.

A crowd of elected officials and firefighters gathered in front of a Long Island City firehouse Friday to slam the Bloomberg administration's proposal to strip the department of 400 firefighters.

One of those firefighters was Bob -- a 23-year veteran of the department who did not want to use his last name for fear of repercussion. Bob has fought blazes with the rest of Queens' Hook and Ladder 116 for nine years. Cutting almost 7 percent of the city's fire companies now, Bob said, would be "crazy."

"It's more dangerous for the community and me," Bob said of the potential closures, which he contends will add catastrophic seconds to the department's record-low response time. "Another 30 seconds, a minute, forget about it."

Overall, the Bloomberg administration is proposing to cut $27 million from the Fire Department in fiscal year 2011 -- equal to about a 1.7 percent cut in controllable city funds. To close a budget gap, the administration has proposed to reduce the number of firefighters per engine, get rid of the so-called outdated street fire alarm boxes and, most controversially, close 20 fire companies.

But firefighters, city and state politicians as well as labor leaders are ready to bring the heat on the administration. They say the city cannot afford to lose any firefighters, especially in light of this month's bomb scare in Times Square. If the mayor cares about public safety and is willing to abandon cuts in police officers, they say, firefighters should be held harmless too.

"We're like the Marine Corps for the city," said Fred Sutton, a retired firefighter from Ladder 116 on Friday. "Cops are like the army."

Slashing Engines

The administration counters: There have to be cuts somewhere.

"'We've been forced into a position that we have to make choices that no one wants to make and they're very unpopular," said mayoral Spokesperson Marc LaVorgna of the fire company cuts. If the administration didn't make these decisions, then the city's fiscal situation could end up like Albany's, LaVorgna added.

The administration's proposal would aim not to close firehouses, which typically hold more than one fire company, such as a ladder and an engine company.

Critics of the cuts say the administration should look elsewhere to trim the fiscal fat. Comptroller John Liu argues the fire company closures are small compared to the entire city budget -- in fiscal year 2011 the closures would save about $5.6 million. The city could cut back on unnecessary contracts to save the engines and ladders, he said.

Others attribute the administration's proposals to fear mongering.

"This is the administration trying to scare the crap out of New Yorkers," said Assemblymember Michael Gianaris at Friday's rally in Queens.

The administration has not said what companies could close, and it does not have to until 45 days before the budget deadline of June 30, according to a mayoral spokesperson.

When asked how the department would select fire companies to close, a Fire Department spokesperson e-mailed: "The criteria would be, as always, to allocate our available resources as best we can to protect the citizens of New York City."

In anticipation of the cuts, labor officials are looking to the mayor's proposal from last year, which would have cut 16 fire companies (it was reversed by the City Council). Many think those same companies, which included a company on the South Shore of Staten Island, one on City Island in the Bronx and another in Bushwick, Brooklyn (to name just a few), will end up on the chopping block again.

The loss of 400 of the city's 11,000 firefighters under the proposal would be done through attrition, according to mayor's budget proposal.

The last time fire companies were closed was in 2003. Six engines were shuttered, including one at the firehouse in Long Island City.

Other Alternatives

Outside ladder 116 on Friday, several council members said they wouldn't take closures as the answer.

"The mayor found $100 million to secure our security services," said Councilmember Elizabeth Crowley, the chair of the council's Committee on Fire and Criminal Justice, referring to the mayor's promise to save cops from budget cuts. "Well, the Fire Department is our security services."

Photo (cc) 2010 Courtney Gross

For now, fire, state and council officials aren't looking to compromise, and they are using the recent scare in Times Square to bulk up their argument.

"We are prepared and trained to do the unimaginable, respond to a biological, chemical, nuclear or radiological attack. We can't do that from a closed firehouse," said Steve Cassidy, the president of the Uniformed Firefighters Association. "Last Saturday was the reminder that New York City remains the number one target for terrorists. I am not sure the mayor got the message."

In terms of need, fire officials say the city now has fewer fires than in years past. In 2009, the department responded to 43,677 fires compared to 51,563 in 2002. But, labor officials argue, the department has taken on other responsibilities, like building inspections resulting from the fire at the Deutsche Bank building in 2007. In 2002, the department responded to 374,949 non-fire incidents. In 2009, they went to 429,541 incidents -- an increase of 14.6 percent.

All of that takes manpower, said labor leaders, and the city can't lose any of it.

When asked whether fire unions would consider contributing to health care costs or other benefits to save fire companies, union officials scoffed.

"Fire protection should not be paid for by firefighters," said Capt. Al Hagan, the president of the Uniformed Fire Officers Association. "We feel that fire protection should be paid for by the people, and we think the people have no objection to paying for fire protection."

Council, Courts End the 'Tenant Blacklist'

landlord blacklists, new york city, housing
Photo 2010 Oates Ritthichai

The term "blacklisting," usually associated with 1950's McCarthyism, has taken on a new meaning. The blacklisted in 21st century New York have been people applying for apartments whom property owners deem undesirable as tenants. In an effort to limit this practice, the New York City Council in March, building on previous court cases, enacted the Tenant Fair Chance Act.

While credit checks are well known, most New Yorkers do not realize that some companies buy landlord-tenant filings, harvest court histories and sell them to landlords. The endgame is for landlords to learn whether the apartment-seeker had an in-court dispute with a prior landlord.

Tenant screening agencies, as the companies are known, may supply information about credit, character, reputation and personal characteristics, but the new law's emphasis is on "history of contact with any court... [and reports] used for the purpose of serving as a factor in establishing a consumer's suitability for housing."

The Legal Background

In the case of White v. First American Registry a class-action was brought in federal court in Manhattan against the nation's largest tenant screening agency. In his ruling, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York noted that landlords are all too willing to use such "consumer reports" as a blacklist, "refusing to rent to anyone whose name appears on it regardless of whether the existence of a litigation history in fact evidences characteristics that would make one an undesirable tenant."

The judge went on to say the practice of seizing upon the availability of Housing Court filings helps "to create and market a product that can be, and probably is, used to victimize blameless individuals. Tenants and lawyers in that case won more than $2.9 million.

While everyone agrees landlords have a right to know who will be living in their buildings, and that they should do some checking, Kaplan agreed with tenants that the records obtained and sold by screening agencies are unreliable. As Supreme Court Judge Barbara Kapnick wrote in the later case of Dawn Weisent v. Subaqua, "regardless of whether or not a tenant prevails in the Housing Court, his or her name may appear on the 'blacklist.'"

Limited Information

The Housing Court records that are bought and sold show merely that a proceeding was commenced, not what ultimately happened in the case, making the information incomplete or even inaccurate. The records the screening agencies receive from the court show a proceeding was brought -- for example, Landlord v. Tenant -- but give no other information. Because of the limited facts, the case might not even involve the tenant in question, but someone else with the same name, giving a false impression of a potential tenant’s history with a landlord.

The records also do not reveal, for example, that a tenant might have previously withheld rent due to dangerous housing conditions. Instead, they simply show that the tenant was a defendant in a lawsuit. The records also will not reflect that a Housing Court judge might have dismissed the landlord-tenant proceeding, finding that it was baseless, or deciding after trial in favor of the tenant. In other words, the mere fact that there was a proceeding in an apartment related dispute brought to court could be used against a person trying to rent an apartment -- even if it is the wrong person.

The Council's 'Fair Chance'

The Tenant Fair Chance Act, which was introduced by Manhattan City Councilmember Daniel Garodnick and co-sponsored by 17 other members, goes into effect this summer. It intends to let potential tenants know if screening agencies are being used and what they have reported about them, especially if adverse information has led to denial of an apartment.

In introducing the bill, Garodnick said, "Tenant screening reports are one of the most powerful tools working against renters today, and yet they are almost completely unregulated."

Under the new law, the tenant who is spurned is entitled to a copy of the report and the opportunity to make any corrections. The law states, "Every tenant or prospective tenant may dispute inaccurate or incorrect information contained in a tenant screening report directly with the consumer reporting agency."

A violation of the Tenant Fair Chance Act law “shall be subject to a civil penalty of not less than $250 nor more than $700 for each violation.” Other penalties, including criminal prosecution, also are available.

Emily Jane Goodman is a New York State Supreme Court Justice

Police Need New Approach to Deal with the Mentaly Ill

crisis intervention team

In 2008, New York City police arrived at the Bedford Stuyvesant home of Iman Morales, a 35-year old man with a psychiatric diagnosis. Distraught and naked, Morales had climbed out the apartment window and onto a storefront ledge. The encounter ended when one of the officers aimed his Taser at Morales, who then plummeted onto the concrete 10 feet below and suffered a fatal head injury.

The officers on the scene were, like all New York Police Department officers, armed with guns, but no proper training or tactics to diffuse a situation with a person with mental illness. Later that week, the police lieutenant who gave the order took his own life.

In response to Morales’ death, Police Commissioner Raymond Kelly responded by saying the NYPD would increase training for police officers -- but the change was purely in the quantity of instruction, not the quality. Kelly said the additional training would be "in essence, going over the training they've received."

An Inadequate Response

Going over the basics is not enough. There continue to be a shocking number of incidents where the New York City police have encountered a person in a state of psychiatric crisis, and rather than de-escalating the situation, their untrained reactions and poor decisions have left the person injured or even dead.

The police department's current policing practices are at best inadequate, and at worst ineffective. A refresher course on an insufficient model does not change direction and certainly has not prevented people with mental illness from being criminalized or killed. A true shift in policy is needed, with the police spending more time with people with mental illness so that they can be treated with the dignity and respect that they deserve.

Sadly, that has not happened, and the Morales encounter remains not far from the norm. Two years after his death, the New York's policing model still includes no distinct response system for its officers to safely interact with people with psychiatric disabilities when they are in a state of crisis.

Olga Negron, Morales' mother, still lives with the loss of her son. She says that she misses him "so much -- my heart hurts everyday." She knows that her son’s death was avoidable -- if the police department only knew how to protect both New York's psychiatrically disabled and the many police officers who interact when them on a daily basis.

What Other Cities Do

Luckily there is a solution -- for Negron, and for the New Yorkers with psychiatric disabilities. Eighty cities and counties around the country have taken on new policing models to make interactions between police and people with mental illness safer for all involved and reduce arrests. Crisis Intervention Teams connect residents to social services early in cities large and small around the country -- including Los Angeles, Chicago, and Houston -- and keeping people who need treatment out of jail and prison.

Rather than killing or injuring people with mental illness, Crisis Intervention Teams offer an opportunity to help provide treatment and a therapeutic environment to individuals in need of support. While New York's prison population is decreasing, the percentage of prisoners with mental illness has risen. The Crisis Intervention Teams provide a humane solution to the unjust punishment of people with mental illness.

Crisis Intervention Teams require police officers and 911 dispatchers to receive 40 hours of training that teaches them to recognize signs of mental illness so they can identify symptoms in individuals. The programs also cover de-escalation techniques, so that police and dispatchers can refocus on diverting individuals into treatment.

In some places, only Crisis Intervention Team police officers respond to crisis situations, but in others, like the model in Westchester County, a social worker or peer specialist works out of the precinct and co-responds with police officers. The team model works with self- selected staff, so the experienced workers have a deep and skilled understanding and sensitivity to mental illness from the get go.

In addition to training, Crisis Intervention Teams forge stronger relationships between local precincts and community hospitals and mental health centers. The process of admitting someone to a treatment facility is streamlined so that the police don't wait long hours in an emergency room and so that people who are in need of treatment get it immediately.

Who Not Here?

On Feb. 24, experts from Westchester' Crisis Intervention Teams came to New York City to share the success of their model and its ability to increase the safety of the community, police officers and people in crisis, and aid recovery for people with mental illness.

Unfortunately though, the New York City Police Department continued its pattern of refusing to hear proposed solutions or to adopt these new models despite their proven effectiveness in deescalating crises. Department representatives did not show up for the roundtable, organized by Rights for Imprisoned People with Psychiatric Disabilities, or RIPPD, a grassroots organization of formerly incarcerated people with psychiatric disabilities, advocates and family members.

Recently, community residents and members of Rights for Imprisoned People with Psychiatric Disabilities gathered outside the 79th police precinct, where Morales died, and demanded: How can the New York Police Department not implement this program?

Too much is at stake. The list of New Yorkers with mental illness harmed by police unprepared to help them is too long, and includes Earl Black, Rodney Mason, Alan Zelencic, Stephanie Lindboe, Khiel Coppin, Gilberto Blanco, and David Kostovski.

The New York Police Department must do the right thing for New Yorkers with mental illness, their family and friends -- and their own officers. Until the police modernize their tactics, every encounter with a person in psychiatric crisis will continue to be a chance for avoidable tragedy.

Alexandra Smith is a criminal justice advocate at the Urban Justice Center’s Mental Health Project and a member of Rights for Imprisoned People with Psychiatric Disabilities. For more information visit Rights for Imprisoned People with Disabilities.

Suits Would Burden Foster Parents, Court Rules

foster children, foster care

Jacob Harris was born in 2004, with traces of cocaine, opiates, marijuana and methadone in his body Dutchess County child welfare officials placed him with a foster mother, Diane Sherwood, while his birth mother, a drug addict, went into treatment.

When the mother, Taylor Harris, left treatment after six months and regained custody of Jacob, she brought a lawsuit against Sherwood and the Dutchess County Department of Social Services and the county's commissioner of social services for an injury the baby had sustained in Sherwood’s home. She alleged that her child was injured as a result of negligent care and supervision and failure to provide a safe environment.

Jacob's Climb -- and Fall

At 16 months, Jacob had been napping but, when he awoke, climbed out of his port-a-crib and onto a dresser of about the same height. He fell, fracturing a femur.

Sherwood had two of her own children in the household, and had cared for foster children for five to six years before Jacob joined her family. She kept Jacob's portable crib in her bedroom because of his special health problems including pneumonia for which he needed a nebulizer at night.

The Department of Social Services had inspected the portable crib and the living arrangements before the accident and did not voice any concerns. Jacob had never climbed out of his crib before, and the accident occurred suddenly and without warning. It could not have been foreseen or prevented by any reasonable degree of supervision, argued Sherwood’s lawyer, Daniel E. O'Neill of the firm of Boeggeman, George & Corde, P.C., in White Plains.

O'Neill said that his client's decision to place the baby in his crib for a midday nap and then go to the kitchen to make lunch for her other children, was a "typical judgment and decision made by every parent of an infant on a daily basis."

But the biological mother claimed that Sherwood failed to have "audio alarms and monitors, video monitors, warning devices, crib and playpen safety constraints" that would have somehow prevented Jacob from climbing out of his crib or immediately alerted someone if he did.

Parental Responsibilities

Birth parents and foster parents are equally responsible for children in their care since foster parents step into the shoes of biological parents when the birth parents cannot care for their children. This case represented the first time the question of whether foster parents can be sued for neglect supervision had arisen. Courts had already held that biological parents could not be, and a child would have no legal claim for damages against his or her parent for negligent supervision.

Was Sherwood’s conduct negligent? Could closer parental supervision have prevented the accident? Was Sherwood's conduct the cause of the accident? Was it foreseeable?

The argument was that she was not negligent, but even if she had been, the suit could not succeed. The child protective agencies had concluded that there was no negligence. The only question the court addressed was not whether she was negligent, but whether she could be sued.

The New York State Court of Appeals had previously held that if courts allowed lawsuits by parents, virtually all parents could be sued.

"We can conceive of few, if any, accidental injuries to children, which could not have been prevented, or substantially mitigated, by keener parental guidance, broader insight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction," the state's highest court had said.

Foster Parent as Parent

The relationship between Diane Sherwood and Jacob Harris was, with respect to the issues present in this particular case, identical to the unique relationship between a non-foster parent and child. Judgments made by a natural or foster parent are made for the same reason -- to promote the child’s physical, emotional and intellectual development.

In this case, McCabe v Dutchess County, Judge Plummer Lott, writing for the Supreme Court Appellate Division, Second Department, which hears appeals from Richmond (Staten Island), Kings (Brooklyn), Nassau, Queens, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam County, recently quoted the higher appellate opinion saying, "If within the wide scope of daily experiences common to the upbringing of a child, a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk -- for each injury caused by inattention, unwise choice or even selfishness – a new and heavy burden will be added to parenthood."

Lott concluded in February, "We decline to impose such a heavy burden on foster parents, who agree to care for children who often come from difficult backgrounds and to whom they do not have any natural affinity. To impose such a burden would serve to discourage otherwise qualified and able foster parents from taking on this responsibility, notwithstanding the compensation they receive for so doing."

According to O'Neill, attorney for the foster mother, Taylor Harris has now permanently given up custody of her son. Social Services is prohibited from disclosing whether Jacob, now six, is in foster care again (he is not with Sherwood), in some other type of facility or possibly adopted.

Emily Jane Goodman is a New York State Supreme Court Justice

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

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