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ECBA Attorneys Finalists for 2017 Trial Lawyer of the Year Award

Public Justice has announced that the attorneys for Sykes v. Mel S. Harris & Associates, LLC are finalists for the organization’s 2017 Trial Lawyer of the Year Award.  ECBA co-counseled with MFY Legal Services and the New Economy Project to bring a federal class action challenging a fraudulent debt collection scheme.

Under the settlement negotiated by the legal team after six years of hard-fought litigation, the defendants paid nearly $60 million to class members.  They also agreed to exit the debt collection business and to extinguish all outstanding consumer debt that was part of the scheme, which had a total face value of over $1 billion. In a cutting edge component of the settlement, the defendants also agreed to cooperate with a supplementary state court proceeding to vacate the default judgments en masse and, as a result, nearly 200,000 fraudulently-obtained default judgments have been vacated. More on the case and the settlement is available here.

ECBA attorneys working on this case include Matthew Brinckerhoff, Debra Greenberger, Elizabeth Saylor, Jonathan Abady and Jessica Clarke.

More information on Public Justice’s Trial Lawyer of the Year Award can be found here.

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Court Approves Settlement in Metropolitan Museum of Art Case

Praising ECBA’s work as “exemplary” and noting “the exceptional outcome achieved,” on June 16, 2017, Justice Shirley Werner Kornreich of the New York Supreme Court, New York County, granted final approval to ECBA’s settlement of a long-standing putative class action against the Metropolitan Museum of Art. The case, Saska et al v. Metropolitan Museum of Art, challenged the Museum’s practice of charging admission fees to visitors and failing to adequately disclose the Museum’s “pay what you wish” policy. The suit alleged that the Museum’s signage and online advertising misled visitors into paying the full advertised “price” for admission to the Museum, when, in fact, the Museum’s policy is to allow visitors to pay as much or as little as they wish.

Under the settlement, the Museum must revise its signage and online advertising to prominently describe the admission fees as “SUGGESTED” and to include the legend: “THE AMOUNT YOU PAY IS UP TO YOU.” In addition, the Museum will require third-party vendors of admission tickets to disclose the Museum’s “pay what you wish” policy, and will train cashiers and other Museum employees interacting with the public to explain the “pay what you wish” policy to visitors to avoid any confusion. ECBA’s Andrew G. Celli, Jr.Matthew D. Brinckerhoff, and David Lebowitz handled the case.

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ECBA Brings Wrongful Arrest Lawsuit on Behalf of Keith Mitchell

ECBA brought suit on behalf of Keith Mitchell against the NYPD detective who wrongfully arrested and prosecuted him for a burglary and assault he did not commit.  Mr. Mitchell spent more than two years at Rikers Island waiting for a trial to clear his name before being acquitted by a jury.  To read the New York Daily News’ coverage of this lawsuit click here.  Mr. Mitchell is represented by Debra L. Greenberger and Doug Lieb.

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NYPD Announces New Policies Designed to Diminish Language Barriers in Domestic Abuse Incidents

Legal Services NYC, with support and additional counsel from ECBA’s Matthew Brinckerhoff, has reached a settlement with the NYPD in Padilla-Torres v. City of New York, a 2013 federal discrimination lawsuit alleging that the civil rights of domestic violence survivors with limited English proficiency had been violated by denying them interpreters.  As part of the settlement, the NYPD has agreed to equip all officers in the field with smartphones that can interpret over 240 languages. Additionally, over the next 18 months, the NYPD will provide its officers with training on how to use this smartphone application and when to recognize that an interpreter is necessary.

The plaintiffs in the case were denied safety and interpreters after being attacked by their partners.  In response to calls of domestic abuse, officers would often let the abusers speak on behalf of their victims. In some of the more egregious instances, this would result in the arrest of the victims themselves, as was the case for Arlet Macareno, one of the plaintiffs.  After being pushed down a flight of stairs by her husband, the police arrived at Ms. Macareno’s home without a Spanish interpreter. Ms. Macareno tried to explain that she was the victim of her husband’s aggression, but instead of arresting him, the officers arrested Ms. Macareno and charged her with obstruction of justice.  This settlement will provide NYPD officers with the resources to ensure that no New Yorker is subjected to the same injustices as Ms. Macareno.

To read the New York Times’ coverage of the settlement, click here.  To read the Legal Services NYC press release, click here.

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Tamir Rice Family Expresses Its Outrage at 10 Day Suspension for Officer Involved in Killing of Tamir

The announcement today by the City of Cleveland that the officers involved in the shooting death of twelve-year-old Tamir Rice have been disciplined has only added insult to the pain and grief of the Rice family. Although pleased with the termination of Officer Timothy Loehmann, the decision says nothing about his unlawful actions in shooting young Tamir without cause or justification. Loehmann was terminated not for causing Tamir’s death but rather for lying on his employment application.

The Rice family is disheartened by the decision to suspend Officer Frank Garmback for a mere 10 days where it has been determined that he failed to employ proper tactics when he drove directly up to Tamir thus contributing to the chain of events that resulted in Tamir’s shooting.

Samaria Rice, Tamir’s mother, described the discipline as “deeply disappointing. I am relieved Loehmann has been fired because he should never have been a police officer in the first place—but he should have been fired for shooting my son in less than one second, not just for lying on his application. And Garmback should be fired too, for his role in pulling up too close to Tamir. As we continue to grieve for Tamir, I hope this is a call for all of us to build stronger communities together.”

Tamir’s family is represented by ECBA attorneys Jonathan AbadyEarl Ward, and Zoe Salzman, together with William Mills of FirmEquity and Subodh Chandra of The Chandra Law Firm LLC.

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Richard Emery: Demystifying the Operations of the Commission on Judicial Conduct

By Richard Emery

Most judges choose their calling animated by a desire to serve and do justice, notwithstanding relatively low pay and, too often, poor facilities and inadequate administrative support. Most judges take great pride in knowing the law, solving the fascinating intellectual puzzles posed by many cases, and administering justice with an even hand. Taking on exalted roles in their local communities, judges render decisions in criminal and civil disputes for their fellow citizens where liberty and livelihood hang in the balance. In the quest to give meaning to life as a lawyer, it is hard to conceive of a more gratifying and significant career than that of a judge. The respect that goes with the title “Your Honor” is not only a critical component of the deference necessary to an effective justice system, but also the well-deserved salutation for the unwavering commitment to the law and justice that every good judge must have.

Regrettably, it is also occasionally the case that some judges allow the title and their power to
undermine their behavior on and off the bench in ways that degrade the office. It is a heady function, being a judge. The obsequiousness of lawyers and litigants, as well as members of the public more generally, to anyone with the title “judge” can sometimes weaken the restraint necessary to behave “judiciously.” Moreover, in the face of the inevitable emotions in fraught court proceedings, and even under the ordinary stresses of a judge’s private life, the special status of judges in our society can make it difficult to comport with appropriate demeanor and restraint.

The focus of this column will be the processes and decisions of the New York State Commission on Judicial Conduct (Commission) as well as the Advisory Committee on Judicial Ethics (Advisory Committee). The Commission adjudicates allegations of judicial misconduct and, in so doing, has created a body of judicial disciplinary precedent. The Commission is mandated by the New York State Constitution, Article 6, §22, and authorized by the Judiciary Law Article 2A.
The Advisory Committee, by contrast, opines prospectively for judges who request guidance when faced with ethical quandaries, giving a judge who follows the Advisory Committee’s opinion a safe harbor. Judiciary Law Article 7A §212(2)(l).

The impetus for writing about what these bodies do and how they function, and the interplay between them, is borne of my 13 years as a member of the Judicial Conduct Commission. The attempt here will be to demystify for the Bar and beyond these otherwise opaque arms of New York state government. Ideally, this occasional column will address the perception that the Commission disciplines judges as a secretive body that operates with little accountability, and that the Advisory Committee opines on judicial ethics unmoored to any apparent neutral principles beyond its own precedents. The goals of the column are to help judges navigate the frequent ethical shoals that all judges face and, more generally, to provide a framework for understanding the judicial disciplinary process. Thus, I will begin with an attempt to reveal in some detail how the Commission on Judicial Conduct operates.

Judicial Disciplinary Process

Judicial ethics and discipline in New York start with the Rules of Judicial Conduct (Rules). The Chief Administrator of the Courts, with the approval of the Court of Appeals, issues the Rules, which run the gamut from hortatory requirements of impartiality and independence (22 NYCRR 100.1, 100.3) to regulating in excruciating detail the circumstances in which a judge is prohibited from lending her name to the letterhead of a membership organization (22 NYCRR 100.4(C)(3)(b)(iv)). They address conflicts (22 NYCRR 100.3(E),100.4 et seq.), behavior on and off the bench (22 NYCRR 100.2,100.4), participation in electoral politics (22 NYCRR 100.5), special circumstances for part-time judges who practice law (22 NYCRR 100.6(B)), as well as myriad specific prohibitions and authorizations that frequently confront judges. A first step in understanding the judicial disciplinary process is familiarity with the Rules. But that is only the beginning.

Most cases of judicial discipline start with a complaint to the Commission by a litigant, lawyer,
concerned citizen or judge. Some complaints are generated by the Commission itself based on
information that comes to its attention. The complaint triggers an exacting due process analysis that follows the Operating Procedures and Rules of the Commission (Commission Rules). 22 NYCRR 7000 et seq. A rotating sub-committee of members reviews each new complaint—between 1,500 and 2,000 every year—which is accompanied by a staff memo. See Commission 2017 Annual Report, http://www.scjc.state.ny.us/Publications/AnnualReports.htm. Of these, the Commission dismisses around 90 percent of the complaints and votes to investigate about 10 percent.

It is fair to say that during the 13 years I sat on the Commission the decision to initiate an investigation was carefully vetted by members before a vote. Each member is painfully aware of the enormity and intimidating consequences of the decision to inform a judge that he or she is being investigated. After investigation is authorized, the Commission staff may send the judge a letter with questions and, if necessary, schedule an Investigative Appearance (IA), where a judge is questioned under oath by a Commission attorney, with a Commission designated referee presiding. Judges, of course, may be and should be represented, though judges must personally retain counsel. The financial impact can be a major factor in how judges react to the Commission decision to investigate.

Investigations vary in length, some taking a few months and others taking a year or more. They are supervised by a Commission appointed administrator, with oversight by the Commission. When completed, Commission staff submits a report to the Commission recommending either dismissal, a confidential letter of dismissal and caution, or formal charges. Last year, of the cases resolved after investigation, the Commission authorized charges against 11 percent of the judges investigated, cautioned 17 percent and dismissed 52 percent. The remainder either resigned, were not reelected or left office for other reasons when their terms expired. Id. at 3. As might be expected, the uncertainty of this phase of Commission proceedings takes an emotional toll on many judges.

Charges

Charges generally fall into one of three categories: allegations of misconduct while acting as a judge; allegations of misconduct off the bench inconsistent with being a judge; and allegations of violating rules governing the judicial campaign process. Sanctions, if formal charges are ultimately sustained, range from private caution, public admonition or censure, to removal from office.

When formal charges are authorized, the nature of the relationship between the Commission vis-à-vis the staff transforms into the classic adjudicative versus prosecutorial roles. At this point, Commission staff no longer advises or communicates ex parte with the Commission about the case. The Commission acts as adjudicator between adverse parties—the staff as prosecutor versus the respondent judge. Notwithstanding this “separation of powers,” the Commission, as the administrative body in charge of judicial discipline, remains ultimately responsible for all aspects of every case.

As a practical matter, judges who are formally charged usually either enter into negotiations with
Commission staff to reach an Agreed Statement—a plea—or they defend, filing an answer denying the factual allegations or disputing the assertion that the alleged facts constitute misconduct. Any such answer triggers a hearing before a referee. On occasion, a stipulated resignation is negotiated, where the judge agrees not to hold judicial office in the future.

Agreed Statements

Agreed Statements, which can be negotiated at any stage after formal charges, raise some of the
thorniest questions for the Commission. Jud. Law 44(5); 22 NYCRR 7000.6(d). What are essentially pleas bargains that in the criminal justice system have no precedential weight are, in Commission jurisprudence, final decisions of the Commission and, at least in theory, constitute precedent to the same extent as Commission decisions after contested hearings. Agreed Statements generally contain stipulated facts, an acknowledgment of misconduct, and a joint recommendation as to the sanction.

[…]

Though there is natural tendency in administrative settings to defer to staff, the Commission members sometimes bridle at staff’s proposed dispositions and have rejected a significant number of Agreed Statements. When an Agreed Statement is rejected, a revised one is often negotiated with a different penalty, or with additional facts. E.g., Matter of Risdale, 2012 NYSCJC Annual Report 148 (Emery dissent). Occasionally, the Commission will decide that a hearing is required for factual development, usually to enable the Commission to fix the appropriate penalty. E.g., Matter of Dixon, 2017 NYSCJC Annual Report 100; Matter of Landicino, NYSCJC 2016 Annual Report 129.

Hearings

When the alleged misconduct may warrant removal, or negotiations for an Agreed Statement are
unsuccessful, a hearing is held before a Commission referee. The Commission has a panel of available referees, who are highly-respected lawyers and retired judges willing to serve for a very modest sum ($250 per day). Hearings are governed by Commission Rules. 22 NYCRR 7000.7. The hearing is preceded by specified, quite liberal, mutual discovery. Staff has the burden proving misconduct by a preponderance of the evidence. Nonjury evidentiary rules apply. After post-hearing briefing, the referee submits a report to the Commission with findings and conclusions on each charge of misconduct, but refrains from any sanction recommendation.

Post-Hearing Proceedings

The scene next shifts to the Commission itself, which provides an opportunity for briefs and oral
argument. Commission staff argues to the Commission that the record supports misconduct and either agrees or disagrees with the referee’s report. Staff also recommends a specific penalty. The respondent judge either denies misconduct altogether or admits some misconduct and seeks a lower penalty.

After reviewing the record and the briefing, as well as analysis by the Commission clerk who is wholly independent of staff, Commission members hear argument by staff and respondent’s counsel. 22 NYCRR 7000.6(g)-(l). A crucial component of this phase is the judge’s personal presentation. It is not mandatory, but any judge who forgoes this opportunity may regret it. Judges who subject themselves to Commission questions and who are perceived as sincere and convincing in explaining their actions or a basis for leniency are very often successful in countering the staff’s recommendations.

For anyone who has been privy to these confidential proceedings, the animated questioning and
thorough preparation of Commission members manifest the rigorous commitment to fairness of these appointed, independent commissioners. In my view, the fact that final appearances before the Commission are confidential by law (unless the judge waives confidentiality) does the judiciary, the Bar and the public as a whole a serious disservice, perpetuating the star chamber
reputation of the Commission that is counterfactual and is entirely the fault of statutorily mandated confidentiality. However, no doubt, secrecy, in some cases, preserves the reputations of some judges from the troubling details of their specific cases, even if those judges are ultimately publicly disciplined.

Deliberations are careful and thoughtful, guided by the Commission chair. Despite vigorous debates, many decisions are ultimately unanimous, though dissents and concurring opinions are also frequent. Staff gets little or no deference in contested cases. Referee findings get more deference, but even these are sometimes rejected. Members make a concerted effort to follow precedent as to what behavior constitutes misconduct, guided by prior determinations and Court of Appeals’ decisions that have interpreted and applied the ethical rules. But as to penalty, results are far more ad hoc, usually correlated to the degree of good faith that the respondent judge conveys. Judges who can project a serious commitment to duty, a capacity not to re-offend and who admit their errors and apologize may be treated leniently and even, in a close case, avoid removal.

It is only when the Commission’s written decision is filed and served on the judge that the rest of the judiciary, the Bar and the public learn of any determination, and then only if public discipline is imposed. In the 13 years I served, there was not a single breach of secrecy.

Decisions of the Commission are delivered to the Court of Appeals and become final in 30 days
unless the judge appeals to the court. The Commission’s decisions are rarely overturned by the court. In the last 15 years, the Court of Appeals has affirmed 21 Commission decisions, reduced the sanction in two cases and remitted one case for a more fully developed record.

Conclusion

In the future, this column will analyze and, hopefully, reveal the strengths and vulnerabilities of the judicial disciplinary process. The effort here has been to set the stage. There are many competing dramas at play when judges are judged. Among them are what rights a judge must sacrifice to uphold confidence in the judicial system, especially when judges are elected; how to support judicial independence in the face of rigorous Commission oversight; at what point do judges betray their special role of trust by wielding power for personal gain; the role of judicial discipline as contrasted with appellate review of legal error; and many other issues in the thicket of competing values that judges constantly face. These controversies inevitably emerge from the judicial role, its power and how judges are selected. The questions these controversies pose are endlessly fascinating and, in most cases, defy resolution. If for no other reason than their importance to all of us, the goal here will be to explore them and focus debate about them.

Reprinted with permission from the May 18, 2017 edition of the New York Law Journal© 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

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NY AG Announces Successor Settlement to ECBA Race Discrimination Case Against Former Pro-Nazi Residential Community

The New York Attorney General announced a settlement agreement with the German American Settlement League (“GASL”), to continue reforms achieved in a previous settlement obtained by ECBA. The GASL, a membership-based nonprofit, was alleged to have excluded non-whites from purchasing homes in its Long Island community since the late 1930s.  The new AG settlement includes changes to GASL’s membership policies, the replacement of its President and Treasurer, and regularly reporting to the AG to demonstrate compliance. An interview with ECBA attorney Andrew Wilson concerning the two GASL settlements on CBC’s “As It Happens,” can be heard here. The entire segment is available here.

Plaintiffs in the ECBA matter were represented by ECBA attorneys Diane L. Houk and O. Andrew F. Wilson.

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Supreme Court Upholds City Standing Under Fair Housing Act, as ECBA Sought in Amicus Brief

The United States Supreme Court has ruled that the City of Miami has standing under the Fair Housing Act to sue banks that engaged in predatory lending, triggering foreclosures and other harms throughout the City. ECBA filed an amicus brief in the case supporting the City’s position, on behalf of Miami’s firefighters and first responders who have had to cope with an increase in crimes and other problems festering in foreclosed, vacant properties. The brief was authored by ECBA attorneys Diane L. Houk, Debra Greenberger, and Zoe Salzman.

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Federal Court Halts Construction on Pier 55

On behalf of clients The City Club of New York, Robert Buchanan, and Tom Fox, ECBA won a victory in federal district court against “Pier 55,” a proposed island performance venue in the Hudson River in Manhattan. The court ruled that the U.S. Army Corps of Engineers was wrong to issue a permit for the project under the Clean Water Act because the project did not need to be built in a waterway to achieve its most important goals. Construction has now been halted. The court’s decision was covered by the New York Times, New York Daily News, and Curbed, among others. ECBA lawyers Richard Emery, Elizabeth Saylor, and Doug Lieb represent the City Club and the other petitioners. Read more about ECBA’s work on this project here and here.

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Justice Department Files Discrimination Suit On Behalf of ECBA Clients

On March 1, 2017, the United States filed a housing discrimination suit on behalf of several ECBA clients against Bedford Development LLC, Carnegie Construction Corp., Jobco Inc., Robert Pascucci, and Warshauer Mellusi Warshauer Architects, P.C. The complaint alleges that these defendants failed to design and construct Sutton Manor condominium in Mount Kisco, New York, in a manner accessible to persons with disabilities. ECBA represents several disabled residents who purchased units at Sutton Manor based on the false promise of an accessible home to live in post-retirement. This suit originates from complaints ECBA filed on behalf of these residents with the Department of Housing and Urban Development. They are represented by Diane L. Houk and Jessica Clarke of ECBA.

To read more about the complaint, click here.

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