Thursday, December 31, 2009

Michael Colodner, Chief Counsel to the New York State Unified Court System, Leaves, and is Replaced With John W. McConnell of the First Department

Counsel Guided Court System With a Steady Hand
By Joel Stashenko, NYLJ, December 31, 2009

"Unflappable" is a word colleagues invariably use to describe Michael Colodner,(pictured above) whose 35-year career as a lawyer for the New York State court system is coming to an end.

The recently retired chief counsel's even temperament stood him in particularly good stead during the 1970s as tensions mounted with the creation of a statewide court system, a transition that prompted angry demonstrations by court employees and generated what Mr. Colodner called an "enormous amount" of litigation.

"He didn't get too excited about victories and he took his occasional defeats in stride and he never lost sight of the goal of trying to improve the court system," said Richard Bartlett, the state's first chief administrative judge. "I have great admiration for him."

"We went toe-to-toe with him many times, but it was always professional, never personal," said Dennis Quirk, president of the New York State Court Officers Association. "He is probably the last of the people who know the history of the OCA [Office of Court Administration]. He was always a gentleman, even when you cursed him out. I don't think I ever saw him lose his temper. He will be sorely missed."
Over time, new rules and regulations have clarified the role of the state court administration, and much of the initial rancor has died down. Chief Judge Jonathan Lippman, who was chief administrative judge from 1996 to 2007, said that Mr. Colodner had been instrumental in the evolution of the system from a "mom-and-pop operation" to a "professional, cutting-edge" judiciary.

As chief counsel of the Unified Court System, Mr. Colodner headed a legal department of 15 lawyers who represent the court system in litigation, write judicial ethics opinions, advise administrative judges on the legality of court management issues such as the temporary transfer of judges and write proposed legislation and administrative rules.

"Basically, it's a working law office," said Mr. Colodner.

The current administrative judge, Ann Pfau, credits Mr. Colodner with "teaching me how to be a lawyer" starting in 1984, when he hired her as a counsel. She said that his vast institutional and legal knowledge has made him an invaluable sounding board.
"I probably walked down that hallway four times a day to consult with him about this and that," Judge Pfau said. "He was also very much kind of a counselor for the judges. I know a lot of judges would call him with the same purpose. That is to ask him, 'What do you think?' That is something that is very valuable."

Mr. Colodner, 67, who earned $136,500 as chief counsel, resigned effective Dec. 13. But he will remain with the court system part-time for now, working on special projects and assisting his replacement, John W. McConnell. Mr. McConnell, 50, had been chief clerk at the Appellate Division, First Department (NYLJ, Nov. 17).
Mr. Colodner's exact assignments and the money he will receive in his part-time role remain "in discussion," he said.

Longer-term, Mr. Colodner said he is not sure what he will do next.
"I can never think of myself as fully retired," Mr. Colodner said in a recent interview. "It is just not clear to me what that next thing is going to be. It may be something outside the legal field. It may be something within the legal field. It is a good time right now for me to reflect."

A 'Rough' Transition

Mr. Colodner was hired in 1974 as an assistant counsel as the state began to gear up for its takeover of all courts above the town and village court level. The Columbia Law School graduate became chief counsel in 1983.

An amendment to the state Constitution approved in 1977 took responsibility for the administration of the state courts away from the four appellate divisions and vested it in the state's chief judge who, in turn, designated a chief administrative judge to handle the day-to-day management of a new state Unified Court System with some 1,300 judges and 16,000 non-judicial employees.

Mr. Colodner recalled that he was brought into the court system because it was anticipated that a litigation specialist would be needed to coordinate defense of the suits that would arise with the new system. Mr. Colodner had spent the previous seven years as an attorney for then-state Attorney General Louis J. Lefkowitz, for whom he argued two appeals before the U.S. Supreme Court.

Consolidation of state courts under the chief judge "created a good deal of tension in the transition," Mr. Colodner said.

"It was rough. Rough," Mr. Colodner recalled. "The transition to the state in 1977 generated enormous amounts of litigation because the employees were basically paid locally and had their own rules governing them based on what their local rules were. Suddenly, we had to assimilate them [in a state system]. We had to reclassify all their job positions."

Judges, too, sometimes exhibited a "great deal" of resistance to assignments outside of their home counties, Mr. Colodner said.

Mr. Bartlett remembered that court officers demonstrated outside the apartment building that housed then-chief judge Charles Breitel, as well as Mr. Bartlett's homes in Glens Falls and Lake George. The officers outside Mr. Breitel's home chanted, "Drop dead, Breitel! Drop dead, Breitel!" Mr. Bartlett said.
Mr. Quirk said he helped organize a 1978 demonstration of nearly 1,000 court officers who were bused to Glens Falls and Lake George to protest benefits packages and job classifications outside Mr. Bartlett's homes. Mr. Quirk remembered that the chant of those protesters was, "Bartlett is a pear!"

"I was picketed, but I was never hung in effigy. It was everything short of that," said Mr. Bartlett, who later headed Albany Law School and is now a partner at the Glens Falls firm Bartlett, Pontiff, Stewart & Rhodes. "It was a very exciting five-plus years. I found deaning at Albany Law School to be a piece of cake after that."
Mr. Quirk said he got to know Mr. Colodner at the same time, when Mr. Colodner was chief assistant to the court system's first counsel, Michael Juviler, and found Mr. Colodner to be "hard-working" and "dedicated."

Mr. Colodner said a series of court rulings and administrative actions in his tenure have helped mold what he called the still-evolving shape of the court system. They include Morgenthau v. Cooke, 56 NY2d 24 (1982), in which the Court of Appeals rejected former chief judge Lawrence H. Cooke's system of temporarily assigning judges to Supreme Court benches in New York City and Maresca v. Cuomo, 64 NY2d 242 (1984), in which the Court upheld the constitutionality of mandatory retirement rules for state judges.

Over time, collective bargaining agreements between the state and unions representing what had been locally paid non-judicial court employees helped clarify and standardize employees' relationships with the Unified Court System, Mr. Colodner said.

"Things became much clearer," Mr. Colodner said. "It was not only a question of clarity, but a question of acceptance. The court system, ultimately, began to see that it was working and you got used to how the administrative lines were drawn and it turned out it wasn't so terrible."

Today's court system is "a far cry from the edge-of-the-seat-of-the-pants operation that we had at the beginning," Judge Lippman, who joined the system as a counsel in 1989, said in an interview. "Accountability, standards, criteria, it is all part of what the pioneers built, people like Mike Colodner."

Mr. Colodner said he regrets that legislators have spurned calls for further court reform, such as the merger of trial courts.

"It is fragmented," he said. "We would prefer to have something a bit more universal. But it works."

Judge Lippman said that Mr. Colodner's knowledge of the way the system has evolved since the 1970s will be missed.

"You can be a great lawyer and not understand your client," Judge Lippman said. "But in this case, Michael understands his clients better than anyone else. His knowledge is encyclopedic about the courts, all of the legal/policy issues that have come up over the years.…Everyone knows when you get into trouble and don't know what to do, you call Michael up."

@|Joel Stashenko can be reached at

From Editor Betsy Combier:

I have a different view of the Unified Court System:
RICO in the New York State Unified Court System: How the Courts Steal Your Property, Your Children, and Try To Destroy Your Life...And How You Can Stop Them

I wish Mr. Colodner well, and yet, I must urge all litigants and potential litigants to be vigilant when you deal with anyone, at any level, within the New York State Court System.

John W. McConnell, Mr. Colodner's replacement, was the clerk of the Appellate Division, First Department, when Christine Anderson was complaining about the whitewashing of alleged unlawful acts performed by lawyers at the First Department Disciplinary Committee. McConnell denied me a trial by jury on the validity of my mom's Will (see my article above), and was also the law clerk to Judge Jonathan Lippman at the First Department who decided in 2005 to deny my appeal of Lottie Wilkins' decision to permit my Church, Madison Avenue Presbyterian Church, to withhold my mom's ashes from me for 8 days. The First Department ruled that the Church was liable for the withholding of the ashes (this is a misdemeanor) but they were justified under the circumstances.

As judge Wilkins threatened me with contempt if I testified or presented evidence at trial about MAPC being a Church, and my witnesses were not allowed by her to answer any questions posed by my lawyer, what these circumstances were, I dont know.

In the Matter I have attached below, Robert Bartlett and John McConnell did not want to give Dr. Marilyn Bartlett any accommodations for her disability in order for her to take the New York State Bar Exam. I dont like anyone who denies a person's rights to an accommodation when needed.

That's my two cents, Mr. McConnell.

Betsy Combier

August Term, 1997
(Argued June 2, 1998; Decided September 14, 1998)
Docket No. 97-9162
NEW YORK STATE BOARD OF LAW EXAMINERS, JAMES T. FULLER, individually and as Executive Secretary, New York State Board of Law Examiners, JOHN E. HOLT-HARRIS, JR., individually and as Chairman, New York State Board of Law Examiners, RICHARD J. BARTLETT, individually and as member, New York State Board of Law Examiners, LAURA TAYLOR SWAIN, individually and as member, New York State Board of Law Examiners, CHARLES T. BEECHING, JR., individually and as member, New York State Board of Law Examiners, and IRA P. SLOANE, individually and as member, New York State Board of Law Examiners,

Before: MESKILL and CABRANES, Circuit Judges, and NICKERSON, District Judge.
Appeal from a July 14, 1997 judgment of the United States District Court for the Southern District of New York, Sotomayor, J., after a 21 day bench trial, finding appellee disabled within the meaning of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and entering injunction against the New York State Board of Law Examiners requiring it to provide appellee with reasonable accommodations in taking the New York State Bar Examination and to compensate her for fees paid in connection with past attempts to pass that examination. See Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094 (S.D.N.Y. 1997).
Affirmed in part, vacated in part and remanded.

JOHN W. McCONNELL, Deputy Solicitor General, State of New York, New York City (Dennis C. Vacco, Attorney General of the State of New York, Thomas D. Hughes, Assistant Solicitor General, Judith T. Kramer, Rebecca Ann Durden, Assistant Attorneys General, State of New York, New York City, of counsel),
for Appellants.
JO ANNE SIMON, Brooklyn, NY (Ruth Lowenkron, Dorothy A. Wendel, Karen Fisher Gutheil, New York Lawyers for the Public Interest, Inc., New York City, of counsel),
for Appellee.
Bill Lann Lee, Acting Assistant Attorney General, Jessica Dunsay Silver, Marie K. McElderry, Department of Justice, Washington, D.C.,
for Amicus Curiae United States.
John S. Willems, White & Case, New York City, Kleo J. King, Mary Lu Bilek, Association of the Bar of the City of New York, New York City,
for Amicus Curiae Association of the Bar of the City of New York.
Robert A. Burgoyne, Fulbright & Jaworski, Washington, D.C., Erica Moeser, National Conference of Bar Examiners, Chicago, IL,
for Amicus Curiae National Conference of Bar Examiners.
Janet D. Carson, National Board of Medical Examiners, Philadelphia, PA, Pamela C. Deem, Carey, Hill & Scott, Charleston, WV,
for Amici Curiae National Board of Medical Examiners and Federation of State Medical Boards of the United States, Inc.
David McMillin, Linda R. Blumkin, Elise C. Boddie, Sherab Posel, Fried, Frank, Harris, Shriver & Jacobson, New York City,
for Amici Curiae The Ass'n on Higher Education and Disability, Disability Rights Advocates, Disability Rights Education and Defense Fund, Inc., The Int'l Dyslexia Ass'n, The Learning Disabilities Ass'n of America, The Nat'l Ass'n of Protection and Advocacy Systems, The Nat'l Center of Higher Education for Learning Problems Program, The New York Branch of the Orton Dyslexia Society, The New York State Commission on the Quality of Care for the Mentally Disabled, The Society of American Law Teachers, and United Cerebral Palsy Associations of New York State, Inc.
MESKILL, Circuit Judge:
This is an appeal from a July 14, 1997 judgment of the United States District Court for the Southern District of New York, Sotomayor, J., after a 21 day bench trial, finding appellee, Dr. Marilyn Bartlett, disabled within the meaning of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 701, et seq., and entering an injunction against the appellant, New York State Board of Law Examiners (Board) requiring it to provide Dr. Bartlett with reasonable accommodations in taking the New York State Bar Examination. The district court also awarded $12,500 in damages to compensate her for fees paid in connection with past attempts to pass that examination. See Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094 (S.D.N.Y. 1997). The district court granted qualified immunity to the individual defendants. That decision has not been appealed.
We affirm in part, vacate in part and remand for further proceedings. We agree, albeit for different reasons, with the district court's ultimate conclusion that Dr. Bartlett, who has fought an uphill battle with a reading disorder throughout her education, is among those for whom Congress provided protection under the ADA and the Rehabilitation Act. As a result, she is entitled to reasonable accommodations in sitting for the New York bar examination. The ADA and the Rehabilitation Act do not guarantee Dr. Bartlett examination conditions that will enable her to pass the bar examination -- that she must achieve on her own. What Congress did provide for, and what the Board has previously denied her, is the opportunity to take the examination on a level playing field with other applicants.
Specifically, this appeal presents the legal issues of (1) whether the district court erred in refusing to defer to the Board's determination that Dr. Bartlett is not disabled; (2) whether the district court erred in concluding that Dr. Bartlett is disabled under the ADA and the Rehabilitation Act in her ability to work and thus entitled to accommodations in taking the New York State Bar Examination; (3) whether the district court erred in concluding that the Board is subject to the strictures of the Rehabilitation Act; and (4) whether the district court erred in awarding Dr. Bartlett compensatory damages in the amount of $12,500 from the Board for fees paid in connection with the five bar examinations that she failed.
We conclude that the district court properly declined to defer to the Board's determination regarding Dr. Bartlett's disability. We also conclude that because the record demonstrates that Dr. Bartlett suffers from a disability that substantially limits her major life activities of reading and learning, it was error for the district court to reach the issue of whether Dr. Bartlett is disabled in her ability to work. However, because Dr. Bartlett nevertheless does suffer a learning or reading impairment that rises to the level of a substantial limitation cognizable under the ADA and the Rehabilitation Act, we find no error in the district court's ultimate conclusion that Dr. Bartlett is entitled to reasonable accommodations in taking the New York State Bar Examination. We also agree with the district court that the Board is subject to the strictures of the Rehabilitation Act and that Dr. Bartlett is entitled to compensation for at least some of the fees paid in connection with past attempts to pass the New York State Bar Examination without accommodations. Because we disagree with the district court on the proper amount of compensatory damages, we vacate and remand on that narrow ground only.
At trial, the district court found the following relevant facts. Plaintiff-appellee Dr. Marilyn Bartlett is a 49 year old woman with a cognitive disorder that impairs her ability to read. Despite her limitation, she has earned a Ph.D. in Educational Administration from New York University, a law degree from Vermont Law School, and has met all prerequisites to sit for the New York State Bar Examination (the bar examination). The defendant-appellant Board is a State entity charged with testing and licensing applicants seeking admission to the New York State Bar.
Since 1991, Dr. Bartlett has taken the bar examination five times. On at least three and possibly four separate occasions, she has applied as a reading disabled candidate to take the bar examination with accommodations. Dr. Bartlett has sought unlimited or extended time to take the test, permission to tape record her essays and to circle her multiple choice answers in the test booklet. The Board has denied her request each time, contending that her application does not support a diagnosis of a reading disability or dyslexia. In total, Dr. Bartlett has taken the examination four times without accommodations and has yet to pass. On July 20, 1993, after the Board denied her most recent application for accommodations, she commenced this action in the district court alleging, among other things, violations of Title II of the ADA, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. In her complaint, she sought, among other things, injunctive relief in the form of reasonable testing accommodations and compensatory damages for fees paid in connection with past attempts to pass the examination.
On July 26, 1993, the parties entered into a stipulation. Under its terms, Dr. Bartlett received accommodations during the July 1993 bar examination that included time-and-a-half for the New York portion of the test and the use of an amanuensis to read the test questions and to record her responses. In addition, the Board allowed Dr. Bartlett to mark the answers to the multiple choice portion of the examination in a question book rather than on a computerized answer sheet. However, the parties agreed that if Dr. Bartlett passed the examination, the results would not be certified unless she prevailed in this lawsuit. Despite accommodations, Dr. Bartlett failed the examination.
The Board has denied Dr. Bartlett's requested accommodations because its expert on learning disabilities, Dr. Frank Vellutino (Dr. Vellutino), does not believe that she has dyslexia or a reading disability. Dr. Vellutino's opinion is grounded primarily on Dr. Bartlett's performance on two subtests of the Woodcock Reading Mastery Test-Revised (the Woodcock), a battery of tests commonly employed to assess learning disabilities. Because Dr. Bartlett achieved scores above the 30th percentile on two subtests of that battery, Dr. Vellutino concluded that she did not have a reading disability.
The two subtests at issue are the Woodcock "Word Attack" and "Word Identification." These tests are designed to measure a subject's "`[w]ord identification and phonetic decoding or word analysis skills (ability to "sound out" a word).'" Bartlett, 970 F.Supp. at 1112. Specifically, the "Word Attack" subtest requires the subject to sound out 45 nonsense words of varying complexity. The "Word Identification" subtest, on the other hand, measures a subject's ability to identify 106 real words in isolation that range from a simple "is" to the more difficult "zymolysis." Both tests are untimed and the scores do not reflect incorrect tries that precede a correct answer. Because "the incidence of learning disabilit[ies] in the population is estimated at between 5% and 20%," see id., Dr. Vellutino estimates that a 30% cutoff is reasonably certain to capture all disabled applicants. Accordingly, he recommended against providing accommodations to any applicant, including Dr. Bartlett, who performs above the 30th percentile.
At trial, Dr. Bartlett challenged Dr. Vellutino's opinion. She presented expert testimony and other evidence to the effect that her reading disability could not be measured solely by the Woodcock. On July 7, 1997, the court issued its opinion and order. After a thorough and painstaking discussion of Dr. Bartlett's evidence, the district court found fatal infirmities in Dr. Vellutino's reliance on the Woodcock and the Board's subsequent rejection of Dr. Bartlett's claim of disability. Specifically, the court found (a) the Woodcock could not measure Dr. Bartlett's lack of "automaticity," i.e., her ability to recognize a printed word and read it accurately and immediately without thinking; (b) the Woodcock was not timed and thus could not measure the slowness of reading -- an important characteristic of adult dyslexics like Dr. Bartlett, who, on other tests, had demonstrated a reading rate comparable to the bottom fourth percentile of college freshman when timed; (c) the Woodcock was designed principally to assess children and did not have enough items in the difficult range; and (d) Dr. Bartlett's Woodcock results exhibited discrepancies, revealing high reading comprehension scores in comparison to low, but average, Word Attack and Word Identification scores. See id. at 1114. Furthermore, the district court found that Dr. Vellutino's use of a 30th percentile cutoff was arbitrary and flawed because other studies demonstrated that one third of adults with dyslexia scored above that percentile on similar tests. See id.
In sum, the district court agreed with Dr. Bartlett's experts that "a reading disability is not quantifiable merely in test scores. . . . [Rather] diagnosing a learning disability requires clinical judgment." Id. In this regard, the district court found that Dr. Bartlett's low "test scores on the Woodcock, combined with clinical observations of her [slow and halting] manner of reading amply support a conclusion that she has an automaticity and a reading rate problem." Id; see also id. at 1107. Moreover, the court agreed with Dr. Bartlett's experts that her "earlier work as a school teacher where phonics were stressed allowed [her] to develop `self-accommodations' that account for her ability to spell better and to perform better on word identity and word attack tests than would be expected of a reading disabled person." Id. at 1109; see also id. at 1120.
The district court, however, did not find that Dr. Bartlett is substantially limited in the major life activities of reading or learning, reasoning that her "history of self-accommodation has allowed her to achieve . . . roughly average reading skills (on some measures) when compared to the general population." Id. at 1120. Rather, the court, relying on regulations promulgated under Title I of the ADA, held that Dr. Bartlett is disabled in her ability to "work" because her reading rate compared unfavorably with "persons of `comparable training, skills and abilities.'" Id. at 1121. Specifically, the court concluded that Dr. Bartlett's inability to compete on the bar examination constituted a work disability, stating:
If plaintiff's disability prevents her from competing on a level playing field with other bar examination applicants, then her disability has implicated the major life activity of working because if she is not given a chance to compete fairly on what is essentially an employment test, she is necessarily precluded from potential employment in that field. In this sense, the bar examination clearly implicates the major life activity of working.
Id. The court then concluded, inter alia, that Dr. Bartlett is disabled within the meaning of the ADA and § 504 of the Rehabilitation Act, id. at 1126, and that the Board's failure to accommodate her constituted violations of those statutes.
As a remedy for the violations found, the court ordered injunctive relief in the form of reasonable testing accommodations including double time in taking the examination, the use of a computer, permission to circle multiple choice answers in the examination booklet, and large print on both the New York State and Multistate Bar Exam. Id. at 1153. The court also awarded compensatory damages in the amount of $12,500 for fees paid in connection with the five bar examinations that Dr. Bartlett failed. Id. at 1152.
On July 14, 1997, the Board moved for relief from the judgment, or in the alternative to amend it, pursuant to Fed. R. Civ. P. 59(e) and 60(b). By memorandum of decision dated August 15, 1997, the district court denied that motion. See Bartlett v. New York State Bd. of Law Examiners, 2 F.Supp.2d 388 (S.D.N.Y. 1997). On September 10, 1997, the Board filed its notice of appeal.
On appeal, the Board claims that the district court (1) erred in refusing to defer to its determination that Dr. Bartlett is not disabled; (2) erred in concluding that Dr. Bartlett is disabled in her ability to work and thus entitled to accommodations in taking the bar examination; (3) erred in concluding that the Board is subject to the strictures of the Rehabilitation Act; and (4) erred in awarding compensatory damages in the amount of $12,500 for fees paid in connection with each of the five bar examinations that Dr. Bartlett failed.
After a bench trial, we review a district court's factual findings for clear error and its conclusions of law de novo. See Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir. 1991). So-called mixed questions of law and fact are reviewed de novo. Travellers Int'l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994); see also Muller v. Committee on Special Educ. of the East Islip Union Free School Dist., 145 F.3d 95, 102 (2d Cir. 1998) (de novo review governed where statutory and regulatory definitions were applied to facts surrounding plaintiff's medical and educational history).
1. Deference to the Board
The Board first argues that the district court erred in refusing to accord "considerable judicial deference" to its factual finding that Dr. Bartlett is not disabled. Specifically, the Board asserts that our decision in Doe v. New York Univ., 666 F.2d 761, 775-76 (2d Cir. 1981), requires federal courts to defer to the findings of a state administrative agency when the agency's findings are supported by expert opinion. We disagree.
A federal court may, in its discretion, defer to the findings of a state administrative agency. See Gregory K. v. Longview School Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (quoting Town of Burlington v. Department of Educ., 736 F.2d 773, 792 (1st Cir. 1984), aff'd, 471 U.S. 359 (1985)). "There is no generally accepted rule to determine the degree of deference that [should be accorded] to the factual determinations of state and local administrative agencies." New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644, 648 (2d Cir. 1979). When deference is due, however, it is not because of the factfinder's status as a state agency, but because of the factfinder's inherent expertise on "technical matters foreign to the experience of most courts." Id. at 650; see also Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (citing Bell v. Wolfish, 441 U.S. 520, 544 (1979), and its observation that "[c]ourts should not second-guess the expert administrators on matters on which they are better informed.") (internal quotation marks omitted). Thus, in Doe, we deferred to the findings of an academic institution on issues relating to academic qualifications required for admission to an institution of higher education, because "[c]ourts are particularly ill-equipped to evaluate academic performance." Id. at 776 (citation and internal quotation marks omitted). We did not, as the Board would have it, announce a rule of law that deference should be accorded once a state agency's factfinding is supported by expert opinion regardless of the agency's particular expertise. Moreover, even where an agency has expertise, courts should not allow agency factual determinations to go unchallenged, see Carey, 612 F.2d at 648, and deference is particularly "inappropriate once that agency is the defendant in a discrimination suit." Id. at 649.
Applying these principles to the instant case, the district court properly refused to defer to the Board. The Board has no expertise in assessing learning disabilities. Rather, the Board's expertise is in defining the minimum qualifications necessary to practice law in New York. Accordingly, both reason and the law militate against giving deference to the Board's findings regarding disability, especially where, as here, the Board is defending against charges of illegal discrimination.
2. Disability
The central issue on appeal is whether Dr. Bartlett is disabled within the meaning of the ADA and the Rehabilitation Act and thus entitled to reasonable accommodations in taking the bar examination. We conclude that she is disabled, but for reasons other than those articulated by the district court.
An individual is disabled within the meaning of the ADA and § 504 of the Rehabilitation Act if, inter alia, that individual suffers "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A) (ADA); see also 29 U.S.C. § 706(8)(B) (Rehabilitation Act). "The ADA does not define [the] . . . phrases above that are critical to understanding the nature of an ADA disability: `physical or mental impairment,' [`major life activities' and `substantially limits']." See Price v. National Bd. of Medical Examiners, 966 F.Supp. 419, 424 (S.D. W.Va. 1997). However, Congress authorized the Equal Employment Opportunities Commission (EEOC) to issue regulations defining workplace discrimination under Title I of the ADA. See 42 U.S.C. § 12116. The Attorney General (Department of Justice), on the other hand, was authorized to issue regulations addressing discrimination in both public and private service organizations under Titles II and III of the ADA. See 42 U.S.C. § 12134(a) (Title II, Subtitle A), and 42 U.S.C. § 12186(b) (Title III).
Dr. Bartlett commenced this action under, inter alia, Title II of the ADA against the Board, a public licensing entity. See 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(6). She claimed to suffer a physical or mental impairment that substantially limited her major life activities of learning (or reading) and working. Regulations promulgated by the Justice Department under Title II of the ADA define a "physical or mental impairment" as "[a]ny mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 28 C.F.R. § 35.104 (at Disability (1)(i)(B)) (emphasis added). These same regulations define "major life activities" as "functions such as . . . walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. § 35.104 (at Disability (2)) (emphasis added). Title II regulations do not define the phrase "substantially limits." However, the Justice Department's Title II interpretive guidance states that "Title II . . . incorporates those provisions of titles I and III of the ADA that are not inconsistent with the regulations implementing [the Rehabilitation Act]." See 28 C.F.R. § 35.103, App. A. We therefore turn to Titles I and III for the definition of "substantially limits."
Under Title I, "substantially limits" is defined as "[s]ignificantly restrict[s] as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added). This definition is consistent with the Justice Department's Title II and III interpretive guidance. See 28 C.F.R. §§ 35.104 App. A at 470, 36.104 App. B at 611 (measuring the restriction of major life activities "in comparison to most people"). However, for the specific major life activity of "working," Title I regulations define "substantially limits" as
significantly restrict[s] . . . the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i) (emphasis added).
In its opinion and order, the district court concluded that Dr. Bartlett is not "substantially limited" in her major life activities of reading or learning, reasoning that her "history of self-accommodation has allowed her to achieve . . . roughly average reading skills (on some measures) when compared to the general population." Bartlett, 970 F.Supp. at 1120 (emphasis added). However, in the district court's view, the bar examination implicates the major life activity of working because "if [Dr. Bartlett] is not given a chance to compete fairly on what is essentially an employment test, she is necessarily precluded from potential employment in that field." Id. at 1121. In turn, the Title I "working" rubric provides for a comparison with a more narrow reference group -- the population having "comparable training, skills and abilities," 29 C.F.R. § 1630.2(j)(3)(i) -- in determining whether a limitation is substantial. Invoking that standard, the district court concluded that Dr. Bartlett is disabled within the meaning of the ADA because her "reading ability" compared unfavorably with people of "[comparable] educational achievement," that is, with persons of "[comparable] background, skills, and abilities." Id. at 1126.
On appeal, the lion's share of the arguments center on whether the district court properly concluded that the bar examination implicates the major life activity of working, and whether it was appropriate for the district court to employ the Title I comparative standard for determining a working disability in this Title II case. Because we believe, however, that the district court erred in its threshold holding that Dr. Bartlett is not substantially limited in her major life activity of reading or learning as compared to the manner and condition under which the average person can read or learn, we do not reach the issue of whether Dr. Bartlett is disabled in her major life activity of working or the extent to which the Title I standard for assessing a working disability may apply. See 29 C.F.R. Pt. 1630, App. § 1630.2(j) ("If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working.").
As we have discussed, the district court concluded that Dr. Bartlett was not substantially limited in reading or learning, and hence not disabled within the meaning of the ADA or § 504 of the Rehabilitation Act, because her "history of self-accommodation has allowed her to achieve . . . roughly average reading skills (on some measures) when compared to the general population." Bartlett, 970 F.Supp. at 1120. Dr. Bartlett, joined by the Justice Department as amicus curiae, claim error in this aspect of the court's reasoning. Specifically, both Dr. Bartlett and the Justice Department assert that a person's ability to self-accommodate does not foreclose a finding of disability. We agree.
"[A] disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids." H.R. Rep. No. 101-485(II), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334. In Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997), cert. denied, 118 S.Ct. 693 (1998), the Eighth Circuit held that a police officer, blinded in one eye, was disabled within the meaning of the ADA notwithstanding his development of self-accommodations or "subconscious adjustments" enabling him to compensate for the limitation. Id. at 627. In this regard, the court stated: "[The plaintiff's] brain has mitigated the effects of his impairment, but our analysis of whether he is disabled does not include consideration of mitigating measures. His personal, subconscious adjustments to the impairment do not take him outside of the protective provisions of the ADA." Id. at 627-28; see also Wilson v. Pennsylvania State Police Dep't, 964 F.Supp. 898, 907 (E.D. Pa. 1997) (concluding that plaintiff is entitled to proceed to trial based on disability despite use of glasses to correct vision); cf. Stillwell v. Kansas City, Mo. Bd. of Police Comm'rs, 872 F.Supp. 682, 685 (W.D. Mo. 1995) (concluding that self-accommodating plaintiff is disabled under Title II). In this case, Dr. Bartlett suffers from a lack of automaticity and a phonological processing defect that significantly restricts her ability to identify timely and decode the written word, that is, to read as compared to the manner and conditions under which the average person in the general population can read or learn. Her history of self-accommodations, while allowing her to achieve roughly average reading skills (on some measures) when compared to the general population, "do not take [her] outside of the protective provisions of the ADA," Doane, 115 F.3d at 627-28, especially where, as here, the dispositive measure is the Woodcock, a test that allowed her unlimited time to compensate for her disability, and a test that cannot measure automaticity directly. Hence, we agree that Dr. Bartlett is disabled within the meaning of Title II of the ADA and § 504 of the Rehabilitation Act and is entitled to reasonable accommodations in taking the bar examination.
3. The Rehabilitation Act
Although it is undisputed that the Board is subject to the ADA -- an adequate independent ground for our finding of liability above -- the Board contests the district court's conclusion that liability may also be premised on the Rehabilitation Act, because it contends that it is not an entity subject to that statute. The district court found that because the Board has "elect[ed] to accept [federal] money, . . . the Board . . . consented to . . . the burdens of Section 504 [of the Rehabilitation Act]." Bartlett, 970 F.Supp. at 1118 (emphasis added). The Board argues that the district court's finding is clearly erroneous because (a) the record contains no evidence that the Board receives federal funds; (b) the Board has no authority to accept or decline federal funds received by other state agencies; and (c) the Board's operation costs are in no way subsidized by federal funds.
Dr. Bartlett responds that because the Board "receives" federal funds from two New York agencies, the Board is bound by the Rehabilitation Act. Specifically, the New York State Department of Education, Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and the New York State Department of Social Services, Commission for the Blind and Visually Handicapped (CBVH) receive federal funds and issue vouchers for handicapped bar applicants to pay for the bar examination. The individual bar applicants submit the vouchers to the Board which in turn submits them to the VESID and the CBVH for payment. Thus, Dr. Bartlett maintains that the Board is a recipient of federal funds within the meaning of § 504. We agree.
Section 504 of the Rehabilitation Act prohibits discrimination against persons with disabilities by "any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). "Congress limited the scope of § 504 to those who actually `receive' federal financial assistance because it sought to impose § 504 coverage as a form of contractual cost of the recipient's agreement to accept the federal funds." United States Dep't of Transp. v. Paralyzed Veterans, 477 U.S. 597, 605 (1986) (emphasis added). Thus, section 504 obligations may be imposed only on "those who are in a position to accept or reject those obligations as a part of the decision whether or not to `receive' federal funds." Paralyzed Veterans, 477 U.S. at 606 (emphasis added). There is neither a requirement that a state entity directly receive federal financial assistance, see Grove City College v. Bell, 465 U.S. 555, 564 (1984), nor that it directly benefit from that assistance, see Paralyzed Veterans, 477 U.S. at 607 (citing Grove City).
Shortly after the Supreme Court's decisions in Grove City and Paralyzed Veterans, Congress amended the Rehabilitation Act to extend § 504 liability to departmental or agency affiliates and transferees. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, § 4, 102 Stat. 28, 29 (1988), (codified at 29 U.S.C. § 794) (1988 Amendments). Under the 1988 Amendments, the definition of "program or activity" was expanded to include not only a state or local entity originally receiving such assistance, but also each department or agency to which it "extend[s]" that assistance. 29 U.S.C. § 794(b)(1)(B) (emphasis added). Similarly, regulations promulgated under the Rehabilitation Act define a "recipient" as including "any instrumentality of a state . . . to which Federal financial assistance is extended directly or through another recipient." 45 C.F.R. § 84.3(f) (emphasis added). Neither the statute nor the regulations require an analysis of whether the instrumentality of a state to which the assistance is "extended," must also be in a position to accept or reject § 504 obligations for the strictures of the Rehabilitation Act to apply.
Therefore, although there is nothing in the record to indicate that the Board ever actually elected to accept federal funds, the lack of such evidence is immaterial. Likewise, it is not relevant whether the Board directly receives federal assistance or benefits from such assistance by way of subsidy. The Board is bound by the Rehabilitation Act simply because two state entities, VESID and the CBVH, elected to receive federal funds and then extended that assistance to the Board in the form of vouchers for handicapped bar applicants. Accordingly, the district court's conclusion that the Board is subject to § 504 is correct.
4. Compensatory Damages
a. Compensatory Damages and the Rehabilitation Act
The Board next argues that the district court erred in awarding Dr. Bartlett compensatory damages. Specifically, the Board asserts that while compensatory damages are available under the ADA and the Rehabilitation Act, Dr. Bartlett is not entitled to them because she failed to prove intentional discrimination. In this regard, the Board argues that the district court conceded the lack of discriminatory intent by finding, in the context of its qualified immunity analysis, that the Board's denial of accommodations was "objectively reasonable" and that "[d]efendants seemingly made an attempt to comply with the statutes." Bartlett, 970 F.Supp. at 1146.
We conclude that Dr. Bartlett met her burden of proving discriminatory intent within the meaning of the ADA and the Rehabilitation Act. Accordingly, we find no error in the conclusion of the district court that she is entitled to compensatory damages. A plaintiff aggrieved by a violation of the ADA or the Rehabilitation Act may seek Title VI remedies. See 29 U.S.C. § 794a(a)(2); see also 42 U.S.C. § 12133 (ADA, looking to remedies provided under the Rehabilitation Act); Bartlett, 970 F.Supp. at 1147 n.39. The law is well settled that intentional violations of Title VI, and thus the ADA and the Rehabilitation Act, can call for an award of money damages. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74 (1992) (in the context of Title IX cases, compensatory damages are available for an intentional violation); Pandazides v. Virginia Bd. of Education, 13 F.3d 823, 830 (4th Cir. 1994) (because of the similarity between Title IX and § 504 of the Rehabilitation Act, compensatory damages are available for intentional discrimination); Moreno v. Consolidated Rail Corp., 99 F.2d 782, 789 (6th Cir. 1996) ("Every circuit that has reached the issue after Franklin has held that compensatory damages are available under [the Rehabilitation Act].").
In the context of the Rehabilitation Act, intentional discrimination against the disabled does not require personal animosity or ill will. See Rambo v. Director, Office of Workers' Compensation Programs, 118 F.3d 1400, 1406 (9th Cir. 1997) (citing Oxford House-C v. City of St. Louis, 843 F.Supp. 1556, 1577 (E.D. Mo. 1994)). Rather, intentional discrimination may be inferred when a "policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy . . . [or] custom." Ferguson v. City of Phoenix, 931 F.Supp. 688, 697 (D. Ariz. 1996) (internal quotation marks and citations omitted) (first alteration in original); see also Canton v. Harris, 489 U.S. 378, 385 (1989).
In this case, the Board implemented a policy of denying accommodations to any learning disabled bar applicant who achieved scores above the 30th percentile on the Woodcock Word Attack and Word Identification tests. As the evidence showed at trial, however, one third of adults with dyslexia scored above that percentile on similar tests. Moreover, the Woodcock, unlike the bar examination, is untimed. Consequently, the Woodcock is unreliable in measuring a disability commonly manifested in part by a deficient reading rate. Nevertheless, based on that measure, the Board repeatedly denied Dr. Bartlett's requests for accommodations. We conclude that implementing such a policy constituted deliberate indifference to a strong likelihood of violating Dr. Bartlett's federally protected rights. Consequently, we conclude that Dr. Bartlett has met her burden of demonstrating entitlement to compensatory damages.
b. The $12,500 Award
The Board next argues that the district court erred in concluding that Dr. Bartlett is entitled to $12,500 in compensatory damages, representing $2,500 in fees paid for each of five bar examinations she took without accommodations she requested. Specifically, the Board argues the sum is erroneous because Dr. Bartlett (a) did not timely apply for accommodations in taking the June 1991 bar examination; (b) did not seek accommodations for the February 1992 bar examination; (c) submitted no evidence in support of her contention that she sought accommodations for the July 1992 bar examination; and (d) received accommodations on the July 1993 bar examination but nevertheless failed. We agree in part.
We review the method of calculation of damages de novo, see Wolff & Munier v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1009 (2d Cir. 1991), and the actual calculation of damages for clear error, see United States Naval Inst. v. Charter Communications, 936 F.2d 692, 697-98 (2d Cir. 1991). In holding the Board liable for Dr. Bartlett's bar examination expenses, the district court stated: "What is clear is that [Dr. Bartlett's] taking of the bar examination without the accommodations to which she was entitled under the law was a waste of her time and money. For the losses, [Dr. Bartlett] should be reimbursed." Bartlett, 970 F.Supp. at 1152. The court then awarded Dr. Bartlett compensatory damages for each of the five bar examinations she took. The court did not examine whether, for each bar examination, there was a denial of accommodations due to illegal discrimination. This was error as a matter of law. See Atkins v. New York City, 143 F.3d 100, 103 (2d Cir. 1998) ("To recover compensatory damages plaintiff must prove that his injuries were proximately caused by [illegal discrimination.]"). We therefore conclude that the Board must compensate Dr. Bartlett only for bar examination expenses incurred where the Board denied accommodations because of illegal discrimination. Thus, because Dr. Bartlett did not seek accommodations for the February 1992 bar examination, the Board is not liable for damages arising from its failure to accommodate. By contrast, the Board illegally denied Dr. Bartlett's timely request for accommodations in taking the February 1993 bar examination and, therefore, is liable for Dr. Bartlett's expenses incurred in connection with that examination. We cannot reach a conclusion on the award for the remaining three bar examinations because of the inadequacy of the district court's findings. Accordingly, we remand for findings of fact and a new damages calculation.
For reasons other than those articulated by the district court, we affirm the judgment that Dr. Bartlett is disabled within the meaning of the Americans with Disabilities Act and the Rehabilitation Act and thus was and is entitled to reasonable accommodations in taking the New York Bar Examination. Dr. Bartlett's cognitive impairment -- her difficulties in automatically decoding and processing the printed word -- limits her major life activities of learning and reading to a substantial degree. Reasonable accommodation of this disability will enable her to compete fairly with others in taking the examination, so that it will be her mastery of the legal skills and knowledge that the exam is designed to test -- and not her disability -- that determines whether or not she achieves a passing score. We vacate and remand for findings of fact and recalculation of compensatory damages due Dr. Bartlett in accordance with this decision.
Costs to the appellee.

* Honorable Eugene H. Nickerson, United States District Judge for the Eastern District of New York, sitting by designation

Friday, December 25, 2009

WNYC Radio Group Project: Come Up With Our Next Call-In

The Brian Lehrer show ( asking the public to tell them what to put on the show. I have copied a few of the comments to this question below. The overwhelming response is: court corruption needs to be discussed and exposed.

WNYC's request:
From time to time, we do open phones segments around a particular question or topic. What question would you like to hear our listeners answer in the first call-in segment of 2010? Suggest an open phones question below!


Gary from Upper Left Side
December 22, 2009 - 10:55AM

How about investigating Congressman Charlie Rangel?

William galison from manhattan
December 22, 2009 - 01:16PM

New York State government is rife with corruption. The New York Times describes New York as a "Failed State". Consider the indictments (and convictions) of high level politicians in the past year alone.

The most destructive corruption occurs in the Judiciary, where corrupt judges (and lawyers) break the rules they are sworn to obey, destroying lives and depriving the public of the fundamental right to due process.

Anyone who has ever tried to complain about judicial corruption will find that the "ethics oversight" committees for judges and lawyers are a total sham.

Likewise, complaints against misconduct by the District Attorney and Attorney General are buried and ignored.

Up to now, WNYC has ignored this huge problem. There has never been a call in show about Judicial or law enforcement corruption. A call-in show would be the beginning of accountability for crooked judges and lawyers.

This would not be a call-in from people unhappy with a judge's decision, or a lawyer's incompetence, but with violations of ethical and criminal laws and rules by judges and lawyers.

William galison from manhattan
December 22, 2009 - 01:18PM

The call-in question would be:

"What are your experiences with corrupt judges and lawyers who have violated the rules and laws to which they are bound?"

laura masonic from sussex County...NJ
December 22, 2009 - 04:14PM
Civil rights are not topics for entertainment alone.... why then are Adopted Adults deprived the right to their Original Birth Document..

When a Law was passed to protect adoptive parents privacy were no provisions made for the furure adults who were the babies of adoption, they also have a Civil right....NJ Legislators need to vote a bill presently in the Senate....

Terence Finnan from north of NYC
December 22, 2009 - 06:16PM

There are many pending lawsuits involving judicial corruption in Federal District Courts in NY and in the 2nd Circuit Court of Appeals in NYC, which cry out for exposure. This is something that cannot be ignored. Right now, the judicial corruption has harmed many and some have fought back in the Federal and State courts. If we don't expose this and fight back, who will help when judicial corruption has you as a target. Judicial corruption will be an issue in the coming campaign and the listeners could be informed early enough about the candidates will promise do about it. Knowledge is power for the voter. Judicial corruption will not go away, if cover our ears.

J anderson from New York City
December 22, 2009 - 06:47PM

Currently, many lawsuits involving judicial corruption are pending in Federal District Courts in NY and in the 2nd Circuit Court of Appeals in NYC. Wide ranging hearings concerning corruption are being held by the State Senate Judiciary Committee chaired by Senator Sampson. This is a critical matter facing voters as we head into an election year. WNYC should devote time and attention to this vital subject. Judicial corruption threatens to undermine the very foundation of our democracy.

R. Pollack from Riverhead, NY
December 22, 2009 - 11:37PM

As a female, disabled civil rights attorney for 27 years, I was beaten up in NYC Family Court by Court officers who gave over $60,000.00 in campaign funds to the NY Atty General Cuomo, whose office refused to investigate the case and moved to dismiss it. The question of widespread retaliation against attorneys and their clients who oppose discrimination by the Courts on a state and now federal level must be examined. On a federal level, my client's entire case file was destroyed this year BY THE COURT to cover up the criminal wrongdoing in his case.

This is documented and proven. The State's grievance committees have taken an active role in the cover up of the criminality by attacking attorney whistle blowers.

We have the documentation and witnesses. It is but a fraction of the nationwide corruption which will lead to the further destruction of our nation's legal system. It gives a black eye to those judge's and attorneys in the system who are genuine and just.

A light must be shined on the mechanics of the court system and the politics therein.. The Lycerne County PA scandal is the tip of the iceberg.

P. Allen from New York, NY
December 23, 2009 - 05:46AM

There is no point in having a call-in show about adoption laws, or any other laws, if the courts are corrupt and/or unethical and do not follow the law.

NYS is host to some of the worst judicial corruption in the country. Many ordinary citizens have been dragged into a kind of hell, by having to turn to, or been sued in, the NY courts.

In light of the fact that the NY Senate is in the middle of holding public hearings about corruption allegations against the NY agencies that are supposed to regulate attorney ethics and judge ethics, I suggest that WNYC have a call-in show about listeners' experiences and frustrations in trying to obtain an ethical and fair hearing in the NY Courts.

Frank Brady from Manhattan
December 23, 2009 - 07:44AM

If you google "corrupt courts" you'll be stunned to read about how corrupt the courts in New York State are. A call in with suggestions to clean up the federal and state courts in New York, and restore integrity to our treasured judicial branch of government, would provide a huge public service.

Carol Barbieri from Atlantic Highlands, NJ
December 23, 2009 - 08:23AM

New Jersey adoptees have been fighting for access to their original birth certificates for 30 years now. NJ Bill # A-752 has been stalled in the Assembly for two years (after being passed by the Senate). Assemblyman Joe Roberts refuses to post the bill for a hearing. My question is: "Isn't 30 years long enough to wait for adoptees to have access to their birth certificates?" The bill will give birthmothers an entire year to file a letter with the state that will tell an adoptee that she doesn't want contact. She can also have her name and address removed from the original birth certificate. This bill is fair to BOTH parties - the adoptee AND birthmother.

Elizabeth from Buffalo NY
December 23, 2009 - 09:37AM

I concur with those from downstate NY that the judicial branch of this government is severly I worked with them for 30 yrs and I am now a victim for the 2nd time, only because I reported a sexually harassing judge who was eventually removed, producing hatred among those judges and political connections to judges, who continue and demand judicial workplace sexual activities , and then I was compelled to endure years and years of employee, supervisor and court administrator retaliation....all while receiving continuous excellent evaluations!

My story relates criminal actions taken by the courts to quiet me from revealing the dirty and illegal secrets that the NY justice system employs.

Stunning and incredible are the expressions I must use to describe to you the criminal conduct employed by the NY Office State Of Court silence my facts and years of personal experiences relative to judicial syndicate behavior!

k patrick brady from Rochester WNY
December 23, 2009 - 10:03AM

Please shine your light on Judicial Corruption. New Yorks judiciary, including the Attorney General/Department of Law suborns and perpetuates the greatest consumer fraud of all; the MYTH of JUSTICE.

N.M. from New York
December 23, 2009 - 02:08PM

How about the rigging of child custody and divorce cases in the Ninth Judicial District Second Department in New York? Where cases are been rigged to eliminated the protective parent. The fact that some cases have been fixed in order to sexually exploited children. Why criminal complaints are been ignored in regard of children been involved in child porn in New York State, because the case was priviously fixed by a judge, the law guardian the offending party and the rest of the judicial gang?

Luisa from Long Island, NY
December 23, 2009 - 02:27PM

The sad thing is....The Court systems are being run by a bunch of criminals, who belong in JAIL..Laywers, Judges and the Politicians are committing egregious crimes every single day and the FBI, Attorney General's Office, and the U.S Attorney's Office are doing absolutely NOTHING about it..WHY is the question here? Please we need to expose these crimes.. and the MEDIA has to help us.. PLEASE HELP, HELP, HELP THESE INNOCENT VICTIMS!!!

galit Schloss from Bronx
December 23, 2009 - 02:37PM

According to the 2009 Report of the Commission on Judicial Conduct, there were 1,923 complaints filed in 2008. Yet of these complaints only 262 were investigated and of those, 173 were dismissed. In which about more than 90% of them get dismissed for allegedly being only a fee dispute, but they were not

1. in addition there are many more victims of this corruption Legal system who do not complain at all.

I am one of the thousands of litigants who never complaint to the C.J.C or to the Grieving Comity, because its will only caused me more harm.

i am involved for eight years in the court system , i am still not divorced, and i never had my day in Court, because judges and attorneys keep violating the laws, and my right for due process, the affect on my children and me is devastating, "America" knows about it but is quiet about it, we have no where to complaint about it.

laura masonic from sussex County...NJ
December 23, 2009 - 03:14PM

It is a breath of fresh air to read that so many of the populus feels dissed & without true representation.there are stories enough to fill books, but courts are corrupted by the "Good ole boy network" they protect each other at everyones peril...

Where do we find the HONEST judge who can't be corrupted...

The representatives we vote for are equally roped into the Get rich quick schemes..
the public beware we are pawns in the games of the powerfull, We who they reley on for their livelyhood..

Jackie from Upstate New York
December 23, 2009 - 03:46PM

I think one of the most serious problems facing New York citizens, right now, is corruption throughout the court system.

Therefore, my question would be "Have you or someone in your family been harmed by judicial corruption?"

Christine Anderson from Manhattan
December 23, 2009 - 06:41PM

Dear Brian:
Why not the subject of judicial corruption? It affects every aspect of our lives. There are others, like myself, who collided with the system, to our detriment, and I speak as a former court attorney. It really is time for someone with guts to at least make a start on a topic which has wreaked havoc with the lives of NYC citizens.

CA of Manhattan

Hans Ulrich from Brookyn
December 23, 2009 - 10:22PM

I would like to hear a discussion on the pervasive corruption that plagues the New York State Office of Court Administration.

Luisa from Long Island, NY
December 24, 2009 - 05:55AM

I can guarantee that if WNYC decides to open their phone lines with the Topic of NYS Court Corruption, the phone lines would ring off the wall...Try it and you will see that i'm right!!

My questions would be..

1) Why are these Judges, Powerful Lawyers and Politicians getting away with it all, even after these crimes have been reported to the proper Federal and State authorities?

2) How can a "Powerful Lawyer", who's committed Extortion, Coercion, Felony Level Sexual Abuse, Obstruction of JUSTICE and who's heard on an Audio-Video DVD tape admitting to his crimes get away with it all?

K from pendleton, ny
December 24, 2009 - 10:12AM

Court Corruption in New York is rampant, all of Will Galison statements about our Attorney Grievance, Attorney General, Sheriff, DA even our FEDS is true. Complaints filed in these agencies go in the circular file.

Any stalker can violate an innocent persons rights and use lawyers and judges, sheriffs, DA's to accomplish their insanity.

I have 4 cases that felonies have been committed, Fraud on the Court and many other charges and there is no one to call. Call another lawyer, the lawyers are doing it, why are the lawyers doing it, there have been statements that my stalker has a powerful position and the last one they did it to committed suicide, so I would guess they will cover it up they best they can, and where are the FEDS, not returning our calls, where is the AG to investigate the attorneys felonies, not returning our calls. Why hasn't the Attorney Grievance Committee started an investigation, they do not return calls.

Stalkers and psychopaths are ruling our courts.

K from pendleton, ny
December 24, 2009 - 10:34AM

for the stalkers in NY, just pass around fake psych paperwork on your victim.......

no one will believe them no matter what they say and there is no agency that investigates such a felony and call up their lawyers and tell all the fake stories you want so the lawyer ditches the case and makes it cost them.........stalkers rule the courts!

k from pendleton
December 24, 2009 - 05:20PM

Judicial Corruption-

Town of Pendleton can back date false charges to deny your rights as they did when they filed those false charges so then this travels to Erie County Court where they hold more false trials and rumor has it changed that paperwork this travel back to Niagara County Court where they again commit Fraud on the Court.

The AG states, just trying to discredit you!

try and get a lawyer, it will cost you, you have no rights soeth say The Senator! At least rumor has it it is my Senator! If it isn't Georgie you have some explaining to do.....

Gerald Galison from United States
December 24, 2009 - 05:29PM

The failed state (NY) addressing both the legislature and judiciary.

Randy Weinstein from Manhattan
December 24, 2009 - 09:59PM

"What are your experiences with corrupt judges and lawyers who have violated the rules and laws to which they are bound and how did the judicial system respond to your grievances?

mike t. grant from manhattan
December 25, 2009 - 09:39AM

I have information about N.Y.S. Courts corruption. The court kidnapped Kevin Dozier-06a1227 and charged him with being an associate of Bin Laden. the federal government was contacted and they have done nothing. Mr. Ron Kuby And Mr. Daniel M. Perez misrepresented the case.(7483-2003) Records show that the previously mentioned attorneys were paid bribe monies to keep quiet. it is common knowledge that Mr. ron Kuby and daniel M. perez are corrupt soldiers of this corrupt system. they pretend to represent their clients.

margarita walter from westchester county
December 25, 2009 - 12:02PM

Pervasive corruption continues as an accepted practice between attorneys and judges in Westchester County, typically in the matrimonial part. What can be done to protect the rights of inncoent litigants who suffer from the fallout of such behavior? Many litigants are denied their constitutional rights, are denied access to their children, suffer loss of their property and assets, among many other court sanctioned outcomes. Despite historcial attempts for corrective action, it appears to have been given "lip service" only with no comprehensive follow remedy.

Betsy Combier from New York City
December 25, 2009 - 12:17PM

Your listeners need to hear about the corruption of the Unified Court System, which is destroying lives, careers, and families.

I have put my Federal lawsuit out on the internet, and on my facebook page. Available here:
RICO in the New York State Unified Court System: How the Courts Steal Your Property, Your Children, and Try To Destroy Your Life...And How You Can Stop Them

We need to stop the RICO in the Unified Court System of New York State! Any media dedicated to public service must take notice of the infested courts and their personnel.

Tuesday, December 22, 2009

New York State Supreme Court Justice Thomas J. Spargo Goes To Jail

Former State Supreme Court Judge Thomas Spargo enters the federal courthouse in Albany for his sentencing Monday. (Photo by Tom Killips/The Record)

Former New York State Supreme Court Justice Thomas J. Spargo Sentenced for Attempted Extortion and Bribery

WASHINGTON, Dec. 21 /PRNewswire-USNewswire/ -- Former New York State Supreme Court Justice Thomas J. Spargo was sentenced today by U.S. District Judge Gary Sharpe (pictured at right) in Albany, N.Y., to 27 months in prison followed by two years of

supervised release for attempted extortion and bribery, Assistant Attorney General Lanny A. Breuer of the Criminal Division and Special Agent in Charge John F. Pikus of the FBI's Albany office announced.

A federal jury convicted Spargo, 66, on Aug. 27, 2009. Evidence introduced at trial showed that on Nov. 13, 2003, Spargo solicited a $10,000 payment from an attorney with cases pending before him in Ulster County, N.Y., while Spargo was serving as a state supreme court justice. The trial evidence showed that when the attorney declined to pay the money, Spargo increased the pressure to pay by a second solicitation communicated through an associate. Finally, according to evidence presented at trial, on Dec. 19, 2003, Spargo directly told the attorney in a telephone conversation that he and another judge close to him had been assigned to handle cases in Ulster County, including the attorney's personal divorce case. According to the evidence at trial, the attorney felt that if he did not pay the money, both the cases handled by his law firm and his interests in his personal divorce proceeding would be in jeopardy.

"Fair and impartial judgment by those entrusted to carry out the laws is the bedrock of our legal system. When those sworn to uphold the law violate it, they will be held accountable," said Assistant Attorney General Lanny A. Breuer. "We cannot and will not allow the public's faith in our legal system to be shaken by judicial corruption."

"The FBI wants to assure those who have been extorted by public officials that investigating such crimes is the highest priority of our agency. As our recent public corruption convictions illustrate, the FBI will continue to focus on corruption occurring in all branches of New York State government," said FBI Special Agent in Charge John F. Pikus.

State authorities separately removed Spargo from the bench before his trial and disbarred him after his conviction.

This case is being prosecuted by Senior Trial Attorney Richard C. Pilger and Trial Attorney M. Kendall Day of the Public Integrity Section. The case was investigated by the FBI's Albany Division.

SOURCE U.S. Department of Justice

Ex judge sentenced to prison
By Dave Canfield, Tuesday, December 22, 2009
The Record

ALBANY — Former state Supreme Court Justice Thomas J. Spargo was sentenced to more than two years in federal prison Monday for trying to extort money from attorneys with cases before him.

U.S. District Judge Gary L. Sharpe handed down a 27-month sentence to Spargo, a 66-year-old former part-time Troy corporation counsel convicted in August of attempted extortion and soliciting a bribe, both felonies. He used the leverage of his job to try to obtain $10,000 from an attorney in 2003 to offset legal fees he was incurring during a battle with the Commission on Judicial Conduct, which eventually recommended his removed from the bench.

“As a judge, there is nothing that is more reprehensible,” Sharpe said of Spargo’s crimes.

Spargo, a seasoned Republican election lawyer from East Berne, left the James T. Foley Courthouse on his own accord and must report to the custody of U.S. Marshals on Feb. 9. He arrived and left with attorney E. Stewart Jones, who gave Sharpe an impassioned address, requesting no jail time while acknowledging that such a sentence would be a radical departure from sentencing guidelines.

The sentence falls at the minimum of those guidelines, which Sharpe amended after taking issue with a finding in the pre-sentencing report. Federal prosecutors had requested the maximum jail time of 41 months and a fine of $75,000.

Sharpe, however, declined to require Spargo pay any fine beyond the mandatory $200 surcharge, saying its punitive value would be outweighed by the financial hardship it would cause his family.

There will be no appeal, Jones said.

Outside the courthouse, Spargo said he thought Sharpe was fair in his decision, but Jones interrupted him to protest the jail sentence for a man he said did much good in his time as an attorney.

“The justice system convicted him on the evidence … that was sufficient punishment for Tom,” he said.

Spargo was disbarred following his conviction, and Jones told Sharpe that sending him to jail would be a “barbaric” sentence.

“To what end, for what purpose?” Jones said in a raised voice in court. “Tom Spargo has lost his judgeship, his right to practice law. He’s never going to regain that privilege. He’s lost everything. He’s financially destitute.”

Jones called the crimes “a very small slice of an otherwise highly admirable life” and noted Spargo’s work representing the indigent.

Prosecutor Richard C. Pilger, however, told Sharpe that a message needs to be sent that corruption in a judge’s seat does not go unpunished, saying that without a legal system free of impropriety “nothing works.”

“As the judge I clerked for told me, a judge can influence things just by the tone of his voice,” he said in asking for a sentence that takes Spargo’s crimes “as seriously as it is possible for a court to take it.”

While Spargo reportedly solicited money from three Ulster County attorneys, it was Bruce Blatchy who contacted the Commission on Judicial Conduct, which was already investigating Spargo on an unrelated ethics matter. Blatchy testified that he felt things in Spargo’s courtroom would not go his way if he did not offer up the money.

Those circumstances, Sharpe said, outweighed other factors that might lean in Spargo’s favor.

“While the other factors are important, that one exceeds them all,” he said.

John Pikus, the FBI’s special agent-in-charge in Albany, said in a statement that such cases are a priority for the bureau, evidently referencing the recent conviction of former Senate Majority Leader Joseph L. Bruno — who will also be sentenced by Sharpe, in March.

“As our recent public corruption convictions illustrate, the FBI will continue to focus on corruption occurring in all branches of New York state government,” Pikus said.

Spargo sought the funds to offset more than $100,000 in legal fees he had incurred in battling the commission’s inquiry into his politicking during his election to Byrne town judge and whether or not it was proper for him, as a judge, to testify on behalf of President George Bush during the infamous Florida recount. It was a lengthy, expensive fight Jones said was indicative of Spargo’s nature but was ultimately unwise.

Spargo admitted as much outside the courthouse, saying he recognizes he took that battle too far.

“The result is where we are,” he said.

Dave Canfield can be reached at 270-1290 or by e-mail at

Ex-judge gets 27 months in prison
Posted at: 12/21/2009 11:30 AM
Updated at: 12/21/2009 4:42 PM
By: WNYT Staff

ALBANY - A former state Supreme Court justice was sentenced to 27 months in federal prison Monday afternoon.

Thomas Spargo was convicted last summer on attempted extortion and soliciting a bribe.

Spargo received the minimum sentence -- 27 months and two years supervised release. He could have face up to 20 years in prison.

The jury found that Spargo took a $10,000 payment from an attorney in Ulster County who had cases pending before him. According to evidence presented during the trial, the attorney felt that if he did not pay Spargo those cases would be in jeopardy.

The federal jury in Albany deliberated for two days in August before reaching a verdict.

Spargo has been free on bail since his conviction. He remains free now. He'll have to report to prison on Feb. 10.

Wednesday, December 16, 2009

RICO in the New York State Unified Court System

The judges and their colleagues in the New York State Unified Court System are operating under the umbrella of "absolute immunity" in order to rob and harass you and convert your property to their ownership. Dont fool yourself into thinking that anyone in the State legislature doesn't know this is happening, and wants to do anything about it. You just have to outsmart them all by documenting everything, like I did. I may not win my lawsuit against them in Federal Court, but I now have the intervenors/conspirators online for the public to see how it all works. Please share this information. Betsy Combier

RICO in the New York State Unified Court System: How the Courts Steal Your Property, Your Children, and Try To Destroy Your Life...And How You Can Stop Them. Part I

People are being victimized by the courts of America's "justice system" every day, often without knowing anything until it is too late, and you are left without your property, family member and/or child. Judges threaten lawyers - the people who are being paid by you to defend you and protect your interests - and make the Attorneys facing the Court do what "they" - the judges and their political partners - want, and work with the "fixer" to steal property, take children, and plunder estates for personal gain. I know what 'they' do, because when my church - Madison Avenue Presbyterian, ("MAPC") in New York City - came after me in 1998 after my mom's death, I was an innocent victim of a collusion so powerful, I almost died in the hospital on July 21 2006. However, I did survive, and I am now helping any person who is harassed/victimized/harmed by this conspiracy of harm in our nation's courts.
Fred Anderson
When my mother died during the night March 15-16 1998, I had no idea that my church, the New York City Presbytery, and the Judges and courts of New York State would collaborate on an eleven-year campaign to defame and harass me for researching their organized conspiracy to commit extortion and coercion and for being named, in my mom's Will, the beneficiary of my mother's apartment on the Upper East Side of Manhattan, New York City. The Surrogate's Court in New York City is located at 31 Chambers Street. The Public Administrator's office is on the fourth floor, while the Surrogate Judges - Interim Acting Judge Troy Webber and Judge Kristen Glen - are on the fifth floor of this building. Their jobs are to convert property from your ownership to theirs, and take whatever cash is available through altering Wills and/or outright theft of property. I call this a form of Court-supported eminent domain policy. Since 1998 I have been subjected to this gang, all of whom are now named in my Federal Lawsuit, and I have documented all of their actions and conversations. In New York State it is the law that anyone can tape anyone else without telling the person who is being taped, if you are in the conversation. When Mary Santamarina, the senior Attorney for the Surrogate Judge (Renee R. Roth) in the law department at 31 Chambers Street, started calling me up with lawyer Kenneth Wasserman, the man who has made all the errors for the past eleven years while carrying the burden of making the RICO work, I turned on my tape recorder. I guess you could say that the intervenors picked the wrong person to make into a victim. I may die before getting any relief, but I wont die a victim.

Santamarina and Wasserman threatened me, screamed at me, and tried their very best to alter my reality. I didnt fall for it. A man named "Bill Jorgenson" from Eliot Spitzer's office called me and did the same thing. I wouldn't fall for that either. But it wasnt easy, and when Judge Roth ordered my mother's last Will out of existence on July 21, 2006, my heart failed and I spent three days in the hospital as the doctors tried to get my heart back on track. Fortunately for me and you, the general public, they were successful, so that I can bring this story to the internet and, if something does happen to me, the people involved can be held accountable for setting up the RICO of the New York State Unified Court System.


MAPC was unionized when my mom and I started helping the building staff in 1994. However, the Pastor, Dr. Fred Anderson, was harassing the building staff in order to bust the Union, Local 32 B&J and remove the union from the church. Additionally, the Trustees of MAPC were engaged in using the church property to finance real estate deals for "political friends" (both members and non-members of the church) with Mr. Gregory Moundas of the law firm Proskauer Rose. A Partner at Proskauer, the late Stephen Rachow Kaye, was the husband of the Chief Judge of New York State, Judith Kaye, arguably the single most powerful person in the State of New York. This really is the perfect crime. Due to the Establishment Clause in our Constitution, there is a separation of church and state in America that works for some, but not others, in putting religious institutions above and outside of the law (whenever it suits "them"). My mom, Julia Taschereau, understood that the Church that she donated her life to was the perpetrator of theft, false claims, and crimes against the public, so she kept her volunteer job at MAPC for more than 49 years, telling me everything that was going on at 921 Madison Avenue, 7th floor.

Fred Anderson knew that I was hearing about what he and the Trustees were doing, and admitted at his deposition in 2001 that they decided to get rid of me as soon as my mother died or was incapacitated. In 1996 Fred and the Associate Pastor Charles ("Chuck") Amstein joined up with my twin sister Julia Danger ("Jill") to destroy the relationship that my mom and I had, which was a close mother-daughter loving friendship. Fred, Chuck, and Jill started writing my mom and calling her up to say that I was a terrorist, I was "crazy", and other such things. Instead of pulling my mom away from me and my four daughters these attacks made her angry. She silently despised Fred Anderson for his treatment of the staff at the Church and then of me.

You cannot understand this story unless you get to know the person my mother was. She was born on Valentine's Day February 14, 1914, in New York City, to newspaperman/journalist Samuel Strauss and Broadway theater angel Irene Rosenfield, both of whom were of German descent and they married in Des Moines, Iowa in 1903. Julia Strauss was their only child, and they raised her in New York City, Katonah New York, Paris and London. My mom was a people magnet. All her life she drew people to her with a genuine interest in this person's life and hopes for the future, and her caring nature. She had the lightest and biggest blue eyes I have ever seen. She gave parties at her apartment every couple of weeks for the church choir or for someone's birthday, and her apartment was always packed with people because everyone and anyone was always welcome, until the beatings from my sister Jill became extreme, and there were no parties when Jill arrived for her summer visits. My mom had a lawyer write a Will in November 1997 and she arranged for the signing ceremony to be at her apartment, after Jill threw her to the floor on July 25, 1997 and put her into the hospital emergency room.

When my mom died in her sleep after working at the Church all day (the night of March 15, 1998), Chuck told Fred that I had received my mother's apartment in the Will. They immediately contacted Guide One Insurance Company and an Attorney called "Kenneth Wasserman". They gave Mr. Wasserman the job of torturing me into giving up the apartment, and silencing me from talking - or writing - about Madison Avenue Presbyterian Church. Luckily for me, Wasserman turned out to be incompetent at implementing the corruption and fraud that the Church management, Presbytery, and their colleagues in the New York State Court System wanted to set up. On June 8, 2009, I filed a lawsuit in Federal court that was the end result of their 11-year scheme to rob me and harm me and my family. See below.

Kenneth T. Wasserman

Second Amended Complaint
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Exhibit 9
Exhibit 10
Exhibit 11
Exhibit 12
Exhibit 13

Without a Prayer For Relief: The NY State Supreme Court is Bought By Guide One Insurance Company and a Church, Madison Avenue Presbyterian

The bench trial (trial without jury) on the issues of the capacity of Julia Taschereau and undue influence began on August 4, 2009 after 11 years of fraud on the Surrogate Court by Julia Danger and her alleged Attorney Kenneth T. Wasserman, who was, in 1999, fraudulently designated the real person of interest in these proceedings by this Court. The judge, Troy K. Webber, was already being sued by me for locking me in her courtroom on April 1, 2009, and threatening me that I could not put the tape of the meeting on my website. I brought a sound engineer to the personnel office of the court on April 10, 2009, and we copied the two-hour proceedings, and then I made a transcript of the meeting. Troy Webber was appointed to the Interim position after Nora Anderson won the election for Manhattan Surrogate to replace Renee R. Roth, but then Anderson was indicted for fraud along with Attorney Seth Rubenstein (who, by the way, I saw in court with Troy Webber on June 9, 2009).

From 1998 to 2006 I was not fully aware of the conspiracy that was working to harm me, but in November 2005 I ("Proponent") found a handwritten note in the Surrogate's Court case file showing that Law Dept Attorney Mary Santamarina told Mr. Wasserman to remain in the Court of Judge Renee Roth, and she gave him the Roth calendar for 1999.

But Mary Santamarina and former Judge Renee Roth knew that these proceedings, the Probate Proceedings of the Will of Julia Taschereau, could not stay in the courtroom of Judge Renee Roth due to the conflict of interest with Proponent’s witness Henry “Hank” Sheinkopf, who knew my mother. My mom liked Hank a lot because she thought he was very smart and he was on TV, which made him a TV star in her eyes.

In Wasserman’s case of undue influence, he cited the collusion of Proponent with Henry Sheinkopf to obtain the services of an employee in his office who also happens to be an Attorney, Mr. Kenneth Brown.
I did not do this, and this was part of the fairytale that Wasserman has made up and the conspirators have followed and used against me since 1998. In 1999 Wasserman filed a lawsuit against me in New York State Supreme Court, saying that I converted money from the Samuel Strauss Trust (created in 1953 by my grandfather, for me and my sister Jill) that my mom lived on, to my own use. Only Jill and I had already closed the Trust at Banker's Trust, and signed a contract that there would be no liability for either me or Bankers Trust (and, I never had access to the Trust funds, anyway). Yet Wasserman was allowed to harass me from 1999 until October 1, 2009, when the Appellate Division, First Department, dismissed the case on my papers.

Starting in or around 2003 until 2006, as I explained to the Surrogate court on several occasions during the trial, Mr. Wasserman and Ms. Santamarina called her at home approximately once or twice a month, and they both yelled at her that she would win the Will contest but not the Banker's Trust case, made up by Wasserman, and she must immediately give her sister $375,000. Then the amount became $300,000, then $200,000. The threats were abusive. I knew that there was no Trust case, so I was able to withstand these attacks and say no. I knew that the only case over which the Surrogate Court had any jurisdiction was over the 1997 Will of Julia Taschereau, just as Judge Roth admitted in July 2006, five days after she ordered my mom's Will out of existence.

This Court handed Proponent and Wasserman alleged “certified” copies of the proceedings of April 1, 2009, during this trial just ending, and in these proceedings Judge Webber tells Proponent that she cannot tape Mr. Wasserman nor Mary Santamarina. New York State law allows a party to a conversation to tape another party if he/she is part of the conversation, without the other party knowing about it. On April 1, 2009 Interim Acting Surrogate Troy Webber locked Proponent Combier inside the Courtroom #509, and prevented Proponent’s two colleagues with her, from entering. Both colleagues were there simply to sit in the room and make sure that Proponent Combier did not have heart failure like she did in 2006 when Judge Roth ordered the 1997 Will of Julia Taschereau out of existence for about five days. A complaint was filed against this court and Court Officer Randy Dash with badge number 4689 with this court.

For this act and others Proponent sued Surrogate Webber and Mary Santamarina on June 8, 2009 in United States District Court, Southern District, and filed a Second Amended Complaint on November 24, 2009. Proponent alleged every day of trial that the trial forced upon her by Surrogate Webber without a jury was a fraud and was scheduled because Judge Webber wanted to retaliate against Proponent for suing her. Every day of trial Judge Webber insulted Proponent, complained about her being the “problem”, and explained all the reasons for Ms. Combier being a problem for the court. Herein is evidence of prejudice against Proponent by this Court and by Mr. Wasserman, an “Attorney of the Court” as a visitor described him. Every ruling and every insult by the Court to the character and actions of Proponent during the trial must be viewed through the prism of bias and prejudice against her, by the Manhattan Surrogate Court and Defendants Webber, Santamarina, Levitan, Wasserman and Danger. The appearance of impropriety and prejudice to harm Proponent and damage her reputation as a person of outstanding character and integrity is a constant fact in this case, and it was for this reason that Proponent reminded this court of the prejudice on a daily basis during trial.

The Surrogate's Court never showed any concern for the constant belittling of proponent, including an order from the bench never to say “thank you” to the Court for anything. The Court characterized the Temporary Letters of Testamentary issued by Roth on July 19, 2006, that gave the position of administrator of the estate to Public Administrator Ethel Griffin, saying that Julia Taschereau died “intestate” as “only a piece of paper”. The remaining estate, which Mr. Wasserman never wanted appraised and that he removed from the apartment in 1999 and took to Croton, could never have been given to the Public Administrator. The Will should have been probated in 2001. Additionally, we found out during the testimony of Kenneth Brown that he had never heard from Mr. Wasserman since his deposition in 1999, although he was the designated Successor Trustee. Mr. Wasserman insisted that he “could not find him”. Mr. Wasserman was allowed by this Court to prevent a trial and/or closure of these proceedings for at least nine years, in violation of Proponent’s Constitutional due process rights, rule of law, laches, estoppel, and her First, fifth, seventh, and 14th, amendment rights as stated in the Constitution. In this effort Proponent states, Surrogate's Court and Mr. Wasserman have failed to overcome the errors which have made this proceeding a fraud on the Unified Court System of New York State as well as on the people of New York State.

This Court frivolously stated from the bench and in the July 17 order that brought the trial to the calendar in this court, that the “brief delay” by Charles Amstein at Madison Avenue Presbyterian Church in returning Proponent’s mother’s ashes to her was just that, simply a brief delay, all the while knowing this is an actionable tort and a crime. Charles Amstein was sued in New York State Supreme Court in July 1999 for withholding Proponent’s ashes from her for eight days, and was found liable at two trials. This is a misdemeanor and also a violation of Public Health Law. Mr. Kenneth Wasserman told Mr. Amstein to withhold the ashes from Combier, and he gave the Appellate Division a secret memo about me that I found in the case file on March 15, 2005. I took a picture of the caption in Wasserman's document, where he described himself as "APPOINTMENT-RESPONDENT-PRO SE"

On August 4, 2009, the proceedings designed to invalidate the 1997 Will of Julia Taschereau, begun in 1998, climaxed with the filing of a Verification signed and notarized by Julia Danger on July 30, 2009. This Verification stated that the two-page document filed on February 16, 2000 with the title “Objections To Probate” was indeed truthful, and that objection No. FIRST (number one) had been withdrawn. Surrogate's court has no power to decide on the validity or falsehood of the “Objections To Probate” due to lack of jurisdiction, laches, and testimony of Julia Danger that nothing in her “Objections” is true or known by her, and everything was conveyed to her by third parties who spoke with her attorney, Kenneth T. Wasserman (“Wasserman”). Therefore, there can be no objections recognized by this Court, and the 1997 Will must be probated. The Objections are simply hearsay, made up by Wasserman, who has no personal knowledge of any facts concerning Julia Taschereau. Julia Danger, or "Jill", admitted she knew nothing about the Objections, 7 months after these had been filed in the Surrogate's Court.

This trial was not about Julia Taschereau, but about something reprehensible to decent minds: the crushing of truth, sabotage of evidence, and denial of due process rights. This issue that needs to be addressed by the legal system of this state and. Perhaps, of this country, is how the Rule of Law was pushed aside for eleven years to punish me for whistleblowing union busting, construction sabotage and fraud at my church, and fraud on the public by a large and powerful insurance company.

I filed the following in Surrogate's Court after the bench trial before Judge Webber was over:



Proponent objected to the acceptance of the Verification notarized by Kenneth T. Wasserman and signed by Julia Danger on July 30, 2009, as invalid due to its’ untimely validation and the admission of fraud by Julia Danger at her deposition in 2000 as well at trial. This Court’s acceptance of the “Objections To Probate” on the first day of trial is prejudicial to the rights of the Proponent and cannot be valid nor can the trial be seen as equitable due to laches. The “Doctrine of laches” is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with a lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Wooded Shores Property Owners Ass’n, Inc. v Matthews, 37 Ill.App.3d 334, 345 N.E.2d 186, 189. Laches also applies here as the neglect for an unreasonable and unexplained length of time under the circumstances permitting diligence, to do what in law should have been done. Lake Development Enterprises, Inc. v Kojetinsky, Mo.App. 410 S.W.2d 361, 367.
This Court has failed to address or remedy the unreasonable and unexplained delay of nine years in asserting rights which work to disadvantage Proponent. Kennedy v Denny, 237 Ky. 649, 36 S.W.2d 41, 42.
The conduct of this Court in collusion with Mr. Kenneth T. Wasserman (“Wasserman”) has placed Proponent in a situation where her rights are imperiled and her defenses embarrassed. This is the basis of laches. State v Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 19.

Laches requires an element of estoppel or neglect which has operated to prejudice a party, and this is the case in this proceeding. Estoppel by laches is a failure to do something which should be done or to claim or enforce a right at a proper time. Hutchinson v Kenney, C.C.A.N.C. 27 F2d 254, 256; namely, that Danger needed to file a Verification in 2000, not 2009.

In the proceedings pursuant to validating the 1997 Will of Julia Taschereau (“proceedings”) which has remained before this Court for eleven years, probate of the Will should have been considered in 2001 when all the 1404 depositions as well as the depositions of draftsman Kenneth Brown, Julia Danger, and Elizabeth Combier were completed. Proponent attempted to get the necessary relief at that time, but was prevented from enforcing her rights to the property left to her by her mother by Wasserman and this Court. Croyle v Croyle, 184 Md. 126, 40 A.2d 375, 379.

Estoppel in pais (equitable estoppel) rests upon the principle that when a person by his/her acts causes another to change his/her condition to his detriment, the person performing such acts is precluded from asserting her right which she otherwise might have had. Peplinski v Campbell, 37 Wash.2d 857, 226 P.2d 211, 213. Estoppel by laches is presented here and Julia Danger, the party estopped, had knowledge of the transaction to deny Proponent her property rights, yet mislead Proponent to her prejudice. Wisdom’s Adm’r v Sims, 284 Ky. 258, 144 S.W.2d 232, 235, 236.


The Surrogate Court Procedure Act (SCPA) grants full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires. SCPA §201, Const. Art. VI §12.

SCPA §203: The jurisdiction of the court is exercised by the commencement of a proceeding in the court. All proceedings are special proceedings and are commenced by filing a petition.

SCPA §303: All pleadings shall be verified.
The fact that Danger’s “Objections To Probate” were filed on or about February 16, 2000 in Surrogate’s Court and not verified until the first day of the trial, August 4, 2009 is a jurisdictional defect which required dismissal of the Objections. Danger never made a motion to correct this error, and therefore this Court never took jurisdiction over the objections nor Objectant, and this is a basis for rejecting the “Objections To Probate”. Red Roof Inn Inc. v Penninpede, SP 5454/07; District Court, Nassau County, 2007; this court has had no subject matter or individual jurisdiction over Danger to be given any power to rule on the proceedings cited herein. Pinner v Pinner, 33 N.C.App. 204, 234 S. E.2d 633
Proponent Combier made consistent references to the unverified “Objections To Probate” as fatally defective, but this Court took no notice. Thus this Court had no power to verify any “Objections To Probate” because the conditions essential to the exercise of jurisdiction have not been complied with. This court never took subject matter or personal jurisdiction over Julia Danger and her “Objections”.

The Surrogate Court lacks the power to determine the rights of persons not parties to a proceeding and over whom there is no jurisdiction. In re Crighton’s Estate, 20 NY2d 124, 281 NYS 2d 811, 228 N.E. 2d 799 (1967).

These proceedings should have been closed in or about 2001, and Mr. Wasserman should be sanctioned for neglecting his duties to this court by withholding the 1404 testimony as well as the deposition of Kenneth Brown for nine years.


The “Objections to Probate” were defective as there was no verification, and this was not corrected until August 4, 2009, however by then Danger had denied the truth of her objections.

Julia Danger told the Court that her mother was “fine”, “”competent” at all times, denying the truth of her own Objections. The statement from her deposition was read into the record: “My mother seemed capable of – she was herself. ..She was – her mind was fine". And, Jill added, there must have been undue influence, but I knew nothing about it.

Julia Danger refused to answer any questions about her evidence of “undue influence” because her lawyer told her about the evidence, she had no personal knowledge of anything. She testified that she found out about the threats of Proponent from her lawyer, who was told by Maryanne Weaver. This is hearsay. Maryanne Weaver is also the wife of John Weaver, the designated executor of the 1989 Will of Julia Taschereau. The testimony that neither Maryanne Weaver nor John Weaver knew this fact before the death of Julia Taschereau is not credible, and is not true.

After the deposition of Maryanne Weaver Proponent testified that she was concerned about the health of Mrs. Weaver, and called her up. Mrs. Weaver told her during this call that Mr. Wasserman had told her to make up the lie about how Proponent was going to sue her mother, and that was why she started shaking at her deposition. She knew, she told Proponent, that this was not true testimony. Mr. Wasserman was creating a fraud.

The Objections To Probate are, therefore, hearsay and must be stricken from the record. The only part of Danger’s testimony that is believable is that she never heard anything about undue influence nor did she ever believe that her mother was not of sound mind. She “knew” about Proponent’s threats about moving to New Jersey and leaving Julia Taschereau alone, from her lawyer, Mr. Wasserman, who spoke to Maryanne Weaver about it.


(A)All the witnesses at trial testified in court to the alertness, and full capacity of Julia Taschereau at all times. Virginia De Bono remembers seeing her the day she died, and had conversations with her at Madison Avenue Presbyterian Church the day that Julia Taschereau died, March 15, 1998. Mrs. De Bono gave Julia Taschereau the money for the concert that day, showing that she was capable of handling money and that the church and the 300+ people who attended that concert saw her handle the admission fees as well.

(B) Ann Connor said that Julia Taschereau was always “chipper as a cracker”, meaning that she never observed any change in the way Julia Taschereau acted on her job or with her friends. Mrs. Connor and all the other witnesses stated that Julia Taschereau was always at her volunteer position at the church, “every day”.

(C) Priscilla McOstrich testified that she never saw Julia confused about anyone’s name, or any information. Scott Vanos, Mary Hanley, Hank Sheinkopf, Kenneth Brown, and Charles Amstein never saw Julia act strangely or with any confusion about who she was or where she was. Mrs. De Bono said that Julia Taschereau was a strong person mentally and knew what she wanted.

(D) Diane Stennett, Julia Taschereau’s home care aide from November 4, 1997 until the end of December 1997 saw Julia Taschereau doing her work and never saw any lack of capacity. In fact, her testimony is that Julia Taschereau didn’t just ask her to be a witness to the signing of the Will on November 21, 1997, but demanded it:

Page 19 of the July 29, 1998 deposition of Ms. Stennett was read into the record and here it is:

Q: Did Mrs. Taschereau ever speak with you about a Will?
A: Yes
Q: When was the first time that she spoke to you about a will?
A: I think it was about three or four days prior. I know it was like this week, and the other week was signing. She said to me that – she’s asking me if I could be a witness on her Will, and I jokingly said to her, “No”, to see her reaction, and she said, “Why? And I said, “Because I’m too young”, and she said, “Oh no you’re not, and I want you to be a witness on the Will. “ I said, “No”. She said, “Yes, If you cant do it, then I’ll have to make you do it” So I said, “Okay, I guess you win this one”. We were just joking about it.

Ms. Stennett testified that she observed Julia Taschereau during these moths always understanding what was going on and that Julia Taschereau was always alet. (p. 37, deposition 1404)

(E) the hospital records submitted to this court from Lenox Hill Hospital and De Witt nursing Care show that Julia Taschereau was always “alert”, conversing with people, and mentally sound.

Proponent has met her burden proving sound mind and capacity on the part of Julia Taschereau throughout the years 1995-1998.


(A)Julia Taschereau was never of “unsound mind”. The law states that unsound mind exists when there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life.

Undue influence is that persuasion that overpowers the dominated party’s free will or judgment that he or she cannot act intelligently and voluntarily, but acts, instead, subject to the Will or purposes of the dominating party.

There is no evidence whatsoever by any witness at trial to any domination over Julia Taschereau by Proponent. In fact, this would have been impossible, according to all the testimony.

Priscilla McOstrich, a person who was personal friends with Julia Taschereau for more than 40 years at the time of Julia’s death in 1998, observed Julia at parties at Julia Taschereau’s apartment in 1997, especially November 2, 1997. Julia spoke to Priscilla about her apartment and how she did not want Jill Danger to come and stay. Julia told Priscilla that Jill was stealing items from her apartment, and that she was afraid of her daughter Jill, not Betsy. These types of conversations took place three weeks before she signed her will in front of three witnesses and her draftsman, Kenneth Brown.

Julia Danger “knew” that there “must have been” some undue influence over her mother. But Julia Danger never verified her Objections until the first day of trial on August 4, 2009, and even after she verified her objections and the Court fraudulently accepted them, she still never gave any instance of undue influence over the Will and her mother by Proponent.


(A)So, why was Jill Danger removed from the 1997 Will, deliberately, by Julia Taschereau?

Robert Siegel was asked by Julia Taschereau to become the successor Trustee of a Trust in name only as a “legal shield” against Julia Danger’s constant attacks against Julia Taschereau. Mr. Siegel’s testimony is so powerful and credible that Mr. Wasserman interrupted him and made him an interested witness after he started his testimony at trial. Then Mr. Wasserman lied about the Trust set up with Julia Taschereau, Elizabeth Combier and Robert Siegel and stated that it was still open! Proponent objected and asked for proof, which Mr. Wasserman could not produce. The trust ended at the death of Julia Taschereau in 1998. It was a revocable Trust, and Julia Taschereau knew this and could have revoked it at any time. Julia Taschereau also had the telephone number of Kenneth Brown, and could have changed her Will signed on Nov. 21, 1997 if she had wanted to.

On February 14, 1996, Robert Siegel was told by General Elm Properties that Julia Taschereau’s maintenance was in arrears. Mr. Siegal spoke with Julia Taschereau at a meeting in her apartment, at which Julia Taschereau asked for help with her finances as well as with Jill Danger’s abuse. As a friend, Mr. Siegel agreed, and never received any money at all.

Soon after that Julia Taschereau asked proponent to help her with her checks and her money, and told her that she had signed a Power of Attorney and wanted Proponent to assist her. Proponent did not want to take on this responsibility, as she has four children and a Thheater company for disabled children, but Julia Taschereau insisted. The testimony of Charles Amstein and Maryanne Weaver support the fact that Julia Taschereau wanted her daughter Betsy Combier to take the Power of Attorney so that she could get her finances in order. Starting in 1996 Proponent kept records of every check signed by her in a log that remained at Julia Taschereau’s apartment. All notations were made contemporaneously, and Julia Taschereau approved every entry.

Maryanne Weaver also stated that Julia Danger was demanding money from Julia Taschereau. But Julia Taschereau called Julia Danger’s financial representative in 1996, Dee Osborne, and asked her how much money Julia Danger had at that time. Ms. Osborne said “more that $200,000.”

In 1996 Julia Danger wrote a letter to her mother Julia Taschereau describing how “Chuck, Tita, Gary, everyone…thought Betsy needed to be in a mental institution” On July 14, 1996, Chuck Amstein called up Proponent and told her that she disgusted him. This call and Julia Danger’s letter were the two events which started Julia Taschereau not wanting Julia Danger near her. Julia Taschereau’s fear of Julia Danger had nothing to do with Proponent, but this was a reaction to Julia Danger’s increasingly hostile and abusive behavior in 1996 and in 1997 towards her mother.

In July 1997 Julia Taschereau was harmed while Julia Danger and her children were staying with Julia Taschereau. But Julia Danger flew to California on July 26, 1997 anyway, leaving Julia Taschereau on the sofa in pain. Anne Connor called Proponent who took Julia Taschereau to Lenox Hill Hospital. Upon information and belief, the hospital records on that day, which Lenox Hill never submitted to this court, show that Julia Taschereau had an accident at the hands of her daughter and/or her grandchildren.

After this injury, Julia Taschereau called people to do a Will for her and made the Will happen according to her wishes, not those of proponent.

The fraud on this court made up by Mr. Wasserman that there was undue influence over Julia Taschereau by her daughter Elizabeth Combier has failed, there is no evidence or testimony to these alleged acts. The deceit of nine years on this court by Kenneth Wasserman must stop.

A request from Betsy Combier:

A current update of this story occurred on Sunday, August 16, 2009, when a friend of a friend called me at approximately 2:10PM, a Mr. John Libecci. Mr. Libecci is, I understand, a private investigator who knows a friend of mine socially. I asked whether he could help me find out some information involving my federal court case filed in United States District court on June 8, 2009 involving the Surrogate Court and my mother's Will. After I told him about the property being taken by the court, he told me that the court never takes property without a reason; after I told him that the Will was not probated for eleven years, Mr. Libecci told me that "obviously the Will was not done right", and said that he worked for the Courts and the Judges, would not tell me what he did for the Court and the judges, then hung up. If anyone has information about Mr. John Libecci please email me at

You may send me any information anonymously.