A Review of "Deliberate Indifference"

Childress, et al v. Midvale City, et al - U.S. 10th Circuit Court of Appeals 

December 5, 2011 - Practice Areas: Civil Rights, Criminal Law, Government & Administrative Law, Injury Law

Plaintiffs Osler and Georgia Childress appealed a district court's order that dismissed their 42 U.S.C 1983 medical-indifference case against Defendant Robert Harms. In 2006, Mr. Childress was staying at a hotel in Midvale, Utah when a motel clerk saw him staggering around his room and running into things. She called police and reported that an intoxicated guest was causing a commotion. Police arrived on the scene and arrested him. Upon Mr. Childress's arrival at the jail, nurses Robert Harms and Joel Smith examined him while he was handcuffed to a gurney. Mr. Childress denied drinking and answered questions about his military duties without difficulty, although his speech was slightly slurred. Authorities would later learn that Mr. Childress has suffered a cerebellar stroke while in custody which was originally dismissed as intoxication. The district court determined that Nurse Harms merely misdiagnosed Mr. Childress and dismissed his claims by summary judgment. On appeal, Mr. Childress argued that the district court "confuse[d] knowledge of harm with knowledge of the risk of harm." The Tenth Circuit concluded that Mr. Childress failed to establish the subjective component of "deliberate indifference," and as such, summary judgment was appropriately entered on his claim. (Docket: 11-4038)

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FILED

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
OSLER LORAYMOND CHILDRESS;
GEORGIA CHILDRESS,
Plaintiffs-Appellants,
v.
ROBERT HARMS,
Defendant-Appellee,
and
MIDVALE CITY; SALT LAKE COUNTY; KRESDON BENNETT;
KEN YURGELSON; NORM BETTRIDGE,
Defendants.
No. 11-4038
(D.C. No. 2:09-CV-00500-DAK)
(D. Utah)
ORDER AND JUDGMENT
*
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).  The case is therefore ordered submitted without oral argument.  This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel.  It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  In this 42 U.S.C. § 1983 medical-indifference case, Plaintiffs Osler and Georgia Childress appeal from a district court order that granted Defendant Robert Harms’s motion for summary judgment.  We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
BACKGROUND

On May 16, 2006, Mr. Childress was staying at a motel in Midvale, Utah.When a motel clerk saw him staggering around his room and running into things, she called police and reported that an intoxicated guest was causing a commotion.Police and paramedics arrived.  Inside the motel room they observed a partially consumed container of beer and Mr. Childress, who was unable to stand and was slurring his speech.  The paramedics concluded that Mr. Childress was drunk.
The police smelled alcohol on his breath and determined that he was so intoxicated that he was a danger to himself.  They placed him under arrest and transported him to the Salt Lake County Jail.
Upon Mr. Childress’s arrival at the jail, nurses Robert Harms and Joel Smith examined him while he was handcuffed to a gurney.  Mr. Childress denied drinking and answered questions about his military duties without difficulty, although his speech was slightly slurred.  Nurse Harms smelled alcohol on. In his brief, Defendant cites a number of depositions that are not in the appendix before this court.  Although he has attached the depositions to his brief, he has not sought to enlarge the record.  See 10th Cir. R. 30.2.  Consequently, we do not consider those depositions. Mr. Childress’s breath, and had been told by a police officer that he was under the influence.  A brief neurological examination revealed that Mr. Childress’s pupils and grip strength were bilaterally equal.  Nurse Harms recorded his vital signs and Glasgow Coma Score (GCS), and noted Mr. Childress’s complaints of dizziness and ringing in his ears.  Both nurses agreed that Mr. Childress was
intoxicated.
He was placed in a holding cell, where his vital signs and GCS were measured at least four times during the ensuing six hours.  When Nurse Harms checked on Mr. Childress at 3:00 a.m., he noted his blood pressure had gone up, and he gave Mr. Childress some Gatorade to rehydrate himself.  At 4:55 a.m., Nurse Harms re-checked Mr. Childress, and noted he was sitting up, but was confused and still slurring his speech.  Nurse Harms “attributed [it] to alcohol,” which “was what he came in for.”  Aplt. App. at 45-46.
At roughly 6:00 a.m., Mr. Childress fell down in his cell and was transported to the hospital.  There, medical providers determined that he had suffered a cerebellar stroke. Mr. Childress filed suit in Utah state court against Midvale City, Salt Lake County, and the Midvale police officers who responded to his motel room.  He alleged that the defendants violated the Utah and federal constitutions by being

The GCS measurement of “impaired consciousness” utilizes “motor responsiveness, verbal performance, and eye opening.”  Stedman’s Medical Dictionary 1596 (27th ed. 2000).
deliberately indifferent to his serious medical needs.  The court granted summary judgment to all the defendants except officer Kresdon Bennett, who had transported Mr. Childress to the jail, and it permitted Mr. Childress to amend his complaint to add Nurse Harms as a defendant.
During his deposition, Nurse Harms testified that the symptoms of a stroke include hemispheric drooping of the face, slurred speech, dizziness, limping, neurological deficits, and elevated blood pressure.  He further stated that ringing of the ears indicates a neurological problem.  Regarding his initial examination of Mr. Childress, Nurse Harms testified that he performed no tests to determine
whether Mr. Childress had suffered or was suffering a stroke.  Aplt. App. at 33.
It was not until after Mr. Childress fell over and was sent to the hospital that Nurse Harms began to think that something more than intoxication was involved, possibly a head injury from falling.  Id. at 55.
The case was removed to federal court, where Nurse Harms obtained summary judgment and officer Bennett obtained a defense jury verdict.Mr. Childress now appeals from the summary judgment in favor of Nurse Harms.

DISCUSSION

Summary Judgment  Standards
“We review summary judgment decisions de novo, applying the same legal standard as the district court.”  Willis v. Bender, 596 F.3d 1244, 1253 (10th Cir. 2010) (quotation omitted).  Summary judgment should be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.  Fed. R. Civ. P. 56(c)(2).  This standard requires that “[w]e view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party.”  Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1310 (10th Cir. 2006).

Deliberate Indifference
“Under the Fourteenth Amendment due process clause, pretrial detainees are entitled to the degree of protection against denial of medical attention which applies to convicted inmates under the Eighth Amendment.”  Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (ellipses and quotation omitted).  “A prison official’s deliberate indifference to an inmate’s serious medical needs is a
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.”  Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
Deliberate indifference “involves both an objective and a subjective component.”  Id. (quotation omitted).  For the objective component, a prisoner must provide “evidence that the deprivation at issue was in fact sufficiently serious.”  Id. (quotation omitted).  The subjective component requires “evidence of the prison official’s culpable state of mind,” which may be fulfilled by showing that the official “[knew] of and disregard[ed] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must also draw the inference.”  Id. (brackets and quotation omitted).  This “standard lies somewhere between the poles of negligence at one end and purpose or knowledge at the other.”  Id. at 752 (quotation omitted).  Nurse Harms concedes that Mr. Childress has established the objective component of the deliberate-indifference test.  Thus, this case turns on the subjective component.
The district court determined that Nurse Harms merely misdiagnosed Mr. Childress, and did not
[draw] the inference that would indicate a substantial risk of harm.Although Nurse Harms recognized the possible symptoms of a stroke in Mr. Childress, those symptoms were also common to alcohol
intoxication.  Based on the evaluation of Mr. Childress’s pupil size and grip strength, Nurse Harms and Nurse Smith ruled out the likelihood of a stroke.
Aplt. App. at 9.
Mr. Childress argues that the district court “confuse[d] knowledge of harm with knowledge of the risk of harm.”  Aplt. Br. at 6.  He contends that Nurse Harms knew that he “was presenting signs of a stroke” “but did nothing to confirm or rule out [a] stroke.”  Id.  This contention fails for two reasons.
First, the record does not support it.  Nurse Harms testified that he knew the symptoms of stroke; he did not testify that he recognized Mr. Childress was exhibiting stroke symptoms.  Indeed, Nurse Harms repeatedly testified that he attributed Mr. Childress’s symptoms to intoxication, and he maintained that view until Mr. Childress fell down and was taken to the hospital.
Second, whether Nurse Harms should have done more to diagnose the source of Mr. Childress’s symptoms is a question of negligence.  But “negligent diagnosis or treatment of a medical condition does not constitute a medical wrong under the Eighth Amendment.”  Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (brackets and quotation omitted); see also Self v. Crum, 439 F.3d
1227, 1232 (10th Cir. 2006) (“The Eighth Amendment’s prohibition on cruel and unusual punishment is not violated when a [medical provider] simply resolves the question whether additional diagnostic techniques or forms of treatment is indicated.” (quotation omitted)).  Rather, there must be “an extraordinary degree of neglect.”  Self, 439 F.3d at 1232.  In other words, “the need for additional treatment or referral to a medical specialist [must be] obvious.”  Id.  But
Mr. Childress has provided absolutely no evidence that his symptoms obviously indicated a stroke, rather than intoxication.  The only evidence in the record is that Nurse Harms knew that Mr. Childress was brought in due to intoxication, he could smell alcohol on his breath, and he concluded—along with Nurse Smith—that Mr. Childress was in fact intoxicated.
Moreover, Nurse Harms interviewed Mr. Childress, checked his vital signs, measured his GCS, and monitored him in the holding cell.  When Mr. Childress fell down, Nurse Harms was involved in the decision to promptly send him to the hospital.  Although doctors at the hospital ultimately determined that Mr. Childress had suffered a stroke, “our subjective inquiry is limited to consideration of the [healthcare provider’s] knowledge at the time he prescribed treatment for the symptoms presented, not to the ultimate treatment necessary.”
Id. at 1233.  Nothing indicates that the level of care provided by Nurse Harms was inconsistent with the symptoms Mr. Childress presented.  Nor is there any evidence of actual knowledge or recklessness by Nurse Harms.
Mr. Childress’s reliance on Pimentel v. Deboo, 411 F. Supp. 2d 118 (D. Conn. 2006) is misplaced.  Unlike Mr. Childress’s case, there was no issue of intoxication masking the prisoner’s stroke symptoms.  Moreover, in Pimentel the medical providers ignored the prisoner’s repeated requests for medical care over a five-day period.  Here, Mr. Childress was not denied care, but rather, was
regularly monitored and examined before being taken to the hospital—all of which occurred within a roughly six-hour period.
Because Mr. Childress has failed to establish the subjective component of deliberate indifference, summary judgment was appropriately entered on his § 1983 claim.

State Law Claim
Article I, section 9 of the Utah Constitution states that “[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor.”  “[T]his provision applies where a prisoner shows that a prison employee was deliberately indifferent to the prisoner’s medical needs or subjected him to clearly excessive or deficient or unjustified treatment.”  State v. M.L.C., 933 P.2d 380, 385
(Utah 1997) (brackets and quotation).
To meet this standard, the plaintiff must show that (1) “the risk of harm was serious”; (2) the “risk was obvious and known to the defendant[ ]”; and (3) there was no reasonable justification for the defendant’s actions.  Dexter v. Bosko, 184 P.3d 592, 598 (Utah 2008).  Mr. Childress asserts that a jury should be permitted to determine whether Nurse Harms acted reasonably in “assum[ing]
that Mr. Childress was merely drunk.”  Aplt. Br. at 7.  But given the evidence in this case, and for the same reasons discussed above regarding Mr. Childress’s § 1983 claim, no reasonable jury could return a verdict in his favor on his state-law claim.  Thus, summary judgment was appropriate.

CONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge

A Parent's Right To Counsel In Custody Cases - Dr. McKay Again

Herbert L. v Maria L.

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[*1] Herbert L. v Maria L. 2011 NY Slip Op 51350(U) Decided on July 15, 2011 Supreme Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. 

Decided on July 15, 2011 
Supreme Court, Westchester County 
Herbert L., Plaintiff, 
against
Maria L., Defendant. 
26673/08 
 
Counsel for Plaintiff 
Nancy Chemtob, Esq. 
3 East 54th Street 
New York, New York 10022 

Counsel for Defendant 
Sophia L. Trott, Esq. 
9 West Prospect Avenue, Suite 208 
Mount Vernon, New York 10550 

Law Guardian 
Therese R. Malach, Esq. 
470 Mamaroneck Avenue 
White Plains, New York 10605 
 
Colleen D. Duffy, J.

A trial, which has been scheduled since early 2011, is set to commence on July 18, 2011, in this 2008 matrimonial proceeding, on the open issues of custody and visitation. All other issues have been settled by stipulation between the parties.

On June 17, 2011, Defendant wife, Maria L., filed an application seeking appointment of legal counsel, pursuant to Section 722 of Article 18-B of the County Law. Defendant specifically requests that her current private counsel, Sophia L. Trott, Esq., be appointed.

On July 5, 2011, Plaintiff husband, Herbert L., filed an Affidavit in Response to Defendant's motion, in which he neither consents nor opposes Defendant's motion.[FN1] [*2]

Therese R. Malach, Esq., the Attorney for the children of this marriage, L. (DOB: 9/3/99), and R. (DOB: 9/3/99) (the "Subject Children"), submitted an affirmation, dated July 11, 2011, in support of Defendant's motion.

For the reasons set forth below, Defendant's motion is granted, pursuant to Section 722 of Article 18-B of the County Law and Section 262(a) of the Family Court Act. Sophia L. Trott, Esq. is appointed as counsel for Defendant.

In support of her application, Defendant submitted her affirmation averring that she cannot afford to pay a private attorney, that she has not worked since November 2010, when the two children of the marriage were removed from her custody by this Court,[FN2] and that her income was less than $17,000.00 for each of the preceding two years. Defendant submitted tax returns showing adjusted gross income of $53.00 in 2010 and -$28,482.00 in 2009. Defendant also averred that she has had to use her credit cards to pay for the legal fees which she has paid to her attorney and has borrowed significant sums of money from family members to pay counsel fees.

In addition, the Attorney for the Children averred that, while she is unfamiliar with the Defendant's finances, the Defendant has failed to pay her the sums due from her representation of the children in this matter, in an amount totalling $5,404.62.

The Attorney for the Children also represented that Subject Children support the mother's motion so that, in their view, their mother can be on equal footing with their father. The Attorney for the Children also indicated her own belief that the Subject Children's trust and faith in the system and future cooperation with the outcome of the trial will be increased if their mother is represented by counsel.

Based on the circumstances of this case and the finances of the Defendant, the Court finds that an assignment of counsel is appropriate. Defendant has made a sufficient showing that she does not currently have funds with which to pay an attorney. She has not worked since November 2010, has little or no income, has incurred credit card debt and borrowed from family members to pay her own counsel fees, and has failed to pay her share of the fees for the Attorney for the Children. See Borkowski v. Borkowski, 90 Misc 2d 957, 958 (Sup. Ct., Steuben Co. 1977)(court in a matrimonial action may assign counsel for purposes of custody issues).

The Court notes that, pursuant to Section 262(a)(v) of the Family Court Act, an indigent parent seeking custody or contesting a substantial infringement of her right to custody has a right to counsel. Such a litigant should be entitled to no less right where custody issues are fought at the Supreme Court level. See The Matrimonial Commission of the State of New York, 2007 Report to the Chief Judge of the State of New York, 27 Pace L. Rev. 987, *1073 (2007) ("there appears to be no justifiable [*3]rationale for depriving litigants in the Supreme Court of the right to counsel enjoyed by those appearing in Family Court").

The fundamental interests underlying FCA § 262(a) apply with equal force in Supreme Court as the Supreme Court has the authority to exercise every power of the Family Court. Borkowski, 90 Misc 2d 958, citing Kagen v. Kagen, 21 NY2d 532 (1968). Section 262(a) of the FCA was enacted to avoid "the infringement of fundamental interests and rights" for which the New York State Legislature recognized that "counsel is often indispensable to a practical realization of due process of law and may be helpful to the court in making reasoned determinations of fact and proper orders of disposition." FCA § 261.

Although the Court could bifurcate the matrimonial proceeding and refer the custody issue to Family Court where the right to assigned counsel is unequivocal, any referral to Family Court will result in unnecessary delay. This case is ready for trial and has been pending since 2008. At least four other judges previously have presided over this matrimonial matter and this Court has continued on the case despite assignment to a Supreme Court in the First Department in order to avoid a further delay of this matter.

Moreover, the Subject Children are entitled to finality in this matter. Referring the matter to Family Court just so that Defendant could be granted assigned counsel, when all these reasons compel this Court to retain the case, would be unjust. See Borkowski at 958-59 (Supreme Court must weigh numerous factors in determining whether to refer to Family Court; counsel for parent can be available in either court and need not be a factor).

For these reasons, the Court finds that a parent's right to counsel in custody matters in the Family Court pursuant to Section 262(a)(v) of the Family Court Act is equally applicable to such cases pending in Supreme Court. Borkowski at 958.

Other than Borkowski, the only other published decision in New York specifically addressing whether the Supreme Court may assign counsel for custody issues in a matrimonial action is inapposite. See McGee v. McGee, 180 Misc 2d 575, 581 (Sup. Ct., Suffolk Co. 1999).

In McGee, the court gave lip service to the constitutional powers granted to the Supreme Court "to exercise every power of the Family Court," 180 Misc 2d at 582, but, inexplicably, declined to so exercise such power with respect to FCA § 262.[FN3]Id. at 582.

Here, as noted above, this facts of this case dictate a different determination with respect to the assignment of counsel than that reached in McGee. As the evidence at the hearing on the Order to Show Cause indicated, the contentious nature of the proceeding and the custody issues presented here - - involving mental health and severe parental alienation allegations - - put the Subject Children at severe risk and require an expeditious resolution. [*4]

Thus, the nature of this proceeding mandates that each party is properly represented by counsel who is familiar with the proceeding and can proceed forthwith on the scheduled trial date. Denial of Defendant's motion would only result in further delay and injustice to the parties and the Subject Children.[FN4] Matter of M.D. v. T.D., 11 Misc 3d 1074A, 2006 NY Slip Op. 50557U, *3 n.1 (Fam. Ct., Westchester Co. 2006) (need for finality and permanency in life of subject child as well as increased costs and judicial efficiency and economy dictate that delay of the trial would be unjust).

Defendant's current attorney, Sophia L. Trott, Esq., is familiar with all of the facts and circumstances of this case. In light of the upcoming trial, scheduled to start in three days, and in light of the Court's belief that a swift resolution to these custody matters is in the best interests of the Subject Children, Ms. Trott's assignment as counsel for Defendant is warranted. Id.

For all of the reasons set forth above, in the interests of justice, this Court appoints Sophia L. Trott, Esq., as counsel for Defendant pursuant to Article 18-B of the County Law. This scope of this assignment is for Defendant to be represented for the purposes of the proceeding, commencing on July 18, 2011, and any concomitant settlement between the parties related to same. 

Dated: White Plains, New York

July 15, 2011

E N T E R:

_____________________________

Hon. Colleen D. Duffy

Justice of the Supreme Court Footnotes 

Footnote 1: Plaintiff does, however, contend that Defendant has not provided sufficient support for her application. See Affidavit of Herbert L., sworn to July 1, 2011, at ¶ 8. 

Footnote 2: On November 9, 2010, at a hearing on an emergency Order to Show Cause by Plaintiff, the Court awarded Plaintiff temporary sole legal and physical custody of the children, having found, based on the evidence presented at the hearing - - testimony by Dr. Kathleen McKay, Ph.D., and testimony of the Defendant herself - - that the children were in imminent danger in the custody of Defendant, in that the Defendant was perpetuating a custodial arrangement that was overtly hostile to Plaintiff and was supporting the alienation of affections of the Subject Children toward the Plaintiff to the severe emotional detriment of the children. Defendant also was held in contempt of court by this Court on that date, due to her outbursts and profanity in court, despite having been warned to cease such behavior. 

Footnote 3: In McGee, the court declined to "assume to itself the empowerment of FCA § 262" determining that to do so in that case "would be inappropriate." Id. at 582. In fact, the McGee court was not "assuming a power" but rather declining to exercise an existing power. The McGee court's decision to refrain from exercising its constitutionally granted authority is not controlling on this court. The Court also notes that no other published decision in New York has cited to McGee. 

Footnote 4: Domestic Relations Law § 237 provides that a court can require one spouse to pay for the attorneys fees of the other spouse in a matrimonial action, including with respect to issues of custody and visitation, where justice requires and considering the circumstances of the case and the parties. 

Here, the circumstances of this case indicate that such an order would not serve the interests of justice. The Court notes that the primary custody issue in this matrimonial proceeding emanated from the Plaintiff's contentions, which were supported by Dr. McKay, the forensic evaluator, at the November 2010 hearing, that the Defendant has created an overtly hostile environment which has alienated the Subject Children's affection for Defendant. 

Under these circumstances, and, noting that the case has dragged on for over three years during which time Plaintiff husband has been responsible for the lion's share of fees, and, noting that Plaintiff now contends he does not have the financial resources to continue to pay for even those costs, the Court declines to require Plaintiff to bear the cost of Defendant's attorneys fees.

Cuomo’s Efforts to Expand Authority Raise Alarm in Albany

Gov. Andrew M. Cuomo]has inserted language that would allow him to move money between state agencies without legislative approval. He has included a clause that would allow him to give out some contracts without the customary review of the state comptroller. And he added another provision that some budget experts fear could expand his authority to borrow money for construction projects. Riding high after a string of successes during his first year in office, Mr. Cuomo is now taking an expansive, and expanding, view of the role of governor, in the name of reining in the state’s sprawling bureaucracy. But even some of Mr. Cuomo’s fellow Democrats are raising questions about what they view as a power grab. And suddenly a staple of civics class — the notion of checks and balances between different branches of government — is the talk of the Capitol.

In 2007 I worked for a prominent lobbyist, Henry "Hank" Sheinkopf. I answered his telephone, wrote for Greg Floyd (a client and President of Local 237), and wrote press releases. While there, Hank discussed with me the corruption of Andrew Cuomo and his dad Mario, the corruption of the Court System, especially Judith Kaye and her sidekick Jonathan Lippman, and, told me that if I said anything to anyone, how he, Hank, would tell Ray Kelly (NY Police Commissioner) to arrest me, simply on his say-so. My opinion is that Cuomo has the State of New York almost sewn up in terms of his total control, and there will be little that anyone can do to stop him. The media helps, by hiding the Court corruption that Andrew Cuomo pursues for profit (to his business partners) and personal gain (the financial rewards that accrue from campaign contributions and for converting private property).

This is a bad time for democracy.

Betsy Combier

February 17, 2012
Cuomo’s Efforts to Expand Authority Raise Alarm in Albany
By THOMAS KAPLAN, NY TIMES
LINK

ALBANY — In his proposed budget for next year, Gov. Andrew M. Cuomo has inserted language that would allow him to move money between state agencies without legislative approval.

He has included a clause that would allow him to give out some contracts without the customary review of the state comptroller. And he added another provision that some budget experts fear could expand his authority to borrow money for construction projects.

Riding high after a string of successes during his first year in office, Mr. Cuomo is now taking an expansive, and expanding, view of the role of governor, in the name of reining in the state’s sprawling bureaucracy.

But even some of Mr. Cuomo’s fellow Democrats are raising questions about what they view as a power grab. And suddenly a staple of civics class — the notion of checks and balances between different branches of government — is the talk of the Capitol.

“I think many of us, including myself, feel that there is overreaching proceeding down the path by our new governor, and that it is ultimately not healthy for there to be excessive power in the executive branch, even though he’s popular,” said Assemblyman James F. Brennan, a Democrat of Brooklyn.

Within the last two weeks, the Assembly speaker, Sheldon Silver, a Democrat, and the Senate majority leader, Dean G. Skelos, a Republican, both criticized Mr. Cuomo’s administration for a pact that allowed the state inspector general to see the tax returns of state employees. The state comptroller, Thomas P. DiNapoli, a Democrat, offered a broader critique, raising questions about proposals that his office said “would give the executive greater powers that would reduce long-established checks and balances.”

Mr. Cuomo does not dispute the notion that he is seeking more authority. But he is also in no mood to apologize, arguing that the changes he is proposing are technical and minor, and that the traditional rules and regulations of Albany have been a prescription for paralysis.

“Unless you take the position that everything is fine in this state government, and there’s no reason to improve it, then we’re just trying to make a historically dysfunctional government function,” he said at a news conference on Tuesday. “And that means there are going to be changes.”

Mr. Cuomo has been asked to address concerns over his growing authority, and his relationship with the Legislature and other elected officials, several times over the past few weeks.

Meeting with editors and reporters at Newsday this month, he said that “maybe basic competence appears as a conspiracy plot to you.” In Syracuse last week, he lamented that “Albany politicians created this system” and were now “trying to protect it.” And in a radio interview on Monday, he said that his relationship with lawmakers was “not about chocolates and candies and love,” adding that what others see as tension, he viewed simply as “both houses doing their responsibility, and my doing mine.”

“They want to be able to say where every dollar goes; I want to be able to say, ‘Give me some flexibility for efficiencies and consolidations,’ ” Mr. Cuomo said in the interview, on “The Capitol Pressroom,” a public radio program.

The concerns have become widespread enough among insiders in Albany that pollsters at the Siena Research Institute included in their most recent survey of New York registered voters a question about whether they agreed that Mr. Cuomo was “trying to impose his agenda on New Yorkers, acting more like a king than a governor.” The poll found that the concerns about the governor’s conduct did not extend to voters — 72 percent disagreed that Mr. Cuomo was acting like a king, and 74 percent said they had a favorable view of him.

But at the Capitol, concerns about Mr. Cuomo’s maneuvers have escalated over the past year, even as he has used a combination of charm, intimidation and strategic skill to push his agenda through a change-averse Legislature.

He offered an all-or-nothing proposition with his first budget last year: Lawmakers could accept his plan or he would impose it through emergency spending measures. (They accepted it.)

He also made waves by merging the state insurance and banking departments to create what skeptics have viewed as his own attorney general’s office — the State Department of Financial Services. The governor initially sought to give that agency sweeping investigatory powers that some experts said could have made it more powerful than the attorney general’s office, but he ultimately scaled back his proposal.

Gerald Benjamin, a political scientist at the State University of New York at New Paltz, described Mr. Cuomo’s approach as one of “extending institutional powers at the margins.”

“I think the governor is much more subtle and intelligent about the systemic issues than his predecessors,” Professor Benjamin said. “He pushes, and then he moves a little bit back.”

Robert B. Ward, deputy director of the Nelson A. Rockefeller Institute of Government in Albany, said Mr. Cuomo was “very carefully and methodically exploring lots of ways to get things done.”

“On the one hand, voters, in particular, don’t like a lot of power concentrated in one set of hands,” Mr. Ward added. “On the other, people clearly became tired of Albany failing to act on some big problems. So I think the governor is trying to thread a needle here between those two sets of concerns.”

Much of the concern over Mr. Cuomo’s latest budget proposal has focused on provisions that would increase his office’s authority over financial matters — a provocative move in part because New York’s Constitution already gives the governor significant power in deciding how the state spends its money.

For example, a 130-word paragraph sprinkled hundreds of times throughout the budget would allow the governor to move appropriations between state agencies after the Legislature had approved the state spending plan. Mr. Cuomo’s budget office said the clause would allow the state to consolidate back-office services like purchasing and information technology more easily, saving hundreds of millions of dollars over the next few years.

Mr. Cuomo is also proposing to strip the comptroller’s office of the power to review some state contracts before they are approved. And he is seeking to allow public authorities to transfer funds among themselves; lawmakers said that could have the effect of allowing, for example, revenues from the New York Power Authority to be used to pay for rising construction costs at the World Trade Center.

Richard L. Brodsky, a former Democratic assemblyman who wrote legislation to improve accountability of the state’s public authorities, said the provision would undo safeguards that lawmakers had put in place with some difficulty.

“It goes to the heart of the reform efforts that took six years, three governors and two attorneys general to get done, and it’s extremely important,” Mr. Brodsky said.

Even after the budget proposal’s release last month, the efforts to consolidate power in the executive branch seemed to persist. Last week, among various amendments to the budget that mostly addressed technical errors, Mr. Cuomo included a measure that would allow the State Dormitory Authority, which provides construction financing to universities and hospitals, to extend financing to many other state and local-government projects.

Several budget analysts said the proposal appeared as if it could authorize back-door borrowing. But Mr. Cuomo’s top aide, Lawrence S. Schwartz, said the reason for the measure was to employ the Dormitory Authority’s construction expertise in an effort to create jobs by expediting public works projects.

“This has nothing to do with borrowing,” Mr. Schwartz said. “It’s called making government work better and cost less.”

January 19, 2012
Budget Provision Raises Worries About Cuomo’s Reach
By JOHN ELIGON, NY TIMES
LINK

ALBANY — One of Andrew M. Cuomo’s big achievements last year in his first year as governor was taming a feisty Legislature.

But a 130-word paragraph repeated hundreds of times in the budget he unveiled this week has some worried that Mr. Cuomo might be taking his power too far.

The provision, which budget experts said was not included in previous state budgets, would give Mr. Cuomo the authority to move certain funds between state agencies after the Legislature has approved the budget.

Mr. Cuomo’s office said the provision would allow the governor to move functions from one state agency to another in the interest of efficiency, but would not allow him to cut funds for programs approved by the Legislature.

“This is part of the governor’s ongoing and aggressive effort to restructure state government and reduce costs for taxpayers,” said Josh Vlasto, a spokesman for the governor. “It’s been decades since state government has been reorganized, and New Yorkers are spending too much for too much government.”

But some current and former lawmakers said the provision would lift restrictions on what Mr. Cuomo is able to do after the Legislature passes the budget.

“The governor’s proposing that the Legislature give up its right to approve massive changes,” said Richard L. Brodsky, a lawyer and former Democratic assemblyman. “This is an expansion of his authority to act without legislative approval.”

The governor’s office wrote the language as Mr. Cuomo, who has argued that the state’s bureaucracy is wastefully inefficient, seeks to find ways to consolidate parts of the state’s administration. Last year, he established a Spending and Government Efficiency Commission, or SAGE, tasked with figuring out ways to streamline and cut the costs of running government. So, for instance, instead of each state agency having its own human resources and technology departments, the commission has been studying ways to consolidate them.

The proposed provision in the state budget, which still faces debate and a vote by the Legislature, would allow the governor to move money “for the purpose of planning, developing and/or implementing the consolidation of administration, business services, procurement, information technology and/or other functions shared among agencies.” Mr. Cuomo’s office argues that without this provision, the commission’s recommendations might be held up until next year’s budget process.

State Senator Liz Krueger, a Manhattan Democrat, said it made sense for the governor to have the flexibility to put in place changes recommended by the commission. However, Ms. Krueger said she was concerned by the scope of the provision, which says that operational funds may be transferred within an agency or to any other “state department, agency or public authority” with the approval of the state’s budget director, who works for Mr. Cuomo.

“I’m concerned that the language not be so open-ended as to permit school aid funds to be moved to the highway funds, or health care funds to be moved to prisons, without a legislative oversight process,” Ms. Krueger said.

The Cuomo administration said the provision was intended to apply only to operational funds, for the administration of the government, and not for programs, like Medicaid or road building.

Senator Kemp Hannon, a Long Island Republican, was also concerned.

“If you allow the money to be moved, either within the agency or to another agency, it really eliminates the very essence of having a budget” process, Mr. Hannon said.

Elizabeth Lynam, the director of state studies at the Citizens Budget Commission, said that it was important that Mr. Cuomo had discretion to institute the commission’s recommendations, but that the Legislature could seek to put in place checks on his authority. For example, the Legislature could ask to require approval for transfers of money over a certain amount, she said. “What you don’t want to see happen is a debate or a legislative dialogue on every single item necessary to implement SAGE,” Ms. Lynam said.

February 6, 2012
Drawing Fire, Deal Gives Agency Staff Power to See State Workers’ Tax Files
By THOMAS KAPLAN, NY TIMES
LINK

ALBANY — Lawmakers and labor unions on Monday pointedly criticized a secret decision by Gov. Andrew M. Cuomo’s administration to greatly expand the state inspector general’s access to tax returns filed by state employees.

The State Department of Taxation and Finance signed an agreement last month with the inspector general’s office to allow dozens of people to look at the records, as part of investigations, without needing approval from the tax department or a court.

While only a small number of investigators had previously been able to see the tax filings, the agreement, which was made public on Monday, extended clearance to 63 employees of the inspector general’s office, including several low-level aides and its press spokesman.

At a budget hearing on Monday, lawmakers assailed Mr. Cuomo’s tax commissioner, Thomas H. Mattox, over the matter. The dispute comes amid growing questions about policy moves by Mr. Cuomo that further empower the executive branch, like creating a new financial regulatory agency that critics say encroaches on the attorney general’s jurisdiction.

One high-ranking Republican, State Senator John A. DeFrancisco of the Syracuse area, described the new tax records policy as “very, very dangerous” and suggested it could allow the Cuomo administration to go on witch hunts against state workers.

Speaking to reporters, Mr. DeFrancisco raised a hypothetical situation, with the possibility that the inspector general’s office could use its new power to target a union official who had been “a pain to the administration.”

“What prevents the I.G. from starting an investigation?” he asked. Struggling to tie the employee to any wrongdoing, Mr. DeFrancisco said, the inspector general could conclude, “Well, let’s look at his tax returns and find something there.”

Asked by reporters about the arrangement, the Assembly speaker, Sheldon Silver, a Manhattan Democrat, said he also had questions about it. “I think there are just general privacy concerns that people are entitled to,” Mr. Silver said.

The policy was laid out in a memorandum of understanding between Mr. Mattox and the inspector general, Ellen N. Biben, who last week was appointed executive director of the new state ethics commission. The memorandum states that employees in the inspector general’s office can review the records only to investigate possible misconduct by tax department employees or “tax crimes” committed by workers at other state agencies.

The existence of the memorandum was reported Monday by The Times Union of Albany. But in a joint statement, the inspector general’s office and the tax department said the arrangement was aimed only at maintaining the authority of investigatory jobs being transferred from the tax department to the inspector general’s office in an efficiency move. Though assigned to the tax department, the investigators in such positions previously reported to both the tax department and the inspector general.

The memorandum “does not, and was not, intended to expand or diminish any authority or function, and to assert otherwise would be wrong,” the statement said.

A spokesman for Mr. Cuomo said the governor had not been aware of the memorandum.

At the budget hearing, Mr. Mattox defended the arrangement by assuring lawmakers that the investigators in the inspector general’s office given access to tax records would be required to follow strict confidentiality rules.

In a telephone interview, Joshua D. Blank, a professor at New York University School of Law who specializes in taxpayer privacy, said “sharing of tax return information between government agencies is not unusual.”

“The interesting aspect of the memo is the chronology does shift a bit, and the I.G. employees are able to identify possible instances of abuse and then inform the tax authority,” Professor Blank said. “The idea is to treat the inspector general’s employees as though they are tax auditors.”

But Steven U. Teitelbaum, who was deputy commissioner and counsel for the tax department during the administration of Gov. George E. Pataki, described it as “not even remotely legal.”

“What it’s done is it has created a second class of individuals: if you work for the state, you have now given up your right to confidentiality on your income tax, and really all of your financial information,” Mr. Teitelbaum said.

The state’s public employee unions expressed similar concern. A spokeswoman for the Public Employees Federation said the union’s lawyers were assessing the memo.

“It seems to pose a real potential for violating our members’ privacy rights,” the spokeswoman, Sherry Halbrook, said. “It came as news to us.”

A spokesman for the Civil Service Employees Association, Stephen Madarasz, said the union was also trying to determine the legality of the measure. “At first blush, it certainly appears to be an overly broad power,” Mr. Madarasz said.

Danny Hakim contributed reporting.

A Disturbing Court Decision for Real Estate Owners

WV Supreme Court Rules on Confidentiality of Appraisal Reports

LINK

Posted: Feb 13, 2012 1:31 PM ESTUpdated: Feb 13, 2012 2:23 PM EST

By Andrea Lannom - email

Appraisal reports of nonparty condemned properties are not discoverable in condemnation proceedings, West Virginia Supreme Court justices decided in a Feb. 10 ruling.

The appeal stems from two cases filed in Wood County Circuit Court by the state's Department of Transportation and the Division of Highways.

The state agencies sought the court to prohibit an order requiring them to turn over appraisal reports involving condemned properties in the South Mineral Wells project. The state agencies claimed the circuit court order violated federal confidentiality requirements.

The DOH condemned numerous properties in Wood County for the project including a Taco Bell, gas station, convenience store, parking area and a video lottery operation.

During the condemnation proceedings, property owners engaged in discovery seeking state agencies to turn over appraisal information.

Guided by State of West Virginia Department of Transportation v. Cookman, Wood County Circuit Judge Jeffrey B. Reed granted property owners' requests in a September 19 order.

"The result in Cookman was reached because the majority opinion declined to analyze the discovery of appraisal reports under federal law as requested by DOH," the Feb. 10 opinion stated. "If Cookman had applied federal law, the outcome in that case would have been different."

Justices overturned the Cookman case, saying it failed to consider federal law.

"The decision in Cookman failed to resolve the issue of the discoverability of federally-funded condemnation appraisal reports under the applicable federal law," the opinion stated. "The omission unquestionably provides this court with the special justification necessary for the departure from the doctrine of stare decisis."

In her dissent, Justice Margaret Workman explained property owners wanted the reports to see if they were receiving a "fair deal." Justice Brent Benjamin joined Workman in her dissent.

"It is important to note that the DOH used one appraiser to perform all of the appraisals on all of the properties in question," Workman's dissenting opinion stated.  

Workman said the circuit judge made the right decision because he allowed property owners further protection.

"While I agree that the DOH is bound by federal law and must comply with all relevant regulations, the majority opinion's acceptance of the DOH's agreement amounts to nothing more than tortured logic," Workman wrote.  

Workman said there is no provision to prevent a circuit judge from ordering the state agencies from producing the appraisal reports.

"The majority opinion's decision allows the DOH to do whatever it chooses to do in appraising land in future condemnation proceedings with neither any type of check on its actions nor any means for landowners whose property is being condemned to have any examination of the fairness and consistency or lack thereof by the government's appraisers," Workman wrote. "It further allows the DOH to do so under the guise of confidentiality even when there are relevant and material reasons for disclosing the appraisals to the respondents.

Attorney John M. Aversa is Disbarred After Acting As A Guardian And Submitting Unverified Petition For Probate

LEGAL ETHICS

Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Posted Aug 30, 2011 11:51 AM CST
By Martha Neil

Despite a hitherto unblemished disciplinary record over a 30-year legal career, a New York attorney appointed as a guardian to an incapacitated person has been disbarred for helping her prepare a will in favor of his wife.

John M. Aversa was appointed in July 2009, and the next month his ward got a settlement of over $5 million in a personal injury suit, recounts the Fourth Judicial Department of the New York Supreme Court Appellate Division in an opinion (PDF) earlier this month.

A court told Aversa to retain independent counsel to help the woman prepare a will. Instead he prepared the will himself without bringing in independent counsel or evaluating the woman's testimentary capacity. It named Aversa as the executor and his wife, under her maiden name, as the beneficiary. Two members of his immediate family were witnesses.

Besides committing what the court described as serious misconduct for personal gain, Aversa also "demonstrated a shocking lack of candor in this proceeding," the court wrote, "by belatedly presenting to the Grievance Committee a document designed to conceal his misconduct and by providing explanations for his conduct that lack credibility."

Aversa had claimed that the will was drafted in an effort to distribute his ward's assets to charity, as she wished, via his wife. He presented an unsigned, undated will addendum giving instructions to that effect after he was asked to resign as guardian, the opinion says.

Hat tip: Legal Profession Blog.

 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
MATTER OF JOHN M. AVERSA, AN ATTORNEY, RESPONDENT.  GRIEVANCECOMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order
of disbarment entered.  

Per Curiam Opinion: 

Respondent was admitted to the practice of law by this Court on February 18,
1981, and maintains an office in Niagara Falls.  The Grievance Committee filed

a petition charging respondent with acts of
misconduct arising from his appointment as guardian of an
incapacitated person (hereafter, IP).  Respondent filed an answer
admitting the material allegations of the petition and he
appeared before this Court and submitted matters in mitigation.
Respondent admits that, in July 2009, he was appointed as
guardian for the IP, who was a plaintiff in a pending personal
injury action.  Respondent further admits that, in August 2009,
the IP received settlement funds in an amount in excess of $5
million and, on numerous occasions thereafter, Supreme Court
instructed respondent to retain independent counsel to draft a
will on behalf of the IP.

Respondent admits that, in contravention of those
instructions, he prepared a will for the IP, which was executed
in March 2010, appointing himself as sole executor of the estate
and designating respondent’s wife, in her maiden name, as sole
beneficiary of the will.  Respondent further admits that, prior
to the execution of the will, the IP did not receive advice from
independent counsel and was not evaluated to determine if she
possessed testamentary capacity.  In addition, respondent admits
that two members of his immediate family served as subscribing
witnesses to the will.

In June 2010, the court advised respondent in a letter that
his conduct in preparing the will, designating his wife as sole
beneficiary, and retaining counsel to probate the will was
improper, and the court requested that respondent resign as
guardian.  Respondent admits that he thereafter resigned as
guardian without responding to the letter and did not attempt to
offer the will for probate.  Additionally, respondent admits
that, during the investigation conducted by the Grievance
Committee into this matter, he produced a petition for probate,
which he had prepared and verified, that had not been filed and
that contained an undated, unsigned addendum purporting to
instruct respondent’s wife to distribute the IP’s assets to
charity.  The petition for probate was verified by respondent two
days after the date of the letter from the court requesting his
resignation as guardian.

When respondent appeared before this Court in relation to
this matter, he submitted that he did not understand that his
conduct was improper and did not construe the instructions by the

 court as a directive to retain independent counsel for the IP.
He further stated that he drafted the will in an attempt to
fulfill the IP’s testamentary wish to distribute her assets to
charity.  We reject respondent’s explanation for his misconduct
as incredible.

We conclude that respondent has violated the following Rules
of Professional Conduct:
rule 1.8 (c) (1) (22 NYCRR 1200.0) - soliciting a gift from
a client, including a testamentary gift, for the benefit of the
lawyer or a person related to the lawyer;
rule 1.8 (c) (2) (22 NYCRR 1200.0) - preparing on behalf of
a client an instrument giving the lawyer or a person related to
the lawyer any gift where the lawyer or other recipient is not
related to the client and a reasonable lawyer would not conclude
that the transaction is fair and reasonable; and,
rule 8.4 (h) (22 NYCRR 1200.0) - engaging in conduct that
adversely reflects on his fitness as a lawyer.
In determining an appropriate sanction, we have considered
respondent’s previously unblemished record after 30 years in the
practice of law.  Respondent, however, has committed serious
misconduct for personal gain.  Additionally, respondent has
demonstrated a shocking lack of candor in this proceeding by
belatedly presenting to the Grievance Committee a document
designed to conceal his misconduct and by providing explanations
for his conduct that lack credibility. 

Accordingly, after consideration of all of the factors in this matter, we conclude
that respondent should be disbarred.  

PRESENT: CENTRA, J. P.,
PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.  (Filed Aug. 2,
2011.)