Expatriate Owl

A politically-incorrect perspective that does not necessarily tow the party line, on various matters including but not limited to taxation, academia, government and religion.

Monday, September 07, 2009

The Court's Gatekeepers

New York's has had an interesting and diverse history. Its first European discovery was by an Italian in the service of the French, and there was subsequent colonization under alternating Dutch and British flags before it joined in with American independence. The opening of the Erie Canal made New York City a robust commercial center where economic promise induced many people to immigrate. Among the new immigrants was a significant contingent of Irish, who provided rich fodder for the Tammany Hall political organization. Other groups likewise participated in the political landscape of New York City, and made their contributions. Artifacts from this history, foul and fair, are still very much a part of New York and its culture and government.

New York's legal system is a product of these historical events and trends. Specifically, New York has one of the most intricately developed set of procedural rules for legal practice in the courts. As one whose livelihood depends upon the ability to navigate within the Byzantine structure of the courts, I can attest that the courthouse clerks wield a tremendous amount of power. The corps of court clerks need regulation and oversight as much as any other bureaucracy, else they would quickly spin out of control and into tyranny.

An exemplar of how petty, picayune and penny-ass some court clerks can be is the case of Joseph E. Gehring, Jr., Esq., an attorney who attempted, just two days before the statute of limitations was to blow, to file an affidavit of judgment confession, a common means to secure and collect a debt.

The Clerk of the Court refused to accept the paper for filing because it was a copy and not an original.

It must be understood that Section 2101(e) of New York's Civil Practice Law and Rules ("CPLR") specifically provides that "Except where otherwise specifically prescribed, copies, rather than originals, of all papers, including orders, affidavits and exhibits may be served or filed." And, as recently updated, CPLR Section 2102(c) provides that "a clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court."

Gehring sued Norman Goodman, the New York County Clerk and Clerk of the County Supreme Court (in New York, each county has its own Supreme Court, another anomaly of the New York legal system). And Judge Braun ordered Goodman and his subordinates to comply with the law and accept the copy of the affidavit for filing.

I have dealt with clerks in several courts, and can say from my own experiences that the clerks in the New York County Supreme Court are, with some exceptions to be sure, more arrogant than the clerks of the United States Supreme Court. Goodman has been there since 1969, and I have had to deal with his subalterns on numerous occasions. They run hot and cold, but stories of insolence by Goodman's boys and girls abound. Goodman has been implicitly or explicitly chastised by a judge on a number of occasions. This time he had it coming to him.

Where court clerks can make up the rules as they go along, they can also play favorites. And when the court clerks play favorites, the court system is no longer impartial.

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