Making the Mandate Mandatory

The two most notorious (though not necessarily the most nefarious) provisions of the Obamacare law are the Individual Mandate to be covered by healthcare insurance and the Employer Mandate to provide healthcare insurance to employees.  This posting shall not now delve into the exacting details, the rules, the exceptions to the rules, or the perversions of the rules by those who should be enforcing them (i.e., the Obama administration).

It suffices to say that the Obama Administration has unilaterally taken upon itself to delay enforcement of the Employer Mandate, and the Republicans in Congress now seek to impose a commensurate delay in the enforcement of the Individual Mandate.  Conspicuous by its absence is the critical spotlighting by the Republicans of the Obama Administration's double standard in the matter, a publicity campaign along the lines of "sauce for the goose is sauce for the gander."

Well now, Judicial Watch and Dr. Larry Kawa are doing what the Republicans should have been doing in that regard, except they are taking the opposite approach.  Instead of striving to delay the Individual Mandate, they have filed suit to enjoin the Administration from delaying the Employer Mandate.

The strategy is not only interesting, but also carries a level of integrity that has been missing from the whole process thus far.  Employers are, by and large, elated to have a one year's reprieve from the Employer Mandate.   Dr. Kawa is asking to be treated equitably, even if such equity means he will be deprived of his entitlement privilege.

We shall see how this one develops.  For the Congress.  For the Administration.  For the Employers.  For the Individual Mandate.

And, of course, for the Judiciary, whose integrity is being tested no less in the matter.

Where Did All That Money Come From?

The New York State judiciary has been perceived by many as viewing itself above the need to share in the pain of the current budgetary crisis. Judges whine that their salaries are far below what they could earn in private law practice, never mind that they chose to run for the seat on the bench in the first place. The New York Court of Appeals is now completing, if it has not already completed, construction of luxury apartments for its judges to use while up in Albany. Many court personnel are where they are on account of political patronage, which wouldn't be so bad if so many of them were not so insolent towards the attorneys and members of the public whose circumstances compel dealings with the court system. And Chief Judge Jonathan Lippman did a lot of pouting and pissing and moaning before he grudgingly conceded the need for the judiciary to make some painful cuts in its budget.

But there is at least one judge who understands his duty to stand watch over the public purse. Justice Robert A. Ross, of the Nassau County Supreme Court (don't be too impressed by the "Supreme" terminology; the county Supreme Courts in New York are the lowest courts of general jurisdiction), has before him the matrimonial action of Felice Cohen against Eyal Cohen. In the course of the proceedings, Eyal had asserted that his income was approximately $10,000 per year and that he lived rent-free on Mom & Dad's dime, and, pleading poverty, was assigned counsel (i.e., on the taxpayers' dime).

Eyal apparently had been less than fully cooperative with the Court's directives, and a contempt hearing (not the first one) had been scheduled. Shortly before the scheduled contempt hearing, Felice and Eyal reached a settlement whereby Eyal would pay Felice a settlement of $45,000.

The numbers did not add up when Justice Ross crunched them. How would a person whose income is only $45,000 and who has few assets come up with $45,000? It is one thing to hide assets and income from your soon-to-be-ex spouse. But Eyal hid the assets and income from the Court, and, based upon Eyal's representations, the Court upheld Eyal's Constitutional right to counsel by dipping into the public fisc to engage an attorney for Eyal.

Judge Ross has now called upon Eyal to attend a hearing to explain the apparent discrepancy. In his order, the Judge gives Eyal the opportunity to file an amended Statement of Net Worth, and, to spare Felice's purse, has dispensed with the need for her to attend the hearing. Unless Eyal has a good and credible and documentable explanation, it seems that Judge Ross intends to make Eyal reimburse the State for paying the assigned counsel. And if Eyal did make a major misrepresentation to the Court, then his proper and honest filing of an amended Statement of New Worth would, in all likelihood, give Judge Ross a basis for not sending Eyal to the slammer.

After 20-something years, my own marriage is in no danger of going before Judge Ross or any of his colleagues on the bench. This good investment in my marriage has saved my wife and I lots of money that otherwise would go to the divorce lawyers. It also has saved the taxpayers of New York the expense of having another matrimonial action work its slow and convoluted way through the judicial system.

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.