"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, August 21, 2015

Unconstitutional "imputation" of income against indigent parents as a way to reinvent debtors prisons

Child support proceedings in New York are governed by statute, Family Court Act Article 4.

Support magistrates or Family Court judges, or Supreme Court judges deciding custody issues within divorce proceedings, have no authority to deviate from that statute.

By Family Court Act Article 4, a parent who earns an income below the so-called "self-support reserve", which is 135% of the federal poverty level for that year, can only be charged $25.00 a month in child support.

Federal poverty guideline for the year 2015 can be found here.

New York cannot charge parents in support proceedings more than $25.00 if the court has proof that parent's income does not exceed the federal poverty level multiplied by 1.35 (135%).

What New York support courts can deem as "income" for purposes of child support proceedings is defined by  Family Court Act Section 413 subsection 5:

The "imputation" of income is within the "discretion" of the court and is not accompanied by any guidelines as to what is the procedure of "imputation", what factors should be considered.

The "imputation" section of the Family Court Act is unconstitutional because of its "including, but not limited to" section.

When a court is given the power to make orders that invoke the state's police power and may put a person in jail, that power should be strictly defined, with a notice to the public as to what the court MAY and what it MAY NOT do.  

The "including, but not limited" part of the statute, coupled with the "discretion" statute provides parents no notice whatsoever as to what can be "imputed" as income upon them, which, to me, is a constitutional violation.

Moreover, imputing income based on past earnings and projected POSSIBLE future earnings of an unemployed parent is nothing other than conjecture, and, in my legal opinion, does not pass constitutional muster.

No matter what was the parent's income level in the past, the parent may not be able to earn the same income at present, and it is the present income of the parent that the court should be considering, not the court's own speculations.

Since courts usually do such imputations and conjectures without any evidence as to the state of the economy or the parent's current employment opportunities based on parent's background, educational and skill level, age, command of the English level, disability or other factors, the statute is, in my opinion, unconstitutionally vague and allows arbitrary enforcement, making the statute vulnerable to a constitutional challenge through a civil rights lawsuit.

Chances of overturning imputations of income on appeal are, frankly, not good because imputations are, by statute, within the "discretion" of the court, are reviewable on appeal only for "abuse of discretion", and appellate courts in New York are well known for rubber-stamping any discretionary act of the lower courts and refusing to interfere.

That is not to say that appeals should not be filed and are futile, they are just hard to win, but abuse of discretion can nevertheless be won based on factual circumstances of the case.

I know of two cases personally where income was imputed.  In both cases income was imputed of over $20,000.00 a year (above self-support reserve), without any evidence or analysis about the economy in the area where the parent lives or employment opportunities for that particular parent, with his or her background, command of the English language, age and educational and skill level.

I provide here a link to several other "imputation" cases described, where NYS Appellate Division 2nd Department found a "discretion" of the trial court to impute income in child support proceedings.

One issue of abuse of discretion that can be proven on PROCEDURAL grounds and as a matter of COLLATERAL ESTOPPEL is imputation of income upon parents who are adjudicated as indigent, as evidenced by assigning counsel to them in other court proceedings.

When counsel is assigned by order of the court, based on evidence of indigence provided by parent to the court, such an order may be used to show abuse of discretion by the court in imputation of income despite such assignment order AS A MATTER OF LAW.

A judge may not deem the same person indigent for one purpose and not indigent for another.  That is the ultimate abuse of discretion - and show of bias, in my legal opinion.

In a recent case, Judge Phillip Rumsey of Cortland County Supreme Court, assigned to a Chenango County Supreme Court case, assigned counsel to custody proceedings of the parent and at the same time imputed income of $20,000 to the parent.  Those were two mutually exclusive orders and, I believe, in this case imputation can be addressed as abuse of discretion and a show of bias on appeal.

Moreover, imputation of income to indigent parents in upstate New York, with its slow (if not dead) economy and scarcity of jobs is one other example of abuse of discretion by trial courts.

Rural New York, and I am speaking from experience, is currently a dead zone, and has been like that since around 2008, when many towns in upstate New York look like ghost towns, and jobs are available only in the local government (which are controlled by local family clans).

In 2008 an Orange County Family Court judge imputed income to an indigent parent that I know of based on the fact that she had a barber license and a "barber shop".  

A barber in the rural town where the parent lived could not come close to earning $20,000.  That did not concern the Orange County Family Court judge one bit.  She put the parent in jail for "contempt of court" - which requires two elements to be satisfied by clear and convincing evidence:

(1) that the order of child support "disobeyed" by the parent is lawful - it was not because it was contrary to statutory requirements of the Family Court Act that does not allow "imputation" of income upon indigent parents and does not allow to charge an indigent parent more than $25 per month in child support;

(2) that the judge, sitting in a civil contempt proceeding, must first ascertain whether the parent ACTUALLY has the money in arrears that is allegedly owed.  If the parent does not ACTUALLY (not imputedly) have such money, the parent may not be put in jail, becuase jurisdictionally Family Court does not have authority over criminal contempt proceedings, only over civil contempt proceedings where the "contemnor" (parent in contempt of court) must "hold the keys to his/her jail cell", meaning the parent in question must have the ACTUAL ABILITY, his/her own, not his/her relatives and friends', to pay the money owed to get out of jail.

None of that means anything to judges of New York State Family Court.

I will list judges who held an indigent parent in contempt of court and ordered her to pay despite her statements that she has no income and no ability to do so, and despite incontrovertible evidence, a court order of foreclosure, showing that the "barber shop" upon which the imputation was based, is no longer in existence, the house foreclosed on and the barber equipment taken during eviction proceedings.  

That did not perturb the courts one bit and did not sway them in determination that imputation of support based on judge's conjecture that the indigent parent MUST earn $20,000 a year out of a now non-existent barber shop, must continue.

Here is the list of "winners":

  • Orange County Family Court
  • Appellate Division 2nd Judicial Department that affirmed the Orange County Family Court's ruling
  • Judge Richard Brown, support magistrate for Delaware County Family Court
  • Carl F. Becker, no longer a judge, retired, Delaware County Family Court judge at the time of the ruling
  • Judge Susan Kushner of Albany County Family Court
  • Judge Richard Rivera, at that time Albany County Family Court support magistrate, now an Albany County Family Court judge
  • Dennis Duggan, no longer a judge, at the time of ruling Albany County Family Court judge

Since the time of unlawful "imputation" of income, contrary to statutory jurisdictional constraints, by the Orange County (by the way, court orders in excess of their jurisdiction are VOID), 8 courts, including state courts in three states and two federal courts relied upon that unlawful decision in ruling against the parent.

The parent was put in jail twice and threatened to put in jail two more times in the past based on the unlawful order, by the Orange County Family Court in 2009 and by the Albany County Family Court, Judge Susan Kushner, in 2014.  

Judge Kushner had in front of her evidence that the parent has no actual ability to pay, that the barber shop was no longer in existence, as the parent's house where the barber shop was was foreclosed on, and the barber shop itself, equipment and all, was taken by the foreclosing party during eviction proceedings.

Judge Kushner still put the parent in jail without an evidentiary hearing.   

By the way, at the time of proceedings, Judge Kushner was a Facebook friend of the law guardian in the case Lisa Gordon, whose actions indicated she worked for the opponent of the incarcerated parent and not for the child.

None of the judges who made the unlawful rulings against the parent, including incarceration, were disciplined.

The parent was brought in contempt of court for not paying the unlawfully "imputed" child support that the parent had no actual ability to pay after she made a motion to recuse a judge and sued a judge.

In a case that was recently reported to me, income for purposes of child support of over $20,000 (looks like judges have guidelines for imputation of income, so that it is a little bit above self-support reserve) was imputed upon a parent to whom the same court assigned counsel for purposes of child custody proceedings - meaning that the parent was a PROVEN indigent.

The judge who unlawfully imputed such income upon a 60-year-old unemployed parent living in rural upstate New York, a parent with no college degree and for whom English was not a native language, was Phillip Rumsey, Corland County Supreme Court judge sitting in Chenango County Supreme Court divorce proceedings.

From the above, a rule or policy or both emerges.

A message to indigent parents sued in New York State Family Court for child support:

Sue the judge - and income will be unlawfully imputed to you, you will be made to pay on the unlawful order, no courts will pay attention the order is unlawful, no courts will pay attention that you cannot be put in jail for being UNABLE to pay in a CIVIL contempt proceeding, and you may be locked up.

Is it legal?

Of course, not.

Do courts care?

The story of the two parents shows - nope.

Yet, my firm belief is that judges who KNOWINGLY impute income upon indigents from which the indigents must pay times more than what the law allows to make them pay - and then who hold them in contempt, fine them and put them in jail for violating such illegal orders - should be taken off the bench, stripped off their law licenses and prosecuted criminally.

The parent in the first case described on this blog was made to pay $69.00 a week.  that's more than $280.00 a month.

Since the parent earns less than self-support reserve, by the same Family Court Act the parent could not be made to pay more than $25.00 a month, but there are no procedural safeguards in the Family Court Act preventing courts from avoiding the $25.00 a month requirement for the poor parents and instead "imputing" income upon such parents that makes them appear not poor, no matter what the actual evidence of their income is, and no matter what their chances of gainful employment are.

What can be done about it?

Be vigilant.

File and perfect appeals, make sure the appeal goes through, do not stop mid-way after the appeal is filed.

Point out that imputation of income was a clear abuse of discretion in view of evidence of indigence - such as assignment of counsel based on submissions of that same parent to that same court or to another court.

If contempt of court proceedings are brought against you in NYS Family Court and if the court warns you on the top of the petition that the petition seeks to punish you, point out that the law does not give New York State Family Court judges, and especially support magistrate, to hold CRIMINAL contempt proceedings, and punishment is the function of CRIMINAL, not CIVIL contempt proceedings.

Point out that in CIVIL contempt proceedings, proof that parent is unable to pay the court-ordered support amount is an absolute BAR to the court's ability to put the parent in jail to MAKE the parent pay what he or she does not have.

Point out that you have a right to an EVIDENTIARY hearing before any decision regarding civil contempt is made by the judge.

Watch out for the word "punish" in the court order of contempt.  The word "punish" indicates criminal proceeding and entitles you to move to vacate for lack of jurisdiction, because, once again, Family Courts in New York do not have criminal jurisdiction.

Watch out for a specific term of incarceration, which constitutes a CRIMINAL SENTENCE, for which Family Courts, once again, have no authority - in civil contempt proceedings a parent can "only" be put in jail for the period not to exceed 6 months OR until the contempt is "purged" (money is paid), and only if that money is available to the PARENT, not to his friends or extended family.

Appeal contempt orders.

Appeal incarceration orders.

Be vigilant.

Prevent unlawful actions of Family Courts, fight them, make them public.  Otherwise, courts do not want to be controlled by law or constitution.

Judge Frank B. Revoir, Jr. of Chenango County Family Court, presiding over the Delaware County Family Court proceeding, said that much to me - that my constitutional arguments in Family Court is the equivalent of "lying to the court".  It is on record.  Judge Revoir was not disciplined for that by the NYS Commission for judicial conduct.

If nothing else helps, sue in federal court for civil rights violations.

Once again.

Be vigilant.

Fight for your rights.

Point out to the trial court the limits of its jurisdiction.

Point out to the trial court that you have no actual income, no actual prospects of getting a job that will pay you above self-support reserve, provide evidence of that - letters of rejection, printed out local vacancies, local news articles about jobs available.


Sue in federal court if you are held in contempt despite your actual inability to pay proven to the court, or if you are held in contempt to punish you, for which Family Court in New York has no authority.

Complain to the NYS Commission for Judicial Conduct - just make the record there, better by e-mail, so that they cannot deny you sent the complaint.

Make your case public, hit the social media with your story, expose incompetent and biased judges committing misconduct against you, in violation of the law.

Do not allow unlawful actions of judges creating unconstitutional debtors prisons in New York, and especially doing that in retaliation for parents suing judges, to continue.

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