Yet, courts in New York - as well as across the United States - unconstitutionally legislate in a variety of ways.
Of course, such "legislating from the bench" is always portrayed as being for the good of the people in general and of certain groups of "victims" in particular.
This is exactly the way New York state court system has unconstitutionally created a system of "courts, but not courts" - a variety of "helping courts", such as
- drug courts, including separate "opioid courts";
- "family treatment courts", and
- the latest invention -
the so-called "Integrated Domestic Violence Courts".
Here is how the New York Court Administration describes these courts on its website:
Integrated Domestic Violence (IDV) Courts
What is an Integrated Domestic Violence (IDV) Court?
IDV Courts are specialized Supreme Court Parts developed to better serve families in crisis. Our current court structure often requires domestic violence victims and their families to appear in multiple courts (in front of multiple judges) to address their criminal, family, matrimonial and other legal problems. IDV Courts, by contrast, are dedicated to the idea of "One family-One judge," allowing a single judge to hear related cases involving domestic violence victims and their families. The goal of the court is to change the way the justice system treats families and children by promoting more informed judicial decision-making, creating consistency in orders of protection and reducing court appearances, as well as providing enhanced services to victims and ensuring defendant accountability.What cases are included in the IDV Court?
Related criminal, matrimonial and family court cases filed in the same county which involve a single family may be eligible for the IDV Court. Allegations of criminal domestic violence form the threshold requirement for entry into the IDV part, with related cases in at least two of the three areas of law. Although the cases will be heard in the IDV Court part, each case will retain its individual integrity and will not be consolidated with each other.How do IDV Courts operate?
The goal of the IDV Court is centered around the coordination of related domestic violence cases, victim safety, defendant accountability and addressing the needs of families affected by domestic violence. IDV Courts are unlike Drug Courts where the focus is on rehabilitation of the criminal defendant. In IDV Courts, judicial monitoring of offenders is a cornerstone of the IDV Court and there is a Compliance Part component to the IDV Court to address the issue of defendant accountability. In addition, IDV Courts also assist families in accessing community services and resources in a coordinated team manner.How will the transfer of cases into the IDV Court part occur?
An administrative order is issued identifying eligible cases that can be transferred to the IDV Court part. Cases that are eligible for the IDV Court are identified through the contributing courts, along with the cooperation of attorneys, law enforcement, victim advocates, and other community service providers. The ultimate determination as to whether the cases will be transferred to the IDV Court is made by the IDV Court Judge who issues the Transfer Order that is sent to the originating courts, counsel or parties.
Well, first of all, they are not provided for by the New York Constitution, or New York legislature.
Second, there is no legislatively set procedure governing operation of these courts. They are fly-by-night courts formed at the whim of judges and going by whatever "rules" judges create on the go.
Yet, the LIMITED authority of the judicial branch is only to:
- Adjudicate (decide) cases brought in front of courts created by the legislature by parties,
- following legislatively set procedures (rules),
- and in accordance with substantive laws also created by the legislature.
That's it.
The judicial branch is not authorized to create:
- separate courts;
- separate rules for them.
Third, what else is a huge "no-no" for courts is the so-called "pre-judgment" of the case.
And, treating the supposed plaintiffs (or prosecution's complaining witnesses in criminal proceedings) as "victims" and holding courts to "help" them - before they are actually determined to be victims by the FINAL decision of the respective cases (civil or criminal) - is unconstitutional.
Now, the fourth problem in operaton of such courts is that they - deliberately, on purpose - break JURISDICTIONAL barriers that they are not allowed to break, creating a procedural mess for all cases involved.
The legislature created specific rules of "consolidation" (merging) of court cases.
Here is what the New York Court administration says about consolidating of Family Court, criminal court and Supreme Court cases which are marked "eligible" for the "Integrated Domestic Violence" (IDV) "Courts":
What cases are included in the IDV Court?
Related criminal, matrimonial and family court cases filed in the same county which involve a single family may be eligible for the IDV Court. Allegations of criminal domestic violence form the threshold requirement for entry into the IDV part, with related cases in at least two of the three areas of law. Although the cases will be heard in the IDV Court part, each case will retain its individual integrity and will not be consolidated with each other.
Once again:
"Although the cases will be heard in the IDV Court part, each case will retain its individual integrity and will not be consolidated with each other. "
Of course, no explanation is given as to how, in practice, such cases will be merged, but not merged.
And, there is a reason for this vagueness.
As I mentioned above, in New York there are strict, legislatively set, rules of consolidation of court cases.
- A criminal case may never be consolidated with a civil case - from Family Court or from the Suprem Court (the lower general jurisdiction court in the State of New York is called "Supreme Court").
- A Family Court domestic violence case (Article 8 of the Family Court Act) may never be consolidated with a Supreme Court divorce case.
And, finally, there may not be a "one family - one judge" case (even if consolidation of criminal and civil cases were allowed) when:
- there is a combination of a Family Court domestic violence (Article 8) case and a justice court criminal misdemeanor case - because the local Family/County/Surrogate's court judge who is supposed to decide the Family Court case as a TRIAL jurisdiction must serve as an APPELLATE jurisdiction for misdemeanor criminal cases out of local justice courts - and the same judge serving as both a trial and an appellate judge in the same case is unconstituional, the New York State Court of Appeals has confirmed it in a specific precedent on this issue in 2017, OR WHEN
- a certain Family Court judge was simply not appointed by the New York Chief Administrative Judge as an "Acting Supreme Court Justice", in other words, a Family Court judge under such circumstances has no authority to hear issues from a divorce case out of a Supreme Court; and
- If the Family Court judge IS also an Acting Supreme Court justice, he/she may not supersede (cancel) the supposedly existing "random assignment system" assigning judges to court cases, which is operated by the respective Judicial Administrative District. And, if the judge seeks the so-called "consistency" across these three types of courts, he may just as well direct it to the assigning administrative judge, and not create his own "rules" bypassing assignments.
And, if the domestic violence criminal case is a felony, it may only be adjudicated through an indictment of the grand jury, while a felony case in New York usually starts in a justice court.
So, putting together an initial stage of a felony case out of a justice court that did not yet go through an indictment process adds an additional jurisdictional violation.
So, the supposed "problem" -
What is an Integrated Domestic Violence (IDV) Court?
IDV Courts are specialized Supreme Court Parts developed to better serve families in crisis. Our current court structure often requires domestic violence victims and their families to appear in multiple courts (in front of multiple judges) to address their criminal, family, matrimonial and other legal problems. IDV Courts, by contrast, are dedicated to the idea of "One family-One judge," allowing a single judge to hear related cases involving domestic violence victims and their families. The goal of the court is to change the way the justice system treats families and children by promoting more informed judicial decision-making, creating consistency in orders of protection and reducing court appearances, as well as providing enhanced services to victims and ensuring defendant accountability.
that "Our current court structure often requires domestic violence victims and their families to appear in multiple courts (in front of multiple judges) to address their criminal, family, matrimonial and other legal problems"
may not be resolved administratively by the state Court administration, but must be resolved only legislatively.
4. Moreover, there is a HUGE problem with the difference in the factfinders:
- The Family Court domestic violence case is decided exclusively by a judge (a bench trial);
- In the Supreme Court divorce case some issues may be decided by a jury (grounds for divorce) and the rest of it - by the judge; and
- the criminal case, by the State and Federal Constitution, is decided STRICTLY by the jury - unless the defendant waives his right to a jury trial in writing,
- in the Supreme Court tort (assault, battery) case the factfinder is also the jury - unless the case is decided by a summary judgment is facts are not in dispute by parties.
5. Since Family Court domestic violence and Supreme Court divorce and tort cases are considered "civil" cases, they may be decided without a trial at all - by a motion for a "summary judgment".
No summary judgments are allowed in criminal cases, which must be proven by the prosecution to the jury - beyond a reasonable doubt.
6. There are completely different rules of discovery in civil and criminal cases in New York.
While in criminal court there was - with much theatrics - introduced a so-called "discovery reform", it still did not change the core difference between a civil and a criminal case: availability in civil cases of a
- LIBERAL (wide) discovery, not a strictly restricted one to certain enumerated positions, and
- most especially - of availability in civil, but not in criminal, cases of the right to FORCE the opponent to answer, under oath, questions asked by a party OUT OF COURT, orally (a deposition) or in writing (an interrogatory, a notice to admit).
7. Moreover, Family Court domestic violence cases and Supreme Court divorce cases are SEALED - while criminal cases and Supreme Court civil "tort" (assault, battery) cases are OPEN TO THE PUBLIC.
Not to mention that
8. In criminal cases the defendant has a right to remain silent THROUGHOUT the proceeding, including an appeal from a "guilty" verdict and a sentence, which respondents in Family Court and civil defendants in the Supreme Court do not have, so an "IDV judge" may not force a criminal defendant to talk about his case for any reason whatsoever, defeating the purpose of the "court".
Which means that the only way IDV courts can exist is by forcing criminal defendants to plead guilty in order to "enter" such an "IDV court" - in exchange for some promise of leniency, usually a false promise, just to lure people into a setting where judges can submit such people as captive patients to judges' friends - "providers of services", under the threat of contempt of court.
9. And, PARTIES in Family Court, Supreme Court and criminal court are different.
- In Supreme Court parties are ONLY the divorcing spouses (their children may be assigned a separate attorney, but they are not mentioned in the court case as separate parties);
- In the Family Court parties to a domestic violence case may be people restricted to categories defined by Article 8 of the Family Court Act;
- In a Supreme Court tort (assault, battery) case there is no restriction on who may be the plaintiff and who the plaintiff may sue as defendant in terms of a family relationship
- In a criminal case the plaintiff is "The People of the State of New York" against the defendant, and the complaining witness of the prosecution (the ALLEGED victim of domestic violence) is not a party in the proceedings at all,
so, an IDV "court" may not
- pre-judge a specific case making an alleged victim a true victim as a matter of law, and make decisions based on such a determination; or
- make the alleged victim a party in a proceeding where the alleged victim is not a party.
and, last, but not least,
10. In a Supreme Court divorce case, while issues of domestic violence may be raised if one of the divorcing parties insists on, instead of a "no-fault" divorce (the majority of divorce cases nowadays in New York and an easy adjudication of the grounds), a "cruel and inhuman treatment" - which is not the same, as a matter of New York law, as what is considered "domestic violence" in the Family Court Act, Article 8, THERE IS NO REMEDY provided under the law to the victim of such violence - even if a judge finds that a spouse was, indeed, subjected to "cruel or inhuman treatment".
NO REMEDY means NO REMEDY - a transfer to an IDV "court" may not create such a remedy when the law does not provide for one.
In divorce cases parties often try to claim that the court must take into account domestic violence in dividing property among spouses - but, the law does not allow to take domestic violence into account when dividing property, the issue of domestic violence is irrelevant to the issues of equitable distribution, as a matter of law.
And nearly the same in custody of children. Violence of one partner against the other, if done outside of the presense, view and/or hearing of children may - and often is - ignored by New York courts in awarding custody of children.
So, as it was shown above, domestic violence cases with issues raised in Family Court, Supreme Court (divorce and tort cases) may not legally be merged with one another, and with criminal cases.
And, hearing them in an IDV "part", by "one family - one judge", actually VIOLATES the law, and constitutional rights of the accused - instead of "helping victims", who, as it was mentioned above, are not "victims" at all before the case has gone through
- full discovery,
- full trial (a jury trial in the criminal and a part of the divorce case), and
- a final verdict is obtained - making the IDV "court" unnecessary.
So, if a case is "identified" as an IDV case and people are forced into an IDV court by an "administrative order", they try to challenge the whole idea of IDV court's existence in federal court, as a violation of multiple constitutional rights:
- right to remain silent and for a jury trial - in criminal cases;
- right to due process, not to have their cases pre-judged by calling complaining wintesses/parties as "victims" before the final decision in the court case;
- right to an impartial judicial review;
- right to by tried by a real court, not an administratively created tribunal, like an "IDV court", not set by the State Constitution or legislature;
When saying that
Integrated Domestic Violence (IDV) Courts
What is an Integrated Domestic Violence (IDV) Court?
IDV Courts are specialized Supreme Court Parts developed to better serve families in crisis. Our current court structure often requires domestic violence victims and their families to appear in multiple courts (in front of multiple judges) to address their criminal, family, matrimonial and other legal problems. IDV Courts, by contrast, are dedicated to the idea of "One family-One judge," allowing a single judge to hear related cases involving domestic violence victims and their families. The goal of the court is to change the way the justice system treats families and children by promoting more informed judicial decision-making, creating consistency in orders of protection and reducing court appearances, as well as providing enhanced services to victims and ensuring defendant accountability.
Moreover, as one MAJOR problem - creators of such a system know that, if a court does not have jurisdiction over a case (and there is no such thing as an IDV court in New York state laws, so there IS no jurisdiction in IDV courts or "parts"), constitutionally, a person may not legally give consent to such non-existing jurisdiction.
Making all decisions out of such an IDV "Court" void - not void-ABLE, but void, as in ZERO, NULLITY, ZILCH, NOT EXISTING AT ALL.
Which, in turn, makes creation of such courts and financing them with taxpayer money - a huge waste of taxpayer money, on top of being a gross miscarriage of justice.
Once again, you simply may not legally review/try together these vastly different - jurisdictionally, too - cases:
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So, there are grounds to ask a federal court for a declaratory judgment declaring IDV "Courts" in New York what they very obviously are - unconstitutional.
