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Legal Briefs: ‘Legal Myths vs. Reality’

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because an informed citizen is always the most successful citizen:

MYTH: All New York State government employees’ retirement information is confidential.

REALITY: The New York website reports on state government spending.  Among the reported data is all pension information for public sector workers statewide.  

Since 2014, the Court has ordered that teacher pension information must be disclosed, among other employees’ disclosures.  

So far there is only one exception to this disclosure. New York City police officers rely on an older court decision that ruled that addresses of pensioners could be withheld.  Therefore, they are refusing to disclose the information on retired police pensioners. 

The request that the Empire Center for Public Policy made in 2010 is for names and amount paid in pensions, not addresses.  The argument for non-disclosure of police pensions is that retired police officers could be targeted by criminals if information is disclosed.  Empire argues that if an employee is paid by the public, the public is entitled to know what (s)he is being paid by pensions or wages. 

MYTH:  The conduct of all judges in New York is subject to an ethics review, and discipline if appropriate, including in the case of claims of sexual misconduct.

REALITY: In New York all state judges from Justices of the Court of Appeals to Town Justices are subject to review of complaints made to the NYS Judicial Commission on Judicial Conduct.   The Commission will review all claims and act accordingly.  Every state in the country has a form of such a Commission.  However, all citizens and residents of the US are subject to a second Court with its own rules and procedures, that is, Federal Court. 

Although federal judges have a code of conduct that they must follow, there is no commission to handle claims that a judge has not followed the code.  All complaints are handled by the judges themselves in-house, and any complaint and investigation is closely guarded by the judges from public disclosure.  

In 2016, more than 1300 such complaints were charged throughout the US, but only four were investigated.  Fewer than one federal judge per year is criticized by colleagues for misbehavior.  Legislation has been proposed to create a judicial inspector general who would be charged with investigating and reporting on allegations such as those levied against now Justice of the US Supreme Court Brett Kavanaugh.  To date, no such commission has been created and the judges themselves continue to handle claims against their colleagues. 

MYTH: All laws live forever unless changed.

REALITY:  With respect to length of life of a law, there are two types of laws.  One type lives forever unless changed by the legislature.  The other is limited in time. The length of life of a law depends on how the law is written. 

An example of this is Kendra’s Law.  This law concerns mentally ill people who could be a danger to themselves or others.  The law permits court-ordered outpatient treatment for those who are believed to be in need of such treatment and who will not seek it by themselves.  The law permits mandatory outpatient treatment. 

Reliable studies have found that Kendra’s Law is helpful in these areas, among others: reducing serious violent crime; fewer and shorter psychiatric hospitalizations; decline in the probability of arrest; higher social functioning and less stigma.

The issue now is that the law automatically expires every five years.  It has been at least five years since the law was last enacted. Despite continuous efforts of a state legislator during the last ten years to make the law permanent, it has not been made permanent.  It could, in fact, disappear entirely if not soon renewed.  

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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