Request for the NY Commission on Judicial Conduct to Investigate Judge Wiggins for Bias in his Decision on the Challenge to the Marriage Equality Act – Part III

 

Part III. Go back and read Part I or Part II.

Here are some of those reasons. Though the Plaintiffs want the Marriage Equality Act declared null and void, their lawsuit makes no legal or constitutional arguments against the human right of same sex marriage; the entire lawsuit, much if not indeed all of it bogus, is based on procedural matters. The Plaintiffs in their Complaint fraudulently allege that they are done “irreparable harm” by the Marriage Equality Law. Schneiderman in the Memorandum of Law writes that the Plaintiffs do not have standing to bring this lawsuit, because they can not legally demonstrate that any harm has been done them individually; Judge Wiggins in his Decision leaves that legal issue unremarked. Though the Plaintiffs in their Complaint know enough not to use so coarse an anti-gay pejorative as “Faggot!” in their written language, their lawsuit is an extension of the sort of anti-gay behavior that has school bullies calling classmates “Fag!” and then shoving them forcefully up against a school hallway locker. Consider, for example, that children being raised by gay parents are afforded legal and economic protections by the Marriage Equality Law, and consider too that the Plaintiffs want the Marriage Equality Law declared null and void. The theocratic, maliciously anti-gay Plaintiffs manifestly do not give a damn about the welfare of those children or of those children’s parents. Consider that Plaintiff Rabbi Leiter on his Torah Jews for Decency website calls gay human beings “deviants” and derides their complaints about discrimination as “sob stories.” Consider that Plaintiff Reverend McGuire during radio broadcasts says things such as that the out gay Senator Thomas Duane and the out gay Assemblyman Jason O’Donnell are legislators “taking a position against God’s word” and that “if they die without Jesus Christ” they will “die without a home in heaven and an eternity in hell.” That is to say, the Plaintiffs seek to impose religious strictures against same sex marriage on the entire population, though the United States at present is not a theocracy. Surely a professional judge in New York State today would want to avoid even the appearance of favoring an anti-constitutional theocratic imposition of religious strictures on an entire population.

 

 

Judge Wiggins, however, in his Decision openly attempts to mock and to scorn Governor Cuomo and Attorney General Schneiderman, giving political ammunition to the gay-bashing Plaintiffs, where he writes:

“It is ironic that much of the State’s brief spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislative permeates this entire process.”

Whose arm does Judge Wiggins allege that Governor Cuomo “twisted”?  On the Senate floor, Republican Senator Mark Grisanti explained his decision to vote in favor of the Marriage Equality Act, saying that while his Catholic upbringing had taught him that same sex marriage is prohibited, he does not think that there is, in civil law, any valid argument against same sex marriage. Grisanti said that over a period of months, he met with groups for and against the proposed law, that he read umpteen relevant documents, including legal documents, and that that was the legal conclusion he reached. It was touching, actually, to observe that this elected representative, who had been a theocratic anti-gay bigot, evolved to respect for gay human beings’ inalienable rights.

Those that either 1) accuse Senator Grisanti of some evil thing in deciding to vote for the Marriage Equality Act and/or 2) accuse Governor Cuomo of twisting Senator Grisanti’s arm illicitly to obtain a vote in favor of the Marriage Equality Act are disregarding and insulting Senator Grisanti’s character and intelligence. The question arises, why is Judge Wiggins accusing Governor Cuomo of “twisting” the Senators’ arms?  Moreover, the separation of powers does not mean that the Executive and the Legislative branches never interact; it means that they are to exert a balancing influence on each other. What Judge Wiggins apparently was alluding to when he wrote that “the State’s brief spews sanctimonious verbiage” was Schneiderman’s reminders in the brief of what the law does and does not allow a judge to do vis-à-vis these Plaintiffs’ allegations. Schneiderman writes, for example, apropos of the message of necessity “The Court of Appeals has expressly held that a message of necessity is not subject to judicial review. (Maybee v. State of New York).” Judge Wiggins should have noticed that such language is not “sanctimonious verbiage on the separation of powers” but rather a reminder of settled law, where the Plaintiffs have made allegations in apparent ignorance of the settled law.

Yes or no, is it true, as Schneiderman wrote, that “The Court of Appeals has expressly held that a message of necessity is not subject to judicial review”?  The answer is, yes. This means that regarding the message of necessity, the Plaintiffs made a bogus allegation. Be it noted in passing that the Plaintiffs’ attorney, Rena M. Lindevaldsen, is a professional theocratic political gay basher and that her organization Liberty Counsel is comprised of a gang of anti-gay theocratic thugs. Lindevaldsen ignores science on human sexuality to make such public declarations as that “Satan” causes people to become gay. We evidently have no option but to conclude that Ms. Lindevaldsen is so obtuse and brainwashed that, though she is an attorney, it has never occurred to her that in a court of law, she would experience a certain degree of difficulty in proving legally that “Satan” causes people to become gay. She evidently was too ignorant of law to realize that she was presenting a bogus allegation on behalf of her clients as concerned Cuomo’s message of necessity. Be it further noted that the Plaintiffs’ attorney Lindevaldsen evidently also did not realize that Attorney General Eric Schneiderman was not a proper party to this lawsuit. The reasons why Schneiderman was not a proper party are given in Schneiderman’s brief, which Judge Wiggins accuses of spewing “sanctimonious verbiage.” Judge Wiggins obviously understood that the Plaintiffs’ allegations against Schneiderman were without merit, as he dismissed the case against Schneiderman. Though the Plaintiffs’ complaint is loaded with bogus allegations, Judge Wiggins elected never to criticize the Plaintiffs and to lambast Governor Cuomo and Attorney General Schneiderman.

The other matter discussed at length in Judge Wiggins’s Decision involves the Plaintiffs allegations of violations of the Open Meetings Law. Judge Wiggins ruled that he did “not have sufficient facts to determine” the matter but that the allegation of a violation of the Open Meetings Rule is justiciable and that the case may therefore proceed on that narrow basis. I have reviewed the relevant statutes, the Plaintiffs’ allegations and Judge Wiggins’s Decision and concluded that Judge Wiggins has, strictly from a legal point of view, wrongly decided this case.

Schneiderman in his Response gives a detailed legal explanation — with precedent cases cited — at the end of which one understands that the Plaintiffs’ allegations regard, as before with the message of necessity, settled law. With his decision, Judge Wiggins throws political red meat to the theocratic gay-bashing Plaintiffs without at all addressing or analyzing Schneiderman’s defense regarding the allegations concerning the Open Meetings Law. The question boils down to whether a group of Senators from one party may meet in private, and invite one or more guests to the meeting, with the private meeting remaining exempt from the Open Meetings Law, irrespective of the party affiliation of the invited guests. The law says that they may. In one case, Warren v. Giambra, a judge improperly decided that the Open Meetings Law had been violated when eight Democratic Legislators met with a Republican County Executive. Schneiderman gives a thorough explanation of how Warren v. Giambrawas wrongly decided, notes that Warren v. Giambra “is not controlling” and furthermore gives precedent cases showing that this is settled law. Judge Wiggins entirely ignores, and fails directly to comment on, Schneiderman’s thoroughgoing treatment of this legal topic.

It must be noted that even in Warren v. Giambra, though the judge ruled that there had been a violation of the Open Meetings Law, the actions taken during the meetings between the Democratic Legislators and the Republican County Executive were not undone. In other words, 1) the legal prospects for a finding that the Open Meetings Law was violated are slim, and 2) the prospects that the Marriage Equality Act would be voided, if the Open Meetings Law were found to have been violated, are as good as non-existent. Judge Wiggins knows this.

With his Decision, Judge Wiggins threw political red meat to the Plaintiffs, who have the power to help to further his personal professional fortunes in rural, anti-gay-dominated Livingston County. The Plaintiffs are now running around with the political red meat that Judge Wiggins tossed them.  Liberty Counsel’s Founder and Chairman Mathew Staver published the following phony baloney on the Liberty Counsel website. Notice how he echoes Judge Wiggins’ language about “arm-twisting.”

“This is a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process. Discovery will show that the arm-twisting and closed-room deals to force passage of this same-sex marriage law were defiant violations of the Open Meetings law. When government operates in secret and freezes out the very people it is supposed to represent, the entire system fails. The law should be set aside, and the process should begin again to allow the people a voice in the process.”

Staver’s claim that the people did not have a voice in the process that led to passage of the Marriage Equality Act is blatant meretricious bullcrap. The Plaintiffs even state in their Complaint document that over a period of time, they actively engaged in communicating with lawmakers about the proposed legislation. One might imagine that after Plaintiffs Reverend McGuire and Reverends Motley sent Republican Majority Leader Dean Skelos a letter saying that if the Marriage Equality Act passed, “the pound of flesh will come from the Republican majority,” that Senator Skelos did not appreciate such arm-twisting coming from theocratic lobbyists. It should be noted that in the lead-up to the vote on the Marriage Equality Act, Plaintiff Reverend McGuire of New Yorkers for Constitutional Freedoms repeatedly asserted that what had been “missing from the debate” was that gay people can pray to Jesus and thereby be made heterosexual. His organization New Yorkers for Constitutional Freedoms distributed weekly church program inserts containing superstitious, non-scientific stuff-and-nonsense against homosexual human beings and urging pastors and congregations to help to impose religious strictures against same sex marriage on the whole population of New York State.

These Plaintiffs are the last people to whom Judge Wiggins should have evidenced bias in his written Decision, and of course, as a professional judge, he should not ever evidence bias in any of his Court documents. It would be profoundly disturbing if an Acting Supreme Court Judge had thrown political red meat to Plaintiffs (who documentably are theocratic political gay bashers) in order to enhance his chances of being nominated to the Supreme Court in his county.  No judge should ignore that a Plaintiff has presented a bogus allegation while lambasting a Defendant Governor who is innocent of violating the law, but in his Decision, Judge Wiggins has done exactly that.

Many kind advanced thanks to the New York Commission on Judicial Conduct for its consideration of this Complaint.

Sincerely,

Scott Rose

Part III. Go back and read Part I or Part II.

New York City-​based novelist and freelance writer Scott Rose’s LGBT-​interest by-​line has appeared on Advocate​.com, PoliticusUSA​.com, The New York Blade, Queerty​.com, Girlfriends and in numerous additional venues. Among his other interests are the arts, boating and yachting, wine and food, travel, poker and dogs. His “Mr. David Cooper’s Happy Suicide” is about a New York City advertising executive assigned to a condom account.