Tag Archives: Andrew Cuomo

Good faith is an element in every contract

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[Update May 2. Here is the reply to my question to the Maryland Attorney General’s office:]

Your email to Attorney General Brian Frosh has been referred to me for response. You have inquired into whether the Maryland Attorney General could assist with the enforcement of contracts between authors and publishers. Under a valid contract between and author and a publisher, the parties are legally required to perform certain agreed upon terms. If one party fails to perform, the other can sue to enforce the agreement.  Under Maryland law, there is no authority for the Attorney General to get involved in such a contract dispute.  The dispute is between the two parties to the contract and the remedy is for one party to file an action against the other.
Please let me know if you have further questions.  Jenny Baker

Contracts between authors and publishers don’t get treated as real contracts. In the judicial system, the author is generally treated as “a very, very small business.” So I was told several years ago as a member of the National Writers Union. While in the NWU I chaired the DC chapter for a couple of years; I also served as a Grievance Counselor, trying if possible to help members who had a problem with their publishers. Most often the problem was that they did not get paid.

The first question was ‘Do you have a contract or [something, anything, in writing]?’ If yes, the next question was ‘Can you send it to me?’ One of the services offered by the NWU was contract advice. I was not a Contract Advisor, but the CAs were also there to help; they tried to see to it that the author stuck out for a decent contract, bringing another pair of eyes to rights and royalties.

The trouble was that even a writer with a clear-as-glass contract had little way to enforce it.

I cannot go into detail on individual examples/cases. But I can say that my premise that a contract is a contract, even where one party is a small-time ham-and-egger, started to feel a bit naive. An author’s contract would generally be written by the publisher. It could have an unequivocally clear schedule for reporting sales and paying royalties–obligations of the publisher. But if the calendar date rolled around and there was no royalty check from the publishing company–then what?

Well, in the State of New York, when Andrew Cuomo was state Attorney General– nothing. Too bad I can’t go into details. Suffice it to say that a state AG, or the office of a state’s attorney, does not come banging on the door of a deadbeat publisher, demanding that he cough up or else. There’s no SWAT team for scofflaws in publishing. The contract might as well not have existed. Mutual agreement, mutual consideration, formal written expression all in place–the basis for contract law itself. And they might as well have been the Rock of Gibraltar recreated as whipped cream, sliding into the ocean.

NY AG Andrew Cuomo

NY AG Andrew Cuomo

Many journalists and other writers know something about the above picture, enough so that they don’t choose to freelance. Theoretically, being on the staff of a recognized periodical offers protections that an isolated freelancer does not get.

All this brings me to what sounds like an interesting book from Barbara Feinman Todd, fittingly titled Pretend I’m Not Here. Feinman Todd was a freelancer with more position than most. Among other professional activities she was a ghostwriter for the Washington Post’s Carl Bernstein, Benjamin Bradlee, and Bob Woodward. She also ghosted Hillary Clinton’s It Takes a Village (1996).

According to an interesting article by Clark Hoyt, the book–which I have not read yet–recounts that Feinman Todd got burned by Woodward. The story is that the author confided to Woodward that Hillary Clinton bolstered herself psychically by having imaginary conversations with Eleanor Roosevelt among others. Instead of keeping this item secret as promised, Woodward used it–prominently–in his own book on Bill Clinton’s presidential campaign. He also passed along copies of two transcripts Feinman Todd allegedly gave him to other WaPo writers, for their work on Hillary Clinton’s 2016 presidential campaign.

Woodward denies Feinman Todd’s account, according to Hoyt. As a supporter of authors I think Mr. Hoyt’s article makes a point of bigger interest than the personalities involved:

Woodward’s efforts to report the story could explain why Feinman Todd suddenly found herself on the outs with the Clinton White House, which ordered the publisher of “It Takes a Village” to withhold her final payment. 

Bill Clinton’s White House “ordered the publisher” to withhold the author’s last payment on a book she ghosted for first lady Hillary Clinton?

1996, Simon & Schuster

1996, Simon & Schuster

Why, absent a national security concern, does a White House get to tell a publisher what to do? And of all things to command, why does it get to tell a publisher not to pay an author? Admittedly, that particular command might go down easy; see above on how publishers pay. But however willing the publisher might be to entertain the order, as represented it is still an order to violate a contract. They used to call it breach.

That wasn’t the only one, according to Feinman Todd:

And, when the book came out, Feinman Todd was given no credit, despite a requirement in her contract that she be included in the acknowledgments.

Ghosters can get shafted. The ghostwriter is usually supposed to be invisible, or at least not too conspicuous. Just the same, if the publisher failed to honor a contract requirement, the author had grounds to take the publisher to court. And she would have had more position than most to do so. The controversy actually drew some attention at the time. Simon & Schuster exposed its lack of self-respect when it caved under a directive from the Clinton White House. (Despite my concern with the larger issues, I admit it would be interesting to hear how the order was worded. And who delivered it, and to whom. And when. And where. Reading this stuff is like reading that the CIA could direct a university to hire one of its own as a full professor.)

For the record, my own view is that an author shouldn’t have to sue for redress. Breach of contract harms the public. It should be handled by a public entity, as in the state’s attorney’s office. Reading about the actions of a major publisher in 1996 raises the issue again.

 

 

 

NY State–Carl Paladino, the World Trade Center, and eminent domain

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 New York State–Carl Paladino, the World Trade Center, and eminent domain

Paladino

First, from the transcripts:

CARL PALADINO (R), NEW YORK GUBERNATORIAL CANDIDATE: “This is Carl Paladino. As governor, I will use the power of eminent domain to stop this mosque and make the site a war memorial instead of a monument to those who attacked our country.”

(video clip, Rachel Maddow Show, MSNBC, July 29, 2010)

 

CNN INTERVIEW WITH CARL PALADINO, REPUBLICAN NEW YORK GUBERNATORIAL CANDIDATE INTERVIEWER: RICK SANCHEZ SUBJECT: NEW YORK GUBERNATORIAL RACE; PROPOSAL TO BUILD MOSQUE NEAR WTC SITE TIME: 3:00 P.M. EDT DATE: WEDNESDAY, SEPTEMBER 15, 2010:

“MR. SANCHEZ: You say that you will use–here, let me read from your letter once again. You’re right. This is the point that you’re making and you’re correct, you’ve been very consistent on this.

“The governor”, you write, “has a legal power to use the state’s right of eminent domain to seize this site and make it a memorial of which we can be proud. That is exactly what I will do if I’m elected governor.”

So, as governor, you will go in there and take this property away from this people and turn it into a memorial because they want to use it as an Islamic cultural center.

MR. PALADINO: No. Let me correct on that, okay. That was a partial misstatement on my part. We will go in there and we will put a restrictive covenant on the property and all of the property in the Ground Zero site. Ground Zero for me is the extended site over which the dust cloud containing human remains traveled. That Ground Zero site will be protected in the memory of those who fell at the World Trade Center, as well as the memory of the thousands and thousands of soldiers, of American and allied soldiers, that fell in the ensuing wars, and 150,000 troops we still have over there defending our right to speak like this today.”

 

[continued]

“MR. SANCHEZ: Okay. But you just said the property for which the dust cloud–

MR. PALADINO: I’m sorry. I missed the point. Yeah, let me explain that. Eminent domain is a very broad term. You can actually take property or you can just put a restriction on property. In this case it would be the restriction on the use of a property that a zoning board would consider the issue when proposed use is introduced for any property within the district. And if the zoning board determines that it is an affront in any way to the American people to those memories, then it would be rejected, the use would be rejected.”

 

For more than one reason, New York Republican gubernatorial candidate Carl Paladino was sagacious to amend his initial campaign promise to ‘seize’ the World Trade Center site under eminent domain. For one, the Islamic Center to include the mosque and ecumenical chapel for religious use is not planned for the World Trade Center site itself but for a site two blocks away. As one attorney expert in eminent domain cases comments, seizing ‘Ground Zero’ would hardly prevent a mosque from being built blocks away. Widening the terrain to that hit by ‘dust’ from the attacks of Sept. 11, 2001, parries this point—although it also includes all of Lower Manhattan.

 

For another, hearing a GOP candidate for governor of the nation’s third-largest state aggressively proclaim the use of eminent domain to seize property—“we do it every day in zoning”—would hardly sit well with Paladino’s ‘tea party’ constituency.

 

Telephone and emailed questions and requests for comment placed with the Paladino campaign, whose slogan is “Paladino for the people,” have not yet been answered. Paladino’s campaign website further emphasizes, as Paladino said in the Rick Sanchez interview, that Paladino’s use of eminent domain around the World Trade Center site would be restricted–“but not by taking the property.”

 

Still, Paladino’s track record includes some aggressive threats to use eminent domain:

[transcript:]

“MR. SANCHEZ: So you believe that a government–a government has a right to make a decision, a property rights decision, based on its own sensibilities, how its affected. How would that stop, in the future, someone from–

MR. PALADINO: We do it every day in zoning–we do it every day in zoning law.

MR. SANCHEZ: But how–but in this case you’re–

MR. PALADINO: Zoning laws–

MR. SANCHEZ: But this case it’s a First Amendment argument that you’re deciding.

MR. PALADINO: No, we’re not.

MR. SANCHEZ: Aside from sensibilities, if the Constitution says we have a right to worship as we please, where we please, how can you go in and say I don’t want you worshiping that way there because it affects my sensibilities?

MR. PALADINO: I’ve clearly said to you that it’s my opinion that this is not a question of freedom of religion.”

 

Even after widening the geography to that covered by the “dust” from the attacks of September 11, 2001, and restricting the use of eminent domain to “covenant” rather than seizure, Paladino’s rhetoric raises issues that should concern his ‘base.’


The big one, of course, is the First Amendment. [ O’Donnell]

 

Even with the limitations or after-the-fact qualifiers, Paladino’s barn-burning rhetoric basically boils down to saying that as New York governor he would use “any means”—his words—to prevent the ‘mosque’s’ being built, including the power of eminent domain.

Setting aside any other questions, a key legal question for a lay person is, could he really do that?

Any exercise of the power of eminent domain must be based on a legitimate public purpose of the condemning authority, in this instance the State of New York. That fundamental principle raises the immediate question whether preventing a ‘mosque’ at or near the WTC site could be a legitimate public purpose.

Most lawyers would argue, to the contrary, that the expressed purpose of preventing a ‘mosque’ is a direct violation of the First Amendment.

Attorney Thomas M. Olson, of the firm of McKirdy & Riskin in Morristown, N.J., interviewed by telephone, has represented clients in numerous cases confirming that indeed First Amendment issues can arise in relation to eminent domain. Whether the First Amendment issues outweigh other concerns varies from case to case, Olson says, but the First Amendment does not automatically go down to defeat just because the state—at the federal or state level—advances other interests. Boiling it down to lay terms, sometimes the church or cemetery wins.

 

Side note: Purely anecdotally, it used to be a truism that Constitutional Law was the law school course that law school students took least interest in, the one on which they typically placed least priority. The constitution being the terrain only of future constitutional law profs or a smaller handful of future Supreme Court Justices, the conventional wisdom went, Con Law was perceived as offering little payback to the prospective lawyer who wanted to go out and land a well-paying job at one of the big burnout law firms. Indeed, in this (surely) over-cynical and oversimplified view, a well-grounded regard for the constitution was something of a handicap to be reticent about, not a selling point in a job interview with Gordon Gekko.

 

Back to the phone interview–Olson clarifies that the government does have power to use eminent domain in regard to private property—but not for free: when a property is condemned, for example, the property owner still has to be compensated. The government does have power to seize land for public use—a freeway, a school. But whether the government has the right in a particular case depends on what purpose they would seize it for. An unquestioned public use such as a school is much more solid ground for eminent domain; a quasi-private use such as redevelopment is more of a gray area.

Olson’s firm, McKirdy & Riskin, generally represents property owners in eminent domain matters in New Jersey. The religious issue, “a very interesting issue,” Olson comments, “has never been finally resolved by the courts” in an across-the-board way.

When you want to run a road through a church, it can be difficult. There are rights on both sides. A church versus a cemetery might be even tougher.

To deal with the First Amendment issue, Paladino’s rebuttal is simply to deny it:

“MR. SANCHEZ: They may very well be, sir, and I understand your perspective. But what you can’t get away from, and I guess what I’d like to ask you because we’ve got to get a break in and we’ll continue but maybe it gives us a chance to think about this a little bit. How do you get away from the fact that there is a constitutional argument here that seems to say that you can’t deny someone–

MR. PALADINO: There is no constitutional argument because it’s not freedom of religion.

MR. SANCHEZ: It’s not? Okay–

MR. PALADINO: If it was freedom of religion they’d put their mosque someplace else.

MR. SANCHEZ: Okay. Let’s continue that part–

MR. PALADINO: And enjoy their religious experience.”

 

According to Paladino, the building is “ideological,” not religious. Set aside the point that ideology might be protected by the First Amendment and that religious denominations have their ideological components. Set aside that the building is being called ‘ideological’ and is being opposed because some people do not like it. Set aside the point that people could be prevented from enjoying their religious experience anywhere other people were minded to prevent it, on whatever grounds. Set aside even the sad possibility that Paladino may not consider Islam a religion to begin with. Even giving him all these set-asides, his argument pretty much boils down to a statement that the building is not religious because he (speaking ex officio as hypothetical governor) says it’s not.

It is a given that media attention to Paladino’s statements will dwindle because nobody foresees that he poses much threat to Andrew Cuomo. But his is a worrisome train of thought for a chief executive, and should be seen as such by tea partiers as well as others.

Cuomo, Ackerman

A better argument for Paladino to have made as gubernatorial candidate would have been the common-sense reminder that the First Amendment is not absolute and government can abridge constitutional freedoms, within reasonable limits, to serve other legitimate purposes such as curing blight to foster the health, safety and welfare of a community. 

Back when he was talking about ‘seizing’ the property, he could also have reminded the audience that any property seized would have to be paid for. So the taxpayers would be on the hook for any property abruptly picked up by the State of New York, including the footprint of the twin towers.

 

Back—again—to when Paladino was talking about seizing the World Trade Center site, it is intriguing to note that he was talking about using eminent domain in order to create a “public memorial.” This would be his concept of the public use under which eminent domain could be used—a memorial, rather than a road or bridge, etc. A memorial park might indeed be such a public use, or public purpose, but once again it would have to be paid for. It would be interesting to run this one by the deficit hawks among the tea partiers. Fair market value for the property, as paid by the State . . .?

 

Another legal issue, perhaps a future project for legal research, is whether New York State has power to seize property owned by the Port Authority of New York & New Jersey for any purpose. 

 

btw a memorial on the 9/11 site is already under construction. Paladino’s proposal to exercise eminent domain ‘restriction’ or ‘covenant’ could overlap significantly with—i.e. come into conflict with—the memorial underway. Thus the argument of a legitimate public purpose would have to be weighed against, again, fiscal costs–the large public maintenance obligation and presumably the loss of tax revenue.

 

But the fundamental concern is that eminent domain must have a legitimate public purpose. The purposes of government are defined by the constitution and by statute. A governor cannot simply declare that something is a public use in order to justify taking private property. This is a Tea Party candidate?

Final note: The Corpus Juris Secundum, the encyclopedia of American law, devotes 752 pages to eminent domain, plus suppl., give or take, which is what eminent domain is all about. See vol. 29A.

 

Pages 167 and 168 of the CJS deal with cemeteries as public use of land. Page 189 deals with cemeteries as property appropriate for the exercise of eminent domain.

 

The CJS makes clear that land, including private property, may be taken by the government—federal or state—for public use, with two conditions: 1) the use has to be public, i.e. open to all, as for example roads and bridges; and 2) the property owner has to be fairly compensated (paid).

 

Any land taken for use as a cemetery or, presumably, as a memorial, must be for public use. It cannot be an exclusionary private cemetery.

 

[This article, deleted by the system among hundreds of articles and blog posts in summer 2011, is re-posted using archives and Word files.]