"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).
“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.
"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.
“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.
Friday, December 26, 2014
Attorney Grievance Committees unlawfully operating as collection agencies on public dime - is it any wonder why people are leaving the state of New York to leave behind the corruption, abuse of power and waste of their taxpayers' money?
I received just before Christmas from the Attorney Grievance Committee a request to confirm whether certain documents, including a letter from a certain state organization threatening me to turn a money judgment into the Attorney Grievance Committee "for collection" are true and correct documents.
Apart from the fact that:
(1) enforcement of money judgments must be a separate court action in a different court than the disciplinary proceedings, and preceding the disciplinary proceedings,
(2) that no such enforcement proceeding was brought against me;
(3) that the money judgment (sanctions unlawfully imposed upon me by Judge Carl F. Becker in retaliation for suing him, after I sued him) was satisfied through a court escrow over a year before the threat that the threat
the interesting fact remains that the Attorney Grievance Committee is now discharging the functions of a collection agency - functions that the Committee is not authorized to do by any law or regulation.
What is also interesting is that the Attorney Grievance Committee is continuing to prosecute the fraudulent Charge IV claiming that I did not obey a lawful order of the "tribunal" (that would be Judge Becker who sanctioned me in retaliation for suing him), when I obeyed that unlawful order 2 years before the disciplinary petition was brought.
I guess, Mary Gasparini is too busy giving lectures about attorney ethics at CLE seminars to do due diligence for the job that New York taxpayers (including me) are paying her to do.
Of course, judging by how disciplinary proceedings are handled, due diligence - or the law for that matter - has nothing to do with what is going on, it is an order from up above to destroy me no matter what, the truth, the law, the Constitution and the due diligence be damned - and attorney Mary Gasparini of the Attorney Grievance Committee, NYS Appellate Division 4th Judicial Department, apparently and in my personal opinion, cares more about her own job security than about the truth, the law, the Constitution and the due diligence combined (or about such trifles as common decency or waste of public money on fraudulent and frivolous political persecutions of an attorney).
I raised in the state courts handling the issue (NYS Appellate Divisions, 3rd and 4th Departments) the issue that Attorney Grievance Committees in New York are not authorized to operate as collection agencies, as they habitually do. The 3rd Department made an ex parte order of transfer of the case to the 4th Department, over 100 miles away from where my witnesses are, making it practically impossible for me to get people to testify for me, and is stalling access to papers upon which it granted the ex parte order.
The 4th Department denied my cross-motions raising federal constitutional issues without an explanation, and reacted to my motion to vacate that decision and give me a reasoned answer, which is what I am entitled to as a matter of due process of law, with yet another similar decision without an explanation, now accompanied with an anti-filing injunction, without a notice to me or opportunity to be heard on the issue why my access to court , a fundamental right, should be restricted.
To tell me that this is somehow "the rule of law" is to insult my own, and anybody else's, intelligence. It's Star Chamber, pure and simple, and the court is frustrated that I delay my fate that was decided before the disciplinary petition was even filed.
I wrote in this blog enough as to how the federal court operates in my district, blocking any constitutional issues, including the one I raised about Attorney Grievance Committees operating as collection agencies without any authority under the law - it simply tossed the lawsuit as frivolous, and, as I said before, this shining example of unlawfulness will be included into a separate book about constitutional issues I raised that were tossed by courts.
I understand that no matter what the Attorney Grievance Committee does against an attorney marked for destruction, such as myself, who did the unthinkable, criticized judges for misconduct, and no matter whether actions of the Attorney Grievance Committee will be lawful or unlawful, fraudulent or not, the Attorney Grievance Committee or its attorneys or members will never be prosecuted, and the whistleblower like me who points out that certain actions of the Attorney Grievance Committee are not lawful, will be marked for destruction and destroyed.
And I understand that public money, including my own hard-earned money paid as a taxpayer, will be used for that destruction, in the name of protection of the public, no less.
So, now the public money is being used to enable Mary Gasparini, of the Attorney Grievance Committee for the NYS Appellate Division 4th Judicial Department, to operate as a debt collector without any statutory authority to do that.
And Mary Gasparini, as well as her supervisors, apparently have no qualms using that public money for such purposes.
No wonder there is such a reported exodus out of the State of New York - the state where the taxes are high, the job market is bad, and the collected taxes are used on illegal adventures such as collection of a satisfied money judgment by Attorney Grievance Committees having no right to engage in debt collection.
Last years' report indicated that during the last decade people leaving New York State took with them $45.6 bln in personal income from the state's economy, which was close to 7% of the combined income of New Yorkers reported in 2010.
This years' report indicates that the exodus from New York continues, and I support such exodus wholeheartedly.
Only when the New York state budget will have no money paying people like Mary Gasparini for lecturing at CLE seminars and engaging in debt collection instead of doing her job diligently and in good faith, maybe something will then start changing in New York.
This year's report indicated that people continue to leave New York state.
It is time the state of New York should stop treating its taxpayers like dirt and starts paying attention to where abuse of power and waste by public officials hurts the state economy.
Actually, what I am experiencing, will make for a nice book on legal ethics/ primer into the legal profession, for pre-law and law students. I have enough documentary materials for that for sure, and at least such a book will describe the real world of legal ethics, or rather, how the rules of legal ethics are used as a sword against critics of any misconduct of public officials instead of for protection of the public, as is their declared purpose.
So, if I am relieved of my license in order to make me less credible as a critic of the judiciary, first of all, as I wrote in this blog earlier, I will engage in providing services in arbitration and mediation, an unregulated activity in the State of New York.
Plus, I will then have the time to write those books - and since they will be based on documentary evidence and legal authorities, I don't think taking of my law license will take from their value or credibility.
Monday, December 22, 2014
A book is planned mapping constitutional issues that state and federal courts considered frivolous in litigation that my husband and/or I handled
My husband and I have been through a lot from the time that I was admitted to the bar in 2009.
The bar and the judiciary viciously opposed doubling of our legal services, which one judge called "double-teaming" (as in: "I hate their double-teaming"), mostly in criminal and Family Court proceedings.
For some local attorneys, my entry into the legal profession increased competition since my husband mostly handled cases outside of Delaware County, and I started to handle cases in Delaware County and adjoining counties, thus taking away business from other attorneys. They hated it and openly declared promises to "run them out of town".
For many local judges, in me they acquired a pain in the ass since, despite being a beginner attorney, I was trained by one of the best lawyers in the area for many more years than my law school training, had three advanced degrees, including an advanced degree in teaching English, was and remain independent and mature-minded, stubborn, well-trained and well-researched in civil rights litigation, and, having been born and raised in a communist country (Russia), had a belief to uphold and enforce the rule of law.
I am not a person with a "whatever you say, Your Honor" mentality, who can be taught to scrape and bow to the so-called "authority", even when that authority is clearly wrong and is violating the law, the way I, a well-trained and well-researched individual with a law degree, understand that law. Is this independent streak causing the demise of my career in law? If it will, it will make for another good book, or two.
I understand that nobody likes criticism, yet attorneys, in zealously protecting their clients' rights, must criticize whoever violates their clients' rights, be it the judge or any public official, and must do it as often as often violations of those clients' rights occur.
So, the judicial system "double-teamed" with powerful attorneys - to get rid of us.
In 2011 they disbarred my husband, thus depriving the poor and under-served population of Delaware County of his services, including pro bono services that he generously provided to a lot of people, who could come to him or call him, before his disbarment, at any time and many of them got free advice from him.
After my husband's wrongful disbarment, without a hearing, after 37 years of service to his community, I tried to carry his torch as much as I could, providing free advice and free legal services as much as I could.
Two years before my husband's disbarment a certain group of local public officials started to prepare grounds to disbar me, too.
From illegal (and dismissed) parking tickets in front of the courthouse where everybody parks, but only I was targeted as a "big-mouth attorney", to illegal (and dismissed) child neglect proceedings by people whose conflicts of interest will take a book to fully describe, and I, most likely, do not know the full extent of the conflicts which still keep emerging, to the judge who was at the head of the campaign to stop our "double-teaming" and "run me out of town" and whom I sued (Delaware County judge Carl F. Becker) assigning himself to the cases where I appeared as attorney or party and sanctioning me for raising constitutional arguments, to rumors being spread out all across New York courts, from local to the Supreme court level that I am either already disbarred or about to be disbarred, urging potential clients not to come to me - we had it all.
Both my husband and I tried to litigate multiple violations of our constitutional rights by state and local officials in federal courts. We quickly learnt that federal courts are joined with the state courts at the hip and fiercely protect the state public officials from adjudication of misconduct, by "local rules", various judicially created doctrines and the so-called "judicial discretion" to punish litigants for frivolous conduct.
Over the years of litigation I've learnt to expect that every constitutional argument that I am bringing in state or federal court, no matter how well researched, reasoned or supported by legal authorities (even though there is no requirement to support constitutional arguments by legal authorities, as the only legal authority such arguments require are the U.S. Constitution and your own reasonable interpretation of it, and whether it is reasonable is for the jury and not the federal judge to decide), will be rejected, ridiculed and sanctioned.
Finally, I decided to pull into a book and publish the following:
(1) the constitutional issues that state and federal courts declared frivolous in cases that I handled for myself and/or my clients;
(2) the legal authorities and reasoning I used to support my argument;
(3) the reasoning of various courts rejecting my constitutional arguments, where available (because some courts rejected my constitutional arguments without any reasoning);
(4) the names of judges who rejected my constitutional argument, their biographies and appearances of conflicts of interest that I was able to find, and their history of handling other constitutional arguments, as well as their history of retaliation for criticism;
(5) the value of the arguments I was bringing, not just for me, my family members or my clients, but for the entire American public.
I hope the book will provide a valuable for litigants, attorneys and other readers inside and outside of the United States insight into the workings of the American judicial system, the myth of the so-called "access to justice for all" and the myth that the allegedly "honorable" judges in the American allegedly "honorable" court system allegedly uphold the U.S. Constitution instead of violating it at every possible turn.
I plan to publish three versions of the book in several languages: English, Russian and Spanish.
The book will be put together and published within a reasonable time of the conclusion of my disciplinary case. I hope you will be my readers. I promise I will work hard on the book and make it worth my readers' time and money.
Arbitration and mediation services will now be provided at 203 Main Street, Delhi, NY. By appointment only.
I am now announcing that I will provide arbitration and mediation services at my current office location at 203 Main Street, Delhi, NY 13753. By appointment only. Make an appointment ahead of time (607) 746-6203.
Arbitration and mediation services are not regulated in the State of New York, and whether I am suspended or disbarred, will not affect my ability to provide arbitration and mediation services. So, even if I am suspended or disbarred, I will continue providing arbitration and mediation services.
My fees for arbitration and mediation are, and will remain, negotiable in each case.
No legal advice is allowed to be provided, or will be provided as part of arbitration or mediation services.
Thank you for your attention.
Friday, December 19, 2014
How do you resolve a motion asking the court to vacate its previous decision without an explanation, reasoning or analysis? While the motion was to resolve fundamental constitutional issues which legal scholars is this country are increasingly focusing on?
By yet another equally unreasoned and equally illegal decision, coupled with an illegal anti-filing injunction, imposed without a notice or opportunity to be heard and in violation of the attorney's 1st Amendment right GUARANTEEING her access to court.
Well done, Judges Smith, Fahey, Carni, and Valentino of the Appellate Division Fourth Judicial Department.
I understand it is difficult to curb your temper and not to retaliate when you are being criticized - especially when the criticism is true.
And what an accelerator my blog was! What you could not decide in two months, you suddenly decided in two days - since my blog was published.
Well done! After all, what is the U.S. Constitution to you when you need to settle a score with an attorney who dared to criticize you?
The selective illiteracy epidemic in courts is catching. Now the U.S. Court of Appeals for the 2nd Circuit is affected
In May 16, 2014 I filed a lawsuit against a number of public officials where, among other requested remedies, I sought disclosure of secret contacts between influential attorneys and law firms with judges who presided and are presiding on my own cases and cases of my clients. I had information that judges are participating in at least certain named "mentoring" organizations and there is, thus, a likelihood that judges are not only engaged in ex parte communications regarding my cases behind my back, but may be provided material benefits by my opponents.
Membership and benefits in such organizations are secret, and the only way to receive that information was through a lawsuit.
I also sought discovery and damages against the federal court and judges whose employee spied on me on the Internet.
Before any Defendants appeared in the action, Judge Glenn T. Suddaby whose recent law clerk was a Defendant in that action, dismissed the action (where Judge Suddaby's court and its individual judges, including the Chief Judge, were defendants), dismissed it "sua sponte" and called it frivolous - that is, instead of recusing and transferring the case to another court.
Judge Suddaby found grounds for judicial immunity even though the information I sought was in regarding judges out of court activities to which judicial immunity does not apply.
The whole concept of absolute judicial immunity for malicious and corrupt acts ON THE BENCH is simply wrong, unconstitutional and self-serving, since it was invented (relatively recently) to protect judges from the civil rights movement, raising recognition of people's civil rights and lawsuits.
Courts routinely state that judicial immunity applies only to judicial acts, acts during court proceedings.
Yet, when anybody tries to test that restriction, usually the restrictions does not work, and in many cases sanctions follow.
In Bracci v. Becker I raised numerous instances of Judge Becker's out-of-court acts, yet, judicial immunity was applied by Judge D'Agostino nevertheless.
I later learnt that Judge D'Agostino is part of the "mentoring" circuit with attorneys who had grudges against me, and I simply wanted to confirm the list of members in that mentoring circuit, what kind of benefits she received and the list of attorneys she met with behind closed doors.
Judge Suddaby protected her by dismissing my lawsuit verifying her possible benefits before she had a chance to appear in the action, and the same for all other powerful defendants.
So, the first step of damage control for the fellow judges was done by Judge Suddaby.
I appealed Judge Suddaby's "sua sponte" dismissal (dismissal on the court's own motion) - and, by the way, the "court's own motion" was never served upon me and I was never allowed to oppose it.
When I appealed Judge Suddaby's decision, I followed the law and did not serve the Notice of Appeal upon anybody- because no parties had a chance to appear on the other side and the dismissal was sua sponte.
Yet, the appellate court, the 2nd Circuit, named all defendants in the case as "Appellees" - parties to the appeal, my opponents. That was against the court's two own recent cases:
1) Boddie v. Alexander, 356 F. App'x 438, 439 n. 1 (2d Cir. 2009) ("Because the District Court dismissed this action before service of process, the defendants listed in the complaint are not parties to this appeal");
2) Petway v. N.Y. City Transit Auth., 450 F. App'x 66, 66 n.2 (2d Cir. 2011) (Because the District Court dismissed [plaintiff's] complaint pursuant to 28 U.S.C. 1915(e)(2) prior to its service on any defendant, no defendant has appeared in the case, either in the District Court or on appeal").
Then, bizarre things started to happen.
The 2nd Circuit court received a letter from the New York State Attorney General dated September 26, 2014, clearly stating the above law and indicating that NYS AG is not appearing in that action on behalf of any Appellees. NYS AG asked the court to remove the NYS AG's office from the list of counsel.
I did not find in the docket of this case any decision of this court on the letter of NYS AG, but it appears that the request was granted without any motions, and NYS AG is not listed on the docket as attorneys for the State Defendants.
Despite the fact that the NYS AG notified the court that, by the court's own recent precedents (2009 and 2011), there are no Appellees in this case, the court stubbornly continued to deem all defendants in the court below as Appellees, see the snippets from the court's docket report as of today:
One Notice of Appearance was filed by Porter L. Kirkwood, Esq., the Delaware County Attorney.
The Notice of Appearance simply stated that Mr. Kirkwood appears on behalf of an "Appellee", without a name. It was clear that such a "notice" was a nullity and had to be rejected by the court.
I notified the court that
(1) there are no Appellees in the action;
(2) that Mr. Kirkwood "Notice of Appearance" on behalf of an unnamed Appellee is a nullity
and requested to remove Mr. Kirkwood from the case.
The court which sent back to me or my husband appealing Pro Se any documents where the court personnel thought any corrections should be made, including a comma (!) on the front page of an Appellant's Brief, was extremely lenient to Mr. Kirkwood.
The court READ MR. KIRKWOOD'S MIND and PRESUMED that Mr. Kirkwood is appearing on behalf of Richard Northrup, Delaware County District Attorney.
Thus, in regards to governmental parties, the court acts as a kind mind-reader and advocate, and in regards to a civil rights plaintiff/appellant the court acts like an evil stepmother inventing for such civil rights plaintiffs/Appellants, like for Cinderellas, a mountain of unnecessary and burdensome activities.
Specifically, for me, right after NYS AG notified the court of the law in the case, that there are no Appellees, by the court's own recent two precedents, the court sent to me a "notice of defective filing" where the defect was "missing proof of service" - and, where there are no Appellees, there is no duty to serve anybody, and thus, the court has no authority to require proof of service upon non-existing parties. Here is the notice:
The "defective notice" with "missing proof of service" was filed on October 27, 2014 (see the runner on top of the document above).
I answered the court that where there are no Appellees, there should not be any service required, and attached to my answer the letter from NYS AG of September 26, 2014, indictating to the court that they were already notified about that not only by myself but by the NYS Attorney General.
Despite that, on November 18, 2014 the court stubbonrly issued a "default notice" to "appellees" and failed to send me a copy of that notice. So, the court engaged in an ex parte communication with non-parties in the action pertaining to the action. Here is the notice:
It is interesting to mention that the above ex parte "Default Notice" of November 18, 2014 does not contain an indication to whom it is addressed.
Yet, the docket report does contain such an indication.
So, a little short of 2 months after the New York State Attorney General notified the court that it is NOT appearing on behalf of any parties in this appeal because, by the court's own two recent precedents, there are no appellees in this case, the court continues to communicate with State Defendants as "appellees", and in an ex parte manner, no less. On an appeal from a civil rights complaint seeking disclosures about possible massive ex parte communications of judges with influential attorneys outside of court proceedings. Makes a lot of sense and raises a question - can the court personnel read?
As you can note, Porter L. Kirkwood appeared in the action on November 26, 2014, 8 days after the notification to State Defendants only. It is unclear how he was notified - by phone, possibly? That is another misconduct on behalf of the court, but - guess what - while applying to themselves absolute immunity for malicious and corrupt acts ON THE BENCH - BECAUSE - allegedly discipline against such misconduct is available - judicial discipline against federal judges is not available if misconduct occurred ON THE BENCH. So, if a federal judge commits misconduct on the bench, short of impeachment, you have no remedies. A motion to recuse is directed to the same judge, and the same judge will - surprise, surprise! - sanction you for making the motion to recuse him/her and award against you thousands of dollars of attorneys fees of your opponent, so that you do not dare to that again in the future. So much for the rule of law, fairness and justice.
In this case, it gets better.
The docket report indicates (I never received any notices of these filings) that:
On December 4, 2014 attorney Barbara Underwood for a number of State Defendants was "terminated".
Nowhere in the docket does it show that Barbara Underwood appeared on anybody's behalf. On the opposite, the letter from NYS AG's office of September 26, 2014 (above) clearly stated that nobody is appearing on behalf of State Defendants becuase, by law, on this particular appeal there are no appellees (opponents to the appeal).
On December 8, 2014 attorney Steve D. Clymer is mysteriously "substituted" in blase of attorney Brenda K. Sannes. Who those people are, I do not know, I was never notified about their roles in this case.
On the same December 8, 2014 the court sent yet another "default notice":
As in the case with the first "default notice", it was sent out ex parte, without notifying me, so it was another ex parte communication with non-parties in my appeal.
As previously, the "default notice" did not list to whom it was sent.
As previously, the docket report on Pacer reflected to whom the default notice was sent.
Of course, the ex parte communication was with judges of the lower court - defendants in the action who were NOT parties in the appeal, by the 2nd Circuit's own two recent precedents. But - when the appellate court engage in ex parte communication with judges, if they are defendants in a civil rights action, in the 2nd Circuit it appears to be ok. Identity of the defendants absolves the appellate court from following the law - that is the only conclusion I can arrive at given the pattern of actions of the court in this case.
On the same December 8, 2014 the court received a letter from the U.S. Attorney's Office on behalf of the above mentioned federal defendants (who never appeared in the action in the court below and, by law, are not appellees in this appeal either, so they are NON-PARTIES).
The U.S. Attorney's letter is similar to the New York Attorney General's letter of September 26, 2014 above, indicating that the U.S. Attorney's office cannot, by law, appear on behalf of any appellees in my appeal.
Both NYS Attorney General and the U.S. Attorney General indicated a possibility that they may appear in my appeal with "amicus briefs", even though there are rules restricting who can file "amicus briefs", and in this situation, neither of the offices qualifies (in my opinion), and if they do file "amicus briefs", they will disqualify themselves as attorneys for parties, should the case be reversed, remanded, and should the defendants be served. I guess, nobody thinks that far into the future.
So, as of December 8, 2014, both the NYS Attorney General and the U.S. Attorney notified the court of its own two precedents and indicated that they are not authorized to appear on behalf of defendants who were not served and did not appear in the action below, and thus are not, as a matter of law, Appellees in this appeal.
The court appears to be deaf and blind to those statements, because the very next day it issues the following order:
There is no explanation as to why my request to exclude Porter Kirkwood, who never properly appeared in the action (appearance on behalf of an unnamed Appellee is a nullity even if there are Appellees in the appeal, and on this appeal there are no appellees, as a matter of law, in accordance to the court's own two recent precedents).
Yet, there is a threat that if I do not serve Porter Kirkwood with my appellate forms, the forms will be stricken from the docket. It is, in fact, a threat to dismiss my appeal if I do not comply with a clearly unlawful order of the court.
I will, of course, comply, to avoid dismissal of the appeal, which does not mean that I concede that the order above is lawful - it is clearly not.
Moreover, on the same day of December 9, 2014 the following second "notice of defective filing" was sent to me.
I am now notified that if I want to strike Porter Kirkwood's appearance, I need to do that with an attending form.
First of all, the court already denied my request, without any forms.
Second, no notices of defective filings were sent to Porter Kirkwood when he did not list the name of the "Appellee" in his notice of appearance, making such a Notice of Appearance a clear nullity.
Instead of rejecting Porter Kirkwood's notice as a matter of law, the burden is put on me to file motions to strike Porter Kirkwood's "appearance", and such a notice is coupled with an order already denying me the request.
So - should I or should I not even bother to file the "missing motion information statement"?
To me, the above means that the court, both judges and personnel, are either biased, or prejudiced, or illiterate (selectively), or all the above.
In my case the harassment unleashed upon me by the court is egregious enough. But civil rights law is supposed to serve the underserved population, the illiterate and borderline illiterate and the poor.
How can these civil rights plaintiffs/appellants fight with this stubborn, arrogant and lawless red tape, issued by courts, with a threat of dismissing the appeal if a civil rights appellant does not comply with a clearly unlawful court order catering for the powerful governmental defendants - who are NOT parties in the appeal, as a matter of law.
Let us also consider staffing of federal courts.
According to vacancies posted on Indeed.com for federal court personnel, federal courts only hire "the best of the best".
The hired court employees receive excellent salaries and benefits, must adhere to a "code of conduct" and serve "at will" "at the pleasure of the court".
Yet, judging by the actions of personnel of the 2nd Circuit court, the main "code of conduct" is not adherence to the law or U.S. Constitution, but serving at the whim of judges who would not adhere to the law where they are inventing unlawful barriers to a civil rights appeal that may affect themselves in a profound way.
After all, they are only "at will" employees serving "at the court's pleasure".
And, once again, so much for the rule of law.
Monday, December 15, 2014
How difficult it is for the court to adhere to the law? It is impossible if the law is on the side of the attorney marked for destruction for criticizing and suing judges
On September 30, 2014, the Appellate Division 4th Department has issued an order in my disciplinary case denying my cross-motion (constitutional issues, sanctions against the disciplinary prosecutor, dismissal of certain charges, including fraudulent charges and moot charges).
The order had NO reasoning at all. None.
The order appointed a referee in violation of the statutory law requiring that such a referee can only be a retired Supreme Court Justice. The referee appointed is a retired County Court Judge.
On October 9, 2014 I moved to vacate, renew and reargue, recuse the court because of its behavior towards me, and to sanction my opponent for frivolous conduct, for promoting fraudulent charges.
On October 23, 2014 I had to travel 3 hours one way to appear at a conference before the referee in the case.
The conference took a whole of about 10 minutes during which the referee told me and my opponents that he is not going to schedule any hearings until the court hears my motion of October 9, 2014.
Apparently, I could have been notified by phone simply not to come all the way to hear that, but I wasn't.
At the conference, the referee stated, and it was reflected in the transcript, that he is going to make not simply factual findings, but a decision on the case.
I supplemented my motion by a request to disqualify the referee, as he not only was not qualified to be so appoitned by the statute, but also obviously did not understand what his authority was, even after reading the court order that allowed him only to make factual findings, but no orders.
At the conference of October 23, 2014, the referee and my opponent indicated to me that the expected date when the decision on my motions is going to be made is November 20, 2014.
No decision was made until the date of the conference on December 5, 2014, and the referee adjourned the conference until January 12, 2015, waiting for the decision on my motions.
On December 8, 2014, without making any decisions on my motions, the court made the following order:
It is clear from the order that it did not even mention that a motion is pending since October 9, 2014 to vacate the September 30, 2014 order, recuse the court and the referee and allow me to renew and reargue the cross-motion raising fundamental constitutional issues that the court denied without an explanation.
When a motion to recuse is pending, and until it is resolved, the court has no authority to make any intermediate decisions.
Yet, apparently, the court did just that.
When a motion is made, the moving party is entitled to a written decision, and as a matter of due process of law, to a reasoned written decision.
As the court's decision of December 8, 2014 demonstrates, no mention of my motions is even made.
How difficult it is for a court of law to actually follow the law? In my case, it appears to be impossible.
The court cannot provide any plausible explanation or legal authorities as to why it granted a hearing without granting or denying a summary judgment of the prosecution, because there is none.
The court cannot provide any plausible explanation or legal authorities as to why it denied my motion to dismiss the charge seeking to discipline me for not committing a crime of practicing law without a licence in 2008 when I was not licensed to practice law, which is the subject of Charge I Specification I, and for which I provided irrefutable documentary evidence, court records that the opponents did not and could not rebut. The disciplinary petition stated I was admitted to practice law in 2009. Court records stated that the deposition and motion where I allegedly did not appear and did not oppose, both happened in 2008. What else does the court need to dismiss those charges? I guess, to harass me some more, at the directive of some people who want me to be harassed.
The court cannot provide any plausible explanation or legal authorities as to why it did not dismiss the charge that I did not pay the sanctions when the charge was filed in 2013 and the sanctions were paid in 2011, immediately after they were imposed, into the escrow of Delaware County Supreme Court.
The court cannot provide any plausible explanation or legal authorities as to why it skipped ruling on all of my constitutional issues, because the court must do that, and the federal court remanded my case back to state court on the argument that the state court will review and rule on federal constitutional issues. Apparently, it is too dangerous for the court to do that. It might create a precedent for the whole country that it is not constitutional to sanction an attorney and deprive an attorney of her reputation, property and livelihood for criticizing misconduct of public officials including judges. The court is not ready to actually discharge the function of protection the Constitution that each of the judges on the court have been sworn to uphold.
The court cannot provide any plausible explanation or legal authorities as to why, while prosecuting me for allegedly frivolous conduct (in the opinion of Judge Becker who imposed the sanctions after I sued him), it fails to sanction my opponents for promoting against me clearly fraudulent charges, which was proven by irrefutable court records. Of course, my opponents claim to be "part of" the same court that is presiding, which is only more grounds for the court not to preside.
In other words, the only reason why the reasoned decision was not provided by the court was because there can be no reasoning to rule against me other than there is an agreement by the court and, possibly, high-ranking individuals who direct the court, to rule against me no matter what the law says.
To say that, under the circumstances, I am heard by a court of law and not a Star Chamber court would be gross intellectual dishonesty.
The authors of the decision that ignored that a motion to recuse and to vacate, renew and reargue the September 30, 2014 decision is pending before the court and who proceed as if no motion was ever made, are:
- Judge Smith
- Judge Fahey,
- Judge Carni,
- Judge Sconiers
- Judge Valentino.
It appears that the only reason I am prosecuted is because I complained about misconduct of judges, and sued judges - and no matter what the law says, my livelihood and reputation must be destroyed to teach me, and any other attorneys who would contemplate to complain about such misconduct, a lesson, and the court is the tool of destruction that is teaching such a lesson to the legal community.
The rule of law, right.
Thursday, December 11, 2014
ACLU Executive Director: pardon the torturers to prove that torture will not be tolerated - a reality check is in order
I read, with total dismay and astonishment, an article in the New York Times by the Executive Director of the American Civil Liberties Union Anthony D. Romero calling on the U.S. President to issue "pre-emptive pardons" to the following 7 individuals:
- George J. Tenet - for authorizing torture at the C.I.A's black sites overseas;
- Donald H. Rumsfeld - for authorizing the use of torture at the Guantanamo Bay Prison;
- David S. Addington, John C. Yoo and Jay S. Bybee - for crafting the legal cover for torture;
- George W. Bush and Dick Cheney - for overseeing the torture.
"Americans would condemn this sort of arrangement as cronyism and corruption of the sleaziest sort if they witnessed it in another country. In the United States, however, political and media elites (though not the general public) widely agreed that immunizing the felony-committing president from the criminal justice system was the right thing to do", p. 18.
To ensure genuine access to justice in the US and in the State of New York, state and federal statutory prohibitions should be introduced for any public officials, including judges, to sanction critics of their behavior in any forum, with a strict-liability disciplinary component for violations and with statutory voiding of any such punishments
That public official then turns around and deprives you of a benefit. Moreover, that public official sanctions you for your criticism of that public official.
It is pretty obvious that a major conflict of interest exists under the circumstances.
It is pretty obvious that a public official cannot sit in judgment of a person who criticized the public official, and cannot punish that person, as there will be an appearance that the punishment is in retaliation for criticism and in violation of the person's 1st Amendment rights.
Right? Not so fast.
In New York State courts, and, as far as my research shows, in other states around the country, judges punish attorneys and parties specifically for making motions to recuse those same judges.
A growing number of states allow peremptory challenges to judges (removal without cause), but New York is not one of them.
If you do not make a motion to recuse, the appellate court will reject your claim of bias on appeal and will "defer" to (rubber-stamp) all factual determinations of the biased judge bent on retaliation against you.
If you do make a motion to recuse, the judge will sanction you and your attorney, so attorneys usually refuse to make such motions. It is a Hobson's choice, of course. Everybody knows about it in the court system, nobody wants to address it. Why? Job security.
Is it a denial to you of effective representation of counsel due to this culture of intimidation? Definitely. Is it going to change any time soon? Not until and unless the people start asserting their claims to change the situation through legislative initiatives, because nothing will be done through courts where judges will always support their own.
Is it constitutional to allow a judge whose conduct is challenged to be the judge of his or her own misconduct? In my opinion - definitely, not. Yet, it is happening, in both state and federal courts. I urge people of the State of New York to write to their legislative representatives to introduce a bill prohibiting judges to sit on motions to recuse those same judges.
Is it constitutional to allow a judge to sanction a person who criticized the judge, for the criticism? In my opinion, definitely not. It is a violation of the 1st Amendment freedom of speech, access to court, and a due process right to a fair trial before an impartial court. A person, no matter how honorable his official position is supposed to be, cannot NOT have favorable bias to himself or herself, it is in the human nature to not take criticism well and not to see your own flaws. Economic constraints, constraint of caseloads of judges, constraints of understaffing of courts have nothing to do with people's right to a fair trial in front of an impartial judge. Therefore, a bill should be introduced and statutory law passed, in my humble opinion, prohibiting state and federal judges from presiding over motions challenging their conduct, and a "statute with teeth", with strict disciplinary liability for non-compliance.
A state and federal statutory prohibition should also exist for judges to impose any other sanctions or deprive litigants of any other benefits, such as access to court, where making motions to recuse those judges is any factor or basis for such sanctions.
It is elementary. You do not get the authority to punish your critic, it is a conflict of interest to any person, honorable and dishonorable. And if you do punish your critic, you must be punished, too, and your decision to punish your critic must be deemed, as a matter of statutory law, null and void.
Until and unless such statutory law is introduced, nobody in this country will have effective representation of counsel, with counsel shaking in the bushes whenever their client raises the issue of bias of the judge and requests to file a motion to recuse.
A law allowing peremptory (no cause) challenges for judges for the State of New York and in federal court would also be nice to have, but they do not eliminate the problem.
It is a basic due process principle that removal for cause from any position of power should not be within the exclusive discretion of the person whose conduct is challenged and whose removal is sought, whoever the person is and however high and honorable his or her position of power is.
In fact, if judges claim to be a presumptively honorable profession, they should adhere to such principles more, not less than we mere mortals.
Wednesday, December 10, 2014
A lawsuit was filed in Delaware County Supreme Court against 6 disciplinary attorneys, the New York State Attorney General and two of Assistant Attorneys General for fraud and fraud upon the court
Today I filed a civil lawsuit in the Delaware County Supreme Court against 9 attorneys working for the New York State government, for fraud and fraud upon the court.
The claims are based on the following:
Upon information and belief and judging by the official records that I have, these 9 attorneys, knowing that their actions were fraudulent, did the following:
(1) investigated and prosecuted me for over 2 years for NOT acting as an attorney at the time when I was NOT admitted to the bar; the charge is not just bizarre, it is insane, yet, they are pursuing it relentlessly, for 2 years in four courts, at your expense, New York taxpayers, and it is time to hold them accountable;
(2) investigated and prosecuted me for not paying a court sanction imposed upon me by a judge I sued after I sued him, when by the time the claims were filed the sanctions were paid into the escrow of the court 1.5 years prior;
(3) for continuing to harass and prosecute me on these charges, knowing they were false, for 2 years in 4 courts:
- New York State Supreme Court, Appellate Division Third Judicial Department;
- U.S. District Court for the Northern District of New York;
- U.S. Court of Appeals for the 2nd Circuit;
- New York State Supreme Court, Appellate Division, Fourth Judicial Department.
Of course, the only reason for the disciplinary prosecution against me is becuase I raised issues of misconduct of certain high-standing public officials, including judges and - imagine! - sued judges for their misconduct.
Of course, these high-standing public officials simply cannot leave me unpunished for trying to hold them accountable, no matter whether their punsihment is lawful or unlawful.
Of course, the public never authorized these attorneys to perpetrate fraud on its behalf in order to protect it, and there is nothing to protect it from.
Of course, the public did not pay these attorneys to use their taxpayer-paid time to perpetrate fraud.
It is time our public officials, all sworn to uphold the U.S. and State Constitution, get through their heads that to commit fraud is wrong.
Each of these two attorneys get paid close to or over $100,000.00 for their efforts, much more than an average New York taxpayer is paid.
Taxpayers of the State of New York, especially those struggling to pay taxes - until and unless you start to demand REAL accountability from your public servants, they will continue to deem their offices and jobs as private fiefdoms and will continue to waste your money on perpetrating fraud on members of the public and on the courts, instead of doing their jobs.
Tuesday, December 9, 2014
One more proof that Judge Gary L. Sharpe, Chief Judge of the U.S. District Court for the Northern District of New York, cannot read
Judge Sharpe filed against my husband, Mr. Neroni, a sua sponte (commenced by the judge) anti-filing injunction action, seeking to preclude my husband from any further filings in the U.S. District Court for the Northern District of New York.
Of course, a right of access to court to vindicate violatons of constitutional rights, including fundamental constitutional rights, is in itself a fundamental constitutional right that cannot be taken away without a hearing.
No hearing was offered or given to Mr. Neroni despite his demand for such a hearing.
Judge Sharpe is the judge who Mr. Neroni sought to recuse twice before the anti-filing injunction action was initiated by the judge against him.
Mr. Neroni provided to the court multiple exhibits showing that Judge Sharpe is (1) actually biased against Mr. Neroni and me, his wife and attorney in several actions; (2) Judge Sharpe sanctioned Mr. Neroni for his actions in still pending actions, including the actions in which no sanctions were imposed.
The Docket Sheet of Gary Sharpe's lawsuit against Mr. Neroni was labeled as a "Civil Rights Action":
Of course, a judge of a federal court cannot bring a civil rights action against a private party as a defendant. A civil rights action can only be brought by a private party against a state actor. Judge Sharpe was not acting as a private party when bringing this case, and Mr. Neroni is not a state actor who has violated Judge Sharpe's civil rights.
Yet, I guess that the Northern District of New York is Judge Sharpe's own court and he can do with it and its procedures, as with his own fiefdom, as he pleases.
In his opposition and cross-motion, Mr. Neroni provided 86 documentary exhibits showing that:
(1) Judge Sharpe is biased against Mr. Neroni;
(2) Judge Sharpe is biased against Mr. Neroni, that is me, based on my blogs criticizing Judge Sharpe;
(3) The law firms in whose favor Judge Sharpe brought the anti-filing injunction action against Mr. Neroni are politically connected law firms employing relatives of judges;
(4) One of the law firms in whose favor Judge Sharpe recently ruled awarding attorney fees agaisnt Mr. Neroni (the sanction is currently on appeal) is serving as a de facto depository of employees of the court after they leave the court for private employment. Exhibits were provided showing that clerks of judges of the court, including a clerk of Judge Sharpe, were accepted as associates and partners into Hiscock & Barclay of Albany, NY, for whose benefit Judge Sharpe brought the action, which created a huge appearance of impropriety.
(5) Judges of the court are members of an organization American Inns of Court where Hiscock & Barclays partners and employees are members and sponsors;
(6) A partner of Hiscock & Barclay
In his opposition, Mr. Neroni argued that an anti-injunction order must comply with strict scrutiny as blocking his fundamental constitutional rights. Mr. Neroni argued that any prior restraint on speech is presumptively unconstitutional.
In his opposition, Mr. Neroni argued that the court has no right to deem frivolous actions which were dismissed by the court, as a discretionary matter, under Younger abstention, meaning that the court had jurisdicton, but decided to let a state court decide first.
In his opposition, Mr. Neroni argued that the court has no right to deem frivolous actions which are still pending, are pending with counsel who was not notified of the anti-injunction proceeding, pending before another judge and where no sanctions were imposed.
In his anti-injunction order issued on November 26, 2014, Judge Sharpe dedicated a grand total of two 1/2 lines to the factual findings supporting his anti-filing injunction against Mr. Neroni.
Judge Sharpe stated that Mr. Neroni "failed to provide sufficient justification for his previous conduct", whether Mr. Neroni had to justify his "conduct" or not.
It is obvious that, to Judge Sharpe who hates Mr. Neroni and hates me for exposing his misconduct publicly, including this blog, it is apparent that no amount of arguments, facts, documents or legal authorities will be "sufficient justification".
It was obvious that the whole "order to show cause" giving Mr. Neroni an opportunity to respond only in writing and not in person, while a hearing in these kind of cases is required, was a mere formality, and the case was pre-judged before it was even filed.
Moreover, Judge Sharpe went so far as certifying in the same order that any appeal that Mr. Neroni would seek to undertake from Judge Sharpe's anti-filing injunction will be deemed to be in bad faith.
Any reasonable person, including myself, knowing what can follow if an appeal is filed against such a certification, would perceive it as a clear threat to Mr. Neroni that if he appeals, he will be sanctioned, so, don't appeal, or else.
Yet, if any reasonable person reads the statute under which the certification was made, the reasonable person will have a question as to whether Judge Sharpe can read, because the statute under which the certification was made was in no way applicable, and thus the certrification was false.
It is relevant to mention here that I already asked the question whether Judge Sharpe can read in this blog and on the blog of Forbes.com after Judge Sharpe sanctioned me and Mr. Neroni for correctly reading the 11th Amendment of the U.S. Constitution, and those sanctions were part of Mr. Neroni's motion to recuse in this case.
It is interesting to mention that Judge Sharpe has brought anti-filing injunction proceedings against Mr. Neroni within a couple of weeks of my statement on Forbes.com that Judge Sharpe cannot read, and I cannot deem it a simple coincidence. There are too many coincidences in how Judge Sharpe treats me and Mr. Neroni and all of those "coincidences" are slanted against us.
Judge Sharpe, as a sworn federal judicial officer, CERTIFIED (which means it is done under oath) that pursuant to a statute, 28 U.S.C. 1915(a)(3), (which means that my husband should have been a pro se plaintiff in a civil rights action, and was adjudicated by the court, on his own application, as a poor person), my husband's appeal from his decision, if undertaken, will be undertaken in bad faith.
Of course, I consider the statute itself where a judge of a court below is allowed to block an appeal from his own decision by claiming it is taken in bad faith, unconstitutional and seeking to prevent appellants' access to court in violation of the 1st and 14th Amendments of the U.S. Constitutions.
But the beauty of the present situation, where a high-ranking federal judge is using this particular statute in this particular case is that the statute, by its clear and unambiguous language, refers to civil actions and appeals brought by pro se civil rights litigants adjudicated as poor persons.
Let me count how many mistakes the judge has made in his certification in order to block Mr. Neroni from appealing his decision:
(1) Mr. Neroni is not a Plaintiff in this action;
(2) this action is not a civil rights action;
(3) Mr. Neroni was not adjudicated as a poor person.
Here is the portion of the docket report before Judge Sharpe's ruling on November 26, 2014. It clearly shows that Mr. Neroni is not a plaintiff in this action, and that he never applied for or received a poor person (in forma pauperis) status from the court.
Thus, certification under this statute seeking to preclude Mr. Neroni from filing an appeal and implicitly intimidating him with sanctions for filing an appeal in bad faith, did not have any legal basis.
Either the judge did not read the statute that he was using as a basis for his certification, or he simply did not care what it said, as long as he cites some law, right or wrong, to block my husband from appealing Judge Sharpe's unlawful and unconstitutional order made in favor of a "friendly" law firm that, upon information and belief, provides material benefits for judges of Judge Sharpe's court, helps pick magistrate judges, participates in making local rules of the court and accepts employees of the court as associates and partners.
And this false certification, ladies and gentlemen, and the reasons behind it, are grounds for impeachment of Judge Sharpe, which is what is going to be sought.
Last, but definitely not least, is the mistakes in how the clerk of the court filed Mr. Neroni's pleadings in this case, in a way that violated rules of court to such electronic filings, made it more difficult for readers on PACER to review the file and made it impossible to word-search the file, as is required by court rules.
There is a requirement to electronic filings in this court, that all exhibits must be filed separately, and must be scanned into a word-searchable PDF.
Mr. Neroni, as a pro se defendant, was not allowed to file electronically, it was the obligation of the clerk of the court to follow the rules in how documents are scanned and filed, and those rules are not different from rules applicable to counseled parties.
I checked on PACER today how Mr. Neroni's cross-motion with 86 exhibits was filed by the clerk of the U.S. District Court for the Northern District of New York and found TWO major violations of the court rules:
(1) 86 exhibits were filed in 5 batches, instead of each exhibit separately. Such defective filing prevents people who are searching this file on PACER and who do not know about this case, from assessing the true number of exhibits. If a person sees 5 exhibits, he or she may be less interested in the case than if he or she sees 86 exhibits filed;
(2) Exhibits are not filed in word-searchable format, precluding a major utility required for documents filed on PACER.
I do not believe this was done accidentally. I do believe this was done intentionally, to preclude the word-search of the filed documents and to make it more complicated for the public to review this file.
The judge obviously was protecting himself and his associate judges whose misconduct and conflicts of interest were exposed in the exhibits.
And that will be yet another basis for our petition for impeachment.