"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, May 30, 2014
How federal appellate courts unilaterally and without authority transformed themselves into arbitration panels
When a person files a lawsuit, it usually means that the alternative means of dispute resolution did not work.
Litigation is not a fun activity. It is stressful, costly and time-consuming.
Yet, when a person files a lawsuit, a person expects from the judiciary diligent review of his or her case on equal grounds with other litigants.
That is called "equal justice for all" and is guaranteed by the Equal protection Clause of the 14th Amendment of the US Constitution which every judge in the United States takes an oath to uphold as a condition of taking that judicial office.
Yet, an interesting metamorphosis happens to the judges' readiness to uphold the concept of equal justice for all when a judge is faced with increasing caseloads.
Now, let's agree on some common premises.
Population of the United States increases.
The number of court cases increases.
The number of federal judges did not increase in proportion with the increase of cases filed and litigated.
There is a physiological limit as to human attention span and ability of any human for intense intellectual work per day.Federal judges are usually advanced in years, which makes their ability for strenuous intellectual work and speedy, efficient and diligent resolution of court cases suspect, no matter how many clerks they employ.
Reports constantly appear that the rule that federal judges serve while on good behavior simply does not work, because it does not cover aging and aging-specific health problems. Senility among federal judges is a growing concern. Some federal judges serve into their 80s and even 90s. Senior judges handle 15% of the caseload of federal courts.
Does all of the above justify unilateral classification of cases by judges into the "worthy" track where full review and analysis is conducted and full opinions are issued and punished and the "unworthy" track where a less-than-diligent review of cases is warranted, according to judges' absolute discretion?
Not if the constitutional concept of access to courts, due process of law, equal prison of law and for fair, competent and impartial judicial review is followed.
If there is the same number of judges for increasing number of cases, the concept of equal protection of law means simply that it will take longer for any given case to be reviewed, not that the judge is somehow allowed to cut corners and provide a less than diligent review because he is so busy.
Yet, cutting corners is exactly what federal appellate courts are doing by designating over 80% of appellate cases (according to research of Erica S. Weisgerber, footnote 7 p. 624 and accompanying text), without notifying appellants or giving them an opportunity to object before it is too late, for a less than diligent review and production of the so-caller "unpublished opinions" where the courts hardly provide any explanations for their decisions, finally snaping appellants' lives and practically tarot 80% of appeals as a total waste of time and money, all in the name of the claimed judicial efficiency, meaning expediency that sacrifices diligence or fairness.
It is appalling that, without notice or opportunity to be heard, for the courts' own convenience, over 80% of appellants in federal appellate courts ate denied diligent appellate review, while the remaining 20% or less of appellants are given such review, for unlearn reasons, based on the judges' sole and absolute discretion which is practically unreviewable by any other court.
When federal appellate courts refuse to explain over 80% of their decisions, they are no different from arbitration. Yet, arbitration is not what the appella ts who are denied proper review chose.
The difference between the court of law and arbitration is that, while arbitration is also binding, the arbitrator is not required to cite the law or provide his or her analysis or reasoning for the decision. That is exactly what federal appellate courts are doing with their "unpublished opinions".
Yet, arbitration is voluntary, and if litigants chose judicial review in federal courts as of right, they cannot be forced into an arbitration or arbitration-like review without their knowledge or consent, which is what is happening now in federal appellate courts.
My legal opinion is that such a practice is unconstitutional and invalidates federal appellate courts as entities, where such courts, for their own convenience' sake, unilaterally, voluntarily and without authority started to act as arbitrators and not courts in the overwhelming majority of cases.
Thursday, May 29, 2014
New York Judiciary Law 487, fraud upon the court - downed twice by two New York courts since 2009, but still alive?
Judiciary Law 487 is a criminal statute with a civil portion. It allows a civil action against an attorney who defrauded a court.
In a civil action, as any first-year law student knows, there is no such thing as an "attempted tort" (see Peter Cane, Anatomy of Tort Law, p. 63), because if the tort has been attempted, but not completed, the essential elements of damages and causation of damages are lacking and cannot be proven.
Attempts are the realm of the criminal proceedings, not of civil actions, where the prosecutor is the state, on behalf of the People, and where damage even from an attempt, is presumed.
Yet, because of the stigma attributable to criminal convictions, prosecution for a criminal attempt must comply with Criminal Procedure Law and constitutional law.
As opposed to a civil case, in a criminal case:
- The defendant has a right to an arraignment where he may plead "not guilty" and must be advised by the judge of his right to remain silent - there is no such right in a civil proceeding and a civil defendant may be claimed in default for failing to rebut allegations against him.
- The defendant has a right to a Bill of Particulars, discovery in accordance to a statute, motions to suppress illegally obtained evidence, including illegally obtained confessions, the right to a jury trial on each and every issue of fact, the right to confront his accusers, to have them testify at trial - in a civil action the right to a jury trial may be easily circumvented by a summary judgment.
NYS COA heavily relied in its decision on the intent of attorney to commit a crime of fraud upon the court. It is apparent that the resulting NYS COA decision is also about an attempted crime, and cannot legally be about an attempted tort, a non-existing concept. Yet, that's what we have in New York - a civil portion of a statute and its interpretation by the highest court in the state eliminating that civil portion and converting it into a de facto criminal proceeding prosecuted in the Supreme Court of the state by private parties and without indictment of the grand jury.
Since there is no such thing as an attempted tort, only an attempted crime (as any 1st year law student must know), the New York State Court of Appeals, by its decision in Amalfitano, eliminated the civil portion of the Judiciary law 487 and turned all proceedings pending at that time under the civil portion of Judiciary Law 487 into criminal proceedings.
The starkly incompetent decision by the New York State Court of Appeals ignored statutory and constitutional law distinguishing torts and crimes and related proceedings, ignored that in the Supreme Court criminal proceedings can be brought only by a public prosecutor and only through the indictment of the grand jury, and ignored the fact that it ruled the now treble damages are allowed by the court where no damages can be found by the jury, and thus the Court of Appeals usurped the function of the jury to find or not find damages in certain cases.
Of course, the New York State Court of Appeals has never announced its monumental blunder, did not apologize, did not revise it, did not retract it and vacate it sua sponte.
Thus, when an attorney is sued for attempted tort, in New York he or she can be de facto criminally prosecuted by private parties without following any criminal procedure or constitutional law that is applicable to such prosecution for attempts.
Good job, New York State Court of Appeals. Nothing like failing your 1st year of law school's finals.
Blunder No. 2.
On December 23, 2013, in an effort to help out a "brother at arms", a judge of a town justice court, Delaware County Supreme Court, Judge James C. Tormey pronounced that absolute judicial immunity applies to malicious acts of a private attorney during litigation.
The attorney in question was sued for defamation, fraud and fraud upon the court under Judiciary Law 487.
Absolute judicial immunity, the way it has been constantly applied by New York and federal courts for decades, creates a bar to subject matter jurisdiction of the court.
Thus, after Judge Tormey applied absolute judicial immunity to any misconduct of an attorney during litigation, he abrogated the court's subject matter jurisdiction to review lawsuits against attorneys under Judiciary Law 487.
Delaware County Supreme Court, Judge Dowd, refused to acknowledge precedential value of Judge Tormey's decision, calling it "dicta", even though it was the basis of the judge's dismissal of a lawsuit alleging malicious and fraudulent acts by an attorney, and thus was not dicta.
It is my legal opinion that (1) Judge Tormey's decision is not dicta and has invalidated Judiciary Law 487 in its entirety; (2) that the leading "precedent" for absolute judicial immunity for malicious and corrupt acts upon which both Judge Tormey and Judge Dowd relied in their respective federal civil rights litigation, is dicta, which does not prevent these judges and all courts in the United States, to rely upon it.
Thus, it appears, based on these 2 monumental blunders of New York courts that Judiciary Law 487 was skinned, chopped and thrown away, and yet it continues to be enforced.
This is what we call "the rule of law" in the State of New York.
Precedential value of dicta: yes, if it provides benefits to members of the judiciary and no, if it provides benefits to parties disliked by the judiciary
It has been a creation of the U.S. Supreme Court, which is itself restricted in its authority by the Article III of the U.S. Constitution, and there is nothing in the U.S. Constitution that allows the U.S. Supreme Court to amend that U.S. Constitution through interpretation, "imputation" or case law.
That said, the U.S. Supreme Court has still ruled in Stump v. Sparkman in 1978 that a judge is absolutely immune, even for malicious and corrupt acts on the bench.
The catch of the Stump v. Sparkman case was, though, that no matter how egregious the constitutional violations were in the case, the decision did not show that the judge had a personal interest in the case or was bought off by the petitioner, and thus, the expansion of judicial immunity to malicious and corrupt acts based on the record of Stump v. Sparkman was a mere dicta.
Yet, this dicta has become a leading precedent on the issue of application of absolute judicial immunity specifically to malicious and corrupt acts on the bench, and has been used like that for 36 years so far since the Stump v. Sparkman decision came down.
In January of 2012 the Delaware County Supreme Court, Judge James C. Tormey, dismissed a lawsuit of a former attorney Frederick J. Neroni against Delaware County Supreme, Family, Surrogate and County judge Carl F. Becker where Frederick J. Neroni was suing Judge Becker for malicious and corrupt acts, and applied the concept of absolute judicial immunity covering malicious and corrupt acts. The lawsuit against the judge was commenced by Mr. Neroni when he was still an attorney.
In other words, in January of 2012 the Delaware County Supreme Court dismissed Mr. Neroni's lawsuit against a judge for malicious and corrupt acts on and off the bench because of application of dicta from Stump v. Sparkman, the concept of absolute judicial immunity for malicious and corrupt acts.
In December of 2013 the same judge James C. Tormey applied the concept of absolute judicial immunity to my personal lawsuit against an attorney Jonathan S. Follender for defamation and fraud upon the court, and granted that attorney an absolute judicial immunity.
The catch in that case was that Jonathan S. Follender is also a judge in the Town of Denning Justice Court, Ulster County, and that Judge Tormey was usually assigned only to cases of judges and employees of courts, and was assigned likely in consideration of the court system rescuing him unscathed from a federal litigation against him for retaliation.
When absolute judicial immunity is applied, the courts apply it as a jurisdictional bar to all claims, and dismiss cases without reaching the merits.
Mr. Neroni at that time and at present time had a partial summary judgment on liability made against him on the same statute that was dismissed for Jonathan S. Follender where the court did reach the merits of his case, and his law license was taken based on that partial summary judgment, without a hearing, 3 years ago, while the case still proceeds and may be dismissed for failure to prosecute (the motion is pending) or for failure to prove damages or causation of damages at the jury trial.
Since Judge Tormey now says that absolute judicial immunity applies to attorneys, reasonable application of that decision was that Judiciary Law 487, fraud upon the court, was invalidated by Judge Tormey's pronouncement, and the court has abrogated its own subject matter jurisdiction as to all cases of attorneys sued for fraud upon the court, including my husband's.
I immediately applied Judge Tormey's decision and moved to dismiss my husband's proceedings for lack of subject matter jurisdiction in view of newly created law.
Judge Dowd, the presiding judge on the case who was involved in a litigation with my husband, ruled that Judge Tormey's decision is a "mere dicta", that I was collaterally estopped to assert any new law after the summary judgment on liability was granted and that I should have known better than to rely upon the dicta.
I will summarize what I said in a timeline.
1978 - in Stump v. Sparkman the U.S. Supreme Court stated in dicta that judges are absolutely immune for malicious and corrupt acts on the bench, and that dicta has been used to protect judges from such lawsuits for 36 years by federal and state courts;
2012 - Delaware County Supreme Court dismisses Mr. Neroni's lawsuit against a judge based on that dicta
2013 - Delaware County Supreme Court expands absolute judicial immunity for malicious and corrupt acts to private lawyers (in a case where the private lawyer to whom the benefit was given was also a judge of a justice court)
2014 - Delaware County Supreme Court claims that the 2013 decision was a "mere dicta" and refuses to apply that decision to dismiss the pending case against Mr. Neroni for lack of subject matter jurisdiction
I make a conclusion that the dicta only has precedential value when presiding judges need to protect sued judges from liability, and does not have any precedential value when a disliked party, an attorney who sued judges and is quickly disbarred without a hearing after he sued a judge, is concerned.
A dismissal of Mr. Neroni's case would have resulted in an immediate restoration of his law license, which is what Judge Dowd could not allow to happen.
If one considers that Mr. Neroni's lawsuit against Judge Dowd (Neroni v. Coccoma, 3:13-cv-1340) was pending at the time of his decision, where Mr. Neroni questioned mental capacity of Judge Dowd for claiming that a urinal was built by a law school in his honor, as part of a discussion of child custody/visitation on record, intentional retaliation comes to mind. Judge Dowd imposed costs upon Mr. Neroni for relying upon dicta in making his motion and verbally admonished me for relying upon dicta also, stating that I should have known better than to do that.
Of course, Judge Dowd is himself relying on dicta in Stump v. Sparkman where he made a motion to dismiss based on absolute judicial immunity for malicious and corrupt acts defending against Mr. Neroni's pro se federal lawsuit against him. Apparently, Judge Dowd did not tell his attorney, the New York State Attorney General, as he told me in my husband's case, that his attorney should know better than to rely on dicta in applying absolute judicial immunity.
Quod licet Iovi, non licet bovi. It is an ancient Latin phrase about double standards meaning "what is allowed to Jupiter, is not allowed to a bull". Yet, because double standards for high-and-mighty existed since time immemorial does not mean that they should exist in a democratic society.
In Delaware County Supreme Court, it appears to be a claim of right for the judges.
The decision of Judge Tormey that Judge Dowd claimed to be dicta was not even dicta, but even if it was, Judge Dowd applied a double-standard to his own right to rely on dicta and denied that same right to Mr. Neroni. That is exactly what Judge Tormey did where he ruled in Mr. Neroni's lawsuit against Judge Becker that only the New York State Attorney General may decide whether he has a conflict of interest in representation of state actors pursuant to Public Officers Law 17, while Judge Tormey (without disclosure to Mr. Neroni or me as his counsel) raised the very same arguments about the conflict of interest of the New York State Attorney General on his own behalf, where Judge Tormey was sued.
Delaware County Supreme Court appears to have a pattern and policy where judges deny litigants appearing in front of them the same rights they are claiming in individual litigation brought against them.
Nothing like sighted justice and result-oriented jurisprudence in Delaware County Supreme Court.
Should Judge Dowd be taken off the bench for his shenanigans with his off and on application of dicta to judicial immunity for malicious and corrupt acts - with a "yes" if it concerns himself and a "no" if it concerns dismissal of a case and resulting return of a law license to a former attorney who dared to sue Judge Dowd?
Sunday, May 25, 2014
I do not care which one of the Neronis did it! I will punish anyway! And don't you tell me I am biased - for I will punish you some more...
After Judge Becker was served with the lawsuit on June 27, 2011, he punished Tatiana Neroni on the following dates:
- June 30, 2011;
- August 10, 2011;
- August 12, 2011
On August 12, 2011 Judge Becker punished Tatiana Neroni in Supreme Court case Shields v. Carbone, Delaware County Index No. 2009-440, among other things, for the motion to recuse that her husband Frederick J. Neroni made in a DEC administrative proceeding.
The Appellate Division, after being fully advised of what happened, affirmed the sanctions and stated that there is no reason to believe Judge Becker was biased.
On November 18, 2011, 3 days before his own motion to dismiss Tatiana and Frederick J. Neroni's lawsuit was scheduled to be heard in court, Judge Becker punished Frederick J. Neroni for the statement made by Tatiana Neroni: "I will not allow remediation on my property" (Tatiana Neroni, co-owner of the property, was not included into the administrative proceeding as a party), Martens v. Neroni, Delaware County Index No. 2011-432.
No bias, huh?
See the update on the ongoing confusion as to me-as-my-husband (and vice versa) by the courts as of August of 2016 here.
Saturday, May 24, 2014
Should these two judges be taken off the bench for using courts as their own fiefdom to settle personal scores, even if it means misrepresenting the record and misapplying the law?
Now, when an attorney does something like that, he will be sanctioned - by the judge.
When a judge is doing it, the Commission on Judicial Conduct takes a position that anything the judge did in litigation must be reviewed on appeal only, and there is no violation of discipline for the judge in misrepresentation of the record.
I am not satisfied with such an answer.
When the judge looks at a sheep and says he sees an elephant, the judge should check out his glasses, his medications or go see a doctor.
Yet, that's what happens in court, and appellate division, astonishingly, affirms.
Name of judge and case name
What the judge said in his ruling
Shields v. Carbone,
Delaware County Supreme Court,
Index No. 2009-440
· That I was an attorney at the time administrative proceedings regarding a pond on my husband’s property were held
· That I made a motion to recuse in those proceedings
· That I was fined by the DEC Commissioner in those proceedings
· That my motion to recuse was part of my pattern to make such motions
· I was admitted to the bar in 2009, the proceedings were held in 2006-2008
· I did not make such a motion, I was not allowed to intervene and be a party in that proceeding
· I was not fined, I was not even allowed to be a party
· For obvious reasons, that was not true, since I was not a party, not an attorney for a party, was not allowed to participate and did not make the motion
Neroni v. Follender, Delaware County Index No. 2013-331
· That there was a case (singular) M & C Brothers, Inc. v. Torum which was the basis of my lawsuit
· That I failed to state a cause of action for fraud upon the court and did not plead it with specificity when I said that Attorney Follender defrauded the court by consistently, on record, claiming that I am the attorney of record in Torum II when I wasn’t (coincidentally, also a judge in the Town of Denning, Ulster County, Judge Tormey “happens” to keep being assigned as a judge of choice to preside over cases where judges are parties to an action, whether they are sued as judges or not)
· There were two cases by such short name, with two different Index No., filed at different times, one where I was an attorney of record and one where I wasn’t
· Naturally, when the judge refused to see two different cases with two different numbers, different parties, different attorneys of record, different filing dates, different procedural history – I doubt that even a good shrink will help
As an illustration, this is a piece from Judge Becker's decision against me in Shields v. Carbone, Delaware County Index No. 2009-440, dated August 12, 2011 where he clearly states that I participated in DEC proceedings as an attorney, made an improper motion to recuse, was fined $10,000 by the DEC Commissioner and was ordered to conduct remediation on my property.
This is a picture from the New York State court administration website showing that I was admitted to the bar in 2009 (I updated this blog on May 25, 2014).
At the time Judge Becker made his decision in Shields v. Carbone, on August 12, 2011, he had in front of him a motion for a summary judgment in the DEC proceedings he is referring to in Shields v. Carbone.
He made a decision in these proceedings in October of 2011.
These are portions of that decision where Judge Becker shows knowledge that the DEC administrative proceedings occurred before 2009 when I was admitted to the bar:
Moreover, Judge Becker also reflects in his decision that he knew from the record that the only motion I made there is to intervene and vacate the decision on liability for failure to include me as a necessary party, not a motion to recuse, and that the motion was denied, I was not a party to the proceedings and could not, thus be sanctioned, ordered to pay a fine or ordered to do anything with the property:
Yet, having that record in front of him, he says the opposite in Shields v. Carbone:
And, having deciding the DEC case without imposing any sanctions on me for my alleged motion to recuse, without even mentioning such a motion (because it was never made), without affirming any alleged fines against me or any alleged orders of remediation against me (which were non-existent), Judge Becker never went back to Shields v. Carbone, never acknowledged his mistake and never vacated his decision sua sponte.
Instead, he sent his decision to the disciplinary commission, misrepresentations of the record and all.
This is what I call intellectual dishonesty - or dishonesty any way you look at it.
When the Appellate Division affirmed Judge Becker's sanctions against me, while ignoring his misrepresentation of the record of the DEC proceeding, the transcript about his ex parte communication between Judge Becker and the Delaware County Attorney Richard Spinney, and despite this obvious dishonesty AND stated that the judge had no bias against me, that was a separate act of intellectual, and any other, dishonesty.
Both of judges made their misstatements in order to be able to impose sanctions upon me, because otherwise there was nothing to impose them for.
Judge Carl F. Becker used my alleged actions as an attorney when I was not an attorney and was not doing anything in an administrative proceeding where I was not allowed to join, where I did not make the motion to recuse and was not fined by the DEC Commissioner, to justify sanctions against me. The Appellate Division affirmed.
Judge James C. Tormey sanctioned me, first, for making a motion to recuse him because Attorney Jonathan S. Follender of Arkville, New York had the audacity to ask Judge Tormey to punish me, among other things, for bringing a federal case Bracci v. Becker (dismissed without reaching the merits on jurisdictional grounds) where I asked to join Judge Tormey himself as a supplemental defendant (the case is currently on appeal in the 2nd Circuit). Judge Tormey considered it appropriate for himself to preside over a case where he is asked to punish me for bringing the federal litigation against himself. As I said, no shrinks can help with such behavior, only taking off the bench can.
Secondly, Judge Tormey sanctioned me because he allegedly read the record (which he did not, as the court sign-out sheet showed), saw one "Torum" case there while I was talking about two, one where I was attorney of record until August 10, 2011 and where subject matter jurisdiction of the court ended on that date with satisfaction of judgment, and another which was initially heard on August 12, 2011 where I did not represent anybody, which was derivative to Torum I and in which the court (Carl F. Becker, by the way) lost subject matter jurisdiction before the hearing, on August 10, 2011, with the same satisfaction of judgment.
That did not prevent Mr. Follender from trying to squeeze from the case as much counsel fees as he could, given favorable treatment by Carl F. Becker, and to badmouth me for frivolously not appearing in an action where no affidavit of service of the initial pleadings was filed, where I was not retained by any parties, where I did not file a notice of appearance, where I was not assigned by the court, and where subject matter jurisdiction of the court died two days before the initial hearing.
When a motion to renew or reargue was made, Judge Tormey rejected it because he allegedly did not see in it anything new, even though there was plenty of new evidence, and even though it was not based only on new evidence, but also asked to reargue because Judge Tormey imposed sanctions upon me based on his belief that there is only one Torum case while there were two.
Why such an effort? Because Judge Tormey by that time already sent his sanctions to the disciplinary committee, obviously in a hope that his sanctions will be the last straw to disbar me, especially that he mentioned that an attorney was suspended for what I allegedly did by bringing a lawsuit for fraud, fraud upon the court and defamation against Mr. Follender.
Mr. Follender stated I was an attorney of record in Torum II, that I did not show up when I was supposed to, caused my clients' default and should be sanctioned.
Judge Becker believed it (he would have believed that I fly on a broom in order to sanction me, but anyway) and scheduled a frivolity proceeding, where I did not come, a year after the court lost SUBJECT MATTER jurisdiction.
Was it fraud? Of course, it was, both by Mr. Follender, his law firm and his client on whose behalf he was advancing his fraudulent arguments.
Was it defamation? Of course, it was, and it was in fact defamation per se, because Mr. Follender was not only making false claims against me, but false claims damaging my professional reputation, did it knowingly, and did it to gain legal fees from me that attach to a finding of frivolous conduct.
Was any immunity involved? Of course not - the Torum II court where Mr. Follender was making his claims was without subject matter jurisdiction when the claims were made.
If it wasn't, my claim of fraud upon the court was valid, but, depending on finding or not finding jurisdiction, either fraud and defamation (if there was no subject matter jurisdiction) or fraud upon the court (if there was subject matter jurisdiction) were valid claims against Mr. Follender.
Did Judge Tormey care?
Of course not - all he cared was to exact personal vengeance against me, please the assigning judge Michael Coccoma (whom I pissed off by asking to sanction his wife in a private civil actions where his wife concealed the death of her client from a court and made a motion for a court-ordered deposition after the death of her client and after jurisdiction of the court abated), and save Attorney Follender (a brother-judge) from a lawsuit.
Judge Tormey's personal vengeance was to have me disbarred for daring to make a motion to include him as a supplemental defendant and exposing him on record in federal court and in Neroni v. Follender (motion to recuse) for his ex parte communication with the NYS Attorney General in the state law case Bracci v. Carl F. Becker which he dismissed after that ex parte communication (and NYS Court Administration claimed that the video recorder broke and there are no security tapes of that ex parte powwow for me to see), and for that reason he preferred not to correct his obvious, glaring, screaming mistake of claiming that there was just one underlying Torum case instead of two.
All of that is enough to take any single judge off the bench many times over.
Both Judges Becker and Tormey are still on the bench.
Does Judge Tormey have a history of not caring about the law and using it to achieve his own ends?
Yes, he does.
Why is he still on the bench?
Was he allowed to keep his robe after the political espionage scandal and after the federal lawsuit was settled for $600,000 taxpayer dollars on a condition that he now has to preside over cases against judges as a penance to the court system and make them go away?
Should Judge James C. Tormey be called instead Judge Tormey the Closer? The hat fits remarkably.
Judge Tormey has "closed" three lawsuits against judges or people associated with judicial system in 2011-2013, and that is only where I was the plaintiff, who knows how many more of such cases Judge Tormey "closed".
My cases are:
- Bracci v. Carl F. Becker
- Neroni v. Stephen Zayas (member of attorney disciplinary committee who brought a fraudulent charge against me claiming that I failed to appear in a deposition in the same Torum I case at the time when I was not admitted to the bar)
- Neroni v. Follender
That Judge Tormey could be disciplined and could lose his robe with or without a decision in the federal lawsuit, is clear from the fate of his co-defendant in the federal lawsuit Judge Bryan Hedges who was taken off the bench on an accusation of sexual misconduct which he committed when he was still a law student, 40 years before the claims were made, when all statutes of limitations already expired.
Records of the federal lawsuit against Judges Tormey and Hedges and records of the disciplinary proceeding against Judge Hedges that I personally reviewed and have copies in my possession, give a glimpse as to why Judge Hedges was thrown under the bus after all these years, and Judge Tormey was spared and was "only" ordered to serve as a "closer" for the judicial system.
According to the affidavit of plaintiff Bobette Morin in the federal action, Docket 143, Judge Tormey and his defendant Voninski asked her to engage in political espionage against a judge of Onondaga County Family Court who was running for the seat of a Supreme Court Justice on a democratic ticket.
When Ms. Morin refused to do that and retaliation followed, it was Judge Hedges who disclosed to her that Judge Tormey's assistant targeted her for destruction.
According to pleadings in Judge Hedges' disciplinary proceedings, Judge Hedges was turned in for discipline by Onondaga County District Attorney William Fitzpatrick after he refused to pay the alleged victim who was supposed to share that payment with the district attorney - it is in the pleadings (Judge Hedge's Respondent's Brief summarizing the evidence)!
This is as corrupt as it can go, and yet, the District Attorney still is in office, still has his license and is "serving" on state court commissions and in associations shaping up state policy on sentencing and ethics in government.
My research on Westlaw showed that the district attorney William Fitzpatrick was not even censured, and, since he continues to act as a district attorney, he was not suspended or disbarred for his attempt for extortion from Judge Hedges which was reported, through sworn testimony, to the New York State Commission of Judicial Conduct.
On the opposite, in the Orwellian world that we live in, that same district attorney was later selected to serve on the State Committee for Ethics, was appointed in 2010 by Judge Lippman to the New York State Permanent Sentencing Commission where he still serves at this time and is now the Chair of the Ethics Committee of the State District Attorney's Association for the Fair & Ethical Administration of Justice. Even though I am not a believer in a Supreme Being, all I can say is "God help New Yorkers" because nobody else will...
In December of 2013 Mr. Fitzpatrick co-chaired the NYS Commission for Ethics in Government and submitted a report on investigation of public corruption... Mr. Fitzpatrick's request to Judge Hedges, through the alleged victim or her mother, to pay the alleged victim of his misconduct 40 years after the fact, when all statutes of limitations were over, in order for Mr. Fitzpatrick to share in the bounty, was not part of the report.
The interesting detail is that it has been reported in Morin's court papers that the district attorney William Fitzpatrick was Judge James C. Tormey's roommate.
It has been also reported in the press that Judge Tormey "did not want" to settle, and allegedly settled only because Judge Hedges did, and Judge Hedges gave an interview to newspapers indicating that Judge Tormey was mad at Judge Hedges settling because he said the lawsuit divided the Family Court personnel. In fact, there is no such thing as a mandatory settlement in court, whether state or federal, and Judge Tormey did not have to settle simply because judge Hedges did, he could happily proceed to trial which is allegedly what he wanted.
The Commission for judicial conduct apparently turned a blind eye to all of those interesting details indicating that Judge Tormey and his law school buddy William Fitzpatrick who was not a party to the federal lawsuit, but who was mentioned in the court papers, held a huge grudge against Judge Hedges and were bent on destruction of Judge Hedges.
Judge Hedges stepped off the bench himself before brought in front of the Commission, and there was no need to hold a disciplinary proceeding against him.
What Judge Hedges was charged with was not behavior committed when he was on the bench or even when he was an attorney, and Judge Hedges legitimately questioned jurisdiction of the Commission, under the circumstances, to hold disciplinary proceedings against him.
The Commission's chief acknowledged that it was "uncommon" to pursue a judge for something he allegedly did 40 years ago, long before coming to the bench. The Commission "removed" Judge Hedges from office and the New York State Court of Appeals upheld the "removal". Yet, legally a person who already resigned from office, as Judge Hedges did before disciplinary proceedings started, and his resignation was accepted, already removed himself from that office as a matter of law and, legally, cannot be removed from the same office for the second time.
The removal decision was heralded as ensuring that Bryan Hedges will never sit on the bench again. Bryan Hedges resigned in 2012. He was admitted to the bar in 1973.
Before being admitted to the bar, people are required to have a college degree. If a person goes to college immediately after high school, and goes to law school immediately after college, he or she will graduate at 25 and be admitted to the bar at 25-26 years of age.
Bryan Hedges was admitted to the bar in 1973, being 25 or 26 at that time. He resigned in 2012, 39 years later, at that age of 64 or 65. The mandatory age of retirement in New York is 70. It would have been highly unlikely that Judge Hedges would ever run for office after he abruptly resigned, or, even if he did, that he would be elected. Therefore, his disciplinary proceeding was very likely a witchhunt and a revenge on behalf of Judge Tormey and his group of supporters, including William Fitzpatrick, because Judge Hedges actually confirmed Judge Tormey's office's involvement in the witcchhunt against Bobette Morin.
Yet, while the disciplinary proceedings against Judge Hedges were claimed to be done due to the topic of alleged child molestation, the real reason was apparently that the Commission was used as a tool of vengeance by Judge Tormey and the Court Administration, because, once against, Judge Hedges by the time the disciplinary proceedings were held already stepped off the bench voluntarily.
In fact, there was evidence before the commission that the alleged molestation never occurred, and that the alleged victim simply changed her story to get a payoff from Judge Hedges (also from Judge Hedge's Respondent's Brief in the Commission).
The picture that appears out of all of this mess is not pretty at all.
Judge Hedges broke the "rule of silence", told Ms. Morin that she was targeted by Judge Tormey's assistant (and obviously by Judge Tormey, too) for destruction, and refused to cave in for extortion from the alleged victim, her mother and the district attorney. Judge Hedges was also the most likely reason as to why the lawsuit in Morin v. Tormey had to be settled before trial, because Morin could testify on her personal knowledge about Judge Hedges' statement to her about Judge Tormey's and his assistant Voninski's plans. It is already in the affidavit and on Pacer.
Given the wealth of information against Judge Tormey and the gravity of sworn accusations based on personal knowledge, there was nothing that could prevent the Commission for Judicial Conduct from prosecuting Judge Tormey.
There is no statute of limitations for judicial misconduct, and so Judge Tormey could and still can be pursued for what he did to Bobette Morin, if the Commission really and genuinely cares about its duties to the people of the State of New York to maintain the ranks of the state judiciary clean of the black sheep.
A federal court's decision is not required to prosecute a judge (as Judge Hedges' case clearly shows - statutes of limitations in both civil and criminal case were long gone, they are 5 years in the state of New York, plus 10 years for the infancy toll).
Yet, Judge Tormey was spared.
Nobody is going to willingly disclose as to why, but actions, as always, speak louder than words.
Judge Tormey's settlement in Morin v. Tormey in the U.S. District Court for the Northern District of New York was finalized on 9/26/2011, as the docket sheet of the case indicates.
The New York State Attorney General's office represented Judge Tormey in that action in 2011.
The letter of the private counsel requesting participation in the January 12, 2011 conference is highly " irregular", because that counsel is not the official attorney of record at that time. At the time the letter is presented to the judge, the New York State Attorney General still represents Judge Tormey, and no other attorneys may step in without a court's decision granting them a motion to disqualify, which never happened.
So, Judge Tormey rules in my case that the NYS AG is the sole decision maker as to whether he has a conflict of interest in representing a state actor, but when that same issue concerns himself, he shared my position, but never disclosed that to me.
Immediately after his settlement, Judge Tormey was assigned by Judges Coccoma and Mercure to the lawsuit Bracci v. Becker in state court, a case for retaliation and misconduct against a judge, a case for which Judge Tormey was uniquely disqualified due to his just finished federal litigation of 4.5 years.
On November 22, 2011, 2 months after his settlement in federal court, Judge Tormey presides over a motion to dismiss where NYS AG's office represents Judge Becker, sued in his individual capacity.
Judge Tormey does not disclose the recent federal litigation against him on the issue of retaliation to me as the attorney for the Plaintiffs, but states in a transcript, in response to my statement that I do not know yet whether I will pursue newly emerged claims in federal court that nobody knows better than him what a pain federal court is.
Judge Tormey was ethically obligated not to preside for 2 years after the end of his federal litigation over a case where NYS Attorney General appears in front of him, and to disclose representation of NYS AG's office, yet, preferred to not disclose the representation by the NYS AG's office in the year where he was presiding over my Bracci v. Becker case, which was a clear ground for disqualification.
Instead, Judge Tormey conducted a powwow with Judge Becker's attorney in the courthouse and dismissed the case against judge Becker, and then the NYS Court Administration claimed that the security tapes of the ex parte communication were unavailable because the video recorder allegedly got broken.
It is interesting to mention that in his decision dismissing the lawsuit against Judge Becker Judge Tormey rejected my argument that there was a conflict of interest in the NYS Attorney General representing Judge Becker, sued in his individual capacity, in Bracci v. Becker lawsuit, and at the same time appearing in front of him in a DEC proceeding.
Judge Tormey stated that it was the sole and absolute discretion of the New York State Attorney General to decide whether NYS AG has a conflict of interest in representing any state actor.
Yet, Judge Tormey failed to disclose at that same time that he took the same position as I did in his own federal litigation that same year, when he hired a private counsel for himself, claimed conflict of interest of the New York State Attorney General, and claimed that he is entitled for New York State to pay that private counsel, even though he was sued for retaliation against an employee and for attempts to engage the employee in a political espionage, something which had nothing to do with his official duties!
After he dismissed my lawsuit against Judge Becker, without disclosing his disqualification, Judge Tormey dismissed two more lawsuits against people which are part of the judiciary.
One lawsuit was against Stephen Zayas, sued by me for fraud upon the court when he was still a member of the Committee for Professional Conduct, NYS Supreme Court, Appellate Division 3rd Judicial Department, and since resigned amid investigation (allegedly, over "inaccurate" time sheets), the other was against attorney Jonathan S. Follender ("coincidentally" the Town of Deming Justice, Ulster County), also for fraud upon the court.
Thus, within 2 years of the settlement, Judge Tormey has "served" and paid back the New York judiciary by working as a "closer" on three cases, engaged in ex parte communication to save Judge Becker, misrepresented the record to have the attorney who sued Judge Becker disbarred - and was neither investigated nor disciplined for his political espionage, persecution of attorney Bobette Morin, or for his shenanigans in Bracci v. Becker or Neroni v. Follender cases.
Logical, isn't it?
Only the logic is scary and the whole story reeks to the high skies of corruption.
Judge Tormey's retaliation against me is a matter of public record.
Any reader of this blog can go to the Delaware County courthouse in the state of New York, retrieve cases I am talking about and which are referenced in Neroni v. Follender case and see the truth of what I am saying.
Judge Tormey had the record of two cases in front of him, said there is one and sanctioned me as if there was one. And sent the sanctions immediately to the disciplinary committee. And refused to recognize his mistake even when I made the motion to vacate, renew and reargue and caught him in the lies that he reviewed the record when he never even signed it out, and documentary evidence regarding that is also in my motion to vacate, renew and reargue.
What I do know that judges like Judge Tormey and Becker, who go to the length of misrepresentation of the record in front of them in order to set personal scores with attorneys who exposed their misconduct do not belong on the bench, and people who keep them there are complicit in their behavior and are as guilty of fraud as those judges are, whether they are or are not covered by immunity.
In her affidavit to the federal court (Docket 143) Ms. Morin stated under oath that she was threatened by the court administrator Mr. Dowling that she has "pissed the wrong person" and that Judge Tormey wants to "get rid of her".
Now, both Judges Becker and Tormey, want to get rid of me - both for personal reasons, and the system obliges them.
I believe, a thorough investigation by whatever state or federal authorities who still remain faithful to the U.S. Constitution is in order to get out the hornet's nest of judges who do what they please to serve their own interests and eliminate whoever exposes their misconduct.
Of course, New York State Attorney General's office cannot engage in such an investigation because Judge Tormey is their former client, and that is exactly why New York State Attorney General's office should not be allowed to represent judges sued in their individual capacity for violating people's constitutional rights - because, among other things, it creates a conflict of interest and prevents the NYS AG's office from discharging its duties to investigate and root out corruption in the government.
But, it is my firm belief that judges like Tormey and Becker, who are ready to use/abuse all of their own and their powerful buddies' power in order to rain fire upon people who dared to expose their misconduct, should not be allowed close to the bench and should be taken off the bench a.s.a.p. before they did more damage to more people.
An investigation and disciplinary proceedings against these two judges are long overdue.