EVOLUTION OF JUDICIAL TYRANNY:

"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).

“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 cos
t.



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.



“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.

Sunday, August 31, 2014

A yet another method of discrimination against poor civil rights litigants was invented - delete important court cases from a cheap public retrieval system

I have written in this blog and in my other blog dedicated specifically to discrimination against pro se litigants in court, about various ways how courts may and do frequently discriminate against the poor, indigent and unpopular litigants.


Civil rights litigants, especially civil rights litigants suing judges are topping the lists of "unpopular" litigants.


Civil rights litigation is all but dead - with all the barriers invented by the trial-level and appellate-level courts to "clean their docket", or, in other words, get rid of civil rights cases without ever reviewing them on the merits.


More and more often, sanctions follow against civil rights plaintiffs, victims of unconstitutional conduct of government officials, for the mere fact of bringing a civil rights lawsuit - and that is where the court dismisses the case without reaching the merits, or, in other words, the court punishes a civil rights plaintiff while at the same time refusing to see whether what the civil rights plaintiff is saying about being the victim of unconstitutional conduct by a governmental official, is true or not. 


Recently, a brand-new way to discriminate against civil rights litigants was revealed.


Legal research is a big effort and comes at a high price in preparation of any appeal.  Civil rights litigants often proceed pro se, especially in cases where attorneys increasingly are afraid to take such appeals, for fear of sanctions "for frivolous" conduct.


Online law databases, such as Lexis Nexis and Westlaw require at least a year-long commitment and are prohibitively expensive.


Cheaper online legal resources are often inadequate.


A cheaper way to do legal research (for indigent and pro se clients) was, as far as I was told, to do free research of cases on the Internet, by key words, and, when key word search returns a case on point about a situation similar to what you have, to go to the federal governmental archive PACER.gov and retrieve the decision in the case, creating a precedent and quoting the law upon it relied.


PACER.gov, even though criticized for its cost of 10 cents per page which is more than the federal law allows to charge (the federal law only allows to charge enough money to maintain the retrieval system), is still much less than legal research will cost.


Law libraries in courthouses exist, but often they do not have federal cases, necessary for civil rights litigation, are not open every day, be located only in large courthouses far away from where an indigent person lives, requiring a civil rights litigant to invest in a car ride and gas, not to mention to lose a day at work, in order to do any kind of legal research in such a law library.


Well, now even a research through PACER will present a problem, because it has been recently reported that some seminal federal cases, necessary for civil rights litigants' appeals, will simply not be "available" through PACER - because many "old" and not-so-old court cases are being deleted from PACER without much fanfare


I had an experience in trying to locate an old case in federal court not through PACER, because certain information required for PACER was lacking.  From my communication with the court clerk, I understood that, possibly, the "hard-paper" archives might not even be in existence.  I was not able to retrieve documents I wanted in that particular situation.


So - several questions arise in connection of cleansing court cases off PACER.


If such court cases, which were already decided, are not available on PACER - where and on what terms are they going to be available?  What happened to the originals of pleadings? How can people look at them?


What will be the cost of such retrieval, not through PACER?


And, with the increasingly dropping prices in "cloud storage", why problems with PACER had to be resolved by blocking people's access to cases necessary for research instead of fixing the retrieval system?


Was it to make civil rights litigation even harder than it is now?

There is no place for legal arguments in Family Court in New York - forget your pesky law when you are in a court of law?

Last week I was told by a Family Court judge that Family Court is "not Supreme Court", and that making "alternative legal arguments" in Family Court is the equivalent of lying.


I have a copy of the official court recording where the judge says that, to protect myself against allegations of "lying" - again.


Actually, raising ALL legal issues you can on behalf of a client is attorney's duty to preserve the record for a possible appeal - and failure to do that may be actionable as attorney malpractice.


But, in Family Court, a court which has limited jurisdiction and is governed exclusively by a statute (legal rules), too many legal arguments somehow amounts to lying.  Of course, that "judicial opinion" is not supported by the Family Court Act. 


Moreover, lying - by definition - is not telling the truth about FACTS.  The distinction between facts and opinions is a basic distinction taught in elementary school.  Apparently, the judge, with high school, college, law school and at least 10 years of practice, does not appear to understand this distinction.


Therefore, there may not be any "lying" in advancing legal opinions on behalf of a client, especially where at issue are fundamental constitutional parental rights.


To me, any judge who intimidates an attorney by the nonsense that her legal arguments are somehow lying should be disciplined. 

Saturday, August 30, 2014

Oath of protection

I hear all the time about "sworn officers" and their "presumed" integrity - while at the same time, as an attorney working in criminal courts, in family courts, in federal courts in civil rights litigation, all I see is that police, prosecutors, social services, judges can do anything they want, with complete impunity, and no disciplinary rules, no criminal investigations, no rules of ethics, no civil lawsuits can reach them, no matter what kind of open, arrogant and blatant misconduct they commit.


Those "sworn officers", being it police officers, judicial officers, attorneys for the government or private attorneys (albeit "officers of the court") are, once again, "sworn" to protect the local laws, federal laws and the U.S. and the State Constitutions (in the state where they are in).


At the very same time, all kinds of "immunities" have been invented by courts, to the point that, for example, it is impossible to prosecute a judge even for malicious AND CORRUPT conduct while on the bench.  I learnt the hard way (dismissal of federal lawsuits, with sanctions), that what constitutes "conduct ON the bench" somehow includes a lot of conduct OFF the bench, simply because federal judges are also judges and simply ignore pleadings stating that certain conduct was OFF the bench and, thus, is not covered by their elaborate self-given immunity.


Apparently, if you are a judge, ANYTHING you do is absolutely immune.


The same is for prosecutors - in their "prosecutorial" capacity.


As to "investigative capacity" of prosecutors - they are entitled to "qualified" immunity, which is nearly always found.


What concerns police officers - "qualified immunity" is deemed so broad that legal scholars claim that it is practically impossible to get accountability of police officers for using excessive force, to the point of killing people.


As a recent example, the U.S. Supreme Court has ruled that officers were covered by qualified immunity when:


1) they wanted to stop a motorist for a light that did not work;


2) the motorist took off speeding (a bad decision, but not entitling police officers to shoot to kill - wouldn't you think?);


3) the police chose no better than to engage in a high-speed chase, thus, in my humble opinion, PERPETUATING that chase - the speeder would not be speeding if they would not be speeding after him, and it was only because of one bad light on the car;
4) the police shot at the motorist SEVERAL TIMES - and finally killed the motorists.


The U.S. Supreme Court has ruled that the officer were covered by qualified immunity, because as "reasonable officers" they were - guess - extinguishing a public safety hazard, a high speed chase.  Not by stopping - but by shooting to kill.


I absolutely "love" what the court said in the civil rights lawsuit against judges who were convicted in connection with the "Kids-for-Cash" scandal - I put it on top of this blog.




                “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.


Think about it once again:


             It is the OATH that a person is alleged to have VIOLATED FOR PERSONAL GAIN
             that REQUIRES - THE COURT OF LAW - YOUR PUBLIC SERVANTS - TO ABSOLVE
             OTHER PUBLIC SERVANT - WHO IS IN THE SAME CLASS OF
             PUBLIC OFFICIALS AS THE PRESIDING JUDGE - to absolve
             the possible VIOLATER OF CONSTITUTIONAL OATH  -
             FROM ANY - ANY - LIABILITY TO THE VICTIMS OF SUCH VIOLATIONS.


Is there anything as warped as this logic?  And as lawless?  And as self-serving?


Based on all the above, one inevitably comes to a conclusion that the so-called "constitutional oath of office" is simply a "trigger point of protection", because, in the opinion of Judge Caputo of the federal district court in Pennsylvania - it is!  The oath TO UPHOLD THE CONSTITUTION is the basis of the conclusion that VIOLATING THAT OATH will not have any consequences to the person who took that oath, BECAUSE he took that oath.


Once again - this is a judge who HIMSELF has been sworn to uphold the Constitution.  And the U.S. Constitution does not give permission to ANYBODY to violate it.


Obviously, the necessity to protect the judiciary as members of the same "corporation" is much stronger than the duties imposed by the oath of office.


The logic that the oath to uphold the U.S. Constitution is only a trigger of protection, and is meaningless otherwise, is so deeply entrenched in governmental - and judicial culture - that raising constitutional arguments in courts has become dangerous business, often leading to sanctions for "frivolous" conduct, especially if the claims of constitutional violations come against powerful governmental officials.


If oaths to UPHOLD the Constitution are only used to UHOLD VIOLATIONS of that same Constitution - do we really need the oaths of office?


Maybe, we need to eliminate all of them, as well as all immunities for violating them, and introduce clear and transparent system of duties and accountability for violating those duties for all public officials, with direct monitoring by the people - through, possibly, investigative grand jury power?


Since I do not see any other democratic mechanisms working to eliminate this perversity of justice, resurrection and empowering of investigative grand juries with criminal prosecutions of violators of public trust and state and federal laws and Constitutions should be in order.


And a legislative and, possible, constitutional reforms, on state and federal levels, are needed to implement that.


Otherwise, the so-called "rule of law" as it is now is truly a joke and is, in fact, the "rule of the few".









Collateral estoppel as the method to eliminate civil rights attorneys in New York

New York is a unique state.


It is one of the miniscule minority of cases which still gives its attorneys the least protection in disciplinary proceedings - disciplinary authorities only have to prove their case "by preponderance of the evidence".


Why?


Because courts want to clear their dockets, in other words, to do less, and do not want to confess that clearing their dockets is the true reason behind depriving attorneys of hearings in disciplinary proceedings.


How it works.


A civil court makes a decision that an attorney allegedly did something wrong. The decision is made
"by preponderance of the evidence".



If to discipline an attorney, a higher standard of proof is required (as in other states), then an attorney is entitled to a hearing.


Not in New York.


In New York the disciplinary court can simply rubber-stamp, without any further hearings, that if the lower court decided this way - right or wrong - the attorney must be disciplined.


But - wait a minute - attorney discipline exists to protect the public from attorney misconduct, isn't it correct?


And, if the lower court's decision is wrong, there is nothing to protect the public from, isn't it correct?


And, there is a dire shortage of attorneys who are willing to take cases for the poor, underprivileged and unpopular clients, as well as unpopular causes, isn't it correct?


And, attorney disciplinary bodies predominantly target solo attorneys engaged in protection of civil rights, isn't it correct?


So - when disciplinary courts deny civil rights attorneys a hearing before taking their licenses, reputations and livelihoods, they do not care whether attorneys did, in fact, commit any wrongs, and whether the public, indeed, needs protection, isn't it correct?


So, all these statements about attorney licensing and attorney discipline protecting the public is a lie to appease the public and conceal the true picture that courts are actually specifically depriving the public of their best chance of representation by suspending and disbarring, without hearings, civil rights attorneys, on pretextual grounds, isn't it correct?

Friday, August 29, 2014

Your truth may still be in bad faith!

Dialogue in the courtroom:




JUDGE:   I've read your voluminous pleading, with all those exhibits, all the 5-inch-thick motion, ad nauseam.


ATTORNEY:  But, Your Honor, the issue is vitally important to my client and myself, those are constitutional issues, and my arguments are supported by uncontroverted documentary evidence!


JUDGE:  I will reserve on the issue of sanctions as to whether your motions was made in bad faith and frivolously.




Translation:  I am still considering whether I should sanction you for presenting the truth to the court in bad faith and frivolously.


Go figure.

Judicial allergies to issues of judicial bias and misconduct

What happens to judges when they are requested:


1) to read a large pleading with a lot of exhibits;
2) that requires them to do a lot of research;
3) to rule on an issue of whether another judge committed misconduct?


In my experience, even a judge who is an otherwise nice and jovial person, would turn extremely nasty, rude and disrespectful to the party and attorney who caused the judge to read a lot and have to make these tough decisions, forgets about all rules of civility, yells at parties and attorneys, accuses parties and attorneys of lying without allowing them to properly rebut accusations, disregards procedural and substantive rules applicable to the proceedings ... You name it...


Why the issue of judicial misconduct tees off judges so much?


They are angels who can never make mistakes and can never commit intentional misconduct?


Yet, incidents when judges are disciplined do happen, more rare than rogue judges deserve it, of course, but such discipline does happen, see, for example, here, here, here, and here.


As of late, three judges were even convicted for crimes tied to their judicial office - two in Pennsylvania by a federal court, and one, again, in Pennsylvania, by a state court.


So - judges are definitely not saints.


I just think that judges should lighten up and not think that by making a motion pointing out judicial bias or misconduct a party or attorney is committing a sacrilege.


After all, is it so difficult to just do your job, even if it involves a sensitive issue?  If it is, maybe somebody else should do that job.

Friday, August 22, 2014

Pennsylvania convicted Judge Joan Orie Melvin - will New York convict Judge James C. Tormey for similar conduct?

As I wrote in my blog, the state of Pennsylvania convicted Judge Melvin of felonies for using court personnel in her political election campaign.


I also wrote about a New York judge James C. Tormey who was NOT convicted (not even charged) for trying to engage a court employee, an attorney, in political espionage against a judge, a Democratic judicial candidate, for the benefit of the Republican party.


And you know why James C. Tormey was not investigated or prosecuted?


The District Attorney in his County was his law school roommate, and the New York State Attorney General was his attorney representing him in a civil lawsuit on the same issue.


Yet, I repeat the question to the powers-that-be - why is Judge Tormey still on the bench and when will he be prosecuted for what he did, the same way Judge Melvin in Pennsylvania was prosecuted?


If Judge Melvin is a felon for practically the same conduct - why James Tormey is not only still an attorney, but a judge, and a Chief Administrative Judge of the 5th Judicial District?


Is there any semblance to the rule of law, "nobody is above or below the law" principle in New York?


Does not appear that way to me.

Yet another Pennsylvania judge convicted of corruption - but not disbarred and not sent to prison. Why such leniency to a "member of the pack"?

I've written in this blog about the permissive culture bred, no doubt, by the self-imposed immunity given by judges to themselves for their own malicious and corrupt acts on the bench.


That culture perpetuates the court system where any type of misconduct is met with unapologetic "so what" - and, more than that, sanctions against whistleblowers by the culprit judge and by federal judges, if the victim goes to federal court to seek any kind of remedies, not even necessarily monetary remedies against the culprit judge.  Federal courts refuse to even pronounce (declare) that another judge violated the victim's constitutional rights - and instead often award against the victim attorney's fees of the wrongdoing judge, to deter the victim from further trying to vindicate his or her constitutional rights through a civil rights action.


The absolute judicial immunity for malicious and corrupt acts for judges exists in the United States for less than 40 years.


Yet, during this period of time, several generations of judges - and their family members - grew up knowing that they are absolutely immune for corrupt acts - and who will prosecute them?


In the atmosphere where judges are rarely disciplined, and even more rarely prosecuted for corrupt acts on or around the bench (including their election campaigns), judges, as well as their relatives and friends may feel that donning a black robe protects them completely from any reach of the law.


Fortunately, that was proven wrong in Pennsylvania.


The state, obviously, started a crackdown on courtroom corruption.  After all, Pennsylvania is the "home state" of the despicable "kids for cash" scandal where two judges were trading illegally obtained sentences of juveniles for kickbacks from private owners of the juvenile detention facility which the judges were filling, for a hefty fee.


Unfortunately, these judges escaped civil liability based on the concept of "absolute judicial immunity for malicious and corrupt acts".  The quote on top of this blog about the Ciavarella case spells it all out.  The judge-created law that has nothing to do with the U.S. Constitution that every judge is sworn in to protect when he or she dons the black robe operates this way: the moment you say the words of the oath of office and pledge to protect the U.S. Constitution, the very next moment you can break that oath and violate that same U.S. Constitution - and you will be immune of your malicious and corrupt acts.


This warped logic bred many a judicial monster, and only a few of them get caught, disciplined and prosecuted.


Judge Joan Orie Melvin is known as a plaintiff in a lawsuit Melvin v. Doe, where she sued to uncover identity of an anonymous employee who claimed the judge committed misconduct by trying to orchestrate who is going to take a judicial vacancy by lobbying the state governor.


Judge Melvin lost on that lawsuit (fortunately for the county employee) on 1st Amendment grounds.  One can only imagine what would have happened had the "employee" been an attorney and had the judge won her lawsuit.  Obviously, retaliation would have followed, otherwise why would a judge even seek to reveal identity of a blogger.


Recently, Judge Melvin was convicted, along with her two sisters, one of them a state Senator, of various crimes connected with using legislative and judicial staff in political campaigns.


Of course, the Orie sisters vigorously claimed that the family of the District Attorney who prosecuted him has a financial interest in expansion of legalized gampling in Pennsylvania, while the sisters allegedly took a strong stand against that, and thus the criminal prosecution by Mr. Zappala, according to the sisters, was politically (if not financially) motivated.


It appears that, unless large financial interests are involved among "powers that be", misconduct of public officials does not see the light of day and is not addressed.


But - here is the worst part.


The sentence that the judge was given (and sentences are meted out by judges, not by juries) is, let's say, mickey-mouse, as compared to what a "Joe the plumber" would have gotten for much less.  Judge Melvin got 3 years of house arrest, probation, $20,000.00 in fines and to write letters of apology.


It is arguable not a big deal for a prominent family counting doctors and 5 lawyers, to come together and pay the fine.


Yet, nobody actually required Judge Melvin to do hard time in prison and be subjected to the same indignities other felons are subjected to.  And why the leniency?  Because she was a judge and the sentencing judge felt sorry for her as a "member of the pack"?


Yet, the PA public records show that Judge Melvin's law license was only "suspended", on a request to suspend her license "temporarily".  So, the disciplinary board did not request Judge Melvin's disbarment.  What she did was not enough to warrant disbarment?


Yet, when a PA attorney Wrona claimed that a judge suborned perjury (a political claim fully protected by the 1st Amendment), that somehow warrant a disbarment in the same state?


I wrote recently about yet another judge who simply had sex with a witness in his chambers, repeatedly, and, in text messages, consulted with his paramour as to what kind of punishment to mete out in a criminal case against her husband.


The State of Michigan took him off the bench, but allowed him to continue to have a law license, and he is listed in the Michigan State bar as a "member in good standing".


I wrote here about two sons-of-judges and two retired judges in New York (ret. judge Robert Harlem, his son Richard Harlem, ret. judge Frank Getman, his son Michael Getman, all of Oneonta, NY) who were not disciplined at all, even though they got investigated by the New York State Attorney General for fraud.


Judge Harlem was actually investigated for actions very similar to what  Judge Melvin in PA was convicted - using court personnel for personal gain, even though not in a political campaign, "only" to help the sitting judge illegally practice law while on the bench, see my blogpost on this subject, here, see some of my blogposts about misconduct of other politically connected attorneys here and here.


I wrote about a judge who used a county employee, who was also a personal friend and a party in an action from which he only recently recused without any disclosures, after rendering decisions favorable for that employee, to lie for him in his political campaign flyer.


I wrote about misconduct of attorneys out of the New York State Attorney General's office, of attorneys affiliated with judges, employing their relatives and escaping investigation and discipline for misconduct through such protective employment.


More on that topic will be posted shortly.


I wrote about attorneys who participate in behind-the-scenes communications with judges and who quite literally treat judges to lavish monthly dinners, international and national free travel through the American Inns of Court and God only knows how many more similar organizations.


More on that topic will be posted shortly.


All of the above  descriptions involve some form of corruption of attorneys ,judges or both (in New York, some judges are attorneys and some are not).  And yet these attorneys escape discipline and, if an attorney criticizes a judge, discipline follows immediately and most viciously.


None of individuals whose misconduct I described were disciplined. 


This permissive culture throughout the United States encourages judges to violate the law and to raise children who violate the law when they become judges in their own right.   Such permissive culture  destroys public trust in the integrity of the judiciary, and the only way to restore that trust is to bring real accountability against errant judges.


And, not surprisingly, real accountability comes only with a private cause of action, in other words, if members of the public, victims of judicial misconduct, are given a real right to sue and get a remedy against a judge who intentionally or corruptly violated their constitutional rights.


Otherwise we will have to wait until the hell freezes over - or until the judge crosses some powerful financial interests - or until some really bad publicity scandal erupts - to bring the rogue judges to accountability, and even then, with a felony conviction, they will get from their fellow sentencing judges only "a house arrest" and from their fellow disciplining judges no disbarment.  Because the sentencing and the disciplining judges have their own vested interest to create the law that would be lenient to them, if their time comes.   Sweet.




Multiple people knew of Judge Melvin's wrongdoing going back years.  Yet, until the criminal investigation, nobody dared to report it, much less to bring a lawsuit against a powerful judge, sister-of-a-Senator.


There must be laws introduced that will put an end to immunity for corruption in office of high-standing public officials with tremendous power.  Until then, presumption of integrity of judges will remain a bad joke.


Really, Judge Melvin should have been removed from the bench long before she was convicted of felonies.  Let's make the rule of law work.



Tuesday, August 19, 2014

If criticizing judicial misconduct makes me "a slayer of the New York judicial system", is the system worth saving?

An attorney who wanted to get an advantage in civil litigation against my client, and who was making mistakes that she wanted to have the court overlook, tried a "smoke screen" tactic by asking the court to disregard all of my submissions to the court (based on the law and facts in the record) because I am allegedly "a slayer of the New York judicial system".


The attorney provided to the court copies of my blogposts criticizing well documented judicial misconduct as a backup of her argument that I am "the slayer" and should not be listened to by any court for that reason.


Apart from the obvious stupidity of such a tactic and its clear political undertones, an interesting question arose.


If criticizing obvious flaws of the court system makes me somehow a destroyer of that system - is that system even worth saving?

Saturday, August 16, 2014

Do you believe in spirits - revisited

After the execution that lasted 2 hours, which I described here, yet another condemned prisoner applied to the U.S. Supreme Court for the stay of his execution because the drugs that take 2 hours to kill may be used on him, too, constituting cruel and unusual punishment, prohibited by the 8th Amendment of the U.S. Constitution - and by the International Treaty against torture.

The U.S. Supreme Court's response?  Stay was denied, because "there is no question about the brutality of this crime, or doubt of Michael Worthington's guilt". 

The execution actually (reportedly) took 10 minutes, but that is not the point.

The point is that the court, judges, human beings who denied the stay of execution of another human being by drugs despite a clear possibility that the execution will turn into a 2-hour unconstitutional torture, as it already happened a short time prior to the prisoner's application,  did not know the future, did not know that it will take "only" 10 minutes for the condemned prisoner to die.

The denial of the stay was because of the "undeniable guilt" of the condemned prisoner and because of the "brutality of the crime".

But - it was not the point.  The point was whether such an execution was cruel and unusual punishment.

So - in the decision of the highest court, comprised of judges and lawyers who were sworn to uphold the U.S. Constitution, including its 8th Amendment prohibiting CRUEL AND UNUSUAL PUNISHMENT, no matter what the brutality of the crime or whether guilt is or is not undeniable, the brutality of the crime and the guilt of the prisoner outweighed the U.S. Constitution the judges were sworn to uphold.

What should be done to the judges who decided to deny the stay?  My suggestion - they must certainly be taken off the bench.

But who will take a U.S. Supreme Court justice off the bench?  There are no real enforceable mechanisms to do that.

And this type of decisions - not on point, unconstitutional, but final and causing harm to a human being - is the whole problem with the U.S. court system.

My personal opinion - judges should be held personally responsible and should be taken off the bench for decisions that blatantly disregard issues in front of them and their own oaths of office.

There should be an enforceable mechanism by which the public can remove such judges from ANY position, up to the U.S. Supreme Court.

Will any U.S. representative in the Legislature dare to promote such a statute?


How federal courts discriminate against civil rights appellants

I do not raise these issues out of a hat.  Life suggests them.

This week my husband received a notification from the clerk of the U.S. Court of Appeals for the 2nd Circuit on his pro se appeal in the case Neroni v. Coccoma which I extensively described on my blog, for example, here, here, here, here, here, here and here.

As you see from my previous blogs, Mr. Neroni's case raise very, let's say, "sensitive" issues for the government.

Most likely, Mr. Neroni's appeal will have at least one issue that will have to be certified to the New York State Court of Appeals, because the U.S. District Court judge Gary L. Sharpe, in his zeal to help out a wife of a judge and a judge, and to absolve from a finding of misconduct the New York State Attorney General, his own son's employer, has gone too far and has actually amended through interpretation New York Public Officers Law Section 17 providing for authority of the New York State Attorney General to provide legal representation at taxpayers' expense, something that Judge Sharpe was not authorized by existing law to do.

As I wrote before, Judge Sharpe allowed the New York State Attorney General to represent two individuals, the wife-of-a-judge Ellen Coccoma, and the retired judge Eugene Peckham, claiming that they were NOT state actors, as required for jurisdiction under the federal law, because they were sued for their private conduct.

Apart from the legal issue that being a private attorney does not always absolve such a private attorney from liability under the 42 U.S.C. 1983, the Civil Rights Act, when the New York State Attorney General's office advanced an argument on behalf of two clients that they were NOT state actors, the New York State Attorney General at the same time has proven that it was committing attorney misconduct by extending taxpayer-backed free representation to those private attorneys.

Judge Sharpe protected both the NYS AG, Ellen Coccoma and Eugene Peckham by extending the Public Officers Law 17 to cover private attorneys under the circumstances where they are sued (allegedly) also as state actors in the same action.

By his decision, Judge Sharpe amended Public Officers Law Section 17 through his interpretation, which is prohibited under the doctrine of separation of powers, by Article III of the U.S. Constitution. 

By his decision, Judge Shapre disenfranchised (stripped of voting rights) New York State voters for the Legislators, because in New York, amending statutes enacted by the Legislature, can be done only by the Legislature, and not by state or federal judges.

Since this is a sensitive issue, it should be addressed with care, and a pro se appellant should be given ample opportunity to research the issue and present his argument on appeal, on the issue of grave public concern - creation of an "assigned counsel for the rich" precedent at the time when majority of litigants may not get access to court because they cannot afford legal representation.

So what did the U.S. Court of Appeals for the 2nd Circuit do when an appeal of such a decision was filed?

It restricted Mr. Neroni's time to file the appellant's brief to 35 days from the time of notification that his brief is put on the so-called "expedited calendar".

Here is the rule of the 2nd Circuit for the "expedited calendar".



The claimed purpose of the "expedited calendar" is to "facilitate prompt determination of appeals from district court orders" on certain grounds:

  1. dismissal for lack of jurisdiction;
  2. dismissal, where there is jurisdiction, but the plaintiff (including a civil rights plaintiff), according to the district court, failed to state a claim entitling him or her to relief in court;
  3. the complaint was frivolous;
  4. dismissal was on grounds specified in 28 U.S.C. § 1915(e)(2), a statute dedicated with dealing with "in forma pauperis" (poor, indigent) appellants, which includes the following grounds for dismissal:
    1. the allegation of poverty is untrue;
    2. the action or appeal is frivolous or malicious;
    3. the action or appeal fails to state a claim;
    4. the action or appeal "seeks monetary relief against a defendant who is immune from such relief" (see photocopy of the statute below)




First of all, the declared goal for the "expedited calendar", of "facilitating prompt determination of appeals", of orders made on certain grounds only, in my legal opinion, makes no sense . 

The goal of an appeal, generally, is for the appellate court to determine whether the district court has made an error of any kind, including the error of dismissing the action on any grounds.

By the "expedited calendar rule" appellants, including


  • civil rights appellants, including 
  • pro se appellants, including
  • poor/indigent appellants, including
  • civil rights pro se indigent appellants,

are given LESS TIME  to do research and present arguments to the appellate court than appellants who appeal from later stages of litigation in district courts, merely on the basis that district courts made a potential error of early dismissal of their lawsuits.

Thus, the type of error of the district court determine, for the U.S. Court of Appeals for the 2nd Circuit, the rights of civil rights plaintiffs/appellants on appeal.

First of all, this is a very convenient rule for the district courts.

As long as a district court dismisses a civil rights lawsuit early on, erroneously or not, the victim of the district court's error, by virtue of that error, is given less rights on appeal than an appellant who appeals, let's say, from the summary judgment or a jury verdict of the same district court.

Such a rule practically encourages district court into sloppy review of motions to dismiss, because by restricting rights of appellants based on the type of error of the district court, the appellate court practically signals to the district court its deference and support of such of whatever decisions made by district courts on the "expedited" grounds, no matter how erroneous.

And that is, ladies and gentlemen, an unconstitutional pre-judgment of appeals and denial of access to courts by a federal appellate court, predominantly to civil rights litigants.


The ministerial duty to take out the trash?

In addition to the above arguments, the question remains as to how shortening the briefing schedule, especially for unrepresented and poor pro se parties, fulfills the declared purpose of the "expedited calendar rule" of the 2nd Circuit- how does it "facilitate prompt resolution of appeals"?

Further explanation of the technology of discrimination is contained in the last sentence of the "expedited calendar rule" where the 2nd Circuit bluntly states that any requests to the court to extend the shortened briefing schedule are

  1. governed by the Local Rule 27.1.

Translated into plain English, the 2nd Circuit does not want to  hear the puny complaints of pro se poor and, possibly, illiterate, appellants that they,  for example, need time to read and research for purposes of such briefing, and that such research may take them extra time, as compared to represented counsel whose attorneys have instant access to research databases.

Here is the Local Rule 27.1 in its full glory.








The rule clearly shows that the court pushed its "disfavor" of requests to extend time to perfect appeals (file appellate briefs) to such a degree that it does not even want to do its duty of review of people's motions, it delegated review of such motions made TO THE COURT and asking for judicial review of those motions, to a non-judicial employee, the clerk of the court, see Local Rule 27.1 subsection (c ), also included as a photocopy for your convenience above.

Thus, instead of having judicial review of their applications, appellants who are already victimized by certain types of errors by the district court, are further victimized by the appellate court through restrictions of their rights based on the type of error made by the district court and by the denial of judicial review of their motions to the court to give them equal rights with other appellants on constitutional grounds, because equal protection, access to courts and anything that restricts it are constitutional grounds.

The 2nd Circuit judges are each sworn into office under Article III of the U.S. Constitution.

Federal judges are chosen and recommended for appointment by the President of the United States and confirmed by the U.S. Congress after confirmation hearings.

These judges have ABSOLUTELY NO RIGHT to delegate judicial review and resolution of legal issues on motions from parties to non-judicial personnel.

But, apparently, in order to "facilitate prompt determination" of, predominantly, the "facilitation" turns into rubber-stamping the dismissals of the civil rights cases by the district courts.

Civil rights cases are most often dismissed on jurisdictional,  "failure to state a claim" and the so-called "immunity" grounds invented by the courts, and such dismissals can be done

(1) in honest error; 

(2) to clear the district court's calendars of those pesky civil rights plaintiffs (an unconstituitional yet frequent ground for dismissal, even if the "calendar congestion" is not openly stated in the order of dismissal); and

(3) to protect the state governments with which district court judges sometimes are "inextricably intertwined", as demonstrated earlier on Judge Sharpe's example, also an unconstitutional ground for dismissal.

And you know what appears from the reading of the "expedited calendar rule", as well as the statutes and the local rule referenced in it, together with the warning that the "court" "disfavors" motions to "extend" time to file briefs

(including, apparently, motions to give civil rights appellants equal rights with, let's say, diversity appellants appealing from a jury verdict, where a possibility of early dismissal of a diversity case is astronomically lower than of a civil rights lawsuit),

and delegates to its clerks to dismiss such "disfavored" motions without judicial review.

That civil rights litigants, including pro se civil rights litigants, poor civil rights litigants, illiterate civil rights litigants - are considered by the 2nd Circuit court as TRASH.

And that the 2nd Circuit court considers it a ministerial duty of its clerks to - TAKE OUT THAT TRASH and deny hope of equal treatment to pro se civil rights litigants.

And, by the way, by the same "Local Rule 27.1" poor appellants (including pro se indigent and possibly illiterate appellants) are given less time to prepare their appeals BECAUSE they filed an appeal where they asked for money damages from defendants who are "immune".

Immunity is a judicially created doctrine not supported by the U.S. Constitution of the Civil Rights Act statute.

Some immunities, even as created by the federal courts in excess of authority given to them by Article III of the U.S. Cosntituion, are still deemed "affirmative defenses" that are waived if not raised in the answer.

Civil rights lawsuits filed by of "in forma pauperis" (poor) plaintiffs are often dismissed BEFORE THEY ARE SERVED, by the district courts sua sponte.  In fact, I have seen such dismissals made before the court served the IFP (in forma pauperis) complaints (which is the duty of the court clerk to do) and while the same court has just sent to the poor and illiterate or unsophisticated pro se party "a pro se package", a brick-thick pile of papers about the pro se poor litigant's "rights", including information as to where they can find a counsel.

It is a ridicule and an insult against the poor litigants, especially the poor pro se litigants - to dangle something in front of them with one hand while immediately yanking it with another.


I already wrote how the federal statute mentioned in the "expedited appellate calendar" rule, 28 USC 1915, is used by federal courts to block access specifically of poor pro se civil rights litigants to courts, both at the trial level and on appeal.

The "expedited calendar rule" for such dismissals aggravates this discrimination.


By dismissing a complaint on the basis of immunity which is an affirmative defense, the district court acts as an ADVOCATE FOR THE DEFENDANT GOVERNMENT, because for purposes of such a dismissal the court must necessarily raise the affirmative defense and grant it - to itself, as an advocate for the defendants who did not yet appear in the action.

A court cannot act as an advocate for a party, it is judicial misconduct.

In federal courts this judicial misconduct is elevated to law.

And it means that the appellate court, 2nd Circuit, further victimizes civil rights litigants who:

  1. filed the civil rights lawsuit because their constitutional rights were violated in the first place;
  2. were further victimized by the district court, and that's why they seek an appeal;
  3. and are further victimized by the 2nd Circuit - before their appeal is even heard.


So, civil rights litigants and appellants can discern from the treatment by federal courts that, instead of the declared

NOBODY IS BELOW OR ABOVE THE LAW

they are

TRASH TO BE TAKEN OUT BY NON-JUDICIAL EMPLOYEES

and that is before they even filed their appeals.

That's quite an encouragement for civil rights litigation.

And the U.S. Congress enacted 42 U.S.C. 1988 specifically to encourage civil rights litigation, so upholding the letter and spirit of the federal law is and was in every oath of every federal judge, including each and every judge of the 2nd Circuit.

Yet, instead of honoring their oath of office, they are

TREATING CIVIL RIGHTS LITIGANTS LIKE TRASH.

And it is for you, ladies and gentlemen, to allow or not allow this travesty of justice to proceed.

You and only you, the People, have a right to change this "status quo". 

Demand your representative in the U.S. Legislature to legislatively address these constitutional violations by federal courts from your legal representatives in the U.S. Legislature.

Until and unless you do that, federal courts will continue "facilitating" review of appeals by restricting appellant's rights with a view to dismiss appeals raising sensitive issues against the government.

Until and unless you do that, federal courts will continue to regard civil rights litigants daring to sue the government for violating your constitutional rights

AS TRASH.



















Attorneys are more savvy to file electronically than pro se parties? Why does the U.S. Court of Appeals for the 2nd Circuit discriminate against pro se parties by not allowing them to file electronically as a matter of right.

I have written in my blog about the so-called "unpublished" appellate opinions as a way to sweep issues raised in federal civil rights litigation under the rug and discriminate against civil rights plaintiffs.


In this post I want to raise a no less important issue - how the U.S. Court of Appeals for the 2nd Circuit discriminates against pro se appellants by denying them an option to file appellant's briefs electronically, an option allowed to appellants represented by counsel.


I have witnessed how my husband applied, in vain, for permission of the 2nd Circuit to file electronically.  His requests were simply ignored, and he had to comply with the 2nd Circuit deadlines by mail - while the 2nd Circuit clerk's office routinely lags behind between receiving mail and filing it by about 2 weeks based on my personal experience, and while the 2nd Circuit lost my husband's mail which resulted in a dismissal of his appeal for "default", as described here.


I do not have statistics of this office, but I am sure that if my husband, as a pro se civil rights appellant, was treated this way, any other number of pro se civil rights plaintiffs who cannot advocate for themselves in public forums, could also be treated the same way by the same office.


There are distinct advantages created, deliberately or without thinking, by federal appellate courts for parties represented by counsel by disallowing to pro se parties electronic filing as a matter of right while allowing such filing to attorneys (and even requiring it from attorneys).


Appellants represented by counsel are in a better position because their counsel simply file electronically, which:


(1) saves the expense of printing;


(2) saves the expense of mailing or travel to the clerk's office especially that, with the mess in the clerk's office where the office routinely claims it did not receive correspondence sent to it even by certified mail and causes dismissals of appeals through its own negligence, it becomes a must to send correspondence to the clerk's office by certified mail, an extra expense to pro se parties;  yet, even certified mail does not guarantee delivery by a certain deadline, so the safest way to submit appellate briefs to the Clerk's office for pro se parties (short of traveling to the office and making sure that your papers are filed under your watch, with a time stamped copy given to you) is to send the briefs by overnight mail - only this type of mail guarantees delivery by a certain date;


(3) adds time to work on the brief for the counseled party as compared to a pro se party submitting the brief not by electronic means (where the rule requires that the court receives the filing on the deadline, not that the filing must be mailed on the deadline, and mailing takes time); and


My husband, on his pro se appeals, sent applications to the U.S. Court of Appeals (same as to the U.S. District Court for the Northern District of New York) to apply electronically.  All of them were not even denied - ignored.


Thus, he was forced to comply with deadlines by submissions through regular mail, and do it not even by certified - by overnight mail, because only that type of mail guarantees delivery on a certain date. 


I fail to understand why attorneys practicing in the U.S. Court of Appeals for the 2nd Circuit are required to file electronically - and, thus, are saved the expense and hassle described above, associated with "regular" filing by mail, as well as given extra time to work on their briefs, while pro se parties who are presumably less knowledgeable in the law and need more time to research their briefs, are actually given less time to do that?


It may be a sheer lack of thinking, but that lack of thinking, nevertheless, discriminates against pro se parties big time and takes away from them opportunities for access to courts, in violation of both the Equal Protection Clause of the 14th Amendment and the Petitions Clause of the 1st Amendment, not to mention the Due Process Clause of the 14th Amendment.


There is no rational, legal or constitutional basis for such discrimination, for counsel to be "required" (or, rather, given an indisputable right) to file electronically, while pro se appellants must necessarily apply for permission to file electronically at the court's discretion, and the court, in its discretion, ignores such requests from pro se parties.


It is laughable to claim that in our day and age where everybody is posting on social networks through their phones and where there have been raised generations of Americans who were taught in school how to use computers and the Internet, attorneys are somehow more savvy than pro se parties in electronic filing.


First of all, attorneys are not taught in law schools how to use the electronic filing system, and bar examinations do not include testing of that skill.


Second, applicants to law schools are predominantly coming from humanitarian majors and cannot be presumed to be more knowledgeable than the rest of the population, including pro se parties with technical and computer-related background.


It is common knowledge that attorneys, if anything, are more technologically challenged than the rest of the population because:


(1) they are predominantly not trained in technology in their pre-law school majors;
(2) they are not trained in technology in law schools;
(3) they do not need technology in their everyday lives;
(4) they have secretaries who do routine technical work for them.


I personally talked to some attorneys who had to "learn" the electronic filing system through going to "classes" and paying to a "consultant" to teach them - what? How to read the rules of electronic filing, follow them, scan documents or convert Word documents to a pdf?  Something that any middle-schooler can do without a problem?


If electronic filing from attorneys are required as a matter of convenience to the clerk, there is no reason why, for that same convenience, pro se parties may not file electronically as a matter of right.  Electronic scanners (wand scanners) are dropping in price, scanning programs are available for smartphones, one can convert a Word file into a pdf format online, for free or for a small fee, and think how much timber will be saved by not having to send tons of paper to the office of court clerks!


Does anybody in the judiciary think along those lines?


Apparently not, and that is a shame, because what results from this lack of thinking, is, as I stated above, blatant discrimination against pro se appellants, which is unacceptable, and especially because for the majority of civil rights plaintiffs/appellants a federal appellate court is the court of last resort.