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).


“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 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.







Tuesday, April 28, 2015

People can decide what kind of legal services they need - and from whom - for themselves


I write a lot on this blog about the monopoly of the American legal profession on representation in court.

The establishment of the American legal profession insists on preserving that monopoly even when over 80% of consumers cannot afford services of licensed attorneys.  

While I live in the U.S. for 16 years, I was born and raised in Russia, and I follow events in my native country, including developing trends in its legal profession.  And what I see there is, unfortunately, attempting to borrow from the U.S. what the U.S. needs to shed, after several decades of a botched experiment - regulation of the legal profession and monopoly for provision of legal services and court representation.

In Russia, anybody can represent anybody else in civil court, even though representation by an attorney is required in criminal cases.  Yet, in Russia there is no attorney licensing, there is only an educational requirement, as far as I know.

While Russian Ministry of Justice announced at the end of March that it is going to introduce, as a point of "innovation", some requirements to the standards of various legal services provided, Russian lawyers give mixed signals as to what they want and why they want it.

On the one hand, the Russian legal community is clearly interested in establishing monopoly for legal services, and, as in the U.S., is claiming that the reason for establishing it is in order to help the consumers obtain only competent legal services.

At the same time, the Russian legal profession pays the lip service to the fact that, with 15 mln civil cases pending in court and only 75,000 lawyers in the country of over 146 mln people, it will be an injustice to the people to deprive them of any representation in court that they want by people that they have chosen and trust, even if they are not trained attorneys, when the trained attorneys do not have the physical ability to handle all the cases.

Of course, consumers of legal services in the U.S., where monopoly for both court representation and for any legal services at all, including real estate transactions, certifications of copies of documents drafting of wills, deeds and contracts are allowed to be done only by licensed attorneys, know that such monopoly makes legal services unaffordable and more scarse, but does not provide better services.

While in the U.S. there is no shortage of attorneys, the problem still remains that the legal education is so expensive that attorneys use their monopoly to fix their legal fees at a high rate to justify their legal education.  I have seen many statements by attorneys with claims to their bar associations not doing enough to protect attorneys from people who are practicing law without a license and thus taking their legal fees and precluding them from justifying their expensive legal education.  I have read opposition to deregulation of the legal profession and abolishing attorney licensing, on the same grounds, that the expensive legal education will then be in vain and the investment will not be recouped.  

Attorneys who make such claims completely forget that attorney licensing is in place for the declared purpose not to protect attorneys' investment into the expensive legal education by restricting entry into the market of new providers and thus allow the remaining providers to keep high (and inflated) prices which the providers agree will be dropped if the market is deregulated.  

Attorney licensing is declared to be in place to actually protect the rights of consumers to a competent representation.  That is declared by the American attorneys (when they do not snap against advocates for deregulation and reveal their true feelings and thoughts on the subject, protecting their own high fees and investment into expensive education).  That is now also declared by the establishment of the legal profession in Russia.

Yet, of course, such declarations are smoke screens designed to camouflage private interests of service providers who are hurting because of shrinking client base and want to eliminate competing providers of legal services.

It appears that Russia is moving several decades behind the global trends which are towards deregulation of the legal profession.

The U.K. started the deregulation in 2003.

In the U.S., the State of Arizona has been lax in prosecuting unauthorized practice of law, the State of New York itself has introduced in 2012 a requirement to law student to provide 50 hours of pro bono services as a pre-requisite of licensing, half-measures that show that the number of attorneys existing at this time, and at the prices they fix for their services, is unable to meet the demand of the market for affordable legal services.

In 2014, New York State also introduced the so-called "court navigators" to "help" indigent consumers "navigate" the legal system - while not providing legal services.

Those measures are, of course, half-measures that will be just a drop in the bucket and will not relieve the "justice gap" acknowledged by New York Chief Judge Lippman - even though the justice gap is created by regulation and the only thing that is needed to relieve that justice gap is to deregulate the legal profession, even if experimentally, for a certain period of time.

Various attacks on deregulation of the legal profession in the U.S. have already started.

A book advocating deregulation of the legal profession was published in 2011.

An individual without any legal education has recently challenged the requirement of the state that only individuals who graduated from an ABA-approved law school can sit for the bar examination.   
On February 25, 2015 the U.S. Supreme Court has made a decision in a case regarding regulation of dentists stripping dentists who regulate dentists of their immunity based on their anti-competitive activities, see my blogs commenting the decision before it was made, and after it was made.

Judging by the ardor with which bar associations, and not consumer groups, from different state attempted to prevent that decision, and I have read the concerted "friend of the court" brief of bar associations of several states, the establishment of the American legal profession sees the writing on the wall, that its days of monopoly are counted. 

From the point of anti-competitive activities, I recently won an interim court decision for a client in a civil rights case where the court ruled that my client can proceed with a civil rights case for actions of a disciplinary committee continuing to investigate and prosecute him long after they took his license.

I also recently asked the Federal Trade Commission to apply their recent victory in the U.S. Supreme Court the dentists' case to address attorney regulation in the State of New York for what it is - regulating of market by influential market providers for their personal gain of influential market providers, in violation of consumer's rights and federal anti-trust laws.

It is clear that the monopoly for legal services should die, and as quick a death as possible, to prevent further harm to the consumers.

I hope that the FTC starts the process of deregulation by applying the decision in the dentists' case to the legal profession.

I hope that the Russian legal establishment will not get their upper hand in claiming their monopoly.  No matter in which country and in which profession monopolies are imposed, they hurt the consumers in making services more scarce, less versatile, more costly and do nothing to ensure competence or quality of those services.

And, such monopolies take consumers for idiots and do not allow them their own free choice of who to choose as a provider of services, with their own verification of the person's abilities to provide those services and their trustworthiness.

Competent people who raise children, keep jobs, pay taxes and vote do not need such a paternalistic approach, they can decide for themselves what services from what providers they need.








Monday, April 27, 2015

A correction - Stephen R. Sirkin amended the New York State Constitution, and CPLR 5524(a), and 22 NYCRR 1000.17(a), and will amend more if given the chance


In my earlier blog, I indicated that the referee in my disciplinary case, the retired Wayne County judge Stephen R. Sirkin, has amended the New York State Constitution by "deciding" (I put it in quotes because it was unlawful, but Sirkin named his Decision without any quotes), again, by "deciding" a motion on liability in my disciplinary case instead of the required 4 appellate justices for quorum and 3 appellate justices for concurrence.

Of course, Sirkin was not authorized by law, New York State Constitution or court order of appointment to decide any motions, but such trifles as restrictions of the law never deterred judges, retired judges, referees and hearing officers covered by absolute judicial immunity for malicious and corrupt acts during performance of their judicial or quasi-judicial duties.

Really, will you be deterred from doing anything if you know that nobody can do anything to you or against you if you do what you are not supposed to, but what you still can do with impunity?

But once again, my previous story on this blog was that Sirkin has amended the New York State Constitution.

I was wrong.

Sirkin has amended actually a lot more than New York State Constiution, Article VI paragraph 4 subsection b.  He also amended CPLR 5524(a) and 22 NYCRR 1000.17(a).  The more the merrier, I guess.  From my personal impression of Sirkin, he is so old and frail and has such memory, perception and concentration problems that he would readily rubber stamp anything that is put in front of him, as long as it is put in front of him by a member of the government.

Yet, back to Sirkin's amendments.

This is the rule of the New York State Appellate Division 4th Judicial Department about entries of decisions made BY THE COURT on motions (not by retired county judges appointed as referees to hear and report facts in evidentiary hearings).


Well, at least the 4th Department recognized in the rule quoted above that it is "this Court" (and not Sirkin and referees like him) that must determine motions in "this Court" and not anybody else.

On that point, "this Court" is in agreement with the New York State Constitution, Article VI, paragraph 4 subsection b that provides:

                    "...In each appellate division, four justices shall          
                    constitute a quorum, and the concurrence of three 
                    shall be necessary to a decision... "

Yet, "this Court" has loosened the constitutional requirement by delegating the non-delegable duty to make appellate court decisions, whether on appeals or on motions, to the clerk of the court.  Of course, the rule "only" says that the court orders the clerk to "draft" "this Court"'s decisions.

Yet, you know, ladies and gentlemen, as well as I do, that where the clerk of the court - who was never elected as an appellate judge - is given permission by the court to "draft" decisions, the clerk simply makes them, signs them, and judges who are located in their own chambers far away from where the clerk is located, can do whatever they are doing there while they have delegated all that they are supposed to do to their non-judicial personnel.

Judges of the Appellate Division 4th Judicial Department are simply too busy to be bothered to do their job, as it appears from the decisions that the clerk of "this Court" has drafted, or, rather, crafted, in my case - decisions providing no explanation, no legal authorities and punishing me for requesting an explanation  for the court's decisions on issues pertaining to my ability to earn a living for myself and for my family and minor child, in accordance with constitutional guarantees of due process of law.

Of course, the word combination "due process of law" has become nowadays a swear-word in the courtroom inviting sanctions for frivolous conduct from judges who took the bench by swearing to uphold the due process of law, so no surprises there.

But let's go back to Rule 22 NYCRR 1000.17(a).

The rule actually relied on New York CPLR (Civil Practice Law and Rules) Section 5524(a) which says absolutely nothing about the right of retired county judges to craft, draft or make decisions for and instead of appellate judges.




So, by crafting, drafting and making such a decision on an appellate motion that was never made in front of him, Sirkin not only amended the New York State Constitution in how decisions are made in the Appellate Division 4th Department, but also amended CPLR 5524(a) requiring the Clerk of the court to enter the decisions of the appellate division on motions and appeals, and amended the requirements of the Appellate Division, 22 NYCRR 1000.17(a) that the clerk of the court should actually draft such decisions.

Halleluja, when people bend over one another trying to outdo each other in violating my rights and please somebody up above who wants my license taken, by law or by ... claw?, sometimes they get confused as to who and how should violate my rights better, faster and more effectively.  

Hey, guys (and gals, no gender discrimination here) who have being clawing me for 6 years and are preparing to claw me more! The end of the line of those who want my blood drawn is right there, disappearing around the corner.  Hope you do not collapse waiting in line.  Or rather, I hope you will.


In a Nebraska federal court, "generally speaking", all federal defendants are guilty before evidence is in - a judge says


In one more astounding blog post, a senior district court judge and a former Chief Judge of the Nebraska District Court, Judge Richard Kopf, makes the following revelation:

===
Quote

 Generally speaking, federal defendants are in a weak negotiation position not because of some flaw in the discovery or plea-taking process in federal court but rather because they are plainly guilty.

*This does not mean, of course, that we judges should not enforce Rule 16 aggressively or refuse to call upon prosecutors to adopt an “open file” approach to discovery. Nor does it mean that ourRule 11 plea taking procedures should be lax or performed in a rote manner. Furthermore, we may well want to assure ourselves before trial that the defendant has been fully advised of all plea offers and has knowingly and intelligently rejected them. See, here, for my standing order on that subject in light of Missouri v. Frye.

Unquote
======

The footnote does not pretend to give even a lip service to the principle of the presumption of innocence until PROVEN guilty.

Judge Kopf decides that all criminal defendants coming in front of him - including in death penalty cases - are guilty when they are CHARGED.

This blog, in my opinion as a defense attorney, is enough to have Judge Kopf taken off all criminal cases and to make motions to vacate all of the judge's decisions on motions and all convictions in criminal cases where Judge Kopf has ever presided.


This is the judge who does not want to be "a nanny" to criminal defendants and watch out against wrongful criminal convictions through coerced plea bargains of defendants who are innocent.

This is the judge who finds criminal defendants (including, obviously, criminal defendants in death penalty cases) competent to stand trial if they are not "lamppost climbing crazy" (which is not the same as "crazy as a loon"), because of the judge's prior experience in "serving" on a mental health board.

This is the judge who actually RULES whether a criminal defendant is or is not competent to stand trial - and rules that he is competent even when, by judge's own insulting definition, the criminal defendant is "crazy as a loon".

I always thought that insulting the mentally ill is not only illegal but is simply not done by civilized people.  Some members of the judiciary, covered by absolute judicial immunity for their acts on the bench, do not think that way and have the audacity to spill their noxious approach to mentally ill into the public domain.

Of course, a judge who would find not one, not two, but three reasons why he would execute an innocent person, and who believes that all federal criminal defendants are guilty before evidence is in, would not care whether a mentally ill would be convicted - or even executed.

But that is not a moral or legal norm in this country.

This judge is simply a menace to society and should be taken off the bench immediately.

Enough of judicial incompetence and insolence harming people.

The dead appearance of impropriety - the Kansas way


In one of my previous blog posts today I described the so-called "appearance of impropriety standard" as applied to judges and how judges eliminate that standard, without abolishing it, simply by applying "rules of discretion".

Kansas went further than that, eliminating the "appearance of impropriety standard" as applying to lawyer disqualification.

Example - a prosecutor represented you before, and now is prosecuting you in a criminal case.  Of course, the prosecutor knows a lot of privy information about you that he can use against you in the criminal case (whether he openly does it or not).  

At least, his or her prosecutorial discretion to 

(1) bring the charges,  
(2) maintain the charges and 
(3) offer you certain plea bargains or not, as well as 
(4) request certain pre-trial arrest, custody and bail options, and 
(5) request certain post-conviction punishment/sentencing options - 
all of that will be informed by privileged information obtained through prior representation, while you will never be able to prove it without relying on the "appearance of impropriety" standard, for the obvious reason that you cannot X-ray the prosecutor's mental activities.

Yet, now the "appearance of impropriety" standard for attorney, established in many states by ABA rules of professional conduct as well as by state case law and federal constitutional law, the standard which, in the case of a criminal prosecutor or an attorney working for the government becomes a federal due process standard protected by the federal pre-emption doctrine, is now dead in Kansas.

The Kansas Supreme Court simply abolished it, scrapping 18 years of precedent, and I wonder why.

The reason why is, very likely that the Kansas Supreme Court, consisting of judges who are not serving for life and will at some point re-enter the legal profession, and whose relatives or friends may be attorneys, ruled in favor of the legal profession that finds it increasingly difficult to stay afloat because of shrinking base of clients who can afford to pay high fees dictated by attorney marketing which operates not as consumer protection measure, but as a market restrictions by lawyers for (politically connected) lawyers.

That appears to be the only reason why a perfectly good 18-year precedent was scrapped and why lawyers are allowed a wider latitude to represent clients with potentially conflicting interests.  Otherwise the poor lawyers will starve and will not be able to hire judges at the end of their judicial careers.

And that, ladies and gentlemen, is an appearance of impropriety that nothing can abolish.  It stinks.

The ultimate solution for the mushrooming caseloads by cranky judges - just toss the cases and punish the victims of governmental misconduct

In 2004 federal courts made an announcement that federal courts are suffering severe budget cuts, and that may affect the length of time when issues are resolved in such federal courts, as well as will put a larger load on senior-status judges (whose legitimacy is questionable and was challenged by many legal scholars), see here and here.

Since 2004, funding of federal courts did not become better while population and caseloads continued to grow.

So, what kind of solution did federal courts, courts of limited jurisdiction where the only cases heard are cases between citizens of different states (diversity) and federal civil rights cases, invented to deal with the "mushrooming caseloads"?

A very easy solution:

(1) aggressively apply court-invented and unconstitutional "deferences", "abstentions" and "immunities" to dismiss as many civil rights cases as possible without allowing discovery to begin;

(2) sanction for "frivolous conduct" as many litigants and especially civil rights attorneys as possible, so that litigants and civil rights attorneys will be afraid to touch civil rights cases, for fear of having to pay thousands of dollars in legal fees to perpetrators of constitutional violations absolved by the courts from liability based on court-invented "deferences", "abstentions" and "immunities", unconstitutional judicial amendments to the Civil Rights Act enacted by the U.S. Congress;

(3) invent "court rules", such as costly and unnecessary "mandatory mediation" and "page limit" rules which drain litigants' scarce financial resources and force litigants and their counsel to reduce issues they want to raise to the bare minimum, which allows the courts to dismiss cases and claim that issues are not properly and fully presented and pled;

(4) stream appeals of civil rights litigants for a "speedy track", assign them to 70 to 80-year old senior-status judges who do not read the appeals, but instead rubber-stamp them "affirmed" by "summary orders", thus denying civil rights appellants equal protection of laws with other appellants, and denying civil rights appellants their right for a full appellate review and instead providing them a certiorari review, in contravention of appellate federal statutes.

In other words, to deal with budgetary problems and the limited number of judges who cannot physically handle the 600 to 800+ caseloads per judge, the only solution the courts invent is to continue to violate constitutional rights of civil rights litigants (for access to court, due process of law and impartial judicial review), the very same litigants whose constitutional rights have been already violated, that's why they are suing in the first place.

To break the law to fit into the budget is an answer of federal courts who are put in place to redress constitutional violations.

At the very same time, one thing I do not see reduced, despite budget cuts, is salaries of judges.  Those appear to be only growing, and, with judges "assuming senior status" and new judges appointed, the budget is only mushrooming more.

So, the corps of judges continues to grow and continues to be paid ridiculous salaries to do what - toss cases on invented and unconstitutional basis to address budgetary cuts?

A book was published back in 1999, "The Federal Courts: Challenge and Reform" by judge Richard A. Posner, where the author squarely spotted the growing trend of sanctioning civil rights plaintiffs and tied it to the necessity to get rid of the growing caseloads.

So, the more the government grows, the more immunities it is given by courts, the more it violates people's constitutional rights.

The more the government violates people's constitutional rights, the more people sue.

The more people sue, the more the caseloads become on federal and state courts.

The more the caseloads become, while budgets of courts are cut, the more frustrated judges become since they are stressed by growing caseloads (without any fault of the litigants).

The more frustrated judges become - the more they sanction the victims of governmental misconduct, to punish them into silence.

And that trend, since 1999, got only worse.  At this time, and this is my own experience as an attorney, courts stretch immunities, especially the absolute judicial immunity for malicious and corrupt acts, even where it was never declared (initially) to be - to judges' actions off the bench affecting their impartiality in litigation, and aggressively sanction litigants and their counsel simply for asking courts to help them redress violations of their constitutional rights. 

While federal courts admitted that they are "losing fight to manage workload", attempts were made at the same time by the same courts, and continue into the present time, to win that time at the expense of the very people whose rights federal courts were created to protect.

In other words, cranky judges retaliate against victims of constitutional violations by members of the government because constitutional violations of the government become too numerous for the cranky judges to handle.  There is no logic, or law underlying such attitude and judicial decisions driven by such attitude - but the trend in federal and state courts of sanctioning civil rights plaintiffs and their attorneys into silence continues with a vengeance.

With such an approach by courts - what kind of respect can courts expect from the public?

The elusive appearance of impropriety


Judges of both state and federal courts must step down from cases where they are presiding where there is even an "appearance of impropriety".

That is because the U.S. Supreme Court has ruled that, as a matter of federal due process of law, not only justice must be done in court cases, but appearance of justice must be done, too, to satisfy the public in the integrity of the court proceedings.

Yet, while the rule is declared that even "appearance of impropriety" is enough for the judge to step down, courts also introduced a mirror rule cancelling the constitutional requirement to judges to step down because of "appearance of impropriety" to ensure due process through both justice and appearance of justice in court proceedings.

The mirror rule is "discretion".  "Discretion", as interpreted and applied by most courts in the United States, both state and federal courts, is absolute and unrestricted power of a judge to do what he wants.

Judges of state and federal courts also have "discretion" (absolute power) to impose sanctions upon litigants and their attorneys for "frivolous conduct", which is defined so vaguely and applied so selectively against the "mere mortal" parties and attorneys and privileged and politically connected parties and attorneys that it appears to be a tool targeted for retaliation of certain individuals for voicing certain political opinions rather than a rule established as part of the "rule of law".

So, on the one side we have "appearance of impropriety", constitutional rights of litigants to impartial judicial review, due process, justice and appearance of justice, and, on the other hand, all of the is swept away by the rules of "discretion", "discretion" not to step down, "discretion" to impose sanctions for motions for recuse, "discretion" for raising constitutional arguments and any other arguments that the judge simply does not like, whether they are legitimate and lawful or not.

Appellate courts routinely rule that failure to recuse and imposition of sanctions for making motions to recuse is not "abuse of discretion".  Appellate courts also routinely rule that failure to make a motion to recuse (even for fear of these "discretionary" sanctions) is a waiver of a right to raise issues of judicial bias.

The "discretion" not to recuse and to sanction for motions to recuse is given by the courts to themselves because courts presume upon themselves integrity - even while giving themselves absolute judicial immunity for malicious and corrupt acts on the bench.  

Of course, to a reasonable person all of that is nonsense and corruption, but try saying that in the court pleadings - you will be sanctioned thousands of dollars and, if you are an attorney, you may end up without your law license, since in America the very same government misconduct of which lawyers are supposed to challenge on behalf of their clients is regulating the lawyers' licenses and livelihoods.

Such control by the government of independence of court representatives has been pronounced a human rights violation and undemocratic in such parts of the world as Iran, but remains in full force in the United States of America.

Because of the "rules of discretion", the rule requiring that judges step down from cases because of "appearance of impropriety" is interpreted so broadly that nothing at all, no glaring conflict of interest, can be or is considered improper for a judge to preside over a case.

Cases interpreting "appearance of impropriety" are read like a combination of George Orwell's "1984" and the Diagnostic Manual of Mental Health Disorders.  In other words, they are simply crazy for a normal person to read.  What a reasonable person clearly would see as an appearance of impropriety, judges, after no less than "consulting their own conscience", consider proper - and consider it proper to punish the challenger who raised the issue of impropriety in the first place, and appellate courts do not see anything wrong in that, and affirm, cutting off any possibility for people for further effective legal remedies for the clear wrongs dealt to them by the government, through a member of its judicial branch.

What I suggest is that rules allowing judges' "discretion" to recuse or not to recuse, or to punish for anything at all, including motions to recuse, should be legislatively abolished, judges should be legislatively prohibited to impose sanctions for making motions to recuse, and judicial immunity (illegal and unconstitutional that it is) should be at the very least legislatively stripped from the judges for imposing sanctions when a motion to recuse is made, allowing victims of such sanctions to sue the judge for that particular retaliation.

That would be at least the first good step forward to prevent chilling litigants from raising legitimate issues in litigation and protecting their legitimate rights.

What is in common between the State of Nebraska and Tatiana Neroni, or kings of the bench begging to be dethroned


It appears that the common denominator is that both the State of Nebraska and Tatiana Neroni were punished by judges for investigating the judge's backgrounds while appearing before those judges in litigation.

On August 26, 2015 a senior-status federal judge Richard George Kopf of the U.S. District Court of Nebraska, who describes  himself in his blog as "Judge, U.S. District Court, District of Nebraska
Nominated by George H.W. Bush on April 7, 1992, to a seat vacated by Warren K. Urbom. Confirmed by the Senate on May 21, 1992, and received commission on May 26, 1992. Served as chief judge, 1999-2004. Assumed senior status on December 1, 2011".

It is not clear why Judge Kopf who assumed his senior status only in 2011, lost his chief judgeship in in 2005, but I suspect that it may have happened because of his "wildly unpopular decision" in 2002, after 4 years of litigation (I checked on Pacer.gov) where the judge retaliated against a whole state forcing it to accept nuclear waste because a reporter from the state dared to make a legal request for the judge's financial disclosure reports from the court administration.  Usually chief judges, once appointed, continue until the end of days.

Yet, only in 2015 Judge Kopf decided to announce to the public, through his blog, the circumstances of how he awarded against the State of Nebraska a 151 million dollar judgment.

In a blog that Judge Kopf named "Ralph Waldo Emerson: When you strike at a king you must kill him" the judge gives insights as to what may have lead him to make that "wildly unpopular" decision.  The judge even provides a citation to the decision, which I will reproduce here - Entergy Arkansas Nebraska v. Nebraska, 226 F.Supp.2d 1047 (D. Neb. 2002), aff’d 358 F.3d 528 (2004).

This is what happened during litigation in the case cited by Judge Kopf, in Judge Kopf's own words:

                        


Since Judge Kopf is still obviously reeling in 2015 from the fact that in 2004 or earlier "some one /sic/ closely related to Nebraska" dared to ask for the judge's financial disclosure reports (pursuant to a legal right established by statute, Freedom of Information Act), and the judge expressed his displeasure in a blog quoting, as a headline, a phrase "When you strike at a king you must kill him", it is obvious that there is an appearance that Judge Kopf may have awarded his "wildly unpopular" decision against the State of Nebraska in retaliation for the reporter asking Judge Kopf's financial disclosure reports.

Look how Judge Kopf assesses an attempt to even obtain financial disclosure reports about a judge or investigate the background of the judge or the judge's relatives, which is a matter of public concern and is not illegal:




And look what triggered the judge's "old wound" to write about the 10-year-old case:



The judge who was obviously irate because somebody dared to request his financial disclosures - even though he pretends to be neutral and magnanimous and claims that he kept that same report at his clerk's office and allowed it to be disclosed without reporting to the judge who asked for it (right!) - has the audacity not to step off the case because he became irate when he learnt that the reporter from the "organ of the state government" requested the judge's financial disclosure reports, but to "give advice" to litigants:

(1) that if the litigants "strike against the king" they "must kill him" - meaning that Judge Kopf 
     (a) considers himself the king, 
     (b) issues a direct threat to the litigants, that if litigants "strike, but do not kill" "the king", they will be - what? - killed themselves, as Judge Kopf did in the nuclear waste dump case?
     (c) perceived a simple - and perfectly legal - request for information about him which was not part of litigation as a personal attempt to strike against him, which perception would clearly have required his recusal from the case, 
      (d) since the perceived "strike" was not successful, the judge perceived what he thought was an attempt at a strike (requesting the judge's financial disclosure reports) as "slimy and ham-handed", and

as an obvious resulting retaliation from "the king", the judge slammed the State of Nebraska with a 151 million dollar lawsuit.  I wonder what happened after that with the reporter.


I do not know why the State of Nebraska did not (1) require a jury trial and allowed Judge Kopf to proceed to a bench trial where he made his own "findings of fact" against the State of Nebraska, nor did the State of Neraska (2) move to recuse the judge immediately after he notified the litigants that he is aware that a reporter from the Nebraska public television asked for his financial disclosure, because it was completely unrelated to litigation.  I checked the case out on Pacer.gov, a motion to recuse or demand for a jury trial were not made, which, in my opinion, was a disservice to Nebraska taxpayers.


I do not know whether the State of Nebraska will dare to challenge the judgment now, after 10 years, based on the judge's yesterday's blog, but I did report what judge Kopf said on Facebook, with a link to the judge's blog, and tagged the Nebraska Attorney General to read the post.

And I am sure that the judge will not be disciplined for his behavior because the policy of federal courts is not to even accept complaints about judge's behavior during litigation (while at the same time giving judges absolute immunity for malicious and corrupt acts committed during litigation).

And, I am sure that federal prosecutors who regularly appear in front of that judge and that court, will not dare to touch him with a criminal investigation either.  That's why the judge feels safe to expound himself in the blog.

Yet, I do intend to inform through this blog post taxpayers of the State of Nebraska who may want to apply pressure to their State Attorney General to move to vacate the judgment that was paid out of their collective pockets.

As compared to Judge Kopf monumental retaliation against the people of the entire state for something legal that a TV reporter of that state did (and which is presumed by law to be done in public interest), my case involving retaliation for the very same act appears to be small.

In 2011 Delaware County Family Court judge Carl F. Becker (the anti-hero of my most popular blog post) punished me, my client (and, apparently, her child since Judge Becker denied my client perfectly legal and meritorious request to restore her custody of a minor child) for filing a Freedom of Information Request with the New York Court administration , same as in Judge Kopf's case, for the financial disclosure reports that judges in New York must file semi-annually with the court administration.

Judge Becker was so irate that he issued against both me and my client a sua sponte Order to Show cause demanding me to answer why I and my client should not be punished for frivolous conduct.

In that Order to Show Cause he mentioned that he considers it inappropriate when an attorney "investigates a judge while frequently appearing in front of him".


When I pointed it out in opposition that New York law considers Freedom of Information Requests as presumed to be in the public interest, Judge Becker issued a decision where he:


(1) agreed with me on that point; but

(2) punished me and my client anyway by granting his own Order to Show Cause in its entirety, meaning to include the punishment for the FOIL investigation anyway.

Of course, the sanction was also issued 3 days after my client and I sued the judge, based on his actions ON and OFF the bench (what we learnt as a result of the necessary background investigation, because Judge Becker did not disclose his conflicts of interest).


Of course, both in state and in federal courts, lawsuits against Judge Becker were dismissed on "jurisdictional" grounds, because of absolute judicial immunity that is supposed to cover only acts ON the bench, but not OFF the bench.


Of course, in 2013 we discovered that Judge Becker failed to disclose a conflict of interest that arose before he even ascended to the bench in 2002, yet, the federal court rejected that claim.


Of course the judge assigned to Judge Becker's case in the state court, Judge Tormey, failed to disclose his own conflict of interest, that the New York State Attorney General representing Judge Becker was Judge Tormey's own judge in a federal case against Judge Tormey personally that lasted 4.5 years, for retaliation against an employee, and concluded just a month before Judge Tormey was assigned to Judge Becker's case with a $600 000.00 settlement that somehow New York taxpayers had to pay for Judge Tormey's misbehavior that had nothing to do with his judicial duties.


Of course, Judge Tormey also engaged in an ex parte communication with Judge Becker's attorney and, possibly, with Judge Becker himself since Judge Becker was on the 2nd floor of the Delaware County courthouse when the motion was argued, and, on conclusion of the argument, I and my client left the floor, as is required by policies in that courthouse, and Judge Becker's counsel remained on the floor for another 40 minutes.


Of course, evidence of which the New York State court administration refused to give to me claiming that video tapes of what occurred in the courthouse that day are unavailable because the videotaping equipment allegedly broke (while no documents pertaining to payment for repairs of the same equipment were provided to me on a separate FOIL request).


Once again, what my client suffered, what I suffered and continue to be suffering from Judge Becker's retaliation (because Judge Becker's retaliative sanctions imposed after we sued him and after we investigated him under Freedom of Information Law are currently used as the only grounds in a disciplinary proceedings against me) is not comparable with what people of the State of Nebraska have been suffering when Judge Kopf forced their state to pay 151 million dollars and accept nuclear waste from other states on their territory.


Yet, Judge Kopf's beliefs are the same as Judge Becker's - that it is inappropriate for anyone who is appearing before a judge to legitimately ask for copies of the judge's financial disclosures.  It is "a strike against the king", it is slimy and ham-handed, and, if the strike does not kill the king, the king will kill the striker.


And kings like that should be taken off the bench to prevent further abuse of power and harm to the very people such "kings" are supposed to be serving.





Sunday, April 26, 2015

Education is no help when there is no integrity


Recently I blogged about judges in upstate New York justice courts who do not have to have legal education or, in fact, any level of formal education.

I raised that issue as a denial of equal protection and due process of law to criminal defendants prosecuted in front of such judges, as compared to criminal defendants prosecuted in front of County Judges, where, to be elected, a judge has to be an attorney with 10 years of experience.

Yet, all such educational requirements for any public official or licensed professional presuppose one thing - integrity.

Without integrity, one can be super-educated, and yet commit atrociously unfair, unjust and unlawful acts.

Like my disciplinary prosecutor Mary Gasparini, of the Attorney Grievance Committee, Appellate Division 4th Judicial Department, 5th judicial district.

First of all, existence of attorney disciplinary committees is not supported by statute, and thus what Mary Gasparini is doing she may be doing completely without any authority - and I pointed that out recently to the United States Federal Trade Commission in a separate petition.

Yet, even without such a jurisdictional problem, people who are put in charge of protecting public safety while dealing with such fragile issues as people's livelihoods and reputations and investment of a lifetime into a profession, such people should be carefully chosen and must possess highest degree of competent in the applicable law and a highest degree of integrity.

And what must be included into the concept of integrity for a public prosecutor is - number one - ability to recognize, admit and correct mistakes, especially those mistakes that can do injustice and destroy livelihoods of the whole families.

And, competence may be considered part of integrity - if the public prosecutor simply does not know the record, does not know the applicable law, he or she must either research and learn both the facts and the applicable law BEFORE the prosecutor brings any charges, or not bring them at all.

Or, if obvious mistakes in the charges are pointed out to the prosecutor in the course of proceedings, civil or criminal, the prosecutor's ethical obligations, as well as constitutional obligations under the Due Process Clause of the 14th Amendment of the Federal Constitution upon which the prosecutor took an oath of office when he or she was elected (for criminal prosecutors) or appointed (for disciplinary prosecutors) to the job absolutely require him or her to correct the mistakes before the injustice is done.

What Mary Gasparini is doing in my case is the opposite.  In full knowledge of several grievous and obvious errors making charges impossible, fraudulent or unconstitutional, knowing full well that several significant procedural steps were skipped in my disciplinary proceedings so far, Mary Gasparini did not correct her mistakes at all, or, as to one charge that she withdrew after she was sued and after the referee made a "decision" covering several charges on the basis of that charge that was perched as the first and most important one.

On the very opposite, Mary Gasparini tried to make sure that my proceedings, fraud, skipped procedural steps and all, should be held in secret until the very end when there will be no opportunity to change anything, even though I waived my privacy several times, and my waiver is all that is needed under New York State law to open attorney disciplinary proceedings to the public. 

To ensure that no misconduct, her own or of the court who favors her at every turn and bulldozes toward a pre-judgment made months ago, judging by the court's conduct, be disclosed to the public, Mary Gaspraini had the audacity to try to intimidate me with now several filed criminal charges for "criminal contempt of court" - for exposing her own and the court's misconduct in such proceedings on this blog.

The most interesting part is that Mary Gasparini appears in these criminal charges as BOTH the only complaining witness, complaining about harm done to her personally, and a purported public prosecutor of the case - which stinks already, not that Mary Gasparini cares that what she is doing is absolutely illegal.

Mary Gasparini, apparently, does not care that criminal contempt of court has, as an element to be proven beyond the reasonable doubt, that the court order that I allegedly violated, must be lawful.  A statute, Judiciary law 4, a New York State Court of Appeals precedent on point, and several U.S. Supreme Court precedents clearly state that as soon as I waive my own privacy and confidentiality, my proceedings are open to the public.  The law gives me control of whether proceedings that can potentially take my law license be open to the public or not.

The court, without any explanation as to its reasoning, took that statutory and constitutional right away from me, which, based on applicable law, is not a "lawful order of the court" and cannot possibly be proven beyond the reasonable doubt, or even by preponderance of the evidence.

Yet, for Mary Gasparini, the law is not important.  The result is.  So, Gasparini is pushing to win her case, and the law be damned.  And she is doing that allegedly to protect the public from me, while all she is doing is depriving the public of the only attorney in a large rural area who is willing and capable to sue the government on behalf of people whose constitutional rights are violated.  That is a clear disservice to the public.

To conceal that Mary Gasparini is actually hurting the public under the guise of protecting it, Mary Gasparini insisted to the court that the very public she is allegedly seeking to protect should not be allowed into my court proceedings to observe the "protection process".

Moreover, Mary Gasparini aggressively asks the court, repeatedly, and despite knowledge that her arguments have no basis in the law or fact, that I should be criminally punished (by jail time and high fines no less) for making my own proceedings public, which the law allows me to do by a simple waiver of privacy, without any motions, and especially for exposing her misconduct and misconduct of other public officials involved in my disciplinary proceedings, to the point of fabricating of court transcripts, proven by audio recordings that do not match such court transcripts.

"Kill the messenger" is a very old principle of those in power.

Only when those in power kill the messenger of the inconvenient truth about themselves, and they make sure the public should not be able to be the witness of how the murder occurred, they lose their legitimacy and their right to claim that they are actually killing the messenger to protect the public from that messenger instead of protecting their own backside from the public's legitimate rage as a reaction to the message.

And that backside stinks.

Ready to ask for mercy? Not before you find me guilty...


Well, how about - nothing?

There are certain procedural steps to be observed in court, and observing such procedural steps is called constitutionally protected procedural due process of law.

That is something that many courts in the state of New York (and federal courts, too) are struggling to comprehend or accept.

In my disciplinary case, as explained in my letter to the court, the court skipped not one, not two, but SIX procedural steps in order to schedule a deadline for "mitigation" for me and require me to submit whatever I have "in mitigation" before the court ever make a decision that I committed misconduct and there is actually something to mitigate.

And my answer to the court - in full compliance with procedural due process - is: first go through the required procedural steps and only then you will have a right to ask that question.

My question is - if the court knows that it will not allow me to use any laws in my favor, if it knows that no procedural steps that I am constitutionally entitled to will be observed, if the court pre-judged my disciplinary proceedings long in advance, and if the court is determined, as shown by the record of my disciplinary proceedings, to create new laws and rules on the go for the benefit of the disciplinary committee (the creation of that same court), why even call it a court proceeding? 

It is a backyard bullying session and nothing else.