THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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 cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Friday, May 22, 2015

How to discipline an attorney when it is against the law


Today is Friday, May 22, 2015.

 A secret hearing in my disciplinary proceeding is scheduled for May 26, 2015, that is the next business day after today.

 Why secret?  Because I satisfied all conditions to open proceedings to the public that are required by law:
  1. waived my privacy in writing - mutliple times and for months and years; and
  2. asked the court to open proceedings to the public and the press,
yet, the court continually stalls my request, and as of today, as of two business days before the disciplinary hearing, the court still did not confirm what the law provides for - that the disciplinary proceedings must be open to the public if the attorney requested that and waived her privacy.

There is sad irony about all of this secrecy, because it is for my benefit that the secrecy exists (at least it is declared in the law this way), court proceedings are otherwise presumed to be open by statutory law in New York and are required to be open by the 1st Amendment of the U.S. Constitution, so that the public can verify the integrity of workings of our court system.

Yet, I do not need that questionable "benefit" of secrecy and waived it long time ago, in February of 2013 (over two years ago) when I removed the disciplinary petition against me to the federal court without requesting anonymity, which was my right at that time.

It is the court and the disciplinary prosecutor (disqualified by her role as a sole witness against me in the fabricated criminal proceedings that were dismissed before the initial hearing) who cling to non-existing secrecy of the proceedings as if it is their lifeblood, inventing additional rules that I must follow as to how to ask what should be granted to me, as a matter of mandatory precedent and statutory law, for the asking without any formalities or causes shown.

The court on Tuesday will have a formidable task as to what to do with me at that unlawfully secret hearing.

I asked to recuse the court for its record of not following the law and for its record of favoritism toward the disciplinary committee which is considered by federal courts "an arm of the Appellate Division".  Of course, when a prosecutor is "an arm of the judge", both prosecutor and the judge are disqualified due to a separation of power and lack of neutrality problem, but so far this court rejected this argument without analysis or explanation.

I asked to disqualify the prosecutor multiple times, because of prosecuting clearly fraudulent claims that I neglected two clients by not appearing at a deposition and not responding to a motion, causing a default in the case, when COURT RECORDS that the Petitioner did not have time or due diligence to review show that at the time of the aforesaid deposition and motion I was not even admitted to the bar.  The other fraudulent claims is that I disobeyed an order of the court by not paying sanctions that I paid immediately into the court escrow, 1.5 years before the petition was filed - but the Petitioners and their attorneys did not consider it necessary for themselves to check out the facts and do the due diligence required in this state of all attorneys, but the attorneys disciplining other attorneys (at least I do not see any courts sanctioning disciplinary prosecutors for misconduct that is rampant).

Now, it is a wonder for me how the court will overcome fatal flaws of how jurisdiction was obtained in the 4th Department, of incompleteness of the record upon which the court will make its determination, skipping multiple procedural steps, disqualification of the prosecutor and flaws in the motion for a summary judgment - that is still pending in the court, at least, I did not receive a certified copy of a decision of the court on that motion, as I asked recently, and the hearing that is scheduled for May 26, 2015 is to confirm a referee's report AND for mitigation - which means, a decision on liability has not been made, but, from scheduling mitigation and a court-set deadline for me to submit written requests for mitigation by May 8, 2015, it can be presumed that the issue of liability is already prejudged, and that the decision of the court on liability will be against me.

JURISDICTIONAL FLAWS

There are a couple of jurisdictional flaws that, had it been an impartial court, would have been insurmountable and would have prevented and precluded the court from ruling on my case:

1) first, jurisdiction was transferred through an ex parte order upon an ex parte application of the 3rd Department disciplinary committee, while the 3rd Department did not give the 4th Department the copy of that application or proof of service upon me, and refuses to give the same to me, and the 4th Department claimed to me that it never received that application;



2) transfer of jurisdiction occurred based on an "agreement" between the chief judge of the 3rd Department and the chief judge of the 4th Department who should have checked and verified that the transfer is being made upon an ex parte motion which was illegal;

3) a motion is pending in the 3rd Department to vacate the order of transfer due to its illegal ex parte nature, which is indisputable from the text of the "confidential order" that does not mention that the Petitioner's "application" was duly served upon me, or that I failed to respond - that is an admission by the court that the motion was ex parte, which is not allowed in New York (but for in cases where Frederick or Tatiana Neroni are involved);

4) an appellate court may not proceed on an incomplete record as a matter of jurisdiction, and the 4th Department never received (and I've never seen) the "application" upon which the order of transfer was granted.

I wonder how jurisdictional defects in the transfer and incompleteness of the record under review will be overcome by the court.

DISQUALIFICATION OF THE PROSECUTOR

As I mentioned above, Mary Gasparini has commenced a criminal proceeding (since dismissed) against me on January 28, 2015, where she is acting as a criminal prosecutor AND the sole witness in the proceedings.  On April 9, 2015 Mary Gasparini added more attempted criminal charges where she was, once again, a purported criminal prosecutor, the only witness and the alleged victim - a completely disqualifying set.

Mary Gasparini urged the referee to submit fraudulent altered transcripts, fraudulent referee's report written by Mary Gasparini and claiming that I already had the court-ordered evidentiary hearing that I was entitled to (something that Mary Gasparini acknowledged recently did not happen because it was allegedly moot because the referee did not want to do his job and hold that court-ordered hearing).  

Mary Gasparini attempted to bring criminal proceedings against me when she figured out her reputation may be at stake because it was shown on this blog just how incompetent and lacking in integrity Mary Gasparini is and what a sham "attorney disciplinary proceedings" in New York are, prosecuted by the likes of Mary Gasparini.

So far, the court proceeds with treating Mary Gasparini as if she is still legit in the case, which is yet another reason why I asked the court to recuse - and the court stubbornly refuses to do so.

MOTION FOR A SUMMARY JUDGMENT

Normally (I have to repeat this word in this case), the law requires that a motion for a summary judgment must be supported by competent evidence (non-hearsay, on properly authenticated business records or on affidavits of persons with personal knowledge of the events).

The 3rd Department committee (who withdrew with haste based on an ex parte motion to the court which they were "the arm of") made a motion for a summary judgment on the following charges:

1) That I did not appear at a deposition, did not oppose a motion and caused default for two clients - in 2008, when I was not admitted to the bar and when such appearance at a deposition or in a motion would have been a crime of unauthorized practice of law - a CRAZY and crazily fraudulent charge that 4 courts allowed to proceed for over 2 years.  '

Mary Gasparini claimed to the court that she cannot change a transferred petition by court rules, then withdrew that charge after I filed a lawsuit against her and after the referee "granted" that charge (suddenly, the court rules were not important for Mary Gasparini any more, but the lawsuit was), but now Mary Gasparini once again asks the court to grant the petition on all charges without exception.

Since it was a motion for a summary judgment made by the Petitioner, it was the Petitioner who was supposed to provide court records proving that I was an attorney of record in the case and that I did not appear at a deposition or did not oppose with a motion properly served on me.

Such records do not exist, so Petitioner did not provide them to the court.

Instead, I provided court records of the Delaware County Supreme Court to the disciplinary court showing that in the case Petitioner is talking about I was not an attorney of record at the time of the deposition and of the motion, and moreover, that I was not admitted to the bar at that time and could not possibly represent clients.  

Case law in the 3rd Department where the case originated shows that disciplinary committees do not have authority to even bring proceedings against an attorney for conduct before admission to the bar, and that is even when an attorney committed misconduct.  NOT committing a crime of practicing law without a license in 2008 cannot, for any sane individual, constitute a violation of any law, ethical or disciplinary rule - even if the lazy, incompetent and immoral attorneys on the disciplinary committeess and equally lazy, immoral and incompetent judges refuse to see contents of court records informing them of that fact.

2) Charge IV - that I allegedly did not pay the sanctions imposed upon me by now hastily departing the bench Judge Carl F.Becker after I sued him.

Sanctions were imposed upon me for CORRECTLY stating that Judge Becker did not have a certificate of election filed with the Delaware County Clerk after his alleged 2002 election - and anybody can come to the Delaware County courthouse in Delhi, NY and see that the only certificate of election that is filed there was filed in 2011, 9 years after the alleged election, and that certificate of election is PRESUMED false because the Delaware County Board of Election retains original ballots and petitions in elections for only 2 years after elections, and thus COULD NOT certify Judge Becker's elections 7 years after the evidence of that election was gone.

Judge Becker sanctioned me in one case for bringing a motion questioning HIS OWN legitimacy (a question that he, of course, was completely disqualified to resolve - if the law and principles of fairness and due process were to be followed).  Then, in another case where I brought a similar motion, Judge Becker arrived at a diametrically opposite decision, that my motion was not, after all, frivolous, but did not go back and did not correct his sanction that it was frivolous in that first case.

I brought in front of the court Judge Becker's de facto overruling of himself in my opposition to the summary judgment.  I wonder how the court is going to deal with that issue when the same issue where I was absolutely correct on the law and as a matter of documentary evidence, is ruled by the judge who was the subject of the challenge of his own legitimacy as both frivolous and not frivolous - and I am supposed to be sanctioned for it.

But, back to the sanctions, I actually did pay the sanctions into the escrow of the court when I filed appeals of sanctions (three of them, the sanctions for being correct imposed by a judge who committed misconduct after I sued him, amounted to over $5,000).  I asserted in my answer that I paid the sanctions and provided evidence that I did.

Petitioner disregarded that evidence and continued to claim that I did not pay the sanctions and should still be sanctioned.

I do not have a right of discovery in the disciplinary proceedings and had no right to obtain copies of the court escrow trust account showing that I paid the sanctions, but I did provide to the court a filing of affirmation that I filed showing that I paid the sanctions.  The Lawyers Client protection fund to whom the court escrow fund sent the monies, without ever returning them to me, has sent a letter to the Petitioner.  The Petitioner submitted the letter to the court and acknowledged that the moneys were paid into the court escrow and transferred to the Lawyer's Fund.

I have no control over WHEN and HOW the COURT transfers monies out of its trust account, and cannot be disciplined for that.  Yet, that is exactly what Petitioner seeks.

Remember - this is a motion for a summary judgment, the burden is on the Petitioner to prove that I did not pay the sanctions (which I paid 1.5 years before the petition was filed, right after they were imposed), and Petitioner acknowledged that I did pay the sanctions, before the petition was brought - but Petitioner still proceeds requesting the court to discipline me for not obeying the order of the court to pay the sanctions.

We will see how the court will resolve this mess.

3) the rest of the charges request to impose "collateral estoppel" - a decision without a hearing based on a prior court decision - because Judge Becker ruled (and the Appellate Division 3rd Department affirmed while disregarding facts and whole motions and transcripts containing proof and being filed as part of the record on appeals) that I committed frivolous conduct in three proceedings.

I provided new evidence to the court showing that Judge Becker overruled himself in subsequent decisions, that Judge Becker showed his bias to me and my clients in his subsequent decisions and act of misconduct.

New evidence precludes imposition of collateral estoppel.

I raised the issue that criticizing a judge in motions to recuse - for which I was sanctioned - was fully protected by the 1st Amendment and due process of law to allow me to do my job for my clients without fear of retribution, and that the judge who is the object of criticism is disqualified from holding that I harassed HIM, as a matter of imposition of sanctions for frivolous conduct, because it is a long-set rule of due process in this country that a person may not sit in judgment of proceedings where he is a party or holds a personal interest in the outcome.

Moreover, I showed to the court that the rules of frivolous conduct in court proceedings and in attorney disciplinary proceedings are different, the burden of proof in attorney disciplinary proceedings is higher (subjective standard vs objective standard in the court rule of frivolous conduct) and that a decision made based on the objective-standard burden of proof cannot be a basis of collateral estoppel in proceedings where subjective standard is required.

The court actually listened and - strangely from procedural point of view - while the motion for a summary judgment was still pending, appointed a referee to hold a hearing as to outstanding issues of fact, which evidentiary hearing the referee refused to conduct.

Normally, 
  1. a summary judgment must first be denied, 
  2. then the evidentiary hearing held, 
  3. then the fact-finding report from that evidentiary hearing filed, then motions to confirm (by the disciplinary committee) and to disaffirm (by the attorney) be filed, 
  4. then the court decides the motions to confirm and disaffirm the referee report, and then, 
  5. if the court decides against the attorney, 
  6. the court allows the attorney to be heard in mitigation.

All of that procedure is screwed up in the Appellate Division 4th Department in my case.

At this time, there is no decision of the Appellate Division 4th Department on point 1 above (summary judgment), but there is a decision dated September 30, 2014 to hold an evidentiary hearing, and a decision to hold a hearing in mitigation (point 6), which can only be made when steps 1 through 5 were already satisfied.

Apparently, skipping all of those procedural steps are ok where I am involved, I simply am not entitled to the "rule of law", however abridged it is in attorney disciplinary proceedings in New York.

The motion for a summary judgment is still pending, it was not denied - yet the court ordered an evidentiary hearing held.

The evidentiary hearing was not held - because the referee, acting without authority, "decided" the motion, even though his only court-appointed role was and could be, by New York Constitution, to hear and report the facts from an evidentiary hearing, without any recommendations or decisions.

Since the evidentiary hearing was not held, there were no facts to report by the referee.

Yet, the referee filed a fraudulent referee's report without holding any evidentiary hearing.

The referee based his fraudulent report on cooked court transcripts claiming that the court conferences were "hearings" where I "testified".

In his report, the referee followed to the letter what Mary Gasparini asked of him in her "draft of the referee's report".

The draft of the referee's report was forwarded by Mary Gasparini to the referee after Mary Gasparini filed criminal charges against me (now dismissed) where she was the sole witness of the prosecution, thus completely disqualifying herself from prosecuting my disciplinary proceedings.

In other words - what the 3rd Department attorney disciplinary committee started as a royal mess, Mary Gasparini made an even bigger royal mess - and that mess continues without any control by the court.

I wonder how the court is going to sort out this quagmire - where the standards of proof do not match, the court-ordered evidentiary hearing is not held, the proceeding is prosecuted by a disqualified disciplinary prosecutor who engaged in proven fraudulent and frivolous conduct, and the charges cannot be sustained on evidence before the court - unless the court wears blinders or received direct instructions from up above as to how to rule in the case. 

The disciplinary petition, as it is shown above, is ALL sham - the sanctions of the now fast departing Judge Becker for correctly addressing his lack of legitimacy as a judge whose alleged election in 2002 was never properly confirmed by timely and authentic required documentary filings, for correctly addressing his pervasive misconduct in court cases - and the fraudulent charges that I did not appear somewhere where I could not appear and did not pay sanctions I did pay.

That is THE ENTIRE petition against me being prosecuted against me since January of 2013 which cost me and my family tremendous stress and financial losses.

Specialists with whom I discussed this petition were amazed that the petition is still pending, and was not tossed with sanctions against the Petitioner.

Which brings me to the conclusion that the petition - no matter how bad it is - may still be granted and my license may still be taken based on that petition, because very apparently, in New York I am below the law and no law applies to me.

The way all courts that handled these proceedings:

  • Appellate Division 3rd Department;
  • U.S. District Court for the Northern District of New York on removal;
  • U.S. Court of Appeals for the 2nd Circuit on appeal of remand;
  • Appellate Division 3rd Department on remand;
  • Appellate Division 4th Department on ex parte transfer
handled this case, as described above and throughout this blog, does not give me hope that on May 26, 2015 the court will finally wake up and apply the rule of law to my case.

Here are the names of judges who so far handled my case:

  • Appellate Division 3rd Department - judges 
  • U.S. District Court for the Northern District of New York - judges 
    • Norman A. Mordue and 
    • David E. Peebles whose court intern was caught snooping on me on my LinkedIn account that contained political statements;
  • U.S. Court of Appeals for the 2nd Circuit - judges 
    • Ralph K. Winter, 
    • Debra Ann Livingston, and
    • Denny Chin;
  • Appellate Division 3rd Department on remand - same as listed above;
  • Appellate Division 4th Department on illegal ex parte transfer - judges 
    • Nancy E. Smith, 
    • Eugene M. Fahey, 
    • Edward D. Carni, and 
    • Joseph D. Valentino; judge Fahey was promoted to the New York State Court of Appeals, after his illegal "sealing" order and an order denying, without an explanation, constitutional challenges raised in my cross-motion, twice - and allowing two apparently fraudulent charges and three unconstitutional charges based on clear judicial retaliation to proceed.

5 presumably highly educated and trained federal judges failed to read court documents indicating that the deposition and the motion that I was accused not to attend/oppose were dated 2008 when I was admitted to the bar in 2009, making that charge jurisdicitonally defective from the get-go and no "Younger abstentions" or other judge-created bars to federal civil rights jurisdiction applicable.

Plus, 8 also presumably highly educated and trained state judges failed to see that jurisdictional flaw and allow jurisdictional defective charges prominently placed at the beginning and the end of the petition (Charge I Specification I and Charge IV), to proceed.

It says a lot about qualification of our judges, doesn't it?  Either they do not know how to read, or they are too busy to read what is in front of them - and judge's inability or unwillingness to properly do their job and their complete lack of accountability to the people (the sovereign in this country) for their sloppy performance and misconduct in office is increasingly becoming a big issue in this state and this country.

As to my case, applying the rule of law will require of the court to toss the petition with sanctions against the Petitioner and its attorneys for frivolous conduct and for their attempts to defraud the court on multiple occasions - under the guise of protecting the public from me, no less.

Whether the court will actually apply the rule of law in my case, we will see in the near future.




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