A prosecutor is part of the judiciary - for some purposes, but not for others

I received yesterday a decision of Judge Kahn on Defendants' "motion for a judgment on the pleadings" asking to dismiss the action Neroni v Zayas where my husband, in claims that survived from the intermediate dismissal, claimed the following:

• that he was not given access to his own disciplinary file in the attorney disciplinary committee - before, during and even AFTER his disciplinary proceedings concluded and when his disciplinary file became, to all who would want to see it, a public record pursuant to Judiciary Law 90(10);
• that somehow it does not constitute any constitutional violation where a member of attorney disciplinary committee engages in post-disbarment investigations - something that the same Judge Kahn said previously that may be a constitutional violation in his previous decision.

Of course, Chief Judge Sharpe, Judge Kahn's superior, in the interim between Judge Kahn's decision # 1 (there may be a constitutional violation in post-disbarment investigations) and his decision # 2 (Plaintiff has failed to state a cause of action for a constitutional violation - in the same pleadings that were the basis of decision # 1), commenced Judge Sharpe's own action for an anti-filing injunction against my husband and included into that action claims based on Neroni v Zayas, over my head as a counsel in Neroni v Zayas litigation, over the head of judge Kahn as the presiding judge in that case, before that case was adjudicated.

Judge Sharpe used the yet-unadjudicated Neroni v Zayas case to punish my husband with a PERMANENT draconian anti-filing injunction that had nothing to do with any possible rule of law (currently on appeal).

So, I understand that Judge Kahn had to think long and hard as to how to adjust his Decision # 1 to Judge Sharpe's anti-filing injunction based on the yet-unadjudicated Neroni v Zayas - and produced a Decision # 2, which makes no sense, if two decisions are compared, but makes perfect sense in terms of obedience to the unwarranted opinion of Judge Kahn's superior.

A more specific analysis of Decision 1, Anti-filing injunction, and Decision 2 by Judge Kahn pertaining to the same case, will follow.

What I can say today is that a precedent has been created indicating that an attorney can be denied access to his disciplinary file before, during and after the conclusion of the disciplinary proceedings.

In my personal opinion, knowing all I know about the workings of the attorney disciplinary committees in general, and of this particular disciplinary committee (of the Appellate Division Third Department) specifically, this precedent was created to protect the committee from the following investigation through discovery:

• that attorney disciplinary committees in the State of New York, and the attorney disciplinary committee of the Third Department, have absolutely no archives and no records of what they are doing and operate as a shadowy - and lethal - force under the rug of the judicial system, without any supervision and without any accounting for their actions;
• that the committee has absolutely no records of who voted to investigate or prosecute an attorney - and how that particular member of the committee voted;
• that when the committee tells the court, in sworn pleadings, to obtain public discipline of an attorney to the point of stripping the attorney of his hard-earned law license, reputation and any ability to earn a decent living for himself and his family (because a disbarred attorney is usually blacklisted and denied employment anywhere he turns), the committee may commit perjury left and right, because - see above - no archives exist, and there is no way for the disciplined attorney to obtain access to the archive to prove that.

Oh, and there is yet another "discovery" by Judge Kahn in his decision.

Judge Kahn, in his decision # 2, was carefully trying to avoid the issue that my husband was trying to get access to HIS OWN disciplinary file, a file cited by the disciplinary committee in the court pleadings (without providing the actual certified copies of documents) and based on which my husband's license was revoked.

In his attempts to avoid the necessity to address the key issue of litigation, Judge Kahn made the following two stunning and diametrically opposite conclusions:

1. Freedom of Information Law (which was irrelevant to my husband's due process right of access to his own disciplinary file) is not applicable to the judiciary (that is correct), and, therefore, was not applicable to the Defendants - making them part of the judiciary (even though they acted in my husband's disciplinary case as prosecutors, and thus, part of an executive branch of the government);
2. My husband (and, obviously, I as his attorney in federal court) is "confused" in arguing that, if the prosecutor is actually part of the same court that was adjudicating his disciplinary proceedings, the disciplinary committee was disqualified from proceeding as a prosecutor in that disciplinary proceedings.

In other words, my husband's claim was clear as day:  a prosecutor may not claim to be a judge for one purpose (to protect themselves from access to the file) and to be a prosecutor for another purpose (claiming that they are not disqualified under the judge-advocate rule and separation of power principle).

Pursuant to Judge Kahn (Decision # 2) - the prosecutor may now be both - they may deny access to the file as if they are a judge, and they may still continue to claim that they were a proper prosecutor.

I would be surprised at such a stark change of opinion, but I am not, for a good reason.

Judge Kahn is part of one of the American Inns of Court where the law firm where my husband's disciplinary prosecutor John Casey who sold his prosecutorial discretion for the right to represent one of the politically subjects turned in (by my husband and myself) for his investigation is a member and may be providing to Judge Kahn and other members of this particular federal district court benefits, not to mention that this law firm, Hiscock & Barclay employs multiple recent former confidential law clerks of judges of the U.S. District Court for the Northern District of New York.

And, partners from Hiscock & Barclay "serve" on committees appointing magistrate judges of NDNY, and partners from Hiscock & Barclay "serve" on committee making local rules for the NDNY.

And, and, and...  Who knows what exactly Judge Kahn may have discussed with John Casey or his partners behind closed doors during his monthly-or-more-frequent meetings behind closed doors in the American Inn of Court?

Who knows what took place during those discussions, what kind of incentives may have been offered to Judge Kahn?

The reason to prohibit ex parte communications to judges is obvious - there is no way to restore what occurred during those communications, and interested witnesses may not be relied upon to produce the record.

One piece of evidence is apparent enough though - comparison of Decision # 1 with Decision # 2 by the same judge, made on the same pleadings, with diametrically opposite rulings - should raise questions and eyebrows.