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.







Thursday, March 31, 2016

Dancing with the spirit of #AntoninScalia - will it help George Mason Law School from closing its doors to rename itself after the devil?

It has been reported, nearly at the same time that:



George Mason has been a relatively cheap school so far - in money, I mean - until today, when it decided to change its name, as "Above the Law" commentators rightly point out, from the name of one of this country's founding fathers to the name of this country's worst crooks.

Shows the lengths to which law schools would go to save themselves from demise...

The honorable profession?

This recent name-changing trick will teach George Mason law students more about "legal ethics" than their entire ethics class...

What Constitution?

As you know, any law is as good as the weakest link in its enforcement.

There is - I've heard - a law called the U.S. Constitution.

There is - I've heard - a clause within that law called the Supremacy Clause, trumping any inconsistent law and making it void, or a nullity (like in "zero").

Now, what happened if your constitutional rights are violated, let's say, in the blessed state of New York, this state, 



  • where its Chief Judge asks you, with a smile, to notify you what is wrong with the state court system 


Once again, in a larger font:


  • You would report to her that New York State courts (starting with herself) are corrupt - so that she would do what? - see comments in the blog linked in the previuos "bullet", about "report corruption".
So, what will happen to you if your constitutional rights are violated in the blessed state of New York, this state, from where people are running, fast.

The New York, where these two are at the top, DiFiore covering Cuomo's misconduct, Cuomo elevating DiFiore, DiFiore - well, you know what happens next...:



If your constitutional rights are violated in THIS New York:


Ok.

Here is what will happen.

1) You raise your constitutional issue in the lowest state court.

The reactions will be from - huh? to a sanction for frivolous conduct.  

Judges Carl F. Becker (now retired) (Delaware County), Robert Mulvey (Chief Administrative Judge, 6th Judicial District), Michael Coccoma (Otsego County Supreme Court, Chief Administrative Judge, upstate New York), Brian Burns and John Lambert (Otsego County Supreme, County and Family Court), Kevin Dowd (Chenango County Supreme Court), James Tormey (Chief Administrative Judge of the 5th Judicial District) - that's the Family-County-Supreme Court, "higher" "echelon" of judges universally believe constitutional arguments are frivolous, or constitute "lying" to the court - that's Frank B. Revoir, of the Chenango County Family Court.

Justice-level judges are simply illiterate and do not have any opinion on constitutional issues, nor on any other legal issues, they are waiting what the prosecution will tell them to do.



He is resigning "do /sic/ to both personal and health reasons".  

He also plans to "assist residents in any manor /sic/" he can.

If he cannot spell "due" and "manner" and use those words appropriately, do you think he knows how to pick up a constitutional problem and how to apply existing law?  

I highly doubt it.

You might just as well not say the word "Constitution" in trial-level courts, the word causes judges to be very upset and angry, unless it is on their swearing-in day, then they are happy, because that one word paves a path for them to their salary and power.

2) After you are screwed in trial court, you pay your filing fees, put your record together, pay your attorney and go to the appellate court - again with your pesky constitutional issues.

Appellate court is the court where judges go to "serve" before their retirement.  

They are very busy - and very tired - people.  

Here is what Judge Pigott, of the NYS Court of Appeals, said about "PJs" - that's not "pajamas", that's "Presiding Justices of Appellate Divisions":


Ok, so the appellate judges are very, very, very tired.  

You, the taxpayers, are paying them close to $200,000 a year to do their jobs, with benefits, while you, average New Yorkers earn - what?  Well, you know how much - and they are "tired" to review your constitutional issues.

You know what they do with your constitutional issues?

No, I will not use four-letter-language on this blog, not even Russian "mat".

I will use the legal terminology appellate judges use: they use the so-called "constitutional avoidance".

You may read the interlinked law review article, or you might not waste your time.

"Constitutional avoidance" means - "TL'DR" - too long, do not read.

So, the very busy and very tired appellate court screwed you, as the trial court did, with all your money paid for filing, records and attorney fees, and refused to hear your constitutional issues.

What's next?

You can still try to crawl up and up, you have two more levels to reach in the appellate pipeline from a state court decision - NYS Court of Appeals and U.S. Supreme Court.

NYS Court of Appeals says this (we get to pick our cases):


Even though CPLR 5601(b)(1) trails the above text of Article 6, § 3 (b) (1)  of the New York Constitution disagree and give NYS Court of Appeals no discretion to reject your constitutional appeal "as of right", this is what Judge Pigott (a real cute, witty guy, isn't he?) says on the subject:


He says: "we are not last because we are right, we are right because we are last".

And they are.

They will simply toss your constitutional question, because it is "insubstantial" - and what will you do when you are screwed?

Where will you go?

To the U.S. Supreme Court?

The U.S. Supreme Court, with its 8 elderly judges (or 9, doesn't matter), has too little time on its busy collective hands to handle all the hunting trips, all the book signings and to "serve" on all the boards and to give all the speeches - to address your petty constitutional issues.

The U.S. Supreme Court, really has a "discretion" to take or not to take a case.

And, that discretion is usually used - well, you know how.  

Have you been on a hunting trip with a U.S. Supreme Court justice?  No.  Well, you are screwed, again.

And, even if you are intending to beat through a brick wall with your head, there is this little thing called "expenses".  The U.S. Supreme Court does not allow e-filing and does not allow filing of computer-generated briefs.

Instead, it requires filing "typographically typeset" by certain companies (I wonder what kind of hunting trips they go to with the heads of those companies).

42 copies of your paid-for "typeset" petitions must be submitted to the U.S. Supreme Court, together with a filing fee, so that they throw it away, at their pleasure.

BUT BUT BUT BUT - you can say

We have federal courts!!!!!

We have the Civil Rights Act, we can file that famous 42 U.S.C. 1983 action!

Well.

There are two answers to this question/exclamation - long and short.

Let's start with the short one.

Yes, you can.

Do you want the long one?

First, you will not find an attorney who would be willing to sue on your behalf - too many of them were sanctioned, suspended and disbarred as of late, for "frivolous constitutional arguments".

Second, even if you file pro se - your case can be dismissed even before service, by the court itself, because, once again, the court is busy and you are a pest.

There is a zillion "deferences" ,"immunities" and other hoops that you might not be able to overcome with your petty constitutional questions.

If you sue in federal court BEFORE your state court case ends - they will dismiss your case on Younger abstention grounds.

If you sue in federal court AFTER your state court case ends - they will dismiss your case on Rooker-Feldman, sovereign immunity, prosecutorial immunity and judicial immunity grounds.

But they will dismiss it.

And will sanction you.

And will make you pay your abuser's attorney fees.  Possibly, tens of thousands of dollars.

Oh, and there is an appeal "as of right" to the federal courts of appeals? Right?

Well.

Again, two answers - short and long.

Short:  yes, you do have such a right.

Long:  your case will be put on a "fast-and-sloppy track" for three octogenarian judges who rubber stamp "those civil rights cases" in non-precedential dismissals by the dozen.

Your filing fee is gone.

Where else can you go?

The U.S. Supreme Court.

AGAIN?!!!!!

Yes.

So - if you have a constitutional question, you know you are screwed.

And, if a constitutional violation cannot be enforced by a "person from the street", the U.S. Constitution is unenforceable, and - for all reasons that matter to you - does not exist.

Wednesday, March 30, 2016

The new U.S. Supreme Court decision - a loss to the 1st Amendment

Due to an even number of U.S. Supreme Court judges, yesterday, a 1st Amendment case resulted in affirming the lower court's decision - because of an "even divide" of the court.

The case was Friedrichs v California Teachers' Union and indicated a victory to teacher's labor unions over individual teachers who did not want to finance political/lobbying activities of the labor union that they did not support.

Of course, the losing party may apply for a rehearing, but the chances of it are small.

It is sad when somebody's constitutional rights depend on how many judges are available on a court...


A clamp down on immunities in disciplinary cases in occupational licensing - are we seeing a new policy emerging, to save the U.S. economy from further stagnation?

As many economists so far have been warning, in scholarly articles and books, occupational licensing in the United States, which now restricts entry and participation in over 30% of jobs (and, probably, close to 80% or more of well-paying jobs) in the U.S., is not helping consumers, is not evidence-based, is the result of lobbying efforts of interest groups that want to restrict competition, and is stifling the U.S. economy.

While federal courts are not allowed to engage in policy-making, that's a legislative function exclusively given by the U.S. Constitution, Article I, to the U.S. Congress - they do engage in that policy-making, and heavily so.

That is done by trends in court decisions.

The two decisions in occupational licensing on issues of immunities of the disciplinary board from civil rights lawsuits in 2015 may herald a turn of higher-level federal courts against their prior universal position to grant immunities to disciplinary authorities in occupational licensing no matter what.

In February of 2015, in the case North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court denied immunity to disciplinary boards in professions regulated by its own professionals ("market players").

In June of 2015, the U.S. Court of Appeals for the 6th Circuit denied even qualified immunity as a matter of law to a disciplinary board sued after it suspended occupational licensees' licenses for refusal to give self-incriminating testimony in disciplinary proceedings, and remanded the case to a trial in the district court.

In July of 2015, the White House has issued a "policy" report on occupational licensing starting with this "executive summary":



In October of 2015, the Federal Trade Commission has issued a harsh rule to its staff for prosecution of antitrust violations by the occupational licensing disciplinary boards, based on North Carolina Dental, outlawing "active market supervision" by market players in the disciplinary proceedings (like it happens in "market supervision" of the legal profession, for example).

Usually, in disciplinary proceedings, federal courts give to prosecutors ABSOLUTE prosecutorial/quasi-judicial immunity left and right, and claim that such immunity is jurisdictional, and even sanction victims of such prosecutors for daring to sue them in civil rights cases.

In this case, the 6th Circuit denied to prosecutors even QUALIFIED immunity - as a matter of law, whether such immunity can be granted as a matter of a mixed issue of fact and law, is remanded back to the district court.

The beauty of the issue is that remanded for trial the issue whether qualified immunity applies, exposes prosecutors to a trial on damages - as the 6th Circuit expressly said in its decision - and that is exactly what prosecutors are usually spared, on the basis of ABSOLUTE quasi-judicial/prosecutorial immunity.

It appears that we are seeing a trend, starting from the highest level (which did not reach the mentalities of district courts and state governments yet) to clamp on occupational regulation:

1) by denial of antitrust "state interest" immunity (the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, February 2015), and

2) by denial of absolute - or even qualified - prosecutorial and quasi-judicial immunity (the 6th Circuit in Moody v Michigan Gaming Board, June, 2015).

The trend appears to be caused not by the need to apply the rule of law and uphold people's constitutional right to earn a living, but because of money matters - because the U.S. economy will not be able to get out of its apparent current stagnation unless it unplugs its occupational licensing cancer.

I will continue to follow this trend.

Stay tuned.



 

A certiorari petition to the U.S. Supreme Court challenges the 6th Circuit's decision to uphold occupational licensees' 5th Amendment rights in disciplinary proceedings

An interesting petition for a writ of certiorari has been filed and is pending before the U.S. Supreme Court about occupational licensing.

The appeal is by the Michigan Gaming Commission and it is challenging the last year's decision of the U.S. Court of Appeals reversing the district court's grant of summary judgment to the Gaming Commission, the text of the case is available here.

The two questions before the court are:


2) are occupational licensees entitled to 5th Amendment protection in disciplinary proceedings?  The U.S. Court of Appeals for the 6th Circuit said they are:



The case is out of the state of Michigan.

What is not presented in the "questions presented" (no pun intended) of the petition for a writ of certiorari is that the 6th Circuit denied even qualified immunity (as a matter of law) to the Licensing (Gaming) Board, and remanded the case back for trial on the issue of immunity.

A strong brief in opposition of the petition has been filed by the occupational licensees - race drivers who lost their licenses (and jobs) because of their refusal to make self-incriminating statements in licensing disciplinary proceedings, which the 6th Circuit considered an unconstitutional action by the licensing board.



An amicus curiae brief from California Sheriffs' Association asks the U.S. Supreme Court to reverse the 6th Circuit's decision:



 So, what are the "disastrous consequences" to the interests of police as to 5th Amendment protection against compelled self-incrimination "during investigations"?

The position of the Sheriffs' Associations is that:

 
Or, in other words, the Sheriffs' Association want to be able to continue to compel self-incrimination in interrogations under SOME grounds - as long as they do not CRIMINALLY prosecute the individual from whom the self-incrimination was exacted by compulsion.

Yet, the Sheriffs' Association's "interest" in compelling testimony of PUBLIC EMPLOYEES (not of private occupational licensees) in administrative proceedings has nothing to do with occupational licensing, and, if the U.S. Supreme Court rejects the writ of certiorari or affirms the decision of the 6th Circuit, that will not create the problems the Sheriffs' Association are claiming will be created for them 




As much as I would like public employees to be disciplined for misconduct (that was, as I understand, the Sheriffs' Association's point), I would prefer it to be done following the U.S. Constitution, and without the use of compelled self-incrimination.

Because - if one of us can be compelled to incriminate oneself, and thus lose his or her job, it is applicable to anyone.

And that's just wrong - as the 6th Circuit, fortunately, has recognized in reversing the grant of summary judgment to the Michigan Gaming Board on 5th Amendment grounds.

It is an interesting case, I will cover how it will develop - and will run a separate blog on a separate issue regarding occupational licensing that the case raises.

Stay tuned.

 






Tuesday, March 29, 2016

Disbarment of Silver finally recognized (but not quite), Skelos remains listed as a licensed attorney with no record of public discipline

Even though Sheldon Silver and Dean Skelos were both convicted of felonies last year, they appear as attorneys with no record of public discipline.

I wrote about it repeatedly on this blog, see, for example, my blog in December 2015 and this recent blog in March of 2016.

Sheldon Silver's disbarment, as of the date of his conviction in November of 2015, was recognized by a New York appellate court yesterday, on March 29, 2016.

The court found grounds for similarity (for purposes of automatic disbarment as of the date of the conviction) between the federal conviction of Silver in November of 2015 and a New York State felony statute:

"A conviction of a federal felony does not trigger automatic disbarment unless the offense would constitute a felony under New York Penal Law (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16 [1st Dept 2009]). While the federal felony need not be a mirror image of the New York felony, the two crimes must be essentially similar (see Matter of Margiotta, 60 NY2d 147, 150 [1983]; Matter of Bardey, 133 AD3d 77 [1st Dept 2015]). Essential similarity in this case is established by comparing the language of the relevant state and felony statutes, as well as by examining past precedent with respect to the foreign felony at issue (Matter of Schoenecker, 107 AD3d 113 [1st Dept 2013).

A person is guilty of larceny by extortion under New York law when "he compels or induces another person to deliver such property...by means of instilling in him a fear that, if the property is not so delivered, the actor or another will...[u]se or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such a manner as to affect some person adversely" (Penal Law § 155.05[2][e][viii]). Under 18 USC § 1951(b)(2), extortion is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, [*2]violence, or fear, or under color of official right."

Yet, on the website of NYS Unified Court System, Silver is still listed today as a licensed attorney with no record of public discipline.

We will see what amount of time will take New York to reflect the court's decision on Silver's attorney registration website.

For "mere mortal" attorneys the NYS Unified Court system bends over backwards to reflect the decision about suspension or disbarment the day the decision is made.



Dean Skelos, former Majority Leader of the New York Senate, also convicted last year of felonies, similarly continues to be shown as a licensed attorney with no record of public discipline.

 



Somehow, old connections die hard?

Janet DiFiore ceremonial fraternity swearing-in gathering at taxpayers' expense, Part III. All public officials in NYS are now judges, and all state prosecutors are now favored pets of NYS Court of Appeals

I continue publishing my own transcript (with comments) of the swearing-in ceremony of NYS Court of Appeals Chief Judge Janet DiFiore of February 8, 2016 (Judge Eugene Pigott of the NYS Court of Appeals presiding).

The official transcript is available here.  

The official transcript is not very accurate, it does not make notes of laughter, applause and other interesting reactions and body language of people in the video, that's why I am making my own transcript - AND, most significantly, it does not reflect that Judge Pigott calls numerous public officials who are NOT judges - judges 

(like, for example, Judge Pigott calls NYS Attorney General Eric Schneiderman "Judge Schneiderman", at 7:50 and 8:02 on the video, calls NYS Solicitor General Barbara Underwood (Schneiderman's appellate attorney) "Judge Underwood", at 8:18-8:20 - the transcript replaced the word "judge" with something else each time Judge Pigott called these attorneys appearing in front of the court /and representing the court in civil rights cases in federal courts/ "judges").

I reflected in my transcript each instance of the Court of Appeals calling non-judicial officers "judges" and applauding to it.

JUDGE PIGOTT:

We left off in the transcript at 5:00 on the video, and now I continue the transcript from that point.

"We also have the Honorable Carmen Ciparick with us, Judge Ciparick (applause).  

==
(Comment:

Carmen Ciparick has long retired from the court and at the time of the ceremony, was a private attorney that works for a large New York City law firm Greenberg Taurig, LLP.  Look at the number of scandals and "controversies" the firm was involved in - with no attorneys disciplined, possibly, because they hire retired judges and other influential people and put money into the right kind of lobbying?



One of the firm's partners, by the way, is a referee on the NYS Judicial Conduct Commission - to keep judges in front of whom Greenberg Taurig litigates - in check.

Another way of connection to the courts in front of which the firm practices is to hire judges.  Like retired (in 2012) Judge, and now private attorney, Carmen Ciparick, who is also now a "Co-Chair, National Appellate Practice Group", and obviously has, through her personal connections and this "group", ex parte access to and influence upon judges in front of whom GT practices:



Attorney Ciparick (invited to the Court of Appeals) and recognized as one of the court's own, is handling appellate practice at her current employer Greenberg Taurig, and is obviously appearing in the lower appellate courts and in the NYS Court of Appeals.



Under the NYS Code of Judicial Conduct, Pigott's public recognition of Ciparick as a "judge" at the time when she was a private APPELLATE attorney appearing in New York State Appellate Courts was highly inappropriate.

End of comment, transcript resumes

==

And last... not last, but not least, we have two more... but the Honorable Robert Smith is with us today, Judge Smith (applause).

And last, but, certainly, not least, our latest or last Chief Judge, the Honorable Judge Lippman is with us today, Judge Lippman (DiFiore leans into Pigott and prompts him to introduce a "judge Traficanti").

Lippman was not at that time a judge, but a private attorney for Latham & Watkins LLP, as of January 7, 2016:


Moreover, at Latham Watkins LLP, "Chief Judge Lipman advises clients on appellate practice nationawide", and thus his appearance at the swearing-in ceremony and hearty welcome in the Court of Appeals as still a "judge" is highly inappropriate and constitutes endorsement and a sign of favoritism of his law firm and his clients over his opponents.




Joe! Good to see you (as Judge Traficanti stands up). 




The dust hasn't settled on the Lippman era yet. Jonathan hasn't been without us for very long. 

I did want to mention a couple things. There were a number of people who I had talked to who had applied for the chief judgeship and one of them had said to me, "When you think about succeeding Judith Kaye and Jonathan Lippman, you're talking about the gold standard."  And there are a lot of people who said "I just don't think I'm in that class", and I think they were right.  (Laughter starts).

It is very difficult (VERY LOUD laughter, 6:17-6:23)... it is very difficult to picture someone succeeding Judith Kaye and
Jonathan Lippman, but we have a candidate, thanks to the Governor.  (I continue to highlight Judge Pigott's flattery in pink).

want to say a word about Judith Kaye, also, with respect to the commission on nomination.  

You know, to get to this court, you have to apply to the Commission.  Commission does great work... They go through however many applications there are, they narrow it down, they interview an exhaustive number of people, and then they supply the Governor with a list that can be no fewer than four and no more than seven.

And when this last list came out, it was applauded all over the state (shakes his head) for the quality of the people that were on it that gave the Governor the opportunity to pick from a real gold standard bunch, and (a crooked smile) we all think he's done a pretty good job.

But, it was Judith Kaye who ran that Commission for a number of years. and was so successful (Andrew Cuomo makes grimaces as if he is bored, 



DiFiore is not listening, communicates by her eyes and nodding and raising her eyebrows 7:18-7:20 with somebody in the audience) 



in giving a number of Governors the people who ultimately ended up on the Court.

So, another Kudo to Judge Kaye and the great work she did.

And in addition to those I've introduced, we have a number of colleagues from the judiciary, from the Appellate Divisions, and from the trial courts that have joined us today and without... before your hands get too tired (makes a clapping jesture) without remembering each one of those - thank you all so much for coming.

Now, we have some state officials beside, and one of them is our great Attorney General the Honorable Eric Schneiderman, Judge Schneiderman (everybody applauds, including the entire Court of Appeals),  

As a point of personal - I don't want to say "pride", but - Judge Schneiderman has the Solicitor General Barbara Underwood who we see ALL THE TIME, who is simply outstanding as an Attorney General.

If you ever notice, we are live on the Internet, and we kind of sit a little bit closer to bench when Barbara Underwood is arguing.  I know she is here today - Judge Underwood (applause).

I don't know if this gonna happen this time, but it seems like every time the Comptroller of the State of New York is introduced, he gets more applause than anybody else (laughter - separate loud laughter of DiFiore).

But, I want to introduce our State Comptroller, Tom DiNapoli.  Judge DiNapoli. 8:35 on the video (redacted on the official transcript, p. 4) (applause).

(DiNapoli, as part of New York State executive branch of the government, is often or may be a party that is appearing in front of New York courts - inviting him and recognizing him as a "judge", especially with an indication that the presiding judge Pigott is on a first name basis with DiNapoli, was highly inappropriate - T.N.).

And also with us today is the Chair of the Assembly of the Judiciary Committee the Honorable Helene Weinstein, Judge Weinstein (applause).  I call her "judge" (that is unredacted in the transcript).




We should have a chair with your name on it, Helene, and I don't think we've ever had an occasion here when you haven't been here, and you are such a great member of the Assembly, and almost a member of our court.  Thank you so much for all that you've done for us ... over the years.

We also have a number of people from law enforcement here.  

We have, among others, the Acting District Attorney from Westchester County could James McCarthy stand and be recognized?

He is still smiling, that's a good sign (Pigott and Difiore shift in their seats, smile and turn towards one another as McCarthy is introduced - T.N.).

And we also have Thomas Zugibe, president of the DA's Association of the State of New York.  




Tom, could you stand and be recognized? Way in the back (Pigott is raising his hand, enthusiastically pointing at the end of the courtroom).  

Another point of personal pride, Mr. Zugibe, you know, we have we had that escape up at Dannemora in Clinton County 
and a lot of us watched that with great interest and concern.  I thought that the District Attorney of Clinton County, Andrew Wylie, did such an outstanding job. 

Every time I saw him or anytime he was on explaining things, I was so proud to be a lawyer, so proud to be part of the judiciary, so proud of how our law enforcement worked, that it was just a great tribute to all of the DA's, I think, all 62 of the district attorneys in this state. Thank you, all of you district attorneys who are here, for your great work. You can applaud them. (Applauds himself) 

=====================================


Here is a description of a lawsuit naming the celebrated Thomas Zugibe, sued for prosecutorial misconduct in 2009 - prosecutorial immunity could have resulted in dismissal of the lawsuit, but that should not have affected attorney discipline.  No attorney discipline though, but an invitation to the swearing-in ceremony of the NYS Chief Judge and personal recognition in a live-streamed Internet session.

Here is a list of lawsuits against Thomas Zugibe in federal court (he is listed there as "dft" - defendant, or "pty" in appellate cases).

A distinguished career.

And there is no "record of public discipline", even though EVERY single civil rights case provides enough basis to investigate and prosecute the prosecutor - and prosecutorial immunity is allowed only because (at least this is the pretext) there is attorney discipline available for prosecutors.

Once again, here is the list of lawsuits against Zugibe - and no discipline. And admiration of NYS Court of Appeals Judge Pigott.




Criminal defendants in Rockland County, you are screwed, the NYS Court of Appeals clearly sent a signal to courts below who to favor.

Another object of Judge Pigott's admiration, Clinton County prosecutor Andrew Wylie, was also recently sued, and escaped liability only because of "absolute prosecutorial immunity" which exists only on condition that there is, as an alternative, prosecutorial discipline - which does not exist in New York.

Here is the list of lawsuits against Andrew Wylie off Pacer.gov:




Criminal defendants in Clinton County, you are screwed, too.  With a judge from the top state court expressing personal admiration for Clinton County prosecutor Andrew W

So.

Another five minutes of the transcript.

Another five minutes of brown-nosing, praising attorneys for the government that appear in front of the court (no criminal defense attorneys were mentioned as invited there, or "recognized" by the Court of Appeals), calling NYS Attorney General and Solicitor General as "Judges", calling the State Comptroller a "Judge" (which was redacted out of the official transcript).

But, the most disgusting part is the open praise to ALL 62 District Attorneys in the State for "doing a great job".

Remember, the District Attorneys are the main source of judges in the State of New York and in this country.

Also, the district attorneys, including those in New York, are increasingly accused of knowingly drumming up wrongful convictions.  

That issue was raised in the press.

That issue was raised at the recent public hearings for the Statewide Commission on Attorney Discipline.

It was mentioned in that hearing (I wrote about it on this blog before) that the DA's Association "descended like paratroopers" upon NYS Senator DeFrancisco and tried to block legislation that is seeking to make DA's accountable for misconduct (while the existing attorney disciplinary system does has an unwritten policy not to prosecute prosecutors).

Here is the letter of the state DA's Association to the New York State Legislature asking to leave prosecutorial discipline as it is now (as non-existing).

Those are the "honorables" celebrated and openly recognized, with admiration by the New York State Court of Appeals, in a live-streamed court session.

Criminal defendants of the State of New York, you are screwed.

And, at the background of wrongful convictions, rampant and unaddressed prosecutorial misconduct, one of the judges of the top state court congratulates all prosecutors in the State of New York for the "job well done" and only prosecutors get to be invited to the swearing-in ceremony of the new Chief Judge?

And that's for the court that hears criminal cases all the time, with those same prosecutors appearing in front of the Court?

Not too crooked.

I will continue with my "annotated transcript" of DiFiore's swearing-in ceremony. 

Stay tuned.










Ellen Coccoma, jack of all things - without time sheets, of course

I just wrote a blog about "no time sheets for Ellen Coccoma, the Otsego County (NY) County Attorney working side jobs and handling legal reviews of FOIL requests for her own time sheets.

And, as part of the blog, I provided a scan of Ellen Coccoma's biography on the website of the law firm Hinman, Howard & Kattel where she toils as "special counsel" during her taxpayer-paid time, and without filing time-sheets (or while destroying them after they are requested through FOIL).

Here it is, again:


First, where does the busy County Attorney, who had no time to answer that there are NO time sheets on file with the county for 6 MONTHS - have time for all those other "services" and jobs?

And, for a County Attorney, isn't it a conflict of interest to sit on the "Village of Cooperstown Zoning Board of Appeals"?  Where ordinances from the Village and decisions of the Board can come into direct conflict with the County?

Does a counsel for suspects to be charged by the grand jury get to control the administration of oaths of the grand jurors and the choice of the prosecutor presenting the case?

In an interesting turn of events, the South Carolina Attorney general "fired" the special prosecutor that he assigned, after his own recusal, to investigate corruption in the General Assembly of South Carolina.

South Carolina Attorney General clearly is disqualified from investigating or prosecuting such a case - becase SC AG represents the General Assembly and each and every one of its members (if they are sued for constitutional violations resulting from their criminal acts).

For that reason, SC AG has no authority to "fire" a special prosecutor assigned to that case.

But, here it is, that happened.

And, the courageous special prosecutor actually took SC AG to court to verify his authority to fire him.

The special prosecutor reportedly wrote in his petition to the S.C. Supreme Court that the South Carolina Attorney General (the counsel for the subjects of investigation, members and/or employees of the state General Assembly) "has instructed Jim Parks, the clerk of the state grand jury, to refuse to administer the oath of office to special prosecutors so they can use the state grand jury".

Not too crooked, is it?

Imagine if a criminal defense attorney for a suspect is allowed to influence the grand jury proceedings in such a way?

That criminal defense attorney would be immediately disbarred and criminally prosecuted.

I will hold my breath whether that will happen to the S.C. A.G.

I will continue to cover this case.

Let's see what the Supreme Court of South Carolina will decide.

Stay tuned.


John Muehl attempts to strike at the Neronis - stupidly so, but that's John Muehl...

Here is a letter my husband and I received yesterday in the mail from the Otsego County District attorney John Muehl - along with the letter from the Otsego County FOIL appeals officer who, under the threat of a lawsuit, had to disclose that Otsego County does not have on file time sheets of its County Attorney Ellen Coccoma who also has a side job with a large Binghamton law firm Hinman, Howard & Kattel and works for that firm (including court appearances for private clients) during her taxpayer-paid time.

I am sure John Muehl talked to Coccoma and was "inspired" by her in his little blunder of March 17, 2016:


Actually, I already asked John Muehl to provide to me his order of assignment for me to be sure if he is assigned to the case of burglary and attempted arson in our home that Delaware County authorities would not investigate since September of 2013.

Muehl provided an order of assignment which showed he was assigned to another case - of a burglary by the same individual, but at our neighbor's home, one year earlier, here is my blog about it.

The letter of March 17, 2016 is copied to the newly-minted Delaware County Judge Gary Rosa who, after pledges to voters of being fair, impartial and following the law, quickly became the 2nd (third?) Judge Becker.

Rosa recently signed a letter order denying my request to remove Muehl as special prosecutor from the burglary and attempted arson case in our Delhi home, as not being an impartial prosecutor and jeopardizing the investigation by his bias against me and my family, and employing Michael Getman, an attorney who my husband is suing since 2009 for fraud upon the court.

Obviously, Rosa signed that order "keeping" John Muehl on the case to which he was never assigned, obviously without reading the order of assignment of John Muehl that I received later 




(I did not receive yet the order of assignment when I made the request to take Muehl off the case, so my request is moot - since Muehl was never assigned to my case, as the order of assignment showed, in the first place).

Recently, Rosa engaged as a presiding judge in yet another case where he had a disqualifying conflict - but stayed on the case, because it was financially beneficial for his law clerk's husband James Hartmann. 

So, while duping the voters into voting for him, claiming during his election campaign that Rosa is not like Becker, Rosa is Becker's twin brother where misconduct and conflicts of interests are concerned.

And, it is to Rosa that Muehl, who was, once again, NOT assigned to our case, sends a copy of his "last call" letter of March 17, 2016.

"Cooperate" with Muehl or Muehl will close investigation that he was never authorized to handle.

By the way, Muehl tried to entrap me into unauthorized practice of law.

In the letter of March 17, 2016 published here Muehl mentioned that he sent something to "us" on December 11, 2015.

On December 11, 2015 my law license was suspended, and I could not represent anybody else other than myself.

Muehl sent his demands on December 11, 2015 only to me, not to my husband.

Had I given my husband those demands, the same Muehl would have charged me for unauthorized practice of law.

I am writing here about Muehl's shenanigans as a citizen journalist, notifying the public, including criminal defendants, attorneys representing them, as well as for witnesses who Muehl subpoenas or otherwise contacts in cases where he is ALLEGEDLY assigned as a "special" prosecutor - without checking Muehl's order of assignment, there is no assurance that Muehl is telling the truth and is really assigned to the case.

Because, as this case shows, Muehl may be lying, and that includes lying to the court.











Wife-of-a-judge Ellen Coccoma and the saga of her time sheets as the Otsego County Attorney

Some New York agencies are a pleasure to work with in terms of Freedom of Information requests and some are ... well, not a pleasure to work with.

For example, I do not recall having a problem, to date, when filing FOIL requests with the office of the New York State Comptroller.

The NYS Comptroller's office 

(1) has a contact e-mail for FOIL requests;
(2) promptly responds to FOIL requests;
(3) promptly provides requested records, and
(4) even has a public list of types of records that are available for FOIL requests - whether that list is complete or incomplete, I did not have time to check yet, but it is long, 11 pages.

One of the items on that 11-page list is time-sheets of employees.

It is understandable that employees on taxpayers' payroll must have time-sheets showing whether they actually worked on a certain day or not.

If they didn't work on a certain day, they cannot draw their salaries and benefits for that day (or for hours not worked).

That principle is applicable to taxpayer-funded public officials on all levels, from state to county to local governments.

Apparently, not so for wifes-of-judges who are public officials.

I filed, long time ago, in September of 2015, a FOIL request regarding time sheets of Otsego County Attorney (NY) Ellen Coccoma, who is wife of the Chief Administrative Judge of upstate New York Michael Coccoma.

Yesterday, on March 28, 2016, as part of my administrative appeal of constructive denial of my FOIL request, after assurance of a prolonged "legal review" of my request, I finally got the answer to  my inquiry for Ellen Coccoma's time sheets - there are none.



Now, why did Otsego County need 6 months and an administrative appeal of constructive denial of my FOIL request to provide an answer that there are NO public records responsive to my request?

To give Ellen Coccoma time to find and destroy those time sheets better?  After her alleged "legal review" that Otsego County claimed they are doing?

So, either Otsego County Attorney Ellen Coccoma destroyed those as part of her alleged "legal review", or such time sheets were never filed by her.

And that's a shame.

Because I know for a fact - and there are court records to back me up - that Ellen Coccoma, during daytime, when she, as a full-time, taxpayer paid Otsego County Attorney was supposed to do work for Otsego County - was representing private clients in private court cases, in her side job as "special counsel" for Hinman, Howard and Kattel, a large law firm out of Binghamton, New York.




"Coincidentally", Ellen Coccoma was recently part of the Professional Conduct Commission of the Appellate Division, 3rd Judicial Department.

As an attorney and "officer of the court", spouse of a high-ranking judge, and a recent prosecutor of attorney misconduct, Ellen Coccoma should be beyond reproach - not in the sense that she is immune to criticism and above the law, but she should conduct herself to a higher standard than the lay public.

Yet, in a "strange coincidence", Ellen Coccoma did not file or destroyed her time sheets, so that they are not available for my review on FOIL request, and a recent attorney for the same Professional Conduct Committee where Coccoma was a recent member, of the NYS Supreme Court Appellate Division 3rd Department Steven Zayas (along with the Chief Attorney Peter Torncello and third attorney) was caught and "resigned" for falsifying time sheets - which did not cause them to lose their law licenses, as it did not cause Christina Ryba, "special counsel" for that court's chief judge Karen Peters, to lose her law license after she was fired in November of 2015 for unethical conduct.

Do they teach how to engage in unethical conduct and escape without discipline in that 3rd Department Committee - or is it just the wife-of-a-judge pedigree that went to Coccoma's head?

I will follow up with FOIL requests and other actions to several public authorities about this extraordinary admission by the Otsego County that I squeezed out of Otsego County only at the threat of a lawsuit.

Stay tuned.










Enemies (critics) of the court are not entitled to the rule of law - NDNY and Janet DiFiore jointly strike against the Neronis

I wrote here that in November of 2014 the U.S. District Court for the Northern District of New York has imposed an anti-filing injunction on my husband Frederick J. Neroni for filing civil rights lawsuits with constitutional cases, based on five civil rights lawsuits, two of them still pending and counseled (by me) and without notification of counsel.

I blogged here about some circumstances of how that anti-filing injunction was imposed, by a court that stubbornly continues to preside over our cases despite its incestuous relationship with powerful attorneys involved in the other sides of my husband's and my own cases in that court.


Not that the NDNY court would be expected to know and/or apply the law, especially if it is in my husband's favor or my favor.

Enemies of the court are not entitled to the rule of law.

Nevertheless, at the time of the injunction, as I said above, there were two pending counseled cases - Neroni v Zayas, Case No. 3:13-cv-127-LEK-DEP and Neroni v Grannis, Case No. 3:11-cv-1485.

On November 13, 2015 my New York state law license was suspended, without a hearing, because of sanctions imposed by the now-retired Judge Carl Becker because:

1) in one case I asked Becker to recuse for bias, misconduct, multiple conflicts of interest and lack of legitimacy (he did not file a certificate of election as required by law at that time); some conflicts of interest were revealed long after the sanctions were imposed, in 2012 and later, and one conflict was revealed in January of 2016, after Becker was no longer a judge and after my suspension;

2) in the second case, I also asked Becker to recuse for bias, misconduct and conflict of interest (Becker's ex parte communication with a party's counsel is part of the transcript, Becker did not disclose that one of the parties is likely his close friend or girlfriend - that was revealed after sanctions were affirmed on appeal);



All three sanctions of Becker were rendered unconstitutional as a matter of law of June 18, 2015 by Reed v Town of Gilbert as content-based regulation done without application of strict scrutiny.

Yet, the Town of Gilbert decision did not prevent the Appellate Division 4th Department to suspend my law license on November 13, 2015 "for lack of remorse" as to unconstitutional sanctions imposed by Becker.  The suspension was without a public hearing that I requested, and was based entirely on Becker's sanctions rendered unconstitutional as of June of 2015 by Reed v Town of Gilbert.

The Town of Gilbert decision did not prevent the NDNY to take my federal law license "by rule of reciprocity", also without a hearing, on November 18, 2015.

NDNY continues to play games with whether I am or am not a licensed attorney, by the way. 

For example, in my husband's Neroni v Zayas case where he recently filed a motion to recuse and supplemental documents for the previously filed motion to vacate - filed by me before the suspension in October of 2015 - I am still listed, as of today, as my husband's "lead attorney", even though that court suspended me, and my husband already appeared in that case after my suspension pro se.

This is as of today.

By the way, I never registered a "Neroni Law Office" in South Carolina, this is the flight of imagination of the Northern District of New York.  I only had a mailing P.O. Box in my own name, since I lived there.



The Town of Gilbert decision did not prevent the New York State Court of Appeals, Janet DiFiore (as I've learnt only yesterday, through an order received by mail) to dismiss my constitutional appeal of my law license suspension "as of right" because "no substantial constitutional question was involved" on March 24, 2016

(see my blog about illegality of such "substantial-insubstantial" dichotomy of cases by the New York State Court of Appeals, based on a law review article and a dissent from a judge of that same court, published just 3 days ago on March 26, 2016, when, unbeknownst to me, Janet DiFiore's order tossing my appeal "as of right" on unlawful grounds was already made and was in the mail - it takes a long time to get mail from New York to South Carolina, so I am surprised I even got it in four days yesterday, usually it takes a week or more).

Apparently, violation of the 1st Amendment, clearly outlined in my disciplinary case, is not a "substantial constitutional question" for Janet DiFiore.

I will publish DiFiore's order of March 24, 2016, with a comment, in a separate blog.

Here I want to show how Northern District of New York used the anti-filing injunction - illegally, clumsily, stupidly, as is everything that NDNY is doing in our cases - to duck the issues raised in my husband's motion.

Here is what my husband received yesterday in the mail from the Northern District of New York:


But, Mr. Neroni did not file any motions for a LEAVE (permission of the court) to file anything in the "Case No. 3:13-cv-0127", that is Neroni v Zayas.

Mr. Neroni filed:

1) A supplemental Affirmation with exhibits, providing additional support to his earlier-filed Rule 60 motion (which the court acknowledges, is outside of the injunction).

The injunction, as the court concedes, "expressly did not affect" my husband's "rights in any of his currently pending cases", including the Neroni v Zayas case.


So, the supplemental Affirmation with Exhibits had to be accepted by the court.

2) Mr. Neroni's motion was for sanctions for frivolous conduct, to allow him e-filing, to allow him representation by an unlicensed individual (me), for substitution of parties, and to recuse the court.

The motion to recuse was essential for the fair determination of the pending Rule 60 motion, and thus is very much related to jurisdiction and fairness of the court in deciding the Rule 60 motion.

Since some Defendants retired or left the positions in which they were sued in their official capacity, replacement of Defendants was clearly related to determination of the Rule 60 motion.

And, an injunction imposed based on contents of Mr. Neroni's constitutional civil rights cases, has been invalidated by Reed v Town of Gilbert as of June 18, 2015 in the first place.

Not so in the NDNY.

If any law is favorable to Mr. Neroni or myself, it is not to be read.

So, all the motions that I enumerated above, that Mr. Neroni filed, were considered as if they were filed not as of right, but with a request for a leave (permission) to file - to the Chief Judge instead of judge Kahn who was assigned to the case - and such a "leave" was, of course, denied.

And, the supplemental affirmation to Rule 60 motion (that the court said was properly filed and was not within the injunction) also went into the stricken and blocked pile.

How appropriate.

What is also interesting is the timing of these two orders:

1) Mr. Neroni's motion to sanction DiFiore for frivolous conduct in his case was blocked without review on March 23, 2016;

2) DiFiore tossed my constitutional disciplinary appeal "as of right" as if it was discretionary on March 24, 2016, the next day after the motion for sanctions against her made by Mr. Neroni was conveniently blocked.

No retaliation.  No coincidence.

The "honorables" are in their usual glory.

So, when I still had a valid law license and sent a Rule 11 (sanctions) notification in Neroni v Zayas, on behalf of my client Mr. Neroni, to:

1) NYS Attorney General;
2) NYS Governor (DiFiore's friend);
3) NYS Chief Judge of the Court of Appeals (then Lippman),

the solution was easy - my law license was suspended before I could file the motion for sanctions.

When Mr. Neroni tried to pick up the torch from where I left it and carry it on his own, making the motion I was going to make when my law license was suspended - against the very government that suspended my license "as a preventive measure" - he was prevented from filing that motion on contrived grounds.

Now, Mr. Neroni has the blessing of having TWO district court judges (Glenn Suddaby and Lawrence Kahn) deciding his pending motion to vacate.

Kahn did not decide the motion yet, but Suddaby already tossed a supplemental part of it, with exhibits, as well as a motion requesting Kahn and Peebles not to decide any motions based on their misconduct and conflict of interest, and to transfer the case to another, neutral and non-conflicted court.

And, of course, when I indicated to NDNY, in a separate affirmation filed in support of Mr. Neroni's motion that, if my representation of Mr. Neroni, despite my lack of license, is permitted, I am willing, able and ready to prosecute the case further.

Court representation on a pending motion and of further possible pending motions to vacate is very definitely related to that same pending motion to vacate.

Not so - says NDNY to Mr. Neroni.

You cannot appear pro se in a pending case where we stripped you of counsel when your counsel was about to make a motion for sanctions against those who regulate law licenses of every single judge of the NDNY court (that fact was also mentioned in Mr. Neroni's motion to recuse).

So - the counsel was stripped of her law license on the verge of a deadline to make a motion.

The party in a case with a pending motion is not allowed to appear pro se.

His filings are transferred to another judge, filed in another case, under another case number - and then denied, because he did not ask for permission.  Permission to make a motion to recuse, so that an impartial judge would review the pending Rule 60 motion?

Permission to have court representation of one's choice?

Permission to e-file?

Permission to file a motion for sanctions?

Where did NDNY get all this brand new law?

Obviously, it was created on the spot, to deal with the "situation" - the irrefutable evidence provided by Mr. Neroni in the stricken pleadings required to apply the law in his favor and grant the motions.

NDNY could not create such a precedent, admitting to massive misconduct of federal and state public officials.

What is the alternative for Mr. Neroni?

It is not clear.

As of today, he is not allowed to appear pro se in a case where a legitimate motion is pending (that the pending Rule 60 motion is legitimate and not blocked by the anti-filing injunction, even the NDNY conceded), his counsel is suspended, even though listed as still his counsel, 



and he is not allowed to have a court representative of his choice, the court refuses to consider his motion on that subject.

When judges are guided by rage alone, decisions that make no sense from the point of view of applicable law, happen.

The decision to strike Mr. Neroni's legitimate pleadings because, even though the pleadings are not covered by the anti-filing injunction, and even though the injunction has become unconstitutional since June of 2015, the injunction was stretched to punish Mr. Neroni...

And the next day after NDNY issued that decision, blocking Mr. Neroni's motion for sanctions against Neroni v Zayas defendants, including NYS Court of Appeals Chief Judge Janet DiFiore, DiFiore strikes against me and denies my appeal as of right as if it is discretionary.

Please, don't tell me that there is no collusion between NDNY and New York State public officials sued in Neroni v Zayas to do what is done to me and my husband, our licenses and our lives.

To any reasonable person, the collusion between NDNY and Neroni v Zayas defendants is clear as day.


(it is not a usual occurrence where a Chief Judge of the court interferes with a case where another judge is assigned, Glenn Suddaby who tossed the supplemental affirmation to Rule 60 motion pending in Neroni v Zayas case and who said he reviewed the entire docket of Neroni v Zayas case, including the pending motion, is not assigned to that case - Judge Lawrence Kahn is).

It contains all the answers as to why Mr. Neroni receives a medieval treatment as of he is an outlaw.

 Criticism of judicial misconduct in this country is not allowed.  

And critics who violate this taboo (as unconstitutional as it is) are to be viciously punished, as enemies of the court to whom laws simply do not apply.

That's the new law.