"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.

Monday, August 29, 2016

The New York State Appellate Division Third Department changed the wording - but not the essence - of attorney regulation after my husband's lawsuit

I was doing research for another blog and - as it often happens - bumped in yet another story of "interesting actions" of New York State Appellate Division Third Department trying to obscure the illegal nature of attorney disciplinary proceedings in that court.

In 2013, my husband Frederick J. Neroni brought a lawsuit against the clerk of that court Robert D. Mayberger, because of description of Clerk Mayberger's duties posted on the court's website.

The complaint is just 6 pages.

Mr. Neroni stated indisputable facts:


It's a classic accuser-judge conflict.

If the court "oversees" - not adjudicates, but "oversees" attorney discipline, that dubious word may reasonablmeans "handles prosecution".

And because of that, the court became an advocate for the prosecution, which Mr. Neroni expressed this way:

Quite a logical conclusion, isn't it?


And - what did Mr. Neroni ask?  Money damages?


Just to rule as a matter of law (for a declaratory judgment) and to stop enforcement of his order of disbarment created on the basis of such a conflict of interest.

On June 11, 2014, on an ex parte application of the defendant in this action, the Professional Conduct Committee of the 3rd Department (COPS), and without notice to Mr. Neroni, Mr. Neroni's case was transferred to the 4th Department.

The order was signed by the same Clerk Mayberger:

The "pending inquiries and/or complaints" would include a request by Mr. Neroni that the federal court would enjoin enforcement of his order of disbarment by the 3rd Department Committee, right?

Because the 3rd Department Committee recused from handling any disciplinary cases dealing with Mr. Neroni on June 11, 2014 - as signed by Clerk Mayberger, overseer of the Committee, who nevertheless signed a court order on behalf of the court.

The recusal was not only of the Professional Conduct Committee, but also by the court.

By the way, while recusing from Mr. Neroni's and my own disciplinary case, the court did not recuse from other cases where we were parties, and without fail ruled against us in several cases after the recusal.

Yet, even though it was not COPS, but the 4th Department Committee that had to be substituted into the action as of June 11, 2014, changing issues in the case, the recused COPS and the recused court continued to prosecute its motion to dismiss in Neroni v Mayberger after recusal.

Here are portions of the docket in Neroni v Mayberger:

So, on April 30, 2014 Mr. Neroni files his "irrelevant response" to the motion.

On May 6, 2014, COPS/3rd Department Court/Mayberger file a Reply to Response, continuing to assert their motion to dismiss Mr. Neroni's lawsuit:

Then, on June 11, 2014, Mayberger signs this order:

but does notify the federal court that COPS are no longer handling Mr. Neroni's cases.

At that point, all three Defendants voluntarily - and secretly - because the application for this order was never served upon Mr. Neroni - removed themselves from authority to do anything on Mr. Neroni's disciplinary case.

So, as of June 11, 2014 all three defendants were no longer parties in that federal lawsuit.

Moreover, the court was no longer the right court, because the 4th Department, where Mr. Neroni's case was transferred, was in the Western District of New York, and not in the Northern District.

Yet, the defendants did not notify the court, the now-illegal motion to dismiss in the now incorrect court proceeded, and in March of 2015 the wrong court, the U.S. District Court for the Northern District of New York, issued a dismissal of the action, about a year after ceasing to be a party in that action.

But wait - the saga is not over yet.

After the dismissal of the case as lacking merit, the court CHANGED the wording describing the job duties of its Clerk Robert D. Mayberger:

Here is the description of those duties in 2013:

The job description of the court clerk - which triggered a lawsuit of Mr. Neroni - claims that "As Clerk, [Robert D. Mayberger] oversees the daily operations of the Court and its auxiliary agencies, including the admission of attorneys and attorney discipline.  He is responsible for supervising and managing all Court functions including motions, appeals, budget preparation, personnel, finance, security, and all other areas of the Court's administration".

So, Mayberger "oversees the daily operations of the Court" including "admission of attorneys" - as daily operation of the court and "attorney discipline" - also as daily operation of the court.

Mayberger, as clerk, signs orders of suspension and disbarment - and at the same time oversees personnel of the prosecuting agency.

Sweet, isn't it?

A lawsuit targeting that language was dismissed as - of course, coming from a Neroni - without merit.

And look what the court NOW posts as Clerk Mayberger's duties.   Let's put those descriptions side by side.

So - that Mayberger supervises "attorney admissions" and "attorney discipline" as "daily operations of the court" is now missing from his official court biography and description of his duties.

The section describing who he worked for, is expanded and specified.

And, as a very relevant information to litigants in that court, it was added that Mr. Mayberger obtained awards, in 2011 and 2012 (missing from his above 2013 description) - as a photographer of horse racing.

The question is - does Clerk Mayberger NOT HAVE those duties that were announced in his job description in 2013, overseeing attorney discipline and attorney admissions, or are those duties simply removed from sight, because of that "meritless" lawsuit of that bad person Mr. Neroni?

By the way, in June of 2016, through the case Williams v Pennsylvania, the U.S. Supreme Court agreed with Mr. Neroni's "meritless" position in Neroni v Mayberger and struck, exactly on due process grounds, a judicial decision where the judge was both the accuser (only part of the prosecuting office, not the actual prosecutor) and the adjudicator, holding that:

But wait - wasn't it what Mr. Neroni said in his lawsuit against Clerk Mayberger?

So, let's see if anything will be happening in this case now that it is revived by the U.S. Supreme Court's decision in Williams v Pennsylvania.

I will follow this case with great interest, and will continue to report on it.

Stay tuned.

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