It is in your best interests not to be able to sue that malicious and/or corrupt person who violated your constitutional rights - if that person is a judge

When I began this blog in March of 2014, I have announced that I am preparing some books for publication that I plan to come out in 2014-2015.  One of the books will be on the doctrine of judicial immunity, its legality and its impact on the American society, the economic principles of existence of a publicly funded court system, its efficiency and alternatives, and the necessity to undo the stronghold malicious and corrupt judiciary has on this country.

As a sneak preview, I provide some points from the book.  The book, of course, will contain citations to legal authorities, a bibliography and a detailed analysis of federal civil rights litigation, my own and other people's, showing how justice is stonewalled whenever judicial misconduct of any kind is involved, no matter how egregious constitutional violations were and how badly the victims were hurt.

The book will cover specific examples of how courts disregard the rules they create and the rules set by statutes and the U.S. Constitution in order to protect themselves from liability for malicious and corrupt acts on the bench.

I will argue in the book that there cannot be any legal, moral or constitutional basis for the doctrine of absolute judicial immunity for malicious and corrupt acts.

I will argue in the book that, maybe, the whole idea of dispute resolutions through courts has outlived itself due to the fact that it is a grossly inefficient use of public funds, especially in view of the fact that the majority of issues in state and federal courts are not resolved through trials, on the merits and thus the courts are no better than glorified mediators/arbitrators steering parties into settlements without resolution of issues for purposes of creating precedents in the law.

The book will be in English and in Russian and will be marketed globally, to raise global awareness around the world as to problems in the U.S. with undermining the fundamental democratic principle that any violation of human rights must have an effective remedy.

*     *     *

In 2009 the U.S. District Court for the Middle District of Pennsylvania, Judge A. Richard Caputo, has ruled in a partial decision on liability that, even though Judge Mark Ciavarella, Jr.  was immune for sentencing juveniles to detention, without advising them of their right to counsel or giving them counsel, failed to determine whether pleas of guilty were knowing or voluntary, and did that because he was paid to fill a private juvenile detention center, he was still absolutely immune from suit because what he did constituted "judicial acts".

To give judge Caputo justice which he denied to the victims of Judge Ciavarella, Jr., I must state that in January of 2014 Judge Caputo has ruled that Judge Ciavarella was not immune as to acts in furtherance of the same conspiracy which were not judicial acts.  Yet, in his 2009 decision Judge Caputo, in violation of his own south of office to uphold the U.S. Constitution as the Supreme law of the land, Judge Caputo perpetuated the dangerous tendency of courts to grant judicial immunity for malicious and corrupt acts of judges, based on extremely fuzzy and self-serving legal foundation.

I put the quote from Judge Caputo's 2009 decision granting judicial immunity to Judge Ciavarella, Jr. at the top of this blog, as it defines the disfunction, inefficiency and judicial misconduct permeating the judicial system of the United States, and issue that everybody knows about, but which has not been effectively dealt with because of the lobbying efforts of the judiciary and the power of the judiciary to create self-serving case law.

The entire house of judicial immunity is a sand castle waiting for one authoritative blow or pour to dissolve.  That blow or pour will not happen without public input.   I appeal to the public to apply to their legislative representatives to make the chimera of absolute judicial immunity for malicious and corrupt acts disappear. 

Absolute judicial immunity in the U.S. is based only and entirely on an assumption by the U.S. Supreme court that pre-existing common law principles of immunity (that came from England) are not abrogated by Congress if a statute is silent about those common law principles.

There are several flaws in such an assumption.

Supremacy of constitutional law and rules of statutory construction

U.S. Constitution is the Supreme law of the land and thus trumps inconsistent common law.

When a statute is silent on a certain issue, that issue must be construed according to the general goal of the statute.

The obvious goal of 42 U.S.C. 1983 resulting from its text is to create a private cause of action to give individuals a right to personally hold every person who violates their individual constitutional rights under the color of state law liable for money damages,  and that includes judges.

Statutes enforcing federal and constitutional law must be construed liberally and broadly, to further its legislative intent and purpose.

Any exceptions to such statutes must (1) be clearly defined by the legislature and (2) must be narrowly construed not to undermine the legislative purpose and intent.

That the U.S. Supreme Court suddenly scrapped its own rules of statutory construction to help out its own class, the judiciary, and the fact that judges throughout the country "faithfully" adhere to the principle unfaithfully created by the U.S. Supreme Court is one more example of self-serving intellectual dishonesty of the judiciary and its disdain to the rule of law when it concerns their personal interests.

Deviation from common law

English common law unquestioningly accepted by the U.S. Supreme Court as the basis of its assumption that it still applies to civil rights actions, even though the U.S. Congress did not say so and such language did not appear in the civil rights statute, 42 U.S.C. 1983, did not cover judicial immunity for malicious and corrupt acts, so granting it in reliance on pre-existing common law as an exception is wrong.

Common law gave immunity from suit only to judges of superior courts and courts of general jurisdiction.  In the U.S. the doctrine spread as a forest fire to cover judges of all courts and even of amdinistrative agencies, as well as non-judges that were deemed as "the arm of the court", something that did not exist under the common law which is the whole justification of the doctrine

Common law also had a doctrine of amercement/ liability of judges to those the judges injured, so if common law on the issue of judicial liability should be consulted, both the immunity and the amercement doctrines should be embraced. 

It is my firm belief that ignoring the amercement doctrine while expanding the immunity doctrine beyond the initial scope of its existence under English common law, but in reliance on English common law, is self-serving intellectual dishonesty of the judiciary for purposes of self-preservation and not for public interest.

Self-interest of the decision-makers

When judges decide that they are not immune because of common law principles that are not reflected in the statute, and rule that their identity and their motivation, even a malicious and corrupt motivation, does not even come within the judicial inquiry to decide their own fate and the fate of their class, the mere self-interest of such a decision casts suspicion of its validity.

The identity of the sovereign and inapplicability of 400 year old common law in a democratic society

In England the King was the sovereign, and superior court judges answered to the King.  There was no supremacy of the law over and above the King's will, and that's exactly why pilgrims ran to American and why this country declared independence from England, because of its lawless tyranny. 

Now that lawless tyranny is being revisited upon the American people through the doctrine of absolute judicial immunity for malicious and corrupt acts.

In the U.S. the People are the sovereign, the People established this county in accordance with the U.S. Constitution as the Supreme law of the land, and made all judges swear an oath of office to that U.S. Constitution, and not to a person or a governmental body.

There government is not the sovereign in the United States, the people are.

Courts, in applying the doctrine of judicial immunity, act as if the U.S. Supreme Court is the sovereign of the United States, and that the U.S. Supreme Court decisions prevail over the reasonable interpretation of the text of the U.S. Constitution.  Yet, the U.S. Supreme Court decisions are not part of the Supremacy Clause of the U.S. Constitution and may not constitute the law of the land.

Overbroad construction of jurisdiction for purposes of absolute judicial immunity

In New York, Judiciary Law 14 absolutely disqualifies a judge who has an interest in the outcome of litigation, and decisions by such a judge are void.

The law also disqualifies a judge from re-entering the case from which he recused, and decisions from such a "re-entered" judge are also void.

There are mandatory rules of disqualification existing in New York, and the public will believe that they are mandatory only if they are enforced as mandatory.

Yet, New York courts ruled, and federal courts agree, that the decision on recusal addressing a motion under a mandatory rule of disqualification, is somehow "discretionary", and can be made by the same judge whose misconduct, bias, appearance of impropriety or conflict of interest, are addressed in a motion to recuse, after the judge "searches his/her own conscience".

It is apparent that such an analysis is flawed from the very beginning because:


(1) it is not from the point of view of an objective reasonable observer, and


(2) because it is not transparent or subject to appellate review since it is not possible to clearly establish as a matter of law


          (a) what is conscience,


          (b) whether the particular judge has conscience, 


          (c) whether the particular judge did or did not search his or her conscience, 


          (d) what did the judge's conscience tell the judge, 


          (e) whether the judge truly followed his or her conscience in making the decision (if such a conscience even exists).

Under federal due process of law, a judge cannot preside over "his own case", or where he has a personal interest in the outcome of the case.

A personal interest exists when a judge has a personal vendetta against a litigant or his attorney.

A personal interest exists when a judge was bribed out of court to rule in a certain way in court, whether the bribe was by actual money, by promises of promotions, re-elections or after-retirement perks, or by offering to judges or his family members certain privileges that would not be available to them unless the judge rules in a certain way.

Whenever the rules of disqualification are mandatory, respectfully, they must strip the judge of authority to act, and if the judge acts contrary to those rules, he must suffer the consequences of his actions, as "any person" within the meaning of 42 U.S. C. 1983.

Federal courts should not be able to find jurisdiction in a judge who, by mandatory rules of disqualification, is not allowed to serve in a certain case.  

Yet, federal courts nevertheless find jurisdiction in the same circumstances because they do not reach the issue of absolute disqualification, are not concerned by the identity of the judge and by his corrupt or vindictive motivation, and are concerned only with two issues: (1) whether the court itself, as an entity, has subject matter jurisdiction and (2) whether the act complained of was, by its nature, a judicial act.

Such a broad construction of a what was supposed to be a narrow exception to application of an act of Congress enforcing the right to a private cause of action against violations of the U.S. Constitution by "any person acting under the color of state law", and especially an exception based on an assumption by the U.S. Supreme Court that the Congress couldn't have meant to abolish common law judicial immunity, even though amendment of a statute by interpretation is outside of the U.S. Supreme Court's authority, cannot be considered the current law of the land.

Since such construction proved to be extremely viable, efforts should be made to legislatively or through state Constitutions, abolish it.

Granting judicial immunity in the hopes that judges are prosecutable for misconduct in by disciplinary authorities and criminal courts could be deemed naïve if it did not come from judges who are personally interested in that doctrine they created to apply to themselves. 

Such disciplinary and criminal prosecutions happen once in a blue moon and the public has no power to appeal non-prosecutions, therefore, disciplinary and criminal proceedings cannot be construed as real and effective remedies against judicial misconduct, and especially against malicious and corrupt acts on the bench. 

The disciplinary process in the Ciavarella (Kids-for-Cash) case in Pennsylvania failed, and due to the fact that several attorneys were disbarred for complaining about judges, attorneys who knew about misconduct of the judge who was openly violating juveniles' rights in the courtroom as a matter of pattern and policy, were afraid to report such misconduct. 

Criminal charges were not brought even by the feds against these judges for selling kids for cash.  Charges were brought only to address the kickbacks, so to a certain degree, that process also failed the public.

The justification of judicial immunity of the necessity that the public should be perpetually duped into trust in the integrity of the judiciary to prevent public unrest to correct the situation is self-serving, unconstitutional and simply morally wrong

The above shows that the claim that the doctrine of absolute judicial immunity somehow protects independence of the judiciary and helps maintain public trust in the integrity of the judiciary is wrong on many levels.  A judge sworn to uphold the U.S. Constitution may not be independent of his oath.   There should be an effective mechanism for the victims of his breach of his oath of office to obtain a real remedy against the judge, especially if the mistake was malicious and corrupt.

Maintaining public faith in the integrity of the judiciary by granting judges immunity for malicious and corrupt acts is maintaining in the public unwarranted illusions in order to prevent legitimate public unrest and outrage in order to change the status quo and establish a truly constitutional system of dispute resolution, whether by courts or by a more advanced method.

It is nonsense to expect the public to presume integrity of any judge when any such judge is immune from civil liability for malicious and corrupt acts on the bench, because, given the culture of non-enforcement of disciplinary rules and criminal law against judges throughout the country, the public can expect any judge to commit exactly the type of misconduct from which he or she is made immune.    In other words, if criminal behavior is not punished, it will get worse, one should not be a wizard to understand that.

The factual non-existence of disciplinary and criminal prosecutions of judges whatever they do on the bench, and the vicious retaliation of the judiciary against whistleblowers of such misconduct show that availability of a private cause of action for money damages against judges is the only real remedy and real deterrent to malicious and corrupt acts of judges on the bench.

The issues of liability for judges whose mistakes are honest can be resolved in federal civil rights lawsuits not through immunity, but through motion practice after full discovery and addressed through liability insurance, as for any other professional providing professional services to the public.

English common law cannot and should not be uncritically transplanted to the U.S. soil, and the doctrine of absolute judicial immunity for malicious and corrupt acts is unconstitutional and should be legislatively abolished since it will not abolish itself in courts due to the self-interest of the judiciary to perpetuate and expand it

This country has been founded on a Declaration of Independence specifically because of lawlessness of English courts and the tyranny of immune English judges who answered only to the King as sovereign, all judges in the U.S. take their office by the oath of loyalty to the U.S. Constitution and not to a body of government.  Instead, all courts uniformly hold themselves loyal to a body of government, the U.S. Supreme court, and its decisions, whether they contradict the letter and/or spirit of the U.S. Constitution or not.

The U.S. Supreme Court derives its authority from the U.S. Constitution, and there is nothing in the U.S. Constitution allowing the U.S. supreme Court to change the Constitution or federal law, or to narrow jurisdiction of federal courts despite clear language of an act of Congress presupposing the broadest possible jurisdiction to prosecute constitutional violations and enforce the U.S. Constitution.  This usurpation of the power of Congress to narrow jurisdiction of federal courts is especially egregious when it is used by judiciary to protect its own class from liability.  




 

My trick question was answered by a federal court - if you are married to a judge, or are a retired judge, be assured that you'll get free legal representation at taxpayers' expense, even for your acts as a private attorney, be assured that the judiciary will save you and the law will be bent to help you

On May 16, 2014 I filed a federal lawsuit against several judges, including federal judge Gary L. Sharpe, inquiring (1) about the apparent ex parte investigation against me in his court at the time when I had pending cases in that court as an attorney, and cases on appeal from that court as a party;  (2) about potential participation of Judge Sharpe and other judges of that court in the secret-membership organization The American Inns of Court where judges appear to receive freebies from powerful attorneys behind closed doors and engage in communication with attorneys behind closed doors which fact, if established, will raise all kinds of disqualifying grounds. 


On May 21, 2014 I posted a blog about "trick questions" regarding free legal representation of politically connected private attorneys at taxpayers expense. 


On June 5, 2014 my husband received an answer to that question from Judge Gary L. Sharpe, and the decision floored me with its intellectual dishonesty, so I believed it is worth it to make that decision public and describe some points of that decision, mainly that Judge Sharpe has created a new assigned counsel class for rich, powerful and politically connected private parties.




Intellectual dishonesty of judges is a major problem in this country, has been for years and is not adequately addressed because of the power of the judges engaged in misconduct to deprive the most likely reporters of misconduct, attorneys, of their livelihood and reputation.  Non-reporting of judicial misconduct may and do have devastating consequences to the public, but reporters are stifled and persecuted, and thus, the overwhelming majority of attorneys prefer to err on the safe side and not report judicial misconduct.


Addressing this problem is a scary matter, since the very livelihood of any attorney lays in the hands of the very people (judges) whom the attorney is supposed to criticize - with predictable results.   


Yet, I feel it to be my duty as an attorney and as a citizen to continue exposing judicial misconduct that I am aware of, and I will continue to do that whether I keep my law license or not.


As I said above, on June 5, 2014 a new decision emerged concerning my husband where intellectual dishonesty of a judge is clearly at play.


I will later, time permitting, include here the full text of the decision, for people to judge as to its worth, now I will simply make some comments on it.  As a disclaimer, I did not represent my husband in these proceedings, he represented himself.


As a premise, let's remember that Judge Gary L. Sharpe who decided the case is a federal judge nominated by the President, confirmed by the U.S. Senate and sworn to protect the U.S. Constitution and federal law - for your sake, my co-citizens and co-taxpayers.


As another premise, let's remember that under the U.S. Constitution that Judge Gary L. Sharpe was sworn to protect the judge has no power to change federal (or state) statutes or the federal Constitution by interpretation - only to apply what is clearly there or reject the law as vague if it is not clear for judicial application.


As a third premise, let's remember that the law firm representing in the action Defendant judge Michael V. Coccoma, the retired judge Eugene E. Peckham and judge Coccoma's wife Ellen Coccoma, employed Judge Gary L. Sharpe's son.


As a fourth premise, let's remember that on May 16, 2014 a lawsuit was filed against Gary L. Sharpe in his individual capacity by me alleging, based on documentary evidence that the court where Gary L. Sharpe is the Chief Judge has engaged in an ex parte investigation of my personal, professional and political background.  Since the plaintiff in Neroni v. Coccoma, Frederick J. Neroni is my husband, investigation of my personal background necessarily involved the Plaintiff.


As a fifth premise, let's remember that Judge Sharpe has sanctioned both Mr. Neroni and myself in another case where only Mr. Neroni was a party and I represented him, after I specifically asked Judge Sharpe to step down because the New York State Attorney General's office appearing on behalf of defendants in that case, employed the judge's son Michael Sharpe.


As a sixth premise, let's remember that in the present case, Neroni v. Coccoma, Mr. Neroni made a motion to disqualify Judge Gary L. Sharpe not simply because he sanctioned Mr. Neroni in the past, but because he sanctioned him in an apparent retaliation, after Mr. Neroni pointed out to the judge that he is ruling in favor of his son's employer, without a disclosure to Mr. Neroni or his counsel that our opposing counsel is the judge's son's employer. 


Now as to the decision.


I will not provide here a full analysis of its flaws.  That is for Mr. Neroni to do if he decides to appeal the decision.


I will just touch upon some points of intellectual dishonesty of Judge Sharpe and his protection of Judge Coccoma, his wife Ellen Coccoma caught in misconduct, the retired judge Eugene Peckham caught in misconduct, and the Supreme Court justice Kevin Dowd who, according to allegations in Mr. Neroni's complaint citing to Judge Dowd's grossly inappropriate and outlandish remarks on record in a court proceeding, may be lacking mental capacity to preside over cases and who openly catered to Ellen Coccoma in a state court proceeding protecting her, as Judge Sharpe did, from discipline.


Judge Sharpe has narrowed the scope of 42 U.S. 1983 and dismissed the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm despite their obvious violations of plaintiff's constitutional rights under the color of state law, because they were not sued as "state actors".


For that contention, Judge Sharpe cites a "precedent" from the U.S. Court of Appeals for the 2nd Circuit: 

“In order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.2002).

Here is the  full text of the statute itself, 42 U.S.C. 1983:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia".

Thus, under the text of the statute, which controls over any inconsistent case law, the distinction between a "state actor" and a "private person acting under the color of state law" is not even meaningful or relevant for determination of validity of a 1983 claim.

Judge Sharpe was sworn to uphold the U.S. Constitution, not the precedents of the 2nd Circuit, and even not the precedents of the U.S. Supreme Court.  He is sworn to make his own independent determinations in interpreting federal law and the Constitution, and apparently he has sorely failed to do that, as the decision shows.

After Judge Sharpe's quotes the case where the 42 U.S.C. 1983 is bifurcated into "state actors", something that does not appear in the statute at all, and "private persons acting under the color of state law", which does not appear in the text of the statute either, Judge Sharpe concentrates on Ellen Coccoma not being a state actor, that Mr. Neroni failed to properly allege her conspiracy with state actors and dismisses the case against her on that irrelevant point.

Judge Sharpe offers several premises in order to dismiss the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm for their actions as private attorneys and law firms:

1/ private attorneys are not "state actors" for purposes of a 1983 action.  As the text of the statute shows, that is not a relevant point, because it is about "every person" who violate other people's constitutional rights under the color of state law.  There is a Supremacy Clause in the U.S. Constitution that Judge Sharpe was sworn to uphold, and that Supremacy Clause does not contain adhering to precedent that changes a statute through interpretation.  Yet, despite the complete irrelevance of this judge-created "distinction", the court spends a hefty paragraph, strewn with citations, proving that Ellen Coccoma was not a "state actor" when she acted as a private attorney (and yet she was represented pertaining to those actions not as a state actor, by New York State Attorney General's office, employer of Judge Sharpe's son, at taxpayer's expense - and that is ok to Judge Sharpe, see discussion of that point below).

Judge Sharpe then cites to other cases which state that:

2/ private attorneys do not act under the color of state law.  That is blatantly stated despite the allegations in the complaint, which at the stage of the motion to dismiss must be assumed as true, especially that they are based on state court records, that a private attorney Ellen Coccoma asked the court to use its power to compel a non-party Mr. Neroni into a deposition under the threat of criminal contempt of court, which is a violation of his due process and 4th Amendment rights, and when Ellen Coccoma did that when she has no authority to ask the court for anything because her client has died at that time, and her authority to represent him ceased, while she concealed the fact of her client's death and of her lack of authority when she was asking the court to compel such appearance by Mr. Neroni.   

Moreover, the case cited by Judge Sharpe, Dahlberg v. Becker, 748 F. 2d 85 (2nd Cir., 1984), amends 42 U.S.C. 1983 through judicial interpretation in a meaningful way, which is unconstitutional since judges do not have powers under Article III of the U.S. Constitution to amend federal statutes.  

Yet, even with that unlawful amendment, my husband's case is winning - but not in the eyes of Judge Sharpe.

By the way, there is a sad irony about Judge Sharpe's choice of a case to cite...  In Dahlberg v. Becker the defendant is the judge Becker I write about often in this blog (just word-search "judge becker" in the search window of this blog), who was sued multiple times for his shenanigans as a judge, the latest time on May 16, 2014.

Had Judge Becker been slapped with sanctions in 1984 in Dahlberg v. Becker, he could have thought more about what he is doing now, but alas...

Decisions of Judge Sharpe in this case also perpetuate and reinforce official misconduct of multiple public officials which, I bet, will get worse, encouraged by the sense that the law either does not apply to them or can be bent to save them.

In Dahlberg v. Becker the "under the color of state law" part of 42 U.S.C. 1983 is interpreted as sanction by the state to a private party to abuse the state law. 

First, nothing like that appears in the text of 42 U.S.C. 1983, it is a major amendment of a federal lawsuit by judicial interpretation for which a federal judge has no authority under Article III of the U.S. Constitution and the Supremacy Clause that any federal judge, including appellate judges, are sworn to uphold.

When an appellate court, or even a U.S. Supreme Court, issues a decision that exceeds its Article III powers, it is not a precedent mandatory to follow for any federal judge who has sworn separately, personally, individually, to the U.S. Senate and the American People that he will uphold the U.S. Constitution and federal law (statutes) as the law of the land, and not the incorrect interpretations of the same.

Yet, even if the judicially created "rule" in Dahlberg v. Becker were to be applied to Mr. Neroni's case, the state (Judges Lambert and Dowd) did allow Ellen Coccoma to abuse the state statute by ordering Mr. Neroni into a deposition under the threat of contempt of court.  Yet, these material details were omitted from Judge Sharpe's decision, apparently to make it easier to arrive at a pre-judged result.

In Judge Sharpe's eyes, Ellen Coccoma did not act under the color of state law.  Why?  I see the reasoning of the court winding down to a simple "because", because there is no sound grounds to "find" contrary to the facts in the record.

What I call "intellectual dishonesty" of Judge Sharpe is that Judge Sharpe "omits" material facts from his analysis:

(1) the fact that Ellen Coccoma lied to the court by concealing the death of her client for 6 months and by making a motion for a deposition at the time her client was already dead, Ellen Coccoma's authority to represent him stopped, and jurisdiction of the court stopped (abated), too;

(2) the fact that Eugene Peckham and his law firm lied to the court by omission by not disclosing to the court that Eugene Peckham, the previous judge on that same case, is now representing a party in Delaware County Supreme Court, and is doing it when he is also appointed a judicial hearing officer in that same court, which Eugene Peckham knew was contrary against rules of disqualification of judges and judicial hearing officers;

(3) on another issue, Judge Sharpe refused to recuse from Mr. Neroni's case claiming that merely imposing sanctions upon Mr. Neroni in the past does not provide enough grounds for a recusal.   The Judge omitted at that point that the sanctions were imposed after Mr. Neroni pointed out that Judge Sharpe decided the case in favor of a party represented by his son's employer and that the sanctions were imposed for everything that the employer asked for, including things that had nothing to do with Mr. Neroni at all.

If one reads Judge Sharpe's decision sanitized from those relevant and materials facts, Judge Sharpe appears to be right on his refusal to recuse.

Yet, when one reads the same decision with all the facts in, Judge Sharpe's decision appears to be simply catering for the high-ranking judges represented by his son's employer.  Same as in Neroni v. Becker earlier, Judge Sharpe flies by material facts in order to decide for NYS AG's office and not to sanction any state actors or private attorneys who are related to powerful state actors for apparent misconduct.

Judge Sharpe would rather create a very bad precedent, disenfranchise the voters of the State of New York by legislating from the bench and expanding a New York State statute by interpretation to allow legal representation at taxpayers' expense of a retired judge and a judge's wife, sued as private attorneys.

Now, had Judge Sharpe ruled against Ellen Coccoma, Eugene Peckham and their law firms on this issue, the law firms would have become subject to attorney discipline.

Judge Sharpe's decision protected these attorneys from discipline and allowed Ellen Coccoma and Eugene Peckham a free ride at taxpayers' expense - and gave future generations of relatives of judges sued in similar circumstances for free rides at taxpayers' expense, too.

It is interesting to mention how Judge Sharpe wiggles around to arrive at his decisions, sometimes making diametrically opposite rulings in one and the same decision. 

On the one hand,  Judge Sharpe points out that Ellen Coccoma is sued predominantly as a private attorney.  Yet, Judge Sharpe in the same breath authorizes representation of that private attorney, at the expense of New York State taxpayers by the New York State Attorney General.   

Yet,  NYS Public Officers Law 17 governing such representation says nothing of the kind.

I've written in this blog about the fact that Ellen Coccoma was denied representation at the expense of her insurance company.  Ellen Coccoma never would have applied to her insurance to provide an attorney to represent her in the first place, had she believed she was entitled to representation by the State of New York.

Ellen Coccoma applied for such a representation only when her insurance company turned her and her husband down, based on the contents of the allegations in the complaint which are not covered under the insurance policy, and under New York State policy that intentional acts may not be insured.

Now, Judge Sharpe, in an effort to save both Ellen Coccoma and Eugene Peckham,  who was equaly sued for his misconduct while being a private counsel (Eugene Peckham's law firm, without disclosure, represented a party in a case over which Eugene Peckham presided before retirement), and to let them obtain representation at taxpayers' expense, narrowed by interpretation the federal jurisdictional statute, 42 U.S.C. 1983 and expanded the state statute Public Officers Law 17 to allow free representation of private attorneys at the expense of the State of New York taxpayers.

Ellen Coccoma, wife of the 2nd-in-command administrative judge of the state, accepted the freebie that is not authorized by the clear text of Public Officers Law 17.

Eugene Peckham, a retired Surrogate's Court Judge and retired Acting Supreme Court justice, accepted the freebie that is not authorized by the clear text of Public Officers Law 17. 

A precedent is created where, if a conflict of interest between private action and action as a public official is alleged, the private actor gets to have a free representation by the State of New York - and that is at the time when over 80% of New York litigants cannot afford an attorney and when parties who accept such freebies are either members or former members of the judiciary or family members of judges.

And courts are talking about presumed integrity of judges and about attorney's alleged obligation to maintain the trust (belief, faith) in that integrity in the public?  Only after a lobotomy.

 

.

Women and minorities should work three times as much (or more)

In my youth I had a revealing experience.  I was studying at a night university, and during day time, I worked as a typist.  Since I became a typist after I became a pianist, typing at the speed of speech was easy for me.  Since I studied at a linguistic university, correcting the author's mistakes, spelling, grammatical and sometimes stylistic, was also not difficult - and garnered me respect of my boss.


Yet, there appeared a problem.


I studied at the evening department of the Moscow Linguistic University.  I had loads of homework.  A language is not something that can be faked, you either know the words and expressions or you don't.  There is no cutting corners in language studies, and anybody who tells you that you can learn in your sleep or in an ultra fast fashion... Well, I don't believe it. 


I worked during day time.  I spent nearly 3 hours in commute every day.  I had to study sometime during the day.  For that reason, I consulted the labor norms for my job (in the Soviet Russia there were such beasts actually) and verified that a typist must type 24 pages a day, and not more.


I typed 25 pages from 9 am  to noon and then opened my textbooks.


Some people in my department started to complain about me to my boss claiming that since I CAN do more per day, I MUST do more per day.  And since the second typist who worked with me can produce only 12 pages a day (!), she should not be pressured for more than that.  For the same salary.


I was lucky that my boss was (1) an intelligent man;  (2) I was the only one who could read his handwriting;  (3) I corrected his spelling mistakes.  For that reason, I could graduate from my night university since he allowed me to work my norm till noon, and then to study. 


When I graduated from the Linguistic University and started to work for a British company as a translator, my British boss, apparently without any bad feelings to anybody, as a joke actually, told me once - "you know about America, women and minorities should work three times as much".  I did not believe him.  Now I do.


Time and again, when I ask for an adjournment of an impossible deadline from a court, a different standard is used than when a male attorney (especially a male attorney working for the government) asks for an adjournment.


I have to pour my soul out to a judge, usually also a male, and I have to account for every hour in all days leading to the deadline, including weekends - and I still get an adjournment denied, and a man may quote simply that he has "other litigation" pending - and will get an adjournment for the asking.


That happened to me both in state and federal courts.


Sometimes I am simply flabbergasted by the callousness of judges who deny adjournments, even though it is clear that they are putting on me deadlines that are physically impossible to accomplish.  No male attorney-opponent was denied adjournments when he asked, and usually such adjournments were granted for the asking, and even if I objected. 


Any attorney is the voice of her client, and if she is not given adjournments when several courts impose the same deadlines on large motions which cannot be done at the same time, her clients necessarily suffer without any fault of hers, because there are 24 hours in a day and a single attorney, no matter how fast she formulates her ideas, how experienced she is on the subject of the motion, how well she researches and how fast she types, is still one solo attorney and simply cannot multiply hours in a day to do what courts sometimes impose. 


I don't believe judges who impose such deadlines do not understand what they are doing, because they do give adjournments freely to male attorneys, for the asking, and judges come to the bench after a minimum of 10 years experience as attorneys - that's a requirement in New York State.  I believe, the double standard in giving adjournments to male attorneys and not giving adjournments to a female, and a foreign-born female, is intentional - and the purpose is to teach that foreign woman who got into the "old boys' club job" - that the old boys still rule the game.


The purpose is also to set the female attorney up for failure - and then claim that she failed and she is incompetent.  I am lucky so far I was able to meet those deadlines anyway.  By working three times as much, or more.


When  I am exhausted, I blog - this way I relax.  When I blog at the end of the day, and a very full day, no matter how much I did that day, how many pleadings I filed that day, I get aggressive comments by opposing counsel that if I blog, I must have some forces left to do some more (even if I put in 14 hour working days every day) and I am not entitled to that adjournment that I am asking for.


When I hear that, I have a flashback right back to Soviet Russia - "if she CAN do more than an average worker, she MUST do more".  Do I, really?


I guess, my British boss was correct.  In America, at least women should work three times as much - and then some.

There is no "good faith" when a judge does not disclose her conflict of interest

Judge Cathryn M. Doyle, a Surrogate's Court Justice, has been removed by the New York State Commission for Judicial Conduct for presiding over cases where her friends appeared in front of her as attorneys and for failure to disclose her conflicts of interest.


In defense of herself, Judge Doyle claimed that she failed to disclose the conflicts of interest "mistakenly" and "in good faith".


Now, how can a person fail to disclose a conflict of interest "in good faith"?  Especially when that person is a judge of many years, and a lawyer of 35 years, admitted since 1979, according to the New York State attorney directory? I do not believe Judge Doyle could pretend she did not know the applicable rules of disqualification or at least of disclosure...


The value of disclosure is for other attorneys and parties to be able to weigh that information and apply for recusal of the judge. 


It was not for Judge Doyle to decide whether to disclose a conflict of interest or not, such a disclosure is mandatory. 


By not disclosing her conflicts of interest, Judge Doyle undermined people's trust in the integrity of the judiciary and does not belong on the bench.


Judge Doyle, as every other judge presiding over people's lives and fates, should be squeaky clean in her performance.  Anything less than that is unacceptable.


I believe that the NYS Commission for Judicial Conduct did the right thing (for a change) by removing judge Doyle. 


NYS Commission should be consistent in its actions, though, and apply the same standard of removal to all judges who fail to disclose their conflicts of interest.


In 2014 Judge Doyle was removed for presiding over cases of (1) her friend, (2) her personal attorney, (3) her former attorney .


In 2013 Judge George was removed for presiding over cases of friends.


Judge Carl F. Becker, the Acting Supreme Court justice of the Delaware County Supreme Court remains on the bench, even though he openly presided over the case of a close friend and failed to disclose his multiple conflicts of interest in multiple cases in that court and in other courts, and he openly presided over the case where his personal attorney was in front of him - and granted the victory to that attorney. 


Why should Judge Becker be given a special treatment by the Commission? He knows somebody who protects him?




And Judge Becker does not even use "good faith" excuses, he arrogantly acts as if the courtroom is his own fiefdom - his and his friends'.

I wonder if a married woman in the state of New York has a separate identity from her husband. It appears that according to Delaware County Supreme Court judge Carl F. Becker, NYS Attorney General and the 2nd Circuit Appellate Court, she doesn't. No matter which Neroni is punished - I do not care, revisited

On May 25, 2014 I have published a blog post indicating that for the Acting Delaware County Supreme Court Justice Carl F. Becker it does not matter which of the Neronis to punish, myself or my husband, and that we were punished by this judge for each other's alleged acts or omissions.

On May 27th and 29th, 2014 several more public officials made assertions indicating that for them, I do not have a separate identity or separate rights from my husband and that whatever my husband does must be visited upon me.

On May 27, 2014, in a federal civil rights action, Neroni v. Zayas where only my husband is the Plaintiff and where I only represent my husband as a civil rights attorney, the New York State Attorney General and the Delaware County Attorney concurred that my own disciplinary case removed to the federal court and made public only after I filed the Neroni v. Zayas action is "related" to my husband's civil rights action against the Professional Conduct Committee and the Appellate Division Third Judicial Department.

To me, it means an admission that I am being prosecuted in the disciplinary case because I sued the Committee and the court on behalf of my husband, and was so far successful in the lawsuit.

On May 29, 2014 in the DEC case I wrote about on May 25, 2014, I requested an adjournment based on the filing of a new federal civil rights lawsuit.

The New York State Attorney General, his assistant Andrew B. Ayers, Esq., opposed the request while claiming that "[o]ver the course of five years of litigation, the Neronis have avoided complying with the Department's order requiring them to restore the protected trout stream on their property.  They should not be permitted any further delay".

Andrew B. Ayers, thus, indicated that he considers that the DEC order was directed at my husband as well as at me, same as Judge Becker did in his sanctions imposed upon me in an unrelated action (Shields v. Carbone) where Judge Becker also engaged in an ex parte communication with Delaware County Attorney and concealed his close friendship with the Plaintiff Beverly Shields.

Yet, the DEC Commissioner's order that Mr. Ayers is talking about had nothing to do with me, and over the "5 years of litigation" Mr. Ayers were supposed to be able to read and know his record, instead of publishing books and advertise his clerkship with the now U.S. Supreme Court Justice Sonya Sotomayorm, while claiming to the court that it is the "evil Neronis" who allegedly prevented Mr. Ayers from meeting his deadlines in litigation and not his own publication schedule which was supposed to be done in his free time, if any.

It remains to be explored whether Mr. Ayers prepared, published and marketed his book on taxpayer-paid time while neglecting his cases, and while being paid by taxpayers (including by my taxes).  


I doubt though that anybody at any time will explore that issue because - guess what - NYS Attorney General's office/ Andrew Ayers represents the Commmittee for Professional Conduct and Andrew Ayers represents the Appellate Court which is in charge of attorney licensing, so who in their right mind will prosecute and discipline their own attorney?  I did turn Andrew B. Ayers into the Committee, for lack of other tribunal, not tainted by conflict, they predictably tossed the complaint without investigation and without seeking appointment of a special investigator or prosecutor, in view of the fact that I asked to investigate and prosecute their own counsel.  The rule of law in its bloom and glory in the state of New York...

On the same date as Andrew B. Ayers stated to the court that I did not comply with the DEC order that had nothing to do with me, May 29, 2014, the 2nd Circuit Appellate Court ruled that the appeal in a case Neroni v. Becker, where the Appellant was only my husband and where the appeal was prosecuted by my husband on his own behalf (meaning that I had nothing to do with the appeal, either as an attorney or party), was about "the Neronis", plural, indicating that my ghost is present in and my rights are affected by whatever my husband is doing whether I am part of it or not.

It appears that for the collective mind of multiple public official in New York executive and judiciary branch and even in the federal appellate courts, I have no separate identity from my husband, any orders directed only at my husband are affecting me, too, and I have no separate rights or separate voice from my husband.

When I immigrated to the United States in 1999 I did not know that this country held such caveman views of women's rights.

Due process of law, anyone?

Rights of a separate identity for married women in the U.S., anyone?

Oh, and I forgot that in this country the precedent is still on the books of the U.S. Supreme Court, not overruled, where the U.S. Surpeme Court, in its infinite wisdom, has ruled that married women may not engage in the practice of law, because nothing such a woman does can be binding without consent of her husband, and that denial of a law license to a woman because she is married is not unconstitutional.


The U.S. Supreme Court elaborated in Bradwell v Illinois, 83 U.S. 130 (1872) that the U.S. Supreme Court must adhere to the common law of England, that the statute based on which Mrs. Bradwell was denied a law license despite her qualifications was passed at the time common law of England was adopted in the United States, that in England female attorneys were unknown, and, therefore, there should not be any reason to believe that they should be known in the U.S.


Thus, the U.S. Supreme Court, when asked a question whether admitting women to the bar is constitutional or not, relied in answering the question not upon the U.S. Constitution, but upon the common law of England from which the U.S. declared independence specifically because of its lawlessness and tyranny. 


This precedent is still on the books, was not overruled and, as federal courts claim about non-overruled U.S. Supreme Court decisions, constitutes mandatory precedent for the entire country and mandatory interpretation of women's rights in America.


My rights included.


And it appears to me that the aforementioned public officials were following the spirit if not letter of this decision in lumping me together with my husband and denying me separate identity and separate rights.



The rule of law, anyone?

How federal appellate courts unilaterally and without authority transformed themselves into arbitration panels

When a person files a lawsuit, it usually means that the alternative means of dispute resolution did not work.

Litigation is not a fun activity.   It is stressful,  costly and time-consuming.

Yet,  when a person files a lawsuit,  a person expects from the judiciary diligent review of his or her case on equal grounds with other litigants.

That is called "equal justice for all" and is guaranteed by the Equal protection Clause of the 14th Amendment of the US Constitution which every judge in the United States takes an oath to uphold as a condition of taking that judicial office.

Yet, an interesting metamorphosis happens to the judges' readiness to uphold the concept of equal justice for all when a judge is faced with increasing caseloads.

Now,  let's agree on some common premises.

Population of the United States increases.

The number of court cases increases.

The number of federal judges did not increase in proportion with the increase of cases filed and litigated.

There is a physiological limit as to human attention span and ability of any human for intense intellectual work per day.Federal judges are usually advanced in years, which makes their ability for strenuous intellectual work and speedy, efficient and diligent resolution of court cases suspect, no matter how many clerks they employ.
Reports constantly appear that the rule that federal judges serve while on good behavior simply does not work, because it does not cover aging and aging-specific health problems.  Senility among federal judges is a growing concern.  Some federal judges serve into their 80s and even 90s.  Senior judges handle 15% of the caseload of federal courts.

Does all of the above justify unilateral classification of cases by judges into the "worthy" track where full review and analysis is conducted and full opinions are issued and punished and the "unworthy" track where a less-than-diligent review of cases is warranted, according to judges' absolute discretion?

Not if the constitutional concept of access to courts,  due process of law,  equal prison of law and for fair, competent and impartial judicial review is followed.

If there is the same number of judges for increasing number of cases,  the concept of equal protection of law means simply that it will take longer for any given case to be reviewed,  not that the judge is somehow allowed to cut corners and provide a less than diligent review because he is so busy.

Yet, cutting corners is exactly what federal appellate courts are doing by designating over 80% of appellate cases (according to research of Erica S. Weisgerber, footnote 7 p. 624 and accompanying text), without notifying appellants or giving them an opportunity to object before it is too late, for a less than diligent review and production of the so-caller "unpublished opinions" where the courts hardly provide any explanations for their decisions,  finally snaping appellants' lives and practically tarot 80% of appeals as a total waste of time and money,  all in the name of the claimed judicial efficiency, meaning expediency that sacrifices diligence or fairness.

It is appalling that, without notice or opportunity to be heard,  for the courts' own convenience,  over 80% of appellants in federal appellate courts ate denied diligent appellate review,  while the remaining 20% or less of appellants are given such review,  for unlearn reasons,  based on the judges' sole and absolute discretion which is practically unreviewable by any other court.

When federal appellate courts refuse to explain over 80% of their decisions,  they are no different from arbitration.   Yet,  arbitration is not what the appella ts who are denied proper review chose.

The difference between the court of law and arbitration is that,  while arbitration is also binding,  the arbitrator is not required to cite the law or provide his or her analysis or reasoning for the decision. That is exactly what federal appellate courts are doing with their "unpublished opinions".

Yet, arbitration is voluntary, and if litigants chose judicial review in federal courts as of right,  they cannot be forced into an arbitration or arbitration-like review without their knowledge or consent, which is what is happening now in federal appellate courts.

My legal opinion is that such a practice is unconstitutional and invalidates federal appellate courts as entities, where such courts, for their own convenience' sake, unilaterally, voluntarily and without authority started to act as arbitrators and not courts in the overwhelming majority of cases.