Licensing is normally an executive function.
Yet, it is claimed to be judicial function in attorney licensing because the Legislature delegated this executive power to courts.
I claimed that the Legislature did not have the power to delegate what it did not have (the executive power) to courts - but the claim was rejected by federal court under the Younger abstention, thus dumping it to state court, and the state court rejected the same claim without any explanation.
Recently, a federal district court applied absolute judicial immunity to a pistol licensing officer because he is a judge in the particular county in the State of New York out of which the case originated, even though in other counties of the State of New York the very same pistol licensing is handled by police officers who are not judges and are not attorneys.
The judiciary covered itself by the absolute judicial immunity, even for malicious and corrupt acts, without regard that such an immunity from constitutional violations (violations of oath of office) is not and may not be authorized by the U.S. Constitution.
Yet, the judiciary pretended that the rule of absolute judicial immunity is not absolutely arbitrary and has its limitations, that it applies only to "judicial acts" of a judge acting within jurisdiction of the court.
At the same time, courts routinely continuing to expand judicial immunity long beyond its breaking point.
As an example, judges disqualified by conflicts of interest, bias and financial interests are still immune (in federal courts' eyes).
And, as the Judiciary Law 90 and the recent decision by the Northern District of New York on the 2nd Amendment shows, when a certain administrative function is performed by a judge, it is assumed that the function has changed its nature from executive to judicial, and all of that to keep judges absolutely immune from liability, no matter what they do, to preserve absolute power in the judiciary and to preserve judiciary's ability to wreak absolute fear in such power.
Whatever you call such a government, it may not be called a democracy.
Wednesday, October 8, 2014
The illusion that the U.S. Constitution is alive and working
"Do you think you would like living in a country where the ruler or his minions could declare what the law was, change it at will, and decide whether someone was guilty of a violation?
Certainly not. People risk their lives to escape from such places, North Korea and Cuba, for instance."
This is how George Leef, a J.D.-holding contributor of Forbes.com started his new blog post about delegation of powers pertaining to the U.S. Constitution.
My experience as an attorney shows though that courts in the United States, both on state and federal levels, have become the powers that do exactly what people are running from:
(1) declare what the law is;
(2) change it at will; and
(3) decide that you are guilty of the violation - all in one shot, without any notice or opportunity to be heard, without any jury trial
The way courts manipulate the so-called rules of frivolous conduct against attorneys who criticize the judiciary in order to eliminate livelihood of such attorneys is one example as to how that occurs:
(1) the court sets a rule which is grossly vague and overbroad;
(2) the court then applies it in a grossly arbitrary and capricious manner, failing to apply it where clear fraud is committed by attorneys who are connected to the government by blood or marriage, work or friendship/association and instead applying it to lawful actions of attorneys who criticize judicial and other official misconduct;
(3) sanctions for frivolous conduct are considered "just financial sanctions" and often an attorney or party is not even given a hearing before sanctions are imposed;
(4) yet, sanctions can then be the only basis of the disciplinary proceedings (as it happened in my case) in order to try to deprive an attorney-critic of her reputation and livelihood, while attorneys associated with the government can go on committing open fraud and nobody will touch them.
If the public thinks that it is "only" about attorneys, and, since practicing attorneys are not respected by the public and are the constant subject of "lawyer jokes", the plight of even honest attorneys who try to zealously represent their clients and correct the system does not seem to interest the public.
Yet, when attorney independence, independence of a knowledgeable, eloquent and fearless advocate for the public, is removed, public access to court and the right to fair trial is essentially removed.
And that puts us on the same board as tyrannies which we claim we are not.
Moreover, attorney disciplinary cases are only an example.
The courts have long usurped executive (licensing) power as pertain to licensing attorneys, the court's most knowledgeable, eloquent, powerful and persuasive critics.
Yet, increasingly, the courts continue to usurp legislative power that is, in all states and on the federal level, belongs only to elected legislative representatives, not judicial representatives.
The legislatures fail to address this separation of power problem for a very simple reason - state and federal Legislatures are full of lawyers whose reputation and livelihood, when their legislative terms in office ends, is in the hands of the judiciary.
A lot of high-ranking executive officers are also lawyers, whose reputation and livelihood at the end of their appointment to executive offices, is also in the hands of the judiciary.
There goes independence of both the legislative and executive powers, on state and federal levels.
There go the famous "checks and balances" between branches of the government.
There goes the rule of law, and there goes the United States Constitution which every single public official in the United States and at the state level are sworn to uphold (often knowing that he or she will start break that oath, with impunity, the moment he or she pronounces it).
It is for the reason that regulation of attorneys by the judiciary is ruining the American democracy that I strongly advocate to take attorney regulation out of the hands of the judiciary.
Certainly not. People risk their lives to escape from such places, North Korea and Cuba, for instance."
This is how George Leef, a J.D.-holding contributor of Forbes.com started his new blog post about delegation of powers pertaining to the U.S. Constitution.
My experience as an attorney shows though that courts in the United States, both on state and federal levels, have become the powers that do exactly what people are running from:
(1) declare what the law is;
(2) change it at will; and
(3) decide that you are guilty of the violation - all in one shot, without any notice or opportunity to be heard, without any jury trial
The way courts manipulate the so-called rules of frivolous conduct against attorneys who criticize the judiciary in order to eliminate livelihood of such attorneys is one example as to how that occurs:
(1) the court sets a rule which is grossly vague and overbroad;
(2) the court then applies it in a grossly arbitrary and capricious manner, failing to apply it where clear fraud is committed by attorneys who are connected to the government by blood or marriage, work or friendship/association and instead applying it to lawful actions of attorneys who criticize judicial and other official misconduct;
(3) sanctions for frivolous conduct are considered "just financial sanctions" and often an attorney or party is not even given a hearing before sanctions are imposed;
(4) yet, sanctions can then be the only basis of the disciplinary proceedings (as it happened in my case) in order to try to deprive an attorney-critic of her reputation and livelihood, while attorneys associated with the government can go on committing open fraud and nobody will touch them.
If the public thinks that it is "only" about attorneys, and, since practicing attorneys are not respected by the public and are the constant subject of "lawyer jokes", the plight of even honest attorneys who try to zealously represent their clients and correct the system does not seem to interest the public.
Yet, when attorney independence, independence of a knowledgeable, eloquent and fearless advocate for the public, is removed, public access to court and the right to fair trial is essentially removed.
And that puts us on the same board as tyrannies which we claim we are not.
Moreover, attorney disciplinary cases are only an example.
The courts have long usurped executive (licensing) power as pertain to licensing attorneys, the court's most knowledgeable, eloquent, powerful and persuasive critics.
Yet, increasingly, the courts continue to usurp legislative power that is, in all states and on the federal level, belongs only to elected legislative representatives, not judicial representatives.
The legislatures fail to address this separation of power problem for a very simple reason - state and federal Legislatures are full of lawyers whose reputation and livelihood, when their legislative terms in office ends, is in the hands of the judiciary.
A lot of high-ranking executive officers are also lawyers, whose reputation and livelihood at the end of their appointment to executive offices, is also in the hands of the judiciary.
There goes independence of both the legislative and executive powers, on state and federal levels.
There go the famous "checks and balances" between branches of the government.
There goes the rule of law, and there goes the United States Constitution which every single public official in the United States and at the state level are sworn to uphold (often knowing that he or she will start break that oath, with impunity, the moment he or she pronounces it).
It is for the reason that regulation of attorneys by the judiciary is ruining the American democracy that I strongly advocate to take attorney regulation out of the hands of the judiciary.
The judiciary protects itself vigorously by attempting to force a New York attorney, not a member of the federal appellate bar, to get admitted to an appellate bar in order to be allowed to prosecute her PRO SE appeal
The bar is supposed to be a voluntary association.
Yet, in New York, one cannot leave the allegedly voluntary association, if disciplinary charges are brought against the attorney, no matter how fraudulent or unconstitutional are the charges, unless one acknowledges that the charges are true and agrees to a disbarment.
The 2nd Circuit Court of Appeals invented an even better way to harass attorneys who are NOT admitted to the 2nd Circuit bar - forced admission to the bar.
I am NOT a member of the 2nd Circuit bar.
I have NO INTENTION of becoming a member of the 2nd Circuit bar.
Each time I file a federal appeal PRO SE in a 2nd Circuit bar, I get a call from the 2nd Circuit clerk's office trying to persuade me that I must apply for admission to the 2nd Circuit bar because "those are the rules of the 2nd Circuit".
A pro se party is just that - a pro se party. Representation of YOURSELF is not practicing law.
Yet, in the 2nd Circuit, if you are an attorney in state court or in the lower district court, you apparently must get admitted to PRACTICE LAW in the appellate court in order to REPRESENT YOURSELF in that court.
Does it make sense?
No, it does not?
Does it violate the 1st Amendment, access to courts?
Most definitely.
Does the rule requiring pro se parties who are attorneys IN OTHER COURTS to get admitted into the 2nd Circuit bar IN ORDER TO BE ABLE TO REPRESENT THEMSELVES ON AN "AS OF RIGHT" PRO SE APPEAL remain on the books?
Yes, it does.
How come that in the 2nd Circuit pro se representation became practice of law? Does anybody in the 2nd Circuit read the U.S. Constitution that every single judge of this court is sworn to protect?
And, coincidentally, the lawsuit that the 2nd Circuit is trying to dismiss because I, a pro se appellant, did not get admitted to the bar in order to practice law, has wide implications for the work of the judiciary system OF THIS ENTIRE COUNTRY.
It seeks information of judge's back-room associations in secret-membership organizations, and information as to judges obtaining financial perks from influential attorneys and engaging, potentially, in ex parte communications with influential attorneys through organizations of the type of the American Inns of Court - asserting that NO COURT DECISION made in the United States since the American Inns of Court came into existence can presumed to be valid because of the relationships between judges and attorneys in these organizations.
Isn't it too much of a coincidence that (1) the defendant district court dismissed the case before it was served; and now (2) the appellate court (where each of its judges will be affected by their own decision) is trying to harass me into getting admitted to the bar in order to represent myself on this appeal?
By the way, there is no such thing as an automatic admission to the 2nd Circuit bar, one needs a recommendation from members of the bar, disclosure of personal information, paying additional money - doing all of the things that other pro se appellants are not required to do.
Why? Because the appellate court feels threatened that it will actually have to decide the appeal that can undo the way the judiciary receives its back-door financial perks?
Yet, in New York, one cannot leave the allegedly voluntary association, if disciplinary charges are brought against the attorney, no matter how fraudulent or unconstitutional are the charges, unless one acknowledges that the charges are true and agrees to a disbarment.
The 2nd Circuit Court of Appeals invented an even better way to harass attorneys who are NOT admitted to the 2nd Circuit bar - forced admission to the bar.
I am NOT a member of the 2nd Circuit bar.
I have NO INTENTION of becoming a member of the 2nd Circuit bar.
Each time I file a federal appeal PRO SE in a 2nd Circuit bar, I get a call from the 2nd Circuit clerk's office trying to persuade me that I must apply for admission to the 2nd Circuit bar because "those are the rules of the 2nd Circuit".
A pro se party is just that - a pro se party. Representation of YOURSELF is not practicing law.
Yet, in the 2nd Circuit, if you are an attorney in state court or in the lower district court, you apparently must get admitted to PRACTICE LAW in the appellate court in order to REPRESENT YOURSELF in that court.
Does it make sense?
No, it does not?
Does it violate the 1st Amendment, access to courts?
Most definitely.
Does the rule requiring pro se parties who are attorneys IN OTHER COURTS to get admitted into the 2nd Circuit bar IN ORDER TO BE ABLE TO REPRESENT THEMSELVES ON AN "AS OF RIGHT" PRO SE APPEAL remain on the books?
Yes, it does.
How come that in the 2nd Circuit pro se representation became practice of law? Does anybody in the 2nd Circuit read the U.S. Constitution that every single judge of this court is sworn to protect?
And, coincidentally, the lawsuit that the 2nd Circuit is trying to dismiss because I, a pro se appellant, did not get admitted to the bar in order to practice law, has wide implications for the work of the judiciary system OF THIS ENTIRE COUNTRY.
It seeks information of judge's back-room associations in secret-membership organizations, and information as to judges obtaining financial perks from influential attorneys and engaging, potentially, in ex parte communications with influential attorneys through organizations of the type of the American Inns of Court - asserting that NO COURT DECISION made in the United States since the American Inns of Court came into existence can presumed to be valid because of the relationships between judges and attorneys in these organizations.
Isn't it too much of a coincidence that (1) the defendant district court dismissed the case before it was served; and now (2) the appellate court (where each of its judges will be affected by their own decision) is trying to harass me into getting admitted to the bar in order to represent myself on this appeal?
By the way, there is no such thing as an automatic admission to the 2nd Circuit bar, one needs a recommendation from members of the bar, disclosure of personal information, paying additional money - doing all of the things that other pro se appellants are not required to do.
Why? Because the appellate court feels threatened that it will actually have to decide the appeal that can undo the way the judiciary receives its back-door financial perks?
The Younger abstention, attorney disciplinary proceedings and fraud committed by the government
When a disciplinary proceeding was commenced against me based on (1) two fraudulent charges and (2) three sanctions of a judge I sued before he started imposing sanctions on me, and in view of a history with the disciplinary court where the court refused to apply the law and ignored facts in the record on appeal in cases involving me or my husband, I removed my disciplinary case to a federal court.
I did it under a federal removal statute 28 USC 1443 and added a 1983 action to the removed disciplinary proceedings.
My disciplinary proceeding was remanded because I am white - I am not joking. The federal court "read" the removal statute, 28 USC 1443, as requiring the denial of equal protection to be on the grounds of racial discrimination, even though there is not a single word about it in the text of the statute, and federal courts have no authority to change federal statutes by interpretation.
The court also dismissed my 1983 action on the so-called "Younger abstention" grounds.
The Younger abstention is a way for federal courts to refuse to consider federal constitutional claims brought in a civil rights lawsuit because a state court proceeding is pending where a party (theoretically) raise his or her federal constitutional claims.
Never mind that jurisdiction of federal courts is defined only by Article III and by the U.S. Congress and federal courts cannot invent rules to restrict their own jurisdiction to review federal constitutional claims.
Never mind that there is no condition precedent in the Civil Rights Act, 42 U.S.C. 1983 demanding that federal constitutional claims must be first raised in state courts.
Never mind the tradition of the New York State courts to either ignore constitutional claims altogether, on the trial and appellate levels, or apply the court-created doctrine of the so-called "constitutional avoidance", resolving cases on "state grounds" without reaching constitutional issues, even though constitutional issues also involve issues of Supremacy of the U.S. Constitution over the inconsistent state laws (which is sometimes called pre-emption).
Never mind that after New York State courts ignore federal constitutional issues, there is no appeal to the U.S. Supreme Court as of right, where 9 justices have over 5000 petitions filed annually for their review and grant 75, according to statistics.
Never mind that if a party goes back to federal court AFTER his constitutional claims are (1) ignored; (2) considered frivolous; or (3) "avoided" by state courts, he is blocked from raising those same federal constitutional claims now by the so-called Rooker-Feldman doctrine in which the aggrieved party who is desperately trying to get access to court to review his/her federal constitutional claims is now called a LOSER (I was always of the impression that the word is a vulgar middle-school jargon, not a legal term).
Under the Rooker-Feldman doctrine, federal courts will now claim they do not have jurisdiction to review the federal constitutional claims previously dumped by federal court on the Younger abstention grounds, because the claims should have been reviewed on appeal from the state court decision (remember - "constitutional avoidance" at best in state courts + lack of appeal as of right to the U.S. Supreme Court).
This process of trying to nail jelly to the wall when a party tries to get SOME COURT review his or her constitutional claims on the merits is impossibly difficult enough without the government party applying for such a Younger abstention in federal court initially does not apply for it in bad faith.
In my case the New York State government has risen to new heights, or rather, sank to a new low when it (1) obtained a Younger abstention to have my federal claims go to the state disciplinary court, and then (2) argued to the state disciplinary court to prohibit me to raise those claims in that court - and, judging by the fact that the court dismissed my cross-motion that raised federal constitutional issues without ANY explanation, the government succeeded in its fraud.
Once again, and this may be a valuable insight for pro se civil rights plaintiffs, Younger abstention is usually sought when:
(1) a civil rights lawsuit is filed in a federal district court;
(2) a state proceeding in the nature of an enforcement action is pending in state court or even administrative agency;
(3) it is claimed to be possible to raise federal constitutional claims in state proceedings.
Of course, administrative agencies in New York have no authority to resolve constitutional challenges to statutes and regulations, and the only court that is entitled to review and resolve such challenges is the New York State Supreme Court (the lower trial court of general jurisdiction), yet, Younger abstention is applied left and right (according to case law) when administrative proceedings and proceedings in County courts or Family courts are pending.
In my case, the Younger abstention was applied because a disciplinary proceeding was pending in the state Supreme Court, Appellate Division, 3rd Judicial Department.
Of course, when a proceeding was removed to federal court as of right, it may not be at the same time perceived as "pending" in state court for purposes of the Younger abstention, and a motion to apply such a Younger abstention in federal court before the disciplinary proceeding was remanded is premature.
Yet, the federal court "resolved" this clear jurisdictional problem by claiming that it does not have jurisdiction over my removed case because I did not claim racial discrimination in removing the case under 28 USC 1443 (there is, once again, not a single word requiring that I should have pled racial discrimination in that statute).
A brief summary of what has happened in my disciplinary case as to the Younger abstention.
On March 20, 2013 Bruce J. Boivin, Assistant Attorney General, New York State, argued to the federal district court that I can raise my general constitutional claims in state court proceedings under the Younger abstention.
On November 18, 2013, the federal district court agreed with Mr. Boivin, applied the Younger abstention and dismissed my federal constitutional claims to the infirmities of attorney disciplinary system in New York.
I raised federal constitutional challenges to infirmities in the attorney disciplinary process in the state court proceeding on remand.
On January 8, 2014, attorney Allison Coan of the Appellate Division Third Department, in a sworn statement to the court, claimed to the state court that I "cannot be permitted to use this proceeding or Court as a forum to ... air her discontent with the attorney disciplinary system generally, or grievances against Judge Becker specifically", Affirmation of Attorney Coan, pages 13-14, paragraph 30.
In other words, Allison Coan asked the court to deny me even the opportunity to be heard on my facial and as-applied constitutional challenges to attorney disciplinary system in state court, which was diametrically opposite to the Committee's claim to the federal court that I will be allowed to do just that in state court.
Apparently, Attorney Coan failed to read statements made by attorney Bruce Boivin on her behalf on March 20, 2014 which triggered the court to apply the Younger abstention.
Had the court been presented the statement of Allison Coan made later to the state court, requesting the state court NOT to consider my federal constitutional claims, the federal district court would have been constrained to deny dismissal of my federal constitutional claims on the Younger abstention grounds.
Then, Allison Coan (1) claimed my request to disqualify her committee for bias is frivolous; (2) after saying that the Committee made an ex parte application for an order of transfer of the case to the 4th Department anyway, and the two Committees, of the 3rd and 4th Department, and the two courts, the 3rd and 4th Department, to this day stall me from obtaining accesss to the Committee's ex parte application that already resulted in an ex parte order of June 11, 2014 transferring the case to the 4th Department.
In the 4th Department, attorney Mary Gasparini continued prosecuting and endorsing every word the 3rd Department said, including Allison Coan's statement that I should not be allowed to use state courts as a forum to air my "general grievances" (federal constitutional challenges) to the attorney disciplinary system.
As a culmination of those efforts, on September 30, 2014 the 4th Department court agreed not to give me a forum to raise federal constitutional challenges by denying my cross-motion raising such challenges without one syllable of an explanation.
At this time, the 4th Department has "held" and "reserved" a summary judgment for the prosecution while at the same time ordering a trial before a referee (an incompatible task, as any law student tested on what a summary judgment is would tell you).
Yet, in view of those same constitutional infirmities of the attorney disciplinary system that the court refused to address, why would the court care about compliance with the law if it knows that I have no right of appeal and no recourse from whatever the court may do with me).
To make appearances of impartiality, the court assigned a referee to hear factual issues while a motion for a summary judgment is still unresolved.
Yet, it bears mentioning, what kind of referee was assigned.
Last November, New Yorkers by overwhelming majority rejected an amendment of the state Constitution as to the proposal of the judiciary to extend the mandatory retirement age of judges to 80. Apparently, you the people of the State of New York considered it prudent and ensuring a fair trial when judges retire at the age of 75.
The Legislature pushed a little farther anyway with the age of court referees, but still cut it off at the age of 76.
I was appointed a referee who turns 80 on October 16, 2014, to hear an enormous amount of facts that the court did not analyze in its decision of September 30, 2014.
In other words, the review of an extremely complex case and my fate is now rested on the shoulders of an octogenarian.
A brilliant move.
Moreover, the referee is a retired judge out of Wayne County Court, even though by law, Judiciary Law 114, 115, a retired judge out of Wayne County court is not entitled to serve as a court referee, and a cut-off age for such a referee if he/she is qualified (which my referee is not) is 76 years of age, while my referee, according to publicly available information, retired because he turned 75 in 2009, and turns 80 on October 16, 2014.
Imagine
what can the same court do to you, ladies and gentlemen, when zealous advocates like me are quashed and other members of the bar are intimidated by my example and example of attorneys like me, also disciplined for the contents of their advocacy for their clients, and will refuse to raise for you issues that are essential to your cases - for fear of retaliation from the judiciary?
I did it under a federal removal statute 28 USC 1443 and added a 1983 action to the removed disciplinary proceedings.
My disciplinary proceeding was remanded because I am white - I am not joking. The federal court "read" the removal statute, 28 USC 1443, as requiring the denial of equal protection to be on the grounds of racial discrimination, even though there is not a single word about it in the text of the statute, and federal courts have no authority to change federal statutes by interpretation.
The court also dismissed my 1983 action on the so-called "Younger abstention" grounds.
The Younger abstention is a way for federal courts to refuse to consider federal constitutional claims brought in a civil rights lawsuit because a state court proceeding is pending where a party (theoretically) raise his or her federal constitutional claims.
Never mind that jurisdiction of federal courts is defined only by Article III and by the U.S. Congress and federal courts cannot invent rules to restrict their own jurisdiction to review federal constitutional claims.
Never mind that there is no condition precedent in the Civil Rights Act, 42 U.S.C. 1983 demanding that federal constitutional claims must be first raised in state courts.
Never mind the tradition of the New York State courts to either ignore constitutional claims altogether, on the trial and appellate levels, or apply the court-created doctrine of the so-called "constitutional avoidance", resolving cases on "state grounds" without reaching constitutional issues, even though constitutional issues also involve issues of Supremacy of the U.S. Constitution over the inconsistent state laws (which is sometimes called pre-emption).
Never mind that after New York State courts ignore federal constitutional issues, there is no appeal to the U.S. Supreme Court as of right, where 9 justices have over 5000 petitions filed annually for their review and grant 75, according to statistics.
Never mind that if a party goes back to federal court AFTER his constitutional claims are (1) ignored; (2) considered frivolous; or (3) "avoided" by state courts, he is blocked from raising those same federal constitutional claims now by the so-called Rooker-Feldman doctrine in which the aggrieved party who is desperately trying to get access to court to review his/her federal constitutional claims is now called a LOSER (I was always of the impression that the word is a vulgar middle-school jargon, not a legal term).
Under the Rooker-Feldman doctrine, federal courts will now claim they do not have jurisdiction to review the federal constitutional claims previously dumped by federal court on the Younger abstention grounds, because the claims should have been reviewed on appeal from the state court decision (remember - "constitutional avoidance" at best in state courts + lack of appeal as of right to the U.S. Supreme Court).
This process of trying to nail jelly to the wall when a party tries to get SOME COURT review his or her constitutional claims on the merits is impossibly difficult enough without the government party applying for such a Younger abstention in federal court initially does not apply for it in bad faith.
In my case the New York State government has risen to new heights, or rather, sank to a new low when it (1) obtained a Younger abstention to have my federal claims go to the state disciplinary court, and then (2) argued to the state disciplinary court to prohibit me to raise those claims in that court - and, judging by the fact that the court dismissed my cross-motion that raised federal constitutional issues without ANY explanation, the government succeeded in its fraud.
Once again, and this may be a valuable insight for pro se civil rights plaintiffs, Younger abstention is usually sought when:
(1) a civil rights lawsuit is filed in a federal district court;
(2) a state proceeding in the nature of an enforcement action is pending in state court or even administrative agency;
(3) it is claimed to be possible to raise federal constitutional claims in state proceedings.
Of course, administrative agencies in New York have no authority to resolve constitutional challenges to statutes and regulations, and the only court that is entitled to review and resolve such challenges is the New York State Supreme Court (the lower trial court of general jurisdiction), yet, Younger abstention is applied left and right (according to case law) when administrative proceedings and proceedings in County courts or Family courts are pending.
In my case, the Younger abstention was applied because a disciplinary proceeding was pending in the state Supreme Court, Appellate Division, 3rd Judicial Department.
Of course, when a proceeding was removed to federal court as of right, it may not be at the same time perceived as "pending" in state court for purposes of the Younger abstention, and a motion to apply such a Younger abstention in federal court before the disciplinary proceeding was remanded is premature.
Yet, the federal court "resolved" this clear jurisdictional problem by claiming that it does not have jurisdiction over my removed case because I did not claim racial discrimination in removing the case under 28 USC 1443 (there is, once again, not a single word requiring that I should have pled racial discrimination in that statute).
A brief summary of what has happened in my disciplinary case as to the Younger abstention.
On March 20, 2013 Bruce J. Boivin, Assistant Attorney General, New York State, argued to the federal district court that I can raise my general constitutional claims in state court proceedings under the Younger abstention.
On November 18, 2013, the federal district court agreed with Mr. Boivin, applied the Younger abstention and dismissed my federal constitutional claims to the infirmities of attorney disciplinary system in New York.
I raised federal constitutional challenges to infirmities in the attorney disciplinary process in the state court proceeding on remand.
On January 8, 2014, attorney Allison Coan of the Appellate Division Third Department, in a sworn statement to the court, claimed to the state court that I "cannot be permitted to use this proceeding or Court as a forum to ... air her discontent with the attorney disciplinary system generally, or grievances against Judge Becker specifically", Affirmation of Attorney Coan, pages 13-14, paragraph 30.
In other words, Allison Coan asked the court to deny me even the opportunity to be heard on my facial and as-applied constitutional challenges to attorney disciplinary system in state court, which was diametrically opposite to the Committee's claim to the federal court that I will be allowed to do just that in state court.
Apparently, Attorney Coan failed to read statements made by attorney Bruce Boivin on her behalf on March 20, 2014 which triggered the court to apply the Younger abstention.
Had the court been presented the statement of Allison Coan made later to the state court, requesting the state court NOT to consider my federal constitutional claims, the federal district court would have been constrained to deny dismissal of my federal constitutional claims on the Younger abstention grounds.
Then, Allison Coan (1) claimed my request to disqualify her committee for bias is frivolous; (2) after saying that the Committee made an ex parte application for an order of transfer of the case to the 4th Department anyway, and the two Committees, of the 3rd and 4th Department, and the two courts, the 3rd and 4th Department, to this day stall me from obtaining accesss to the Committee's ex parte application that already resulted in an ex parte order of June 11, 2014 transferring the case to the 4th Department.
In the 4th Department, attorney Mary Gasparini continued prosecuting and endorsing every word the 3rd Department said, including Allison Coan's statement that I should not be allowed to use state courts as a forum to air my "general grievances" (federal constitutional challenges) to the attorney disciplinary system.
As a culmination of those efforts, on September 30, 2014 the 4th Department court agreed not to give me a forum to raise federal constitutional challenges by denying my cross-motion raising such challenges without one syllable of an explanation.
At this time, the 4th Department has "held" and "reserved" a summary judgment for the prosecution while at the same time ordering a trial before a referee (an incompatible task, as any law student tested on what a summary judgment is would tell you).
Yet, in view of those same constitutional infirmities of the attorney disciplinary system that the court refused to address, why would the court care about compliance with the law if it knows that I have no right of appeal and no recourse from whatever the court may do with me).
To make appearances of impartiality, the court assigned a referee to hear factual issues while a motion for a summary judgment is still unresolved.
Yet, it bears mentioning, what kind of referee was assigned.
Last November, New Yorkers by overwhelming majority rejected an amendment of the state Constitution as to the proposal of the judiciary to extend the mandatory retirement age of judges to 80. Apparently, you the people of the State of New York considered it prudent and ensuring a fair trial when judges retire at the age of 75.
The Legislature pushed a little farther anyway with the age of court referees, but still cut it off at the age of 76.
I was appointed a referee who turns 80 on October 16, 2014, to hear an enormous amount of facts that the court did not analyze in its decision of September 30, 2014.
In other words, the review of an extremely complex case and my fate is now rested on the shoulders of an octogenarian.
A brilliant move.
Moreover, the referee is a retired judge out of Wayne County Court, even though by law, Judiciary Law 114, 115, a retired judge out of Wayne County court is not entitled to serve as a court referee, and a cut-off age for such a referee if he/she is qualified (which my referee is not) is 76 years of age, while my referee, according to publicly available information, retired because he turned 75 in 2009, and turns 80 on October 16, 2014.
Imagine
- if the court and the prosecution allows themselves to display such a disdain to the rule of law as it was displayed in my disciplinary case, while disciplining an attorney,
- if breaking the law is done by the court and the prosecution in order (allegedly) to protect the public (from my zealous advocacy on behalf of my clients),
what can the same court do to you, ladies and gentlemen, when zealous advocates like me are quashed and other members of the bar are intimidated by my example and example of attorneys like me, also disciplined for the contents of their advocacy for their clients, and will refuse to raise for you issues that are essential to your cases - for fear of retaliation from the judiciary?
Tuesday, October 7, 2014
When validity of statements are defined by identity and status of speakers, the rule of law goes out the door...
I always thought that the law must apply equally across the board.
Yet, I have learnt (the hard way) that the contents of one's speech may be perceived very differently.
According to my own experience, my research of case law and my review of multiple law review articles and books on the law and about the U.S. Supreme Court and the judiciary in general, the same constitutional argument may be:
(1) disregarded completely if it comes from a "lay" individual who is not an attorney - because he or she "does not know what he/she is talking about";
(2) glorified if it comes from a Justice of the U.S. Supreme Court (or lower court, for that matter) as an example of wonderful creativity and innovation;
(3) lauded or at last tolerated if it comes from a law professor, and
(4) be a basis of attorney discipline and sanctions if it is raised by a civil rights attorney in litigation.
It does not seem like the rule of law to me.
Yet, I have learnt (the hard way) that the contents of one's speech may be perceived very differently.
According to my own experience, my research of case law and my review of multiple law review articles and books on the law and about the U.S. Supreme Court and the judiciary in general, the same constitutional argument may be:
(1) disregarded completely if it comes from a "lay" individual who is not an attorney - because he or she "does not know what he/she is talking about";
(2) glorified if it comes from a Justice of the U.S. Supreme Court (or lower court, for that matter) as an example of wonderful creativity and innovation;
(3) lauded or at last tolerated if it comes from a law professor, and
(4) be a basis of attorney discipline and sanctions if it is raised by a civil rights attorney in litigation.
It does not seem like the rule of law to me.
American lawyers lack protection that European lawyers have for statements on behalf of their clients
I have written in this blog that I have a disciplinary proceeding pending against me for sanctions imposed upon me by a judge who I sued before he started to impose the sanctions.
All sanctions were imposed for my statements on behalf of clients.
Today I've read the "Summary of International Standards Concerning Attorney Disbarment" by the American Bar Association which cites to the International Covenant for Civil and Political Rights (ICCPR) and to cases of the European Court of Human Rights.
In particular, what caught my attention is footnote 5 on page 2 of the "Summary" where the ABA cites to a case Steur v. Netherlands, where an attorney was disciplined for questioning good faith of an investigative officer where the attorney's client was charged with social security fraud.
The attorney was disciplined for "impugning the character" of the officer, and his appeal was dismissed.
The European Court of Human Rights held that punishing the attorney for statements on behalf of his client was a clear violation of attorney's right to freedom of expression, and was wrong because it could have chilled expression during advocacy, inflict harm on the legal profession and can lead to denial of a fair trial to the clients.
In this country, attorneys do not even have a right to be heard on any level higher than (in New York) the level of the appellate court. Attorneys in the U.S. are not given the right to appeal any further, are not given the right to remove their case in federal court, unless they can claim RACIAL discrimination (as my case showed).
In Netherlands, the attorney was provided two more layers of review AS OF RIGHT - right to an appeal, and right to contest the finding of discipline in the European Court of human rights.
In this country which attempts to proclaim itself as "the leader of the free world", elementary rights afforded to attorneys in Europe, are not given to American lawyers targeted for their advocacy for their clients.
When attorneys are punished, whether through sanctions, arbitrarily imposed fees for "frivolous conduct" or attorney discipline, for advocacy for clients (and especially where criticism of the judiciary is part of such advocacy), the public which is already grossly underrepresented in court (less than 20% of litigants can afford legal representation in the U.S.) loses honest advocates who are courageous enough to step on toes of public officials who violate clients' civil rights.
The American Bar Association referenced in the "Summary" I mentioned above the opinion of the United Nations Organization that "if attorneys are unable to vigorously defend their clients for fear of disbarment, they will be unable to provide the legal services required to ensure meaningful access to counsel".
In view of what has happened and is continuing to happen to me based exclusively on the contents of my advocacy on behalf of my clients, and in view of the fact that multiple attorneys have been suspended or disbarred in the U.S. and are continued to be disciplined in a variety of ways, including suspension or disbarment, there is no way to obtain independent legal counsel in the U.S., as any and all American lawyers would be afraid of a disciplinary action based on the essence of their advocacy and will not raise sensitive issues on behalf of clients for fear of attorney discipline or financial sanctions.
Such punishment is clearly against the public's best interest, and until the public starts paying attention to punishment imposed on attorneys for the contents of their statements in court on behalf of their clients, access to justice in the U.S. will remain as abysmal or non-existing as it is now.
All sanctions were imposed for my statements on behalf of clients.
Today I've read the "Summary of International Standards Concerning Attorney Disbarment" by the American Bar Association which cites to the International Covenant for Civil and Political Rights (ICCPR) and to cases of the European Court of Human Rights.
In particular, what caught my attention is footnote 5 on page 2 of the "Summary" where the ABA cites to a case Steur v. Netherlands, where an attorney was disciplined for questioning good faith of an investigative officer where the attorney's client was charged with social security fraud.
The attorney was disciplined for "impugning the character" of the officer, and his appeal was dismissed.
The European Court of Human Rights held that punishing the attorney for statements on behalf of his client was a clear violation of attorney's right to freedom of expression, and was wrong because it could have chilled expression during advocacy, inflict harm on the legal profession and can lead to denial of a fair trial to the clients.
In this country, attorneys do not even have a right to be heard on any level higher than (in New York) the level of the appellate court. Attorneys in the U.S. are not given the right to appeal any further, are not given the right to remove their case in federal court, unless they can claim RACIAL discrimination (as my case showed).
In Netherlands, the attorney was provided two more layers of review AS OF RIGHT - right to an appeal, and right to contest the finding of discipline in the European Court of human rights.
In this country which attempts to proclaim itself as "the leader of the free world", elementary rights afforded to attorneys in Europe, are not given to American lawyers targeted for their advocacy for their clients.
When attorneys are punished, whether through sanctions, arbitrarily imposed fees for "frivolous conduct" or attorney discipline, for advocacy for clients (and especially where criticism of the judiciary is part of such advocacy), the public which is already grossly underrepresented in court (less than 20% of litigants can afford legal representation in the U.S.) loses honest advocates who are courageous enough to step on toes of public officials who violate clients' civil rights.
The American Bar Association referenced in the "Summary" I mentioned above the opinion of the United Nations Organization that "if attorneys are unable to vigorously defend their clients for fear of disbarment, they will be unable to provide the legal services required to ensure meaningful access to counsel".
In view of what has happened and is continuing to happen to me based exclusively on the contents of my advocacy on behalf of my clients, and in view of the fact that multiple attorneys have been suspended or disbarred in the U.S. and are continued to be disciplined in a variety of ways, including suspension or disbarment, there is no way to obtain independent legal counsel in the U.S., as any and all American lawyers would be afraid of a disciplinary action based on the essence of their advocacy and will not raise sensitive issues on behalf of clients for fear of attorney discipline or financial sanctions.
Such punishment is clearly against the public's best interest, and until the public starts paying attention to punishment imposed on attorneys for the contents of their statements in court on behalf of their clients, access to justice in the U.S. will remain as abysmal or non-existing as it is now.
Monday, October 6, 2014
A complaint was filed against Judge John Weidman, Oxford Town/Village Court, NY
Just filed a complaint against judge John Wiedman, of Oxford Town/Village Court.
I made a motion to recuse the judge in a criminal case, based on my personal knowledge and affidavits from two witnesses, about judge's ex parte communications, history of misconduct with defendant's brother and disrespectful behavior toward me.
The judge had an opportunity to recuse without any statements, that is what judges usually do when they recuse.
This judge was different.
He waited until I came to argue the motion, ordered me to argue only the portion of the motion to recuse out of the omnibus motion (several motions in one, as required in the criminal case), then repeated my claim that in view of evidence of judge's disrespect to me my client cannot obtain a fair trial from this judge, CONFIRMED that the judge did not respect me, and stated on record that "one gets respect that one deserves".
With that, the judge NEVER DENIED what was in the sworn statements in support of my motion to recuse.
Rules of judicial conduct MANDATE judges to respect attorneys and parties appearing in front of them.
If the judge cannot abide by that requirement of respect, he must recuse - and Judge Weidman did recuse from the case, but only after he claimed his disrespect to me, in violation of the rules of judicial conduct, as a matter of right, and claimed that I do not deserve respect.
And made this claim before a courtroom full of people, sending the present lay individuals and attorneys a message that to make a motion to recuse is wrong, no matter how meritorious such a motion may be, and that making such a motion will subject the defense counsel to humiliation from the court.
I bet that no attorney whose livelihood depends on assigned cases from this judge would dare to make a motion to recuse after today.
Good job, Judge Weidman, in intimidating the public and attorneys into believing that it is YOUR rule and not the rule of law that is the law in the Town of Oxford court.
Naturally, today I filed a complaint about Judge Weidman's behavior to the Judicial Conduct Commission (including two instances of ex parte communications, an improper threat of a bench warrant, disrespectful, demeaning and sexist conduct toward a female attorney).
If the complaint is tossed, we will know that what Judge Weidman did is an allowed and encouraged behavior in New York judges, and we will then expect more of the same, from this judge and from other judges.
As to the judge's expression of disrespect to me, I am not surprised. Usually abusers of women do not respect their victims, especially those who stand up for themselves and for others. And Judge Weidman is no exception.
I made a motion to recuse the judge in a criminal case, based on my personal knowledge and affidavits from two witnesses, about judge's ex parte communications, history of misconduct with defendant's brother and disrespectful behavior toward me.
The judge had an opportunity to recuse without any statements, that is what judges usually do when they recuse.
This judge was different.
He waited until I came to argue the motion, ordered me to argue only the portion of the motion to recuse out of the omnibus motion (several motions in one, as required in the criminal case), then repeated my claim that in view of evidence of judge's disrespect to me my client cannot obtain a fair trial from this judge, CONFIRMED that the judge did not respect me, and stated on record that "one gets respect that one deserves".
With that, the judge NEVER DENIED what was in the sworn statements in support of my motion to recuse.
Rules of judicial conduct MANDATE judges to respect attorneys and parties appearing in front of them.
If the judge cannot abide by that requirement of respect, he must recuse - and Judge Weidman did recuse from the case, but only after he claimed his disrespect to me, in violation of the rules of judicial conduct, as a matter of right, and claimed that I do not deserve respect.
And made this claim before a courtroom full of people, sending the present lay individuals and attorneys a message that to make a motion to recuse is wrong, no matter how meritorious such a motion may be, and that making such a motion will subject the defense counsel to humiliation from the court.
I bet that no attorney whose livelihood depends on assigned cases from this judge would dare to make a motion to recuse after today.
Good job, Judge Weidman, in intimidating the public and attorneys into believing that it is YOUR rule and not the rule of law that is the law in the Town of Oxford court.
Naturally, today I filed a complaint about Judge Weidman's behavior to the Judicial Conduct Commission (including two instances of ex parte communications, an improper threat of a bench warrant, disrespectful, demeaning and sexist conduct toward a female attorney).
If the complaint is tossed, we will know that what Judge Weidman did is an allowed and encouraged behavior in New York judges, and we will then expect more of the same, from this judge and from other judges.
As to the judge's expression of disrespect to me, I am not surprised. Usually abusers of women do not respect their victims, especially those who stand up for themselves and for others. And Judge Weidman is no exception.
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