It is time for a shift from appointed to elected federal judges, and to get rid of the requirement that judges should be attorneys

Here is the list of currently serving judges of the U.S. Court of Appeals for the 2nd Circuit.

Only 8 out of 19 judges are not eligible for a full pension under the so-called Rule 80 (if the age of the judge plus years of the bench equal 80, the judge is entitled to a pension equal to the judge's full salary on retirement).

6 out of 19 judges have "senior status".

9 out 19 judges are over the age of 70, and these judges are the ones who are predominantly assigned to civil rights appeals, and decide them predominantly through the non-precedential "fast and sloppy track", by "summary orders".

The youngest judge of the court is 50.

The next youngest judge is 56.

The next "youngest" 8 judges are 60 to 67.

To me, it is a depressing picture.

It appears that, with all the abundance and even overproduction of lawyers in this country, and with all the abundance of bright and capable attorneys in this countries, in the entire circuit there is no young blood to be able to serve on appellate court, and people's lives absolutely have to be decided by people who may be mentally, physically and by their energy levels, unable to withstand the vigor required of a judge on the bench.

One other issue of big concern is that judges of 70+ and especially 80+ years of age have spent their formative years when racial and gender discrimination was still the norm and when the civil rights movement was only prepared for the breakthroughs of the 60s.

It is scary enough that such people (most of them with a prosecutorial background and a prosecutorial way of thinking) were on the bench for as long as they were on the bench.  Everybody knows that, with age, the bad character traits become ingrained in people and become stronger.

The even scarier part is that specifically the old judges, 75 to 80 years of age, are resolved to decide civil rights appeals in the 2nd Circuit, and they reduce decisions of such cases from the "as of right" de novo review required for such appeals, to a "certiorari" review and unthinking rubber-stamping of whatever the lower court says.  Federal court statistics show that this way 85% of federal appeals and an even higher number of civil rights appeals are decided.

Thus, a question is raised - is there even a point of filing a civil rights lawsuit and a civil rights appeal if judges in federal courts (mostly old judges with a prosecutorial background and mentality) decide from the time such lawsuits are filed that they are "not worthy" of review - and act accordingly?

Moses walked his people around the desert for 40 years to let those born in slavery die out.

Maybe, it is time to replace the old generation of judges with the new blood - and change the appointment system with elections system, to prevent political appointees from getting to the bench to serve political agenda of the president-in-office, the way it was happening until now.

And - there should not be a requirement that the new elected jurist should necessarily be lawyers whose licenses are in the hands of the judiciary, and thus the lawyers are trained to check their independent minds at the door to the legal profession.

The judiciary needs a true young and independent blood.

It is time for judicial reform.

I would also like to point out that you might have a difficulty finding official judicial biographies on the website of the U.S. Court of Appeals for the 2nd Circuit, they are pretty well hidden in the depths of the website, which I consider an appearance of impropriety.

People have a right to know who is judging them and do not have to engage in "Easter egg-hunt" through the court's website to get that information.

At this time, to get to judicial biographies, you need to do the following:

1. Go to the official website of the U.S. Court of Appeals for the 2nd Circuit (the usual procedure);
2. Go to "about the court" (the usual procedure); and then the "unusual procedure starts:
3. Hit the "About the Court";
4. IGNORE the drop-down list and
5. Hit AGAIN "About the court" while the drop-down list is still open - and this page will open;
6. Go to the "History" section;
7. Find the sentence "The Second Circuit Court of Appeals has been home to many notable jurists, some of whom have served as Chief Judge of the court";
8. Hit the link on "notable jurists".

In my opinion, it does not do the court much credit to hide judicial biographies on the website in such a way that one needs to engage in tricks to find them.

To allow the public to find judicial biographies of the currently serving judges easier, I made this table (below) and interlinked in it the names of judges.

You can read the biography of each currently serving judge of this court by clicking his or her name.

No.	Name of Judge	Date of Birth	Age	Appointed to federal courts and name of president	Years on the bench	Appointed to appellate court and name of president	Years on appellate federal bench	Rule 80 full salary eligible on retirement?	Senior status? Y/N
1	Walker, John Mercer Jr.	1940	75	1985, Ronald Reagan	30	1989, George H.W. Bush	26	Yes	Yes, 2006
2	Jacobs, Dennis G., Former chief judge 2006-2013	1944	71	1992, George H.W. Bush	23	1992, George H.W. Bush	23	Yes	No
3	Leval, Pierre Nelson	1936	79	1977, Jimmy Carter	38	1993, William Clinton	22	Yes	Yes, 2002
4	Calabresi, Guido	1932	83			1994, William Clinton	21	Yes	Yes, 2009
5	Cabranes, Jose Alberto	1940	75	1979, Jimmy Carter	35	1994, William Clinton	21	Yes	No
6	Pooler, Rosemary S.	1938	77	1994, William Clinton	21	1997, William Clinton	18	Yes	No
7	Straub, Chester J.	1937	78			1998, William Clinton	17	Yes	Yes, 2008
8	Sack, Robert David	1939	76			1997, William Clinton	18	Yes	Yes, 2009
9	Katzmann, Robert A., Chief judge 2013- present	1953	62			1999, William Clinton	16	No	No
10	Parker, Barrington Daniels Jr.	1944	71			2001, George W. Bush	14	Yes	Yes, 2009
11	Raggi, Reena	1951	64	1987, Ronald Reagan	28	2002, George W. Bush	13	Yes	No
12	Wesley, Richard C.	1949	66			2003, George W. Bush	12	No	No
13	Hall, Peter W.	1948	67			2003, George W. Bush	12	No	No
14	Livingston, Debra Ann	1959	56			2007, George W. Bush	8	No	No
15	Lynch, Gerard E.	1951	64	2000, William Clinton	15	2009, Barack Obama	6	No	No
16	Chin, Denny	1954	61	1994, William Clinton	21	2009, Barack Obama	6	Yes	No
17	Lohier, Raymond Joseph Jr.	1965	50			2010, Barack Obama	5	No	No
18	Carney, Susan Laura	1951	64			2011, Barack Obama	4	No	No
19	Droney, Christopher Fitzgerald	1954	61	1997, William Clinton	17	2011	4	No	No

Prattsville justice court and its luck with judges. Judge Rikard, would you, please, pee in a cup before each court session?

In August of 2014, the "father-and-daughter" court team in Prattsville, NY, (the father as a judge, the daughter as a court clerk) "resigned amid investigation" into the alleged "financial irregularities".

Now who was the replacement judge? 

David Rikard!  The attorney who lost custody of his child in the past because he used cocaine and was never disciplined as an attorney (see my blog here)!  Rikard's defense in the custody proceeding was that he did not use cocaine in the presence of the child.  My question is - does he use cocaine now and does he use it before coming to the bench?  My experience (as an attorney) with people who use cocaine is - once they get on it, they never get off it.

Moreover, according to the information I have, David Rikard requested the Town of Prattsville not to create a second judgeship because he allegedly "could handle it all" as a Town Justice on his own.

So, people of the Town of Prattsville were supposed to use just David Rikard as a judge - who obviously does not like competition.

I wonder whether voters of the Town of Prattsville knew of the decision by the Appellate Division Third Department in 2011 when David Rikard ran for judge in 2013.

When Judge Rikard tried to prevent an second judgeship from being created though, the Town of Prattsville voters, thankfully, voted against such a proposition at a referendum.

The second judgeship was created, and the local businessman Robert Compton who was voted in as the second judge, pledged to serve for free and return his salary to the town, and to attend the judiciary school at his own expense.

I wonder how cases are assigned between judges Rikard and Compton in the Prattsville Town Court, but if your case is assigned in front of Judge Rikard, you should be "very afraid".

And, since the possible use of drugs by a judge is a matter of public concern, do we need to make sure that Judge Rikard did not use illegal drugs before he gets on the bench by asking him to pee in a cup before every court session?

TL;DR

TL;DR is an abbreviation usually used in Internet communications which stands for "too long, did not read".

It's also appears to be a policy of the American courts (in my experience as an attorney, and my practice spans several counties in the State of New York, multiple courts and federal courts, too).  The policy is - do not put too much into your pleading, or it will simply not be read.

Nothing is wrong with making your pleadings concise, precise and persuasive.

Yet, "concise" does not always mean "short", and it does for courts.

Courts expect you not to be concise, they expect you to be short, because they do not have time to review your pleadings, no matter how important they are - if they are too long.

Sometimes a lawsuit involves a lot of parties and a lot of claims against those parties.

NOT putting those claims into one single lawsuit, if the claims are related, is sanctionable as "duplication" of litigation.

PUTTING those claims into one single lawsuit may result in losing a right to adequately present each and every separate claim to the court - because of the court's page-limit/font size/ required structure of the pleadings "local rules".

What is even more interesting is that the government defendant's attorneys are sitting on the "Local Rules" committees of federal courts "helping" the courts define the rules in such a way that they practically block civil rights defendants' ability to adequately present cases to the court on Memorandums of Law and on further on on appeals.

Yet, the TL.DR principle works not only in federal courts, it is universally used everywhere.

Judges hire interns or direct the law clerks to write summaries of cases - and read only those summaries out of a voluminous case.

The word "voluminous" has become a swear word in judgespeak.

 Imagine that you have a criminal trial and your defense is restricted in how many witnesses you can present, and that each witness can only speak for 2 minutes max.

Your defense is thus restricted into what can be spat out in those 2 minutes.

Approximately the same happens in motions and on appeals where your number of pages is severely restricted.

Constitutional issues are notoriously complex to present to the court.

It is notoriously complex to overcome the so-called "presumptions of validity" of statutes.

Courts are notoriously frowning upon any claims of unconstitutional conduct by the government, so you need to really explain to the court, with references to the record, legislative history of a certain constitutional provision, history of discrimination on a certain issue, history of discrimination against your particular client, references to case law, treatises and law reviews, to persuade the court that a constitutional violation, indeed occurred.

That takes time.  That takes volume.

Some cases, like foreclosure cases, especially where the suing plaintiff's name is half the page, it is some kind of a Bank a/k/a Trust a/k/a Asset-Backed Certificate Z thing, and where issues of standing (the chain of title to the mortgage and note) are an issue (and they are an issue in practically every single foreclosure brought in New York courts, at least that is my practice), you HAVE to go through a large number of documents, received from discovery, received from the clerk's office, lawsuits against that particular "Bank a/k/a Trust a/k/a Asset-Backed Certificate Zillion" thing to show to the court why exactly this monster name does not have standing to sue your client.

In state foreclosure proceedings, there is no page limit requirement for motions or oppositions to motions.

Yet, the TL.DR rule comes to the fore in those proceedings anyway, because judges have too large of a caseload to be able to look through your case thoroughly, which begs the question - why then pretend that they looked at all and that you had "access to justice"?

Access to a negligent and hurried judge who only read a half-page jist out of a 4-inch binder of documents is not true access to justice (it may be a hyperbole as to some cases, in some cases you truly have to present large volumes of documents and comments on them).

And the judge, elected by the people to hear and resolve their grievances, must have the competence and the patience to actually review all of that, because the outcome is - whether a person in front of the judge will or will not keep his home, with his or her family in it.

Application of the TL.DR policy is unacceptable here - as it is in any other court case.

Yet, that policy is pervasive in courts, and in law schools professors insist that the "future lawyers of America" water down their arguments to the 8th-grade level so that the judges on the bench "in a fast paced environment" are able to comprehend it.

Well, some issues simply cannot be watered down to the 8th-grade level.

And then it will be blamed on you - and your client.

And that situation should be changed by a court reform.

Judicial self-discipline should be removed from the hands of federal judges. It doesn't work and leaves victims of judicial misconduct without a remedy.

Try suing a federal judge within the U.S. Court of Appeals for the 2nd Circuit for misconduct during court proceedings.

Most likely, your lawsuit will be tossed for "lack of jurisdiction" on the basis of the concept of "absolute judicial immunity", even for malicious and corrupt acts on the bench.

Yet, absolute judicial immunity for malicious and corrupt acts on the bench was given by the judiciary to itself because of the claim by the judiciary that an alternative remedy is available - the remedy of judicial discipline for acts ON THE BENCH.

Shown below are the rules defining judicial misconduct in the 2nd Circuit, they can be found here.  Please, note that in federal courts, there is no independent body judging judges whether they commit misconduct (short of impeachment - which is practically impossible to attain due to complexity of the rules).  In the 2nd Circuit, judges judge themselves - with predictable results.

First, judges invent rules governing their own misconduct - also with predictable results.

According to the 2nd Circuit rules, this is misconduct that is subject to discipline:

It is misconduct off the bench.  Try proving any of the above.  Note that the only issues pertaining to conduct on the bench are:

Rule 3 (1)(C)  - ex parte communications;
Rule 3  (1)(D) - treating litigants or attorneys in a demonstrably egregious and hostile manner (and that is a judgment call, and, judging by the number of judges disciplined in federal courts - practically none in 100 years), you can guess how judges judge themselves.

That's it.

There is no mentioning in the misconduct subject to discipline of making malicious or corrupt decisions on the bench - conduct covered by judicial immunity BECAUSE of the alleged AVAILABILITY of judicial discipline ON THAT SAME ISSUE - malicious and corrupt conduct on the bench.

Yet, look at what the 2nd Circuit excluded from judicial misconduct subject to discipline:

Even if the judge is accused of making a corrupt decision on the bench - if the judge made a decision because he received a bribe, engaged in an ex parte contact, if his decision involved racial or ethnic bias, or personally derogatory remarks - the merits of the case, the actual MAKING of the judicial decision BECAUSE the judge received a bribe, BECAUSE the judge fixed the case after an ex parte communication, BECAUSE the judge made a decision based on his personal racial, ethnic or other impermissible personal bias - the judge's misconduct in MAKING that corrupt or malicious decision is not even addressable as misconduct in the 2nd Circuit.

Delays in decisions (and it takes sometimes a YEAR for the U.S. District Court for the Northern District of New York to render decisions on motions) are also not misconduct.

Yet, litigants are held to the strictest standards by the district courts and by the 2nd Circuit and appeals, for example, are not accepted past a rigorous (and restricted for civil rights cases) deadline unless "a serious illness or death in the family".  Commitments at work, problems at school with children, commitments in other courts for counsel - all of that is no important to the 2nd Circuit.

Yet, their own delays in rendering decisions is not misconduct and not addressable in any manner other than on appeal - and a delay in rendering a federal appellate decision is not grounds for a writ of certiorari.

Yet another issue of grave concern is that the rules jump to declining review of any allegations of judicial misconduct pertaining to the "merits" of the case.  There is no rule whatsoever pertaining to review of judicial misconduct OUTSIDE OF THE JUDGE'S AUTHORITY - where the judge may not even reach the merits.

Such a conspicuous gap in the rules does not seem accidental since actions of judges without jurisdiction, by judges' own judicially-created rules of immunity, may be outside of the scope of immunity and may subject judges to lawsuits for damages.

Thus, judges judging judges created rules that would preclude imposing discipline on judges in a way that would allow lawsuits for damages against judges.

Which begs, as a solution, removal of judicial discipline from the hands of the federal judiciary and revamp of the rules, including statutory rules, of judicial discipline for federal judges.

As to judicial misconduct on the merits - where would an injured party get a remedy for judicial misconduct aimed at the merits of the case? 

Appeals?

I analyzed several civil rights appeals decided in the most recent years by the 2nd Circuit and found a frightening tendency of how decisions on those appeals (all dismissals) were made.

They were all referred to 3-judge panels, where the majority of judges in those panels 75 to 80 years old, and who consistently made "non-precedential summary orders" instead of providing to me or my husband the required full appellate review de novo as of right.

All appeals were denied, with the exception of one remand, but that was because of the U.S. Supreme Court decision on the issue of Younger abstention made during the pendency of the appeal - and that case made to the "precedential track" and all the way through to the U.S. Supreme Court likely because it was not a civil rights case, but a case involving business interests, a corporation.

Thus, egregious misconduct in civil rights cases are simply not recognized by the elderly "senior status" judges of the 2nd Circuit in their "non-precedential summary orders", while  civil rights Appellants have to pay the same filing fees and follow the same or more rigorous rules to perfect their appeals.

Actually,  civil rights appellants are given less time by the Local Rules of the 2nd Circuit, and based on the basis of the lower court's decision - so the 2nd Circuit prejudges cases and sides with the lower courts before it even looks at the case (if the elderly judges ever do that, which is doubtful from reading the "summary orders").

Thus, the 2nd Circuit discriminates incoming appeals into the "worthy", and getting full analysis and precedential status and the "unworthy", like these pesky civil rights cases, which are classified and prejudged before they are reviewed as unworthy of full review that the statutory law requires the appellate federal courts to provide and assigned to the "fast and sloppy track" of the "non-precedential summary orders".

The interesting phenomenon is that (I've read in a recent law review) there was a 15-fold (15 times!) increase in filings of civil rights actions from 1999 to 2007.

Yet, there was a significant DEcrease from 2009 to date.

Since I am researching the issue closely, I have come across and have read numerous dismissals of civil rights cases left and right with the disrespectful and insulting language to the civil rights litigants and their lawyers that the actions "fail to state a claim" because they are "convoluted", "incomprehensible", "harassing", "frivolous".

• Abundance of incoherent judicially created doctrine restricting, without authority, jurisdiction of federal court for purposes of civil rights action, 
• increasing frequency of sanctions by federal courts against civil rights litigants and their attorneys, imposed under 28 U.S.C. 1927, the so-called "inherent power of the court" and attorney fees that civil rights litigants, who are already victims of governmental misconduct, are increasingly ordered to pay to attorneys of the governmental violators of civil rights pursuant to 42 U.S.C. 1988, combined with 
• the "fast and sloppy track" that the civil rights appeal are classified into in federal appellate court and that 
• such appeals are habitually reviewed by "non-precedential summary orders" by "senior status" judges who are between 75 and 80 years old, 

tell me that there exists in federal court a deliberate policy of chilling civil rights litigation.
And of course, such a policy is unconstitutional, but it "evades review" since the U.S. Supreme Court pays less attention to petitions for writs of certiorari from "non-precedential summary orders" than from fully analyzed precedential decisions on appeals of federal appellate circuit courts.

If such a policy evades review by the U.S. Supreme Court, it should catch attention of the legislators, and the above described practices of federal courts must be legislatively prohibited.

Appellate Division 3rd Department establishes brand you law to protect a judge's wife - and it is now applicable to all of you. Thank you, Ellen Coccoma!

Due to the necessity to rescue the wife of the Chief Administrative Judge Michael V. Coccoma from sanctions for frivolous conduct and attorney discipline, the Appellate Division 3rd Department (Judges Garry, Lahtinen, Rose and Devine) made the following brand new law:

(1) it is now not sanctionable for attorneys to CONCEAL the death of their clients and resulting abatement of jurisdiction from the court.  So, go ahead, colleagues, if your client dies, file new motions and prosecute them as if nothing happened - the Appellate Division claimed that it is not sanctionable, even if you, like Ellen Coccoma did, affirmatively claim to your opponent after your client's death that:

• decedent's children are suing on the basis of a valid power of attorney of the decedent (while POA expire at the grantor's death);
• that calling the decedent to a deposition (while opponent does not know that the party has actually died) is "harassment" of the decedent - I do not know how a decedent can be harassed, but obviously, Ellen Coccoma does.

(2) if a retired judge, like retired Broome Surrogate's Court Judge Eugene Peckham, presides before retirement over a case and then joins as a partner the law firm - and representation - of a party in that same case, and does that while the retired judge is appointed as a Judicial Hearing Officer into the same court, that behavior is not sanctionable conduct for the retired judge or his law partners;  so now, dear retired judges - you can engage in this disqualified representation to your heart's desire, the main thing though is not to announce that you joined the law firm representing a party as a law partner, because that's how Eugene Peckham got caught, yet was never sanctioned - and never even mentioned in the Appellate Division's decision;

(3) It is now allowed for private attorneys to use courthouses to conduct depositions for the benefit of their private clients, at no cost to the attorney or to the private clients.  YAHOO, ladies and gentlemen, let's rush to courthouses and demand their use (for free) for private depositions in our cases.  The rule must equally apply to pro se parties, since it is a precedent.

(4) it is now allowed for judges to order the use of courthouses for the benefit of private attorney's depositions, at no cost to the private attorney or the attorney's private clients - at taxpayers' expense. Attention sitting judges - YOU CAN DO IT now!  You can order private use of the public courthouse building at taxpayers' expense to attorneys and parties of your choice, so go ahead, apply this precedent!

(5) Children of a person who would have been a distributee had he survived the death of the person whose death triggers the distribution, but who did not survive such death, are now distributees in their own right, even though their parent is not.  This one is hard to digest, but this rule was made because:

• Now retired justice of the Appellate Division 3rd Judicial Department drafted the will in question, but made it so obscure and convoluted that the straight reading of the will would have required clients of Judge Coccoma's wife Ellen Coccoma to lose.

To hurt two judges (retired judges, judges' relatives)?  Oh no.

So, a brand new rule is created - so apply it happily.

(6) And now the kicker - the Appellate Division 3rd Judicial Department COMMENCED A NEW LAWSUIT on behalf of Ellen Coccoma's clients.

In the old one, Ellen Coccoma provided to me as the corporate attorney, a "Bill of Particulars" where Ellen Coccoma indicated, as the basis of standing of three children of the decedent, the "Power of Attorney" from the decedent.

The Bill of Particulars is a binding pleading restricting the standing of the litigants.  Therefore, decedent's children's lawsuits and rights live and die with the rights of the grantor of the POA.

The grantor of the POA died on November 6, 2011.  With him, children's rights died, too.

If children wanted to AMEND the complaint and ADD themselves as parties IN THEIR OWN RIGHT, they should have done that - but they never did.

The Appellate Division has actually ruled in this case that the decedent does not have a remaining right to sue as to one of the properties that are the subject of litigation - the East River Road property.

So - the decedent has no right to sue, his POA is dead, his children sued only on the basis of the POA.

What happens?  the lawsuit dies and is dismissed?  Yes?  "Yes", if you have an "average Joe" as a party and an "average Joe" as the party's attorney, and the rule of law applies strictly to him and his attorney.

"No", if the party's attorney is the wife of the most powerful judge in upstate New York.

This is what was the ruling of the Appellate Division on this issue:

"Given that "[a] distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution," however, plaintiffs do have a contingent interest in East River (EPTL 1-2.5; see EPTL 1-2.16, 4-1.1 [a] [5]). They are therefore entitled to assert claims relating to waste by the life tenant and his agents, including Homestead, and seek an accounting for their actions at East River (see RPAPL 1501 [1]; SCPA 103 [30]; 2201; Matter of Gaffers, 254 App Div 448, 451-452 [1938])."

Now, IF the children had a separate and distinct interest in the East River property, they had it long before their father died and could pursue it at any time - but they chose not to, because, as the Bill of Particulars says, they proceeded exclusively on their father's POA, and not on their own individual claims as "contingent remaindermen", and they cannot pretend that the Bill of Particulars never existed.

The remedy in such a situation is to INTERVENE into the lawsuit on their own behalf and FILE an intervening pleading, after PAYING an additional Index No. fee.

Moreover, the Intervening lawsuit must be served - and in my client's case (my client is a corporation), served upon the Secretary of State.  Nothing like that ever happened.

So, how did the Appellate Division 3rd Department rescue Ellen Coccoma's clients?

For Ellen Coccoma, the Appellate Division 3rd Department did an amazing trick which was the legal equivalent of COMMENCING A NEW LAWSUIT on behalf of three clients of Ellen Coccoma by the 4 appellate judges - Judges Garry, Lahtinen, Rose and Devine.

The Appellate Division claimed that children of the decedent now have standing IN THEIR OWN RIGHT - that is after the court reviewed the Bill of Particulars clearly stating that the children were suing only on their father's POA - which died on November 6, 2011 when their father died.

As we know, the New York State Constitution prohibits sitting Supreme Court judges to practice law.

Commencing a lawsuit is practicing law.

Will the NYS Commission for Judicial Conduct take off the bench Judges Garry, Lahtinen, Rose and Devine for practicing law on the bench to the point of filing lawsuits on behalf of clients of judge Coccoma's wife who got hopelessly lost in a civil case which she is handling on the Otsego County taxpayers' dime (because she is also and primarily the Otsego County Attorney, a full-time employee).

So - since it is a precedent that judges now MAY practice law and MAY commence new lawsuits, are we now entitled to ask our presiding judges to do that for us, commence lawsuits for us - without any effort on our behalf to make motions to bring in new parties?

So many new rules - and all of them for a wife of a judge...

Yet, through the rule of precedent, all of this bounty is now yours for the taking.

Make use of the bounty, ladies and gentlemen!