The case against the Chenango County CPS proceeds to trial in federal court

The U.S. District Court for the Northern District of New York partially denied today a motion for a summary judgment that the government was asking for in the case Argro v. Osborne, Case No. 3:12-cv-910 (NAM/DEP), against the Chenango County CPS and some of its workers in their individual capacities.

The court also partially granted my clients' cross-motion regarding discovery.

The civil rights lawsuit by three plaintiffs alleges violations of their due process and 4th Amendment rights pertaining to incidents of searches of plaintiff's residences and personal property by the Chenango County workers.

The case is ordered trial-ready.

The trial date is not set yet.

You sued a judge - the judiciary will get even with you! Right, Judge Lambert?

Judge John F. Lambert of Otsego County Court, assigned to made two cases in Delaware County, one a civil case in the Delaware County Supreme court, O'Sullivan v Bowie, and another a criminal case in Delaware County Court, People v. O'Sullivan, made two blunders in those cases practically at the same time.

BLUNDER NO. 1

In the case of O'Sullivan v. Bowie the judge allowed to reopen the default of police officer Bowie sued in his individual capacity by Barbara O'Sullivan for assault on her with the use of a police vehicle.

That same judge ordered previously to the police officer, on an Order to Show Cause, to serve Barbara O'Sullivan with the motion to reopen his default by personal service.

No affidavit of personal service was filed with the court.

So how could Judge Lambert even hear that case then, if service, as ordered by the judge, was not done?

Well, the judge not only heard the case, but found that Ms. O'Sullivan was properly served and granted the motion.   

Yet, all he had to do to deny the motion is simply read his own Order to Show Cause and compare it with what kind of affidavit of service was filed, especially that Barbara O'Sullivan is a pro se litigant and the judge should have been more careful in observing her rights.

What is also quite amazing to me is that police officer sued for misconduct is represented by counsel at taxpayers' expense and the Supreme Court waives his filing fees for the motion, as if he is a representative of the government, even though he is sued, once again, in his individual capacity only.  Not too many breaks for a person who should be charged for assault and attempted murder of a woman?

BLUNDER NO. 2

Judge Lambert is presiding over the parallel criminal case of People v. Barbara O'Sullivan where the officer who made an assault on Barbara O'Sullivan is allowed to file charges against her, but the Delaware County District Attorney filed no charges against Derek Bowie for assault upon Barbara O'Sullivan (sending the message to the community that her life is expendable - because she sued Delaware County judge Carl F. Becker, the patron of the local government of Delaware County?).

Barbara O'Sullivan has made a pro se motion there asking to dismiss the indictment against her because she was not notified of the scheduled grand jury proceeding.

A New York statute required such a notification.

Judge Lambert ruled that because the felony complaint was "disposed of" at the end of the felony hearing in the lower court, the prosecution did not have to notify Barbara O'Sullivan of the pending grand jury proceedings.

I wonder how a case may be "disposed of" when a person is "held over" for the action of the grand jury at the end of the felony hearing in the lower court.

Being "disposed of" is being dismissed.

I wonder why Judge Lambert suddenly forgot that.

Two major mistakes in two parallel proceedings, civil and criminal, against the same person?

A coincidence? 

In my opinion, there are just too many coincidences.

When all of those "errors" are on issues that would require to rule in favor of a woman who had the courage to sue a judge,  and when Judge Lambert keeps coming up with reasons (contrary to applicable law) as to why such relief should not be granted - the only reasonable explanation that a reasonable observer can come up with for such behavior of Judge Lambert is - the judge is trying to help out the police officer and to bury a woman who sued a judge.

And it appears that Judge Lambert should have had the decency of recusing from both cases long time ago.

Are Jewish litigants safe in courts of upstate New York?

Are immigrant litigants in general and Jewish litigants in particular safe in the courts of upstate New York?

I don't think so.

Why? 

A report was made to Judge Mulvey, the Chief Administrative Judge of the 6th Judicial District, that a certain court attendant, at a community event dedicated to safety of children, while registering a Jewish child, asked his parent whether the parent knew it was Hitler's birthday that day.

It happened in June, so it could not be Hitler's birthday, Hitler's birthday is April 20th (according to the parent's and my own search on the Internet).

So why did the court attendant ask that question?

To hurt a Jewish person?

To make him feel vulnerable?

Probably, both.  There is no other rational explanation as to what brought the court attendant to ask that question.

So what did Judge Robert Mulvey do when he was notified about the actions of the court attendant.

Did he remove that court attendant at least from the court proceedings of that Jewish litigant?

Not at all.

Two months after the complaint, that same court attendant was used by another judge, Judge Kevin M. Dowd, to intimidate the litigant for daring to make a motion to recuse against Judge Dowd.

Judge Dowd, according to the victim, put the court attendant in question, armed, behind the litigant's back and, after harassing the litigant enough, and after having the court attendant search the litigant's bag right in the judge's chambers, the judge recused and then ordered the armed Hitler-loving court attendant to get the Jewish litigant out of Judge Dowd's courthouse - he said "get him out of MY courthouse". 

The only "guilt" of the litigant was that he dared to make a motion to recuse Judge Dowd.

Judge Dowd does not own the courthouse.

The litigant had a right of access to that public building at any time during its business hours.

Yet, the same officer who was asking him about Hitler's birthday after registering his child's Jewish name, was ordered by Judge Dowd to remove him from the public building.

So, the question is - if Judge Mulvey did nothing to control behavior of the court attendant and to remove him from proceedings of a Jewish litigant whom the court attendant already attempted to intimidate, was it intentional?  Is Judge Mulvey anti-Semitic?

Is Judge Dowd anti-Semitic?

And, returning back to the initial question, are immigrant litigants in general and Jewish litigants in particular safe from harassment and intimidation based on their national and ethnic origins in our upstate courtrooms?

Judging by the behavior of Judges Mulvey and Dowd, and based on my own experience as an immigrant attorney and litigant, in front of these two judges and other upstate judges - I do not think so.

Labor market regulation and the rate of arrests, criminal charges and incarcerations raising interesting questions

According to a study I recently read, 30% of jobs in the U.S. are certified or licensed.

Another 33% of Americans, or 1 in 3, have criminal records that often, if not always, preclude them from getting a decent job.

Licensing and certification process practically excludes those who have a criminal record, so we can assume that the 33% of Americans with criminal record cannot apply for the 30% of the U.S. jobs, the ones that require licensing or certification.

That leaves 27% of Americans who neither have a criminal record nor are licensed or certified, to be employed in "regular" jobs not requiring a license or certification.

Out of those 27% an undisclosed amount may have arrest records that did not result in a conviction, but may still prevent gainful employment.

So, at the rate America, on the one hand, increasingly regulates the labor market and closes entry into increasing number of professions, and, on the other hand, at the rate the U.S. increasingly charges and incarcerates its citizens (while failing to charge and incarcerate its politicians known for having committed crimes, such as, for example, those responsible for the torture program), the country may be killing its own labor markets and efficiency of its economy.

Something the candidates for presidential elections should think about and answer to the voters as to how they are going to fix this problem.

Or, is the problem of increased incarceration artificially created, to create felony convictions in minority population and to thus block the minority votes?

And there is also this interesting issue - do courts ever think about problems with the American labor market when they "impute" income charging parents, often with a criminal record, with the obligation to get jobs which they cannot possibly get?  To keep the debtor's prisons filled?

Those busy and cranky judges and those pesky litigants

I hear often that judges are "busy", they are "frustrated", and, therefore, we the litigants (and their attorneys) should not take the judge's valuable time with lengthy pleadings.

In one of the CLE courses I recently had, the presenter of the course expressly called presenting to the court of all of the issues that an attorney can possibly raise on an appeal as a weakness and a receipt for failure, because the court will be discouraged to "read that all".

I refer you to my blog TL-DR ("too long, did not read"), where I touched on that issue before.

But, there is also these aspects to the problem of "busy and frustrated judges".

1/ who is whose servant - aren't judges public servants that serve the sovereign (the public) at the sovereign's pleasure during good behavior only, and isn't frustration at a litigant for raising all issues that present themselves in the record, the litigant's due process right and the judge's duty to review?

2/ a judge is not dragged into the judicial office by his hair or other bodily parts.  A judge comes there voluntarily, moreover, in New York a judge has to "win" a rigorous election campaign - and get funding for that campaign.  In New York, most judges must be lawyers with at least 10 years of experience.  10 years is more than enough to learn that court dockets are overcrowded and courts are understaffed.

If, knowing all that, an attorney runs for a judge, shouldn't he then deal with the inevitable time-constraints, overcrowded dockets, understaffed courts and associated stress levels without taking it out on litigants and their attorneys who have constitutional rights to due process, access to courts and impartial judicial review - and not by cranky judges who are "too busy" to provide a detailed review of all issues that the litigant wants to present to the court.

Otherwise, judicial review may not legitimately be called "an opportunity to be heard", right?

Once again on the oath of office of taxi drivers

Occupational licensing is rampant in this country.

According to one study, 30% of U.S. workforce is licensed or certified.

The study was recently referenced in a law review that was, in turn, relied upon by the U.S. Supreme Court in the case North Carolina State Board of Dental Examiners v. Federal Trade Commission, decided on February 25, 2015 and declining to give immunity to the State Board of Dental Examiners controlled by market participants, I wrote about that case earlier here.

The concept of occupational licensing is simple.

It is permission by the state to an individual to privately practice a certain profession, based on meeting certain requirements.

Once again, it is a permission for private practice.

It is not an application for appointment or election for a public office.

When occupational licenses are given to doctors, engineers, taxi drivers, they are not pronounced "officers" of a certain branch of the government.

Not so with attorneys.

When a private individual receives a license to practice law, he or she is also "sworn in" as an "officer of the court".

What does this oath of office mean?

Does it provide to the attorney absolute judicial immunity, as court personnel has?

Only to some of attorneys, such as prosecutors, whether civil or criminal, but not to private attorneys.

Actually, the embattled Judge Tormey (see here and here) has granted absolute judicial immunity for fraudulent acts during litigation to a private attorney, the same Jonathan S. Follender (who, in addition to his practice, is a justice in the Denning Town Court in Ulster County, New York) who was favored by Judges Eugene Peckam and Carl Becker, see my previous blog.

Yet, Judge Dowd quickly refused to recognize Judge Tormey's gift to his brother-in-arms Jonathan Follender as a binding precedent of the court, because recognizing it as a precedent would have invalidated the whole proceedings against my husband Mr. Neroni who Judge Dowd hates with a passion.

Judge Dowd actually reproached me for trying to present "dicta" as precedent.

Judge Dowd's refusal to apply Judge Tormey's gift to a private attorney-judge to all private attorneys is that Judge Tormey could choose, based on whatever powers he does not have, to give a one-time gift like that to his brother-in-arms, but that gift of new law cannot be equally applied to the rest of private attorneys, the mere mortals.

So, when private attorneys are sworn in as "officers of the court", does it mean the person actually holds a public office, or is it yet another pretense of the court system to use this pronouncement to require more from independent private attorneys?

The only time when the court recalls that a private attorney is "an officer of the court" is when the court wants to point out that the private attorney is "out of line" - for example, when you are criticizing a judge for misconduct.

An independent private attorney, especially the one who is not politically connected, must maintain in himself and in the public religious blind faith in the integrity of the courts while the courts, including judges and court personnel "enjoy" gave themselves absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS no matter what they do and are naturally not entitled to any trust at all because of that.

But a big question arises - Constitutions of most states prohibit individuals from holding more than one public office.

Yet, we know that lawyers, while all being officially designated as "officer of the court", are overpowering both the executive and the legislative branches of the state governments.

Is it a conflict of interest, should lawyers be cast out of executive and legislative branches of the government because all lawyers are "officers of the court" and cannot be trusted to control and impose "checks and balances" upon the branch of the government that they are (1) officers of, and (2) which controls their livelihood through licensing?

And the ultimate question - how can an attorney be appearing as an advocate in the same court that he or she is an officer of?

See once again my blog about the Appellate Division 4th Department's clerk of the court who stated in her recent letter to me that disciplinary prosecutors are actually employees of the court system, confirming to me what I asserted time and again, that attorney disciplinary proceeding is a mess of conflicts of interests where the three branches of the government have merged in a happy incest? 

What does appearing of "officers of the court" in courts they are officers of do to the court neutrality?

What does it do to independent advocacy?

Isn't it true that a court may not be an advocate?

Doesn't advocacy by court officers invalidates the very existence of advocacy and courts as they exist now in the U.S.?

And, if private individuals who simply want to practice their profession as lawyers and earn a living, must take an "oath of office" as "officers of the court" (without being paid as such), should we then push for oaths of office of all individuals who apply for occupational licenses?

An oath of office for taxi drivers, anyone?

The idea that officers of the court should not be members of the legislatures, that I developed in this blog, belongs to my friend Diane Gochin, of Pennsylvania, to whom I extend my appreciation.

The wonderful world of defaults through the eyes of the sighted Lady Justice

If you visit the courthouse of the Supreme Court of Chenango County, you will see a wonderful and poetically true image of Lady Justice in front of the chambers of Judge Kevin Dowd.

What is so interesting about the large wooden statue of the Lady Justice that is positioned under a glass cover in front of Judge Dowd's chambers in Norwich, NY?

It is sighted.  It has no traditional cover on her eyes.

And that is exactly the kind of justice meted out by Judge Dowd - he always takes into account the political status of the party and the party's attorney when rendering his decisions.  Without fail.

What does the Commission of Judicial Conduct does about it? What it does usually - which is nothing.

The interesting part though is that Judge Dowd is not alone in the "sighted" approach to justice.

I have reviewed court orders of the following judges pertaining to defaults:

Judge Carl F. Becker - O'Sullivan v. Hallock, Delaware County Supreme Court
Judge Molly R. Fitzgerald - Mokay v. Mokay, Delaware County Supreme Court
Judge John F. Lambert (transcript of a motion to reopen the default which was not properly served upon the opponent as ordered in the Order to Show Cause) - O'Sullivan v. Bowie, Delaware County Supreme Court
Judge Kevin M. Dowd - Mokay v. Mokay, Delaware County Supreme Court
Judge (retired) Eugene Peckham - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2007-280
Judge Carl F. Becker - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2011-884

What can I say?

When a party that the court likes defaults, and that is:

(1) parties in O'Sullivan v. Hallock who voted for Judge Becker and were represented by his buddy, now County Attorney and then Assistant County Attorney Porter Kirkwood, were forgiven a default in failure to raise affirmative defenses in standing;

(2) the police officer in O'Sullivan v. Bowie was forgiven his failure to serve Mrs. O'Sullivan with the motion papers in the way required by the Order to Show Cause signed by judge John F. Lambert of Otsego County;

(3) Judge Dowd has forgiven the default of the New York State Attorney General to oppose the Order to Show Cause for a subpoena duces tecum of their records, where no opposition and proof of service of the same was filed before the date and time of review of that motion;  Judge Dowd disregarded the default, accepted the "opposition in a letter" that was sent directly to his Chambers in Norwich instead of being filed in Delaware County Clerk's office, as required by law, with proof of service, and relied upon the "letter opposition" in denying relief to Defendant in Mokay v. Mokay.

(4) Judge Peckham (M & C Brothers, Inc. v. Torum, Index No. 2007-280) has forgiven to an attorney Jonathan S. Follender who was and is a judge of a local justice court, failure to file with the court proof of service of his own Order to Show Cause - and ruled against the attorney's opponents as if they were in default;

(5) Judge Carl F. Becker (M & C Brothers, Inc. v. Torum, Index No. 2011-884) has ruled that parties were in default, in favor of the same attorney Jonathan S. Follender who failed to serve the parties in accordance with the Order to Show Cause and failed to file proof of service before the returnable date of the Order to Show Cause.

In sharp contrast, Frederick J. Neroni who opposed the retired judge and son of a judge Robert Harlem (now late) and Richard Harlem,  was not forgiven failure to oppose legally insufficient arguments of the Plaintiffs in the Mokay v. Mokay matter.   Frederick J. Neroni's arguments at the motion hearing in opposition to the motion for a summary judgment were disregarded and a summary judgment against him was made because of his alleged default.   

That was the decision of Judge Molly Fitzgerald, a Supreme Court justice out of Binghamton, NY, since then supported by judges Carl Becker, Kevin Dowd and multiple judges in the Appellate Division, Third Judicial Department, U.S. District Court for the Northern District of New York and the U.S. Court of Appeals for the 2nd Circuit.

So, if you think that the Lady Justice in the Catskill mountains has a blindfold on her eyes preventing her from seeing the status of the party in order to equally apply the rule of law to everybody, think again, and come and look at the Lady Justice in front of Judge Dowd's Supreme Court chambers in Norwich.

The sighted Lady Justice is actually the true symbol of "justice" meted out in our neck of woods.

If you are not a governmental official, and if you are not represented by a politically connected attorney, your have a reason to be concerned about your chances in the local courts, no matter how right you may be and no matter how much the law may be in your favor.