Every attorney who regularly appears in front of a certain judge knows the judge's (and his law clerk's) little and not-so-little quirks.
A big quirk of Judge John F. Lambert (of Otsego County, but he is assigned all over the place, Delaware County included) is - conferences.
Remember, people pay from $150.00 an hour upwards to their attorneys to handle their cases. For many people this is a very serious financial burden.
Yet, Judge Lambert, in his pursuit of "resolutions" for both civil and criminal cases (in other words, in pursuit of settlements), conferences these cases to death, thus very possibly causing litigants to be drained of financial resources after conferences and leaving no financial resources to pay their attorney for the trial preparation and to go to trial.
Example # 1. Criminal cases.
A criminal case in the County Court in New York is pretty much streamlined procedure-wise - or at least, it should be.
There is an arraignment.
There is discovery.
There is an omnibus motion to be filed within 45 days of the arraignment, and a decision to be made by the court within 60 days of the returnable date of the motion.
There are motion hearings, if any were ordered by the court as a result of the motion.
There is a trial.
That's it.
Not in Judge Lambert's court.
The majority of appearances the Judge Lambert ORDERS for criminal defendants and their counsel to appear at (and if they do not appear, criminal defendants may be arrested and put in jail for non-appearance), are for conferences.
Even if the criminal defendants and their attorneys did not ask for conferences, and do not want to seek a plea bargain.
The judge still makes them appear at the conference, once again, at the threat of a disciplinary violation for the counsel and at the threat of a bench warrant for the defendant.
What happens at those conferences?
I've been to a number of them and I can tell you.
Attorneys only are being called in a succession into the judge's chambers.
The situation is grossly unfair because your client is not there, but the judge allows presence of police officers and representatives of probation department, all possible witnesses at the future proceedings.
Such conferences are important stages of criminal proceedings, yet, in Judge Lambert's court they are held off record and without the criminal defendant's presence.
It has been very recently reported to me that a criminal defendant asked the criminal defense counsel to NOT engage in conferences with Judge Lambert off record and without the defendant's presence, and the judge still did - as recently as this week.
In my view, this is a gross constitutional violation.
Not only there should be no resolution of a criminal case when the criminal defendant does not know what is discussed behind his back, but it is grossly inappropriate for the court to require the criminal defense counsel to come to court, and forcing the criminal defendant to pay for those trips, which ultimately may result in draining of the defendant's limited funds and inability to proceed to trial - which may be Judge Lambert's way of "attaining resolutions" of criminal cases, especially that conferences in Judge Lambert's court in criminal proceedings are called often, wthout any given reasons and without any apparent necessity for such conferences.
Example # 2. Civil cases.
If in criminal cases Judge Lambert at least "graces" the counsel only with his presence at the conferences, this does not happen in no-less numerous conferences called by Judge Lambert in civil cases.
In those cases, Judge Lambert's law clerk Mark Oursler handles such conferences.
Mark Oursler is not a bad guy - but he is known to be talking incessantly of his own personal interests during the conferences, and attorneys, even though they loathe the waste of time, are afraid to voice their objection against this practice, for fear of jeopardizing their clients' cases.
When I was at conferences with Mark Oursler, he usually talked about Russia - obviously, because I am Russian.
Mark Oursler did not appear to know much about Russia, but he discussed the Russian history trying to claim that he did know it. Mark Oursler was especially invigorated when two Russian attorneys were present at the same time - then he inevitably discussed Russia, and for a long time.
Conferences like that were held off record, and there is no way for the clients later on to verify what was discussed.
To tell Mark Oursler, politely or impolitely, to shut up and get down to business for which the court ORDERED attorneys and clients to drop other business and appear - was out of the question, once again, for fear of what would happen to your clients' case if you do tell Mark Oursler to get down to business.
From my conversations with other attorneys, I know that it is a regular practice, known by attorneys, for Mark Oursler to discuss his personal interests in conferences. Mark Oursler cannot by any stretch of imagination to be called stupid or not knowing court rules, the law, or rules of attorney ethics.
For sure, he knows what he is doing - and I am wondering whether the practice of conferencing civil cases to death, in the absence of clients, off record, while Mark Oursler discusses his personal interests - at a hefty cost to clients - is just a tactic to force "resolution" of cases, in other words, force settlements to clear Judge Lambert's calendar.
And that is for the Committee for Attorney Discipline and for the Commission for Judicial Conduct to investigate - if the will dare to do their jobs and investigate a judge and an attorney working for the judge.
After all - what is at stake? "Only" constitutional rights of litigants that both Judge Lambert and attorney Oursler are sworn to protect.
Since nearly everybody in this country has been sworn to do something, and misconduct in office is rampant, meaning that sworn oaths of office do not mean much for a lot of people, constitutional rights of litigants are usually the last thing that such committees and commissions want to look at.
And that situation needs to be changed.
Thursday, June 18, 2015
Did Judge Dowd acknowledge his incompetence by raising the defense of absolute judicial immunity - based on Richard Harlem's legal viewpoint, he might have
In the ex parte secret Mokay trial, Richard Harlem was testifying as a witness as to the legal fees of his two law firms that he claimed as the only damages for the plaintiffs (by the way, plaintiffs' presence was not noted on record).
Richard Harlem claims that by raising the defense of absolute judicial immunity, which was just granted to another attorney in the same Delaware County Supreme Court, Mr. Neroni somehow acknowledged misconduct.
That statement says a lot about competence, or rather, incompetence of Richard Harlem who apparently does not distinguish between juridictional defenses and arguments on the merits of a case.
Yet, when applied to judges who routinely claim absolute judicial immunity when sued for civil rights violations, that would then mean that judges acknowledge misconduct alleged in the court actions against them by raising that defense?
And, since Judge Dowd was sued by Mr. Neroni in a pro se civil action (dismissed based on absolute judicial immunity rasied by Judge Dowd), Judge Dowd acknowledged his misconduct that Mr. Neroni sued him for by raising that defense?
It is interesting how Judge Dowd will rule on this new rule formulated by Richard Harlem - when you raise a jurisdictional defense, you acknowledge allegations in the complaint on the merits.
Looks like Richard Harlem would benefit from another trip to law school, for an extended period of time.
He was claiming, as damages, legal fees in "having to oppose" a motion that I made on behalf of Mr. Neroni - asking the court to apply the newly created precedent from the case where I sued an attorney for defamation, fraud and fraud upon the court.
In that case, the same court (another judge), Delaware County Surpeme Court, has granted the private attorney absolute judicial immunity for deceitful acts during litigation.
That was exactly the same as Mr. Neroni was sued for.
Absolute judicial immunity is, as applied by all courts, a jurisdictional bar to the court proceedings.
In other words, if absolute judicial immunity applies, the courts consider such immunity as stripping the courts of jurisdiction, and the courts have no longer any authority to proceed with the action on the merits.
That is exactly what I asserted in the motion.
Here is Richard Harlem's comment about that in his testimony at the ex parte secret Mokay trial on April 7, 2015 which was held without my presence, when I was at home with a back injury, after having duly notified the court of that injury and after presenting to the court a doctor's note releasing me from work.
Richard Harlem claims that by raising the defense of absolute judicial immunity, which was just granted to another attorney in the same Delaware County Supreme Court, Mr. Neroni somehow acknowledged misconduct.
That statement says a lot about competence, or rather, incompetence of Richard Harlem who apparently does not distinguish between juridictional defenses and arguments on the merits of a case.
Yet, when applied to judges who routinely claim absolute judicial immunity when sued for civil rights violations, that would then mean that judges acknowledge misconduct alleged in the court actions against them by raising that defense?
And, since Judge Dowd was sued by Mr. Neroni in a pro se civil action (dismissed based on absolute judicial immunity rasied by Judge Dowd), Judge Dowd acknowledged his misconduct that Mr. Neroni sued him for by raising that defense?
It is interesting how Judge Dowd will rule on this new rule formulated by Richard Harlem - when you raise a jurisdictional defense, you acknowledge allegations in the complaint on the merits.
Looks like Richard Harlem would benefit from another trip to law school, for an extended period of time.
Readers Digests for judge Kevin Dowd
I received the transcript of the Mokay trial that was held in an ex parte and secret manner on April 7, 2015 - see my blog posts from end March and beginning of April on the topic.
There are many interesting things to report from the transcript, and I will run several blog posts about how that ex parte secret trial was held.
Before I go into any in-depth analysis though, it is interesting to mention that trial counsel for the plaintiffs in the Mokay case considered it necessary to give Judge Dowd summaries of pleadings that they claimed to be the basis of their claim of damages (wholly consisting of legal fees of Harlem & Harlem and Harlem & Jervis law offices).
Richard Harlem, in his sworn testimony, called one such summary a "Readers' Digest" version of what he is going to testify about (Richard Harlem's words, not mine).
Richard Harlem also calls the "Readers Digest" summaries of what he was testifying about as "posters":
The "posters" summarized the "legal activitity" of the Harlem & Harlem and then Harlem & Jervis law firm in the Mokay case.
Of course, given the level of misconduct of Richard Harlem, his father and their law firms in the Mokay case that I already wrote about and that I am going to write about based on the transcript that I received, activity of Harlem & Harlem and Harlem & Jervis law firm can hardly be called "legal"...
Richard Harlem claimed that the charts ("posters") of his two law firms' "legal activity" in the Mokay case will assist the court in "following" his testimony.
Apparently, Judge Dowd needs "Readers Digest" version of pleadings to follow the testimony at trial, and attorneys who know the judge know it.
The judge was appreciative, and, as the scan above shows, received the "Readers Digests" into evidence without question.
The judge was, in fact, so appreciative of Richard Harlem's efforts that at the end of trial, when Richard Harlem acknowledged that he failed to provide to the court what he is asking for in treble damages, the court humbly requested Richard Harlem to, please, provide the breakdown of what he is asking AFTER the trial, and apologized to Richard Harlem for inconveniencing him.
I will remind the readers that Judge Kevin Dowd is the judge who ranted about somebody building a urinal in his honor during discussion of custody and visitation of a child in divorce proceedings, so he may be completely off upstairs.
Evidently, Judge Dowd needs "Readers Digest" versions of the testimony to be able to comprehend and follow it, and attorneys who know him openly state that on record.
And this is the judge who holds in his hands property rights, custody rights of children and liberty of litigants appearing in front of him.
If that is not a condemnation of the farce that the New York judicial system has become, I do not know what is.
There are many interesting things to report from the transcript, and I will run several blog posts about how that ex parte secret trial was held.
Before I go into any in-depth analysis though, it is interesting to mention that trial counsel for the plaintiffs in the Mokay case considered it necessary to give Judge Dowd summaries of pleadings that they claimed to be the basis of their claim of damages (wholly consisting of legal fees of Harlem & Harlem and Harlem & Jervis law offices).
Richard Harlem, in his sworn testimony, called one such summary a "Readers' Digest" version of what he is going to testify about (Richard Harlem's words, not mine).
Richard Harlem also calls the "Readers Digest" summaries of what he was testifying about as "posters":
The "posters" summarized the "legal activitity" of the Harlem & Harlem and then Harlem & Jervis law firm in the Mokay case.
Of course, given the level of misconduct of Richard Harlem, his father and their law firms in the Mokay case that I already wrote about and that I am going to write about based on the transcript that I received, activity of Harlem & Harlem and Harlem & Jervis law firm can hardly be called "legal"...
Richard Harlem claimed that the charts ("posters") of his two law firms' "legal activity" in the Mokay case will assist the court in "following" his testimony.
Apparently, Judge Dowd needs "Readers Digest" version of pleadings to follow the testimony at trial, and attorneys who know the judge know it.
The judge was appreciative, and, as the scan above shows, received the "Readers Digests" into evidence without question.
The judge was, in fact, so appreciative of Richard Harlem's efforts that at the end of trial, when Richard Harlem acknowledged that he failed to provide to the court what he is asking for in treble damages, the court humbly requested Richard Harlem to, please, provide the breakdown of what he is asking AFTER the trial, and apologized to Richard Harlem for inconveniencing him.
I will remind the readers that Judge Kevin Dowd is the judge who ranted about somebody building a urinal in his honor during discussion of custody and visitation of a child in divorce proceedings, so he may be completely off upstairs.
Evidently, Judge Dowd needs "Readers Digest" versions of the testimony to be able to comprehend and follow it, and attorneys who know him openly state that on record.
And this is the judge who holds in his hands property rights, custody rights of children and liberty of litigants appearing in front of him.
If that is not a condemnation of the farce that the New York judicial system has become, I do not know what is.
Saturday, June 6, 2015
NYS Appellate Division Third Department legalizes ex parte motions
I've written on this blog already about the illegal way of how my disciplinary case was transferred from the Appellate Division Third Judicial Department to the Appellate Division Fourth Judicial Department.
I've written on this blog that I was never served with the "application" for that ex parte order of transfer, that the "application" was never transferred with the rest of the court record to the transferee court, Appellate Division Fourth Department, and that the Appellate Division Third Department adamantly refuses to provide to me access to that particular portion of the court record, while Appellate Division Fourth Department proceeds (without authority) on an incomplete record.
This is a response to my motion - denied, no explanation given.
Not good enough.
The motion was based upon my affirmation, the court has no proof of service of the "application and papers filed in support" of the application, there was no opposition to my motion, so the court had a legal obligation to follow the law and to grant my motion by default and as a matter of law.
Moreover, I asked for sanctions for frivolous conduct against the attorneys and the attorney disciplinary committee of the Third Department who admittedly made an ex parte motion.
Yet, this is not how the Third Department operates.
The Third Department participated in misconduct, decided an illegal ex parte motion made by the 3rd Department attorney disciplinary committee, then recused from my disciplinary case - and yet sticks like glue to my other cases, despite a well established rule - a judge recuses from one case involving a party, there must be a recusal from all other cases, because the judge's impartiality may already reasonably be questioned.
Now the Third Department refused to grant sanctions for making an ex parte motion - which motion was UNOPPOSED and was supposed to be granted BY DEFAULT. Nothing like protecting the disciplinary committee - which means bias - which means the court should not have even been reviewing and deciding this motion because of its obvious involvement in misconduct described in the motion, the actual reason for the motion.
The Third Department positioned itself as an arbitrary ruler who is above the law because - guess what - what are my chances that the 3rd Department's decision will be overturned on appeal in the NYS Court of Appeals and that my petition for certiorari will be granted by the U.S. Supreme Court - right, the chances are negligibly small.
Therefore, the Third Department can adamantly and obnoxiously flaunt in my face a decision, without an explanation, reasoning or legal grounds, an illegal and unconstitutional decision saying - here, what can you do about it - nothing?
In fact, I can do something.
First, I can write about it and I can contribute to the growing awareness of corruption and open and adamant misconduct and incompetence in courts throughout this state and this country, on all levels.
Second, since I consider such a decision, especially in view of what kind of motion is denied without an explanation, and what kind of circumstances were the basis for the motion - as adamant, obnoxious, unlawful and unconstitutional.
The court must at the very least provide legal grounds upon which such motions are denied, if they are denied. It is a litigant's due process right, and I will be asserting it by available legal means - and some legal means, believe it or not, are still available to me.
What the court did instead is that it created a self-serving precedent legalizing what constitutes both attorney misconduct and judicial misconduct - an ex parte motion made by a party, reviewed and decided by the court, and where the court and the party continue to refuse, for a year now, to release papers upon which the order was based and which are clearly identified in that order.
Stay tuned as to how the situation develops.
I've written on this blog that I was never served with the "application" for that ex parte order of transfer, that the "application" was never transferred with the rest of the court record to the transferee court, Appellate Division Fourth Department, and that the Appellate Division Third Department adamantly refuses to provide to me access to that particular portion of the court record, while Appellate Division Fourth Department proceeds (without authority) on an incomplete record.
This is a response to my motion - denied, no explanation given.
Not good enough.
The motion was based upon my affirmation, the court has no proof of service of the "application and papers filed in support" of the application, there was no opposition to my motion, so the court had a legal obligation to follow the law and to grant my motion by default and as a matter of law.
Moreover, I asked for sanctions for frivolous conduct against the attorneys and the attorney disciplinary committee of the Third Department who admittedly made an ex parte motion.
Yet, this is not how the Third Department operates.
The Third Department participated in misconduct, decided an illegal ex parte motion made by the 3rd Department attorney disciplinary committee, then recused from my disciplinary case - and yet sticks like glue to my other cases, despite a well established rule - a judge recuses from one case involving a party, there must be a recusal from all other cases, because the judge's impartiality may already reasonably be questioned.
Now the Third Department refused to grant sanctions for making an ex parte motion - which motion was UNOPPOSED and was supposed to be granted BY DEFAULT. Nothing like protecting the disciplinary committee - which means bias - which means the court should not have even been reviewing and deciding this motion because of its obvious involvement in misconduct described in the motion, the actual reason for the motion.
The Third Department positioned itself as an arbitrary ruler who is above the law because - guess what - what are my chances that the 3rd Department's decision will be overturned on appeal in the NYS Court of Appeals and that my petition for certiorari will be granted by the U.S. Supreme Court - right, the chances are negligibly small.
Therefore, the Third Department can adamantly and obnoxiously flaunt in my face a decision, without an explanation, reasoning or legal grounds, an illegal and unconstitutional decision saying - here, what can you do about it - nothing?
In fact, I can do something.
First, I can write about it and I can contribute to the growing awareness of corruption and open and adamant misconduct and incompetence in courts throughout this state and this country, on all levels.
Second, since I consider such a decision, especially in view of what kind of motion is denied without an explanation, and what kind of circumstances were the basis for the motion - as adamant, obnoxious, unlawful and unconstitutional.
The court must at the very least provide legal grounds upon which such motions are denied, if they are denied. It is a litigant's due process right, and I will be asserting it by available legal means - and some legal means, believe it or not, are still available to me.
What the court did instead is that it created a self-serving precedent legalizing what constitutes both attorney misconduct and judicial misconduct - an ex parte motion made by a party, reviewed and decided by the court, and where the court and the party continue to refuse, for a year now, to release papers upon which the order was based and which are clearly identified in that order.
Stay tuned as to how the situation develops.
NYS Court Administration is playing game with a FOIL request - as usual
This is my FOIL request that I've sent on May 13, 2015.
The FOIL request clearly and unambiguously requests copies of orders of appointment of a RETIRED judge Robert Harlem, over the period of 1999 to 2012 (his death) as a:
Retired judges are appointed as judicial hearing officers, referees, arbiters etc.
This is the response of the NYS Court Administration that I received today as to my FOIL request specifically about retired Judge Robert Harlem:
In the portion of the letter dedicated to my FOIL request regarding orders of appointment of retired judge Robert Harlem, Assistant Deputy Counsel Shawn Kerby "advises me" that the NYS Court Administration has "no responsive records, as Justice Harlem retired, effective June 1, 1991".
I simply cannot believe that from "Justice Harlem" was not appointed in any capacity from 1999 to 2012 as a judicial hearing officer, referee, arbiter or the like capacity.
Moreover, that was exactly why I made the FOIL request, BECAUSE "justice Harlem" retired, and because retired justices are routinely appointed by the NYS Court Administration as referees in, let's say, foreclosure proceedings, or as judicial hearing officers in various courts.
It appears that the NYS OCA did not read the FOIL, or did not want to respond to it truthfully, and, because of it, declined to produce records of orders of appointment of a RETIRED judge because he was a - guess what - a retired judge.
Not good enough.
I am filing an appeal for constructive denial of the FOIL request. Stay tuned as to the results.
The FOIL request clearly and unambiguously requests copies of orders of appointment of a RETIRED judge Robert Harlem, over the period of 1999 to 2012 (his death) as a:
- judicial hearing officer;
- referee, or
- in any other capacity
Retired judges are appointed as judicial hearing officers, referees, arbiters etc.
This is the response of the NYS Court Administration that I received today as to my FOIL request specifically about retired Judge Robert Harlem:
In the portion of the letter dedicated to my FOIL request regarding orders of appointment of retired judge Robert Harlem, Assistant Deputy Counsel Shawn Kerby "advises me" that the NYS Court Administration has "no responsive records, as Justice Harlem retired, effective June 1, 1991".
I simply cannot believe that from "Justice Harlem" was not appointed in any capacity from 1999 to 2012 as a judicial hearing officer, referee, arbiter or the like capacity.
Moreover, that was exactly why I made the FOIL request, BECAUSE "justice Harlem" retired, and because retired justices are routinely appointed by the NYS Court Administration as referees in, let's say, foreclosure proceedings, or as judicial hearing officers in various courts.
It appears that the NYS OCA did not read the FOIL, or did not want to respond to it truthfully, and, because of it, declined to produce records of orders of appointment of a RETIRED judge because he was a - guess what - a retired judge.
Not good enough.
I am filing an appeal for constructive denial of the FOIL request. Stay tuned as to the results.
Judicial immunity has been rendered illegal by congressional enactment - and courts pretend not to notice while protecting their own?
It has been bothering me, as a civil rights attorney, that civil rights litigation involving ongoing, clear and egregious constitutional violations by judges are given a runaround by courts.
Between my own litigation experience as a civil rights attorney and my husband's pro se litigation experience as to lawsuits against judges, even without any requests for money damages, but simply for declaratory and prospective injunctive relief, it appeared to me that in this country a remedy for a constitutional violation by a judge is simply unavailable.
The concept of judicial immunity is stretched by the courts to cover any conduct of the judge.
Moreover, whenever you ask for prospective injunctive relief for clearest and most egregious constitutional violations, defendant judges, at the very same time, raise two defenses (in addition to others):
1) the defense of absolute judicial immunity which courts now deem to be an absolute jurisdictional bar from suit for any purpose, including declaratory and injunctive relief;
2) statutory, under 42 U.S.C. 1982, as amended and stating that injunctive relief against a judge sued in his official capacity is prohibited "unless a declaratory decree was violated or declaratory relief was unavailable".
What is wrong with the picture of coexistence of absolute judicial immunity, the way it has been created and interpreted nowadays, and the text of the Civil Rights Act, as relatively recently amended by the U.S. Congress?
Everything is wrong with such a co-existence, and illegality of the concept and modern days' application of judicial immunity by state and federal courts becomes apparent from reading the text of the Civil Rights Act and applying to it elementary rules of statutory construction.
The full text of 42 U.S.C. 1983 as it currently exists is as follows:
The U.S. Supreme Court unlawfully invented absolute judicial immunity for malicious and corrupt acts on the bench in 1978 (Stump v Sparkman), despite its own claim that it has no authority to set public policy, and that it is a prerogative belonging only to the U.S. Congress:
"We do not have a license to establish immunities from
Section 1983 actiona in the interests of what we judge to
be sound public policy. It is for Congress to determine
whether Section 1983 litigation has become
too burdensome to state or federal institutions and,
if so, what remedial action is appropriate",
Tower v Glover, 104 S. Ct. 2820, 2826 (1984).
(see also my blog about immunities and lack of authority of the U.S. Supreme Court to amend the Civil Rights Act at all, or as a matter of public policy).
The Civil Rights Act, 42 U.S.C. 1983 is mainly a statute allowing private individuals, victims of unconstitutional conduct of public officials, to sue those officials (and governmental entities) mainly for money damages, because injunctions go only into the future and do not redress an injury that was already caused to the victim of unconstitutional conduct.
The Civil Rights Act, as amended by the U.S. Congress, in its current version, prohibits to sue a judicial officer for actions in his judicial capacity "unless a declaratory decree was violated or declaratory relief was unavailable".
As to statutory interpretation, the U.S. Supreme Court already stated that it has no authority to create law based on considerations of public policy - it is the prerogative of the U.S. Congress.
Second, the Civil Rights Act has been enacted under the 14th Amended as the enabling portion of the U.S. Constitution, and as such, must be liberally construed to promote its intended remedies.
Third, since the statute itself must be liberally construed to promote its intended goals and remedies, exceptions to the statute must be, instead, narrowly construed and, if strictly enumerated, those exceptions and no other, should be strictly adhered to.
I have been taught in law school that when a remedial statute has a list of enumerated exceptions, that list is exhaustive, and courts have no authority to legislate and amend the statute and extend its enumerated list of exceptions through "interpretation".
Moreover, federal courts are courts of limited jurisdiction, and Article III of the U.S. Constitution dues not allow federal courts to legislate. Not that the courts care to stick to their restricted authority (and oath of office to protect the U.S. Constitution) when liability of judges is involved.
Unlawful and self-serving amendment of the Civil Rights Act through interpretation is exactly what is happening in civil rights litigation across the country.
If the rules of statutory construction are applied to the text of the Civil Rights Act, quoted above, first, the fact that the U.S. Congress could, but did not include a prohibition on suing judges for money damages, such a prohibition does not exist. The list of statutory exceptions is in the statute and is exhaustive.
Second, the statutory language of 42 U.S.C. 1983 indicates that an action for declaratory relief against a judge is not prohibited in federal court either.
Had the U.S. Congress contemplated a "jurisdictional bar" to all actions against judges, including actions for declaratory relief, the statute would not be even speaking about declaratory decrees or unavailability of declaratory relief as an option that triggers availability of injunctive relief against a judge.
Yet, all courts at this time are treating the unlawful judge created amendment to the Civil Rights Act, the absolute judicial immunity, as a "jurisdictional bar" to civil rights actions against judges as "established law" and sanction attorneys and litigants for as much as even trying to point out the obvious, that the doctrine of absolute judicial immunity is unconstitutional and unconstitutionally applied.
The only reason for such persistent, systematic and concerted unlawful behavior by the country's judiciary, as I see it, is because judges invented the concept of judicial immunity to protect themselves and members of their class - and do not care whether they are breaking the law or not, as long as they are protected by their law-breaking conduct.
And that situation, ladies and gentlemen, needs to be changed.
Between my own litigation experience as a civil rights attorney and my husband's pro se litigation experience as to lawsuits against judges, even without any requests for money damages, but simply for declaratory and prospective injunctive relief, it appeared to me that in this country a remedy for a constitutional violation by a judge is simply unavailable.
The concept of judicial immunity is stretched by the courts to cover any conduct of the judge.
Moreover, whenever you ask for prospective injunctive relief for clearest and most egregious constitutional violations, defendant judges, at the very same time, raise two defenses (in addition to others):
1) the defense of absolute judicial immunity which courts now deem to be an absolute jurisdictional bar from suit for any purpose, including declaratory and injunctive relief;
2) statutory, under 42 U.S.C. 1982, as amended and stating that injunctive relief against a judge sued in his official capacity is prohibited "unless a declaratory decree was violated or declaratory relief was unavailable".
What is wrong with the picture of coexistence of absolute judicial immunity, the way it has been created and interpreted nowadays, and the text of the Civil Rights Act, as relatively recently amended by the U.S. Congress?
Everything is wrong with such a co-existence, and illegality of the concept and modern days' application of judicial immunity by state and federal courts becomes apparent from reading the text of the Civil Rights Act and applying to it elementary rules of statutory construction.
The full text of 42 U.S.C. 1983 as it currently exists is as follows:
42 U.S. Code § 1983 - Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The U.S. Supreme Court unlawfully invented absolute judicial immunity for malicious and corrupt acts on the bench in 1978 (Stump v Sparkman), despite its own claim that it has no authority to set public policy, and that it is a prerogative belonging only to the U.S. Congress:
"We do not have a license to establish immunities from
Section 1983 actiona in the interests of what we judge to
be sound public policy. It is for Congress to determine
whether Section 1983 litigation has become
too burdensome to state or federal institutions and,
if so, what remedial action is appropriate",
Tower v Glover, 104 S. Ct. 2820, 2826 (1984).
(see also my blog about immunities and lack of authority of the U.S. Supreme Court to amend the Civil Rights Act at all, or as a matter of public policy).
The Civil Rights Act, 42 U.S.C. 1983 is mainly a statute allowing private individuals, victims of unconstitutional conduct of public officials, to sue those officials (and governmental entities) mainly for money damages, because injunctions go only into the future and do not redress an injury that was already caused to the victim of unconstitutional conduct.
The Civil Rights Act, as amended by the U.S. Congress, in its current version, prohibits to sue a judicial officer for actions in his judicial capacity "unless a declaratory decree was violated or declaratory relief was unavailable".
As to statutory interpretation, the U.S. Supreme Court already stated that it has no authority to create law based on considerations of public policy - it is the prerogative of the U.S. Congress.
Second, the Civil Rights Act has been enacted under the 14th Amended as the enabling portion of the U.S. Constitution, and as such, must be liberally construed to promote its intended remedies.
Third, since the statute itself must be liberally construed to promote its intended goals and remedies, exceptions to the statute must be, instead, narrowly construed and, if strictly enumerated, those exceptions and no other, should be strictly adhered to.
I have been taught in law school that when a remedial statute has a list of enumerated exceptions, that list is exhaustive, and courts have no authority to legislate and amend the statute and extend its enumerated list of exceptions through "interpretation".
Moreover, federal courts are courts of limited jurisdiction, and Article III of the U.S. Constitution dues not allow federal courts to legislate. Not that the courts care to stick to their restricted authority (and oath of office to protect the U.S. Constitution) when liability of judges is involved.
Unlawful and self-serving amendment of the Civil Rights Act through interpretation is exactly what is happening in civil rights litigation across the country.
If the rules of statutory construction are applied to the text of the Civil Rights Act, quoted above, first, the fact that the U.S. Congress could, but did not include a prohibition on suing judges for money damages, such a prohibition does not exist. The list of statutory exceptions is in the statute and is exhaustive.
Second, the statutory language of 42 U.S.C. 1983 indicates that an action for declaratory relief against a judge is not prohibited in federal court either.
Had the U.S. Congress contemplated a "jurisdictional bar" to all actions against judges, including actions for declaratory relief, the statute would not be even speaking about declaratory decrees or unavailability of declaratory relief as an option that triggers availability of injunctive relief against a judge.
Yet, all courts at this time are treating the unlawful judge created amendment to the Civil Rights Act, the absolute judicial immunity, as a "jurisdictional bar" to civil rights actions against judges as "established law" and sanction attorneys and litigants for as much as even trying to point out the obvious, that the doctrine of absolute judicial immunity is unconstitutional and unconstitutionally applied.
The only reason for such persistent, systematic and concerted unlawful behavior by the country's judiciary, as I see it, is because judges invented the concept of judicial immunity to protect themselves and members of their class - and do not care whether they are breaking the law or not, as long as they are protected by their law-breaking conduct.
And that situation, ladies and gentlemen, needs to be changed.
Friday, June 5, 2015
Trial rules of Judge Philip Rumsey. Will attorney Dolores Fogarty and Judge Philip Rumsey be disciplined for their egregious misconduct against a pro se party in litigation?
It was reported to me that Judge Philip Rumsey, of Cortland County Supreme Court (and any court Judge Rumsey is assigned to - the case described has been reported to me out of Chenango County) has the following novel rules in divorce proceedings that New York practitioners and party litigants may need to be aware of:
1) Judge Rumsey can schedule and conduct a trial where no trial note of issue has been filed or served by the party requesting the trial. Dolores Fogarty, attorney for the Plaintiff, did not file a trial note of issue, but the trial on behalf of her client was still commenced by Judge Rumsey - without authority to do so;
2) discovery in Judge Rumsey's court proceeds during the trial of divorce proceedings continue (even though New York law requires that the party filing the trial note of issue must state under oath that discovery has been completed at the time the trial note of issue is filed, and a trial MAY NOT commence without such a trial note of issue being filed and served); Dolores Fogarty, filed (finally) the trial note of issue where she stated that discovery is complete - at the same time as she filed what is supposed to be a PRE-TRIAL motion to compel continuing discovery, and such a pre-trial motion to compel MUST be, in accordance to court rules, preceded by several good faith efforts to ensure compliance with discovery, and evidence of such good faith efforts MUST be provided to the court - Ms. Fogarty did none of that;
3) Judge Rumsey allows some attorneys to replace Judge Rumsey in issuing judicial supboenas duces tecum for public records (which can be done as a matter of law only by a judge and only by motion on notice to all parties and to the custodian of the public records) - while continuing to claim that he is not biased in favor of such attorneys and their clients; see below the published copy of Ms. Fogarty's judicial subpoena duces tecum upon a public official signed by Ms. Fogarty alone - and, according to Mr. Shtrauch, endorsed by judge Rumsey;
4) Judge Rumsey denies interim relief (spousal maintenance, attorney fees, expert fees) to non-moneyed pro se indigent parties in divorce proceedings where the indigence of the non-moneyed party, as well as the lucrative employment of the moneyed party are obvious, and where expert valuation of assets is necessary, despite having ample proof of the parties' income through the multi-page notarized statements of net worth on file with the court. Judge Rumsey did that to Mr. Shtrauch, even though New York statute requires to grant interim relief to non-monied spouses in divorce litigation as a matter of right.
5) Judge Rumsey allows oral motions for frivolous conduct by attorneys against pro se parties. According to Mr. Shtrauch, Judge Rumsey allowed an oral motion for frivolous conduct against him made by Ms. Fogarty in court and gave him about 3 or 4 days to consider the "motion" - obviously, Mr. Shtrauch had to memorize Ms. Fogarty's "motion" to oppose it.
6) Judge Rumsey decides motions and cross-motions "asynchronically" - motions by attorneys are granted immediately while Judge Rumsey do not have time to review and decide at the same time cross-motions by pro se parties claiming (well documented) attorney misconduct of opposing counsel. Mr. Shtrauch indicated to me that Judge Rumsey granted Ms. Fogarty's motion to compel discovery during the trial, after Ms. Fogarty finally filed the note of issue stating in black and white that discovery was completed and even though Ms. Fogarty made no efforts to provide proof of her good faith efforts to ensure compliance with discovery - which means, if any non-compliance took place, Ms. Fogarty waived it and proceeded to trial.
7) Judge Rumsey never recuses himself as a point of principle when the previous judge recused on a motion from a party, no matter how warranted that recusal is. According to Mr. Shtrauch, Judge Rumsey stated to him in court that he will not be "forced" out of the case the way Mr. Shtrauch "forced" Judge Dowd out of the case.
In fact, Judge Dowd voluntarily recused from the case after Mr. Shtrauch's motion pointing out that Judge Dowd's law clerk was communicating with his children without his knowledge or consent, without knowledge or consent of the attorney for the child and outside of any court settings.
8) Judge Rumsey considers as "factors" in divorce litigation evidence submitted in previously dismissed cases - if such evidence is against the party who asked for the judge's recusal. According to Mr. Shtrauch, Judge Rumsey first was confused as to who Mr. Shtrauch was - a Plaintiff or a Defendant in litigation, because, event though Judge Rumsey was handling a trial where Mr. Shtrauch's spouse was the plaintiff and Mr. Shtrauch was the defendant, Judge Rumsey at the same time ruled (initially) that the previous discontinued divorce proceeding, where Mr. Shtrauch was the Plaintiff and Rebecca Shtrauch was the Defendant, were not discontinued correctly.
Judge Rumsey then ruled that the valuation of marital assets stopped accruing at the time the previous ("improperly" discontinued) divorce action started, and not when the present action started.
In the previous action, Rebecca Shtrauch did not file a counterclaim, and in the present action she is the Plaintiff and Mr. Shtrauch did file a counterclaim.
The discontinuance of the previous divorce action was recognized by the previously presiding judge Dowd - which did not deter Judge Rumsey from his ruling that, even though he is handling a trial for Rebecca Shtrauch as a plaintiff, he is considering that the previous case is still pending where Rebecca Shtrauch is a defendant - indicating that it is then Mr. Shtrauch who has a right during the trial to proceed first with his case, even though Judge Rumsey allowed Dolores Fogarty to proceed first.
When a motion to recuse Judge Rumsey and to dismiss the current action because, if the previous one is still legal, the current one may not be legal, Judge Rumsey relented and issued an order saying that, yes, the previous action was discontinued properly, but he will still consider orders issued in that discontinued and dismissed action as factors in litigation - for which, in my legal opinion, Judge Rumsey had no authority.
==
This case has been reported to me by Mr. Shtrauch, the victim of judicial misconduct and apparent misconduct by the attorney for the opposing counsel, Dolores Fogarty. Mr. Shtrauch gave me full permission to write about misconduct of Judge Rumsey and attorney Fogarty in court and to publish documents he provided to me.
Here is the latest shenanigan of Ms. Fogarty against a pro se party - a subpoena duces tecum for public records which the law requires to be a JUDICIAL subpoena duces tecum - that is, such a subpoena may only be obtained this way, according to New York state law - Civil Practice Law and Rules 2307:
He first learnt that any motion was filed by Mr. Wentworth when he came to trial and saw Mr. Wentworth there - while Mr. Wentworth's art in litigation was long concluded.
1) Judge Rumsey can schedule and conduct a trial where no trial note of issue has been filed or served by the party requesting the trial. Dolores Fogarty, attorney for the Plaintiff, did not file a trial note of issue, but the trial on behalf of her client was still commenced by Judge Rumsey - without authority to do so;
2) discovery in Judge Rumsey's court proceeds during the trial of divorce proceedings continue (even though New York law requires that the party filing the trial note of issue must state under oath that discovery has been completed at the time the trial note of issue is filed, and a trial MAY NOT commence without such a trial note of issue being filed and served); Dolores Fogarty, filed (finally) the trial note of issue where she stated that discovery is complete - at the same time as she filed what is supposed to be a PRE-TRIAL motion to compel continuing discovery, and such a pre-trial motion to compel MUST be, in accordance to court rules, preceded by several good faith efforts to ensure compliance with discovery, and evidence of such good faith efforts MUST be provided to the court - Ms. Fogarty did none of that;
3) Judge Rumsey allows some attorneys to replace Judge Rumsey in issuing judicial supboenas duces tecum for public records (which can be done as a matter of law only by a judge and only by motion on notice to all parties and to the custodian of the public records) - while continuing to claim that he is not biased in favor of such attorneys and their clients; see below the published copy of Ms. Fogarty's judicial subpoena duces tecum upon a public official signed by Ms. Fogarty alone - and, according to Mr. Shtrauch, endorsed by judge Rumsey;
4) Judge Rumsey denies interim relief (spousal maintenance, attorney fees, expert fees) to non-moneyed pro se indigent parties in divorce proceedings where the indigence of the non-moneyed party, as well as the lucrative employment of the moneyed party are obvious, and where expert valuation of assets is necessary, despite having ample proof of the parties' income through the multi-page notarized statements of net worth on file with the court. Judge Rumsey did that to Mr. Shtrauch, even though New York statute requires to grant interim relief to non-monied spouses in divorce litigation as a matter of right.
5) Judge Rumsey allows oral motions for frivolous conduct by attorneys against pro se parties. According to Mr. Shtrauch, Judge Rumsey allowed an oral motion for frivolous conduct against him made by Ms. Fogarty in court and gave him about 3 or 4 days to consider the "motion" - obviously, Mr. Shtrauch had to memorize Ms. Fogarty's "motion" to oppose it.
6) Judge Rumsey decides motions and cross-motions "asynchronically" - motions by attorneys are granted immediately while Judge Rumsey do not have time to review and decide at the same time cross-motions by pro se parties claiming (well documented) attorney misconduct of opposing counsel. Mr. Shtrauch indicated to me that Judge Rumsey granted Ms. Fogarty's motion to compel discovery during the trial, after Ms. Fogarty finally filed the note of issue stating in black and white that discovery was completed and even though Ms. Fogarty made no efforts to provide proof of her good faith efforts to ensure compliance with discovery - which means, if any non-compliance took place, Ms. Fogarty waived it and proceeded to trial.
7) Judge Rumsey never recuses himself as a point of principle when the previous judge recused on a motion from a party, no matter how warranted that recusal is. According to Mr. Shtrauch, Judge Rumsey stated to him in court that he will not be "forced" out of the case the way Mr. Shtrauch "forced" Judge Dowd out of the case.
In fact, Judge Dowd voluntarily recused from the case after Mr. Shtrauch's motion pointing out that Judge Dowd's law clerk was communicating with his children without his knowledge or consent, without knowledge or consent of the attorney for the child and outside of any court settings.
8) Judge Rumsey considers as "factors" in divorce litigation evidence submitted in previously dismissed cases - if such evidence is against the party who asked for the judge's recusal. According to Mr. Shtrauch, Judge Rumsey first was confused as to who Mr. Shtrauch was - a Plaintiff or a Defendant in litigation, because, event though Judge Rumsey was handling a trial where Mr. Shtrauch's spouse was the plaintiff and Mr. Shtrauch was the defendant, Judge Rumsey at the same time ruled (initially) that the previous discontinued divorce proceeding, where Mr. Shtrauch was the Plaintiff and Rebecca Shtrauch was the Defendant, were not discontinued correctly.
Judge Rumsey then ruled that the valuation of marital assets stopped accruing at the time the previous ("improperly" discontinued) divorce action started, and not when the present action started.
In the previous action, Rebecca Shtrauch did not file a counterclaim, and in the present action she is the Plaintiff and Mr. Shtrauch did file a counterclaim.
The discontinuance of the previous divorce action was recognized by the previously presiding judge Dowd - which did not deter Judge Rumsey from his ruling that, even though he is handling a trial for Rebecca Shtrauch as a plaintiff, he is considering that the previous case is still pending where Rebecca Shtrauch is a defendant - indicating that it is then Mr. Shtrauch who has a right during the trial to proceed first with his case, even though Judge Rumsey allowed Dolores Fogarty to proceed first.
When a motion to recuse Judge Rumsey and to dismiss the current action because, if the previous one is still legal, the current one may not be legal, Judge Rumsey relented and issued an order saying that, yes, the previous action was discontinued properly, but he will still consider orders issued in that discontinued and dismissed action as factors in litigation - for which, in my legal opinion, Judge Rumsey had no authority.
==
This case has been reported to me by Mr. Shtrauch, the victim of judicial misconduct and apparent misconduct by the attorney for the opposing counsel, Dolores Fogarty. Mr. Shtrauch gave me full permission to write about misconduct of Judge Rumsey and attorney Fogarty in court and to publish documents he provided to me.
Here is the latest shenanigan of Ms. Fogarty against a pro se party - a subpoena duces tecum for public records which the law requires to be a JUDICIAL subpoena duces tecum - that is, such a subpoena may only be obtained this way, according to New York state law - Civil Practice Law and Rules 2307:
- A written motion consisting of a proper notice of motion (or a signed Order to Show Cause) and of the supporting affidavit and other evidence upon which the records are sought, should be served upon all opposing parties and the custodian of the record (in this case, the court clerk);
- That same motion must be filed with the court.
- Service of the motion for a subpoena duces tecum on a public entity is set by statute. A private attorney has no authority to sign such subpoenas, it is clear abuse of subpoena power and attorney misconduct.
- All motions contesting such a subpoena, such as a motion to be served and for a protective order, have to be filed with the court and served upon the opposing party.
NONE of that happened.
Dolores Fogarty (an attorney representing a party who was so familiar with the previous judge's law clerk that her children were playing in the law clerk's house) simply substituted herself in place of the presiding judge and SIGNED what was mandated by law to be a JUDICIAL subpoena duces tecum.
Once again, attorney Fogarty is attempting to subpoena records of a public entity - here, the Public Defender's office, through a subpoena that could only be obtained, if New York state law was to be followed, through a motion for a subpoena duces tecum.
According to Mr. Shtrauch, Mr. Shtrauch's subpoenaed counsel from the previous stage of litigation (the custody stage, that concluded by that time), Mr. Zachary Wentworth, is a Facebook friend of the previous (recused) judge's law clerk.
Mr. Wentworth did file a motion to quash Ms. Fogarty's illegal subpoena duces tecum, but did not indicate the most important ground, that Ms. Fogarty did not have authority to issue such a subpoena in the first place.
Here is Mr. Wentworth's unsigned motion to quash that he gave Mr. Shtrauch at the time he already appeared in court, where Mr. Shtrauch had absolutely no time to address the "motion", not to mention that service of unsigned papers does not constitute valid service of a motion in the first place.
What Mr. Wentworth did say though was that in Chenango County Public Defender's office the routine is such that the court somehow allow the Public Defender's office to conduct an "eligibility interview" of people applying for an assigned counsel.
The interesting part is that the Public Defender in Chenango County is the brother-in-law of the previously recused Judge Dowd, which raises all kinds of issues pertaining to the appearance of impropriety of such an arrangement in this particular set of circumstances.
Mr. Wentworth neglected to serve his motion to quash on Mr. Shtrauch.
So, two written motions had to be served on Mr. Shtrauch, a pro se indigent party, a non-native speaker of English, and he had to be given an opportunity to respond to those motions.
Instead, he was served with exactly NONE of those motions.
He first learnt that any motion was filed by Mr. Wentworth when he came to trial and saw Mr. Wentworth there - while Mr. Wentworth's art in litigation was long concluded.
Mr Rumsey considered arguments of parties right then and there - despite the fact that no motions for a subpoena duces tecum were made and despite the fact that Ms. Fogarty clearly committed misconduct in usurping the judge's role in issuing such a supboena herself - and - guess what - granted Ms. Fogarty's right to proceed with her illegal subpoena duces tecum.
==
It is, all around - one big mess, and it looks to me that the reason why it is such a big mess is that Mr. Shtrauch is a foreign national (national of the state of Israel), his wife is a local, the wife and mother is close to Judge Dowd's law clerk's family to the point of having the children playing in the law clerk's home - without disclosure of these disqualifying events to the father, and the father dared to protest against that.
You cannot discriminate against a person more than Mr. Shtrauch was discriminated against.
He is pro se.
He is indigent.
English is not his Native language.
Not the judge, not the opposing counsel are taking any notice of all of that and, to me, proceed as if the law simply does not exist.
He is prevented from hiring an attorney because the court refused to give him interim relief that he is entitled to.
He is prevented from hiring experts he needs to evaluate the increase of earning capacity of his spouse who, according to Mr. Shtrauch, earned a college degree during the marriage, because he is denied interim relief.
Mr. Shtrauch, according to his statements to me, was laid off from his job and prevented from acquiring new job skills or looking for a new job by the order of the previous judge, Judge Dowd who - at the same time - required Mr. Shtrauch to watch the children for his wife from morning till night as a free daycare service - and pay child support in the amount that was many times more than the $25.00 per month that Judge Dowd could award, as a matter of law, against a parent whose income is, as Mr. Shtrauch's is, below the self-support reserve (135% of the federal poverty level).
Mr. Shtrauch is not given notices of motions.
The court allows the counseled plaintiff (who is apparently close to the previous recused judge's law clerk) to proceed to:
- proceed to a trial without filing or serving a trial note of issue;
- file the note of issue in the middle of the trial and not strike the testimony that was accepted by the court before such trial note of issue was filed;
- compel discovery while continuing the trial;
- allow Ms. Fogarty to act as if she is a judge, issuing judicial subpoenas duces tecum upon a public entity;
- allow Ms. Fogarty to make oral motions for frivolous conduct, which motions can only be done in writing and on notice to parties, with strict service requirements;
- review and grant Ms. Fogarty's motions that are not warranted by law or facts - to compel discovery during trial, without indicating that she made good faith efforts to ensure compliance with discovery (I've seen Ms. Fogarty's motion) while at the same time stating that the judge did not have time to even review Mr. Shtrauch's cross-motion - and then deny the cross-motion in its entirety in perfunctory manner, some time later.
I've never seen a divorce proceeding that would be such a mess.
The judge is obviously biased and should have stepped off the case long time ago.
Ms. Fogarty should have been disqualified off the case and sanctioned because of her continuing misconduct long time ago, yet, she continues to receive favors from judge Rumsey that are not warranted by law.
Is the judge bending over backwards to Ms. Fogarty - who is representing a private party - also because she is a public official, an assistant Public Defender for Otsego County?
I do have a question to the New York State Comptroller though as to the private practice of Ms. Fogarty - how is it possible that she can have assigned cases in counties other than Otesgo (and a lot of them), have a very busy private practice - at the very same time as she is a full-time employee of the Otsego County?
Of course, with county attorney Ellen Coccoma (same Otsego County) representing private clients during her taxpayer-paid time while being a full-time Otsego County employee, I guess, anything is possible.
My question is though - will any of the disciplinary authorities that must handle investigations of misconduct of judges and attorneyswake up and do their duties to protect Mr. Shtrauch from this ongoing misconduct?
Will NYS Comptroller investigate private practice of full-time employees in Otsego and Delaware Counties and nepotism in these counties and in the Chenango County eliminating the situations where the office of the recused judge's brother in law is reviewing eligibility of a party who asked for the recusal and is representing him in a way that may raise questions of the public defender's loyalty to his client?
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