I have written in this blog and in my other blog dedicated specifically to discrimination against pro se litigants in court, about various ways how courts may and do frequently discriminate against the poor, indigent and unpopular litigants.
Civil rights litigants, especially civil rights litigants suing judges are topping the lists of "unpopular" litigants.
Civil rights litigation is all but dead - with all the barriers invented by the trial-level and appellate-level courts to "clean their docket", or, in other words, get rid of civil rights cases without ever reviewing them on the merits.
More and more often, sanctions follow against civil rights plaintiffs, victims of unconstitutional conduct of government officials, for the mere fact of bringing a civil rights lawsuit - and that is where the court dismisses the case without reaching the merits, or, in other words, the court punishes a civil rights plaintiff while at the same time refusing to see whether what the civil rights plaintiff is saying about being the victim of unconstitutional conduct by a governmental official, is true or not.
Recently, a brand-new way to discriminate against civil rights litigants was revealed.
Legal research is a big effort and comes at a high price in preparation of any appeal. Civil rights litigants often proceed pro se, especially in cases where attorneys increasingly are afraid to take such appeals, for fear of sanctions "for frivolous" conduct.
Online law databases, such as Lexis Nexis and Westlaw require at least a year-long commitment and are prohibitively expensive.
Cheaper online legal resources are often inadequate.
A cheaper way to do legal research (for indigent and pro se clients) was, as far as I was told, to do free research of cases on the Internet, by key words, and, when key word search returns a case on point about a situation similar to what you have, to go to the federal governmental archive PACER.gov and retrieve the decision in the case, creating a precedent and quoting the law upon it relied.
PACER.gov, even though criticized for its cost of 10 cents per page which is more than the federal law allows to charge (the federal law only allows to charge enough money to maintain the retrieval system), is still much less than legal research will cost.
Law libraries in courthouses exist, but often they do not have federal cases, necessary for civil rights litigation, are not open every day, be located only in large courthouses far away from where an indigent person lives, requiring a civil rights litigant to invest in a car ride and gas, not to mention to lose a day at work, in order to do any kind of legal research in such a law library.
Well, now even a research through PACER will present a problem, because it has been recently reported that some seminal federal cases, necessary for civil rights litigants' appeals, will simply not be "available" through PACER - because many "old" and not-so-old court cases are being deleted from PACER without much fanfare.
I had an experience in trying to locate an old case in federal court not through PACER, because certain information required for PACER was lacking. From my communication with the court clerk, I understood that, possibly, the "hard-paper" archives might not even be in existence. I was not able to retrieve documents I wanted in that particular situation.
So - several questions arise in connection of cleansing court cases off PACER.
If such court cases, which were already decided, are not available on PACER - where and on what terms are they going to be available? What happened to the originals of pleadings? How can people look at them?
What will be the cost of such retrieval, not through PACER?
And, with the increasingly dropping prices in "cloud storage", why problems with PACER had to be resolved by blocking people's access to cases necessary for research instead of fixing the retrieval system?
Was it to make civil rights litigation even harder than it is now?
Sunday, August 31, 2014
There is no place for legal arguments in Family Court in New York - forget your pesky law when you are in a court of law?
Last week I was told by a Family Court judge that Family Court is "not Supreme Court", and that making "alternative legal arguments" in Family Court is the equivalent of lying.
I have a copy of the official court recording where the judge says that, to protect myself against allegations of "lying" - again.
Actually, raising ALL legal issues you can on behalf of a client is attorney's duty to preserve the record for a possible appeal - and failure to do that may be actionable as attorney malpractice.
But, in Family Court, a court which has limited jurisdiction and is governed exclusively by a statute (legal rules), too many legal arguments somehow amounts to lying. Of course, that "judicial opinion" is not supported by the Family Court Act.
Moreover, lying - by definition - is not telling the truth about FACTS. The distinction between facts and opinions is a basic distinction taught in elementary school. Apparently, the judge, with high school, college, law school and at least 10 years of practice, does not appear to understand this distinction.
Therefore, there may not be any "lying" in advancing legal opinions on behalf of a client, especially where at issue are fundamental constitutional parental rights.
To me, any judge who intimidates an attorney by the nonsense that her legal arguments are somehow lying should be disciplined.
I have a copy of the official court recording where the judge says that, to protect myself against allegations of "lying" - again.
Actually, raising ALL legal issues you can on behalf of a client is attorney's duty to preserve the record for a possible appeal - and failure to do that may be actionable as attorney malpractice.
But, in Family Court, a court which has limited jurisdiction and is governed exclusively by a statute (legal rules), too many legal arguments somehow amounts to lying. Of course, that "judicial opinion" is not supported by the Family Court Act.
Moreover, lying - by definition - is not telling the truth about FACTS. The distinction between facts and opinions is a basic distinction taught in elementary school. Apparently, the judge, with high school, college, law school and at least 10 years of practice, does not appear to understand this distinction.
Therefore, there may not be any "lying" in advancing legal opinions on behalf of a client, especially where at issue are fundamental constitutional parental rights.
To me, any judge who intimidates an attorney by the nonsense that her legal arguments are somehow lying should be disciplined.
Saturday, August 30, 2014
Oath of protection
I hear all the time about "sworn officers" and their "presumed" integrity - while at the same time, as an attorney working in criminal courts, in family courts, in federal courts in civil rights litigation, all I see is that police, prosecutors, social services, judges can do anything they want, with complete impunity, and no disciplinary rules, no criminal investigations, no rules of ethics, no civil lawsuits can reach them, no matter what kind of open, arrogant and blatant misconduct they commit.
Those "sworn officers", being it police officers, judicial officers, attorneys for the government or private attorneys (albeit "officers of the court") are, once again, "sworn" to protect the local laws, federal laws and the U.S. and the State Constitutions (in the state where they are in).
At the very same time, all kinds of "immunities" have been invented by courts, to the point that, for example, it is impossible to prosecute a judge even for malicious AND CORRUPT conduct while on the bench. I learnt the hard way (dismissal of federal lawsuits, with sanctions), that what constitutes "conduct ON the bench" somehow includes a lot of conduct OFF the bench, simply because federal judges are also judges and simply ignore pleadings stating that certain conduct was OFF the bench and, thus, is not covered by their elaborate self-given immunity.
Apparently, if you are a judge, ANYTHING you do is absolutely immune.
The same is for prosecutors - in their "prosecutorial" capacity.
As to "investigative capacity" of prosecutors - they are entitled to "qualified" immunity, which is nearly always found.
What concerns police officers - "qualified immunity" is deemed so broad that legal scholars claim that it is practically impossible to get accountability of police officers for using excessive force, to the point of killing people.
As a recent example, the U.S. Supreme Court has ruled that officers were covered by qualified immunity when:
1) they wanted to stop a motorist for a light that did not work;
2) the motorist took off speeding (a bad decision, but not entitling police officers to shoot to kill - wouldn't you think?);
3) the police chose no better than to engage in a high-speed chase, thus, in my humble opinion, PERPETUATING that chase - the speeder would not be speeding if they would not be speeding after him, and it was only because of one bad light on the car;
4) the police shot at the motorist SEVERAL TIMES - and finally killed the motorists.
The U.S. Supreme Court has ruled that the officer were covered by qualified immunity, because as "reasonable officers" they were - guess - extinguishing a public safety hazard, a high speed chase. Not by stopping - but by shooting to kill.
I absolutely "love" what the court said in the civil rights lawsuit against judges who were convicted in connection with the "Kids-for-Cash" scandal - I put it on top of this blog.
“Because the law requires that judges no matter how corrupt, who do not act
in the clear absence of jurisdiction while performing a judicial act, are immune
from suit, former Judge Ciavarella will escape liability for the vast majority of his '
conduct in this action. This is, to be sure, against the popular will,
but it is the very oath which he is alleged to have so indecently,
cavalierly, baselessly and willfully violated for personal gain
that requires this Court to find him immune from suit”,
District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al,
Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle
District of Pennsylvania, Document 336, page 18, November 20, 2009.
Think about it once again:
It is the OATH that a person is alleged to have VIOLATED FOR PERSONAL GAIN
that REQUIRES - THE COURT OF LAW - YOUR PUBLIC SERVANTS - TO ABSOLVE
OTHER PUBLIC SERVANT - WHO IS IN THE SAME CLASS OF
PUBLIC OFFICIALS AS THE PRESIDING JUDGE - to absolve
the possible VIOLATER OF CONSTITUTIONAL OATH -
FROM ANY - ANY - LIABILITY TO THE VICTIMS OF SUCH VIOLATIONS.
Is there anything as warped as this logic? And as lawless? And as self-serving?
Based on all the above, one inevitably comes to a conclusion that the so-called "constitutional oath of office" is simply a "trigger point of protection", because, in the opinion of Judge Caputo of the federal district court in Pennsylvania - it is! The oath TO UPHOLD THE CONSTITUTION is the basis of the conclusion that VIOLATING THAT OATH will not have any consequences to the person who took that oath, BECAUSE he took that oath.
Once again - this is a judge who HIMSELF has been sworn to uphold the Constitution. And the U.S. Constitution does not give permission to ANYBODY to violate it.
Obviously, the necessity to protect the judiciary as members of the same "corporation" is much stronger than the duties imposed by the oath of office.
The logic that the oath to uphold the U.S. Constitution is only a trigger of protection, and is meaningless otherwise, is so deeply entrenched in governmental - and judicial culture - that raising constitutional arguments in courts has become dangerous business, often leading to sanctions for "frivolous" conduct, especially if the claims of constitutional violations come against powerful governmental officials.
If oaths to UPHOLD the Constitution are only used to UHOLD VIOLATIONS of that same Constitution - do we really need the oaths of office?
Maybe, we need to eliminate all of them, as well as all immunities for violating them, and introduce clear and transparent system of duties and accountability for violating those duties for all public officials, with direct monitoring by the people - through, possibly, investigative grand jury power?
Since I do not see any other democratic mechanisms working to eliminate this perversity of justice, resurrection and empowering of investigative grand juries with criminal prosecutions of violators of public trust and state and federal laws and Constitutions should be in order.
And a legislative and, possible, constitutional reforms, on state and federal levels, are needed to implement that.
Otherwise, the so-called "rule of law" as it is now is truly a joke and is, in fact, the "rule of the few".
Those "sworn officers", being it police officers, judicial officers, attorneys for the government or private attorneys (albeit "officers of the court") are, once again, "sworn" to protect the local laws, federal laws and the U.S. and the State Constitutions (in the state where they are in).
At the very same time, all kinds of "immunities" have been invented by courts, to the point that, for example, it is impossible to prosecute a judge even for malicious AND CORRUPT conduct while on the bench. I learnt the hard way (dismissal of federal lawsuits, with sanctions), that what constitutes "conduct ON the bench" somehow includes a lot of conduct OFF the bench, simply because federal judges are also judges and simply ignore pleadings stating that certain conduct was OFF the bench and, thus, is not covered by their elaborate self-given immunity.
Apparently, if you are a judge, ANYTHING you do is absolutely immune.
The same is for prosecutors - in their "prosecutorial" capacity.
As to "investigative capacity" of prosecutors - they are entitled to "qualified" immunity, which is nearly always found.
What concerns police officers - "qualified immunity" is deemed so broad that legal scholars claim that it is practically impossible to get accountability of police officers for using excessive force, to the point of killing people.
As a recent example, the U.S. Supreme Court has ruled that officers were covered by qualified immunity when:
1) they wanted to stop a motorist for a light that did not work;
2) the motorist took off speeding (a bad decision, but not entitling police officers to shoot to kill - wouldn't you think?);
3) the police chose no better than to engage in a high-speed chase, thus, in my humble opinion, PERPETUATING that chase - the speeder would not be speeding if they would not be speeding after him, and it was only because of one bad light on the car;
4) the police shot at the motorist SEVERAL TIMES - and finally killed the motorists.
The U.S. Supreme Court has ruled that the officer were covered by qualified immunity, because as "reasonable officers" they were - guess - extinguishing a public safety hazard, a high speed chase. Not by stopping - but by shooting to kill.
I absolutely "love" what the court said in the civil rights lawsuit against judges who were convicted in connection with the "Kids-for-Cash" scandal - I put it on top of this blog.
“Because the law requires that judges no matter how corrupt, who do not act
in the clear absence of jurisdiction while performing a judicial act, are immune
from suit, former Judge Ciavarella will escape liability for the vast majority of his '
conduct in this action. This is, to be sure, against the popular will,
but it is the very oath which he is alleged to have so indecently,
cavalierly, baselessly and willfully violated for personal gain
that requires this Court to find him immune from suit”,
District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al,
Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle
District of Pennsylvania, Document 336, page 18, November 20, 2009.
Think about it once again:
It is the OATH that a person is alleged to have VIOLATED FOR PERSONAL GAIN
that REQUIRES - THE COURT OF LAW - YOUR PUBLIC SERVANTS - TO ABSOLVE
OTHER PUBLIC SERVANT - WHO IS IN THE SAME CLASS OF
PUBLIC OFFICIALS AS THE PRESIDING JUDGE - to absolve
the possible VIOLATER OF CONSTITUTIONAL OATH -
FROM ANY - ANY - LIABILITY TO THE VICTIMS OF SUCH VIOLATIONS.
Is there anything as warped as this logic? And as lawless? And as self-serving?
Based on all the above, one inevitably comes to a conclusion that the so-called "constitutional oath of office" is simply a "trigger point of protection", because, in the opinion of Judge Caputo of the federal district court in Pennsylvania - it is! The oath TO UPHOLD THE CONSTITUTION is the basis of the conclusion that VIOLATING THAT OATH will not have any consequences to the person who took that oath, BECAUSE he took that oath.
Once again - this is a judge who HIMSELF has been sworn to uphold the Constitution. And the U.S. Constitution does not give permission to ANYBODY to violate it.
Obviously, the necessity to protect the judiciary as members of the same "corporation" is much stronger than the duties imposed by the oath of office.
The logic that the oath to uphold the U.S. Constitution is only a trigger of protection, and is meaningless otherwise, is so deeply entrenched in governmental - and judicial culture - that raising constitutional arguments in courts has become dangerous business, often leading to sanctions for "frivolous" conduct, especially if the claims of constitutional violations come against powerful governmental officials.
If oaths to UPHOLD the Constitution are only used to UHOLD VIOLATIONS of that same Constitution - do we really need the oaths of office?
Maybe, we need to eliminate all of them, as well as all immunities for violating them, and introduce clear and transparent system of duties and accountability for violating those duties for all public officials, with direct monitoring by the people - through, possibly, investigative grand jury power?
Since I do not see any other democratic mechanisms working to eliminate this perversity of justice, resurrection and empowering of investigative grand juries with criminal prosecutions of violators of public trust and state and federal laws and Constitutions should be in order.
And a legislative and, possible, constitutional reforms, on state and federal levels, are needed to implement that.
Otherwise, the so-called "rule of law" as it is now is truly a joke and is, in fact, the "rule of the few".
Collateral estoppel as the method to eliminate civil rights attorneys in New York
New York is a unique state.
It is one of the miniscule minority of cases which still gives its attorneys the least protection in disciplinary proceedings - disciplinary authorities only have to prove their case "by preponderance of the evidence".
Why?
Because courts want to clear their dockets, in other words, to do less, and do not want to confess that clearing their dockets is the true reason behind depriving attorneys of hearings in disciplinary proceedings.
How it works.
A civil court makes a decision that an attorney allegedly did something wrong. The decision is made
"by preponderance of the evidence".
If to discipline an attorney, a higher standard of proof is required (as in other states), then an attorney is entitled to a hearing.
Not in New York.
In New York the disciplinary court can simply rubber-stamp, without any further hearings, that if the lower court decided this way - right or wrong - the attorney must be disciplined.
But - wait a minute - attorney discipline exists to protect the public from attorney misconduct, isn't it correct?
And, if the lower court's decision is wrong, there is nothing to protect the public from, isn't it correct?
And, there is a dire shortage of attorneys who are willing to take cases for the poor, underprivileged and unpopular clients, as well as unpopular causes, isn't it correct?
And, attorney disciplinary bodies predominantly target solo attorneys engaged in protection of civil rights, isn't it correct?
So - when disciplinary courts deny civil rights attorneys a hearing before taking their licenses, reputations and livelihoods, they do not care whether attorneys did, in fact, commit any wrongs, and whether the public, indeed, needs protection, isn't it correct?
So, all these statements about attorney licensing and attorney discipline protecting the public is a lie to appease the public and conceal the true picture that courts are actually specifically depriving the public of their best chance of representation by suspending and disbarring, without hearings, civil rights attorneys, on pretextual grounds, isn't it correct?
It is one of the miniscule minority of cases which still gives its attorneys the least protection in disciplinary proceedings - disciplinary authorities only have to prove their case "by preponderance of the evidence".
Why?
Because courts want to clear their dockets, in other words, to do less, and do not want to confess that clearing their dockets is the true reason behind depriving attorneys of hearings in disciplinary proceedings.
How it works.
A civil court makes a decision that an attorney allegedly did something wrong. The decision is made
"by preponderance of the evidence".
If to discipline an attorney, a higher standard of proof is required (as in other states), then an attorney is entitled to a hearing.
Not in New York.
In New York the disciplinary court can simply rubber-stamp, without any further hearings, that if the lower court decided this way - right or wrong - the attorney must be disciplined.
But - wait a minute - attorney discipline exists to protect the public from attorney misconduct, isn't it correct?
And, if the lower court's decision is wrong, there is nothing to protect the public from, isn't it correct?
And, there is a dire shortage of attorneys who are willing to take cases for the poor, underprivileged and unpopular clients, as well as unpopular causes, isn't it correct?
And, attorney disciplinary bodies predominantly target solo attorneys engaged in protection of civil rights, isn't it correct?
So - when disciplinary courts deny civil rights attorneys a hearing before taking their licenses, reputations and livelihoods, they do not care whether attorneys did, in fact, commit any wrongs, and whether the public, indeed, needs protection, isn't it correct?
So, all these statements about attorney licensing and attorney discipline protecting the public is a lie to appease the public and conceal the true picture that courts are actually specifically depriving the public of their best chance of representation by suspending and disbarring, without hearings, civil rights attorneys, on pretextual grounds, isn't it correct?
Friday, August 29, 2014
Your truth may still be in bad faith!
Dialogue in the courtroom:
JUDGE: I've read your voluminous pleading, with all those exhibits, all the 5-inch-thick motion, ad nauseam.
ATTORNEY: But, Your Honor, the issue is vitally important to my client and myself, those are constitutional issues, and my arguments are supported by uncontroverted documentary evidence!
JUDGE: I will reserve on the issue of sanctions as to whether your motions was made in bad faith and frivolously.
Translation: I am still considering whether I should sanction you for presenting the truth to the court in bad faith and frivolously.
Go figure.
JUDGE: I've read your voluminous pleading, with all those exhibits, all the 5-inch-thick motion, ad nauseam.
ATTORNEY: But, Your Honor, the issue is vitally important to my client and myself, those are constitutional issues, and my arguments are supported by uncontroverted documentary evidence!
JUDGE: I will reserve on the issue of sanctions as to whether your motions was made in bad faith and frivolously.
Translation: I am still considering whether I should sanction you for presenting the truth to the court in bad faith and frivolously.
Go figure.
Judicial allergies to issues of judicial bias and misconduct
What happens to judges when they are requested:
1) to read a large pleading with a lot of exhibits;
2) that requires them to do a lot of research;
3) to rule on an issue of whether another judge committed misconduct?
In my experience, even a judge who is an otherwise nice and jovial person, would turn extremely nasty, rude and disrespectful to the party and attorney who caused the judge to read a lot and have to make these tough decisions, forgets about all rules of civility, yells at parties and attorneys, accuses parties and attorneys of lying without allowing them to properly rebut accusations, disregards procedural and substantive rules applicable to the proceedings ... You name it...
Why the issue of judicial misconduct tees off judges so much?
They are angels who can never make mistakes and can never commit intentional misconduct?
Yet, incidents when judges are disciplined do happen, more rare than rogue judges deserve it, of course, but such discipline does happen, see, for example, here, here, here, and here.
As of late, three judges were even convicted for crimes tied to their judicial office - two in Pennsylvania by a federal court, and one, again, in Pennsylvania, by a state court.
So - judges are definitely not saints.
I just think that judges should lighten up and not think that by making a motion pointing out judicial bias or misconduct a party or attorney is committing a sacrilege.
After all, is it so difficult to just do your job, even if it involves a sensitive issue? If it is, maybe somebody else should do that job.
1) to read a large pleading with a lot of exhibits;
2) that requires them to do a lot of research;
3) to rule on an issue of whether another judge committed misconduct?
In my experience, even a judge who is an otherwise nice and jovial person, would turn extremely nasty, rude and disrespectful to the party and attorney who caused the judge to read a lot and have to make these tough decisions, forgets about all rules of civility, yells at parties and attorneys, accuses parties and attorneys of lying without allowing them to properly rebut accusations, disregards procedural and substantive rules applicable to the proceedings ... You name it...
Why the issue of judicial misconduct tees off judges so much?
They are angels who can never make mistakes and can never commit intentional misconduct?
Yet, incidents when judges are disciplined do happen, more rare than rogue judges deserve it, of course, but such discipline does happen, see, for example, here, here, here, and here.
As of late, three judges were even convicted for crimes tied to their judicial office - two in Pennsylvania by a federal court, and one, again, in Pennsylvania, by a state court.
So - judges are definitely not saints.
I just think that judges should lighten up and not think that by making a motion pointing out judicial bias or misconduct a party or attorney is committing a sacrilege.
After all, is it so difficult to just do your job, even if it involves a sensitive issue? If it is, maybe somebody else should do that job.
Friday, August 22, 2014
Pennsylvania convicted Judge Joan Orie Melvin - will New York convict Judge James C. Tormey for similar conduct?
As I wrote in my blog, the state of Pennsylvania convicted Judge Melvin of felonies for using court personnel in her political election campaign.
I also wrote about a New York judge James C. Tormey who was NOT convicted (not even charged) for trying to engage a court employee, an attorney, in political espionage against a judge, a Democratic judicial candidate, for the benefit of the Republican party.
And you know why James C. Tormey was not investigated or prosecuted?
The District Attorney in his County was his law school roommate, and the New York State Attorney General was his attorney representing him in a civil lawsuit on the same issue.
Yet, I repeat the question to the powers-that-be - why is Judge Tormey still on the bench and when will he be prosecuted for what he did, the same way Judge Melvin in Pennsylvania was prosecuted?
If Judge Melvin is a felon for practically the same conduct - why James Tormey is not only still an attorney, but a judge, and a Chief Administrative Judge of the 5th Judicial District?
Is there any semblance to the rule of law, "nobody is above or below the law" principle in New York?
Does not appear that way to me.
I also wrote about a New York judge James C. Tormey who was NOT convicted (not even charged) for trying to engage a court employee, an attorney, in political espionage against a judge, a Democratic judicial candidate, for the benefit of the Republican party.
And you know why James C. Tormey was not investigated or prosecuted?
The District Attorney in his County was his law school roommate, and the New York State Attorney General was his attorney representing him in a civil lawsuit on the same issue.
Yet, I repeat the question to the powers-that-be - why is Judge Tormey still on the bench and when will he be prosecuted for what he did, the same way Judge Melvin in Pennsylvania was prosecuted?
If Judge Melvin is a felon for practically the same conduct - why James Tormey is not only still an attorney, but a judge, and a Chief Administrative Judge of the 5th Judicial District?
Is there any semblance to the rule of law, "nobody is above or below the law" principle in New York?
Does not appear that way to me.
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