The U.S. Court of Appeals for the 2nd Circuit: New York may discriminate against out of state attorneys to protect business of in-state attorneys. Dissent: no, facial discrimination for protection of insiders' business against a fundamental right to practice law is unconstitutional

Since September 7, 2011 1/3 of attorneys practicing in New York State (out-of-state attorneys) enjoyed the benefits of the decision of Judge Lawrence Kahn - yes, Judge Kahn not only engages in corrupt behavior by ruling against enemies of his friends from American Inns of Court where he is an "officer", he also did something right, too - nearly 5 years ago.

In his decision filed on September 7, 2011, Judge Kahn declared unconstitutional New York "office requirement" for out of state attorney - which was clearly anachronistic in our day and age of the Internet, and violated Privileges and Immunities clause of out-of-state attorneys who were licensed to practice in New York.

Let's say it again - New York ISSUES licenses to out of state attorneys, without requiring them to have offices in New York.

New York CHARGES money for those licenses, CHARGES money for continued legal education, but when it comes to actually exercise their rights to practice, it BURDENS out-of-state attorneys with additional requirements - to have a physical office within the state of New York, something the so-called "resident" attorneys are not required to do.

On April 22, 2015, the 2nd Circuit overruled Judge Kahn and claimed that the requirement of a physical office of the out-of-staters, which is not required from the "resident" attorneys is not a violation of Privileges and Immunities Clause, but instead that by asking the court to strike the office requirement targeting ONLY out-of-staters, out-of-staters are trying to create a "privileged situation" for themselves.

Go figure the logic.

The dissenting opinion (that starts on page 32 of the 2nd Circuit's decision made by the majority of just TWO judges who decided to uphold discrimination against 1/3 of New York State attorneys) judge Peter Hall picked up on that warped logic right away:

That's exactly right - Judiciary Law 470's office requirement was meant ONLY for out-of-state attorneys, which meant that the statute was discriminatory - and thus unconstitutional under Privileges and Immunities clause - ON ITS FACE.

Judge Hall further states that the majority acknowledged that the statute had "protectionist aims" that did not survive the required scrutiny, or in other words, that New York State government MEANT to discriminate against the out-of-state attorneys in order to protect the business of in-state attorneys:

Judge Hall recognized that the practice of law is a fundamental right - which means that additional protections and scrutiny are needed before the government can burden such a right:

The majority does not mention that the practice of law is a fundamental right by the way - you can word-search the decision, the words "fundamental right" (according to the U.S. Supreme Court's decision in Supreme Court of N.H. v Piper, 470 U.S. 274 (1985) ) are only contained in the dissent and in majority's footnotes describing the dissent.

As to the so-called "resident attorneys", such attorneys do no have to have an office. 

The contrived reason for discrimination is the alleged amenability of in-state attorneys to service on their residential address.

That is simply not true.

Look up New York state attorneys with New York State P.O. Box addresses only - they do not have their residential addresses listed, so service upon their residential addresses is, naturally, not available.

I had an experience with Judiciary Law 470 while it was still deemed unconstitutional and while my license in New York was still not suspended.

I was NOT an "out of state attorney" because my residence remained in New York, even though I visited out of state, and even stayed for some time out of state.

Many New Yorkers have two residences - in Florida, for example, and in New York, and the "residency" requirements are not clearly defined, by the way, in Judiciary Law 470.

NYS AG Kenneth Gellhaus accused me, this past summer, of unauthorized practice of law because he claimed I had to, as a "non-resident attorney", and did not have the "required" physical office in New York to oppose a case he handled against my client.

In opposition, I, first, stated that Judiciary Law 470 at the time was unconstitutional because of Judge Kahn's decision. 

Second, that I was at that time a resident attorney in New York, and did not have to have a physical office.

Third, even if an attorney has a P.O. Box outside of the State of New York to receive mail, that may not be used as proof of out-of-state residency, because the U.S. post offices do not have residency requirements to provide those P.O. Boxes anywhere, and my South Carolina P.O. Box was the only "proof" of my "non-residential status" that Mr. Gellhaus had.

And fourth - I asked Mr. Gellhaus to disclose his own personal RESIDENTIAL address, because that is the whole difference that is claimed to justify discrimination of Judiciary Law 470 - that "resident" attorneys may be served at their residential addresses.

I never got that residential address from Mr. Gellhaus, which shows how much worth are the arguments about amenability of "resident" attorneys to personal service in New York - exactly "zero". 

Mr. Gellhaus was, by the way, the first person who notified me of suspension of my law license - I guess, he was very much interested in that event to occur and I wonder if he made sure that event would occur.

After all, both the disciplining court and the disciplining attorney grievance committee were both his clients.

So - now any discriminated "out of state" attorney who is licensed in New York can DEMAND to know 

RESIDENTIAL ADDRESSES of the so-called "resident" attorneys to be able to serve them at their home, and 

DEMAND that New York State must now REQUIRE "resident" attorneys to publish their residential addresses along with their office addresses or P.O. Boxes to make themselves "amenable" to personal service - as a matter of equal protection challenge, because the "resident" attorneys' status as living within the State of New York and amenable to personal service at their homes within the State of New York was the ONLY distinction made by the 2nd Circuit as to why discrimination against attorneys must exist.

So - did the 2nd Circuit's decision really protect the "resident" attorneys in New York?

Did it make them safer?

I don't think so.

The service issue is also a non-issue because by being licensed in New York, attorneys agree to service of process wherever they are.

Kentucky as the center of bizarre decisions - bigoted and racist decisions

First, it was the indomitable Kim Davis that railed the whole country by defying the U.S. Supreme Court order and going to jail for refusing to give marriage licenses to same-sex couple on her own personal religious grounds.

Then, it was the "voluntary" suspension and continued disciplinary proceedings of the African American Judge Olu Stevens for faithfully discharging his judicial duties, exercising his rights as a citizen outside of court proceedings after proceedings were over, criticizing racism in the Kentucky prosecutor's office, and fighting racism in Kentucky court system.

Now, it is the slap on the wrist for the white judge Sheila Collins who did something really wrong - wrongfully incarcerated for contempt a witness in a domestic violence case who recanted her testimony out of fear.

Sends a message as to what the Kentucky establishment is all about, right?

Bigoted as to gender and sex orientation and bigoted on racist, even as to their own judges.

And, I do not see in the press notifications of the public railing very much in support of African American Judge Stevens and in indignation against the "be a good girl now" make-believe discipline against white Judge Collins.

The year 2016.

Oh, well.

Confusion rules in Kansas Supreme Court

To issue three decisions and overrule them in the fourth decision - in one day?

Isn't it a little bit too much?

My suspension would have been impossible in North Carolina, but instead discipline would be imposed upon the sanctioning judge

It would be interesting to know for attorneys or litigants sanctioned in New York or other states for making a motion to recuse a judge after suing that judge that in some states - for example, in North Carolina, the sanctions would be imposed in such a situation against the judge, not against the attorney or litigant who sued the judge before sanctions were imposed.

It is apparently not self-evident in New York since my law license was suspended exclusively based on sanctions that were imposed upon me by the judge against whom a lawsuit was pending.

In North Carolina such a situation would have required: 

• an automatic recusal of a judge, and
• discipline AGAINST THE JUDGE for non-recusal - the judge was CENSURED for not recusing,

see the full text of the North Carolina case here.

In my case, Judge Becker was not only not discipline, but my license was suspended based on his sanctions against me imposed after the lawsuit was filed against Judge Becker by a party in the action where sanctions were imposed.

I guess, what is considered inappropriate FOR A JUDGE to do in North Carolina, is inappropriate for an attorney to point out to such a judge in New York.

Go figure.

My suspension would be impossible in Texas. Why is it possible in New York, then?

While reading a recent article about judicial misconduct in the United States and specifically in New York - reported, naturally, outside of this country, since the local "mainstream" media sources are deadly afraid of the subject - I came across a situation where a female attorney from Texas was slapped with contempt proceedings by a judge after she made a motion to recuse him.

My further research of that situation revealed a recitation of the following law in Texas applicable to procedures in motions to recuse:

" If a motion to recuse is filed, the judge only has two options: recuse himself or refuse to recuse himself.  

If the challenged judge refuses to recuse himself, then he cannot hear any further matter in the case until an assigned judge hears the motion to recuse.  See e.g.Jamilah v. Bass, 862 S.W.2d 201, 203 (Tex. App – Houston [14th Dist.] 1993)(orig. proc.). Any order signed by the challenged judge after a motion to recuse is filed is void.  In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 169 (Tex. App. – Corpus Christi 1999, orig. proceeding)."

So, the attorney who was unlawfully slapped by the challenged judge with contempt proceedings for making a motion to recuse him continues to practice law.

Unlike me.

I was slapped with sanctions (which would have been void in Texas) by the exact same judge whom I was challenging on a motion to recuse.

In Texas, if a judge refuses to recuse, another judge should step in to determine the motion to recuse - and while that motion is pending, the challenged judge may not make any decision in the case.  In other words, any proceedings on the case STOP if a motion to recuse is made and the challenged judge refuses to recuse.

Not so in New York.

In New York, the challenged judge is given an absolute discretion to decide the motion challenging himself.

Which resulted in sanctions - and suspension of law license - for me, while suspension of law license happened without providing me with any pre-deprivation hearing, because, in the eyes of the disciplinary court, I had enough "due process" in being slapped with sanctions by an enraged challenged judge.

After all, he "examined his own conscience" before denying my motion to recuse and slapping me with those sanctions.

Once again - why the State of Texas, which is not exactly known for its democratic ways in the courtroom - recognizes that a challenged judge is presumed biased in relation to a motion challenging his own impartiality and/or integrity and may not preside over or decide such a motion.

Why in New York an attorney may be suspended for making a motion to recuse while in Texas such a thing simply cannot happen - as a matter of law?

Shouldn't the right to earn a living be the same due process right and not depending on the whims of the legislatures in various states?

Especially that the rule of "discretion" for judges to preside over motions to recuse them is not even a statute, is not even a court rule - it is a judicial policy determination, illegal as legislating from the bench on an important issue of constitutional law.

Once again.

Why New York "justice" looks like cavemen's justice as compared to Texas?

Online law education is now good because there's not enough brick-and-mortar students?

In 2000 I started studying at an online law school, Concord Law School out of California.

The school disclosed that it is not accredited by the ABA, but indicated that it is in its plans.

I enrolled because I was curious about the law - being an immigrant wishing to know the law of my new country, and being a wife of a trial lawyer, to better help my husband in his law office as a legal assistant.

In 2001 9/11 happened, and I cancelled my plans to go to Los Angeles to take the "baby bar" - the 1st year law student examination for online schools that California required.  I had a newborn baby, there were threats of more attacks, and I did not want to risk separation from my family at such a time.

Yet, I went through 1.5 years of the school, and went successfully.

In 2005 I applied to Albany Law School and was admitted, with a merit scholarship.

I inquired whether my studies in Concord Law will be credit - and they weren't.

I had to repeat those courses I already took in Concord, which were no worse, and actually better than in Albany Law.

I would, of course, much prefer to go to an online school instead of a brick-and-mortar school, for many reasons.

I was an older student, not a fresh college graduate, and I had family obligations.

When I started attending law school in Albany Law, my older daughter started college, and I had two minor children at home needing me around.

I needed to be able to help my husband to handle the law practice (I was his legal assistant), and to help around the house and with the kids.  

His practice was large, busy and stressful, and he needed any help that could come his way.

I also very much wanted my young son to continue learning Russian - which I could not do at a distance from Albany (my son remained with my husband who did not speak Russian in Delhi, NY).

Therefore, online education would have suited me just fine, and having to live 89 miles away from my family, especially when separated with mountain roads covered with snow and ice, was a great sacrifice for everybody involved.

And, as I am learning now, an unnecessary sacrifice - because the reasoning that was advanced for not accrediting online education is going away now, merely because of a decline in enrollments in brick-and-mortar schools.

The reasoning advanced at the time I was denied credit for my previous studies at Concord Law was that American Bar Association does not believe the quality of online education will protect consumers as much as the quality of education in brick-and-mortar law schools.

There was no evidence to support that conclusion at that time, and one of the graduates of Concord Law, Ross Mitchell, my former classmate, has been admitted to the practice before the U.S. Supreme Court, not to mention federal district and appellate courts, so the education Concord Law gives is not bad at all.

Yet, ABA stubbornly refused accreditation to online law schools, which brings to the fore the question:

why a non-profit corporation is allowed to control how the entire huge country's government - in 50 states, 13 federal circuits with all included district courts - is licensing court representative for the American people?

And the question is even prominent because recently, 

• after enrollments in brick-and-mortar schools started to decline and brick-and-mortar law schools are facing tough choices whether to cut their faculty since they cannot maintain their budgets with declined enrollments;
• as a reaction to this purely economic, market event - lack of enrollment of students into brick-and-mortar law schools, the ABA suddenly changed its position as to online law school education and started to accredit online law schools.

As an example of that sudden change, recently, Syracuse School of Law in New York state announced that it is considering opening a partially-online J.D. program fully accredited by the American Bar Association.

So, what of quality of education?

What of protection of consumers?

Does that protection cede when law schools start losing money and look for wider "customer base" with cheaper products, a mere marketing survival tool?

Or was the prohibition on online law schools a measure based not on quality of education, but on stifling cheaper, more affordable and more accessible education, especially for people who live in rural areas (like I did) and had families and jobs to maintain (like I did)?

From the very beginning?

While, of course, I resent having my family to go through these sacrifices (not to mention a higher tuition than at an online school, since my merit scholarship did not cover the entire education - and the additional living costs that I wouldn't have had if I remained at home and went to an online school), the tendency to allow online law schools is actually good.

It will further increase competition among law schools.

It will further drop prices of law education.

It will make law education more affordable and accessible to people with less funds, and from remote areas for whom having to attend a brick-and-mortar school, especially with a prohibition to work for the 1st year - that is yet another ABA's anti-competitive invention - was a bar to receiving law education at all.

I hope that the next step should be to make education about law available to people at the high school level, and to make the law degree not an "advanced" degree, as it is now, but a regular college bachelor's degree, as it is in other countries - with no damage to quality of education.

That would eliminate the illogical structure of law education that exists in this country nowadays where a person needs to complete sometimes an unnecessary bachelor's degree, thus incurring additional student debt, as a condition precedent of being able to go to law school.

I hope that this pre-requisite is cut for the online law schools, and they start giving BA/JD diplomas, where legal education starts from the very first day of the BA program.

I hope also that legal education will be allowed to incorporate to a larger degree apprenticeships, because classroom learning without practical skills do not mean much.

In fact, apprenticeships should be allowed to take the majority or at least equal number of credit hours required toward getting a law degree, as learning theory.

But, returning to the topic of online law schools and ABA's change of heart regarding accreditation - control of the legal profession should be taken away BOTH from this non-profit corporation AND from the government.

Who people want to hire to represent them in court should be governed only by people's trust in that person - and by a power of attorney reflecting that trust.

That, and the word of mouth that, in the age of the Internet, will spread like wildfire, about good court representatives and bad court representatives alike - is all that is needed for consumer protection.

A deadly blow dealt to judicial immunity - from an unlikely source, former judge of New York State Court of Appeals Carmen Ciparick

Oh, the joy of depositions.

Usually, if a judge is sued, the lawsuit is tossed on judicial immunity grounds.

In a rare deposition of a former judge of New York top state court, which lifted the veil, at least a little bit, as to what judges in New York State are all about.

Now remember, the concept of absolute judicial immunity - a doctrine that judges invented to give as a gift to themselves, so that they could not be sued for constitutional violations on the bench, such as fixing cases, for example - is jammed down the public's throat with an explanation that it is "necessary" to make CORRUPT judges immune from suit, and thus strip victims of their corruption of any possibility of a remedy in order to maintain and preserve judicial INDEPENDENCE.

An interesting concept of independence from the constitutional oath of office, but still - that's what the declared justification of the concept of judicial immunity is, judicial INDEPENDENCE.

I saw it time and again in civil rights lawsuits.

So, as a matter of common sense and logic, if judicial independence is so important that even corrupt judges are protected by the concept of judicial immunity - it means that what kind of judicial candidates must be picked to be on the bench?

Wouldn't it be independent-minded?

Apparently not so - says former New York State Court of Appeals judge Carmen Ciparick.

Carmen Ciparick was called to testify at a deposition in a civil rights case, this case:

Here is the full text of the deposition, it is not long, just 9 pages.

The deposition was held on February 18, 2016.

After the deposition, the plaintiff in the action filed a motion on April 20, 2016, seeking to include former judge Ciparick in an anti-discrimination lawsuit, as a defendant.

I obtained the motion from Pacer.gov and am reviewing it.

Here are some portions from the proposed 3rd Amended Complaint of Tracy Catapano-Fox:

So what did Judge Ciparick say in the deposition that invited the lawsuit against her?

Here's one of her statements:

Ciparick, after 34 years on the bench, believes that "insubordinate" people should be allowed to be on the bench?

So, Ciparick was "subordinate"?

The question is - to whom?

Should all litigants she ruled against in her 34 years on the various benches, be now thinking who told her to rule the way she ruled, and she obeyed as a good girl?

I recently raised an issue in court that assignment of cases by a recused judge is a violation of the litigant's due process of law.

In my arguments that when a recused judge controls assignment of other judges to the case he controls the outcome of the case - and that is a violation of due process of law, I relied upon the decision of the U.S. Court of Appeals for the 5th Circuit:

McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1261 (5th Cir. 1983) (“To permit a disqualified chief judge to select the judge who will handle the case in which the chief judge is disabled would violate the congressional command that the disqualified judge be removed from all participation in the case.”)

The situation involved a motion for sanctions for frivolous conduct against private attorney Ellen Coccoma (representing private clients on County time - and she conveniently lost or destroyed her time sheets for the County for the time when she was toiling on this case, in answer to my FOIL request), wife of Chief Administrative Judge for upstate New York Michael V. Coccoma who controlled assignment of judges to her cases, and assigned Kevin Dowd, a judge who had definite mental health problems (he was raving on record about a urinal built in his honor at a custody proceeding) and was close to retirement, and Michael Coccoma the husband also controls lucrative assignments of retired judges as "judicial hearing officers".

=====

New York State Appellate Division 3rd Judicial Department disagreed court responded to my well-grounded argument this way:

"Homestead repeatedly asserts that Justice Dowd erred in refusing to recuse himself in this matter, pointing to the fact that Ellen Coccoma, who has served as counsel for plaintiffs, is the wife of the Deputy Chief Administrative Judge for Courts Outside New York City. 

Homestead specifically argues that the Deputy Chief Administrative Judge controls the assignments given to retired Supreme Court Justices serving as Judicial Hearing Officers and could thus conceivably cause difficulties for Justice Dowd following his retirement if he sanctioned or otherwise ruled against Ellen Coccoma in this action (see Judiciary Law §§ 850 [1]; 851, 852; 22 NYCRR 81.1). We do not agree that this remote, speculative, "possible or contingent" financial interest warrants the disqualification of Justice Dowd (People v Whitridge, 144 App Div 493, 498 [1911]; see Langdon v Town of Webster, 270 AD2d 896, 896 [2000], lv denied 95 NY2d 766 [2000])."

===

Of course, the appellate court conveniently overlooked my other argument, based on the McCuin case above:

McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1261 (5th Cir. 1983) (“To permit a disqualified chief judge to select the judge who will handle the case in which the chief judge is disabled would violate the congressional command that the disqualified judge be removed from all participation in the case.”)

 - that Michael Coccoma himself recused from all of my cases, and that assignment by Michael Coccoma of any judges amounted to re-entry after recusal of Michael Coccoma himself, with a purpose of retaliation (I wrote about this technique of 3R's - Recusal-Reentry-Retaliation of New York judges, happened to me several times).

Of course, judge Kevin Dowd claimed that no matter who assigns him, his "judgment" is independent.

That's not what Carmen Ciparick thinks though.

Now, who would be more eligible for the position of an independent judge than the Executive Director of the Citizen Complaint Board about actions of police officers.

You need to be REALLY independent-minded to withstand pressures about the subject as sensitive as police misconduct, in our day and time.

Yet, Carmen Ciparick rejected that Executive Director as a judicial candidate for the reasons described above.  Here is her reasoning, once again:

Ms. Fox was the Executive Director of the Board - who was she supposedly "insubordinate" with?  Who is her boss?

What was she "insubordinate" about?

And why is insubordination TO AUTHORITY is a disqualification for a judge whose only "subordination" must be to the law? And nobody else?

So, the cost that innocent victims are paying for "judicial independence" by being stripped of their right to an effective remedy for constitutional violations - judicial immunity for MALICIOUS and CORRUPT conduct of a judge - is all for a fake?

Because independence of a judicial candidate is a DISQUALIFICATION?

Good job, Carmen Ciparick.