In New York system of attorney discipline, grand theft of client funds is less of attorney misconduct than truthful criticism of a judge on behalf of a client in a motion to recuse

On November 13, 2015, New York State Supreme Court, Appellate Division 4th Judicial Department decided several cases of attorney discipline.

Two cases decided on the same day, November 13, 2015 that I would like to discuss here are:

1. Matter of Tatiana Neroni (suspended for 2 years for truthful criticism of a judge in motions to recuse) and
2. Matter of Barry Dolgoff (suspended for 1 year for grand theft of client funds from the trust account - $149,000 of client funds, to be exact).

Theft of more than $50,000 qualifies in New York as grand larceny in the 2nd degree, Penal Law 155.40(1) , a C felony, punishable by up to 15 years in state prison, by a fine of $5,000 or twice the amount stolen (whichever is greater) and by an automatic disbarment on conviction, Judiciary Law 90(4)(a):

"Any person being an attorney and counsellor-at-law who shall be
 convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."

Return of some of the funds into the trust account does not negate commission of the crime.

Apparently, attorney Dolgoff was not criminally charged - even though he reportedly admitted to the theft in court.

Was attorney Dolgoff disbarred, even without conviction - because he admitted to what constituted grand theft of client funds?

No.

Was attorney Dolgoff denied a hearing (like I was) - because he had courts reportedly ruled about his theft of client funds before the disciplinary court did?

No.

Attorney Dolgoff was allowed to have a hearing, and to call witnesses who vouched that he is a good person (even though a thief).

Let's compare attorney Dolgoff's offense (a felony) with my "offense" (criticism of a judge in a motion to recuse).

While committing fraud and a crime is specifically mentioned as attorney misconduct in the Rules of Professional Conduct for Attorneys in New York, criticizing a judge is not included into the same Rules as attorney misconduct, and understandably so.

After all, litigants' right to impartial judicial review is a fundamental federal constitutional right, and attorneys are guarantors of securing that right for their clients.

Moreover, New York, unlike other states, allows its attorneys only ONE tool to secure that fundamental federal constitutional right for their clients - a confrontational motion to recuse, made in front of the challenged judge.

Additionally, New York courts deems it improper when attorneys do NOT make a motion to recuse, force attorneys to make such motions in front of the judge they are challenging with the motion to recuse, and teach the judge who sanctioned the attorney in retaliation incorrectly, how to do it correctly on remand - and then take attorney's law licenses, without a hearing, after such retaliatory sanctions are imposed.

When sanctioning attorneys for criticizing judges, New York courts do not care whether the criticism was truthful or not, or whether the judge did or did not engage in the "appearance of impropriety" (22 NYCRR 100.2) - the threshold allowing to make a motion to recuse in New York.

Raising "appearance" of impropriety does not require "conclusive proof", as the disciplinary court affirmed in my case, affirming in full (and without a hearing) the language of Charge III Specification 3 in the disciplinary petition filed against me:

Specification 3

          Regarding respondent’s conduct the above referenced court found: “By these accusations MrsNeroni displays disdain for the rule of law and the authority of the courts of this state.  Her assertions of the significance of various isolated and unrelated facts as being conclusive proof of bias, bribery and other misconduct on the part of the court and opposing counsel are contrary to the universally accepted principles which serve as the basis of our judicial system.”

Raising appearances of impropriety requires only to raise a reasonable inference of impropriety - an issue of fact subject to determination by a reasonable and impartial observer.  Certainly not by the judge who is the target of the motion to recuse.  Certainly, a judge who was caught with his hand in the cookie jar, will claim that circumstantial evidence of his misconduct (which is perfectly admissible in trials and has sent thousands of people in New York behind bars) is somehow inadmissible and constitutes "isolated" and "unrelated" events. 

Of course, anything would be "isolated" and "unrelated" when a judge wants to absolve himself - but that is why many states do not allow the judge targeted with a motion to recuse to preside over such a motion, much less to impose sanctions for making such a motion.

Now.

No court has so far explained to me what are the existing "principles" that Charge III Specification 3 is talking about - of how an attorney must make inferences from evidence of impropriety the attorney sees in the record and is otherwise aware of through the attorney's factual investigation into the judge's background, connections and conduct.

There are no guidelines for attorneys as to how to make inferences whether the record in front of them does or does not raise an inference that the judge was bribed or influenced, or committed misconduct.  It is just common sense.

No court has ever explained to any attorney in New York or otherwise, which principles "serve as the basis of our judicial system" that I so grossly violated that I needed to be stripped of my license and livelihood for 2 years.

Moreover, Charge III Specification 3 does not mention whether my allegations of misconduct were or were not truthful - and, did not mention that sanctions were imposed upon me by the so-called "accuser-adjudicator", the judge to whom I pointed out that his conduct in the criminal case raise a reasonable inference that he acted under the influence of a powerful political figure.

So, in my case, the 4th Department expressed its clear policy that it considers criticism of a judge, by mere subject matter, especially the mentioning of a potential bribery of a judge, such a taboo that, whether it is truthful or not, it must be punished with suspension of a law license.

                                        *      *       *

So, when an attorney is court with his pudgy paw in his clients' cookie jar, BIG TIME - that's not such a big problem for the disciplinary court.

Criticism of a judge is a MUCH bigger "attorney misconduct", in the opinion of the New York disciplinary courts - as the 4th Department demonstrated in my case and in attorney Dolgoff's case, where the two cases were decided by the same court on the same day.

Let's remember.

In New York, if your attorney steals $149,000 in your funds from the trust account, is caught, but then "expresses remorse" for commission of a crime - he will be suspended for just 1 year.

If your attorney makes for you a motion to recuse (without pay!) raising appearance of impropriety, bias and misconduct of a judge, based on documentary evidence - in order to secure your fundamental federal constitutional right to impartial judicial review, in the only way permitted by New York law, by a confrontational motion to recuse in front of the judge that is the subject of the motion - then, your attorney will be suspended for 2 years, and then made to retake the bar examination in order to be reinstated.

Guess, how many attorneys will now steal from you after Matter of Dolgoff (given that they will be forgiven if they "express remorse", and if their friends vouch for the thief's "honor"), and how many attorneys will make a motion to recuse on your behalf after Matter of Tatiana Neroni.

New York State Court of Appeals hears a case whether it is proper to deny reinstatement to an attorney because he is an expert in law

I wrote on this blog about the case in New York where a disbarred attorney was denied reinstatement because he acted as a law expert - which he undoubtedly was and is. 

Joel Brandes is not only an expert in the area of Family and Matrimonial law, but an author of several books - and he was denied reinstatement because he acted as an expert, while the same New York State allows unlicensed professors of law to act as experts without being licensed just the same.

I already wrote about the in-arrears ad-hoc (case-by-case) determinations by courts as to what constitutes unauthorized practice of law, which is NOT how notice of prohibited conduct should be given through criminal statutes.

Now, the top New York State Court is going to hand out a decision - can an attorney be punished, denied reinstatement - because the attorney is good, skillful and knowledgeable?

It is interesting what the NYS Court of Appeals' decision will be in Joel Brandes' case.

I will follow this story with great interest and report on it.

Stay tuned.

New York attorney disciplinary prosecutor Mary Gasparini refuses to comply with the rules of the U.S. Supreme Court

I am about to file my petition for a writ of certiorari in the U.S. Supreme Court.

And, the U.S. Supreme Court Rule 29(3) requires me to serve an electronic version of my petition upon my opponent, and to engage in reasonable efforts to obtain the opponent's e-mail address.

I've got an earful of yelling for my reasonale efforts to comply with the U.S. Supreme Court rule of service today.

My opponent, the Attorney Grievance Committee for the New York State Supreme Court, Appellate Division, 4th Judicial Department, 5th Judicial District, does not list their e-mail address anywhere - even though it is a public record.

So, in order to comply with the U.S. Supreme Court rule, I called the Grievance Committee, explained the reason why I am calling, and asked for their e-mail address for purposes of service.

The woman on the other side of the line first simply refused to give me the e-mail address claiming that they do not accept service by e-mail.

I explained to them that the service by e-mail is not my whim, and is the requirement of the U.S. Supreme Court.  Then, I repeated my request.

After that, the woman on the other side, who was apparently, my disciplinary prosecutor Mary Gasparini, flew off the handle.

She started to yell, at the top of her lungs, calling me by my first name - which I never gave her permission to do (I do not call her "Mary") - and asking me, in return, why don't I accept personal service from her, which was completely irrelevant.

I was asking her a question about her e-mail address, which was a public record, and which was required for service of a petition for a writ of certiorari upon Mary Gasparini in compliance with a U.S. Supreme Court Rule 29(3).

Moreover, service of an electronic copy is a convenience for Mary Gasparini and not for me - because otherwise Mary Gasparini will receive her 3 booklets, but they are not word-searchable.

The U.S. Supreme Court's requirement of service of an electronic copy is a convenience for the opposing parties and not for petitioners.

So, Mary Gasparini refused to accept what was convenient for her, and did it in an extremely rude manner.

I am posting our exchange that I, of course, recorded, in order to avoid accusations against me that I did something wrong.

Mary Gasparini , of course, should have known that I was going to record her because of our prior dealings - and yet she could not deny herself the pleasure of yelling me and being disrespectful to me.

I will post the recording of our conversation later in the day, I need to do some work on the petition at this time. 

It was quite an interesting experience today talking to Gasparini.

Mary Gasparini expressed a complete disdain to the rule of law and to the Rules of the U.S. Supreme Court, simply because she - very obviously - does not like me, which is an understatement of the century.

I still don't get it why Gasparini finds it appropriate to call me by my first name - but that's the cultural level of New York disciplinary prosecutors, I guess, they do not need to be polite - who will prosecute them if they are rude, after all? 

Should I call her "Mary" next time we meet - in court?

On 9/11, let's mourn all the victims

I mourn all the victims who died on the planes and in the twin towers on 9/11, all 2,977 of those who perished that day in New York City, Pennsylvania and Washington, D.C.

I also mourn 182,000 of civilian deaths in the war that the U.S. unleashed against Iraq falsely claiming Iraq was responsible for 9/11.

I also mourn 31,000 deaths in Afghanistan caused by the war the U.S. unleashed there, also falsely claiming that Afghanistan was somehow responsible for 9/11.

I mourn the injured, the loss of families, the devastation in Iraq and Afghanistan, caused by the unlawful U.S. invasion.

I mourn the deaths and injuries of young men and women in the American Arms Forces who had no business going to Iraq and Afghanistan to kill and maim and be killed and maimed.

In 2001, I lived in the U.S. and was attending an online law school in the U.S.

That online law school was attended by working professionals, older students, some with adult children, some with adult children in the military.

I still remember how many of my co-students, adult men and women, U.S. citizens, sent e-mails to the law school discussion board collecting signatures to "inspire" their adult children in the military to rain bombs upon Iraq and Afghanistan with "Remember 9/11" plus "[The Name of the School], Class of the [Year of Graduation]" painted on those bombs.

And I still remember how viciously I was attacked through e-mails by the future lawyers of America when I wrote four words in response: "NOT IN MY NAME".

When I see today the reports of mourning in America of only those who died on 9/11, I believe, it is wrong.

We must mourn all the innocent victims of 9/11.

But, we must also mourn, at the same time, those who died, were maimed or whose livelihood was destroyed by us as a result of our government inflaming us into allowing the government to use our collective resources to unleash wars in two countries on another continent that had nothing to do with 9/11.

Our money was used to kill and maim civilians in Iraq and Afghanistan.

Our money was used to send thousands of our young men and women in the military to kill and maim in two countries that had nothing to do with 9/11.

We must mourn all victims, and make sure that we and our resources are not again used by our government as a tool of hatred against innocent people.   

Not again.

Not in our names.

No good deed goes unpunished - attorney discipline for effective representation of clients and consumer choice of service providers

Recently, legal blogs exploded with criticism of decision by Minnesota Supreme Court punishing a Colorado-licensed attorney for unauthorized practice of law in Minnesota - for trying, without coming to the state, to settle a case for his in-law by e-mail.


The Colorado-based attorney contacted, by e-mail, the Minnesota attorney who was representing plaintiffs threatening to sue Colorado's attorney's in-laws. 

The Minnesota attorney asked if the Colorado attorney was licensed in Minnesota. 

The Colorado attorney said "no", but that he will get admitted pro hac vice if the case goes to court.  Then, Minnesota attorney (who was not disciplined for aiding and abetting unauthorized practice of law) continued to communicate with the Colorado attorney in discussion of a potential settlement, and, only after a dozen such e-mails exchanged, turned the Colorado attorney in to the Minnesota disciplinary authorities for unauthorized practice of law.

Here is the decision of the Minnesota disciplinary court pointing out all the facts.

The case relied upon a California disciplinary case against an attorney who was licensed in New York, for the proposition that an attorney who has never set foot in the disciplining state, can still be deemed to be unlawfully practicing law in that state without a license.

There was a strong dissent in the Minnesota disciplinary decision stating:

The whole dispute was, reportedly, for $2,368.13 between the lawyer's out-of-state in-laws and their condominium association.

The Colorado lawyer was fully competent and experienced to handle the case, and handled it for his in-laws for free.

Legal blogs, as well as the dissent, commented that the disciplinary proceeding was not worth the effort, was against the ABA rule 5.5 promoting multijurisdictional practice in our increasingly inter-connected world.

A prominent legal blog also pointed out an idea
"no good deed goes unpunished", an idea that slowly makes it into the mainstream.

Some blogs are trying to make a distinction between the UPL by attorneys who are licensed in one state - but not in another - which they think is too heavy-handed an approach, and UPL by an individual who "is not a lawyer anywhere".

Yet, this distinction without a difference misses the point of whether services provided for the client were actually competent services, and whether the client was or was not injured.

By the way, California, the state from which Minnesota disciplinary court borrowed grounds for its disciplinary decision against Colorado attorney - for UPL - has claimed that lack of license because of attorney discipline had nothing to do with ineffective representation of counsel.

So, California, the state upon whose UPL decision Minnesota relied, claimed that, even though it is a crime of UPL for a New York-licensed attorney to practice in California without a license, and the New York-licensed attorney is not entitled to a fee because he was not licensed in California, a criminal conviction where a suspended attorney (attorney without a license) represented the criminal defendant, should not be overturned for ineffective assistance of counsel.


Makes a lot of sense, doesn't it?

Attorney licensing is declared to exist for the SOLE purpose of PROTECTING CONSUMERS from unskilled, incompetent and dishonest attorneys.

The Colorado attorney was neither incompetent nor dishonest, and the disciplining court did not even interest itself with the question whether actual services provided by the Colorado attorney to his in-laws (members of class protected by attorney licensing) were of good quality or not.

Which brings me to the issue of choice by consumers.

The Colorado lawyer's in-laws CHOSE their son-in-law to represent them in a small claims matter with their condominium association.

The Colorado lawyer, a service provider CHOSEN by his clients, did apparently a good job - otherwise the opposing counsel would not have turned him in after a dozen e-mails (not the first e-mail).

If attorney licensing exists for protection of consumers, there was nothing to protect Colorado lawyer's in-laws from.

And, my point is that a consumer must be given a choice of  service provider, and their choice must be the beginning and the end of all governmental inquiries into propriety or impropriety of such representation.

The in-laws were not complaining about the quality of their son-in-law's services.  It is the opposing counsel who complained.  And, the opposing counsel was in no position to protect the in-laws' rights as consumers.  And, the opposing counsel was not sanctioned for aiding and abetting unauthorized practice of law by knowingly engaging in settlement negotiations with a Colorado attorney for months - while knowing that the Colorado attorney is not licensed in Minnesota.

There is a definite conflict of interest here - the Minnesota counsel was using attorney discipline that is meant as a shield to protect the Colorado lawyer's in-laws (Minnesota counsel's opponents) as a sword to strip them of free and effective representation of counsel.


To me, it is the Minnesota counsel who should have been punished - and much more severely than a reprimand - for the wrong use of attorney discipline in order to get advantage in litigation, and to have the Colorado lawyer's in-laws have to look for and pay for another attorney (which could be difficult for a small-claim dispute) instead of using their son-in-law's services for free.

The Colorado attorney did not have a license in Minnesota, and was trying to resolve a Minnesota legal case - that is unquestionable.

From that point of view, the Colorado attorney was in the same position as any other individual without a license to practice law in Minnesota.  He was, indeed, practicing law in Minnesota without a license.

Yet, the case, really, boils down to the issue of the ACTUAL QUALITY of service provided, and the CONSUMER CHOICE of a provider.

A competent adult consumer may not be told by the government who they can or cannot choose to represent them in a private dispute - and the government should not be able to use the tool of removing service providers of choice from consumer's reach by the completely illogical use of attorney discipline, punishing service providers for providing GOOD, and free, services, as a mere formality.

Various government officials, once in a while, make statements about the existence and gravity of the so-called "justice gap", about the majority of Americans not being able to afford legal representation because attorney fees are out of sight

(and attorney fees are out of sight because of lawyer monopoly for court representation, and because of the high costs of legal education and maintaining a law practice - the costs that go into the legal fees).

Yet, the justice gap is only being widened by decisions such as the recent one in Minnesota - where a competent service provider of choice was sanctioned for being chosen by consumers and for providing good services for those consumers who chose him - for free.

After all, the U.S. Supreme Court has ruled in Johnson v Avery many years ago that when a state cannot fix a "justice gap", it has no say who represents a consumer, even if that person was NEVER licensed to practice law ANYWHERE.

Rob a waiter, share a footnote

An oh-so-witty footnote from a dissenting opinion filed in the U.S. Court of Appeals for the 9th Circuit on September 6, 2016 is being spread like wildfire by legal scholars and lawyers alike.

Here it is:

It is expounded as a witty pronouncement of dissent from the powerful judge Alex Kozinski and several of his colleagues, here is the full panel of dissenters:

1. Judge Alex Kozinski,
2. Judge Diarmuid Fionntain O'Scannlain,
3. Judge Ronald Murray Gould,
4. Judge Richard C. Tallman,
5. Judge Jay S. Bybee,
6. Judge Consuelo Maria Callahan,
7. Judge Carlos T. Bea,
8. Judge Milan D. Smith, Jr.,
9. Judge Sandra S. Ikuta, and
10. Judge N. Randy Smith.

The 10-judge dissent is from a decision denying review of a certain decision by the 9th Circuit "en banc" - by all judges of the court.

Here is the full list of 9th Circuit's judges listed on the court's website today:

1. Thomas, Sidney Runyan

2. Reinhardt, Stephen Roy

3. Kozinski, Alex

4. O`Scannlain, Diarmuid Fionntain

5. Silverman, Barry G.

6. Graber, Susan P.

7. McKeown, M. Margaret

8. Wardlaw, Kim McLane

9. Fletcher, William A.

10. Gould, Ronald Murray

11. Paez, Richard A.

12. Berzon, Marsha L.

13. Tallman, Richard C.

14. Rawlinson, Johnnie B.

15. Clifton, Richard R.

16. Bybee, Jay S.

17. Callahan, Consuelo Maria

18. Bea, Carlos T.

19. Smith, Milan D., Jr.

20. Ikuta, Sandra S.

21. Smith, N. Randy

22. Murguia, Mary H.

23. Christen, Morgan

24. Nguyen, Jacqueline Hong-Ngoc

25. Watford, Paul Jeffrey

26. Hurwitz, Andrew David

27. Owens, John Byron

28. Friedland, Michelle Taryn

So, why such a substantial number of judges - even though not a majority - "just" 10 out of 28 judges - voted to hear a certain case by a all judges of the U.S. Court of Appeals for the 9th Circuit?

What kind of case that was?

A death penalty case?

A wrongful conviction case?

Police misconduct, prosecutorial misconduct, judicial misconduct?

Abuse of power by social services?

Discipline of attorneys for criticism of judges as part of their jobs for their clients?

Let's remember that federal appellate court toss nearly 100% of civil rights cases through 2-3 page summary orders authored mostly by 80-year-old senior judges, and, as the same Judge Alex Kozinski acknowledged, without proper review of the case - because it requires, according to Judge Kozinski, "exponentially" more time to produce a full-fledged opinion of the court than a summary order.

So, civil rights cases are put on a fast-and-sloppy track and are tossed without looking by octogenarian judges.

As to topics, see above - that's nearly all civil rights cases.

So, what was SO IMPORTANT for the 9th Circuit judges to so vigorously dissent in a 25-page opinion?

A question, no doubt, of paramount importance, already decided by a 3-judge panel of the 9th Circuit:

Whether employers whose employees get tips as part of their jobs (in restaurants, casinos and the like) may involuntarily force such employees to share those tips with other people, like kitchen staff, who do not get tips for doing their work.

In other words - can employers, instead of paying the kitchen staff straight and proper living wages, force their servers/waiters to act as employers of kitchen staff and contribute to the portion of their wages, involuntarily?


The decision by 3 judges of the 9th Circuit said "no" - quite fairly, in my opinion.  Moreover, the 3-judge decision did not rule in favor of the tipped workers - not yet, it only reversed a decision precluding a jury trial for such workers and sent the case back to the district court to be tried.

That was the most offending part.  You know those juries - what if they actually rule for the poor, not for the employers?

So.  10 well-paid, privileged, men and women, used taxpayers' scarce resources, yours and mine, to produce a 25-page full-fledged dissenting opinion explaining in top-lofty legal theory terms why that is wrong.

In that opinion, they talk:

• separation of powers;
• division of powers between the executive and legislative branches;
• what the U.S. Congress may and may not delegate;
• how to read and interpret federal regulations;
• what can and cannot be found through interpretation in federal regulations.

All of that stuff.

And, remember, the famous footnote that spread like wildfire on Twitter.  About separation of powers, circuit splits and being lonely in the universe.

All in favor of powerful employers, restaurants, hotels, casinos, supporting a proposition that such powerful employers may "legally" rob a waiter, a bell-boy, a casino workers who get the majority of their income from tips - of a share of their tips in favor of their other underpaid employees.

I wonder how loud a scream will come from the same 9th Circuit if we "pool" the judges' salaries with those of support staff - secretaries, security officers, custodians.  To even it out, so to say. 

I also wonder, out of the 10 dissenting judges, how many were taken on trips to casinos, were catered for free in restaurants and in hotels, "to sweeten their views of the issues" in this case.

And, you know what I DID NOT see in that 25-page opinion?

A whole bunch of issues that self-respecting jurists should have put for consideration in a case like that.

I did not see in the entire 25-page dissent a verification whether the offending federal regulation in question, the "tip pooling restriction" of the U.S. Department of Labor, that allegedly extended the tip pooling restrictions of Section 203(m) of the Fair Labor Standards Act of 1938, was promulgated by the agency, the U.S. Department of Labor, for the declared purpose of the legislation and for the declared purpose of regulation - protection of the class of individuals covered by the statute and regulation, employees.

Actually, the regulation did seek to protect employees from being deprived by their employers from part of their wages, so it did act for the declared purpose.

After that, usually judicial review of propriety of a regulation STOPS (see, for example, how it usually happens explained from the horse's mouth - by the U.S. Supreme Court Justice Antonin Scalia, in a law review article).  Often it stops even earlier than that.  In most court cases where administrative regulations are being reviewed by courts because of civil rights lawsuits claiming civil rights violations through such regulations, all that courts look at is whether the regulations have a rational basis.  Any rational basis.  Not necessarily the basis declared as the primary goal of the regulation.

In other words, if the regulation declares that it seeks to protect people from something, but actually does the opposite, courts still refuse to review it - saying that, based on the doctrine of "comity", they will not "look behind" the rationally-based text of the regulation to see how it ACTUALLY works.

So, in this case, there was a rational basis, and the court should have stopped.

The 10 judges know that.  They regularly DO that in civil rights cases.

Yet, they disregarded their own principle, and proceeded further.

In this case, however, not only there was a rational basis for the regulation, but the rational basis coincided with the declared goal and the actual effect of the regulation, protection of employees from robbery by employers.

Do the 10 judges know that?  Of course, they do.  They did not get where they are without, mostly an Ivy League law school education, a long career as prosecutors (usually) and, mostly, a long career as judges.

The next point the 10 dissenters are raising is - but, the regulation EXCEEDED protections that the statute provided.

What the 10 dissenters are talking is about excess of authority, by the executive branch (the U.S. Department of Labor), and by their own colleagues, judges of the 3-judge panel, who reversed and remanded the case back to the district court, deciding that the Department of Labor acted properly even if their tip-pooling restrictions are MORE protective than the underlying legislation.

But, wait a minute, are the same judges so consistent in their separation of argument arguments if the matter concerns their own well-being, judges as a class?

Not at all.

There are not just one, not just two, but MULTIPLE, MANY judicially-created "principles" and "doctrines": immunities, deferences, comities, the Rooker-Feldman doctrine, you name it...

To arrive at illegal judicial lawmaking decisions that have introduced immunities-deferences-comities etc. doctrines barring victims of civil rights violations from access to court, courts engaged in all kinds of tricks - the main ones being exploring the so-called "history and tradition", and claiming that "even if the U.S. Congress did not say [this and that] in so many words, it clearly must have implied [for example, to give absolute judicial immunity for malicious and corrupt acts on the bench]" - without any basis for such claims.

These ILLEGALLY created bars to federal jurisdiction - illegally created because determination of the scope of federal jurisdiction is the exclusive prerogative of the U.S. Congress - are applied as if it is "the Law of the Land".

And, the 10 dissenters did not engage in any meaningful analysis of what the U.S. Congress "may have implied" in enacting the Fair Labor Practices Act of 1938, the source of power for the U.S. Department of Labor to promulgate the rules that were sustained as lawful by the 3-judge panel.

Why such a discrepancy in attitude of judges?

Why such high cries, such lofty theory, so much effort extended to a case seeking, simply put, to legalize robbery of the poor (waiters' tips) by the rich (restaurant owners), why all these cries of violation of the doctrine of separation of powers

when the same courts, the dissenters included, SPIT at that same separation of powers from a high bell-tower, so to say?

Of course, courts disregard issues of separation of power when it concerns protection of government officials from lawsuits for treasonous conduct, violations of the U.S. Constitution, filed by victims of such violations - and that's the only, and the whole of the difference, all lofty legal theory in this 25-page dissent aside, witty footnotes and all.

Because here, the 3-judge panel that decided the case (and caused the ire of the 10 dissenters), actually did something right, actually - right by the people, right by the law, but wrong by the courts' self-imposed implied duty to protect the powerful in this country from the reach of statutes and regulations designed to protect the less-powerful from discrimination and infringement upon their civil rights.

Among issues that I did not see in the 25-page dissent, I did not see discussion of this very clear issue - is the involuntary taking of ALL tips of the servers/waiters by the restaurant owners and then involuntary distribution of such tips the way the restaurant owners like - a violation of the tipped waiters/servers due process of law right to property?

I do not share the popular belief that ANY and ALL waiters/servers in a restaurant MUST be tipped each time by every customer.

There are enough stories on the media where angry non-tipped servers describe the bad customers who left without a tip.

If the server provided good service - that is unfair.

If the server provided a bad service - that is exactly fair.

To me, it all depends on the quality of service.

If you come to eat out at a restaurant, and pay extra for your food, as compared to just cooking and eating at home, you expect your experience to be pleasant, and a good server may either enhance the pleasant experience from food and company, or take away from it.

The server cannot answer for the quality of food.

But, the server can answer for being polite, considerate, efficient, and, generally, for making a customer feel welcome.

Why is all of this relevant?

Well, because when a person tips a waiter, the person does not pay the restaurant for the quality of food, it rewards the particular person for doing their job in such a manner that that person, the server, deserves extra from the customer.

And, that extra belongs to the server, and to him or her alone.  Not to be grabbed by the employer, not to be spread out to the kitchen staff or other, less hospitable servers who did not get tipped or who got tipped less.

Stripping the server of that money is not only wrong, it is illegal - as says the rationally based regulation of the U.S. Department of Labor, promulgated for the purpose of protecting those same servers - and actually protecting them.

That privileged and well-paid judges (each of the 10 dissenters gets paid by us the taxpayers $213,300 per year, with benefits), regularly tossing civil rights appeals without a review, found time and resources to expound on how wrong it is not to allow the rich to rob the poor - is simply disgusting.

Despite all the witty footnotes.

The Schultz defense in LA - 1,000 criminal cases fixed over 5.5 years for $8,000 a pop, but judges and prosecutors knew nothing about it

Interesting news are coming from California.

A now-former court clerk, and 10 of his alleged accomplices, were indicted in a federal 38-count indictment for fixing court cases.

1,000 of them over the period of 5.5 years (since 2010), for $8,000 a pop.

Here are the names of the defendants:

And, of course, it is being claimed that judges and prosecutors who were supposed to handle and monitor all those cases were not aware of the case-fixing, where the clerk noted the bought-off cases on the court computers as fines paid when they were not, and as charges reduced when they were not.

I do not know who would believe in this bullshit.

First of all, that shows that judges and prosecutors do not do their job monitoring cases post-conviction.

Second, such a massive bribery scheme, going on over the years and involving 1,000 cases in 5.5 years in the court of one county (one courthouse) is not possible either.

That is 181 FELONY cases fixed in any given year - because nobody will pay $8,000 to pay for fixing a misdemeanor charge.

Not only judges and prosecutors had to be involved, but the charging police officers too.  It is a matter of professional pride, not to mention record of employment, for the arresting officer in each case to monitor how the case progresses.

A lobotomy is required to believe that an officer would not be pissed off that his FELONY cases were reduced to nothing en masse.

And, we are talking about the same Orange County Superior court in California which was recently the center of a controversy where:

• prosecutors did not tell defense attorneys that they were improperly using jail snitches to talk to represented criminal defendants;
• the Sheriff's office (whose various officers serve as arresting officers, jail/corrections officers  and court security officers), knowing all that, were mum about it - for years; and
• the criminal defense attorney who outed the "practice", got beaten up by those "court security officers" in the courthouse - and charged for assault on the security officer.

So, we have a whole lot of grounds to trust in the integrity of prosecutors and local police officers for telling the truth whether they were not involved in the case-fixing.

And, we have a lot of grounds to trust integrity of Los Angeles judges, too - after they

• received, for years, unlawful addition of around $50,000 annually from the County that was appearing in front of them,
• disbarred and put in solitary confinement attorney whistleblower about that corrupt scheme Dr. Richard Fine, and
• when the scandal went too far, the California Legislature gave judges retroactive immunity for CRIMINAL liability - an unheard of thing.

Imagine that you commit a crime, and then the state legislators, to rescue you, gave you immunity from criminal liability going backwards.

Such legislative gifts will are never given to "ordinary Joes".

As to the "we didn't know anything" indictment-for-corruption in the Orange Count Supreior Court, I will continue to cover this story, which has only begun to develop.

Stay tuned.