"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“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. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, May 29, 2014

New York Judiciary Law 487, fraud upon the court - downed twice by two New York courts since 2009, but still alive?

Blunder No. 1.

Judiciary Law 487 is a criminal statute with a civil portion.  It allows a civil action against an attorney who defrauded a court.

In a civil action, as any first-year law student knows, there is no such thing as an "attempted tort" (see Peter Cane, Anatomy of Tort Law, p. 63), because if the tort has been attempted, but not completed, the essential elements of damages and causation of damages are lacking and cannot be proven.

Attempts are the realm of the criminal proceedings, not of civil actions, where the prosecutor is the state, on behalf of the People, and where damage even from an attempt, is presumed.

Yet, because of the stigma attributable to criminal convictions, prosecution for a criminal attempt must comply with Criminal Procedure Law and constitutional law.

As opposed to a civil case, in a criminal case:

  1. The defendant has a right to an arraignment where he may plead "not guilty" and must be advised by the judge of his right to remain silent - there is no such right in a civil proceeding and a civil defendant may be claimed in default for failing to rebut allegations against him.
  2. The defendant has a right to a Bill of Particulars, discovery in accordance to a statute, motions to suppress illegally obtained evidence, including illegally obtained confessions, the right to a jury trial on each and every issue of fact, the right to confront his accusers, to have them testify at trial - in a civil action the right to a jury trial may be easily circumvented by a summary judgment.
In February of 2009 the New York State Court of Appeals decided a case Amalfitano v. Rosenberg, where it ruled that in a civil case under Judiciary Law 487 treble statutory damages can still be awarded for attempted, but not completed tort.  In other words, in view of New York State Court of Appeals treble damages can be awarded where no damages or causation of damages be found as a matter of law, because the tort was not completed. 

NYS COA heavily relied in its decision on the intent of attorney to commit a crime of fraud upon the court.  It is apparent that the resulting NYS COA decision is also about an attempted crime, and cannot legally be about an attempted tort, a non-existing concept.  Yet, that's what we have in New York - a civil portion of a statute and its interpretation by the highest court in the state eliminating that civil portion and converting it into a de facto criminal proceeding prosecuted in the Supreme Court of the state by private parties and without indictment of the grand jury.

Since there is no such thing as an attempted tort, only an attempted crime (as any 1st year law student must know), the New York State Court of Appeals, by its decision in Amalfitano, eliminated the civil portion of the Judiciary law 487 and turned all proceedings pending at that time under the civil portion of Judiciary Law 487 into criminal proceedings. 

The starkly incompetent decision by the New York State Court of Appeals ignored statutory and constitutional law distinguishing torts and crimes and related proceedings, ignored that in the Supreme Court criminal proceedings can be brought only by a public prosecutor and only through the indictment of the grand jury, and ignored the fact that it ruled the now treble damages are allowed by the court where no damages can be found by the jury, and thus the Court of Appeals usurped the function of the jury to find or not find damages in certain cases.

Of course, the New York State Court of Appeals has never announced its monumental blunder, did not apologize, did not revise it, did not retract it and vacate it sua sponte.

Thus, when an attorney is sued for attempted tort, in New York he or she can be de facto criminally prosecuted by private parties without following any criminal procedure or constitutional law that is applicable to such prosecution for attempts.

Good job, New York State Court of Appeals.   Nothing like failing your 1st year of law school's finals.

Blunder No. 2.

On December 23, 2013, in an effort to help out a "brother at arms", a judge of a town justice court,  Delaware County Supreme Court, Judge James C. Tormey pronounced that absolute judicial immunity applies to malicious acts of a private attorney during litigation.

The attorney in question was sued for defamation, fraud and fraud upon the court under Judiciary Law 487.

Absolute judicial immunity, the way it has been constantly applied by New York and federal courts for decades, creates a bar to subject matter jurisdiction of the court.

Thus, after Judge Tormey applied absolute judicial immunity to any misconduct of an attorney during litigation, he abrogated the court's subject matter jurisdiction to review lawsuits against attorneys under Judiciary Law 487.

Delaware County Supreme Court, Judge Dowd, refused to acknowledge precedential value of  Judge Tormey's decision, calling it "dicta", even though it was the basis of the judge's dismissal of a lawsuit alleging malicious and fraudulent acts by an attorney, and thus was not dicta.

It is my legal opinion that (1) Judge Tormey's decision is not dicta and has invalidated Judiciary Law 487 in its entirety;  (2) that the leading "precedent" for absolute judicial immunity for malicious and corrupt acts upon which both Judge Tormey and Judge Dowd relied  in their respective federal civil rights litigation, is dicta, which does not prevent these judges and all courts in the United States, to rely upon it.

Thus, it appears, based on these 2 monumental blunders of New York courts that Judiciary Law 487 was skinned, chopped and thrown away, and yet it continues to be enforced.

This is what we call "the rule of law" in the State of New York.


  1. The opposing lawyer wrote in Defendant's "Findings of Facts & Conclusions of Law" Findings that weren't testified to in court by his client, but the opposite of what Plaintiff and witness testified to. Is it fraud to make a claim on FF&CL that were never testified to?. i.e. Defense claims Defendant built a 20' x 24' addition to a garage. Both Plaintiff and builder testified to builder building and plaintiff paying $10,675 for addition, yet Defendant never testified. Other claims were made against defendants former attorney without concrete proof, while earlier "Motion to Compel" and attached documents show why it took six months to get the bank documents. This case has been railroaded with constant lies that willfully seek to mislead the court. How does plaintiff proceed?

  2. I cannot give legal advice. If you provide to me materials of the case, and with your consent, I can only write about it as journalist.