"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

Precedential value of dicta: yes, if it provides benefits to members of the judiciary and no, if it provides benefits to parties disliked by the judiciary

The concept of absolute judicial immunity for malicious and corrupt acts is not part of the U.S. Constitution.

It has been a creation of the U.S. Supreme Court, which is itself restricted in its authority by the Article III of the U.S. Constitution, and there is nothing in the U.S. Constitution that allows the U.S. Supreme Court to amend that U.S. Constitution through interpretation, "imputation" or case law.

That said, the U.S. Supreme Court has still ruled in Stump v. Sparkman in 1978 that a judge is absolutely immune, even for malicious and corrupt acts on the bench.

The catch of the Stump v. Sparkman case was, though, that no matter how egregious the constitutional violations were in the case, the decision did not show that the judge had a personal interest in the case or was bought off by the petitioner, and thus, the expansion of judicial immunity to malicious and corrupt acts based on the record of Stump v. Sparkman was a mere dicta.

Yet, this dicta has become a leading precedent on the issue of application of absolute judicial immunity specifically to malicious and corrupt acts on the bench, and has been used like that for 36 years so far since the Stump v. Sparkman decision came down.

In January of 2012 the Delaware County Supreme Court, Judge James C. Tormey, dismissed a lawsuit of a former attorney Frederick J. Neroni against Delaware County Supreme, Family, Surrogate and County judge Carl F. Becker where Frederick J. Neroni was suing Judge Becker for malicious and corrupt acts, and applied the concept of absolute judicial immunity covering malicious and corrupt acts.   The lawsuit against the judge was commenced by Mr. Neroni when he was still an attorney.

In other words, in January of 2012 the Delaware County Supreme Court dismissed Mr. Neroni's lawsuit against a judge for malicious and corrupt acts on and off the bench because of application of dicta from Stump v. Sparkman, the concept of absolute judicial immunity for malicious and corrupt acts.

In December of 2013 the same judge James C. Tormey applied the concept of absolute judicial immunity to my personal lawsuit against an attorney Jonathan S. Follender for defamation and fraud upon the court, and granted that attorney an absolute judicial immunity.

The catch in that case was that Jonathan S. Follender is also a judge in the Town of Denning Justice Court, Ulster County, and that Judge Tormey was usually assigned only to cases of judges and employees of courts, and was assigned likely in consideration of the court system rescuing him unscathed from a federal litigation against him for retaliation.

When absolute judicial immunity is applied, the courts apply it as a jurisdictional bar to all claims, and dismiss cases without reaching the merits.

Mr. Neroni at that time and at present time had a partial summary judgment on liability made against him on the same statute that was dismissed for Jonathan S. Follender where the court did reach the merits of his case, and his law license was taken based on that partial summary judgment, without a hearing, 3 years ago, while the case still proceeds and may be dismissed for failure to prosecute (the motion is pending) or for failure to prove damages or causation of damages at the jury trial.

Since Judge Tormey now says that absolute judicial immunity applies to attorneys, reasonable application of that decision was that Judiciary Law 487, fraud upon the court, was invalidated by Judge Tormey's pronouncement, and the court has abrogated its own subject matter jurisdiction as to all cases of attorneys sued for fraud upon the court, including my husband's.

I immediately applied Judge Tormey's decision and moved to dismiss my husband's proceedings for lack of subject matter jurisdiction in view of newly created law.

Judge Dowd, the presiding judge on the case who was involved in a litigation with my husband, ruled that Judge Tormey's decision is a "mere dicta", that I was collaterally estopped to assert any new law after the summary judgment on liability was granted and that I should have known better than to rely upon the dicta.

I will summarize what I said in a timeline.

1978 - in Stump v. Sparkman the U.S. Supreme Court stated in dicta that judges are absolutely immune for malicious and corrupt acts on the bench, and that dicta has been used to protect judges from such lawsuits for 36 years by federal and state courts;

2012 - Delaware County Supreme Court dismisses Mr. Neroni's lawsuit against a judge based on that dicta

2013 - Delaware County Supreme Court expands absolute judicial immunity for malicious and corrupt acts to private lawyers (in a case where the private lawyer to whom the benefit was given was also a judge of a justice court)

2014 - Delaware County Supreme Court claims that the 2013 decision was a "mere dicta" and refuses to apply that decision to dismiss the pending case against Mr. Neroni for lack of subject matter jurisdiction

I make a conclusion that the dicta only has precedential value when presiding judges need to protect sued judges from liability, and does not have any precedential value when a disliked party, an attorney who sued judges and is quickly disbarred without a hearing after he sued a judge, is concerned.

A dismissal of Mr. Neroni's case would have resulted in an immediate restoration of his law license, which is what Judge Dowd could not allow to happen.

If one considers that Mr. Neroni's lawsuit against Judge Dowd (Neroni v. Coccoma, 3:13-cv-1340) was pending at the time of his decision, where Mr. Neroni questioned mental capacity of Judge Dowd for claiming that a urinal was built by a law school in his honor, as part of a discussion of child custody/visitation on record, intentional retaliation comes to mind.  Judge Dowd imposed costs upon Mr. Neroni for relying upon dicta in making his motion and verbally admonished me for relying upon dicta also, stating that I should have known better than to do that.

Of course, Judge Dowd is himself relying on dicta in Stump v. Sparkman where he made a motion to dismiss based on absolute judicial immunity for malicious and corrupt acts defending against Mr. Neroni's pro se federal lawsuit against him.   Apparently, Judge Dowd did not tell his attorney, the New York State Attorney General, as he told me in my husband's case, that his attorney should know better than to rely on dicta in applying absolute judicial immunity.

 Quod licet Iovi, non licet bovi.  It is an ancient Latin phrase about double standards meaning "what is allowed to Jupiter, is not allowed to a bull".  Yet, because double standards for high-and-mighty existed since time immemorial does not mean that they should exist in a democratic society.

In Delaware County Supreme Court, it appears to be a claim of right for the judges.

The decision of Judge Tormey that Judge Dowd claimed to be dicta was not even dicta, but even if it was, Judge Dowd applied a double-standard to his own right to rely on dicta and denied that same right to Mr. Neroni.  That is exactly what Judge Tormey did where he ruled in Mr. Neroni's lawsuit against Judge Becker that only the New York State Attorney General may decide whether he has a conflict of interest in representation of state actors pursuant to Public Officers Law 17, while Judge Tormey (without disclosure to Mr. Neroni or me as his counsel) raised the very same arguments about the conflict of interest of the New York State Attorney General on his own behalf, where Judge Tormey was sued.

Delaware County Supreme Court appears to have a pattern and policy where judges deny litigants appearing in front of them the same rights they are claiming in individual litigation brought against them.

Nothing like sighted justice and result-oriented jurisprudence in Delaware County Supreme Court.

Should Judge Dowd be taken off the bench for his shenanigans with his off and on application of dicta to judicial immunity for malicious and corrupt acts - with a "yes" if it concerns himself and a "no" if it concerns dismissal of a case and resulting return of a law license to a former attorney who dared to sue Judge Dowd?

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