On May 21, 2014 I posted a blog about "trick questions" regarding free legal representation of politically connected private attorneys at taxpayers expense.
On June 5, 2014 my husband received an answer to that question from Judge Gary L. Sharpe, and the decision floored me with its intellectual dishonesty, so I believed it is worth it to make that decision public and describe some points of that decision, mainly that Judge Sharpe has created a new assigned counsel class for rich, powerful and politically connected private parties.
Intellectual dishonesty of judges is a major problem in this country, has been for years and is not adequately addressed because of the power of the judges engaged in misconduct to deprive the most likely reporters of misconduct, attorneys, of their livelihood and reputation. Non-reporting of judicial misconduct may and do have devastating consequences to the public, but reporters are stifled and persecuted, and thus, the overwhelming majority of attorneys prefer to err on the safe side and not report judicial misconduct.
Addressing this problem is a scary matter, since the very livelihood of any attorney lays in the hands of the very people (judges) whom the attorney is supposed to criticize - with predictable results.
Yet, I feel it to be my duty as an attorney and as a citizen to continue exposing judicial misconduct that I am aware of, and I will continue to do that whether I keep my law license or not.
As I said above, on June 5, 2014 a new decision emerged concerning my husband where intellectual dishonesty of a judge is clearly at play.
I will later, time permitting, include here the full text of the decision, for people to judge as to its worth, now I will simply make some comments on it. As a disclaimer, I did not represent my husband in these proceedings, he represented himself.
As a premise, let's remember that Judge Gary L. Sharpe who decided the case is a federal judge nominated by the President, confirmed by the U.S. Senate and sworn to protect the U.S. Constitution and federal law - for your sake, my co-citizens and co-taxpayers.
As another premise, let's remember that under the U.S. Constitution that Judge Gary L. Sharpe was sworn to protect the judge has no power to change federal (or state) statutes or the federal Constitution by interpretation - only to apply what is clearly there or reject the law as vague if it is not clear for judicial application.
As a third premise, let's remember that the law firm representing in the action Defendant judge Michael V. Coccoma, the retired judge Eugene E. Peckham and judge Coccoma's wife Ellen Coccoma, employed Judge Gary L. Sharpe's son.
As a fourth premise, let's remember that on May 16, 2014 a lawsuit was filed against Gary L. Sharpe in his individual capacity by me alleging, based on documentary evidence that the court where Gary L. Sharpe is the Chief Judge has engaged in an ex parte investigation of my personal, professional and political background. Since the plaintiff in Neroni v. Coccoma, Frederick J. Neroni is my husband, investigation of my personal background necessarily involved the Plaintiff.
As a fifth premise, let's remember that Judge Sharpe has sanctioned both Mr. Neroni and myself in another case where only Mr. Neroni was a party and I represented him, after I specifically asked Judge Sharpe to step down because the New York State Attorney General's office appearing on behalf of defendants in that case, employed the judge's son Michael Sharpe.
As a sixth premise, let's remember that in the present case, Neroni v. Coccoma, Mr. Neroni made a motion to disqualify Judge Gary L. Sharpe not simply because he sanctioned Mr. Neroni in the past, but because he sanctioned him in an apparent retaliation, after Mr. Neroni pointed out to the judge that he is ruling in favor of his son's employer, without a disclosure to Mr. Neroni or his counsel that our opposing counsel is the judge's son's employer.
Now as to the decision.
I will not provide here a full analysis of its flaws. That is for Mr. Neroni to do if he decides to appeal the decision.
I will just touch upon some points of intellectual dishonesty of Judge Sharpe and his protection of Judge Coccoma, his wife Ellen Coccoma caught in misconduct, the retired judge Eugene Peckham caught in misconduct, and the Supreme Court justice Kevin Dowd who, according to allegations in Mr. Neroni's complaint citing to Judge Dowd's grossly inappropriate and outlandish remarks on record in a court proceeding, may be lacking mental capacity to preside over cases and who openly catered to Ellen Coccoma in a state court proceeding protecting her, as Judge Sharpe did, from discipline.
Judge Sharpe has narrowed the scope of 42 U.S. 1983 and dismissed the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm despite their obvious violations of plaintiff's constitutional rights under the color of state law, because they were not sued as "state actors".
For that contention, Judge Sharpe cites a "precedent" from the U.S. Court of Appeals for the 2nd Circuit:
“In order to state a claim under § 1983, a plaintiff must
allege that he was injured by either a state actor or a private party acting
under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323
(2d Cir.2002).
Here is the full text of the statute itself, 42 U.S.C. 1983:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia".
Thus, under the text of the statute, which controls over any inconsistent case law, the distinction between a "state actor" and a "private person acting under the color of state law" is not even meaningful or relevant for determination of validity of a 1983 claim.
Judge Sharpe was sworn to uphold the U.S. Constitution, not the precedents of the 2nd Circuit, and even not the precedents of the U.S. Supreme Court. He is sworn to make his own independent determinations in interpreting federal law and the Constitution, and apparently he has sorely failed to do that, as the decision shows.
After Judge Sharpe's quotes the case where the 42 U.S.C. 1983 is bifurcated into "state actors", something that does not appear in the statute at all, and "private persons acting under the color of state law", which does not appear in the text of the statute either, Judge Sharpe concentrates on Ellen Coccoma not being a state actor, that Mr. Neroni failed to properly allege her conspiracy with state actors and dismisses the case against her on that irrelevant point.
Judge Sharpe offers several premises in order to dismiss the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm for their actions as private attorneys and law firms:
1/ private attorneys are not "state actors" for purposes of a 1983 action. As the text of the statute shows, that is not a relevant point, because it is about "every person" who violate other people's constitutional rights under the color of state law. There is a Supremacy Clause in the U.S. Constitution that Judge Sharpe was sworn to uphold, and that Supremacy Clause does not contain adhering to precedent that changes a statute through interpretation. Yet, despite the complete irrelevance of this judge-created "distinction", the court spends a hefty paragraph, strewn with citations, proving that Ellen Coccoma was not a "state actor" when she acted as a private attorney (and yet she was represented pertaining to those actions not as a state actor, by New York State Attorney General's office, employer of Judge Sharpe's son, at taxpayer's expense - and that is ok to Judge Sharpe, see discussion of that point below).
Judge Sharpe then cites to other cases which state that:
2/ private attorneys do not act under the color of state law. That is blatantly stated despite the allegations in the complaint, which at the stage of the motion to dismiss must be assumed as true, especially that they are based on state court records, that a private attorney Ellen Coccoma asked the court to use its power to compel a non-party Mr. Neroni into a deposition under the threat of criminal contempt of court, which is a violation of his due process and 4th Amendment rights, and when Ellen Coccoma did that when she has no authority to ask the court for anything because her client has died at that time, and her authority to represent him ceased, while she concealed the fact of her client's death and of her lack of authority when she was asking the court to compel such appearance by Mr. Neroni.
Moreover, the case cited by Judge Sharpe, Dahlberg v. Becker, 748 F. 2d 85 (2nd Cir., 1984), amends 42 U.S.C. 1983 through judicial interpretation in a meaningful way, which is unconstitutional since judges do not have powers under Article III of the U.S. Constitution to amend federal statutes.
Yet, even with that unlawful amendment, my husband's case is winning - but not in the eyes of Judge Sharpe.
By the way, there is a sad irony about Judge Sharpe's choice of a case to cite... In Dahlberg v. Becker the defendant is the judge Becker I write about often in this blog (just word-search "judge becker" in the search window of this blog), who was sued multiple times for his shenanigans as a judge, the latest time on May 16, 2014.
Had Judge Becker been slapped with sanctions in 1984 in Dahlberg v. Becker, he could have thought more about what he is doing now, but alas...
Decisions of Judge Sharpe in this case also perpetuate and reinforce official misconduct of multiple public officials which, I bet, will get worse, encouraged by the sense that the law either does not apply to them or can be bent to save them.
In Dahlberg v. Becker the "under the color of state law" part of 42 U.S.C. 1983 is interpreted as sanction by the state to a private party to abuse the state law.
First, nothing like that appears in the text of 42 U.S.C. 1983, it is a major amendment of a federal lawsuit by judicial interpretation for which a federal judge has no authority under Article III of the U.S. Constitution and the Supremacy Clause that any federal judge, including appellate judges, are sworn to uphold.
When an appellate court, or even a U.S. Supreme Court, issues a decision that exceeds its Article III powers, it is not a precedent mandatory to follow for any federal judge who has sworn separately, personally, individually, to the U.S. Senate and the American People that he will uphold the U.S. Constitution and federal law (statutes) as the law of the land, and not the incorrect interpretations of the same.
Yet, even if the judicially created "rule" in Dahlberg v. Becker were to be applied to Mr. Neroni's case, the state (Judges Lambert and Dowd) did allow Ellen Coccoma to abuse the state statute by ordering Mr. Neroni into a deposition under the threat of contempt of court. Yet, these material details were omitted from Judge Sharpe's decision, apparently to make it easier to arrive at a pre-judged result.
In Judge Sharpe's eyes, Ellen Coccoma did not act under the color of state law. Why? I see the reasoning of the court winding down to a simple "because", because there is no sound grounds to "find" contrary to the facts in the record.
What I call "intellectual dishonesty" of Judge Sharpe is that Judge Sharpe "omits" material facts from his analysis:
(1) the fact that Ellen Coccoma lied to the court by concealing the death of her client for 6 months and by making a motion for a deposition at the time her client was already dead, Ellen Coccoma's authority to represent him stopped, and jurisdiction of the court stopped (abated), too;
(2) the fact that Eugene Peckham and his law firm lied to the court by omission by not disclosing to the court that Eugene Peckham, the previous judge on that same case, is now representing a party in Delaware County Supreme Court, and is doing it when he is also appointed a judicial hearing officer in that same court, which Eugene Peckham knew was contrary against rules of disqualification of judges and judicial hearing officers;
(3) on another issue, Judge Sharpe refused to recuse from Mr. Neroni's case claiming that merely imposing sanctions upon Mr. Neroni in the past does not provide enough grounds for a recusal. The Judge omitted at that point that the sanctions were imposed after Mr. Neroni pointed out that Judge Sharpe decided the case in favor of a party represented by his son's employer and that the sanctions were imposed for everything that the employer asked for, including things that had nothing to do with Mr. Neroni at all.
If one reads Judge Sharpe's decision sanitized from those relevant and materials facts, Judge Sharpe appears to be right on his refusal to recuse.
Yet, when one reads the same decision with all the facts in, Judge Sharpe's decision appears to be simply catering for the high-ranking judges represented by his son's employer. Same as in Neroni v. Becker earlier, Judge Sharpe flies by material facts in order to decide for NYS AG's office and not to sanction any state actors or private attorneys who are related to powerful state actors for apparent misconduct.
Judge Sharpe would rather create a very bad precedent, disenfranchise the voters of the State of New York by legislating from the bench and expanding a New York State statute by interpretation to allow legal representation at taxpayers' expense of a retired judge and a judge's wife, sued as private attorneys.
Now, had Judge Sharpe ruled against Ellen Coccoma, Eugene Peckham and their law firms on this issue, the law firms would have become subject to attorney discipline.
Judge Sharpe's decision protected these attorneys from discipline and allowed Ellen Coccoma and Eugene Peckham a free ride at taxpayers' expense - and gave future generations of relatives of judges sued in similar circumstances for free rides at taxpayers' expense, too.
It is interesting to mention how Judge Sharpe wiggles around to arrive at his decisions, sometimes making diametrically opposite rulings in one and the same decision.
On the one hand, Judge Sharpe points out that Ellen Coccoma is sued predominantly as a private attorney. Yet, Judge Sharpe in the same breath authorizes representation of that private attorney, at the expense of New York State taxpayers by the New York State Attorney General.
Yet, NYS Public Officers Law 17 governing such representation says nothing of the kind.
I've written in this blog about the fact that Ellen Coccoma was denied representation at the expense of her insurance company. Ellen Coccoma never would have applied to her insurance to provide an attorney to represent her in the first place, had she believed she was entitled to representation by the State of New York.
Ellen Coccoma applied for such a representation only when her insurance company turned her and her husband down, based on the contents of the allegations in the complaint which are not covered under the insurance policy, and under New York State policy that intentional acts may not be insured.
Now, Judge Sharpe, in an effort to save both Ellen Coccoma and Eugene Peckham, who was equaly sued for his misconduct while being a private counsel (Eugene Peckham's law firm, without disclosure, represented a party in a case over which Eugene Peckham presided before retirement), and to let them obtain representation at taxpayers' expense, narrowed by interpretation the federal jurisdictional statute, 42 U.S.C. 1983 and expanded the state statute Public Officers Law 17 to allow free representation of private attorneys at the expense of the State of New York taxpayers.
Ellen Coccoma, wife of the 2nd-in-command administrative judge of the state, accepted the freebie that is not authorized by the clear text of Public Officers Law 17.
Eugene Peckham, a retired Surrogate's Court Judge and retired Acting Supreme Court justice, accepted the freebie that is not authorized by the clear text of Public Officers Law 17.
A precedent is created where, if a conflict of interest between private action and action as a public official is alleged, the private actor gets to have a free representation by the State of New York - and that is at the time when over 80% of New York litigants cannot afford an attorney and when parties who accept such freebies are either members or former members of the judiciary or family members of judges.
And courts are talking about presumed integrity of judges and about attorney's alleged obligation to maintain the trust (belief, faith) in that integrity in the public? Only after a lobotomy.
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