I wrote in this blog previously about my own and my husband's fight to get access to our own records in the Committee for Professional Conduct, Appellate Division, Third Judicial Department (New York State).
My husband's records are supposed to be public records because my husband was disbarred without a hearing 3 years ago as a result of the still pending Mokay saga.
My own disciplinary proceeding is pending at this time, based entirely on retaliative sanctions of Delaware County Judge Carl F. Becker. I removed it to the federal court, the federal court remanded it back stating that:
(1) I could not invoke the removal jurisdiction on the basis that I could not get equal treatment in state courts because I (guess) did not claim racial discrimination (this condition is not in the statute I used for removal, 28 USC 1443); in other words, because I am white, I cannot claim that I am treated unequally by state courts - makes a lot of sense, as if discrimination is only racial;
(2) another ground was under the so-called Younger abstention because:
(a) there is (allegedly) an important state interest to prosecute me - I wrote about how important that state interest is where the state does not prosecute the worst offenders and instead targets for prosecution political whistleblowers like me and my husband;
(b) the state court is capable of handling my federal constitutional claims.
The point, of course, is not whether the state court is "capable" to handle my federal constitutional claims, but whether it is willing, unbiased and will give me due process of law while handling such claims - yet, the Younger abstention stops in its analysis only at the "competence" of a state court to handle federal constitutional claims.
As soon as the Committee obtained the remand, claiming that the state court is "capable" to handle my federal constitutional claims, the Committee made a motion for a summary judgment without a hearing, claiming collateral estoppel and trying to block me from raising those same federal constitutional claims in state court.
In fact, the Committee very literally stated in their pleadings that I should not be allowed to use the state court as a forum to " air my general grievances about the attorney disciplinary system" - translation - "not be allowed to raise my federal constitutional claims challenging constitutionality of attorney disciplinary proceedings and the applicable law, rules and regulations in the 3rd Department or in New York State".
It got merrier.
When I cross-moved to recuse the court and disqualify the Committee based on irreconcilable conflicts of interest that I quoted in a large affidavit and that I demonstrated in about 100 attached documentary exhibits, the Committee responded with conclusory claims that my cross-motions to recuse and disqualify are frivolous.
I did not receive Committee's opposition papers.
The Committee claimed it sent it to me, I did not receive them.
It took me strenuous efforts to actual get a copy of the opposition in order to be able to file a reply to it, and not from the Committee - the court finally relented and sent me a copy.
I made an affidavit in reply.
The deadline set by the court to submit any more pleadings by anyone - me or the Committee - was over as soon as I submitted the reply.
We were supposed to be waiting for the decision of the court on the Committee's motion for a summary judgment and my cross-motions to recuse, disqualify, dismiss and for sanctions against the Committee for frivolous conduct, and no more pleadings were supposed to be filed.
The Committee had its say by claiming that my motion to recuse and disqualify was frivolous, I had my say stating that the Committee's conclusory position in making such claims was frivolous in itself and asked for sanctions. Nobody was supposed to file any more pleadings - if the court's scheduling orders were to be followed, of course.
Yet, when you are an " arm of the court" where you are litigating your claims, like the Committee is, according to the ruling of the U.S. Court of Appeals for the 2nd Circuit for purposes of immunity of the Committee from lawsuits for misconduct, I guess, you do not have to follow rules that are mandatory for everybody else.
Shortly before my deadline to submit the reply in the disciplinary action, I discovered that I was, likely, investigated in an ex parte manner by the federal court which handled the remand, that a judge of that court, Lawrence E. Kahn, is the president of an Albany chapter of a secret-membership organization where attorneys and judges meet behind closed doors (to promote excellency of the legal profession, as it is claimed), and where judges, according to the scant information available about that secret-membership organization, are wined and dined by the organization for free on a monthly basis, where the tab is paid by influential attorney members, and judges' membership is free - plus judges get perks such as free national and international travel for judges and family members.
I wanted to know (1) whether any of the judges who decided my fate in any way were members of that organization and (2) if they were, who they were wined and dined by, and I believe it is my due process right to know such potentially disqualifying information about a judge who holds my rights in his or her hands.
I filed a federal lawsuit to verify membership in that organization, the American Inns of Court, or in any other similar secret organizations, of all judges (including Judges from the Appellate Division 3rd Department) and as to all attorneys or prosecutors who had ever handled my fate in that organization, because, once again, such a membership is secret and I had no other way to do it but through a lawsuit.
I filed my lawsuit on May 16, 2014.
By the end of May, 2014, counsel for the Committee in my husband's federal action Neroni v. Zayas made a statement that my disciplinary case and my husband's winning federal case are "related cases".
On or about May 29, 2014 I amended the complaint claiming retaliation against me for prosecuting a successful federal case for my husband.
I served over 150 waivers of service in the federal action on June 9, 2014 and June 10, 2014 by certified mail. It takes a day for the mail to get from Delhi, NY from where I sent them to Albany, NY where the Committee and the 3rd Department are located.
On June 14, 2014 I received an ex parte order from the Appellate Division, 3rd Judicial Department (a full panel decision, not including Chief Judge Peters) dated June 11, 2014, the day the court and the Committee supposedly received the waivers.
The order had a combined caption " In the Matter of Tatiana Neroni, an attorney (my bar number) and Frederick J. Neroni, a disbarred attorney (my husband's former bar number)".
First of all, disciplinary proceedings of attorneys are not combined, they are individual, and thus combined captions and combined orders of these kind (I believe) are completely inappropriate and not following the court's rules or the law.
Second, no proceedings against my husband are pending in the 3rd Department - he was, as I stated above, disbarred 3 years ago without a hearing and all motions to vacate the disbarment in that court were denied without an explanation.
The order transferred all of our files, inquiries and "proceedings" to the 4th Department and the 4th Department Committee. The 4th Department Committee has 3 district offices, but the order did not say to which district office the files are being transferred.
There are more catches:
(1) the order was made on an ex parte application of the Committee to allow the "transfer of proceedings" to the 4th Department, which meant recusal of the 3rd Department and self-disqualification of the Committee of the 3rd Department, and that is after the Committee ardently argued that my motion to recuse the court and disqualify the Committee was frivolous, and after all the deadlines to file additional pleadings were over;
(2) the Amended Complaint in the new federal lawsuit, Neroni v. Peebles, specifically charged the court and each and every member of the Committee with retaliation because the Committee's attorney in the federal case, NYS Assistant Attorney General Bruce Boivin claimed in the proposed case management plan in Neroni v. Zayas, the case that my husband's so far is winning against the Committee, that Neroni v. Zayas and my disciplinary case are related cases. Well, the Third Department compounded that problem by putting me and my husband on the same caption and issuing a one-for-two order on an ex parte application of the Committee to sneak away the files I was seeking access to without showing them to me, 5 hours' drive away from me.
(3) The Committee and the Third Department also compounded the problem even more because I, in good faith, consented to stay discovery in the federal Neroni v. Zayas lawsuit where I could have been allowed access to my husband's file this month. I consented to the stay of discovery on request of the Committee, the Third Department and their attorney Bruce Boivin, in order to allow these defendants to make a motion on the pleadings.
Bruce Boivin indicated to me in a conversation that he is not aware whether the Committee even has an archive that I am seeking access to. In other words, what I was seeking access to were the records which were referenced in the Committee's pleadings that the court relied upon when it disbarred my husband, but which were not made part of the record. I also wanted to see records of who voted for investigation and prosecution of my husband and how those records are kept, while Bruce Boivin indicated those records might not exist, raising another interesting host of issues.
There is no appeal as of right from an order of disbarment in New York, other than on constitutional grounds, so my husband's options in addressing what the 3rd Department did in relying upon references to records that were not provided to him or to the court were limited.
I made such an appeal on constitutional grounds after my husband was disbarred. The New York State Court of Appeals cavalierly dismissed the appeal without reviewing it on the merits, claiming it does not have jurisdiction because I failed to allege that my husband's constitutional rights were "substantially" violated.
Meaning - one may violate your constitutional rights, but it may be " insubstantial" and the court, where each and every judge takes the oath of office claiming he or she is going to uphold the U.S. Constitution, dares to pick and choose which constitutional violation was "substantial" and which was " insubstantial" for their review - without any criteria set for such a determination and no authority set in the U.S. Constitution for anyone to make such a determination.
Returning back to our conversation with Bruce Boivin as to access to my husband's file in the Committee, the discovery was stayed, not cancelled.
While the discovery was stayed, and while real issues existed whether the Committee even has the records it claimed to the court it had, and how the Committee maintains its archive, the Committee, in a secret, and I would say, stealthy way, obtained an ex parte order of transfer whatever it had or did not have on my husband to the 4th Department.
There was no proceeding involving my husband at that time from which the 3rd Department would derive jurisdiction to transfer anything anywhere.
The 3rd Department, in transferring my husband's files, acted in clear absence of all jurisdiction, and in clear response to a lawsuit, trying to hide the files.
Moreover, we do not even know where in the 4th Department the files are transferred, because the 4th Department Committee has 3 district offices, and no district office is designated for the transfer of the files in the ex parte order.
Neither my husband nor I were put on notice that the files are being transferred, otherwise I would have required to have access to the file and to inventory the files before they are transferred.
Now, the Committee can claim that they faithfully had all the necessary files, but - oopsy - they were lost in the transfer or that the other Committee lost it.
My husband has no proceedings pending against him in the 3rd Department.
He is already suing the 3rd Department and the Committee for access to his files.
Bruce Boivin announced to the court just before the ex parte order that he does not know what I am talking about, that the files of my husband are readily accessible to me in the Appellate Division, I only have to make an appointment.
It is a completely different matter to have to travel to wherever the files are now in the 4th Department, it can be in Rochester, Syracuse or Buffalo where the district offices are located.
Therefore, if any applications are made pertaining to my husband's files, when all proceedings against my husband in the 3rd Department are over, my husband personally or I as his attorney should have been put on notice if his files, especially the files we could not access to for years, are transferred anywhere, with a possibility of loss in transit.
Upon my information, the Third Department does not allow ex parte applications, and any orders to show cause filed ex parte must still be served upon the opponent.
Nor is there any basis for any show cause orders in my husband's case where the court has LOST SUBJECT MATTER JURISDICTION, for God's sake - don't they realize that - at the time it disbarred my husband 3 years ago.
Now the Third Department set a precedent that the Committee for Professional Conduct is allowed to file ex parte applications, especially when it has a design, together with the Third Department - to create circumstances that would allow the Committee to claim that they had files that they may not have had and that they blocked access to to my husband and me for years, while that evidence is sought in a federal action.
How many lawsuits should we file to address all misconduct of these guys?
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Subscribe to:
Post Comments (Atom)
System making their own rules to suite themselves !
ReplyDeleteAnd why am I not surprised... The Committee and the courts colluded between themselves to move evidence (or pretend to move it, since it might not even exist) outside of our reach, the federal court, Judge Kahn, NDNY, denied my request for urgent discovery without an explanation, practically allowing the Committee more time to destroy the evidence sought in a federal case, NDNY judge Suddaby dismisses sua sponte the case against Judges Kahn, Peebles and Chief Judge Sharpe, in individual capacity, for actions outside of court proceedings - these people deem their public positions as fiefdoms entitling them to do whatever they want... The rule of law... Right.
ReplyDelete