"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, July 31, 2014

Ethical obligations and sweet dreams of Attorney James Ranous, the Deputy Clerk of the Appellate Division 3rd Judicial Department

My first question to Mr. Ranous, the Deputy Clerk of the Appellate Division 3rd Judicial Department - do you sleep well at night?

Does your conscience bother you?

At least a little bit?

Well, it should.

The Rules of Professional Conduct, applicable to all attorneys, including you, Mr. Ranous, provide that an attorney must (I stress it, must, this is not a discretionary option) report attorney misconduct or judicial misconduct that an attorney knows about.

That may just as well include misconduct of the attorney's employer, no matter how powerful, no matter what consequences to the attorney.

That is a duty that the Rules of Professional Conduct impose upon the members of the legal profession for the protection of the public.

I've written in this blog that the NYS Appellate Division Third Department engaged in an ex parte communication with the Committee for Professional Conduct the moment I mentioned in federal court on my husband's behalf that I am seeking to see the voting record in my husband's disciplinary case and engage an authenticity expert, especially in view of the recent "resignation"of three attorneys from the Committee among investigation regarding investigation for allegedly filing false time sheets.

When the court employing Mr. Ranous engaged in an ex parte communication with the Committee about a CLOSED case and transfer documents sought through a federal lawsuit, what did Mr. Ranous do?

Did he report attorney misconduct?


Did he report judicial misconduct?


Here is the entire correspondence between my husband and the Appellate Division (posted with my husband's permission) that started after the Appellate Division suddenly transferred an long-closed case to the 4th Department, "coincidentally" did it right after I raised in federal court the issue of authenticity and availability of documents in the Committee and did it without showing the application for such an order of transfer to my husband or myself as his attorney.

Document 1.  The ex parte order of transfer.  My husband's case was concluded on July 7, 2011 with the resulting loss of jurisdiction by the court and the Committee.  My case was commenced in January 2013.  My husband's case and my case were never merged (consolidated).  Neither my husband nor I were ever served with the application for this order.

Document 2.  My husband's first letter in response to the ex parte order requesting to disclose authority upon which the order was made and to provide copies of documents upon which the order was granted and documents which were transferred to the 4th Department.

Document 3.  First obnoxious answer by Mr. Ranous ignoring the request for copies of documents.

Document 4.  My husband's second letter to Mr. Ranous repeating his request for copies of documents upon which the ex parte order was granted and copies of documents which were transferred

Document 5.   Mr. Ranous's second obnoxious reply to my husband arrogantly telling Mr. Neroni that Mr. Ranous "was directed to advise" Mr. Neroni that his request "for a copy of all proceedings resulting in this Court's order of June 11, 2014 and for copies of documents transferred has been denied".  

Just like that - denied without an explanation who "directed" Mr. Ranous to answer in this manner, on what grounds or for what reasons.

Today I've read the new lawsuit by Leon Koziol against the Appellate Division Third Department and the Committee for Professional Conduct a portion of which I publish herein (parts of pages 1 and 25):

Document 6.  The first page of Mr. Koziol's federal lawsuit showing names of defendants.

Document 7.   Part of page 25 of Mr. Koziol's federal lawsuit showing that the Appellate Division Third Department engaged in an ex parte communication with the Committee, attorneys Duffy and Zayas, in 2012 and denied Mr. Koziol access to the important documents upon which the court relied in denying him his application for reinstatement of his law license, a constitutionally protected interest.

Document 8.  Part of page 25 of  Mr. Koziol's federal lawsuit showing that Mr. Koziol's second application for reinstatement of his law license was denied because of his political activity protected by the 1st Amendment, posts on his website and anti corruption testimony before the Moreland Commission. 

Document 9.  Part of page 19 of Mr. Koziol's federal lawsuit referenced in Document 8 above.

Document 10.  Part of page 9 of Mr. Koziol's federal lawsuit referenced in document 9 above.

Statements by Mr. Koziol, together with documents from my own and my husband's cases, including my husband's federal lawsuit for access to his own disciplinary file, show clearly that the 3rd Department and the Committee for Professional Standard treat disciplinary proceedings as their own personal fiefdom, do not feel restricted by any rule of law, engage in ex parte communications as a matter of custom and engage in retaliation for pubic criticism of misconduct within the court system also as a matter of custom.

An attorney working within the system, knowing of such misconduct, is obligated by Rules of Professional Conduct to report such misconduct.

In my husband's case Mr. Ranous did the opposite.

He participated in the cover-up and arrogantly told my husband that he was "advised" by an unknown individual that my husband's request of access to the ex parte application to transfer his file 5 hours away from him was denied (see Document 5 above) - no explanations, no grounds, no authority - denied and that's it.

One more example showing that the Rules of Professional Conduct do not apply to the government or friends or relatives of government officials. 

One more example of why attorney licensing do not protect the public, but only protects public officials for accountability for misconduct by giving them power to quash investigation and prosecution against themselves, as well as instill fear in the legal profession and the public by retaliation targeting critics and exterminating their reputation and livelihood.

Once again, so much for the rule of law in the state of New York.

And Mr. Ranous - I return to my initial question - how do you sleep at night?  Any pangs from your conscience?

Didn't think so.

Does it matter who is standing in front of the court when the court decides the issue of standing? In NYS Appellate Division 3rd Department, it does.

On December 13, 2012 the NYS Appellate Division Third Judicial Department decided a case O'Sullivan v. Hallock.

One of the defendants in that civil court case between private parties, siblings, for the allegations of wrongful death of their father and fraud in connection with the estate of their father, was Peter Bracci, political supporter of Delaware County Judge Carl F. Becker, the then Supervisor of the Town of Delhi and the then Supervisor in the Delaware County Board of Supervisors of the Department of Social Services, Judge Becker's pet and client of 27 years.

Another defendant, Mary Bracci Hallock, was Judge Becker's former client herself.

Representing the defendants was the then Assistant Delaware County Attorney (and now the Delaware County Attorney) Porter Kirkwood who was seen engaging in conversations behind the courthouse with Judge Becker during the pendency of the O'Sullivan v. Hallock proceedings.

Porter Kirkwood was at that time a full-time employee of Delaware County and represented these private defendants in court on county time.

It is the same Porter Kirkwood who appears in front of Judge Becker on behalf of the County in child neglect and abuse cases in Delaware County Family Court.

It is the same Porter Kirkwood who, according to witnesses and federal court litigation, controls access of citizens to their own files in Delaware County Family Court and to the files of applicants for gun licenses, something that Porter Kirkwood cannot control but which he nevertheless controls.

Carl F. Becker nonchalantly presided over the case where he had glaring conflicts of interest and ruled that Barbara O'Sullivan has no standing to sue because she was not the executor of her father's estate.

Admittedly, Barbara O'Sullivan was not the executor of her father's estate when she sued.

Nevertheless, Porter Kirkwood who represented Barbara O'Sullivan's siblings, neglected to raise the issue of standing in his pre-answer motion to dismiss or answer, and thus, under the existing New York State law, waived the issue.

Judge Becker rescued a paying case for his former colleague, subordinate attorney and, apparently, friend, by dismissing Barbara O'Sullivan's case for lack of standing where the issue was obviously waived through the neglect of Porter Kirkwood as an attorney.

The Appellate Division affirmed Judge Becker's dismissal on the grounds of standing.

That was on December 13, 2012.

On July 3, 2014 that same Appellate Division 3rd Department reversed the decision of Judge John F. Lambert, of the same Delaware County Supreme Court, on the same issue of standing.

In its decision, Town of Delhi v. Telian, the Appellate Division correctly stated that the issue of standing is waived unless raised in an answer or pre-answer motion to dismiss, which the respondent allegedly failed to do.

Of course, the difference was that, according to the federal lawsuit filed by Mr. Telian on July 29, 2014 in the Northern District of New York, Mr. Telian was not the record owner of the property in question and could not possibly be sued for filing to obtain building permits, on that property so Judge Lambert was indeed correct in dismissing the action - even though the dismissal would be not for lack of standing, but for failure to state a claim.  The Appellate Division could, in its own discretion, dismiss that case as against Mr. Telian, for failure to state a claim, even if Judge Lambert did not dismiss it on that particular ground, simple as a matter of justice, due process and judicial economy.

Instead, the Appellate Division reversed Judge Lambert's dismissal and remanded the case for consideration of a motion for a summary judgment against Mr. Telian, a completely frivolous motion in view of the fact that Mr. Telian was not the owner of the property in question.

Now - the Appellate Division follows the law of standing, to a fault, when somebody who is attacking a judge's friend is involved.

The same Appellate Division would not follow that same law when following it would expose that same friend of that same judge to an embarrassing lawsuit.

Why am I not surprised?

A new civil rights lawsuit was filed in NDNY court by a suspended attorney alleging secrecy and ex parte communications between the Appellate Division Third Judicial Department and its Attorney Grievance Committee. Why am I not surprised?

On July 29, 2014, a federal civil rights lawsuit has been filed by a suspended attorney Leon Koziol in the U.S. District Court for the Northern District of New York.

In the lawsuit Mr. Koziol, a former successful civil rights attorney (what a coincidence! - do they suspend any attorneys other than civil rights attorneys?) alleged that when he applied for reinstatement, the following occurred:

1) the Attorney Grievance Committee sent a secret report opposing his reinstatement to the App. Div. 3rd court, which was in itself an attorney disciplinary violation - but who will prosecute them?  themselves?

2) the court considered that ex parte report which was a disciplinary violation for all judges involved in such a consideration;

3) the court relied upon the ex parte report of the Committee;

4) the court denied the application for reinstatement in reliance on a secret report of the Committee;

5) the court refused to give Mr. Koziol a copy of the report, based on which reinstatement of his law license, a liberty and property due process interest, was denied.

Mr. Koziol's case was handled (coincidentally?) by the same attorney who handled my husband's case and who was handling my own case, up until the time when that attorney, Mr. Zayas, had to resign from the Committee among investigation that he allegedly falsified time sheets.

Since the Committee and the court denied and continue to deny access to the Committee's files to me and to my husband, and since the Committee and the court engaged in an ex parte communication regarding my disciplinary case and regarding my husband's closed disciplinary case (and likely, to thwart his so far successful federal civil rights lawsuit against the court and the Committee), the ex parte communications between the court and the Committee which deems itself a branch of that court, appears to be a pattern.

Now, a question arises.

Where are all those attorneys, including attorneys who are court clerks in the Appellate Division 3rd Department, as well as attorneys who work for the Committee and who are members of the Committee.  Isn't it their duty to report attorney misconduct and judicial misconduct, such as ex parte communications?

Or their duties are only to cover up the assess of their colleagues and persecute critics of judicial misconduct and of misconduct of politically connected attorneys?

And, Mr. Koziol claims in his lawsuit that Mr. Zayas staunchly opposed his reinstatement pointing out at Mr. Koziol's public posts on his website and his testimony before the now disbanded Moreland (ethics in the government) Commission.

It is sad irony that Mr. Koziol was denied reinstatement of his law license for his testimony regarding corruption in the court system before the ethics Commission while now the feds are looking into whether corruption was involved in disbanding the commission that was created by Governor Cuomo allegedly to fight corruption in the government, but was disbanded by Governor Cuomo when the Commission turned its focus on Governor Cuomo's buddies.

Will the feds be able to uncover the full scope of corruption in how the anticorruption committee was created, functioned and was disbanded?

One does not have to have a crystal ball to predict with 100% precision that the New York State Attorney General, this declared protector of the public from fraud, will defend the lawsuit against Mr. Koziol on behalf of the App. Div. 3rd and the Committee, and will defend the unconstitutional actions of the court and the Committee, actions in violations of the oath of office of the judges and attorneys representing the Committee and who are members of the Committee.

The NYS AG will defend engaging in ex parte communications between the Court and the Committee, relying upon the secret report by the Committee to the Court that Mr. Koziol was not even allowed to see and denying a constitutional benefit to Mr. Koziol for simply doing his job as a citizen and exposing corruption in the government - both on his website and before the Moreland Commission.

To defend these indefensible actions and to protect government officials involved in these corrupt acts, the NYS AG's office will expend YOUR money, New York taxpayers and will throw into the defense the resources of the government against the resources of Mr. Koziol, already depleted by years of oppressive litigation.

That is - oppressive litigation to stifle a person who was a civil rights attorney who fought for YOUR rights, New Yorkers, something that the NYS AG should have helped him do, not thwart him in doing.

And, presiding over this lawsuit is - what a coincidence once again! - Judge Gary L. Sharpe, whose son Michael Sharpe, Attorney Registration No. 2731784 is employed by the NYS Attorney General's office.

And the judge's other son Robert A. Sharpe, Attorney Registration No. 2661239 - what a coincidence! - works for the U.S. Attorney General's office.

Thus, the law firm of one son of the presiding judge will defend unlawful actions of the court and the Committee against the victim of their corrupt behavior, among others, denying reinstatement of a law license because of Mr. Koziol's testimony before the Moreland Commission.

The law firm of the other son of the presiding judge will be investigating the corruption in the New York State government that led to disbandment of the Commission before which Mr. Koziol testified - and denied reinstatement of his license because of that testimony.

And the judge, of course, will remain impartial at all times, and there is no way to get him off the case despite his glaring conflict of interest.

How sweet.

First Amendment, anyone?

The rule of law, anyone?

Equality under the law, anyone?

The right to an impartial judicial review, anyone?

Right of access to court, anyone?

Blind justice without regard to people's statuses, anyone?

Yeah, right.

Wednesday, July 30, 2014

Judges for the rich and for the poor in New York State

Whenever this topic comes up in a conversation even with lawyers who are not practicing in upstate New York towns and villages, the information that judges in such courts are not required to be lawyers comes as a shock.

After all, a judge in a local "justice court" in towns or villages in upstate New York has the power to evict people from their homes, to resolve breach of contract claims up for contracts up to $3,000.00, and to conduct jury trials in criminal proceedings and to put people behind bars for a year per count, or for several years if there are more than one count charged against them, to be served consecutively (one after the other) in the local jail.

Moreover, since felonies are charged a lot less than misdemeanors, and misdemeanors are handled by the local justice courts, it may be said that the majority of criminal proceedings in New York are handled by judges who are not required to be lawyers.

Additionally, while the caseloads of such judges are high and the stress levels are similarly high, their annual salaries are, let's say, nominal.

The Sidney Town Court justice reportedly received $2,250 in one recent year and $1,750 in another recent year, according to  Sidney Town Court is a very busy court.

As a comparison, a County Court justice was earning $125,000 before the increase and will be earning $160,000 after the increase.

The average salary in New York State is $41,673.83 in 2010 and I doubt that it raised too much over 4 years.

If $125,000 for a county court judge is not enough, what motivates judges in local justice courts to work for under $2,000 to $4,000 a year?  Do they come to decide disputes for friends?  To settle their own grudges? To pursue their rush for power, which is what former police officers turned justice court judges often do - at least it appears that way?

Imagine - there is NO requirement for ANY level of education to be elected a judge to the local justice court in New York.  Not the ability to read, or write, or count, or reason - not anything!

Since this situation has continued for decades in New York, it appears acceptable for the New York state government that the mostly poor and uneducated people in upstate New York are judged this way.

Abuses of power in local justice courts were reported in New York 8 (!) years ago through a series of articles in New York Times.  The call for reform of those courts was not heard. and everything remains as it was.

What is the difference between the local justice courts, where judges are not required to be lawyers, and the higher courts where judges are required to be lawyers, to justify the distinction?

Is it complexity of cases?

Not really, misdemeanor cases can be as complex as felony cases.  Eviction cases can involve complex evidentiary issues as well.  The complexity of the breach of contract cases is not determined by the amount of money in controversy, and local justice court judges do resolve breach of contract cases for under $3,000 in controversy.

The types of cases handled?

Not really, for example, sex offender cases are equally handled by the local justice courts (misdemeanors) and by the County Courts (on indictments or superior court informations). 

The time served by a convicted criminal defendant?

As I stated above, a local justice court judge may convict a person for several misdemeanors at the same time and commit him to jail for several years, served locally, but consecutively.   That decision may be right or wrong, but the judge has the power to make it. And to do that, a judge does not have to have any education.

In upper court judges decide issues for juveniles that require them to have education in law - is that what allegedly distinguishes the requirement for, let's say, a Family Court judge to be a lawyer  as opposed to a local justice court judge?

Not really.  Local justice court judges routinely handle the so-called "youthful offender" cases which legally transform criminal proceedings into a sealed civil Family Court juvenile delinquency proceeding - without the benefit of a law-educated Family Court judge.

Is it the knowledge by the County, Family or Supreme Court judge as a lawyer that controls the distinction?

Not really.  While there is a requirement for a County Court or Family Court judge to be a lawyer for 10 years before coming to the bench, there is no requirement for that judicial candidate to be a practicing attorney in criminal or family law, or in any other areas of the law he is supposed to handle as a judge, and by the time he or she steps on the bench, the judge who may never have practiced law may have forgotten everything he ever learnt about the law. 

Thus, a judicial candidate can be a person with a heartbeat and a law license - but with no knowledge of the law he or she is supposed to apply in the courtroom. 

It can be a rich man's wife who sat on her law license without using it for 10 years - and then, when her children are grown - suddenly felt the urge to re-enter the workforce, at a prestigious level of a judge no less, while she has forgotten by the time of running for a judge anything she was taught in law school.  It can be a lawyer of either gender who had practiced in a completely different area of the law and having no clue as to what he or she has to do in the courtroom.

It can be a transactional attorney who has never set his or her foot into the courtroom.

It can be a lawyer with a failing practice.  It is not a big secret in the legal profession that often people are running for judgeships not because their law practice is good, but, on the opposite, because it is bad and because they want to secure a stable salary, medical benefits and a pension where otherwise their outlook for a comfortable retirement is bleak. 

So - what is the distinction justifying the lack of a requirement in local justice courts for a judge to be a lawyer and a requirement for all upper courts for the judges not only to be lawyers, but to be lawyers for over 10 years before coming to the bench?

That in upper courts more money is involved in civil cases, cases are decided for richer parties, and judges who preside over those cases are supposed to be "higher quality" judges than "judges for the poor" in the local justice courts, at least by their educational credentials? 

And such "judges for the rich" who survived for 10 years without criticizing the judiciary and thus keeping their license intact are expected to be properly entrenched with the system and to rule they are supposed to rule - for the government and for the rich?

In New York, it appears that way.

Delaware County will bear "some costs" of the new family court judge - how does it mesh with the idea of the County being a party in front of that new judge?

The County of Delaware finally got its with to get a 2nd judge, a dedicated family court judge for Delaware County, by 2016.

It is reported by the same source that some costs of that new judgeship are to be borne by the county.

The county is the petitioner in child neglect and abuse cases in Family Court in front of the same judge whose "costs of judgeship" the County, at least partially, will bear.

If I would be a parent whose children are threatened to be taken away by that new judge, I would be concerned about the conflict of interest that such a situation presents.

An attorney for that parent, would be concerned both for the issue of the judge feeling obligated to the County in his or her rulings, and for his or her license if the attorney raises that issue in court - because, as I have written in my blog before, judges react to such "sensitive" issues with retaliation against the attorney that can cost the attorney his or her livelihood, and there is no recourse through the appellate process where appellate courts usually endorse whatever the trial judge does in retaliating against the attorney for pointing out the judge's conflict of interest.

Family court proceedings are considered civil proceedings subject to the New York State Court Administrations' frivolous conduct rule allowing judges, in their sole discretion, to impose upon parties and their attorneys sanctions of up to $10,000.00, often without a hearing, plus legal fees of the opponent, also often without a hearing. 

Such sanctions may be immediately followed by a disciplinary action against an attorney.

Thus, any attorney representing a parent in a child abuse or neglect case may ponder whether it is worth it to raise the obvious conflict of interest where the costs of a "judgeship" are "partially" borne by a party in front of the judge.  It might be too costly for the attorney to do his or her job for the client and raise this issue.

For that reason, I feel compelled to raise this issue in a blog, without any regard to any case in Family Court, as a general issue of public concern.

A judge simply may not be dependent on the funds from a party which appears before him or her, however "minor" the cost sharing may be.

That must be a given.

Thursday, July 24, 2014

A judicial immunity precedent was created for yet another son-of-a-judge, which will now be applicable to all judges: judges are now immune from suits for trading judicial decisions for sex with litigants. And that is, presumably, for public good... Boy do we need a collective lobotomy!

I have written in this blog about the phenomenon that I came across in my law practice, that seems to be very established in the culture of the legal profession in this country, but which also seems to be a taboo in the media and especially between attorneys, for fear of retribution.

Yet, I believe that the public, the voters for judges, must know that such a phenomenon exists and is wildly proliferant in the American court system.

The phenomenon is called "the new nobility - sons-of-judges".  Of course, the term "sons-of-judges" is general and includes daughters, nieces, grandchildren and other relatives.

What I mean is that relatives, friends, clerks, personnel of judges - whoever is related to judges in any way, shape or form - are immune from real punishment.  They are the modern-time nobility in the United States.

As I wrote in this blog earlier, judges in this country are untouchable by judicial discipline, are untouchable by attorney discipline, and invented for themselves absolute immunity for malicious and corrupt acts on the bench - acts in obvious violation of their constitutional oath of office.

This is a quote from the civil rights lawsuit against the former judge who was involved in the "Kids-for-Cash" scandal where the judge was sentencing juveniles to time in a juvenile facility because the judge received kickbacks from the owners of the facility.   The judge was actually given immunity for this corrupt sentencing - and it was claimed by the court that granted immunity to be in the public interest and to be the law. 

Think about it again - for the judge to commit an unconstitutional act on the bench, in violation of his oath of office to uphold the U.S. Constitution must be for some warped reason protected by common law immunity?  Common law now allows judges to violate the U.S. Constitution by covering them with absolute immunity for corrupt acts?   While there is no clause in the U.S. Constitution allowing anybody to violate it or absolving anybody from abiding by it? 

You know that the strength of any law is in its enforcement.

If the U.S. Constitution cannot be enforced against judges, the most powerful branch of the American government as far as rights of individuals are concerned - constitutional rights of individuals in the U.S. are dead.

Here is the quote of how the federal district court in Pennsylvania wiggles out of the sticky issue of judicial corruption:

“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.

Absolute judicial immunity for malicious and corrupt acts is a relatively recent invention of the courts:  it was only introduced in American jurisprudence in 1978, through a dictum in Stump v. Sparkman, a case dealing with an ex parte order to secretly sterilize a young girl without serving her with a petition for sterilization, allowing her right to counsel or opportunity to be heard and misleading her that the surgery she is undergoing is for appendicitis.

So, it is only for 36 years that America is living in the dark ages while claiming to the world that it is a beacon of democracy.

A judge may not be sued for selling sentences of juveniles for a kickback - according to Pennsylvania District Court.

Now, according to the Federal Court of Appeals for the 6th Circuit a judge may not be sued for trading sex for judicial decisions in a child support/contempt case, also involving jail time.  And - coincidentally - the 6th Circuit made such an interesting decision in favor of the son of the first African American judge appointed (surprise!) to the 6th Circuit

Yes, the judge-father is deceased by now.   But there is still an appearance of impropriety for the 6th Circuit to handle the case - and to render a decision such as this.  And I fully support the attorney for the plaintiff who is planning to appeal the decision to the U.S. Supreme Court in order to loosen (abolish?) this doctrine covering up and protecting self-interest of judges.

In Stump v. Sparkman there was no indication that the judge was bribed or had any personal interest in the case, therefore, the decision in that case covering with judicial immunity malicious and corrupt acts does not have the force of law, constituting the so-called dictum (which the judiciary also is using very selectively - based on the status of who should be protected or punished when a dictum is involved).

In H.T., et al. V. Ciavarelly, Jr.  (selling sentencing of juveniles for kickbacks) the judge had a personal financial interest in the outcome of litigation, which absolutely disqualified him from presiding over the case.  

In New York, for example, Judiciary Law Section 14 provides a jurisdictional bar for a judge to preside over a case where he or she has a personal interest in the outcome of the case (not that the courts are following that statute, but it is at least on the books). 

Of course, it is a due process violation for a judge to preside over a case where the judge has personal interest in the outcome.

If the judge is disqualified from presiding over a case, simple logic prompts that he cannot be immune from suit in a case where he had no authority to preside.  Yet, judges continuously rule in favor of immunity for their colleagues.

Let me ask you a question.

Has corruption among the judiciary become so wide-spread by 1978 and into nowadays that the judiciary feels that it must protect itself from such claims by all means?

Wade McCree, the son-of-a-judge, is also an arrogant moron.   He has triggered his own investigation by complaining against his lover, a woman who had hundreds of incriminating texts and e-mails from him and who claimed she was carrying his child - he complained about her for allegedly stalking him.  He also did that, reportedly, when he was busted by his wife.

The aggrieved lover went to the media - predictably so.

Wade McCree previously mailed his shirtless photo to a married female bailiff.    What did he get for that?  A censure.  Meaning - he was not taken off the bench for engaging in sexual misconduct with a court employee. 

"McCreep" did not learn his lesson.

He engaged in sex with the complaining witness in a felony criminal case, agreed with her on a sentence in the same text message where he discussed the scheduling of the next sex session with her.

And he is still immune from lawsuit by the criminal defendant whom the judge - corruptly - injured in that case.

The only reason why this sordid story came to light is because of supreme stupidity Wade McCree.  Had he not turned the girlfriend into the police, he could have happily proceeded having sex with her in chambers, deciding with her how to rule on cases and sending to her messages about how he thinks about their nights together to the point of ejaculating while on the bench.

So, immunity for "McCreep"  is in public interest - in your interest?  How many more judicial creeps are now encouraged and enabled by this immunity decision?

Meaning - any female can now buy her sentence from a male judge for sex and the judge will get away with it even if caught.  Or, let's be "gender-neutral" here - any male can buy a sentence from a female judge for sex in her chambers?  What is the deterrent - being taken off the bench without being disbarred?  Oh, please.

So - criticizing a judge may lead to a disbarment, but putting people in jail in exchange for sex doesn't?

Why wasn't McCree criminally prosecuted?

Why wasn't he disbarred?

Why didn't the court personnel report him for having sex in chambers REPEATEDLY - there is no way they did not know!

Because of fear?

Didn't we get to a point where judicially became uncontrollable because of their self-imposed immunity?

Let's start reversing this situation by demanding that this son-of-a-judge be (1) criminally prosecuted;  (2) disbarred,  (3) stripped of any immunity from lawsuits, Mr. King's and others, whose cases he discussed with his lover in texts.

To believe that this son-of-a-gun is immune because that is in public interest, we really need a collective lobotomy.

How many other sentences out there were bought for sex?

Easy to pick girlfriends out of litigants and interested witnesses, isn't it?  Such a power rush, too...

How can we believe, especially now, after the "McCreep immunity case", that our prisons are not filled by corrupt and sex-hungry judges?

The rule of law has become a joke.

Do you believe in spirits?

I do want to believe in ghosts after reading the story of the yesterday's execution in Arizona.

Now, in all civilized countries but the United States (if the United States may be called a civilized country in view of its staunch adherence to the death penalty) death penalty is abolished.

I am blessed to live in a state (New York) which imposed an indefinite moratorium on death penalty, hopefully for good.

Yet, death penalty is still "administered" in many states in the United States.

And executions are botched throughout the country, the latest being the execution of Clayton D. Lockett in Oklahoma and the yesterday's execution of Joseph Rudolph Wood in Arizona.

Executions, if the government is to claim that it is a constitutional and not a cruel and inhuman punishment, should at least be quick and the least painful.

Yet, had Mr. Locket and Mr. Wood been simply shot in the head, they would have suffered less than what they had to endure - physically and emotionally.  At least they would have died instantly.

The death penalty is taking of a life, not inflicting pain.

Yet, in this country people are fried in electric chairs or suffocated for hours by using unknown lethal injection drugs information about the government refuse to reveal to the public - with the U.S. Supreme Courts' blessing.

The federal Court of Appeals for the 9th Circuit has granted Joseph Rudolph Wood, scheduled to death by a lethal injection, an injunction to at least verify what drugs are going to be used to kill him.

That was on July 19, 2014.

Within 4 days the U.S. Supreme Court has lifted the stay and sent Joseph Rudolph Wood to die a horrible death.

That is the same court that denies writs of certiorari to thousands of people whose constitutional rights are violated.

In order to deny a human being a basic human and constitutional right to know whether the punishment that is about to be inflicted upon him may turn into hours of torture, and in order to allow the state government to send a human being to a horrible death, the U.S. Supreme Court has all the time in the world.

Did judges who allowed the execution of Joseph Rudolph Wood in Arizona to proceed without disclosing to Joseph Rudolph Wood the manufacturer of the drugs, the names of the drugs and the batch numbers of the drugs which were going to be used in his execution not know that executions by lethal injections were recently botched in Oklahoma, resulting in suffering of the condemned.

Did those judges not know that the American Civil Liberties Union called for an immediate moratorium on death penalty until an independent investigation is concluded into the causes of the horrible death of Clayton D. Lockett in Oklahoma?

Did they not know that the United Nations which the U.S. is part of has a moratorium on death penalty since 2007?

Did they not know that the United Nations has actually called upon the United States after the previous botched execution, back in May of 2014, to impose a moratorium on death penalty in the entire country?

Did they not know that executions in Oklahoma were stayed due to the botched execution of Clayton D. Lockett?

Did they not know that after the horrible death of Clayton D. Lockett a federal court imposed a stay of executions in Ohio?

Of course they knew it.  It was all over the news in the country.  The judges of the highest court in the country may not claim ignorance and stupidity defense in a case this important.  The botched executions throughout the country were the main reason why Joseph Rudolph Wood's attorneys filed a civil rights lawsuit in the first place.  The concerns about botched executions were in the pleadings.

So why did these judges make a decision that has sent a human being, a murderer or not, to at least a possibility of a horrible death by hours of suffocation, a death that even Nazis did not inflict on their victims?

The answer is very simple.

Judicial immunity.

Judges knew that for any judicial decision, no matter how bizarre, no matter how cruel and inhuman, no matter how unconstitutional, their brethren, other judges will always cover them with absolute immunity, to do what they whim from the bench.

The horrible death of Joseph Rudolph Wood was predictable.  And it happened.

I am not a believer in God or any Supreme being.  I am not a believer in spirits or ghosts.

But in this case I want to believe that the afterlife exists, that judges who made the decision denying the stay of execution and denying to Joseph Rudolph Wood knowledge of what drugs were going to be used to kill him (knowledge that could have served to prevent his horrible death), those judges, all of them, should be haunted by the ghost of Joseph Rudolph Wood suffocating on that gurney day and night, for as long as they live, and should rot in hell after they die. 

When Joseph Rudolph Wood murdered a human being, that was wrong and punishment was in order.

When the government suffocated Joseph Rudolph Wood for 2 hours, after denying him the right to know that the drugs to be used in killing him can do just that, that is a punishment long banished from the arsenal of the civilized world.  This is murder, too.

What is most concerning to me as an attorney and a human rights defender is that the United States is openly and arrogantly flouting requests of the United Nations to stay clearly inhuman and cruel punishment of its prisoners.   That is the same United States of America which presides in the United Nations over cases of other countries violating human rights of their citizens or residents.

Another reason why Americans should push for full ratification of the United Nations Convention on Political and Civil Rights by the United States without any restrictions and allowing Americans remedies against their own government that citizens of countries like Belarus have.

At this time, the only remedy Americans have against their government violating their basic human rights seem to be in the belief in the afterlife, and that the spirits of those wronged by the government would haunt the wrongdoers and condemn them after their death.   During our lifetimes - there is no remedy.

A female law professor who teaches how to sue the government for constitutional wrongs should not be protected from sexist comments of male attorneys?

It was reported that a law professor's complaint to disciplinary authorities about allegedly sexist comments on her blog made under a nickname by an attorney was rejected and the investigation against the attorney closed.

The "criticism" that Professor Leong found offensive (and wouldn't you?) was as follows:

“I think she has the right age, gender, credentials, and eager-to-please attitude for an ‘odd job’ I have in mind . . . Basically it involves the girl dressing up as a law professor, bending over, and trying to ask me questions about International Shoe while I spank her with a wet slipper.”

The "critic" also made the following comment about Professor Leong's arguments regarding the so-called concept of "racial capitalism" that she was making:  “Now that is what I call a gravy train or, shall I say, a luau train.  Law professors enjoying a free Hawaii vacation at some seaside hotel.  All they have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approach[es] of reactive commodification,’ while undressing her with their eyes.”

Both comments were made under a nickname.

Women in this country were taught for an eternity to keep their mouths shut and feel honored when males appreciate their beauty, even when women find such comments extremely offensive and demeaning to them as professionals.

Yet, to me as a female attorney and a professional, the comments above appear portraying Professor Leong as less of a professor and more of a porn star.  In other words, it may be perceived as defamation per se.  And in this case, Professor Leong had every right in the world to investigate the identity of the person who has made the comment and pursue him.

Defamation of professional character is not protected by the 1st Amendment.  People who make online comments about professionalism do run a risk of a defamation lawsuit.

What is worse is that Professor Leong found out that the person who has posted these comments is a public official, a public defender.

Public defenders all over the country are claiming of being overwhelmed with caseloads and having no time for anything.  This public defender, on the contrary, has plenty of time on his hands to make wet-dreams comments about Criminal Procedure, Constitutional Law and Constitutional litigation professor who happens to be a young pretty female.

When a public official is advertising his wet sexual fantasies about a female law professor online, and is insinuating, as read by an objective observer, that her work is substandard and the attraction to her lectures is the location where they are given and her physical appearance over which male attendees salivate, this is completely beyond the pale and, in my opinion, must be addressed by attorney discipline.

Moreover, I have no doubt that the complaint would have been granted if the complainant was a judge, so there is no cause for celebration here.

Attorneys are suspended and disbarred throughout this country for criticism of judges, even for criticism in private emails. 

But - Professor Leong is (1) an Asian;  (2) a woman; (3) teaches students how to sue the government for civil rights violations and (4) is not a judge, therefore, her complaint was dismissed. 

Therefore, she is expendable in the eyes of the disciplinary committee. 

I wonder if she can still sue for defamation.

Tuesday, July 22, 2014

Do not ask who shall clean the mess of judicial misconduct. You shall.

In the overwhelming majority of books and law review articles I've read I usually see statements that the majority of judicial profession is honorable, but black sheep happen.

When people talk about numbers (majority-minority), they must have statistics.

Statistics on the issue of judicial misconduct is sorely missing.


Either judicial misconduct is not reported - because of fear of the legal profession,  or it is kept under wraps as "private" and discounted by the disciplinary bodies who, as I wrote in this blog before, act more like glorified shredders of disciplinary complaints than as bona fide disciplinary bodies.

I keep getting phone calls from people whose complaints can be grouped in the following way:

1) my attorney refused to file a motion to recuse against a judge, instead referring me to you - because my attorney was afraid to be "blackballed" (apparently, I am expendable in the eyes of multiple attorneys, and I can be hired to do specifically what those attorneys are afraid to do);

2) my presiding judge is biased, but my attorney refuses to report him to the disciplinary authorities (people often include a list of misdeeds of the judge which, if they are true, warrant taking the judge off the bench);

3) I know people against whom the judge committed the same misconduct as in my case;

4) I want to sue my judge/ my attorney/ both.

When attorneys refuse to report judicial misconduct, sometimes parties report it themselves.

Yet, if complaints by attorneys are discarded without review by disciplinary bodies, the probability that a lay individual's complaint will be so discarded is even higher.

It is summarily regarded as sour grapes of a disgruntled litigant.

The usual responses from the disciplinary bodies are:

1) there is nothing in your complaint that warrants our investigation (even though there is, and plenty - but the complainant has no standing to appeal the dismissal of the complaint in New York);

2) what you are describing is judicial discretion, not judicial misconduct.

Apparently, it is judicial discretion to be biased, to preside over cases where the judge has a grudge against a litigant or bias against a class of litigants (immigrants, people with an accent, people of a certain ethnicity or gender).

Moreover, in our neck of woods, if you dig into many judges' background - and people do dig - you can come up with interesting information about glaring conflicts of interest that judges do not report and punish people when they dare to request recusals based on it.

Conflicts reported to me pertain to judge's marriages, relatives of spouses, relationships between litigants (usually opposing parties) and judge's personnel, judge's financial ventures.

All of that raises serious concerns.

All of that requires serious investigation, including funds and time. 

Lay individuals usually lack such resources, and especially when judges unite in action and start to consistently sanction the "stubborn" reporter of their misconduct, hoping that he or she will shut up if ordered to pay an N number of thousands of dollars in sanctions.

Attorneys can be quickly turned into disgruntled lay individuals since the judiciary holds in their hands attorneys' licensing and, through that, their reputation and livelihood.  Attorneys, therefore, are deathly afraid to bite the hand that feeds them, the duty to their clients be damned.

New York State Commission for Judicial Conduct has neither the resources nor, as far as I know, the budget to handle large-scale investigations of judicial misconduct.

It appears that "serving" on the Judicial Conduct Commission is a type of a line in one's resume to boast of, not a public duty to properly discharge - and discharging such a duty conscientiously can gain a person many powerful enemies, which apparently nobody wants.

Against this background, when anybody says that the majority of the judicial profession is allegedly honorable, and there are rare black sheep, that is an insult collective intelligence of the public.

The public is entitled to know the real statistics of judicial misconduct and how the state of New York is dealing with it.

A person charged with a crime ends up on a police blotter, and whether charges are later dismissed or not, you cannot "unring the bell", the police blotter report remains published, often on the Internet, and that often deals a severe blow to the person's reputation and job prospects.

It is certainly unfair, but that's what is happening to people now in the State of New York.

Disciplinary complaints against judges should be equally reported, so that people would at least have a modicum of control over them and see whether the Commission for Judicial Conduct does its job or should be disbanded and replaced.

Mechanism for disbandment of the Judicial Conduct Commission or replacement of its members or staff because of conflicts of interest, corruption or appearance of the same must be in place.

Legislation should be put in place specifically prohibiting a judge to impose sanctions upon an attorney or party who reported the judge.  If sanctions are contemplated against an attorney or party who filed a disciplinary complaint against the judge, a neutral judge from another area should be assigned to review such sanctions.

Legislation should be put in place specifically prohibiting to impose sanctions for filing a motion to recuse, so that attorneys should not be put in front of a choice - to do their duty to their clients and lose their livelihood or to play the coward and keep their livelihood.  For many attorneys this situation is a no-brainer and is, predictably, decided against their duty to their clients.

Legislation should be put in place making disciplinary proceedings against judges transparent and giving the complainants a standing to appeal dismissals of their complaints.

I am sick and tired of telling people that they are powerless to do anything about their situations because of immunities and the risk of retaliation from judges if they report them or make a motion to recuse.

Judicial profession should be stripped of any ability of acting as petty tyrants and disregarding both the facts and the law (at the trial and appellate levels, state and federal courts), at the expense of the public and, ultimately, undermining the American democracy.

Yet, until more people start reporting judges - with all possible risks involved - and start addressing these problems to their legislative representatives, including through denial of votes to those legislative representatives who refuse to act on such public concerns - nothing will change, and things will only get worse.

Thus, if you want our courtrooms to be free of favoritism, nepotism, backroom dealings with powerful attorneys etc. - or at least to have the courtroom start stepping on that path to self-cleansing - people need to be more active and less afraid of retaliation. 

It is easy for judges to retaliate against people who are not united.  It is easy to present people against whom judicial retaliation is exacted and who are still fighting against it as nuts, being "off the wall", being "disgruntled litigants" etc. etc.

When the actual statistics come out, more people come out, more legislative initiatives come out to fight judicial misconduct - only then we will (possibly) see things changing.

As a practical initial step, I request the public to send to me for publication copies of their complaints against judges.  I will accept only notarized complaints, preferably with supporting documentary evidence - transcripts, other court  or out-of court documents showing the judge's conflicts of interest, favoritism, nepotism or corruption. 

My e-mail is, please, forward your questions there.