"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.

Tuesday, August 12, 2014

Discrimination and misconduct against a pro se party by the U.S. Court of Appeals for the 2nd Circuit on an appeal involving a judge

My husband was prosecuting an appeal in the 2nd Circuit, and doing it pro se.

I filed that appeal in the court below, because I was his attorney in the court below, and the clerk in the court below rejects pro se appellate filings if in that court a person was represented by counsel.

Yet, my husband wanted to proceed pro se on the appeal.

For that reason, he filed all the appropriate forms required of pro se parties, including an "Acknowledgement and Notice of Appearance" as a pro se party.

I personally served those forms by mail on July 18, 2014.

After Mr. Neroni's letter to the 2nd Circuit of July 18, 2014, with forms, announcing to the court that he is proceeding on the appeal pro se, I continued to receive e-mail notifications that the court sent to me instead of him as a pro se party.

On July 24, 2014, I received an e-mail notification that, unless Mr. Neroni files "forms D and C", his appeal will be dismissed by August 4, 2014.

Of course, since Mr. Neroni by that time was a pro se party, the notification sent to me was not a valid service to him.

Moreover, since Mr. Neroni was a pro se party, the court could not require him to file D and C forms, required only of parties represented by counsel, and could not threaten dismissal of a properly filed (and paid for) appeal.  That's an equal protection issue and access to court issue.

Also, 2nd Circuit clerks outdid themselves (in - ahem - disingenuity it is called politely) by sending to me an e-mail saying that "Pro Se materials" were sent to me - instead of to Mr. Neroni.

Sending Pro Se materials, by email notification, to an attorney - indicates that the court clerks knew by that time what they are doing, that they were dealing with a pro se party, and still were sending the Pro Se Materials, to a Pro Se party, to his wife by email instead of to him by mail.

I consulted with the local post office and they told me that it takes a maximum of 3 days for the mail to travel to NY city (as it was later confirmed when Mr. Neroni resent his forms by certified mail, with tracking).

Thus, by July 23, 2014 the court already had Mr. Neroni's pro se forms sent on July 18, 2014 (above).

Yet, it did not deter them to send TO ME the below email "Pro Se Documents, to attorney Tatiana Neroni, SENT", on July 23, 2014.

Mr. Neroni called the clerk's office in my presence and asked them why are they doing what they are doing when he already filed pro se forms as of July 18, 2014.

The clerk's office responded that they never received the forms.

Now, this is another point of discrimination against pro se parties - denying them opportunity to file electronically as of right, as attorneys are allowed to do, and thus putting on pro se parties more costs and more inconvenience by having to print and send submissions by mail and run the risk that the clerk's office will claim it never received them.

The clerk of the court also explained to Mr. Neroni that the forms that he said he filed were the correct forms, and that he is not required, as a pro se party, to send forms D and C, as such forms are only required from counseled parties.

The clerk of the court encouraged Mr. Neroni to re-send the same pro se forms he has sent on July 18,k 2014 and that the court allegedly did not receive.

Mr. Neroni braced himself and re-sent his forms, already sent on July 18, 2014, to the 2nd Circuit, now by certified mail,  with an accompanying letter protesting discrimination against him and sloppy practices of the clerk's office of the 2nd Circuit.

I will only include here the letter, as what was included with the letter is already published above.

The tracking by USPS of Mr. Neroni's forms now sent to the court by certified mail shows that the 2nd Circuit has received those forms on August 4, 2014.

In the letter accompanying the forms (see above, letter of August 1, 2014) Mr. Neroni pointed out that this is not the first time that the clerk's office of that particular court loses correspondence and sends notifications to the wrong party.

I also note that there is a lag of filing in the court of approximately 2 weeks between the date the court actually receives the filing by mail and actually files it and sends out notifications - as demonstrated in appellate cases, my records of when I've sent certain documents for filing to the court and notifications I received from the court.

Yesterday, I (again!) received a notification that Mr. Neroni's appeal was dismissed because of Mr. Neroni's alleged default.  

Yesterday was August 11, 2014.  Mr. Neroni notified the court that he is representing himself as of July 18, 2014 and, by certified mail, as of August 1, 2014, received by the court (confirmed by USPS) on August 4, 2014. 

What was the default?  Failure to file forms D and C - counseled forms!  Declaring a default on August 11, 2014 because Mr. Neroni did not submit "counseled appeal forms" that he was not required to submit (according to the court clerk's advice to Mr. Neroni on the phone), and sending notification of that default, again, to me, was clear misconduct. 

The picture is clear:  despite multiple notifications, the court still continued to treat Mr. Neroni as a counseled party, send correspondence to me instead of to him directly and finally punished Mr. Neroni for non-compliance with the form he was not required to comply with, as the court's own clerk told Mr. Neroni.  The notification of punishment was also sent to the wrong party, myself.

If the court chooses to stick to its obviously wrong default decision, Mr. Neroni has only one recourse - to appeal further, to the U.S. Supreme Court where he does not have a right to appeal as of right, and while everybody knows that to get a "cert" to the U.S. Supreme Court is like for a camel to get through a needle's eye.

So, what recourse does Mr. Neroni have if the court will not graciously correct its own grievous mistake?  None.

Of course, Mr. Neroni sent to the 2nd Circuit yet another letter trying to alert them to the problem in how they treat (or, rather, mistreat) pro se parties, enclosing as attachments all documents published above.

But - based on prior correspondence, most likely it will be once again a voice hollering in the wilderness.

My question to the public is - who are those people working in the 2nd Circuit who are paid by taxpayers to ensure people's access to court? 

Do they have any education? Do they know how to read?  Do they know how to apply their own rules?  Were they trained how to deal with pro se parties? Were they trained how to deal with civil rights cases raising issues of public concern?

Do they have any conscience when they are discriminating against a 67-year-old pro se party in such a way and upsetting him by their outrageous actions?  Apparently, Mr. Neroni cannot sue the clerks of the court or the judge who issued the order for, basically, taking his money for the hefty filing fee and not doing their jobs - because they are absolutely immune from suit, even for malicious and corrupt actions.

To say that all of the above discrimination is somehow for public interest is to insult anybody's intelligence.

"Coincidentally", the appealed case was Neroni v. Becker against judge Becker, and my question is - should protection of Judge Becker go that far, to the point of breaking the law and engaging federal appellate clerks and judges in misconduct?

After this blog was last updated on August 12, 2014.

I really do not know what to do - to laugh or to cry...

As I was publishing this blog, yet another email notification arrived - again about Mr. Neroni's pro se appeal, again sent to me, and again notifying me that Pro Se documents were sent.

I asked the court, by e-mail, to stop sending me notifications about Mr. Neroni's pro se appeal and explained that service of anything in this appeal upon me after Mr. Neroni notified the court he is proceeding pro se is not valid.

The interesting part is that I am not admitted to the bar of the 2nd Circuit (but am admitted to the court below - Northern District of New York), and consent to change counsel under these circumstances so that Mr. Neroni would proceed pro se was not required.  He only needed to notify the court, and he did, three times in writing and two times on the phone in my presence.

My next question is - why Pro Se documents are sent to anyone where the court already dismissed that appeal?  

And why Pro Se documents are - again - sent to an attorney?

And I repeat my earlier question - what kind of people work in the clerk's office in the U.S. Court of Appeals for the 2nd Circuit?

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