In May 16, 2014 I filed a lawsuit against a number of public officials where, among other requested remedies, I sought disclosure of secret contacts between influential attorneys and law firms with judges who presided and are presiding on my own cases and cases of my clients. I had information that judges are participating in at least certain named "mentoring" organizations and there is, thus, a likelihood that judges are not only engaged in ex parte communications regarding my cases behind my back, but may be provided material benefits by my opponents.
Membership and benefits in such organizations are secret, and the only way to receive that information was through a lawsuit.
I also sought discovery and damages against the federal court and judges whose employee spied on me on the Internet.
Before any Defendants appeared in the action, Judge Glenn T. Suddaby whose recent law clerk was a Defendant in that action, dismissed the action (where Judge Suddaby's court and its individual judges, including the Chief Judge, were defendants), dismissed it "sua sponte" and called it frivolous - that is, instead of recusing and transferring the case to another court.
Judge Suddaby found grounds for judicial immunity even though the information I sought was in regarding judges out of court activities to which judicial immunity does not apply.
The whole concept of absolute judicial immunity for malicious and corrupt acts ON THE BENCH is simply wrong, unconstitutional and self-serving, since it was invented (relatively recently) to protect judges from the civil rights movement, raising recognition of people's civil rights and lawsuits.
Courts routinely state that judicial immunity applies only to judicial acts, acts during court proceedings.
Yet, when anybody tries to test that restriction, usually the restrictions does not work, and in many cases sanctions follow.
In Bracci v. Becker I raised numerous instances of Judge Becker's out-of-court acts, yet, judicial immunity was applied by Judge D'Agostino nevertheless.
I later learnt that Judge D'Agostino is part of the "mentoring" circuit with attorneys who had grudges against me, and I simply wanted to confirm the list of members in that mentoring circuit, what kind of benefits she received and the list of attorneys she met with behind closed doors.
Judge Suddaby protected her by dismissing my lawsuit verifying her possible benefits before she had a chance to appear in the action, and the same for all other powerful defendants.
So, the first step of damage control for the fellow judges was done by Judge Suddaby.
I appealed Judge Suddaby's "sua sponte" dismissal (dismissal on the court's own motion) - and, by the way, the "court's own motion" was never served upon me and I was never allowed to oppose it.
When I appealed Judge Suddaby's decision, I followed the law and did not serve the Notice of Appeal upon anybody- because no parties had a chance to appear on the other side and the dismissal was sua sponte.
Yet, the appellate court, the 2nd Circuit, named all defendants in the case as "Appellees" - parties to the appeal, my opponents. That was against the court's two own recent cases:
1) Boddie v. Alexander, 356 F. App'x 438, 439 n. 1 (2d Cir. 2009) ("Because the District Court dismissed this action before service of process, the defendants listed in the complaint are not parties to this appeal");
2) Petway v. N.Y. City Transit Auth., 450 F. App'x 66, 66 n.2 (2d Cir. 2011) (Because the District Court dismissed [plaintiff's] complaint pursuant to 28 U.S.C. 1915(e)(2) prior to its service on any defendant, no defendant has appeared in the case, either in the District Court or on appeal").
Then, bizarre things started to happen.
The 2nd Circuit court received a letter from the New York State Attorney General dated September 26, 2014, clearly stating the above law and indicating that NYS AG is not appearing in that action on behalf of any Appellees. NYS AG asked the court to remove the NYS AG's office from the list of counsel.
I did not find in the docket of this case any decision of this court on the letter of NYS AG, but it appears that the request was granted without any motions, and NYS AG is not listed on the docket as attorneys for the State Defendants.
Despite the fact that the NYS AG notified the court that, by the court's own recent precedents (2009 and 2011), there are no Appellees in this case, the court stubbornly continued to deem all defendants in the court below as Appellees, see the snippets from the court's docket report as of today:
One Notice of Appearance was filed by Porter L. Kirkwood, Esq., the Delaware County Attorney.
The Notice of Appearance simply stated that Mr. Kirkwood appears on behalf of an "Appellee", without a name. It was clear that such a "notice" was a nullity and had to be rejected by the court.
I notified the court that
(1) there are no Appellees in the action;
(2) that Mr. Kirkwood "Notice of Appearance" on behalf of an unnamed Appellee is a nullity
and requested to remove Mr. Kirkwood from the case.
The court which sent back to me or my husband appealing Pro Se any documents where the court personnel thought any corrections should be made, including a comma (!) on the front page of an Appellant's Brief, was extremely lenient to Mr. Kirkwood.
The court READ MR. KIRKWOOD'S MIND and PRESUMED that Mr. Kirkwood is appearing on behalf of Richard Northrup, Delaware County District Attorney.
Thus, in regards to governmental parties, the court acts as a kind mind-reader and advocate, and in regards to a civil rights plaintiff/appellant the court acts like an evil stepmother inventing for such civil rights plaintiffs/Appellants, like for Cinderellas, a mountain of unnecessary and burdensome activities.
Specifically, for me, right after NYS AG notified the court of the law in the case, that there are no Appellees, by the court's own recent two precedents, the court sent to me a "notice of defective filing" where the defect was "missing proof of service" - and, where there are no Appellees, there is no duty to serve anybody, and thus, the court has no authority to require proof of service upon non-existing parties. Here is the notice:
The "defective notice" with "missing proof of service" was filed on October 27, 2014 (see the runner on top of the document above).
I answered the court that where there are no Appellees, there should not be any service required, and attached to my answer the letter from NYS AG of September 26, 2014, indictating to the court that they were already notified about that not only by myself but by the NYS Attorney General.
Despite that, on November 18, 2014 the court stubbonrly issued a "default notice" to "appellees" and failed to send me a copy of that notice. So, the court engaged in an ex parte communication with non-parties in the action pertaining to the action. Here is the notice:
It is interesting to mention that the above ex parte "Default Notice" of November 18, 2014 does not contain an indication to whom it is addressed.
Yet, the docket report does contain such an indication.
So, a little short of 2 months after the New York State Attorney General notified the court that it is NOT appearing on behalf of any parties in this appeal because, by the court's own two recent precedents, there are no appellees in this case, the court continues to communicate with State Defendants as "appellees", and in an ex parte manner, no less. On an appeal from a civil rights complaint seeking disclosures about possible massive ex parte communications of judges with influential attorneys outside of court proceedings. Makes a lot of sense and raises a question - can the court personnel read?
As you can note, Porter L. Kirkwood appeared in the action on November 26, 2014, 8 days after the notification to State Defendants only. It is unclear how he was notified - by phone, possibly? That is another misconduct on behalf of the court, but - guess what - while applying to themselves absolute immunity for malicious and corrupt acts ON THE BENCH - BECAUSE - allegedly discipline against such misconduct is available - judicial discipline against federal judges is not available if misconduct occurred ON THE BENCH. So, if a federal judge commits misconduct on the bench, short of impeachment, you have no remedies. A motion to recuse is directed to the same judge, and the same judge will - surprise, surprise! - sanction you for making the motion to recuse him/her and award against you thousands of dollars of attorneys fees of your opponent, so that you do not dare to that again in the future. So much for the rule of law, fairness and justice.
In this case, it gets better.
The docket report indicates (I never received any notices of these filings) that:
On December 4, 2014 attorney Barbara Underwood for a number of State Defendants was "terminated".
Nowhere in the docket does it show that Barbara Underwood appeared on anybody's behalf. On the opposite, the letter from NYS AG's office of September 26, 2014 (above) clearly stated that nobody is appearing on behalf of State Defendants becuase, by law, on this particular appeal there are no appellees (opponents to the appeal).
On December 8, 2014 attorney Steve D. Clymer is mysteriously "substituted" in blase of attorney Brenda K. Sannes. Who those people are, I do not know, I was never notified about their roles in this case.
On the same December 8, 2014 the court sent yet another "default notice":
As in the case with the first "default notice", it was sent out ex parte, without notifying me, so it was another ex parte communication with non-parties in my appeal.
As previously, the "default notice" did not list to whom it was sent.
As previously, the docket report on Pacer reflected to whom the default notice was sent.
Of course, the ex parte communication was with judges of the lower court - defendants in the action who were NOT parties in the appeal, by the 2nd Circuit's own two recent precedents. But - when the appellate court engage in ex parte communication with judges, if they are defendants in a civil rights action, in the 2nd Circuit it appears to be ok. Identity of the defendants absolves the appellate court from following the law - that is the only conclusion I can arrive at given the pattern of actions of the court in this case.
On the same December 8, 2014 the court received a letter from the U.S. Attorney's Office on behalf of the above mentioned federal defendants (who never appeared in the action in the court below and, by law, are not appellees in this appeal either, so they are NON-PARTIES).
The U.S. Attorney's letter is similar to the New York Attorney General's letter of September 26, 2014 above, indicating that the U.S. Attorney's office cannot, by law, appear on behalf of any appellees in my appeal.
Both NYS Attorney General and the U.S. Attorney General indicated a possibility that they may appear in my appeal with "amicus briefs", even though there are rules restricting who can file "amicus briefs", and in this situation, neither of the offices qualifies (in my opinion), and if they do file "amicus briefs", they will disqualify themselves as attorneys for parties, should the case be reversed, remanded, and should the defendants be served. I guess, nobody thinks that far into the future.
So, as of December 8, 2014, both the NYS Attorney General and the U.S. Attorney notified the court of its own two precedents and indicated that they are not authorized to appear on behalf of defendants who were not served and did not appear in the action below, and thus are not, as a matter of law, Appellees in this appeal.
The court appears to be deaf and blind to those statements, because the very next day it issues the following order:
There is no explanation as to why my request to exclude Porter Kirkwood, who never properly appeared in the action (appearance on behalf of an unnamed Appellee is a nullity even if there are Appellees in the appeal, and on this appeal there are no appellees, as a matter of law, in accordance to the court's own two recent precedents).
Yet, there is a threat that if I do not serve Porter Kirkwood with my appellate forms, the forms will be stricken from the docket. It is, in fact, a threat to dismiss my appeal if I do not comply with a clearly unlawful order of the court.
I will, of course, comply, to avoid dismissal of the appeal, which does not mean that I concede that the order above is lawful - it is clearly not.
Moreover, on the same day of December 9, 2014 the following second "notice of defective filing" was sent to me.
I am now notified that if I want to strike Porter Kirkwood's appearance, I need to do that with an attending form.
First of all, the court already denied my request, without any forms.
Second, no notices of defective filings were sent to Porter Kirkwood when he did not list the name of the "Appellee" in his notice of appearance, making such a Notice of Appearance a clear nullity.
Instead of rejecting Porter Kirkwood's notice as a matter of law, the burden is put on me to file motions to strike Porter Kirkwood's "appearance", and such a notice is coupled with an order already denying me the request.
So - should I or should I not even bother to file the "missing motion information statement"?
To me, the above means that the court, both judges and personnel, are either biased, or prejudiced, or illiterate (selectively), or all the above.
In my case the harassment unleashed upon me by the court is egregious enough. But civil rights law is supposed to serve the underserved population, the illiterate and borderline illiterate and the poor.
How can these civil rights plaintiffs/appellants fight with this stubborn, arrogant and lawless red tape, issued by courts, with a threat of dismissing the appeal if a civil rights appellant does not comply with a clearly unlawful court order catering for the powerful governmental defendants - who are NOT parties in the appeal, as a matter of law.
Let us also consider staffing of federal courts.
According to vacancies posted on Indeed.com for federal court personnel, federal courts only hire "the best of the best".
The hired court employees receive excellent salaries and benefits, must adhere to a "code of conduct" and serve "at will" "at the pleasure of the court".
Yet, judging by the actions of personnel of the 2nd Circuit court, the main "code of conduct" is not adherence to the law or U.S. Constitution, but serving at the whim of judges who would not adhere to the law where they are inventing unlawful barriers to a civil rights appeal that may affect themselves in a profound way.
After all, they are only "at will" employees serving "at the court's pleasure".
And, once again, so much for the rule of law.
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