"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.

Saturday, January 10, 2015

Everything to save a brother judge from disbarment and being taken off the bench without a hearing

I received yesterday a decision on my motion to consolidate two appeals and recuse the New York State Supreme Court Appellate Division 3rd Department.

This is the same Jonathan Follender who is the author of the following wonderful legal theories:

1) frivolous default caused by an attorney - Jonathan Follender argued it to Judge Carl F. Becker in M & C Brothers, Inc. v. Torum et al, Delaware County Index No. 2011-884;  Jonathan Follender provided to the court no proof of service upon respondents in that proceeding, no proof of my appearance in that proceeding (and there is none in the file).  Judge Becker agreed with Jonathan Follender.

Rules of frivolous conduct definitely do not cover a default, even if the default would be valid.

A court can find a default when the court

(1) has subject matter jurisdiction over the proceedings
(2) has proof of service of the action upon the defendants or respondents, and thus a right to exercise personal jurisdiction over the defendants/respondents.

None existed in the case where Jonathan S. Follender claimed "frivolous default".  Subject matter jurisdiction disappeared 2 days before the initial appearance in the case through a satisfaction of judgment in the underlying action. 

Personal jurisdiction cannot exist where subject jurisdiction does not exist.
Moreover, Follender failed to provide to the court proof of service at all, or in accordance with the Order to Show Cause accompanying the homestead sale Petition.

2) Premature satisfaction of a money judgment - that claim Jonathan Follender made in the homestead petition proceeding above after having the respondents punished in another proceeding for delaying satisfaction of the same money judgment, and after putting an income execution against one of the respondents in another proceeding.  Jonathan Follender was upset that satisfaction of the money judgment prevented him from taking the respondent's house, he argued to Judge Becker that respondents are "cash rich" and Carl Becker listened and ordered respondents to pay fees for Follender and ordering  a frivolous conduct hearing against me (who never appeared in the case and was never retained for the case) long after Judge Becker lost subject matter jurisdiction over the case and knowing it.

3) death of a corporation - Jonathan Follender made a nunc pro tunc motion to replace the deceased Plaintiff when the Plaintiff was a corporation in M & C Brothers, Inc. v. Torum et al, Delaware County Index No. 2007-280 in front of Judge Eugene Peckham, now a law partner in Levene, Gouldin & Thompson, LLP.  Judge Peckham granted the  motion.

4)  loss of companionship of a dog - a non-existing cause of action in New York, with all due respect to animal lovers (including myself).

In none of these proceedings was Jonathan Follender sanctioned.

In none of these proceedings did the court point out to Jonathan Follender that he is doing something wrong.

When Follender, after recusal of Becker from the dead homestead proceeding wrote to the newly assigned judge in those same dead homestead proceedings, Kevin Dowd, and claimed that (1) I was attorney of record in the case, (2) I appealed the case up to the Court of Appeals and the appeal is still pending,  (3) I expressed intent to disobey lawful order of a tribunal by refusal to come to a conference in the dead homestead case, I lost my patience and sued Follender and his client on whose behalf he made those claims for fraud (all Defendants), defamation (all Defendants) and fraud upon the court (Follender and his law firm).

Of course, the "closer" judge James Tormey was assigned to the case because - surprise! - Jonathan Follender is a judge in a justice court in Ulster County, and James Tormey, having cost New York taxpayers $600,000 to settle a lawsuit against him for retaliation against his employee for refusal to agree to conduct political espionage against a Democratic judicial candidate, and having cost embarrassment to the judicial system, it "owed it", and is now assigned to lawsuits against judges, apparently to get rid of them, rightly or wrongly.

Judge Tormey chose the unassailable tactic - to lie in the litigant's face knowing that my only recourse is appeal.

Judge Tormey misrepresented the record by failing to even admit that there are TWO cases involved, one where I was an attorney and one where I wasn't.

Judge Tormey failed to even address the issue that jurisdiction in the 2nd case died before the case initially came to be heard by Judge Becker.  If there was no SUBJECT MATTER JURISDICTION, no litigation-related immunity applied.

Yet, Judge Tormey did apply litigation immunity, punished ME, the victim of Jonathan Follender's misconduct, of frivolous conduct, awarded against ME Jonathan Follender's inflated attorney fees, and imposed upon ME an anti-filing injunction, while dismissing the lawsuit against Jonathan Follender before the answer was filed for insufficient pleadings - which would allow me to simply re-plead, make it sufficient and sue as of right.

By the way, Jonathan Follender defaulted in the case by serving the answer himself while he was the party in the proceeding.

Judge Tormey forgave Jonathan Follender the default also.

So, "frivolous defaults" are found against me where I was not even an attorney of record, and defaults are not found against attorney-judges where they are clear as day on the record and by a statute.

But - wait - Judge Tormey said that there was no way for poor Mr. Follender to even discern whether I was or was not an attorney of record in the second case, it was difficult!

The difficult part, I understand, was to (1) learn the applicable law; (2) look at the record where no notice of appearance was filed, and (3) curb one's rampant greed forcing one to use your opponents as an ATM machine no matter what the law says and whether there is jurisdiction in the case.

I was sick (very sick) at the time the decision of Judge Tormey came.

I asked for an adjournment to file an appeal - Tormey denied it.

I asked for an adjournment to file motion to vacate, renew and reargue - Tormey denied it.

I managed, with the help of a friend who is an attorney, to prepare and to file both the motion, the appeal and opposition to attorney fees on time.

Follender claimed to Tormey that my illness (documented) is a fake and asked Tormey to punish me for claiming a fake illness.  Nice to have a fellow with such a level of morals and integrity for a town justice, people of the Town of Denning, isn't it?

Tormey rejected my motion to vacate, renew and reargue, pointing out the obvious - lack of subject matter jurisdiction in the homestead court because of satisfaction of judgment, lack of litigation immunity for Follender and other defendants because of lack of jurisdiction in the homestead court, obvious fraud when Follender claimed I was attorney of record, "caused the default" in the homestead petition, that it was appealed, that the appeal went to the Court of Appeals from that case, that I intended to disobey a lawful order of a tribunal (an accusation, basically, of a contempt of court - a crime, and a patently false accusation).

But - first things first - Justice Follender (sad irony in the title)had to be protected, because, with an adjudication for fraud and fraud upon the court he would have flown off the bench without a hearing on collateral estoppel grounds.

Tormey did his job.  He protected Follender, he avenged himself for my motion to recuse because Follender asked Tormey to punish me for a federal lawsuit against Tormey mentioning his non-disclosure in a case I filed against Judge Becker (where Tormey The Closer presided) that Tormey JUST had his own federal litigation concluded - in individual capacity - with Attorney General who represented Becker as Tormey's Counsel - a complete disqualification for Tormey to preside over case against Becker.

Tormer obliged and punished me for bringing a federal lawsuit against himself.  

I understand, the mentality is - "move up or move on" - appeal or forget about the constitutional violation, but a judge does not have to disqualify no matter how egregious his conflict of interest is - because nobody ever punishes Supreme Court judges in this state.  Nobody.  Ever.

Moreover, Tormey immediately sent his fraudulent decision where he conflated two underlying court proceedings and punished me for suing Tormey in federal court, into the disciplinary committee, who readily used it on a motion for a summary judgment against me.

Since the decision was used by the disciplinary committee, Tormey refused to grant my motion to vacate, renew and reargue, to keep the disciplinary proceeding juiced up.

Then, the disciplinary committee, on an ex parte application, transferred the case - surprise! - to where the 4th Department disciplinary committee has as members Tormey's court employees.  The 4th Department court denied my motion for disqualification of the Committee where members owe their job security to Tormey

             (who has a history of giving his employees hell if they do not do his bidding,
             no matter how unlawful, see Morin v. Tormey federal litigation that lasted 4.5 years
             and cost New York taxpayers $600,000 plus salaries of New York State Attorney
             General and his personnel to defend the judge for intentional misconduct
             completely outside of his authority)

for conflict of interest without an explanation and locked the record, also without an explanation, notice or opportunity to be heard.

Now when it came to perfection of the appeal, my time to perfect was:

November 4, 2014.

November 4, 2014 was election day, but courts were not closed.

The Record on Appeal was huge, it took all the truck-like trunk of our large car.  We (my husband and I) brought it to the court, only to hear that the court (3rd Department) was closed for Election Day.

We brought the record again on November 5, 2014, it was accepted and time stamped.

In a short time, less than a week, the record was dumped back on my porch.  When I called the court, they explained that certain statements were missing from the record, and I needed to redo the Table of Contents.

Statements that were allegedly missing from the record were IN THE RECORD, moreover, they bore the court's blue-and-red stamps dated November 5, 2014.

To redo a Table of Contents of the HUGE appeal required not days, but weeks.  The Table of Contents that was in the Record of Appeal was just as good, there was no real need to redo it.  Court rules do not require to catalog in the Table of Contents everything within the pleadings.

Yet, for me the 3rd Department always invents new rules.

Together with the record, I filed a motion to consolidate the two appeals (of the dismissal and of the attorney fees awarded to Follender, perpetrator of the defamation and fraud against me) and to recuse the court because of:

  1.  the court's misconduct in a Neroni v. Marten's case;
  2. recusal and transfer to the 4th Department of my disciplinary case on June 11, 2014 and unlawfully blocking my access to the ex parte application for that transfer;
  3. documented misconduct in several other cases.

The court required me to provide to the court Notices of Appeal with Pre-Calendar statements and orders, otherwise the court claimed the motion could not proceed.

Previously, over the 6 years that I practiced in that same court, if I made a motion, I was required to provide these documents (which are normally provided to the court by the clerk where these documents are initially filed), while my opponents made motions without those documents, and when I pointed out the omission, I was told by the court that provision of those documents with a motion was not required by the court rules.  Apparently, court invents extra "rules" for me.

Ok, I provided the "required" documents to the court.

I also delivered the "revised" Record on Appeal for both appeals by the required date in December of 2014.  That was the THIRD time we delivered that huge Record on Appeal to the court, at our own expense, effort and time, while there was nothing wrong with it to begin with - I am preparing Records on Appeal for 6 years and can do it in my sleep.

Yesterday I received a "Decision and Order on Motion" authored by judges:

Lathinen, McCarthy, Lynch and Clark.

 These four wonderful judges tell me, as of January 7, 2015, the following (with my complaint pending against them in the New York State Judicial Conduct Committee and with the U.S. Attorney's office asking for a criminal investigation of corruption in their court):

"ORDERED that the motion to consolidate is denied, without costs, and without prejudice to renewal in the event appellant moves for, and obtains, an extension of time to perfect the appeal taken by notice of appeal dated February 4, 2014".

What extension of time?  I perfected the appeal ON TIME, I brought it in on November 4, 2014, when the court closed its doors on me - while it was not a public holiday.

I brought it the next day, November 5, 2014, and the court stamped and accepted it.

After the court accepted the appeals, I made corrections on it required by the court.  The court did not reject the appeals as untimely - it only asked for corrections, which I made. 

Do the judges who made this decision know what is going on in their own court?

Do they know as of the date of the decision, January 7, 2015, that the appeals were already perfected for over 2 months? And perfected timely?

Why do I need to (1) pay filing fees;  (2) prepare motions to "extend time" when the two appeals are already TIMELY PERFECTED and IN THE CUSTODY OF THE COURT?

Obviously the harassment continues, because I turned the court into the Conduct Committee and the feds and because - surprise! - nobody wants "Justice Follender" to be taken off the bench in the Town of Denning and disbarred without a hearing as a result of my lawsuit against him for fraud and fraud upon the court, which will DEFINITELY have to happen to "Justice Follender" if, finally, hoping against hope, an honest judge actually LOOKS at the facts and applicable law and at the records of TWO underlying cases on appeal.

Then the reversal of Tormey's decisions is inevitable (if the law is to be followed).

Then a judgment against Follender by a jury is inevitable (if the law is to be followed).

Then Follender being taken off the bench on collateral estoppel grounds without a hearing is inevitable (if the law is to be followed).

But - how can the court system allow one of their own to fall so badly?

No - let Follender continue to claim frivolous defaults, deaths of corporations, loss of companionship of dogs and cats, premature and frivolous satisfaction of money judgments against income execution stripping the homestead sale court of subject matter jurisdiction (Follender's real argument!).  Let him commit fraud upon the court as he did in the homestead litigation, claiming, after the court lost subject matter jurisdiction that Tatiana Neroni "frivolously" "caused" the court to lose its "subject matter jurisdiction" because the money judgment was satisfied too quickly while Follender wanted to get a piece of the cash from my "cash-rich" clients - and they satisfied the judgment, sold the house and left the area, escaping his clutches.

Since they left the area, I am the one that needs to be used by Follender as an ATM machine - whether it is lawful or not, but fellow judges will help him do that, won't they?

Let this species of an "officer of the court" continue with his shenanigans, because once one dons a black robe, one gets a black-robed brotherhood that protects him from all legal troubles, at all costs.

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