"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 24, 2015

The Mokay saga gets more and more interesting - the Appellate Division gave Mr. Neroni power for the appeal up to the NYS Court of Appeals and the U.S. Supreme Court

I wrote on this blog about the so-called "Mokay saga", a case filed against my husband in 2007, that is still not fully resolved on the merits in 8 years, but that already cost my husband a law license 3.5 years ago without a hearing on the basis of the so-called "collateral estoppel" which presupposes that the underlying case was finally decided on the merits.

I provided in this a legal analysis of issues of the Mokay case showing the unsustainability of the civil lawsuit against Mr. Neroni, of the egregious and pervasive bias of the string of judges assigned to this case, of the refusal of judges to properly apply the law because the lawsuit was brought by the law firm of a former high-ranking judge and his son (who were previously caught by NYS Attorney General in a fraud upon the court scheme, but escaped without any discipline, since a member of the disciplinary Committee was a partner in the law firm representing them) and the court system strives to oblige that law firm in what they want, no matter what the law says.

The case took a weird twist 2 days ago when NYS Appellate Division Third Judicial Department made yet another appellate decision in this case, naturally, against Mr. Neroni, and in that decision, made several astounding blunders which may finally help Mr. Neroni bring this case to justice on further appeals.

I note that the decision was authored by three judges out of the panel 5 judges that I turned into the NYS Commission for Judicial Conduct and to the U.S. Attorney General for investigation of appearance of corruption after Governor Cuomo nominated Judge Leslie Stein of the Appellate Division 3rd Department to the Court of Appeals during the pendency of a case involving NYS Department of Environmental Conservation, and Judges Stein, Egan, McCarthy, Clark and Lynch granted the appeal, with multiple constitutional violations, less than a week after Leslie Stein's nomination.

I also note that that the 3rd Department keeps presiding over cases where Mr. Neroni and I are parties despite repeated requests for disqualifications after the 3rd Department recused in June of 2014 from a case where myself and Mr. Neroni were listed as parties, and after that recusal should have recused from all pending cases where we were parties.

It appears that the 3rd Department clutches this case for dear life so that it can control what decisions are made in the case - and appears more and more incompetent and biased with each successive decision.

Here are at least some of the profound blunders of the 3rd Department that I can readily spot from its January 22, 2015 order in the Mokay case.

BLUNDER # 1.  Hypothetical jurisdiction.  This is the issue upon which I turned this particular court into the NYS Commission for Judicial Conduct multiple times, since 2009.  

Several times my complaints were dismissed at the time when - surprise! - the court's own Chief Judge Karen Peters was a member of the New York State Commission of Judicial Conduct reviewing complaints against her own court.

Judge Peters apparently considered it appropriate for herself to toss complaints against her own court, which, to me, tells much about this judge's integrity.

The concept of hypothetical jurisdiction, a due process violation, arises when the court addresses the merits of the case before it establishes that it has jurisdiction to do so.

The U.S. Supreme Court has ruled back in 1998 that exercising hypothetical jurisdiction is unconstitutional, apparently, to no avail as to judges of this court.  Nearly 20 years down the road, the judges still first review and decide merits of cases and then casually toss constitutional challenges to jurisdiction of the court without any meaningful review, and with a footnote that actually the defendant is somehow to blame for challenging misconduct of judges who are actually engaged in misconduct on his case. 

In regard to hypothetical jurisdiciton, the January 22, 2015 decision in Mokay is a classic.

First, the court makes all its determinations on the merits, and at the very end it addresses the threshold question of constitutionality of Judiciary Law 487 which, if decided in Mr. Neroni's favor, would have stripped the court of subject matter jurisdiction.  Such questions absolutely must be reviewed by the court of any level first, not last.

BLUNDER # 2.  Rubber-stamping the challenged precedent instead of constitutional review of challenge to subject matter jurisdiction is no review at all 

In New York, criminal cases may only be brought in the Supreme Court through the indictment of a grand jury.

What is pending against Mr. Neroni (and cost him his license) is an alleged civil case pursuant to Judiciary Law 487.

In other words, Mr. Neroni is sued for the civil portion of Judiciary Law 487, in a tort called "fraud upon the court".

As any 1st year law school student knows, there is no such thing as an "attempted tort", there can only be an attempted crime.

In New York, courts have a right only to interpret and apply statutes, not to CHANGE them by interpretation.  Amendment of a statute is only within the authority of the Legislature.

Yet, AFTER the partial summary judgment was granted by the Delaware County Supreme Court in 2008 and BEFORE the appeal from that decision was affirmed by the Appellate Division 3rd Department on November 19, 2009, the New York State Court of Appeals, on February 12, 2009, did what it was not authorized to do - it changed the statute, Judiciary Law 487.

The NYS Court of Appeals answered in the affirmative the "certified question" of the U.S. Court of Appeals for the 2nd Circuit as to whether an attorney can be charged in a civil action under Judiciary Law 487 for an unsuccessful attempt to commit fraud upon the court.

The answer to this question should not have even been asked by the 2nd Circuit, because the answer to this question is clear to any 1st year law student as a matter of law, and NYS Court of Appeals definitely does not have power to amend the civil part of Judiciary Law 487 into a criminal part, which the 2nd Circuit court, no doubt, knew.

Yet, the question was asked and answered in the alternative.

A situation arose that Judge Fitzgerald decided in 2008 one case (civil case) and the Appellate Division affirmed on November 19, 2009 a criminal case, since by that time NYS Court of Appeals' decision became "precedent" in the State of New York, and now plaintiffs did not need to show a completed tort to get entitled to damages, only an attempted tort - a complete aberration in legal jurisprudence.

Mr. Neroni made a motion to declare Judiciary Law 487 unconstitutional specifically because the NYS Court of Appeals changed the applicable statutory law (without authority) after the partial summary judgment was decided in Mr. Neroni's case, but before it was affirmed on appeal.

The Amalfitano decision is unprecedented in its separation of powers and due process implications and will not be able to withstand scrutiny of the U.S. Supreme Court if the court accepts the case when it is finally decided.

Mr. Neroni is rightfully convinced that he is being currently prosecuted by 6 civil parties in what has turned into a criminal proceeding, because all they have is an alleged attempt to commit fraud, for reasons that the deeds in question, even though they were recorded, were never delivered, and thus the title to the deeds never passed and the alleged tort of fraud or fraud upon the court, or any other tort for that matter, never completed.  Once again, there may be, under any legal theory, only an attempted crime, not an attempted tort, because an element of any tort is an ACTUAL INJURY, not an ATTEMPTED injury.

What occurs now is that many judges in the State of New York, up to the highest in the state, blundered, and Mr. Neroni suffered as a result of that blunder, and nobody wants to admit to that blunder or correct it - because it will be (1) too much of an embarassment,  (2) nobody wants Mr. Neroni to return to practice and cut into the customer base of local attorneys affiliated with judges; and (3) Harlem Law Firm, a law firm of a former judge (now deceased) and his son wants their compensation at all costs - and it is my experience as an attorney lately that what a judge's relative wants in the State of New York, a judge's relative gets, no matter what the law says.

In its decision of January 22, 2015, the 3rd Department put their proverbial collective foot into their proverbial collective mouth even deeper by making the following statement regarding constitutional challenge to Judiciary Law 487:

In answer to Mr. Neroni's statement that the pronouncement by the NYS Court of Appeals that in a civil action for tort, a defendant may be charged for an "attempted tort" based on the criminal language of the statute, actually turned the civil portion of Judiciary Law 487 (mid-litigation for Mr. Neroni, and unlawfully) into a criminal statute, the 3rd Department simply applied circular logic and stated, essentially that if NYS Court of Appeals said something, it must be good and must stand:

"the Court of Appeals has made clear that '[t]he operative language at issue - guilty of any deceit - focuses on the attorney's intent to decive, not the deceit's success", and "accordingly", the 3rd Department rejected Mr. Neroni's arguments that such a pronouncement changed jurisdiction of a civil action under Judiciary Law 487 from civil to criminal.

Did judges who made this determination go to law school? Of course they did.

Do they know that there is no such thing as an attempted tort?  Of course, they do.

Do they know that the NYS Court of Appeals have no authority to CHANGE Judiciary Law 487 by interpretation? Of course, they do.

Does each and every judge in the State of New York, no matter at what level have the FIRST obligation to maintain the laws and Constitutions of the State and the United State?  Of course, all judges in the State of New York come to the bench based on their constitutional oath of office.

Does the State and U.S. Constitution (due process clause) override any inconsistent decisions ("precedents") of courts of any level, especially those made, as it was in Amalfitano v. Rosenberg, in excess of the Court of Appeals power?  Of course.

But, when NYS Court of Appeals focuses on the criminal "operative language" of a civil statute in claiming that somehow it created a possibility for civil plaintiffs to sue in civil court for what is clearly an attempted crime - and which is not sustainable under any tort theory - the 3rd Department obliged, and voila - 6 private parties may continue to prosecute Mr. Neroni for an attempted tort, based on set of facts that translate into a cause of action - interference with future prospect of inheritance - that New York does not recognize, see Vogt v Witmeyer,87 NY2d 998, 999 (1996).

BLUNDER # 3.   The court once again established unavoidable and irreconcilable conflict of interest and disqualification of plaintiffs' attorneys that should have resulted in dismissal of the case with prejudice, and failure to so dismiss the case can only be explained by bias and hatred of the court against Mr. Neroni, and the desire to please members of the judiciary and plaintiffs' attorney (son of a judge) in continuing to harass Mr. Neroni and drain his resources.  

The action was brought by attorneys representing plaintiffs and a defendant in the same action, attorney fees as the only damages in the case are unsustainable, and the whole case is frivolous.

On January 22, 2015, the 3rd Department confirmed that Mr. Neroni's former client the decedent was one of the alleged co-conspirators to commit fraud in Mr. Neroni's case:  "The trio (including Mr. Neroni's decedent client) concocted a plan...".  

By confirming that the decedent was a co-conspirator - and a proper co-defendant in the action Mokay v. Mokay - the 3rd Department confirmed what Mr. Neroni was saying all along, that the Harlem Law Firm representing both the plaintiffs who were allegedly defrauded BY THE "TRIO" including the decedent, and the Estate (the same as the decedent), forfeited attorney fees claimed as damages by such conflicted representation and not one penny should be awarded to them, as a matter of law.

Therefore, if the court actually holds a jury trial in this case on damages - and especially awards them (which appears to be a pre-judged determination already) - that will be a terrible waste of money for Delaware County taxpayers and a waste of time for the jurors, because as a matter of law the Harlem Law Firm, due to its own disqualification, is not entitled to one penny of , and the litigation that is brewing for 8 years and cost Mr. Neroni his license is FRIVOLOUS and is allowed by the courts to brew only to protect and enrich part of their own clan - the Harlem Law Firm.

BLUNDER # 4.  The 3rd Department keeps changing the New York State recording statute, for which action the court has no authority.  Once again, any 1st year law student who passed a mandatory Property Law course will tell you that the act of recording of a deed in a County Clerk's office creates a constructive notice to the public.

Whether the recording was done with publishing or no publishing option is irrelevant to the notice created.

The court has no right to CHANGE the recording statute to require that the deeds must be not only recorded, but also published.  Publishing is an option, not a requirement, for a reason.

Yet, in order to sustain an unsustainable and frivolous action against Mr. Neroni, the 3rd Department continues to insist in several appellate decisions in this case already, that proof of Mr. Neroni's alleged fraud and fraud upon the court lies in the fact that he recorded the deed, but recorded them with "No publishing" option, which is completely irrelevant under the applicable law.

BLUNDER # 5. Disqualification of a judge.  When a judge recuses from a related proceeding, he is no longer an "arbiter of his recusal" and must recuse from any other proceeding involving the same party.  

The 3rd Department pretended it does not know this due process rule in order to keep incompetent and biased Judge Dowd on the Mokay case, and to sustain its own unsustainable position of sticking to Mr. Neroni's (and my own) cases like glue after recusing from one of cases naming myself and Mr. Neroni's as parties.

BLUNDER # 6.  Portraying a party challenging judicial misconduct as a disgruntled litigant, while being a classic among judges, does not entitle the court to deny a proper challenge of judicial misconduct and disqualification on constitutional grounds.  

BLUNDER # 7.  The court engaged in side-stepping constitutional challenges.  The motion to vacate the summary judgment in the Mokay action was based on the challenge to constitutionality of Judiciary Law 487.  

The claim to disqualification of Judge Dowd was based on due process of law and defendant's constitutional right to a fair and impartial adjudication of claims pertaining to his livelihood and reputation.

There were multiple other constitutional issues raised in the Appellant's brief on this appeal.

Nowhere in the decision of January 22, 2015 will you find ANY references to constitutional challenges, or how they are resolved by the court.

This is the policy of "constitutional avoidance" in action.

Please, bear in mind that the motion for a constitutional challenge of Judiciary Law 487 was brought by Mr. Neroni in state court only after his federal lawsuit on the same subject (Neroni v. Becker) was dismissed on Younger abstention grounds (with sanctions and attorney fees), where the federal court explained to Mr. Neroni that the state court is allegedly competent to review and resolve his federal constitutional challenges.

Yet, Judge Dowd at the motion court level, instead of reviewing and resolving the FEDERAL CONSTITUTIONAL CHALLENGE to the statute, simply stated that what NYS Court of Appeals says must be right, and the 3rd Department on January 22, 2015 said the same.

Rubber-stamping the very precedent that is challenged as unconstitutional comes nowhere near the judicial review that Mr. Neroni was entitled to, and, naturally, Mr. Neroni has a right to proceed challenging constitutionality of Judiciary Law 487 up to the U.S. Supreme Court.

Yet, litigants in  federal courts whose cases are being dumped back into New York state courts on a presumption that state court can review and resolve their federal constitutional challenges, can clearly see that the state courts do not provide ANY review of federal constitutional challenges to state statutes whatsoever, instead unthinkingly rubber-stamping whatever the New York State Court of Appeals pronounces on the issue at hand, even if that same precedent is challenged as unconstitutional.

Maybe, if many people point this out to federal courts, federal courts will finally see the light with their pervasive dismissals of federal civil rights cases on the Younger abstention.

BLUNDER # 8.  The 3rd Department relied, in deciding the Mokay case, the disbarment of Mr. Neroni which was DERIVATIVE on the Mokay case - a clear impropriety and prejudgment.

This is a pure "chicken and egg" situation.  If the Mokay case falls, on any of Mr. Neroni's challenges, or after the trial, the disbarment must necessarily fall, as the decision on liability there was made without a hearing based on the partial summary judgment in the Mokay case (affirmed after NYS Court of Appeals changed Judiciary Law 487 through Amalfitano v. Rosenberg).

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