If I bring an Article 78 writ of mandamus and prohibition against a Referee, CPLR 7804(i) presupposes representation of the court-appointed Referee by the New York State Attorney General, obviously, at public expense, even if the Referee is sued for usurping an elected public office. As I said before in this blog, New York does not have an effective legal remedy to enjoin unauthorized actions of appellate courts and their court-appointed referees or judicial hearing officers because the only venue where one can sue those courts is in those same courts.
(i) Appearance by judicial officer. Notwithstanding any other provision of law, where a proceeding is brought under this article against a justice, judge, referee or judicial hearing officer appointed by a court and (1) it is brought by a party to a pending action or proceeding, and (2) it is based upon an act or acts performed by the respondent in that pending action or proceeding either granting or denying relief sought by a party thereto, and (3) the respondent is not a named party to the pending action or proceeding, in addition to service on the respondent, the petitioner shall serve a copy of the petition together with copies of all moving papers upon all other parties to the pending action or proceeding. All such parties shall be designated as respondents. Unless ordered by the court upon application of a party the respondent justice, judge, referee or judicial hearing officer need not appear in the proceeding in which case the allegations of the petition shall not be deemed admitted or denied by him. Upon election of the justice, judge, referee or judicial hearing officer not to appear, any ruling, order or judgment of the court in such proceeding shall bind said respondent. If such respondent does appear he shall respond to the petition and shall be entitled to be represented by the attorney general. If such respondent does not elect to appear all other parties shall be given notice thereof.
CPLR 506(1)(b) provides that any justice of the Supreme
Court can only be sued under Article 78 for a writ of
prohibition in the Appellate Division of the Judicial District
where the judge or justice serves.
1. a proceeding against a justice of the supreme court or a judge of a county court or the court of general sessions shall be commenced in the appellate division in the judicial department where the action, in the course of which the matter sought to be enforced or restrained originated, is triable, unless a term of the appellate division in that department is not in session, in which case the proceeding may be commenced in the appellate division in an adjoining judicial department; and
Therefore, the only way to sue an appellate judge and an appellate court
is in that same court - which is counter-productive, if not outright stupid,
or both, for obvious reasons.
What remains when the New York State Attorney General wears these hats:
(1) the one of an elected public official and my representative
who is duty-bound to protect me from fraudulent actions and deceptive
tactics of the government;
(2) the attorney for the State of New York and for each and every
one of its subdivisions, which representation includes my
disciplinary prosecutor and my disciplinary court (in the literal
sense - an appeal from the remand is still pending
in the U.S. Court of Appeals for the 2nd Circuit, with the
NYS Attorney General representing the disciplinary
court and the disciplinary prosecutors);
(3) an New York State officer with an exclusive authority to
bring a writ of quo warranto (ousting) proceedings
pursuant to Executive Law 63-B
to oust Stephen R. Sirkin for usurping the power to act as if
he was elected as a Supreme Court Justice and appointed
by the NYS Governor to serve as a justice of the Appellate Division
before Sirkin retired (which never happened), because otherwise
Sirkin cannot be authorized in any way, shape or form to
decide motions in attorney disciplinary proceedings (which he
nevertheless did in my proceeding);
(4) an attorney designated by statute to represent Sirkin if I bring
an Article 78 writ of prohibition against him to stop/enjoin him
from acting in usurpation of powers of duly elected and duly
appointed by the Governor appellate justices, CPLR 7804(i).
So, NYS Attorney General represents everybody in town,
individuals and entities with diametrically opposite and
irreconcilably conflicting interests, and acts as a prosecutor,
a witness, a counsel and a protector to the same people
in various related proceedings. Apparently,
all of these actions of the NYS Attorney General,
including representation, at public expense, of individuals
sued for exceeding their authority, acting without authority,
or acting in malicious and corrupt manner, and representing
at the same time clients with irreconcilable conflicts of interest
is apparently "authorized by statute" in New York.
The same behavior, at the same time, is prohibited to
all attorneys by New York Rules of Professional Conduct,
begging, once again, the question.
If NYS Attorney General, wielding tremendous
power in the State of New York and who can wreak
real havoc in people's lives with this power, is not amenable
to attorney discipline because he is "designated by statute"
to de facto violate Rules of Professional Conduct for attorneys,
why do those Rules and attorney licensing and
discipline based on alleged violations of those Rules
Simply as a means of social control and quashing competition
by powerful and politically connected law firms?
Attorney disciplinary against me proceedings are handled,
allegedly, in order to protect the public from me, but the public is not allowed to see how it is being protected from me, and I am being criminally charged for allegedly attempting to tell the public about how it is being "protected" from me.
And this secret "protection of the public" without
public participation is getting stupider and stupider
by the day.
Isn't THAT proof that attorney licensing should be abolished?