"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, March 28, 2015

The wonderful world of defaults through the eyes of the sighted Lady Justice

If you visit the courthouse of the Supreme Court of Chenango County, you will see a wonderful and poetically true image of Lady Justice in front of the chambers of Judge Kevin Dowd.

What is so interesting about the large wooden statue of the Lady Justice that is positioned under a glass cover in front of Judge Dowd's chambers in Norwich, NY?

It is sighted.  It has no traditional cover on her eyes.

And that is exactly the kind of justice meted out by Judge Dowd - he always takes into account the political status of the party and the party's attorney when rendering his decisions.  Without fail.

What does the Commission of Judicial Conduct does about it? What it does usually - which is nothing.

The interesting part though is that Judge Dowd is not alone in the "sighted" approach to justice.

I have reviewed court orders of the following judges pertaining to defaults:

Judge Carl F. Becker - O'Sullivan v. Hallock, Delaware County Supreme Court
Judge Molly R. Fitzgerald - Mokay v. Mokay, Delaware County Supreme Court
Judge John F. Lambert (transcript of a motion to reopen the default which was not properly served upon the opponent as ordered in the Order to Show Cause) - O'Sullivan v. Bowie, Delaware County Supreme Court
Judge Kevin M. Dowd - Mokay v. Mokay, Delaware County Supreme Court
Judge (retired) Eugene Peckham - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2007-280
Judge Carl F. Becker - M & C Brothers, Inc. v. Torum, Delaware County Index No. 2011-884

What can I say?

When a party that the court likes defaults, and that is:

(1) parties in O'Sullivan v. Hallock who voted for Judge Becker and were represented by his buddy, now County Attorney and then Assistant County Attorney Porter Kirkwood, were forgiven a default in failure to raise affirmative defenses in standing;

(2) the police officer in O'Sullivan v. Bowie was forgiven his failure to serve Mrs. O'Sullivan with the motion papers in the way required by the Order to Show Cause signed by judge John F. Lambert of Otsego County;

(3) Judge Dowd has forgiven the default of the New York State Attorney General to oppose the Order to Show Cause for a subpoena duces tecum of their records, where no opposition and proof of service of the same was filed before the date and time of review of that motion;  Judge Dowd disregarded the default, accepted the "opposition in a letter" that was sent directly to his Chambers in Norwich instead of being filed in Delaware County Clerk's office, as required by law, with proof of service, and relied upon the "letter opposition" in denying relief to Defendant in Mokay v. Mokay.

(4) Judge Peckham (M & C Brothers, Inc. v. Torum, Index No. 2007-280) has forgiven to an attorney Jonathan S. Follender who was and is a judge of a local justice court, failure to file with the court proof of service of his own Order to Show Cause - and ruled against the attorney's opponents as if they were in default;

(5) Judge Carl F. Becker (M & C Brothers, Inc. v. Torum, Index No. 2011-884) has ruled that parties were in default, in favor of the same attorney Jonathan S. Follender who failed to serve the parties in accordance with the Order to Show Cause and failed to file proof of service before the returnable date of the Order to Show Cause.

In sharp contrast, Frederick J. Neroni who opposed the retired judge and son of a judge Robert Harlem (now late) and Richard Harlem,  was not forgiven failure to oppose legally insufficient arguments of the Plaintiffs in the Mokay v. Mokay matter.   Frederick J. Neroni's arguments at the motion hearing in opposition to the motion for a summary judgment were disregarded and a summary judgment against him was made because of his alleged default.   

That was the decision of Judge Molly Fitzgerald, a Supreme Court justice out of Binghamton, NY, since then supported by judges Carl Becker, Kevin Dowd and multiple judges in the Appellate Division, Third Judicial Department, U.S. District Court for the Northern District of New York and the U.S. Court of Appeals for the 2nd Circuit.

So, if you think that the Lady Justice in the Catskill mountains has a blindfold on her eyes preventing her from seeing the status of the party in order to equally apply the rule of law to everybody, think again, and come and look at the Lady Justice in front of Judge Dowd's Supreme Court chambers in Norwich.

The sighted Lady Justice is actually the true symbol of "justice" meted out in our neck of woods.

If you are not a governmental official, and if you are not represented by a politically connected attorney, your have a reason to be concerned about your chances in the local courts, no matter how right you may be and no matter how much the law may be in your favor.

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