"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.

Monday, June 29, 2015

Trial rules of Judge Kevin Dowd: leave those pesky time-lines and counting skills to 1st graders when another judge's backside must be covered

Below is the table with the list of parties in the Mokay litigation, where there were 5 parties (children of the decedent) between June 2007 and March 2008, and 6 parties (children of the decedent + the decedent/ his Estate from March 2008 to present time).

Time period
Names of parties in the Mokay action
Number of parties
Were damages awarded for the period of June 2007 to March 2008 by Judge Dowd in the June 12, 2015 decision?
June 2007 to March 2008
1.       Andrew Mokay
2.       Daniel Mokay
3.       David Mokay
4.       Christine Reed
5.       Patricia Knapp
5 parties
Yes, to 6 plaintiffs
March 2008 to present time
1.       Andrew Mokay
2.       Daniel Mokay
3.       David Mokay
4.       Christine Reed
5.       Patricia Knapp
6.       Estate of Andrew Mokay (father)
6 parties
Yes, to all plaintiffs, including the Estate, for period of June 2007 to beyond the trial date of April 7, 2015
As is evident from the table, the presiding Judge Dowd awarded, as damages, to 6 parties, including the Estate, attorney fees of 5 parties for the period of June 2007 to March 2008, when the 6th party was not a party to the litigation - and awarded those damages to the Estate as treble damages (times three). 

One does not need a full elementary, middle or high school education, a college or a law school education to be able to count on 10 fingers 5 versus 6.

If the 6th party was not there in the Mokay action, it was not represented by Harlem & Jervis there, and it could not claim that it generated legal fees from June 2007 to March 2008 in the Mokay action, while not being a party there - or to ask the court to deem those fees damages of the Estate under an unknown legal theory, and to treble those damages.

In fact, such a claim is an open fraud upon the court, where attorney Richard Harlem who testified at the ex parte trial in the Mokay case, claimed, on behalf of the Estate, that the Estate has somehow managed to generate legal fees in the Mokay case for the period of time when it was not a party in the Mokay case.

Did Judge Dowd punish Richard Harlem for frivolous conduct?

Not at all.

Judge Dowd apologized to Richard Harlem for inconvenience caused when Judge Dowd asked Richard Harlem to make post-trial submissions as to which of the attorney fees Richard Harlem claims as damages - and Richard Harlem claimed the fees for ALL plaintiffs (including the Estate, not a party in the Mokay case from June 2007 to March 2008) for the period including June 2007 to March 2008.

For Judge Dowd, the trial itself was an unnecessary technicality, he knew how he (or rather, his law clerk Claudette Newman) will rule before the trial even started. 

And that technicality was a necessity to cover up misconduct of outgoing judge Carl F. Becker who already GAVE Richard Harlem as the Estate's attorney, through Surrogate's Court, over $48,000.00 for representation of all plaintiffs in the Mokay action - and that was in July of 2011, 4 years before the ex parte Mokay trial.

Look how Judge Dowd rules as to how "plaintiffs" (all of them) are entitled to treble-attorney fees/ damages.

This is the list of plaintiffs, the caption of the decision that arose out of the ex parte trial of April 7, 2015.  The Estate is listed as a party:

This is the excerpt from the decision of January 22, 2015 of the Appellate Division 3rd Department positioning the decedent/Estate as one of the tortfeasors (which means that the Estate must be a defendant in the action, may not be represented by the same attorneys as plaintiffs, and, if it is so represented, attorneys for the plaintiffs forfeited, as a matter of law, all legal fees for the conflicted representation):

Here is the description in Judge Dowd's decision of June 12, 2015 as to how plaintiffs (all of them, including the Estate), suffered damages, even though Dowd recites alleged harm caused only to the children of the decedent were harmed and "had to commence litigation" to redress the harm (omitting that the decedent participated in causing harm and that there is no such cause of action in interference with prospective right of inheritance):

As to "title passed", I will need a separate blog post (to follow) to explain that the record of the Mokay action is completely devoid of any shred, scintilla or speck of evidence that the deeds were delivered - and thus title did not pass, no matter what a CROWD of judges may say.

But, for purposes of this blog post - Judge Dowd's attention to detail are below the kindergarten level.

He simply does not follow the evidence or even the list of parties and the timelines in front of him.
Judge Dowd notes that "children of the decedent" "had to commence this action" (which was not true, since the deed was never delivered and the title did not pass, a mere declaration of the surrogate in a case where decedent's children were not represented and incurred no legal fees, was enough that the title is still in the Estate, eliminating the need for the 8-year Mokay litigation).

Yet, somehow the Estate can claim damages for the same period of time alongside with the decedent's children - why, for what reason, nobody knows, and the judge definitely does not care.

So, not only Richard Harlem claimed - and got awarded - attorneys' fees for the same period of time from two separate courts, which definitely constitutes unjust enrichment, but he claimed it on behalf of a party who was not represented by Richard Harlem in the Mokay action for the period claimed - and that is fraud, successful, on two courts.

Moreover, Carl Becker, after he knowingly condoned that fraud and awarded over $48,000 to Richard Harlem without any verifying documents requried by the Surrogate's Court rules, assigned himself to the Mokay action in the Supreme Court and shot down any challenges to his fraudulent ruling.

Now, Judge Dowd joined the pitch and covered up the out-running Carl Becker by, once again, awarding Richard Harlem the same legal fees, awarding them on behalf of a party, the Estate who did not participate in the action at the time the fees were allegedly generated - and Judge Dowd had the audacity and disregard to the law to treble those fees.

So, now Richard Harlem was awarded not treble, but quadruple attorney fees on behalf of Estate for the period when Estate was not even a party in litigation - and that is a true record of judicial misconduct for both Judge Becker and Judge Dowd, acting, no doubt, in concert.

The trial rule of both of these judges - what is in the record does not matter.

Timelines making certain claims of damages impossible, do not matter.

Timelines and lists of parties making certain claims fraudulent do not matter.

What matters is to please a politically connected attorney and to hurt those pesky attorneys and parties, the "disgusting human beings", the "very dangerous persons" (Judge Dowd's words, on record, to another litigant who dared to file a motion to recuse against Judge Dowd - and where Judge Dowd did in fact recuse).

One does not need a high school, college or law school education to be able to discern that a legal fee generated by 5 parties cannot be claimed as damages by the later-joined 6th party in litigation - unless the 5 parties SUE the 6th party and claim those legal fees against that party.

Yet, all 6 parties are peacefully represented by one son of a judge Richard Harlem and his law firm Harlem & Jervis.

Apparently, Judge Dowd simply does not care, what the timelines of the case are, what the lists and numbers and names of parties represented by influential attorneys are, whether certain damages could or could not be claimed by the Estate, whether those damages could or could not be trebled, and whether those same attorney fees were or were not already awarded and paid to these same attorneys, on behalf of that same party.

For Judge Dowd, the law is his word - however freakish, fraudulent or absurd it appears.

I do not expect anything less from a judge who was ranting about a urinal built in his honor at a child custody/visitation proceedings, as Judge Dowd did. 

Yet, litigants and attorneys appearing in the Supreme Court, are entitled to deal with the law and with judges who have elementary competence and integrity.  Judge Dowd, judging by his decisions, have no competence or integrity whatsoever, and that is a big problem, which New York State Court Administration needs to deal with.

And, if a 1st grader would have done a better job in calculating the number of parties in the action for purposes of award of damages and for making timelines - and verifying which parties were ACTUALLY PARTIES IN LITIGATION for a certain perdiod of time, before awarding to them as damages, attorneys fees FOR OTHER PARTIES over that period of time - maybe, we need to put a 1st grader instead of Judge Dowd on that bench?

Will look cute, and will make much more sense.

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