"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.

Friday, June 5, 2015

Trial rules of Judge Philip Rumsey. Will attorney Dolores Fogarty and Judge Philip Rumsey be disciplined for their egregious misconduct against a pro se party in litigation?

It was reported to me that Judge Philip Rumsey, of Cortland County Supreme Court (and any court Judge Rumsey is assigned to - the case described has been reported to me out of Chenango County) has the following novel rules in divorce proceedings that New York practitioners and party litigants may need to be aware of:

1) Judge Rumsey can schedule and conduct a trial where no trial note of issue has been filed or served by the party requesting the trial.   Dolores Fogarty, attorney for the Plaintiff, did not file a trial note of issue, but the trial on behalf of her client was still commenced by Judge Rumsey - without authority to do so;

2)  discovery in Judge Rumsey's court proceeds during the trial of divorce proceedings continue (even though New York law requires that the party filing the trial note of issue must state under oath that discovery has been completed at the time the trial note of issue is filed, and a trial MAY NOT commence without such a trial note of issue being filed and served);  Dolores Fogarty, filed (finally) the trial note of issue where she stated that discovery is complete - at the same time as she filed what is supposed to be a PRE-TRIAL motion to compel continuing discovery, and such a pre-trial motion to  compel MUST be, in accordance to court rules, preceded by several good faith efforts to ensure compliance with discovery, and evidence of such good faith efforts MUST be provided to the court - Ms. Fogarty did none of that;

3) Judge Rumsey allows some attorneys to replace Judge Rumsey in issuing judicial supboenas duces tecum for public records (which can be done as a matter of law only by a judge and only by motion on notice to all parties and to the custodian of the public records) - while continuing to claim that he is not biased in favor of such attorneys and their clients; see below the published copy of Ms. Fogarty's judicial subpoena duces tecum upon a public official signed by Ms. Fogarty alone - and, according to Mr. Shtrauch, endorsed by judge Rumsey;

4) Judge Rumsey denies interim relief (spousal maintenance, attorney fees, expert fees) to non-moneyed pro se indigent parties in divorce proceedings where the indigence of the non-moneyed party, as well as the lucrative employment of the moneyed party are obvious, and where expert valuation of assets is necessary, despite having ample proof of the parties' income through the multi-page notarized statements of net worth on file with the court.  Judge Rumsey did that to Mr. Shtrauch, even though New York statute requires to grant interim relief to non-monied spouses in divorce litigation as a matter of right.

5) Judge Rumsey allows oral motions for frivolous conduct by attorneys against pro se parties.  According to Mr. Shtrauch, Judge Rumsey allowed an oral motion for frivolous conduct against him made by Ms. Fogarty in court and gave him about 3 or 4 days to consider the "motion" - obviously, Mr. Shtrauch had to memorize Ms. Fogarty's "motion" to oppose it.  

6) Judge Rumsey decides motions and cross-motions "asynchronically" - motions by attorneys are granted immediately while Judge Rumsey do not have time to review and decide at the same time cross-motions by pro se parties claiming (well documented) attorney misconduct of opposing counsel.  Mr. Shtrauch indicated to me that Judge Rumsey granted Ms. Fogarty's motion to compel discovery during the trial, after Ms. Fogarty finally filed the note of issue stating in black and white that discovery was completed and even though Ms. Fogarty made no efforts to provide proof of her good faith efforts to ensure compliance with discovery - which means, if any non-compliance took place, Ms. Fogarty waived it and proceeded to trial.

7) Judge Rumsey never recuses himself as a point of principle when the previous judge recused on a motion from a party, no matter how warranted that recusal is.  According to Mr. Shtrauch, Judge Rumsey stated to him in court that he will not be "forced" out of the case the way Mr. Shtrauch "forced" Judge Dowd out of the case.

In fact, Judge Dowd voluntarily recused from the case after Mr. Shtrauch's motion pointing out that Judge Dowd's law clerk was communicating with his children without his knowledge or consent, without knowledge or consent of the attorney for the child and outside of any court settings.

8) Judge Rumsey considers as "factors" in divorce litigation evidence submitted in previously dismissed cases - if such evidence is against the party who asked for the judge's recusal.  According to Mr. Shtrauch, Judge Rumsey first was confused as to who Mr. Shtrauch was - a Plaintiff or a Defendant in litigation, because, event though Judge Rumsey was handling a trial where Mr. Shtrauch's spouse was the plaintiff and Mr. Shtrauch was the defendant, Judge Rumsey at the same time ruled (initially) that the previous discontinued divorce proceeding, where Mr. Shtrauch was the Plaintiff and Rebecca Shtrauch was the Defendant, were not discontinued correctly.

Judge Rumsey then ruled that the valuation of marital assets stopped accruing at the time the previous ("improperly" discontinued) divorce action started, and not when the present action started.

In the previous action, Rebecca Shtrauch did not file a counterclaim, and in the present action she is the Plaintiff and Mr. Shtrauch did file a counterclaim.

The discontinuance of the previous divorce action was recognized by the previously presiding judge Dowd - which did not deter Judge Rumsey from his ruling that, even though he is handling a trial for Rebecca Shtrauch as a plaintiff, he is considering that the previous case is still pending where Rebecca Shtrauch is a defendant - indicating that it is then Mr. Shtrauch who has a right during the trial to proceed first with his case, even though Judge Rumsey allowed Dolores Fogarty to proceed first.

When a motion to recuse Judge Rumsey and to dismiss the current action because, if the previous one is still legal, the current one may not be legal, Judge Rumsey relented and issued an order saying that, yes, the previous action was discontinued properly, but he will still consider orders issued in that discontinued and dismissed action as factors in litigation - for which, in my legal opinion, Judge Rumsey had no authority.

This case has been reported to me by Mr. Shtrauch, the victim of judicial misconduct and apparent misconduct by the attorney for the opposing counsel, Dolores Fogarty.  Mr. Shtrauch gave me full permission to write about misconduct of Judge Rumsey and attorney Fogarty in court and to publish documents he provided to me.

Here is the latest shenanigan of Ms. Fogarty against a pro se party - a subpoena duces tecum for public records which the law requires to be a JUDICIAL subpoena duces tecum - that is, such a subpoena may only be obtained this way, according to New York state law - Civil Practice Law and Rules 2307:

  1. A written motion consisting of a proper notice of motion (or a signed Order to Show Cause) and of the supporting affidavit and other evidence upon which the records are sought, should be served upon all opposing parties and the custodian of the record (in this case, the court clerk);
  2. That same motion must be filed with the court.
  3. Service of the motion for a subpoena duces tecum on a public entity is set by statute.  A private attorney has no authority to sign such subpoenas, it is clear abuse of subpoena power and attorney misconduct.
  4. All motions contesting such a subpoena, such as a motion to be served and for a protective order, have to be filed with the court and served upon the opposing party.
NONE of that happened.

Dolores Fogarty (an attorney representing a party who was so familiar with the previous judge's law clerk that her children were playing in the law clerk's house) simply substituted herself in place of the presiding judge and SIGNED what was mandated by law to be a JUDICIAL subpoena duces tecum.

Once again, attorney Fogarty is attempting to subpoena records of a public entity - here, the Public Defender's office, through a subpoena that could only be obtained, if New York state law was to be followed, through a motion for a subpoena duces tecum.

According to Mr. Shtrauch, Mr. Shtrauch's subpoenaed counsel from the previous stage of litigation (the custody stage, that concluded by that time), Mr. Zachary Wentworth, is a Facebook friend of the previous (recused) judge's law clerk.

Mr. Wentworth did file a motion to quash Ms. Fogarty's illegal subpoena duces tecum, but did not indicate the most important ground, that Ms. Fogarty did not have authority to issue such a subpoena in the first place.

Here is  Mr. Wentworth's unsigned motion to quash that he gave Mr. Shtrauch at the time he already appeared in court, where Mr. Shtrauch had absolutely no time to address the "motion", not to mention that service of unsigned papers does not constitute valid service of a motion in the first place.

What Mr. Wentworth did say though was that in Chenango County Public Defender's office the routine is such that the court somehow allow the Public Defender's office to conduct an "eligibility interview" of people applying for an assigned counsel.

The interesting part is that the Public Defender in Chenango County is the brother-in-law of the previously recused Judge Dowd, which raises all kinds of issues pertaining to the appearance of impropriety of such an arrangement in this particular set of circumstances.

Mr. Wentworth neglected to serve his motion to quash on Mr. Shtrauch.

So, two written motions had to be served on Mr. Shtrauch, a pro se indigent party, a non-native speaker of English, and he had to be given an opportunity to respond to those motions.

Instead, he was served with exactly NONE of those motions.

He first learnt that any motion was filed by Mr. Wentworth when he came to trial and saw Mr. Wentworth there - while Mr. Wentworth's art in litigation was long concluded.

Mr Rumsey considered arguments of parties right then and there - despite the fact that no motions for a subpoena duces tecum were made and despite the fact that Ms. Fogarty clearly committed misconduct in usurping the judge's role in issuing such a supboena herself - and - guess what - granted Ms. Fogarty's right to proceed with her illegal subpoena duces tecum.


It is, all around - one big mess, and it looks to me that the reason why it is such a big mess is that Mr. Shtrauch is a foreign national (national of the state of Israel), his wife is a local, the wife and mother is close to Judge Dowd's law clerk's family to the point of having the children playing in the law clerk's home - without disclosure of these disqualifying events to the father, and the father dared to protest against that.

You cannot discriminate against a person more than Mr. Shtrauch was discriminated against.

He is pro se.
He is indigent.
English is not his Native language.

Not the judge, not the opposing counsel are taking any notice of all of that and, to me, proceed as if the law simply does not exist.

He is prevented from hiring an attorney because the court refused to give him interim relief that he is entitled to.

He is prevented from hiring experts he needs to evaluate the increase of earning capacity of his spouse who, according to Mr. Shtrauch, earned a college degree during the marriage, because he is denied interim relief.

Mr. Shtrauch, according to his statements to me, was laid off from his job and prevented from acquiring new job skills or looking for a new job by the order of the previous judge, Judge Dowd who - at the same time - required Mr. Shtrauch to watch the children for his wife from morning till night as a free daycare service - and pay child support in the amount that was many times more than the $25.00 per month that Judge Dowd could award, as a matter of law, against a parent whose income is, as Mr. Shtrauch's is, below the self-support reserve (135% of the federal poverty level).

Mr. Shtrauch is not given notices of motions.

The court allows the counseled plaintiff (who is apparently close to the previous recused judge's law clerk) to proceed to:

  • proceed to a trial without filing or serving a trial note of issue;
  • file the note of issue in the middle of the trial and not strike the testimony that was accepted by the court before such trial note of issue was filed;
  • compel discovery while continuing the trial;
  • allow Ms. Fogarty to act as if she is a judge, issuing judicial subpoenas duces tecum upon a public entity;
  • allow Ms. Fogarty to make oral motions for frivolous conduct, which motions can only be done in writing and on notice to parties, with strict service requirements;
  • review and grant Ms. Fogarty's motions that are not warranted by law or facts - to compel discovery during trial, without indicating that she made good faith efforts to ensure compliance with discovery (I've seen Ms. Fogarty's motion) while at the same time stating that the judge did not have time to even review Mr. Shtrauch's cross-motion - and then deny the cross-motion in its entirety in perfunctory manner, some time later.

I've never seen a divorce proceeding that would be such a mess.

The judge is obviously biased and should have stepped off the case long time ago.

Ms. Fogarty should have been disqualified off the case and sanctioned because of her continuing misconduct long time ago, yet, she continues to receive favors from judge Rumsey that are not warranted by law.

Is the judge bending over backwards to Ms. Fogarty - who is representing a private party - also because she is a public official, an assistant Public Defender for Otsego County?

I do have a question to the New York State Comptroller though as to the private practice of Ms. Fogarty - how is it possible that she can have assigned cases in counties other than Otesgo (and a lot of them), have a very busy private practice - at the very same time as she is a full-time employee of the Otsego County?

Of course, with county attorney Ellen Coccoma (same Otsego County) representing private clients during her taxpayer-paid time while being a full-time Otsego County employee, I guess, anything is possible.

My question is though - will any of the disciplinary authorities that must handle investigations of misconduct of judges and attorneyswake up and do their duties to protect Mr. Shtrauch from this ongoing misconduct?

Will NYS Comptroller investigate private practice of full-time employees in Otsego and Delaware Counties and nepotism in these counties and in the Chenango County eliminating the situations where the office of the recused judge's brother in law is reviewing eligibility of a party who asked for the recusal and is representing him in a way that may raise questions of the public defender's loyalty to his client?

No comments:

Post a Comment