Is the "right" of the government to hire dumb brutes for the police force, affirmed as a matter of constitutional law in the 2nd Circuit 15 years ago, responsible for the widespread wave of police brutality across the country?

I've recently blogged about the little scheme in Delaware County where prosecutors, police and probation officers are paid out of conviction fines through a "STOP DWI" program.

As much as it was pounded to the public as "savings" for taxpayers, it is a blatant constitutional violation that is geared to increase numbers of convictions without any regard to their legitimacy or constitutionality.

I've also blogged about incompetence and corruption in the Delaware County Sheriff's Department where police officer Derek Bowie who has been engaged in a vehicular assault upon a resident, a middle-aged disabled woman, and did that clearly in retaliation for her stance against misconduct in the government on the County level and in local courts.

I questioned more than once how can a police officer, or other public officials involved, be so DUMB as to not realize that their corruptness is quite transparent through their actions?

Well, I now found the root of the question.

Not only police officers in Delaware County are corrupt, incompetent and dumb, but the federal constitutional law in that jurisdiction allows the local government to sieve out smart applicants for police officer positions as a matter of intentional discrimination.

The U.S. Court of Appeals for the 2nd Circuit, 15 years ago (!), found that discrimination against applicants for the police force with a high IQ level.

Here is that brain-dead decision, in full glory.

Now, this is a galore for criminal defense attorneys... This "law" gives defense attorneys legitimate grounds to seek IQ scores of police officers in application for the position.  And, if that is not a discrimination against an applicant, that is clearly a constitutional issue for members of the public who are stopped, investigated, prosecuted and put in jail by police officers picked out BECAUSE THEY ARE DUMB!

Wow.

Names of the "winner" judges of the 2nd Circuit who produced this masterpiece back in 2000 are:

• The Hon. Jon O. Newman - still on the court and was even chief judge of the 2nd Circuit court from 1993 to 1997.  Judge Newman got his bachelor's degree in 1953, which puts his age at 69 at the time of his "IQ discrimination is constitutional" decision in 2000, and at 84 years of age now.
• The Hon. Rosemary S. Pooler, Circuit Judges - is still on the court, in an active status.  Judge Pooler recevied her bachelor's degree in 1959.  That puts her at about 63 years of age when she made the decision in the "IQ case", 15 years ago, and 78 years old now.
• The Hon. Lloyd D. George,* District Judge - is still on the Nevada District Court.  Since judge George reportedly received his bachelor's degree in 1955, and bachelors degrees are received usually at the age of 22, his date of birth is approximately 1933, 67 years of age or more at the time he made the "IQ case" decision, and at 83 years of age now.

* Honorable Lloyd D. George of the United States District Court for the District of Nevada, sitting by designation.

The "trio" above affirmed, in a summary unpublished opinion, the decision of the Hon. Peter C. Dorsey, Senior United States District Judge - who died in 2012 at the age of 80.

Think about it!

All of these seniors making all of these CLEARLY DUMB decisions - while proclaiming the government's right to discriminate against the intelligent people in matters of employment!

How many lawyers argued, with a straight face, that intentionally putting in a ceiling blocking intelligent individuals from being employed on the police force is constitutional and is not violation of equal protection rights!

4 (four!) judges agreed!

Agreed that the government has a "state interest" to intentionally "dumb down" police force that is armed and is supposed to be able to make split-second judgment calls about life or death of citizens, your life or death.

After this decision, why NOT expect police brutality after that? 

Why NOT expect dumb actions of police, like chasing shoplifters at ungodly speeds, that take away lives of innocent bystanders (2,400 innocent bystanders were reportedly killed in the US in a 35-year span as a result of high-speed police chases alone)?

Why NOT expect police to use their weapons, their TASERS, their vehicles, as tools of abuse of those they simply do not like?

Don't you think that this decision, and decisions like that may be responsible for the wide spread and ever spreading police brutality - because employing dumb brutes on the police force is the POLICY of the government?  And NOT employing intelligent people is also the POLICY of the government - to prevent job turnover!

I think the same test is actually applied to judgeships and attorney jobs for the government.  

I remember how a retired judge from the Appellate Division 3rd Department (he is a local of Walton, NY, an ardent supporter of Carl Becker), Judge Carl Mugglin, told me, without having any record in front of him, and without having any basis to "rule" at an appellate settlement conference - "you will dig a hole for your clients, Mrs. Neroni, with your intellectual efforts".

I was stunned, my female client was stunned, but obviously, with all my legal education, I did not know about the case, it was not taught in our Civil Rights litigation class in law school, my law school professors did not impress on me that being smart may prevent you from getting a job in the government!

The last question - if judges would apply their own "discrimination on the IQ basis is constitutional" test to themselves, would they have passed the test?  

I bet they would.

The NYS Court Administration adamantly refuses to answer my question pertaining to waivers of filing fees in O'Sullivan v Bowie

I blogged recently about fee waivers provided by courts to people who are in no way adjudicated as poor persons, who are sued in their individual capacity, not as officials of governmental entities and where the only reason for waivers appears to be bias of the court and favors given to litigants associated with the government or litigants whose opponents are critics of judicial misconduct.

I filed a FOIL request today with the New York State Court Administration seeking information about:

(1) policies as to fee waivers, and
(2) records pertaining to all fees paid or waived in the case of Barbara O'Sullivan v Derek Bowie (a police officer), in his individual capacity, for vehicular assault and battery, Delaware County Index No. 2014-911.

Here is my entire exchange with the NYS Court Administration pertaining to that FOIL request:

Let's note that NYS Court Administration claims that:

1) I am not seeking records subject to FOIL, because records I am seeking are allegedly "judicial records";
2) that I am asking NYS Court Administration, under the guise of FOIL, to conduct legal research which NYS Court Administration does not have to do for me; and
3) that denial of my FOIL request is not even appealable.

First of all, administering fees for the handling of a case is not strictly a judicial duty, and thus, any records pertaining to such fees are not judicial records taking such records from the reach of FOIL requirements.

Second, NYS Court Administration sends me to the do my own legal research and to consult the law and court rules on court websites.  

Well, I did, actually before I made the FOIL request.

As an attorney, I know the law.

As a diligent attorney, I double-checked the law and the rules before FOILing.

Here is the fee schedule of New York courts.

New York City Civil Court is even more specific than the general Unified New York Court system, it provides statutory authority for every filing fee it requires litigants to pay.

Here is the official explanation by the court system as to which cases require the Request for Judicial Intervention fee of $95 and which cases do not require such a fee.

Barbara O'Sullivan v Derek Bowie's case definitely required payment of an RJI fee.  I was advised that such a fee was waived to Derek Bowie by Delaware County Clerk's office - and, as a taxpayer, attorney and litigant, I want to know  - on what legal grounds was the waiver given?

Here is the statutory authority for filing fees in New York State Supreme Court:

• a court order adjudicating a litigant as a poor person, CPLR 1101.  
• waivers to public entities (the government) or public officials sued in their official capacity - I did not find authority for that, but do not deny a possibility that such a basis exists, on the rationale that when a public entity defends in a lawsuit, it spends taxpayer money, and thus fee waiver would be appropriate.

Here is the Unified Court System's rule/policy pertaining to fee waivers for poor persons (only that ground).

The Mokay plaintiffs who were given a waiver by Judge Kevin Dowd of a trial note of issue fee, were not adjudicated as poor persons, nor did they apply for such a fee waiver on that ground, or at all.

Derek Bowie, in O'Sullivan v. Bowie, did not apply for a fee waiver either, is not an indigent person, being a police officer on the payrol of Delaware County Sheriff's Department, and was sued in his individual capacity for misconduct, which does not trigger any waivers meant for the government.

That was the reason for my question - if all laws, rules and policies were not followed in these cases, what are the real policies for fee waivers in New York?

The New York State Court Administration answered me that it does not owe me - or any other litigant, citizen and taxpayer of the State of New York - an answer to that question.

Yet, since every paying (or non-payment and waiver where payment must be made) is followed by a paper trail, I have made yet another FOIL request, now to the Delaware County Treasurer, for copies of records pertaining to filing fees put into the court account.

I have also FOILed the New York State Comptroller for the filing fees collected from the case Barbara O'Sullivan v Derek Bowie.  

I will hold my breath for the answers.

The government clearly does not like being caught red-handed in misconduct, specifically, in favoritism in favor of a police officer, even if he is sued for vehicular assault by his victim, and in retaliation against the critic of judicial misconduct, even in such petty issues such as charging her, but not the perpetrator of a vehicular assault against her, filing fees in civil litigation.

When a court system brazenly gives gifts of fee waivers to governmental officials, sued in their individual capacities for committing egregious misconduct against citizens - that demonstrates more than anything else that courts in New York are not neutral, unbiased and fair, as they are supposed to be, and are not governed by the rule of law, as they are supposed to be.

And that's why, when you can, as a voter, exclude from the bench people who you know will only contribute to the ongoing misconduct in the court system, it is absolutely necessary to do that.

Because that's your only chance to improve the judicial system - apart from the lengthy and mostly unsuccessful process of petitioning the intentionally deaf and blind government.

Let's FOIL the NYS Court Administration for its policies regarding waivers of filing fees

By law, Delaware County Clerk is the court clerk accepting filings for the Delaware County and Supreme Courts.

By law, filings for assigning a judge (RJI number) and filing a motion require, respectively, a $95.00 and a $45.00 filing fee.

No judge will be assigned unless you pay $95.00 with the RJI (Request For Judicial Intervention).

The Delaware County Clerk will not accept from you a notice of motion unless you pay a filing fee of $45.

That is, not unless you are an employee of Delaware County sued in his individual capacity in a civil action for misconduct.

Filing fees in court may be waived only to government entities.

Yet, in Delaware County there were two incidents when filing fees were waived to private parties.

First, Judge Kevin Dowd waived a note of issue fee to son-of-a-judge attorney Richard Harlem in the case Mokay v. Mokay (against my husband who sued Judge Dowd).

There is no basis in the law for such a waiver, but that's what Judge Dowd did anyway.

Second, Delaware County Clerk's office, with or without permission from Judge John Lambert, upon information and belief, waived all fees (RJI and motion fees) to police officer Derek Bowie sued in his individual capacity for intentional misconduct, vehicular assault and battery, Delaware County Index No. 2014-911, O'Sullivan v Bowie.

Derek Bowie is represented by attorney Frank Miller, an attorney who some time ago conducted "hearings" for Delaware County regarding misconduct of yet another police officer, without disclosing to the public that he is not acting as a neutral investigator (as most of the people who came to testify in front of him or talk to him thought), but an attorney hired by Delaware County's insurance company to protect the County from liability.

When I pointed that out to Mr. Miller, he tried to intimidate me not to go any further with raising the issues of his conflicts of interest, because Mr. Miller was concerned for his allegedly perfect "Martindale" score.

Mr. Miller's office seems very familiar with the local courts, to the point of obtaining waivers that their client, police officer sued in his individual capacity, was not entitled to.

To me, improper waiver of a filing fee by the County Clerk to the County employee sued for misconduct in individual capacity is nothing less than an improper gift showing corruption of the court personnel and bias against the police officer's opponent requiring the change of venue and disqualification of the judge, if he ok'd such a "waiver" - not to mention a misconduct investigation against all participants in such a "waiver" that gives the public the appearance that courts' favors in New York can be bought.

In both cases the recipients of the benefits are favored attorneys and in both cases the opponents of the favored recipients of the benefits (fee waivers) are critics of judicial misconduct.

It is a pattern, isn't it?

For that reason, and to clear up the issue - which litigants are and which litigants are not entitled to fee waivers in New York courts in civil actions - I encourage the public to file Freedom of Information requests with the NYS Court Administration to ask the administration to provide, within 5 business days, as required by law:

1) records of financial documents documenting payments of filing fees in O'Sullivan v Bowie, Delaware County Index No. 2014-911;

2) policies of the NYS Court Administration regarding waivers of filing fees, and eligibility for such waivers.

At least, NYS Court Administration should then scratch its collective head to answer the question.

Let's hold our collective breaths to see what they have to say.

Ascension to the bench through intimidation? Turf wars in Delaware County continue...

I recently blogged about the turf wars in Delaware County, and also about the perverse financial incentives that the Delaware County put in place for its prosecutors, police and probation officers - with the blessing of the two attorneys, public officials, who are currently running for judicial positions, one in replacement of the outgoing (better say "outrunning") Judge Becker, and another - to fill the new position that the Delaware County begged and received from New York State, even though judicial caseload in Delaware County, upon my information, goes down, not up.

I also blogged about the incidents of intimidation where my friends and their families started to get approached by certain individuals with certain hints and threats to drop lawsuits against a Delaware County policeman, stop blogging "with Tatiana Neroni", whatever that means, OR ELSE.

I have been advised that the intimidation is getting worse, and now, as I understand, whoever is trying to unleash this intimidation campaign is completely losing it and is urging police officers in Delaware County not to do business with my clients, my friends and my friends' and my clients' family members, even though there are not many alternatives to such "doing business" and even though police officers were "doing business" with the businesses in question not for years, but for decades.

I understand that there are more bears than people in Delaware County and that every vote counts.

I understand that people in Delaware County are, on the one hand, usually apathetic to vote, but, on the other hand, during last elections voters showed an interestingly high support for the judicial candidate Gary Rosa, in fact, so high, that at first Gary Rosa was declared a winner of the 2012 judicial elections - before Judge Becker-dominated Election Board recounted the ballots and "eked out a victory".

I understand that Delaware County provides a lot of jobs, and a lot of jobs to relatives and even clans, and that it is easy to pressure a Delaware County employee to "volunteer" for a campaign of a certain judicial candidate or to vote the way the particular judicial candidate with ties to or high-ranking position in Delaware County would want.

But, when a judicial candidate, or individuals acting on his behalf, are so desperate to put that judicial candidate on the bench that they start to getting sloppy, to advertise shady deals as "savings to taxpayers" while in reality they demonstrate that they do not give a rat's ass as to the well-being of the taxpayers or saving their money, it is becoming just a little bit too obvious to the various intimidation incidents as a mere coincidence.

When police officers are encouraged not to purchase certain items and services from Delhi businesses where they were purchasing such items and services for - not years - decades, and when the alternative is to go miles out of Delhi and cost taxpayers additional money, that is not savings, that is putting the paw of the abusers of their governmental position directly in taxpayers' pocket and making taxpayers pay for the fight for the bench and for intimidation campaign against critics of governmental misconduct.

If that is happening before Kirkwood and Northrup saddled those benches, think what will happen after.

The campaign of intimidation unleashed against my friends, clients and family members of friends and clients that happened right after I criticized the two judicial candidates in my blog, with documentary evidence of their misconduct, happened too close in time not to have at least an appearance of a causal relationship.

Moreover, the old rule "who benefits" point to the judicial candidates and Delaware County officials, including the one sued for a vehicular manslaughter and his uncle who works for the DA's office that prosecutes the victim of that assault instead of the perpetrator.

You will not get justice if County Attorney Kirkwood and District Attorney Northrup become judges.

You will simply get more corruption than you have now, and now you have too much already.

Vote against Kirkwood and Northrup.

Address the "eligibility committees" to revoke their eligibility status as judges.

Their ascension to the bench will be a continuing disaster for Delaware County.

Tomorrow will be the last day on the bench for Carl Becker. People of Delaware County, New York, let's celebrate.

Tomorrow Delaware County will or should celebrate the last day on the bench of Judge Carl Becker, the judge well known for the following:

1) coming to the bench in 2012 by defrauding the voters and demeaning his opponent and, as far as I know, even by buying food for voters in the hope that that will encourage the "correct" vote; I always doubted validity of the "recount vote" that put Becker on the bench instead of his opponent Rosa, when I saw with my own eyes how young black voters were misdirected at the polls to go to the Board of Elections in Delhi for ballots while such ballots had to be available at the booths.  

The other reason to doubt validity of the vote was loyalty of the Delaware County Board of Elections to Becker to the point that the Board of Elections officials filed with the Delaware County Clerk a false certification of Becker's 2002 elections when I raised the issue that Becker is not a legitimately elected judge in a motion in 2011 (Becker presided over reviewing the motion, without authority since the motion concerned his own legitimacy as a judge, caused the Board of Elections to file the false certification of his 2002 elections and then sanctioned me for bringing it in one case and agreed that it is non-frivolous in another case - without changing his previous decision that it was frivolous).  

Why the certification filed in 2011 of Becker's elections in 2002 was false, at least in my legal opinion? 

Because, according to the answer of the Delaware County Board of Elections to my FOIL request pertaining to documents from Becker's elections, all original documents, including petitions and ballots, from the 2002 elections were destroyed within 2 years of the elections, in 2004.  It is unlawful to certify anything without underlying original documents.  

Yet, the Delaware County Board of Elections did that for Becker who represented the County for 27 years and kept close ties, to the point of ex parte communications with County officials during litigation, for the duration of his stay on the bench.

2) habitually concealing his disqualifying conflicts of interest derived from his previous work for 27 years as an attorney for the Delaware County Department of Social Services;

3) habitually putting the interests of Delaware County, its public officials and employees, the judge's friends, above the law;

4) habitually engaging in vindictive conduct against litigants, their family members and their attorneys if they raised issues of misconduct of Delaware County public officials or employees, including Judge Becker himself;

5) habitually engaging in ex parte communications pertaining to court proceedings with social services, police, school officials and favored attorneys and suppressing such evidence by retaliation against challengers;

6) being habitually rude to the "chosen" litigants and counsel, especially women;

7) being habitually and adamantly incompetent and advancing his own incompetence as the law of Delaware County;

8) using his official position for personal gain or advantage - before and after he came to the bench.

That's quite a legacy.

Tomorrow, on his last day of self-service and service to his buddies that lasted since 2002 (a devil's dozen of years), good riddance and let's not put Becker' equivalents - Kirkwood and Northrup - on the bench.

Voters, please, remember that once you put Kirkwood and Northrup on the bench, nobody will ever take them down, nobody will discipline them, the NYS Commission for Judicial Conduct will be tossing your complaints about their misconduct (if they are engaged in gross misconduct now, it will be "out of character" for them not to do that when they gain more power).

So, while you see Porter Kirkwood's bulky figure going around the streets of Delhi and smiling to residents to catch their eyeballs and support for the future elections - please, remember.  What represents Kirkwood and Northrup are their deeds.

And their deeds, as the recently announced "buy the prosecutor" deal when the new prosecutorial position is paid, with the blessing of both Northrup and Kirkwood, out of convictions, making prosecutors practically bought by the probation and the police (who are also, by the way, financed out of conviction fines, providing an incentive for the police to stop you, residents of Delaware County, unlawfully, and to collude with Northrup as a prosecutor to provide false statement to the court - to secure convictions and funds for the prosecutor).

And these ugly deeds, ladies and gentlemen, cannot be covered by any smiley faces.

Priorities of the State of Georgia: less legal literacy for the poor, less literacy for the young poor troublemakers

I've just posted a blog about priorities of the State of Georgia to prosecute people promoting legal literacy rather than dealing with poverty issues in the State.

And, today there appeared more information on priorities of the State of Georgia in the choice - to educate or not to educate its population.

The answer is - not to educate, especially the young poor troublemakers, but to separate them, segregate them and commit them to squalid life conditions, substandard education and the life of poverty.

At that background, the continuing lawsuit against Mr. Malamud for trying to educate the poor litigants of the State of Georgia looks especially bad.  It spells out the policy of the State of Georgia - government created and enforced ignorance of the poor and social control.

Not democracy.

 

When taxpayers "own the law", why would the State of Georgia sue Carl Malamud for giving the owner access to the owner's own property?

The State of Georgia has filed a lawsuit against a civil rights organization run by a non-attorney Carl Malamud, who for many years has actively advocated for making laws known to the public and who has actually made many laws and regulations available for public access.

So why sue a person who is engaged in such a laudable activity that is so beneficial to the public?

The State of Georgia asserts that it contracted the legal research and legal publications giant LexisNexis to make annotations for State of Georgia's official statutes.

The State of Georgia, in a twisted logic (in my opinion), claimed to the federal court that Mr. Malamud, in making the annotations that belong to the State of Georgia through its contract with LexisNexis (and thus belong to the people of the State of Georgia) infringed upon State of Georgia's "copyright" in those annotations by - guess what - making those annotations to the official states available to - gasp! - the people of the State of Georgia.

Of course, by publishing such annotations on the Internet, Mr. Malamud's organization has made those annotations available to a wider readership than just to the people of the State of Georgia, the true owners of the annotations, but if certain documents are in the public domain of a certain state, by law they are in the public domain, period - even if an alien spy organization wants to read the annotated official code of the State of Georgia for their own evil purposes.

The officials of the State of Georgia who filed the lawsuit (and their attorneys) obviously have the "chicken and egg" problem.  They somehow assert that while the State of Georgia contracted annotations, and thus owns a "copyright"  to those annotations to its own official statutes, then the People of the State of Georgia cannot have free access to those annotations - acquired by their representatives at the expenses of their taxes.

And, by the same twisted logic, a person or organization who provides access to annotations to official law paid for by the state officials with taxpayers' money, is infringing upon the copyright of the State in those annotations.

There is also a clear standing problem - if the State of Georgia gave exclusive rights to sell the "annotated code" to LexisNexis (and the question is - why, on what legal grounds was that exclusive rights given), it is LexisNexis that need to be suing to enforce its exclusive contractual rights.

I am not the only attorney who raises the standing issue.  I encourage my readers to read the excellent blog by attorney Max Kennerly with a thorough analysis of concerning issues in the lawsuit.

Attorney Kennerly does ask the question as to why it is the State of Georgia who is suing, even though it is the LexisNexis' contractual rights which are allegedly violated.

The answer may be - LexisNexis, because it created the annotation by contract with a public entity, does not have copyright in that material and cannot sue for copyright infringement.

But, on the other hand, the public entity has no basis for a lawsuit (in my legal opinion) for copyright infringement based on the fact that somebody gave access to the People of the State of Georgia to annotations to official law that was procured by People of the State of Georgia (through its government, its legal representatives), with public money, because such annotations belong to the People of the State of Georgia, and giving access to the owner to his own property is not copyright infringement.

I hope that the federal court will toss this case.  

It deserves its place in the waste basket.

And I hope that people of the State of Georgia demand to fire everybody who was involved in filing and prosecution of that case and wasting taxpayer's money.

There are many unmet needs in the State of Georgia where the money spent on this nonsensical litigation could be used and actually help people such as, just as one point out of many, childhood poverty of 27%.

I guess, pursuing Mr. Malamud's organization for making public to the People of the State of Georgia information about the law belonging to the People of the State of Georgia that People of the State of Georgia are presumed to know for purposes of civil or criminal liability was a higher priority for the State of Georgia in terms of use of resources so limited that the hourly wage in the State of Georgia remains $5.15, percentage of families that work but are still low income is 36.6%, poverty rate in the state is 19% (every 5th resident of the State of Georgia is poor!), extreme poverty level is the staggering 8.8% (nearly 1 in 10 people are extremely poor!), 40% of single parent families with children are poor...

Mr. Malamud's organization and its efforts to HELP the poor people who obviously cannot afford an attorney, but whose tax dollars are used against them by the government, to at least know the law that is used against them is a bigger problem for the government of the State of Georgia than all the above.

Which makes even more laudable Mr. Malamud's efforts to make laws accessible to the poor people who own those laws, despite lawsuits against him by the establishment to prosecute him for those honorable efforts.

I must add that nobody need free online access to the annotated official statutes of the State of Georgia more than the poor people in the State of Georgia, those who cannot afford to buy those same annotations from LexisNexis.

Nobody outside of the State of Georgia, save for scholars, really needs to know the statutes of the State of Georgia.

Attorneys practicing in the State of Georgia, know the statutes because they their legal training and because they use those statutes on a daily basis and paying for those annotations is their business expense usually passed to the clients.

So, the State of Georgia, by suing Carl Malamud's organization for providing public access to annotations to the official statutes of the State of Georgia, insist on keeping the poor people of the State of Georgia, in the dark about their own laws.

And such efforts are not laudable, honorable or even legitimate for a democratic state government.

The future of the legal profession was challenged in the lawsuit LegalZoom Inc., v North Carolina State Bar

In February of 2015 the U.S. Supreme Court has made a determination that the state of North Carolina (the State Board of Dental Examiners) violated the Anti-Trust law in aggressively (and self-servingly, because members of the State Board were active market participants with financial interests to oust competition - same as attorney members of attorney disciplinary committees throughout this blessed country are) trying to prevent non-dentists to perform  services that do not require medical knowledge, specifically, teeth whitening.

Since the members of the State Board of Dental Examiners who are market participants at the same time, were engaged in self-serving anti-trust activity and were not actively supervised by the state, the U.S. Supreme Court stripped them of immunity for their conduct, opening the door to lawsuits against them and members of state boards in similar position to the dentists, such as members of attorney disciplinary committees.

By the way, New York immediately reacted to the decision by creating a "Commission", composed of practically exclusively market participants (again) to see how to make attorney discipline "fairer", more uniform and effective.  

At this time that Commission is holding "lunch-time during vacation time"  "public" hearings with testimony "by invitation", on an extremely short notice to the public.

I recently blogged about those pro forma "hearings", about financial interests of individuals who handle those hearings in the outcome of the hearings, including the vested financial interests in preservation of the status quo of the "interested experts" who are members of the Commission.

What the Commission is trying to do in reality, though, is to prevent the inevitable - the deregulation of the legal profession, the profession that is, despite its self-proclaimed "honor" is stifling development of the law, is breeding corruption on all levels and in all branches of the government and is preventing effective and affordable representation in court for majority of Americans.

It is not accidental that bar associations from around the country aggressively, but unsuccessfully fought through "friend of the court" briefs to prevent the decision by the U.S. Supreme Court of February 2015 in the case North Carolina Board of Dental Examiners v. Federal Trade Commission.

I followed up in April of 2015 with a complaint to the Federal Trade Commission complaining that the entire way how New York State administers attorney discipline is in violation of anti-trust laws, both to attorneys where attorney members of disciplinary committees are selectively choosing to prosecute solo attorneys, independent attorneys, criminal defense and civil rights attorneys and critics of governmental misconduct, and that the public is blocked from affordable legal service because most of the disbarred and suspended attorneys are engaged in pro bono and low-cost representation.

I used the Dental Examiners case in my complaint, and I am sure I am not the only one who is or will be using this case against bar associations in the future.

For example, now the State of North Carolina is being sued for antitrust violations by LegalZoom, a well known provider of information packages about the law, the provider that was aggressively pursued by the bar associations around the country for providing to people cheaper information than what the lawyers' "advice".

I must note that bar associations were trying to prevent the flow of information from reaching the consumers at the time when - and it is consistent statistics around states in the United States - over 80% or more, or over 4/5 of litigants in the U.S., cannot afford an attorney, see also addresses of New York State Chief Judge year in and year out where the "justice gap" is mentioned.

Under these specific circumstances, to attempt to deprive them of a cheaper option to gain information about the law is, in my personal opinion, quite dishonorable, contrary to the self-anointing by the legal profession as an "honorable" profession.

The LegalZoom is quoting the case regarding the Dental Examiners in its federal complaint.  Moreover, the action against members of the state bar's disciplinary committee in their individual capacity, as noted on the caption of the lawsuit, has become possible because of decision of the U.S. Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission.

The essence of the federal complaint is that the North Carolina State bar is self-servingly suppressing competition in violation of federal antitrust laws.

The complaint of the LegalZoom notes that after the decision in February of 2015 by the U.S. Supreme Court, predicting their vulnerability to such a lawsuit, North Carolina lawyers appealed to the state legislature to impose "active supervision" upon the state's attorney disciplinary boards to obtain immunity from such lawsuits, but the legislation was not yet passed.

Here are portions of the LegalZoom's complaint against the North Carolina State bar on this issue:

Moreover, the "active supervision" requested was once again by an attorney - by the Attorney General, who is also a market participant since without a license he or she would not be able to maintain the position of the Attorney General, with its salary and benefits.

With due respect, supervision of attorneys by yet another attorney should not constitute active supervision by a neutral state body.

But what completely blew my mind was what exactly the North Carolina bar was barring (the pun is intended) in terms of the services provided by LegalZoom.

The North Carolina State bar was barring LegalZoom's from providing to consumers - guess what? - prepaid packages of legal services, which had to be necessarily provided by attorneys licensed in North Carolina!  

The outcome of this case in federal court may have a deep impact upon the entire legal profession and upon what constitutes "practice of law" and what can or cannot be regulated by the states in view of federal antitrust laws, even if the legal profession is regulated.

The "problem", I guess, was that the services provided by attorneys licensed in North Carolina, were cheaper than those that the "legal elite" represented by members of attorney disciplinary committees were providing, because such services were provided on a "subscription" basis through LegalZoom and at lower prices to the consumer, undermining the members' of the State Bar committee's own financial livelihood.

So, the LegalZoom case against North Carolina State Bar is actually much stronger than the case against Dental Examiners who claimed that non-dentists were to be regulated as dentists for provision of teeth whitening.

This is the case where the State Bar consisting of market players with vested financial interests (all attorneys sworn to protect the State and Federal Constitutions and the law, by the way) are violating federal law to advance their own financial interests by banning legal services that are more affordable than those that members of the State Bar Committees are happy with.  That is price regulation, pure and simple, among members of the legal profession, and that is exactly within the core of protection of antitrust laws.

That such actions are dishonorable is not even a legal question - it is plain for everybody to see.

Judging by the docket report of the case from Pacer.gov, defendants in LegalZoom, Inc. v. North Carolina State Bar et al, Case No. 1:15-cv-439 in the U.S. District Court for the Middle District Court of North Carolina were given until August 20, 2015 to answer the complaint of LegalZoom.

I will report on the developments in the case that affects everybody's right to effective and independent representation and access to information and affordable legal services.

Yet, the important thing that the LegalZoom's lawsuit did, whether it will or will not be won in court, is to put in front of a court of law the issue that private market players claim the power of the government to block access of competitors to the market and thus make badly needed legal services more scarse and less affordable, in the market that is already suffering from scarcity and lack of affordability of services.

The very same situation is happening across the country and in New York, and it is obvious that the band-aid of the new "Commission" consisting, again, of market participants with vested interest not to change anything essential in restrictions for provision of legal services in the State of New York and to continue to use regulation as a tool squashing competition by independent and honest attorneys.

That's why the LegalZoom case, if decided in LegalZoom's favor, can spell the doom for regulation of the entire legal profession, for the benefit of all Americans who are not trained enough to jump through riddles of lawyerspeak to represent themselves in court, do not have enough money for an attorney to do that and, if they have money for an attorney, the attorney is not truly independent to raise all issues in court because the attorney's own livelihood is in the hands of the people whose misconduct he may be duty-bound to challenge on behalf of a client.

Under the current scheme of regulation of the legal profession, litigants lose and true access to justice is nothing more than a fiction.

LegalZoom's lawsuit can help change that in the long run.

New York State Attorney General should pay attention to competence of his "assistants"

One more example that NYS Attorney General and his "assistant attorneys general" are wasting taxpayer money (including my money).

An "Assistant Attorney General" Kenneth Gellhaus, admitted to practice law in 1987 (28 years ago) has sent me a letter requiring me to "provide me with a physical location of your New York office in which you transact your legal business as a New York attorney".

How NYS AG can declare a default in a case where an Answer was filed in 2008 and representation was uninterrupted, nobody knows.

Mr. Gellhaus got so fired up because his office languished in prosecuting a case against my client for 7 (!) years - and I happened to remind him of that fact.  So, Mr. Gellhaus became all personal and demanded from me what no law allowed him to demand.

In his aggressive attack against me attempting to oust me from a case, Mr. Gellhaus relied upon NYS Judiciary Law 470 that requires "nonresident" attorneys to maintain a physical office in the State of New York, which was - guess what? - declared unconstitutional by a federal court 4 years ago, which declaration was not overruled (at least as yet) on appeal.

Judiciary Law 470 was amended by New York State Legislature on February 15, 2014, 2.5 years after the ruling in Schoenefeld v New York (above), and now it is as follows:

In an attempt to outsmart itself, the New York Legislature, noting that Ms. Schonefeld resided in an "adjoining state" (New Jersey), magnanimously allowed "nonresident" attorneys without an office to reside in "adjoining states" only.

It did not make much sense, because the appellant in the appeal from the decision in Shoenefeld v New York was not Ms. Shoenefeld, and mooting their own appeal for the State of New York was not the smartest thing to do, when such mooting does not cancel the determination of the U.S. District Court for the Northern District of New York in Ms. Shoenefeld's case, which was much broader than addressing discrimination of New York against "non-resident" attorneys only from "adjoining" states.

Yet, that is exactly what Mr. Gellhaus points out to me by stating that South Carolina where, he presumes from my P.O Box mailing address, I now exclusively reside (which is not true, because I have residences in New York state), is not "adjoining" the state of New York.

It is not.  But whether South Carolina where I reside IN ADDITION to residing in the State of New York, is adjoining the State of New York or not, is irrelevant to the decision in Schoenefeld v. New York:

Once again, the federal court in Schoenefeld v New York clearly indicated that it declares the statute unconstitutional not only towards Ms. Schonefeld (one attorney), but against "nonresident attorneyS" (plural, many attorneys), because of the statute's discrimination, in violation of Privileges and Immunities Clause.  Once again, the protected class here is "nonresident attorneyS", not "nonresident attorneys from adjoining states" only.  

So, New York's amendment of Judiciary Law 470 did not cure the constitutional defect that caused the statute to be stricken by the federal court.

Further, Mr. Gellhaus presumed that because I have a temporary mailing address outside of the State of New York, I am (1) a "nonresident" attorney and (2) am answerable to Mr. Gellhaus as to my physical address in New York "to transact my legal business", which, of course, is not true - as a matter of law - on both counts.

Under New York State law, no attorney has to disclose his or her residential address to litigants, opposing parties and their attorneys, and Mr. Gellhaus knows it very well.

Apparently, Mr. Gellhaus, very possibly, will be mighty frustrated if I happen to demand to know his residential address - in case I want to personally serve him with something, which was the presumed purpose of Judiciary Law 470 (declared unconstitutional 4 years ago by the U.S. District Court for the Northern District of New York in the case Schoenefeld v. New York, on 9/7/11).  Yet, he permits himself to demand such intrusive information from me. 

I've written in this blog time and again - when will our public servants LEARN TO READ?  Even the cases handled by their own office, such as Schoenefeld v. New York?

This is, alas, the competency level of our public servants in the State of New York...  And it is taxpayers' business to change that.  Soon.

Judicial candidate Porter Kirkwood shines as legal talent in the STOP-DWI "legal disclaimer"

I already wrote on this blog, with a link to a telephone recording, as to shenanigans of judicial candidate Porter Kirkwood, friend and colleague of Judge Carl Becker (who runs out of his office at the end of this July long before his term is up after fighting tooth and claw for being re-elected for that term).

I already wrote that Porter Kirkwood is the "best candidate" for Delaware County to replace Judge Becker since he is made of the same mold as Becker - incompetent, unprincipled and with a nasty temper smoothed out with smiles to and catering for necessary people, and about "hereditary" misconduct that will be continued by Kirkwood after Becker leaves office - if Kirkwood is elected in Becker's place.

I provided evidence (telephone recording) indicating that Porter Kirkwood is either lying that he does not know anything of the policies of the Delaware County Sheriff's department affecting people's constitutional rights, or he confesses to his incompetence in not knowing about such policies.

 Compare the recording of Delaware County's public official in charge of its jail explaining me about the alleged long-standing policies of searching attorney's files as a pre-requisite of visits of their clients, the direct link to the recording is here, (a made-up policy to prevent me from visiting my then client Barbara O'Sullivan in jail, to prevent any meaningful representation of her), and what Porter Kirkwood tells me that he does not know of any such policies, the same link.

Now for the new masterpiece that has to have Porter Kirkwood's hand all over it - a "legal disclaimer" on the website of Delaware County (supported by taxpayer's money).

First of all, the font of that "disclaimer" is black on dark blue background.  So, if you are not computer savvy, you will have to squint heavily to read what is there in the disclaimer.

If you are a little savvier, you will highlight the entire disclaimer, and then the font will become white.  That is what I did to make snippets of that disclaimer for this blog - and then the highlighting within the snippet somehow became black on gray, but still more readable than black on dark blue.

I do not think that the choice of font and background in the "legal disclaimer" is accidental.

I believe that the choice was intentional, so that, on the one hand, the disclaimer is there, and on the other hand, not many people would strain themselves to read it, and especially analyze it.

Here is the "legal disclaimer" for the STOP-DWI program of Delaware County, New York:

Now, "information contained herein" is information provided to the public on the public website supported by taxpayer's money.  As such, it constitutes a public record, and people who provide such information to the public must first check if it is correct.

Yet, Delaware County, while providing information to the public on a taxpayer-supported website, attempts to claim that it gives the public "no warranties, express or implied", as to the "accuracy or completeness" of information contained on the website about the STOP-DWI program.

In other words - read it, but do not believe a word, because what we say might not be true.

The next marvel is when the website directly addresses you and states that Delaware County will not be liable to you in any kind of damages if you dare to sue Delaware County for anything contained on its website.

Well, interestingly, it is not for Delaware County to make that determination, but for courts, and Porter Kirkwood, legal advisor for Delaware County, must know that before publishing this nonsense.

The very next marvel is that "you" (whoever you are) somehow "agree that the liability of accuracy or completeness of any information on the sites arising out of any kind of legal claim (whether in contract, tort or otherwise) in any way connected with the information therein shall not exceed the amount you paid to Delaware County, its departments or its agencies or its respective employees or agents for use of the service, if any."

Who it is that unknown "you" and what is the condition of the agreement - seeing the "legal disclaimer" on the Internet, I guess - and why, let's say, a civil rights lawsuit that may be brought against Delaware County based on its statements on its own website, should not "exceed", by agreement no less, whatever monies "you" paid to Delaware County "for use of the service, if any" - nobody knows.

And, of course, nobody knows what was the reason for inclusion into the "legal disclaimer" of the statement that all expenses of the Delaware County's STOP-DWI programs are funded by fees provided by individuals convicted for DWIs.

By the way, since Delaware County is not the most sought tourist destination, in fact, it looks like a ghost zone and its towns look like ghost towns, the only people passing through the county and stopped for alleged DWIs are its own residents, who are predominantly poor and poorly educated.

So, it is off those poor and poorly educated residents that STOP-DWI program, and the police, and the prosecutors, and the legal aid in Delaware County, are financed.  All off their backs.  All off your backs, Delaware County taxpayers.

And no "legal disclaimers" will help hiding the inconvenient truth that the STOP-DWI program, while declaring its good intentions, is a program based on financial corruption of government officials in order to increase convictions and revenues for the local government - and, I am sure, that perverse incentive, as I wrote in my previous blog post, lead to wrongful convictions, possibly, massive wrongful convictions.

And another truth is that the Delaware County residents will be saddled with the author of this "legal disclaimer" Porter Kirkwood, now as a judge, as unprincipled and as incompetent as he was in his position as a County Attorney, if they do not come to those voting booths and do not say "no" to Porter Kirkwood.

Delaware County residents who suffered for nearly two decades from the petty tyrant Becker, deserve better than two petty tyrants Kirkwood and Northrup who are about to replace Becker.

Do not allow the Hydra that Judge Becker was to sprout two ugly heads instead of the one that is leaving.  

Vote "no" as to both Kirkwood and Northrup.  Come to those voting booths, and tell your family, friends and neighbors to come and vote "no". 

You will save yourselves and your loved ones, for years to come, from a lot of misery.

Somebody is antsy in Delaware County...

In the morning, I published a blog about a "financial arrangement" in Delaware County, New York, where conviction fines finance the police, the legal aide, and now the prosecutors.

I also stated in the blog that the "masterminds" of the "deal of the century" are two judicial candidates, Porter Kirkwood (Delaware County Attorney) and Richard Northrup (Delaware County District Attorney) and listed instances of shady behavior of Richard Northrup before this "financial arrangement".

In the afternoon, my friend in Delaware County was already threatened with being "locked up" if she "does not stop blogging with" me.

It means that:

1) my blogs are read;

2) my blogs work in exposing misconduct of people;

3) those who intimidate my friends are really stupid people since they do not even know what blogging is when they demand that my friends stop blogging "with me".

I am blogging alone, individually and separately from my friends.

Yet, I will be publishing names of people who attempted to intimidate my friends or to pass intimidating statements from others.

One of such "referral source" is attorney Carol Malz of Oneonta, NY, who arranged a meeting with my friend, under an obviously fake pretext, to convey to her that she and I must stop blogging, "or else" there will be serious consequences for my friend in court, and that all troubles of my friend and her daughter (!) in litigation are because they associate with me.  

By the way, the 1st Amendment to the U.S. Constitution protects freedom of association from intrusion from the government, so it is obvious that the court system MAY NOT, constitutionally, take my friend's association with me (as the critic of judicial misconduct) against her in the court's rulings.

According to my friend, Carol Malz tried to subtly and not so subtly drop hints that my friend should really drop her civil lawsuit against police officer Derek Bowie (who assaulted her with a vehicle), and then the Delaware County District Attorney (who employs Derek Bowie's uncle, and therefore, prosecutes not Derek Bowie for assault and attempted murder, but my friend, Derek Bowie's victim, for a made-up crime) will "go easy" on her.  And, if she does not drop that lawsuit, she will be locked up.

Today the tune of intimidation was repeated - stop blogging (apparently "in association with" THAT Tatiana Neroni) - or you will be locked up.

Says a lot about integrity of judicial system, doesn't it, that simply being a friend of a critic of judicial misconduct puts a bull's eye on you and makes you a target of retaliation by the entire judicial system. 

Once again, I do not blog "in association" with people.  I blog on my own.

Intimidating my friends will not stop my blogging, as I believe my blogs protect them, not jeopardize them.

I believe that my friend Barbara O'Sullivan is safer when I blog about her.

What endangers her is the silence.

What helps judicial misconduct, police misconduct and prosecutorial misconduct is the silence, silence of people who, for financial or other reasons, are afraid to raise their voices against injustice that they clearly observe in front of them.

That's their choice.

And blogging is mine.

And I will not stop.