"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, July 31, 2015

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.

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