"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.

Thursday, September 24, 2015

An appeal was filed in the 2nd Circuit requesting sanctions against the creator and members of the New York Statewide Commission for frivolous conduct for maintaining positions in litigation inconsistent with positions as creators and members of the Statewide Commission

My husband Frederick J. Neroni filed an appeal yesterday with the U.S. Court of Appeals for the 2nd Circuit in a case Neroni v Zayas, Case No. 15-2030.

He gave me permission to publish it, and I will today, as soon as I find a way to upload the file.  The Blogger platform does not directly provide for it, and I am not that computer savvy, so, please, bear with me.

I will post the most important points of the appeal, issue by issue.

My husband raises the following important issues in his appeal (among others, there are many important issues that he raises):

  1. practice of law cannot be constitutionally regulated by the government when the government did not provide a clear definition as to what practice of law is;
  2. criminal prosecution for unauthorized practice of law (UPL) cannot constitutionally be done by the government when the government did not clearly define what the practice of law is, so that the public has a clear advance notice of prohibited conduct;
  3. case-by-case prosecutions for UPL where courts determine after the fact what conduct does or does not qualify as UPL are in violation of the Due Process/lack of notice, Bill of Attainder and Ex Post Facto Clauses of the U.S. Constitution;
  4. attorneys in New York are not given ANY judicial review of revocation of their law licenses (a due process right in one's livelihood) because:
    1. the nature of attorney disciplinary proceedings is administrative and not judicial, even if it is handled by a court as a license-issuing and license-revoking administrative body; 
    2. all other proceedings to revoke occupational licenses in New York, other than law licenses, are administrative in nature;
    3. combination in the disciplinary court of legislative, prosecutorial and adjudicative functions, and lack of discovery and other procedural protections define attorney disciplinary proceedings as administrative in nature
    4. individuals in New York whose occupational licenses were revoked for administrative bodies, have a right to bring a court challenge of such a license revocation through an Article 78 against the licensing body from the trial-level court up through two levels of appeal.  No judicial review of law license revocation is allowed, and that is an equal protection problem.

As an important point, my husband requested the U.S. Court of Appeals for the 2nd Circuit to impose sanctions for frivolous conduct upon the following parties in the appeal and their attorneys, New York State Attorney General Eric T. Schneiderman (also a Defendant-Appellee in the action) and the attorney of record Barbara Underwood:

1.  Defendant Lippman obtained a dismissal of Mr. Neroni's challenge that Mr. Lippman's rules of attorney regulation are unconstitutional because of, among other things, lack of uniformity across 4 departments and lack of fairness in license revocation proceedings governed by court-created rules.  Then, Mr. Lippman, without notification of the federal courts, on the trial or appellate level, changed his position by creating and running a Statewide Commission for Attorney Discipline which is charged with a goal to verify how to make attorney disciplinary proceedings more uniform and fair to the disciplined attorneys.  Such a position, in Mr. Neroni's view (which I share) is inconsistent with Defendant Lippman's position in litigation.  Defendant/attorney of record Schneiderman did not disclose the change of position to the federal court, which constitutes frivolous conduct.

2. Defendant Monica Duffy (3rd Department disciplinary Committee) and Karen Peters (3rd Department Chief Judge) are members of the Commission.  They similarly obtained a dismissal of Mr. Neroni's challenge to the rules created by the 3rd Department and applied by the 3rd Department Committee in attorney disciplinary proceedings that Mr. Neroni challenges, as well as engaged in post-disbarment investigations of Mr. Neroni and blocked Mr. Neroni's access to the file.  At the same time, the court and the Committee participate in the Lippman's Commission for Attorney Discipline as members (counsel for Peters, deputy clerk of Peter's court and Monica Duffy herself are members of the Commission).

3. Defendant Dean Skelos/NYS Senate obtained a dismissal of issues such as lack of proper statutory scheme for attorney discipline and the resulting selective non-enforcement of attorney discipline in attorney disciplinary proceedings, and then is reviewing a Bill S24 designed to create a separate Commission on Prosecutorial Misconduct, which Commission would be clearly not necessary had the disciplinary committee not been engaged in selective non-enforcement of attorney discipline against prosecutors.  Such a change of position is inconsistent with NYS Senate's position in litigation in Neroni v Zayas, change of position is not disclosed to the federal trial/motion and appellate courts, and continued opposition of Mr. Neroni's appeal by Defendant NY Senate, same as by other above described defendants, in view of their material change of position to positions aligned with Mr. Neroni's arguments, is frivolous, sanctionable and should be sanctioned by the appellate court.

4.  Defendants did not notify the court of the change of applicable law that was disfavorable to their position and requires reconsideration of the court's dismissal of Mr. Neroni's constitutional challenges.

(1) The district court dismissed in March of 2014 Mr. Neroni's challenge to the anticompetitive composition of disciplinary committees defined by the adjudicating court.

In February of 2015 the U.S. Supreme Court confirmed the anticompetitive nature of composition of licensing boards run by supermajorities of licensees and ruled that such composition is also in violation of federal antitrust laws (i.e. a federal crime) and strips members of such disciplinary committees from immunity in civil lawsuits for antitrust violations.

Attorney's organizations fought that decision before it was made through amicus briefs (unsuccessfully), and state authorities defied it after it was made.

Even though in February of 2015 Mr. Neroni's action was still pending in the court below, Defendants made no effort to notify the court of the change of law that affected the litigation, which was their duty to do and which constituted frivolous and sanctionable conduct.

(2) The district court dismissed Mr. Neroni's pre-enforcement action as to possible UPL prosecutions claiming that Mr. Neroni's fear of prosecution for certain conduct is unfounded.

With such a law on the books since June 3, 2015, Defendants continue to oppose Mr. Neroni's appeal of dismissal of his pre-enforcement challenge of possible UPL prosecution on exactly the same issues as the 2nd Department ruled constitute UPL.

Such non-disclosure and continued opposition to appeal is frivolous, sanctionable and should be sanctioned, as Mr. Neroni argued, and I agree.

Public officials cannot play Dr. Jeckil and Mr. Hide in one person all the time and play fast and loose with public trust.

They cannot continue to maintain diametrically opposite positions inside and outside of litigation.

That is frivolous, attorneys and parties are sanctioned for that, and government defendants and attorneys should be treated no differently.

I will inform the public as to what the 2nd Circuit says to Mr. Neroni's challenges on appeal.

Stay tuned.

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