"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.

Saturday, December 5, 2015

The irresponsible experiment with court access - secret policies of the U.S. District Court for the Northern District of New York against civil rights plaintiffs

On October 20, 2014 the Chief Judge of the Northern District of New York commenced an anti-filing proceeding against my husband based on his constitutional civil rights lawsuits, to block him from access to court to complain about any future constitutional violations by the government.

In the Order to Show Cause of October 20, 2014 there were no grounds shown: not statutory, not through case law, not through anything, for imposition of an anti filing injunction Chief Judge sought to impose.

Mr. Neroni opposed the Order to Show Cause and made a motion to recuse based on the court's incestous relationship with certain attorneys that the court granted boons in the cases that the court used as grounds for anti-filing injunction, such as attorneys from Hiscock & Barclay, see also here, (now Hiscock & Barclay merged with another firm and is called Barclay Damon) and Hinman, Howard and Kattel, advisor of the court and at the same time employer of a defendant, Ellen Coccoma, wife of the Chief Administrative Judge for upstate New York Michael Coccoma.

I will upload Mr. Neroni's opposition a little later, it is large, has a lot of exhibits and requires a lot of time to upload.

In November of 2014, NDNY already imposed the anti-filing injunction, without an evidentiary hearing, based on 5 civil rights cases - at the very same time as the U.S. Congress discussed amendment of Rule 11 (sanctions rule), with a vigorous debate that sanctions will be abused by federal courts and disproportionately imposed upon civil rights plaintiffs (like Mr. Neroni) in order to chill civil rights litigation (which is what the anti-filing proceedings were doing).

Two of the five cases that the Order to Show cause for the anti-filing injunction against Mr. Neroni is based upon were still pending at the time the Show Cause Order was issued.

I was Mr. Neroni's counsel in those two cases (Neroni v Zayas, 3:13-cv-127) and Neroni v Grannis (3:11-cv-1485), and a co-Plaintiff in one of them, but the parallel proceedings were commenced ex parte, without notifying me as counsel or co-Plaintiff, while NDNY called the entire proceedings "frivolous" (which affected my personal rights, too, requiring notice to me of the commencement of those parallel proceedings, moreover the court was constrained by court rules and ethical rules not to communicate with Mr. Neroni, a counseled party, directly and not through his counsel).

But, back to the basics.

October 20, 2014 - Order to Show Cause was issued by the NDNY court, not showing any legal basis for imposition of the anti-filing injunction (see that order included into the Appellee's brief interlinked below).

November, 2014 - the Anti-filing injunction, here, now showing (with notice given backwards, after the fact - which is unconstitutional per se) that the basis of the Order to Show Cause WAS actually the so-called "All Writs Act", not that Mr. Neroni was aware of this since the Order to Show Cause never gave him that notice;

Mr. Neroni appealed the anti-filing injunction in 2014.

The U.S. Court of Appeals for the 2nd Circuit required Mr. Neroni to comply with the filing rules on an extremely tight schedule, and Mr. Neroni, a pro se party, did comply with those rules and filed his Appellate Brief and appendix timely.

The U.S. Court of Appeals for the 2nd Circuit then slept at the wheel and did not issue a scheduling order in the case until October, 2015.

The 2nd Circuit appointed the U.S. Attorney General's office for the Northern District of New York to represent the now new Chief Judge of NDNY Glenn Suddaby as the Appellee (opponent) in Mr. Neroni's pro se appeal.

On December 2, 2015, three privileged governmental lawyers, only one of whom was admitted to the 2nd Circuit, filed a brief on behalf of Judge Suddaby, it is available here.

In that brief, for the first time since the Order to Show Cause was issued on October 20, 2014, NDNY revealed that it was acting on policies (and Article III of the U.S. Constitution giving limited powers to federal courts do not allow federal courts to engage in policy-making, especially on issues of access to court, a constitutional issue, that is the exclusive prerogative of the U.S. Congress under Article I of the U.S. Constitution).

Here is the policy NDNY Chief Judge Suddaby provided.

Civil rights litigants and attorneys practicing in NDNY might find it useful to familiarize with this policy that was not made part of the "Local Rules" of that court, but is claimed to exist since 2007.

By the way, it is also claimed to have been significantly amended, with new procedures, after I filed my lawsuit against Judge Becker in December of 2011.   An interesting response, isn't it?

The policy:

So, there exist Congress-enacted statutes.

There exist Federal Rules of Civil Procedure.

There exist publicly posted court rules.

There exist publicly posted local rules of court that public has a notice of an opportunity to comment on before they are introduced.

And - there exists a secret policy that overruns all of the above and that is pulled out of the court's hat long after the court was supposed to give a litigant notice that the court is actually acting on this policy and on nothing else.

The brief also mentioned close to 20 cases from the 2nd Circuit spelling out more policies on imposition of anti-filing injunctions and so-called "tests" that Mr. Neroni allegedly did not comply with in opposing the Order to Show Cause in 2014 and allegedly did not spell out in his appeal in 2015.

Once again, the notice of the "tests" he was supposed to comply with in October of 2014 was given to him, after the fact, more than a year later, in an opposition to his appeal, in another court.

And, a privileged young woman, a Yale Law School-educated U.S. Assistant Attorney General Jaynnie Lilley argued (in a footnote only) that Mr. Neroni's constitutional arguments "are meritless and are not worthy of response".

The only place this young attorney sworn as an officer of the court to protect the U.S. Constitution, found it necessary to address egregious violations of Mr. Neroni's constitutional rights which were absolved through application of various types of immunities without the court even looking at the merits of the cases, was in a footnote at the end of her brief - like this:

"(violations to rights under the First, Fifth, and Fourteenth Amendments)" that are "meritless and not worthy of response".

By the way, this disdainful statements was made by Mrs. Lilley in the same breath as Mrs. Lilley spelled out the "test" by which the 2nd Circuit declared that "issues not sufficiently argued in the briefs are considered waived". 

When an appellee claims that certain issues are "not worthy of response", that means the appellee is choosing not to respond to those issues - at the peril of that same test being applied to him and all of his defenses to those arguments being "considered waived".

What do they teach them in Yale Law School?

Well, the worthiness of that Ivy League "legal education" was recently shown when two months ago, in October of 2015, a team of prisoners without any legal education defeated a team of law students from Harvard Law School.

And, law students interviewed after the defeat clearly stated the reasons for the defeat - the law students did not consider uneducated prisoners as worthy opponents and did not prepare ("they caught us off guard").  And that is, when the conditions for preparation for the debate were slanted against the prisoners and in favor of the privileged and highly educated Ivy League law students, "the best of the best" - because prisoners were not allowed to do research online, and there was no such restriction upon law students.  

That's what happened here, too.  A disbarred attorney and a civil rights litigant is not considered a worthy opponent, and a young and privileged Ivy League law school graduate looks at him down her privileged dainty nose in the hope that ANYTHING that the government says will be swallowed by the court and treated favorably.

We'll see whether the 2nd Circuit's fairness and impartiality will be on par with those who ruled the competition between the Harvard Law School students and prisoners.

But, that footnote above is the essence of what the government is doing with civil rights litigation - it is quashing it, with an implication or open declaration that it is not worth a response, and is punishing victims of constitutional violations with blocking all opportunities for them to complain against ANY FUTURE CONSTITUTIONAL VIOLATIONS BY THE GOVERNMENT against them.

That is the same as putting a bull's eye on the person and tell the government - do ANYTHING YOU WANT to him, he has no right or remedy to protect himself.

Does it look like a constitutional democracy to you?

In his testimony before the U.S. Congress Judiciary Committee in opposition to the new version of the federal court sanctions rule, the President for the advocacy group, Center for Constitutional Litigation, called such an amendment to sanctions, same as the previously existing version of that same rules abolished in 1993 because of its targeting of civil rights plaintiffs and chilling civil rights litigation, "an irresponsible experiment with court access".

Any sanctions imposed upon people for raising constitutional arguments and trying to obtain a legal remedy, like Mr. Neroni was trying, against powerful government officials for violating of his constitutional rights, is, similarly, an irresponsible experiment with court access that should not be happening in a democratic society.

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