THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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, April 30, 2016
The Younger abstention died, and the right to sue in federal court was restored - in the bathroom in North Carolina
The Younger abstention, a doctrine by which federal courts refuse to review civil rights lawsuits, instead imposing upon the litigant the choice of forum in the state court, the choice of forum that is not allowed by the Civil Rights Act, 42 U.S.C. 1983.
Since federal courts are courts of limited jurisdiction governed under Article III of the U.S. Constitution which does not allow federal courts to change the U.S. Constitution or statutes enacted by the U.S. Congress - including the U.S. Civil Rights Act or the U.S. Congress's determination of jurisdiction of federal courts to hear civil rights lawsuits - any "doctrines" presenting a bar to federal civil rights lawsuits are unconstitutional as outside the power of federal courts within Article III and usurping exclusive power of Congress to legislate under Article I of the U.S. Constitution.
That said, in a paroxysm of sycophancy, the legal profession and scholars parade the doctrine as a doctrine based on "comity" and "equity".
There is no equity in blocking a victim of civil rights violation by the STATE government by dismissing a properly filed federal civil rights lawsuit (without compensation of court costs spent on filing and prosecuting it) and directing the victim of constitutional violation by STATE government to argue that issue before a STATE court.
That doctrine has nothing to do with equity, but everything to do with caseload control - because such cases, and the federal court dismissing the lawsuit knows it very well - will die a violent death in state courts, often with sanctions for "frivolous conduct" - which sanctions the federal court then will refuse to review, now under a Rooker-Feldman doctrine.
Nor does Younger abstention have anything to do with "comity". Comity is DEFERENCE.
Deference to the state government that is a DEFENDANT in a civil rights action is called BIAS.
Bias is a constitutional problem tainting jurisdiction of the particular presiding judge.
When comity=deference is asserted on a doctrinal level, then bias against a particular class of plaintiffs in favor of a particular class of defendants is asserted on an institutional level in federal courts.
The pretense justification for the Younger abstention is that state courts are "capable" or "competent" (nobody is concerned whether they are willing or unbiased) to hear federal constitutional claims.
Yet, as of March 23, 2016 the Younger abstention simply died in the state of North Carolina.
Specifically, this "scholarly" doctrine has died in North Carolina bathrooms, or was flushed down the toilet - whichever you prefer.
A very fitting end.
Because on March 23, 2016 the North Carolina Legislature has issued the "transgender bathroom bill" which also included, reportedly, a prohibition to sue in state courts for ANY kind of discrimination.
Is it bad?
It is most glorious.
Now, no federal court in North Carolina may state, as a matter of law, that a state court in North Carolina is fully capable and competent to review federal constitutional issues of discrimination.
Now, by statute, North Carolina state courts are precluded from doing so.
And thus, federal courts may not use the pretense of the state North Carolina courts being allegedly capable and competent to review federal constitutional claims.
They will have to actually do their jobs.
And, civil rights litigants will actually have a possibility to get their civil rights lawsuits into federal court (unless more restrictions on civil rights litigation are invented by federal courts located in North Carolina districts) - and prosecute it in their chosen forum.
As the old saying went - every cloud has its silver lining.
Here, the silver lining unexpectedly came out of an overzealous bigotry of state legislators.
I wonder - maybe other states would join North Carolina in prohibiting their courts to review federal constitutional questions (it will not alter the current status quo much anyway, since courts across the country review federal constitutional questions raised in front of them as sanctionable conduct)?
I am just hopeful.
Then, across the country, people will finally be able to sue for human and civil rights violations the way the U.S. Congress planned for them in an enacted Civil Rights Act all along.
Testimony of American attorneys, including my own, is planned (in writing or orally if permitted) before the U.S. Congress at the next month's hearing as to whether ABA has a policy of non-support of human rights attorneys criticizing the government for political or business reasons
And, Dr. Teng Biao is a prominent scholar, and his name alone may sell the book, if marketing is the real consideration.
Here is Dr. Teng Biao's credentials published on the site of the Harvard Kennedy School/ Carr Center for Human Rights and Policy.
There is a policy, in the ABA and the local state bar associations of non-support of "human-rights lawyers as well as some public-interest and criminal-defense lawyers" who are suffering and have suffered political repressions from the state and U.S. government in retaliation for criticizing the state and U.S. government.
- should ABA abstain from criticizing the devil for hurting people
- in order to try to teach the devil adhere to the rule of law
The officers alleged sexual harassment and whistle-blower retaliation called "the burn" when no matter what the "guilty" officer does, she cannot escape petty picking that inevitably results in discipline.
See the full text of the lawsuit here.
In 2013, Northern District of New York rejected some of the claims, but allowed several claims to proceed to trial.
Three officers prevailed at the jury trial as to hostile work environment claims and were given a verdict in their favor, and the pregnancy discrimination claim of the fourth officer (refusing to give her lighter duties and making her work, with a high-risk pregnancy, with inmates and having to break up inmate fights) was rejected by the lower district court, see the jury verdict sheet here.
Recently, the federal appellate court reversed the dismissal of the pregnancy discrimination claim and sent it back to the district court for trial.
I encourage my readers to read the text of the initial lawsuit.
Putting a "urinal tablet" on the "heating coil" in order to make a woman with a long-awaited high-risk pregnancy feel sicker than she was.
Those are all public officials.
They have their own wives, daughters, mothers and sisters.
I am sure most of them are church-going men claiming they are God-fearing and pious.
How could they?
Obviously, they could.
And you know why?
Because they thought they are untouchable.
And they are.
Because, out of all claims that these women brought, only "hostile environment" survived.
Not the 1st Amendment retaliation.
Not the sexual harassment.
Only the amorphous "hostile employment environment".
Don't look that the jury rejected some claims. That happened because of how instructions as to the law were given, how the previous motions were decided.
We don't know the gender composition of that jury either.
As it is now, as a result of this lawsuit, sexual harassment in Ulster County jail and in other jails across the State of New York, against female CORRECTIONS OFFICERS may continue.
If female corrections officers are not safe from sexual harassment by their male colleagues and supervisors, inmates are simply doomed.
And the same can be said about the fate of whistle-blowers, especially female whistle-blowers.
A great message was sent by how courts decided this lawsuit as to the whistle-blower retaliation claims, to all whistle-blowers in New York, and especially to female whistle-blowers.
Keep your head low, don't whistle-blow.
Or feel the burn.
Delaware County: pet projects, pass-through grants, robbing children in foster care and compensation of foster parents
1) compensation paid for the child's board and care directly to foster parent;
2) support obtained from parents, if they are alive, reachable by support petition and have ability to pay;
3) the child's SSI payments through Social Security, if available.
I had some individuals come to me in Delaware County, NY when I was practicing last year and tell me that Delaware County Social Services is misusing foster children's SSI payments that must be used only for the children's care.
The allegation was that the Delaware County puts such monies in the general fund and uses it for its own needs, not for the child's, while at the same time suing parents for support.
I was also told that the Social Security administration was notified and was conducting an investigation.
I am not aware how that alleged investigation turned out, but misuse of federal funds by the County is a concern, especially in view of the fact that the County funnels millions of dollars, including state and federal aid into its pet satellite business - Delaware Opportunities Inc. (and the two affiliate corporations, see audit report posted by Delaware Opportunities, Inc.), while prosecuting two women from Deposit for being down on their luck and applying for food stamps.
By the way, Delaware Opportunities Inc. had a grant "passed through" from the Town of Deposit for "community development" - for $14,657 in 2014.
A "pass through" grant, by the way, is a grant for which the non-profit corporation employing 279 people in 2014, Delaware Opportunities, Inc., must APPLY to the pass-through authority.
Here, Delaware Opportunities, Inc., had to apply to the Town of Deposit to give Delaware Opportunities, Inc. a grant of $14,657 for "community development" benefiting the Town of Deposit residents.
Therefore, the Town of Deposit residents, including Tammy Stanton and MacKenzie Stanton, are entitled to know (1) why the grant funds were given to this non-profit and not to needy residents directly; and (2) how Delaware Opportunities, Inc. is benefiting "community development" of the Town of Deposit - other than, possibly, receiving some kick-backs to the Town council people, of course.
By the way, I asked in the FOIL request with Delaware County for the list of employees of Delaware Opportunities, Inc. working on county-funded projects - we will see if those lists will be released, and if they are, how many relatives of the local county and town government officials are working in that non-profit.
And, I also filed another FOIL request today verifying whether the Delaware County District Attorney's office has a contract with Delaware County Department of Social Services, similar to what Otsego County DA's office has with Otsego County DSS, for additional compensation in exchange for prosecution of DSS-targeted criminal cases.
What kind of community development a non-profit corporation handled FOR the Town of Deposit that is located within 40 minutes' drive away over the mountains that could not be given directly to the Deposit residents, so that Tammy Stanton and McKenzie Stanton would not have to apply for food stamps, I am exploring through separate FOIL and FOIA requests.
As to Delaware County and foster parents, I sought information about county-set rates of compensation for foster parents.
Since the former DSS Commissioner Moon announced in the press a couple of years ago that at any given moment there are more than 100 children in foster care in Delaware County, county-set rates of compensation of foster parents are a financial concern for taxpayers.
I will report the response to the FOIL requests in this blog.
A FOIL request was filed with Delaware County for cell phone numbers and bills, emails of county employees and for other important information
This is the first one, I will post the second one in a separate blog.
In view of the revealed fact that the alleged Deputy Sheriff Derek Bowie was never a legitimate police officer in Delaware County - because of how he hired and because he never lived in Delaware County during his employment, as was required by the conditions of employment, I made an inquiry as to the residency of the currently employed Deputy Sheriffs and of the Acting Delaware County District Attorney John Hubbard, who also has a residency requirement.
I also asked for lists of employees with salaries, salary history, assigned e-mails, assigned cell phone numbers, and I asked for the latest cell phone bills for each of the County employee who enjoys having a cell phone issued by the County.
I also asked for statistics, if any, of relatives employed in the County, and for all written policies the county has.
In the deposition of Derek Bowie he referred to certain written policies and procedures of the Sheriff's Department, yet, each time I ask for written policies, I am given a response that there aren't any.
Here is another try.
I will report on this blog as to Delaware County responses to this FOIL request.
And, I remind the Delaware County officials who may be reading this blog, of what U.S. Congressmen stated in their letter 2 days ago to the U.S. Comptroller in asking for an investigation into non-enforcement of Freedom of Information Act (a similar statute to FOIL under which I made this request):
I couldn't have said it better.
Delaware County insurance policy for this year - exclusions, exclusions to exclusions, and the cost of Derek Bowie and other discharged officers in raised premium
First, I was given nothing in response to my FOIL request.
When I asked, why, I was explained that they are waiting for a new insurance policy, so I asked for both old and new.
Several of days ago, I received both - but they appear to be limited liability policies covering only law enforcement personnel, while I asked for an insurance policy covering all Delaware County employees.
While I will address the issue on an administrative appeal for denial of my FOIL request, here are the old and the new insurance policies:
Here is the the "old" policy for the previous year.
Here is the renewed policy, for this year, until January 1, 2017.
There are interesting exclusions in the policy.
As to the new insurance policy, you can see a $3,623.40 hike as compared to the previous one, and the significant event in the previous year (2015) was the deposition of Derek Bowie in the lawsuit by Kylie Smith. Derek Bowie resigned or was discharged from the Delaware County Sheriff's Department that year.
Significantly, while the insurance company agrees to an obligation to defend against claims of personal injury and property damage by employees of the Delaware County law enforcement, the policy does not cover compensation of damages for personal injury and property damage, intentional acts, unjust enrichment by the County officials, defamation, violation of constitutional rights and any injury caused by vehicles, all in all for 20 types of exclusions.
Yet, the county taxpayers are currently paying, through insurance, for the legal defense of Derek Bowie's shenannigans in two lawsuits - one federal, and one in state court, and that is, possibly, the reason for the raised insurance premiums and extensive exclusions in the new policy.
In other words, the policy does not cover compensation for about anything that Derek Bowie did to his two suing victims - Barbara O'Sullivan and Kylie Smith.
As I mentioned above, there are 20 types of exclusions from the insurance coverage in the policy, and I encourage my readers to read the policy in full, here.
Some exclusions and "exclusions to exclusions" are interesting, some are good for the citizens and some are very clearly bad.
For example, there is an "exclusion to exclusion" that, even though there is no coverage for injuries caused by County vehicles, there is coverage for injuries caused by police vehicles during chase in order to apprehend a criminal suspect.
So, I understand that both the injured criminal suspect, the officers involved in the chase and the possible innocent victims of such a chase (motorists or pedestrians) can receive compensation from insurance within the policy limits.
On the other hand, there is an exclusion for failure to provide or negligent provision of medical help.
That means that the habitual failure of the Delaware County Sheriff's department to provide medical help to inmates and pretrial detainees in the Delaware County jail is not covered by insurance.
That means that the compensation for such failures in case a lawsuit happens, and it is waiting to happen, will come directly from the coffers of Delaware County, without any possibility of recovery from insurance, and will be turned against taxpayers through raised property taxes.
That's even more reason to demand accountability of the County and to demand that the County pays attention to detainees and inmates' medical needs - failure to provide for such needs can be costly for the County taxpayers.
There is an "exclusion to exclusion" for property seized by the County. While property in custody of the County other than property seized by the County, is not covered by insurance, the property seized by the County, is.
This means, if the County damages or loses property it seizes during arrests, at least insurance is available to compensate the damage.
All in all, it means that employees of Delaware County will be provided legal defense at the expense of insurance if they do something wrong, but as to damages - they are on their own, they will have to pay out of pocket as to intentional acts.
One other important issue.
It appears that despite being busted by New York State Comptroller for not submitting its contracts to public bidding, Delaware County continues to do the same.
I am currently researching documents of the Delaware County's tumor - the Delaware Opportunities, Inc., to show how the taxpayers' money are sucked out, at the threat of foreclosure on the taxpayers' homes, and are funneled, under claims of "serving lofty causes" no less, into a pet business of Delaware County officials.
Any contracts made by the County without bidding are suspect.
Contracts with the liability insurance company fall into the same category.
Since the premiums are so high, and insurance contract is a financial service based on which insurance company offers a better quote for the same coverage, rather than a "personal service", insurance contracts should be subject to public bidding.
This insurance policy wasn't.
I am verifying that in a FOIL request I filed with the County.
I will post my yesterday's FOIL requests in a separate blog.
Friday, April 29, 2016
Their letter reportedly says, among other things, the following:
"The Freedom of Information Act (FOIA) is a vital tool that protects one of the cornerstones of our Nation: the American public's right to know what its government is up to."
The Congressmen obviously did not ask the opinion of some Delaware County officials about the value of access-to-records laws (such as "don't get your nose into our business, etc.") before writing the letter.
It will definitely help not only for federal, but also for state public officials to read that letter.
Because it applies to state records, and state access-to-records laws, too.
And, of course, there are not only FOIA and FOIL among access-to-records laws, the scope of these laws is much broader, and all of those laws help people figure out what the government is up to.
I am currently preparing a book specifically on access to records in a certain narrow area of law where knowledge about access to records laws can help a lot of people who are, let's say, far from being privileged members of society.
I cannot promise the date of publication, as it gets delayed by my appeals of the disciplinary case (which now has a likelihood to head towards the U.S. Supreme Court), and I write in two languages at the same time (Russian and English, the books will not be 100% identical), but I do promise that
- it will be this year, that
- it will be affordable, that
- it will cite to free and readily available information sources and
- that it will be both in e-version and in print;
- there is a possibility of a Spanish translation the year after the year of publication; and
- there is a possibility of an audio version in Russian and in English.
And, of course, I promise thorough research and valuable information in the book as to how to access records in that narrow area of law (which will be applicable in wider settings, too, since these laws have a very wide area of application).
The value of access-to-records laws where litigation is pending, going on or threatened, is that such access-to-records efforts may be done as a leverage against the government, outside of court proceedings, and thus outside of control of courts that are often biased in government's favor.
The publication date approaches, but is still away.
I am vigorously working on the book and I promise I will make the publication date known on the blog.
I will post some interesting blogs tomorrow commenting on public documents obtained through access to records laws and otherwise freely obtained on the Internet.
The Oklahoma legislation is going to fix what didn't need to be fixed, but was undermined by a judicial decision - the forcible sodomy statute
The statute, in fact, does have in it an element of lack of consent when the person's mind is unsound (that includes, for any reasonable mind, temporary unsoundness through intoxication or unconsciousness).
The 5 judges, as I wrote in my yesterday's blog, are all very "accomplished", they are all portrayed in their biographies as brilliant lawyers, scholars and jurists.
In other words, they are definitely not dumb and they certainly can read.
And if, after they read the statute that includes a provision for "unsoundness of mind", they still ruled - unanimously - that intoxication or unconsciousness of the victim is not included into that statute, one needs to look for answers for that decision deeper - and I hope that the FBI should look into the possible case of corruption, and not necessarily by relatives of the defendant.
There may be some high-ranking perv somewhere, caught for the same thing, who needed protection - and got it.
In any event, the Oklahoma Legislature reacted to this collective act of judicial unsoundness of minds (or corruption) by publicly announcing that they will fix the perceived gap in the criminal forcible sodomy laws.
The sad part about it is that - it didn't need fixing, and more taxpayer money will be poured into the hole, simply because some supposedly "brilliant" public servants would not do their jobs properly.
Thursday, April 28, 2016
By ruling that forcible sodomy laws do not apply to intoxicated or unconscious victims, Oklahoma was turned into a dangerous place for residents and visitors
Judge Gary L. Lumpkin:
These 5 people also gave an opportunity for really sick crimes to be committed - because such an approach does not take into consideration as to who rendered the person intoxicated or unconscious.
These 5 judges put together a defense for really sick individuals to first lace the drink or get a person drunk, or beat the person unconscious - and THEN rape him or her.
The sick birds on the street are no thinking - "we've got a free ride" out of prison.
Think about it - with those shining biographies.
A high school.
A law school.
Career as a lawyer.
Career as a judge.
FIVE PEOPLE, all educated as lawyers and judges - could not READ and understand that "unsound of mind" applies to unconsciousness or intoxication.
Unanimously they could not read that?
Or, another, more sinister explanation may be that they know there is some pervert in their ranks who is afraid for the statute to be - soon - applied to him and her, and they unanimously protect that pervert by their decision?
The prosecutor stated that the court's decision is "insane, dangerous and offensive". I couldn't agree more.
Wednesday, April 27, 2016
Honesty of the local law enforcement personnel in Delaware County, New York, is governed by insurance policy
That's a portion of Delaware County liability insurance policy for actions of its law enforcement personnel.
The policy is pretty standard and, I am sure, a similar policy covers actions of firefighters.
Here is the interesting portion that I would like to share (I will analyze the policy in a separate blog, probably, tomorrow):
There were a lot of people who, based on their emotional attachments to individuals working in the local law enforcement and the Delhi Fire Department, defended their loved ones to the point of casting ugly allegations against the victims in Barbara O'Sullivan's house fire, as well as against her daughter, her extended family, me who reported the case, misconduct of the law enforcement and firefighters included, and even against my husband who has nothing to do with reporting of Barbara O'Sullivan's house fire story.
Those relatives , driven by their emotional attachment to their loved ones, were telling me that "they know", even though they were never at the scene of the fire, because "they know" their husbands, or boyfriends, or former comrades-in-arms, and "they know" that those loved ones or comrades "can never" and "they are not liars", and because of that, I am the liar, and I need to have my head checked out, and to relearn the law (why I need to relearn the law in journalism, I don't know), and all other nice things that I need to do, including apologize to the Fire Department.
I won't apologize.
Read the liability policy of Delaware County regarding its law enforcement personnel.
It is pretty standard policy, I am sure.
Just read it.
The insurance policy says, in black and white, that "the insured" "shall not" (that is a prohibition) "admit any liability" or "assume any obligation".
Do you know what that means?
It means that Delaware County law enforcement personnel is PROHIBITED to tell the truth and "admit a liability" or "assume an obligation" - in other words, they are PROHIBITED to say - YES, I caused a bodily injury of this person, or "I neglected my duties and caused injury to a person or property".
They are prohibited to say that.
You can read the full text of the insurance policy here.
And, even though I will be requesting a separate policy as to firefighters, I am pretty sure that it will say the same.
So much for the claimed honesty.
The demographics of the rural Otsego and Delaware County, New York - people are leaving, while the government is growing
- schools that are closing for lack of children,
- maternity hospitals, even in a relatively large college towns, are closing;
- "scalings-down" of major "community projects"
- The school districts - when there are less children to teach;
- Social Services - where there are less families to supervise;
- Police and District Attorney's offices - where there are less people to commit crimes;
- the Court system - where there are less cases to be brought voluntarily by local residents, and by social services and the District Attorney?
- all the clans illegally employed by the County, the "hiring process" is described here, and
- the tumor on the budget of Delaware County, the Delaware Opportunities Inc. (and the like organizations fed out of the County's budget) where the local governmental officials that command the budget sit on the Board and where, reportedly, a ton of relatives and friends of county officials are employed.
In other words - while people are leaving the State of New York, and the rural counties, which is shown by business decisions to close schools, maternity hospitals and ditch the much-promoted swimming pool project, the "demographics" of the local government goes in reverse - it grows, salaries of officials grow, numbers of officials (judges, prosecutors) grow.
Because these people will not survive outside of the government, in an honest self-made business?
They need taxpayers as captive cash cows to subsidize them?
Watch out, Delaware County taxpayers, as well as Delhi Village and Town taxpayers, for any increases of levies or taxes.
The parasites in the local government need the money of the remaining captive cash cows, the taxpayers, to survive, thrive and feed their clans.
Say "no" to the growing local budgets.
They have no basis to ask for growth.
And - I will run a separate blog on the unfunded increase of the salaries of local County District Attorneys, as well as a separate blog about the alleged "budget savings" recently reported by the Delaware County Department of Social Services.
I will publish the entire motion and comment on it in a separate blog, today or tomorrow.
One of the prominent issues in my case was misconduct of New York State disciplinary authority in prosecuting me for alleged attorney misconduct - where New York State disciplinary authorities actually refused to prosecute themselves for multiple disciplinary violations and dismissed complaints against themselves.
A similar situation of misconduct is currently unfolding in Florida.
There, an attorney who was consulted about a disciplinary case by the subjects of the disciplinary investigation and prosecution, then switched sides and ghost-wrote an affidavit for the prosecutors, while reportedly making false claims in that affidavit into the bargain.
The lawyers - same as I did in my case - requested dismissal of the disciplinary proceedings based on prosecutorial misconduct, because it goes without saying that an attorney misconduct proceeding cannot be prosecuted with the help of attorney misconduct.
Here, attorney misconduct was apparent.
1) There was a conflict of interest in the attorney initially contacted about representing the defense side to switch to the prosecution side;
2) There was misconduct of the prosecution side to accept such help and allow the former defense attorney in the same case to ghost-write a pleading for the prosecution;
3) There is misconduct on the side of the former defense attorney and the disciplinary prosecutors to submit such a pleading to the court, and to submit a false affidavit to the court.
Definitely, means by which the government acts, matter.
And definitely, the attorneys who were and still are subjects of investigation and prosecution in Florida, irrespective of whether they actually did or did not do anything wrong, were deprived of their due process right of an impartial prosecutor, and to have elementary honesty in proceedings.
A disciplinary prosecutor should be squeaky clean and practice what he preaches, first and foremost.
A new U.S. Supreme Court 1st Amendment case - factual mistake in sanctioning an employee for protected conduct is not a defense in a civil rights lawsuit
Here is the opinion in full.
The case is decidedly weird, on many levels.
The gist of it is that a police officer was demoted because somebody saw him (and reported him to his supervisor) standing with a sign supporting a certain official in his election campaign and talking to that person's campaign workers.
The supervisor perceived that reported conduct of the police officer as participating in a political activity - which is not allowed to police officers and other government employees.
It was actually a misunderstanding. The police officer held a sign he was bringing home to his bed-ridden disabled mother at her request, he did not support the campaign of that individual personally.
The big fight was that the officer was demoted and sued for discrimination on 1st Amendment grounds, among other grounds.
The dissent said that, since it was a misunderstanding and the officer did not ACTUALLY engage in political conduct, 1st Amendment cannot be invoked in his lawsuit. In the opinion of the dissent, what was done to the police officer (demoting from investigator to patrol) was "callous, but not unconstitutional".
Whether the 1st Amendment could or could not be invoked by the officer in a discrimination lawsuit made a difference between whether the officer's civil rights case would be dismissed or allowed to proceed.
The U.S. Supreme Court reversed the lower courts' decisions and allowed the officer's case to proceed, stating that factual mistake is no defense. If the officer's employer believed that the officer is demoted because of his participation in a political campaign, that was activity protected by the 1st Amendment, and the lawsuit could proceed.
The issue though is not that simple.
In fact, if the officer's employer believed that the officer did participate in a political campaign, and did that openly, so that his holding of the sign while talking to the campaign workers of a certain political candidate could send a message to the public that the local police endorses that political candidate, and where such political activity was prohibited as a condition of employment, the government was justified to demote or fire the officer, 1st Amendment or no 1st Amendment.
Such firing would definitely have met the required strict scrutiny test, because on the other side of the balancing test as to whether the 1st Amendment rights were violated and whether such a demotion or even firing would be permissible under the 1st Amendment, is the requirement of government neutrality and non-endorsement by the government of political candidates, to preserve integrity of democratic elections.
So, I am afraid, we did not see the last of that case, it can return to the U.S. Supreme Court after its round through the lower courts on remand, and, of course, I will report it if it does return.