"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 9, 2016

A new way to make motions in New York - Judge/attorney Jonathan S. Follender makes more of exciting new law

I wrote earlier on this blog about the exciting new laws that attorney Jonathan S. Follender of Arkville, NY (also a judge of Denning Town Justice Court, Ulster County, New York) spawns from time to time.

So far, Attorney/Judge Jonathan S. Follender has created the following exciting laws:

  • Loss of companionship of a dog - with all due respect to dog owners and lovers (I am one of them myself, long-term), there is no such cause of action in New York common law, and what is remotely similar, loss of consortium, presupposes loss of spousal company, so "loss of companionship of a dog" raises some peculiar bestiality suspicions in this context;

  • Frivolous default - a default in a civil action is when a party does not "appear" after being legally served with process, and the case is decided by default against that party.  There is no legal concept in New York of "frivolous default".  Mr. Follender argued a "frivolous default" concept (you ask him - he knows what it is, I don't and nobody else does) to the now-retired Judge Carl Becker in Delaware County Supreme Court, Judge Becker swallowed anything from Mr. Follender as long as he was saying that I was bad, no matter how legally impossible and crazy the concept of "frivolous default" in a civil action where I did not represent anybody, could be;  my name was on it - so Becker granted anything to Follender, since he said it was against me;

  • Frivolously causing loss of subject matter jurisdiction by the court (I hear laughter by any attorneys who know what I am talking about) - Mr. Follender argued that to the same Judge Becker, and then both of them happily proceeded litigating a case where jurisdiction was lost;

  • Frivolous satisfaction of a money judgment "too soon" - Mr. Follender argued that to the same Judge Becker, right after he alleged frivolous delay of satisfaction of that same money judgment, and obtained a ruling on frivolous conduct on both - in the second case, after arguing that I frivolously caused loss by the court of subject matter jurisdiction and while there was no indication that I was attorney of record in that case.

Those are Mr. Follender's past accomplishments.

Yet, his unrestricted creativity does not stand still.

Recently, Mr. Follender added to his treasure box of inventions by spitting out a brand spanking new way of making motions in the State of New York - by a request to the court for a "sua sponte" determination.

Now, a request to a court for an order is called a motion in New York, Civil Practice Law and Rules (CPLR) 2211.

CPLR 2211 says:

 "Application  for  order;  when  motion  made. A motion is an application for an order. A motion on notice is made when notice  of the motion or an order to show cause is served."

Yes, a motion is an "application for an order".

And it is made - when? - when:

1) a notice of motion, or
2) an Order to Show Cause (signed, Mr. Follender serves unsigned orders) - is served, and served correctly:
3) served not by a party - Mr. Follender serves his own pleadings regularly in that particular action, in violation of the law; and
4) served within the statutorily required time - 

  • at least 8 days in advance of the returnable date noted in the Notice of Motion, if done by personal service (too far for Mr. Follender to come visit me in South Carolina), or 
  • by overnight mail within 9 days of the returnable date in the Notice of Motion asking the court for particular relief - overnight mail costs money, not for Mr. Follender, or 
  • by regular mail adding 6 days to 8 days - 14 days in advance of the returnable date, that also requires some money, as well as thought and knowledge.
And, don't forget - a filing fee of $45.00 and filing of the new Notice of Motion, supporting affidavit and Afifdavit of service, with the County Clerk.  

Of course, when a motion is already pending, as it was in this particular case, an attorney can simply amend his old notice of motion, notify the opponent about that by serving the Amended Notice of Motion within a reasonable time for the opponent, especially and out-of-state opponent, to be able to respond to it, use the same filing fee that you already put in for the old motion, and ask the court to adjourn the returnable date to allow the opponent opportunity to oppose the new motion.

That requires some thought though.

Definitely not for Mr. Follender.

His signature behavior is, instead, to ask the court, within 4 days of the old returnable date, breaking every rule in the book of how motions must be made, and notifying me post-factum of the "request for sua sponte order" that I received more than a week AFTER the returnable date.

Here is a brand new subspecies of motions that Mr. Follender invented - very cheap and economical one.


Mr. Follender sent all those multiple above-mentioned requirements of New York motion practice to the winds and instead "requested that the lower court sua sponte vacate ...".

The date he asked for it was March 28, 2016.
The returnable date of the PREVIOUS motion was April 1, 2016.
No Notice of Motion accompanied this request.
No filing fee.
No new motion returnable date.
And it was served, by a party, Mr. Follender, just 4 days before the OLD returnable date.

See how many conditions you can skip if you follow Mr. Follender's innovative lead?

Instead of jumping through all of those boring hoops called statutory law and due process (Mr. Follender is especially oppositional to due process, I will show you how oppositional later in this blog), you can simply "ask the court that the court sua sponte do something".

By the way, my heart of a grammarian (I have a Masters degree in teaching English as a foreign language, by the way) soared when I saw that construction used by Mr. Follender.

That grammatical construction is "elliptical", it misses a word - "should", or "shall".

Defendants-respondents, in fact, requested, that "the court should/shall sua sponte vacate" - Mr. Follender was giving the court an order, not requesting one from the court.

Consider the savings!

No filing fees.

No mailing expenses or expenses for personal service.

None of that.

Just "request that the court (should) sua sponte" do what you need the court to do.

At any time.

Of course, you need to have a really privileged position so that the court would rubber-stamp any rubbish that comes out of your mouth.

Or a real grudge against the person who is the targeted victim of that rubbish.

Like my friend recently told me - when in doubt, blame the Neronis.

But - for what it's worth, I am publishing Judge/attorney Jonathan S. Follender's new invention:

no notices of motion
no orders to show cause

Just a "request that the court sua sponte...".  You know.

And as to due process -  you know what Mr. Follender (remember, he is a judge in a criminal court) thinks about due process.

Here it is, from the horse's mouth (no pun intended, I don't want to hurt any equine feelings):

I will explain the complex thought process of Mr. Follender (a criminal court judge, as well as a private attorney).  As a criminal court judge, Mr. Follender MUST know what due process is.  

Mr. Follender says that "[o]f course, to Ms. Neroni, any adverse judicial decision of any court impinges upon her "14th Amendment" rights...".

In the VERY SAME BREATH, Mr. Follender says that jurisdiction of the New York State Court of Appeals was invoked "as of right" (constitutional appeal) improperly because "this court"

(yes, he is asking the 3rd Department to determine alleged frivolity of my appeal to the UPPER court, the New York State Court of Appeals, for which the 3rd Department does not have subject matter jurisdiction - but it did not stop Mr. Follender before - see above shenanigans with Carl Becker) 

the 3rd Department "did not determine any direct or indirect issue of the 'state constitution or of the /sic/ United States" (he meant the Constitution of the United States, it is difficult to write that word too often for Mr. Follender).

But, the interesting point is that the fact that constitutional issues were raised, but the court IGNORED THEM - as Mr. Follender acknowledged - DOES constitute a violation of PROCEDURAL, most basic, due process, under the 14th Amendment of the U.S. Constitution.

I was entitled at least to a review and a REASONED determination of why my constitutional issues, most importantly, the 1st Amendment issue in criticizing misconduct of Mr. Follender, a judge, and my access to court, another 1st Amendment issue - were denied.

I guess, in New York it takes a judge to be so incompetent, and it takes a judge to be so coddled by the system that he instead thinks himself a legal genius and starts celebrating his own incompetence with further and further "discoveries" - like "a request that the court ( ) sua sponte vacate" - without any restraint.

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