"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, June 11, 2016

NDNY Magistrate David Peebles continues to pretend he is still a magistrate, and continues to engage in misconduct after his term as a magistrate expires

I continue to publish a story as to how the U.S. District Court for the Northern District of New York, faced with my motion to recuse and vacate its previous unlawful decision to strip me of 3.5 years worth of my work as an attorney in a civil rights case, started to engage in ex parte communications with parties about me and to manipulate the court docket.

I wrote about the court's efforts to issue a secret illegal order of suspension against me and efforts of the new attorney for the Plaintiffs, in collusion with the attorney for the Defendants, to then strip me of my legal fees, you can look up those blog posts by entering the word "Argro" in the search box on the right in this blog.

As of 3/3/2016, as the docket shows, the Plaintiffs were forced by the court to use the services of the attorney who they fired for fraud and to settle a multi-million dollar lawsuit for an amount, if prior position of the Defendants is any guide, lower than the deductible in Defendants' liability insurance policy.

By the way, since the Defendants were settling for the amount they had to pay out of pocket anyway (lower than the $50,000 deductible under the Chenango County liability insurance policy that I obtained through FOIL recently), and since they were settling a case which was alleging intentional misconduct which is not allowed to be covered by insurance under New York law, settlements in the case could not be obtained without direct authorization of parties.

Yet, at all settlement conferences after the court - allegedly - suspended me (there is no public order of suspension available on the court required personal appearances only of the three plaintiffs, for whom appearance in Syracuse from Chenango County where they live, was a financial burden, and is a huge personal burden for one of the Plaintiffs who is a wheelchair-bound severely disabled 89-year-old woman - but not of defendants.

No appearances of the Defendants at such conferences was required by the court, so it is apparent that the court was in collusion with the Defendants to coerce Plaintiffs into a settlement.

Actually, in the pleading I belatedly received from the Plaintiffs then-fired attorney Woodruff Carroll on June 9, 2016 (while my response to that pleading was due in court on June 6, 2016), Carroll admits that it was the magistrate (now former magistrate who nevertheless continues to "serve" as magistrate) David Peebles who "urged" parties to settle.

So, the court did not want to try the case, possibly in collusion with the defendants, and, since I was directed by the plaintiffs to try the case, I was suspended through a secret order, stripped of my legal fee for 3.5 years of litigation, the court refused to allow Plaintiffs to even fire their own counsel for fraud, and the court openly put pressure upon three indigent civil rights plaintiffs to forego the jury trial that they wanted (and could receive a multi-million dollar verdict) and agree to a settlement lower than the $50,000 deductible in Defendants' insurance policy.

Misconduct against the indigent plaintiffs in the Argro case is just one aspect of the saga that is currently unfolding.

Other serious aspects are:

  • manipulating the docket with claims that certain entries were made before they were actually made;
  • delays in docket entries of filings that arrived by regular mail;
  • shameless admitted ex parte communications as to me, including ex parte motions, ex parte orders and ex parte hearings; and
  • sealing the transcripts of such ex parte hearings against me.

Yesterday night, after 5 p.m., I downloaded the docket report of the Argro case which I last downloaded on June 8, 2016 - and as of June 8, 2016 it did not contain any information after June 3, 2016, the last entry as of June 8, 2016 was of June 2, 2016.

On June 10, 2016, there appeared several entries in the docket, including a belated acknowledgement that I filed (and the court received, I have a delivery confirmation) an Affirmation in Reply declaring a default on my motion to vacate, recuse and for sanctions.

The docket also contains an interesting entry - without a docket number - as to what has allegedly transpired in court on June 3, 2016, an appearance not noticed to me.

On June 3, 2016 the court did the following:

1) reviewed an ex parte (as to me) motion to withdraw of Plaintiffs attorney Woodruff Carroll who was fired on May 20, 2016 for fraud and for offering Plaintiffs $100,000 in exchange for a settlement and for filing a false affidavit against me;

2) reviewed an ex parte motion, Docket 124, for an anti-filing injunction and to strip me of a future opportunity to file for attorney fees against Defendants under 42 U.S.C. 1988(b) if Plaintiffs prevail in litigation.

The motion was ex parte on many levels.

The motion was never served upon me, which is confirmed in the certificate of service of Defendants' counsel Erin Donnelly who served - by e-mail - Plaintiffs' attorney Woodruff Carroll AND HERSELF, Docket 125.

The initial scheduling order, with deadlines to respond to the motion within 4 days of filing, over the Memorial day weekend, was never served upon me by the court.

The subsequent scheduling order of June 2, 2016, moving the review date of the ex parte motion to the next day, June 3, 2016, from the initial ex parte scheduling date of June 15, 2016, with personal appearances, was never served upon me.

I learnt about the ex parte scheduling order of June 2, 2016 (but not about the text entry of June 3, 2016 which did not appear in the docket until the end of this week) by downloading the docket report, at my own expense, from Pacer on June 4, 2016, after the hearing/oral argument on the ex parte motion already occurred.

Yesterday, after downloading the docket report, I learnt that 

  • the ex parte motion, Docket 124 asking for remedies against me by name;
  • which was never served upon me, Docket 125;
  • which was scheduled by an ex parte scheduling order on May 27, 2016 for a hearing on June 15, 2016 before Judge Norman Mordue, and
  • which was rescheduled on June 2, 2016 by another ex parte scheduling order to be heard with personal appearances of Plaintiffs and attorneys for Plaintiffs and Defendants, but not me, for the next day, June 3, 2016;
  • was actually heard without my presence or notice to me by David Peebles, a former magistrate whose term expired on May 21, 2016; and
  • the transcript of those ex parte communications was sealed by David Peebles.

That is not all that David Peebles did though.

He also issued yet another ex parte order manipulating the motion to recuse him, vacate the previous illegal order of the court stripping me of legal fees, and for sanctions against attorneys for Plaintiffs and Defendants for fraud.

Here is what David Peebles did as to the motion that was scheduled to be heard in front of Judge Mordue and not in front of David Peebles at all.

On May 13, 2016 I filed a motion to vacate, recuse and for sanctions against attorneys Woodruff Carroll and Erin Donnelly for fraud.

My motion, received by the court on 5/13/2016, was only entered on 5/17/2016, after I blogged about the court's manipulation of the docket.

The court issued a scheduling order on that motion - the only one that I received by regular mail from the court.

The scheduling order set the following deadlines:

  1. Response deadline for Plaintiffs and Defendants - 5/31/2016
  2. My reply to response 6/6/2016.
  3. Motion hearing set for 6/15/2016

Plaintiffs and Defendants defaulted on the deadline to oppose the motion on 5/31/2016.  The docket now shows some filings made on that date, but I received a filing from the Plaintiffs by regular mail only on June 8, 2016, 2 days after my response to that pleading was supposed to be already filed in New York (and I do not have a right to file by e-filing, so I have to do it by mail and add time for mailing it in).

And, I received nothing from the Defendants, so whatever the Defendants filed on May 31, 2016 (as the docket shows, I did not download the Defendants' filings), was never served upon me - kind of a "sewer service".

When a deadline to oppose a motion is missed, all factual issues are waived and parties who failed to oppose are deemed in default of the motion, which has to be granted to the moving party by default if the motion is meritorious.

There is no question that my motion is meritorious.  It is based on clear precedent, statutory law and indisputable evidence.

So, by my deadline, 6/6/2016, having received nothing from either of the parties, I filed an Affirmation in Reply and a Memorandum of Law declaring a default on the motion.

Yet, without notice to me, 3 days prior David Peebles (who pretends to be a magistrate while his term expired by May 21, 2016 and for whom a public order of reappointment was not published up to this day) forgave the default of both Plaintiffs and Defendants on the motion and gave Plaintiffs and Defendants, based on their ex parte request without notice to me, additional time to oppose my motion filed on May 13, 2016 - until June 17, 2016.

June 17, 2016 is 2 days after the motion hearing set for that motion for June 15, 2016.

No deadline was set for me to reply to that belated opposition, so I am not allowed to file a reply.

There is no explanation in the docket as to the reason for such a blatant violation of the court's own rules of motion practice in order to help parties survive the default on my motion and block me from replying to the parties new and belated opposition.

Local court rules, as well as Federal Procedure, does not allow pleadings beyond the reply.  Usually, non-moving party do not get the benefit of responding to a reply, because the reply is the last filed pleadings on a motion.

Here, David Peebles changed that, behind my back, at an ex parte in-person hearing of ex parte motions scheduled in an ex parte manner - and sealed the transcript containing the ex parte communications of the parties and counsel regarding rescheduling my motion, or discussions of the ex parte motion filed, but not served upon me by the Defendants.

This entire circus - including my secret suspension allegedly of November 18, 2016 (there is no public order of suspension) unfolded after I filed on November 16, 2016 a motion to recuse the court in another case, based on massive documentary evidence of the court's misconduct - and that motion is still unresolved,  but, as a result of that motion:

  • I am - secretly, allegedly - suspended;
  • I am removed from a case against social services I litigated since the summer of 2012 that was scheduled for trial as of, "coincidentally", November 13, 2015;
  • the court and the parties' counsel do not bother to serve me with motions or scheduling orders directly relating to my rights, hold in-person hearings regarding my rights behind my back without notice to me and seal contents of transcripts of such hearings, the misconduct is shameless and quite blatant, it is reflected in the docket, as if ex parte communications are now legitimate - at least as to me
I will continue to cover the story of the court's misconduct - I am holding my breath as to what the court will be deciding about me based on its ex parte communications on June 3, 2016.

Of course, such a decision will be blatantly illegal, but illegality did not stop NDNY court so far in regards to making decisions about me or my husband.

Stay tuned.

No comments:

Post a Comment