"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.

Tuesday, February 28, 2017

Massachusetts to judges: it is unethical to reveal to the public the judge's true feelings and biases

Over the last three months, the Massachusets judicial ethics board have made history twice.

First, in December of 2016, it issued an "ethical" opinion for state judges advising them that they cannot really attend the so-called "Women's March" (which as in reality an anti-Trump march, the next day after the new President's inauguration) - because that will reveal the judge's political preferences.

So, even on the judge's free time (it was a Sunday), not wearing the black robe, the judge cannot reveal his or her true feelings.

Massachusetts judges are, thus, given an unmistakeable message - if you have biases, hide them.

Displaying your biases is unethical.

On the same day, December 9, 2016, Massachusetts ethical advisory board issued yet another astounding "ethical" opinion - in an intricate situation.

Massachusetts, unlike other states, apparently does not require that suspended or disbarred attorneys are prohibited to work in a law office as paralegals.

So, the judge, before coming to the bench, employed a disbarred attorney as a paralegal, at the direct permission of the Massachusetts Supreme Court.

Now the judge wanted, as the disbarred attorney's former employer, to testify for the attorney in his reinstatement proceedings voluntarily.

The advisory opinion said - "no", you can't do that.

A judge, in the opinion of the State of Massachusetts, can only testify at such a proceeding about his own experience as an employer BEFORE he came to the bench, if he is subpoenaed.

While the rationale of the opinion is that the judge, by voluntarily testifying for an attorney, is "lending the prestige of judicial office" to his testimony, of course, that's bullshit.

The judge actually wants to testify, he is actually friendly to the former employee, friendly to the point of agreeing to sacrifice his time to testify for him in his reinstatement proceedings.

There must be no difference for the reinstatement commission whether a witness is testifying voluntarily or on a subpoena - and whether he is a judge or not a judge.

But, it DOES matter in the future if the same attorney, once reinstated, appears in front of the same judge, and the issue of bias is raised because the judge volunteered to testify for the attorney in his reinstateme proceedings.

What the advisory opinion does is it protects the judge of future motions to recuse, pointing out a way of how to duck such a possible future motion by saying - oh, now, I did not really want to testify there, but it was outside of my control, I was subpoenaed.

Of course, that would be a lie, but - advisory opinions are clear.

Appearances matter.

Common sense or showing actual judicial biases to the public do not.

Wisconsin Commission of Judicial Conduct is to be subordinated to the court it is supposed to investigate

It has been reported that attempts are made to subordinate the Wisconsin Commission for Judicial Conduct to the Wisconsin Supreme Court.

Of course, that would be a major conflict of interest, because the bosses will be those who are to be investigated and prosecuted by the Commission.

I wonder whose bright head or heads is behind that wonderful idea.

I will continue to monitor the news about this attempt to let the fox guard the fox-hunter and will report it on the blog.

Stay tuned.

Monday, February 27, 2017

What is in common between college football players and attorneys

I was reading an article on unionization of NFL college football players by George Leef, and one phrase really struck me:

"In no other job does a worker's ability to remain on the job depend on a factor having nothing to do with his or her job performance".

That was about football players, and that was about academic performance of those same football players.

I would disagree that "ability to remain on the job depend[s] on a factor having nothing to do with his or her job performance" for college football players - or for any other college athletes.

After all, they are students who were admitted into college on an athletic scholarship, and the scholarship requires them to maintain a certain academic standing to remain students. 

If they drop out of college, not being able to maintain their academic standing, they drop out of the job.

Because, otherwise, if it is simply "a job", it should be a separate job, with hiring and firing process, not a "kind of a job" acquired through application for an athletic scholarship.

Apparently, student athletes are in college to get not only to play football, but also to receive college education, so the phrase about their remaining on the job depends on a factor (academic performance) unrelated to the actual performance on the job is somewhat stretched.

But, what drew my attention to that particular phrase was also that the "no other job" argument seems to be even more incorrect.

Lawyers are yet another such job. 

In this blessed profession, and especially in civil rights litigation, the better you are, the more your are eligible to be kicked out on some contrived disciplinary charge - and the better you dig for evidence of governmental misconduct - like, for example, attorney Christina Mire from Louisiana did - the more you are prone to be kicked out for actions "interfering with proper administration of justice".

Just another paradox of the profession.

And, by the way, while the ABA paid lip service to the fact that attorneys must be entitled to the same 1st Amendment rights as anybody else, and to a right to do their job criticizing a judge in motions to recuse - even though there are hints dropped that attorney Mire's criticism of a judge - who, as I described before in a blog:
  1. did not disclose a disqualifying conflict of interest;
  2. had the court stenographer fight and even sue Christine Mire in order not to give her minutes from a hearing where such conflict of interest was supposed to be, but was not disclosed;
  3. and, when the court did order disclosure of the minutes,
  4. the audio file was sent to a professional technician to "splice" (add, glue in) a piece of audio file, and the judge's disclosure of conflict of interest (that Christine Mire who was present at the hearing says was never mentioned by the judge) was put into the audio file and into the minutes.
That was major league fraud on behalf of the judge and everybody who was helping her.

The judge was supposed to be taken off the bench and criminally prosecuted for this.

Yet, the judge was elevated to an appellate court, and, instead, attorney Mire was suspended for a year - and made to pay for "costs" of the fabricated disciplinary proceedings against her, on the shameless complaint of that same judge.  The government made Christine Mire, as a measure of "protection of consumers" (because that's the declared reason for existence of attorney licensing in the first place) to pay around $30,000 for being right when the judge was wrong, exactly as Judge Andrew Napolitano describes in this book:

So, being kicked off the job FOR BEING RIGHT is, same as George Leef says about football players, a "factor having nothing to do with his or her job performance".

In fact, being kicked off the job for doing the job well is counter-intuitive.

And, in this case, illegal.

But who cares, right?

The ABA ran a lip-service piece about Christine Mire's case, ran it only after Christine Mire was reinstated as an attorney.

At the very same time as the ABA ran the piece on Christine Mire's fate, my certiorari on the very same subject - punishment of an attorney for making a motion to recuse a judge while the attorney was right, punishment that is being increasingly imposed on civil rights attorneys and is widening the justice gap in the U.S. - was pending with the U.S. Supreme Court.

Had the U.S. Supreme Court taken the case, it then would have had to decide in my favor - its own precedents were on my side.

But, the ABA did not consider it worth its time to support the certiorari, and the U.S. Supreme Court, including Justice Sonya Sotomayor whose personal statements about the justice gap I quoted in the certiorari petition, refused to review the petition without an explanation.

Instead, the ABA continues to treat wrongfully suspended and disbarred attorneys, suspended and disbarred for being right when the government is wrong as not worthy to be part of the ABA, and that applies to civil rights attorneys subject to persecution by courts within the U.S. and by foreign governments - in other words, the ABA distances from wrongful suspensions and disbarments in order not to put itself into a situation when it has to criticize judges, as a matter of cowardly and self-serving self-preservation.

Because, the ABA's president recently produced a formula in connection with President Trump's criticism of a wrong and corrupt decision of the 9th Circuit and of the underlying district court decision:

to criticize a judge = to attack the U.S. Constitution.

No, we cannot have that.

We cannot "attack the U.S. Constitution" by criticizing those who violate it.

Especially when it can hit us in the pocket - as it is in the case of the ABA.

So, as things are now, since the ABA did not consider it important to support a certiorari about the use of disciplinary proceedings to remove from the reach of consumers a civil rights attorney for doing their job and making a motion to recuse for an indigent client where the case so required - and since the U.S. Supreme Court similarly refused to uphold its own "mandatory" precedent - the country's litigants' rights to impartial judicial review will continue to be illusory and resting upon the unlikely chance that an attorney will sacrifice himself or herself in order to help their client.

I will quote from my certiorari petition:

"Litigants cannot seriously rely upon a federal right that can be secured only by an attorney willing to sacrifice his or her entire investment into his law education and career, and his own and his family's lifetime's well-being for one client".

But that, ladies and gentlemen, is now "the law" in the U.S.

And being good is a "factor" qualifying a lawyer in this country for being deprived of a right to work.

So, college football players are not the only ones whose "ability to remain on the job depends on a factor having nothing to do with his or her job performance".

For lawyers the "law" is even worse.

Here it is, once again:

Attorney #AndrewLavoottBluestone's "Attorney Malpractice" blog makes false claims about Neroni v Follender case

I have extensively covered the case Neroni v Follender on this blog and thought I knew everything about it - after all, I've litigated it.

Apparently, I didn't.

An attorney who specializes in legal malpractice, revealed on his blog that allegedly I was sued by Follender and lost before I "turned around and sued the plaintiffs".

Using a case you obviously did not read and do not have a clue what it was about, as an advertisement of your alleged abilities to represent people is kind of stupid.

Andrew Lavoot Bluestone, an attorney with 38 years of experience, should know better than to make claims about cases without reading them.

And, attorney #AndrewLavoottBluestone who, without reading the case, falsely alleged that:
  • I was sued, as a party, by Follender or his client before suing in Neroni v Follender; and that
  • I lost in that prior single lawsuit

Apparently, a couple of things were omitted - elementary due diligence and ability to read.

What is interesting is that this misrepresentation is made during the pendency of a criminal investigation into my criminal complaint against Jonathan Follender who tried to further enrich himself in this case by filing a false multi-thousand dollar judgement with the court - making me wonder if this misrepresentation was made on request from Follender or his friends.

Here is, once again, a short description of the controversy underlying Neroni v Follender case:

Underlying case No. 1
M & C Brothers, Inc. v. Torum
Delaware County Index No. 2007-280

Underlying Case No. 2
M & C Brothers, Inc. v. Torum
Delaware County
Index No. 2011-884

Nature of the case
Civil action for breach of contract/fraud

Nature of the case
Homestead petition

Case started
I was not admitted to the bar at the time the case started, was not an attorney or attorney of record in the case and was not a defendant in the action

Case started
Filed in 2011, a couple of weeks before Case No. 1 was concluded and jurisdiction in Case No. 2 was lost
I NEVER stepped into that case and was NEVER an attorney of record in that case

Parties and attorneys:

Parties and attorneys:

M & C Brothers, Inc.
Represented by Jonathan S. Follender

M & C Brothers, Inc.
Represented by Jonathan S. Follender

(an HGTV host and designer)

Represented by Gregory Kottmeier

In the underlying real estate transaction represented by former  Delaware County Attorney Richard Spinney, friend, colleague and former boss of 27 years of presiding judge Carl Becker


Brad Torum,
Samme Chittum
Represented by Frederick J. Neroni

In the underlying real estate transaction represented by Delaware County District Attorney John Hubbard, friend and former undisclosed law partner of presiding judge Carl Becker

Brad Torum,
Samme Chittum,
Pro Se (I am listed in the case as an attorney on the NYS Court website, because Follender claimed I am an attorney of record, for his convenience, while I never appeared in the case, there is no notice of appearance or any other evidence that I am attorney of record, and Respondents appeared pro seTHAT was the misrepresentation that was the underlying part of the lawsuit, that Follender was fraudulently claiming I abandoned my clients in a case where I was not even an attorney of record
I understand that everybody wants to distance away from this dirty case - dirty because:

  • Delaware County Attorney Richard Spinney and then ADA (and former law partner of a judge) John Hubbard were the real culprits in the action their clients were sued for;
  • The case was settled by the two TV celebrities, Tyler Harcott and Genevieve Gorder, because Follender was harassing them, and their attorney Gregory Kottmeier pointed out Follender's misconduct and misrepresentations in court pleadings, and in private to me;
  • The judgment was rendered in favor of incompetent and corrupt Follender in Case No. 1 by Eugene Peckham who later allowed his law firm to appear in the same case where he previously presided as a judge, so Peckham had no clue what judicial integrity is about - and Peckham granted the judgment to Follender, without any legal basis, only because he was also a judge in Ulster County;
  • I stepped into the case only after the judgment was already rendered, after I was admitted to the bar in 2009;
  • My motions to vacate were denied and I was sanctioned by Judge Becker who was trying hard to save his two friends, Richard Spinney and John Hubbard, from malpractice and disbarment for their actions;
  • then everybody was pretending that I was the culprit in everything that everybody else did - and Follender continued to badmouth me for allegedly abandoning my "clients" in Case No. 2 where I:
    • never appeared - and an attorney cannot be simply 'included' into a case as an attorney of record without being HIRED for that case by the clients and without APPEARING in that case - neither of which happened in Case No. 2.
I finally lost patience with Follender continuously lying about me to the court in Case No. 2 and asking to punish me for "abandoning my clients" where I was not even an attorney of record.

THAT is why I sued Follender.

The assigned Judge Tormey would not acknowledge that there were TWO underlying cases, not one.

Instead, he conflated TWO above cases into one and punished me without reading the record - simply because it was about me.

And, attorney and law professor Andrew Lavoott Bluestone, with all around star ratings, considered it possible in reporting on the case to simply jump on the bandwagon and continue misrepresentaions about the case further:

that now I WAS THE DEFENDANT in ONE case where Follender SUED ME, and where I, personally, as a party, lost - all of which was false, because:

1) I was never a defendant in any lawsuits filed by Follender;

2) There were 2 underlying court cases in Neroni v Follender, not one, in none of them I was a party, in the 1st one I was not a licensed attorney or attorney of record during the main part of litigation, I was an attorney only on post-judgment motions to vacate; in the 2nd underlying case I was NEITHER a party, NOR an attorney of record, I was only a victim of Follender's defamation and fraud upon the court which was exactly why I sued Follender.

All of the above, apparently, does not matter to the all-around star attorney Andrew Lavoot Bluestone,

who is also a law professor.

I bet, Professor Bluestone requires more diligence from his law students then he requires from himself.

One more important issue that Professor Bluestone "forgot" to mention - that in 3 Appellate Divisions (1st, 2nd and 4th Departments) I would have won the lawsuit in Neroni v Follender because Follender defaulted by serving his and his client's pre-answer motion to dismiss and all of his other pleadings himself, while being a party in the action.

The 3rd Department alone - as an "exception" for me and Follender (who is a judge in a town justice court in Ulster County while remaining a practicing attorney) - decided that disregarding that clear statute is a "mere irregularity" and not a jurisdictional defect.

Yet, in three quarters of New York courts service of a pre-answer motion to dismiss by a party, like Follender did in Neroni v Follender would have resulted in a DEFAULT AGAINST Follender and his client.

The 3rd Department though, in order to block vacating of my disciplinary decision (where Neroni v Follender was, without disclosure, considered because the trial judge sent his decision to the disciplinary court), disregarded clear statutory law by an attorney-judge against an attorney-critic of judges, as it does often in favor of politically connected parties, and considered disregarding clear statutory law that its 3 sister courts consider a jurisdictional defect - "a mere irregularity".

Of course, such a nuance was not important for Professor Bluestone who allegedly specializes in Judiciary Law 487 cases, to consider and report in his blog.

Yet, for consumers considering to hire Andrew Bluestone as their attorney, it is a clear warning. 

Consumers beware:  if Professor Bluestone can so misread a case where all underlying facts are reflected in multiple court records, does it with complete indifference to the truth of what is in the record, and invents things to make up for his lack of knowledge of the case - anybody should think twice before putting his own litigation case and livelihood into Andrew Bluestone's careless hands.

One more interesting thing: I've left a comment on Andrew Bluestone's blog, pointing out his misrepresentation.  It was never published - Andrew Bluestone, unlike me, carefully weeds out comments unfavorable to him.

I wonder, how many other people posted comments like mine, about misrepresenting their cases that Attorney Bluestone became so wary of public opinion as to hide from it behind moderation?

Saturday, February 25, 2017

The #GoldendoodleWonder, or political correctness as the new legal standard of review in disability cases

In the U.S., every person is guaranteed freedom from discrimination under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The U.S. Congress enacted multiple antidiscrimination statutes enforcing the Equal Protection Clause of the 14th Amendment.

Yet, in "deference" to the state governments in their ability to handle their responsibilities to enact and enforce laws protecting health and safety of its residents, the U.S. Supreme Court created various "levels of scrutiny" in review of discrimination cases.

Duties and rights of states in that relation are guaranteed by the 10th Amendment of the U.S. Constitution, which states are increasingly using in lawsuits against President Trump, for example, asserting their right "to be left alone" in such decisions - in all aspects but federal aid, then they use the 10th Amendment to force the federal government to "voluntarily" give money to states who defy federal laws claiming their exclusive authority to act for protection of health of safety of their residents under the 10th Amendment - great examples of that inconsistent invocation of the 10th Amendment by the state is:

  • claims of the states against President Trump asking the courts to recognize their 10th Amendment right to prevent the federal government from interfering with how states:

Yet, at the same time, the same state entities that can take care of health and safety of their residents so well,

  • sue the federal government (as the City of San Francisco did) for withholding voluntary federal aid for those same programs that the states assert is their exclusive right under the 10th Amendment to control and enforce - and, if so, to finance also;
  • condemn appointment of Betsy DeVos to the position of minister of the federal Department of Education that has no control whatsoever over schools - which are within the 10th Amendment right and duty for the states to control and finance; and
  • condemn President Trump for deferring to the states in deciding trangender bathroom issues for state schools - which is also within state 10th Amendment authority to do. 

Yet, at the same time as President Trump's enforcement of federal law in areas of his exclusive control (immigration policy), and his deference to the states in the states' area of exclusive control under the 10th Amendment (transgender bathroom policy in schools) meets with condemnation of the public - a condemnation not expressed with such vigor that similar or identical measures of President Obama or presidents before him - changes in the usual deference to the states by the U.S. Supreme Court and lower federal courts are not that prominent in the public's eye because court decisions are less discussed and less understood by the public.

Well, here enters the adorable Goldendoodle Wonder and the now 12-year-old girl #EhlenaFry whose parents sued her first school for refusal to allow her "service dog" upon the school premises because they already provided, as a reasonable accommodation to Ehlena Fry, a quadriplegic with cerebral palsy, a human aide. 

Wonder's appearance before the watchful eye of the U.S. Supreme Court, a court that only takes 70 cases out of 8,000 filed per year, so the cases the court takes must be really, really important
  • cancelled all previously existing precedents and legal standards of the U.S. Supreme Court on disability discrimination,
  • created a dangerous precedent for 
    • public safety in school,
    • rights of children other than those "served" by service dogs to be provided free and appropriate public education in a healthy environment,
    • school liability for injuries of disabled and non-disabled children and school employees;
    • a logistical nightmare for schools as to how now to accommodate not only disabled children, but also their "service animals", and
    • and an increase in taxpayer financing of schools
In return, the only "legal standards" that can be discerned through the forest of legalese in the "Goldendoodle Wonder" decision, heavy with block abbreviations and citations of mile-long statutes and administrative provisions which would prevent any average reader untrained in reading such cases from even trying to read this whole case, much less review it critically  - political correctness and the U.S. Supreme Court's sympathy - and those are not legal standards, of course.

So, let's look at the case which made the U.S. Supreme Court, the court that rejects the overwhelming majority of cases and usually uses its time more on trips and speeches than on actual work, pick this case for review while rejecting other cases, put the law on the back shelf and decide a case for a dog, a girl and her parents on the basis of sympathy and publicity alone.

I will start with the U.S. Supreme Court's usual standard of review in disability discrimination cases -  the so-called "rational basis" standard of review.

The rational basis of review was recently explained in a claimed immigration discrimination case - in the decision of federal judge Nathaniel Gorton, the only judge so far who was loyal to his oath of office and adhered to the U.S. Constitution, federal statutes and mandatory precedent among the PC galore over bashing Trump on any issue and sabotaging his actions at every turn.

Under the rational basis of review, if the court can find any "reasonably conceivable" justification for denial of a certain benefit, the claim of discrimination is dismissed.

Disability discrimination cases, once again, are reviewed, according the U.S. Supreme Court precedent, under rational basis scrutiny.

Let's apply the rational basis scrutiny test to the case of Ehlena Fry (who is now 12, so this frivolous case has been litigated in courts for 7 years, while there was no case to begin with),

her parents' Goldendoodle Wonder that the parents tried to foist upon the school as a "service animal" for their  5-year-old daughter who has cerebral palsy.  By the way, I also wonder, why the girl's name had to be carefully protected and taken out of the caption of the case when her full name and face was paraded for the media anyway.

First of all, according to the U.S. Supreme Court's recitation of facts in the case, the school DID provide a reasonable accommodation to the girl - the same as the school provided to all other disabled children in her situation - a HUMAN aide.

Once again, this was the school's actual reasoning to deny Ehlena Fry's parents desire to have a large dog accompany their daughter in school: that "the human aide provided as part of E.F.'s individualized education program rendered the dog superfluous".

So, there was an IEP (individualized education plan) which included provision of a human aide at all times for the girl.

Such accommodation was a reasonable accommodation required by American with Disabilities Act and by the Individuals with Disabilities Education Act.

Provision of such reasonable accommodations should have, in and of itself, rendered this whole 7-year litigation frivolous and should have had the court impose sanctions and attorney fees upon the girl's parents and attorneys involved in litigation - as courts liberally do in civil rights cases that they find to be without basis.

There is, simply put, NO CASE.

A reasonable accommodation was provided for the girl, which withstood rational basis review, case closed.

That another school DID allow the use of the "service dog" on the school grounds is the decision made by that school's principal, who agreed to incur the additional liability, logistical and health problems for the school and the school's children and personnel - that was the personal decision of the principal and not the law.

The U.S. Supreme Court did not ask a lot of pertinent questions which, whether they were or were not actually provided as a reason for the school's decision denying permission to use the service dog on the school premises, could nevertheless be considered by the court and used to dismiss the case with sanctions, as frivolous:

  1. is the human aide the same accommodation as provided to other children?  If it is, and "service dog" accommodation was not usual for that school to provide - which is obvious in this case - the rational basis review once again would prevail: the school did what it usually did for all children with similar disabilities, and there is no actionable equal protection or discrimination claim at all;
  2. is the service dog provided in addition or instead of human aide accommodation (and especially in the case of a "spastic quadriplegic cerebral palsy" making the dog insufficient as a sole provider of care)? - apparently, that was the case claimed because the dog supposedly was to pick up items from the floor, open doors, and help the girl maintain balance, including the transfer on and off the toilet seat - replacement of the human aide with the dog in carrying out such tasks presented:
    1. a safety issue for the child who could nevertheless fall off the toilet seat and get hurt, and
    2. a liability issue for the school that would be sued for the child's injury;
  3. would the presence of a dog on the school grounds be prohibited by the school's insurance policy? - if it was, that is a rational basis, and the case is, once again, closed;
  4. who was going to provide and actually give to the dog food, water and take the dog out to go to the bathroom? - if it was an extra duty for the school personnel, it was reasonable for the school to deny such an accommodation; 
  5. a dog may suffer from dehydration and become antsy and/or aggressive if he does not get water or if the dog was not fed that day, or not walked that day, another safety concern passing the rational basis review;
  6. where was the dog supposed to go to the bathroom - where other children play, in the schoolyard?
  7. are dogs allowed into the school cafeteria by public health laws? - if not, the case is closed.
  8. What is the guarantee that the dog will not:
    1. scare;
    2. bite;
    3. slobber upon;
    4. knock down causing injuries - it is a large dog;
    5. trigger an allergic reaction;
    6. distract from studies
other children or members of the school personnel?
9. Were the parents simply expecting the school personnel to take care of their dog for free, as an alternative to a pet boarding service?
10.  Was the dog allowed to babysit a disabled child under existing state laws?  If not, the dog could not be allowed to assist the child in the bathroom or anywhere else in the school without human supervision, and with human supervision the dog was unnecessary - the human could do what the dog was supposed to be doing, and a human would be doing it better than a dog.

Ii had a case where a school denied a right to hire an additional human aide to protect the child's safety in a situation where the school refused to watch out for the child and protect the child from other children bullying him.  The basis of denial was that allowing a human being who is not a school employee increases the school's liability and will not be allowed by the insurance carrier.  Here, we are talking about a dog, not a human being, with a lot more and  different additional liability issues than an additional human aide would provide.

If any of that happens, the school will incur enhanced liability - and that alone may provide a rational basis to refuse the use of a service dog while a human aide was available and provided.

So, the case was frivolous based on recited facts alone, and the U.S. Supreme Court failed to apply the rational basis review and properly affirm dismissal of the case by the two courts below, based on the U.S. Supreme Court's own precedent.

But, the U.S. .Supreme Court violated the rule of law and ruled in a way defying logic and common sense in two other areas.

The case hinged not only on issues going to the merit - a denial of what the parents claimed to be a reasonable accommodation, and what the school claimed to be "superfluous", and which was an unreasonable accommodation in view of provision of a human aide, and of health, safety, logistical and liability problems for the school created by presence of service dogs.

Once again, if the other school, the parents of other children, the school's liability carrier and the taxpayers financing the school's liability insurance and payouts in lawsuits against the school, and  voluntarily agreed to incur such problems and such liability, that does not mean that all schools, and all parents, and all insurance carriers, and all taxpayers must do it - it is not the requirement of the law.

The U.S. Supreme Court remanded the case for a factual determination and further development of the record - but, instead of remanding it to the district court for such purpose, remanded it to the lower appellate, Circuit court - which makes absolutely no sense, because the Circuit court does not have jurisdiction to develop the factual record of the case, it only has authority to rule on legal issues raised by the existing record.

The Circuit court is unable to decide through "legal analysis" of the record already in front of it, what was the "gravamen" of a case that was imperfectly pled - and the court below already decided it, by dismissing the case for failure to exhaust administrative remedies, thus implying that that "gravamen" of the claim was charging discrimination against the right for free and appropriate public education (FAPE).

If it was imperfectly pled, it should be dismissed with a leave to amend.

If the Circuit court is supposed to be able to decide that LEGAL issue upon EXISTING record, there was no need for a remand from the U.S. Supreme Court to decide that issue - the U.S. Supreme Court was equally authorized to do that.

Moreover, since the U.S. Supreme Court suggested that on remand the history of administrative proceedings should be delved into more deeply, that clearly means development of the factual record f the case - something that the Circuit court has no jurisdiction to do.

So, the U.S. Supreme Court, by its remand to the Circuit and the order as to what the Circuit court must do on that remand, created a conundrum for the Circuit court:
  • whether to disobey the order of what it must do on remand, because the U.S. Supreme Court usurped authority of the U.S. Congress to define jurisdiction of the Circuit court and ordered the Circuit Court to do what it cannot do within its jurisdiction; or
  • to follow the U.S. Supreme Court as a mandatory precedent, but then violate the statute enacted by the U.S. Congress under Article I of the U.S. Constitution defining jurisdiction of the Circuit Court.

The third issue is the procedural/substantive issue that the court remanded the case for.

First, the court could not even go into such details after having seen that a reasonable accommodation was already provided to the child in the form of a human aide, making the case meritless, no matter whether administrative remedies were or were not exhausted, or did or did not have to be exhausted.

Second, let's ask a no-brainer blunt question - however the complaint was "framed", pled, drafted, charged, written or whatever other words used to describe it:

  1. what is the purpose of parents sending their children to school other than getting the free and appropriate public education (FAPE); and
  2. if that is the only reason why children go to school, what else can a discrimination claim against the school be about in denial of "comfort accommodation" in educational process (where gender, sex or racial discrimination was not invoked) OTHER than tied in with educational process?

The parents actually DID charge that during educational process, the dog was not allowed to sit next to the girl, but was relegated to the back of the classroom during the brief time when the school allowed the dog in the school for a trial period (and it did not work).

If I would be a parent of a child who would go to school with Ehlena Fry, with all my lifetime love to dogs

(and I have never been without a dog in my household since early childhood to present time)

I would be concerned that my child (and 5-year-old are very distractable) is spending time at school hugging a dog and not learning, which is what the child is in school for.

If I would be a parent of a child who fears dogs, who has a life-threatening allergy triggered by dog hair - I would be concerned for my child's safety, mental and medical health and life. 

Once again - a human aide was provided by the school.

Under the rational basis review, that was enough under the current law and U.S. Supreme Court precedent.

And, sympathy to a disabled child, her dog, and their situation is not enough basis to cancel a whole body of precedents and to create a huge liability, public health and safety issue by creating such a dangerous precedent.

That said, I hope that the 6th Circuit, the court where the U.S. Supreme Court remanded the case, does the right thing and dismisses it again - as it did previously, as is proper to do in this case under the existing law.

We are talking the rule of law here, and, no matter how sympathetic to a disabled girl we may be, and how cute Wonder is, the law in this case is clear - the school provided all accommodations it could, and should not be subjected to a lawsuit, and especially one to force extra liability and public safety concerns upon it, as well as making taxpayers pony up money for non-existing damages in a case where reasonable accommodations were already provided.

Thursday, February 23, 2017

The interesting occupational licensing case of the first illegal alien admitted in California to practice law, attorney #SergioGarcia who tried to work illegally but refused to get it documented, after his admission to the bar

This is California attorney Sergio C. Garcia - and also an illegal alien.

Here is the sum and substance of attorney licensing proceedings in California.
  1. Sergio C. Garcia applied while illegal alien, no DACA exemption
  2. California character committee supported, but for status, turned over to the court - check
  3. Obama administration - U.S. DOJ Loretta Lynch - opposed giving a license because of non-compliance with federal statutory law 8 USC 1601, California did not legislatively opt out
  4. California legislatively opted out - check if just for attorne
  5. Obama/DOJ still opposed - there is no point to give a professional license when the federal government did not give a work authorization
  6. the license was still given, but attorney Garcia cannot work as an illegal alien without work authorization
  7. Taxpayer money wasted on:
    1. character committee
    2. US DOJ opposition
    3. on California AG support of the petition
    4. Court work
    5. Legislative work - to result in a license given to an illegal alien who still cannot use it because he cannot work.

Here is the chronicle of this astounding waste of time and taxpayer money - the court docket of Sergio Garcia admission-to-the-bar court case in California:

There is even a brief by a center fighting for lesbian rights - even though Mr. Garcia appears to be very male.

Here is their claimed interest in the case:

So, the LGBT right groups want illegal immigrants who are LGBT to gain professional licenses IN ORDER TO WORK - even if that is prohibited to them as illegal aliens without work authorization by federal law.

And California taxpayers had no other urgent uses for their money - like, for example, mending their dam that nearly broke drowning thousands upon thousands of people - but to have its highest court read and make a decision on this nonsense.

Mr. Garcia was represented in these proceedings by a large 800-attorney law firm out of New York City, Wilson Elser, a "professional liability" and "product liability" law firm - and I am wondering, what was their professional interest in promoting this case?

By the way, one of the filers of an amicus curiae brief is the other "trailblazer" illegal alien attorney Cesar Vargas from New York - here is a preliminary blog about his and his "coalition"'s background, and I will run a separate blog, in detail, about how it happened that Cesar Vargas was admitted to the bar.

The decision of California Supreme Court allowing Sergio Garcia to practice law came in January of 2014.

In the same "early 2014" Garcia, reportedly, was invited as a "speaker" and "role model" for students (as many other schools have done, likely as a paid speaker with all expenses paid - and I will FOIL schools who did invite him for any benefits they may have provided to him) by a private college preparatory school in San Antonio Texas.

Here is a W-9 form.

And you know why signing of that W-9 form was even necessary?

Because Garcia, knowing that he has no right to work in the U.S. - that's what the Obama administration's brief in his attorney admission proceedings explained to him in minute details, in addition to him being an attorney and having to know the law applicable to at least himself - ASKED to be paid for his speech, as an "independent contractor", so his speeches all around the country likely WERE cases of work in violation of federal law - which must trigger his deportation AND disbarment, but yet did not.

Talking about competence, honesty and integrity of attorney Sergio Garcia.

And talking about honesty and integrity of other colleges and institutions inviting Garcia - once again, I will FOIL all of those colleges for W-9, W-8ECI and W-8BEN forms signed by Garcia.

Additionally, attorney Garcia reportedly announced that he is opening a law office in Chico, California, and is planning to open another law office in Los Angeles, California.

And, California's other city, San-Francisco, fights with President Trump in a lawsuit where it asserts that, while it has a 10th Amendment right to defy federal government and harbor illegal aliens (that's a federal felony) in violation of federal criminal law, President Trump does not have a right to withhold discretionary (voluntary) federal aid to such cities, because that will be, too, a violation of the 10th Amendment.

With so many intellectuals living in California - they still created an abominable mess when they mixed illegal immigration and politics, and especially when they added to that mixture professional licensing, like with attorney Sergio Garcia.

By the way, when interviewed in 2016, attorney Sergio Gracia quoted his "former undocumented status", said that his green card application is still "pending" - but that he is "hiring people" to work for his law firm, meaning that Sergio Garcia may be avoiding accusations of illegal work by hiring others to do work in his law firm, while sharing in their profits.

I am sending a FOIA request as to the true immigration status and work authorization of Sergio Garcia and will report about it on this blog.