Should these two judges be taken off the bench for using courts as their own fiefdom to settle personal scores, even if it means misrepresenting the record and misapplying the law?

Intellectual dishonesty is a polite term which is used when judges arrive at decisions which are not warranted by the record, or misstate/misrepresent the record. 

Now, when an attorney does something like that, he will be sanctioned - by the judge.

When a judge is doing it, the Commission on Judicial Conduct takes a position that anything the judge did in litigation must be reviewed on appeal only, and there is no violation of discipline for the judge in misrepresentation of the record.

I am not satisfied with such an answer.

When the judge looks at a sheep and says he sees an elephant, the judge should check out his glasses, his medications or go see a doctor.

Yet, that's what happens in court, and appellate division, astonishingly, affirms.

Name of judge and case name	What the judge said in his ruling	The truth
Carl F. Becker Shields v. Carbone, Delaware County Supreme Court, Index No. 2009-440	·        That I was an attorney at the time administrative proceedings regarding a pond on my husband’s property were held ·        That I made a motion to recuse in those proceedings ·        That I was fined by the DEC Commissioner in those proceedings ·        That my motion to recuse was part of my pattern to make such motions	·        I was admitted to the bar in 2009, the proceedings were held in 2006-2008 ·        I did not make such a motion, I was not allowed to intervene and be a party in that proceeding ·        I was not fined, I was not even allowed to be a party ·        For obvious reasons, that was not true, since I was not a party, not an attorney for a party, was not allowed to participate and did not make the motion
James C. Tormey Neroni v. Follender, Delaware County Index No. 2013-331	·        That there was a case (singular) M & C Brothers, Inc. v. Torum which was the basis of my lawsuit ·        That I failed to state a cause of action for fraud upon the court and did not plead it with specificity when I said that Attorney Follender defrauded the court by consistently, on record, claiming that I am the attorney of record in Torum II when I wasn’t (coincidentally, also a judge in the Town of Denning, Ulster County, Judge Tormey “happens” to keep being assigned as a judge of choice to preside over cases where judges are parties to an action, whether they are sued as judges or not)	·        There were two cases by such short name, with two different Index No., filed at different times, one where I was an attorney of record and one where I wasn’t ·        Naturally, when the judge refused to see two different cases with two different numbers, different parties, different attorneys of record, different filing dates, different procedural history – I doubt that even a good shrink will help

As an illustration, this is a piece from Judge Becker's decision against me in Shields v. Carbone, Delaware County Index No. 2009-440, dated August 12, 2011 where he clearly states that I participated in DEC proceedings as an attorney, made an improper motion to recuse, was fined $10,000 by the DEC Commissioner and was ordered to conduct remediation on my property.

This is a picture from the New York State court administration website showing that I was admitted to the bar in 2009 (I updated this blog on May 25, 2014).

At the time Judge Becker made his decision in Shields v. Carbone, on August 12, 2011, he had in front of him a motion for a summary judgment in the DEC proceedings he is referring to in Shields v. Carbone.

He made a decision in these proceedings in October of 2011.

These are portions of that decision where Judge Becker shows knowledge that the DEC administrative proceedings occurred before 2009 when I was admitted to the bar:

Moreover, Judge Becker also reflects in his decision that he knew from the record that the only motion I made there is to intervene and vacate the decision on liability for failure to include me as a necessary party, not a motion to recuse, and that the motion was denied, I was not a party to the proceedings and could not, thus be sanctioned, ordered to pay a fine or ordered to do anything with the property:

Yet, having that record in front of him, he says the opposite in Shields v. Carbone:

And, having deciding the DEC case without imposing any sanctions on me for my alleged motion to recuse, without even mentioning such a motion (because it was never made), without affirming any alleged fines against me or any alleged orders of remediation against me (which were non-existent), Judge Becker never went back to Shields v. Carbone, never acknowledged his mistake and never vacated his decision sua sponte.

Instead, he sent his decision to the disciplinary commission, misrepresentations of the record and all.

This is what I call intellectual dishonesty - or dishonesty any way you look at it.

When the Appellate Division affirmed Judge Becker's sanctions against me, while ignoring his misrepresentation of the record of the DEC proceeding, the transcript about his ex parte communication between Judge Becker and the Delaware County Attorney Richard Spinney, and despite this obvious dishonesty AND stated that the judge had no bias against me, that was a separate act of intellectual, and any other, dishonesty.

Both of judges made their misstatements in order to be able to impose sanctions upon me, because otherwise there was nothing to impose them for.

Judge Carl F. Becker used my alleged actions as an attorney when I was not an attorney and was not doing anything in an administrative proceeding where I was not allowed to join, where I did not make the motion to recuse and was not fined by the DEC Commissioner, to justify sanctions against me.  The Appellate Division affirmed.

 Judge James C. Tormey sanctioned me, first, for making a motion to recuse him because Attorney Jonathan S. Follender of Arkville, New York had the audacity to ask Judge Tormey to punish me, among other things, for bringing a federal case Bracci v. Becker (dismissed without reaching the merits on jurisdictional grounds) where I asked to join Judge Tormey himself as a supplemental defendant (the case is currently on appeal in the 2nd Circuit).  Judge Tormey considered it appropriate for himself to preside over a case where he is asked to punish me for bringing the federal litigation against himself.  As I said, no shrinks can help with such behavior, only taking off the bench can.

Secondly, Judge Tormey sanctioned me because he allegedly read the record (which he did not, as the court sign-out sheet showed), saw one "Torum" case there while I was talking about two, one where I was attorney of record until August 10, 2011 and where subject matter jurisdiction of the court ended on that date with satisfaction of judgment, and another which was initially heard on August 12, 2011 where I did not represent anybody, which was derivative to Torum I and in which the court (Carl F. Becker, by the way) lost subject matter jurisdiction before the hearing, on August 10, 2011, with the same satisfaction of judgment.

That did not prevent Mr. Follender from trying to squeeze from the case as much counsel fees as he could, given favorable treatment by Carl F. Becker, and to badmouth me for frivolously not appearing in an action where no affidavit of service of the initial pleadings was filed, where I was not retained by any parties, where I did not file a notice of appearance, where I was not assigned by the court, and where subject matter jurisdiction of the court died two days before the initial hearing.

When a motion to renew or reargue was made, Judge Tormey rejected it because he allegedly did not see in it anything new, even though there was plenty of new evidence, and even though it was not based only on new evidence, but also asked to reargue because Judge Tormey imposed sanctions upon me based on his belief that there is only one Torum case while there were two.

Why such an effort?  Because Judge Tormey by that time already sent his sanctions to the disciplinary committee, obviously in a hope that his sanctions will be the last straw to disbar me, especially that he mentioned that an attorney was suspended for what I allegedly did by bringing a lawsuit for fraud, fraud upon the court and defamation against Mr. Follender.

Mr. Follender stated I was an attorney of record in Torum II, that I did not show up when I was supposed to, caused my clients' default and should be sanctioned.

Judge Becker believed it (he would have believed that I fly on a broom in order to sanction me, but anyway) and scheduled a frivolity proceeding, where I did not come, a year after the court lost SUBJECT MATTER jurisdiction.

Was it fraud? Of course, it was, both by Mr. Follender, his law firm and his client on whose behalf he was advancing his fraudulent arguments.

Was it defamation? Of course, it was, and it was in fact defamation per se, because Mr. Follender was not only making false claims against me, but false claims damaging my professional reputation, did it knowingly, and did it to gain legal fees from me that attach to a finding of frivolous conduct.

Was any immunity involved?  Of course not - the Torum II court where Mr. Follender was making his claims was without subject matter jurisdiction when the claims were made.

If it wasn't, my claim of fraud upon the court was valid, but, depending on finding or not finding jurisdiction, either fraud and defamation (if there was no subject matter jurisdiction) or fraud upon the court (if there was subject matter jurisdiction) were valid claims against Mr. Follender.

Did Judge Tormey care?

Of course not - all he cared was to exact personal vengeance against me, please the assigning judge Michael Coccoma (whom I pissed off by asking to sanction his wife in a private civil actions where his wife concealed the death of her client from a court and made a motion for a court-ordered deposition after the death of her client and after jurisdiction of the court abated), and save Attorney Follender (a brother-judge) from a lawsuit.

Judge Tormey's personal vengeance was to have me disbarred for daring to make a motion to include him as a supplemental defendant and exposing him on record in federal court and in Neroni v. Follender (motion to recuse) for his ex parte communication with the NYS Attorney General in the state law case Bracci v. Carl F. Becker which he dismissed after that ex parte communication (and NYS Court Administration claimed that the video recorder broke and there are no security tapes of that ex parte powwow for me to see), and for that reason he preferred not to correct his obvious, glaring, screaming mistake of claiming that there was just one underlying Torum case instead of two.

All of that is enough to take any single judge off the bench many times over.

Both Judges Becker and Tormey are still on the bench.

Does Judge Tormey have a history of not caring about the law and using it to achieve his own ends?

Yes, he does.

Why is he still on the bench?

Was he allowed to keep his robe after the political espionage scandal and after the federal lawsuit was settled for $600,000 taxpayer dollars on a condition that he now has to preside over cases against judges as a penance to the court system and make them go away?

Should Judge James C. Tormey be called instead Judge Tormey the Closer?  The hat fits remarkably.

Judge Tormey has "closed" three lawsuits against judges or people associated with judicial system in 2011-2013, and that is only where I was the plaintiff, who knows how many more of such cases Judge Tormey "closed".

My cases are:

1. Bracci v. Carl F. Becker
2. Neroni v. Stephen Zayas (member of attorney disciplinary committee who brought a fraudulent charge against me claiming that I failed to appear in a deposition in the same Torum I case at the time when I was not admitted to the bar)
3. Neroni v. Follender

That Judge Tormey could be disciplined and could lose his robe with or without a decision in the federal lawsuit, is clear from the fate of his co-defendant in the federal lawsuit Judge Bryan Hedges who was taken off the bench on an accusation of sexual misconduct which he committed when he was still a law student, 40 years before the claims were made, when all statutes of limitations already expired.

Records of the federal lawsuit against Judges Tormey and Hedges and records of the disciplinary proceeding against Judge Hedges that I personally reviewed and have copies in my possession, give a glimpse as to why Judge Hedges was thrown under the bus after all these years, and Judge Tormey was spared and was "only" ordered to serve as a "closer" for the judicial system.

According to the affidavit of plaintiff Bobette Morin in the federal action, Docket 143, Judge Tormey and his defendant Voninski asked her to engage in political espionage against a judge of Onondaga County Family Court who was running for the seat of a Supreme Court Justice on a democratic ticket.

When Ms. Morin refused to do that and retaliation followed, it was Judge Hedges who disclosed to her that Judge Tormey's assistant targeted her for destruction.

According to pleadings in Judge Hedges' disciplinary proceedings, Judge Hedges was turned in for discipline by Onondaga County District Attorney William Fitzpatrick after he refused to pay the alleged victim who was supposed to share that payment with the district attorney - it is in the pleadings (Judge Hedge's Respondent's Brief summarizing the evidence)!

This is as corrupt as it can go, and yet, the District Attorney still is in office, still has his license and is  "serving" on state court commissions and in associations shaping up state policy on sentencing and ethics in government.

My research on Westlaw showed that the district attorney William Fitzpatrick was not even censured, and, since he continues to act as a district attorney, he was not suspended or disbarred for his attempt for extortion from Judge Hedges which was reported, through sworn testimony, to the New York State Commission of Judicial Conduct.

On the opposite, in the Orwellian world that we live in, that same district attorney was later selected to serve on the State Committee for Ethics, was appointed in 2010 by Judge Lippman to the New York State Permanent Sentencing Commission where he still serves at this time and is now the Chair of the Ethics Committee of the State District Attorney's Association for the Fair & Ethical Administration of Justice.  Even though I am not a believer in a Supreme Being, all I can say is "God help New Yorkers" because nobody else will...

In December of 2013 Mr. Fitzpatrick co-chaired the NYS Commission for Ethics in Government and submitted a report on investigation of public corruption...   Mr. Fitzpatrick's request to Judge Hedges, through the alleged victim or her mother, to pay the alleged victim of his misconduct 40 years after the fact, when all statutes of limitations were over, in order for Mr. Fitzpatrick to share in the bounty, was not part of the report.

The interesting detail is that it has been reported in Morin's court papers that the district attorney William Fitzpatrick was Judge James C. Tormey's roommate.

It has been also reported in the press that Judge Tormey "did not want" to settle, and allegedly settled only because Judge Hedges did, and Judge Hedges gave an interview to newspapers indicating that Judge Tormey was mad at Judge Hedges settling because he said the lawsuit divided the Family Court personnel.  In fact, there is no such thing as a mandatory settlement in court, whether state or federal, and Judge Tormey did not have to settle simply because judge Hedges did, he could happily proceed to trial which is allegedly what he wanted.

The Commission for judicial conduct apparently turned a blind eye to all of those interesting details indicating that Judge Tormey and his law school buddy William Fitzpatrick who was not a party to the federal lawsuit, but who was mentioned in the court papers, held a huge grudge against Judge Hedges and were bent on destruction of Judge Hedges.

Judge Hedges stepped off the bench himself before brought in front of the Commission, and there was no need to hold a disciplinary proceeding against him.

What Judge Hedges was charged with was not behavior committed when he was on the bench or even when he was an attorney, and Judge Hedges legitimately questioned jurisdiction of the Commission, under the circumstances, to hold disciplinary proceedings against him.


The Commission's chief acknowledged that it was "uncommon" to pursue a judge for something he allegedly did 40 years ago, long before coming to the bench.  The Commission "removed" Judge Hedges from office and the New York State Court of Appeals upheld the "removal".   Yet, legally a person who already resigned from office, as Judge Hedges did before disciplinary proceedings started, and his resignation was accepted, already removed himself from that office as a matter of law and, legally, cannot be removed from the same office for the second time.

The removal decision was heralded as ensuring that Bryan Hedges will never sit on the bench again.  Bryan Hedges resigned in 2012.  He was admitted to the bar in 1973.

Before being admitted to the bar, people are required to have a college degree.   If a person goes to college immediately after high school, and goes to law school immediately after college, he or she will graduate at 25 and be admitted to the bar at 25-26 years of age.

Bryan Hedges was admitted to the bar in 1973, being 25 or 26 at that time.  He resigned in 2012, 39 years later, at that age of 64 or 65.  The mandatory age of retirement in New York is 70.   It would have been highly unlikely that Judge Hedges would ever run for office after he abruptly resigned, or, even if he did, that he would be elected.  Therefore, his disciplinary proceeding was very likely a witchhunt and a revenge on behalf of Judge Tormey and his group of supporters, including William Fitzpatrick, because Judge Hedges actually confirmed Judge Tormey's office's involvement in the witcchhunt against Bobette Morin.

Yet, while the disciplinary proceedings against Judge Hedges were claimed to be done due to the topic of alleged child molestation, the real reason was apparently that the Commission was used as a tool of vengeance by Judge Tormey and the Court Administration, because, once against, Judge Hedges by the time the disciplinary proceedings were held already stepped off the bench voluntarily.

In fact, there was evidence before the commission that the alleged molestation never occurred, and that the alleged victim simply changed her story to get a payoff from Judge Hedges (also from Judge Hedge's Respondent's Brief in the Commission).

The picture that appears out of all of this mess is not pretty at all.

Judge Hedges broke the "rule of silence", told Ms. Morin that she was targeted by Judge Tormey's assistant (and obviously by Judge Tormey, too) for destruction, and refused to cave in for extortion from the alleged victim, her mother and the district attorney.  Judge Hedges was also the most likely reason as to why the lawsuit in Morin v. Tormey had to be settled before trial, because Morin could testify on her personal knowledge about Judge Hedges' statement to her about Judge Tormey's and his assistant Voninski's plans.  It is already in the affidavit and on Pacer.

Given the wealth of information against Judge Tormey and the gravity of sworn accusations based on personal knowledge, there was nothing that could prevent the Commission for Judicial Conduct from prosecuting Judge Tormey.

There is no statute of limitations for judicial misconduct, and so Judge Tormey could and still can be pursued for what he did to Bobette Morin, if the Commission really and genuinely cares about its duties to the people of the State of New York to maintain the ranks of the state judiciary clean of the black sheep.

A federal court's decision is not required to prosecute a judge (as Judge Hedges' case clearly shows - statutes of limitations in both civil and criminal case were long gone, they are 5 years in the state of New York, plus 10 years for the infancy toll).

Yet, Judge Tormey was spared.

Why?

Nobody is going to willingly disclose as to why, but actions, as always, speak louder than words.

Judge Tormey's settlement in Morin v. Tormey in the U.S. District Court for the Northern District of New York was finalized on 9/26/2011, as the docket sheet of the case indicates.

The New York State Attorney General's office represented Judge Tormey in that action in 2011.

The letter of the private counsel requesting participation in the January 12, 2011 conference is highly " irregular", because that counsel is not the official attorney of record at that time.  At the time the letter is presented to the judge, the New York State Attorney General still represents Judge Tormey, and no other attorneys may step in without a court's decision granting them a motion to disqualify, which never happened.

So,  Judge Tormey rules in my case that the NYS AG is the sole decision maker as to whether he has a conflict of interest in representing a state actor, but when that same issue concerns himself, he shared my position, but never disclosed that to me.

Immediately after his settlement, Judge Tormey was assigned by Judges Coccoma and Mercure to the lawsuit Bracci v. Becker in state court, a case for retaliation and misconduct against a judge, a case for which Judge Tormey was uniquely disqualified due to his just finished federal litigation of 4.5 years.

On November 22, 2011, 2 months after his settlement in federal court, Judge Tormey presides over a motion to dismiss where NYS AG's office represents Judge Becker, sued in his individual capacity.

Judge Tormey does not disclose the recent federal litigation against him on the issue of retaliation to me as the attorney for the Plaintiffs, but states in a transcript, in response to my statement that I do not know yet whether I will pursue newly emerged claims in federal court that nobody knows better than him what a pain federal court is.

Judge Tormey was ethically obligated not to preside for 2 years after the end of his federal litigation over a case where NYS Attorney General appears in front of him, and to disclose representation of NYS AG's office, yet, preferred to not disclose the representation by the NYS AG's office in the year where he was presiding over my Bracci v. Becker case, which was a clear ground for disqualification.

Instead, Judge Tormey conducted a powwow with Judge Becker's attorney in the courthouse and dismissed the case against judge Becker, and then the NYS Court Administration claimed that the security tapes of the ex parte communication were unavailable because the video recorder allegedly got broken.

It is interesting to mention that in his decision dismissing the lawsuit against Judge Becker Judge Tormey rejected my argument that there was a conflict of interest in the NYS Attorney General representing Judge Becker, sued in his individual capacity, in Bracci v. Becker lawsuit, and at the same time appearing in front of him in a DEC proceeding.

Judge Tormey stated that it was the sole and absolute discretion of the New York State Attorney General to decide whether NYS AG has a conflict of interest in representing any state actor.  

Yet, Judge Tormey failed to disclose at that same time that he took the same position as I did in his own federal litigation that same year, when he hired a private counsel for himself, claimed conflict of interest of the New York State Attorney General, and claimed that he is entitled for New York State to pay that private counsel, even though he was sued for retaliation against an employee and for attempts to engage the employee in a political espionage, something which had nothing to do with his official duties!

After he dismissed my lawsuit against Judge Becker, without disclosing his disqualification, Judge Tormey dismissed two more lawsuits against people which are part of the judiciary. 

One lawsuit was against Stephen Zayas, sued by me for fraud upon the court when he was still a member of the Committee for Professional Conduct, NYS Supreme Court, Appellate Division 3rd Judicial Department, and since resigned amid investigation (allegedly, over "inaccurate" time sheets), the other was against attorney Jonathan S. Follender ("coincidentally" the Town of Deming Justice, Ulster County), also for fraud upon the court.

Thus, within 2 years of the settlement, Judge Tormey has "served" and paid back the New York judiciary by working as a "closer" on three cases, engaged in ex parte communication to save Judge Becker, misrepresented the record to have the attorney who sued Judge Becker disbarred - and was neither investigated nor disciplined for his political espionage, persecution of attorney Bobette Morin, or for his shenanigans in Bracci v. Becker or Neroni v. Follender cases.

Logical, isn't it?

Only the logic is scary and the whole story reeks to the high skies of corruption.

Judge Tormey's retaliation against me is a matter of public record.

Any reader of this blog can go to the Delaware County courthouse in the state of New York, retrieve cases I am talking about and which are referenced in Neroni v. Follender case and see the truth of what I am saying.

Judge Tormey had the record of two cases in front of him, said there is one and sanctioned me as if there was one.  And sent the sanctions immediately to the disciplinary committee.  And refused to recognize his mistake even when I made the motion to vacate, renew and reargue and caught him in the lies that he reviewed the record when he never even signed it out, and documentary evidence regarding that is also in my motion to vacate, renew and reargue.

What I do know that judges like Judge Tormey and Becker, who go to the length of misrepresentation of the record in front of them in order to set personal scores with attorneys who exposed their misconduct do not belong on the bench, and people who keep them there are complicit in their behavior and are as guilty of fraud as those judges are, whether they are or are not covered by immunity.

In her affidavit to the federal court (Docket 143) Ms. Morin stated under oath that she was threatened by the court administrator Mr. Dowling that she has "pissed the wrong person" and that Judge Tormey wants to "get rid of her". 

Now, both Judges Becker and Tormey, want to get rid of me - both for personal reasons, and the system obliges them.

I believe, a thorough investigation by whatever state or federal authorities who still remain faithful to the U.S. Constitution is in order to get out the hornet's nest of judges who do what they please to serve their own interests and eliminate whoever exposes their misconduct.

Of course, New York State Attorney General's office cannot engage in such an investigation because Judge Tormey is their former client, and that is exactly why New York State Attorney General's office should not be allowed to represent judges sued in their individual capacity for violating people's constitutional rights - because, among other things, it creates a conflict of interest and prevents the NYS AG's office from discharging its duties to investigate and root out corruption in the government.

But, it is my firm belief that judges like Tormey and Becker, who are ready to use/abuse all of their own and their powerful buddies' power in order to rain fire upon people who dared to expose their misconduct, should not be allowed close to the bench and should be taken off the bench a.s.a.p. before they did more damage to more people.

An investigation and disciplinary proceedings against these two judges are long overdue.

You are in default because I said so! About the law and THAH LAW

I've written today about the common misunderstanding by judges of a distinction between civil and criminal contempt that lead to de facto reinstatement of debtors prisons in New York State without any regard of inability of such a debtor to pay...


Do such judges think what they are doing when they are doing it?


Well, they should, and they are equipped both educationally and personnel-wise not to commit such flagrant constitutional violations.


Another commonly misunderstood concept is when a default occur.


I am aware of several judges having no clue, literally, as to when a default may or may not be granted.


By law, a default may happen only when there is proof on record of two things:


(1) that the action is meritorious;
(2) that the party against whom the default judgment is sought has been properly served, with competent evidence of such service on record, and failed to appear in the action within the statutory limit of time.


As far as I saw, judges skip both of these requirements, instead claiming, based only on oral arguments of proposing party/attorney that - if the opposing party did not show up at the hearing, that alone means a default.


One judge even invented a concept of a "frivolous" default, when there was no affidavit of service of the initial pleadings in the record.


Of course, for something to be frivolous, a person has to knowingly do it, and when there is no affidavit of service in the record, there is no proof the allegedly "defaulting" party knew his or her appearance was required by law, or else they would be in default.


Moreover, the rule of frivolous conduct, 22 NYCRR 130, sanctions only for making arguments which have no basis in law or fact or acting with an intent to maliciously harass or injure a party litigant.  Not appearing in court proceedings does not fit any of the elements of this definition.


Yet, for some judges, if they say something, true or not, lawful or not, based on a court rule, statute, precedent, Constitutional provision or not - it is THAH LAW. 


How many judges say "it is MY courtroom" and "MY rules in MY courtroom".


Some judges even participate in panels where attorneys are invited, for money and Continued Legal Education credit, to learn about the judges' whims in THEIR courtrooms.


When I hear such things I want to pinch myself to restore in myself the sense of reality.


Am I still in the United States of America?  Am I still in a country which claims itself to be the beacon of democracy and which is governed by the rule of law?


What is this "MY courtroom" and "MY rules" about?


Shouldn't the judge at least read the applicable law on defaults and review the record before making pronouncements of default, and especially, of frivolous defaults, whatever that means?


Those judges had 13 years of school, 4 years of college, 3 years of law school and at least 10 years of practicing law before they come to the bench.


If 30 years of education and practice do not teach those judges to read, and then to abide by what they have read, what will? 

Your Honor, she blogged about judges!!! Hang her, please, please, please!

I received recently printouts of my blogs made on color printer by a male attorney who was my opponent in litigation in one case.


The printout looked good, so thank you for your effort, Mr. Paul F. Tomkins of Binghamton, New York.


Mr. Tomkins asked the court not to give me adjournments due to my sick leave from April 22, 2014 to May 8, 2014 because of what I did in my blogs in the days PRECEDING April 22, 2014.  Mr. Tomkins even presented to the court one blog that was published on a Sunday.


Mr. Tomkins, thus, presumes that both he and the court can control what I do on Sundays, late at night and during my scarce leisure time.  Given also that Mr. Tomkins knows that I have a husband, a family and children.


I also somehow believe that Mr. Tomkins would not have dared to complain about me if I were going to a church on a Sunday, even if I was sick.  When I express my beliefs through blogging, Mr. Tomkins thinks it's appropriate to complain to the court.


Your Honor!  See!  She is blogging about judges!  Do not give her an adjournment despite her doctor-approved sick leave!  Or better yet - hang her, otherwise she may win against me.

New York Family Courts reinvented debtors prisons for indigent parents, whether they have a present ability to pay arrears in child support or not - what do NYS Chief Judge Lippman and Governor Cuomo have to say about that?

Even though the difference between a civil and a criminal contempt is pretty straightforward, courts, in its zeal to collect child support, continue to conduct civil contempt proceedings as if they are criminal.


The difference is this:  does the parent have a present ability to pay.


Of course, the law somehow presumes that the parent does have a present ability to pay and puts upon the parent the burden of proof that he/she does not have such a present ability to pay.


Existence of such a presumption flagrantly flies in the face of economic realities of poverty and unemployment in the State of New York.


Yet, such a presumption is relentlessly adhered to by the courts.


And even then, recently a case was reported to me that a judge was aware that the parent was indigent (well, the judge has even assigned counsel to that parent), that the parent was homeless, and that the parent has neither the job, nor savings, nor assets.


That is enough to prove present inability to pay.


The parent also presented to the judge an affidavit stating that she has no present ability to pay, which the judge refused to accept into evidence.


The judge did not hear testimony of the parent either.


Instead, the Family Court judge gave the homeless indigent parent 10 days to pay approximately 10 thousand dollars in arrears, and put her in jail for 3 months, determinate, when, no surprises here, the parent was unable to pony up such an amount within 10 days.

	Civil Contempt	Criminal Contempt
Purpose	Remedial (at least that is claimed) – to ensure that child support is paid for the benefit of the child	Punitive – to ensure punishment upon a criminal defendant for violation of the law
Who brings the proceeding	Parent who has physical custody – the civil creditor with a personal interest in the outcome	The local district attorney – a public prosecutor who has no interest in the outcome of the proceedings
Burden of proof	1.       The Petitioner only has to establish three facts:  that there was a valid order of support in place, that respondent parent did not comply with it and how much is owed;  willfulness is presumed 2.       The burden of proof then shifts to the respondent parent who must show his or her present inability to pay (where courts routinely and erroneously “impute” income that the respondent parent should have been earning instead of analyzing what he or she presently have in order to be able to pay the arrears)	The burden of proof, in both of its aspects, the burden of production and persuasion, is on the prosecution at all times of criminal litigation.
Procedure	1.       The petitioning parent files a petition for contempt of court before a support magistrate 2.       The support magistrate conducts a hearing, usually on the first appearance date, without any discovery or motions, as to whether the three facts: court order of support, non-payment and amount of arrears is determined 3.       Responding parent has no right to remain silent 4.       New York Family Courts allow appearances of petitioners by phone from outside of the state of New York 5.       None of the rules on the right are followed in Family Court 6.       After the magistrate makes a determination of willfulness, the case proceeds to a Family Court judge for a confirmation hearing 7.       Judges routinely perceive a confirmation hearing as an appearance without testimony and send parents to jail based on the results of a discussion between the court, the parents and their counsel, if any, without any testimony whatsoever 8.       In civil contempt proceedings, the court may order incarceration up to 6 months or until the parent pays the arrears	A criminal contempt of court is a misdemeanor, or, in other words, a crime in the state of New York.   A person charged with a crime in the state of New York has the following minimum rights:   1.       A legally sufficient accusatory instrument brought against him by the local County District Attorney; 2.       An arraignment in the local criminal court; 3.       An advice by the court that the defendant has a right to remain silent 4.       A right to attorney 5.       A right to discovery in accordance with Criminal Procedure Law 6.       A right to disclosure regarding the criminal defendant’s statements that the prosecution is planning to introduce at trial – a CPL 710.30 notice; 7.       Right to suppress evidence and confessions obtained in violation of statutory and constitutional law, and respective motion practice; 8.       The right to a jury trial where the complainant must testify under oath before the jury, a contempt may not be found on paper submissions 9.       At trial, criminal defendant has a right to remain silent, and his silence may not be held against him by the court or the jury, usually a special jury instruction is given to that effect; 10.   Failure of a witness to personally appear in court results in dismissal of criminal proceedings 11.   A criminal defendant has a constitutional right to confront witnesses against him at trial face-to-face, with such witnesses testifying under oath 12.   The right to a sentencing hearing
Disposition	·         Probation, ·         Payment by installments; ·         Civil judgment against the respondent parent which the petitioning parent has a right to enforce as other civil judgments are enforced; ·         Incarceration for up to 6 months or until the parent pays up the arrears, whichever is earlier	·         Conditional discharge; ·         Probation ·         Incarceration – paying arrears does not let the convicted person out of jail earlier
Status of incarcerated individual	Civil contemnor, not a convicted criminal, no criminal history is created with a civil finding of contempt of court, no Department of Corrections rules or regulations must be applicable, the civil contemnor should not be held together with individuals convicted for crimes in general population – I have reports that all of that is ignored and civil contemnors are considered in jails on par with individual convicted for crimes	Convicted criminal

The distinction between civil and criminal contempt is quite easy.


There is a saying that a civil contemnor holds the keys to his or her own jail cell in his or her own pocket.


That means that the civil contemnor does have the money, but does not want to pay the amount ordered to be paid by the court.


The purpose of incarceration in a civil contempt proceeding is to make the parent pay, not to punish him or her for non-payment.


If the civil contemnor/ parent is indigent and does not have the money to pay the arrears, as ordered by the court, incarceration cannot force such a parent to pay.    One cannot get blood from a stone.


Thus, by incarcerating indigent parents for a set period of time, the Family Court acts as a criminal court, without any authority to do so, denies such parents all procedural constitutional rights they are entitled to in such criminal proceedings, starting from the right to remain silent and ending with the right to confront witnesses and for a jury trial.


Given that judges in New York State Family Court are elected only after a minimum of 10 years of practice of law, and indigent parents such judges are ordering into jail are poor and usually uneducated or undereducated, I see no way how such incarcerations, while having clear evidence of the parent's present inability to pay, may be considered an honest judicial mistake.


I cannot state the names of a parent who I know suffered such a fate at the hands of a New York state Family Court  judge recently, for obvious reasons.  I  do know the name of both the parent and the judge who did ordered incarceration of an indigent parent, and, according to my research of appellate decisions, such rulings are a common occurrence - and one must bear in mind that in case of an indigent and incarcerated parent appeals are extremely difficult from logistical point of view alone, and that far from all of such cases are appealed.


Even one wrongful incarceration is one too many, and we do not know how many more are out there.


Will Judge Lippman and Governor Cuomo pay attention to this problem  or are they too busy to look into the fates of indigent incarcerated parents and to make sure such wrongful incarcerations do not happen?

On random drug testing for judges and health disclosures by judges. Do you know whether your judge was out of it when he pressed that big red button of your life?

The U.S. Constitution guarantees to everybody within the U.S. jurisdiction due process of law under its 14th Amendment.


That includes impartial adjudication by a competent court.


Being judged by individuals who do not have any physical or mental disabilities that prevent them from doing their job in adjudicating the matter is a due process right of every individual


Yet, under New York Constitution the only governmental body where one can raise such a problem is the New York State Commission of Judicial Conduct.


The New York State Constitution, Article VI paragraph 22 provides that the Commission may require the judge to retire if his mental or physical disability prevents him from performing his judicial duties.


First of all, if the Commission tosses your complaint, which is what it usually does, you do not have a right to even appeal that decision, because your role in the proceedings in the Commission is only of a "complainant", not of a bona fide party with rights (the so-called "standing").


Second, if you complain anywhere about the judge not being "together" on the bench, you need more than that to prove that he has a mental or physical disability.


He sleeps or nods, or is frequently distracted on the bench during the trial?


He talks gibberish on or off record in your presence?


His decisions clearly contradict what is in the record ?   That is, by the way, a polite way to say that the judge looks into a document saying A and states in the decision that it states B - and the appellate division happily affirms, and your further opportunities to appeal are virtually non-existent.


My experience with the NYS Commission for Judicial Conduct which, to me, is a glorified taxpayer funded shredder of complaints against the New York State Judiciary is - "we did not find that your complaint has merit, but thank you for telling us".


What if you pass a judge in the hallway and smell a whiff of alcohol on his breath?  During business day?


What if you know that the judge "drinks his lunch" on a regular basis?


Do you really believe that you or your attorney can stand up in court and say - your Honor, I believe you are drunk at this time and should not be presiding over my (my client's) proceeding?


Do you know how fast the judge, even if drunk or under the influence of drugs, will be able to pronounced the words "contempt of court" and lock you or your counsel up?


It has been reported in studies that 7 out of every 10 Americans are on at least one prescription medication and 5 out of every 10 are on two prescription medications.


That number may be even higher in the judiciary.


Why?


Common sense.
First, reports abound of overloaded court dockets and overburdened and overstressed judges.  Elementary rules of labor hygiene based on human physiology suggests that a human being can concentrate for only a certain period of time a day.  In other words, objectively, requiring a judge to concentrate for longer time than a human being is able to concentrate is a disservice both to the judge who can produce sub-standard decisions and to the litigant whose life may be (and often is) irreversibly and adversely changed by such sub-standard decisions.


I have failed to find much research, if at all, as to whether judicial caseloads fits physiological norms and rules of elementary labor hygiene.


In the case of judges I know and the dockets I know they are handling every day, that physiological limit is grossly overtaxed, and I believe, requiring a judge to concentrate and make life-changing decisions during one given day for longer than a human being is physiologically capable to do, is a violation of litigants' due process of law.




Second, the judiciary is an "old" profession.



The usual age of judges in New York, in my own personal experience, is well over 50 and, in fact, usually is over 60 years of age.


Recently, New Yorkers defeated a state constitutional amendment where judges were hoping to raise their mandatory retirement age to 80, claiming they are still fit to handle the existing unreasonable loads well into their ancient years.


Of course they are, if they are judging in name only and if their law interns/ externs/ clerks are handling their cases for them and instead of them, and if judges are needed only to rubber-stamp decisions made by judicial externs who are law students and by law clerks.


Yet, a knee joint can be replaced, and a heart valve can be replaced, but the dimming brain and the energy level withering with years cannot be replaced.


To show off that the judge can still perform his job, the judge can conceal his disability or resort to stimulating drugs to appear pert.




Yet, one cannot cheat nature and one does not have to conduct a study or be a great statistician to know that, with age, old diseases increase and new diseases are added up.




Look at least at the 10 symptoms of Alzheimer's reported by physicians and advocates for early diagnostics and intervention of Alzheimer's.




When you are dealing with a so-called "cranky judge" who makes gross errors of judgment in litigation and who is visually of an age when Alzheimer starts, what are your assurances that you are dealing with a temperament problem and not a symptom of a disease that affected judgment?


What if your judge is on antidepressants and is having hallucinations as one of the reported side effects of such drugs?


What if your judge is simply taking illegal drugs?


What if your judge is sipping alcohol there on the bench or in his chambers, and you will not be able to even sniff it because the judge may stay up on the bench, away from the public and not allow members of the public near him, and his employees will sure cover him up and not report him, in fear for their own jobs.


Unmanageable caseloads combined with advanced years of judicial officers and combined with virtually non-existent control of accountability of the judiciary plus existence of an abundance of hungry lawyers and law students eager to advance their career and work as "replacement judges" in positions of law clerks and judicial "externs" or 'interns", create a system where a judge can work well into the last stages of dementia as long as he keeps a vertical position and does not say anything that would be absolutely insane.  Everything else can be covered by law clerks.  Trials may be diverted into encouraged mediation and settlements.  Other judges may be assigned for trial terms...  Thus, the public may never know that a judge had a problem until it is too late to change consequences of such a judge's decisions.


By confession of a federal judge out of Nebraska in his own blog, 9 out of 10 times it is the judge's law clerk who closely reviews your pleadings and not the judge himself, and Judge Kopf even mocked attorneys for pretending they didn't know about it.


You might know about it, but you might also know that such a state of events is not right.  In the case of a federal judge, it is not the law clerk who was confirmed by Senate in a public hearing to review and decide cases.  


In the case of a judge in New York, it is not the law clerk who was elected by public vote into office to review and render decisions, and it is my firm belief that it is judicial misconduct for judges to delegate "close review" of cases to their law clerks, relegating their own duties to reading summaries of cases prepared for them by their law clerks and signing decisions that their law clerks submit for their signature. 


A New York State judge, an elected public official, you are submitting your pleadings for review and decision to that elected public official and not to his unelected law clerk who may be ineligible to make judicial decisions.


Yet, availability of such a law clerk making decisions for a judge who simply signs prevents recognition of the judge's health or substance abuse problems.


No docket congestion can justify this blatant delegation of duties to law clerks.


Yet, because of that delegation of duties you might not be able to prove, without additional information, that your judge has a mental or medical problem and is unable to handle your proceedings.


Are we entitled to such information?


I believe, we are.


But how to get it?


Various employers routinely and randomly drug-test their employees.


Drivers are regularly stopped and checked by law enforcement whether they are under the influence of alcohol or drugs while driving.


Same is with testing of pilots.


Same is with any other profession where public safety is at stake.


A judge presiding over, let's say, a child custody case, may order a parent to be drug-tested and may refuse to give the custody of a minor into the hands of a parent with a severe drug or alcohol problem.  In many states and in federal courts, death penalty is still on the books.  Wouldn't the public is entitled to know whether judges who preside over proceedings where people are condemned to death are alert enough to understand what they are doing?


A judge accepting a plea bargain must ask the criminal defendant to answer, under oath, whether he is under the influence of drugs or alcohol and whether he is able to understand what he is being offered and what kind of rights he is waiving.


Yet, that same judge may have a drug or alcohol problem of his own, or may have a physical or mental disability, or a complication from a prescription medication, and you are not even entitled to know what is in the judge's bloodstream when he takes away your property, liberty, custody of your child, etc.


How come?


I believe, judges should be randomly tested for drugs and alcohol, and not by their own personnel, but by rotating committees representing members of the community, and corruption and tips to the judges that a random check is coming should be vigorously prosecuted.


I believe, judges should undergo semi-annual checkups and, like jurors, should be subject to disclosure of their medical and mental health conditions and prescription medications. 


There should be no privacy given to judges on the issue of substance use and abuse and medical or mental health conditions and medications which may affect focus, perception, attention, temperament or judgment.   Such  privacy creates a public safety hazard.  A candidate running for judicial office, in my opinion, leaves his privacy when he puts up his candidacy for public vote, long before he dons the black robe.


Therefore, I appeal to the legislatures, state and federal, to introduce mandatory disclosure by judicial officers of health conditions, prescription medications and use and abuse of alcohol and drugs, as well as random testing for alcohol and drugs on the bench.

Trick questions about free legal representation for the high and mighty of the State of New York engaged in constitutional violations

Should taxpayers pay for legal representation of public officials when they are sued for violations of their constitutional oath of office?
Sounds like a dumb question, doesn't it?


Yet, it's the trick question # 1, and the current "correct" answer is - "yes, of course".  They should and they do, through their collective noses.


New York State Attorney General, as I wrote earlier in this blog, does represent public officials sued for violation of their constitutional oath of office, represents them against taxpayers, and claims he is doing it under New York Public Officers Law 17.


The way NYS AG and the court which allow such representation read the statute presupposes that constitutional violations by public officials are within their official duties.  It cannot be, because it is also a violation of their oath of office, but NYS AG's legal fiction so far prevailed.


Thus, where 80% to 86% of New Yorkers cannot afford legal representation in court, they are still mandated to pay for legal representation of the unworthy public servants that they saddled themselves with which public servants violated their oath of service. 


Does it make any sense where the poor cannot pay for their own legal services, but have to pay for the legal services of the wealthy?  That's the trick question # 2.


Yet, I have yet another, now, third trick question.


What if a public official is sued in his official capacity and in his individual capacity or in his capacity as a private individual?


Well, even then NYS AG's office invents ways to represent individuals who are, let's say, well-connected.  And the answer to this trick question # 3 is below.


Look at Ellen Coccoma and Michael Coccoma.


When my husband sued them, in a pro se federal action, he sued Ellen Coccoma as (1) former member of the attorney disciplinary committee and (2) as a private attorney who obtained an illegal order of deposition in a civil action.


As a disciplinary attorney under NYS AG theory that a public official can be represented at taxpayers' expense, such representation has the questionable legitimacy of being around for a long time, whether such use is constitutional or not.


Yet, no theory, not even Public Officers Law 17, supports representation by NYS AG, for free, of the wife of the Chief Administrative Judge of Upstate New York sued as a private attorney who represented paying clients in a private action.


But, apparently, Ellen Coccoma does not want to pay for legal representation, and her insurance carrier refused to cover her legal fees.

And - Ellen Coccoma and her husband Judge Michael V. Coccoma - considered it ethical and proper to accept from the NYS AG a gift of free legal representation at taxpayers' expense.


And, of course, the disciplinary committee found no fault with such an obvious misappropriation of publicly funded legal services.


By the way, NYS State Comptroler DiNapoli has been notified, but is in no hurry to take action on to make Ellen Coccoma disgorge to the state of New York the cost of her legal representation as a private party by the New York State Attorney General...


Do we have a rule of law and equality under the law in New York?  That's the trick question No. 4.   I don't recommend you to ask your judge about it when he denies you assigned counsel because you are "not eligible".  Remember, attorney Ellen Coccoma, wife of a judge, with a combined family income of at least $200,000.00 a year, is eligible for free legal representation by an army of lawyers in New York State Attorney's Office at your expense...


But who is she and who are you...