A rule of Judge Ferris Lebous: when caught red-handed in an ex parte communication - attack the challenger

In the case Neroni v Harlem in Delaware County Supreme Court, Index No. 2011-547, my husband has sued Richard Harlem, his law partners, his law firms and his Mokay clients for fraud - based on their inconsistent statements between two courts, Supreme and Surrogate in the probate proceedings of the decedent Andrew Mokay.

Of course, since then, the inconsistent statements have grown many times, but at the lawsuit was contained to these two sets.

The now running from the office he sought so much Judge Carl F. Becker dismissed that lawsuit at the pre-answer stage, with sanctions against my husband and I for frivolous conduct - specifically, for invasion of privacy of members of a conspiracy to defraud a court, where all members of the conspiracy were either attorneys, or public figures working for the court system - a sitting Supreme Court justice, his law clerk and his secretary (in the future, his wife).  

Names of these people were Robert Harlem (the judge and father of Richard Harlem, Robert Harlem was also admittedly the mastermind of the frivolous 8-year-long Mokay litigation that becomes unglued after the ex parte secret trial as we speak), Robert Harlem's court secretary (and future wife, now widow) Irene Mann/Harlem, Robert Harlem's law clerk Dennis Dineen who now is still employed by the State of New York and paid by the taxpayers.

The lawsuit referenced open public records of the Otsego County Surrogate's Court, showing that what Richard Harlem and his father did in the Mokay litigation, defrauding my husband and several courts, was not an accident or mistake and that they've done it before and escaped unscathed.

Judge Becker has never been known as a good theoretician in law.  Neither was his law clerk.

That, combined with his hatred of my husband and myself, resulted in a stunning decision where he punished both of us for referencing open public records as evidence against the Harlem defendants and the Mokay defendants.  

Apparently, in Becker's view, referencing open public records was somehow invasion of privacy of retired judge Harlem, his wife (not a party to the proceeding) and his former law clerk (not a party to the proceeding).

The sanctions also showed an interesting side of the court-created rule of frivolous conduct - that judges have authority to protect individuals who are not both parties in litigation and not parties to litigation and thus become advocates in the proceedings.

The sanctions were imposed at the stage of pre-answer motion to dismiss where all statements of my husband (plaintiff in that action) were PRESUMED TRUE, and when all pleadings were supposed to be reviewed in the light most favorable to my husband.

Decisions on a pre-answer motion to dismiss are not deemed decisions on the merits.

Yet, Judge Lebous treated Judge Becker's decision as a decision on the merit, refusing to vacate it despite the fact that Judge Becker clearly exceeded his authority by sanctioning us for allegedly stating something untrue - when the law presumed the statements to be true - while dismissing the case without reaching the merits in the pleadings.

At the time he made the determination, Becker was a participant in the fraud that was alleged in the Neroni v. Harlem and was clearly disqualified from making any rulings.

When a judge exceeds his authority, an appeal is not necessary, an order made in excess of authority can be addressed by a simple motion to address lack of jurisdiction to make certain decisions.

That motion was made.

That motion was rejected by Judge Lebous on the basis of "collateral estoppel", as if the decision of Judge Becker was on the merits.

And it is clear WHY Judge Lebous fought so vigorously and un-valiantly to have us punished and to stick attorney's fees for fraudsters against us:

Judge Lebous, same as Judge Becker, same as Judge Dowd, engaged in ex parte communications with Richard Harlem's representative before he made his decision.

Of course, Judge Lebous tried to deny it by stating that his "chambers" were authorized to discuss "scheduling" with all attorneys.

Yet, when Richard Harlem's attorney provided a billing statement to the court, the billing statement did not indicate that the 12-minute (!) discussion with Judge Lebous' "chambers" was of scheduling.

Seriously, an attorney does not need to discuss "scheduling" with the judge's "chambers" twice, and especially at the time when the court's jurisdiction abated due to the death of that attorney's client (Robert Harlem - client of David Cabaniss) and when David Cabaniss lost authority to represent that client.

Moreover, discussing anything with the judge's personnel is an equivalent of discussing it with the judge himself - yet, Judge Lebous happily made a distinction in his order, stressing the work "chambers".

That means, for purposes of prohibition on ex parte communications, in Judge Lebous' view, that he can allow his personnel (including the law clerk who authors his decisions) to engage in ex parte communications - and then claim that he is free and clear and did not engage in the ex parte communications HIMSELF.

Of course, if the ex parte communications occurred through an agent of a judge, that did not make it any less improper than as if the judge did it himself.

Richard Harlem's attorney "explained away" the 12-minute communication with Judge Lebous' "chambers" by stating that he allegedly discussed with Judge Lebous' "chambers" certain scheduling.

Yet, at the time of the discussion, Judge Lebous had no authority to do anything in the case because at that point, one of the parties to the action (Robert Harlem) died, and his attorney David Cabanis was no longer his attorney, he lost his authority to represent anybody in the action until the substitution of Robert Harlem's estate into the action.

At the time of the ex parte communication, no such substitution was made, so no scheduling discussions could be held.

Moreover, the billing statements, submitted with an affirmation that they were true and correct and that they were "business records", did not require additional explanation (being "business records"), and clearly and unambiguously indicated that what was discussed was NOT scheduling, but was the MERITS of the case - which is within the core of the prohibition of the ex parte communication between judges and attorneys.

Of course, Richard and Robert Harlem's attorney David Cabaniss was caught, through his own billing statements, in ex parte communications not only with Judge Lebous' "chambers" - twice - but also with Judge Becker's "chambers", he talked with Judge Becker's "chambers" for 12 minutes on the day before the motion hearing.

Of course, Richard Harlem and his "trial counsel" James Hartmann were caught since then in ex parte communications with Judge Dowd's law clerk - who is authoring Judge Dowd's decisions and making and communicating e-mail orders for Judge Dowd.

If ANYBODY ELSE would be caught, repeatedly, in ex parte communications with judges in related actions - that attorney would be sanctioned and disciplined.

Not Richard Harlem or attorneys who he hires - because Richard Harlem very obviously has a special status in court, not only as a judge's son, but also as the landlord of many years for the influential Republican Senator James Seward - whose attention is now catered by Becker's buddy and aspiring successor Porter Kirkwood.

Yet, we have seen lately several people who were deemed "unsinkable" and yet who took a dive toward "early retirement"/resignation (Becker) or federal criminal charges for corruption (Silver and Skelos) because, very apparently, New York state does not recognize corruption in the government as a crime and assigns the New York State Attorney General to represent the corrupt officials instead of investigating and prosecuting them.

The feds are currently vigorously investigating corruption in New York State government.

I turned into the Federal Trade Commission the actions of John Casey, the disciplinary prosecutor of my husband AND of Richard and Robert Harlems, who sold his prosecutorial discretion in exchange for the right to have Richard Harlem and Robert Harlem as paying clients of his law firm.

By endorsing that deal by ordering my husband - and myself - to reimburse Richard Harlem for the bribe he paid to my husband's disciplinary prosecutor, after TWO ex parte communications with Richard Harlem's attorney and John Casey's law partner David Cabaniss  - Judge Lebous became a part of that federal crime of theft of honest services of a disciplinary prosecutor.

John Casey, partner of David Cabaniss, and, through that partnership, attorney for Richard Harlem - at the same time John Casey was supposed to investigate and prosecute Richard Harlem as a disciplinary prosecutor, on my husband's and my own complaint.

But once again - with all the support from the former disciplinary prosecutor, with all the support from the law firm Hiscock & Barclay employing NY Senator Neil Breslin, with all the support of Richard Harlem's landlord NY Senator James Seward, relying upon support of a New York Senator may prove imprudent, in view of suddenly rising statistics of NY Senators being charged and indicted for corruption by the feds.

So,  if I were Richard Harlem, I would not be that secure in the feeling that he is "unsinkable" because he is backed up by James Seward and by the law firm of Senator Neil Breslin...

Being backed up by a New York Senator may prove feeble protection these days...

As to Judge Lebous - an appeal will show just how correct Judge Lebous was in deeming his "chambers" as being separate from himself for purposes of ex parte communications, and I wonder what would the feds and the NYS Commission for Judicial Conduct will say about confirmed ex parte communications between Judge Lebous' "chambers" (as well as Judge Beckers, and Judge Dowd's) with Richard Harlem and his hired hands.

On the other hand, at the background of Judges Becker, Lebous and Dowd who were caught in ex parte communications and retaliated for being caught through court cases,  Judge Christopher Cahill of the Ulster County Supreme Court who "only" threatened to turn me into the disciplinary committee for challenging him on the spot as soon as he completed an ex parte communication with the opposing counsel Dolores Felice (Delice) Seligman of Kingston, NY, but recused from the case - seems nearly as a paragon of virtue (even though the NYS Court Administration destroyed court camera footage of Judge Cahill's misconduct in order not to give it to me on a FOIL request).

Well, well, well...  Aren't we all in the judicial system feeling insecure when we are confronted with a clear EVIDENCE of misconduct...

Judge Lebous' decision in trying to make a "distinction without a difference" between ex parte communications with "chambers" vs. himself surely qualifies (in my opinion) as such insecurity.

Judge Lebous: the Neronis should pay the fraudsters' attorney fees for "invasion of privacy" of the late judge Robert Harlem and his co-conspirators in fraud, for referencing public records of that fraud in court papers

Judge Ferris Lebous continues the legacy of the soon-to-be-retired Judge Becker by imposing attorney's fees, in the amounts of thousands of dollars, with a severely restricted deadline for paying them, for "frivolous conduct" consisting of violation of privacy of public officials by exposing their misconduct by referencing public records (open court records and records about their position and salary, also publicly available) in court proceedings.

Neither Judge Lebous nor Judge Becker paid any attention to the fact that such conduct is perfectly legal.

As to both Judge Lebous and Judge Becker there are documents showing that there were ex parte communications with their "chambers" by Richard Harlem's attorney for lengthy time and without any explanation, before the decisions imposing sanctions and/or attorney's fees were made.

It is obvious that, for Judge Lebous, it does not matter that he is imposing sanctions upon us for lawful conduct - as long as he imposes sanctions upon us, because my husband exposed Judge Lebous' ex parte communications with Richard Harem's attorney, and we are thus enemies of Judge Lebous that must be punished no matter what.

I definitely refuse to be used as an ATM machine for Richard Harlem and his crew, especially because one of the Mokay clients of Richard Harlem has recently came clean and undid the whole Mokay litigation, after the ex parte secret bench trial, and exposed the Mokay litigation (based on which Lebous imposed the sanctions) for the major fraud that it is - with just one sworn statement, posted here.

As long as a judge violates the law without "impure motives", that's ok

Here is what the website of the New York State Administration says about retirement of attorneys from the practice of law:

So, full-time judges are deemed retired from the practice of law and may not practice law as a requirement of two provisions:

I. New York State Constitution:

• Article VI paragraph 20.b(4)

• b. A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4)  engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.
• Article VI paragraph 26 (j)(2) - temporary assignment of judges;
•              "(2) In addition to any temporary assignments

             to which a judge of a city court may be subject
             pursuant to paragraph one of this subdivision,
             such judge also may be temporarily assigned
             by the chief administrator of the courts to the
             county court, the family court or the district court
             within his or her county of residence or any
             adjoining county provided he or she is not
             permitted to practice law."

II.  22 NYCRR 118.1(g)

Yet, despite the above requirements of the law, judges give legal advice left and right to litigants, their attorneys, engage in secretly giving legal advice to friend and family members and, when caught red-handed, claim that they really did not do any harm, as Judge Robert Harlem said in his affidavit to the Otsego County Surrogate Nettie Scarzafawa (see my blog post the Blanding saga).

This is what the retired Judge Robert Harlem said in his affidavit to the Otsego County Surrogate's Court:

Apparently, it is not enough for the judge that he has violated his constitutional oath of office and the court rule pertaining to full-time judges deemed to be "retired" from the practice of law, 22 NYCRR 118.1(g), with all consequences of such retirement, that a retired attorney may not continue to practice for a fee.

The fee of Judge Harlem from Beatrice Blanding was tremendous see the will he has drafted with multiple bequest to himself listed in the Blanding saga post.

Yet, to Judge Harlem, violating the State Constitution, the court rule and his own oath of office to uphold the State Constitution is not bad enough, and he is trying to justify himself by his closeness to the decedent and by not having "impure motives".  Obviously, self-bequests of hundreds of thousands of dollars worth of property was not impure motives in the late Judge Harlem's eyes.

Judge Nettie Scarzafawa accepted that argument, did not sanction the retired judge and her own predecessor for unauthorized practice of law and defrauding the court, and, soon after that decision, stepped down from the bench in 2000, allegedly to take care of her elderly mother.

Retired Judge Nettie Jean Scarzafava was married to John Scarzafava until his death in 2014.  John Scarzafava was hired by Richard Harlem as a trial attorney in the Mokay action, a complete discqualification of which Richard Harlem knew. 

Richard Harlem also hired the law firm of my husband's disciplinary prosecutor (who was supposed to prosecute Richard Harlem and his father on my husband's complaint about their fraud).

John Scarzafava had the good grace to eventually refuse to represent the Mokay plaintiffs in the Mokay saga.  

John Casey's law firm, Hiscock & Barclay of Albany, NY, didn't have such good grace, and continue to claim attorney fees (which Judge Lebous, retaliating against exposure for his personnel's ex parte communications with Richard Harlem's attorney, granted).

John Casey and his law firm are exposed at this time to liability for antitrust violations, based on the U.S. Supreme Court's new pronouncement in North Carolina Board of Dental Examiners v. FTC in February of this year.  We will see how that lawsuit will proceed.

The interesting part about availability of discipline against judges practicing law is that attorney disciplinary committees refuse to prosecute them, claiming that any conduct committed by a judge during his or her judgeship is subject to only judicial discipline and not attorney discipline.

An even more interesting part is that retired judges who discharge judicial functions as judicial hearing officers are not subject to judicial discipline, because they are no longer sitting judges (and the New York State Commission for Judicial Conduct claims it does not have jurisdiction over their discipline) and are not disciplined by attorney disciplinary committees, because for attorney disciplinary committees such retired judges appointed as referees or judicial hearing officers are still "judges" and, as such, are beyond attorney discipline.

Attorney discipline and judicial discipline in New York are two fascinating subjects...

Now, try violating the law and then appearing in a court of law, admitting the violation, but claiming that you really did not have impure motives to violate the law.

See how far you will get with that argument if your are not a judge.

Of course, you should choose to run this experiment in your mind - if you are not a judge.  It may have dire consequences for you, because not only your lack of "impure motives" does not matter if you violated the law, and knowledge of the law that you violated is PRESUMED in EVERY PERSON - and, of course, it was presumed in a Supreme Court judge and Chief Administrative Judge of the 6th Administrative District, as Robert Harlem was.

So - once again, let's raise our glasses for the rule of law in the State of New York that exists in our aspirations - and nowhere else.

Judge Dowd spawns oral orders blocking my access to the Mokay exhibits

I wrote in this blog a couple of days ago about Judge Dowd's efforts, transmitted to me through Delaware County Supreme Court Clerk Kelly Sanfilippo, to block my access to trial exhibits received by the court on April 7, 2015.

I asked Kelly Sanfilippo to provide a written order blocking my access or sealing or temporarily sealing those exhibits, with papers upon which the order was granted.

Today I received a letter from Kelly Sanfilippo stating that there is no such written order, and so Ms.  Sanfilippo cannot provide me with a copy of the order.

I am not aware of a judge's authority to issue ORAL orders blocking a  party's attorney's access to exhibits that were already filed with the court and constitute a public record.

I am filing a Judiciary Law 255 request for access and will report on this blog as to the response by the Delaware County Supreme Court.

Stay tuned.

If you ain't done anything wrong, why hide it? NYS OCA stalls release of data on attorney discipline and attorney disciplinary committees

On April 22, 2015 I filed the following Freedom of Information Request with the New York State Office of Court administration (hereinafter NYS OCA):

On April 27, 2015 I received the following preliminary response from the NYS OCA:

Here is the ONLY record that I received from NYS OCA pursuant to this FOIL request:

While providing some interesting and sometimes revealing information as to the numbers of attorneys per county in New York State, NYS OCA did not release to me matching information as to attorney discipline per committee, or documents pertaining to appointment of members of attorney disciplinary committees, in other words, information that would have brought some light as to how these clandestine bodies of inquisition operate and who they target for discipline.

I have a belief, based on the data so far available to me that the committee members are hand-picked by the courts for reasons other than protection of consumers, and I have a reason to believe that such committees act not to protect consumers of legal services from bad attorneys, but to protect the market of legal services for themselves and their friends from competitors and to eliminate independent civil rights and criminal defense attorneys.

The stalling of information on this topic tends to prove the collective guilty conscience of the Court Administration and only confirms my beliefs.

In addition to the above sheet of paper with statistics, NYS OCA referred me to websites of attorney disciplinary committees which list names only of the current members of disciplinary committees (and disciplinary committees for the Appellate Division 2nd Judicial Department do not do even that).

Such websites do not list members of such committees dating back 10 years, nor do they provide on their websites orders of appointment of each member or staff attorney, nor do they provide on their websites documents supporting such appointments.

Once again, where an essential and meaningful piece of information is sought through a FOIL request, NYS OCA, the organization that is responsible for dispensing justice in the State of New York,  stalls information.

So, the tactic of the judicial system is:

•  to stall release of public records as to how the disciplinary committees are populated and how they operate;
• to preclude public access to disciplinary proceedings, even if it is directly provided by law and the attorney who is the subject of such proceedings wants it and requests it;
• to preclude public access to the files of disciplinary proceedings - even when it is directly provided by law, even after the conclusion of the disciplinary proceedings, as it happened in my husband's case, where I represent my husband in an ongoing civil rights lawsuit to gain access to his own disciplinary file - 4 years after my husband lost his license and after his file became open not only to him, but to anybody who wants to look at it, pursuant to Judiciary Law 90(10).

I filed this FOIL request parallel to my complaint/petition to the Federal Trade Commission requesting investigation of how disciplinary committees in New York operate.

Chief Judge Lippman created a statewide commission this year, his last year in office, to investigate, research and ensure uniformity, efficiency and fairness of attorney disciplinary proceedings in the State of New York (while populating the commission in a peculiar way by people not interested in pursuing the needs of the majority of actual and potential consumers of legal services).

The creation of the statewide commission oddly coincided in time with the litigation in the U.S. Supreme Court that has ended, surprisingly, in a victory against anti-competitive interests permeating licensing boards, stripping their members of immunity for liability in lawsuits for violation of federal antitrust law.

The statewide commission, as I see, was created not so much to help the consumers - if that would be the case, a fair cross-section of consumers of legal services would have been included into the commission and would have had a decisive vote in it - but for the embattled legal elite to get together and decide how to preserve the status quo in a world that quickly gravitates towards deregulation.

While the statewide commission tries to devise ways of preserving the status quo, and while the FTC investigates my complaint about New York disciplinary process as a tool to lock the market and preserve unfair conditions for consumers favoring market regulators who are at the same time politically connected providers of legal services, the NYS OCA tries to prevent release of information that would help the FTC investigation and undermine the efforts of the statewide commission on attorney discipline to pretend they are doing something opposite to what they are interested in doing.

How fitting.

Of course, I have filed an administrative appeal for the denial of my FOIL request.

I will publish the NYS OCA response to that appeal.

Stay tuned.

 



Judicial immunity in the times of seditious libel, and in the time of the 1st Amendment/freedom of information laws

Today I published a couple of blog posts about judicial immunity.

Each time I read about the Star Chamber public policy justifications - no joke, policy justifications for judicial immunity did come out of a Star Chamber case (see my blog posts describing how the doctrine of judicial immunity emerged, here and here) - and each time I re-read those same policy justifications re-appear in decisions of modern-time federal courts, I keep wondering if federal judges spawning these justifications actually read the U.S. Constitution that they are all sworn to uphold - or if they care what it says.

In the Star Chamber England, the King was a sovereign and had absolute power.

It was a crime to criticize the King or other members of the government - a crime called "seditious libel", punishable by life in prison.

The crime of seditious libel was established by the same infamous Star Chamber in a case De Libellis Famosis in 1606.

The crime was to criticize the sovereign (King), his heirs, or the established government structure and order and bring the sovereign and government in disrepute, or to advocate for changes in the government.

Seditious libel was deemed a crime by the Star Chamber because criticism of the government tended to undermine respect and confidence in governmental authority.

In a democratic society we have the following differences which should lead courts to reject the policy of establishing absolute judicial immunity, for any acts by a judge, no matter how wrong, done on the bench, for the ultimate goal of maintaining the established order and public respect to authority at all costs:

1. The sovereign in a democratic society and in the U.S. is not a monarch, and not a group of people, it is the ENTIRE PEOPLE of the country.  Of course, I was sanctioned by a federal court for quoting from New York statutory law and from the U.S. and the New York State Constitution that the sovereign in the United States are the People and not the government.  Apparently, federal judges do not and would not know this basic concept of the U.S. governance and democracy.

2. The First Amendment to the U.S. Constitution explicitly guarantees to people their right to criticize the government - which is actually a servant to the people, because people are the sovereign in the United States and in the sovereign states.   This concept still appears foreign to many, if not most judges, prosecutors and other law enforcement officials.

3. Moreover, misconduct of certain public officials which is documented must be disclosed to the public through different access to records statutes.  On the federal level it is the Freedom of Information Act.  On the level of New York State Law, it is Public Officers Law 87 (Freedom of Information Law) and Judiciary Law 255, for judicial records.

Thus, the public policy considerations preventing members of the public from getting access to and then criticizing, members of the government, are long obsolete and inapplicable in a democratic society governed by a Constitution.

Not to mention that, as I amply described in my previous two blog posts, the U.S. Supreme Court, a court of limited jurisdiction under the Article III of the U.S. Constitution, a court without power under the Constitution to create decisions that would be deemed to be Supreme Law of the land, conceded in a case Tower v Glover, 104 S. Ct. 2820, 2826 (1984)  that it has no authority to create immunities based on public policy considerations that would restrict civil rights litigation.

If that is true, the U.S. Supreme Court has no authority to create immunities based on common law out of an institution abolished in the 17th century for its lawlessness (The Star Chamber) which immunities were based on the Star Chamber policy considerations.

Yet, that is what the U.S. Supreme Court did, for judges, prosecutors, police officers and a zillion of other public officials and private parties appointed by public officials, making civil litigation a joke and, in many respects and in relation to many classes of public officials such as judges and prosecutors committing misconduct in office, a waste of time.

Courts do not have authority to give immunities to anyone - but for those belonging to their own class or being too close to that class for comfort?

In my previous blog post today I quoted the U.S. Supreme Court stating the following as to judicial doctrines of immunity to restrict civil rights litigation:

              "We do not have a license to establish immunities from
              Section 1983 actiona in the interests of what we judge to
              be sound public policy.   It is for Congress to determine
              whether Section 1983 litigation has become
              too burdensome to state or federal institutions and,
              if so, what remedial  action is appropriate",
              Tower v Glover, 104 S. Ct. 2820, 2826 (1984).

That bold pronouncement was made by the U.S. Supreme Court:

• 8 years after that same U.S. Supreme Court gave absolute immunity, even for malicious and corrupt acts, to prosecutors in Imbler v Pachtman, 424 U.S. 409 (1976) based on concepts of public policy, sending the nation into a half-a-century so far of rampant prosecutorial misconduct and wrongful convictions; and

• 6 years after that same U.S. Supreme Court gave absolute immunity for malicious and corrupt acts to judges, Stump v. Sparkman, 435 U.S. 349 (1978), once again, sending the nation into half-a-century of rampant and uncontrolled judicial misconduct, where state (and federal) officials turn a blind eye on judicial misconduct until it hits the fan with a vengeance, such as in cases where judges have sex with litigants in chambers, sell kids for cash into juvenile prisons or have penis pumps during criminal trials.

We have generations of judges and prosecutors that came to their offices in this country with knowledge and in reliance upon Imbler v Pachtman and Stump v Sparkman, and since the time when these cases were decided, federal courts have spawned cases that expanded prosecutorial immunity to civil proceedings and judicial immunity to non-judicial personnel.

Yet, Tower v Glover remains on the books of the U.S. Supreme Court, as the court's admission that the bacchanalia of judge-created immunities, deferences, abstentions, comities and other judge-created doctrines that currently blocks access of victims of prosecutorial and judicial misconduct from obtaining their legitimate remedies in civil rights litigation, is absolutely unlawful.

Moreover, a third case on immunities that was decided by the U.S. Supreme Court before its interesting admission in Tower v Glover in 1984, the case named  Ferri v Ackerman, 444 U.S. 193, 2014, 100 S.Ct. 402, 409 (1979),  was in stark contrast with the other two cases on absolute immunities - Imbler v Pachtman and Stump v Sparkman, cases that gave absolute immunity, even for malicious and corrupt acts, respectively, to prosecutors and judges.

In Ferri v Ackerman, the U.S. Supreme Court actually denied immunity to public defenders and assigned counsel in criminal litigation - guided, or rather, misguided by logic that defied its own logic in Imbler and in Stump.

Ferri v Ackerman indicated that, even though justice is supposed to be blind, it matters for the U.S. Supreme Court to whom it does - or does not - dispense immunities (while acknowledging that dispensing immunities is unlawful and usurpation of Congressional power in the first place - see Tower v Glover).

According to the logic of the U.S. Supreme Court, an assigned counsel and public defenders are not entitled to immunity while their opponents, the prosecutors, and the presiding judges, are, because of the following reasoning:

        "The fear that an unsuccessful defense of a criminal charge
        will lead to a malpractice claim does not conflict
        with performance of that function [representation
        in an assigned case - T.N.].  If anything, it provides
        the same incentive for appointed and retained counsel
        to perform that function competently".

Now, a civil rights lawsuit against a judge and prosecutor, public officials, would prevent them, as a matter of public policy (that the U.S. Supreme Court has no right to spawn - see Tower v. Glover), from doing their duties fearlessly and independently (Imbler v Pachtman, Stump v Sparkman).

But, a civil rights lawsuit against a public defender, also a public official, hired by and paid by the taxpayers, or an assigned counsel standing in the shoes of a public defender and also paid by taxpayers, will actually provide an incentive for such public official to do his work competently (Ferri v Ackerman)?

That means that doing judge's and prosecutor's work fearlessly and independently excludes the requirement of doing it competently or honestly because, due to immunity, judges and prosecutors lack incentives plus character to do their jobs competently, but have a lot of protection to do it corruptly, but fearlessly and independently in that corruption.

And, the doctrine of judicial immunity was stretched by courts to protect non-judicial personnel who, by any plausible logic, cannot possibly be engaged in JUDICIAL ACTS - for the simply reason that they ARE NOT JUDGES.


The law review article by Professor Margaret Z. Johns, "A Black Robe Is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil Rights Cases"  that I have interlinked above and that I quote below, features on its very first page the following examples of where absolute judicial immunity was granted for non-judicial acts of non-judicial workers:

1. to a "social worker who falsified the results of a plaintiff's evaluation and omitted positive information from the report", Hughes v. Long, 242 F.3d 121 (3d Cir. 2001);
2. to a "court-appointed commissioner charged with selling property following a divorce ... for defectively advertising the sale, illegally participating in the sale, and lying to the court",  Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980);
3. to a "court-appointed receiver who was investigating a judgment debtor's assets ... for breaking into the debtor's girlfriend's storage locker and removing an oil painting and family jewelry", Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995). Professor Johns cites numerous cases where judicial immunity is expanded to non-judicial personnel without logic or reason.

Yet, one case, cited by Professor Johns, stands out because of its reasoning.  In Schinner v Strathmann, 711 F.Supp 1143, 1143-44 (D.D.C. 1989) the court granted a court appointed psychiatrist judicial immunity because "defendant was acting in a judicial capacity when he interviewed the plaintiff to assist a judge in evaluating a plaintiff's competency".

So, whoever "assists a judge" in evaluating anything in litigation - is entitled to immunity following this reasoning.

But, a public defender is not entitled to immunity - because a public defender does not assist a judge? 

Because a judge does not see what public defender is doing as assisting the court in evaluating the evidence, but rather hindering the court in such evaluation? 

So, public defenders are being punished by lack of immunity for their role in providing a defense in criminal prosecutions while DA's offices (the usual breeding grounds of judges) are rewarded?  Isn't this a pre-judgment of all criminal cases?

Do you see any logic in any of this?

I don't.  But I do see self-serving minds at work.  Judges would not allow their own personnel or friends they appoint to serve as "court appointed evaluators", to be sued - so they create for their own an umbrella of protection.

Judges do care about prosecutors - where judges most likely place their children for ascension to their children's own judicial careers - so they give immunities to prosecutors.

Judges do not usually place their children in public defender's offices, such offices are not considered good stepping stones for judicial careers - so public defenders are deemed expendable and immunities are not dispensed to them.

Yet, whether the U.S. Supreme Court reasoning in cases on immunities does or does not have logic is irrelevant because the U.S. Supreme Court admitted in Tower v. Glover in 1984 that it does not have authority to make public policy judgments and to restrict civil rights litigation allowed by Congress.

Not to mention that, according to the Supremacy Clause of the U.S. Constitution, decisions of the U.S. Supreme Court do not have the status of the Supreme law of the land.

So why do federal courts treat them as if they are the Supreme law of the land, and why admittedly unlawfully created immunities - and deferences - and abstentions - and a zillion of other unlawful judge-created doctrines blocking civil rights litigation - continue to restrict access of civil rights litigants to court, prevent them from obtaining their legitimate remedies and be used as grounds for sanctions and attorney fees against victims of governmental misconduct in favor of perpetrators of such misconduct?

Because justice in this country is definitely not blind?

Because judges, in their overwhelming majority, are not spawned out of the public defender's office, but rather out of the prosecutor's office?

Because judges come to the bench not to do their jobs fairly, not to apply existing laws predictably and impartially, but to be in a position of power to make money and let their family and friends make money, to make law favoring themselves, their relatives, their friends, their employees, contributors to their election campaigns, contributors to their "educational" trips to resort locations, contributors to receptions with alcohol and gifts where they are invited - and wield power in favor of their own, leaving everybody else wondering where did the rule of law go?