NYS Court Administration is playing game with a FOIL request - as usual

This is my FOIL request that I've sent on May 13, 2015.

The FOIL request clearly and unambiguously requests copies of orders of appointment of a RETIRED judge Robert Harlem, over the period of 1999 to 2012 (his death) as a:

• judicial hearing officer;
• referee, or
• in any other capacity

The request for records is, once again, clear and unambiguous.

Retired judges are appointed as judicial hearing officers, referees, arbiters etc.

This is the response of the NYS Court Administration that I received today as to my FOIL request specifically about retired Judge Robert Harlem:

In the portion of the letter dedicated to my FOIL request regarding orders of appointment of retired judge Robert Harlem, Assistant Deputy Counsel Shawn Kerby "advises me" that the NYS Court Administration has "no responsive records, as Justice Harlem retired, effective June 1, 1991".

I simply cannot believe that from "Justice Harlem" was not appointed in any capacity from 1999 to 2012 as a judicial hearing officer, referee, arbiter or the like capacity.

Moreover, that was exactly why I made the FOIL request, BECAUSE "justice Harlem" retired, and because retired justices are routinely appointed by the NYS Court Administration as referees in, let's say, foreclosure proceedings, or as judicial hearing officers in various courts.

It appears that the NYS OCA did not read the FOIL, or did not want to respond to it truthfully, and, because of it, declined to produce records of orders of appointment of a RETIRED judge because he was a - guess what - a retired judge.

Not good enough.

I am filing an appeal for constructive denial of the FOIL request.  Stay tuned as to the results.

Judicial immunity has been rendered illegal by congressional enactment - and courts pretend not to notice while protecting their own?

It has been bothering me, as a civil rights attorney, that civil rights litigation involving ongoing, clear and egregious constitutional violations by judges are given a runaround by courts.

Between my own litigation experience as a civil rights attorney and my husband's pro se litigation experience as to lawsuits against judges, even without any requests for money damages, but simply for declaratory and prospective injunctive relief, it appeared to me that in this country a remedy for a constitutional violation by a judge is simply unavailable.

The concept of judicial immunity is stretched by the courts to cover any conduct of the judge.

Moreover, whenever you ask for prospective injunctive relief for clearest and most egregious constitutional violations, defendant judges, at the very same time, raise two defenses (in addition to others):

1) the defense of absolute judicial immunity which courts now deem to be an absolute jurisdictional bar from suit for any purpose, including declaratory and injunctive relief;

2) statutory, under 42 U.S.C.  1982, as amended and stating that injunctive relief against a judge sued in his official capacity is prohibited "unless a declaratory decree was violated or declaratory relief was unavailable".

What is wrong with the picture of coexistence of absolute judicial immunity, the way it has been created and interpreted nowadays, and the text of the Civil Rights Act, as relatively recently amended by the U.S. Congress?

Everything is wrong with such a co-existence, and illegality of the concept and modern days' application of judicial immunity by state and federal courts becomes apparent from reading the text of the Civil Rights Act and applying to it elementary rules of statutory construction.

The full text of 42 U.S.C. 1983 as it currently exists is as follows:

42 U.S. Code § 1983 - Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The U.S. Supreme Court unlawfully invented absolute judicial immunity for malicious and corrupt acts on the bench in 1978  (Stump v Sparkman), despite its own claim that it has no authority to set public policy, and that it is a prerogative belonging only to the U.S. Congress:

  "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).

 (see also my blog about immunities and lack of authority of the U.S. Supreme Court to amend the Civil Rights Act at all, or as a matter of public policy).

The Civil Rights Act, 42 U.S.C. 1983 is mainly a statute allowing  private individuals, victims of unconstitutional conduct of public officials, to sue those officials (and governmental entities) mainly for money damages, because injunctions go only into the future and do not redress an injury that was already caused to the victim of unconstitutional conduct.

The Civil Rights Act, as amended by the U.S. Congress, in its current version, prohibits to sue a judicial officer for actions in his judicial capacity "unless a declaratory decree was violated or declaratory relief was unavailable".

As to statutory interpretation, the U.S. Supreme Court already stated that it has no authority to create law based on considerations of public policy - it is the prerogative of the U.S. Congress.

Second, the Civil Rights Act has been enacted under the 14th Amended as the enabling portion of the U.S. Constitution, and as such, must be liberally construed to promote its intended remedies.

Third, since the statute itself must be liberally construed to promote its intended goals and remedies, exceptions to the statute must be, instead, narrowly construed and, if strictly enumerated, those exceptions and no other, should be strictly adhered to.

I have been taught in law school that when a remedial statute has a list of enumerated exceptions, that list is exhaustive, and courts have no authority to legislate and amend the statute and extend its enumerated list of exceptions through "interpretation". 

Moreover, federal courts are courts of limited jurisdiction, and Article III of the U.S. Constitution dues not allow federal courts to legislate.  Not that the courts care to stick to their restricted authority (and oath of office to protect the U.S. Constitution) when liability of judges is involved.

Unlawful and self-serving amendment of the Civil Rights Act through interpretation is exactly what is happening in civil rights litigation across the country.

If the rules of statutory construction are applied to the text of the Civil Rights Act, quoted above, first, the fact that the U.S. Congress could, but did not include a prohibition on suing judges for money damages, such a prohibition does not exist. The list of statutory exceptions is in the statute and is exhaustive.

Second, the statutory language of 42 U.S.C. 1983 indicates that an action for declaratory relief against a judge is not prohibited in federal court either. 

Had the U.S. Congress contemplated a "jurisdictional bar" to all actions against judges, including actions for declaratory relief, the statute would not be even speaking about declaratory decrees or unavailability of declaratory relief as an option that triggers availability of injunctive relief against a judge.

Yet, all courts at this time are treating the unlawful judge created amendment to the Civil Rights Act, the absolute judicial immunity, as a "jurisdictional bar" to civil rights actions against judges as "established law" and sanction attorneys and litigants for as much as even trying to point out the obvious, that the doctrine of absolute judicial immunity is unconstitutional and unconstitutionally applied.

The only reason for such persistent, systematic and concerted unlawful behavior by the country's judiciary, as I see it, is because judges invented the concept of judicial immunity to protect themselves and members of their class - and do not care whether they are breaking the law or not, as long as they are protected by their law-breaking conduct.

And that situation, ladies and gentlemen, needs to be changed.

Trial rules of Judge Philip Rumsey. Will attorney Dolores Fogarty and Judge Philip Rumsey be disciplined for their egregious misconduct against a pro se party in litigation?

It was reported to me that Judge Philip Rumsey, of Cortland County Supreme Court (and any court Judge Rumsey is assigned to - the case described has been reported to me out of Chenango County) has the following novel rules in divorce proceedings that New York practitioners and party litigants may need to be aware of:

1) Judge Rumsey can schedule and conduct a trial where no trial note of issue has been filed or served by the party requesting the trial.   Dolores Fogarty, attorney for the Plaintiff, did not file a trial note of issue, but the trial on behalf of her client was still commenced by Judge Rumsey - without authority to do so;

2)  discovery in Judge Rumsey's court proceeds during the trial of divorce proceedings continue (even though New York law requires that the party filing the trial note of issue must state under oath that discovery has been completed at the time the trial note of issue is filed, and a trial MAY NOT commence without such a trial note of issue being filed and served);  Dolores Fogarty, filed (finally) the trial note of issue where she stated that discovery is complete - at the same time as she filed what is supposed to be a PRE-TRIAL motion to compel continuing discovery, and such a pre-trial motion to  compel MUST be, in accordance to court rules, preceded by several good faith efforts to ensure compliance with discovery, and evidence of such good faith efforts MUST be provided to the court - Ms. Fogarty did none of that;

3) Judge Rumsey allows some attorneys to replace Judge Rumsey in issuing judicial supboenas duces tecum for public records (which can be done as a matter of law only by a judge and only by motion on notice to all parties and to the custodian of the public records) - while continuing to claim that he is not biased in favor of such attorneys and their clients; see below the published copy of Ms. Fogarty's judicial subpoena duces tecum upon a public official signed by Ms. Fogarty alone - and, according to Mr. Shtrauch, endorsed by judge Rumsey;

4) Judge Rumsey denies interim relief (spousal maintenance, attorney fees, expert fees) to non-moneyed pro se indigent parties in divorce proceedings where the indigence of the non-moneyed party, as well as the lucrative employment of the moneyed party are obvious, and where expert valuation of assets is necessary, despite having ample proof of the parties' income through the multi-page notarized statements of net worth on file with the court.  Judge Rumsey did that to Mr. Shtrauch, even though New York statute requires to grant interim relief to non-monied spouses in divorce litigation as a matter of right.

5) Judge Rumsey allows oral motions for frivolous conduct by attorneys against pro se parties.  According to Mr. Shtrauch, Judge Rumsey allowed an oral motion for frivolous conduct against him made by Ms. Fogarty in court and gave him about 3 or 4 days to consider the "motion" - obviously, Mr. Shtrauch had to memorize Ms. Fogarty's "motion" to oppose it.  

6) Judge Rumsey decides motions and cross-motions "asynchronically" - motions by attorneys are granted immediately while Judge Rumsey do not have time to review and decide at the same time cross-motions by pro se parties claiming (well documented) attorney misconduct of opposing counsel.  Mr. Shtrauch indicated to me that Judge Rumsey granted Ms. Fogarty's motion to compel discovery during the trial, after Ms. Fogarty finally filed the note of issue stating in black and white that discovery was completed and even though Ms. Fogarty made no efforts to provide proof of her good faith efforts to ensure compliance with discovery - which means, if any non-compliance took place, Ms. Fogarty waived it and proceeded to trial.

7) Judge Rumsey never recuses himself as a point of principle when the previous judge recused on a motion from a party, no matter how warranted that recusal is.  According to Mr. Shtrauch, Judge Rumsey stated to him in court that he will not be "forced" out of the case the way Mr. Shtrauch "forced" Judge Dowd out of the case.

In fact, Judge Dowd voluntarily recused from the case after Mr. Shtrauch's motion pointing out that Judge Dowd's law clerk was communicating with his children without his knowledge or consent, without knowledge or consent of the attorney for the child and outside of any court settings.

8) Judge Rumsey considers as "factors" in divorce litigation evidence submitted in previously dismissed cases - if such evidence is against the party who asked for the judge's recusal.  According to Mr. Shtrauch, Judge Rumsey first was confused as to who Mr. Shtrauch was - a Plaintiff or a Defendant in litigation, because, event though Judge Rumsey was handling a trial where Mr. Shtrauch's spouse was the plaintiff and Mr. Shtrauch was the defendant, Judge Rumsey at the same time ruled (initially) that the previous discontinued divorce proceeding, where Mr. Shtrauch was the Plaintiff and Rebecca Shtrauch was the Defendant, were not discontinued correctly.

Judge Rumsey then ruled that the valuation of marital assets stopped accruing at the time the previous ("improperly" discontinued) divorce action started, and not when the present action started.

In the previous action, Rebecca Shtrauch did not file a counterclaim, and in the present action she is the Plaintiff and Mr. Shtrauch did file a counterclaim.

The discontinuance of the previous divorce action was recognized by the previously presiding judge Dowd - which did not deter Judge Rumsey from his ruling that, even though he is handling a trial for Rebecca Shtrauch as a plaintiff, he is considering that the previous case is still pending where Rebecca Shtrauch is a defendant - indicating that it is then Mr. Shtrauch who has a right during the trial to proceed first with his case, even though Judge Rumsey allowed Dolores Fogarty to proceed first.

When a motion to recuse Judge Rumsey and to dismiss the current action because, if the previous one is still legal, the current one may not be legal, Judge Rumsey relented and issued an order saying that, yes, the previous action was discontinued properly, but he will still consider orders issued in that discontinued and dismissed action as factors in litigation - for which, in my legal opinion, Judge Rumsey had no authority.


==
This case has been reported to me by Mr. Shtrauch, the victim of judicial misconduct and apparent misconduct by the attorney for the opposing counsel, Dolores Fogarty.  Mr. Shtrauch gave me full permission to write about misconduct of Judge Rumsey and attorney Fogarty in court and to publish documents he provided to me.

Here is the latest shenanigan of Ms. Fogarty against a pro se party - a subpoena duces tecum for public records which the law requires to be a JUDICIAL subpoena duces tecum - that is, such a subpoena may only be obtained this way, according to New York state law - Civil Practice Law and Rules 2307:

1. A written motion consisting of a proper notice of motion (or a signed Order to Show Cause) and of the supporting affidavit and other evidence upon which the records are sought, should be served upon all opposing parties and the custodian of the record (in this case, the court clerk);
2. That same motion must be filed with the court.
3. Service of the motion for a subpoena duces tecum on a public entity is set by statute.  A private attorney has no authority to sign such subpoenas, it is clear abuse of subpoena power and attorney misconduct.
4. All motions contesting such a subpoena, such as a motion to be served and for a protective order, have to be filed with the court and served upon the opposing party.

NONE of that happened.

Dolores Fogarty (an attorney representing a party who was so familiar with the previous judge's law clerk that her children were playing in the law clerk's house) simply substituted herself in place of the presiding judge and SIGNED what was mandated by law to be a JUDICIAL subpoena duces tecum.

Once again, attorney Fogarty is attempting to subpoena records of a public entity - here, the Public Defender's office, through a subpoena that could only be obtained, if New York state law was to be followed, through a motion for a subpoena duces tecum.

According to Mr. Shtrauch, Mr. Shtrauch's subpoenaed counsel from the previous stage of litigation (the custody stage, that concluded by that time), Mr. Zachary Wentworth, is a Facebook friend of the previous (recused) judge's law clerk.

Mr. Wentworth did file a motion to quash Ms. Fogarty's illegal subpoena duces tecum, but did not indicate the most important ground, that Ms. Fogarty did not have authority to issue such a subpoena in the first place.

Here is  Mr. Wentworth's unsigned motion to quash that he gave Mr. Shtrauch at the time he already appeared in court, where Mr. Shtrauch had absolutely no time to address the "motion", not to mention that service of unsigned papers does not constitute valid service of a motion in the first place.

What Mr. Wentworth did say though was that in Chenango County Public Defender's office the routine is such that the court somehow allow the Public Defender's office to conduct an "eligibility interview" of people applying for an assigned counsel.

The interesting part is that the Public Defender in Chenango County is the brother-in-law of the previously recused Judge Dowd, which raises all kinds of issues pertaining to the appearance of impropriety of such an arrangement in this particular set of circumstances.

Mr. Wentworth neglected to serve his motion to quash on Mr. Shtrauch.

So, two written motions had to be served on Mr. Shtrauch, a pro se indigent party, a non-native speaker of English, and he had to be given an opportunity to respond to those motions.

Instead, he was served with exactly NONE of those motions.

He first learnt that any motion was filed by Mr. Wentworth when he came to trial and saw Mr. Wentworth there - while Mr. Wentworth's art in litigation was long concluded.

Mr Rumsey considered arguments of parties right then and there - despite the fact that no motions for a subpoena duces tecum were made and despite the fact that Ms. Fogarty clearly committed misconduct in usurping the judge's role in issuing such a supboena herself - and - guess what - granted Ms. Fogarty's right to proceed with her illegal subpoena duces tecum.

==

It is, all around - one big mess, and it looks to me that the reason why it is such a big mess is that Mr. Shtrauch is a foreign national (national of the state of Israel), his wife is a local, the wife and mother is close to Judge Dowd's law clerk's family to the point of having the children playing in the law clerk's home - without disclosure of these disqualifying events to the father, and the father dared to protest against that.

You cannot discriminate against a person more than Mr. Shtrauch was discriminated against.

He is pro se.

He is indigent.

English is not his Native language.

Not the judge, not the opposing counsel are taking any notice of all of that and, to me, proceed as if the law simply does not exist.

He is prevented from hiring an attorney because the court refused to give him interim relief that he is entitled to.

He is prevented from hiring experts he needs to evaluate the increase of earning capacity of his spouse who, according to Mr. Shtrauch, earned a college degree during the marriage, because he is denied interim relief.

Mr. Shtrauch, according to his statements to me, was laid off from his job and prevented from acquiring new job skills or looking for a new job by the order of the previous judge, Judge Dowd who - at the same time - required Mr. Shtrauch to watch the children for his wife from morning till night as a free daycare service - and pay child support in the amount that was many times more than the $25.00 per month that Judge Dowd could award, as a matter of law, against a parent whose income is, as Mr. Shtrauch's is, below the self-support reserve (135% of the federal poverty level).

Mr. Shtrauch is not given notices of motions.

The court allows the counseled plaintiff (who is apparently close to the previous recused judge's law clerk) to proceed to:

• proceed to a trial without filing or serving a trial note of issue;
• file the note of issue in the middle of the trial and not strike the testimony that was accepted by the court before such trial note of issue was filed;
• compel discovery while continuing the trial;
• allow Ms. Fogarty to act as if she is a judge, issuing judicial subpoenas duces tecum upon a public entity;
• allow Ms. Fogarty to make oral motions for frivolous conduct, which motions can only be done in writing and on notice to parties, with strict service requirements;
• review and grant Ms. Fogarty's motions that are not warranted by law or facts - to compel discovery during trial, without indicating that she made good faith efforts to ensure compliance with discovery (I've seen Ms. Fogarty's motion) while at the same time stating that the judge did not have time to even review Mr. Shtrauch's cross-motion - and then deny the cross-motion in its entirety in perfunctory manner, some time later.

I've never seen a divorce proceeding that would be such a mess.

The judge is obviously biased and should have stepped off the case long time ago.

Ms. Fogarty should have been disqualified off the case and sanctioned because of her continuing misconduct long time ago, yet, she continues to receive favors from judge Rumsey that are not warranted by law.

Is the judge bending over backwards to Ms. Fogarty - who is representing a private party - also because she is a public official, an assistant Public Defender for Otsego County?

I do have a question to the New York State Comptroller though as to the private practice of Ms. Fogarty - how is it possible that she can have assigned cases in counties other than Otesgo (and a lot of them), have a very busy private practice - at the very same time as she is a full-time employee of the Otsego County?

Of course, with county attorney Ellen Coccoma (same Otsego County) representing private clients during her taxpayer-paid time while being a full-time Otsego County employee, I guess, anything is possible.

My question is though - will any of the disciplinary authorities that must handle investigations of misconduct of judges and attorneyswake up and do their duties to protect Mr. Shtrauch from this ongoing misconduct?

Will NYS Comptroller investigate private practice of full-time employees in Otsego and Delaware Counties and nepotism in these counties and in the Chenango County eliminating the situations where the office of the recused judge's brother in law is reviewing eligibility of a party who asked for the recusal and is representing him in a way that may raise questions of the public defender's loyalty to his client?

A prosecutor is part of the judiciary - for some purposes, but not for others

I received yesterday a decision of Judge Kahn on Defendants' "motion for a judgment on the pleadings" asking to dismiss the action Neroni v Zayas where my husband, in claims that survived from the intermediate dismissal, claimed the following:

• that he was not given access to his own disciplinary file in the attorney disciplinary committee - before, during and even AFTER his disciplinary proceedings concluded and when his disciplinary file became, to all who would want to see it, a public record pursuant to Judiciary Law 90(10);
• that somehow it does not constitute any constitutional violation where a member of attorney disciplinary committee engages in post-disbarment investigations - something that the same Judge Kahn said previously that may be a constitutional violation in his previous decision.

Of course, Chief Judge Sharpe, Judge Kahn's superior, in the interim between Judge Kahn's decision # 1 (there may be a constitutional violation in post-disbarment investigations) and his decision # 2 (Plaintiff has failed to state a cause of action for a constitutional violation - in the same pleadings that were the basis of decision # 1), commenced Judge Sharpe's own action for an anti-filing injunction against my husband and included into that action claims based on Neroni v Zayas, over my head as a counsel in Neroni v Zayas litigation, over the head of judge Kahn as the presiding judge in that case, before that case was adjudicated.

Judge Sharpe used the yet-unadjudicated Neroni v Zayas case to punish my husband with a PERMANENT draconian anti-filing injunction that had nothing to do with any possible rule of law (currently on appeal).

So, I understand that Judge Kahn had to think long and hard as to how to adjust his Decision # 1 to Judge Sharpe's anti-filing injunction based on the yet-unadjudicated Neroni v Zayas - and produced a Decision # 2, which makes no sense, if two decisions are compared, but makes perfect sense in terms of obedience to the unwarranted opinion of Judge Kahn's superior.

A more specific analysis of Decision 1, Anti-filing injunction, and Decision 2 by Judge Kahn pertaining to the same case, will follow.

What I can say today is that a precedent has been created indicating that an attorney can be denied access to his disciplinary file before, during and after the conclusion of the disciplinary proceedings.

In my personal opinion, knowing all I know about the workings of the attorney disciplinary committees in general, and of this particular disciplinary committee (of the Appellate Division Third Department) specifically, this precedent was created to protect the committee from the following investigation through discovery:

• that attorney disciplinary committees in the State of New York, and the attorney disciplinary committee of the Third Department, have absolutely no archives and no records of what they are doing and operate as a shadowy - and lethal - force under the rug of the judicial system, without any supervision and without any accounting for their actions;
• that the committee has absolutely no records of who voted to investigate or prosecute an attorney - and how that particular member of the committee voted;
• that when the committee tells the court, in sworn pleadings, to obtain public discipline of an attorney to the point of stripping the attorney of his hard-earned law license, reputation and any ability to earn a decent living for himself and his family (because a disbarred attorney is usually blacklisted and denied employment anywhere he turns), the committee may commit perjury left and right, because - see above - no archives exist, and there is no way for the disciplined attorney to obtain access to the archive to prove that.

Oh, and there is yet another "discovery" by Judge Kahn in his decision.

Judge Kahn, in his decision # 2, was carefully trying to avoid the issue that my husband was trying to get access to HIS OWN disciplinary file, a file cited by the disciplinary committee in the court pleadings (without providing the actual certified copies of documents) and based on which my husband's license was revoked.

In his attempts to avoid the necessity to address the key issue of litigation, Judge Kahn made the following two stunning and diametrically opposite conclusions:

1. Freedom of Information Law (which was irrelevant to my husband's due process right of access to his own disciplinary file) is not applicable to the judiciary (that is correct), and, therefore, was not applicable to the Defendants - making them part of the judiciary (even though they acted in my husband's disciplinary case as prosecutors, and thus, part of an executive branch of the government);
2. My husband (and, obviously, I as his attorney in federal court) is "confused" in arguing that, if the prosecutor is actually part of the same court that was adjudicating his disciplinary proceedings, the disciplinary committee was disqualified from proceeding as a prosecutor in that disciplinary proceedings.

In other words, my husband's claim was clear as day:  a prosecutor may not claim to be a judge for one purpose (to protect themselves from access to the file) and to be a prosecutor for another purpose (claiming that they are not disqualified under the judge-advocate rule and separation of power principle).

Pursuant to Judge Kahn (Decision # 2) - the prosecutor may now be both - they may deny access to the file as if they are a judge, and they may still continue to claim that they were a proper prosecutor.

I would be surprised at such a stark change of opinion, but I am not, for a good reason.

Judge Kahn is part of one of the American Inns of Court where the law firm where my husband's disciplinary prosecutor John Casey who sold his prosecutorial discretion for the right to represent one of the politically subjects turned in (by my husband and myself) for his investigation is a member and may be providing to Judge Kahn and other members of this particular federal district court benefits, not to mention that this law firm, Hiscock & Barclay employs multiple recent former confidential law clerks of judges of the U.S. District Court for the Northern District of New York.

And, partners from Hiscock & Barclay "serve" on committees appointing magistrate judges of NDNY, and partners from Hiscock & Barclay "serve" on committee making local rules for the NDNY.

And, and, and...  Who knows what exactly Judge Kahn may have discussed with John Casey or his partners behind closed doors during his monthly-or-more-frequent meetings behind closed doors in the American Inn of Court?

Who knows what took place during those discussions, what kind of incentives may have been offered to Judge Kahn?

The reason to prohibit ex parte communications to judges is obvious - there is no way to restore what occurred during those communications, and interested witnesses may not be relied upon to produce the record.

One piece of evidence is apparent enough though - comparison of Decision # 1 with Decision # 2 by the same judge, made on the same pleadings, with diametrically opposite rulings - should raise questions and eyebrows.

The rule of law is a chameleon - in Delaware County courts

Before the Mokay trial (see my blog post "the Mokay sage", my April posts and posts that can be obtained by putting the keyword "Mokay" in the search box on this blog on the right of the text) I tried, unsuccessfully, to obtain from Judge Dowd an order forcing Richard Harlem and his law firm to file with the court two boxes of trial exhibits for my review when Richard Harlem was blackmailing me that I had to agree to review of those records before trial at this office, under the supervision of his paralegal, which supervision  Richard Harlem was planning to charge against my client at the rate of $100/hr, because the alternative that Richard Harlem threatened me is to have those records be reviewed at trial, and charge against my client the hourly rate of two trial attorneys - himself and James Hartmann.

I have a phone recording indicating that, as of the time of the threat against my client by Richard Harlem that my client will have to pay for review of the exhibits at the rate of two trial counsel if I refuse to agree to review of the same under the supervision of Richard Harlem's paralegal, at the price tag to my client of over $100/hr, James Hartmann considered himself the sole trial counsel in the Mokay trial and was unaware that Richard Harlem was a second trial counsel in that case.

So, two weeks before trial, James Hartmann does not have trial exhibits in his possession, and does not know that the attorney who has trial exhibits in his possession (and who was the only testifying witness in the case) was the "second trial counsel" and added himself as a trial counsel obviously to pad up the bill of legal fees against my client (the only damages claimed in the Mokay trial were legal fees of Harlem& Jervis, the law firm that engaged in a conflicted representation and, by law, was not entitled to one penny of legal fees - if the law is to be applied, which is not likely in Judge Dowd's court).

The January 2015 ruling of the Appellate Division positioning the decedent Andrew Mokay (Estate) as a defendant in the Mokay action and the post-trial statement of plaintiff Daniel Mokay acknowledging that his father's misconduct was at the core of the Mokay proceedings, made the Mokay trial on damages a farce and waste of taxpayer money and of judicial resources.

The reason was that all damages claimed in the Mokay trial were attorney fees of attorneys representing, since February of 2007 (long before the Mokay case started), the decedent's Estate and who must, therefore, represent the interests of the decedent - yet the decedent's own son (and his "fiduciary" - Executor of his Estate) is accusing his own father of misconduct pertaining to the probate proceedings where Daniel Mokay is supposed to represent his deceased father's will - go figure.

By the way, I asked to consolidate (merge) the probate proceedings with the Mokay proceedings long time ago, because it is unconscionable that two testamentary instruments are litigated in two parallel court proceedings, and because conflicts of interest of Richard Harlem would have been much more visible had the proceedings been consolidated.

Judge Becker refused to consolidate claiming that consolidation will somehow "confuse" the issues - rather, it would have shown that Judge Becker was disqualified from presiding over the Mokay case as a witness, and a witness clearly committing misconduct behind the defendant Frederick J. Neroni's (my husband's) back.

Yet, when two actions were filed addressing the potential judgment in the Mokay case - an action for contribution from the decedent, since the Appellate Division indicated he was one of the tortfeasors, and a petition to the Surrogate's Court to stay probate proceedings, stop distribution from the Estate and make Richard Harlem return moneys so far obtained from the Estate, to make the Estate able to meet the possible judgment for contribution from Mr. Neroni - things started to unravel in a most interesting way.

Judge Mulvey suddenly decided to remove the probate proceedings from the Surrogate's Court into the Supreme Court - but neglected to notify me, my husband's attorney on the petition to the Surrogate's Court, of the order of removal.

The judge assigned to the removed case refused to abide by the order of removal and assignment and continued to act as if the case was never removed, to the point of advising clerks in two courts (Surrogate's and Supreme) that the order of removal was "erroneous".

To this day I did not receive a correction of that allegedly "erroneous" order, but the Delaware County Surrogate's Clerk did not transfer the case to the Delaware County Supreme Court, in defiance of the order of removal, the Delaware County Clerk refused to assign an index no. to the case preventing me from filing any pleadings (including an affidavit of service or motions) in the court where the case was removed to, and the Delaware County Supreme Court clerk undertook to advise me by letter her own opinion, obtained after her conversation with the judge assigned to HER court, that the order of assignment and removal - the only order in existence at this time - is, obviously in her own opinion, erroneous.

One does not need soap operas on TV, really - the Mokay saga in courts of the State of New York (and federal courts) is a real-time real-life soap opera.

Now, let's get to the pivotal issue.

In New York, by well settled law, an attorney who represents two parties of the same conflict in the same litigation, is not entitled to any attorney fees.

Not to one penny, not to one fraction of a penny.

Richard Harlem and his law firm undertook representation of the decedent Andrew Mokay in February of 2007, several months before Richard Harlem and his law firm started the Mokay litigation against my husband, where the Appellate Division, as of January 2015, acknoweldged that the decedent was the wrongdoer against his children - and Daniel Mokay confirmed that in his affidavit in the action for contribution as of early May, 2015, after the ex parte Mokay trial.

So, it is clear as day that no matter how many boxes of exhibits Richard Harlem tosses at courts to prove his efforts to represent both sides of the conflict, by law Richard Harlem and his law firms are entitled to exactly nothing in legal fees.

Since only Richard Harlem's legal fees were claimed as damages, that means exactly no damages.

And that means that the Mokay case had to be dismissed at commencement, and Richard Harlem sanctioned for frivolous conduct - something that had to be done in the summer of 2007, 8 years ago.


Judge Dowd knew about the decision of the Appellate Division making the trial unnecessary and requiring him to apply the law and to dismiss the case because no attorneys fees/damages could be awarded for representation of Richard Harlem.

Yet, doing so would upset Richard Harlem's political connections, such as Senator James Seward to whose Oneonta district office Richard Harlem is a landlord, Senator Neil Breslin (part of the law firm representing Richard Harlem), and that is only the tip of the iceberg of Richard Harlem's political connections that is available through public records.

And, dismissal of the Mokay case will result in an instant motion to restore Mr. Neroni's law license that will have to be granted as a matter of law - something that Judge Dowd is apparently bent to prevent, no matter what the law says.

So, Judge Dowd (who, personally or through his law clerk or secretary had a documented ex parte communication with Richard Harlem's office before trial) decided to disregard that appellate decision, and to disregard the trial witness subpoenas served upon him, his law clerk and his secretary, which subpoenas completely disqualified him from presiding over the case (because Richard Harlem had the audacity to charge his clients - and my husband - for ex parte communications with Judge Dowd, so Judge Dowd and his personnel WERE, indeed, proper witnesses in the trial on damages).

I already wrote in this blog that Judge Dowd, a subpoenaed witness in the case, pronounced the subpoena served upon him "a nullity", disregarded a medical diagnosis and medical leave of the defense trial counsel, dismissed the convened jury pool and proceeded to preside over an ex parte trial himself, admitted whatever exhibits Richard Harlem had, the two boxes of them, in bulk, without review of what is in those exhibits, at less than 19 seconds per multi-page exhibit, and is now hiding the exhibits from my review by (1) denying me access to exhibits already received by the court; and (2) refusing to issue a written order documenting his denial to me of access to the exhibits.

Previously, Judge Dowd's law clerk Claudette Newman, in an email to me, indicated that the judge has no authority to issue orders in response to a letter - a letter where I asked the court to order Richard Harlem to file the "certified records" with the court for my review (and that had to be done in the first place because the alleged exhibits were allegedly obtained from Delaware County Clerk and should have been filed with the court before trial and kept in court to prevent the taint to the certification).

So, Judge Dowd had no authority to review my letters and issue orders based on them, indicating to me that I had to make a motion.

Motions Judge Dowd simply did not accept from me, forcing me to file applications for Orders to Show Cause and then disregarding them.

So, while engaging in all of those shenanigans that Judge Dowd was certainly not authorized by law to engage into, Judge Dowd indicated to me through his law clerk that his authority is somehow restricted because he allegedly had no authority to issue orders based on letters directed to him.

Yet, the same Judge Dowd did, apparently, have authority to issue orders based on letter submissions by Richard Harlem (son of a judge) and by the New York State Attorney General's office - in the same case, multiple times!

Moreover, recently I attended a deposition in yet another case where Judge Dowd presided, where the wife of a powerful administrative judge, Ellen Coccoma, wife of Michael V Coccoma, Chief Administrative Judge of Upstate New York (a judge who holds authority to give or not to give to Judge Dowd post-retirement perks, and Dowd is close to retirement) failed to produce to an individual she claimed she subpoenaed through a court order, the court order that Ellen Coccoma has never served upon that individual (who could only be subpoenaed as a third party witness, and such subpoenaes require special protections and notice requirements).

The reason for this "failure to produce" was actually easy - the individual (who happened to be my husband) was demanding from Ellen Coccoma to produce the order along with the proof of service upon him, and the motion papers upon which the order was granted, as well as the notice given to him of such a motion being made.

The truth of the matter was that, had Ellen Coccoma produced the papers my husband was asking for, it would have been revealed that Judge Dowd made an order upon her LETTER - and an order with a caption indicating that Ellen Coccoma's client who is dead for 4 years (!) is still alive.

And, that no motion has been made by her - which would require her to actually pay a filing fee and file the motion with the Delaware County Clerk.

Instead, Ellen Coccoma simply sent a letter to Judge Dowd's chambers asking for an order - and Judge Dowd obliged.

But wait - isn't issuing an order based on a letter exactly what Claudette Newman told me that Judge Dowd is not authorized by law to do?  

So, let's put our ducks in a row once again.

The rule of law proclaimed by Judge Dowd states that Judge Dowd has no authority to issue orders based on letters.

Yet, this rule apparently has significant exceptions as follows:

• if the author of the letter is a son of a judge (like Richard Harlem);
• if the author of the letter is New York State Attorney General (counsel for Judge Dowd in pending litigation, and counsel for all judges in the State of New York in and out of courts);
• if the author of the letter is a spouse of a judge, especially of a judge who holds the key to lucrative post-retirement financial benefits (or lack thereof) to Judge Dowd;
• if the letter asks to do something against the Neronis;

then the rule does not apply.

Well done, Judge Dowd.

Long live the rule of law.

250 prosecutors disqualified in California by a single judicial decision because of misconduct - will there be any discipline of those prosecutors?

A judge in California has just disqualified 250 prosecutors off a major case because of a long history failure to turn over to the defense exculpating and impeachment evidence about informants who were illegally pumping criminal defendants for incriminating information, despite their attached right to counsel.

As a response, the prosecutors increased dramatically their motions to disqualify the judge.  Usually such motions are made when the judge is not impartial.  Ruling fairly as to prosecutorial misconduct that truly occurred does not constitute a ground for disqualification of a judge, and the judge should be commended for his courage, as his disqualification decision are ruffling a lot of feathers in the political elite of the state.

The reason for the disqualification, among other things, was that the Orange County Sheriff's Department, in total agreement with the DA's office, created and operated - for years and decades - a SECRET system of evidence against criminal defendants held in custody and pumped for information by jail snitches.

Such pumping for information by jail snitches at the behest of the government was the same as the government conducting interrogation.  Some of the evidence secretly held by the police for 25 years was exculpatory and was not turned over to the defense, with the full knowledge of the prosecutors.

Two years ago, it has been reported that crime labs are paid PER CONVICTION, meaning that the results of their work is clearly tied to whether the defendant is convicted or not.

Imagine what kind of perverse incentive that is and how many lives it may have disrupted through wrongful convictions.

My search on the Internet failed to discover that anybody was disciplined or held accountable for creating such a "pay-per-conviction" scheme of compensation for the crime labs, and one does not have to be a wiz to see a hand of a prosecutor (a future judge?) all over the place in this pay-per-conviction scheme.

Imagine how many lawyers (prosecutors) knew about the scheme and kept mum.

In April of 2015 it was reported that federal crime labs were presenting false evidence and testimony in criminal cases since 1999, generating an unknown number of false convictions and falsely induced plea bargains.

My question is - when independent civil rights and defense lawyers are suspended and disbarred left and right for simply criticizing a judge (for which they must have full 1st Amendment protection - especially when they do that to ensure their clients' right to a fair and impartial adjudication), what will be done in terms of discipline to prosecutors who perpetrated all of the above-reported fraud and misconduct?

Should we hold our collective breaths to figure that out or do we already know the answer - NOTHING?

And isn't this "nothing" the answer as to whether there is a reason to continue the fake protection of the attorney licensing system which protects only the market, with its high prices, from entry of affordable providers of legal services, not bound by financial contributions and financial ties in their loyalty to "the system"?

While we are waiting to see whether the 250 prosecutors will be disciplined or not, we can recall that California is the state that disbarred attorney Richard Fine for his fight against judicial corruption when he found out that state judges received additions to their salaries from counties that appeared in front of those same judges as parties.

The scandal was hushed by:

1.  disbarring and jailing in solitary confinement for 14 months (without charging him with a crime) the whistleblower against judicial corruption, prominent attorney Richard Fine, and by 
2. the State Legislature giving judges involved into the apparent corrupt scheme of justice for sale retrospective immunity from criminal prosecution, civil liability and disciplinary action  for any misconduct they may have committed.

With that in mind, I will be eagerly awaiting news as to how the now discovered misconduct of the 250 prosecutors will be handled by the State of California.

The new New York State one-size-fits-all bar exam - "rearranging the deck chairs on the Titanic" while discrediting the idea of regulation of the legal profession

This month, New York announced that, starting from July of 2016 it will switch to a multi-state bar exam, departing from its traditional two-part two-day exam checking both the federal and the New York State law.

The decision is paraded as a measure to allow more mobility to young attorneys who increasingly struggle to find employment on graduation.

Some professors explain that phenomenon by the fact that there is a decreased demand for legal services.

Being in that market, I can say that it is simply not true.

The market for legal services not only did not decrease, but is growing - it is the attorneys who try to justify their costly legal education by high hourly rates who are pricing themselves out of the market.

In fact, the same Chief Judge Lippman who changed the rules regarding the bar exam to allow New York attorneys to go work in Nebraska or Missouri, states who also embraced the multi-state bar exam, also repeatedly claims to the public that there is a crisis in the New York justice system where over 80% of litigants simply cannot afford an attorney.

If the market is deregulated and attorneys will have competition from non-attorneys, prices will instantly settle themselves, and those 80% of people who at this time have no access to affordable legal services, will get such access.

To claim that attorney licensing protects the 80% of the public who must go without the needed legal services because they cannot afford the high prices in a tightly regulated market, is to shed crocodile tears, and especially with the way attorneys are regulated:

• when the most powerful attorneys (prosecutors, judges, law clerks, the New York State Attorney General and his over 640 assistants, all attorneys working for the government, attorneys related to attorneys working for the government) are beyond the reach of discipline, it is not the consumers that attorney regulation is protecting;
• when attorneys targeted for discipline are attorneys blowing the whistle against judicial corruption and corruption of other public officials and politically connected attorneys, the public and consumers of legal services are not protected;
• when the super-majority on the attorney disciplinary committees are private market participants interested to preserve their high prices, restrict access to the market to preserve those high prices, and are interested to eliminate competition and especially competition from independent attorneys, and when representatives of the cross-section of the public are not allowed representation on those committees to the point of casing a decisive vote as to what they consider good or not good for their own protection, that is not protection of the public, it is a fake designed to preserve the status quo for the legal elite while pretending that the self-serving actions of that legal elite is somehow done for the protection of the public and not to enrich politically connected attorneys, the friends and family members;
• when the public is not allowed to be present at attorney disciplinary proceedings, even if the attorney subject to those proceedings asks for it repeatedly, that is not protection of the public.

The change in the New York State bar exam puts yet another dent into the claim that attorney licensing in New York (and elsewhere) is designed to protect consumers from incompetent and/or unethical attorneys.

Due to well reported difficulty to get employment on graduation, more and more potential students skip law school and pursue other graduate education.

While enrollments in law schools dwindle, law schools lower their standards for admission to keep financially afloat.

Thus, the caliber of students entering law schools and graduating from them, dwindles, too.

In order to allow that lower caliber of students to pass the New York State bar which can prove too rigorous for them, New York eliminates the toughest part of the exam - the New York State part - and allows students to take a one-size-fits-all exam that will be somehow valid in:

1. Alabama, 
2. Alaska, 
3. Arizona, 
4. Colorado, 
5. Idaho, 
6. Kansas, 
7. Minnesota, 
8. Missouri, 
9. Montana, 
10. Nebraska, 
11. New Hampshire, 
12. North Dakota, 
13. Utah, 
14. Washington, and 
15. Wyoming

I doubt that employment situation for young attorneys right out of law school is much different from New York, so to direct New York attorneys to get employment in Kansas while to direct Kansas attorneys to seek employment in New York sure aids attorney's mobility (which is good), but does not change problems in the market of legal services, prompting a reporter from the Fortune magazine to call the arrangement "rearranging the deck chairs on the Titanic".

It is even more alarming that Chief Judge of the state of New York Jonathan Lippman indicated that what New York does other states follow, and that there may be a "domino effect" amongst the states to change their bar exams to the "one size fits all" exams.

There is the good and the bad in that.

The good - that same acclaimed mobility, an attorney who sat for one bar exam (which is a gruelling experience enough, as I can attest, having passed the "old" New York State bar exam in the first sitting, while English is not my native language), does not have to be the slave of a certain state, chained to the State of New York (or Kansas, or Missouri, for that matter).

On the other hand, I do not know how complex is the law in other states, but in New York, passing a bar exam without being tested in knowledge of, specifically, New York Civil Practice Law and Rules (for civil litigation), New York Family Court Act (for proceedings in child support, paternity, custody and visitation, child abuse and neglect, domestic violence), New York Penal Law and Criminal Procedure Law is the same as not passing the bar exam at all.

The "short online multiple choice test" of New York State law is a completely inadequate measure to test competency in New York State law as a justification of attorney regulation in the State of New York.  First, identity of test takers in online tests is unverifiable, second, the New York State portion should be the largest and most vigorously tested, to prepare for practice in New York State courts, and not instead treated in a perfunctory measure, to report that the test takers took SOME tests in New York State law - online.

If online testing is so adequate - why not conduct the ENTIRE bar exam online?

Yet, the security measures in New York for bar testers are designed to ensure that one cannot take that test for another - when I was taking that test in 2008, I had an identifying bracelet around my wrist for two days of the exam, my ID with me at all times, and my computer (I was taking the test on the laptop) was blocked from the Internet completely.

So - if New York State now allows ONLINE "short tests" of the New York State law, while not changing security measures for the rest of the bar exam, it only shows that New York DOES NOT CARE who takes the New York State portion of the bar exam - as long as it is passed.

Yet, it will be the CPLR and the Family Court Act and the Penal Law and the Criminal Procedure Law, and Real Property Actions and Proceedings Law and Surrogate's Court Procedure Act, all state statutes, that will control court proceedings where a young attorney will engage.

Passing online "short" multiple choice exam on New York state law will not prepare bar exam takers for practice in New York State courts.

Moreover, since it will be an online test, and a "short" multiple choice exam, preparation for that portion of the bar exam will not be considered important - with resulting lack of knowledge by the test takers.

Passing a one-size-fits-all exam in its simplified format, thus, will not provide to the public a proper assurance that attorneys who passed the test are prepared to practice law specifically in the courts of the State of New York, because in the courts of the State of New York, an attorney needs to know New York law, and not simply be able to be trained for a brain-dump of a one-size-fits-all bar exam.

 Which means to me that shifting to the one-size-fits-all exam in states with vast differences in their statutes and procedures, both in civil and criminal litigation, at the trial and appellate levels, discredits the whole idea of attorney licensing, because neither graduation from the "ABA-certified law school", nor passing of the "one-size-fits-all" bar exam provide assurance to the public that a licensed attorney is any more competent than an unlicensed individual who has diligently read the applicable law and is ready, willing and able to represent his neighbor or friend in court.

In fact, there is more assurance of competence of the neighbor who has actually studied the applicable state law than an attorney who has a pulse and a license based on passing a simplified one-size-fits-all bar exam that did not test the attorney in the knowledge of state law, but the license provides to the public a false assurance of competence.

To continue with attorney licensing under such circumstances is to continue to deceive the public with false assurances of competence where no competence can be found.

==

That said, what remains is a huge issue of equal protection concerning those attorneys who had the misfortune of having passed the more rigorous "old" bar exam, with the state component, but that is not recognized by other states.

Will the State of New York try to bridge that inequality gap by entering agreements with other states that attorneys who received their licenses before the new bar exam is going to be introduced in July of 2016, will not be penalized for taking the bar exam "too early" to be automatically recognized by other states?

Does it make any sense for this year's law school graduates to take July 2015 or February 2016 bar exam since it requires more efforts, but will provide less rights to the successful takers?

Does it make sense to wait until July 2016 and work somewhere in a non-attorney position for a year, so that the gruelling efforts in bar preparation will not be wasted?

Questions, questions, questions.

All of those questions can be resolved in one go if this Gordian knot of the market of legal services regulated to the brink of perishing, is simply cut and the market is deregulated.

Then, prices will even out, competence will become a point of proof for each attorney (or non-attorney) and a point of responsible background research by the consumers before they come to a certain provider of legal services before hiring him or her.

Then, competence will survive and incompetence will perish - as they should in a market economy.

If the market of legal services is deregulated, courts will lose the leverage of trying to eliminate capable providers of legal services for the mere reason that those providers blew a whistle on judicial misconduct, and those providers will be available to the public, at a time when governmental misconduct increasingly becomes a problem that needs more and more attorneys to deal with it - and not be afraid to deal with it.

It appears that deregulation of the legal profession is around the corner, and no matter how states are trying to prevent that event (lobbied, no doubt, by the legal elite that stands to lose the most from such deregulation), the Titanic is sinking.

Rearranging decks chairs will not help.