Judge Persky, despite the national and international efforts to recall him because of his outrageously lenient sentence given to a rapist of an unconscious woman, was just re-elected - since he ran unopposed. And while sending a message to the community that the woman is to blame herself for drinking, partying - and being raped by a white privileged man behind the dumpster.
But, while efforts are mounting to recall Persky, he is already getting his comeuppance in the courthouse - from potential jurors.
Reportedly, now potential jurors refuse to serve under him.
20 potential jurors so far refused to serve under Judge Persky because of the mockery he did out of the jury verdict in the #Stanfordrapist's case.
I understand their feelings completely.
If they render the verdict of guilty, Judge Persky will simply make it disappear by a next-to-nothing sentence if he "feels" to favor the already convicted defendant, so what's the point?
So, when we are talking about giving absolute judicial immunity for malicious and corrupt acts on the bench (like Judge Persky's) as a matter of public policy - made up by the judiciary, bypassing the legislatures - the public appears to strongly disagree, and offer their own way of fighting it, by refusing to serve as jurors under the dishonest judge.
Who would expect such a turn of events?
But, that's people's true answer to what Persky is doing.
And, since the public started to oppose judicial misconduct by refusing to serve as jurors under a misbehaving judge, and that act of civil disobedience has been publicized, it can happen in other courts, in other states, and in regards to other misbehaving judges.
Let's see whether this trend will take.
Saturday, June 11, 2016
A Georgia judge #JDavidRoper denies name change to a transgender man as public fraud and offensive to public mores and sensibilities
Superior Court Judge in Georgia J. David Roper has recently denied, according to reports in the press, a name change to a transgender man claiming that it was "fraud" and that the judge disapproves name changes from gender to gender.
Apparently, with what is happening now with the boycotting of North Carolina events because of its discrimination against transgender people, judge Roper is seeking publicity for himself.
Well, Judge Roper has had a lot of publicity lately without his "name fraud" ruling - a year ago a court clerk (!) filed an affidavit accusing the judge of “persistent practice of trying to micromanage the clerk’s office” through “checking out original files relating to cases assigned to him and keeping them for months at a time.”
Wow - first, that is what ALL judges do in Delaware County, NY - ALL of them. They check out court files without written notations that the file is with them, do not return them for months - or years, actually, including the time when appeals of their decisions are pending and their withholding of records prevents perfecting the appeals, accept filings bypassing the Clerk's office, file with the Clerk's office wherever they want (or whenever they are caught holding onto the files) or give away records from the file to the parties they favor during the pendency of appeals against such parties.
Oh, brother - that is a felony in Georgia.
We are ruled in New York by felons. Because, in New York there are also rules of filing and keeping records in the court file, but rules are not followed and who is going to prosecute judges - the DA for whom local judges bend over backwards and whose license is in the hands of the judiciary?
But, back to Georgia.
The clerk who lost it in Georgia, stated in her affidavit against the judge that "“[h]e marks documents filed with his own filing stamp, but does not timely send them to the clerk’s office for recording,” and that Judge Roper "would get irritated with her staff when they asked him to return records."
Judge Roper seems to get irritated with a lot of things - not only the lawful requests of the clerk for the judge to follow the law about filing and keeping of the court records, but also about people's right to ensure that their name reflects their gender identity.
The clerk also stated in the affidavit that "“Judge Roper has in the past checked out files, kept these files for months, and sometimes over a year, had lawyers file additional documents with him and has kept litigation files that are a matter of public record away from public inspection and review,” Mason wrote in her affidavit. “This practice is contrary to the law and makes it impossible for the press and public from seeing files that are by law subject to public inspection.”
Oh, wow.
This is like a breath of fresh air to me.
For a court clerk, instead of bending over backwards to accommodate ANY - and, I mean, ANY - illegal shenanigan of a judge, simply to keep her job, this clerk is actually insisting that a judge must follow the law, in an open affidavit filed against the judge.
Incredible.
Of course, Judge Roper actually asked for it - as I just wrote in my other blog today, sometimes judges forget themselves with their criminal shenanigans and step just too far.
Stepping too far in this case was when Judge Roper tried to hold the court clerk in criminal contempt of court:
"Mason’s affidavit comes in response to a contempt complaint that Roper filed against her June 1 (2015 - T.N.) for “willfully failing to comply” with an order Chief Superior Court Judge J. Carlisle Overstreet issued in January about how public documents should be filed."
Well, the clerk stated exactly how the documents should be filed - or are filed by Judge Roper - in her affidavit.
"Under Georgia law, any public officer who alters, defaces or falsifies any minutes, document, book or proceeding belonging to the state can face a felony charge and between two to 10 years in prison" - and it should be this way.
And not only in Georgia.
Of course, the judge dropped citation against the clerk when the social media fury was unleashed in her support - so much for judicial independence.
Well, now Judge Roper is right back into the media attention, when he tried to impose his own "mores" and "sensibilities" upon the public - and deprive a person of his identity because the judge believes, reportedly, that:
"Name changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public. Such name changes also offend the sensibilities and mores of a substantial portion of the citizens of this state."
Who could tell that court proceedings are to be decided based on "sensibilities and mores of a substantial portion of the citizens of this state"?
I thought, such issues are issues of individual liberty and autonomy, to be decided under the Due Process Clause of the 14th Amendment, not by a majoritarian vote.
And, as to vote - I wonder where did the judge get that idea, that name changes "offend the sensibilities and mores of a substantial portion of the citizens of this state".
Is Judge Roper some kind of a polling agency?
An appeal was filed from Judge Roper's decision, and I will continue to cover this story.
Stay tuned.
Apparently, with what is happening now with the boycotting of North Carolina events because of its discrimination against transgender people, judge Roper is seeking publicity for himself.
Well, Judge Roper has had a lot of publicity lately without his "name fraud" ruling - a year ago a court clerk (!) filed an affidavit accusing the judge of “persistent practice of trying to micromanage the clerk’s office” through “checking out original files relating to cases assigned to him and keeping them for months at a time.”
Wow - first, that is what ALL judges do in Delaware County, NY - ALL of them. They check out court files without written notations that the file is with them, do not return them for months - or years, actually, including the time when appeals of their decisions are pending and their withholding of records prevents perfecting the appeals, accept filings bypassing the Clerk's office, file with the Clerk's office wherever they want (or whenever they are caught holding onto the files) or give away records from the file to the parties they favor during the pendency of appeals against such parties.
Oh, brother - that is a felony in Georgia.
We are ruled in New York by felons. Because, in New York there are also rules of filing and keeping records in the court file, but rules are not followed and who is going to prosecute judges - the DA for whom local judges bend over backwards and whose license is in the hands of the judiciary?
But, back to Georgia.
The clerk who lost it in Georgia, stated in her affidavit against the judge that "“[h]e marks documents filed with his own filing stamp, but does not timely send them to the clerk’s office for recording,” and that Judge Roper "would get irritated with her staff when they asked him to return records."
Judge Roper seems to get irritated with a lot of things - not only the lawful requests of the clerk for the judge to follow the law about filing and keeping of the court records, but also about people's right to ensure that their name reflects their gender identity.
The clerk also stated in the affidavit that "“Judge Roper has in the past checked out files, kept these files for months, and sometimes over a year, had lawyers file additional documents with him and has kept litigation files that are a matter of public record away from public inspection and review,” Mason wrote in her affidavit. “This practice is contrary to the law and makes it impossible for the press and public from seeing files that are by law subject to public inspection.”
Oh, wow.
This is like a breath of fresh air to me.
For a court clerk, instead of bending over backwards to accommodate ANY - and, I mean, ANY - illegal shenanigan of a judge, simply to keep her job, this clerk is actually insisting that a judge must follow the law, in an open affidavit filed against the judge.
Incredible.
Of course, Judge Roper actually asked for it - as I just wrote in my other blog today, sometimes judges forget themselves with their criminal shenanigans and step just too far.
Stepping too far in this case was when Judge Roper tried to hold the court clerk in criminal contempt of court:
"Mason’s affidavit comes in response to a contempt complaint that Roper filed against her June 1 (2015 - T.N.) for “willfully failing to comply” with an order Chief Superior Court Judge J. Carlisle Overstreet issued in January about how public documents should be filed."
Well, the clerk stated exactly how the documents should be filed - or are filed by Judge Roper - in her affidavit.
"Under Georgia law, any public officer who alters, defaces or falsifies any minutes, document, book or proceeding belonging to the state can face a felony charge and between two to 10 years in prison" - and it should be this way.
And not only in Georgia.
Of course, the judge dropped citation against the clerk when the social media fury was unleashed in her support - so much for judicial independence.
Well, now Judge Roper is right back into the media attention, when he tried to impose his own "mores" and "sensibilities" upon the public - and deprive a person of his identity because the judge believes, reportedly, that:
"Name changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public. Such name changes also offend the sensibilities and mores of a substantial portion of the citizens of this state."
Who could tell that court proceedings are to be decided based on "sensibilities and mores of a substantial portion of the citizens of this state"?
I thought, such issues are issues of individual liberty and autonomy, to be decided under the Due Process Clause of the 14th Amendment, not by a majoritarian vote.
And, as to vote - I wonder where did the judge get that idea, that name changes "offend the sensibilities and mores of a substantial portion of the citizens of this state".
Is Judge Roper some kind of a polling agency?
An appeal was filed from Judge Roper's decision, and I will continue to cover this story.
Stay tuned.
The tide regarding judicial misconduct is turning - with law professors from elite law schools joining the fight
Absolute judicial immunity for malicious and corrupt acts on the bench was self-gifted by the judiciary to itself on the claims that such immunity - again, for malicious and corrupt acts on the bench - somehow protects judicial independents.
Well, the public never bought this crap, and it appears that the legal establishment starts to shift, too.
I wrote on this blog about a George Mason Law professor Ilya Somin who openly criticized the U.S. Supreme Court Justice Sonya Sotomayor for her unconstitutional claim that she would make attorneys work for free in order to be entitled to earn a living at all, and who instead suggested the idea previously offered only by economists and legal bloggers like me - to deregulate the legal profession if regulation does not help, but instead hurts the public and contributes to the growing "justice gap".
That's the same George Mason school where professors rebelled against the law school's collective statement that the faculty is grieving the passing of the U.S. Supreme Court Justice Antonin Scalia, and opposing efforts to rename the school after Antonin Scalia, by taking an action through the faculty Senate - because of Antonin Scalia's misconduct that was revealed in his court decisions and in the press.
Now, a Stanford Law professor leads the efforts to take off the bench a just-re-elected judge Aaron Persky because of his unduly favorable decision in a rape case and demeaning of rape victims.
Law professor Michele Dauber delivered a petition to the California Commission for Judicial Performance. While the petition is asking for a "recall" of the judge, I wonder if the California Commission can simply take Persky off the bench for obvious misconduct.
In any event, it is clear that the issue of judicial misconduct, a recent taboo, an "unmentionable", is finally making front lines in mainstream media and is subject of petitions of law professors to recall judges because of their improper verdicts, as well as is causing national and international outrage is apparent that the tide toward judicial misconduct is turning.
Maybe, just maybe, with the help of social media that spread such news like a forest wildfire, we will not wait for long before legislatures and other government authorities in charge of judicial discipline, might have no choice soon but to make changes in judicial accountability rules and practices, at least not to be voted out of office.
Tatiana Neroni and Frederick Neroni, magnets for secret court proceedings and decisions
Court proceedings - and decisions - are presumed to be public in the U.S. and in the State of New York.
Neither Mr. Neroni nor I received a notice of that application, or were given an opportunity to be heard on that application.
Moreover, the sealing of the proceedings, which is done in New York to ensure privacy of the attorney and nothing else (and I waived my privacy several times, in writing) was used by the disciplinary prosecutor #MaryGasparini to file criminal charges against me when audio tapes of conferences in those proceedings, as well as description of misconduct in those proceedings, were posted on this blog.
The order of suspension does not state the real reason for my suspension - that I was punished for making a motion to recuse a judge (for which in other jurisdictions the punishing judge, and not the attorney, is subject to discipline and criminal charges for abuse of process).
That is a guarantee of Due Process and the 1st Amendment.
Openness of court proceedings provide an assurance for the parties that the public can come and observe the court proceedings, can come and look at documents filed in those proceedings - and verify that proceedings are fair, after all, court proceedings are financed by taxpayers and taxpayers have a right to know that their money is not misspent in personal vengeance.
Yet, the presumption of openness of court proceedings does not work for me or my husband somehow - we keep being prosecuted in secret court proceedings and keep receiving ex parte decisions made without notice to me or opportunity to be heard in opposition.
I will list those decisions:
June 11, 2014 - NYS Supreme Court Appellate Division 3rd Judicial Department - a decision that merged, ex parte, without notice or opportunity to be heard, my disciplinary case with the case of my already disbarred husband (the court lost jurisdiction as to him as of July 7, 2011, 3 years prior) and transferred the case to the 4th Department based on an "application" of my disciplinary prosecutors.
Neither Mr. Neroni nor I received a notice of that application, or were given an opportunity to be heard on that application.
The application was not transferred, with the other documents, to the 4th Department from the 3rd Department.
The 3rd Department adamantly refuses to give me or Mr. Neroni access to that unlawfully withheld and secret ex parte application - to this day.
My disciplinary proceedings in State Court - in New York, an attorney has a right to open her own disciplinary proceeding by a simple written waiver of privacy. I waived my privacy several times in 2014 and 2015, in writing.
The court refused to open my proceedings until it suspended my law license.
Moreover, the sealing of the proceedings, which is done in New York to ensure privacy of the attorney and nothing else (and I waived my privacy several times, in writing) was used by the disciplinary prosecutor #MaryGasparini to file criminal charges against me when audio tapes of conferences in those proceedings, as well as description of misconduct in those proceedings, were posted on this blog.
The 4th Department allowed the illegal criminal charges to pend for nearly 5 months before dismissing them, and then allowed the prosecutor who was a witness in a criminal proceedings against me, to continue prosecuting me, in violation of my due process rights.
My husband's trial in Mokay v Mokay in April of 2015 (you can read about the "Mokay saga" by typing the word "Mokay" in the search box on the right, there are a lot of blogs about this case) was held not only ex parte, in my absence, during my documented medical leave, but also while the judge instructed court personnel to mislead the public and tell observers from the public that the trial is not happening, while it was.
My order of suspension in state court, even though a public document, does not make public the real reasons for suspension, and thus constitutes a secret order of suspension.
The order of suspension does not state the real reason for my suspension - that I was punished for making a motion to recuse a judge (for which in other jurisdictions the punishing judge, and not the attorney, is subject to discipline and criminal charges for abuse of process).
The order of suspension is secret as to the aggravating circumstances, only stating some "mysterious" "abuse of legal process" - while I was never served with specifications of what is sought to be used as aggravated circumstances against me.
So, my "public" order of suspension is, in fact, a secret order - as far as the public is concerned, because after reading it, the public will still have no clue as to what was the reason of my suspension.
My secret order of suspension in federal court - there is NO public order of suspension in the U.S. District Court in the Northern District of New York, you will not find a court proceeding against me on Pacer filed and resolved in November of 2015, even though on attorney lookup I am listed as "suspended" by that court, and even though in various court proceedings claims are made that I am suspended in that court as of November 18, 2015.
Of course, since attorneys admitted to practice in any court are deemed "officers of the court", and I was admitted in an open-court swearing-in ceremony, removal of me as the officer of the court can only be done through a public order, and there is no such public order of suspension.
Not to mention that if my discipline is announced publicly, the order of suspension and the disciplinary proceedings that have led to it, must also be open to the public review - Star Chamber proceedings are not legal in the U.S., or at least that is what is claimed as part of the "rule of law" to pretend legitimacy of judicial power in this country.
Now a series of ex parte communications in the Argro case that I just blogged about today -
- a motion against me was made, scheduled (twice) and orally argued ex parte;
- my own motion, which was filed on notice and initially scheduled on notice to me, was discussed ex parte in an ex parte personal appearance not noticed to me, rescheduled in that ex parte proceeding and the transcript of the ex parte proceeding was sealed and made secret from me and the public.
I understand that to unseal my disciplinary proceedings in state and federal court, allow the public to the Mokay trial, hold the Mokay trial as it was supposed to be held, with a jury, and with public observers, allowing me full due process in motion practice in the Argro case - would be a disaster for those who would like to conceal their own misconduct.
But, openness and transparency of court proceedings is designed exactly for that purpose - so that the public would see that the integrity of court proceedings are not undermined.
The pattern of behavior of state and federal courts towards me and my husband - at least through the secret orders, withheld documents, secret proceedings and ex parte communications - show that there is plenty to hide for the government and connected attorneys the government colludes with.
The pattern is only aggravated by the fact that secret proceedings and secret orders usually appear after we either make a "sensitive" Freedom of Information request with the court system, or file a lawsuit against a public official seeking such sensitive information.
Of course, the tactic of making any proceedings, or orders, secret, only proves that persecution against my husband and myself is politically motivated.
But, at this point the judiciary in the U.S. has become so brazen and shameless (because of self-gifted absolute immunity for malicious and corrupt acts) that they do not really care.
Well, sometimes when judges do not really care about criminality of their actions, they can go too far, and finally, at some point, after some media campaign, the system is not comfortable any longer in associating with criminals.
I am not naive to believe that all of the judges who routinely commit misconduct (including those who engaged in ex parte communications and secret court proceedings and decisions) will suffer any discipline - after all, the judiciary and legal establishment has made sure that those who handle judicial discipline are either judges themselves, or are heavily depending for their own livelihood upon judges - but lately, according to recent court cases, social media and even mainstream media - something has started to give in the court of public opinion regarding rampant judicial misconduct in this country.
It appears that the tide is turning, and not so slowly, by the way.
Let's see what happens.
NDNY Magistrate David Peebles continues to pretend he is still a magistrate, and continues to engage in misconduct after his term as a magistrate expires
I continue to publish a story as to how the U.S. District Court for the Northern District of New York, faced with my motion to recuse and vacate its previous unlawful decision to strip me of 3.5 years worth of my work as an attorney in a civil rights case, started to engage in ex parte communications with parties about me and to manipulate the court docket.
I wrote about the court's efforts to issue a secret illegal order of suspension against me and efforts of the new attorney for the Plaintiffs, in collusion with the attorney for the Defendants, to then strip me of my legal fees, you can look up those blog posts by entering the word "Argro" in the search box on the right in this blog.
As of 3/3/2016, as the docket shows, the Plaintiffs were forced by the court to use the services of the attorney who they fired for fraud and to settle a multi-million dollar lawsuit for an amount, if prior position of the Defendants is any guide, lower than the deductible in Defendants' liability insurance policy.
By the way, since the Defendants were settling for the amount they had to pay out of pocket anyway (lower than the $50,000 deductible under the Chenango County liability insurance policy that I obtained through FOIL recently), and since they were settling a case which was alleging intentional misconduct which is not allowed to be covered by insurance under New York law, settlements in the case could not be obtained without direct authorization of parties.
Yet, at all settlement conferences after the court - allegedly - suspended me (there is no public order of suspension available on Pacer.gov) the court required personal appearances only of the three plaintiffs, for whom appearance in Syracuse from Chenango County where they live, was a financial burden, and is a huge personal burden for one of the Plaintiffs who is a wheelchair-bound severely disabled 89-year-old woman - but not of defendants.
No appearances of the Defendants at such conferences was required by the court, so it is apparent that the court was in collusion with the Defendants to coerce Plaintiffs into a settlement.
Actually, in the pleading I belatedly received from the Plaintiffs then-fired attorney Woodruff Carroll on June 9, 2016 (while my response to that pleading was due in court on June 6, 2016), Carroll admits that it was the magistrate (now former magistrate who nevertheless continues to "serve" as magistrate) David Peebles who "urged" parties to settle.
So, the court did not want to try the case, possibly in collusion with the defendants, and, since I was directed by the plaintiffs to try the case, I was suspended through a secret order, stripped of my legal fee for 3.5 years of litigation, the court refused to allow Plaintiffs to even fire their own counsel for fraud, and the court openly put pressure upon three indigent civil rights plaintiffs to forego the jury trial that they wanted (and could receive a multi-million dollar verdict) and agree to a settlement lower than the $50,000 deductible in Defendants' insurance policy.
Misconduct against the indigent plaintiffs in the Argro case is just one aspect of the saga that is currently unfolding.
Other serious aspects are:
Yesterday night, after 5 p.m., I downloaded the docket report of the Argro case which I last downloaded on June 8, 2016 - and as of June 8, 2016 it did not contain any information after June 3, 2016, the last entry as of June 8, 2016 was of June 2, 2016.
On June 10, 2016, there appeared several entries in the docket, including a belated acknowledgement that I filed (and the court received, I have a delivery confirmation) an Affirmation in Reply declaring a default on my motion to vacate, recuse and for sanctions.
The docket also contains an interesting entry - without a docket number - as to what has allegedly transpired in court on June 3, 2016, an appearance not noticed to me.
On June 3, 2016 the court did the following:
1) reviewed an ex parte (as to me) motion to withdraw of Plaintiffs attorney Woodruff Carroll who was fired on May 20, 2016 for fraud and for offering Plaintiffs $100,000 in exchange for a settlement and for filing a false affidavit against me;
2) reviewed an ex parte motion, Docket 124, for an anti-filing injunction and to strip me of a future opportunity to file for attorney fees against Defendants under 42 U.S.C. 1988(b) if Plaintiffs prevail in litigation.
The motion was ex parte on many levels.
The motion was never served upon me, which is confirmed in the certificate of service of Defendants' counsel Erin Donnelly who served - by e-mail - Plaintiffs' attorney Woodruff Carroll AND HERSELF, Docket 125.
The initial scheduling order, with deadlines to respond to the motion within 4 days of filing, over the Memorial day weekend, was never served upon me by the court.
The subsequent scheduling order of June 2, 2016, moving the review date of the ex parte motion to the next day, June 3, 2016, from the initial ex parte scheduling date of June 15, 2016, with personal appearances, was never served upon me.
I learnt about the ex parte scheduling order of June 2, 2016 (but not about the text entry of June 3, 2016 which did not appear in the docket until the end of this week) by downloading the docket report, at my own expense, from Pacer on June 4, 2016, after the hearing/oral argument on the ex parte motion already occurred.
Yesterday, after downloading the docket report, I learnt that
That is not all that David Peebles did though.
He also issued yet another ex parte order manipulating the motion to recuse him, vacate the previous illegal order of the court stripping me of legal fees, and for sanctions against attorneys for Plaintiffs and Defendants for fraud.
Here is what David Peebles did as to the motion that was scheduled to be heard in front of Judge Mordue and not in front of David Peebles at all.
On May 13, 2016 I filed a motion to vacate, recuse and for sanctions against attorneys Woodruff Carroll and Erin Donnelly for fraud.
My motion, received by the court on 5/13/2016, was only entered on 5/17/2016, after I blogged about the court's manipulation of the docket.
The court issued a scheduling order on that motion - the only one that I received by regular mail from the court.
The scheduling order set the following deadlines:
Plaintiffs and Defendants defaulted on the deadline to oppose the motion on 5/31/2016. The docket now shows some filings made on that date, but I received a filing from the Plaintiffs by regular mail only on June 8, 2016, 2 days after my response to that pleading was supposed to be already filed in New York (and I do not have a right to file by e-filing, so I have to do it by mail and add time for mailing it in).
And, I received nothing from the Defendants, so whatever the Defendants filed on May 31, 2016 (as the docket shows, I did not download the Defendants' filings), was never served upon me - kind of a "sewer service".
When a deadline to oppose a motion is missed, all factual issues are waived and parties who failed to oppose are deemed in default of the motion, which has to be granted to the moving party by default if the motion is meritorious.
There is no question that my motion is meritorious. It is based on clear precedent, statutory law and indisputable evidence.
So, by my deadline, 6/6/2016, having received nothing from either of the parties, I filed an Affirmation in Reply and a Memorandum of Law declaring a default on the motion.
Yet, without notice to me, 3 days prior David Peebles (who pretends to be a magistrate while his term expired by May 21, 2016 and for whom a public order of reappointment was not published up to this day) forgave the default of both Plaintiffs and Defendants on the motion and gave Plaintiffs and Defendants, based on their ex parte request without notice to me, additional time to oppose my motion filed on May 13, 2016 - until June 17, 2016.
June 17, 2016 is 2 days after the motion hearing set for that motion for June 15, 2016.
No deadline was set for me to reply to that belated opposition, so I am not allowed to file a reply.
There is no explanation in the docket as to the reason for such a blatant violation of the court's own rules of motion practice in order to help parties survive the default on my motion and block me from replying to the parties new and belated opposition.
Local court rules, as well as Federal Procedure, does not allow pleadings beyond the reply. Usually, non-moving party do not get the benefit of responding to a reply, because the reply is the last filed pleadings on a motion.
Here, David Peebles changed that, behind my back, at an ex parte in-person hearing of ex parte motions scheduled in an ex parte manner - and sealed the transcript containing the ex parte communications of the parties and counsel regarding rescheduling my motion, or discussions of the ex parte motion filed, but not served upon me by the Defendants.
This entire circus - including my secret suspension allegedly of November 18, 2016 (there is no public order of suspension) unfolded after I filed on November 16, 2016 a motion to recuse the court in another case, based on massive documentary evidence of the court's misconduct - and that motion is still unresolved, but, as a result of that motion:
I wrote about the court's efforts to issue a secret illegal order of suspension against me and efforts of the new attorney for the Plaintiffs, in collusion with the attorney for the Defendants, to then strip me of my legal fees, you can look up those blog posts by entering the word "Argro" in the search box on the right in this blog.
As of 3/3/2016, as the docket shows, the Plaintiffs were forced by the court to use the services of the attorney who they fired for fraud and to settle a multi-million dollar lawsuit for an amount, if prior position of the Defendants is any guide, lower than the deductible in Defendants' liability insurance policy.
By the way, since the Defendants were settling for the amount they had to pay out of pocket anyway (lower than the $50,000 deductible under the Chenango County liability insurance policy that I obtained through FOIL recently), and since they were settling a case which was alleging intentional misconduct which is not allowed to be covered by insurance under New York law, settlements in the case could not be obtained without direct authorization of parties.
Yet, at all settlement conferences after the court - allegedly - suspended me (there is no public order of suspension available on Pacer.gov) the court required personal appearances only of the three plaintiffs, for whom appearance in Syracuse from Chenango County where they live, was a financial burden, and is a huge personal burden for one of the Plaintiffs who is a wheelchair-bound severely disabled 89-year-old woman - but not of defendants.
No appearances of the Defendants at such conferences was required by the court, so it is apparent that the court was in collusion with the Defendants to coerce Plaintiffs into a settlement.
Actually, in the pleading I belatedly received from the Plaintiffs then-fired attorney Woodruff Carroll on June 9, 2016 (while my response to that pleading was due in court on June 6, 2016), Carroll admits that it was the magistrate (now former magistrate who nevertheless continues to "serve" as magistrate) David Peebles who "urged" parties to settle.
So, the court did not want to try the case, possibly in collusion with the defendants, and, since I was directed by the plaintiffs to try the case, I was suspended through a secret order, stripped of my legal fee for 3.5 years of litigation, the court refused to allow Plaintiffs to even fire their own counsel for fraud, and the court openly put pressure upon three indigent civil rights plaintiffs to forego the jury trial that they wanted (and could receive a multi-million dollar verdict) and agree to a settlement lower than the $50,000 deductible in Defendants' insurance policy.
Misconduct against the indigent plaintiffs in the Argro case is just one aspect of the saga that is currently unfolding.
Other serious aspects are:
- manipulating the docket with claims that certain entries were made before they were actually made;
- delays in docket entries of filings that arrived by regular mail;
- shameless admitted ex parte communications as to me, including ex parte motions, ex parte orders and ex parte hearings; and
- sealing the transcripts of such ex parte hearings against me.
Yesterday night, after 5 p.m., I downloaded the docket report of the Argro case which I last downloaded on June 8, 2016 - and as of June 8, 2016 it did not contain any information after June 3, 2016, the last entry as of June 8, 2016 was of June 2, 2016.
On June 10, 2016, there appeared several entries in the docket, including a belated acknowledgement that I filed (and the court received, I have a delivery confirmation) an Affirmation in Reply declaring a default on my motion to vacate, recuse and for sanctions.
The docket also contains an interesting entry - without a docket number - as to what has allegedly transpired in court on June 3, 2016, an appearance not noticed to me.
On June 3, 2016 the court did the following:
1) reviewed an ex parte (as to me) motion to withdraw of Plaintiffs attorney Woodruff Carroll who was fired on May 20, 2016 for fraud and for offering Plaintiffs $100,000 in exchange for a settlement and for filing a false affidavit against me;
2) reviewed an ex parte motion, Docket 124, for an anti-filing injunction and to strip me of a future opportunity to file for attorney fees against Defendants under 42 U.S.C. 1988(b) if Plaintiffs prevail in litigation.
The motion was ex parte on many levels.
The motion was never served upon me, which is confirmed in the certificate of service of Defendants' counsel Erin Donnelly who served - by e-mail - Plaintiffs' attorney Woodruff Carroll AND HERSELF, Docket 125.
The initial scheduling order, with deadlines to respond to the motion within 4 days of filing, over the Memorial day weekend, was never served upon me by the court.
The subsequent scheduling order of June 2, 2016, moving the review date of the ex parte motion to the next day, June 3, 2016, from the initial ex parte scheduling date of June 15, 2016, with personal appearances, was never served upon me.
I learnt about the ex parte scheduling order of June 2, 2016 (but not about the text entry of June 3, 2016 which did not appear in the docket until the end of this week) by downloading the docket report, at my own expense, from Pacer on June 4, 2016, after the hearing/oral argument on the ex parte motion already occurred.
Yesterday, after downloading the docket report, I learnt that
- the ex parte motion, Docket 124 asking for remedies against me by name;
- which was never served upon me, Docket 125;
- which was scheduled by an ex parte scheduling order on May 27, 2016 for a hearing on June 15, 2016 before Judge Norman Mordue, and
- which was rescheduled on June 2, 2016 by another ex parte scheduling order to be heard with personal appearances of Plaintiffs and attorneys for Plaintiffs and Defendants, but not me, for the next day, June 3, 2016;
- was actually heard without my presence or notice to me by David Peebles, a former magistrate whose term expired on May 21, 2016; and
- the transcript of those ex parte communications was sealed by David Peebles.
That is not all that David Peebles did though.
He also issued yet another ex parte order manipulating the motion to recuse him, vacate the previous illegal order of the court stripping me of legal fees, and for sanctions against attorneys for Plaintiffs and Defendants for fraud.
Here is what David Peebles did as to the motion that was scheduled to be heard in front of Judge Mordue and not in front of David Peebles at all.
On May 13, 2016 I filed a motion to vacate, recuse and for sanctions against attorneys Woodruff Carroll and Erin Donnelly for fraud.
My motion, received by the court on 5/13/2016, was only entered on 5/17/2016, after I blogged about the court's manipulation of the docket.
The court issued a scheduling order on that motion - the only one that I received by regular mail from the court.
The scheduling order set the following deadlines:
- Response deadline for Plaintiffs and Defendants - 5/31/2016
- My reply to response 6/6/2016.
- Motion hearing set for 6/15/2016
Plaintiffs and Defendants defaulted on the deadline to oppose the motion on 5/31/2016. The docket now shows some filings made on that date, but I received a filing from the Plaintiffs by regular mail only on June 8, 2016, 2 days after my response to that pleading was supposed to be already filed in New York (and I do not have a right to file by e-filing, so I have to do it by mail and add time for mailing it in).
And, I received nothing from the Defendants, so whatever the Defendants filed on May 31, 2016 (as the docket shows, I did not download the Defendants' filings), was never served upon me - kind of a "sewer service".
When a deadline to oppose a motion is missed, all factual issues are waived and parties who failed to oppose are deemed in default of the motion, which has to be granted to the moving party by default if the motion is meritorious.
There is no question that my motion is meritorious. It is based on clear precedent, statutory law and indisputable evidence.
So, by my deadline, 6/6/2016, having received nothing from either of the parties, I filed an Affirmation in Reply and a Memorandum of Law declaring a default on the motion.
Yet, without notice to me, 3 days prior David Peebles (who pretends to be a magistrate while his term expired by May 21, 2016 and for whom a public order of reappointment was not published up to this day) forgave the default of both Plaintiffs and Defendants on the motion and gave Plaintiffs and Defendants, based on their ex parte request without notice to me, additional time to oppose my motion filed on May 13, 2016 - until June 17, 2016.
June 17, 2016 is 2 days after the motion hearing set for that motion for June 15, 2016.
No deadline was set for me to reply to that belated opposition, so I am not allowed to file a reply.
There is no explanation in the docket as to the reason for such a blatant violation of the court's own rules of motion practice in order to help parties survive the default on my motion and block me from replying to the parties new and belated opposition.
Local court rules, as well as Federal Procedure, does not allow pleadings beyond the reply. Usually, non-moving party do not get the benefit of responding to a reply, because the reply is the last filed pleadings on a motion.
Here, David Peebles changed that, behind my back, at an ex parte in-person hearing of ex parte motions scheduled in an ex parte manner - and sealed the transcript containing the ex parte communications of the parties and counsel regarding rescheduling my motion, or discussions of the ex parte motion filed, but not served upon me by the Defendants.
This entire circus - including my secret suspension allegedly of November 18, 2016 (there is no public order of suspension) unfolded after I filed on November 16, 2016 a motion to recuse the court in another case, based on massive documentary evidence of the court's misconduct - and that motion is still unresolved, but, as a result of that motion:
- I am - secretly, allegedly - suspended;
- I am removed from a case against social services I litigated since the summer of 2012 that was scheduled for trial as of, "coincidentally", November 13, 2015;
- the court and the parties' counsel do not bother to serve me with motions or scheduling orders directly relating to my rights, hold in-person hearings regarding my rights behind my back without notice to me and seal contents of transcripts of such hearings, the misconduct is shameless and quite blatant, it is reflected in the docket, as if ex parte communications are now legitimate - at least as to me
I will continue to cover the story of the court's misconduct - I am holding my breath as to what the court will be deciding about me based on its ex parte communications on June 3, 2016.
Of course, such a decision will be blatantly illegal, but illegality did not stop NDNY court so far in regards to making decisions about me or my husband.
Stay tuned.
Friday, June 10, 2016
Donors to Catholic churches in New York contribute to the church's lobbying efforts to deny a remedy to victims of sex crimes
Several years ago I filed a lawsuit on behalf of a victim of sexual abuse (that occurred when the victim was a minor) against the perpetrator of such abuse.
The perpetrator immediately opposed the lawsuit claiming that the lawsuit is precluded by the statute of limitations.
Of course, the same perpetrator was threatening to kill the victim if she would complain about the abuse, and did it exactly for the duration of the statute of limitations that exists in New York for such crimes and civil lawsuits.
Of course, in civil court, a perpetrator who would preclude the victim, by threats, from filing such a lawsuit, would be equitably estopped from raising the statute of limitations.
But that is - in a fair court.
In the court where it was happening, the perpetrator was protected by a local powerful judge, and the victim was afraid to proceed with the lawsuit.
The statute of limitations in sex crimes is a big problem.
When sex abuse against children occurs, it takes courage for the victim to come forward and testify.
In many states, there are no statutes of limitations in sex crimes, and, I would say, that should be the law in all jurisdictions.
(1) repeal the 5-year statute of limitations (which limits filing of lawsuits by the victim until 5 years after reaching the age of majority, which is 18 + 5 = 23 years of age in New York);
(2) give the previously time-barred victims a 1-year window to file their lawsuits.
You know what organization actually put millions of dollars into lobbying in opposition to the bill?
I do not see Governor Cuomo though issuing any executive orders prohibiting to pour public money into the coffers of various organizations owned and operated by Catholic Church - like he recently did in support of a foreign country, the State of Israel (for which he had no authority whatsoever, as it was a matter of federal national foreign policy).
Churches are public charities receiving tax exemptions from the IRS on the condition that they will not engage in politics.
Catholic Church in New York clearly engaged in politics, attempting to prevent introduction of a certain law that has a potential to bankrupt the church and expose many priests to civil lawsuits, and, possibly, criminal prosecutions, which are currently time-barred.
Here is the text of New York Child Victims Act.
So far, according to the New York Senate's website, the bill is still in the "Committee" - for 3 years, since 2013 when it was introduced.
And the reason why is because it has been stalled by the Catholic Church's lobbying efforts.
When you go to church next time and are expected to donate, please, think what you are donating for.
Because your money has been used so far for lobbying efforts to deny victims of sex abuse - including victims of the clergy, including child victims - a right to a remedy.
Once again on contempt of court - a federal judge from Ohio #DanPolster plays God with his power
Yesterday, on June 9, 2016, the U.S. Supreme Court reversed a case where a former prosecutor, after becoming a judge, refused to recuse from a case where he was a prosecutor and pursued death penalty (by conduct of his subordinates involving fraud upon the court and eliciting perjury) and rejected several habeas corpus petitions and reinstated the death penalty of a criminal defendant.
The name of the case is Williams v Pennsylvania, the name of the judge (now former Chief Judge of the Supreme Court of the State of Pennsylvania) is Ronald Castillo, and I will post a separate blog, or several separate blog about that case, it deserves a detailed issue-by-issue review.
The court relied, among other cases, upon the case In re Murchison, decided in 1955, that is, 61 years ago, where a judge acted in a contempt of court proceedings as prosecutor, judge and jury - accusing individuals of contempt of court, presiding over their contempt proceedings and sentencing them.
Such behavior, where the judge is both the accuser and the adjudicator, was ruled to be a due process violation.
The day before yesterday, on June 8, 2015, a federal district court in Ohio, a federal district judge Dan Polster did exactly what the U.S. Supreme Court just reversed the case for - and what the U.S. Supreme Court in In Re Murchison ruled to be a due process violation.
Judge Dan Polster:
1) started a contempt proceeding against an attorney John V. McDermott - who is not listed as the attorney of record in the case, I checked on Pacer.gov - for allegedly not appearing at court proceedings; and
2) has all intent to presiding over them as a judge - in violation of attorney McDermott's due process rights.
Once again, Attorney McDermott is not listed as attorney of record in the case where the bench warrant was issued.
Here is the letter Attorney McDermott sent to the judge that was filed yesterday.
In the letter, attorney McDermott indicates that he:
1) is not attorney of record in the case;
2) is not admitted in the state or federal court in Ohio; and thus
3) is not subject to jurisdiction of the court;
4) will not drop everything in New Jersey where he works and fly to Ohio at the last minute because the court simply wanted him to be there.
The letter was filed, according to the docket report, yesterday, on June 9, 2016.
On June 7, 2016 Judge Dan Polster granted Defendant Gary McDermott motion to dismiss the case against him.
At the same time, Judge Dan Polster was very upset that Defendant Gary McDermott did not appear at the case management conference held on the same date.
It is apparent that presence of defendant whose case was going to be dismissed was not needed, and the judge's ire about that was simply raw - and unreasonable - exercise of power.
Yet, the judge questioned Gary McDermott who told him not to appear at the case management conference on the day when the lawsuit against him was dismissed by Judge Polster.
According to Judge Polster's order issued the next day, on June 8, 2016, Gary McDermott stated under oath that "attorney John McDermott" advised him not to appear at the case management conference.
Attorney John McDermott was not, once again, attorney of record in that case, nor was he admitted to practice law in the state of Ohio, or in the Northern District Court for the District of Ohio - as attorney McDermott explained to Judge Polster, without waiving lack of personal jurisdiction, in his letter of June 9, 2016.
Judge Polster never had jurisdiction over attorney McDermott, and his order to appear was blatantly illegal.
Non-appearance of Gary McDermott on the date of the case management conference, June 7, 2016, did not make any difference and did not cause any prejudice to anybody because the same judge dismissed the lawsuit against Gary McDermott on the date of the case management conference.
It was clear that there was no point to order appearances in any show cause proceedings, and especially to do that in person, and to order an appearance of a person who was never an attorney of record, not admitted in that court as an attorney and lives and works in another state.
Judge Polster had even less grounds to order such an appearance the next day. He must have been aware that a busy attorney such as John McDermott could not simply drop everything he was doing in his large law practice and fly to Ohio on a one-day notice that was never served upon him personally or by mail.
Since John McDermott was not attorney of record in that case, he was not subject to electronic notifications.
There is no indication in the docket that attorney McDermott was even served with the order to appear.
It was a matter of courtesy by attorney McDermott - and, probably, a wrong move - to send any letters to the judge acknowledging that he knows about the order issued the previous day, with which John McDermott was never served.
Such a courtesy cost John McDermott dearly - Judge Polster issued a bench warrant when John McDermott, naturally, did not appear on June 9, 2016 at the "Order to Show Cause" hearing.
Moreover, Judge Polster, reportedly, said on Wednesday, that is, on June 8, 2016, before John McDermott's ordered appearance in court on June 9, 2016, that McDermott "will be arrested and he will sit for a good while until I see him," according to the transcript. "If he doesn't like that he can go to the Sixth Circuit or Supreme Court."
So,
- not only Judge Polster had no jurisdiction over John McDermott and had no authority to order him to appear in federal court in Ohio, especially the next day from the order;
- not only the order was never served upon John McDermott;
- not only Judge Polster had no right to preside over the contempt proceeding that he initiated as an accuser - as the U.S. Supreme Court ruled in In Re Murchison in 1955 and in Williams v Pennsylvania as of June 9, 2016, but
- Judge Polster certainly had no right to pre-judge that case by saying that he will first put John McDermott in jail, keep him there "for a good while" and only then review whether John McDermott should have been put in jail in the first place.
This as a very clear case of judicial misconduct.
Attorney John McDermott claimed he will file a complaint against Judge Polster because of it.
Yet, I doubt very much that the complaint will be reviewed, because the judge's misconduct is related to a court proceeding, and such complaints against federal judges are dismissed without review.
But, since a prominent member of legal community John McDermott is the victim of egregious judicial misconduct here, I wonder if he and his friends would pull some weight and have rules of judicial discipline in federal courts revised.
Because in this country only the law of connections work - for good or for bad.
I will continue to cover this story.
Stay tuned.
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