The exciting correlations of how attorneys for NYS Office of Court Administration are paid and how they suck up to the system - the "armadillo" correspondence continues

Yesterday, I published a blog describing how an attorney disciplinary prosecutor ducks FOIL requests by insinuating that it is not a prosecuting agency, but is "part of the court" - which, of course, makes the entire attorney disciplinary system in New York State void in view of the recent precedent of the U.S. Supreme Court Williams v Pennsylvania which makes void decisions produced by a court also acting as a prosecutor.

I compared the games of a public disciplinary prosecutor trying to wear an impossible combination of hats to Kipling's fairy tale where a hedgehog and a tortoise confuse a baby jaguar out of a hunting trophy, to the point of making his spots ache.

The confusion game continued today, when I received an e-mail letter from the Assistant Deputy Counsel for the New York State Court Administration Ms. Shawn Kerby, which I am publishing in full below. 

As a background note, Ms. Kerby has been handling FOIL requests directed at the New York State Office of Court Administration (my FOIL request was not directed at her client, only at the public prosecutor Attorney Grievance Committee of the 3rd Department) for years in my personal experience, and, likely, for decades judging on her length of employment with New York State Office of Court Administration.

Seethroughny.net only has records on salaries of public officials starting from 2008.

Here is the salary of attorney Shawn Kerby from 2008 to 2016, according to Seethroughny.net:

           Rate       Actually paid

2008	$ 115,000.00	$   85,631.00
2009	$ 115,000.00	$   82,739.00
2010	$ 115,000.00	$   82,829.00
2011	$ 115,000.00	$   92,238.00
2012	$ 115,000.00	$ 118,272.00
2013	$ 133,287.00	$ 154,488.00
2014	$ 140,248.00	$ 120,051.00
2015	$ 143,054.00	$ 123,507.00
2016	$ 145,916.00	$ 129,944.00

2008 - with the pay rate of $115,000 attorney Kerby was actually paid $85,631 for the year 2008, I wonder what caused a $29,369 cut.

2009 - attorney Kerby was paid even less, $82,739 - $32,261 less than the previous year's rate of pay.

2010 - attorney Kerby was paid $82,829, that is $32,171 less than her annual rate of pay. 

2011 - attorney Kerby was paid $92,238 against her annual pay rate of $115,000, and thus lost $22,762 that year:

So, in 2008-2011, attorney Kerby lost, respectively,

34.30%,

38.99%,

38.84%, and 24.68%

of her salary, which means she worked less than 2/3rds of her required work time per year in 2008 through 2010 and only 3/4 of the required time in 2011.

When a full-time worker consistently works less than full time (and is not fired) there should be a reason for it.


That is already very interesting, and shows attorney Kerby's dependency on what her client would tell her to do, legal or illegal. But, let's go on.

Also, note that in 2008-2011 attorney Kerby's salary, her annual pay rate, was stagnant at $115,000 per year.


In 2012, the rate was still the same, $115,000, but attorney Kerby not only worked 100% of her time that year, but actually made $3,272 in overtime:

After the revolutionary 2012 year, when attorney Kerby worked 2.77% more than required by her job, her pay rate jumped.  A lot. 

In 2013, attorney Kerby's annual pay rate was already $133,287, that is 15.9% more than the annual pay for the previous year.  Moreover, in the year 2013, attorney Kerby continued to put in overtime - she was paid $154,488 that year, a whopping $21,201, or 13.72% in overtime.

After 2013, the trend of salary increase continued, but the trend of putting in 100% of work time, and overtime, discontinued, and attorney Kerby returned to putting in less than 100% of her working time.

In 2014, attorney Kerby's pay rate further jumped to $145,916, a 6.05% increase as compared to the year 2013, and a $21.95% increase as compared to the years 2008-2011 when she consistently worked from 25% to 39% less of the time, until she put in a little overtime (less than 3%) in 2012, and then her salary started to rise.

Yet, in the same 2014, attorney Kerby returned to working less than full time in a full time job - she worked, and was paid, $20,197, or 16.82% less than her full annual rate pay, while her pay rate continued to increase.

This trend continued in 2015, when attorney Kerby's pay rate increased 2% as compared to the previous year, 2014 (when she worked less than full time) and 24.39% as compared to the stagnant stretch of 2008-2012 when she worked less than full time in 5 out of those 6 years.

At the same time her annual pay increased in 2015, attorney Kerby continued to work part-time in a full time job, losing $19,547, or 15.83% of her pay that year.

So, while working less, attorney Kerby continued to have her annual rate increase.

That trend continued in 2016, too, when attorney Kerby lost $15,972, or 12.29% of her annual pay, but got a 2% salary increase as compared to the previous year, 2015, and a 26.88% salary increase as compared to the stagnant stretch of 2008-2012.

What can I say?

It is a very nice job where an attorney is allowed to work less than 100% of the time in a full-time position that pays 3 times or more what an average New Yorker is paid, works MUCH less than full-time in 7 out of 9 most recent years of employment, and still receives pay raises.

Questions that arise is - who attorney Kerby is related to, and, if that is not about a relationship, how does this unusual leniency of her employer affects attorney Kerby's loyalty to the law above her loyalty to the employer, as required of her by her attorney oath of office?

Judging by the letter she has sent to me today by e-mail, her loyalty to her oath of office was firmly trampled in favor of her loyalty to her most lenient employer.

Here is what attorney Kerby wrote to me today about my FOIL request for motion records that an attorney prosecuting agency, the Attorney Grievance Committee for the 3rd Department (hereinafter ACG3) that was denied as a FOIL request and reiterated as a Judiciary Law 255 request, as if I was not asking a public prosecutor for public records, but I was asking a court for court records.

Here is attorney Kerby's letter:

I diligently followed the suggested links.

The link http://www.nycourts.gov/foil/ contains the following information

I did not ask "the Unified Court System" for any information, I asked a public prosecutor for information.

New York State Court Administration indicates, specifically, in so many words, that "court records, however, are not subject to disclosure under FOIL.  Public Officers Law 86". 

Yet, Public Officers Law 86 says nothing of the kind.  Here is what it does say:

Public Officers Law 86 says, in its subsection 4, that a "record" "means any information kept, held, filed, produced or reproduced by, with or for an agency".

So, if a record is kept by an agency (motion papers served by attorney Castillo upon ACG3 and kept on file with ACG3 as a prosecutor), or produced by an agency (opposition papers drafted by ACG3 and kept on file with ACG3), such records are clearly subject to FOIL requests.

So, attorney Kerby's claim that "the process regarding access to court records, to which FOIL does not apply, is set forth" by the New York State Court Administration in the way shown at the referenced link:



is frivolous and misleading, because:

1. No agency sets rules of access to records through FOIL, only the statute does; and because
2. FOIL does apply to court records, if such records are " kept, held, filed, produced or reproduced by, with or for an agency" (Public Officers Law 86) subject to FOIL - and a public prosecutor certainly is such an agency.

Yet, let's look at the second link that attorney Kerby referred me to:

I satisfied those requirements by specifically describing the records I was seeking, but, since I did not seek "administrative records" from the New York State Office of Court Administration, I did not need to file my FOIL request with Shawn Kerby directly - I only needed agency records from a public prosecutor, Attorney Grievance Committee for the 3rd Department.

So, here is what I replied today to attorney Kerby:

What is really going on here is that the New York judiciary is caught red-handed in a messy situation: exposure of the true reason why attorney regulation is handled by the judicial branch rather than the executive branch - which regulates all other 129 of the regulated professions in New York.

The reasons are quite simple: by placing regulation of attorney licenses with the judiciary branch, actors involved can "change colors" as it fits the situation:

1. they can claim to be prosecutors for purposes of - surprise! - prosecuting attorneys in disciplinary proceedings,
2. they claim to be prosecutors for purposes of claiming prosecutorial immunity in civil rights proceedings;

BUT, at the very same time they claim to be "part of the court" and thus not subject to FOIL requests if FOIL requests are filed with them as with any other prosecutor in the State of New York, where all prosecutors are agencies subject to FOIL requests.

Such a chameleon color-changing though creates a further mess, because, according to the latest U.S. Supreme Court precedent in Williams v Pennsylvania, 579 U.S. __ (2016), decided last June,

A prosecutor MAY NOT be "part of the court".

If any judge in any other court proceedings claims that one of the parties is "part of the court", he is subject to immediate disqualification.

Imagine a criminal proceeding where the District Attorney claims to be "part of the court" - for any reason and for any purpose.

There is nothing different when the government prosecutor is prosecuting a so-called "civil" case (while the U.S. Supreme Court long ago considered proceedings in attorney discipline quasi-criminal in nature).

A party has a constitutional right to an impartial court.

That right does not exist if a prosecutor claims to be "part of the court" for any purpose whatsoever.

Apparently, attorney Kerby, by trying to get one foot out of this conceptual sinkhole, is sinking her other foot there - and is acknowledging that the entire attorney disciplinary system in New York State is unconstitutional, as handled by "accuser-adjudicator" courts in violation of due process of law, and the recent precedent of the U.S. Supreme Court.

Attorneys who try to defend what judges consider indefensible (like, for example, in my case, for making motions to recuse a biased and corrupt judge), are sanctioned "for frivolous conduct" and suspended from the practice of law.

Yet, when an attorney who defends the court system itself does it, and does it on behalf of attorney disciplinary system, I am sure she is entitled to a medal.

Or a pay raise and more free time off work.

The 4th Circuit further victimizes a homeless victim of a police dog mauling by denying him a constitutional remedy in an inhumane and openly fraudulent decision. The dissenting judge is a good candidate to be nominated to the U.S. Supreme Court though. Courageus and honest.

The U.S. Court of Appeals for the 4th Circuit, a federal appeallate court that covers several southern states:

made a decision in 1998 ruling in favor of a woman mauled by a police dog.

In its decision

the 4th Circuit has found that:

1) the Fourth Amendment governs cases of police dogs mauling civilians;
2) the police officer and other defendants are not entitled to the so-called "qualified immunity" for their actions because 4th Amendment rights of the victim in that case were clearly established.

The 4th Circuit has ruled that it was clearly established back in 1995 that a police officer releasing a dog upon a civilian must give the civilian a verbal warning indicating that the dog is being released, apparently giving the civilian an opportunity to surrender without such release of a dog.

The 4th Circuit ruled that a summary judgment could not be given to the police officer on the 4th Amendment claim regarding mauling of the victim by the police dog, and the case was reversed and remanded for trial.

So, in the 4th Circuit claims of victims mauled by police dogs under the 4th Amendment were clearly established and police officers were not entitled to qualified immunity since 1995.

Yet, 22 years after that precedent, the same 4th Circuit has ruled in an "unpublished" plurality opinion (where one judge out of three wrote the "majority" opinion, the other wrote a "concurring" opinion and the third wrote a dissenting opinion) in a diametrically opposite way, now giving a police officer who did not recall a dog from mauling an innocent homeless man and let him maul him some more, a qualified immunity, claiming that 4th Amendment rights of the victim were not "clearly established law" in the 4th Circuit.

The homeless victim of mauling by a police dog, where the officer intentionally delayed to recall the dog, allowing the dog to maul the victim some more, the court addressed its prior decision of 1998 - and refused to follow it:

The court reviewed its own refusal in 2010 to apply the 1995 and 1998 precedent on the subject when the 4th Circucit granted qualified immunity to a police officer after a police dog mauled a child:

The 4th Circuit recognized that that distinction was not good - giving the child victim in the 2010 case will now be able to vacate that decision:

Yet, after recognizing that its refusal in 2010 to follow its own 1995 and 1998 precedent as to police dogs mauling people was wrong, the court now refused to comply with that same 1995 and 1998 precedent on other grounds.

The court first described how the qualified immunity was denied - in a case dealing with suspects of an armed robbery:

The court then proceeded comparing the case where the same court gave suspects of an armed robbery their right to a remedy under the 4th Amendment against the police officer for mauling by the dog:

as a justification of not giving the same remedy to an innocent man mauled by a police dog:

Of course, the 4th Circuit engaged in what is called "intellectual dishonesty" in claiming that "there is no indication that Appellee gratuitously prolonged the biting after determining that Appellant was unarmed and surrendering" - because the victim was specifically asserting that in the lawsuit.

Moreover, in the very first paragraph of his "majority" opinion, judge Thacker did confirm that the police officer ordered the victim, who was protecting himself from being mauled to death with his hands, to show his hands as a condition to call the mauling off - even after the officer realized that the man before him did not match the description of the suspect he was seeking.

The dissent, in fact, pointed out that the mauling by the dog was a deliberate decision of the police officer - the mauling was meant as a tool to rule out that the victim did not pose a threat:

Judge Harris pointed out that the police officer had no basis even for a brief investigative stop under the circumstances of the case, and seizure of the victim, much less a seizure by a mauling dog, was not justified, and that it was the police officer who was supposed to give the "clearly established law"-warning of the dog attack, which he admittedly failed to do:

Judge Harris then points out the obvious:

Judge Harris pointed out that, since Terry in itself is a questionable application of the 4th Amendment, an EXCEPTION from the 4th Amendment requiring only "reasonable suspicion", instead of a "reasonable cause" for the stop, the stop should be minimally intrusive - being mauled by a dog so that the victim suffered serious injuries, was delivered to a hospital in critical condition and required large grafts of skins to be replaced on his skull - does not qualify as a "minimally intrusive investigative stop":

This case shocks with both the heartlessness of the court to the homeless victim of a crime committed against him by a government official and as to how shadowy our rights supposedly guaranteed to us by the U.S. Constitution really are.

We have the 4th Amendment, it prohibits unreasonable seizure by the government.

But, the U.S. Supreme Court and federal courts changed that, changed the text of the 4th Amendment - changed the U.S. Constitution without authority to do so - and now claim that there may be "qualified immunity" to violate the U.S. Constitution with impunity under certain circumstances.

Then, when those same circumstances, and those same rules set by the courts are satisfied, they refuse to apply them, and carve out new rules that deny the victim a remedy anyway - as it was done in the 2010 precedent cited by the court in the 2017 precedent.

Let's look at the timeline of these police dog-mauling cases in the same court, the 4th Circuit.

In 1995 - the law was "clearly established" that mauling by a police dog is a 4th Amendment violation, a seizure, and the police officer after that will not be entitled to qualified immunity if that happens.

In 1998, the same court adhered to its 1995 precedent, granting a remedy to a woman victim of police dog mauling.

In 2010, the same court refuses to follow its own 1995 and 1998 precedents and denied a remedy to a child victim of police dog mauling.

In 2017, the same court said that its refusal to apply its 1995 and 1998 precedent in 2010 was wrong, but refused to apply these same 1995 and 1998 precedents anyway, on new (and contrived) grounds.

The result is the same - an innocent victim of police misconduct, mauled nearly to death by a vicious animal, was denied a remedy.

That denial of remedy is aggravated by the fact that the man is homeless and his health was his only protection from the elements.  Now he was stripped of his only treasure, his own health, by the government, without any compensation, for no fault of his.

In addition to being a heartless decision, it is a clearly unlawful decision.

The 4th Amendment was clearly violated.

A remedy is clearly allowed for the victim under the circumstances, by the 4th Amendment and by the Civil Rights Act enforcing it.

Courts have no right to amend either the U.S. Constitution or the Civil Rights Act in order to take away the right to a remedy from those they do not like.

What a disgusting case!

Here is the initial report in the North Carolina press about the incident - the police department (1) denied that the officer did anything wrong (of course, who would acknowledge that he would let the dog maul an innocent homeless man some more before officer would call him off); and (2) even offered the victim to pay his medical bill - not that it would have restored his health that they robbed him of.

Then, lawyers stepped in, went all the way to the 4th Circuit Court of Appeals and had the court deny the homeless man any remedy whatsoever.   No more compassion, I guess.

And here are the "heroes".

The author of the majority opinion, the heartless bitch Judge Stephanie Dawn Thacker, a recent Obama nominee, who twisted facts and law in order to deny the remedy to a homeless person nearly mauled to death by an intentional order of a police officer:

The "concurring opinion" judge William Byrd Traxler, Jr, a Bill Clinton nominee.

And this is the only voice of reason in this whole mess, Judge Pamela Harris:

With her knowledge of the law, clear reasoning, courage and honesty, Pamela Harris would be a good nominee to SCOTUS instead of fishing-with-Scalia tail-wagging "originalist" Neil Gorsuch.

But I know, I know.  Who would nominate an honest person to SCOTUS.  Even the supposedly bold President Donald Trump wouldn't dare.

Harvard Law Library must return Scalia papers to the public

It has been recently announced that the family of the deceased U.S. Supreme Court Justice Antonin Scalia has magnanimously decided to give it to the Harvard Law Library, Scalia's alma mater, and to supervise public access to these papers:

Of course, no mention was made that "Nino" was caught practically with his pants down, at a rancho with personnel speaking only Spanish (not to understand anything that was said by important guests in English, presumably), and where he arrived, on Valentine's Day weekend, without his wife of 55 years, mother of his 9 children.

Nor was it mentioned that "Nino" arrived (or his body was brought after death) to that rancho right after his privately sponsored trip to Hong Kong and Singapore.

In other countries, public officials are not allowed to have gifts in kind in the form of privately sponsored international trips - but in the U.S., SCOTUS judges consider themselves Gods with no authority over them, and do whatever they want.

It was reported also that Scalia's family will be supervising public access to records generated by Scalia during his taxpayer-funded tenure on the U.S. Supreme Court and the D.C. Circuit Court of Appeals.

It is very apparent that Scalia's family has no authority to:

1. have access to the SCOTUS papers that the public is not allowed to see;
2. regulate public access to such papers.

Moreover, materials regarding Scalia's tenure on these two courts will reportedly not be available for access through Harvard Law School - and that is NOT the equivalent of public access - until 2020, and materials regarding specific cases will not be available until all participating judges die off. 

Right now we have 8 remaining judges, many of them quite young, and life expectancy of U.S. Supreme Court judges is towards the 90s.

That decision means that several private individuals, the so-called "Scalia family", without any authority, blocks access to public records created by a public servant as part of his taxpayer-backed job during not only the remaining lifetime of the currently sitting justices, but during the remaining lifetime of hundreds of thousands of U.S. citizens, voters and taxpayers, which is completely unacceptable.

The decision of the Scalia family (and some of Scalia's children are lawyers) to not embarrass the sitting judges of the U.S. Supreme Court by exposing the "kitchen" of how the SCOTUS decisions were cooked - as likely reflected in Scalia's papers, "notes" and "journals" about cases - "notes" and "journals" that the Scalia family, who are not employees of the court, already saw - has no basis in law.

Public servants have NO RIGHT TO AVOID EMBARASSMENT FOR EXPOSURE OF THEIR MISCONDUCT OR IMPROPRIETY.

Public servants, and their families, no matter how high their rank, have no right of ownership whatsoever as to documents created as part of or in connection with Scalia's employment as a judge, no right to place such records into the hands of private corporations, such as Harvard Law Schools, no right to place records outside of the reach of the public, into a private institution, no right to supervise or control who and how accesses the record, and no right to block access to those records to prevent potential embarrassment of the currently sitting judges.

Harvard Law School must put these public records into the Library of the U.S. Congress, as a public receptacle of public records, maintained with public funds and giving access to the public to review records created by public servants during their publicly funded jobs.

These records have ALREADY been made public, by Scalia showing them to its family who are not confidential employees of the U.S. Supreme Court, and by the Scalia family placing those records into the hands of Harvard Law School librarians, who are also not confidential employees of the U.S. Supreme Court.

Since such documents were already exposed to people who are not personnel of the U.S. Supreme Court, they were made public - and should be kept in a public library and free public access to them should be allowed.

Now.