Criticize judges now. The legal establishment now allows it. Kind of. Because there is the 1st Amendment out there. They know, they know. But they do not care, and lawyers laugh how adorable it is that they do not care.

There is such a thing in the Supreme Law of the Land of the United States of America called the 1st Amendment to the U.S. Constitution.

And it says, supposedly, that

And, since only Congress can make laws in regards to FEDERAL rights, universal for all citizens of the country, no state government can make such laws either.

Heard it?

I did, too.

Having heard that, I also have this:

That means that, since November 13, 2015 I cannot work BECAUSE I exercised by indigent client's due process and 1st Amendment rights, made motions to recuse a biased and corrupt judge, was sanctioned "for frivolous conduct" by that biased and corrupt judge - and was prohibited to work and earn a living, because of it, without a hearing.

And, according to law professor Margaret Tarkington, discipline of attorneys specifically FOR criticizing judges - as professor Tarkington politely put - "enjoys a recent resurgence".

Usually those who criticize judges in this country are immediately dismissed - first, by the courts, then, by the legal establishment whose livelihood depends (literally, through regulation of licenses) on the courts' whims, and then, by the public who blindly follow whatever the legal establishment and courts tells it, "because they know better" - as the so-called "disgruntled litigants".

In the so-called "Rooker-Feldman jurisprudence", a bar unlawfully created by federal courts to block civil rights litigation in federal court because federal issues "could" be raised before biased state courts - courts use an even better, more smacking, more vulgar word than the "legalese-termed" "disgruntled litigants".

"Losers".  That's what the U.S. Supreme Court Justice Ruth Bader Ginsburg, the trailblazer of civil rights, called people who preferred to litigate their federal claims (as the law allows them to do) in federal court:

"The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."

So, if you were prosecuted by a corrupt state court, and another corrupt state court denied appeal, and if you want to sue (as the U.S. Congress allowed you) for civil rights violations under the Civil Rights Act in federal court, the federal court will tell you - "'we have no jurisdiction", because you are a - LOSER!  Not that courts are allowed to change their jurisdiction.  Only the U.S. Congress has such authority, under Article I of the U.S. Constitution.

But courts still do that.

So, "losers" in a biased state court are not entitled to a legal remedy for violation of federal constitutional right provided to them by U.S. Congress. 

Because - they criticize state judges.

And, for that reason alone they are - how do those backyard bullies in middle school called it - LOSERS!


So, now we established that those who criticize judges are simply losers.

Even Ruth Ginsburg says so - if you complain about a "state court judgement", you are a loser.

So, why listen to losers?  To anything they are saying at all?  They are losers, after all, what good can they say?

By the way, when a lawyer surfaced on my blog with criticism of my criticism of judges and refused to reveal his identity and engage in a public online real-time video-debate, he actually claimed that the identity of the individual who makes a statement does not matter, the truth of the statement matters.

While accusing me of "chasing phantoms", "attacking the wrong targets", "getting confused" and "playing fast-and-loose with the law", and claiming, based on those conclusory allegations, without examples, that such alleged behavior on my behalf hurts my credibility, the patronizing male lawyer did not want to reveal who he is.

When I pointed out his patronizing, and conclusory, criticism from the bushes as lacking credibility, he exploded:

So, here a male attorney (or judge) needed the anonymity to be able to say the word "fuck" to a woman he never saw because she - legitimately - accused him of making unsubstantiated conclusory allegations and patronizing her.

The patronizing male lawyer Coyote Waits taught me, the misguided little woman, that his anonymity does not matter, the truth of his statements - whatever they are - is the same:

"Again, however, I will not debate you live and I will not shed my anonymity.  As a lawyer, I would think you would recognize that an argument should stand on its own." 

So, those who criticize judges are:

• "losers" - as Ruth Ginsburg transparently proclaimed in Exxon Mobil in 2005;
• attackers of the U.S. Constitution - as the President of the American Bar Association claimed in response to President Trump criticizing Judge Robart for his illegal decision;
• bigots - like Donald Trump was in criticizing Judge Curiel, even though he had a perfect right to do so, and did not even reach all problems with Judge Curiel presiding over his case; or
• idiots - as many of the news sources, and public in comments in social media, have branded President Donald Trump was in criticizing Judge Robart for making an unlawful decision, and then the 9th Circuit in making an unlawful decision

(in the 9th Circuit decision, quite likely, Ruth Ginsburg, and the Hawaii State University secretly participated - and the State of Hawaii, on behalf of Hawaii State University, is now the 1st state suing Trump for his 2nd Executive order on immigration, apparently after a consultation with Ruth Ginsburg who is not allowed to practice law and participate in consultations on a case, as a judge, and as an appellate judge on whose table this case may and likely will end - but who will stop her?)

I recently confirmed for myself the attitude toward not even criticism of judges by the legal establishment - simply asking a question.

I asked a question, on the Facebook page of the American Bar Association, what right did the family of Antonin Scalia have to own, control and distribute records related to Scalia's work as a judge (case-related notes and journals)?

The reaction was, immediately, the very same as with Coyote Waits:

(1) I was taught that I do not understand the law by a true guru in trial and appellate law

(by a foreclosure attorney who puts his religious faith - and faithfulness - on his professional profile; who, according to his own admission, has dreamed of becoming an attorney since 12 - dreamed, and dreamed

- and, after dreaming for so long, his dream has become true, and - voila! - after working for the U.S. Attorney's office he somehow left, interned in South Africa and then hit the rock bottom of attorney specialties and became the only associate in a 5-lawyer firm (3 partners, 1 "of counsel" and 1 associate - Lindquist), a foreclosure attorney

So, now his dream has come true and he can proudly cast people out of their homes without any litigation (as it happens in most judicial foreclosures, because people do not have money for an attorney and default), and when the majority of his clients, likely, do not have standing to sue - because of how mortgages are obtained and assigned in the U.S. (I often defended people in such cases and know this particular area of the law very well). 

Lindquist very obviously has to feed two young children of his own (as confirmed by his Facebook profile and his profile on his law firm's webpage), who is completely dependent on the judiciary, so he, of course, will not commit any missteps.

Yet, he had the audacity to undertake to teach me what litigation means, what documents are created in litigation and who those documents belong to. 

And, not to overdo it, he claims on his LinkedIn profile that he "enjoy[s] the human element of practicing law and am motivated by helping people resolve complex and stressful situations".  By working first as a prosecutor, and then as a foreclosure attorney.  Oh, well.

(2) I, and even my husband, were "Googled" and our "record" was found "illuminating" - because I asked a question about a judge!

That was the post:

The article, as I already wrote before, discusses that Scalia's family gave Scalia's "papers", including papers related to his work as a judge on the federal appellate court and in the U.S. Supreme Court (case-related notes and journals) to the Harvard Law Library, with the Scalia's family controlling who gets to get access to it, including a restriction until 2020 on access to court-related records, and a restriction until all presently living judges-participants in those cases will die off.

Here is my question:

Here are the comments:

I answered that notes of judges from court cases are not their own "private notes", moreover, that it is a "common practice" says nothing about legitimacy of such a practice.

Then came the backlash.

Note the tone.

I simply asked a question.

But, through that question, I implicitly criticized a judge.

And, attorney, or law student, whoever he is, David Berry, who boasts on Facebook about his legal education and even puts President Lincoln's picture as his Facebook profile picture, simply cannot have it.

Not knowing me, David Berry immediately concluded, from my question and two comments, that a judge does not own notes from a court case, that I "have no first clue of what s/he is talking about", and asks a counter-question, mockingly, whether the public owns the books Scalia has written, or letters to his friends and wife.

I answered that, while the public does not own the books, the judge did not have the right to write them while rejecting 99% of petitions coming his way, because he has no time (but has time for writing books):

And here comes the cherry on the cake: the next commentator Googled me AND my husband (whose name is not Frank, by the way, but, I understand, "Wendi Lynn" was fuming and in a hurry to post this one) - and found our background "illuminating".  Because I asked a question that criticized a judge by implication:

#AttorneyAaronLindquist was tagged on this one, and immediately "liked" it.  That was on March 7, 2017, a Tuesday, at 9:21 am - attorney Lindquist was supposed to be at work, either in his office or in court, enjoying "the human element of practicing law" and "helping people resolve complex and stressful situations" by stripping them of their homes.   

Something that is being offered in New York, for example, for less than flipping burgers

($50 is the current rate for attorneys appearing in foreclosure proceedings per appearance, for review of documents, judging by proposals that still come to my law office e-mail account despite an automatic reply for 2 years that it is closed - $50 for hours of rush review, note that the offer below is dated March 9, and the appearance is the next day, of a thick file of documents, usually with standing problems, legal research, travel to court, appearance in court, wait time, the wait may be several hours on top of that):

Apparently, on a Tuesday morning at 9:21 am attorney Lindquist had nothing to do other than discussing my own and my husband's background on Facebook, because I asked a question about a judge.

Now, let's say that the very same thing - the bullying and checking the background of a person (and husband of the person) who asked a question - would be happening at a press-conference, I would be the journalist (I am a citizen journalist, and I asked the question as such), and President Trump would be the one I am asking that question, and President Trump would say - "I've just Googled this journalist and her husband and my Google search was quite illuminating".

There would have been hell to pay in the media if the President would do something like that.

Yet, it is a routine occurrence in the "honorable" legal profession to bully people who raise concerns about judicial impropriety before the legal establishment - even if that is done implicitly, through a question.

The reaction spells out the attitude of the "honorable" profession loud and clear - DO NOT attempt to bite the hand that feeds us.

So, here goes the idea of "an argument standing on its own" - and there, there was not even an argument, a question needs to be answered on the merits - got lost upon attorneys-commentators on Scalia and his family treating court notes as their own property.

And all of the above, lady and gentlemen, was only a foreword, a preface, a precursor to - TADA! - a big change in the industry.

Today, on March the 13th of 2017, the New York Law Journal, a "scholarly", but rather, a media source of the legal establishment, published an article in which two authors say that Trump's criticism of a judge is actually:

• good;
• refreshing;
• democratic, and that
• judges need to EARN public trust - not demand and presume it, as they do now.

Wow.

Consider the phrase: "Abraham Lincoln, and before him Andrew Jackson, also had harsh words for the courts. Tough-minded presidents usually do" - after a recitation the "harsh words" that Presidents Roosevelt, and Obama had for judges.

Consider the last paragraph:

"Trump has shifted the burden of proof. If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name. Otherwise, jurists can expect even sharper criticism than Trump's."

And illustrated that judicial decisions are "politics by another name" by pointing out at statements of two judges:

Ruth Ginsburg:

 "He is a faker. He has no consistency about him. He says whatever comes into his head at the moment".

The article mentioned that Ginsburg later apologized for that particular blunder, but it did not mention that Ginsburg later practically retracted her apology by adding to her previous statement that

• she will leave to New Zealand if Trump is elected (she is still here, so that was a fake statement, she would never voluntarily shed her money and power and disappear away from the limelight), and, recently, that
• "we are not experiencing the best of times" in the U.S., not to mention
• her recent Hawaiian trip during work time in order, likely, to fix a court case against Donald Trump - a trip to the Hawaii State University School of Law employing as professors law clerks of one of the judges who, as part of the 9th Circuit panel, was deciding the case against Trump, while his chambers were "coincidentally" located within 7 miles from where Ginsburg was hosted - and the Hawaii Law School is currently stalling my Freedom of Information request asking for records as to who paid her bills and how much those bills amounted to, that would be a separate blog).

Yet, consider what the "revolutionary" New York Law Journal article said about another blubbering SCOTUS justice, Sonya Sotomayor (I added a link to the 2005 statement to the source):

"Consider the remarks of now-Justice Sonia Sotomayor in 2005.

'All of the legal defense funds out there, they're looking for people with court of appeals experience. Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.'

Sotomayor drew knowing laughter from the audience because she exposed the hypocrisy woven into our judicial fabric. Judges are supposed to expound law, not make it. Yet, as she revealed, appellate judges make policy all the time. Supreme Court justices even more so.

Sotomayor views judges as having an expertise, a long-range vantage point, and a detachment that qualify them to wield extraordinary powers. By exploiting the law's inevitable uncertainties, judges in the Sotomayor camp have fashioned dubious "constitutional" rights to drive policy in their preferred directions."

The worst of her "offhand remark" in 2005 was that it was made to law students - people who she was teaching by her laughing comments as to what law and justice in the U.S. really is - NOTHING.   What matters is only the law that judges make, illegally, she knows, she knows, but they still do.  And the law students, and their professors, and attorneys who came to listen to her, there is no doubt that they were in that audience, too,  "knowingly laughed" - and that her "offhand remark" in 2005 did not prevent her from becoming a U.S. Supreme Court justice.

The "knowing laugh" part reminds me of what Professor Bogus has said about how brown-nosing the judiciary and endorsing, supporting and approving of judges' most asinine behavior, creates monsters:

In 2009, Sotomayor added to her arrogant "policy" remark in 2005 that decisions are made based on the judge's personal experience and ethnic background - that was here in-famous "Latina woman" remark.  That remark also did not prevent her from being confirmed for the U.S. Supreme Court.

So, given such a seal of approval, no matter what she blubbers, she kept blubbering.

In May of 2016 Sotomayor blubbered some more, now calling for lawyers to be forced into provision of free legal services to close the "justice gap" - created by attorney monopoly and attorney regulation BY courts.

In January of 2017, Sotomayor was part of the panel denying me, without review or explanation of reasoning (of course, I understand that I am not in Finland where people are entitled to reasoned court decisions, at least an explanation why the court considered it unnecessary to enforce their own recent precedents on point and not to enforce the U.S. Constitution) the petition for a writ of certiorari, without recusal of Sotomayor

despite the fact that her own statement (that same "forced labor" statement) was used as evidence in the petition, which required her disqualification, whether I asked for it or not.  I did not ask, but remember why I was suspended in the first place? For motions to recuse a judge. 

Here are excerpts from my certiorari petition that were specifically about the "justice gap", and Justice Sotomayor's comments about it - that would cause ANY honest justice to resign, but, of course, not Sotomayor (remember - " Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know).

She knows, she knows, that what she is doing is wrong - but who will stop her?

"The so-called 'justice gap', the lack of skilled attorneys working for the poor in criminal, family and civil rights proceedings, has become a national crisis, to the point that this Court's Justice Sotomayor has publicly stated this year that she would support a mandatory pro bono work requirement as a condition of attorney licensing for all attorneys throughout this country (FN39 to Tony Maura, Sotomayor Urges Mandatory Pro Bono for All Lawyers. The National Law Journal, May 17, 2016).

New York State recognizes that it has a "justice gap" so bad that it bridges that gap with mandatory services of inexperienced (and unlicensed) law students (FN40 to 22 NYCRR 520.16(a):

If the justice gap in New York is so bad that New York mandates or encourages practice of law by unlicensed, inexperienced and unskilled service providers in order to bridge the justice gap for poor litigants, surely, New York must treasure those skilled attorneys who are already providing services to the poor, helping to bridge that justice gap.

Yet, instead, New York removes skilled attorneys who honestly do their jobs for their clients, just because they made motions to recuse a biased judge and were sanctioned by that judge (FN to Matter of Aretakis and Matter of Tatiana Neroni), and does it through disciplinary proceedings where New York courts apply collateral estoppel to a standard of proof artificially lowered to an unconstitutional level in order to allow disciplinary prosecutors to skip evidentiary hearings, without regard whether criticism of the judge was truthful".

*  *  *

I further said in the petition that Sotomayor participated in denying without an explanation or reasoning:

"On the one hand, New York recognizes that the justice gap in the state is so bad that New York mandates or encourages unlicensed, uneducated, inexperienced and unskilled service providers to provide legal services to the poor, in contravention to its own criminal laws and attorney licensing laws.  New York thus exposes indigent litigants to the danger of unskilled and dishonest providers who were never subjected to evaluation by character and fitness committees, which is exactly contrary to the declared reason of why attorney licensing was introduced in the first place - to protect consumers of legal services from unskilled and dishonest providers.

On the other hand, New York removes services of skilled attorneys who are already providing their services to the poor from the reach of those indigent litigants for unconstitutional reasons, disciplining attorneys not for doing a bad job for their clients, but for doing a good job.

Moreover, attorneys so targeted for unconstitutional discipline are, invariably, small-firm and solo criminal defense, family court and civil rights legal practitioners who work for the poor and who raise 'sensitive issues' of judicial misconduct in court, such as in attorney Aretakis' cases and in Petitioner's case.

Under these circumstances, removal of skilled attorneys from the reach of indigent consumers of legal services, specifically because they are skilled, and specifically because they skillfully and courageously argue 'sensitive' issues of governmental misconduct on their clients' behalf, while replacing them with unskilled, inexperienced and unlicensed providers, amounts to an unconstitutional unspoken policy that has the effect of blocking the poor from access to skilled legal services, thus widening the justice gap for the poor while New York pays lip service about its effort to bridge that same gap.

This year, this Court has struck in Whole Woman's Health v  Hellerstedt, 579 U.S. __ (2016) a government regulation of the medical profession which was beneficial as declared, but harmful in effect.  Harmful effect is exactly what occurs when attorney discipline is used in a way harmful to consumers.

Preventing the widening of the "justice gap" is at least as much, if not more, important as preventing the widening of "access to abortion gap".  Access to abortions only affect less than half of this country's population - women of reproductive age - while the justice gap affects the entire population."

So, I spoke about the justice gap, Justice Sotomayor's personally expressed concern about it, and the use of attorney discipline in the State of New York to widen it and to block poor litigants from skilled civil rights attorneys as a matter of policy.

And Sotomayor who made a personal pledge to fight to bridge that justice gap, participated in a decision denying, without an explanation, a petition for a writ of certiorari that could help fight that same justice gap, by preventing removal of skilled civil rights, criminal defense and family court attorneys from the reach of the poor.

Because she knows, she knows, who is going to do anything about it?  And who has the power to do anything about it?

The article in New York Law Journal now says that criticizing judges is actually a good thing.

And that judges, based on Sotomayor's and Ginsburg's statements, are politicians in black robes.

And that they should be subject to criticism, worse than President Trump's, if they fail to show through their decisions that their decisions are not just "politics by another name".

And that, if judges fail to show that, they are not entitled to either respect of deference from the public.

As revolutionary as it may sound, from such an edition as New York Law Journal, the article still fails on one important issue.

It is not President Trump, or presidents of the United States criticizing judges before him, who "allowed" or "open the gates" of criticism against judges.

What allows such criticism and make it healthy and proper is the U.S. Constitution and its 1st Amendment - that same U.S. Constitution that every judge in this country, including Ginsburg and Sotomayor, is sworn to protect.

And not "I know, I know" protect, but really protect.

And people, instead of "knowingly laughing" at the adorable ways judges violate the U.S. Constitution, their own oaths of office and people's rights, should demand action from their representatives in legislatures to introduce strict statutes giving people real remedies in dealing with judicial misconduct.

Without such remedies, they will continue to break the law while arrogantly laughing at us.

We the People, not the judges, are the popular sovereign in this country.

The U.S. Supreme Court has confirmed that in the infamous Dred Scott case (I wrote about it in my blog before).

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives."

We dictate what laws exist in this country, not judges.

And we know, we know, that what judges do in refusing to enforce the U.S. Constitution and refusing to give victims of constitutional violations real remedies at law is unlawful, unlawful.

And unconstitutional, unconstitutional.

And they should be held accountable for that.  Really. 

We the People are not laughing.

To Preet Bharara - good riddance

The following comment appeared on Facebook immediately after the news of U.S. Attorney for the Southern District of New York Preet Bharara fired by President Trump, after refusing to resign.

Preet Bharara also tweeted, comparing himself to the Moreland Commission that was disbanded by New York State Governor Andrew Cuomo when the Moreland Commission started to investigate Andrew Cuomo.

But wait, wasn't it Preet Bharara who investigated the disbanding of the Moreland Commission by Andrew Cuomo and found nothing wrong?

And, wasn't it Preet Bharara who testified in that same Moreland Commission, but refused to take calls or respond to inquiries of whistleblowers of judicial corruption - like Leon Koziol, as he describes in his blog, and like me - refusing to prosecute judicial corruption despite documentary evidence sent to him, and despite a clear demand (based on federal law) to turn judges involved in corruption to a federal grand jury?

And isn't the supposedly independent Preet Bharara, as it starts to appear now, the "Schumer boy", where Senator Schumer, Trump's opponent, handled negotiations with Trump about Bharara (Schumer's own former chief legislative counsel) remaining on the job - back in November of 2016?

By the way, Schumer was reportedly "caught off guard" and "extremely surprised and disappointed" by President Trump for firing Bharara.

And isn't being "the Schumer boy", and aspirations to run for the New York State Governor, and being in need of partisan support for such a run, prevented Bharara from prosecuting Cuomo for corruption - while he prosecuted the other 2 of the "three men in a room", and prosecuted everybody around Cuomo?

So, mourn, if you wish, the loss of the "fearless" and "independent" Bharara, a "patriotic American" and a "proud immigrant" (he knows which buttons to press in the current political climate).

I say - good riddance to yet another promiscuous politician.

Legal security and a right to a reasoned decision are fundamental human rights. In Finland.

While doing some research, I found this interesting information that people having experience with American courts will, I am sure, appreciate.

Here is what rights people have in Finland.

"Legal security is a fundamental right of the people".

Wow.

Tell that to anybody who, when going to a court of law in the U.S., must consider and dread what kind of flea will bite the judge's butt that morning,  what kind of political wind or personal favor, or personal grudge will the judge find necessary to satisfy to rule in that party's case, despite whatever the law says.

And the next one is even better.

In Finland, there is a right to a "reasoned decision".

Remember it next time when you receive a court decision saying something like:

"After due deliberation, your decision is DENIED".   Period.  No explanation. 

Sometimes, even shorter.

"Petition denied".

Or, even shorter.

"Denied".

But, after all, where is Finland, and where are we.

We are the best country in the world, with the best legal system.

And, because we are the best, we should not complain and demand changes.

Shouldn't we?

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.