As upstate New York bleeds population, judges invent new ways of feeding their non-profits with business. Judge Brian Burns and his new additional grab-and-treat court.

Here is a full text by the Oneonta "Daily Star"'s staff writer about a yet another "treatment" court opened by the corrupt Judge Brian Burns, the Otsego County court judge .


"Otsego County has launched a specialized court that addresses the unique challenges presented by opioid addiction.

It was created as part of the statewide effort by the state Unified Court System to address these issues, according to a media release from the state Unified Court System.

The new Opioid Court is an outgrowth of the county's already existing Drug Treatment Court, improving the treatment court model by focusing on early intervention and treatment, Otsego County Court Judge Brian Burns said. The new court's first session was Dec. 13, he said. 

According to the release, the court will accept both felony and misdemeanor cases from the Otsego County Court and any town or village court in the county. The court will also accept referrals from local attorneys, police agencies, first responders, probation officers and any other agencies working with at-risk opioid users, according to the release.

Traditional treatment court typically involves someone pleading guilty and being sentenced in treatment court, a process that can take weeks, Burns said.

"For someone with an opioid substance use disorder, they may not have weeks," Burns said. "We put the prosecution on hold and do everything we can to intervene and provide access to treatment immediately."

Burns said while he doesn't believe anyone has died waiting to get into treatment court, several drug court participants have died of overdoses while they're in the program. With the new court, treatment isn't conditional on the legal process happening first, he said.

"We don't want someone to overdose and die because of a slow legal process," Burns said.

Participants are immediately assessed for their needs, which includes a level of care determination, transportation to a treatment facility, housing assistance when they're discharged, employment assistance and help addressing mental health issues. Participants are subject to drug testing, a curfew and they also do community service, Burns said.

While overall, fewer people are dying of overdoses, it doesn't mean the crisis is over, he said.

"We still have people dying from opioid overdoses both in this county and across the state every day," Burns said. "The advantage of the opioid intervention court is it allows us to focus immediately on getting people into treatment."

The court is focused on opioids because of the highly lethal nature of heroin and fentanyl, Burns said. The court is modeled after others around the state, typically in more urban areas, Burns said. It could potentially expand and address other substance abuse issues. For now, things are being taken one step at a time, he said.

"Substance abuse disorders in general are more effectively addressed through a public health system, not the criminal justice system," Burns said. "This opioid intervention court is much closer to a public health response than a criminal justice response, so I think it would be effective if applied for people who suffer from any substance abuse disorder."

Shweta Karikehalli, staff writer, can be reached at skarikehalli@thedailystar.com or 607-441-7221. Follow her @DS_ShwetaK on Twitter."

Nice, nice, nice.

Very kind words said by the judge.

Now, why is it that I do not believe a single one of them?

Not even looking at this crook's very honest looking face?

Here are some comments under the article posted on Facebook:

And, the input of the former Treatment court co-ordinator Leo Giovagnoli who was finally pushed out of that court because of politics, does not add anything positive to my already dismal opinion of the proponent of this "court", judge Brian Burns.

Judge Burns has the dubious notoriety of having sent a teenager to jail because his father dared to demonstrate in front of his house.

Who has hired a federal judge's own law firm to defend himself - instead of the New York Attorney General, who usually defends judges in such federal cases at taxpayers' expense - in order to have the judge (David Peebles) give Burns a break and stretch judicial immunity beyond the breaking point.

As a result of hiring the judge's own former law partner, Burns WAS actually given immunity in a criminal proceeding where there was ANOTHER judge, and where Burns was very clearly the complaining witness and not a judge.

I have written a whole chapter in my 2018 book 

about Judge Burns' ties to the "service provider" industry, about making "treatment courts" - and Family Court - his own private business, for himself and members of "providers' association", a business funded by us, the taxpayers.

You are welcome to read it.

But, also consider the demographics of the Otsego County.

It already did not boast a boost of population, and now it is, as other upstate New York counties, is heavily bleeding population.

Less population - more taxpayer money paid for new "undertakings", like this new "court".

If, as the judge says, one person has died "while in the program" - in their treatment court, maybe, you need to fix the old one, not create a brand new one.

And, Judge Burns, as a member of the Board of Directors of association providing services court-ordered by such a "court" (by judge Burns himself) is uniquely Disqualified from presiding over the old one (treatment court) and from creating an additional one.

My question, too, is, will Judge Burns now be creating a separate court - with taxpayer money - for every different drug to which people are addicted?

An alcohol court?
An opioid court?
A pot court?
etc.?

When will it end?

Note, too, how the judge is using the failure of his own court - a person died of an overdose while in the "program" - to his own advantage and to push for stripping people Burns wants "to help", or, rather, to make them into captive patients for members of his "providers' association" of more constitutional rights:

"With the new court, treatment isn't conditional on the legal process happening first, he said."

What the f**k, excuse my exquisite French, does THAT mean?

In a new COURT, treatment is not conditional on "the legal process happening first"?

Meaning, Burns can now court-order and put under the criminal contempt of court powers, anybody WITHOUT first determining whether he has JURISDICTION over the person? Whether the person has committed any WRONGDOING (courts do not adjudicate anything but wrongdoing - as Judge Burns must know).

Now Judge Burns can just grab-and-treat?

Or, rather, give lucrative business to his provider friends/members of his nonprofit who are suffering from bleeding population?

But, the grab-and-treat approach has nothing to do with law, does it, Judge Burns?

Will Judge Gary Rosa (NY, Delaware County) be taken off the bench after his profound fiasco in a juvenile case?

I have patiently followed the scandal (one of many) in Delaware County, New York concerning a fight between the County Commissioner of Social Services and the County attorney who represented the Commissioner in court, as a petitioner in a juvenile delinquency (criminal proceedings for teens in Family Court) case.

As always, the bold and courageous local press, thumping on Trump lately all the time as allegedly acting against the U.S. Constitution (while regularly turning a blind eye to corruption in the local government, and especially the judiciary), have missed the main point in the squabble.

The incompetence of Judge Gary Rosa who could have ended the conflict in one decision - saving 

• much heartache and physical injury for the teen, 
• the position for Commissioner Dana Scudderi-Hunter and 
• tens of thousands of dollars for Delaware County taxpayers, including my husband and myself.

But - no.

Being a coward that he is, he did not do what he was supposed to, as a judge.

The point is that BOTH the Commissioner of Social Services (Dana Scudderi-Hunter) and the County Attorney (Amy Merklen) had IRRECONCILABLE conflicts of interest in that juvenile case and could not possibly be part of that (sealed, by the way) proceeding.

Why?

Well, that much was out in the open.

The teen in question was in foster care of the Commissioner.

So, the Commissioner could not possibly - as a person in the position of a parent of the teen, his legal guardian - PROSECUTE that same teen in a juvenile quasi-criminal proceeding.

It was, of course, County Attorney Amy Merklen's job to so advise the Commissioner - but she did not.  Which is malpractice and incompetence in itself, and it is Merklen who should have been booted along with Dana Scuderi-Hunter.

Instead, Merklen came into conflict with her own client, took in litigation the position of the County Supervisors who pays her salary but had no right to know anything that is going on in a juvenile proceeding.

The position of the County was to save money - which may not be an issue in litigation at all, and, which resulted in the opposite, in grossly wasting tens of thousands of our hard-earned dollars.

Merklen also took the position the County's probation office against the position of her own client.

When the client, the Commissioner, did not cave in, Merklen complained about the position of her own client in litigation (in a SEALED juvenile case) to the County Board, which is a violation of the teen's privacy, and made sure that her own client has lost a job.

Mind that Amy Merklen MUST be disbarred for what she did - but she never will be.

Why?

Because remember Porter Kirkwood, Merklen's predecessor as County Attorney?  

The crook who constantly engaged in ex parte communications with his predecessor as Deputy County Attorney - Judge Carl Becker?

The crook who boasted in his own judicial election campaign that he allowed illegal mental health experimentation on teenagers in his foster care?

Porter Kirkwood is now a law clerk for a judge in the attorney licensing court, the 3rd Department (unless "his" judge Molly Fitzgerald has left him behind - his registration still shows that he is in Binghamton, in the court assigning judges to cases across the judicial district -

while she has been transferred to the 3rd Department long time ago), 

and he will never allow disbarment of "his own", of another local loyal crook.

But, my question remains - WHY didn't Judge Rosa end this whole thing with one decision, a SUA SPONTE (on the court's own motion) decision, seeing very plainly in front of him a legal guardian of a child prosecuting, in a quasi-criminal proceeding, her own ward?

Why didn't he disqualify the Delaware County Commissioner Dana Scudderi-Hunter because of her irreconcilable conflict of interest?

Why didn't he dismiss the proceeding as being void since it has been filed by a person with an irreconcilable conflict of interest, and thus, disqualified from filing such petitions?

And, why NOBODY, not one of the multiple attorneys handling this case from all sides - has pointed that out, in any of the multiple court and administrative hearings relevant to the case?

And why NO JOURNALIST covering this whole story raised this issue?

So, why did Judge Rosa continue to adjudicate a void proceeding?

Costing the actual physical and mental harm to the teenager in question, a job to the Commissioner and tens of thousands of dollars WASTED of taxpayers' (including my husband's and my own) money?

Will you re-elect this incompetent twit to the bench again?

Will you keep him rule over your lives for the remainder of his term?

Or will you do something to get him off the bench?

Fire the expert law professor for his expert opinion that pissed the "legal" establishment. All that one needs to know about 1) the state of freedom of speech in the US and 2) the "integrity" of the American legal profession

Over the 3+ years of Trump's presidency a distinguished legal expert, Harvard Law School Professor Alan Dershovits, have been committing faux pas after faux pas - by simply presenting his expert opinion on the grounds, or, rather, lack thereof, to criminally investigate and pursue Donald Trump.

By Mueller.

He was badmouthed by the legal establishment, called names, called brainless, called a shame to his profession etc.

Simply by stating what he knows best as a criminal defense attorney - whether there are or there are no legal grounds to sustain criminal charges.

Now the same harassment campaign is unleashed upon a well-known George Washington University Law School professor Jonathan Turley.

For simply - also - stating his expert opinion that he does not see legal grounds for impeachment of the President, badly wanted by the Democrats in the House.

That articles of impeachment may not be based simply on somebody's anger, dislike and desire to impeach.

For his testimony, Professor Turley got the following:

1) a demand to fire him (a tenured professor) - won't happen, but the mere fact, of what is demanded and in response to what; and, note, that the demand to fire Professor Turley came from within the law school - from a member of the faculty or from a "future lawyer of America", a law professor or a law student;

2) threatening messages delivered to his home and office:

"Jonathan Turley said the nasty messages began rolling in before he could even finish telling the House Judiciary Committee that impeaching President Trump was a bad idea on Wednesday.

“My call for greater civility and dialogue may have been the least successful argument I made to the committee,” Turley, a law professor at George Washington University, tweeted on Thursday. “Before I finished my testimony, my home and office were inundated with threatening messages and demands that I be fired from GW.”

Now, Jonathan Turley has a BIG clout.

As a tenured professor, he won't be fired.

If he is, he will be offered a zillion jobs.

But - think about it, what chance does a regular Joe has in simple expressing his opinion that is based on his professional training and expertise, but that goes against the temper tantrums, petty grudges and wants of a large number of people in power?

And - these threats and bullying are coming to the PROFESSOR'S HOME, and obviously from the "legal community", all holders of law license that are given with the condition of observing the rules of the so-called "attorney ethics".

This is the supposed anti-bullying crowd.  Until THEY want to bully.

Obviously, attorney ethics - or the U.S. Constitution, its 1st Amendment, freedom of speech, or the freedom to exercise one's expert opinion and speak his mind based on his professional training and experience - are not worth a damn in the nowadays America.

We want impeachment (or anything else).

Do not stand in our path.

This is NOT called a democracy.

The speech of US AG Bill Barr on the disruptive role of the judiciary in the American democracy

I am publishing the portion of Bill Barr's speech about the role of the judiciary in the legislative process and the executive decision-making without comment for now.

I do not endorse every single argument in this speech, but I do consider the speech an important food for thought for every American citizen and voter.

Time permitting, I will try to provide comments on sections of the speech regarding the role of the judiciary issue by issue.

Here is the link to the full text of the speech.


"Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. 

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency. 

 The Courts have done this in essentially two ways: 

 First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. 

Second, the Judiciary has usurped Presidential authority for itself, either 

(a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or 

(b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power. 

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. 

 As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 

By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation. 

The “constitutional means” to “resist encroachment” that Madison described take various forms. 

As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. 

Conspicuously absent from the list is running to the courts to resolve their disputes.

That omission makes sense. 

When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. 

And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. 

And they will not even try to make the hard choices needed to forge compromise. 

The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts. 

In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. 

How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function? 

Nothing in the Constitution provides a manageable standard for resolving such a question. 

It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.” 

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. 

One way courts have effectively done this is by expanding both the scope and the intensity of judicial review. 

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. 

They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.  

They require what we used to call prudential judgment. 

They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. 

Such decisions frequently call into play the “precautionary principle.” 

This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry. 

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. 

This outlook now seems to have gone by the boards. 

Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs. 

The Travel Ban case is a good example. 

There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes. 

The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry. 

Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims. 

This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration. 

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review. 

The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. 

To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. 

And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship. 

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. 

With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. 

They apply only to executive action. 

Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. 

And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives. 

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. 

First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. 

By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit. 

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. 

No other President has been subjected to such sustained efforts to debilitate his policy agenda. 

The legal flaws underlying nationwide injunctions are myriad. 

Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they 

• radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; 
• they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; 
• they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and 
• they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions. 

Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process. 

There is no better example than the courts’ handling of the rescission of DACA. 

As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration. 

The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote. 

Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA. 

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. 

In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide. 

Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. 

A humanitarian crisis at the southern border ensued. 

And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission. 

The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. 

That is not how our democratic system is supposed to work. 

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief.  
This usurpation climaxed with the Court’s 2008 decision in Boumediene. 

There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. 

For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them. 

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. 

This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system. 

As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers. 

These are two very different realms of government action. 

In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. 

Thus, the Constitution in this arena 

• deliberately sacrifices efficiency; 
• invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and 
• dilutes the government’s power by dividing it and turning it on itself as a check, 
• at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter. 

None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies. 

In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. 

Here, the Constitution is not concerned with handicapping the government to preserve other values. 

The Constitution does not confer “rights” on foreign enemies. 

Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. 

The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane. 

The impact of Boumediene has been extremely consequential. 

For the first time in American history our armed forces is incapable of taking prisoners. 

We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon. 

But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation. 

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded."  

#TheCrimeToBeNamedMelania, Part 9. The bought Judge John F. Lambert issues his bought "kind-of" civil contempt and "kind-of" legitimate decision in the Oneonta Hotel case

I have published so far 8 articles about the saga regarding the Oneonta City Hotel where, likely, developers who have backed up Rep. (D) Antonio Delgado in his election are pushing for the payoff.

And, that payoff is that Rep. Delgado's private attorney, by "coincidence", City Attorney for the City of Oneonta, NY, where Rep. Delgado's new posh district office is located, through fabricated court proceedings, and with the help of a corrupt judge and his corrupt law clerk, have pushed the family of Romanian Americans, lawful immigrant owners of the Oneonta Hotel that housed the poor to stop housing the poor next to the posh new luxury office of Rep. Delgado and be forced by court-imposed fees to sell the hotel to (likely) Delgado-backing developers.

Not to mention that both respondents, Nicolae and Melania Pervu, are open and active supporters of Donald Trump, political opponent of Rep Delgado.

To see all articles of this cycle, please, type "Melania" in the search window on the right.

I hoped against hope that Judge Lambert would have the decency to recuse from this case where he has acted - and it is confirmed in the press - as legal advisor of one of the parties.

Unfortunately,  that did not happen.

This article, the next article in the cycle #TheCrimeOfBeingNamedMelania, is about the super-incompetent and super-corrupt decision Judge John F. Lambert has made in this case.

                              *                  *                  *

Everything in this judicial proceeding is wrong.

JURISDICTIONAL DEFECTS.  GENERAL

First, the petition did not contain the names of the tenants - and, thus, should have been dismissed, as it does not satisfy due process requirements in foreclosure proceedings.

Second, the judge was disqualified from presiding over the case by Judiciary Law 14 (a jurisdictional statute), since his law clerk Mark Oursler (who, no doubt, then researched an penned Judge Lambert's final decision in the case) 

• acted as a legal representative of the petitioner and 
• gave legal advice to the petitioner to file a motion for contempt on a Show Cause (court's) order, as well as 
• gave legal advice to the City as to 
• what kind of evidence and 
• what kind of recommendations for PUNISHMENT to include into their motion/application for Judge Lambert's order to show cause
  

The judge then signed the order - and now have found for his own client, the petitioner, whom the judge de facto represented in this proceeding through his law clerk, as reported by Oneonta City Attorney Merzig himself, in his interview to Allotsego.com.

This is a very clear case of judicial misconduct for which the judge should be taken off the bench and disbarred, together with his law clerk Mark Oursler.

New York State Judiciary Law 14, 16 and 17 prohibits a judge to also be an attorney in his own court and in the case he is presiding in and where he gives legal advice to a party.

Third, the attorney for the Petitioner, David Merzig, while pretending that he represents the City of Oneonta in this proceeding, pursues the interests and wishes of his private client Rep. Antonio Delgado, whom Merzig has been representing - and sharing his office with - since his election campaign.

So, 

• the petition was jurisdictionally defective - thus, any and all orders based on it other than an order of dismissal, are also jurisdictionally defective and void,
• the judge was disqualified since his law clerk acted as a legal representative of the petitioner, giving the City of Oneonta legal advice as to how to proceed in the case, and
• the City of Oneonta's attorney was disqualified, since, in these proceedings, he pursued, without disclosure to the court or opponents, interests of his private client, Rep. Antonio Delgado.

And, jurisdictional defects make a decision in such a case not just void-able, but VOID, as in - never existed, as in - ZERO, a nullity, and any and all enforcement of such a decision - a violation of the respondents' civil rights.

Yet, we have a decision in the case - by Judge Lambert who, despite his established and publicized role as a legal advisor (through his law clerk Mark Oursler) of petitioner the City of Oneonta, which disqualified the judge, sticks like glue to this case.

Here is this masterpiece in full.

The decision really makes one wonder how much Judge Lambert has gotten from real parties in interest - developers that want the Pervus to be forced to sell the Oneonta Hotel for a pittance.

Here we go.  After Judge Lambert quotes a page-full of precedents setting (incompletely and incorrectly) the law applicable to the proceedings in front of 

 here is the decision Judge Lambert has made:  

And here are just some problems with this decision.  

JURISDICTIONAL DEFECT.  CRIMINAL PROCEEDINGS FASHIONED AS CIVIL CONTEMPT OF COURT WITHOUT AN INDICTMENT OF THE GRAND JURY, NOT BROUGHT BY THE COUNTY DISTRICT ATTORNEY AND NOT PROVIDING CRIMINAL PROCEDURAL PROTECTIONS

There is one big problem with the decision though - on top of jurisdictional defects enumerated above.

Neither Judge Lambert, nor his (imbibing) law clerk Mark Oursler know the difference between a civil and a criminal contempt - even if one or the other would be screaming into their faces.

While the distinction is very simple and clear, and procedural protections in criminal contempt proceedings, as opposed to civil contempt proceedings, are much, much bigger.

The difference between civil and criminal contempt is this:  in a civil contempt setting, the contemnor (the person who has supposedly committed civil contempt of court) "holds the keys of the jail cell in his hands).

In other words, the purpose of a civil contempt proceeding is not to secure PUNISHMENT, but to secure ENFORCEMENT of a court order, to make the contemnor COMPLY with the court order that he/she claimed to have violated.

With that in mind, let's look at the end of Judge Lambert's court order.

The court order signed by Judge Lambert contains no indication whatsoever that the respondents, Nicholas and Malenia Pervu, may purge their contempt by complying with the court order that the City of Oneonta claims they have violated.

It is a pure punishment order.

And it was meant from the very beginning as a punishment order - since Mark Oursler, when giving legal advice to the City of Oneonta's (and Rep. Delgado's) attorney David Merzig, specifically told them to include their "recommendations for PUNISHMENT".



Which means - it was never meant to be aa CIVIL contempt proceeding, it was meant from the very beginning to be a CRIMINAL contempt proceeding, without jurisdiction.

And, Mark Oursler and Judge Lambert who have authored the decision, quoting, for show, to CIVIL contempt case law, know full well that what they are doing is just putting a SMOKE SCREEN, so that the decision would LOOK legitimate - even when they know for sure that it is not.  But, they also know that it is very expensive and very difficult to appeal the crap they have created, under the color of state law.

But, it also means, that - the court had NO JURISDICITON over a CRIMINAL CONTEMPT proceedings.

The proceedings were, in their nature, criminal contempt proceedings, and must have been named:

People of the State of New York v. Nicolae Pervu, Melania Pervu, Defendants.

And, such proceedings could only be brought in New York Supreme Court through a grand jury proceeding - see New York Criminal Procedure Law 10.20 (2).

Judge Lambert, who has worked as a criminal prosecutor for many years, and then as a judge presiding over criminal proceedings, also for many years,

 must know that.

If he does not know elementary law regarding his own authority or lack thereof, he should be taken off the bench.

Because, by New York State Law, Supreme Court (where the proceedings were held) may receive jurisdiction over a CRIMINAL case only through an indictment of the grand jury - which never happened in the Pervu case.

Nor did the City of Oneonta attorney David Merzig have a right to prosecute a criminal case - instead of the Otsego County District Attorney, as is his exclusive right, to prosecute criminal cases, under New York County Law 700.

And, by the way, the amount of $25,000 that Judge Lambert required respondents to immediately post as a de facto FINE far exceeds the maximum amount  of fines allowed for a FELONY.  While Criminal contempt is only a misdemeanor, for which the allowable fine is to be not exceeding $1,000 (New York State Penal Law 80.05).

Not to mention that in criminal contempt proceedings award of attorney fees and court costs is not allowed.

But what IS allowed is:

• defendants' right to remain silent;
•  discovery;
•  a burden of proof beyond the reasonable doubt.

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Even if all of the above arguments were not true - which it is - the decision still sucks.

NO FINDING THAT THE PETITION WAS LAWFUL

There is no finding in the decision that the City of Oneonta's petition was lawful.  And it was not - it did not name tenants, and, as I wrote before, an action in a de facto foreclosure cannot stand without naming every single tenant who lived in the Oneonta Hotel at the start of proceedings and including them as parties in the court proceedings.

NO FINDING THAT THE (SUPPOSEDLY) VIOLATED ORDER WAS LAWFUL

 Judge Lambert cited a lot of caselaw that a finding in civil contempt can be only for violation of a LAWFUL court order, so whether the court order that respondents Oneonta Hotel owners supposedly violated was part of the City of Oneonta's burden of proof.

Yet, there is no indication in the decision that the petitioner has offered proof or has proven that the order that the respondents supposedly violated was lawful.

And we know that it was not.

Because, 

1. it was made upon a jurisdictionally defective petition, and 
2. it was made on a legal advice from the judge's own law clerk (which was documented in a mass media publication, with confirmation of that by City attorney David Merzig), instantly disqualifying the judge, and because
3. the City attorney was pursuing in the case interests of his private client, Rep. Antonio Delgado, to get rid of the poor living next to his posh new district office, and, very likely, to get the prime real estate, the Oneonta Hotel, at a low cost, for developers backing him up, not to mention that
4. proceedings were in the nature of criminal proceedings - seeking punishment only - and, thus, could be brought only by the County District Attorney and only through the action of the grand jury, which was not done.

NO FINDING WHAT EXACTLY THE BURDEN OF PROOF WAS

In criminal proceedings - which is what it was, considering what was ordered by Judge Lambert, without any possibility for contemnors to purge the supposedly "civil" contempt - the burden of proof is "beyond the reasonable doubt".

There is no indication of that burden in the decision of Judge Lambert.

In civil contempt proceedings, considering the chance that people can end up in jail if found in civil contempt, the burden of proof is also very high, by clear and convincing evidence.

Judge Lambert has only mentioned that the burden of proof is on the petitioner, citing to case law for that.

But, Judge Lambert never mentioned, to WHAT KIND of burden of proof he is holding petitioner, by law.

So, Judge Lambert was holding petitioner to WHATEVER kind of burden of proof that the judge took from the ceiling - because, when you give an advice to a party to make a certain motion on an order to show cause, then sign that order to show cause, you pretty much pre-judged the case from the very beginning, and it does not matter what kind of burden of proof the law requires and what kind of evidence was there in front of the court.

NO FINDING WHETHER THAT PARTICULAR BURDEN OF PROOF WAS SATISFIED

You will find no phrase in Judge Lambert's decision:

"And the petitioner satisfied his burden of proof by clear and convincing evidence."

Which is an essential flaw in this case - hopefully, the no-less-corrupt Appellate Division 3rd Department will take its corrupt head from its corrupt ass and rule on the likely appeal from this case on the law and not on whatever it usually rules.

And, as the ultimate corrupt cherry on top of the corrupt cake:

A BOND WITHOUT A JUDGEMENT - WTF IS THAT?

Judge Lambert ordered de facto criminal defendants to put a $25,000 bond into the court from where Judge Lambert's de facto client City of Oneonta, a party petitioner in the proceedings to whom Judge Lambert's law clerk Mark Oursler gave legal advice to file the motion for a finding of contempt.

Into that bond the city will supposedly be freely dipping to "cover the costs".

The kicker is though that 

1.  Judge Lambert quoted case law that a civil contempt order may not be made by the court without a finding that some rights of the complaining party were violated, 

2. and, therefore, if Judge Lambert is talking about covering COSTS TO RESTORE something and ATTORNEY FEES, those COSTS and ATTORNEY FEES must be ASCERTAINED by the court and a JUDGMENT for a specific amount must be made.

Here we have a bond without a judgment.

Sweet.

The Pervus are ordered, at the threat of jail for non-compliance with this (kangoroo) court order, $25,000 into the court account as a BOND, the court already ordered them to pay ALL COSTS and ALL ATTORNEY FEES of the city, but the court ACKNOWLEDGED that neither costs nor attorney fees are ascertained - and that IF parties "DISAGREE" about the amount (which Judge Lambert was supposed to determine and reduce to a judgment in his order), then Judge Lambert will hold yet another hearing.

I have an impression that Judge Lambert has sat on that bench for much too long, and the longer he sits there the more abysmal will become his knowledge of the law and his integrity.

The decision he produced is not just an F decision, but an FFF decision which a 1st year law student will be expelled from law school if he writes something like that - due to how adamantly incompetent it is.

But, knowing Judge Lambert's usual attitude when unlawfulness of his decisions is challenged - "move up or move on", which is translated into plain English as "appeal or shut up", that's the choice the Pervu's will have to make - 

• to file or not to file a notice of appeal with the Otsego County Clerk within 30 days of the decision, 
• to serve or not to serve it upon the opponents, and 
• to file or not to file the appellate record an brief with the Appellate Division 3rd Department within 9 months from the decision, 

or - to keep their heads low, obey and pay up.

What the robbed respondents in this case will or will not do is their own choice.

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But, what this case, ladies and gentlemen, does clearly demonstrate to the public is the quality of New York State judiciary - its competence and its integrity.

You have just saddled yourself with this judge for the 2nd term last year - for another 9 years from now.

He is a supervising judge of "problem solving courts", where corruption is the ripest - all those hungry "providers of services" waiting to get mandatory clients who must pay up for the court-ordered "services" in order not to go to jail.

He is also a supervising judge of DWI courts.

And he is also absolutely incompetent and absolutely corrupt.

By the way - did you know that the U.S. Supreme Court has granted itself and all other judges in the country an immunity for violation of the law and for corruption, barring victims of such corruption from any remedy in a federal civil rights lawsuit?

Of course, there remain the (fake and non-existing) judicial discipline and the (non-existent) possibility that the former colleague of Judge Lambert, DA John Muehl who gets "victories" from John Lambert in criminal court will start criminal proceedings for corruption against Judge John Lambert, his law clerk Mark Oursler and their de factor client, Rep Delgado's (and City of Oneonta's) attorney David Merzig.

When hell freezes over, of course.

Doing good, people of Otsego County, aren't your?