A new prosecutor funded by convictions and "expected" to raise conviction rates and revenues for Delaware County - well done, judicial candidates Porter Kirkwood and Richard Northrup!

The local newspaper for Delaware County, New York, reported on July 23, 2015 that "the Delaware County Board of Suprevisors authorized the funding of a new position in the District Attorney's office" at its meeting on July 22, 2015.

The salary for the new prosecutor is expected to be $32,084 per year.

The benefits for the new prosecutor, including "retirement, health insurance and other 'fringe' benefits" "increase the total to $51,872", according to the Walton Reporter, Lillian Browne.

Thus, $19,788 per year for health insurance (for the prosecutor and the prosecutor's family, no doubt), as well as the prosecutor's health insurance will be paid from - guess what - conviction fines!

Delaware County gleefully advertises this completely unconstitutional arrangement through the lips of its "STOP-DWI Program Coordinator" Scott Glueckert, who is also the county's probation director.

Walton reporter cites Scott Glueckert, the Delaware County public official to say the following: 

• that the new position will be funded with a portion of the $200,000 reserve in the STOP-DWI fund, a fund being formed by fines obtained from convictions for DWI; and
• that Scott Glueckert thinks that "the most productive use [of the money] is to give it to an agency that will use it effectively to put more offenders behind bars or on probation and hold them accountable for the crime they've committed".

Now, several conclusions can be drawn from this starkly frank and starkly unconstitutional statement.

First.

Since the statement comes from the Delaware County's director of probation, funding of the prosecution by:

1) probation (post-conviction management authority that has no right to control the prosecution, financially or otherwise);

2) out of conviction funds (which undermines the presumptive neutrality of the prosecution and creates a direct incentive for the prosecutor to drum up convictions, whether such convictions are lawful or not) 

- is the POLICY and the LAW in Delaware County.

2) "Savings to taxpayers".  

I am one of Delaware County taxpayers and, yes, I am interested in savings.  But not in savings in violation of the law and especially in violation of the U.S. Constitution, "savings" that will subject the Delaware County to civil rights lawsuit under 42 U.S.C. 1983 as an unconstitutional financial arrangement.

By the way, not only the Delaware County itself, but its public officials, individuals who are responsible in promoting such a program, starting from 

• judicial candidate Delaware County Attorney Porter Kirkwood (without whose blessing this "arrangement" could not have emerged);
• judicial candidate Delaware County District Attorney Richard Northrup (without whose blessing this "arrangement" could not have emerged either - the DA had to have given consent to accept this perverse financial incentive undermining his entire office's integrity, as well as criminal defendants' constitutional rights);
• probation director/STOP DWI "coordinator" Scott Glueckert who openly admitted that the interesting financial arrangement is MEANT to provide incentives to the new prosecutor - and to the DA's office to convict more.

Scott Gleuckert did not stop at his initial statement indicating that:

1) the new prosecutor (and the DA's office) will be funded out of convictions and

2) that the money is meant to be "effectively used" to increase the number of convictions.

Scott Gleuckert went further and made public statements to the Walton Reporter as to the revenue obtained by the Delaware County from DWI convictions.

In the "down" year, according to Scott Gleuckert, as reported by Lillian Browne, of Walton Reporter, the Delaware County "might net $75,000".

In an "up" year, according to the same source, the revenues from DWI convictions of the Delaware County are "up to $150,000".

Mr. Glueckert further publicly expressed an "expectation" that "the new prosecutor will create additional revenue through successful conviction of cases, which will help pay for the salary and benefit costs".

Now, wait a minute, Mr. Glueckert.

Didn't you just said that the salary of the prosecutor will be paid by the taxpayers and not from conviction fines?

And did not you just said that the monies for the new prosecutor are meant to "simply" increase the conviction rate, make more offenders "accountable for their crimes" and, thus protect the public.

Now you are saying that the new prosecutorial position is actually to bring more revenues to the County?

Nothing like a public official putting his own foot into his own mouth - deep.

Once again, this "legal wonder" of an arrangement could not have seen the light without the help of two attorneys who currently run for two judicial positions in the Delaware County:

Porter Kirkwood, the current Delaware County Attorney, and

Richard Northrup, the current Delaware County District Attorney

Their feet are also in their mouths - equally deep.

It is clear that by pandering such "savings" to Delaware County taxpayers they are trying to appease voters - financially - which means to bribe them into voting them into office, which I will address separately to appropriate authorities.

According to Delaware County District Attorney Richard Northrup, as reported in the same article, in 2014 the DA's office prosecuted 172 DWI cases, in 2015 so far - 93 DWI cases.

Richard Northrup indicates that his office "does not compile conviction rates" - of course, it doesn't, because if it does compile such statistics, it will have to disclose it through Freedom of Information request.  The easiest way to beat a Freedom of Information request asking for potentially damaging statistics is to simply not "compile" such statistics.

Yet, what Mr. Northrup did not take into account is that such statistics can be easily compiled by FOILing for copies of dispositions themselves - one will immediately see how many of 172 DWI cases in 2014 resulted in a conviction, bringing revenue to the county.

Richard Northrup expressed support for the financial arrangement - thus, in my opinion, approving of the policy, participating in the bribery of voters, and exposing himself, his office and the county to liability for civil rights lawsuits.

Richard Northrup also expressed an "expectation" that "the quality of dispositions" will be improved with the program.

I have no doubt that by "the quality of dispositions" Richard Northrup meant the conviction rate, otherwise his new prosecutor will simply have no funds to be funded out of.  

Of course, Richard Northrup concluded his interview to the newspaper with the usual politically correct words that with the new arrangement his agency "will be able to take a more aggressive stand against drunk drivers and through treatment and deterrence make the roads in our county safer for everyone".

Yet, the money paid for the new prosecutorial position - and to the DA's office - out of conviction fines - tells a completely different story, that convictions will be sought not to be "tough on crime", but for much more prosaic purposes - to increase revenues for the county, something a county prosecutor faithful to his oath of office MAY NOT even CONSIDER as his role or goal.

I would like to remind my readers that Delaware County District Attorney's office has recently been the target of the media because of nebulous scheme of financing and employment of social services investigators.

I would like to remind my readers that the Delaware County District Attorney's office aggressively prosecutes a woman, Barbara O'Sullivan, an active critic of police and judicial misconduct, who is the victim of a retaliative vehicular assault by the a Delaware County police officer Derek Bowie, while that police officer's uncle is employed by the Delaware County District Attorney who neither disqualified himself or his office, nor even disclosed to the court the fact of employment of the alleged victim's uncle.

I would like to remind my readers that the Delaware County District Attorney signs "deals" with drug offenders reducing their criminal sentences in exchange for indemnification (release from civil liability) of Richard Northrup personally, and the county, state and even federal public officials, officers and employees.  I have witnessed and reported one of such deals, and was retaliated by sanctions by the "drug court creator" Judge Becker (now swiftly retiring before expiration of his term) who benefited from that unlawful indemnification, but "so-ordered" that unlawful indemnification that was meant for the prosecutor, the police and for himself.

So, this "arrangement" is no surprise from the point of view of integrity of the Delaware County District Attorney's office and this particular District Attorney specifically.

But, surprise or no surprise, Richard Northrup is running for a County Judge, as well as Porter Kirkwood, another mastermind of this completely unconstitutional "arrangement" pandered to voters as "savings" to the county, while it has the potential to blow up into the taxpayer's face with as many expensive federal lawsuits, as many DWI prosecutions this new prosecutor will handle.

Voters and taxpayers of Delaware County - don't get hooked up on the false promises.

Vote for impeachment of Richard Northrup.

Vote for impeachment of Porter Kirkwood.

And do not vote them into yet another public office, now a higher and even more powerful office, the judicial office where they will act like corrupt kings with "immunity".

With such a "record of integrity" before they are on the bench, when/if they come to that bench, you will have a disaster on your heads much worse than the outgoing judge Becker.

And one more interesting statement of Scott Gleuckert is that the STOP-DWI program (funded by fines and fees paid by convicted criminal defendants) pays the "local law enforcement agencies" to conduct road checks and patrols.

So, when a prosecutor is prosecuting a criminal defendant, he or she is supposed to be neutral.

Moreover, when a police officer is investigating a crime, he is supposed to be a neutral investigator.

Not so on both counts, if both the prosecutor and the police, and the probation with its probationer-paid expensive "programs" supported by violation of probation petitions and by prison/jail convictions, are paid out of convictions.

So, what we have is a perfectly spelled out corruption scheme.

Not to mention that the legal aid attorneys - the details will be in my next post - are, guess what - also paid from conviction fines.

One big happy family! All paid out of conviction fines!  In a county with 95% conviction rate (whether Richard Northrup "compiles" the statistics or not).  In the country with the most per capita imprisoned population than anywhere in the world and certainly than anywhere in the civilized countries.  In the country where prison industry is run by for-profit prisons and constitutes a big business.  In the country which has recently become the target of attention from international community because of its "criminal injustice system", to the point that it warranted attention of the President.

And this little "financial arrangement", pandered for all the good declared reasons, savings to taxpayers and safety on the roads, is the cornerstone of what is wrong in our criminal justice system.  

Because this "financial arrangement" where the prosecutor and the police are paid out of conviction rates is called corruption of the prosecutor and the police - and it stinks.

As to the "human cost" of this corrupt arrangment, on top of the money that mostly indigent DWI defendants must pay in terms of various "fines", "surcharges", treatment costs, "crime victim funds", DNA funds, ignition interlock devices "rented" per month from probation agencies or agencies associated with probation, at ungodly prices - unlawful DWI convictions brought about by perverse financial incentives for the police and the prosecutors have one other potential cost, complete loss of ability to earn a living in rural communities where there is no public transportation and where being able to drive is an equivalent to hold any meaningful employment.

Recently, the New York State Department of the Motor Vehicles introduced regulations where an individual loses his or her driving license PERMANENTLY, FOREVER if he or she has three alcohol or drug-related convictions.

Those convictions are obtained very easily.

First, you are stopped by a STOP-DWI funded police officer who is paid based on how many stops leading to an alcohol-related conviction he or she can generate.

The officer will then lie to the court under oath (called "testilying") that the officer saw you with "glassy eyes and impaired motor co-ordination".

The local justice (who is most often not an attorney) or the County Judge (who is most likely a former prosecutor) will rubber-stamp that testimony, if it even hears it.  In most cases, there is no testimony.  The legal aid funded out of conviction fines, who will not be assigned to more cases (paying from $60 to $75/hr depending on whether it is a misdemeanor or a felony charge) will plea you "down" to a DAI (driving while ability impaired), which is still a conviction countable towards the "three strikes and you are out".

As a result, you lose PERMANENTLY your ability to earn a living because of corrupt actions of the police and the prosecutors financed through such little arrangements.  

You cannot earn a living without a driver's license in America, especially in rural communities. 

And, when you are unable to get a job because you were stopped by a conviction-funded police officer, prosecuted by a conviction-funded prosecutor, represented by a conviction-funded legal aid, pled down to an "AI" and now have a "record" for purposes of DMV, because you were persuaded, three times, by your conviction-funded legal aid attorney that to go to trial and fight for your rights is not good when an opportunity to "plead down" to an "AI" with "just" 90 days' suspension of your license exists - by such "simple" steps you very easily step, as thousands of New Yorkers do, on a path towards poverty, homelessness and human degradation. 

And that is a human rights problem of constitutional dimensions.

Once again on the composition of the Statewide Commission on attorney discipline - "experts" on the loose

The recent invention of NYS Chief Judge Jonathan Lippman will soon hold the so-called "public hearings" on how to make attorney discipline more "uniform", "fair", and "effective". 

I already blogged about the composition of the Commission and as to how the Commission scheduled the so-called "public hearings" where both the composition and how the "public hearings" are scheduled suggests that the Commission is not serious about its role in changing the situation where attorney discipline is used not for protection of the public, but as a shield for politically connected attorneys and as a sword against critics of such attorneys' misconduct and against misconduct in the judiciary and other branches of the government.

I would like to note once again the point that I made earlier in my blogs in connection with discussion of the case North Carolina Board of Dental Examiners v Jacobs, a case decided by the U.S. Supreme Court that was vigorously opposed by multiple bar associations as bringing about the doom to the way discipline is imposed - by stripping the so-called immunity from lawsuits for actions violating anti-monopoly federal laws of the United States against members of disciplinary committees who are practicing attorneys and players in the same market themselves.

In that blog, posted before the U.S. Supreme Court has made its decision actually stripping the immunity for monopolistic activities of attorney members of disciplinary committees, and before I filed the currently pending request with the Federal Trade Commission to investigate and prosecute all attorney disciplinary committees in New York State for monopolistic activities, as the U.S. Supreme Court provided in North Carolina Board of Dental Examiners v Jacobs, I raised an issue pertaining to the oral arguments in that case that I've heard (audio recordings of oral arguments before the U.S. Supreme Court is publicly available on the Internet).

The issue was raised by one of the U.S. Supreme Court judges - isn't it appropriate to have experts "serve" on such committees, and who other than dentists (or, in the case of the Statewide Commission - attorneys) would know better the ins and outs of the practice of their profession, to see whether an attorney violated rules of ethics and of professional conduct, whether discipline is necessary, and what kind of discipline is necessary.

My response to that question - then and now - is:

Problem No 1 - the role of an expert in any litigation is that of EDUCATOR OF THE FACTFINDER, and only when the factfinder NEEDS such education.

An expert whose knowledge is being used in litigation to inform the factfinder may never BE the factfinder, may never be conflated with the factfinder.

In fact, in all jury trials, attorneys for parties painstakingly weed out attorneys and legal experts from the jury, so that the factfinders make their determinations only on evidence presented, and not be swayed by pre-conceived notions of experts on the jury.

Problem No. 2 - an expert in New York state is not allowed to testify on the ultimate issue of litigation.  It is a settled rule.  Putting an expert as part of the factfinder undermines that rule.

Problem No. 3 - Moreover, even when the expert's knowledge is required, that expert must be NEUTRAL - another must.

When the so-called expert has a vested financial interest in the market he is testifying about, when the expert is deriving income from that market as a participant in that market, his or her testimony is tainted and is inadmissible as a matter of due process, fairness and equity.

Expert neutrality is a well settled rule.

Problem No. 4 - there is no jury to sway on that Commission, all other members-factfinders have vested interest in preserving the status quo, as bad and as stinking as it is at this time.

With that in mind, I would like to focus on two individuals chosen by Judge Lippman to "serve" on the Statewide Commission for attorney discipline.

One is professor Stephen Gillers.

The other is professor Hal Lieberman.

I was educated in law school in legal ethics on books of professor Stephen Gillers.  Those books are still actively sold on Amazon.com and, I am sure, law students all over the country are being taught about "legal ethics" based on Professor Gillers' law books. 

The problem with professor Stephen Gillers on the Commission is problems No. 1  and No. 2, and, I would say, to a certain degree No. 3 - an expert-factfinder, an expert on the jury.  Even if the factfinder would consist, as it should have, of a cross-section of members of the public, since the purpose of attorney discipline is protection of the public, presence of an expert as part of the factfinder rather than as an expert whose opinion is consulted by the factfinder without including the expert into the decisionmaking.

The biography of Professor Gillers suggests that he derives his livelihood from teaching about regulation of the legal profession.

Thus, professor Gillers will not be the one to suggest what the public needs to receive truly independent legal services - a full deregulation of the market of legal profession and liberation of the legal professionals from the slavery of brown-nosing the judiciary under the fear of losing their livelihoods that is in the judiciary's hands, and to turn a blind eye to rampant judicial misconduct occurring in practically every court in this country, for the same fear of losing their livelihood.

Instead, professor Gillers publishes articles such as "Lowering the bar" where he indicates that the public is not properly protected by attorney discipline - but makes no mention whatsoever in that 58-page article of the constitutional infirmities of attorney discipline procedure in New York, its failure to protect the public because of its selective non-enforcement to influential and politically connected attorneys, as well as attorneys who are family, employees or friends of influential people, including judges, of the rampant bad faith and self-interest in the attorney disciplinary committees.

In that same article, "Lowering the Bar", (available on the Internet for free in pdf format, please, look up the article, it's worth it - but there is no way I can interlink on this blog a pdf document  downloadable from that website), which was highly praised in the press, Professor Gillers expresses a belief that attorney discipline in New York is imposed mostly for three reasons:

• violence;
• various types of dishonesty in and out of court;
• neglect of clients.

Professor Gillers makes NO references in his article to the possibility of attorney discipline as:

• elimination of a successful solo independent competitor by the members of the disciplinary committees, practicing attorneys;
• elimination of a critic of judicial misconduct, a civil rights or a public defense attorney

Raising such issues will, of course, most likely result in Professor Gillers not being able to "serve" on multiple committees around the country and to lecture around the country on attorney regulation - the sterilized version.

Since Professor Gillers closes his eyes as a scholar to these important topics which should be core topics in protection of the public from truly bad attorneys, there is no reason to expect Professor Gillers to stand up to these issues as a member of the Statewide Commission.

The problems that I see with appointment of Professor Hal Lieberman, adjunct professor of the Columbia Law School, (my personal opinion, protected by the 1st Amendment, as it is on matters of public concern, protection of the public from incompetent attorneys while ensuring true access to courts to all members of the public guaranteed by the 1st Amendment of the U.S. Constitution) are problems No. 1, 2 and, most prominently, 3.

Professor Hal Lieberman was a trial counsel in New York attorney disciplinary committee for the 1st Department for 13 years, as he discloses in his biography for the book on attorney discipline that he sells on Amazon for $209.00 a piece, and is and has been for decades a practicing attorney representing other attorneys before that same disciplinary committee.

In other words, Professor Lieberman is an insider of the attorney disciplinary system deriving his income from the system, and as such, in my opinion, he fails on the issue of expert neutrality - and is especially dangerous as an expert-factfinder whose authority may sway the factfinders.

While Professor Lieberman did raise publicly issues whether attorney disciplinary proceedings in New York are fair, same as Professor Gillers, Professor Lieberman will not seriously consider protection of the public - because such a stance will run contrary to the interests of his paying clients whom he represents before the disciplinary committees and who provide for adjunct Professor Lieberman's livelihood.

Moreover, Professor Lieberman made a statement in one of his articles or blogs which I found disturbing, in one of his blogs, that the fact that disciplinary committees win 90% of disciplinary cases somehow is evidence of attorney discipline being administered "vigorously" and "effectively".

Yet, one area where disciplinary prosecutors do not dedicate any of their otherwise "vigorous" and "effective" work is - criminal prosecutors (and other influential attorneys, of course).

If that is true, then 95% or more of criminal convictions in this country is evidence of vigorous and effective work of prosecutors.  Yet, prosecutors (also licensed attorneys subject to attorney regulation from which Professor Lieberman derives his income) are subjected now to the increased public concern and awareness of their rampant misconduct. 

Moreover, the system of criminal justice rendering 95% of criminal convictions and the highest in the civilized and uncivilized world rate of incarceration per capita of population in a for-profit run prison system is the target of increasing criticism around the world - and, most recently, in the presidential address. 

Hal Lieberman, a professor, a lawyer and an insider of the disciplinary system, simply cannot be so naive as stating that 90% success rate (and maybe higher) of disciplinary committees in New York is the result of those committees' hard effective vigorous work - and not the crooked way the system is set and the even more crooked way in which the system works, whitewashing the high-and-mighty attorneys and dedicating the "limited" resources in a seemingly unlimited way against whistleblowers of judicial misconduct, solo criminal defense and solo civil rights attorneys.

I have written on this blog extensively, with documentary examples, of bad faith, fraud, incompetence and outright political retaliation in attorney disciplinary committees.

Multiple attorneys cited in multiple lawsuit rampant misconduct of attorneys in disciplinary committees.

Recently, a lawsuit was filed as to the policy of the 1st Department disciplinary committee, where Professor Lieberman worked for 13 years, of a long-standing policy of white-washing and destroying files and complaints against politically connected attorneys.

Recently, I FOILed statistics on attorney discipline in New York.  New York Court Administration, the same court system under the guidance of the same Judge Lippman, denied me access to that statistics and to records of appointments to the disciplinary committees.

It appears that New York court system - intentionally, in my view - does not keep statistics as to whether discipline is imposed upon solo attorneys, civil rights attorneys, criminal defense attorneys disproportionately to attorneys from large law firms employing relatives of judges.

Archives of complaints in the disciplinary committees are not preserved.  I know it for a fact as to the 3rd and 4th Department where I have personal experience with denial of access to those files, on my own behalf and on behalf of my client (and husband), and with denial of my complaints against attorneys working for or connected to the government, with the letters of denial being template letters bearing no file numbers of attorney names and preventing the tracking of the disciplinary files of such attorneys.

In fact, in the 1st Department disciplinary committees, according to an insider's lawsuit of attorney Anderson, complaints against politically connected attorneys are destroyed and whistleblowers of that misconduct, such as attorney Anderson, fired.

Lawsuits against disciplinary attorneys are routinely dismissed on grounds of "judicial" immunity.  Yet, disciplinary attorneys act as prosecutors - part of executive branch - in courts which legislate, adjudicate and, through disciplinary committees as "arms of the court", prosecute attorney discipline, a complete disdain to the concept of separation of powers or the true rule of law.

None of that I saw in Professor Lieberman's blog, or his articles.

I guess, touching upon issues that are too sensitive, which are at the core of what is wrong with the legal system, which are at the core of why there is no hope for truly independent legal representation in the State of New York while attorney regulation exists the way it does, may undermine financial well-being of the "expert", and, as part of the Commission, investigator and trustee of public safety and of public access to legal services. 

In my personal opinion, it appears that Professor Lieberman's vested financial interest in preserving the status quo of attorney regulation - including his insider ties to the industry and his income derived from representing attorneys before disciplinary committees and being on speaking terms with attorneys in such disciplinary committees - undermine the neutrality or appearance of neutrality, for that matter, of Professor Lieberman as an expert/participant in the Statewide Commission that is seeking to establish uniform and fair attorney discipline while protecting the public.

For that reason, I will not really be holding  my breath waiting for reports from the Commission advised by such experts.

On the nature of orders to show cause

It is my experience that both the pro se litigants not trained in law, and seasoned attorneys - and even judges - often have an interesting misconception about the nature of what is called "an order to show cause".

The usual "order to show cause" is - as it says - an order of the court, with a peculiar language that is the source of confusion.

The "order to show cause" usually demands that the litigant or his/her attorney "show cause" to the court as to why something should NOT be done.

This negation, once again, is the source of confusion, leading the party or attorney against whom the order to show cause has been filed (and often, the court) to believe that the burden of proof is somehow on the party or attorney who the order to show cause demands to show why things should NOT be done to them or against them.

Yet, as a matter of law, an order to show cause is nothing other than a motion - only a motion made upon an order of the court.

An order to show cause may be made upon application of a party or a party's attorney if the party is represented, or upon the court's own application (called sua sponte).

The reason to apply for an order to show cause for a party or attorney is usually to obtain some ruling from the court BEFORE the motion that is made by order to show cause is reviewed and decided, such as - some immediate relief (injunction in a divorce action against looting of marital assets by one of the divorcing parties, or prohibition to one of the parents from taking a child out of the state while the motion for temporary custody is pending).

Orders to show cause can provide for a variety of immediate reliefs, most commonly they change the statutory deadlines for service of process.

As another illustration, usually a motion on notice may be made by personal delivery of the properly made notice of motion (CPLR 2214(a)) and supporting affidavits or by delivery by mail if the party to be served already appeared in litigation, pro se or by an attorney (pro se parties may not serve their own motions, they should ask somebody else to do that and provide an affidavit of service so that the pro se party is able to file the affidavit of serve to the court before the returnable date).

In New York, a motion on notice should be personally delivered at least 8 days before the "returnable date" of the motion, the date when the court is to hear the motion. 

If service is by regular mail, then 5 days must be added to the 8 day minimum. 

By overnight mail - 1 day should be added. 

If the moving party wants to be able to have time to react to the opposition to the motion, it is prudent to serve the motion 21 days or more in advance of the returnable date (to pick the returnable date, if that is possible, 21 days in advance of service of motion) and demand from the opponent, under CPLR 2214(b), to serve responding papers within 7 days of the returnable date.

If a motion on notice is made before a judge who has regular motion terms in a particular court, it is easy to verify when the next motion term of that particular judge is going to be and, if it will be far enough in time to allow for the statutory period to serve the notice of motion, the party may pick that date without the court's permission, put it into the notice of motion and serve the opposing party with a "notice of motion" and supporting papers (affidavits, exhibits).

If the presiding judge does not have a regular motion term in that particular court, the party or attorney intending to make a motion may inquire with the court clerk to set that date, and then make the notice of motion.

With motions made on "orders to show cause", shortened service may be ordered by the court.  The court may order service by mail within less than the statutory minimum of 13 days, or may order service by alternative means, such as fax or e-mail, which would not be an appropriate way to serve a motion on notice, the statute does not allow such means of service for motions made on notice.

One needs to realize that if one is asking for permission of the court to sign an order to show cause, one can get three answers -

• "yes", the court will sign the order to show cause as it is drafted and suggested by the party and grants all the preliminary relief requested before the motion is heard and decided,
• "no", the court refuses outright to sign the order to show cause and, if there is no anti-filing injunction upon the party, the party may then proceed to make the motion on notice (while most likely losing a filing fee of $45.00 already paid for the order to show cause), and
• "yes, but" - when the court allows the motion on an order to show cause to proceed by signing the order to show cause, but in a modified format, crossing out some relief requested, and modifying the drafted order to show cause as to other relief requested.

Yet, with that said, that is the end of what distinguishes a motion made on an order to show cause from an order made on a notice of motion.

What unites both motions made on notice of motion and motions made on orders to show cause is:

1) both are still motions, to be heard and decided by the courts, with all applicable laws as to how a motion is properly made (in New York - a motion is made when it is served, and served properly, so a defect of service in making a motion may defeat a motion in its entirety, be it a motion made on notice or on an order to show cause);
2) the burden of proof is still on the moving party - the party who either made a motion by serving a "notice of motion", or the party who applied to the court to first sign the "order to show cause" and made a motion by serving the "order to show cause" and papers upon which it was granted, and served it in the way that the order to show cause required.

The language demanding from the opposing party to "show cause" why things should NOT be done to the party is, once again, confusing, and may suggest that the burden of proof in motions made on orders to show cause somehow shifted to the opposing party.

As a matter of law in New York, that is not so.

The moving party still bears the burden of proof - in other words, the party who applied for the order to show cause must still FIRST prove to the court that it is entitled to relief, and only then the court can grant the motion if there is no opposition. 

I am not suggesting that if the party obviously did not make its burden of proof, one should not oppose an order to show cause, it is a dangerous strategy, because in our day and time, with overworked, or biased, or inexperienced, or lazy judges (motion is TL;DR - "too long, did not read"), lack of opposition is sometimes a sign that a motion should be granted no matter whether there is an entitlement to relief in law or not.

What I am saying is that the opposing pro se party should closely analyze whether the party who applied for the order to show cause "met the burden of proof" and is entitled to relief as a matter of law when opposing the motion, because often pro se litigants are shell-shocked by the words "why XYZ should NOT be done" to them - indicating to them that XYZ is somehow inevitable.

Orders to show cause can also be made on the court's own motion (sua sponte).  I always believed that such orders are inappropriate because they put the court in a position of an advocate, witness and adjudicator/judge in the same case.  Yet, such orders do happen, and they should be opposed in the same way.

If the court undertakes to make a motion, it must abide by rules applicable to motion practice: the motion must be properly served, and the court must meet the burden of proof before granting - to itself, obviously - relief it is seeking.

And sua sponte motions should be opposed the same way as motions by parties are opposed.

This blog has been posted as a response to several conversations I had with my readers, pro se parties in litigation, who felt confused and intimidated when facing orders to show cause.

A motion to vacate the ex parte decision in the Mokay trial was filed

New York statute, CPLR 5704(a) allows to file motions to vacate directly to the Appellate Division of orders of the court made in an ex parte manner.

Since that is exactly what Judge Kevin M. Dowd did in the Mokay case (see my earlier blogs on pertaining to the Mokay saga searchable by the words "Mokay" in the search window on the right of the blog) by proceeding to trial in the absence of counsel who was on a legitimate documented medical leave, diagnosed by a licensed physician for a documented back injury and pain, and by making a decision in that ex parte trial, of July 12, 2015, such a decision is, as a matter of law, in my legal opinion, an ex parte decision addressable under the CPLR 5704(a) to the Appellate Division.   

For that reason and to protect my client's rights, I have filed a motion to vacate pursuant to CPLR 5704(a) and my client's constitutional right to a jury trial with the Appellate Division.

An attorney, by being injured and being on a medical leave ordered by her physician, is protected by federal privacy laws and by the federal Americans with Disabilities Act which pre-empts any inconsistent state law, and no court may order her to appear despite her doctors orders not to work and despite her physical inability to move due to her injury.

No court may rule that by not appearing because of her injury and medical leave, an attorney somehow waives her client's state constitutional right to a jury trial.

Let's see what the Honorable appellate court will make out of Judge Kevin Dowd's spiteful shenanigans.

Check your balances - the price the American society is paying for the life tenure of federal judges as a claim of judicial independence

The much claimed judicial independence is hailed as a reason for lifetime tenure of federal judges.

Judges are claimed to be independent of politics.

Yet, judges nominated by Democratic presidents, as well as judges nominated by Republican presidents, linger in office without desired retirement to ensure that their successor will be nominated by a president of the same party that nominated them.  That does not seem as being far away from politics to me.

Having as long-time friends high-ranking government officials, as Judge Antonin Scalia claimed the U.S. Supreme Court justices have a history of having, also does not put judges away from politics.

Being "free from political pressure" translates in everyday English as not having to re-run for judicial office.

Yet, judges come to that judicial office well advanced in age, at or long after 50 years of age.  At this age, lawyers are usually very well set in their careers and already generated enough income and have enough savings to retire comfortably, judicial election or appointment or not.

So, talking about judicial independence in terms of being free from judicial elections, in application to representatives of the very-well paid legal profession (and majority of judges are not paupers when coming to the bench, they are usually either successful governmental officials or successful law professors) is not really forthcoming.

What is also taken out of the consideration of the so-called judicial independence is that at the time judges usually come to the U.S. Supreme Court bench (and federal bench), they usually have kids of college age at the least.

Those kids most often follow in the path of the judge-parent.

They need to make their own career in law, and these children may and do become a real danger to judicial independence of their parents who are life-tenured judges.

Exercise your "judicial discretion" my way - and I will appoint your child to a prestigious and well-paying position, a stepping stone for the child's further legal and political career.

And judge Antonin Scalia veered that way.

He decided Bush v Gore for Bush, where Bush's running mate Dick Cheney was Scalia's longtime friend.

And Scalia's son was nearly immediately appointed into the Department of Labor.

Judges have children.

They have friends, siblings, in-laws and friends.

All of them want their careers to be furthered.

Judges, such as Antonin Scalia, believe that recusing from cases of friends is impracticable, as it will stall the work of the U.S. Supreme Court.

So, they sit on cases of their friends.

And rule for their friends.

And, since their friends may be in the U.S. legislature, the U.S. legislature does not impeach, and does not enact rules that would stop this corruption.

And judges write their own rules of judicial conduct - and enforce them in their own closed circles, or rather, magnanimously decide that there is no misconduct because "all U.S. Supreme Court judges had as friends high-ranking government officials", as Scalia said.

Judges attend duck-hunting trips with friends who are parties in front of them.

Judges attend Christmas parties, in other words, are wined and dined, by parties in front of them.

And they can be doing it for a lifetime - because there is life tenure.

For that reason, I believe, life tenure should be replaced, by constitutional amendment, to 2-year terms maximum.

And the U.S. Supreme Court should be expanded to 200 to 250 judges - enough to serve the growing population and caseload in this country's courts.  9 judges, most of them past the usual retirement age, many of them well past that age, to serve 13 circuits and 50 states as the court of original jurisdiction and the ultimate appellate court from state and federal courts is simply grossly inadequate.

This country has a large supply of brilliant men and women who can serve as Supreme Court justices.  Let them serve.  Let them not have the time get entrenched with their "good friends" in the government, undermining the "checks and balances" principles upon which this country is founded.

Let them not have the time to build their children's careers upon favors given to their "longtime friends".

And let's address our respective U.S. Senators to introduce laws to make judges really accountable for corruption and impropriety in office - because the "self-regulating" judiciary, as it exists now is - no, not a joke, it is a tyranny that can cost this country a lot of turmoil and blood to change, if it is not changed radically, peacefully, through lawful process - and soon.

Shorter terms in office and larger number of justices will prevent the most severe cases of corruption, nepotism and cronyism.

Voters should also push their U.S. Senators and representatives in Congress to introduce and enact legislation preventing employment of family members of federal judges in other branches of federal government, vaster disclosures of income by federal judges, including non-monetary gifts like free trips and dinner invitations, and significant and well-defined punishments for judges for failure to disclose conflicts of interest, such as presiding over cases where a party or attorney for a party is a family member or friend of a judge.

Without such drastic changes we will be where we are - in a mess where ex parte communications of Antonin Scalia during hunting trips with a friend who is a party in litigation, or promotion of Judge Scalia's son's career at the expense of the American public after the father put a particular president on the throne.

Quid pro quo in the judiciary should end, soon.

On shining integrity of U.S. Supreme Court Justice Antonin Scalia - "those **** do not even bother to pretend anymore, do they?"

Justice Antonin Scalia argued constitutionality, propriety, reliance on history and tradition in the same sex marriage case. 

What he is doing in his own practice though, appears to be too much of the wrong "family tradition" - nepotism and cronyism, and too little due process that Justice Scalia apparently hates. 

Just some facts.  I am sure there are others...

In 2000 Antonin Scalia, as part of the majority of the U.S. Supreme Court, decides the case Bush v Gore, handing over the presidency to George Bush-the-son.

The very next year, in 2001, Antonin Scalia's son Eugene was appointed by President Bush-the-son to be a chief legal officer in the U.S. Department of Labor.

To nominate Judge Antonin Scalia's son George Bush used a "back-door procedure" bypassing the U.S. Senate. 

Nobody is seeing anything corrupt here, right?

The more - the merrier.

In 2004 Antonin Scalia had a duck hunting trip with his "longtime friend" Dick Cheney, Vice-President to - guess who - President Bush whom Antonin Scalia put on the throne.

This little issue that he was the "longtime friend" of part of the presidential team did not cause Scalia to recuse in 2000 in Bush v Gore.  Antonin Scalia reportedly angrily defended his right to go on a hunting trip with a litigant in front of him (and a longtime friend, which should have caused his recusal to begin with).  His justification?  Other justices actually were at Cheney's home at Christmas time...

In 2005, Justice Scalia lost his bid for the position of the Chief Judge of the U.S. Supreme Court because of "ethical problems" involving not in small part the duck-hunting trip with Cheney.

The article interlinked above is from January of 2005.  In September of 2005 John Roberts was appointed as a judge and selected as a Chief Justice of the U.S. Supreme Court.

Scalia did not stop his "ethical problems" at that.  Since there was at that point nothing to lose, and nothing to gain by "being good", he persisted in them.

In 2006, Scalia did not recuse from the case where his son Eugene Scalia's law firm argued a case in front of him, Wal-Mart v. Maryland.

Antonin Scalia did not disqualify himself despite calls from civil rights organizations to do so, moreover, he cast a decisive vote for his son's client.

As succintly summarized by an anonymous commentator on the web, "these f**kers don't even bother to pretend anymore, do they"?

Public hearings are announced by the Commission on Statewide Attorney Discipline - coincidentally, during vacation months

I was alerted today of the announcement that the new New York Commission on Statewide Attorney Discipline is going to hold public (allegedly) hearings on dates provided below:

My source, an extremely reliable source, indicated to me that the person tried to contact the New York State Court Administration and the Commission on Statewide Attorney Discipline directly to verify how public the meetings are going to be and exactly what is the procedure of being selected for testimony and as to written submission, and that the NYS Court Administration or the Commission on Statewide Attorney Discipline did not have coherent answers to these questions.

The date of announcement (June 23, 2015) and the dates of the hearings with testimony BY INVITATION ONLY (July 28, 2015, in a month), August 4, 2015 and August 11, 2015, are suspect to me because:

(1) one month is not enough to prepare testimony on topics as important as attorney misconduct, attorney discipline for protection of the public, and how efficient that protection of the public works (or, on the case of the State of New York, does not work).  Such testimony, if undertaken seriously, must rely upon documentary evidence, and such evidence often needs to be pulled from archives, either personal archives that need time to go through, or from public archives, and people need to put together time, money and effort to obtain copies of documents from such archives, where people serving the archives may be on vacations at this time of year.  My conclusion - the timing appears to be scheduled intentionally in order to have less people coming forward with testimony or written submissions, and that begs the next question - why?

(2) Scheduling the "public hearings" with only a month's advance and in the middle of vacation time, once again, appears to show the public that the "public hearings" are "for show" only, and are insignificant.  Significant events are not treated in such a casual way.

(3) Identity of the Commission members, about which I already blogged here, indicates that practically all of the members of the Commission are "insiders" of the system of provision of legal services who are dependent on that system for their financial well-being.  To expect for some cardinal changes from inside players is, at the very best, naive. 

(4) Testimony "by invitation" is what? What is the criterion of who is going to be allowed to testify?  And why people are given only 10 minutes for the testimony where they have to cram a story of a lifetime into those 10 minutes? 

(5) The length of hours assigned to the so-called public hearing is laughable.  It is:

2 hours around lunch time - from 11 a.m. to 1 p.m. in Albany - so, the maximum to be heard are 12 people (120 minutes, 10 minute testimony each), and that is not going to happen because some time will be eaten up on procedural issues at the beginning, during and at the conclusion of the "public hearings";

4 hours around lunch time in Buffalo, NY - from 11 a.m. to 3 p.m.;

2 hours around lunch time in New York City, NY - from 11 a.m. to 1 p.m.

It appears that the whole idea of "public hearings" is to appease the public that something was done, but it is clear that nothing serious can be accomplished with such a "public hearing" where less than 50 people can picked by the Commission itself can testify not more than 10 minutes each - which, realistically, may be completely inadequate time to carry through their story and their message for any meaningful changes to be made based on that testimony.

(6) People on the Committee, such as, for example, Chief attorney for the 3rd Department disciplinary committee Monica Duffy and Samantha Holbrook, are at the root of the problem -

• it is Monica Duffy and Samantha Holbrook who participate in tossing complaints against politically connected attorneys,
• it is Samantha Holbrook (law partner of appellate Judge Elizabeth Garry before she came to the bench) who engage in conflicted prosecutions of attorneys in cases where Ms. Holbrook is suing such attorneys and has a vested interest in having them disbarred; and
• it is Monica Duffy and Samantha Holbrook who block access of attorneys subject to discipline, including suspended and disbarred attorneys, to their own files - and apparently, documents in at least one federal case and exchange of this author with Monica Duffy's committee and the Committee's attorney in federal litigation the New York State Attorney General, show that the disciplinary committee simply does not keep records of attorney discipline and thus escape investigation of the so-called "efficiency" of their own work.

When I saw Monica Duffy as a member of the "subcommittees" on "uniformity", and on "efficiency and fairness", I nearly died laughing.

It is to appeal to the ultimate fox that the henhouse is not guarded properly.

By the way, an appeal is at this time pending of the decision of federal Judge Lawrence Kahn to dismiss a federal civil rights lawsuit against Monica Duffy for blocking access to disciplinary file and against Monica Duffy's employee for unlawful investigation of a former attorney for fake reasons.  The dismissal was on grounds having nothing to do with the merits of the case. 

Moreover, Monica Duffy and Samantha Holbrook dismissed several complaints against themselves and attorneys working for their disciplinary Committee or members of the Committee - imagine if you would be able to investigate and decide not to prosecute your beloved self.

So, these members of the Commission possess overwhelming integrity.  I can hold my breath to read what they will produce as a report on the "public" hearings.

Christopher Lindquist, another member of the Committee, participated in attorney misconduct in, being a court attorney, giving legal advice to the disciplinary prosecutors and - guess what - blocking public access to court records and blocking an attorney (me) from receiving a - guess what - public hearing that I was entitled to by law.

Lindquist is yet another shinig star on the Commission from whom public can expect great accomplishments as a result of these public hearings.

(7) Consumers of legal services who are supposed to be protected by attorney discipline, are not represented on the Commission, instead those who perpetrate misconduct are the "reviewers".

My position as to "what needs to be done" with attorney disciplinary system in New York is clear - to declare it unconstitutional, to prohibit the government to control the livelihood of advocates of the public who challenge misconduct of government officials, in other words - to cancel the attorney licensing system, and to have attorneys disciplined as other professionals are disciplined - through lawsuits.

There are enough causes of action to do that - for malpractice, for breach of contract, for breach of fiduciary duty, for breach of privacy etc.

The whole reason why this so-called Commission was created was because Lippman was afraid for his guts when his friend Silver was indicted on federal charges and wanted to do something to deflect attention from his "badness" into his newly found alleged "goodness".

Well, I for one will never believe in the "goodness" of what Lippman creates, and especially when it considers the already crumbling legal profession.

Public hearings.  Reviewed by the main perpetrators of the problem that the public cannot afford legal representation and why rampant attorney misconduct of politically connected attorneys (especially those connected to the judiciary) remains uncontrolled - for decades.

It is clear that these hearings will not and do not intend to resolve the main problem - regulation of the legal profession by the judiciary which judiciary uses that regulation to undermine the American democracy, as the tool of control and of oppression and retaliation against attorneys who challenge judicial misconduct, misconduct of politically connected attorneys and of attorneys working for the government and who are the real protectors of the public.

To think that perpetrators of misconduct (such as Duffy, Holbrook and Lindquist) will investigate, prosecute and provide an EFFICIENT and FAIR solution to the problem they created...

Not in real life.

One last thing I wanted to say.

With all said above, I encourage the public to appear and tell their stories, and to demand that attorney discipline is fair.  Why? Because fairness of attorney discipline directly relates to availability of legal defense, especially to unpopular clients, such as criminal defendants and civil rights plaintiffs.

If you remain silent, if you, the public, the People, the sovereign, do not demand accountability as to how attorney discipline is imposed, mainly upon civil rights attorneys, criminal defense attorneys and those attorneys who dare to challenge judicial misconduct for the sake of you, the people - do not ask why attorneys are unwilling to make motions to recuse when you need it, and why they refuse to take on cases involving "sensitive issues" against the government or "well connected" opponents and attorneys.

Because your attorneys are unprotected from judicial retaliation, because they can lose their livelihood by protecting you and because you, the sovereign did nothing to stop that from happening.

Attending such supposedly public hearings will also be valuable in showing to the attending public why attorney discipline by attorneys and judges will never produce a fair result - not for disciplined attorneys, not for the public whose interests the disciplinary proceedings are supposed to address. Too many self-serving interests are involved for proceedings where the public is not allowed a meaningful participation, to be fair.