The Mokay saga - should Mr. Neroni be legitimately upset that he was disbarred without a hearing because of this farce?

Since my husband has been badmouthed in many court decisions as a "disbarred and disgruntled former attorney", I believe it is time for me to start publishing what were the real reasons for his disbarment, and the real reasons have nothing to do with the law, but has everything to do with these irrelevant factors:


(1) it is my opinion that my husband was targeted because he is the so-called "deep pocket defendant";


(2) and it is my opinion that my husband was sought out to by politically connected attorneys for purposes of unjust enrichment.


I must stress that the case based on which Mr. Neroni lost his license without a hearing, is not finally resolved until now, the issue of damages is still outstanding, and, if decided in Mr. Neroni's favor by the jury, the case will have to be dismissed, yet, Mr. Neroni was disbarred without a hearing by application of collateral estoppel to a non-final decision on liability in a still ongoing case.




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Mr. Neroni has lost his license, after 37 years of practice and without a hearing, because of a partial summary judgment in the case Mokay v. Mokay, Neroni, Delaware County Index No. 2007-695 brought, initially, by 5 adult children of Mr. Neroni's deceased client, then the Estate of the deceased client was also joined as a plaintiff.  All plaintiffs were represented by the law firm Harlem & Harlem which at some point was transformed into Harlem & Jervis.  Harlem & Harlem belonged to the retired Supreme Court Justice Robert Harlem (who was also the former Chief Administrative Judge of the 6th Judicial District) and his son attorney Richard Harlem.


The allegations in the complaint were in the nature that Mr. Neroni interfered with the deceased children's prospective right of inheritance as per the judgment of divorce between the deceased and his former wife where the deceased pledged to make a will bequeathing two pieces of real estate to the children.


Instead, the deceased married, had Mr. Neroni draft deeds for those two properties from himself into himself and his new wife, and made a general revocable will bequeathing his entire estate to his children.


Before the Mokay litigation started, the 5 children submitted both the contract to make a will from the divorce action and the "improper" revocable will to the Delaware County Surrogate, Judge Carl F. Becker, and Judge Becker has authenticated the "improper" revocable will out of the two testamentary documents offered to him.


After authenticating the "improper will" in the Surrogate's Court proceeding where the Estate was represented by Richard Harlem, his father and their law firm,  Richard Harlem accepted representation of the children and sued Mr. Neroni for fraud and fraud upon the court, but the allegations of the complaint were clearly accusing Mr. Neroni of interference with the children's prospective right of inheritance.


There is no cause of action in New York for interference with prospective right of inheritance, and no matter how that non-existent cause of action is re-hashed under and worded under existing causes of action, the nature of the complaint is still interference with prospective right of inheritance, and the claim is non-justiciable in New York.

That did not deter Richard Harlem or Robert Harlem.


It did not deter Richard Harlem or Robert Harlem that the deeds were never delivered to the decedent's new wife, there is no proof of that in the record, and the Appellate Division did not make a determination that the deeds were delivered, in fact, the Appellate Division has skipped this focal issue of litigation entirely and did not enumerate the delivery of the deeds in the list of Mr. Neroni's alleged wrongdoings. 

Any 1st year law student who wants to become a 2nd year law student knows that without delivery of the deed, title does not pass, even if the deed is recorded.


Without such proof, the judge who decided the summary judgment, Judge Molly Fitzgerald of Binghamton, New York, usurped the function of the jury and exceeded her authority to make a finding of a material fact on a motion for a summary judgment where no proof of such fact was provided.


The Appellate Division said nothing about the deed being recorded by Mr. Neroni.  Thus, no title passed and there was nothing to sue Mr. Neroni for, especially that the nature of the lawsuit was based on the non-existing cause of action, tortuous interference with prospective rights of inheritance, which was rejected in New York both before and after Mr. Neroni's disbarment - in 1996 when the referenced case was decided and in 2012 when the case that cited it was decided.


Yet, the litigation continues for 7 (seven) years, is still ongoing and has already cost Mr. Neroni his law license.


It gets merrier.


When disbarring Mr. Neroni, the Appellate Division indicated that Mr. Neroni acted in collusion or conspiracy with his deceased client in order to deprive the deceased client's children of their right to prospective inheritance, in violation of a court order in the judgment of divorce.


1/ there is no cause of action to sue for interference with a right to prospective inheritance in New York;
2/ the applicable domestic relations law statute, DRL 236(b)(3), requires that all opting out agreement be entered into in writing and during the marriage, thus, oral statements on record do not qualify under the statute;
3/ the children authenticated the "incorrect" will in the Surrogate's Court before going to the Supreme Court to enforce the contract to make the "correct" will;
4/ the deeds in question were never delivered and thus the title did not pass to the widow and there was nothing to discuss, the Estate attorneys Richard and Robert Harlem could simply ask the Surrogate to declare the rights regarding the title for the two properties because there is no proof that the deeds were delivered, and that would have been the end of it.


But, such an outcome would have been too quick, too easy, and would not have allowed Richard and Robert Harlem to claim legal fees as damages under Judiciary Law 487 in the Supreme Court.


So, Robert Harlem claimed in a writing to the court that the firm put together wall of its existing "horsepower" and filed a lawsuit on behalf of the 5 children of the deceased.


The case was initially assigned to Judge Michael V. Coccoma who recused.


The case was then assigned to Judge Elizabeth Garry, who made no effort to verify whether the deeds were or were not delivered, but the widow at that time agreed to put the deeds into the Estate.


Richard Harlem argued on record that the Estate of the deceased has nothing to do with the lawsuit, that the lawsuit was brought only by the five children of the deceased who were enforcing their deceased father's contract to make a will as third party beneficiaries under the contract.


Richard Harlem then filed an appeal of Judge Garry's decision complaining of placing the two properties into his own client the Estate which was not at that time part of the Supreme Court litigation.  That was a direct conflict of interest requiring immediate disqualification of Richard Harlem and his law firm, with sanctions, from both Supreme and Surrogate's court litigation, with disgorgement and forfeiture of legal fees in both litigations but courts refused to see the conflict.  That was in December of 2007.


In January of 2007, while the appeal of the children complaining of placing the title into the two contested properties with the Estate was still pending, Richard Harlem and his father made a motion to join the Estate as a party plaintiff, and the new judge on the case, Judge Molly Fitzgerald who was assigned after Judge Garry was appointed to the Appellate Division, granted the motion over objection of Mr. Neroni.


The theory of plaintiff children's did not change.  It was enforcement of a contract to make a will.   Enforcement against whom?  Must be against their father who breached the will.  The father was not brought in as a defendant though because of an obviously sticky issue that the father's estate was represented by plaintiff's own counsel.  Yet, the complaint alleged, not in that language, but in that meaning, that the deceased father of the children breached the contract to make a will and that Mr. Neroni helped him do it and, thus, the deceased was a party defendant in the Supreme Court litigation.




The Appellate division confirmed this understanding by claiming that Mr. Neroni acted in collusion with the decedent to violate the children's rights.


If the decedent was a de facto party defendant through his collusion with Mr. Neroni to violate decedent's children's rights (for a prospective inheritance, obviously), which rights they are trying to vindicate through an enforcement lawsuit, then 


(1) the decedent's Estate could not be joined as a party plaintiff;
(2) the children and the Estate of the decedent could not be represented by the same attorneys;
(3) the attorneys in a representation of 5 party plaintiffs and one party defendant in the same action had an irreconcilable conflict and were not entitled to any attorney fees, as straight fees or as damages in the action.


There are also sticky issues that:


(1) one of Richard Harlem's clients in the Mokay case, the decedent's son David Mokay, sued the Estate in the Delaware County Surrogate's Court for alleged wrongdoings of his father and breach of promise regarding the third piece of real estate that landed in the hands of David Mokay's sister and co-plaintiff in the Mokay action, put a lien on the Estate, and Richard Harlem opposes the lawsuit on behalf of the Estate;
(2) the Estate evicted David Mokay from one of the properties contested in the Mokay litigation;
(3) David Mokay was convicted in Meredith Town court for assault upon his sister's husband during a dispute regarding the pre-sale clearing of one of disputed properties.


How can Richard Harlem continue to represent David Mokay, the Estate and David Mokay's sisters involved in related property disputes and criminal proceedings?  Does Richard Harlem believe that the rule of law is not applicable to him, instead the rule of connections is?


In other words, the Mokay case is litigated for 7 years based on a non-existent cause of action, with no proof that the deeds were ever delivered and thus that Mr. Neroni did anything wrong, where the children authenticated the "wrong"  testamentary document before they moved to another court to enforce the "right" one, and while the only damages claimed in the action are legal fees of politically connected attorneys who represent parties on both sides of the caption and are not entitled, if the law is applied as it should be, to one penny in legal fees.


And this is the case which has cost Mr. Neroni his license, without a hearing, after 37 years of practice and with the jury trial on damages still outstanding and delayed so far twice by the plaintiffs because a month before the scheduled trial date their trial counsel invariably gets sick and the trial is adjourned over Mr. Neroni's objection.


Why is Richard Harlem not disbarred for his shenanigans in the Mokay case when any non-politically connected attorney would be?


The reason, in my belief, is the same as why Richard Harlem and his father were not disbarred after their shenanigans in the Blanding case in 2000 and in 2011 when  Mr. Neroni and I turned him and his father into the Committee for Professional standards for their misconduct in both Mokay and Blanding cases.


The answer, in my belief, is - Connections.


Richard Harlem is the landlord of New York Senator James Seward.


Richard Harlem is the son of a retired Supreme Court justice.


Richard Harlem is represented by the law firm Hiscock & Barclays, LLP, where John Casey , the member of the Professional Conduct Committee at the time of our complaints about Richard Harlem and Robert Harlem, was and still is a law partner.


Hiscock & Barlcays, LLP, embraced another subject of John Casey potential prosecution, M. Cornelia Cahill, wife of New York State Court of Claims judge Richard Sise, at around the time when she was turned into the professional conduct committee for her role in the school pensions scandal, so the law firm builds its client base and partnership base on attorneys rescued instaed of prosecution by John Casey. 


Hiscock & Barclays, LLP  employs another New York State senator, Neil Breslin.


The Harlems were untouchable because of their pedigree, political status and political connections.  Richard Harlem remains untouchable by attorney discipline to this day.


The brief summary of this farce is:

• there is no legitimate cause of action underlying the plaintiffs' Mokay case;
• since the deeds were never delivered and the title did not pass, the contract to make a will was not broken, so there was nothing to sue Mr. Neroni for;
• the contract to make a will was forfeited by the children by authenticating the "improper will" before the Mokay case was brought;
• the politically connected attorneys who represent in the Mokay case the children and the Estate which, according to the children's Complaint is a confirmed de facto defendant, are not entitled to one penny in legal fees while the entire case is based on the claim of legal fees as damages

Multiple judges in multiple courts reviewed these same issues.


The applicable law is clear and it is clearly on Mr. Neroni's side. 


Yet, Mr. Neroni remains disbarred and bad-mouthed by various courts as a "disgruntled disbarred former attorney", stripped of his right to earn a livelihood, share his wisdom and help many people, whether for a fee or for free, as he did for years, Richard Harlem remains an attorney and the Mokay case proceeds.


So much for the rule of law.

A time vector was invented to define timeless declaratory judgments... Anything to block civil rights litigation against high-ranking public officials on sensitive issues...

The Black's Law Dictionary (iPad version, 9th Edition, 2011, p. 918) defines a "declaratory judgment" as a "binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement".  It is also termed a "declaratory decree" or simply a "declaration".

Since it is simply a declaration of rights for all times and purposes, it does not have a time direction.  In other words, a declaratory judgment cannot be, by its very nature, prospective or retrospective.

Enter Judge Gary L. Sharpe, the Chief Judge of the U.S. District Court, Northern District of New York.

In his recent decision against my husband Judge Sharpe denied my husband's constitutional claims (1) because they were barred by the 11th Amendment (they were not, my husband was suing his own state);  and (2) because Judge Sharpe deemed the declaratory relief that my husband was seeking as "retrospective" instead of "prospective".

In plain English, Judge Sharpe ruled that my husband is not entitled to even a declaration whether his constitutional rights were or were not violated because he asked the courts for a declaration of his rights, and the court considered his request as a request for "non-prospective",  or "retrospective" declaratory relief.

It logically follows that, even though in Marbury v. Madison, the very case by which the U.S. Supreme Court gave itself authority to interpret the U.S. Constitution, the U.S. Supreme Court declared that any law that is contrary to the U.S. Constitution is void, and being "void" is another timeless concept, the federal courts still construe it within the time limits.

So - it may just as well be unconstitutional, but since you are asking for a "retrospective" declaratory judgment, you are not entitled to a mere declaration of whether your constitutional rights were violated, even if all you are asking is declaration of your rights without enforcement!

For Judge Sharpe and for the judges whose decisions he cited on the issue, declaratory relief has a time vector, even though by its very nature declaratory relief is made for all purposes and all times.

Anything to slam the court's door into a disliked litigant's face...

Can the Chief Judge of the U.S. District Court, Northern District of New York Gary L. Sharpe read the U.S. Constitution that he took an oath to uphold?

Here are two quotes.

One is from Judge Sharpe's recent decision regarding my husband, which came 3 weeks after I sued Judge Sharpe in his individual capacity.

The other is from the text of the 11th Amendment of the U.S. Constitution.  The text of the 11th Amendment clearly prohibits only lawsuits against sovereign states by citizens of "another state", not by citizens of the same state as the state which is sued as a defendant.  

So - my husband read the clear and unambiguous text of the 11th Amendment correctly when he argued that 11th Amendment does not prohibit lawsuits by citizens of a state against their own state.

Now the 5 million dollar questions:  does Judge Sharpe know how to read and did he actually read the U.S. Constitution that he took an oath to uphold?

It is in your best interests not to be able to sue that malicious and/or corrupt person who violated your constitutional rights - if that person is a judge

When I began this blog in March of 2014, I have announced that I am preparing some books for publication that I plan to come out in 2014-2015.  One of the books will be on the doctrine of judicial immunity, its legality and its impact on the American society, the economic principles of existence of a publicly funded court system, its efficiency and alternatives, and the necessity to undo the stronghold malicious and corrupt judiciary has on this country.

As a sneak preview, I provide some points from the book.  The book, of course, will contain citations to legal authorities, a bibliography and a detailed analysis of federal civil rights litigation, my own and other people's, showing how justice is stonewalled whenever judicial misconduct of any kind is involved, no matter how egregious constitutional violations were and how badly the victims were hurt.

The book will cover specific examples of how courts disregard the rules they create and the rules set by statutes and the U.S. Constitution in order to protect themselves from liability for malicious and corrupt acts on the bench.

I will argue in the book that there cannot be any legal, moral or constitutional basis for the doctrine of absolute judicial immunity for malicious and corrupt acts.

I will argue in the book that, maybe, the whole idea of dispute resolutions through courts has outlived itself due to the fact that it is a grossly inefficient use of public funds, especially in view of the fact that the majority of issues in state and federal courts are not resolved through trials, on the merits and thus the courts are no better than glorified mediators/arbitrators steering parties into settlements without resolution of issues for purposes of creating precedents in the law.

The book will be in English and in Russian and will be marketed globally, to raise global awareness around the world as to problems in the U.S. with undermining the fundamental democratic principle that any violation of human rights must have an effective remedy.

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In 2009 the U.S. District Court for the Middle District of Pennsylvania, Judge A. Richard Caputo, has ruled in a partial decision on liability that, even though Judge Mark Ciavarella, Jr.  was immune for sentencing juveniles to detention, without advising them of their right to counsel or giving them counsel, failed to determine whether pleas of guilty were knowing or voluntary, and did that because he was paid to fill a private juvenile detention center, he was still absolutely immune from suit because what he did constituted "judicial acts".

To give judge Caputo justice which he denied to the victims of Judge Ciavarella, Jr., I must state that in January of 2014 Judge Caputo has ruled that Judge Ciavarella was not immune as to acts in furtherance of the same conspiracy which were not judicial acts.  Yet, in his 2009 decision Judge Caputo, in violation of his own south of office to uphold the U.S. Constitution as the Supreme law of the land, Judge Caputo perpetuated the dangerous tendency of courts to grant judicial immunity for malicious and corrupt acts of judges, based on extremely fuzzy and self-serving legal foundation.

I put the quote from Judge Caputo's 2009 decision granting judicial immunity to Judge Ciavarella, Jr. at the top of this blog, as it defines the disfunction, inefficiency and judicial misconduct permeating the judicial system of the United States, and issue that everybody knows about, but which has not been effectively dealt with because of the lobbying efforts of the judiciary and the power of the judiciary to create self-serving case law.

The entire house of judicial immunity is a sand castle waiting for one authoritative blow or pour to dissolve.  That blow or pour will not happen without public input.   I appeal to the public to apply to their legislative representatives to make the chimera of absolute judicial immunity for malicious and corrupt acts disappear. 

Absolute judicial immunity in the U.S. is based only and entirely on an assumption by the U.S. Supreme court that pre-existing common law principles of immunity (that came from England) are not abrogated by Congress if a statute is silent about those common law principles.

There are several flaws in such an assumption.

Supremacy of constitutional law and rules of statutory construction

U.S. Constitution is the Supreme law of the land and thus trumps inconsistent common law.

When a statute is silent on a certain issue, that issue must be construed according to the general goal of the statute.

The obvious goal of 42 U.S.C. 1983 resulting from its text is to create a private cause of action to give individuals a right to personally hold every person who violates their individual constitutional rights under the color of state law liable for money damages,  and that includes judges.

Statutes enforcing federal and constitutional law must be construed liberally and broadly, to further its legislative intent and purpose.

Any exceptions to such statutes must (1) be clearly defined by the legislature and (2) must be narrowly construed not to undermine the legislative purpose and intent.

That the U.S. Supreme Court suddenly scrapped its own rules of statutory construction to help out its own class, the judiciary, and the fact that judges throughout the country "faithfully" adhere to the principle unfaithfully created by the U.S. Supreme Court is one more example of self-serving intellectual dishonesty of the judiciary and its disdain to the rule of law when it concerns their personal interests.

Deviation from common law

English common law unquestioningly accepted by the U.S. Supreme Court as the basis of its assumption that it still applies to civil rights actions, even though the U.S. Congress did not say so and such language did not appear in the civil rights statute, 42 U.S.C. 1983, did not cover judicial immunity for malicious and corrupt acts, so granting it in reliance on pre-existing common law as an exception is wrong.

Common law gave immunity from suit only to judges of superior courts and courts of general jurisdiction.  In the U.S. the doctrine spread as a forest fire to cover judges of all courts and even of amdinistrative agencies, as well as non-judges that were deemed as "the arm of the court", something that did not exist under the common law which is the whole justification of the doctrine

Common law also had a doctrine of amercement/ liability of judges to those the judges injured, so if common law on the issue of judicial liability should be consulted, both the immunity and the amercement doctrines should be embraced. 

It is my firm belief that ignoring the amercement doctrine while expanding the immunity doctrine beyond the initial scope of its existence under English common law, but in reliance on English common law, is self-serving intellectual dishonesty of the judiciary for purposes of self-preservation and not for public interest.

Self-interest of the decision-makers

When judges decide that they are not immune because of common law principles that are not reflected in the statute, and rule that their identity and their motivation, even a malicious and corrupt motivation, does not even come within the judicial inquiry to decide their own fate and the fate of their class, the mere self-interest of such a decision casts suspicion of its validity.

The identity of the sovereign and inapplicability of 400 year old common law in a democratic society

In England the King was the sovereign, and superior court judges answered to the King.  There was no supremacy of the law over and above the King's will, and that's exactly why pilgrims ran to American and why this country declared independence from England, because of its lawless tyranny. 

Now that lawless tyranny is being revisited upon the American people through the doctrine of absolute judicial immunity for malicious and corrupt acts.

In the U.S. the People are the sovereign, the People established this county in accordance with the U.S. Constitution as the Supreme law of the land, and made all judges swear an oath of office to that U.S. Constitution, and not to a person or a governmental body.

There government is not the sovereign in the United States, the people are.

Courts, in applying the doctrine of judicial immunity, act as if the U.S. Supreme Court is the sovereign of the United States, and that the U.S. Supreme Court decisions prevail over the reasonable interpretation of the text of the U.S. Constitution.  Yet, the U.S. Supreme Court decisions are not part of the Supremacy Clause of the U.S. Constitution and may not constitute the law of the land.

Overbroad construction of jurisdiction for purposes of absolute judicial immunity

In New York, Judiciary Law 14 absolutely disqualifies a judge who has an interest in the outcome of litigation, and decisions by such a judge are void.

The law also disqualifies a judge from re-entering the case from which he recused, and decisions from such a "re-entered" judge are also void.

There are mandatory rules of disqualification existing in New York, and the public will believe that they are mandatory only if they are enforced as mandatory.

Yet, New York courts ruled, and federal courts agree, that the decision on recusal addressing a motion under a mandatory rule of disqualification, is somehow "discretionary", and can be made by the same judge whose misconduct, bias, appearance of impropriety or conflict of interest, are addressed in a motion to recuse, after the judge "searches his/her own conscience".

It is apparent that such an analysis is flawed from the very beginning because:


(1) it is not from the point of view of an objective reasonable observer, and


(2) because it is not transparent or subject to appellate review since it is not possible to clearly establish as a matter of law


          (a) what is conscience,


          (b) whether the particular judge has conscience, 


          (c) whether the particular judge did or did not search his or her conscience, 


          (d) what did the judge's conscience tell the judge, 


          (e) whether the judge truly followed his or her conscience in making the decision (if such a conscience even exists).

Under federal due process of law, a judge cannot preside over "his own case", or where he has a personal interest in the outcome of the case.

A personal interest exists when a judge has a personal vendetta against a litigant or his attorney.

A personal interest exists when a judge was bribed out of court to rule in a certain way in court, whether the bribe was by actual money, by promises of promotions, re-elections or after-retirement perks, or by offering to judges or his family members certain privileges that would not be available to them unless the judge rules in a certain way.

Whenever the rules of disqualification are mandatory, respectfully, they must strip the judge of authority to act, and if the judge acts contrary to those rules, he must suffer the consequences of his actions, as "any person" within the meaning of 42 U.S. C. 1983.

Federal courts should not be able to find jurisdiction in a judge who, by mandatory rules of disqualification, is not allowed to serve in a certain case.  

Yet, federal courts nevertheless find jurisdiction in the same circumstances because they do not reach the issue of absolute disqualification, are not concerned by the identity of the judge and by his corrupt or vindictive motivation, and are concerned only with two issues: (1) whether the court itself, as an entity, has subject matter jurisdiction and (2) whether the act complained of was, by its nature, a judicial act.

Such a broad construction of a what was supposed to be a narrow exception to application of an act of Congress enforcing the right to a private cause of action against violations of the U.S. Constitution by "any person acting under the color of state law", and especially an exception based on an assumption by the U.S. Supreme Court that the Congress couldn't have meant to abolish common law judicial immunity, even though amendment of a statute by interpretation is outside of the U.S. Supreme Court's authority, cannot be considered the current law of the land.

Since such construction proved to be extremely viable, efforts should be made to legislatively or through state Constitutions, abolish it.

Granting judicial immunity in the hopes that judges are prosecutable for misconduct in by disciplinary authorities and criminal courts could be deemed naïve if it did not come from judges who are personally interested in that doctrine they created to apply to themselves. 

Such disciplinary and criminal prosecutions happen once in a blue moon and the public has no power to appeal non-prosecutions, therefore, disciplinary and criminal proceedings cannot be construed as real and effective remedies against judicial misconduct, and especially against malicious and corrupt acts on the bench. 

The disciplinary process in the Ciavarella (Kids-for-Cash) case in Pennsylvania failed, and due to the fact that several attorneys were disbarred for complaining about judges, attorneys who knew about misconduct of the judge who was openly violating juveniles' rights in the courtroom as a matter of pattern and policy, were afraid to report such misconduct. 

Criminal charges were not brought even by the feds against these judges for selling kids for cash.  Charges were brought only to address the kickbacks, so to a certain degree, that process also failed the public.

The justification of judicial immunity of the necessity that the public should be perpetually duped into trust in the integrity of the judiciary to prevent public unrest to correct the situation is self-serving, unconstitutional and simply morally wrong

The above shows that the claim that the doctrine of absolute judicial immunity somehow protects independence of the judiciary and helps maintain public trust in the integrity of the judiciary is wrong on many levels.  A judge sworn to uphold the U.S. Constitution may not be independent of his oath.   There should be an effective mechanism for the victims of his breach of his oath of office to obtain a real remedy against the judge, especially if the mistake was malicious and corrupt.

Maintaining public faith in the integrity of the judiciary by granting judges immunity for malicious and corrupt acts is maintaining in the public unwarranted illusions in order to prevent legitimate public unrest and outrage in order to change the status quo and establish a truly constitutional system of dispute resolution, whether by courts or by a more advanced method.

It is nonsense to expect the public to presume integrity of any judge when any such judge is immune from civil liability for malicious and corrupt acts on the bench, because, given the culture of non-enforcement of disciplinary rules and criminal law against judges throughout the country, the public can expect any judge to commit exactly the type of misconduct from which he or she is made immune.    In other words, if criminal behavior is not punished, it will get worse, one should not be a wizard to understand that.

The factual non-existence of disciplinary and criminal prosecutions of judges whatever they do on the bench, and the vicious retaliation of the judiciary against whistleblowers of such misconduct show that availability of a private cause of action for money damages against judges is the only real remedy and real deterrent to malicious and corrupt acts of judges on the bench.

The issues of liability for judges whose mistakes are honest can be resolved in federal civil rights lawsuits not through immunity, but through motion practice after full discovery and addressed through liability insurance, as for any other professional providing professional services to the public.

English common law cannot and should not be uncritically transplanted to the U.S. soil, and the doctrine of absolute judicial immunity for malicious and corrupt acts is unconstitutional and should be legislatively abolished since it will not abolish itself in courts due to the self-interest of the judiciary to perpetuate and expand it

This country has been founded on a Declaration of Independence specifically because of lawlessness of English courts and the tyranny of immune English judges who answered only to the King as sovereign, all judges in the U.S. take their office by the oath of loyalty to the U.S. Constitution and not to a body of government.  Instead, all courts uniformly hold themselves loyal to a body of government, the U.S. Supreme court, and its decisions, whether they contradict the letter and/or spirit of the U.S. Constitution or not.

The U.S. Supreme Court derives its authority from the U.S. Constitution, and there is nothing in the U.S. Constitution allowing the U.S. supreme Court to change the Constitution or federal law, or to narrow jurisdiction of federal courts despite clear language of an act of Congress presupposing the broadest possible jurisdiction to prosecute constitutional violations and enforce the U.S. Constitution.  This usurpation of the power of Congress to narrow jurisdiction of federal courts is especially egregious when it is used by judiciary to protect its own class from liability.  




 

My trick question was answered by a federal court - if you are married to a judge, or are a retired judge, be assured that you'll get free legal representation at taxpayers' expense, even for your acts as a private attorney, be assured that the judiciary will save you and the law will be bent to help you

On May 16, 2014 I filed a federal lawsuit against several judges, including federal judge Gary L. Sharpe, inquiring (1) about the apparent ex parte investigation against me in his court at the time when I had pending cases in that court as an attorney, and cases on appeal from that court as a party;  (2) about potential participation of Judge Sharpe and other judges of that court in the secret-membership organization The American Inns of Court where judges appear to receive freebies from powerful attorneys behind closed doors and engage in communication with attorneys behind closed doors which fact, if established, will raise all kinds of disqualifying grounds. 


On May 21, 2014 I posted a blog about "trick questions" regarding free legal representation of politically connected private attorneys at taxpayers expense. 


On June 5, 2014 my husband received an answer to that question from Judge Gary L. Sharpe, and the decision floored me with its intellectual dishonesty, so I believed it is worth it to make that decision public and describe some points of that decision, mainly that Judge Sharpe has created a new assigned counsel class for rich, powerful and politically connected private parties.




Intellectual dishonesty of judges is a major problem in this country, has been for years and is not adequately addressed because of the power of the judges engaged in misconduct to deprive the most likely reporters of misconduct, attorneys, of their livelihood and reputation.  Non-reporting of judicial misconduct may and do have devastating consequences to the public, but reporters are stifled and persecuted, and thus, the overwhelming majority of attorneys prefer to err on the safe side and not report judicial misconduct.


Addressing this problem is a scary matter, since the very livelihood of any attorney lays in the hands of the very people (judges) whom the attorney is supposed to criticize - with predictable results.   


Yet, I feel it to be my duty as an attorney and as a citizen to continue exposing judicial misconduct that I am aware of, and I will continue to do that whether I keep my law license or not.


As I said above, on June 5, 2014 a new decision emerged concerning my husband where intellectual dishonesty of a judge is clearly at play.


I will later, time permitting, include here the full text of the decision, for people to judge as to its worth, now I will simply make some comments on it.  As a disclaimer, I did not represent my husband in these proceedings, he represented himself.


As a premise, let's remember that Judge Gary L. Sharpe who decided the case is a federal judge nominated by the President, confirmed by the U.S. Senate and sworn to protect the U.S. Constitution and federal law - for your sake, my co-citizens and co-taxpayers.


As another premise, let's remember that under the U.S. Constitution that Judge Gary L. Sharpe was sworn to protect the judge has no power to change federal (or state) statutes or the federal Constitution by interpretation - only to apply what is clearly there or reject the law as vague if it is not clear for judicial application.


As a third premise, let's remember that the law firm representing in the action Defendant judge Michael V. Coccoma, the retired judge Eugene E. Peckham and judge Coccoma's wife Ellen Coccoma, employed Judge Gary L. Sharpe's son.


As a fourth premise, let's remember that on May 16, 2014 a lawsuit was filed against Gary L. Sharpe in his individual capacity by me alleging, based on documentary evidence that the court where Gary L. Sharpe is the Chief Judge has engaged in an ex parte investigation of my personal, professional and political background.  Since the plaintiff in Neroni v. Coccoma, Frederick J. Neroni is my husband, investigation of my personal background necessarily involved the Plaintiff.


As a fifth premise, let's remember that Judge Sharpe has sanctioned both Mr. Neroni and myself in another case where only Mr. Neroni was a party and I represented him, after I specifically asked Judge Sharpe to step down because the New York State Attorney General's office appearing on behalf of defendants in that case, employed the judge's son Michael Sharpe.


As a sixth premise, let's remember that in the present case, Neroni v. Coccoma, Mr. Neroni made a motion to disqualify Judge Gary L. Sharpe not simply because he sanctioned Mr. Neroni in the past, but because he sanctioned him in an apparent retaliation, after Mr. Neroni pointed out to the judge that he is ruling in favor of his son's employer, without a disclosure to Mr. Neroni or his counsel that our opposing counsel is the judge's son's employer. 


Now as to the decision.


I will not provide here a full analysis of its flaws.  That is for Mr. Neroni to do if he decides to appeal the decision.


I will just touch upon some points of intellectual dishonesty of Judge Sharpe and his protection of Judge Coccoma, his wife Ellen Coccoma caught in misconduct, the retired judge Eugene Peckham caught in misconduct, and the Supreme Court justice Kevin Dowd who, according to allegations in Mr. Neroni's complaint citing to Judge Dowd's grossly inappropriate and outlandish remarks on record in a court proceeding, may be lacking mental capacity to preside over cases and who openly catered to Ellen Coccoma in a state court proceeding protecting her, as Judge Sharpe did, from discipline.


Judge Sharpe has narrowed the scope of 42 U.S. 1983 and dismissed the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm despite their obvious violations of plaintiff's constitutional rights under the color of state law, because they were not sued as "state actors".


For that contention, Judge Sharpe cites a "precedent" from the U.S. Court of Appeals for the 2nd Circuit: 

“In order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.2002).

Here is the  full text of the statute itself, 42 U.S.C. 1983:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia".

Thus, under the text of the statute, which controls over any inconsistent case law, the distinction between a "state actor" and a "private person acting under the color of state law" is not even meaningful or relevant for determination of validity of a 1983 claim.

Judge Sharpe was sworn to uphold the U.S. Constitution, not the precedents of the 2nd Circuit, and even not the precedents of the U.S. Supreme Court.  He is sworn to make his own independent determinations in interpreting federal law and the Constitution, and apparently he has sorely failed to do that, as the decision shows.

After Judge Sharpe's quotes the case where the 42 U.S.C. 1983 is bifurcated into "state actors", something that does not appear in the statute at all, and "private persons acting under the color of state law", which does not appear in the text of the statute either, Judge Sharpe concentrates on Ellen Coccoma not being a state actor, that Mr. Neroni failed to properly allege her conspiracy with state actors and dismisses the case against her on that irrelevant point.

Judge Sharpe offers several premises in order to dismiss the case against Ellen Coccoma, her law firm, Eugene Peckham and his law firm for their actions as private attorneys and law firms:

1/ private attorneys are not "state actors" for purposes of a 1983 action.  As the text of the statute shows, that is not a relevant point, because it is about "every person" who violate other people's constitutional rights under the color of state law.  There is a Supremacy Clause in the U.S. Constitution that Judge Sharpe was sworn to uphold, and that Supremacy Clause does not contain adhering to precedent that changes a statute through interpretation.  Yet, despite the complete irrelevance of this judge-created "distinction", the court spends a hefty paragraph, strewn with citations, proving that Ellen Coccoma was not a "state actor" when she acted as a private attorney (and yet she was represented pertaining to those actions not as a state actor, by New York State Attorney General's office, employer of Judge Sharpe's son, at taxpayer's expense - and that is ok to Judge Sharpe, see discussion of that point below).

Judge Sharpe then cites to other cases which state that:

2/ private attorneys do not act under the color of state law.  That is blatantly stated despite the allegations in the complaint, which at the stage of the motion to dismiss must be assumed as true, especially that they are based on state court records, that a private attorney Ellen Coccoma asked the court to use its power to compel a non-party Mr. Neroni into a deposition under the threat of criminal contempt of court, which is a violation of his due process and 4th Amendment rights, and when Ellen Coccoma did that when she has no authority to ask the court for anything because her client has died at that time, and her authority to represent him ceased, while she concealed the fact of her client's death and of her lack of authority when she was asking the court to compel such appearance by Mr. Neroni.   

Moreover, the case cited by Judge Sharpe, Dahlberg v. Becker, 748 F. 2d 85 (2nd Cir., 1984), amends 42 U.S.C. 1983 through judicial interpretation in a meaningful way, which is unconstitutional since judges do not have powers under Article III of the U.S. Constitution to amend federal statutes.  

Yet, even with that unlawful amendment, my husband's case is winning - but not in the eyes of Judge Sharpe.

By the way, there is a sad irony about Judge Sharpe's choice of a case to cite...  In Dahlberg v. Becker the defendant is the judge Becker I write about often in this blog (just word-search "judge becker" in the search window of this blog), who was sued multiple times for his shenanigans as a judge, the latest time on May 16, 2014.

Had Judge Becker been slapped with sanctions in 1984 in Dahlberg v. Becker, he could have thought more about what he is doing now, but alas...

Decisions of Judge Sharpe in this case also perpetuate and reinforce official misconduct of multiple public officials which, I bet, will get worse, encouraged by the sense that the law either does not apply to them or can be bent to save them.

In Dahlberg v. Becker the "under the color of state law" part of 42 U.S.C. 1983 is interpreted as sanction by the state to a private party to abuse the state law. 

First, nothing like that appears in the text of 42 U.S.C. 1983, it is a major amendment of a federal lawsuit by judicial interpretation for which a federal judge has no authority under Article III of the U.S. Constitution and the Supremacy Clause that any federal judge, including appellate judges, are sworn to uphold.

When an appellate court, or even a U.S. Supreme Court, issues a decision that exceeds its Article III powers, it is not a precedent mandatory to follow for any federal judge who has sworn separately, personally, individually, to the U.S. Senate and the American People that he will uphold the U.S. Constitution and federal law (statutes) as the law of the land, and not the incorrect interpretations of the same.

Yet, even if the judicially created "rule" in Dahlberg v. Becker were to be applied to Mr. Neroni's case, the state (Judges Lambert and Dowd) did allow Ellen Coccoma to abuse the state statute by ordering Mr. Neroni into a deposition under the threat of contempt of court.  Yet, these material details were omitted from Judge Sharpe's decision, apparently to make it easier to arrive at a pre-judged result.

In Judge Sharpe's eyes, Ellen Coccoma did not act under the color of state law.  Why?  I see the reasoning of the court winding down to a simple "because", because there is no sound grounds to "find" contrary to the facts in the record.

What I call "intellectual dishonesty" of Judge Sharpe is that Judge Sharpe "omits" material facts from his analysis:

(1) the fact that Ellen Coccoma lied to the court by concealing the death of her client for 6 months and by making a motion for a deposition at the time her client was already dead, Ellen Coccoma's authority to represent him stopped, and jurisdiction of the court stopped (abated), too;

(2) the fact that Eugene Peckham and his law firm lied to the court by omission by not disclosing to the court that Eugene Peckham, the previous judge on that same case, is now representing a party in Delaware County Supreme Court, and is doing it when he is also appointed a judicial hearing officer in that same court, which Eugene Peckham knew was contrary against rules of disqualification of judges and judicial hearing officers;

(3) on another issue, Judge Sharpe refused to recuse from Mr. Neroni's case claiming that merely imposing sanctions upon Mr. Neroni in the past does not provide enough grounds for a recusal.   The Judge omitted at that point that the sanctions were imposed after Mr. Neroni pointed out that Judge Sharpe decided the case in favor of a party represented by his son's employer and that the sanctions were imposed for everything that the employer asked for, including things that had nothing to do with Mr. Neroni at all.

If one reads Judge Sharpe's decision sanitized from those relevant and materials facts, Judge Sharpe appears to be right on his refusal to recuse.

Yet, when one reads the same decision with all the facts in, Judge Sharpe's decision appears to be simply catering for the high-ranking judges represented by his son's employer.  Same as in Neroni v. Becker earlier, Judge Sharpe flies by material facts in order to decide for NYS AG's office and not to sanction any state actors or private attorneys who are related to powerful state actors for apparent misconduct.

Judge Sharpe would rather create a very bad precedent, disenfranchise the voters of the State of New York by legislating from the bench and expanding a New York State statute by interpretation to allow legal representation at taxpayers' expense of a retired judge and a judge's wife, sued as private attorneys.

Now, had Judge Sharpe ruled against Ellen Coccoma, Eugene Peckham and their law firms on this issue, the law firms would have become subject to attorney discipline.

Judge Sharpe's decision protected these attorneys from discipline and allowed Ellen Coccoma and Eugene Peckham a free ride at taxpayers' expense - and gave future generations of relatives of judges sued in similar circumstances for free rides at taxpayers' expense, too.

It is interesting to mention how Judge Sharpe wiggles around to arrive at his decisions, sometimes making diametrically opposite rulings in one and the same decision. 

On the one hand,  Judge Sharpe points out that Ellen Coccoma is sued predominantly as a private attorney.  Yet, Judge Sharpe in the same breath authorizes representation of that private attorney, at the expense of New York State taxpayers by the New York State Attorney General.   

Yet,  NYS Public Officers Law 17 governing such representation says nothing of the kind.

I've written in this blog about the fact that Ellen Coccoma was denied representation at the expense of her insurance company.  Ellen Coccoma never would have applied to her insurance to provide an attorney to represent her in the first place, had she believed she was entitled to representation by the State of New York.

Ellen Coccoma applied for such a representation only when her insurance company turned her and her husband down, based on the contents of the allegations in the complaint which are not covered under the insurance policy, and under New York State policy that intentional acts may not be insured.

Now, Judge Sharpe, in an effort to save both Ellen Coccoma and Eugene Peckham,  who was equaly sued for his misconduct while being a private counsel (Eugene Peckham's law firm, without disclosure, represented a party in a case over which Eugene Peckham presided before retirement), and to let them obtain representation at taxpayers' expense, narrowed by interpretation the federal jurisdictional statute, 42 U.S.C. 1983 and expanded the state statute Public Officers Law 17 to allow free representation of private attorneys at the expense of the State of New York taxpayers.

Ellen Coccoma, wife of the 2nd-in-command administrative judge of the state, accepted the freebie that is not authorized by the clear text of Public Officers Law 17.

Eugene Peckham, a retired Surrogate's Court Judge and retired Acting Supreme Court justice, accepted the freebie that is not authorized by the clear text of Public Officers Law 17. 

A precedent is created where, if a conflict of interest between private action and action as a public official is alleged, the private actor gets to have a free representation by the State of New York - and that is at the time when over 80% of New York litigants cannot afford an attorney and when parties who accept such freebies are either members or former members of the judiciary or family members of judges.

And courts are talking about presumed integrity of judges and about attorney's alleged obligation to maintain the trust (belief, faith) in that integrity in the public?  Only after a lobotomy.

 

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