I have described how the New York State Governor Andrew Cuomo made a nomination to the Court of Appeals by bypassing a qualified candidate Judge Victoria Graffeo and instead publicly announcing his "intent to nominate" Judge Leslie Stein of the Appellate Division Third Judicial Department at the time when Judge Leslie Stein was the presiding judge over a case litigated in front of her by the Governor's subordinate, the Commissioner of the Environmental Conservation.
As I wrote in the prior post, Judge Stein ruled in DEC's favor within 6 days of the announcement by Governor Cuomo expressing his intent to nominate her to the New York State Court of Appeals.
The reported salary of Leslie Stein for the year of 2013 was $176,000.00 (as reported by http://seethroughny.org).
The reported salary of Judge Victoria Graffeo in the New York State Court of Appeals for the same year of 2013 was $184,800.00.
According to the official biography of Judge Leslie Stein on the website of the New York State Supreme Court, Appellate Division, Third Judicial Department, she was elected to the New York State Supreme Court in 2001.
Governor Cuomo could not reappoint her to the Appellate Court unless she would be re-elected, as, by law, Governor Cuomo could only appoint a judge already elected to the New York State Supreme Court to an intermediate appellate court.
Judges of the New York State Supreme Court are elected for terms of 14 years.
Since Judge Stein was elected in 2001, her term ends at the end of the next year, unless she runs for re-election.
With the nomination, Judge Stein does not need to expend her own funds on a re-election campaign in 2015, since judges are not allowed to use public funds for their re-election.
Let's count how much of taxpayers' money was secured by Governor Cuomo to bribe Judge Leslie Stein into making a decision for the DEC in Martens v. Neroni?
Governor Cuomo promised to appoint her for 14 years, as a matter of his sole discretion. Remember, the salary of Victoria Graffeo for the year 2013 was $184,800. Judge Stein's term otherwise would have expired at the end of year 2015, at a salary of $176,000.
Even assuming that Judge Stein will not have any raises over her 14-year term on the Court of Appeals, which is unlikely, she will get $2,587,200.00 over her term minus $176,000 that she would have gotten as an Appellate Court justice in 2015 anyway, for the total of $,2,411,200, and that is not counting the benefits and the perks of her office, and the savings for not having to fund a re-election campaign in 2015 to keep her current judgeship in the Appellate Division.
$2,411,200.00 is not a bad chunck of change for just one decision, and that is the one that I know of.
The amount of money Leslie Stein was promised by the Governor at the time governor's officers appeared in front of Leslie Stein as a presiding judge, and the fact that Leslie Stein ruled in favor of Governor Cuomo's officers within 6 days of the nomination, puts a whole new light on her statement that she is "humbled" by the nomination.
My question now is - how can the New York State Attorney General criminally prosecute Governor Cuomo and Judge Stein for corruption when the New York State Attorney General is the official legal counsel for both?
Doesn't this case demonstrate clearly enough that the same public official, the New York State Attorney General, should not be given by statute obligations that create mutually exclusive duties toward the same people - both defend them when they are sued for fraud and investigate and prosecute them criminally for the same thing?
Sunday, October 26, 2014
Governor Cuomo publicly buys off Judge Leslie Stein of the Appellate Division Third Judicial Department with a Court of Appeals nomination to have her decide a case in favor of his agency, and Leslie Stein rules in his favor within 6 days - shouldn't participants in this dirty story be collectively fired and stripped of their law licenses for corruption and fraud upon New York landowners?
The press was confused as to why New York State Governor Cuomo refused to nominate Judge Victoria Graffeo, of the New York State Court of Appeals, to another term at the end of this year, when her current 14-year term expires, and instead announced his intent to nominate Judge Leslie Stein of the Appellate Division Third Judicial Department.
Here is the answer:
The intent to nominate Judge Leslie Stein to the New York State Court of Appeals was announced at the time when Judge Leslie Stein had a case pending before her where the New York State Executive Office (DEC) was in front of her.
New York State Governor is the head of the executive branch of the government of the State of New York, and when DEC was in front of judge Leslie Stein in Martens v. Neroni, Case No. 515341, it was the Executive Office, and, subsequently, Governor Cuomo, who was in front of Judge Leslie Stein in that case.
Governor Cuomo, apparently, was insecure as to how Judge Stein was going to rule, given multiple constitutional arguments raised, one of them - lack of notice to a landowner that environmental objects are located on his property - being jurisdictional.
So, Governor Cuomo did not wait how the judge would rule, instead, he sweetened the deal for the presiding judge of the court panel deciding his agency's case by announcing his nomination of that presiding judge, Leslie Stein, to the New York State Court of Appeals.
The judge took the hint perfectly - instead of stepping down from the case, as required by Judiciary Law Section 14, since she was publicly offered a material benefit by a party in an action pending in front of her, she remained on the case as the presiding judge of the appellate panel, and authored the decision favoring the DEC, thus making sure that she controlled it.
In that decision, Leslie Stein ignored the jurisdictional issue that had a potential of reversing all convictions ever obtained by the DEC against New Yorkers and vacate all fines ever imposed upon New Yorkers for violation of environmental law upon their properties, if maps used to describe protected objects on their properties are as blind as the one that allegedly described protected environmental objects on the property belonging in 2001 solely to my husband Frederick J. Neroni.
I guess, my husband's law license and my own law license were doomed since 2007, even before I was admitted to practice law when, through a FOIL request, I discovered at the office of DEC-4 in Stamford, NY, that the map that was used by DEC to establish jurisdiction over my husband's Town of Hamden property:
(1) is named "Walton", precluding a person who would be looking for a map of the Hamden area from receiving any notice of protected environmental objects on a Town of Hamden property;
(2) is blind;
(3) contains no readable legend;
(4) makes it impossible to locate any address of any property on that map, and
(5) does not have any environmentally protected objects noted on that map.
Here is the map that DEC claimed as giving them authority over our property in the Town of Hamden (see that the map says "Walton", so why would a person living in Hamden even look at it to verify whether environmentally protected objects are located on his Town of Hamden property):
It is elementary due process of law that, before a person can be punished by the government for prohibited conduct, he or she should have clear notice from the state of that prohibited conduct.
Every 1st year law student knows that any rights pertaining to a piece of real estate must be documented in writing to be valid.
New York State Department of Environmental Conservation, an agency whose Commissioner is a subordinate of Governor Cuomo, does not have jurisdiction over every property in the State of New York, but only over properties where environmentally protected objects are located.
Location of such objects and their designation as environmentally protected objects must be made in writing, in order to give any New York landowner notice of such an object on the owner's property, in order for the DEC to be able to impose fines, often amounting to thousands and even millions of dollars, and/or and especially, to bring criminal proceedings against New York landowners.
Guess what, when maps are blind and do not show environmentally protected objects, landowners have no notice of such environmentally protected objects on their properties and DEC does not have authority to prosecute them for upsetting such alleged objects.
Leslie Stein, "encouraged" by the announced intent to nominate her to the New York State Court of Appeals by the party in front of her, and to a position not subject to elections and with a higher salary than she has currently and more prestige, simply skipped this initial, threshold and main constitutional issue of notice in her decision and ruled against Mr. Neroni on the merits.
She also hinted on page 3 of her decision that fines and civil penalties were imposed upon both my husband and myself, which was clearly not what happened and not what was in the record.
This case is bigger than my husband's or my own property rights, it is bigger than the fate of my husband's law license or my own, and it is much bigger than my criticism or even lawsuits targeting judicial misconduct in the State of New York.
It is about rampant fraud upon New York state landowners who are subjected to extortion of thousands and, probably, millions of dollars in fines and suffer criminal convictions based on maps where no environmental objects could be found in order to establish authority of the DEC to claim violations of environmental law.
Had Leslie Stein correctly and honestly ruled that the map M-19 which, DEC claimed, showed an environmentally protected object on my husband's property, could not give any landowner any notice of any environmentally protected objects on his or her property, and tossed the case against Mr. Neroni, that decision would have resulted in a flood of litigation from New York landowners seeking to vacate their convictions, have the State of New York return illegally imposed criminal and civil fines and make individual public officials involved pay for the fraud to individual landowners, including punitive damages.
See, for examples, similar jurisdictional maps for the areas of Stamford, NY, Bloomville, NY, and Deposit, NY. They are maps designated as containing alleged references to environmentally protected objects on the maps in the so-called "Water Index". As you can see, they reference absolutely positively nothing, but are used by the DEC to extract from landowners agreements to "remediate" their properties, at their expense, building costly stone "rip-raps", paying thousands of dollars in civil and criminal fines and suffering the indignities and permanent stigma of criminal convictions.
These are only some maps of the area where I live. You are encouraged to seek other maps, of the area where you live, but I doubt that the situation will be different - the maps are blind, do not show environmentally protected objects and cannot be used to give people notice of any environmentally protected objects located on their land. In our time of GPS and GIS mapping the maps that I provide here are a disgrace, and especially because they are used to extort money, inconvenience landowners, intrude upon their enjoyment of their properties and impose upon many of them the permanent stigma of criminal convictions.
Had Martens v. Neroni been decided by Judge Leslie Stein properly, claims to return the illegally imposed fines, going back years, could have bankrupted the State of New York, cost jobs and positions to many public officials and embarrassed judges, several NYS Governors, several NYS Attorneys General and several DEC Commissioners who, instead of eradicating fraud in the government, promoted it, covered it up, defended it and fought tooth and nail to discredit Mr. Neroni and myself as whistleblowers of that fraud.
The case was important enough for Governor Cuomo to consider bypassing Judge Victoria Graffeo in re-nomination for the Court of Appeals despite her 14-year experience on that court and dangling the carrot of his "intent to nominate" Judge Leslie Stein before Judge Stein made a decision on the case where a Department of the Executive branch of the government, the branch Cuomo is the head of, was a party in front of her.
Remember, Cuomo is the guy who disbanded the Moreland Commission on public integrity once the Commission started to investigate his own office, and for that reason, Cuomo's office is currently investigated by the Feds.
The Feds should investigate Cuomo's for publicly and openly buying Judge Stein's decision, too.
If there is the claimed rule of law in this state, Governor Cuomo and Judge Stein must be removed from their respective offices, stripped of their law licenses and criminally prosecuted under state and federal law for corruption and conspiring to perpetrate massive fraud upon New Yorker landowners.
Official maps of other areas of the state of New York show the same as the map of the area that the DEC claims shows our property: they are blind, lack legends, lack any designation of environmentally protected objects on the map and lack any possibility of tying a particular address of a particular property to the map.
I encourage landowners in the State of New York who were ever fined or convicted criminally on complaints of the DEC or who are prosecuted, civilly or criminally, for upsetting alleged environmental objects on their properties, to file FOIL requests as to the official maps based on which the DEC is asserting their authority over their property and claiming notice to the landowners of the environmentally protected objects on their property. You might be surprised what you will find.
I also call upon Governor Cuomo, Judge Leslie Stein and New York State Attorney General Eric T. Schneiderman, as a matter of decency, to step down from their offices, and for Mr. Cuomo and Mr. Schneiderman, to exit their election races.
It will also be proper if attorneys Cuomo, Stein and Schneiderman turn in their law licenses.
Here is the answer:
The intent to nominate Judge Leslie Stein to the New York State Court of Appeals was announced at the time when Judge Leslie Stein had a case pending before her where the New York State Executive Office (DEC) was in front of her.
New York State Governor is the head of the executive branch of the government of the State of New York, and when DEC was in front of judge Leslie Stein in Martens v. Neroni, Case No. 515341, it was the Executive Office, and, subsequently, Governor Cuomo, who was in front of Judge Leslie Stein in that case.
Governor Cuomo, apparently, was insecure as to how Judge Stein was going to rule, given multiple constitutional arguments raised, one of them - lack of notice to a landowner that environmental objects are located on his property - being jurisdictional.
So, Governor Cuomo did not wait how the judge would rule, instead, he sweetened the deal for the presiding judge of the court panel deciding his agency's case by announcing his nomination of that presiding judge, Leslie Stein, to the New York State Court of Appeals.
The judge took the hint perfectly - instead of stepping down from the case, as required by Judiciary Law Section 14, since she was publicly offered a material benefit by a party in an action pending in front of her, she remained on the case as the presiding judge of the appellate panel, and authored the decision favoring the DEC, thus making sure that she controlled it.
In that decision, Leslie Stein ignored the jurisdictional issue that had a potential of reversing all convictions ever obtained by the DEC against New Yorkers and vacate all fines ever imposed upon New Yorkers for violation of environmental law upon their properties, if maps used to describe protected objects on their properties are as blind as the one that allegedly described protected environmental objects on the property belonging in 2001 solely to my husband Frederick J. Neroni.
I guess, my husband's law license and my own law license were doomed since 2007, even before I was admitted to practice law when, through a FOIL request, I discovered at the office of DEC-4 in Stamford, NY, that the map that was used by DEC to establish jurisdiction over my husband's Town of Hamden property:
(1) is named "Walton", precluding a person who would be looking for a map of the Hamden area from receiving any notice of protected environmental objects on a Town of Hamden property;
(2) is blind;
(3) contains no readable legend;
(4) makes it impossible to locate any address of any property on that map, and
(5) does not have any environmentally protected objects noted on that map.
Here is the map that DEC claimed as giving them authority over our property in the Town of Hamden (see that the map says "Walton", so why would a person living in Hamden even look at it to verify whether environmentally protected objects are located on his Town of Hamden property):
It is elementary due process of law that, before a person can be punished by the government for prohibited conduct, he or she should have clear notice from the state of that prohibited conduct.
Every 1st year law student knows that any rights pertaining to a piece of real estate must be documented in writing to be valid.
New York State Department of Environmental Conservation, an agency whose Commissioner is a subordinate of Governor Cuomo, does not have jurisdiction over every property in the State of New York, but only over properties where environmentally protected objects are located.
Location of such objects and their designation as environmentally protected objects must be made in writing, in order to give any New York landowner notice of such an object on the owner's property, in order for the DEC to be able to impose fines, often amounting to thousands and even millions of dollars, and/or and especially, to bring criminal proceedings against New York landowners.
Guess what, when maps are blind and do not show environmentally protected objects, landowners have no notice of such environmentally protected objects on their properties and DEC does not have authority to prosecute them for upsetting such alleged objects.
Leslie Stein, "encouraged" by the announced intent to nominate her to the New York State Court of Appeals by the party in front of her, and to a position not subject to elections and with a higher salary than she has currently and more prestige, simply skipped this initial, threshold and main constitutional issue of notice in her decision and ruled against Mr. Neroni on the merits.
She also hinted on page 3 of her decision that fines and civil penalties were imposed upon both my husband and myself, which was clearly not what happened and not what was in the record.
This case is bigger than my husband's or my own property rights, it is bigger than the fate of my husband's law license or my own, and it is much bigger than my criticism or even lawsuits targeting judicial misconduct in the State of New York.
It is about rampant fraud upon New York state landowners who are subjected to extortion of thousands and, probably, millions of dollars in fines and suffer criminal convictions based on maps where no environmental objects could be found in order to establish authority of the DEC to claim violations of environmental law.
Had Leslie Stein correctly and honestly ruled that the map M-19 which, DEC claimed, showed an environmentally protected object on my husband's property, could not give any landowner any notice of any environmentally protected objects on his or her property, and tossed the case against Mr. Neroni, that decision would have resulted in a flood of litigation from New York landowners seeking to vacate their convictions, have the State of New York return illegally imposed criminal and civil fines and make individual public officials involved pay for the fraud to individual landowners, including punitive damages.
See, for examples, similar jurisdictional maps for the areas of Stamford, NY, Bloomville, NY, and Deposit, NY. They are maps designated as containing alleged references to environmentally protected objects on the maps in the so-called "Water Index". As you can see, they reference absolutely positively nothing, but are used by the DEC to extract from landowners agreements to "remediate" their properties, at their expense, building costly stone "rip-raps", paying thousands of dollars in civil and criminal fines and suffering the indignities and permanent stigma of criminal convictions.
Had Martens v. Neroni been decided by Judge Leslie Stein properly, claims to return the illegally imposed fines, going back years, could have bankrupted the State of New York, cost jobs and positions to many public officials and embarrassed judges, several NYS Governors, several NYS Attorneys General and several DEC Commissioners who, instead of eradicating fraud in the government, promoted it, covered it up, defended it and fought tooth and nail to discredit Mr. Neroni and myself as whistleblowers of that fraud.
The case was important enough for Governor Cuomo to consider bypassing Judge Victoria Graffeo in re-nomination for the Court of Appeals despite her 14-year experience on that court and dangling the carrot of his "intent to nominate" Judge Leslie Stein before Judge Stein made a decision on the case where a Department of the Executive branch of the government, the branch Cuomo is the head of, was a party in front of her.
Remember, Cuomo is the guy who disbanded the Moreland Commission on public integrity once the Commission started to investigate his own office, and for that reason, Cuomo's office is currently investigated by the Feds.
The Feds should investigate Cuomo's for publicly and openly buying Judge Stein's decision, too.
If there is the claimed rule of law in this state, Governor Cuomo and Judge Stein must be removed from their respective offices, stripped of their law licenses and criminally prosecuted under state and federal law for corruption and conspiring to perpetrate massive fraud upon New Yorker landowners.
Official maps of other areas of the state of New York show the same as the map of the area that the DEC claims shows our property: they are blind, lack legends, lack any designation of environmentally protected objects on the map and lack any possibility of tying a particular address of a particular property to the map.
I encourage landowners in the State of New York who were ever fined or convicted criminally on complaints of the DEC or who are prosecuted, civilly or criminally, for upsetting alleged environmental objects on their properties, to file FOIL requests as to the official maps based on which the DEC is asserting their authority over their property and claiming notice to the landowners of the environmentally protected objects on their property. You might be surprised what you will find.
I also call upon Governor Cuomo, Judge Leslie Stein and New York State Attorney General Eric T. Schneiderman, as a matter of decency, to step down from their offices, and for Mr. Cuomo and Mr. Schneiderman, to exit their election races.
It will also be proper if attorneys Cuomo, Stein and Schneiderman turn in their law licenses.
Friday, October 24, 2014
When fraud upon the court is mandated by the court...
Normally, an attorney has a duty of due diligence and candor to the forum.
That means that before you bring a claim before the court, you need to conduct a minimum research and investigation to make sure the claim at least is not false.
This is true for both civil and criminal proceedings, but in civil proceedings, unlike criminal, courts can punish an attorney who is bringing false claims before the court, for frivolous conduct and award against the attorney opponent's counsel fees.
Not in attorney disciplinary proceedings in the 4th Department.
Here, a disciplinary prosecutor in a civil case (attorney disciplinary proceedings are claimed to be "civil" proceedings) is mandated by the court, in case proceedings are transferred from another court and from a recused prosecutor, to proceed on the original pleadings "as is", without regard whether such pleadings are fraudulent or not. 22 NYCRR 1000.8(a).
So, in such cases, frivolous conduct of prosecutors is mandated by the court? In order to protect the public from attorneys prosecuted for frivolous conduct?
Am I missing something or does it appear at least a little crazy to you, too?
That means that before you bring a claim before the court, you need to conduct a minimum research and investigation to make sure the claim at least is not false.
This is true for both civil and criminal proceedings, but in civil proceedings, unlike criminal, courts can punish an attorney who is bringing false claims before the court, for frivolous conduct and award against the attorney opponent's counsel fees.
Not in attorney disciplinary proceedings in the 4th Department.
Here, a disciplinary prosecutor in a civil case (attorney disciplinary proceedings are claimed to be "civil" proceedings) is mandated by the court, in case proceedings are transferred from another court and from a recused prosecutor, to proceed on the original pleadings "as is", without regard whether such pleadings are fraudulent or not. 22 NYCRR 1000.8(a).
So, in such cases, frivolous conduct of prosecutors is mandated by the court? In order to protect the public from attorneys prosecuted for frivolous conduct?
Am I missing something or does it appear at least a little crazy to you, too?
Attorney Mary E. Gasparini teaches what is ethical at CLE seminars while filing fraudulent claims with the court. What a joke and what a valued teacher.
I already wrote on this blog that in January of 2013 a disciplinary charge was launched against me by the Appellate Division Third Department Professional Conduct Committee stating that I, as an attorney representing clients, did not appear at a deposition in a named court case, did not provide an explanation as to why I did not appear, did not answer a subsequent motion to strike and for a default judgment and thus caused the default judgment.
As described, the charge portrays gross neglect of the client.
The court records of that named case clearly show that:
(1) the deposition was held on September 15, 2008 when I was not an attorney and could not be required to appear for clients as an attorney in a court case;
(2) that the motion to strike was made on December 9, 2008, simiarly when I was not an attorney.
I provided a copy of the transcript of the deposition with the above date to:
(1) Attorney Discipliary Committee of the 3rd Department;
(2) the Appellate Division Third Department court;
(3) The U.S. District Court of the Northern District court where the disciplinary case was initially removed
(4) The New York State Attorney General's office representing the disicplinary authorities
(5) The U.S. Court of Appeals for the 2nd Circuit where I appeal the remand back to state court;
(6) To the Appellate Division 4t Department;
(7) To the Attorney Grievance Committee for the 4th Department 5th Judicial District.
That's 7 agencies, where at least 10 people in each, all paid by American taxpayers, were reviewing the court records that I provided and refused to drop obviously fraudulent charges, continuing instead to charge the public for advancing fraud in court against an attorney, in order allegedly to protect the public. Think about it! Isn't it the stuff for John Oliver's Last Week Tonight show?
Only it is not so funny when it is happening to you.
Until now, the fraudulent charge remains pending, and yesterday I received a sworn statement from attorney Mary E. Gasparini of the Attorney Grievance Committee for the 4th Deparment 5th Judicial District stating under oath that:
recitation in Charge I Specifiction I
(1) represents correct procedural history of the case (Ms. Gasparini does not name which case, and I doubt that she knows which case, since she admitted under oath she did not review the case and does not have to because it is transferred from another department and she must prosecute it "as is");
(2) does not allege any misconduct against me;
(3) the date of 2008 when the deposition was held and the motion was brought ( I was admitted to the bar in 2009) is irrelevant to the proceedings.
Here is Charge I Specification I and a full description of what I find wrong in it.
Mary Gasparini, once again, stated under oath that Charge I Specification I correctly describes procedural history of the case, does not allege any misconduct on my behalf, and the date 2008 and my admission to the bar in 2009 are irrelevant to the charge.
Compare that to the actual portion of Charge I Specification I and be the judge as how fraudulent Mary Gasparini's statement is.
"Respondent (and that is me in the Petition that Mary Gasparini prosecutes) did not appear for scheduled depositions, offered no explanations, and failed to submit written opposition to plaintiff's subsequent motion to strike the answer. The above referenced court granted plaintiff's motion to strike and entered a default judgment against the defendants".
Once again, the date of the deposition was September 15, 2008, there is a copy of the transcript of that deposition (listing my husband as an attorney of record, by the way, who actually appeared there), that copy was submitted to 7 agencies including Mary Gasparini's client, but Mary Gasparini did not "review" the charges she is prosecuting against me, because under 22 NYCRR 1000.8(a) apparently she must prosecute whatever is handed to her from the other court, no matter what - so why read if you must do it anyway.
The date of the motion is December 9, 2008.
If any private attorney would be asserting before any court, for nearly TWO YEARS, WITHOUT READING THE COURT RECORDS CONTRADICTING THE ASSERTIONS, certain things that were obviously false, as shown in court records, that attorney would have been CORRECTLY disbarred.
Yet, who will disbar Mary Gasparini? Mary Gasparini? Her colleagues? You understand what a joke it is, don't you? Attorney regulation and discipline protects the public? When a disciplinary prosecutor asserts as a matter of right AND AS A MATTER OF LAW, her right to prosecute on charges without reading those charges and whether the charges are fraudulent or not, when such a prosecutor, without reading underlying court documents, makes false statements as to the contents of those documents to a court, when that charge is pursued for nearly two years against a civil rights attorney and vigorous critic of judicial misconduct somehow the public is protected?
Mary E. Gasparini also claimed in support of her position in proceeding with fraudulent claims, the rule of the Appellate Division 4th Department 22 NYCRR 1000.8(a) providing that if a proceeding is transferred from another court, it must be prosecuted on the original papers.
Not only such a rule is blatantly unconstitutional because it ties the prosecutor's hands and requires the prosecutor to proceed as a puppet of a recused or disqualified prosecutor, having no authority to withdraw the proceedings altogether, amend anything in the charges, or amend anything in the pleadings, including fraudulent statements, but Mary E. Gasparini, an attorney and officer of the court who took a constitutional oath of office of her own and pledged to uphold the U.S. Constitution as the Supreme law of the land, instead upholds an obscure rule that directs her to commit fraud upon the court - and she does by prosecuting a fraudulent charge, supporting fraudulent sworn statement of a recused prosecutor, and aggravates it by making her own fraudulent statements.
Mary E. Gasparini, ladies and gentlemen, and taxpayers of the State of New York, teaches seminars on ethical behavior. She just asked a referee on October 23, 2014 for an adjournment of my case (where she acknowledged under oath she did not read the file before prosecuting on that file) because she needs to teach in two more CLEs in the week of December 1, 2014.
Those who are paying for those seminars, obviously, get a real boon, a teacher who commits fraud upon the court, so far got away with it, adamantly continues with it despite clear documentary evidence that her sworn statements are perjurous, and tries to teach other people about ethics, during state time and I am wondering whether Mary E. Gasparini is paid for her teaching efforts.
As described, the charge portrays gross neglect of the client.
The court records of that named case clearly show that:
(1) the deposition was held on September 15, 2008 when I was not an attorney and could not be required to appear for clients as an attorney in a court case;
(2) that the motion to strike was made on December 9, 2008, simiarly when I was not an attorney.
I provided a copy of the transcript of the deposition with the above date to:
(1) Attorney Discipliary Committee of the 3rd Department;
(2) the Appellate Division Third Department court;
(3) The U.S. District Court of the Northern District court where the disciplinary case was initially removed
(4) The New York State Attorney General's office representing the disicplinary authorities
(5) The U.S. Court of Appeals for the 2nd Circuit where I appeal the remand back to state court;
(6) To the Appellate Division 4t Department;
(7) To the Attorney Grievance Committee for the 4th Department 5th Judicial District.
That's 7 agencies, where at least 10 people in each, all paid by American taxpayers, were reviewing the court records that I provided and refused to drop obviously fraudulent charges, continuing instead to charge the public for advancing fraud in court against an attorney, in order allegedly to protect the public. Think about it! Isn't it the stuff for John Oliver's Last Week Tonight show?
Only it is not so funny when it is happening to you.
Until now, the fraudulent charge remains pending, and yesterday I received a sworn statement from attorney Mary E. Gasparini of the Attorney Grievance Committee for the 4th Deparment 5th Judicial District stating under oath that:
recitation in Charge I Specifiction I
(1) represents correct procedural history of the case (Ms. Gasparini does not name which case, and I doubt that she knows which case, since she admitted under oath she did not review the case and does not have to because it is transferred from another department and she must prosecute it "as is");
(2) does not allege any misconduct against me;
(3) the date of 2008 when the deposition was held and the motion was brought ( I was admitted to the bar in 2009) is irrelevant to the proceedings.
Here is Charge I Specification I and a full description of what I find wrong in it.
Mary Gasparini, once again, stated under oath that Charge I Specification I correctly describes procedural history of the case, does not allege any misconduct on my behalf, and the date 2008 and my admission to the bar in 2009 are irrelevant to the charge.
Compare that to the actual portion of Charge I Specification I and be the judge as how fraudulent Mary Gasparini's statement is.
"Respondent (and that is me in the Petition that Mary Gasparini prosecutes) did not appear for scheduled depositions, offered no explanations, and failed to submit written opposition to plaintiff's subsequent motion to strike the answer. The above referenced court granted plaintiff's motion to strike and entered a default judgment against the defendants".
Once again, the date of the deposition was September 15, 2008, there is a copy of the transcript of that deposition (listing my husband as an attorney of record, by the way, who actually appeared there), that copy was submitted to 7 agencies including Mary Gasparini's client, but Mary Gasparini did not "review" the charges she is prosecuting against me, because under 22 NYCRR 1000.8(a) apparently she must prosecute whatever is handed to her from the other court, no matter what - so why read if you must do it anyway.
The date of the motion is December 9, 2008.
If any private attorney would be asserting before any court, for nearly TWO YEARS, WITHOUT READING THE COURT RECORDS CONTRADICTING THE ASSERTIONS, certain things that were obviously false, as shown in court records, that attorney would have been CORRECTLY disbarred.
Yet, who will disbar Mary Gasparini? Mary Gasparini? Her colleagues? You understand what a joke it is, don't you? Attorney regulation and discipline protects the public? When a disciplinary prosecutor asserts as a matter of right AND AS A MATTER OF LAW, her right to prosecute on charges without reading those charges and whether the charges are fraudulent or not, when such a prosecutor, without reading underlying court documents, makes false statements as to the contents of those documents to a court, when that charge is pursued for nearly two years against a civil rights attorney and vigorous critic of judicial misconduct somehow the public is protected?
Mary E. Gasparini also claimed in support of her position in proceeding with fraudulent claims, the rule of the Appellate Division 4th Department 22 NYCRR 1000.8(a) providing that if a proceeding is transferred from another court, it must be prosecuted on the original papers.
Not only such a rule is blatantly unconstitutional because it ties the prosecutor's hands and requires the prosecutor to proceed as a puppet of a recused or disqualified prosecutor, having no authority to withdraw the proceedings altogether, amend anything in the charges, or amend anything in the pleadings, including fraudulent statements, but Mary E. Gasparini, an attorney and officer of the court who took a constitutional oath of office of her own and pledged to uphold the U.S. Constitution as the Supreme law of the land, instead upholds an obscure rule that directs her to commit fraud upon the court - and she does by prosecuting a fraudulent charge, supporting fraudulent sworn statement of a recused prosecutor, and aggravates it by making her own fraudulent statements.
Mary E. Gasparini, ladies and gentlemen, and taxpayers of the State of New York, teaches seminars on ethical behavior. She just asked a referee on October 23, 2014 for an adjournment of my case (where she acknowledged under oath she did not read the file before prosecuting on that file) because she needs to teach in two more CLEs in the week of December 1, 2014.
Those who are paying for those seminars, obviously, get a real boon, a teacher who commits fraud upon the court, so far got away with it, adamantly continues with it despite clear documentary evidence that her sworn statements are perjurous, and tries to teach other people about ethics, during state time and I am wondering whether Mary E. Gasparini is paid for her teaching efforts.
Monday, October 20, 2014
What is the necessity for judges to have their continued legal education seminars held at resorts, and have all expenses paid either by the public or by private sponsors when the CLE requirement is a personal condition to maintain the judge's law licenses?
Every licensed attorney must attend the required number of hours in continued legal education (CLE) for the reporting period (24 hours in 2 years in the state of New York).
Every attorney must also do that at his own expense. Attorneys are lucky if their law firms pay for their CLE seminars (some law firms do) and/or allow attorneys to attend those during business week.
Many, if not most attorneys, though, carry that expense on their own.
Lately, it has become more or less easy to "attend" a CLE seminar without physically being there - online. Paid subscriptions to such seminars are available to attorneys.
All federal judges and most state judges are also attorneys. Being an attorney and maintaining the licensing requirements (including the CLE requirements) is a pre-requisite for many judges. Yet, judges apparently, are not required to pay for their CLE courses. They either charge the public, or accept gifts of all-expenses-paid CLE seminars in resort areas from private sponsors.
In my view, both of those options create appearances of impropriety for judges and puts the judicial office into a disrepute.
There is a definite problem when the judiciary, while cutting court budgets and creating backlog of cases, splurge public funds allegedly on "continuing legal education" which happens at resorts in and even outside of the country.
It was recently reported that some criminal court judges in New Orleans have spent $75,000.00 over the recent years to take them to such "continued legal education" conferences and seminars.
The same source as reported this splurge reports that judges who were rated least efficient got the most travel at public expense.
Judges defended their behavior because, allegedly, the Louisiana Supreme Court has set the cap for such travel per judge at the whopping $15,000.00 (!). It is beyond me as to what is the need for such an expense for a judge, and why the public must pay $15,000.00 per year per judge for continued legal education (CLE), especially that apparenty such CLE took, reportedly, only 3.5 hours a day and can be easily delivered through an online seminar that the same judge can do from his home on the Internet, without spending a penny of public money.
There is a no less pronounced problem when judges attend such CLE conferences at the expense of private sponsors (see, for example, here, here and here) - and then preside over the sponsor's cases and rule for the sponsors. It is not a direct bribe, of course, but it surely resembles one, and such an appearance of impropriety should be enough to take a judge off the "sponsored" case.
The problem of sponsored travel for judges has existed and was reported for a long time, yet, obviously, nothing has changed.
It is illustrative that law schools opposed a legislative cap on travel expenses for federal judges.
It is no less illustrative that the proposal for the cap provided for an exception, that the cap will not be applicable if the trips were sponsored by governmental bodies, judicial associations and bar associations.
Apparently, if attorneys pay judges' expenses - and then appear before those judges - that is somehow ok?
Recently, a Louisiana judge was disciplined for accepting a direct gift of an all-expenses-paid trip from an attorney who had a case tried in front of the judge.
I see no difference when the all-expenses-paid trips are paid for by a group of attorneys, or a group of corporate sponsors whose cases are or likely to come before that judge.
It is disingenuous at best to claim that judges do not know sponsors of the seminar and do not feel obliged to rule in a certain way to get invited to such a seminar again.
The appearance of impropriety still taints any decisions that such a "sponsored" judge makes.
And that destroys what remains of the public trust in the integrity of the judiciary.
Every attorney must also do that at his own expense. Attorneys are lucky if their law firms pay for their CLE seminars (some law firms do) and/or allow attorneys to attend those during business week.
Many, if not most attorneys, though, carry that expense on their own.
Lately, it has become more or less easy to "attend" a CLE seminar without physically being there - online. Paid subscriptions to such seminars are available to attorneys.
All federal judges and most state judges are also attorneys. Being an attorney and maintaining the licensing requirements (including the CLE requirements) is a pre-requisite for many judges. Yet, judges apparently, are not required to pay for their CLE courses. They either charge the public, or accept gifts of all-expenses-paid CLE seminars in resort areas from private sponsors.
In my view, both of those options create appearances of impropriety for judges and puts the judicial office into a disrepute.
There is a definite problem when the judiciary, while cutting court budgets and creating backlog of cases, splurge public funds allegedly on "continuing legal education" which happens at resorts in and even outside of the country.
It was recently reported that some criminal court judges in New Orleans have spent $75,000.00 over the recent years to take them to such "continued legal education" conferences and seminars.
The same source as reported this splurge reports that judges who were rated least efficient got the most travel at public expense.
Judges defended their behavior because, allegedly, the Louisiana Supreme Court has set the cap for such travel per judge at the whopping $15,000.00 (!). It is beyond me as to what is the need for such an expense for a judge, and why the public must pay $15,000.00 per year per judge for continued legal education (CLE), especially that apparenty such CLE took, reportedly, only 3.5 hours a day and can be easily delivered through an online seminar that the same judge can do from his home on the Internet, without spending a penny of public money.
There is a no less pronounced problem when judges attend such CLE conferences at the expense of private sponsors (see, for example, here, here and here) - and then preside over the sponsor's cases and rule for the sponsors. It is not a direct bribe, of course, but it surely resembles one, and such an appearance of impropriety should be enough to take a judge off the "sponsored" case.
The problem of sponsored travel for judges has existed and was reported for a long time, yet, obviously, nothing has changed.
It is illustrative that law schools opposed a legislative cap on travel expenses for federal judges.
It is no less illustrative that the proposal for the cap provided for an exception, that the cap will not be applicable if the trips were sponsored by governmental bodies, judicial associations and bar associations.
Apparently, if attorneys pay judges' expenses - and then appear before those judges - that is somehow ok?
Recently, a Louisiana judge was disciplined for accepting a direct gift of an all-expenses-paid trip from an attorney who had a case tried in front of the judge.
I see no difference when the all-expenses-paid trips are paid for by a group of attorneys, or a group of corporate sponsors whose cases are or likely to come before that judge.
It is disingenuous at best to claim that judges do not know sponsors of the seminar and do not feel obliged to rule in a certain way to get invited to such a seminar again.
The appearance of impropriety still taints any decisions that such a "sponsored" judge makes.
And that destroys what remains of the public trust in the integrity of the judiciary.
Saturday, October 18, 2014
How can a judge with an ethnic bias and elementary lack of diligence, such as demonstrated by Rita Connerton, remain on the bench in Family Court?
I wrote in this blog about three complaints I filed about Judge Revoir, of Chenango County Family Court, who was assigned to a Delaware County Family Court case and, in my view, was involved in egregious judicial misconduct and retaliation.
Instead of Judge Revoir, they assigned Judge Connerton to the case, where my motion to vacate retaliative sanctions of Judge Becker against me and against my then client is pending since April 18, 2014.
Judge Rita Connerton is listed as a "Supervising Family Court judge" on the Broome County Family Court's website.
Now Judge Connerton wants to simply rely on the oral argument before a recused judge where the recused Judge Revoir, as I wrote before, abused, insulted and berated me, not to mention that reliance of a subsequent judge upon any proceedings before a recused judge is not allowed in court proceedings in New York.
Moreover, according to a witness, Judge Connerton made a statement behind my back in front of my opponent that she allegedly has a headache just thinking about reviewing my "500-page motion".
Obviously, instead, she intends to review an oral argument before a recused judge, that is easier than to actually do her job that I as a taxpayer pay her for.
When Judge Connerton was assigned to the case prior to October 2, 2014, she did not schedule a new oral argument on the motion, even though she came from Binghamton, NY to Delhi, NY to hear other outstanding petitions on the same case.
Since I withdrew from representation of my client in that case, thanks to abuse of Judge Revoir, I was not present on October 2, 2014 before Judge Connerton.
According to a witness, Judge Connerton made statements about my motion, behind my back that she allegedly has a headache even thinking about reviewing my "500-page motion".
The statement, according to the witness, was made in open court before parties and counsel in the proceedings, including my opponent on the motion.
On October 3, 2014 I asked the court to provide me with a copy of an audio recording of such an obvious ex parte communication with parties and counsel behind my back and a show of bias against me.
On October 17, 2014 I received from Judge Connerton's chambers by e-mail a letter dated October 16, 2014 where Judge Connerton indicated to me that she "only discussed scheduling" on October 2, 2014, that she believes the motion was only "my" motion, that she does not believe that an oral argument is "necessary", and that she is going to order a CD of my oral argument before the recused Judge Revoir in order to make a decision on the motion.
I have an interesting history with Judge Connerton.
In 2010 Judge Connerton has made a negative inference in a Family Court proceeding against me based on my alleged "furrowed brow", "pressured speech" and that my alleged "manner at times was contemptuous of authority" (not authority of the court - simply "authority").
The opponent in the case was a governmental body, and I was raising issues of misconduct of that governmental body and its officers and employees based on documentary evidence.
Therefore, I understood the "contempt to authority" statement was meant by Judge Connerton as berating my arguments pertaining to documented misconduct of a governmental body, any governmental body. That was a clear bias in favor of a party who was a governmental body. That party was simply another party in a court proceeding, and Judge Connerton was supposed to be impartial and even-handed to both of parties, the one represented by me and the one which was a governmetal body.
Instead, Judge Connerton expected and required from me a special deference to my opponent, even in view of his and his client's well-documented misconduct.
The negative inference for my alleged "furrowed brow" is another interesting statement from a judge.
I am a middle-aged woman with three children, my oldest child is already out of college and graduate school. Naturally, my appearance might not be that of an 18-year old. I was absolutely floored when a FEMALE judge was making a negative inference about a middle-aged FEMALE attorney's "furrowed brow".
Judge Connerton did not like my age? She did not like that I am not 18? Why? Is there somehow an age limit now for female attorneys to appear in court at all and before Judge Connerton specifically?
To this judge, obviously, appearance of age on a female attorney bears against the attorney's arguments in the courtroom, which is simply beyond belief for the judge who is the Chief Family Court judge of a large judicial district.
Drawing negative inference from "furrowed brow" and "pressured speech" of an attorney who very obviously speaks with a Russian accent clearly raises all kinds of red flags that the judge simply does not like Russians.
It must be obvious for a judge that a person for whom English is not a native language may speak the language differently from a native-speaker, and that pertains not only to the accent, but also to the speech tempo and facial expressions ("furrowed brow").
Moreover, many attorneys "furrow" their brows when under stress in a trial and are making argument to the court within a very limited time that the court gives them, and the inferences were made by Judge Connerton against me specifically for my speech during a trial.
For a judge of this rank, it is completely unconscionable to make ethnic-base negative inferences against parties or counsel.
As to Judge Connerton's behavior on October 2, 2014 and afterwards, there was no good reason for her not to give me an opportunity for an oral argument at that point or afterwards, there was no reason for her to talk behind my back to my opponents about her feelings regarding the prospects of reviewing a large motion with a lot of documentary exhibits.
The situation becomes especially bizarre because one of the exhibits before Judge Connerton on the motion was a recording of my opponent where he does not allow my client to speak when she calls to speak to her child, and instead berates her, berates her mother and berates me as a "crazy Russian attorney" in a 15-minute diatribe.
Apparently, Judge Connerton, with her notion that she can draw inferences against a foreign-born middle-aged female attorney based on her allegedly "furrowed brow" and "pressured speech" in a trial, her ethnic bias against me may coincide with ethnic bias of my opponent who hinted to the Albany County Family Court previously that I allegedly am seeking "sensitive military information" through discovery.
The "sensitive military information" was information about his income. Apparently, for my opponent, who has spent years in the military, somehow a naturalized Russian American is still a Russian spy.
I do not believe this concept is taught to military personnel in the U.S. military, as the U.S. military may not teach bias to its own citizens, no matter what is their native country, and I have been a citizen since 2009.
For Judge Connerton, a middle-aged foreign-born attorney speaking with a Russian accent must not "furrow" her brow, must not speak hurriedly, even when hurried by Judge Connerton herself, and must respect any and all "authority" under any circumstances, even when the alleged "authority" is an opponent in litigation committing documented misconduct.
My question to the public is - how judges with such temperaments and viewpoints get elected? How come they remain on the bench for so long? Shouldn't something be done to eliminate people with such obvious biases and temperament flaws from getting to the bench and remaining there?
And, shouldn't the Chief Administrative Judge Robert Mulvey of the 6th Judicial District of the State of New York finally take notice as to the lack of competence, diligence, temperament flaws and ethnic biases in a judge that occupies such a prominent administrative position in the District?
Or - does Judge Mulvey rely upon absolute judicial immunity for even malicious and corrupt acts on the bench in keeping on the bench and assigning to cases a judge who should not be allowed even close to the courtroom and handling people's destinies?
Instead of Judge Revoir, they assigned Judge Connerton to the case, where my motion to vacate retaliative sanctions of Judge Becker against me and against my then client is pending since April 18, 2014.
Judge Rita Connerton is listed as a "Supervising Family Court judge" on the Broome County Family Court's website.
Now Judge Connerton wants to simply rely on the oral argument before a recused judge where the recused Judge Revoir, as I wrote before, abused, insulted and berated me, not to mention that reliance of a subsequent judge upon any proceedings before a recused judge is not allowed in court proceedings in New York.
Moreover, according to a witness, Judge Connerton made a statement behind my back in front of my opponent that she allegedly has a headache just thinking about reviewing my "500-page motion".
Obviously, instead, she intends to review an oral argument before a recused judge, that is easier than to actually do her job that I as a taxpayer pay her for.
When Judge Connerton was assigned to the case prior to October 2, 2014, she did not schedule a new oral argument on the motion, even though she came from Binghamton, NY to Delhi, NY to hear other outstanding petitions on the same case.
Since I withdrew from representation of my client in that case, thanks to abuse of Judge Revoir, I was not present on October 2, 2014 before Judge Connerton.
According to a witness, Judge Connerton made statements about my motion, behind my back that she allegedly has a headache even thinking about reviewing my "500-page motion".
The statement, according to the witness, was made in open court before parties and counsel in the proceedings, including my opponent on the motion.
On October 3, 2014 I asked the court to provide me with a copy of an audio recording of such an obvious ex parte communication with parties and counsel behind my back and a show of bias against me.
On October 17, 2014 I received from Judge Connerton's chambers by e-mail a letter dated October 16, 2014 where Judge Connerton indicated to me that she "only discussed scheduling" on October 2, 2014, that she believes the motion was only "my" motion, that she does not believe that an oral argument is "necessary", and that she is going to order a CD of my oral argument before the recused Judge Revoir in order to make a decision on the motion.
I have an interesting history with Judge Connerton.
In 2010 Judge Connerton has made a negative inference in a Family Court proceeding against me based on my alleged "furrowed brow", "pressured speech" and that my alleged "manner at times was contemptuous of authority" (not authority of the court - simply "authority").
The opponent in the case was a governmental body, and I was raising issues of misconduct of that governmental body and its officers and employees based on documentary evidence.
Therefore, I understood the "contempt to authority" statement was meant by Judge Connerton as berating my arguments pertaining to documented misconduct of a governmental body, any governmental body. That was a clear bias in favor of a party who was a governmental body. That party was simply another party in a court proceeding, and Judge Connerton was supposed to be impartial and even-handed to both of parties, the one represented by me and the one which was a governmetal body.
Instead, Judge Connerton expected and required from me a special deference to my opponent, even in view of his and his client's well-documented misconduct.
The negative inference for my alleged "furrowed brow" is another interesting statement from a judge.
I am a middle-aged woman with three children, my oldest child is already out of college and graduate school. Naturally, my appearance might not be that of an 18-year old. I was absolutely floored when a FEMALE judge was making a negative inference about a middle-aged FEMALE attorney's "furrowed brow".
Judge Connerton did not like my age? She did not like that I am not 18? Why? Is there somehow an age limit now for female attorneys to appear in court at all and before Judge Connerton specifically?
To this judge, obviously, appearance of age on a female attorney bears against the attorney's arguments in the courtroom, which is simply beyond belief for the judge who is the Chief Family Court judge of a large judicial district.
Drawing negative inference from "furrowed brow" and "pressured speech" of an attorney who very obviously speaks with a Russian accent clearly raises all kinds of red flags that the judge simply does not like Russians.
It must be obvious for a judge that a person for whom English is not a native language may speak the language differently from a native-speaker, and that pertains not only to the accent, but also to the speech tempo and facial expressions ("furrowed brow").
Moreover, many attorneys "furrow" their brows when under stress in a trial and are making argument to the court within a very limited time that the court gives them, and the inferences were made by Judge Connerton against me specifically for my speech during a trial.
For a judge of this rank, it is completely unconscionable to make ethnic-base negative inferences against parties or counsel.
As to Judge Connerton's behavior on October 2, 2014 and afterwards, there was no good reason for her not to give me an opportunity for an oral argument at that point or afterwards, there was no reason for her to talk behind my back to my opponents about her feelings regarding the prospects of reviewing a large motion with a lot of documentary exhibits.
The situation becomes especially bizarre because one of the exhibits before Judge Connerton on the motion was a recording of my opponent where he does not allow my client to speak when she calls to speak to her child, and instead berates her, berates her mother and berates me as a "crazy Russian attorney" in a 15-minute diatribe.
Apparently, Judge Connerton, with her notion that she can draw inferences against a foreign-born middle-aged female attorney based on her allegedly "furrowed brow" and "pressured speech" in a trial, her ethnic bias against me may coincide with ethnic bias of my opponent who hinted to the Albany County Family Court previously that I allegedly am seeking "sensitive military information" through discovery.
The "sensitive military information" was information about his income. Apparently, for my opponent, who has spent years in the military, somehow a naturalized Russian American is still a Russian spy.
I do not believe this concept is taught to military personnel in the U.S. military, as the U.S. military may not teach bias to its own citizens, no matter what is their native country, and I have been a citizen since 2009.
For Judge Connerton, a middle-aged foreign-born attorney speaking with a Russian accent must not "furrow" her brow, must not speak hurriedly, even when hurried by Judge Connerton herself, and must respect any and all "authority" under any circumstances, even when the alleged "authority" is an opponent in litigation committing documented misconduct.
My question to the public is - how judges with such temperaments and viewpoints get elected? How come they remain on the bench for so long? Shouldn't something be done to eliminate people with such obvious biases and temperament flaws from getting to the bench and remaining there?
And, shouldn't the Chief Administrative Judge Robert Mulvey of the 6th Judicial District of the State of New York finally take notice as to the lack of competence, diligence, temperament flaws and ethnic biases in a judge that occupies such a prominent administrative position in the District?
Or - does Judge Mulvey rely upon absolute judicial immunity for even malicious and corrupt acts on the bench in keeping on the bench and assigning to cases a judge who should not be allowed even close to the courtroom and handling people's destinies?
Friday, October 17, 2014
Right to a jury trial in New York is opt out, not opt in
Oh, those checks and balances.
Sometimes, it appears that our Founding Fathers put too much faith in branches of the government to check one another instead of helping one another to take away people's civil rights.
A shining example is New York state constitutional right to a jury trial.
The New York Constitution requires a written waiver of the right to a jury trial in cases where trial by jury existed before the State Constitution was adopted.
As a practicing trial lawyer, I can affirmatively state that this right is routinely violated by the courts in criminal cases, and violated by the Legislature and the court in civil cases.
In criminal cases, I have yet to see a written waiver of a jury trial signed by a criminal defendant. I raised that issue in an appellate court, but the appellate court, as it usually does, ignored the constitutional issue and affirmed the appeal despite a glaring constitutional violation.
In civil cases constitutional violations of the right to a jury trial are no less glaring. Many scholars consider motions for a summary judgment as an.unconstitutional encroachment upon the right to a jury trial, since only the jury can determine facts in a civil case and whether there are outstanding issues of fact.
Yet, if that issue is open for a scholarly debate, the issue of whether the right for a jury trial in civil cases is an opt out (a written waiver of the right to a jury trial is required before such a jury trial is waived, and a civil litigant must be provided a jury trial in a civil case by default) or an opt in (no jury trial unless civil rights litigants ask for such a right and pay a fee for such a right) is not open for debate.
The New York State Constitution clearly says it is an opt out right.
The New York State Legislature, sworn to uphold the New York State Constitution, clearly says it is an opt in right.
A cuvil litigant will not get a jury trial unless he or she asks for it in writing, within a short period of time after a plaintiff's trial note of issue is filed, if the litigant is a defendant in a civil action, and when the litigant is filing a trial note if issue if he or she is a plaintiff in a civil action. In both cases, a fee is charged by the New York state court to have a jury trial.
In view of the fact that over 80% of New York litigants cannot afford an attorney, and would not know to ask for a jury trial, which is supposed, under the state Constitution, to be provided by default, this legislative amendment of the New York State Constitution undoubtedly results in the majority of pro se litigants not asking for a jury trial, especially that for many people, having to pay extra $65.00 for such a right makes a material difference.
I wonder - will New York courts ever start to honor the New York State Constitution they are also sworn to protect and stop depriving people of their right to a jury trial, in civil and criminal cases, by default, unless litigants file a written waiver of such a right after being explained by the court what they are doing?
Cheating people out of their constitutional right to a jury trial, no doubt, is intentional.
It saves counties and the court system money and hassle to handle jury trials, it relieves congestion of the court calendar, it steers litigants not knowing of such a right into settlements, and it gives a practically absolute power to judges to decide cases that should have been decided by juries, with less predictable results than with judges.
A jury trial is one way to fight potential judicial corruption and fixing cases. Such a default right exists for a reason, and it is a gross excess of power for both the New York Legislature and the state courts to make such trials an opt-in right, and an opt-in at a fee in civil cases, rather a right by default, with the constitutional requirement of a written waiver strictly adhered to.
Sometimes, it appears that our Founding Fathers put too much faith in branches of the government to check one another instead of helping one another to take away people's civil rights.
A shining example is New York state constitutional right to a jury trial.
The New York Constitution requires a written waiver of the right to a jury trial in cases where trial by jury existed before the State Constitution was adopted.
As a practicing trial lawyer, I can affirmatively state that this right is routinely violated by the courts in criminal cases, and violated by the Legislature and the court in civil cases.
In criminal cases, I have yet to see a written waiver of a jury trial signed by a criminal defendant. I raised that issue in an appellate court, but the appellate court, as it usually does, ignored the constitutional issue and affirmed the appeal despite a glaring constitutional violation.
In civil cases constitutional violations of the right to a jury trial are no less glaring. Many scholars consider motions for a summary judgment as an.unconstitutional encroachment upon the right to a jury trial, since only the jury can determine facts in a civil case and whether there are outstanding issues of fact.
Yet, if that issue is open for a scholarly debate, the issue of whether the right for a jury trial in civil cases is an opt out (a written waiver of the right to a jury trial is required before such a jury trial is waived, and a civil litigant must be provided a jury trial in a civil case by default) or an opt in (no jury trial unless civil rights litigants ask for such a right and pay a fee for such a right) is not open for debate.
The New York State Constitution clearly says it is an opt out right.
The New York State Legislature, sworn to uphold the New York State Constitution, clearly says it is an opt in right.
A cuvil litigant will not get a jury trial unless he or she asks for it in writing, within a short period of time after a plaintiff's trial note of issue is filed, if the litigant is a defendant in a civil action, and when the litigant is filing a trial note if issue if he or she is a plaintiff in a civil action. In both cases, a fee is charged by the New York state court to have a jury trial.
In view of the fact that over 80% of New York litigants cannot afford an attorney, and would not know to ask for a jury trial, which is supposed, under the state Constitution, to be provided by default, this legislative amendment of the New York State Constitution undoubtedly results in the majority of pro se litigants not asking for a jury trial, especially that for many people, having to pay extra $65.00 for such a right makes a material difference.
I wonder - will New York courts ever start to honor the New York State Constitution they are also sworn to protect and stop depriving people of their right to a jury trial, in civil and criminal cases, by default, unless litigants file a written waiver of such a right after being explained by the court what they are doing?
Cheating people out of their constitutional right to a jury trial, no doubt, is intentional.
It saves counties and the court system money and hassle to handle jury trials, it relieves congestion of the court calendar, it steers litigants not knowing of such a right into settlements, and it gives a practically absolute power to judges to decide cases that should have been decided by juries, with less predictable results than with judges.
A jury trial is one way to fight potential judicial corruption and fixing cases. Such a default right exists for a reason, and it is a gross excess of power for both the New York Legislature and the state courts to make such trials an opt-in right, and an opt-in at a fee in civil cases, rather a right by default, with the constitutional requirement of a written waiver strictly adhered to.
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