"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, April 7, 2015

Can a judge who orders attorneys to commit attorney misconduct and engage in ineffective assistance at a jury trial remain on the bench?

Since courts are created as an institution to maintain the rule of law in the country and prevent the country from sinking into chaos, unlawful decisions of judges are especially dangerous.

Here I will address two decisions of Judge Dowd (communicated to me through his law clerk Claudette Newman to whom Judge Dowd delegates a lot of his duties), in a case Mokay v. Mokay, Delaware County Supreme Court, Index No. 2007-695.

Judge Kevin Dowd recently issued an order that, if I cannot try the case, an attorney without any trial experience must then do it.

Of course, it is inappropriate for an attorney to try a case when coming to the team as a 2nd counsel only 2 weeks before trial, and against the wishes of the client who hired the 2nd counsel for a limited purpose of assisting the trial counsel, not trying the case.

Such conduct would subject an attorney to malpractice claims and disciplinary prosecution.

Yet, the court ordered exactly that.

The 2nd attorney had no choice but to request the client to release her on consent, which was done.

The court then ordered the trial counsel, despite her doctor-authorized medical leave, injury and pain, to still come and try the case, or else the court threatened to use "legitimate means" to "secure her attendance" at that trial.

Of course, making a counsel who is injured and in pain to appear and try the case, on top of violation of counsel's own constitutional rights, is a violation of the client's right to an effective representtion of counsel.

A counsel who is injured to the point of having a doctor-issued leave from work for 2 weeks because of injury, pain and medication, simply cannot provide an effective assistance of counsel in a jury trial.

Yet, that's exactly what the court ordered, and threatened to "secure attendance" of the trial counsel if she does not show up.

Of course, that threat put extra stress on me, shot my already high blood pressure even higher and prevented me from taking the medicine I need, because the medicine makes people drowsy and, in the event Judge Dowd uses his allegedly "lawful means" of "securing attendance" against me, today or during the next days, I must be non-drowsy to be able to oppose these unlawful actions.

So, in retaliation for my motions to recuse on behalf of my client, I am punished by the judge by not allowing me the most basic of human rights - to have doctor-prescribed treatment and to be able to get better.

I should not be put into this position, of course, but, since Judge Dowd so far was not disciplined no matter what he did, he thinks he can continue to disregard applicable law in whatever way he and his law clerk like.

Of course, this is not the rule of law, but that is what we have in our neck of woods in upstate New York.

Will the judge ever be disciplined for practically ordering two attorneys to engage in ineffective representation of counsel, simply because Judge Dowd could not accept that Americans with Disabilities Act compels him to grant a medical adjournment to my client, the same way as Judge Dowd already granted TWO adjournments of the same jury trial to the plaintiffs?

I do not know.

So far, NONE of my complaints against judges in New York who committed misconduct, complaints that were supported by irrefutable evidence (affidavits of witnesses, court records), resulted in discipline, and this is the fate of not only of my complaints, but of the overwhelming majority of complaints against judge in the entire country.

Usually, only criminal charges can unseat a judge, and a judge is charged with a crime only when the crime cannot be hidden any longer and is of extremely embarrassing nature.  

Yet, one never knows.  Maybe, at some point, the NYS Commission of Judicial Conduct will recall why it was created - certainly not for whitewashing judicial misconduct, but for investigating and prosecuting it to protect the people whose lives rogue judges ruin.

Waiting for the "lawful means" to secure my attendance in court - despite a medical leave due to injury

Yesterday, Judge Kevin M. Dowd, through his law clerk Claudette Newman, threatened me that if I do not show up for trial today, despite my medically documented injury and medical leave for two weeks, he will use "lawful means" to "secure my attendance" in court.

So, I am in bed waiting for the SWAT team to show up.

I wonder what "lawful" means can "secure attendance" in court of a medically confirmed injured person and can force her to work when her doctor says she can't.

No matter what Judge Dowd orders, my injury will not instantly heal because of his rulings...

And I wonder, if Judge Dowd proceeds to trial today in Mokay v. Mokay, Delaware County (New York) Index No. 2007-695, without me as Defendant's attorney, what law that the judge read allows him to put an injured attorney before a Hobson's choice - either aggravate her injury and appear in court to try the case, whether she can or cannot physically do it, or to forfeit her client's rights.

And is it any surprise that Judge Dowd used this newly created "law" against an immigrant female attorney and her client who is also her husband - while granting multiple medical adjournments in the same case of the same jury trial without any competent evidence of injury to American-born male attorneys for the asking, with a smile?

Does not seem like a coincidence to me.  Seems more like bigotry.

Monday, April 6, 2015

Judge Kevin M. Dowd threatened to "secure my attendance in court" despite my sick leave - how much baser can this man get?



Here is my story.

I am injured and in pain.

My doctor had given me a leave from work for two weeks, as well as prescription medication to help with the pain that makes me drowsy.

Based on that, I asked Judge Kevin M. Dowd assigned to our Supreme Court case in Delaware County, New York, to adjourn the jury trial that is to start tomorrow.

I notified the judge about my injury back since Friday, yet, I could not get an appointment with my doctor on Friday, so I got it today.

Judge Dowd required from me a "sworn statement" from my medical provider.

He did not require anything like that from my opponents when he granted TWO medical adjournment of the same trial in 2013 and 2014, just granted those adjournments, over my objection, for the asking, with later-provided copy of a letter (not the original of an affirmation) from the trial attorney's physician.

What did Judge Dowd do when I provided my medical leave from me and requested an adjournment?

Did he tell me to get better and grant the request?

No, Judge Dowd, through his law clerk Claudette Newman, denied me the adjournment request, and told me the following:


Once again, I have a legitimate leave from work based on back trauma, and Judge Dowd knows it.

That is all I need, under the Americans with Disabilities Act, not to do any work anywhere.

Yet, Judge Dowd threatens to use "legitimate means" (while there aren't any) to "secure my attendance".

I wonder how the "securing" will be taking place - will I be forcibly ripped out of bed, carried to the courthouse in my pajamas, put behind the counsel desk while aggravating my injury (possible bulging disk) and do what then?  Not allow me to leave that courtroom?

Judge Dowd's behavior is really getting out of whack.

Yet, Judge Dowd is not original in what he is attempting to do.

Recently, a Judge in Minnesota pulled such a trick with a female attorney (why male judges keep harassing female attorneys who moved to recuse them or who sued them - does anybody knows?),

According to a report about the attorney's federal lawsuit, the attorney was grabbed by the sheriff's department during a break in the hearing (after she moved to recuse the judge), then, according to the federal lawsuit of that attorney, the sheriff's department employees stripped her of her cell phone, notes, glasses and shoes (!), strapped her to a wheelchair, wheeled her into the courtroom, where the judge ordered her to proceed with doing the trial - without shoes, glasses, notes, pen or paper, and while strapped into a wheelchair.

Judge Knutson out of Minnesota also filed a complaint to the Bar authorities against the female attorney who he ordered to proceed into trial while strapped in a wheelchair by the sheriff's employees, stripped of her glasses, shoes, pen, paper and notes.

Yet, at the least, the attorney in question was not injured at the time of the judge's outrageous behavior.

I am.

I guess, Judge Dowd wants to outdo that.  

Stay tuned as to what Judge Dowd will do next.

Sunday, April 5, 2015

You've been denied access to your own records in a currently pending court proceedings that can take your livelihood, by a court that is not supposed to have those records, but admits it has them - why ask again?

I have written on this blog that the Appellate Division Third Judicial Department transferred my disciplinary proceedings to the Appellate Division Fourth Judicial Department, by a "confidential" order of June 11, 2014 that relied upon "Petitioner's application and papers submitted in support thereto".

So, there allegedly was an application (a written motion) and papers in support of that application.

That motion and those papers were never served upon me, so that was a clear ex parte communication, which is misconduct on behalf of both the attorneys (disciplinary attorneys!) who made such an application and the court (the disciplinary court!) that accepted and ruled on it. 

So, I guess it is all right to break the law while trying to enforcing the law against somebody else, isn't it?

The order of transfer of June 11, 2014 ordered the transfer of ALL the records of my disciplinary proceedings.

It says that the order was granted upon the "Application by the Committee on Professional Standards" and "upon the papers filed in support of the application".

Obviously, the application for the transfer, as well as the papers supporting the application, are part of the record of my currently pending disciplinary proceedings and had to be transferred with it to the 4th Department, not to mention that such an "application", before being reviewed, has to be first served upon me as a party to the proceedings, which was never done.

I asked the clerk of the 4th Department for a copy of that "application", papers in its support and proof of service of the same upon me.  Since the order of June 11, 2014 somehow added my husband to the caption, my husband also asked for the same.

The 4th Department answered that it did not receive the application among papers of my disciplinary proceedings.

I moved to dismiss proceedings in the 4th Department for lack of jurisdiction since the 4th Department could not proceed on an incomplete record.

The motion was denied without an explanation.

I moved to vacate, renew and reargue the motion that was denied without an explanation, and asked for a reasoned decision this time, as a matter of due process of law.

The motion was denied without an explanation, and with an imposition (without a hearing) of an anti-filing injunction and a sealing order on the basis of Judiciary Law 90 which does not support imposition of sealing orders.

One of the judges who decides the case in the 4th Department, Eugene Fahey, was elevated to the Court of Appeals and recently participated in the denial of a constitutional appeal as of right to me in another case, once again without a plausible explanation.

One of the judges who decided the order of transfer in the 3rd Department, Leslie Stein, was also elevated to the Court of Appeals.

So, engaging in judicial misconduct in this state against a "difficult" attorney who criticizes judicial misconduct is grounds for a promotion.

But, the interesting part is that I keep asking for access to the "application", and now I've got two answers - 

1) from the Third Department court that acknowledged that all records of the current disciplinary proceedings was to be transferred to the 4th Department, but denied to me access to the "application", as if it was still had it, despite the order of transfer:


2) from the office of the NYS Court Administration, which attached to its answer the previous answer by the 3rd Department.

The answer of the NYS Court Administration is blunt:

you were already denied access to it - why ask again?

The NYS Court Administration also states, somewhat vaguely, that "the clerk where the matter is handled typically is the custodian of the court records".

First of all, the clerk of the court "where the matter is handled" is not "typically" the custodian of the court records, but, as a matter of law is the ONLY custodian of the court records.

If it is only "typically", then who ELSE may be the custodian of that court's records?

Yet, neither the 4th Department, nor the 3rd Department, nor the NYS Court Administration gave me answers to the following questions:

(1) Why the "application" was not transferred from the 3rd Department to the 4th Department despite the order of transfer of June 11, 2014;

(2) What is the legal grounds for the 3rd Department, which is no longer the court of record (by its own order of transfer), holds on to a portion of my record that the 4th Department must be using in its decision of a motion for a SUMMARY JUDGMENT in the currently pending proceedings, which requires reliance upon the FULL RECORD.

Apparently, the 3rd Department, no longer the court of record, is blatantly interfering in the course of my disciplinary proceedings and the NYS Court Administration is condoning this behavior.

By the way, I asked the 3rd Department to recuse from multiple other appeals because of this misconduct, and the 3rd Department refused, again, without an explanation.

I guess I will have to ask some other authorities to help the NYS Court Administration and the Appellate Division Third Judicial Department to better understand their own duties.

Saturday, April 4, 2015

For friends of Judge Kevin M. Dowd - and of his law clerk, and his brother-in-law - life in court is good

I already wrote on this blog about a judge, the Albany County Family Court Judge Sue Kushner, who failed to disclose that certain attorneys appearing in her courtroom (and whom she was heavily favoring) were her Facebook friends.

This post is about a new specimen of the same kind, Judge Kevin M. Dowd and his law clerk (who authors his decisions and sometimes announces to the parties decisions of Judge Dowd under her own signature) Claudette Newman. 

Claudette Newman has a Facebook page.

Based on her Facebook page and pictures posted there, a party has recently figured out that Claudette Newman's grandchildren and the party's children play together, his children visited Claudette Newman's house - all the while Claudette Newman was the law clerk for a presiding judge in a proceeding involving the father, and the connections through which came to Claudette Newman's house was through the mother and maternal grandmother of the children.

And Judge Dowd presided over the party's case for years, harassed him for years and bent the law toward the mother and maternal grandmother for years, and the party could not figure out, why.

Until he found the Facebook page of Claudette Newman where she posted pictures where her grandchildren and the party's children were together, and until the party then learnt from a witness that her children were in the law clerk's house, which the law clerk never denied when confronted.

I will explain what is wrong when a judge's law clerk accepts a party-in-litigation's children as her house guests.

Normally, in New York custody proceedings, the only time the judge (and his law clerk) sees the children is in a so-called Lincoln hearing, in the presence of the children's attorney and with a stenographer present taking the record of everything that is said.

Even though the parties are not allowed to be present (to save the children from parents' ire if they say anything "wrong" about either of the parents), and the parents are never allowed to see the transcript of the Lincoln hearing, the trasncript goes to the Appellate Division, in case of an appeal, even though sealed.

So, the procedure is strict - once again, the Lincoln hearing should be scheduled, on notice to parties, the attorney for the child or children should be present and all the conversation should be on stenographic record.

In the case where the law clerk, a person who often sits in the proceeding and who most often, if not always, drafts the judge's decisions and has a tremendous influence on the judge, accepts a party's children, without disclosure, in her home as house guests, there is no attorney for the children present in such communications, no notice  to the parties and their counsel (in this case, the party who had children at the time of the visit to the law clerk, and the party who did not know was pro se and could not afford an attorney, and Judge Dowd did not advise or appoint one for him), and a stenographic record is certainly not taken.  

Since no record exists of possible communications between the law clerk and the children, there is no possibility to know what was it that the judge (and his law clerk) relied upon when making a decision in a custody case - the evidence submitted at trial or the results of communications with children at the law clerk's house. 

The failure of the judge to advise a pro se indigent party of his right to an assigned counsel under the circumstances, especially when English was not even the party's native language, is, on top of being wrong and a reversible error, even more suspicious.

The children did not wind up in the law clerk's house on their own.  They should have gotten there through permission of their parent who had them at the moment, while the other parent was unaware of what is happening.

According to my information, the father did not know and did not allow such visits, and the visits occurred when the children were in the mother's care.  The mother had an attorney, the father did not.

No investigation, as far as I know, was conducted of either the law clerk or the mother's attorney to verify whether the mother's attorney knew of the children's contact with the law clerk and did not report it.

Once again, it was grievous attorney misconduct for the law clerk (1) to allow a party's children into her house and (2) not to report it to the parties in the proceedings.

Yet, when the subject was brought up on a motion to recuse, the judge did not apologize for the actions of his law clerk who did not report the ex parte contacts with the children to the parties and counsel, did not promise to discipline the clerk, did not remove her since she compromised integrity of the judge by her ex parte communications with the children and by non-disclosure of the communications to the parties.

Instead, upon my information, Judge Dowd violently reacted to the motion to recuse accusing the party to be a "very dangerous person" because the party challenged the judge's integrity.

In other words, the judge decided to protect the law clerk who committed misconduct and compromised his integrity by an ex parte communication with children, parties in a custody proceeding, and instead harassed and punished the party which resulted in a federal lawsuit.

I believe, this is a grave matter of public concern that a judge with THIS "level" of integrity remains on the bench.   I understand that the NYS Commission of Judicial Conduct most often acts like a shredder of complaints, but it is sad that authorities take action only when something absolutely outrageous and causing a media scandal in the large media pay attention to it.

As an example, the Pennsylvania authorities ignored or rejected, according to the information in the press, 40 complaints against the "Kids-for-Cash" judges.   Of course, the judges had to be taken off the bench when federal authorities charged, prosecuted and convicted them for taking kickbacks (but not for sentencing 2000 children to loss of liberty in a juvenile facility in return for cash).

What MORE should Judge Dowd and his law clerk do for the NYS Commission for Judicial Conduct to pay attention?

By the way,  the attorney for the mother in the party's case, Dolores Fogarty of Utica, NY, is listed as a full time employee, public defender of the Otsego County:

I do not know how Ms. Fogarty can work as a private attorney while continuing to be a full-time employee of the Otsego County, but she surely does.

Ms. Fogarty has a fine example in working on the side of being a full-time county employee from other "judge-connected" attorneys in the area.

Ellen Coccoma, the County Attorney for the same Otsego County and the wife of the most powerful upstate New York judge, Chief Administrative Judge for upstate New York Michael Coccoma - Mrs.Coccoma works as a full time employee of Otsego County, and at the same time toils on the side as a private attorney, as a "special counsel" for a Binghamton firm Hinman, Howard and Kattel, a law firm that features the local Supreme Court courthouse as the picture for their Binghamton office, so being a full time county employee and working on the side as a private attorney, obviously during county-paid time, is "in vogue" in upstate New York.

In Delaware County, a full time County Attorney who is currently running for a Family Court judgeship, Porter Kirkwood, former employee and colleague of the local horror story, "king of the bench" Judge Becker and Judge Becker's friend, has toiled as a private attorney during taxpayer-time for years, when he was still an Assistant County Attorney.

But Judge Dowd is apparently unconcerned that attorneys appearing in his courtroom appear there while they must be someplace else, where taxpayer pay them to be.

Judge Dowd has a soft spot for government employees and always bends over backwards in court proceedings to suit their needs, whether the law allows that or not, according to my personal experience with this judge as an attorney.

Upon information and belief and review of records, Judge Dowd bent over backwards for "Dee" Fogarty's client in the party's proceedings that I describe above in the case where Judge Dowd's law clerk had the party's children, without the party's knowledge, as house-guests.  

Maybe, Judge Dowd has a soft spot for public defenders like "Dee" Fogarty because Judge Dowd's own brother-in-law John Cameron is a pubic defender in Chenango County, and I wonder whether being a brother-in-law of a judge helped him along to get that position.

 So, if the judge assigns to an indigent party a public defender,  interesting questions can be raised as to privacy, privileged communications and conflicts of interest in that representation that may, and, I am sure, do arise under such circumstances.

Attorneys know about the potential conflicts of interest, but are deathly afraid of voicing an opposition to anything Judge Dowd does, however wrong it is, for fear of being "blackballed" from "his" courtroom and from the practice of law generally.

But, let's go back to Judge Dowd's law clerk's Facebook page.

I provide here scans of pictures and names of all of Claudette Newman's Facebook friends that were listed on her Facebook page as of today.

In the very first batch of Claudette Newman's friends we see Zachary T. Wentworth.

Zachary T. Wentworth is an assistant public defender of Chenango County, working under Judge Dowd's brother-in-law John Cameron.

That Zachary T. Wentworth was assigned to the party in question after Judge Dowd recused from the party's case (with a retaliation that eventually resulted in a federal lawsuit against Judge Dowd) is phenomenal.

So, even though Judge Dowd recused from the party's case, with a retaliation involving egregious harassment, the reach of Judge Dowd into the case never ended.

The next batch of Claudette Newman's Facebook friends includes Brett Cowen, of Cowen Law Firm, with offices in Sidney, NY and Delhi, NY:

When you look at Judge Dowd's assignments of attorneys in, let's say, Chenango County Family Court (available for public viewing on e-courts), you will see that being a Facebook friend of a judge's law clerk pays off for Mr. Cowen's law firm, as well as it pays off for Judge Dowd's brother-in-law's employees and spouses of Judge Dowd's brother-in-law's employees.

Remember, assignments for assigned attorneys means money, at $75.00 an hour, including travel time.

Brett Cowen's law firm's offices are located in Sidney, NY and in Dehi, NY.  I wonder which of the distances he bills in his vouchers for travel.

But I wonder even more, are assignments of the Cowen law firm by Judge Dowd listed below a product of Brett Cowen's friendship with Judge Dowd's law clerk?  Or Brett Cowen's internship with Judge Dowd that Mr.  Cowen reports on his LinkedIn page?

Here are the rest of Claudette Newman's Facebook friends:

What readily springs to mind is that not only Judge Dowd's brother-in-law is the public defender in Chenango County, but Judge Dowd's law clerk Claudette Newman is at least Facebook friends with:

Assistant Public Defender Zachary Wentworth

Appears to be the mother of the Assistant Public Defender Julie Wentworth, and

the wife of the other assistant public defender, Aaron Dean - Diane DiStefano

Interesting connections, aren't they?

Indigent parties who get assignments of public defenders may keep wondering how whether those public defenders got appointed and keep their jobs because of the familial relationship of their boss with the judge and because of the assistant public defenders' or their family members' friendship with Judge Dowd's law clerks...

And look how many assignments Zachary Wentworth gets in Judge Dowd's cases in Family Court, and what such "friendship", not to mention work for Judge Dowd's brother-in-law as Mr. Wentworth superior, does to create conflicts of interest with his clients, especially if there are issues of judicial bias or misconduct of Judge Dowd to be addressed, and knowing Judge Dowd, such issues should arise in nearly every case.

What also readily springs to mind is that not one, not two, but three local court stenographers who are actively appearing in Judge Dowd's cases are Facebook friends of Judge Dowd's law clerk:

Brenda Friedel, court reporter

Helen Hagen, senior court reporter

Deb Thiel-Stalker, court reporter

I know all three of these ladies through appearances in court where they took record in the cases I handled as an attorney, and I have nothing against them personally.  Nor do I have questions about their professionalism at this time.

Yet, on behalf of my clients I have a concern as to independence of transcription if, to get a lucrative assignment to a court case, a stenographer must befriend the judge's law clerk, and especially because Judge Dowd fights tooth and nail against videotaping of open court proceedings where he is presiding, even though New York Chief Judge Lippman has publicly announced two years ago that not having "cameras in the courtroom" is an anachronism.

My concern is that, if there are any disputes regarding completeness and/or correctness of the transcript, financial dependency on the judge and "friendship" with the judge's law clerk may take precedence over the court stenographer's professionalism.

So, when you have a Judge Dowd case, immediately check - is your attorney a FB friend with Claudette Newman?  If not, you might be in trouble.

Thursday, April 2, 2015

New York DEC maps of "environmentally protected objects" are bluff, and it is now up to litigants in the Appellate Divisions, 1st, 2nd and 4th judicial departments to bring the NYS Court of Appeals to that realization

We received a "template denial" from the New York State Court of Appeals on our appeals as of right on constitutional questions in a case against New York State Department of Environmental Conservation.

I know that such cases have to be decided by panels of 5 judges.

I only see the name of one judge (Jonathan Lippman) who "presided" over the case, and an indication that Leslie Stein did not take part (the same Leslie Stein who has made the decision in this case in the court below after being offered by the Chief Executive Officer, the Governor, what pretty much looks as a bribe, a nomination to that same Court of Appeals).

I also see that Judge Lippman defied his constitutional oath of office in this decision and usurped authority to pick and choose which constitutional questions that he has to review on appeal are "substantial" and which are "insubstantial".

As far as I know, the U.S. Constitution does not make such a distinction, and does not give authority to anybody to make such a distinction.

Yet, here is what we have from the lips of Judge Lippman, the lecturer as to "justice for all" from all imaginable pulpits:

The issues in the case were crystal clear:  the government (and the courts) imposed upon my husband in 2006 notice of prohibited conduct (alleged protected stream) where the alleged stream was allegedly disturbed in 2001, while the notice was created in 2006, and that was not a map, but an affidavit of a DEC biologist, and while the map was and still is BLIND, UNREADABLE and cannot give any notice to anybody else.  Also, the DEC biologist's affidavit could only be used as an official DEC record for purposes of giving notice if it was filed with the NYS Secretary of State, with a notice to the public to give comments - which, of course, was never done, it was a self-serving document prepared for litigation 5 years after the DEC lost its case in criminal court.

Here is the map and my earlier description of issues pertaining to the map and the case.

Please, see for yourself if you can see any "protected streams" or tie the map to any addresses.  If you can, you can be awarded a crystal ball reader award, because in the DEC only one person can allegedly "read" that map - and that is the author of the affidavit of the DEC, biologist (not a map specialist) Jerome Fraine.
Can a notice go backwards?  Of course, not.
Can an affidavit of biologist created in 2006 serve as an official notice of a protected environmental object on the property in 2001? 

Of course, not.
Can a blind map created in 1920s for a purpose that had nothing to do with environmental protection, did not list streams and did not allow to find any addresses, and the map named "Walton" give notice to a party residing in the town of Hamden, whose address is nowhere mentioned in the DEC or state court proceedings?
Of course, not - but this is to a rational mind.
For a mind that wants to favor the government no matter what, and to disfavor the Neronis no matter what, the "rule of law" works differently.
There was litigation in:
1) Hamden Town court - criminal proceedings against my husband were dismissed in 2001;
2) In 2006 DEC revived the same proceedings administratively - and held them in front of two administrative law judges.  The one judge who told the DEC that their case sucks got replaced;
3) in DEC - before the Commissioner of the DEC on appeal;
4) In Delaware County Supreme Court before Judge Becker 
  •       where the appellate quasi-judicial officer, the Commissioner Alexander "Pete" Grannis sued Mr. Neroni ( and me as a now "necessary party") after not allowing me in as a necessary party at the administrative level and while trying to confirm his own decision as a judge while now suing as a party, which is normally not allowed by law;
  • where Judge Becker was at the same time represented by the NYS Attorney General in his individual capacity, which disqualified the NYS Attorney General from appearing in front of that same judge representing other clients - and yet the NYS Attorney General represented the Commissioner in those proceedings in front of Becker and (surprise!) - won! against us.  Of course, recently a witness and I saw Becker shaking an Assistant AG's hand as if he was Becker's long-lost friend
4) In NYS Appellate Division 3rd Department - where Judge Stein got a boost, a nomination to the NYS Court of Appeals, from the NYS Governor (the Chief Executive Officer of the State of New York and DEC Commissioner's superior) a week before  (surprise!) she made a ruling for the DEC.
5)we also tried to bring federal issues before the U.S. District Court for the Northern District of New York (that referred all federal constitutional issues back to the State Courts);
6) in the U.S. Court of Appeals for the 2nd Circuit  (that affirmed what the NDNY said, referring all federal constitutional issues back to state courts because state courts allegedly can fairly review federal constitutional issues);

and now 

7) as the culmination of all our efforts, New York state Court of Appeals, with Judge Lippman presiding (whom I described and mocked, along with his recently indicted buddy Silver, in many blogs), rendered a form decision, after harassing us and requiring us to produce voluminous records for their "review", that (surprise!) no "substantial" constitutional questions were violated or even involved.

Once again, our constitutional rights may have been violated, but not "substantially".

So, the court gets to pick and choose if an admitted violation of constitutional rights is "substantial" or "insubstantial".

I am not aware of any such right given by any authority to the New York State Court of Appeals.

So, ladies and gentlemen, the judges of New York's highest court, each one of whom took office by taking an oath to protect the U.S. Constitution, magnanimously allowed the executive branch of the New York State government to violate people's constitutional rights - if the court, in its infinite wisdom, but without any reasoning or explanation, decides that the constitutional violation was "insubstantial".

The court did not provide any criteria by which the violation is substantial or insubstantial.

I would say, if a person is required to pay tens of thousands of dollars for the alleged violation that he could not possibly have notice of at the time he did anything that is now claimed as a violation, that is a substantial constitutional due process violation.

I would say, it is a substantial constitutional violation, a violation of due process and equal protection of laws if a person is mandated by the court to destroy on his property a pond with wildlife on his property to make a stone "wrip-wrap" to allow "trout" to flow down the "stream", where there is no stream, no trout, and where the neighbor downstream ( who reported my husband out of spite and long since died) was allowed by DEC to build a contraption in that same stream that would have blocked any trout if it existed.

And - if a person is mandated to do the above simply because it pointed out to the government that ALL of its maps of "environmentally protected objects" are bluff.  

Yes, all maps in the State of New York allegedly claiming that there is something environmentally protected on them, are bluff.  They are unreadable and do not give homeowners any notice as to what is on them, and do not allow the homeowners to tie addresses of their properties to any "environmentally protected objects", which are not clearly designated in the maps.

We found that out, we raised that issue, we were punished for that.

That's why we are publishing this information and let the public know that, before paying the fines and agreeing to 'consent degrees" for penalties and 'remediation" on their properties, they may check whether the maps actually reflected anything on their properties.

The Court of Appeals did not take the case and did not resolve it on the merits.

Therefore, litigants in the 1st, 2nd and 4th departments - it is your turn challenging validity of DEC's maps of "environmentally protected objects".

When enough lawsuits are brought and when the issue cannot escape review of the New York State Court of Appeals, they will suddenly find the issue a "substantial constitutional violation".

If there is no major public outcry, people's admittedly violated constitutional rights, in the eyes of the highest New York State Court, are insubstantial.


Wednesday, April 1, 2015

A complaint has been filed against Judges Kevin M. Dowd of Chenango County Supreme Court and against Joseph F. Cawley of Broome County Court

A defense counsel receives evidence from plaintiffs' counsel, on the eve of a jury trial, that the judge and his personnel are witnesses in the case.

The defense counsel subpoenas the judge and his personnel as witnesses at the trial.

The judge (Judge Dowd) refuses to recuse and continues to control evidence and interfere with subpoening witnesses to prevent impeachment of credibility of Plaintiffs' evidence.

In order to do that, Judge Dowd accepts filings of letters instead of affidavits from politically connected attorneys directly into his chambers, while the court may not review any submissions in the nature of motions unless they are first filed in the county clerk's office of the county where the case is litigated.

I have evidence showing that nothing has been filed in the county, yet Judge Dowd accepted letters-in-lieu-of-pleadings by fax and mail directly into his chambers and relied upon such papers, even though, once again, Judge Dowd had no authority to review any pleadings or papers filed in substitution of pleadings that were not filed first with the county clerk's office.

Judge Dowd also involved another judge, Judge Joseph F. Cawley of the Broome County Court, in his wrongdoing.

Apparently, communicating with a judge who has been called as a witness in a proceeding, tainted Judge Cawley and made him a witness in the same proceedings.

Moreover, transfer of files to Judge Cawley in support of the "Order to Show Cause" that Judge Cawley signed while Judge Dowd remained on the case and while there is no order of assignment of Judge Cawley to the case, was done "chambers-to-chambers", without initial filing with the Delaware County Clerk's office, and without return of the files by Judge Dowd back to the court clerk to be transferred to another judge.

Apparently, no procedural constraints exist when judges want to protect somebody's misconduct, including their own.

Well, hopefully, the NYS Commission of Judicial Conduct must investigate now.  If they do not, I will simply include Judge Dowd's and Judge Cawley's misconduct into the case study of judicial misconduct in my upcoming book on the subject.

Litigants and attorneys appearing in front of Judge Dowd! Be on the alert as to how the judge accepts filings from your opponents, especially if your attorneys are well-connected attorneys who the judge appears to favor.   I would suggest always checking with the County Clerk of the county where your case is litigated (if you are in the Supreme Court).  This judge has a pattern of bypassing the law on filing with attorneys he favors.

Voters, when Judge Cawley comes up for re-election, note that he is only luring you with promises of how good and law-abiding he is up until he gets on that bench.  Then, apparently, what another judge (witness in the proceedings) directs him to do, controls.