Another case of playing tricks with trial exhibits was reported to me by a reader of my blog.
The reader, a pro se litigant, together with the counsel for the opponent, was directed, after trial, to submit a summation statement to the court, before the court issues a decision.
When the reader tried to review trial exhibits at the Chenango County Supreme court, he was denied access to exhibits.
Yet, when he asked where the exhibits are, he was told that the opposing attorney was given the exhibits - both those submitted by the attorney and those submitted by the pro se party - and has them in her office for review.
So, the claims of the New York State Court Administration that trial exhibits remain at all times in the custody of the county clerk and after trial go directly to the party who submitted them are not what the reality is.
The reality is that trial exhibits are given for review to those attorneys who the court favor and are not given for review to those pro se parties and attorneys who the courts/presiding judges disfavor, even if those exhibits are their own, submitted by them at the trial.
I invite readers of my blog to e-mail me at tatiana.neroni@gmail.com reports of their experience as to access to trial exhibits, whether pre-marked and before trial, or after trial before and after the trial decision, if they were given review of such by New York State courts and if not, about the circumstances and reasoning given by the courts for not giving such access.
If the reporters permit, I will publish their stories.
Stay tuned.
Monday, June 29, 2015
Saturday, June 27, 2015
Constitutional debates about the "rainbow" decision
Am I happy that the U.S. Supreme Court recognized the right of Americans to enter same-sex marriages?
I cannot say I am happy, because I am in a heterosexual marriage.
I can say I am satisfied that, now that the U.S. Supreme Court has recognized that same-sex marriage is within the rights guaranteed by the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, the states (most likely) will not be denying same sex couples the panoply of rights given to heterosexual couples the moment they marry.
Now the debate is raging among scholars, was the "rainbow" decision "judicial activism", was it warranted by the U.S. Constitution or did judges overstepped their boundaries in making this decision?
Here is the Equal Protection Clause of the 14th Amendment to the U.S. Constitution:
" No state shall ... deny to any person within its jurisdiction the equal protection of the laws."
When states deny to adult consenting Americans rights accorded to married heterosexual couples, which rights accrue out of the mere fact of marriage (without regard to duration of marraige, and without regard to age of couples and ability or desire to procreate), for no other reason but that, according to certain religions, same-sex cohabitation and marriage is a sin because sexual intercourse in such relationships cannot lead to procreation, that would be establishing religion by the state (in violation of the 1st Amendment of the U.S. Constitution) and denying equal protection of laws to citizens of the states, which is prohibited by the Equal Protection Clause of the 14th Amendment.
That said (and this is just my personal opinion as to the same-sex marriage issue), certain interesting constitutional issues arose in dissents of four U.S. Supreme Court judges in the "rainbow" case.
Here is the split between judges in the "rainbow case":
Here is a table of majority and dissents:
You can see from the table that all female judges on the court sided with recognizing same sex marriage as a civil right under the Equal Protection Clause of the 14th Amendment.
All four of the dissenters filed their own separate dissenting opinions, as well as joining in some, but not all opinions of other judges.
Thus, Chief Judge Roberts participated only in his own dissenting opinion.
Judges Thomas and Scalia authored one dissenting opinion each and joined in all dissenting opinions of all other judges.
Judge Alito authored one dissenting opinion and did not join dissenting opinions of other judges.
So, there is a split even in the dissent, at least as demonstrated by separate positions of Judge Roberts (not supported by Judge Alito) and of Judge Alito (not supported by Judge Roberts).
Judge Roberts says in his dissent what seems to be the right thing to say:
No, "this Court is not a legislature", it is true, that is what Article III says.
Yet, same sex couples did not ask the court to legislate, they asked them to force the state to recognize their equal rights under the state law to marry, pass inheritance to their life partner in a committed - yes, sexual - relationship, have access to the loved one as "next of kin" when the partner is ill, make decisions as the "next of kin", and to have all other rights that are conferred upon heterosexual couples at the ringing of the wedding bells.
Moreover, Judge Roberts is seemingly unconcerned about the court's continuously legislating, going beyond its boundaries and establishing restrictions upon civil rights litigation that were never authorized by the U.S. Congress, such as:
I cannot say I am happy, because I am in a heterosexual marriage.
I can say I am satisfied that, now that the U.S. Supreme Court has recognized that same-sex marriage is within the rights guaranteed by the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, the states (most likely) will not be denying same sex couples the panoply of rights given to heterosexual couples the moment they marry.
Now the debate is raging among scholars, was the "rainbow" decision "judicial activism", was it warranted by the U.S. Constitution or did judges overstepped their boundaries in making this decision?
Here is the Equal Protection Clause of the 14th Amendment to the U.S. Constitution:
" No state shall ... deny to any person within its jurisdiction the equal protection of the laws."
When states deny to adult consenting Americans rights accorded to married heterosexual couples, which rights accrue out of the mere fact of marriage (without regard to duration of marraige, and without regard to age of couples and ability or desire to procreate), for no other reason but that, according to certain religions, same-sex cohabitation and marriage is a sin because sexual intercourse in such relationships cannot lead to procreation, that would be establishing religion by the state (in violation of the 1st Amendment of the U.S. Constitution) and denying equal protection of laws to citizens of the states, which is prohibited by the Equal Protection Clause of the 14th Amendment.
That said (and this is just my personal opinion as to the same-sex marriage issue), certain interesting constitutional issues arose in dissents of four U.S. Supreme Court judges in the "rainbow" case.
Here is the split between judges in the "rainbow case":
Here is a table of majority and dissents:
|
Majority – names/genders of judges
|
1st Dissent
|
2nd Dissent
|
3rd Dissent
|
4th Dissent
|
|
·
Kennedy - M
·
Breyer - M
·
Ginsburg – F
·
Kagan – F
·
Sotomayor – F
|
Author of dissent:
Chief Judge Roberts – M
Joined:
Scalia – M
Thomas - M
|
Author of dissent:
Scalia - M
Joined:
Thomas - M
|
Author of Dissent:
Thomas - M
Joined:
Scalia - M
|
Author of dissent:
Alito - M
Joined:
Scalia - M
Thomas - M
|
You can see from the table that all female judges on the court sided with recognizing same sex marriage as a civil right under the Equal Protection Clause of the 14th Amendment.
All four of the dissenters filed their own separate dissenting opinions, as well as joining in some, but not all opinions of other judges.
Thus, Chief Judge Roberts participated only in his own dissenting opinion.
Judges Thomas and Scalia authored one dissenting opinion each and joined in all dissenting opinions of all other judges.
Judge Alito authored one dissenting opinion and did not join dissenting opinions of other judges.
So, there is a split even in the dissent, at least as demonstrated by separate positions of Judge Roberts (not supported by Judge Alito) and of Judge Alito (not supported by Judge Roberts).
Judge Roberts says in his dissent what seems to be the right thing to say:
No, "this Court is not a legislature", it is true, that is what Article III says.
Yet, same sex couples did not ask the court to legislate, they asked them to force the state to recognize their equal rights under the state law to marry, pass inheritance to their life partner in a committed - yes, sexual - relationship, have access to the loved one as "next of kin" when the partner is ill, make decisions as the "next of kin", and to have all other rights that are conferred upon heterosexual couples at the ringing of the wedding bells.
Moreover, Judge Roberts is seemingly unconcerned about the court's continuously legislating, going beyond its boundaries and establishing restrictions upon civil rights litigation that were never authorized by the U.S. Congress, such as:
- immunities;
- abstentions;
- deterrences doctrines;
- doctrines of "comity and federalism";
- the Rooker-Feldman doctrine, interpreted far beyond its intended statutory boundaries etc.
If the rampant legislating from the bench through "doctrines", "rules", and "tests" that interpret the Civil Rights Act and the U.S. Constitution into non-existence and that so far made civil rights litigation in the United States nearly impossible, are actually lawful activities by the U.S. Supreme Court in Chief Judge Roberts' opinion (and I did not see dissents from him on constitutionality of abstentions, immunities and other judge-created restrictions on civil rights jurisdiction of federal courts), why so ardently claim that in the case of same sex marriage judges legislated from the bench - and it is somehow not what judges of the U.S. Supreme Court, including its Chief Judge Roberts, do every day?
When I am talking about the death of civil rights litigation, I mean not single cases supported by public opinion and multiple amicus curiae briefs, but to all civil rights litigants, especially those who are not attractive, those who are poor, inarticulate, have criminal history or history of criticizing the government.
The law should not be a public opinion poll. In fact, judicial independence requires judges to disregard public opinion polls and to disregard how many states recognize same sex marriage. It is the principle of inequality and not statistics of the state allowing same sex marriage that were supposed to control the court's decision, and on that issue I agree with the dissenters.
Of course, I need time to analyze 103 pages of the small-font single-spaced "rainbow" decision.
I will publish more analysis of the "rainbow" dissents, realistically speaking, after the July 4th weekend.
Stay tuned.
Younger and Rooker-Feldman, meet the Chilling Test (and vice versa)
When the U.S. Supreme Court creates rules by which civil rights litigation must operate (even though the U.S. Supreme Court may not legislate, under Article III of the U.S. Constitution), sometimes (if not always) it creates quite incompatible hybrids.
Yet, the parts of the hybrids are created in separate cases, and thus are not fully visible.
If those hybrids are brought before the attention of federal judges, both trial and appellate, they are quickly dismissed as meritless and frivolous, often with sanctions against the civil rights plaintiffs and their attorneys who brought those challenges, the U.S. Supreme court either denies certiorari, or the civil rights litigants are exhausted, emotionally and financially and do not bring a petition for a writ of certiorari in the U.S. Supreme Court - and the issue of federal courts' incompatible "rules" restricting the civil rights litigation gets buried.
Yet, there remains an issue pertaining to the impossibility of meeting the U.S. Supreme Court's "chilling" test - an add-on requirement for the right of civil rights litigants to bring a challenge for violations of the 1st Amendment of the U.S. Constitution on the issue of free speech.
The U.S. Supreme Court ruled that a plaintiff may not bring a 1st Amendment free speech challenge where the plaintiff has not pled the so-called "chilling" effect, in other words, if the plaintiff has not pled that he was chilled or deterred from exercising his or her 1st Amendment rights.
I cannot reasonably discern, for all my legal training and experience as a civil rights attorney, what exactly did the court mean when establishing this "chilling effect" test.
The Civil Rights Act clearly does not require civil rights plaintiffs to exhaust grievances in state courts before bringing a federal civil rights lawsuit, including for violations of the 1st Amendment.
Nevertheless, federal courts regularly dismiss civil rights lawsuits on "Younger abstention" grounds, a judge-created doctrine that claims to restrict jurisdiction of federal court by requiring to first litigate the issue in state court, even if the action was not pending in court at the start of the federal litigation - but was strategically brought in state courts after the federal litigation began.
State courts then studiously avoid constitutional issues, if brought in front of them, at the trial and appellate levels, and it is practically impossible (if the case is not of national importance) to get to the U.S. Supreme Court, if a civil rights plaintiffs "mere" 1st Amendment rights were violated in a single case.
When state courts decide any constitutional issues in litigation which was - or "could have been" - brought before state courts, and usually such constitutional issues are decided without analysis by ignoring the issues or slapping the party and attorney for the party who brought the issues with "frivolous" sanctions for "meritless" litigation, without any analysis or reasoning.
Then, the civil rights plaintiffs tries to go back to the federal court - and meets the double-wall of "no chilling effect" (because the plaintiff cannot plead the chilling effect since he/she already tried to raise the issue somewhere in a state court) and the "Rooker-Feldman" bar, a judicially created bar to federal jurisdiction in civil rights cases where the court is claiming that the state court plaintiff is simply trying to use federal courts as state appellate courts - which is not allowed by statute.
So, between being kicked out of court on a Younger abstention issue if the 1st Amendment issue is brought before it is brought in state court, and the "tradition" of ignoring of constitutional issues by state courts, and then the "Rooker-Feldman" and "no chilling effect" dismissals by the federal district courts, and the "fast track" 3-judge-panel rubber-stamping of whatever the federal district courts say on federal appeals, and the selective blindness of the U.S. Supreme Court to most civil rights petitions for a writ of certiorari - the chilling effect can never be proven by a civil rights plaintiff.
I found one instance though when a federal appellate court found this test invented by the U.S. Supreme Court - "if you file a lawsuit for violation of your 1st Amendment rights - you prove you could file a lawsuit, therefore you did not have the chilling effect and you cannot then prove the 1st Amendment violation" - as circular logic and - gasp! - refused to follow it in a prisoner civil rights litigation case.
Good for the Ningth circuit. Bad for the rest of the country where the "chilling test" meet Younger abstention and the Rooker-Feldman doctrine is still the court-invented rule.
Yet, the parts of the hybrids are created in separate cases, and thus are not fully visible.
If those hybrids are brought before the attention of federal judges, both trial and appellate, they are quickly dismissed as meritless and frivolous, often with sanctions against the civil rights plaintiffs and their attorneys who brought those challenges, the U.S. Supreme court either denies certiorari, or the civil rights litigants are exhausted, emotionally and financially and do not bring a petition for a writ of certiorari in the U.S. Supreme Court - and the issue of federal courts' incompatible "rules" restricting the civil rights litigation gets buried.
Yet, there remains an issue pertaining to the impossibility of meeting the U.S. Supreme Court's "chilling" test - an add-on requirement for the right of civil rights litigants to bring a challenge for violations of the 1st Amendment of the U.S. Constitution on the issue of free speech.
The U.S. Supreme Court ruled that a plaintiff may not bring a 1st Amendment free speech challenge where the plaintiff has not pled the so-called "chilling" effect, in other words, if the plaintiff has not pled that he was chilled or deterred from exercising his or her 1st Amendment rights.
I cannot reasonably discern, for all my legal training and experience as a civil rights attorney, what exactly did the court mean when establishing this "chilling effect" test.
The Civil Rights Act clearly does not require civil rights plaintiffs to exhaust grievances in state courts before bringing a federal civil rights lawsuit, including for violations of the 1st Amendment.
Nevertheless, federal courts regularly dismiss civil rights lawsuits on "Younger abstention" grounds, a judge-created doctrine that claims to restrict jurisdiction of federal court by requiring to first litigate the issue in state court, even if the action was not pending in court at the start of the federal litigation - but was strategically brought in state courts after the federal litigation began.
State courts then studiously avoid constitutional issues, if brought in front of them, at the trial and appellate levels, and it is practically impossible (if the case is not of national importance) to get to the U.S. Supreme Court, if a civil rights plaintiffs "mere" 1st Amendment rights were violated in a single case.
When state courts decide any constitutional issues in litigation which was - or "could have been" - brought before state courts, and usually such constitutional issues are decided without analysis by ignoring the issues or slapping the party and attorney for the party who brought the issues with "frivolous" sanctions for "meritless" litigation, without any analysis or reasoning.
Then, the civil rights plaintiffs tries to go back to the federal court - and meets the double-wall of "no chilling effect" (because the plaintiff cannot plead the chilling effect since he/she already tried to raise the issue somewhere in a state court) and the "Rooker-Feldman" bar, a judicially created bar to federal jurisdiction in civil rights cases where the court is claiming that the state court plaintiff is simply trying to use federal courts as state appellate courts - which is not allowed by statute.
So, between being kicked out of court on a Younger abstention issue if the 1st Amendment issue is brought before it is brought in state court, and the "tradition" of ignoring of constitutional issues by state courts, and then the "Rooker-Feldman" and "no chilling effect" dismissals by the federal district courts, and the "fast track" 3-judge-panel rubber-stamping of whatever the federal district courts say on federal appeals, and the selective blindness of the U.S. Supreme Court to most civil rights petitions for a writ of certiorari - the chilling effect can never be proven by a civil rights plaintiff.
I found one instance though when a federal appellate court found this test invented by the U.S. Supreme Court - "if you file a lawsuit for violation of your 1st Amendment rights - you prove you could file a lawsuit, therefore you did not have the chilling effect and you cannot then prove the 1st Amendment violation" - as circular logic and - gasp! - refused to follow it in a prisoner civil rights litigation case.
Good for the Ningth circuit. Bad for the rest of the country where the "chilling test" meet Younger abstention and the Rooker-Feldman doctrine is still the court-invented rule.
Tuesday, June 23, 2015
NYS OCA denies what the Delaware County Supreme Court Clerk says in a published audio recording to cover up misconduct of Judge Kevin Dowd and of court personnel at Judge Dowd's direction
Yesterday I received a letter from the New York State Court Administration (NYS COA).
NYS COA, without coming from New York City to Delhi, addressed on Monday June 22, 2015 my letter to Delaware County Supreme Court Clerk sent on Friday, June 19, 2015.
I published over this past weekend the audio recordings of my conversations with Delaware County Supreme Court clerk Kelly Sanfilippo as to denial of post-trial access to trial exhibits (while the trial was held illegally in my absence, during my legitimate documented medical leave), and after my access to the trial exhibits was blocked by extortion of the Harlem Law Office (recording also published) and refusal of Judge Dowd to follow court rules and to direct filing of the marked pleadings with the court 3 days before trial, for my review.
Refusal to compel the Harlem Law Office to follow the court rules and to file all marked pleadings, by the way, had to come not from judge Dowd, but from Judge Dowd's law clerk acting as judge while Judge Dowd was on vacation in Virginia (of which I was similarly not notified), see my blog posts here and here.
In the letter from NYS COA, attorney Shawn Kerby told me that Kelly Sanfilippo never had custody of the trial exhibits, but the Delaware County Clerk Sharon O'Dell had.
Yet, in the audio recording I published earlier, Kelly Sanfilippo admits to having custody of trial exhibits, that trial exhibits were at the time of the recording in HER office, never left HER office after trial, that Kelly Sanfilippo was arranging (before Judge Dowd stopped it) for my review of those trial exhibits under supervision of HER office's personnel.
Somehow, that evidence did not bother Shawn Kerby. Shawn Kerby is a staunch participant in NYS COA cover-ups of judicial misconduct by blocking my access to other evidence of judicial misconduct in 2010, 2011 and 2014 (videotapes of ex parte communications of judges in 2011 and 2014 and of orders to detain me in the courthouse for no reason in 2010):
Eugene Peckham
Carl Becker
Mary Rita Connerton - in 2010
James Tormey
Carl Becker - in 2011
Christopher Cahill - in 2014
In his present letter, Shawn Kerby also claimed that nobody ever denied me access to the trial exhibits. Not on May 22, 2015 (contrary to the audio tape), not on June 19, 2015 (contrary to the audio tape).
It is clear on the audiotapes that access to trial exhibits was denied to me on May 22, 2015 and June 19, 2015, by Kelly Sanfilippo's office, when Kelly Sanfilippo and not Sharon O'Dell (Delaware County Clerk) had custody of the trial exhibits, and at the direct oral order of Judge Dowd, while the judge refused to reduce his oral order to writing, trying to prevent my appeal of that order this way.
Since the records were ALLEGEDLY (because there is no trace of trial exhibits anywhere, there is no list of them in the trial transcript either) certified records from the Delaware County Clerk's office - at least exhibits 1-239, 265-270 admitted by Judge Dowd in bulk without looking what they are, whether they were certified, how they are relevant to the trial and whether they were even from the Mokay case - certified records of Delaware County Clerk should have been filed pre-trial with the court by Delaware County Clerk to preserve authenticity of certification, and should have remained post-trial with the court at all times.
Yet, now both Kelly Sanfilippo and Shawn Kerby "explain" to me that the trial exhibits that I was never allowed to see and that were never properly identified, marked and catalogued by the court or court stenographer, will return post-trial "to the party who submitted them", thus preventing me from presenting them to the appellate court - because, under the "peculiar" circumstances of this case, nobody can know for sure whether exhibits, if presented to the appellate court, will be the same as submitted to the trial court.
Judge Dowd outdid himself - he not only conducted an illegal ex parte trial in the absence of a counsel on medical leave, not only lied to the jury pool about it, not only granted all that plaintiffs'
attorneys asked (while plaintiffs themselves did not show up for trial), but also screwed up the record royally and prevented access of defense counsel to the record before or after trial and is in the process of disposing of the record, so that to leave the appellate court in the dark as to what was in those "certified records" admitted in bulk that Judge Dowd "thoroughly reviewed" and relied upon in his decision.
Well, we will see how this saga will develop with the New York State Commission of Judicial Conduct, the feds and the appellate courts.
Stay tuned.
NYS COA, without coming from New York City to Delhi, addressed on Monday June 22, 2015 my letter to Delaware County Supreme Court Clerk sent on Friday, June 19, 2015.
I published over this past weekend the audio recordings of my conversations with Delaware County Supreme Court clerk Kelly Sanfilippo as to denial of post-trial access to trial exhibits (while the trial was held illegally in my absence, during my legitimate documented medical leave), and after my access to the trial exhibits was blocked by extortion of the Harlem Law Office (recording also published) and refusal of Judge Dowd to follow court rules and to direct filing of the marked pleadings with the court 3 days before trial, for my review.
Refusal to compel the Harlem Law Office to follow the court rules and to file all marked pleadings, by the way, had to come not from judge Dowd, but from Judge Dowd's law clerk acting as judge while Judge Dowd was on vacation in Virginia (of which I was similarly not notified), see my blog posts here and here.
In the letter from NYS COA, attorney Shawn Kerby told me that Kelly Sanfilippo never had custody of the trial exhibits, but the Delaware County Clerk Sharon O'Dell had.
Yet, in the audio recording I published earlier, Kelly Sanfilippo admits to having custody of trial exhibits, that trial exhibits were at the time of the recording in HER office, never left HER office after trial, that Kelly Sanfilippo was arranging (before Judge Dowd stopped it) for my review of those trial exhibits under supervision of HER office's personnel.
Somehow, that evidence did not bother Shawn Kerby. Shawn Kerby is a staunch participant in NYS COA cover-ups of judicial misconduct by blocking my access to other evidence of judicial misconduct in 2010, 2011 and 2014 (videotapes of ex parte communications of judges in 2011 and 2014 and of orders to detain me in the courthouse for no reason in 2010):
Eugene Peckham
Carl Becker
Mary Rita Connerton - in 2010
James Tormey
Carl Becker - in 2011
Christopher Cahill - in 2014
In his present letter, Shawn Kerby also claimed that nobody ever denied me access to the trial exhibits. Not on May 22, 2015 (contrary to the audio tape), not on June 19, 2015 (contrary to the audio tape).
It is clear on the audiotapes that access to trial exhibits was denied to me on May 22, 2015 and June 19, 2015, by Kelly Sanfilippo's office, when Kelly Sanfilippo and not Sharon O'Dell (Delaware County Clerk) had custody of the trial exhibits, and at the direct oral order of Judge Dowd, while the judge refused to reduce his oral order to writing, trying to prevent my appeal of that order this way.
Since the records were ALLEGEDLY (because there is no trace of trial exhibits anywhere, there is no list of them in the trial transcript either) certified records from the Delaware County Clerk's office - at least exhibits 1-239, 265-270 admitted by Judge Dowd in bulk without looking what they are, whether they were certified, how they are relevant to the trial and whether they were even from the Mokay case - certified records of Delaware County Clerk should have been filed pre-trial with the court by Delaware County Clerk to preserve authenticity of certification, and should have remained post-trial with the court at all times.
Yet, now both Kelly Sanfilippo and Shawn Kerby "explain" to me that the trial exhibits that I was never allowed to see and that were never properly identified, marked and catalogued by the court or court stenographer, will return post-trial "to the party who submitted them", thus preventing me from presenting them to the appellate court - because, under the "peculiar" circumstances of this case, nobody can know for sure whether exhibits, if presented to the appellate court, will be the same as submitted to the trial court.
Judge Dowd outdid himself - he not only conducted an illegal ex parte trial in the absence of a counsel on medical leave, not only lied to the jury pool about it, not only granted all that plaintiffs'
attorneys asked (while plaintiffs themselves did not show up for trial), but also screwed up the record royally and prevented access of defense counsel to the record before or after trial and is in the process of disposing of the record, so that to leave the appellate court in the dark as to what was in those "certified records" admitted in bulk that Judge Dowd "thoroughly reviewed" and relied upon in his decision.
Well, we will see how this saga will develop with the New York State Commission of Judicial Conduct, the feds and the appellate courts.
Stay tuned.
Monday, June 22, 2015
Judge Kevin Dowd was supposed to be at work on April 6, 2015, but he wasn't. The court administration refuses to say, why. It's time to demand judges to submit timesheets and justifications for no-shows at work.
The transcript of the ex parte trial of the Mokay case that I have been describing for the last several days contains statements of Judge Kevin Dowd made on April 7, 2015, as follows:
So, on April 7, 2015 Judge Dowd claimed that he was in Virginia for the last 10 days before April 7, 2015, which means, he was in Virginia since March 27, 2015.
Vacation schedule received from the New York State Court administration through a FOIL request (judge's chambers ignored my request for the same) for the year 2015 are:
On Monday, April 6, 2015, on behalf of Judge Dowd, his law clerk Claudette Newman issued an order indicating to me that the judge does not recognize (without seeing me) my lawful medical leave issued by my physician after he saw me in person - even though the judge did not see me and did not see my injury.
Moreover, Claudette Newman threatened me in an e-mail that "the court" will use "legal means to secure my attendance", whatever that meant, if I dare not to appear (read: if I dare to be bedridden and unable to appear because of the pain caused by my diagnosed injury - which I was the next day).
Yet, the next day, on Tuesday, April 7, 2015, Judge Dowd makes a statement that he communicated with his law clerk about my medical excuse from work filed "on Monday" while driving from Virginia.
Since I provided the medical excuse from my physician to the court on Monday, April 6, 2015, the Monday the judge is talking about is Monday, April 6, 2015.
According to the judge's vacation schedule, the judge was supposed to be at work on that day, since his vacation ended on April 3, 2015.
Yet, the judge, according to his admission on record, was driving from Virginia on that day and his law clerk was issuing orders instead of him while he was still vacationing in Virginia.
I FOILed the NYS Court Administration for records justifying Judge Dowd's absence on April 6, 2015.
First, the representative of the NYS Court Administration tried to give me a run-around claiming that records I was asking for are not eligible for FOIL.
After I explained to that representative (name is Shawn Kerby) that I am absolutely entitle to receive through FOIL copies of public record showing why a public servant was not at work on a certain day - whether they are time-sheets, vacation records or any other records explaining the absence - Shawn Kerby relented and told me that NYS Court Administration has NO records on file showing why Judge Dowd was still vacationing in Virginia when he was supposed to be in office and while his law clerk Claudette Newman was issuing decisions through e-mail on his behalf.
This behavior of a judge raise many questions.
One of them I am asking as a taxpayer: this judge claimed in another transcript that I read, in another case, that he is being paid "meager bucks" to do his judicial job.
The meager bucks of Kevin Dowd reported by seethroughny.net in 2014 were:
base salary - $174,000
received - $172,300
$174,000 per year translates (with all holdays and vacations) in approximately 252 working days, at $690.48 per day.
The judge certainly cannot be "deemed" in office when he is miles away from office coming from a vacation.
The judge was not in office in the afternoon of April 6, 2015, by his own admission on record in the Mokay case.
The court administration does not have records explaining why Judge Dowd was not in office on April 6, 2015.
Thus, Judge Dowd did not show up to work on April 6, 2015 without a legitimate reason.
His law clerk, without ever explaining to me that the judge is actually on a vacation and cannot issue any orders, issued a lot of orders while the judge was on a vacation, including the rejection of my medical leave and the threat of "securing my attendance" at trial, even though I was injured and in pain on April 6, 2015.
As a taxpayer, I demand that Judge Dowd is not paid for April 6, 2015.
As a taxpayer, a citizen and a member of the public, I demand that judges submit timesheets and, if they do not show up at work, they must submit an explanation, available to the public through FOIL requests, as to why a certain judge, a public servant, paid nearly $200,000, allows himself not to show up at work without a proper justification.
So, on April 7, 2015 Judge Dowd claimed that he was in Virginia for the last 10 days before April 7, 2015, which means, he was in Virginia since March 27, 2015.
Vacation schedule received from the New York State Court administration through a FOIL request (judge's chambers ignored my request for the same) for the year 2015 are:
On Monday, April 6, 2015, on behalf of Judge Dowd, his law clerk Claudette Newman issued an order indicating to me that the judge does not recognize (without seeing me) my lawful medical leave issued by my physician after he saw me in person - even though the judge did not see me and did not see my injury.
Moreover, Claudette Newman threatened me in an e-mail that "the court" will use "legal means to secure my attendance", whatever that meant, if I dare not to appear (read: if I dare to be bedridden and unable to appear because of the pain caused by my diagnosed injury - which I was the next day).
Yet, the next day, on Tuesday, April 7, 2015, Judge Dowd makes a statement that he communicated with his law clerk about my medical excuse from work filed "on Monday" while driving from Virginia.
Since I provided the medical excuse from my physician to the court on Monday, April 6, 2015, the Monday the judge is talking about is Monday, April 6, 2015.
According to the judge's vacation schedule, the judge was supposed to be at work on that day, since his vacation ended on April 3, 2015.
Yet, the judge, according to his admission on record, was driving from Virginia on that day and his law clerk was issuing orders instead of him while he was still vacationing in Virginia.
I FOILed the NYS Court Administration for records justifying Judge Dowd's absence on April 6, 2015.
First, the representative of the NYS Court Administration tried to give me a run-around claiming that records I was asking for are not eligible for FOIL.
After I explained to that representative (name is Shawn Kerby) that I am absolutely entitle to receive through FOIL copies of public record showing why a public servant was not at work on a certain day - whether they are time-sheets, vacation records or any other records explaining the absence - Shawn Kerby relented and told me that NYS Court Administration has NO records on file showing why Judge Dowd was still vacationing in Virginia when he was supposed to be in office and while his law clerk Claudette Newman was issuing decisions through e-mail on his behalf.
This behavior of a judge raise many questions.
One of them I am asking as a taxpayer: this judge claimed in another transcript that I read, in another case, that he is being paid "meager bucks" to do his judicial job.
The meager bucks of Kevin Dowd reported by seethroughny.net in 2014 were:
base salary - $174,000
received - $172,300
$174,000 per year translates (with all holdays and vacations) in approximately 252 working days, at $690.48 per day.
The judge certainly cannot be "deemed" in office when he is miles away from office coming from a vacation.
The judge was not in office in the afternoon of April 6, 2015, by his own admission on record in the Mokay case.
The court administration does not have records explaining why Judge Dowd was not in office on April 6, 2015.
Thus, Judge Dowd did not show up to work on April 6, 2015 without a legitimate reason.
His law clerk, without ever explaining to me that the judge is actually on a vacation and cannot issue any orders, issued a lot of orders while the judge was on a vacation, including the rejection of my medical leave and the threat of "securing my attendance" at trial, even though I was injured and in pain on April 6, 2015.
As a taxpayer, I demand that Judge Dowd is not paid for April 6, 2015.
As a taxpayer, a citizen and a member of the public, I demand that judges submit timesheets and, if they do not show up at work, they must submit an explanation, available to the public through FOIL requests, as to why a certain judge, a public servant, paid nearly $200,000, allows himself not to show up at work without a proper justification.
Sunday, June 21, 2015
Trial rules of Kevin Dowd: defaults of parties are declared and parties' rights are determined based on how well-liked by the judge and the judge's law clerk are the parties' attorneys
Plaintiffs did not show up to the Mokay trial on damages - held ex parte by Judge Kevin Dowd on April 7, 2015 during my documented medical leave due to back injury (I was the attorney of record fo the defendant Frederick Neroni).
That much is demonstrated by the front page of the transcript of that trial not showing appearances of the Plaintiffs.
Nor are appearances of plaintiffs mentioned anywhere in the transcript.
Nor did any of the plaintiffs testify in the trial that they, indeed, suffered any damages and acknowledged fees of their attorney Richard Harlem.
It is interesting to mention that Judge Dowd had the court personnel "scan the building" and reported on record that, after the court building was "scanned", and no traces of not only me, but defendant Mr. Neroni, was found, Mr. Neroni was found in default and as having waived his rights to a jury trial.
Defendant Connie Mokay was not present, but Judge Dowd did not declare that she waived her rights.
Instead, Judge Dowd accepted her attorney's explanation Michael Getman's explanation that Connie Mokay, one of the "trio" of tortfeasors, the person who urged her husband, decedent Andrew Mokay, not to transfer properties to his children at the threat that she will leave him (something the decedent did not disclose to his then attorney Frederick Neroni), now had interests that are "more aligned with the plaintiffs".
Judge Dowd called Connie Mokay's attorney "Mike" and let "Mike" go from the trial, accepting his explanations that Connie Mokay, even though "formally" she is still a defendant in the action - to prevent me or Mr. Neroni from raising objections - she is in reality only an "interested party", a "spectator", and her interests are "more aligned with the plaintiffs".
Of course, the "alignment" argument was complete gibberish and made no sense legally, but Judge Dowd accepted it anyway.
Connie Mokay who never showed up to the trial on damages, and who admitted to liability in an affidavit admittedly drafted by Richard Harlem, attorney for the plaintiffs, was excused from trial without pronouncement of default.
Her attorney "Mike" was also excused by Judge Dowd.
Yet, Defendant Fred Neroni whose attorney was on a legitimate medical leave because of a back injury, was not excused, his absence was noted as a waiver of his rights to a jury trial, the case proceeded in the absence of ANY PARTIES, including the plaintiffs, and Judge Dowd rubber-stamped all requests made by Plaintiffs son-of-a-judge attorney Richard Harlem.
Therefore, yet another trial rule of Judge Kevin Dowd - weasel yourself into the favor of the judge, or even better, into the good graces of judge's law clerk Claudette Newman whom the judge defends to the end of all law, ethics and propriety, no matter what she does.
Do it by flaunting and stressing either your birth (Richard Harlem is a son of a judge, and kept for years a mention of the fact that Robert Harlem is a retired judge on his law firm's letterhead), or by other political connections (Richard Harlem is landlord to NYS Senator James Seward's district office in Oneonta, NY), or by affiliation with judicial qualifications committees (James Hartmann, trial attorney for the plaintiffs, is married to Nancy Deming, member of judicial qualifications committee in the Appellate Division Third Department), or by your job for the government and your bloodline (Michael Getman is the Chief Assistant District Attorney of Otsego County AND a son of a judge).
If, on the other hand, you happen to be a litigant or attorney who complained about Judge Dowd to the NYS Commission for Judicial Conduct (I did, many times) or sued him (my husband did) - then gloves are off and all laws are off, and you are a "disgusting human being" (Judge Dowd's words toward a pro se litigant who dared file a motion to recuse Judge Dowd due to conflict of interest created by his law clerk by having the pro se party's children in her house which counts as an ex parte communication).
Remember this "default" rule when entering "Judge Dowd's" courtroom - and especially if you have a misfortune of getting sick on a trial date.
That much is demonstrated by the front page of the transcript of that trial not showing appearances of the Plaintiffs.
Nor are appearances of plaintiffs mentioned anywhere in the transcript.
Nor did any of the plaintiffs testify in the trial that they, indeed, suffered any damages and acknowledged fees of their attorney Richard Harlem.
It is interesting to mention that Judge Dowd had the court personnel "scan the building" and reported on record that, after the court building was "scanned", and no traces of not only me, but defendant Mr. Neroni, was found, Mr. Neroni was found in default and as having waived his rights to a jury trial.
Defendant Connie Mokay was not present, but Judge Dowd did not declare that she waived her rights.
Instead, Judge Dowd accepted her attorney's explanation Michael Getman's explanation that Connie Mokay, one of the "trio" of tortfeasors, the person who urged her husband, decedent Andrew Mokay, not to transfer properties to his children at the threat that she will leave him (something the decedent did not disclose to his then attorney Frederick Neroni), now had interests that are "more aligned with the plaintiffs".
Judge Dowd called Connie Mokay's attorney "Mike" and let "Mike" go from the trial, accepting his explanations that Connie Mokay, even though "formally" she is still a defendant in the action - to prevent me or Mr. Neroni from raising objections - she is in reality only an "interested party", a "spectator", and her interests are "more aligned with the plaintiffs".
Of course, the "alignment" argument was complete gibberish and made no sense legally, but Judge Dowd accepted it anyway.
Connie Mokay who never showed up to the trial on damages, and who admitted to liability in an affidavit admittedly drafted by Richard Harlem, attorney for the plaintiffs, was excused from trial without pronouncement of default.
Her attorney "Mike" was also excused by Judge Dowd.
Yet, Defendant Fred Neroni whose attorney was on a legitimate medical leave because of a back injury, was not excused, his absence was noted as a waiver of his rights to a jury trial, the case proceeded in the absence of ANY PARTIES, including the plaintiffs, and Judge Dowd rubber-stamped all requests made by Plaintiffs son-of-a-judge attorney Richard Harlem.
Therefore, yet another trial rule of Judge Kevin Dowd - weasel yourself into the favor of the judge, or even better, into the good graces of judge's law clerk Claudette Newman whom the judge defends to the end of all law, ethics and propriety, no matter what she does.
Do it by flaunting and stressing either your birth (Richard Harlem is a son of a judge, and kept for years a mention of the fact that Robert Harlem is a retired judge on his law firm's letterhead), or by other political connections (Richard Harlem is landlord to NYS Senator James Seward's district office in Oneonta, NY), or by affiliation with judicial qualifications committees (James Hartmann, trial attorney for the plaintiffs, is married to Nancy Deming, member of judicial qualifications committee in the Appellate Division Third Department), or by your job for the government and your bloodline (Michael Getman is the Chief Assistant District Attorney of Otsego County AND a son of a judge).
If, on the other hand, you happen to be a litigant or attorney who complained about Judge Dowd to the NYS Commission for Judicial Conduct (I did, many times) or sued him (my husband did) - then gloves are off and all laws are off, and you are a "disgusting human being" (Judge Dowd's words toward a pro se litigant who dared file a motion to recuse Judge Dowd due to conflict of interest created by his law clerk by having the pro se party's children in her house which counts as an ex parte communication).
Remember this "default" rule when entering "Judge Dowd's" courtroom - and especially if you have a misfortune of getting sick on a trial date.
Trial rules of Judge Kevin Dowd: jurisdiction on damages may be never-ending, for the right kind of attorney
As I stated in my previous post, Judge Kevin Dowd creates his own law and his own rules in "his own courtroom", disregarding existing rules and existing law as "brouhaha" (his words in the transcript of the Mokay trial about my legal argument asking the court to follow the rules).
One of the most interesting trial rules of Judge Kevin Dowd is that Kevin Dowd considers a trial on damages in a civil case to be a continuous thing.
In the ex parte trial on damages and in his decision as to that ex parte trial, Kevin Dowd stated the following:
(1) Judge Kevin Dowd ended the trial on April 7, 2015, but allowed post-trial evidentiary submissions, accepted post-trial evidentiary submissions on May 8, 2015 and relied upon them in his trial decision;
(2) Judge Kevin Dowd gave the plaintiffs "leave" for continued jurisdiction of the court for future "applications" for more damages, after the trial on damages has ended;
(3) Judge Kevin Dowd gave the plaintiffs "leave" to apply for damages not in another trial, but through a motion.
None of these "rules" comply with existing New York state law that requires that the issue of damages be tried, and tried in one single trial.
Judge Dowd apparently is involved in legal innovation - he created the concept of unending jurisdiction of the court on the issue of money damages where the only damages claimed are legal fees of politically connected attorneys, such as the son of a judge Richard Harlem (also the landlord to New York Senator James Seward).
So, litigants and counsel, beware of this rule - especially if you feel and have evidence, like I do, that Judge Dowd dislikes you or your client. In my case, Judge Dowd "dislikes" me to the point of not believing medical diagnosis of my injury, holding a trial despite of medical leave documents submitted to the court, in my presence as attorney of record and attempting to punish me for not appearing at trial while injured and on a legitimate medical leave.
Publication of trial rules of Judge Kevin Dowd will continue and may in the future be published in a separate book.
Stay tuned.
One of the most interesting trial rules of Judge Kevin Dowd is that Kevin Dowd considers a trial on damages in a civil case to be a continuous thing.
In the ex parte trial on damages and in his decision as to that ex parte trial, Kevin Dowd stated the following:
(1) Judge Kevin Dowd ended the trial on April 7, 2015, but allowed post-trial evidentiary submissions, accepted post-trial evidentiary submissions on May 8, 2015 and relied upon them in his trial decision;
(2) Judge Kevin Dowd gave the plaintiffs "leave" for continued jurisdiction of the court for future "applications" for more damages, after the trial on damages has ended;
(3) Judge Kevin Dowd gave the plaintiffs "leave" to apply for damages not in another trial, but through a motion.
None of these "rules" comply with existing New York state law that requires that the issue of damages be tried, and tried in one single trial.
Judge Dowd apparently is involved in legal innovation - he created the concept of unending jurisdiction of the court on the issue of money damages where the only damages claimed are legal fees of politically connected attorneys, such as the son of a judge Richard Harlem (also the landlord to New York Senator James Seward).
So, litigants and counsel, beware of this rule - especially if you feel and have evidence, like I do, that Judge Dowd dislikes you or your client. In my case, Judge Dowd "dislikes" me to the point of not believing medical diagnosis of my injury, holding a trial despite of medical leave documents submitted to the court, in my presence as attorney of record and attempting to punish me for not appearing at trial while injured and on a legitimate medical leave.
Publication of trial rules of Judge Kevin Dowd will continue and may in the future be published in a separate book.
Stay tuned.
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