Readers are encouraged to send in stories about "pre-judges" of the State of New York

I've written on this blog about all sorts of pre-judgments of many cases pertaining to myself and my family members, for our stance against judicial misconduct in New York State and federal courts.

The most recent blog post was about Judge Kevin Dowd who states before he began the ex parte trial that it is all clear to him that the plaintiffs (who did not even care to come to the trial) are definitely entitled to damages, before any proof was submitted to the court - and that it is a shame that the case has gotten "so far" and has not settled long time ago.

I've got several responses from readers with stories of prejudgment of their own.

One of the readers suggested a term "pre-judge".

After all, a judge who is pre-judging the case instead of judging the case, is not a judge, but is, indeed, a pre-judge.

I believe the shoe fits, and confer the dishonorary title of prejudge to Judge Kevin Dowd.

If you want your own stories about pre-judges in your life, please, write to me with documents showing the prejudgment.

Something clicked somewhere with Mokay trial exhibits - once yet another complaint against Judge Kevin Dowd was filed

I received today an "index" (list" of trial exhibits for the ex parte Mokay trial.

I received the list 47 minutes (!) after I filed an additional complaint against Judge Dowd with the NYS Commission for Judicial Conduct for blocking me from reviewing the exhibits or from seeing even the list of exhibits admitted at trial and influencing the stenographer not to give me the index, and for Judge Dowd's attempt to punish me for being injured and sick and on a legitimate medical leave on the day of trial, and to award against me "costs" of calling jurors to the courthouse.

Here are the scans of my e-mails.

I've sent my complaint by e-mail to the NYS Commission for Judicial Conduct at 3:10 pm:

Brenda Friedel wrote to me with the "index" of trial exhibits at 3:57 pm, in 47 minutes:

The stenographer apologized in an e-mail and said that it was (allegedly) entirely her fault that she "forgot" to include the "index" of exhibits into the trial transcript.

At the same time, the Delaware County Supreme Court Clerk Kelly Sanfilippo and her assistant clearly indicated in recorded telephone conversations that Judge Dowd's chambers directed them not to release the list of exhibits to me.

Moreover, the interesting part is that the index is not made a part of the transcript, has separate numeration from numeration in the transcript, and does not have a signature of the stenographer.

For the stenographer who, by the report of seethroughny.net, was earning $105,000.00 a year back in 2008 (and I do not believe that her salary went down in the 7 years since, more likely it went up), such a number of errors in one transcript can hardly be called coincidental.

I understand that Ms. Friedel's professional reputation was simply sacrificed to protect the judge.

Yet, telephone recording speak for themselves - the judge and his chambers gave a direct order to the Delaware County Supreme Court Clerk's office (that was not supposed to even have custody of the record - judging by the letter from the NYS Court Administration), but nevertheless had such custody (judging by the direct recorded admission of the Supreme Court clerk Kelly Sanfilippo) to deny me access not only to trial exhibits, but even to the list of trial exhibits from the ex parte Mokay trial.

Apparently, Judge Dowd is becoming an embarrassment to the New York judicial system.

It is interesting to know - will he be dealt with the same way Carl Becker was?

Will Judge Dowd suddenly discover an urge to spend time with his family and that his judicial career interferes with such long-craved communication?

That would be not a second too soon.

The top secret "index", the list of exhibits that Judge Dowd prohibited the Delaware County Supreme Court Clerk to release to the attorney of record for the defendant, before and after Judge Dowd made a decision against the defendant Fred Neroni in reliance on exhibits in that top secret list, will be published in one of my next blogposts, with an analysis.

Stay tuned.

Trial rules of Judge Kevin Dowd: you settle - or else

During the ex parte Mokay trial Judge Kevin Dowd has stated, twice, that the case should not have gone "that far" and should have settled long ago.

As you may notice, it is page 5 of the transcript, before any evidence was in, before the trial began.

The case was simply pre-judged by Judge Dowd.  In a litigation that goes on for 8 years, because the defendant keeps trying to have courts follow the law, the defendant should have settled long time ago.  Since he did not - the judge will make sure such a defendant will suffer.

But, coercing a litigant into a settlement, expressing on record the court's opinion, before a bench trial, that the plaintiffs (who did not come to court to attend the trial) are entitled to damages, before ANY proof was in, is not only pre-judging a case in violation of Defendant's due process of law, but also gross judicial misconduct.

Does anybody in the NYS Commission for Judicial Conduct care for that?

Trial rules of Judge Kevin Dowd: leave those pesky time-lines and counting skills to 1st graders when another judge's backside must be covered

Below is the table with the list of parties in the Mokay litigation, where there were 5 parties (children of the decedent) between June 2007 and March 2008, and 6 parties (children of the decedent + the decedent/ his Estate from March 2008 to present time).
 

Time period	Names of parties in the Mokay action	Number of parties	Were damages awarded for the period of June 2007 to March 2008 by Judge Dowd in the June 12, 2015 decision?
June 2007 to March 2008	1.       Andrew Mokay 2.       Daniel Mokay 3.       David Mokay 4.       Christine Reed 5.       Patricia Knapp	5 parties	Yes, to 6 plaintiffs
March 2008 to present time	1.       Andrew Mokay 2.       Daniel Mokay 3.       David Mokay 4.       Christine Reed 5.       Patricia Knapp 6.       Estate of Andrew Mokay (father)	6 parties	Yes, to all plaintiffs, including the Estate, for period of June 2007 to beyond the trial date of April 7, 2015

As is evident from the table, the presiding Judge Dowd awarded, as damages, to 6 parties, including the Estate, attorney fees of 5 parties for the period of June 2007 to March 2008, when the 6th party was not a party to the litigation - and awarded those damages to the Estate as treble damages (times three). 

One does not need a full elementary, middle or high school education, a college or a law school education to be able to count on 10 fingers 5 versus 6.

If the 6th party was not there in the Mokay action, it was not represented by Harlem & Jervis there, and it could not claim that it generated legal fees from June 2007 to March 2008 in the Mokay action, while not being a party there - or to ask the court to deem those fees damages of the Estate under an unknown legal theory, and to treble those damages.

In fact, such a claim is an open fraud upon the court, where attorney Richard Harlem who testified at the ex parte trial in the Mokay case, claimed, on behalf of the Estate, that the Estate has somehow managed to generate legal fees in the Mokay case for the period of time when it was not a party in the Mokay case.

Did Judge Dowd punish Richard Harlem for frivolous conduct?

Not at all.

Judge Dowd apologized to Richard Harlem for inconvenience caused when Judge Dowd asked Richard Harlem to make post-trial submissions as to which of the attorney fees Richard Harlem claims as damages - and Richard Harlem claimed the fees for ALL plaintiffs (including the Estate, not a party in the Mokay case from June 2007 to March 2008) for the period including June 2007 to March 2008.

For Judge Dowd, the trial itself was an unnecessary technicality, he knew how he (or rather, his law clerk Claudette Newman) will rule before the trial even started. 

And that technicality was a necessity to cover up misconduct of outgoing judge Carl F. Becker who already GAVE Richard Harlem as the Estate's attorney, through Surrogate's Court, over $48,000.00 for representation of all plaintiffs in the Mokay action - and that was in July of 2011, 4 years before the ex parte Mokay trial.
Look how Judge Dowd rules as to how "plaintiffs" (all of them) are entitled to treble-attorney fees/ damages.

This is the list of plaintiffs, the caption of the decision that arose out of the ex parte trial of April 7, 2015.  The Estate is listed as a party:

This is the excerpt from the decision of January 22, 2015 of the Appellate Division 3rd Department positioning the decedent/Estate as one of the tortfeasors (which means that the Estate must be a defendant in the action, may not be represented by the same attorneys as plaintiffs, and, if it is so represented, attorneys for the plaintiffs forfeited, as a matter of law, all legal fees for the conflicted representation):

Here is the description in Judge Dowd's decision of June 12, 2015 as to how plaintiffs (all of them, including the Estate), suffered damages, even though Dowd recites alleged harm caused only to the children of the decedent were harmed and "had to commence litigation" to redress the harm (omitting that the decedent participated in causing harm and that there is no such cause of action in interference with prospective right of inheritance):

As to "title passed", I will need a separate blog post (to follow) to explain that the record of the Mokay action is completely devoid of any shred, scintilla or speck of evidence that the deeds were delivered - and thus title did not pass, no matter what a CROWD of judges may say.

But, for purposes of this blog post - Judge Dowd's attention to detail are below the kindergarten level.

He simply does not follow the evidence or even the list of parties and the timelines in front of him.

 

Judge Dowd notes that "children of the decedent" "had to commence this action" (which was not true, since the deed was never delivered and the title did not pass, a mere declaration of the surrogate in a case where decedent's children were not represented and incurred no legal fees, was enough that the title is still in the Estate, eliminating the need for the 8-year Mokay litigation).

Yet, somehow the Estate can claim damages for the same period of time alongside with the decedent's children - why, for what reason, nobody knows, and the judge definitely does not care.

So, not only Richard Harlem claimed - and got awarded - attorneys' fees for the same period of time from two separate courts, which definitely constitutes unjust enrichment, but he claimed it on behalf of a party who was not represented by Richard Harlem in the Mokay action for the period claimed - and that is fraud, successful, on two courts.

Moreover, Carl Becker, after he knowingly condoned that fraud and awarded over $48,000 to Richard Harlem without any verifying documents requried by the Surrogate's Court rules, assigned himself to the Mokay action in the Supreme Court and shot down any challenges to his fraudulent ruling.

Now, Judge Dowd joined the pitch and covered up the out-running Carl Becker by, once again, awarding Richard Harlem the same legal fees, awarding them on behalf of a party, the Estate who did not participate in the action at the time the fees were allegedly generated - and Judge Dowd had the audacity and disregard to the law to treble those fees.

So, now Richard Harlem was awarded not treble, but quadruple attorney fees on behalf of Estate for the period when Estate was not even a party in litigation - and that is a true record of judicial misconduct for both Judge Becker and Judge Dowd, acting, no doubt, in concert.

The trial rule of both of these judges - what is in the record does not matter.

Timelines making certain claims of damages impossible, do not matter.

Timelines and lists of parties making certain claims fraudulent do not matter.

What matters is to please a politically connected attorney and to hurt those pesky attorneys and parties, the "disgusting human beings", the "very dangerous persons" (Judge Dowd's words, on record, to another litigant who dared to file a motion to recuse against Judge Dowd - and where Judge Dowd did in fact recuse).

One does not need a high school, college or law school education to be able to discern that a legal fee generated by 5 parties cannot be claimed as damages by the later-joined 6th party in litigation - unless the 5 parties SUE the 6th party and claim those legal fees against that party.

Yet, all 6 parties are peacefully represented by one son of a judge Richard Harlem and his law firm Harlem & Jervis.

Apparently, Judge Dowd simply does not care, what the timelines of the case are, what the lists and numbers and names of parties represented by influential attorneys are, whether certain damages could or could not be claimed by the Estate, whether those damages could or could not be trebled, and whether those same attorney fees were or were not already awarded and paid to these same attorneys, on behalf of that same party.

For Judge Dowd, the law is his word - however freakish, fraudulent or absurd it appears.

I do not expect anything less from a judge who was ranting about a urinal built in his honor at a child custody/visitation proceedings, as Judge Dowd did. 

Yet, litigants and attorneys appearing in the Supreme Court, are entitled to deal with the law and with judges who have elementary competence and integrity.  Judge Dowd, judging by his decisions, have no competence or integrity whatsoever, and that is a big problem, which New York State Court Administration needs to deal with.

And, if a 1st grader would have done a better job in calculating the number of parties in the action for purposes of award of damages and for making timelines - and verifying which parties were ACTUALLY PARTIES IN LITIGATION for a certain perdiod of time, before awarding to them as damages, attorneys fees FOR OTHER PARTIES over that period of time - maybe, we need to put a 1st grader instead of Judge Dowd on that bench?

Will look cute, and will make much more sense.

Shenanigans with trial exhibits in New York courts - a rule and policy of discrimination?

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.

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:

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.