Is the "right" of the government to hire dumb brutes for the police force, affirmed as a matter of constitutional law in the 2nd Circuit 15 years ago, responsible for the widespread wave of police brutality across the country?

I've recently blogged about the little scheme in Delaware County where prosecutors, police and probation officers are paid out of conviction fines through a "STOP DWI" program.

As much as it was pounded to the public as "savings" for taxpayers, it is a blatant constitutional violation that is geared to increase numbers of convictions without any regard to their legitimacy or constitutionality.

I've also blogged about incompetence and corruption in the Delaware County Sheriff's Department where police officer Derek Bowie who has been engaged in a vehicular assault upon a resident, a middle-aged disabled woman, and did that clearly in retaliation for her stance against misconduct in the government on the County level and in local courts.

I questioned more than once how can a police officer, or other public officials involved, be so DUMB as to not realize that their corruptness is quite transparent through their actions?

Well, I now found the root of the question.

Not only police officers in Delaware County are corrupt, incompetent and dumb, but the federal constitutional law in that jurisdiction allows the local government to sieve out smart applicants for police officer positions as a matter of intentional discrimination.

The U.S. Court of Appeals for the 2nd Circuit, 15 years ago (!), found that discrimination against applicants for the police force with a high IQ level.

Here is that brain-dead decision, in full glory.

Now, this is a galore for criminal defense attorneys... This "law" gives defense attorneys legitimate grounds to seek IQ scores of police officers in application for the position.  And, if that is not a discrimination against an applicant, that is clearly a constitutional issue for members of the public who are stopped, investigated, prosecuted and put in jail by police officers picked out BECAUSE THEY ARE DUMB!

Wow.

Names of the "winner" judges of the 2nd Circuit who produced this masterpiece back in 2000 are:

• The Hon. Jon O. Newman - still on the court and was even chief judge of the 2nd Circuit court from 1993 to 1997.  Judge Newman got his bachelor's degree in 1953, which puts his age at 69 at the time of his "IQ discrimination is constitutional" decision in 2000, and at 84 years of age now.
• The Hon. Rosemary S. Pooler, Circuit Judges - is still on the court, in an active status.  Judge Pooler recevied her bachelor's degree in 1959.  That puts her at about 63 years of age when she made the decision in the "IQ case", 15 years ago, and 78 years old now.
• The Hon. Lloyd D. George,* District Judge - is still on the Nevada District Court.  Since judge George reportedly received his bachelor's degree in 1955, and bachelors degrees are received usually at the age of 22, his date of birth is approximately 1933, 67 years of age or more at the time he made the "IQ case" decision, and at 83 years of age now.

* Honorable Lloyd D. George of the United States District Court for the District of Nevada, sitting by designation.

The "trio" above affirmed, in a summary unpublished opinion, the decision of the Hon. Peter C. Dorsey, Senior United States District Judge - who died in 2012 at the age of 80.

Think about it!

All of these seniors making all of these CLEARLY DUMB decisions - while proclaiming the government's right to discriminate against the intelligent people in matters of employment!

How many lawyers argued, with a straight face, that intentionally putting in a ceiling blocking intelligent individuals from being employed on the police force is constitutional and is not violation of equal protection rights!

4 (four!) judges agreed!

Agreed that the government has a "state interest" to intentionally "dumb down" police force that is armed and is supposed to be able to make split-second judgment calls about life or death of citizens, your life or death.

After this decision, why NOT expect police brutality after that? 

Why NOT expect dumb actions of police, like chasing shoplifters at ungodly speeds, that take away lives of innocent bystanders (2,400 innocent bystanders were reportedly killed in the US in a 35-year span as a result of high-speed police chases alone)?

Why NOT expect police to use their weapons, their TASERS, their vehicles, as tools of abuse of those they simply do not like?

Don't you think that this decision, and decisions like that may be responsible for the wide spread and ever spreading police brutality - because employing dumb brutes on the police force is the POLICY of the government?  And NOT employing intelligent people is also the POLICY of the government - to prevent job turnover!

I think the same test is actually applied to judgeships and attorney jobs for the government.  

I remember how a retired judge from the Appellate Division 3rd Department (he is a local of Walton, NY, an ardent supporter of Carl Becker), Judge Carl Mugglin, told me, without having any record in front of him, and without having any basis to "rule" at an appellate settlement conference - "you will dig a hole for your clients, Mrs. Neroni, with your intellectual efforts".

I was stunned, my female client was stunned, but obviously, with all my legal education, I did not know about the case, it was not taught in our Civil Rights litigation class in law school, my law school professors did not impress on me that being smart may prevent you from getting a job in the government!

The last question - if judges would apply their own "discrimination on the IQ basis is constitutional" test to themselves, would they have passed the test?  

I bet they would.

The NYS Court Administration adamantly refuses to answer my question pertaining to waivers of filing fees in O'Sullivan v Bowie

I blogged recently about fee waivers provided by courts to people who are in no way adjudicated as poor persons, who are sued in their individual capacity, not as officials of governmental entities and where the only reason for waivers appears to be bias of the court and favors given to litigants associated with the government or litigants whose opponents are critics of judicial misconduct.

I filed a FOIL request today with the New York State Court Administration seeking information about:

(1) policies as to fee waivers, and
(2) records pertaining to all fees paid or waived in the case of Barbara O'Sullivan v Derek Bowie (a police officer), in his individual capacity, for vehicular assault and battery, Delaware County Index No. 2014-911.

Here is my entire exchange with the NYS Court Administration pertaining to that FOIL request:

Let's note that NYS Court Administration claims that:

1) I am not seeking records subject to FOIL, because records I am seeking are allegedly "judicial records";
2) that I am asking NYS Court Administration, under the guise of FOIL, to conduct legal research which NYS Court Administration does not have to do for me; and
3) that denial of my FOIL request is not even appealable.

First of all, administering fees for the handling of a case is not strictly a judicial duty, and thus, any records pertaining to such fees are not judicial records taking such records from the reach of FOIL requirements.

Second, NYS Court Administration sends me to the do my own legal research and to consult the law and court rules on court websites.  

Well, I did, actually before I made the FOIL request.

As an attorney, I know the law.

As a diligent attorney, I double-checked the law and the rules before FOILing.

Here is the fee schedule of New York courts.

New York City Civil Court is even more specific than the general Unified New York Court system, it provides statutory authority for every filing fee it requires litigants to pay.

Here is the official explanation by the court system as to which cases require the Request for Judicial Intervention fee of $95 and which cases do not require such a fee.

Barbara O'Sullivan v Derek Bowie's case definitely required payment of an RJI fee.  I was advised that such a fee was waived to Derek Bowie by Delaware County Clerk's office - and, as a taxpayer, attorney and litigant, I want to know  - on what legal grounds was the waiver given?

Here is the statutory authority for filing fees in New York State Supreme Court:

• a court order adjudicating a litigant as a poor person, CPLR 1101.  
• waivers to public entities (the government) or public officials sued in their official capacity - I did not find authority for that, but do not deny a possibility that such a basis exists, on the rationale that when a public entity defends in a lawsuit, it spends taxpayer money, and thus fee waiver would be appropriate.

Here is the Unified Court System's rule/policy pertaining to fee waivers for poor persons (only that ground).

The Mokay plaintiffs who were given a waiver by Judge Kevin Dowd of a trial note of issue fee, were not adjudicated as poor persons, nor did they apply for such a fee waiver on that ground, or at all.

Derek Bowie, in O'Sullivan v. Bowie, did not apply for a fee waiver either, is not an indigent person, being a police officer on the payrol of Delaware County Sheriff's Department, and was sued in his individual capacity for misconduct, which does not trigger any waivers meant for the government.

That was the reason for my question - if all laws, rules and policies were not followed in these cases, what are the real policies for fee waivers in New York?

The New York State Court Administration answered me that it does not owe me - or any other litigant, citizen and taxpayer of the State of New York - an answer to that question.

Yet, since every paying (or non-payment and waiver where payment must be made) is followed by a paper trail, I have made yet another FOIL request, now to the Delaware County Treasurer, for copies of records pertaining to filing fees put into the court account.

I have also FOILed the New York State Comptroller for the filing fees collected from the case Barbara O'Sullivan v Derek Bowie.  

I will hold my breath for the answers.

The government clearly does not like being caught red-handed in misconduct, specifically, in favoritism in favor of a police officer, even if he is sued for vehicular assault by his victim, and in retaliation against the critic of judicial misconduct, even in such petty issues such as charging her, but not the perpetrator of a vehicular assault against her, filing fees in civil litigation.

When a court system brazenly gives gifts of fee waivers to governmental officials, sued in their individual capacities for committing egregious misconduct against citizens - that demonstrates more than anything else that courts in New York are not neutral, unbiased and fair, as they are supposed to be, and are not governed by the rule of law, as they are supposed to be.

And that's why, when you can, as a voter, exclude from the bench people who you know will only contribute to the ongoing misconduct in the court system, it is absolutely necessary to do that.

Because that's your only chance to improve the judicial system - apart from the lengthy and mostly unsuccessful process of petitioning the intentionally deaf and blind government.

Let's FOIL the NYS Court Administration for its policies regarding waivers of filing fees

By law, Delaware County Clerk is the court clerk accepting filings for the Delaware County and Supreme Courts.

By law, filings for assigning a judge (RJI number) and filing a motion require, respectively, a $95.00 and a $45.00 filing fee.

No judge will be assigned unless you pay $95.00 with the RJI (Request For Judicial Intervention).

The Delaware County Clerk will not accept from you a notice of motion unless you pay a filing fee of $45.

That is, not unless you are an employee of Delaware County sued in his individual capacity in a civil action for misconduct.

Filing fees in court may be waived only to government entities.

Yet, in Delaware County there were two incidents when filing fees were waived to private parties.

First, Judge Kevin Dowd waived a note of issue fee to son-of-a-judge attorney Richard Harlem in the case Mokay v. Mokay (against my husband who sued Judge Dowd).

There is no basis in the law for such a waiver, but that's what Judge Dowd did anyway.

Second, Delaware County Clerk's office, with or without permission from Judge John Lambert, upon information and belief, waived all fees (RJI and motion fees) to police officer Derek Bowie sued in his individual capacity for intentional misconduct, vehicular assault and battery, Delaware County Index No. 2014-911, O'Sullivan v Bowie.

Derek Bowie is represented by attorney Frank Miller, an attorney who some time ago conducted "hearings" for Delaware County regarding misconduct of yet another police officer, without disclosing to the public that he is not acting as a neutral investigator (as most of the people who came to testify in front of him or talk to him thought), but an attorney hired by Delaware County's insurance company to protect the County from liability.

When I pointed that out to Mr. Miller, he tried to intimidate me not to go any further with raising the issues of his conflicts of interest, because Mr. Miller was concerned for his allegedly perfect "Martindale" score.

Mr. Miller's office seems very familiar with the local courts, to the point of obtaining waivers that their client, police officer sued in his individual capacity, was not entitled to.

To me, improper waiver of a filing fee by the County Clerk to the County employee sued for misconduct in individual capacity is nothing less than an improper gift showing corruption of the court personnel and bias against the police officer's opponent requiring the change of venue and disqualification of the judge, if he ok'd such a "waiver" - not to mention a misconduct investigation against all participants in such a "waiver" that gives the public the appearance that courts' favors in New York can be bought.

In both cases the recipients of the benefits are favored attorneys and in both cases the opponents of the favored recipients of the benefits (fee waivers) are critics of judicial misconduct.

It is a pattern, isn't it?

For that reason, and to clear up the issue - which litigants are and which litigants are not entitled to fee waivers in New York courts in civil actions - I encourage the public to file Freedom of Information requests with the NYS Court Administration to ask the administration to provide, within 5 business days, as required by law:

1) records of financial documents documenting payments of filing fees in O'Sullivan v Bowie, Delaware County Index No. 2014-911;

2) policies of the NYS Court Administration regarding waivers of filing fees, and eligibility for such waivers.

At least, NYS Court Administration should then scratch its collective head to answer the question.

Let's hold our collective breaths to see what they have to say.

Ascension to the bench through intimidation? Turf wars in Delaware County continue...

I recently blogged about the turf wars in Delaware County, and also about the perverse financial incentives that the Delaware County put in place for its prosecutors, police and probation officers - with the blessing of the two attorneys, public officials, who are currently running for judicial positions, one in replacement of the outgoing (better say "outrunning") Judge Becker, and another - to fill the new position that the Delaware County begged and received from New York State, even though judicial caseload in Delaware County, upon my information, goes down, not up.

I also blogged about the incidents of intimidation where my friends and their families started to get approached by certain individuals with certain hints and threats to drop lawsuits against a Delaware County policeman, stop blogging "with Tatiana Neroni", whatever that means, OR ELSE.

I have been advised that the intimidation is getting worse, and now, as I understand, whoever is trying to unleash this intimidation campaign is completely losing it and is urging police officers in Delaware County not to do business with my clients, my friends and my friends' and my clients' family members, even though there are not many alternatives to such "doing business" and even though police officers were "doing business" with the businesses in question not for years, but for decades.

I understand that there are more bears than people in Delaware County and that every vote counts.

I understand that people in Delaware County are, on the one hand, usually apathetic to vote, but, on the other hand, during last elections voters showed an interestingly high support for the judicial candidate Gary Rosa, in fact, so high, that at first Gary Rosa was declared a winner of the 2012 judicial elections - before Judge Becker-dominated Election Board recounted the ballots and "eked out a victory".

I understand that Delaware County provides a lot of jobs, and a lot of jobs to relatives and even clans, and that it is easy to pressure a Delaware County employee to "volunteer" for a campaign of a certain judicial candidate or to vote the way the particular judicial candidate with ties to or high-ranking position in Delaware County would want.

But, when a judicial candidate, or individuals acting on his behalf, are so desperate to put that judicial candidate on the bench that they start to getting sloppy, to advertise shady deals as "savings to taxpayers" while in reality they demonstrate that they do not give a rat's ass as to the well-being of the taxpayers or saving their money, it is becoming just a little bit too obvious to the various intimidation incidents as a mere coincidence.

When police officers are encouraged not to purchase certain items and services from Delhi businesses where they were purchasing such items and services for - not years - decades, and when the alternative is to go miles out of Delhi and cost taxpayers additional money, that is not savings, that is putting the paw of the abusers of their governmental position directly in taxpayers' pocket and making taxpayers pay for the fight for the bench and for intimidation campaign against critics of governmental misconduct.

If that is happening before Kirkwood and Northrup saddled those benches, think what will happen after.

The campaign of intimidation unleashed against my friends, clients and family members of friends and clients that happened right after I criticized the two judicial candidates in my blog, with documentary evidence of their misconduct, happened too close in time not to have at least an appearance of a causal relationship.

Moreover, the old rule "who benefits" point to the judicial candidates and Delaware County officials, including the one sued for a vehicular manslaughter and his uncle who works for the DA's office that prosecutes the victim of that assault instead of the perpetrator.

You will not get justice if County Attorney Kirkwood and District Attorney Northrup become judges.

You will simply get more corruption than you have now, and now you have too much already.

Vote against Kirkwood and Northrup.

Address the "eligibility committees" to revoke their eligibility status as judges.

Their ascension to the bench will be a continuing disaster for Delaware County.

Tomorrow will be the last day on the bench for Carl Becker. People of Delaware County, New York, let's celebrate.

Tomorrow Delaware County will or should celebrate the last day on the bench of Judge Carl Becker, the judge well known for the following:

1) coming to the bench in 2012 by defrauding the voters and demeaning his opponent and, as far as I know, even by buying food for voters in the hope that that will encourage the "correct" vote; I always doubted validity of the "recount vote" that put Becker on the bench instead of his opponent Rosa, when I saw with my own eyes how young black voters were misdirected at the polls to go to the Board of Elections in Delhi for ballots while such ballots had to be available at the booths.  

The other reason to doubt validity of the vote was loyalty of the Delaware County Board of Elections to Becker to the point that the Board of Elections officials filed with the Delaware County Clerk a false certification of Becker's 2002 elections when I raised the issue that Becker is not a legitimately elected judge in a motion in 2011 (Becker presided over reviewing the motion, without authority since the motion concerned his own legitimacy as a judge, caused the Board of Elections to file the false certification of his 2002 elections and then sanctioned me for bringing it in one case and agreed that it is non-frivolous in another case - without changing his previous decision that it was frivolous).  

Why the certification filed in 2011 of Becker's elections in 2002 was false, at least in my legal opinion? 

Because, according to the answer of the Delaware County Board of Elections to my FOIL request pertaining to documents from Becker's elections, all original documents, including petitions and ballots, from the 2002 elections were destroyed within 2 years of the elections, in 2004.  It is unlawful to certify anything without underlying original documents.  

Yet, the Delaware County Board of Elections did that for Becker who represented the County for 27 years and kept close ties, to the point of ex parte communications with County officials during litigation, for the duration of his stay on the bench.

2) habitually concealing his disqualifying conflicts of interest derived from his previous work for 27 years as an attorney for the Delaware County Department of Social Services;

3) habitually putting the interests of Delaware County, its public officials and employees, the judge's friends, above the law;

4) habitually engaging in vindictive conduct against litigants, their family members and their attorneys if they raised issues of misconduct of Delaware County public officials or employees, including Judge Becker himself;

5) habitually engaging in ex parte communications pertaining to court proceedings with social services, police, school officials and favored attorneys and suppressing such evidence by retaliation against challengers;

6) being habitually rude to the "chosen" litigants and counsel, especially women;

7) being habitually and adamantly incompetent and advancing his own incompetence as the law of Delaware County;

8) using his official position for personal gain or advantage - before and after he came to the bench.

That's quite a legacy.

Tomorrow, on his last day of self-service and service to his buddies that lasted since 2002 (a devil's dozen of years), good riddance and let's not put Becker' equivalents - Kirkwood and Northrup - on the bench.

Voters, please, remember that once you put Kirkwood and Northrup on the bench, nobody will ever take them down, nobody will discipline them, the NYS Commission for Judicial Conduct will be tossing your complaints about their misconduct (if they are engaged in gross misconduct now, it will be "out of character" for them not to do that when they gain more power).

So, while you see Porter Kirkwood's bulky figure going around the streets of Delhi and smiling to residents to catch their eyeballs and support for the future elections - please, remember.  What represents Kirkwood and Northrup are their deeds.

And their deeds, as the recently announced "buy the prosecutor" deal when the new prosecutorial position is paid, with the blessing of both Northrup and Kirkwood, out of convictions, making prosecutors practically bought by the probation and the police (who are also, by the way, financed out of conviction fines, providing an incentive for the police to stop you, residents of Delaware County, unlawfully, and to collude with Northrup as a prosecutor to provide false statement to the court - to secure convictions and funds for the prosecutor).

And these ugly deeds, ladies and gentlemen, cannot be covered by any smiley faces.

Priorities of the State of Georgia: less legal literacy for the poor, less literacy for the young poor troublemakers

I've just posted a blog about priorities of the State of Georgia to prosecute people promoting legal literacy rather than dealing with poverty issues in the State.

And, today there appeared more information on priorities of the State of Georgia in the choice - to educate or not to educate its population.

The answer is - not to educate, especially the young poor troublemakers, but to separate them, segregate them and commit them to squalid life conditions, substandard education and the life of poverty.

At that background, the continuing lawsuit against Mr. Malamud for trying to educate the poor litigants of the State of Georgia looks especially bad.  It spells out the policy of the State of Georgia - government created and enforced ignorance of the poor and social control.

Not democracy.

 

When taxpayers "own the law", why would the State of Georgia sue Carl Malamud for giving the owner access to the owner's own property?

The State of Georgia has filed a lawsuit against a civil rights organization run by a non-attorney Carl Malamud, who for many years has actively advocated for making laws known to the public and who has actually made many laws and regulations available for public access.

So why sue a person who is engaged in such a laudable activity that is so beneficial to the public?

The State of Georgia asserts that it contracted the legal research and legal publications giant LexisNexis to make annotations for State of Georgia's official statutes.

The State of Georgia, in a twisted logic (in my opinion), claimed to the federal court that Mr. Malamud, in making the annotations that belong to the State of Georgia through its contract with LexisNexis (and thus belong to the people of the State of Georgia) infringed upon State of Georgia's "copyright" in those annotations by - guess what - making those annotations to the official states available to - gasp! - the people of the State of Georgia.

Of course, by publishing such annotations on the Internet, Mr. Malamud's organization has made those annotations available to a wider readership than just to the people of the State of Georgia, the true owners of the annotations, but if certain documents are in the public domain of a certain state, by law they are in the public domain, period - even if an alien spy organization wants to read the annotated official code of the State of Georgia for their own evil purposes.

The officials of the State of Georgia who filed the lawsuit (and their attorneys) obviously have the "chicken and egg" problem.  They somehow assert that while the State of Georgia contracted annotations, and thus owns a "copyright"  to those annotations to its own official statutes, then the People of the State of Georgia cannot have free access to those annotations - acquired by their representatives at the expenses of their taxes.

And, by the same twisted logic, a person or organization who provides access to annotations to official law paid for by the state officials with taxpayers' money, is infringing upon the copyright of the State in those annotations.

There is also a clear standing problem - if the State of Georgia gave exclusive rights to sell the "annotated code" to LexisNexis (and the question is - why, on what legal grounds was that exclusive rights given), it is LexisNexis that need to be suing to enforce its exclusive contractual rights.

I am not the only attorney who raises the standing issue.  I encourage my readers to read the excellent blog by attorney Max Kennerly with a thorough analysis of concerning issues in the lawsuit.

Attorney Kennerly does ask the question as to why it is the State of Georgia who is suing, even though it is the LexisNexis' contractual rights which are allegedly violated.

The answer may be - LexisNexis, because it created the annotation by contract with a public entity, does not have copyright in that material and cannot sue for copyright infringement.

But, on the other hand, the public entity has no basis for a lawsuit (in my legal opinion) for copyright infringement based on the fact that somebody gave access to the People of the State of Georgia to annotations to official law that was procured by People of the State of Georgia (through its government, its legal representatives), with public money, because such annotations belong to the People of the State of Georgia, and giving access to the owner to his own property is not copyright infringement.

I hope that the federal court will toss this case.  

It deserves its place in the waste basket.

And I hope that people of the State of Georgia demand to fire everybody who was involved in filing and prosecution of that case and wasting taxpayer's money.

There are many unmet needs in the State of Georgia where the money spent on this nonsensical litigation could be used and actually help people such as, just as one point out of many, childhood poverty of 27%.

I guess, pursuing Mr. Malamud's organization for making public to the People of the State of Georgia information about the law belonging to the People of the State of Georgia that People of the State of Georgia are presumed to know for purposes of civil or criminal liability was a higher priority for the State of Georgia in terms of use of resources so limited that the hourly wage in the State of Georgia remains $5.15, percentage of families that work but are still low income is 36.6%, poverty rate in the state is 19% (every 5th resident of the State of Georgia is poor!), extreme poverty level is the staggering 8.8% (nearly 1 in 10 people are extremely poor!), 40% of single parent families with children are poor...

Mr. Malamud's organization and its efforts to HELP the poor people who obviously cannot afford an attorney, but whose tax dollars are used against them by the government, to at least know the law that is used against them is a bigger problem for the government of the State of Georgia than all the above.

Which makes even more laudable Mr. Malamud's efforts to make laws accessible to the poor people who own those laws, despite lawsuits against him by the establishment to prosecute him for those honorable efforts.

I must add that nobody need free online access to the annotated official statutes of the State of Georgia more than the poor people in the State of Georgia, those who cannot afford to buy those same annotations from LexisNexis.

Nobody outside of the State of Georgia, save for scholars, really needs to know the statutes of the State of Georgia.

Attorneys practicing in the State of Georgia, know the statutes because they their legal training and because they use those statutes on a daily basis and paying for those annotations is their business expense usually passed to the clients.

So, the State of Georgia, by suing Carl Malamud's organization for providing public access to annotations to the official statutes of the State of Georgia, insist on keeping the poor people of the State of Georgia, in the dark about their own laws.

And such efforts are not laudable, honorable or even legitimate for a democratic state government.