A certiorari petition to the U.S. Supreme Court challenges the 6th Circuit's decision to uphold occupational licensees' 5th Amendment rights in disciplinary proceedings

An interesting petition for a writ of certiorari has been filed and is pending before the U.S. Supreme Court about occupational licensing.

The appeal is by the Michigan Gaming Commission and it is challenging the last year's decision of the U.S. Court of Appeals reversing the district court's grant of summary judgment to the Gaming Commission, the text of the case is available here.

The two questions before the court are:

2) are occupational licensees entitled to 5th Amendment protection in disciplinary proceedings?  The U.S. Court of Appeals for the 6th Circuit said they are:

The case is out of the state of Michigan.

What is not presented in the "questions presented" (no pun intended) of the petition for a writ of certiorari is that the 6th Circuit denied even qualified immunity (as a matter of law) to the Licensing (Gaming) Board, and remanded the case back for trial on the issue of immunity.

A strong brief in opposition of the petition has been filed by the occupational licensees - race drivers who lost their licenses (and jobs) because of their refusal to make self-incriminating statements in licensing disciplinary proceedings, which the 6th Circuit considered an unconstitutional action by the licensing board.



An amicus curiae brief from California Sheriffs' Association asks the U.S. Supreme Court to reverse the 6th Circuit's decision:

 So, what are the "disastrous consequences" to the interests of police as to 5th Amendment protection against compelled self-incrimination "during investigations"?

The position of the Sheriffs' Associations is that:

 
Or, in other words, the Sheriffs' Association want to be able to continue to compel self-incrimination in interrogations under SOME grounds - as long as they do not CRIMINALLY prosecute the individual from whom the self-incrimination was exacted by compulsion.

Yet, the Sheriffs' Association's "interest" in compelling testimony of PUBLIC EMPLOYEES (not of private occupational licensees) in administrative proceedings has nothing to do with occupational licensing, and, if the U.S. Supreme Court rejects the writ of certiorari or affirms the decision of the 6th Circuit, that will not create the problems the Sheriffs' Association are claiming will be created for them 

As much as I would like public employees to be disciplined for misconduct (that was, as I understand, the Sheriffs' Association's point), I would prefer it to be done following the U.S. Constitution, and without the use of compelled self-incrimination.

Because - if one of us can be compelled to incriminate oneself, and thus lose his or her job, it is applicable to anyone.

And that's just wrong - as the 6th Circuit, fortunately, has recognized in reversing the grant of summary judgment to the Michigan Gaming Board on 5th Amendment grounds.

It is an interesting case, I will cover how it will develop - and will run a separate blog on a separate issue regarding occupational licensing that the case raises.

Stay tuned.

 

Disbarment of Silver finally recognized (but not quite), Skelos remains listed as a licensed attorney with no record of public discipline

Even though Sheldon Silver and Dean Skelos were both convicted of felonies last year, they appear as attorneys with no record of public discipline.

I wrote about it repeatedly on this blog, see, for example, my blog in December 2015 and this recent blog in March of 2016.

Sheldon Silver's disbarment, as of the date of his conviction in November of 2015, was recognized by a New York appellate court yesterday, on March 29, 2016.

The court found grounds for similarity (for purposes of automatic disbarment as of the date of the conviction) between the federal conviction of Silver in November of 2015 and a New York State felony statute:

"A conviction of a federal felony does not trigger automatic disbarment unless the offense would constitute a felony under New York Penal Law (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16 [1st Dept 2009]). While the federal felony need not be a mirror image of the New York felony, the two crimes must be essentially similar (see Matter of Margiotta, 60 NY2d 147, 150 [1983]; Matter of Bardey, 133 AD3d 77 [1st Dept 2015]). Essential similarity in this case is established by comparing the language of the relevant state and felony statutes, as well as by examining past precedent with respect to the foreign felony at issue (Matter of Schoenecker, 107 AD3d 113 [1st Dept 2013).

A person is guilty of larceny by extortion under New York law when "he compels or induces another person to deliver such property...by means of instilling in him a fear that, if the property is not so delivered, the actor or another will...[u]se or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such a manner as to affect some person adversely" (Penal Law § 155.05[2][e][viii]). Under 18 USC § 1951(b)(2), extortion is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, [*2]violence, or fear, or under color of official right."

Yet, on the website of NYS Unified Court System, Silver is still listed today as a licensed attorney with no record of public discipline.

We will see what amount of time will take New York to reflect the court's decision on Silver's attorney registration website.

For "mere mortal" attorneys the NYS Unified Court system bends over backwards to reflect the decision about suspension or disbarment the day the decision is made.

Dean Skelos, former Majority Leader of the New York Senate, also convicted last year of felonies, similarly continues to be shown as a licensed attorney with no record of public discipline.

 

Somehow, old connections die hard?

Janet DiFiore ceremonial fraternity swearing-in gathering at taxpayers' expense, Part III. All public officials in NYS are now judges, and all state prosecutors are now favored pets of NYS Court of Appeals

I continue publishing my own transcript (with comments) of the swearing-in ceremony of NYS Court of Appeals Chief Judge Janet DiFiore of February 8, 2016 (Judge Eugene Pigott of the NYS Court of Appeals presiding).

The official transcript is available here.  

The official transcript is not very accurate, it does not make notes of laughter, applause and other interesting reactions and body language of people in the video, that's why I am making my own transcript - AND, most significantly, it does not reflect that Judge Pigott calls numerous public officials who are NOT judges - judges 

(like, for example, Judge Pigott calls NYS Attorney General Eric Schneiderman "Judge Schneiderman", at 7:50 and 8:02 on the video, calls NYS Solicitor General Barbara Underwood (Schneiderman's appellate attorney) "Judge Underwood", at 8:18-8:20 - the transcript replaced the word "judge" with something else each time Judge Pigott called these attorneys appearing in front of the court /and representing the court in civil rights cases in federal courts/ "judges").

I reflected in my transcript each instance of the Court of Appeals calling non-judicial officers "judges" and applauding to it.

JUDGE PIGOTT:

We left off in the transcript at 5:00 on the video, and now I continue the transcript from that point.

"We also have the Honorable Carmen Ciparick with us, Judge Ciparick (applause).  

==
(Comment:

Carmen Ciparick has long retired from the court and at the time of the ceremony, was a private attorney that works for a large New York City law firm Greenberg Taurig, LLP.  Look at the number of scandals and "controversies" the firm was involved in - with no attorneys disciplined, possibly, because they hire retired judges and other influential people and put money into the right kind of lobbying?

One of the firm's partners, by the way, is a referee on the NYS Judicial Conduct Commission - to keep judges in front of whom Greenberg Taurig litigates - in check.

Another way of connection to the courts in front of which the firm practices is to hire judges.  Like retired (in 2012) Judge, and now private attorney, Carmen Ciparick, who is also now a "Co-Chair, National Appellate Practice Group", and obviously has, through her personal connections and this "group", ex parte access to and influence upon judges in front of whom GT practices:

Attorney Ciparick (invited to the Court of Appeals) and recognized as one of the court's own, is handling appellate practice at her current employer Greenberg Taurig, and is obviously appearing in the lower appellate courts and in the NYS Court of Appeals.

Under the NYS Code of Judicial Conduct, Pigott's public recognition of Ciparick as a "judge" at the time when she was a private APPELLATE attorney appearing in New York State Appellate Courts was highly inappropriate.

End of comment, transcript resumes

==

And last... not last, but not least, we have two more... but the Honorable Robert Smith is with us today, Judge Smith (applause).

And last, but, certainly, not least, our latest or last Chief Judge, the Honorable Judge Lippman is with us today, Judge Lippman (DiFiore leans into Pigott and prompts him to introduce a "judge Traficanti").

Lippman was not at that time a judge, but a private attorney for Latham & Watkins LLP, as of January 7, 2016:

Moreover, at Latham Watkins LLP, "Chief Judge Lipman advises clients on appellate practice nationawide", and thus his appearance at the swearing-in ceremony and hearty welcome in the Court of Appeals as still a "judge" is highly inappropriate and constitutes endorsement and a sign of favoritism of his law firm and his clients over his opponents.

Joe! Good to see you (as Judge Traficanti stands up). 

The dust hasn't settled on the Lippman era yet. Jonathan hasn't been without us for very long. 

I did want to mention a couple things. There were a number of people who I had talked to who had applied for the chief judgeship and one of them had said to me, "When you think about succeeding Judith Kaye and Jonathan Lippman, you're talking about the gold standard."  And there are a lot of people who said "I just don't think I'm in that class", and I think they were right.  (Laughter starts).

It is very difficult (VERY LOUD laughter, 6:17-6:23)... it is very difficult to picture someone succeeding Judith Kaye and
Jonathan Lippman, but we have a candidate, thanks to the Governor.  (I continue to highlight Judge Pigott's flattery in pink).

I want to say a word about Judith Kaye, also, with respect to the commission on nomination.  

You know, to get to this court, you have to apply to the Commission.  Commission does great work... They go through however many applications there are, they narrow it down, they interview an exhaustive number of people, and then they supply the Governor with a list that can be no fewer than four and no more than seven.

And when this last list came out, it was applauded all over the state (shakes his head) for the quality of the people that were on it that gave the Governor the opportunity to pick from a real gold standard bunch, and (a crooked smile) we all think he's done a pretty good job.

But, it was Judith Kaye who ran that Commission for a number of years. and was so successful (Andrew Cuomo makes grimaces as if he is bored, 

DiFiore is not listening, communicates by her eyes and nodding and raising her eyebrows 7:18-7:20 with somebody in the audience) 

in giving a number of Governors the people who ultimately ended up on the Court.

So, another Kudo to Judge Kaye and the great work she did.

And in addition to those I've introduced, we have a number of colleagues from the judiciary, from the Appellate Divisions, and from the trial courts that have joined us today and without... before your hands get too tired (makes a clapping jesture) without remembering each one of those - thank you all so much for coming.

Now, we have some state officials beside, and one of them is our great Attorney General the Honorable Eric Schneiderman, Judge Schneiderman (everybody applauds, including the entire Court of Appeals),  

As a point of personal - I don't want to say "pride", but - Judge Schneiderman has the Solicitor General Barbara Underwood who we see ALL THE TIME, who is simply outstanding as an Attorney General.

If you ever notice, we are live on the Internet, and we kind of sit a little bit closer to bench when Barbara Underwood is arguing.  I know she is here today - Judge Underwood (applause).

I don't know if this gonna happen this time, but it seems like every time the Comptroller of the State of New York is introduced, he gets more applause than anybody else (laughter - separate loud laughter of DiFiore).

But, I want to introduce our State Comptroller, Tom DiNapoli.  Judge DiNapoli. 8:35 on the video (redacted on the official transcript, p. 4) (applause).

(DiNapoli, as part of New York State executive branch of the government, is often or may be a party that is appearing in front of New York courts - inviting him and recognizing him as a "judge", especially with an indication that the presiding judge Pigott is on a first name basis with DiNapoli, was highly inappropriate - T.N.).

And also with us today is the Chair of the Assembly of the Judiciary Committee the Honorable Helene Weinstein, Judge Weinstein (applause).  I call her "judge" (that is unredacted in the transcript).

We should have a chair with your name on it, Helene, and I don't think we've ever had an occasion here when you haven't been here, and you are such a great member of the Assembly, and almost a member of our court.  Thank you so much for all that you've done for us ... over the years.

We also have a number of people from law enforcement here.  

We have, among others, the Acting District Attorney from Westchester County could James McCarthy stand and be recognized?

He is still smiling, that's a good sign (Pigott and Difiore shift in their seats, smile and turn towards one another as McCarthy is introduced - T.N.).

And we also have Thomas Zugibe, president of the DA's Association of the State of New York.  

Tom, could you stand and be recognized? Way in the back (Pigott is raising his hand, enthusiastically pointing at the end of the courtroom).  

Another point of personal pride, Mr. Zugibe, you know, we have we had that escape up at Dannemora in Clinton County 
and a lot of us watched that with great interest and concern.  I thought that the District Attorney of Clinton County, Andrew Wylie, did such an outstanding job. 

Every time I saw him or anytime he was on explaining things, I was so proud to be a lawyer, so proud to be part of the judiciary, so proud of how our law enforcement worked, that it was just a great tribute to all of the DA's, I think, all 62 of the district attorneys in this state. Thank you, all of you district attorneys who are here, for your great work. You can applaud them. (Applauds himself) 

=====================================


Here is a description of a lawsuit naming the celebrated Thomas Zugibe, sued for prosecutorial misconduct in 2009 - prosecutorial immunity could have resulted in dismissal of the lawsuit, but that should not have affected attorney discipline.  No attorney discipline though, but an invitation to the swearing-in ceremony of the NYS Chief Judge and personal recognition in a live-streamed Internet session.

Here is a list of lawsuits against Thomas Zugibe in federal court (he is listed there as "dft" - defendant, or "pty" in appellate cases).

A distinguished career.

And there is no "record of public discipline", even though EVERY single civil rights case provides enough basis to investigate and prosecute the prosecutor - and prosecutorial immunity is allowed only because (at least this is the pretext) there is attorney discipline available for prosecutors.

Once again, here is the list of lawsuits against Zugibe - and no discipline. And admiration of NYS Court of Appeals Judge Pigott.

Criminal defendants in Rockland County, you are screwed, the NYS Court of Appeals clearly sent a signal to courts below who to favor.

Another object of Judge Pigott's admiration, Clinton County prosecutor Andrew Wylie, was also recently sued, and escaped liability only because of "absolute prosecutorial immunity" which exists only on condition that there is, as an alternative, prosecutorial discipline - which does not exist in New York.

Here is the list of lawsuits against Andrew Wylie off Pacer.gov:

Criminal defendants in Clinton County, you are screwed, too.  With a judge from the top state court expressing personal admiration for Clinton County prosecutor Andrew W

So.

Another five minutes of the transcript.

Another five minutes of brown-nosing, praising attorneys for the government that appear in front of the court (no criminal defense attorneys were mentioned as invited there, or "recognized" by the Court of Appeals), calling NYS Attorney General and Solicitor General as "Judges", calling the State Comptroller a "Judge" (which was redacted out of the official transcript).

But, the most disgusting part is the open praise to ALL 62 District Attorneys in the State for "doing a great job".

Remember, the District Attorneys are the main source of judges in the State of New York and in this country.

Also, the district attorneys, including those in New York, are increasingly accused of knowingly drumming up wrongful convictions.  

That issue was raised in the press.

That issue was raised at the recent public hearings for the Statewide Commission on Attorney Discipline.

It was mentioned in that hearing (I wrote about it on this blog before) that the DA's Association "descended like paratroopers" upon NYS Senator DeFrancisco and tried to block legislation that is seeking to make DA's accountable for misconduct (while the existing attorney disciplinary system does has an unwritten policy not to prosecute prosecutors).

Here is the letter of the state DA's Association to the New York State Legislature asking to leave prosecutorial discipline as it is now (as non-existing).

Those are the "honorables" celebrated and openly recognized, with admiration by the New York State Court of Appeals, in a live-streamed court session.

Criminal defendants of the State of New York, you are screwed.

And, at the background of wrongful convictions, rampant and unaddressed prosecutorial misconduct, one of the judges of the top state court congratulates all prosecutors in the State of New York for the "job well done" and only prosecutors get to be invited to the swearing-in ceremony of the new Chief Judge?

And that's for the court that hears criminal cases all the time, with those same prosecutors appearing in front of the Court?

Not too crooked.

I will continue with my "annotated transcript" of DiFiore's swearing-in ceremony. 

Stay tuned.

Ellen Coccoma, jack of all things - without time sheets, of course

I just wrote a blog about "no time sheets for Ellen Coccoma, the Otsego County (NY) County Attorney working side jobs and handling legal reviews of FOIL requests for her own time sheets.

And, as part of the blog, I provided a scan of Ellen Coccoma's biography on the website of the law firm Hinman, Howard & Kattel where she toils as "special counsel" during her taxpayer-paid time, and without filing time-sheets (or while destroying them after they are requested through FOIL).

Here it is, again:

First, where does the busy County Attorney, who had no time to answer that there are NO time sheets on file with the county for 6 MONTHS - have time for all those other "services" and jobs?

And, for a County Attorney, isn't it a conflict of interest to sit on the "Village of Cooperstown Zoning Board of Appeals"?  Where ordinances from the Village and decisions of the Board can come into direct conflict with the County?

Does a counsel for suspects to be charged by the grand jury get to control the administration of oaths of the grand jurors and the choice of the prosecutor presenting the case?

In an interesting turn of events, the South Carolina Attorney general "fired" the special prosecutor that he assigned, after his own recusal, to investigate corruption in the General Assembly of South Carolina.

South Carolina Attorney General clearly is disqualified from investigating or prosecuting such a case - becase SC AG represents the General Assembly and each and every one of its members (if they are sued for constitutional violations resulting from their criminal acts).

For that reason, SC AG has no authority to "fire" a special prosecutor assigned to that case.

But, here it is, that happened.

And, the courageous special prosecutor actually took SC AG to court to verify his authority to fire him.

The special prosecutor reportedly wrote in his petition to the S.C. Supreme Court that the South Carolina Attorney General (the counsel for the subjects of investigation, members and/or employees of the state General Assembly) "has instructed Jim Parks, the clerk of the state grand jury, to refuse to administer the oath of office to special prosecutors so they can use the state grand jury".

Not too crooked, is it?

Imagine if a criminal defense attorney for a suspect is allowed to influence the grand jury proceedings in such a way?

That criminal defense attorney would be immediately disbarred and criminally prosecuted.

I will hold my breath whether that will happen to the S.C. A.G.

I will continue to cover this case.

Let's see what the Supreme Court of South Carolina will decide.

Stay tuned.

John Muehl attempts to strike at the Neronis - stupidly so, but that's John Muehl...

Here is a letter my husband and I received yesterday in the mail from the Otsego County District attorney John Muehl - along with the letter from the Otsego County FOIL appeals officer who, under the threat of a lawsuit, had to disclose that Otsego County does not have on file time sheets of its County Attorney Ellen Coccoma who also has a side job with a large Binghamton law firm Hinman, Howard & Kattel and works for that firm (including court appearances for private clients) during her taxpayer-paid time.

I am sure John Muehl talked to Coccoma and was "inspired" by her in his little blunder of March 17, 2016:

Actually, I already asked John Muehl to provide to me his order of assignment for me to be sure if he is assigned to the case of burglary and attempted arson in our home that Delaware County authorities would not investigate since September of 2013.

Muehl provided an order of assignment which showed he was assigned to another case - of a burglary by the same individual, but at our neighbor's home, one year earlier, here is my blog about it.

The letter of March 17, 2016 is copied to the newly-minted Delaware County Judge Gary Rosa who, after pledges to voters of being fair, impartial and following the law, quickly became the 2nd (third?) Judge Becker.

Rosa recently signed a letter order denying my request to remove Muehl as special prosecutor from the burglary and attempted arson case in our Delhi home, as not being an impartial prosecutor and jeopardizing the investigation by his bias against me and my family, and employing Michael Getman, an attorney who my husband is suing since 2009 for fraud upon the court.

Obviously, Rosa signed that order "keeping" John Muehl on the case to which he was never assigned, obviously without reading the order of assignment of John Muehl that I received later 

(I did not receive yet the order of assignment when I made the request to take Muehl off the case, so my request is moot - since Muehl was never assigned to my case, as the order of assignment showed, in the first place).

Recently, Rosa engaged as a presiding judge in yet another case where he had a disqualifying conflict - but stayed on the case, because it was financially beneficial for his law clerk's husband James Hartmann. 

So, while duping the voters into voting for him, claiming during his election campaign that Rosa is not like Becker, Rosa is Becker's twin brother where misconduct and conflicts of interests are concerned.

And, it is to Rosa that Muehl, who was, once again, NOT assigned to our case, sends a copy of his "last call" letter of March 17, 2016.

"Cooperate" with Muehl or Muehl will close investigation that he was never authorized to handle.

By the way, Muehl tried to entrap me into unauthorized practice of law.

In the letter of March 17, 2016 published here Muehl mentioned that he sent something to "us" on December 11, 2015.

On December 11, 2015 my law license was suspended, and I could not represent anybody else other than myself.

Muehl sent his demands on December 11, 2015 only to me, not to my husband.

Had I given my husband those demands, the same Muehl would have charged me for unauthorized practice of law.

I am writing here about Muehl's shenanigans as a citizen journalist, notifying the public, including criminal defendants, attorneys representing them, as well as for witnesses who Muehl subpoenas or otherwise contacts in cases where he is ALLEGEDLY assigned as a "special" prosecutor - without checking Muehl's order of assignment, there is no assurance that Muehl is telling the truth and is really assigned to the case.

Because, as this case shows, Muehl may be lying, and that includes lying to the court.

Wife-of-a-judge Ellen Coccoma and the saga of her time sheets as the Otsego County Attorney

Some New York agencies are a pleasure to work with in terms of Freedom of Information requests and some are ... well, not a pleasure to work with.

For example, I do not recall having a problem, to date, when filing FOIL requests with the office of the New York State Comptroller.

The NYS Comptroller's office 

(1) has a contact e-mail for FOIL requests;
(2) promptly responds to FOIL requests;
(3) promptly provides requested records, and
(4) even has a public list of types of records that are available for FOIL requests - whether that list is complete or incomplete, I did not have time to check yet, but it is long, 11 pages.

One of the items on that 11-page list is time-sheets of employees.

It is understandable that employees on taxpayers' payroll must have time-sheets showing whether they actually worked on a certain day or not.

If they didn't work on a certain day, they cannot draw their salaries and benefits for that day (or for hours not worked).

That principle is applicable to taxpayer-funded public officials on all levels, from state to county to local governments.

Apparently, not so for wifes-of-judges who are public officials.

I filed, long time ago, in September of 2015, a FOIL request regarding time sheets of Otsego County Attorney (NY) Ellen Coccoma, who is wife of the Chief Administrative Judge of upstate New York Michael Coccoma.

Yesterday, on March 28, 2016, as part of my administrative appeal of constructive denial of my FOIL request, after assurance of a prolonged "legal review" of my request, I finally got the answer to  my inquiry for Ellen Coccoma's time sheets - there are none.

Now, why did Otsego County need 6 months and an administrative appeal of constructive denial of my FOIL request to provide an answer that there are NO public records responsive to my request?

To give Ellen Coccoma time to find and destroy those time sheets better?  After her alleged "legal review" that Otsego County claimed they are doing?

So, either Otsego County Attorney Ellen Coccoma destroyed those as part of her alleged "legal review", or such time sheets were never filed by her.

And that's a shame.

Because I know for a fact - and there are court records to back me up - that Ellen Coccoma, during daytime, when she, as a full-time, taxpayer paid Otsego County Attorney was supposed to do work for Otsego County - was representing private clients in private court cases, in her side job as "special counsel" for Hinman, Howard and Kattel, a large law firm out of Binghamton, New York.

"Coincidentally", Ellen Coccoma was recently part of the Professional Conduct Commission of the Appellate Division, 3rd Judicial Department.

As an attorney and "officer of the court", spouse of a high-ranking judge, and a recent prosecutor of attorney misconduct, Ellen Coccoma should be beyond reproach - not in the sense that she is immune to criticism and above the law, but she should conduct herself to a higher standard than the lay public.

Yet, in a "strange coincidence", Ellen Coccoma did not file or destroyed her time sheets, so that they are not available for my review on FOIL request, and a recent attorney for the same Professional Conduct Committee where Coccoma was a recent member, of the NYS Supreme Court Appellate Division 3rd Department Steven Zayas (along with the Chief Attorney Peter Torncello and third attorney) was caught and "resigned" for falsifying time sheets - which did not cause them to lose their law licenses, as it did not cause Christina Ryba, "special counsel" for that court's chief judge Karen Peters, to lose her law license after she was fired in November of 2015 for unethical conduct.

Do they teach how to engage in unethical conduct and escape without discipline in that 3rd Department Committee - or is it just the wife-of-a-judge pedigree that went to Coccoma's head?

I will follow up with FOIL requests and other actions to several public authorities about this extraordinary admission by the Otsego County that I squeezed out of Otsego County only at the threat of a lawsuit.

Stay tuned.