THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

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

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

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

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

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

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

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


Monday, June 6, 2016

In Delaware County, NY, child neglect proceedings appear to have been illegitimate - for years

When a child neglect or abuse proceeding in New York concludes with an adjudication (court decision) of child neglect or abuse, the proceeding moves to a "dispositional stage".

At the dispositional stage, the court must order "services" in accordance with the social services plan.

Social Services Law 34-a(2)(b) requires that a "summary of understanding" between the social services and the local District Attorney's Office must be made part of that plan.

I asked, on a FOIL request, for the summary of understanding between the Delaware County DSS and the Delaware County District Attorney's Office.

Here is the response I've got:



If the plan did not comply with statutory requirements, it was not valid.

If it was not valid, no services could be provided, ordered by the court - or funded - without first satisfying statutory requirements.

New York State Comptroller actually audited the County in 2014-2015, and specifically audited its Department of Social Services.

They did not see this?

Or somebody's hand was greased enough not to see it?

The fact remains - without full compliance with applicable statutes, the "multi-year services plan" in Delaware County is illegal, and without a legal services plan, all child neglect and abuse adjudications are also illegal.

The law is the law - right?

A 321 pages long cell phone bill for Delaware County (NY) employees - why?

I continue to publish responses of Delaware County, NY, to my FOIL request.

The country denied my request for the latest cell phone bill of the County claiming that I need to pay $87.60 ($80.25 for copies plus $7.35 for postage) for the paper copies of the bill that I asked to scan and send to me by e-mail.

In response, I filed a FOIL request for the inventory of Delaware County's scanning equipment, since the County is required by law to provide scanned copies of paper documents if they have scanners that scan as easily as the documents can be copied, and I am sure the County, with its multi-million-dollar budget (that my husband and I contribute to, as captive cash cows, owners of property in Delaware County) does have such scanners.




It is obvious that Delaware County is playing a game - trying to delay or stall disclosure of any information that can lead to charges of corruption against the County or raising issues of improper use of government equipment.

New York State Comptroller already found that County employees misused county-assigned vehicles - for years.

And, that the county never submitted to public bidding their contracts - for decades.

I only asked for a cell phone bill - that is a public record, without exceptions.

I asked for it in electronic, scanned format.

I asked for it on April 29, 2016, by e-mail.

It had to be provided within 5 business days, also by e-mail.

Today is June 6, 2016, and I only have a demand that I either pay for paper copies (that I do not need) and for postage (that I do not need - I asked for disclosure by e-mail, and the County has no right under FOIL to charge for postage) - or be denied these records.

Ok, I understand the game.

But, inadvertently, while denying me the records, the county still gave me significant information.

The most recent cell phone bill of Delaware County consists of 321 pages (!!).

That is in the county of about 48,000 people, with a per capita income of $22,695 and a median household (not individual) income of $43,000.

A county supported by poor taxpayers has a need to assign cell phones to so many employees that a monthly bill consists of 321 pages?

I recently published e-mails and cell phones of Otsego County employees (information that is still claimed to be for employees only on the Otsego County website).

The number of assigned cell phones begs a question - WHY?

Why so many county employees who have landlines also are assigned cell phones, at taxpayers' expense?  So that they can connect with friends and family on the go, watch movies and post on Facebook?

The same question refers to Delaware County - why the County's cell phone bill is 321 pages long?

Can you, Delaware County taxpayers, afford this?  

I am filing an administrative appeal now, and will publish a copy of the bill when it is provided to me.

Stay tuned.


Parents of children held in foster care in Delaware County, NY, be aware of reimbursement rates for foster parents in Delaware County, NY

I posted this information in my other blog, and am re-posting it here.

For some reason, links are not working on this site today, so I am reposting the full text from my other blog.

*  *   *


Recently, I received a response to my FOIL request from Delaware County (NY) on a number of issues.

As part of the response I received rates of reimbursement established by Delaware County (NY) for foster care parents, which I am publishing here:


Based on the daily "regular service and maintenance" rates, the following calculations as to monthly and yearly reimbursements can be made:

 per day  per month   per year 
Normal0-5 years $      15.89 $       476.70  $   5,799.85 
Normal6-11 years $      19.14 $       574.20  $   6,986.10 
Normal12+ years $      22.13 $       663.90  $   8,077.45 
SpecialAny age $      38.22 $    1,146.60  $13,950.30
ExceptionalAny age $      62.43 $    1,872.90  $22,786.95

Parents whose children are in foster care have a right to verify at which level their children are labeled, and how their foster parents are reimbursed for their care - and whether the monies provided for the "care and maintenance" are actually used for the purpose of "care and maintenance", or simply goes into the foster parents' pockets.

Apparently, it is very lucrative for a foster parent in Delaware County (and many foster parents in Delaware County, NY get such positions because they are officers or employees of local governments) to get a child into foster care who is still young (and does not eat much), but who is labeled "special" (behaviorally difficult) or "exceptional" (whichever the Commissioner deems "exceptional") - because keeping such a child pays more.

Please, remember that when a child is grabbed by social services and put into foster care, it often happens to poor parents whose children are on Medicaid and monthly SSI payments from the federal government.

And, that social services always bring child support proceedings against parents for children in foster care.

So, parents whose children are in foster care have a chance to verify whether the monies from the feds (SSI), from Delaware County as per reimbursement schedules I publish here, and monies squeezed from parents in child support, are actually used for the child, or simply soaked by the County into its "general account" and used for purposes unrelated to the child's care, which is fraud.


Here are also money allowances or "stipends" that must be provided to foster care children - so parents can verify whether that is done by foster parents or not.


There is also clothing allowance:


0-5 years $        1.10 $         33.00  $      401.50 
6-11 years $        1.54 $         46.20  $      562.10 
12-15 years $        2.39 $         71.70  $      872.35 
15 + years $        2.92 $         87.60  $   1,065.80 

So, if your child is in foster care in Delaware County for a year, and he is, let's say, 12 years old, and he has "behavioral problems", the rate of reimbursement for him will be:

$13,950.30 - care and maintenance
$240.00 - allowance
$872.35 - clothing allowance
---

TOTAL: $15,062.65

That is what the County provides out of its budget to take care of that child in foster care. 

First, the County then cannot get more than that from the parent per year - and should take into account the monies it receives from Social Security for the child on a monthly basis.

Moreover, the County must report to Social Security as to how the monies received from Social Security is used for the child's benefit.

As to children 0 to 3, there is also a diaper allowance.



When a child is put into foster care, there are, as shown above, powerful financial incentives involved to keep the child there, not reunite the child with his parents, as Social Services are required to do by law.

Delaware County (NY) DSS attorneys are allowed to derive private benefit from their public employment


Policies of Counties in New York are, very clearly, made under the guidance of a County Attorney.

The Delaware County Department of Social Services is engaged in the following activities:

(1) as a "neutral" court-appointed investigator for purposes of adoption;
(2) as an investigator of child neglect and abuse, which may result in removal of children from parents into foster care where the Department of Social Services is the child's legal guardian, and adoption of the child out of foster care, for which DSS gets federal incentive money.

It is very clear that attorneys for DSS as an investigator for purposes of all adoptions in the County, as legal guardians for children in foster care, as initiators of adoption proceedings out of foster care - should not have their own private adoption practice on the side, it is a complete conflict of interest.

I also know that former judge Carl Becker did have a private adoption practice on the side, concocted indicted reports on the Social Services side in cases where his private clients were involved absolving his clients so as to keep his lucrative private business intact.

I also know that the current County Attorney Porter Kirkwood was engaged in private practice representing individuals sued for elder abuse - which was completely contrary Porter Kirkwood's obligation as a prosecutor of elder abuse as DSS attorney.

With that in mind, I made a FOIL request with Social Services whether there are policies prohibiting private practice, and specifically, private adoption practice to DSS attorneys.


And, once again, County Attorneys are those who "guide" the County in creating (or not creating) such policies.

Obviously, County Attorneys and Assistant County Attorneys (for DSS) saw a direct financial benefit NOT to create policies prohibiting them a private practice on the side, or, specifically, a private adoption practice on the side.

So, DSS attorneys are at the same time acting as attorneys for investigators for all adoptions in the county, as prosecutors of child neglect which may result in removal of children and supply of children for adoption in the county, and as private adoption attorneys.

Nothing too corrupt.

Does Trump have a right to impartial judicial review - even though he is Trump?

The social media is buzzing with discussions whether it was appropriate for Donald Trump to raise the issue that there was an appearance of impropriety for a judge with:

1) Mexican immigrant parents and
2) who is a former colleague of one of the plaintiffs' attorneys

to preside over the class action for fraud against the Trump University and to rule adversely against Trump.

My personal opinion (and I am NOT a supporter of Trump as president of the United States) is - Trump has a right to raise that issue, publicly and in a motion to recuse and disqualify, and to vacate any rulings if such rulings were made by Judge Curiel without proper disclosures of what constitutes a potential appearance of impropriety, 28 U.S.C. 455(a).

Here is a most interesting statement in such a discussion.  I raised the issue that the threshold basis for disqualification is "appearance of impropriety", not "evidence" of impropriety - and that this law is established by statute, 28 U.S.C. 455(a) and by the U.S. Supreme Court precedent, Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).

To this, I received a response that, I believe, is at the heart of many problems with judicial partiality and favoritism:


The person (who I do not know), but who represents herself to be a lawyer, says:  

"there are dozens of lawyers from my old law firm and former undergraduate and law school acquaintances of mine who are now judges.  They might even remember my name.  We may have even spoken at a company picnic years ago or sat at a table where we shared an occasional lunch ... but that does not make them predisposed to rule in my favor".

Now.

Wouldn't you, if you are on the other side of this attorney, like to know whether a particular judge is:

(1) her former colleague;
(2) her former college or law school classmate;
(3) socialized with her at any time at picnics or other social events;
(4) has lunch with her, and thus a potential to talk to her outside of court?

Wouldn't you?

Imagine that the situation that is represented to you as innocent - a judge is a human being and has to eat his lunch somewhere, and people happen to be close to him, or even at the same table, right - is happening between a juror and a defense attorney.

It will be an instant disqualification of the juror and sanctions against the defense attorney, for non-disclosure of a potential conflict of interest.

Somehow, the situation with judges is deemed to be different - because it is apparent that the lawyer is concerned for the potential for disqualification of judges who are spawned by large law firms who continue to appear in front of such judges.

The whole problem is that lawyers and judges who made their careers out of large law firms, in order to preserve their ability to appear in front of their former colleagues, (or classmates) who are now judges - have engaged in efforts, for years and decades, to "desensitize" the public to the idea that appearing, without disclosure, in front of a judge who you personally know from out-of-court socialization or work - must be subject to disclosure to opponents in court, and may be subject to motions to disqualify, the law firm and the judge.

That means to lawyers loss of business where they would not be able to appear in certain courts.

Each such disclosure would mean for a judge a nick in his reputation - inadvertently so.  And, judges do not disclose such potential conflicts.

And, when such information emerges, judges engage in self-defensive tactics and often lash against the messenger.

Here, the mass media jumped in to kick Trump for raising the issue which is important for all of us - judicial impartiality, a right of an "unpopular" litigant to impartial judicial review.

Trump's motive to raise the issue is obviously subjective - he is doing it for himself.  Yet, because he is a presidential candidate, he just raised the issue as part of a presidential campaign, and that is extremely important.

Trump is wrong on many issues.

On the issue that a litigant has a right to impartial judicial review, he is absolutely right.

What Trump was raising is not only the Mexican heritage of the judge (which was bad enough, because Trump made multiple public statements that could ignite against him anybody with Mexican immigrant parents), but also that the judge worked in the same office as one of the plaintiffs' attorneys - and apparently did not disclose it when he got assigned to the case and before he ruled adversely against Trump.

If we start to judge, which is exactly what is being done in mass media, who is and who is not entitled to impartial judicial review by their identity or public statements, that means that the rule of law in this country has ended.

Because Trump is Trump, he is not entitled to raise an issue that bothers him, that the judge (1) should have disclosed his potential conflicts of interest, (2) should have recused from the case or at least (3) should have allowed, after disclosure, to Trump to make a motion to recuse - before the judge made adverse rulings against Trump University?

If the judge had a potential to socialize with the plaintiffs' attorney, he had a duty to disclose that, and Trump has a right to raise that issue in a motion to disqualify for appearance of impropriety, under the statute and under a U.S. Supreme Court precedent.

Judge Curiel's "stellar" reputation has nothing to do with his:

(1) failure to disclose what can be perceived by a reasonable person as a potential conflict of interest; 
(2) failure to recuse in a case where his impartiality can reasonably be questioned, and
(3) adverse ruling against a person who could have insulted, badly, the judge's heritage and parents.

It is clear as day that judges are humans, and that insults to anybody's heritage can inflame a person with the most "stellar" reputation.

That's why insults going to the person's heritage are considered "hate speech" and are often not protected by the 1st Amendment.

If the judge has Mexican immigrant parents, and Trump is gathering crowds (rightly or wrongly) by claims that, if he is elected as President, he is going to build a wall blocking illegal immigrants from crossing the Mexican border into the U.S., and, basically, equates Mexicans with criminals -  the judge had to have the decency to recuse himself, or to disclose it.


"“When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

Donald Trump, presidential announcement speech, June 16, 2015

In that statement, Trump does not make a distinction whether the people "Mexico sends" are legal immigrants or illegal immigrants.

I have no access to documentary evidence as to whether Judge Curiel's parents were legal or illegal immigrants, there are claims that Judge Curiel's father came to the U.S. as a temporary worker under some war-related labor agreement between the U.S. and Mexican government, but, once again, such documents were not published, and thus, whether that was true or not, we do not know.

But, Trump's statement above maligns all Mexican immigrants, whether they immigrated legally or illegally.  

To Trump, only "some" of Mexican immigrants are good people, but otherwise, to Trump, they are criminals - including rapists.

To say that a judge with parents who are both Mexican immigrants, is unaffected by those statements, is to insult anybody's intelligence.


 “What can be simpler or more accurately stated? The Mexican Government is forcing their most unwanted people into the United States. They are, in many cases, criminals, drug dealers, rapists, etc.”

–Trump, statement about his June 16 comments, July 6, 2015".

It is an appearance of impropriety, to me, when a judge continues to claim that heritage of his own parents has nothing to do with his adverse rulings against Trump who may have deeply hurt the judge's parents, and the judge himself, where it hurts the most - by making hate-speech statements about the judge's heritage, about Mexican  immigrants as potential criminals, drug dealers and rapists.

It is as good as telling anybody with Mexican heritage - you've come from the stock of rapists, criminals, drug dealers.

To even assign a judge with a Mexican heritage to a case of such a litigant is, to me, an appearance of impropriety because, with such a judge presiding, the litigant has no chance for impartial judicial review, and here it is not just Trump personally who is sued, but his organization, the Trump University.

There IS an appearance of impropriety in that a judge with Mexican immigrant parents created a sensational ruling, adverse to Trump, taking away potential votes, and making it during Trump's election campaign. 

Appearance of impropriety, as a legal threshold for making a motion to recuse, is subject to reasonable perception of the person who is making the motion.

What constitutes a "reasonable" perception, differs from one reasonable person to another, that's why we have juries to decide court cases, and that's why we have rules requiring for a unanimous jury verdict in criminal cases and for a supermajority jury verdict in civil cases.

All of the jurors picked through the appropriate voir dire process are presumed to be reasonable fact-finders, and yet, their opinions differ.

And, because opinions may differ as to whether there was or there wasn't appearance of impropriety in Judge Curiel presiding over the case against Trump University - it does not make Donald Trump's perception "improper" or his criticism of the judge inappropriate.

Donald Trump has a right to feel the way he feels, under the circumstances, and to raise the issue of appearance of impropriety.

If we deny the right to challenge impartiality of a judge under the statutory and constitutional appearance of impropriety standard to Donald Trump, we deny it to everybody else, including ourselves.

And, what is important the most is - a potential for the judge of knowing the litigant or litigant's attorney outside of the court proceeding that creates an unfair advantage in litigation, most often relates to the judge's prior employment in the government or a large law firm.

Pro se litigants and small-firm lawyers most often do not have a chance to boast, like the lawyer on Facebook did, that "dozens" of her former law firm colleagues have become judges.

So, to even out the scales of justices, information about being a classmate or a former colleague of a judge, or having lunches with judges, or socializing at picnics with judges - should be disclosed, by both the judges and by attorneys appearing in front of judges.

And, if that disclosure is not done, that should already be a proper ground for a motion to recuse, if discovered.


Sunday, June 5, 2016

The 9th Circuit overturns a conviction for conspiracy to sell drugs - that's the same 9th Circuit that refused to reverse a murder conviction despite clear facts in favor of such reversal

Ok, so the 9th Circuit is now portrayed in a legal blog as a hero fighting wrongful convictions again.

It reversed a conviction for conspiracy to sell drugs because the defendant was not charged with the sale of drugs, was only charged with a conspiracy to sell and there was no conspiracy.

While meticulous factual analysis by the court of the overcharging efforts of prosecutors should be commended, it appears that the court makes political decisions - the same court disregards and even misrepresents facts from the record when it wants to sustain a murder conviction and a life sentence, no matter what the record says, and yet wants to present itself as a fighter of wrongful convictions when "just" drugs are involved.

So much for the court's independence and integrity.

Cuomo announces that New York "Stands with Israel" while New York Attorney General defends violent Anti-Semitic actions of judge Kevin Dowd in a civil rights lawsuit

New York governor Andrew Cuomo, with much fanfare, announced today his executive order divesting public funds from all campaigns that support Boycotts, Divestments or Sanctions against the State of Israel.

The press-conference about this Executive Order, held on a Sunday, was transmitted on Twitter and Facebook, among other social media sources.

First of all, I do not believe that the Executive Order of Governor Cuomo is legal - because it refers to national foreign policy, to the State of Israel being an "invaluable ally", and expressing a standpoint on a sensitive international policy issue.

Governor Cuomo, as a state Governor, has no right to make any decisions impacting foreign policy of the United States.

Moreover, if, as it was mentioned at the press-conference introducing this executive order, the order was meant to fight anti-semitism, Governor Cuomo should then start practicing what he preaches - and see that New York Attorney General's Office and the New York State Commission on Judicial Conduct do not receive public funds, since both of these entities openly support anti-semitism:

1) New York State Commission for Judicial Conduct - by refusing to prosecute anti-semitic conduct of Chenango County Supreme Court judge Kevin Dowd; and

2) New York State Attorney General - by representing Judge Dowd against a now-pro se appellant Moshe Schtrauch and claiming on behalf of Judge Dowd that Judge Dowd's violent unlawful anti-semitic behavior regarding Moshe Shtrauch was justified as "preventing disruptions of court proceedings" (Judge Dowd ordered a known anti-Semitic security officer, a Nazi sympathizer, who was armed, to forcibly eject Moshe Shtrauch, the citizen of the State of Israel, out of the Chenango County courthouse AFTER Judge Dowd recused from Moshe Shtrauch's divorce case - because Moshe Shtrauch had the audacity of bringing a motion to recuse Judge Dowd, which Judge Dowd granted).

The transcript of the conference after which Judge Dowd recused and ordered ejection of Moshe Shtrauch does not show any disrespectful statements by Moshe Shtrauch or any other signs of claimed "disruption" of the court proceedings, and no proof of such disruption was ever provided to the court since the case was dismissed before discovery on the grounds of "absolute judicial immunity" for malicious and corrupt acts.

And those malicious and corrupt acts include Anti-Semitic acts on the bench by New York judges.

NOW.

In view of today's Executive Order - has Judge Dowd just been stripped off services of the New York State Attorney General?

After all, the Executive Order prohibited the use of taxpayer money to support anti-semitism.

Right?

So, Judge Dowd should not be represented by New York State Attorney General any more in opposition of Moshe Shtrauch's pro se appeal in his civil rights case against Judge Dowd.

Right?

Or, is it just lip service by Cuomo to the "largest Jewish population out of the State of Israel" (in New York) while Cuomo is the target of a criminal investigation by the feds?

A cry for help to the wealthy Jewish community to apply some pressure upon U.S. Assistant Attorney Preet Bharara?

The investigation against Cuomo has gotten that bad?

What remains is - while New York Attorney General continues to assert violent Anti-Semitism of a judge against a citizen of the State of Israel (or anybody else), even after he recused from a case, as subject to "absolute judicial immunity" - the executive order is nothing other than hypocrisy, a distinguishing feature of Cuomo.