The mercenary tell-all of Judge Posner and the silence of the "legal experts" about Posner's decades of misconduct, to the detriment of thousands of appellate litigants

Recently, a famous federal appellate #JudgeRichardPosner - famous for his proliferant writing and appearances outside the court for a number of decades - have published a book.

Of course, the question is, how a 78-old judge with a large caseload had the time to put together yet another book (he has published many while "serving" as a judge, begging the same question - where did he get the time?).

Writing a book is not a walk in the park, it is a full-time job.  Judge Posner somehow had many books published.  I already discussed on this blog the BIG public issue of where judges who publish books, teach outside the courtroom and make trips all over the country during business time of the court, get time to do that.

There is no question that such behavior takes away from their work as judges, the quality of opinions which they produce.

As to judges of federal appellate courts, which all developed a "policy" of reviewing only a small number of cases with full opinions, and to issue only summary orders for nearly 100% of pro se litigants, with no proper review, analysis and resolution of issues, BECAUSE the court is very busy and cannot use its precious time equally for all appellants, it becomes even a bigger issue.

Judge Posner was a federal appellate judge for 36 years, since December 1, 1981.

As Judge Posner confirms in his new book, he had authored plenty of article, "blog posts", and full-blown books while working as a judge:

"...my intellectual activity was never limited to the court; in my lifetime I have authored or coauthored not only many books but also countless articles and blog postings; and though many of the books and articles and blogs preceded my becoming a judge, a large number of them have been written and published since my appointment."

Posner, Richard. Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Kindle Locations 186-188). Kindle Edition.

And that is an understatement of the century.

Books published by Judge Posner are listed on Amazon on 12 pages - only lists of books.

Now, I do not doubt that Judge Posner is a very talented lecturer, teacher and scholar.

But, what I as a taxpayer and member of the public, am appalled about is that Judge Posner considered it possible to take enough time out of his full-time job as a judge to write that 12 pages of lists of books, to teach in all those schools (brilliantly, I do not doubt), to travel across the country, to make those interviews to the press and the media.

He had a full-time job as a judge on a court reviewing death penalty cases, and cases of constitutional violations by the government, his court, as other federal courts, repeatedly claimed to the U.S. Congress and the American public being overloaded and understaffed.

Yet, at the very same time,

• he found enough time to write books, lecture, travel the country during his court's business time, and
• his court unlawfully reduced appellate review of practically all pro se civil rights appeals, to summary orders -

when Posner was a judge of that court, and when Posner was the Chief Judge of that court, setting up the court's policies.

If judges do not have enough time to treat equally all of appellants who pay equal filing fees and have an equal right to a full review of their appeals, not a negligent fly-over-the-roof review, if any at all, through a summary order, like described in this law review article,

where do the same judges find time (for their own entertainment and financial gain), like Judge Posner did, to write books, teach for a fee, participate in various societies,

speak for a fee or travel to speak for free, but have his/her expenses paid + entertainment and lavish wining and dining?

It does not look like a little bit of corruption, it is corruption.

And Judge Posner was part of that corrupt setup for a very long time, doing NOTHING to change it.

So, why would now the 78-old judge who was appointed for life, would retire instead of (like practically all federal judges do) "assume senior status" and pretend he authors opinion when his law clerks do that for him, until he drops dead or until the court can no longer conceal that a certain judge has completely lost his mind to dementia?

Why would Judge Posner only now become this revolutionary and rubble-rouser and claim that the U.S. Court of Appeals for the 7th Circuit discriminates against pro se litigants and "does not give them a fair shake"?

Like, he did not know it before?

Like, he did not PARTICIPATE in the discrimination before, and did not create, enforce and perpetuate this discrimination?

Oh, no.

Apparently, first, Judge Posner had a piss-off battle, some kind of a grudge with his colleagues on the court, and at 78, apparently decided that a federal pension + book royalties and speech engagements/teaching fees will be enough for him in his "sunset years".

Second, Judge Posner retired with a door-slam for a distinct financial reason - to sell his new book.  I bet it will be selling well now.

Of course, it is too little too late for Judge Posner to persuade the public that he truly cares about that same discrimination - because, if he does, and he knew about it for years while being on that court, he should have gone public about it while still there, while still being able to make a difference about it through court decisions, while voicing dissent about tossing appeals of pro se litigants through summary orders.

There is no question that there is a silver lining in Judge Posner's self-serving door-bang retirement jest:

• he is a public figure of a caliber and renown who cannot be easily smeared by the court system for his criticism of the system's flaws;  
• the discrimination against pro se litigants in state and federal courts, and in federal appellate court specifically, does exist, and public attention was drawn to it by Judge Posner, no matter how late and for what self-serving reasons.

But, let me ask a question - a rhetorical question.

What would Judge Posner do if, when he is still on the bench, an attorney practicing in "his" court would publicly raise the question of "his" court's discrimination against pro se litigants, and listing Judge Posner as one of the judges who are practicing that discrimination (which would be correct)?

I have no doubt in my mind that such an attorney would be severely disciplined and would likely lose his/her law license and livelihood.

As it is happening from time to time, with increasing frequency, around the country.

Because in our day and age only a well-renowned judge, and only on the doorstep of his retirement, can tell the truth about discrimination in our courts.

And only to sell a book.

That are my thoughts on the timing of Judge Posner's "revolutionary" retirement.

As to the contents of the book, I will publish a full review of the book later.

Stay tuned.

And actually, the best accuser against Judge Posner here is - Judge Posner:

So, for 35 years, this judge created, promoted, perpetuated and financially gained from the discrimination against pro se litigants as a matter of policy, including in a position of Chief Judge of his court who could do away with that discrimination, as a matter of policy and rule of court, in one pen strike.

And 6 months ago he somehow "awoke from a slumber of 35 years" and "wanted to do something about it".

Like - sell a book, for $11.99 in paperback, or for whatever dribbles in royalties from KindleUnlimited sales.

So, for the public, and for the "legal experts" who are salivating over the supposed brilliancy of Judge Posner while having no courage to address his screaming misconduct over the years - this judge deserves only one "badge":  shameless.

Is it proper for a judge to decide an appeal from his own decision? And - is it misconduct for an attorney to concede points that would derail appeal of her own client, in order not to hurt feelings of a law school classmate-judge before whom she is practicing?

I wrote on this blog previously about #judgeRobertMulvey who first assigned judges to my husband's case in the court below, claimed in federal court, in order to obtain judicial immunity, that he acted when assigning such judges in his judicial capacity, and then was conveniently promoted to the Appellate Division right after my husband has filed the appeal from that decision, and dismissed that appeal as an appellate judge on fabricated grounds.

To me, that was no question that it was unlawful for a judge to decide on appeal a case where he acted in his judicial capacity in the court below.

Apparently, Judge Mulvey is not alone in doing what he did.

A case has been argued on September 6, 2017 in the highest court of the State of New York - New York State Court of Appeals, whether it was a violation of due process for a judge not to recuse himself from reviewing an appeal from a judgment of criminal conviction that the same judge made as a trial judge.

In other words, the same judge was the trial judge in a non-jury trial in a criminal case, and the appellate judge from his own decision at the trial level.

Here is the digest of the case published by the New York State Court of Appeals.

The appellate defense #attorneyDanielleNeroniReilly argued that failure of the trial judge to recuse from reviewing the appeal from his own decision is a violation of due process.

She referred to a federal statute, 28 U.S.C. 47, enacted by the US Congress in 1948, nearly 70 years ago, which says:

"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

Apparently, the U.S. Congress enacted that statute based on due process concerns involved when a judge would review criticism of his own decision at the trial level.

The U.S. Congress, 70 years ago, considered that the possibility of bias in such a situation is impermissible.

Yet, in New York there are no such prohibitions by statute - even there should be, as a matter of federal constitutional due process of law, which is what is argued in People v Novak.

The case was already orally argued, and a decision is pending.

It is a great victory for the defense attorney that she even got the case before the Court of Appeals that casually rejects cases with "insubstantial constitutional questions", even though the New York State Constitution and a specific New York State statute mandates acceptance of all constitutional question cases for review.

A close-to-retirement (and now retired) judge of the court actually argued, in a vigorous dissent, that what the court is doing in rejecting constitutional question cases is not proper or legal.

==

NEW YORK COURT OF APPEALS

2010 NY Int. 24

---

This opinion is uncorrected and subject to revision before publication in the Official Reports.

---

2010 NY Slip Op 01349

Decided on February 16, 2010

SSD 4

In the Matter of Alan Kachalsky, Appellant,

v

Susan Cacace, & c., Respondent.

Decided February 16, 2010:

Appeal dismissed without costs, by the Court sua sponte,

upon the ground that no substantial

constitutional question is directly

involved. Chief Judge Lippman and

Judges Ciparick, Graffeo, Read,

Pigott and Jones concur. Judge

Smith dissents and votes to retain

jurisdiction in an opinion.

SMITH, J. (dissenting):

I dissent because I think the dismissal of this appeal exemplifies an amorphous definition of "substantial constitutional question" that is at odds with CPLR 5601 (b) (1) and the New York Constitution.

Article 6, § 3 (b) (1) of the New York Constitution says that appeals to this Court may be taken in civil cases and proceedings:

"As of right, from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding wherein is directly involved the construction of the constitution of the state or of the United States .

. . ."

CPLR 5601 (b) tracks the constitution:

"Constitutional grounds. An appeal may be taken to the court of appeals as of right:

"1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States . . . ."

Neither the constitution nor the statute says that the constitutional question involved must be "substantial," but we have interpreted them to mean that. And the interpretation makes sense, if "substantial" is taken literally. The authors of the constitution and the statute surely did not intend to burden our Court with appeals as of right based on questions that are without substance, i.e., frivolous. As Karger points out, the substantiality requirement "is an obviously necessary safeguard against abuse of the right to appeal on constitutional questions, for otherwise the right to appeal would turn on the ingenuity of counsel in advancing arguments on constitutional issues, howsoever fanciful they might be" (Karger, Powers of the New York Court of Appeals § 7:5, at 226 [3d ed rev]).

But we have at times followed the practice — one in which, I confess, I have joined — of giving "substantial" a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602. I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it.

This case illustrates the point. Petitioner's argument, rejected by the courts below, is that Penal Law § 400.00 (2) (f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment . I make no comment on the merits of either issue, except to say that neither is insubstantial. The first is of such great substance, and current importance, that the Supreme Court has granted certiorari to consider it (McDonald v City of Chicago, __US__, 130 S Ct 48 [2009]). The second issue, in light of District of Columbia v Heller (__US__, 128 S Ct 2783 [2008]), unquestionably presents fair ground for litigation. On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful.

There is, I recognize, a perfectly reasonable argument that, if we had discretion about whether to take up these issues now, we should choose not to do so; it might make sense to wait to see how the Supreme Court decides McDonald.

I would not quarrel with that exercise of discretion, if I thought the discretion existed. I think, however, that petitioner has a constitutional right to have us hear this appeal, and that's all there is to it.

==

The mere fact that the New York State Court of Appeals, the court that rejects nearly all constitutional question as of right appeals, and especially those pertaining to recusal of judges, as a matter of their own (illegal) policy, even took this case, means that the court did accept that there is at least a POTENTIAL constitutional question in the case.

Yet, at least from what I can see reported in New York State Journal, judges of the New York State Court of Appeals tried to water down the importance of the federal constitutional question by confronting the appellate attorney with a question which the attorney - judging by her answer - perceived as threatening to herself and started to hedge, which, in my opinion, hurt her position.

As New York State Law Journal reports, 

"Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias."

The question, while not illegitimate, was threatening, if you take into consideration that that particular attorney's father and stepmother's law licenses were revoked for criticism of judges in court - whatever the official reasons were given in the actual orders of disbarment of her father and suspension of her stepmother. 

And, it is a matter of public record that the same Judge Jenny Rivera participated in twice-rejecting the constitutional question appeal of the stepmother as to: whether it was a 1st Amendment and due process violation for a judge to be allowed to punish an attorney for the contents of a motion to recuse, and for the disciplinary authorities to allow to pull the attorney's law license without a hearing because of such a vengeful sanction.

So, it is the law in New York that your law license may be pulled because you legitimately make a motion to recuse a judge, the judge will then sanctions you in revenge, and that's it, no further hearings, your law license will be pulled just like that.

And, presumably knowing the law of attorney discipline as to criticism of judges, attorney Reilly, a mother of young children, answered that question, a question of intimidation to any attorney in New York.

A non-intimidated attorney would answer this question - BOTH.

BOTH appearance of impropriety AND the potential for actual bias are a concern when a trial judge reviews his own trial decision on appeal - because the litigant cannot get into the head of the judge who would be deciding an appeal (and thus criticism) of his own decision in the court below, but, knowing "human frailties", may legitimately suspect that the judge would not like criticism of his own decision and will affirm his own decision simply because he is partial to himself.

Yet, by giving such an honest answer, an attorney can subject herself to the potential ostracism in court by the same supposedly "fair" judge, before whom she, no doubt, continues to practice - so an attorney under such circumstances may have a personal reason to hedge.

Accusing a judge of actual bias in New York, even on good record and with good grounds, has become a suspension offense, and the attorney knew it, based on what happened to two of her own family members.

So, she hedged and answered this:

"Appearance of impropriety."

Now that would have been enough of an answer to that question.

But, the attorney who has young children to support, was apparently intimidated by the question and did not want to part with her career by even having a shadow of a doubt that she may accuse a judge of actual bias or even imply it, so she went on.

"Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case," Reilly said. "But that's not what I'm asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law."
Now, why an attorney would say "Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case" while contending that appellate review by that same Judge Sypniewski amounted to now appellate review at all - specifically because of a potential of bias in such a case?

And why should an attorney, while putting in a question of LEGAL THEORY, whether a judge MAY, as a matter of due process of law, be allowed to review an appeal from his own decision, consider it necessary to shoot her own argument in the foot (to the detriment of her client) by claiming that:

1. she actually knows that particular judge; and
2. that she actually knows that particular judge to be "fair through and through".

If the judge is fair through and through, there is no point bringing an appeal, because there would be no potential for bias, and the client should simply accept his fate.

An attorney is the official voice in court of his client, so it was not Danielle Neroni Reilly, but it was Brian Novak who told the court that HE accepts that Judge Sypniewski is "fair through and through".  Nothing like selling your client out, to save yourself.

And, the question is whether the client allowed attorney Reilly to concede these significant points on the appeal, that the judge whose decision to (1) decide an appeal from his own judgment; and (2) decide it (surprise, surprise!) by affirming his own judgment against the defendant had no indication of actual bias, and that the judge was "fair through and through".

I highly doubt that any client would knowingly shoot his own appeal that he paid for in the foot this way.

Yet, that statement of Novak's attorney renders his appeal, in my opinion, frivolous - since he is appealing a decision of an admittedly fair judge who was admittedly fair to him in that particular case.  Let's see whether the Court of Appeals would use that sellout admission against Brian Novak - I am sure they will.

My question on reading the article about this oral argument was - why?

Why take this case if you do not have the courage to argue it the way it has to be argued?

Why not anticipate this question and hedge when it was asked?

After having the courage of bringing this case all the way through to the Court of Appeals, why hanker down and defeat your own argument - that a situation where a judge decides an appeal from his own judgment is fraught with  a great, impermissibly dangerous potential of ACTUAL BIAS?

Anyway, the case is in, it has been argued, and we are now waiting for the decision of the New York State Court of Appeals.

It is time for New York to emerge out of the cave and admit that a person must not "sit in judgment of himself" and to evaluate propriety of his own decisions.

The U.S. Congress has decided the same thing, as attorney Reilly correctly mentioned in her argument, in 28 U.S.C. 47, and that statute has been enacted long time ago.

And, while the New York State Court of Appeals may still continue to wiggle (as Judge Jenny Rivera did with her intimidating question) around the constitutional question and claim that it is "merely" a question whether there was an "appearance of impropriety" -

especially since the defendant conceded through his attorney that the judge was "fair through and through", and, even more so, that "there is no indication that [the judge] had actual bias in this case" -

other that the judge taking his own decision and affirming it, that is 

- the question remains, and is actually broader than posed in this particular case: may judges, as a matter of due process, be allowed to review and make decisions on criticisms of themselves, decisions involving people's lives and livelihoods - whether the criticism was in a motion to recuse, or in an appeal from the judge's own decision.

This question must be rhetorical.

Yet, unfortunately, it is not in New York.

One more question that the prosecution in this case raised - and decision of which has important consequences for litigants in New York in both civil and criminal cases - may a judge review motions to vacate the judge's own decisions.

In my case, I was sanctioned by the judge for making a motion both to vacate his prior decision and to recuse from consideration of such a motion because of the judge's bias and prior misconduct in that same case.

Here is what prosecution in People v Novak argued, according to the New York State Court of Appeals' digest of the case:

Of course, it is disingenuous for the prosecution to argue that

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

First of all, "goes uncontested" is an unjustified generalization which is not true in every case, such motions may still be made.

Second, if such "common practice" does go uncontested, the prosecution must know what the law in New York is in making motions to recuse a judge - even in criminal cases, considering the fate of criminal defense attorney John Aretakis who was

• suspended for making a motion to recuse a judge in a criminal case,
• where the disciplining court (which was also an appellate court in a criminal case) actually taught the judge at the trial level how to sanction him correctly so that the sanction would stick:

"In 2005, Christian F. Hummel, Acting County Judge of Rensselaer County, sanctioned respondent for his frivolous conduct in making a recusal motion in a criminal matter.

Judge Hummel found that respondent had made reckless and unsubstantiated charges that the Judge had participated in a criminal conspiracy to predetermine cases, had committed federal mail fraud, had regularly engaged in impermissible ex parte communications, and had engaged in a conspiracy to tamper with court files.

On appeal, this Court found that any such sanctions should have been imposed under Judiciary Law §§ 750 and 751 rather than 22 NYCRR 130-1.1 (People v Allen, 34 AD3d 1044 [2006]).

Upon remittal, Judge Hummel held a hearing, found respondent in contempt of court pursuant to Judiciary Law § 750 and imposed the maximum allowable fine (see Judiciary Law § 751 [1])."

So, here is the timeline of John Aretakis case:

1. The attorney makes a motion to recuse a judge from a criminal case, on the following grounds:
1. criminal conspiracy to predetermine cases;
2. committing federal mail fraud;
3. regularly engaging in impermissible ex parte communications;
4. engaging in a conspiracy to tamper with court files
2. The judge who was accused of all those illegal activities, sat in judgment of the motion to recuse, refused to recuse, and sanctioned the attorney who dared to confront the judge with such a criticism, for "frivolous conduct". 
3. Of course, the rules of criminal conduct do not apply in criminal proceedings, so the sanction was illegitimate.  But, the Appellate Division (which is also the one-stop no-appeal disciplinary court for attorneys in that jurisdiction) did not restrict itself to ruling on appeal - that the Appellant was correct, that the judge was incorrect, and that sanctions were reversed.  No.  The Appellate Division went outside of its limited authority on appeal and actually TAUGHT the judge in question that, if he wants to sanction the attorney, he needs to do it under Judiciary Law 750 and 751 and, instead of reversing and dismissing the sanctions and calling it a day, returned the case to the court after they taught the judge who was offended by a motion to recuse how to act as a judge, jury, prosecutor and unsworn witness in the same case in sanctioning the attorney "properly" for making that motion to recuse.  The "heroes" who decided that case were:  judges Crew III, Mugglin, Lahtinen and Kane.  Judges in New York, by New York State Constitution, are prohibited to practice law.  Giving legal advice to a judge on an issue that is irrelevant to an appeal whether it was legitimate to sanction attorney Aretakis for frivolous conduct, was illegal for judges Crew III, Mugglin, Lahtinen and Kane.  But, judges Rose, Lahtinen, Kane, Kavanagh and Stein did not consider it a constitutional problem for his disciplinary case, and accepted the illegal sanctions as legitimate, and as not entitling attorney Aretakis to even a hearing before his law license and livelihood was suspended.  Of course, judges Lahtinen and Kane would not criticize judges Lahtinen and Kane for their own illegal activities - same as judge #MatthewSypniewski in People v Novak would change his mind as to validity of his own verdict of conviction (and you need to have a lobotomy to believe that actual bias was not involved here).  Note that part of the panel unlawfully yanking the license of criminal defense attorney John Aretakis for making a motion to recuse a judge was Judge Leslie Stein whose ascension to the New York State Court of Appeals was a quid pro quo by the corrupt NYS Governor Andrew Cuomo for her decision on an important case in favor of Cuomo's subordinate DEC Commissioner as a response to Cuomo's nomination of Leslie Stein to the Court of Appeals, will be one of the panel of judges in deciding People v Novak as to propriety of a judge to be allowed to punish a litigant who dared to appeal the judge's decision.  Judge Stein is apparently the best expert on the particular topic of punishing litigants for criticism of judges, so we should not hold our collective breaths as to what her decision is going to be in People v Novak.  And, attorney Reilly was arguing in front of Judge Stein, who took away livelihood of attorney Aretakis because he dared to claim actual bias and misconduct of a criminal trial judge - thus, apparently, attorney Reilly hedged and, instead of recognizing that actual bias may have been involved, shot her client's case in the foot and conceded on behalf of her client that (1) the judge was "fair through and through" in general, and (2) there is no indication of the judge being biased in this particular case.

Once again, the prosecution was making the point that  

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

To me, that is the same, no offense, as claiming that the victim of rape did not fight back because she was afraid that the rapist will kill her if she does.

Unfortunately, the rapist in this case is the court system.

And, by the way, the supposed personal knowledge by the attorney of #JudgeMatthewSypniewski,

that he is supposedly "fair through and through", was unsworn testimony of the defense attorney outside of the record - which should have been stricken off the record, but, I am sure, will never be, and will be used against the client.

Attorney Reilly does, in fact, know Judge Sypniewski, and knows him very well.

Judge Sypniewski was likely Attorney Reilly's law school classmate - they went to the same law school and were admitted to practice law in the same year, 2002.

And, Judge Sypniewski was a prosecutor in Schenectady County while Danielle Neroni Reilly was a prosecutor in Rensellaer County, and, attorney Reilly likely knew and possibly interacted with prosecutor Sypniewski in their mutual professional capacities as prosecutors.

So, of course, attorney Reilly would not want to overturn her own apple cart by criticizing, for even potential of actual bias, her former law school classmate and colleague, now a judge of a powerful criminal County Court who can make or break her career as a criminal defense attorney - and as an attorney of any kind.

Which brings me to the question - why did attorney Reilly even take the case at all if she was not prepared to argue the POTENTIAL of ACTUAL BIAS, as the legal argument in a case invoking as a parallel 28 U.S.C. 47 required?  If she knew she is not prepared , likely for multiple personal reasons, to hurt the feelings of her former law school classmate and former prosecutorial colleague, was not prepared to fully raise the issue of the constitutionally impermissibly dangerous possibility of actual bias when a trial judge reviews his own decision in a criminal case on appeal?

Why?

Was it just the money?

As to the supposed "fairness" of any judge to review an appeal from his own decision.  

Imagine that your trial attorney does an appeal from your conviction.

What will be the incentive of a trial attorney to shoot himself in the foot and raise the issue of his own ineffective assistance of counsel that has led to your conviction.

Similarly, if a judge whose career advancement and/or reelection and additional perks to his judicial career (speaking offers, teaching offers, overseas travel offers) depend on his squeaky clean reputation, where the less reversals are the better, how likely it will be that the judge will shoot himself in the foot, calmly and dispassionately review arguments against himself - possibly, raising issues of judicial bias and misconduct - and reverses himself?

There was such a chance to make a difference in a lot of people's lives by presenting and handling this case properly.

Regrettably, that chance was blown.

Shall we overcome this nonsense?

The first time I have heard the song "We Shall Overcome" was when I was 16 and was invited to a concert of students in the Moscow Linguistic University in Moscow, Russia.  

Then, in mid-70s and in the USSR, that song was already known as the unofficial anthem of the civil rights movement in the U.S.

Yet, nowadays, that anthem has become the focus of a lawsuit against a corporation claiming a copyright for that song, according to the lawsuit, stifling its public performances.

Here are the relevant portions of the complaint filed on April 12, 2016 in the U.S. District Court for the Southern District of New York, the case is called: 

We Shall Overcome Foundation et al v. The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-02725.

In November of 2016, Judge Denise Cote dismissed state claims on preemption grounds - since the majority of state claims hinge upon the main issue, whether the Defendants own a copyright to this "song".

On September 8, 2017, while allowing the case to proceed to trial, Judge Cote decided for the Plaintiffs, and removed from the trial by a partial summary judgment, this issue:

Here are the differences that were claimed to be protected by copyright:

This is the first case when I felt really, really sorry for the judge who has to go through all this nonsense about copyright of a song which has been in the public domain for more than half of a century - and her meticulous work in her dismissal decision and her partial summary judgment decision is commendable.

Look at what she had to deal with:

So, the what is "copyrighted" is subtle changes to the melody that can be made by a specific singer of the song and not an author, and which do not add anything to the originality of the work - and especially of a "song" which has been in the public domain for over 70 years.

I am not saying that to file this lawsuit was silly, no. 

It was, unfortunately, necessary if the supposed "owners" of the "copyright" to the civil rights anthem claim royalties for performing this song and stifle performance of what has long ago become a civil rights anthem.

In other words, each time anybody sings this song publicly as a means of political expression, he or she, or they must pay the "owners" a fee, or be in violation of federal copyright law (which can be enforced as a federal crime, too).

The lawsuit brings up important issues - as to the status of songs that people like so much that they become the banner of a large political movement.

This case still goes to trial on all issues other than whether the Defendants own copyright for the melody and first verse of the "song".  They don't, according to the court's decision.

Other issues in the lawsuit

- read the full decision here - are fair game at trial.

It will be, of course, a good and decent thing to do for people to just cede their supposed "copyright claim" to the public domain and settle the lawsuit.  But, it did not happen since April 12, 2016 when the lawsuit was filed, and our public funds are continued to be spent on the long fight which appears (on behalf of Defendants) to be nonsensical and bizarre.

It is interesting to mention - and the Plaintiffs in this case mentioned it - that the Defendants never pursued anybody for copyright violations in court, probably, understanding that they do not have much ground to stand on.

What will the jury say as to the remaining issues, now that the judge threw a wrench into the litigation by declaring that the Defendants do not own copyright as to the music and words of the first verse?  

I will continue to follow and report on this case.

Stay tuned.

Texas Supreme Court's "generous" permission for out-of-state lawyers - and an interesting revelation regarding the true reason for attorney regulation in the U.S.

The Texas Supreme Court magnanimously allowed out-of-state lawyers to provide services to Harvey victims - but only on a pro bono basis, and 

The Texas Supreme Court did not make a ruling for the in-state attorneys though restricting their ability to provide their services to the same Harvey victims to only pro bono.

Why is it so?

A prominent legal blog "Above the Law" explains it this way:

So, "I get the economics of out-of-state restrictions"?

"This State's bar can't have That State's lawyers flying in and scooping up all the legal work"?

So, the legal profession, in the face of a HUGE NATURAL DISASTER, that affected millions of people, is still insisting on their right to keep out outsiders who will simply charge less and provide better services - only allowing those who can afford the personal expense (travel, accommodation, being away from work and paying clients) of coming in and offering their services for free?

But, isn't occupational regulation of any profession in general, and attorney regulation in particular, imposed upon the American public (including in the State of Texas) as a way to PROTECT THE PUBLIC, not in order to protect in-state lawyers from out-of-state competition?

Yet, the disaster of Harvey and the spectacularly protective decision of the Texas Supreme Court, even in the face of this disaster, where ANYBODY will legal knowledge, with or without a license, willing to provide legal services, would be welcome, especially taking into account the amount of illiterate and poor people who would need legal help in the aftermath of the hurricane - reveals the true nature of attorney regulation.

Texas lawyers should be ashamed of its State Supreme Court, and should request to allow not only out-of-state lawyers, but non-lawyers, too, law students, people with law degrees, but without licenses, to be able to help in the aftermath of Harvey - for a minimal pay or without pay. 

And, if Harvey victims should be helped pro bono (which I am totally ok with), the Texas Supreme Court should allow help through the Internet to such people from anywhere in the world, from people with knowledge of the English language and legal knowledge, and should impose the pro bono requirement on such help universally, to every person serving such victims - without regard whether the person is a licensed attorney or not, an in-state attorney or not.

That would serve the purpose of serving the victims of the hurricane, and protecting the public from those who would want to gouge on people's misfortune - wouldn't it?

The 11th Circuit's decision re district courts' obligation to serve complaints of poor pro se litigants - too little to overcome the widespread practice of discrimination against the poor by federal courts.

The U.S. Court of Appeals for the 11th Circuit has issued a very important ruling regarding civil rights cases of indigent people:  that federal courts must themselves serve complaints of people who are given the so-called IFP status.

Yet, as important as this ruling is, it does not cancel the statute - and a very wide-spread practice - where federal trial courts dismiss pro se lawsuits of indigent people before serving them upon the opponents - as the 11th Circuit say they must do, pretending that they are "frivolous", and thus acting as advocates for the defendants.

Abolishing the statute is more in order, as this very rare case can be easily circumvented by dismissing the pro se IFP complaint and designating the appeal as "frivolous", as trial courts are allowed to do by statute, thus blocking appeals from their own decisions.

28 U.S.C. 1915(h) should be abolished as a disgusting statute allowing and encouraging discrimination against victims of civil rights violations by the government simply because they are poor.

#FederalJudgeClayDLand, an unlicensed OB/GYN - a severe case of menopause of the brain. #IStandWithAlishaColeman. #ImpeachJudgeClayDLand

I wrote on this blog earlier this year about a federal judge, Clay D Land, whose arbitrary decision to return a properly filed case from Georgia to South Carolina landed that case into the hands of local judicial mafia who catered for "their own" and disciplined an outsider attorney in an intellectual infringement case for following the law as it was written, on behalf of his wronged clients.

After that invaluable service saved the defendants from a 4.2 million dollar judgment, Judge Clay D Land

was promoted to the position of a Chief Judge of his District Court.

And, in that position he authored an opinion which I can only characterize as a menopause of the brain.

Because, the case IS about menopause.

Here is the name of the case.

Here is the complaint of Alisha Coleman, an African American middle-aged woman who is, while working, is struggling with the effects of menopause, same as many millions of American women do every day.

The complaint is trying to plead the case in the most clinical, sterile way, in the most politically correct language possible.

Yet, the facts of the case are messy and ugly - and I will present them as they were alleged, only without political correctness.

Alisha Coleman, a woman undergoing her menopause, worked for a federal contractor, provider of - guess what? - E-911 services!

And

I will translate.

Alisha Coleman's regular periods stopped, but once in a while she had breakthrough heavy bleeding and had blood clots dropping out of her.

Such bleedings can be sudden, unpredictable and very profuse.

And, as any bleeding, it can be a medical emergency, possibly a life-threatening emergency.

Let's see how much compassion Alisha Coleman got from her employer, a federal contractor, when such a sudden heavy bleeding happened to her at work.

When #AlishaColeman shared her very intimate condition with her supervisors, they expressed - concern about her health? no, of course, not - a concern that she needs this:

So - the proper thing to tell your employee who may periodically experience a medical emergency is to have enough stuff to mop her blood after herself.

Great people.

I wonder if any of them cared to look into what post-menstrual bleedings actually are, and whether commercially available "feminine sanitary devices" are able to "contain and absorb" a river of blood that may suddenly rush from a postmenopausal woman.

So, while working for this extraordinary compassionate employer, on one unfortunate occasion, Alisha Coleman had a sudden onset of that river of blood.

And, she bled so heavily that she "soiled an office chair".

Did her supervisor express a concern about her condition, took her to the emergency room to verify if she is ok?

Oh, no.  The supervisor has brought a DISCIPLINARY ACTION against a middle-aged woman for sudden heavy bleeding outside of her control, and was warned that if she ever "do that again" - meaning, if ever again a river of blood suddenly rushes from her, and she "soils" any other office furniture - she will be fired.

Apparently, the administration of the federal contractor never read the Americans with Disabilities Act requiring to provide reasonable accommodations for people with disabilities - and that would include some accommodations for Alisha Coleman, which could be as easy as discreetly purchasing a look-alike, but washable office chair for her to use. 

And - did Alisha Coleman "did it again"?

She did.

"Became episodic" is a politically correct way of saying - Alisha Coleman suffered once again from a river of blood rushing down her legs that was so profuse that it soaked through her pads, ran down her legs and onto the carpet.

In other words, they had an employee in the office who was bleeding so heavily that she bled onto the carpet.

Now, was THAT considered by the employer as a medical emergency in order to show the woman some compassion and bring her to the emergency room?

Apparently, not.

Instead, Alisha Coleman, in her condition, did this:

Think about it.

A middle-aged woman who had a likely emergency condition, thought not about her health, but how to clean the office carpet of her own blood with "bleach and disinfectant" in order not to be fired - for bleeding.

But, she was fired anyway.

And, Alisha Coleman sued.

And, Chief Judge Clay D. Land was "assigned" to her case.

Nobody can accuse Judge Land of lack of intelligence - especially when he achieved such a rare (rarest, in fact) thing as "the order of coif", having straight "As" in law school.

But, Judge Land, in order to make this egregious case of discrimination to go away, pretended to be dumb anyway: he first correctly summarized the facts of the case as alleged in Alisha Coleman's lawsuit,

but then engaged in bizarred unlicensed OB/GYN diagnostics:

• alleging that heavy bleeding from the uterus indicating the process by which the body stops its reproductive function, is not related to childbirth or pregnancy - see how this argument is contradicted in the appellate brief filed on behalf of Alisha Coleman by ACLU;
• comparing heavy bleeding, through pads and on the floor, with urine incontinence; and
• claimed that Alisha Coleman failed to allege that men were treated differently with urine incontinence than she was with her heavy bleeding.

Once again, an "order of coif" guy cannot pretend to be THAT dumb.

Moreover, it may be a shocking piece of news for Judge Land, but women have incontinence, too, so urine incontinence was not a medical condition unique to the male gender, while post-menopausal heavy bleeding is unique to the female gender.

And, since Judge Land dismissed the case at the pleading stage, without the benefit of discovery and expert reports, with his accounting and law degree, he was certainly not qualified to act as a unsworn expert OB/GYN, claim that post-menopausal bleeding is not "related to childbirth or pregnancy" within the meaning of the statute, or that it is comparable to incontinence.

So, Judge Land, without any compunction, claimed in his decision dismissing her lawsuit that the only way Alisha Coleman could claim discrimination under the Equal Protection Clause (that she was fired because of a medical condition unique for her gender) was if her condition would be related to childbirth or pregnancy - and concluded the bleeding that occurs when the woman's ability for pregnancy is winding down - is NOT related to pregnancy.

Follow the reasoning:

The statute says that a woman may not be discriminated against by her employer because of medical conditions "because of her sex" or "on the basis of sex", which, as the statute explained, "include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; ... 42 U.S.C. 2000e(k)".

This is a civil rights enforcement statute, and the rule of construction of such statutes is (1) broad, (2) liberal, and (3) to ensure that legislative intent is followed.

And the legislative intent was clearly to ensure that women are not discriminated against and certainly not fired because of their sex, including, BUT NOT LIMITED TO conditions that arise on the basis of pregnancy or childbirth, or "related medical conditions".

How could an "order of coif" judge not conclude that a uterine bleeding by which nature winds up the process of pregnancy and childbirth in a certain female is not "related" to pregnancy or childbirth - is a scientific wonder.

But he did.

Here is what this "order of coif" judge says, and this is a direct quote from his decision:

Here Judge Land could just end his atrocious self-embarrassment.  But, he felt the need to continue.

"Not terminated simply because she was "pre-menopausal or menstruating".

She did not allege that she was menstruating - she alleged that she was bleeding as part of the menopause, which is a completely different story and may be a medical emergency.

Women do not usually "menstruate" through their clothes, pads, down their legs and on the floor - it is may be an emergency bleeding, as in "losing blood", as in "bleeding to death".

Doesn't a person with an "order of coif" get that?

But, again, without the benefit of discovery and expert evidence, Judge Lance decided to act as an unlicensed OB/GYN and claim that she was simply "pre-menopausal OR menstruating".

In fact, claiming that Alisha Coleman was "or menstruating" was a statement directly opposite her allegations in the complaint, and thus a statement made by the judge on behalf of defendants, as their advocate.

But, that did not embarrass Judge Land enough either.

He rushed head on:

Dear sisters, American women.

Mothers, wives, childless women - does not matter.

The Chief Prick (not sorry) of the U.S. District Court of the Middle District of Georgia, a middle-aged man), considers it appropriate and not discriminatory if a woman is fired "for being unable to control the heavy menstruation and soiling herself and company property".

How callous and humiliating is that?

First, Judge Land, once again, falsifies the record by downplaying the facts and alleging that it was menstruation, not heavy (very heavy) bleeding - so heavy that Alisha Coleman bled onto the floor through the pads and clothes.

Next, Judge Land claims that now a woman may be fired for soiling HERSELF (and a piece of carpet) with HER OWN BLOOD during A MEDIAL EMERGENCY. 

To say that in an official document, a man and a judge must be a special kind of jerk.

But, Judge Land did not end his atrocious woman-hating and racist rant even at that, he had to continue.

Once again Judge Land is attempting to:

1. equate emergency bleeding with incontinence;
2. imply that incontinence is a medical condition attributable to male sex only; and
3. claim that alleging that in order to claim discrimination in being fired for sudden emergency bleeding on the floor in the office, a woman must somehow allege that incontinent males will not be fired under the same circumstances.

That last claim is, in fact, no less disturbing than the implied claim that a woman may be fired for an emergency bleeding - Judge Clay clearly implies that, if a federal contractor and an E-911 operator would similarly discriminate against a man for "allowing" himself to be suddenly and unexpectedly incontinent through a spillover of urine or feces despite precautions, and fires such a man, that would be ok, and Alisha Coleman then cannot sue for discrimination either.

Since Judge Land attributed emergency bleeding as BAD BEHAVIOR and a proper reason to fire a middle-aged woman, and an African-American middle-aged woman, I must add - who was herself an E-911 employee, by sad irony - can he now be IMPEACHED for bad behavior for his misogynistic rant in Alisha Coleman's case and for creating for employers in the State of Georgia a practical invitation to fire pre-menopausal women for their medical condition.

Even if he is not incontinent yet and did not soil any chairs in the courthouse.

Sick, sick man.

And, what bothers me, too, is why Alisha Coleman's complaint did not include discrimination under the Americans with Disabilities Act.

After all, I agree that in this case it is a gender discrimination.

But, it would have provided yet another basis for the lawsuit to proceed if Alisha Coleman would also claim that it does not really matter from which part of the body you suddenly bleed when you are fired for that sudden bleeding on the company chair - or carpet - from a wound on your body, from your nose, mouth, ears or from your uterus.  

Such firing is clearly still a discrimination against a temporary disability, and is equally reprehensible.

Alisha Coleman could have fell, struck her head and bled on the same floor.

Alisha Coleman could have nose-bled on the same floor.

She would have been fired, too?

One thing appears to be clear - Judge Clay D. Land has no place on the federal bench, nor should he remain a licensed attorney.

He is a disgrace to his profession.