Christine C. Anderson v The Appellate Division, First Department, Goes To Trial October 13, 2009

Thursday, April 30, 2009

Anderson's $10 Million Lawsuit Proceeds Against Corrupt Discipline Committee
Staff Attorney's $10 Million Lawsuit Proceeds Against Discipline Committee
The New York Law Journal by Daniel Wise - April 30, 2009

An attorney who was fired after working six years as a staff lawyer at the 1st Department's disciplinary committee may proceed with a $10 million damage lawsuit that she was discharged in retaliation for claiming her superiors were "whitewashing" cases, a Southern District of New York judge ruled Monday. However, the judge, Shira A. Scheindlin, (pictured at right) threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by the Office of Court Administration. Christine C. Anderson contended that her June 2007 firing was in retaliation for complaints she made to her superiors at the disciplinary committee that at least nine cases had been handled too leniently because the lawyers being investigated were politically connected or were represented by attorneys who had previously worked for the committee (NYLJ, Oct. 30, 2007). Anderson, who was born in Jamaica, also claimed the committee had discriminated against her on the basis of race, color and national origin. (See the Ethics Program were several of the Anderson Defendants are faculty).

The disciplinary committee operates under the aegis of the Appellate Division, First Department, and Anderson sued the OCA; Thomas J. Cahill, the committee's chief counsel during the years Anderson was employed there; Sherry K. Cohen, who became deputy chief counsel and Anderson's supervisor in 2003; and David Spokoney, the 1st Department's deputy clerk. With the exception of Cahill, who resigned in 2007 after 10 years in the post (NYLJ, July 23, 2007), the other individual defendants remain at their jobs. The 1st Department's disciplinary committee polices the conduct of attorneys practicing in Manhattan and the Bronx.

In allowing Anderson to proceed with her retaliation claim, Scheindlin found that her contention that the committee had "whitewashed" as many as nine cases touched upon a subject of public concern and was protected under the First Amendment. A jury will have to determine whether the defendants fired Anderson because of the concerns she raised or because she had been insubordinate, as the defendants contend, Justice Scheindlin concluded in Anderson v. State of New York, 07 Civ. 9599. Scheindlin noted that Anderson in a "host" of e-mails had made "evident" her "hostility toward" and "refusal to cooperate" with Cohen, her supervisor. Nonetheless, Scheindlin ruled that "a reasonable jury could find that the defendants refused to remove Cohen as Anderson's supervisor so they could use Anderson's inevitable resistance to Cohen's continuing supervision as a pretext for firing her."

PRECEDENT DISTINGUISHED

In concluding that Anderson's complaints touch upon matters of public concern, Scheindlin rejected OCA's argument that Garcetti v. Ceballos, 547 U.S. 410, a 2006 U.S. Supreme Court precedent, was controlling. The attorney general's office, which represented OCA and the individual defendants, contended that Anderson's First Amendment claim must be rejected under the authority of Garcetti. The Supreme Court rejected a First Amendment retaliation claim brought by a deputy district attorney who claimed he was fired because he recommended the dismissal of a case. The prosecutor had urged dismissal because a flawed affidavit was used to obtain a search warrant. Rather than raising an issue of public concern, Justice Anthony M. Kennedy wrote in a 5-4 ruling in Garcetti that the prosecutor was acting as a public employee with regard to an internal matter when he "fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case." Scheindlin found Anderson's case to be "patently distinguishable" from Garcetti. "The prosecutor in Garcetti spoke about a single case pending in his office," she wrote, while "Ms. Anderson spoke out about systemic problems at the [disciplinary committee], thereby making her speech protected." "Where a public employee's speech concerns a government agency's breach of trust, as it does here," she wrote, "the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions."

DISCRIMINATION CLAIMS FAIL

Scheindlin found that none of the three remarks that Anderson alleged Cohen made had any bearing on her bias claims. One alleged remark -- that the homeless are "smelly" -- did not reflect upon a group protected by federal civil rights laws, the judge ruled. The other two alleged comments -- that there are too many blacks in the subway and blacks were moving near Cohen's vacation home -- were not "directed" at Anderson, "unrelated to her discharge" and allegedly uttered about one year before her firing, Scheindlin wrote.

Anderson also presented deposition testimony from three present or former minority employees who had expressed views that Cohen was biased. Two of those witnesses, one of whom was a lawyer, expressed views that reflected subjective beliefs that are "devoid of any factual circumstances linking Cohen to any discriminatory conduct," Scheindlin found. The testimony of the third minority witness, Kenneth Van Lew, an investigator who left the office at the time of his deposition, provided "concrete instances in which he believes he was treated less favorably by Cohen than similarly situated Caucasian employees," Scheindlin wrote. But even though Van Lew's testimony provided "some credible evidence" of discrimination, the bias-based claims had to be dismissed, Scheindlin concluded, because "there is simply no evidence" that any alleged bias had tainted the decision of the ultimate deciding authority, the 1st Department's justices serving upon the court's Departmental Disciplinary Liaison Committee. The state defendants were represented by Assistant Attorneys General Lee A. Alderstein and Wesley E. Bauman. The attorney general's office did not respond to a request for comment. Anderson was represented by John A. Beranbaum of Beranbaum Menken Ben-Asher & Bierman.

CLICK HERE TO READ ANDERSON BACKGROUND, "Anderson Advances, Federal Jury to Hear 'Ethics' Corruption, Whitewashing"
Posted by Corrupt Courts Administrator at 3:25 AM
28 comments:

The VOICE of One of the related cases said...

Thank GOD Judge Scheindlin did the right thing regarding Anderson's case..Now there were
(6)cases that were marked related to Christine Anderson 's case that Judge Scheindlin dismissed. Some of these cases are currently pending in the Second Circuit Court of Appeals. These cases need to be remanded back to the District Courts, Judge Scheindlin.
April 30, 2009 4:34 AM
Anonymous said...

Can't wait to see what happens next. Let the s-- finally hit the fan and let these thugs get what the finally deserve!!!!!!AMEN
April 30, 2009 4:35 AM
Anonymous said...

A lot of nervous people at the "ethics" committee today. I love it.
April 30, 2009 9:13 AM
9th jd victim said...

A federal court around NY taking corruption seriously. Corrupt Nicolai to let go of his corrupt grip on law and order. Oh, what a beautiful day!
April 30, 2009 10:57 AM
victim of DDC said...

Anderson got it right. The DDC (1st Dept and more than likely all of them) is corrupt, the fix is alsways in. The foxes are in charge of the hen house. There is a conflict that no one wants to deal with but that's how they fix things. The whole thing should be removed from the control of the courts and attorneys. Independent non-attorneys should operate the ethics process, otherwise there are no ethics which is the situation we have now!
April 30, 2009 10:59 AM
disgusted state empl said...

God bless Anderson. If she speaks publicly, I will come forward. And boy do I have a lot to say about corruption within the NYS court system. Anderson had 6 years; I've had 22 years. You can't make up what kind of corruption I've witnessed.
April 30, 2009 11:33 AM
Anonymous said...

GOOD LUCK Christine Anderson!!!

April 30, 2009 10:30 PM
Anonymous said...

the DDC in Westchester Co. is a bad joke! They piss in your face and laugh at you and tell you to get lost! Lots of CORRUPTION here!
April 30, 2009 11:50 PM
Anonymous said...

See the article in today's NY Daily News about Cuomo's investigation into the NYS pension scandal. They are getting closer to Silver and have a close associate,Patricia Lynch,in their sites. Maybe they are going through the web of corruption, which is the politics of NYS.

Can't wait till it crosses over to the judiciary.

yeah.
May 1, 2009 9:26 AM
Anonymous said...

Eliot is correct..the absolute solution is for ALL OF YOU COURT EMPLOYEES...THERE ARE MANY...to come forward with your extensive knowledge and on site experience...and shake this system up.

I have stated before... that OCA will not fire more than one person at a time... because it appears too personal if they do..as the singular ones actually are, but OCA gets away with attributing them as work related.

All of you...esp the large number of women and female judges who have cowered over court discrimination for years and thus are guilty of permitting OCA to perpetuate these acts of terrorism..have an obligation to come forward to correct a system that could destroy your own children or family in the very near future!

There are women in upstate NY that want to come forward..but fear the evil and maniacal, administrative chief female judge of the 8th district and her select gang of female mobster supervisor hacks..that are terrorizing our community!

To you employees...I remind you ... you are but one lie and one political command away from losing your careers and homes.... and if that does not inflame you to assemble and work in unison to bring forth the information, crimes and discriminations that these" OCA Suppposed administrators of justice are violating daily in the faces of the left behind.. worthy state and federal court judiciaries, than there is nothing for you to do but accept the violent hostility you deal with in WNY year in and year out!

It is no longer time for you employees and judges to sit back and wait to see who else comes forward or to view the result of that one big, nasty and falsly charged federal court case..pending for 5 yrs (because OCA forced many employees to commit perjury and they fear that the community will soon become aware of this proof) that you all are cognizant of. The result show will shame many of you workers...liars or not!

Show some guts and clean out your community before they clean you out. Buffalo.... you know it is bad there...really bad....the feel to fix it is in the politics for the first time ever! Plumadore the devil is gone, so hurry up before the new chief puts in another monster of the law!
May 1, 2009 9:49 AM
Anonymous said...

To the above...

There are 59,700 tips/complaints.. Obviously people are coming forward..

Where else should they go??

Do we have a special prosecutor assigned yet??

The U.S. Attorneys have been a waste of time..
May 1, 2009 10:17 AM
Anonymous said...

Speaking of which.. wasn't the Brevetti in the Cuomo article mentioned above, a U.S. Attorney???
May 1, 2009 10:28 AM
Anonymous said...

SDNY US Attorney is and has been a do nothing outfit. People come in with a case all prepared and hand it to them, they may think about it, but not too hard, them they blow you away. They all suck! And the sad thing is we pay taxes for this! What value do we get - NOTHING but BS.
May 1, 2009 1:20 PM
Anonymous said...

In California the AG went after N.Y lawyer Mel Weiss. Spitzer the AG did nothing.
Someone should make the fact that Spitzer and now Cumo look the other way when it comes to prosecuting these people.
Cuomo should have investigated the Anderson case and the Allen Issac case.
Instead he looked the other way.
The least he should have done was ask for a special outside prosecutor.
I wonder if he would prosecute them if he was not getting money from laywers when he runs for office.
I thought campaign election reform would help, a lobyist then told me that they would play a shell game.
The lawyers would pay orginizations to endorse a particular canidate.
May 1, 2009 1:52 PM
Anonymous said...

This blog may have gotten tips...but the employees of OCA, WNY have not come forward with ANY legal action OR INFORMATION enmasse to force the local MEDIA AND FEDERAL AG in Buffalo, where the paper has a readership of about 300,000,one of the largest in the nation...to properly investigate and inform those citizens who are not privy to court activities or politics of this criminal entity, that has clouded the judicial system in WNY!

The Buffalo News knows the pending federal court case is an OCA scam..but it is only one case( OCA has threatened and fired anyone associated with this person and the employees fear for their jobs and their lives) and the News doesn;t want to stink up WNY with one complaint! I guess 2 or more makes for more credible reader believability!

It is important for a group of people within the system to come forward, to force the Buffalo News and the FBI into investigating.

Both of these groups do not want to expose the disgusting NY courts to the public or the criminals who already have little respect for them...and who will then observe excellent employees fired over political whims and citizens transcripts altered to secure convictions..and that may just create another ..... Attica.

These two operations only function when the public is up in arms...not one member!

"Employee action" for civil rights violations is an established situation for federal court...and the ones that will permit illegal court activity to be revealed...ask Ms. Anderson. These are the cases that are the front door manifestations!
May 1, 2009 3:03 PM
Anonymous said...

Most of the people who would like to do something don't have the wherewithal to the bring suit.. and/or may feel alone in a given county.

I know in my County there were a number of people affected by the biased against women/fixer Judge..

some are known, and perhaps waiting for the right time...

a small ad in the pennysaver might bring more out... (a cheap and effective educational tool)..

the paper doesn't want to run it?? sue them for discrimination... ;)
May 1, 2009 3:22 PM
Anonymous said...

Isnn't this stuff with the OCA covered by the Whistleblower Act?
May 1, 2009 5:04 PM
Galison said...

Is Cuomo complicit?

Consider this:

I hand delivered the following to Cuomo and two of his assistants and have received NO RESPONSE

The complaint regards a conspiracy of several top mafia lawyers with two Supreme Court Judges to steal the transcripts of my case.

Later it was established that Lippman was personally involved in the whitewash of disciplinary complaints against the guilty lawyers. Cuomo actually assigned one of the judges I complained about to investigate the Merrill Lynch fiasco.


Ms. Nina Fass
Assistant Attorney General
Office of The Attorney General
120 Broadway 22nd floor, NY 10271

October 12, 2008

Re: Concealment of Public Documents by Supreme Court Judge Herman
Cahn, with the Collusion of Judges of the Supreme Court and Appellate Division,
First Department and the First Departmental Disciplinary Committee, and the State Commission on Judicial Conduct, for the Benefit of the Law Firm of Richard Ware Levitt and Gerald Lefcourt.

Dear Ms. Fass,

Thank you again for your attention to the details of my complaint. While I encourage you to contact my lawyers, please be aware that they are not directly involved with my complaints against the individuals and agencies discussed below. They possess neither the information nor the documentation required to adequately assess my complaints.

Our Conversation of 10/10/09

On 10/10/08 we spoke about the allegedly illegal withholding by Judge Herman Cahn of public records, specifically transcripts of an ex parte meeting at which a restraining order was placed against me, to the benefit of the Attorney Leon Friedman, his firm, The Law Offices of Richard Ware Levitt, and their clients. We also discussed the sequence of acts by judges of the Supreme Court and the First Appellate Division as well as the DDC and CJC, which abetted Judge Cahn’s allegedly illegal withholding of public records.

On several occasions you asserted that simply by pronouncing on the record that court records be sealed, Judge Cahn could legally and bindingly seal those records, even against a party in the instant case. I argued that by virtue of Rule 216.1 a judge could not. Similarly, if a Judge imprisons a person without obeying the judicial rules regarding due process, he commits the crime of “unlawful imprisonment”. Judge Cahn’s concealment and/or destruction of the transcripts of the 12/7/09 conference without regard to Judicial Rule 216.1 is in violation of, without limitation, the criminal laws listed on page four.

The Sealing of Court Documents By New York State
Supreme Court Judges is Strictly Regulated by Rule 216.1

It is within a Judge’s discretion to grant or deny a motion to seal Court Records filed by one or more parties if he adheres to Rule 216.1 It is NOT within a Judge’s discretion to seal a court records if he does NOT adhere to Rule 216.1, or if no motion is filed.

Uniform Rules for N.Y. Trial Courts. Rule 216.1. Sealing of Court Records. “Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.” (Section 216.01, Uniform Rules for N.Y.S. trial courts)

Judge Cahn Violated Every Precept of Rule 216.1: He Did Not Provide a Written Finding of Good Cause, and He Did Not Consider The Interests of The Parties or The Public.

As I pointed out to Judge Cahn, Judge Silbermann, Judge Lippman, the DDC, the CJC; Judge Cahn did not follow a single precept of Rule 216.1.

- Judge Cahn did not produce a written finding of good cause, or even a verbal finding of good cause, despite numerous letters requesting that finding of good cause. This fact alone invalidates his claim that the court records were “sealed”.

-Judge Cahn did not consider the interests of the public:
-
The “public interest” is strictly defined as the public’s Constitutional Right to obtain the documents. The sealing of public records is by definition against the public’s interest. According to George Carpinello (Chair of the New York State Advisory Committee on Civil Practice- the body that drafted 216.1): “The public’s qualified right of access to court records and proceedings is derived from the First Amendment of the U.S. Constitution, New York’s comparable constitutional provision, and the common law. The First Amendment gives the public a qualified right of access to those judicial proceedings in which 1) the public has traditionally been given access and 2) in which public access “plays a significant positive role in the functioning of the particular process in question.”” Judge Cahn wrote: “Pursuant to Uniform Rule 216.1… A balancing of those wishes [of the parties] against the public interest is required. A [written] finding of good cause is necessary in order for a record to be sealed.”

-Judge Cahn did not consider my interests:

It cannot be argued that I have an interest in NOT knowing why an illegal restraining order was placed on me. My interest is to know what happened in that ex parte meeting from which I was excluded. Furthermore, there is no circumstance under US law where a person can be accused and sanctioned without due process, or where transcripts can be sealed from a party in a case.

-According to Mr. Friedman, Judge Cahn did not consider the interest of the opposing party. In a sworn statement to Judge Silbermann, Mr. Friedman wrote:

“I affirm under penalties of perjury that I have no knowledge of any such secret transcript… If a transcript of the December 7, 2005 with Judge Cahn exists, we of course have no objection to its being released to all parties.”

If Mr. Friedman is not lying (under penalties of perjury), then neither party- nor the pubic- has an interest in sealing the transcript. The only party benefiting from the sealing of the transcripts is Judge Cahn himself, to cover up his illegal ex parte meeting and his illegal restraining order. However, it is obvious that Cahn committed these illegal acts for the benefit of Mr. Freidman and his clients, as they were the sole beneficiaries of those acts.

A Motion to Seal (With a showing of Good cause) is Required Before
a Judge Can Seal Court Records, But No Motion was Made by Either Party.

Sealing of Documents is necessarily instigated by a request of one or both parties. In this case neither party requested confidentiality. Mr. Carpinello writes: “New York courts have interpreted the rule pertaining to the sealing of court records as requiring a two-step analysis for determining a motion to seal. The first step is a showing on the movant’s part that there is good cause to seal the record. Only after good cause is shown does the court engage in a balancing process, weighing the movant’s cause for sealing against the public interest in access to court documents”.

If Mr. Freidman and his colleague Ms. Stryker were unaware of the existence of the court records and have no objection to their dissemination to all parties, and I was not even present, who showed good cause on a motion to seal? Who made a motion to seal? There is no record of any such motion being filed by anyone.

Judge Cahn Understands Rule 216.1

In our conversation, you asserted that if Judge Cahn “inadvertently” violated certain parts of Rule 216.1, his sealing of the documents may still be valid. Apart from the fact that ignorance of the Law does not excuse its violation, consider what Judge Cahn himself wrote about 216.1. In L.K. Station Group, LLC v. Quantek, Judge Cahn writes:
“the presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access”. To grant a sealing order, a party must show, "with respect to each specific document which it seeks to have sealed," that "good cause" exists to seal that particular document”. Citing Matter of Hofmann, 284 AD2d 92 (1st Dept. 2001), Cahn agreed with L.K. that the "First Department rejects wholesale sealing of motion papers, even when both sides to the litigation request sealing." Since sealing of court papers only is allowed to further "compelling objectives," such as the need to preserve trade secrets, the court "is required to make its own inquiry to determine whether sealing is warranted," he added. To grant a sealing order, a party must show, "with respect to each specific document which it seeks to have sealed," that "good cause" exists to seal that particular document, and that "there is no feasible alternative to sealing," wrote Judge Herman Cahn. (see: Bid to Seal Records in $2.5 Billion Lawsuit Rejected, by Noeleen G. Walder
, New York Law Journal
, August 14, 2008)

By Confiscating and Withholding the Court Records Without Regard to
Rule 216.1, Judge Cahn Effectively Stole the Records In Order to Avoid
Responsibility For an Illegal Ex Parte Meeting and an Illegal Restraining
Order both Made the Sole Benefit Of Leon Friedman, His Firm and his Clients

In light of the above Judge Cahn has violated the following New York State Penal Codes:
§ 195.00 - Official misconduct. (class A misdemeanor).
§ 195.05 - Obstructing governmental administration in the second degree. (class A misdemeanor)

§ 145.14 - Criminal tampering in the third degree. (class B misdemeanor).

§ 175.20 - Tampering with public records in the second degree. (class A misdemeanor)

§ 175.25 - Tampering with public records in the first degree. (class D felony)

§ 215.40 - Tampering with physical evidence. (class E felony)

The Other Parties Named Conspired to Abet The Felonies
and Misdemeanors of Judge Cahn and Mr. Friedman by the
Following Acts, All for the Ultimate Benefit of Leon Friedman and His Firm:

- Judge Silbermann violated her mandate to enforce Rule 216.1 and violated my Rights by refusing to compel Judge Cahn to follow Rule 216.1 and requiring me to file a motion.

-Judge Fried violated my right to Due Process by denying my motion to receive the transcripts with prejudice without considering the merits.

-The CJC violated my right to a fair trial by failing to recuse Richard Emery, longtime friend and associate, and attorney of Mr. Friedman, and allowing him to adjudicate my case against Judge Cahn. They also failed to view any evidence against Judge Cahn.

-The DDC violated my rights by lying about the jurisdiction of Mr. Friedman and thereby refusing to process my complaints against him for three years, including complaints that would have disqualified him from the underlying case, such as tampering with evidence.

-The First Appellate Division violated Judicial Law § 118 by refusing to refer Mr.
Friedman to the Disciplinary Committee despite proof of registration fraud.

The Attorney General Must Investigate This Pattern of Corruption by NYS Judges

Will the Attorney General’s Office add its name to this systematic chain of corruption for the sole benefit of a Partner in New York State’s most notorious Mob Law firm? If the Attorney General’s Office fails to investigate documented crimes committed by the Judiciary for the illegal protection of Mafia Lawyers and their clients, they are neglecting their duty to protect the public, and the State of new York at the mercy of gangsters and thugs.

By pursuing Justice in this case I am risking my life. If all of these Judges and Agencies are willing to break the law in order to protect Mr. Friedman and his firm, the stakes must be very high for all concerned. Mr. Ware Levitt and his firm have already severely damaged my livelihood by tortuous and criminal means in the underlying case. Their current clients include the most ruthless Mafia hit-men alive. The concerted illegal acts of the Judiciary against me, make it obvious that I am entirely outside the protection of the law and the courts. That is why I need protection from you. Otherwise, what justice can my survivors expect if my body washes up on the shore of the Hudson River?

Sincerely,
Cc:
Hon. David Paterson
George Carpinello Esq.
Neal Brickman Esq. William Galison
Rep. Jerrold Nadler
Sen. Tom Duane
AG Andrew Cuomo
May 1, 2009 7:51 PM
Anonymous said...

Read the Shira work of art and fail to see the CORRUPTION issue? Am I missing something? Can someone help me out on this?
May 1, 2009 8:47 PM
Anonymous said...

The Office Of Court Administration will and has lied about everything you could imagine or not imagine!

They have laws they must process for the "people" of the State of NY...but they themselves feel entitled to ignore and violate them when it comes to their agendas... those of the holy justice system promoting it's real work ethic... the infestation of drugs, sex, money and power!

Transcripts from "certified" court reporters are as worthless as hearsay...but the NY taxpayer pays these slugs... 6 figures to purposely falsify their contents so their employer..OCA...can have any result they wish with the lives of all NY state citizens. Do court reporters ever wonder if their family members would have to go before a judge who commands an alteration of the family member's transcript...what it would feel like if they were innocent and the transcript officially states otherwise? I do....and it is life altering! And the killer is that the Judges want raises, as they request court reporters to commit more of these crimes of falsifying court records... all taken under oath? You may as well just unsolemnly swear...because neither has any credance!

We terrorized citizens allow this to continue and throw up our arms and state...we don't have the ability or savvy to file actions in federal court..even though we are court trained...highly paid employees.

The internet and pro se actions are too difficut to comprehend for us in the justice business...because we got our jobs from politics and not tests or ability.

All this insanity gets reported on this blog daily and the US Government just turns it's block heads and waits for the great judicial crash to destroy what little we have left of this "once" great country!
May 2, 2009 8:43 AM
Anonymous said...

The Christine Anderson case is all about corruption. So when will the federal authorities reveal this corruption?
May 2, 2009 11:40 AM
Anonymous said...

The feds words are empty, with no follow through! More BS
May 3, 2009 10:57 AM
Anonymous said...

Flush the DDC down the toilet, it's the only way to stop the corruption.
May 4, 2009 10:57 PM
Anonymous said...

DDC dismises case that involved/ blatant theft. I now know what everyone on this site is saying about corruption in the DDC. They actually twisted the complaint to fit their dismmisal letter. What is my next step?
July 4, 2009 9:25 AM
Anonymous said...

They do discriminate
Census shows that 28% Hispanic
26% African American 9.8 % asian
they have only 1 asian 2 or 3 Hispanic. 2 or 3 African American
It is a joke to say that they do not discriminate
Good luck Christine.
August 19, 2009 11:09 AM
Anonymous said...

Court Reporter at a trial, I was denied the right to a court reporter at a trial in Erie County Court, yep, judge said I could not have a court reporter........
so it makes sense why the jury was told I had diseases I do not have, no experts, no witnesses,
I was not even allowed to view my file..........that is because they are passing around false medical information, so my lawyers file

false bill of particulars...........
so I am allowed a false trial
an inqusition
a witch hunt

then I am threatened to sign on the line............

stick it!

Public Corruption at its finest in the 8th..........
August 20, 2009 9:55 AM

From Betsy Combier: The First Department has been questioned before:

894 F2d 512 Mason v. Departmental Disciplinary Committee Appellate Division of the Supreme Court of the State of New York First Judicial Department:

894 F.2d 512

C. Vernon MASON, Plaintiff-Appellant,
v.
DEPARTMENTAL DISCIPLINARY COMMITTEE, APPELLATE DIVISION OF
THE SUPREME COURT OF THE STATE OF NEW YORK, FIRST
JUDICIAL DEPARTMENT: Office of Chief
Counsel, Defendants-Appellees.

No. 545, Docket 89-7918.

United States Court of Appeals,
Second Circuit.

Argued Oct. 4, 1989.
Decided Jan. 16, 1990.

Stephanie Y. Moore, New York City (William M. Kunstler, Ronald L. Kuby, New York City, on the brief), for plaintiff-appellant.

James G. Greilsheimer, New York City (Alan M. Klinger, Joseph J. Giamboi, Stroock & Stroock & Lavan, New York City, on the brief), for defendants-appellees.

Before NEWMAN, PRATT and MAHONEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

C. Vernon Mason, a lawyer, appeals from the August 24, 1989, judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) dismissing his complaint, which sought to enjoin an investigation of him by a state court disciplinary committee looking into possible violations of the Code of Professional Responsibility. The District Court concluded that the complaint failed to allege circumstances sufficient to warrant an exception to the abstention doctrine as enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and, more particularly in the context of lawyer disciplinary matters, in Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). We affirm.

Background

In June 1988, the Departmental Disciplinary Committee of the New York Supreme Court, First Judicial Department ("the Committee"), which is the appellee here, began an investigation of Mason on its own initiative, acting pursuant to N.Y. Rules of Court Sec. 605.6(a) (McKinney 1989). The Committee acted in response to numerous inquiries and allegations it had received concerning Mason's conduct in connection with his representation of Tawana Brawley. Brawley had become the center of a controversy arising out of her claim that a group of men had abducted and raped her. In the course of the controversy, the Governor of New York appointed the Attorney General, Robert Abrams, as a special prosecutor to investigate Brawley's claim. Abrams convened a special grand jury, which sought unsuccessfully to obtain testimony from Brawley and her mother. Ultimately the Grand Jury issued a report concluding that Brawley's claim was without basis in fact.

During the course of the Grand Jury's inquiry, the Committee had notified Abrams that it had begun an investigation of Mason and had requested that relevant materials be produced after the Grand Jury completed its work. When that occurred, Abrams announced that he would request the appropriate disciplinary committees to consider disciplinary proceedings against Brawley's advisers, including Mason. In an October 6, 1988, letter to the Committee, Abrams detailed the respects in which he believed Mason had violated the Code of Professional Responsibility. In an October 14, 1988, letter to Mason, the Committee informed him of its investigation, enclosed a copy of Abrams' October 6 letter, and asked him to respond by November 4 to the allegations of professional misconduct in Abrams' letter.

Lawyers purporting to represent Mason twice asked the Committee for an extension of time to reply; both requests were denied. One of these lawyers submitted a response to the Committee on November 4. Thereafter new counsel for Mason wrote the Committee to ask for a return of the November 4 response; this request was denied. In subsequent correspondence, the Committee informed Mason that one of his lawyers, Stephanie Y. Moore, Esq., could not represent him as she was not admitted to practice in New York.

Mason then began a series of actions in state court. On December 5, 1988, he moved in the Supreme Court for disclosure of the Grand Jury minutes; this motion was denied. On December 8, the Committee again told Mason that he could not withdraw his response, but gave him until January 9, 1989, to file a supplemental response. On December 20, 1988, Mason began an Article 78 proceeding in the Appellate Division, seeking an order requiring the Committee to grant him a further extension and to recognize Moore as his lawyer. On January 5, 1989, Mason began a second Article 78 proceeding, seeking an order directing the Committee to cease its investigation and to disclose communications concerning the investigation between Abrams and the Committee's then chief counsel, Michael A. Gentile. On February 22, the Appellate Division ruled in both proceedings. The Court granted Mason 60 additional days to respond to the Committee, allowed Moore to appear for Mason upon filing a proper application for pro hac vice admission, and dismissed the second Article 78 proceeding. Leave to appeal to the Court of Appeals was denied.

Prior to the extended date for filing his response with the Committee, Mason filed the instant lawsuit in the District Court. The parties stipulated to defer Mason's response until disposition by the District Court. The federal court complaint asserted, among other things, that the action of the Attorney General in disclosing his allegations of unethical conduct by Mason and the Committee's "solicitation" and "adoption" of the Attorney General's "complaint" deprived Mason of his rights to due process of law and impaired his First Amendment right to freedom of speech.

Since Mason's claim for federal court intervention relies on developments concerning the resignation of the Committee's chief counsel, those developments must be elaborated. On January 23, 1989, Gentile resigned at the request of the Honorable Francis T. Murphy, Presiding Justice of the Appellate Division, First Department. On that date Justice Murphy released a report explaining why he had requested the resignation. The report mentioned deficiencies in Gentile's administration of various matters in his office, including the Mason investigation. On February 16, the Honorable Sol Wachtler, Chief Judge of the New York Court of Appeals, directed the First Department to make an inquiry concerning the Gentile resignation and "promptly do whatever is necessary to maintain the dignity, respect and integrity" of the Court and the Committee. N.Y. Law Journal, Feb. 16, 1989, at 1, col. 3. Justice Murphy appointed four justices of the Appellate Division, First Department, to conduct the inquiry. All twelve of the associate justices of the First Department participated in the questioning of witnesses during the inquiry. On April 28, the Appellate Division released a report, concurred in by all but one of its members. Among other things, the report concluded that no member of the Court had participated in the investigation of any disciplinary matter. Chief Judge Wachtler, on behalf of the Court of Appeals, issued a letter to the Appellate Division, expressing satisfaction that the objectives of the inquiry process had been met.

The District Court denied Mason's motion for a preliminary injunction and dismissed the complaint on abstention grounds. The Court heard oral argument but denied a request for an evidentiary hearing. A panel of this Court granted an expedited appeal and stayed the Committee's efforts to obtain further information from Mason. After receiving the parties' briefs and hearing oral argument, this panel vacated the stay.

Discussion

Appellant acknowledges the pertinence of Younger abstention to attorney disciplinary proceedings, see Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. at 432-35, 102 S.Ct. at 2521-22, but contends that his complaint sufficiently alleges "bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate," id. at 435, 102 S.Ct. at 2523. He contends that he lacks an effective opportunity to assert his constitutional claims because the Committee is biased and is "jurisdictionally incompetent" to adjudicate his allegations of official misconduct. He also contends that he has no opportunity for effective judicial review within the state court system.

Mason's allegations of bias do not set forth circumstances that warrant federal court intervention. See Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975). Contrary to his assertions, the Committee is not disabled from proceeding because it sought evidence of his possibly unethical conduct from the Attorney General nor because the Attorney General aired his allegations against Mason. Moreover, Mason mischaracterizes the situation in contending, as evidence of bias, that the Committee has "adopted" the Attorney General's "complaint." Thus far, the Committee has not filed any charges against Mason. See N.Y. Rules of Court Sec. 605.12. It is conducting an inquiry to determine whether to file charges. In doing so, the Committee is entitled to seek evidence that the Attorney General may have. The Committee does not disable itself from proceeding by requesting a response from Mason as to the matters raised by the Attorney General nor by alerting Mason to the general scope of the requested response through the device of sending him the allegations made by the Attorney General.

Nor is bias shown by the allegations concerning the resignation of Gentile, the role of Justice Murphy in such resignation, or any state inquiry into such matters. It is wholly speculative for Mason to conclude that the members of the Committee or its current staff have prejudged him, or are incapable of impartially deciding whether to initiate formal proceedings and, in that event, of conducting them fairly. Finally, no sufficient claim of bias is shown by the fact that the Committee has rejected Mason's claim of bias, nor by the state courts' refusal to halt the Committee's efforts to ascertain whether grounds exist for formal charges. Obviously state forums do not disable themselves from investigating and adjudicating matters simply by disagreeing with accusations made against them.

Mason's further point that the Committee is unable to adjudicate many of his allegations is partly irrelevant and partly mistaken. To the extent that he faults the Committee because it will not adjudicate his allegations of misconduct by other persons, his point is irrelevant to the propriety of the Committee's inquiry into the allegations against Mason. The Committee is not disabled from proceeding because it declines to make the Mason inquiry an occasion for assessing the lawfulness of others. To the extent that Mason has legitimate defenses to any charges that may be brought against him, he will have an opportunity to assert his defenses in appropriate New York forums. See Turco v. Monroe County Bar Ass'n, 554 F.2d 515, 519 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 95 (1977); Anonymous v. Association of the Bar, 515 F.2d 427, 432 (2d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Erdmann v. Stevens, 458 F.2d 1205, 1211-12 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972); Matter of Capoccia, 59 N.Y.2d 549, 553, 466 N.Y.S.2d 268, 269, 453 N.E.2d 497, 498 (1983); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 509, 393 N.Y.S.2d 961, 964, 362 N.E.2d 592, 595 (1977).

Mason's assertion of the futility of judicial review through the state court system has two components. His first point echoes his claim of bias by asserting that state court review is futile because he has thus far not prevailed in his effort to halt the Committee's inquiry. In fact, his recourse to the state courts has demonstrated that those courts are fully prepared to rule favorably on his meritorious assertions. Their refusal to halt the inquiry at its incipient stage provides no basis for believing that they will be reluctant to entertain any legitimate objections Mason may have in the event that disciplinary sanctions are improperly imposed.

Mason's second point is that state law does not permit judicial review of one possible step the Committee might take--the issuance of a letter of caution. See N.Y. Rules of Court Secs. 605.6(e)(3), 605.7, 605.8. He relies on Parker v. Commonwealth of Kentucky Board of Dentistry, 818 F.2d 504 (6th Cir.1987), for the proposition that Younger abstention is not warranted where the opportunity for judicial review "is contingent upon the type of disciplinary action taken." Id. at 509. Parker concerned an absence of judicial review of all the available disciplinary sanctions except the sanction of license revocation. By contrast, under New York's procedures, all actions characterized as disciplinary are subject to judicial review. A letter of caution "does not constitute discipline by the Committee." N.Y. Rules of Court Sec. 605.8(b)(2)(ii). Of course, a state may not employ labeling to insulate from judicial scrutiny adverse action that impairs constitutionally protected rights. If it should develop that a letter of caution is issued under circumstances where such action impairs Mason's federal rights, we are not foreclosing federal court scrutiny. But the possibility of such an eventuality is too speculative to warrant a relaxation of Younger abstention requirements.

In sum, Mason has alleged no circumstances that show that the Committee or the state courts are proceeding against him in bad faith or harassing him, nor has he alleged any other valid grounds for an exception to Younger abstention. The District Court was entirely correct in its conclusion that Mason's complaint did not require an
evidentiary hearing and that the complaint should be dismissed.

The judgment of the District Court is affirmed.

* 894 F.2d.

From Betsy: see also the Drier case