Joan Lobis, New York Supreme Court

Mr. Robert Tembeckjian, Counsel
NYS Commission on Judicial Conduct
61 Broadway,
New York, NY 10006-2705

July 28, 2010

Re; JOAN LOBIS, A Justice on New York State Supreme Court;
In the matter of: TESSA MASON v REYNOLD MASON, index # 401889/03

Dear Sir:
I write to bring to your attention, conduct on the part of Hon. Joan Lobis that I think merit your consideration and attention.

BACKGROUND
Hon. Lobis presided in my divorce action and the motions and hearings that gave rise to the issues complained of here, arose in the course of hearings on subsequent motions before the justice in connection with the enforcement of the judgment of divorce. In 2007 my ex- wife by motion for contempt sought to enforce the order of support entered in Family Court and incorporated in the divorce judgment. The order directed me to pay the sum of $1317.00 for the support of the three children of the marriage and $300.00 bi weekly for spousal maintenance.
On December 1, 2004 Justice Lobis issued on order denying my motion for downward modification. The decision came after my appeal of my removal had been denied. The order also refers to the fact that I had been suspended from practice effective October 2004. The stated reason for denying the motion to reduce the amount of support was, that I had not demonstrated efforts to find employment. My attorney had omitted to include my affidavit detailing my efforts to find gainful employment. (A copy of the unsigned affidavit is annexed hereto Exhibit B) Neither my attorney nor I was aware of the omission until we received the court’s decision. The contempt motion brought by my ex-wife was to enforce that order of support. I learned of the contempt motion from friends who had seen newspaper articles on the matter published in the New York Daily News. From those articles, I learned that a hearing had been held and the matter adjourned for plaintiff to provide proof of service.

THE INITIAL HEARING
I then moved by Order to Show Cause for a stay and vacatur of the warrant on the ground that the court lacked jurisdiction because moving papers had not been served upon me, and cross moved for modification of the order of support. I requested a traverse hearing. The court vacated the warrant on condition that I post the sum of $150,000.00 not later than the date fixed for hearing my motion. In May 2007, I flew to New York from Atlanta to attend the hearing. Prior to the commencement of the hearing, after the parties had noted their appearances, the court inquired whether I had deposited the sum directed by the order. When told that I had not, the court summarily ordered my arrest and incarceration, then adjourned the hearing on jurisdiction to a later date. I was cuffed, searched and was incarcerated while awaiting a hearing scheduled some two weeks later.
Point 1
By arresting and incarcerating me in the absence of jurisdiction and without a hearing, justice Lobis extended the court’s authority beyond proper limits and knowingly acted contrary to relevant provisions of law.

The provisions of law and cases rendering the court’s authority a nullity when it acts without jurisdiction are so well settled as to require no citation of authority. It is in essence that once jurisdiction is challenged, the court cannot proceed where it clearly appears that it lacks jurisdiction. The court has no authority to reach the merits , but rather should dismiss the action. Melo v US 505 F2d 1026. Where the issue is in doubt, the court must hold a traverse hearing and jurisdiction must be established before proceeding to hear the merits of the action. The issue of lack of jurisdiction was clearly raised by my moving papers. In fact, opposing counsel in his responsive papers conceded that I was entitled to a traverse. The record shows that plaintiff did not file proof of service on the return date of her motion and the matter was adjourned to afford the plaintiff an opportunity to file an affidavit of service.

A cursory review of the affidavit later filed in court indicates that the document is insufficient on its face. The marginal notes indicate a series of communications between the plaintiff and the Georgia sheriff who allegedly served the papers to wit: “I serve so many of these papers I don’t recall this”. The notes also indicate that the sheriff returned to the address indicated in the moving papers. He writes in the margin: “Returned to the address but found the house vacant and a for sale sign in the upper window”. Part of the description of the person served reads; “might wear glasses”. The document was transmitted to and from the Westbury Public Library. My ex-wife, the plaintiff, resides at Rutland Street two blocks from the Westbury Memorial Public Library 445 Jefferson Street, Westbury, New York, 11590 fax: 516.333.1752. The affidavit of service is handwritten in what I recognize as my ex- wife’s handwriting.
Point 2

A judge for many years, Justice Lobis should have recognized the lack of jurisdiction that a cursory examination of the affidavit discloses. She acted in the clear absence of jurisdiction. No reasonable judge would have found that the court had acquired jurisdiction under the circumstances and without a traverse hearing. Justice Lobis was aware that her action in proceeding where jurisdiction had been challenged was contrary to relevant law.

At the hearing on the motion, (held on June , 2007) the judge offered a traverse hearing on condition that the testimony of the Georgia process server be taken by telephone. When my attorney declined, the judge responded “then you will have to take it up on appeal”.
The judge acted in a manner inconsistent with her obligation to promote public confidence in the integrity and impartiality of the judiciary and to be faithful to the laws as required by the rules, (Rule 33.2a). As a result, I was denied due process of law and incarcerated for over four months.

The Modification Hearing
Point 3

The Judge abused her discretion in denying the motion for downward modification where the change of circumstances was conceded and there was no countervailing testimony with respect to my efforts to find new employment.

The facts establishing the unreasonable and unanticipated change of circumstances alleged in my affidavit were established by a fair preponderance of the evidence. The change of circumstances, my removal from the bench, was cited by this judge in her prior order denying my previous motion for downward modification. (Order Attached) My testimony as to my efforts to find employment is essentially set forth in Exhibit A. In addition, I testified about my relocation to Georgia in search of new opportunities, my employment as a realtor in Georgia, my earning of $52,000 in 2006 and, the crash of the real estate market and my consequent reduction in earnings. My highest income since losing my previous employment, was 62% less than my previous salary of $137,000.00. In the absence of any countervailing testimony or evidence to the contrary, justice Lobis denied my motion for downward modification. Section 413 of the Family Court Act and DRL section 240 require modification when there is an unanticipated change of circumstances. Because that issue in not disputed, the only issue was my efforts to find employment, as Judge Lobis herself had said in her prior decision denying my motion for downward modification.

The Defense of Bankruptcy
Point 4
The judge disregarded my defense of bankruptcy to part of the plaintiff’s claim, in direct contravention of law.

In my moving papers, I asserted a claim of discharge in bankruptcy. On direct, I testified as to the filing of the bankruptcy petition and of the discharge of the claim under docket #1883982 in the federal bankruptcy court , Atlanta, Georgia. On hearing my testimony related to my bankruptcy, the record will reflect that judge engaged in a diatribe, denouncing me and implying that I had engaged in fraud and, threatening to report me to the federal authorities. She entered judgment without regard to my claim and without any mention of it in her decisions or orders.

Improper Comments
Point 5

Judge Lobis manifested in word and conduct a clear bias toward plaintiff and prejudice toward me. The judge made the following improper comments in the course of the proceeding:

“Thirteen dollars an hour that’s all he earns……” when told that I worked part time grading papers.

“I’ll entertain a motion to order him to release the money to you……” on being told that members of the public in my former district had set up a legal fund in the custody of my attorney to assist me. The fund contained $33,000.00.
“After six months we’ll go to plan B Mr. Mason…..” On overhearing my comment to my attorney that I’ll do the six months rather than consent to stay in New York .

The October 31, 2007 Hearing
Point 6

The judge acted with such punitive and improper intent that I dreaded making further appearances before her. Her conduct and demeanor led me to believe she would order me incarcerated if I did not have employment before the next appearance.

Upon ordering my release from jail, judge Lobis ordered me to return to court in 30 days to report on my efforts to find employment. On the return date, October 31, 2007, as the parties sat at counsel table prior to the start of the hearing, the judge inquired whether I had found a job. On being told I had not she said “we’ll have to put him back in jail” and thereupon requested her court officer to call the sheriff. Opposing counsel came to my defense. He told the judge that thirty days to find a job was not sufficient time and asked her to allow me to go back and try and to report back to court in 30 days.

Possible extraneous influences

Judge Lobis may have been motivated by outside pressure to act and rule contrary to law. At the time of my hearing the National Organization for Women had launched a campaign against the judge alleging that she was unfair to women, and calling on the Chief Judge to launch an investigation. (Exhibit B). In addition, the presence of a news reporter who had penned unflattering articles titled “Misguided black robes” naming alleged victims of the judge was present at every hearing on this matter .

Conclusion
The judge failed to maintain the role of neutral and detached arbiter. Viewed in its totality, the conduct of justice Lobis demonstrates a pattern of indifference to the rights of this litigant. The proceedings bore scant resemblance to the procedures required by law. Justice Lobis acted with punitive intent or other improper motive and with reckless disregard for the fundamental rights of the litigant before her. She appeared so biased that the public viewing the spectacle would perceive that the judge could not be counted on to pass judgment on the legal matters involving their lives, and in my case my liberty, with impartiality. She displayed the image of a judge who looked down from her elevated perch and treated this litigant and his attorneys in an abusive and imperious fashion. She knowingly disregarded the controlling law and made decisions and rulings that were a gross abuse of discretion. The applicable law did not permit her to do what she desired, so she disregarded it. Judges should decide matters based on the facts before them without outside influence, but this principle is premised upon good faith decision making. It cannot insulate bad faith decision-making when, as in this s instance, a judge knowingly disregards the law. In this instance, justices Lobis’ conduct is properly subject to review by the Commission on Judicial conduct, whether it is correctable on appeal or not. The egregious errors recounted herein constitute misconduct. Justice Lobis either acted willfully or is incompetent. Such willful conduct is per se wrong, and incompetence is no excuse because the judge is required to maintain professional competence in the law. In circumstances such as mine, it is emotionally and financially draining to take the matter up on appeal. To compound the matter, the same judge had further handicapped me by incarcerating me without due process of law. I respectfully ask that you review this judge’s conduct and take appropriate action.


‘
Respectfully yours

Reynold N. Mason

Is politics of fear keeping OBAMA from pushing Comprehensive Immigration Reform?

Arizona: Feeling the squeeze

By now, all the world knows about SB-1070, the notorious Arizona law that makes it a crime to travel anywhere in the state without “papers”. To violate this provision of the law is to risk jail, plus a $2500.00 fine. Arizona is home to 460,000 Hispanics. No one believes that police would stop a white man and demand he present his “papers” or even harbor the vaguest suspicion that he might be undocumented. The 70 percent of Arizonians support this law do so, because they do not feel threatened by it. The slings and arrows of this law are aimed squarely at Hispanics. It is time for Americans who value freedom, justice and fair play to become good neighbors and fight this despicable law tarnishing the global image of the State of Arizona. This enactment is a betrayal of MLK, Mandela, Gandhi and countless millions who waged war on prejudice and discrimination. Black South Africans did not end apartheid by themselves, they had the support of anti-apartheid movements across the globe, from Europe to North America, who held rallies, signed petitions and organized boycotts and sit-ins. They had the support of big business, corporations who pulled out of South Africa or ceased making loans. Those among us who admire the sacrifices of MLK, Gandhi and Mandela must be willing to follow their example. We must remember why they fought. American blacks in particular, should bring their bitter experience and skills honed fighting Jim Crow, to the front line in the battle of Arizona. Our Hispanic brothers now face the might of an anti-immigration machinery aimed at making worse, the plight of those who are least advantaged. That is as wrong as it is unjust. We must not stand by while Arizona violates the civil rights of Hispanics under its power. It is true, that for the time being, the legislature holds all the cards. But so too, did Ian Smith, B.J. Voster and Peter Botha. Yet, in spite these despots, apartheid was discredited and its machinery of racism dismantled . Then as now, rightists legislators are joining forces with ideologically driven elements and are using the judiciary and the police to enforce their will. Let us be thankful that Arizona is a democratic state, with democratic institutions. We must use them to repeal this law.

Politics as usual

We must push for comprehensive immigration reform now, not wait for the time when Washington insiders think it politically expedient. Harry Reid, in a tough fight for re-election in his home state of Nevada, has read the writing on the wall, he says he‘ll push immigration reform, now. The 25 % Hispanic population in his home state of Nevada will be heard from come November. The White House is paralyzed and afraid to move on comprehensive immigration reform without Republican support. Even the erstwhile John McCain, he, who with Senator Kennedy in 2005, sponsored the McCain-Kennedy immigration bill, which called for a guest worker program and a pathway to citizenship, has flipped. In the fight of his political life against an anti-immigration rightist, he has drifted right. Republican senate point man Mitch McConnell, on Fox News Sunday, said he didn’t think the time is right for immigration reform; “not while we have 10% unemployment and drug wars across the border”. This sentiment was echoed by Saxby Chambliss, Republican from Georgia, who believes that other issues pending in congress must take precedence over comprehensive immigration reform. It’s no longer the back of his bus; it is the back of the line. But there are hopeful signs. The debate over comprehensive immigration reform (CIR) has galvanized the Hispanic community. Hispanics the world over, have begun to speak out in support of their Arizona brothers. Hispanic leaders, like representatives Paul Grijalva and Luis Guttierez, chairman of the Congressional Hispanic Caucus, (CHP) have been vocal in their opposition, and Hollywood celebrities, among them, George Lopez, Eva Longoria and Ricky Martin have taken to Twitter to express their views. Ordinary citizens are finding ways to express their outrage. The Miami Herald reports that Jesus Serrano, an independent trucker, is organizing a trucker boycott. Since forty percent of all Mexican products come through Nogales, an effective trucker boycott could raise the price Mexican products this side of the border. Phoenix Mayor, Phil Gordon, says he anticipates a drop in business because of this law. That’s a good start. Together, Americans of conscience opposed apartheid and defeated Jim Crow, so there’s no reason to celebrate discrimination today in Arizona. Congress must take up CIR now. It must pass comprehensive immigration reform for America’s secutiry and prosperity (CIRASAP) that many say “secures our borders, secures our nation and keeps families together”

Immigration Reform: Arizona takes the low road

IMMIGRATION REFORM: ARIZONA TAKES THE LOW ROAD

By Reynold N Mason

Fifty years ago, 69 people were killed and 180 were injured protesting laws that required them to carry “passes” at all times or face arrest. The place was Sharpsville, Republic of ‘South Africa. The apartheid system had enacted the “pass Law” to limit the movement of blacks in white areas of the country. Fast forward to 2010. Arizona enacts a statute known as SB 1070, on April 19. It now awaits only the signature of governor - Brewer to put it into effect. In much the same way as apartheid, this bit of legislative chicanery is designed to limit the movement and numbers of Hispanics in the state. Sounds familiar?

According to the U S census Bureau, 30 million Hispanics, 11 per cent of the population, called the US home in 2000. By 2007, that number had reached 45 million, 15 per cent of the population. In 16 states, the Hispanic population exceeds 500,000. The irony is the very people who thought the apartheid pass laws oppressive and discriminatory, who used economic sanctions, demonstrations and boycotts to bring an end to apartheid, have now taken a page from the apartheid law books. Like pass laws, the Arizona statute makes it a crime for an undocumented person to simply be in the state, on either private or public property. It is now a crime to invite a known illegal alien into the state or perhaps sit down to dinner with such a person. The law forbids teaching undocumented persons in schools, harboring them or conferring any state benefits upon the unfortunate souls. This provision mints new criminals out of law abiding citizens who may sit down to dinner with their newly- arrived sibling. As repugnant as this legal prohibition might appear, more invidious still, is the provision of the Arizona “pass law” that gives police the authority to question people about their immigration status and, to arrest them for trespassing should they fail to show, the sacred piece of officious paper that says: “’you have the right to be here”

Let’s not forget that failure to produce the pass on demand was a crime in Sharpsville too, for which thousands were arrested and jailed. And to be sure the law is carried out to the fullest extent, it grants every citizen the right to bring suit if he/she feels the authorities are not enforcing the law to the fullest extent. ((Section 11-1051) In addition, the police are indemnified by the state, should they be sued for acts done in enforcing the law. Have no fear we got your back. The “Houdini Hispanic” who evades the dragnet however, will be cut off at the pass. He must eat, and so must work. But when he tries to solicit work on the street corner he risks jail, because it is now a crime for undocumented persons to seek work in Arizona and a crime too, for any one to employ such a person.

Will the courts save us?

The 4^th Amendment to the US constitution has, for years, been employed by the courts to beat back invidious and hateful discrimination. The police have been required to prove that they had reasonable suspicion to stop any one perceived to be an illegal alien. How to tell an undocumented Hispanic from one born in the US…..that’s where the rubber meets the road. This is “stealth racism”, plain and simple, with “plausible deniability.” No, we are not racists; we are simply enforcing the law enacted by our august legislature. This is rank racism masquerading in legal garb, under a policy designed to target Mexicans. Arizona will have the dubious distinction of being the first state to legalize racial profiling. Previously, overt racism has now taken sophisticated guises. Police will not have to admit their true motives (no need for the KKK) because they can now operate behind a veil of authority conferred by SB-1070, which shields their conduct against the dreaded appellation: “racist cop”. In the shadows, behind their veil of law and authority, police can now heap indignities that bespeak hostile intent toward Hispanics, with impunity.

The new law legalizes ethnic profiling, and targets Hispanics, for suspicion of crimes based on nothing more than their race and ethnicity, or in this instance, group characteristics they believe to be associated with undocumented aliens. This is nothing if not “the use of ethnicity to determine whom to stop”. This approach is replete with constitutional peril. The New York garment workers settlement highlights this conundrum. After INS agents arrested 2,907 undocumented workers, they testified that they relied on the workers appearance, language… speaking Spanish or, English with a Spanish accent, appearing to be South American, and wearing clothes not typical of America and foreign sounding names. Ninety-six per cent of the workers arrested were Hispanics.

Admittedly, illegal immigration is a problem, and a thorny one at that. But that does not justify racial or ethnic discrimination. In the Bringing- Ponce case, in 1975, the US Supreme Court, recognizing the illegal immigration problem, said that it was reasonable for the INS to use Spanish ethnicity near the Mexican border as a basis for detaining a person. But this may not be the only basis. This ruling may have outlived its usefulness because of the changes in the US population. This limited circumstance does not authorize Arizona to grant its police broad and unlimited power to stop and question Hispanics under the SB-1070 without reason to suspect that they have violated the law. Where would that leave Hispanics who are US citizens or legal residents? True, twelve million illegal aliens create economic and social problems, such as increased demands on schools, hospitals and recreational facilities. But resorting to knee-jerk legal panaceas is not the answer. We must consider the public interest along with the interference the law will occasion upon individual liberty, when, for instance, a father is accosted by police at his son’s soccer match, or at the school bus stop or grocery store. No reasonable person will begrudge the police their privilege of searching someone believed to be armed and dangerous or, to detain a person when there is information that that person is carrying illegal drugs. But to countenance an affront upon law abiding citizenry, as this law does, without any suspicion that a particular person has done something wrong, would permit open season on Hispanics in Arizona, legal or otherwise. Being Hispanic in Arizona (BHA) would become as precarious as driving while black (DWB). Large numbers of Mexicans, both native born and naturalized citizens share ancestry and physical characteristics. This alone cannot be justification for stopping all Hispanics to ask about their legal status. We need to follow the example of our Sharpsville brethren and stand against this injustice.

“……no man should be required to do what the law does not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State Legislature cannot do, without exceeding their authority. There are certain vital principles in our Republican governments, which will determine and over-rule an. apparent flagrant abuse of legislative power” [.....Justice Chase (1798)

Foreclosures: Turning the American dream into a nightmare

Foreclosures: Turning the American dream into a nightmare
Most people strive toward the goal of home ownership for years, before ultimately attaining it. After all , shelter is a human necessity ranking just below food on the chain of human survival Home ownership changes our attitude in subtle yet profound ways. Once a home owner, a mower, a set of pruning shears, even a leaf blower and a set of tools of the landscape trade take space in your new garage. Then there are the tax breaks, like interest deduction and property tax deduction.. And finally, you can paint the walls in whatever color your heart desires. Owning a home in the right sub division can bring status and a tingling feeling deep inside of accomplishment and security; you finally have a place you can call your own.

But the upkeep on the property is now on you . And when the boiler conks out that's on you as well. There's no more rent but there's a mortgage and, that too is due every month. Now you owe the bank more more than you make in five years. Not paying is not an option; the payment is due even if you move out, walk away. It used to be that you built up equity when you bought a house, no more. Now the house is not worth the money you plunked to buy it in the first place. You no longer face an increase when the lease expires instead, you are staring at a mortgage rate adjustment that can up your payments from $1800.00 to $ 2500.00 with a single keystroke.

Last year there were a record number of defaults on mortgages. Once proud home owners are now trapped in neighborhood's ravaged by the foreclosure pandemic sweeping the country. According to RealtyTrac,, foreclosures in the Peach State were up 24 % in 2007 and 79 % in 2008 from the foreclosure numbers in 2006. The uptick in foreclosures continues to plague Georgia in general and Dekalb in particular. There were 1100 foreclosures in Dekalb County in the month of January, accounting for 10% of the total for the state of Georgia. And there are yet more in the pipeline that are due to foreclose in the coming months. There is no end in sight. Home owners are unable to sell as quickly as they once could to try to beat foreclosure because there are simply too many homes on the market. Thousands of home owners are facing interest rate adjustments on their adjustable rate mortgages handed out like candy during the real estate boom a few years ago. Home values have plummeted and and the problem faced by many is that they are unable to refinance because the house is now worth less than is owed to their lender. There are few viable options available to sellers in the current market. But with foreclosures destabilizing the market, elected officials have finally begun to tale notice.

In an effort to spur loan modifications the Federal National Mortgage Association (Fannie Mae) and HUD are offering cash incentives to lenders for every loan they modify. In addition, Fannie Mae has proposed that lenders allow home owners in distress to modify their loans to take advantage of lower interest rates or enter into repayment plans. However, the repayment plan is not much help because it merely postpones the inevitable. Usually, it requires borrower to pay the current mortgage in addition to part of the past due amount until the arrears are fully paid. Home owners who have lost their jobs cannot afford current payments, let alone payment on the arrears, so this option is of little help. Loan modification is the best option for most home owners; It may allow the home owner to consolidate his first and second mortgages, get a lower interest rate or, extend the length of the loan to lessen the payment. One Snellville home owner I spoke with succeeded in getting his mortgage modified by is bank, reducing the payment from $1170.0 m t $ 517.00. " Now that my wife has been laid off," he says, " I don't know what we're going to do, because the bank won't modify if you don't have a job. You must have income", he says, " otherwise you are out of luck. To tell the truth", Noel says, "we could not afford the payment even if they reduced it to $100.00. I Don't know what we are going to do when my wife's unemployment runs out". Desperate to save their credit, many home owners have taken the short sale route. They, with the consent of their lender, have sold their homes for less than is owed to the lender. The flood of foreclosures inundating the banks have nudged them in this direction; they are more willing than ever before to to allow borrowers to sell short. This option is preferable to increasing their inventory of unsold foreclosed homes which lose value and further blight neighborhoods.

Home owners in distress should take advantage of available programs. The Hope Hot line 1-888-995- Hope, offers help and counseling. Dekalb County has set up a foreclosure task force to assist home owners in distress. The task force can be reached at: 404-286-3378. In January, Dekalb established the Neighborhood Stabilization Program (NSP)using HUD money. The money will be used in areas affected by the current foreclosure crisis. Contact the NSP at 404-286-3308