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.


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Respectfully yours

Reynold N. Mason