Judicial Cannibalism Gnaws on Retired Judge…..CLICK HERE FOR FULL STORY

They continue to eat their own, destroying anyone who would dare to speak out against improper action even—perhaps, especially-- if that conduct is by a member of the judiciary. Enter the retaliatory destruction of the latest victim, now-retired Supreme Court Justice Frank V. Ponterio…….

The New York Law Journal reports that former judge Ponterio “claimed that court officials declined to recertify him for his Supreme Court position because he threatened to make public his belief that then-Appellate Division, First Department, Justice Betty Weinberg Ellerin ‘prompted’ his removal from hearing matrimonial cases on Staten Island.” Judge Ponterio's complaint says that Justice Ellerin "sought to replace [him] with a female judge of her choosing in order to influence decisions in matrimonial cases to favor female litigants."

So, the “powers that be” decided to get rid of a person who would who have the audacity to speak up for what was right— and even if that person is a judge. It doesn’t matter. The message is: “Obey or Be Destroyed”

• Once again “judicial steering” and “influencing decisions.” We refer you to a related September 11, 2007 dated story on this forum: “3 Judges Covered Crony’s 9/11 Donation Fraud.”

• Once again “retaliation”. We refer you to a related June 11, 2007 dated story on this forum: “Former NY State Chief Court Clerk Sues Judges in Federal Court.”

• Once again “the system used against judges.” We refer you to 3 related stories on this forum: September 1, 2007, “Corruption Targets Retired Judge” – September 2, 2007, “More On: Corruption Targets Retired Judge Phillips” – and “September 3, 2007, “NY Post on Judge Phillips Attack.” 
  

The federal court decision is posted to the right, marked: “Judge Frank V. Ponterio”

Here is the September 7, 2007 dated The New York Law Journal article by Mark Fass:

Ousted NY Judge Loses Again in Court Fight to Get His Job Back

By Mark Fass
New York Law Journal
September 7, 2007

A federal judge has thrown out the final remaining claim by former Supreme Court Justice Frank V. Ponterio against a group of top court officials who he claimed had retaliated against him by declining to extend his judicial certification.

Southern District Judge Harold Baer Jr. ruled that Mr. Ponterio's "class of one" equal-protection claim failed on two counts. Not only had Mr. Ponterio failed to satisfy the criteria for such a claim, Judge Baer held, but the defendants were also entitled to qualified immunity.

"In short, Ponterio points to no Justice like himself - past, present, or hypothetical - who had been denied certification or recertification on the merits and was subsequently treated differently than Ponterio," Judge Baer concluded in Ponterio v. Kaye, 06civ6289.

The decision will be published Wednesday.

Mr. Ponterio filed his complaint in August 2006 against then-Chief Administrative Judge Jonathan Lippman, the Administrative Board of the Courts and the board's members - Chief Judge Judith S. Kaye and the four presiding justices of the Appellate Division.

Certification is a biennial requirement for judges following their 70th birthdays until mandatory retirement at 76. Mr. Ponterio finished his regular term on Dec. 31, 2001, as he reached 70 during that year. He was certificated for 2002-2003 but rejected for a second two-year term.

The former judge claimed that court officials declined to recertify him for his Supreme Court position because he threatened to make public his belief that then-Appellate Division, First Department, Justice Betty Weinberg Ellerin "prompted" his removal from hearing matrimonial cases on Staten Island. According to Mr. Ponterio's complaint, Justice Ellerin had "sought to replace [him] with a female judge of her choosing in order to influence decisions in matrimonial cases to favor female litigants."

In January, Judge Baer dismissed Mr. Ponterio's First Amendment, state-law retaliation and "denial of access to the courts" claims, leaving only a so-called "class of one" equal protection claim. Specifically, Mr. Ponterio's sole remaining claim was that the Administrative Board of the Courts violated his equal protection rights when it declined to reconsider its 2003 denial of recertification.

Class-of-one claims require plaintiffs to demonstrate that they were "treated differently than someone who is prima facie identical in all relevant respects."

Mr. Ponterio failed to satisfy that element, Judge Baer ruled.

"Here, Ponterio has failed to identify any retired Justice who is substantially similar to him, let alone someone who is prima facie identical in all relevant respects," Judge Baer wrote. "The most relevant distinction between Ponterio and all other retired Justices whose applications were considered in 2004 is that Ponterio was denied recertification on the merits, unlike all the other Justices considered."

The defendants were also entitled to qualified immunity, which barred Mr. Ponterio's claim, Judge Baer added.

"Reliance on advice of counsel may, in some circumstances, suffice to establish qualified immunity," according to the decision. "Such is the case here, where counsel's advice objectively precluded a reasonable Board member from the knowledge that he or she was violating Ponterio's Equal Protection rights when he or she declined to reconsider his denial."

Kevin J. O'Neill of Gogick, Byrne & O'Neill represented Mr. Ponterio. He did not return a call for comment.

Assistant Attorney General Constantine Aristidis represented the court system. An Office of Court Administration spokesman declined to comment on the dismissal.

"The decision speaks for itself," he said.

END OF NYLJ ARTICLE

The federal court decision is posted to the right, marked: “Judge Frank V. Ponterio”