Chester J. Straub

Chester J. Straub (born 1937) is a Judge of the United States Court of Appeals for the Second Circuit headquartered in New York City.

Straub attended St. Peter's College and the University of Virginia School of Law. He practiced law in New York from 1963 to 1998, and also served as a member of the New York State Assembly from 1967 to 1972 and the New York State Senate from 1973 to 1975.

In 1998, President Bill Clinton nominated Straub to the Second Circuit. He took office on June 3, 1998.

In January 2006, Straub was one of the three judges selected to hear National Abortion Federation v. Gonzales, 437 F.3d 278, one of the cases later folded into and resolved by Gonzales v. Carhart. The Second Circuit thereby became one of three circuits to uphold district court rulings against the constitutionality of the Partial Birth Abortion Ban Act of 2003. Out of the nine circuit court judges who ruled on this issue, Straub was the only one to dissent, voting to reverse the district court and uphold the Act.

In 2008, Straub and circuit judges Richard C. Wesley and Debra Ann Livingston Played God (see PLAYING GOD: A CRITICAL LOOK AT SUA SPONTE DECISIONS BY APPELLATE COURTS http://www.lwionline.org/publications/documents2002/02milani2.doc “we conclude that it is both illegal and imprudent for appellate courts to ‘play God’ and decide such issues without input from the parties who will be most directly affected by the courts’ decisions.”) in an appeal in the District Court case of Ferran v. District Attorney Kenneth R. Bruno (Appeal No. 05-2978). He played God by silently ignoring the dispositive issues raised on appeal, by ignoring Second Circuit precedents, and by issuing an erroneous “Sua Sponte” determination and Mandate. The Mandate silently ignored Plaintiff’s Objections that David N. Hurd acted without Notice and Without Affording Plaintiffs any Opportunity to be Heard on the sufficiency of their claims against the District Attorney. The Mandate also encouraged District Judge David N. Hurd to retroactively misinterpret his PERMISSIVE order granting Plaintiffs leave that “Plaintiffs MAY file” only an amended complaint Waving and Retracting the claims against the District Attorney as a MANDATORY Order affirmatively “directing” and “requiring” Plaintiffs to file such a Complaint. Consequently, Without A Notice to Plaintiffs and Without Affording Plaintiffs any Opportunity to Be Heard to justify their election not to Waive and Retract their claims against the District Attorney, District Judge Hurd Sua Sponte imposed the “harshest sanction” upon Plaintiffs for their having elected to pursue an appeal instead of Waiving and Retracting their claims against the District Attorney. In doing so, circuit judges Straub, Wesley and, Livingston subjected Plaintiffs to deprivations of their Constitutional Right to Notice and meaningful Opportunity to be Heard, and more fundamentally, their First-Amendment Constitutional Right to Petition the District Court and to Petition the Appellate Court for Redress of Grievances. Therefore, Plaintiffs filed the following Complaint of Misconduct pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. 4 §§ 351–364:

Complaint of Judicial Misconduct committed by Federal District Judge (David N. Hurd) and by Court of Appeals Judges Chester J. Straub, Richard C. Wesley, and Debra Ann Livingston. Petition for Redress of Grievances

Dear Chief Judge of the 2nd Circuit Court of Appeals

Please find enclosed (1 copy) documentary evidence that a Federal District Judge (David N. Hurd) in the Northern District of New York has either deliberately or incompetently disregarded numerous Second Circuit Court of Appeals precedents that safeguard the rights of litigants and has repeatedly violated the constitutional rights of Plaintiffs to Notice and an Opportunity to be Heard with respect to two “sua sponte” Orders condemning, enjoining and otherwise depriving Plaintiffs of Liberty and Property. Hurd totally silenced Plaintiffs by Ordering them not to file any “motion” for “reconsideration” of his Sua Sponte Order Without Notice. Upon information and belief the said Federal District Judge intends to continue to disregard the said Second Circuit Precedents and the said Rights of Parties in pending and future cases, and that Prospective Relief in the nature of Writs of Mandamus and/or Prohibition, Peer Pressure, Revision of Local Rules, Revisions clarifying the Federal Rules of Civil Procedure, Judicial Discipline under 28 U.S.C.14§§ 351-364, Impeachment &/or Removal without Impeachment , criminal prosecution under Title 18 U.S.C. section 242, or other remedy are necessary to deter and prevent the said Federal District Judge and other Federal District Judges from disregarding the procedural rights secured by the said Second Circuit precedents and the said constitutional Rights of Parties. Also implicated, as accomplices of District Judge Hurd, are Magistrate Judge David R. Homer, and Chester J. Straub, Richard C. Wesley, and Debra Ann Livingston. The enclosed supporting documents and related documents are also available in digital form on CD-Rom and by email from undersigned Petitioner-Complainant upon request, and are available online (e.g., PACER N.D.N.Y. 1:05-CV-0161 ). The first Order titled a “conditional Order of Dismissal” dated March 4 2005 violated/disregarded the following Second Circuit precedents: Lewis v. New York, 547 F.2d 4, fn. 4 (2d Cir. 1976); Fries v. Barnes, 618 F.2d 988 (2nd Cir. 1980) (“Failure to afford plaintiffs an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal.”). Schlesinger Inv. Partnership v. Fluor Corp., 671 F.2d 739, 742 (2d Cir. 1982) (reversing sua sponte dismissal entered without prior notice). MLE Realty Assocs. v. Handler, 192 F.3d 259 (2nd Cir. 1999) ("The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard.”) Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) (“[The District Court’s convenience] does not absolve the district court of its responsibility to afford Moates the procedural safeguards due him.”). Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) (“in absence of notice prior to … sua sponte order …, the order was entered in violation of due process).”

In addition, the first Order titled a “Conditional Order of Dismissal” dated March 4 2005 disregarded the following Supreme Court precedents: Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (County Prosecutor is Municipal Policymaker and his acts and edicts establish municipal liability) Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (a prosecutor is NOT absolutely immune from monetary damages for false statements made to the Public). Burns v. Reed, 500 U.S. 478 (1991) (Prosecutors are NOT absolutely immune for rights violations flowing from legal advice they gave to police officers.) Botello v. Gammick, 413 F.3d 971, 975 (9th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1419, 164 L.Ed.2d 116 (2006) (District Attorney liable for monetary damages for advising police and public; district attorneys are final policymakers for the municipality)  ; Mairena v. Foti, 816 F.2d 1061 (5th Cir.1987), cert. denied sub nom., Connick v. Mairena, --- U.S. ----, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988). Crane v. State of Texas, 766 F.2d 193 (5th Cir.) cert. denied sub nom., Dallas County, Texas v. Crane, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (1985) (District Attorney is County Policymaker for Municipal Liability purposes)

The second Order (a Judgment) titled a “Decision and Order” dated May 13, 2008 disregarded the following Second Circuit precedents that safeguard Plaintiffs’ rights: Simmons v. Aburzzo, 49 F.3d 83, 87 (2nd Cir. 1995) (The ‘fails to comply with an Order’ portion of FRCP 41(b) is inapplicable to a Plaintiff’s failure or refusal to file an amended complaint, because an Order granting leave to amend is “permissive”, not mandatory); Hertz Corporation v. Alamo Rental-Car, Inc., 16 F.3d 1126 (11th Cir. 1994) (“The trial court [imposed] a sanction against Hertz for failing to file an amended complaint. This constitutes error…. [B]ecause a leave to amend is permissive, rather than mandatory sanctions are inappropriate. See also Mann v. Merrill Lynch, Pierce, Fenner, and Smith, Inc., 488 F.2d 75, 76 (5th Cir.1973) (impermissible to dismiss a case under Rule 41(b) for failure to amend complaint).”) Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 448 (2nd Cir.1978)(“A plaintiff is entitled to have an appellate court review the sufficiency of the dismissed pleading. … [T]he ideal disposition in cases such as these is to grant leave to replead within a specified time period, with a direction to the clerk to enter judgment if no amended complaint is forthcoming. Such an order would safeguard the interest of all the litigants.”). Doral Produce Corp. v. Paul Steinberg Assoc., 347 F.3d 36, 44 (2d Cir. 2003) (A person should not be sanctioned “without affording him an opportunity to speak in his defense”). Doral Produce Corp. v. Paul Steinberg Assoc., 347 F.3d 36, 44 (2d Cir. 2003) (“Ordinarily, a contemnor should not be held in contempt ... without affording him an opportunity to speak in his defense”.) Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37 (2nd Cir. 2001) (“[I]t is well established that due process requires that courts provide notice and an opportunity to be heard before imposing any kind of sanctions.”) (quoting Mackler Productions, Inc. v. Cohen, 225 F.3d 136, 141 (2d Cir. 2000)). Shannon v. General Electric Co., 186 F.3rd 186, 194-95 (2nd Cir. 1999) (Due Process requires that the Court invite “plaintiff … to file a document explaining the failures and outlining why the action should not be dismissed”). Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991) (" A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing [sanction].” Belot v. Burge, 490 F.3d 201 (2nd Cir. 2007) (“A district court by definition abuses its discretion when it makes an error of law."… "The abuse-of-discretion standard includes [De Novo] review to determine that the discretion was not guided by erroneous legal conclusions.")

Upon information and belief, cognizable misconduct by District Judge Hurd includes conduct prejudicial to the effective and expeditious administration of the business of the courts: “Such sua sponte dismissals are not in accordance with our traditional adversarial system of justice because they cast the district court in the role of "a proponent rather than an independent entity." Moreover, such dismissals are not favored because they are unfair to the litigants and ultimately waste, rather than save judicial resources. Id. Lewis v. State of New York, 547 F.2d 4 (2d Cir.1976).” Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983)

“Untimely [i.e., premature] dismissal may prove wasteful of the court's limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts. The undesirable consequences of premature dismissal are amply illustrated by the awkward posture this case presents on appeal.” Fries v. Barnes, 618 F.2d 988 (2nd Cir. 1980).

The second Order (a Judgment) titled a “Decision and Order” additionally violated the Notice/Opportunity-To-Be-Heard requirements of Local Rule N.D.N.Y. R. 41.2(a) providing Notice and Opportunity to be Heard. The case in which the attached documentary evidence was generated involves a defendant District Attorney Kenneth Bruno who is the natural son of a Very Influential member of the Republican Party, New York State-Senator Bruno. The main beneficiary of all of the above documented violations of Right, Law and of Precedent by District Judge Hurd has been defendant District Attorney Kenneth Bruno. Research should be undertaken to determine, as a matter of fact, whether District Judge Hurd routinely and consistently violates the Rights, Law and of Precedents above cited in all cases, or if he has made a special exception for a case filed against defendant District Attorney Kenneth Bruno. Upon information and belief, cognizable misconduct by District Judge Hurd may include: (A) using the judge's office to obtain special treatment for [powerful] friends or relatives; (B) accepting bribes, gifts, or other personal favors related to the judicial office; (C) having improper discussions with parties or counsel for one side in a case; (E) engaging in partisan political activity or making inappropriately partisan statements. The cognizable misconduct by District Judge Hurd includes (D) treating litigants in a demonstrably egregious and hostile [and Inquisitorial] manner. Generally, the filing of a "complaint" in a Federal Court “brings to mind the commencement of an adversary proceeding in which the contending parties are left to present the evidence and legal arguments, and judges play the role of an essentially passive arbiter. [Not an] inquisitorial process.” http://www.ca2.uscourts.gov/Docs/CE/rules-for-judicial-conduct-and-judicial-disability-proceedings.pdf District Judge Hurd volunteered to take on the “Role of Inquisitor”, and took that role to extremes by refusing to afford Plaintiffs any meaningful opportunity to be heard. We have criticized sua sponte dismissals of pro se complaints in several recent cases emanating in the Northern District. Great circumspection is required before terminating such actions, particularly in their embryonic stages. It is prudent for judges to avoid an inquisitorial role, and not search out issues more appropriately left to a motion by the opposing party. Lewis v. State of New York, 547 F.2d 4 (2nd Cir. 1976) “The Second Circuit has reversed several sua sponte dismissals of pro se complaints because a summons was not issued cautioning the district judges "to avoid an inquisitorial role, … because the procedure (1) eliminates the traditional adversarial relationship; (2) causes inefficiencies in the judicial process as a whole; and (3) may give the appearance that the judiciary is a proponent rather than an independent entity.” Franklin v. State of Oregon, 662 F.2d 1337 (9th Cir. 1981)

“Such sua sponte dismissals are not in accordance with our traditional adversarial system of justice because they cast the district court in the role of ‘a proponent rather than an independent entity.’" Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983) http://bulk.resource.org/courts.gov/c/F2/716/716.F2d.1109.81-3017.html “It is wrong and highly abusive for a judge to exercise his power without the normal procedures and trappings of the adversary system—a motion, an opportunity for the other side to respond, a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law, though they surely serve those purposes as well. More fundamentally, they lend legitimacy to the judicial process by ensuring that judicial action is—and is seen to be—based on law, not the judge’s caprice.” http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement (dissenter)

The cognizable misconduct by District Judge Hurd includes (G) violating other specific, mandatory standards of judicial conduct. Upon information and belief, the misconduct of the said District Judge Hurd violated the Canons of the Code of Conduct for United States Judges: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” “Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code.” “A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law....” “In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay.” Dated: June 2008

Signed:

_________________ Mark R. Ferran BSEE summa cum laude JD magna cum laude, recipient of Albany Law School graduation award for highest proficiency in Civil Procedure classes, and recipient of the grade of A+ from Distinguished Professor David D. Siegel [author of West Practice Commentaries] in his class on Civil Procedure.

36 Winnie St. Albany, NY 12208 (518) 438-2955 cell (518)248-3036 mrferran@nycap.rr.com