No legal remedy in the State of New York against arbitrary behavior of intermediate appellate courts

When a state court in the state of New York is acting in an arbitrary manner or outside of its jurisdiction, there is a legal remedy available for it, at least theoretically.

It is the so-called Article 78 proceeding which replaced the writs of mandamus and prohibition against judges and must be brought up in the intermediate appellate courts as courts of original jurisdiciton.

An Article 78 petition can be filed as of right against any judge of a New York state court that is lower than an intermediate appellate court.

There is no such remedy available on the federal level, as the Civil Rights Act, 42 U.S.C. 1983, specifically prohibits injunctive relief against state courts in their official capacities, and the writ of mandamus is, in effect, a request for such injunctive relief.

Yet, when it is the Appellate courts, acting as courts of original jurisdiction, which do something arbitrary and outside of their authority, New York law provides no legal remedy against such misconduct, as the highest court in the state, the New York State Court of Appeals, lacks authority to intervene and issue writs of mandamus against intermediate appellate courts acting as courts of original jurisdiction.

This gap leaves litigants in intermediate appellate courts as courts of original jurisdiction (mostly, attorneys in disciplinary proceedings) without a legal remedy available to all other litigants in New York courts.

And, I believe, this gap must be closed by the Legislature, as at this time the way Article 78 is shaped, it denies equal protection to litigants in intermediate appellate courts as courts of original jurisdiction.