"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, October 8, 2014

The Younger abstention, attorney disciplinary proceedings and fraud committed by the government

When a disciplinary proceeding was commenced against me based on (1) two fraudulent charges and (2) three sanctions of a judge I sued before he started imposing sanctions on me, and in view of a history with the disciplinary court where the court refused to apply the law and ignored facts in the record on appeal in cases involving me or my husband, I removed my disciplinary case to a federal court.

I did it under a federal removal statute 28 USC 1443 and added a 1983 action to the removed disciplinary proceedings.

My disciplinary proceeding was remanded because I am white - I am not joking.  The federal court "read" the removal statute, 28 USC 1443, as requiring the denial of equal protection to be on the grounds of racial discrimination, even though there is not a single word about it in the text of the statute, and federal courts have no authority to change federal statutes by interpretation.

The court also dismissed my 1983 action on the so-called "Younger abstention" grounds.

The Younger abstention is a way for federal courts to refuse to consider federal constitutional claims brought in a civil rights lawsuit because a state court proceeding is pending where a party (theoretically) raise his or her federal constitutional claims.

Never mind that jurisdiction of federal courts is defined only by Article III and by the U.S. Congress and federal courts cannot invent rules to restrict their own jurisdiction to review federal constitutional claims.

Never mind that there is no condition precedent in the Civil Rights Act, 42 U.S.C. 1983 demanding that federal constitutional claims must be first raised in state courts.

Never mind the tradition of the New York State courts to either ignore constitutional claims altogether, on the trial and appellate levels, or apply the court-created doctrine of the so-called "constitutional avoidance", resolving cases on "state grounds" without reaching constitutional issues, even though constitutional issues also involve issues of Supremacy of the U.S. Constitution over the inconsistent state laws (which is sometimes called pre-emption).

Never mind that after New York State courts ignore federal constitutional issues, there is no appeal to the U.S. Supreme Court as of right, where 9 justices have over 5000 petitions filed annually for their review and grant 75, according to statistics.

Never mind that if a party goes back to federal court AFTER his constitutional claims are (1) ignored;  (2) considered frivolous; or (3) "avoided"  by state courts, he is blocked from raising those same federal constitutional claims now by the so-called Rooker-Feldman doctrine in which the aggrieved party who is desperately trying to get access to court to review his/her federal constitutional claims is now called a LOSER (I was always of the impression that the word is a vulgar middle-school jargon, not a legal term).

Under the Rooker-Feldman doctrine, federal courts will now claim they do not have jurisdiction to review the federal constitutional claims previously dumped by federal court on the Younger abstention grounds, because the claims should have been reviewed on appeal from the state court decision (remember - "constitutional avoidance" at best in state courts + lack of appeal as of right to the U.S. Supreme Court).

This process of trying to nail jelly to the wall when a party tries to get SOME COURT review his or her constitutional claims on the merits is impossibly difficult enough without the government party applying for such a Younger abstention in federal court initially does not apply for it in bad faith.

In my case the New York State government has risen to new heights, or rather, sank to a new low when it (1) obtained a Younger abstention to have my federal claims go to the state disciplinary court, and then (2) argued to the state disciplinary court to prohibit me to raise those claims in that court - and, judging by the fact that the court dismissed my cross-motion that raised federal constitutional issues without ANY explanation, the government succeeded in its fraud.

Once again, and this may be a valuable insight for pro se civil rights plaintiffs, Younger abstention is usually sought when:

(1) a civil rights lawsuit is filed in a federal district court;
(2) a state proceeding in the nature of an enforcement action is pending in state court or even administrative agency;
(3) it is claimed to be possible to raise federal constitutional claims in state proceedings.

Of course, administrative agencies in New York have no authority to resolve constitutional challenges to statutes and regulations, and the only court that is entitled to review and resolve such challenges is the New York State Supreme Court (the lower trial court of general jurisdiction), yet,  Younger abstention is applied left and right (according to case law) when administrative proceedings and proceedings in County courts or Family courts are pending.

In my case, the Younger abstention was applied because a disciplinary proceeding was pending in the state Supreme Court, Appellate Division, 3rd Judicial Department.

Of course, when a proceeding was removed to federal court as of right, it may not be at the same time perceived as "pending" in state court for purposes of the Younger abstention, and a motion to apply such a Younger abstention in federal court before the disciplinary proceeding was remanded is premature.

Yet, the federal court "resolved" this clear jurisdictional problem by claiming that it does not have jurisdiction over my removed case because I did not claim racial discrimination in removing the case under 28 USC 1443 (there is, once again, not a single word requiring that I should have pled racial discrimination in that statute).

A brief summary of what has happened in my disciplinary case as to the Younger abstention.

On March 20, 2013 Bruce J. Boivin, Assistant Attorney General, New York State, argued to the federal district court that I can raise my general constitutional claims in state court proceedings under the Younger abstention.

On November 18, 2013, the federal district court agreed with Mr. Boivin, applied the Younger abstention and dismissed my federal constitutional claims to the infirmities of attorney disciplinary system in New York.

I raised federal constitutional challenges to infirmities in the attorney disciplinary process in the state court proceeding on remand.

On January 8, 2014, attorney Allison Coan of the Appellate Division Third Department, in a sworn statement to the court, claimed to the state court that I "cannot be permitted to use this proceeding or Court as a forum to ... air her discontent with the attorney disciplinary system generally, or grievances against Judge Becker specifically", Affirmation of Attorney Coan, pages 13-14, paragraph 30.

In other words, Allison Coan asked the court to deny me even the opportunity to be heard on my facial and as-applied constitutional challenges to attorney disciplinary system in state court, which was diametrically opposite to the Committee's claim to the federal court that I will be allowed to do just that in state court.

Apparently, Attorney Coan failed to read statements made by attorney Bruce Boivin on her behalf on March 20, 2014 which triggered the court to apply the Younger abstention.

Had the court been presented the statement of Allison Coan made later to the state court, requesting the state court NOT to consider my federal constitutional claims, the federal district court would have been constrained to deny dismissal of my federal constitutional claims on the Younger abstention grounds.

Then, Allison Coan (1) claimed my request to disqualify her committee for bias is frivolous;  (2) after saying that the Committee made an ex parte application for an order of transfer of the case to the 4th Department anyway, and the two Committees, of the 3rd and 4th Department, and the two courts, the 3rd and 4th Department, to this day stall me from obtaining accesss to the Committee's ex parte application that already resulted in an ex parte order of June 11, 2014 transferring the case to the 4th Department.

In the 4th Department, attorney Mary Gasparini continued prosecuting and endorsing every word the 3rd Department said, including Allison Coan's statement that I should not be allowed to use state courts as a forum to air my "general grievances" (federal constitutional challenges) to the attorney disciplinary system.

As a culmination of those efforts, on September 30, 2014 the 4th Department court agreed not to give me a forum to raise federal constitutional challenges by denying my cross-motion raising such challenges without one syllable of an explanation.

At this time, the 4th Department has "held" and "reserved" a summary judgment for the prosecution while at the same time ordering a trial before a referee (an incompatible task, as any law student tested on what a summary judgment is would tell you).

Yet, in view of those same constitutional infirmities of the attorney disciplinary system that the court refused to address, why would the court care about compliance with the law if it knows that I have no right of appeal and no recourse from whatever the court may do with me).

To make appearances of impartiality, the court assigned a referee to hear factual issues while a motion for a summary judgment is still unresolved.

Yet, it bears mentioning, what kind of referee was assigned.

Last November, New Yorkers by overwhelming majority rejected an amendment of the state Constitution as to the proposal of the judiciary to extend the mandatory retirement age of judges to 80.  Apparently, you the people of the State of New York considered it prudent and ensuring a fair trial when judges retire at the age of 75.

The Legislature pushed a little farther anyway with the age of court referees, but still cut it off at the age of 76.

I was appointed a referee who turns 80 on October 16, 2014, to hear an enormous amount of facts that the court did not analyze in its decision of September 30, 2014.

In other words, the review of an extremely complex case and my fate is now rested on the shoulders of an octogenarian.

A brilliant move.

Moreover, the referee is a retired judge out of Wayne County Court, even though by law, Judiciary Law 114, 115, a retired judge out of Wayne County court is not entitled to serve as a court referee, and a cut-off age for such a referee if he/she is qualified (which my referee is not) is 76 years of age, while my referee, according to publicly available information, retired because he turned 75 in 2009, and turns 80 on October 16, 2014.


  •  if the court and the prosecution allows themselves to display such a disdain to the rule of law as it was displayed in my disciplinary case, while disciplining an attorney,
  • if breaking the law is done by the court and the prosecution in order (allegedly) to protect the public (from my zealous advocacy on behalf of my clients),

what can the same court do to you, ladies and gentlemen, when zealous advocates like me are quashed and other members of the bar are intimidated by my example and example of attorneys like me, also disciplined for the contents of their advocacy for their clients, and will refuse to raise for you issues that are essential to your cases - for fear of retaliation from the judiciary?

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