"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.

Saturday, August 22, 2015

The U.S. Court of Appeals for the 2nd Circuit: the Rooker-Feldman bar does not apply to orders out of New York Family Court

The writ of certiorari currently pending in the U.S. Supreme Court - that I promised to analyze, and I am starting to do it in this blog - points out at an opportunity for New York parents or other parties suing for constitutional violations in New York Family Courts.

 I have been pointing out to federal courts since 2011, but the Northern District of New York and the 2nd Circuit (the federal appellate) court rebuffed my arguments without a precedential opinion - which means that the decision in 1999 of the same 2nd Circuit court that the 2nd Circuit refused to recognize on my appeals, is still a valid precedent in the 2nd Circuit.

In the decision, and in this blog post what is described is the Rooker-Feldman doctrine.  Even though presented in complicated terms, it is not a complicated doctrine, and pro se civil rights plaintiffs should be aware of the doctrine itself, its flaws, and how it can be fought.  

It is based on federal appellate statute and provides that lower federal courts do not have jurisdiction to entertain civil rights actions that are asking to review decisions of state courts where the plaintiffs lost, because the only remedy to object to a state court decision is to appeal, first within the state court appellate system, and then to the U.S. Supreme Court.

In my view, the Rooker-Feldman doctrine is unconstitutional, because:

1) at no time the U.S. Congress ruled in the statute upon the Rooker-Feldman doctrine relies, 28 U.S.C. 1257, as abridging jurisdiction of federal district courts regarding claims brought under 42 U.S.C. 1983;

2) there is no condition precedent requirement that federal claims must be first brought in state court before suing in federal court;

3) the doctrine is circular and thus devoid of any rational basis since it first presumes that any federal constitutional claims must be brought in state courts that have concurrent jurisdiction over federal constitutional claims, and then bars federal actions in federal court, where under a federal civil rights statute where federal district courts clearly have jurisdiction over such claims, because such claims were or SHOULD HAVE been brought in state courts that already ruled on a claim.

I will give you an example to illustrate what I said in point 3) above.

  • You have a federal constitutional claim, the government within the state, of any level, local to state, has violated your constitutional rights.
  • You, as a federal civil rights plaintiff, have a choice of forum (court) where you want to bring this claim.  
  • For reasons that are obvious you want to wait and bring it in federal court, within the (court imposed) statute of limitations of 3 years for federal civil rights claims arising out of the State of New York (there is no statute of limitations in the text 42 U.S.C. 1983, so imposition of such statute of limitations on constitutional violations is in itself yet another unconstitutional legislating from the bench by federal courts in violation of their Article III restrictions on jurisdiction and in usurpation of the Congress's exclusive Article I power to legislate or amend existing legislation).
  • While you are waiting for 3 years - getting money together for an attorney, investigating the case and preparing it - a state court makes a decision on the same set of facts out of which your federal constitutional claims arise.
  • You know that the federal Civil Rights Act does not require you to bring federal civil rights claims in state court, and does not force you to litigate your federal civil rights claims in state courts.
  • Yet, when you bring a federal civil rights claim in federal court, the government moves - and federal courts more often than not grant - a dismissal of your federal lawsuit on the basis of the Rooker-Feldman doctrine, saying that you had an "opportunity to litigate" in the court of "competent jurisdiction" in state court, and now federal court somehow does not have authority to review your federal claim.
  • That makes no sense because (see above) 42 U.S.C. 1983 does not require you to litigate your federal claims in state courts, so federal district court does not have authority to tell you that you "should have" litigated your federal claims in state court, and does not have authority to tell you that your only remedy to raise your federal claims is on an appeal from the state court decision.
  • Yet, Rooker-Feldman dismissals have become the rule rather than exception in federal courts trying to clear their dockets of the bothersome civil rights cases - again, without any authority to do so.
As I said, the entire Rooker-Feldman doctrine appears to me as unconstitutional legislation from the bench in an unlawful effort of federal courts to help out state governments to exercise social control mainly over populations vulnerable to unlawful oppression on behalf of the government - the minorities, the poor and the critics of misconduct and flaws in the system, and to clear the docket.

But, surprisingly, there in the record of the U.S. Court of Appeals for the 2nd Circuit there appears a gem of wisdom (at least a partial gem of wisdom, if such a thing exists) - a case called  King v State Education Department, 182 F.3d 162 (2d Cir., 1999), full text of the precedent is available here, by which the 2nd Circuit court affirmed a judgment imposed upon the government in reimbursement of child support that parents of a disabled student had to pay, in violation of federal law, but by the order of a New York Family Court.

Usually, whenever a court order is involved, the 2nd Circuit rubber-stamps a dismissal under Rooker-Feldman.  Moreover, the 2nd Circuit defies its own precedent by doing it now, while the "King" decision remains on the books since 1999, by affirming improper Rooker-Feldman dismissals by "non-precedential" "summary" opinions which involve no analysis, but simply rubber-stamp the "thoughtful" decisions of the lower courts. 

This way, the fact that the decision to affirm a certain Rooker-Feldman dismissal runs contrary to the court's own precedent (and logic, fairness, common sense and the U.S. Constitution), and such behavior is not justified by "thoughtfulness" of improper Rooker-Feldman dismissals by district courts, does not come into view, unless a particularly feisty researcher looks through Rooker-Feldman dismissals in district courts and matches them to "non-precedential opinions" in the 2nd Circuit and makes that information public.

The King case was about an award of $104,564.32 to civil rights plaintiffs, including interest and attorney's fees, pursuant to Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. (1994), "as reimbursement for amounts they paid to defendants pursuant to orders of the New York State Family Court for support of a child placed in a residential program".

The case says, and I quote:

        "In an Opinion and Order dated November 12, 1997,
        the district court denied DCDSS's motion to dismiss, 
        finding that the Rooker-Feldman doctrine was inapplicable
        because the Family Court is a court of limited jurisdiction
        and that its jurisdiction does not extend to claims
        under the IDEA.  We see no error in the conclusion.
        The New York State Family COurt is a court of limited
        jurisdiction, see e.g. Kleila v Kleila, 50 N.Y.2d 277, 288,
        428 N.Y.S. 2d 896, 899 (1980), (a NY State Court
        of Appeals case - note by T.N.). As such, it has the power
        to entertain only those applications that are specifically
        enumerated in the New York State Constitution or
        the applicable statute, see e.g. Roy v. Roy, 109 A.D.2d 150, 
       151, 491 N.Y.S.2d 202, 204 (3rd Dep't 1985)."

The court goes further and states:

       "To the extent pertinent here, the State Constitution vests 
       the Family Court with original jurisdiction over proceedings
       for "the support of dependents except for support incidental
       to actions and proceedings in this state for marital separation,
       divorce, annulment of marriage or dissolution of marriage",
       N.Y. Const., Art. VI, paragraph 13(b)(4).  The Family Court            Act
       lists a number of "factors" on which that court is to predicate
       its findings with respect to support, but none of those factors 
       concerns rights conferred on parents by federal law. See
       N.Y. Family Court Act paragraph 413(1)(f)(McKinney, 1999)".

And, as the final nail into the coffin of Rooker-Feldman application to orders of New York State Family Court:

      "Although paragraph 413 (1)(f) contains a catch-all clause 
      allowing consideration of "[a]ny other factors the court
      determines are relevant in each case", id., 413(1)(f)(10),
      we are not aware of any authority suggesting that
      that clause was meant to give the Family Court jurisdiction
      to decide claims of right arising under federal law.
      Indeed, at oral argument of this appeal, plaintiffs re-
      presented, with no semblance of any contradiction by
      [the Duchess County Department of Social Services - DCDSS],
      that in the Family Court proceedings concerning the Kings,
      the judge refused to allow plaintiffs to assert their IDEA
      claim.  We conclude that the district court correctly ruled
      that the Rooker-Feldman doctrine did not bar the present suit".


This gem is on the books for 16 years now in the 2nd Circuit.

And the 2nd Circuit and the lower court systematically apply Rooker-Feldman to orders from New York Family Court (they did it in my civil rights lawsuits after 2011, 12 years after the governing precedent was placed on the books, and through non-precedential decisions) - in violation of all plausible rules that courts must abide.

Yet, the LAW that the 2nd Circuit has established in 1999 and that remains a governing precedent in that Circuit for the State of New York is:

When social services take a child away from a parent and then bring the parent into support proceedings and obtain against the parent a court order of support out of New York State Family Court, the parent has an opportunity to sue the suckers in federal court (at least where violations of federal Individuals with Disabilities Act is involved - and it is involved very frequently, because Social Services regularly seek to get into their custody children with disabilities in order to get their grubby hands on children's federal money and money provided by federal government to social services for foster care and adoption of children out of foster care, where more money is given for disabled children) and get back child support with interest and attorney's fees.

And, the ruling that New York State Family Court is not a court of competent jurisdiction for purposes of Rooker-Feldman analysis is applicable to all federal civil rights actions - because federal claims, especially claims of constitutionality of Family Court's own jurisdictional statute, the Family Court Act, are not within the limited jurisdiction of the Family Court to resolve - and the appellate federal court already ruled that such jurisdictional limitations preclude application of the Rooker-Feldman jurisdictional bar, allowing such federal civil rights lawsuits by parents against social services (and other "state actor" defendants in civil rights actions who violated their constitutional rights in Family Court) to proceed.

And parents whose rights (and rights of their children) are violated should not let it slide and should use this precedent to get their support payment back from social services.  Maybe then social services will be not so eager to unlawfully take children away from their parents through the rubber-stamp decisions of New York State Family Courts that virtually always take the side of social services over parents.

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