Friday, December 16, 2016

A certiorari petition to the U.S. Supreme Court from California attorney Charles Kinney echoes dissent of California Supreme Court Judge Kennard in 2000, my pleadings in federal court in 2013 and U.S. Supreme Court cases decided in 2015 and 2016. What will the U.S. Supreme Court say?

I was alerted by a reader of a case pending in front of the U.S. Supreme Court, Docket No. 16-606, challenging attorney regulation on antitrust grounds:

There is no link on the site of the U.S. Supreme Court to the petition for the writ of certiorari, as the Petitioner is Pro Se - but the author of the petition kindly provided a copy of his petition to me for publication.

 Questions for review Nos. 2 and 3 of the petition directly challenge legitimacy of attorney regulation from the point of view of federal antitrust laws (civil and criminal), which now include:
Petitioner, attorney Charles Kinney, an attorney with 35 years of experience, challenges that


Attorney Kinney also raised in his petition the issues of:

1) accuser-adjudicator (interested prosecutor) conflict in attorney disciplinary proceedings in California, where both the prosecutors and the hearing officers are appointees of the market participant State Bar of California, a professional corporation of California licensed attorneys, competitors of those sought to be disciplined;

recently the U.S. Supreme Court, in Williams v Pennsylvania, decided in June of 2016, declared proceedings decided by accusers-ajudicators as a violation of due process rendering such decisions void;

2) political motivation in deciding attorney disciplinary cases, and deciding cases in a way that hurts the public


that includes

  • backroom selection of judges;

  • corruption of judges by litigants paying part of judicial salaries and providing benefits to the judiciary, and

  • improper use of attorney disciplinary proceedings, in violation of attorneys due process of law, and without any lawful basis for discipline, as a sword used to eliminate whistleblowers of judicial misconduct, rather than, as it is supposed to be, a shield of consumers against dishonest or incompetent attorneys;

  • improper use of vexatious litigant orders and blocking whistleblowers from access to court; and

  • operation as organized crime requiring its members to commit criminal acts in order to "belong":






 Attorney Kinney calls
  • consolidation of the judiciary and California State Bar as an organized crime entity,
  • corruption within the California judiciary,
  • the use of vexatious litigant and attorney disciplinary process to eliminate whistleblowers of such corruption, and
  • rewards by the judiciary/California State Bar of "like-minded" attorneys supporting and condoning the functioning of California judiciary and California State Bar as an organized crime entity

as cancer, and indicates in his petition that cancer is sometimes difficult to discern when it just starts, but only when it grows (and, I will add, often when it becomes terminal for the system where it has grown and metastasized):



Attorney Kinney describes his specific situation and points out that discipline imposed upon him for the benefit of judges and California State Bar bureaucrats actually hurt the public and constituted a group boycott of whistleblower attorneys:

Attorney Kinney describes California disciplinary rules that allow attorney disciplinary cases to be investigated, prosecuted and adjudicated by active market participants, without statutory approval or active state supervision, in violation of the Sherman Act and North Carolina Dental:


Attorney Kinney asserts a very basic, foundational jurisdictional principle of the rule of law that a court of law does not have authority to issue orders inconsistent with state and federal statutes and state and federal Constitutions:


and argues that attorney discipline imposed in violation of statutes, rules of procedure in the disciplinary case, based on void and unconstitutional court orders and with violations of the attorney's due process of law are void as being jurisdictionally defective and invalid:



Attorney Kinney legitimately raises the issue that when competitors, without a statutory approval by the California Legislature and without active state supervision by a neutral state entity, block an experienced attorney from doing his job, that is a matter of public concern:



The petition raises issues of violation of 1st (free speech) and 14th (due process) Amendments, and stresses that denial to an attorney of a right to appeal the order of discipline, and especially when such denial is done by an active market participant, requires strict scrutiny and warrants review by the U.S. Supreme Court:


The petition raises an interesting question of law where the decision of administrative hearing officer becomes "final" when the California supervising court simply remains silent - so there is no judicial review in attorney disciplinary process in California:






I wrote in my previous blog about


I also wrote that California State Supreme Court has long ago made attorney regulation and discipline senseless by claiming that representation by a criminal defendant by a suspended attorney - in violation of regulations and criminal laws against unauthorized practice of law - does not deprive the criminal defendant of effective representation of COUNSEL, for purposes of constitutional right to counsel under the 6th Amendment of the U.S. Constitution, Gideon v Wainright.

When the same State of California claims that constitutional right to "counsel" under the 6th Amendment of the U.S. Constitution may be satisfied by an unlicensed attorney, the whole idea of licensing for protection of consumers becomes a mockery - and a trick designed to protect the legal elites from competition.


I am not the only one who is raising the issue of corruption in California judiciary and State Bar.

Recently, a two 1.5 hours documentary videos were produced and posted in public access on YouTube, Scandal in the State Bar, Part I and Part II - providing a unique insight into the details of such corruption.

Part II  - describes selective enforcement of attorney discipline against solo and and small-firm attorneys, while also describing, as a comparison, lack of discipline against three attorneys connected to the State Judicial Council and to a non-profit that provides benefits for judges and where the State Bar's "special prosecutor" sat on the same Board as the attorney he was supposedly "investigating" - which resulted in no mandatory reciprocal discipline at all, even though these three attorneys were all disciplined (also very lightly considering their misconduct) in federal court for a disbarring offense - a $489 million dollar fraud upon the court (forgery of an foreign court decision).

The difference in draconian discipline against solo attorneys and lack of discipline against the three connected attorneys (I will run a separate blog about that story) is personal connections to the judiciary, political donations, and the fact that the law firm of Thomas Girardi, one of the connected attorneys subject at that very time to a state reciprocal disciplinary investigation of his fraud upon the federal court for which he was already disciplined (and usually reciprocal discipline is automatic, without an investigation) reportedly serenaded - literally - the Chief Judge of California State Supreme Court by paying for performance of the entire philharmonic orchestra and opera singer in front of the invited judge.


I am currently researching some episodes and claims made in that video and may follow up with blogs regarding more judicial corruption in the California judiciary and State Bar and more cases of retaliation against attorney whistleblowers, or civil rights attorneys who are usually the targets of retaliative discipline.


I also repeatedly write on this blog about judicial misconduct and retaliation against attorney whistleblowers who dare to expose such misconduct, which is happening across the United States.

 The so-called "mainstream" media and the timid "professional" law review authors, blawgers and law professors prefer not to cover this topic of - as Attorney Charles Kinney correctly says - cancer rotting the American judiciary and legal profession from within, or cover it with unwarranted curtsies towards the judiciary, with claims, unsupported by evidence, that "the majority of judges are honest hard working people, but there are some rare bad apples".

 The "honorable" legal profession, seized by fear, prefers, in their majority, to keep their licenses and remain silent - even if a client or two (or three, or more) will, as a result of their silence lose their cases through review by biased and corrupt judges.

 California is not unique in silencing whistleblowers.

 New York silenced many - from
  • attorney John Aretakis (suspended in 2008, without a right of automatic reinstatement, and remains suspended) for exposing sexual abuse by Catholic priests, to
  • Doris and George Sassowers,  disbarred (George in 1987) and suspended (Doris in 1991) when Doris Sassower started to challenge corruption in New York judicial nomination and election process, to
  • Frederick Neroni (disbarred in 2011) and Tatiana Neroni (suspended in 2015) - for exposing and challenging judicial misconduct in motions to recuse and in assigned criminal appeals.

 Therefore, I've made it a point, since this blog has started in 2014, to name the culprits of judicial misconduct, the attorney whistleblowers who are unfairly made to suffer for doing their professional duty - reporting judicial misconduct in order to secure impartial access to court for their clients (and for themselves, if they proceed in certain cases pro se), and to follow the tendency, which has grow not only into cancer, but into an epidemic of retaliation against attorneys trying to do their jobs and challenge judicial misconduct.

 I wrote previously that my own petition for the writ of certiorari was filed, docketed, Docket No. 16-664, is also currently pending in front of the U.S. Supreme Court, and is also raising issues of improper attorney discipline used as a sword against whistleblowers, and as an unconstitutional content-based regulation of speech, having an effect of widening the already wide "justice gap" in the United States, to the public's detriment.

 It remains to be seen whether the U.S. Supreme Court will finally take for review a case of attorney-whistleblower discipline, or let the cancer metastasize further without treatment.

 We will learn about that soon.

 Attorney Kinney's petition is distributed for the U.S. Supreme Court's conference for January 5, 2017.

 My petition awaits answer or waiver of answer by my opponent, and its fate, whether the review on the merits will or will not be given, will be decided by the U.S. Supreme Court.

 Wrongful application of discipline against attorneys for doing their jobs and exposing judicial misconduct hurts not only attorneys.

 In Pennsylvania, for example, attorneys' silence as to judicial misconduct, out of fear of retaliation, already resulted in many years of illegal incarceration of children - and a suicide of at least one child.

 Yet, the Pennsylvania judiciary continues to retaliate against civil rights attorneys - such as civil rights solo attorneys Andy Ostrowski and Don Bailey - and went so far as criminally convicted the State of Pennsylvania elected Attorney General when she exposed judicial misconduct and corruption, while continuing to hide from the public the names of those involved in judicial and prosecutorial misconduct that Kathleen Kane's investigation uncovered.

 The anticompetitive and retaliative use of attorney discipline against civil rights, Family Court, criminal defense and other solo and small-firm attorneys working for the poor widens the already wide justice gap and hurts - badly - the most vulnerable members of the public who could benefit by such attorney's services.

 After all, those who pay for philharmonic orchestras and opera singers to serenade Chief Judges of State Courts do not usually represent the poor in Family Court, criminal, foreclosure, landlord-tenant or consumer debt cases.

 In 2000, Judge Joyce L. Kennard (who now retired) issued a seminal dissent in a California Supreme Court decision In Re Rose that has stated much of what the U.S. Supreme Court has stated in its majority opinion in North Carolina Dental in 2015.

 I would like to provide Judge Kennard's dissenting opinion here in full, with comments:

In his currently pending petition for the writ of certiorari in the U.S. Supreme Court Attorney Charles Kinney raises exactly that same issue - denial to California disciplined attorney of any judicial review whatsoever:

In 2000, Judge Kennard raised in her dissent the issue that procedures denying disciplined attorneys in California the right to judicial review are unconstitutional under the California State Constitution.

Attorney Kinney contends in his currently pending petition before the U.S. Supreme Court that attorney regulation in California is void as unconstitutional also under the U.S. Constitution:

Moreover, in 2000, Judge Kennard raised the issue of equal protection of attorneys, as holders of occupational licenses - as opposed to holders of other occupational licenses (the issue which I, without knowing of Judge Kennard's opinion, raised on my own on behalf of my husband in federal case Neroni v Zayas, dismissed "for failure to state a claim", dismissal affirmed on appeal in a summary non-precedential order, and dismissal resulted in imposition of an anti-filing injunction upon my husband in the U.S. District Court for the Northern District of New York):


Compare with the twelfth cause of action in Neroni v Zayas (starts at p. 69 of the Amended Complaint):







Here is what the U.S. District Judge Lawrence E. Kahn said about the 12th Cause of Action in Neroni v Zayas - the one that coincided with the dissenting opinion of 2002 by Judge Kennard, of the Supreme Court of the State of California in In Re Rose:

 for cheerful starters, Judge Kahn immediately pointed out that the entire complaint of my husband is related to his disbarment




- thus from the very start painting my husband as being below the law - even though many causes of action, as the 12th Cause of Action was, was challenging discrimination of attorney regulation with regulation of other regulated professions in New York.


In no less cheerful "Background", in the very first phrase, Judge Kahn claimed that the Amended Complaint in Neroni v Zayas, as a whole, is "lengthy, convoluted, digressive and redundant" (of course, every civil rights case is subject to a dismissal - as Judge Kahn did) for "failure to state a claim" which federal courts interpret as failure to allege ENOUGH facts - under such circumstances, federal courts invite redundancy as a precaution, but here is the excerpt from Judge Kahn's order of dismissal:

Such a start of a court order usually spells out for the litigant that the litigant should not expect impartiality from such a judge - and especially in a case where pleadings must be LIBERALLY construed IN FAVOR of a non-moving party, in other words, by blasting the civil rights complaint that I drafted for my husband as:
  • lengthy,
  • convoluted,

  • digressive, and

  • redundant
As you can see from dictionary definitions of "convoluted", "digressive" and "redundant", these three attributes, combined with "lengthy", produce a very interesting impression of Judge Kahn's judicial review of the civil rights lawsuit for purposes of a motion to dismiss:

  • I made the complaint unnecessarily long (lengthy);
  • I veered from the main topic of the complaint (the topic which is for the Plaintiff to decide and not the judge, but Judge Kahn, by using the word "digressive" implies he understands what is the "main" topic of the complaint from which I allegedly "digress"), yet, then Judge Kahn claims that the complaint is both:
  • "convoluted" (too complex - for his understanding, apparently), and
  • "redundant" at the same time.
What I read in these four epithets is - judicial frustration: "why do I have to read these 87 pages from a disbarred attorney who does not have any rights anyway, no matter what he says"?

If that is "liberal construction" of my pleadings in my client's favor, required by law, then, I am Santa Claus.  Well, you be the judge how convoluted, digressive or redundant the civil rights lawsuit actually was, here it is once again.

And, here is what Judge Kahn, lilberally construing the 12th Cause of action in my client's favor, said about it - and the 2nd Circuit affirmed:


The only thing that Judge Kahn  understood from reading the 12th cause of action is:


  • that it seeks a declaration that attorney disciplinary system in New York is unconstitutional
  • through a "rambling assemblage of words".
Here is, once again, the "rambling assemblage of words", the 12th Cause of Action in Neroni v Zayas:





It contains just 9 paragraphs, and I wonder what exactly Judge Kahn found as "rambling assemblage" and did not understand.

Actually, the 12th Cause of Action in Neroni v Zayas is nearly identical to the dissenting opinion of Judge Kennard in In Re Rose regarding discrimination against attorneys by the State of California as opposed to regulation of other licensed professions:




Apparently, what constituted a "startling anomaly" for Judge Kennard, of the California State Supreme Court, was business as usual for federal U.S. District Court judge Judge Lawrence E. Kahn who considered a clearly worded challenge to this "startling anomaly" a "rambling assemblage of words" - and dismissed it.

 Of course, possibly, Judge Kahn's problem was not that Neroni v Zayas was a "rambling assemblage of words", but that it spelled out too clearly - as the petition of California Attorney Charles Kinney to the U.S. Supreme Court does - the woeful problems of how attorneys are regulated in New York:

 the conflicts of interest and interest to quash competition through attorney disciplinary proceedings:




At the time I wrote these words, Dr Hany Ghaleb, likely on behalf of Carol Malz, got even with me and brought a disciplinary proceeding against me that eventually resulted in my suspension.

 Here is what I said in Neroni v Zayas in February of 2013, in the 10th Cause of Action (as one of the examples) - directly coincides what the U.S. Supreme Court said in North Carolina Dental in February of 2015, 2 years later (even though the dismissal of Neroni v Zayas is still resulting, at this time, in an anti-filing injunction against my husband as if the claims now recognized by a U.S. Supreme Court precedent are somehow "frivolous"):











And here is what the U.S. Supreme Court stated regarding regulating a profession by super-majorities of competitors of those sought to be regulated, disciplined and deprived of their right to practice their profession and earn a living:


 And, "active supervision", as the Federal Trade Commission explained in October of 2015, is not supervision by holders of the same occupational licenses (like "supervision" of attorney disciplinary committees by judges, themselves licensed attorneys):



 What Judge Kahn obviously also did not like - which was also spelt out much too clear was:


  • that attorneys in New York are not provided with
    • rights to discovery and jury trial

  • elevated standard of proof, as in forfeiture proceedings:

  • denial of right to appeal (rules of attorney discipline were amended in 2015 to allow some discovery, but not as much as allowed in other civil cases, and still no right of appeal);

  • disparity in standards of proof between revocation and reinstatement of attorney license:


  • improper use of collateral estoppel (denial of a due process hearing before revocation of the license) in attorney disciplinary proceedings - which was done to John Aretakis, the attorney who outed sexual abuse of children by Catholic priests, and was immediately suspended in 2008 without a hearing, then to my husband in 2011 and, after I filed Neroni v Zayas and challenged such a use of collateral estoppel, on behalf of my husband, as a due process violation, it was done to me in 2015:

In connection with our claims in Neroni v Zayas of constitutional infirmities of attorney disciplinary proceedings in New York, such as: 

  1. the lack of right to discovery,
  2. lack of right to a proper evidentiary hearing (jury trial), especially when a collateral estoppel is applied to a proceeding which is deemed criminal in nature,
  3. no right to subpoena and confront witnesses,
  4. no right to appeal,
  5. low evidentiary standard of proof, not matching the criminal or quasi-criminal nature of the proceedings;
  6. a disparity of standard of proof between revocation (preponderance of the evidence) and reinstatement (clear and convincing evidence) of attorney licenses,
  7. secret formation and
  8. anti-competitive composition of attorney disciplinary boards and
  9. lack of mechanisms of recusals for conflict of interest -
  10. I rose in Neroni v Zayas the issue of separation of powers, which was at the root of all those above mentioned constitutional infirmities:

that all those procedural constitutional infirmities are created by the disciplinary court that, at the same time,

  • appoints investigators and prosecutors,
  • legislates procedural and substantive rules of disciplinary proceedings,
  • is considering disciplinary prosecutors as its own "arm", thus merging with the prosecutor and presenting an "accuser-adjudicator" problem (prohibited by the U.S. Supreme Court in Williams v Pennsylvania in 2016); and
  • adjudicates attorney disciplinary proceedings.

My "problem", as Neroni v Zayas clearly reveals, is not that Neroni v Zayas was a "rambling assemblage of words", as Judge Kahn said, but that the challenge was too clear, too comprehensive, and too true - and required overhaul of the entire attorney disciplinary system in New York (which was a concern expressed on behalf of defendants in that case in their pleadings).

By the way, here is how Judge Kahn "resolved" the 10th Cause of Action in Neroni v Zayas, challenging composition of attorney disciplinary committees on:

  1. antitrust grounds - where the U.S. Supreme Court later agreed with my position in 2015 in North Carolina Dental; and on
  2. accuser-adjudicator/interested prosecutor grounds - where the U.S. Supreme Court later agreed with my position in 2016 in Williams v Pennsylvania:

you will simply not find a decision on the 10th cause of action (composition of the attorney grievance committee of a super-majority of market participants) - a convenient way out by Judge Kahn.

My "problem" in Neroni v Zayas was that I was asking "too much":


My other big problem was that I was right, and as Judge Andrew Napoletano said in his book, it is dangerous to be right when the government is wrong 




- or to be right ahead of the government whose operatives have no ideas of their own, but prefer to steal yours - and then demonize and harass you so that the stealing of ideas would not be so obvious.


For example, in the 9th cause of action in Neroni v Zayas, I claimed, on behalf of my husband as client, equal protection violation because of disparity of rules of attorney discipline between four intermediate appellate courts in New York.


This cause of action was drafted and asserted by me on behalf of my husband in January (initial complaint) and then February (amended complaint) of 2013.

 In March of 2014, Judge Kahn dismissed this cause of action for failure to state a claim while ignoring to even mention it in the order of dismissal.

 After obtaining dismissal of that cause of action, in March of 2015, the then-Chief Judge Lippman (co-Defendant in Neroni v Zayas) announced formation of "New York State Commission on Attorney Discipline", populated it with a super-majority of market players, and with some co-defendants from Neroni v Zayas, and the Commission, together with Lippman, shamelessly promoted contents of challenges plagiarized from Neroni v Zayas (that Lippman and codefendants claimed are frivolous, and obtained a dismissal from the federal court) as Lippman's and the Commission's own move towards "uniformity and fairness", which the legal community lauded as the Commission's "boldest recommendations".

 Moreover, after the new rules of attorney discipline were already in place, Lippman fought tooth and nail against my husband's appeal of the dismissal, and against my husband's motion to vacate dismissal of Neroni v Zayas based specifically on the Commission's "Report and Recommendations" and on introduction of new rules of attorney discipline, 22 NYCRR 1240, promoting many of proposals that I drafted on my husband's behalf in Neroni v Zayas, and which were dismissed by Judge Kahn, at Judge Lippman's request, as frivolous.

 So, I was right - but I was not the "right" (connected) person to be right, and I was right "ahead of time".

 Being not the "right" person to be "right" and being right ahead of time is punishable in New York.

 And, it is not punishable, and is even laudable in New York to:
  • claim to a court of law that my ideas in Neroni v Zayas are "frivolous", incomprehensible rambling, 
  • have them dismiss as "rampant assemblage of words",
  • then turn that "rampant assemblage" into a pioneering move toward "uniformity and fairness",
  • announce the plagiarized ideas, without attribution to Neroni v Zayas or its drafter, as "move towards uniformity and fairness" in attorney regulation, which was paraded as "boldest recommendations" of the Commission,
  • implement those "incomprehensible rambling" ideas, at least some of them, into new court rules of attorney discipline, 22 NYCRR 1240,
  • and then fight an appeal of dismissal of the source of 22 NYCRR 1240, and fight the motion to vacate the true source of 22 NYCRR 1240, while the motion was made on obvious grounds - if it is a new pioneering positive ideas implemented into the new rules of attorney discipline by the very defendants in Neroni v Zayas - how come Neroni v Zayas should remain dismissed as frivolous and be the basis of an anti-filing injunction, blocking its author from filing new civil rights lawsuits without court approval?
By the way, the fight against my ideas in Neroni v Zayas continued

  • not only despite acceptance by defendants of many of those ideas in 22 NYCRR 1240, but also
  • despite recognition of the U.S. Supreme Court of my 10th Cause of Action in Neroni v Zayas (anti-competitive composition of attorney disciplinary committees) in North Carolina Dental in 2015 and
  • despite recognition by the U.S. Supreme Court of my challenge in Neroni v Zayas of interested prosecutor/separation of power/ attorney-adjudicator infirmity through Williams v Pennsylvania in 2016.
In fact, defendants continue to fight my husband's now pro se motion to vacate dismissal of Neroni v Zayas in the U.S. District Court for the Northern District of New York - which is frivolous and in complete defiance of existing law and common sense, but defendants in Neroni v Zayas have a lot of power, and, as I have learnt about the legal profession during the years that I worked in it, and during the years that I researched it, in the legal profession, claims of the rule of law, justice and fairness are smoke and mirrors, and the real rule is by connections, fear and greed.

I am looking forward to see whether the U.S. Supreme Court will accept for review attorney Kinney's and my own petition for a writ of certiorari asking the U.S. Supreme Court for not much really - for fairness and consistency in application of its own precedents, and for enforcement of the U.S. Constitution to the profession that is supposed to secure for all Americans a vital constitutional right, the right to impartial judicial review.

Whatever the decision of the U.S. Supreme Court, I will announce it - and will continue to monitor conceptual development, or rather, falling apart, of attorney regulation in the United States.

Yet, there is a silver lining in all of this mess.

 If they stole my ideas and implemented at least some of them, even in a castrated form, as New York did with my ideas from Neroni v Zayas in 22 NYCRR 1240, they are afraid.

 Afraid that another, further lawsuit, from somebody else, on the same subject, will be more successful than ours was.

And it will be.

The wheels of justice go forward - even if slowly and not so steadily.











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