Digest of Grazzini-Rucki petition for a writ of certiorari to the U.S. Supreme Court, challenging absolute judicial immunity

As promised, here is the digest of what I consider the most important points in the Grazzini-Rucki petition that challenges before the U.S. Supreme Court the concept of absolute judicial immunity (the full text of the petition is available here).

I would divide the analysis in the petition in two parts (the petition does not make a division in parts I and II like I do, division in parts in the petition is different, division in Parts I and II is my division based on my own analysis of the petition).

Part I - challenge to legality of the concept of absolute judicial immunity;

Part II (if argument in Part I fails) - challenge to misapplication or failure to apply by lower courts of "tests" invented by he U.S. Supreme Court to analyze whether absolute judicial immunity applies.

Under Part I, analysis covered the following:

1/ The U.S. Supreme Court, by Article III of the U.S. Constitution, is a court of limited jurisdiction (as all other federal courts) and does not have the power to legislate or amend existing legislation.  Power to enact and amend legislation exclusively belongs, pursuant to Article I of the U.S. Constitution, to the U.S. Congress.

2/ The U.S. Supreme Court gave itself, in the famous case Marbury v. Madison, authority to interpret - not change - the U.S. Constitution or federal statutes.

3/ Statutory interpretation does not include amendment of interpreted statute.

4/ Only ambiguous terms of a statute are subject to interpretation by courts.  If the statute is clear and unambiguous, courts have no authority to interpret the statute, but must apply it "as is".

Having stated these fundamental principles of the law, the petition then applied it to the concept of absolute judicial immunity, with the following results.

1/ 42 U.S.C. 1983, by statutory text, applies to "every person", not to "every person, but judges and people officially connected with judges".  

For that reason, 42 U.S.C. 1983, the scope of Civil Rights Act and its reach to "every person" is not subject to statutory interpretation and infusion of "absolute judicial immunity" (I would add - or other doctrines of immunity or deference invented by federal courts to absolve governmental officials from the reach of the statute).  Nor, by the way, the Civil Rights Act, is restricted by the so-called "state actors" - once again, it applies to "every person" who, under the color of state law, violate people's federally protected statutory and constitutional rights.

2/ Even if the U.S. Supreme Court WOULD have the right to reach behind the clear and unambiguous text (which it does not because it is, once again, clear and unambiguous, which does not give the court authority to interpret it), reasonable interpretation would have resulted in a decision that absolute judicial immunity does not apply to actions brought under the Civil Rights Act because the Civil Rights Act was enacted as a civil twin of a criminal statute that did not have in it absolute judicial immunity, and that it was a civil twin of the criminal statute, and that it does not make exception for judges based on the concept of absolute judicial immunity, is clearly reflected in the Congressional debates prior to enactment of the Civil Rights Act.

3/  The conclusion - "interpreting" absolute judicial immunity for malicious and corrupt acts on the bench as "implied" by Congress in enactment of the Civil Rights Act of 1871 is an unconstitutional act of the U.S. Supreme Court, in excess of its Article III power and in violation of the U.S. Congress's exclusive Article I power.

Part II -  misapplication and failure to apply tests invented by the U.S. Supreme Court in order to determine whether absolute judicial immunity applies (attorneys always provide alternative arguments in case one of them fails).

So, if the argument that the concept of absolute judicial immunity is unconstitutional, the petition then offers a "misapplication" argument.

There is a case by the U.S. Supreme Court and lower courts requiring federal courts to conduct analysis of whether a certain function claimed by the defendant-judge to be protected by the concept of absolute judicial immunity, existed at the time of enactment of the Civil Rights Act, in 1871, was considered a judicial function at that time and was afforded absolute judicial immunity at that time.

The petition points out to cases putting the burden of proof in that issue on the defendant-judge claiming the immunity.

The petition analyzes some cases showing that in the majority of cases where absolute judicial immunity is given, neither defendant-judges even try to analyze the common law in 1871, nor federal courts require such analysis, instead giving absolute judicial immunity for any act that is loosely interpreted as "judicial" NOW.   In other words, the petition points out that lower federal courts do not follow, in the analysis of application of absolute judicial immunity, even the "precedents" of the U.S. Supreme Court requiring federal courts to apply absolute judicial courts only when its applicability is PROVEN to them BY THE DEFENDANT-JUDGE, by analysis of the 1871 common law.

The petition points out that certain courts and certain functions, such as:

• the so-called "courts of limited jurisdiction" created by statute - family courts, probate courts;
• function of a court stenographer;
• function of a social worker - 

did not exist in 1871 and cannot be possibly granted absolute judicial immunity.

In sum, the petition is logical, based on existing case law of the U.S. Supreme Court, on solid references to statutes and Congressional records, and clearly points out that the doctrine of absolute judicial immunity is (1) unconstitutional legislating from the bench of the U.S. Supreme Court, contrary to clear and unambiguous language of a federal civil rights statute;  (2) that the doctrine is applied contrary to the "tests" created for that purpose by the same U.S. Supreme Court, giving blanket immunity to defendant-judges for any conduct, without any inquiry as to whether such conduct was considered judicial and was covered by absolute judicial immunity in 1871, as the U.S. Supreme Court requires defendant-judges to prove and the courts to find before they apply absolute judicial immunity.

In other words, the petition makes it clear (even though it does not say it - it is my personal opinion) that the concept of absolute judicial immunity is not only unconstitutional concept, but a self-serving concept by the judiciary, and it is applied in a self-serving way, to make the absolute judicial immunity absolute in all respects and not subject to any restrictions or tests - which is not and should not be possible in a democratic society, as NOBODY may be given a license to violate the law, and especially the main law of the country, the U.S. Constitution, without providing victims of such violations a remedy.

Sexual orientation, race, gender, or any other factors other than knowledge of the law and ability to be impartial and even-tempered is not a proper factor for choosing a judge to the New York State Court of Appeals, or to any other court

In June of this year (2015), Judge Read of the New York State Court of Appeals announced that she will retire early,  before her term expired.

Immediately, speculations began in the press as to who is going to be appointed in Judge Read's place and suggestions started to pour.

Appointments of judges are an interesting matter in New York.

Such appointments must be at least based on judicial qualifications, right?

Qualifications for a judge should be (exclusively):

• knowledge of the law;
• proven integrity, fairness and impartiality
• ability to be even-tempered with parties and counsel, under any circumstances

That's all.

Not party affiliation.

Not race or ethnicity.

Not gender identity.

Not sexual orientation.

Not origination from the poor or from the rich.

None of that.

It is presented to the public time and again that the judiciary is not the "political", or "representative" branch of the government.

In other words, judges do not represent certain segments of population, their work has nothing to do with "representing" the public and reflecting wishes of the public, but is to painstakingly review the record of the case in front of them, apply the existing law and make a fair ruling.  That's all.  A judge takes an oath of office to be fair and impartial to all parties and attorneys appearing in front of him or her.

Of course, then we have such judge as the Chief Administrative Judge of the 5th Judicial District Judge James C. Tormey who first orders attorney and court clerk Bobette Maureen to spy on a judge and judicial candidate for future election running on a Democratic ticket, to dig dirt about him, and when Ms. Maureen refuses, engages in a binge of retaliation, is sued for it, litigates for 4.5 years at the expense of taxpayers and then settles for $600,000, also out of taxpayers' pocket.  Only to be sued again, now by a female Spanish court interpreter, a Latino woman, also for discrimination and retaliation.  So - let me see, party affiliation and race/ethnicity matters for Judge Tormey, as well as gender identity - he discriminates only against women.

Recently, I wrote about judge Lisa M. Fisher of the Greene County Supreme Court, and her elated audio post-election interview where she described her tricks to lure "Democratic women voters" by statements that women are "under-represented" on the bench.  

Once again, there are only two qualifications to be a judge - knowledge of the law and integrity/impartialiry/fairness.  

For Judge Fisher and for those thousands of voters whom she swayed, gender identity was the key.   Moreover, Judge Fisher also pointed out that it was somehow a problem for her that for 18 years there has not been a "Republican" judge on the bench in her area. 

In other words, gender and party identity in a judge mattered to Judge Fisher - which raises issues whether Judge Fisher now sits on the bench ruling for women and Republicans.

We also keep reading about the "first" black, female, transgender, LGBT, whatever judge.  Which undermines two fundamental concepts pertaining to the judiciary:

1) that the judiciary branch is not a representative branch of the government;

2) that the judiciary must be impartial to all parties and counsel that appear in front of the judge, and should not favor members of their own class.

If that is so, why push for "the first" _____ (insert characteristic) judge on the bench.

Yesterday, the "first openly gay" legislator in New York State, Assemblywoman Deborah Glick, made a public statement stating that "it is time" to appoint a first LGBT judge.

Now, when New York State introduced legislation several years ago allowing same sex marriage, I supported the move, because, in my opinion, it is an equal protection issue.

When the U.S. Supreme Court found it in the U.S. Constitution that same sex marriage is constitutionally protected, I supported the move because I also believe that it is an equal protection issue, although issues of "retroactivity" to all those who were persecuted, denied rights and even criminally convicted for same sex emerge because the U.S. Supreme Court interprets the same U.S. Constitution that was passed in the 18th century, and the 14th amendment that was passed at the end of the 19th century, but keeps "finding" in it what it did not see there before.  

This "finding" process to me as a civil rights attorney who was punished for "frivolous conduct" for interpreting the U.S. Constitution in the way a federal court did not like, and I am far from the only one so punished, looks a little bit arbitrary and giving too much power to the U.S. Supreme Court. 

Yet, once again, I firmly believe that people should have same rights without regard to sexual orientation.

That said, such equality rights are irrelevant to judicial qualifications where the only things that matter are knowledge of the law and impartiality.

Who and how the judge has sex with or has sexual attraction to, which is the essence of sexual orientation, should have nothing at all to do with preferences for judicial appointments, and "pushes" for an LGBT judge (same as "pushes" for a female, black, Latino, Italian, Anglo-Saxon, whatever else judge) are completely inappropriate.

As much as the LGBT community, and Assemblywoman Deborah Glick as part of that community, wants to see "their own" on the bench, appointment of judges who are "representative" of a sector of the community destroy the remainder of the dwindling public trust in impartiality of the judiciary by a clear undertone that the judge which is part of a certain community will serve that certain community better than other litigants - which is a DISqualification for a judicial office.

It is enough conflict of interest that, as it is openly stated in the article, Deborah Glick, a lesbian herself, "helped pass" the same sex marriage law - even though interested parties should not participate in legislating, because it taints the legislation with self-interest and tells a lot about Deborah Glick's integrity.

Now Deborah Glick is "pushing" for an LGBT judge - while

1) she has no say in the matter;

2) she is in no position to influence the Governor;

3) influencing the governor as to judicial appointments based on factors that has nothing to do with judicial qualifications is plain wrong and tells adversely on the image of the legislator 

What I am also concerned about is the identity of the judge Deborah Glick is "pushing" for.

There are three openly gay appellate justices in New York, two women, former Lambda Legal Executive Director Rosalyn Richter and Elizabeth Garry, and Paul Feinman.

Elizabeth Garry and Rosalyn Richter were appointed by Governor Pataki in 2008, on the same day - clearly indicating that their homosexuality was a large part of the appointment decision, even though sexual orientation should have NOTHING to do with judicial appointments - even though the LGBT community pushes the issue as if appointment of "openly gay judges" is a step up in history, and a step toward a "more just judiciary".  What sexual orientation does or should have to do with judicial qualifications is, once again, a mystery for me.  

The press celebrated the appointments as a sign of social progress, instead of expressing outrage that factors that had nothing with judicial qualifications drove the appointments.

Judge Feinman, of the Appellate Division 1st Department, was appointed by Governor Cuomo in 2012 and was a former president of the International LGBT association who openly expressed elation, at the time of his appointment, that "the first gay man" was appointed to be an appellate judge in the State of New York.

Now, the question is, since Judge Feinman was so elated and stressed this "firstness" as some kind of an achievement, does it mean that for 3 years he "serves" his community better than others and has preferences to "his own"? Because otherwise, his being gay should not have been a factor in his appointment - as it clearly was.

I did not litigate in the 1st Department and do not know the record of competence and integrity of Judges Feinman and Richter.

Yet, I did litigate, and a lot, in the Appellate Division 3rd Department, both as an appellate attorney on behalf of clients and as a party, and I personally know the abysmal record of Judge Elizabeth Garry - on both points of judicial qualifications, competence and integrity.

Judge Garry, judging by her decisions both in the courts below and in the courts above, and based on personal experience of people who knew her as a lawyer, is a judge who unashamedly assigns herself to cases involving interests of her former law partners, or in cases where a party litigant took a benefit from her when she was an attorney (like a client left from attorney Garry to that other attorney) and, respectively, rules in favor of her law partner and against the attorney who hurt her by taking her client away.

I already posted on this blog Judge Garry's ex parte decision pertaining to my own disciplinary proceeding where Judge Garry 

1) unlawfully reviewed the application of the Attorney Disciplinary Committee where her own former law partner Samantha Holbrook was a member - and then elevated Samantha Holbrook to be the Committee's "Chairperson", while documents pertaining to appointment of Samantha Holbrook as a member or of the Committee or the Committee's "Chairperson" were denied to me when I made a FOIL request for them;  

Samantha Holbrook, when reviewing the disciplinary case against me and against my husband, was at the same time litigating a slip-and-fall case pertaining to our property, with my husband as a party defendant.  

That did not put off either Samantha Holbrook from the case, or Judge Garry from presiding over my disciplinary proceedings (before the ex parte transfer to the 4th Department) or unlawfully adding my husband into those proceedings to help stall discovery in a federal civil rights lawsuit - because by adding my husband to the motion for an order of transfer (without notice to him or me) Garry's former law partner Samantha Holbrook made it more difficult for my husband to obtain records that the Committee refused to release to him since his unlawful disbarment in 2011, even though by law they became a public record for ANYONE's access as of the date of disbarment, July 7, 2011.

Then, Samantha Holbrook AND Elizabeth Garry continue to block access to the ex parte "application" by Samantha Holbrook's Committee to Elizabeth Garry's court for an ex parte order of transfer to this day, to both me and to my husband, even though our names are on that order as parties to litigation.

That misconduct only garnered for Samantha Holbrook an appointment from Chief Judge Jonathan Lippman to the "Commission for Statewide Attorney Discipline" and a place on several committees within the "Commission" to ensure "uniformity, efficiency and fairness" of attorney discipline in New York.  Right!

2) The disbarment of my husband was because of the Mokay case (see blog posts about the Mokay saga in this blog).

Judge Garry was the second judge assigned to the case and the first judge to rule on that case at the trial level, while very close in time before her assignment to the case, Judge Garry was still an attorney, and lost a beneficial client to my husband - which did not prevent Judge Garry to get assigned to my husband's case and to consistently rule against him, without paying any attention to the applicable law or record of the case.

All of the above actions of Judge Garry qualify her more for a disciplinary action than for the highest bench on the New York State Court of Appeals, but I am holding my breath as to the appointment, because, so far, two judges who committed misconduct in our cases, made it to the Court of Appeals, Leslie Stein and Eugene Fahey, so why not add a third one to that happy family...  

After all, Governor Cuomo was sued by both of us and, in an apparent retaliation, as well as a likely bribe, appointed Leslie Stein to the Court of Appeals at the time she was in the process of making a decision for Governor's Cuomo's subordinate, the Commissioner of Environmental Conservation - and, of course, ruled in favor of the hand that fed her.

So, out of the 3 gay judges whom Governor Cuomo may choose to elevate to the Court of Appeals, at least one has an abysmal record, which, I understand, does not matter - because she is one of the two "first openly gay judges" appointed to the appellate bench?

Let's stop looking at how and with whom a judicial candidate has sex, because it does not matter to how that same judicial candidate, after he or she becomes a judge, makes decisions.

Appointing based on "social progress" and "first XYZ-ness" diverts public attention from the actual qualifications of the judicial candidates which should be ONLY:

1/ knowledge of the law;

2/ integrity, impartiality and fairness.

Let's see who is appointed to the two seats that are being freed this year on the NYS Court of Appeals, by Judge Susan Read because of her early retirement and by Chief Judge Lippman who turned 70 this year, because of his mandatory retirement (that he was unable to change through an attempt to change New York State Constitution).

Such appointments will make for an interesting factor analysis as to what, in reality, not in declaration, matters on the bench - knowledge of the law and impartiality or party affiliation and factors "marketing" such an appointment to certain politically powerful segments of population.

Proposals for the change of the New York State Constitution

As I mentioned before on this blog, I am going to publish my proposals for the upcoming 2017 Constitutional Convention and subsequent referendum as to how to change the New York State Constitution.

Here are my first proposals:

1.  To mandate public legal education in high school.  That will at least alleviate the need for attorneys in court representation and will bridge the gap between the "presumption of knowledge of the law" by the public and arcane and complicated legal rules that require an expensive interpreter (a licensed attorney) to explain to that same public.

2. To require that rules of law must be written in clear and simple language and rely on concepts taught in public schools, so that the presumption of notice and knowledge of those laws to be valid.  What we have now are laws that even lawyers and judges cannot agree upon, split hairs in interpreting them, and punish each other for interpreting them incorrectly.

3.  To allow any person to represent any other person in court.  Access to courts is already guaranteed by the 1st Amendment (petitions clause) of the Federal Constitution, it must be secured by people's right to retain anybody they trust, not only expensive licensed attorneys practically imposed upon the public by the government, to represent their interests in court.  

Independence of such court representatives from government regulation is key.  

Quality of services of such representatives will be quickly regulated by the market - lawsuits for breach of contracts, malpractice, breach of fiduciary duty or fraud.  Such causes of action are already on the books.  

At this time, the majority of New Yorkers cannot afford services of licensed attorneys, and those who can, do not receive independent (and thus efficient) representation by such attorneys, because livelihood of such attorneys depends on the very government whose conduct attorneys may have the duty to their clients in challenging.

4.  To allow and make it a duty (like a jury duty) of EVERY person to serve as a judge on a rotational basis.  

This will eliminate dynasties of "blue blood attorneys", eliminate the virtual necessity of attorneys to "build relationships" with judges,  prevent judges from building relations with the local legal elite and assign themselves to cases of their enemies with purposes of retaliation and thus will dramatically reduce corruption in court proceedings.  

5. To make judicial duty compensable at the lowest level, like jury duty, and make the citizen-judge "serve", like jurors do now, on a case-by-case basis only.  This will reduce the burden on the economy by judicial salaries, benefits and retirement packages.

6.  To eliminate all types of immunities for governmental officials acting in excess of their authority and in violation of written statutory law and state and federal Constitutions.

7.  To allow legal representation at public expense of public officials sued for excess of power in office, but to require compensation of value of such services if the public official in question is found by a court to have acted in excess of his duties in office.

8.  To prohibit payments of settlements in lawsuits for misconduct of public officials out of public funds.

9.  To introduce "citizen grand juries" callable by a petition of citizens and self-controlled, with authority to engage independent experts of the law for consultation purposes only.


I will continue to publish my proposals to change the New York State Constitution - both new and updated proposals from the above list if I decide to amend them.

Feedback from readers is welcome, as always.

A FOIL request was filed for records of the New York State Statewide Commission for Attorney Discipline

Today I filed (by e-mail) a FOIL request with the New York State Commission for Attorney Discipline asking it the following information:

1/ copies of all applications to testify at the three public hearings held on July 28, 2015, August 4, 2015 and August 11, 2015 by the New York State Statewide Commission for Attorney Discipline;

2/ copies of all audio and video files of hearings;

3/ copies of all rules issued by the Commission as to how hearings are to be conducted and/or recorded, with records indicating who issued those rules, with signatures of issuers, and with records showing where, when and how such rules were displayed during the hearings;

4/ official telephone numbers and e-mail addresses of all members of the Commission;

5/  copies of telephone records and e-mails of the Commission from their assigned telephones from the time the phones were issued up to the date the response to this FOIL request;

6/ minutes of all three public hearings before the Commission;

7/ all rules and policies created/issued by the Commission.

I know that many people submitted their proposed testimony to the Commission, but not many people were heard.

Since people who submitted proposed testimony for a public hearing, obviously waived their privacy, their submissions became public records subject to FOIL requests, whether they were invited to testify or not, because the Commission claims it will review all of the submissions and will make its recommendations to the New York State Court system based on all of the submissions, whether the witnesses were invited to testify orally or not.

Stay tuned as to the Commission's response.  

Who are the federal judges who used their public computers to access their Ashley Madison accounts?

As was recently reported by the blog "Above the Law", hackers into the Ashley Madison website published information about names and e-mail addresses of account holders in Ashley Madison and - guess what - some of them were federal judges who accessed the accounts from their court computers.

Now, this particular information cannot possibly be private as information contained on public computers and not in regards to the specific job of judges, is not private.

I do not care with whom federal judges cheat on their wives - men, women or animals.

But I do care if they do that on the job, instead of addressing their caseloads, and especially because, as a civil rights attorney, I know that civil rights cases are tossed as a matter of policy, to clear the allegedly busy dockets.

I wonder if the "busy dockets" are cleared by judges of the pesky cases involving constitutional violations just to free judges' time to play in Ashley Madison or pursue other personal entertainment in public time, on public dime and on public computers.

And for that reason - names of judges who used federal computers to access their Ashley Madison account, if it is already hidden after hackers made it public, should be made permanently public - because it IS a public record on a matter of serious public concern.

And - impeachment of those judges is in order, because judges in federal court may serve only "during behavior" and trying to use a public computer in order to cheat on their wives during their public time and on public dime is definitely not good behavior.

So - who are the "winners"?

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".

Here is the decision in the district federal court which was affirmed, as to the matter of Rooker-Feldman application to orders out of New York State Family Court by the U.S. Court of Appeals for the Second Circuit.

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".

Wow.

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.

Unconstitutional "imputation" of income against indigent parents as a way to reinvent debtors prisons

Child support proceedings in New York are governed by statute, Family Court Act Article 4.

Support magistrates or Family Court judges, or Supreme Court judges deciding custody issues within divorce proceedings, have no authority to deviate from that statute.

By Family Court Act Article 4, a parent who earns an income below the so-called "self-support reserve", which is 135% of the federal poverty level for that year, can only be charged $25.00 a month in child support.

Federal poverty guideline for the year 2015 can be found here.

New York cannot charge parents in support proceedings more than $25.00 if the court has proof that parent's income does not exceed the federal poverty level multiplied by 1.35 (135%).

What New York support courts can deem as "income" for purposes of child support proceedings is defined by  Family Court Act Section 413 subsection 5:

The "imputation" of income is within the "discretion" of the court and is not accompanied by any guidelines as to what is the procedure of "imputation", what factors should be considered.

The "imputation" section of the Family Court Act is unconstitutional because of its "including, but not limited to" section.

When a court is given the power to make orders that invoke the state's police power and may put a person in jail, that power should be strictly defined, with a notice to the public as to what the court MAY and what it MAY NOT do.  

The "including, but not limited" part of the statute, coupled with the "discretion" statute provides parents no notice whatsoever as to what can be "imputed" as income upon them, which, to me, is a constitutional violation.

Moreover, imputing income based on past earnings and projected POSSIBLE future earnings of an unemployed parent is nothing other than conjecture, and, in my legal opinion, does not pass constitutional muster.

No matter what was the parent's income level in the past, the parent may not be able to earn the same income at present, and it is the present income of the parent that the court should be considering, not the court's own speculations.

Since courts usually do such imputations and conjectures without any evidence as to the state of the economy or the parent's current employment opportunities based on parent's background, educational and skill level, age, command of the English level, disability or other factors, the statute is, in my opinion, unconstitutionally vague and allows arbitrary enforcement, making the statute vulnerable to a constitutional challenge through a civil rights lawsuit.

Chances of overturning imputations of income on appeal are, frankly, not good because imputations are, by statute, within the "discretion" of the court, are reviewable on appeal only for "abuse of discretion", and appellate courts in New York are well known for rubber-stamping any discretionary act of the lower courts and refusing to interfere.

That is not to say that appeals should not be filed and are futile, they are just hard to win, but abuse of discretion can nevertheless be won based on factual circumstances of the case.

I know of two cases personally where income was imputed.  In both cases income was imputed of over $20,000.00 a year (above self-support reserve), without any evidence or analysis about the economy in the area where the parent lives or employment opportunities for that particular parent, with his or her background, command of the English language, age and educational and skill level.

I provide here a link to several other "imputation" cases described, where NYS Appellate Division 2nd Department found a "discretion" of the trial court to impute income in child support proceedings.

One issue of abuse of discretion that can be proven on PROCEDURAL grounds and as a matter of COLLATERAL ESTOPPEL is imputation of income upon parents who are adjudicated as indigent, as evidenced by assigning counsel to them in other court proceedings.

When counsel is assigned by order of the court, based on evidence of indigence provided by parent to the court, such an order may be used to show abuse of discretion by the court in imputation of income despite such assignment order AS A MATTER OF LAW.

A judge may not deem the same person indigent for one purpose and not indigent for another.  That is the ultimate abuse of discretion - and show of bias, in my legal opinion.

In a recent case, Judge Phillip Rumsey of Cortland County Supreme Court, assigned to a Chenango County Supreme Court case, assigned counsel to custody proceedings of the parent and at the same time imputed income of $20,000 to the parent.  Those were two mutually exclusive orders and, I believe, in this case imputation can be addressed as abuse of discretion and a show of bias on appeal.

Moreover, imputation of income to indigent parents in upstate New York, with its slow (if not dead) economy and scarcity of jobs is one other example of abuse of discretion by trial courts.

Rural New York, and I am speaking from experience, is currently a dead zone, and has been like that since around 2008, when many towns in upstate New York look like ghost towns, and jobs are available only in the local government (which are controlled by local family clans).

In 2008 an Orange County Family Court judge imputed income to an indigent parent that I know of based on the fact that she had a barber license and a "barber shop".  

A barber in the rural town where the parent lived could not come close to earning $20,000.  That did not concern the Orange County Family Court judge one bit.  She put the parent in jail for "contempt of court" - which requires two elements to be satisfied by clear and convincing evidence:

(1) that the order of child support "disobeyed" by the parent is lawful - it was not because it was contrary to statutory requirements of the Family Court Act that does not allow "imputation" of income upon indigent parents and does not allow to charge an indigent parent more than $25 per month in child support;

(2) that the judge, sitting in a civil contempt proceeding, must first ascertain whether the parent ACTUALLY has the money in arrears that is allegedly owed.  If the parent does not ACTUALLY (not imputedly) have such money, the parent may not be put in jail, becuase jurisdictionally Family Court does not have authority over criminal contempt proceedings, only over civil contempt proceedings where the "contemnor" (parent in contempt of court) must "hold the keys to his/her jail cell", meaning the parent in question must have the ACTUAL ABILITY, his/her own, not his/her relatives and friends', to pay the money owed to get out of jail.

None of that means anything to judges of New York State Family Court.

I will list judges who held an indigent parent in contempt of court and ordered her to pay despite her statements that she has no income and no ability to do so, and despite incontrovertible evidence, a court order of foreclosure, showing that the "barber shop" upon which the imputation was based, is no longer in existence, the house foreclosed on and the barber equipment taken during eviction proceedings.  

That did not perturb the courts one bit and did not sway them in determination that imputation of support based on judge's conjecture that the indigent parent MUST earn $20,000 a year out of a now non-existent barber shop, must continue.

Here is the list of "winners":

• Orange County Family Court
• Appellate Division 2nd Judicial Department that affirmed the Orange County Family Court's ruling
• Judge Richard Brown, support magistrate for Delaware County Family Court
• Carl F. Becker, no longer a judge, retired, Delaware County Family Court judge at the time of the ruling
• Judge Susan Kushner of Albany County Family Court
• Judge Richard Rivera, at that time Albany County Family Court support magistrate, now an Albany County Family Court judge
• Dennis Duggan, no longer a judge, at the time of ruling Albany County Family Court judge

Since the time of unlawful "imputation" of income, contrary to statutory jurisdictional constraints, by the Orange County (by the way, court orders in excess of their jurisdiction are VOID), 8 courts, including state courts in three states and two federal courts relied upon that unlawful decision in ruling against the parent.

The parent was put in jail twice and threatened to put in jail two more times in the past based on the unlawful order, by the Orange County Family Court in 2009 and by the Albany County Family Court, Judge Susan Kushner, in 2014.  

Judge Kushner had in front of her evidence that the parent has no actual ability to pay, that the barber shop was no longer in existence, as the parent's house where the barber shop was was foreclosed on, and the barber shop itself, equipment and all, was taken by the foreclosing party during eviction proceedings.

Judge Kushner still put the parent in jail without an evidentiary hearing.   

By the way, at the time of proceedings, Judge Kushner was a Facebook friend of the law guardian in the case Lisa Gordon, whose actions indicated she worked for the opponent of the incarcerated parent and not for the child.

None of the judges who made the unlawful rulings against the parent, including incarceration, were disciplined.

The parent was brought in contempt of court for not paying the unlawfully "imputed" child support that the parent had no actual ability to pay after she made a motion to recuse a judge and sued a judge.

In a case that was recently reported to me, income for purposes of child support of over $20,000 (looks like judges have guidelines for imputation of income, so that it is a little bit above self-support reserve) was imputed upon a parent to whom the same court assigned counsel for purposes of child custody proceedings - meaning that the parent was a PROVEN indigent.

The judge who unlawfully imputed such income upon a 60-year-old unemployed parent living in rural upstate New York, a parent with no college degree and for whom English was not a native language, was Phillip Rumsey, Corland County Supreme Court judge sitting in Chenango County Supreme Court divorce proceedings.

From the above, a rule or policy or both emerges.

A message to indigent parents sued in New York State Family Court for child support:

Sue the judge - and income will be unlawfully imputed to you, you will be made to pay on the unlawful order, no courts will pay attention the order is unlawful, no courts will pay attention that you cannot be put in jail for being UNABLE to pay in a CIVIL contempt proceeding, and you may be locked up.

Is it legal?

Of course, not.

Do courts care?

The story of the two parents shows - nope.

Yet, my firm belief is that judges who KNOWINGLY impute income upon indigents from which the indigents must pay times more than what the law allows to make them pay - and then who hold them in contempt, fine them and put them in jail for violating such illegal orders - should be taken off the bench, stripped off their law licenses and prosecuted criminally.

The parent in the first case described on this blog was made to pay $69.00 a week.  that's more than $280.00 a month.

Since the parent earns less than self-support reserve, by the same Family Court Act the parent could not be made to pay more than $25.00 a month, but there are no procedural safeguards in the Family Court Act preventing courts from avoiding the $25.00 a month requirement for the poor parents and instead "imputing" income upon such parents that makes them appear not poor, no matter what the actual evidence of their income is, and no matter what their chances of gainful employment are.

What can be done about it?

Be vigilant.

File and perfect appeals, make sure the appeal goes through, do not stop mid-way after the appeal is filed.

Point out that imputation of income was a clear abuse of discretion in view of evidence of indigence - such as assignment of counsel based on submissions of that same parent to that same court or to another court.

If contempt of court proceedings are brought against you in NYS Family Court and if the court warns you on the top of the petition that the petition seeks to punish you, point out that the law does not give New York State Family Court judges, and especially support magistrate, to hold CRIMINAL contempt proceedings, and punishment is the function of CRIMINAL, not CIVIL contempt proceedings.

Point out that in CIVIL contempt proceedings, proof that parent is unable to pay the court-ordered support amount is an absolute BAR to the court's ability to put the parent in jail to MAKE the parent pay what he or she does not have.

Point out that you have a right to an EVIDENTIARY hearing before any decision regarding civil contempt is made by the judge.

Watch out for the word "punish" in the court order of contempt.  The word "punish" indicates criminal proceeding and entitles you to move to vacate for lack of jurisdiction, because, once again, Family Courts in New York do not have criminal jurisdiction.

Watch out for a specific term of incarceration, which constitutes a CRIMINAL SENTENCE, for which Family Courts, once again, have no authority - in civil contempt proceedings a parent can "only" be put in jail for the period not to exceed 6 months OR until the contempt is "purged" (money is paid), and only if that money is available to the PARENT, not to his friends or extended family.

Appeal contempt orders.

Appeal incarceration orders.

Be vigilant.

Prevent unlawful actions of Family Courts, fight them, make them public.  Otherwise, courts do not want to be controlled by law or constitution.

Judge Frank B. Revoir, Jr. of Chenango County Family Court, presiding over the Delaware County Family Court proceeding, said that much to me - that my constitutional arguments in Family Court is the equivalent of "lying to the court".  It is on record.  Judge Revoir was not disciplined for that by the NYS Commission for judicial conduct.

If nothing else helps, sue in federal court for civil rights violations.

Once again.

Be vigilant.

Fight for your rights.

Point out to the trial court the limits of its jurisdiction.

Point out to the trial court that you have no actual income, no actual prospects of getting a job that will pay you above self-support reserve, provide evidence of that - letters of rejection, printed out local vacancies, local news articles about jobs available.

Appeal.

Sue in federal court if you are held in contempt despite your actual inability to pay proven to the court, or if you are held in contempt to punish you, for which Family Court in New York has no authority.

Complain to the NYS Commission for Judicial Conduct - just make the record there, better by e-mail, so that they cannot deny you sent the complaint.

Make your case public, hit the social media with your story, expose incompetent and biased judges committing misconduct against you, in violation of the law.

Do not allow unlawful actions of judges creating unconstitutional debtors prisons in New York, and especially doing that in retaliation for parents suing judges, to continue.