Petition for Writ of Certiorari — Leon R. Koziol, Petitioner v. Attorney Grievance Committee for the Third Judicial Department

Supreme Court briefJan 9, 2018

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Text

No.

In the

'upreme Court of the entiteb

'tate

In the Matter of Leon R. Koziol

a Suspended Attorney

Petitioner

Attorney Grievance Committee

of the

Third Judicial Department

Respondent,

PETITION FOR A WRIT OF CERTIORARI

to the New York State Court of Appeals

LEON R. KOZIOL, Petitioner

Office of Leon R. Koziol, J.D.

1336 Graffenburg Road

New Hartford, New York 13413

(315) 796-4000

QUESTIONS PRESENTED

Does the First Amendment protect a judicial

whistleblower from state retributions upon his law

licenses and parent-child relationships?

Can Fourteenth Amendment rights of due process

and equal protection be set aside in attorney

regulatory proceedings to achieve retaliation for

public speech critical of divorce and family courts?

Is petitioner entitled to have all attorney disciplinary

and license reinstatement proceedings opened to the

public as a matter of practice or request at any time?

-I-

TABLE OF CONTENTS

Table of Authorities...........................................................iv

OpinionsBelow.....................................................................1

Jurisdiction............................................................................1

Constitution and Statutes....................................................2

Statement of the Case...........................................................3

Reasons for Granting this Writ...........................................13

Point One: The First Amendment

has co-equal application to our

third branch of government.................................................15

Point Two: Fourteenth Amendment

Rights cannot be set aside to suppress

protected activity of a civil rights attorney....................23

Point Three: Government transparency

dictates that the proceedings below should

have been opened to the public

Conclusion...............................................................31

Appendix

Order of New York State Court of Appeals

sua sponte denying appeal dated October 12, 2017........1-a

Petitioner's Preliminary Statement for

Appeal as of Right dated May 9, 2017

before New York Court of Appeals ..............................2-a

Petitioner's Notice of Appeal

dated April 30, 2017 submitted

to New York Court of Appeals

taken from order of Third

Department Appeals Court .......................................7-a

Order of New York Appellate

Division, Third Department

entered April 13, 2017 denying

motion for law license reinstatement ........................8-a

Petitioner's motion for law license

reinstatement dated February 27, 2017

filed with New York Appellate Division,

Third Department ..................................................10-a

Petitioner's affidavit dated

February 27, 2017 in support of

motion for law license reinstatement.........................13-a

III

TABLE OF AUTHORITIES

Cases

Addington v Texas, 441 Us 418 (1979)................................25

Bantam Books Inc vSullivan, 372 US 58 (1963)................15

In re Batista, 846 So. 2d 479 (Fla. 2003).............................24

Beechwood vLeeds, 436 F.3d 147(2dCir.2006) ............. 15, 18

Brown v. Board of Education, 347 US 483 (1954)...............12

Brown v Sjacuse, 623 F Supp2d 272 (NDNY2009). ....... 30

Caperton vATMassey Coal Go, 556 US 868 (2009)...........23

City of Houston vHill, 482 US 451 (1987)..........................12

City of Lakewood vPlain Dealer, 486 US 750 (1988).........15

County of Sacramento vLewis, 523 US 833 (1998)............17

Cox Broadcasting v Cohn, 420 US 469 (1975)...................1

Currie vKo walewski, 842 F. Supp. 57 (NDNY 1994).....6, 29

Currie vKo walewski, 810 F. Supp. 31 (NDNY 1993)........29

Daniels v Williams. 474 US 327 (1986)...............................25

Desert Place v Costa, 539 US 90(2003)..............................27

Erdmann vStevens, 458 F2d 1205 (2nd Cir 1972)..............26

Franco v Kell y, 855 F2d 584 (CA2 1988)...........................20

-Iv -

Fried] vNew York, 210 F3d 79 (CA2 2000)

. 19

Garcetti v Ceballos. 547 Us 410 (2006)..........................18

Garrison vLouisiana, 379 US 64 (1964)..............................26

Gooden v Wilson, 405 US 518 (1972)...................................21

Gibson vBerryhill, 411 US 564 (1973)................................23

Joyner vDumpson 712 F2d 770 (CA 2, 1977).....................25

Konigsberg v California, 353 US 252 (1957)....................21

Matter of Leon Koziol, 70 AD3d 1516 (3rd Dept 2010).......3

Koziol v Hanna,107 F. Supp. 2d 170 (2000) ........ 6,19, 22,26

Koziol v Walsh-Hood, 92 AD3d 1161(3rd Dept 2012)..........3

In re Leon Koziol 107 AD3d 1137 (3rd Dept 2013)...............4

Lassitur vDept of Social Services, 452 US 18 (1981).........25

Lopez vMetropolitan Life, 930 F2d 157 (2nd Cir 1991)......27

Maron vSilver, 871 NYS2d 404 (AD 3, 2008).....................20

Matter of Capoccia, 453 NE2d 497 (NY 1983).....................16

Matter of Don di, 63 NY2d 331 (1984)..................................24

McDonnell Doiwlas v Green, 411 US 248 (1973)................27

Middlesex v Garden State Bar, 457 US 423 (1982)............13

Morin v Tormey, 626 F.3d 40 (2nd Cir (2010)......................16

Morris vLandau, 196 F3d 102 (2nd Cir 1998)

. 27

In re Murchison, 349 US 133 (1955)....................................23

New York Times vSullivan, 376 US 254 (1964).................15

Oneida Nat. v Oneida Co., 132 F. Supp 2d 71 (2000).....7, 26

Parent vNew York. 786 F. Supp. 2d 516 (NDNY 2011)......3

Patterson v Utica, 370 F.3d 322 (2nd Cir. 2004)............6, 26

In re Phelps, 953 So. 2d 45 (La 2007)..................................24

Phillips v Bo wen, 278 F. 3d 103(2nd Cir. 2002)...................27

Pickering vBdofEduc, 391 US 563 (1968).........................18

Rippo vBaker, 580 US

(2017).................................31

Rochin v California, 342 US 165 (1953)..............................16

Rogers vMissouriPacificR. Co., 352 US 500 (1957).........27

ReRuffalo, 390 US 544 (1968)............................................. 13

Sacramento vLewis, 523 US 833 (1998)........................25

Santosky V Kramer, 455 US 745 (1982)...............................24

Sanders vIVYCH,R. Admin, 361 F3d 749 (2nd Cir 2001)...26

In re Snyder, 472 US 634 (1985)...................................14

Snyder vPhelps, 562 US

(2011)......................................15

Spevak vKlein, 385 US 511 (1967)......................................31

-VI -

In re Singer, 290 AD2d 197 (1st Sept 2002)

.22

S. Ct. of Virginia vConsumers, 446 US 719 (1980)......15,20

TexasD.C.A. vBurdine, 450 US 248 (1981)....................... 27

In re Thaihein, 853 F2d 383 (CA5 1988).............................24

Turner vRogers, 564 US

(2011)..................................23

United States v Cossey, 632 F.3d 82 (2nd Cir. 2010).........29

United States vStevens, 559 US 468 (2010).......................21

United States v Wunsch, 84 F3d 1110 (CA9 1999)............22

Village of Willowbrook v Olech, 120 S.Ct. 1073................24

Washington v Glucksberg, 521 US 702 (1997).................25

Wilner v Character & Fitness, 373 US 96 (1970)...............24

Constitution, Statutes and Rules

U.S. Amend l ........................................................................ 6

U.S. Amend 14......................................................................15

28 USC 1257............................................................................1

New York Judiciary Law 90...................................................2

New York CPLR 5602...................................................1

22 NYCRR 1200.3...................................................................3

22 NYCRR 1022 .............................................................3, 16

-VII

OPINIONS BELOW

The final order of the New York Court of Appeals

dismissing petitioner's appeal as of right was entered on

October 12, 2017. It is not a reported opinion and is

reproduced in the Appendix at 1-a

The memorandum decision and order of the court of first

instance in an attorney reinstatement case was entered by

the New York Appellate Division, Third Department on

April 13, 2017 and published at Matter of Koziol, 2017 NY

Slip Op 02874. It is reproduced in the Appendix at 8-a.

JURISDICTION

The order of the New York Court of Appeals was entered on

October 12, 2017. Jurisdiction is invoked pursuant to 28

USC 1257 regarding a final decision of a state's highest

court. Because the originating decision of the Appellate

Division court was deemed nonfinal in that order, a motion

for leave to appeal under New York CPLR 5602 was made

unavailable for exhaustion purposes.

A writ of certiorari is proper under a futility exception to

the finality requirement and, alternatively, a final ruling on

the narrow questions of First and Fourteenth Amendment

violations, Cox Broadcasting v Cohn, 420 US 469 (1975). All

relief sought below was based on the federal constitution,

including a request for ongoing disciplinary proceedings to

be made public. The state's high court refused to rule on it.

Continued retribution for petitioner's exercise of First

Amendment rights by the respondent grievance committee

remains at the core of petitioner's civil rights claims below.

Reinstatement to the practice of law is being protracted to

evade timely review. It has become a bad faith process with

a six month "extant" license suspension completed in 2013

converted into a life term disbarment without due process.

-1-

CONSTITUTION AND STATUTES

The First Amendment provides that "Congress shall make

no law respecting an establishment of religion, or

prohibiting the free exercise thereof, or abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances."

The Fourteenth Amendment provides in relevant part that

"No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States, nor shall any State deprive any person of

life, liberty or property without due process of law; nor deny

to any person the equal protection of the laws."

Section 90 of the New York Judiciary Law provides in

relevant part: "Admission to and removal from practice by

appellate division; character committees (2) The supreme

court shall have power and control over attorneys and

counselors-at-law and all persons practicing or assuming to

practice law, and the appellate division of the supreme

court in each department is authorized to censure, suspend

from practice or remove from office any attorney and

counselor-at-law admitted to practice who is guilty of

professional misconduct, malpractice, fraud, deceit, crime

or misdemeanor, or any conduct prejudicial to the

administration of justice..."

Section 90(10) of the New York Judiciary Law provides in

relevant part: "Any statute or rule to the contrary

notwithstanding, all papers, records and documents... upon

any complaint, inquiry, investigation or proceeding relating

to the conduct or discipline of an attorney or attorneys,

shall be sealed and deemed private and confidential.

However, upon good cause being shown, the justices of the

appellate division having jurisdiction are empowered, in

their discretion, by written order, to permit to be divulged

all or any part of such papers, records and documents."

Section 1-102 of the New York Code of Professional

Responsibility, 22 NYCRR 1200.3, provides in pertinent

part: Misconduct (defined): (A) A lawyer or law firm shall

not... (3) Engage in conduct that is prejudicial to the

administration of justice; (4) Engage in conduct involving

dishonesty, fraud, deceit or misrepresentation; (7)

Engage in any other conduct that adversely reflects on the

lawyer's fitness as a lawyer.

...

STATEMENT OF THE CASE

This petition features a judicial whistleblower, model

parent and civil rights attorney persecuted for exposing

judicial corruption and seeking overdue reforms to New

York's child custody and support laws. The first of forty

assigned trial jurists to his originally uncontested divorce

refused to hear constitutional challenges to these laws in

violation of duties under New York Executive Law, Section

71, Koziol v Hawse-Koziol, 60 AID3d 155 (4th Dept 2009).

Petitioner therefore exercised the rights of self-governance

repeatedly guaranteed to him by this Court. He did so by

exposing a dysfunctional family court and lobbying for

reforms. This then morphed into systemic retributions from

various members of the bench and bar leading to a human

rights holocaust. The retributions ultimately resulted in the

seizures of petitioner's children, law licenses and liberties.

This submission must be read in conjunction with six prior

petitions for writ denied by this Court, see Matter of Koziol,

70 AD3d 1516 (3rd Dept. 2010), Iv dismissed 16 NY3d 853

(2011), cert denied

132 S. Ct. 455 (2011)("Koziol

I") Parent (Koziol) v New York, 786 F. Supp. 2d 516

(NDNY 2011); 2012 WL 2213658 (2nd Cir. 2013), cert denied

(November, 2012)("Koziol II") Koziol v Hood, 92 AID3d 1161

-3-

(2012)(cert denied 2013))("Koziol III"); In re Koziol, 107

AD3d 1137 (3rd Dept 2013), appeal denied 21 NY3d 1056

(2014), cert denied

134 S. Ct. 1038 (2014)(Koziol

IV"); Koziol v United States District Court, No. 15-1519

(2016)(mandamus cert denied)("Koziol V"); Koziol v King,

No. 15-512 (2017)(cert denied)("Koziol VI").

In these and other cases, petitioner sought relief for

unlawful retaliation by the respondent lawyer grievance

committee, child support enforcement authorities, and state

agents targeting his reform and whistleblower activities.

He raised his First and Fourteenth Amendment rights in

every case, but key precedent of this Court cited repeatedly

in support of his federal claims was never mentioned in any

decision, federal or state, to the present day. The orders and

decisions here reflect that pattern, 1-a, 8-a to 9-a.

A. Unwarranted Federal Abstention

In the courts below, petitioner asserted that select adverse

treatment has made a mockery of federal court abstention

policies, 16-a to 18-a. It has also foreclosed proper decisions

on the merits of petitioner's constitutional claims for over

ten years after a consensual childrearing arrangement was

converted into a war zone by unethical lawyers and federal

support mandates. Denials of certiorari over that period

have only elevated retributions on a pretense of propriety.

This pretense has severely chilled the efforts of petitioner

and fathers similarly situated to secure fair treatment in

our nation's domestic relations courts. Judicial notice of this

can be taken by the dearth of news items and organizing

activity while the Census Bureau continues to report that

nearly 85% of all child support obligors are men. Petitioner

sponsored parent conventions, lobbied Congress for father

equality and traveled across the country seeking reforms

that were severely discredited by the retributions here.

The present fact pattern reflects an escalation of that

suppression by pertinent family court judges, licensing

authorities, and more particularly the Third and Fourth

Department (middle level) appeals courts in the Appellate

Division of New York's Supreme Court.' Federal courts

have continued to exercise deference to disciplinary and

investigatory practices of ethics counsel and departmental

committees targeting petitioner's public criticisms of bench

and bar practices in domestic relations litigation.

Younger abstention, Rooker-Feldman doctrine, domestic

relations exception, preclusion rules and judicial or

sovereign immunity comprise the principal devices being

employed to insulate the misconduct of attorneys, judges

and disciplinary agents engaged in the suppression of these

criticisms. Petitioner's protected activities have never risen

to contemptuous behavior, and prior to his reform efforts,

he enjoyed an unblemished reputation as a civil rights

attorney over a period of nearly a quarter century.

B. Omnibus Motion for Relief

With this backdrop, petitioner filed a motion in New York's

Third Department on February 27, 2017 seeking, inter alia,

an order lifting the confidentiality of attorney disciplinary

proceedings, an order restraining bad faith prosecutions by

the respondent committee, a reconciliation of treatment by

conflicting appeals/licensing courts, due process challenges

to a substandard ethics process, and an order vacating two

license suspension orders with immediate reinstatement to

the practice of law after ten years of abuse. It was based, in

part, on new (exonerating) facts regarding petitioner as a

crime victim in his former law office, Appendix 10-a to 12-a.

I Unlike states which commit attorney regulation to their high courts, New

York has distributed this authority among four middle level appeals courts.

The First and Second Departments are located in Brooklyn and Manhattan

with the Third and Fourth upstate in Albany and Rochester, respectively. A

motion for transfer to either downstate department was previously denied.

-5-

That crime victim status could not be confirmed until the

2016 conviction and incarceration of a sociopathic exsecretary after petitioner fired her in 2009. She had been

influenced to tamper with office mail and court calendars

while pilfering well over $100,000 from office accounts.

Petitioner was being so scrutinized on "dishonesty" and

other nebulous grounds that he could not risk timely

disclosures until the criminal process had taken its course.

Nevertheless, when exonerating information was capable of

disclosure, it was ignored in both decisions below, 20-a to

21-a. Meanwhile, petitioner was referred to civil recourse

by local police, but with his assistance, this sociopath was

arrested in another county and convicted locally only for

crimes upon later lawyers. Here, she orchestrated ethics

issues against petitioner as a diversionary tactic, 38-a.

Circumstantial proof shows that this ex-secretary acted

under some form of local prosecutorial immunity intended

to "pile on" in this witch hunt, 20-a. She was either a major

or exclusive cause for all three license suspensions, to wit: a

willful support violation on February 5, 2010 (Koziol II"), a

disciplinary suspension on September 23, 2010 ("Koziol I")

and a six month license suspension on June 6, 2013 ("Koziol

IV"). However, because he was deprived of discovery in all

litigation to date, petitioner has been unable to properly

defend against the serial ethics charges which resulted.

Petitioner remains a long established public advocate for

minorities, whistleblowers and government abuse victims,

Patterson v City of Utica, 370 F3d 322 (2nd Cir. 2004)(civil

rights case argued before a Justice of this Court); Koziol v

Hanna, 107 F. Supp. 2d 170 (NDNY 2000)(sacrificial stance

as corporation counsel taken against gag order upon city

employees); Oneida Nation v Oneida County, 132 F. Supp.

2d 71 (NDNY 2000)(judgment invalidating billion dollar

casino operation for landowners); Currie v Kowalewski, 842

F. Supp. 31 (NDNY 1994)(workplace sexual harassment).

C. Substantive Due Process

Taken as a whole, petitioner continues to assert overriding

claims of substantive due process violations based on a

"totality" of circumstances originating with an uncontested

divorce in 2006, 18-a. A cooperative parenting environment

was upended by an unethical divorce lawyer seated on a

Fourth Department ethics committee. Since then, this

divorce has exploded into multi-tiered proceedings before 40

trial level jurists, over 100 appealable orders and serial

human rights violations, a judicial record by most accounts.

After three years of escalating conflict, the original divorce

judge ruled after trial on October 8, 2008 that the parent

agreements of 2004 and 2005 were just and proper under

the federal support standards act. But by then, lucrative,

recurring and endless proceedings before multiple tribunals

had been triggered to discredit petitioner's reform message,

a shared parenting law to replace custody classifications. 2

When the first assigned divorce judge refused to entertain

constitutional claims in 2007, an appeal was brought before

a Fourth Department judge in Syracuse (John Centra).

Opposing counsel was shown to be exemplary of the corrupt

process which included a protection order issued against his

law office for exploiting sensitive litigant information for

his personal benefit. It was not known at the time that the

same court, in its regulatory capacity, had appointed this

same attorney to its district ethics (grievance) committee.

New York is renowned as having the most complex trial court structure in

the United States. Its own state bar association has issued reports to reform

this structure, noting that eleven different trial courts here compare with one

in California, see NYSBA 2017 Report and Recommendations Concerning

Whether New Yorkers Should Approve Ballot for Constitutional Convention. It

also noted that a divorce litigant in New York could be subjected to three of

these distinct trial courts. In petitioner's case, that number became five.

-7-

On the same day as the appellate arguments of January 9,

2008, a first time ethics prosecution was opened against

petitioner after decades of unblemished practice. It is

believed that Judge Centra who heard the domestic appeal

arguments improperly and discreetly influenced this action.

It was based on stale grievances including six subsequently

dismissed as meritless. Again, all discovery was denied to

show prosecutorial misconduct and unlawful retaliation.

These domestic and disciplinary events formed a major

cause for petitioner's first 2009 federal action in Koziol II

(Parent v New York, supra). A large number of jurists,

lawyers and state agents was now involved in raising

petitioner's children despite no findings of unfit behavior.

On April 28, 2010, the Fourth Department disqualified

itself, sua sponte, while referencing petitioner's earlier

recusal motion "denied without prejudice." It transferred all

legal matters involving petitioner to the Third Department.

Although the willful support violation was lifted by the

Fourth Department in 2012 and domestic appeals resumed,

the Third Department continued to hold reinstatement

hostage with protracted inquiries based on anonymous

complaints and frivolous accusations. For example, the

latest one here involved a law office account created to

insulate client funds from a 2008 unlawful seizure by the

state's robotic support collection unit (later restored), 27-a.

The split Department treatment has never been explained,

but it is believed that petitioner was targeted during

unrecorded discourse between presiding judges as

referenced in their transfer orders. The first time ethics

prosecution influenced by Judge Centra resulted in a one

year license suspension by the Third Department on

September 23, 2010 despite a clear showing of a false

finding of material fact by the court appointed referee and

his refusal to hear evidence relating to added "discrepancy"

charges concocted from petitioner's defense submissions.

A request for Department reconciliation was one of the

branches of petitioner's current motion disregarded by both

the middle level and high courts of New York, 29-a, 1-a, 8-a.

Hence the persecution and reinstatement process continue

in perpetuity already one year beyond the seven year period

in New York for felony disbarments. Petitioner has never

been accused of any crime and his treatment contrasts

sharply with other lawyers in disciplinary cases.

In his motion affidavit, petitioner cited lawyers committing

felonious acts, i.e. his child attorney, William Koslosky, who

falsified sworn statements to appeals/licensing courts that

harmed his clients and their support needs, 40-a to 42-a; a

partnership admitting to misappropriation of six figures in

client funds (John and Lori Petrone), another local attorney

serving a jail sentence for tax evasion on $2 million in

unreported income (Robert Sossen), and ethics lawyers in

the witch hunt against petitioner who were allowed to

resign after an inspector general discovered their falsified

time sheets (Tornceflo, Zayas, Devane). There was no

disruption to their ability to continue practicing law, 26-a.

D. First Amendment Violations

Throughout the omnibus motion and proceedings in federal

and state courts over the years, petitioner has endeavored

to obtain answers to questions of first impression, including

whether a family or disciplinary judge can orchestrate

outcomes to harm a public critic of their proceedings in the

face of First Amendment prohibitions. No mention of them

has been made to date despite their brazen nature.

In that motion, petitioner maintained that his historic

protection of the public from government abuse has now

been reversed to protect the government from public

criticism. In the decisions below, the licensing authorities

asserted that they were acting "to protect the public, deter

similar misconduct and preserve the reputation of the bar"

when they entered back-to-back suspensions of petitioner's

law license, the last one a six month term satisfied in 2013.

A sampling of news articles in the ten year record here tells

a more accurate picture of petitioner's decades of service to

the public prior to the licensing retributions sustained

contemporaneous with these public criticisms. Feature

articles in the New York Times, Syracuse Post Standard

and Utica Observer Dispatch are found among applications

for review of constitutional issues filed before New York's

high court. Petitioner's activity earned him an interview on

the CBS program 60 Minutes in 1999 and participation in a

United Nations Family Rights Conference in 2016.

Civil rights victims continue to seek petitioner's legal

representation even after nearly eight years of combined

license suspensions, a year longer than a felony disbarment

period without so much as a criminal charge or finding of

unfit parenting. There is a profound void in civil rights

lawyer availability in petitioner's Utica-Rome metropolitan

area. Hence the respondent here was challenged for its

hypocrisy in the genuine regulation of attorney misconduct.

With each public criticism, a corresponding adverse event

followed from bench and bar adversaries. And with each

reinstatement effort, petitioner was required to complete a

bar ethics exam which he did well beyond the passing

scores. There have been at least five such petitions or

motions since 2011 including the one here. The pretext for

denials has never been acknowledged despite overwhelming

proof due to the union of bench and bar interests.

In prior client litigation, petitioner was able to rely upon

circumstantial inference, or that "temporal nexus" between

protected activity and adverse government action, to

successfully assert a case of unlawful free speech retaliation

against various public and private entities. However such

practices incurred a disappearing act when members of the

bench and bar were implicated. Since 2013, New York's

disciplinary agents responded with an indefinite (four year

extant) suspension of petitioner's state law license which, in

turn, caused an automatic and effectively permanent

removal from the federal district and circuit court bars

through reciprocity.3

That extant period commenced within weeks of petitioner's

testimony before the New York Moreland Commission on

Public. Corruption on September 17, 2013 at Pace

University. Speakers included federal prosecutor Preet

Bharara who condemned a culture of corruption in New

York's government and later secured the convictions of top

legislative leaders. Another speaker was Loretta Lynch

prior to her appointment as United States Attorney

General by then president Barack Obama.

Petitioner focused his testimony on New York's judiciary

and self-regulated legal profession. Among other things, he

cited fictitious college degrees in family court findings used

to elevate his child support obligations for punitive (willful

violation) incarceration purposes, 19-a, 25-a. The testimony

was publicized on Commission and viral websites and

featured on the one maintained by petitioner since 2010.

That feature and testimony were also cited in respondent's

April 8, 2014 opposition report to a 2013 reinstatement

application, 23-a. No claim of inaccuracy or specification of

The earliest impairments of petitioner's law license occurred twice in the

same year in two different Departments. The first, by the Fourth Department,

was imposed on February 5, 2010 pursuant to New York judiciary Law sec. 90

(1-a) for an alleged "willful child support" violation. It was triggered by a

violation order of October 1, 2009 by State judge Michael Daley, then a party

to petitioner's first civil rights action. As set forth in both federal and state

pleadings, this judge committed himself on a May 26, 2009 opening transcript

to a hearing on recusal issues raised by the attorney-father consistent with

prior recusals of the same judge among client cases. Instead of honoring that

commitment, Daley surreptitiously issued the violation order which was then

insulated from review by the automatic language of the said judiciary Law.

ethics violation was contained in that report. It was sealed

from public inspection under the stated Judiciary Law. At

least one prior opposition report was secreted from

petitioner as well, 23-a. It has not been revealed to this day.

The targeting has now magnified to a level where ethics

lawyers have openly declared in court that they would

oppose petitioner's reinstatement to his law practice as long

as his criticisms and filings continue.4 In this case, the

public criticisms and filings were not arbitrary or sweeping

upon the whole of a profession. To the contrary, they were

narrowly tailored to state domestic relations courts.

Petitioner's targeted public message focused on children

who are exploited for profit and parents structured under

federal law to war against one another for "support" and

"custody" awards. It is a well preserved enclave that is

harming an entire nation. In the record below, petitioner

repeatedly maintained these positions while asserting that

our rights are most impaired when those with whom they

are entrusted lack the fortitude to take overdue action.5

"This statement was made by Third Department ethics counsel,

Steven Zayas, on May 22, 2013 in response to presiding Justice Rose

who questioned why petitioner's reinstatement was being opposed. This

hearing was not recorded and no authority exists under New York law

for transcription. Both Zayas and his chief counsel resigned weeks later

as standard bearers for attorney ethics after coming under

investigation by the state Inspector General for falsifying time sheets,

see NY Law Journal, 7/10/13 and Michael Steinberg, When the Foxes

Watching the Fox House get Caught, www.nylawsuitreform.com.

Thurgood Marshall is widely recognized as the attorney, denied

admission to law school on grounds of race, who made Brown v Board of

Education possible. However a lesser known architect, Earl Warren,

was appointed to the Supreme Court in 1953 when a writ was granted

among the consolidated Brown cases. By the time decision was issued

the following year, Justice Warren had managed to convince eight

associates to join him in a bold unanimous opinion.

REASONS FOR GRANTING WRIT

Petitioner is a civil rights advocate who after 23 years of

unblemished practice was suspended from practice when he

sought to reform abusive bench and bar practices in

domestic relations litigation. Because state and lawyer

revenues were directly implicated, the disciplinary process

was tailored to achieve a punitive outcome through an

abuse of vague and irreconcilable code provisions.

A mere preponderance standard of proof was applied to a

prosecution which this court has repeatedly defined as

criminal in nature, In re Ruffalo, 390 Us 544, 551 (1968);

Middlesex v Garden State Bar Association, 457 US 423

(1982). In the end, New York's disciplinary authorities

managed to prevail where the same prosecution would have

failed had the father-attorney been advocating for victims

in Tennessee, Florida, Louisiana and other states where a

higher "clear and convincing" standard is properly applied.

Lawyers all across our nation are regularly called upon by

the People to challenge abuses of government power.

Fearless advocacy is not only a hallmark of the legal

profession, it is critical to the maintenance of a free society.

But what happens if an unrestrained body of government is

able to invidiously suppress such advocacy when the critical

argument is directed against it? Do our rights continue to

have substance in communities large and small? Do all

people benefit the same from safeguards that our military

and civilian personnel strive each day to preserve? Is not

the whole of a profession called to task?

This case seeks to answer such questions. Throughout our

history as leaders of the free world, American lawyers have

risked their livelihoods in the quest to assure that our most

precious rights are not systematically eroded. Without the

unique liberties exercised by our "architects of justice", it is

likely that "separate but equal" doctrine would still be alive

and well in our public schools and transportation systems.

Countless innocent people might be imprisoned each day

out of a lawyer's fear of state disciplinary retributions.

A civil rights attorney in upstate New York is now asking

this Court to review a disciplinary process which harmed

his livelihood and parent-child relations simply because he

represented minority groups and boldly championed

unpopular causes. His ordeal has been compared to that of

Nobel Prize candidate Gao Zhisheng, the Chinese lawyer

stripped of his law license and denied contact with his

children due to his representation of minority groups and

criticisms of a communist government. The cause in this

case is not garden variety, parental equality remains the

final frontier of civil rights reform in America.

Literally, an innocent man was convicted of fabricated

misconduct for endeavoring to bring equal rights to a

courtroom where children are exploited for money and

fathers are being extinguished from the family equation.

This conclusion is easily demonstrated below by the

proximate exercise of rights and adverse state action.

Without the necessary protection for our protectors, any

lawyer can fall victim simply by excelling in his or her work

at the wrong place and the wrong time.

In 1984 this Court granted writ to hear a disciplinary case

involving a lawyer who sharply criticized a fee process of an

assigned counsel program, In re Snyder, 472 US 634 (1985).

A federal appeals judge suspended his law license for six

months due to his refusal to apologize for a harsh letter he

sent to a court secretary. First and Fourteenth Amendment

issues were considered final but not addressed in an

opinion focused exclusively on the lack of grounds for the

ethical violation. The suspension was removed under facts

which pale in comparison to the widespread human rights

violations raised in this Petition. A writ of certiorari here is

crucial to the functioning of both bench and bar nationwide.

POINT ONE

The First Amendment has co-equal application

to our third branch of government.

The power to issue and revoke licenses by government

authorities is a profound one. It is an effective vehicle for

controlling human behavior and liberty. It has been abused

to suppress advertising in the legal profession, Supreme

Court of Virginia v Consumers Union, 446 US 719 (1980)

free expression in the literary profession, City of Lakewood

v Plain Dealer Publishing, 486 US 750 (1988); Bantam

Books, Inc. v Sullivan, 372 US 58 (1963) and the filing of

complaints critical of a regulatory authority in the health

profession, Beechwood Restorative Care Center v Leeds,

436 F. 3d 147 (CA 2, 2006).

In the Westboro Baptist Church case, Chief Justice Roberts

defended the rights of protesters at the funeral of a fallen

soldier by reiterating that "debate on public issues should

be robust, uninhibited and wide open... (it) occupies the

highest rung of the hierarchy of First Amendment values",

(2011), citing New York Times

Snyder v Phelps, 562 US

v Sullivan, 376 US 254 (1964). In the concluding part of the

opinion, speech was described as a powerful force that can

move people in profound ways.

In a similar vein, speech critical of a state's divorce and

family courts can move their beneficiaries to extreme

retributions. However, offended lawyers and judges will not

openly concede their instigation or participation in

unlawful retaliation. Instead they will act or refuse to act

off the record, behind the scenes and in highly discreet and

sophisticated ways. In this case, they facilitated and

promoted false, embellished and excessive charges of ethics

violations to suppress such speech and complaints.

In the record below, the petitioner sought diverse relief in

the proper form of an omnibus motion directed to ongoing

unconstitutional practices in his recurring and extant ten

year disciplinary process. He cited offensive reform activity

for abuses he experienced in two important capacities in the

divorce and family court system of New York State.

When retributions upon his livelihood and parenting rights

became clear, he sought to hold a growing number of judges

and ethics lawyers accountable. In emphasizing the public

benefit behind his reform efforts, petitioner related judicial

misconduct in formal complaints and website publications

which would easily lead to retaliation and systemic bias.

One of petitioner's formal complaints before the New York

Commission on Judicial Conduct contained a summary of

judicial abuses catalogued during his organizing and reform

activity over a period of many years. It was published on

his public website concededly monitored by the respondent.6

One excerpt published on April 23, 2013 states: "A violator of our

supreme laws should not be able to gain infallibility simply by

having his or her name added to a judicial panel. Indeed, the former

chief judge of our state's highest court panel in Albany was convicted

of multiple federal crimes during the nineties.. As relevant here, the

ex-chief justice directed paid court staff to investigate a New Jersey

lawyer for purposes of harming his licensing interests in this state

simply because the lawyer obtained a close relationship with the

judge's mistress...

Much of the misconduct described in this Complaint and the

preceding ones involve judges with offices in the Syracuse Onondaga

County Courthouse. The chief administrative judge there was among

the named defendants in yet another civil rights action brought by

the chief clerk alleging improper political influence directed against

a competing (handicapped) judge of the Family Court. It resulted in

a $600,000 recovery and extensive taxpayer liability, Morin v

Tormey, 626 F.3d 40 (2nd Cir 2010). As stated, my case is insulated

from similar recourse by arbitrary status."

Only ten days after this publicly released complaint, a

Syracuse support magistrate fabricated a PhD among

petitioner's credentials to impose an unsustainable child

support order during petitioner's four years of license

Suspension at the time. One month later, ethics lawyers

conceded their objections to such public statements with a

commitment to continue their opposition to petitioner's

reinstatement as a direct consequence.

There was no specificity or charge connected with this

commitment made in open Court, and the presiding panel

refused to hear petitioner's First Amendment claims. Two

weeks after that, it imposed the current six month (extant)

suspension. Absent certiorari by this Court, this bad faith

treatment will continue as a life term disbarment based on

petitioner's status as a crime victim. Meanwhile convicted

lawyers in petitioner's region, including one who served a

jail term, suffered no loss of licensing privileges.

This is unquestionably an extraordinary case without legal

precedent. Regardless, the goal was simple: to coerce an

abandonment of First Amendment rights through invidious

and protracted deliberations in petitioner's inextricably

entwined domestic and disciplinary matters. One member

of the Third Department panel remarked that petitioner

showed no remorse. But how can a crime victim show it

when the same panel was forced to discharge its own ethics

lawyers (targeting petitioner) for falsifying time sheets?

Is petitioner's refusal to apologize any less worthy than the

attorney in Snyder who was simply advancing his fee

interests? This comparable leads to a framework of analysis

based on analogous opinions of this Court. Petitioner's

rights were relegated to non-existent status. Depending on

what the circumstances called for, a select review of the

facts was applied or the misconduct of ethics lawyers was

disregarded to reach a predetermined outcome. In short,

there remains no protection for judicial whistleblowers.

WVR

Accordingly, a hybrid analysis is required which draws

upon two lines of reasoning applied to public employers and

licensing agencies generally. Two principal cases decided

the same year in each context are properly merged here:

Garcetti v Ceballos, 547 US 410 (2006) and Beechwood

Care Center v Leeds, 436 F.3d 147 (2nd Cir. 2006).

In the first case, a supervising deputy district attorney

claimed disciplinary retaliation arising from an offensive

memo which was made public. Unlike the teacher in

Pickering v Board of Education, 391 US 563 (1968) who was

speaking at a school board meeting, this Court explained

that the attorney in Garcetti was acting strictly in an

internal capacity. Therefore, public interest weighed

against any First Amendment protection.

The salient events here do not involve any employment

relationship. However, the first case is necessarily cited

because the violators have been treating petitioner in

material respects as an employee using their supervisory

power over licensed attorneys. Petitioner's case also does

not feature any internal memo or important employer

interest. Instead, more than the Pickering case, it is filled

with vital public interests presented in multiple forums.

This brings us to the second case where a federal appeals

court found that circumstantial proof was sufficient to show

retaliation by a regulatory agency over professionals in the

health care field (the second alternate context). Key

excerpts from the Beechwood case show striking analogies

to the facts in this case:

"Appellants principally claim that DOH, in

retaliation for Brook Chambery's many complaints,

protests, and lawsuits, conducted repeated nitpicking surveys of Beechwood, trumped up

allegations of deficiencies, and enlisted the help of

HCFA officials, all culminating in the revocation of

the Chamberys' operating certificate; and that this

violated Appellants' right against retaliation for

speech protected by the First and Fourteenth

Amendments... This is evidence from which a jury

could reasonably find that the DOH was

campaigning against the partnership as retaliation

for the exercise of First Amendment rights. We

therefore vacate and remand as to the First

Amendment claim."

Applying this authority, a prima facie case of unlawful

retaliation exists in attorney regulation matters by:

showing that an individual spoke on matters of

public concern (or attempted to access any court or

agency for recourse), Friedi v New York, 210 F.3d 79

(2nd Cir. 2000), and

that he was therefore treated adversely from

other members of the general public (or profession)

by the entity being criticized, Koziol v Hanna, 107 F.

Supp 2d 170 (2000).

By maintaining needless jurisdiction over petitioner's

parent-child relationships, destroying livelihood through

undue impairment of law and driving licenses, and keeping

scrutiny over critical statements at public assemblies, the

violators have conducted themselves no differently than the

school board and regulatory agencies did in Pickering and

Beechwood. Worse than anything implicated in those cases,

the victim here was and remains subject to threats of

contempt for "child support" deficiencies orchestrated over

many years of unrestrained misconduct.

Petitioner's criticisms of New York's divorce and family

courts were also set out extensively in pleadings and

motions in those same courts since 2006. In the record,

SUE

petitioner cited his ex-spouse's divorce lawyer as a prime

example of abuse. Citations were made to a protection order

necessarily issued by the first assigned divorce judge

against his entire law office to prohibit unethical

disclosures and communications with outside parties. This

same attorney was a recently seated member of the

relevant attorney ethics committee when the first

prosecution against petitioner was commenced in 2008.

This raises a further distinct right of access to our courts

under the same First Amendment. The debate at issue was

directed squarely at the judicial branch of government.

Retaliation is therefore established in the same manner as

disciplinary civil rights cases are litigated on behalf

prisoner clients convicted of heinous crimes, Friedl, supra;

Franco v Kelly, 855 F.2d 584 (2d Cir. 1988). New York

courts cannot exceed their authority under our Constitution

using a rule of necessity in pay raise litigation any more

than they can suppress the petitioner in his criticisms of

that litigation through contemporaneous disciplinary

action, Maron v Silver, 58 AD3d 103 (Third Dept 2008).

The father-attorney was singled out not only because of his

critical statements to the media and public gatherings

regarding parenting rights but more insidiously in discreet

reactions to offensive material discovered in appeal filings.

Unlike the bar of the State of Virginia which sought refuge

behind a consumers group in the vindication of First

Amendment lawyer advertising protections, this victim

placed himself personally under fire in the vindication of

rights far more precious to the People under the same

Constitution, see Supreme Court of Virginia, supra.

The latter case has particular application here because this

Court made it clear that Virginia's courts possessed

authority to initiate disciplinary complaints against those

who violated advertising prohibitions. In this capacity, they

enjoyed no absolute immunity. In New York, the same

authority is found in 22 NYCRR 100.3B(3)(courts generally)

and 22 NYCRR 1022.19(b)(1)( grievance referrals).

As all civil rights lawyers know, whistleblower and

retaliation claims are commonly shown through proximate

circumstantial inference, Beechwood Care Center, supra.

This proceeds on the logic that a state actor will not concede

back room tactics which suppress complaints and public

expression. Here, such logic was set aside through the

confined structure of disciplinary processes and gross

limitations upon petitioner's capacity for asserting a

meaningful defense. He was prevented from securing

crucial discovery in both his domestic and disciplinary

matters interacting upon his most precious joint liberties.

In Konigsberg v State Bar of California, 353 US 252, 273

(1957), this Court emphasized the importance "both to

society and the bar itself that lawyers be unintimidatedfree to think, speak and act as members of an independent

bar". In New York, this freedom is subject to purposely

vague regulations that can be made to encompass offensive

criticisms of the profession in fee generating industries

such as domestic relations. Such overbroad rules can easily

be exploited to punish or expel members of the bar who

deviate from an unwritten norm, i.e. In re Snyder, 472 US

634, 645 (198 5)("As officers of the court, members of the bar

may appropriately express criticisms" regarding fee

documentation, invalidating a six month suspension).

The overbroad rules reprinted earlier are key examples.

They were employed to delay reinstatement indefinitely

through inquiries and admonitions. Respondent was

thereby able to secure excessive punishment. Virtually any

conduct can come within the reach of these rules, making

them little different than the harassment and disorderly

conduct laws found to be unconstitutional in Gooden v

Wilson, 405 US 518 (1972) and City of Houston v Hill, 482

US 451 (1987), see also U.S v Stevens, 559 US 460 (2010);

United States v Wunsch, 84 F. 3d 1110, 1117-1119 (CA 9,

1999)(declaring unconstitutional a rule required attorneys

to "abstain from an offensive personality").

In this sense, attorney codes are enforced contrary to an

express purpose for protecting the public, In re Singer, 738

NYS2d 38, 40 (AD 1, 2002). It is this public commitment

which enables disciplinary authorities to circumvent due

process protections normally accorded to comparable

prosecutions, Id. However, when the public purpose is

subsumed by an ulterior motive, a double impact is visited

upon an unsuspecting practitioner. He or she is suppressed

in protected activity and simultaneously impaired by the

dilution of procedural safeguards, Koziol v Hanna, 107 F.

Supp. 2d 170 (NDNY 2000).

First Amendment rights do not incur a disappearing act on

the steps of a state courthouse simply because an aspect of

judicial power and lawyer ethics is being challenged in

matters of parent-child relations. Its doors are there to be

opened to petitions and expressions which do not usurp the

conduct of proceedings. In this case, there was no contempt

implications or warnings associated with the expressions.

Moreover, there was no rush to judgment. The retaliation

claimed against Appellate Division Justices became

increasingly plain as disciplinary processes took on a

bizarre countenance that yielded no other explanation. A

relevant excerpt from this Court's opinion in Spevack v

Klein, 385 US 511, 516 (1967) is on point:

The threat of disbarment or the loss of professional

standing, professional reputation and of livelihood

are powerful forms of compulsion to make a lawyer

relinquish (a constitutionally protected) privilege.

That threat is indeed as powerful an instrument of

compulsion as 'the use of legal process to force from

the lips of the accused individual the evidence

necessary to convict him...', United States v White,

322 US 694, 698; Miranda v Arizona. 384 US 436,

461. Lawyers are not excepted from the word 'person'

as found in the Constitution. "Like the school teacher

in Slochower v Bd of Education, 350 US 551 and the

policeman in Garrity v New Jersey, 385 US 493,

lawyers also enjoy first class citizenship".

POINT TWO:

Fourteenth Amendment rights cannot be set aside to

suppress protected activity of a civil rights attorney.

In the disciplinary processes at issue here, a series of

defects rendered the successive suspensions of petitioner's

law license unconstitutional. Procedural and substantive

analyses under the Fourteenth Amendment are at play

throughout this petition. To begin with, the process was

inherently flawed at the onset by the combined nature of

prosecution, judge and jury. They were all directly

controlled by the same Third and Fourth Department

Justices, In re Murchison, 349 US 133 (1955).

Given the serious stigma, damage to livelihood and

criminal nature of such proceedings, a jury right was

implicated, Ruffalo, Middlesex, supra. This is especially

true where, as here, a systemic or institutional bias is

evident by the financial interests of competing Committee

members impacted by petitioner's protected activity, see

Gibson v Berryhill, 411 US 564 (1973)(actual prejudice

irrelevant to optician disciplinary process because it was

inherently biased due to a likelihood of prejudice by

decision making colleagues); Turner v Rogers, 564 US

(2011); Caperton v A.T. Massey Coal, 556 US 868 (2009).

Petitioner is seeking review pursuant to this Court's

supervisory authority over attorneys, reciprocal treatment

regarding federal licenses, and our national interest in civil

rights advocacy. He is also seeking review under a category

of equal protection cases established by this Court in

Village of Willowbrook v Olech, 528 US 562 (2000)("class of

one" equal protection violations based on select enforcement

of local codes raised and ignored below). The attorney

disciplinary code and rules here were manipulated strictly

to harm petitioner unlike other attorneys who did not

engage in public criticisms of bench and bar practices.

Further defects lie in the combined aspect of defense and

mitigation at a single confirmation hearing before the Third

Department court which is at odds with one another, see 22

NYCRR 1022.20(c) and(d). In this case, the father-attorney

was at all times subject to conflicting presumptions of guilt

and innocence insofar as the accused in these proceedings

are often punished simply for not yielding to mitigation.

Both cannot occur simultaneously. There is no statute of

limitations or laches, Matter of Dondi, 63 NY 2d 331 (1984),

and this elevates the risk of wrongful conviction occurring

here. Other defects are addressed in preceding sections.

Supplementing the defects in due process is the aspect of

evidentiary standards as a distinct basis for vacating the

orders of suspension. All the suspensions over eight years

and continuing were obtained by evidence evaluated under

a standard of proof less than "clear and convincing", Matter

f Capoccia, 59 NY2d 549 (1983). The suspension of a law

license is a matter at least as serious as a fraud action,

removal proceeding or punitive damage claim, Wilner v

Committee on Character and Fitness, 373 US 96 (1963).

In more than 40 states, the District of Columbia and most

federal courts, attorney disciplinary matters are governed

by the heightened standard made uniform by this Court in

parental termination cases, Santosky v Kramer, 455 US

745 (1982), see i.e. In re Batista, 846 So. 2d 479 (Fla. 2003);

In re Phelps, 953 So. 2d 45 (2007); In re Thalheim, 853 F.2d

383, 389 (5th Cir. 1988). The time has long passed for a

similar uniform protection for our architects of justice, see

David M. Appel, Note, Attorney Disbarment Proceedings

and the Standard of Proof, 24 Hofstra L. Rev. 275 (1995);

Addington v Texas, 441 US 418 (1979).

In contrast, lawyer reinstatement in New York's Third

Department is granted only upon the higher standard of

"clear and convincing evidence." This is opposite of the

standards employed in federal and state courts elsewhere

in this country. Such a low and high standard of review is

ideal for targeting a lawyer's offensive speech outside the

court room on a pretext of protecting the public.

On the substantive end, the process applied here must be

evaluated for its combined impacts upon petitioner. For

example, in Rochin v California, 342 US 165 (1953), this

Court recognized that a seizure of evidence from the

digestive system of a suspect which was later used to

convict him on a drug charge was consistent with existing

procedures. However when considered as a whole, they

nevertheless shocked the conscience of a civilized society.

In similar vein, when viewing the arbitrary, egregious and

discreet means used by judicial disciplinary authorities to

convict this civil rights attorney of life impacting ethics

charges on a preponderance standard of evidence, the

process here shocks the same conscience. Such assessments

are typically made upon a "totality of circumstances", see

Lassitur v DSS, 452 US 18, 24 (1981)("substantive due

process, for all its consequences... has never been, and

perhaps can never be, precisely defined", see also Joyner v

Dumpson, 712 F2d 770, 777 (CA 2, 1977);Sacramento v

Lewis, 523 US 833, 845 (1998); Washington v Glucksberg,

521 US 702 (1997); Daniels v Williams, 474 US 327 (1986).

The speech and filings which are being targeted concern

matters of vital public importance. It is not a case of flag

burning or funeral protest which this Court found to be

protected under the Constitution, i.e. Snyder v Phelps,

supra. It features the rights of parents to raise children in

separated contexts without undue infringement by the

state in our nation's domestic relations courts. Through

unethical, lawyer-generated controversy, moms and dads

are forced needlessly to fight over their own offspring. A fee

generating industry has resulted, harming children much

like the tobacco industry does with its profit motive.

This is also not an isolated instance of protected speech

such as a prosecutor criticizing a judge during a criminal

trial, Garrison v Louisiana, 379 US 64 (1964). Neither is it

a case where a lawyer published statements in a national

magazine describing New York Appellate Division Justices

as "madams and whores," Erdmann v Stevens, 458 F.2d

1205 (2nd Cir. 1972)(related ethics charges were ultimately

vacated).

This is a case focused on petitioner's role as a public

interest advocate who sacrificed himself time and again to

promote the civil rights of landowners, racial minorities,

women administrators and government workers, among

others, see i.e. Oneida Indian Nation v Oneida County, 132

F. Supp.2d 71 (NDNY 2000); Patterson v City of Utica, 370

F.3d 322 (2nd Cir., 2004); Currie v Kowalewski, 842

F.Supp. 57 (NDNY, 1994) and Koziol v Hanna, supra.

In pursuing such civil rights cases, petitioner has employed

proof methodology which has never been extended to

attorney disciplinary matters. For decades now, our courts

have reiterated that "most discrimination or retaliation is

not carried out so openly as to provide direct proof of it,

accordingly an aggrieved party can use circumstantial

evidence to prove a prima facie case," Sanders v NYC

Human Resource Admin, 361 F.3d 749 (2nd Cir. 2004).

Such wisdom is even more compelling in sophisticated work

environments where petitioner has made his living, see

generally Morris v Landau, 196 F.3d 102 (2nd Cir 1998). It

has long been established that "circumstantial evidence is

not only sufficient and persuasive but may be more certain

and satisfying than direct evidence of intentional

discrimination", Rogers v Missouri Pacific R. Co. 352 US

500, 508 (1957). Hence, the "onerous" proof burdens

historically placed upon civil rights victims, i.e. McDonnell

Douglas v Green, 411 US 792 (1973); Texas D.C.A. v

Burdine, 450 US 248, 252 (1981) may be obviated by

showing common-sense cause and effect.

Indeed this was the very position advanced in Lopez v

Metropolitan Life, 930 F.2d 157, 162 (2nd Cir. 1991) when

petitioner, representing a minority employee, compared the

evidentiary framework created by the courts to an effective

repeal of a congressional act. Ironically, well ahead of its

time, this position was later embraced by lawmakers when

the Civil Rights Act of 1991 was passed. Burdens were then

relaxed by this Court in Desert Place v Costa, 539 US 90,

99 (2003). Mixed motive cases are now evaluated in a

victim's favor when the improper factor alone, i.e. public

criticism, is inferred from all the facts. Peculiar treatment

petitioner over many years is certainly a strong inference.

This case features not only the serious impacts of business

closure, license suspension, child deprivation, unlawful

seizure and contempt threats, but also a constant barrage

of libel and slander which can best be summarized as

psychological torture over so long a period. As one federal

appeals court emphasized, "our precedent allows a

combination of seemingly minor incidents to form the basis

for a constitutional retaliation claim once they reach a

critical mass", Phillips v Bowen, 278 F.3d 103, 109 (2nd Cir.

2002). A prima facie case is therefore shown here by

undisputed facts surrounding offensive speech and filings

followed timely by peculiar processes and adverse events.

POINT THREE

Government transparency dictates that the proceedings

below should have been opened to the public.

As it stands before this Court, the attorney disciplinary and

reinstatement process in New York's Third Department will

remain secret. By all standards of logic, the orders of both

the originating and high courts of New York are final for

purposes of a confidentiality ruling. The record cannot be

denied in that regard. The First and Fourteenth

Amendment claims then become necessary components of

this finality since they are inextricably connected.

The secrecy of this process comprises yet another tactic for

punishing petitioner's speech. So egregious has it become

that the latest anonymous complaint of respondent, stale

since first presented in June, 2016, caused petitioner to

seek court review of his nearly completed book manuscript

entitled, Killing Courts; Corruption and Carnage in

America's Divorce Industry, 12-a, 44-a.

Like everything else raised by petitioner, this request

seeking to avoid another contempt by ambush was denied

"in its entirety" without public explanation. This has

compelled petitioner to revise that manuscript to exclude

"guesswork" violations of practice prohibitions and ethics

rules under a test publication entitled, Satan's Docket

(featured in full page newspaper promotions).

This practice of disregarding petitioner's constitutional

claims and making no mention of them in any decision to

date elevates the attack on petitioner's public credibility

and reform message. Censorship is magnified many times

over. The only matter finally released to the public is the

outcome and by that time, accountability fades quickly if it

occurs at all during the process leading up to that outcome.

SWIM

It must be emphasized that any realistic presentment of

this case in any court or disciplinary case will be tested by

the chaotic nature of proceedings maliciously inflicted upon

petitioner. It is not the responsibility of a victimized citizen

who pursued proper channels to explain why these absurd

proceedings occurred. Unlawful retaliation is easily inferred

by their unprecedented conduct.

This was an elementary circumstance which escaped the

learned skills of a federal judge who dismissed petitioner's

last civil rights action. Judge Gary Sharpe did so with

extreme bias after a recusal motion was filed based on

United States v Cossey, 632 F.3d 82 (2nd Cir. 2010). There a

federal appeals court removed this judge from a case due to

his claim of a human gene to govern decisions that would

not be found by scientists for "another fifty years." An

erosion of public confidence in our judiciary was the reason.

Here he ultimately dismissed on Younger abstention policy

and deferred petitioner's federal claims to the courts below.

There is nothing significant to distinguish lawyer

accountability proceedings from other categories of

litigation. Indeed the doctor (employer) who was initially

cleared of sexual harassment claims in a case prosecuted by

petitioner early in his career was not favored with such

confidentiality. Nor was he benefitted when that dismissal

was reversed unanimously by the Second Circuit and later

found liable on the same trial record, Currie v Kowalewski,

810 F. Supp. 31 (NDNY 1993)("Kowalewski I"); Currie v

Kowalewski, 842 F. Supp. 57 (1994) ("Kowalewski II").

Beginning on February 1, 2015, this Court's attorney

disciplinary proceedings were made public. It reversed the

presumption of secrecy behind such proceedings which

previously had been the rule and required participants to

show cause for making them confidential. The justifications

for that reversal in procedure are the same here with the

additional one that a major public interest is at stake.

- 29

That justification can be supported by a 2015 disciplinary

prosecution brought by the same respondent featuring a

documentary video produced by an independent public

interest group known as Divorce Corp. In the interview,

petitioner's name was presented on the screen with the

words "Civil Rights Attorney." The producer knew all about

petitioner's suspension but was not subject to the relevant

prohibition in the now eight year extant suspension order.

Petitioner was nevertheless made subject to confidential

proceedings and an outcome which bear upon the omnibus

motion now before this Court. In another prosecution the

same year, petitioner was able to have a hearing made

public with Divorce Corp videotaping it before a Third

Department panel.

The petition of charges was summarily dismissed

retroactively despite an adverse finding of a hearing officer.

This occurred in a confidential order after petitioner

explained to the presiding justice that his ethical duty of

supervision over a sociopathic secretary was no different

than its own ethical duties over appointed ethics lawyers

allowed to resign for falsifying their time sheets. They were

never publicly prosecuted criminally or ethically. This

Court recently ruled that a litigant is entitled to discovery

when circumstances of such compelling nature infer judge

bias, Rippo v Baker, 580 US

(2017).

CONCLUSION

Based on the foregoing, petitioner respectfully asks this

Court to grant his Petition for Writ of Certiorari to the New

York Court of Appeals,

January 6, 2018

Respectfully submitted,

Leon R. Koziol

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.