Petition for Writ of Certiorari — Michael Anthony Deem, Petitioner v. John P. Colangelo, et al.
Supreme Court briefOct 31, 2019
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No.
IN THE
Supreme Court of the United States
MICHAEL A. DEEM, PETITIONER,
v.
JOHN P. COLANGELO,
JUSTICE OF THE SUPREME COURT,
COUNTY OF WESTCHESTER
PETITION FOR A WRIT OF CERTIORARI
TO THE STATE OF NEW YORK COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
MICHAEL A. DEEM
Pro Se
26 Keystone Road
Yonkers, NY 10710
914-482-3867
CURRY & TAYLOR 202-350-9073
i
QUESTIONS PRESENTED
Petitioner is involved in a high conflict divorce
and custody proceeding due to his estranged wife filing
fabricated allegations against him. They are the parents
of two children. The New York State Supreme Court
Appellate Division, Second Department and New York
State Unified Court System (NYSUCS) have a custom
and practice of summarily denying all discovery
regarding, inter alia, custody to all litigants in
contested custody disputes, including fit parents that
have provided minimum standards of care and whose
children are neither neglected nor abused, such as
Petitioner. The Third and Fourth Departments permit
custodial discovery. As a result, Petitioner has not had
any
- - contact with his children since June 9, 2018.
Petitioner originally agreed to a forensic
evaluator (FE) in the divorce and custody dispute
because his retained attorney, when he could afford
one, said no custodial discovery was permitted.
Petitioner was forced to go pro se and discovered the
decision in Janus v. AFSCME, 585 U.S. ___ (2018). He
moved to vacate the order appointing the FE. The
matrimonial court refused to even consider Petitioner’s
motion. Petitioner filed for a writ of mandamus seeking
to compel the matrimonial court to decide his motion.
The Appellate Division granted the New York State
Attorney General’s motion to dismiss, without opinion.
The New York State Court of Appeals dismissed the
appeal “upon the ground that no substantial
constitutional question is directly involved.” The
questions presented are:
1. Whether a court appointed FE’s examination of
a fit parent’s children over that fit parent’s
ii
objection violates that fit parent’s right to
control the upbringing of his children.
2. Whether compelling a fit parent to cooperate
with a court appointed FE, sanctioning a fit
parent for not cooperating with a FE, or
granting a FE sole discretion regarding what
recommendations are made to the matrimonial
court regarding custody and how those
recommendations are derived, violates that fit
parent’s right to free speech.
3. Whether compelling a fit parent to pay the fees
and expenses of a court appointed FE violates
that fit parent’s right to free speech.
4. Whether denying a fit parent all custodial
discovery in a contested custody dispute in the
Second Department, but not fit parents in the
Third or Fourth Departments, violates that fit
parent’s rights to due process and equal
protection.
iii
PARTIES TO THE PROCEEDING
Petitioner
MICHAEL A. DEEM.
Respondents
JOHN P. COLANGELO, Justice of the Supreme Court,
County of Westchester;
ALAN D. SCHEINKMAN, Presiding Justice, Supreme
Court of the State of New York – Appellate Division,
Second Judicial Department;
LAWRENCE K. MARKS, Chief Administrative
Judge, State of New York;
JANET DiFIORE, Chief Judge, State of New York;
and
LORNA M. DiMELLA-DEEM.
STATEMENT OF RELATED CASES
Deem v. Colangelo, et al., A.D. No. 528205, New York
State Supreme Court Appellate Division, Third
Department. Decision and Order on Motion entered
Apr. 5, 2019. Unpublished.
Deem v. Colangelo, et al., No. SSD 26, New York State
Court of Appeals. Order of Dismissal entered Jun. 6,
2019. Unpublished.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..............................................................i
PARTIES TO THE PROCEEDING .................................................iii
STATEMENT OF RELATED CASES.............................................iii
TABLE OF AUTHORITIES .............................................................v
OPINIONS BELOW ......................................................................... 1
JURISDICTION ............................................................................... 1
RELEVANT PROVISIONS INVOLVED ......................................... 1
STATEMENT .................................................................................. 3
REASONS FOR GRANTING THE PETITION................................. 9
CONCLUSION ............................................................................... 20
APPENDIX
Decision and Order on Motion entered Apr. 5, 2019.
Deem v. Colangelo, et al., A.D. No. 528205, New York State
Supreme Court Appellate Division, Third Department ...... 1a
Order of Dismissal entered Jun. 6, 2019.
Deem v. Colangelo, et al., No. SSD 26, New York State Court
of Appeals.................................................................................... 2a
Excerpts of the court conference held on November 9, 2019,
before Respondent Colangelo ................................................... 3a
v
TABLE OF AUTHORITIES
Page
Cases
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780,
28 L.Ed.2d 113 (1971) .....................................................16
Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46
L.Ed.2d 659 (1976) ....................................................13, 14
Daghir v. Daghir, 82 A.D.2d 191, aff’d,
56 N.Y.2d 938 (1982) .......................................................11
Janus v. AFSCME, 585 U.S. ___, 138 S.Ct. 2448,
201 L.Ed.2d 924 (2018) ......................................................i
Kessler v. Kessler, 10 N.Y.2d 445 (1962).........................10
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
L.Ed. 1042 (1923)...............................................................9
M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996) ..........................................................16
N.Y.S. Bd. of Elections v. Lopez Torres, 552 U.S.
196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008)...................19
Newton v. McFarlane, 174 A.D.3d 67, 103
N.Y.S.3d 445 (2d Dept. 2019).........................................12
Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61
L.Ed.2d 101 (1979) ..........................................................11
vi
Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct.
571, 69 L.Ed. 1070 (1925)..................................................9
Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d
201 (2005) ..........................................................................18
Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123
L.Ed.2d 1 (1993)...................................................11, 14, 15
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208,
31 L.Ed.2d 551 (1972)..........................................11, 14, 15
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,
147 L.Ed.2d 49 (2000)........................................................9
CONSTITUTIONAL PROVISIONS
Free Speech Clause, First Amendment, U.S.
Constitution ............................................................passim
Due Process Clause, Fourteenth Amendment,
U.S. Constitution............................................................... i
Equal Protection Clause, Fourteenth
Amendment, U.S. Constitution....................................... i
Article I, §9, New York State Constitution .....................2
STATUTES
42 U.S.C. §1983 .....................................................................7
New York State Civil Practice Law & Rules,
§104....................................................................................16
vii
New York State Civil Practice Law & Rules,
§506......................................................................................8
New York State Civil Practice Law & Rules,
§3001....................................................................................7
New York State Civil Practice Law & Rules,
§3120..................................................................................16
New York State Civil Practice Law & Rules,
§3121..................................................................................16
New York State Civil Practice Law & Rules,
§7801....................................................................................7
New York State Judiciary Law, §35 ...............................17
Rules
22 New York Code of Rules and Regulations,
Part 36.........................................................................17, 18
Westchester County Matrimonial Part Rules,
Rule E .................................................................................4
1
OPINIONS BELOW
The Order of the New York State Court of
Appeals dismissing Petitioner’s appeal “upon the
ground that no substantial constitutional question is
directly involved.” April 5, 2019. (Appx. 1a)
The Decision and Order of the Third Department
granting the judicial respondents’ motion to dismiss the
hybrid proceeding, without opinion. June 6, 2019.
(Appx. 2a)
JURISDICTION
The order of the New York State Court of
Appeals was entered on June 6, 2019. Justice Ginsburg
granted an extension of the deadline for this petition to
November 4, 2019, upon application in 19-A169.
Petitioner invokes this Court’s jurisdiction under 28
U.S.C. §1257(a).
RELEVANT PROVISIONS INVOLVED
a) The Free Speech Clause, First Amendment
provides:
Congress shall make no law [] abridging the
freedom of speech.
b) The
Due
Process
Amendment provides:
Clause,
Fourteenth
nor shall any State deprive any person of life,
liberty, or property, without due process of law.
2
c) The Equal Protection
Amendment provides:
Clause,
Fourteenth
nor shall any state [] deny to any person within
its jurisdiction the equal protection of the laws.
d) Article I, §9, New York State Constitution
provides:
nor shall any divorce be granted otherwise than
by judicial proceedings.
e) New York State Civil Practice Law & Rules,
§104 provides:
The civil practice law and rules shall be liberally
construed to secure the just, speedy and
inexpensive determination of every civil judicial
proceeding.
f) New York
provides,
State
Judiciary
Law,
§35(5)
All
expenses
for
compensation
and
reimbursement under this section shall be a
state charge to be paid out of funds
appropriated to the administrative office for the
courts for that purpose. [] After such claim is
approved by the court, it shall be certified to
the comptroller for payment by the state, out of
the funds appropriated for that purpose.
3
STATEMENT
Facts
Petitioner is involved in a high conflict custody
dispute and high conflict family offense proceedings
with his estranged wife, Respondent DiMella-Deem.
They are the parents of two adopted children, now 14
and 12 years old. There is no question that Petitioner
and Respondent DiMella-Deem have provided
minimum standards of care for the children, and the
matrimonial court has not found either to be unfit
parents.
Before filing the action for divorce, Petitioner’s
retained attorney, when he could afford one, informed
Petitioner that only financial discovery was allowed in
matrimonial court. No custodial discovery was
permitted by the parties. Accordingly, Petitioner
agreed to a court appointed FE and signed a stipulation
to that effect. The stipulation was then “so ordered” by
the matrimonial court.
Subsequently, an order issued appointing the FE
with terms Petitioner never agreed to; the hourly rate
was draconian, the chosen FE was not on the list of preapproved mental health practitioners for the Second
Department,1 the FE did not have special expertise in
the issues at bar (borderline, anti-social and narcissistic
personality disorders, bi-polyamorous sex addiction
1
The Second Department’s rules governing appointments of FEs
required that all appointments be made from a preapproved list of
mental health professionals, unless the list did not contain a
professional with the required expertise. There was no basis to
deviate from the list in Petitioner’s case.
4
involving incest and pedophilia, and mythomania), and
the FE was granted too much discretion in how to
conduct the examination. The difference between the
terms Petitioner reasonably believed would govern and
the actual terms in said order was tantamount to bait
and switch tactics. Petitioner moved to amend the
order 17 days later.
Petitioner adhered to the letter and spirit of the
Westchester County Matrimonial Part Rules, Rule E,
which governs motion practice. Petitioner then
attempted to vacate the order appointing the FE and
modify the preliminary conference order based on the
decision in Janus, supra. Respondent Colangelo and
the court referee refused to abide by Rule E,
repeatedly. The court referee scoffed at Petitioner’s
statement that the matrimonial court was compelled to
follow the U.S. Supreme Court’s ruling in Janus, supra.
Respondent Colangelo refused to even consider
Petitioner’s motion to vacate, without justification, and
denied Petitioner all custodial discovery pursuant to a
custom and practice within the Second Department and
NYSUCS of denying all custodial discovery to litigants
in contested custody disputes. Petitioner had no
alternative but to file an Article 78 proceeding seeking
a writ of mandamus to compel Respondent Colangelo to
rule on the motion to vacate. In an abundance of
caution, Petitioner argued in the alternative for a writ
of prohibition and declaratory relief pursuant to state
and federal law.
At base, Petitioner sought to control his own
discovery and recommendations to the court regarding
custody. He argued, inter alia: appointing an FE when
5
the children were neither neglected nor abused and
Petitioner was a fit parent violated his right to parental
relations; compelling Petitioner to speak to the FE and
pay his court determined fees violated his right to free
speech; and denying Petitioner all custodial discovery
violated his federal constitutional rights to due process
and equal protection, and state constitutional right to
divorce by judicial proceedings.
Two matrimonial judges, the commercial part
judge assigned to try the underlying divorce and
custody dispute and the Third Department all refused
to stay the underlying trial. Transcripts of the trial are
pending.
Petitioner, a loving, loved, caring and cared for
father, seeks the protection of this Court to vindicate
his rights and commensurate rights of his children, and
be reunited with his children. The first attorney for the
children (AFC) stated on the record “the[ children] do
love their father].” The current AFC stated on the
record that the children “want to see their father.”
However, all three levels of the New York State
judicial system have failed or refused to address
Petitioner’s claims or permit reunification, without
cause.
Procedural History
On November 7, 2017, Petitioner filed an action
for divorce seeking, inter alia, joint custody of the
parties’ two children. On December 6, 2017,
Respondent DiMella-Deem answered seeking, inter
alia, sole custody of the children. On January 2, 2018,
Petitioner filed a reply.
6
On May 23, 2018, a preliminary conference was
held. The parties agreed to the appointment of an FE,
and the matrimonial court so ordered same in the
preliminary conference order.
On June 5, 2018, Respondent Colangelo entered
an order appointing Stephen P. Herman, M.D., as the
FE in Petitioner’s custody dispute at an hourly rate of
$500, approximately twelve times what Petitioner was
earning at the time, plus expenses. The FE’s rate was
approximately twice the market rate.
On June 22, 2018, Petitioner filed a motion to
modify the order appointing the FE by, inter alia,
appointing an FE with more suitable qualifications and
lower hourly rate.
On September 26, 2018, a pre-motion conference
was held with the matrimonial court referee regarding,
inter alia, Petitioner’s intended motion to vacate the
order appointing Dr. Herman. During the conference
the court referee stated that “no custodial discovery is
permitted in Westchester County.” The referee refused
to certify Petitioner’s motion to vacate even though it
did not suffer from any procedural defects.
On October 15, 2018, Petitioner filed his motion
to vacate pursuant to Westchester County Matrimonial
Rules, Rule E.
On November 7, 2018, a compliance conference
was held with the court referee. The referee stated
Respondent Colangelo wanted Respondent DiMella-
7
Deem to file a note of issue and certify the case as trial
ready.
On November 9, 2018, a conference was held
with Respondent Colangelo. Respondent Colangelo
refused to consider Petitioner’s motion to vacate as it,
allegedly, was not properly before the court because it
was not certified by the referee. Petitioner responded
that Rule E “specifically states that the intent of the
rule is not to deny a party’s ability to file motions.”
(Appx. 7a) Respondent Colangelo refused to change his
ruling. (Appx. 9a, 11a)
On December 21, 2018, Petitioner filed the
underlying hybrid proceeding pursuant to CPLR,
§7801, et seq. seeking a writ of mandamus to compel
Respondent Colangelo to decide the motion to vacate
and writ of prohibition to prevent future violations of
Petitioner’s rights. Petitioner also pled claims for
declaratory judgment pursuant to CPLR, §3001 and 42
U.S.C. §1983, that, inter alia, Petitioner’s federal
constitutional rights to parental relations and free
speech were violated by appointment of the FE.
Petitioner also named Respondents Scheinkman,
Marks and DiFiore, in their administrative capacities as
supervising judges, seeking declaratory judgment
pursuant to CPLR, §3001 and 42 U.S.C. §1983, that,
inter alia, the Second Department and NYSUCS have
a custom and practice of violating litigants in contested
custody disputes their federal constitutional rights to
parental relations, free speech, due process and equal
8
protection, and state constitutional right to “divorce []
by judicial proceedings.” Specifically, denial of all
custodial discovery and court appointed FEs
controlling discovery and recommendations to the court
regarding custody, even when the parents are fit and
minimum stndards of child care are met. CPLR
§506(b)(1) required the Article 78 claims to be filed in
the Second Department.
On January 7, 2019, the Second Department
transferred the matter to the Third Department, sua
sponte.
On February 22, 2019, the New York State
Attorney General filed a motion to dismiss.
On March 11, 2019, Petitioner opposed the
motion to dismiss.
On April 5, 2019, the Third Department granted
the motion and dismissed the matter without opinion.
On June 6, 2019, the New York Court of Appeals
dismissed Petitioner’s appeal sua sponte “upon the
ground that no substantial constitutional question is
directly involved.”2
2
On May 24, 2019, opposing counsel in the underlying custody
dispute filed a letter with the matrimonial court opposing
Petitioner’s request to depose a relative of the parties that was
believed to have personal knowledge of certain sexual misconduct
by Respondent DiMella-Deem that is punishable under the New
York State Penal Law as a Class E Felony. Opposing counsel’s
9
REASONS FOR GRANTING PETITION
I. APPOINTMENT
OF
A
FORENSIC
EVALUATOR TO EXAMINE A FIT
PARENT’S CHILDREN OVER THAT FIT
PARENT’S
OBJECTIONS
VIOLATES
THAT FIT PARENT’S RIGHT TO
CONTROL THE UPBRINGING OF HIS
CHILDREN..
“The liberty interest at issue in this case—the
interest of parents in the care, custody, and control of
their children—is perhaps the oldest of the fundamental
liberty interests recognized by this Court.” Troxel v.
Granville, 530 U.S. 57, 68 (2000). See, e.g., Pierce v.
Society of Sisters, 268 U.S. 510, 535 (1925) (“The child is
not the mere creature of the State.”); Meyer v.
Nebraska, 262 U.S. 390, 402 (1923) (“The
[governmental] interference [with parental decisions] is
plain enough, and no adequate reason therefore [] has
been shown.”).
The matrimonial court “gave no special weight to
[Petitioner]’s determination of his [children’s] best
interests.” Troxel v. Granville, 530 U.S. at 69. “More
importantly, it appears that the [state] Court applied
exactly the opposite presumption.” Id.
Here, Petitioner sought to prove that
Respondent DiMella-Deem placed her interests above
those of the children by filing fabricated allegations
letter expressly provides, “A deposition of [] is not warranted nor
allowed in the Second Department.” Petitioner was denied the
deposition. (emphasis added)
10
against Petitioner in matrimonial and family court. She
knowingly and unnecessarily compelled a custody
dispute that, under the custom and practice of the
Second Department and NYSUCS, required an
intrusive government imposed forensic examination of
the children. Such an examination was not in the
children’s best interests. Petitioner could have proven
that Respondent DiMella-Deem forfeited her right to
custody if he had been afforded the discovery the New
York State legislature provided for in the CPLR, and is
supposed to be guaranteed by the New York State
Constitution, Art. I, §9. That opportunity still exists.
The evidence awaits to be “discovered” in preparation
for a new trial.
However, as in Troxel, Respondent Colangelo
“applied
exactly
the
opposite
presumption.”
Respondent Colangelo presumed he knew what was in
the best interests of the children (appointment of a FE
to examine the children) and how to determine their
interests (by having the FE conduct a forensic
examination with no clear parameters and make
recommendations to the court based on that
examination). Appointment of a FE and compelling the
children to undergo a forensic examination violated
Petitioner’s right to the care, custody and control of his
children. It also violated controlling precedent of the
New York State Court of Appeals that a forensic
evaluation may only be conducted with consent of the
parents. Kessler v. Kessler, 10 N.Y.2d 445, 459 (1962).
This Court has also held that “[s]o long as certain
minimum requirements of child care are met, the
interests of the child[ren] may be subordinated to the
interests of other children, or indeed even to the
11
interests of the parents or guardians themselves.” Reno
v. Flores, 507 U.S. 292, 304 (1992).
Here, there were no allegations that the children
were neglected or abused. Petitioner and Respondent
DiMella-Deem unquestionably provided minimum
standards of child care to both children. There was no
basis for the matrimonial court to delve into what it
perceived to be “the best interests of the children.”
Both parents, on the pleadings, were entitled to the
presumption that they were fit, Parham v. J.R., 442
U.S. 584, 602 (1979) (“natural bonds of affection lead
parents to act in the best interests of their children”),
and joint custody presumed, unless discovery and a
trial proved otherwise. Because both parents were fit,
“the [matrimonial court]’s interest in [provid]ing for
[Petitioner]’s children [wa]s de minimis.” Stanley v.
Illinois, 405 U.S. 645, 657 (1972).
Respondent Colangelo should have vacated the
order appointing the FE, granted the parties full
discovery, as provided for by the state legislature in the
New York State Civil Practice Law and Rules and New
York Constitution. Petitioner could have then used
tools of discovery to prove Respondent DiMella-Deem
filed fabricated allegations. And in doing so she
forfeited her right to custody by having Petitioner
completely ripped out of the children’s lives with
fabricated allegations. See, Daghir v. Daghir, 82 A.D.2d
191, 194, aff’d, 56 N.Y.2d 938 (1982) (“Indeed, so
jealously do the courts guard the relationship between
a noncustodial parent and his child that any
interference with it by the custodial parent has been
said to be an act so inconsistent with the best interests
of the children as to, per se, raise a strong probability
12
that the offending party is unfit to act as custodial
parent.”).
Petitioner’s iterative approach to determining
custody by trial is supported by Newton v. McFarlane,
174 A.D.3d 67, 103 N.Y.S.3d 445 (2d Dept. 2019). There
the court held, “before plunging full-bore into a
contested custody hearing, the Family Court should
have first considered whether the mother's petition for
modification alleged sufficient facts which, if
established, would have warranted a full inquiry into
the existing custodial arrangement.” Id., at 77.
Likewise, the matrimonial court below should have first
determined if Respondent DiMella-Deem forfeited her
right to custody by seeking a custody dispute against a
fit father or was unfit in light of Petitioner’s allegations
that she suffered from grave mental illness, bipolyamorous sex addiction involving incest and
pedophilia, and mythomania, before compelling a highly
intrusive and detrimental forensic examination of the
children.
II.
13
COMPELLING A FIT PARENT TO
COOPERATE
WITH
A
COURT
APPOINTED FORENSIC EVALUATOR,
SANCTIONING A FIT PARENT FOR NOT
COOPERATING WITH A FORENSIC
EVALUATOR, GRANTING A FORENSIC
EVALUATOR
SOLE
DISCRETION
REGARDING
WHAT
RECOMMENDATIONS ARE MADE TO
THE
MATRIMONIAL
COURT
REGARDING CUSTODY AND HOW
THOSE
RECOMMENDATIONS
ARE
DERIVED,
VIOLATES
THAT
FIT
PARENT’S RIGHT TO FREE SPEECH.
Forcing free and independent [fit parents] to
endorse ideas [of a court or FE] they find
objectionable is always demeaning, and for this
reason, one of our landmark free speech cases
said that a law [or court order] commanding
‘involuntary affirmation’ of objected-to beliefs
would require ‘even more immediate and urgent
grounds’ than a law [or court order] demanding
silence.
Janus v. AFSCME, 138 S.Ct. at 2464.
Further, “the concept that government may
restrict the speech of some elements of our society in
order to enhance the relative voice of others is wholly
foreign to the First Amendment.” Buckley v. Valeo, 424
U.S. 1, 48 (1976).
Here, Respondent Colangelo did both. Three
possibilities exist regarding the children’s wishes for
14
custody: (1) they wished for their father to have sole
custody; (2) they wished for their mother to have sole
custody; or (3) they wished for joint custody. If the first
possibility was present, the FE was not authorized to
speak for Petitioner and should be precluded from
doing so even if it would be to his tactical advantage.
See, Janus v. AFSCME, 138 S.Ct. at 2463 (“right to
refrain from speaking”). If the children wished for the
second it would enhance the relative voice of
Respondent DiMella-Deem, impermissibly. See,
Buckley v. Valeo, 424 U.S. at 48. If they wished for the
third, it would enhance the relative voice of the
children, nonparties that lack capacity and standing.
Enhancing the relative voice of the children violates
Petitioner’s right to free speech, see, id., as well as his
right to parental relations because there was no finding
that Petitioner was unfit or minimum standards of child
care were not provided. See, e.g., Stanley v. Illinois, 405
U.S. at 657 (“The State’s interest in caring for
[Petitioner]’s children is de minimis if [Petitioner] is
shown to be a fit father.”); Reno v. Flores, 507 U.S. at
304.
III.
COMPELLING A FIT PARENT TO PAY
THE FEES AND EXPENSES OF A COURT
APPOINTED FORENSIC EVALUATOR
VIOLATES THAT FIT PARENT’S RIGHT
TO FREE SPEECH.
Compelling a person to subsidize the speech of
other private speakers raises similar First
Amendment concerns. As Jefferson famously put
it, ‘to compel a man to furnish contributions of
money for the propagation of opinions [of a court
15
or FE] which he disbelieves and abhors is sinful
and tyrannical. []
Because the compelled subsidization of [a]
private [FE’s] speech seriously impinges on
First Amendment rights, it cannot be casually
allowed. Our free speech cases have identified
‘levels of scrutiny’ to be applied in different
contexts.
Janus v. AFSCME, 138 S.Ct. at 2464 (emphasis in
original).
Here,
Respondent
Colangelo
compelled
Petitioner to pay the fees and expenses of the FE. The
matrimonial court had absolutely no basis to compel
Petitioner to pay any of the FE’s fees or expenses,
because Petitioner provided the minimum standards of
child care, see, Reno v. Flores, 507 U.S. at 304, and was
not found to be unfit. See, Stanley v. Illinois, 405 U.S.
at 657. The state cannot meet its burden regardless
which level of scrutiny is used.
IV.
DENYING
A
FIT
PARENT
ALL
CUSTODIAL
DISCOVERY
IN
A
CONTESTED CUSTODY DISPUTE IN
THE NEW YORK STATE SUPREME
COURT APPELLATE DIVISION, SECOND
DEPARTMENT, BUT NOT THE THIRD
OR FOURTH DEPARTMENTS, VIOLATES
THAT FIT PARENT’S RIGHT TO DUE
PROCESS AND EQUAL PROTECTION.
The New York
guaranteed a right to
State Constitution has
“divorce [] by judicial
16
proceedings” since 1846. N.Y. Const., Art. I, §10 (1846);
N.Y. Const., Art. I, §9 (1894); N.Y. Const., Art. I, §9
(1938); N.Y. Const., Art. I, §9 (2015). CPLR §104
provides, “[t]he civil practice law and rules shall be
liberally construed to secure the just, speedy and
inexpensive determination of every civil judicial
proceeding.” Divorce is a civil judicial proceeding.
CPLR §3120 expressly provides for the “discovery and
production of documents and things for inspection,
testing, copying or photographing.” CPLR §3121
expressly provides for “physical or mental
examination” “of a party.”
Litigants in contested custody disputes in the
Second Department are denied the discovery provided
for by the New York State legislature in, inter alia,
CPLR §§3120 and 3121 pursuant to the custom and
practice of the Second Department and NYSUCS.
However, litigants in the Third and Fourth
Departments are afforded full access to, inter alia,
those discovery provisions and the process guaranteed
by the New York State Constitution for 173 years,
“divorce [] by judicial proceedings.”
Because the aforementioned custom and practice
burdens Petitioner’s fundamental liberty interest to the
care, custody and control of his children, his right to
meaningful access to the courts and his right to
meaningful opportunity to be heard, denial of all
custodial discovery violates both the due process and
equal protection clauses. See, e.g., M.L.B. v. S.L.J., 519
U.S. 102, 120 (1996); Boddie v. Connecticut, 401 U.S.
371, 383 (1971) (“Thus, we hold only that a State may
not, consistent with the obligations imposed on it by the
Due Process Clause of the Fourteenth Amendment,
17
preempt the right to dissolve this legal relationship
without affording all citizens access to the means it has
prescribed for doing so.”).
V.
THE CUSTOM AND PRACTICE OF THE
SECOND DEPARTMENT AND NEW
YORK STATE UNIFIED COURT SYSTEM
OF
APPOINTING
FORENSIC
EVALUATORS
TO
CONTROL
ALL
DISCOVERY
IN
ALL
CONTESTED
CUSTODY DISPUTES WILL CONTINUE
WITHOUT INTERVENTION BY THIS
HONORABLE COURT.
In Plovnick v. Klinger, 10 A.D.3d 84, 781
N.Y.S.2d 360 (2d Dep’t 2004), the Second Department
held that New York state courts may compel litigants
with sufficient means to pay the fees and expenses of
court appointed attorneys for the children, referred to
as direct pay or private pay. Id., at 88-90. The same
authority is relied on for appointment of experts,
including FEs. See, Judiciary Law, § 35(4); 22 NYCRR
§ 36.1(a)(4).
The Plovnick court, grounded its decision in
Judiciary Law, § 35(3). However, the Plovnick court
failed to address, let alone distinguish, Judiciary Law, §
35(5), which provides,
All
expenses
for
compensation
and
reimbursement under this section shall be a state
charge to be paid out of funds appropriated to
the administrative office for the courts for that
purpose. [] After such claim is approved by the
court, it shall be certified to the comptroller for
18
payment by the state, out of the funds
appropriated for that purpose.
(emphasis added).
The Third Department has held, “there is no
specific statutory or regulatory scheme for direct
payment of an appointed [FE] by a parent or parents.”
Redder v. Redder, 17 A.D.3d 10, 15, 792 N.Y.S.2d 201
(2005).
On March 21, 2017 and October 18, 2018, the
Chief Judge of New York State, “upon consultation
with the Administrative Board of the Courts, and with
the approval of the Court of Appeals of the State of
New York,” approved direct payment for, inter alia,
attorneys for the child(ren) and FEs through her
rulemaking authority. 22 NYCRR Part 36 (see,
amendments in letter format). There are no caps for
individual cases, only annual caps of $100,000 which if
exceeded precludes them from accepting assignments
the following year. Said caps are waivable by the
appointing court.
On April 7, 2015, Alan D. Scheinkman, then
Chief Judge of the Ninth District, now Presiding
Justice of the Second Department, acknowledged that
assignment of cases can be “relatively random.” Taxes:
No accountability on lawyers for kids, The Journal
News
(Apr.
7,
2015)
(https://www.lohud.com/story/news/
investigations/2015/04/05/law-guardiansaccountability/70861238/). The list is a virtual “Who’s
Who” of the politically connected and court insiders.
19
Judges routinely require the adult parties in
custodial disputes[, residing within some of the
most well-heeled counties in this nation,] to pay
[AFCs and FEs]s out of pocket. But in many
cases, judges determine that the litigants can’t
afford the fees. In some counties, including
Rockland, most of those assignments go to the
Legal Aid Society. In most, including
Westchester, they go to [AFC]s who are
reimbursed by taxpayers. [All private pay cases
go to court appointed private parties.]
Taxes: No accountability on lawyers for kids.
In N.Y.S. Bd. of Elections v. Lopez Torres, this
Court upheld New York State’s system of selecting
judges by political “party bosses.” 552 U.S. 196, 128
S.Ct. 791, 799, 169 L.Ed.2d 665 (2008). Judge
Scheinkman also acknowledged that his wife is
prohibited from accepting direct pay cases. Taxes: No
accountability on lawyers for kids. Yet, his wife, Faith
Miller, was appointed as the first AFC in the
underlying divorce and custody proceeding and family
court proceedings, before her malpractice carrier
compelled her to withdraw.
Clearly, the Second Department and the New
York Court of Appeals refuse to recognize the prior
decisions of this Honorable Court, prior decisions of the
New York Court of Appeals respecting parental rights
to control their own discovery, blackletter provisions of
the New York State Constitution and blackletter state
statutory law. Doing so would not be in the pecuniary
interests of court insiders and the politically connected.
This Honorable Court is the only forum available to fit
20
parents and their children to remove the ilk present in
the New York State Unified Court System. The
petition at bar must be granted.
CONCLUSION
For the foregoing reasons and good cause shown,
Petitioner respectfully requests that this Honorable
Court grant this petition because substantial
constitutional questions are involved.
Respectfully submitted,
Michael A. Deem, Pro Se
26 Keystone Road
Yonkers, NY 10710
914-482-3867
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.