Petition for Writ of Certiorari — Kenneth James Rosellini, Petitioner v. New Jersey Office of Attorney Ethics

No.

if! n

IN THE

SUPREME COURT OF THE UNITED STATES

IN THE MATTER OF KENNETH JAMES

ROSELLINI AN ATTORNEY AT LAW

KENNETH JAMES ROSELLINI.- PETITIONER

ON PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF

THE STATE OF NEW JERSEY

KENNETH JAMES ROSELLINI {PROS®

636A VAN HOUTEN AVENUE

CLIFTON, NEW JERSEY 07013

(973) 998-8375

filed

OCT 1 6 2023

QUESTIONS PRESENTED

1) Can an attorney can be sanctioned in an ethics

proceeding for failure to obey the rules of a tribunal when he

is openly asserting that no valid obligation exists, because the

orders are unconstitutional under the First and Fourteenth

Amendments, and were issued when the state court found

Res Judicata as grounds to deny a motion to vacate orders

based upon fraud upon the court, when Res Judicata is not a

valid basis to deny a motion to vacate an order based upon

fraud upon the court, under the Fourteenth Amendment?

2) Can an attorney can be assessed a more severe

ethics sanction for having asserted a civil rights complaint in

federal court against officials of the ethics proceeding, for

declaratory and injunctive relief, based upon assertions of

violations of free speech under the First Amendment and due

process under the Fourteenth Amendment?

3) Can a state’s highest court issue rules prohibiting

lower tribunals in attorney ethics proceedings from

considering whether or not the ethics rules they are enforcing

violate the Constitution for the United States of America?

LIST OF PARTIES

All parties do not appear in the caption of the case on

the cover page. A list of all parties to the proceeding

in the court whose judgment is the subject of this

petition is as follows1. Kenneth Rosellini, Esq., Petitioner.

2. New Jersey Office of Attorney Ethics,

Respondent

TABLE OF CONTENTS

OPINIONS BELOW..................................

JURISDICTION..........................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ....................

1

2

STATEMENT OF THE CASE..................

3

REASONS FOR GRANTING WRIT ....

10

CONCLUSION ...........................................

16

3

INDEX TO APPENDICES

APPENDIX A Order of the Supreme Court of New

Jersey, granting the motion of the Office of Attorney

Ethics for Reconsideration

APPENDIX B Order of the Supreme Court of New

Jersey, OrderING that Kenneth James Rosellini an

Attorney at Law be censured as Attorney Discipline

APPENDIX C Order of the Supreme Court of New

Jersey, Denying the petition of Respondent, Kenneth

James Rosellini, for review of the decision of the

Disciplinary Review Board

APPENDIX D Opinion of the Supreme Court of New

Jersey Disciplinary Review Board recommendING by

a five to four vote that Kenneth James Rosellini

receive a three month suspension from the practice of

law, with the four votes recommending censure.

APPENDIX E Opinion of the DISTRICT XI ETHICS

COMMITTEE, recommending dismissal without prejudice

pending the outcome of the §1983 Constitutional Civil

li

Rights (First Amendment) case of Rosellini v. Wilcox,

et al.,

Docket No2-20-cv-20101-MCA-LDW

(U.S.D.N.J.)

APPENDIX F Dissenting Opinion of the DISTRICT XI

ETHICS COMMITTEE, recommending a higher sanction

of reprimand, solely for the reason Kenneth James

Rosellini was actively prosecuting his civil rights

case and that he should receive the higher sanction

regardless of the outcome of that case.

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Blonder-Tongue Laboratories v. University of

Illinois Foundation, 1971. 402 U.S. 313, 329.

91 S.Ct. 1434. 28 L.Ed.2d 788 (1971).............. 14.

Gentile v. State Bar of Nev., 501 U.S. 1030,

1054, 111 S. Ct. 2720 (1991)..........................

10-11

Gibson v. Berryhill, 411 U.S. 564, 577 (1973) . 15

Hansberry v. Lee, 1940, 311 U.S. 32,

61 S.Ct. 115. 85 L.Ed. 22....................

14

In re Disciplinary Proceeding Against

Cottingham, 423 P.3d 818, 826 (Wash. 2018). . 10

Legal Servs. Corp. v. Velazquez, 531 U.S. 533,

546, 149 L. Ed. 2d 63, 121 S. Ct. 1043 (2001). . 12

Mezibov v. Allen, 411 F.3d 712, 723-26 (6th Cir.

2005) (dissenting opinion)................................... 12

in

Middlesex Cty. Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 437 (1982).................. 15

Root Ref. Co. v. Universal Oil Prod. Co.,

169 F.2d 514, 521-22 (3d Cir. 1948).

13

Shammas v. Shammas, 9 N.J. 321, 330,

88 A.2d 204, 209 (1952)..........................

14

Southwest Airlines Co. v. Texas Intern Airlines,

546 F.2d 84, 95 (5th Cir. 1977)............................. 14

United States v. Gurney, 558 F.2d 1202

1209-10 (5th Cir. 1977).......................

11

STATUTES AND RULES

28 U.S.C. §2104..........................................

3

16

Rule 10 of the Supreme Court Rules

Following Rules Governing the Courts of the State of

New Jersey

RPC 8.4(d)

1-7

RPC 3.4(c)

1-7

Rule 1-4-8

6-7

Rule i:20-15(h)

8-14

CONSTITUION OF THE UNITED STATES

First Amendment

2-12

Fourteenth Amendment

3-14

IV

OPINIONS BELOW

The Order of the Supreme Court of New

Jersey, filed on May 19, 2023, reprinted in the

Appendix hereto at Appendix B, pp. 3a-4a, In the

Matter of Kenneth Rosellini an Attorney at Law,

Case No.- 086980. This Ordered that Kenneth James

Rosellini an Attorney at Law be censured as attorney

discipline for violation of the New Jersey Rules of

Professional Conduct, RPC 3.4(c) (knowingly

disobeying an obligation under the rules of a

tribunal), and RPC 8.4(d) (engaging in conduct

prejudicial to the administration of justice); that he

satisfy sanctions against him issued in the state

family court proceeding of Doblin v. Doblin, and

reimburse the Disciplinary Oversight Committee for

appropriate administrative costs. The Order of the

Supreme Court of New Jersey, filed on May 16, 2023,

reprinted in the Appendix hereto at Appendix B, pp.

5a_6a, In the Matter of Kenneth Rosellini an

Attorney at Law, Case No.' 086980. This Order

denied the petition of Respondent, Kenneth James

Rosellini, for review of the decision of the

Disciplinary Review Board in DRB 21-231 and 21232.

The Order of the Supreme Court of New

Jersey, filed on July 21, 2023, reprinted in the

Appendix hereto at Appendix A, pp. la-2a, In the

Matter of Kenneth Rosellini an Attorney at Law,

Case No.' 086980. This Order granted the motion of

the Office of Attorney Ethics for reconsideration

(rehearing) and ORDERED that Kenneth James

Rossellini [sic] pay the sum of $12,287.50 by certified

check or money order, sent by the U.S. Mail or

1

comparable delivery method to Dr. Michael Doblin

within 45 days of this order.

The Opinion of the Supreme Court of New

Jersey Disciplinary Review Board Docket Nos. DRB

21-231 and 21-232 District Docket No. XT20190005E, April 20, 2022, reprinted in the Appendix

hereto at Appendix D, pp. 6a-67a. This opinion

recommended by a five to four vote that Kenneth

James Rosellini receive a three month suspension

from the practice of law, with the four votes

recommending censure.

The Opinion of the DISTRICT XI ETHICS

COMMITTEE, March 31, 2021, reprinted in the Appendix

hereto at Appendix E, pp. 67a* 100a, with a dissenting

Opinion reprinted in the Appendix hereto as Appendix F,

pp. 101a-107a. By a two to one vote, in this proceeding in

which the presenter sought admonishment against

Kenneth James Rosellini, the majority recommended

dismissal without prejudice pending the outcome of the

§1983 Constitutional Civil Rights (First Amendment)

case of Rosellini v. Wilcox, et al., Docket No: 2:20-cvThe dissenting

20101-MCA-LDW (U.S.D.N.J.).

opinion recommended a higher sanction of

reprimand, solely for the reason Kenneth James

Rosellini was actively prosecuting his civil rights

case and that he should receive the higher sanction

regardless of the outcome of that case.

JURISDICTION

The date on which the Supreme Court of the

State of New Jersey granted reconsideration

(rehearing) filed by the Office of Attorney Ethics was

July 21, 2023, a copy of this order appears at

Appendix A.

2

This matter involves federal questions under

the under the First and Fourteenth Amendments to

the Constitution for the United States of America.

The jurisdiction of this Court is invoked under

28 U.S.C. §2104.

CONSTITUTIONAL, PROVISIONS, STATUTES

AND POLICIES AT ISSUE

First Amendment to the Constitution of the United

States

Congress shall make no law . . . abridging the

freedom of speech....

Fourteenth Amendment to the Constitution of the

United States

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 ....

STATEMENT OF THE CASE

This matter stems from New Jersey Attorney

Ethics proceedings brought against Kenneth James

Rosellini, primarily under New Jersey Rule of

Professional Conduct. 3.4, which states that an

attorney in the State of New Jersey shall not

knowingly “disobey an obligation under the rules of a

3

tribunal except for an open refusal based on an

assertion that no valid obligation exists”. The “rules

of a tribunal” Kenneth Janies Rosellini has disobeyed

are frivolous litigation sanctions orders that were

issued when he filed, pro bono, on behalf of a client, a

motion in New Jersey Superior Court to vacate

family court orders based upon fraud upon the court,

including allegations that there was forged signature

on a settlement agreement, which was not properly

placed upon the record and which went missing from

the record, which had never been litigated

before. That motion was denied based upon Res

Judicata, which as a matter of due process is not a

valid basis to deny a motion to vacate orders based

upon fraud upon the court, and the sanctions were

issued against me on a cross-motion, which is also

not permitted under the court rules. Kenneth James

Rosellini appealed these orders on behalf of his

client, appeals which were denied, and additional

totaling

over

were

issued

sanctions

$14,000. Kenneth James Rosellini openly asserts

that these orders are constitutionally invalid, and

were issued in retaliation for him having raised

issues of fraud upon the court which expose the state

courts’ own wrongdoing.

Kenneth James Rosellini’s client, Linda

Doblin, passed away in August of 2022. She was

denied justice in her lifetime. At the time of the

fraud upon the court, she was a hearing disabled

financially dependent spouse who had obtained a

4

final order of divorce after being subjected to spousal

abuse, with primary custody of her minor child and

with necessary financial support from her ex­

spouse. Due to the ex-spouse’s successful fraud upon

the court and abuse of process, less than three years

after the final arbitrator’s judgment pursuant to the

divorce, my client found herself a) bankrupt, b) with

her child effectively in the sole custody of the spouse,

with one hour a week supervised visitation with her

son, the father enabled to abuse their son’s education

by sending him away to an isolated desert

Scientology indoctrination camp for months at a

time, and c) subjected to malicious criminal

prosecution for interference with custody (which was

dismissed when the subject settlement agreement

came up missing from the court record), when her

son in accordance with the law, time after time

sought refuge with his mother from abuse from the

spouse. Kenneth James Rosellini and the courts

have an obligation to see that the fraud in this case

is exposed, and that what happened to my client

never happens again to any person appearing in the

New Jersey Courts.

When ethics proceedings were brought against

Kenneth James Rosellini seeking a finding of

admonishment, he raised the following legal issues

and filed a federal complaint seeking, inter alia, the

following relief with respect to those issues.

5

Count I seeks declaratory relief under 28

U.S.C. §2201 for the followingA. Declaring as a matter of due process

under the Fourteenth Amendment to the

Constitution for the United States of

America, that state court officers have a

duty and obligation to guard against fraud

upon

the

court

to

ensure

their

constitutional integrity, and that the

doctrine of Res Judicata may not be used as

a legitimate basis under the Fourteenth

Amendment to deny an application to

vacate or void a state court judgment based

upon fraud upon the court; and

B. Declaring as a matter of due process

under the Fourteenth Amendment to the

Constitution for the United States of

America that any state court sanctioning a

litigant, or an attorney appearing before it,

must set forth both the reason for the

sanction and the basis in law upon which

the sanction was issued; and

C. Declaring as a matter of due process

under the Fourteenth Amendment, that

Rule 1-20-15(h) of the Rules Governing the

Courts of the State of New Jersey violates

the due process clause of the Fourteenth

Amendment, both on its face and as applied

to the Plaintiff, because it instructs persons

to take actions regardless of whether those

actions violate the Constitution for the

United States of America; and

6

D. Declaring that Rule 1-4-8 of the Rules

of the Courts of the State of New Jersey

violates the First Amendment and both the

Due Process and Privileges and Immunities

clauses of the Fourteenth Amendment as to

the fundamental rights of free speech and

advocacy of litigants in state courts, so that

it violates the Constitution of the United

States of America both on its face and as

applied to Plaintiff; and

E. Declaring that New Jersey Rule of

Professional Conduct 8.4(d) and Rule of

Professional Conduct 3.4(c) violate the

First Amendment and both the Due

Process and Privileges and Immunities

clauses of the Fourteenth Amendment to

the extent that they infringe upon the

fundamental rights of free speech and

advocacy of litigants in state courts, so that

these rules violate the Constitution of the

United States of America both on their face

and as applied to Plaintiff; and

F.

Declaring that Rule 1-4-8, RPC 8.4(d)

RPC 3.4(c), and any inherent power

possessed by state courts, may not be used

for purposes of intimidation or chilling

fundamental rights under the First

Amendment and both the Due Process and

Privileges and Immunities clauses of the

Fourteenth Amendment so that they

infringe upon the fundamental rights of

7

free speech and advocacy of litigants in

state courts.

Count II of the Complaint sought injunctive

relief for the following'

An injunction enjoining these defendants from

violating the rights of litigants appearing

before the courts of the State of New Jersey,

and abusing the process of law so as to deny

litigants their fundamental rights under the

First Amendment and both the Due Process

and Privileges and Immunities clauses of the

Fourteenth Amendment for their benefit and

to injure persons appearing before the courts

of the State of New Jersey.

[See pp. 13a-17a, 36a-49a, 79a-88a on Res Judicata

and Due Process, pp. 16a-40a, 55a-61a, 81a, 89a, on

First Amendment, pp. 18a, 54a_57a, 107a, on the

Fourteenth Amendment, pp 35a, 54a-55a, on Rule

1*20- 15(h)]

Subsequent to the filing of the federal civil

rights complaint, on March 31, 2021 the District

Ethics Panel issued a 2-1 decision that the

Complaint should be dismissed without prejudice for

Kenneth James Rosellini to pursue the issues raised

in the federal complaint. The public panelist who

refused to recuse himself, issued a dissenting opinion

in clear retaliation for the filing of the federal

8

complaint; in violation of Kenneth James Rosellini’s

First Amendment rights he found [emphasis added]-

.. . in light of the fact that Mr. Rosellini continues to

pursue his quest, and now cites that he is being

denied his right to free speech as guaranteed by the

First and Fourteenth Amendments to the

Constitution, I would now recommend that the

District Review Board consider to issue a reprimand

as a result of this hearing, regardless of the outcome

of his latest Civil Complaint.

Subsequently, the Office of Attorney Ethics

(“OAE”) sought censure, citing with approval the

dissenter’s opinion. When the Disciplinary Review

Board (appellate review from the District Ethics

Panel) found for Suspension, the OAE adopted that

position to the New Jersey Supreme Court. After

Briefing on an Order to Show Cause and Petition for

Review, and Oral Argument, the New Jersey

Supreme Court issued orders denying Petition for

Review, and for Censure, without addressing any of

the constitutional issues raised. On a motion for

reconsideration by the Office of Attorney Ethics, the

Supreme Court then ordered that Kenneth James

Rosellini pay the subject sanctions within 45 days of

the order.

9

REASONS WHY CERTIORARI SHOULD BE

GRANTED

I. First Amendment Rights of Attorneys to Advocate

for their Clients must be Recognized and Settled

An attorney cannot be assessed a more severe

ethics sanction, as the New Jersey Supreme Court

has done, for having advocated for his client

consistent with the First Amendment and having

asserted a civil rights complaint in federal court

against officials of the ethics proceeding, for

declaratory and injunctive relief, based upon

assertions of violations of free speech under the First

Amendment and due process under the Fourteenth

Amendment.

It is true, as Cottingham contends, that

“disciplinary rules governing the legal

profession cannot punish activity protected by

the First Amendment, and [the] First

Amendment protection survives even when

the attorney violates a disciplinary rule he

swore to obey when admitted to the practice of

law.” Gentile v. State Bar of Nev., 501 U.S.

1030, 1054, 111 S. Ct. 2720, 115 L. Ed. 2d 888

(1991).

See In re Disciplinary Proceeding Against

Cottingham, 423 P.3d 818, 826 (Wash. 2018)

(emphasis added). The First Amendment right of

attorneys to advocate for their clients as Petitioner

has done is essential to the judicial process.

While the Supreme Court and others have, on

several occasions, upheld restrictions on

10

courtroom speech, they have done so, not

because First Amendment rights do not exist

in the courtroom, but rather because such

restrictions served to protect a defendant's

constitutional right to a fair trial and to

the

of

the

preserve

dignity

courts. 1 See Gentile v. State Bar of Nevada,

501 U.S. 1030, 1081-82, 115 L. Ed. 2d 888, 111

S. Ct. 2720 (1991) (O'Connor, J., concurring)

("Lawyers are officers of the court and, as

such, may legitimately be subject to ethical

precepts that keep them from engaging in

what otherwise might be constitutionally

protected speech. This does not mean, of

course,

that lawyers forfeit their First

Amendment rights,

only that a less

demanding standard applies.”) (emphasis

added, citation omitted); United States v.

Gurney, 558 F.2d 1202, 1209-10 (5th Cir.

1977)....

The majority also rests its holding

that attorneys have no First Amendment

rights in the courtroom on the belief that

attorneys are simply like "other trial

participants" who have no right "to interrupt a

judicial proceeding with their questions or

musings." Maj. Op. at 5. However, I do not

share the view that an attorney is simply

another trial participant or that an attorney's

filing of motions seeking the dismissal of

11

criminal charges against his or her client is

somehow akin to ’'interruptions” by "jurors,

court reporters, bailiffs, or spectators." Maj.

Op. at 5. An attorney’s primary role is to serve

as his or her client's representative and

advocate in the judicial process, and it is for

this very reason that an attorney's First

Amendment rights in the courtroom must be

zealously guarded. 3 The Supreme Court has

long recognized that parties often need the

assistance of a trained, professional advocate

who will represent their interests throughout

the judicial process.^See Legal Serve. Corp. v.

Velazquez, 531 U.S. 533, 546, 149 L. Ed. 2d

63, 121 S. Ct. 1043 (2001) ....

However, the ability and willingness of

persons to serve as advocates for their clients.

particularly in matters adverse to the

government, will be severely hampered if

persons acting under color of state law are

permitted to retaliate with impunity against

attorneys who exercise their First Amendment

rights on behalf of their clients....

See Mezibov v. Allen, 411 F.3d 712, 723-26 (6th Cir.

2005) (dissenting opinion) (emphasis added).

12

II. Fourteenth Amendment Due Process requires

that a Motion to Vacate a Judgment based upon

Fraud Upon the Court may not be denied under the

Doctrine of Res Judicata

It is unconstitutional for an attorney to be

sanctioned in an ethics proceeding, as the New

Jersey Supreme Court has done, for failure to obey

the rules of a tribunal when he is openly asserting

that no valid obligation exists, because the orders are

unconstitutional under the First and Fourteenth

Amendments, and were issued when the state court

found Res Judicata as grounds to deny a motion to

vacate orders based upon fraud upon the court, when

Res Judicata is not a valid basis to deny a motion to

vacate an order based upon fraud upon the court,

under the Fourteenth Amendment.

Res Judicata, is completely inapplicable to an

application to vacate or void orders based upon fraud

on the court.

[W]hen the controversy has been terminated

by a judgment, its freedom from fraud may

always be the subject of further judicial

inquiry? and the general rule that courts do

not set aside their judgments after the term at

which they rendered has no application.

See Root Ref. Co. v. Universal Oil Prod. Co., 169 F.2d

514, 521-22 (3d Cir. 1948).

... as a matter of policy, a court should be

particularly cautious about making subjective

judgments which aid the conspirators in giving

effect to their fraud and as a practical matter

13

ratify the fraud. See Restatement of

Judgments, Section 121, comment a (1942).

See Shammas v. Shammas, 9 N.J. 321, 330, 88 A.2d

204, 209 (1952). The United States Supreme Court

has declared Res Judicata violative of due process in

other contexts, and should declare it unconstitutional

as a basis to deny a motion to vacate a judgment

based upon fraud upon the court. See Southwest

Airlines Co. v. Texas Intern Airlines, 546 F.2d 84, 95

(5th Cir. 1977) [“Because res judicata denies a nonparty his day in court, the due process clauses

prevent preclusion when the relationship between

the

party

and

non-party

becomes

too

attenuated. Hansberry v. Lee, 1940, 311 U.S. 32, 61

S.Ct. 115. 85 L.Ed. 22; cited with approval, BlonderTongue Laboratories v. University of Illinois

Foundation, 1971,402 U.S. 313. 329,91 S.Ct.

1434. 28 L.Ed.2d 788.”].

III. A State may not Prohibit a Tribunal in an Ethics

Proceeding from Considering a Claim that the Rules

which they are Enforcing Violate Federal

Constitutional Guarantees

As a matter of due process under the

Fourteenth Amendment, Rule l-20-15(h) of the Rules

Governing the Courts of the State of New Jersey

violates the due process clause of the Fourteenth

Amendment, both on its face and as applied to the

Plaintiff, because it instructs persons to take actions

regardless of whether those actions violate the

Constitution for the United States of America. Rule

1-20- 15(h) of the New Jersey Court Rules states in

pertinent part that, “Constitutional challenges to the

14

proceedings raised before the trier of fact shall be

preserved, without Board action, for Supreme Court

consideration as a part of its review of the matter on

the merits

This Rule was reviewed previously by the

United States Supreme Court in Middlesex Cty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 437 (1982) (abstaining under the Younger

doctrine because the attorney-respondent had an

“opportunity to raise and have timely decided by a

competent state tribunal the federal issues involved”

under New Jersey’s Court Rules) (quoting Gibson v.

Berryhill, 411 U.S. 564, 577 (1973)).” The New

Jersey Supreme Court has improperly applied the

rule to bar lower tribunals in attorney ethics

proceedings from applying the United States

Constitution. This was clearly not what the United

States Supreme Court believed was the intent of the

rule when it issues its opinion in Middlesex Cty.

Ethics Comm. v. Garden State Bar Ass’n. [the

petitioner cites “nothing existing at the time the

complaint was brought by the local Committee to

indicate that the members of the Ethics Committee,

the majority of whom are lawyers, would have

refused to consider a claim that the rules which they

were enforcing violated federal constitutional

guarantees. ” Middlesex Ethics Comm. v. Garden

State Bar Assn, 457 U.S. 423, 435 (1982)]

15

CONCLUSION

Based on the foregoing, Petitioner respectfully

submits that this Petition for Writ of Certiorari

should be granted under Rule 10 of the Rules of the

Supreme Court of the United States.

Dated- October 19, 2023

Respectfully submitted,

2

KENNETH ROSELLINI, ESQ.

16

Additional material

from this filing is

available in the

Clerk's Office.