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

No.

14' <?M

IN THE

SUPREME COURT OF THE UNITED STATES

IN THE MATTER OF KENNETH JAMES

ROSSELLINI 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 (PRO S3

636A VAN HOUTEN AVENUE

CLIFTON, NEW JERSEY 07013

(973) 998-8375

FILED

FEB 1S 2024

FICE OFXHE CLERK

I

RECEIVED

FEB 2 7 2024

RECEIVED

FEB ? 7 2074

QUESTIONS PRESENTED

1) Can an attorney can be suspended from the practice

of law in a state attorney ethics proceeding by the state’s

highest court 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, and

the state’s highest court fails to cite any rule, case or legal

basis for the suspension in its order/opinion?

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 ...................

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

REASONS FOR GRANTING WRIT ....

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

i

1

2

2

3

7

10

INDEX TO APPENDICES

APPENDIX A Order of the Supreme Court of New

Jersey, Suspending Kenneth James Rosellini from

the Practice of Law

APPENDIX B Order of the Supreme Court of New

Jersey, Denying Respondent Kenneth James

Rosellini’s Motion for a Stay

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)............. 9

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

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

7

Gibson v. Berryhill, 411 U.S. 564, 577 (1973) . . 10

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

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

9

In re Disciplinary Proceeding Against

Cottingham, 423 P.3d 818, 826 (Wash. 2018). ... 7

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

7-8

2005) (dissenting opinion)

Middlesex Cty. Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 437 (1982)................. 9-10

li

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

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

8

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

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

9

Southwest Airlines Co. v. Texas Intern Airlines,

546 F.2d 84, 95 (5th Cir. 1977)........................... 9

STATUTES AND RULES

28 U.S.C. §2104................

2

10

Rule 10 of the Supreme Court Rules

Following Rules Governing the Courts of the State of

New Jersey

RPC 8.4(d)

1

RPC 3.4(c)

1-5

Rules l-20-3(g)

1-5

Rule 1*20-11

1-5

Rule 1*20* 15(h)

9

CONSTITUION OF THE UNITED STATES

First Amendment...........................................

1-10

Fourteenth Amendment

1-10

in

OPINIONS BELOW

The Order of the Supreme Court of New

Jersey, filed on November 16, 2023, reprinted in the

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

Matter of Kenneth Rosellini an Attorney at Law,

Case No.' 088666. This Ordered that Kenneth James

Rosellini an Attorney at Law be suspended from the

practice of law in the State of New Jersey. In issuing

the order the Supreme Court of the State of New

Jersey cited no rule, case, or legal basis for the

suspension. Petitioner had been previously 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) in the

related ethics proceeding which is currently under

appeal with the United States Supreme Court Case

Number 23-784; for refusing to satisfy sanctions

against him issued in the state family court

proceeding of Doblin v. Doblin. The two page order

of temporary suspension, unsupported by any

opinion or discussion of the facts, or of the applicable

principles of Constitutional Law, or of the Rules of

Ethics Governing the Courts of the State of New

Jersey cited by the New Jersey Office of Attorney

Ethics

[New Jersey Court Rules 1-20-3(g)

Investigation (4) Failure to Cooperate, and 1-20-11

(suspension warranted where attorney “poses a

substantial threat of serious harm to an attorney, a

client or the public”). The Order fails to set forth any

facts or legal opinion because the facts and law do

not support a suspension under the cited rules or

applicable Constitutional principles.

1

The

New

Jersey

Supreme

Court’s

simultaneous denied Kenneth James Rosellini’s

cross-motion for a stay of the motion for suspension

pending Respondent’s appeal to the United States

Supreme Court of the finding of ethics Censure

against Respondent in the underlying matter, which

was also unsupported by any legal opinion or factual

discussion of any kind (the Order of the Supreme

Court of New Jersey, filed on November 16, 2023,

reprinted in the Appendix hereto at Appendix B, pp.

3a).

JURISDICTION

The date on which the Supreme Court of the

State of New Jersey issued its Orders suspending

Kenneth James Rosellini from the practice of law

and denying a stay were filed on November 16, 2023,

a copy of these orders appears at Appendix A and B.

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

2

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

tribunal except for an open refusal based on an

assertion that no valid obligation exists”. The “rules

of a tribunal” Kenneth James 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

over

totaling

were

issued,

sanctions

3

$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

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

4

is exposed, and that what happened to my client

never happens again to any person appearing in the

New Jersey Courts.

Kenneth James Rosellini (who has actively

practiced in New Jersey (admitted in 1998) and New

York (admitted in 1999) state and federal courts,

including bankruptcy courts, federal courts of

appeals, and appeared pro hac vice in jurisdictions

including Wyoming state court and federal district

court in Illinois and South Carolina, without ever

receiving an ethics sanction of any kind) continues to

assert that his conduct is both ethical and

Constitutional, as this matter stems from a New

Jersey Attorney Ethics proceeding brought 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 tribunal except for an

open refusal based on an assertion that no valid

obligation exists”, and Respondent continues to

assert that no valid obligation exists.

The New Jersey Office of Attorney Ethics cited

New Jersey Court Rule l‘20-3(g) Investigation (4)

Failure to Cooperate, but there was no ethics

investigation in which Kenneth James Rosellini was

fading to cooperate. The New Jersey Office of

Attorney Ethics cited New Jersey Court Rule 1*20-11

(suspension warranted where attorney “poses a

substantial threat of serious harm to an attorney, a

client or the public”), yet the allegations are that

Respondent has failed or refused to pay attorney’s

5

fees sanctions of $12,287 stemming a 2016 Order

issued by a Superior Court judge (now under his own

ethics investigation ACJC Complaint - In the Matter

of Gary N. Wilcox. Judge of the Superior Court I NJ

https 7/www. nj courts. gov/pre s s Courts

releases/2023/07/acjc-complaint-matter-of-gary-nwilcox-judge-of-superior-court) denying one motion to

vacate New Jersey Superior Court, Chancery

Division, Family Part Orders, which Respondent

filed pro bono on behalf of his client Linda Doblin

(who died in July of 2022), and there is no legal or

factual basis that the failure or refusal to satisfy a

seven year old attorney’s fees sanction “poses a

substantial threat of serious harm to an attorney, a

client or the public”.

By continuing to refuse or fail to pay the

subject attorney’s fees Petitioner keeps this matter

an active case and controversy under Article III of

the Constitution for the United States of America,

and Petitioner is continuing to assert his

Constitutional rights and a finding of declaratory

judgment on principles of Constitutional law in

United States District Court (currently an amended

complaint for a §1983 action against the attorney

that obtained the subject attorney’s fees sanctions

against the Petitioner, Rosellini v. Wilcox, 2*20-cv20101'MCA'JRA, and in the United States Court of

Appeals for the Third Circuit (Docket No. 22-2610,

Petitioner’s federal action for declaratory relief was

dismissed under the Younger Abstention Doctrine,

and appealed as an immediate appeal under the

collateral order doctrine, and sought to Petition the

6

United States Supreme Court, United States

Supreme Court Case Number 23-784 (Brief of which

is incorporated by reference here).

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. See

7

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

2005) (dissenting opinion) (emphasis added).

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).

8

... 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

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); Hansberry v. Lee, 1940, 311 U.S.

32. 61 S.Ct. 115. 85 L.Ed. 22; cited with approval,

Blonder-Tongue Laboratories v. University ofIllinois

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 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. 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

9

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

improperly applied the rule to bar lower tribunals in

attorney ethics proceedings from applying the United

States Constitution in Petitioner’s case. 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)]

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: February 14, 2024

Respectfully submitted,

7)

KENNETH ROSELLINI, ESQ-

10