Petition for Writ of Certiorari — Daryll Boyd Jones, Petitioner v. New York, et al.
Supreme Court briefMay 8, 2025
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APPENDIX
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TABLE OF APPENDICES
Page
APPENDIX A — SUMMARY ORDER OF THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, FILED
FEBRUARY 11,2025......................................
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APPENDIX B — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT, FILED
APRIL 4,2025.................................................
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APPENDIX C — MEMORANDUM AND
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK, DATED
MARCH 31,2023 ............................................
10a
APPENDIX D — AMENDED COMPLAINT
FOR VIOLATION OF CIVIL RIGHTS,
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
NEW YORK, FILED DECEMBER 14,2021 ... .27a
APPENDIX E — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED DECEMBER 23,2013........................
51a
APPENDIX F — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED JUNE 16,2024...................................
53a
Table ofAppendices
Page
APPENDIX G — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED OCTOBER 16,2017...........................
,55&
APPENDIX H — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED MARCH 28,2018...............................
57a
APPENDIX I — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED DECEMBER 11,2020......... ..............
59a
APPENDIX J — RELEVANT CONSTITU
TIONAL AND STATUTORY PROVISIONS ... ,61a
APPENDIX K
OTHER RELEVANT
MATERIALS (CIVIL RIGHTS CORP.
V. PESTANA EXCERPTS).............................
65a
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APPENDIX A — SUMMARY ORDER OF THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED FEBRUARY 11, 2025
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
23-689
DARYLL BOYD JONES,
Plaintiff-Appellant,
v.
STATE OF NEW YORK, THE JUDGES OF THE
APPELLATE DIVISION: SECOND DEPARTMENT
OF THE STATE OF NEW YORK,
Defendants-Appellees*
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City
of New York, on the 11th day of February, two thousand
twenty-five.
Present:
SUSAN L. CARNEY,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
* The Clerk of Court is respectfully directed to amend the
caption accordingly.
2a
Appendix A
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Chen, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED AS
MODIFIED.
Appellant Daryll Jones gained admission to the New
York bar in 1993. In 2008, the Appellate Division, Second
Department suspended him from the practice of law for five
years based on eleven charges of professional misconduct.
After his suspension ended in 2013, Jones applied for
reinstatement. But the Second Department denied his
application, finding that Jones did not “demonstrate
the requisite fitness and character to practice law.”
Joint App’x at 125. Jones reapplied unsuccessfully five
more times and the Second Department denied those
applications in 2014, 2015, 2016, 2017, and 2018. In 2020,
the Second Department denied Jones’s most recent
application “with leave to renew upon providing proof
of timely passage of the MPRE . . . and completion of
sufficient CLE credits.” Id. at 129. Jones sued the State
of New York and the judges of the Appellate Division of
the Second Department, claiming that he was unlawfully
denied reinstatement. On March 31, 2023, the district
court held that his claims against the State were barred
by the Eleventh Amendment and that his claims against
the judges were barred by judicial immunity. See Jones
v. New York, No. 21-3776, 2023 U.S. Dist. LEXIS 57005,
2023 WL 2734793 (E.D.N.Y. Mar. 31, 2023).
3a
Appendix A
On appeal, Jones challenges the allegedly “arbitrary
and discriminatory application of New York’s attorney
reinstatement requirements” and “gross procedural
violations of the Second Appellate Division Judges.”
Appellant’s Reply Br. at l.1 Defendants argue that the
Eleventh Amendment bars Jones’s claims against the
State and state-court judges, that the judges enjoy
judicial immunity from claims for injunctive relief, that
the Rooker-Feldman doctrine and collateral estoppel bar
Jones’s claims, and that Jones failed to state a plausible
claim for relief. We assume the parties’ familiarity with
the underlying facts, the procedural history, and the issues
on appeal.
“In considering whether a governmental entity is
entitled to Eleventh Amendment sovereign immunity, we
review the district court’s factual findings for clear error
and its legal conclusions de novo.” Leitner v. Westchester
Cmty. Coll, 779 F.3d 130, 134 (2d Cir. 2015). We also
review de novo a district court’s ruling on a motion
to dismiss based on judicial immunity. See Butcher v.
Wendt, 975 F.3d 236, 241 (2d Cir. 2020); see also Barone
1. In his brief, Jones suggests that the denial of his latest
application with leave to renew “upon providing proof of timely
passage of the MPRE ... and completion of sufficient CLE credits”
was pretext designed to allow the court or its judges to avoid making
a merits decision. Joint App’x at 129. But the text of Section 1240.16 is
clear that an attorney seeking reinstatement “shall” as part of their
application “include ... proof that the respondent has” within “one
year prior to the date the application is filed” successfully completed
the MPRE. See 22 N.Y.C.R.R. § 1240.16(b). Jones’s argument thus
fails.
4a
Appendix A
v. Laws.’ Fund for Client Prot., 2023 U.S. App. LEXIS
3458, 2023 WL 1975783, at *2 (2d Cir. Feb. 14, 2023). “It
is well established that a court is ordinarily obligated to
afford a special solicitude to pro se litigants.” Tracy v.
Freshwater, 623 F.3d 90,101 (2d Cir. 2010). But “a lawyer
representing himself ordinarily receives no such solicitude
at all.” Id. at 102.
“Absent proper Congressional abrogation or State
waiver, the Eleventh Amendment bars a federal court from
hearing suits at law or in equity against a State brought
by citizens of that State or another.” Vega v. Semple, 963
F.3d 259, 281 (2d Cir. 2020). “The immunity recognized
by the Eleventh Amendment extends beyond the states
themselves to state agents and state instrumentalities
that are, effectively, arms of a state.” Woods v. Rondout
Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236
(2d Cir. 2006) (cleaned up). This immunity bars Jones’s
suit against New York State and the Second Department,
which is a state entity. See Gollomp v. Spitzer, 568 F.3d
355,365 (2d Cir. 2009) (“The claims against... the State
of New York, and the Unified Court System... are barred
by the Eleventh Amendment.”).
That leaves the state-court judges. The Eleventh
Amendment “does not preclude suits against state officers
in their official capacity for prospective injunctive relief to
prevent a continuing violation of federal law.” Henrietta
D. v. Bloomberg, 331 F.3d 261, 287 (2d Cir. 2003). But
that exception—the Ex parte Young exception—applies
only if a complaint “(1) alleges an ongoing violation of
federal law; and (2) seeks relief properly characterized
5a
Appendix A
as prospective.” Vega, 963 F.3d at 281; see generally Ex
parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714
(1908). Although Jones claims to seek prospective relief
for ongoing harm, he asks us to reverse the denial of his
reinstatement motions and to expunge his disciplinary
record. Such relief would be retrospective. See T.W. v. N.Y.
State Bd. ofL. Exam’rs, 110 F.4th 71,92-95 (2d Cir. 2024).
Still, we need not decide whether the Ex parte
Young exception applies or reach the parties’ alternative
arguments, because the district court correctly concluded
that the state-court judges are protected by judicial
immunity. “Judges are granted absolute immunity from
liability for acts taken pursuant to their judicial power
and authority.” Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.
1988). Judicial immunity “is overcome in only two sets of
circumstances.” Mireles v. Waco, 502 U.S. 9,11,112 S. Ct.
286,116 L. Ed. 2d 9 (1991). First, when judges engage in
“nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity.” Id. Second, when judges act “in the
complete absence of all jurisdiction.” Id. at 12.
Jones claims that both exceptions apply here. He
argues that the judges exceeded their authority because
the Committee on Character and Fitness is “singularly
authorized” to make character and fitness decisions.
Appellant’s Br. at 12 (emphasis omitted). And he maintains
that the decision to deny reinstatement qualifies as a non
judicial act because “Evaluating an attorney’s compliance
with reinstatement requirements, such as MPRE passage
and CLE credits, is an administrative act.” Appellant’s
Reply Br. at 5. Neither argument has merit.
6a
Appendix A
“Disciplinary proceedings before the New York
Appellate Division are judicial in nature.” Zimmerman
v. Grievance Comm, of Fifth Jud. Dist. of State of N.Y.,
726 F.2d 85,86 (2d Cir. 1984). A state court “alone admits
an applicant to practice before it,” such that the “power
to discipline, like the power to admit an applicant to
membership of the bar, rests exclusively with the court.”
Erdmann v. Stevens, 458 F.2d 1205,1208-09 (2d Cir. 1972).
In finding that Jones failed to satisfy New York State’s
requirements for readmission, the judge defendants
engaged in judicial acts within their jurisdiction. See id.
at 1208 (“Although a state court may perform non-judicial
functions ... its conduct of disciplinary proceedings with
respect to those admitted to practice before it amounts to
a judicial inquiry”). The judges are thus protected against
this claim by absolute judicial immunity.2
* * *
We have considered all of Jones’s remaining arguments
and find them to be without merit. Accordingly, we
AFFIRM the judgment of the district court, except that
the portion dismissing Jones’s claims against the State
2. Section 1983 provides that “injunctive relief shall not be
granted” in an action against a judicial officer in their judicial
capacity “unless . . . declaratory relief was unavailable.” Jones
argues that declaratory relief is “unavailable” to him because the
New York Court of Appeals declined to address the merits of his
state court appeal seeking such relief. In his operative complaint,
however, Jones failed to allege adequately that declaratory relief
was unavailable to him. In light of this failure, absolute immunity
bars his claim for injunctive relief. See Montero v. Travis, 171 F.3d
757, 761 (2d Cir. 1999).
7a
Appendix A
of New York is MODIFIED to reflect that the dismissal
is without prejudice.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
/s/ Catherine O’Hagan Wolfe
8a
APPENDIX B — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT,
FILED APRIL 4, 2025
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
Docket No. 23-689
DARYLL BOYD JONES,
Plaintiff-Appellant,
v.
STATE OF NEW YORK, THE JUDGES OF THE
APPELLATE DIVISION: SECOND DEPARTMENT
OF THE STATE OF NEW YORK,
Defendants-Appellees.
At a Stated Term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 4th day of April, two thousand
twenty-five.
Before:
Susan L. Carney,
Michael H. Park,
William J. Nardini,
Circuit Judge.
9a
Appendix B
ORDER
Appellant, pro se, moves to recall the mandate and
for leave to file a late petition for rehearing.
IT IS HEREBY ORDERED that the motions are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
/s/ Catherine O’Hagan Wolfe
10a
APPENDIX C — MEMORANDUM AND ORDER OF
THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK,
DATED MARCH 31, 2023
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
21-CV-3776 (PKC) (VMS)
DARYLL BOYD JONES,
Plaintiff,
- against -
STATE OF NEW YORK AND THE JUDGES OF
THE APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT OF THE STATE OF NEW YORK,
Defendants.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge:
Plaintiff Daryll Boyd Jones (“Jones”), a suspended
attorney proceeding pro se,1 commenced this action
1. Although Plaintiff is representing himself, as a practicing
lawyer, he is not entitled to the degree of liberality given to non
attorney pro se plaintiffs. Jones v. New York, 2019 U.S. Dist. LEXIS
1120,2019 WL 96244, at *1 (citing Tracy v. Freshwater, 623 F.3d 90,
101-02 (2d Cir. 2010); Othman v. City of New York, No. 13-CV-4771,
2018 U.S. Dist. LEXIS 59967, 2018 WL 1701930, at *4 (E.D.N.Y.
Mar. 31,2018); Heller v. Emanuel, No. 07-CV-1393,2007 U.S. Dist.
LEXIS 98487, 2007 WL 1491081, at *2 (E.D.N.Y. May 21, 2007)
11a
Appendix C
under 42 U.S.C. Section 1983 (“Section 1983”), against
Defendants State of New York (“New York”) and the
Judges of the Appellate Division of the Second Judicial
Department of the State of New York (the “Judges”),
for alleged violations of state and federal law arising
out of Defendants’ denial of his applications and appeals
for readmission to the practice of law. (See Dkts. 1, 10.)2
Defendants jointly move to dismiss Plaintiff’s Amended
Complaint (“Am. Compl.”) under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), contending that
Plaintiff’s action is barred by the Eleventh Amendment,
absolute judicial immunity, the Rooker-Feldman doctrine,
res judicata, and collateral estoppel. (See generally
Defendants’ Motion to Dismiss, Dkt. 25-5.) For the reasons
explained below, the Court grants Defendants’ motion and
dismisses this matter.
(declining to read liberally the pleadings of a disbarred attorney
proceeding pro se)).
2. The Court notes that deep in the body of his Amended
Complaint, Plaintiff describes the judges of the Appellate Division,
First Judicial Department as the “Second Defendant Judges”
(Dkt. 10, at 13), even though he does not name them in the case
caption (id. at 1), does not list them as a defendant in the designated
“Defendant(s)” section of the pro se complaint form (id. at 2), and
does not explicitly state any claims against them even where he does
mention them (“[W]hile the second defendants (1st Judicial Dept) may
not be responsible directly for the actions of the first defendants (2nd
Judicial Dept)” for the violations alleged in this lawsuit, the First
' Judicial Department “admitted [] Plaintiff to practice law” in 1993
and suspended him in 2008 (id. at 13). Plaintiff also never references
the judges of the First Department in any other briefing in this case.
The Court therefore does not consider the First Department judges
as having any role in this case.
\
12a
Appendix C
BACKGROUND
I.
Factual Background
Plaintiff Daryll Boyd Jones was admitted to practice
law in the state of New York on July 26,1993. (Am Compl.,
Dkt. 10, at 13.) On April 1, 2018, Plaintiff was ordered
suspended from the practice of law for five years when
the Second Department’s Appellate Division confirmed
a Special Referee’s decision to sustain 11 charges of
unprofessional conduct initially filed against Plaintiff by
the Grievance Committee for the Second and Eleventh
Judicial Circuits of New York State. See In re Jones, 51
A.D.3d 294, 855 N.Y.S.2d 212 (N.Y. App. Div. 2008).3
Plaintiff’s suspension ended in 2013. (Dkt. 10, at 5).
That year, he took, and passed, the Multistate Professional
Responsibility Examination (“MPRE”), as required by
New York State law. (Id. at 7 (Plaintiff passed MPRE on
April 6, 2013).)4 Between 2013 and 2018, Plaintiff moved
3. The Court takes judicial notice of the existence of the state
court proceeding that resulted in Plaintiff’s suspension. See Glob.
Ntwk. Comms., Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006) (explaining that at the motion to dismiss stage, a court may
take judicial notice of public records, including documents from
another court proceeding, but only to establish the existence of the
opinion—not for the facts asserted therein).
4. A number of documents were appended to Plaintiff’s original
Complaint (Dkt. 1, at ECF 13-49.) Plaintiff later filed an Amended •
Complaint without attaching these documents. (See generally Dkt.
10.) Although on a motion to dismiss the Court is not compelled to
consider documents appended to a complaint, the Court takes judicial
13a
Appendix C
for reinstatement of his New York law license six times,
and was denied each time by the Second Department,
Appellate Division, “without . . . any legal or ethical
reason” being given. (Dkt. 10, at 3-5; Dkt. 1, at ECF5 35.)
On September 8, 2018, the New York Court of Appeals
notice as to one document in particular that is integral to Plaintiff’s
Amended Complaint (even though not re-filed with it): a December 11,
2020 letter from the Second Judicial Department denying Plaintiff’s
motion for reinstatement. (Dkt. 1, at ECF 35.) See Fleurentin v.
New York City Health & Hosps. Corp., 2020 U.S. Dist. LEXIS
908, 2020 WL 42841, at *3 (E.D.N.Y. Jan. 3, 2020) (“A court limits
its consideration to the factual allegations in plaintiff’s amended
complaint, which are accepted as true, to documents attached to the
complaint as an exhibit or incorporated in it by reference, to matters
of which judicial notice may be taken, or to documents either in
plaintiff’s possession or of which plaintiff had knowledge and relied
on in bringing suit.”) (cleaned up) (quoting Faconti v. Potter, 242 F.
App’x 775, 777 (2d Cir. 2007)); L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419, 422 (2d Cir. 2011) (courts may consider “documents
that, although not incorporated by reference, are integral to the
complaint”) (internal quotation marks omitted) (quoting Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004)). “Even where a document is
not incorporated by reference, the court may nevertheless consider
it where the complaint ‘relies heavily upon its terms and effect,’
which renders the document ‘integral’ to the complaint.” Chambers
v. Time Warner, Inc., 282 F.3d 147,153 (2d Cir. 2002). The December
2020 letter, inter alia, lists the dates on which Plaintiff’s first four
motions for reinstatement were previously denied (in 2013, 2015,
2016, and 2017), as well as the dates on which his motions to renew
and re-argue his 2013 and 2017 motions were denied (2014 and 2018,
respectively). (Dkt. 1, at ECF 35.) Plaintiff’s Amended Complaint
clearly “relies heavily upon its terms and effect.”
5. Citations to “ECF” refer to the pagination generated by the
Court’s CM/ECF docketing system and not the document’s internal
pagination.
14a
Appendix C
denied Plaintiff’s appeal of the Appellate Division’s 2017
dismissal, finding that “the order appealed from does not
finally determine the proceeding within the meaning of
the Constitution.” (Dkt. 10 at 5, 9); see also In re Jones,
32 N.Y.3d 944,84 N.Y.S.3d 79,108 N.E.3d 1025 (2018). In
2018, Plaintiff brought an action in this District, pursuant
to 42 U.S.C. § 1983, alleging that “the State of New York
violated his constitutional rights by failing to reinstate
his law license.” Jones v. New York, No. 18-CV-7241
(AMD), 2019 U.S. Dist. LEXIS 1120,2019 WL 96244, at *1
(E.D.N.Y. Jan. 3,2019). The Court (Donnelly, J.) dismissed
Plaintiff’s complaint on grounds that “the State is immune
from suit” under the Eleventh Amendment and “[n]one of
the limited exceptions to state sovereign immunity apply.”
(2019 U.S. Dist. LEXIS 1120, [WL] at *1-2.)
In 2020, Plaintiff reapplied yet again for readmission
to the New York Bar, and in December 2020, Plaintiff’s
application was again denied with leave to renew upon
providing proof of timely passage of the MPRE. (Dkt.
10, at 4; Dkt. 1, at ECF 35 (Second Judicial Department
12/10/20 letter advising Plaintiff that his motion was
“denied with leave to renew upon providing proof of
timely passage of the MPRE, as required by 22 NYCRR
1240.16(b), and completion of sufficient CLE credits in
accordance with 22 NYCRR 691.11(a)”).) Plaintiff again
appealed to the New York Court of Appeals, and just
as in 2018, that Court declined to review the Appellate
Division’s dismissal. (Dkt. 10, at 9.)
15a
Appendix C
II. Procedural History
On July 2, 2021, Plaintiff filed his initial Complaint
alleging that Defendant State of New York had, by virtue
of its repeated denials of his readmission applications,
violated a number of his constitutional rights under 42
U.S.C. § 1983. (See generally Dkt. 1.) On December 14,
2021, Plaintiff filed an Amended Complaint adding the
Judges as Defendants alongside the State of New York;
the Amended Complaint is otherwise virtually identical
to the original. (See generally Dkt. 10). Plaintiff alleges
that Defendants “discriminate[d] against the Plaintiff”
by “den[ying] his application for readmissions without
legal explanation, without reason and just legal cause”
and requiring him to retake the MPRE, “despite Plaintiff
having met all the qualifications for readmission[.]”
(Id. at 10 (emphasis in original).) Plaintiff’s rambling
Amended Complaint seems to argue that Defendants’
actions violated the Equal Protection, Due Process,
Confrontation, and Privileges and Immunities clauses of
the United States Constitution, and he alludes vaguely to
violations of 22 New York Codes, Rules and Regulations
(“NYCRR”) Section 1240.16(b) and the New York State
Constitution. (Id. at 7-8, 10-11.) Plaintiff seeks various
types of monetary and injunctive relief, including
expungement of his disciplinary record, readmission to the
New York State Bar, and an order preventing Defendants
from requiring him to retake the MPRE or otherwise
“undermining Plaintiff’s legal career[.]” (Id. at 13.)
16a
Appendix C
On January 14, 2022, Defendants moved for a pre
motion conference regarding its proposed motion to
dismiss. (Dkt. 14.) The Court denied Defendants’ request
as unnecessary and granted Defendants leave to file a
motion to dismiss Plaintiff’s Amended Complaint. (See
1/21/2022 Order.) On May 16, 2022, Defendants jointly
filed a motion to dismiss Plaintiff’s Amended Complaint
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(,See Dkts. 25-1-5, at 1.) Defendants argue Plaintiff’s claims
are barred by the Eleventh Amendment, absolute judicial
immunity, the Rooker-Feldman doctrine, res judicata, and
collateral estoppel. (Dkt. 25, at 1.)
LEGAL STANDARDS
I.
Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter
jurisdiction under [Federal Rule of Civil Procedure] Rule
12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). “The standard
for reviewing a 12(b)(1) motion to dismiss is essentially
identical to the 12(b)(6) standard,” Allstate Ins. Co. v.
Elzanaty, 916 F. Supp. 2d 273,286 (E.D.N.Y. 2013), except
that “[a] plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence
that it exists[,]” Makarova, 201 F.3d at 113. Furthermore,
“^Jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.” APWU v.
Potter, 343 F.3d 619, 623 (2d Cir. 2003) (cleaned up).
17a
Appendix C
II. Rule 12(b)(6)
To survive a motion to dismiss for failure to state a
claim for relief pursuant to Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678,129 S. Ct. 1937,173
L. Ed. 2d 868 (2009) (quoting BellAtl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); see also Hogan v. Fischer, 738 F.3d 509, 514
(2d Cir. 2013). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678; see
also Hogan, 738 F.3d at 514. “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678; see also Pension
Benefit Guar. Corp. ex rel. St. Vincent Catholic Med.
Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712
F.3d 705, 729-30 (2d Cir. 2013). Determining whether a
complaint states a plausible claim for relief is “a contextspecific task that requires the reviewing court to draw
on its judicial experience and common sensei” Iqbal, 556
U.S. at 679 (citation omitted). In considering a motion to
dismiss for failure to state a claim, courts “may consider
the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated
by reference in the complaint.” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). “[T]he tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Iqbal,
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Appendix C
556 U.S.' at 678; see also Pension Benefit Guar. Corp.,
712 F.3d at 717 (“Although for the purposes of a motion to
dismiss we must take all of the factual allegations in the
complaint as true, we are not bound to accept as true a
legal conclusion couched as a factual allegation.” (internal
quotation marks and citation omitted)). “While legal
conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Pension
Benefit Guar. Corp., 712 F.3d at 717 (quoting Iqbal, 556
U.S. at 679).
DISCUSSION
I.
Sovereign Immunity
Defendants argue that Plaintiff lacks subject-matter
jurisdiction over all Defendants because the Eleventh
Amendment of the United States Constitution grants them
sovereign immunity from Plaintiff’s claims. (Dkt. 25-5, at
ECF15-21.) Plaintiff contends that none of the Defendants
are covered by sovereign immunity. (Dkt. 25-9, at ECF 1219.) Although his wide-ranging opposition brief traverses
a broad array of authorities and arguments that are
sometimes difficult to follow, Plaintiff’s most responsive
rebuttal is that Defendants are suable under the exception
to sovereign immunity created by Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), because he
seeks “prospective, injunctive relief from violations of
federal law.” (Dkt. 25-9, ECF 3 (citing In re Deposit Ins.
Agency, 482 F.3d 612, 617 (2d Cir. 2007).) Defendants
argue that Ex parte Young does not undermine sovereign
immunity here because Plaintiff’s allegations as to the
19a
Appendix C
Judges seek to address past conduct (i.e., overturning
Plaintiff’s past reinstatement application denials and
expunging his disciplinary history) and violations of state
law. (Dkt. 25-5, at ECF 19-21; Dkt. 25-6, at ECF 16-17.)
A. Legal Standard
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.”
U.S. Const, amend. XI. “Although not clear from the terms
of the [Eleventh] [A]mendment, the Supreme Court has
interpreted this language to bar suit against a state by
its own citizens.” Islander E. Pipeline Co., LLC. v. Conn.
Dep’t ofEnv’l Prot., 482 F.3d 79,88-89 (2d Cir. 2006); see
also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54,
116 S. Ct. 1114, 134 L. Ed. 2d 252(1996) (citing Hans v.
Louisiana, 134 U.S. 1,10 S. Ct. 504,33 L. Ed. 842 (1890)).
Under the well-known exception to this rule first set forth
in Ex parte Young, however, “a plaintiff may sue a state
official acting in his official capacity ... for prospective,
injunctive relief from violations of federal law.” State
Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71,95
(2d Cir. 2007) (quoting In re Deposit Ins. Agency, 482 F.3d
at 617). However, the exception established in Ex parte
Young “has no application in suits against the States and
their agencies, which are barred regardless of the relief
sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139,146,113 S. Ct. 684,121 L. Ed. 2d 605
(1993) (citation omitted).
20a
Appendix C
B. Analysis
Plaintiffs prospective claims against the State of New
York must be dismissed “because they do not conform to
the requirement, established in Ex parte Young, that a
plaintiff seeking prospective or injunctive[] relief from the
state must name as defendant a state official rather than
the state itself or a state agency.” Loren v. State of New
York, No. 94-7890,1995 U.S. App. LEXIS 39949,1995 WL
763009, 402 (2d Cir. 1995). Defendant State of New York
therefore is immune from all claims alleged by Plaintiff,
and is dismissed from this action. Because the Appellate
Division is a state agency, Defendant Second Judicial
Department too is immune from suit and is dismissed from
this action. See M.M. v. N.Y. State Ct. ofAppeals, No. 212924,2022 U.S. App. LEXIS 13400,2022 WL 1565694, at
*2 (2d. Cir. May 18,2022) (upholding dismissal of plaintiffs
complaint alleging misconduct against various New York
State judicial entities who disciplined him for attorney
misconduct) (citing Loren, 1995 U.S. App. LEXIS 39949,
1995 WL 763009, at *1 and Napolitano v. Saltzman, 315
F. App’x 351, 351 (2d Cir. 2009)).
There remains a question, however, as to whether
sovereign immunity applies to the Judges, whom Plaintiff
names individually and accuses of committing ongoing
violations of federal law. Plaintiff cites State Employees
Bargaining Agent Coalition v. Rowland, 494 F.3d at 96,
for the proposition that his reinstatement as a lawyer
satisfies the “ongoing violation of federal law” requirement
for relief from sovereign immunity under Ex parte Young.
(Dkt. 25-9, at ECF 15-17). Indeed, the Second Circuit in
Rowland found that in “[ejvery Circuit to have considered
21a
Appendix C
the issue, including our own... claims for reinstatement to
previous employment satisfy the Ex parte Young exception
to the Eleventh Amendment’s sovereign immunity bar.”
Rowland, 494 F.3d at 96 (collecting cases); see also
Zeigler v. New York, 948 F. Supp. 2d 271, 282 (N.D.N.Y.
2013) (allowing claims for prospective injunctive relief
against individual judge defendant to survive sovereign
immunity summary judgment motion, subject to finding
of no judicial immunity). Notwithstanding the fact that
Rowland and the cases it cites involved alleged ongoing
violations of the right to employment by the state (rather
than a professional license) as well as other potential
distinguishing factors, more recent precedent challenges
the notion that Ex parte Young exempts individual
state court judges from sovereign immunity. See Whole
Woman’s Health v. Jackson, 142 S. Ct. 522, 531-34, 211
L. Ed. 2d 316 (2021); see also M.M. v. N.Y. State Ct. of
Appeals, 2022 U.S. App. LEXIS 13400,2022 WL1565694,
at *2 (“Indeed, the Supreme Court has recently reaffirmed
that a[n] [Ex Parte] Young suit may not be brought even
against individual state-court officials such as judges
and clerks[.]”) (emphasis in original). However, because,
as discussed below, Plaintiff’s claims against the Judges
are barred by judicial immunity, the Court need not, and
declines to, decide whether sovereign immunity applies
to the Judges.
II. Judicial Immunity
Defendants argue that the Judges are shielded by
absolute judicial immunity against Plaintiff’s claims,
which they say involve the quintessentially judicial acts of
“rendering determinations on [Plaintiff’s] suspension and
22a
Appendix C
denying reinstatement^.]” (Dkt. 25-5, at ECF 22.) They
argue that the Appellate Division is granted jurisdiction
over attorney disciplinary matters by both Article VI
of the State Constitution and multiple state laws, and
that courts “have routinely dismissed actions against
judges who were sued for their involvement in attorney
disciplinary proceedings.” (Id. at 22-23.) Plaintiff responds
that Defendants acted outside their jurisdiction in various
ways that disqualify them for judicial immunity, all
revolving around the theme that the Judges improperly
exercised their discretion to deny his applications for
readmission. (Dkt. 25-9, at ECF 20-26.)6
A. Legal Standard
“Judges are granted absolute immunity from liability
for acts taken pursuant to their judicial power and
authority.” Caruso v. Zugibe, 646 F. App’x 101, 105 (2d
Cir. 2016) (quoting Oliva v. Heller, 839 F.2d 37,39 (2d Cir.
1988). “A judge defending against a section 1983 action
is entitled to absolute judicial immunity from damages
liability for acts performed in his [or her] judicial capacity.”
6. Plaintiffs arguments are difficult for the Court to follow.
He alleges, inter alia, that the delegation of responsibility for
disciplinary proceedings from the Court of Appeals to the Appellate
Divisions is unconstitutional; that the Second Department Judges
have invented rules to deny him readmission, including that he retake
the MPRE even though he has “met all the requirements”; that his
“perfected application” has been denied based on an “unauthorized
used [sic] of judicial discretion”; and that the Appellate Division’s
denials “without offering a reasoned decision” are “tantamount
to legislating” and “as insidious as and [sic] unauthorized rule”
(emphasis in original). (Dkt. 25-9, at ECF 20-26.)
23a
Appendix C
Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir. 1983)
(internal citations omitted). Further, 42 U.S.C. Section
1983 bars injunctive relief against judicial officers “unless
a declaratory decree was violated or declaratory relief
was unavailable.” 42 U.S.C. § 1983; see also Hahn v. New
York, 825 F. App’x 53, 54-55 (2d Cir. 2020). “Therefore,
a judge is immune from all forms of suit unless he has
acted either beyond the judge’s judicial capacity, or in the
complete absence of all jurisdiction.” Bracci v. Becker,
•No.ll-CV-1473 (MAD) (RFT), 2013 U.S. Dist. LEXIS
3224, 2013 WL 123810, at *5 (E.D.N.Y. Jan. 9, 2013)
(cleaned up) (ultimately quotingMireles v. Waco, 502 U.S.
9,11,112 S. Ct. 286,116 L. Ed. 2d 9 (1991)).
“In determining whether an act by a judge is ‘judicial,’
thereby warranting absolute immunity, [courts] are to
take a functional approach,” considering “whether [an act
by a judge] is a function normally performed by a judge,”
and whether the parties “dealt with the judge in his [or
her] judicial capacity.” Bliven v. Hunt, 579 F.3d 204,20910 (2d Cir. 2009) (cleaned up).
B. Analysis
All of Plaintiff’s theories as to how the Judges of the
Second Department, Appellate Division acted outside of
their jurisdiction in adjudicating his reinstatement claims
are foreclosed by New York state law and well-settled
precedent, both of which make clear that the Judges are
entitled to absolute immunity in this case. See generally
N.Y. Jud. Law § 90(2); NY. Comp. Codes R. & Regs. tit. 22
§ 691.4. “New York law grants the Appellate Divisions and
24a
Appendix C
the Court of Appeals jurisdiction over matters of attorney
discipline^]” McNamara v. Kaye, No. 06-CV-5169 (DLI)
(CLP), 2008 U.S. Dist. LEXIS 62568,2008 WL 3836024,
at *7 (E.D.N.Y. Aug. 13, 2008) (finding the “disciplinary
proceedings such as those that are the subject of this
litigation are ‘judicial acts’”) (citing Zimmerman v.
Grievance Comm, of Fifth Jud. Dist. of State of N.Y.,
726 F.2d 85, 86 (2d Cir. 1984) (“Disciplinary proceedings
before the New York Appellate Division are judicial in
nature[.]”)). Clearly, determining whether attorneys
have satisfied the applicable legal requirements—such as
passing the MPRE or obtaining sufficient CLE credit—
when they apply for re-admission to the state’s bar or for
relief from disciplinary suspension, falls squarely within
this jurisdiction. (See Dkt. 1, at ECF 35 (Second Judicial
Department 12/10/20 letter advising Plaintiff that his
motion was “denied with leave to renew upon providing
proof of timely passage of the MPRE, as required by 22
NYCRR 1240.16(b), and completion of sufficient CLE
credits in accordance with 22 NYCRR 691.11(a).”); N.Y.
Comp. Codes R. & Regs. tit. 22 § 1240.16(b) (requiring
successful completion of the MPRE within one year of
the date of the application).
Accordingly, the Judges of the Second Department
are protected by absolute judicial immunity from all of
Plaintiff’s claims in this case, which are dismissed.
III. Defendants’ Other Arguments
As Plaintiff’s claims have been dismissed against
all Defendants for lack of subject-matter jurisdiction,
the Court declines to consider the merits of Defendants’
25a
Appendix C
arguments that Plaintiff’s claims are barred by the
Rooker-Feldman doctrine, res judicata, and collateral
estoppel. (Dkt. 25-5, at ECF 24-32.) The Court also
declines to consider Defendants’ argument, advanced in
their Reply, that Plaintiff’s claims fail as insufficiently
plead under Rule 12(b)(6). (Dkt. 25-6, at ECF 7-12.)
IV. Leave to Amend
Whereas ordinarily the Court would allow Plaintiff
an opportunity to amend his complaint, see Cruz v.
Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000), it declines to
do so here, where it is clear from Plaintiff’s submission
that he cannot establish a basis for this Court’s subject
matter jurisdiction. Therefore, any attempt to amend
the complaint would be futile. See Ashmore v. Prus, 510
Fed. Appx. 47,49 (2d Cir. 2013) (finding leave to amend is
futile where barriers to relief cannot be surmounted by
reframing the complaint); see also Cuoco v. Moritsugu,
222 F.3d 99,112 (2d Cir. 2000) (denying leave to amend a
pro se complaint where amendment would be futile); Eley
v. N.Y.C. Transit Auth., No. 14-CV-6886 (PKC), 2014 U.S.
Dist. LEXIS 170988, 2014 WL 6983452, at *2 (E.D.N.Y.
Dec. 10, 2014).
CONCLUSION
For the reasons explained above, Defendant’s motion
to dismiss is granted, and all of Plaintiff’s claims are
dismissed with prejudice and without leave to amend. The
Clerk of Court is respectfully directed to enter judgment
accordingly.
26a
Appendix C
SO ORDERED.
Is/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 31,2023
Brooklyn, New York
27a
APPENDIX D — AMENDED COMPLAINT FOR
VIOLATION OF CIVIL RIGHTS, UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK, FILED DECEMBER 14, 2021
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
Amended
Complaint for Violation of Civil Rights
(Non-Prisoner Complaint)
Case No. 1-21-CV-03776-PKC-VMS
(to befitted in by the Clerk’s Office)
Jury Trial: [HI Yes □ No
(check one)
DARYLL JONES
(Write the full name of each plaintiff who is filing this
complaint. If the names of all the plaintiffs cannot fit
in the space above, please write “see attached” in the
space and attach an additional page with the full list
of names.)
-againstTHE STATE OF NEW YORK
AND
THE JUDGES OF THE APPELLATE DIVISION:
SECOND JUDICIAL DEPARTMENT OF THE
STATE OF NEW YORK
28a
Appendix D
(Write the full name of each defendant who is being
sued. If the names of all the defendants cannot fit in the
space above, please write “see attached” in the space and
attach an additional page with the full list of names.
Do not include addresses here.)
NOTICE
Federal Rules of Civil Procedure 5.2 addresses the
privacy and security concerns resulting from public
access to electronic court files. Under this rule, papers
filed with the court should not contain: an individual’s
full social security number or full birth date; the full
name of a person known to be a minor; or a complete
financial account number. A filing may include only: the
last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four
digits of a financial account number.
Plaintiff need not send exhibits, affidavits, grievance or
witness statements, or any other materials to the Clerk’s
Office with this complaint.
In order for your complaint to be filed, it must be
accompanied by the filing fee or an application to proceed
in forma pauperis.
29a
Appendix D
I. The Parties to This Complaint
A. The Plaintiff(s)
Provide the information below for each plaintiff
named in the complaint. Attach additional pages
if needed.
Name
Street Address
City and County
State and Zip Code
Telephone Number
E-mail Address
Daryll Jones
133-21 Francis Lewis
Blvd.
Laurelton
New York 11413
347-924-4661
dbjoneslaw@aol.com
B. The Defendant(s)
Provide the information below for each defendant
named in the complaint, whether the defendant
is an individual, a government agency, an
organization, or a corporation. For an individual
defendant, include the person’s job or title (if
known) and check whether you are bringing
this complaint against them in their individual
capacity or official capacity, or both. Attach
additional pages if needed.
30a
Appendix D
Defendant No. 1
Name
Street Address
City and County
Telephone Number
E-mail Address(if known)
STATE OF NEW YORK
28 Liberty Street
New York, N.Y., 10005
212-416-6009
James.cooney@ag.ny.gov
Defendant No. 2
JUDGES OF THE
APPELLATE DIVISION:
SECOND JUDICIAL
DEPARTMENT OF THE
STATE OF NEW YORK
Street Address
45 Monroe Place
City and County
Brooklyn N.Y., 11201
Telephone Number 718-722-6308
Name
II. Basis for Jurisdiction
Under 42 U.S.C. § 1983, you may sue state or local
officials for the “deprivation of any rights, privileges,
or immunities secured by the Constitution and [federal
laws].” Under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
you may sue federal officials for the violation of certain
constitutional rights.
31a
Appendix D
A. Are you bringing suit against {check all that apply):
m State or local officials (a § 1983 claim)
□ Federal officials (a Bivens claim)
B. Section 1983 allows claims alleging the “deprivation
of any rights, privileges, or immunities secured by
the Constitution and [federal laws].” 42 U.S.C. § 1983.
If you are suing under section 1983, what federal
constitutional or statutory rights) do you claim is/are
being violated by state or local officials?
THIS IS A CLAIM FOR VIOLATIONS BY STATE
OFFICIALS WHO HAVE UNLAWFULLY DENIED
PLAINTIFF’S READMISSION TO THE STATE BAR
OF NEW YORK BY CHANGING THE STANDARD FOR
READMISSION AND REQUIRING THE PLAINTIFF
TO RE-TAKE THE MPRE WITHOUT ANY EXPRESS
LEGAL AUTHORITY REQUIRING IT. AS SUCH THE
PLAINTIFF HAS SUFFERED A DENIAL OF HIS
RIGHT TO SUBSTANTIVE DUE PROCESS OF LAW,
AND EQUAL PROTECTION UNDER THE LAW IN
THAT THE PLAINTIFF IS BEING REQUIRED TO
RE-TAKE THE MPRE BEFORE HIS APPLICATION
IS RECONSIDERED EVEN THOUGH THE EXAM
WAS SUCCESSFULLY TAKEN IN PREVIOUS
APPLICATIONS. BUT BECAUSE THE DEFENDANT
ARBITRARILY DENIED PLAINTIFF’S PREVIOUS
SIX APPLICATIONS FOR RE ADMISSION WITHOUT
ANY CAUSE AND WITHOUT DUE PROCESS,
HE IS NOW BEING FORCED TO RE-TAKE THE
EXAM WITHOUT ANY ASSURANCE HE WILL
BE READMITTED THEREAFTER. THE RULE
32a
Appendix D
REQUIRING THE PASSING OF THE EXAM
PRIOR TO READMISSION DOES NOT MAKE
THIS SECOND TAKING A REQUIREMENT AND
IS BEING IMPOSED PRE-TEXTUALLY AND
PUNITIVELY BY THE DEFENDANT HEREIN
AND CONSTITUTES A DIFFERENT AND/OR
ADDITIONAL REQUIREMENT BEING IMPOSED
UPON THE PLAINTIFF HEREIN IN DIRECT
VIOLATION OF THE EQUAL PROTECTION CLAUSE.
(SEE ATTACHMENT EXHIBIT 1)
C. Plaintiffs suing under Bivens may only recover for
the violation of certain constitutional rights. If you
are suing under Bivens, what constitutional right(s)
do you claim is/are being violated by federal officials?
N/A
D. Section 1983 allows defendants to be found liable only
when they have acted “under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia.” 42 U.S.C.
§ 1983. If you are suing under section 1983, explain
how each defendant acted under color of state or local
law. If you are suing under Bivens, explain how each
defendant acted under color of federal law. Attach
additional pages if needed.
THE JUDGES OF THE APPELLATE DIVISION
SECOND DEPARTMENT ACTING BOTH
INDIVIDUALLY AND SEVERALLY HAVE DENIED
PLAINTIFF’S APPLICATION FOR READMISSION
TO THE BAR SIX CONSECUTIVE TIMES IN
33a
Appendix D
PREVIOUS YEARS WITHOUT GIVING ANY LEGAL
OR ETHICAL REASON FOR THEIR DECISIONS.
PLAINTIFF’S APPEAL TO THE COURT OF
APPEALS WAS FIRST DENIED IN SEPTEMBER 2018,
ON THE GROUNDS THAT THE DECISION OF THE
LOWER COURT WAS “NOT FINAL”, AND WITHOUT
ADDRESSING ANY OF THE CONSTITUTIONAL
ARGUMENTS MADE IN THAT APPEAL. UPON
THE PLAINTIFF’S SIXTH APPLICATION FOR
READMISSION IN 2020, DEFENDANT DECLINED
TO HEAR THE APPLICATION CLAIMING THAT
THE DEFENDANT MUST RETAKE THE MPRE
EXAM AGAIN; THE SECOND RETAKING OF
WHICH IS NOT EXPRESSLY REQUIRED UNDER
THE RULES AND WHICH HAS ONLY BECOME
AN ISSUE BECAUSE OF THE DEFENDANT’S
PREVIOUS ARBITRARY AND CAPRICIOUS USE OF
JUDICIAL DISCRETION IN DENYING
THE PLAINTIFF’S OTHERWISE PERFECTED
APPLICATIONS FOR READMISSION. THE
REQUIREMENT THE THAT PLAINTIFF RETAKE
THE MPRE EXAM IS THUS A PROSCRIBED
PRETEXT TO DISCRIMINATE AND AN ILLEGAL
INTERPOSITION OF THE INITIAL RE-ADMISSION
REQUIREMENT IMPOSED BY THE DEFENDANT
TO NULLIFY THE PLAINTIFF’S OTHERWISE
MERITORIOUS APPLICATION AND TO CLOAK
THE DEFENDANT’S ILLEGAL AND NEFARIOUS
DISCRIMINATORY INTENT. THE PLAINTIFF’S
APPEAL TO THE COURT OF APPEALS IN 2021
34a
Appendix D
PROVED THERE IS ABONAFIDE CONSTITUTIONAL
CLAIM, BUT THE HIGH COURT NEVERTHELESS
IN THEIR MARCH 25, 2021 DECISION, DECLINED
TO DECIDE THE ISSUE LEAVING THE PLAINTIFF
NO OTHER RECOURSE BUT TO SEEK JUSTICE IN
THIS FORUM.
Discussion
The Interposition of an initial re-admission requirement
is really the imposition of different and additional
requirements for reinstatement which is not a judicial
function but a legislative function and therefore violative
of the Equal Protection Clause. The Plaintiff met all
the requirements for readmission since 2013 when his
suspension was over. Yet Eight (8) years later, the
Plaintiff has still not been reinstated despite 6 separate
applications to the lower court, who have given NO legal
reasons for their denial of reinstatement, evidencing
arbitrary and capriciousness on the part of the judicial
officers, and obvious blackballing of the Plaintiff.
The latest decision requires the Plaintiff to retake
the MPRE examine when the rules only require that
the Plaintiff take the exam once following suspension
which was done see attached (Exhibit A). In a perfect
judicial world, the Plaintiff should have been reinstate
in 2013 when he first applied for readmission and met all
the requirements for the same. However the Appellate
Division denied Plaintiff’s application WITHOUT CAUSE
AND WITHOUT LEGAL REASON IN 2013. Plaintiffs
three subsequent blanket denials for readmission by the
35a
Appendix D
Defendants were followed by an appeal of those decisions
to the Court of Appeals on September 6, 2018 (But the
plaintiff was denied the relief he sought as the high
court found the decisions of the lower court to be “NonFinal” even though the lower court’s denials articulated
no legal reason for their decisions and set the stage for
the perpetual punishment of the Plaintiff. (See attached
Exhibit B.)
The Plaintiffs next three applications were submitted
with all the same credentials and were likewise DENIED
WITHOUT CAUSE OR STATED REASON. Now upon
the Plaintiffs 7th attempt to be reinstated, the Defendants
required the Plaintiff to RETAKE the MPRE exam
even though there is no legislative requirement or case
precedent that requires Plaintiff to take the examine
more than once following readmission to the bar. Their
decision on this point is final, to the extent the Plaintiff
can go no further without a ruling by this court if the
lower court’s decision is lawful and ethical, considering the
arbitrary history of this case. However when the Plaintiff
appealed the final decision to the high court, they declined
to decide the matter claiming there is “no substantial
[constitutional] issue raised” by the Plaintiff, thereby
further dooming the Plaintiff to perpetual punishment.
1. Direct Constitutional Question Under Under 42
U.S.C. § 1983:
If this court reads all of the lower court rulings
together the only logical conclusion would be that this
Plaintiff is doomed take the MPRE an indefinite number
36a
Appendix D
of times while the Defendants enjoy the tyrannically
unfettered discretion of denying Plaintiff’s application
indefinitely for any reason or NO reason, WITH OR
WITHOUT A CURRENT MPRE EXAM RESULT. This
arbitrariness and capriciousness violates the Plaintiff’s
constitutionally protected rights to Due Process and
Equal Protection. The State through their agents, have
created a new, different or additional rule for the Plaintiff
in requiring him to retake the MPRE, when the exams
results he acquired were only made stale because of the
Defendants actively blackballing of him through the
use of their discretionary power in denying his earlier
perfected application.”
If the Federal Court does not intervene here, the
Plaintiff would be required to retake the examination
again, and again and again, only to have his application
denied again and again without cause by the Defendant as
it has done seven (7) times in the past. Effectively there
could be no end to the Plaintiff’s perpetual punishment
as there would never be finality to the reinstatement
process and no “substantial constitutional issue” for the
high Court of Appeals to rule on.
2. Rule 22 NYCRR 1240
In this case the requirements for reinstatement
following suspension were never intended by the
legislature to be fraught with such abuses of discretion
where the court choses to blackball certain attorneys
and deny their right to practice law WITHOUT ANY
CAUSE. Yet this is exactly what has occurred here. If
the Plaintiff were judged fairly and not being blackballed
37a
Appendix D
he would have been re-admitted in 2013 when his first
application for readmission was submitted. However, the
lower court denied this application and the following five
applications WITHOUT STATING A SINGLE REASON
FOR THEIR DECISION.
In their latest decision they declined to decide
Plaintiff’s motion for re-admission until he retakes the
MPRE exam. However, the ONLY reason Plaintiff’s
MPRE examine results are stale dated is because of
the Defendant’s abuse of discretion, arbitrariness and
capriciousness. The State legislature never anticipated or
legislated that the Defendant would be able to set aside
all twenty five of the Plaintiff’s character references,
and discount all of the other legal requirements for
readmission and allow the Defendant to substitute their
own individual assessment of the Plaintiff’s character
and fitness to practice law1. A power to deny Plaintiff a
property right without a standard by which to measure
the proper use of that power will, as it has here, lead to
abuse and violations of the Due Process Clause of our
constitution.
Thus the High court failed to decide not only if the
lower court acted judiciously in denying the Plaintiff’s past
applications for admission; but also the novel constitutional
1. Plaintiff submitted more than 25 personal references from
doctors, lawyers, police officers, former judges, clergy, former
clients and others attesting to the Plaintiffs character and fitness.
The Plaintiffs applications for readmission was never opposed
by either the Grievance Committee or the New York Lawyers
Fund for Client Protections, who were party to each and every
application.
38a
Appendix D
issues of whether the imposition of the NEW requirement
of the Plaintiff to retake the MPRE is consistent with
the rule 22 NYCRR 1240 and the legislative intent of the
framers of that rule.
3.
Meritorious Constitutional claim:
There is no doubt the Plaintiff took and passed the
MPRE on April 6,2013, (see attached A). There is no doubt
that the lower court has made the RETAKING of the exam
the only reason for refusing to hear the application for
reinstatement. However, if that is the [only] valid reason,
why did the same lower court permit the application to
be heard in the last five times the Plaintiff applied for
readmission? In other words, why did the clerk of court in
the Appellate Division accept Plaintiff’s application for the
reinstatement five times in a row, WITHOUT objection to
the stale dated MPRE examine results? If it were not an
issue in any of the previous submissions, why is it an issue
now? It is obvious that it was not an issue in the last five
filings because there was and is no merit to the Court’s
objection the stale dated MPRE and the interposition of
this requirement is but a pretext to further discriminate
against the Plaintiff.
The Plaintiff has met all the filing requirements and
has complied with both spirit and letter of 22 NYCRR
sec. 1240.i6[a]. Its is only because the lower court has
been given such broad and sweeping discretionary power
by the High Court in this area which empowers them to
deny attorney’s readmission application for any reason
or no reason, that the Plaintiff is in this novel situation,
39a
Appendix D
pleading for readmission upon an otherwise meritorious
application.
4. State Constitutional Claims:
The denial of the Plaintiff’s application on these
grounds raises clear constitutional claims too numerous
to go into detail here. Suffice to say that the United States
Supreme Court has held in Matthew v. Eldrig 424 U. S. 319
that the State cannot set standards for due process that are
more difficult than the Federal Constitutional standards.
Similarly in Schware v. Board of Bar Examiners, 353
U.S. 232 (1957), the court held that the State cannot
exclude an applicant when there is no basis for their
finding that he fails to meet these State standards, or
when their action is invidiously discriminatory. P. 353
U. S. 239 The constitution requires certain fundamental
attributes of Due Process in this area of which the right to
notice of the charges and opportunity to call and examine
witnesses. The lower court’s unfettered discretion affords
them the power to take away basic constitutionally
protected rights and make adverse decisions affecting
the Plaintiff’s right to practice law, without disclosing any
reason for their decision and without affording him any
opportunity to challenge their reasoning.
In 2013 Plaintiff had met all the State standards for re
admission, but was denied by the defendants for no legal or .
ethical reason. Plaintiff’s 2020 application has also met all
the state standards for admission, but for the Defendant’s
requirement that he re-take and exam already taken,
the interposition of which is not expressly required by
40a
Appendix D
the code requiring it. As such the defendant has failed to
extend Equal Protection of Law to the Plaintiff by raising
the standard for reinstatement announced in court rule
22 NYCRR sec. 1240.16[a] and requiring a second set of
exam results following several pervious and meritorious
applications for admission which were denied by the court
without any judicial or factual reasons.
The lower court violates Federal constitutional
requirements of Equal Protection in that the State has
not complied with it’s own court holding in the cases of
Matter ofAnonymous (97 NY2d 332) and Matter of Citrin
(94 NY2d 459), wherein the Court of Appeals held that the
papers relied upon by the Appellate Division in denying
an application for admission or reinstatement should be
made available to the applicant to alert him as to any
deficiencies in his application.
Plaintiff’s additional constitutional claims based
on the Privileges and Immunities clause violations and
Confrontation clause are not central to this narrow
questions presented here, but are material in the court’s
decision and deliberation of the overall handling of the
Plaintiff’s case by the lower court, and they are also
captured in the Plaintiff’s State Notice of Claim attached
hereto as Exhibit C, and in Plaintiff’s Jurisdictional
Response to the Court of Appeals attached hereto as
Exhibit D.
III. Statement of Claim
State as briefly as possible the facts of your case.
Describe how each defendant was personally involved
41a
Appendix D
in the alleged wrongful action, along with the dates and
locations of all relevant events. You may wish to include
further details such as the names of other persons involved
in the events giving rise to your claims. Do not cite any
cases or statutes. If more than one claim is asserted,
number each claim and write a short and plain statement
of each claim in a separate paragraph. Attach additional
pages if needed.
A. Where did the events giving rise to your claim(s)
occur?
ON OR ABOUT SEPTEMBER 8, 2018 THE
NEW YORK COURT OF APPEALS DISALLOWED
PLAINTIFF’S APPEAL OF THE APPELLATE
DIVISION SECOND DEPARTMENT’S DECISION
DENYING HIS APPLICATION FOR READMISSION
TO THE BAR FOR THE FIFTH CONSECUTIVE TIME
WITHOUT STATING ANY LEGAL OR ETHICAL
REASONS FOR THEIR DECISION STATING ONLY
THAT THE LOWER DECISION WAS “NOT FINAL”
SEE EXHIBIT B.
ON OR ABOUT MARCH 25, 2021 THE COURT
OF APPEALS AGAIN DENIED PLAINTIFF’S
APPLICATION FOR REVIEW OF THE APPELLATE
DIVISION’S DECEMBER 11, 2020 DECISION
(EXHIBIT E) DECLINING TO HEAR PLAINTIFF’S
APPLICATION FOR RE ADMISSION STATING THAT
PLAINTIFF HAD NOT RETAKEN THE MPRE. THE
PLAINTIFF APPEALED THE DECISION TO THE
HIGH COURT; AND ALTHOUGH THE HIGH COURT
ADMITTED THAT THE PLAINTIFF HAD RAISED
42a
Appendix D
A CONSTITUTIONAL CLAIM, THEY DECLINED TO
DECIDE THE MATTER BECAUSE THE CLAIM WAS
DEEMED “NOT SUBSTANTIAL” (SEE EXHIBIT F).
THIS APPEAL TO THE FEDERAL DISTRICT
COURT FOLLOWS THAT DECISION.
B. What date and approximate time did the events giving
rise to your claim(s) occur?
DECEMBER 23, 2013 (APPELLATE DIVISION 2ND
DEPARTMETN DECISION)
SEPTEMBER 8, 2018 (COURT OF APPEALS
DECISION)
DECEMBER 11, 2020 (APPELLATE DIVISION 2nd
DEPARTMENT DECISION)
AND MARCH 25, 2021 (COURT OF APPEALS
DECISION)
C. What are the facts underlying your claim(s)? (For
example: What happened to you? Who did what? Was
anyone else involved? Who else saw what happened?)
This was Plaintiff’s sixth appeal to the State of New
York for readmission to the practice of law following a five
year suspension. None of these appeals have been opposed
by either the Grievance Committee or the New York State
Client Protection Fund, who have been noticed in all
matters. Nevertheless, despite Plaintiff having met all the
43a
Appendix D
qualifications for readmission, in each and every appeal
the State of New York through its agents the Appellate
Division, denied his application for readmission without
legal explanation, without reason and just legal cause.
In each and every appeal submitted to the State of New
York, the Defendant has applied an anonymous standard
of character and fitness to Plaintiffs case, that apparently
is not applied to any other candidate to the bar.
After complaining to the Committee on Judicial
Conduct about the arbitrariness of the Courts decision
the Appellate Division declined to hear Plaintiff’s most
recent application for readmission by stating that the
Plaintiff must now RETAKE the MPRE before they
will decide on his application. This must be seen as an
illegal interposition of an earlier requirement, used as
a pretext to further discriminate against the Plaintiff.
Plaintiff immediately appealed the decision to the Court
of Appeals who declined to decide the matter claiming that
there was “NO SUBSTANTIAL [CONSTITUTIONAL]
QUESTIONS” raised in Plaintiffs appeal.
This appeal follows that final determination which
places an illegal requirement to RETAKE the MPRE
when that qualification has already been met by the
Plaintiff herein.
Indeed, the record is replete with white lawyers
who unlike myself, have been found guilty of serious
criminal felonies but have been readmitted to the
practice of law before me which, if true would violate the
1964 Civil Rights Act. And although my last appeal was
44a
Appendix D
shrouded in constitutional challenges to what appears to
be arbitrary and capricious decision-making on the part
of the Defendant, the Defendants, in a sort of judicially
tyrannical arrogance ignored all of my constitutional
arguments and rendered the same denial of my application
as it had in the past, ignoring again their constitutional
oath and duty to judge my case fairly and justly and to
uphold the privileges, immunities and protections of
the Constitution of the United States and to protect my
property rights as an American citizen.
Each an every argument raised on appeal to the Court
of Appeals involved either the Equal Protection Clause of
the United State Constitution, the Due Process Clause of
the United States Constitution, the Confrontation clause of
the United States Constitution or the Civil Rights Act of
1964. In addition there were issues based on the application
of State laws regarding the Defendant’s failure to grant
Plaintiff’s right for an interview before the “Character
and Fitness Committee” pursuant to Section 691.11(b)
(2) of the court’s rules (22 NYCRR 691.11[b][2]) which
provides that the “court will refer such application [for
readmission]” to the Committee on Character and Fitness
before granting it...” In addition Plaintiff challenged the
Defendant in not complying with their holding in The
Matter ofAnonymous (97 NY2d 332) and Matter of Citrin
(94 NY2d 459), wherein the Court of Appeals held that the
papers relied upon by the Appellate Division in denying
an application for admission or reinstatement should be
made available to the applicant. Even these rights were
denied to the Plaintiff and in so doing the Defendants
lapsed into yet another violation of the Equal Protection
Clause of the United States Constitution.
45a
Appendix D
Thus virtually the entire matter is a constitutional
claim for justice which cries out for intervention by this
Federal Court to curb the judicial abuse of power and to
bring the State courts into compliance with the proper
standard of constitutional guarantees. The Federal courts
are needed protect the rights of Plaintiff, as a tax paying
citizen of New York, who has endured the professional
punishment imposed by the lower court, and now eight
years after the initial five year suspension, the Plaintiff
is still force to fight the very court officials who imposed
this suspension, without hearing one shred of evidence
regarding the Plaintiffs defenses to the charges leveled
before him. And who continue to deny the Plaintiffs
readmission again without hearing any testimony
regarding my fitness to practice in clear violation of the
confrontation clauses of the United States constitution.
Through their judicial abuses the Defendants have
imposed “double jeopardy” on the plaintiff by extending
his suspension five additional years, and in their last
decision have made it clear their intent to impose a
perpetual punishment on the Plaintiff if not restrained
by this court.
D. ACTIONS WITHOUT JURISDICTION
The Supreme Court in Mireles v. Waco 502 US 9,1112 (1991) said that “judicial immunity is overcome when
Judges act in absence of all jurisdiction.” In this case,
in at lease two of the defendants’ decisions of denial, they
seem to indicate their reason was based on the Plaintiffs
“lack of character to practice law”. However, this was
an illegal conclusion which they had no authority to make
since the decisions on character are expressly reserved
46a
Appendix D
for the Committee on Character and Fitness pursuant
to CPLR 9U01. And since the Plaintiff was never allowed
to appear before the Character and Fitness Committee
from his very first request for re-admission in 2013, the
Defendants were without any jurisdiction or authority to
render such a decision based upon the criteria of character,
which pierces the protection of immunity would allow for
monetary recovery for their actions individually or
from the state under the doctrine of vicarious liability
(Respondeat Superior). Secondly, The defendants were
never even in a position to judge plaintiffs character since
none of the judges have ever met the Plaintiff or heard
him testify in court even in the underlying disciplinary
action. Thus the defendants had no factual basis or legal
authority for making such character assessments about
the Plaintiff; leaving on invidious discrimination as the
real reason for their decisions within the meaning of
Schware v. Board ofBar Examiners, 353 U.S. 232 (1957).
E. ONGOING VIOLATIONS OF FEDERAL LAW
“The actions of the defendants constitute an “ongoing
violation of federal law.” Within the meaning of Verizon
Md., Inc. v. Public Serv. Common of Md., 535 U.S. 635,
645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) in that the
Defendants continue to apply a Due Process standard
more strict than the Federal standard; continue to give
illegal reasons for their decision to deny re-admission of
the plaintiff, continue to operate outside their legislative
jurisdiction by making character decisions about
the plaintiff which have been expressly given to the
Committee on Character and fitness to do according to
CPLR (9401), and ultimately they continue to deny the
47a
Appendix D
Plaintiff readmission to practice law in the State of New
York and the property right attendant thereto in violation
of42U.S.C. 1983.
“Indeed, the state’s agents alleged failure to act
lawfully in this regard is, by its nature, both (1) ongoing
and (2) potentially curable byprospective relief compelling
the State and/or through its Agents to re-admit the
Plaintiff to the practice of law by lifting the suspension
which technically should have been lifted in 2013. (State
Empl. v. Rowland, 494 F.3d 71, 97 (2d Cir. 2007).
IV. Injuries
If you sustained injuries related to the events alleged
above, describe your injuries and state what medical
treatment, if any, you required and did or did not receive.
THE PLAINTIFF HAS SUFFERED LOSS OF
BUSINESS OPPORTUNITY, LOSS OF CAREER
OPPORTUNITIES, LOSS OF CIVIL LIBERTY,
DAMAGE TO PROFESSIONAL REPUTATION,
EXTREME EMOTIONAL DISTRESS, DEPRESSION,
PAIN AND SUFFERING
V. Relief
State briefly what you want the court to do for you. Make
no legal arguments. Do not cite any cases or statutes. If
requesting money damages, include the amounts of any
actual damages and/or punitive damages claimed for the
acts alleged. Explain the basis for these claims.
48a
Appendix D
1. INJUNCTIVE RELIEF RESTORING PLAINTIFF
TO THE GOOD STANDING IN THE NEW YORK
STATE BAR IN BOTH THE STATE AND FEDERAL
COURTS;
2. THE EXPUNGEMENT OF THE PUBLIC RECORD
OF THE PLAINTIFF’S DISCIPLINARY RECORD;
3. RESTRAINING ORDER PREVENTING THE
DEFENDANT’S FROM IMPOSING THE RETAKING
OF THE MPRE ON ALL CANDIDATES WHO HAVE
SUCCESSFULLY TAKEN AND PASSED THE EXAM
PRIOR TO RE-ADMISSION.
4. PREVENTING THE DEFENDANTS FROM
PENALIZING, RETALIATING AGAINST OR
F URTHER UNDERMINING PLAINTIFF’S LEGAL
CAREER AND HIS FUTURE OCCUPATIONAL,
POLITICAL AND RELIGIOUS ENDEAVORS.
5. WHATEVER OTHER MONETARY OR
INJUNCTIVE RELEIF THIS COURT DEEMS JUST
AND NECESSARY UNDER THE CIRCUMSTANCES.
AS TO THE SECOND DEFENDANT JUDGES OF
THE APPELLATE DIVISION FIRST JUDICIAL
DEPARTMENT:
1. Plaintiff re-asserts and re-alleges Sections I-V of the
complaint as if fully set forth herein below.
2. However, while the second defendants (1st Judicial
Dept) may not be responsible directly for the actions of
49a
Appendix D
the first defendants (2nd Judicial Dept), they were the
original defendants who admitted the Plaintiff to practice
law on July 26,1993, and may have been the only authority
to suspend Plaintiffs license; and thus may be able to
reinstate or recognize plaintiffs license at this time.
3. As such the Plaintiff seeks the same injunctive relief
asserted against the first Defendants to the extent it is
reasonable and necessary to do so under the circumstances.
VI. Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing
below, I certify to the best of my knowledge, information,
and belief that this complaint: (1) is not being presented
for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of
litigation; (2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law; (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and (4) the complaint
otherwise complies with the requirements of Rule 11.
A. For Parties Without an Attorney
I agree to provide the Clerk’s Office with any changes
to my address where case-related papers may be
served. I understand that my failure to keep a current
address on file with the Clerk’s Office may result in
the dismissal of my case.
50a
Appendix D
Date of signing:
Signature of Plaintiff
12/10.2021
M
Printed Name of Plaintiff DARYLL JONES
51a
APPENDIX E — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED DECEMBER 23, 2013
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT
RANDALL T. ENG, P. J.
REINALDO E. RIVERA
PETER B. SKELOS
MARK C. DILLON
THOMAS A. DICKERSON, JJ.
2006-09991
IN THE MATTER OF DARYLL BOYD JONES,
A SUSPENDED ATTORNEY
(Attorney Registration No. 2565778)
DECISION & ORDER ON MOTION
FOR REINSTATEMENT
Motion by Daryll Boyd Jones for reinstatement to
the Bar as an attorney and counselor-at-law. Mr. Jones
was admitted to the Bar at a term of the Appellate
Division of the Supreme Court in the First Judicial
Department on July 26, 1993. By decision and order on
motion of this Court dated January 29, 2007, inter alia,
the Grievance Committee for the Second, Eleventh, and
52a
Appendix E
Thirteenth Judicial Districts was authorized to institute
and prosecute a disciplinary proceeding against Mr.
Jones, and the issues were referred to the Hon. Thomas
R. Sullivan, as Special Referee, to hear and report. By
decision and order on motion of this Court dated April 1,
2008, Mr. Jones was suspended from the practice of law for
a period of five years based on 11 charges of professional
misconduct.
Upon the papers filed in support of the motion and the
papers filed in relation thereto, it is
ORDERED that the motion is denied.
We find that Daryll Boyd Jones does not demonstrate
the requisite fitness and character to practice Law.
ENG, P.J., RIVERA, SKELOS, DILLON and
. DICKERSON, JJ., concur.
ENTER:
/s/ Aprilanne Agostino
Aprilanne Agostino
Clerk of the Court
53a
APPENDIX F — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED JUNE 16, 2024
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT
RANDALL T. ENG, P. J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
PETER B. SKELOS
THOMAS A. DICKERSON, JJ.
2006-09991
IN THE MATTER OF DARYLL BOYD JONES,
A SUSPENDED ATTORNEY
(Attorney Registration No. 2565778)
DECISION & ORDER ON MOTION
Motion by Daryll Boyd Jones for leave to reargue and
renew his prior motion for reinstatement to the Bar as an
attorney and counselor-at-law which was determined by
decision and order on motion of this Court dated December
23, 2013. Mr. Jones was admitted to the Bar at a term of
the Appellate Division of the Supreme Court in the First
Judicial Department on July 26, 1993. By decision and
order on motion of this Court dated January 29, 2007,
54a
Appendix F
inter alia, the Grievance Committee for the Second and
Eleventh Judicial Districts was authorized to institute and
prosecute a disciplinary proceeding against Mr. Jones,
and the issues were referred to the Hon. Thomas Sullivan,
as Special Referee, to hear and report. By opinion and
order of this Court dated April 1, 2008, Mr. Jones was
suspended from the practice of law for a period of five
years based on 11 charges of professional misconduct.
Upon the papers filed in support of the motion and the
papers filed in relation thereto, it is
ORDERED that the motion is denied.
ENG, P.J., MASTRO, RIVERA, SKELOS and
DICKERSON, JJ., concur.
ENTER:
/s/ Aprilanne Agostino
Aprilanne Agostino
Clerk of the Court
55a
APPENDIX G — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED OCTOBER 16, 2017
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT
RANDALL T. ENG, P. J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN, JJ.
2006-09991
IN THE MATTER OF DARYLL BOYD JONES,
A SUSPENDED ATTORNEY
(Attorney Registration No. 2565778)
DECISION & ORDER ON MOTION
FOR REINSTATEMENT
Motion by Daryll Boyd Jones for reinstatement to the
Bar as an attorney and counselor-at-law. Mr. Jones was
admitted to the Bar at a term of the Appellate Division
of the Supreme Court in the First Judicial Department
on July 26,1993. By decision and order on motion of this
Court dated January 29, 2007, inter alia, a disciplinary
proceeding against Mr. Jones was authorized, and the
issues were referred to the Hon. Thomas R. Sullivan, as
56a
Appendix G
Special Referee, to hear and report. By decision and order
on motion of this Court dated April 1,2008. Mr. Jones was
suspended from the practice of law for a period of five
years based on 11 charges of professional misconduct. By
decision and order on motion of this Court dated December
23, 2013, Mr. Jones’s first motion for reinstatement was
denied. By decision and order on motion of this Court
dated June 13, 2014, Mr. Jones’s motion to renew and
reargue the first motion for reinstatement was denied.
By decision and order on motion of this Court dated April
6,2015, Mr. Jones’s second motion for reinstatement was
denied. By decision and order on motion of this Court
dated February 19, 2016, Mr. Jones’s third motion for
reinstatement was denied as premature.
Upon the papers filed in support of the motion and the
papers filed in relation thereto, it is
ORDERED that the motion is denied.
We find that Daryll Boyd Jones does not demonstrate
the requisite character and fitness to practice law.
ENG, P. J., MASTRO, RIVERA, DILLON and BALKIN,
JJ., concur.
ENTER:
/s/ Aprilanne Agostino
Aprilanne Agostino
Clerk of the Court
57a
APPENDIX H — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED MARCH 28, 2018
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT
ALAD D. SCHEINKMAN, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN, JJ.
2006-09991
IN THE MATTER OF DARYLL BOYD JONES,
A SUSPENDED ATTORNEY
(Attorney Registration No. 2565778)
DECISION & ORDER ON MOTION
FOR REINSTATEMENT
Motion by Daryll Boyd Jones for leave to renew and
reargue his fourth motion for reinstatement, which was
denied by decision and order on motion of this Court dated
October 10, 2017. Mr. Jones was admitted to the Bar at
a term of the Appellate Division of the Supreme Court
in the First Judicial Department on July 26, 1993. By
decision and order on motion of this Court dated January
29, 2007, a disciplinary proceeding against Mr. Jones
58a
Appendix H
was authorized, and the issues raised were referred to
the Honorable Thomas R. Sullivan, as Special Referee,
to hear and report. By decision and order on motion of
this Court dated April 1,2008, Mr. Jones was suspended
from the practice of Jaw for a period of five years based
on 11 charges of professional misconduct. Mr. Jones’s first
three motions for reinstatement were denied by decisions
and orders on motion of this Court dated December 23,
2013, April 6, 2015, and February 19, 2016, respectively.
Upon the papers filed in support of the motion and the
papers filed in relation thereto, it is
ORDERED that the motion is denied.
SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON
and BALKIN, JJ., concur.
ENTER:
/s/ Aprilanne Agostino
Aprilanne Agostino
Clerk of the Court
59a
APPENDIX I — DECISION AND ORDER OF
THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT,
FILED DECEMBER 11, 2020
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL
DEPARTMENT
ALAD D. SCHEINKMAN, P. J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN, JJ.
2006-09991
IN THE MATTER OF DARYLL BOYD JONES,
A SUSPENDED ATTORNEY
(Attorney Registration No. 2565778)
DECISION & ORDER ON MOTION
FOR REINSTATEMENT
Motion by Daryll Boyd Jones for reinstatement to the
Bar as an attorney and eounselor-at-law. Mr. Jones was
admitted to the Bar at a term of the Appellate Division
of the Supreme Court in the First Judicial Department
on July 26,1993. By decision and order on motion of this
Court dated January 29, 2007, inter alia, a disciplinary
proceeding against Mr. Jones was authorized, and the
issues raised were referred to the Honorable Thomas
60a
Appendix I
R. Sullivan, as Special Referee, to hear and report. By
decision and order on motion of this Court dated April
1, 2008, Mr. Jones was suspended from the practice
of law for a period of 5 years based on 11 charges of
professional misconduct. Mr. Jones’s first four motions
for reinstatement were denied by decisions and orders on
motion of this Court dated December 23, 2013, April 6,
2015, February 19,2016, and October 10,2017, respectively.
By decisions and orders on motion of this Court dated June
13,2014, and March 27,2018, Mr. Jones’s motion to renew
and reargue his first and fourth motions for reinstatement,
respectively, were denied.
Upon the papers filed in support of the motion and the
papers filed in relation thereto, it is
ORDERED that the motion is denied with leave
to renew upon providing proof of timely passage of
the MPRE, as required by 22 NYCRR 1240.16(b), and
completion of sufficient CLE credits in accordance with
22 NYCRR 691.11(a).
SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON
and BALKIN, JJ., concur.
ENTER:
/s/ Aprilanne Agostino
Aprilanne Agostino
Clerk of the Court
61a
APPENDIX J — RELEVANT CONSTITUTIONAL
AND STATUTORY PROVISIONS
U.S. Constitution, Amendment XIV Due Process and Equal Protection Clauses
“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 within its jurisdiction the equal
protection of the laws.”
62a
Appendix J
Federal Rule of Civil Procedure 21 Misjoinder and Nonjoinder of Parties
“Misjoinder of parties is not a ground for dismissing
an action. On motion or on its own, the court may at any
time, on just terms, add or drop a party. The court may
also sever any claim against a party.”
63a
Appendix J
42 U.S.C. § 1983 - Civil Action for Deprivation
of Rights
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress..
64a
Appendix J
New York Judiciary Law § 90(10)
“All papers, records and documents upon the
application or examination of any person for admission as
an attorney and counsellor at law and 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 be deemed
private and confidential. However, the court may, in the
interest of justice and upon written request, permit the
disclosure of such records.”
65a
APPENDIX K — OTHER RELEVANT MATERIALS
(CIVIL RIGHTS CORP. V. PESTANA EXCERPTS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 21-cv-09128-VM
CIVIL RIGHTS CORPS, CYNTHIA GODSOE,
NICOLE SMITH FUTRELL, DANIEL S. MEDWED,
JUSTIN MURRAY, ABBE SMITH,
AND STEVEN ZEIDMAN,
Plaintiffs,
- against GEORGIA PESTANA, Corporation Counsel of the
City of New York, in her official and personal capacity;
MELINDA KATZ, the District Attorney for Queens
County, in her official and personal capacity; ANDREA
E. BONINA, Chair of the State of New York Grievance
Committee for the Second, Eleventh, and Thirteenth
Judicial Districts, in her official and personal capacity;
DIANA MAXFIELD KEARSE, Chief Counsel of
the State of New York Grievance Committee for the
Second, Eleventh, and Thirteenth Judicial Districts,
in her official and personal capacity; and HECTOR D.
LASALLE, Presiding Justice of the Second Judicial
Department of the Appellate Division of the Supreme
Court of the State of New York, in his official capacity,
Defendants.
66a
Appendix K
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiffs Civil Rights Corps (“CRC”), and Professors
Cynthia Godsoe, Nicole Smith Futrell, Daniel S. Medwed,
Abbe Smith, and Steven Zeidman (collectively, the
“Professors” or “Law Professors”), and Justin Murray,
by and through their attorneys, Patterson Belknap Webb
& Tyler LLP, for their Complaint against the defendants
Georgia Pestana, the Corporation Counsel for the City
of New York in her official and personal capacity (the
“Corporation Counsel”), Andrea E. Bonina, the Chair
of the State of New York Grievance Committee for the
Second, Eleventh, and Thirteenth Judicial Districts
in her official and personal capacity, Diana Maxfield
Kearse, Chief Counsel of the State of New York Grievance
Committee for the Second, Eleventh, and Thirteenth
Judicial Districts, in her official and personal capacity
(together, the “Grievance Committee”), Melinda Katz,
the District Attorney of Queens County, in her official and
personal capacity (the “Queens District Attorney”), and
Hector D. LaSalle, the Presiding Justice of the Second
Judicial Department of the Appellate Division of the
Supreme Court of the State of New York, in his official
capacity, (all collectively, the “Defendants”), allege as
follows:
INTRODUCTION
1. This is a civil rights action seeking redress for
Defendants’ infringement of Plaintiffs’ First Amendment
right to speak and advocate freely on a matter of grave
public importance—prosecutorial misconduct. It is also
67a
Appendix K
a proceeding to declare unconstitutional under the First
Amendment of the United States Constitution and under
Article I, § 8, of the New York Constitution, New York
State Judiciary Law § 90(10) insofar as it is applied to
censor Plaintiffs’ speech and to keep confidential the
disciplinary proceedings Plaintiffs have requested.
2. Prosecutorial misconduct is a scourge in New
York State, and yet prosecutors are rarely disciplined for
their misconduct. Bar association reports and legislative
efforts to make prosecutors accountable for violating the
law—and sending innocent people to prison—have failed
repeatedly. So, too, have bar association and legislative
efforts to open disciplinary proceedings to the public. Even
though the consequences of prosecutorial misconduct can
be a wrongful conviction and decades spent behind bars,
the response of those responsible for attorney discipline
has been, in effect, a collective shrug of the shoulders.
3. The Plaintiffs are a group of law professors
supported by the CRC who have addressed this issue
head-on. They have prepared and filed complaints with
relevant New York grievance committees demonstrating
repeated violations of law by present and former Assistant
District Attorneys in Queens County, and have asked
that any resulting disciplinary proceedings take place
in public. The complaints are well-documented and are
based on the public record, primarily judicial findings of
prosecutorial wrongdoing. Much of the misconduct was
so severe that courts were required to reverse a jury’s
verdict. At the same time, Plaintiffs have made their
campaign public by publishing their complaints on the
68a
Appendix K
website AccountabilityNY.org and urging the public to
support reform efforts. Everything the Plaintiffs have
done is in the public interest and is fully supported by the
First Amendment.
4. Nonetheless, Plaintiffs’ activities are threatening
to some of the Defendants, who have embraced and relied
upon the status quo for many decades. The Grievance
Committee largely ignores the rules of conduct for
prosecutors and focuses its attention instead on civil
attorneys. The Queens District Attorney and the
Corporation Counsel benefit from the blind eye of the
Grievance Committee, which allows prosecutors to run
amuck without sanction. All these Defendants use the
confidentiality provisions of Judiciary Law § 90(10) as
an excuse for inaction—and as a basis for threats and
retaliatory actions against the Plaintiffs for their efforts
at reform. And the People of the State of New York suffer
from a system of justice that, too often, means injustice
for the downtrodden and immunity for those in power.
5. These Defendants responded to Plaintiffs’ public
interest activities with an aggressive campaign of
harassment and threats, which included retaliating against
Plaintiffs for exercising their First Amendment rights.
Specifically, the Corporation Counsel, on behalf of the City
of New York and the Queens District Attorney, wrote to
the Grievance Committee attacking the Law Professors
for purportedly violating Judiciary Law § 90(10). He
accused the Law Professors of “misusing] and indeed
abus[ing] the grievance process to promote a political
agenda” in a way that “should not be countenanced.” Ex.
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1 at 3. In threatening language, the Corporation Counsel
asked the Grievance Committee to take action against
the Professors for their complaints, and he promised
further interventions in the event any more complaints
were filed. At the same time, seeking to keep secret his
baseless accusations, the Corporation Counsel insisted
that his letter be kept confidential under Judiciary Law
§ 90(10) so that the People of New York would never learn
about his intemperate attack on those who would try to
improve the system.
6. In direct response to the Corporation Counsel’s
demand, the Grievance Committee promptly took adverse
action against the Law Professors by stripping them of
the rights that New York law accords those who complain
about attorney misconduct. A complainant in an attorney
misconduct proceeding has the right to learn what is
happening to his or her complaint and has the right to
appeal adverse decisions. Thus, as complainants, the Law
Professors expected to learn what happened at each step
of the review process by the Grievance Committee and
why.
7. Instead, the Grievance Committee decided that
it would pretend that the Law Professors were not
complainants, and would instead treat any investigation—
to the extent any occurs—as something initiated sua
sponte, i.e., at the Committee’s own initiative and thus
confidential from virtually all disclosure under Judiciary
Law § 90(10). This action means that the Professors will
not learn the results of their complaints, which would
remain confidential, and that the Professors would be
unable to appeal any adverse decision.
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8. The Grievance Committee’s decision is a charade.
If the Grievance Committee does anything in response to
the Law Professors’ complaints, it would not be an action
taken sua sponte, but rather, an action taken because the
Law Professors have analyzed, marshalled and presented
the evidence from a variety of different publicly-available
sources to the Grievance Committee. The Law Professors
are complainants as clearly defined in New York law and
entitled to all the rights of complainants.
9. As a consequence of this retaliatory action in
violation of the First Amendment and New York law,
the Law Professors—and the public—may never learn
what, if anything, the Grievance Committee does with
their complaints. The Grievance Committee said as much
to the Professors. It wrote to the Professors that “any
investigations into these allegations . . . would remain
confidential pursuant to New York State Judiciary Law
§ 90” unless they actually resulted in any public discipline.
And in case there was any doubt that the Professors should
have no reason to expect any disciplinary action at all to
result from their complaints, the Grievance Committee
added that its letter “does not constitute confirmation as to
whether any investigations will or will not be pursued.” Ex.
2. Because of the confidentiality provisions of Judiciary
Law § 90(10), the public will never learn if, as is now
expected, the Grievance Committee simply decides to
ignore the Law Professors’ complaints and, once again,
to let malfeasant prosecutors off the hook.
10. The pretext for all of these Defendants’ actions
is Judiciary Law § 90(10), which purports to keep
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confidential everything associated with a disciplinary
proceeding—including even the correspondence between
the Law Professors, the Corporation Counsel, and the
Grievance Committee. Judiciary Law § 90(10) is overbroad
and unconstitutional both on its face and as applied to
this case. Whatever may be true in other cases, there are
simply no privacy interests at stake here to justify either
muzzling the Professors’ free speech rights or holding
any investigation of the accused prosecutors in secret.
The prosecutorial misconduct alleged is all documented
in the public record, principally in judicial decisions. The
prosecutors themselves are public servants engaged in
public business. Because Judiciary Law § 90(10) serves
no valid interest in this case—let alone a compelling
one—its application to the Professors’ complaints is
unconstitutional.
11. New Yorkers deserve better than public officials
who engage in a campaign of intimidation and retaliation
against those who would seek to address prosecutorial
misconduct in this State. New Yorkers also deserve to
know what wrongs these public officials have committed,
and are committing, in their name. The First Amendment
demands not only that harassment of the Plaintiffs must
stop, but also that any further disciplinary proceedings
of the accused prosecutors be open to the public.
THE PARTIES
12. Plaintiff CRC is a non-profit organization
dedicated to challenging systemic injustice in the United
States. It engages in advocacy and public education and
72a
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specializes in innovative civil rights litigation with the
goal of sensitizing the legal system and the public to the
injustice and brutality that can occur in the contemporary
United States legal system.
13. Plaintiff Cynthia Godsoe is a Professor of Law at
Brooklyn Law School. Professor Godsoe teaches courses in
family law, criminal law, children and the law, professional
responsibility, and public interest lawyering. She is the
Director of the Edward V. Sparer Public Interest Law
Fellowship and the Marsha Garrison Family Law and
Policy Fellowship programs. Professor Godsoe is an active
member of the New York bar.
14. Plaintiff Nicole Smith Futrell is an Associate
Professor of Law and Co-Director of the Defenders Clinic
at CUNY School of Law. Professor Futrell’s teaching and
scholarship focus on criminal procedure, legal ethics, post
conviction relief, reentry, and social justice lawyering. In
her clinical practice, she and her students represent clients
in a variety of criminal defense-related contexts, including
state court misdemeanor cases, parole and clemency
petitions, wrongful conviction matters, and civil claims
related to criminal convictions. Professor Smith Futrell
is an active member of the New York bar.
15. Plaintiff Daniel S. Medwed is the University
Distinguished Professor of Law and Criminal Justice
at Northeastern University School of Law. Professor
Medwed teaches criminal law, evidence, and advanced
criminal procedure. His research and pro bono activities
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revolve around the topic of wrongful conviction. Professor
Medwed is an active member of the New York bar.
16. Plaintiff Justin Murray is Associate Professor
of Law at New York Law School and Co-Director of the
Criminal Justice Institute. He teaches criminal law,
criminal procedure, and constitutional law and co-teaches
courses covering race, bias, and advocacy in the legal
system. Professor Murray is an active member of the
Illinois bar.
17. Plaintiff Abbe Smith is the Scott K. Ginsburg
Professor of Law, Director of the Criminal Defense
and Prisoner Advocacy Clinic, and Co-Director of
the E. Barrett Prettyman Fellowship Program at the
Georgetown University Law Center. Professor Smith
teaches and writes on criminal defense, legal ethics,
juvenile justice, and clinical legal education. Professor
Smith is an active member of the New York bar.
18. Plaintiff Steven Zeidman is a Professor of Law and
Director of the Criminal Defense Clinic at CUNY School
of Law. He teaches and works in the area of criminal
defense. Professor Zeidman is an active member of the
New York bar.
19. Defendant Georgia Pestana is the Corporation
Counsel for the City of New York. She is sued in her
official and personal capacity. The Corporation Counsel
leads the New York City Law Department, which
comprises approximately 1,000 lawyers and 890 support
professionals.
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20. Defendant Andrea E. Bonina is the Chair of
the State of New York Grievance Committee for the
Second, Eleventh, and Thirteenth Judicial Districts
(the “Grievance Committee”). She is sued in her official
and personal capacity. The Grievance Committee is
an “Attorney Grievance Committee,” as defined by 22
N.Y.C.R.R. § 1240.2(d), that is endowed with the power
and responsibility to investigate and sanction attorney
misconduct and ethical breaches. As Chair of the
Grievance Committee, Defendant Bonina is a member of
the Grievance Committee and has special responsibilities
and powers beyond those of an ordinary grievance
committee member. See 22 N.Y.C.R.R. § 1240.7(e).
21. Defendant Diana Maxfield Kearse is Chief Counsel
of the Grievance Committee. She is sued in her official and
personal capacity. Ms. Kearse is the “Chief Attorney” of
the Grievance Committee. See 22 N.Y.C.R.R. § 1240.5.
As such, she is empowered to investigate professional
misconduct complaints, and is obligated to report certain
information to a complainant about any disciplinary
proceedings resulting from his or her complaint. See 22
N.Y.C.R.R. § 1240.7.
22. Defendant Melinda Katz is the District Attorney
for Queens County. She is sued in her official and personal
capacity. The District Attorney for Queens County is
responsible for conducting all prosecutions for crimes and
offenses committed within Queens County.
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23. Defendant Hector D. LaSalle is the Presiding
Justice of the of the Second Judicial Department of the
Appellate Division of the Supreme Court of the State of
New York (the “Second Department”). He is sued in his
official capacity. The Second Department, as one of four
Appellate Divisions of the Supreme Court of the State
of New York, is vested by the New York legislature with
the power and ultimate authority to regulate attorney
admissions and conduct, including by promulgating rules
concerning attorney discipline. New York Judiciary Law
§ 90(2).
JURISDICTION AND VENUE
24. This Court has subject matter jurisdiction over
this action pursuant to 28 U.S.C. §§ 1331 (action arising
under the Constitution and federal law), 1343(a) (action to
redress deprivation of civil rights), and 1367 (supplemental
jurisdiction).
25. This action arises under 42 U.S.C. § 1983.
Plaintiffs’ claims for declaratory and injunctive relief are
authorized by 28 U.S.C. §§ 2201 and 2202.
26. Venue in this judicial district is proper pursuant to
28 U.S.C. § 1391(b) because one or more Defendants reside
in this judicial district and all Defendants are residents
of New York, or, alternatively, because a substantial part
of the events or omissions giving rise to Plaintiffs’ claims
occurred in this judicial district.
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BACKGROUND
A. New York’s Grievance Committees Allow
Prosecutors to Run Amok
27. The fair operation of the criminal legal system is
a matter of overriding public importance. The New York
Court of Appeals has recognized that “it is not enough
for a District Attorney to be intent on the prosecutions of
his case.” People v. Bailey, 58 N.Y.2d 272, 276-77 (1983)
(cleaned up). Rather, “his paramount obligation is to the
public, [and so] he must never lose sight of the fact that
a defendant, as an integral member of the body politic,
is entitled to a full measure of fairness.” Id. (internal
modifications and citations omitted). The “public at large,”
in addition to each defendant, is “entitled to assurance
that there shall be full observance and enforcement of
the cardinal right of a defendant to a fair trial.” People v.
Crimmins, 36 N.Y.2d 230, 237-38 (1975).
28. Central to achieving a fair trial is the obligation
of prosecutors to “deal fairly with the accused and be
candid with the courts.” People v. Colon, 13 N.Y.3d 343,
349 (2009) (internal quotation marks and citation omitted).
Prosecutors have a “heightened duty of candor to the
courts an in fulfilling other professional obligations.”
2017 American Bar Association Standard 3-1.4(a) for the
Prosecution Function.
29. Prosecutorial misconduct can have devastating
consequences; it can cause the imprisonment of innocent
people. A 2020 study of more than 2,000 exonerations
77a
Appendix K
found that prosecutorial misconduct was a factor in
30% of the exonerees’ convictions. National Registry of
Exonerations, Government Misconduct and Convicting
the Innocent (September 1, 2020), available at https://
www.law.umich.edu/special/exoneration/Documents/
Government_Misconduct_and_Convicting_the_Innocent.
pdf.
30. In New York, Grievance Committees have a
crucial—and singular—role in regulating prosecutorial
misconduct. Unlike other practicing attorneys admitted
to the New York state bar and other law enforcement
officials, prosecutors alone have “absolute immunity”
from civil suit. Imbler v. Pachtman, 424 U.S. 409, 427
(1976). The doctrine of “absolute immunity” has been
justified based on the assumption that “associations of
[] peers,” like the New York grievance committees, will
regulate prosecutors through “professional discipline,”
such that civil suits are not necessary to deter and punish
prosecutorial misconduct. Imbler, 424 U.S. at 429.
31. Unfortunately, this crucial pillar supporting
the doctrine of “absolute immunity” is illusory. A
2013 report from the Center for Prosecutor Integrity
identified 3,625 cases of prosecutorial misconduct in the
50 years from 1963 to 2013. Of those, only 63—less than
2 percent—ever resulted in any public sanction. Center
for Prosecutor Integrity, White Paper: An Epidemic
of Prosecutor Misconduct (December 2013), available
at www.prosecutorintegrity.org/wp-content/uploads/
EpidemicofProsecutorMisconduct.pdf. Neither judges nor
fellow lawyers regularly report prosecutorial misconduct
78a
Appendix K
to disciplinary committees, and these committees rarely
discipline prosecutors for misconduct when such reporting
occurs. Bruce Green & Ellen Yaroshefsky, Prosecutorial
Accountability 2.0, 92 Notre Dame L. Rev. 51, 65 (2017).
32. The problem is particularly acute in New York.
An analysis of New York state and federal court decisions
from 2001 to 2011 found 30 decisions overturning
convictions explicitly because of prosecutorial misconduct.
Joaquin Sapien and Sergio Hernandez, Who Polices
Prosecutors Who Abuse Their Authority? Usually
Nobody, ProPublica (April 3, 2013), available at https://
www.propublica.org/article/who-polices-prosecutorswho-abuse-theirauthority-usually-nobody. This analysis
revealed that only one of the prosecutors found by a court
to have committed misconduct was publicly disciplined
by a New York grievance committee; none of the other
implicated prosecutors was disbarred, suspended, or
publicly censured. Id. Some were even promoted and given
raises after courts publicly cited them for their abuses. Id.
33. In 2019, the most recent year for which statewide
data is available, not a single New York prosecutor was
publicly disciplined by a grievance committee for onthe-job misconduct. Rory Fleming, How New York Lets
Prosecutors Off The Hook for Misconduct, New York
Focus (September 1, 2021), available at https://www.
nysfocus.com/2021/09/01/how-newyork-lets-prosecutorsoff-the-hook-for-misconduct/.
34. In one isolated instance, in 2021, former prosecutor
Glenn Kurtzrock was suspended from practice for two
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years. This is the exception that proves the rule—that
the disciplinary system for prosecutors is broken. In
2017, Kurtzrock was fired mid-trial by the Suffolk
County District Attorney after the trial judge found
he had engaged in extreme misconduct by withholding
critical Brady material. The district attorney referred
Kurtzrock to the grievance committee. Even with a
referral from the District Attorney and a judicial finding
of misconduct, it took the grievance committee more than
three full years to resolve the matter. The grievance
committee’s extraordinary failure to act for years on
end was the subject of critical press commentary, Nina
Morrison, What Happens When Prosecutors Break the
Law? New York Times (June 18,2018), available at https://
www.nytimes.eom/2018/06/18/opinion/kurtzrock-suffolkcounty-prosecutor.html, and litigation. In the Matter of
the Application of The Innocence Project, Inc., No. 201905674 (N.Y. App. Div. July 12, 2019).
35. Prosecutorial misconduct—and the failure of
New York’s grievance committees to serve their crucial
role of disciplining prosecutors for misconduct—inflicts
devastating consequences on innocent New Yorkers.
Since 1989, at least 234 cases in New York have resulted
in the exoneration of a wrongly-convicted defendant.
Eighty-eight of those cases involved prosecutors wrongly
withholding exculpatory material. Susan DeSantis,
Judges Ordered to Direct Prosecutors to Turn Over
Information Favorable to Defense, New York Law Journal
(November 7, 2017), available at http://www.law.com/
newyorklawjoumal/sites/newyorklawjoumal/2017/11/07/
judges-ordered-todirect-prosecutors-to-turn-over-
80a
Appendix K
information-favorable-to-defense/. Such misconduct has
caused people to suffer decades of imprisonment with
accompanying physical and mental trauma and separation
from family and loved ones.
36. The lack of discipline for prosecutors who commit
misconduct is a topic of tremendous public importance. In
recent years, two advisory bodies created by the Chief
Judge of the New York Court of Appeals have issued
recommendations about this issue.
37. In September 2015, the Commission on Statewide
Attorney Discipline recommended putting in place
a process “to ensure that judicial determinations of
prosecutorial misconduct are promptly referred to the
appropriate disciplinary committee” and that sanctions
meted out for misconduct be “publicly released” because
“the public has every right to scrutinize the conduct of
those it entrusts with public office.” NYS Commission
on Statewide Attorney Discipline, Final Report to Chief
Judge Jonathan Lippman, the Court of Appeals, and the
Administrative Board of the Courts (September 24,2015)
(the “Lippman Commission Report”), 78-79, available
at http://ww2.nycourts.gov/sites/default/files/document/
files/2020-10/AttyDiscFINAL9-24-l.pdf.
38. Just 15 months later, the New York State Justice
Task Force recommended that grievance committees
“proactively review available court decisions” and
undertake investigations “where a finding of attorney
misconduct has been made in a court decision.” New
York State Justice Task Force, Report on Attorney
81a
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Responsibility in Criminal Cases (February 2017), 5,
available at http://www.nyjusticetaskforce.com/pdfs/201
7JTFAttorneyDisciplineReport.pdf.
39. Beginning in 2018, New York State has attempted
to implement legislation creating a first-in-the-nation
State Commission on Prosecutorial Conduct. That reform
effort has been met with unrelenting opposition from the
District Attorney Association of New York, which filed
suit immediately after the law was enacted. In response
to the lawsuit, the State amended the law, and the District
Attorneys sued again. They won an Order invalidating
the new law in January 2020. With no acknowledgement
of the disingenuity of their position, opponents of the
Commission have argued that the solution is not a State
Commission, but rather more of the same—for “grievance
committees [to] focus more carefully on prosecutors in
appropriate cases.” But, of course, that has not happened
and is not likely to happen anytime soon.
40. In June 2021, New York tried for a third time to
obtain some control over misbehaving prosecutors. It
passed new legislation in June 2021—much watered-down
from its earlier attempts—to address the challenges to
the prior legislation. Nick Reisman, Cuomo signs bill
creating prosecutor conduct panel, Spectrum News 1
(June 18, 2021), available at https://spectrumlocalnews.
com/nys/central-ny/ny-state-of-politics/2021/06/18/cuomosigns-billcreating-prosecutor-conduct-panel. Even if this
iteration of the legislation survives intact, it is just one
insufficient step to address an enduring problem.
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Appendix K
B. New York Law Keeps Disciplinary Proceedings
Confidential
41. The grievance proceedings that are supposed to
protect New Yorkers from unethical lawyers, including
prosecutors who engage in misconduct, are almost
invariably conducted in secret. In that respect, New
York Judiciary Law § 90(10) is a rarity among the
attorney discipline procedures throughout the Nation.
It requires confidentiality of attorney disciplinary
proceedings and all papers related to the proceedings
unless and until discipline is recommended, or more
often, disciplinary charges are sustained by the Appellate
Division. Technically, the Appellate Division could make
proceedings and documents public sooner “upon good
cause being shown,” but this almost never happens in
practice.
42. For example, despite considerable public attention
and an amicus brief from prominent news organization,
the Second Department denied the Innocence Project’s
application to unseal any records or hearing concerning
disciplinary proceedings against Glenn Kurtzrock. In a
one-paragraph ruling, the court held, without analysis,
that the petition “had
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