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

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

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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).............................

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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).

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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.

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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)

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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.

\

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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

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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.

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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.)

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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.)

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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).

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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

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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

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Appendix K

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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Appendix K

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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Appendix K

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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Appendix K

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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Appendix K

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-

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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

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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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