Petition for Writ of Certiorari — Polur v. Raffe

Supreme Court brief1991

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In The

SUPREME COURT OF THE UNITED

Term, 1991

SAM POLUR,

Petitioner,

- against -

HYMAN RAFFE, A.R. FUELS, IN

FELTMAN, KARE

Q , DONALD F. SCH

KLEIN, Justice of

State of New York,

ork, DAVID H.

Supreme Court St

New York,

Referee

New

nMe

AM POLUR

Attorney,

110 East

New York,

(212) 777-8616

QUESTIONS PRESENTED

Question 1. WHETHER THE COURTS BELOW UNLAW-

FULLY APPLIED THE FULL FAITH AND CREDIT

STATUTE AND FURTHER DEPRIVED PETITIONER

OF HIS CONSTITUTIONAL RIGHT TO ACCESS TO

THE COURTS FOR REDRESS OF GRIEVANCES IN

VIOLATION OF THE FIRST AMENDMENT TO THE

UNITED STATES CONSTITUTION AND PRECEDENT

CASE LAW FROM THIS UNITED STATES

SUPREME COURT?

Question 2. WHETHER THE "MOST LITIGATED CASE"

IN NEW YORK STATE COURT HISTORY CAN BE

BROUGHT TO ALLEGED FINALITY THROUGH THE

WHOLESALE DESTRUCTION AND DEPRIVATION

OF THE RIGHT TO ACCESS TO THE COURTS OF

AN UNNAMED PARTY TO any OF THOSE

PROCEEDINGS?

Question 3. WHETHER THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT COULD

TOTALLY IGNORE THE MANDATES OF THIS COURT 9%

RULINGS IN MIGRA V. WARREN, 465 U.S. 75 (1984)

AND ALLEN V. McCURRY, 499 U.S. 90 (1980),

REGARDING APPLICATION OF THE FULL FAITH

AND CREDIT STATUTE AND GIVE THIS COURT'S

RULINGS THEREIN AN ALTOGETHER DIFFERENT

MEANING AND EFFECT THAN WAS ARTICULATED

AND MANIFESTLY INTENDED?

ey ee

Question 4. COULD THE UNITED STATES COURT OF

" APPEALS FOR THE SECOND CIRCUIT NOT REMAND

THE CASE TO THE UNITED STATES DISTRICT

COURT, STANTON, J., REQUIRING THE

DISTRICT COURT TO EXAMINE, DE NOVO, THE

RECORD OF THE STATE COURT PROCEEDING

WHEREIN PETITIONER CLAIMS THERE WAS NO

FULL AND FAIR OPPORTUNITY TO LITIGATE

THE ISSUES PRESENTED, AS MANDATED BY

THIS COURT IN MIGRA AND ALLEN V. McCURRY

PRIOR TO GRANTING PRECLUSIVE EFFECT TO

THE STATE COURT JUDGMENT UNDER THE FULL

FAITH AND CREDIT STATUTE?

Question 5. WHETHER FULL FAITH AND CREDIT,

RES JUDICATA OR COLLATERAL ESTOPPEL

MAY BE APPLIED TO PROTECT A STATE

COURT JUDGMENT ISSUED BY A COURT

LACKING BOTH SUBJECT MATTER AND IN

PERSONAM JURISDICTION?

Question 6. CAN THE UNITED STATES COURT OF APPEALS

IGNORE PETITIONER'S DOCUMENTED CHARGES THAT

EXTORTION OF MONIES IN EXCESS OF $2.5 MILLION

IN THE GUISE OF ALLEGED LEGAL FEES FROM ONE

HYMAN RAFFE, WAS LARCENOUSLY ACHIEVED WITHOUT

COURT ORDER IN FURTHERANCE OF USE OF THE

STATE SUPREME COURT AS AN ENTERPRISE FOR

RICQ PURPOSES?

| TABLE OF AUTHORITIES

Table of Cases

United States Supreme Court

Adickes v. S:H. Kress & Co., 398 U.S. 144..

Allee ¥. BeCurry, 99 Uass PGi cecsvececes on

Bradley v. Fisher, 80 U.S. (13 Wall) 351...

Bloom v. Illinois, 391 U.S. 194 (1968).....

Boddie v. Connecticut, 401 U.S. 371 (1971).

California v. Green, 349 U.S. 149 (1970)..

Davis v. Alaska, 415 U.S. 308 (1974)......

Dennis v. Sparks, 449 U.S. 24 (1980)......

Dutton v. Evans, 400 U.S. 74 (1970)...... 7

in fe Oliver, 333 U.S... 267 (U087). 20055 %0%

Jenkins v. McKeithen, 395 U.S. 411 (1969).

Kentucky v. Stincer, 482 U.S.- 730 (1986)..

Kremer v. Chemical Construction Corp.,

ee ee Se Peer rer et

Migra v. Warren City School District Board

of Education.465 U.S..75.(1984):........

Morrisey v. Brewer, 408 U.S. 471 (1972)...

Ohio v. Roberts, 448 U.S. 471 (1972)......

Pierson vw. Rav, 366 Uide BSF cavevoneveceas

Specht v. Patterson, 386 U.S. 605 (1967)...

95,96

15,28,

15,16,

17,22

TABLE OF AUTHORITIES

Table of Cases Page(s)

United States Supreme Court

Stump v. Sparkman, 435 U.S. 349 (1978).... 54

Townsend v. Sain, 372.U.S. 72 (1988)...... 26

U.S. Catholic Conference v. Abortion Rights 4]

Mobilization, 487 U.S. 72 (1988)........

Washington v. Texas, 388 U.S. 14 (1967)... 36

Webb v. Texas, 409 U.S. 95 (1972)......... 36

U.S. Court of Appeals

Friedman v. N.Y.C. Dept. of Housing

and Development Administration, 876 F. 2d 24

mee! Be | Pre ea re

Rankin v. Howard, 633 F. 2d 844 51,90"

Oe a ee he ba wn ee eae be eae ee ees 24.99

Ruiz v. Commissioner of Department of

Transportation of City of New York, 858 F 25

2 Bl BA ee) | pre e

U.S. District Courts

coo ¢

Gregory v. Thompson,

Pe a OE ae ee rere rere Tee

Douglas v. Adel, 269 N.Y. 144, 199 W.E :

ee. | eee are "

Gramatan Home Investors Corp. v. Lopez 25

26. OG. 9c Be Gee: TRU TOE 0h ke ena cu. 44 5eN ae ee

Kamp v. Ramp, 59 N.Y. 2d 212 (1874). $8.45,

Koch v. Consolidated Edison Co., 62

N.Y. 2d 548, 479, N.Y.S. 2d 163 (1984).... 18

TABLE OF AUTHORITIES

Table of Cases

Matter of Levy, 37 N.Y. 2d 279,372 N.Y.S.

Be. oy) errr erre rr err er eee ee

Meinhard v. Solmon; 249 N.Y. 458,164 N.E.

Go > ar ear re ee ra ae ee ae

P.M. v. Davison; 37 R.Y¥. 235 (1867). .....05.

Ryan v. New York Telephone Company, 62 N.Y.

2d 494,478 N.Y.S. 2d 823 (1984)

S.t. Grand Inc. v. City of New York, 32 N.Y.

SG BGG See Bit .S. 2G SES CASTS) csc cence cs

Vavolizza v. Kriger, 33 N.Y. 2d 351,352 |

Rat cis ee URE saw as tne ce aVew oun eee

N.¥.Supreme Court Appellate Division

Billingsley v. Better Business Bureau,

232- AvOs- EE7 5 CHS WiV iS. TOS ccewcsccncsés

Matt

Supreme Court Westchester County

Board of Education of City Schocl District

of City of New Rochelle v. Feluck, 60 Misc.

2d 1090, 304 N.Y.S. 2d 697 (1969)...........

United States Constitution Amendments

Amendment 1

Amendment 5

Amendment 14

Miscellaneous Authorities

18 U.S.C. Section 1961, et. seq.

28 U.S.C. Section 1254, subdivision (1)

28 U.S.C. Section 1738,

42 U.S.C. Section 1983

Federal Rules of Civil Procedure, Rule 59(e)

N.Y.S. Judiciary Law, Sections 750-753

N.Y. Civil Practice Laws and Rules Section

403 (c),(d)

Judgments restatement (2nd), Section 27

Fox New York Law Journal, April 1988

Pollitt, 8 J.Pub.L. (1959)

Page(s)

22,30

1g,tt

BEST AVAILABLE COI

Opinions Below

The Decision and Order of the New York

Supreme Court, Edwards, J., dismissing peti-

tioner's complaint, Index No. 17481/86, dated

October 16, 1987; opinion and order of the

United States District Court, Southern Dis-

trict of New York, Stanton, J., dismissing

petitioner's complatnt, Index No. 88-2514,

dated July 17, 1989; opinion and order of

the United States Court of Appeals for the

Second Circuit, affirming, in part, and modi-

fying, in part, the order of the District

Court, Stanton, J., dated August 22, 1990; the

order of tne United States Court of Appeals

for the Sécond Circuit, denyina reargument,

dated October 26, 1990. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C.

Section 1254(1).

Constitutional Provisions

Involved

The following provisions of the United

States Constitution are involved:

First Amendment Right to Petition the

Courts for Redress of Grievances;

Fifth Amendment Right to Not Be

Deprived of Liberty or Property Without

Due Process of Law;

Fourteenth Amendment Rights to Not Be

Deprived of Liberty, Life or Property

Without Due Process And Equal Protection of

The Caw.

Jurisdiction

The Order of the United States Court of

Appeals for the Second Circuit denying per-

mission to reargue the order affirming the

dismissal of petitioner's complaint in the

United States District Court, Southern Dis-

trict of New York, Stanton, J., was entered

on October 26, 1990: The jurisdiction of

this Court is invoked under 28 U.S.C. Section

1254, subdivision (1).

Statement

Petitioner, on or about December 14, 198

was duly retained by respondent Hyman Raffe

("Raffe") for the limited purpose of acting as

substitute counsel for Raffe in an action re-

lated to the dissolution of Puccini Clothes, a

private company of which Raffe was one of the

founders-incorporators, as then counsel-of-recor

George Sassower ("Sassower") had been disquali-

fied from representing Raffe in Puccini related

matters.

On April 10, 1985 Sassower served a sum-

mons on Michael J. Gerstein, Esq. of the lawfirm

of Kreindler & Relkin, commencing a lawsuit unde

Index No. 9522/85. Service was had in the New

York County Supreme Court, outside the courtroom

of Justice Ethel Danzig, in the presence of Davi

Cook, Assistant Attorney General State of New

York, and respondent Donald Schneider, on behalf

of the Feltman, “aresh & Major lawfirm.

On April 11, 1985 respondent Schneider

on behalf of the said lawfirm, thereafter filed

a motion in the New York County Supreme Court

seeking to hold responds Raffe and Sassower

and petitioner in contempt with the false alle-

gation that petitioner had served him with a

summons in violation of an order of the New York

County Supreme Court, Ira Gammerman, J.

Respondent Schneider attached, as an exhi-

bit to his motion papers, me very same summons

that had been served on Gerstein by Sassower

as evidenced by Gerstein's initials on the

Summons.

Oral argument on the motion was scheduled

and had before respondent Justice Klein

("Klein") on May 29, 1985, the purpose of which

was to determine whether a fact finding evi-

dentiary hearing on the motion for non-summary

criminal contempt should be had. Instead, on

July 1, 1985 respondent Klein issued a ruling

and order finding petitioner guilty of criminal

contempt and sentencing him to 30 days in jail

and payment of a $25.00 fine to be paid to the

respondent Feltman, Karesh, Major & Farbman,

Esqs. ("FKMF"). WE HAD AN ORAL ARGUMENT ON A

MOTION, A "TAKING UNDER ADVISEMENT" BY THE

COURT, AN ODIOUS "FINDING OF CRIMINAL CONTEMPT"

(sic!), THEREUPON WITHOUT A SCINTILLA OF DUE

PROCESS OR EQUAL PROTECTION OF LAW!

There was no Special Proceeding anitiated

as mandated by law under Article 4 of the New

York Civil Practice Law and Rules; nor was an

evidentiary hearing with a full panoply of rights

for the accused convened. Petitioner was

jailed and made to serve the 30 déy jail term

for an alleged crime he did not commit.

As petitioner was not a named party in the

underlyina action, 9522/85, New York County,

he was not given lawful notice of the criminal

contempt proceedings and therefore tried without

the indispensible accusatory instrument that

Our Constitution requires. He was imprisoned

without trial, convicted without evidence,

without presentation of testimony under oath

and without cross examination of his accusers,

Judicially ordered to pay monetary fines to

private attorneys, and criminally tried by know-

ingly false affidavits.

On or about June 10, 1985 respcndent Donald

F. Diamond ("Diamond"), Special Referee of the

New York County Supreme Court issued a “report"

that he and respondents FKMF and Schneider

characterized as a judgment wherein petitioner

was assessed $12,500.00 in reeaka® "7 Reeeeadiats

FKMF and Schneider thereafter on September 17,

1985 took this knowinaly false “judgment" to

petitioner's bank and thereby restrained and

attached his bank account and created chaos and

Shame with petitioner's credit.

On or about May 15, 1986, the Appeltate

Division, First Judicial Department ruled that

the Diamond "paper" was indeed only a "report",

not a judgment.

Though-petitioner made numerous attempts

to Overturn the false conviction he was never

given access to the courts by way of an eviden-

tiary hearing to look into the underlying facts

and the contentions advanced by petitioner.

Every court has affirmed with no opinion --

either dismissed on appeal or denied certiorari.

On April 15, 1986 petitioner appeared

before Justice Ira Gammerman in the New York

State Supreme Court on a motion by respondents

FKMF and Schneider to again hold petitioner in

criminal contempt for allegedly violating the

January 23, 1985 Gammerman order through insti-

tuting an Article 78 proceeding to clear his

name and vacate the false conviction for con-

tempt. It was at that time that Justice Gammer-

man ruled that petitioner could sue FKMF and

Schneider and also go to the Grievance Committee

regarding their alleged unethical conduct.

Justice Gammerman made it clear to respondents

FKMF and Schneider that the January 23, 1985

order did not pertain to petitioner, especially

where he was suing individually and defensively.

On or about August 9, 1986 petitioner

commenced an action in the New York State

Supreme Court, County of New York, Index No.

17481/86 ,against respondents FKMF, Schneider,

Klein and others. Said action was assigned to

respondent David Edwards, Jr. ("Edwards").

Respondents FKMF & Schneider made a motion

to dismiss that action as being barred by the

Gammerman order and also to hold petitioner in

criminal contempt for once again allegedly

violating the Gammerman order. On or about

October 16, 1987, in secrecy and without notice

to petitioner, respondent Edwards, in a decision

ruled that the action was dismissed as being

barred by the Gammerman injunction order. The

motion to hold petitioner in contempt was held

in abeyance. To thts date no order was ever

Signed or entered to the knowledge of petitioner.

Nor has a judgment been made and entered.

Respondent Edwards knew of the April 15, 1986

ruling of Justice Gammerman at the time he

ruled to dismiss petitioner's casebefore him

(Edwards) and he also knew that the Gammerman

Order did not pertain to Polur as an individual.

Respondent Edwards did mt provide an eviden-

tiary hearina. He did not even provide oral

argument on the motion to dismiss.

On or about December 9, 1987 petitioner

commenced an action in the United State District

Court for the Southern District of New York

alleging violations of his civil rights under

42 U.S.C. Section 1983 against the respondents

FKMF, Schneider and Klein. Said action was

assigned to Hon. Mary Johnson Lowe, United States

‘District Court Judge. Respondents FKMF and Sch-

neider once again made a motion to dismiss on

the grounds that the action was barred by

collateral estoppel and by the January 23,

1985 Gammerman injunction order. Thereafter,

Judge Lowe ruled that petitioner was barred

from bringing the action against FKMF and

Schneider pursuant to the principies of colla-

teral estoppel pursuant to the New York State

Court ruling of respondent Cdwards that the

action was barred by the January 23, 1985 Gammer-

man injunction order. Nothing could be further

from the truth. Judge Lowe's ruling was a

ruling by judicial ukase. Judge Lowe ruled

arbitrarily without argument.

Petitioner filed a motion pursuant to

Federal Rules of Civil Procedure, Rule 59(e)

to alter, amend and vacate the judgment and

order of Judge Lowe. Within said motion peti-

tioner outlined the knowingly false assertions

made by Edward Weissman, attorney for FKMF and

Schneider, that the Gammerman order barred

petitioner from bringing an individual, defen-

Sive suit against FKMF and Schneider. Petitioner

also brought out the fact that Weissman was

present in the courtroom before Justice

Gammerman on April 15, 1986 when Justice

Gammerman explicitly and unequivocally ruled

that petitioner was authorized to bring suif

against FKMF and Schneider and that he could

also file grievances with the Grievance

Committee.

Judge Lowe, déspite the uncontrovertible

facts brought to her attention, once again

ruled against petitioner.

On or about April 22, 1988 petitioner read

an article in the New York Law Journal by

Martin Fox concerning what this seasoned law

editor characterized as the most litigated

case in New York State Court history. Also;

in tne same edition oF tne New York Law

Journal was a published "report" of respondent

Diamond concerning legal fees and other sinc-

tions to be imposed upon respondent Raffe in

regard to actions and proceedings commenced

in his (Raffe's) name by Sassower, without the

authority of Raffe. Within that "report" it

was noted that Raffe had signed a stipulation

which in effect, at the direction of respondent

Diamond,made respondent Diamond a New York State

Supreme Court Justice (sic!). It was through

the Martin Fox article and the published

"report’ of respondent Diamond in the New York

Law Journal that petitioner first gleaned the

intricacies of the plot to falsely uccuse him

(petitioner) of non-summary criminal contempt,

incarcerate him in order to “get him out of

the ptcture", then extort Raffe for what has

amounted to over Three Million ($3,000,000.00)

Dollars to this date.

Respondents! tactics were to "silence"

petitioner, the only honest attorney and

officer of the court involved in the matters,

and thereafter literally "rape" the Puccini

assets and extort Raffe, a shareholder in

Puccini, in order for Raffe not to go to jail

for the non-summary criminal contempt convic-

tion. Interestingly, all of the assets of

Puccini were divided amongst the attorneys

and accounting firm; including the receiver

Lee Feltman, and his lawfirm respondent FKMF.

NOT ONE CENT WENT TO ANY OF THE FOUR SHAREHOLDERS.

Petitioner thereafter filed suit in the

United States District Court for the Southern

District of New York, alleging not only Civil

Rights violations under 42 U.S.C. Section 1983,

but also RICO violations under 18 U.S.C. Sections

1961, et seqg., alleging Mail Fraud, Extortion,

Wire Fraud and Obstruction of Justice.

Said case was assigned to Hon. Louis Stanton,

United States District Court Judge, under docket

no. 88-2514. Judge Stanton, without granting

a hearing or even oral argument on a motion by

respondents FKMF and Schneider to dismiss,

did dismiss petitjoner's claims and also issued

an order barring petitioner from further suing

respondents in the Federal courts.

Said order of dismissal was made and entered

on July 17, 1985. Judament was entered on

July 21, 1989.

Petitioner filed notice of appeal with

the United States Court of Appeals for the

Second Circuit on or about August 29, 1989.

Said appeal was orally argued before a three-

judge panel of that court on or about May 29,

1990. That court affirmed the District Court

order of dismissal on or about August 22,

1990.

Petitioner thereafter filed a motion for

reargument before the Court, en banc.

Said motion was denied on or about October

26, 1990. The present petition for Certiorari

to this Court thereafter ensued.

Preliminary Statement for Granting the Writ

THE FEDERAL COURTS BELOW HAVE

USED THE FULL FAITH AND CREDIT

STATUTE TO FURTHER DEPRIVE PETI-

TIONER OF HIS FIRST AMENDMENT

RIGHT TO PETITION THE COURTS

FOR REDRESS OF GRIEVANCES

Initially, and throughout the period from

April 1985 to the present date, there have been

multiple actions by the private attorney-respon-

dents herein ‘n tandem with Justice Klein and

Justice Edwards and Appellate Court acquiesence

which effectively prevented your petitioner

from exercising his Constitutional right to

petition the courts for redress of grievances.

The Constitutional right to petition the

Courts would indeed be a hollow right if the

right to be heard, under oath, tu face your

accuser(s) in a criminal action or civil

matter, as herein, and every other fundamental

safeguard included in our Bill of Rights, is

not commensurate with and attendant to the

Right to Petition.

It will be conclusively demonstrated here=

jinafter that the Constitutional riaht to.

petition the Courts has been rendered a

hollow “right" where, as herein, the right

to be heard has been still-born; it never

achieved viable status. The Bill of Rights

safeguards were wantonly abjured and steal-

thily withheld. Furthermore, the Full Faith

and Credit Statute has been wrongfully used

herein to further the cause of violating

petitioner's rights to petition the courts,

in stark violation of this Court's mandated

precedents in Migra v. Warren City School

District Bd. of Education, 465 U.S. 75

(1984) and Kremer v. Chemical Construction

Corp., 456 U.S. 75.

The "Right to Petition for Grievances"

became and consistently remained a mere

footnote to history insofar as the Courts of

the State of New York and the U.S. District

Court for the Southern District of New York

and the U.S. Court of Appeals for the Second

Circuit are concerned.

The Circuit Court of Appeals below upheld

Judge Stanton's dismissal in the District

Court for the Southern District on the grounds

that petitioner's First and Third Claims

were barred by Res Judicata and Collateral

Estoppel. The Second Circuit Court went on

to cite this Court's decision,Migra v. Warren

City School Dist. Bd. of Education, 465 U.S.

75, 81 (1984),in support of its affirmance

of Judge Stanton's ruling. However, close

attention to what this Court's ruling therein

holds reveals that decision is in petitioner's

favor totally.

In discussing preclusion law and the Full

Faith and Credit Clause, this Court, in Migra,

Supra, stated:

It is now settled that a federal

court must give to a state-court judg-

ment the same preclusive effect as

would be given that judgment under

the law of the State in which the

judgment was rendered. In Allen v.

McCurry, 449 U.S. 90 (1980),

this Court clearly enunciated:

This

"Indeed, though the federal courts

may look to the common law or to

the policies supporting res judicata

and co!lateral estoppel in assesing

the preclusive effect of decisions

of other federal courts, Congress

has specifically required all]

federal courts to give preclu-

sive effect to state-court judg-

ments whenever the courts of the

State from which the juddments

emerged would do so..."

coon oe ee, 202 $.Ct., at 415.

Court, in Migra, supra, went on to

hoid that "Ohio state preclusion law is to be

applied to this case. Prudence also dictates

that it is the District Court, in the first

instance,

pret Ohio prectusion law and apply it."

at 81.

as U.S...

This Court's precedent required the Circuit

not this Court, that should inter-

supra,

Court to remand the case back to Judge Stanton

in the District Court

in order for Judge Stan-

ton to apply New York State preclusion law to

the case at bar.

New York State law requires that two basic

{

elements be satisfied in sebes for collateral

ee to apply: 1) the identity of an issue

necessarily ruled in the prior action with one

which is decisive of the present action, and

2) that there was a full and fair opportunity

to contest the issue in the prior action (see

Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.

2d 49, 423 N.E.2d 807).

New York law goes further to state that

“collateral estoppel effect will only be given

‘to matters ‘actually litigated and determined'

in a prior action," Kaufman v. Eli Lilly & Co.,

65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 589

(citing Restatement (second) of Judaments, sec.

27, quoted in Koch v. Consolidated Edison Co.,

62 N.Y.2d 548. (other citations omitted) "If the

issue is not actually litigated, there is no

identity of issues between the present action

and the prior determination. An issue is not

actually litigated if, for example, there has

been a default, a confession of liability, a

failure to place a matter in issue by proper

pleadings or even because of a stipulation."

Kaufman, supra, at 457, 492 8.¥.$.2d at 569.

i 18

“ ——

In the instant matter, the jurisdictional

failures in the Klein Court, together with the

pleadings failing to conform to CPLR Section

401, et seq., and the attendant lack of a due

process hearing and any litigation at all, no

issues at all were ever litigated. In that re-

Qard there can be no identify of issues.

The second prong of the collateral estoppel

test is the full and fair opportunity to liti-

gate the issues. It has already been demon- ~-

Strated conclusively, without there ever being

a@dispute in any court, that petitioner never

had any opportunity to litigate any issue, much

less a full and fair opportunity.

New York €ourts have fashioned their own

test to determine whether a full and fair hear-

ing was had. New York requires first, that

"where the party againt whom collateral estop-

pel is asserted claims that he was not afforded

a full and fair opportunity in the prior admini-

Strative proceeding to contest the decision now

Said to be controlling, he must be allowed to

do su." Ryan v. New York Telephone Co., 62 N.Y.

2d 494, at 501.(emphasis added) The Ryan Court

tontinued:

A determination whether the first action

Or proceedina genuinely provided a

> full and fair opportunity requires con-

Sideration of the ‘realities of the

(prior) litigation’, including the con-

text and other circumstances which***

may have had the practical effect of

discouraging or deterrina a party from

fully litigating the determination which

is now asserted against him."(People v.

Plevy, 52 N.Y.2d 58, 65, 436 N.Y.S.2d

224.) Among the specific factors to

be considered are the nature of the

forum and the importance of the-claim

in the prior litigation, the incentive

to litigate and the actual extent of

litigation, the competence and expertise

of counsel, the availability of new

evidence, the differences in the appli-

cable law and the foreseeability of

future litigation. (Gilberg v. Barbieri,

53 N.Y¥.2d. 282, 292; Schwartz v.Public

Administrator, 24 N.Y.2d 65, 72.

The Ryan Court, after applying the foregoing

rules of law to that case, went further: It

Stated that “an examination of the prior pro-

c@eding itself shows that both requisite cri-

teria, the identicality and decisiveness of

the issues and the opportunity for a full and

fair hearing have been satisfied." Ryan, supra,

at 502.

: The District Court Judge, Stanton, did not

apply New York law in determining the res judi-

cata and collateral estoppel issues in order to

assess F.°? Faith and Credit protections, nor

did the Circuit Court of Appeals below require

it to do so, as mandated by this Court in Migra,

s¥pra, and Allen v. McCurry. The criminal con-

tempt "proceeding" before Justice Klein has

never been examined. Such an examination would

reveal the total abnegation of the Constitution

and the rights of petitioner hereir. There,

Of course, never was a hearing of any sort --

solely an oral argument on a motion to hold

petitioner in “criminal contempt" of court.

Justice Kiein “reserved decision". Some five

weeks after that May 29, 1985 "oral argument,

Justice Klein had served a written finding

Of criminal contempt upon petitioner, absent

j a "finding" (sic!) of quilt

®beyond a reasonable doubt", inter alia. Ryan,

Id., unlike petitioner, did have his full and

fair opportunity to litigate the issues in his

¢ase. He did so, testified himself ana cross-

examined adverse witnesses through his union

representative!

Therefore, as this Court stated in Migra,

dudge Stanton had a duty to not only assess New

York preclusion law indeterminina the Full Faith

and Credit question, but to also apply it by

Scrutinizing the record (sic!) of the non-

Summary criminal contempt proceeding to deter-

Mine whether the identicality of an actual issue

litigated is present; and whether petitioner

had a full and fair opportunity to litigate said

issue if found therein. Such searching of the

record was mandatory, where petitioner had

claimed under oath that he was not afforded any

Opportunity - much less a full and fair oppor-

tunity to litigate an issue. (Ryan, supra, 62

N.Y.2d at 501) And petitioner has demonstrated -

Without any rebuttal - that such was the case.

Petitioner has satisfied his burden of "es-

Aablishing the absence of a full and fair -

for any!) - opportunity to litigate the issue

Gn a prior action or proceeding." Schwartz

Public Administrator, supra, at p.73, 298

W.Y.S.2d 955.

Further analysis of New York preclusion

Jaw brings us to a case virtually on point with

the case at bar. In Vavolizza v. Krieger,

B3 N.Y.2d 351, 352 N.Y.S.2d 919, at 923, the

Court of Appeals stated:

;

i We held recently in S.T. Grand, Inc.

v. City of New York, 32 N.Y.2d 300,

| 344 N.Y.S.2d 938, that a criminal con-

viction could serve as collateral

estoppel insofar as the same issues

were revived in subsequert civil

litigation. Emphas‘s, of course,

was placed on the procedural safequards

accorded defendant and the high degree

of proof required in order to convict

after trial. (emphasis supplied)

If Judge Stanton would have properly ana-

lyzed and applied New York preclusion law he

Ould have examined the record of the non-

Summary criminal contempt proceeding before

Justice Klein adn found it to be bereft of

any and all procedural safeguards required by

ew York and United States law and Constitutions.

The Federal Courts have been consistent

in the proper application of the Full Faith

and Credit Clause. Judge Carter, SDNY, in

Friedman v. N.Y.C. Dept. of Housing and Develop-

Ment Administration, 688 F.Supp. 896, 901, it is

Stated:

) It has long been recognized that "a

i judgment is entitled to full faith and

: credit -- even as to questions of

jurisdiction -- when the second court's

inquiry discloses that those questions

have been fully and fairly litigated and

finally decided in the court which ren-

dered the original judgment."

This was not done herein by Judge Stanton,

or any other court. Every court has failed and

All other Circuit Courts of Appeals have

Judiciously followed the mandates of this Court.

;

j 24

The Second Circuit Court of Appeals has

ever followed precedent Stare Decisis until now

when it has deliberately chosen to defy this

court’ s rulings. In Wilder v. Thomas, 854 F.2d

605 ( (1988), in speaking about this Court's

ling in Kremer v. Chemical Construction Corp.,

456 U.S. 75, The Second Circuit Court of Appeals

stated:

The Court emphasized that in order to

qualify for full faith and credit under

Section 1738, state proceedings need

only satisfy the requirements of due

process and be sufficient to be enti-

tled preclusive effect in the courts

of that state. Id. at 481, 102 S.Ct.

at 1897-98.

In the case at Bar the Second Circuit to-

tally ignored this Court's precedent rulings.

Likewise, in Ruiz v.Comm'r of Dept. of

Transp. of City of New York, 858 F.2d 898(1988)

the Second Circuit cited Gramatan Home Investors

Corp. v. Lopez, 46 N.Y.2d 481, 485, in stating

that "The res judicata rule in New York is as

foliows: (A)s to the parties in a litigation

j 25

those in privity with them, a judgment on

merits by a court of competent jurisdiction

conclusive (in any subsequent action) of

the issues of fact and questions of law neces-

sarily decided.'" (emphasis added)

There is no judgment on the merits herein!

Merely a ruling by Judicial Ukase. Examination

of the underlying record of the proceeding, which

Judge Stanton was required to do, would have

vealed that there was no judgment on the

rits to afford res judicata effect.

The unlawful detention and incarceration of

ix,

petitioner was never litigated through a due

process hearing with all the procedural safe-

guards required by the U.S. Constitution.

This Court, in Townsend v. Sain, 372 U.S. 293

(1963) addressed this issue squarely:

"State prisoners are entitled to relief

on federal habeas corpus only upon pro-

ving that their detention violates

the fundamental liberties of the person,

safeguarded against state action by the

Federal Constitution. Simply because

detention so obtained is intolerable,

the opportunity to be heard, to argue

and present evidence, must never be

totally foreclosed. See Frank v.

Mangum, 237 U.S. 309, 345-350

dissenting cpinion of Mr. Justice Holmes)

:a eee een "at 757. "Where the facts

are in dispute, the federal court in

habeas corpus must nold an evidentiary

hearing if the habeas applicant did not

receive a full and fair evidentiary

hearing in state court, either at the

time of the trial or in a collateral

proceeding. In other words a federal

evidentiary hearing is required unless

the state-court trier of fact has after

a full hearing reliably found the rele-

vant facts." at 757. (emphasis added)

"This Court has consistently held that

state factual determinat.ons not fairly

: cupported by the record cannot be con-

clusive of federal rights. Fiske vy.

; Kansas, 274 U.S. 380, 385; Blackburn v.

Aidbama, 361 U.S. 199. Where the fun-

4 damental liberties of the person are

claimed to have been infringed, we

: carefully scrutinize the state-court

record." at 759.

"However, the obligation of the Federal

District Court to scrutinize the state

court findings of fact goes farther than

this. Even if all the relevant facts

were presented in the state-court

hearing, it may be that the fact-find-

ing procedure there employed was not

adequate for reaching reasonable

correct results. If the state trial

judge has made serious procedural errors

(respecting the claim pressed in federal

habeas) in such things as the burden of

proof, a federal hearing is required.

Even where the procedure employed does

not violate the Constitution, if it

appears to be seriously inadequate for

the ascertainment of the truth, 1% is

~ 27

the federal judge's duty to disregard

the state findings and take evidence

anew. Of course, there are procedural

errors so grave as to require an appro-

priate order directing the habeas

applicant's release unless the State

r grants a new trial forthwith. Our

present concern is with errors which,

although less serious, are nevertheless

grave enough to deprive the state evi-

dentiary hearing of its adequacy as a

means of finally determining facts

upon which constitutional rights depend.’

at 759 (emphasis added)

This Court's ruling makes it clear that the

Klein ruling does not deserve recognition of

faderal protection in determining the facts con-

tested herein by petitioner. Judge Stanton was

réguired to make inquiry into the record of

that proceeding, at the least, to determine what

DR ognitten, if any, Klein"s order should be

ecorded in this action.

This Court, moreover, in Kremer, supra,

456 U.S. at 482, stated that Congress has

specifically required a!1 federal courts to

Bve preclusive effect to state-court judg-

;

nts whenever the courts of the State from

thich the judgments emerged would do so,

mphasis added)

iting Allen v. McCurry, 449 U.S., at 96, this

urt went on, in Kremer, supra, to state that

he State must, however, satisfy the applicable

fequirements of the Due Process Clause. A

State may not grant preclusive effect in its

own courts to a constitutionally infirm judg-

Ment, and other state and federal courts

Bre not required to accord full faith and credit

0 such a judgment". 56 U.S. at 482.

Such is the case herein. The New York

tate courts cannot and have not given pre-

pusive effect to either the Klein “judgment”

+ the Edwards "order". The doctrines of

gollateral estoppel and res judicata have

Never been applied to or used against petitioner

in the New York courts. The New York courts

have just never granted a hearing of any sort,

Or, where on appeal, written an opinion of any

Sort addressing themerits of petitioner's

Claims. Therefore, the Due Process required

by the Fifth and Fourteenth Amendments to the

United States Constitution has not been fur-

‘

ne a ee * H — . ~ ee ee aii

o ee ai LS ———s a ls = ™ e. : el ian ed paw re ve

— = na = - es re pos Se a ah ae we sgl a “is = i a ree a ea =

— “ Eg, ar at oy aren ee? SY A ge eg ee. ee are ee Saw ie

“ished to petitioner herein. In that regard,

Full Faith and Credit under 28 U.S.C. Section

1738 is not available to the allegedly valid

Klein and Edwards rulings.

Such application of the Full Faith and Cre-

dit Statute to such constitutionally infirm

edicts serves only to further deprive petitioner

of the First Amendment right to petition the

court for redress of grievances that he ini-

tially complained of in both the State and

fiow Federal courts. The application of the

Full Faith and Credit Clause to the Klein and

Edwards rulings herein by Judge Stanton, and

its affirmance by the Second Circuit Court of

Appeals, with the attendant injunction against

further suing the respondents in the federal

} court, served to unlawfully slam the doors of

4411 courts, once and for all, on petitioner,

yunder the disguise of finally bringing to a

ihalt the Puccini litigation, characterized as

the most litigated case in New York State Court

history:

The New York State courts, through a con-

ivance, and now the federal courts,have

ongfully deprived petitioner of his First

endment right to petition the courts. Said

‘@ontrivance is based upon the utter hatred of

Diwrce Sassower, a since-barred attorney who at

Gre point sued every New York County Supreme

Bourt justice, every justice of the Appellate

Division, First Department, and all of the

dudges of the Southern and Eastern Districts of

Phe United States District Court. PETITIONER

Ts _NOT SASSOWER!

The opinion of the Second Circuit Court of

Bopeals was authored by Judge Min@r, the same

dudge who sat on the panel that reversed United

States District Judge Edelstein after Judge Edel-

$tein granted a petition for a writ of habeas

— in favor of Sassower. (see Appendix)

he judiciary in the State of New York detests

$assower. The private-attorney respondents

Merein have always attempted to make petitioner

and Sassower one and the same.

This Court, in Boddie v. Connecticut, 402

0.S. 371, stated:

Prior cases establish, first, that due

process requires, at a minimum, that

absent a countervailing state interest

of overriding significance, persons

forced to settle their claims of right

and duty through the judicial process

must be given a meaningful opportunity

this Court voiced the doctrine that

"(w)herever one is assailed in his per-

son or his property, there he may

defend." Windsor v. McVeigh, 93 U.S.

274, 277 (1876). See Baldwin v. Hale,

1 Wall. 223 (1864); Hovey v. Elliot,

167 U.S. 409 (1897). The theme that

"due process of law signifies a right

to be heard in one's defense," Hovey

v. Elliot, supra, at 417. has continu-

ally recurred in the years since Baldwin,

Windsor and Hovey. Although "(m)any

controversies have raged about the

cryptic and abstract words of the Due

Process Clause," as Mr. Justice Jackson

wrote for the Court in Mullane v. Central

Hanover Trust Co. 339 U.S. 306 (1950),

"there can be no doubt that at 4 mini-

to be heard. Early in our jurisprudence,

mum they require that deprivation of

life, liberty or property by adjudi-

cation be preceded by notice and oppor-

tunity for hearing appropriate to the

nature of the case." Id., at 313.

vere ee In short, “within the limits

of practicability," id., at 318, a

State must afford to all individuals

a meaningful opportunity to be heard

if it is to fulfill the promise of the

Due Process Clause. 6

Boddie v. Connecticut, 401 U.S. at

377-379

This Court went on further to state:

;

Our cases further establish that a sta-

tute or a rule may be held constitution-

ally invalid as applied Pren it Operates

to deprive an individual of protected

' rights although its genera! validity as

a measure enacted in the leaitimate

! excercise of state power is beyond

a rere

No less than these rights, the right to

a meaningful opportunity to be heard

within the limits of practicality, must

be protected against denial by par-

ticular laws that operate to jeopar-

dize it for particular individuals.

Boddie, supra, at 379-380.

The courts are the only avenue available

to petitioner for restoration of his good name

and tor divesting himself of the false, unlawful

and unconstitutional criminal conviction that

has scarred him for life.

This Constitutionally protected avenue of

redress is tortiously being closed to petitioner

through the misapplication of the Full Faith

and Credit statute and refusal to honor deference

to the precedent case law rulings of this Court.

Respectfully, this Court should reverse the

erroneous affirmance by the Circuit Court for

the Second Judicial Circuit hereinbelow and

send an unmistakable message that this peti-

tioner's inviolate Constitutional right to

access to the Courts must be honored and

adhered to.

CONSTITUTIONAL SAFEGUARDS

WERE ESCHEWED FOR PETITIONER

HEREIN MANDATING REVERSAL

OF THE COURT BELOW

The rights to confront and cross-examine

witnesses and to call witnesses in one's own

behalf have long been recognized as essential

to due process. Mr. Justice Black, writing for

the Court in In Re Oliver, 333 U.S. 257, 273

(1948), identified these starkly absent rights

not

/accorded petitioner, as among the minimal

essentials of a fair trial:

"A person's right to reasonable notice

of a charge against him, and an oppor-

tunity to be heard in his defense -

a right to his day in court - are basic

to our system of jurisprudence; and

these rights include, as a minimum, a

right to examine the witnesses against

him, to offer testimony, and to be

represented by counsel.”

Instructively, not a sinale cited bedrock

safeguard was accorded petitioner! There simply

never was a "hearing" of any kind afforded

him; merely a motion heard on oral argument by

Justice Klein to hold petitioner, Sassower and

Raffe in “criminal contempt of court!" The

notice of motion, Index No. 9522/85, New York

County Supreme Court nowhere had the name of

Sam Polur, as plaintiff or defendant in that

cause of action! See, also, Morrisey v.

Brewer, 408 U.S. 471, 488-489, 33 L.Ed.2d

484, 92 S.Ct. 2593 (1972); Jenkins v. McKeithen,

395 U.S. 411, 428-429, 23 L.Ed.2d 404, 89

S.Ct. 1843 (1969); Specht v. Patterson, 386 U.S.

605, 610, (1967). Both of these elements are

implicated in the case at Bar, and more.

It is hornbook law that few riahts are

more fundamental than that of an accused to

present witnesses in his cwn defense. Webb v.

Texas, 409 U.S. 95 (1972); Washington v. Texas,

388 U.S. 14 (1967). PETITIONER HEREIN NOT ONLY

WAS PREVENTED FROM PRESENTING WITNESSES IN HIS

OWN BEHALF, PREVENTED FROM CROSS-EXAMINING

ANYONE -- BUT HE WAS DEPRIVED OF THE RIGHT TO

TAKE THE STAND IN HIS OWN RIGHT, WHICH HE AVIDLY

SOUGHT AND PROFERRED OVER THE DISMAL SIX-YEAR

INTERREGNUM WHEREIN HE HAS FOUGHT THIS OBSCENE

FINDING (SIC!) OF CRIMINAL CONTEMPT.

The Sixtn Amendment gives a criminal defen-

dant the right to "be confronted with the wit-

nesses against him." This language "comes to

us on faded parchment." Harlan, J., concurring,

in California v. Green, 399 U.S. 149, 174

(1970). That lineage was traced back to the

beginnings of Western legal culture. It has

been said that a form of confrontation was

recognized in England well before the right to

jury trial. Pollitt, ‘The Right of Confronta-

tion : Its History and Modern Dress, 8 J.Pub.L.

381, 384-387 (1959).

Many of this Court's assessments of the

Confrontation Clause have involved either the

admissibility ofout-of-court stavements, see,

2.g., Ohio v. Roberts, 448 U.S. 56 (1980);

Dutton v. Evans, 400 U.S. 74 (1970), or restraints

on the scope of cross-examination. Davis v.

Alaska, 415 U.S. 380 (1974). This Court has

never doubted that the Confrontation Clause

guarantees the defendant a face-to-face meeting

with witnesses appearing before the trier of

fact. Kentucky v. Stincer, 482 U.S., 370,748,

1749-750 (Marshall, J., dissenting).

A CASE OF FIRST IMPRESSION

Mere, entombed in a "cannot-be-believed"

legal warp, the Circuit Court has veteued to

recite that petitioner did not have a single

hearing, was not afforded a scintilla of due

rocess, was subjected to a "Court" functioning

without subject-matter or in personam jurisdic-

ion. These unconstitutional actions come to

his Court's attention on an obstructed slate.

ighlights of petitioner's brief-in-chief in

the Court below are as follows:

(a) Imprisonment without trial;

(b) Conviction without accusatory

instrument;

introduced;

(d) Conviction without presentation

of evidence;

(e) Conviction without right to con-

frontation;

(f) Criminal monetary fines made

payable to private-attorney liti-

gants;

(g) Criminal prosecution solely by

private .attorneys-litigants for

monetary gain, and not by the Sovereign.

(h) Criminal "trial" solely by affidavit.

(i) Criminal jurisdiction asserted over

a non-party to a civil proceeding,

to wit, Index No. 9522/85, without

service of process upon said non-

party.

Notably, petitioner was denied and deprived

of elementary Constitutional protections granted

to the meanest criminal, to the most vicious

and depraved amongst us. As a Social Polity we

rightly pride ourselves on each accused indi-

vidual having his or her fundamental rights

scrupulously protected. But the State's Consti-

tutional Tribunal was mute while a member of

its own Bar is publicly pilloried and jailed

without indictment, hearing, accusation, con-

frontation, counsel or evidence being submitted

to a Judicial Tribunal.

Petitioner's"crime" was indigenous to the

Totalitarian State: Representing a then-unpopu-

lar client; working with an unpopular and

derided colleague, since disbarred. He became

unwittingly, the dupe of both client and

colleague as they sought to enbroil Petitioner

in the dead sins of years-long litigation that

petitioner became involved in as a lawyer at

"five minutes to midnight." NEARLY FIVE YEARS

AFTER THE RAFFE CASE WAS COMMENCED:

There is not a single case in the history

of New York State jurisprudence where a criminal

defendant was incarcerated without a charae,

without a trial, without presentation of evi-

dence, without testimony under oath, without

even the feeble confrontation of the least pre-

pared pro se defendant.

It is believed this case is a case of

first impression throughout the Unites States

of America in that a practicing Attorney is

"convicted" of a "criminal act" (sic!) solely

On the basis of a motion orally argued before

a sitting Justice of the State Supreme Court;

a Justice who ruled in direct derogation of this

Court authority set out in Bloom v. Illinois,

391 U.S. 192, 201 (1968)., inter alia.

LACK OF SUBJECT MATTER

JURISDICTION RENDERS ANY

AND ALL ADVERSE RULINGS

NUGATORY, AB INITIO

This Court ruled directly to the issue

herein regarding subject-matter jurisdiction

in Catholic conference v. Abortion Rights Mobi-

lization, 487 U.S. 722. Assuredly, the Court's

ruling in re the District Court lacking subject-

matter jurisdiction (in this case it is the

Klein "Court") in the underlying suit could not

constitutionally be abjured. That case and

this case rely on the precise Constitutional

underpinninas: (487 U.S., at 724)

The Conferences objected to issuance

of the process, arguing, inter alia,

that the District Court lacked subject-

matter jurisdiction in the underlying

suit. The Court of Appeals for the

Second Circuit rejected this argument,

ruling that g nonparty witness’ juris-

dictionai challenge is limited to a

claim that the District Court lacks

even colorable jurisdiction, a stand-

ard not met here. We granted certior-

ari to resolve whether a nonparty wit-

ness may defend against a civil con-

tempt adjudication by challenaing the

subject matter jurisdiction of the

district court. 484 U.S. 975 (1987).

We hold the non party witness may raise

such a claim, and now reverse.

(emphasis added)

This Court wrote directly to the issues

herein raised, even although our case is a

criminal

contempt in lieu of a mere civii con-

tempt impingement on fundamental rights. 487

at p. 76 stated it well:

...the subpoena power of a court cannot

be mre extensive than its jurisdiction.

It follows that if a district court does

not have subject-matter jurisdiction

over the underlying action, and the

process was not issued in aid of deter-

mining that jurisdiction, then the pro-

cess is void and an order of civil

contempt based on refusal to honor it

must be reversed. As we observed in

United States v. Morton Salt Co., 338

U.S. 632, 642 (1950), "(t)he judicial

Subpoena power not only is subject to

specific constitutional limitations;...

but also is subject to those limita-

tions inherent in the body that issues

them because of the provisions of the

Judiciary Article of the Constitution."

Therefore, a nonparty witness may attack

a civil contempt citation by asserting

that the issuing court lacks jurisdic-

tion over the case. ...The order finding

a nonparty witness in contempt is appeal-

able notwithstanding the absence of a

final judgment in the underlying action.

United States v. Ryan, 402 U.S. 530-532

(1971); Cobbledick v. United States,

309 U.S. 323, 328 (1940).

This Court (p. 77 of 487 U.S.) spoke even

more directly to the issues before the Court:

The challenge in this case goes to the

subject-matter jurisdiction of the court

and hence its power to issue the order.

The distinction between subject-matter

jurisdiction and waivable defenses is

not a mere nicety of legal metaphysics.

It rests instead on the central princi-

ple of a free society that courts have

finite bounds of authority, some of con-

stitutional origin, which exist to pro-

tect citizens from the very wrong asserted

here, the excessive use of judicial

power. The courts, no ljiess than the

political branches of government, must

respect the limits of their authority.

(emphasis added)

Finally, in conclusion (487 U.S., at 80):

Accordingly, on remand, the Court of

Appeals must determine whether the

District Court had subject-matter juris-

diction in the underlying action. If

not, then the subpoenas duces tecum

ARE VOID, and the civil contempt

citation must be reversed "in its

entirety." Mine Workers, supra, at

295. (Emphasis added)

Assuredly, the case at Bar presents a

pronouncedly more naked assertion of raw Judi-

cial power, which must be reversed “in its entirety",

Id., for the integrity of Constitutional balance

and viability! Kamp v. Kamp, 59 N.Y. 212

(1874); CPLR 5015, et seq.; Matter of Levy,

37 N.Y.2d 279 (1983), which speaks to inter-

sticial components of a disciplinary hearing

for an attorney: "“...it cannot be said to be

unreasonable or unfair to preclude the attorney

relitigating an issue when precisely the same

issue has been resolved against him in

another proceeding to which he was a party in

which the standard of proof called for the

highest quantum - beyond a reasonable doubt

(cf. Matter of Lynch, 227 App.Div. 477, 480 - )

and in which rigorous safeguards were imposed

to insure against an unjust conviction (S.T.

Grand, Inc. v. City of New York, 32 N.Y.2d

300, 304) (all emphasis added). Herein, of

course,petitioner was not a party TO THE ACTION

AT LAW WHERE HE WAS NOT PLAINTIFF NOR DEFENDANT!

No guilty "finding" was articulated_on proof

"beyond a reasonable doubt." Not only were

"rigorous safeguards" not interposed by Justice

Klein, there simply were none - even absent

adjectival support of "rigorous"! The unrebut-

ted litany Of total abnegation of all procedural,

SUBSTANTIVE, Constitutional safeguards, where

the “Order of Criminal Contempt" was funda-

mentally and jurisdictionally deficient

Kamp, Id., spoke unerringly of the under-

lying "motion" herein - the only Judicial act

by Justice Klein afforded petitioner - and the

unconstitutional dishable the Court occasioned

by his stealthy “ruling" and "finding" of

criminal

contempt against petitioner premised

on nothing more than an oral argument before

him:

The appearance or non-appearance of

the defendant in pursuance of a notice

of motion for some order against him,

could not and did not give the court

jurisdiction, and certainly an appearance

and contestina the right of the plain-

tiff to any relief in the proceedings,

as was done here, did not give juris-

diction. (emphasis added) (59 N.Y.,at

p. 216)

The want of jurisdiction makes the

order and judgment of the court, and

the record of its action utterly void

and unavailable for any purpose, and

the want of jurisdiction may always

be set up collaterally or otherwise.

( . 242 of. 59 -. B.Y~3.

...judgments by courts having no juris-

diction are as no judgments; and bind

no one. (emphasis added)

In the instant matter New York State Judi-

ciary Law, Section 750-753 requires a full due

process hearing to determine non-summary cri-

minal contempt charges. In no other way can a

court acquire jurisdiction to hear and resolve

non-summary criminal contempt charges sought

against one not a party to the underlying civil

action as petitioner was herein. See, also,

New York Civil Practice Law and Rules, Article

4; Douglas v. Adel, 269 N.Y. 144; Board of

Education v. Zeluck, 60 Misc.2d 1090; Billinasley

v. Better Business Bureau, 232 App.Div. 227,

249 N.Y.S. 584 (1st Dept. 1931), citing Pitt

v. Davison, 37 N.Y. 235; CPLR 403(c)&(d).

Thus, without strictly adhering to the

Substantive and procedural requirements and

safequards as provided by New York State Law

for bringing on a non-summary criminal contempt

proceeding, no jurisdiction is obtained for

the court to hear and determine, as it must,

and no valid judgment can issue where a court,

as herein, ruled in secrecy without even the

pretense of honoring basic rights.

In the above instance, violence is done to

the Due Process and Equal Protection of the Laws

provisions of the United States Constitution.

Bloom v. Illinois, 391 U.S. 192 (1968). The

alleged conviction~for non-summary criminal con-

tempt cannot stand. Nor can the rulings of res

judicata, collateral estoppel and full faith and

credit remain herein. They have no jurisdictional

or other indispensible leaal basis upon which to

adhere.

Had the District Judge followed Migra, supra,

and had an indispensible HEARING, de minimus,

he would have learned the criminal contempt "“con-

viction" was barren of any Constitutional rights:

Imprisonment without trial.

No accusatory instrument.

No evidence introduced.

)

) Conviction without any confrontation.

) Criminal "conviction" solely by affidavit.

) No personal jurisdiction obtained.

) No subject matter jurisdiction achieved.

)

Criminal! jurisdiction unlawfull asserted

Over a non-party to a civil proceeding,

merely premised on an oral argument.

All of the above Rule Without Law was attained

through active participation, guidance and con-

spiratorial joinder by Justice Alvin F. Klein,

then a sitting Justice of New York State Supreme

Court, County of New York.

—

THERE CAN BE NO JUDICIAL

IMMUNITY NOR DERIVATIVE

IMMUNITY FOR JUSTICE KLEIN

AND THE PRIVATE-ATTORNEY

RESPONDENTS FOR ACTS DONE

OUT SIDE OF HIS JUDICIAL

ORBIT, IN THE ABSENCE OF

JURISDICTION AND FOR

CRIMINAL ACTS DONE IN

FURTHERANCE OF RICO

VIOLATIONS OF USING THE

NEW YORK SUPREME COURT

AS A CRIMINAL ENTERPRISE

Justice Klein did not have subject-matter

jurisdiction of the non-summary criminal con-

tempt so-called "motion" placed before him. He

knew this, as a matter of law, when the pro-

ceeding was initially brought before him. How-

ever, he proceeded to act outside of his judi-

cial orbit by conspiring with respodents FKMF

and Schneider to unlawfully jail petitioner

because petitioner was the only henest person

involved in the Puccini litigation. Petitioner

was involved for a very limited amount of time

and for a very limited purpose; to defend one

trial for Raffe, as a substitute attorney for

Sassower, before Justice Shackman of the New

York County Supreme Court.

Thereafter, it was evident, petitioner as

vigorous plaintiff, was singled out by Klein,

FKMF and Schneider and taraeted for the unlawful

contempt incarceration in order that they could

continue, interupted, their criminal enterprise

which included the legal extortion of Raffe.

Io this date Raffe has not been made to serve the

Schneider and the Kriendler & Relkin firm have

extorted, allegedly as legal fees, some

$2,500,000.00 from Raffe in order for Raffe

to stay out of jail. RAFFE PAID SOME $2.5

MILLIONS. RAFFE STAYED OUT OF JAIL. THE

"BARGAIN"WAS KEPT.

AS early as March 11, 1986, Justice

Gammerman of the New York County Supreme

Court issued an order that stated that any

litigation filed in the name of Raffe or A.R.

Fuels, Inc. by Sassower,did not have to be

& Relkin,

responded to by FKMF and Kriendler/and were to

' be treated as if they were null and void as a

matter of law. Nevertheless, these criminal

attorneys continued to move for attorneys fees

;

for actions commenced by Sassower allegedly on

behalf of Raffe and, as late as March 22, 1988,

in a written opinion by defendant Diamond pub-

lished in the New York Law Journal, stood to

collect an additional $170,000.00 in legal fees

for the same reasons.

To date, there has not been a court order

permitting such larceny or permitting Raffe to

remain free from serving the 30 day jail sentence

for criminal contempt.

Justice Klein, in the criminal contempt

matter, did not have subject-matter jurisdiction

Or in personam jurisdiction and therefore acted

outside his judicial orbits in jailing peti-

tioner and assisting in the extortion of Raffe

through the use of his position as a New York

State Supreme Court Justice. The extortion

and decision to untawfully jail Petitioner was

done in secret, for which no immunity exists.

"A Judge's private, prior agreement to

decide in favor of one party is not a "judicial

act" for purpose of judicial immunity." Rankin

» v. Howard, 9th Cir., 633 F.2d 844 (1980).

In the present matter, Justice Klein's out-

of-court agreement to find and hold petitioner

in criminal contempt and jail him in order to

extort funds from Raffe was clearly not a judi-

cial function and does not merit judicial

immunity. Likewise, Justice Klein's lack of

jurisdiction to act upon the criminal contempt

application, as well as the totally erroneous

rulings made upon that application, were brought

to his attention numerous times. The law in

regards to criminal contempt and the power rele-

gated to him by statute in such a proceeding,

was placed before Justice Klein time and time

again. “Although a party conniving with a judge

to predetermine the outcome of a judicial pro-

ceeding may deal witn him in his ‘judicial

capacity’, the other party's expectation, i.e.,

judicial impartiality, is actively frustrated by

the scheme. In any event, the agreement is not

'a function normally performed by a judge.' It

is the antithesis of the ‘principled and fearless

decisionmaking' that judicial immunity exists

to protect." See Pierson v. Ray, 386 U.S. 547,

554(1967). Reliance is also had upon jeading case,

: 52 J

——————

Gregory v. Thompson, 500 F.2d at 63, cited in

Ranking v. Howard, supra.

The Rankin Court dealt with Rankin's

allegation that Judge Zelier agreed in advance

with the other defendants to rule favorably on

the petition. That Court concluded that a Judge'

private, prior agreement to decide in favor of

one party is not a judicial act. Rankin, at

847. That Court went on to hold that if the

said agreement manifested Judge Zeller's par-

ticipation in a conspiracy, then proof of the

agreement could form the basis of liability

whether or not he were immune from liability

for subsequent judicial acts.

The Rankin Court also held: “An

absence of personal jurisdiction may be said

to destroy ‘all jurisdiction’ because the re-

Quirements of subject matter and personal juris-

diction are conjunctional. Both must be met

before a court has authority to adjudicate the

" Rankin, at 848.

"If the court lacks jurisdicton over a party,

rights of part“es to a dispute.

WwW

oat ———————— oC

then it lacks ‘all jurisdiction' to adjudicate

that party's rights, whether or not the subject

matter is properly before it." Rankin, at 848,

and cases cited therein. "It is not sufficient

that the court in fact lacked jurisdiction.

Because jurisdictional issues are often difficult

to resolve, judges are entitled to decide such

issues without fear of reprisal should they

exceed the precise limits of their authority. "

Rankin, at 849, citing Stump _v. Sparkman, 435

U.S. et 3356, 96 3.Ct. at LiO4.

"But when a judge knows that he iacxs

jurisdiction, or acts in the face of clearly

valid statutes or case law expressly depriving

him of jurisdiction, judicial immunity is

lost." Rankin, at 849, citing Braaley v. Fisher,

80 U.S. (13 Wall.) at 351 ("When the want of

jurisdiction is known to the judge, no excuse

is permissible:"); (Stump is consistent with

the view that" a clearly inordinate exercise of

unconferred jurisdiction by a judge - one so

crass as to establish that he embarked on it

either knowingly or recklessly - subjects him

to personal liability")." If a judge's acts

were part of a conspiracy, he is properly held

responsible for the consequences. As the

pleadings and other documents assembled during

this litigation raise material issues of fact

that were not fully considered by the Court

below, summary judgment for the respondents

was inappropriate. Rankin v. Howard, supra,

at 849, citing Adickes v. S.H. Kress & Co.,

398 U.S. 144, 159 (1970); Fed. R.Civ.P. 56(c).

Justice Klein 1 st his judicial immunity

through his conspiratorial acts with respondents

FKMF and Schneider to unlawfully jail petitioner

in the clear absence of the jurisdiction to do

SO.

Moreoever, the dismissal of the case

against Justice Klein's co-conspirators was

error. Derivative immunity, mystifyingly, as

was granted to FKMF and Schneider by the Courts

below, was in error and contrary to ruling case

law. Rankin v. Howard, supra, at 850, citing

this Court in Dennis v. Sparks, spoke to the

resolution of the derivative immunity question:

& &

"The Supreme Court resolved the issue in Dennis

v. Sparkss 449 U.S. 24 , 101 S.Ct. 183, 66

L.Ed.2d 185 (1980). The Court held that an

_ immune judge's private co-conspirators do not

enjoy derivative immunity. 101 S.Ct. at 186.

The Court observed that (i)mmunity does not

change the character of the judge's action or

that of his co-conspirators. Indeed, his immu-

nity is dependent on the challenged conduct

being an official act within his statutory

jurisdiction, broadly construed. 449 U.S.,at27,

101 S.Ct. at 186 (footnote and citations

_ omitted).

It follows that (p)rivate parties who corrup-

tly conspire with a judge in connection with

such conduct are ... acting under color of

, state law within the meaning of Sec. 1983. 449 U.S.

| at og , 101 S.Ct. at 187. Even if further

proceedings establish Judge Zeller's immunity,

Howard and Trauscht thus may be held liable."

Rankin, supra, at 850 (emphasis added)

Thus, the acts of Judge Klein and FKMF and

Schneider do not merit immunity of any sort and,

consequently, Judge Stanton's ruling and the

ruling of the Court of Appeals must be overturned.

The New York State Supreme Court was

being utilized as a means for Criminal Enterprise,

and is still being utilized to effectuate these

criminal acts of extortion of Raffe and no

telling how many others. Obstruction of Justice

in this State Court, Mil Fraud, RICO Violations

are still pervasive and without restraint or

Judicial oversight. These Federal Courts were

likewise misused and mistreated herein

This Court should further ponder:° WHY

DID NOT A SINGLE PUCCINI SHAREHOLDER RECEIVE

FINANCIAL BENEFITS FROM THE LEGAL DISSOLUTION

OF PUCCINI? THE RECORD APPEARS TO INDICATE

THOSE ASSETS WERE DIVIDED AMONGST THE

_ RECEIVER AND HIS LAWFIRM AS "LEGAL EFEES"(SIC!).

Os LTR alii

It may well be a criminal act for the

New York State Supreme Court to appoint a

"Receiver" to oversee the dissolution and proper

distribution of assets of a dissolved domestic

corporation -- and have a Special Referee

(Diamond) appointed who “approves” of the

eR PE LEST A OO ES AE RE RCT IE IT CLE I I FE

"final accounting" (sic!) of said Receiver;

One who gratuitously places an imprimatur of

"regularity" on same, knowing it is done

in virtual secrecy, is false and dishonest

and a literal rape of the monies entrusted

to the Receiver as fiduciary; all manipu-

lated and contrived in violence to Meinhard

v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928)

(Cardozo, J.), a classic case delineating

that the trustee not trod the slippery slope(s)

of insensitive betrayors of their cesti aque trust.

This Court is pre-eminent in

insuring the Judicial System be honored in

its purest sense. The integrity of the

Judiciary and trust and faith of the People

in our Constitutional bulwark of Constitutional

Limitations is the heart of this case. If

an Attorney practicing since 1963 can be

jailed and dishonored on a Judicial contri-

vance engineered by powerful and dishonest

Lawfirms and individual lawyers with noto-

rious political "clout", and millions of

dollars are illicitely gained thereby, the

issue obtrudes: Who then is safe!

This Court is respectfully urged to reverse

the Courts below; to refuse to countenance such

raw deprivation of the Judicial System and rending

Our Constitution impotent -- all to insure the in-

tegrity of the Judiciary and to redeem the trust

and faith of the people in our Rule of Law.

Rulings ot the Court below should be re-

versed and remanded. Thereby, this respected

and honorable Attorney, veteran of Okinawa and

Ie Shima campaigns as a private in the United

States Army Enaineers,at last have his Day in

Court. The First Amendment commands it. Honor

and Justice compel such ruling.

CONCLUS TION

IT IS RESPECTFULLY PRAYED THAT THIS COURT

GRANT THE WITHIN PETITION FOR A WRIT OF

CERTIORARI; AND THAT THE COURT GRANT ALL

OTHER FURTHER AND DIFFERENT RELIEF IT

DEEMS JUST AND APPROPRIATE IN THE PREMISES.

DATED: January 23, 1991 f ‘

{ -, 9 4 és

Nil tt ¢™= me { ot Sen

SAM POLUR

Attorney Pro Se,Petitioner

110 East 23rd Street

New York,New York 10010

Tel: (212) 777-8616

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.