# Petition for Writ of Certiorari — Polur v. Raffe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1604%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 937 ## Text 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 C SH = o = 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? a 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) iv Page(s) 2 2 2 12 2 22,30 12 9 47 47 18 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 SS 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 9 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; 10 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 11 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. 12 a 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. . 13 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. 14 , 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. 15 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), 16 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 $.Ct., at 415. Court, in Migra, supra, went on to hoid that "Ohio state preclusion law is to be applied to this case. Prudence also dictates that it is the District Court, in the first instance, pret Ohio prectusion law and apply it." at 81. as U.S... This Court's precedent required the Circuit not this Court, that should inter- supra, Court to remand the case back to Judge Stanton in the District Court in order for Judge Stan- ton to apply New York State preclusion law to the case at bar. New York State law requires that two basic 17 { elements be satisfied in sebes for collateral ee to apply: 1) the identity of an issue necessarily ruled in the prior action with one which is decisive of the present action, and 2) that there was a full and fair opportunity to contest the issue in the prior action (see Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S. 2d 49, 423 N.E.2d 807). New York law goes further to state that “collateral estoppel effect will only be given ‘to matters ‘actually litigated and determined' in a prior action," Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 589 (citing Restatement (second) of Judaments, sec. 27, quoted in Koch v. Consolidated Edison Co., 62 N.Y.2d 548. (other citations omitted) "If the issue is not actually litigated, there is no identity of issues between the present action and the prior determination. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleadings or even because of a stipulation." Kaufman, supra, at 457, 492 8.¥.$.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. 3 i 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 21 7 ~ ' ®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. 22 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 4 Ould have examined the record of the non- 23 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 26 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. t 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) 28 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 4 State may not grant preclusive effect in its own courts to a constitutionally infirm judg- a 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- 29 - ' ‘ ‘ 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: 30 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. 31 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- 32 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: 9 . | + : 4 ; i 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. 33 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. 34 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 37 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; (c) Conviction without evidence being 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; 38 (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 39 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. 40 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- 4] 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 42 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 43 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 44 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 45 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) 46 a 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. 47 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. 48 — 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 on ; : 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). 5] 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. wn 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 54 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: & & a "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 57 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! 58 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 59 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1604%3A1. Public record. Not legal advice.