Petition for Writ of Certiorari — King v. James

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(\) Supreme Court, U.S,

FILED

9l-]

“1891 MAY 27 1999

OFFICE OF THE GLERK

CASE NO.: -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

ELINOR S. KING

Petitioner

V >

L. FOSTER JAMES

STEPHEN A. FERRADINO

JOHN A. SIMONE, JR.

JAN H. PLUMADORE

JOHN AUSTIN

JOHN J. WARNER, JR.

Respondents

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Elinor S. King

Petitioner - Pro se

108 Brunswick Road

Troy, New York 12180

(518) 274-1418

QUESTIONS PRESENTED FOR REVIEW

Do judges have judicial immunity for

their actions, when they deprive a person

of their property and place a personal

Obligation upon that person, knowing he

lacks personal jurisdiction over said

person and knowing he lacks subject

matter jurisdiction over the issues

efore him as the State Constitution

specifically deprives him of jurisdic-

tion? Does the statute of limitations

begin to run when the fraud is committed

or when the ame is discovered? Does

the Eleventh Amendment afford judges

immunity when the act in clear absence

of all jurisdiction? Are the Younger

doctrine and the Rooker-Feldman doctrine

applicable to cases where litigant is

being denied their civil rights to due

process and equal protection of the law?

(22

LIST OF ALL PARTIES

I certify that the following

comprise all interested persons

Known to Petitioner:

Elinor S. King - Petitioner pro se

Respondents

L. Foster James,

Stephen A. Ferradino,

John A. Simone, Jr.,

Judge Jan H. Plumadore,

Judge John Austin,

John J. Warner, Jr.,

Attorney: New York State Attorney

General Robert Abrams

Department of Law

The Capitol

Albany, New York 12224

(518) 486-4087

oe eo

Om “797 Le

Elinor S. King

Petitioner - Pro &

(ii)

‘cama iaalldiiacaiaia ieee

TABLE OF CONTENTS

Questions Presented p. i

For Review

List Of All Interested es -Sh

Parties

Table Of Contents p- iii

Table Of Authorities p.- iv

Official Court-Opinions D l

Statement of Jurisdiction p. 2

Constitutional Provisions p. 3

& Statutes

Statement Of The Case p. 10

Facts of Case p. 11

Arguments p. 22

Conclusion p. 65

Appendix p. 66

(iii)

TABLE OF AUTHORITIES

Constitutional Provisions

Statutes & Rules

US.

CONST.

Section 2.

U.S.

28 U.

42 U.

United States Supreme Court

CONST.

$.C.

S.C.

Aft. Vie

Amendment V

Amendment VI

Amendment XI

Amendment IVX

Section 1254 (1)

Section 1343

Section 1983

Section 1985

Stump v. Sparkman,

435 U.S. 349, (1978)

Bradley v. Fisher, ;

80 U.S. 13 (Wall) 335 (1872)

Kulko v. Superior Court

436 U.S. 84 (1978)

International Shoe Co. v.

Washington,

(iv)

(1945) 326 U.S.

26,

32,

McDonald v. McBee, (1917)

243 U.S.

Pennoyer v. Neff, (1898)

95 U.S.

714

Utah Junk Co. v. Porter,

3298 U.S.

39, (1946).

United States v. First City

National

Bank, 386 U.S. 361, (1967)

Argersinger v. Hamlin

407 U.S.

25 (1972)

In re Oliver

333 U.S.

257

Pointer v. Texas

380 U.S.

400

Washington v. Texas

388 U.S.

Holmberg

327 U.S.

Lynch v.

405 U.S.

Jones v.

392 U.S.

v. Armbrecht

392 (1946)

Household Finance Corp,

538 (1972)

Alfred H. Mayer Co,

409

Rooker-Feldman doctrine

Younger doctrine

~ B

United States Court of Appeals

Rankin v. Howard, 633 F.2d p.

844 (1980), cert. denied

101 §.€t. 20620, 451 U.S. 939

Duba v. McIntyre, 501 F.2d

590, (1974) cert denied

96 S.Ct. 1480, 424 U.S. 975

Ryan v. Scoggin,

245 F.2d 54 (1957)

Gregory v. Thompson,

500 F.2d 63

Dykes v. Hoseman, p.

743 F.2d 1488, (1984)

Turner v. Raynes,

611 F.2d 92, (1980)

Baures v. Heisel,

361 F.2d 581, (1966)

United States v. State of

California, 504 F.2d 750, (1974)

Maestri v. Jutkofsky,

860 F.2d 50, (2nd Cir. 1988).

Dinwiddie v. Brown,

230 F.2d 465 (1956)

Briley v. State of Cal.,

564 F.2d 849 (1977)

Hilton v. Mumaw,

522 F.2d 588

(vi)

23,

26,

Smith v. State of Kansas (1966) p. 60

356 F.2d 654, cert denied

88 S.Ct. 154, 389 U.S. 871

Jones v. Metzger (1972) S. 62

456 F.2d 854

Devil v. Sosbe (1972) p. 62

465 F.2d 169

Woods v. Wright (1964) p. 63

344 F.2d 369

United States District Court

Hofferber v. The First National Bb. Sa

Bank of Guyman , Oklahoma,

437 F.Supp. 788

Schorle v. City of Greenhills p. 60

524 F.Supp. 821 (1981)

Cochran v. Ensweller p. 62

372 F.Supp. 471 (1974)

Javits v. Stevens (D.C.N.Y.) p. 63

382 F.Supp. 131 (1974)

Law Review Journals

Junker, The right to Counsel in p. 47

Misdemeanor Cases. 43 Wash.L.Rev.

685, 705 (1968).

New York State Constitution

Article 6, Section l p. 34

(vii)

Article 6, Section 13 (a) p. 34

Article 6, Section 13 (b) o>. 34, 37

Article 6, Section 13 (c) p. 34, 37

Article 6, Section 19 (a) p. 64

New York State Statutes

Family Court Act Section 115 (b) >. 37

Family Court Act Section 447 Oo. 37

Family Court Act Section 461(a) p. 38

Civil Practice, Law p. 40

& Rules Section 2221

Family Court Act Section 174 p. 42

Family Court Act Section 421 p. 42

Judiciary Law Section 14 p. 43

Family Court Act § 433 (a) p. 46

Rules of Chief Administrator p. 44

of Courts, Part 100, Judicial

Conduct, § 100.3

New York State Court of Appeals

Bolatin v. Bolatin, Dp. 38, 39

22 N.Y.2d 794, (1968)..

(viii)

New York State Appellate Court

Carella v. Collins, p. 28

144 A.D.2d 78 (1989) _ ,

Roy v. Roy, | Ss es

109 A.D.2d 150 (1985)

Greene v. Greene, p.- 36

32 A.D.2d 523, (1969)

Harrington v. Harrington, Sb. 37, 39

60 A.D.2d 982 (1978)

Casterella v. Casterella, p. 43

65 A.D.2d 614 (1978)

Privitera v. Town of Phelps, p. 33

79 A.D.2d 1

New York Supplement

Cummings v. Christensen, p. 43

439 N.Y.S.2d 82

(ix)

OFFICIAL COURT OPINIONS

The United States District Court

issued its Decision and Order signed on

November 29, 1991 and entered on November

29, 1991, (91-CV-0952) determining the

judges had judicial immunity for their

actions and that Petitioner failed to

allege specific facts sufficient to indi-

cate a deprivation of rights has occurred.

The United States Court of Appeals

for the Second Circuit affirmed the

District Court's Decision and Order

on May 8, 1992 (91-9317).

STATEMENT OF JURISDICTION

This Petition for a Writ of

Certiorari is sought from a final

Order of the United States Court

of Appeals, Second Circuit, issued

May 8, 1992, (91-9317) and is

herein filed within the required

ninety (90) day period.

This court has jurisdiction

pursuant to 28 U.S.C. Section 1254.

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST. Art. VI, Section 2.

"This Constitution, and the Laws of

the United States which shall be made in

Pursuance thereof; and all Treaties made,

or which shall be made, under the

Authority of the United States, shall be

the supreme Law of the land; and the

Judges in every State shall be bound

thereby, any Thing in the Constitution

Or Laws of any State to the Contrary

notwithstanding."

U.S. CONST. Amendment Five

No person shall be held to answer

for a capital, or otherwise infamous

Crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases

arising in the land or naval forces, or

im the Militia, when in actual service

in time of War or public danger; nor

(3)

shall any person be subject for the

same offense to be twice put in jeopardy

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor shall private

property be taken for public use,

without just compensation.

U.S. CONST. Amendment Six.

"In all criminal prosecutions, the

accused shall enjoy the right to a speedy

trial by an impartial jury of the State

and district wherein the crime shall have

been previously ascertained by law, and

to be informed of the nature and cause of

the accusation; to be confronted with

witnesses against him; to have compulsory

process for obtaining witnesses in his

favor, and to have the Assistance of

(4)

Counsel for his defense.

U.S. CONST. Amendment Fourteen.

"All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

42 U.S.C. Section 1983.

Every person who, under color of any

statute, ordinance, regulation, custom or

usage, of any State or Territory, sub-

jects, or causes to be subjected, any

citizen of the United States or other

(5S)

person within the jurisdiction thereof

to the deprivation of any rights, priv-

ileges, or immunities secured by the

Constitution and laws, shall be liable

to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. Section 1985.

Conspiracy to interfere with civil

rights.

(2) If two or more persons in any

state or Territory conspire to deter, by

force, intimidation, or threat, any party

Or witness in any court of the United

States from attending such court, or

from testifying to any matter pending

therein, freely, fully, and truthfully,

Or to injure such party or witness in

his person or property on account of

having so attended or testified, or to

(6)

influence the verdict, presentment, or

indictment of any grand or petit juror

in any such court, or to injure such

juror in his person or property on

account of any verdict, presentment, or

indictment lawfully assented to by him,

or cf his being or having been such

juror; or if two or more persons

conspire for the purpose of impeding,

hindering, obstructing, or defeating,

in any manner, the due course of justice

in any State or Territory, with intent

to deny to any citizen the equal protec-

tion of laws, or to injure him or his

property for lawfully enforcing or

attempting to enforce, the right of any

person, or class of persons, to equal

protection of the laws;

(3) If two or more persons in any

State or Territory conspire or go in

disguise on the highway or on the

(7)

premises of another, for the purpose of

depriving, either directly or indirectly,

any person or class of persons of the

equal protection of the laws, or of

equal privileges and immunities under

the laws; or for the purpose of prevent-

ing or hindering the constituted authori-

ties of any State or Territory from

giving or securing to all persons within

such State of Territory the equal pro-

tection of the laws; or if two or more

persons conspire to prevent by force,

intimidation, or threat any citizen who

is lawfully entitled to vote, from giving

his support or advocacy in a legal manner

toward or in favor of the election of any

lawfully qualified person as an elector

for President or Vice President, or as a

Member of Congress of the United States;

Or to injure any citizen in person or

property on account of such support or

(8)

advocacy; in any case of conspiracy set

forth in this section, of one or more

persons engage therein do, or cause to

be done, any act in furtherance of the

object of such conspiracy, whereby

another is injured in his person or

property, or deprived of having exer-

cising any right or privilege of a

citizen of the United States, the

party so injured or deprived may have

an action for the recovery of damages

occasioned by such injury or depriva-

tion, against any one or more of the

conspirators.

(9)

STATEMENT OF CASE

This is an appeal from a final order

signed and filed by the Second Circuit

Court of Appeals on May 8, 1992 affirming

the decision and order of the District

Court signed and entered November 29,

1991 determining that the judges had

judicial immunity for their actions,

that Petitioner failed to specifically

state the deprivation of Constitutional

rights. District Court had jurisdiction

pursuant to 28 U.S.C. 1343.

(10)

FACTS

The family court judges knew

that they had no authority to place a

personal obligation upon Petitioner to

support her son, Mr Collins and his

former wife, Ms Carella, and to give

exclusive possession of Petitioner's

real property to Ms Carella.

The family court judges also knew

that they lacked jurisdiction over the

issues of custody, visitation and support

between Petitioner's son and Ms Carella

as there has never been a referral of the

issues to the family court from the

supreme court as required by the New York

State Constitution.

At an EBT held on April 19, 1989

Ms Carella, when asked, did not deny that

she was having ex parta communications

with Judge James concerning the family

court proceedings.

(11)

Petitioner's son, Charles E. Collins

III, and Ms Carella were married on June

28, 1975 and had three children of the

marriage. On October 3, 1980 they entered

into a Separation Agreement which gave Ms

Carella custody of the children and visi-

tation rights to Mr Collins as well as

providing for support of Ms Carella and

the children. On March 27, 1981 they

entered into an Amended Separation Agree-

ment concerning support. On July 27, 1981

Judge Amyot signed a New York State

Judgment of Divorce which was entered on

August 3, 1981 in Saratoga County which

incorporated but did not merge the agree-

ments. Said agreements were drawn up by

Ms Carella's attorney and Mr Collins was

not represented by counsel.

In 1984, Petitioner, her son and her

husband purchased a house in Saratoga

County with each owing a 1/3 interest

(12)

in the property and the deed was filed

on June 14, 1984.

May 7, 1985 Judge Ferradino modified

the Supreme Court Divorce Decree by

ordering Mr Collins to pay for the mort-

gage and utilites on the house for the

benefit of Ms Carella in addition to

the support ordered by the Supreme Court.

On April 22, 1986 Judge James gave

Ms Carella exclusive possession of the

property. Petitioner was not a party to

the proceeding and therefore Judge

James lacked personal jurisdiction over

her. Judge James is not authorized as

a family court judge, to determine

possession or title of real property.

Supreme Court Judge Plumadore specifi-

Cally so ruled on December 11, 1989.

On April 22, 1986, after awarding

Ms Carella exclusive possession of the

house, Judge James transferred the issue

(13)

of support to the Schenectady County

Hearing Examiner.

In November of 1986 Mr Collins sold

his 1/3 interest in the house to Peti-

tioner and received credit for monies

owed to her.

March 5, 1987 Hearing Examiner

Warner issued his decision and order

which changed the terms of the Supreme

Court Decree.

April 7, 1987 and April 8, 1987

Judge James held a trial to determine

if Mr Collins had violated the Family

Court support orders. As documented by

the transcripts, Mr Collins was not

informed of his rights as required by

both state and federal law including his

right to counsel, was not allowed to

cross-examine Ms Carella on her testi-

mony, waS allowed only to present evi-

dence and documentation for the period of

(14)

October 3, 1986 to April 7, 1987 while

Mr Morsillo and Judge James questioned

Mr Collins and Ms Carella covering the

period of 1981 to April 7, 1987, and

Mr Collins was not allowed to object to

the questions being asked of him, etc.

On April 15, 1987 Judge James sen-

tenced Mr Collins to jail.

September 17, 1987 Mr Warner issued

his Finding of Fact and recommended that

Mr Collins be sentenced to jail for vio-

lation of support. Testimony showed that

Mr Collins earned $400.00 per week with a

net of $293.00 or $1259.00 per month. He

was ordered to pay $725.00 mortgage,

$284.00 support, $60.00 arrears, $150.00

for utilities for a total of $1219.00

which does not include past due medical

bills, future medical bills, medical

insurance and past due electric bills

Mr Collins was ordered to pay. Mr Collins

(15)

was left with just $40.00 per month to

pay these added bills and to live on.

January 25, 1988 Surrogate Court

Judge Simone sentenced Mr Collins to jail

for violation of the family court support

orders.

January 26, 1989 the Appellate Court

ruled that Mr Collins could not afford to

pay the amount ordered by the family

court and that the family court could not

rely on Petitioner's assets in determin-

ing her son's support obligation.

July, 1989 Petitioner sued Mr

Collins and Ms Carella in Supreme Court

in order to gain possession of the real

property.

September 8, 1989 Judge James order-

ed Mr Collins to pay a flat $120.00 per

week and specifically stated that his

potential was $20,000.00 per year. Judge

James then made the order retroactive

(16)

back to December 1987 as required by FCA

§ 449 without giving Mr Collins fufl

credit for support paid as required.

This placed Mr Collins over $4,000.00 in

arrears when he should have had over a

$14,000.00 credit. This was in order to

prejudice the Supreme Court proceeding by

giving Ms Carella a reason to claim there

was a fraudulent conveyance between

Petitioner and Mr Collins.

In order to circumvent the Appellate

Court ruling concerning Mr Collins: sup-

port obligation Supreme Court Judge Plum-

adore on February 28, 1990 refused to

give Petitioner back her property relying

on Judge James' decision placing Mr

Collins over $4,000.00 in arrears knowing

that Judge James lacked jurisdiction and

Mr Collins did not receive full credit

for all support paid pursuant to court

order. Judge Plumadore ruled because of

(17)

the arrears, Ms Carella was entitled to

claim a fraudulent conveyance. Yet, ig-

noring the fraud in Ms Carella receiving

exclusive possession of the house. With

out a hearing or a trial Judge Plumadore

ruled that Ms Carella could remain in the

house, holding Mrs King liable for Mr

Collins' support as she has to pay $850.

per month mortgage on the house. Judge

Plumadore has refused to hold a hearing

or to set a date for interrogatories to

be completed by and is refusing to allow

Petitioner or Mr Collins to claim the

money paid on the mortgage to be used >

against Mr Collins' support obligation.

From September 1989 to the present is 30

months. At $516.00 per month support is

$15,480.00 + $4,000.00 arrears equal

$19,480. Mortgage payment of $850.00 per

month is a total of $25,500.00 minus sup-

port of $19,480 leaves $6,020.00 that has

(18)

been over paid. Thereby, ruling Ms

Carella is entitled to live in the house

rent free and receive support.

April 30, 1990 Mr Collins filed a

violation of visitation petition anda

modification of support petition in the

family court naming Ms Carella and Judges

James and Ferradino as Respondents.

May 9, 1990 Judge James signs Judge

Austin's name to an Order to Show Cause

for violation of support, after he had

been removed from the case by an Adminis-

trative Order.

May 25, 1990 Mr Collins appeared

before Judge Austin for violation of sup-

port based upon Judge James' September 8,

1989 decision. Mr Collins was not inform-

ed of his rights including his right to

counsel. Judge Austin refused to open the

courtroom to the public in violation of

his 6th Amendment right as he faced six

(19)

months incarceration.

July 30, 1990 Judge Austin dismisses

all of Mr Collins' petitions leaving only

Ms Carella's violation petition. He again

fails to inform Mr Collins of his rights

and again refuses to open the court to

public.

August 16, 1991 Mr Collins sends a

letter to Judge Austin stating that he

lacked jurisdiction pursuant to the New

York State Constitution, the Family Court

Act and supporting case law.

August 20, 1991 Judge Austin replies

Stating Mr Collins' arguments are "with

Out merit" and refuses to state upon what

he based his jurisdiction as he had a

personal interest in determining he had

jurisdiction because of Mr Collins'

federal lawsuit which was filed on March

28, 1991.

Petitioner's Complaint was filed on

(20)

August 22, 1991 and Judge Austin was

served on August 29, 1991.

September 13, 1991 Judge Austin

issued a warrant for Mr Collins' arrest

because he refused to participate ina

trial over which Judge Austin knew he

lacked jurisdiction and had a personal

interest in seeing that Mr Collins would

not be able to argue his case before the

U.S. Court of Appeals and to take out

retribution against Petitioner for filing

this lawsuit against him.

(21)

ARGUMENTS

Petitioner respectfully requests

that this court grant a Writ of Certior-

ari in this case as the United States

Court of Appeals for the Second Circuit

has decided a federal question in a way

that conflicts with applicable decisions

of this Court, other federal circuit

courts, the New York State Court of

Appeals as well as the Appellate Courts

of the State of New York.

The Second Circuit in entering its

decision relied upon the District Court's

decision that the judges had immunity

based on Stump v. Sparkman, 435 U.S. 349,

362-64 (1978) without addressing the

the issues Of whether the judges were

acting within the scope of their subject

matter jurisdiction and whether the

judges had personal jurisdiction over

Petitioner in order to place a personal

(22)

obligation upon her to support Mr Collins

and Ms Carella and when they gave

exclusive possession of Petitioner's

property to Ms Carella.

Rankin v. Howard, 633 F.2d 844 (9th

Cir. 1980) at 848, stated:

..-When the Supreme Court first

formulated the "clear absence"

standard, however, it stated that

the principal of immunity applied

when there was "jurisdiction of both

subject and person." Bradley v.

Fisher, 80 U.S. (13 Wall.) 335, 352

(1872). 20 L.Ed. 646.

Several courts have repeated this

language indicating in dicta that both

subject matter and personal jurisdiction

are necessary to confer judicial immun-

ity. See, Duba v. McIntyre, 501 F.2d 590,

592 (8th Cir.1974), cert denied, 424 U.S.

975, 96 S.Ct. 1480, 47 L.Ed2d 745 (1976)

("the judge must have both jurisdicticn

over the person and subject matter if he

is to be immune from suit."); Ryan v.

(23)

Scoggin, 245 F.2d 54, 58 (10th Cir. 1957)

(judge is immune for order or judgment

when "court has jurisdiction of the sub-

ject matter and of the parties").

The thrust of Appellant's Complaint

is that the family court judges lacked

both personal jurisdiction over Petition-

er and subject matter jurisdiction over

the issues before them. The family court

judges and hearing examiner placed a per-

sonal obligation on Petitioner to support

her son, Charles E. Collins, III and her

son's ex-wife Ms Carella. They have also

deprived her of her property. The supreme

court judge, after ruling that Ms Carella

has "no interest equivalent to or imping-

ing upon title", continves to deprive

Petitioner of possession of her property

by refusing to proceed with the case, in

Order for the family court judges to

sentence Mr Collins to jail so that Ms

(24)

Carella can be put in a superior bargain-

ing position. By refusing, for over two

years, to order due dates for discovery

to be completed by so that a trial can be

held in order for Judge Austin to sen-

tence Mr Collins to jail in a closed

courtroom based upon an order that the

family court judge had no authority to

issue in the first place is a denial of

due proces and equal protection of the

law and a deliberate attempt to impede

and hinder the due course of justice.

Personal Jurisdiction

Rankin v. Howard, 633 F2d 848:

{5] An absence of personal jurisdic-

tion may be said to destroy "all

jurisdiction" because the require-

ments of subject matter and personal

jurisdiction are conjunctional. Both

must be met before a court has the

authority to adjudicate the rights

of parties to a dispute.

[6] If a court lacks jurisdiction

over a party, then it lacks “all

jurisdiction" to adjudicate that

party's rights, whether or not the

(25)

1497,

subject matter is properly before

it. See, e.g. Kulko v. Superior

Const, 436. 0.8..84, 91, 96. S.Ct.

1690, 1696, 56 L.Ed.2d 132 (1978)

("{ijt has long been the rule that

a valid judgment imposing a personal

obligation or duty in favor of the

plaintiff may be entered only by a

court having jurisdiction over the

person of the defendant")...;

[7] Because of the limits of person-

al jurisdiction constrain judicial

authority, acts taken in the absence

of personal jurisdiction do not fall

within the scope of legitimate

decisionmaking that judicial immun-

ity is designed to protect. See,

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

We conclude that a judge who acts in

the clear and complete absence of

personal jurisdiction loses his

judicial immunity.

Dykes v. Hoseman, 743 F.2d 1488,

(llth Cir. 1984) held:

[13] We agree with the Rankin

court's analysis. We point out in

addition, that the rational for the

limitation on judicial immunity when

subject matter jurisdiction is lack-

ing applies with equal force when

personal jurisdiction is lacking. In

Bradley v. Fisher, the court stated

that where there is no jurisdiction

over the subject matter, any author-

ity exercised is a usurped author-

ity. 13 Wall. at 351, 20 L.Ed. 646.

Although the modern conception of

(26)

personal jurisdiction generally

refers to due process. see, e.g.

International Shoe Co. v. Washing-

ton, 326 U.S. 310, 66 S.Ct. 154, 90

L.Ed. 95 (1945), the foundation of

personal jurisdiction has always

been the court's power to act.

McDonald v. McBee, 243 U.S. 90, 37

S.Ct. 343, 61 L.Ed. 608 (1917);

Pennoyer v. Neff, 95 U.S. 714, 24

..Ed. 565 (1898). When the court

acts without personal jurisdiction,

its authority is as much a usurped

authority as when the court acts

without subject matter jurisdiction.

The State argued p. 8-9 of brief:

..-King was not a party to these

proceedings, and -- with the possi-

ble exception of the orders regard-

ing Wooddale property -- no judg-

ments or orders ensuing from these

proceedings required or restrained

action by King.

Judge James in his April 15, 1987

decision sentencing Appellant's son to

jail for violation of of support stated:

...-that from November 1986 to the

present time there were no periods

when the Petitioner was without

income; that the Petitioner posses-

ses unused assets particularly the

ability to borrow, since his busi-

ness related debts are now sub-

stantially satisfied,....

(27)

Mr Collins had income but he did not

have sufficient income to pay what the

family court had ordered nor did Judge

James state what Mr Collins' assets were

or where he could obtain funds to pay his

support.

Judge Simone in his January 25, 1988

decision sentencing Petitioner's son to

jail stated:

..-The Court is convinced that the

respondent does have funds available

to him to comply with the oraer

and/or that he is capable of obtain-

ing such funds....

Judge Simone never stated what funds

were available to Mr Collins or where he

could obtain such funds.

The Appellate Court in its ruling

Carella v. Collins, 144 AD2d 78:

...-Family Court's emphasis on re-

spondent's alleged access to funds

is not well founded in this record.

There was much testimony concerning

the financial status of respondent's

mother from which the court could

have assumed that funds were avail-

(28)

able to him, including the fact that

respondent had resided with his

mother rent free from 1981 and that

she appears willing to offer finan-

cial assistance to him. However, the

mother's financial status cannot be

said to be respondent's status.

In the casse at bar, the record does

not demonstrate a failure to make

Support payments accompanied by an

absence of any attempt to modify the

order of support, nor does it demon-

strate the failure to use any part

of respondent's wages to make sup-

port payments while regularly

employed as to constitute prima

facia evidence of willfullness...

Had Petitioner been willing to make

funds available to Mr Collins he would

not have been sentenced to jail by Judge

James, Hearing Examiner Warner and Judge

Simone for violation of support.

The State has admitted that Judge

James did not have personal jurisdiction

over Petitioner, as she was not a party

to the family court proceeding, when he

gave Ms Carella exclusive possession of

her real property. The State has admitted

(29)

that Petitioner was not a party to the

family court proceedings and therefore

had no authority to use Petitioner's

assets to determine her son's support

obligation and then threaten her with the

incarceration of her son if she did not

loan him money to pay his support obliga-

tion. The judges in their decisions did

not use peettionnr’s name directly as

they knew they had no authority to place

a personal obligation upon her to support

Mr Collins and Ms Carella. So in order to

place the personal obligation upon her

without having the authority to do so,

they ordered her son to pay more in

support than he could afford and then

threatened her son with incarceration and

sentenced him to jail in order to force

and intimidate Petitioner into paying her

son's support obligation in order to keep

(30)

him out of jail.

Petitioner has clearly documented

that Family Court's intent was to place

a personal obligation upon her which they

did and the Appellate Division's January

26, 1989 order supports this contention

100%. Even the District Court, as docu-

mented in Petitioner's brief, found she

was aggrieved by these Family Court

decisions and orders. Not only did the

Family Court orders deprive her of pos-

session of her real property but they

have forced Petitioner to pay approxi-

mately $850.00 per month on the house or

loose the house to foreclosure and/or

taxes. These Family Court orders have

prevented Petitioner from selling the

house and has caused her great hardship

in the Supreme Court in trying to get

possession of her property back while

(31)

allowing Ms Carella to live in the house

rent free. As documented and not denied

by the state, Petitioner is being depriv-

ed of her right to a hearing and trial to

get her property back and the Family

Court is interfering with the Supreme

Court case by issuing orders to place Ms

Carella in a superior position in order

to force Petitioner to support Ms

Carella while knowing they lack jurisdic-

tion over the issues between Mr Collins

and Ms Carella.

Subject Matter Jurisdiction

Rankin v. Howard 633 F2d 849 held:

[10] But when a judge knows he lacks

jurisdiction, or acts on the face of

Clearly valid state statutes or case

law expressly depriving him of jur-

isdiction, judicial immunity is lost

See Bradley v. Fisher, 80 U.S. (13

Wall) at 351 (" when want of juris-

diction is known to the judge, no

excuse is permissible"); Turner v.

Raynes, 611 F.2d 92, 95 (5th Cir.

1980) (Stump, is consistent with the

view that "a clearly inordinate

(32)

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")

Dykes v. Hoseman, 743 F.2d 1488

(lith Cir. 1984) at 1495 held:

[11] It is clear that a judge who

acts in the absence of jurisdiction

may be held liable for his judicial

acts. Stump v. Sparkman, 435 U.S.

349, 98 S.Ct. 1099, (1978);

Bauers v. Heisel, 361 F.2d 581 (3rd.

Cir. 1966) at 591 held:

..-Because immunity is conferred on

an individual solely by virtue of

the office he holds, reason required

us to adopt a rule which does not

provide immunity for those acts

which are done clearly outside the

authority or jurisdiction of the

office.

United States v. State of Califor-

nia, 504 F.2d 750 (1974) at 754 held:

[3,4] ...Nevertheless the government

argues that this case can be brought

within the exceptions to Section

218. This contention must be consid-

ered in light of two important rules

of statutory construction: 1) juris-

dictional statutes are to be strict-

(33)

ly construed. "(I]n construing a

definite procedural provision we do

well to stick close to the text and

not import argumentative qualifica-

tions from broad, unexpressed claims

of policy". Utah Junk Co. v. Porter,

328 U.S. 39, 44, 66 S.Ct. 889, 892,

(1946); 2) exceptions to the general

provisions of a statute are also to

be strictly construed. See, United

States v. First City National Bank,

386 U.S. 361(1967)

N.Y.S. CONST., Art. 6, § 1, creates

the Family Court as part of the Unified

Court System of New York. Art. 6, § 13(a)

establishes the Family Court of the State

of New York. Article 6, § 13 (b) and (c)

state the jurisdiction:

b) The family court shall have jur-

isdiction over the following classes

of actions and proceedings which

shall be originated in such family

court in the manner provided by law:

...(2) the custody of minors except

for custody incidental to actions

and proceedings for marital separa-

tion, divorce, annulment of marriage

and dissolution of marriage; ...(4)

the support of dependants except for

support incidental to actions and

proceedings in this state for mari-

tal separation, divorce, annulment

(34)

of marriage or dissolution of

marriage; ....

c) The family court shall also have

jurisdiction to determine, with the

Same powers possessed by the supreme

court, the following matters when

referred to the family court from

the supreme court: habeas corpus

proceedings for the determination of

the custody of minors; and in action

and proceedings for marital separa-

tion, divorce, annulment of marriage

and dissolution of marriage, appli-

cations to fix temporary or perman-

ent support and custody, or applica-

tions to enforce judgments and

orders of support and of custody,

Or applications to modify judgments

and orders of support and of custody

which may be granted only upon the

showing to the family court that

there has been a subsequent change

of circumstances and that modifica-

tion is required.

The Family Court is a court of

limited jurisdiction and has power to

entertain only those applications which

are specifically enumerated in the state

constitution or in appropriate statute.

Roy v. Roy, 109 A.D.2d 150, (1985).

The State Constitution does not

(35)

authorize the family court to determine

either possession or title of property.

Therefore, Judge James had no authority

to give Ms Carella exclusive possession

of the real property owned in part by

Petitioner.

The State Constitution is specific

in stating that Family Court has no

authority to enforce or modify any court

order concerning custody, visitation or

Support that has not been referred to it

by the supreme court. It must also be

concluded that family court cannot even

enforce or modify its own orders as the

State Constitution refers to "court

Orders" and does not differentiate

between family court orders and supreme

court orders.

Greene v. Greene, 32 A.D.2d 523, 299

N.Y.S.2d 85 (lst Dep't. 1969) held:

(36)

982,

...The parties were divorced by

decree entered in New York Supreme

Court June 13, 1967. That decree

makes provision for custody of the

minor children and for the father's

(appellant herein) visitation rights

[1] The Family Court has jurisdic-

tion to determine custody of minors

only when such jurisdiction is

referred to it by the Supreme Court

(New York State Constitution,

Article VI, § 13, subds. b(2) and c;

Section 115, subdivision (b) of the

Family Court Act.)

[2] Concededly the Supreme Court did

not refer the issue of visitation to

the Family Court. It is therefore

Clear that it did not have jurisdic-

tion to change the father's visita-

tion rights. The proper and only

forum to petition for such a change,

if warranted, is the Supreme Court.

Harrington v. Harrington, 60 A.D.2d

401 N.Y.S.2d 342, at 343 (1978):

Under section 447, subdivision (a)

of the Family Court Act family court

is granted power to make an order of

custody or visitation but only "[iJn

the absence of an order of custody

Or visitation entered by the supreme

court". The restriction of the power

to instances where there is no order

of the supreme court compels the

conclusions that where there is such

(37) |

an order of supreme court, family

court may not modify it in the

absence of express permission.

Inasmuch as family court lacked au-

thority to entertain the proceeding

to modify the custody and visitation

provisions of the divorce decree,

the order is reversed and the peti-

tion dismissed without prejudice to

commencement of an appropriate pro-

ceeding in supreme court. The pro-

visions for child support and coun-

sel fees may not stand because both

are predicated on the court having

jurisdiction to modify the custody

and visitation provisions of the

decree.

The Court of Appeals has specifical-

ly so ruled in Bolatin v. Bolatin, 22

N.Y.2d 794, affg. 29 A.D.2d 534 concern-

ing Family Court Act § 447.

Section 46l(a) of the Family Court

Act concerning support states:

A separation agreement, a decree of

separation, and a final decree or

judgment terminating a marriage

relationship does not eliminate or

diminish either parent's duty to

support a child of the marriage

under section four hundred thirteen

of this article. In the absence of

an order of the supreme court or of

(38)

another court of competent jurisdic-

tion requiring support of the child,

the family court may entertain a

petition and make an order for its

support.

As in Bolatin, supra and Harrington,

supra, it must be concluded that where

there is an order of support by the

Supreme court, family court does not have

jurisdiction to make an order.

As Mr Collins' New York State

Supreme Court Divorce Decree provided

for custody, visitation and support and

the issues of custody, visitation and

Support have never been referred to the

Family Court by the Supreme Court the

Family Court has acted in complete

absence of all jurisdiction.

The family court judges and hearing

examiner clearly knew the jurisdiction of

the Family Court as defined by the State

Constitution, concurring state statutes

(39)

1 ne

and supporting case law. Therefore, they

have no excuse for violating the juris-

diction vested in the Family Court by

the State Constitution.

CPLR 2221 states: Motion affecting

prior order:

(a) A motion for leave to renew or

to reargue a prior motion, for leave

to appeal from, or to stay, vacate

or modify an order shall be made, on

notice to the judge who signed the

order, unless he is for ay reason

unable to hear it, excep. that:

1. if order was made upon

default such motion may be

made, on notice, to any judge

of the court; and

2. if the order was made with-

out notice such motion may be

made, without notice, to the

judge who signed it, or, on

notice, to any other judge of

the court.

A motion made to other than a proper

judge under this rule shall be

transferred to the proper judge.

As Mr Collins had a Supreme Court

order concerning custody, visitation and

(40)

Support, under CPLR 2221 the family court

had no authority to modify the Supreme

Court Decree and should have transferred

any petitions to modify the Decree to the

judge who signed the Supreme Court order

or to another judge of the Supreme Court.

{2nd

1132,

Maestri v. Jutkofsky, 860 F.2d 50,

Cir. 1988), cert. denied 109 S.Ct.

103 L.Ed2d 193 (1989) held at 52:

[1] ...When a judge clearly lacks

jurisdiction over the subject

matter, "any authority exercised

is a usurped authority". Bradley v.

Fisher, 80 U.S. (13 Wall) 335 (1871)

[3] ...Finally, Jutkofsky has not

cited, nor have we found, any case

in which a judge who had exercised

authority outside the territory

properly within his jurisdiction

was nevertheless held to be entitled

to judicial immunity.

[4] For a judge to assume authority

outside the geographic bounds of his

office is the kind of clear judicial

usurpation which cannot be condoned

by any grant of immunity. No public

policy would be served by granting

immunity for such arrogant excesses

of authority.

(41)

Petitioner has alleged that Hearing

Examiner Warner exceeded the geographical

bounds of his authority.

Schenectady County Hearing Examiner

Warner's appointment authorized him to

hear only Schenectady County Family Court

matters while this was a Saratoga County

Family Court matter.

Family Court Act § 174 states:

The family court in a county may for

good cause transfer a proceeding to

a family court in any other county

where the proceeding might have been

originated and shall transfer a pro-

ceeding laying venue in the wrong

county to a family court in any

county where the proceeding might

have been originated.

The applicable venue provision,

Family Court Act § 421, did not authorize

the proceeding to be transferred to

Schenectady County as neither Mr Collins

or Ms Carella resided in Schenectady

County.

Judge Simone is a Surrogate Court

(42)

Judge whose subject matter jurisdiction

is to hear and determine matters concern-

ing adoption and estates. Here, Judge

Simone held a trial for violation of a

Family Court support order and sentenced

Mr Collins to jail. Even if he had been

assigned to the family court he would

still have been without jurisdiction as

family court has no authority to enforce

a support order without a referral from

the supreme court.

New York State Judiciary Law Section

14: Disqualification of judge by reason

of interest or consanguinity

A judge shall not sit as such in, or

take part in the decision or, an

action, claim, matter, motion or

proceeding to which he is a party,

Or in which he has been attorney or

counsel or in which he is interes-

ted...

Casterella v. Casterella, 1978, 65

A.D.2d 614, 409 N.Y.S.2d 548 held:

(43)

2. Statute requiring disqualifica-

tion of judges on basis of interest

or bias is jurisdictional. Judiciary

Law § 14.

Cummings v. Christensen, 1981, 109

Misc.2d 255, 439 N.Y.S.2d 825 held:

2. Statutes requiring disqualifica-

tion on the basis of interest or

bias are jurisdictional in nature,

and the parties may not consent that

a judge sit as such on a case when

the judge is disqualified by opera-

tion of a statute

RULES OF CHIEF ADMINISTRATOR OF THE

COURTS: PART 100: JUDICIAL CONDUCT

§ 100.3(c) Disqualification (1) A

judge shall disqualify himself or

herself in a proceeding in which

his or her impartiality might

reasonably be questioned,

Here Judge Austin is facing federal

lawsuits by both Petitioner and her son,

Mr Collins. Judge Austin has closed the

court to the public, lacks subject matter

jurisdiction pursuant to New York State

Constitution and supporting state sta-

tutes and case law, etc.

(44)

The State has not denied that Judge

Austin had a personal interest in issuing

a warrant for Petitioner's son's arrest

for failure to appear before him because

of Mr Collins' refusal to participate in

a trial in which he faces 6 months incar-

ceration in a closed courtroom and over

which Judge Austin knows he has no

authority over any of the issues between

Mr Collins and Ms Carella concerning

Support, custody and visitation as there

has never been a referral of the issues

to the family court from the supreme

court as required by the New York State

Constitution as well as supporting state

Statutes and case law.

Judge Austin had a direct interest

in the outcome of the family court pro-

ceeding because of the lawsuits filed

against him and the other family court

judges for issuing court orders that the

(45)

State Constitution and state statute

specifically deprives them of jurisdic-

tion to issue.

Had Mr Collins shown up to court he

faced six months in jail for violating

the family court order for support. This

trail was to be held behind closed doors

as Family Court Act § 433 (a) states that

"the court may exclude the public from

the courtroom in a proper case". This is

unconstitutional pursuant to the United

States Supreme Court. Argersinger Vv.

Hamlin, 92 S.Ct. 2006 (1972) at 2008:

[1] ..., provides specified stand-

ards for "all criminal prosecutions"

One is the requirement of a "public

trial". In re Oliver, supra, held

that the right to a "public trial"

was applicable to a state proceeding

even though only a 60 day sentence

was involved. 33 U.S., at 272, 68

$.Ct., at $07.

Another guarantee is the right to be

informed of the nature and cause of

the accusation. Still another, the

right of confrontation. Pointer v.

(46)

Texas, Supra. And another, compul-

sory process for obtaining witnesses

in one's favor. Washington v. Texas,

Supra. We have never limited these

rights to felonies or to lesser but

serious offences.

In Washington v. Texas, supra, we

said, We have held that due process

requires that the accused have the

assistance of counsel for his de-

fence, that he be confronted with

witnesses against him, and that he

have the right to a speedy and

public trial." 388 U.S., at 18, 87

S.Ct. at 1922. Respecting the right

to a speedy and public trial, the

right to be informed of the nature

and cause of the accusation, the

right to confront and cross-examine

witnesses, the right to compulsory

process for obtaining witnesses, it

was recently stated, “It is simply

not arguable, nor has any court ever

held, that the trial of a petty

offense may be held in secret, or

without notice to the accused of the

charges, or that such cases the

defendant has no right to confront

his accusers or to compel the atten-

ance of witnesses in his own behalf"

Junker, The Right to Counsel in

Misdemeanor Cases, 43 Wash.L.Rev.

685, 705 (1968).

Petitioner has clearly demonstrated

throughout the Complaint that her son's

Sixth Amendment Rights have been consis-

(47)

tently violated by the New York State

Judiciary in order to threaten and/or

force and/or intimidate Petitioner into

supporting Mr Collins and Ms Carella.

Under the law, Mr Collins is enti-

tled to a court of proper jurisdiction,

which is being denied as the family court

has no authority to enforce or modify any

court order concerning support, custody

and visitation withovt a referral from

the supreme court; right to assistance of

counsel which means effective counsel who

will protect his rights and as documented

Mr Collins cannot even find out why he

cannot see his children nor has counsel

taken any action to have the court open

to the public; right to call witnesses

to testify which the attorney appointed

by Judge Austin is refusing to do and

the transcripts from the previous trials

clearly show that Mr Collins has been

(48)

denied his right to cross-examine wit-

nesses on their testimony, denied his

right to object to questions being asked

and these other trials were also held

behind closed doors when Mr Collins was

previously sentenced to jail.

Mr Collins has clearly argued

this in his Petition for Writ of Certi-

Oorari to the U.S. Supreme Court under

Docket No. 91-1552 filed on March 27,

1992. The State did not deny that Mr

Collins' rights are being violated nor

has the State denied that the family

court judges were not authorized to

determine the issues between Mr Collins

and Ms Carella pursuant to the New York

State Constitution.

This Complaint is not barred by New

York's three year statute of limitations.

Briley v. State of Cal., 564 F.2d

849 (1977) at 850, 855.

(49)

7. Where civil rights plaintiff has

been injured by fraud or concealment

and remains ignorant of it without

any fault or want of diligence on

his part the statutory limitations

period does not begin to run until

the discovery of the injury. 42

B.8.C.A. 9.1983

ag icche ia

The established rule, which we apply

in this case is that, where a plain-

tiff has been injured by fraud or

concealment and remains in ignorance

of it without any fault or want of

diligence on his part, the statutory

period does not begin to run until

the discovery of the injury. Holm-

berg, supra, 327 U.S. at 397, 66

S.Ct. 582; Hilton, supra, 522 F.2d

at 602;

The fraud in this case is the fact

that the judges have acted in complete

absence of all jurisdiction as the New

York State Constitution, state statute

and case law specifically deprived them

of subject matter jurisdiction and the

fact that they lacked personal juris-

diction over Petitioner in order to

deprive her of her property and to place

(50)

a personal obligation upon her to sup-

port Mr Collins and Ms Carella.

Petitioner did not discover that

Family Court was without jurisdiction to

enforce or modify the supreme court order

pursuant to the State Constitution, the

Family Court Act and case law until 1991.

Petitioner did not discover until

1991 that the court also needed personal

jurisdiction over her in order to deprive

her of her property and to place a per-

sonal obligation upon her to support Mr

Collins and Ms Carella.

It can also be argued that Petition-

er did not have any tangible proof that

the family court judges were relying on

her assets in determining Mr Collins

Support obligation until the Appellate

Court ruling dated January 26, 1989

which “is within the three year statute

of limitations. Even with this decision

(51)

Petitioner was not aware that the judges

were acting without jurisdiction which

deprives them of their immunity.

Judge James awarded Ms Carella pos-

session of the real property on April 22,

1986. It was not until September 13, 1989

when Mr Carola filed his Answering Motion

to Ms Carella's Motion to Dismiss tke

Supreme Court complaint that Petitioner

found out that Judge James had no author-

ity to award Ms Carella possession of the

property.

Judge Simone sentenced Mr Collins to

jail on January 25, 1988. It was never

argued in the appeal that Judge Simone,

as a Surrogate Court judge, had no au-

thority to hear a family court matter. It

wasn't until Mr Collins started his fe-

deral action in 1991 that Petitioner

found out.

Judge James and Judge Austin's

(52)

et aah al

actions in hindering, obstructing and

prejudicing Petitioner's case in the

state supreme court are all within the

three year statute of limitations as

well as Judge Plumadore's actions in

allowing them to interfere with the

proceeding by issuing orders to put Ms

Carella in a superior position without

having jurisdiction to issue said orders.

Hofferber v. The First National Bank

of Guyman, Oklahoma, 437 F.Supp. 788:

It is beyond doubt that property

rights are protected by the Four-

teenth Amendment and violations

thereof can be redressed by suit

under 42 U.S.C. § 1983. Lynch v.

Household Finance Corp., 405 U.S.

938, 92 S.Ct. 1113, 31 L.Ed@.2d 424

(1972);

Acquisition, enjoyment and aliena-

tion of property are among those basic

constitutional rights protected by Civil

Rights Act of 1871. 42 U.S.C.A. § 1983.

Privitera v. Town of Phelps, 79 A.D.2d

(33)

1, 435 N.Y.S.2d 402. Jones Vv. Alfred H.

Mayer Co., 392 U.S. 409, 432, 88 S.Ct.

2186, 2199.

When Judge James awarded Ms Carella

exclusive possession of Petitioner's

real property while lacking both personal

and subject matter jurisdiction she was

denied due process under the Fourteenth

Amendment. Petitioner was also denied due

process when the judges placed a personal

obligation upon her to support Mr Collins

and Ms Carella or face the loss of her

property to foreclosure and/or taxes or

face her son going to jail if she did

not pay her son's support obligation.

Petitioner has also demonstrated

that she has been denied equal protection

of the laws in both the family court

proceedings and in the state supreme

court proceeding.

Dinwiddie v. Brown, C.A.Tex.1956,

(54)

230 F2d 465, certiorari denied 76 S.Ct.

1041, 351 U.S. 971, holds where state

officers conspire with private individu-

als to defeat or prejudice litigant's

rights in state court, litigant is there-

by denied equal protection of laws by

persons acting under color of state law,

and cause of action is created cognizable

by federal courts under this section.

Petitioner has documented that the

family court orders issued by Judge James

and Judge Austin were designed to defeat

and prejudice Petitioner's supreme court

proceeding to gain possession of her

property. Because of these family court

orders Petitioner has been unable to

remove Ms Carella from the premises in

order to sell the property. It has been

almost three years since Petitioner

Started the proceeding in order to gain

possession of her property.

(55)

The District Court and the Court of

Appeals relied on the Rooker~Feldman

doctrine, that the district court lacks

jurisdiction to review state court decis-

ions. Petitioner is not asking the feder-

al district court to sit in review of the

state court proceedings. The basis of

Petitioner's Complaint is that the family

court judges lacked both personal juris-

diction over Petitioner as well as sub-

ject matter jurisdiction over the issues

before them that gave Ms Carrella exclu-

sive possession of Petitioner's real

property and placed a personal obligation

upon her to support Mr Collins and Ms

Carella. As the judges issued their

orders in complete absence of ali juris-

diction those orders are null and void.

Whether or not Petitioner did appeal or

did not appeal the family court rulings

as one "aggrieved" by the decisions is

(56)

not relevant to the case. The question is

did the family court judges have both

personal jurisdiction and subject matter

jurisdiction to render their deicisions

in the first place. The answer is an

emphatic: NO! Therefore, they are liable

under 42 U.S.C.A. § 1983 for the viola-

tion of Petitioner's Constitutional

rights to due process and equal protec-

tion of the law. Therefore, the Rooker-

Feldman doctrine is not applicable.

The Eleventh Amendment is also not

applicable to this case. This amendment

barres claims for monetary damages

against state officials who are acting

within their "official" capacities. The

family court judges in this case were not

acting within the scope of their juris-

diction or their "official" capacities

as they lacked both personal jurisdiction

as well as subject matter jurisdiction.

(57)

sane 0D Ss GSA cd Pile 7s dale alan asides cede

im A pao Vek

The federal district court and the

Court of Appeals also relied upon the

Younger doctrine as there is a pending

state court proceeding. First, the vio-

lation of Petitioner's constitutional

rights by defendants in this action

Camct be vindicated in the state court

proceeding. The defendants in this action

are not parties to the state court pro-

ceeding, therefore, the damages that they

have caused Petitioner by their actions

in clear absence of all jurisdiction

is not before the state court.

Second, the only important state

issue that seems to be implicated is the

State wanting to cover up the illegal

actions taken by its employees against

Petitioner. The State has already admit-

ted that the family court lacked personal

jurisdiction over Petitioner as she was

not a party to the family court proceed-

(58)

ings when Judge James gave Ms Curwa Xa

"exclusive" possession of Petitioner's

property. She was also not a party to the

family court proceedings that used her >

assets in determining her son's support

obligation and then sentenced her son to

jail when she refused to come up with the

money to pay for her son's support obli-

gation.

Third, Petitioner does not have an

avenue open for review of her claims

against the judges in the state court

proceeding. As documented in the Com-

plaint, the New York State judiciary is

covering up and allowing the family court

judges to continue to issue orders that

have a direct effect upon the state court

proceeding while knowing that these

judges lack subject matter jurisdiction

over the issues upon which they are

ruling.

ha 4 ROE RAI 0 oh Pree

RM ks

Fourth, Petitioner is relying upon

the state laws which the State Judicial

System wants to ignore and is refusing to

enforce thereby, depriving Petitioner of

due process and equal protection of the

law as required by the Fourteenth Amend-

ment to the U.S. Constitution.

Federal Courts have a duty to enter-

tain solid claim of unconstitutional

restraint by state under color of its

law, and jurisdiction of federal court

is not defeated by anything which may

occur in state proceedings. Smith v.

State of Kansas, C.A.Kan.1966 356 F.2d

654, certiorari denied 88 S.Ct. 154,

389 U.S. 871.

Schorle v. City of Greenhills, 524

F.Supp. 821, 826, 828 (1981) held:

[4] ...It is asserted that any

individual charged with a criminal

offense has a right to be fairly

appraised of his constitutional

protections and has a right to have

(60)

the matter heard in a court of prop-

er jurisdiction. The only relief

available to such an individual

arises under the Civil Rights Act.

..-The thrust of plaintiff complaint

is that he was repeatedly deprived

of certain fundamental rights by the

concerted actions of the officials

and employees of the City of Green-

hills and by a judge of a court that

had no jurisdiction to hear the

matter. The continuum of incidents

inextricably entwined, which culmin-

ated in the plaintiff's conviction

in the Greenhills' Mayor's Court,

demonstrates not that he was falsely

accused or that he was falsely

arrested or imprisoned but rather

that he suffered injury to his

rights guaranteed under the consti-

tution - his rights to counsel, to

be advised of his right to a jury

trial, to have the matter heard in a

court of proper jurisdiction, and

not to be sentenced in excess of the

permitted penalty. It is not for

this court to break plaintiff's com-

plaint down into isolated incidents

which would, if taken separately,

bear some token resemblance to

various state common law torts. This

is because it is the series of

events, the totality of acts done

under color of state law, which have

allegedly deprived plaintiff of his

rights under the constitution. And,

it is this continuum of events, for

which there is no adequate state

relief, that comprises a cause of

action under § 1983 that is broader

(61)

;

than a common law tort. Indeed,

Title 42 U.S.C. § 1983 is only one

example of sweeping legislation

enacted by Congress to provide

relief for citizens for whom the

state cannot or will not provide

adequate relief.

Where fundamental civil rights are

at issue, federal court should hesitate

to abstain Jones v. Metzger, C.A.Ohio

1972, 456 F.2d 854. While the exercise

of abstention is discretionary, federal

courts have a special duty to exercise

jurisdiction in civil rights cases. Coch-

ran v.Ensweller, D.C.Ind.1974, 372

F.Supp. 471. Devil v. Sosbe, C.A.1972,

465 F.2d 169 held the use of abstention

in cases involving civil rights is not

to be encouraged.

Petitioner also asked for an injunc-

tion against tne state court judges from

taking further action against her in vio-

lation of her rights. This was in part

based upon the fact that Ms Carella has

(62)

filed a suit against her, her husband and

Mr Collins for the violation of her

rights because Petitioner is trying to

remove her from the house. The state

judge is refusing to dismiss the com-

plaint even though he knowingly lacks

subject matter jurisdiction over the

issues raised in the complaint. pursuant

to the N.Y.S. Const. and state statute.

When there is deprivation of consti-

tionally guaranteed right, duty of feder-

al court to use injunctive power to in-

terfere with conduct of state officers

cannot be avoided. Woods v. Wright, C.A.

Ala.1964, 344 F.2d 369.

Javits v. Stevens, D.C.N.Y.1974, 382

F.Supp. 131 held:

[5] ...Our Court of Appeals has held

that:

"(N]o sound reason exists for hold-

ing that federal courts should not

have the power to issue injunctive

relief against commission of act in

(63)

nah te AO rane EO Mis aaa:

a as ie any:

violation of plaintiff's civil

rights by state judges acting in

their official capacity.

Petitioner has clearly demonstrated

that the family court judges lack juris-

to issue any order to prejudice or defeat

her case in supreme court thereby being

deprived of due process.

Judge Plumadore's actions in his

failure to protect Mr Collins rights as

he has the authority to do so pursuant

to N.Y.S. Const. Art 6, § 19(a) and

his part in the conspiracy to allow

Judges James and Austin to issue orders

in clear absence of all jurisdiction and

then to rely upon these decisions for the

basis of his decisions. Also, Judge Plum-

adore's deliberate action in stalling the

Supreme court proceeding until Judge Aus-

tin can try and sentence Mr .Ccollins to

jail in a closed courtroom is a denial of

equal protection of the law.

(64)

CONCLUSIONS

The Petitioner has amply demonstrated

the violations of her Constitutional

Rights under Civil Rights §§ 1983 and

1985 enacted pursuant to constitutional

mandate and in light of the clear rulings

of the Supreme Court regarding judicial

immunity and the other issues raised by

Petitioner.

Petitioner, Elinor S. King,

prays this court to grant certiorari,

reverse the decision holding the Respon-

dent Judges have immunity for their

actions and finding that Petitioner's

Constitutional rights have been violated

by those acting under color of state

law.

Respectfully submitted,

~ ; .

ELINOR S. KING ~ "4

Petitioner - Pro ge

108 Brunswick Road

Troy, New York 12180

(518) 274-1418

(65)

APPENDIX

ee ee ea A eer re ee

Exhibit 1 U.S. Court of Appeals

Second Circuit, Order

(91-9317) Signed 5/08/92

Entered 5/08/92

Exhibit 2 U.S. District Court

Order Signed 11/29/9lr

(91-CV-0952) Filed 11/29/91

(66)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United

States Court of Appeals for the Second

Circuit, held at the United States Court-

house in the City of New York, on the

8th day of May, one thousand nine hundred

and ninety-two.

Present:

Hon. James L. Oakes,

Chief Judge,

Hon. J. Edward Lumbard,

Hon. John M. Walker,

Circuit Judges.

ELINOR S. KING

)

Plaintiff-Appellant ) 91-9317

)

Vv. )

) Filed

L. Foster James, et al., ) 5/8/92

)

Defendants-Appellees.

ORDER

Elinor S. King, pro se, appeals from

an order of the United States District

Court for the Northern District of New

York, Neal P. McCurn, Chief Judge, which

dismissed King's action brought pursuant

to 42 U.S.C. § 1983 (1988). For reasons

Exhibit 1 - Page l

stated by the district court, we affirm.

It is hereby Ordered, Adjudged, and

: Decreed that the order of the district

court be and it hereby is affirmed.

Exhibit 1 - Page 2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

ELINOR S. KING )

Plaintiff )

Vv.

JUDGE L. FOSTER JAMES )

STEPHEN A. FERRADINO ) 91-CV-0952

JOHN A. SIMONE, JR. )

JAN H. PLUMADORE ) Filed 11/29/92

JOHN AUSTIN )

JOHN J. WARNER, JR. )

)

Defendants

MEMORANDUM-DECISION AND ORDER

Introduction

Plaintiff Elinor King is proceeding

pro se. In her 78 page complaint, with

attached exhibits totalling approximately

200 additional pages, plaintiff alleges

29 causes of action(l) and is seeking

(1) Many of those so-called “causes

of action" clearly are not; they are sim-

ply statements of the alleged facts. For

example, in her "third cause of action,"

plaintiff recites from selected portions

of her son's separation agreement and

divorce decree. Complaint at 5, 4% 21 and

23. Plaintiff then goes on to property.

Id. at 4@ 24-25. Those are the only

Exhibit 2 - Page l

allegations in the purported "cause of

action." Plaintiff does not even attempt

to assert any legal claim based upon any

of those factual allegations.

$175,000.000.00 in damages against six

defendants. During the relevant time

frame, five of those defendants were

judges in the New York State court system

and one was a family court hearing

examiner. It is extremely difficult, if

not impossible, to discern the exact

nature of these numerous claims. The

complaint does expressly state, however,

that plaintiff is claiming a violation

of her due process and equal protection

rights. Complaint at 4 14. In addition,

although not explicitly stated, it cer-

tainly may be inferred that plaintiff is

alleging a conspiracy to deprive her of

her property under 42 U.S.C. § 1983. See

Id. at @ 13.

Before answering, defendants have

Exhibit 2 - Page 2

moved to dismiss the complaint on five

separate grounds: (1) lack of subject

matter jurisdiction; (2) failure to state

a Claim; (3) statute of limitations; (4)

eleventh amendment immunity; and (5)

absolute inmunity. In addition, defen-

dants contend that the court shouid

abstain due to én ongoing state court

proceecing. Lastly, defendants are seek-

ing sanctions, attorneys' fees and costs.

As will be seen, plaintiff's complaint is

subject to dismissal on any number of

these various alternate theories.

Background (2)

(2) Defendants' recitation of the

facts was rather terse and of little

assistance to the court. The complaint

itself is not heijipful in outlining the

relevant facts. So, the court was left

with the task of reconstructing the

factual background and procedural history

cf this case from the numerous exhibits

attached to the complaint. Those exhibits

consist of, for the most part, copies of

crders and portions of transcripts in

Exhibit 2 - Page 3

various state court proceedings.

This lawsuit has its origins in the

divorce of plaintiff's son, Charles E.

Collins, III, from Arlene Carella.

Divorce proceedings began some time in

1980 when Mr. Ccllins and Ms. Carella

entered into a separation agreement. Mr.

Collins and Ms Carella were legally

divorced on August 3, 1981. Thereafter,

Mr. Collins and Ms Carella were involved

in a number of state court proceedings,

resulting in a host of orders, decisions,

and judgments. For example, Mr. Collins

brought an action to modify the judgment

of divorce, seeking custcdy of their

three children. In addition, over the

years Ms. Carella brought several

violation petitions against Mr. Collins

for his failure to comply with court

ordered support obligations.

Exhibit 2 - Page 4

Although the specifics of those

various proceedings are not necessary to

an understanding of this case, one crder

is of particular significance. Several

years after the divorce was final, in

1984, with the help of plaintiff and her

husband, Mr Collins bought a house in

Saratoga County and turned possession

over to his ex-wife to reside in with

their three children. Complaint, Ex. 27

thereto at 4. Ms. Carella and the chil-

dren have continued to reside there since

that time. On April 22, 1986, defendant

James, a New York State Family Court

Judge, granted Ms. Carella “exclusive

possessicn" of that prcperty. Id., Ex. 12

thereto at 5, 4 1. Thereafter on November

6, 1°€6, Mr. Collins transferred his

interest in the subject property to

plaintiff. Id.., Ex. 6 thereto. As a2

result of that transfer, plaintiff and

Exhibit 2 - Page 5

— ,

her husband became the sole owners or

tke subject property. The gist of plain-

tiff's complaint herein sems to te that

the effect of that order by defendant

James was to ceprive plaintiff of her

property without due process of law.

On approximately July 13, 1989,

plaintiff anc ker husband commenced a

real property proceeding in state court,

essentially seeking tc evict Ms. Carella

from the house. Id., Ex. 40 thereto.

That acticn has been proceeding alcng,

albeit slowly. In February, 1990,

defendant Plumadore, a New York State

Supreme Court Justice, denied the motion

by plaintiff and her husband for surmary

judgment therein. Id., Ex. 47 thereto.

The record before this court does not

establish what has transpired since

then, except that on January 23, 1991,

the court ncted that based upon his

Exhibit 2 - Page 6

answer, Mr. Collins was no longer a party

to that action. Id., Ex. 55 thereto.

What is clear, however, is that the state

court action is still pending.

Plaintiff and her family are no

strangers to litigation. In fact, ir

1990, plaintiff's son attempted to remove

the family court proceeding to federal

court. Mr. Collins was unsuccessful in

that effort; Judge Howard G. Munscn

remanded the matter back to state court.

Mr. Collins then eventually conmenced

three actions in feceral ccurt, all

assigned to Jucge Thomas McAvoy. Jucge

McAvoy dismissed all three actions énd

awarced sanctions against Mr. Collins in

one cf the suits, finding that he had

"engaged in vexatious lanc baseless

litigation fully aware that his claims

are destined to fail." Affidavit of

Mary Ellen Clerkin (September 19, 1991),

Exhibit 2 - Page 7

Ex. A thereto at 4. As previously

menticned, plaintiff is a party to the

real property state court action, but she

was not a party to any of the previous

federal court cases.

Discussion

a Subject Matter Jurisdiction

Although not the first argument raised by

defendants, the court will address lack

of subject matter jurisdiction at the

outset, because if defendants are correct

in that regard, the court need not

consider the other reasons for dismissal

advanced by them.

The complaint is very difficult to

understand, but it appears that plaintiff

is challenging a number of prior orders

and decisions, made in various state

court proceedings, all os which pertain

to the divorce of her son. Defendants

contend, under what has come to be known

Exhibit 2 - Page 8

as the Rooker-Feldman doctrine, that this

court lacks jurisdiction to review those

state court decisions. In Rooker v.

Fidelity Trust Co., 263 U.S. 413, 415-16,

44 S.Ct. 149, 150, 68 L.Ed. 362 (1923),

the Supreme Court held that an appeal

through the state courts to the Supreme

Court of the United States constituted

the exclusive procedure by which the

challenged state court judgment might be

reviewed for constitutional error. The

Court then explained that under the

predecessor to 28 U.S.C. § 1257:(3)

(3) That statute provides, in rele-

vant part:

Final judgments or decrees

rendered by the highest court

of a State in which a decision

could be had, may be reviewed

by the Supreme Court by writ of

certioari. « <« +

28 U.S.C. §1257 (a) (West Supp. 1991).

Exhibit 2 - Page 9

If the constitutional questions

Stated in the bill actually arose

in the cause, it was the province

and duty of the state courts to

decide them; and their decision,

whether right or wrong, was an

exercise of jurisdiction. If the

decision was wrong, that did not

make the judgment void, but merely

left it open to reversal or modifi-

cation in an appropriate and timely

appellate proceeding. .. Under the

legislation of Congress, no court of

the United Stated other than this

court could entertain a proceeding

to reverse or modify the judgment

for errors of that character.

To do so would be an exercise of

appellate jurisdiction.

id. at 415-16, 44 S.Ct. at 150. In

Atlantic Coast Line R. Co. v. Brotherhood

of Locomotive Engineers, 398 U.S. 281, 90

S.Ct. 1739, 26 L.Ed2d 234 (1970), the

Supreme Court reaffirmed the Rooker

doctrine, stating:

Again, lower federal courts possess

no power whatever to sit in direct

review of state court decisions. If

(the party seeking the injunction]

was adversely affected by the state

court's decision, it was free to

seek vindication of its federal

right in the [state] appellate

courts and ultimately, if necessary,

Exhibit 2 - Page 10

in this court.

d. at 296, 90 S.CT. at 1748. And more

recently, in District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 103

S.Ct. 1303, 75 L.Ed.2d 206 (1983), the

Court recognized the continuing validity

of Rooker:

The District of Columbia Circuit

properly acknowledged that the

United States District Court is

without authority to review final

determinations of the District of

Columbia Court of Appeals in judi-

cial proceedings. Review of such

determinations can be obtained

only in this court.

Id. at 476, 103 S.Ct. at 1311.

In Texaco Inc. v. Pennzoil Co., 784.

F.2d 1133 (2d Cir. 1986), rev'd on other

grounds, 481 U.S. 1, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987), the Second Circuit

offered the following summary of the

Rooker-Feldman doctrine:

In short, an inferior federal court

established by Congress pursuant to

Exhibit 2 - Page 11l

Art. III, § 1, of the Constitution

may not act as an appellate tribunal

for the purpose of Overruling a

State court judgment, even though

the judgment may rest on an errone-

Ous resolution of constitutional or

federal law issues. The exclusive

procedure for federal review is that

specified by 28 U.S.c. § 1257.

Id. at 1142. It should be noted that

there is no requirement that a state

court judgment be fully appealed through

the state system as a condition precedent

to the application of the Rooker-Feldman

doctrine. See Texaco, 784 F2q at 1142-43.

The Rooker-Feldman doctrine general-

ly arises in a situation where a plain-

tiff seeks to collaterally attack, in a

federal action, an adverse judgment ren-

dered against him or her in state court.-:

In other words, the plaintiff is usually

attempting to convert the appeal of a

State court judgment into a federal

action under 42 U.S.c. § 1983. At first

glance, this does not seem to be the

Exhibit 2 - Page 12

—

situation here, because, with the excep-

tion of the real property proceeding,

which will be fully discussed herein,

plaintiff King was not a party to any of

the state court proceedings which she now

seems to be challenging. And, therefore,

arguably, sne is not trying to convert

the appeal of a state court judgment into

a § 1983 action.

Closer analysis reveals, however,

that the Rooker-Feldman doctrine is

applicable here. That is so because even

though plaintiff was not a party to those

various state court proceedings, she did

have standing to appeal as one"aggrieved"

by the judgments which affected her

property interest. The general rule under

New York law is that only an "aggrieved

party" may appeal. See N.Y. Civ. Prac. L.

& R. § 5511 (McKinney 1978). That statute

has been expansively interpreted by the

Exhibit 2 - Page 13

New York courts, however, and under

§ 5511 a nonparty may appeal when that

party may be bound by a judgment if he or

she does not take affirmative action in

the litigation to protect his or her

rights. Auerbach v. Bennett, 64 A.D.2d

98, 408 N.Y.S. 2d 83 (2a Dep't 1978),

mod'd on other grounds, 47 NY2d 619, For

example, in People v. Dobbs Ferry Medical

avillion, 40 A.D.2d 324, 340 N.Y.S.2d

—_—_—_———

108 (2d Dep't), aff'd, 33 N.Y.2d 584, 347

N.Y¥.S.2d 452 (1973), the court held that

nonparty doctors had Standing yo appeal

from an injunction barring the performing

of abortions at certain premises, because

that injuncticn, by its terms, extended

to all persons having Knowledge thereof.

ID. at 325, 340 N.Y¥.S.2d at 110. Similar-

ly, in Triangle Pacific Bldg. Products

N.¥.S.2d 121 (2nd Dep't 1978), the court

Exhibit 2 - Page 14

held that where a turnover order would

consume an entire bank account, the

person who claimed an interest in the

account and who was presumptive owner of

one-half of the account proceeds was

"aggrieved" by the order and had standing

to appeal therefrom, even though she was

not named in the special proceeding. ld.

at __, 404 N.Y.S.2d at 122.

Surely, plaintiff King was aggrieved

by the state court decisions pertaining

to the residence in which she has partial

ownership interest. Plaintiff King was

particularly aggrieved by the order

granting Ms. Carella "exclusive posses-

sion" of property in which she [Ms. King]

has a partial ownership interest. Thus,

as one aggrieved by such an adverse

order, Ms. King could have appealed. She

did not. Therefore, the Rooker-Feldman

doctrine precludes plaintiff from now

Exhibit 2 - Page 15

coming into this federal court and seanh-

tially seeking review of state court

judgments, decisions and/or orders, which

she could have appealed through the state

system, and, if necessary, to the Supreme

Court of the United States. Consequently,

defendants' motion to dientas for lack of

subject matter jurisdiction must be

Granted insofar as the complaint is based

prior state court decisions, judgments,

and/or orders, by which this plaintiff

was aggrieved.

The Court makes one final observa-

tion. It does not appear to the court

that plaintiff King is also seeking to

attack any orders or decisions already

rendered in the state court real property

proceeding, to which she is a party. To

the extent that she may be however, the

Rooker~Feldman doctrine would clearly

preclude’ the exercise of this court's

Exhibit 2 - Page 16

jurisdiction in that regard as well.

ee Abstention

With respect to any claims arising

out of plaintiff's pending state court

proceeding, defendants argue that the

court should abstain under Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L’.Ed.2a@ 669 (1971). While recognizing

that abstention from the exercise of a

federal court's jurisdiction is rare,

Colorado River Water Conservation

istrict v. United States, 424 U.S. 800,

—

96 S.Ct. 1236, 47 LEd/2d 483 (1976),

nonetheless, this court concludes that

Younger abstention is proper here.(4) As

(4) Although Younger involved an

ongoing state criminal proceeding,

application of the principles enun-

ciated therein have been extended

to state civil proceedings and state

administrative proceeding where

there is a means available to review

constitutional claims. See New

Orleans Public Service, Inc. v.

Exhibit 2 - Page 17

Council of New Orleans, 491 U.S.

350, __ , 109 S.Ct. 2506, 2516, 105

L.Ed.2d 298 (1989); Ohio Civil

Rights Com. v. Dayton Christian

Schools, Inc., 477 U.S. 619, 626-28,

106 S.Ct. 2718, 2722-23, 91 L.Ed.2a

512 (1986); Middlesex County Ethics

Comm. v. Garden State Bar Ass'n.,

457 U.S. 423, 432, 102 S.ct. 42438,

2521, 73 L.Ed.2d 116 (1982); Huffman

v._ Pursue, Ltd., 420 U.S. 592, 95

S.Ct. 1200, 43 L.Ed.2d 482 (1975).

the Second Circuit explained in Cecos

Int'l, Inc. v. Jorling, 895 F2d 66 (24

Cir. 1990):

Abstention under Younger is fueled

by the notion that courts of equity

should not intervene where a party

has an adequate remedy at law,

-, and by concerns of comity and

federalism express in 'the belief

that the National Government will

fare better is the states and their

institutions are left free to per-

form their separate functions in

their separate ways.’

Id. at 70 (quoting Younger, 401 U.S. at

44, 91 S.Ct. at 750). More recently, in

Temple of Lost Sheep Inc. vy. Abrams, 930

F.2d 178. 183 (2d Cir. 1991), quoting

Exhibit 2 - Page 18

from Steffel v. Thompson, 415 U.S. 452,

460-61, 94 S.Ct. 1209, 1216, 39 L.Ed2d

505 (1974), the Second Circuit explained

the underlying purpose of Younger absten-

tion as follows:

[t]hat a pending state proceeding,

in all but unusual cases, would

provide the federal plaintiff with

the necessary vehicle for vindica-

ting his constitutional rights, and,

in that circumstance, the restrain-

ing of in ongoing [state proceeding ]

would entail an unseemly failure to

give effec to the principle that

state courts have the solemn respon-

sibility, equally with the federal

courts to guard, enforce, and pro-

tect every right granted or secured

by the constitution or the United

States.

Id. at 183. Younger abstention, involving

as it does two pending proceedings, gives

rise to conflicting jurisdictional duties

between the state and federal tribunals,

"(w]Jith the attendant possibilities that

maintenance of the federal action will

either result in duplicative legal pro-

ceedings or a disruption of the state

Exhibit 2 - Page 19

proceedings." Id. at 182. Thus, Younger

abstention "'contemplates the outright

dismissal of the federal suit, and the

presentation of all claims, both state

and federal, to the state courts.'" Id.

(emphasis added) (quoting Gibson v.

Berryhill, 411 U.S. 564, 577, 93 S.Ct.

1689, 1697, 36 L.Ed.2d 488 (1973).

It is well settled that a determina-

tion of whether to refuse to assume jur-

isdiction under Younger depends upon a

finding that (1) there is an ongoing

state proceeding; (2) an important state

interest is implicated; and (3) the

plaintiff has an avenue open for review

of his or her constitutional claims in

the state court. CECOS, 895 F.2d at 70

(citing Middlesex County Ethics Comm. v.

Garden State Bar Ass'n., 457 U.S. 423,

432, 102 S.Ct. 2515, 73 L.Ed.2@a 1I}II

(1982)). See also Christ the King

Exhibit 2 - Page 20

Regional High School v. Culvert, 815 F.2d

219,224 (2d Cir.), cert. denied, 484 U.S.

830, 108 S/Ct. 102, 98 L.Ed.2a’!lI3 (1987).

The court will consider each of those

elements in turn.

Clearly there is an ongoing state

proceeding here. It is undisputed that

plaintiff's real property proceeding is

still pending in state court. The second

requirement for the proper invocation of

Younger abstention is also present here;

that is important, vital state interests

are implicated in the state proceeding.

The area of domestic relations law, which

is part of the state court real property

proceeding by virtue of the fact that the

current occupant of the premises is there

based upon a court order entered ina

family court matter, is certainly an area

of important state interest. See, Fay v.

South Colonie Cent. School Dist., 802

Exhibit 2 - Page 21

F.2d 21, 32 (2d Cir. 1986) (domestic

relations law matter of important state

interest). Likewise, it is difficult to

conceive of an area in which the state

has a more substantial, legitimate inter-

est in regulation, than in the area of

state real property law. Accord, New

Orleans Public Serv. v. Council of New

Orleans, 491 U.S. at aes 109 S.Ct. at

2516-17 (Focus of inquiry in determining

whether state had a Substantial, legiti-

mate interest in pending proceeding for

purposes of Younger abstention, is

whether state had Substantial, legitimate

interest in regulating certain activity).

Finally, there is an avenue Open for

review Of plaintiff Kings' constitutional

Claims in the state court real property

proceeding. There is nothing in the real

Property law indicating that such a

proceeding is not the appropriate means

Exhibit 2 - Page 22

by which to raise a constitutional claim

relative to such property.(5) And, as the

(5) Indeed, the scope of the state

court action has already widely

broadened peyond that of a simple

eviction proceeding. Ms. Carella is

asserting that the 1986 conveyance

by Mr. Collins to his mother was

fraudulent. In addition, Ms. Carella

is seeking to impose a constructive

trust.

Fourth Circuit so articulately stated in

inema Blue of Charlotte, Inc. v. Gil-

christ , 887 F.2d 49 (4th Cir. i989),

cert. denied, 110 S.Ct. 1479, 108 L.Ed2d

616 (1990):

In this, as in such matters general-

ly, we indulge the assumption that

the state courts are willing and

able to vindicate federal constitu-

tional rights. The abstention condi-

tion is merely that there be a pend-

ing state proceeding in which an

opportunity to raise the constitu-

tional challenge will be available

to the federal plaintiff... .

Though we may not be sure exactly

what procedural mechanism for doing

so will be most appropriate, it is

Exhibit 2 - Page 23

not necessary that we be. It suffi-

ces to be confident that it can be

raised in some appropriate way, and

that we are.

id. at 54 (citation omitted). In short,

based upon the foregoing, this court must

decline to exercise its Jerisdiesion over

plaintiff's constitutional claims because

the pending state court proceeding pro-

vides this plaintiff with the necessary

vehicle for vindication of her constitu-

tional rights. Thus, the court must also

grant defendants' motion to dismiss

plaintiff's complaint, with respect to

any claims arising out of the Ongoing

State court proceeding, on the basis of

Younger abstention.

Tit. Failure to State a Claim

In light of the foregoing, plain-

tiff's only remaining claim is a con-

Spiracy under 42 U.S.C. § 1983. That

Claim too cannot be allowed to stand. As

Exhibit 2 - Page 24

this court recently stated in Upper

Hudson Planned Parenthooa, Inc. v. Doe,

1991 U.S. Dist. LEXES 130635 (N.D.N.Y.

September 12, 1991):

i a

The Second Circuit "[h]Jas recog-

nized that certain claims are so

easily made and can precipitate

such protracted proceedings with

such disruption of governmental

functions that, despite the general

rule of Conley _v. Gopson, 355 U.S.

41 (1957), detailed fact pleading

is required to withstand a motion to

dismiss." .. . . Thus, the Second

Circuit has consistently held that

complaints containing only "conclu-

sory," "vague," or "general allega-

tions" of a conspiracy to deprive a

person of constitutional rights will

be dismissed. Ostrer v. Aronwald,

567 F.2d 551, 553 (2d Cir. 1977) and

cases cited therein). In Ostrer the

Second Circuit further explained

that "[dJiffuse and expansive alle-

gations [of a conspiracy] are insuf-

ficient, unless amplified by specif-

ic instances of misconduct." Id.

(citing Build of Buffalo, Inc. v.

Sedita, 441 F.2d 284. 288 (2d Cir.

1971). Thus, in Ostrer the Court

held: [a]ppellants' unsupported

allegations, which fail to specify

in detail the factual basis neces-

sary to enable appellees intelli-

gently to prepare their defense,

will not suffice to sustain a claim

of governmental conspiracy to de-

Exhibit 2 - Page 25

Prive appellants of their constitu-

tional rights. Id. (citations omit-

ted). x

Id. at *33 - *34 (citation omitted)

(footnote Omitted).

Applying those standards to the

present case, it is clear that Plaintiff

~ has not adequately pled a conspiracy to

déprive her of her constitutional) rights.

In her complaint, plaintiff makes only

the vague, conclusional allegation that:

Judges James, Ferradion, Simone,

Austin, Plumadore and Hearing

Examiner Warner had an agreement

with each other and with Ms Carella

and her attorneys, .. . to rule

favorably on Ms Carella's petitions,

to deprive Plaintiff of her proper-

ty, to force Plaintiff to Support

Ms Carella and to frustrate any

action kby Plaintitf and her son,...

Complaint at 4 13 (emphasis added). She

does not Specifically plead any overt

acts; nor does she provide a basis in

fact for this claim. Apart from that one

allegation, there are no Other allega-

Exhibit 2 - Page 26

tions in the complaint pertaining to this

alleged conspiracy. Indeed, there are not

even any allegations from which it can be

inferred that such a conspiracy existed.

Thus, without more, plaintiff's conspir-

acy Claim cannot be allowed to stand. See

Polur v. Raffe, 912 F.2d 52, 56 (2d Cir.

1990) ("vague, prolix allegations of a

conspiracy without pleading any overt

acts or providing a basis in fact" insuf-

ficient to state a conspiracy cause of

action); Rigby v. Coughlin, 730 F.Supp.

1196, 1200 (N.D.N.Y. 1990) (dismissing

conspiracy claim were plaintiffs "simply

allege[d] that the defendants ‘conspired

together', and ‘knowingly acted in collu-

sion'. .. ."“).(6) Defendants' motion to

(6) See also Sommer v. Dixon, 709

F.2d 173, 175 (2a Cir. 1983), cert.

denied, 464 U.S. 857, 104 S.Ct. 177,

71 L.Ed.2d 158 (1983) (affirming

dismissal of complaint where "alle-

Exhibit 2 - Page 27

gations as to a conspiracy [werej

- vague and unsupported by

description of particular overt

acts."); Powell v. Workmen's Compen-

Sation Bd., 327 F.2d AZik, 37 (2e

Cir. 1964) (affirming dismissal of

complaint where plaintiff failed to

"[aJllege with at least some degree

Of particularity overt acts which

defendants engaged in which were

reasonably related to the promotion

of the claimed conspiracy.")

dismiss the complaint, insofar as it

alleges a conspiracy claim, therefore is

also granted.

IV. Other Bases for Dismissal

Because the court has determined

that dismissal of the complaint is appro-

priate for the reasons just discussed, it

is not essential that the court consider

the other grounds offered by defendants

as a basis for dismissal. Primarily for

the benefit of plaintiff, however who is

proceeding without counsel, the court

will briefly address those other grounds.

Exhibit 2 - Page 28

First, with respect to the statute

of limitations, defendants are correct

that a § 1983 action is governed by the

three year residual or general personal

injury statute of limitations. See Owens

v. Okure, 488 U.S. 235, 109 SCt. 573, 102

L.Ed.2d 594 (1989). In the present case,

plaintiff filed her complaint on August

22, 1991. Therefore clearly insofar as

her complaint states claims based upon

events which happened prior to that three

year time frame, such claims are time

barred.

Second, defendants rightly contend

that any claim for monetary damages

against the defendants in their official

capacities is barred by the eleventh

amendment. See Tekkno Laboratories, Inc.

v. Perales, 933 F2d 1093, 1097 (24. Cir.

1991) (citing Edelman v. Jordan, 415 U.S.

651, 94 S.Ct. 1347, 39 L.Ed.2d 662

Exhibit 2 - Page 29

(1974)). Nowhere in her complaint did

plaintiff specifically state whether she

is suing defendants in their official or

in their personal capacities. Presumably

it is the former because all of the

allegations against these defendants

pertain solely to acts performed by them

in their capacity as judicial officers.

Thus, the eleventh amendment is a bar to

all of plaintiff's claims for monetary

damages against these defendants in their

official capacities. It should be noted

that plaintiff is only seeking to recover

monetary relief; she is not seeking

injunctive relief of any kind. See

Complaint at 44 163-166.

Third, in a similar vein, defendants

argue that they are absolutely immune

from liability here because the allega-

tions against them arise out of events

which occurred while they were acting as

Exhibit 2 - Page 30

judicial officers. In determining whether

a judge is absolutely immune from civil

liability, the focus is on the nature of

the act performed. The Second Circuit in

Maestri v. Jutkofsky, 860 F/2d 50 (2d

Cir. 1988), cert. denied, 489 U.S. 101II,

109 S.Ct. 1132, 10!| L.Ed.2d 193 (1989),

held that "[a] judge who performs a

judicial act in excess of his or her

jurisdiction is immune to civil suit; a

judge who acts in the clear absence of

jurisdiction is not." Id. at 52. The

Court in Maestri explained that a

"({jJudge will be denied immunity only

where it appears, first, that the judge

acted in the clear absence of jurisdic-

tion, and second, that the judge must

have known that he or she was acting in

the clear absence of jurisdiction." Id.

at 53. This test, as articulated by the

Second Circuit, is thus comprised of two

Exhibit 2 - Page 3l

elements - one objective, that is "[t]hat

jurisdiction is clearly absent, i.e.,

that no reasonable judge would have

thought jurisdiction proper, ...;" and

the second subjective, that is [t]Jhat the

judge whose actions are questioned actu-

ally knew or must have known of the jur-

isdictional defect . .. ." Id. Applica-

tion of that test in Maestri resulted in

a finding that the judge was not entitled

to immunity because he knowlingly acted

in the clear absence of territorial jur-

isdiction, when he signed arrest warrants

resulting in the incarceration of two

individuals.

In the present case, at oral argu-

ment plaintiff stressed that defendant

James acted in the clear absence of jur-

isdiction in awarding Ms. Carella exclu-

Sive possession of the subject property.

It is clear from her complaint, however,

Exhibit 2 - Page 32

that plaintiff is also making that argu-

ment with respect to defendants James,

Ferradino, Simone, Austin and Warner. See

Complaint at 3, 4 11.(7) To support her

(7) Given the fact that plaintiff

did not allege that defendant Pluma-

dore acted in the absence of juris-

diction, the court assumes that

plaintiff is not challenging his

jurisdiction. Therefore defendant

Plumadore is clearly enitled to

absolute immunity in that the

allegatgions against him relate only

to judicial acts performed by him.

argument, plaintiff is apparently relying

upon a letter by Justice Plumadore in

which it is stated that, "[FJamily Court

has no jurisdiction over title, marital

or otherwise; .. .- -." Complaint, Ex. 45

thereto at 2 (emphasis in original).

Assuming arquendo that plaintiff is

correct (that the defendants other than

defendant Plumadore acted in the clear

Exhibit 2 - Page 33

absence of jurisdiction), and accepting

as true, as the court must on this

motion, the allegations that defendants

knew they were sc acting, the court is

nonetheless convinced that the complaint

against these defendants is properly

dismissed, based upon the other grounds

for dismissal discussed herein. Thus in

conclusion, defendants' motion to dismiss

is hereby granted and plaintiff's

complaint is dismissed.

V. Sanctions

While defendants' frustration with

this litigation is certainly understand-

abie, sanctions are not appropriate for

two reasons. The first is that defendants

seem to be basing their request, at least

in part, on the fact that there have been

other federal actions arising out of

these facts. Yet defendants are ignoring

Exhibit 2 - Page 34

the obvious: this plaintiff was not a

party to those other actions. She shoulda

not be punished for her son's apparent

abuse of the judicial process. Moreover,

plaintiff's claims herein are different

from those asserted by her son and deemed

"baseless" by Judge McAvoy.

Secondly, plaintiff is appearing pro

se, and while that in and of itself would

not excuse an abuse of the judicial

process, it does not appear, at least

that this point, that she has engaged in

sanctionable conduct. Plaintiff's com-

plaint has been dismissed in part, based

upon legal principles, whicn even for

lawyers are not always easy to understand

and apply. It would be unduly harsh to

sanction a layperson under these circun-

stances. The motion for sanctions ky the

defendants is therefore denied.

Exhibit 2 - Page 35

VI. Cross-Motion for Preliminary

Injunction

Obviously, plaintiff's cross-motion

for a preliminary injunction has been

rendered moot by the dismissal of the

complaint.

IT IS SO ORDERED.

DATED: November 29, 1991

Syracuse, New York

[s/

Neal P. McCurn

Chief, U.S. District Judge

Exhibit 2 - Page 36

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.