Reply Brief — Hausch v. Grievance Committee Committee Committee for the Ninth Judicial Judicial District (No. 08-748)

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VS C, JAN 1 9 2009

\ \ No. 08-748 | OFFICE OF THE CLERK

In the

Supreme Court of the Gnited States

$+ SHO+—

VIVIAN L. HAUSCH,

Petitioner,

GRIEVANCE COMMITTEE FOR THE

NINTH JUDICIAL DISTRICT,

Respondent.

On Petition for Writ of Certiorari to the

New York State Court of Appeals

REPLY

VIVIAN L. HAUSCH

Pro Se Petitioner

305 Central Avenue

White Plains, NY 10606

(914) 684-1830

January 19, 2009

DICK BAILEY SERVICI

1-800-551-2028

i

TABLE OF CONTENTS

Page

PTE es ES © iiisihdkcotonsmeriwnkaenee eee 1

REASONS FOR GRANTING THE WRIT............... 2

:. Requiring the Submission of Income

Tax Returns as Part of a Motion for

Reinstatement to the Practice of Law Is

a Violation of an Attorney's

Constitutional Rights When the

Grounds for Suspension Were Not

Directly or Indirectly Related to

SUSUR TRI sich acct eee 2

Et. An Attorney May Not Properly Be

Denied Reinstatement to the Practice

of Law When She Has Been Treated

Differently From Other Attorneys................ 8

PE eI aecesdnccetivencevediiv eee eee 10

*

TABLE OF AUTHORITIES

Pages

Erdman v. Stevens

458 F2d 1205 (2d Cir. 1972), cert. denied

409 US 889, 93 S.Ct.126 (1972) ........... No

Federal Savings & Loan Assn. v. Krueger

Reet ORS CINED LIL, BOT Q) .....0.ccccsececrersccesees

Heatherman v.USDC for the Central District of

California

503 F2d 1032 (9th Cir. 1974)...

Javits v. Stevens 382 F.Supp.

I FO yore cscs sierovercesescssssereseesons

Kaufman v. Kaye and Prudenti

LEXIS 25351 (EDNY 2005), affd. 466 F2d

83 (2d Cir. 2006), cert. denied 127 S.Ct.

1828, 167 L.Ed. 320 (2007)......ccccccccsceeeceeeeees

Kingsley v. Delaware, L&W RR. Co.

20 FRD 156 (SDNY 1957) ....... Phen nmlcaireaaeetsy

Maggio v. Flynes

423 F.Supp. 144 (EDNY 1976)........... aos

Matter of Capaccta

59 NY2d 549, 466 NYS2d 268 (1983) ..........

Matte, of Dondi

63 NY2d 331, 482 NYS2d 431 (1984) ..........

6

2

6

il

Pages

Matter of Rouss

Sh TUE Bh, LEG PER FO CE yiiviscvvcvevenveccses: 6

Matter of Walker

113 AD2d 254 (1st Dept. 1985)......0...00000000.. oD

Matter of Wysell

10 AD2d 199 (1st Dept. 1960)...............0...... 7

Mildner v. Gulotta

405 F.Supp. 182 (EDNY 1975),

affd. 425 US 901, 96 S.Ct. 1489 (1976)........ o

P&N Tiffany Properties Inc. v. Maron, et al.

34 AD3d 548, 823 NYS2d 676 (2d Dept.

I os cea eee eee ee 9

Slate v. Slate

267 AD2d 839, 699 NYS2d 824

i RW a tries hnnsasuncena icetntenssesyscpusceeess 3

St. Regis Paper Company v. U.S.

368 US 208, 82 S.Ct. 269 (196}) .................. 4

Theard v. U.S.

304 US 278, 77 S.Ct. 1274 (1957) ............... 6

STATEMENT

The _petitioner’s response to the

respondent's Preliminary Statement follows. Page

references arc to its brief.

Page 1: Six of the eight charges were not

predicated upon the petitioner's alleged misconduct

in response to zoning code enforcement efforts. Proof

of this is that the respondent submitted CPLR

Article 78 proceeding papers at the hearing and

refused petitioner's demand to make the record from

the village court proceedings against her and her

corporate client part of the record 1n the disciplinary

hearing.

Pages 2-3 (a) and (b): References to “lawful

directives of the Village of Tuckahoe” and

petitioner's “conduct with respect to the Village of

Tuckahoe” are improper because all of the

informations issued against the petitioner were

dismissed and the village justice was unanimously

reversed on appeal.

Page 4, footnote: Part of the record in the

Appellate Division is documentation proving

compliance with continuing legal education

requirements, which is part of an application for

reinstatement to practice. There are no outstanding

judgments against P&N Tiffany Properties Inc. The

respondent submitted an internet paper showing

PAN Tiffany Properties Inc. owed the state tax

commission $767.00 on = 2/8/05. The Appellate

Division took no issue with the petitioner’s

statements on these matters.

2

Pages 2-7: The petitioner had to resubmit her

application for reinstatement because (1) she was

initially unaware that the Second Department had

recently rewritten its rules to require a form

affidavit and (2) she had not received the rejected

application back from the court when she submitted

her supplemental affidavit using the proper form.

This supplement was rejected because there was no

application before the court to supplement. The

court did, however, retain for the record the

respondent’s opposing papers, even though there

was no application to oppose. The petitioner then

submitted a third set of papers, which the court

accepted. Subsequent affidavits were necessary

because of the clerk’s letter and telephone call. The

petitioner's final affidavit made it clear to the court

that she would not submit her income tax returns

because the court was violating her right to privacy,

not because she had something to hide.

REASONS FOR GRANTING THE WRIT

I. Requiring the Submission of Income Tax

Returns as Part of a Motion for Reinstatement

to the Practice of Law Is a Violation of an

Attorney's Constitutional Rights When the

Grounds for Suspension Were Not Directly or

Indirectly Related to Financial Issues.

Income tax returns are discoverable “only

where a litigant himself tenders an issue as to the

amount of his income.” Kingsley v. Delaware, L&W

RR. Co. 20 FRD 156 (SDNY 1957).

3

To obtain someone’s tax records, one must

show they are necessary, material, and relevant.

Slate v. Slate 267 AD2d 839, 699 NYS2d 824 (3d

Dept. 1999).

Whereas 26 USC 6103 does not provide for

absolute privilege of income tax returns, there is a

valid public policy against their disclosure “grounded

in the interest of the government in full disclosure of

all the taxpayer’s income which thereby maximizes

revenue. To indiscriminately compel a taxpayer to

disclose this information merely because he has

become a party to a lawsuit would undermine this

policy.” Federal Savings & Loan Assn. v. Krueger 55

FRD 512 (ND II. 1972).

The form affidavit required by the Appellate

Division, Second Department, as part of an

application for reinstatement to practice is reprinted

in its entirety in Appendix L of the petition at pages

25a-32a.

The drafter of the form, the Second

Department, clearly attached the income tax return

disclosure to paragraph 20, which specifically

addresses whether tax returns were filed or, in lieu

thereof, whether a filing extension was obtained. By

the clear wording of the form, the drafter cared

about filing. If a filing extension was obtained, there

would be no tax return available to submit. Filing

was clearly the only issue.

The respondent may not now offer other

reasons for disclosure. However, if the information

sought were whether the petitioner had done any

4

work between the suspension date of December 21,

2006, and the end of the tax year December 31, 2006,

the request for income tax returns would be attached

to paragraph 14 or 15, the paragraphs that deal with

these issues and which, obviously, precede

paragraph 20. Further, if there were multiple

reasons for demanding income tax returns, the

demand would be a separate paragraph at the

beginning or the end of the form.

An income tax return does not show all that

the respondent assumes it does. In addition, for all

but ten days of the reporting year, the petitioner was

practicing law in New York State. Further, the

petitioner was and still is an attorney in that she is

admitted to practice in this honorable court.

St. Regis Paper Company v. U.S 368 US 208,

82 S.Ct. 289 (1961) does not apply because it was the

Census Act that was at issue, not the Constitution.

Even so, Congress rewrote the Census Act to

prohibit disclosure after the case was decided

because so many Americans then refused to fill out

the forms knowing the information was obtainable

by others.

Heatherman v. USDC for the Central District

of California 503 F2d 1032 (9% Cir. 1974) is

distinguishable because it was decided on FRCP

26(b)(1) grounds. Even so, the court held that tax

returns are discoverable only “in appropriate

circumstances.” In his dissent, Justice Chambers

stated that tax returns are not discoverable unless

the taxpayer puts them at issue by litigating issues

concerning his or her income.

5

Maggio v. Hynes 423 F.Supp. 144 (EDNY

1976) does not apply because at issue were (1)

whether a third party can claim a Fourth and Fifth

Amendment privilege against disclosure of a person’s

tax returns and (2) whether the plaintiff had met the

high standard required for injunctive relief, issues

not in the instant case. In his dissent, Justice

Douglas stated that those amendments “delineate a

sphere of privacy, protected from government

intrusion,” which protects records provided to one’s

accountant.

Mildner v. Gulotta 405 F.Supp. 182 (EDNY

1975), affd. 425 US 901, 96 S.Ct. 1489 (1976) does

not apply because (1) the court dismissed the

plaintiff attorney's complaint on grounds of

abstention and (2) the case involved imposition of

discipline, not standards for reinstatement to

practice. The court stated that the Referee’s duty is

to file a report which sets forth his findings of fact

and conclusions of law along with the transcript of

the proceedings.

Matter of Walker 113 AD2d 254 (1st Dept.

1985) does not apply because the issue involved

disbarment and comingling of funds.

Javits v. Stevens 382 F.Supp. 131 (SDNY

1978) does not apply because the issue before the

court involved the Civil Rights Act, 42 USCS 1983

and FRCP 12(b)(6), neither of which are at issue

herein.

The petitioner agrees with the respondent

that the Appellate Division has exclusive power to

6

resolve issues of misconduct. Erdman v. Stevens 458

F2d 1205 (2d Cir. 1972), cert. denied 409 US 889, 93

S.Ct. 126 (1972). Requirements for reinstatement

ought to be uniform among departments as are

standards for admission. At the very least, all must

pass constitutional muster and be subject to review

on the grounds of other applicable statutes and case

law.

In Theard v. U.S. 354 US 278, 77 S.Ct. 1274

(1957), citing Matter of Rouss 221 NY 81, 116 NE

782 (1917), the attorney prevailed in the instant

court. The petitioner takes no issue with the Court

of Appeals order confirming disbarment of the

attorney for causing a witness to be out of town and

unavailable for trial.

The attorney also prevailed in Matter of Dondi

63 NY2d 331, 482 NYS2d 431 (1984). In dismissing

the grievance committee’s complaint against the

attorney because of improper disclosure, the Court of

Appeals held that a disclosure order must be “subject

to meaningful review” on appeal. Because the

Appellate Division’s order was not “legally

cognizable,” the Court of Appeals dismissed the

grievance committee’s complaint in its entirety.

In Matter of Capaccia 59 NY2d 549, 466

NYS2d 268 (1983), the attorney prevailed. The

Court of Appeals reversed the Appellate Division

order suspending the attorney because the Appellate

Division had denied the attorney the right to have a

public trial.

4

The petitioner agrees with the respondent

that the practice of law “is a privilege surrounded

with public interest but vested as well with a private

responsibility.” Matter of Wysell 10 AD2d 199 (15

Dept. 1960).

The petitioner cannot address the

respondent's claim regarding thirteen other states

because the respondent has again failed to provide

citations, failed to specify judicial departments, and

failed to specify whether disbarment or suspension

was at issue and, if the latter, after what period, and

whether tax returns are related to the grounds for

discipline. Even so, it appears that thirty-six states

do not require them.

The respondent’s statement that the First,

Third, and Fourth departments of New York State

require the submission of tax returns is a blatant

falsehood. Those departments’ rules for

reinstatement are reprinted as Appendices M, N,

and O of the petition. The rules speak for

themselves.

The instant case is unique because (1) the

entity forcing the disclosure is a government entity,

the judiciary, for its own use and not the use of a

litigant, (2) the income tax returns are not relevant

to the grounds on which the petitioner was

disciplined, (3) the petitioner did not put her tax

returns in issue, (4) the court never articulated a

reason to have the tax returns, (5) by the Second

Department’s own wording, the tax returns are to

prove filing, and proof could have been had by a less

restrictive means, (6) the respondent, which is a

8

committee of the Second Department, has

demonstrated an extraordinary interest in the

petitioner’s private life by yoing through her

personal mail at her home, sitting outside her home

and watching her, and following her around in a

vehicle.

If. An Attorney May Not Properly Be Denied

Reinstatement to the Practice of Law When

She Has Been Treated Differently Krom Other

Attorneys.

The doctrine of res judicata does not apply

because neither the Appellate Division nor the Court

of Appeals has ruled on these issues, or even

addressed them.

A statute of limitations time bars a party’s

remedy. The facts are still the facts. The petitioner

is presenting earlicr facts to show a course of

conduct culminating in the recent denial by the

Appellate Division, Second Department, — of

petitioner's application for reinstatement to the

practice of law, which was timely appealed to the

Court of Appeals and timely appealed to the instant

court, as well as to rebut the respondent's claim that

the petitioner wants to be treated differently from

other attorneys.

With one exception, the respondent has not

rebutted the facts in the petition when presented to

the Special Referee in papers or testimony, to the

Appellate Division, or to the Court of Appeals. The

one exception was to the Court of Appeals on the

issue of Mr. Strauss’ gaining of a position on the

9

bench. If truthful, his statement shows he never

spoke directly to Judge Fuller.

There is a_ recent case related to the

petitioner's argument regarding the Appellate

Division, Second Department, and the clerk of that

court.

In Kaufman v. Kaye and Prudenti LEXIS

25351 (EDNY 2005), affd. 466 F2d 83 (2d Cir. 2006),

cert. denied 127 S.Ct. 1828, 167 L.Ed.2d 320 (2007),

the plaintiff alleged that Chief Clerk Pelzer had

assigned two Appellate Division, Second

Department, justices to four of five of his cases and

one justice to three of five of his cases because they

were biased and would rule against him on appeal.

The case was dismissed on jurisdictional! grounds.

In dicta, the court stated that the Appellate Division,

Second Department is not required to assign cases

on a random basis, and to prove bias a litigant must

show the bias stemmed from “non-juridical data.”

The three justices were Justice Krausman, Justice

Adams, and Justice Crane. Justice Adams was on

the panel of PRN Tiffany Properties Inc. v, Maron, et

al. 34 AD3d 548, 823 NYS2d 676 (2d Dept. 2006), the

one appeal by P&N Tiffany Properties Inc. that was

not assigned to Justice Miller. Justice Adams and

Justice Crane were on the panel that issued the

opinion and order that suspended the petitioner from

the practice of law. (Petition Appendix E, at p. 7a.)

10

CONCLUSION

For the reasons set forth above and in the

petition, it is respectfully submitted that the petition

for a writ of certiorari ought to be granted.

Dated: White Plains, New York

January 19, 2009

Respectfully submitted,

Vivian L. Hausch

Pro Se Petitioner

305 Central Avenue

White Plains, NY 10606