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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0874%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2008

## Text

—— ante
A ) ( (a J
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0874%3A3. Public record. Not legal advice.