Federal Civil Rights Suit Against NY Judge And Lawyer Proceeds On Certiorari To US Supreme Court

An everyday citizen versus the legal establishment... it sounds more like the plot of a tv movie than real life, yet this is exactly what is at the heart of a petition now before the United States Supreme Court (docket # 11-7227 ).

In a request to have the nation's highest Court reverse the dismissal of his case by the lower court Michael A. Hense brings his search for the very rule of law that our President spoke of when he said "Transparency and the rule of law will be the touchstones of this presidency" to the doorstep of the nations highest court.

On October 16th, 2009, in an action at law, a complaint was filed in the Federal Court naming Attorney Janette A. Baxter, Justice Latia W. Martin, Nancy Dwinell, and Yoko Hense as defendants, alleging violation of Mr. Hense's 14th Amendment right not to be deprived of property without due process and conspiracy to violate those rights.

The complaint included a request for a jury trial.

On May 26th, 2011 the Second Circuit, on appeal, saw fit to go against its own prior ruling (McKithen v. Brown, 481 F.3d 89), and the rulings of other federal courts in similarly matters, by affirming the dismissal of the District Court relying on the application of Rooker-Feldman to support a finding of lack of jurisdiction to hear the case.

I appeal now to the highest court in the nation a prayer to correct what can only be seen as an aberration of the rule of law. In a matter that has potentially profound implications as to the rights of every citizen of the State of New York, and also those of the United States, not only to be secure in their Constitutionally protected right not to be deprived of property without due process, but to also be secure of their rights to have such grievances brought before a court of law and judged by a jury of their peers on its merits, and to not have those rights denied, ignored, or cast aside through a corruption of the legal system.

In the wake of the so called “Scarsdale Wives Syndrome” (2006), which led to the removal of state Supreme Court justices W. Denis Donovan, Bruce Tolbert and Richard Liebowitz from the matrimonial courts, and the reassignment of Justice William Giacomo to another court, Justice Latia W. Martin came to the matrimonial bench of the Westchester Supreme Court,on October 23rd, 2006, I found myself unexpectedly appearing before Justice Martin’s Court (originally scheduled before Justice Linda Jamieson) in defense of an action for divorce, and in less than 15 minutes into those proceedings I was being ordered to sign the so called “stipulation” which, amongst other things, ordered the immediate sale of the marital residence of which I was an owner and tenant by the entireties along with his former spouse.

Upon the revelation of the actions of attorney Baxter, where she did knowingly counsel her client to dissipate parts of the financial estate of the marriage and then proceed before the court demanding the immediate sale of the marital residence based on those false assertions, and in light of Justice Martin’s actions in which she willing conferred the cloak of authority and color of law to these actions, and also with respect to the actions of other persons, an action was commenced in the United States District Court Southern District of New York on October 19th, 2009 alleging conspiracy and violations of civil rights in a Complaint and prayer for relief.

Despite the verified affidavits of witnesses to the above mentioned occurrences… despite the submission to the record of the certified transcripts relevant to the complaint… despite the experience in case law of the federal court Justices in the Southern District and the 2nd Circuit… despite the assurance by the 3 justices at oral argument before the 2nd Circuit that they were fully aware of the record… and despite the fact that no prior State Court had ever ruled on the issues against the named defendants in the complaint, the case was dismissed for lack of jurisdiction based on the Rooker-Feldman doctrine.

According to New York State Domestic Relations law, equitable distribution is proper, and takes place only after the dissolution of the marriage, especially in matters of real property distribution. Prior to dissolution of a marriage and without an opportunity for the parties to be heard in a substantive hearing, New York courts have no jurisdiction to force the sale of a property owned as Tenants by the Entirety (see Adamo v. Adamo, 18 A.D.3d 407;974 N.Y.S.2d 413, Sedgh v. Sedgh, 142 Misc. 2d 931; N.Y.S.2d 255, Kahn v. Kahn, 43 N.Y.2d 203, 207, 371, N.E.2d 809, 811,401 N.Y.S. 2d 47, 49). Justice Martin chose to ignore the laws of New York, the rights of the parties as protected by the Constitution of the United States, and use her position on the bench to impose her own set of laws.

Also, this time ignoring the law governing appeals, Justice Martin, despite knowledge that an interlocutory appeal had been filed, proceeded to force the immediate sale prior to the decision on the appeal.

Through the use of threats and coercion Justice Martin’s Court succeeded in what can only be seen by the most objective of viewpoints as a twisted abuse of that process which forms the basis of our legal system of courts and laws.

The very fact, as is testified to by the certified transcripts of the proceedings of October 23rd, 2006, that the Justice Martin did dictate and impose the terms of the order, and then directed me to sign the order, is appear to irrefutable proof that this was indeed no stipulation, not by any stretch of the word, but was the product of Justice Martin.

Article 1 of the Constitution of the State of New York promulgates down to the state the intents of the 14th Amendment to the Constitution of the United States which prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness.

The 14th Amendment states “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 jurisdiction the equal protection of the laws”.

Article 1, section 6 of the NY State Constitution says (in part) “No person shall be deprived of life, liberty or property without due process of law”, and grants the grand juries the power “to inquire into the willful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries.

Inexplicably, the District Court has seen fit to ignore the affidavits, transcripts, and the evidence submitted in the complaint, to ignore the very “Rule of Law” they are entrusted with upholding, and also to go against the findings of other federal courts (including the Supreme Court) in similar matters, by dismissing the case based on the Rooker-Fedman doctrinal bar for lack of subject matter jurisdiction.

After allowing me a grand total of 5 minutes to argue the grounds for dismissal (denying motion for enlargement of time to argue and denying an applcation for re-argument and re-argument en banc), the Court of Appeals for the District affirmed the District Court dismissal.

Last year at a White House ceremony honoring Sonia Sotomayor, President Obama invoked Supreme Court Justice the Honorable William Brennan saying, “Justice William Brennan once said that in order for government to ensure those rights for all its citizens, government officials must be attentive to the concrete human realities at stake in the decisions they make,” Obama said. “They must understand, as Justice Brennan put it, ‘the pulse of life beneath the official version of events.’ The pulse of life beneath the official version of events.”

I pray that the President's words have not been lost on the current Justices of our nation's Supreme Court. I pray that todays Court still shares that same understanding that Justice Brennan was referring to when he talked about "the pulse of life beneath the official version of events." , and i also pray that todays Court remains "attentive to the concrete human realities at stake in the decisions they" are about to make.

When those with unquestioned standing in the legal community are allowed to subvert the system of justice by violating the rights of those with little or no standing, and when they act to stifle the constitutionally protected rights of those people to a trial by jury through the pretext of summary dismissal, then those "concrete realities" that our President referred to are all but lost.

On December 7, 1903, President Theodore Roosevelt in his Third Annual Message to Congress, said that: "No man is above the law and no man is below it;”.  It is as such that I, with full awareness of the slimness of his chances, appeal to the Supreme Court of The United States on Petition of Certiorari, with a prayer that the Court will correct those actions done by persons acting under color of law that can only be seen as a total disregard for the “Rule of Law” that our system of justice is based upon.

Today is Friday, January 13th, the date at which my Petition is distributed to the Justices for Conference. I am hoping that this Friday the thirteen is a good one for me… and for other pro-se litigants similarly situated.
In spite of the odds, I can only hope that this Friday the thirteenth is a good one for truth, justice, and the American way…

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If you’d like more information about this topic, or to schedule an interview with Mr. Hense, please contact Michael Hense at (917)714-5409 or email Mr. Hense at redocktober@hotmail.com