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Bar News - August 15, 2003 Federal Court Rejects Kamasinski's Appeal Dismissed 'With Prejudice' U.S. DISTRICT COURT Judge Steven McAuliffe has dismissed Theodore Kamasinski's appeal of a state court ruling ordering him to stop practicing law. In a 17-page order issued July 16, Judge McAuliffe declared that Kamasinski had filed an appeal that was "plainly without legal foundation." The judge found that Kamasinski's view of the state court's order barring him from practicing law was "flawed and appears to be based on a fundamental misunderstanding of the role (and constitutional authority) of the judicial branch." The order is published by the U.S. District Court on its Web site at www.nhd.uscourts.gov/oo/oo_index.asp, as well as this site, under News Releases. Only Kamasinski's lack of legal training allowed him to "barely escape sanctions for bringing frivolous claims," the judge concluded, and he added that such forbearance would not be extended to Kamasinski in the future. Invoking the Rooker-Feldman doctrine, McAuliffe found that Kamasinski should have brought his appeal of a Jan. 30, 2003 ruling by Superior Court Judge Edward Fitzgerald to the NH Supreme Court. In a subsequent order, Fitzgerald granted the Bar's petition for injunctive relief and enjoined Kamasinski from:
The injunction was the result of a cross-petition filed by the NH Bar Association and the NH Attorney General's Office seeking to stop Kamasinski from practicing law in violation of RSA 311.7. The litigation began when Kamasinski filed a petition for declaratory judgment, asking the Superior Court to declare that his activities did not constitute unauthorized practice of law. "I think it's a great decision," said Marty Van Oot, the NHBA's immediate past president, and the second Bar president to be named as a defendant (following 2001-2002 NHBA President Peter Hutchins) in the action brought by Kamasinski. "I am delighted that Judge McAuliffe recognized Kamasinski's attempted end-run around the Superior Court," Van Oot said. Van Oot praised attorneys Joseph F. McDowell, III, of Manchester, and Joshua L. Gordon, of Concord, for their dedicated work, pro bono, on this case. Kamasinski may face further difficulties: Judge Fitzgerald, concerned about whether Kamasinski was defying the injunction by continuing to provide others with legal representation, has asked the Merrimack County Attorney's Office to investigate. In response to the ruling, Kamasinski told the Union Leader that the case wasn't over. He accused McAuliffe of "intellectual dishonesty" for refusing to look at the legal issues he raised and "bypassing binding case law to reach the result he wanted." The judge "engaged in an orgy of name-calling to imply that I don't know what I'm doing," Kamasinski told the newspaper. (Editor's Note: Because the Bar was a party in the case, the staff of Bar News has been advised not to speak directly with Kamasinski.) The following are excerpts from the ruling by McAuliffe: Rooker-Feldman is Controlling "The Rooker-Feldman doctrine precludes a federal district court from reviewing a final judgment entered in a state court, and from considering claims that are inextricably intertwined with those raised in the state court proceeding. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)." Judge Fitzgerald's Action was 'Constitutional' "Kamasinski apparently believes that Judge Fitzgerald unconstitutionally encroached upon the province of the legislative branch when he gave meaning to those words [the definition of 'commonly practicing law'] and then applied them (as so construed) to the case pending before him, concluding that Kamasinski was violating state law by commonly practicing law without a license. Thus, Kamasinski asks this court to treat the superior court's order as if it were an (allegedly) unconstitutional statute." Kamasinski Had Adequate Opportunity to Raise Claims in State Court "As a fall-back position, Kamasinski says his current federal claims are not barred by the Rooker-Feldman doctrine because he did not have an adequate opportunity to raise them in the state court proceedings. Specifically, he says the 'state court record reveals that none of the parties proposed a definition of the "practice of law" or requested that state judge Fitzgerald define the "practice of law.'" That argument is frivolous as well. Kamasinski himself initiated the state court litigation in an effort to obtain a judicial declaration that he was not engaged in the 'unauthorized practice of law,' as that phrase is used in RSA ch. 311. In their cross-petition, the respondents moved the court to enjoin Kamasinski from engaging in the unauthorized practice of law. Consequently, whether Kamasinski was engaged in the 'unauthorized practice of law' was at the very core of those state court proceedings. And, to resolve that dispute, the court necessarily had to take the preliminary step of ascertaining what the Legislature meant to convey by the words 'practice of law.' 'Not the Proper Forum' "His petition for declaratory and injunctive relief is little more than a thinly disguised effort to obtain federal review and reversal of the injunction issued against him by the state superior court. To the extent Kamasinski entertains a good faith belief that the state court injunction operates to deprive him of federally protected rights, he could have (and should have) taken an available appeal to the New Hampshire Supreme Court. If he were dissatisfied with the outcome in that forum, he of course could have appealed his case to the United States Supreme Court by way of a petition for certiorari. He did not. And, it is plain that this is not the proper forum in which to pursue an appeal of a final judgment issued by an intermediate state court - even an appeal cast in terms of a civil rights action." "At this juncture, it is probably appropriate to note that Kamasinski is not the 'typical' pro se litigant - that is, one who appears only rarely in state or federal court to advance his or her own personal interests. Instead, he is a frequent litigant in his own right and actually holds himself out to the public as a person schooled in the law..." "So, notwithstanding his fairly substantial experience in the judicial system and his claim to have 'carefully considered' the impact of Rooker-Feldman on this action, Kamasinski still elected to bring a civil action that is plainly without legal foundation." No Longer Entitled to Deference as the 'Average Pro Se Litigant' "In short, he is in a far better position than the average pro se litigant in terms of recognizing meritless and frivolous claims. In the future, therefore, he will be held to a much higher standard than is accorded unsophisticated pro se litigants when it comes to ruling on motions for attorneys' fees and sanctions. Meritless litigation brought by this plaintiff that imposes upon the time and resources of named defendants will no longer be measured against the deferential standard applied to genuinely uninformed pro se plaintiffs." Motion for Attorneys' Fees Denied "On this occasion, however, defendants' motions for attorneys' fees are denied. To be sure, Kamasinski's efforts to deflect the application of Rooker-Feldman (e.g., by characterizing the state court's order as 'judicially created legislation') are simplistic and silly, but then, he probably considers those arguments to be novel and imaginative. Nevertheless, his points do at least facially recognize and address relevant legal issues. It's a stretch, but, however off-the-mark, his assertions arguably seek to raise the possibility of an extension of current law to reach his claims, albeit doubtfully in complete good faith." "So, on this occasion, the combination of Kamasinski's lack of legal education, training and skill enure to his benefit. That, coupled with his weak attempt to at least focus on dispositive issues, is enough to barely escape sanctions for bringing frivolous claims. That will not, however, be the case in future litigation, as he is now well aware that lower federal courts do not review state court judgments, and he will be presumed to be well-versed in the law of abstention, res judicata, collateral estoppel, immunity, and, of course, Rooker- Feldman."
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