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McNamara v. Kaye

August 13, 2008

MAUREEN MCNAMARA, PLAINTIFF,
v.
JUDITH KAYE, CHIEF JUDGE, NEW YORK COURT OF APPEALS; A. GAIL PRUDENTI, PRESIDING JUSTICE, APPELLATE DIVISION OF THE N.Y.S. SUPREME COURT, SECOND DEPARTMENT; GRIEVANCE COMMITTEE, 9TH JUDICIAL DISTRICT; GLORIA BUNZE; GARY L. CASELLA; "JOHN DOE"; "JANE ROE"; THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM & ORDER

In this lawsuit, plaintiff Maureen McNamara, an attorney, alleges a panoply of federal violations arising out of her suspension from, and subsequent reinstatement to, the practice of law in New York State. Plaintiff seeks damages as well as declaratory and injunctive relief. Plaintiff names as defendants a variety of individuals and entities connected with the New York State Court of Appeals ("Court of Appeals"), the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department ("Second Department"), and the Grievance Committee for the Ninth Judicial District ("Grievance Committee"). Defendants move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the court lacks jurisdiction to consider plaintiff's claims and, in the alternative, that plaintiff has failed to state any claims for which relief can be granted. For the reasons set forth below, defendants' motion is granted in its entirety and the complaint is dismissed.

I. Background

Unless otherwise noted, the following facts are taken from plaintiff's complaint. Plaintiff was admitted to the practice of law in New York State in 1979. In 1998, while working as a solo practitioner, plaintiff began to experience the first symptoms of multiple sclerosis, a disease of the central nervous system that disrupts communication between the brain and other parts of the body.*fn1 Plaintiff states that her present "physical limitations with [multiple sclerosis] include, among other things, very limited ability to walk, limited strength and dexterity of arms and hands, and sometimes extreme fatigue, drowsiness, sleepiness and exhaustion." (Compl. ¶ 28.)

The disciplinary problems underlying this litigation began in early 2001, when two complaints against plaintiff were filed with the Grievance Committee. Both complaints, one filed by another attorney and one filed by a client, alleged that plaintiff had neglected client matters and had failed to return phone calls or other communications regarding those matters. As detailed in the decision of the Second Department dated February 3, 2003, the underlying facts of which plaintiff does not contest, the Grievance Committee then launched an investigation with which plaintiff failed to cooperate. See In re McNamara, 303 A.D.2d 129 (2d Dep't 2003).

On October 10, 2001, the Grievance Committee filed a petition with the Second Department that, as amended, contained two charges of professional misconduct accusing plaintiff of engaging in conduct adversely reflecting on her fitness as a lawyer by failing to cooperate with an investigation of the Grievance Committee in violation of Disciplinary Rule 1-102(a)(7) of the New York Code of Professional Responsibility. Id. at 130, 134. After receiving an extension until October 29, 2001 to file her answering papers and a supplemental affirmation, plaintiff delivered the materials to the Grievance Committee on October 30, 2001. In an order dated December 31, 2001, the Second Department authorized the charges against plaintiff and appointed a Special Referee, who held a hearing on the charges in early 2002. Plaintiff submitted proposed findings to the Special Referee, as did Gloria Bunze, a lawyer for the Grievance Committee. The Special Referee adopted the proposed findings of Ms. Bunze and sustained the charges against plaintiff.

In an order dated February 3, 2003, the Second Department confirmed the report of the Special Referee and ordered that plaintiff be:

[S]uspended from the practice of law for a period of one year, commencing March 5, 2003, and continuing until the further order of this Court, with leave to the respondent to apply for reinstatement no sooner than six months prior to the expiration of the said period of one year upon furnishing satisfactory proof that during the said period she (a) refrained from practicing or attempting to practice law, (b) has fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), and (c) has otherwise properly conducted herself . . .

Id. at 135-35. Although the Second Department allowed plaintiff to submit written objections to the Special Referee's report, it did not allow her an opportunity for oral argument. The Second Department denied plaintiff's request for reconsideration of its order. In an order dated September 23, 2003, the Court of Appeals denied plaintiff leave to appeal the Second Department's order "upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution." In re McNamara, 100 N.Y.2d 613 (2003).

In April 2004, fourteen months after the issuance of the Second Department's order suspending her from the practice of law, plaintiff moved for reinstatement. Plaintiff states that side effects she was experiencing from chemotherapy treatment prevented her from applying for reinstatement during her first eight months of eligibility. In an order dated June 9, 2004, the Second Department held plaintiff's motion in abeyance and referred her petition for reinstatement to the Committee on Character and Fitness ("CCF") "to investigate and report on [plaintiff]'s current fitness to be an attorney, including, but not limited to, the unsatisfied judgments against her and whether she properly notified her clients of her suspension by certified mail, return receipt requested, as required by this court's rules." (Abramowitz Aff., Ex. D.) After an investigation and a personal interview, the CCF prepared a report recommending plaintiff's reinstatement, which it submitted to the Appellate Division on March 14, 2005.

By order dated April 27, 2005, the Second Department ordered that plaintiff's application be referred back to the CCF so that it could gather additional evidence regarding plaintiff's fitness to be an attorney. Specifically, the court directed the CCF to collect:

(1) detailed information and documentation regarding the status of judgments against [plaintiff], actions for recovery of monies due, and/or outstanding debts of [plaintiff]; (2) detailed information and documentation regarding the taxpayer actions in which [plaintiff] has been included as a plaintiff; and (3) detailed information and documentation regarding the malpractice lawsuit commenced by [plaintiff] against Adam Peska. (Id. at Ex. E.) After conducting an investigation and a hearing, the CCF again recommended plaintiff's reinstatement. Plaintiff states that she never received copies of any of the CCF's reports. In a decision dated January 19, 2006, the Second Department denied plaintiff's motion for reinstatement, finding that plaintiff "does not demonstrate the requisite fitness and character to practice law." (Id. at Ex. F.) The Second Department's decision gave no other explanation for the denial of plaintiff's motion.

Plaintiff moved the Second Department for reconsideration and reargument, but this request was denied in an order dated August 18, 2006. The Court of Appeals, sua sponte, dismissed plaintiff's appeal as of right on finality grounds in a decision dated November 21, 2006. In re McNamara, 7 N.Y.3d 899 (2006). Plaintiff then sought leave to file a discretionary appeal and asked the court to reconsider its earlier dismissal. In a decision dated February 20, 2007, the Court of Appeals granted plaintiff's motion for reconsideration, but denied plaintiff's motion for leave to appeal and dismissed her appeal, finding "that no substantial constitutional question [was] directly involved," In re McNamara, 8 N.Y.3d 867 (2007). According to plaintiff, she "also petitioned the Court of Appeals for redress in its ministerial/regulatory capacity, as the branch of state government superintending the licensing of attorneys at law in New York State," but the Court of Appeals took no action on this application. (Compl. ¶ 145.) On April 27, 2007, plaintiff again applied to the Second Department for reinstatement. On May 21, 2007, plaintiff filed a petition for a writ of certiorari with the Supreme Court of the United States, which was denied on October 1, 2007. McNamara v. Appellate Division, Supreme Court of New York, Second Judicial Department, 128 S.Ct. 360 (2007). By order dated June 8, 2007, the Second Department, without explanation, reinstated plaintiff to the practice of law.

Plaintiff filed an amended complaint in this action on June 21, 2007, raising eight causes of action that may be summarized as follows:

(1) The judicial officers and staff of the Court of Appeals and the Second Department violated 42 U.S.C. § 1983 by failing to provide plaintiff with due process in connection with her suspension and attempts at reinstatement;

(2) The New York State courts violated plaintiff's substantive due process rights by "irrational[ly], arbitrar[ily], and capricious[ly]" extending plaintiff's one-year suspension into a suspension that lasted for more than three years. Plaintiff also alleges in this cause of action, inter alia, that ...


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