No. _________ ================================================================

In The

Supreme Court of the United States

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IRWIN R. EISENSTEIN,

Petitioner, v.

COMMITTEE ON CHARACTER AND FITNESS FOR THE THIRD JUDICIAL

DISTRICT OF NEW YORK, et al.,

Respondents.

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On Petition For A Writ Of Certiorari To The New York Supreme Court, Appellate Division,

Third Judicial Department

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PETITION FOR A WRIT OF CERTIORARI

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IRWIN R. EISENSTEIN Pro Se 7925 Sloop Pl. #106 Orlando, FL 32825 Telephone: (718) 288-7832 Email: ironstone44@gmail.com

September 15, 2015

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i

QUESTIONS PRESENTED

In 2004 when he was 60, the Petitioner started law school. He graduated in 2008 and took the New York Bar exam in 2010. He had a formal interview in 2014.

This writ is based upon the rejection of the Petitioner’s application to the New York Bar by the Committee on Character and Fitness for the Third Judicial District of New York (hereinafter Commit-tee). The New York Appellate Courts concurred with the Committee’s recommendation.

The questions presented are:

1. Whether the New York Bar application process denies due process and violates the privileges and immunity clause when the Pe-titioner was denied the right1 to become a lawyer; the process took about four years, failed to use character references who knew the Petitioner for years, but instead evalu-ated his character based on lawsuits he filed prior to starting law school and a dispute with the IRS after law school.

1 See Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232 (1957), fn.5 says in part: “5. We need not enter into a discussion whether the practice of law is a ‘right’ or ‘privilege.’ ” See also Supreme Court of N.H. v. Piper, 470 U.S. 274, 277 (1985) (The court said . . . “[T]he opportunity to practice law is a ‘fundamen-tal’ right. . . .”).

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QUESTIONS PRESENTED – Continued

2. Whether New York’s denial of the Peti-tioner’s request for a law license violates the First Amendment when the Committee criti-cized the Petitioner’s right “to petition the Government for a redress of grievances” and New York’s confidentiality law restricts his right to use his own records.

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THE PARTIES AND RULE 29.6 STATEMENT

The Petitioner (hereinafter Pet’r) is a native of New York who relocated to Florida to go to law school.

The Respondents are the Committee, a state group who evaluates bar applicants for the Appellate Court and follows rules and law under the guidance of the New York Supreme Court, Appellate Division, Third Department.

The Respondents may be represented by the New York Attorney General who represents the state in this action. The constitutionality of several rules and laws that govern the application process is being questioned. See 28 U.S.C. § 2403(b).

Pursuant to Rule 29.6, Pet’r states that he has no parent corporation and no stock.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................. i

THE PARTIES AND RULE 29.6 STATEMENT ... iii

TABLE OF CONTENTS ......................................... iv

INDEX OF APPENDICES ..................................... vi

TABLE OF AUTHORITIES ................................... vii

INTRODUCTION ................................................... 1

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINIONS BELOW ............................................... 2

JURISDICTION ..................................................... 3

CONSTITUTIONAL AND STATUTORY PROVI-SIONS INVOLVED ............................................. 3

STATEMENT OF THE CASE ................................ 4

A. Procedural History .................................... 4

B. Statement of Facts .................................... 4

C. An Evaluation of the Committee’s Report Denying the Pet’r’s Bar Application .......... 5

D. A Review of “The Errors” in Pages A12-14 of the Committee’s Report – Reviewing the IRS Actions .......................................... 5

E. Committee Report – the Summary ........... 14

F. Committee Report – the Background Section ....................................................... 15

G. Law School, the Bar and Being Evaluat-ed ............................................................... 16

H. Pet’r’s May 8, 2014 Formal Hearing ......... 17

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TABLE OF CONTENTS – Continued

Page

SUMMARY OF THE ARGUMENTS ..................... 23

REASONS FOR GRANTING THE PETITION ..... 24

I. THE COMMITTEE’S EVALUATION DE-NIED DUE PROCESS ................................. 25

A. The Pet’r’s Evaluation Took Place 44 Months After the Pet’r Passed the Bar Exam ...................................................... 25

B. The Report Used Actions that Were Up to 22 Years Old without Reviewing Records ................................................... 26

C. The Report Did Not Use References From Those Who Knew the Pet’r for Years ....................................................... 27

D. Due Process Has Many Components Including An Evaluation Using the Mathews v. Eldridge Balancing Fac- tors ......................................................... 29

II. THE PET’R’S PRIVILEGES AND IMMU-NITIES WERE VIOLATED WHEN HE WAS NOT APPROVED FOR THE BAR ..... 31

III. HAVE THE COMMITTEE AND COURTS LIMITED THE FIRST AMENDMENT? ..... 33

A. The Report Attacked the Pet’r’s Right to Petition Government for Redress of Grievances ........................................... 33

B. New York has Prior and Post Hearing Speech Restraints ................................ 34

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TABLE OF CONTENTS – Continued

Page

IV. THE REPORT WAS SUBJECTIVE, ARBITRARY AND CAPRICIOUS ............. 37

V. STATEMENT OF RELIEF SOUGHT ........ 40

CONCLUSION ....................................................... 41

INDEX OF APPENDICES

There have been limited opinions by the New York Courts. The following documents are included in the appendix:

An order from Supreme Court, N.Y. App. Div., Third Dept., denying a petition for an order admitting him to practice notwithstanding the Committee’s adverse determination. Dated Dec. 24, 2014 ....................................................... A1-2

An order from Supreme Court, N.Y. App. Div., Third Dept., denying a motion to have the N.Y. Court of Appeals review the constitu-tionality of Judicial Law § 90(10) was denied, however, the Petitioner was allowed to use his records. Dated Nov. 13, 2014 ....................... A3-4

Decision of Committee on Character and Fitness for the Third Judicial District rec-ommends the Petitioner’s Application be de-nied. Dated Sept. 8, 2014 .................................. A5-15

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TABLE OF CONTENTS – Continued

Page

An order from N.Y. Court of Appeals denying Petitioner’s motion for leave to appeal the determination dated Dec. 24, 2014, and also denying a review of the constitutionality of Judicial Law § 90(10) dated Nov. 13, 2014, as untimely. Dated May 14, 2015 ............................. A16

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TABLE OF AUTHORITIES

Page

CASES

Anderson v. Edwards, 514 U.S. 143 (1995) ............... 19

Arizona State Legislature v. Arizona Independ-ent Redistricting Commission, et al., No. 13-1314 (June 29, 2015) ............................................... 25

Barry v. Barchi, 443 U.S. 55 (1979) ........................... 25

Bigelow v. Virginia, 421 U.S. 809 (1975) ................... 36

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) .................................................. 11, 12

BMW v. Gore, 517 U.S. 559 (1996) ............................... 9

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................ 9

Brady v. Maryland, 373 U.S. 83 (1963) ..................... 30

Brogan v. United States, 522 U.S. 398 (1998) ............. 8

Butterworth v. Smith, 494 U.S. 624 (1990) .......... 35, 36

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........... 32

Connick v. Thompson, 131 S. Ct. 1350 (2011) ........... 30

District of Columbia Court of Appeals v. Feld-man, 460 U.S. 462 (1986) ....................................... 23

Forrester v. White, 484 U.S. 219 (1988) ..................... 21

Gentile v. Nevada, 501 U.S. 1030 (1991) ................... 36

Giglio v. U.S., 405 U.S. 150 (1972) ............................ 30

Honig v. Doe, 484 U.S. 305 (1988) ................................ 2

In re McDonald, 489 U.S. 180 (1989) ......................... 32

In re Sindram, 498 U.S. 177 (1991) ........................... 32

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TABLE OF AUTHORITIES – Continued

Page

Johnson v. Avery, 393 U.S. 483 (1969) ....................... 34

Konigsberg v. State Bar of California, 353 U.S. 252 (1957) .................................................... 27, 28, 30

Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) ................................................................ 36

Lane v. Franks, No. 13-483 (2014) ............................. 36

Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 29, 30, 40

Matter of Rose v. Moody, 83 N.Y.2d 65 (1993) ........... 19

NAACP v. Button, 371 U.S. 415 (1963) ...................... 34

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ....................................................................... 24

Oregon v. ICE, 555 U.S. 160 (2009) ........................... 24

R.M. v. Supreme Court of N.J., District XIII Ethics Committee, et al., 883 A.2d 369 (2005) ........................................................... 24, 36, 37

Rooker v. Fid. Trust Co., 263 U.S. 413 (1923) ............ 23

Roth v. U.S., 354 U.S. 476 (1957) ............................... 36

Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232 (1957) ............. i, 18, 31

Shelton v. Tucker, 364 U.S. 479 (1960) ...................... 36

Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) .................................................... i, 31

Turner v. Rogers, 564 U.S. ___ (2011) .................. 19, 34

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TABLE OF AUTHORITIES – Continued

Page

STATUTES

5 U.S.C. § 702 ............................................................. 11

26 U.S.C. § 6702 ........................................................... 8

28 U.S.C. § 1257(a) ....................................................... 3

28 U.S.C. § 1331 ......................................................... 11

28 U.S.C. § 1346(a)(1) ................................................. 11

N.Y. Jud. Law § 90(10) ....................................... passim

CONSTITUTIONAL PROVISIONS

Fifth Amendment ....................................................... 11

First Amendment ................................................ passim

Fourteenth Amendment ............................... 1, 3, 11, 37

Privileges and Immunities Clause, Art. IV, § 2 .................................................................. 3, 23, 32

TREATISES

Linguist Deborah Tannen’s homepage at http:// faculty.georgetown.edu/tannend/ ............................ 21

RULES

RPC 3.1 – Meritorious Claims and Contentions [includes a good faith argument for an exten-sion, modification or reversal of existing law.] ...... 18

RPC 3.3 – Candor Toward the Tribunal .................... 26

RPC 8.4 – Misconduct ................................................ 26

1

INTRODUCTION

The Petitioner is 71 years old (hereinafter Eisen-stein, Petitioner, and Applicant are referred to as Pet’r). He started law school at 60. At 66, he passed the July 2010 New York Bar Exam. However, he did not have a formal hearing with the New York Com-mittee on Character and Fitness for the Third Judi-cial District (hereinafter Committee) until May 8, 2014. On Sept. 8, 2014, the Committee rejected his application. The New York Appellate Court and the Court of Appeals concurred with the Committee.

This Petition is based on violations of the Due Process Clause of the Fourteenth Amendment. The bar application process took an excessive amount of time. The report rejecting the Pet’r’s application con-tained factual errors. Based upon the denial of a license, the Committee violated the Pet’r’s Privileges and Immunities.

There are two First Amendment issues. First, the Committee questioned the number of actions the Pet’r filed and was critical of his past filing history. Next, there is a conflict between this Court’s decisions and New York Judicial Law § 90(10) that regulates hear-ing confidentiality.

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PETITION FOR A WRIT OF CERTIORARI

Pet’r Irwin Eisenstein respectfully asks this Court to grant a writ of certiorari to review the

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judgment of the New York Court of Appeals denying his bar application.

In Honig v. Doe, 484 U.S. 305, 318 (1988), the Court said a claim is not moot if the conduct origi-nally complained of is “capable of repetition, yet evading review.” This writ raises issues that meet these criteria.

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OPINIONS BELOW

In July 2010, Pet’r passed the N.Y. bar exam. In September 2014, the Admissions Committee deter-mined that the Pet’r did not meet the character and fitness requirements for N.Y.

The Committee issued a decision that rejected the Pet’r (Appendix 5-15, hereinafter A5-15). This decision was appealed to the New York Supreme Court, Appellate Division, Third Department. The court affirmed the opinion. A1-2. The Pet’r appealed the December 24, 2014 Appellate decision to the Court of Appeals, New York’s highest court. On May 14, 2015, this court rejected Pet’r’s motion to submit a writ asking for reconsideration (A16). On July 2, 2015, Justice Ginsberg granted an extension until September 15, 2015 to file a writ.

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JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

First Amendment

Congress shall make no law . . . abridging the freedom of speech, or of the press, . . . . and to petition the Government for a redress of grievances.

Fourteenth Amendment

. . . No state shall make or enforce any law which shall abridge the privileges or immun-ities of citizens of the United States; nor shall any state deprive any person of life, lib-erty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Privileges and Immunities Clause, Art. IV, § 2 – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. (Although the Fourteenth Amendment has this clause, it has remained almost dormant.)

New York’s confidentiality law is being ques-tioned. (See New York Judicial Law § 90(10)).

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4

STATEMENT OF THE CASE

A. Procedural History

The procedural history mimics the “OPINIONS BELOW,” supra. In denying the Pet’r’s application, there were procedural issues, misstatements, errors, and omissions of facts. The Pet’r’s application to the New York Bar was denied, and he exhausted his appellate remedies.

B. Statement of Facts

In August of 2004, the Pet’r started Barry Law School in Florida. In July of 2010, the Pet’r took and passed the N.Y. Bar exam. He submitted his bar application after he passed the exam. New York decided to wait until Florida finished their bar eligi-bility determination. On May 16, 2013, New York interviewed the Pet’r and rejected him. He then requested a copy of their report and a formal hearing. He had his formal interview on May 8, 2014 and was rejected in an opinion (A5-15) on September 8, 2014. The Pet’r found factual errors, omissions and mis-statements in the opinion. He asserts that the rea-sons for denying him admission were arbitrary and capricious. The Committee informed him that any appeal was to the Appellate court. The Committee’s procedures fail to allow reconsideration to correct their errors. Pet’r wrote a brief identifying many of the Committee’s errors. But the two appellate courts that reviewed his appeals concurred with the Com-mittee’s report.

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C. An Evaluation of the Committee’s Report Denying the Pet’r’s Bar Application

The first part of this report-review analyzes the IRS comments. See A12-14. The IRS settled and returned a $5,000 penalty with interest and the cost of filing a federal action to the Pet’r. The Committee was critical of the IRS complaint even though it had merit. They rejected the Pet’r, and his only remedy was to appeal their report. The Pet’r included a brief noting many of the report’s errors in his appeal to the N.Y. Appellate courts.2

D. A Review of “The Errors” in Pages A12-14

of the Committee’s Report – Reviewing the IRS Actions.

The Committee did not request a copy of the IRS action before the formal hearing. It was sent to them after the interview. Their determination was based, in part, upon errors in their review. The Pet’r never had an opportunity to explain or clarify their mis-takes. In reviewing the Committee’s report, the Pet’r encloses his rebuttal in parentheses with bold print-ing at the start and end of his response to distinguish it from the report. ex. (Error . . . end (is bold)).

2 The Appellate brief requesting relief is 50 pages and is at: https://www.academia.edu/11963903/A_Work_In_Progress_-_Agency_ Law_Some_reasonable_case_law_-_how_can_we_take_back_the_ constitution

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Starting on A12, ¶ 1 the report said:

“In addition, Applicant’s approach to filing his federal income taxes evidences an inexplicable dis-regard for applicable rules.”

(The Pet’r filed his taxes late but sent a check to the IRS before his taxes were due to ensure there was an overpayment.)

“He has a history of filing his federal taxes late (with late filings in tax years 2006, 2007, 2008, 2009, and 2010).”

(During these years Pet’r was in law school and studying for bar exams. Pet’r overpaid in each year except 2008 when his divorce was settled.)

“At the hearing, Applicant unapologetically admitted, ‘I do file my taxes late.’ Applicant’s process for filing his annual income tax returns during those years, as he explained at the hearing, was unorthodox at best. First, Applicant would contact the Internal Revenue Service (IRS) and request that it provide him with his 1099s and other necessary income tax statements.”

(Error. First, before his taxes were due, the Pet’r sent a check that was several thousand dollars greater than his expected taxes. The Pet’r is on a fixed income so he calculated his approximate tax.) (In June, the Pet’r con-tacted the IRS and requested his income tax statements.)

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“Once received, Applicant’s practice was to file his income tax forms with the IRS without calculat-ing the exact amount of taxes actually owed.”

(Error. He did calculate taxes owed but may not know the size of his return because he sometimes did not keep track of the checks that he sent to the IRS before his taxes were due.)

“He would include a check with the filing in an amount that he believed was likely to constitute an overpayment for that tax year. Because he did not actually calculate the exact amount of taxes owed or due to be refunded and enter that information on the applicable tax form at the time of filing. . . . ”

(The Pet’r does not always remember the checks that he sent to the IRS. He has sent duplicate checks in the past. In that situ-ation, the amount of the refund was much larger. He rolls his refund into the following year giving the IRS a free loan.)

“Applicant would cross out and not sign the required ‘jurat,’ which states ‘Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.’ ”

(Error. In 2009 only, the Pet’r crossed out part of the “jurat.” Because the form was not complete, he crossed out “Under penalties of perjury,” and wrote: “I have overpaid please roll any excess to next year’s balance.” There

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was no intent to underpay, or commit fraud. He signed the modified statement. In fact he overpaid. He did this based upon this Court’s finding in Brogan. See Brogan v. United States, 522 U.S. 398 (1998) (The Court ruled that false statements to government officials may be prosecuted (see the exculpatory no)).

“After filing, Applicant would rely on the IRS to calculate the exact amount of taxes actually owed and to process a refund reflecting the balance between the amount actually owed and the ‘overpayment’ previ-ously submitted.”

At A13, ¶ 1 the report said:

“By letters from the IRS dated July 14, 2011 and October 24, 2011, Pet’r was notified that it was assessing a fine of $5,000 against him for filing a ‘frivolous tax return’ for the tax year 2009 pursuant to 26 U.S.C. § 6702 (see Applicant’s Letter to the Admissions Office, May 20, 2014; Complaint at page 2).”

(Error. The IRS letter was dated July 14, was postmarked July 19 and was received on July 28. The first letter was a warning say-ing that the Pet’r should correct his return and threatened a $5,000 fine. The IRS letter did not explain why his return was frivolous. Pet’r called the IRS several times using the phone number in the letter and spoke to IRS agents for about two hours. Finally, a super-visor identified the problem as crossing out part of the jurat. The Pet’r responded with a seven page letter with the corrected jurat signed under penalty of perjury. This was

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faxed timely to the IRS on August 5, signifi-cantly before any deadline.

On October 24, 80 days later, the Pet’r received another IRS letter assessing a $5,000 fine; a statement said if it was not paid immediately interest would accrue and no IRS appeal would be allowed. The IRS fine was excessive because the Pet’r did not owe any money and had a balance greater than $5,000. See BMW v. Gore, 517 U.S. 559 (1996) (This Court limited punitive damages that were grossly excessive saying they vio-lated due process. Can reverse incorporation be used to question actions of the IRS? See Bolling v. Sharpe, 347 U.S. 497 (1954)). The IRS fined the Pet’r $5,000 even though he overpaid his taxes.)

(A13, ¶ 1) “Applicant promptly paid the fine assessed against him, but contested the allegations against him through various means of correspondence with the IRS and by filing a complaint with the Department of the Treasury.”

(Error. The IRS assessed an interest penalty even though they received the Pet’r’s check timely. (This was an IRS computer error.) With the penalty check, the Pet’r again sent the IRS his initial letter and the fax receipt. He responded timely and asked for an abate-ment. The IRS never responded to Pet’r’s abatement request but cashed the $5,000 check. He filed a complaint with the Treasury Department in September of 2013, almost two years later. See Comp. P16, ¶¶ 79-81. He

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filed the complaint because the IRS failed to act in about two years and the statute of lim-itations was approaching.

The IRS notices were inadequate; their computer systems are not integrated; they did not capture and retain records; their pro-cedures are somewhat arbitrary; and the Pet’r was selected without justification. He overpaid his taxes.)

Continuing on A13, ¶ 1 of the report, the Com-mittee said:

“Thereafter, the Applicant was informed by the IRS that there was no longer a penalty assessed against him in relation to the alleged frivolous tax return and that it would be returning the $5,000 to his account, but that a separate penalty would be assessed against him for filing a late return.”

(Error. The Committee erred when reading the information that they received. See the IRS Complaint P.13-14, ¶¶61-69 that contra-dicts the Committee report. The IRS sent a letter informing the Pet’r that there was no penalty assessed against him for a frivolous return. To ensure this letter was correct, The Pet’r called the IRS and informed their Agent that they may have made an error. He sug-gested that the IRS verify the letter’s infor-mation. The Pet’r did not receive other letter from the IRS. However, he called the IRS to determine the status of his account. During the call, he was informed that the IRS had assessed a late filing fee with interest but

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never notified him of this penalty. (They took this penalty from the excessive money in his IRS account.) They never removed the $5,000 frivolous penalty.)

A13, ¶ 2, said: “On October 15, 2013, Applicant commenced a civil action, pro se, in the United States District Court for the Middle District of Florida, Orlando Division, against ‘The United States of Ameri-ca,’ the ‘[IRS] Commissioner’ in his official and per-sonal capacities, and ‘Unknown and Named Officials of the IRS,’ individually and in their official capacities (Applicant’s Letter to the Admissions Office, May 20, 2014, Complaint at pages 1-2). Therein, Applicant alleges violations of his First, Fifth and Fourteenth Amendment rights (including Bivens claims) and the Administrative Procedure Act, and seeks, among other things, compensatory and punitive damages (Applicant’s Letter to the Admissions Office, May 20, 2014, Complaint at pages 17, 20, 26, and 29).”

(Error. Many statements in the IRS com-plaint are not included in the Report. Other causes of action included: 5 U.S.C. § 702, 28 U.S.C. § 1331, 28 U.S.C. § 1346(a)(1), etc.)3

(The Justice Department submitted a mo-tion to dismiss. The Pet’r submitted a motion

3 A copy of the IRS complaint is available at: https://www. academia.edu/13724702/IRS0100_federal_complaint_-_with_some_ errors_but_ (Last visited 08/04/15 or do a google search for IRS0100 federal complaint – with some errors but – at academ-ia.edu and the author is Irwin Ironstone).

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in opposition and to strike based upon many factual errors in Justice’s motion. In his motion, he included IRS documents that the magistrate used in her proposed order to dismiss without prejudice. There were suffi-cient facts and reasons to maintain the action. Justice was not given information by the IRS and that resulted in false statements to the court.)

A14, ¶ 1, said: “On May 12, 2014, United States Magistrate Judge Karla Spaulding issued a Report and Recommendation that the Court grant the United States’ motion to dismiss (based upon lack of subject matter jurisdiction and, with regard to the Bivens claims, for failure to state claims upon which relief can be granted), dismiss Applicant’s claims without prejudice, direct the Clerk of the Court to terminate Applicant’s motion to strike, and allow Applicant the opportunity to file an amended complaint pursuant to the guidelines provided in the Magistrate’s Report and Recommendation (Applicant’s Letter to the Admissions Office, May 20, 2014, Report and Recom-mendation at page 31).”4

(Error. The Pet’r could have just said the case was dismissed without prejudice. Instead, he sent the Committee the magistrate’s 31 page decision. For almost two years, the Pet’r tried to resolve the IRS action without

4 The Magistrate’s recommendation is available at: https:// www.academia.edu/13610726/IRS0160_The_Federal_Magistrates_ recommendation_and_order_to_dismiss_without_prejudice

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litigation. The IRS appeared not to want to settle the action. The Pet’r could not get a lawyer to take on a $5,000 case in federal court so he used another action filed against the IRS as a guide. He is a neophyte in this area of law, but the magistrate, after looking at the exhibits in his motion to strike, out-lined exactly what she believed was required to sue the IRS.)

A14, ¶ 1, (middle) said: “It is not known whether the Court accepted the Recommendation of the Mag-istrate. By letter from the Department of Justice dated June 16, 2014, Applicant was informed that it accepted his settlement offer and pursuant thereto, that the IRS ‘is being authorized to schedule an over-payment of the $5,000 frivolous return penalty for 2009, plus interest according to law . . . [and] will refund [his] filing fee of $400’ in exchange for ‘a stipulation for dismissal with prejudice.’ Applicant signed the settlement and stipulation for dismissal with prejudice that same day, and provided a copy of the signed document to the Admissions Office .for consideration.”

(Error. The district court granted a stay al-lowing the parties to settle. The Judge never ruled on the proposed order. The Pet’r be-lieves that he would have prevailed but fighting this type of action requires a lot of time. He talked to the Justice’s lawyer who agreed to a settlement in his favor. This was not a frivolous action but one that most law-yers would not accept. There were at least

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two constitutional issues raised and other reasonable claims against the IRS.)5

E. Committee Report – the Summary

The IRS evaluation was reviewed first because there were many mistakes, errors, and omissions. One may question the due diligence used in the Com-mittee’s evaluation.

The Summary (A6-7) was 3/4 of a page. A6, last ¶ – A7 said that “the Applicant’s demeanor was appro-priate throughout the hearing.” Then at A7, ¶2, the report says “based upon . . . the whole record, it is the unanimous opinion . . . that Mr. Eisenstein lacks the requisite character and fitness for admission to the New York State Bar.”

(The Committee said they used the whole record, but it appears that they did not understand parts of the record. They relied upon Florida’s flawed order without reviewing submissions that refuted many of Florida’s charges. Using records from ten to twenty years ago, without having the factual back-ground, or asking for it, the Committee made assumptions and errors in their report.)

5 Each year the taxpayer advocate service (TAS) issues a large report outlining problems and solutions for the IRS. See http:// www.taxpayeradvocate.irs.gov/2014-Annual-Report/full-2014-annual- report-to-congress/ (Last visited 08/11/15).

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At A7, ¶1 “[T]his Subcommittee requested a copy of Applicant’s complaint in a recent lawsuit he com-menced against the [U.S.] Internal Revenue Service along with a brief statement as to the status of that action. . . .”

(The Pet’r sent his complaint, the magis-trate’s 31 page proposed order to dismiss the complaint without prejudice and a settle-ment with the IRS that favored the Pet’r. See the IRS action supra.)6

F. Committee Report – the Background Sec-

tion

The next section is the “Background” (A7-8). It is 3/4 of a page and it covers at least 30 years. This section has very little information about the Pet’r. The report did not include many details. The Pet’r had a degree in economics (1966), an MBA in com-puter science (1972), and a J.D. (2008). He lived in and worked for New York City for about 30 years. He managed large groups of technical staff and was involved in evaluating, designing and implementing many large critical computer systems. Some systems distributed billions of dollars in benefits, others established safety-nets for at risk children and adults.

6 See the Pet’r’s IRS complaint at: https://www.academia. edu/13724702/IRS0100_federal_complaint_-_with_some_errors_but_ (Last visited 07/26/15).

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While he was employed, he acted responsibly and followed rules. The systems that were developed were complex and were rule-based computer systems. The Pet’r’s history describes a person that does not fit the characteristics of the person in the Committee’s report.

The Pet’r volunteered at several organizations. He represented indigent people in administrative hearings. He volunteered at Community Access Tele-vision where he assisted others and produced local TV shows. Some videos are available on YouTube.7 He was a volunteer mediator. The Pet’r taught people how to find and use law related databases on the internet. Many of the letters of recommendation were from people he knew for years and helped (including lawyers).

G. Law School, the Bar and Being Evaluated

Before law school, Pet’r was found to have cogni-tive problems and was given an ADA accommodation. He retired early and started law school. He finished law school and then passed at least two bar exams.

On A8, ¶1, the N.Y. report says the Florida Board “conducted an extensive hearing” about the

7 The Pet’r’s YouTube name is “Irwin Ironstone.” One video is a speech by Justice Ginsberg.

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Applicant’s “qualifications for admissions” and dis-qualified him from applying for two years.8

(Unfortunately, the Committee did not do an independent review of the Pet’r’s applica-tion. The Pet’r presented errors in law and errors in fact in opposing Florida’s “lengthy” report. There were many omissions and mis-statements that existed in Florida’s report that N.Y. copied blindly.)

The Background section (A7-8) notes: “On May 16, 2013, a three member [N.Y.] subcommittee con-ducted an interview of Applicant.”

(They disapproved his admission. The inter-view was not recorded and their report was not sent.9 The N.Y. bar final review did not take place until almost four years after the Pet’ r passed the bar exam. N.Y. delayed a formal hearing until Florida finished their review.)

H. Pet’r’s May 8, 2014 Formal Hearing

This section, at A9, ¶ 1 of the report, says: “Dur-ing this hearing, . . . the Applicant appeared sincere

8 After he brought a First Amendment action against Florida, the Florida Supreme Court retaliated making it five years. 9 The Pet’r received a letter questioning his character and then called to have the May 16, 2013 Committee report sent to him. He reviewed the report and requested a formal hearing.

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and was willing to openly discuss . . . his past difficul-ties. . . . including his mental health issues. . . . ”

Then, the Committee report said:

“[I]t became increasingly troubled by Appli-cant’s judgment, view of the legal system, and apparent tendency to use the courts as a tool for personal vindication and retribution rather than the redress of legitimate griev-ances founded upon established legal princi-ples, honesty, and good faith. . . .”

(The questions about mental health and past difficulties were inappropriate. The Committee’s view of the Pet’r conflicts with the view of people who knew him for years. He graduated in the middle of his class and was the oldest in his class. Pet’r’s references have never question his integrity, honesty, and good faith. As a non-attorney, after research, Pet’r believed that his actions were based upon “legitimate grievances,” and “estab-lished legal principles.”) In Schware at 244, the Court said: “Mere unorthodoxy (in the field of political[, legal]) and social ideas does not as a matter of fair and logical inference, [negate] ‘good moral character.’ ”)

(He tried to apply established principles in economics, computer science and law to extend current law. (See RPC 3.1 Meritorious Claims and Contentions). The majority of Pet’r’s actions were not brought for per- sonal vindication and retribution but for the

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redress of legitimate grievances. He sacri-ficed his own needs for those of others.)10

On A9, ¶ 2, the report says: “Applicant repre-sented himself in the divorce proceeding that began in 1990.”

(Error. The Pet’r represented himself in 1992, not 1990. He ran out of money. The lawyers said that he should use custodial funds to pay them, and he refused. He hired an attorney while at law school.)

The report A9, ¶3-A10 was concerned with the number (more than 21) and types of actions that the Pet’r brought prior to law school.

(The report’s count included appeals as sep-arate actions.11 The result is that the report’s

10 Rather than accept a $100 per week reduction in child support, he raised issues in the child support guidelines because they failed to use economy of scale to automatically reduce child support upon changed circumstances. See Justice Thomas’ deci-sion in Anderson v. Edwards, 514 U.S. 143 (1995). He used a N.Y. case Matter of Rose v. Moody, 83 N.Y.2d 65 (1993), in the N.J. Supreme Court (1997) to allow rebuttable presumptions in child support for low income parents. It was dismissed. However, much later, N.J. addressed this with an ability to pay hearing. See Turner v. Rogers, 564 U.S. ___ (2011) (A state must provide safeguards to reduce risks of erroneous deprivation of liberty in civil contempt cases.). 11 He filed and appealed six decisions, in all, in federal court questioning factors in the N.J. support guidelines. He did this after the N.J. courts rejected his actions. When the district court in N.Y. rejected his action based upon personal jurisdiction, he appealed to the Second Circuit and to this Court questioning

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totals are erroneously high and counted appeals and actions brought by others as part of the total actions that the Pet’r initiated.

He only brought three actions in the last 12+ years and those were in response to gov-ernment actions.12 The majority of Pet’r’s actions were filed before law school, as a non-attorney, and were at least 12 years old. The standard used in evaluating his conduct was arbitrary and capricious. This Committee failed to review causes of actions and the legal basis for bringing actions. Instead, their report relied on evaluations made by others.)

The Committee was concerned because the Pet’r sued either four or five judges (A9 bottom-A10). Pet’r

jurisdiction under the Commerce Clause and the child support guidelines. In all, there were eight actions dealing with child support that were not to vindicate Pet’r’s rights but to assist others. All states use economy of scale to calculate child support and other social benefits. At the time of Pet’r’s actions, very few states automatically reduced child support based upon changed circumstances. Pet’r used Supreme Court cases to justify his actions. There were several other actions that were counted twice based upon appeals. Rather than 21 cases, the Pet’r was involved in fewer than those listed that he initiated. The Committee never reviewed these cases during their short interview. Most attorneys would go broke if they started fewer than 21 cases in 25 years or three cases in the last 12 years. 12 The Pet’r has appealed the actions denying him law licenses and an action against the IRS where he successfully settled the action.

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believed he sued them in other than their judicial capacities.13

The report was concerned with sanctions in state and federal courts and a contempt charge from 1994. It questioned why the Pet’r was not “contrite” related to several old actions. (See A10, ln.11-16).

(Pet’r was not contrite because it would require him to lie. Parts of these actions are reviewed in abbreviated footnotes.14 The

13 Pet’r understands that judges have “almost absolute im-munity.” There are exceptions. See Forrester v. White, 484 U.S. 219 (1988), where this Court limited judicial immunity in at least administrative, legislative, or executive capacities. The child support collection systems procedures are administrative. The maintenance of court records is either executive or adminis-trative. 14 In 1994, Pet’r was charged with contempt by Judge Zampino (Family Court). He was charged with throwing “papers” off the counsel table at the court, raising his voice, waking a sleeping baby, and fraud before the court. (At the time, Pet’r did not know the definition of fraud before the court.) The Judge withdrew the contempt. The record and 20 year old transcript show there was one piece of paper; it was an IRA account omitted from the divorce by his ex-wife’s attorney (who was instructed to draft the divorce by the judge). The paper fell when it was handed to the bailiff. The Judge interrupted the Pet’r whenever he tried to talk. Linguistically, people may raise their voices when this happens. (See Linguist Deborah Tannen’s homepage at http://faculty. georgetown.edu/tannend/ (Last visited 8/15/15). The bail was set at $2,500 cash ($25,000) for pointing out attorney fraud. The Judge prevented Pet’r from having mean-ingful access to his children for more than three years. The judge selected a psychiatrist who was not competent to evaluate

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sanction by the federal judge was very ques-tionable.15 It would exceed space allowed to explain and justify each lawsuit. (See A9, last ¶ – A10, ln.4).16 Although some of Pet’r’s

Pet’r’s child. The “expert” did not know about “PAS”; and inter-viewed Pet’r’s daughter with her mother present rather than alone. Even when the judge’s expert suggested more access, the judge refused to accept his expert’s opinion. 15 In 2002, Federal Judge Dennis Cavanaugh communicated ex-parte with one of the parties in an action (a state judge). Cavanaugh was technologically challenged and did not under-stand why courts should use electronic imaging of documents. The judge failed to review documents submitted on a CD where other judges were justifying electronic record keeping, including the U.S. Judicial Council. This action was brought because N.J. courts lost papers that were critical in showing fraud upon the court and misconduct by an attorney. Judge Cavanaugh covered this up and sanctioned the Pet’r saying the basis of the action was not understandable. Today, many courts use imaging tech-nology. 16 Most of the lawsuits are 12-22 years old. They should not be used to evaluate someone who has gone to law school. The Pet’r sued his ex’s lawyer for trying to separate him from his children; she mischaracterized custodial accounts as available for equitable distribution; she knowingly served a subpoena on Pet’r’s therapist in another state; she committing fraud by omitting retirement funds; she characterized custodial funds as available to pay legal fees; and she sent different papers to the court and to the Pet’r (online imaging technology improves reliability), etc. Pet’r sued his son’s “Shrink” for not using a professional standard of care. She questioned Pet’r’s mental health “remotely” without meeting with the Pet’r or speaking with his therapist. This “Shrink’s” report was filled with misstatements. Later, the Pet’r discovered it was submitted to court after Pet’r’s son turned 18, and the judge already decided that his son should make his own access decisions. The “Shrink’s” report was submitted to

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actions were based upon issues from the divorce, he argued for changes in law based upon state procedural deficiencies (judges used the domestic relations exception when the Pet’r was not arguing domestic relations issues). The Pet’r believed some actions were dismissed by judges using incorrect theories of law. This Court has modified the Rooker-Feldman Doctrine after many years, saying it was not being used properly.)

(New York appears to have barred the Pet’r for life. This is based on actions that occurred between 12 and 22 years ago. They may have used age as a factor or Pet’r’s ADA status. He is not a traditional law school graduate; his ideas about the legal system have been tempered by experiences.)

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SUMMARY OF THE ARGUMENTS

Time and space is limited. First, the writ will address due process issues. Then, the denial of the right to practice law under the Privileges and Im-munities Clause will be addressed.

Next, the writ addresses areas where the Com-mittee’s report and New York’s law conflict with fun-damental rights. The report critically attacks a right

prevent Pet’r from seeing his young daughter. Prior to bringing any action, Pet’r wrote to his son’s “Shrink” to withdraw her report.

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to petition the courts and predicts future conduct based upon past conduct prior to law school. Finally, N.Y. Jud. Law § 90(10) selectively places prior restraints on speech that is content based, and is critical of the functioning of government entities.

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REASONS FOR GRANTING THE PETITION

The reason for granting this writ, or parts of it, is to restore credibility in the legal system. New York’s evaluation used arbitrary and capricious standards and did, and does so, under a cloak of secrecy. There are at least 15 states that hold secret bar ethics’ panel evaluations and prevent involved parties from exer-cising First Amendment rights.17 There are many states where courts do not follow this Court’s rulings, and do so without any consequences.

In Oregon v. ICE, 555 U.S. 160, 171 (2009), Justice Ginsburg wrote: “We have long recognized the role of the States as laboratories for devising solutions to difficult legal problems. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

17 See R.M. v. Supreme Court of N.J., District XIII Ethics Committee, et al., 883 A.2d 369, 371 (2005), fn 2. “[15] States, including N.J., explicitly require grievants to preserve confiden-tiality . . . [16] jurisdictions either expressly exempt grievants from the confidentiality rule or . . . the rule applies only to disciplinary officials. . . . In the remaining[,] . . . rules of attorney discipline do not specify which participants are obligated to maintain confidentiality.”

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dissenting) (‘This Court should not diminish that role absent compelling reason to do so.’).” A similar argument was used by the Justice in Arizona State Legislature v. Arizona Independent Redistricting Commission, et al., No. 13-1314 (June 29, 2015), at 32.

In a dissent, Justice Thomas questioned the ar-bitrary application of this axiom. At page 81, he wrote: “The Court’s characterization of this as direct democracy at its best is rather like praising a plebi-scite in a ‘banana republic’ that installs a strongman as President for Life.”

Using states as laboratories allows testing of legal proposals, but this case presents compelling reasons to dismantle those labs. One cannot turn a blind eye to abuses of constitutional rights by the legal profession.

I. THE COMMITTEE’S EVALUATION DENIED

DUE PROCESS.

A. The Pet’r’s Evaluation Took Place 44 Months After the Pet’r Passed the Bar Exam.

In Barry v. Barchi, 443 U.S. 55, 66 (1979), this Court questioned due process when a hearing was not timely. The Barry Court said: “[T]he consequences to a [law Applicant] of even a temporary [delay] can be severe; and we have held that the opportunity to be heard must be ‘at a meaningful time and in a mean-ingful manner.’ ”

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The Committee took about four years before issuing their “report.” It took about six months to appeal in the New York Courts. It appears that the courts failed to review Pet’r’s brief or acknowledge any mistakes in the Committee’s report.

B. The Report Used Actions that Were Up to

22 Years Old without Reviewing Records.

The report reviewed past activities that were very old but never asked the Pet’r for available records or transcripts. In the last 20 years, the Pet’r’s skills have changed. He graduated from an ABA approved school. He went to school to improve his skills and because of the biases against non-attorneys in courts.

The decisions against the Pet’r were prior to the completion of formal legal training and failure of courts to function based on the Pet’r’s individual knowledge and/or expertise.

None of the Pet’r’s actions was criminal. Florida ignored some records submitted by the Pet’r and accepted the questionable testimony of their General Counsel. (Pet’r accused the General Counsel of violating RPC 3.3 Candor Toward the Tribunal, and 8.4 Mis-conduct.)

Without independently reviewing the record, New York accepted Florida’s report even when they were sent alternative explanations and facts.

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Over the years, issues that Pet’r raised and appealed have been accepted (IRS ruling about taxing the sale of houses by non-resident parents; modifi-cation of child support based upon a household’s changed circumstances; right to counsel and rebuttable presumptions; recognition of PAS; the electronic submission of court papers; etc.).

C. The Report Did Not Use References

From Those Who Knew the Pet’r for Years.

When evaluating his character and fitness, New York failed to contact references who knew the Pet’r for up to 40 years. There was no review of the Pet’r’s 16+ references. In Konigsberg v. State Bar of Califor-nia, 353 U.S. 252, 264 (1957), this Court said: “A person called on to prove his character is compelled to turn to the people who know him. Here, [about 16] individuals who had known [Pet’r Eisenstein] at dif-ferent times during the past [8-40] years attested to his character. These testimonials came from persons in every walk of life.”

The Committee had at least 14 letters from people who knew the Pet’r for many years. These letters were from a judge, lawyers from three states, teachers, a minister and others. The Committee did not contact any of the individuals. It had the Florida

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transcript of four witnesses who testified positively on the Pet’r’s behalf.18

The Committee’s report A7, ¶ 2 was not “based upon consideration of the whole record. . . .” In Konigsberg v. State Bar of California, 353 U.S. 252, 258 (1957), the Court compared a review by a state bar review committee with a criminal action because of the consequences associated with a bar’s actions. The Court said:

. . . [R]elaxing standard[s] in criminal cases are obvious – such cases may involve forfeiture of the accused’s property, liberty, or life. While this is not a criminal case, its con-sequences for [Pet’r] take it out of the ordi-nary run of civil cases. The Committee’s action prevents him from earning a living by practicing law. This deprivation has grave consequences for a man who has spent years of study and a great deal of money in [prepa-ration].

In this action, the members of the Committee omitted information about character and fitness. They also omitted and altered facts and failed to use due diligence. They used actions and facts that were contradicted by a 20 year old transcript that they never requested.

18 N.Y. requested the 400 page Florida transcript. All wit-nesses spoke positively and said the Pet’r was honest, helpful, and trustworthy and would be a good lawyer.

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Their determination was arbitrary, capricious and inconsistent with information available to them. As an example, many of the actions the Pet’r brought were appeals from lower courts. Pet’r appealed those decisions to this Court four times. Rather than list this as four actions, the Committee listed the number as 12 (4 x 3). To be fair, Pet’r listed the appeals and the Committee failed to combine them but counted them separately.

D. Due Process Has Many Components In-

cluding an Evaluation Using the Mathews v. Eldridge Balancing Factors.

Due process challenges require balancing three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and third, the gov-ernment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The New York Admission rules appear to by-pass the Mathews criteria.

There is no rebuttal presumption or reconsidera-tion by the Committee to review their errors. Errors occurred because they only held one short meeting to review the Pet’r’s entire life. The Pet’r spent years in law school and additional time studying to pass the

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bars. The appellate courts’ rubber stamped the Com-mittee’s report. The courts never reviewed the Pet’r’s rebuttal that questioned errors in law and factual errors.

The Committee’s report relied upon Florida’s report that contained significant errors. Their report appeared to overlook Pet’r’s submissions that ques-tioned the Florida Board’s report. Florida does not have reciprocity with any other state. The Pet’r’s review was like the children’s game of telephone where the story at the end of the line did not reflect the initial source message. This Court has recognized that omitting evidence from a criminal case is justifi-cation for overturning a decision based on due pro-cess. See Giglio v. U.S., 405 U.S. 150, 153-55 (1972); Connick v. Thompson, 131 S. Ct. 1350 (2011); and Brady v. Maryland, 373 U.S. 83 (1963).

There is no remedy in Mathews to account for improper behavior when evaluating due process by an administrative group. The Pet’r notified the Com-mittee and requested an opportunity to submit addi-tional information. However, the New York procedure only allows a review by an appellate court. The decisions should be overturned based upon conflicting information and errors.

In Konigsberg v. State Bar of California, 353 U.S. 252, 273 (1957), the court said:

. . . States [must be] free to select their own bars, but . . . the State [must] not exercise this power in an arbitrary or discriminatory

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manner nor . . . to impinge on the freedom of political expression or association.

In the instant case, several of the Committee’s determinations were subjective, arbitrary and capri-cious. The Committee’s decision “involves the appli-cation of ‘moral character,’ which has shadowy . . . bounds.” See Schware at 249. When reviewing the severity of Pet’r’s actions, one must question the determination. The New York report criticized Pet’r’s IRS issues but appeared to exaggerate the severity of all actions. He overpaid his income taxes before they were due. He brought actions to improve the legal system (some of them later were found meritorious). He did not commit crimes but tried to use a complex mechanism, courts, to change rules.

Their report and decision criticized political speech and court actions that occurred in the past. This Court has addressed political speech in evaluat-ing a candidate’s character and fitness. The speech criticized was based on actions prior to going to law school. They said that he was not contrite when confronted with sanctions that were 12 and 20 years old. These issues have been reviewed supra.

II. THE PET’R’S PRIVILEGES AND IMMUNI-

TIES WERE VIOLATED WHEN HE WAS NOT APPROVED FOR THE BAR.

Pet’r was denied the right to practice law based upon conjecture about the future, old misstated historical events and actions prior to law school. In Piper at 277, the Court said: “that the opportunity to

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practice law is a “fundamental’ ” right. Without clear justification, the denial violates the Privileges and immunities Clause of Art. IV, § 2 of the Constitution.” Id. 279-288.

When the Committee report questioned the Pet’r’s right to petition, they criticized both past actions and predicted future actions. In In re McDonald, 489 U.S. 180 (1989), the Court limited McDonald’s access to the Court. He filed about eight actions a year for 18 years (144 actions). Id. at 181-82. In McDonald, three Justices joined Justice Brennan’s dissent. The major-ity presumed all future actions would be frivolous. Justice Brennan noted that even though a party files frivolous actions, no one can insure that a future action will not be meritorious. Id. at 187.

Later, in In re Sindram, 498 U.S. 177, 181 (1991), the court again limited access. In a dissent, Justice Marshall said that “clever attorneys manage to pack-age these filings so their lack of merit is not immedi-ately apparent” and the court “expends more time wading through frivolous paid filings than through frivolous in forma pauperis filings.” The Justice con-cluded that “[b]y closing our door today to a litigant like . . . Sindram, we run the unacceptable risk of impeding a future Clarence Earl Gideon.” Sindram filed 43 actions in three years. Id. at 177.

In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Court decided that courts can use inherent power to sanction parties who have overburdened courts. In Chambers, his lawyers participated in submitting false and fraudulent papers to delay and impede

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specific contract performance. In a five-four decision, the dissents (by Justice Kennedy joined by the Chief Justice and Justice Souter, and a concurring dissent by Justice Scalia) were concerned that the decision excessively expanded the power of courts.

These cases granted courts the power to sanction, and they limited petitions under the First Amend-ment. The dissenting opinions were concerned with courts going beyond their limits both in sanctioning parties and in closing the courthouse doors. The dissents were concerned that the initial decisions would be expanded and would result in an abuse of rights by courts.

In the instant case, the Pet’r filed fewer than 21 actions in 25 years. The courts have delegated their powers to a group that criticized the Pet’r for past actions by predicting the future and denied him the right to become an attorney.

III. HAVE THE COMMITTEE AND COURTS

LIMITED THE FIRST AMENDMENT?

A. The Report Attacked the Pet’r’s Right to Petition Government for Redress of Grievances.

The Committee criticized the Pet’r for exercising his right to file court actions. They said in their report (A9, last ¶) that the Pet’r had filed more than 21 actions over 20-25 years but erred. They included appeals in their count and actions filed against the Pet’r. They overstated the number of actions the Pet’r

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brought. The Pet’r only filed three actions over the last 12+ years. See P.16-17, supra.

The review failed to look at the causes of action or how courts and policy have changed and now agree with some of Pet’r’s positions. P.16, fn.10 supra (see Turner), P.18, fn.15 supra (electronic documents), P.23, ¶ 3. Over years, similar actions when brought by attorneys have proven successful. See Turner v. Rogers, 564 U.S. ___ (2011), supra.

There are many cases where this Court has ruled against state bars and states that tried to limit access to the courts. See Johnson v. Avery, 393 U.S. 483 (1969); see also NAACP v. Button, 371 U.S. 415 (1963), and its progeny.

In many of these cases, the Court recognized that the organized bar or rules were denying access to courts. The Pet’r’s intent was to assist indigent and middle class persons at minimal cost. The Committee fails to note that the organized bar has priced them-selves out of reach for a large segment of the population.

B. New York has Prior andPost Hearing

Speech Restraints.

N.Y. Jud. Law § 90(10) places prior restraints on parties who are the subject of investigations and also upon a complainant. However, the N.Y. court can grant access or publish information about a complaint

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with or without notification.19 This is very restrictive and prohibits a complainant and the charged party from disclosing any information about the complaint. In order to have records released, the party being investigated or the complainant must file a motion to release the records. A problem with confidentiality is others who have also been victims may not file com-plaints. When a complaint is filed and made public, others are more willing to file their complaints.20

In Butterworth v. Smith, 494 U.S. 624, 632 (1990), this Court found a law could be used to punish a reporter based upon his publishing stories about his grand jury testimony. The Court noted that there was no action pending that would place witnesses or members of the Grand Jury at risk. The Court said:

[W]here a person “lawfully obtains truth-ful information about a matter of public significance,” . . . “state officials may not

19 See http://codes.lp.findlaw.com/nycode/JUD/4/90 for N.Y. Jud. Law § 90(10) (Last visited June 20, 2015). N.Y. Jud. Law § 90(10) says, in part, “[A]ll papers, records and documents upon the application or examination . . . for admission as an attorney and . . . upon any complaint[s], . . . relating to the conduct or discipline of an attorney . . . shall be sealed and be deemed private and confidential. . . . [U]pon good cause . . . Justices . . . having jurisdiction . . . in their discretion, . . . to permit to be divulged all or any part . . . of such papers. . . . Without regard to the foregoing, [I]n the event that charges are sustained by the justices . . . the records . . . in relation thereto shall be deemed public records.” 20 When Tiger Woods’ affair was made public many other women reported relationships with him.

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constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

[The state] seeks to punish the publication of information relating to alleged govern-mental misconduct – speech which has tradi-tionally been recognized as lying at the core of the First Amendment.

Butterworth at 632.

This Court has protected an employee’s right to testify when summoned. See Lane v. Franks, No. 13-483 (2014). In Gentile v. Nevada, 501 U.S. 1030 (1991), it was determined that an attorney should not be sanctioned when a bar rule was vague and arbi-trary. Gentile waived confidentiality after his disci-plinary hearing. In about a dozen cases, this court has opened up proceedings and questioned laws that impact First Amendment speech.

In R.M. v. Supreme Court of New Jersey, District XIII Ethics Committee, et al.,21 883 A.2d 369, 371

21 In R.M., the court cites to many of this Court’s First Amendment cases including: Roth v. U.S., 354 U.S. 476, 484 (1957) (“[T]he First Amendment protects [a]ll ideas having even the slightest redeeming social importance”;) Shelton v. Tucker, 364 U.S. 479, 488 (1960) (“[E]ven if the regulation of speech advances a compelling interest, the State must . . . show the regulation is narrowly tailored to achieve that interest”;) Land-mark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) (Held unconstitutional, as applied to the news media, a state law that criminally punished anyone who disclosed information about judicial ethics proceedings); Bigelow v. Virginia, 421 U.S. 809,

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(2005), the court said: “We agree that, as written and as applied, [the rule governing confidentiality] vio-lates the First Amendment because it is not narrowly tailored to serve a compelling interest.” R.M. argued that the rule (law) “is an impermissible restraint on free speech because it prevents . . . making truthful statements about the ethics process, including . . . that she filed a grievance. It also unduly suppresses criticism of the system of attorney discipline.” The Court said: “Protecting the reputations of attorneys and the bar does not justify restricting a grievant’s speech, and, in fact, such restrictions breed resent-ment rather than respect.” R.M. at 381.

Similarly, N.Y. Jud. Law § 90(10) suppresses speech and criticism of the attorney disciplinary and application system and is unconstitutional.

IV. THE REPORT WAS SUBJECTIVE, ARBI-

TRARY AND CAPRICIOUS.

The Committee’s report used conjecture to pre-dict future conduct. Examples of arbitrary and sub-jective treatment appear throughout the report. The report was limited, and this was reflected in most sections where the Pet’r expanded them and corrected some mistakes. The Summary (A6-7) was limited and did not use the “whole record.” (See A7, ¶ 2). The Background section did not specify what the Pet’r did when working for the City (30 years). (See A7-8).

811 (1975) (Made the Free Speech Clause applicable to the states through the Fourteenth Amendment).

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A9, ¶1-2 is replete with subjective judgments. Ex. “appears sincere,” “sincerity and openness,” “troubled by,” “view of the legal system,” “apparent tendency,” “honesty and good faith,” “inequities in the system.”

Pages A12-14 of the report were reviewed first because there were at least 15 errors and misstate-ments about Pet’r’s interaction with the IRS. The report criticizes the Pet’r in an action that he settled favorably against the IRS. (See P.4-12, supra).

The report uses an ad hominem attack that im-plies that the Pet’r does not follow rules. The Pet’r’s work history as a manager in the computer field shows that he follows rules and has for more than 30 years. (See P.13, supra “Background”). There were many errors in the Committee report, and one may question the due diligence in drafting it.

In the report’s conclusion (A14-15), it uses defini-tive statements like: “does not appear to possess the appropriate perspective or the appreciation of the law as a tool and not a weapon.”

(There are procedures that allow the bar to sanction and disbar lawyers. That mechanism is used after the fact not prior to charges and due process. The Committee failed to consider that almost all of the Pet’r’s actions were prior to attending law school.)

Next, the report says: “He has demonstrated a pattern of unwarranted litigious behavior against perceived opponents in their official and personal capacities.”

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(The Pet’r tried to settle the IRS action for two years. He waited patiently for formal hearing from Florida and New York. Some of his past actions were meritorious but were not properly presented. In the last 12+ years, the Pet’r appealed three actions against branches of government. He used the ave-nues granted in the First Amendment. He appealed the denials by Florida and New York to grant him a license to practice law.)

The next future prediction says “[H]e would be likely to abuse his authority as an Officer of the Court and act in a manner contrary to the interests of justice and the public good if admitted to the Bar.”

(Petr’s law school never taught future predictions or mind reading. The legal pro-fession is not acting in “the interest of justice and the public good.” A majority of people cannot get reasonable, affordable, competent legal representation. This issue is not a short term problem.)22 23

22 As an example of “justice and the public good” one can Google “legal services for the poor and middle class.” There were about 3,680,000 results. About “60 to 75 percent of low-income and middle class people with civil legal problems never receive help from lawyers.” They cannot afford it. https://www.washington post.com/opinions/closing-the-justice-gap/2015/03/13/a5f576c8-c754- 11e4-aa1a-86135599fb0f_story.html (Last visited 8/20/15). 23 See Holder Backs Suit in New York Faulting Legal Ser-vice for Poor – http://www.nytimes.com/2014/09/25/nyregion/ holder-backs-suit-in-new-york-faulting-legal-service-for-poor.html? _r=0 (Last visited 8/26/15).

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V. STATEMENT OF RELIEF SOUGHT

Some New York “issues” can be corrected by ap-plying the Mathews “due process” factors (timely review, contacting long term references, due diligence, allowing a rebuttal to the Committee prior to appeal-ing).

The Pet’r’s evaluation used actions that were up to 22 years old to judge Pet’r’s current character and fitness. They ignored his graduation from law school and that he passed bar exams in New York, Florida and possibly Kentucky. In the last 12 years, the Pet’r was in three actions that were all defensive. Pet’r requests that New York change an unwritten policy that delays an application and uses subjective, arbi-trary and capricious evaluations when denying bar applications.

There is a controversy in many states that limits First Amendment rights by members of the legal pro-fession and those who complain about the legal pro-fession. (See N.Y. Jud. Law § 90(10) related to confidentiality). It allows quasi government organiza-tions to limit speech and criticism. N.Y. Jud. Law § 90(10) is overly broad and limits critical speech about a branch of government and harms the public. The Court should determine it is unconstitutional. Finally, the Pet’r would request that the Court grant him the opportunity to become a member of the New York bar.

--------------------------------- ---------------------------------

41

CONCLUSION

Based upon the foregoing analysis, the judgment of the Committee and the New York Court of Appeals should be reversed.

Dated: September 15, 2015

Respectfully submitted,

IRWIN EISENSTEIN, Pro Se

i

INDEX OF APPENDICES

Page

There have been limited opinions by the New York Courts. The following documents are included in the appendix:

An order from Supreme Court, N.Y. App. Div., Third Dept., denying a petition for an order admitting him to practice notwithstanding the Committee’s adverse determination. Dated Dec. 24, 2014 ....................................................... A1-2

An order from Supreme Court, N.Y. App. Div., Third Dept., denying a motion to have the N.Y. Court of Appeals review the constitu-tionality of Judicial Law § 90(10) was denied, however, the Petitioner was allowed to use his records. Dated Nov. 13, 2014 ........................ A3-4

Decision of Committee on Character and Fit-ness for the Third Judicial District recom-mends the Petitioner’s Application be denied. Dated Sept. 8, 2014 ........................................... A5-15

An order from N.Y. Court of Appeals denying Petitioner’s motion for leave to appeal the determination dated Dec. 24, 2014, and also denying a review of the constitutionality of Judicial Law § 90(10) dated Nov. 13, 2014, as untimely. Dated May 14, 2015 ............................. A16

A1

State of New York Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 24, 2014 D-96-14

In the Matter of the Application for Admission of Anonymous.

MEMORANDUM AND ORDER

Calendar Date: November 14, 2013

Before: Lahtinen, J.P., Stein, McCarthy, Garry and Devine, JJ.

Per Curiam.

Applicant is a resident of Florida, where he graduated from law school in 2008. He passed the. Florida bar exam in February 2009 and the New York bar exam in July 2010. Applicant has been denied admission to practice in Florida.

Following a hearing on his application for admis-sion to practice in New York, this Court’s Committee on Character and Fitness issued a decision recom-mending that the application be disapproved. Appli-cant now petitions for an order admitting him to practice notwithstanding the Committee’s adverse decision (see Rules of App Div, 3d Dept [22 NYCRR] § 805.1[m]).

The record supports the Committee’s conclusions that applicant exhibits a “disregard for applicable rules” and an “apparent tendency to use the courts as

A2

a tool for personal vindication and retribution rather than the redress of legitimate grievances founded upon established legal principles, honesty and good faith.” Accordingly, we agree that applicant lacks the character and general fitness requisite for an attor-ney and counselor-at-law (see Judiciary Law § 90[1][a]), and we therefore deny his petition.

Lahtinen, J.P., Stein, McCarthy, Garry and Devine JJ., concur.

ORDERED that the petition for an order grant-ing the application for admission to practice notwith-standing the Committee’s decision is denied.

ENTER:

/s/ Robert D. Mayberger

Robert D. Mayberger Clerk of the Court

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State of New York Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 13, 2014

In the Matter of the Application for Admission to the New York State Bar by IRWIN R. EISENSTEIN.

DECISION AND ORDER ON MOTION

Motion for stay/continuance and other relief.

Upon the papers filed in support of the motion, and no papers having been filed in opposition thereto, it is

ORDERED that the motion is granted, in part, without costs, to the extent that (1) the applicant’s application for admission and attachments thereto, (2) the report of the subcommittee of the Committee on Character and Fitness dated October 15, 2013, and (3) the Decision of the Committee on Character and Fitness for the Third Judicial District dated Septem-ber 8, 2014 are hereby divulged to the applicant pursuant to Judiciary Law § 90(10), and, to every other extent, the motion is denied.

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Peters, P.J., Lahtinen, Stein, McCarthy, and Garry, JJ., concur.

ENTER:

/s/ Robert D. Mayberger

Robert D. Mayberger Clerk of the Court

A5

[LOGO] State of New York Supreme Court, Appellate Division Third Judicial Department Admissions Office P.O. Box 7350, Capitol Station Albany, NY 12224-0350

Robert D. Mayberger Daniel C. Brennan Clerk of the court Principal Attorney

(518) 471-4778 fax (518) 471-4749

http://www.nycourts.gov/ad3/admissions

DECISION OF

COMMITTEE ON CHARACTER AND FITNESS

FOR THE THIRD JUDICIAL DISTRICT

Dated: September 8, 2014

In the Matter of the Application for Admission of

IRWIN R. EISENSTEIN.

Decision Pursuant to the Rules of the Appellate Division, Third Department (see 22 NYCRR 805.1[l]):

The New York State Board of Law Examiners certified applicant for admission to the Appellate Division, Third Department, based upon his passing of the July 2010 Bar exam.

A three-member subcommittee of this Committee on Character and Fitness for the Third Judicial

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District held a hearing on his application on May 8, 2014, pursuant to this Court’s rules (see 22 NYCRR 805.1[l]). Upon review of the subcommittee’s report and the transcript of the hearing, this Committee, acting by quorum, confirms the report (copy attached) and recommends disapproval-of the application for the reasons stated in the report.

* * * IN THE MATTER OF THE APPLICATION OF IRWIN R. EISENSTEIN

: : : : : :

REPORT AND RECOMMENDATION OF THE HEARING SUBCOMMITTEE (Committee on Character and Fitness)

Summary

On May 8, 2014, this Hearing Subcommittee of the Third Judicial Department’s Committee on Char-acter and Fitness conducted a hearing pursuant to section 805.1(f) of the rules of the Appellate Division, Third Department, on the application for admission to the New York State Bar of Irwin R. Eisenstein (“Applicant”). The hearing was held in an Appellate Division conference room located on the 6th floor of the Justice Building at the Empire State Plaza in Albany, New York.

At the hearing, Applicant appeared pro se, pre-sented testimony and evidence, and responded to questions posed by the Subcommittee members. Applicant’s application and supporting documents, on

A7

file in the Admissions Office, were moved into evi-dence as were all documents presented by Applicant at the hearing. Applicant’s demeanor was appropriate throughout the hearing.

Following the hearing, this Subcommittee re-quested a copy of Applicant’s complaint in a recent lawsuit he commenced against the United States Internal Revenue Service along with a brief state-ment as to the status of that action, as the matter was mentioned during the hearing and also refer-enced in Applicant’s January 7, 2014 letter to the Admissions Office.

For the reasons that follow, and based upon consideration of the whole record, it is the unanimous opinion of this Subcommittee that that [sic] Mr. Eisenstein lacks the requisite character and fitness for admission to the New York State Bar. Accordingly, we recommend that Mr. Eisenstein’s application for admission be denied.

Background

Applicant resides in Florida, but lived most of his life in New York State and currently has family and friends living in New York State. Applicant is a graduate of Brooklyn College (B.A.), Baruch College (MBA), and Barry University School of Law in Flori-da (J.D., 2008). After retiring from a job with the City of New York, where he worked for 30 years, Applicant began law school. He passed the Florida Bar exam in 2009, and passed the New York State Bar exam in

A8

July of 2010. Applicant has taken the Kentucky Bar exam but, pursuant to the rules of the Kentucky Bar, will not be advised of the results of such examination until all matters related to his pending applications for admission in other states are resolved.

Following Applicant’s successful completion of the Florida Bar exam, the Florida Board of Bar Examiners conducted an extensive hearing regarding Applicant’s qualifications for admission and ultimate-ly issued a lengthy report in 2012 recommending that he not be admitted in Florida and that he be disquali-fied from reapplying for admission for a period of two years. Specifically, the “Findings of Fact and Conclu-sions of Law” issued by the Florida Board upheld numerous “Specifications” against Applicant. Appli-cant has sought review of the Florida Board’s deci-sion, and that review is pending.

Following Applicant’s successful completion of the New York State Bar exam, consideration of his application for admission was deferred pending final disposition of his application for admission to the Florida Bar. On May 16, 2013, a three member sub-committee conducted an interview of Applicant. Following the interview, the subcommittee recom-mended disapproval of his application for admission. That recommendation was referred to a Committee quorum for review. The quorum also voted to disap-prove the application. Thereafter, Applicant request-ed a formal hearing on his application, pursuant to 22 NYCRR § 805.1[f]-[l]. The formal hearing was held on May 8, 2014.

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Applicant’s May 8, 2014 Hearing

During the hearing, and in response to questions from the Subcommittee members, the Applicant appeared sincere and was willing to openly discuss the circumstances related to his past difficulties, including his mental health issues, his protracted and acrimonious divorce proceeding, his late income tax filings, and his history of pro se litigation. While Applicant’s sincerity and openness were not at issue during the hearing, the Subcommittee became in-creasingly troubled by Applicant’s judgment, view of the legal system, and apparent tendency to use the courts as a tool for personal vindication and retribu-tion rather than the redress of legitimate grievances founded upon established legal principles, honesty, and good faith.

Applicant represented himself in his divorce proceeding that began in 1990. At the hearing, he described the proceedings as a “very nasty and long divorce” and “a very traumatic experience” that was difficult for many years and that exposed him first-hand to “inequities in the system.” Applicant dis-closed that he attempted suicide in 1992, and that he suffers from major depressive mood disorder that is controlled and treated with prescribed medication.

Applicant has been involved in a litany of more than twenty-one (21) pro se civil legal actions. A majority of these actions sprang from or were in relation to his divorce proceeding. Applicant, acting pro se, sued the judge that presided over his divorce

A10

proceedings, the attorneys who represented his ex-wife, his former mother-in-law, and the psychologists who evaluated him and treated his son. During. the course of these actions, which were dismissed, Appli-cant has, among other things, been sanctioned by the New Jersey State and Federal courts, and was charged with contempt in New Jersey in 1994. His complaints were found to have contained unsubstan-tiated and sometimes incomprehensible allegations of conspiracy, fraud and misconduct against the defen-dants. While Applicant acknowledged at the hearing that some of his past behavior was improper and stated that he does not intend to repeat it, he did not appear contrite with regard to the past actions for which he was charged with contempt or for which he was sanctioned. Applicant believes that his pro se actions failed to yield the relief requested because he “didn’t bring the actions as a lawyer.” Applicant stated his belief that had he been an attorney at the time of many of his pro se actions, the outcomes would have differed; not necessarily because of the subsequent legal training or knowledge of the law gained in law school, but rather because he believes that attorneys are treated differently than pro se litigants and accorded more deference by judges and the legal system. Applicant also stated that he be-lieves that he was not admitted to the Florida Bar because the information presented against him at the hearing held by the Florida Board of Bar Examiners and published in its subsequent report was “twisted:” In addition, after admitting at the hearing that he has sued judges “probably four or five times,” Applicant

A11

explained that his “regrets about it” were that “ . . . the earlier actions, looking back, were very simplistic and they weren’t formatted correctly.”

Applicant admittedly perpetrated a fraud upon the court during an action related to his divorce proceedings. In 1994, at a time when Applicant was prohibited by the court from contacting his ex-wife’s employer, he engaged in an effort to expose what he incorrectly believed to be a pattern of inappropriate communications between the judge and his ex-wife’s attorneys by presenting the judge with a letter which appeared to have been sent by him to his ex-wife’s employer. Despite his representation, Applicant had not actually sent the letter to the employer, but rather was trying to trick the judge by testing wheth-er the judge would share the letter with his ex-wife’s counsel. The judge relied upon Applicant’s misrepre-sentation and shared the letter with opposing counsel to avoid an ex parte communication. In the opinion of the Subcommittee, in recounting these events at the hearing, Applicant did not appear to appreciate the significance and gravity of having admittedly perpe-trated a fraud on a court in relation to his divorce proceedings, and expressed no real remorse in rela-tion thereto. Applicant appeared to believe that the most problematic aspect of that circumstance was his past lack of knowledge of the rules applicable to ex parte communications. The Subcommittee finds this deeply troubling and reflective of Applicant’s current lack of requisite character, fitness, and good judg-ment.

A12

In addition, Applicant’s approach to filing his federal income taxes evidences an inexplicable disre-gard for applicable rules. He has a history of filing his federal taxes late (with late filings in tax years 2006, 2007, 2008, 2009, and 2010). At the hearing, Appli-cant unapologetically admitted, “I do file my taxes late.” Applicant’s process for filing his annual income tax returns during those years, as he explained at the hearing, was unorthodox at best. First, Applicant would contact the Internal Revenue Service (IRS) and request that it provide him with his 1099s and other necessary income tax statements. Once received, Applicant’s practice was to file his income tax forms with the IRS without calculating the exact amount of taxes actually owed. He would include a check with the filing in an amount that he believed was likely to constitute an overpayment for that tax year. Because he did not actually calculate the exact amount of taxes owed or due to be refunded and enter that information on the applicable tax form at the time of filing, Applicant would cross out and not sign the required “jurat,” which states “Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.” After filing, Applicant would rely on the IRS to calculate the exact amount of taxes actually owed and to process a refund reflecting the balance between the amount actually owed and the “overpayment” previously submitted.

A13

By letters from the IRS dated July 14, 2011 and October 24, 2011, Applicant was notified that it was assessing a fine of $5,000 against him for filing a “frivolous tax return” for the tax year 2009 pursuant to 26 U.S.C. § 6702 (see Applicant’s Letter to the Admissions Office, May 20, 2014, Complaint at page 2). Applicant promptly paid the fine assessed against him, but contested the allegations against him through various means of correspondence with the IRS and by filing a complaint with the Department of the Treasury. Thereafter, the Applicant was informed by the IRS that there was no longer a penalty as-sessed against him in relation to the alleged frivolous tax return and that it would be returning the $5,000 to his account, but that a separate penalty would be assessed against him for filing a late return.

On October 15, 2013, Applicant commenced a civil action pro se in the United States District Court for the Middle District of Florida, Orlando Division, against “The United States of America,” the “Internal Revenue Service Commissioner” in his official and personal capacities, and “Unknown and Named Officials of the IRS,” individually and in their official capacities (Applicant’s Letter to the Admissions Office, May 20, 2014, Complaint at pages 1-2). There-in, Applicant alleges violations of his First, Fifth and Fourteenth Amendment rights (including Bivens claims) and the Administrative Procedure Act, and seeks, among other things, compensatory and puni-tive damages (Applicant’s Letter to the Admissions Office, May 20, 2014, Complaint at pages 17, 20, 26,

A14

and 29). On May 12, 2014, United States Magistrate Judge Karla Spaulding issued a Report and Recom-mendation that the Court grant the United States’ motion to dismiss (based upon lack of subject matter jurisdiction and, with regard to the Bivens claims, for failure to state claims upon which relief can be grant-ed), dismiss Applicant’s claims without prejudice, direct the Clerk of the Court to terminate Applicant’s motion to strike, and allow Applicant the opportunity to file an amended complaint pursuant to the guide-lines provided in the Magistrate’s Report and Rec-ommendation (Applicant’s Letter to the Admissions Office, May 20, 2014, Report and Recommendation at page 31). It is not known whether the Court accepted the Recommendation of the Magistrate. By letter from the Department of Justice dated June 16, 2014, Applicant was informed that it accepted his settle-ment offer and pursuant thereto, that the IRS “is being authorized to schedule an overpayment of the $5,000 frivolous return penalty for 2009, plus interest according to law . . . [and] will refund [his] filing fee of $400” in exchange for “a stipulation for dismissal with prejudice.” Applicant signed the settlement and stipulation for dismissal with prejudice that same day, and provided a copy of the signed document to the Admissions Office .for consideration.

Conclusion

Based upon the hearing record, the documents submitted upon request following the hearing and our interview of Mr. Eisenstein, it is the unanimous

A15

opinion of this Subcommittee that he lacks the requi-site character and fitness for admission to the New York State Bar. Mr. Eisenstein does not appear to possess the appropriate perspective or the apprecia-tion of the law as a tool and not a weapon. He has demonstrated a pattern of unwarranted litigious behavior against perceived opponents in their official and personal capacities. He has commenced numer-ous pro se lawsuits which are invariably dismissed and his behavior has continued despite his successful completion of law school. He has failed to recognize and show appropriate remorse for his fraudulent and contemptuous behavior before the courts. Mr. Eisen-stein’s prior actions, as discussed above, indicate he would be likely to abuse his authority as an Officer of the Court and act in a manner contrary to the inter-ests of justice and the public good if admitted to the Bar. Accordingly, consistent with our responsibility to protect the public and the integrity, of the legal system, we recommend that Mr. Eisenstein’s applica-tion for admission be denied.

Dated: June 23, 2014

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State of New York Court of Appeals

Decided and Entered on the fourteenth day of May, 2015

Present, HON. JONATHAN LIPPMAN, Chief Judge, presiding.

Mo. No. 2015-171 In the Matter of the Application for Admission of Anonymous, Appellant.

Appellant having moved for leave to appeal to the Court of Appeals in the above cause;

Upon the papers filed and due deliberation, it is

ORDERED, that the motion, insofar as it seeks leave to appeal from the November 2014 Appellate Division order, is dismissed as untimely (see CPLR 5513[b]); and it is further ORDERED, that the motion for leave to appeal is otherwise denied.

/s/ Andrew W. Klein Andrew W. Klein

Clerk of the Court